Opinion Flash

August 30, 2004
Volume 10 — Number 167

Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

This Issue (IN THIS ORDER):
00 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
09 New Opinion(s) from the Tennessee Court of Appeals
06 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


CHARLES WEBB V. PRINTPACK, INC.

Court:TSC - Workers Comp Panel

Attorneys:                          

Michael Tichenor, Memphis, Tennessee, for the appellant, Printpack,
Inc.

Scott G. Kirk, Jackson, Tennessee, for the appellee, Charles Webb.

Judge: ACREE

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn.Code.Ann. S50-6-285 (e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  The trial
court found that the employee has a fifteen (15%) percent medical
impairment rating and has a vocational disability of thirty-five (35%)
percent permanent partial disability to the body as a whole.  In this
appeal, the employer contends the trial court erred in relying upon
the expert testimony of Dr. Joseph C. Boals, III, the plaintiff's
independent medical examiner, and that the trial court's award was
excessive.  We agree and reverse the trial court's award.  We find the
Employee has a twenty-five (25%) percent permanent partial impairment
rating to the body as a whole.

http://www.tba.org/tba_files/TSC_WCP/webbcharles.wpd

SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0830.wpd

RON COLQUETTE v. PETER ZALOUM

Court:TCA

Attorneys:                          

Peter Zaloum, Knoxville, Tennessee, pro se Appellant.

Keith McCord and John L. McCord, Knoxville, Tennessee, for the
Appellee, Ron Colquette.

Judge: SWINEY

First Paragraph:

Ron Colquette ("Plaintiff") sued Peter Zaloum ("Defendant") claiming,
in part, that Defendant made fraudulent misrepresentations in
connection with the sale of his business and the lease of his land to
Plaintiff, and that Defendant violated the Tennessee Consumer
Protection Act.  After a bench trial, the Trial Court entered a Final
Judgment holding, inter alia, that Plaintiff was entitled to damages
in the amount of $70,054.35, plus pre-judgment interest; that
Plaintiff was entitled to punitive damages in the amount of $15,000;
and that the Tennessee Consumer Protection Act was not applicable to
this case.  Defendant appeals, and Plaintiff raises additional issues
concerning the applicability of the Tennessee Consumer Protection Act
to the facts of this case, and the amount of punitive damages awarded
to him.  We affirm.

http://www.tba.org/tba_files/TCA/colquetteron.wpd

COMMUNITY BANK OF EAST TENNESSEE v. TENNESSEE DEPARTMENT OF SAFETY

Court:TCA

Attorneys:                          

J. Myers Morton, and George W. Morton, Jr., Knoxville, Tennessee, for
Appellant.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, and Sarah Chambers McBride, Assistant Attorney
General, Nashville, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

The Claim Commissioner held Commission was without jurisdiction to
entertain claim on appeal.  We vacate Judgment and remand.

http://www.tba.org/tba_files/TCA/commubank.wpd

IN THE MATTER OF: D.A.E., ET AL.

Court:TCA

Attorneys:                          

John B. Bunnell, Newport, Tennessee, for the appellant, T.E.T.

Paul G. Summers, Attorney General and Reporter, and Douglas Earl
Dimond, Assistant Attorney General, for the appellee, State of
Tennessee Department of Children's Services.

Judge: SUSANO

First Paragraph:

The trial court terminated the parental rights of T.E.T. ("Mother")
with respect to her five minor children, D.A.E. (DOB: June 13, 1992),
J.H.E. (DOB: June 5, 1994), D.H.E. (DOB: June 13, 1995), J.E. (DOB:
June 30, 1996), and D.E. (DOB: January 15, 1998).  Mother appeals,
arguing that the evidence preponderates against the trial court's
finding - which the court made by clear and convincing evidence - that
Mother failed to substantially comply with the requirements of the
permanency plan.  We affirm.

http://www.tba.org/tba_files/TCA/dae.wpd

LUKE N. GIBSON, ET AL. v. CHRYSLER CORPORATION, ET AL.

Court:TCA

Attorneys:                          

Gail O. Mathes of Memphis; Michael C. Skouteris and George E.
Skouteris of Memphis For Appellant, Luke N. Gibson, a minor by
parents, Roger O. Gibson and Susan M. Gibson

Lawrence A. Sutter of Cleveland, Ohio; Joy Burns of Franklin,
Tennessee For Appellees Chrysler Corporation and Daimlerchrysler
Corporation

Judge: CRAWFORD

First Paragraph:

This is an appeal from a judgment entered on a jury verdict for
Defendant/Appellee.  Plaintiff/Appellant, a minor, was allegedly
injured when an integrated car seat in a vehicle manufactured and sold
by Defendant/Appellee malfunctioned.  Plaintiff/Appellant asserts
that: (1) the jurors conducted unauthorized experimentation with
certain exhibits, which constituted extraneous prejudicial information
under Tenn. R. Evid. 606(b); (2) that there is no material evidence on
which the jury could have based its verdict; (3) that the trial judge
failed to properly perform her duty as thirteenth juror; (4) that the
trial court erred in allowing an expert to testify outside the scope
of his expertise in violation of McDaniel v. CSX Transportation, Inc.,
955 S.W.2d 257 (Tenn. 1997); and (5) that the trial court erred,
either under Tenn. R. Evid. 702 and 704 or on the theory of judicial
estoppel, in excluding a portion of the testimony of a second expert. 
We affirm.

http://www.tba.org/tba_files/TCA/gibsonluken.wpd

DANIEL WAYNE GILL, SR., Individually, and for the use and benefit of
DANIEL WAYNE GILL, JR., deceased v. CITY OF CHURCH HILL and RODNEY E.
MILLER, JR., and RODDY E. MILLER, JR., (one and the same person)

Court:TCA

Attorneys:                          

Timothy R. Wilkerson, Kingsport, Tennessee, for Appellant.

K. Erickson Herrin, Johnson City, Tennessee, for Appellees, City of
Church Hill and Rodney E. Miller, Jr.

Paul G. Summers, Attorney General and Reporter, and P. Robin Dixon,
Jr., Assistant, Attorney General, Nashville, Tennessee.

Judge: FRANKS

First Paragraph:

Defendant engaged in so-called high speed chase of plaintiff's
intestate, which resulted in death of decedent.  The Trial Court
dismissed on Motion on the basis of Tenn. Code Ann. S 55-8-108(e).  On
appeal, we affirm.

http://www.tba.org/tba_files/TCA/gilldaw.wpd

HELEN GLEASON v. DANIEL P. GLEASON, III

Court:TCA

Attorneys:                          

Thomas F. Mink, II and Keith W. Blair, Nashville, Tennessee, for the
appellant, Daniel P. Gleason, III

G. Sumner R. Bouldin, Jr., Murfreesboro, Tennessee, for the appellee,
Helen Gleason.

Judge: FARMER

First Paragraph:

The trial court awarded Petitioner alimony arrearages of $7,250 plus
interest.  Respondent appeals, asserting the statute of limitations
and the defense of laches.  We modify the judgment of the trial court
and remand.

http://www.tba.org/tba_files/TCA/gleasonhelen.wpd

IN RE: ESTATE OF KATHLEEN LEE MEADE, Deceased, L. GRADY LEE, v. HELEN
JO GILLIAM

Court:TCA

Attorneys:                          

Mark D. Harris, Kingsport, Tennessee, for Appellant.

Kerry A. Musick, Blountville, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

A typewritten document and a handwritten document prepared later in
time were offered for probate.  The Trial Court rejected the
handwritten document and admitted the typewritten document to probate
as the Last Will and Testament of Deceased.  On appeal, we reverse.

http://www.tba.org/tba_files/TCA/meadekl.wpd

KENNETH SNELL, ET AL. v. CITY OF MURFREESBORO

Court:TCA

Attorneys:                          

John Rodgers and James P. Barger of Murfreesboro for Appellants,
Kenneth Snell and Twila Snell

Susan Emery McGannon and Richard W. Rucker of Murfreesboro for
Appellee, City of Murfreesboro

Judge: CRAWFORD

First Paragraph:

Plaintiffs appeal from trial court's dismissal of complaint for
failure to state a cause of action. Plaintiffs allege that trial court
erred in finding that Plaintiffs had no standing to challenge
annexation ordinance passed by City of Murfreesboro. Finding that the
trial court was correct in determining that Plaintiffs were not
entitled to challenge the annexation ordinance under Tennessee
declaratory judgment statute, we affirm.

http://www.tba.org/tba_files/TCA/snellk.wpd

GRETCHEN SWIFT v. JOHN CAMPBELL, ET AL.

Court:TCA

Attorneys:                          

Michael J. Passino, Nashville, Tennessee, for the appellant, Gretchen
Swift.

Paul G. Summers, Attorney General and Reporter, and Richard H.
Dunavant, Assistant Attorney General, for the appellees, John Campbell
and William Gibbons.

Judge: KOCH

First Paragraph:

This appeal involves the right to inspect and copy the contents of an
assistant district attorney general's files in a case involving a
prisoner on death row.  An assistant district attorney general for the
Thirtieth Judicial District denied the request of an attorney employed
by the Office of the Federal Public Defender to inspect and copy the
records he created while preparing for a concluded state proceeding
being challenged in federal court.  Thereafter, the requesting
attorney filed suit in the Chancery Court for Davidson County pursuant
to Tenn. Code Ann. S 10-7-505 (1999) asserting her right under Tenn.
Code Ann. S 10-7-503 (Supp. 2003) to inspect and copy the assistant
district attorney's records.  Following a hearing, the trial court
dismissed the petition based on Tenn. R. Crim. P. 16, the work product
doctrine, the law enforcement investigative privilege, and the
deliberative process privilege.  The requesting attorney has appealed.
 We have determined that Tenn. R. Crim. P. 16 protects the requested
records from disclosure because a federal proceeding challenging the
state proceeding for which the records were prepared is currently
pending.

http://www.tba.org/tba_files/TCA/swiftgret.wpd

STATE OF TENNESSEE v. GUADALUPE ARROYO, ALIAS

Court:TCCA

Attorneys:                          

Glen B. Rutherford, Knoxville, Tennessee, for the appellant, Guadalupe
Arroyo, Alias.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General;  Randall Eugene Nichols, District Attorney
General; and Philip H. Morton, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant entered guilty pleas to two counts of vehicular homicide
by intoxication and was sentenced to consecutive twelve-year terms of
imprisonment.  The defendant appealed the imposition of maximum
sentences and the order to serve the terms consecutively.  After this,
our second review, we again remand for a new sentencing hearing in
light of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531, 159 L.
Ed. 2d 403 (2004), and the trial court's failure to find specific
findings justifying the necessity for consecutive sentencing.

http://www.tba.org/tba_files/TCCA/arroyogalias.wpd

STATE OF TENNESSEE v. TIMOTHY E. BALLARD

Court:TCCA

Attorneys:                          

Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, Timothy
E. Ballard.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and Eleanor Cahill, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Timothy E. Ballard, was convicted of DUI, a Class A
misdemeanor, and driving on a revoked license, a Class B misdemeanor,
and was sentenced to an effective sentence of eleven months,
twenty-nine days, suspended except for sixty days, with the balance to
be served on supervised probation.  On appeal, he argues that his
sentence is excessive and that the trial court erred in denying full
probation or alternative sentencing.  Following our review, we affirm
the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/ballardtime.wpd

STATE OF TENNESSEE v. BRUCE FRANKS, JR.
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Chadwick G. Hunt, Savannah, Tennessee, for the Appellant, Bruce
Franks, Jr.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and John Overton, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Bruce Franks, Jr., pleaded guilty to arson, a Class C
felony, see Tenn. Code Ann. S 39-14-301(a)(1) (2003), and agreed to a
three-year, Range I sentence.  The trial court conducted a sentencing
hearing to determine the manner of service of the sentence and ordered
split confinement. The defendant appeals the confinement component of
his sentence.  We affirm.

http://www.tba.org/tba_files/TCCA/franksbjr_opn.wpd

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/franksbjr_con.wpd

CARLOS HAYNES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Lowe Finney, Jackson, Tennessee, for the appellant, Carlos Haynes.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; James G. Woodall, District Attorney
General; and Alfred L. Earls, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Carlos Haynes, pled guilty in the Madison County
Circuit Court to one count of possession of over one-half ounce of
marijuana with intent to sell and one count of possession of drug
paraphernalia.  He received a total effective sentence of two years
incarceration in the Tennessee Department of Correction. 
Subsequently, the petitioner filed a petition for post- conviction
relief, alleging that his counsel was ineffective and the trial court
erred in failing to pursue the issue of the identity of the
confidential informant whose tip led to the search of the petitioner's
home.  After an evidentiary hearing, the post-conviction court
dismissed the petition, and the petitioner now appeals.  Upon review
of the record and the parties' briefs, we affirm the judgment of the
post-conviction court.

http://www.tba.org/tba_files/TCCA/haynescar.wpd

STATE OF TENNESSEE v. ROBERT "BOBBY" POWELL

Court:TCCA

Attorneys:                          

L. L. Harrell, Jr., Trenton, Tennessee, for the appellant, Robert
"Bobby" Powell.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; Garry G. Brown, District Attorney General;
and Elaine G. Todd, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Robert "Bobby" Powell, pled guilty to statutory rape
and sexual battery, Class E felonies, in exchange for an effective
two-year sentence as a Range I, standard offender, with the manner of
service to be determined by the trial court.  Finding that a sentence
less serious than confinement would depreciate the seriousness of the
offenses, the trial court denied the defendant's request for probation
or other alternative sentencing and ordered that he serve his sentence
in the Department of Correction.  The court subsequently denied the
defendant's motion to reconsider, and the defendant appealed to this
court.  Based on our review, we affirm the judgments of the trial
court.

http://www.tba.org/tba_files/TCCA/powellrob.wpd

STATE OF TENNESSEE v. JANICE MICHELE WALKER

Court:TCCA

Attorneys:                          

Mark E. Stephens, District Public Defender; and Robert C. Edwards,
Assistant District Public Defender; and John Halstead, Assistant
District Public Defender, for the appellant, Janice Michele Walker.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; William C. Bright, Special Prosecutor, for the appellee, the
State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Janice Michele Walker, was charged in a four-count
presentment with theft over $10,000, forgery over $10,000, computer
fraud, and money laundering.  Defendant pled guilty as a Range I
standard offender to theft and forgery, both Class C felonies, and the
other charges were dismissed. Pursuant to the negotiated plea
agreement, Defendant was sentenced to four years for each offense, to
be served consecutively, and she was ordered to pay restitution.  The
trial court determined the manner of service of Defendant's sentence. 
Following a sentencing hearing, the trial court ordered Defendant to
serve her effective eight-year sentence in confinement.  Defendant
appeals the trial court's denial of full probation.  After a review of
the record, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/walkerjanicemichele.wpd

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