Opinion Flash

September 27, 2004
Volume 10 — Number 186

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):
01 New Opinion(s) from the Tennessee Supreme Court
04 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04 New Opinion(s) from the Tennessee Court of Appeals
05 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


SYNTHIA M. HOPKINS v. VICTOR L. HOPKINS
WITH DISSENTING OPINION

Court:TSC

Attorneys:                          

Sharon T. Massey and Gregory D. Smith, Clarksville, Tennessee, for the
appellant-defendant, Victor L. Hopkins.

Mark A. Rassas and Julia P. North, Clarksville, Tennessee, for the
appellee-plaintiff, Synthia M. Hopkins.

Judge: HOLDER

First Paragraph:

The issue in this case is whether child support may be awarded when
neither party has been designated the primary residential parent.  The
Court of Appeals modified the trial court's judgment to award equal
parenting time between the parties.  Neither party contests this
modification.  We hold that the Court of Appeals erred, however, in
awarding child support to one party when neither party was designated
the primary residential parent.  We remand to the trial court for the
designation of a primary residential parent, for the consideration of
the amount of child support to be paid, and for entry of a parenting
plan.

http://www.tba.org/tba_files/TSC/hopkinssm_opn.wpd

DISSENTING OPINION
http://www.tba.org/tba_files/TSC/hopkinssm_dis.wpd

JEFFREY K. BOYCE V. DAB PLUMBING, INC. and OAK RIVER INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:                          

Clancy F. Covert and Michael W. Jones, Wimberly Lawson Seale Wright &
Daves, Nashville, TN, for the appellants, DAB Plumbing, Inc. and Oak
River Insurance Co.

Joseph L. Mercer, Nashville, TN, for the appellee, Jeffrey K. Boyce.

Judge: TURNBULL

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann.
S 50-6-225(e)(3) for hearing and reporting of findings of fact and
conclusions of law.  The employer contends that the trial court
erroneously: (1) awarded payment of unauthorized medical expenses, (2)
refused to apply the statutory cap allowed by Tenn. Code Ann. S
50-6-241(a)(1) to the permanent partial disability award, and (3)
granted excessive permanent partial disability benefits in light of
the employee's vocational factors.  The issues turn on witness
credibility and findings of fact.  The Panel defers to the trial court
and finds that the trial court opinion should be affirmed in all
respects.

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

RHONDA CARY v. THE LOCAL GOVERNMENT WORKER'S COMPENSATION FUND, ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Michael L. Mansfield, Jackson, Tennessee for appellants, The Local
Government Workers' Compensation Fund and The Obion County Board of
Education.

Bruce Moss, Union City, Tennessee for appellee, Rhonda Cary.

Judge: WALLACE

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law.  The issues presented to the trial court were:  (1) whether the
employee gave proper notice of her injury to employer pursuant to
Tennessee Code Annotated Section 50-6-201 and 202; (2) whether the
employee sustained an injury by accident arising out of her employment
with defendant on May 1, 2000; (3) whether the employee retained any
permanent anatomical impairment as a result of the alleged work
injury.  As discussed below, we affirm the trial court.

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

MICHAEL RAY HAILEY v. E. W. JAMES & SONS, ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Paul G. Summers, Attorney General and Reporter, and Dianne Stamey
Dycus, Deputy Attorney General, Nashville, Tennessee, for the
appellant, Sue Ann Head, Director, Workers' Compensation Division,
Tennessee Department of Labor and Workforce Development, Second Injury
Fund.

Alex C. Elder, Memphis, Tennessee, for the appellees, E. W. James &
Sons and Royal and SunAlliance Insurance Company.

Jeffrey A. Garrety, Jackson, Tennessee, for the appellee, Michael Ray
Hailey.

Judge: LOSER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law.  In this appeal, the Second Injury Fund insists the trial court
erred in its apportionment of permanent total disability benefits 35
percent to the employer and 65 percent to the Second Injury Fund.  As
discussed below, the panel has concluded the judgment of the trial
court should be modified by apportioning 100 percent of the disability
benefits to the employer and none to the Second Injury Fund.

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

MELLY L. LEE v.  SATURN CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:                          

Thomas H. Peebles, IV and Stephen Zralek, Columbia, Tennessee, for the
appellant, Saturn Corporation.

Larry R. McElhaney, II, Nashville, Tennessee, for the appellee, Melly
L. Lee.

Judge: STOTTS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with the Tennessee Code Annotated section 50-6- 225(2)(3) for hearing
and reporting to the Supreme Court of findings of fact and conclusions
of law.  In this case the trial court found that the employee gave
actual notice of her neck injury and that the injury was work related.
 The employee's award was based on a permanent partial impairment
rating of 18%.  The employer raises the following issues: 1) Whether
the trial court erred in concluding that the union representative had
apparent authority to receive notice of employee's work-related
injury; 2) Whether the trial court erred in concluding that the
employee gave the employer actual notice of her injury; and 3) Whether
the trial court erred in concluding that employee's injury was work
related.  We find no error and affirm the judgment of the trial court.

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

CONSOLIDATED PIPE & SUPPLY COMPANY, INC. v. DEER PATH VACATIONS, L.P.,
ET AL.

Court:TCA

Attorneys:                          

John A. Walker, Jr., Knoxville, Tennessee, for the appellant,
Consolidated Pipe & Supply Company, Inc.

John C. Speer, Timothy F. Zitzman, and Erica Taylor Greene, Memphis,
Tennessee, for the appellees, First Tennessee Bank National
Association and J. Michael Winchester, Trustee.

Judge: SUSANO

First Paragraph:

Consolidated Pipe & Supply Company, Inc. ("the Lienor") contracted
with Stetson & Associates of Tennessee, Inc. ("the Debtor") to furnish
pipe in connection with the Debtor's construction activities on a
subdivision being developed by Deer Path Vacations, Inc. ("the
Owner").  The Debtor failed to pay for the pipe furnished by the
Lienor.  Subsequently, the Debtor and the Owner filed separate
petitions in bankruptcy court seeking relief under the Bankruptcy Code
("the Code").  The Lienor served notice of its lien claim on the
Owner.  Thereafter, the Lienor filed suit on its lien claim against
the Owner and First Tennessee Bank National Association and J. Michael
Winchester, Trustee (collectively "the Bank").  The Bank moved to
dismiss the Lienor's suit on the basis that the suit was not timely
filed.  The trial court dismissed the Lienor's complaint, finding that
the Lienor "fail[ed] to timely enforce [its] lien."  The Lienor
appeals.  We affirm.

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

MARIE F. OGLESBY ELBELL v. CHARLES LUTHER ELBELL

Court:TCA

Attorneys:                          

Roland E. Cowden, Maryville, Tennessee, for the appellant, Charles
Luther Elbell.

John M. Norris, Strawberry Plains, Tennessee, for the appellee, Marie
F. Oglesby Elbell.

Judge: SUSANO

First Paragraph:

This is a divorce case.  Following a bench trial, the court below
granted a divorce to Marie F. Oglesby Elbell ("Wife") and Charles
Luther Elbell ("Husband"), and divided their marital property. 
Husband appeals the trial court's division of marital property, in
particular the allocation of several rental properties which served,
during the parties' marriage, as their primary source of income.  We
affirm.

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

RAYMOND RUTTER v. H. GREELEY WELLS, JR.

Court:TCA

Attorneys:                          

Raymond Rutter, appellant, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Michael A. Meyer,
Assistant Attorney General, Nashville, Tennessee, for the appellee, H.
Greeley Wells, Jr.

Judge: SUSANO

First Paragraph:

This case was brought under the Tennessee Public Records Act, Tenn.
Code Ann. S 10-7-501, et seq. (1999 and Supp. 2003) ("the Act").  The
trial court granted the respondent's motion to dismiss because it
found that the petitioner, a prisoner in state custody, had failed to
comply with the court's earlier order requiring the petitioner "to
identify the exact documents to be copied."  The petitioner appeals. 
We vacate the trial court's judgment and remand for further
proceedings.

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

THOMAS SALLEE v. TYLER BARRETT

Court:TCA

Attorneys:                          

Phillip L. Davidson of Nashville for Appellant, Thomas Sallee

David Haines of Clarksville for Appellee, Tyler Barrett

Judge: CRAWFORD

First Paragraph:

Plaintiff/Appellant sued Defendant/Appellee, a police officer with the
City of Clarksville, for negligent infliction of emotional distress,
stemming from Defendant/Appellee's negligent discharge of his firearm.
 Pursuant to the provisions of T.C.A. S29-20-205(2), the trial court
granted the Defendant/Appellee's Tenn. R. Civ. P. 12 Motion to
Dismiss. Plaintiff/Appellant appeals. We reverse and remand.

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

STATE OF TENNESSEE v. WAYNE BOSTIC

Court:TCCA

Attorneys:                          

Clifford K. McGown, Jr., Waverly, Tennessee, (on appeal) and Gary F.
Antrican, District Public Defender; and Julie K. Pillow, Assistant
District Public Defender, (at trial) for the appellant, Wayne Bostic.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Elizabeth T. Rice, District
Attorney General; and Tracey Anne Brewer, Assistant District Attorney
General, for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Following a jury trial, Defendant, Wayne Bostic, was convicted of one
count of delivery of cocaine, a Schedule II controlled substance.  The
trial court sentenced Defendant to five years confinement as a Range
I, standard offender.  Defendant does not appeal his sentence. 
Defendant does, however, appeal the sufficiency of the convicting
evidence.  Following a review of the record, we affirm the trial
court's judgment.

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

WAYNE DAVIDSON v. RICKY BELL, WARDEN

Court:TCCA

Attorneys:                          

Wayne Davidson, Nashville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; and Victor S. (Torry) Johnson,
III, District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Wayne Davidson, was convicted in the Meigs County
Criminal Court of second degree burglary.  Upon being found by a jury
to be an habitual criminal, the petitioner was sentenced to life
imprisonment.  Subsequently, the petitioner filed in the Davidson
County Circuit Court a pro se petition for writ of habeas corpus,
alleging that the statutes under which he received a life sentence
were unconstitutional.  The trial court summarily dismissed the
petition, and the petitioner timely appealed.  Upon review of the
record and the parties' briefs, we affirm the judgment of the trial
court.

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

STATE OF TENNESSEE v. MARK DANIEL GODSEY

Court:TCCA

Attorneys:                          

Jerry H. Summers, Chattanooga, Tennessee, for the appellant, Mark
Daniel Godsey.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Kenneth O. Fritz, Assistant District Attorney General,
for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant appeals the trial court's dismissal of his petition for writ
of habeas corpus in Case No. 242704 in which Defendant alleged that
the municipal ordinance supporting his conviction for reckless driving
was unlawfully enacted.  Defendant also appeals the trial court's
order declaring him to be an habitual motor vehicle offender in Case
No. 239641.  After a thorough review of the record, we affirm the
trial court's judgments in Case Nos. 242704 and 239641.

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

TONY MABRY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Scott Hall, Memphis, Tennessee, for the appellant, Tony Mabry.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Gail Vermaas, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Tony Mabry, appeals the trial court's dismissal of his
petition for post-conviction relief.  Petitioner argues that his trial
counsel rendered ineffective assistance of counsel because she (1)
failed to request a pre-trial voice line-up; (2) failed to
cross-examine the victim about his prior statements to the police; and
(3) failed to subpoena the police officer who took the victim's
initial statement to testify at trial.  After a thorough review of the
record, the judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. BILLY WAYNE QUILLEN

Court:TCCA

Attorneys:                          

Greg W. Eichelman, District Public Defender, and Michael A. Walcher,
Assistant Public Defender, for the appellant, Billy Wayne Quillen.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney
General; and Cecil C. Mills, Jr. and Eric D. Christiansen, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN
 
First Paragraph:

The defendant, Billy Wayne Quillen, pled guilty to two counts of
attempt to obtain a controlled substance by fraud and was placed on
judicial diversion for two years.  His diversion was subsequently
revoked, and the trial court reinstated his original two-year sentence
to be served at 100%.  On appeal, the defendant argues that the trial
court erred in ordering him to serve his sentence at 100% without
release eligibility, and the State agrees.  Based upon our review, we
modify the defendant's sentence to reflect release eligibility after
service of 30% of the two-year sentence.

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

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