Opinion Flash

October 11, 2004
Volume 10 — Number 196

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
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
11 New Opinion(s) from the Tennessee Court of Criminal Appeals
02 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


DANNY CAPPS v. ANVIL INTERNATIONAL, INC.

Court:TSC - Workers Comp Panel

Attorneys:                          

K. Don Bishop, Henderson, Tennessee, for the appellant, Danny Capps.

Zachary C. Luttrell, and Jeffery G. Foster, Jackson, Tennessee, for
the appellee, Anvil International, Inc.

Judge: WALKER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel 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 trial
court found that employee suffered a permanent partial disability of
15% to the right arm.  We affirm.

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

BERNARD FALCICCHIO v. GIBSON MECHANICAL CONTRACTORS, INC., ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Michael P. Pfrommer, Memphis, Tennessee, for the appellant, Bernard
Falcicchio.

Stephen P. Miller and Evan Nahmias, Memphis, Tennessee, for the
appellees, Gibson Mechanical Contractors, Inc., and Amerisure
Insurance Company.

William C. Sessions, Memphis, Tennessee, for the appellees, Day &
Zimmermann, and Zurich American Insurance Company.

Judge: CHILDERS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel 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, Employee argues that the trial court erred in granting the
motion to dismiss filed by Gibson Mechanical Contractors, Inc. and
Amerisure Insurance Company.  We conclude that the trial court erred
granting the motion to dismiss and reverse the judgment of the trial
court.

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

SHIRLEY MOORE v. BEST METAL CABINETS

Court:TSC - Workers Comp Panel

Attorneys:                          

Jeffery G. Foster and Zachary C. Luttrell, Jackson, Tennessee, for the
appellant, Best Metal Cabinets.

L.L. Harrell, Jr., Trenton, Tennessee, for the appellee, Shirley
Moore.

Judge: CHILDERS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel 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 Employer argues that the trial court erred in awarding
permanent disability benefits to the Employee, in failing to apply the
2.5 cap pursuant to Tennessee Code Annotated section 50-6-241(a), and
in failing to make specific findings of fact pursuant to Tennessee
Code Annotated section 50-6-241(c).  We conclude that the evidence
preponderates in favor of the trial court's award of permanent
disability benefit; that the evidence fails to preponderate against
the trial court's award of benefits that exceed the 2.5 cap; and that
the evidence preponderates against the trial court's award of six
times the anatomic impairment rating.  We, therefore, affirm the trial
court's judgment, as modified.

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

DONNA PAYTON v. McKENZIE VALVE AND MACHINING COMPANY, ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

S. Newton Anderson and Mildred L. Sabbatini, Memphis, Tennessee, for
the appellants, McKenzie Valve and Machining Company and Travelers
Insurance Company.

Robert T. Keeton, Jr., Huntingdon, Tennessee, for the appellee, Donna
Payton.

Judge: CHILDERS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel 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, Employer argues: (i) that the trial court erred in allowing
the testimony of one of Employee's witnesses; (ii) that the evidence
preponderates against the trial court's finding that Employee's injury
was caused by her employment; and (iii) that the evidence
preponderates against the trial court's award of 37.5% permanent
partial disability to each arm.  We conclude that the evidence fails
to preponderate against the trial court's decision to allow the
testimony of Employee's witness, the trial court's finding that
Employee's injury was caused by her employment, and the trial court's
award of 37.5% permanent partial disability to each arm.  We,
therefore, affirm the judgment of the trial court.

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

WILLIAM ANTHONY BACIGALUPO v. MARY DARLENE RAINES BLACKNALL BACIGALUPO

Court:TCA

Attorneys:                          

James A. Hamilton, III, Dyersburg, TN, for Appellant

Thomas H. Strawn, Dyersburg, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case arises from the divorce proceedings of Husband and Wife. 
Husband filed for a divorce from Wife, citing inappropriate marital
conduct and irreconcilable differences as grounds for a divorce.  Wife
filed her answer and counterclaim, stating she was entitled to a
divorce on the basis of inappropriate marital conduct and adultery. 
The trial court granted Wife a divorce, established Wife as the
primary residential parent of Child, divided the parties' marital
property, set alimony payments Husband must pay to Wife, imposed a
lien on Husband's property to secure the property division and support
payments, and awarded Wife a portion of her attorney's fees incurred
as a result of the proceedings.  For the following reasons, we affirm
in part, reverse in part, and remand for further proceedings
consistent with this opinion.

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

STEVEN R. OUZTS v. MICHAEL L. WOMACK, VICTORIA A. RAUB, FRANK DONATO,
REMAX-ELITE, STEVEN BOYSEN, CRYE-LEIKE, INC., AND MCANALLY INSPECTION
SERVICE, INC.

Court:TCA

Attorneys:                          

Stephen H. Biller, Memphis, for the appellant Steven R. Ouzts.

Richard Glassman and Tameka Turner-Perry, Memphis, for the appellees
Michael L. Womack and Victoria A. Raub.

Judge: KIRBY

First Paragraph:

This case involves alleged fraud in the sale of real estate.  The
sellers completed a residential disclosure statement indicating that
the subject property had no flooding problems.  The sellers then
bargained to include language in the deed disavowing any previous
representations concerning the property's condition.  The buyer
accepted these terms.  After the buyer took possession, the property
flooded.  The buyer filed suit against the sellers, alleging
fraudulent concealment and misrepresentation.  The sellers filed a
motion for summary judgment, which was granted.  We affirm, holding
that the buyers are bound by the unambiguous terms of the contract for
sale and the deed.

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

MONTE PANITZ, ET AL. v. F. PERLMAN & COMPANY, INC., ET AL.

Court:TCA

Attorneys:                          

John Andre Chiapella of Memphis For Appellants, Monte Panitz and Barry
Panitz

Leo Bearman, Jr. and Maurice Wexler of Memphis For Appellees, F.
Perlman & Company, Inc., Alan Perlman, Neil Cohen, Michael Wexler,
Southern Steel Supply Company, Inc. and American Metal Sales, Inc.

Judge: CRAWFORD

First Paragraph:

Shareholders seek to inspect certain records of corporation of which
they are shareholders, as well as records of two other corporations
("the subsidiaries"): a second corporation which is the wholly-owned
subsidiary of the corporation in which Plaintiffs hold shares, and
another that is the wholly owned-subsidiary of the second corporation.
Defendants maintain that plaintiffs do not have any right to inspect
the records of corporations in which they are not shareholders, but
agreed to allow inspection of limited records of two subsidiaries as a
courtesy, contingent upon plaintiffs signing a confidentiality
agreement. Plaintiffs maintain that they have an unqualified right to
inspect records of all three corporations under T.C.A. 48-26-102. The
trial court found that the confidentiality agreement was reasonable
and entered an order requiring defendants to produce certain records,
dating back to 1991, for inspection and copying. It further held that,
in light of defendants' agreement to allow limited inspection of
records of subsidiaries, it need not rule on issue of whether
plaintiffs were entitled to inspect records of subsidiaries. We affirm
as modified herein.

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

VICKERY TRANSPORTATION, INC. and GRAMMER INDUSTRIES, INC. v. HEPACO,
INC.

Court:TCA

Attorneys:                          

John Andre Chiapella of Memphis For Appellants, Monte Panitz and Barry
Panitz

Leo Bearman, Jr. and Maurice Wexler of Memphis For Appellees, F.
Perlman & Company, Inc., Alan Perlman, Neil Cohen, Michael Wexler,
Southern Steel Supply Company, Inc. and American Metal Sales, Inc.

Judge: HIGHERS

First Paragraph:

This case arises out of an action seeking declaratory relief
concerning the validity of an arbitration clause in a contract between
the parties.  Appellee filed a complaint in the Chancery Court at
Haywood County for a determination of whether a contract, and,
therefore, the arbitration clause in the contract, were invalid
because the contract was one of adhesion or executed under duress. 
The trial court, upon Appellees' motion to stay arbitration, ordered
that the arbitration proceedings should be stayed because there was no
agreement to arbitrate.  Appellant filed its appeal to this Court,
and, for the following reasons, we reverse and remand this case for
further proceedings consistent with this opinion.

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

STATE OF TENNESSEE v. CHARLES BENSON

Court:TCCA

Attorneys:                          

Merrilyn Feirman, Nashville, Tennessee (on appeal), Donna Leigh
Hargrove, District Public Defender, and Andrew Jackson Dearing, III,
Assistant Public Defender (at trial), for the appellant, Charles
Benson.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; William Michael McCown,
District Attorney General; and Michael David Randles and Ann L. Filer,
Assistant District Atttorneys General, for the appellee, State of
Tennessee.

Judge: TIPTON

First Paragraph:

A Bedford County Criminal Court jury convicted the defendant, Charles
Benson, of possession of a schedule II controlled substance with
intent to sell and of possession of a schedule II controlled substance
with intent to deliver, both Class B felonies.  The trial court merged
the two convictions and sentenced the defendant on the possession with
intent to sell count as a Range II, multiple offender to twenty years
in the Tennessee Department of Correction.  The defendant appeals,
claiming that (1) the evidence is insufficient to support his
conviction; (2) the trial court erred by denying his motion to
suppress evidence; and (3) his sentence is excessive.  We conclude
that the evidence is sufficient and that the trial court properly
denied the defendant's motion to suppress.  Although we hold that the
trial court improperly relied on certain enhancement factors in light
of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), we
conclude that the record supports a sentence of twenty years.  We
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. LALON R. DAVENPORT

Court:TCCA

Attorneys:                          

Gerald L. Melton and Russell ("Rusty") N. Perkins, Murfreesboro,
Tennessee, for the appellant, Lalon R. Davenport.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; John W. Price, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Lalon R. Davenport, pled guilty to one count of
violating the Motor Vehicle Habitual Offender Act.  Pursuant to
Tennessee Rule of Criminal Procedure 37, the Defendant reserved as a
certified question of law the issue of whether the three-year time
period articulated in the Habitual Offender Act bars prosecution for
violating the Act after the time period has expired.  We conclude that
such prosecution is not barred by the Act, and the judgment of the
trial court is therefore affirmed.

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

STATE OF TENNESSEE v. WILLIAM MARTIN FREY, JR.

Court:TCCA

Attorneys:                          

Leann Smith, Nashville, Tennessee, for the Appellant, William Martin
Frey, Jr.

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

Judge: WELLES

First Paragraph:

Following a jury trial, the Defendant was convicted of five burglary,
three theft and five drug offenses.  The trial court sentenced the
Defendant, William M. Frey, Jr., to 50 years as a persistent offender.
 The Defendant argues six issues on appeal: (1) there was insufficient
evidence to find the Defendant guilty beyond a reasonable doubt, (2)
the trial court erred by not severing the Defendant's charges at
trial, (3) the trial court erred by admitting prior statements made by
the Defendant pertaining to his criminal record, (4) the trial court
erred in admitting at trial the Defendant's statements concerning his
drug use, (5) the trial court erred by failing to adequately consider
the Defendant's diminished mental capacity as a mitigating factor
during sentencing, and (6) the trial court erred in ordering the
Defendant's sentences to be served consecutively.  We affirm the
judgments of the trial court.

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

DAVID E. GARRISON v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

David M. Hopkins, for the appellant.

Paul G. Summers, Attorney General & Reporter; Michelle Chapman
McIntire, Assistant Attorney General, for the appellee, State of 
Tennessee.

Judge: WELLES

First Paragraph:

The Petitioner, David E. Garrison, appeals the trial court's dismissal
of his petition for post conviction relief.  The State has filed a
motion requesting that this Court affirm the trial court's denial of
relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. 
The Petitioner filed his petition outside the statute of limitations. 
Accordingly, the State's motion is granted, and the judgment of the
trial court is affirmed.

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

MATTHEW M. JACKSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Matthew M. Jackson, Bowling Green, Kentucky, Pro Se.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; and Lawrence Ray Whitley, District
Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Matthew M. Jackson, appeals the order of the trial
court denying the Defendant's "Motion to Reconsider Order Denying
Motion to Vacate and/or Relief from Judgment."  The State has filed a
motion requesting that this court affirm the trial court's denial of
relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. 
The State's motion is granted and the judgment of the trial court is
affirmed.

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

STATE OF TENNESSEE v. KEVIN MAGNESS
CORRECTED OPINION WITH MEMO

Court:TCCA

Attorneys:                          

Steven R. Roller, McMinnville, Tennessee, and Donald Capparella,
Nashville, Tennessee, for the appellant, Kevin Magness.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Clement Dale Potter, District
Attorney General; and Larry G. Bryant, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Warren County Circuit Court jury convicted the defendant, Kevin
Magness, of manufacturing more than one hundred grams of
methamphetamine, a Class B felony, and the trial court sentenced him
as a Range I, standard offender to eight years in confinement.  The
defendant appeals, claiming that (1) the evidence is insufficient to
support his conviction, and (2) the trial court erred by allowing into
evidence the manner by which the state calculated the weight of the
substance containing methamphetamine.  We hold that the evidence is
sufficient to show felonious manufacturing but that an incorrect
standard was used to calculate the weight of the controlled substance.
 We modify the defendant's conviction to reflect a conviction for a
Class C felony, and we remand the case to the trial court for
resentencing.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/magnesskevin.wpd

MEMO
http://www.tba.org/tba_files/TCCA/magnesskevin_mem.wpd

KEVIN L. MARSHALL v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Kevin L. Marshall, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; and Mike Bottoms, District Attorney
General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Kevin L. Marshall, appeals from the trial court's
denial of his petition for habeas corpus relief.  The State has filed
a motion requesting that this Court affirm the trial court's denial of
relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. 
The petition fails to establish a cognizable claim for habeas corpus
relief.  Accordingly, the State's motion is granted and the judgment
of the trial court is affirmed.

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

JAMES MARVIN MARTIN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Liddell Kirk, Knoxville, Tennessee, for the appellant, James Marvin
Martin.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
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 petitioner, James Marvin Martin, appeals the denial of his
petition for post-conviction relief, arguing that the post-conviction
court erred in finding that his claim was beyond the statute of
limitations.  After careful review, we affirm the denial of the
petition.

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

STATE OF TENNESSEE v. BOBBY NORTHCUTT

Court:TCCA

Attorneys:                          

Michael D. Galligan (on appeal), Robert W. Newman (at sentencing
hearing), John P. Partin (at plea hearing), McMinnville, Tennessee,
for the appellant, Bobby Northcutt.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; Dale Potter, District Attorney General,
for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Bobby Northcutt, pled guilty to two counts of rape of a
child, and the trial court sentenced him to twenty-five years in
prison on each count, ordering the sentences to run consecutively. 
The Defendant appeals his sentence, contending that the trial court:
(1) improperly failed to apply one mitigating factor; (2) improperly
applied two enhancement factors; and (3) erred when it ordered that
his sentences run consecutively.  Finding that reversible error
exists, we reverse the judgments of the trial court and remand the
case for resentencing.

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

JOHNNY PROFFITT v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

Johnny Proffitt, pro se.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General, for the appellee, State of  Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Johnny Proffitt, appeals the trial court's dismissal
of his petition for post conviction relief.  The State has filed a
motion requesting that this Court affirm the trial court's denial of
relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. 
The Petitioner cannot collaterally attack his probation revocation
order. Moreover, the petitioner filed his petition outside the statute
of limitations.  Accordingly, the State's motion is granted, and the
judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. DAVID SCARBROUGH

Court:TCCA

Attorneys:                          

Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, David
Scarbrough.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and William H. Crabtree, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, David Scarbrough, was convicted of two counts of first
degree felony murder, two counts of theft, and aggravated burglary and
sentenced to a term of life imprisonment with the possibility of
parole for each of the murders, six years for the aggravated burglary,
and eleven months, twenty-nine days for each of the thefts, with the
sentences to be served consecutively.  On direct appeal, this court
affirmed the aggravated burglary and theft convictions but reversed
the felony murder convictions because the trial court had not
instructed the jury as to facilitation of felony murder.  See State v.
David Leon Scarbrough, No. E1998-00931-CCA-R3-CD, 2001 WL 775603
(Tenn. Crim. App. July 11, 2001), perm. to appeal denied (Tenn. Jan.
7, 2002).  On remand and before the start of the second trial, the
trial court, applying the doctrine of the law of the case, granted the
State's motion to prevent the defendant from contesting his conviction
for aggravated burglary; and the defendant was granted permission to
file this interlocutory appeal pursuant to Rule 9, Tenn. R. App. P.,
asserting that the trial court's order impinged on his rights to a
jury trial and to present evidence in his defense.  Following our
review, we reverse the order of the trial court.

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

Application of Mineral Severance Tax to "Tennessee Mountain Stone"

Date: October 7, 2004

Opinion Number: 04-152

http://www.tba.org/tba_files/AG/2004/op152.pdf

HIPAA

Date: October 7, 2004

Opinion Number: 04-153

http://www.tba.org/tba_files/AG/2004/op153.pdf

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