CORPORATE ETHICS UPDATE CLE
Presented by Nashville Attorney Gary Brown, this three-hour seminar
will explore all these topics in an interactive format, using sample
letters, discussion of the ethics rules and cases, and audience
discussion. Topics include, Ethics - What's That?, Sarbanes-Oxley
Section 307 and SEC Rule 205, and Sarbanes-oxley and the US Sentencing
Guidelines.

Dec. 2 - Knoxville
Dec. 7 - Nashville
Dec. 9 -Memphis


Today's Opinions: November 3, 2004
Volume 10 — Number 212
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.
00 New Opinion(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04 New Opinion(s) from the Tennessee Court of Appeals
01 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi .

Here's how you can obtain full-text version. • Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. • Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.
Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

DENISE BONE v. SATURN CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:                          

Clifford Wilson and Marcia McShane Watson, Nashville, Tennessee, for
the Appellant, Saturn Corporation.

Larry R. McElhaney, II, Nashville, Tennessee, for the Appellee, Denise
Bone.

Judge: DROWOTA

First Paragraph:

In this workers' compensation case, the employer, Saturn Corporation,
has appealed the trial court's award of benefits based on a weekly
compensation rate calculated as of the date the employee last worked
due to a gradually occurring injury.  The employer contends that an
employee's compensation rate should not be determined as of the date
the employee last worked due to a gradually occurring injury when the
employee has previously given the employer actual notice of the
injury, as occurred in this case.  The appeal was transferred to the
full Supreme Court prior to the Special Workers' Compensation Appeals
Panel hearing oral argument.  The sole question before this Court is
whether the last day worked rule applies in determining an employee's
weekly compensation rate when the employee, who has suffered a
gradually occurring injury, has given the employer actual notice of
the injury prior to missing time from work due to the injury.  After
carefully examining the record and the relevant authorities, we hold
that the last day worked rule does not apply when determining an
employee's compensation rate if the employee has given the employer
actual notice of a gradually occurring injury prior to missing time
from work on account of the injury.  Accordingly, the judgment of the
trial court is modified to reflect an award based on a weekly
compensation rate calculated as of the date the employee reported her
gradually occurring injury to the employer.

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

STATE OF TENNESSEE v. WILLIAM A. PAYNE, JR.

Court:TSC - Workers Comp Panel

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Kathy D. Aslinger, Assistant Attorney General;
James N. Ramsey, District Attorney General; and Janice G. Hicks,
Assistant District Attorney General, for the appellant, State of
Tennessee.

Nancy C. Meyer, Assistant Public Defender, Clinton, Tennessee, for the
appellee, William A. Payne, Jr.

Judge: DROWOTA

First Paragraph:

We granted the State's application for permission to appeal to
determine whether the Court of Criminal Appeals erred in concluding
that the entire videotape recording of the defendant's interview with
and statements to the police must be suppressed because the police
failed to provide the warnings prescribed by Miranda v. Arizona, 384
U.S. 436 (1966).  We have reviewed de novo the videotaped interview
and the suppression hearing testimony.  The police conducted the
interview in three phases, separated by two breaks.  Although the
defendant was not in custody during the first phase, we conclude that
the defendant was in custody and interrogated during the second and
third phases of the interview.  Accordingly, the second and third
phases of the videotaped interview and the statements the defendant
provided during those portions of the interview must be suppressed
because the police failed to provide Miranda warnings prior to
initiating the interrogation.  Accordingly, the judgment of the Court
of Criminal Appeals is affirmed insofar as it vacates the defendant's
convictions.  However, because the entire interview need not be
suppressed, we reverse the judgment of the Court of Criminal Appeals
insofar as it dismissed the charges against the defendant.  The case
is remanded to the trial court for further proceedings consistent with
this decision.

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

IN RE: AMENDMENT TO RULE 9, RULES OF THE SUPREME COURT OF TENNESSEE

Court:TSC - Rules

First Paragraph:

On February 19, 2004, the Court released its opinion in John Doe v.
Jane Doe, 127 S.W.3d 728 (Tenn. 2004), holding that the
confidentiality requirement set out in section 25 of Rule 9, Tenn. S.
Ct. R., violated the free speech protections of Article I, section 19
of the Tennessee Constitution and the First Amendment to the United
States Constitution. The Court simultaneously entered an order
publishing for public comment a proposed amendment to Rule 9, section
25, to address the constitutional concerns discussed in the opinion.
The order provided that the proposed amendment would serve as an
interim rule pending the final action on the amendment.

http://www.tba.org/tba_files/TSC_Rules/rule9amendment_001.pdf

94TH AERO SQUADRON OF MEMPHIS, INC. v. MEMPHIS-SHELBY COUNTY AIRPORT
AUTHORITY v. SPECIALTY RESTAURANT CORPORATION

Court:TCA

Attorneys:                          

Larry E. Parrish, Memphis, Tennessee, for the appellants, 94th Aero
Squadron of Memphis, Inc. and Specialty Restaurant Corporation.

R. Grattan Brown, Jr., William L. Hendricks, Jr., and Jeremy G.
Alpert, Memphis, Tennessee, for the appellee, Memphis-Shelby County
Airport Authority.

Judge: FARMER

First Paragraph:

This appeal involves the termination of a commercial real estate lease
agreement.  Among a multitude of other claims, Plaintiff, Lessee,
contends that Defendant, Lessor, breached the lease  by failing to
provide lessee with notice of default, sufficient to satisfy the terms
of the lease.  Additionally, Lessee argues that Lessor violated
section 29-18-101, et seq. of the Tennessee Code Annotated (Forcible
Entry and Detainer) by re-entering the leased premises without first
obtaining a writ of possession.  Lessee appeals from the trial court's
final judgment in favor of Lessor.  We affirm as modified.

http://www.tba.org/tba_files/TCA/94thaero.wpd

STEPHANIE DUBOIS v. RADWAN HAYKAL, M.D., ET AL.

Court:TCA

Attorneys:                          

Mimi Phillips, R. H. "Chip" Chockley, Memphis, TN, for Appellant

Michael E. Keeney, John Dotson, Memphis, TN, for Appellee Radwan
Haykal, M.D.

Karen S. Koplon, Virginia M. Patterson, Memphis, TN, for Appellee
Margaret H. Sauter

R. Douglas Hanson, Memphis, TN, for Appellee Walgreen Co.

Judge: HIGHERS

First Paragraph:

This appeal arises out of a grant of summary judgment in favor of
Appellees in a medical malpractice action.  The trial court held a
preliminary hearing, without a jury, to determine if Appellant could
establish the essential elements of such an action, particularly the
element of causation.  After Appellant presented her experts'
testimony regarding causation for Appellant's medical malpractice
action, the trial court granted Appellees' motions for summary
judgment.  Appellant filed an appeal to this Court, and, for the
following reasons, we reverse and remand for further proceedings
consistent with this opinion.

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

BILL GIBSON, ET AL. v. JIMMY L. GIBSON

Court:TCA

Attorneys:                          

T. D. Forrester, Covington, For Appellants, Bill Gibson, Clyde Gibson,
Vivian Gibson Summar, Pam Gibson Clark, and Robert J. Gibson, Jr.

J. Thomas Caldwell, Ripley, For Appellee, Jimmy L. Gibson

Judge: CRAWFORD

First Paragraph:

Appellants sought the rescission of a quitclaim deed from a mother to
her son upon the grounds of undue influence, fraud, and lack of
independent advice.  The trial court found that the quitclaim was not
invalid on any of these grounds.  We affirm.

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

R. L. LOVE v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
EMPLOYEES LOCAL 1733, AND WILLIE JOE ALEXANDER

Court:TCA

Attorneys:                          

Kenneth P. Jones, Memphis, Tennessee, for the appellant, R. L. Love.

Murray B. Wells, Memphis, Tennessee, for the appellee, American
Federation of State, County and Municipal Employees Local 1733.

Willie Joe Alexander, appellee, pro se.

Judge: KIRBY

First Paragraph:

This is a claim against a union for negligence.  The plaintiff was a
correctional officer at a county correctional facility and a member of
the defendant union. The employee was terminated from his job after he
was arrested for possession of a controlled substance.  The employee
sought the union's assistance in appealing his termination through the
county grievance process.  After his grievance was preliminarily
denied, the union had fifteen days in which to appeal the denial by
requesting arbitration of the employee's case.  The employee urged the
union to file a request for arbitration, and the defendant union
officer agreed to do so.  However, the defendant union officer failed
to submit the request for arbitration by the deadline, and
consequently the request was denied as untimely.  The employee then
sued the union and the union officer, alleging that the union
officer's conduct was negligent and that it constituted a breach of
contract.  After a bench trial, the trial court rejected the
employee's breach of contract claim.  It concluded that the
defendants' failure to request arbitration in a timely manner was
negligent, but that the negligence did not cause the employee's
damages.  The employee now appeals.  We affirm the dismissal of the
breach of contract claim, but reverse the dismissal of the negligence
claim, finding that the evidence preponderates against the trial
court's conclusion that the employee failed to prove causation of his
damages.

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

STATE OF TENNESSEE v. CLINTON WADE KETRON

Court:TCCA

Attorneys:                          

Joe M. Felknor, Knoxville, Tennessee, for the appellant, Clinton Wade
Ketron.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Paula Ham, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Clinton Wade Ketron, pled guilty to one count of
operating a motor vehicle while adjudged to be a Habitual Motor
Vehicle Offender (HMVO), a Class E felony, and one count of criminal
impersonation, a Class B misdemeanor.  Pursuant to a plea agreement
the Defendant was sentenced to concurrent terms of one year for his
felony HMVO conviction and six months for his misdemeanor criminal
impersonation conviction.  The trial court denied alternative
sentencing and ordered the Defendant to serve his sentences in
confinement.  The Defendant raises only one issue on appeal: The trial
court erred in sentencing the Defendant to serve his one year felony
sentence with the Tennessee Department of Corrections and in
sentencing him to six months in the county jail for his misdemeanor
conviction instead of placing him on enhanced probation or imposing
some other form of alternative sentence.  We affirm the judgments of
the trial court.

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

Constitutionality of Proposed Adequate Facilities Tax

Date: November 1, 2004

Opinion Number: 04-158

http://www.tba.org/tba_files/AG/2004/op158.pdf

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