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Today's Opinions: January 20, 2005
Volume 11 — Number 012
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.
02 New Opinion(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Court of Appeals
00 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

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. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • 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


AMY BUTTERWORTH, ET AL. v. JOHN BUTTERWORTH, ET AL.

Court:TSC

Attorneys:                          

Allan B. Thorp, Memphis, Tennessee, for the Appellants, John Butterworth
and Chic Transportation, LLC.

Marvin A. Bienvenu, Memphis, Tennessee, for the Appellee, Amy
Butterworth.

Judge: HOLDER

First Paragraph:

We granted this appeal to determine whether the doctrine of parental
immunity bars recovery when a son is injured at his father's place of
employment.  We conclude that the Court of Appeals erred in creating a
bright-line rule prohibiting the application of the doctrine of parental
immunity when the injury resulted from employment-related activities. 
Viewing the evidence in the light most favorable to the non-moving
party, we hold that the motion for summary judgment was improperly
granted by the trial court.  Thus, we affirm the judgment of the Court
of Appeals in this respect and remand this case to the trial court for
further proceedings consistent with this opinion.

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

STATE OF TENNESSEE v. DETRICK COLE
WITH APPENDIX AND DISSENTING OPINION

Court:TSC

Attorneys:                          

Robert Wilson Jones, District Public Defender; Tony N. Brayton and
Garland Erguden, Assistant Public Defenders, for the appellant, Detrick
Cole.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Angele M. Gregory, Assistant Attorney General;
William L. Gibbons, District Attorney General; Stephen P. Jones and
Jennifer Nichols, Assistant District Attorneys General, for the
appellee, State of Tennessee.

Judge: DROWOTA

First Paragraph:

The defendant, Detrick Cole, was convicted of first degree premeditated
murder.  The jury imposed a sentence of death upon finding that the
prosecution had proven beyond a reasonable doubt that the defendant had
been previously convicted of "one (1) or more felonies, other than the
present charge, whose statutory elements involve the use of violence to
the person," and that this aggravating circumstance outweighed
mitigating circumstances beyond a reasonable doubt.  The defendant
appealed, challenging  his conviction and sentence.  The Court of
Criminal Appeals affirmed.  The case was docketed in this Court.  Tenn.
Code Ann. S 39-13-206(a)(1).  After considering the briefs and the
record, this Court entered an order requesting that the parties address
at oral argument the following four issues:  (1) whether the evidence is
sufficient to support the conviction; (2) whether the defendant was
deprived of his constitutional right to a fair trial when the trial
court required the defendant to submit to fingerprinting in the presence
of the jury; (3) whether, under Apprendi v. New Jersey, 530 U.S. 466
(2000) and Ring v. Arizona, 536 U.S. 584 (2002), the jury rather than
the judge must determine whether the statutory elements of prior
convictions used to support the (i)(2) aggravating circumstance involve
the use of violence to the person; and (4) whether the factors for
mandatory review in Tennessee Code Annotated section 39-13-206 (c)(1)
require reversal of the sentence of death.  After carefully and
thoroughly considering the issues in light of the record and the
relevant authority, we affirm the defendant's conviction and sentence.

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

APPENDIX
http://www.tba.org/tba_files/TSC/coledetrick_apx.wpd

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

JACKIE BOSTIC v. PAUL DALTON, ET AL.
CORRECTED OPINION

Court:TSC - Workers Comp Panel

Attorneys:                          

James Franklin Logan, Jr., Cleveland, Tennessee, for the
Plaintiff-Appellant, Jackie Bostic.

Sheridan C. Randolph, Cleveland, Tennessee, for the Defendant-Appellees,
Paul Dalton and Delicia L. Dalton.

Judge: HOLDER

First Paragraph:

In this workers' compensation appeal, we must determine whether the
appellee, a father who supervised the construction of his daughter's
residence, is required to pay workers' compensation benefits to the
appellant, the employee of a subcontractor who was injured during the
construction of the residence.  We hold that the father is an
uncompensated agent of the owner and therefore falls within the owner's
exemption of Tennessee Code Annotated section 50-6-113(f) (1999).  Thus,
we adopt the conclusions of the Special Workers' Compensation Appeals
Panel affirming the judgment of the trial court.

CORRECTED OPINION
http://www.tba.org/tba_files/TSC_WCP/bosticjackie.wpd

BILLY GENE GRAY v. CULLOM MACHINE, TOOL & DIE, INC., ET AL.
CORRECTED OPINION

Court:TSC - Workers Comp Panel

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; and Richard M. Murrell,
Assistant Attorney General,  Nashville, Tennessee, for the Appellant,
Second Injury Fund.

Robert J. Uhorchuk, Chattanooga, Tennessee, for the Appellees, Cullom
Machine, Tool & Die, Inc., and Travelers Insurance Company.

William J. Brown, Cleveland, Tennessee, for the Appellee, Billy Gene
Gray.

Judge: ANDERSON

First Paragraph:

We granted review in this workers' compensation case to determine
whether the trial court erred in 1) awarding temporary total benefits,
2) apportioning liability between the employer and the Second Injury
Fund, and 3) awarding 180 weeks of lump-sum benefits.  After reviewing
the record and applicable authority, we conclude that the trial court
erred in awarding temporary total benefits to the employee who continued
to work for the employer following his injury and then later operated
his own unprofitable business.  We also hold that the trial court erred
in limiting the employer's liability for permanent total disability
benefits to 60% of 400 weeks and in awarding 180 weeks of lump sum
benefits.  Accordingly, we reverse the trial court's judgment and remand
for further proceedings consistent with this opinion.

CORRECTED OPINION
http://www.tba.org/tba_files/TSC_WCP/graybillyg.wpd

JERRY C. HARLAN v. CAROL L. SOLOMAN

Court:TCA

Attorneys:                          

D. Scott Parsley and Joshua G. Strickland, Nashville, Tennessee, for the
appellant, Carol L. Soloman.

Gregory H. Oakley, Nashville, Tennessee, for the appellee, Jerry C. 
Harlan.

Judge: CAIN

First Paragraph:

This appeal comes to the court from the trial court's approval of a
special master's report.  The case was referred to a special master
following a jury trial after which appellee Harlan was awarded 16.79%
ownership in certain real property which appellant Soloman had
purchased.  The report did not consider depreciation and other
deductions which Harlan had claimed in connection with his alleged
ownership of the property.  After the court adopted the report Soloman
moved to amend the order, arguing that she was entitled to an 83.21%
share of those deductions, and that the trial court should amend the
report to conform with the motion.  The trial court refused.  Soloman
appeals.  We affirm.

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

In Re:  ESTATE OF MURREY LOUIS WAKEFIELD, DECEASED; AMSOUTH BANK AND
JUDITH WAKEFIELD SANDLIN, CO-EXECUTORS, LINDA WAKEFIELD MELVIN AND
JUDITH SANDLIN V. ESTATE OF NANCY WAKEFIELD COLEMAN, TED R. BROWNING,
EXECUTOR, MICHAEL KURT WAKEFIELD, ELIZABETH CHEREE W. ROSS, RENEE
WAKEFIELD MACDONALD, NATHAN MURREY GREEN, TIMOTHY LEWIS WAKEFIELD, DOUG
SANDLIN, KEN MELVIN, AND KRISTINA M. SANDFORD
CORRECTED OPINION

Court:TCA

Attorneys:                          

Douglas J. Brown and Gary C. Shockley, Nashville, for the appellant
Estate of Nancy Wakefield Coleman, Ted R. Browning, Executor.

Charles Trost, Joseph A. Woodruff, Stephanie J. Edwards, Nashville, for
appellees Estate of Murrey Louis Wakefield, AmSouth Bank and  Judith
Wakefield Sandlin, Co-Executors,  Linda Wakefield Melvin, and Judith W.
Sandlin.

Daniel C. Paulus and Michael P. Dolan, Nashville, for additional
respondents Michael Kurt Wakefield, Elizabeth Cheree W. Ross, Renee
Wakefield MacDonald, Nathan Murrey Green, Timothy Lewis Wakefield, Doug
Sandlin, Ken Melvin, and Kristina M. Sandford.

Judge: KIRBY

First Paragraph:

This case involves the construction of a will.  The will established a
trust for the benefit of the decedent's children that provided income
for eleven years.  At the end of the eleven year term, the trust was to
be terminated and the trust assets distributed to the beneficiaries. 
During the eleven-year term, one of the decedent's children died,
leaving no spouse, children or surviving parent.  The beneficiary under
the deceased child's will sued, seeking that child's share of the trust
assets.  At issue was whether the trust assets vested in the
beneficiaries when the testator died or when the trust terminated.  The
probate court held that the decedent intended for the trust corpus not
to vest in the beneficiaries until the trust terminated, and that the
beneficiary under the child's will would not receive her share of the
trust assets.  We affirm, finding that the language of the will
indicates that the testator intended for the corpus of the trust to vest
when the trust terminated.

CORRECTED OPINION
http://www.tba.org/tba_files/TCA/wakefieldml.wpd

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