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Today's Opinions: July 29, 2005
Volume 11 — Number 144
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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04 New Opinion(s) from the Tennessee Court of Appeals
04 New Opinion(s) from the Tennessee Court of Criminal Appeals
05 New Opinion(s) from the Tennessee Attorney General
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


GARY CLARK v. STANDARD IRON, INC. and LUMBERMAN'S CASUALTY INSURANCE
COMPANY v. SUE ANN HEAD, ADMINISTRATOR OF THE SECOND INJURY FUND FOR
THE STATE OF TENNESSEE.

Court:TSC - Workers Comp Panel

Attorneys:   

Paul G. Summers, Diane Stamey Dycus, and Richard M. Murrell,
Nashville, Tennessee, for the Appellants, Sue Ann Head, Administrator
of the Second Injury Fund for the State of Tennessee.

Gerard M. Siciliano and Preston A. Hawkins, Luther-Anderson, P.L.L.P.,
Chattanooga,, Tennessee, for Appellees, Standard Iron, Inc. and
Lumberman's Mutual Casualty Insurance Company. J. Bartlett Quinn,
Chambliss,                       

Judge: CORLEW

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with the provisions of 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 Second Injury Fund has appealed the action of
the trial court, which determined that the Employer, Standard Iron,
Inc., was responsible for payment of 25% of the award to the Worker,
Gary Clark, and that the Second Injury Fund was responsible for
payment of 75%. Upon our consideration of all of the evidence, we find
that the trial court properly determined all issues, but we find that
the award should be modified.

http://www.tba.org/tba_files/TSC_WCP/2005/clark072905.pdf
											
DAVID R. McPEAK v. SPECIALTY SURGICAL INSTRUMENTATION, INC., et al. Court:TSC - Workers Comp Panel Attorneys: Allen Barnes, Nashville, Tennessee, for the Appellant, David R. McPeak. Vanessa R. Comerford, Brentwood, Tennessee, for the Appellee, Specialty Surgical Instrumentation, Inc. Judge: CORLEW First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with the provisions of 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 Appellant, David R. McPeak, has appealed the action of the trial court, which dismissed his cause of action for failure to timely file his petition for reconsideration of disability pursuant to Tennessee Code Annotated section 50-6-241. After a thorough review of the record and the relevant caselaw, we conclude that the petition was timely filed. Accordingly, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC_WCP/2005/mcpeakd072905.pdf
I & L INVESTMENTS, LLC, ET AL. v. CAGLE'S CONSTRUCTION, LLC, ET AL. Court:TCA Attorneys: Roger E. Jenne, Cleveland, Tennessee, for the appellants, I & L Investments, LLC, and Wet Willy's Fireworks Supermarkets of Tennessee, Inc. Jimmy W. Bilbo, Cleveland, Tennessee, for the appellees, Cagle's Construction, LLC and Ed Cagle. Judge: SUSANO First Paragraph: I & L Investments, LLC ("I & L"), and Wet Willy's Fireworks Supermarkets of Tennessee, Inc. ("Wet Willy's"), sued Cagle's Construction, LLC, and Ed Cagle (collectively the "Cagles"), seeking to enforce restrictive covenants with respect to real property owned by Cagle's Construction, LLC. The trial court granted the defendants summary judgment, holding that the defendants' tender of $100,000 to I & L as liquidated damages pursuant to the provisions of a document entitled "Settlement and Mutual Release" barred the plaintiffs' attempt to enforce the restrictive covenants. The plaintiffs appeal the trial court's judgment, contending that the court erred in failing to enforce the restrictive covenants against the Cagles in view of their plan to construct a building on the property for the purpose of selling fireworks. We affirm. http://www.tba.org/tba_files/TCA/2005/Ili72905.pdf
CURTIS MEREDITH v. CRUTCHFIELD SURVEYS, ET AL. Court:TCA Attorneys: Curtis Meredith, LaFollette, Tennessee, appellant, pro se. R. Loy Waldrop, Jr. and Kristi M. Bennett, Knoxville, Tennessee, for the appellees, Crutchfield Surveys and Jerry Crutchfield. Judge: SUSANO First Paragraph: Curtis Meredith sued Crutchfield Surveys and Jerry Crutchfield for damages allegedly sustained by the plaintiff as a result of incorrect surveys prepared by the defendants. The trial court dismissed the plaintiff's suit. He appeals, asserting that the trial court erred in dismissing his complaint. We hold that the plaintiff's suit was not filed within the time specified in the applicable statute of repose and that the plaintiff's generally-worded charge of fraud fails to satisfy the requirements of Tenn. R. Civ. P. 9.02. Accordingly, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCA/2005/meredithc72905.pdf
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES, v. AAB, In the Matter of: NAB, (7/27/99) Court:TCA Attorneys: James F. Taylor, Mt. Carmel, Tennessee, for appellant. Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, Nashville, Tennessee, for appellee. Judge: FRANKS First Paragraph: The Trial Court terminated the mother's parental rights on statutory grounds. On appeal, we affirm. http://www.tba.org/tba_files/TCA/2005/nab72905.pdf
APPOINTED TRUSTEES, RALPH S. DAVIS, HERMAN TRAMMELL, and WENDELL TRAMMELL, v. RONNIE YANCEY and wife, RITA YANCEY, and JOE TRAMMELL, JR., and wife, LINDA TRAMMELL, ET AL. Court:TCA Attorneys: Timothy P. Webb, Jacksboro, Tennessee, for appellant, Trammell Cemetery Trust. Charles B. Sexton, Oneida, Tennessee, for appellees. Judge: FRANKS First Paragraph: In this action, the Trial Court granted appellees summary judgment which adjudicated fewer than all of the claims or rights and liability of all of the parties. We dismiss the appeal from that Judgment and remand with instructions. http://www.tba.org/tba_files/TCA/2005/trammell72905.pdf
STATE OF TENNESSEE v. WILLIAM YATES CRAMER Court:TCCA Attorneys: Jim W. Horner, District Public Defender, and Patrick R. McGill (on appeal) and James E. Lanier (at trial), Assistant Public Defenders, for the appellant, William Yates Cramer. Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Karen Waddell Burns, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, William Yates Cramer, was convicted by a Lake County Circuit Court jury of driving under the influence of an intoxicant (DUI), second offense, a Class A misdemeanor. The trial court imposed a sentence of eleven months, twenty-nine days, with probation after ninety days in jail and ordered the defendant to pay a fine of $600.00. On appeal, the defendant contends that (1) the evidence is insufficient to support his conviction, (2) the trial court erred by allowing the state to use his prior conviction for aggravated assault to impeach his testimony, and (3) his sentence of confinement violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/2005/cramer072905.pdf
STATE OF TENNESSEE v. BOBBY JOE LESTER Court:TCCA Attorneys: Kamilah E. Turner, Memphis, Tennessee, Attorney for the Appellant, Bobby Joe Lester. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David E. Coenen, Assistant Attorney General; William L. Gibbons, District Attorney General; Reginald Henderson and Paul Hagerman, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The Appellant, Bobby Joe Lester, was convicted of attempted first degree murder, especially aggravated kidnapping, and coercion of a witness. As a result of these convictions, Lester received an effective eighty-five year sentence. On appeal, Lester argues that: (1) the evidence was not sufficient to support the verdicts; (2) the trial court erred in failing to dismiss a juror; and (3) consecutive sentencing was improper. After a review of the record, we conclude that the proof is sufficient to support Lester's convictions on all counts. Moreover, we conclude issues (2) and (3) are without merit. http://www.tba.org/tba_files/TCCA/2005/lesterbj072905.pdf
STATE OF TENNESSEE v. BOBBY JOE LESTER Court:TCCA HAYES DISSENTING http://www.tba.org/tba_files/TCCA/2005/lesterbj_dis072905.pdf
MICHAEL A. POUNDS v. KEVIN MYERS, WARDEN, STATE OF TENNESSEE Court:TCCA Attorneys: Michael A. Pounds, Pro Se. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee, Kevin Myers, Warden, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Michael A. Pounds, appeals from the trial court's dismissal of his petition seeking habeas corpus relief. The State has filed a motion requesting that this court affirm the trial court's dismissal of the petition pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State's motion is granted. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/2005/poundsm72905.pdf
STATE OF TENNESSEE v. JOHN C. WALKER, III Court:TCCA Attorneys: David N. Brady, District Public Defender, and John B. Nisbet, III, Assistant Public Defender, for the appellant, John C. Walker, III. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; William E. Gibson, District Attorney General; and Anthony J. Craighead, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: This case is before us after remand by the Tennessee Supreme Court. The Appellant, John C. Walker, III, was convicted of second degree murder and sentenced to twenty-five years. On direct appeal, this court originally affirmed the conviction and sentence. See State v. John C. Walker, III, No. M2003-01732-CCA-R3-CD (Tenn. Crim. App. at Nashville, filed Aug. 11, 2004). Subsequently, this court granted the Appellant's motion to rehear, pursuant to Tennessee Rule of Appellate Procedure 39, as to the application of enhancement facts, in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Upon rehearing, the Appellant's sentence was reduced to twenty years due to Blakely violations in the application of enhancement factors. See State v. John C. Walker, III, No. M2003-01732-RC-CD (Tenn. Crim. App. at Nashville, filed Feb. 8, 2005), perm. to appeal granted (Tenn. June 20, 2005). Subsequently, our supreme court released the case of State v. Edwin Gomez and Jonathan S. Londono, No. M2002-01209- SC-R77-CD, ____ S.W.3d ____ (Tenn. Apr. 15, 2005). Therein, the court concluded that Tennessee's sentencing structure is not impacted by Blakely. This case has now been remanded to this court for reconsideration in light of Gomez. See State v. John C. Walker, III, No. M2003- 01732-SC-R11-CD (Tenn. at Nashville, June 20, 2005). After our review in light of State v. Gomez, we affirm the conviction and sentence as imposed by the trial court. http://www.tba.org/tba_files/TCCA/2005/walkerj72905.pdf
Interpretation of Tenn. Code Ann. S 7-2-106 regarding referendum on metropolitan charter Date: July 26, 2005 Opinion Number: 05-115 http://www.tba.org/tba_files/AG/2005/op115.pdf
State House Legislative District as a Jurisdiction for Drug Dealer Liability Date: July 27, 2005 Opinion Number: 05-116 http://www.tba.org/tba_files/AG/2005/op116.pdf
Tenn. Code Ann. S 13-7-208(d) Protection of Nonconforming Billboards Date: July 27, 2005 Opinion Number: 05-117 http://www.tba.org/tba_files/AG/2005/op117.pdf
District Attorneys General -- Contract With Debt Collection Agency Date: July 27, 2005 Opinion Number: 05-118 http://www.tba.org/tba_files/AG/2005/op118.pdf
Members of the Blount County Regional Planning Commission Date: July 27, 2005 Opinion Number: 05-119 http://www.tba.org/tba_files/AG/2005/op119.pdf

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