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Wednesday, April 12, 2006

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Join your colleagues from the Tennessee legal community at the state's largest and longest-running gathering - the annual Tennessee Bar Association convention. This year's event will be in Memphis, June 14-17 at the Peabody Hotel. The event will again be held in conjunction with gatherings of the Tennessee Judicial Conference, the Tennessee Trial Lawyers Association and the Tennessee Lawyers' Association for Women. Register or find out more now.

http://www.tba.org/convention2006/index.html

TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at If you have forgotten your password or need to obtain a password, you can look it up on TBALink at http://www.tba.org/getpassword.mgi.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
03 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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

SHERRY A. HUBBLE ET AL. v. DYER NURSING HOME

Court: TSC

Attorneys:

John D. Burleson and Michael L. Mansfield, Jackson, Tennessee, for the appellant, Dyer Nursing Home.

Michael A. Carter and C. Timothy Crocker, Milan, Tennessee, for the appellee, Sherry A. Hubble.

John S. Little, Jackson, Tennessee, for the appellee, State Farm Insurance Company.

Judge: BARKER

This workers' compensation action arose out of an automobile accident occurring while the plaintiff was on her way to an orientation session held at a location separate from the nursing home facility at which she had been hired to work. The chancery court awarded the plaintiff 95% permanent partial disability and also ordered the defendant employer to reimburse State Farm, the insurer of the driver of the automobile, for medical payments made under the driver's policy. The court did not order reimbursement for amounts paid by State Farm under the liability portion of the policy. On appeal, the defendant argues: 1) the plaintiff was not an employee at the time of the accident; 2) if she was an employee, the injury did not arise out of and in the course of the plaintiff's employment; 3) the trial court erred in ordering the defendant to reimburse State Farm for medical payments made; and 4) the trial court erred in not allowing the defendant a credit for those amounts already paid by State Farm. The plaintiff appeals the finding of 95% permanent partial disability, arguing that the evidence supports a finding of permanent total disability. State Farm appeals the court's denial of reimbursement for the amount State Farm paid under the liability provision of the policy. We accepted review before the case was heard or considered by the Special Workers' Compensation Appeals Panel. Upon due consideration, we affirm the decision of the chancery court that the plaintiff was an employee, that she was injured in the course and scope of her employment, and that she suffered 95% permanent partial disability. We also hold that the trial court correctly ordered the defendant to reimburse State Farm for the medical benefits paid while denying reimbursement for the amounts paid under the liability provision. Finally, we conclude that the defendant is not entitled to a credit for the amount paid by State Farm.

http://www.tba2.org/tba_files/TSC/2006/hubblesa041206.pdf

ANN S. WING v. KATHY PARCHMAN

Court: TCA

Attorneys:

Markley Runyon Gill, Erin, Tennessee, for the appellant, Kathy Parchman.

Clark Lee Shaw and Martha Child, Nashville, Tennessee, for the appellee, Ann S. Wing.

Judge: CAIN

In this appeal from Circuit Court in Davidson County, the daughter by a previous marriage of a deceased ex-husband appeals the imposition of a constructive trust upon monies received from the ex-husband's pension death benefit. The trial court held that the ex-husband's designation of the daughter as a death beneficiary was in contravention of the court's prior divorce decree and order regarding personal property division. For the reasons and under the authorities cited herein, we affirm the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2006/winga041206.pdf

STATE OF TENNESSEE v. CAROLYN BERNARD

Court: TCCA

Attorneys:

Richard A. Tate, Blountville, Tennessee, for the appellant, Carolyn Bernard.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; Greeley Wells , District Attorney General; and J. Lewis Combs, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The appellant, Carolyn Bernard, pled no contest to charges of aggravated burglary, theft of property over $1,000 and failure to appear in January of 2002. As a result, the appellant was sentenced to an effective sentence of three years. The trial court placed the appellant on probation with specified conditions. In December of 2002, the appellant was charged with leaving the scene of an accident and committing a registration violation. A probation violation warrant was subsequently issued. The trial court revoked the appellant's probation, ordered her to serve sixty days in incarceration, then reinstated the appellant to intensive probation. On March 7, 2005, a second probation violation warrant was issued against the appellant for violating the terms and conditions of her probation. The appellant pled guilty to violating one of the special conditions of her probation. After a hearing, the trial court determined that the appellant violated several additional conditions of her probation. As a result, the trial court revoked the appellant's probation and ordered her to serve the three-year sentence in the Department of Correction. The appellant appeals the trial court's decision to revoke her probation. Because the trial court did not err in revoking the appellant's probation, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/bernardc041206.pdf

STATE OF TENNESSEE v. JOEL LESLIE BOOKER, SR.

Court: TCCA

Attorneys:

Joseph F. Harrison, Blountville, Tennessee, for the appellant, Joel Leslie Booker, Sr.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Greeley Wells, District Attorney General; and James F. Goodwin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The defendant, Joel Leslie Booker, Sr., was charged with violating the Motor Vehicle Habitual Offender (MVHO) Act while on probation for a previous violation of the same act. The defendant pled guilty to the second count with the understanding that he would ask for probation, and the trial court would hold an alternative sentencing hearing. The trial court denied the defendant's request for alternative sentencing. On appeal, the defendant argues that the trial court erred in denying his request. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/bookerj041206.pdf

STATE OF TENNESSEE v. LIONEL LINDSEY

Court: TCCA

Attorneys:

Jeffrey P. Miles, Johnson City, Tennessee, for the appellant, Lionel Lindsey.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Gene Perrin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant was convicted of two counts of the sale of .5 grams or more of cocaine within one thousand feet of a school, a Class A felony. The trial court sentenced Defendant as a Range II, multiple offender, to concurrent sentences of thirty-two years, six months for each conviction. Defendant now appeals arguing (1) that the trial court erred in not granting Defendant�s motion to dismiss the indictment; (2) that the trial court erred in permitting the State to amend the indictment without Defendant's consent after jeopardy attached; (3) that the trial court erred by denying Defendant's motion for mistrial; (4) that the evidence was insufficient to support Defendant�s convictions; and (5) that the trial court erred in determining the length of Defendant�s sentences. After a thorough review of the record, we conclude that Defendant failed to timely object under Rule 12 of the Tennessee Rules of Criminal Procedure to the defects in the indictment. We also conclude that the trial court erred in allowing the State to amend the indictment without Defendant's consent after jeopardy attached, but that such error was harmless beyond a reasonable doubt. We therefore affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2006/lindseyl041206.pdf

TODAY'S NEWS

Legal News
Legislative News
BPR Actions

Legal News

Court rules Knox ballot will not change

The May 2 Knox County primary election will continue as scheduled and with the ballot as is, Knox County Chancellor John Weaver ruled late Tuesday. Read about the decision in the

Knoxville News Sentinel

Early voting begins today

Early voting for May primaries begins today. For a list of counties with May primaries, visit the

Secretary of State's website

State looks into sheriff's office

Allegations of misconduct and criminal activity by Madison County Sheriff David Woolfork will be investigated by the county audit division of the state comptroller's office, reports the Jackson Sun. District Attorney General Robert "Gus" Radford of the 24th Judicial District also will assist in the review. Woolfork is accused of using his county credit card to travel excessively, purchase expensive meals and stay at expensive hotels. He has denied the allegations.