February 18, 1999
Volume 5 -- Number 022

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink from Tennessee's three appellate courts.

This Issue (IN THIS ORDER):
 
03 New Opinion(s) from the Tennessee Supreme Court
05 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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Lucian T. Pera
Editor-in-Chief, TBALink

		
		
JOHN JAY HOOKER
VS.
DON SUNDQUIST,
and
JOHN JAY HOOKER
VS.
FRED D. THOMPSON

Court:TSC

Judge:BARKER

First Paragraph:

In this case, we consider whether Tennessee law affords a basis for
the Chief Justice of the Supreme Court of Tennessee to appoint Special
Supreme Court Justices.  The petitioner, John Jay Hooker, has filed a
petition to rehear in this cause pursuant to T.R.A.P. 39(a)(2).  This
cause was originally filed before this Court by the petitioner on May
19, 1998 pursuant to T.R.A.P. 11.  The petitioner proceeded to file a
motion on June 12, 1998 requesting that all members of this Court
recuse themselves due to conflict of interest.  Such motion was denied
on July 7, 1998.

http://www.tba.org/tba_files/TSC/hooker1_ord.WP6



BRYANT DEWAYNE MILLEN VS. STATE OF TENNESSEE Court:TSC Attorneys: For Appellant: For Appellee: Leslie I. Ballin John Knox Walkup Mark A. Mesler Attorney General & Reporter BALLIN, BALLIN & FISHMAN, P.C. Memphis, Tennessee Michael E. Moore Solicitor General Daryl J. Brand Senior Counsel Criminal Justice Division Nashville, Tennessee At Trial: John W. Pierotti District Attorney General Thomas D. Henderson Assistant District Attorney General Memphis, Tennessee Judge:ANDERSON First Paragraph: We granted this appeal to determine whether one who intends to kill a specific person but instead kills an innocent bystander may be convicted of premeditated and deliberate first degree murder under the common law doctrine of "transferred intent." The defendant, who intentionally fired several gunshots at a specific person but inadvertently killed a random victim near the scene, was convicted of premeditated and deliberate first degree murder. The author of the Court of Criminal Appeals' opinion concluded that the trial court properly instructed the jury on the doctrine of transferred intent under Tennessee law; however, one judge on the three-judge panel concurred in results only, and the other judge wrote a concurring opinion questioning the application of transferred intent. http://www.tba.org/tba_files/TSC/millenbd_opn.WP6
STATE OF TENNESSEE VS. KRISTINA SCHINDLER Court:TSC Attorneys: FOR APPELLANT: FOR APPELLEE: MARK E. STEPHENS JOHN KNOX WALKUP DISTRICT PUBLIC DEFENDER ATTORNEY GENERAL & REPORTER PAULA R. VOSS MICHAEL E. MOORE ASSISTANT PUBLIC DEFENDER SOLICITOR GENERAL Knoxville PETER M. COUGHLAN ASSISTANT ATTORNEY GENERAL GREGORY D. SMITH Clarksville Nashville Judge:HOLDER First Paragraph: We granted this appeal to address whether a trial court can consider prior grants of diversion or previously expunged offenses in determining a defendant's suitability for diversion. In the case now before us, the trial court denied the defendant's request for judicial diversion because the defendant had previously been placed on diversion on two different occasions. The appellate court affirmed the trial court's decision to deny the defendant's application for judicial diversion. Upon review, we hold that evidence of prior diversions may be considered in determining whether a defendant is a suitable candidate for diversion. http://www.tba.org/tba_files/TSC/schindlk_opn.WP6
LISA M. BLANKENSHIP VS. MARS, INCORPORATED Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Jeffrey L. Cleary Roger E. Jenne Cleary & Lockett, P.C. Michael E. Jenne 530 Pioneer Bank Bldg. P.O. Box 161 801 Broad Street Cleveland, Tenn. 37364-0161 Chattanooga, Tenn. 37402 Judge:THAYER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employer, Mars, Incorporated, has appealed from a judgment entered by the trial court awarding the employee, Lisa Blankenship, 50% permanent partial disability to the body as a whole. The appeal presents issues concerning whether the court was in error (1) in finding the employee's injury was work-related, (2) in finding the employee gave proper notice of the injury, (3) in finding the one year statute of limitations had not expired, (4) in allowing discretionary costs and (5) in awarding medical expenses. http://www.tba.org/tba_files/TSC_WCP/Blankens_wc.WP6
GEORGE EDWARD FREEMAN VS. AMERICAN MOTORIST INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Steven B. Johnson Roger L. Ridenour Vonda M. Laughlin RIDENOUR, RIDENOUR & FOX Suite 810, 1st American Center P. O. Box 530 P. O. Box 2649 Clinton, TN 37717-0530 Knoxville, TN 37901-2649 Judge:INMAN First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. George Edward Freeman (employee), sustained an injury to his left eye while grinding metal at work, when a piece of metal penetrated his safety glasses and lodged in his cornea. http://www.tba.org/tba_files/TSC_WCP/Freeman-_wc3.WP6
JOYCE HAMILTON VS. LIFE CARE CENTER OF AMERICA d/b/a LIFE CARE CENTER OF CLEVELAND Court:TSC - Workers Comp Panel Attorneys: For Appellant: For Appellee: Wesley R. Kliner, Jr. Conrad Finnell Allen & Kliner Cleveland, Tennessee Chattanooga, Tennessee Judge:LOSER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer, Life Care Center, insists the evidence preponderates against the trial court's finding that the injury to the employee or claimant, Hamilton, is permanent or, alternatively, that the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded the judgment should be affirmed. It is undisputed that, on September 15, 1993, the claimant slipped on a wet floor and fell backward, hitting the back of her head on a hard floor, while working for the employer. After a trial, the trial judge awarded permanent partial disability benefits based on forty percent to the body as a whole. The extent of an injured worker's disability is an issue of fact. Jaske v. Murray Ohio Mfg. Co., 750 S.W.2d 150 (Tenn. 1988). Thus, appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 50-6-225(e)(2). http://www.tba.org/tba_files/TSC_WCP/hamivlif_opn.WP6
JOHNNY McGAHA VS. U.S. MARINE, INC./BAYLINER Court:TSC - Workers Comp Panel Attorneys: For the Appellants: For the Appellees: Robert R. Davies Thomas V. Testerman Stokes, Fansler, & Williams Attorney at Law P. O. Box 2644 301 East Broadway Knoxville, Tennessee 37901 Newport, Tennessee 37821 Judge:McLELLAN First Paragraph: This worker's compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225 (e) (3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employer U. S. Marine, Inc./Bayliner has appealed from the action of the trial court in awarding the employee, Johnny McGaha, 70% permanent partial disability to the body as a whole, temporary total benefits for April 10, 1992 through September 19, 1993 and medical expenses of Dr. Michael Hood. http://www.tba.org/tba_files/TSC_WCP/mcgahaus_opn.WP6
KATHY L. RHEA VS. MODINE MANUFACTURING CO. & SENTRY INSURANCE CO Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Michael J. Mollenhour Roger L. Ridenour P. O. Box 9299 P. O. Box 530 Knoxville, Tennessee 37940 Clinton, Tennessee 37716 Judge:MCLELLAN First Paragraph: This worker's compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6- 225 (e) (3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff, age 36 at the time of trial, has a high school degree and an additional six weeks of vocational training in the use of a computer. The plaintiff describes the training as being very limited. The plaintiff had previously worked for two years as an inspector at the Microdot Company prior to beginning her work for Modine Manufacturing in 1983. The plaintiff was terminated by her employer in January, 1996 as part of a general layoff. http://www.tba.org/tba_files/TSC_WCP/rheawc_opn.WP6
SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/statelst_216.WP6
JAMES JUDD VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DALE QUILLEN JOHN KNOX WALKUP 95 White Bridge Rd. Attorney General & Reporter Nashville, TN 37205 DARYL J. BRAND Asst. Attorney General Cordell Hull Bldg., 2nd Fl. 425 Fifth Ave., North Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General CARRIE DAUGHTREY -and- KATRIN MILLER Asst. District Attorneys General Washington Square, Suite 500 222 Second Ave., South Nashville, TN 37201 Judge:PEAY First Paragraph: The petitioner pled guilty to assault for which he received an eleven month, twenty-nine day suspended sentence. The petitioner's probation was subsequently revoked for failure to comply with the terms of his probation. The petitioner appealed the probation revocation and filed a post-conviction petition while the appeal was pending in the Davidson County Criminal Court. The appeal and the post-conviction petition were heard together in the Davidson County Criminal Court, where the petitioner's probation revocation was affirmed, and his petition for post-conviction relief was denied. The petitioner now appeals. After a review of the record and applicable law, we affirm the judgment of the lower court. http://www.tba.org/tba_files/TCCA/juddj_opn.WP6
STATE OF TENNESSEE VS. LEONARD HUSTON PRATER, JR. WITH CONCURRING OPINION Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DOYLE E. RICHARDSON JOHN KNOX WALKUP 128 W. Lincoln Street, Ste. B Attorney General & Reporter Tullahoma, TN 37388 DARYL J. BRAND Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 MICHAEL LAYNE District Attorney General STEPHEN E. WEITZMAN Assistant District Attorney General P.O. Box 147 Manchester, TN 37355 Judge:WOODALL First Paragraph: The Defendant, Leonard Huston Prater, appeals as of right his conviction of third offense DUI following a jury trial in the Coffee County Circuit Court. The trial court sentenced him to eleven (11) months and twenty-nine (29) days, suspended after 180 days, suspended his driver's license for ten (10) years, and fined him $5,000. The trial court also ordered the conditional forfeiture of Defendant's vehicle. http://www.tba.org/tba_files/TCCA/praterlh_opn.WP6 CONCURRING OPINION: http://www.tba.org/tba_files/TCCA/praterlh_con.WP6

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