April 8, 1999
Volume 5 -- Number 046

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):
 
00 New Opinion(s) from the Tennessee Supreme Court
04 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
06 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


SHARON ABBOTT
VS.
QUEBECOR PRINTING

Court:TSC - Workers Comp Panel

Attorneys:                          
For Appellant:                      For Appellee:

John R. Lewis                       Stacy A. Turner
Nashville, Tennessee                Sherry Phillips
                                    Clarksville, 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.  The employer, Quebecor,
insists the trial judge erred in finding that the plaintiff suffered a
permanent compensable injury and that the claim is barred by the last
injurious injury rule.  As discussed below, the panel has concluded
the judgment should be affirmed.

http://www.tba.org/tba_files/TSC_WCP/Abbotts_opn.WP6



NATHAN V. HARRIS VS. WENDEL ADKINS d/b/a TENNESSEE RIDERS, INC., VALIANT INSURANCE COMPANY and STEPHEN N. CIANCIO Court:TSC - Workers Comp Panel Attorneys: For Appellants: For Appellee: Sean Antone Hunt Joseph K. Dughman Spicer, Flynn & Rudstrom Bruce, Weathers, Corley, Dughman & Lyle Nashville, Tennessee Nashville, 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. The employer and its insurer contend in this appeal that the trial court erred in awarding the medical expenses of a nonauthorized provider and that the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/Harrisn_opn.WP6
KENNETH PAXTON VS. FLOYD and FLOYD, INC., and LIBERTY MUTUAL INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: For Appellant: For Appellee: Jeffrey M. Levine Paul Bates Nashville, Tennessee Lawrenceburg, 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. Fairly stated, the issues on appeal are (1) whether the employee or claimant, Paxton, gave or was excused from giving timely notice of his injury, (2) whether the employee suffered a compensable injury by accident, and (3) whether the trial judge erred in ruling on the admissibility of a doctor's report. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/Paxtonk_opn.WP6
GERALD DEWAYNE SHARP VS. SHARP TRANSPORT, INC. Court:TSC - Workers Comp Panel Attorneys: For Appellant: For Appellee: David D. Peluso Elaine M. Youngblood Hohenwald, Tennessee Nashville, 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. Fairly stated, the issue is whether the employee's increased permanent medical impairment was causally related to an injury occurring in October, 1994. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/Sharpg_opn.WP6
DOYLE SHIRT MANUFACTURING CORP. VS. T. MICHAEL O'MARA, et al Court:TCA Attorneys: SAMUEL J. HARRIS P. O. Box 873 Cookeville, Tennessee 38503 ATTORNEY FOR PLAINTIFF/APPELLANT TOM CORTS P. O. Box 198985 Nashville, Tennessee 37219-8985 ATTORNEY FOR DEFENDANTS/APPELLEES Judge: BUSSART First Paragraph: This appeal involves the requirement of Tennessee Rule of Civil Procedure 11.01 that pleadings be signed by an attorney or by a party if that party is not represented by an attorney. Finding that the plaintiff did not comply with Rule 11 within the statutory period of limitations, the Putnam County Chancery Court granted summary judgment to the defendant. We affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/Doyleshr_opn.WP6
REMINGTON INVESTMENTS, INC. VS. RONALD S. OBENAUF and ARDETH OBENAUF Court:TCA Attorneys: W. MITCHELL CONE DAVID P. CANAS Williams & Prochaska, P.C. 401 Church Street, Suite 2600 Nashville, Tennessee 37219 ALIX COULTER CROSS Harwell Howard Hyne Gabbert & Manner, P.C. 1800 First American Center 315 Deaderick Street Nashville, Tennessee 37238 ATTORNEY FOR DEFENDANT/APPELLANT Judge: CAIN First Paragraph: This is an appeal from a grant of summary judgment by the trial court domesticating a Connecticut judgment under Tennessee Code Annotated section 26-6-101 et seq. against both defendants. http://www.tba.org/tba_files/TCA/Reminvst_opn.WP6
OTHA SMITH VS. ARJORIE SMITH Court:TCA Attorneys: ROBERT D. MASSEY P. O. Box 409 Pulaski, Tennessee 38478 Attorney for Plaintiff/Appellant JOE W. HENRY, JR. 119 South First Street Pulaski, Tennessee 38478 Attorney for Defendant/Appellee Judge: CANTRELL First Paragraph: Following an in camera proceeding, the trial court declared the parties divorced, and awarded the real property at issue to the husband. The wife filed a Motion to Alter and Amend, which resulted in a new hearing, and a new decree whereby the real property was equally divided between the parties. The husband claimed on appeal that the trial court erred in re-opening the case after his initial decree. We affirm the trial court, but we amend its final order to make sure there is no doubt that the parties have been legally divorced. http://www.tba.org/tba_files/TCA/Smitho_opn.WP6
LUVANA LEEAN TUDORS VS. CARL WILLIAM BELL, JR. Court:TCA Attorneys: CHARLES BOYD COLEMAN, JR. 4279 Main Street Jasper, Tennessee 37347 Attorney for Plaintiff/Appellee LISA ZARZOUR ESPY 615 Lindsay Street, Suite 300 Chattanooga, Tennessee 37403 Attorney for Defendant/Appellant Judge: CANTRELL First Paragraph: This is an appeal of two ten-day sentences for criminal contempt. We find that the procedural requirements for a sentence for criminal contempt have not been satisfied. We, therefore, reverse the lower court's order. http://www.tba.org/tba_files/TCA/Tudorsll_opn.WP6
STATE OF TENNESSEE VS. BILLY G. BARNETT Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: RICHARD A. SPIVEY JOHN KNOX WALKUP 142 Cherokee Street Attorney General and Reporter Kingsport, TN 37660 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 H. GREELEY WELLS, JR. District Attorney General BARRY STAUBUS Assistant District Attorney General Blountville, TN 37617 Judge:WELLES First Paragraph: The petitioner, Joseph Barnett, appeals as of right from the denial of his petition for post-conviction relief by the Claiborne County Criminal Court. He seeks relief from his conviction following a jury trial for first degree murder, a Class A felony, resulting in a sentence of life imprisonment. He claims that the trial court incorrectly found that he received the effective assistance of counsel. Specifically, the petitioner contends that his trial attorney failed to preserve on the record his motion for a psychiatric expert, thereby precluding him from showing on appeal a particularized need for the expert. He also argues that his attorney was ineffective because he failed to conduct the motion hearing ex parte. The state argues that the trial court properly denied the post- conviction petition. We agree. http://www.tba.org/tba_files/TCCA/Barnett_rev.WP6
WILLIAM LEWIS HOWELL VS. STATE OF TENNESSEE Court:TCCA Judge: WADE First Paragraph: The pro se petitioner, William Lewis Howell, appeals the summary dismissal of his petition for post-conviction relief. The issue presented for review is whether the petition is barred by the statute of limitations. We affirm the dismissal pursuant to Rule 20, Tenn. Ct. Crim. App. http://www.tba.org/tba_files/TCCA/Howell_opn.WP6
STATE OF TENNESSEE VS. WILLIAM JASON McMAHAN, Court:TCCA Attorneys: For the Appellant: For the Appellee: J. Jeffrey Whitt John Knox Walkup 706 Walnut Street Attorney General of Tennessee Suite 902 and Knoxville, TN 37902 Ellen H. Pollack Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 Randall E. Nichols District Attorney General and Fred Bright Assistant District Attorney General City-County Building Knoxville, TN 37902 Judge: TIPTON First Paragraph: The defendant, William Jason McMahan, appeals as of right following his 1997 jury convictions in the Knox County Criminal Court for aggravated robbery, a Class B felony, criminally negligent homicide, a Class E felony, and theft of more than one thousand dollars but less than ten thousand dollars, a Class D felony. He received consecutive sentences of twelve years, two years and four years, respectively, to be served in the Department of Correction as a Range I, standard offender. The defendant presents the following issues for our review: (1) whether the evidence is sufficient to support the defendant's aggravated robbery conviction; (2) whether the defendant can be found guilty of both aggravated robbery and theft; (3) whether the trial court erred by refusing to allow the jury to rehear testimony upon request once deliberations had begun; and (4) whether the trial court erred in sentencing the defendant with regard to the weight given certain enhancement factors and to the imposition of consecutive sentencing. We conclude (1) that the evidence is sufficient to support the defendant's aggravated robbery conviction, (2) that the convictions for both aggravated robbery and theft violate double jeopardy principles, (3) that although the trial court should have allowed the jury to rehear the testimony, the error was harmless and (4) that the defendant was properly sentenced. http://www.tba.org/tba_files/TCCA/Mcmahanw_opn.WP6
DAVID LEE RICHARDS VS. STATE OF TENNESSEE Court:TCCA Judge: WADE First Paragraph: The pro se petitioner, David Lee Richards, has filed an application for permission to appeal the trial court's order denying his motion to reopen his petition for post-conviction relief. See Tenn. Code Ann. S 40-30-217. The state has responded in opposition to the motion. http://www.tba.org/tba_files/TCCA/Richards_opn.WP6
ZACHARY ROBINSON, alias CRUSADER VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Zachary Robinson, pro se John Knox Walkup Reg. No. 12404-074 Attorney General & Reporter Qtr. Cla 1-B 425 Fifth Avenue North P. O. Box 4000 Nashville, TN 37243-0493 Manchester, KY 40962-4000 Ellen H. Pollack Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Randall E. Nichols District Attorney General 400 Main Street Knoxville, TN 37901-1468 Judge: LAFFERTY First Paragraph: The petitioner, Zachary C. Robinson, alias Crusader, appeals as of right from the trial court's dismissal of his petition for writ of habeas corpus. After a review of the record, briefs of the parties, and appropriate law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Robinsnz_opn.WP6
STATE OF TENNESSEE VS. DION ANDRES RUSSELL Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: BURKETT C. McINTURFF (at trial) JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 132 Broad St. Kingsport, TN TODD R. KELLEY Assistant Attorney General ROBERT C. EDWARDS (on appeal) 425 Fifth Ave. N., 2d Floor Attorney at Law Nashville, TN 37243-0493 382 Emory Rd. Blaine, TN 37709 H. GREELEY WELLS, JR. District Attorney General GREGORY NEWMAN Asst. District Attorney General P.O. Box 526 Blountville, TN 37617-0526 Judge: WITT First Paragraph: The defendant, Dion Andres Russell, appeals from his convictions of resisting arrest, evading arrest and inciting to riot. He received his convictions at the conclusion of a jury trial in the Sullivan County Criminal Court. The trial court imposed consecutive sentences of eleven months, 29 days confinement in the county jail for inciting to riot, six months probation conditioned upon Community Corrections supervision for resisting arrest, and eleven months, 29 days probation conditioned upon Community Corrections supervision for evading arrest. In this direct appeal, the defendant challenges the trial court's denial of his attorney's motion to withdraw or for a continuance, the sufficiency of the convicting evidence, and the sentences imposed. After a review of the record, the briefs and the oral arguments of the parties, we affirm the judgment of the trial court, although we modify the terms of the sentence for inciting to riot. http://www.tba.org/tba_files/TCCA/Russelld_opn.WP6

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