Opinion Flash

March 11, 2002
Volume 8 — Number 044

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.

This Issue (IN THIS ORDER):
 
03 New Opinion(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
03 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
 

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


CORRECTED OPINION:

STATE OF TENNESSEE v. WALTER LEE ALLEN

Court:TSC

Attorneys:   

Edward C. Miller and Helen Susanne Bales, Dandridge, Tennessee, for
the appellant, Walter Lee Allen.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Elizabeth T. Ryan, Assistant Attorney General; Al
C. Schmutzer, Jr., District Attorney General; and James L. Gass,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: HOLDER

First Paragraph:

The defendant, Walter Lee Allen, was indicted for aggravated robbery. 
He was convicted of the lesser-included offense of robbery and
received a ten-year sentence.  The Court of Criminal Appeals affirmed
the conviction and sentence.  We granted permission to appeal to
review two issues:  (1) whether a variance existed between the
indictment alleging robbery "by violence" and the proof showing
robbery by pointing a gun at the victim; and (2) whether the trial
court erred by failing to instruct the jury on facilitation of robbery
as a lesser-included offense.  We conclude that no variance existed
because pointing a deadly weapon at the victim constitutes robbery "by
violence."  We further conclude that the failure to instruct on
facilitation of robbery was reversible error under the circumstances
of this case.  Accordingly, we reverse the judgment of the Court of
Criminal Appeals and remand the case for a new trial.

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

ERNEST J. FRYE v. BLUE RIDGE NEUROSCIENCE CENTER, P.C., et al.

Court:TSC

Attorneys:

Olen G. Haynes, Johnson City, Tennessee, and Robert P. Starnes,
Norton, Virginia, for the appellant, Ernest J. Frye.

Jimmie C. Miller and Nancy C. Eastridge, Kingsport, Tennessee, for the
appellee Blue Ridge Neuroscience Center, P.C., and William T. Gamble
and Russell W. Adkins, Kingsport, Tennessee, for the appellee, Gregory
N. Corradino, M.D.                         

Judge: DROWOTA

First Paragraph:

We granted this appeal to determine whether process issued upon a
second complaint satisfies Rule 3 of the Tennessee Rules of Civil
Procedure when the plaintiff failed to serve process on the original
complaint.  After careful consideration of the Tennessee Rules of
Civil Procedure and applicable case law, we hold that a plaintiff may
rely upon the initial filing date to satisfy a statute of limitations
if that plaintiff, having failed to issue or serve process within
thirty days of filing the complaint, continues the action by issuing
new process on the original complaint as required by Rule 3.  In
addition, a plaintiff may request a voluntary dismissal within the
one-year time period under Rule 3, without having served process, and
still rely on the original date of commencement to satisfy a statute
of limitations if the plaintiff serves a copy of the Notice of
Voluntary Dismissal and the complaint on the defendant as required by
Rule 41.01.  Because the plaintiff in this case failed to comply with
either Rule 3 or Rule 41.01, the plaintiff may not rely on the filing
date of the original complaint for purposes of satisfying the
applicable one-year statute of limitations.  Accordingly, the judgment
of the Court of Appeals granting the defendants summary judgment is
affirmed.

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

STATE OF TENNESSEE v. SEAN ERIC IMFELD

Court:TSC

Attorneys:

Mark E. Stephens, District Public Defender, and Paula R. Voss and
Robert C. Edwards, Assistant Public Defenders, Knoxville, Tennessee,
for the appellant, Sean Eric Imfeld.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Patricia Cristil,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: ANDERSON

First Paragraph:

The defendant entered guilty pleas to five counts of aggravated
assault and was sentenced to three years for each conviction.  The
trial court ordered three of the sentences for aggravated assault to
be served consecutively, for an effective sentence of nine years.  The
Court of Criminal Appeals affirmed.

We granted permission to appeal to address three issues: (1) whether
the trial court properly enhanced the defendant's sentences for
aggravated assault on the basis that the offenses involved more than
one victim, Tenn. Code Ann. S 40-35-114(3) (1997 & Supp. 2001); (2)
whether the trial court properly enhanced the defendant's sentences on
the basis that the crimes were committed under circumstances where the
potential for bodily injury to a victim was great, id. S
40-35-114(16); and (3) whether the trial court properly imposed
consecutive sentences on the basis that the defendant was a dangerous
offender, id. S 40-35-115(b)(4).

After reviewing the record and applicable authority, we conclude that
the lower courts erred in applying the "multiple victims" and
"potential bodily injury to a victim" enhancement factors, see id. SS
40-35-114(3) and -114(16), but that a reduction in the length of the
sentences is not warranted because several other valid enhancement
factors were supported by the record.  We also conclude that the trial
court's imposition of consecutive sentences on the basis that the
defendant was a dangerous offender was supported by the record.  See
id. S 40-35-115(b)(4).  We therefore affirm the judgment of the Court
of Criminal Appeals.

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

MELINDA F. PEELER v. KIMBERLY-CLARK CORPORATION, et al.

Court:TSC - Workers Comp Panel

Attorneys:

James H. Hickman, III, of Knoxville, Tennessee, for Appellant, Melinda
F. Peeler.

Robert R. Davies, of Knoxville, Tennessee, for Appellees,
Kimberly-Clark Corporation and Sentry Insurance Company.                       

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 trial
court dismissed the complaint finding proper notice of injury had not
been given and that a reasonable excuse did not exist for the failure
to give notice.  The employee appealed insisting she was not aware
that she had a work-related injury.  Judgment of the trial court is
affirmed.

http://www.tba.org/tba_files/TSC_WCP/peeler.wpd

TIMOTHY WOODY, v. NORTH BROTHERS, INC.

Court:TSC - Workers Comp Panel

Attorneys:  

James T. Shea, IV, Knoxville, for the appellant, North Brothers, Inc.

Jeffrey A. Miller, Cleveland, for the appellee, Timothy Woody                        

Judge: THOMAS

First Paragraph:

The first issue presented by this appeal is whether there is evidence
to support a finding of permanent impairment of pulmonary function as
a result of the migration to the lung of an embolus from a clot
created as a result of an injury to the plaintiff's lower extremity.
If there is such evidence, the next issue is whether there can be a
disability rating to the body as a whole where there is an injury to a
scheduled member. After a close review of the record and consideration
of the arguments of counsel, we believe that the evidence supports
only a finding of a possible future injury to the lung from another
embolus from the clot, rather than a present permanent injury.
Accordingly, we  reverse and remand for further findings. Because of
the conclusion on the first issue, we do not reach the second.

http://www.tba.org/tba_files/TSC_WCP/woody.wpd

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0311.wpd

WILLIAM ALLEN v. DONAL CAMPBELL, et al.

Court:TCA

Attorneys:

William Allen, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, Pamela S. Lorch, Assistant Attorney General,
Nashville, Tennessee, for the appellees, Donal Campbell, et al.

Judge: COTTRELL

First Paragraph:

Petitioner, a state inmate, filed the underlying pro se declaratory
judgment action pursuant to the Uniform Administrative Procedures Act
to seek review of the Tennessee Department of Correction's refusal to
answer a petition for a declaratory order. Petitioner requested a
declaratory order to determine his entitlement to both good conduct
sentence credits and good and honor time credits.  The trial court
granted the Department's motion to dismiss for failure to state a
claim holding that petitioner was not entitled to duplicate sentence
credits.  For the following reasons, we affirm the decision of the
trial court.

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

SUSAN J. HICKS v. CRESCENT RESOURCES, INC.

Court:TCA

Attorneys:

Thomas V. White, Jude A. White, Nashville, Tennessee, for Appellant,
Crescent Resources, Inc.

Matthew J. Sweeney, Nancy A. Vincent, and April Y. Berman, Nashville,
Tennessee, for Appellee, Susan J. Hicks.                        

Judge: FRANKS

First Paragraph:

Plaintiff was granted summary judgment for commissions due and owing
from defendant.  On appeal, we vacate and remand.

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

BARBARA A. WILLOUGHBY, et al. v. MONTGOMERY ELEVATOR CO.

Court:TCA

Attorneys:

David H. Dunaway, LaFollette, Tennessee, for the Appellant Barbara A.
Willoughby.

R. Kim Burnette, Knoxville, Tennessee, for the Appellee Montgomery
Elevator Company.

Judge: SWINEY

First Paragraph:

Barbara Willoughby ("Plaintiff") was injured exiting an elevator at
her place of employment.  Plaintiff sued Montgomery Elevator Company
("Defendant") who had a contract with the Department of Energy ("DOE")
to service and repair the elevator.  The dispositive issue on appeal
is whether Defendant is an owner and operator of the elevator and,
therefore, should be held to the higher standard of care of a common
carrier.  The Trial Court determined that the higher standard of care
was not applicable and instructed the jury only with regard to
ordinary negligence.  After a jury verdict was rendered in favor of
Defendant, Plaintiff appealed claiming the jury should have been
instructed on the higher standard of care.  We affirm.

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

STATE OF TENNESSEE v. DAVID K. BROWNE

Court:TCCA

Attorneys:

Leslie Hale, Blountville, Tennessee; Richard Tate, Blountville,
Tennessee; attorneys at trial for the appellant, David K. Browne.  Pro
Se on appeal.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Peter M. Coughlan, Assistant Attorney
General;  H. Greeley Wells, Jr., District Attorney General; Barry
Staubus, Assistant District Attorney General; for the appellee, State
of Tennessee.                  

Judge: WEDEMEYER

First Paragraph:

The Defendant, David Kirk Browne, was indicted on one count of public
indecency.  The Defendant sought pretrial diversion, which was denied
by the State.  Following several continuances, the trial court
conducted a hearing on the Defendant's petition for writ of
certiorari.  At the Defendant's request, the trial judge recused
herself from the case.  The case was transferred to Judge Jerry Beck. 
 Judge Beck found that the Assistant District Attorney did not abuse
his discretion in denying pretrial diversion.  The Defendant now
appeals, alleging numerous defects in the proceedings which culminated
in his conviction.  After a review of the evidence, we affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/brownedk.wpd

STATE OF TENNESSEE v. CHESTER LEE JENKINS

Court:TCCA

Attorneys:

Raymond Mack Garner, District Public Defender; George H. Waters,
Assistant District Public Defender; and Stacey D. Nordquist, Assistant
District Public Defender, for the appellant/appellee, Chester Lee
Jenkins.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Michael L. Flynn, District Attorney
General; Kirk E. Andrews, Assistant District Attorney General; and
Edward P. Bailey, Jr., Assistant District Attorney General, for the
appellee/appellant, State of Tennessee.

Judge: GLENN

First Paragraph:

This is a Rule 9, Tennessee Rules of Appellate Procedure,
interlocutory appeal of the trial court's order sustaining in part and
denying in part the defendant's motion to suppress his statement to
police.  The defendant, who is totally deaf, is charged with first
degree murder and aggravated arson.  On the morning after the
residential fire that claimed the victim's life, a deputy sheriff
entered the defendant's home, tapped him on the shoulder to awaken
him, and asked, via gestures and a written note, that the defendant
accompany him to the sheriff's department for questioning. 
Investigators at the department interviewed the defendant and took his
statement through an interpreter of American Sign Language.  The
defendant argued that the statement should be suppressed on two
grounds:  (1) that it was the fruit of an unlawful seizure, in
violation of his Fourth Amendment right to be free from unreasonable
search and seizure; and  (2) that it was taken without adequate
Miranda warnings, in violation of his Fifth Amendment right to
counsel.  Finding that the defendant voluntarily accompanied the
deputy to the sheriff's department, but that he was in custody at the
department and that the State failed to prove that he had been given
an adequate Miranda warning, the trial court denied the motion to
suppress on Fourth Amendment grounds, but granted it on Fifth
Amendment grounds.  The State appeals that portion of the trial
court's order sustaining the motion on Fifth Amendment grounds, and
the defendant appeals that portion of the order denying the motion on
Fourth Amendment grounds.  After a thorough review of the record and
applicable law, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/jenkinschesterl.wpd

Tennessee Code Annotated S 8-27-303; Use of state funds received by
local education agency that provides "equal or superior" insurance plan

Date: March 4, 2002

Opinion Number:  02-025                        

http://www.tba.org/tba_files/AG/OP25.pdf

Excess Insurance under the Insurance Guaranty Association Laws

Date: March 7, 2002

Opinion Number: 02-026                         

http://www.tba.org/tba_files/AG/OP26.pdf

Constitutionality of Tenn. Code Ann. S 36-1-142

Date: March 7, 2002

Opinion Number: 02-027                         

http://www.tba.org/tba_files/AG/OP27.pdf

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