Opinion Flash

October 30, 2002
Volume 8 — Number 192

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.

This Issue (IN THIS ORDER):
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
05 New Opinion(s) from the Tennessee Court of Appeals
05 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 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


TAMMY BOWMAN v. FLEETWOOD HOMES OF TENNESSEE INC., et al.

Court:TSC - Workers Comp Panel

Attorneys:

John R. Lewis, Nashville, Tennessee, for the appellants, Fleetwood
Homes of Tennessee Inc., and Kemper Insurance Companies.

B. Keith Williams, Lebanon, Tennessee, for the appellee, Tammy Bowman.

Judge: WEATHERFORD

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tennessee Code Annotated  S 50-6- 225(e)(3) for hearing and
reporting to the Supreme Court of findings of facts and conclusions of
law.  The employer appeals the judgment of the trial court awarding
the employee 5% permanent partial disability for a right shoulder
injury, even though the parties had stipulated prior to trial that
this injury was not at issue.  The employer further appeals the trial
court's ruling combining a 20% vocational disability rating to the
arm, which is a scheduled member, with the 5% anatomical impairment
rating for the shoulder, which is to the body as a whole, then
multiplying both by the 2.5 maximum pursuant to Tennessee Code
Annotated S 50-6-241(a)(1).  We hold that the trial court erred in
awarding permanent partial disability for the right shoulder because
both parties had stipulated that it was not at issue and because no
expert testimony supported a finding of permanency.  Accordingly, we
reverse the judgment of the trial court awarding workers' compensation
benefits based upon an injury to the employee's shoulder.

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

EXPRESS PERSONNEL SERVICES, INC. v. DONNA M. BELCHER

Court:TSC - Workers Comp Panel

Attorneys:   

Fred C. Statum, Nashville, Tennessee, for the appellant, Express
Personnel Services, Inc.

Andrew J. Blackwell, III, Madison, Tennessee, for the appellee, Donna
M. Belcher                       

Judge: LOSER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann.
S 50-6-225(e)(3) for hearing and reporting of findings of fact and
conclusions of law.  In this appeal, the employer contends that the
trial court improperly considered the claimant's criminal record, her
responsibility for five children, her lack of reliable transportation,
and her financial need in determining the claimant's vocational
disability rating.  As discussed below, the panel has concluded that
the judgment of the trial court should be affirmed.

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

ROBERT HALL v. DONAL CAMPBELL, JAMES A. DUKES, and LISA A. REYNOLDS

Court:TCA

Attorneys: 

Robert Hall, Nashville, Tennessee, appellant, pro se.

Arthur Crownover II, Nashville, for appellees, Donal Campbell, James
A. Dukes, and Lisa A. Reynolds.

Judge: LILLARD

First Paragraph:

This is a writ of certiorari case brought by a prisoner.  The
plaintiff, an inmate of the Tennessee Department of Correction, was
found guilty by the prison disciplinary board of committing the
offense of Conspiracy to Violate State Law.  He was sentenced to
punitive segregation, and thereafter placed in administrative
segregation.  The plaintiff prisoner petitioned for a writ of
certiorari.  The trial court granted the defendants' motion to
dismiss, finding that the facts failed to show that the disciplinary
board exceeded its jurisdiction, or acted illegally, arbitrarily, or
fraudulently.  We affirm.

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

JOHN J. HOOKER, v. PHIL BREDESEN

Court:TCA

Attorneys: 

John Jay Hooker, Nashville, Tennessee, pro se.

Robert E. Cooper and J. Brandon Miller, Nashville, Tennessee, for
Appellee.                         

Judge: FRANKS

First Paragraph:

Plaintiff accused defendant of violating Tennessee Constitution,
Article X, S3, at a political fund- raiser event by serving attendees
food and drink.  The Trial Judge dismissed the complaint for failure
to state a cause of action.  On appeal, we affirm.

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

DONALD FRANKLIN KING v. BETTY JUNE KING

Court:TCA

Attorneys:

Carthel L. Smith, Lexington, Tennessee, for appellant, Donald Franklin
King

James F. Butler and J. Brandon McWherter, Jackson, Tennessee, for
appellee, Betty June King.                       

Judge: LILLARD

First Paragraph:

This is an alimony case.  The parties were married for twenty-nine
years.  The wife is disabled and unable to work.  Upon divorce, the
husband was ordered to pay alimony in futuro until the wife reaches
sixty-two years of age.  On appeal, the husband argues that the trial
court improperly assessed the wife's living expenses, and that the
husband will not be able to afford the necessities of life if he is
required to fulfill his alimony obligation.  We affirm, finding that
the trial court did not abuse its discretion.

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

CAROLYN JOY MORRISON v. CHARLES ROY MORRISON

Court:TCA

Attorneys:  

Bradley J. Cordts, Memphis, Tennessee, for appellant Carolyn Joy
Morrison.

Linda F. Teems, Memphis, Tennessee, for appellee Charles Roy Morrison 
                      
Judge: LILLARD

First Paragraph:

This case involves the finality of a divorce decree.  The parties were
married in 1971 and divorced in 2001.  Under the divorce, the parties
received, as separate property, their respective "bank, retirement and
investment accounts" listed in each spouse's name.  The wife now
asserts that the husband's military pension was not provided for in
the divorce decree, that the divorce decree is therefore not final,
and that the trial court should equitably divide the funds the husband
receives from his military pension.  The trial court found that the
pension was part of the "retirement" funds allocated as separate
property.  On this basis, it denied the wife's Rule 59 motion to
alter, amend, or vacate the judgment.  The wife appeals.  We affirm,
finding that the parties' final divorce decree contemplated that the
parties would retain their respective retirement benefits, including
the military pension.

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

IN THE MATTER OF THE ESTATE OF JAMES T. SANDERSON, DECEASED

Court:TCA

Attorneys:

Charles M. Cary, Bolivar, Tennessee, for the appellant, Shirley Diane
Sanderson.

William C. Bell, Jr., Jackson, Tennessee, for the appellee, Joe B.
Cole, Administrator.                       

Judge: FARMER

First Paragraph:

This case concerns the administration of an estate.  The decedent's
widow appeals the trial court's judgment claiming that it was error to
deny her claim for an elective share of the estate.  Appellant also
alleges error in the finding that the administrator had not caused the
estate to suffer monetary loss as a result of actions taken by him in
his role as administrator.  We affirm.

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

STATE OF TENNESSEE v. RONALD DOTSON

Court:TCCA

Attorneys:

A C Wharton, Jr., District Public Defender; W. Mark Ward and Russell
White, Assistant Public Defenders, for the appellant, Ronald Dotson.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General;  William L. Gibbons, District Attorney
General; and Jennifer S. Nichols, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: WILLIAMS

First Paragraph:

The defendant appeals his sentence of life imprisonment without parole
as a repeat violent offender because he was not tried within 180 days
of arraignment.  Because the defendant did not prove that he suffered
prejudice from the delay in bringing his case to trial, we affirm the
decision of the trial court.

http://www.tba.org/tba_files/TCCA/dotsonr1.wpd

STATE OF TENNESSEE v. DIANNA HELTON HORD

Court:TCCA

Attorneys:

George H. Waters, Assistant Public Defender, Maryville, Tennessee, and
Julie A. Rice, Knoxville, Tennessee, for the appellant, Dianna Helton
Hord.

Paul G. Summers, Attorney General and Reporter; Elizabeth G. Marney,
Assistant Attorney General; Mike Flynn, District Attorney General; and
William Reed,  Assistant District Attorney General, for the appellee,
State of Tennessee.                        

Judge: WELLES

First Paragraph:

The Defendant, Dianna Helton Hord, pled guilty to driving under the
influence and driving on a revoked license.  As part of her plea
agreement, she expressly reserved with the consent of the trial court
and the State the right to appeal a certified question of law pursuant
to Tennessee Rule of Criminal Procedure 37(b)(2)(i).  The certified
question of law stems from the trial court's denial of the Defendant's
motion to suppress.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. TONI YVONNE HUNT

Court:TCCA

Attorneys:

Jeff Mueller, Jackson, Tennessee (at trial), and Marcus M. Reaves,
Denmark, Tennessee (on appeal), for the appellant, Toni Yvonne Hunt.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; James G. (Jerry) Woodall, District
Attorney General; and Shaun H. Brown, Assistant District Attorney
General, for the appellee, State of Tennessee.                        

Judge: WILLIAMS

First Paragraph:

The defendant appeals her sentence of confinement after pleading
guilty to theft under $500.00, a Class A misdemeanor, in violation of 
Tennessee Code Annotated section 39-14-103.  The trial court sentenced
the defendant to 11 months, 29 days at 75% release eligibility, with
150 days of  shock incarceration.  The defendant argues that the trial
court erred in not granting her full probation.  However, the
defendant did not meet her burden necessary to prove the impropriety
of her sentence.  Our supreme court acknowledges that trial courts
have more flexibility in misdemeanor sentencing than in felony
sentencing. Given the defendant's prior criminal history and the
flexibility granted to trial courts in misdemeanor sentencing, the
judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. JAMES M. POWERS
(Corrected opinion)

Court:TCCA

Attorneys:

Charles Herman, Assistant Public Defender, Jacksboro, Tennessee, and
Steve McEwen, Mountain City, Tennessee, for the appellant, James M.
Powers.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; William Paul Phillips, District
Attorney General; and Michael O. Ripley, Assistant District Attorney
General, for the appellee, State of Tennessee.                   

Judge: WELLES

First Paragraph:

The Defendant, James M. Powers, appeals as of right from his
convictions by a jury of four counts of rape of a child, a Class A
felony.  After a sentencing hearing, the trial court imposed a
sentence of twenty years on each of the four counts and ordered that
three of the sentences run consecutively, for an effective sentence of
sixty years to be served in the Tennessee Department of Correction. 
The Defendant argues two issues on appeal: (1) that the evidence
presented at trial was insufficient to support his four convictions of
child rape, and (2) that the trial court erred by imposing consecutive
sentences.  We affirm the Defendant's convictions.  We reverse the
trial court's order that the sentences be served consecutively and
remand for the entry of an order reflecting concurrent sentences.

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

ANTONIO YOUNG v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Keith A. Black, Chattanooga, Tennessee, for the Appellant, Antonio
Young.

Paul G. Summers, Attorney General & Reporter; Christine M. Lapps,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Rodney C. Strong, Assistant District Attorney General,
for the Appellee, State of Tennessee.                        

Judge: WITT

First Paragraph:

Antonio Young appeals the Hamilton County Criminal Court's denial of
his petition for post- conviction relief.  The lower court found his
allegations of ineffective assistance of counsel unsupported by the
evidence and denied relief.  Because we are unpersuaded of error, we
affirm.

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

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