Opinion Flash

November 12, 2002
Volume 8 — Number 199

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
07 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Court of Appeals
06 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


GEORGE THOMAS ARGO v. BRENTWOOD SERVICES ADMINISTRATORS, INC., et al.

Court:TSC - Workers Comp Panel

Attorneys:

Stacey Billingsley Cason, Nashville, Tennessee, for the appellant,
Local Government Workers' Compensation Fund

Barry H. Medley, McMinnville, Tennessee, for the appellee, George
Thomas Argo                         

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. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  In this
appeal, the employer insists (1) the trial court erred in failing to
dismiss the claim based on the "last injurious injury doctrine," (2)
the award of permanent partial disability benefits based on 37.5
percent to the body as a whole is excessive, and (3) the trial court
erred in commuting the award to a lump sum.  The employee insists he
is entitled to receive benefits from one insurer or the other.  As
discussed below, the panel has concluded the judgment should be
affirmed.

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

CATHY JUDKINS v. FINDLAY INDUSTRIES/GARDNER MANUFACTURING DIVISION

Court:TSC - Workers Comp Panel

Attorneys:

Bruce Timothy Pirtle and Mary M. Little, McMinnville, Tennessee, for
the appellant, Findlay Industries/Gardner Manufacturing Division.

Barry H. Medley, McMinnville, Tennessee for the appellee, Cathy
Judkins.

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.  This
complaint was non-specific as to the occurrence of a job-related
accident and any compensable injuries.  The essential thrust of the
appeal by the employer is directed to the issue of whether the
purported failure of the employee to reveal pre-existing medical
conditions to an independent medical examiner nullifies his testimony.

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

CATHY MCCARSON v. AQUA GLASS CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:    

Charles L. Hicks, Camden, Tennessee, for the appellant, Cathy
McCarson.

John Lee Williams, Waverly, Tennessee, for the appellee, Aqua Glass
Corporation.                      

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.  The
plaintiff attributed a host of complaints to the rigors of her
employment as gradually occurring or occupationally based.  The
medical proof was varied and indecisive leading the trial judge to
conclude that she failed to carry the burden of proof.  We affirm.

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

LENDA T. MCCLAIN v. HOLIDAY RETIREMENT CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:

William L. Underhill and Michael L. Underhill, Madison, Tennessee, for
the appellant, Lenda T. McClain.

Richard C. Mangelsdorf, Jr., and Mark W. Honeycutt, II, Nashville,
Tennessee, for the appellee, Holiday Retirement Corporation.                        

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.  The
plaintiff appeals the judgment dismissing her suit for benefits she
attributes to an injury sustained during the course and scope of her
employment.  Following the presentation of her evidence, the court
granted the defendant's Rule 41.02 Motion for Involuntary Dismissal
upon a finding that she failed to carry her burden of proving an
accidental injury arising out of employment sufficient to establish a
prima facie case of entitlement to benefits.  The dispositive issue on
appeal is whether the involuntary dismissal was appropriately granted.

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

JIMMY RHODES V. CITY OF MONTEAGLE

Court:TSC - Workers Comp Panel

Attorneys:     

Paul D. Cross, Monteagle, TN for the appellant, Jimmy Rhodes

David F. Hensley, Chattanooga, TN for the appellee, City of Monteagle                     

Judge: GRAY

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 found the suit barred by the statute of limitations and granted
summary judgment in favor of the City of Monteagle.  We affirm.

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

ROYAL & SUNALLIANCE v. JOHN H. SEAY

Court:TSC - Workers Comp Panel

Attorneys:    

Diana C. Benson and Larry G. Trail, Murfreesboro, Tennessee, for the
appellant, Royal & Sunalliance.

William J. Butler, Lafayette, Tennessee, for the appellee, John H.
Seay.                      

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.  The trial
court found that the employee sustained an 80 percent vocational
disability to his left leg.  The employer concedes that Mr. Seay has a
malfunctioning leg, but that the award is excessive.  We affirm the
judgment.

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

HOWARD R. SULLINS, JR. v. WINN'S PRECISION, INC., et al.

Court:TSC - Workers Comp Panel

Attorneys:

Terry Lee Hill, Nashville, Tennessee, for the appellants, Wynn's
Precision, Inc. and ITT Hartford Specialty Risk Service.

William Edward Farmer, Lebanon, Tennessee, for the appellee, Howard R.
Sullins, Jr.                  

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.  This is a
carpal tunnel syndrome complaint involving the plaintiff's right arm. 
He had previously suffered a ruptured biceps tendon involving his
right arm, and returned to work after successful surgery.  At the time
of trial he was still employed and had not been treated for carpal
tunnel syndrome for eighteen months.  The trial judge found that the
plaintiff had a vocational disability of 50 percent to his right arm. 
We affirm.

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

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_1112.wpd

ROWANA BOBO AND KEVIN BOBO v. LEANTHER G. WILLETT

Court:TCA

Attorneys:  

R. Layne Holley, Memphis, TN, for Appellant

David Hill, Corey Leathers, Memphis, TN, for Appellees                        

Judge: HIGHERS

First Paragraph:

This case involves bodily injuries arising from a motor vehicle
accident that occurred on October 19, 1998 in Memphis, Tennessee.  The
trial court returned a verdict for the Plaintiffs.  Plaintiffs then
filed a motion for new trial or alternatively for an additur.  The
trial court granted Plaintiff's motion for new trial and this appeal
ensued.

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

STATE OF TENNESSEE v. ERIC BERNARD CHISM

Court:TCCA

Attorneys:

C. Mark Donahoe, Jackson, Tennessee (on appeal); and Scott G. Kirk,
Jackson, Tennessee (at trial), for the Appellant, Eric Bernard Chism.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; James G. Woodall, District Attorney
General; and Shaun A. Brown, Assistant District Attorney General, for
the Appellee, State of Tennessee.                       

Judge: WITT

First Paragraph:

A Madison County jury convicted the defendant, Eric Bernard Chism, of
first-degree murder, especially aggravated kidnapping, aggravated
rape, and aggravated sexual battery in connection with the abduction
and homicide of Beatrice Sue Westbrooks.  The defendant received an
effective sentence of life plus 25 years.  On appeal, the defendant
argues: (1) his right to a speedy trial was violated; (2) the trial
court erroneously severed his case from that of his co-defendant; (3)
the evidence is insufficient to support his convictions; (4) the trial
court erroneously admitted unfairly prejudicial and inflammatory
photographs; (5) the trial court improperly ruled that his prior
narcotics conviction could be used for impeachment should he elect to
testify; (6) a new trial should have been granted based on newly
discovered evidence, but, at any rate, the hearing on the motion for
new trial should have been continued until the results of additional
forensic testing were available; and (7) the trial court erred in
imposing consecutive sentencing.  After a thorough review of the
record, we affirm the judgments and sentencing of the trial court.

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

STATE OF TENNESSEE v. EDWARD COLEMAN AND SEAN WILLIAMS

Court:TCCA

Attorneys:

C. Anne Tipton, Memphis, Tennessee, for the appellant, Edward Coleman.

Mark Mesler (on appeal) and Howard Manis (at trial), Memphis,
Tennessee, for the appellant, Sean Williams.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Stephen P. Jones and Amy P. Weirich, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

A Shelby County jury convicted the defendants, Edward Coleman and Sean
Williams, of premeditated murder, felony murder, especially aggravated
kidnapping, and aggravated kidnapping.  The trial court merged the two
murder convictions and sentenced the defendants to life.  The trial
court merged the kidnapping convictions and sentenced Coleman and
Williams to twenty-two years and eighteen years, respectively, to be
served consecutively to the life sentence.  In this appeal of right,
both defendants raise the following issues: (1) whether the evidence
was sufficient to support the convictions; (2) whether the trial court
erred in denying the defendants' motion to sever; (3) whether the
state failed to provide the defendants with timely discovery; and (4)
whether the trial court erred in permitting testimony that Williams
shot a witness in this case on a prior occasion.  In addition, Coleman
raises the following issues: (1) whether the trial court erred in
permitting testimony regarding the loss of Coleman's leg, allegedly
caused by the victim; and (2) whether the state knowingly presented
perjured and conflicting testimony.  Williams also raises the
following issues: (1) whether the trial court erred in admitting
photographs of the victim's body; and (2) whether the state during
closing argument violated the Bruton rule by referring to Coleman's
incriminating statement regarding Williams.  After reviewing the
record, we affirm the convictions for premeditated first degree murder
but reverse and dismiss the other charges based upon insufficiency of
the evidence.

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

STATE OF TENNESSEE v. ANTONIUS HARRIS

Court:TCCA

Attorneys:

Sam J. Watridge, Humboldt, Tennessee, for the appellant, Antonius
Harris.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Garry G. Brown, District Attorney General;
and Edward L. Hardister, Assistant District Attorney General, for the
appellee, State of Tennessee.                     

Judge: RILEY

First Paragraph:

A Gibson County jury convicted the defendant of two counts of
especially aggravated kidnapping, one count of  attempted second
degree murder, two counts of aggravated assault, and one count of
felony reckless endangerment.  The trial court ordered him to serve an
effective sentence of thirty- one years.  On appeal, the defendant
argues: (1) the trial court should have dismissed the superseding
indictment; (2) there was insufficient evidence to support all of his
convictions except for one aggravated assault conviction; (3) the
trial court should have instructed the jury on self-defense; (4) the
trial court should have instructed the jury on facilitation on all
charged offenses and attempted voluntary manslaughter as a
lesser-included offense of attempted first degree murder; and (5) his
sentences were excessive.  We set aside one sentence for aggravated
assault because it was merged into the conviction for attempted second
degree murder, but otherwise affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. ANTONIUS HARRIS

Court:TCCA

TIPTON CONCURRING

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

JERRY JAMES HAYES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:   

Billy R. Roe, Jr., Assistant District Public Defender, Camden,
Tennessee, for the Appellant, Jerry James Hayes.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Angele M. Gregory, Assistant Attorney General;
Robert Gus Radford, District Attorney General; and Eleanor Cahill,
Assistant District Attorney General, for the Appellee, State of
Tennessee.                       

Judge: HAYES

First Paragraph:

The Appellant, Jerry James Hayes, appeals as of right from the
judgment of the Carroll County Circuit Court denying his petition for
post-conviction relief.  On appeal, the Appellant argues that he
received ineffective assistance of counsel.  After review of the
record, dismissal of the petition is affirmed.

http://www.tba.org/tba_files/TCCA/hayesjs1.wpd

STATE OF TENNESSEE v. CARLOS HAYNES

Court:TCCA

Attorneys:

George Morton Googe, District Public Defender and David Chrichton,
Assistant Public Defender, Jackson, Tennessee, for the appellant,
Carlos Haynes.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Jerry Woodall, District Attorney General;
and Angela Scott, Assistant District Attorney General, for the
appellee, State of Tennessee.                         

Judge: WELLES

First Paragraph:

The Defendant, Carlos Haynes, pled guilty to possession of marijuana
with the intent to sell, a Class E felony, and possession of drug
paraphernalia, a Class A misdemeanor.  As part of his plea agreement,
he 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 concerns the validity of a search warrant.  We affirm
the judgment of the trial court.

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

STATE OF TENNESSEE v. JOHNNY OWENS and SARAH OWENS

Court:TCCA

Attorneys:

Ramsdale O'DeNeal, Jr. (for Johnny Owens), Jackson, Tennessee; and
Marcus M. Reaves (for Sarah Owens), Jackson, Tennessee, for the
Appellants.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; Garry G. Brown, District Attorney General;
and Clayburn L. Peeples, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendants, Johnny Owens and Sarah Owens, who are husband and
wife, were convicted of aggravated child abuse by a Haywood County
Circuit Court jury.  Johnny Owens was convicted on one count only, and
Sarah Owens was convicted on five counts.  Because Johnny Owens'
motion for a new trial raised only issues of the sufficiency of the
evidence, we review only that issue in his appeal.  Sarah Owens raises
evidentiary issues and claims that the trial court erred in failing to
instruct the jury on the "missing witness" rule, in conditioning the
defendants' release from custody during trial upon Ms. Owens'
withdrawal of her motion to sequester the jury, and in imposing an
excessive sentence. We affirm all convictions and sentences; however,
we order Sarah Owens' sentences to be served concurrently.

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

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