Opinion Flash

October 13, 2003
Volume 9 — Number 186

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
03 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
09 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


KASEY DUNN-LINDSEY v. WAL-MART STORES, INC., D/B/A SAM'S WHOLESALE
CLUB, ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Jay L. Johnson, Allen, Kopet & Associates, Jackson, Tennessee, for the
appellants Wal-Mart Stores, Inc. and Insurance Company of the State of
Pennsylvania

Keith M. Alexander, Taylor, Jones, Alexander & Sorrell, Southaven,
Mississippi, for the appellee, Kasey Dunn-Lindsey

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 and its insurer insist the trial court erred in
assessing a bad faith penalty, awarding  attorney's fees and costs and
ordering medical expenses paid directly to the injured employee.  As
discussed below, the panel has concluded the judgment should be
affirmed as to the bad faith penalty and award of fees and costs, and
remanded to the trial court for further consideration.

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

DERREK HARPER v. GULF INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:                          
 
Carla E. Ryan, Memphis, Tennessee, for the appellant, Derrek Harper

William C. Sessions, Shuttleworth, Williams, Harper, Waring & Derrick,
Memphis, Tennessee, for the appellee, Gulf Insurance Company

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 injured employee insists the award of permanent partial
disability benefits, limited to the medical impairment rating offered
by the treating physician, is inadequate and that the trial court
erred in failing to award temporary total disability and future
medical benefits.  As discussed below, the panel has concluded the
judgment should be modified by increasing the award of permanent
partial disability benefits to one based on all relevant factors
established by the proof and by including temporary total and future
medical benefits.

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

KATHERINE ELAINE SONS v. ZURICH AMERICAN GROUP

Court:TSC - Workers Comp Panel

Attorneys:                          

Joseph H. Crabtree, Jr., Stewart & Wilkinson, Memphis, Tennessee, for
the appellant, Katherine Elaine Sons

Ronald L. Harper and R. Scott Vincent, Memphis, Tennessee, for the
appellee, Zurich American Group

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 employee insists the trial court erred in its application
of the successive injury rule and by applying the caps contained in
Tenn. Code Ann. S 50-6-241(a) to the medical impairment resulting only
from her most recent injury.  The employer's insurer insists the
evidence preponderates against the trial court's finding that the
employee is permanently disabled to any extent.  As discussed below,
the panel concludes the successive injury rule is inapplicable and the
extent of the employee's permanent disability must be determined in
accordance with established rules relating to pre-existing conditions.

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

SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_1013.wpd

STATE OF TENNESSEE v. TRAVIS BRONSON, a/k/a TERRY CRUSENBERRY

Court:TCCA

Attorneys:                          

Julie A. Rice, Contract Appellate Defender (on appeal); Stephen M.
Wallace, District Public Defender; and Leslie S. Hale, Assistant
Public Defender (at trial), for the appellant, Travis Bronson, a/k/a
Terry Crusenberry.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Lewis Combs, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant pled guilty to theft under $500 and was sentenced to
eleven months, twenty-nine days in the county jail at zero percent
work release eligibility, to be served consecutively to a two-year
sentence in a separate case.  On appeal, the defendant argues that the
trial court erred in denying him probation.  Finding no error, we
affirm the judgment of the trial court.

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

LEE ROY GASS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Douglas L. Payne, Greenville, Tennessee, for the appellant, Lee Roy
Gass.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General;  C. Berkeley Bell, Jr., District Attorney
General; and James Goodwin, Assistant Attorney General, for the
appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner appeals from the post-conviction court's denial of his
petition for post-conviction relief.  He claims he received
ineffective assistance of counsel at trial.  After careful review, we
affirm the post-conviction court's denial of relief.

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

STATE OF TENNESSEE v. WOODROW GIFFORD, JR. and CARL MONK

Court:TCCA

Attorneys:                          

Larry S. Weddington, Bristol, Tennessee, for the appellant, Woodrow
Gifford, Jr., J. Wesley Edens, Bristol, Tennessee, for the appellant,
Carl Monk.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Thomas E. Williams, III, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and William
Harper, Assistant District Attorney General, for the appellee, State
of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Sullivan County grand jury indicted Defendant Woodrow Gifford, Jr.
for possession of over 0.5 grams of cocaine, a Schedule II drug, and
possession of drug paraphernalia, a Class A misdemeanor.  The Sullivan
County grand jury indicted Defendant Carl Monk for possession of over
26 grams of cocaine, a Schedule II drug, and possession of drug
paraphernalia, a Class A misdemeanor.  Following the trial court's
denial of the Defendants Motions to Suppress evidence, the Defendants
both pled nolo contendere to possession with intent to sell drugs,
pursuant to Tennessee Code Annotated Section 39-17-417, and possession
of drug paraphernalia, pursuant to Tennessee Code Annotated Section
39-17-425.  Both Defendants reserved the right to appeal a certified
question of law regarding the trial court's denial of their Motions to
Suppress.  Finding no error in the trial court's judgment, we affirm.

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

STATE OF TENNESSEE v. JEREMY CHRISTOPHER HWANG

Court:TCCA

Attorneys:                          

Daniel J. Ripper, Chattanooga, Tennessee, for the appellant, Jeremy
Christopher Hwang.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
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: GLENN

First Paragraph:

The defendant appeals the trial court's revocation of his probation,
arguing that his due process rights were violated because (1) the
trial court allowed the State to amend the revocation petition to
include as additional grounds his subsequent convictions for theft and
criminal impersonation, without providing him prior written notice;
and (2) the trial court failed to issue adequate findings of fact in
support of its decision.  Following our review, we affirm the judgment
of the trial court.

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

ANDREW LEE MOATS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Andrew
Lee Moats.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Renee W. Turner, Assistant Attorney General;
Randall Eugene Nichols, District Attorney General; and Zane Scarlett,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Knox County jury convicted the Petitioner of first degree murder,
and the trial court imposed a life sentence in the Tennessee
Department of Correction.  On direct appeal, this Court affirmed the
conviction, and the Tennessee Supreme Court denied the Defendant's
application for permission to appeal.  The Petitioner then sought
post-conviction relief, alleging that he was denied effective
assistance of counsel.  Following a hearing, the post-conviction court
dismissed the petition, and this appeal ensued.  We affirm the trial
court's dismissal of the petition.

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

STATE OF TENNESSEE v. SIDNEY JOSEPH OGLE

Court:TCCA

Attorneys:                          

Mark E. Stephens, District Public Defender, and J. Steven House,
Assistant Public Defender, Knoxville, Tennessee, for the appellant,
Sidney Joseph Ogle.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Leland L. Price, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Sidney Joseph Ogle, pled guilty in the Knox County
Criminal Court to aggravated assault.  The trial court sentenced the
appellant as a Range I standard offender to three years incarceration
in the Tennessee Department of Correction.  The trial court denied the
appellant's request for probation and the appellant timely appealed. 
Upon review of the record and the parties' briefs, we affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. TERRY SCOTT

Court:TCCA

Attorneys:                          

James W. Brooks, Jr., Wartburg, Tennessee, for the appellant, Terry
Scott.

Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; Scott McCluen, District Attorney General;
and Frank Harvey, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Terry Scott, was convicted of driving under the
influence.  See Tenn. Code Ann. S 55-10-401.  The trial court ordered
a sentence of 11 months, 29 days, with all but four days suspended. 
In this appeal of right, the defendant contends that the state failed
to prove a proper chain of custody for his blood samples and that the
evidence was insufficient to support the verdict.  The judgment of the
trial court is affirmed.

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

STATE OF TENNESSEE v. RODNEY M. SPURGEON

Court:TCCA

Attorneys:                          

Donald A. Bosch and Andrew S. Roskind, Knoxville, Tennessee (on
appeal); and William M. Liebrack, Newport, Tennessee (at trial),  for
the appellant, Rodney M. Spurgeon.

Paul G. Summers, Attorney General & Reporter; Angele M. Gregory,
Assistant Attorney General;  Al Schmutzer, Jr., District Attorney
General; and Steven R. Hawkins, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

On May 3, 2002, a Sevier County jury convicted the defendant, Rodney
M. Spurgeon, of arson and the burning of personal property.  For these
offenses the jury levied fines of $10,000 and $2,500, respectively.  
After denying the defendant's motion for new trial, the trial court
sentenced him to ten years for the arson conviction and four years for
setting fire to personal property.  These convictions are to run
concurrently as a Range II offender.  The defendant appeals these
convictions.  His sole argument on appeal is whether unfair prejudice
resulted from the trial court's failure to comply with the strict
guidelines of Tennessee Rule of Evidence 404(b).  We find no
reversible error and therefore affirm the convictions.

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

STATE OF TENNESSEE v. MICHAEL S. STACY

Court:TCCA

Attorneys:                          

Michael S. Stacy, MTCC-Annex, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Robert H. Montgomery, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant appeals the trial court's dismissal of his motion for
correction of an illegal sentence.  Pursuant to a negotiated plea
agreement, the defendant entered a nolo contendere plea to a Class B
felony and was sentenced by the trial court as a Range I, standard
offender to ten years, two years above the presumptive minimum
sentence in the range.  Subsequently, the defendant filed a pro se
motion to correct an illegal sentence, arguing that the trial court
violated the requirements of the 1989 Sentencing Reform Act by failing
to state enhancement factors to support the increase in his sentence
from the presumptive minimum eight-year sentence.  The trial court
dismissed the motion, and the defendant appealed to this court. 
Finding no error, we affirm the trial court's dismissal of the
defendant's motion to correct illegal sentence.

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

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