Opinion Flash

June 1, 2004
Volume 10 — Number 105

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
04 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
02 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
05 New Opinion(s) from the Tennessee Court of Appeals
08 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


PATRICIA M. BRYANT v. BAPTIST HEALTH SYSTEM HOME CARE OF EAST
TENNESSEE

Court:TSC - Workers Comp Panel

Attorneys:                          

Reuben N. Pelot IV, Knoxville, Tennessee, for the appellant, Baptist
Health System Home Care of East Tennessee.

J. Anthony Farmer, Knoxville, Tennessee, for the appellee, Patricia M.
Bryant.

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 awarded the employee 22.5 percent permanent partial disability. 
The employer contends the award was excessive and the trial court was
in error in dismissing its counterclaim seeking expenses and penalties
under the Workers' Compensation Fraud Act as the employee testified
falsely in a discovery deposition.  Judgment does not dispose of the
counterclaim and is merely interlocutory and not subject to interim
appeal.  Appeal dismissed.

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

MICHAEL L. COLLINS v. ADVENT ELECTRIC d/b/a ENCOMPASS ELECTRICAL
TECHNOLOGIES OF EAST TENNESSEE, INC., ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Linda J. Hamilton Mowles, Knoxville, Tennessee, for Appellant,
Insurance Company Of The State Of Pennsylvania.

James M. Davis, Morristown, Tennessee, for Appellee, Michael L.
Collins.

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 AnnS 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  The trial
court awarded the employee 70 percent permanent partial disability. 
The insurance carrier contends the trial court was in error in finding
(1) proper notice of injury had been given, (2) the action was timely
filed and not barred by the one year statute of limitations, and (3)
the expert medical testimony was sufficient to establish causation of
injury.  Judgment is affirmed.

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

TIFFANY LEWIS DENYER  v. PENINSULA HOSPITAL

Court:TSC - Workers Comp Panel

Attorneys:                          

R. Kim Burnette and John A. Willis, Knoxville, Tennessee, attorneys
for appellant, Peninsula Hospital.

Garry Ferraris, Knoxville, Tennessee, attorney for appellee, Tiffany
Lewis Denyer.

Judge: CATE

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
employer contends the trial court's award of 50 percent permanent
partial disability to the arm was excessive.  We disagree and affirm.

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

SHARON D. KELLER v. NATIONAL HEALTHCARE CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:                          

Paul Campbell III, Chattanooga, Tennessee, for Appellant, National
Healthcare Corporation.

John Mark Griffin, Chattanooga, Tennessee, for Appellee, Sharon D.
Keller.

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 awarded the employee 42 percent permanent partial disability as
a result of a rotator cuff tear injury.  The employer contends the
evidence preponderates against the award.  Other issues relate to the
award of temporary total benefits, proper notice and the statute of
limitations.  The judgment is affirmed.

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

SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0601.wpd

IN RE:  AMENDMENTS TO SUPREME COURT RULE 13 
WITH DISSENTING OPINION & APPENDIX

Court:TSC - Rules

Judge: DROWOTA

First Paragraph:

With the exception of one issue, this Court unanimously adopts amended
Rule 13, set forth as Appendix A to this order.   With regard to ex
parte hearings, the decision of this Court is not unanimous.  The
majority decision appears in subsection III of this order.   A
separate dissent is attached and made a part of this order.   With
respect to all other issues, this order represents the unanimous
decision of the Court.

http://www.tba.org/tba_files/TSC_Rules/finalorderrule13_6-1-04.wpd

DISSENTING OPINION
http://www.tba.org/tba_files/TSC_Rules/finaldisrule13_6-1-04.wpd

APPENNDIX
http://www.tba.org/tba_files/TSC_Rules/finalappxrule13_6-1-04.wpd

STATE OF TENNESSEE, ET AL. v. JAMIE LYNN BURNETTE, ET AL.

Court:TCA

Attorneys:                          

John H. Richardson, Jr., Fayetteville, Tennessee, for the appellant,
Jamie Lynn Burnette.

Paul G. Summers, Attorney General and Reporter; Melissa Thomas and
Juan G. Villasenor Maldonado, for the appellee, Tennessee Department
of Children's Services.

Judge: CAIN

First Paragraph:

This appeal involves the juvenile court's termination of parental
rights to two children, A.L.B. (d.o.b. 10/25/96), and B.L.B. (d.o.b.
12/01/98).  Appellant argues that the trial court's findings regarding
abandonment of the children, persistent conditions, and the children's
best interests are unsupported by clear and convincing evidence.  We
affirm the trial court.

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

KEVIN DEMERS, ET AL. v. WALTER WHITTENBURG, ET AL.
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

Troy L. Brooks, Mt. Juliet, Tennessee, for the appellants, Kevin
Demers and Demers, Inc.

Robert J. Mendes, Nashville, Tennessee, for the appellees, Walter
Whittenburg, Randall Qualls, and Whittenburg, Inc.

Michael Ernest Evans, Nashville, Tennessee, for the appellee, Karen
Annette Wallace Demers.

Judge: CAIN

First Paragraph:

This case involves two Rule 12.02(6) motions to dismiss converted to
motions for summary judgment through the filing of additional
affidavits with Plaintiff's response to these motions.  Although the
trial court dismissed all claims against Defendants for failure to
state a claim under Rule 12.02(6), we must review the evidence using a
Rule 56 motion for summary judgment standard. Plaintiff alleged
numerous business torts, conspiracy, intentional infliction of
emotional distress, and defamation in this action against Defendants. 
However, Plaintiff failed to provide any evidence from which a jury
could return a verdict in favor of Plaintiff on any count alleged. 
The trial court also granted Rule 11 sanctions against Plaintiff.  The
judgment of the trial court is affirmed, but on summary judgment
grounds.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/demerskevin_con.wpd

DANA FRIEDENSTAB, ET AL. v. MARTHA SHORT
WITH DISSENTING OPINION

Court:TCA

Attorneys:                          

Pamela M. Spicer, Nashville, Tennessee, for the appellants, Dana
Friedenstab and Michael Friedenstab.

Alan M. Sowell, M. Kristin Selph, Nashville, Tennessee, for the
appellee, Martha Short.

Judge: CAIN

First Paragraph:

The plaintiffs bring this appeal from the trial court's summary
judgment in favor of the defendant.  We affirm.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCA/friedenstabdana_dis.wpd

JOHN McVOY v. MARY ANN PARKS

Court:TCA

Attorneys:                          

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Mary
Ann Parks.

Randall J. Spivey, Nashville, Tennessee, for the appellee, John McVoy.

Judge: KOCH

First Paragraph:

This appeal involves an order of protection.  After several public
confrontations with his former girlfriend, the petitioner sought an
order of protection from the Chancery Court for Sumner County.  The
trial court granted the order of protection, and the former girlfriend
appealed to this court.  Because the evidence does not preponderate
against the trial court's decision, we affirm.

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

CHERYL O'BRIEN  v. RHEEM MANUFACTURING CO.

Court:TCA

Attorneys:                          

Phillip Leon Davidson, Nashville, Tennessee, for the appellant, Cheryl
O'Brien.

Michael North and Ronald Gene Harris, New Orleans, Louisiana, for the
appellee, Rheem Manufacturing Co.

Judge: CAIN

First Paragraph:

In this appeal an unsuccessful plaintiff seeks review of a jury
verdict approved by the trial court, in favor of the defendant
manufacturer.  We affirm.

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

STATE OF TENNESSEE v. SALVATORE BRUNETTI

Court:TCCA

Attorneys:                          

William B. (Jake) Lockert, III, District Public Defender, for the
appellant, Salvatore Brunetti.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; and Suzanne Lockert, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Salvatore Brunetti, was convicted of voluntary
manslaughter.  The trial court imposed a sentence of five years in the
Department of Correction.  In this appeal, the defendant asserts that
the trial court erred by denying an alternative sentence.  The
judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. JAMIE MICHELLE CRAWFORD

Court:TCCA

Attorneys:                          

Steve McEwen, Mountain City, Tennessee, (on appeal); and Stephen M.
Wallace, District Public Defender; and Joseph F. Harrison, Assistant
Public Defender, Blountville, Tennessee, (at trial), for the
appellant, Jamie Michelle Crawford.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Joseph Eugene Perrin, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Following a revocation hearing, the trial court revoked the probation
of Defendant, Jamie Michelle Crawford, and ordered her to serve the
remainder of her sentence in confinement.  Defendant does not appeal
the revocation of her probation but argues that the trial court erred
in not imposing a sentence of split confinement.  After a thorough
review of the record in this matter, we affirm the judgment of the
trial court revoking probation and ordering Defendant to serve her
sentence in confinement.

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

JERRY W. DICKERSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Jerry W. Dickerson, Mountain City, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; and Braden Boucek, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Jerry W. Dickerson, appeals from the trial court's
dismissal of his pro se petition for writ of habeas corpus. 
Petitioner alleges that his conviction and sentence are void because
the trial record was improperly authenticated and contained
inaccuracies.  Following a review of the record in this matter, we
affirm the judgment of the trial court.

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

ROBERT L. DREW v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Dwight E. Scott, Nashville, Tennessee, for the appellant, Robert L.
Drew.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; and Doug Thurman, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Robert L. Drew, appeals the denial of his petition for
post-conviction relief.  The issue is whether he was denied the
effective assistance of counsel.  The judgment of the post- conviction
court is affirmed.

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

DAVID JOHNSON HARTSELL v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

David Johnson Hartsell, Petros, Tennessee, pro se. 

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; and Joe Crumley, District Attorney
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, David Johnson Hartsell, appeals the order of the
Circuit Court for Washington County dismissing his post-conviction
relief petition. The State has filed a motion requesting that this
Court affirm the trial court's denial of relief pursuant to Rule 20,
Rules of the Court of Criminal Appeals. The petition fails to present
a cognizable claim for relief.  Accordingly, the State's motion is
granted and the judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. DAVID HESTER

Court:TCCA

Attorneys:                          

James D. Hutchins, Dandridge, Tennessee, for the appellant, David
Hester.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; Al Schmutzer, Jr., District Attorney
General; and Steven Hawkins, Charles E. Atchley, Jr., and Joseph
Baker, Assistant District Attorneys General, for the appellee, the
State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, David Hester, pled guilty to statutory rape.  The trial
court imposed a one-year sentence to be served on supervised probation
and directed community service.  In this appeal, he asserts that the
trial court erred by denying judicial diversion.  The judgment of the
trial court is affirmed.

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

STATE OF TENNESSEE v. DONALD KEEL

Court:TCCA

Attorneys:                          

Michael A. Carter, Crocker & Carter, Milan, Tennessee, for the
Appellant, Donald Keel.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; J. Ross Dyer, Assistant Attorney General; Garry G.
Brown, District Attorney General; and Jerald Campbell, Assistant
District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Donald Keel, was convicted in the Gibson County Circuit
Court of aggravated perjury, felon in possession of a handgun, and
assault.  Keel's sentence for aggravated perjury was imposed
consecutively to his concurrent sentences for unlawful weapon
possession and assault.  On appeal, he raises two issues for our
review:  (1) whether the evidence is sufficient to support his
conviction for aggravated perjury and (2) whether consecutive
sentencing is proper.   After review of the record, we affirm the
conviction and subsequent sentencing decision.

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

STATE OF TENNESSEE v. BILLY GENE RICH

Court:TCCA

Attorneys:                          

Lloyd R. Tatum, Tatum & Tatum, Henderson, Tennessee, for the
Appellant, Billy Gene Rich.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General;
James G. Woodall, District Attorney General; and Angela R. Scott,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Billy Gene Rich, was convicted of driving under the
influence (DUI), second offense, and was sentenced to serve eleven
months and twenty-nine days in jail.  On appeal, Rich argues that: (1)
the evidence is insufficient to support his conviction and (2) his
sentence is excessive.  After review, the conviction and sentence are
affirmed.

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

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