The ADA Act: The First 15 Years
May 19 - Tennessee Bar Center, Nashville
On July 26, 2005, we will celebrate the 15th Anniversary of the
signing of the Americans with Disabilities Act. This session will
cover the 1-2-3's of the ADA as we look back on where we have come
from and envision where we are headed. The Course Offerings will
include substantive sessions in:
*Title I (Litigating Employment Discrimination cases in Tennessee)
*Title II (Panel discussion of Lane v.Tennessee from the front line
attorneys)
*Title III (Recent developments in Public Accommodation Accessibility
litigation from national experts, Fox & Robertson, P.C.)

This CLE is designed to be valuable to beginners and seasoned
practitioners alike, and will be followed by a reception for all
participants to meet the faculty and network.

Register at:
https://www.tba.org/onsiteinfo/disabilitylaw_2005.html

Today's Opinions: April 29, 2005
Volume 11 — Number 81
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.
00 New Opinion(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Court of Appeals
03 New Opinion(s) from the Tennessee Court of Criminal Appeals
05 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

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

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


WANDA ELY v. DEROYAL INDUSTRIES, INC., and DINA TOBIN, DIRECTOR OF THE
DIVISION OF WORKERS' COMPENSATION, TENNESSEE DEPARTMENT OF LABOR,
SECOND INJURY FUND

Court:TSC - Workers Comp Panel

Attorneys:

David H. Dunaway, Lafollette, Tennessee for the Appellant, Wanda Ely
James T. Shea, IV, Knoxville, Tennessee for the Appellee, DeRoyal
Industries, Inc.

Paul G. Summers, Attorney General and Reporter, Richard M. Murrell,
Assistant Attorney General, Nashville, Tennessee for Appellee, Second
Injury Fund

Judge: PEOPLES

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 of findings of fact and conclusions of law. The trial court
found the employee failed to prove her claims of occupational disease
or aggravation of pre-existing condition. We affirm.

http://www.tba.org/tba_files/TSC_WCP/2005/elyw42905.pdf

MARGIE PILLERS v. JOSTEN'S PRINTING & PUBLISHING and
TRAVELERSINSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

Daniel C. Todd, Todd & Floyd, PLC, Nashville, TN, for the appellant,
Margie Pillers.

Lee Anne Murray, Feeney & Murray, P.C., Nashville, TN, for the
appellees, Josten's Printing & Publishing and Travelers Insurance
Company.

Judge: SCOTT

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 fact and conclusions of
law. In this appeal, the injured employee insists the award of
twenty-five percent vocational disability to the body as a whole,
based on a ten percent permanent medical impairment rating offered by
the treating physician, is inadequate. The employee contends that the
trial court erred in setting the impairment rating at ten percent and
that the evidence preponderates for a finding of twenty-five percent
medical impairment rating, subject to a multiplier of two and
one-half. We hold that the evidence does not preponderate against the
trial court's findings as to the extent of anatomical and vocational
disability. Accordingly, the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TSC_WCP/2005/pillersm42905.pdf

ROBERT WARNER v. BARNEY POTTS d/b/a POTTS ROOFING and REALM NATIONAL
INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

Steve C. Norris, Mayo, Norris, & Carpenter, Nashville, TN, for the
appellant, Robert Warner.

D. Brett Burrow and Jason A. Lee, Brewer, Krause, & Brooks, Nashville,
TN, for the appellees, Barney Potts d/b/a Potts Roofing and Realm
National Insurance Company.

Judge: SCOTT

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tennessee Code
Annotated S 50-6-225(e)(3) for hearing and reporting of findings of
fact and conclusions of law. In determining whether the appellant was
an employee or an independent contractor, the trial court evaluated
the factors listed in Tenn. Code Ann. S 50-6-102(10) distinguishing
between employees and independent contractors and considered the
evidence to be inconclusive. The trial court based its determination
of independent contractor status on a Form I-18, Election of
Non-Coverage by Sub-Contractor, filed by the appellate almost two
years prior to the accident. The appellant contends that the trial
court erred by determining he was an independent contractor. For the
reasons set forth below, we reverse the holding of the trial court and
remand for a determination of degree of disability.

http://www.tba.org/tba_files/TSC_WCP/2005/warnerr42905.pdf

WILLIAM T. TERRELL and MARTHA M. TERRELL, v. UNITED VAN LINES, INC.,
KWICK-WAY TRANSPORTATION COMPANY, and VANLINER INSURANCE CO.

Court:TCA

Attorneys:

William T. Terrell, Knoxville, Tennessee, for appellants. 

Louis Andrew McElroy II, Knoxville, Tennessee, for appellees.

Judge: FRANKS

First Paragraph:

The Trial Court entered Judgment for plaintiffs for damages, but
refused to permit plaintiffs to amend the complaint to claim
defendants violated the Consumer Protection Act, and disallowed
plaintiffs' Rule 11, Tenn. R. Civ. P. Motion for Sanctions. On appeal,
we affirm.

http://www.tba.org/tba_files/TCA/2005/terrellw42905.pdf

With Concurring Opinion
http://www.tba.org/tba_files/TCA/2005/terrellw42905_con.pdf

WYLIE STEEL FABRICATORS, INC. v. RUTH E. JOHNSON, COMMISSIONER OF
REVENUE FOR THE STATE OF TENNESSEE

Court:TCA

Attorneys:

Gerald B. Kirksey, Timothy H. Nichols, Brentwood, TN, for Appellant

Paul G. Summers, Attorney General and Reporter, Wyla M. Posey,
Assistant Attorney General, Nashville, TN, for Appellee

Judge: KILCREASE

First Paragraph:

This appeal involves a sales and use tax assessment issued by the
Tennessee Department of Revenue against a taxpayer engaged in the
business of fabricating steel products for use in various structures.
The taxpayer obtained purchase orders from three churches for raw
materials to be used in the fabrication of steel products which were
to be incorporated into the churches then under construction. The
taxpayer secured the raw materials, fabricated the steel products, and
installed them in the churches. The taxpayer did not pay sales or use
tax on any of the raw materials used in the fabrication process. The
department subsequently audited the taxpayer and assessed a tax
liability for taxes owed on the materials. The taxpayer paid the
amount assessed and filed suit in the chancery court to contest the
assessment. Specifically, the taxpayer asserted that it was entitled
to an exemption under section 67-6-209(b) of the Tennessee Code. After
both parties filed crossmotions for summary judgment, the chancery
court granted the department's motion and denied the taxpayer's
motion. We affirm in part, reverse in part, and remand this case to
the trial court for further proceedings consistent with this opinion.

http://www.tba.org/tba_files/TCA/2005/wyliesteel42905.pdf

STATE OF TENNESSEE v. LEON JAMES ANDERSON

Court:TCCA

Attorneys:

G. Kline Preston, IV, Nashville, Tennessee, for the appellant, Leon
James Anderson.

Paul G.Summers, Attorney General & Reporter; John H.Bledsoe, Assistant
Attorney General; Ron Davis, District Attorney General, and Georgia
Felner, Assistant District Attorney General, for the appellee, State
of Tennessee.

Judge: EASTER

First Paragraph:

The appellant, Leon James Anderson, was indicted bythe
WilliamsonCounty Grand Jury for driving under the influence ("DUI"),
speeding, driving with a revoked license, and fourth offense DUI. The
appellant was convicted by a jury on the first three counts, and
waived his right to a jury for the fourth offense DUI charge. The
trial court found the appellant guilty of fourth offense DUI. The
appellant was sentenced by the trial court to two (2) years for the
driving under the influence fourth offense, thirty days for speeding,
and six months for driving on a revoked license, all to be served
concurrently. After the denial of a motion for new trial, this appeal
ensued. On appeal, the appellant challenges the sufficiency of the
evidence and contends his sentence is excessive. Because the evidence
is sufficient to support the convictions and the sentence is not
excessive, we affirm the judgment of the trial court. However, we
remand the matter to the trial court for the limited purpose of
correcting errors in some of the judgments.

http://www.tba.org/tba_files/TCCA/2005/andersonl42905.pdf

STATE OF TENNESSEE v. LYLE VAN ULZEN AND BILLY J. COFFELT

Court:TCCA

Attorneys:

Cynthia F. Burnes, Nashville, Tennessee, for the appellant, Lyle Van
Ulzen. Larry B. Hoover, Nashville, Tennessee, for the appellant, Billy
J. Coffelt.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; and Kathy Morante, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WYATT

First Paragraph:

The defendants, inmates at Riverbend Penitentiary, successfully
temporarily escaped from custody while being transported to a court
appearance. At trial, Defendant Van Ulzen was convicted of two counts
of aggravated robbery (Class B felony), two counts of aggravated
assault (Class C felony), four counts of false imprisonment
(misdemeanor), one count of theft (misdemeanor), and pled guilty to
one count of felony escape (Class E felony). Defendant Coffelt was
convicted of one count of aggravated assault (Class C felony), three
counts of theft (misdemeanor), four counts of false imprisonment
(misdemeanor), and one count of felony escape (Class E felony). On
appeal, Defendant Van Ulzen appeals his convictions and sentence.
Defendant Coffelt appeals aspects of his convictions. Upon review of
Defendant Van Ulzen's appeal, we reverse and dismiss one count of
aggravated assault as violative of double jeopardy. Allother
convictions and judgments as to both defendants are affirmed. We
remand for correction of judgments as to Defendant Coffelt.

http://www.tba.org/tba_files/TCCA/2005/vanulzenl42905.pdf

STATE OF TENNESSEE v. JOSEPH VERMEAL

Court:TCCA

Attorneys:

Rick L. Stacy (at trial and on appeal) and Lisa Zavogiannis (at
trial), McMinnville, Tennessee, for the appellant, Joseph Vermeal.

Paul G.Summers, Attorney General and Reporter; Elizabeth B.Marney,
Assistant Attorney General; Dale Potter, District Attorney General;
and Thomas Miner, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: STANLEY

First Paragraph:

The appellant, Joseph Vermeal, was convicted by a jury in the Warren
County Circuit Court of aggravated sexual battery and was sentenced to
nine years incarceration in the Tennessee Department of Correction. On
appeal, the appellant alleges that the evidence was insufficient to
support his conviction, and he contends that the trial court erred in
refusing to permit his expert witness to testify. Upon our review of
the record and the parties' briefs, we affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TCCA/2005/vermealj42905.pdf

Validity of Pending Legislation Allowing Local Governments to Impose
Fees on Federal Facilities Related to Storage and Disposal of Solid
and Radioactive Waste

Date: April 27, 2005

Opinion Number: 05-060

http://www.tba.org/tba_files/AG/2005/OP60.pdf

Expanding Jurisdiction of Municipal Courts

Date: April 27, 2005

Opinion Number: 05-061

http://www.tba.org/tba_files/AG/2005/OP61.pdf

General Sessions Judge on State Election Commission

Date: April 27, 2005

Opinion Number: 05-062

http://www.tba.org/tba_files/AG/2005/OP62.pdf

Constitutionality of Senate Joint Resolution 105 and House Joint
Resolution 122

Date: April 27, 2005

Opinion Number: 05-063

http://www.tba.org/tba_files/AG/2005/OP63.pdf

No Child Left Behind -- Additional Requirements for Licensed Teachers

Date: April 27, 2005

Opinion Number: 05-065

http://www.tba.org/tba_files/AG/2005/OP65.pdf

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