June 15, 1999
Volume 5 -- Number 081

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink from Tennessee's three appellate courts.

This Issue (IN THIS ORDER):
 
04 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
03 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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Lucian T. Pera
Editor-in-Chief, TBALink


NATHAN BREWER
VS.
LINCOLN BRASS WORKS, INC.

Court:TSC

Judgment Order

First Paragraph:

A petition for rehearing has been filed on behalf of appellant, Lincoln
Brass Works, Inc.  After consideration of the same, the Court is of the
opinion that the petition should be and the same hereby is denied at the
cost of appellant, Lincoln Brass Works, Inc.

http://www.tba.org/tba_files/TSC/Brewern_reh.WP6



MARY MATTHEWS VS. PICKETT COUNTY, TENNESSEE, LARRY PEEK and DANA DOWDY Court:TSC Attorneys: FOR PETITIONER: FOR RESPONDENTS: JOSEPH A. JOHNSTON ALAN T. FISTER MAX MENDELSOHN JEFFREY M. BEEMER Nashville Nashville FOR AMICUS CURIAE, TENNESSEE FOR AMICI CURIAE, THE TENNESSEE MUNICIPAL LEAGUE RISK TASK FORCE AGAINST DOMESTIC MANAGEMENT POOL: VIOLENCE; LAWYERS' ASSOCIATION FOR WOMEN, MARION GRIFFIN ROBERT H. WATSON, JR. CHAPTER, and TENNESSEE LAWYERS JOHN C. DUFFY ASSOCIATION FOR WOMEN: Knoxville CHRISTINA NORRIS Nashville FOR AMICUS CURIAE, TENNESSEE ASSOCIATION OF LEGAL SERVICES: THEODORE R. KERN Knoxville Judge:HOLDER First Paragraph: This case comes to us on a certified question of law. The petitioner, Mary Matthews, filed this action in the United States District Court against the respondents, Pickett County, Tennessee, Larry Peek, and Dana Dowdy. The district court held that the petitioner's negligence action was barred by the public duty doctrine, which shields public entities and public employees from tort liability for injuries caused by a breach of a duty owed to the public at large. The petitioner appealed to the Sixth Circuit Court of Appeals. The Sixth Circuit Court of Appeals certified the following question for our resolution: "May the existence of an order of protection give rise to a 'special duty' to protect, and, if so, does the special duty extend to the protection of property?" We accept certification and hold under the facts of this case that the special duty exception to the public duty doctrine is applicable. Accordingly, the respondents may be held liable for the petitioner's damages under the Governmental Tort Liability Act ("GTLA"), Tenn. Code Ann. S 29-20-201 et seq. http://www.tba.org/tba_files/TSC/Mattmary_opn.WP6
NPS ENERGY SERVICES, INC. VS. WILLIAM E. RANKIN Court:TSC Judgement Order First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court. Costs will be paid by defendant/appellant, for which execution may issue if necessary. IT IS SO ORDERED on June 15, 1999. http://www.tba.org/tba_files/TSC/Nps_jo.WP6
NICK ALLEN PARKER VS. TRAVELER'S INDEMNITY COMPANY and THE AETNA CASUALTY AND SURETY COMPANY Court:TSC Judgement Order First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court. Costs will be paid by defendants/appellants, for which execution may issue if necessary. IT IS SO ORDERED on June 15, 1999. http://www.tba.org/tba_files/TSC/Park_jo.WP6
County Junvenile Court S.M.C. and J.L.C. Nos. 08-06-49 & 9619-24593 Court:TCA Attorneys: Thomas H. Miller Franklin, Tennessee Attorney for Petitioner/Appellant, David Edward Chaphe, Jr. J. Michael O'Neil Nashville, Tennessee Attorney for Petitioner/Appellant, Sonya Chaphe Paul G. Summers, Attorney General & Reporter Douglas Earl Diamond, Assistant Attorney General Nashville, Tennessee Attorney for Respondent/Appellee Judge:SHOOKHOFF First Paragraph: Respondents David Edward Chaphe, Jr. ("Mr. Chaphe") and Sonya Chaphe ("Mrs. Chaphe") (collectively "Chaphes" or "Appellants") appeal from the judgement of the Juvenile Court which terminated the Chaphes' parental rights to daughter, S.M.C. and son, J.L.C. http://www.tba.org/tba_files/TCA/Chaphe_opn.WP6
KATHERINE THERESA DeVAULT VS. JAMES CANON DeVAULT, JR Court:TCA Attorneys: LEW CONNER JAMES H. DRESCHER Stokers & Bartholomew, P.A. 424 Church Street, Suite 2800 Nashville, Tennessee 37219 ATTORNEYS FOR PLAINTIFF/APPELLEE KARLA C. HEWITT Hatchett & Hewitt 211 Donelson Pike, Suite 4 Nashville, Tennessee 37214 ATTORNEY FOR DEFENDANT/APPELLANT Judge:CAIN First Paragraph: This appeal involves a dispute over child support for the parties' two minor children. The trial court denied the Father's petition to modify the support as it had been set in the final decree. In addition, the court placed a lien on two of the Father's properties and awarded fees to the Mother's attorney. On appeal, we affirm the court's decision with regard to child support and attorney fees. However, regarding the lien, we modify the trial court's decision such that a lien remains on only one of the Father's properties. Accordingly, the decision of the trial court is affirmed as modified and remand for further proceedings. http://www.tba.org/tba_files/TCA/Devaultk_opn.WP6
KENTUCKY NATIONAL INSURANCE CO. VS. ROBERT G. GARDNER and, SANDRA L. GARDNER Court:TCA Attorneys: J. R. Slobey, BLACKBURN, SLOBEY, FREEMAN & HAPPELL, P.C., Nashville, Tennessee Attorney for Plaintiff/Counter-Defendant/Appellant. F. Dulin Kelly, Clinton L. Kelly, Andy L. Allman, KELLY & KELLY, Hendersonville, Tennessee Attorneys for Defendants/Counter-Plaintiffs/Appellees. Judge:FARMER First Paragraph: Plaintiff Kentucky National Insurance Company appeals the trial court's judgment awarding Defendants/Appellees Robert G. and Sandra L. Gardner the sum of $56,750 under a commercial property insurance policy that Kentucky National previously had issued to the Gardners. The trial court's judgment also awarded the Gardners $14,062.50 in prejudgment interest. We reverse the trial court's judgment based upon our conclusion that the court erred in failing to enforce a provision of the insurance policy which prohibited the Gardners from taking any action after a loss that would impair Kentucky National's subrogation rights. http://www.tba.org/tba_files/TCA/Kentuckn_opn.WP6
STATE OF TENNESSEE VS. STEVE CLICK, JR., Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MACK GARNER PAUL G. SUMMERS District Public Defender Attorney General & Reporter 419 High Street Maryville, TN 37804 TODD R. KELLEY Assistant Attorney General GERALD L. GULLEY, JR., ESQUIRE 425 Fifth Avenue North P.O. Box 1708 2nd Floor, Cordell Hull Bldg. Knoxville, TN 37901 Nashville, TN 37243 MICHAEL L. FLYNN District Attorney General KIRK ANDREWS Assistant District Attorney 363 Court Square Maryville, TN 37804 Judge:CLARK First Paragraph: The appellant, Steve Click, Jr., appeals as of right the sentencing determination of the Blount County Circuit Court. He pled guilty to four counts of aggravated burglary, a Class C felony, three counts of theft over $1,000.00, a Class D felony, and one count of theft over $500.00, a Class E felony. The trial court sentenced him as a Range I standard offender to serve three-year sentences for each aggravated burglary, two-year sentences for each count of theft over $1,000.00, and a one-year sentence for the count of theft over $500.00. All sentences were run concurrent to one another. Appellant also received a two-year consecutive sentence for the Class E felony offense of theft over $500.00 committed while he was released on bond following his arrest on the original charges. The sole issue on appeal is whether the trial court abused its discretion in failing to impose an alternative sentence. Following our review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Click_doc.WP6
STATE OF TENNESSEE VS. THOMAS I. FREEMAN, JR Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MACK GARNER PAUL G. SUMMERS District Public Defender Attorney General & Reporter 419 High Street Maryville, TN 37804 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenue North 2nd Floor, Cordell Hull Bldg. Nashville, TN 37243 MICHAEL L. FLYNN District Attorney General KIRK ANDREWS Assistant District Attorney 363 Court Square Maryville, TN 37804 Judge:CLARK First Paragraph: The appellant, Thomas I. Freeman, Jr., appeals as of right the sentencing decision of the Blount County Circuit Court. The appellant pled guilty to one count of aggravated burglary, a Class C felony, and one count of theft under $500.00, a Class A misdemeanor. The length and manner of service of sentence were determined by the trial court at a sentencing hearing. The court sentenced the appellant to four years six months for aggravated burglary and eleven months twenty-nine days at 70% for theft. The sentences were run concurrently. The appellant was required to serve one year in the county jail followed by three years six months of supervised probation, including one year of intensive probation. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Freeman_doc.WP6
STATE OF TENNESSEE VS. WILLIAM D. WARE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN S. COLLEY, III JOHN KNOX WALKUP P. O. Box 1476 Attorney General and Reporter Columbia, TN 38402-1476 DARYL J. BRAND Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 THOMAS M. BOTTOMS District Attorney General JESSE DURHAM Assistant Attorney General 252 N. Military Ave., Ste. 202 Lawrenceburg, TN 38464 Judge:SMITH First Paragraph: In February of 1995, the Wayne County Grand Jury indicted Appellants William D. Ware and Virginia Ware for manufacture of marijuana and also indicted Mr. Ware for manufacture of LSD. Appellants subsequently filed a motion to suppress all evidence that was seized from their property and from an adjoining neighbor's property by the police on September 29 and 30, 1994. The trial court conducted a hearing on the motion to suppress on July 3, 1996. Appellants then filed a supplemental motion to suppress on July 12, 1996. By letter dated August 14, 1996, the trial court denied the motion to suppress. On August 15, 1996, Appellants asked the trial court to address the search of the adjoining neighbor's property where the LSD was found. The trial court subsequently entered an order on March 4, 1997, that denied the motion to suppress in its entirety. Appellants pled guilty to the above charges on August 13, 1997. That same day, the trial court sentenced Mr. Ware to a term of eight years for the LSD conviction, with one year of confinement followed by seven years of probation. The trial court also sentenced Ms. Ware to two years of probation for the marijuana conviction. After a sentencing hearing on October 9, 1997, the trial court sentenced Mr. Ware to a term of two years for the marijuana conviction, with seven months of confinement followed by one year and five months of probation. Both Appellants challenge their convictions and Mr. Ware challenges his sentence for the marijuana conviction, raising the following issues: 1) whether the helicopter surveillance of their property from an altitude of 300 feet violated Appellants' constitutional rights; 2) whether the search warrant was tainted by an earlier warrantless entry onto Appellants' property; 3) whether the search of an adjoining neighbor's property violated Appellants' rights; and 4) whether the trial court should have imposed full probation for the sentence for Mr. Ware's marijuana conviction. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Warewill_opn.WP6

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