June 22, 1999 Volume 5 -- Number 085 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):   00 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 07 New Opinion(s) from the Tennessee Court of Appeals 04 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   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: 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. *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WordPerfect 6.0 version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original WordPerfect 6.0 document. Lucian T. Pera Editor-in-Chief, TBALink IN RE: ESTATE OF HAROLD L. JENKINS, Deceased Court:TCA Attorneys: Timothy L. Warnock, BOWEN, RILEY, WARNOCK & JACOBSON, PLC, Nashville, Tennessee Michael D. Sontag, BASS, BERRY & SIMS, PLC, Nashville, Tennessee Attorneys for Appellant Dolores Henry Jenkins. Charles W. McElroy, WHITE & REASOR, Nashville, Tennessee Brenda Rhoton Little, PARKER & CROFFORD, Nashville, Tennessee Attorneys for Appellees/Cross Appellants Joni L. Jenkins and Kathy A. Jenkins. Denty Cheatham, Rose Palermo, CHEATHAM & PALERMO, Nashville, Tennessee Attorneys for Appellee Co-Executors of the Estate Of Harold L. Jenkins, Deceased, Hugh C. Carden and Donald W. Garis. Jimmy Harold Jenkins, Pro Se Michael Lloyd Jenkins, Pro Se Judge:FARMER First Paragraph: Harold L. Jenkins ("Decedent"), professionally known as Conway Twitty, died on June 5, 1993. Prior to his death, the Decedent executed a last will and testament and two codicils bequeathing $50,000.00 to Velma Dunaway, the Decedent's mother, and the remainder of his estate to Joni Jenkins, Kathy Jenkins, Jimmy Jenkins, and Michael Jenkins ("Children"), the Decedent's four adult children. On June 14, 1993, these documents were admitted to probate and Hugh Carden and Donald Garis ("Co-Executors") were appointed to serve as the co-executors of the Decedent's estate. http://www.tba.org/tba_files/TCA/Jenkinsh_opn.WP6 TRACY RENEE MIGLIN VS. DANIEL WALTER MIGLIN Court:TCA Attorneys: For the Plaintiff/Appellee: For the Defendant/Appellant: Barbara J. Walker Louise R. Fontecchio Columbia, Tennessee Nashville, Tennessee Judge:LILLARD First Paragraph: This is a post-divorce case involving a petition to modify child support and modify or terminate alimony. The trial court ordered the father to pay child support according to the child support guidelines based on his year to date earnings, plus a percentage of any bonuses received. The trial court refused to modify or terminate alimony. The father now appeals. Because the bonuses were counted twice, we reverse the trial court's order for an additional percentage of bonuses received. The remainder of the trial court's order is affirmed. http://www.tba.org/tba_files/TCA/Miglintr_opn.WP6 THOMAS OWENS VS. ANGELIA OWENS VS. JAMES R. OWENS and FERN OWENS Court:TCA Attorneys: For the Defendant/ For the Defendants/Appellants: Counter-Plaintiff/Appellee David L. Allen J. Daniel Freemon Lawrenceburg, Tennessee Lawrenceburg, Tennessee Judge:LILLARD First Paragraph: This is a divorce case involving the division of marital property. During their marriage, the husband and wife built a house on property owned by the husband's parents. The trial court granted a lien against the property in favor of the wife for half the value of the marital home. The husband's parents appeal. We affirm. http://www.tba.org/tba_files/TCA/Owenst_opn.WP6 GRAHAM SCHINDEL and ASPEN SCHINDEL, minors, by next friend and natural guardians, GEARY SCHINDEL and SUSAN SCHINDEL and GEARY SCHINDEL and SUSAN SCHINDEL, individually VS. RICHARD H. BASS and COMDATA NETWORK, INC. Court:TCA Attorneys: For the Plaintiffs/Appellants: For the Defendants/Appellees: Thomas F. Bloom E. Todd Presnell Nashville, Tennessee Dana D. Ballinger Nashville, Tennessee Judge:LILLARD First Paragraph: This is a personal injury case arising from an automobile collision. Geary Schindel and Susan Schindel, on their behalf and on behalf of their two minor children, Graham and Aspen Schindel, ("Plaintiffs") filed suit against Richard Bass and his employer Comdata Network, Inc. ("Defendants") for personal injuries sustained in an automobile accident. The trial court granted summary judgment in favor of the Defendants, and the Plaintiffs appeal. We reverse. http://www.tba.org/tba_files/TCA/Schindeg_opn.WP6 DANIEL B. TAYLOR VS. STATE OF TENNESSEE, JOHN DOE, STATE COORDINATOR OF ELECTIONS, MS. BOBBIE WHITE, SHELBY COUNTY REGISTRAR OF VOTERS; and CHARLES W. BURSON, ATTORNEY GENERAL Court:TCA ORDER ON PETITION TO REHEAR Judge:CANTRELL First Paragraph: Daniel B. Taylor has filed a petition for a rehearing of this case, asking us to vacate the opinion and judgment filed by this court on February 9, 1999, in order to correct what he contends are fundamental errors of law. His petition was filed on March 8, 1999. According to Rule 39(b) of the Rules of Appellate Procedure, "[a] petition for rehearing must be filed with the clerk of the appellate court within 10 days after entry of judgment unless on motion the time is shortened or enlarged by the court or a judge thereof. Motions for extending time to file petitions for rehearing will be allowed only in extreme and unavoidable circumstances." There is no indication in the record that Mr. Taylor ever filed a motion with this court to enlarge the time to file his petition. However, even if we deemed the late-filed petition to contain the equivalent of a motion for an extension of time, there is nothing in Mr. Taylor's petition to indicate the kind of extreme and unavoidable circumstances that would justify granting such a motion. It therefore follows that it is appropriate to dismiss the petition as untimely. It is so ordered. http://www.tba.org/tba_files/TCA/Taylordb_reh.WP6 RICHARD TUCKER AND JOE DIFIORE VS. CHRISTOPHER CARR TURNER Court:TCA Attorneys: For the Plaintiffs/Appellees: For the Defendant/Appellant: James D. Kay, Jr. Gregory D. Smith Bridgett A. Wohlpart Clarksville, Tennessee Nashville, Tennessee Judge:LILLARD First Paragraph: This malicious prosecution case stems from a previous separate malicious prosecution lawsuit. The defendant in this case was charged with certain crimes; a grand jury later cleared him of the charged crimes. The defendant then filed a malicious prosecution and abuse of process case against the two plaintiffs in this case. The defendant in this case subsequently confessed to the crime and nonsuited his malicious prosecution case. The plaintiffs in this case then filed a malicious prosecution case against the defendant. During the jury trial, the trial court denied both the plaintiffs' and defendant's request for a directed verdict. The jury subsequently found in favor of the plaintiffs and awarded compensatory and punitive damages to the plaintiffs. The defendant appeals. We affirm. http://www.tba.org/tba_files/TCA/Tuckerr_opn.WP6 MIKE WILLIAMS, INDIVIDUALLY, and d/b/a MIKE'S FOOD VALUE and WESTMORELAND BI-RITE VS. 7-11 INSTALLATION & SERVICE, INC. and BUD CARTER Court:TCA RULE 10 MEMORANDUM OPINION First Paragraph: This matter appears appropriate for consideration pursuant to Rule 10(b) of the Rules of the Court of Appeals of Tennessee. This is a breach of contract case involving the sale and installation of refrigeration equipment. The owner of the property alleged that the contractor breached the agreement to install the equipment. The trial court entered a judgment in favor of the property owner. The contractor appeals. We affirm in part, reverse in part, and remand to the trial court as set forth below. http://www.tba.org/tba_files/TCA/Williamm_opn.WP6 STATE OF TENNESSEE VS. DENNY JAMES McABEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: S. RAY WHITE (on appeal) JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 9856 S. Windrow Rd. Rockvale, TN 37153 TIMOTHY F. BEHAN Assistant Attorney General RAY CULP (at motion for new trial) 425 Fifth Ave. N., 2d Floor Attorney at Law Nashville, TN 37243-0493 439 Battle Ave. Franklin, TN 37064 VICTOR S. JOHNSON, III District Attorney General PAUL BRUNO (at trial) Attorney at Law LILA STATOM 222 Second Ave. North, Ste. 350 Asst. District Attorney General Nashville, TN 37201 222 Second Ave North, Ste. 500 Nashville, TN 37201 RAYBURN McGOWAN, JR. (at trial) Attorney at Law 222 Second Ave. North, Ste. 416 Nashville, TN 37201 Judge:WITT First Paragraph: The defendant, Denny James McAbee, stands convicted of aggravated robbery for the carjacking of Earl Glen "Bubba" Lackey, Jr. on April 19, 1996. McAbee received his conviction at the conclusion of a jury trial in the Davidson County Criminal Court. He was subsequently sentenced to serve fourteen years in the Department of Correction consecutively to a previously imposed sentence of six years and one day for an aggravated burglary conviction. In this direct appeal, McAbee raises two issues of alleged error. First, he claims the photographic lineup conducted was improper. Second, he claims prosecutorial misconduct in witness intimidation and in failing to disclose exculpatory information during discovery. Following a review of the record, the briefs and oral arguments of the parties, and the law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mcabeedj_opn.WP6 STATE OF TENNESSEE VS. JEFFERY MILLER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ROGER K. SMITH JOHN KNOX WALKUP 104 Woodmont Blvd., Ste 115 Attorney General & Reporter Nashville, TN 37205 ELIZABETH B. MARNEY Asst. Attorney General Cordell Hull Bldg., 2nd Fl. 425 Fifth Ave., North Nashville, TN 37243-0493 JOHN W. CARNEY District Attorney General HELEN YOUNG Asst. District Attorney General 204 Franklin St., Suite 300 Clarksville, TN 37040 Judge:PEAY First Paragraph: The defendant was convicted by a jury of first-degree murder and sentenced to life in prison with the possibility of parole. The defendant's subsequent motion for a new trial was denied by the trial court. The defendant now appeals and contends that the evidence at trial was insufficient to sustain his conviction. After a review of the record and applicable law, we find no merit to the defendant's contention and thus affirm his conviction. http://www.tba.org/tba_files/TCCA/Millerj_opn.WP6 STATE OF TENNESSEE VS. JOSEPH WAYNE RUSSELL Court:TCCA Attorneys: For the Appellant: For the Appellee: Jeffrey A. DeVashier Paul G. Summers Asst. Public Defender Attorney General and Reporter 1202 Stahlman Bldg. Nashville, TN 37201 Georgia Blythe Felner Assistant Attorney General (ON APPEAL) Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Alan Calhoun Nashville, TN 37243-0493 Asst. Public Defender 1202 Stahlman Bldg. Nashville, TN 37201 Victor S. (Torry) Johnson III District Attorney General (AT TRIAL) Nick Bailey Asst. District Attorney General Karl Dean Washington Sq., Suite 500 Public Defender 222-2nd Avenue North Nashville, TN 37201-1649 Judge:HAYES First Paragraph: The appellant, Joseph Wayne Russell, appeals the sentencing decision of the Davidson County Criminal Court. Originally indicted on two counts of rape of a child, the appellant pled guilty to one count of criminal attempt to commit rape of a child, a Class B felony. Under the terms of the plea agreement, the appellant received an eight year sentence with the manner of service of the sentence to be submitted to the trial court for determination. The trial court ordered total confinement. The appellant appeals contending that the trial court erred in failing to grant an alternative sentence, specifically arguing that he should have been placed on "probation after some period of confinement." After review of the record, we affirm the judgment of the trial court pursuant to Rule 20, Tenn. Ct. Crim. App. R. http://www.tba.org/tba_files/TCCA/Russellj_opn.WP6 STATE OF TENNESSEE VS. RICHARD VARES Court:TCCA Attorneys: For the Appellant: For the Appellee: Joseph L. Hornick Paul G. Summers Asst. Public Defender Attorney General and Reporter 98 Church Street, Suite 1 Dickson, TN 37055 Lucian D. Geise Assistant Attorney General Criminal Justice Division William Jake Bradley Lockert III 425 Fifth Avenue North District Public Defender 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 Dan Mitchum Alsobrooks District Attorney General Suzanne Lockert Asst. District Attorney General P. O. Box 580 Charlotte, TN 37036 Judge:HAYES First Paragraph: The appellant, Richard Varese, appeals from a judgment of the Dickson County Circuit Court revoking his probation. In his only issue on appeal, the appellant contends that the trial court abused its discretion by ordering that his original four year sentence be reinstated. Finding no abuse of discretion, we affirm. http://www.tba.org/tba_files/TCCA/Vareser_opn.WP6   PLEASE FORWARD THIS EMAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! See the intrsuctions at the beginning of this edition of Opinion Flash. JOIN TBALink! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. 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