June 29, 1999 Volume 5 -- Number 089 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 16 New Opinion(s) from the Tennessee Court of Appeals 02 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 ANGELA MAE ARP VS. RICHARD LEE ARP Court:TCA Attorneys: ROBERT S. THOMPSON, LOGAN, THOMPSON, MILLER, BILBO, THOMPSON & FISHER, P.C., Cleveland, for Plaintiff-Appellee. B. PRINCE MILLER, JR., Cleveland, for Defendant-Appellant. Judge:FRANKS First Paragraph: In this divorce action, the husband was dissatisfied with the classification of property, the division of marital property, and the custody arrangement ordered by the Trial Judge, and has appealed numerous issues to this Court. http://www.tba.org/tba_files/TCA/Arpa_opn.WP6 JANET K. BAKER VS. MUNDACA INVESTMENT CORPORATION Court:TCA Attorneys: ROBERT D. TUKE and W. EDWARD RAMAGE TUKE YOPP & SWEENEY, PLC 414 Union Street, Suite 1100 Nashville, Tennessee 37219 Attorney for Plaintiff-Appellee JEFFREY A. GREENE and G. MILLER HOGAN, II CASTLEMAN & GREENE, PLLC 110 Glancy Street, Suite 109 Goodlettsville, Tennessee 37072 Attorney for Defendant-Appellant Judge:FRANKS First Paragraph: This action involves a dispute over loan brokerage fees. Defendant- appellant Mundaca Investment Corp. ("Mundaca") purchased "loan packages" at auction. A single package typically consisted of several individual loans secured by real estate. Mundaca hired Plaintiff Janet Baker to assist it in obtaining financing to bid on these packages. http://www.tba.org/tba_files/TCA/Bakerj_opn.WP6 CHARLES A. BUTLER VS. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Charles A. Butler, Pro Se #136479 NECX POB 5000 Mountain City, TN 37683 For Petitioner-Appellant Paul G. Summers Attorney General and Reporter Michael E. Moore Solicitor General Stephanie R. Reevers, BPR 10587 Senior Counsel Civil Rights and Claims Division 425 Fifth Avenue North Second Floor, Cordell Hull Building Nashville, TN 37243-0488 Attorneys for Respondent-Appellee Judge:GODDARD First Paragraph: Plaintiff Charles A. Butler, an inmate incarcerated in the penal system of the State of Tennessee, seeks to have a parole violation detainer issued by the State of Georgia lodged with the Tennessee Department of Corrections declared invalid. As best we understand the record, the basis for Mr. Butler's assertion is that the State of Georgia failed to bring him to trial within 180 days after his request as mandated by the Interstate Compact On Detainers. http://www.tba.org/tba_files/TCA/Butlerch_opn.WP6 GARY T. DOTSON VS. TENNESSEE DEPARTMENT OF CORRECTION and TURNEY CENTER INDUSTRIAL PRISON DISCIPLINARY BOARD Court:TCA Attorneys: Gary T. Dotson TDOC No. 127594 Turney Center, Route 1 Only, TN 37140 Pro Se, Appellant Paul G. Summers Attorney General and Reporter Michael E. Moore Solicitor General Sohnia W. Hong, BPR #17415 Assistant Attorney General Environmental Division 425 Fifth Avenue North Nashville, TN 37243 Attorneys for Respondents-Appellees Judge:GODDARD First Paragraph: This is a suit by Gary T. Dotson, an inmate in the custody of Tennessee Department of Corrections at Turney Center Industrial Prison, seeking reversal of a determination that he was denied due process rights in a hearing which resulted in a finding that he had failed a drug screen test and should be punished as follows: (1) five (5) days of punitive segregation, suspended for sixty (60) days; (2) loss of six (6) months of visitation privileges; and (3) payment of seventeen dollars and fifty cents ($17.50) for the drug screen. http://www.tba.org/tba_files/TCA/Dotsonga_opn.WP6 RICHARD DUVALL VS. ARTIE MOBLEY Court:TCA Attorneys: JAMES BRYAN LEWIS BARRETT, JOHNSTON & PARSLEY 217 SECOND AVENUE NORTH NASHVILLE, TENNESSEE 37201 ATTORNEY FOR PLAINTIFF/APPELLANT SCOTT A. RHODES ADAIR, SCHUERMAN & WHITE BRENTWOOD COMMONS 1, SUITE 160 750 OLD HICKORY BOULEVARD BRENTWOOD, TENNESSEE 37027 ATTORNEY FOR DEFENDANT/APPELLEE Judge:COTTRELL First Paragraph: Plaintiff appeals the trial court's Order granting summary judgment to Defendant on the ground that Plaintiff's claim is barred by the doctrine of res judicata. We affirm the order of the trial court. http://www.tba.org/tba_files/TCA/Duvall_opn.WP6 IN RE: THE ESTATE OF CARLTON AGIB BLESSING, Deceased LAURA EMILY BLESSING WARD VS. JOHN O. BLESSING AND SARAH L. JONES, CO-EXECUTORS Court:TCA Attorneys: Thomas E. Watts, Jr. 201 Fourth Avenue, North, Suite 1260 P. O. Box 198494 Nashville, TN 37219 Attorney for Petitioner-Appellant Vester Neal Agee, Sr. AGEE & AGEE 104-1/2 Public Square P. O. Box 649 Lebanon, TN 37088 Attorney for Defendants-Appellees Judge:GODDARD First Paragraph: This is a suit by Laura Emily Blessing Ward, only child of Carlton Agib Blessing, seeking to have her cousins, John O. Blessing, and Sarah L. Jones, who are the nephew and niece, and also step-children of the deceased, removed as personal representatives of her father's estate. http://www.tba.org/tba_files/TCA/Estatebl_opn.WP6 KENNETH GRISSIM VS. POWELL CONSTRUCTION COMPANY, INC. Court:TCA Attorneys: James H. Price, Knoxville, for Appellant. Rick J. Bearfield, Johnson City, for Appellee. Judge:INMAN First Paragraph: In this jury case the plaintiff successfully sought damages for wrongful discharge from employment, and this is not an issue on appeal. The plaintiff also sought damages pursuant to T.C.A. S 50-1-102, alleging that he was induced by false or deceptive statements to accept employment by the defendant. This theory of recovery was the subject of a motion for a directed verdict which was granted. The issue for determination is the propriety of a directed verdict. http://www.tba.org/tba_files/TCA/Grissim_ca3.WP6 JOHN CLARENCE HOWARD, JR. VS. LINDA JOYCE KEATON HOWARD Court:TCA Attorneys: ROBERT P. RAYBURN, Chattanooga, for Plaintiff-Appellant. JOHN M. HIGGASON, JR., Chattanooga, for Defendant-Appellee. Judge:FRANKS First Paragraph: In this ongoing dispute over child support, the father appeals from the Trial Court's Order establishing child support at $1,413.02 per month for the remaining minor child, and questions the Court's finding that the father was in contempt of court for failing to pay medical bills and make timely support payment, and the award of attorney's fees to the mother. http://www.tba.org/tba_files/TCA/Howardj_opn.WP6 DRUCILLA GAY KILLION VS. JIMMY DALE KILLION Court:TCA Attorneys: David L. Leonard, Greeneville, for Appellant. L. Kirk Wyss, Morristown, for Appellee. Judge:INMAN First Paragraph: The custody of two children is the principal issue in this case. A secondary issue involves the monetary valuation of a mobile home. The Chancellor awarded custody of the children to their mother, and ordered the father to pay her $9,000.00 for her marital interest in the mobile home. Father appeals, insisting that the evidence preponderates against the judgment. http://www.tba.org/tba_files/TCA/Killion_ca3.WP6 PAUL E. KINSLER and wife, BARBARA KINSLER VS. STATE OF TENNESSEE, ex rel, MILITARY DEP'T. OF TENNESSEE, and its ADJUNCT GENERAL Court:TCA Attorneys: Paul A. Harr,, Kingsport, for Appellants. Paul G. Summers, Attorney General and Reporter, and David T. Whitefield, Senior Counsel, Civil Rights and Claims Division, State of Tennessee, for the State. Judge:INMAN First Paragraph: This case is on appeal from the Tennessee Claims Commission. On May 5, 1997, the claimants filed a notice of claim against the State alleging that Mr. Kinsler sustained personal injuries on May 2, 1996, while training as a Tennessee National Guardsman. http://www.tba.org/tba_files/TCA/Kinsler_ca3.WP6 JAMES A. LEMAY VS. STATE OF TENNESSEE, DEPARTMENT OF CORRECTION Court:TCA Attorneys: ROBERT J. MENDES St. Cloud Corner, Suite 575 500 Church Street Nashville, Tennessee 37219 Attorney for Petitioner/Appellee JOHN KNOX WALKUP Attorney General and Reporter JOHN R. MILES c/o Attorney General and Reporter 425 Fifth Avenue North Nashville, Tennessee 37243-0488 Attorney for Respondent/Appellant Judge:CANTRELL First Paragraph: The question we must decide is whether a conditional commutation of a prison sentence may be revoked at any time during the original sentence, or can it only be revoked during the commuted sentence? The Chancery Court of Davidson County entered a declaratory judgment that an attempted revocation after the expiration of the commuted sentence was void. We reverse. http://www.tba.org/tba_files/TCA/Lemayja_opn.WP6 IN RE: ESTATE OF FRANCIS M. LOGWOOD, DECEASED Court:TCA Attorneys: Joel A. Conkin, Kingsport, for the Appellant. Shelburne Ferguson, Jr., Kingsport, for the Appellee. Judge:INMAN First Paragraph: The testator, Francis M. Logwood, died November 14, 1995. The issue in this case is the proper interpretation of a holographic codicil to his will. http://www.tba.org/tba_files/TCA/Logwood_ca3.WP6 TINA KIRCHNER MONTZ VS. CHRISTIAN ANDREW MONTZ Court:TCA Attorneys: DAVID H. HORNIK, 222 Second Avenue North Suite 350M Nashville, Tennessee 37201-1649 Attorney for Plaintiff/Counter-Defendant/Appellee ROSEMARY E. PHILLIPS 429 Church Street P.O. Box 590 Goodlettsville, Tennessee 37070-0590 Attorney for Defendant/Counter-Plaintiff/Appellant Judge:FRANKS First Paragraph: In this divorce action, the husband has raised these issues on appeal: 1. Whether the Court erred in awarding custody of the minor child to the mother? 2. Whether the Court erred in setting child support? 3. Whether the Court erred in the division of the debt? 4. Whether the court erred in not awarding husband's attorney's fees? The parties were married in October of 1994, and one child was born to the marriage on September 21, 1995. The father insists that the Trial Court erred in awarding custody of the child to the mother. http://www.tba.org/tba_files/TCA/Montzt_opn.WP6 NATIONSBANK OF TENNESSEE VS. FORMPAK, INC. and RON CAMPBELL Court:TCA Attorneys: Ron Cunningham, Knoxville, for Appellant. C. Mark Warren, Chattanooga, for Appellees. Judge:INMAN First Paragraph: This is an action to recover on a promissory note for borrowed funds, the payment of which was secured by a lien on a vehicle. Beyond this point the facts become obscured; there is no transcript, and no statement of the evidence. http://www.tba.org/tba_files/TCA/Nationsb_ca3.WP6 BRUCE A. SIMPSON VS. BICENTENNIAL VOLUNTEERS, INC., PARTNERS FOR ENVIRONMENTAL SOLUTIONS, INC., INNOVATIVE TECHNIQUES, L.L.C. Court:TCA Attorneys: MICHAEL M. CASTELLARIN 95 White Bridge Road, Suite 509 Nashville, Tennessee 37205 Attorney for Plaintiff/Appellant JANET L. HOGAN 620 W. Hill Avenue Knoxville, Tennessee 37902 Attorney for Defendant/Appellee Bicentennial Volunteers, Inc. JOSEPH P. RUSNAK 315 Deaderick Street Nashville, Tennessee 37238 Attorney for Defendant/Appellee Partners for Environmental Solutions, Inc. Judge:CANTRELL First Paragraph: This is an action for payment of the costs of renovating a truck and trailer to be used as a mobile solid waste exhibit. The plaintiff sued the parties involved in developing the exhibit on the basis of contract and quantum meruit and sought to enforce the liens provided by Tenn. Code Ann. S 66-19-101 and Tenn. Code Ann. S 66-19-103. The Circuit Court of Davidson County granted summary judgment to the owner of the truck and trailer and certified the dismissal as a final judgment under Rule 54.02, Tenn. R. Civ. Proc. Because we find there are factual disputes affecting the quantum meruit claim against the owner, we reverse and remand for a consideration of the merits on this theory. http://www.tba.org/tba_files/TCA/Simpsba_opn.WP6 STATE OF TENNESSEE EX REL., NEIL PLEMONS, MELANIE GOODWIN, DONNA GODDARD, HOMER HARMON, DOUGLAS SMITH, WINDELL BULLARD, JERRY KERLEY, LARRY FUTRELL, FRANK COLEY, DONALD SCANDLYN, JACK MATLOCK, JEFF MIZE, LUTHER MANNING, RALPH POTTER, and DARRELL GODARD VS. AROLD L.. WESTER, Mayor of the City of Harriman, Tennessee Court:TCA Attorneys: GERALD LARGEN, Kingston, for Plaintiffs-Appellants. JON G. ROACH, WATSON, HOLLOW & REEVES, P.L.C., Knoxville, for Defendant-Appellee. Judge:FRANKS First Paragraph: The Trial Judge dismissed plaintiffs' ouster petition filed against Harold L. Wester, the Mayor of the City of Harriman, and plaintiffs have appealed. The Plaintiffs, a group of citizens of the City of Harriman, brought this action alleging that the Mayor had violated his oath of office. The defendant, having been elected as Mayor in 1995, has served in public office prior to that election, having been elected Mayor in 1983 and again in 1991, and having been elected to the City Council in 1971, 1973, 1977, and 1981. http://www.tba.org/tba_files/TCA/Stoftnvw_opn.WP6 STATE OF TENNESSEE VS. GUY BINETTE Court:TCCA Attorneys: FOR THE APPELLANT: JERRY S. SLOAN 730 Cherry Street, Suite C Chattanooga, TN 37402-1917 FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter ELLEN H. POLLACK Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM H. COX III District Attorney General JOSEPH A. REHYANSKY Assistant District Attorney General 600 Market Street, Suite 310 Chattanooga, TN 37402 Judge:RILEY First Paragraph: Defendant, Guy Binette, was indicted for driving under the influence and filed a motion to suppress evidence challenging the validity of the traffic stop. The trial court denied the motion. Defendant subsequently pled guilty but reserved a certified question of law regarding the validity of the initial stop. We find there were sufficient articulable facts to support the officer's stop of defendant, and the trial court properly denied the motion to suppress. The judgment of the trial court is AFFIRMED. http://www.tba.org/tba_files/TCCA/Binetteg_opn.WP6 DISSENTING OPINION: http://www.tba.org/tba_files/TCCA/Binettgu_dis.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! 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