July 13, 1999 Volume 5 -- Number 097 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 10 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 ALLEN BULLARD and WANDA BULLARD VS. DEWAYNE SCOTT AND RHONDA SCOTT Court:TCA Attorneys: For Appellants For Appellees DONALD MART LASLEY DAVID W. WALLACE Chattanooga, Tennessee Chattanooga, Tennessee Judge:SUSANO First Paragraph: This controversy focuses on a subdivision lot that is owned by numerous tenants in common. The lot in question, Lot 10, with dimensions of 196.14' x 100.4' x 245' x 160.2', is located in Thatcher Shore Acres Subdivision in Hamilton County. Significantly, it has water access to Chickamauga Lake. In 1981, it was conveyed to the plaintiffs or their predecessors in title, 38 of the 39 property owners of Thatcher Shore Acres Subdivision, by the subdivision's developer, James C. Thatcher. By such conveyance, each of the grantees received an undivided 1/39th interest in Lot 10. Such an interest -- a 1/39th -- was also conveyed to a predecessor in title of defendants Dewayne and Rhonda Scott ("the Scotts"). http://www.tba.org/tba_files/TCA/Bullarda_opn.WP6 IN THE ESTATE OF MAX CHRISTIAN CARPENTER, GRACE CARPENTER VS. IN RE: SULLIVAN and LUCCHESI Court:TCA Attorneys: DAVID M. SULLIVAN, Memphis, pro se. THOMAS E. HANSOM, Memphis, for Appellant/Cross-Appellee, Ronald Lucchesi. Judge:FRANKS First Paragraph: This action is based on a dispute between two attorneys over the division of attorneys' fees. The attorneys' fees were generated by representation of the Estate in a civil rights action, which was settled, and the law firm which was to distribute the attorneys' fees filed a Complaint for Interpleader and Declaratory Relief. Both Sullivan, appellee, and Lucchesi, appellant, answered the Interpleader. Lucchesi requested the court divide the fees equally between the two attorneys, and Sullivan requested that he be awarded 90% of the fees. The Estate filed an Answer to the Complaint, asserting that Lucchesi's request for one-half of the fee is in violation of DR 2-106, and that his portion of the fee should be awarded to the Estate. http://www.tba.org/tba_files/TCA/Carpentr_opn.WP6 DON DAY and KIM DAY, on behalf of themselves and all others similarly situated VS. GENERAL MOTORS ACCEPTANCE CORPORATION Court:TCA Attorneys: GORDON BALL, Knoxville, for Plaintiffs-Appellants. STEPHEN G. ANDERSON and ANDREW L. COLOCOTRONIS, BAKER, DONELSON, BEARMAN & CALDWELL, P.C., Knoxville, for Defendant-Appellee. Judge: FRANKS First Paragraph: This action was dismissed by the Trial Judge for failure to state a claim upon which relief could be granted, pursuant to T.R.C.P. S12.02(6). The alleged facts in this case are identical in all material respect, to the alleged facts in Harvey v. Ford Motor Credit Co., 1999 WL 356301 (Tenn. App.). http://www.tba.org/tba_files/TCA/Dayd_opn.WP6 GEORGE DERRYBERRY VS. SARAH ELIZABETH DERRYBERRY Court:TCA Attorneys: VIRGINIA A. SCHWAMM OF KNOXVILLE FOR APPELLANT WILLIAM H. HORTON OF CHATTANOOGA FOR APPELLEE Judge:GODDARD First Paragraph: Sarah Elizabeth Derryberry appeals a divorce judgement entered in the Circuit Court for Hamilton County and raises various issues for our consideration. Mr. Derryberry also raises issues in his reply brief. http://www.tba.org/tba_files/TCA/Derrybeg_opn.WP6 ANNA MAY FAIR VS. CHARLES FULTON, M.D., and INDIAN PATH HOSPITAL, INC., d/b/a HCA INDIAN PATH MEDICAL CENTE Court:TCA Attorneys: Lon V. Boyd, Kingsport, for Appellant. M. Lacy West and Julia C. West, Kingsport, for Appellee Indian Path Hospital. Richard M. Currie, Jr., Kingsport, for Appellee Charles Fulton, M.D. Judge:INMAN First Paragraph: This is a malpractice action against an emergency room physician. The plaintiff alleged that on April 17, 1994 she sought treatment at the emergency room of Indian Path Hospital for severe chest pains which the defendant attributed to a fractured rib. He obtained no electrocardiogram. Three days later she returned to the emergency room suffering from chest pains. Another physician diagnosed her condition as congestive heart failure, and advised her that she had no broken rib. She alleged that the defendant was negligent in his diagnosis and treatment of her on April 17, and that he failed to exercise proper care and skill, resulting in "grievous bodily injuries." http://www.tba.org/tba_files/TCA/Fair-ann_ca3.WP6 MIKE HARVEY, on behalf of himself and all others similarly situated VS. FORD MOTOR CREDIT COMPANY Court:TCA Attorneys: GORDON BALL, Knoxville, for Plaintiff-Appellant. STEVEN D. LIPSEY, STONE & HINDS, P.C., Knoxville, and THOMAS M. BYRNE and DANIEL H. SCHLUETER, SUTHERLAND, ASBILL & BRENNAN, LLP, Atlanta, for Defendant-Appellee. PAUL G. SUMMERS, Tennessee Attorney General and Reporter, and TIMOTHY C. PHILLIPS, Assistant Attorney General, Nashville, Amicus Curiae for the State of Tennessee. Judge:FRANKS First Paragraph: Plaintiff has filed a Petition for Rehearing in response our opinion in Harvey v. Ford Motor Credit Co., 1999 WL 356301 (Tenn.App). Plaintiff argues that the Court misinterpreted the term "quoted Ford Motor Credit Rates" in his Amended Complaint. He argues that the term "quoted Ford Motor Credit Rates" refers to the final rate quoted to the consumer by the dealer. In other sections of the Amended Complaint, the term "quoted rates" refers to the initial rates set by the defendant and not the rates given to the consumer. In another portion of the Amended Compliant, however, the plaintiff states that the defendant "instructs and/or permits its dealers to inform consumers that the interest rate quoted to them is a fixed Ford Motor Credit rate, when in fact it is not." http://www.tba.org/tba_files/TCA/Harvyvfd_opn.WP6 NATIONAL GAS DISTRIBUTORS VS. SEVIER COUNTY UTILITY DISTRICT of Sevier County, Tennessee, VS. PAUL G. SUMMERS, Attorney General and Reporter for the State of Tennessee Court:TCA Attorneys: DONALD K. VOWELL, VOWELL & ASSOCIATES, Knoxville, for Plaintiff-Appellant. ROBERT E. COOPER, JR., and W. SCOTT SIMS, BASS, BERRY & SIMS, PLC., Nashville, and RONALD E. SHARP, SHARP & RIPLEY, Sevierville, for Defendant-Appellee. PAUL G. SUMMERS, Attorney General and Reporter, MIKE E. MOORE, Solicitor General, and JANET M. KLEINFELTER, Senior Counsel, Financial Division, Nashville, for Intervening Defendant-Appellee. Judge:FRANKS First Paragraph: Plaintiff appeals from a T.R.C.P. 12.02(6), dismissal of its complaint. Plaintiff's principal place of business is in Knoxville, Tennessee, and it sells and distributes propane in Sevier County, Tennessee. Defendant is a utility district created pursuant to the Tennessee Utility District Law of 1937. http://www.tba.org/tba_files/TCA/Natgas_opn.WP6 AHMED MOAYED PERTEW VS. KATHLEEN RUTH MALONEY PERTEW Court:TCA Attorneys: For Appellant For Appellee KATHLEEN RUTH MALONEY PERTEW AHMED MOAYED PERTEW Pro Se Pro Se East Norwich, New York Leesburg, Virginia Judge:SUSANO First Paragraph: These parties were divorced by judgment entered November 17, 1989. In 1996, they filed competing pleadings seeking various post-divorce relief. The trial court, following a hearing on April 15, 1997, granted a portion of the requested relief in an order entered October 6, 1997. Being dissatisfied with the trial court's order, Kathleen Ruth Maloney Pertew ("Wife") appeals, raising several issues. In order to reach these issues, it is necessary to review, in some detail, the pertinent procedural history of this case. http://www.tba.org/tba_files/TCA/Pertewam_opn.WP6 STATE OF TENNESSEE, DEPT. OF CHILDREN'S SERVICES VS. MURDIS (nmn) PHILLIPS and LORETTA COOK PHILLIPS, IN THE MATTER OF: Curtis Lee Phillips, dob 9/30/90 Emma Jay Phillips, dob 10/03/94 Children Under Eighteen Years of Age Court:TCA Judge:INMAN First Paragraph: Murdis Phillips and Loretta Cook Phillips appeal from an order of the Anderson County Juvenile Court terminating their parental rights to their two children, Curtis Lee Phillips (DOB 9/30/90) and Emma Jay Phillips (DOB 10/03/94). We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/Phillips_ca3.WP6 ESTATE OF J.P. WALKER VS. TENNESSEE DEPARTMENT OF REVENUE and UNITED STATES OF AMERICA Court:TCA Attorneys: For Appellant For Appellee PAUL G. SUMMERS WILLIAM S. ESTABROOK Attorney General and Reporter ROBERT L. BAKER Nashville, Tennessee Tax Division Department of Justice M. TY PRYOR Washington, D.C. Assistant Attorney General Nashville, Tennessee CARL K. KIRKPATRICK United States Attorney, Eastern District of Tennessee Knoxville, Tennessee Judge:SUSANO First Paragraph: This appeal requires us to determine whether the claim of the United States against the Estate of J.P. Walker ("the Estate") for federal income and estate taxes is entitled to priority treatment as against the Tennessee Department of Revenue's claim for state inheritance taxes. The trial court -- the Sevier County Probate Court -- held, pursuant to the Federal Insolvency Statute, 31 U.S.C.A. S 3713, that the United States was entitled to priority as to the remaining assets of the Estate. The Department of Revenue appeals, contending that its inheritance tax claim is on an equal footing with the federal claim and, therefore, should share pro rata in the distribution of the Estate's remaining assets. http://www.tba.org/tba_files/TCA/Walkerjp_opn.WP6 STATE OF TENNESSEE VS. ROGER MORRIS GARDNER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: GALE K. FLANARY JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter 2nd Judicial District P. O. Box 839 TODD R. KELLEY Blountville, TN 37617 Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 GREELEY WELLS District Attorney General BARRY STAUBUS LISA CROCKETT Assistant Attorney General P. O. Box 526 Blountville, TN 37617 Judge:SMITH First Paragraph: On September 30, 1997, a Sullivan County jury convicted Appellant Roger Morris Gardner of one count of attempted aggravated kidnapping. After a sentencing hearing on November 18, 1997, the trial court sentenced Appellant as a Range II multiple offender to eight years in the Tennessee Department of Correction. Appellant challenges his conviction, raising the following issues: 1) whether the evidence was sufficient to support his conviction; 2) whether the trial court should have granted a mistrial because the jurors may have seen Appellant in the custody of some bailiffs during a recess in the trial; 3) whether the trial court properly instructed the jury on flight; 4) whether the trial court properly instructed the jury on admissions against interest; and 5) whether Appellant's right to a speedy trial was violated. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Gardnero_opn.WP6 STATE OF TENNESSEE VS. STANLEY WARREN MILLS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: TOM LANDIS PAUL G. SUMMERS Suite 327 Attorney General & Reporter 744 McCallie Avenue Chattanooga, TN 374063 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 BILL COX District Attorney General RODNEY STRONG Assistant District Attorney 600 Market Street Chattanooga, TN 37403 Judge:SMITH First Paragraph: On July 25, 1996, Juvenile Court of Hamilton County charged Appellant with the first degree murder of Keith Hood. Appellant was nearly seventeen years old at the time of the murder and was transferred to Criminal Court to be tried as an adult. Appellant was indicted for first degree murder on December 11, 1996. In September of the following year, a jury found Appellant guilty of second degree murder. He was sentenced to twenty years incarceration as a Range I Standard Offender. http://www.tba.org/tba_files/TCCA/Millssta_opn.WP6 PLEASE FORWARD THIS EMAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. 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