July 27, 1999 Volume 5 -- Number 105 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):   01 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 14 New Opinion(s) from the Tennessee Court of Appeals 09 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 JOHN O. PEOPLES VS. A & M EXPRESS, INC. and LUMBERMEN'S UNDERWRITING ALLIANCE Court:TSC JUDGMENT First Paragraph: This case is before the Court upon motion for review pursuant to Tenn. Code Ann. S 50-6-225(e)(5)(B), 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 motion for review is not well taken and should be denied; 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 evenly by the parties, for which execution may issue if necessary. IT IS SO ORDERED. http://www.tba.org/tba_files/TSC/Peop_jo.WP6 BOWDEN BUILDING CORPORATION VS. TENNESSEE REAL ESTATE COMMISSION, ET AL Court:TCA Attorneys: PAUL G. SUMMERS Attorney General & Reporter MICHAEL E. MOORE Solicitor General CHARLES L. LEWIS Assistant Attorney General Nashville, Tennessee Attorneys for Appellants RICHARD GLASSMAN JOHN BARRY BURGESS HEATHER W. THOMPSON GLASSMAN, JETER, EDWARDS & WADE, P.C. Memphis, Tennessee Attorneys for Appellee Judge:HIGHERS First Paragraph: The Tennessee Real Estate Commission ("the Commission"), the individual members of that commission ("the Commission members"), and the Tennessee Attorney General sought permission to appeal from the trial court's interlocutory order denying their motion to dismiss. We granted their application for permission to appeal and, for the reasons hereafter stated, we reverse the trial court's denial of the Defendants' motion to dismiss. http://www.tba.org/tba_files/TCA/Bowdenbu_opn.WP6 SUZANNE KAY BURLEW VS. BRAD STEVEN BURLEW Court:TCA Attorneys: For the Plaintiff For the Defendant /Counterdefendant/ /Counterplaintiff/ Appellant/Counterappellee Appellee, Counterappellant: Stevan L. Black William W. Dunlap, Jr. Vickie Hardy Jones Memphis, Tennessee Memphis, Tennessee Judge:LILLARD First Paragraph: This is a divorce case with issues regarding custody and alimony. The trial court awarded the parties joint custody of their minor child, with the wife as primary custodial parent except during designated time periods. The trial court awarded the wife alimony in solido, but no alimony in futuro. The wife appeals the trial court's rulings regarding child custody and visitation, as well as alimony. Husband appeals the trial court's order regarding alimony. We affirm in part, reverse in part, modify and remand. http://www.tba.org/tba_files/TCA/Burlewsk_opn.WP6 REECE HOWELL, III, RICHARD HOWELL and wife, MITZI S. HOWELL VS. C. WELDON HOWELL and wife, LILLY L. HOWELL Court:TCA Attorneys: John J. Archer of Nashville For Appellees Henry, Henry & Speer, P.C., of Pulaski For Appellants Judge:CRAWFORD First Paragraph: This appeal involves a dispute among landowners over two small parcels of property. Defendants/appellants, C. Weldon and Lilly Howell (collectively hereinafter "Weldon"), appeal the trial court's order partially granting judgment in favor of plaintiff/appellee, C. Reece Howell, III (Reece). The parties to this appeal are closely related as Reece and Weldon are nephew and uncle respectively. Reece owns approximately seventy (70) acres known as the North and South Patrick tracts (Patrick tracts) contiguous on the north and east with Weldon's land of approximately twenty (20) acres known as the UCL tract. A plat of the properties is attached as an addendum to this Opinion. http://www.tba.org/tba_files/TCA/Howellre_opn.WP6 STEPHEN LEWIS VS. STEPHANIE LEWIS Court:TCA Attorneys: For the Plaintiff/Appellee: For the Defendant/Appellant: F. J. Runyon, III Carrie W. Kersh Clarksville, Tennessee Clarksville, Tennessee Judge:LILLARD First Paragraph: This is a divorce and child custody case. The wife challenges the trial court's order awarding the husband custody of the parties' minor child, as well as the trial court's decision to grant the divorce to the husband on the grounds of inappropriate marital conduct. We affirm. http://www.tba.org/tba_files/TCA/Lewiss_opn.WP6 MONTGOMERY COUNTY, TENNESSEE VS. GEORGIA NICHOLS, et al Court:TCA Attorneys: LARRY B. WATSON WATSON & ATKINS, P.C. Clarksville, Tennessee Attorney for Appellants GREGORY D. SMITH Clarksville, Tennessee Attorney for Appellee Judge:HIGHERS First Paragraph: Georgia Nichols, Justine Jones and Charles Nichols, both individually and as guardian and/or conservator for Georgia Nichols (hereafter collectively referred to as "the Defendants"), appeal from an order that granted a Rule 60 motion filed by Montgomery County ("the County") subsequent to an order of voluntary nonsuit. This order directed the repayment of $101,000 that had been withdrawn from the trial court clerk by the Defendants. For the reasons hereafter stated, we affirm. http://www.tba.org/tba_files/TCA/Montgome_opn.WP6 THE STATE OF TENNESSEE, ex rel., THE CITY OF LAFAYETTE, TENNESSEE, A municipal corporation VS. RONALD J. MOWELL, LINDA J. MOWELL and DAVID R. WILSON Court:TCA Attorneys: LISA COTHRON STINNETT 100 W. Locust Street Lafayette, Tennessee 37083 Attorney for Plaintiff/Appellant B. KEITH WILLIAMS 102 East Main Street Lebanon, Tennessee 37087 Attorney for Defendant/Appellee Judge:CANTRELL First Paragraph: In this condemnation case the only question is whether there is any material evidence to support the jury's verdict. We affirm the judgment below. http://www.tba.org/tba_files/TCA/Mowellrj_opn.WP6 TIM OAKLEY and wife, MONICA OAKLEY, HELEN THOMAS, FRANK GRUBBS and wife, BRENDA GRUBBS, DANIEL THOMAS and wife, SHERRY THOMAS, and JAN FOX VS. L. SCOTT LANG, VS. LAWYERS TITLE INSURANCE CORPORATION, FREELANCE SEARCHES, INC., and SEAN MAHONEY Court:TCA Attorneys: Judge:CANTRELL First Paragraph: The question we must decide is whether the defendant's home violated a subdivision restriction against modular homes. The Chancery Court of Sumner County held that the plaintiffs had failed to prove their case. We affirm. http://www.tba.org/tba_files/TCA/Oakleyt_opn.WP6 STATE OF TENNESSEE VS. COREY LEMONT POWELL Court:TCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MICHAEL E. SCHOLL JOHN KNOX WALKUP 200 Jefferson Ave, Ste 202 Attorney General & Reporter Memphis, TN 38103 R. STEPHEN JOBE Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 ELIZABETH T. RICE District Attorney General CHRISTOPHER MARSHBURN Assistant District Attorney General 302 Market Street Somerville, TN 38068 Judge:WOODALL First Paragraph: In this case, the Defendant, Corey Lemont Powell, appeals as of right from the judgments of conviction for felony murder and especially aggravated robbery. Indicted and tried for felony murder, premeditated first degree murder, and especially aggravated robbery, the jury, on these counts, found him guilty of felony murder, second degree murder, and especially aggravated robbery. The trial court merged the second degree murder conviction with the felony murder and Defendant was given a life sentence. The trial court sentenced him to serve fifteen (15) years for the conviction of especially aggravated robbery, concurrent to the sentence of life imprisonment. Defendant presents nine (9) issues for appellate review. This court initially affirmed the convictions. The Defendant then timely filed a Petition to Rehear, which was granted. The original opinion and judgment were vacated. The court ordered the trial court to make certain findings of fact regarding Defendant's issue challenging admissibility of his confession. After further briefing following the trial court's supplemental findings of fact, the case was then reargued. After review of the entire record, briefs and arguments of counsel, and applicable law, we find that suppression of Defendant's confession is required, and we therefore reverse the judgments of the trial court and remand this case for a new trial. http://www.tba.org/tba_files/TCA/Powellcl_opn.WP6 E. L. REID VS. STATE OF TENNESSEE Court:TCA Attorneys: For the Claimant/Appellant: For the Respondent/Appellee: E. L. Reid, Pro Se John Knox Walkup Nashville, Tennessee Sohnia W. Hong Nashville, Tennessee Judge:HIGHERS First Paragraph: This is a prisoner property loss claim. The Tennessee Claims Commission dismissed the claim. We affirm. http://www.tba.org/tba_files/TCA/Reidel_opn.WP6 BOBBY RAY SEARS VS. METROPOLITAN NASHVILLE AIRPORT AUTHORITY and REPUBLIC PARKING SYSTEMS, INC Court:TCA Attorneys: For Bobby Ray Sears: For Metropolitan Nashville Airport Authority: Mike W. Binkley Nashville, Tennessee D. Kirk Shaffer Nancy A. Vincent Stokes & Bartholomew Nashville, Tennessee For Republic Parking Systems, Inc.: Gerald C. Wigger Nashville, Tennessee Judge:KOCH First Paragraph: This appeal involves a motorcycle rider who was injured by the descending wooden arm of a traffic control device at an exit from the short term parking area of the Nashville International Airport. The motorcyclist filed suit in the Circuit Court for Davidson County against the Metropolitan Airport Authority and the operator of the airport parking facilities, alleging that they had failed to adequately warn him of the potentially dangerous condition at the exit. The trial court granted the defendants' motions for summary judgment, and the rider appealed. We have determined that the defendants are not entitled to a judgment as a matter of law based on this record and, therefore, vacate the summary judgment order and remand the case for further proceedings. http://www.tba.org/tba_files/TCA/Searsbr_opn.WP6 STATE OF TENNESSEE VS. WANDA JOYCE SMITH Court:TCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ANGELA R. SCOTT PAUL G. SUMMERS P.O. Box 408 Attorney General & Reporter Henderson, TN 38340 J. ROSS DYER Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General ED NEAL McDANIEL -and- JERRY NORWOOD Asst. District Attorneys General 302 Market St. Somerville, TN 38068 Judge:PEAY First Paragraph: A jury found the defendant guilty of driving under the influence (DUI). The defendant filed a motion for new trial, which was denied. She now appeals, arguing that the trial court erred in denying her motion to suppress because the arresting officer stopped her vehicle with neither probable cause nor reasonable suspicion. She also argues that the trial court abused its discretion by admitting into evidence her blood alcohol test results because the State failed to establish chain of custody and exclude the possibility of tampering. Finding no merit in these arguments, we affirm. http://www.tba.org/tba_files/TCA/Smithwj_opn.WP6 SPECTRA PLASTICS, INC., and J. GOODMAN ASSOCIATES, INC. VS. NASHOBA BANK Court:TCA Attorneys: JOHN E. TOMA, JR. NEWMAN, FREYMAN & KLEIN, P.C. St. Louis, Missouri JERRY SCHATZ MONYPENY, SIMPSON, WALKER & SCHATZ Memphis, Tennessee Attorneys for Appellants LEO BEARMAN, JR. EUGENE J. PODESTA, JR. BAKER, DONELSON, BEARMAN & CALDWELL Memphis, Tennessee Attorneys for Appellee Judge:HIGHERS First Paragraph: Spectra Plastics, Inc. ("Spectra") has appealed from the trial court's grant of summary judgment to Nashoba Bank ("Nashoba") in this lender liability lawsuit. Based upon the following, we affirm the trial court's grant of summary judgment to Nashoba. http://www.tba.org/tba_files/TCA/Spectrap_opn.WP6 THOMSON AND THOMSON and CONSTRUCTION PRODUCTS, INC. VS. RUSS BURCZAK, d/b/a BURCZAK PAVEMENT Court:TCA Attorneys: Jesse H. Ford, III, FORD & MAYO, Jackson, Tennessee, for Plaintiffs/Appellants. L. L. Harrell, Jr., HARRELL & HARRELL, Trenton, Tennessee for Defendant/Appellee. Judge:FARMER First Paragraph: In this action filed against Defendant Russ Burczak for amounts due under accounts maintained by the Plaintiffs, the trial court awarded $2,227.07 to Plaintiff Thomson and Thomson ("Thomson") and $2,734.00 to Plaintiff Construction Products, Inc. ("CPI"). Thomson and CPI appeal the amount of the judgments, arguing that the trial court erred with respect to its calculation of the amount of credit that Mr. Burczak should have received for subcontracting work that he performed for Thomson. Because the evidence does not preponderate against this calculation, we affirm the ruling of the trial court. http://www.tba.org/tba_files/TCA/Thomson_opn.WP6 TENNESSEE FARMERS MUTUAL INSURANCE COMPANY VS. MATTIE BRADFORD, NOLAN BRADFORD and wife, JACKIE BRADFORD Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendants/Appellees: Charles L. Trotter, Jr. Bill R. Barron Huntingdon, Tennessee J. Mark Johnson Trenton, Tennessee James Belew Webb Milan, Tennessee Judge:LILLARD First Paragraph: This is a declaratory judgment action brought by an insurance company under a homeowner's policy against the insured, as well as her son and her daughter-in-law. The insured's house was damaged by fire. The insurance company contended that the fire was intentionally set. The insurance company alleged that the insured failed to cooperate with the investigation by declining to direct her son and daughter-in-law to submit to an examination under oath, and also contended that the son and daughter-in-law were required to submit to examination under oath. The insurance company filed a motion for leave to file a third-party complaint against the son and daughter-in-law. The trial court denied the insurance company's motion for leave to file a third party complaint, granted a motion to dismiss in favor of the son and daughter-in law, and granted the insured's motion for summary judgment. We affirm. http://www.tba.org/tba_files/TCA/Tnfarmer_opn.WP6 RICHARD ANTHONY VS. STATE OF TENNESSEE Court:TCCA ORDER Judge:WOODALL First Paragraph: This is a declaratory judgment action brought by an insurance company under a homeowner's policy against the insured, as well as her son and her daughter-in-law. The insured's house was damaged by fire. The insurance company contended that the fire was intentionally set. The insurance company alleged that the insured failed to cooperate with the investigation by declining to direct her son and daughter-in-law to submit to an examination under oath, and also contended that the son and daughter-in-law were required to submit to examination under oath. The insurance company filed a motion for leave to file a third-party complaint against the son and daughter-in-law. The trial court denied the insurance company's motion for leave to file a third party complaint, granted a motion to dismiss in favor of the son and daughter-in law, and granted the insured's motion for summary judgment. We affirm. http://www.tba.org/tba_files/TCCA/Anthonyr_799.WP6 STATE OF TENNESSEE VS. MIKIE ASH Court:TCCA Attorneys: For the Appellant: For the Appellee: John Knox Walkup Thomas R. Meeks Attorney General of Tennessee 137 Franklin Street and Clarksville, TN 37041 Timothy Behan (AT TRIAL) Assistant Attorney General of Tennessee 425 Fifth Avenue North Gregory D. Smith Nashville, TN 37243-0493 One Public Square, Suite 321 Clarksville, TN 37040 John Wesley Carney, Jr. (ON APPEAL) District Attorney General and Arthur Bieber Assistant District Attorney General 204 Franklin Street Clarksville, TN 37041 Judge:TIPTON First Paragraph: The state appeals as of right from the Montgomery County Circuit Court's order dismissing criminal trespass and marijuana possession charges against the defendant upon its determination that he was illegally arrested and searched. The state contends that the defendant was lawfully arrested for criminal trespass and that the marijuana discovered was lawfully found pursuant to the arrest. We reverse the dismissal order and remand the case to the trial court for a determination of whether the defendant had notice that he did not have the owner's consent to be on the property on which he was arrested for trespassing. http://www.tba.org/tba_files/TCCA/Ashm_opn.WP6 STATE OF TENNESSEE VS. JOE FRANK BOYD Court:TCCA Attorneys: FOR THE APPELLANT: CARTHEL L. SMITH, JR. 85 East Church St. Lexington, TN 38351 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter R. STEPHEN JOBE Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 ROBERT ("GUS") RADFORD District Attorney General JERRY W. WALLACE Assistant District Attorney General P.O. Box 637 Parsons, TN 38363 Judge:RILEY First Paragraph: Defendant, Joe Frank Boyd, pled guilty to one hundred forty-one counts of Class C, D and E thefts. Sentences for each offense were agreed upon in defendant's plea agreement. However, the manner of service and the consecutive/concurrent nature of service were left to the trial court. After a hearing, the trial court ordered partial consecutive sentencing for an effective sentence of eighteen years. In this appeal as of right, defendant challenges the trial court's imposition of consecutive sentencing. Upon our review of the record, we AFFIRM the trial court's decision to impose partial consecutive sentencing. However, because the record contains discrepancies as to the actual number of years defendant was ordered to serve, we must REMAND this matter for entry of proper judgments. http://www.tba.org/tba_files/TCCA/Boydjf_opn.WP6 STATE OF TENNESSEE VS. REGINALD COBB Court:TCCA ORDER Judge:WOODALL First Paragraph: This matter is before the Court upon the state's motion requesting that the judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules. Upon reviewing the record, the appellant's brief, and the state's motion, we find that it is an appropriate matter for affirmance under Rule 20. http://www.tba.org/tba_files/TCCA/Cobbr_ord.WP6 WILLIAM MICHAEL LEE, a/k/a WILLIAM LEE DRUMBARGER VS. FRED RANEY, Warden Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: William Michael Lee, pro se Michael E. Moore LCCX - Site 01 - 98676 Solicitor General Lauderdale County Correctional Complex P. O. Box 1000 J. Ross Dyer Henning, TN 38041-1000 Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 C. Phillip Bivens District Attorney General P. O. Drawer E Dyersburg, TN 38024 Judge:LAFFERTY First Paragraph: The petitioner, William Michael Lee, (a.k.a. William Lee Drumbarger), appeals as of right from the trial court's dismissal of his petition for writ of habeas corpus. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Leewm_opn.WP6 STATE OF TENNESSEE VS. RODERICK POLK Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: David H. Crichton Paul G. Summers P. O. Box 651 Attorney General & Reporter Bolivar, TN 38008 J. Ross Dyer Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 Elizabeth T. Rice District Attorney General Jerry W. Norwood Assistant District Attorney General 302 East Market Street Somerville, TN 38068 Judge:LAFFERTY First Paragraph: The appellant, Roderick Polk, herein referred to as "the defendant," appeals as of right from his sentence for the delivery of a Schedule II controlled substance, cocaine, a Class C felony, imposed by the Hardeman County Circuit Court. The trial court sentenced the appellant as a Range I, standard offender to forty months in the Department of Correction. http://www.tba.org/tba_files/TCCA/Polkr_opn.WP6 JAMES SHIELDS VS. STATE OF TENNESSEE, Court:TCCA ORDER Judge:WOODALL First Paragraph: This matter is before the Court upon the state's motion to affirm the judgment of the trial court pursuant to Rule 20, Rules of the Tennessee Court of Criminal Appeals. After reviewing the state's motion, the appellant's brief, and the record on appeal, the Court finds that this is an appropriate matter for affirmance under Rule 20. http://www.tba.org/tba_files/TCCA/Shieldsj_799.WP6 STATE OF TENNESSEE VS. CHARLES WOODRUFF Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: C. MICHAEL ROBINS PAUL G. SUMMERS 46 North Third Street Attorney General and Reporter Suite 719 Memphis, TN 38103 R. STEPHEN JOBE (ON APPEAL) Assistant Attorney General 425 Fifth Avenue North TOM C. CRIDER Nashville, TN 37243 District Public Defender 107 S. Court Square CLAYBURN L. PEEPLES Trenton, TN 38382 District Attorney General (AT TRIAL) BRIAN W. FULLER Assistant District Attorney General 110 S. College Street, Suite 200 Trenton, TN 38382 Judge:WELLES First Paragraph: The Defendant, Charles Woodruff, was indicted by the Gibson County Grand Jury on September 15, 1997 on four charges, all arising from a single drug transaction: possession of cocaine with intent to sell or deliver, delivery of cocaine, sale of cocaine, and possession of cocaine. On May 22, 1998, the Defendant was tried before a jury and found guilty of the sale of cocaine. The trial court sentenced him as a Range III persistent offender to ten years incarceration, and as fixed by the jury, he was fined $2,000. Pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, the Defendant now appeals his conviction, presenting only one issue for our review: whether his indictment was void for failure to sufficiently allege a culpable mental state. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Woodch_opn.WP6 STATE OF TENNESSEE VS. OLIVIA E. WASHBURN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN KNOX WALKUP GEORGE M. GOOGE Attorney General & Reporter Public Defender MARVIN E. CLEMENTS, JR. VANESSA D. KING Assistant Attorney General Assistant Public Defender 425 Fifth Avenue North 227 West Baltimore Nashville, TN 37243 Jackson, TN 38301 JAMES G. WOODALL District Attorney General 225 Martin Luther King Drive Jackson, TN 38302 BILL R. MARTIN Assistant District Attorney General 777 West Church Street Lexington, TN 38351 District Attorney General Judge:BEASLEY First Paragraph: The Henderson County grand jury returned a two-count indictment against the defendant, Olivia E. Washburn, charging her with possession of marijuana and possession of drug paraphernalia. After a pretrial hearing on the defendant's motion to suppress evidence, the trial court entered an order suppressing the marijuana but denying the motion to suppress the drug paraphernalia. http://www.tba.org/tba_files/TCCA/Wshbrnoe_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. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! Would you like to receive the TBALink Opinion-Flash free each day by e-mail? 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