August 03, 1999 Volume 5 -- Number 107 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 05 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   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: ANNIE CHRISTINA HARRIS ANNIE CHRISTINA HARRIS, and STEPHANIE DEVONA HAMILTON, VS. WILLIAM THOMAS BLANTON Court:TCA Attorneys: JEFFREY J. MILLER 427 Cummins Station 209 Tenth Avenue South Nashville, Tennessee 37203-0777 Attorney for Petitioners-Appellants WILLIAM B. BRUCE and LOUISE R. FONTECCHIO BRUCE, WEATHERS, CORLEY, DUGHMAN & LYLE 2075 First American Center 315 Deaderick Street Nashville, Tennessee 37238-2075 Attorney for Respondent-Appellee Judge:FRANKS First Paragraph: In this paternity action, the Trial Judge dismissed the complaint on the basis that the statute of limitations had run. Annie Christina Harris, was born May 21, 1978. On September 22, 1998, when Ms. Harris was twenty years old, she and her mother filed a paternity action against William Thomas Blanton, and the Complaint alleged that Mr. Blanton is the father of Ms. Harris. http://www.tba.org/tba_files/TCA/Harrisa_opn.WP6 JAMES HOSALE, d/b/a CLIFFS PLUMBING VS. ROBERT (BOB) WARREN Court:TCA Attorneys: DAN R. ALEXANDER 2016 8th Avenue South Nashville, Tennessee 37204 Attorney for Appellee THOMAS D. FROST 815 South Church Street Murfreesboro, Tennessee 37130 Attorney for Appellant Judge:FRANKS First Paragraph: The defendant appeals from a judgment entered in Circuit Court in favor of the plaintiff in the amount of $6,148.00. Plaintiff is a plumber, and defendant is an engineer who had hired or referred plaintiff several times. William Tarpley operated a construction business known as W.T. Construction, and in February of 1995 Tarpley and defendant formed a limited liability company known as "W & T Construction". Although they dispute the details of the discussion, plaintiff and defendant had a conversation, after which plaintiff contacted Tarpley and began work on a project. http://www.tba.org/tba_files/TCA/Hosalej_opn.WP6 KAREN JEAN (EATHERLY) SMITHSON VS. DAVID RAY EATHERLY Court:TCA Attorneys: For Plaintiff/Appellee: For Defendant/Appellant: Calvin P. Turner Hugh Green Lebanon, Tennessee Lebanon, Tennessee Judge:KOCH First Paragraph: This appeal involves a custody dispute that continued without final resolution for four years over a seven-year-old child. The Circuit Court for Wilson County did not finally adjudicate the child's custody when it divorced the parties in 1994. During the next four years, the trial court entered a series of temporary custody orders embodying different joint custody arrangements notwithstanding both parents' repeated requests for sole custody. Finally, in 1998, the trial court determined that the child should reside primarily with the mother because the father and his second wife were expecting a child. The father asserts on this appeal that the trial court should have awarded him custody because he is comparatively more fit to be the child's custodian. We have determined that the trial court failed to employ proper procedures or criteria in making its custody decision. Therefore, we vacate the order awarding primary physical custody to the mother and remand the case to the trial court for further proceedings. http://www.tba.org/tba_files/TCA/Smithson_opn.WP6 SHARON ANN SMITH VS. ALAN WAYNE SMITH Court:TCA Attorneys: R. E. Lee Davies HARTZOG, SILVA & DAVIES 123 Fifth Avenue North P. O. Box 664 Franklin, Tennessee 37065-0664 Attorney for Plaintiff/Appellee GREGORY D. SMITH FARRIS, WARFIELD & KANADAY, PLC 424 Church Street, Suite 1900 Nashville, Tennessee 37219 Attorney for Defendant/Appellant Judge:CANTRELL First Paragraph: When the parties divorced, the trial court calculated the husband's net income for child support purposes by averaging his salary over a three year period. The wife appealed, arguing that the child support guidelines required that a capital gain of over $200,000 realized by the husband during the same period also be included in the calculation. We agreed, but suggested the trial court could prorate the capital gain over the longer time-frame during which the capital gain income was apparently earned. Upon remand, the trial court took evidence as to the length of that period, and made a fresh calculation, which the husband objects to in this appeal. We affirm the trial court. http://www.tba.org/tba_files/TCA/Smiths_opn.WP6 KERRY THOMPSON VS. TELCO, INC. Court:TCA Attorneys: For the Defendant/Appellant: For the Plaintiff/Appellee: Alan Mark Turk Julie E. Officer Brentwood, Tennessee Nashville, Tennessee Judge:LILLARD First Paragraph: This case involves the alleged breach of an employment contract. The plaintiff employee argued that a letter signed by him and the defendant employer created a five-year employment contract. The trial court found that the letter was an agreement for employment for a five-year term, awarded the employee $62,235 for breach of contract, and required the employee to pay into court unemployment compensation benefits he received. The employer appeals. We reverse and remand. http://www.tba.org/tba_files/TCA/Thompsok_opn.WP6 TERRY W. HOLTSCLAW VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: Terry W. Holtzclaw, pro se Paul G. Summers NECC Annex Attorney General & Reporter P.O. Box 5000 Mountain City, TN 37683 Michael J. Fahey, II Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243 Judge:WADE First Paragraph: The petitioner has appealed the trial court's summary dismissal of his petition for writ of habeas corpus. The state has filed a motion for affirmance pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. Rule 20 allows for summary affirmance when "an opinion would have no precedential value" and "no error of law requiring a reversal .. is apparent on the record." Id. The state notes that the judgment in this case is not a determination of guilt, no material facts are in dispute, there is no error of law requiring reversal, and the evidence does not preponderate against the finding of the trial judge. http://www.tba.org/tba_files/TCCA/Holtsclw_opn.WP6 STATE OF TENNESSEE VS. ANTONIO E. JENKINS Court:TCCA Attorneys: For the Appellant: For the Appellee: Joe M. Brandon, Jr. John Knox Walkup Attorney for Appellant Attorney General and Reporter 304 S. Lowry Street Smyrna, TN 37167 Daryl J. Brand Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 William C. Whitsell, Jr. District Attorney General Third Floor, Judicial Building Murfreesboro, TN 37130 Judge:HAYES First Paragraph: The appellant, Antonio E. Jenkins, appeals the sentencing decision of the Rutherford County Circuit Court following his guilty pleas to four counts of sale of cocaine over .5 grams, a Class B felony. The terms of the plea agreement provided that the appellant would receive an eight year sentence for each count and the court would determine whether concurrent or consecutive sentencing was appropriate, as well as the manner of service of the sentence. In September of 1996, at the first sentencing hearing, the trial court ordered that two of the eight year sentences run consecutively for an effective sixteen year sentence. The court also found the appellant statutorily ineligible for probation. The appellant appealed both the denial of probation and imposition of consecutive sentences. In State v. Antonio E. Jenkins, No. 01C01-9702-CC-00047 (Tenn. Crim. App. at Jackson, Dec. 31, 1997), this court, upon motion by the State conceding eligibility for probation, remanded this case to the trial court to determine whether the appellant was entitled to probation. The issue of consecutive sentences was reserved pending entry of a final order in the trial court. http://www.tba.org/tba_files/TCCA/Jenkinsa_opn.WP6 STATE OF TENNESSEE VS. RANDALL SCOTT Court:TCCA Attorneys: For Appellant: For Appellee: Jeffrey A. DeVasher John Knox Walkup Assistant Public Defender Attorney General & Reporter 1202 Stahlman Building Nashville, TN 37201 Kim R. Helper (on appeal) Assistant Attorney General 425 Fifth Avenue North J. Michael Engle Cordell Hull Building Assistant Public Defender Nashville, TN 37243 1202 Stahlman Building Nashville, TN 37201 William Reed (at trial and on appeal) Roger Moore Assistant District Attorneys General Washington Square Suite 500 222 Second Avenue, North Nashville, TN 37201-1649 Judge:WADE First Paragraph: The defendant, Randall Scott, was convicted of rape of a child and aggravated sexual battery. The trial court imposed twenty-five and ten-year sentences respectively and ordered the sentences to be served consecutively. http://www.tba.org/tba_files/TCCA/Scottrnd_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! 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