August 19, 1999 Volume 5 -- Number 113 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 01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 11 New Opinion(s) from the Tennessee Court of Appeals 05 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 KAREN SULLIVAN VS. BAPTIST MEMORIAL HOSPITAL Court:TSC Attorneys: For the Appellant: For Appellee: Paul E. Prather Stephen H. Biller Steven W. Likens Memphis, Tennessee KIESEWETTER WISE KAPLAN SCHWIMMER & PRATHER, PLC Sara L. Hall Memphis, Tennessee Memphis, Tennessee Judge:ANDERSON First Paragraph: We granted the appeal in this defamation case to determine whether the element of publication is satisfied when an employee is compelled to disclose to a prospective employer the reason given for termination by a former employer. The trial court granted summary judgment to defendants, concluding that the plaintiff's self-published statements failed to satisfy the publication element of defamation. The Court of Appeals reversed, adopting the minority view that self-publication satisfies the publication element when 1) the defendant can reasonably foresee that the plaintiff will be compelled to publish the defamatory statement and 2) the plaintiff is in fact compelled to publish the defamatory statement on subsequent employment applications. http://www.tba.org/tba_files/TSC/Sullivan_opn.WP6 GLENDA JOHNSON VS. NORTH PARK HOSPITAL Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Joseph C. Wilson, III Ronald J. Berke Spears, Moore, Rebman & Williams Berke, Berke & Berke P.O. Box 1749 Suite 1230 Volunteer Building Chattanooga, TN 37401-1749 832 Georgia Avenue Chattanooga, TN 37402 Judge:BYERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. S 50-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in a workers' compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). http://www.tba.org/tba_files/TSC_WCP/Johnsong_wpd.WP6 ROCKY MICHAEL BRUCE and CHERYL BRUCE VS. ANGELA JACOBS Court:TCA Attorneys: G. KLINE PRESTON, IV WASHINGTON SQUARE TWO 222 2ND AVENUE NORTH SUITE 416 NASHVILLE, TENNESSEE 37201 ATTORNEY FOR PETITIONERS/APPELLEES CHARLES S. RAMSEY, JR. 114 NORTH SPRING STREET P.O. BOX 687 MANCHESTER, TENNESSEE 37355 ATTORNEY FOR RESPONDENT/APPELLANT Judge:COTTRELL First Paragraph: This dispute over the custody of a minor child arose after the paternal grandparents filed an intervening petition for child custody. They were granted temporary custody of the child pending a hearing on the matter. After two hearings, the trial court ordered that custody remain with the paternal grandparents pending the results of home studies of each party seeking custody, i.e., the mother and the paternal grandparents. The trial court held additional hearings after receiving the results of the home studies and awarded custody to the paternal grandparents. We affirm the trial court. http://www.tba.org/tba_files/TCA/Bruce3_opn.WP6 JOHN D. CRABTREE, M.D. VS. DAVID T. DODD, M.D. Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendant/Appellee: Steven C. Douse Noel F. Stahl Nashville, Tennessee Joseph R. Wheeler Nashville, Tennessee Judge:LILLARD First Paragraph: This case involves an impaired physician. The plaintiff physician sued the medical director of the Tennessee Medical Association's Impaired Physician Program for allegedly revealing confidential information to the plaintiff's medical malpractice insurance carrier about the plaintiff's alleged alcohol dependency, causing the non-renewal of his insurance policy. The trial court granted summary judgment in favor of the defendant. We affirm. http://www.tba.org/tba_files/TCA/Crabtrej_opn.WP6 LANE DENSON, a minor, b/n/f JOHN DENSON, father, and DEBORAH DENSON, mother; and JOHN DENSON and wife, DEBORAH DENSON VS. DR. RICHARD C. BENJAMIN, Director of Schools for the Metropolitan Nashville Public Schools; FLORENCE KIDD, A Director of Middle Schools Responsible for Walter Stokes Middle School; EVALINA CHEADLE, Principal of Walter Stokes Middle School; METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE FOR THE METROPOLITAN NASHVILLE PUBLIC SCHOOLS; and METROPOLITAN BOARD OF PUBLIC EDUCATION Court:TCA Attorneys: ALAN MARK TURK P. O. Box 3742 Brentwood, Tennessee 37024-3742 Attorney for Plaintiffs/Appellants JAMES L. MURPHY, III DIRECTOR OF LAW OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY MARTHA ZENDLOVITZ METROPOLITAN ATTORNEY 204 Metropolitan Courthouse Nashville, Tennessee 37201 Attorney for Defendants/Appellee Judge:CANTRELL First Paragraph: A ten year old boy was seriously injured at a Nashville middle school when another student tripped him on a stairway during a change of classes. The injured boy's parents sued the Metropolitan Government of Nashville, the Superintendent of Schools, and other school officials for negligent supervision and negligent protection. The trial court granted summary judgment to the defendants. We affirm the trial court. http://www.tba.org/tba_files/TCA/Densonl_opn.WP6 RANDY GENE HAUSKINS and wife, CAMMY HAUSKINS VS. TRI COUNTY ELECTRIC MEMBERSHIP CORPORATION Court:TCA Attorneys: C. TRACEY PARKS Harsh, Parks & Harsh 123 Public Square Gallatin, Tennessee 37066 ATTORNEY FOR PLAINTIFFS/APPELLANTS THOMAS M. DONNELL, JR. JENNIFER A. LAWRENCE Stewart, Estes & Donnell Suite 1401 SunTrust Center 424 Church Street Nashville, Tennessee 37219 ATTORNEYS FOR DEFENDANT/APPELLEE Judge:CAIN First Paragraph: Plaintiffs, Randy Gene Hauskins and Cammy Hauskins, are husband and wife. At the time of the accident resulting in his very serious injuries, Mr. Hauskins was a framing carpenter working for Terry Gregory, subcontractor of Coates Construction Company, in the construction of a new home in Sumner County, Tennessee. The defendant, Tri County Electric Membership Corporation, distributes electric power through distribution lines owned and maintained by Tri County. http://www.tba.org/tba_files/TCA/Hauskins_opn.WP6 HICKORY WOODS ESTATES HOMEOWNERS ASSOCIATION VS. HARRY G. PARMAN Court:TCA Attorneys: Jerry L. Vance of Nashville For Appellant Brigid T. Miller; Baker, Donelson, Bearman & Caldwell of Nashville For Appellee Judge:CRAWFORD First Paragraph: Defendant/Appellant, Harry G. Parman, appeals the order of the trial court denying his motion for summary judgment and granting summary judgment to Plaintiff/Appellee, Hickory Woods Estates Homeowners Association (Association). Hickory Woods Estates is a subdivision in Davidson County, Tennessee, governed by "Amended and Restated Declaration of Covenants, Conditions, and Restrictions for Hickory Woods" (Declaration of Covenants), which is recorded in the Register's Office of Davidson County. http://www.tba.org/tba_files/TCA/Hickwood_opn.WP6 GLENDA JENNINGS, et vir KEITH JENNINGS VS. KENNETH CASE, M.D.; and CASE MEDICAL CLINIC, P.C.; P.C.; W. DAVID STEWART, M.D.; and ASSOCIATED SURGEONS WITH CONCURRING/DISSENTING Opinion Court:TCA Attorneys: ROBERT J. SHOCKEY 2400 Crestmoor Road, Suite 307 Nashville, Tennessee 37215 JAMES E. MOFFITT 1013 Vista Circle Franklin, Tennessee 37067 ATTORNEYS FOR PLAINTIFFS/APPELLANTS ROSE P. CANTRELL GEORGE A. DEAN Parker, Lawrence, Cantrell & Dean 200 Fourth Avenue North 5th Floor, Noel Place Nashville, Tennessee 37219 ATTORNEYS FOR DEFENDANTS/APPELLEES Judge:CAIN First Paragraph: This is a medical malpractice action in which the trial court granted summary judgment to both defendant physicians. The plaintiff has appealed arguing that there existed genuine issues of material fact. We agree with the plaintiff and reverse the decision of the trial court. http://www.tba.org/tba_files/TCA/Jengsgle_opn.WP6 CONCURRING/DISSENTING http://www.tba.org/tba_files/TCA/Jennings_con.WP6 LATRICIA MCGEE and husband, CECIL MCGEE VS. GUY MAYNARD and FLEET TRANSPORT COMPANY, INC. Court:TCA Attorneys: JOSEPH K. DUGHMAN 315 Deaderick Street 2075 First American Center Nashville, Tennessee 37238-2075 Attorney for Plaintiffs/Appellees JOLADE A.O. MOORE 1815 Jefferson Street, #204 Nashville, Tennessee 37208 Attorney for Defendants/Appellants Judge:CANTRELL First Paragraph: The question presented in this appeal is the proper amount of an attorney's fee where the attorney was discharged prior to the termination of the case below. The Circuit Court of Davidson County awarded the lesser of the contract amount or quantum meruit. The appellant asserts that the contract amount should have included one-third of an additional $15,000. We affirm the decision of the trial court in rejecting the appellant's contention. http://www.tba.org/tba_files/TCA/Mcgeelj_opn.WP6 ELEANOR MICELI VS. DEBORAH KAY THOMPSON, CHARLES R BURNETT, and wife MEREDYTH G. BURNETT, Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendants/Appellees: Vance Cramb, Jr. William Timothy Hill Nashville, Tennessee Nashville, Tennessee Judge:LILLARD First Paragraph: This case involves the enforcement of a judgment lien. The trial court held that the judgment lien had expired because the judgment creditor failed to enforce the lien within the three year period set out in Tennessee Code Annotated S 25-5-105. We affirm. http://www.tba.org/tba_files/TCA/Micelie_opn.WP6 JOYCE CHARLENE PRESTON VS. JAMES THURSTON PRESTON Court:TCA Attorneys: For the Plaintiff/ Appellee: For the Defendant/Appellant: John M. Cannon F. Dulin Kelly Goodlettsville, Tennessee Clinton L. Kelly Andy L. Allman Hendersonville, Tennessee Judge:LILLARD First Paragraph: This is a divorce case. The parties signed a prenuptial agreement prior to their marriage. The wife became disabled after the parties had been married approximately eight months, and the parties separated. The trial court held the prenuptial agreement invalid and awarded alimony in futuro. The husband appeals. We affirm. http://www.tba.org/tba_files/TCA/Prestonj_opn.WP6 STELLA L. STARKS BART DURHAM, d/b/a INJURY & ACCIDENT LAW OFFICES and THOMAS J. ELMLINGER BART DURHAM, d/b/a INJURY & ACCIDENT LAW OFFICES, VS. STEVE DARNELL and BATEMAN, BATEMAN & DARNELL, P.C., Court:TCA Attorneys: Robert L. Whitaker BART DURHAM INJURY & ACCIDENT LAW OFFICES 404 James Robertson Parkway 1712 Parkway Towers Nashville, TN 37219 For Appellant Bart Durham Injury & Accident Law Offices James M. Doran, Jr. Ellen Frances Coughlin Nashville City Center 511 Union Street, Suite 2100 P. O. Box 198966 Nashville, TN 37219-8966 For Appellees Steve Darnell and Bateman, Bateman & Darnell, P.C. Judge:GODDARD First Paragraph: Bart Durham, d/b/a Injury and Accident Law Offices (Durham), Third-Party Plaintiff, appeals pursuant to Rule 54 of the Tennessee Rules of Civil Procedure, a summary judgment granted to Steve Darnell and Bateman, Bateman & Darnell, P.C., Third-Party Defendants, insisting that there are disputed material facts precluding the entry of summary judgment. http://www.tba.org/tba_files/TCA/Starksst_opn.WP6 TOMMY EUGENE STOCKMAN VS. DORIS LORAINE STOCKMAN Court:TCA Attorneys: GEORGE M. ALLEN WISCHHOF & ALLEN GLANCY SQUARE, SUITE 207 110 GLANCY STREET GOODLETTSVILLE, TN 37072 ATTORNEY FOR PETITIONER/APPELLANT DENISE ANDRE 415 BRIDGE STREET P.O. BOX 1022 FRANKLIN, TN 37065 ATTORNEY FOR RESPONDENT/APPELLEE Judge:GOTTRELL First Paragraph: In this appeal, Tommy Eugene Stockman ("Husband") seeks to be relieved from his obligation to pay rehabilitative alimony to his former wife, Doris Loraine Stockman ("Wife"). In support of his request, Husband asserts that Wife's cohabitation with another man terminates his obligation, that Wife has no need for the rehabilitative alimony, and that Wife has made no efforts at rehabilitation. Under the Marital Dissolution Agreement, which was incorporated into the final order of divorce, Husband agreed and was ordered to pay rehabilitative alimony in the amount of $1,000.00 per month for 120 months or until Wife's death or remarriage. He made the first 30 alimony payments, and then brought this action maintaining that his obligation should be terminated. After an October 7, 1997 trial, the trial court denied Husband's petition. We affirm. http://www.tba.org/tba_files/TCA/Stockma0_opn.WP6 STATE OF TENNESSEE VS. JERRY WAYNE ALEXANDER Court:TCCA Attorneys: FOR THE APPELLANT: JOHN C. CAVETT, JR. Pioneer Bank Building 801 Broad Street, Suite 428 Chattanooga, TN 37402 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter CLINTON J. MORGAN Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM H. COX III District Attorney General MARK A. HOOTON Assistant District Attorney General 600 Market Street, Suite 310 Chattanooga, TN 37402 Judge:RILEY First Paragraph: A Hamilton County jury convicted defendant, Jerry Wayne Alexander, of attempt to commit murder in the second degree and aggravated assault. The trial court sentenced him to ten and five years, respectively, and ordered the terms to run concurrently. In this appeal as of right, defendant raises two issues: (1) whether the trial court erred by failing to instruct the jury on reckless endangerment as a lesser offense of aggravated assault; and (2) whether the evidence was sufficient to support the verdicts. We find no reversible error and AFFIRM the trial court's judgment. http://www.tba.org/tba_files/TCCA/Alexandj_opn.WP6 STATE OF TENNESSEE VS. HUBERT D. PATTY Court:TCCA Attorneys: For Appellant: For Appellee: Hubert D. Patty Paul G. Summers P.O. Box 5449 Attorney General and Reporter Maryville, TN 37804-2401 425 Fifth Avenue North Nashville, TN 37243 Michael J. Fahey II Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243 Judge:OGLE First Paragraph: Attorney, Hubert D. Patty, appeals as of right the judgment of the Blount County Criminal Court summarily holding him in criminal contempt and imposing a fine of fifty dollars ($50.00). The trial court also taxed the appellant with court costs stemming from his conduct, amounting to nine hundred and twenty-five dollars and twenty-two cents ($925.22). The appellant presents the following issues for our review: 1. Whether the evidence is sufficient to support the trial court's judgment. 2. Whether the trial court denied the appellant due process of law. 3. Whether Judge D. Kelly Thomas, Jr., should have recused himself from the contempt proceedings. Following a thorough review of the record and the parties' briefs, we reverse the judgment of the trial court and remand this case for proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/Boruffd_opn.WP6 STATE OF TENNESSEE VS. DANNY RAY DAVIS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHNNY D. HOUSTON, JR. PAUL G. SUMMERS Flatiron Bldg., Suite 402 Attorney General & Reporter 707 Georgia Ave. Chattanooga, TN 37402-2048 ERIK W. DAAB Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 WILLIAM H. COX District Attorney General PARKE MASTERSON Asst. District Attorney General 600 Market St. Chattanooga, TN 37402 Judge:PEAY First Paragraph: A jury convicted the defendant of driving under the influence (DUI), third offense, and the defendant received an eleven month, twenty-nine day workhouse sentence. He now appeals, arguing that the jury's verdict is contrary to the weight of the evidence and that the trial court denied his due process rights by not allowing him to recall a State witness. Finding no merit to the defendant's arguments, we affirm his conviction. http://www.tba.org/tba_files/TCCA/Davisdr_opn.WP6 IN RE: INTERNATIONAL FIDELITY INSURANCE COMPANY, NATIONAL AMERICAN INSURANCE COMPANY, AND THE NATIONAL ASSOCIATION OF BAIL INSURANCE COMPANIES, ON BEHALF OF ITS MEMBER COMPANIES UNDERWRITING BAIL BONDS IN THE THIRD JUDICIAL DISTRICT Court:TCCA Attorneys: For Appellant: For Appellee: John K. King Paul G. Summers Lewis, King, et al. Attorney General and Reporter P.O. Box 2425 425 Fifth Avenue North Knoxville, TN 37901 Nashville, TN 37243-0493 Alan M. Parker Ellen H. Pollack Lewis, King, et al. Assistant Attorney General P.O. Box 2425 Criminal Justice Division Knoxville, TN 37901 425 Fifth Avenue North Nashville, TN 37243-0493 Judge:OGLE First Paragraph: The appellants appeal the entry of an order by the Criminal Court for the Third Judicial District, requiring the deposit with the court of additional funds by all companies underwriting bail bonds in that district and imposing a cap upon the total amount of bail bonds which may be underwritten by any one company. The appellants present the following issue for our review: Whether the trial court's order was arbitrary and capricious, violating the appellants' substantive rights to a hearing on the merits of the trial court's action and a finding by the trial court of specific reasons therefor. http://www.tba.org/tba_files/TCCA/Intfid_opn.WP6 STATE OF TENNESSEE VS. CHRIS SMITH Court:TCCA Attorneys: FOR THE APPELLANT: CHARLES M. CORN District Public Defender WILLIAM C. DONALDSON (At Trial) Assistant District Public Defender 110 _ Washington Avenue NE Athens, TN 37303 JOHN E. HERBISON (On Appeal) 2016 Eighth Avenue South Nashville, TN 37204-2202 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter TODD R. KELLEY Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 JERRY N. ESTES District Attorney General WILLIAM W. REEDY Assistant District Attorney General 130 Washington Avenue NE P. O. Box 647 Athens, TN 37371-0647 Judge:RILEY First Paragraph: Defendant, Chris Smith, was convicted by a McMinn County jury on three counts of selling cocaine under 0.5 grams, Class C felonies. The trial court sentenced defendant as a Range II multiple offender to ten years on each count to run concurrently. The following issues are presented in this appeal as of right: (1) whether the trial court erred in denying defendant's motion to sever the offenses; (2) whether the evidence was sufficient to establish venue in McMinn County; and (3) whether the sentences are excessive. After a careful review of the record, we find no error and AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Smithc_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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