September 1, 1999 Volume 5 -- Number 120 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):   05 New Opinion(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 09 New Opinion(s) from the Tennessee Court of Appeals 01 New Opinion(s) from the Tennessee Court of Criminal Appeals 01 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 CONCRETE SPACES, INC., FAUX FUR, INC., PAULETTE DALTON, STUART DALTON VS. HENRY SENDER, Individually, DARREN LIFF, ZACKARY LIFF, HENRY SENDER, EUGENE SACKS and wife, RUTH SACKS, d/b/a LIFF, SENDER & SACKS, Tenants in Common, NATIONAL BUILDING CORP. Court:TSC Attorneys: FOR PLAINTIFFS/ APPELLANTS FOR DEFENDANTS/ APPELLEES Steve North & Charles Hampton White Mark North Richard L. Colbert Madison, TN David A. King Cornelius & Collins Abby Rubenfeld Nashville, TN Nashville, TN Judge:DROWOTA First Paragraph: We granted this appeal to address the application of the election of remedies doctrine in Tennessee and to clarify the proper procedure to be implemented when a plaintiff is entitled to both punitive damages in conjunction with a common law claim and to multiple damages pursuant to a statutory remedy. We have determined that a plaintiff is entitled to a calculation of the amount of punitive damages and multiple damages that are warranted under each theory of liability. Only after these assessments are made is the plaintiff required to make an election of remedies. Because this procedure was not implemented in this case, we remand the cause to the trial court for a new trial. http://www.tba.org/tba_files/TSC/Concrete_opn.WP6 JOE M. HATHAWAY, WILLIE M. HATHAWAY, and CLARA B. FULSON VS. FIRST FAMILY FINANCIAL SERVICES, INC. Court:TSC Attorneys: For the Defendant/Petitioner: For the Plaintiffs/Respondents Val Sanford Malcolm L. McCune A. Scott Derrick W. Gary Blackburn Wayne L. Robbins, Jr. Mathew R. Zenner GULLETT, SANDFORD, BLACKBURN, SLOBEY, ROBINSON & MARTIN, PLLC. FREEMAN & HAPPELL Nashville, Tennessee Nashville, Tennessee For Amicus Curiae: Tennessee Consumer Finance Association Robertson M. Leatherman Sara Falkinham ARMSTRONG, ALLEN, PREWITT, GENTRY, JOHNSTON & HOLMES Memphis, Tennessee Judge:DROWOTA First Paragraph: Pursuant to Rule 23 of the Rules of the Supreme Court of Tennessee, this Court accepted certification of the following two questions from the United States District Court for the Middle District of Tennessee: 1. In determining the service charge that an industrial loan and thrift company may charge under Tenn. Code Ann. S 45-5-403(1)(A) (Supp. 1998) upon refinancing a loan, is the amount to be subtracted from the "total amount of the loan" (as defined in S 45-5-102(17) (Supp. 1998)) the amount of the new loan that is used to pay all or a portion of the outstanding balance of the old loan from such industrial loan and thrift company to the borrower? 2. With respect to a violation of the limitations on loan charges and interest rates that are imposed by the Industrial Loan and Thrift Company Act, Tenn. Code Ann. S S 45-5-101 et seq., are a borrower's remedies under Tennessee law limited to those remedies prescribed by the general statute pertaining to interest and other charges by lenders, Tenn. Code Ann. SS 47-14-101 et seq.? http://www.tba.org/tba_files/TSC/Hathaway_opn.WP6 DWAYNE HAWKINS and AL GOSSETT VS. SUPERIOR MOTORS, INC. and PATRICK A. HART NELSON BOWERS II and BOWERS TRANSPORTATION GROUP, LLC Court:TSC ORDER First Paragraph: A petition for rehearing has been filed on behalf of Plaintiffs/Appellees, Dwayne Hawkins and Al Gossett. After consideration of the same, the Court is of the opinion that the petition is hereby denied. http://www.tba.org/tba_files/TSC/hawkins&_ord.WP6 LINDA LAYNE, individually and as the surviving spouse of JAMES T. LAYNE Vs. PIONEER LIFE INSURANCE COMPANY OF ILLINOIS Court:TSC Attorneys: ROGER W. HUDSON 16 Public Square North P. O. Box 884 Murfreesboro, Tennessee 37133-0884 ATTORNEY FOR PLAINTIFF/APPELLANT MALCOLM L. McCUNE Blackburn, Slobey, Freeman & Happell 414 Union Street, Suite 2050 NationsBank Plaza Nashville, Tennessee 37219 ATTORNEY FOR DEFENDANT/APPELLEE Judge:CAIN First Paragraph: This is a suit in chancery for declaratory judgment relative to a policy of insurance. The primary question presented is whether or not participation by the insured in a motorbike event known as an "enduro" constitutes "racing" within the meaning of an exclusion in the policy. After the insured died from injuries he received while participating in an "enduro," the defendant insurance company denied coverage. The lower court found that the particular loss in this case was excluded from coverage. We affirm the decision of the trial court. http://www.tba.org/tba_files/TSC/LAYNEL_OPN.WP6 SCHERING-PLOUGH HEALTHCARE PRODUCTS, INC. VS. STATE BOARD OF EQUALIZATION Court:TSC Attorneys: Defendant/Appellant: Plaintiff/Appellee John Knox Walkup Fred M. Ridolphi, Jr. Attorney General & Reporter Humphreys, Dunlap, Wellford, Acuff & Stanton, P.C. Memphis, Tennessee Michael E. Moore Solicitor General Michael W. Catalano Associate Solicitor General Nashville, Tennessee Judge:DROWOTA First Paragraph: This case presents for review the decision of the Court of Appeals which reversed the Chancery Court's dismissal of the petition of Schering-Plough Healthcare Products, Inc. ("Schering-Plough") which sought judicial review of a decision of the State Board of Equalization ("Board"). The Chancery Court dismissed the petition after concluding that it lacked subject matter jurisdiction over the action because Schering-Plough had failed to name Shelby County as a party in the petition and had failed to serve Shelby County with a copy of the petition within sixty days of the final decision of the Board. The Court of Appeals reversed the dismissal and held that Tenn. Code Ann. S 4-5-322(b) (1998 Repl.) does not require that all parties to the contested case be named in the petition for review or that copies of the petition be served upon all parties to the contested case within the sixty-day time limitation. We agree and now affirm the decision of the Court of Appeals. http://www.tba.org/tba_files/TSC/Schering_opn.WP6 IN RE: ORDER ESTABLISHING SUPREME COURT RULE 34 -- ADOPTION OF POLICIES AND GUIDELINES CONCERNING CUSTODY OF AND ACCESS TO APPELLATE JUDICIAL RECORDS. Court:TSC - Rules Judge:ANDERSON First Paragraph: On November 12, 1998, the implementation committee for the Appellate Court Automation Project submitted for the Court's consideration draft guidelines governing custody of and access to appellate judicial records. These guidelines were also forwarded to the Attorney General and Reporter and to the Tennessee Press Association. After considering the comments and suggestions offered by these two entities, the implementation committee submitted a revised version of the policy and guidelines to this Court. After careful consideration, we adopt the following proposed policies and guidelines to govern custody of and access to appellate judicial records. http://www.tba.org/tba_files/TSC_Rules/Rule34_ord.WP6 ALLISON COOKE BATTLES and LESLIE COOKE JONES VS. FIRST UNION BANK, PEGGY SMITH BEVERLY G. PITT. LEIGH ANN HOWARD, and EXCHANGE INSURANCE COMPANY Court:TCA Attorneys: BRENDA RHOTON LITTLE Suite 511, Cummins Station 209 Tenth Avenue, South Nashville, Tennessee 37203 Attorney for Plaintiffs/Appellants H. ROWAN LEATHERS 2200 First Union Tower 150 Fourth Avenue North Nashville, Tennessee 37219 Attorney for Defendants/Appellees First Union Bank, Peggy Smith, Beverly Pitt and Leigh Ann Howard Judge:CANTRELL First Paragraph: Two of the beneficiaries of a will sued the witnesses and a notary public because the will was not properly executed. The plaintiffs also sued a bank, the witnesses' employer, for not training its employees on how to properly witness wills. The Chancery Court of Sumner County granted the defendants summary judgment. We affirm. http://www.tba.org/tba_files/TCA/BATTLEAC_OPN.WP6 MICKEY A. BROWN VS. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: MICKEY A. BROWN #130138 Northeast Correctional Center P. O. Box 5000 Mountain City, Tennessee 37683 Pro Se/Petitioner/Appellant PAUL G. SUMMERS Attorney General and Reporter MICHAEL L. HAYNIE Assistant Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243-0488 Attorney for Respondent/Appellee Judge:CANTRELL First Paragraph: A Tennessee prison inmate filed a Petition for a Declaratory Judgment, insisting that he was entitled to be immediately released because of the earlier expiration of a concurrent Florida sentence. The trial court dismissed the petition for failure to state a claim. We affirm. http://www.tba.org/tba_files/TCA/BROWNMA_OPN.WP6 GREI S. HINSEN VS. MARK E. MEADORS, Individually and d/b/a MEM CONTRACTORS, and HAILEY BROWN Court:TCA Attorneys: PHILLIP BYRON JONES 1810 First Union Tower 150 Fourth Avenue North Nashville, Tennessee 37219 Attorney for Plaintiff/Appellant STEPHEN M. MILLER 1103 B 17th Avenue South Nashville, Tennessee 37212 Attorney for Defendant/Appellee Mark E. Meadors W. GARY BLACKBURN 414 Union Street, Suite 2050 Nashville, Tennessee 37219 Attorney for Defendant/Appellee Hailey Brown Judge:CANTRELL First Paragraph: This is an action by a homeowner against a remodeling contractor and a painter for the failure of the paint inside the house. The Chancery Court of Davidson County dismissed the homeowner's claims. We affirm. http://www.tba.org/tba_files/TCA/HINSENGS_OPN.WP6 MICHAEL KING VS. TFE, INC Court:TCA Attorneys: JOHN W. PALMER THE PALMER LAW FIRM Dyersburg, Tennessee Attorney for Appellant KIM B. KETTERING HARDIN, PARKES & KETTERING, PLLC Columbia, Tennessee Attorney for Appellee Judge:HIGHERS First Paragraph: In this action filed against TFE, Inc. (hereafter "TFE"), Michael King appeals the trial court's grant of summary judgment to TFE as related to King's claims for breach of an alleged employment contract. The trial court granted TFE's motion for summary judgment based on the court's conclusion that an employee handbook distributed by TFE did not constitute an employment contract. For the reasons hereafter stated, we affirm the trial court's grant of summary judgment. http://www.tba.org/tba_files/TCA/Kingmich_opn.WP6 TERRY DAVID MACKIE VS. SARAH CATHERINE MACKIE Court:TCA Attorneys: CONNIE REGULI 353 Wimpole Drive Nashville, Tennessee 37211 ATTORNEY FOR PLAINTIFF/APPELLEE JAMES ROBIN McKINNEY STANLEY A. KWELLER Jackson, Kweller, McKinney & Badger One Washington Square, Suite 103 214 Second Avenue North Nashville, Tennessee 37201 ATTORNEY FOR DEFENDANT/APPELLANT Judge:CAIN First Paragraph: This case represents an appeal from the grant of divorce upon stipulation of grounds pursuant to Tennessee Code Annotated section 36-4-129. The parties to this action, Terry David Mackie ("Husband"), and Sarah Catherine Campbell Mackie ("Wife") were married on November 6, 1984. Husband filed a complaint in Williamson County Circuit Court on March 6, 1997, seeking divorce on the grounds of inappropriate marital conduct and irreconcilable differences. On March 20, 1997, Wife answered and counterclaimed. In her answer, Wife admitted the ground of irreconcilable differences and alleged inappropriate marital conduct on the part of the Husband. Over the next 14 months the parties participated in successive proceedings regarding pendente lite custody of their severely ill minor child. The case was originally set for trial on June 3, 1997. Both parties agreed to continue the case; each sought a scheduling order for the sequence of discovery. The parties were ordered to attend mediation on February 23, 1998. On May 18, 1998, Husband moved to change pendente lite custody and to compel discovery. This motion was to be heard on June 3, 1998. At the June 3, hearing, in an admittedly unorthodox proceeding, the parties stipulated under oath that each had grounds for divorce. At this point in the hearing, both parties were sent into an antechamber to provide for the division of the marital estate and custody of the child. These negotiations are documented in handwritten notes, signed by the parties and their counsel, and appearing in the record. http://www.tba.org/tba_files/TCA/MACKIET_OPN.WP6 DOROTHY AND ROGER SMITH VS. MAURY COUNTY Court:TCA Attorneys: RICHARD H. DINKINS 306 Gay Street Suite 210 Nashville, Tennessee 37201 Attorney for Plaintiffs/Appellees WILLIAM H. DALE, JR. P. O. Box 424 Columbia, Tennessee 38402-0424 Attorney for Defendant/Appellant Judge:CANTRELL First Paragraph: The plaintiffs, a mother and her son owning adjoining farms on a rural road in Maury County, sued the county for a nuisance created when the county improved the road. The county argued that the exclusive remedy was for inverse condemnation, and that the one year statute of limitations barred the action. On appeal the county asserts, in addition to its original defense, that the damages awarded were beyond the range of reasonableness. We reverse the judgment below and remand for a new trial. http://www.tba.org/tba_files/TCA/SMITHD_OPN.WP6 SOUTHWEST PROGRESSIVE ENTERPRISES, INC. VS. SHRI-HARI HOSPITALITY, LLC, and TRANS FINANCIAL BANK OF TENNESSEE, N.A. Court:TCA Attorneys: THOMAS D. FROST 815 South Church Street Murfreesboro, Tennessee 37130 Attorney for Plaintiff/Appellee JAMES C. BRADSHAW, III 1500 Nashville City Center 511 Union Street Nashville, Tennessee 37219 Attorney for Defendant/Appellant Judge:CANTRELL First Paragraph: A construction company sued a hotelkeeper for payment of the balance due on their contract. The trial court ordered the hotelkeeper to pay the balance, as well as pre-judgment interest and attorney fees. We affirm the award of pre-judgment interest, but we reverse the award of attorney fees. We also reverse a $500 offset the trial court granted to the defendant for the plaintiff's alleged failure to complete a punch list. http://www.tba.org/tba_files/TCA/SOUTHPRO_OPN.WP6 TIM TAYLOR VS. ROBERT L. MORRIS and TERRY MUNCEY Court:TCA Attorneys: THOMAS D. FROST 815 South Church Street Murfreesboro, Tennessee 37130 Attorney for Plaintiff/Appellee JAMES C. BRADSHAW, III 1500 Nashville City Center 511 Union Street Nashville, Tennessee 37219 Attorney for Defendant/Appellant Judge:FARMER First Paragraph: Defendant Terry Muncey appeals, and Plaintiff Tim Taylor cross-appeals, the trial court's judgment awarding Muncey $1000 in damages on his counterclaim for wrongful injunction against Taylor. We reverse the trial court's judgment based upon our conclusion that Muncey failed to meet his burden of proving the elements of his claim for wrongful injunction. http://www.tba.org/tba_files/TCA/Taylorti_opn.WP6 WILLIAM H. THOMPSON, JR., and COUNTRY MAID FARMS, INCORPORATED, a Tennessee Corporation VS. DEPARTMENT OF CODES ADMINISTRATION, METROPOLITAN GOVERNMENT OF NASHVILLE and DAVIDSON COUNTY Court:TCA Attorneys: DAVID O. HUFF Washington Square, Suite 204 214 Second Avenue, North Nashville, Tennessee 37201 ATTORNEY FOR PLAINTIFFS/APPELLANTS THOMAS G. CROSS Metropolitan Attorney 204 Metropolitan Courthouse Nashville, Tennessee 37201 ATTORNEY FOR DEFENDANT/APPELLEE Judge:CAIN First Paragraph: This case involves the refusal of the Metropolitan Department of Codes Administration ("the Department") to issue building permits to the petitioner/appellant landowner. Planning to divide and sell his land, the petitioner made preparations to subdivide this land pursuant to the Department's advice on how to avoid regulation by the Metropolitan Planning Commission ("MPC"). However, due to a new interpretation of existing statutory law, the petitioner's preparations, once completed, were no longer adequate and the Department deemed that the land must undergo review before the MPC as a subdivision. Consequently, the zoning administrator of the Department denied the petitioner the building permits and the petitioner brought suit claiming first that the division of land was not a "subdivision" as that term is defined by statute. Furthermore, the petitioner contended that the zoning administrator's application of the newly-interpreted law to him violated his constitutional rights to equal protection and due process and effected against him the application of a retrospective law. In addition, the appellant claimed that the Department should be equitably estopped from refusing to issue the building permits. The trial court granted the Department's motion for involuntary dismissal of the petitioner's case. We affirm the decision of the trial court on all issues. http://www.tba.org/tba_files/TCA/THMPSNWM_OPN.WP6 STATE OF TENNESSEE VS. HARRISON PEARSON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ARDENA J. GARTH PAUL G. SUMMERS District Public Defender Attorney General & Reporter KARLA G. GOTHARD (at trial) ELLEN H. POLLACK Assistant Public Defender Assistant Attorney General 701 Cherry Street, Suite 300 425 Fifth Ave. N., 2d Floor Chattanooga, TN 37402-1910 Nashville, TN 37243-0493 EDWARD T. LANDIS WILLIAM H. COX III (at sentencing and on appeal) District Attorney General Attorney at Law 744 McCallie Avenue, Suite 327 Chattanooga, TN 37403 JOHN W. MILLICAN and DAVID W. DENNY Asst. District Attorneys General 600 Market Street, Suite 310 Chattanooga, TN 37402 Judge:WITT First Paragraph: The defendant, Harrison Pearson, appeals from his jury conviction in the Hamilton County Criminal Court for aggravated arson, a Class A felony. See Tenn. Code Ann. S 39-14-303(a)(1) (1997). The trial court imposed a twenty-year sentence in the Tennessee Department of Correction. In this direct appeal, the defendant contends the state improperly withheld the existence of taped statements of witnesses and improperly rehabilitated one of its witnesses out of court. After a review of the record, the briefs of the parties, and the applicable law, we affirm. http://www.tba.org/tba_files/TCCA/Pearsonh_opn.WP6 JUDICIAL ETHICS COMMITTEE ADVISORY OPINION NO. 99-4 Judge:HAYES First Paragraph: Before the Committee is the question of whether a trial judge may accept part-time employment with a large corporation if the work is non-legal in nature and the employment would not interfere with the proper performance of judicial duties. Specifically, the majority of the trial judge's employment responsibilities would be conducted during the weekend and there would be no interaction with the general public. Additionally, the trial judge would be compensated at the same rate as received by other employees for comparable work. We conclude that such part-time employment is prohibited by the Code of Judicial Conduct. http://www.tba.org/tba_files/TSC_Rules/99-4_opn.WP6 PLEASE FORWARD THIS EMAIL! 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