September 29, 1999 Volume 5 -- Number 133 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 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 18 New Opinion(s) from the Tennessee Court of Appeals 00 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 New Judicial Ethics Opinion(s) 01 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 VIRGINIA BYRD VS. COOKEVILLE GENERAL HOSPITAL Court:TSC JUDGMENT ORDER Judge:TURNBULL 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. http://www.tba.org/tba_files/TSC/byrd_jo.WP6 SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL Jonathan Stephenson vs. State of Tennessee APPEAL NO.: 03C01-9807-CR-00255 COUNTY: Johnson Criminal TRIAL JUDGE: Lynn W. Brown TRIAL COURT NO.: 3207 APPELLATE JUDGE: Woodall, J. JUDGMENT: Affirmed NATURE OF APPEAL: Rule 11 ACTION: Granted - Application of Jonathan Stephenson http://www.tba.org/tba_files/TSC_Rules/CERTLIST_927.WP6 CUMBERLAND BEND INVESTORS, L.P. VS. AMBROSE PRINTING COMPANY, INC. Court:TCA Attorneys: NANCY S. JONES MICHAEL G. STEWART WALLER LANSDEN DORTCH & DAVIS 511 Union Street, Suite 2100 Nashville, Tennessee 37219-8966 Attorneys for Plaintiff/Appellee ANTHONY J. MCFARLAND BASS, BERRY & SIMS PLC 2700 First American Center Nashville, Tennessee 37238-2700 Attorney for Defendant/Appellant Judge:CANTRELL First Paragraph: Ambrose Printing Company, Inc. claimed a parking easement by prescription or by implication in a lot across the street from its office building. The owner of the lot, Cumberland Bend Investors, L.P., sought a declaratory judgment on Ambrose's claim. The Chancery Court of Davidson County granted summary judgment to Cumberland Bend. We affirm. http://www.tba.org/tba_files/TCA/cumbend_opn.WP6 JOHN DAVIS VS. COMPUTER MAINTENANCE SERVICE, INC Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendant/Appellee: B. Keith Williams James D. Kay, Jr. Brody N. Kane John B. Enkema Lebanon, Tennessee Nashville, Tennessee Judge:LILLARD First Paragraph: This is an employment disability discrimination case. The plaintiff employee filed suit against the defendant employer, alleging that he was wrongfully terminated shortly after he was hired because of his diabetes, in violation the Tennessee Handicap Act. The trial court granted summary judgment in favor of the defendant employer, finding that the plaintiff proffered insufficient evidence that his termination was wrongfully based on his handicap. We affirm, finding that the plaintiff's condition does not constitute a "handicap" under the Tennessee Act, based on Sutton v. United Airlines, Inc., 527 U.S. _____, 119 S. Ct. 2139 (1999), decided after the trial court's decision in this case. http://www.tba.org/tba_files/TCA/Davisj_opn.WP6 THOMAS E. DRAKE, and wife, DEBRA DRAKE VS. BILL MANSON, Individually and WILSON COUNTY, WILSON COUNTY SHERIFF AND DEPARTMENT, and its Employees, SERGEANT BILLY WILLIAMS and OFFICER DONNA CAMP; and CITY OF MT. JULIET, TENNESSEE, and MT. JULIET POLICE DEPARTMENT Court:TCA Attorneys: WILLIAM L. MOORE, JR. 119 Public Square Gallatin, Tennessee 37066 Attorney for Plaintiffs/Appellants THOMAS I. CARLTON, JR. CHRISTOPHER S. DUNN 2700 Nashville City Center Nashville, Tennessee 37219 Attorneys for Defendant/Appellee Wilson County DARRELL G. TOWNSEND DERRICK C. SMITH 300 James Robertson Parkway Nashville, Tennessee 37201-1107 Attorneys for Defendant/Appellee City of Mt. Juliet Judge:CANTRELL First Paragraph: A motorist was severely injured when his car was broadsided by a speeding vehicle, driven by an armed robbery suspect who had been fleeing in a stolen car from pursuit by police officers. The injured motorist's suit named the fleeing suspect, Wilson County, the City of Mt. Juliet, and individual police officers. The trial court granted summary judgment to all the defendants except for the driver of the stolen car. We affirm as to the individual officers, but reverse as to the County and City. http://www.tba.org/tba_files/TCA/Drakete_opn.WP6 MARY L. ELDRIDGE VS. ANTHONY W. ELDRIDGE Court:TCA Attorneys: For the Plaintiff/Appellee: For the Defendant/Appellant: John Pellegrin Regina L. Farmer Gallatin, Tennessee White House, Tennessee Judge:FARMER First Paragraph: This is a divorce case. The husband appeals from the final divorce decree, asserting that the trial court precluded him from presenting evidence at the divorce trial. The husband also appeals the trial court's decision regarding alimony and division of marital property. We affirm in part, reverse in part, and remand. http://www.tba.org/tba_files/TCA/Eldridge_opn.WP6 Dissenting Opinion: http://www.tba.org/tba_files/TCA/Eldridge_pd.WP6 IN RE: THE ADOPTION OF FEMALE CHILD, E.N.R. AMY JENELL REED and JONATHAN LAMAR REED VS. TIMOTHY RAY ROSE Court:TCA Attorneys: ANDREA HUDDLESTON HILLHOUSE & HUDDLESTON P.O. BOX 787 LAWRENCEBURG, TENNESSEE 38464 ATTORNEY FOR PETITIONERS/APPELLEES J. JAY CHEATWOOD P.O. BOX 794 LAWRENCEBURG, TENNESSEE 38464 ATTORNEY FOR RESPONDENT/APPELLANT Judge:COTTRELL First Paragraph: Appellant Timothy Ray Rose, an inmate of the Tennessee Department of Correction, seeks reversal of the trial court's decision to terminate his parental rights regarding E.N.R., his daughter by Amy Jenell Reed. Mr. Rose asserts that Tenn. Code Ann. S 36-1-113 (g) (6) (Supp. 1998) violates the Due Process Clause of the Fourteenth Amendment. He also maintains that termination of his parental rights was not in E.N.R.'s best interest. For the following reasons, we affirm and remand. http://www.tba.org/tba_files/TCA/ENR_OPN.WP6 Dissenting Opinion: http://www.tba.org/tba_files/TCA/ENR_dis.WP6 JO ANN FORMAN, INC., et al VS. NATIONAL COUNCIL ON COMPENSATION INSURANCE, INC., et al, Court:TCA Attorneys: JOHN W. MURREY, III HUGH J. MOORE, JR. DOUGLAS E. PECK Witt, Gaither & Whitaker 1100 SunTrust Bank Building Chattanooga, Tennessee 37402 JERRY H. SUMMERS JIMMY F. RODGERS, JR. Summers & Wyatt 500 Lindsay Street Chattanooga, Tennessee 37402 ATTORNEYS FOR PLAINTIFFS/APPELLEES SHELBY R. GRUBBS PAMELA BLASS BRACHER Miller & Martin 1000 Volunteer Building 832 Georgia Avenue Chattanooga, Tennessee 37402 T. MAXFIELD BAHNER GARY D. LANDER Chambliss, Bahner & Stophel 1000 Tallan Building Two Union Square Chattanooga, Tennessee 38402-2500 ATTORNEYS FOR DEFENDANTS/APPELLANTS Judge:CAIN First Paragraph: The sole question presented by this appeal is whether or not workers' compensation insurance, which is an intangible contract right or service, is an "article" or "product" subject to the Tennessee antitrust statutes (Tennessee Code Annotated sections 47-25-101 and 47-25-103-109). If this "intangible" is within the purview of the act, then the trial court was correct in overruling the Rule 12 motion of the defendants. If such "intangible" is not within the purview of the statute, the Rule 12 motion is well taken and the trial court judgment must be reversed. For the reasons that follow, we find that the Tennessee antitrust statutes do not apply to workers' compensation insurance. Accordingly, the trial court's decision must be reversed. http://www.tba.org/tba_files/TCA/FORMANJA_OPN.WP6 KELLIE M. HAYWOOD (ABERNATHY) VS. PRESTON JIMMY HAYWOOD Court:TCA Attorneys: C. TIM TISHER 33 PUBLIC SQUARE P.O. BOX 1952 COLUMBIA, TENNESSEE 38402 ATTORNEY FOR PLAINTIFF/APPELLANT LAWRENCE D. SANDS 102 WEST 7TH STREET P.O. BOX 1660 COLUMBIA, TENNESSEE 38402-1660 ATTORNEY FOR DEFENDANT/APPELLEE Judge:COTTRELL First Paragraph: This appeal involves the modification of a child custody order. The trial court changed the joint custody arrangement with the mother as primary custodian of the nine-year old girl, A.H., to sole custody with the father. The mother appeals the order changing custody, alleging it was made without an initial finding of an unanticipated change of circumstances. For the following reasons, we reverse the trial court's order. http://www.tba.org/tba_files/TCA/Haywood_opn.WP6 HENRY LEE HULSHOF VS. DOROTHY ANN HULSHOF Court:TCA Attorneys: RONDAL T. WILSON 200 E. DEPOT ST. P.O. BOX 336 SHELBYVILLE, TN 37160 ATTORNEY FOR PLAINTIFF/APPELLEE LAWRENCE D. SANDS P.O. BOX 1660 102 WEST 7TH STREET COLUMBIA, TN 38402-1660 ATTORNEY FOR DEFENDANT/APPELLANT Judge:COTTRELL First Paragraph: Henry Lee Hulshof ("the husband") commenced this divorce action, alleging inappropriate marital conduct or, alternatively, irreconcilable differences. Two weeks later, his wife of twenty-seven years, Dorothy Ann Hulshof ("the wife") responded by filing an answer and counter-petition alleging inappropriate marital conduct, irreconcilable differences, and adultery. After a bench trial, the court below awarded the wife a divorce on the ground that the husband had committed inappropriate marital conduct. The court divided the parties' personal property between them and awarded the wife rehabilitative alimony in the amount of $300 per month for two years and one half the value of the husband's retirement benefits calculated as of March 2, 1998. The court also equally divided the funds in the couple's various accounts and ordered their real property sold and the proceeds divided equally. The wife appealed, challenging the property distribution, the amount of alimony awarded, and the court's failure to award her sufficient attorney fees. We affirm in part as modified, vacate in part, and remand for proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/HULSHOFH_Opn.WP6 BILLY LATTIMER VS. TENNESSEE DEPARTMENT OF CORRECTION, ET AL Court:TCA Attorneys: BILLY LATTIMER, #91238 Turney Center Industrial Prison Route 1, Only, Tennessee 37140-9709 ACTING PRO SE FOR PETITIONER/APPELLANT JOHN KNOX WALKUP Attorney General and Reporter MICHAEL E. MOORE Solicitor General ELENA J. XOINIS Assistant Attorney General Civil Rights and Claims Division 425 5th Avenue North Nashville, Tennessee 37243-0488 Judge:COTTRELL First Paragraph: This is an appeal from the dismissal of a Petition for Declaratory Judgment by the Chancery Court of Davidson County. The petitioner, Billy Lattimer ("Petitioner"), is serving a sentence in the custody of the Tennessee Department of Correction. He argues that the trial court improperly dismissed his lawsuit for lack of jurisdiction. We agree. http://www.tba.org/tba_files/TCA/Lattimere_OPN.WP6 MILES NICKELSON and MARY JOYCE NICKELSON, as parents and next of friend, NAKESHA S. NICKELSON, a minor VS. SUMNER COUNTY BOARD OF EDUCATION Court:TCA Attorneys: KENNETH M. SWITZER WILLIAMS & ASSOCIATES, P.C. SUITE 1425 FIRST AMERICAN CENTER 315 DEADERICK STREET NASHVILLE, TENNESSEE 37238-1425 ATTORNEY FOR PLAINTIFFS/APPELLANTS WILLIAM R. WRIGHT LEAH MAY DENNEN OFFICE OF THE LAW DIRECTOR SUMNER COUNTY ADMINISTRATION BUILDING 355 NORTH BELVEDERE DRIVE, ROOM 208 GALLATIN, TENNESSEE 37066 ATTORNEYS FOR DEFENDANT/APPELLEE Judge:COTTRELL First Paragraph: In this case Plaintiffs, Miles Nickelson and Mary Nickelson, sued the Sumner County Board of Education for injuries their daughter, Nakesha Nickelson, sustained when she was struck in the eye with a metal meter stick or ruler which was swung by a classmate. Plaintiffs now appeal the trial court's order granting the defendant school system summary judgment. We affirm the order of the trial court. http://www.tba.org/tba_files/TCA/NICKELSN_OPN.WP6 OPRYLAND HOTEL, L.P. VS. MILLBROOK DISTRIBUTION SERVICES, INC. Court:TCA Attorneys: CYRUS L. BOOKER URSULA Y. HOLMES Booker, Baugh & Grant 315 Deaderick Street, #1280 Nashville, Tennessee 37238-1280 ATTORNEYS FOR PLAINTIFF/APPELLANT DOUGLAS FISHER Howell & Fisher Court Square Building 300 James Robertson Parkway Nashville, Tennessee 37201 ATTORNEY FOR DEFENDANT/APPELLEE Judge:CAIN First Paragraph: This is an appeal by Opryland Hotel from judgment of the Chancery Court of Davidson County relative to the cancellation by Millbrook Distribution Services, Inc., of a hotel reservation agreement. Constructed in the 1970's, Opryland Hotel had expanded in the ensuing years so that in the year 1993 it was one of the major convention centers in the country. Millbrook Distribution Services, Inc. was a foreign corporation, with corporate offices in Arkansas, seeking to hold its first convention of vendors, employees and customers in the middle of the year 1995. http://www.tba.org/tba_files/TCA/opry_opn.WP6 JEFFREY ROBINSON VS. CHARLES TRAUGHBER, et al., Court:TCA Attorneys: JEFFREY ROBINSON Turney Center Prison Annex Route 1 Only, Tennessee 37140 Pro Se/Petitioner/Appellant PAUL R. SUMMERS Attorney General and Reporter ABIGAIL TURNER Assistant Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243-0488 Attorney for Respondents/Appellees Judge:CANTRELL First Paragraph: A prisoner filed a petition for writ of certiorari, claiming that the Board of Paroles had acted arbitrarily and illegally in denying him parole. The trial court dismissed the petition for failure to state a claim for which relief could be granted. We affirm the trial court. http://www.tba.org/tba_files/TCA/robinsoj_opn.WP6 JAMES E. SHERLOCK VS. KWIK SAK and EMRO MARKETING COMPANY Court:TCA Attorneys: T. TURNER SNODGRASS 95 WHITE BRIDE ROAD, SUITE 223 NASHVILLE, TENNESSEE 37205 ATTORNEY FOR PLAINTIFF/APPELLANT M. CLARK SPODEN BROWN, TODD & HEYBURN 2222 FIRST AMERICAN CENTER NASHVILLE, TENNESSEE 37238 ATTORNEY FOR DEFENDANTS/APPELLEES Judge:COTTRELL First Paragraph: In this case, involving injuries sustained in a slip and fall accident in a parking lot, the plaintiff, Mr. James E. Sherlock (hereinafter Plaintiff), appeals the order of the trial court granting summary judgment to the defendants, Kwik Sak and its parent company, Emro Marketing Company (hereinafter Defendants). http://www.tba.org/tba_files/TCA/SHERLOCK_Opn.WP6 GENE TAYLOR VS. DONAL CAMPBELL, TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: GENE TAYLOR #75796 Northwest Correctional Complex Route 1, Box 660 Tiptonville, Tennessee 38079 Pro Se/Petitioner/Appellant PAUL G. SUMMERS Attorney General and Reporter JOHN R. MILES 425 Fifth Avenue North Nashville, Tennessee 37243-0488 Attorney for Respondent/Appellee Judge:CANTRELL First Paragraph: A prisoner seeking a declaratory judgment to review his prison sentence asserts that in granting summary judgment to the state, the chancellor erred by finding that he committed a felony while on work release. Based on a prior decision of the Court of Criminal Appeals, we find that res judicata bars the litigation of that issue. Therefore, we affirm the judgment of the lower court. http://www.tba.org/tba_files/TCA/taylorg_opn.WP6 HOWARD TURNER VS. SHIRLEY CAMPBEL Court:TCA Attorneys: HOWARD TURNER, #239571 South Central Correctional Facility P. O. Box 279 Clifton, Tennessee 38425-0279 Pro Se/Petitioner/Appellant TOM ANDERSON 130-C Stonebridge Boulevard Jackson, Tennessee 38305 Attorney for Respondent/Appellee Judge:CANTRELL First Paragraph: The issue in this case is whether a petition for certiorari states a cause of action when it seeks a review of the punishment imposed for violating prison rules and names only the employee of the private company running the prison. We hold that it does not, and we affirm the order of the lower court. http://www.tba.org/tba_files/TCA/turnerh_opn.WP6 LISA DIANE WAGNER VS. CHARLES BRADLEY GASTON Court:TCA Attorneys: STEPHEN T. GREER, P.C. 10B RANKIN AVENUE NORTH P.O. BOX 758 DUNLAP, TENNESSEE 37327 ATTORNEY FOR PLAINTIFF/APPELLEE AUBREY L. HARPER, ESQUIRE 114 NORTH COLLEGE STREET P.O. BOX 588 McMINNVILLE, TENNESSEE 37111-0588 ATTORNEY FOR DEFENDANT/APPELLANT Judge:COTTRELL First Paragraph: In this case, Mr. Charles Bradley Gaston (hereafter "Father") appeals the trial court's denial of his request that the existing child custody order regarding his three minor children be modified to grant him custody. We affirm the order of the trial court. http://www.tba.org/tba_files/TCA/WAGNER_Opn.WP6 BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE FORMAL ETHICS OPINION 99-F- 143(a) A further inquiry regarding the relationship between lawyers, who are appointed by insurance companies to defend, and insurance companies. http://www.tba.org/tba_files/TSC_Rules/99F143A_FEO.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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