October 5, 1999 Volume 5 -- Number 137 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 03 New Opinion(s) from the Tennessee Court of Appeals 04 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: BRITTANY SWANSON, A MINOR TENNESSEE BAPTIST CHILDREN'S HOMES, INC. VS. HARRY LEE SWANSON Court:TSC Attorneys: For the Appellant: For the Appellee: James H. Bradley H. William Scott, III Covington, Tennessee Brentwood, Tennessee Webb A. Brewer & Frank C. Ingraham Debra N. Brittenum Nashville, Tennessee Memphis Area Legal Services, Inc. Memphis, Tennessee Paul G. Summers (Amicus Curiae) Attorney General & Reporter (Amicus Curiae) Douglas E. Dimond Assistant Attorney General (Amicus Curiae) Robert D. Tuke Tuke, Yopp & Sweeney Nashville, Tennessee (Amicus Curiae) Judge:BARKER First Paragraph: This case concerns the termination of appellant Harry Swanson's parental rights over his biological child, Brittany Swanson, who is now nine years old and in the custody of the appellee Tennessee Baptist Children's Homes, Inc. (Baptist Children's Home). Although Mr. Swanson's parental rights were originally terminated by the Tipton County Juvenile Court, the circuit court of Tipton County denied the petition to terminate parental rights on an appeal by Mr. Swanson. The Court of Appeals reversed the decision of the circuit court and found that Mr. Swanson had "abandoned" Brittany because he had "willfully failed to support" her or "willfully failed to make reasonable payments toward [her] support" within the meaning of Tennessee Code Annotated section 36-1-102(1)(D) (1996). We hold that the statutory definition of "willfully failed to support" and "willfully failed to make reasonable payments toward such child's support" is unconstitutional because it creates an irrebuttable presumption that the failure to provide monetary support for the four months preceding the petition to terminate parental rights constitutes abandonment, irrespective of whether that failure was intentional. This presumption violated Mr. Swanson's federal and state constitutional right to the care and custody of his daughter. Accordingly, for the reasons discussed below, the judgment of the Court of Appeals is reversed, and this case is remanded to the circuit court for entry of an order returning custody to Mr. Swanson. http://www.tba.org/tba_files/TSC/SWANSONB_opn.wpd CUMBERLAND BEND INVESTORS, L.P. VS. AMBROSE PRINTING COMPANY, INC. CORRECTED OPINION 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.wpd JO ANN FORMAN, INC. VS. NATIONAL COUNCIL ON COMPENSATION INSURANCE, INC. CORRECTED OPINION Court:TCA Attorneys: JOHN W. MURREY, III JOHN KNOX WALKUP HUGH J. MOORE, JR. DENNIS J. GARVEY DOUGLAS E. PECK MICHAEL BASSHAM JERRY H. SUMMERS GEORGE S. BELL, III JIMMY F. RODGERS, JR. Nashville, Tennessee Chattanooga, Tennessee ATTORNEYS FOR STATE OF TENNESSEE ATTORNEYS FOR PLAINTIFFS/APPELLEES SHELBY R. GRUBBS E. CLIFTON KNOWLES PAMELA BLASS BRACHER Nashville, Tennessee T. MAXFIELD BAHNER ATTORNEY FOR AMERICAN INSURANCE GARY D. LANDER ASSOCIATION, ALLIANCE OF AMERICAN Chattanooga, Tennessee INSURERS AND NATIONAL ASSOCIATION ATTORNEYS DEFENDANTS/APPELLANTS OF INDEPENDENT INSURERS 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.wpd OPRYLAND HOTEL, L.P. VS. MILLBROOK DISTRIBUTION SERVICES, INC. CORRECTED OPINION 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.wpd JACQUES B. BENNETT VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: Jacques B. Bennett John Knox Walkup STSRCF Attorney General and Reporter Route 4, Box 600 425 Fifth Avenue North Pikeville, TN 37367 Nashville, TN 37243-0493 Ellen H. Pollack Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493 Judge: OGLE First Paragraph: The petitioner, Jacques B. Bennett, appeals the summary dismissal of his "Motion to Vacate/Set Aside Judgment/Plea: and, to Declare Said Judgment/Plea Void" by the Hamilton County Criminal Court on January 9, 1998. Following a thorough review of the record, we conclude that this is an appropriate case for affirmance pursuant to Ct. of Crim. App. Rule 20. http://www.tba.org/tba_files/TCCA/BENNETTJ_wpd.wpd LUCY KILLEBREW VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: LUCY KILLEBREW MICHAEL E. MOORE Pro Se Solicitor General SNF-7A, #117005 7575 Cockrill Bend Ind. Road ELLEN H. POLLACK Nashville, TN 37209-1057 Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 H. GREELEY WELLS, JR. District Attorney General BARRY P. STAUBUS Assistant District Attorney 140 Blountville Bypass Blountville, TN 37617-0526 Judge: WILLIAMS First Paragraph: The petitioner, Lucy Killebrew, appeals from the Sullivan County Criminal Court's denial of her motion to reopen her 1989 post-conviction relief petition. We conclude that the petitioner did not comply with the requirements of Tennessee Code Annotated S 40-30-217(c) in pursuing an appeal from the denial of her motion to reopen. Therefore, this appeal is not properly before this Court and we dismiss this appeal. http://www.tba.org/tba_files/TCCA/KILLBRWL_wpd.wpd STATE OF TENNESSEE VS. JOHNNY LEACH Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ANTHONY M. AVERY PAUL G. SUMMERS 607 Market Street, 8th Floor Attorney General & Reporter Knoxville, TN 37902 MICHAEL J. FAHEY, II Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 WILLIAM PAUL PHILLIPS District Attorney General MICHAEL OLIN RIPLEY Assistant District Attorney P. O. Box 323 Jonesboro, TN 37757 Judge: WILLIAMS First Paragraph: The defendant, Johnny Leach, appeals the order of the Criminal Court of Campbell County denying his request to withdraw his guilty plea to two counts of aggravated sexual battery. On July 2, 1998, the defendant entered his plea and received two ten-year sentences to be served concurrently. Because the defendant's plea became final on the date of entry of the plea pursuant to the plea agreement, we conclude that his motion to withdraw was untimely. Accordingly, we AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/LEACHJHY_wpd.wpd JAMES K. ROBBINS VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: James K. Robbins, Pro Se Paul G. Summers TDOC# 114297 Attorney General of Tennessee B.M.C.C. and Post Office Box 2000 Elizabeth B. Marney Wartburg, TN 37887-2000 Asst Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243 J. Scott McCluen District Attorney General Post Office Box 703 Kingston, TN 37763-0703 Judge: TIPTON First Paragraph: The petitioner, James K. Robbins, appeals as of right from the judgment of the Morgan County Criminal Court denying him habeas corpus relief from his 1988 convictions for four counts of aggravated rape and one count of aggravated assault relative to his stepdaughter and from his resulting effective sentence of forty years as a Range II offender in the custody of the Department of Correction. The trial court dismissed his petition for a writ of habeas corpus without appointing him counsel or conducting a hearing because it concluded that the petition failed to state grounds for relief. In this appeal, the petitioner contends that the trial court erred (1) by holding that no claim for relief was alleged and (2) by refusing to appoint counsel and to provide a hearing. We affirm the trial court. http://www.tba.org/tba_files/TCCA/ROBBINSJ_wpd.wpd 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! 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