November 9, 1999 Volume 5 -- Number 153 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):   02 New Opinion(s) from the Tennessee Supreme Court 01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 13 New Opinion(s) from the Tennessee Court of Appeals 02 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 STATE OF TENNESSEE VS. BRENDA ANNE BURNS Court:TSC Attorneys: For the Appellant: For the Appellee: Andrew Frazier Paul G. Summers Camden, Tennessee Attorney General and Reporter (At Trial) Michael C. Moore David Raybin Solicitor General Nashville, Tennessee (On Appeal) Elizabeth T. Ryan Assistant Attorney General Nashville, Tennessee Robert Radford District Attorney General Judge: BARKER First Paragraph: Defendant/appellee Brenda Burns was tried and convicted of criminal responsibility for the commission of first-degree murder in the death of her ex- husband, Paul Burns. The Court of Criminal Appeals reversed the conviction on the basis that trial counsel was ineffective in failing to interview two potential defense witnesses and present the testimony of those witnesses before the jury. The State filed an Application for Permission to Appeal contesting the intermediate court's reversal of the defendant's conviction on that basis. The defendant filed a Cross- Application for Permission to Appeal raising, among other issues, whether the trial court had committed reversible error by failing to instruct the jury on the lesser- included offenses of facilitation of a felony (i.e., first-degree murder), Tenn. Code Ann. S 39-11-403 (1991), and solicitation to commit a criminal offense (i.e., first-degree murder), Tenn. Code Ann. S 39-12-102 (1991). We granted both Applications in order to address these important issues. http://www.tba.org/tba_files/TSC/burnsba.wpd STATE OF TENNESSEE VS. TERRY ALLEN DOMINY Court:TSC Attorneys: For Plaintiff-Appellee: For Defendant-Appellant: John Knox Walkup Peter G. Heil Attorney General & Reporter Nashville, Tennessee (Appeal Only) Michael E. Moore Solicitor General Shara Flacy William Bright Gordon W. Smith District Public Defenders Associate Solicitor General Pulaski, Tennessee Nashville, Tennessee James G. White, II District Attorney General Lawrenceburg, Tennessee Judge: DROWOTA First Paragraph: The dispositive issues in this appeal are as follows: (1) whether the indictment in this case charging the defendant with aggravated rape is sufficient to support a conviction for spousal rape, a "lesser grade" offense under this Court's decision in State v. Trusty, 919 S.W.2d 305 (Tenn. 1996); and (2) if so, should this Court reconsider it decision in Trusty. http://www.tba.org/tba_files/TSC/DOMINYdro.wpd THERESA WALKER VS. WHELAND FOUNDRY Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Daniel J. Ripper Jeffrey W. Rufolo Luther-Anderson, PLLP Summers & Wyatt, P.C. P.O. Box 151 500 Lindsay Street Chattanooga, TN 37401-0151 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. At the time of the trial of this case, the plaintiff was 36 years of age. She had obtained a basic adult education but had no particular vocational training. Prior to working for the defendant, the plaintiff worked primarily in convenience stores. The plaintiff sustained an injury to her right shoulder and elbow as a result of an accident in the course of her employment with the defendant. The accident occurred on August 8, 1996. After prolonged treatment, she underwent surgery on June 9, 1999, to repair a torn rotator cuff. The treating physician found an 8 percent whole body disability. http://www.tba.org/tba_files/TSC_WCP/WALKERTE.wpd IN RE: AMENDMENT TO SUPREME COURT RULE 4 Court:TSC - Rules Judge: ANDERSON First Paragraph: Supreme Court Rule 4 is hereby amended by deleting the rule in its entirety and replacing it with the following: Rule 4 - Publication of Opinions - Not for Citation Designation - Precedential Value and Citation of Unpublished Opinions. http://www.tba.org/tba_files/TSC_Rules/Rule4amd_ord.wpd RICHARD THOMAS BOGAN VS. DORIS MAE BOGAN WITH DISSENTING OPINION Court:TCA Attorneys: For the Appellant: For the Appellee: Stephenson Todd Carl W. Eilers Todd & Dossett, P.C. 111 East Market Street 134 W. Center Street Kingsport, TN 37660 Kingsport, TN 37660 Thomas F. Bloom 500 Church St. 5th Fl. Nashville, TN 37219 Judge: SWINEY First Paragraph: This is an appeal by Ms. Bogan (Appellant) from an Order of the Chancery Court for Sullivan County which reduced Mr. Bogan's (Appellee) alimony payments to her from $2,300 monthly to $945 monthly after Appellee's retirement. On appeal, Appellant raises the issue of whether the Chancellor erred in finding that there had been a substantial and material change of circumstances under the provisions of T.C.A. S 36-5-101(a)(1), Appellee's retirement, which justified a reduction of the periodic alimony awarded her at the time of her divorce. http://www.tba.org/tba_files/TCA/boganrt_opn.wpd DISSENTING OPINION: http://www.tba.org/tba_files/TCA/boganrt_dis.wpd WANDA S. BORDERS VS. RANDY RUEL BORDERS MEMORANDUM OPINION Court:TCA Judge: HIGHERS First Paragraph: Wanda S. Borders appeals from an order of the Chancery Court of Gibson County which imposed certain conditions on Ms. Borders' custody of her minor child. http://www.tba.org/tba_files/TCA/Bordersws.wpd EUGENE BROOKS and VERDELLE BROOKS, Husband and Wife VS. T. R. LAMBERT, SR. and VADIE LAMBERT, Husband and wife, and TIM LAMBERT and GLENDA LAMBERT, Husband and Wife Court:TCA Attorneys: Erich M. Shultz of Memphis For Appellants David M. Livingston of Brownsville For Appellees Judge: CRAWFORD First Paragraph: This appeal results from a dispute concerning ownership of real property. Although the title to the property was confirmed in plaintiffs, Eugene Brooks and wife, Verdelle Brooks, and they were awarded possession of the property, they appeal the trial court's order as to the damage judgment against defendants, T.R. Lambert, Sr., and wife, Vadie Lambert; Tim Lambert and wife, Glenda Lambert. http://www.tba.org/tba_files/TCA/Brookseu.wpd KATHERYN LAKE GRIFFIN VS. STEVEN MARSHALL GRIFFIN Court:TCA Attorneys: Richard F. Vaughn, Memphis, Tennessee Attorney for Plaintiff/Appellant. Theresa H. Patterson, Memphis, Tennessee Attorney for Defendant/Appellee. Judge: FARMER First Paragraph: In this dispute between Katheryn Lake Griffin ("Wife") and Steven Marshall Griffin ("Husband"), Wife appeals from an order of the trial court (1) granting a divorce to both parties, (2) dividing the parties' marital property, (3) refusing Wife's request for alimony, and (4) refusing Wife's request for attorney's fees and litigation expenses. For the reasons set forth below, we affirm in part, reverse in part, and remand the cause to the trial court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/griffinkl.wpd ALICE HOLDEN VS. FRED'S STORES OF TENNESSEE, INC. Court:TCA Attorneys: Alan G. Crone and James J. Webb, Jr. Crone & Mason of Memphis, For Appellant David L. Bearman and Bradley E. Trammell Baker, Donelson, Bearman & Caldwell of Memphis, For Appellee Judge: CRAWFORD First Paragraph: This is a premises liability case. Plaintiff, Alice Holden, appeals from the order of the trial court granting summary judgement to defendant, Fred's Stores of Tennessee, Inc. http://www.tba.org/tba_files/TCA/Holdenal.wpd WILLIE D. HUNLEY, JR., and wife BRENDA K. HUNLEY and VELVAC, INC. VS. SILVER FURNITURE MANUFACTURING CO. and TAB SERVICE CORPORATION WITH DISSENTING OPINION Court:TCA Attorneys: JOSEPH B. YANCEY and STEPHEN E. YEAGER OF KNOXVILLE FOR APPELLANTS ROBIN M. KING OF KNOXVILLE FOR APPELLEES Judge: GODDARD First Paragraph: This is a suit filed by Willie D. Hunley, Jr., and his wife, Brenda K. Hunley, and Velvac, Inc., a third-party tort-feasor, which settled a claim of Mr. and Mrs. Hunley to determine whether the workers' compensation carrier for Mr. Hunley should be subrogated pursuant to T.C.A. 50-6-112(c) to a settlement by a third party whereby Mrs. Hunley received the sum of $200,000 in settlement of her claim for loss of consortium arising from injuries to her husband. http://www.tba.org/tba_files/TCA/hunleyw_opn.wpd DISSENTING OPINION: http://www.tba.org/tba_files/TCA/hunleywd_dis.wpd ROBERT C. LEE TRUST by and through M. STEPHEN BRANDON, TRUSTEE, and MISSTENN RADIOLOGY, P.A. VS. THE PAUL REVERE VARIABLE ANNUITY INSURANCE COMPANY, a wholly owned subsidiary of Textron, Inc Court:TCA Attorneys: Larry E. Parrish, P.C., of Memphis For Appellants George T. Lewis, III and Lori Hackleman Patterson of Memphis For Appellee Judge: CRAWFORD First Paragraph: This appeal involves a declaratory judgment suit against an insurance company seeking a declaration that a policy of insurance was never in effect and for judgment for the amount of premiums paid. From the order of the trial court granting defendant, The Paul Revere Variable Annuity Insurance Company, (Revere) summary judgment, plaintiff-appellant, Robert C. Lee Trust (Trust) appeals. http://www.tba.org/tba_files/TCA/Leetrust.wpd CHARLES W. McKINNEY VS. SMITH COUNTY, TENNESSEE Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter George G. Boyte, Jr., Assistant Attorney General Attorneys for Defendant/Appellant. Jacky O. Bellar, BELLAR AND BELLAR, Carthage, Tennessee Attorney for Plaintiff/Appellee. Judge: FARMER First Paragraph: In this inverse condemnation action, Defendant Smith County appeals the trial court's final judgment that suggested a $15,000 additur to the $7700 verdict rendered by the jury in favor of Plaintiff/Appellee Charles W. McKinney. We reverse the trial court's judgment and remand this cause for a new trial on the issue of damages. http://www.tba.org/tba_files/TCA/MCKINNEYCW.wpd JOY DAWKINS ROY and SAM D. DAWKINS, et ux VS. W. T. DIAMOND, JR. Court:TCA Attorneys: LLOYD R. TATUM TATUM & WEINMAN Henderson, Tennessee Attorney for Appellant J. HOUSTON GORDON Covington, Tennessee Attorney for Appellees Judge: HIGHERS First Paragraph: In this legal malpractice case, W.T. Diamond Jr. appeals from a jury verdict entered against him in the Circuit Court of Madison County awarding plaintiffs Joy Dawkins Roy and Sam D. Dawkins $68,800 in compensatory damages and $25,000 in punitive damages. http://www.tba.org/tba_files/TCA/Royjoy.wpd GARY BERNARD SANDERS, ET AL VS. DONAL CAMPBELL, ET AL Court:TCA Attorneys: For the Plaintiffs/Appellants: For the Defendants/Appellees: Gary Bernard Sanders, Pro Se Paul G. Summers Memphis, Tennessee Michael E. Moore Elena J. Xoinis Nashville, Tennessee Judge: LILLARD First Paragraph: This case involves a claim by a prisoner alleging a violation of civil rights. The plaintiff prisoner is a "jailhouse lawyer" who alleges that the prison's legal facilities were insufficient and contends that he was not allowed access to other prisoners in order to provide them legal advice. The trial court dismissed these claims. We affirm. http://www.tba.org/tba_files/TCA/Sandersg.wpd CHRISTINE SPANN VS. BARRY ABRAHAM, individually, and d/b/a SIR PIZZA Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendant/Appellee: Kathleen G. Morris C. Eric Stevens Nashville, Tennessee Jeffrey Zager Trabue, Sturdivant & DeWitt Robert J. Turner Nashville, Tennessee Nashville, Tennessee Judge: KOCH First Paragraph: This appeal involves a pregnancy discrimination claim asserted by an employee of a Nashville pizza restaurant. After refusing to accept a temporary reassignment requested by her employer, the employee quit her job and filed suit, alleging that her employer had discriminated against her in violation of the Tennessee Human Rights Act. The Chancery Court for Davidson County granted the employer's motion for directed verdict at the close of the employee's proof after concluding that she had not made out a prima facie case for disparate treatment because of her pregnancy. The employee asserts on this appeal that the trial court erred by directing a verdict for the employer and by amending its final order on its own motion. We have concluded that the trial court correctly directed a verdict for the employer in this case and, therefore, affirm the trial court. http://www.tba.org/tba_files/TCA/Spannc.wpd DIANE SLAWSON WATTERS VS. WILLIAM C. WATTERS and GENERAL MILLS, INC. WITH DISSENTING OPINION Court:TCA Attorneys: Daniel D. Warlick of Nashville For Appellee James D. Causey and Jean E. Markowitz of Memphis For Appellant Judge: CRAWFORD First Paragraph: This case, which is before us a second time, involves an attempt to modify a final decree of divorce. Defendant/Appellant, William G. Watters (Husband), appeals the order of the trial court denying Husband's petition to modify final decree of divorce as to child support and alimony to be paid to Plaintiff/Appellee, Diane Slawson Watters (Wife). http://www.tba.org/tba_files/TCA/Watters_opn.wpd DISSENTING OPINION: http://www.tba.org/tba_files/TCA/wattersD_dis.wpd P. PRESTON WILSON, Trustee for the Estate of Blake A. Weber and Lucy W. Weber, Debtors VS. GAIL MATHES Court:TCA Attorneys: Ronald D. Krelstein of Memphis For Appellee Tim Edwards and James F. Horner Glassman, Jeter, Edwards and Wade, P.C., of Memphis For Appellant Judge: CRAWFORD First Paragraph: This is a legal malpractice action. Defendant/appellant, Gail Mathes (Mathes), appeals the order of the trial court denying her motion for summary judgment. http://www.tba.org/tba_files/TCA/Wilsonpr_opn.wpd STATE OF TENNESSEE VS. CURTIS J. ELY WITH CONCURRING AND DISSENTING OPINIONS Court:TCCA Attorneys: FOR THE APPELLANT: J. THOMAS MARSHALL, JR. District Public Defender 101 South Main Street, Ste. 450 Clinton, TN 37716 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter MARVIN S. BLAIR, JR. Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 JAMES N. RAMSEY District Attorney General JANICE G. HICKS Assistant District Attorney General 127 Anderson County Courthouse Clinton, TN 37716 Judge: RILEY First Paragraph: Defendant, Curtis J. Ely, was convicted by an Anderson County jury of first degree murder in perpetration of robbery and received a life sentence. http://www.tba.org/tba_files/TCCA/elycj.wpd CONCURRING OPINION: http://www.tba.org/tba_files/TCCA/elycj_con.wpd DISSENTING OPINION: http://www.tba.org/tba_files/TCCA/elycj_dis.wpd STATE OF TENNESSEE VS. ERIC LAREZ, a/k/a "EASY" Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: TERRY L. JORDAN PAUL G. SUMMERS Assistant Public Defender Attorney General & Reporter P. O. Box 839 Blountville, TN 37617 ERIK W. DAAB Assistant Attorney General GERALD L. GULLEY, JR. 425 Fifth Avenue North P. O. Box 1708 Nashville, TN 37243-0493 Knoxville, TN 37901-1708 (On Appeal Only) H. GREELEY WELLS, JR. District Attorney General MARY KATHERINE HARVEY Assistant District Attorney General 140 Blountville Bypass P. O. Box 526 Blountville, TN 37617-0526 Judge: GLENN First Paragraph: The defendant, Eric Larez, appeals his convictions in the Sullivan County Criminal Court on two counts of the sale of marijuana over one-half ounce and one count of the sale of over one-half gram of cocaine. He was sentenced as a Range I offender to two years confinement for each of the counts involving marijuana and nine years in that involving cocaine, all sentences to be served concurrently. http://www.tba.org/tba_files/TCCA/LAREZE.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! 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. 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