December 2, 1999 Volume 5 -- Number 164 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):   00 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 07 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 GREGORY ALLEN, BNF LISA BUMPASS VS. MICHAEL L. PAYNE Court:TCA Attorneys: JEFFREY W. RUFOLO, SUMMERS & WYATT, P.C., Chattanooga, for Plaintiffs-Appellants. MICHAEL R. CAMPBELL, CAMPBELL & CAMPBELL, Chattanooga, for Defendant-Appellee. Judge: FRANKS First Paragraph: In this negligence action against defendant scout master, the jury returned a verdict assigning 50% of the fault for plaintiff's injuries to plaintiff, and 50% to defendant. http://www.tba.org/tba_files/TCA/alleng.wpd RONA RENAYE EDWARDS BAKER VS. LARRY WAYNE BAKER Court:TCA Attorneys: For the Appellant: For the Appellee: David W. Tipton J. Wesley Edens Tipton & Jones Icenhour & Edens 301 Eighth Street P. O. Box 1919 Bristol, TN 37620 Bristol, TN 37621-1919 Judge: SWINEY First Paragraph: In this divorce case, Larry Wayne Baker, Defendant/Appellant ("Husband"), appeals the Trial Court's division of assets and debts in two respects: (1) the award to Rona Edwards Baker, Plaintiff/Appellee ("Wife") of 40 percent ($8,000) of the net increase in value of Husband's separate real property during the marriage, and (2) the assignment to Husband of debts of $7,300 owed on Wife's credit card and $5,000 owed on her automobile. We affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/BakerRona.wpd BEAL BANK, S.S.B. VS. RBM COMPANY, a Tennessee general partnership, d/b/a Webster Enterprises, H.A. ("BAM") WEBSTER, W. MICHAEL WEBSTER and RICHARD J. WEBSTER and ROBERT F. HEFFERNAN AND J. ROGER HAMMOND Court:TCA Attorneys: For Appellant For Appellee Heffernan JAMES R. KELLEY ALAN B. EASTERLY MARC T. McNAMEE F. SCOTT LEROY JOHN M. PRICE GARY MASSEY, JR. Neal & Harwell, PLC Leitner, Williams, Dooley & Napolitan Nashville, Tennessee Chattanooga, Tennessee For Appellee Hammond C. CREWS TOWNSEND ALAN D. HALL Miller & Martin Chattanooga, Tennessee PETER B. McGLYNN Bernkopf, Goodman & Baseman LLP Boston, Massachusetts Judge: SUSANO First Paragraph: This case traces its roots to a 1989 bank loan made in the state of Georgia by The Citizens and Southern National Bank ("C&S Bank") to RBM Company ("RBM"). The loan was evidenced by a promissory note ("the 1989 note") and was accompanied by the guaranties of the defendants H.A. ("Bam") Webster, W. Michael Webster, Richard J. Webster (the three Websters being hereinafter collectively referred to as "the Websters"), Robert F. Heffernan ("Heffernan"), and J. Roger Hammond ("Hammond"). http://www.tba.org/tba_files/TCA/BealBank.wpd CITY OF NEWPORT, TENNESSEE, and THE NEWPORT, TENNESSEE REGIONAL PLANNING COMMISSION VS. MASENGILL AUCTION CO., and WYNDHAM H. GABHART Court:TCA Attorneys: For the Appellant: For the Appellee: Wyndham H. Gabhart William O. Shults Pro Se Newport Judge: SWINEY First Paragraph: The basis of this appeal is a challenge to the jurisdiction of the Trial Court by Defendant/Appellant, Wyndham H. Gabhart, Esq. Defendant Gabhart asserts that the jurisdiction of the Cocke County Chancery Court over a suit filed by Plaintiffs City of Newport (hereinafter, "Newport") and the Newport, Tennessee Regional Planning Commission (hereinafter, "Commission") was absent because of a prior, related, suit filed by Gabhart in a United States District Court. http://www.tba.org/tba_files/TCA/CityofNewport.wpd JOHN CUPP, Sheriff of Hamilton County, and the HAMILTON COUNTY SHERIFF'S DEPARTMENT VS. MARK KIMSEY and the HAMILTON COUNTY SHERIFF'S DEPARTMENT CIVIL SERVICE BOARD Court:TCA Attorneys: TERRY L. MCGHEHEY, Special Counsel of Hamilton County Attorney's Office, Chattanooga, for Plaintiffs-Appellees. W. GERALD TIDWELL, JR., Chattanooga, for Appellant, Mark Kimsey. Judge: FRANKS First Paragraph: In this action, the Trial Judge remanded the case to the Civil Service Board to make further findings, and Officer Mark Kimsey ("appellant") has appealed. Appellant's supervisor disciplined appellant for insubordination, and a Disciplinary Committee of the Sheriff's Department investigated the matter and concluded the charges against appellant were substantiated. http://www.tba.org/tba_files/TCA/cuppj.wpd CYNTHIA DIANNE ELKINS VS. JOSEPH C. ELKINS Court:TCA Attorneys: WILLIAM H. HORTON, HORTON, MADDOX & ANDERSON, PLLC, Chattanooga, for Plaintiff-Appellee. ROBERT D. BRADSHAW, JENKINS & BRADSHAW, P.C., Chattanooga, for Defendant-Appellant. Judge: FRANKS First Paragraph: In this divorce action, the husband appeals from the property division made by the Trial Court, and the wife appeals from the award of rehabilitative alimony and seeks attorney's fees. http://www.tba.org/tba_files/TCA/elkinsc.wpd STEVEN R. LINN, SUSAN D. LINN,DAVID L. LINN and WILMA R. LINN VS. VERA E. ELROD and OLIN D. ELROD VS. ANNA LEE LEINART GROSS Court:TCA Attorneys: T. SCOTT JONES OF KNOXVILLE FOR VERA E. ELROD and OLIN D. ELROD VIC PRYOR and KATHY PARROTT OF JACKSBORO FOR STEVEN R. LINN, SUSAN D. LINN, DAVID L. LINN and WILMA R. LINN J. PHILLIP HARBER OF CLINTON FOR ANNA LEE LEINART GROSS Judge: GODDARD First Paragraph: The suit presently on appeal originated by Steven R. Linn and his son, David L. Linn, and their wives filing suit against Vera E. Elrod and Olin D. Elrod, seeking a mandatory injunction requiring removal of a fence erected upon property the Linns claim to be owned by them. Upon the filing of an answer and the counter-complaint by the Elrods and the adding of a third-party, Anna Lee Leinart Gross, as a Defendant, it resolved itself into a property line dispute. http://www.tba.org/tba_files/TCA/linnste.wpd STATE OF TENNESSEE VS. ADAM GEORGE COLZIE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: WESLEY MACNEIL OLIVER PAUL G. SUMMERS Edwards, Simmons & Oliver Attorney General & Reporter 1501 Sixteenth Avenue South Nashville, TN 37212 ELIZABETH B. MARNEY Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 RONALD DAVIS District Attorney General LEE DRYER Assistant District Attorney General P.O. Box 937 Franklin, TN 37065 Judge: WOODALL First Paragraph: The Williamson County Grand Jury indicted Defendant Adam George Colzie for reckless driving and possession of marijuana with intent to sell and deliver. Defendant filed a motion to suppress evidence that was obtained during a search of his vehicle. Following a hearing, the trial court denied the motion. Defendant pled guilty to reckless driving and possession of marijuana with intent to sell, reserving a certified question of law pursuant to Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure. The trial court imposed concurrent sentences of six months for reckless driving and two years for possession of marijuana with intent to sell, with both sentences to be served on probation. Defendant challenges his convictions, raising the following issue: whether the trial court erred when it denied the motion to suppress. After a review of the record, briefs of the parties, and applicable law, we reverse the conviction for possession of marijuana with intent to sell and dismiss that charge, and affirm the conviction for reckless driving. http://www.tba.org/tba_files/TCCA/colzieag.wpd STATE OF TENNESSEE VS. LINDA JUNE CROSS Court:TCCA Attorneys: For the Appellant: For the Appellee: Kenneth Francis Irvine Paul G. Summers 606 W. Main Street, Suite 350 Attorney General of Tennessee P.O. Box 64 and Knoxville, Tennessee 37902 Erik W. Daab Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243 William Edward Gibson District Attorney General and David A. Patterson Assistant District Attorney 145 S. Jefferson Avenue Cookeville, TN 38501-3424 Judge: TIPTON First Paragraph: By the grant of a delayed appeal, the defendant, Linda June Cross, appeals her conviction by a jury in the Cumberland County Criminal Court for first degree murder. http://www.tba.org/tba_files/TCCA/CROSSLJ.wpd HARTWELL DEE PRICE VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: KEVIN T. SOMMERS (on appeal) PAUL G. SUMMERS 404 North Main Street Attorney General & Reporter Kingston Springs, TN 37082 GEORGIA BLYTHE FELNER SHIPP R. WEEMS (at trial) Counsel for the State Public Defender 425 Fifth Avenue North Nashville, TN 37243 STEVE STACK Assistant Public Defender DAN MITCHUM ALSOBROOKS P. O. Box 85 District Attorney General Ashland City, TN 37015 JAMES W. (WALLY) KIRBY Assistant District Attorney 105 Sycamore Street Ashland City, TN 37015 Judge: WILLIAMS First Paragraph: The petitioner, Hartwell Dee Price, appeals from the Cheatham County Circuit Court's order denying his petition for post-conviction relief after an evidentiary hearing. The petitioner pled nolo contendere to a charge of murder in the first degree and received a life sentence without parole. On appeal, he asserts that he did not understand the terms of his plea and that his trial counsel was ineffective. We AFFIRM the trial court's order denying the petition. http://www.tba.org/tba_files/TCCA/pricehd.wpd STATE OF TENNESSEE VS. FREDERICK TURNER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MICHAEL A. WALCHER PAUL G. SUMMERS Office of Public Defender Attorney General & Reporter 1609 College Park Drive, Morristown, Tennessee 37813 CLINTON J. MORGAN Assistant Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243 CECIL C. MILLS Assistant District Attorney General 109 S. Main Street Greeneville, Tennessee 37743 Judge: WALKER First Paragraph: Appellant appeals as a matter of right the order entered by the trial court revoking probation. Appellant entered a plea of guilty in January, 1997, to possession of a schedule II controlled substance with intent to sell, a B felony, and received a sentence of nine years as a standard offender. He also entered a plea of guilty to possession of schedule VI controlled substance more than 10 pounds, with intent to sell, a D felony, and received a sentence of four years as a standard offender, and a plea of guilty to a misdemeanor, concurrent to the nine year sentence. http://www.tba.org/tba_files/TCCA/TURNERF.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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