January 26, 2000 Volume 6 -- Number 012 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 06 New Opinion(s) from the Tennessee Court of Appeals 03 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 RUTH M. COE VS. CITY OF SEVIERVILLE Court:TCA Attorneys: For the Appellant: For the Appellee: Linda J. Hamilton Mowles Lawrence P. Leibowitz LEWIS, KING, KREIG, WALDROP Melissa A. Ashburn & CATRON, P.C. 608 S. Gay Street 620 Market Street, Fifth Floor Knoxville, TN 37902 P. O. Box 2425 Knoxville, TN 37901 Judge: SWINEY First Paragraph: Ruth Coe ("Plaintiff") filed this complaint seeking an order from the Sevier County Chancery Court directing the City of Sevierville ("Defendant") to issue a permit for her to demolish and reconstruct an outdoor advertising sign on her property, pursuant to T.C.A. S 13-7-208. The Chancellor ordered Defendant to issue the permit. The issues raised in this appeal are: (1) whether the complaint should have been dismissed because Plaintiff failed to exhaust her administrative remedies, and (2) whether Plaintiff's sign as a pre-existing non-conforming structure is entitled to the protection of T.C.A. S 13-7-208, the "Grandfather Statute." For the reasons herein stated, we reverse the judgment of the Trial Court and remand the case to the Trial Court for further proceedings consistent with this Opinion. http://www.tba.org/tba_files/TCA/CoeRuth.wpd CITY OF CHATTANOOGA VS. BELLSOUTH TELECOMMUNICATIONS, INC., MCI METRO ACCESS TRANSMISSION SERVICES, INC., AMERICAN COMMUNICATIONS SERVICES, INC., and TCG MIDSOUTH, INC. Court:TCA Attorneys: RANDALL I. NELSON and LAWRENCE W. KELLY, Chattanooga, for Plaintiff-Appellant. DAVID A. HANDZO, JANIS C. KESTENBAUM, JENNER & BLOCK, Washington, and H. FREDERICK HUMBRACHT, JR., BOULT, CUMMINGS, CONNERS & BERRY, PLC, Nashville, for MCI Metro Access Transmission Services, Inc. C. CREWS TOWNSEND and LEAH M. GERBITZ, MILLER & MARTIN, LLP., Chattanooga, for American Communication Services of Chattanooga, Inc. J. HENRY WALKER, and FRED A. WALTERS, Atlanta, and ROBERT G. NORRED, JR., SPEARS, MOORE, REBMAN & WILLIAMS, INC., Chattanooga, for Bellsouth Telecommunications, Inc. Judge: FRANKS First Paragraph: In this declaratory judgment action brought by the City of Chattanooga ("City"), the Trial Judge held the disputed ordinance invalid, and the City has appealed. http://www.tba.org/tba_files/TCA/ctyofch.wpd J. C. PENNEY NATIONAL BANK VS. RUTH E. JOHNSON, Commissioner of Revenue, State of Tennessee Court:TCA Attorneys: MICHAEL D. SONTAG BRYAN W. METCALF BASS, BERRY & SIMS, PLC Nashville, Tennessee Attorneys for Appellant PAUL G. SUMMERS Attorney General & Reporter MICHAEL E. MOORE Solicitor General JOE C. PEEL Senior Counsel Office of the Attorney General Tax Division Nashville, Tennessee Attorneys for Appellee JOSEPH W. GIBBS REBECCA C. BLAIR BOULT, CUMMINGS, CONNERS & BERRY, PLC Nashville, Tennessee DIANN L. SMITH Committee on State Taxation Washington, D.C. JEFFREY A. FRIEDMAN WILLIAM D. PELTZ BOBBY L. BURGNER Committee on State Taxation Washington, D.C. Attorneys for Amicus Curiae Committee on State Taxation JOHN ROBERT JACOBSON BOWEN, RILEY, WARNOCK & JACOBSON Nashville, Tennessee LINDA ARNSBARGER PAUL H. FRANKEL NEIL I. POMERANTZ THOMAS H. STEELE MORRIS & FOERSTER, LLP Washington, D.C. Attorneys for Amicus Curiae VISA U.S.A. INC. and MASTERCARD INTERNATIONAL, INC. Judge: HIGHERS First Paragraph: The J.C. Penney National Bank appeals from the Chancery Court of Davidson County, which upheld the imposition of franchise and excise taxes against the Bank by the Tennessee Department of Revenue. For the reasons stated herein, we reverse the decision of the trial court. http://www.tba.org/tba_files/TCA/JCPenney.wpd ESTHER JANE KERR VS. HOWARD TRUITT KERR Court:TCA Attorneys: For the Appellant: For the Appellee: Keith McCord Charles M. Clifford McCORD, TROUTMAN 339 High Street & IRWIN, P.C. Maryville, TN 37804 1300 First Tennessee Plaza P. O. Box 2046 Knoxville, TN 37901 Judge: SWINEY First Paragraph: This is an appeal by Howard Truitt Kerr ("Husband") of the division of marital property and the award of alimony in solido and periodic alimony to Esther Jane Kerr ("Wife") in the divorce granted to Wife based on the statutory grounds of inappropriate marital conduct after a 35-year marriage. From a marital estate of $613,000, the Trial Court awarded Husband marital assets of approximately $334,707 plus household goods. Wife was awarded marital assets of approximately $277,607 plus household goods and an additional $80,000 as alimony in solido. The Trial Court also awarded Wife $1,400 per month as alimony in futuro, and ordered Husband to pay Wife's monthly health insurance premiums. We affirm the judgment of the Trial Court as to the division of marital assets and the award of periodic alimony and modify the judgment as to the award of alimony in solido. http://www.tba.org/tba_files/TCA/KerrEsther.wpd ESTATE OF GROVER PEMBERTON BY EXECUTOR BROMMA PEMBERTON and INDUSTRIAL LOGGING, A sole proprietorship of Sharon Lay VS. MABEL PENNINGTON and GEORGE PENNINGTON Court:TCA Attorneys: HAROLD G. JEFFERS OF ONEIDA FOR APPELLANTS MARK BLAKLEY OF HUNTSVILLE FOR APPELLEES Judge: GODDARD First Paragraph: The Penningtons filed a petition to rehear which takes issue with the following statement contained in our original opinion: "The parties stipulated that Bromma Pemberton and her predecessors in title paid property taxes on the disputed property for more than 20 years." http://www.tba.org/tba_files/TCA/pemberton_reh.wpd PATRICIA J. THOMPSON VS. JOHNNY W. HULSE, J.E. LIGHT, DAVID CHEEK, and THE BOARD OF TRUSTEES OF THE HORSE CREEK FREEWILL BAPTIST CHURCH Court:TCA Attorneys: For the Appellant: For the Appellee: Thomas R. Bandy, III Frank B. Dodson Kingsport Kingsport Judge: SWINEY First Paragraph: This is an appeal from the Trial Court's declaring a prescriptive easement in Sullivan County in favor of the dominant tenement owned by Plaintiff/Appellee Patricia A. Thompson ("Plaintiff") across the lands of Horse Creek Freewill Baptist Church ("Church") as the servient tenement. Defendants/Appellants ("Defendants") are the pastor and trustees of Horse Creek Freewill Baptist Church, and are parties to this litigation in those capacities. The Trial Court found the use of the Church's driveway by Plaintiff to be open and adverse to the Church, and that Plaintiff could combine her twelve-year ownership with her predecessor's sixteen-year period of ownership to establish the requisite twenty-year period for asserting prescriptive easement. Defendants challenge the Trial Court's award of prescriptive easement on appeal. For the reasons stated herein, the Order of the Trial Court is reversed and the cause of action dismissed. http://www.tba.org/tba_files/TCA/Thompson.wpd STATE OF TENNESSEE VS. CAROL L. HUGHES Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MICHAEL J. FLANAGAN PAUL G. SUMMERS 95 White Bridge Road #208 Attorney General & Reporter Nashville, TN 37205 (On Appeal Only) TODD R. KELLEY Assistant Attorney General TERRY J. LEONARD 2nd Floor, Cordell Hull Building P.O. Box 957 425 Fifth Avenue North 9E Court Square Nashville, TN 37243 Camden, TN 38320 (At Trial Only) DAN M. ALSOBROOKS District Attorney General SUZANNE LOCKERT Assistant District Attorney General P.O. Box 580 Charlotte, TN 37036 Judge: WOODALL First Paragraph: Defendant Carol L. Hughes pled guilty to one count aggravated assault, one count reckless endangerment, and one count evading arrest in Dickson County Circuit Court. Following a sentencing hearing, the trial court sentenced her to concurrent sentences of four (4) years, one (1) year, and 11 months, 29 days, respectively. The trial court ordered that each sentence was to be suspended after an eighteen (18) month period of incarceration. http://www.tba.org/tba_files/TCCA/hughescl.wpd STATE OF TENNESSEE VS. RICKY HILL KRANTZ Court:TCCA Attorneys: For the Appellant: For the Appellee: David M. Siegel Charles W. Burson Jeff Powell Attorney General of Tennessee Assistant Public Defenders and Stahlman Building Christina S. Shevalier 211 Union Street Assistant Attorney General of Tennessee Nashville, TN 37201-5066 450 James Robertson Parkway (AT TRIAL) Nashville, TN 37243-0493 Karl Dean Victor S. Johnson, III District Public Defender District Attorney General and and Jeffrey A. DeVasher Katrin Novak Miller Michele S. Hall Nicholas Bailey Sheila Jones Assistant District Attorneys General Assistant Public Defenders 102 Metro Courthouse Stahlman Bldg. Nashville, TN 37201 211 Union Street Nashville, TN 37201-5066 (ON APPEAL) Judge: TIPTON First Paragraph: The Tennessee Supreme Court remanded this case to us for reconsideration of our prior holding regarding the state's loss or destruction of the defendant's blood sample in light of State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999). We previously held that the defendant's right to due process was not violated by the state's failure to preserve the blood sample because the failure did not result from bad faith on the part of the police. The bad faith standard is from Arizona v. Youngblood, 488 U.S. 55, 57-58, 109 S. Ct. 333, 337 (1988) and has previously been used by this court. See, e.g., State v. Eldridge, 951 S.W.2d 755, 778 (Tenn. Crim. App. 1997). However, in Ferguson, our supreme court rejected the bad faith standard under the Tennessee Constitution and held that the proper inquiry is whether a trial conducted without the evidence would be fundamentally fair. http://www.tba.org/tba_files/TCCA/Krantzrh.wpd JOHN V. WOODRUFF VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant For Appellee William A. Lane Paul G. Summers 3236 Dilton Mankin Road Attorney General and Reporter Murfreesboro, TN 37127 425 Fifth Avenue North Nashville, TN 37243-0493 Marvin E. Clements, Jr. Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Judge: OGLE First Paragraph: The petitioner, John V. Woodruff, Jr., appeals the denial by the Davidson County Criminal Court of his petition for post-conviction relief on October 15, 1998. On appeal, the petitioner alleges that his counsel provided ineffective assistance due to counsel's failure to adequately advise him concerning his right to testify at his trial and in overriding the petitioner's desire to testify. Additionally, the petitioner asserts that counsel was ineffective in failing to ensure the redaction from evidence introduced at the petitioner's trial of a reference to the petitioner's parole status at the time of his offenses. Following a review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/woodruffj.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! 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