February 1, 2000 Volume 6 -- Number 014 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):   05 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 10 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 JOEY BROWN, as next friend and natural guardian of MITCHELL W. BROWN VS. WAL-MART DISCOUNT CITIES Court:TSC Attorneys: For the Appellant: For the Appellee: Tracy Shaw John A. Day Alice Margaret Essary Donald Capparella HOWELL & FISHER BRANHAM & DAY Nashville, Tennessee Nashville, Tennessee W. Charles Doerflinger Lawrenceburg, Tennessee Judge: ANDERSON First Paragraph: We granted the application for permission to appeal in this slip and fall case to decide the issue of whether the defendant can attribute fault to an unidentified, or "phantom," tortfeasor. http://www.tba.org/tba_files/TSC/BrownJ.wpd STATE OF TENNESSEE VS. BRIAN DANIEL WITH CONCURRING OPINION Court:TSC Attorneys: For Plaintiff-Appellee: For Defendant-Appellant: Paul G. Summers Mark E. Stephens Attorney General & Reporter District Public Defender Michael E. Moore Paula R. Voss Solicitor General Assistant Public Defender Todd R. Kelley Jamie Niland Assistant Attorney General Assistant Public Defender Nashville, Tennessee (Trial Only) Randall E. Nichols District Attorney General Sixth Judicial District Scott Green Assistant District Attorney General Knoxville, Tennessee Judge: DROWOTA First Paragraph: The dispositive issue in this appeal is whether a "seizure" within the meaning of the Fourth Amendment to the United States Constitution and Article I, section 7 of the Tennessee Constitution occurred when a police officer approached the defendant, Brian Daniel, in the parking lot of a convenience store, asked Daniel to produce some identification, and retained Daniel's identification to run a computer check for outstanding warrants. http://www.tba.org/tba_files/TSC/daniel_opn.wpd CONCURRING OPINION: http://www.tba.org/tba_files/TSC/daniel_con.wpd C. WINSTON GRAGG VS. NELLIE C. GRAGG Court:TSC Attorneys: Defendant/Appellant Plaintiff/Appellee Thomas R. Prewitt, Sr. Hal Gerber ARMSTRONG, ALLEN, PREWITT, GERBER LAW OFFICE GENTRY, JOHNSTON & HOLMES, PLLC Memphis, Tennessee Memphis, Tennessee Judge: DROWOTA First Paragraph: The issue of first impression in this appeal is whether, under Tennessee law, disability benefits from a private disability insurance policy acquired with marital funds during the marriage are subject to distribution upon divorce as marital property. See Tenn. Code Ann. S 36-4-121 (1996). We conclude that disability benefits replace lost income and are not marital property subject to distribution upon divorce. However, such benefits may be considered by a trial court when determining alimony and child support obligations. Accordingly, the judgment of the Court of Appeals is affirmed. http://www.tba.org/tba_files/TSC/graggcw_opn.wpd RHONDA PRITCHETT VS. BREWER, KRAUSE & BROOKS and AMERICAN MINING INSURANCE COMPANY JUDGMENT ORDER Court:TSC Judge: PER CURIAM 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; and ... http://www.tba.org/tba_files/TSC/jopritchett.wpd STATE OF TENNESSEE VS. DANNY SPRADLIN Court:TSC Attorneys: For Appellant: For Appellee: KEVIN W. SHEPHERD JOHN KNOX WALKUP Maryville, TN Attorney General and Reporter MICHAEL E. MOORE Solicitor General KIM R. HELPER Assistant Attorney General Nashville, TN MICHAEL L. FLYNN District Attorney General PHILIP H. MORTON Asst. District Attorney General Maryville, TN Judge: BIRCH First Paragraph: We accepted review of this case in order to determine whether an agreement not to prosecute made between Danny Spradlin, the appellant, and two officers is enforceable without the district attorney general's knowledge or approval. We conclude that a district attorney general has the sole duty, authority, and discretion to prosecute criminal matters in the State of Tennessee. Police officers are, therefore, without authority to bind the district attorney general to an agreement not to prosecute. In this case, because the district attorney general neither authorized nor ratified the agreement between Spradlin and the officers, the agreement is unenforceable, and the judgment of the Court of Criminal Appeals is affirmed. http://www.tba.org/tba_files/TSC/SPRADLINd.wpd MARK ANTHONY VS. LORA LONG, NANCY McAMIS & SHERWOOD CHEVROLET and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Court:TCA Attorneys: For Appellant For Appellee State Farm Mutual Automobile Insurance Company GEORGE TODD EAST T. MARTIN BROWDER, JR. PATRICK LEDFORD Kingsport, Tennessee WILLIAM R. BERRY Moore Stout Waddell & Ledford, P.C. Kingsport, Tennessee Judge: SUSANO First Paragraph: In this tort action, the plaintiff, Mark Anthony ("Anthony"), filed suit against three defendants ("the alleged tortfeasors") and ultimately took the necessary steps to secure service of process on his uninsured motorist carrier, State Farm Mutual Automobile Insurance Company ("State Farm"), pursuant to the provisions of T.C.A. S 56-7-1206(a)(Supp. 1999). Subsequent to the filing of the record on this appeal, but before Anthony filed his appellate brief, the Tennessee Supreme Court released its opinion in Alcazar v. Hayes, 982 S.W.2d 845 (Tenn. 1998). Anthony now raises the following issue for our consideration: Should the trial court's order granting State Farm's motion for summary judgment be vacated due to the Tennessee Supreme Court's recent holding in Alcazar? http://www.tba.org/tba_files/TCA/ANTHONY.wpd WILLIAM GEORGE BALTRIP VS. ROY K. NORRIS, SUPERINTENDENT OF CLAIBORNE COUNTY SCHOOLS and THE CLAIBORNE COUNTY BOARD OF EDUCATION Court:TCA Attorneys: For Appellant For Appellees CHARLES HAMPTON WHITE DEAN B. FARMER REBECCA L. WELLS-DEMAREE KEITH L. EDMISTON Cornelius & Collins Hodges, Doughty & Carson Nashville, Tennessee Knoxville, Tennessee Judge: SUSANO First Paragraph: The plaintiff, William George Baltrip ("Baltrip"), brought this action against Roy K. Norris, Superintendent of the Claiborne County Schools ("Norris"), and the Claiborne County Board of Education ("the Board") seeking reinstatement to his position as a tenured teacher in the Claiborne County School System pursuant to T.C.A. S 49-5-513. http://www.tba.org/tba_files/TCA/baltripwg.wpd HERMAN L. GARNER, BLOUNT EXCAVATING, INC., and BLOUNT CONTRACTORS, INC. VS. BLOUNT COUNTY and THE PUBLIC BUILDING AUTHORITY OF BLOUNT COUNTY, TENNESSEE Court:TCA Attorneys: For Appellants For Appellees ROBERT N. GODDARD JOE H. NICHOLSON Goddard & Gamble DAVID R. DUGGAN Maryville, Tennessee Nicholson, Garner, and Duggan Maryville, Tennessee Judge: SUSANO First Paragraph: The plaintiffs, Herman L. Garner ("Garner"), Blount Excavating, Inc. ("Blount Excavating"), and Blount Contractors, Inc. ("Blount Contractors"), brought this action for declaratory judgment, seeking the trial court's judgment as to the validity of three contracts between the corporate plaintiffs and The Public Building Authority of Blount County, Tennessee ("Public Building Authority" or "Authority"). The trial court held that two of the contracts were "in direct violation of Tennessee Code Annotated SS 5-14-114 and 12-4-101." http://www.tba.org/tba_files/TCA/Garnerhl_opn.wpd JEFFREY L. LAWSON VS. UNIVERSITY OF TENNESSEE Court:TCA Attorneys: For Appellant For Appellee BEAUCHAMP E. BROGAN VICTORIA H. BOWLING General Counsel Norris, Tennessee University of Tennessee Knoxville, Tennessee RONALD C. LEADBETTER Associate General Counsel University of Tennessee Knoxville, Tennessee Judge: SUSANO First Paragraph: We granted this Rule 9, T.R.A.P., application to determine whether the defendant University of Tennessee ("the University") can be sued for a violation of the federal Fair Labor Standards Act. We find that it cannot be sued for such violations under the current state of the law. Accordingly, we reverse the trial court's order denying the University's motion to dismiss. http://www.tba.org/tba_files/TCA/Lawsonjl.wpd TAMARA E. LOWE, Administrator of the Estate of Terry Allen Lowe, Deceased VS. GRANVILLE SIMPSON, and wife, JUDY SIMPSON Court:TCA Attorneys: For Appellant For Appellee CHARLES T. WEBBER, JR. GEORGE H. BUXTON, III STEPHEN J. COX Oak Ridge, Tennessee Knoxville, Tennessee Judge: SUSANO First Paragraph: This is a wrongful death action. On April 28, 1998, Cynthia Lowe Armes ("Sister"), the sister of the late Terry Allen Lowe ("decedent"), instituted this action against Granville Simpson ("Granville") and his wife, Judy Simpson ("Judy"), (collectively, "the Simpsons"), alleging that the Simpsons were negligent in allowing three men, including Granville, to go armed on the Simpsons' premises on December 10, 1995, and that their negligence directly contributed to the shooting death of the decedent. http://www.tba.org/tba_files/TCA/LOWEte.wpd DONNY AND PAMELA J. OAKS VS. GARY AND LINDA STEWART Court:TCA Attorneys: For Appellants For Appellees KENNETH R. WORLEY JAMES N. POINT Werner & Worley, P.C. Rogersville, Tennessee Kingsport, Tennessee Judge: SUSANO First Paragraph: The plaintiffs, Donny and Pamela J. Oaks, filed a complaint seeking only "exemplary damages" and related -- in an unspecified way -- to the sale of a residence by the defendants, Gary and Linda Stewart, to the plaintiffs. The trial court granted the defendants' motion to dismiss or for summary judgment, which motion is based on two grounds: (1) the complaint seeks exemplary damages without any claim for actual damages; and (2) the plaintiffs' claim is barred by the statute of limitations. The plaintiffs appeal the dismissal of their complaint, arguing that their claim for damages is governed by a four-year statute of limitations and therefore was timely filed. http://www.tba.org/tba_files/TCA/oaksdp.wpd REUBEN N. PELOT, III VS. NICHOLAS S. CAKMES Court:TCA Attorneys: JACK B. DRAPER AND DAN D. RHEA OF KNOXVILLE FOR APPELLANT H. BRUCE GUYTON AND DAVID T. LEWIS OF KNOXVILLE FOR APPELLEE Judge: GODDARD First Paragraph: The plaintiff-appellant filed suit to enforce a Shareholders Agreement which required that the final payment for his stock be based upon an appraisal of the corporation's worth. The trial court directed him to accept as a final payment for his stock, the amount specified in a modification of the original Agreement. From this order the plaintiff-appellant appeals. http://www.tba.org/tba_files/TCA/pelotreu.wpd STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY VS. BRIAN HOWARD, BARBARA CRESSE, AND CHARLES TOLFA, PERSONAL REPRESENTATIVE OF THE ESTATE OF SHEILA K. TOLFA, THE ESTATE OF BRIDGETT WINGO, AND TERRY MORTON Court:TCA Attorneys: LOUIS A. MCELROY, II AND TOBY R. CARPENTER OF KNOXVILLE FOR APPELLANT BARBARA CRESSE CHARLES DUNGAN OF MARYVILLE FOR APPELLANT TERRY MORTON PAUL E. DUNN AND STEVE ERDELY, IV OF KNOXVILLE FOR APPELLEE Judge: GODDARD First Paragraph: This is an appeal from the Circuit Court's grant of summary judgment in favor of State Farm Mutual Automobile Insurance Company (hereinafter "State Farm"). http://www.tba.org/tba_files/TCA/statefarmhow.wpd CAROLYN TURNER VS. MONROE FARMERS COOPERATIVE Court:TCA Attorneys: HUBERT D. PATTY, Maryville, for Appellant ANDREW R. TILLMAN, Knoxville, for Appellee Judge: GODDARD First Paragraph: This appeal involves the issuance of a worthless check. Carolyn Turner, the Plaintiff/Appellant, filed this action in which she alleged malicious prosecution and outrageous conduct against the Monroe Farmers Cooperative, the Defendant/Appellee, after charges against her for issuing a worthless check were dismissed. v http://www.tba.org/tba_files/TCA/turnercar.wpd MILDRED WHALEY VS. SCOTT GRIFFITH WOLFENBARGER Court:TCA Attorneys: For Appellant For Appellee GEORGE W. MORTON, JR. WILLIAM R. BANKS Morton & Morton, PLLC T. SCOTT JONES Knoxville, Tennessee C. EDWARD DANIEL Banks & Jones Knoxville, Tennessee Judge: SUSANO First Paragraph: This is a suit for damages arising out of personal injuries sustained by the plaintiff, Mildred Whaley, in a two- vehicle accident that occurred at the intersection of Frontage Road and Sevier Avenue in Knoxville. The trial court granted the plaintiff a directed verdict as to the issue of the defendant's liability. http://www.tba.org/tba_files/TCA/Whaleym.wpd STATE OF TENNESSEE VS. TERRY HAWN Court:TCCA Attorneys: For Appellant: For Appellee: John E. Appman Paul G. Summers P.O. Box 99 Attorney General and Reporter Jamestown, TN 38556 450 James Robertson Parkway Nashville, TN 37243-0493 Marvin E. Clements Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Owen G. Burnett Assistant District Attorney General P.O. Box 706 Livingston, TN 38570 Judge: OGLE First Paragraph: On June 18, 1996, the appellant, Terry Hawn, was convicted by a jury in the Overton County Criminal Court of aggravated burglary, theft over $1,000, conspiracy to commit aggravated burglary, and conspiracy to commit theft over $1,000. On January 9, 1997, the trial court sentenced the appellant as a career offender to fifteen years incarceration for the aggravated burglary conviction, twelve years incarceration for the theft over $1,000 conviction, twelve years incarceration for the conspiracy to commit aggravated burglary conviction, and six years incarceration for the conspiracy to commit theft over $1,000 conviction. http://www.tba.org/tba_files/TCCA/hawnt.wpd STATE OF TENNESSEE. VS. DANIELLE JORDAN Court:TCCA Attorneys: For Appellant For Appellee Mr. Justin Johnson Paul G. Summers 2131 Murfreesboro Road Attorney General and Reporter Suite 205 425 Fifth Avenue North Nashville, TN 37217 Nashville, TN 37243 Elizabeth B. Marney Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 Ms. Katrin Miller Ms. Lila Statom Ms. Diane Lance Assistant District Attorneys General Washington Square, Suite 500 222 Second Avenue South Nashville, TN 37201 Judge: OGLE First Paragraph: The appellant, Danielle Jordan, was convicted by a Davidson County jury of one (1) count of aggravated child abuse and one (1) count of reckless homicide. The trial court sentenced her as a Range I offender to concurrent terms of twenty-five (25) years incarceration for aggravated child abuse and four (4) years incarceration for reckless homicide. http://www.tba.org/tba_files/TCCA/jordand.wpd STATE OF TENNESSEE VS. RICKY LEE TURNER Court:TCCA Attorneys: For the Appellant: For the Appellee: Carol Ann Barron Paul G. Summers 264 Third Avenue Attorney General of Tennessee Dayton, TN 37321 and Mark E. Davidson Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243 James Michael Taylor District Attorney General 265 Third Avenue, Suite 300 Dayton, TN 37321 Judge: TIPTON First Paragraph: The defendant, Ricky Lee Turner, appeals as of right from his convictions following a jury trial in the Rhea County Circuit Court for aggravated child abuse, a Class A felony, and child abuse, a Class D felony, of his daughters who were under six years of age. The defendant was sentenced to twenty years in the custody of the Department of Correction for the aggravated child abuse conviction and two years for the child abuse conviction, to be served concurrently. http://www.tba.org/tba_files/TCCA/Turnerrl.wpd STATE OF TENNESSEE VS. VIRGIL L. YOUNG Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MACK GARNER PAUL G. SUMMERS District Public Defender Attorney General & Reporter 419 High Street Maryville, TN 37804 ELIZABETH B. MARNEY (At Trial) Assistant Attorney General 2nd Floor, Cordell Hull Building JULIE A. RICE 425 Fifth Avenue North P.O. Box 426 Nashville, TN 37243 Knoxville, TN 37901-0426 (On Appeal) WILLIAM REED District Attorney General 363 Court Street Maryville, TN 37804 Judge: WOODALL First Paragraph: Defendant, Virgil Lynn Young, appeals the trial court's revocation of his placement in a community corrections program and the reinstatement of his original sentence. After a review of the record the Court finds that this judgment should be affirmed. http://www.tba.org/tba_files/TCCA/youngvl.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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