February 3, 2000 Volume 6 -- Number 016 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 01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 13 New Opinion(s) from the Tennessee Court of Appeals 01 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 DORIS HOWARD VS. STERLING PLUMBING GROUP, INC. Court:TSC - Workers Comp Panel Attorneys: FOR THE APPELLEE: FOR THE APPELLANT: BRUCE MOSS DAVID A. HUGHES Conley, Campbell, Moss, Smith Ogletree, Deakins, Nash, Smoak 317 South Third Street & Stewart, P.C. P. O. Box 427 600 Peachtree Street, Suite 2100 Union City, Tennessee 38281 Atlanta, Georgia 30308 Judge: TATUM First Paragraph: This workers' compensation appeal was referred to the Special Workers' Compensation Appeals Panel of the Supreme Court pursuant to Tennessee Code Annotated S 50-6-225(e)(3) (Supp. 1998) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. http://www.tba.org/tba_files/TSC_WCP/HOWARD.wpd ROBERT BEAN, FRANKLIN SHAFFER, DAVID AUTRY, MACK ROBERTS, VS. NED RAY McWHERTER, in his capacity as Governor of the State of Tennessee, CHARLES W. BURSON, Attorney General of the State of Tennessee, TENNESSEE WILDLIFE RESOURCES COMMISSION and GARY MYERS, Director of the Wildlife Resources Agency Court:TCA Judge: CANTRELL First Paragraph: The appellants have asked the court to rehear this appeal because we did not address the facial conflict between the definitions of Class II and Class III wildlife, leaving the public without any guidance as to what species are in Class II. Since the possession of Class II wildlife without a permit is a crime, and no permit is required for the possession of those species in Class III, the determination of what is included in Class II is the critical determination. And a person of ordinary intelligence must be able to make it. State v. Thomas, 635 S.W.2d 114 (Tenn. 1982). http://www.tba.org/tba_files/TCA/beanr_reh.wpd BARBARA BRANUM VS. CORRINE W. AKINS and MELVIN L. AKINS Court:TCA Attorneys: JOHN C. CAVETT, JR., OF CHATTANOOGA FOR APPELLANT ROBERT G. NORRED OF CHATTANOOGA FOR APPELLEES Judge: GODDARD First Paragraph: This is a suit wherein the Plaintiff Barbara Brunum, inter alia, seeks to set aside a conveyance by her mother, the Defendant Corrine W. Akins--who held certain real property in trust for her--to her brother, Defendant Melvin L. Akins. The basis of the suit is that her mother violated her fiduciary duty by conveying the property to her brother and that he was guilty of fraud and conspiracy in accepting the transfer. The only consideration for the transfer was the assumption and payment of a prior secured indebtedness against the property in the amount of $29,392.25. http://www.tba.org/tba_files/TCA/branumbar.wpd CHARLOTTE BROWN VS. BIRMAN MANAGED CARE, INCORPORATED, BIRMAN & ASSOCIATES, INCORPORATED, DAVID N. BIRMAN, SUE D. BIRMAN, WILLIAM F. BARENKAMP, II, AND KATHY BARENKAMP Court:TCA Attorneys: STEVE D. GIBSON 112 S. Main Street Ashland City, Tennessee 37015 For Plaintiff/Appellant KELLI L. THOMPSON 900 South Gay Street Knoxville, Tennessee 37902 Attorney for Birman Managed Care, Inc., Birman & Associates, Inc. Dr. David N. Birman and Sue D. Birman LARRY L. CRAIN 101 Westpark Drive Brentwood, Tennessee 37027 Attorney for William F. Barenkamp, II and Kathy Barenkamp Judge: CANTRELL First Paragraph: The divorced mother of a minor child claimed that her former husband and his employer conspired to fraudulently understate the husband's income, in order to defeat her attempts to have his child support obligation increased to an appropriate amount. The trial court granted summary judgment to the defendants. We reverse. http://www.tba.org/tba_files/TCA/brownc.wpd STEVEN B. DARGI ANDREA L. DARGI, VS. THE TERMINIX INTERNATIONAL COMPANY, L.P.; DICK L. DOAK, NCARB ARCHITECT, d/b/a CENN-TENN BUILDING CONSULTANTS; EARLE DuRARD, d/b/a ResCOMM; and AMICA MUTUAL INSURANCE COMPANY, STATE OF TENNESSEE Court:TCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN E. HERBISON PAUL G. SUMMERS Nashville, Tennessee Attorney General & Reporter ELIZABETH T. RYAN Assistant Attorney General Nashville, Tennessee Judge: CANTRELL First Paragraph: The plaintiff repeatedly cursed and insulted the defendant's attorney during a taped deposition. The attorney played portions of the tape during the trial. The trial court found that the plaintiff's utterances constituted criminal contempt. We affirm. http://www.tba.org/tba_files/TCA/dargisb.wpd DUFFY TOOL & STAMPING, INC. VS. BOSCH AUTOMOTIVE MOTOR SYSTEMS CORPORATION, formerly known as BG AUTOMOTIVE MOTORS, INC. Court:TCA Attorneys: For Plaintiff/Appellant: For Defendant/Appellee: John H. Rowland Joseph F. Welborn, III Barbara A. Rose Bass Berry & Sims Baker Donelson Bearman & Caldwell Nashville, Tennessee Nashville, Tennessee Judge: KOCH First Paragraph: This appeal involves a contract dispute between a manufacturer of automobile parts and one of its suppliers. After the manufacturer complained repeatedly about the quality of its parts, the supplier informed the manufacturer that it would no longer supply the parts even though two years remained on its contract. The manufacturer rejected a portion of the supplier's last shipment of parts and contracted with another supplier to take over the manufacturing of the parts. http://www.tba.org/tba_files/TCA/DuffyTool.wpd IN THE MATTER OF: K. E. C. D. A child Under the Age of 18 Years Court:TCA Attorneys: GARY M. WILLIAMS 181 EAST MAIN STREET, HAZEL PATH JEFFERSON BUILDING, SUITE ONE HENDERSONVILLE, TENNESSEE 37075 ATTORNEY FOR PETITIONER/APPELLANT LASHUARDA LAVELL VENABLE 104 WALNUT CREST GALLATIN, TENNESSEE 37066 PRO SE/RESPONDENT/APPELLEE Judge: COTTRELL First Paragraph: This appeal involves a dispute over the surname of a child born to unmarried parents. The biological father ("Father") of the minor child, seeks reversal of the juvenile court's denial of his motion to change the child's last name. Over the objections of the mother ("Mother"), Father sought to change his son's last name to his own to reflect his paternity. For the following reasons, we vacate and remand. http://www.tba.org/tba_files/TCA/kecd.wpd EVELYN LOGUE VS. THE SHELBYVILLE HOUSING AUTHORITY, THE BOARD OF COMMISSIONERS for the SHELBYVILLE HOUSING AUTHORITY, and HAROLD ROSE, in his official capacity as Chairman of THE BOARD OF COMMISSIONERS for the SHELBYVILLE HOUSING AUTHORITY Court:TCA Attorneys: FOR APPELLANT: FOR APPELLEES: W. GARY BLACKBURN JOHN R.WHITE JOHN R. CALLCOTT Union Planter's Bank Building, 414 Union Street, Suite 2050 Suite 202 Nashville, Tennessee 37219 Shelbyville, Tennessee 37160 STEVEN M. BERNSTEIN DARREN T. HORVATH 945 East Paces Ferry Road Atlanta, Georgia 30326 Judge: CANTRELL First Paragraph: The controlling issues in this appeal are (1) whether under the terms of an employee policy manual the dismissed employee was something other than an employee at will, and (2) whether the action of the Board of the Shelbyville Housing Authority in upholding the dismissal was arbitrary or illegal or lacked material evidence to support it. The Chancery Court of Bedford County reviewed the record and found that the Board's action was supported by substantial and material evidence and was not arbitrary nor illegal. We affirm. http://www.tba.org/tba_files/TCA/loguee.wpd OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC., HAROLD LANDRY, JIMMY HUX d/b/a HUX TRUCKING, RICHARD KERSHMAN, and LAUREL BARRICK, Individually and On Behalf of All Others Similarly Situated, VS. CONCORD EFS, INC., EFS NATIONAL BANK, FLYING J. INC., and PILOT CORPORATION Court:TCA Attorneys: FOR THE APPELLANTS: FOR THE APPELLEES W. GARY BLACKBURN CONCORD EFS, INC. and JOHN R. CALLCOTT EFS NATIONAL BANK: Nashville, Tennessee J. RICHARD BUCHIGNANI DOUGLAS A. BLACK PAUL D. CULLEN, SR. Memphis, Tennessee AMY IRENE WASHBURN Washington, DC FOR APPELLEE FLYING J, INC.: J. O. BASS, JR. Nashville, Tennessee JONATHAN A. DIBBLE ERIC D. BARTON Salt Lake City, Utah FOR APPELLEE PILOT CORP.: ROBERT R. CAMPBELL AMY V. HOLLARS Knoxville, Tennessee Judge: CANTRELL First Paragraph: The primary question in this breach of contract case is whether the plaintiff independent truckers were third-party beneficiaries of promises made by the defendant truck stop owners to the defendant bank and the credit card organizations that they would not add a surcharge to purchases. The trial court found that they were not third-party beneficiaries and granted summary judgment to the defendants. We believe, however, that as holders of credit cards issued by Visa and MasterCard, the truckers were intentional beneficiaries of the no-surcharge provisions in those contracts. http://www.tba.org/tba_files/TCA/owneroperator.wpd CARL SCOTT and ALMA SCOTT VS. ROGERS GROUP, INC. Court:TCA Attorneys: Mitchell G. Tollison; Lesa B. Rainwater Hawks & Tollison of Humboldt For Plaintiffs-Appellants W. Lee Corbett; David F. Lewis of Nashville For Defendant-Appellee Judge: CRAWFORD First Paragraph: This is a case involving breach of contract. Plaintiffs/appellants, Carl Scott and Alma Scott (referred to herein as "the Scotts") appeal from the order of the trial court granting summary judgment to defendant/appellee, Rogers Group, Inc. http://www.tba.org/tba_files/TCA/scottc.wpd BARRY STOKES and PAMELA STOKES VS. TORINA ARNOLD, RICHARD ARNOLD, JOHNNY LYNCH and TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES Court:TCA Attorneys: ROBERT D. TUKE 1100 Nationsbank Plaza 414 Union Street Nashville, Tennessee 37219 Attorney for Petitioners/Appellees CHRISTINE ZELLAR CHURCH 120 Franklin Street Clarksville, Tennessee 37040 Attorney for Respondent/Appellant Judge: CANTRELL First Paragraph: The Chancery Court for Dickson County terminated a mother's parental rights to three young children and allowed the foster parents to proceed with the adoption of the children. Because we find that the record does not contain clear and convincing evidence upon which to base the termination of the mother's parental rights, we reverse. http://www.tba.org/tba_files/TCA/stokesb.wpd STATE OF TENNESSEE o/b/o CAROL A. VAUGHN VS. PETER KAATRUDE Court:TCA Attorneys: For Plaintiff/Appellee: For Defendant/Appellant: Paul G. Summers Gregory D. Smith Attorney General and Reporter Clarksville, Tennessee Douglas Earl Dimond Assistant Attorney General Judge: KOCH First Paragraph: This appeal involves a father's obligation to pay support for a non-marital child. Fifteen years after the child's birth, the Tennessee Department of Human Services, acting on behalf of the child's mother, filed suit in the Montgomery County Juvenile Court seeking to establish paternity and to obtain past and future support from the father. Following a bench trial, the trial court entered an order establishing paternity and ordering the father to pay $542.50 per month in child support. The juvenile court also awarded the mother $50,000 in back child support. http://www.tba.org/tba_files/TCA/Vaughnca.wpd FERRIS E. WATSON VS. LYNN ROSE WATSON Court:TCA Attorneys: MARKLEY RUNYON GILL P.O. BOX 445 ERIN, TENNESSEE ATTORNEY FOR PLAINTIFF/APPELLANT TROY L. BROOKS 2050 FORT CAMPBELL BOULEVARD CLARKSVILLE, TENNESSEE 37042 ATTORNEY FOR DEFENDANT/APPELLEE Judge: COTTRELL First Paragraph: This case involves a dispute over custody of two children upon their parents' divorce. The trial court awarded custody to Lynn Rose Watson ("Mother") with visitation to Ferris E. Watson ("Father"). Father appeals, claiming he is comparatively the better parent. We affirm the award of custody to Mother. http://www.tba.org/tba_files/TCA/WatsonF.wpd CHRISTOPHER SCOTT WELLS VS. BETTY SUE WELLS Court:TCA Attorneys: MICHELLE M. BENJAMIN 102 FIRST AVENUE, N.W. P.O. BOX 177 WINCHESTER, TN 37398 Attorney for Plaintiff/Appellant ROBERT T. CARTER HENRY, McCORD, BEAN & MILLER, P.L.L.C. 300 NORTH JACKSON STREET P.O. BOX 538 TULLAHOMA, TN 37388 Attorney for Defendant/Appellee Judge: COTTRELL First Paragraph: Christopher Scott Wells ("Father") and Betty Sue Wells ("Mother") divorced in October 1997. By the terms of their Marital Dissolution Agreement (MDA), the parties had joint custody of the two children with Mother as primary custodian. Shortly after the MDA was accepted by the court, Father changed his mind. He sought custody of the children based on Mother's relationships with men. The trial court found no change in circumstances and left custody with Mother. Because of evidence of the children's altered behavior during their visit with Father, we find it necessary to remand the case to the trial court for a determination of the best interests of the children, including the comparative fitness of the parents at the time of the hearing on remand. http://www.tba.org/tba_files/TCA/wellsC.wpd STATE OF TENNESSEE VS. ROCK ABOU-SAKHER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: PENNY HARRINGTON PAUL G. SUMMERS 2205 State St. Attorney General & Reporter Nashville, TN 37203-1850 ELIZABETH T. RYAN Asst. Attorney General 425 Fifth Ave., N. Nashville, TN 37243 DAN M. ALSOBROOKS District Attorney General LISA DONEGAN Asst. District Attorney General Humphreys County Courthouse Room 205 Waverly, TN 37185 Judge: PEAY First Paragraph: The defendant was indicted for, and convicted by a jury of, two counts of criminal trespass. He was fined fifty dollars ($50.00) for each offense. In this direct appeal, the defendant challenges the trial court's jury instruction on the statutory defense available against a charge of criminal trespass. Upon our review of the record, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/ABOU-SAK.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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