March 1, 2000 Volume 6 -- Number 032 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. 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 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 11 New Opinion(s) from the Tennessee Court of Appeals 05 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 New Opinion(s) from the Tennessee Attorney General (PDF format) 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. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Lucian T. Pera Editor-in-Chief, TBALink IN RE: AMENDMENT TO RULE 17, RULES OF THE SUPREME COURT OF TENNESSEE Court:TSC - Rules Judge: Anderson First Paragraph: Rule 17, Rules of the Supreme Court, is hereby amended by deleting the current Uniform Judgment Document and by substituting in its place the attached Uniform Judgment Document. IT IS SO ORDERED. http://www.tba.org/tba_files/TSC_Rules/rule17am_ord.wpd Attached Uniform Judgment Document http://www.tba.org/tba_files/TSC_Rules/rul17jud_ord.wpd TERRI ANN ADAMS VS. WILLIAM DAVID COOPER CONCURRING OPINION Court:TCA Judge: KOCH First Paragraph: While I concur with the results of the court's opinion, I have prepared this separate opinion because of my concern regarding the practicality and efficaciousness of the court's observations regarding continuing contempt jurisdiction when neither the parents nor the children reside in Tennessee. What possible public purpose is served by empowering the parties to use Tennessee's courts as a contempt battleground when they will be required to go elsewhere to obtain a modification of the custody arrangement? http://www.tba.org/tba_files/TCA/AdamstiC_con.wpd MARIE CRUMP VS. THE TENNESSEE CIVIL SERVICE COMMISSION and THE TENNESSEE DEPARTMENT OF MENTAL HEALTH and MENTAL RETARDATION Court:TCA Attorneys: FRANK J. SCANLON Watkins, McGugin, McNeilly & Rowan 214 Second Avenue North, Suite 300 Nashville, Tennessee 37201 ATTORNEY FOR PLAINTIFF/APPELLANT PAUL G. SUMMERS Attorney General and Reporter MARY M. COLLIER 425 Fifth Avenue North Second Floor, Cordell Hull Building Nashville, Tennessee 37243 ATTORNEYS FOR DEFENDANTS/APPELLEES Judge: CAIN First Paragraph: This is an appeal from an administrative termination under the UAPA. See Tenn. Code Ann. S4-5-101 et seq. (1998). Prior to her termination on July 24, 1995, Ms. Marie Crump was employed by the Tennessee Department of Mental Health and Mental Retardation in its Cloverbottom Development Facility. Her termination stemmed indirectly from an altercation resulting from a notation on Ms. Crump's timecard. http://www.tba.org/tba_files/TCA/crumpm.wpd HAROLD DAVIS VS. TENNESSEE DEPARTMENT OF EMPLOYMENT SECURITY, TENNESSEE CIVIL SERVICE COMMISSION, and MARGARET CULPEPPER, in her official capacity as Commissioner of the Tennessee Department of Employment Security Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendants/Appellees: Larry D. Woods Paul G. Summers Nashville, Tennessee Attorney General and Reporter James C. Floyd Assistant Attorney General Judge: KOCH First Paragraph: This appeal involves the efforts of a state employee to obtain judicial review of a written reprimand for repeatedly filing grievances concerning non-grievable matters. After the Civil Service Commission declined to consider his grievance concerning the written reprimand, the employee filed suit in the Chancery Court for Davidson County seeking both judicial review of the Commission's decision under the Uniform Administrative Procedures Act and injunctive and other equitable relief against his employer under the federal civil rights laws. The trial court dismissed the civil rights claims and later dismissed the employee's petition for review because it was not timely filed. http://www.tba.org/tba_files/TCA/davish.wpd OPINION ON PETITION FOR REHEARING http://www.tba.org/tba_files/TCA/davish_reh.wpd ASTRUM R. E. CORPORATION VS. ASTRUM R.E. CORPORATION VS. MAHAN ROOFING AND SHEET METAL COMPANY, INC. VS. ENVIRONMENTAL ABATEMENT, INC. Court:TCA Attorneys: JOHN R. RUCKER, JR. 14 PUBLIC SQUARE NORTH MURFREESBORO, TENNESSEE 37130 PHILIP N. ELBERT NEAL & HARWELL, PLC 2000 FIRST UNION TOWER 150 FOURTH AVENUE NORTH NASHVILLE, TENNESSEE 37219-1713 ATTORNEYS FOR PLAINTIFF/COUNTER DEFENDANT/APPELLEE ROBERT M. HOLLAND, JR. G. BRIAN JACKSON TRABUE, STURDIVANT & DEWITT 511 UNION STREET 2500 NASHVILLE CITY CENTER NASHVILLE, TENNESSEE 37219 ATTORNEYS FOR THIRD-PARTY PLAINTIFF/APPELLEE SEAN ANTONE HUNT, ESQ. SPICER, FLYNN & RUDSTROM, PLLC 424 CHURCH STREET, SUITE 1350 NASHVILLE, TENNESSEE 37219-2305 ATTORNEY FOR THIRD PARTY DEFENDANT/ COUNTER PLAINTIFF/APPELLANT Judge: COTTRELL First Paragraph: This case raises the issue of whether a chancellor designated to serve as a "settlement judge" under local rules of court can enter a consent decree with the knowledge that one of the parties has withdrawn its consent to an oral agreement reached at a "judicial settlement conference" but not reduced to a writing, transcribed or otherwise entered on the record at the time of the oral agreement. We answer that question in the negative and reverse. http://www.tba.org/tba_files/TCA/ENVIRONM.wpd LETA MEEK HOALCRAFT VS. WALTER TROY SMITHSON Court:TCA Attorneys: R. E. Lee Davies, HARTZOG, SILVA & DAVIES, Franklin, Tennessee Attorney for Plaintiff/Appellant. Virginia Lee Story, Franklin, Tennessee Attorney for Defendant/Appellee. Judge: FARMER First Paragraph: At the time of their divorce in December of 1988, Plaintiff Leta Hoalcraft and Defendant Walter Troy Smithson agreed that Mrs. Hoalcraft would have custody of their two minor children and that Mr. Smithson would have visitation with the children. In June of 1997, Mrs. Hoalcraft filed a petition requesting permission to relocate with the children to Thailand. In his answer to this petition, Mr. Smithson requested a change of custody. After a hearing on the matter, Mrs. Hoalcraft's petition to relocate was granted and Mr. Smithson's request for a change of custody was denied. http://www.tba.org/tba_files/TCA/Hoalcraftlm.wpd JAMES HAROLD HORNE VS. RICHARD D. PHILLIPS and wife NANCY J. PHILLIP Court:TCA Attorneys: Bob McD. Green, Johnson City, Tennessee for the Appellants, Richard D. Phillips and Nancy J. Phillips. Paul J. Sherwood, Johnson City, Tennessee for Appellee, James Harold Horne. Judge: SWINEY First Paragraph: Appellee James Harold Horne ("Horne" or "Plaintiff") brought suit in the Washington County Chancery Court for specific performance of a contract for the sale of real estate against Appellants Richard D. Phillips and Nancy J. Phillips ("Phillips" or "Defendants"). The Phillips had executed a written document to convey land and a house in Washington County to Horne, and had accepted a $1,000.00 cash deposit toward the purchase price of $45,000.00. The Phillips decided not to sell to Horne, and attempted to return the deposit. Horne insisted that the Phillips carry through with the sale as set forth in the document, and subsequently filed his Complaint. http://www.tba.org/tba_files/TCA/HorneJH.wpd ELIZABETH D. LEBRUN, M.D. VS. DALE B. ELMORE, M.D., APPALACHIAN CENTER FOR WOMEN, P.C., MARYVILLE MEDICAL BUILDING PARTNERSHIP, and LOYCE HOLDEN ELMORE Court:TCA Attorneys: David A. Burkhalter, Knoxville, Tennessee for the Appellant, Elizabeth D. LeBrun, M.D. Joe Costner and David R. Duggan, Maryville, Tennessee for Appellees, Dale B. Elmore, M.D., Appalachian Center for Women, P.C., Maryville Medical Building Partnership, and Loyce Holden Elmore.. Judge: SWINEY First Paragraph: Plaintiff Elizabeth D. LeBrun, M.D., was terminated from her employment with Defendant Appalachian Center for Women, P.C., an obstetrics and gynecology practice in Maryville, Tennessee. Defendant Dale B. Elmore, M.D., instituted Plaintiff's termination "for cause" under an employment contract between Plaintiff and the professional corporation. Termination for cause served to reduce the amounts due Plaintiff under her employment contract and a separate partnership agreement in which Plaintiff and Defendant Elmore shared interest in the building that housed the medical practice. http://www.tba.org/tba_files/TCA/LeBrunED.wpd RE: The Matter of Ashley Michele Menard By: MICHAEL GEORGE MENARD and CAROL FRANCES MENARD and ANGELA VEYS MENARD VS. BRYANT LEO MEEKS Court:TCA Attorneys: FOR APPELLEES: FOR APPELLANT: JOHN J. HOLLINS, SR. MARK R. OLSON Nashville, Tennessee Clarksville, Tennessee FRANK J. RUNYON Clarksville, Tennessee Judge: First Paragraph: The trial court terminated the parental rights of a teenage father on the ground of abandonment, and granted the adoption petition of the maternal grandparents. We do not believe that the grandparents proved abandonment by clear and convincing evidence. We therefore reverse the order terminating the father's parental rights and granting the grandparent's adoption. http://www.tba.org/tba_files/TCA/menardam.wpd OLYMPIA CHILD DEVELOPMENT CENTER, INC. VS. RODNEY PARTON Court:TCA Attorneys: Kevin W. Shepherd, Maryville, Tennessee for the Appellant, Olympia Child Development Center, Inc. Gregory F. Coleman and Candis D. Lasley, Knoxville, Tennessee for Appellee, Rodney Parton. Judge: SWINEY First Paragraph: This is an appeal of the Trial Court's dismissing, prior to trial, claims asserted by Appellant Olympia Child Development Center, Inc., against Appellee Rodney Parton, cross-complainants in the Trial Court action. The claims on appeal center upon Appellant's decline in its child daycare business following an automobile collision in which Appellee was found at fault in the jury trial that followed dismissal of Appellant's claims from the multiple-party action prior to trial. http://www.tba.org/tba_files/TCA/Olympia_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/OLYMPIACDC_CON.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. http://www.tba.org/tba_files/TCA/owneroperator_opn.wpd ORDER http://www.tba.org/tba_files/TCA/owneroperator_ord.wpd MARK ANDREW PAPACHRISTOU VS. THE UNIVERSITY OF TENNESSEE Court:TCA Attorneys: JOHN E. ELDRIDGE 606 W. Main Street, Suite 350 P. O. Box 84 Knoxville, Tennessee 37901-0084 Attorney for Petitioner/Appellee BEAUCHAMP E. BROGAN General Counsel The University of Tennessee RONALD C. LEADBETTER Associate General Counsel 719 Andy Holt Tower Knoxville, Tennessee 37996-0170 Attorney for Respondent/Appellant Judge: CANTRELL First Paragraph: The Chancellor of the University of Tennessee suspended the appellee indefinitely for violating the College of Law honor code. The Chancery Court of Davidson County reversed the suspension because of insufficient material evidence. For the reasons stated below, we reverse the trial court's ruling. http://www.tba.org/tba_files/TCA/papachristouma.wpd STATE OF TENNESSEE VS. LUCIAN D. BUCHANAN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DAVID NEAL BRADY PAUL G. SUMMERS District Public Defender Attorney General & Reporter GENE HONEA TODD R. KELLEY Assistant Public Defender Assistant Attorney General 407-C Main Street 2nd Floor, Cordell Hull Building P.O. Box 68 425 Fifth Avenue North Franklin, TN 37065-0068 Nashville, TN 37243 RONALD L. DAVIS District Attorney General SHARON E. TYLER Assistant District Attorney General P.O. Box 937 Franklin, TN 37065-0937 Judge: WOODALL First Paragraph: Defendant Lucian D. Buchanan pled guilty in the Williamson County Circuit Court to Class D felony theft, Class A misdemeanor theft, Class A misdemeanor possession of burglary tools, and Class B misdemeanor criminal impersonation. The trial court subsequently sentenced Defendant as a Range III persistent offender to terms of twelve years for the Class D felony, eleven months and twenty-nine days for each Class A misdemeanor, and six months for the Class B misdemeanor. http://www.tba.org/tba_files/TCCA/buchananld.wpd STATE OF TENNESSEE VS. BRIAN KEITH EREXSON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DAVID A. DOYLE PAUL G. SUMMERS District Public Defender Attorney General & Reporter REGAN R. COTHRON DAVID H. FINDLEY Assistant Public Defender Assistant Attorney General 2nd Floor, Cordell Hull Building STEVE GLASER 425 Fifth Avenue North Assistant Public Defender Nashville, TN 37243 117 East Main Street Gallatin, TN 37066 LAWRENCE RAY WHITLEY District Attorney General SALLIE WADE BROWN Assistant District Attorney General 113 West Main Street Gallatin, TN 37066-2803 Judge: WOODALL First Paragraph: Defendant Brian Keith Erexson entered a guilty plea to two counts of assault in the Sumner County Criminal Court and the trial court imposed a sentence of eleven months and twenty-nine days of intensive probation for each conviction, with the sentences to run consecutively to each other and to a sentence that was imposed in another case. Following a subsequent hearing, the trial court revoked Defendant's probation, and Defendant challenges that revocation in this appeal. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/erexsonbk.wpd STATE OF TENNESSEE VS. CHARLES R. MARSHALL, JR. Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JEFFREY A. DEVASHER PAUL G. SUMMERS C. DAWN DEANER Attorney General & Reporter 1202 Stahlman Building Nashville, Tennessee 37201 MARK E. DAVIDSON Assistant Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243 Judge: LAFFERTY First Paragraph: The appellant, Charles R. Marshall, Jr., referred to herein as "the defendant," was convicted of attempted aggravated robbery by a Davidson County Jury. The trial court imposed a four (4) year sentence and placed the defendant on probation for four (4) years. On appeal as of right, the defendant presents the single issue that the evidence is insufficient to support his conviction. http://www.tba.org/tba_files/TCCA/MarshallC.wpd STATE OF TENNESSEE VS. MARCELLA I. MEALER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JUSTIN JOHNSON PAUL G. SUMMERS 203 Second Ave. N. Attorney General & Reporter P.O. Box 190582 Nashville, TN 37219-0582 LUCIAN D. GEISE Asst. Attorney General 425 Fifth Ave., N. Nashville, TN 37243-0493 VICTOR S. JOHNSON III District Attorney General BERNARD MCEVOY Asst. District Attorney General Washington Square, Suite 500 222 Second Ave., N. Nashville, TN 37201 Judge: PEAY First Paragraph: Defendant was indicted for driving on a revoked license (DORL) and driving under the influence (DUI), third offense. Defendant pled guilty to DORL, and a jury convicted her of DUI, second offense. The trial court then sentenced defendant on the DORL offense to six months in the county jail at seventy percent followed by six months probation, concurrent with the DUI sentence. For the DUI conviction, the trial court sentenced defendant to eleven months, twenty-nine days in the county jail, suspended after service of one hundred fifty days, and eleven months, twenty-nine days probation. http://www.tba.org/tba_files/TCCA/MEALERMI.wpd STATE OF TENNESSEE VS. MICHAEL DEWAYNE SIMMONS Court:TCCA Attorneys: For the Appellant Cynthia F. Burnes P.O. Box 190427 Nashville, TN 37219 (At Guilty Plea and On Appeal) For the Appellee Paul G. Summers Attorney General and Reporter Todd R. Kelley Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 Victor S. (Torry) Johnson III District Attorney General Lisa Naylor Assistant District Attorney General 222 Second Avenue North Washington Square, Suite 500 Nashville, TN 37201-1649 Judge: OGLE First Paragraph: Appellant, Michael Dewayne Simmons, pled guilty to theft of property over $1,000, a Class D felony, and aggravated robbery, a Class B felony. This appeal is based upon a certified question of law: whether the delay between the return of the indictment and appellant's arrest denied him his right to a speedy trial. Upon our review of the record, we conclude there is no speedy trial violation. Therefore, the judgment of the trial court is AFFIRMED. http://www.tba.org/tba_files/TCCA/Simmonsm.wpd PLEASE FORWARD THIS E-MAIL! 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. TBA members may join TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! 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