March 16, 2000 Volume 6 -- Number 041 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 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 23 New Opinion(s) from the Tennessee Court of Appeals 00 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 AMERICAN SHOW BAR SERIES, INC. doing business as SHOW PALACE, MICHAEL L. GRUBB, and LINDA A. STROUTH VS. ROBERT WALLING doing business as BOTTOMS UP CLUB, ROBERT WALLING and LINDA A. STROUTH VS. STATE OF TENNESSEE ATTORNEY GENERAL Court:TCA Attorneys: For Appellants American Show For Appellee Sullivan Cty Bar Series, Inc., Grubb, and Strouth DANIEL P. STREET Blountville, Tennessee MARK D. SLAGLE T. MARTIN BROWDER, JR. Slagle & Browder, PLLC For Appellee State of Tennessee Johnson City, Tennessee Attorney General PAUL G. SUMMERS For Appellants Walling and Attorney General & Reporter Strouth MICHAEL E. MOORE JOHN D. PARKER, JR. Solicitor General Kingsport, Tennessee STEVEN A. HART Special Counsel Office of the Attorney General Nashville, Tennessee Judge: SUSANO First Paragraph: The plaintiffs -- American Show Bar Series, Inc., doing business as Show Palace and Michael L. Grubb (collectively "the Show Palace"), Robert Walling, individually and doing business as Bottoms Up Club (collectively "Bottoms Up Club"), and Linda A. Strouth -- brought this action challenging the constitutionality of the Adult-Oriented Establishment Registration Act of 1998 ("the Act"). http://www.tba.org/tba_files/TCA/amshowbar.wpd RONALD COLLIER, et al. VS. JACK MORGAN, et al. Court:TCA Attorneys: Attorney for Plaintiffs/Appellants: Attorney for Defendants/Appellees: Issac L. Herron, Pro Se Paul G. Summers Attorney General and Reporter Arthur Crownover, II Assistant Attorney General Judge: KOCH First Paragraph: This appeal involves an inmate seeking to purse a 42 U.S.C. S 1983 claim against two prison officials. The Circuit Court for Hickman County dismissed the inmate's claim for failure to comply with Tenn. Code Ann. S 41-21-805 (1997). On this appeal, the inmate asserts that the trial court erred by dismissing his complaint and by declining to grant his request for a temporary injunction. http://www.tba.org/tba_files/TCA/Collierr.wpd CRAFTBILT MANUFACTURING CO. VS. UNITED WINDOW COMPANY, INC. Court:TCA Attorneys: For the Appellant: For the Appellee: Robert Payne Cave Frederick L. Conrad, Jr. 104 North College Street 9050-B Executive Park DR, Ste 204 Greeneville, TN 37743 P. O. Box 30192 Knoxville, TN 37930-0192 Judge: SWINEY First Paragraph: This is an appeal by United Window Company, Inc. ("Defendant") from an award against it in the sum of $22,804.08. Defendant sold Craftbilt Manufacturing Co. ("Plaintiff") products. Defendant decided to terminate its business relationship with Plaintiff. Plaintiff and Defendant agreed for Plaintiff to take back the inventory and to give Defendant full credit for that inventory. http://www.tba.org/tba_files/TCA/Craftbil.wpd SCOTT GRAHAM HARTMAN, KAY HARTMAN, His Mother and Duly Qualified Conservator and Guardian, and CLEON HARTMAN VS. THE UNIVERSITY OF TENNESSEE and STATE OF TENNESSEE Court:TCA Attorneys: PAUL S. DAVIDSON JOEL T. GALANTER Stokes & Bartholomew 424 Church Street, Suite 2800 Nashville, Tennessee 37219-2386 ATTORNEYS FOR PLAINTIFFS/APPELLANTS BEAUCHAMP E. BROGAN RONALD C. LEADBETTER 719 Andy Holt Tower Knoxville, Tennessee 37996-0170 ATTORNEYS FOR DEFENDANTS/APPELLEES Judge: CAIN First Paragraph: For the second time, the claimants appeal a decision of the Tennessee Claims Commission denying them recovery from the University of Tennessee and the State of Tennessee of $1,026,666 in medical expenses allegedly paid by BellSouth Corporation under an ERISA plan with BellSouth alleged to be subrogee of such payments. http://www.tba.org/tba_files/TCA/hartmanscott.wpd CECIL GRAY JACKSON VS. CHRISTINE FUTRELL and TAMMY FUTRELL DUNAWAY Court:TCA Attorneys: Attorney for Plaintiff/Appellant: Attorney for Defendant/Appellee: Robert H. Moyer Markley Runyon Gill Sykes, Moyer & Smith Erin, Tennessee Clarksville, Tennessee Judge: KOCH First Paragraph: This appeal involves a dispute between siblings over real property their father unexplainedly conveyed to each of them in separate conveyances. After their father's death, the son filed suit in the Chancery Court for Stewart County against his sister and niece seeking to quiet title on the piece of property his father had conveyed to him after he had already conveyed it to his sister and niece. Following a bench trial, the trial court dismissed the son's complaint because he had failed to prove that his sister or niece had committed fraud or exerted undue influence on their father. http://www.tba.org/tba_files/TCA/Jacksoncg.wpd STEVE W. KILLIAN VS. TABOR CONSTRUCTION COMPANY, INCORPORATED Court:TCA Attorneys: Judge: FRANKS First Paragraph: Defendant Tabor Construction, Inc., in this contract action, appeals to this Court for the second time. http://www.tba.org/tba_files/TCA/killians.wpd FRANCIS IONE LETHCOE, as surviving spouse and next of kin of Vernon Lethcoe, deceased, for the benefit of herself and JUSTIN CHARLES LETHCOE, CHRISTOPHER VERNON LETHCOE, CANDICE MISTY LETHCOE, JIMMY JOE BEAR LETHCOE, the surviving children of Vernon Lethcoe, VS. RICKY RAY HOLDEN and wife, SHEILA MARTIN HOLDEN, and PAM KNOX and husband, VAN KNOX Court:TCA Attorneys: For Appellants For Appellees ROBERT E. PRYOR GARY M. PRINCE Pryor, Flynn, Priest & Harber O'Neil, Parker & Williamson Knoxville, Tennessee Knoxville, TennesseeV Judge: SUSANO First Paragraph: This is a wrongful death case. Francis Ione Lethcoe sued the owners of the property on which her late husband, Vernon Lethcoe ("the deceased"), was working when he was injured while engaged in the business of his employer, Bain and Holden Tire Company, Inc. ("the employer"). The trial court held that the owners of the property were not legally responsible for the injuries and resulting death of the deceased. http://www.tba.org/tba_files/TCA/lethcoefi.wpd LAURA ANN PASKULY LOWENKRON VS. STUART EDWIN LOWENKRON Court:TCA Attorneys: DENISE TERRY STAPLETON, Morristown, for Plaintiff-Appellee. JAMES D. CAUSEY and JEAN E. MARKOWITZ, Memphis, for Defendant-Appellant Judge: FRANKS First Paragraph: In this divorce action, the husband appeals from the award of child support, alimony and custody.V http://www.tba.org/tba_files/TCA/lowenkron.wpd FRANKIE PAULINE MAPLES VS. FRANK ALLEN MAPLES Court:TCA Attorneys: For the Appellant: For The Appellee: Mike A. Hickman Frank L. Flynn, Jr. Reed & Hickman Pryor, Flynn, Priest & Harber 250 E. Broadway P. O. Box 870 Maryville, TN 37804 Knoxville, TN 37901 Judge: SWINEY First Paragraph: This is an appeal by Frankie Pauline Maples ("Wife") of the Trial Court's judgment reducing her alimony in futuro from $1,682 monthly to $718 monthly because Frank Allen Maples' ("Husband") income decreased substantially. Because Husband's recent decrease in income was foreseeable at the time of the original divorce decree, we reverse the judgment of the Trial Court, dismiss Husband's Petition, and thereby reinstate the former award of $1,682 monthly alimony in futuro to Wife. http://www.tba.org/tba_files/TCA/MaplesF.wpd BRIAN M. McKINNEY STATE OF TENNESSEE VS. LEVI S. JARVIS Court:TCA Attorneys: FOR APPELLANT McKINNEY: FOR APPELLEE JARVIS: MATHEW R. ZENNER CYRUS L. BOOKER Nashville, Tennessee CHARLNETTE A. RICHARD Nashville, Tennessee FOR APPELLANT STATE OF TENNESSEE: PAUL G. SUMMERS Attorney General & Reporter KIMBERLY J. DEAN Deputy Attorney General Nashville, Tennessee Judge: CANTRELL First Paragraph: The question we must decide is whether a state statute violates the due process and separation of powers provisions of the state constitution when in some civil actions it prohibits evidence of the failure to wear a car safety belt. The Circuit Court of Williamson County held the statute unconstitutional. For the reasons that follow we reverse the circuit court's order. http://www.tba.org/tba_files/TCA/mckinneybm.wpd AHMAD BEN NAMA and KAHLED ABED VS. AYMAN AYOUB, d/b/a LIMITED AUTO SALES Court:TCA Attorneys: IRWIN J. KUHN Eisenstein, Moses & Mossman Suite 500, One Church Street Nashville, Tennessee 37201 ATTORNEY FOR PLAINTIFFS/APPELLEES JOHN C. HESS 105 Bonnabrook Drive, Suite 105 Hermitage, Tennessee 37076 ATTORNEY FOR DEFENDANT/APPELLANT Judge: CAIN First Paragraph: This is an appeal from the chancellor's denial of Defendant's motion to alter or amend findings of fact. The question to be answered is whether the "newly discovered evidence rule" would allow the presentation post-trial of evidence which the proponent concedes he could have produced at trial. The defendant contends that evidence which tends to show misrepresentation on the part of a nonmovant should be allowed under a motion pursuant to Tenn. R. Civ. P. 52, 59 and 60 regardless of whether it was discoverable at trial. Under the circumstances of the case at bar, we cannot agree. http://www.tba.org/tba_files/TCA/NamaAhmad.wpd NASHVILLE CLUBHOUSE INN, CLUBHOUSE INN OF KNOXVILLE and CLUBHOUSE INN AND CONFERENCE CENTER VS. RUTH E. JOHNSON, Commissioner of Revenue, State of Tennessee Court:TCA Attorneys: WILLIAM F. LONG, JR. 101 Westpark Drive, Suite 250 Brentwood, Tennessee 37027 ATTORNEY FOR PLAINTIFFS/APPELLEES JOHN KNOX WALKUP Attorney General and Reporter CHRISTINE LAPPS NATALIE S. PRICE Assistant Attorneys General Office of the Attorney General Tax Division Cordell Hull Building, Second Floor 425 Fifth Avenue North Nashville, Tennessee 37243-0489 ATTORNEYS FOR DEFENDANT/APPELLANT Judge: CAIN First Paragraph: This case is an appeal from the ruling of the Chancellor granting a sales tax refund to Nashville Clubhouse Inn, Clubhouse Inn of Knoxville, and Clubhouse Inn and Conference Center. http://www.tba.org/tba_files/TCA/NashClbhs.wpd RICKY LEE OLDHAM VS. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Attorney for Plaintiff/Appellant: Attorney for Defendant/Appellee: Ricky Lee Oldham, Pro Se Paul G. Summers Attorney General and Reporter Abigail Turner Assistant Attorney General Judge: KOCH First Paragraph: This appeal involves a dispute between an inmate and the Tennessee Department of Correction ("Department") regarding deductions from the inmate's trust account to pay the court costs stemming from his criminal conviction. After his inmate grievance proved unsuccessful, the inmate filed a petition for a declaratory order in the Chancery Court for Davidson County seeking a declaration that the Department could not deduct funds from his inmate trust account without a court order. http://www.tba.org/tba_files/TCA/Oldhamrl.wpd NOBLE EUGENE PEPPER, SR. VS. MARY CATHERINE WOOD Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendant/Appellee: Noble Eugene Pepper, Sr. Burton D. Glover Smyrna, Tennessee Goodlettsville, Tennessee Judge: LILLARD First Paragraph: This is a child custody case. Years ago, while the children's parents were incarcerated, the juvenile court granted custody to the maternal grandmother. After the maternal grandmother died, the juvenile court granted temporary custody of the two children to their maternal great aunt. The father, no longer incarcerated, appealed to the circuit court. The circuit court dismissed the appeal, finding that no final order on custody had been issued. http://www.tba.org/tba_files/TCA/pepperne.wpd WILLIAM C. RENO VS. SHANNON A. RENO Court:TCA Attorneys: For the Appellant: For the Appellee: Donald B. Reid Randy G. Rogers 10 West Madison Avenue P. O. Box 507 P. O. Box 628 Athens, TN 37371-0507 Athens, TN 37371-0628 Judge: SWINEY First Paragraph: This is an appeal by William C. Reno ("Father") of the Trial Court's award of custody of the parties' minor child to Shannon A. Reno ("Mother") pursuant to a Judgment of Divorce granted to both parties. Father raises the issue of "whether the evidence preponderates against the finding of the Trial Court granting custody of the child to [Mother]." For the reasons herein stated, we affirm the Judgment of the Trial Court. http://www.tba.org/tba_files/TCA/RenoWC.wpd RONALD STEPHEN SATTERFIELD, SR. VS. GARY LONG and RICHARD M. SMITH, Court:TCA Judge: GODDARD First Paragraph: In light of an opinion of the Supreme Court, which was filed subsequent to our opinion denying the first petition to rehear in this case (Brown v. Wal-Mart, No. M1997-00138-SC-R11-CV), the Court granted Plaintiff Ronald Stephen Satterfield, Sr., leave to file a second petition to rehear. http://www.tba.org/tba_files/TCA/satterfieldron2_reh.wpd WANDA CARY SCOTT, Administrator of the Estate of Flois Cary Snoddy VS. ASHLAND HEALTHCARE CENTER, INC., d/b/a OAKMONT CARE CENTER; MONARCH NURSING HOMES, INC., d/b/a OAKMONT CARE CENTER; RED BIRD JET CORPORATION, d/b/a PARAGON HEALTHCARE and/or PARAGON COMPANIES; STEPHEN W. CREEKMORE and MEDICAL HOLDINGS, LTD. Court:TCA Attorneys: STEVE R. DARNELL P. O. Box 1008 Clarksville, Tennessee 37041-1008 Attorney for Plaintiff/Appellant ROBERT L. ESTES PETER F. KLETT 424 Church Street, Suite 1401 Nashville, Tennessee 37219-2392 Attorneys for Defendants/Appellees Ashland Healthcare Center, Inc., Stephen W. Creekmore, Jr. and Medical Holdings, Ltd. Judge: CANTRELL First Paragraph: In this wrongful death case against a nursing home, we are asked to decide if the holder of the certificate of need and the license to operate the facility may be held liable even if the facility is leased to and operated by another entity. The Circuit Court of Cheatham County granted summary judgment to the holder of the certificate of need and the license to operate. We affirm. http://www.tba.org/tba_files/TCA/scottwc.wpd EARL SMITH, et ux. VS. EMILY B. WILLIAMS Court:TCA Attorneys: William P. Biddle, III, Athens, Tennessee for the Appellant, Emily B. Williams. J. Reed Dixon, Sweetwater, Tennessee for the Appellee, Earl Smith. Judge: SWINEY First Paragraph: Plaintiffs/Appellees Earl Smith and Alice Smith ("Plaintiffs") entered into a contract with Defendant/Appellant Emily B. Williams ("Defendant") to purchase two Tub O Suds laundromats in Monroe County, Tennessee. Plaintiffs were provided a copy of the real estate listing agreement by Defendant's agent, with figures showing gross income of $17,500.00 and net income of $9,500.00. http://www.tba.org/tba_files/TCA/SmithE.wpd STATE AUTO INSURANCE COMPANY VS. RAYMOND L. BISHOP Court:TCA Attorneys: MICHAEL P. MILLS MILLS & COOPER NASHVILLE, TENNESSEE ATTORNEY FOR PLAINTIFF/APPELLEE TOM W. MOORE, JR. MOORE & PEDEN, P.C. COLUMBIA, TENNESSEE ATTORNEY FOR DEFENDANT/APPELLANT Judge: COTTRELL First Paragraph: State Auto Insurance Company ("State Auto") commenced this declaratory judgment action against its insured, Raymond Bishop, to determine whether Mr. Bishop failed to comply with conditions precedent to his recovery under a homeowners policy. Mr. Bishop counterclaimed, seeking unpaid proceeds from the policy and bad faith penalties. http://www.tba.org/tba_files/TCA/STATAUTO.wpd VERA ELIZABETH THOMAS VS. KENNETH LAMAR THOMAS Court:TCA Attorneys: SANDRA J. BOTT, Chattanooga, for Plaintiff-Appellee. DAVID W. NORTON, Chattanooga, for Defendant-Appellant. Judge: FRANKS First Paragraph: In this divorce action, the husband appealed from the award of alimony to the wife. http://www.tba.org/tba_files/TCA/thomasv.wpd JAMES WARD VS. TENNESSEE BOARD OF PAROLES Court:TCA Attorneys: JAMES WARD Northeast Correctional Complex P. O. Box 5000 Mountain City, Tennessee 37683 Pro Se Petitioner/Appellant PAUL G. SUMMERS Attorney General and Reporter KIMBERLY J. DEAN Deputy Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243 Attorney for Respondent/Appellee Judge: CANTRELL First Paragraph: A prisoner claimed that the Board of Paroles had acted unconstitutionally, illegally and capriciously by denying him parole, and deciding not to grant him any future parole hearings until the expiration of his sentence. The trial court dismissed his petition. We affirm the trial court. http://www.tba.org/tba_files/TCA/wardj.wpd KERRY WHITAKER, VS. WHIRLPOOL CORP., JIM TEASLEY, DOUG HAGEWOOD, CLARA VAUGHN, DEBRA DERBY, DR. VAUGHN ALLEN, and LYNN ENGLAND, Tennessee Department of Labor, Division of Workers' Compensation Court:TCA Attorneys: Kerry Whitaker, Pro Se Hooper & Zinn; David T. Hooper of Brentwood For Appellee, Whirlpool, Hagewood, Teasley, Vaughn and Derby C. J. Gideon, Jr.; Joe W. Ellis, II Gideon & Wiseman of Nashville For Appellee, Allen Paul G. Summers, Attorney General and Reporter E. Blaine Sprouse, Assistant Attorney General For Appellee, England Judge: CRAWFORD First Paragraph: On August 14, 1998, plaintiff, Kerry Whitaker, acting pro se, filed his complaint against defendant, Whirlpool Corporation, Tim Teasley, Doug Hagewood, Clara Vaughn, Debra Derby, Dr. Vaughan Allen, and Lynn England of the Tennessee Department of Labor Division of Workers Compensation. Plaintiff appeals the trial court 's order dismissing his complaint. http://www.tba.org/tba_files/TCA/whitakerke.wpd THE WILSON COUNTY SCHOOL SYSTEM VS. CREAD CLIFTON and wife, TAMELA CLIFTON, as next of kin for their minor son, WILLIAM (KYLE) CLIFTON, Court:TCA Attorneys: J. Page Garrett, Tennessee Protection & Advocacy, Nashville, Tennessee Attorney for Defendants/Appellants/Cross-Appellees. Michael R. Jennings, Lebanon, Tennessee Attorney for Plaintiff/Appellee/Cross-Appellant. Judge: FARMER First Paragraph: Cread and Tamela Clifton, on behalf of their minor son, William Kyle Clifton, appeal the trial court's judgment denying their request for prejudgment interest on a reimbursement award and an attorney's fee award entered in their favor pursuant to the Individuals with Disabilities Education Act. The Wilson County School System also has appealed, contending that the trial court erred (1) in granting the Cliftons' claim for reimbursement, and (2) in awarding the Cliftons' attorney's fees based upon the court's ruling that the Cliftons were the prevailing party in this litigation. After carefully reviewing the record, we affirm the trial court's judgment in its entirety.v http://www.tba.org/tba_files/TCA/wilsoncountyschbd.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! Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! 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