April 4, 2000 Volume 6 -- Number 050 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):   04 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 36 New Opinion(s) from the Tennessee Court of Appeals 08 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 FEDERATED INSURANCE COMPANY VS. FRANCIS I. LETHCOE, et al. Court:TSC Attorneys: Peter Alliman, Madisonville, Tennessee, for the appellants, Francis I. Lethcoe, et al. David F. Harrod, Athens, Tennessee, for the appellee, Federated Insurance Company. Judge: BARKER First Paragraph: This is an appeal from the Chancery Court for McMinn County which, pursuant to Tennessee Rule of Civil Procedure 60.02(5), modified a judgment that was previously entered in accord with a settlement agreement between the parties. The appellants appealed and contended that the trial court improperly modified the judgment and reduced the benefits they were to receive according to the agreement. The Special Workers' Compensation Appeals Panel affirmed the judgment of the trial court, and the appellants filed a motion for full review by this Court to determine whether a party can seek modification of a workers' compensation judgment for a fixed sum to be paid periodically almost two years after entry of judgment. We hold that where a party agrees to settle a workers' compensation claim, and the trial court approves the settlement, the settling party is generally not entitled to relief pursuant to Rule 60.02(5). Accordingly, we reverse the judgments of the trial court and the Special Workers' Compensation Appeals panel and remand this case to the trial court for further proceedings. http://www.tba.org/tba_files/TSC/FederatedIns.wpd STATE OF TENNESSEE VS. ERIC FLEMMING Court:TSC Attorneys: Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Elizabeth B. Marney, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee Jeffrey A. DeVasher, Assistant Public Defender, and Wendy S. Tucker, Assistant Public Defender, Nashville, Tennessee, for the appellee, Eric Flemming Judge: BARKER First Paragraph: We granted the appeal in this case to decide (1) whether fists and feet are deadly weapons under Tennessee Code Annotated section 39-11-106(a)(5)(B); and (2) whether the trial court's failure to instruct the jury on criminal responsibility for facilitation of especially aggravated robbery and aggravated robbery was reversible error. We conclude that fists and feet are not deadly weapons under Tennessee Code Annotated section 39-11-106(a)(5)(B). In addition, we conclude that the trial court committed reversible error in failing to instruct the jury on facilitation of aggravated robbery and especially aggravated robbery. Accordingly, we affirm the judgment of the Court of Criminal Appeals and remand this case to the trial court for a new trial. http://www.tba.org/tba_files/TSC/FlemmingE.wpd NAPOLEON MOMON VS. STATE OF TENNESSEE OPINION ON PETITION TO REHEAR Court:TSC Attorneys: For the Appellant: For the Appellee: Stephen M. Goldstein Paul G. Summers Chattanooga, Tennessee Attorney General & Reporter For Amicus Curiae Michael E. Moore Tennessee Association of Criminal Solicitor General Defense Lawyers Paula R. Voss Daryl J. Brand Knoxville, Tennessee Associate Solicitor General Nashville, Tennessee David M. Siegel Associate Professor William H. Cox, III New England School of Law District Attorney General Boston, Massachusetts 11th Judicial District Rodney C. Strong Assistant District Attorney Chattanooga, Tennessee First Paragraph: The appellant, Napoleon Momon, and Amicus Curiae, Tennessee Association of Criminal Defense Lawyers, ("TACDL"), have filed petitions to rehear the opinion of this Court issued on November 15, 1999. The appellant asserts in his petition that the Court erred in finding that the harmless error doctrine may be applied to a violation of the fundamental right to testify. TACDL challenges the voir dire procedure adopted in the opinion and argues that a defendant should also be permitted to execute a written waiver of the right to testify in place of the on-the-record voir dire waiver. http://www.tba.org/tba_files/TSC/momomRH.wpd STATE OF TENNESSEE VS. BARRY WINFRED RITCHIE Court:TSC Attorneys: Michael E. Moore, Solicitor General; Gordon W. Smith, Associate Solicitor General; and Elizabeth B. Marney, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee. Larry G. Roddy, Sale Creek, Tennessee, for appellee, Barry Winfred Ritchie. Judge: BARKER First Paragraph: We granted this appeal to determine whether a petitioner seeking a writ of habeas corpus is entitled to an evidentiary hearing to establish that the convicting court lacked territorial jurisdiction, when the record of the proceedings does not show that the court lacked such jurisdiction. We hold that because the scope of the writ of habeas corpus in Tennessee does not permit inquiry into facts outside of the original trial record, the appellee is not entitled to a hearing to introduce extrinsic evidence collaterally attacking the jurisdiction of the convicting court. Further, because we cannot find any clear and indisputable proof in the record that the Hamilton County Criminal Court lacked territorial jurisdiction to convict and sentence the appellee, we reverse the judgment of the Court of Criminal Appeals and dismiss the appellee's petition for the writ of habeas corpus. http://www.tba.org/tba_files/TSC/RitchieBW.wpd ROBBIE ALLEN VS. PIGGLY WIGGLY MEMPHIS, INC. Court:TCA Attorneys: R. Linley Richter, Jr. Memphis, TN Attorney for Appellant Belynda R. Stroud Memphis, TN Attorney for Appellee Judge: HIGHERS First Paragraph: Appellant ("Allen") appeals the trial court's grant of Appellee's ("Store's") motion for summary judgment in this personal injury action. For the following reasons, the trial court's grant of Store's motion for summary judgment is affirmed. http://www.tba.org/tba_files/TCA/allenr.wpd ESTATE OF JULIE AMOS and RONALD AMOS VS. VANDERBILT UNIVERSITY, INC. d/b/a VANDERBILT UNIVERSITY MEDICAL CENTER Court:TCA Attorneys: ABBY R. RUBENFELD Rubenfeld & Associates 2505 Hillsboro Road, Suite 201 Nashville, Tennessee 37212 A. BRUCE JONES PATRICIA DEAN Holland & Hart 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 ATTORNEYS FOR PLAINTIFFS/APPELLEES E. CLIFTON KNOWLES JOHN S. BRYANT STEVEN E. ANDERSON Bass, Berry & Sims 2700 First American Center Nashville, Tennessee 37238-2700 ATTORNEYS FOR DEFENDANT/APPELLANT Judge: CAIN First Paragraph: This case represents another chapter in a protracted suit filed by a father and mother against a healthcare provider for the alleged wrongful birth of their daughter. The child, Alison Amos, was born in September of 1989, having been infected with the Human Immunodeficiency Virus (HIV) in utero through her mother Julie. In 1989 an HIV positive diagnosis brought with it a myriad of possible infections, such as pneumocystis carinii. As mild as these infections might be to a healthy immune system, in an immuno-deficient environment, especially that of an infant, just one such infection could spell disaster. Two months after her birth, Alison developed pneumocystis pneumonia, a common AIDS related infection, and died four days later. http://www.tba.org/tba_files/TCA/amosjulie.wpd ELLEN BASILY VS. RAIN, INC., and ERI-AW, INC. Court:TCA Attorneys: For Plaintiff/Appellant: For Rain, Inc.: Joseph L. Lackey, Jr. Leonard F. Pogue, III Lackey, Rodgers, Price & Snedeker Lisa Ramsay Cole Nashville, Tennessee Lewis, King, Krieg, Waldrop & Catron Nashville, Tennessee For ERI-AW, Inc.: Thomas C. Corts Ortale, Kelley, Herbert & Crawford Judge: KOCH First Paragraph: This appeal involves a tenant who was injured when she tripped over a raised sprinkler that was part of the automatic irrigation system of the apartment complex where she lived. The tenant filed suit in the Circuit Court for Davidson County against the owners of the apartments and the company that maintained the irrigation system, alleging that they left the sprinkler head in its raised position after performing routine maintenance. http://www.tba.org/tba_files/TCA/Basilye.wpd TIMOTHY V. BOWLING VS. LORI GOFF, BECKY WEST, and THE JOHNSON CITY POLICE DEPARTMENT Court:TCA Attorneys: For Appellant For Appellees TIMOTHY V. BOWLING, Pro Se K. ERICKSON HERRIN Mountain City, Tennessee Herrin, Booze & Rambo Johnson City, Tennessee Judge: SUSANO First Paragraph: The plaintiff, Timothy V. Bowling, filed a complaint in this action on January 16, 1998. His pleading, filed pro se, is entitled "Complaint for Civil Rights Violation," and seeks damages against two police officers of the Johnson City Police Department. The Department is also sued. The complaint is based upon the plaintiff's arrest for domestic violence, an arrest made by the individual defendants on March 16, 1993. http://www.tba.org/tba_files/TCA/BOWLINGTV.wpd ROBERT BOWMAN, ET AL. VS. GATLINBURG CONDO MANAGEMENT, INC., ET AL. Court:TCA Attorneys: C. DAN SCOTT and BARRY W. EUBANKS, Sevierville, for Appellants ERIC J. MORRISON, Knoxville, for Appellees Judge: GODDARD First Paragraph: This suit involves a determination of whether specific areas within a condominium complex are units for occupancy or are "common areas" available for use by all condominium owners. Robert Bowman, et al., the Plaintiffs/Appellees, initiated an action in the Sevier County Chancery Court against The Gatlinburg Condo Management, Inc., et al., the Defendants/Appellants. The Sevier County Chancery Court granted summary judgment in favor of the Appellees. http://www.tba.org/tba_files/TCA/bowmanr.wpd ANGELA P. BURRESS, et al. VS. RAYMOND M. SANDERS, et al. Court:TCA Attorneys: Alan M. Sowell, Nashville, Tennessee, for the appellant, Dairyland Insurance Company. Edwin Z. Kelly, Jr., Jasper, Tennessee, for the appellee, State Farm Mutual Automobile Insurance Company. Judge: KOCH First Paragraph: This appeal involves a dispute between two insurance companies over the limits of the underinsured motorist coverage in a non-resident insurance company's policy. Even though it had certified its policy to the Tennessee Department of Safety as required by Tennessee's financial responsibility statutes, a non-resident insurance company asserted that the limits of its underinsured motorist coverage should not be increased pursuant to Tenn. Code Ann. S 55-12-121(2) (1998) because the language in its policy regarding compliance with state financial responsibility laws did not apply to the underlying automobile accident in this case. http://www.tba.org/tba_files/TCA/Burressap.wpd WENDY JEAN BYRNE VS. STEVEN THOMAS BYRNE Court:TCA Attorneys: James F. Butler Spragins, Barnett, Cobb & Butler, PLC; of Jackson for Appellee Mitchell G. Tollison Hawks & Tollison of Humboldt, for Appellant Judge: CRAWFORD First Paragraph: This is a divorce case, and the issues on appeal concern child custody, the allocation of marital assets, and attorney fees. Defendant-Appellant, Steven Thomas Byrne (Husband), appeals the judgment of the trial court granting Plaintiff-Appellee, Wendy Jean Byrne (Wife), custody of the parties' minor children, attorney's fees and the division of marital property. http://www.tba.org/tba_files/TCA/BYRNEWEN.wpd JOHN CONSTANTINE, III, et al VS. MILLER INDUSTRIES, INC., et al Court:TCA Attorneys: Ward Crutchfield and J.William Pope, Chattanooga, Tennessee, William S. Lerach, Jan M. Adler, William S. Dato, and Randall J. Baron, San Diego, California, George Barrett and Douglas Johnston, Nashville, Tennessee, Gordon Ball, Knoxville, Tennessee, and H.Sullivan Bunch, Signal Mountain, Tennessee for the Appellants, John Constantine, III, Harvey Frank, and Thomas J. Johnson. John C. Harrison, Chattanooga, Tennessee, Oscar N. Persons, Rebecca M. Lamberth, and John H. Goselin, II, Atlanta, Georgia for the Appellees, Miller Industries, Inc., William G. Miller, and Adam L. Dunayer. Judge: SWINEY First Paragraph: This is an appeal of the dismissal of a securities fraud suit seeking class action certification against Defendants Miller Industries, Inc. ("Miller Industries"), William G. Miller ("Miller"), and Adam L. Dunayer ("Dunayer"). Plaintiffs, individuals who purchased stock in Miller Industries, sought relief for alleged misrepresentations made by Defendants in the course of a public stock offering. http://www.tba.org/tba_files/TCA/ConstantineJ.wpd IN RE: ADOPTION OF BRIAN DUSTIN COPELAND and SAVANNAH COPELAND MARIE GRAHAM and JOHN GRAHAM VS. TIMOTHY COPELAND Court:TCA Attorneys: For Appellant For Appellees BARRY L. ABBOTT JOHN ALLEN BROOKS Cavett & Abbott, PLLC Chattanooga, Tennessee Chattanooga, Tennessee Judge: SUSANO First Paragraph: The trial court terminated the parental rights of Timothy Copeland ("Father") to his children, Brian Dustin Copeland (DOB: December 1, 1987) and Savannah Copeland (DOB: October 10, 1990). http://www.tba.org/tba_files/TCA/COPELANDbd.wpd IN RE: ESTATE OF MARGUERITE MONGOLD CRANOR Court:TCA Attorneys: James R. Tomkins and Robert H. Jennings, Jr., Nashville, Tennessee, for the appellants, Henrietta Darr Johnson, Charles Rimlinger, Carol Dodson, Candy Rucker, and Gayle Squires. Howard E. Frasier, Jr., Bowling Green, Kentucky, George H. Cate, Jr. and Herman D. Bradley, Nashville, Tennessee, and Bryce C. Ruth, Jr., White House, Tennessee, for the appellees, Potter Children's Home, Mary Dix, Harold H. Cole, George F. Cranor, Sr., George F. Cranor, Jr., Jarman Cranor, II, and White House Church of Christ. Judge: KOCH First Paragraph: This appeal involves a dispute over a sizeable estate. After learning that they had been excluded from their relative's will, thirteen of the testatrix's heirs challenged the will in the Chancery Court for Sumner County on the grounds of improper execution, lack of testamentary capacity, and undue influence. The proponents of the will asserted that the contestants lacked standing because their challenge, even if successful, would only revive an earlier will from which they had likewise been excluded. http://www.tba.org/tba_files/TCA/Cranormm.wpd CLAYTON TILTON CROWELL VS. KATHY BIGALOW BANKA BROWN Court:TCA Attorneys: For The Appellant: For The Appellee: Mark Runyon Gill Dan R. Bradley P. O. Box 445 120 West Court Square Erin, Tennessee 37061 Waverly, Tennessee 37185 Judge: SWINEY First Paragraph: Mother appeals the Trial Court's change of custody of the parties' nine-year-old daughter from Mother to Father. Mother argues that the only change of circumstance shown at trial was the fact that Father "had a home, had remarried and was ready to be a father now." For the reasons herein stated, we reverse the Judgment of the Trial Court and remand this case to the Trial Court for further proceedings consistent with this Opinion. http://www.tba.org/tba_files/TCA/CrowellC.wpd PATRICIA DAVIS, and JENNIFER ARIC, for themselves and on behalf of all persons similarly situated AND GINA EUBANKS VS. MIKE O'HARA, Acting Director, Child Support Services, Tennessee Department of Human Services Court:TCA Attorneys: Harris A. Gilbert, WYATT, TARRANT & COMBS, Nashville, Tennessee Brian Paddock, Cookeville, Tennessee Attorneys for Plaintiffs/Appellants Paul G. Summers, Attorney General & Reporter Stuart F. Wilson-Patton, Assistant Attorney General Attorneys for Defendant/Appellee Judge: FARMER First Paragraph: Plaintiffs Patricia Davis and Jennifer Aric appeal the trial court's judgment dismissing their civil rights claims against Defendant/Appellee Mike O'Hara, Acting Director, Child Support Services, Tennessee Department of Human Services. Relying upon the United States Supreme Court's opinion in Blessing v. Freestone, 520 U.S. 329 (1997), the trial court dismissed the Plaintiffs' 1983 claims based upon the court's ruling that the Plaintiffs had failed to assert any enforceable private right of action under the provisions of Title IV-D of the Social Security Act. http://www.tba.org/tba_files/TCA/davisp.wpd MARY WIER COMPTON DEAN VS. JOHN STOTLER COMPTON and FRANK WIER and wife, LESLIE WIER Court:TCA Attorneys: For the Petitioner/Appellant: For the Respondent/Appellee, John Stotler Compton: John B. Link, III Clark Lee Shaw Nashville, Tennessee Nashville, Tennessee For the Respondents/Intervenors/Appellees, Frank Wier and wife, Leslie Wier: Anne Russell Mary J. Chukinas LaGrone Nashville, Tennessee Judge: LILLARD First Paragraph: This is a post-divorce child custody case. The trial court found that neither parent was able to care for the minor children. It awarded joint custody of the children to the maternal grandparents and the father, with physical custody to the maternal grandparents. http://www.tba.org/tba_files/TCA/deanmwc.wpd ESTATE OF JACKSON BROWN DIVINNY VS. WHEELER BONDING COMPANY, INC. Court:TCA Attorneys: Joel H. Moseley Moseley & Moseley Attorneys at Law, P.C. Suite 300, One Church Street 101 Church Street Nashville, TN 37201 Attorney for Appellant Peggy D. Mathes 214 Second Avenue North, Suite 105 Nashville, TN 37201 Judge: GODDARD First Paragraph: Wheeler Bonding Company, Inc., the Appellant, appeals the Davidson County Probate Court's judgment barring its claim against the Estate of Jackson Brown Divinny, the Appellee, as untimely filed. http://www.tba.org/tba_files/TCA/divinnyjac.wpd PEGGY NORINE (RANDOLPH) GAVIN VS. NEIL FRANCES GAVIN Court:TCA Attorneys: JOHN R. PHILLIPS, JR. Phillips & Ingrum 117 East Main Street Gallatin, Tennessee 37066 ATTORNEY FOR PETITIONER/APPELLANT JESSICA DAWN DUGGER GREGORY S. GILL Rochelle, McCulloch & Aulds 109 Castle Heights Avenue North Lebanon, Tennessee 37087 ATTORNEYS FOR RESPONDENT/APPELLEE Judge: CAIN First Paragraph: This appeal involves the dissolution of a ten-year marriage. The Wife is the appellant, and on appeal, she challenges the trial court's asessment of alimony, the court's failure to award her attorney fees, and the court's distribution of marital property. We affirm the decision of the trial court with regard to all issues. http://www.tba.org/tba_files/TCA/GavinP.wpd SONNY N. GILLIAM, deceased by next friend, wife and personal representative, RUTH M. GILLIAM and RUTH GILLIAM, individually VS. LORIANN CALCOTT and, GARRY CALCOTT and JERRY W. GILLIAM, SHEILA ANN CAWOOD, ROGER DALE GILLIAM, SALLY ANN HARRELL, and GLEN ALLEN GILLIAM Court:TCA Attorneys: John S.Bingham, Kingsport, Tennessee, for Intervenors/Appellants. William K. Rogers, Kingsport, Tennessee, for Plaintiff/Appellee. Judge: GODDARD First Paragraph: Sonny N. Gilliam was killed in a traffic accident. He was survived by his widow, Ruth M. Gilliam - with whom he had no children - and by five adult children of his first marriage. This action for damages for the wrongful death of Sonny Gilliam was filed by "Sonny N. Gilliam, deceased, by next friend, wife and personal representative, Ruth M. Gilliam. http://www.tba.org/tba_files/TCA/gilliamson.wpd RHONDA D. HACKNEY VS. DRD MANAGEMENT, INC., d/b/a DRD KNOXVILLE MEDICAL CLINIC, and CHARLES M. ALLEN, M.D.,in official capacity and individually, and MARY LITTLE, in official capacity and individually, and JANET HASLER, in official capacity and individually Court:TCA Attorneys: LINDA G. WELCH AND GARY T. DUPLER OF KNOXVILLE FOR APPELLANT JOHN B. RAYSON AND ROBERT BOWMAN OF KNOXVILLE FOR APPELLEES Judge: GODDARD First Paragraph: This is an appeal from the Circuit Court's grant of summary judgment in favor of Appellees. Rhonda Hackney, Plaintiff-Appellant, raises the following issues: I. Whether a narrow public policy exception to the employment at-will rule exists to ensure accurate chain of custody drug testing of employees in Tennessee? II. Whether the trial court improperly granted summary judgment in ruling the Defendant met its burden to "show that there is no genuine issue as to any material fact and that [it is] entitled to Judgment as a matter of law?" http://www.tba.org/tba_files/TCA/hackneyrho.wpd WILLIAM A. HARVEY VS. LENOIR CITY UTILITIES BOARD Court:TCA Attorneys: Billy J. Stokes, Knoxville, Tennessee, Attorney for Defendant/Appellant. Larry C. Vaughn, Knoxville, Tennessee, Attorney for Plaintiff/Appellee Judge: INMAN First Paragraph: The pedestrian plaintiff was struck by a service truck owned by the defendant and operated by its employee in the course of his duties. The trial judge allocated 45% of fault to the plaintiff. The defendant appeals, insisting that the preponderance of the evidence requires a finding that the "plaintiff was more than 51% at fault" which, in turn, requires the dismissal of the complaint. The issue for resolution is whether the trial court erred in the allocation of fault. http://www.tba.org/tba_files/TCA/harvey.wpd FRANCES JEAN HERNANDEZ VS. PHILLIP ANDREUS HERNANDEZ Court:TCA Attorneys: Joy Marie Sims and Kathy A. Leslie, Nashville, Tennessee, for Appellant. Robert Wheeler Rutherford, Nashville, Tennessee, for Appellee. Judge: INMAN First Paragraph: The appellant owned an undivided one-third interest in a residence prior to his marriage to the appellee. They occupied the residence for about two years, during which time the evidence reveals that the appellee engaged herself in constant repairs, thereby increasing the liveability and value of the residence. She was awarded 75% of the increase in the value of this residence during the marriage, of which the appellant complains. http://www.tba.org/tba_files/TCA/hernandez.wpd REGINA L. HILL VS. RALPH OSBORNE AND ROBERT OSBORNE Court:TCA Attorneys: For Appellants For Appellee THOMAS A. PETERS JAMES L. LONON Kingsport, Tennessee DOUGLAS J. CARTER Johnson City, Tennessee Judge: SUSANO First Paragraph: This is a dispute regarding a lease. Regina L. Hill ("the landlord") brought this action against Ralph Osborne and Robert Osborne ("the tenants"), seeking possession of the leased property and a declaration that she is the owner of the property without any encumbrances. The tenants asserted estoppel and laches as defenses. Following a bench trial, the court below held that the lease is void because the tenants failed to pay the rent on an annual basis and failed to give notice of assignment, all as required by the lease. http://www.tba.org/tba_files/TCA/Hillrl.wpd LOUISE FRASER HOLDER VS. FIRST TENNESSEE BANK N.A. MEMPHIS, as Trustee of the Richard Dudley Holder Revocable Trust, RICHARD FRASER HOLDER, EUGENE MICHAEL HOLDER, TRUDY HOLDER STAMPS, and SUZANNE HOLDER GARZA Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendants/Appellees: (No appellate brief filed) Steven H. McCleskey First Tennessee Bank N.A. Memphis, Pro Se Charles Wesley Fowler Richard Fraser Holder, Pro Se Memphis, Tennessee Eugene Michael Holder, Pro Se Trudy Holder Stamps, Pro Se Suzanne Holder Garza, Pro Se Judge: LILLARD First Paragraph: This is an action in probate court for declaratory judgment regarding a trust. The probate court construed the trust instrument to require the trustee to retain the stocks placed in the trust. We reverse, holding that the trust instrument permits the sale of stock for purposes of diversification and reinvestment under these circumstances, and that it also permits the trustee to reinvest the proceeds rather than distributing the proceeds to the beneficiary. http://www.tba.org/tba_files/TCA/HOLDER.wpd DEBORAH ANN HOLLAND VS. JASON KEITH HOLLAND Court:TCA Attorneys: For the Appellant: For the Appellee: Rebecca D. Slone George R. Garrison P. O. Box 1088 WEBB & GARRISON Dandridge, TN 37725 1415 Middle Creek Road Sevierville, TN 37862 Judge: SWINEY First Paragraph: This is an appeal by Mother and Father of the Trial Court's award of custody of their two-year-old son to the child's paternal grandmother. The paternal grandmother was not a party to the divorce action in which the award of custody was made, and she had not petitioned for custody of the child. For the reasons herein stated, we vacate the Judgment of the Trial Court and remand the case for further proceedings consistent with this Opinion. http://www.tba.org/tba_files/TCA/HollandD.wpd INTERNATIONAL MARKETING GROUP, INC. VS. LEE SPEEGLE, JAMES AKIN, CLIFF WAITS, MUSIC PLUS, MIKE ADKINS, and VERN ADKINS Court:TCA Attorneys: Bob Lynch, Jr and Todd E. Panther, Nashville, Tennessee, Attorneys for Defendants/Appellants. Timothy Lee Warnock, Nashville, Tennessee, Attorney for Plaintiff/Appellee. Judge: INMAN First Paragraph: This is an action for injunctive relief and damages, arising out of agreements not to compete. Judgment was entered against the defendants for $13,500,000.00, two of whom, Mike Adkins and Music Plus, appeal. We affirm. http://www.tba.org/tba_files/TCA/IMG.wpd WILLIAM L. JENKINS VS. RULE CONSTRUCTION, INCORPORATED Court:TCA Attorneys: LINDA J. HAMILTON MOWLES and R. LOY WALDROP, JR., OF KNOXVILLE FOR APPELLANT MONTY L. WALTON OF KNOXVILLE FOR APPELLEE Judge: GODDARD First Paragraph: This is a suit by Plaintiff William L. Jenkins seeking damages against Defendant Rule Construction, Incorporated, as a result of Rule Construction building a house for Mr. Jenkins. The complaint raises three theories--breach of contract, negligence, and misrepresentation. Rule Construction filed an answer and counter-claim seeking $5000 it claims was still owed in connection with its fee for building the residence. http://www.tba.org/tba_files/TCA/jenkinswil.wpd DONNIE SHAWN JULIAN VS. LISA CAROL JULIAN Court:TCA Attorneys: Robert Todd Jackson, Nashville, Tennessee, for the appellant, Lisa Carol Julian. William A. Cameron and Craig P. Fickling, Cookeville, Tennessee, for the appellee, Donnie Shawn Julian. Judge: KOCH First Paragraph: This appeal involves a custody dispute over twin daughters born after their parents separated following a brief marriage. The father filed for divorce in the Putnam County General Sessions Court shortly after learning that the mother was pregnant, and the mother counterclaimed for divorce and for sole custody of the unborn children. Following a bench trial, the general sessions court granted the father a divorce based on the mother's inappropriate marital conduct, awarded the father sole custody of the children, and directed the mother to pay child support. On this appeal, the mother asserts that the general sessions court's decision interferes with her constitutional right to make primary care-taking decisions for her children, that she is comparatively more fit than the father to be the custodial parent, and that the general sessions court should have awarded joint custody. We have determined that the custody arrangement does not impermissibly interfere with the mother's parental rights and that the evidence fully supports the general sessions court's custody decision. Accordingly, we affirm the judgment awarding sole custody to the children's father. http://www.tba.org/tba_files/TCA/Juliands.wpd SHARON C. LILLY VS. WILLIAM RAY LILLY Court:TCA Judge: INMAN First Paragraph: We have considered the record, to the extent it reflects some evidence in this case, the respective briefs and arguments, and conclude that the justice of this matter will be more providently served by vacating all trial court orders entered subsequent to the initial judgment and prior to the Notice of Appeal. http://www.tba.org/tba_files/TCA/lillys_ord.wpd IN RE: ESTATE OF HOMER HASKELL MILLS, Deceased. RONALD DEAN MILLS VS. PEGGY SUE POSEY and GLENDA MILLS SPEARS, CHILDREN OF CHARLES HOMER MILLS (DECEASED), AND THE CHILDREN OF ROBERT MILLS (DECEASED) and BRENDA GAIL FOSTER, formerly known as BRENDA GAIL WENTZ, and A. EILEEN LACKEY Court:TCA Attorneys: For Appellant For Appellees MAX E. HUFF JOHNNY V. DUNAWAY Oneida, Tennessee LaFollette, Tennessee Judge: SUSANO First Paragraph: This is a will contest case. Ronald Dean Mills ("the Contestant") filed this action contesting the validity of the last will and testament of his father, Homer Haskell Mills ("the Decedent"), on the grounds of incompetency and undue influence. A jury declared the will invalid. http://www.tba.org/tba_files/TCA/millshh.wpd HARRISON M. X. PEARISON, JR. VS. PAULETTE MASON FOSSIS PEARISON Court:TCA Attorneys: HARRISON M. X. PEARISON, JR., Appellant, pro se NO BRIEF FILED BY THE APPELLEE Judge: GODDARD First Paragraph: Harrison M. X. Pearison, Jr., has filed a post-divorce complaint seeking to have the decree granting a divorce to the parties changed to an annulment on the ground that Ms. Pearison had never been divorced from a prior husband, Earl Fossis. http://www.tba.org/tba_files/TCA/pearisonhar.wpd IN RE: ESTATE OF LILLIE MAE PORTER. APPLICATION OF ATTORNEYS MARY KATHERINE LONGWORTH and PEGGY J.S. MONGER, FOR FEES AND EXPENSES Court:TCA Attorneys: For Appellants For Appellees Ted L. Porter and Shirley Porter Wheeler MARY KATHERINE LONGWORTH JESS D. CAMPBELL PEGGY J.S. MONGER Campbell & Dawson Loudon, Tennessee Knoxville, Tennessee For Appellee Estate of John Kerley RUFUS W. BEAMER, JR. Knoxville, Tennessee Judge: SUSANO First Paragraph: This case involves an application in probate for the fees and expenses of attorneys Mary Katherine Longworth and Peggy J.S. Monger ("the Attorneys") arising out of their representation of Thomas S. Harvey, the former executor of the Estate of Lillie Mae Porter ("the Estate"). Being dissatisfied with the probate court's award, the Attorneys appealed. For the reasons stated herein, we vacate the judgment of the lower court and remand for further proceedings. http://www.tba.org/tba_files/TCA/PORTERlm.wpd R. E. SHARP, JR. VS. CAMPBELL COUNTY BOARD OF EDUCATION and CAMPBELL COUNTY, TENNESSEE Court:TCA Attorneys: J. STEPHEN HURST OF LAFOLLETTE FOR APPELLANT MICHAEL G. HATMAKER OF JACKSBORO FOR APPELLEE Judge: GODDARD First Paragraph: The Campbell County Board of Education appeals from a decision of the Chancellor, who found that the plaintiff, R. E. Sharp, Jr., was tenured in his position of assistant principal and therefore the Campbell County Board of Education erroneously reduced his salary when he was placed in a teaching position. http://www.tba.org/tba_files/TCA/sharpre.wpd PEGGY SHEPHERD and husband, REED SHEPHERD VS. WAL-MART STORES, INC. and JAMES TRAVIS and PAUL TRAVIS, Individually and d/b/a DRIVE-WAY MEDIC; and THOMAS WELCH Court:TCA Attorneys: For the Plaintiffs/Appellees: For the Defendants/Appellants: Charles L. Hicks Charles H. Barnett, III Camden, Tennessee Catherine B. Clayton Jackson, Tennessee Judge: LILLARD First Paragraph: This is a slip and fall case. The plaintiff fell in a store parking lot that had been recently paved. The plaintiff alleged that the parking lot was unduly slick because sand was not added to the sealant for the parking lot to aid traction. The plaintiff sued the store and the contractor that paved the lot. The jury found both defendants negligent, and allocated 80% of the fault to the store, and 20% to the contractor. The store appeals. We affirm, finding material evidence to support the jury's verdict. http://www.tba.org/tba_files/TCA/SHEPHE~1.wpd STATE OF TENNESSEE, ex rel. JERRY N. ESTES VS. JOHNNY DEWAYNE HICKS Court:TCA Attorneys: PAUL G. SUMMERS, Attorney General and Reporter, MICHAEL E. MOORE, Solicitor General, and MICHAEL A. MEYER, Assistant Attorney General, Nashville, for Plaintiff-Appellant. MICHAEL M. RAULSTON, Chattanooga, for Defendant-Appellee. Judge: FRANKS First Paragraph: In this action, the State sought to remove defendant from the office of constable in Bradley County, on the grounds that he did not meet the statutory qualifications to hold the office of constable. http://www.tba.org/tba_files/TCA/stoftnvhicks.wpd MARY E. NELSON STRANGE VS. HIRAM G. HILL Court:TCA Attorneys: PAMELA R. O'DWYER, Chattanooga, for Plaintiff-Appellant. HIRAM G. HILL, pro se Judge: FRANKS First Paragraph: This appeal arises from the former wife's Complaint to increase her alimony payment, and the former husband's cross-action and Counter-complaint to terminate alimony payments. After delays and hearings, the Trial Judge granted the husband's Counter-complaint and terminated the alimony award and the wife has appealed.This appeal arises from the former wife's Complaint to increase her alimony payment, and the former husband's cross-action and Counter-complaint to terminate alimony payments. After delays and hearings, the Trial Judge granted the husband's Counter-complaint and terminated the alimony award and the wife has appealed. http://www.tba.org/tba_files/TCA/strangem.wpd JEAN STRAUB and PAUL STRAUB VS. JASON D. ROBERTS and WILLIAM J. HATCHER Court:TCA Attorneys: For the Plaintiffs/Appellants: For the Defendants/Appellees: David M. Sullivan Carol A. M. Hayden Memphis, Tennessee Memphis, Tennessee Judge: LILLARD First Paragraph: This is an automobile accident case. The plaintiff was a passenger in a car struck by the pickup truck driven by the defendant. The jury awarded the plaintiff $7,210 in damages. The jury assessed 50% of the fault to the defendant driver and 50% to the non-party driver of the plaintiff's vehicle. The trial court denied the plaintiff's motion for a new trial, but granted an additur of $6,000. The plaintiff appeals. We affirm, finding that there is material evidence to support the jury's verdict, and that the alleged errors by the trial court do not warrant a new trial. http://www.tba.org/tba_files/TCA/STRAUB~1.wpd F. G. SUTTON VS. J. W. SUTTON Court:TCA Attorneys: For the Appellant: For the Appellee: Charles M. Clifford Jerry G. Cunningham 339 High Street Melanie E. Davis Maryville, TN 37804 329 Cates Street Maryville, TN 37801 Judge: SWINEY First Paragraph: In this divorce action, J. W. Sutton ("Husband") appeals the Trial Court's division of the marital estate, the Trial Court's valuation of the marital home which reduced its value by a seven percent real estate sales commission although the house was never sold, and the award to F. G. Sutton ("Wife") of her attorney's fee. We find the record contains insufficient proof on the real estate commission and Wife's attorney's fee. Accordingly, we remand the case to the Trial Court for further proceedings on those two issues consistent with this Opinion. http://www.tba.org/tba_files/TCA/SuttonFG.wpd ANGELA JOAN WAGNER VS. RODNEY KEITH WAGNER Court:TCA Attorneys: JON S. JABLONSKI 2400 Crestmoor Road, Suite 315 Nashville, Tennessee 37215 Attorney for Plaintiff/Appellant FRANK M. FLY P. O. Box 398 Murfreesboro, Tennessee 37133-0398 Attorney for Defendant/Appellee Judge: CANTRELL First Paragraph: The trial court granted the parties a divorce, ordered joint custody of the parties' minor son, and divided the marital property. On appeal, Ms. Wagner contends that the trial court's award of joint custody on an alternating week basis was improper, that the division of marital property was inequitable, and that the trial court's order requiring her to bear one-half of the child's medical insurance was improper. We disagree and affirm the trial court's judgment. http://www.tba.org/tba_files/TCA/wagneraj.wpd STATE OF TENNESSEE VS. SUSAN L. ADAMS a/k/a SHANNON ADAMS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: SUSAN L. ADAMS, PRO SE PAUL G. SUMMERS a/k/a SHANNON ADAMS Attorney General & Reporter 116 High Street Portland, Tennessee 37148 DAVID H. FINDLEY Assistant Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243 Judge: LAFFERTY First Paragraph: The appellant, Susan L. Adams, a/k/a Shannon Adams, referred herein as "the defendant," appeals as of right from a sentence imposed by the Williamson County Circuit Court confining her for six (6) months in the Williamson County Jail. http://www.tba.org/tba_files/TCCA/adamssl.wpd STATE OF TENNESSEE VS. GREGORY LAVELL CARSON, SR. Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JERRY SCOTT PAUL G. SUMMERS JOHN KEA Attorney General & Reporter 110 City Center Building 100 East Vine Street MARK E. DAVIDSON P. O. Box 1216 Assistant Attorney General Murfreesboro, TN 37133-1216 425 Fifth Avenue North Nashville, Tennessee 37243 Judge: LAFFERTY First Paragraph: The appellant, Gregory Lavell Carson, Sr., referred herein as "the defendant," appeals as of right from two convictions of aggravated child abuse by a Rutherford County jury. The trial court imposed sentences of twenty (20) years as a Class A felony, Violent 100% Offender, in the Department of Correction. http://www.tba.org/tba_files/TCCA/carson.wpd STATE OF TENNESSEE VS. MICHAEL A. DANIEL Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DAVID L. RAYBIN PAUL G. SUMMERS SunTrust Center, Suite 2210 Attorney General and Reporter 424 Church Street Nashville, TN 37219 LUCIAN D. GEISE Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON District Attorney General EDWARD S. RYAN Assistant District Attorney General Washington Square, Suite 500 Nashville, TN 37201-1649 Judge: WELLES First Paragraph: The Defendant appeals from the sentences imposed by the trial court. He was convicted, upon his pleas of guilty, of three counts of vehicular homicide by intoxication. The trial judge sentenced him to three concurrent terms of twelve years in the Department of Correction. On appeal, the Defendant argues that the trial court erred in its application of certain enhancement factors, and therefore the sentence of twelve years for each conviction is excessive. We modify the sentences imposed by the trial court. http://www.tba.org/tba_files/TCCA/danielma.wpd MICHAEL ALLEN HAMLIN VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: HERSHELL D. KOGER 131 N. 1st Street P.O. Box 1148 Pulaski, TN 38478 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter MARVIN E. CLEMENTS JR. Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM MICHAEL McCOWN District Attorney General WEAKLEY E. BARNARD Assistant District Attorney General Marshall County Courthouse Lewisburg, TN 37091 Judge: RILEY First Paragraph: The petitioner, Michael Allen Hamlin, appeals the Marshall County Circuit Court's denial of his petition for post-conviction relief arising from his 1998 convictions for eight counts of aggravated burglary, Class C felonies. The sole issue is whether petitioner was deprived of effective assistance of counsel at the time of entry of his guilty plea, due to an alleged conflict of interest arising from counsel's joint representation of petitioner and his co-defendant. Based upon our review of the record, we conclude no conflict of interest existed. Thus, the judgment of the trial court is AFFIRMED. http://www.tba.org/tba_files/TCCA/hamlinma.wpd JOHN R. LEWIS VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: ANDREW J. DEARING, III. Assistant Public Defender 220 East College, Ste. C Fayetteville, TN 37334-1119 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter JENNIFER L. BLEDSOE Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM MICHAEL McCOWN District Attorney General ANN F. FILER Assistant District Attorney General 215 East College St. Fayetteville, TN 37334-0878 Judge: RILEY First Paragraph: The petitioner, John R. Lewis, appeals as of right the Lincoln County Circuit Court's denial of his petition for post-conviction relief arising from his 1997 conviction for aggravated sexual battery. Defendant received a sentence of ten years for his conviction. The conviction and sentence were affirmed by this court. See State v. John R. Lewis, C.C.A. No. 01C01-9707-CC-00289, Lincoln County (Tenn. Crim. App. filed September 23, 1998, at Nashville). Petitioner timely filed a pro se petition for post-conviction relief. Following an evidentiary hearing, the post-conviction court denied the petition. We AFFIRM the post-conviction court's judgment pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. http://www.tba.org/tba_files/TCCA/LewisJR.wpd STATE OF TENNESSEE VS. WALTER L. MERRIWEATHER, JOHN HEAD, JR., FREDDIE OSBORNE Court:TCCA Attorneys: FOR THE APPELLANTS: FOR THE APPELLEE: GREGORY D. SMITH PAUL G. SUMMERS One Public Square, Suite 321 Attorney General & Reporter Clarksville, TN 37040 DAVID H. FINDLEY MICHAEL R. JONES Assistant Attorney General District Public Defender Criminal Justice Division 425 Fifth Avenue North COLLIER W. GOODLETT Nashville, TN 37243 Assistant Public Defender 625 Frosty Morn Drive JOHN WESLEY CARNEY, JR. Clarksville, TN 37040 District Attorney General THOMAS R. MEEKS LISA DONEGAN Attorney At Law Assistant District Attorney 137 Franklin St. Clarksville, TN 37040 C. DANIEL BROLLIER, JR. Assistant District Attorney 120 Legion St. Clarksville, TN 37040 Judge: ACREE First Paragraph: This is an appeal as of right in three separate cases by defendants who challenge the constitutionality of T.C.A. S 39-17-432, the Drug-Free School Zone Act. These appeals involve a common question of law and have been consolidated pursuant to Rule 16 (b) Tenn. R. App. P. http://www.tba.org/tba_files/TCCA/merriweatherord.wpd STATE OF TENNESSEE VS. DANNY RAY TRULL Court:TCCA Attorneys: For the Appellant John H. Henderson District Public Defender P.O. Box 68 Franklin, TN 37065-0068 For the Appellee Paul G. Summers Attorney General and Reporter Clinton J. Morgan Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Jeff Burks Assistant District Attorney General P.O. Box 937 Franklin, TN 37065-0937 Judge: OGLE First Paragraph: The appellant, Danny Ray Trull, appeals his convictions in the Circuit Court of Hickman County of aggravated robbery, aggravated burglary, and evading arrest. Pursuant to these convictions, the trial court imposed consecutive sentences of twelve years incarceration in the Tennessee Department of Correction for the aggravated robbery conviction, six years incarceration for the aggravated burglary conviction, and six months incarceration for the conviction of evading arrest. On appeal, the appellant challenges the sufficiency of the evidence underlying his convictions. Additionally, the appellant challenges both the length and consecutive service of his sentences. Following a thorough review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/trulldanny.wpd JEROME MARTIN WRAY VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DAVID L. RAYBIN PAUL G. SUMMERS Hollins, Wagster & Yarbrough, P.C. Attorney General & Reporter 424 Church Street, Suite 2210 Nashville, TN 37219 ELIZABETH T. RYAN Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON, III District Attorney General DIANE LANCE Assistant District Attorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649 Judge: WOODALL First Paragraph: Petitioner Jerome Martin Wray appeals as of right from the dismissal of his post-conviction petition by the Davidson County Criminal Court. Petitioner raised numerous issues in his petition for post-conviction relief. After an evidentiary hearing the post-conviction court denied the petition in a written order. On appeal, Petitioner now alleges that the post-conviction court erred in its determination of eight issues. http://www.tba.org/tba_files/TCCA/wrayjm.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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