April 27, 2000 Volume 6 -- Number 062 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 14 New Opinion(s) from the Tennessee Court of Appeals 03 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 421 CORPORATION, et al. VS. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al. Court:TCA Attorneys: Joel H. Moseley and Robert W. Rutherford, Nashville, Tennessee, for the appellants, 421 Corporation and Mike Sokolic. James L. Murphy, Lizabeth D. Foster, and Francis H. Young, Nashville, Tennessee, for the appellees, Metropolitan Government of Nashville and Davidson County, Tennessee and the Metropolitan Board of Zoning Appeals. Judge: KOCH First Paragraph: This appeal involves a dispute between a sexually oriented business and a city over the business's desire to expand onto adjoining property. After the city's board of zoning appeals denied its application for a building permit because the business had not met the requirements for the expansion of a nonconforming use, the business filed a petition for a common-law writ of certiorari in the Chancery Court for Davidson County asserting that it had satisfied the city's standards for expanding a nonconforming use and that the board was selectively enforcing the city's land use regulations. The trial court, sitting without a jury, rejected both claims and affirmed the board's decision. On this appeal, the business renews the same arguments that proved unsuccessful below. We have determined that the board correctly interpreted the city's land use regulations and that the selective enforcement allegations fail to state a claim for which relief can be granted. Accordingly, we affirm the order dismissing the petition for writ of certiorari. http://www.tba.org/tba_files/TCA/421corp.wpd DEBRA A. BULLINGTON VS. RAYMOND KEITH HUDSON Court:TCA Attorneys: Robert L. Jackson, Stanley A. Kweller, Nashville, Tennessee, for the appellants, Raymond Keith Hudson. John J. Hollins, Jr., Nashville, Tennessee, for the appellee, Debra A. Bullington. Judge: CAIN First Paragraph: This appeal involves a father's child support obligation. After the child's mother filed a petition to increase child support, the trial court increased the amount of child support prospectively as well as retrospectively for a period of seven years prior to the mother's petition to increase support. The court's retrospective modification was effected by a correction of the prior support order pursuant to Tennessee Rule of Civil Procedure 60.01. We hold that the court erred in its retroactive modification of child support as well as in its decision not to award the wife attorney fees below. http://www.tba.org/tba_files/TCA/Bullingtond.wpd RICHARD DIETZ, II, EXECUTOR OF THE ESTATE OF BARBARA DIETZ, et al. VS. CHARLES A. KEITH, et al. Court:TCA Attorneys: Cherie S. Adams and Jill R. Rayburn, Kingsport, Tennessee, for the appellants, Richard Dietz, II, Executor of the Estate of Barbara Dietz, and Jose Flores. Cecil W. Laws and W. Carr Hagan, Jr., Kingsport, Tennessee, for the appellees, Charles A. Keith and MiniFibers, Inc. Judge: SUSANO First Paragraph: Barbara Dietz and Jose Flores, former corporate officers of MiniFibers, Inc. ("the corporation"), brought this action after the corporation terminated their employment. They contend that they are each entitled to one-third of the outstanding common stock of the corporation. The trial court granted the defendants -- the corporation and Charles A. Keith -- summary judgment, holding that the plaintiffs were judicially estopped from claiming any ownership interest in the corporation. The plaintiffs appeal, arguing that the defendants are not entitled to summary judgment. The defendants, on the other hand, argue that summary judgment is appropriate on one or more of the following grounds: (1) judicial estoppel; (2) statute of limitations; (3) laches; (4) equitable estoppel; and (5) that the promise to transfer stock is an unenforceable gift. We vacate the judgment of the trial court and remand for further proceedings. http://www.tba.org/tba_files/TCA/Dietzr.wpd ALANA DOWELL, et al. VS. JESSE C. MINOR, et al. Court:TCA Attorneys: Hugh C. Howser, Jr. and Kenneth Mark Bryant, Nashville, Tennessee, for the appellants, Evylee Minor and Leann Morrison. Hal Hardin, Nashville, Tennessee, for the appellant, Jesse C. Minor. Nadar Baydoun and Stephen C. Knight, Nashville, Tennessee, for the appellees, Alana Dowell and Debra Fleming. Judge: KOCH First Paragraph: This interlocutory appeal involves the appointment of a guardian ad litem for a 73-year-old prisoner who is a defendant in a proceeding pending in the Circuit Court for Davidson County. The prisoner's daughter requested to be appointed as her father's guardian ad litem because he is unable to effectively assist with his defense. The trial court denied the petition but granted the daughter's petition for an interlocutory appeal. We concur with the trial court that an interlocutory appeal will prevent needless, expensive, and protracted litigation. Accordingly, we grant the interlocutory appeal and reverse the order denying the petition for the appointment of a guardian ad litem in accordance with Tenn. Ct. App. R. 10(b). http://www.tba.org/tba_files/TCA/Dowella.wpd RICHARD FELDMAN VS. TENNESSEE BOARD OF MEDICAL EXAMINERS Court:TCA Attorneys: Frank J. Scanlon, Nashville, Tennessee, for the appellant, Richard Feldman. Paul G. Summers, Attorney General and Reporter, Michelle Hohnke Joss, Assistant Attorney General, for the appellee, Tennessee Board of Medical Examiners. Judge: CANTRELL First Paragraph: The Board of Medical Examiners disciplined a physician for "unprofessional, dishonorable or unethical conduct," and placed his license on probation for one year, with continuation of his practice subject to conditions which included obtaining the "advocacy" of another doctor. The following year, the Board issued a new notice of charges, alleging failure to comply with the conditions in the probationary order. After a hearing, the Board found the physician guilty of the new charges, and placed his license on probation for five years, with new conditions placed upon the continuation of his practice. The physician petitioned the chancery court for judicial review of the Board's action. The chancellor affirmed the order of the Board. On appeal, we affirm the new order of probation, but reverse as to those conditions which are unsupported by the evidence in the record. http://www.tba.org/tba_files/TCA/feldmanr.wpd DEBORAH ANN HANSEN VS. OLE HANSEN Court:TCA Attorneys: David E. Fowler, Chattanooga, Tennessee, for the appellant, Ole Hansen. Don W. Poole, Chattanooga, Tennessee, for the appellant, Deborah Ann Hansen. Judge: SUSANO First Paragraph: This is a divorce case. The trial court entered a judgment establishing a residential schedule for the parties' minor child; designating Deborah Ann Hansen ("Mother") the "primary custodian" of the child; and ordering Ole Hansen ("Father") to pay child support of $315 per month. Father appeals, arguing that the trial court erred in refusing to alternate the designation of primary residential parent between the parties on an annual basis when, according to Father, the parenting plan adopted by the trial court demonstrates that the parties are, in fact, equal custodians of the child. He also contends that the trial court erred when it stated that the designation of one parent as the primary residential parent is a designation "in name only." In addition, Father contends that the trial court erred in setting his child support obligation. We affirm. http://www.tba.org/tba_files/TCA/Hansenda.wpd VIOLET HOWARD VS. KRISTI THURMAN, et al. Court:TCA Attorneys: Phillips M. Smalling, Byrdstown, Tennessee, for the appellants, Kristi Thurman, Danny Howard, Robert Howard and Martha Howard S. N. Garrett, for the appellee, Violet Howard Judge: CANTRELL First Paragraph: The Chancery Court of Fentress County held that the appellee had an implied easement for a driveway and parking area adjacent to her home. The appellants assert that the evidence preponderates against the court's finding. We affirm. http://www.tba.org/tba_files/TCA/howardv.wpd LACEY A. MAINE VS. WELLMONT HEALTH SYSTEM d/b/a BRISTOL REGIONAL MEDICAL CENTER, et al. Court:TCA Attorneys: Thomas C. Jessee, Johnson City, Tennessee, for the appellant, Lacey A. Maine. William T. Gamble and Russell W. Adkins, Kingsport, Tennessee, for the appellees Michael D. Rowell, M.D., D. Nelson Gwaltney, M.D., and Bristol Surgical Associates, P.C. Charles T. "Chip" Herndon IV, Johnson City, Tennessee, for the appellees Stefan J. Grenvik, M.D., Richard M. Penny, M.D., and Bristol Anesthesia Services, P.C. Jimmie C. Miller, Kingsport, Tennessee, for the appellees Wellmont Health System, d/b/a Bristol Regional Medical Center, Jerry Bullard, CRNA and Bob Herndon, CRNA. Judge: SUSANO First Paragraph: In this medical malpractice action arising out of the plaintiff's surgery, the trial court granted the defendants summary judgment. The plaintiff appeals, contending that there are disputed material facts that make summary judgment inappropriate. We affirm. http://www.tba.org/tba_files/TCA/MAINEL.wpd DONALD MALONE and LYNN MALONE, d/b/a MALONE & SON'S WRECKER AND REPAIR SERVICE, LLC, VS. ASSOCIATES COMMERCIAL CORPORATION Court:TCA Attorneys: James t. Bowman and A. Scott Pratt, Johnson City, Tennessee, for Appellant. James A. Matlock, Jr., and Michael P. McGovern, Ayres and Parkey, Attorneys, Knoxville, for Appellee. Judge: FRANKS First Paragraph: Plaintiff brought an action for the wrongful removal of a tractor trailer from his premises. The portion of the action relating to compensatory damage was settled between the parties by the defendant paying plaintiff $2,500.00. The Trial Judge had granted partial summary judgment to defendant on the issue of punitive damages, and the settlement preserved that issue for appeal. Plaintiff has appealed. We reverse the Trial Court's judgment on the issue of punitive damages. http://www.tba.org/tba_files/TCA/maloned.wpd KENNETH MORRIS VS. CHRISTOPHER NORWOOD, et al. Court:TCA Attorneys: Joe G. Bagwell, Knoxville, Tennessee, for the appellant, Kenneth Morris. William J. Brown, Cleveland, Tennessee, for the appellees, Christopher Norwood and Kevin Rigdon. Judge: SUSANO First Paragraph: The plaintiff sued to rescind a contract by which he agreed to sell his sports trading card business to the defendants. The trial court granted rescission. As a part of its judgment, the court ordered the plaintiff to pay the defendants $2,000. The plaintiff appeals, claiming that the trial court's judgment fails to return the parties to the status quo before the sale. We affirm. http://www.tba.org/tba_files/TCA/Morrisk.wpd PROFESSIONAL ENGINEERING SERVICES, INC. VS. CITY OF RED BOILING SPRINGS, TENNESSEE Court:TCA Attorneys: Jacky O. Bellar, BELLAR & BELLAR, Carthage, Tennessee for Appellant A. Russell Brown, Lafayette, Tennessee for Appellee Judge: HIGHERS First Paragraph: This appeal involves a dispute over whether a contract to provide services was formed between defendant-city and plaintiff-engineers and if so, whether defendant-city breached the contract. The court below held that a contract was formed between the parties and granted plaintiff-engineers recovery under the contract. In the alternative, the trial court held that plaintiff-engineers would be entitled to recover in quantum meruit in the absence of a valid contract. Defendant-city appeals. http://www.tba.org/tba_files/TCA/profeng.wpd GEORGE PRYOR, et al. VS. TIM WILLOUGHBY, et al. Court:TCA Attorneys: Philip Elbert and Kendra Samson, Nashville, Tennessee, for the appellants, George Pryor and Sharon Pryor. Michael Mills and Bryan Smith, Brentwood, Tennessee, for the appellees, Tim Willoughby and Jane Willoughby. Judge: CANTRELL First Paragraph: This case involves the proper measure of damages on a nuisance claim. The trial court awarded the plaintiffs damages for the cost of restoring their property to the condition it was in before the defendants' negligence caused their septic system to back up and overflow into their house. The court also awarded them damages for discomfort, inconvenience, embarrassment and emotional distress. The plaintiffs filed a motion to alter or amend the judgment, arguing that they were entitled to additional damages, measured by the decline in the rental value of their property during the time that the nuisance persisted. The trial court denied the motion because the plaintiffs never rented out their house, but continued to reside in it despite the existence of the nuisance. We find that the plaintiffs are entitled to compensation for the loss of use and enjoyment of their property, measured by the decline in its rental value, and we accordingly reverse the trial court. http://www.tba.org/tba_files/TCA/pryorg.wpd TERRY TRAYLOR VS. NORTH AMERICAN ROYALTIES, INC. d/b/a WHELAND FOUNDRY Court:TCA Attorneys: Walter E. Grantham, III, Chattanooga, Tennessee, for the appellant, Terry Traylor. Christopher H. Steger and Stacie L. Caraway, Chattanooga, Tennessee, for the appellee, North American Royalties, Inc., d/b/a/ Wheland Foundry. Judge: SWINEY First Paragraph: Plaintiff, Terry Traylor, alleged in his Complaint that he was terminated from his job at Wheland Foundry because he filed a workers' compensation claim for benefits. Defendant, North American Royalties, Inc., d/b/a/ Wheland Foundry, filed a Motion for Summary Judgment. At the hearing on that Motion, Defendant argued that it fired Plaintiff in accordance with the company's Absence Control Program and not because of his workers' compensation claim. The Trial Court granted the Defendant's Motion for Summary Judgment. In this appeal, Plaintiff argues that there are genuine issues of material fact requiring a trial, and, therefore, the Trial Court erred in granting Defendant's Motion for Summary Judgment. The judgment of the Trial Court is affirmed. http://www.tba.org/tba_files/TCA/TraylorT.wpd SUSAN LYNN WHITE (COLBERT) VS. CHARLES JEROME WHITE Court:TCA Attorneys: Clark Lee Shaw, Nashville, Tennessee, for the appellant, Susan Lynn White. Mary Frances Lyle, Nashville, Tennessee, for the appellee, Charles Jerome White. Judge: CLARK First Paragraph: This case involves the legality of an order by which the trial court "permanently terminated" a mother's visitation rights with her minor son. The trial court dismissed the mother's petition for a reinstatement of visitation on the basis that it had permanently terminated her visitation rights several years earlier. On appeal, the mother argues that it was unlawful for the trial court to permanently terminate her visitation rights. We agree with the Mother and hold that the trial court's order must be reversed and this case remanded to the trial court for a hearing on the mother's petition to reinstate visitation. http://www.tba.org/tba_files/TCA/WhiteSL.wpd STATE OF TENNESSEE VS. DENNIS W. MENZIES Court:TCCA Attorneys: Raymond L. Ivey, Huntingdon, Tennessee, for the appellant, Dennis W. Menzies. Paul G. Summers, Attorney General and Reporter, R. Stephen Jobe, Assistant Attorney General, G. Robert Radford, District Attorney General, and Beth Boswell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: Based upon a tip from a confidential informant that the defendant was transporting illegal drugs, law enforcement officers stopped the defendant's vehicle. Following an "alert" by a drug-sniffing dog, officers searched the defendant, his vehicle, and the car hauler he was operating. Cocaine was found both on the defendant's person and in the console of the car he was hauling. After the court overruled the defendant's motion to suppress the search and seizure, he was convicted of possession of cocaine with intent to manufacture, sell, or deliver. He appealed his conviction, asserting that the stop and search were illegal. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/MENZIE~1.wpd STATE OF TENNESSEE VS. LORI RAY Court:TCCA Attorneys: C. Michael Robins, Memphis, Tennessee, Jim W. Horner and H. Tod Taylor, Dyersburg, Tennessee, for the appellant, Lori Ray. Paul G. Summers, Attorney General and Reporter, and J. Ross Dyer, Assistant Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: The defendant/appellant, Lori Reeves Ray, appeals as of right from the revocation of her probation by the Dyer County Circuit Court. The defendant presents one appellate issue: Whether the trial court abused its discretion by revoking the defendant's probation where there is no evidence the defendant's non-compliance was due to willful and deliberate refusal to make payments as ordered by the trial court. http://www.tba.org/tba_files/TCCA/rayl.opn.wpd FRANKLIN DAN RICKMAN VS. STATE OF TENNESSEE Court:TCCA Attorneys: Franklin Dan Rickman, pro se, Only, Tennessee. Paul G. Summers, Attorney General and Reporter, Patricia C. Kussmann, Assistant Attorney General, C. Phillip Bivens, District Attorney General, and James Lanier, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner was convicted of theft and felony escape, and brought a post-conviction proceeding challenging his convictions. The petition was denied by the trial court. We affirm the dismissal of the petition. http://www.tba.org/tba_files/TCCA/RICKMA~1.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! 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