May 9, 2000 Volume 6 -- Number 069 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 01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 08 New Opinion(s) from the Tennessee Court of Appeals 02 New Opinion(s) from the Tennessee Court of Criminal Appeals 07 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 KOMATSU AMERICA INTERNATIONAL COMPANY and TRAVELERS PROPERTY CASUALTY VS. MARK A. CASH Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellees: Graham Swafford David C. Nagle P. O. Box 457 600 Georgia Avenue Jasper, TN 37347 Chattanooga, TN 37402 Judge: CATE First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant employee, Mark A. Cash, appeals the judgment of the trial court and asserts as error the following: (1) the failure to award any permanent disability, (2) the assessment of court costs against the defendant, (3) the failure to award the defendant his costs to prosecute the action, (4) the granting of the motion in limine, (5) the failure to give the defendant the presumption of T.C.A. S 50-6-116 and (6) the plaintiff's defense should be disallowed because of the provision of T.C.A. S 50-6-205(d)(1). We conclude that all of the foregoing are without merit and affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/komatsu.wpd COLDWELL BANKER-HOFFMAN BURKE and DONNA SLINEY, et al. v. KRA HOLDINGS, et al. Court:TCA Attorneys: Rex L. Brasher, Jr., Memphis, For Appellant, Sliney David J. Harris, Susan M. Clark, Memphis, For Appellees Judge: CRAWFORD First Paragraph: Plaintiff, a licensed affiliate real estate broker, sued to collect a commission for locating a particular property for a prospective buyer. When the sellers refused to sell the property, the prospective buyer abandoned efforts to obtain the property. About six weeks later, the prospective buyer contacted one of the sellers and was able to negotiate with all of the sellers for purchase of the property and ultimately consummated the purchase for a higher sale price than originally contemplated. Plaintiff alleges that she had an oral agreement for $150,000.00 commission, or, alternatively, that she was acting as a facilitator and entitled to a commission for her services as such. From the trial court's order granting summary judgment to defendant, plaintiff has appealed. http://www.tba.org/tba_files/TCA/coldwellbnker.wpd CUSTOM INTERIORS & SUPPLY CO., INC. v. INN-WAY, INC., et al. Court:TCA Attorneys: David A. Riddick, Jackson, Tennessee, for the appellant, Custom Interiors & Supply Co., Inc. Estelle C. Gaerig, Memphis, Tennessee, for the appellee, Robert Shropshire. Judge: FARMER First Paragraph: This appeal arises from a dispute over whether Defendant Robert Shropshire personally guaranteed the debts of Defendant Inn-Way, Inc., to Plaintiff Custom Interiors & Supply Company, Inc. Custom Interiors sued Inn-Way to recover the sum of $54,537.30 for orders placed by Inn-Way after October 1996. Custom Interiors also sued Inn-Way's president and owner, Robert Shropshire, contending that Shropshire had personally guaranteed Inn-Way's debts to Custom Interiors. After Inn-Way filed for bankruptcy protection, Custom Interiors proceeded to trial against Shropshire. The trial court entered a judgment finding that Custom Interiors had failed to carry its burden of proof and that Shropshire was not a personal guarantor of Inn-Way's debts to Custom Interiors. We affirm the trial court's judgment based upon our conclusion that the evidence does not preponderate against these findings. http://www.tba.org/tba_files/TCA/customint.wpd SEAN N. GEIGER v. PERCY PITZER, ET AL. Court:TCA Attorneys: Sean N. Geiger, Pro Se Tom Anderson, Jackson, Tennessee, for the appellee, Percy Pitzer. Judge: FARMER First Paragraph: An inmate presently in custody in the Whiteville Correctional Facility sued the warden and the CEO and Chairman of Corrections Corporation of America in a pleading styled Petition for Writ of Habeas Corpus. He seeks release from that facility contending that the State of Wisconsin Department of Corrections (DOC) released him when it surrendered him to a facility outside the borders of the State of Wisconsin for incarceration. The trial court dismissed the cause of action and we affirm. http://www.tba.org/tba_files/TCA/geigersn.wpd LAMAR C. PELL v. THE CITY OF CHATTANOOGA, et al. Court:TCA Attorneys: John C. Cavett, Jr., Chattanooga, Tennessee, for the appellant, Lamar C. Pell. David B. Kesler, Chattanooga, Tennessee, and Stacie L. Caraway, Chattanooga, Tennessee, for the appellee, Raymond F. Smith, Jr. d/b/a Green Moss Company. Paul G. Summers, Attorney General and Reporter, and Sean D. Clancy, Assistant Attorney General, for the intervenor, State of Tennessee. Judge: SWINEY First Paragraph: Plaintiff's residential property in Hamilton County was sold for delinquent property taxes after default judgment was entered against Plaintiff, the property owner. Plaintiff brought suit against the subsequent tax sale purchaser, and others, to set aside the default judgment and sale, asserting process had not been served properly on him in the delinquent tax suit. The Trial Court found that certified mail return receipts signed by Plaintiff's wife were sufficient proof of service under T.R.C.P. 4.04(10) and T.C.A. S 67-5-2415(e)(1), and granted summary judgment to the tax sale purchaser of the property and the other Defendants. Plaintiff argues on appeal that he was not served properly with process, first arguing that he was not served at all and then arguing that the statutory service procedure relied upon by the Trial Court violates due process. The judgment of the Trial Court is affirmed. http://www.tba.org/tba_files/TCA/PellLC.wpd JOHN PITNER, v. FAYETTE COUNTY, TENNESSEE Court:TCA Attorneys: Michael W. Whitaker, Covington, Tennessee, for the appellant, John Pitner. Joel Porter and Todd A. Rose, Paris, Tennessee, for the appellee, Fayette County, Tennessee. Judge: FARMER First Paragraph: This appeal results from the trial court's dismissal of Plaintiff John Pitner's cause of action against Defendant Fayette County, Tennessee ("County") pursuant to Rule 41.02(2) of the Tennessee Rules of Civil Procedure. The trial court ruled that Mr. Pitner, the former Director of Planning and Development for the County, failed to prove that the County was contractually obligated to pay overtime to him and that Mr. Pitner further failed to prove damages. We affirm on the basis that Mr. Pitner failed to prove the existence of a contract. http://www.tba.org/tba_files/TCA/Pitnerj.wpd JAMES REED, et al. v. JAMIE HAMILTON, et ux. Court:TCA Attorneys: T. Larry Edmondson, Nashville, Tennessee and Gregory D. Smith, Clarksville, Tennessee, for the appellants, Jamie Hamilton and wife, Bonnie Hamilton. James M. Glasgow, Union City, Tennessee, for the appellees, James Reed and Wayne Matthews. John M. Miles, Union City, Tennessee, for the appellee, Hulon O. Warlick, III. Judge: FARMER First Paragraph: This appeal arises from a dispute between neighboring landowners regarding whether there is an easement across the real property of Defendants Jamie and Bonnie Hamilton for the benefit of Plaintiffs Hulon O. Warlick, III, James Reed, and Wayne Matthews. Mr. Warlick filed a complaint and Mr. Reed and Mr. Matthews filed a similar complaint against the Hamiltons asking the trial court to declare the existence of such an easement. http://www.tba.org/tba_files/TCA/reedj.wpd DON SMITH, v. KEYPORT SELF-STORAGE, et al. Court:TCA Attorneys: Carol Mills Hayden, Memphis, Tennessee, for the appellants, Keyport Self-Storage, et al. Samuel Jones, Memphis, Tennessee, for the appellee, Don Smith. Judge: LILLARD First Paragraph: This is a negligent supervision lawsuit. The plaintiff rented a unit from the defendants' self- storage facility. An employee of the self-storage facility stole the plaintiff's property and disappeared. The plaintiff sued the storage facility and its owners, alleging negligent supervision of the dishonest employee. A jury found in favor of the plaintiff and awarded compensatory damages. The defendants appeal. We reverse, finding that the plaintiff submitted insufficient evidence to support a finding of negligent supervision. http://www.tba.org/tba_files/TCA/Smithd.wpd CLAUDE WILLIS v. LOLA MAE WRIGHT WILLIS Court:TCA Attorneys: C. Timothy Crocker, Milan, Tennessee, for the appellant, Claude Willis. Marsha W. Johns, Huntingdon, Tennessee, for the appellee, Lola Mae Wright Willis. Judge: FARMER First Paragraph: This appeal arises from a dispute between Plaintiff Claude Willis and Defendant Lola Mae (Wright) Willis regarding the terms of their divorce. The trial court granted an absolute divorce to Ms. Wright, divided the parties' marital property, allocated the parties' marital debt, and awarded Ms. Wright alimony in solido, alimony in futuro, and attorney's fees. http://www.tba.org/tba_files/TCA/willis.wpd STATE OF TENNESSEE v. LARRY EDWARD ENGLET Court:TCCA Attorneys: Lloyd R. Tatum, Henderson, Tennnessee, for the appellant, Larry Edward Englet. Paul G. Summers, Attorney General and Reporter, Tara B. Hinkle, Assistant Attorney General, James G. Woodall, District Attorney General, and Chris Schultz, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant appeals from his conviction of possession of marijuana with intent to sell, a Class E felony. He claims that because the indictment failed to specify the amount of marijuana he was accused of possessing, he could properly be convicted of no offense greater than simple possession of marijuana, a Class A misdemeanor. Because his argument is without merit, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/ENGLETLE.wpd STATE OF TENNESSEE v. KELANI MELIA MAYER Court:TCCA Attorneys: Lloyd R. Tatum (on appeal), Henderson, Tennessee, and Teresa McCaig Marshall(at trial), Paris, Tennessee, for the appellant, Kelani Melia Mayer. Paul G. Summers, Attorney General & Reporter, J. Ross Dyer, Assistant Attorney General, Robert G. Radford, District Attorney General, and Beth Boswell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Kelani Melia Mayer, was convicted of conspiracy to sell a Schedule I controlled substance. In this appeal, she asserts that the indictment was defective for failure to allege any overt act in furtherance of the conspiracy, that hearsay evidence was erroneously admitted at trial, that the evidence was insufficient, and that the sentence was excessive. http://www.tba.org/tba_files/TCCA/mayer.wpd Group Homes for the Mentally Retarded Date: April 25, 2000 Opinion Number: Opinion No. 00-076 http://www.tba.org/tba_files/AG/OP76.pdf Constitutionality of House Bill 3062/Senate Bill 2320 Date: April 25, 2000 Opinion Number: Opinion No. 00-077 http://www.tba.org/tba_files/AG/OP77.pdf Community Corrections Act Date: April 27, 2000 Opinion Number: Opinion No. 00-078 http://www.tba.org/tba_files/AG/OP78.pdf Zero Tolerance Policy of the Department of Human Services Date: May 1, 2000 Opinion Number: Opinion No. 00-079 http://www.tba.org/tba_files/AG/OP79.pdf Authority of Domestic Violence State Coordinating Council Date: May 1, 2000 Opinion Number: Opinion No. 00-080 http://www.tba.org/tba_files/AG/OP80.pdf Senate Bill 3291/House Bill 3301 - Private Act - Sevier County Commission - Nonbinding Referendum - Zoning - Constitutionality Date: May 1, 2000 Opinion Number: Opinion No. 00-081 http://www.tba.org/tba_files/AG/OP81.pdf Constitutionality of Amendments to HB 2297/ SB 2475 concerning Grandparent Visitation Date: May 2, 2000 Opinion Number: Opinion No. 00-082 http://www.tba.org/tba_files/AG/OP82.pdf 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! For the Plain Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE 3) Leave the body of the message blank For the HTML Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE HTML 3) Leave the body of the message blank UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! To STOP receiving TBALink Opinion-Flash: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: UNSUBSCRIBE 3) Leave the body of the message blank © Copyright 2000 Tennessee Bar Association