May 30, 2000 Volume 6 -- Number 080 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):   03 New Opinion(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 04 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 LARRY W. BARNES v. THE GOODYEAR TIRE AND RUBBER COMPANY Court:TSC Attorneys: Dan M. Norwood, Memphis, Tennessee, for the appellant, Larry W. Barnes Tim K. Garrett and Michael S. Moschel, Nashville, Tennessee and James M. Glascow, Jr., Union City, Tennessee, for the appellee, The Goodyear Tire and Rubber Company Judge: HOLDER First Paragraph: We granted this appeal to address: (1) the appropriate framework for analyzing a handicap discrimination claim under the Tennessee Handicap Discrimination Act; and (2) whether the evidence supported the jury's finding of handicap discrimination. We hold that the record contains material evidence to support the jury's verdict. The Court of Appeals is reversed and the case is remanded to the Court of Appeals for resolution of the issues pretermitted by that court. http://www.tba.org/tba_files/TSC/Barneslw.wpd BETTY BERRYHILL v. CHARLES THOMAS RHODES WITH DISSENTING OPINION Court:TSC Attorneys: Mitchell D. Moskovitz, Memphis, Tennessee for the Appellant, Betty Berryhill. Robert L. Green, Memphis, Tennessee for the Appellee, Charles Thomas Rhodes. Judge: HOLDER First Paragraph: We granted this appeal to determine: (1) whether parties may enter into a private agreement regarding the payment of child support outside the Child Support Guidelines; (2) whether the evidence preponderates against an award of retroactive child support in excess of the amount agreed upon by the parties; and (3) whether the plaintiff rebutted the presumption that a two-year average of income should be used to determine the amount of child support due under the guidelines. http://www.tba.org/tba_files/TSC/berryhilb_opn.wpd WITH DISSENTING OPINION http://www.tba.org/tba_files/TSC/berryhillbd_dis.wpd STATE OF TENNESSEE v. DENNIS R. ENGLAND WITH DISSENTING OPINION Court:TSC Attorneys: R. Eddie Davidson of Nashville, Tennessee, for the appellant, Dennis R. England Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Daryl J. Brand, Associate Solicitor General, Nashville, Tennessee (ON APPEAL), and Lawrence Ray Whitley, District Attorney General, and Dee Gay, Assistant District Attorney (AT TRIAL), for the appellee, State of Tennessee Judge: ANDERSON First Paragraph: This is an appeal from the Criminal Court for Sumner County, which granted the defendant's motion to suppress evidence obtained from a canine sweep of his legally detained motor vehicle. The trial court concluded that a canine sweep is not a search under the Fourth Amendment to the United States Constitution but nonetheless held that the officer's investigation should have ceased upon the defendant's refusal to consent to a search. The Court of Criminal Appeals agreed with the State that, because a canine sweep is not a search under the Fourth Amendment to the United States Constitution and the defendant's vehicle was legally stopped, the defendant's consent was not necessary, and the officer needed neither probable cause nor reasonable suspicion to conduct the canine sweep. http://www.tba.org/tba_files/TSC/Englandd_opn.wpd WITH DISSENTING OPINION http://www.tba.org/tba_files/TSC/englanddd_dis.wpd SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/CERTLIST_0530.wpd RAVEN VICK CHADWELL v. MARK STUART CHADWELL Court:TCA Attorneys: John M. Cannon, Goodlettsville, Tennessee, for the appellant, Raven Vick Chadwell. Brenda Measells Dowdle, Nashville, Tennessee, for the appellee, Mark Stuart Chadwell. Judge: SUSANO First Paragraph: This is a post-divorce case. The custodial parent filed a petition seeking to increase support for her minor child. The trial court denied the petition. The petitioner appeals, arguing that the trial court erred in failing to set child support in conformity with the Child Support Guidelines and in awarding her former husband his attorney's fees. http://www.tba.org/tba_files/TCA/ChadwellRV.wpd GERALD JOE LAYNE, et al. v. PAUL TAYLOR, et al. Court:TCA Attorneys: Everett L. Hixson, Jr., Christine Mahn Sell, Jane M. Stahl, Chattanooga, Tennessee, for the appellants, Paul Taylor, Trustee, and Cindy Garner. Edward Boring, Pikeville, Tennessee, for the appellees, Gerald Joe Layne, and wife, Beulah Layne; Randell Cady, and wife, Phyllis Cady; Jeffery Harmon, and wife, Kimberly Harmon; U.R. Anderson, Landon Greer, III, Alma Green, Norman Hatfield, and wife, Olivia Hatfield. Judge: COTTRELL First Paragraph: In this restrictive covenant case, Defendants, the owners of parcels of land in and adjoining a subdivision, appeal the trial court's decision to permanently enjoin the use of restricted lots in the subdivision solely as a means of access to unrestricted property adjoining the subdivision. We agree with the trial court that such proposed use would violate the restrictive covenant prohibiting any use "except for residential purposes" and affirm. http://www.tba.org/tba_files/TCA/LayneG.wpd OLLIE SPEAKMAN, JR. v. ADA FERRELL GARDEN APARTMENTS, et al. Court:TCA Attorneys: Russell L. Leonard, Winchester, Tennessee, for the appellant, Ollie Speakman, Jr. Russell D. Hedges, Tullahoma, Tennessee, for the appellees, Ada Ferrell Garden Apartments and Morris Property Management, Inc. Judge: GODDARD First Paragraph: Ollie Speakman, Jr., an employee of Ada Ferrell Garden Apartments, appeals the summary judgment granted by the Circuit Court in favor of his employer. Mr. Speakman filed a complaint against his employer after he was discharged alleging that his employer discharged him in retaliation for filing a worker's compensation claim. The employer filed a summary judgment motion, which was granted by the Circuit Court. We affirm the Circuit Court and remand for collection of costs. http://www.tba.org/tba_files/TCA/speakmanoll.wpd STEPHEN F. WIELGUS, JR., ET AL. v. DOVER INDUSTRIES, INC. Court:TCA Attorneys: Charles Williams and John B. Carlson, Nashville, Tennessee, for the appellants, Stephen F. Wielgus, Jr. and Jeanie K. Wielgus. David E. Harvey and Richard E. Spicer, Nashville, Tennessee, for the appellee, Dover Industries, Inc. Judge: CAIN First Paragraph: Appellants in this action are Stephen F. Wielgus, Jr. and wife, Jeanie K. Wielgus. After Mr. Wielgus suffered an on-the-job injury, Appellants sued Dover Industries, Inc., manufacturer of a certain automobile and light truck lift known as the rotary lift, model AP-50H. They also sued James Shumaker, d/b/a Shumaker's Equipment Service, installer and servicer of the particular rotary lift involved in this case. On appeal, Appellants take issue with the jury verdict form because it did not permit the jury to assign a percentage of fault to the unreasonably dangerous condition of the rotary lift which caused Mr. Wielgus' injury. In addition, Appellants claim that the trial court should have granted them a new trial because the jury's verdict is inconsistent. For the reasons that follow, we disagree with Appellants and affirm the trial court in all respects. http://www.tba.org/tba_files/TCA/WielgusStephen.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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