June 1 , 2000 Volume 6 -- Number 082 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):   01 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 13 New Opinion(s) from the Tennessee Court of Appeals 06 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 THOMAS GREGORY v. AMERICAN MANUFACTURERS MUTUAL INS. Court:TSC First Paragraph: This case is before the Court upon motion for review pursuant to Tenn. Code Ann. S 50-6-225(e)(5)(B), the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference; http://www.tba.org/tba_files/TSC/thomasgregory.wpd ELIZABETH DIANE BOSI v. KEVIN P. BOSI Court:TCA Attorneys: Patricia A. Woods, Memphis, for Appellant, Elizabeth Diane Bosi Wendy S. Dabbous, Andrea M. Lazarini, Memphis, for Appellee, Kevin P. Bosi Judge: HIGHERS First Paragraph: This appeal arises from a Petition to Modify Custody filed by plaintiff-Father. Father alleged that a material change in circumstances had occurred because defendant-Mother had deteriorating mental health conditions and was involved in a violent and abusive relationship. In addition, Father alleged that Mother was unnecessarily hospitalizing the parties' minor child for psychotic disorders. The trial court found in favor of Father and granted him sole custody of the child and allowed only supervised visitation of the child with Mother. Mother appeals on the basis that the trial court lacked jurisdiction over the child. In the alternative, Mother asserts that there was not a material change in circumstances warranting a change in custody. http://www.tba.org/tba_files/TCA/bosielizabeth.wpd CLARK MATTHEW EARLS v. SHIRLEY ANN EARLS WITH CONCURRING AND DISSENTING OPINION Court:TCA Attorneys: Thomas F. Bloom and Robyn Ryan, Nashville, Tennessee, for the appellant, Clark Matthew Earls. R. E. Lee Davies, Franklin, Tennessee, for the appellee, Shirley Ann Earls. Judge: KOCH First Paragraph: This appeal involves a marriage irretrievably broken by a catastrophic injury to the wife. The parties separated after attempting to cope with the wife's condition for over one year, and the husband filed for an irreconcilable differences divorce in the Circuit Court for Williamson County. The wife agreed that the parties had irreconcilable differences but resisted the divorce because she desired to continue being covered by the husband's employer-provided group medical insurance. The trial court heard the evidence without a jury and declined to grant the husband a divorce or to declare the parties divorced. http://www.tba.org/tba_files/TCA/Earlscm.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/Earlscmc_Con.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCA/Earlscmd_dis.wpd JEAN MARIE GRANDSTAFF, et al. v. WILLIAM H. HAWKS, JR., et al. Court:TCA Attorneys: Paul M. Buchanan, Nashville, Tennessee, for the appellant, State Farm Mutual Insurance Company. Neal Agee, Jr., Lebanon, Tennessee, for the appellee, Jean Marie Grandstaff. Judge: KOCH First Paragraph: This appeal involves an automobile collision on the Carthage Highway in Wilson County in which one of the drivers was killed and the driver of the other vehicle and his passenger were injured. The passenger filed separate negligence actions against the drivers in the Circuit Court for Wilson County. These suits were consolidated with the suit involving the two drivers' negligence claims against each other. http://www.tba.org/tba_files/TCA/Grandstaffjm.wpd MARY JOHNSON, et al. v. LEBONHEUR CHILDREN'S MEDICAL CENTER, et al. Court:TCA Attorneys: Thomas R. Prewitt, Jr.; Robertson M. Leatherman; Parke S. Morris, Memphis, For Appellant, Lebonheur Children's Medical Center Randall L. Kinnard; Steven R. Walker, Memphis, For Appellees Judge: CRAWFORD First Paragraph: In this medical malpractice case, the plaintiff sued a hospital and several physicians, including a resident physician in the University of Tennessee training program. The complaint alleges, among other things, that the hospital is liable to plaintiff pursuant to respondeat superior for alleged negligence on the part of two University of Tennessee resident physicians. The hospital sought partial summary judgment as to any liability by virtue of acts of the resident physician, because the resident physicians are immune from suit pursuant to the Tennessee Claims Commission Act; thus, they assert that since the agent or servant cannot be held liable, the principal or master cannot be held liable. From the order of the trial court denying hospital a partial summary judgment, Hospital was granted an interlocutory appeal. http://www.tba.org/tba_files/TCA/johnsonmary.wpd K. C. LAM, d/b/a K. C. LAM AND ASSOCIATES v. ROBERT ALLEN Court:TCA Attorneys: William G. Hardwick II, Memphis, For Appellant Archie Sanders, III, Memphis, For Appellee, Robert Allen Judge: CRAWFORD First Paragraph: This case involves allegations of fraud. Plaintiff sued Thabet Saleh and Robert Allen to recover the amount of a loan made to Saleh as a result of misrepresentations of fact made by Saleh and Allen which induced plaintiff to make the loan. The case was nonsuited as to Saleh when plaintiff failed to obtain service of process. The trial court granted summary judgment to Allen, and plaintiff has appealed. http://www.tba.org/tba_files/TCA/lamkc.wpd RICHARD A. LEEMIS v. PAUL O. RUSSELL, JR. Court:TCA Attorneys: Erich M. Shultz, Memphis, Tennessee, for the appellant, Richard A. Leemis. Stephen H. Biller, Memphis, Tennessee, for the appellee, Paul O. Russell, Jr. Judge: FARMER First Paragraph: This appeal arises from a dispute regarding the termination of Plaintiff Richard A. Leemis from his employment with the Regional Medical Center at Memphis ("The Med"). Mr. Leemis filed a complaint against Defendant Paul O. Russell, Jr., the president of Medical Services Research Group, Inc. ("MSRG"), alleging that Mr. Russell intentionally interfered with his employment relationship with The Med and induced or procured the termination of his employment. http://www.tba.org/tba_files/TCA/leemisra.wpd EDDIE BROWN LIMBAUGH, Executor of the Estate of EMMA RUTH LIMBAUGH v. COFFEE MEDICAL CENTER, et al. Court:TCA Attorneys: Michael M. Castellarin, Nashville, Tennessee, for the appellant, Coffee Medical Center. H. Thomas Parsons, Manchester, Tennessee, for the appellee, Eddie Brown Limbaugh, Executor of the Estate of Emma Ruth Limbaugh. Louise Ray, Manchester, Tennessee, appellee, Pro Se. Judge: FARMER First Paragraph: In January 1997, Emma Ruth Limbaugh, an Alzheimer's patient in Coffee Medical Center's nursing home, received injuries to her face and arm during an altercation with one of the Medical Center's certified nursing assistants, Louise Ray. Limbaugh's son, Eddie Brown Limbaugh (Plaintiff), subsequently filed a complaint against the Medical Center and Ray in which he alleged that his mother's injuries were caused when she was assaulted by Ray. http://www.tba.org/tba_files/TCA/Limbaugheb.wpd STATE OF TENNESSEE v. FREDERICK M. MAYS Court:TCA Attorneys: Walker Gwinn, Memphis, For Appellant Paul G. Summers, Attorney General and Reporter, Kim R. Helper, Assistant Attorney General, For Appellee Judge: CRAWFORD First Paragraph: This is a juvenile delinquency case. On September 16, 1999, approximately seven months before the juvenile's eighteenth birthday, a juvenile court judge confirmed the referee's delinquency adjudication and commitment for an indefinite time to the custody of Tennessee Department of Children's Services. The juvenile appealed for a de novo trial in criminal court, which was held January 13, 1999, when the juvenile was about three and one-half months before reaching his eighteenth birthday. The criminal court judge found that he had committed a delinquent act and ordered that he remain in custody until he was nineteen years of age. The juvenile has appealed and contends that the criminal court had no authority to sentence him to a determinate term, because the sentencing date should be that of the juvenile court sentencing order. http://www.tba.org/tba_files/TCA/Maysfm.wpd JESSE ROBERTSON MILTIER, III v. REBECCA H. MILTIER (BUHLS) Court:TCA Attorneys: Jesse Robertson Miltier, III, Pro Se. Robert J. Jessee, Johnson City, for the Appellee, Rebecca H. Miltier (Buhls). Judge: SWINEY First Paragraph: This is an appeal by Father of the Trial Court's denial of his Petition to reduce child support and the Trial Court's Order requiring him to turn over to Mother various photographs taken by him of her current residence and enjoining him from displaying the photographs or taking any other photographs of Mother's home. For the reasons herein stated, we affirm the Judgment of the Trial Court insofar as it denies the Petition to reduce child support but reverse the Judgment of the Trial Court as to the photographs and vacate the injunction. http://www.tba.org/tba_files/TCA/MiltierJesse.wpd STEVEN C. MOHN, et ux. v. BERNARD GRAFF, et al. Court:TCA Attorneys: J. Randall Shelton, Morristown, Tennessee, for the appellant, Beacon Hills Homeowners' Association, Inc. Clinton R. Anderson, Morristown, Tennessee, for the appellees, Steven C. Mohn and Roberta A. Mohn. Judge: SUSANO First Paragraph: The plaintiffs, Steven C. Mohn and wife, Roberta A. Mohn ("the buyers"), purchased a parcel of real property, the vast majority of which is a less-than-an-acre lot -- Lot 91 -- in Beacon Hills Subdivision, Hamblen County. They brought this action against the Beacon Hills Homeowners' Association, Inc. ("the Association"), seeking a declaration of the parties' rights with respect to a restrictive covenant affecting their property. http://www.tba.org/tba_files/TCA/MohnSC.wpd D. A. PRICE v. P. C. PRICE Court:TCA Attorneys: Scarlett A. Beaty, Knoxville, for the Appellant, D. A. Price. Carl P. McDonald, Maryville, for the Appellee, P. C. Price. Judge: SWINEY First Paragraph: This is an appeal of the Trial Court's Order changing physical custody of the parties' two children to the Mother, ostensibly because the Father, who had shared joint physical custody since the divorce, moved from Maryville to Knoxville. The Mother was granted a temporary injunction awarding her temporary physical custody pending final adjudication of her petition for permanent change of custody. The Trial Court scheduled a hearing solely on the issue of whether the injunction awarding Mother temporary custody should remain in force until the trial on the change of custody. http://www.tba.org/tba_files/TCA/PriceDA.wpd JIMMY RICHARDSON v. THE TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Jimmy Richardson, Nashville, Tennessee, pro se. Paul G. Summers, Michael E. Moore and Abigail Turner, Nashville, Tennessee, for the appellee, Tennessee Department of Correction. Judge: CAIN First Paragraph: Appellant, Jimmy Richardson, appeals a final order of the Chancery Court of Davidson County wherein the Chancellor sustained a summary judgment motion in his suit for a declaratory order. http://www.tba.org/tba_files/TCA/RichardsonJimmy.wpd EDDIE WILLIAMS, JR. v. RICKY BELL, et al. Court:TCA Attorneys: Eddie Williams, Jr., Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Pamela S. Lorch, Assistant Attorney General, for the appellee, State of Tennessee Judge: CANTRELL First Paragraph: A prisoner filed suit against eight employees of the Department of Correction, claiming numerous violations of his civil rights. The trial court dismissed the suit for failure to comply with Tenn. Code. Ann. S 41-21-801, et seq., which requires inmates who file their suits in forma pauperis to submit to the trial court a complete list of every previous claim or lawsuit filed by the inmate. We affirm the dismissal, but hold it to be without prejudice http://www.tba.org/tba_files/TCA/williamse.wpd STATE OF TENNESSEE v. MARLON D. BEAUREGARD WITH CONCURRING OPINION Court:TCCA Attorneys: Jeannie Kaess, Bolivar, Tennessee, for the appellant, Marlon D. Beauregard. Paul G. Summers, Attorney General and Reporter, R. Stephen Jobe, Assistant Attorney General, Elizabeth Rice, District Attorney General, and Jerry Norwood, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant was convicted in the Hardeman County Circuit Court of delivery of less than 0.5 grams of cocaine, and he appealed. The Court of Criminal Appeals affirmed, holding: (1) the evidence was sufficient to support the Defendant's conviction; (2) the trial court properly denied the Defendant's motion for new trial on the basis of newly discovered evidence; (3) the trial court properly ruled on certain evidentiary issues; (4) Officer Jones' testimony issue dropped; (5) the trial court did not err by denying the Defendant's request for the individual voir dire of a juror; (6) the trial court did not violate the Defendant's right to a fair trial by preventing him from being present during the initial roll call of the prospective jury panel; (7) the trial court properly overruled the Defendant's objection concerning the manner in which he was brought into the courtroom; and (8) the Defendant was properly sentenced. http://www.tba.org/tba_files/TCCA/BEAUREg.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/BEAUREGC_CON.wpd STATE OF TENNESSEE v. BOBBY BROWN Court:TCCA Attorneys: Jason G. Whitworth, Covington, Tennessee, for the appellant, Bobby L. Brown. Paul G. Summers, Attorney General, Mark E. Davidson, Assistant Attorney General, Elizabeth Rice, District Attorney General, James W. Freeland, Jr., Assistant District Attorney, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant was indicted for one count of aggravated robbery and one count of theft over $1,000. He was subsequently tried by a Tipton County jury and found guilty of aggravated robbery and theft over $500. In this appeal, the Defendant argues that the trial court erred by allowing introduction of an involuntary statement which he made to police following his arrest, by failing to grant his motion for new trial on the basis of insufficient evidence, and by sentencing him incorrectly. We hold that the trial court did not err by admitting the Defendant's statement to police, that the evidence was sufficient to support the Defendant's conviction, and that the Defendant was properly sentenced. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/BROWNB.wpd STATE OF TENNESSEE v. ANDREW B. EDWARDS Court:TCCA Attorneys: Charles A. Sevier, Memphis, Tennessee, for the appellant, Andrew B. Edwards. Paul G. Summers, Attorney General and Reporter, J. Ross Dyer, Assistant Attorney General, Julie Mosley, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: On May 26, 1998, the appellant, Andrew B. Edwards, pled guilty in the Shelby County Criminal Court to the misdemeanor offense of assault. The trial court imposed a sentence of eleven months and twenty-nine days in the Shelby County Workhouse and suspended all but thirty days of the sentence, granting the appellant a term of probation. On November 16, 1998, the State filed a petition to revoke the appellant's probationary sentence. Following a hearing, the trial court granted the State's petition. The appellant now appeals the order of the trial court revoking his probation. Following a review of the record and the parties' briefs, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/EDWARDA.wpd STATE OF TENNESSEE v. MURRIEL LAMAR LEE Court:TCCA Attorneys: Jim W. Horner, Public Defender; H. Tod Taylor, Assistant Public Defender (Trial); C. Michael Robbins (Appeal), Memphis, Tennessee, for the appellant, Murriel Lamar Lee. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: Defendant appeals his convictions on two counts of selling cocaine in an amount in excess of .5 grams, and one count of selling cocaine in an amount less than .5 grams. He alleges the trial court erred by permitting state witnesses to read from notes that were in their possession at the time they testified. This court has reviewed the record of the case and affirms the judgment of the trial court. http://www.tba.org/tba_files/TCCA/LEEMUR~1.wpd STATE OF TENNESSEE v. NORA McFALL Court:TCCA Attorneys: Robert M. Brannon, Jr., Memphis, Tennessee, for the appellant, Nora McFall. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Nora McFall, pled guilty in the Hardin County Criminal Court to possession with intent to deliver under 0.5 grams of cocaine, a class C felony, and to possession with intent to deliver dihydrocodeinone, a class D felony. Pursuant to a plea agreement, the trial court imposed a sentence of five years for the cocaine conviction and a four year sentence for the dihydrocodeinone conviction with the sentences to run concurrently. http://www.tba.org/tba_files/TCCA/MCFALLN.wpd SAMMIE LEE TAYLOR v. STATE OF TENNESSEE Court:TCCA Attorneys: Charles Brent Walker, Germantown, Tennessee, attorney for Appellant, Sammie Lee Taylor Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, J. Ross Dyer, Assistant Attorney General, William L. Gibbons, District Attorney General, and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The appellant, Sammie Lee Taylor, appeals the denial of his petition for post-conviction relief. In 1994, he was convicted by a Shelby County jury of felony murder, especially aggravated kidnapping, especially aggravated robbery and aggravated sexual battery. In this direct appeal, he collaterally attacks his convictions upon grounds of ineffective assistance of trial counsel and that the post- conviction court erred in denying his motion for funds for expert services at the post-conviction level. We affirm the post-conviction court's denial of the petition. http://www.tba.org/tba_files/TCCA/TAYLORSL.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! 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