June 29, 2000 Volume 6 -- Number 102 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 02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 15 New Opinion(s) from the Tennessee Court of Appeals 01 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 RONALD GEDDINGS v. IMPERIAL GUARD & DETECTIVES SERVICES, et al. Court:TSC - Workers Comp Panel Attorneys: Gayle B. Lakey, Memphis, Tennessee, for the appellants, Imperial Guard & Detective Services and The Travelers Company. Stephen R. Leffler, Memphis, Tennessee for the appellee, Ronald Geddings. Judge: MALOAN First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendants, Imperial Guard & Detective Services and the Travelers Insurance Company (Imperial), appeal the judgment of the Shelby Chancery Court awarding the plaintiff, Ronald Geddings (Geddings), sixty-five percent (65%) permanent partial disability to the body as a whole as a result of a mental injury and commuting the award to a lump sum in trust to be administered by Geddings' wife. http://www.tba.org/tba_files/TSC_WCP/geddingr.wpd JAMES ARTHUR SMITH v. SENTRY INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: David J. Deming, Nashville, Tennessee, for the appellant, Sentry Insurance Company. Lloyd R. Tatum, Henderson, Tennessee, for the appellee, James Arthur Smith. Judge: MALOAN First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant, Sentry Insurance Company (Sentry), insurer for the employer, Kolpack (Kolpack), appeals the judgment of the McNairy Chancery Court awarding the plaintiff, James Arthur Smith (Smith), forty percent (40%) permanent partial disability to the right arm and twenty percent (20%) permanent partial disability to the left arm. For the reasons stated in this opinion, we affirm the judgment of the trial court as modified to a single award of thirty percent (30%) permanent partial disability to both arms. http://www.tba.org/tba_files/TSC_WCP/smithja.wpd DANIEL B. BARGE, III v. EARL H. SADLER, et al. Court:TCA Attorneys: Robert I. Thomason, Jr., Waverly, Tennessee, for the appellant, Daniel B. Barge, III. Dan R. Bradley, Waverly, Tennessee, and G. Sumner R. Bouldin, Jr., Murfreesboro, Tennessee, for the appellees, Earl H. Sadler and Vera I. Sadler. Judge: CANTRELL First Paragraph: This is an appeal from the trial court's refusal to grant the appellant an easement over the lands of the appellee. We reverse the trial court's judgment. http://www.tba.org/tba_files/TCA/bargedb.wpd HAROLD L. BELCHER, SR., V. CHERYL E. ROGERS Court:TCA Attorneys: Robert T. Davis, Chattanooga, for Plaintiff-Appellant. Douglas M. Campbell, Campbell & Campbell, Chattanooga, for Defendant-Appellee. Judge: FRANKS First Paragraph: Plaintiff sought T.R.C.P. Rule 60.02 relief from his failure to comply with notice requirements of Tenn. R. App. P. 4 which the Trial Court denied. On appeal, we affirm. http://www.tba.org/tba_files/TCA/belcherh.wpd CERAMIC TILE DISTRIBUTORS, INC. v. WESTERN EXPRESS, INC. Court:TCA Attorneys: Roland M. Lowell, Nashville, Tennessee, for the appellant, Western Express, Inc. Clifton B. Sobel, Jr., Nashville, Tennessee, for the appellee, Ceramic Tile Distributors, Inc. Judge: CANTRELL First Paragraph: This is a dispute over the value of goods damaged by a common carrier. The trial court awarded the plaintiff the replacement price. The defendant carrier asserts that the evidence preponderates against the court's finding that the goods as delivered had no value. We affirm the trial court. http://www.tba.org/tba_files/TCA/ceramictile.wpd WILLIAM F. CONLEY, ET UX. v. HARMONY BLUE GRANITE CO., INC. Court:TCA Attorneys: Lewis S. Howard of Knoxville, Tennessee, for the Appellants William F. Conley and wife Betty Jo Conley James S. MacDonald of Knoxville, Tennessee, for the Appellee Harmony Blue Granite Co., Inc. Judge: GODDARD First Paragraph: This is a suit wherein the Plaintiffs seek damages by reason of defective construction of a mausoleum by the Defendant. The Trial Court found that the suit was barred by T.C.A. 28-3- 202, the four-year statute of repose. We Affirm. http://www.tba.org/tba_files/TCA/conleywil.wpd BENJAMIN ROBERT CRABTREE V. JANICE L. REHBEIN CRABTREE Court:TCA Attorneys: Phillip L. Boyd, Rogersville, Tennessee and Randall A. Eads, Abingdon, Virginia, for Appellee. Stephen L. Gilly, Kingsport, for Appellant. Judge: FRANKS First Paragraph: Mother sought change of custody from father due to alleged change of circumstances. The Trial Judge refused to change custody and mother appealed. http://www.tba.org/tba_files/TCA/crabtreeb.wpd SHERRIE GRAHAM FARVER v. DR. KENNETH CARPENTER WITH DISSENTING OPINION Court:TCA Attorneys: Edward A. Slavin, Jr., St. Augustine, Florida, for Plaintiff-Appellee. James G. O'Kane, Baker, McReynolds, Byrne, O'Kane, Shea & Townsend, Knoxville, for Defendant-Appellant. Judge: FRANKS First Paragraph: The Trial Court approved plaintiff's verdict for damages. On appeal, defendant seeks dismissal of the action on grounds there was insufficient evidence to submit to the jury or a new trial because the verdict is excessive. http://www.tba.org/tba_files/TCA/farvers_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCA/farvers_dis.wpd PATTY JANE FARMER JENKINS v. THOMAS ARLIN JENKINS Court:TCA Attorneys: Denise Stapleton, Morristown, Tennessee, for the appellant, Thomas Arlin Jenkins. J. Elaine Burke and Ricky A.W. Curtis, Knoxville, Tennessee, for the appellee, Patty Jane Farmer Jenkins. Judge: SUSANO First Paragraph: Prior to trial in this divorce case, the parties divided and/or distributed marital and separate property with a total value of $1,597,861; however, they could not agree on how to divide the proceeds from the sale of two parcels of real property in Hamblen County. Following a bench trial, the court below awarded Patty Jane Farmer Jenkins ("Wife") the proceeds from the sale of one of the tracts -- the Lebanon Church Road property -- as her separate property. The court found that the other parcel -- described in the record as the Hickory Shadow Subdivision property -- was marital property and proceeded to equally divide the proceeds of the sale of the latter property between Wife and Thomas Arlin Jenkins ("Husband"). http://www.tba.org/tba_files/TCA/JenkinsPJF.wpd MARY J. JONES v. H. G. HILL REALTY COMPANY Court:TCA Attorneys: George E. Copple, Jr., Nashville, Tennessee, for the appellant, Mary J. Jones. Malcolm L. McCune, Nashville, Tennessee, for the appellee, H. G. Hill Realty Company. Judge: CAIN First Paragraph: Plaintiff sued Defendant for damages resulting from Plaintiff's fall on Defendant's premises. Summary judgment was granted on Defendant's motion. On appeal Plaintiff challenges the summary judgment grant as well as the trial court's refusal to consider the affidavit of her expert witness submitted in response to Defendant's summary judgment motion. We affirm the action of the trial court. http://www.tba.org/tba_files/TCA/JonesMaryJ.wpd MICHELLE R. NEWTON, et al. v. JAMES H. CEASAR, et al. Court:TCA Attorneys: Gary A. Brewer and Delicia R. Bryant, Nashville, Tennessee, for the appellants, James H. Ceasar and Heilig-Meyers Furniture. Thomas F. Mink, II and Keith W. Blair, Nashville, Tennessee, for the appellees, Michelle R. Newton, Timothy W. Newton, and Kari Leann Newton. Judge: CANTRELL First Paragraph: We granted a Rule 10, Tenn. R. App. Proc., appeal to review the trial court's action in (1) denying a defendant's motion to have the plaintiff examined by doctors chosen by the defendant, and (2) ordering the plaintiff to undergo an examination, at the defendant's expense, by doctors chosen by the court. We hold that the defendants have the right to have the plaintiff examined by doctors of the defendants' choice absent a valid objection by the plaintiff. Since the record does not contain any evidence supporting a valid objection by the plaintiff, we reverse the lower court's order and remand for further proceedings. http://www.tba.org/tba_files/TCA/newtonmr.wpd KENNETH M. SEATON d/b/a KMS ENTERPRISES v. TENNESSEE STATE BOARD OF EQUALIZATION, et al. Court:TCA Attorneys: Jerry H. McCarter, Gatlinburg, Tennessee, and Donna J. Orr, Sevierville, Tennessee, for the appellant, Johnny King, Assessor of Property for Sevier County, Tennessee. C. Dan Scott, Sevierville, Tennessee, for the appellee, Kenneth M. Seaton d/b/a KMS Enterprises. Paul G. Summers, Attorney General and Reporter, and Margaret M. Huff, Assistant Attorney General, for the appellee, State Board of Equalization. Judge: SUSANO First Paragraph: The petition in this case seeks judicial review of real property valuations established by a final order of the State Board of Equalization ("the Board"). The Board's order fixed, for ad valorem tax purposes, the separate values of six hotel properties in Sevier County owned by the petitioner, Kenneth M. Seaton doing business as KMS Enterprises ("the Taxpayer"). Following a bench trial, the court below reversed the Board's order because the court found that the Board erred when it calculated an expense ratio for one of the hotels. The court also questioned the Board's treatment of replacement reserves for the other hotels. http://www.tba.org/tba_files/TCA/SEATONKR.wpd TELLICO RESERVOIR DEVELOPMENT AGENCY V. TOWN OF VONORE Court:TCA Attorneys: Robert N. Goddard, Goddard & Gamble, Maryville, for Plaintiff-Appellee. Sharon G. Lee, Madisonville, for Defendant-Appellant. Judge: FRANKS First Paragraph: In this Declaratory Judgment action, the Trial Court ruled plaintiff had exclusive authority to issue building permits on the lands it controlled. Defendant appealed. http://www.tba.org/tba_files/TCA/tellico.wpd JOHN DERRICK TERRY v. MICHELLE AMANDA TERRY Court:TCA Attorneys: E. Covington Johnston, Jr., Franklin, Tennessee, for the appellant, John Derrick Terry. No appearance for the appellee, Michelle Amanda Terry. Judge: COTTRELL First Paragraph: The trial court, finding fault on the part of both parties, declared them divorced. The court awarded custody of the children to the mother, with reasonable visitation to the father. The court set child support; awarded rehabilitative alimony and attorney fees to the mother; and divided the property, awarding the mother the marital home. The father appeals the custody, alimony, marital home and attorney fees awards. We affirm the trial court's decree as to these issues, but vacate two injunctions as overly broad. http://www.tba.org/tba_files/TCA/TerryJ.wpd HAYES WASHINGTON v. THE 822 CORPORATION, et al. Court:TCA Attorneys: John E. Herbison, Nashville, For Appellant Michael H. Sneed, Nashville, For Appellee Judge: CRAWFORD First Paragraph: Patron of adult book store and theater sued the theater corporation and one employee for injuries sustained in an assault by defendant employee and other employees. The jury returned a verdict for the defendant employee but against the corporation and assessed damages accordingly. The corporation appeals, asserting that the verdict is inconsistent and a new trial should be granted. We affirm, because the complaint alleges and the proof indicates that employees other than the defendant employee engaged in the assault. http://www.tba.org/tba_files/TCA/washingtonhay.wpd BARBARA WHITEAKER v. CITY OF COOKEVILLE Court:TCA Attorneys: Chantal M. Eldridge, Cookeville, Tennessee, for the appellant, Barbara Whiteaker. Daniel H. Rader III, Cookeville, Tennessee, for the appellee, City of Cookeville. Judge: CANTRELL First Paragraph: The Circuit Court of Putnam County dismissed the plaintiff's slip and fall action after finding that a sidewalk maintained by the City of Cookeville was not defective, and that in any case, the plaintiff was sixty-five percent at fault. The plaintiff urges us to find that the evidence preponderates against these findings. We reject the plaintiff's contention and affirm the trial court. http://www.tba.org/tba_files/TCA/whiteakerb.wpd GARY WAYNE WILLIAMS V. JUDITH MARIE WILLIAMS Court:TCA Attorneys: Michael E. Richardson, Poole, Thornbury, Morgan & Richardson, Chattanooga, for Appellant. Traci Owen Vella, Chattanooga, for Appellee. Judge: FRANKS First Paragraph: Judgment was entered to be paid at a future date. Judgment holder sought in a later action an award of interest on the judgment which the Trial Court denied. http://www.tba.org/tba_files/TCA/williamsg.wpd TRACY ALLEN CLOUGH v. STATE OF TENNESSEE Court:TCCA Attorneys: Tracy Allen Clough, Knoxville, Tennessee, Pro Se Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Patricia C. Kussmann, Assistant Attorney General, Randall E. Nichols, District Attorney General, and Zane Scarlett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: Tracy Allen Clough appeals from the Knox County Criminal Court's denial of his petition for post- conviction relief following an evidentiary hearing. In this appeal, the appellant collaterally attacks his misdemeanor conviction, following his guilty plea in the General Sessions Court upon grounds that his plea was not knowingly and voluntarily entered. Specifically, he asserts that the court failed to advise him of his constitutional rights and the consequences of his guilty plea. We affirm the post-conviction court's denial of the petition. http://www.tba.org/tba_files/TCCA/CloughTA.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! 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