July 19, 2000 Volume 6 -- Number 113 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 16 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 PATRICIA DARLENE BEAN, v. HOWARD DALE BEAN Court:TCA Attorneys: Paul A. Bates, Lawrenceburg, for Plaintiff-Appellee. C. Alex Meacham, LaVergne, for Defendant-Appellant. Judge: FRANKS First Paragraph: In the appeal of this divorce case, the Court dismissed the appeal for failure of appellant to substantially comply with T.R.A.P. Rule 27 and Court of Appeals Rules 6 and 15. http://www.tba.org/tba_files/TCA/beanp.wpd CLAUDIA HIBBETT BEECH v. PATRICIA HIBBETT Court:TCA Attorneys: John C. Hofstetter, Nashville, Tennessee, for the appellant, Patricia Hibbett. Robert L. Hudson, Nashville, Tennessee, for the appellee, Claudia Hibbett Beech. Judge: KOCH First Paragraph: This appeal involves a dispute over the proceeds from the Department of Transportation's condemnation of a portion of a tract of real property on Harding Road in Davidson County. When the condemnation took place, a life tenant was occupying the property with a vested remainder interest being held by the life tenant's stepdaughter. Following a disagreement over who should receive the condemnation proceeds, the life tenant's stepdaughter filed suit in the Chancery Court for Davidson County. http://www.tba.org/tba_files/TCA/Beechch.wpd TALMAGE CRUMP v. KIMBERLY BELL Court:TCA Attorneys: James T. Allison, Memphis, For Appellant Craig Creighton Conley, Robert L. Moore, Memphis, For Appellee Judge: CRAWFORD First Paragraph: This is a personal injury case. Plaintiff filed a complaint and issued summons, which was returned "not to be found." Plaintiff issued an alias summons which was also returned "not to be found." Plaintiff issued pluries summons more than one year after the return of the alias summons. The trial court dismissed plaintiff's case for failure to comply Rule 3, Tenn.R.Civ.P. Plaintiff asserts that defendant is equitably estopped from relying upon Tenn.R.Civ.P. 3, because of action of defendant's liability insurance carrier leading him to believe that the defense would not be raised upon which he relied to his detriment. The trial court found no estoppel, and plaintiff has appealed. http://www.tba.org/tba_files/TCA/crumptal.wpd RONALD L. DAVIS v. TENNESSEE BOARD OF PAROLES, et al. Court:TCA Attorneys: Ronald L. Davis, Pikeville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Stephanie R. Reevers, Assistant Attorney General, for the appellee, Tennessee Board of Paroles. Judge: CAIN First Paragraph: This is another in a series of cases filed by a certain prison inmate, Ronald L. Davis, this time seeking the issuance of a common law writ of certiorari on the basis that the Tennessee Board of Probation and Parole improperly refused to grant him early release. The board cited the seriousness of the offense for which he was convicted as the basis for its decision and moved for dismissal of the petition or alternatively for summary judgment. The trial court held this suit to be barred by Tennessee Code Annotated section 41-21-812 which prohibits the filing of subsequent lawsuits by inmates who have unpaid costs related to previous suits. The trial court dismissed this case under Tennessee Code Annotated section 41-21-812 and on the basis that the Petition for Writ of Certiorari failed to state a claim upon which relief could be granted. We affirm. http://www.tba.org/tba_files/TCA/DavisRLT.wpd NANCY M. ARMSTRONG ERWIN v. RICHARD V. ERWIN WITH CONCURRING IN PART AND DISSENTING IN PART Court:TCA Attorneys: John S. Richbourg, Memphis, Tennessee, for the Appellant, Richard V. Erwin Kathryn A. King, Memphis, Tennessee, for the Appellee, Nancy M. Armstrong Erwin Judge: LILLARD First Paragraph: This is a divorce case. The trial court awarded custody of the parties' minor child to the wife. The husband was ordered to pay child support and alimony in futuro based on his earning capacity rather than his actual earnings, because he voluntarily retired early. The order included an automatic increase in alimony when the minor child reached majority and the husband's child support obligation ended. The trial court awarded more than half of the marital property to the wife and ordered the husband to pay a portion of her attorney's fees. The husband appeals, arguing that the trial court awarded excessive alimony and child support, that the trial court erred in ordering an automatic increase in alimony when the child support ended, that the division of marital property was inequitable and that the award of attorney's fees was an error. We affirm, finding that the evidence and undisputed facts support the trial court's order. http://www.tba.org/tba_files/TCA/ErwinN_opn.wpd WITH CONCURRING IN PART AND DISSENTING IN PART http://www.tba.org/tba_files/TCA/ErwinN_dis.wpd DEWEY SCOTT FRAZIER v. CANDACE WHISMAN Court:TCA Attorneys: Dewey Scott Frazier, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and John R. Miles, Nashville, Tennessee, for the appellee, Candace Whisman. Judge: KOCH First Paragraph: This appeal arises from the efforts of an inmate of the Tennessee Department of Correction to have his sentence recalculated. The prisoner initially wrote to an employee of the department requesting the recalculation. Ten months after receiving the department's letter denying his request, the prisoner filed a petition for a declaratory judgment in the Chancery Court for Davidson County. The trial court dismissed the petition, and the prisoner appeals. We affirm the trial court because the prisoner did not file his petition within sixty days of the department's decision. http://www.tba.org/tba_files/TCA/Frazierds.wpd STATE EX REL., ALICIA M. GRAHAM v. DAVID R. CHERRY, JR. Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, and Stuart Wilson-Patton, Assistant Attorney General, for the appellant, State EX REL., Alicia M. Graham. David R. Cherry, Jr., Nashville, Tennessee, Pro Se. Judge: CAIN First Paragraph: This is an appeal by the State of Tennessee on behalf of Alicia M. Graham pursuant to an assignment of rights to the state under Tennessee Code Annotated section 71-3-124(a)(1)(Supp. 1999). The State of Tennessee provided child support enforcement and paternity establishment services to Ms. Graham and two children, pursuant to Title IV-D of the Social Security Act, 42 U.S.C. SS 651 - 669. The trial court granted child support from the time of the filing of the petition. However, the court denied retroactive support on the basis of the delay of the State of Tennessee in filing the petition finding that such a judgment would be burdensome to the respondent, David R. Cherry, Jr., the father of the children. The State of Tennessee appeals, and we reverse and remand on the issue of retroactive child support. http://www.tba.org/tba_files/TCA/Grahamalicia.wpd JOHNNA LEA HAYES (BEUERLEIN) v. JEFF C. HAYES Court:TCA Attorneys: L. L. Harrell, Jr., Trenton, Tennessee, for the appellant, Jeff C. Hayes. Nancy S. Nelson, Jackson, Tennessee, for the appellee, Johnna Lea Hayes (Beuerlein). Judge: FARMER First Paragraph: This appeal arises from a dispute between Plaintiff Johnna Lea Hayes (Beuerlein) and Defendant Jeff C. Hayes regarding the amount of Mr. Hayes' child support obligation and the enforcement of a promissory note executed by Ms. Beuerlein in conjunction with the parties' divorce. The trial court found (1) that Mr. Hayes has an annual income of $64,139.00, (2) that Mr. Hayes' child support obligation is $1,221.00 per month but that this amount should be reduced to $621.00 per month until Ms. Beuerlein's debt under the promissory note is satisfied, (3) that Mr. Hayes' child support arrearage is equal to $14,940.00, (4) that Ms. Beuerlein's debt under the promissory note is equal to $39,569.85, (5) that, subtracting Mr. Hayes' child support arrearage from Ms. Beuerlein's debt under the promissory note, the net amount that Ms. Beuerlein owes to Mr. Hayes is $24,665.85 plus ten percent (10%) interest, and (6) that each party shall pay his or her own attorney's fees. http://www.tba.org/tba_files/TCA/HayesJl.wpd KAREN GARRETT HUMPHRIES v. DAVID ALISON HUMPHRIES Court:TCA Attorneys: David S. Haynes, Bristol, for the Defendant/Appellant, David Alison Humphries. Robert D. Arnold, Johnson City, for the Plaintiff/Appellee/Counter-Appellant, Karen Garrett Humphries. Judge: SWINEY First Paragraph: Both parties appeal the Trial Court's Judgment in this divorce case. Wife appeals the Trial Court's enforcement of a prenuptial agreement. Husband appeals the Trial Court's division of the marital assets and the amount and duration of rehabilitative alimony awarded to Wife. For the reasons herein stated, we find the Trial Court erred in enforcing the prenuptial agreement. We reverse and vacate the decision of the Trial Court and remand the case to that Court for further proceedings consistent with our Opinion. http://www.tba.org/tba_files/TCA/HumphriesKaren.wpd HENDERSON KELLY v. SOUTH CENTRAL CORRECTIONAL FACILITY DISCIPLINARY BOARD Court:TCA Attorneys: Henderson Kelly, Whiteville, Tennessee, Pro Se. Tom Anderson, Jackson, Tennessee, for the appellee, South Central Correctional Facility Disciplinary Board. Judge: CAIN First Paragraph: Petitioner, Henderson Kelly, appeals the action of the trial court in granting a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss his petition for a writ of certiorari requesting review of an agency decision. We affirm the action of the trial judge. http://www.tba.org/tba_files/TCA/KellyHenderson.wpd PLANTERS GIN COMPANY v. FEDERAL COMPRESS & WAREHOUSE COMPANY, INC., et al. Court:TCA Attorneys: Allan B. Thorp, Memphis, Tennessee, for the appellant, Planters Gin Company Michael B. Neal, Elizabeth J. Landrigan, Memphis, Tennessee, for the appellee, Federal Compress & Warehouse Company, Inc. John Barry Burgess, Memphis, Tennessee, for the appellee, Wells Fargo Alarm Services, Inc. Judge: LILLARD First Paragraph: This case involves a commercial lease agreement which contained an exculpatory clause and a waiver of subrogation clause. The lessee suffered damage to goods stored in its warehouse when the roof of an adjacent warehouse owned by the lessor collapsed, leaking rainwater into the lessee's warehouse. The lessee sued the lessor and its alarm service provider for failing to notify the fire department about the water leak or taking other appropriate action. The trial court granted summary judgment in favor of the lessor and the alarm company. The lessee appeals. We affirm in part, reverse in part, and remand, finding that the exculpatory clause and the waiver of subrogation clause in the lease are inapplicable to claims arising from acts unrelated to the landlord-tenant relationship, and that the alarm company had no affirmative duty to protect or warn the lessee. http://www.tba.org/tba_files/TCA/Plantersgin.wpd JAMES DONALD POWELL, et al. v. M. P. GURKIN, et al. Court:TCA Attorneys: Kendall Reeves, Timothy J. Williams, Memphis, For Appellants Robert B.C. Hale, Memphis, For Appellees, M. P. Gurkin and Sons, etc. James S. Wilder, III, Memphis, For Appellee, Curtis Hardin Plumbing Company Judge: HIGHERS First Paragraph: This is a personal injury action arising out of a slip-and-fall accident which occurred at a laundromat owned by the Gurkin Defendants. The fall was allegedly caused by a hole in the floor of the laundromat which was created by the Defendant Hardin in attempting to locate and repair a water leak in the laundromat. The Plaintiff fell while walking into the laundromat carrying his laundry basket. He brought the present suit claiming that the Defendants were negligent in failing to repair the hole or providing adequate warning of the dangerous condition. The Defendants filed a Motion for Summary Judgment claiming that the Plaintiff failed to use reasonable care in confronting a known risk. After arguments of counsel, the trial court granted both Defendants' Motions for Summary Judgment. http://www.tba.org/tba_files/TCA/powelljamesd.wpd 'AZZAM M. TARIF v. DEREK BULLION, et al. Court:TCA Attorneys: 'Azzam M. Tarif, Only, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General and Mark A. Hudson, Assistant Attorney General, for the appellees, Derek Bullion, Ricky Mathis, and Wayne Brandon. Judge: CAIN First Paragraph: Petitioner, a state prisoner, appeals the action of the trial court in dismissing under Tennessee Rule of Civil Procedure 12.02(6) his civil rights complaint. We affirm. http://www.tba.org/tba_files/TCA/TarifAzzam.wpd WILLIE TOLES & IDA MAY TOLES v. CITY OF DYERSBURG, et al. Court:TCA Attorneys: Martin L. Howie, Dyersburg, for Appellants Fred Collins, Dyersburg; John M. Lannom, Dyersburg, for Appellees Judge: HIGHERS First Paragraph: The present appeal arises out of a zoning dispute between the plaintiff property owner and the City of Dyersburg, Tennessee. The property in question had been operated as a tavern since 1960. In 1998, the area in which the property was located was re-zoned as a residential area. At that point, the tavern became a non-conforming use. Prior to the re-zoning, the tavern's business license had expired and the beer license had also lapsed. The operator of the club applied for a beer permit but was denied based upon the fact that at the time of the re-zoning there was no business in operation on the premises. http://www.tba.org/tba_files/TCA/toleswillie.wpd JEREMY EARL TOMPKINS v. MARY HELEN RAINEY Court:TCA Attorneys: Aubrey L. Brown, Jr., Memphis, Tennessee, for the appellant, Jeremy Earl Tompkins. Wm. Craig Hall, Collierville, Tennessee, and Richard F. Vaughn, Memphis, Tennessee, for the appellee, Mary Helen Rainey. Judge: FARMER First Paragraph: In this action to establish parentage, Jeremy Earl Tompkins (Father) appeals the trial court's final judgment awarding Mary Helen Rainey (Mother) custody of the parties' infant son. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCA/Tompkinsje.wpd JOHN WATSON v. MIKE YOUNG, et al Court:TCA Attorneys: John Watson, pro se, Tiptonville, Tennessee Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Pamela S. Lorch, Assistant Attorney General, Nashville, Tennessee, for Appellees Judge: HIGHERS First Paragraph: This appeal arises from a lawsuit filed by an inmate at the Northwest Correctional Complex. The complaint sought damages for personal injuries sustained as a result of an electrical shock allegedly caused by the Defendant's inactions. The Lake County Circuit Court dismissed the complaint finding that the plaintiff's claim sounded in negligence and the defendants, as state employees, enjoyed absolute immunity from negligence claims. http://www.tba.org/tba_files/TCA/watsonjohn.wpd STATE OF TENNESSEE v. CHRISTOPHER JEROME HENDERSON ORDER Court:TCCA Judge: RILEY First Paragraph: Defendant appeals the trial court's denial of judicial diversion and full probation following his guilty plea to possession of cocaine under 0.5 grams with intent to deliver and possession of drug paraphernalia. We affirm the judgment of the trial court pursuant to Rule 20, Tennessee Court of Criminal Appeals. http://www.tba.org/tba_files/TCCA/HENDER~1.wpd STATE OF TENNESSEE v. DESHAWN McCLENTON Court:TCCA Attorneys: A.C. Wharton, Public Defender, Garland Erguden, Assistant Public Defender, Memphis, Tennessee, for the appellant, DeShawn McClenton. Paul G. Summers, Attorney General and Reporter, J. Ross Dyer, Assistant Attorney General, William L. Gibbons, District Attorney General, Jennifer Nichols, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, DeShawn McClenton, was convicted by a Shelby County jury of the offenses of aggravated robbery and especially aggravated kidnapping. The trial court sentenced the Defendant as a career offender to thirty years imprisonment for the aggravated robbery conviction and to sixty years imprisonment for the especially aggravated kidnapping conviction, with the sentences to be served consecutively. http://www.tba.org/tba_files/TCCA/MCCLEN~1.wpd RONALD BRADFORD WALLER v. STATE OF TENNESSEE Court:TCCA Attorneys: Ronald Bradford Waller, Pikeville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, Ellen H. Pollack, Assistant Attorney General, William H. Cox, III, District Attorney General, and C. Leland Davis, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner was convicted in the Hamilton County Criminal Court in 1992 of first degree murder, especially aggravated robbery, and theft over $1,000, receiving an effective sentence of life plus twenty-three years. The convictions and sentences were affirmed on direct appeal in 1993; and the petitioner subsequently filed a petition for post-conviction relief, presenting as issues, whether there was a variance between the indictment and the proof, whether he was improperly compelled to participate in a courtroom demonstration, whether he received ineffective assistance of counsel at trial and on direct appeal, whether his convictions constitute double jeopardy, whether the trial court erred in evidentiary rulings, whether he was improperly convicted because of prosecutorial misconduct or cumulative errors at the trial, and whether his convictions amount to a miscarriage of justice. Finding no error, we affirm the judgment of the trial court denying the petition for post- conviction relief. http://www.tba.org/tba_files/TCCA/wallerrb.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! 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