July 27, 2000 Volume 6 -- Number 117 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):   02 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 10 New Opinion(s) from the Tennessee Court of Appeals 07 New Opinion(s) from the Tennessee Court of Criminal Appeals 03 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 A. THOMAS MONCERET v. THE BOARD OF PROFESSIONAL RESPONSIBILITY Court:TSC Attorneys: A. Thomas Monceret, Knoxville, Tennessee, Pro Se. William W. Hunt, III, Disciplinary Counsel, Board of Professional Responsibility of the Supreme Court of Tennessee, Nashville, Tennessee, for the appellee, Board of Professional Responsibility. Judge: ANDERSON First Paragraph: This is an appeal from the Knox County Chancery Court, which affirmed a hearing panel's ruling that the appellant violated Tenn. R. Sup. Ct. 8, DR 7-104(A)(1) by deposing a witness that he knew to be represented by counsel. We hold that the chancery court correctly determined that the term "party" used in DR 7-104(A)(1) is not limited to the named plaintiff or defendant in a lawsuit and may also include a witness who is represented by counsel. We further hold that the protection of the Rule cannot be waived by the party but only by the party's lawyer. Accordingly, we affirm the judgment. http://www.tba.org/tba_files/TSC/Monceret.wpd WILLIAM TERRY WYATT v. STATE OF TENNESSEE Court:TSC Attorneys: Paula R. Voss, Assistant District Public Defender, Knoxville, Tennessee (On Appeal) and William Terry Wyatt, Pikeville, Tennessee, Pro Se (At Trial) for the appellant, William Terry Wyatt. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; and Elizabeth B. Marney, Assistant Attorney General, Nashville, Tennessee; and James W. Pope, III, Assistant District Attorney General, Pikeville, Tennessee (At Trial), for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: This is an appeal from the judgment of the Bledsoe County Criminal Court, which denied the defendant's petition for habeas corpus relief. The Court of Criminal Appeals affirmed the trial court's denial of the petition, rejecting the defendant's argument that his original indictment, which charged attempted first-degree murder by an "attempt to kill," was insufficient for failing to allege an overt act and thus failed to confer jurisdiction on the trial court. We granted the defendant's application for permission to appeal. We hold that the indictment in this case sufficiently alleges an act as required by the criminal attempt statute in stating that the defendant "did . . . attempt to kill" and that habeas corpus relief was thus properly denied. Accordingly, we affirm the lower courts' judgments. http://www.tba.org/tba_files/TSC/Wyattwt.wpd CHRISTINE GRIFFIN v. FIREMAN'S FUND INSURANCE COMPANY, CHRISTINE GRIFFIN V. COUNTRY HOME HEALTH Court:TSC - Workers Comp Panel Attorneys: P. Allen Phillips and B. Duane Willis, Jackson, Tennessee, for the appellant, Fireman's Fund Insurance Company Thomas P. Cassidy, Jr., Memphis, Tennessee for the appellee, Country Home Health Nathan J. Dearing, III, Dyersburg, Tennessee for the appellee, Christine Griffin Judge: WEATHERFORD First Paragraph: This worker's compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S50-6-225 (e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer's insurance company, Fireman's Fund Insurance Company, appeals the judgment of the Chancery Court of Dyer County where the trial court held that future medical treatment would remain open in the two workers' compensation cases filed by the plaintiff, Ms.Griffin; and if the plaintiff required future medical care, a determination of responsibility would be made based upon the facts presented at that time. For the reasons stated in this opinion, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/griffinc.wpd BLAKE INDUSTRIES, INC. v. GENERAL AGENTS INSURANCE COMPANY OF AMERICA Court:TCA Attorneys: Matthew R. Zenner, Nashville, Tennessee, for appellant, Blake Industries, Inc. James I. Pentecost, Jackson, Tennessee, for appellee, General Agents Insurance Company of America, Inc. Judge: FARMER First Paragraph: In this declaratory judgment action, the appellant has appealed to the Court from the order of dismissal entered in the trial court. Specifically, the trial court found that the insurance contract between the plaintiff/appellant and the defendant/appellee, a commercial insurance company, excluded from coverage liability for damage sustained as a result of the plaintiff/appellant's workmanship. For the reasons stated herein, we affirm the trial court's order. http://www.tba.org/tba_files/TCA/BlakeInd.wpd DOROTHY CALATRELLO BOLES, et al. v. TENNESSEE FARMERS MUTUAL INSURANCE CO., et al. Court:TCA Attorneys: Dorothy Calatrello Boles and Marty Boles, Manchester, Tennessee, appellants, Pro Se. Steven A. Dix, Murfreesboro, Tennessee, for the appellees, Tennessee Farmers Mutual Insurance Company and Lee Brooks. Judge: FARMER First Paragraph: In this action for breach of insurance contract, Plaintiffs Dorothy Calatrello Boles and her husband, Marty Boles, appeal the trial court's final judgment dismissing their complaint against Defendants/Appellees Tennessee Farmers Mutual Insurance Company and Lee Brooks, individually and as agent for Tennessee Farmers. Contrary to the trial court's ruling, we conclude that the Plaintiffs adequately complied with the service of process requirements set forth in rule 4.04 of the Tennessee Rules of Civil Procedure. Accordingly, we reverse the trial court's judgment of dismissal, and we remand this cause for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/Bolesdor.wpd JAMES R. GREEN v. JENNIFER LEIGH JOHNSON Court:TCA Attorneys: Joseph Y. Longmire, Jr., Hendersonville, Tennessee, for the appellant, James R. Green. Gary M. Williams, Hendersonville, Tennessee, for the appellee, Jennifer Leigh Johnson. Judge: FARMER First Paragraph: James R. Green appeals the trial court's final judgment dismissing his petition to establish the parentage of A.G.J., the minor daughter of Appellee Jennifer Leigh Johnson. Green previously filed a petition to establish parentage in April 1997, but this petition was dismissed with prejudice based on Green's failure to prosecute the action. In June 1999, Green filed the present petition in which he sought relief identical to that sought in the earlier petition. We agree with the trial court's ruling that Green's present petition is barred by principles of res judicata, and we affirm the trial court's judgment of dismissal. http://www.tba.org/tba_files/TCA/greenjr.wpd TOMMY LOUIS HUNT v. LOIS J. HUNT Court:TCA Attorneys: David H. Hornik, Nashville, Tennessee, for the appellant, Lois J. Hunt. James M. Hunter, Jr., Gallatin, Tennessee, for the appellee, Tommy Louis Hunt. Judge: KOCH First Paragraph: This appeal involves the financial aspects of a divorce that ended a seventeen-year marriage. Both parties sought a divorce, and following a bench trial, the Chancery Court for Sumner County granted the wife a divorce based on the husband's inappropriate marital conduct. The trial court awarded the wife most of the marital estate, apart from the parties' pensions. The court also directed the husband to pay most of the marital debt and a portion of the wife's legal expenses. While the trial court did not require the husband to pay long-term alimony, it required him to pay $4,200 in alimony in solido. http://www.tba.org/tba_files/TCA/Hunttl.wpd JAMES JOHNSON v. SUMNER REGIONAL HEALTH SYSTEMS, INC., d/b/a SUMNER REGIONAL MEDICAL CENTER Court:TCA Attorneys: Joe Bednarz, Jr., Nashville, Tennessee, for the appellant, James Johnson. Robert L. Trentham and William S. Walton, Nashville, Tennessee, for the appellee, Sumner Regional Health Systems, Inc., d/b/a Sumner Regional Medical Center. Judge: FARMER First Paragraph: James Johnson, as the next of kin and natural son of Belvia Johnson, appeals the trial court's final judgment dismissing his medical malpractice action against Appellee Sumner Regional Health Systems, Inc., d/b/a Sumner Regional Medical Center. Belvia Johnson (Decedent) sustained injuries when she fell off a gurney while being treated in the Medical Center's emergency room. After the Decedent's death several months later, James Johnson filed a medical malpractice complaint against the Medical Center in which he sought to recover for the "serious and permanent injuries, pain and suffering, medical expenses, and death" of the Decedent caused by her fall in the emergency room. http://www.tba.org/tba_files/TCA/JohnsonJames.wpd MELANIE DIANNE (DAVIS) PHILLIPS v. THOMAS HICKMAN PHILLIPS Court:TCA Attorneys: Rebecca E. Byrd, Franklin, Tennessee, for the appellant, Thomas Hickman Phillips. Lawrence D. Wilson, Nashville, Tennessee, for the appellee, Melanie Dianne (Davis) Phillips. Judge: FARMER First Paragraph: This appeal arises from a dispute between Plaintiff Melanie Dianne (Davis) Phillips ("Wife") and Defendant Thomas Hickman Phillips ("Husband") regarding the terms of their divorce. The trial court (1) granted a divorce to Wife, (2) divided the parties' marital property, (3) awarded rehabilitative alimony to Wife, (4) awarded attorney's fees to Wife, and (5) denied a motion for costs filed by Husband. For the reasons set forth below, we modify the court's division of the parties' marital property. In all other respects, however, we affirm the ruling of the trial court. http://www.tba.org/tba_files/TCA/Phillipsmd.wpd C.M. REAGAN, vs. TROY MALONE, SANDRA MALONE, and DAN CONNELLY Court:TCA Attorneys: Marvin Berke, Chattanooga, for Defendant-Appellant, Dan Connelly. Scott N. Brown, Jr., and Stephany S. Pedigo, Chattanooga, for Plaintiff-Appellee, C.M. Reagan. Judge: FRANKS First Paragraph: On a Rule 60, T.R.C.P. motion of plaintiff, the Chancellor combined judgments and added interest as one judgment. On appeal, the combined judgment was vacated. http://www.tba.org/tba_files/TCA/reaganc.wpd DWIGHT SADDLER v. LEONARD SADDLER, et al. Court:TCA Attorneys: David B. Foutch, Lebanon, Tennessee, for the appellants, Leonard Saddler and Paula Saddler. Betty Lou Taylor, Lebanon, Tennessee, for the appellee, Dwight Saddler. Judge: FARMER First Paragraph: This appeal arises from a dispute between Plaintiff Dwight Saddler and Defendants Leonard and Paula Saddler regarding the ownership of a piece of real property in the estate of Edwina Groom Saddler known as the Hancock Farm. The trial court awarded this property to Dwight Saddler, finding that he is the owner of the property as the beneficiary of a resulting trust. Because we agree that Dwight Saddler has proven with the required degree of certainty that the Hancock Farm is the subject of a resulting trust in his favor, we affirm the ruling of the trial court. http://www.tba.org/tba_files/TCA/Saddlerd.wpd ROBERT L. TAYLOR v. MICHELLE BOWERS TAYLOR Court:TCA Attorneys: Robert L. Taylor, Pro Se. Judith Fain, Johnson City, Tennessee, for the appellee, Michelle Bowers Taylor. Judge: GODDARD First Paragraph: This appeal arises from a hearing in the Unicoi Chancery Court on motions by the parties. The Court determined that Michelle Taylor should retain custody of the parties' minor child and that Robert Taylor should satisfy his child support arrearage. We affirm the judgment of the Chancery Court and remand for further proceedings, if any, consistent with this opinion. http://www.tba.org/tba_files/TCA/taylorrob.wpd VOWELL VENTURES v. CITY OF MARTIN Court:TCA Attorneys: H. Max Speight, Martin, Tennessee, for the appellant, Vowell Ventures. Mark F. Gallien, Martin, Tennessee, for the appellee, City of Martin. Judge: FARMER First Paragraph: Vowell Ventures, a partnership, sued the City of Martin alleging that the City denied Vowell Ventures' application for a building permit due to the fact that there was a sewer line and storm drain crossing the property. The complaint alleged that the denial of the application for the building permit constituted a taking of property without just compensation and sought judgment against the City for the taking. The trial court granted the City of Martin's Motion To Dismiss Or For Summary Judgment and we affirm. http://www.tba.org/tba_files/TCA/VowellV.wpd STATE OF TENNESSEE v. TIMOTHY E. HIGGS Court:TCCA Attorneys: Joseph P. Atnip, District Public Defender, Kevin McAlpin, Assistant District Public Defender, Steve McEwen, Mountain City, Tennessee, for the appellant, Timothy E. Higgs. Paul G. Summers, Attorney General & Reporter, Mark E. Davidson, Assistant Attorney General, Thomas A. Thomas, District Attorney General, Allen J. Strawbridge, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant appeals from a jury trial conviction for possession of contraband in a penal institution, a Class C felony. In this appeal, the defendant alleges the evidence was not sufficient to support his conviction. Concluding that the evidence was sufficient, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/HIGGST.wpd JERE LOWELL JOSEPH, JR. v. STATE OF TENNESSEE Court:TCCA Attorneys: Dean P. Dedmon, Dyersburg, Tennessee, attorney for appellant, Jere Lowell Joseph, Jr. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Greg Alford, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Jere Lowell Joseph, Jr., appeals two post-conviction cases, claiming that the trial court erred in holding that the petitioner received the effective assistance of counsel in both cases. We affirm the trial court. http://www.tba.org/tba_files/TCCA/JOSEPHJL.wpd STATE OF TENNESSEE v. RICHARD KORSAKOV CORRECTION Court:TCCA Attorneys: Lloyd A. Levitt, Chattanooga, Tennessee, attorney for appellant, Richard Korsakov. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; William H. Cox, III, District Attorney General, and C. Parke Masterson, Jr., Assistant District Attorney General, for appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Richard Korsakov, appeals his conviction for driving under the influence of an intoxicant, third offense. He contends that (1) the breath test results were inadmissible because the officer administering the test failed to observe him for twenty minutes; (2) the photocopies of certification and maintenance records were inadmissible for lack of compliance with the rules of evidence; (3) he should have been allowed to cross-examine the officer on the Horizontal Gaze Nystagmus (HGN) test for the purpose of impeachment; (4) a sealed, miniature bottle of cognac was irrelevant and, therefore, inadmissible; (5) the trial court improperly commented upon the evidence by instructing the jury to disregard the address on an exhibit's tag; and (6) the cumulative effect of the errors at trial prejudiced him. Because we hold that the results of the breath test are inadmissible, we reverse the judgment of conviction and remand the case to the trial court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/Korsakovr.wpd STATE OF TENNESSEE v. CARLOS McDONALD JUDGMENT Court:TCCA Came the appellant, Carlos McDonald, by counsel, and also came the Attorney General on behalf of the State, and this case was heard on the record on appeal from the Criminal Court of Shelby County; and upon consideration thereof, this Court is of the opinion that there is no reversible error on the record and that the judgment of the trial court should be affirmed. http://www.tba.org/tba_files/TCCA/McDonald.wpd STATE OF TENNESSEE v. SHANNON PRIER Court:TCCA Attorneys: Gary F. Antrican, District Public Defender; and Julie K. Pillow, Assistant District Public Defender, Somerville, Tennessee, for the appellant, Shannon Prier. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey Brewer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals her conviction for theft over $1,000 for which she received a two-year suspended sentence. The defendant comes before this court raising the following issues: 1) whether the evidence was sufficient to support her conviction; and 2) whether the trial court properly denied her petition for judicial diversion. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/PRIERO~1.wpd BARRY L. SPECK v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert B. Gaia, Memphis, Tennessee, attorney for appellant, Barry L. Speck. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Thomas Hoover, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Barry L. Speck, appeals the trial court's denial of his petition for post-conviction relief. The state contends that the petition should have been dismissed because of the statute of limitations. The petitioner contends that he received the ineffective assistance of counsel because his attorney failed to use documents provided by the petitioner to impeach the state's witnesses and to provide an alibi for dates listed in the bill of particulars. We hold that the petition was properly considered on its merits, but we affirm the trial court's denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/SPECKBL.wpd STATE OF TENNESSEE v. EDDIE LEE TAYLOR Court:TCCA Attorneys: George Morton Googe, District Public Defender, and Stephen P. Spracher, Assistant Public Defender, for the appellant, Eddie Lee Taylor. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; James G. Woodall, District Attorney General; and Jody S. Pickins, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Eddie Lee Taylor, appeals the trial court's revocation of his probation. He contends that the revocation, based upon conduct for which he faces a future trial, violates his Fifth Amendment right against self-incrimination. We affirm the trial court, holding that the defendant's Fifth Amendment rights were not violated. http://www.tba.org/tba_files/TCCA/TAYLOREL.wpd Judicial Commissioners' Authority to Issue Ex Parte Orders of Protection Date: July 17, 2000 Opinion Number: 00-120 http://www.tba.org/tba_files/AG/OP120.pdf Warrant to search third-party residence to effect an arrest Date: July 17, 2000 Opinion Number: 00-121 http://www.tba.org/tba_files/AG/OP121.pdf Authority of Water Quality Control Board to Promulgate Rules Affecting Aquatic Resource Alteration Permits Date: July 21, 2000 Opinion Number: 00-122 http://www.tba.org/tba_files/AG/OP122.pdf PLEASE FORWARD THIS E-MAIL! 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