August 9, 2000 Volume 6 -- Number 125 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 08 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 EWIN BUSH, et al. v. TONY WESLEY CARRICK Court:TCA Attorneys: Allen Shoffner, Shelbyville, for Appellants Tamra L. Smith, Shelbyville, for Appellee Judge: HIGHERS First Paragraph: This case involves the alleged fraudulent transfer of the proceeds from a certificate of deposit. In the trial court, the plaintiffs sought the imposition of a constructive trust over improvements to property built with the funds. The Chancery Court of Bedford County ruled that the plaintiffs had failed to carry their burden of proof and rendered judgment in favor of the defendant. http://www.tba.org/tba_files/TCA/bushewin.wpd DICKSON COUNTY, TENNESSEE v. H. CLYDE JENNETTE, et al. Court:TCA Attorneys: Don L. Smith, Jefferson C. Orr and Kenneth S. Schrupp, Nashville, Tennessee, for the appellants, H. Clyde Jennette, Rachel E. Jennette, and Jenco Construction, Inc. George A. Dean, Nashville, Tennessee, for the appellee, Dickson County, Tennessee. Judge: CAIN First Paragraph: This case involves the use of certain property in Dickson County in light of a 1988 zoning ordinance which provides that mining and quarrying on this property are permitted as a special exception only. When the county attempted to enjoin the property owners from mining or quarrying their property, the property owners argued that their property was being used as a quarrying operation prior to October 1988 when the city passed the zoning ordinance. Thus, it is the property owners' position that their quarrying operation constitutes a pre-existing nonconforming use and may continue pursuant to both the Dickson County zoning ordinance and Tennessee Code Annotated section 13-7-208(b). http://www.tba.org/tba_files/TCA/DicksonCoJenn.wpd WILLIAM ANDREW DIXON v. DONAL CAMPBELL, COMMISSIONER, TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Thomas F. Bloom, Nashville, Tennessee, for the appellant, William Andrew Dixon. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; and Pamela S. Lorch, Assistant Attorney General, for the appellee, State of Tennessee. Judge: CANTRELL First Paragraph: A prisoner serving a life sentence petitioned the court to order the Department of Correction to restore sentence reduction credits it had deleted from his record after determining that his sentence was to be served without the possibility of parole. The trial court dismissed the petition. We affirm the trial court. http://www.tba.org/tba_files/TCA/dixonwa.wpd OUTH CENTRAL TENNESSEE RAILROAD AUTHORITY, et al. v. ANDRE HARAKAS, et al. Court:TCA Attorneys: H.E. Miller, Jr., Gallatin, Tennessee, for appellants Andre Harakas, Sara Harakas, Cynthia Louise Vernon, and Louise Miner. William Landis Turner, Hohenwald, Tennessee, for appellees South Central Tennessee Railroad Authority and South Central Railroad Company. Judge: COTTRELL First Paragraph: Plaintiffs, the owner and lessee of property on which a railroad track was located, obtained a temporary injunction prohibiting Defendants, owners of adjacent property, from building a house on what Plaintiffs alleged was their right-of-way. After Defendants presented evidence that Plaintiffs possessed only an easement as needed for railroad operations, rather than a right-of-way, the court dissolved the temporary injunction and denied a permanent injunction. Defendants then filed a motion to assess damages and enforce liability of surety on injunction bond pursuant to Tenn. R. Civ. P. 65.05, seeking recovery for the losses resulting from the issuance of the temporary injunction. Defendants appeal the trial court's denial of their motion. We reverse. http://www.tba.org/tba_files/TCA/harakas.wpd ISAAC L. HERRON v. JACK MORGAN, WARDEN, et al. Court:TCA Attorneys: Isaac L. Herron, Only, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Pamela S. Lorch, Assistant Attorney General, for the appellees, Jack Morgan, Warden, and Lorenzo Lore, Corrections Officer. Judge: COTTRELL First Paragraph: A state prisoner appeals the trial court's dismissal of his 42 U.S.C. S 1983 lawsuit alleging cruel and unusual punishment arising from a corrections officer's actions in bringing disciplinary charges for which the prisoner received a verbal warning. The prisoner also appeals the trial court's order directing the Commissioner of Corrections to forfeit a number of the prisoner's sentence reduction credits pursuant to Tenn. Code Ann. S41-21-816 for filing a frivolous claim. Because the complaint fails to state a claim of a violation of the Eighth Amendment, we affirm the dismissal. Because the claim had no basis in law and no chance of success, we affirm the trial court's finding that the claim was frivolous. Because Tenn. Code Ann. S41-21-816 does not contemplate court involvement in calculating the appropriate number of credits to be forfeited for the filing of frivolous lawsuits, we vacate the trial court's order to the Commissioner of Corrections. http://www.tba.org/tba_files/TCA/HerronI.wpd ANDREW PALMER v. SOUTH CENTRAL CORRECTIONAL FACILITY DISCIPLINARY BOARD Court:TCA Attorneys: Andrew Palmer, Clifton, Tennessee, Pro Se. Tom Anderson, Jackson, Tennessee, for the appellee, South Central Correctional Facility Disciplinary Board. Judge: CAIN First Paragraph: Petitioner, an incarcerated prisoner at South Central Correctional Facility, appeals the dismissal by the trial court of his petition for a writ of certiorari to review a disciplinary decision made by the Correctional Facility Disciplinary Board and approved by the Tennessee Department of Correction ("T.D.O.C."). The defendant filed a Rule 12.02(6), Tenn. R. Civ. P., motion asserting the failure of Petitioner to state a claim for which relief may be granted. The trial court sustained this motion to dismiss. We reverse. http://www.tba.org/tba_files/TCA/PalmerAndrew.wpd WILLIE PERRY v. COLD CREEK CORRECTIONAL FACILITY DISCIPLINARY BOARD, et al. Court:TCA Attorneys: Willie Perry, pro se, Henning, TN Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Rae Oliver, Assistant Attorney General, for appellee, State of Tennessee Judge: HIGHERS First Paragraph: This case arises from the decision of the Cold Creek Correctional Facility Disciplinary Board finding the Appellant guilty of attempting to intimidate an employee and being under the influence of alcohol. The Appellant filed a Petition for Common Law and Statutory Writ of Certiorari with the Chancery Court of Davidson County challenging the Disciplinary Board's decision. The trial court affirmed the decision of the Board and dismissed the Appellant's claim. http://www.tba.org/tba_files/TCA/perrywillie.wpd JOE TRAMMELL AND KAREN TRAMMELL v. GEORGE W. POPE, JR., INDIVIDUALLY AND D/B/A ACHIEVA HOMES Court:TCA Attorneys: Gail P. Pigg, Nashville, for appellant Paul T. Housch, Nashville, for appellees Judge: HIGHERS First Paragraph: This appeal arises out of a default judgment rendered against the Appellant. The underlying cause of action was for the breach of a construction contract. After the Appellant did not answer the complaint or otherwise defend the action, the Chancery Court of Williamson County granted the plaintiffs' motion for default and entered judgment accordingly. A subsequent damage hearing was held at which the Appellant did not appear. The Appellees obtained a judgment for $918,073.15. The Appellant filed an application to set aside the default judgment which was denied by the trial court. http://www.tba.org/tba_files/TCA/trammelljoe.wpd STATE OF TENNESSEE v. JAMES A. SHIVELY Court:TCCA Attorneys: Eugene Honea, Assistant Public Defender, Franklin, Tennessee, for the appellant, James A. Shively. Paul G. Summers, Attorney General & Reporter, Jennifer L. Bledsoe, Assistant Attorney General, Ronald L. Davis, District Attorney General, Jeffrey Preston Burks, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Having pled guilty to various counts of aggravated burglary, robbery, auto theft, and theft, the defendant appeals from his sentences. He argues that the trial court improperly imposed consecutive sentences and that his effective twelve-year sentence is therefore excessive. After a de novo review, we affirm the sentences as imposed. http://www.tba.org/tba_files/TCCA/ShivelyJA.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. 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