September 14, 2000 Volume 6 -- Number 147 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 04 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 09 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 JOHNNY L. FRYE v. ATHENS PRODUCTS Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Robert S. Thompson Donald B. Reid Logan, Thompson, Miller, Bilbo 10 West Madison Avenue Thompson, & Fisher, P.C. P.O. Box 628 30 Second Street Athens, TN 37371-0628 Cleveland, TN 37364-0191 Judge: BYERS 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 S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. http://www.tba.org/tba_files/TSC_WCP/frye.wpd STEVEN PORRECA v. CHILI'S INC., & LIBERTY MUTUAL INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: C. Douglas Dooley and Charles W. Poss, Chattanooga, Tennessee, for the appellant, Chili's Inc. and Liberty Mutual Insurance Co. Herbert Thornbury, Chattanooga, Tennessee, for the appellee, Steven Porreca. Judge: BYERS 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 S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff was burned while working for the defendant restaurant. The defendant did not dispute that the plaintiff suffered a compensable injury but did argue the award of fifty percent permanent partial disability was excessive and also contended the trial court should have allowed an offset for overpayment of approximately two weeks of temporary total disability. We affirm. http://www.tba.org/tba_files/TSC_WCP/porreca.wpd EVERETT ALAN SMITH, By and through his wife and Conservator PAM SMITH v. SAFETY KLEEN CORPORATION Court:TSC - Workers Comp Panel Attorneys: Tricia I. Dennis, Chattanooga, Tennessee, for the appellant, Everett Alan Smith. Larry L. Cash, Chattanooga, Tennessee, for the appellee, Safety-Kleen Corporation. Judge: BYERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff, Everett Alan Smith, filed various motions in this case, all of which were denied by the trial court. The plaintiff appeals from the trial court's: (1) refusal to award temporary total benefits from the date of injury until time of medical improvement rating by physician or from the date of injury until trial; (2) denial of a lump sum payment of attorney fees because the request was in the form of a motion rather than in the form of a petition; (3) denial of motion requiring the defendant to pay for medication and authorized physician benefits because the plaintiff sought these by motion rather than by petition. http://www.tba.org/tba_files/TSC_WCP/smithea.wpd PETER A. SMITH v. ASPLUNDH TREE EXPERT CO. Court:TSC - Workers Comp Panel Attorneys: J. Bartlett Quinn, Chattanooga, Tennessee, for the appellant, Asplundh Tree Expert Co. R. Dee Hobbs, Chattanooga, Tennessee, for the appellee, Peter A. Smith. Judge: BYERS 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 S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant appeals from the judgment of the trial court which awarded the plaintiff temporary total benefits from May of 1992 until November 20, 1995, and found the plaintiff had sustained a forty percent permanent partial disability to the body as a whole. The plaintiff suffered a compensable injury, returned to work for the pre-injury employer, then left that position and obtained employment with another employer. We affirm the award of permanent partial disability, reverse the award of temporary total disability and remand the case to the trial court for a determination of the amount owed consistent with our findings. http://www.tba.org/tba_files/TSC_WCP/smithpa.wpd AMERICAN CABLE CORP. v. ACI MANAGEMENT, INC., et al. Court:TCA Attorneys: W. Gary Blackburn and William J. Shreffler, Nashville, Tennessee, for the appellant, American Cable Corporation. H. Frederick Humbracht, Jr., Nashville, Tennessee, for the appellee, Vince King. Judge: KOCH First Paragraph: This appeal involves a legal dispute arising out of a contract to install television cable in Alabama and Mississippi. After the corporation that installed the cable did not receive full payment for its work, it filed suit in the Chancery Court for Davidson County Tennessee against the corporation and partnership that hired it and the president of the defendant corporation. The trial court granted a summary judgment dismissing the claims against the defendant corporation's president, and the installer took a default judgment against the corporation for $1,059,743. On this appeal, the installer takes issue with the summary judgment dismissing its claims against the defendant corporation's president. We have determined that the trial court properly granted the summary judgment because the installer failed to demonstrate that it will be able to prove all the essential elements of its tort claims against the defendant corporation's president. http://www.tba.org/tba_files/TCA/americancable.wpd ROBERT CHAD BLAYLOCK v. LLOYD NASH dba PEOPLES STOCKYARD Court:TCA Attorneys: William L. Draper, Cookeville, Tennessee, for the appellant, Robert Chad Blaylock. John T. Rice, Chattanooga, Tennessee, for the appellee, Lloyd Nash, dba Peoples Stockyard. Judge: CAIN First Paragraph: This negligence action arises out of a collision between a cow and a car driven by the plaintiff. The trial court granted summary judgment to the defendant, the alleged owner and operator of a stockyard from which the cow supposedly escaped. We affirm the trial court's decision finding that the plaintiff presented no evidence that the defendant breached his duty of care. However, we do not find that the plaintiff's appeal of the trial court's decision was frivolous. http://www.tba.org/tba_files/TCA/blaylockrobt.wpd STEPHEN DOUGLAS FILLMORE v. KAREN LEIGH FILLMORE Court:TCA Attorneys: Jeanan Mills Stuart and W. Allen Barrett, Nashville, Tennessee, for the appellant, Stephen Douglas Fillmore. Charlotte U. Fleming, Springfield, Tennessee, for the appellee, Karen Leigh Fillmore. Judge: FARMER First Paragraph: This appeal arises from a dispute between Appellant Stephen Douglas Fillmore and Appellee Karen Leigh (Anderson) Fillmore regarding the terms of their divorce. The court issued a Final Decree of Divorce, divided the parties' marital property and debts, and awarded Ms. Anderson alimony in solido. In addition, the court awarded custody of the one minor child to Ms. Anderson and set a child support amount based on the appropriate guidelines. On appeal, Mr. Fillmore argues that the trial court erred in its valuation of certain marital property, improperly awarded alimony in solido, and failed to include as a marital debt a pre-marital debt of Mr. Fillmore. In addition, Mr. Fillmore argues that the trial court improperly calculated his child support obligation based on his current income. We affirm the ruling of the trial court. http://www.tba.org/tba_files/TCA/fillmoresd.wpd GEORGE A. HENDERSON v. MARILYN JO TUCKER HENDERSON WITH DISSENTING OPINION Court:TCA Attorneys: Michael W. Binkley, Nashville, Tennessee, for the appellant, Marilyn Jo Tucker Henderson Ernest W. Williams and Dana C. McLendon III, Franklin, Tennessee, for the appellee, George Arnold Henderson Judge: GODDARD First Paragraph: This appeal involves a dispute over the Trial Court's valuation and division of marital property in this divorce action. Mrs. Henderson contends that the Trial Court undervalued the marital business, Quality Systems, Inc. Additionally, Mrs. Henderson asserts the Trial Court erred in dividing the marital assets and liabilities, denying alimony and attorney's fees and in ordering her to refund alimony pendente lite payments. We affirm the Trial Court's order, except for the denial of alimony. We vacate the Trial Court's determination on the issue of alimony and remand for a determination of the proper type and amount of alimony to be awarded to Mrs. Henderson. http://www.tba.org/tba_files/TCA/hendersong_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCA/hendersong_dis.wpd BETTY HOLLEY v. CLAYTON HAEHL, et al. Court:TCA Attorneys: Robert D. Massey, Pulaski, For Appellant, Betty Holley Henry, Henry & Speer, P.C., Pulaski, For Appellees, Clayton Haehl and Charles Butch Stubblefield Judge: CRAWFORD First Paragraph: Landowner sued adjoining landowner and timber cutter in general sessions court for trespass and the cutting of timber on her land. From an adverse judgment, landowner appealed to the circuit court. After a trial de novo, the trial court held that adjoining landowner owned the land involved by adverse possession and entered judgment for defendants. Landowner has appealed. http://www.tba.org/tba_files/TCA/holleybet.wpd LISA LEE LEVENHAGEN v. DARBY LON LEVENHAGEN Court:TCA Attorneys: Billy K. Tollinson, McMinnville, Tennessee, for the appellant, Darby Lon Levenhagen. Neil Morholt, Fayetteville, Tennessee, for the appellee Lisa Lee Levenhagen. Judge: COTTRELL First Paragraph: Husband appeals the trial court's refusal to vacate its order divorcing the parties, claiming the order is void because it failed to include an affirmative finding that the parties made adequate provision by written agreement for the custody and maintenance of their children. In addition, Husband contends that the trial court violated his due process rights by suspending his visitation with the couple's children until he received counseling, and then ordering supervised visitation. He also maintains that the trial court improperly based its finding that he was guilty of criminal contempt for failure to pay child support on insufficient evidence. Husband claims he was entitled to a jury trial on the contempt issue. We affirm the trial court in all respects. http://www.tba.org/tba_files/TCA/levenhagen.wpd TOWN OF NOLENSVILLE v. RONALD M. KING Court:TCA Attorneys: Robert J. Notestine, III, Nashville, Tennessee, for the appellant, Town of Nolensville. John E. Herbison, Nashville, Tennessee, for the appellee, Ronald M. King. Judge: KOCH First Paragraph: This appeal arises from the enforcement of the Town of Nolensville's ordinance outlawing the storage of abandoned or unusable automobiles and storage trailers within its city limits. After the Nolensville City Court entered a judgment against him for $18,600, a town resident petitioned the Circuit Court for Williamson County for a common-law writ of certiorari seeking to set aside the city court's judgment because he had been deprived of his right to a jury trial. The trial court granted the writ and set aside the city court's judgment based on its conclusion that Tenn. Const. art. VI, S 14 guarantees the right to a jury trial for fines in excess of fifty dollars. We have determined that the trial court misconstrued Tenn. Const. art. VI, S 14 and, therefore, we vacate the order granting the writ of certiorari and remand the case to the trial court with directions to dismiss the petition for writ of certiorari. http://www.tba.org/tba_files/TCA/nolensville.wpd LEE OFMAN v. DR. JAMES WOODFORD Court:TCA Attorneys: Philip Edward Schell, Franklin, Tennessee, for the appellant, Dr. James Woodford. Lee Ofman, Franklin, Tennessee, Pro Se. Judge: CAIN First Paragraph: This is a suit by an attorney for breach of an oral contract relative to the professional services of an expert witness. Suit was instituted by civil warrant in the general sessions court. Following a default judgment in favor of the plaintiff, an appeal was perfected by the defendant to the circuit court where the case was tried de novo, non-jury and resulted in a judgment for the plaintiff in the amount of $2,500.00. The defendant appealed, and we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/ofmanlee.wpd BILLY R. STONE v. BELLSOUTH TELECOMMUNICATIONS, INC., Court:TCA Attorneys: Gary D. Copas, Nashville, For Appellant, Billy R. Stone Patrick W. Turner, Nashville, For Appellee, Bellsouth Telecommunications, Inc. Judge: CRAWFORD First Paragraph: Plaintiff nonsuited complaint for personal injuries approximately four years after suit was filed without having taken any action to prosecute the suit. Another complaint was filed within one year of the nonsuit pursuant to T.C.A. S 28-1-105 and summons was issued the same day. The summons was not returned, and plaintiff, one day short of a year later, issued alias summones and service was effected. Defendant filed a motion to dismiss on the ground that the complaint was "time barred." The trial court, while finding that the suit was not time barred, dismissed the complaint on its merits for failure to diligently prosecute. Plaintiff has appealed. We reverse. http://www.tba.org/tba_files/TCA/stonebil.wpd STATE OF TENNESSEE v. MATTHEW W. LEONARD AND BERNIE J. EVANS Court:TCCA Attorneys: Jeffery C. Kelly, Johnson City, Tennessee, and Steve McEwen, Mountain City, Tennessee, for the appellant, Matthew W. Leonard. D. Stephen Duncan, Johnson City, Tennessee, for the appellant, Bernie J. Evans. Paul G. Summers, Attorney General and Reporter, R. Stephen Jobe, Assistant Attorney General, Victor Vaughn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellants, Matthew W. Leonard and Bernie J. Evans, each pled guilty in the Criminal Court for Washington County to three counts of kidnapping, a class C felony, three counts of aggravated assault, a class C felony, one count of escape, a class E felony, and one count of theft over $10,000, a class C felony. The appellants requested that the trial court grant them full probation. After a probation hearing, the trial court denied the appellants' request. The appellants present the following issue for our review: whether the trial court erred in denying the appellants full probation. After a review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/leonardevans.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! 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