October 2, 2000 Volume 6 -- Number 158 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):   04 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 01 New Opinion(s) from the Tennessee Court of Appeals 00 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 SHIRLEY DIANNE BOWDEN, executrix of the estate of jones elmer bowden, deceased v. LARRY E. WARD Court:TSC Attorneys: John J. Mulrooney, Memphis, Tennessee, for the appellant, Shirley Dianne Bowden. Kathleen N. Gomes, Memphis, Tennessee, for the appellee, Larry E. Ward. Judge: BIRCH First Paragraph: The appellant, Shirley Dianne Bowden, executrix of the estate of Jones Elmer Bowden, challenges a claim against the estate filed by the appellee, Larry E. Ward, an individual creditor. Ward received a copy of the published notice which erroneously stated that he had only six months from the date of the first publication of the Notice to Creditors in which to file a claim. He received this notice after the six-month time period had expired. Ward claimed that such notice did not constitute "actual notice," and therefore, his subsequent claim had been timely filed. The trial court found that Ward had received "actual notice" and that his claim had not been timely filed. The Court of Appeals reversed. We are asked to determine whether Ward's claim was timely filed. We hold that because Ward did not receive "actual notice," his claim was timely filed pursuant to Tenn. Code Ann. S 30-2-307. Accordingly, the judgment of the Court of Appeals reversing the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TSC/bowdens.wpd RONNIE LEE CANIPE v. THE MEMPHIS CITY SCHOOLS BOARD OF EDUCATION Court:TSC Attorneys: Charles Hampton White, Richard L. Colbert, and Kurtis J. Winstead, Nashville, Tennessee, for the appellant, Ronnie Lee Canipe. Ernest G. Kelly, Jr., Memphis, Tennessee, for the appellee, the Memphis City Schools Board of Education. Judge: BIRCH First Paragraph: This appeal arises from a decision by the defendant, the Memphis City Schools Board of Education, to terminate the plaintiff, Ronnie Lee Canipe, a tenured teacher. At the hearing, the Board found that Canipe had entered a guilty plea to sexual battery pursuant to a diversion agreement. Based on this and other evidence, the Board terminated Canipe's employment. On petition for certiorari, the trial court granted summary judgment to the Board, and the Court of Appeals affirmed. We granted Canipe's application for review in order to determine whether the Board considered, in terminating Canipe, evidence which was excludable under the provisions of the judicial diversion statute, Tenn. Code Ann. S 40-35-313 (1997). Following our thorough review of the record and close consideration of the authorities, we agree that the Board's decision was based upon appropriate evidence properly admitted. Because we conclude that the evidence was properly before the Board, we hold that the expungement provisions of the diversion statute were not violated and affirm the judgment of the Court of Appeals. http://www.tba.org/tba_files/TSC/caniper.wpd STATE OF TENNESSEE v. DONALD RAY HAMMONDS Court:TSC Attorneys: Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Gordon W. Smith, Associate Solicitor General, Nashville, Tennessee, for the appellant, State of Tennessee. Raymond C. Conkin, Jr., Kingsport, Tennessee, for the appellee, Donald Ray Hammonds. Judge: DROWOTA First Paragraph: The defendant/appellee was convicted of aggravated assault upon an indictment which charged that on February 23, 1996, in Sullivan County, the defendant "did unlawfully, feloniously, intentionally, and knowingly commit an assault [upon the victim] by using and displaying a deadly weapon, in violation of [Tenn. Code Ann. S 39-13-102]." The defendant appealed his conviction, and the Court of Criminal Appeals reversed after sua sponte examining the indictment and finding it insufficient for failure to allege that the defendant caused bodily injury or imminent fear of bodily injury to the victim. We granted the State's application for permission to appeal to determine whether an aggravated assault indictment is legally insufficient if it does not specifically allege the theory by which the State intended to establish the second element of the offense - commission of an assault. We hold that such an indictment is sufficient so long as the indictment both protects the accused's constitutional rights to notice and satisfies the requirements imposed by statute. For the reasons that follow, we conclude that the indictment in this case satisfies these constitutional and the statutory requirements. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the judgment of the trial court is reinstated. http://www.tba.org/tba_files/TSC/hammondsdonr.wpd TRENT WASHINGTON and MARCUS CARR v. ROBERTSON COUNTY, TENNESSEE, ET AL. Court:TSC Attorneys: John E. Quinn, Nashville, Tennessee, for the petitioner, Robertson County, Tennessee. J. Russell Farrar and Kristin Ellis Berexa, Nashville, Tennessee, for the petitioner, City of Springfield. W. Gary Blackburn, Nashville, Tennessee, for the petitioners, Mark Woodfin, Darrell Cook, Dana Heckart, and Unknown Officers. Robert M. Burns, Nashville, Tennessee, for the petitioners, Curtis Carney and Jeffrey Baskette. Charles R. Ray and Jeffery S. Frensley, Nashville, Tennessee, for the respondents, Trent Washington and Marcus Carr. Judge: ANDERSON First Paragraph: In response to three questions certified to this Court from the United States District Court of the Middle District of Tennessee, we hold: that the elements of the civil claim of malicious harassment under Tenn. Code Ann. S 4-21-701(1998) are derived from the criminal offense of civil rights intimidation under Tenn. Code Ann. S 39-17-309 (1997); that a claim may be brought against a private individual or an employee of a government agency in his or her individual capacity; and that a governmental entity may be liable for the acts of its employees committed in the course and scope of employment in accordance with the doctrine of respondeat superior. http://www.tba.org/tba_files/TSC/washgtnt.wpd S.E.A., INC. v. SOUTHSIDE LEASING COMPANY, ET AL. Court:TCA Attorneys: Charles A. Wagner, III, and W. Turner Boone, Knoxville, Tennessee, for the appellant, S.E.A., Inc. Fredrich H. Thomforde, Jr., Knoxville, Tennessee, for the appellee, Southside Leasing Company. George W. Morton, Jr., Knoxville, Tennessee, for the appellee, Moss W. Yater. Judge: SWINEY First Paragraph: S.E.A., Inc. brought suit in Knox County Chancery Court seeking an injunction and alternatively, damages, against its lessor, Southside Leasing Company, and Southside's secured creditor, Moss W. Yater, regarding a non-disturbance agreement. Yater is also Southside's majority shareholder, president and director. S.E.A.sought to sublease a portion of the property. Pursuant to the terms of the lease between S.E.A. and Southside, Southside consented to the sublease and executed the requested non-disturbance agreement. However, Yater, Southside's secured creditor, refused to execute the non-disturbance agreement unless Southside received a portion of the rent from the sublease. Defendants filed motions for summary judgment which were granted by the Trial Court. S.E.A. appeals the Trial Court's granting of summary judgment to the Defendants. We affirm. http://www.tba.org/tba_files/TCA/seainc.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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