October 12, 2000 Volume 6 -- Number 166 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 06 New Opinion(s) from the Tennessee Court of Appeals 02 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 ROBERT E. BENNETT, et ux. v. PUTNAM COUNTY, TENNESSEE Court:TCA Attorneys: Robert H. Watson, Jr.; Nathan D. Rowell, Knoxville, for Appellant, Putnam County, Tennessee Jon E. Jones; Gwen D. Jones, Cookeville, For Appellees, Robert E. Bennett and Helen Bennett Judge: CRAWFORD First Paragraph: This appeal arises from a collision involving a Putnam County ambulance parked at the site of a previous automobile accident. Plaintiff, a bystander who stopped to assist the motorist in the original accident, was severely injured when he was pinned between the parked ambulance and an approaching vehicle. Plaintiff filed suit against the County, alleging that the paramedics who responded to the original accident were negligent in their placement of the ambulance and in failing to control the accident scene pending the arrival of law enforcement personnel. Plaintiff also alleged negligence per se based upon the ambulance driver's violation of T.C.A. S 55-8-158. The circuit court under doctrine of comparative negligence allocated ten percent fault to county based on common law negligence and negligence per se for violation of statute. County appeals. http://www.tba.org/tba_files/TCA/bennettrob.wpd CONSUMER ADVOCATE DIVISION, on behalf of Tennessee consumers v. TENNESSEE REGULATORY AUTHORITY and UNITED TELEPHONE- SOUTHEAST, INC. Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, L. Vincent Williams, Deputy Attorney General, for Appellant J. Richard Collier, Jonathan N. Wike, for Appellee, Tennessee Regulatory Authority R. Dale Grimes, T. G. Pappas, James B. Wright, for Appellee, United Telephone-Southeast, Inc. Guy M. Hicks, Patrick W. Turner, for Appellee, Bellsouth Telecommunications, Inc. Judge: HIGHERS First Paragraph: This appeal involves price regulation of telecommunication companies pursuant to T.C.A. S 65-5- 209. In September, 1998, United Telephone Southeast filed its 1998 Annual Price Regulation filing with the Tennessee Regulatory Authority. The filing proposed an increase in rates for non-basic services. In determining the amount of the increase, UTSE combined the calculations of annual maximum increases based on the rates of inflation for the three preceding years and applied this cumulative figure to UTSE's rates in effect in June 1995. The TRA approved the price regulation plan. The Consumer Advocate Division appeals that approval under Rule 12 of the Tennessee Rules of Appellate Procedure. http://www.tba.org/tba_files/TCA/consumeradvo.wpd CUMBERLAND BANK, et al. v. HENRIETTA SMITH, et al. Court:TCA Attorneys: Michael R. Jennings, Lebanon, Tennessee, for the appellant, Henrietta Smith. J. Branden Bellar, Carthage, Tennessee, for the appellee, Cumberland Bank. Judge: CANTRELL First Paragraph: A creditor filed an action to sell a parcel of the debtor's real estate to satisfy a judgment lien on the property. The Chancery Court of Smith County granted the relief requested. The judgment debtor asserts on appeal that the underlying judgment and a nulla bona sheriff's return are void. For the reasons set forth in our opinion below, we affirm the action of the lower court. http://www.tba.org/tba_files/TCA/cumberlandbank.wpd STATE OF TENNESSEE, EX. REL. JAMES BOREN, et al. v. TOWN OF ORLINDA, et al. Court:TCA Attorneys: Douglas Berry, Nashville John P. Williams, Nashville Judge: CRAWFORD First Paragraph: This appeal arises from property owners' quo warranto challenge to an ordinance annexing their property. Property owners allege that the annexation was not reasonably necessary for the their health, safety, and welfare and for the annexing municipality. Prior to trial, the trial court denied Defendant's motion in limine which sought to exclude testimony of the property owners, a comparison of the services offered by the annexing municipality and a neighboring municipality interested in annexing the disputed area, evidence regarding the public hearing on annexation, and evidence of the annexing municipality's other annexations. The jury returned a verdict for Plaintiffs, finding the annexation was not reasonable, and the trial court entered judgment thereon. Defendant appeals. http://www.tba.org/tba_files/TCA/stateboren.wpd ANTONIO L. SWEATT v. TENNESSEE BOARD OF PAROLES, et al. Court:TCA Attorneys: Antonio L. Sweatt, pro se Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Pamela S. Lorch, Assistant Attorney General, for the Appellee Judge: HIGHERS First Paragraph: Appellant Antonio L. Sweatt brings this Petition for a Common Law Writ of Certiorari regarding the Tennessee Board of Paroles' decision to deny him parole based on the seriousness of the offense that he committed. Appellant avers that the Board of Paroles acted illegally or arbitrarily in denying his parole because appellant asserts that his guilty plea agreement included the agreement that he would only serve thirty percent of his twenty-five-year sentence and then he would be released on parole. http://www.tba.org/tba_files/TCA/sweattantonio.wpd STATE OF TENNESSEE, DEPARTMENT OF TRANSPORTATION v. SUNSET MARINA AND RESORT, INC., AND TONY SLOAN Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, William E. James, Senior Counsel, for Appellant Jon E. Jones, Phillips M. Smalling, for Appellees Judge: HIGHERS First Paragraph: This appeal arises out of what can loosely be defined as a condemnation case. The State of Tennessee, acting through the Department of Transportation, received an easement from the Corps of Engineers for the purpose of building a bridge across Dale Hollow Lake in Pickett County, Tennessee. The bridge was to be built across land owned by the United States and operated by the Defendants as a resort and marina under a lease for commercial purposes. The State filed a Petition for Condemnation against the leaseholder in the Pickett County Circuit Court seeking to take the land under its power of eminent domain. The trial court determined that the State could not take the land based on the Supremacy Clause of the United States Constitution. However, the State had already begun work on the project, and, ultimately, the bridge was completed. The court held a trial to determine the damages which the leaseholder had suffered as a result of the bridge being placed across the leasehold. The trial court granted a partial directed verdict and awarded the leaseholder $287,115. The trial court also awarded the leaseholder $100,000 as attorneys' fees in lieu of injunctive relief. The State appeals from the partial directed verdict and the award of attorneys' fees. http://www.tba.org/tba_files/TCA/tdotvsunset.wpd State of Tennessee v. David Wayne Salley Court:TCCA Attorneys: John B. Nisbet, III, Cookeville (on appeal), Stephen M. Wallace, District Public Defender, and Leslie S. Hale, Assistant District Public Defender (at trial), for the appellant, David Wayne Salley. Paul G. Summers, Attorney General & Reporter, Mark A. Fulks, Assistant Attorney General, H. Greeley Wells, Jr., District Attorney General, Barry P. Staubus and Gregory A. Newman, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: David Wayne Salley appeals from his conviction of aggravated rape. He raises issues related to sufficiency of the evidence, jury instructions on lesser-included offenses, admission of evidence obtained pursuant to search warrants, impeachment of the defendant with prior violent felony convictions, exclusion of evidence of consensual sexual relations with the then-minor victim 21 years before the crime, deficient notice that the state was seeking Range III classification for sentencing, and an excessive sentence. Because there is no error requiring reversal, we affirm. http://www.tba.org/tba_files/TCCA/salleydw.wpd STATE OF TENNESSEE v. PAUL ANDREW THOMPSON Court:TCCA Attorneys: Douglas A. Trant, Knoxville, Tennessee, attorney for appellant, Paul Andrew Thompson. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and G. Douglas Godbee, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals his conviction for first degree murder and sentence of life imprisonment without parole, contending (1) that the evidence was insufficient to establish premeditation, (2) that the testimony of Kimberly Johnson, the victim's ex-stepdaughter, was improperly excluded, and (3) that the evidence was insufficient to establish the aggravating circumstance of mutilation of the body. We affirm the defendant's conviction and sentence. http://www.tba.org/tba_files/TCCA/thompsonpa.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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