October 17, 2000 Volume 6 -- Number 169 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 03 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 11 New Opinion(s) from the Tennessee Court of Appeals 06 New Opinion(s) from the Tennessee Court of Criminal Appeals 12 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 RONALD DEVANEY V. CITY OF ROCKWOOD and TML RISK MANAGEMENT POOL, PUBLIC RISK SERVICES, INC. Court:TSC - Workers Comp Panel Attorneys: Thomas F. Mabry, Knoxville, Tennessee, for the appellant, Ronald Devaney John T. Batson, Jr., Knoxville, Tennessee, for the Appellee, City of Rockwood and TML Risk Management Pool, Public Risk Services, Inc. Judge: PEOPLES 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 trial court found the suit barred by the statue of limitations, and granted summary judgment in favor the City of Rockwood and TML Risk Management Pool, Public Risk Services, Inc. We affirm. http://www.tba.org/tba_files/TSC_WCP/devaneyu.wpd WILLIE GRACE GREEN V. ATRIUM MEMORIAL SURGERY CENTER Court:TSC - Workers Comp Panel Attorneys: David C. Nagle, Chattanooga, Tennessee, for the appellant, Atrium Memorial Surgery Center. Stephen T. Greer and Russell Anne Swafford, Dunlap, Tennessee for the appellee, Willie Grace Green Judge: PEOPLES 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 appellant, Atrium Memorial Surgery Center (hereafter "Atrium Memorial"), appeals an award of thirty-five percent disability to the body as a whole to Willie Grace Green. Appellant contends the trial court erred (1) in finding that the employee's underlying preexisting condition was advanced or progressed by her work, and (2) in awarding permanent partial disability benefits in any amount. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/green.wpd VESTAL MANUFACTURING COMPANY VS. TERESA ANDERSON Court:TSC - Workers Comp Panel Attorneys: David Collier Nagle, Chattanooga, Tennessee, for the appellant, Vestal Manufacturing Company Nestor Eugene Worthington, Madison, Tennessee, for the Appellee, Teresa Anderson Judge: PEOPLES 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 appellant, Vestal Manufacturing Co., appeals an award of thirty-five percent disability to the body as a whole to Teresa Anderson. Appellant contends the trial court erred (1) in finding that Ms. Anderson has a twenty percent medical impairment rather than a five percent medical impairment, (2) in concluding Ms. Anderson has a permanent partial disability of thirty-five percent to the body as a whole, and (3) in construing the phrase, "The employer takes the employee as it finds her." We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/vestalmfg.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_1016.wpd MICKEY BRENT BILLINGSLEY v. DIANE BROWN BILLINGSLEY Court:TCA Attorneys: Richard L. Dunlap, III, Paris, Tennessee, for the appellant, Mickey Brent Billingsley. Steve Conley, Union City, Tennessee, for the appellee, Diane Brown Billingsley. Judge: FARMER First Paragraph: This case concerns a husband's efforts to terminate his obligation to pay his ex-wife $216.67 per month in alimony in futuro because of the post-divorce increase in his former wife's income. The trial court denied the husband's petition, finding that there had not been a change in circumstances sufficient to warrant the termination of the spousal support obligation. We affirm. http://www.tba.org/tba_files/TCA/billingsleymb.wpd BIO-MEDICAL APPLICATIONS OF TENNESSEE, INC., et al. v. K.R. CHARY, M.D., et al. Court:TCA Attorneys: Steven A. Riley and John R. Jacobson, Nashville, Tennessee, for the Appellants Bio-Medical Applications of Tennessee, Inc. and National Medical Care, Inc. J. Houston Gordon, Covington, Tennessee, for the Appellee K.R. Chary, M.D., Irma Merrill, Memphis, Tennessee, for the Appellee Alagiri Swamy, M.D., Paul F. Rice, Jackson, Tennessee, for the Appellee Ramesh Sarva, CPA, and J. Graham Matherne, Nashville, Tennessee, for the Appellee Tennessee Dialysis Clinics, Inc. Catherine B. Clayton, Jackson, Tennessee, for the Appellee Shirish Joglekar, M.D. Judge: LILLARD First Paragraph: This is a lawsuit to enforce covenants not to compete. The plaintiffs are private companies that own and operate dialysis medical clinics in West Tennessee. The plaintiffs brought an action against the defendant physicians to enforce covenants not to compete contained in agreements for the sale of the dialysis clinics and other related employment agreements. The trial court granted summary judgment to the physicians on the ground that the covenants are void because they are contrary to public policy. We affirm in part, reverse in part, and remand, finding the covenants enforceable to the extent that they do not prevent the defendant physicians from practicing medicine in their specialty. http://www.tba.org/tba_files/TCA/biomedical.wpd CITY OF BOLIVAR, et al. v. CLARENCE GOODRUM, JR. Court:TCA Attorneys: Clarence Goodrum, Jr., Pro Se Charles M. Cary, Bolivar, For Appellee, City of Bolivar, et al Judge: CRAWFORD First Paragraph: The city and county filed suit in chancery court against landowner to collect delinquent fees due for solid waste disposal assessed pursuant to authority granted by T.C.A. S 68-211-835 (g). The chancery court entered judgment against landowner for the amount of deliquent fees and pursuant to T.C.A. S 68-211-835 (g)(4) impressed a lien on the landowner's property. Landowner has appealed. http://www.tba.org/tba_files/TCA/cityofbolivar.wpd WILLIAM A. FLEMING v. LEATHA G. FLEMING Court:TCA Attorneys: Kim G. Sims; Memphis, For Appellant, William A. Fleming Richard F. Vaughn, Memphis, for Appellee, Leatha G. Fleming Judge: CRAWFORD First Paragraph: This appeal involves the division of marital property and award of alimony in futuro in an action for divorce. Husband receives retirement income from the United States Army. Wife has an annuity through her employer which accrued during the parties' marriage. The circuit court awarded Wife $150 a month as alimony in futuro, but ruled that the parties should keep their retirement accounts as separate property. Husband has appealed, and both parties present issues for review. http://www.tba.org/tba_files/TCA/flemingwil.wpd GENERAL CONSTRUCTION CONTRACTORS ASSOCIATION, INC. d/b/a GENERAL CONSTRUCTION CONTRACTOR ASSOCIATES, INC. v. GREATER SAINT THOMAS BAPTIST CHURCH, et al. Court:TCA Attorneys: James H. Kee, Memphis, Tennessee, for the appellant, Greater Saint Thomas Baptist Church. Regina C. Morrison and James W. Hodges, Jr., Memphis, Tennessee, for the appellee, General Construction Contractors Association, Inc. d/b/a General Construction Contractor Associates, Inc. Judge: FARMER First Paragraph: This appeal arises from a building contract dispute. Owner and the General Contractor disagreed on several issues of cost and construction. When the dispute could not be settled, the parties sued each other for breach of contract. The General Contractor was awarded a judgment and the Owner filed a 'Motion to Alter or Amend/New Trial' not signed by the Owner's trial attorney. The General Contractor filed a 'Motion to Strike' the Owner's motion, stating that an 'attorney of record' had not filed the motion within the required period. Upon receiving a copy of the General Contractor's motion, the Owner's trial lawyer signed the motion. Nevertheless, the trial court granted the 'Motion to Strike.' On appeal, Owner argued that an undisputed 'attorney of record' had signed the motion as permitted under the Tennessee Rules of Civil Procedure. We agree that the trial court's granting of the 'Motion to Strike' was in error and remand this case for consideration of the Owner's 'Motion to Alter or Amend/New Trial.' http://www.tba.org/tba_files/TCA/generalconstr.wpd RUSSELL GRAVES, et al. v. KRAFT GENERAL FOODS Court:TCA Attorneys: Harold R. Gunn, Humboldt, Tennessee, for the appellants, Russell Graves and Beverly Cross. James T. Ryal, Jr., Humboldt, Tennessee, for the appellee, Kraft General Foods. Judge: FARMER First Paragraph: This appeal arises from an appeal made from general sessions court to chancery court. The appellee, Kraft General Foods (Kraft), appealed a general sessions judgment to chancery court. Appellants, Mr. Graves and Ms. Cross, filed motions to dismiss, while Kraft filed a motion to transfer to circuit court. The chancery court denied the motions to dismiss and granted the motion to transfer. On review, we find that the chancery court lacked any subject matter jurisdiction over the appeal. In addition, we find no statutory authority providing for chancery court to transfer such appeals. As such, Kraft did not make a timely appeal of the general sessions judgment. The circuit court's denial of the motions to dismiss is reversed. http://www.tba.org/tba_files/TCA/gravesr.wpd PURCHASED PARTS GROUP, INC. v. ROYAL APPLIANCE MANUFACTURING COMPANY Court:TCA Attorneys: S. Russell Headrick, Joseph M. Koury, Memphis, for Appellant Frank L. Watson, III, Memphis; Eric L. Zalud, Cleveland, OH, for Appellee Judge: HIGHERS First Paragraph: This appeal involves a dispute over jurisdiction. The court below dismissed the case for lack of personal jurisdiction over the defendant, Royal Manufacturing Corporation. Appellant Purchased Parts Group, Inc. appeals from the trial court's decision. http://www.tba.org/tba_files/TCA/purchasedparts.wpd CHRISTYAL DARLENE SIMMONS (VAN DYKE) v. JIMMIE DALE SIMMONS Court:TCA Attorneys: Jerald M. Campbell, Jr., Trenton, Tennessee, for the appellant, Jimmie Dale Simmons. Judge: FARMER First Paragraph: This appeal arises from a petition by a non-custodial Father for a modification of his child support obligation. After several delays, the court refused to modify the Father's obligation on the basis that he had fallen behind on his support payments between the filing of the petition and the date upon which the court finally considered the matter. In addition, the trial court found him in contempt of court for failing to make his payments and ordered his incarceration. On appeal, Father argues that the trial court improperly refused to modify his child support obligation upon his first request. In addition, he asks that this court vacate the contempt ruling on the basis that he did not willfully disobey the court's order. We remand to the trial court for a modification of the Father's child support obligation based on his current income and order this modification prospectively applied from the date of his first petition. We also vacate the trial court's contempt ruling. http://www.tba.org/tba_files/TCA/simmonscd.wpd STEPHEN R. STAMPS v. VICTORIA L. DIBONAVENTURA Court:TCA Attorneys: Stephen R. Stamps, pro se Victoria L. Dibonaventura, pro se Judge: HIGHERS First Paragraph: This case arises from the Appellee's legal representation of the Appellant in a Petition for Post Conviction Relief. The Appellant's Petition was denied by the Criminal Court of Henry County and the Court of Criminal Appeals. After denial of his Application for Permission to Appeal by the Tennessee Supreme Court, the Appellant filed a Complaint of Legal Malpractice with the Circuit Court of Henry County. The trial court dismissed the Appellant's Complaint following a Motion to Dismiss filed by the Appellee. The Appellant appeals from the dismissal of his Complaint filed in the Circuit Court of Henry County. For the reasons stated herein, we affirm the trial court's decision. http://www.tba.org/tba_files/TCA/stampsstephen.wpd ALFRED TOMPKINS, et al. v. ANNIE'S NANNIES, INC., et al. Court:TCA Attorneys: Brian S. Miller and Justin Ross, Memphis, Tennessee, for the appellants, Alfred Tompkins and Jacqueline Tompkins, Individually, Guardians and Next Friends of Alexandria Tompkins, a minor. Dixie White Ishee, Memphis, Tennessee, for the appellees, Annie's Nannies, Inc., Joyce Tockey, Ann Devos, Alice Hunter, Taressia R. Simpson and Clay Morgan. Judge: FARMER First Paragraph: Plaintiffs' nine year old child, Alexandria, while under the direction of her day care center, broke both kneecaps while participating in a downhill race. Plaintiffs sued the day care center on a negligence theory, arguing that the day care center breached their duty of care. The trial court directed a verdict for the day care center, finding that the injuries sustained by the nine year old were not foreseeable, and, thus, no duty of care arose. Additionally, at trial, plaintiffs' counsel made an offer of proof whereby testimony was introduced that two girls fell and bumped heads in a race immediately preceding Alexandria's. The trial court excluded this testimony from the jury. Plaintiffs allege error. We affirm. http://www.tba.org/tba_files/TCA/tompkinsa.wpd JERRY WORRELL, et al. v. ANN WORRELL Court:TCA Attorneys: G. Griffin Boyte, Humboldt, Tennessee, for the appellants, Jerry Worrell, Herbert Worrell and Bobby Sutton. W. Douglas Sweet, Angela R. Merideth and Clinton J. Simpson, Memphis, Tennessee, for the appellee, Ann Worrell. Judge: FARMER First Paragraph: This appeal arises from a dispute over insurance proceeds between Nephews, as remaindermen of their Aunt's life estate, and their Aunt, as the life tenant of certain property. The trial court awarded the Aunt sole rights to insurance proceeds obtained after the destruction of that property to the exclusion of the Nephews. The Nephews appeal that ruling as well as the trial court's omission of certain hearsay testimony, and its failure to award them declaratory judgment. We affirm the rulings of the trial court. http://www.tba.org/tba_files/TCA/worrellj.wpd STATE OF TENNESSEE v. MICHAEL EISOM Court:TCCA Attorneys: J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Michael Eisom. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted by a Lauderdale County jury of attempted second degree murder. The trial court sentenced the defendant to eleven years in the Department of Correction as a Range I, standard offender. In this appeal as of right, the defendant asserts the following errors: (1) that the evidence was not sufficient to convict him; and (2) that his sentence was excessive. After a thorough review of the record, we conclude the evidence was sufficient, as a matter of law, for a rational trier of fact to find the defendant guilty of attempted second degree murder, and the trial court properly sentenced the defendant. We, therefore, affirm the defendant's conviction and sentence. http://www.tba.org/tba_files/TCCA/eisomm.wpd STATE OF TENNESSEE v. SAMUEL PEGUES Court:TCCA Attorneys: Daniel J. Taylor, Jackson, Tennessee, for appellant, Samuel Pegues. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Jerry Woodall, District Attorney General; and Donald H. Allen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Samuel Pegues, was convicted of second degree murder after a jury trial. In this appeal as of right, the Defendant asserts that the evidence presented at trial is insufficient to sustain his conviction, that the trial court erred by denying proposed testimony regarding statements made by the victim on the night of the incident, and that the trial court erred by excluding the Defendant's testimony regarding statements made by the victim that she had stabbed or cut someone. We conclude that the evidence is sufficient to sustain the conviction, that the trial court did err by denying the proposed testimony of statements made by the victim but that such error was harmless, and that the Defendant has waived his issue regarding the statements of the victim that she had stabbed or cut someone. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/peguess.wpd STATE OF TENNESSEE v. JERRY W. RODGERS Court:TCCA Attorneys: A C Wharton, Jr., Public Defender; Tony N. Brayton, Assistant Public Defender (on appeal); and Mozella Ross, Assistant Public Defender (at trial), for the appellant, Jerry W. Rodgers. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Glen Baity, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted of reckless homicide and sentenced to eight years as a Range II, multiple offender. On appeal, the defendant raises the issue of whether the trial court erred in relying on New York convictions as prior felonies in order to sentence him as a multiple offender. After review, we conclude that the record does not support the trial court's finding that the New York convictions qualified as prior felonies for sentencing purposes. Accordingly, we reverse, and remand the case to the trial court for resentencing. http://www.tba.org/tba_files/TCCA/rodgersjw.wpd STATE OF TENNESSEE v. MICHAEL W. SMITH Court:TCCA Attorneys: Stephen L. Hale, Bolivar, Tennessee, for the appellant, Michael W. Smith. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; Elizabeth Rice, District Attorney General, and Walt Freeland, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Michael W. Smith, appeals as of right from the trial court's denial of post-conviction relief. On appeal, he asserts that his conviction for escape, which was entered pursuant to his guilty plea, should be set aside because the plea was entered involuntarily due to his trial counsel's ineffectiveness. We conclude that the trial court properly denied relief based on its findings that the Defendant received effective assistance of counsel and that he entered the plea knowingly and voluntarily. Accordingly, we affirm the denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/smithmw.wpd STATE OF TENNESSEE v. MARGARET REE SOMERVILLE Court:TCCA Attorneys: Rosella M. Shackelford, for the appellant, Margaret Ree Somerville. Paul G. Summers, Attorney General & Reporter, Kim R. Helper, Assistant Attorney General, Robert "Gus" Radford, District Attorney General, Steve Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: CLARK First Paragraph: Defendant Margaret Ree Somerville was convicted by a jury of one count of possession of cocaine with intent to sell or deliver, a Class B felony, and one count of possession of drug paraphernalia, a Class A misdemeanor. Following a sentencing hearing, the trial court imposed a sentence of twelve (12) years on the felony offense and eleven (11) months, twenty-nine (29) days on the misdemeanor offense. The sentences were run concurrent to one another. Defendant challenges her convictions, asserting that (1) she was denied her right to the timely appointment of counsel; (2) the indictments against her were defective and should be quashed; and (3) the search warrant executed in this case was defective. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/somerville.wpd STATE OF TENNESSEE v. JASON M. WEISKOPF Court:TCCA Attorneys: Leslie I. Ballin and Mark A. Mesler, Memphis, Tennessee, for the appellant, Jason M. Weiskopf. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; William L. Gibbons, District Attorney General; and Thomas D. Henderson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: This case is before the court upon remand from the Supreme Court of Tennessee for reconsideration in light of State v. Nichols, ___ S.W.3d ___ (Tenn. 2000). Previously, this court found the "weigh and consider" jury instruction to be in violation of due process. Nichols reached a contrary conclusion; therefore, we now affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/weiskopfjason.wpd Telephone Cooperative By-Laws Date: September 19, 2000 Opinion Number: 00-143 http://www.tba.org/tba_files/AG/OP143.pdf Authorization by private property owners to tow or store vehicles Date: September 19, 2000 Opinion Number: 00-144 http://www.tba.org/tba_files/AG/OP144.pdf Franchise Agreement by City of Franklin Date: September 20, 2000 Opinion Number: 00-145 http://www.tba.org/tba_files/AG/OP145.pdf Tennessee Technology Corridor Development Authority Act Date: September 22, 2000 Opinion Number: 00-146 http://www.tba.org/tba_files/AG/OP146.pdf Lawful Commands of Police Date: September 26, 2000 Opinion Number: 00-147 http://www.tba.org/tba_files/AG/OP147.pdf Board of Zoning Appeals' Modification of Zoning Variance Date: September 29, 2000 Opinion Number: 00-148 http://www.tba.org/tba_files/AG/OP148.pdf Memphis School District, Validity of 1970 Private Acts, Ch. 30 Date: October 4, 2000 Opinion Number: 00-149 http://www.tba.org/tba_files/AG/OP149.pdf Duties of Public Housing Authority Officers Date: October 5, 2000 Opinion Number: 00-150 http://www.tba.org/tba_files/AG/OP150.pdf Transfer of Director of Schools Date: October 5, 2000 Opinion Number: 00-151 http://www.tba.org/tba_files/AG/OP151.pdf County Purchasing Law of 1957 Date: October 6, 2000 Opinion Number: 00-152 http://www.tba.org/tba_files/AG/OP152.pdf County employee - member of county legislative body Date: October 9, 2000 Opinion Number: 00-153 http://www.tba.org/tba_files/AG/OP153.pdf County's Duty to Accept Waste Tires for Storage Under Tenn. Code Ann. S 68-211-866 Date: October 10, 2000 Opinion Number: 00-154 http://www.tba.org/tba_files/AG/OP154.pdf 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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