November 29, 2000 Volume 6 -- Number 193 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):   02 New Opinion(s) from the Tennessee Supreme Court 01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 14 New Opinion(s) from the Tennessee Court of Appeals 04 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 STATE OF TENNESSEE v. JOHN C. GARRISON Court:TSC Attorneys: Michael E. Moore, Solicitor General, Michael J. Fahey, II, Assistant Attorney General, James Michael Taylor, District Attorney General, and James W. Pope, III, Assistant District Attorney General, for the appellant, State of Tennessee. Gregory P. Isaacs, Knoxville, Tennessee, for the appellee, John Clark Garrison. Judge: BIRCH First Paragraph: The defendant, John C. Garrison, was convicted by a jury of solicitation to commit first degree murder. In this appeal, he raises two issues: (1) whether trial counsel's failure to communicate a plea bargain offer from the State is per se prejudicial to the extent necessary to satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); and (2) whether the trial court committed reversible error when it failed to instruct the jury that the "request," as used in the statutory definition of the offense of solicitation, must be intentional. After a thorough consideration of the record and a full review of the authorities, we conclude that trial counsel's failure to communicate a plea bargain offer does not demonstrate, alone, prejudice sufficient to satisfy the second prong of Strickland. We conclude also that the trial court's omission of certain required language from the jury instruction constitutes harmless error. The judgment of the Court of Criminal Appeals is, therefore, reversed and the case is dismissed. http://www.tba.org/tba_files/TSC/garrisonj.wpd JAMESENA WHITE, et al. v. REVCO DISCOUNT DRUG CENTERS, INC. Court:TSC Attorneys: A. Philip Lomonaco, Knoxville, Tennessee, for the appellants, Jamesena White, Michael L. Woodfin, James E. Woodfin, Jr., Cheryl W. Bobbit, Jacqueline D. Woodfin, Joyce C. Woodward, and Roderick Woodfin, as next of kin and heirs of James E. Woodfin, deceased. Ronald T. Hill, Knoxville, Tennessee, for the appellee, Revco Discount Drug Centers, Inc. Judge: BARKER First Paragraph: We granted permission to appeal in this case to address whether a private employer may be held liable for the negligent actions of an off-duty police officer who was hired by the employer for private security purposes. In the circuit court, the defendant employer moved to dismiss the plaintiffs' wrongful death action for failure to state a claim, and the motion was granted by the trial judge. The Court of Appeals affirmed the dismissal, holding that the actions of the off-duty officer were taken in furtherance of his official duties as a peace officer, and therefore, the defendant employer could not be held liable for the officer's negligent actions. After reviewing the complaint in this case, along with the applicable legal authority, we hold that the complaint does state a claim against the defendant employer for the negligence of the off-duty officer. The judgment of the Court of Appeals is reversed, and the case is remanded to the Knox County Circuit Court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/whitej.wpd PATRICIA BALDWIN VS. WALDENBOOK COMPANY, INC., Court:TSC - Workers Comp Panel Attorneys: Richard E. Spicer, Spicer, Flynn, & Rudstrom, PLLC, Nashville, TN, for the appellants, Waldenbook Company, Inc. Scott Daniel, Murfreesboro, TN, for the appellee, Patricia Baldwin. Judge: CLEMENT First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with the Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. The employer contends the trial court erred in finding that the statute of limitations was tolled and that suit was timely filed. As discussed below, the panel has concluded that the judgment of the trial court should be affirmed, finding that suit was timely filed. http://www.tba.org/tba_files/TSC_WCP/baldwin.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_1127.wpd MARK ADDAMAN, et al. v. GWENDOLYN R. LANFORD Court:TCA Attorneys: Jon G. Roach, Knoxville, Tennessee, for the Appellant, Gwendolyn R. Lanford. Jay W. Mader, Knoxville, Tennessee, for the Appellees, Mark and Cathalena Addaman. Judge: SWINEY First Paragraph: Plaintiffs, residential sellers, sued an appraiser for negligent misrepresentation and breach of contract when her appraisal was far below the contract sales price of their home. The sales contract was contingent upon the appraised value being equal at least to the sales price. The buyers declined to purchase the home based on the failure of that contingency. Defendant moved for a directed verdict because the appraisal was performed at the request of and for the benefit and guidance of the mortgagor and not the seller, and because the sellers did nothing in reliance upon the appraisal. The Trial Court denied the motion for a directed verdict on the negligent misrepresentation theory. The jury returned a verdict in favor of the Plaintiffs. Recovery for the tort of negligent misrepresentation requires that the information provided by the Defendant be given for the Plaintiffs' benefit and guidance and that the Plaintiffs justifiably rely on that information. While Plaintiffs were affected by the appraisal, it was not done for their benefit and guidance, and they did not justifiably rely upon the information. Therefore, Plaintiffs have no cause of action against the appraiser for negligent misrepresentation. The judgment is reversed, and the Complaint is dismissed. http://www.tba.org/tba_files/TCA/addamanm.wpd HAROLD ANGUS v. WESTERN HERITAGE INSURANCE COMPANY Court:TCA Attorneys: John S. Little, Jackson, Tennessee, for the appellant, Western Heritage Insurance Company. Phillip L. Davidson, Nashville, Tennessee, for the appellee, Harold Angus. Judge: FARMER First Paragraph: This appeal arises from a dispute between Contractor and Insurer over insurance coverage during a building demolition project. During the project, Contractor knowingly damaged an adjacent structure. When suit was brought against Contractor by the owners of the adjacent structure, Insurer refused coverage. The trial court found Insurers' policy and endorsement to be ambiguous and thus unenforceable. We disagree, finding that the policy and endorsement are not ambiguous and that they clearly state that Insurer will provide no coverage for intentional damage to other structures. We reverse the trial court's ruling and find that Insurer is not liable under the policy. http://www.tba.org/tba_files/TCA/angusharold.wpd A. W. BREWER v. FI-SHOCK, INC. Court:TCA Attorneys: Lynn Tarpy and Thomas M. Leveille, Knoxville, Tennessee, for the appellant Fi-Shock, Inc. D. Scott Hurley, Knoxville, Tennessee, for the appellee, A. W. Brewer Judge: GODDARD First Paragraph: This is a Rule 9 interlocutory appeal for a determination as to whether federal district court had exclusive subject matter jurisdiction to hear this matter. The Appellee filed suit in Circuit Court averring that he was the owner of an invention known as "The Boss", and he had entered into a License Agreement with Fi-Shock, Inc., in which Fi-Shock agreed to manufacture, market and sell "The Boss" and compensate Mr. Brewer, and that Fi-Shock breached the agreement. Mr. Brewer further averred that Fi-Shock intentionally interfered with his property rights, thereby denying him compensation to which he was entitled and that his invention was protected by a United States Patent. Mr. Brewer sued for compensatory damages not to exceed $1,000,000. Fi-Shock filed a motion to dismiss averring that only the United States District Court had subject matter jurisdiction under 28 U.S.C. S 1338(a). The trial court denied the motion. Defendant sought an Rule 9 interlocutory appeal which was granted by the Trial Court and this Court. We affirm the decision of the Trial Court. http://www.tba.org/tba_files/TCA/breweraw.wpd SONNY N. GILLIAM, deceased by next friend, wife and personal representative, RUTH M. GILLIAM and RUTH GILLIAM, individually VS. LORIANN CALCOTT and, GARRY CALCOTT and JERRY W. GILLIAM, SHEILA ANN CAWOOD, ROGER DALE GILLIAM, SALLY ANN HARRELL, and GLEN ALLEN GILLIAM, CORRECTION Court:TCA Attorneys: John S.Bingham, Kingsport, Tennessee, for Intervenors/Appellants. William K. Rogers, Kingsport, Tennessee, for Plaintiff/Appellee. Judge: GODDARD First Paragraph: Sonny N. Gilliam was killed in a traffic accident. He was survived by his widow, Ruth M. Gilliam - with whom he had no children - and by five adult children of his first marriage. http://www.tba.org/tba_files/TCA/gilliamson.wpd PAM HAMBLEN v. RICHARD DAVIDSON Court:TCA Attorneys: David L. Hamblen, Union City, for appellant, Pam Hamblen Damon E. Campbell, Union City, for appellee, Richard Davidson Judge: CRAWFORD First Paragraph: This appeal arises from a personal injury suit in which Plaintiff alleged that her ex-husband had negligently infected her with the virus which causes genital herpes. The trial court granted Defendant's motion for summary judgment, finding that: (1) the one-year statute of limitations, T.C.A. S 28-3-104, barred Plaintiff's claim; (2) Plaintiff failed to establish that Defendant knew or should have known he had herpes, and owed her a duty to warn her of his condition; and (3) Plaintiff failed to establish that she contracted the virus from Defendant. Plaintiff appeals. http://www.tba.org/tba_files/TCA/hamblenpam.wpd DONNIE WAYNE JOHNSON, JR. v. CENTEX FORCUM LANNOM, INC., et al. Court:TCA Attorneys: Jeffrey A. Garrety, Jackson, Tennessee, and Tanda R. Grisham, Jackson, Tennessee, for the appellant Donnie Wayne Johnson, Jr. DeWitt M. Shy, Jr., Memphis, Tennessee, and G. Bailey Leopard, Memphis, Tennessee, for the appellant, Coreslab Structures, Inc. Carl Wyatt, Jr., Memphis, Tennessee, and James F. Horner, Memphis, Tennessee, for the appellees, Centex Forcum Lannom, Inc. and Tyson Foods, Inc. Judge: FARMER First Paragraph: This appeal arises from an injury by Worker who fell through a hole in the roof while working on a construction site. Worker brought suit against the Owner, the General Contractor and Builder, who through its construction of precast concrete panels had created the hole. The trial court granted Owner and General Contractor summary judgment on the basis that both were acting in the capacity of a general contractor and were thus exempt from suit under the workers' compensation statutes. Builder, even through it no longer had control of the area where Worker was injured, was denied summary judgment on the basis that OSHA regulations created a non-delegable duty to prevent injuries. We affirm the trial court's granting of summary judgment to Owner and General Contractor. We reverse the trial court's denial of summary judgment for Builder, finding that OSHA regulations do not create a duty for Builder. http://www.tba.org/tba_files/TCA/johnsondonniew.wpd In Re ESTATE OF W.O. McINTYRE, DECEASED, MIKE BROWDER, ADMINISTRATOR, C.T.A. TERESA BURNS and STACEY KEITH McINTYRE v. JANE McINTYRE AND MIKE BROWDER Court:TCA Attorneys: Judge: LILLARD First Paragraph: This is a will contest. The decedent committed suicide after writing several notes in which he expressed his wish that the bulk of his estate pass to his wife of eighteen years, with specific bequests to his children. The decedent's children contested the validity of the disposition, arguing that the decedent lacked testamentary capacity to execute a will at the time that he wrote the notes. After a jury trial, the jury found that the decedent had testamentary capacity and that the handwritten notes constituted a valid holographic will. The children appeal, arguing that the burden of proving testamentary capacity should have been placed on the will's proponents, due to the decedent's depression and resulting suicide, and that the evidence did not support the jury's verdict. We affirm, finding that the trial court did not err in its instructions on the burden of proof and that there is material evidence to support the jury's verdict. http://www.tba.org/tba_files/TCA/mcintyrewestate.wpd RHONDA GALE PHILLIPS MOFFITT v. PAUL SIDNEY MOFFITT Court:TCA Attorneys: Lloyd R. Tatum, Henderson, For Appellant, Paul Sidney Moffitt Joe H. Byrd, Jr., Jackson, For Appellee, Rhonda Gale Phillips Moffitt Judge: CRAWFORD First Paragraph: In this divorce case, Husband appeals the trial court's final decree as it deals with the division of marital property, the division of marital debt (including crediting Wife for monies spent prior to the sale of the marital home), and child support arrearages. We affirm. http://www.tba.org/tba_files/TCA/moffittrho.wpd DOUGLAS R. SHANKLIN, M.D. v. UT MEDICAL GROUP, INC. Court:TCA Attorneys: Donald A. Donati, Memphis, Tennessee, and William B. Ryan, Memphis, Tennessee, for the appellant, Douglas R. Shanklin, M.D. Bradley E. Trammell, Memphis, Tennessee, for the appellee, UT Medical Group, Inc. Judge: FARMER First Paragraph: This appeal arises from a trial court's finding that a subsequent action by Doctor was barred under the doctrine of res judicata due to the court's decision in an earlier case. On appeal, Doctor argued that his earlier action for age discrimination and retaliation in violation of the Tennessee Human Rights Act was not the same as the current action, which involves breach of contract and unjust enrichment. We affirm the trial court's ruling. http://www.tba.org/tba_files/TCA/shanklindouglasr.wpd STATE OF TENNESSEE v. DEMETRIUS LEVAR MCNEIL Court:TCA Attorneys: Mark A. Mesler, Memphis, For Appellant, Demetrius Levar McNeil Paul G. Summers, Attorney General & Reporter Kim R. Helper, Assistant Attorney General, For Appellee, State of Tennessee Judge: CRAWFORD First Paragraph: Juvenile convicted in criminal court in de novo trial of appeal from juvenile court appeals the criminal court order denying his motion pursuant to Tenn.R.Crim.P. 36 to correct a clerical error. Juvenile asserts that although the criminal court ruled that there was no clerical error, the criminal court, in failing to remand the case to a juvenile court, committed plain error for which relief should be granted. Upon finding that the criminal court had no jurisdiction to retain the case, the case is remanded to the criminal court to modify the sentencing order by remanding to the juvenile court. http://www.tba.org/tba_files/TCA/statemcneil.wpd LINDA MAY TAYLOR v. JAMES ARNOLD TAYLOR Court:TCA Attorneys: Randy Sellers, Cleveland, Tennessee, for the appellant, James Arnold Taylor. Robert S. Thompson, Cleveland, Tennessee, for the appellee, Linda May Taylor. Judge: SWINEY First Paragraph: This appeal arises from a divorce in which the Trial Court awarded Linda May Taylor ("Wife"), age 58, alimony until she reaches age 65 or she retires, whichever occurs first. Wife was also awarded the parties' home. The Trial Court granted James Arnold Taylor ("Husband"), age 61, his interest in the marital home but ordered that Wife does not have to pay Husband for his interest in the marital home until Wife reaches age 65. Husband appeals. We affirm. http://www.tba.org/tba_files/TCA/taylorlm.wpd THE POINTE, LLC, et al. v. LAKE MANAGEMENT ASSOCIATION, INC. Court:TCA Attorneys: David L. Leake, Memphis, For Appellants David M. Dunlap, Memphis, For Appellants Robert A. Cox; James F. Horner, Memphis, For Appellee Judge: CRAWFORD First Paragraph: This appeal arises from a declaratory judgment action to determine rights in a privately- owned lake. Plaintiffs purchased land adjacent to the artificially-created lake for the purpose of developing residential lots. Subsequent to the sale of the property, Plaintiffs' grantor conveyed title to the lake to Defendant. Defendant claims it has the right to control use of the lake and that Plaintiffs have no right to lake access without Defendant's permission. The trial court granted Defendant's motion for summary judgment on the grounds that: (1) the lake is unnavigable, and no riparian rights can therefore flow to adjoining landowners; (2) the Defendant, as owner of the land subjacent to the lake, has a right to the unimpeded use and control of the property; and (3) any use of the lake by the adjoining property owners without Defendant's consent would constitute a trespass. Plaintiffs appeal. http://www.tba.org/tba_files/TCA/thepointe.wpd JENNIFER PURCELL THOMAS v. STEPHEN ALEXANDER THOMAS Court:TCA Attorneys: David E. Caywood, Stacy A. Ingle, Memphis, For Appellant, Jennifer Purcell Thomas Dorothy J. Pounders, Memphis, For Appellee, Stephen Alexander Thomas Judge: CRAWFORD First Paragraph: In this divorce case, the trial court, among other things, made a division of marital property, awarded Wife alimony in solido, made an award of child support, and ordered payments of various debts by the parties. Both parties have appealed presenting issues concerning the court's above stated actions. http://www.tba.org/tba_files/TCA/thomasjp.wpd LAWRENCE O. WESTFALL v. BRENTWOOD SERVICE GROUP, INC. Court:TCA Attorneys: J. Christopher Hall and Jane M. Stahl, Chattanooga, Tennessee, for the appellant, Brentwood Service Group, Inc. Marvin Berke, Chattanooga, Tennessee, for the appellee, Lawrence O. Westfall. Judge: SUSANO First Paragraph: Lawrence O. Westfall filed suit against his former employer, Brentwood Service Group, Inc., seeking payment of post-employment commissions allegedly due him. The defendant counterclaimed for breach of a non-competition/non-disclosure agreement. Following a bench trial, the court below awarded post-employment commissions to the plaintiff and dismissed the defendant's counterclaim, finding that the parties had not agreed to the non-competition/non- disclosure agreement. The employer now appeals, claiming that the plaintiff is not entitled to post- employment commissions and that the trial court erred in failing to enforce the parties' alleged non- competition/non-disclosure agreement. We affirm. http://www.tba.org/tba_files/TCA/westfalllo.wpd STATE OF TENNESSEE v. MICHAEL S. JACKSON Court:TCCA Attorneys: A C Wharton, Jr., Shelby County Public Defender; Tony N. Brayton, Assistant Public Defender (on appeal); Amy Mayne, Assistant Public Defender (at trial); and Robert C. Felkner, Assistant Public Defender (at trial), for the appellant, Michael S. Jackson. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; Patience R. Branham, Assistant District Attorney General; and Scott D. Gordon, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted of aggravated robbery and sentenced to twelve years confinement as a standard, Range I offender. On appeal, the defendant argues that the evidence was insufficient to support the jury's verdict, and that the trial court erred in its application of sentencing enhancement factors. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/jacksonms.wpd JOHNNY BERNARD JONES v. STATE OF TENNESSEE Court:TCCA Attorneys: William S. Rhea, Somerville, Tennessee, for the Appellant, Johnny Bernard Jones. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Kim R. Helper, Assistant Attorney General, Elizabeth T. Riche, District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: This appeal follows dismissal of the Appellant's petition for post-conviction relief. The Appellant, Jones, was convicted by a Fayette County jury of possession of cocaine (over 26 grams) with intent to sell and possession of marijuana. On direct appeal, his convictions and sentences were affirmed. The Appellant filed this post-conviction petition asserting the following errors: (1) the trial court erred in not granting the Appellant's motion to sever; (2) the trial court erred in sentencing the Appellant; and (3) deficient representation by defense counsel including failing to timely file a Rule 11 application to the supreme court from this court's decision. We find that Appellant's defense counsel was ineffective with respect to his failure to timely file a Rule 11 application. Accordingly, the Appellant is granted the right to seek a delayed appeal to the Tennessee Supreme Court. Denial of post-conviction relief is affirmed as to the remaining issues. http://www.tba.org/tba_files/TCCA/jonesjb.wpd STATE OF TENNESSEE v. JERRY LANIER Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee and H. Tod Taylor, Assistant District Public Defender, Dyersburg, Tennessee, for the appellant, Jerry Lanier. Paul G. Summers, Attorney General and Reporter, Kim R. Helper, Assistant Attorney General, C. Phillip Bivens, District Attorney General, James E. Lanier, Assistant District Attorney General, and Karen Waddell Burns, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant entered a plea of nolo contendere to the charge of retaliation for past action, reserving a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). The trial court sentenced him to one year incarceration and ordered that the sentence run consecutively to previously imposed sentences. In this appeal, the Defendant presents his reserved certified question of law: whether Tennessee Code Annotated S 39-16-510, the statute under which he was convicted, is constitutional. We hold that the statute is constitutional and accordingly affirm the Defendant's conviction. http://www.tba.org/tba_files/TCCA/lanierj.wpd STATE OF TENNESSEE v. DANIEL SHANE MALONE Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter, Kim R. Helper, Assistant Attorney General, James G. Woodall, District Attorney General, and Shaun A. Brown, Assistant District Attorney General, for the appellant, State of Tennessee. Tony A. Childress, Assistant Public Defender, Jackson, George Morton Googe, District Public Defender; and Vanessa D. King, Assistant Public Defender, Jackson, Tennessee, for the appellee, Daniel Shane Malone. Judge: WEDEMEYER First Paragraph: The Defendant was indicted for statutory rape and contributing to the delinquency of a minor. The District Attorney General denied the Defendant's application for pretrial diversion. The trial court subsequently granted pretrial diversion. Pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, the trial court granted the State permission for an interlocutory appeal, and this Court allowed the State's appeal. On appeal, the State argues that the trial court erred in granting pretrial diversion. We agree that the trial court committed reversible error in granting pretrial diversion and remand to the circuit court for further proceedings. http://www.tba.org/tba_files/TCCA/maloneds.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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