November 30, 2000 Volume 6 -- Number 194 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 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 03 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 STATE OF TENNESSEE v. FREDERICK BEAUREGARD Court:TSC Attorneys: C. Michael Robbins, Memphis, Tennessee, and Gary F. Antrican, District Public Defender, Somerville, Tennessee, for the appellant Frederick Beauregard. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; Elizabeth Rice, District Attorney General; and Jerry Norwood, Assistant District Attorney, for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: In this appeal, we consider whether the constitutional principle of either double jeopardy or due process is violated and therefore bars separate convictions for both rape and incest when the offenses arise from a single act committed against the same victim. The Court of Criminal Appeals affirmed the defendant's convictions for rape and incest. After our review of the record and applicable authorities, we conclude that the separate convictions for rape and incest did not violate double jeopardy principles under the United States or Tennessee Constitutions because the offenses require different elements, different evidence, and have different purposes. We also conclude that the convictions for rape and incest did not violate due process under the United States or Tennessee Constitutions because neither offense was "essentially incidental" to the other. Accordingly, we affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/beauregd.wpd CASSANDRA LYNN LIPSCOMB v. JOHN DOE WITH CONCURRING/DISSENTING OPINION Court:TSC Attorneys: A. Wilson Wages, Millington, Tennessee, for the appellant, Cassandra Lynn Lipscomb. Fred P. Wilson, Memphis, Tennessee, and Stuart A. Wilson, Memphis, Tennessee, for the appellee, Amerisure Companies. John A. Day, Nashville, Tennessee, and John D. Wood, Nashville, Tennessee, for amicus curiae, Tennessee Trial Lawyers Association. Judge: BARKER First Paragraph: The primary issue in this case is whether a plaintiff properly initiates suit pursuant to the "John Doe" provisions of the uninsured motorist statutes when (1) the plaintiff is aware that the driver of the other vehicle is one of several persons, but (2) the plaintiff does not actually know which of the other possible drivers was responsible for the accident. The trial court dismissed the original "John Doe" complaint, finding that because the plaintiff was aware the other driver was one of three people, the other driver was not "unknown" within the meaning of the "John Doe" provisions. The trial court also denied the plaintiff's motion to amend her complaint pursuant to Tennessee Rule of Civil Procedure 15 and Tennessee Code Annotated section 20-1-119. The Court of Appeals affirmed the dismissal of the "John Doe" complaint, holding that because the plaintiff was not entitled to a remedy against the actual uninsured motorists, then she was also without a remedy against her insurance carrier. Upon review of the record and the applicable legal authority, we hold that the plaintiff's suit was properly commenced under the "John Doe" provisions of the uninsured motorist statutes. The judgment of the Court of Appeals is reversed, and this case is remanded to the Shelby County Circuit Court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/lipscomb_opn.wpd CONCURRING/DISSENTING OPINION http://www.tba.org/tba_files/TSC/lipscomb_con.wpd MAE BEAVERS, et al. v. THE LEBANON DEMOCRAT NEWSPAPER, et al. Court:TCA Attorneys: Ernest W. Williams, Dana C. McLendon, III, for Appellants Alfred H. Knight, Alan D. Johnson, for Appellees Judge: HIGHERS First Paragraph: This appeal arises from an action initiated by Plaintiffs, Mae and Jerry Beavers, against the Defendant newspaper, the Lebanon Democrat, for libel and slander. The Beavers' claim arises out of two separate articles published by the newspaper. The trial court granted the newspaper's motion for summary judgment, holding that the first article was substantially true and the second article was a non-actionable opinion. The Beavers appeal. http://www.tba.org/tba_files/TCA/beaversmae.wpd GENERAL BANCSHARES, INC. v. VOLUNTEER BANK & TRUST Court:TCA Attorneys: C. Dewees Berry, IV, and Susan W. Foxman, Nashville, Tennessee, for the appellant, General Bancshares, Inc. Tracy C. Wooden, Chattanooga, Tennessee, for the appellee, Volunteer Bank & Trust. Judge: SWINEY First Paragraph: The Plaintiff, General Bancshares, Inc., filed a declaratory judgment action asking the Trial Court to declare a restrictive covenant in its warranty deed unenforceable. Defendant Volunteer Bank & Trust's predecessor in title of the property at issue originally placed the restriction on the property several years ago. Plaintiff contends, among other arguments, that the restrictive covenant does not bind it as a remote grantee because the restrictive clause does not contain specific "successors and assigns" language. Both parties filed Motions for Summary Judgment, and the Trial Court granted Defendant's Motion. Plaintiff appeals. We affirm. http://www.tba.org/tba_files/TCA/genbancshares.wpd FRED HODGES v. TENNESSEE ATTORNEY GENERAL, et al. Court:TCA Attorneys: Fred Hodges, Nashville, Tennessee, Pro Se, appellant. No Response on behalf of the Tennessee Attorney General, the Commissioner of Correction, and the Tennessee Department of Correction. Judge: KOCH First Paragraph: This appeal arises from the dismissal of a prisoner's pro se complaint for failure to prosecute. The Chancery Court for Davidson County dismissed the complaint eleven months after it was filed because the prisoner had failed to provide summonses and copies of the complaint for service on the defendants. The prisoner has appealed to this court. Instead of arguing that the trial court erred by dismissing his complaint for failure to prosecute, the prisoner has simply renewed the assertions he made in the trial court that his sentence credits have been calculated incorrectly and that he should be released on parole. We determined that the trial court properly dismissed the complaint for failure to prosecute. http://www.tba.org/tba_files/TCA/hodgesf.wpd ROGER EDWARD KENNEDY v. DELORES RAE ROSE KENNEDY Court:TCA Attorneys: Robert L. Jackson and Robert Todd Jackson, Nashville, Tennessee, for the appellant, Roger Edward Kennedy. Mary Frances Lyle, Nashville, Tennessee, for the appellee, Delores Rae Rose Kennedy. Judge: KOCH First Paragraph: This appeal involves a man's efforts to use his voluntary early retirement as a basis for ending his spousal support obligation. Three years after the divorce, the man filed a petition in the Circuit Court for Davidson County seeking to end his responsibility to pay child support. His former wife responded by filing a petition seeking to hold him in contempt for failure to pay spousal support. Following a bench trial, the trial court dismissed the man's petition, held him in contempt, and entered a $3,106 judgment against him for back spousal support. On this appeal, the man asserts that the trial court erred by declining to relieve him of his alimony obligation because of his inability to pay and his former spouse's lack of need. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCA/kennedyre.wpd WENDELL O. MANDRELL, ET UX, et al. v. WILLIAM T. MCBEE, et al. Court:TCA Attorneys: William Kennerly Burger, Murfreesboro, Tennessee, for the Appellant Marshall Preston Sweeney. G. Sumner R. Bouldin, Jr., Murfreesboro, Tennessee, for the Appellees Wendell O. Mandrell and Patrick T. Vaden. Judge: SWINEY First Paragraph: This is a partnership dispute occasioned by the misappropriation of partnership funds by two of the five partners. In an earlier appeal in this case, this Court affirmed the judgment of the Trial Court awarding damages to the innocent partners but increased the amount of that judgment. This Court then remanded the case to the Trial Court, which heard further proof and made findings as to the distribution of partnership assets. In this appeal, a Defendant partner seeks reversal of the Trial Court's valuation and accounting of the partnership assets and computation of prejudgment interest. We find the concurrent findings of fact by the Special Master and the Trial Court are supported by material evidence in the record, and that the Special Master and the Trial Court properly interpreted this Court's earlier Opinion. Accordingly, we affirm the decision of the Trial Court in all respects. http://www.tba.org/tba_files/TCA/mandrellw.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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