December 8, 2000 Volume 6 -- Number 199 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 13 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 IN THE MATTER OF ALL ASSESSMENTS, REVIEW OF AD VALOREM ASSESSMENTS OF PUBLIC UTILITY COMPANIES FOR TAX YEAR 1998 OPINION ON PETITION TO REHEAR Court:TSC First Paragraph: If you or your clients engage in cyber-commerce, you need to know about registering domain names and what to do if someone else has laid claim to one you feel is rightfully yours. Also, find out why the Tennessee Inheritance Tax will soon be obsolete. Regular columnists cover international child abduction, why plaintiffs must bear the cost of immunity, and the humorous "legal smackdown on the Internet." http://www.tba.org/tba_files/TSC/allassessments.wpd HAROLD W. FERRELL, SR. v. CIGNA PROPERTY & CASUALTY INSURANCE CO., et al. Court:TSC Attorneys: William J. Butler and Frank D. Farrar, Lafayette, Tennessee, for the appellant, Harold W. Ferrell, Sr. Tyree B. Harris, IV and Alan D. Johnson, Nashville, Tennessee, for the appellees, Cigna Property & Casualty Insurance Co. and APAC-Tennessee, Inc. Judge: DROWOTA First Paragraph: This workers' compensation case presents two issues for review concerning the merits of the employee's claim for benefits. The first is whether this action is barred by the statute of limitations. The second is whether the preponderance of the evidence establishes that the employee's injury was work-related. The trial court ruled that the statute of limitations had expired, and it also addressed the merits and found that the employee failed to prove that his injury was work-related. We hold that the statute of limitations had not expired, and we further hold that the trial court's dismissal of the employee's claim should be affirmed on the merits because the evidence does not preponderate against the trial court's finding that the employee's injury was not work-related. In addition to the merits of this suit, we also granted review to determine the legality of the trial court's practice of referring workers' compensation cases to a clerk and master for trial. We hold that the proper procedure for appointing a special/substitute judge was not followed; however, reversal is not required because the Clerk and Master was acting as a de facto judge. http://www.tba.org/tba_files/TSC/ferrellhw.wpd REGINA HARRIS, et al. v. DR. ANDREW CHERN, et al. Court:TSC Attorneys: David L. Johnson, Gayle I. Malone, and Jeffrey Zager, Nashville, Tennessee, for the appellant, Baptist Hospital, Inc. C. Bennett Harrison and Gayle I. Malone, Nashville, Tennessee, for the defendant, Dr. Andrew L. Chern. Tricia Dennis, Chattanooga, Tennessee, for the appellees, Regina Harris and Ronnie Dale Netherton, Jr. Judge: HOLDER First Paragraph: We granted this appeal to determine the standard to be applied in ruling upon a Tenn. R. Civ. P. 54.02 motion to revise a grant of partial summary judgment based upon evidence beyond that which was before the court when the motion was initially granted. For the reasons stated below, we reject the newly discovered evidence rule applied by the trial court and set forth in Bradley v. McLeod, 984 S.W.2d 929 (Tenn. Ct. App. 1998). We adopt a test requiring the trial court to consider, when applicable: 1) the movant's efforts to obtain evidence to respond to the motion for summary judgment; 2) the importance of the newly submitted evidence to the movant's case; 3) the explanation offered by the movant for its failure to offer the newly submitted evidence in its initial response to the motion for summary judgment; 4) the likelihood that the nonmoving party will suffer unfair prejudice; and 5) any other relevant factor. Accordingly, we reverse the judgment of the Court of Appeals and remand to the trial court for application of this standard. http://www.tba.org/tba_files/TSC/harrisre.wpd NORTHLAND INSURANCE CO. v. STATE OF TENNESSEE Court:TSC Attorneys: James G. O'Kane, Knoxville, Tennessee, for the appellant, Northland Insurance Company. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Anthony D. Miller, Assistant Attorney General; Laura T. Kidwell, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: DROWOTA First Paragraph: The issue in this case is whether the Tennessee Claims Commission has subject matter jurisdiction over a claim against the State of Tennessee for contribution and indemnity. The jurisdiction of the Claims Commission is set forth in Tennessee Code Annotated section 9-8-307. That statute allows for suits against the State in the Claims Commission alleging that state employees have maintained a dangerous condition on a state maintained highway. The statute, however, does not mention contribution and indemnity suits as part of the Commission's jurisdiction. Because of the principle that a waiver of sovereign immunity must be clear and unmistakable, we conclude that the State has not consented to hear contribution and indemnity claims. We therefore affirm the Court of Appeals' decision dismissing the appellant's claim. http://www.tba.org/tba_files/TSC/northlandinsco.wpd ALLIED BUSINESS BROKERS, INC. v. ABRAHAM MUSA, et al. Court:TCA Attorneys: P. Preston Wilson, Memphis, for Appellant John F. Watson, Memphis, for Appellees Judge: HIGHERS First Paragraph: This appeal involves a breach of contract regarding a commission owed for the sale of a business. Allied, the broker, claims that Abed Amro owes it a commission based on the contract between the parties. Amro, however, claims that he is not liable under the Listing Agreement even though it is undisputed that he signed the contract. The trial court held that Allied was not entitled to a judgment against Amro because Amro did not have an ownership interest in the business that was sold. We reverse. http://www.tba.org/tba_files/TCA/alliedbusiness.wpd AMERICAN INDEMNITY COMPANY v. FOY TRAILER RENTALS, INC., et al. Court:TCA Attorneys: Charles W. Hill, Memphis, Tennessee; and Kimberly E. Sands, Memphis, Tennessee, for the appellants, Foy Trailer Rentals, Inc., Michael Rivalto, and Pamela Hinman. David S. Zinn, Brentwood, Tennessee, for the appellee, American Indemnity Company. Judge: FARMER First Paragraph: American Indemnity Company sought a declaratory judgment that its commercial general liability (CGL) policy did not cover claims made by Ms. Johnson against the Appellants in her federal court complaint and that it did not have a duty to defend Appellants in the federal action. The Chancery Court for Shelby County held that there was no coverage and no duty to defend. Appellants appealed. We affirm. http://www.tba.org/tba_files/TCA/americanIndemnity.wpd ROBERT J. BURTON v. KENT F. GEARIN Court:TCA Attorneys: Robert J. Burton, pro se Tim Edwards, James F. Horner, for the Appellee Judge: HIGHERS First Paragraph: The Appellee was appointed by the Circuit Court of Weakley County to represent the Appellant in his petition for post conviction relief. The circuit court denied the Appellant's petition, and the Tennessee Court of Criminal Appeals affirmed. The Appellant filed a complaint for legal malpractice against the Appellee. The Appellant also filed a motion to hold the matter in abeyance until he was released from prison. The trial court failed to rule on the motion for abeyance. The trial court entered summary judgment in favor of the Appellee. http://www.tba.org/tba_files/TCA/burtonrobtj.wpd JOSEPH F. CANEPARI, JR., et al. v. GEORGE D. SUMMERS, et al. Court:TCA Attorneys: John D. Horne, Memphis, for Appellants J. Houston Gordon, Covington, for Appellees Judge: HIGHERS First Paragraph: This is a suit for the partition of land. The Appellees brought a Complaint for Partition of Land by Sale in the Chancery Court of Fayette County. The Appellants answered and brought a counterclaim requesting the trial court to order the Appellees' one third-interest in the property to be partitioned by sale to the Appellants. The Chancery Court of Fayette County found for the Appellees, ordering the property to be sold by partition. http://www.tba.org/tba_files/TCA/caneparijoseph.wpd CONNIE JEAN GIVENS v. ED MULLIKIN, et al. Court:TCA Attorneys: Nathan W. Kellum, Memphis, For Appellant, Ed Mullikin, Administrator Ad Litem for the Estate of Larry McElwaney Leo Bearman, Jr., Robert M. Glover, Launice P. Sills, Memphis, For Appellant, Allstate Insurance Company William H. Fisher, III, Memphis, For Appellee, Connie Jean Givens Judge: CRAWFORD First Paragraph: Plaintiff filed this action against defendant in an underlying personal injury suit and the defendant's liability insurance carrier, alleging that the defendants are vicariously liable for the actions of the attorneys the insurance company hired pursuant to its policy to represent the insured in defense of plaintiff's personal injury suit. The complaint alleges that said attorneys were guilty of abuse of process, invasion of privacy, inducing the breach of a confidential relationship, inducing the breach of an implied contract of confidentiality, and inducing the breach of an express contract. The trial court denied defendants' motions to dismiss, and this case is before this Court on a Tenn.R.App.P. 9 interlocutory appeal. http://www.tba.org/tba_files/TCA/givenscon.wpd JEFFREY LEE HARRIS v. PERCY PITZER, et al. Court:TCA Attorneys: Jeffrey Lee Harris, pro se Tom Anderson, for Appellee Judge: HIGHERS First Paragraph: This case involves the incarceration of the Appellant in the state of Tennessee pursuant to a contract between the Wisconsin Department of Corrections and Corrections Corporation of America. The Appellant filed a Petition for Habeas Corpus Relief in the Circuit Court of Hardeman County. The trial court entered an order granting the Appellee's Motion to Dismiss for failure to state a claim upon which relief could be granted. http://www.tba.org/tba_files/TCA/harrisjeffreyl.wpd TAYLOR MEHRHOFF COMPANY, et al. v. BARBARA A. MCDANIEL, et al. Court:TCA Attorneys: Lee S. Saunders, Somerville, For Appellants, Taylor Mehrhoff Company, John B. Taylor, and Stan Mehrhoff Joel Porter, Memphis, For Appellees, Barbara A. McDaniel and Kenneth McDaniel Judge: CRAWFORD First Paragraph: Plaintiffs, Landowners, sued adjoining landowners, seeking a judgment determining the location of a disputed boundary line. The trial court found that Defendants had: (1) established record title to the disputed property; (2) established the boundary line in recorded deeds and trust deeds, and by the conduct, implied agreement, acquiescence and recognition of adjoining property owners; and (3) proven title by adverse possession of the disputed property. Plaintiffs-Landowners have appealed. http://www.tba.org/tba_files/TCA/mehrhofftay.wpd IN THE MATTER OF: ERIC DYLAN PETTY, A Child Under the Age of 18 Years Court:TCA Attorneys: C. Michael Robbins, Memphis; Joseph P. Atnip, Dresden, for Appellant, Eric Petty Paul G. Summers, Attorney General & Reporter, Kim R. Helper, Assistant Attorney General, Nashville, for State of Tennessee Judge: HIGHERS First Paragraph: This case involves an appeal regarding the lower court's determination that Eric Dylan Petty was a delinquent child. In February 2000, a petition was filed with the Juvenile Court of Obion County alleging that Eric Dylan Petty committed the delinquent acts of aggravated assault and vandalism. The juvenile court determined that Petty was delinquent and ordered him committed to the Tennessee Department of Children's Services. After a de novo hearing, the circuit court also declared Petty delinquent based on the acts of aggravated assault and vandalism and affirmed Petty's commitment to the Department of Children's Services. This appeal followed. http://www.tba.org/tba_files/TCA/pettyeric.wpd ROBINSON PROPERTY GROUP, L.P. D/B/A HORSESHOE CASINO AND HOTEL v. YO ANNE RUSSELL Court:TCA Attorneys: David A. Kirkscey, Memphis, for Appellant Lawrence R. White, Memphis, for Appellee Judge: HIGHERS First Paragraph: This case arises out of a $23,800.00 debt incurred by appellee Yo Anne Russell at the Horseshoe Casino and Hotel in Robinsonville, Mississippi. The court below granted summary judgment to Yo Anne Russell because the court held that the debt represented by the drafts is unenforceable in Tennessee due to public policy considerations embodied in section 29-19-101 of the Tennessee Code. Plaintiff appeals from the court below, arguing that the trial court erred in granting summary judgment to Defendant Yo Anne Russell. For the reasons stated hereafter, we reverse the judgment of the trial court. http://www.tba.org/tba_files/TCA/robinsonpropgrp.wpd MARY CATHERINE BERNI SCHREMP (HENDRY) v. DAVID BRUCE SCHREMP Court:TCA Attorneys: Wanda B Shea and Lisa E. Circeo, Memphis, Tennessee, for the appellant, Mary Catherine Berni Schremp (Hendry). Amy J. Amundsen, Memphis, Tennessee, for the appellee, David Bruce Schremp. Judge: FARMER First Paragraph: Mother, the custodial parent of minor children, desired to relocate out of state to live with her new husband. Father protested the move and filed a petition in opposition. Finding that Mother's new husband could easily move to Memphis to live with his new family and that dislocating the children was not in their best interest, the trial court granted the petition. We affirm. http://www.tba.org/tba_files/TCA/schrempmary.wpd TRAU-MED OF AMERICA, INC., et al. v. ALLSTATE INSURANCE COMPANY, et al. Court:TCA Attorneys: Ed M. Hurley, Memphis, For Appellant, Trau-Med of America, Inc. R. Layne Holley, Memphis, William H. Frye, Memphis, For Appellees, Allstate Insurance Company, Vickie Harris, Charles D. Ferrell, Leslie Johnson, and Ron Iden Judge: CRAWFORD First Paragraph: Plaintiff medical clinic filed a complaint against an insurance company and several of its employees alleging, inter alia, that the defendants tortiously interfered with their business relationship, that the attorneys supplied by the insurance company to represent its insured were guilty of abuse of process and that the defendants conspired to destroy plaintiff's reputation in business. The trial court dismissed the complaint for failure to state a claim upon which relief can be granted. Plaintiff has appealed. http://www.tba.org/tba_files/TCA/traumed.wpd SHIRLEY A. TRIPPETT MARCUM v. MICHAEL W. TRIPPETT Court:TCA Attorneys: Dennis J. Sossaman, Memphis, For Appellant, Michael W. Trippett Thomas E. Hansom, Gregory S. Gallagher, Memphis, For Appellee, Shirley A. Trippett Judge: CRAWFORD First Paragraph: This appeal involves the interpretation of a marital dissolution agreement pertaining to a division of marital property. The trial court interpreted the agreement to require Husband to begin paying $1,200.00 per month to Wife for her interest in the marital property, an insurance agency. Husband has appealed. http://www.tba.org/tba_files/TCA/trippettshir.wpd EDWARD M. TUGGLE, JR., AS EXECUTOR OF THE ESTATE OF MAXINE N. TUGGLE v. AMISUB (SFH), INC., d/b/a ST. FRANCIS HOSPITAL Court:TCA Attorneys: Stephen R. Leffler, Memphis, For Appellant, Edward M. Tuggle, Jr. David M. Cook, Karen L. Schlesinger, Greg A. Ziskind, Memphis, For Appellee, AMISUB, Inc. Judge: CRAWFORD First Paragraph: Patient sued hospital for injuries sustained when she fell after hospital personnel failed to respond to her call for assistance to go to the bathroom. Patient went to the bathroom without incident and then decided to bathe her feet while she was out of bed. Patient filled a pan of water and sat in a chair bathing her feet when the telephone rang. When she got up to answer the telephone across the room, her wet feet slipped on the floor, and she fell, sustaining injuries. The trial court granted hospital summary judgment, and patient has appealed. http://www.tba.org/tba_files/TCA/tuggleedw.wpd STATE OF TENNESSEE v. JESSE C. GOODMAN, JR. Court:TCCA Attorneys: John H. Henderson, District Public Defender, for the appellant, Jesse C. Goodman, Jr. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Ronald L. Davis, District Attorney General; and Robert Hassell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Jesse C. Goodman, Jr., was convicted by a Hickman County jury of one count of aggravated assault, a Class C felony, three counts of reckless endangerment, a Class E felony, and one count of assault, a Class A misdemeanor. All counts arose out of a single incident of domestic violence, with ramifications that included a four-hour standoff between the defendant and five law enforcement officers. The defendant was sentenced as a Range II, multiple offender to nine years for aggravated assault; two years for each of the reckless endangerment convictions; and eleven months and twenty-nine days for assault. http://www.tba.org/tba_files/TCCA/goodmanjc.wpd STATE OF TENNESSEE v. WILLIAM LEWIS HOUSTON Court:TCCA Attorneys: Edward L. Hilland, Nashville, Tennessee (at trial) and Robert D. Massey, Pulaski, Tennessee (on appeal), for the appellant, William Lewis Houston. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Mike Bottoms, District Attorney General; Robert C. Sanders and Richard H. Dunavant, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant was convicted by a Giles County jury of eight drug offenses and one count of aggravated assault. He received an effective sentence of seventy-two years. In this appeal, the defendant makes the following allegations: (1) the evidence was insufficient to support his convictions; (2) the trial court committed plain error by consolidating all nine indictments for trial; (3) the process of selecting the jury venire was unconstitutional; (4) the trial court improperly limited the defendant's cross-examination of the undercover agent; (5) the trial court erred by admitting into evidence transcripts of certain tape recorded conversations and failed to properly instruct the jury concerning the transcripts; and (6) the trial court erred in its sentencing determinations. We conclude the trial court improperly sentenced the defendant and reduce the sentences to an effective term of forty-six years. The judgments of the trial court are affirmed in all other respects. http://www.tba.org/tba_files/TCCA/houstonwl.wpd STEPHEN W. MURPHY v. STATE OF TENNESSEE Court:TCCA Attorneys: Jefre S. Goldtrap, Nashville, Tennessee, for the appellant, Stephen W. Murphy. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Philip H. Wehby, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals as of right from the Davidson County Criminal Court's denial of post- conviction relief. The petitioner pled guilty in 1998 to two counts of theft and was sentenced as a career offender to twelve years for D felony theft and six years for an E felony theft. The sentences were statutorily required to be served consecutively. Petitioner filed a timely pro se petition seeking post-conviction relief, alleging ineffective assistance of counsel and involuntary and unknowing guilty pleas. After an evidentiary hearing, the post-conviction court denied relief. Based upon our review, we affirm the post-conviction court's denial of the petitioner's request for post-conviction relief. http://www.tba.org/tba_files/TCCA/murphysw.wpd STATE OF TENNESSEE v. MICHAEL G. WALDRUM Court:TCCA Attorneys: Jeffrey S. Pulley, Nashville, Tennessee, attorney for appellant, Michael G. Waldrum. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Sharon E. Tyler, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals his conviction for DUI, fourth offense, contesting the sufficiency of the evidence supporting his conviction; the validity of his seizure and arrest; and the admissibility of the breath alcohol test result, the breath alcohol test operator's videotaped former testimony, and the breath alcohol test machine's certification documents. We conclude that the trial court erred in finding the breath test operator unavailable and that his videotaped testimony should not have been allowed. We reverse the judgment of conviction and remand the case for a new trial. http://www.tba.org/tba_files/TCCA/waldrummg.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? 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