December 27 , 2000 Volume 6 -- Number 208 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 01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 07 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 WADE NANCE v. STATE INDUSTRIES, INC., and ITT HARTFORD INSURANCE CO. Court:TSC - Workers Comp Panel Attorneys: Donald D. Zucarello, Nashville, Tennessee, for the appellant, Wade Nance. Gina L. Zylstra, Nashville, Tennessee, for the appellees, State Industries and ITT Hartford Insurance Company. Judge: DROWOTA First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employee contends that the trial court erred in finding that the employee's conduct amounted to a willful failure or refusal to use a safety appliance pursuant to Tenn. Code Ann. S 50-6-110(a). To clarify this area of workers' compensation law, the panel adopts a new standard which requires the employer to prove four elements in order to make out the affirmative defense of willful failure or refusal to use a safety appliance. The Panel vacates the trial court's judgment and remands the case for a new trial in which the new standard will be applied. http://www.tba.org/tba_files/TSC_WCP/nancewade.wpd THE BOGATIN LAW FIRM, PLC v. HALLUM MOTORS, INC., et al. Court:TCA Attorneys: Roger A. Stone, Memphis, Tennessee, for the appellant, John B. Naughton, Sr., Holding Company, Inc. William L. Hendricks, Jr., Memphis, Tennessee, for the appellee, Hallum Motors, Inc. Judge: FARMER First Paragraph: Appellee, an Arkansas corporation, and Appellant, a Delaware corporation authorized to do business in Arkansas and Tennessee, entered into an asset sales agreement for the sale and purchase of assets relating to an automobile dealership in West Memphis, Arkansas. Earnest money was placed in escrow with the Bogatin Law Firm, PLC in Memphis, Tennessee. Dispute concerning the asset sales agreement arose, and both parties made claim to the earnest money. The Bogatin Law Firm filed a complaint for interpleader in Shelby County, Tennessee. Appellee filed a motion to dismiss based upon improper venue which the trial court granted. We reverse, finding that venue in Shelby County was proper and that Appellee submitted to jurisdiction in Shelby County, Tennessee. http://www.tba.org/tba_files/TCA/bogatinlawfirm.wpd ROBERT CARL COVERT v. KIMBERLY MARIE BRUGGER COVERT WITH CONCURRING OPINION Court:TCA Attorneys: Gerald C. Russell, Maryville, Tennessee, for the appellant, Kimberly Marie Brugger Covert Virginia A. Schwamm, Knoxville, Tennessee, for the appellee, Robert Carl Covert Judge: GODDARD First Paragraph: Mother and Father were divorced and Mother moved to Oklahoma with the two minor children. A Marital Dissolution Agreement was incorporated into the final decree. The MDA provided that in return for Mother giving up all rights to Father's military retirement pay, Father would pay all marital debt. Father's separation from the military was anticipated at the time of the divorce. Father received severance pay upon his separation, not retirement pay because he only had 17 years of service. The Trial Court found that the pay Father received upon his separation was severance pay rather than retirement, and was considered income for the purposes of determining child support. The Trial Court, however, did not award Mother any of the pay for child support. The Trial Court also ordered Mother to either provide transportation for the children one way from Oklahoma on two major visitations per year or Father was to receive credit of $200 against his child support for providing transportation both ways. Mother appealed. We affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/covertr_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/covertr_con.wpd PAUL FARNSWORTH, a/k/a RONNIE BRADFIELD v. DONITA MOORE, et al. Court:TCA Attorneys: Paul Farnsworth, a/k/a Ronnie Bradfield, Henning, Tennessee, Appellant, Pro Se Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, and Pamela S. Lorch, Assistant Attorney General, Nashville, Tennessee, for the Appellees Donita Moore, et al. Judge: GODDARD First Paragraph: The Plaintiff, an inmate of the penal system of this State, sues the Warden of the Southeastern Tennessee State Regional Correctional Facility and certain other officials of the facility seeking monetary damages and an injunction based on five separate causes of action. The Trial Court dismissed his complaint, finding that because he refused to submit to a medical evaluation provided by the Defendant pursuant to the orders of the Court, the Court was unable to make an evaluation and as a result of his violation of Tenn.R.Civ.P. 41.02, dismissed his suit. We affirm. http://www.tba.org/tba_files/TCA/farnsworthpaul.wpd SHARON S. SARLI KELLY v. GEORGE LEROY EVANS, III Court:TCA Attorneys: John P. Chiles, Kingsport, Tennessee, and Thomas F. Bloom, Nashville, Tennessee, for Appellant Sharon S. Sarli Kelly David W. Blankenship, Kingsport, Tennessee, for Appellee George Leroy Evans, III Judge: GODDARD First Paragraph: This is a suit initiated by Sharon S. Sarli (now Kelly) against George Leroy Evans, III, wherein she sought a determination that he was the father of her child. After Mr. Evans stipulated that he was indeed the father of the child, the Referee and the Juvenile Judge made various determinations relative to custody, child support and the like. Mrs. Kelly, being dissatisfied with a number of the determinations in the Referee's last order which on appeal was in the main affirmed by the Juvenile Judge, filed this appeal. We vacate the judgment of the Juvenile Court and remand the case for further proceedings. http://www.tba.org/tba_files/TCA/kellysha.wpd LINDSEY, BRADLEY & MALOY v. MEDIA MARKETING SYSTEMS, INC., et al. Court:TCA Attorneys: Elizabeth B. Donnovin, Chattanooga, Tennessee, for the Appellant, Lindsey, Bradley & Maloy. Gary R. Patrick, Chattanooga, Tennessee, for the Appellee, Sam Cooper. Judge: SWINEY First Paragraph: This appeal involves a grant of summary judgment to Defendant Sam Cooper, the sole shareholder, president and CEO of his co-defendant, Media Marketing Systems, Inc. Lindsey, Bradley & Maloy ("Plaintiff") brought suit against Sam Cooper and Media Marketing for breach of contract stemming from an agreement between Plaintiff and Media Marketing. Plaintiff sought to pierce Media Marketing's corporate veil so as to render Defendant personally liable for the debt owed under the agreement. Plaintiff also made claims against Defendant for his alleged individual tortious conduct related to the agreement. Both Plaintiff and Defendant filed motions for summary judgment. The Trial Court denied Plaintiff's motion but granted Defendant's motion. Plaintiff appeals and argues that it is entitled to summary judgment on the issue of whether Media Marketing's corporate veil should be pierced due to Defendant's conduct. Plaintiff also contends that Defendant should not have been granted summary judgment because there are genuine issues of material fact. We reverse in part and affirm in part. http://www.tba.org/tba_files/TCA/lindseybradleymaloy.wpd G. L. OMOHUNDRO, et al. v. PAUL HARRISON, et al. Court:TCA Attorneys: Paul Harrison, Charlotte, North Carolina, Pro Se. Lewis S. Howard, Jr., Knoxville, Tennessee, for the appellees, G. L. Omohundro and Charles Warwick. Judge: SUSANO First Paragraph: This is a suit by investors in The Great Smoky Mountain Opry Corporation against a number of defendants including Paul Harrison. The trial court found a violation of the Tennessee Securities Act of 1980 and awarded the plaintiffs a judgment for $56,932.50. Harrison appeals, contending that the judgment should be reversed. We affirm. http://www.tba.org/tba_files/TCA/omohungl.wpd STATE OF TENNESSEE, ex rel., TAMMY L. DAVENPORT v. GERALD LAMONT PARTRIDGE Court:TCA Attorneys: Arvin H. Reingold, Chattanooga, Tennessee, for the appellant, Gerald Lamont Partridge. Paul G. Summers, Stuart F. Wilson-Patton and Kim Beals, Nashville, Tennessee for the appellee, State of Tennessee, ex rel., Tammy L. Davenport. Judge: GODDARD First Paragraph: This appeal from the Hamilton County Juvenile Court concerns whether the Juvenile Court erred in determining the child support obligation of the Appellant, Gerald Lamont Partridge. We vacate the order of the Juvenile Court and remand for further findings of fact. http://www.tba.org/tba_files/TCA/statedavenport.wpd STATE OF TENNESSEE v. TERRY LEE JOHNSON Court:TCCA Attorneys: Julie Pillow, Ripley, Tennessee, for the Appellant, Terry Lee Johnson. Paul G. Summers, Attorney General & Reporter; Mark A. Faulks, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Tracey A. Brewer, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: A Lauderdale County jury convicted the defendant of felony reckless endangerment, and in this appeal, the defendant claims two errors: (1) The trial court erroneously determined that the eight-year- old victim was competent to testify, and (2) the defendant was denied his right to a unanimous verdict. We find no error requiring reversal and affirm the conviction. http://www.tba.org/tba_files/TCCA/johnsontl.wpd STATE OF TENNESSEE v. ALEXANDER A. LEE Court:TCCA Attorneys: Christine W. Stephens, Memphis, Tennessee, for the Appellant, Alexander A. Lee, on appeal, Howard Wagerman, Memphis, Tennessee, at trial. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Mark E. Davidson, Assistant Attorney General, William L. Gibbons, District Attorney General, and James Wax, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Alexander A. Lee, pled guilty to one count of felony possession of cocaine, a class C felony. The Shelby County Criminal Court sentenced the Appellant to three years, suspended, with nine months to serve in the county workhouse. On appeal, the Appellant contends that the trial judge erred in denying his request for total probation. After review, we find no error. Therefore, the judgment is affirmed. http://www.tba.org/tba_files/TCCA/leeaa.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. 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