February 05, 2001 Volume 7 -- Number 022 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 04 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 09 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 WALLACE DOWNEY JAMES, JR. v. TENNSCO CORPORATION, ET AL Court:TSC - Workers Comp Panel Attorneys: D. Stuart Caulkins, Nashville, Tennessee for the Appellant, Wallace Downey James, Jr. Randolph A. Veazey and Connie Jones, Nashville, Tennessee for Appellees, Tennsco Corporation and Royal Insurance Company of America. Judge: GRAY 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 S50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Appellant presents one issue to be determined and that is whether the trial court erred in finding that the appellant did not carry the requisite burden of proof in establishing that he sustained a compensable workers' compensation injury. In addition to the issue raised by Appellant, Appellee presents to the Court the issue of whether the employee's appeal should be dismissed for failure to comply with the Rules of Appellate Procedure. While the deficiencies are serious violations of the Rules of Appellate Procedure, the issue raised by the Appellant has been thoroughly reviewed by the panel, and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TSC_WCP/jameswallacedowney.wpd MARY MARTIN v. CATHOLIC MUTUAL GROUP et al. Court:TSC - Workers Comp Panel Attorneys: Elaine M. Youngblood, Nashville, Tennessee, for the Appellant, Catholic Mutual Group. Julia F. Smith, Clarksville, Tennessee for the Appellee, Mary Martin Judge: GRAY First Paragraph: This Workers' Compensation appeal has been referred to the Special Worker's Compensation Appeals Panel of the Supreme Court 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 trial court awarded to the employee a forty (40%) percent vocational disability to each arm for the work related injury of bilateral carpel tunnel syndrome. No award of vocational disability was made to the claimant for bilateral epicondylitis and the trial court found evidence was insufficient to award future medical for epicondylitis. We affirm the findings of the trial court. http://www.tba.org/tba_files/TSC_WCP/martinmary.wpd RALPH DEAN PIERCE, JR, et al. v. CINCINNATI CASUALTY INSURANCE COMPANY, et al. Court:TSC - Workers Comp Panel Attorneys: Michael Parsons, Nashville, TN for Appellant, Insurance Company of the State of Pennsylvania, CIGNA Insurance Company, Carrier Corporation, United Technologies. Frank D. Farrar and William Joseph Butler, McMinnville, TN for Appellee, Ralph Dean Pierce, Jr. Judge: GRAY First Paragraph: This Workers' Compensation Appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this case, the employer, appellant, contends that (1) the trial court erred in awarding permanent disability benefits for the right arm, and (2) the trial court's award of 62% permanent partial disability for employee's left arm was excessive. The employee contends that the award to the right arm was insufficient. For reasons stated below, the trial court is affirmed. http://www.tba.org/tba_files/TSC_WCP/pierceralphdean.wpd TOMMY C. SMITH, v. CONTINENTAL CASUALTY INSURANCE COMPANY AND LEGGETT AND PLATT, INC., et al. Court:TSC - Workers Comp Panel Attorneys: Christopher K. Thompson, Murfreesboro, Tennessee, for the Plaintiff/Appellant, Tommy C. Smith Terry L. Hill, Nashville, Tennessee, for the Defendant/Appellees, Continental Casualty Insurance Company and Leggett & Platt, Inc. Judge: GRAY 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 plaintiff, Tommy C. Smith, appeals the judgment of the Chancery Court of Rutherford County where the trial court found that the plaintiff failed to carry his burden of proof that he sustained a compensible injury as defined by Tennessee Code Annotated S 50-6-102(12). For the reasons stated in this opinion, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/smithtommyc.wpd BRADLEY J. BROWN v. MICKEY JOE ROGERS Court:TCA Attorneys: David Goad, Murfreesboro, Tennessee, for the appellant, Mickey Joe Rogers. Daryl M. South, Murfreesboro, Tennessee, for the appellee, Bradley J. Brown. Judge: COTTRELL First Paragraph: The biological father appeals the termination of his parental rights which allowed the adoption of his two children by the stepfather after the mother's death. Although the evidence that the father abandoned his children was clear and convincing, the proof, when supplemented with post-judgment facts, was insufficient to determine whether termination of parental rights was in the best interests of the children. We remand for a hearing on the children's best interests. http://www.tba.org/tba_files/TCA/brownb.wpd STATE OF TENNESSEE ex rel. ELISA CRIPPEN v. LAWRENCE JOHNSON Court:TCA Attorneys: Paul G. Summers, Attorney General & Reporter; Stuart F. Wilson-Patton, Assistant Attorney General, and Kim Beals, Assistant Attorney General, for the appellant, State of Tennessee. No appearance for the appellee. Judge: SUSANO First Paragraph: This case concerns the modification of a child support award. In addition to the child for whom support was set in the instant case, the obligor father had three other children. At one point in the past, he was required by court order to support these three other children; but, by the time of the hearing below, his obligation had been terminated except for an arrearage on which he was continuing to pay. In determining the proper award in the instant case, the trial court considered the father's other three children and deviated from the Child Support Guidelines due to the father's "hardship." The State, as assignee of the mother's right to child support, appeals. We modify the trial court's award. http://www.tba.org/tba_files/TCA/crippene.wpd RONALD L. DAVIS V. DONAL CAMPBELL Court:TCA Attorneys: Ronald L. Davis, Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Patricia A. Kussmann, Assistant Attorney General, for the appellee, Donal Campbell. Judge: KOCH First Paragraph: This appeal involves a dispute between a prisoner serving a 99-year sentence and the Department of Correction regarding the calculation of the prisoner's release eligibility date. After the Department declined to issue a declaratory order changing his release eligibility date, the prisoner filed an action in the Chancery Court for Davidson County asserting that the Department had incorrectly classified him as a Class X felon because he had not been convicted of a Class X crime, and he had not received credit for jail time served prior to his prison sentence. The Commissioner of Correction moved to dismiss the complaint, and the trial court, after converting the Commissioner's motion to a motion for summary judgment, dismissed the prisoner's complaint. On this appeal, the prisoner essentially reargues the same issues raised in his complaint. We have determined that the trial court correctly concluded that the material facts are not in dispute and that the Commissioner is entitled to a judgment as a matter of law. Accordingly, we affirm the summary judgment. http://www.tba.org/tba_files/TCA/davisronald.wpd JOHN W. JOHNSON v. BERNICE WADE, et al. Court:TCA Attorneys: John W. Johnson, Trenton, pro se L. L. Harrell, Jr., Trenton, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from an action for ejectment filed by Plaintiff John W. Johnson ("Plaintiff") against Defendant Bernice Wade ("Defendant"). Plaintiff filed suit in the Gibson County Circuit Court alleging that he was the sole owner of the tract of land where both Plaintiff's and Defendant's residences are located. Prior to Defendant's filing on an answer, Plaintiff filed a motion for default judgment. Thereafter, Defendant filed an answer, a motion to dismiss, and a motion to compel Plaintiff to appear for deposition. Following Plaintiff's failure to appear for deposition, failure to prepare an order as directed by the court, and an attempt to file a premature appeal, the trial court dismissed Plaintiff's case for failure to properly prosecute. Plaintiff appeals. http://www.tba.org/tba_files/TCA/johnsonjohnw.wpd KNOX COUNTY EDUCATION ASSOCIATION v. KNOX COUNTY BOARD OF EDUCATION, et al. Court:TCA Attorneys: Richard L. Colbert and Kurtis J. Winstead, Nashville, Tennessee, for the appellant, Knox County Education Association. Martha Haren McCampbell, Knoxville, Tennessee, for the appellees, Knox County Board of Education and Allen Morgan, Superintendent of Knox County Schools. Judge: SUSANO First Paragraph: This is an action brought by the Knox County Education Association seeking a declaratory judgment and injunctive relief against the Knox County Board of Education and its then-superintendent, Allen Morgan. The trial court found that provisions of a private act granting tenure to principals employed in the Knox County School System were repealed and superseded by the enactment in 1992 of a public act, the Education Improvement Act, and that the private act, to the extent that it conflicts with the general law, violates Article XI, Section 8 of the Tennessee Constitution. The trial court further found that Knox County principals are not members of the bargaining unit represented by the Knox County Education Association as to the subjects of performance, accountability, and contract renewal. The Knox County Education Association appeals, arguing (1) the trial court erred in finding that provisions of the private act were repealed by the Education Improvement Act and (2) the trial court erred in concluding that school principals are not members of the bargaining unit as to the subjects of performance, accountability, and contract renewal. We affirm. http://www.tba.org/tba_files/TCA/kcea.wpd NEXT GENERATION, INC., v. WAL-MART, INC., d/b/a SAM'S WHOLESALE CLUB Court:TCA Judge: FRANKS First Paragraph: Appellants have filed a Petition for Rehearing, and insist that our Opinion is in conflict with Ark. Code. Ann. S4-2-202 (Arkansas' parol evidence rule), because they interpret that statute as providing that a written document/agreement can be integrated/final with respect to only the terms contained therein, but yet not be a complete integration or a final expression of the parties' "whole" agreement. Appellants cite no authority for this position. http://www.tba.org/tba_files/TCA/nextgen2.wpd LARRY J. RAY v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY Court:TCA Attorneys: Thomas H. Strawn, Dyersburg, Tennessee for the appellant, Larry J. Ray. Jere B. Albright, Humboldt, Tennessee for the Appellee, Tennessee Farmers Mutual Insurance Company. Judge: FARMER First Paragraph: Appellant had a fire insurance policy with Appellee which covered Appellant's dwelling and the contents therein. After a fire completely destroyed Appellant's home and all of the contents therein, Appellee refused to pay Appellant for his losses. Appellee declared the policy to be void ab initio due to material misrepresentations contained in the application for insurance. Jury returned a verdict in favor of Appellant, finding that Appellant did not make the misrepresentations with the intent to deceive the Appellee. The trial court directed a verdict for Appellee, holding that the misrepresentations were material and increased the Appellee's risk of loss. We reverse the directed verdict and remand. http://www.tba.org/tba_files/TCA/raylarry.wpd IN THE MATTER OF: S.M.K and R.A.K., MELISSA MCKINNEY v. STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES, Court:TCA Attorneys: Kenneth N. Bailey, Jr., Greeneville, TN, for the Appellant, Melissa McKinney. Paul G. Summers, Attorney General, and Elizabeth C. Driver, Assistant Attorney General, Nashville, for the Appellee, State of Tennessee. Judge: SWINEY First Paragraph: The State of Tennessee, Department of Children's Services, petitioned to terminate the Mother's parental rights to an eight year old child and a three year old child. The record shows by clear and convincing evidence that termination of the Mother's parental rights is in the best interest of the children under the standards set forth in Tenn Code Ann. S 36-1-113. We affirm the Judgment of the Trial Court. http://www.tba.org/tba_files/TCA/smk.wpd RAYMOND TOWNES, et al. v. SUNBEAM OSTER CO., INC., et al. Court:TCA Attorneys: Charles J. Williams and John B. Carlson, Nashville, Tennessee, and Louis C. Accurso, Kansas City, Missouri, for the appellants, Raymond Townes and Marie Giddens Townes. Philip M. Kirkpatrick and Jeffrey M. Beemer, Nashville, Tennessee, and James W. Ozog, Downers Grove, Illinois, for the appellee, Sunbeam Oster Company, Inc. Judge: KOCH First Paragraph: This appeal involves a products liability action stemming from the explosion of a propane grill. The plaintiffs originally filed suit in the Circuit Court for Davidson County naming the grill manufacturer and others as defendants. Thereafter, they took a voluntary nonsuit against the grill manufacturer. The present dispute arose when the plaintiffs filed a second amended complaint asserting new claims against the grill manufacturer and additional claims against the other defendants. After the trial court granted a summary judgment for the manufacturer on the ground that the amended complaint was barred by the statute of limitations, the plaintiffs attempted to bring the manufacturer back into the litigation by seeking to file a third amended complaint pursuant to Tenn. Code Ann. S 20-1-119 (1994). The trial court declined to permit the plaintiffs to amend their complaint on the ground that Tenn. Code Ann. S 20-1-119 does not apply to parties who were known to the plaintiff when the original complaint was filed. The plaintiffs appealed to this court. We have determined that the trial court correctly concluded that the plaintiffs could not take advantage of the relation-back provisions in Tenn. R. Civ. P. 15.03; however, we have also concluded that the trial court should have permitted the amendment under Tenn. Code Ann. S 20-1-119. http://www.tba.org/tba_files/TCA/townesr.wpd FREDERICK H. RUSSELL, JR. v. STATE OF TENNESSEE Court:TCCA Attorneys: Michael V. Thompson, Nashville, Tennessee, for the Appellant, Frederick H. Russell, Jr. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Jerry D. Hunt, Assistant District Attorney General; for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner, pursuant to a plea agreement, pleaded guilty to two counts of aggravated vehicular homicide and was sentenced to concurrent sentences of twenty-five years on each count. The Petitioner filed a petition for post-conviction relief, which was dismissed by the trial court without an evidentiary hearing. The trial court determined that the petition did not comply with Tennessee Code Annotated S 40-30-206(d) in that the Petitioner failed to set out a clear and specific statement of all grounds for relief, including full disclosure of the factual basis of those grounds. The Petitioner now appeals, arguing that his petition was sufficient under Tennessee Code Annotated S 40-30-206(d) to entitle him to an evidentiary hearing. We conclude that although the Petitioner set forth an appropriate ground for relief in his petition, he did not allege a sufficient factual basis for the ground for relief as required by statute. Therefore, we affirm the trial court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/russellfh.wpd STATE OF TENNESSEE v. CHARLES J. SMIGELSKI Court:TCCA Attorneys: Joe H. Walker, Public Defender; Alfred Lee Hathcock, Jr., Assistant Public Defender, Harriman, Tennessee, on appeal; Kimberlee A. Waterhouse, Lenoir City, Tennessee, at trial, for the Appellant, Charles J. Smigelski. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Mark A. Fulks, Assistant Attorney General, J. Scott McCluen, District Attorney General, and Frank A. Harvey, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Charles J. Smigelski, is currently incarcerated at the Northeast Correctional Facility where he is serving an effective thirty-year sentence. On appeal from the Loudon County Criminal Court, he raises the following issue: Whether the personal property exemption provided by Tenn. Code Ann. S 26-2-102 exempts funds held in an inmate's trust fund account from collection by the Department of Correction to satisfy a privilege tax imposed at sentencing. After review, we find that the Appellant has no appealable right under Tenn. R. App. P. 3(b). Accordingly, the appeal is dismissed. http://www.tba.org/tba_files/TCCA/smigelskicj.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? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! For the Plain Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE 3) Leave the body of the message blank For the HTML Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE HTML 3) Leave the body of the message blank UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! To STOP receiving TBALink Opinion-Flash: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: UNSUBSCRIBE 3) Leave the body of the message blank © Copyright 2001 Tennessee Bar Association