February 9, 2001 Volume 7 -- Number 026 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 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 08 New Opinion(s) from the Tennessee Court of Appeals 03 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 THE CITY OF JOHNSON CITY, TENNESSEE v. ERNEST D. CAMPBELL, et al. Court:TCA Attorneys: Thomas C. Jessee, Johnson City, Tennessee, for the Appellants, Ernest D. Campbell and Nancy Campbell. James D. Culp and James H. Epps, IV, Johnson City, Tennessee, for the Appellee, The City of Johnson City, Tennessee. Judge: SWINEY First Paragraph: The City of Johnson City filed a petition for condemnation seeking to take a small parcel of property owned by Ernest D. Campbell and Nancy Campbell for a public park. Prior to filing its petition, Johnson City's Board of Commissioners passed a resolution to begin condemnation proceedings against the Campbells. Johnson City's charter states that Johnson City shall have the power of eminent domain by ordinance but does not provide specifically for this power by resolution. The Campbells asked that the Trial Court dismiss the condemnation petition. The Trial Court denied this request to dismiss, finding that under the language of the municipal charter, Johnson City was not required to pass an ordinance to commence condemnation proceedings and that Johnson City properly initiated its condemnation suit by filing a petition pursuant to Tenn. Code Ann. S 29-16- 104. This matter then proceeded to a jury trial wherein the only issue was the value of the Campbells' property. The Campbells appeal. We reverse the Trial Court's determination that the City of Johnson City was not required to pass an ordinance in the exercise of its power of eminent domain as pled in its petition for condemnation. http://www.tba.org/tba_files/TCA/campbelle.wpd GALLATIN HOUSING AUTHORITY v. TOWN OF CARTHAGE, TENNESSEE, et al. Court:TCA Attorneys: Kurt O. E. Tschaepe, Gallatin, Tennessee, for the Appellant, Gallatin Housing Authority. Jacky O. Bellar, Carthage, Tennessee, for the Appellees, Town of Carthage and Smith County, Tennessee. Judge: CAIN First Paragraph: This appeal arises from a suit seeking damages under a theory of inverse condemnation by the Gallatin Housing Authority ("Plaintiff") against the Town of Carthage, Smith County, Tennessee ("Defendant"). The Plaintiff has appealed as to the Town of Carthage and Smith County although the issues on appeal are directed to the Town of Carthage only. The Town removed some curbing and grass from a small area located between a turnaround and the county jail and then paved the area. At trial, the court found that the Plaintiff failed to prove by a preponderance of the evidence that it owned the strip of land which it claimed was wrongfully expropriated by the Town and that even if the Plaintiff proved ownership, the Town properly took the land pursuant to a dedication to the Town on June 8, 1966. On appeal, the Plaintiff presents three issues: (1) whether the trial court erred in its factual finding that the Plaintiff failed to prove ownership of the land, (2) whether the trial judge erred as a matter of law in concluding that the dedication allowed the Town to expropriate the land, and (3) whether the trial court erred in failing to consider the totality of the circumstances surrounding the dedication where questions were raised as to the intentions of the grantor. For the reasons hereafter stated, we affirm the trial court and find this appeal to be frivolous. http://www.tba.org/tba_files/TCA/gallatinhsga.wpd BARBARA JO HECK, et al. v. CITY OF SEVIERVILLE Court:TCA Attorneys: Steven E. Marshall, Sevierville, Tennessee, for the appellants, Barbara Jo Heck and husband, Otto Heck John T. Batson, Jr., Knoxville, Tennessee, for the appellee, City of Sevierville Judge: GODDARD First Paragraph: In this suit the Plaintiffs seek damages for injuries received by Barbara Jo Heck when she slipped on a patch of ice and fell on property owned by the City of Sevierville. The Trial Court found that the City had no actual or constructive notice of the presence of the ice causing Mrs. Heck to fall and, accordingly, dismissed the complaint. We affirm under Rule 10(a) of the Court of Appeals. http://www.tba.org/tba_files/TCA/heckbar.wpd ZEBEDEE JOHNSON v. METROPOLITAN GOVERNMENT FOR NASHVILLE DAVIDSON COUNTY, TENNESSEE Court:TCA Attorneys: Richard Dance, Nashville, Tennessee, for the appellant, Zebedee Johnson. Karl F. Dean, William Michael Safley and Shayna Abrams, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County, Tennessee. Judge: FARMER First Paragraph: This appeal arises from the dismissal of Employee from Hospital operated by Government. Employee filed complaint requesting declaration that he had not been properly dismissed. Trial court dismissed action on the basis that Government was exempt from liability under the Tennessee Governmental Tort Liability Act. We affirm the ruling on the basis that Employee failed to file a writ of certiorari within the sixty days allotted by statute. http://www.tba.org/tba_files/TCA/johnsonzebedee.wpd MELISSA DANISE FOSTER KORNBLEE (JARAMILLO) v. KEVIN RICHARD KORNBLEE Court:TCA Attorneys: Helen Sfikas Rogers and Lana Lennington, Nashville, Tennessee, for the Appellant, Melissa Danise Foster Kornblee (Jaramillo). Laura Y. Goodall, Gallatin, Tennessee, and Robert Todd Jackson, Nashville, Tennessee, for the Appellee, Kevin Richard Kornblee. Judge: CAIN First Paragraph: In this post-divorce proceeding, Melissa Danise Foster Kornblee (Jaramillo) appeals the trial court's actions in ordering mental health counseling and treatment of the parties' minor children by a court appointed professional, declining to allow her to relocate with the minor children to Wyoming, allowing Father unsupervised visitation with the children, and awarding Father attorney's fees in defending her motion to suspend unsupervised visitation. We affirm the trial court. http://www.tba.org/tba_files/TCA/kornbleemelissa.wpd DANIEL B. TAYLOR v. DONAL CAMPBELL, et al. Court:TCA Attorneys: Daniel B. Taylor, Only, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Michael L. Haynie, Assistant Attorney General, Nashville, Tennessee, for the appellees, Donal Campbell and Connie S. Klein. Judge: KOCH First Paragraph: This appeal involves a dispute between a prisoner and the Department of Correction regarding the prisoner's request for access to the Department's rules governing prisoner sentence credits. The Department responded by informing the prisoner that its policies governing prisoner sentence reduction credits could be found in the prison law library. Thereafter, the prisoner filed suit in the Chancery Court for Davidson County complaining that he had been wrongfully denied access to public records. The Commissioner of Correction moved to dismiss the complaint. Alternatively, the Commissioner sought a summary judgment and supported his motion with affidavits asserting that the prisoner had already received all the information he sought. Based on these affidavits, the trial court granted the Commissioner's summary judgment motion and dismissed the prisoner's complaint. We have determined that the Commissioner has not demonstrated that he is entitled to a judgment as a matter of law and, therefore, reverse the summary dismissal of the prisoner's complaint. http://www.tba.org/tba_files/TCA/taylordb.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 LISA ANN VACCARELLA v. RAYMOND M. VACCARELLA Court:TCA Attorneys: Charles G. Blackard, III, Brentwood, Tennessee, for the Appellant, Raymond M. Vaccarella. Mary Frances Lyle, Nashville, Tennessee, for the Appellee, Lisa A. Vaccarella. Judge: CAIN First Paragraph: The unusual procedural history of this case presents for review the validity of the parties' marital dissolution agreement ("MDA") and the subsequent divorce decree entered by Judge Henry Denmark Bell incorporating this MDA, as well as the court's decision regarding child custody, support, and visitation. After Wife filed Rule 59 and 60.02 motions for relief from her MDA, the second trial judge, Russ Heldman, determined that Tennessee Code Annotated section 36-4-103(b) requires a hearing prior to incorporating the signed marital dissolution agreement into a decree granting the parties an irreconcilable differences divorce. Judge Heldman further found the MDA to be invalid due to duress and violations of Wife's due process rights and vacated Judge Bell's decree granting the parties' divorce. We overrule the trial court on these issues and find the MDA signed by the parties, as well as the January 31, 1998 decree of Judge Bell granting final divorce, to be valid. We thus reinstate both the MDA and original decree. With regard to the issues of custody, visitation, and child support, we find substantial change in circumstances and affirm Judge Heldman's determinations on these issues. http://www.tba.org/tba_files/TCA/vaccarellaLisa.wpd STATE OF TENNESSEE v. KIMBERLY GREENE Court:TCCA Attorneys: Charles Dungan, Maryville, Tennessee for the appellant, Kimberly Greene. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Michael L. Flynn, District Attorney General; Edward P. Bailey, Jr., Assistant District Attorney General; Kirk Andrews, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant appeals from her Blount County Circuit Court conviction and sentence for criminal responsibility for rape of a child, a Class A felony. The trial court sentenced the defendant as a child rapist to 25 years incarceration in the Department of Correction. In this direct appeal, the defendant complains that the videotaped statement she made in response to questioning at the police station should have been suppressed; that the videotaped statement contained inadmissible references to uncharged misconduct; that the cautionary instruction about the evidentiary value of the videotaped statement was inadequate; that her sentence is excessive; and that she should have been sentenced as a Range I, standard offender with a 30 percent release eligibility date. We affirm the defendant's conviction and sentence. http://www.tba.org/tba_files/TCCA/greenek.wpd STATE OF TENNESSEE v. TERESA R. HODGE Court:TCCA Attorneys: Mack Garner (at trial), District Public Defender; Julie Rice (on appeal), for the Appellant, Teresa Hodge. Paul G. Summers, Attorney General & Reporter; Patricia C. Kussman, Assistant Attorney General; Michael L. Flynn, District Attorney General; John Bobo, Assistant District Attorney General; Edward P. Bailey, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant appeals the Blount County Circuit Court's determination that her plea-bargained, eleven-month and 29-day effective sentence for theft and possession of cocaine shall be served in confinement, subject to 75 percent of service before the defendant is eligible for rehabilitative programs. The record supports the trial court's determination, and we affirm. http://www.tba.org/tba_files/TCCA/hodgetr.wpd STATE OF TENNESSEE v. JAMES M. LOVEDAY Court:TCCA Attorneys: James W. Greenlee, Sevierville, Tennessee, for the appellant, James M. Loveday. Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Following a jury trial, Defendant, James M. Loveday, was convicted of one count of attempted first degree murder, four counts of aggravated assault, and two counts of reckless endangerment. The trial court sentenced him to twenty-five (25) years for the attempted first degree murder conviction, six (6) years for each of the four aggravated assault convictions, and two (2) years for each of the reckless endangerment convictions. The sentences were ordered to be served consecutively to each other for a total sentence of fifty-three (53) years. On appeal, he challenges the sufficiency of the evidence to sustain the convictions of attempted first degree murder and aggravated assault, and argues that the trial court erroneously admitted testimony of prior bad acts, improperly considered victim impact letters in the presentence report, and argues that the sentences are excessive and that the trial court erred by ordering consecutive sentencing. After a review of the record, we affirm the judgment of the trial court as modified herein. http://www.tba.org/tba_files/TCCA/lovedayjm.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