February 23, 2001 Volume 7 -- Number 034 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 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 10 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 PAULINE DAVIS v. LIBERTY MUTUAL INSURANCE COMPANY Court:TSC Attorneys: David H. Dunaway, LaFollette, Tennessee, for the appellant, Pauline Davis. James T. Shea, IV, Knoxville, Tennessee, for the appellee, Liberty Mutual Insurance Company. Judge: DROWOTA First Paragraph: In this workers' compensation case, the employee, Pauline Davis, has appealed from the trial court's judgment denying her claim for benefits filed against her employer, DeRoyal Industries, Inc. The employee, who worked as a sewing machine operator, was overcome by noxious fumes which she alleges caused a mental injury. On a subsequent occasion the employee injured her shoulder. The trial court awarded benefits for the shoulder injury but denied benefits for the mental injury. The employee appealed, arguing that she is disabled due to her mental injury. The appeal was argued before the Special Workers' Compensation Appeals Panel pursuant to Tenn. Code Ann. S 50-6- 225(e)(3), but transferred to the full Supreme Court prior to the Panel issuing its decision. Three questions are presented for our review: (1) whether the trial judge abused his discretion in not recusing himself, (2) whether the trial court erred in appointing an independent psychiatrist to evaluate the employee, and (3) whether the evidence preponderates against the trial court's finding that the employee failed to prove a work-related psychiatric injury. After carefully examining the record and the relevant authorities, we affirm the trial court's judgment. http://www.tba.org/tba_files/TSC/davispauline.wpd WILLIAM D. HUNLEY, et al. v. SILVER FURNITURE MFG. CO., et al. Court:TSC Attorneys: William Luther Cooper, Knoxville, Tennessee, for appellants, Willie D. Hunley and Brenda K. Hunley. Stephen E. Yeager, Knoxville, Tennessee, for appellant, Velvac, Inc. Robin M. King and Ronald Crockett Newcomb, Knoxville, Tennessee, for appellees, Silver Furniture Manufacturing Company and its insurer, Tab Service Corp. Judge: HOLDER First Paragraph: We granted this appeal to determine whether a workers' compensation insurance carrier's subrogation right under Tenn. Code Ann. S 50-6-112(c) extends to amounts representing compensation to a worker's spouse for loss of consortium. We hold that such amounts are not subject to subrogation under Tenn. Code Ann. S 50-6-112(c). When the allocation of damages between the worker and the worker's spouse is determined by settlement, however, we hold that the parties may request approval of the settlement from the court having jurisdiction over the third-party claim. Reasonable notice of the action seeking court approval of the settlement shall be provided to the employer or its carrier. The trial court having jurisdiction over the third-party claim shall then review the settlement to determine whether the allocation of settlement proceeds between the worker and the worker's spouse is fair and reasonable. Any portion of the settlement allocated to the worker's spouse for loss of consortium that is determined not to be fair and reasonable shall be subject the employer's statutory lien. http://www.tba.org/tba_files/TSC/hunleywd.wpd WILLIE JEAN CHERRY JOHNSON v. JAMES FRANKLIN JOHNSON Court:TSC Attorneys: Ronald D. Krelstein, Germantown, Tennessee, for the plaintiff/appellant, Willie Jean Cherry Johnson. Dennis J. Sossaman, Memphis, Tennessee, for the defendant/appellee, James Franklin Johnson. Judge: HOLDER First Paragraph: The parties' marital dissolution agreement ("MDA") divided Mr. Johnson's "military retirement benefits" to provide one half of those benefits to Ms. Johnson. After the final decree was entered, Mr. Johnson unilaterally waived a portion of his military retired pay to receive the same amount in non-taxable disability benefits. The payment of Ms. Johnson's share of the military retired pay was reduced accordingly. Ms. Johnson requested a modification of the MDA to provide for alimony in an amount equal to the reduction. Both the trial court and the Court of Appeals denied the requested relief, relying on Gilliland v. Stanley, No. 3258, 1997 WL 180587 (Tenn. Ct. App. April 16, 1997). We interpret the petition to modify as a petition to enforce the divorce decree. We hold that when an MDA divides military retirement benefits, the non-military spouse obtains a vested interest in his or her portion of those benefits as of the date of the court's decree. Any act of the military spouse that unilaterally decreases the non-military spouse's vested interest is an impermissible modification of a division of marital property and a violation of the final decree of divorce incorporating the MDA. The case is remanded to the trial court for enforcement of the decree. http://www.tba.org/tba_files/TSC/johnswil.wpd ROBERT L. TAYLOR v. MICHELLE TAYLOR BOWERS Court:TSC Attorneys: Robert L. Taylor, Johnson City, Tennessee, Pro Se Appellant. Judith Fain, Johnson City, Tennessee, for the appellee, Michelle Taylor Bowers. Judge: DROWOTA First Paragraph: We granted permission to appeal in this case to determine whether or not incarceration is an available sanction under Tennessee Rule of Civil Procedure 11. We conclude that incarceration is not an available sanction under Rule 11 and therefore vacate that portion the trial court's order imposing a jail sentence as a Rule 11 sanction. We remand this case to the trial court to consider whether a Rule 11 sanction is warranted, and if so, for imposition of an appropriate Rule 11 sanction. http://www.tba.org/tba_files/TSC/taylorrl.wpd GLEN CLIFTON v. KOMATSU AMERICA MANUFACTURING CORP. Court:TSC - Workers Comp Panel Attorneys: David Collier Nagle, Chattanooga, Tennessee, for the defendant/appellant, Komatsu American International. Jeffrey W. Rufolo, Chattanooga, Tennessee, for the plaintiff/appellee, Glen Clifton. Judge: HOLDER First Paragraph: In this workers' compensation case, the trial court awarded Mr. Clifton a 20% permanent partial disability to the body as a whole resulting from a second injury to the same spinal disc. The award was based in part upon the trial court's finding of a 10% medical impairment rating from the second injury. The Special Workers' Compensation Appeals Panel held that the record did not support a 10% medical impairment for the second injury. It further held that the compensation awarded by the trial court was inconsistent with our decision in Parks v. Tenn. Mun. League Risk Mgmt. Pool, 974 S.W.2d 677 (Tenn. 1998), in that it improperly "exceeds the 'degree of permanent disability that result[ed] from the subsequent injury.'" We disagree with the Panel's recommendation and affirm the trial court's judgment in all respects. http://www.tba.org/tba_files/TSC_WCP/clifton.wpd MCKINLEY BROWN v. TENNESSEE DEPT. OF CORRECTION, et al. Court:TCA Attorneys: McKinley Brown, Pro Se, Pikeville, Tennessee, appellant. Paul G. Summers, Michael E. Moore & Kimberly J. Dean, Nashville, Tennessee for the appellees, Tennessee Department of Correction and the Tennessee Attorney General. Judge: COTTRELL First Paragraph: This appeal involves a dispute between an inmate and the Department of Correction regarding the Department's calculation of the inmate's sentence reduction credits. The inmate claims that when the Class X Felony Act was repealed in 1989, prior sentence reduction credit schemes were revived, and he became retroactively eligible for those credits. The inmate appeals the dismissal of his complaint seeking declaratory relief and damages. We affirm the trial court's dismissal of his case. http://www.tba.org/tba_files/TCA/brownm.wpd RICHARD LEE CONROY v. CITY OF DICKSON, et al. Court:TCA Attorneys: William H. Poland, Clarksville, Tennessee, for the appellant, Richard Lee Conroy. Kristin Ellis Berexa and J. Russell Farrar, Nashville, Tennessee, for the appellees, City of Dickson, City of Dickson Police Department and John L. Baynham, Jr. Judge: CANTRELL First Paragraph: The driver of an automobile sued the City of Dickson under the Governmental Tort Liability Act for the severe injuries he suffered when a city police cruiser collided with his car. After a bench trial, the court found that the plaintiff and the officer driving the police car were equally responsible for the accident, resulting in no recovery for the plaintiff. We affirm. http://www.tba.org/tba_files/TCA/conroyrl.wpd MISTY L. COOPER v. ROY K. NORRIS, et al. Court:TCA Attorneys: W. Andrew Fox, Knoxville, Tennessee, for the Appellant, Misty Cooper E. Jerome Melson, Knoxville, Tennessee, for the Appellee, Claiborne County Board of Education Judge: GODDARD First Paragraph: Misty L. Cooper sues Claiborne County Board of Education for breach of a teaching contract she contends was entered into with her. The School Board contends that the offer of employment was contingent upon her passing the National Teachers Examination, which she did not do. The Trial Court found in favor of the Board. We affirm. http://www.tba.org/tba_files/TCA/coopermisty.wpd GERTRUD KRAUT DENEAU v. DONALD HERBERT DENEAU Court:TCA Attorneys: Carrie W. Kersh, Clarksville, Tennessee, for the appellant, Gertrud Kraut Deneau. Markley Runyon Gill, Erin, Tennessee, for the appellee, Donald Herbert Deneau. Judge: COTTRELL First Paragraph: This divorce case involves property division and alimony after a short term marriage. The trial court awarded all of the real property to the husband and allowed each party to keep the personal property in his or her possession. The court ordered the husband to pay $50,000 to the court clerk's office, who shall in turn pay the wife's debt to the Department of Veterans Affairs and disburse the remainder to the wife. The court refused to award alimony. We affirm. http://www.tba.org/tba_files/TCA/deneaug.wpd JUDY FRIEDLI, et al. v. HENRY FRANK KERR, et al. Court:TCA Attorneys: Thomas M. Donnell, Jr. and Jennifer A. Lawrence, Nashville, Tennessee, for the appellants, Henry Frank Kerr d/b/a Nashville Carriage Service, II, and Christopher Lee Edwards. Barbara J. Moss and Nancy A. Vincent, Nashville, Tennessee, for the appellees, Judy Friedli and David H. Friedli. Douglas Berry, Nashville, Tennessee, for the appellee, Principal Mutual Life Insurance Company. Judge: KOCH First Paragraph: This appeal involves two passengers in a horse-drawn carriage who were injured after the driver lost control of the horse on the streets of downtown Nashville. The passengers filed a negligence action in the Circuit Court for Davidson County against the owner of the carriage business and the driver of the carriage. They asserted that the carriage business owed them the same heightened duty of care that common carriers and amusement ride operators owe to their passengers. The owner of the carriage business responded that he was immune from suit under Tennessee's equine liability statutes. Following a hearing on the parties' respective motions for partial summary judgment, the trial court held that the carriage business was not immune from suit and that it owed its passengers the same heightened duty of care expected of common carriers and operators of amusement rides. The owner of the carriage business sought and received the trial court's and this court's permission to pursue an interlocutory appeal. We have determined that the trial court correctly decided that the carriage business was not immune from suit under Tennessee equine liability statutes but that the trial court erred by holding that the carriage business owed the same heightened duty to its passengers that common carriers and amusement ride operators owe to their passengers. http://www.tba.org/tba_files/TCA/friedlij.wpd JOSEPH HENRY, et al. v. BI-DISTRICT BOARD OF URBAN MINISTRY, INC., et al. Court:TCA Attorneys: Thomas F. Bloom, Nashville, Tennessee, for the appellant, Joseph Henry. David M. Bullock, Nashville, Tennessee, for the appellees, Bi-District Board of Urban Ministry, Inc. and Community Care Fellowship. Judge: FARMER First Paragraph: This appeal arises from an action for negligence. Plaintiff was sleeping in a homeless day shelter when he was struck in the head by Assailant, who was another guest of the shelter. Plaintiff brought suit against Shelter and its controlling Board for failing to provide security. The trial court found that neither Shelter nor Board owed a duty to Plaintiff because providing security would place an onerous burden on the parties. We affirm. http://www.tba.org/tba_files/TCA/henryjoseph.wpd JOHN M. JUSTICE v. HOLLY HOLMBERG JUSTICE Court:TCA Attorneys: Jack Norman, Jr. and Phillip Robinson, Nashville, Tennessee, for the appellant, John M. Justice. Mary Arline Evans, Nashville, Tennessee, for the appellee, Holly Holmberg Justice. Judge: KOCH First Paragraph: This appeal involves a dispute between a physician and a pharmacist regarding the provisions in their divorce decree for spousal support and legal expenses. In its decree ending their fourteen-year marriage, the Circuit Court for Davidson County directed the physician, among other things, to pay the pharmacist $50 per month in alimony in futuro until her death or remarriage, as well as $4,500 to partially defray the legal expenses she had incurred in the divorce proceeding. The physician asserts on this appeal that the spousal support award was punitive and that the pharmacist received sufficient assets as a result of the division of the marital estate to pay her own legal expenses. We have determined that the record supports the trial court's decisions regarding both the spousal support and the legal expenses and, therefore, affirm the judgment. http://www.tba.org/tba_files/TCA/justicejm.wpd JERRY LaQUIERE, et al. v. DANIEL W. McCOLLUM Court:TCA Attorneys: Robert J. Notestine, III and Joseph V. Ferrelli, Nashville, Tennessee, for the appellants, Jerry LaQuiere and Donna LaQuiere. H.E. Miller, Jr., Gallatin, Tennessee, for the appellee, Daniel W. McCollum. Judge: KOCH First Paragraph: This appeal involves a dispute arising out of the sale of a tract of real property in Antioch. After a survey revealed that the size of the tract was significantly less than the size stated in the contract, the purchaser filed suit in the Chancery Court for Davidson County seeking both specific performance of a provision in the contract requiring an adjustment in the purchase price and damages for breach of contract and misrepresentation. The purchaser also filed a lis pendens notice with the Davidson County Register of Deeds. The trial court granted the vendor's motion for summary judgment on the issue of specific performance and ordered the lis pendens notice removed. However, the trial court declined to grant summary judgment on the issue of damages for breach of contract and misrepresentation. We granted the purchaser's Tenn. R. App. P. 10 application for an extraordinary appeal. We now affirm the trial court because we concur with its conclusion that the price adjustment provision in the contract is not clear, definite, and complete. http://www.tba.org/tba_files/TCA/laquierej.wpd SUSIE C. TACKETT, et al. v. HULIN D. SHEPHERD, et al. Court:TCA Attorneys: Peter M. Olson, Clarksville, Tennessee, for the appellants, Susie C. Tackett and John H. Roe. William B. Jakes, Nashville, Tennessee, for the appellees, Hulin D. Shepherd and Jones Bros., Inc., a/k/a Jones Brothers Construction. Judge: CAIN First Paragraph: This case involves a two-vehicle accident between Defendant Jones Brothers Construction's truck and Plaintiff. The accident occurred on April 19, 1996, in Clarksville, Tennessee at the intersection of U.S. Highway 41-A North, also Fort. Campbell Blvd, and Jack Miller Blvd. The Plaintiffs alleged that Defendant Hulin D. Shepherd ("Shepherd"), an employee of Jones Brothers Construction, was negligent by failing to yield when he exited a "private" road and entered onto a "public" highway. The Defendants denied that it was a "private" road, denied liability, and asserted comparative fault on the part of Plaintiff John Roe ("Roe"). At the trial in November 1999, Plaintiffs requested special jury instructions concerning "private" roads. The trial court rejected the special instructions. The jury returned a verdict of equal fault and the case was dismissed. The Plaintiffs timely appealed after Plaintiffs' motion for a new trial was denied. We affirm the trial court. http://www.tba.org/tba_files/TCA/tackettsusie.wpd TIP AND BARBARA TERRY v. SCOTT BOTTS WITH CONCURRING OPINION Court:TCA Attorneys: Ricky A. W. Curtis, Knoxville, Tennessee, for the Apellant, Scott Botts. Howard R. Ellis, Oneida, Tennessee, for the Appellees, Tip and Barbara Terry. Judge: GODDARD First Paragraph: This appeal from the Scott County Juvenile Court concerns whether the Trial Court exercised proper subject matter jurisdiction in hearing a Petition to Establish Grandparent Visitation. Additionally, it concerns whether the Trial Court erred in granting visitation rights of minor grandchildren to Tip and Barbara Terry, the maternal grandparents. The Appellant, Scott Botts, appeals the decision of the Juvenile Court. We reverse the order of the Trial Court and dismiss the Petition. http://www.tba.org/tba_files/TCA/terrytip_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/terrytip_con.wpd STATE OF TENNESSEE v. ABEBREELLIS ZANDUS BOND Court:TCCA Attorneys: Billy R. Roe, Jr., Assistant Public Defender; Guy T. Wilkinson, Camden, Tennessee, for the Appellant, Abebreellis Zandus Bond. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Kim R. Helper, Assistant Attorney General, G. Robert Radford, District Attorney General, and Eleanor Cahill, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: Abebreellis Bond was convicted by a Carroll County jury of two counts of sale of cocaine. Based upon trial counsel's failure to perfect a direct appeal, Bond sought post-conviction relief in the Carroll County Circuit Court asserting ineffective assistance of counsel. The post-conviction court granted Bond's request for a delayed appeal. Additionally, the post-conviction court ordered that all remaining ineffective assistance of counsel issues raised in the post-conviction petition be consolidated with the delayed appeal. Bond now perfects his delayed appeal before this court, raising the following issues for our review: (1) whether trial counsel was ineffective; and (2) whether the evidence was sufficient to support the verdict. After review, we find the post-conviction court's procedural ruling, wherein the court refused to dismiss the remaining ineffective assistance of counsel claims after granting the delayed appeal, conflicts with our previous holding in Gibson v. State, 7 S.W.3d 47 (Tenn. Crim. App. 1998). Thus, we remand for entry of an order consistent with this opinion. http://www.tba.org/tba_files/TCCA/bondaz.wpd JOHN E. CARTER v. HOWARD CARLTON Court:TCCA Attorneys: John E. Carter, pro se. Paul G. Summers, Attorney General & Reporter; Patricia C. Kussman, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General, for the appellee, Howard Carlton. Judge: WITT First Paragraph: John E. Carter seeks the writ of habeas corpus. He claims that he is entitled to immediate release from his two 1981 convictions for the first degree murder of his grandparents. Carter alleges that he is being illegally restrained because he had inadequate notice of the charges against him, because the trial court excluded relevant evidence at his trial, and because the jury instructions given at his trial were flawed. We agree with the court below that these issues do not entitle Carter to issuance of the writ of habeas corpus. Accordingly, we affirm the lower court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/carterje.wpd PAUL FREEMAN v. STATE OF TENNESSEE WITH DISSENTING OPINION Court:TCCA Attorneys: Marcus M. Reaves, Jackson, Tennessee, for the Appellant, Paul Freeman. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Mark E. Davidson, Assistant Attorney General, James G. (Jerry) Woodall, District Attorney General, and James W. Thompson, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: Paul Freeman appeals from the dismissal of his petition for post-conviction relief. In this appeal, Freeman collaterally attacks his DUI conviction in the City Court of Jackson upon grounds that his uncounseled guilty plea was not knowingly and intelligently entered. Freeman asserts that at the time he entered his guilty plea, he was still under the influence of alcohol from his arrest approximately eight hours earlier that same morning. After review, we find that the proof does not support a knowing and voluntary plea. Accordingly, we reverse the ruling of the trial court, vacate Freeman's judgment of conviction, and remand the case to the City Court of Jackson for further proceedings. http://www.tba.org/tba_files/TCCA/freemanpaul_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/freemanpaul_dis.wpd PLEASE FORWARD THIS E-MAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. 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