March 13, 2001 Volume 7 -- Number 046 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 10 New Opinion(s) from the Tennessee Court of Appeals 02 New Opinion(s) from the Tennessee Court of Criminal Appeals 05 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 MITCHELL HALL v. CRACKER BARREL OLD COUNTRY STORE Court:TSC - Workers Comp Panel Attorneys: Ronald J. Berke, Chattanooga, Tennessee, for the appellant, Mitchell Hall. C. Douglas Dooley and Michael D. Newton, Chattanooga, Tennessee, for the appellee, Cracker Barrel Old Country Store. Judge: BYERS 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 brought this workers' compensation claim in which he alleges a drawer fell on his foot while he was working for the defendant. The trial judge found the plaintiff failed to show an injury by accident arising in the scope and course of his employment and dismissed the case. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/hallm.wpd City of Church Hill, Tennessee v. Patrick H. Reynolds, III Court:TCA Attorneys: Douglas T. Jenkins, Johnson City, Tennessee, for the Appellant Patrick H. Reynolds, III. K. Erickson Herrin, Johnson City, Tennessee, for the Appellee City of Church Hill, Tennessee. Judge: SWINEY First Paragraph: Patrick H. Reynolds, III ("Defendant") was issued a Misdemeanor Citation alleging violations of multiple city ordinances of the City of Church Hill ("Plaintiff") over a one-month period. Defendant was found guilty in the Church Hill City Court of violating these ordinances. Defendant appealed to the Hawkins County Circuit Court which likewise found the Defendant guilty of violating the ordinances. The Circuit Court, however, found Defendant guilty of several violations on days for which the Defendant was tried by the City Court with no finding of guilt by the City Court. Because Defendant cannot be placed in double jeopardy for violations of these municipal ordinances, we reverse the judgment of the Circuit Court finding Defendant guilty for violations on days for which Defendant was tried by the City Court with no finding of guilt made by the City Court. We affirm the Circuit Court's determination with regard to the remaining violations. http://www.tba.org/tba_files/TCA/churchhill.wpd DRY TECH, INC. v. KENT RIDDLE, D/B/A NU STEAM Court:TCA Attorneys: Lawrence H. Hart, for Appellant Jay R. Slobey, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a breach of contract and/or quantum meruit action filed by the Appellee against the Appellant in the Chancery Court of Sumner County. The Appellant filed a counterclaim against the Appellee. The Appellant served upon the Appellee a request for admissions. The Appellee failed to respond within thirty days. The Appellant moved the trial court to enter an order deeming the matters contained in the request for admissions to have been admitted by the Appellee. The trial court denied the Appellant's motion and entered a judgment in favor of the Appellee on the complaint. The trial court entered a judgment in favor of the Appellant on one of the claims of the counterclaim and dismissed the other two claims. http://www.tba.org/tba_files/TCA/drytechInc.wpd ERNEST J. FRYE v. BLUE RIDGE NEUROSCIENCE CENTER, P.C., et al. Court:TCA Attorneys: Jimmie C. Miller, Kingsport, Tennessee, for the Appellant Blue Ridge Neuroscience Center, P.C. William T. Gamble and Russell W. Adkins, Kingsport, Tennessee, for the Appellant Gregory N. Corradino, M.D. Olen G. Haynes, Johnson City, Tennessee, for the Appellee Ernest J. Frye. Judge: SWINEY First Paragraph: Plaintiff sued Defendants on November 25, 1998, alleging medical malpractice. Summonses were issued but never served on Defendants or returned to the court. Process was never reissued on the first Complaint. A voluntary nonsuit was entered by the Trial Court on June 8, 1999. On November 22, 1999, Plaintiff refiled a similar lawsuit, process issued, and Defendants were served the next day. Defendants filed summary judgment motions claiming that the statute of limitations had run because Plaintiff failed to have process reissued on the first Complaint as required by Rule 3 of the Tenn. R. Civ. P. Plaintiff claimed compliance with Rule 3, and, therefore, that the second lawsuit was filed within the statute of limitations. The Trial Court denied the summary judgment motions after determining that Defendants had actual notice of the first lawsuit and thus the spirit of the rules had been complied with. The Trial Court granted Defendants' request for an interlocutory appeal. We granted this interlocutory appeal to decide whether Plaintiff can comply with Rule 3 of the Tenn. R. Civ. P. not by obtaining issuance of new process in his original lawsuit within the one year period provided for in Rule 3, but instead by voluntarily dismissing the first lawsuit and refiling a similar lawsuit with the issuance of process in the second lawsuit within the one year period. Our answer is "no." We reverse the decision of the Trial Court. http://www.tba.org/tba_files/TCA/fryeej.wpd TERRY S. HAHN v. THOMAS MARTIN HAHN, et al. Court:TCA Attorneys: John O. Threadgill, Knoxville, Tennessee, for appellant, Terry S. Hahn Arthur G. Seymour, Jr. and James E. Wagner, Knoxville, Tennessee, for appellee, Thomas Martin Hahn. Wayne Allen Ritchie, Knoxville, Tennessee, for intervening appellees, Mark Hahn, Margot Hahn Dunn and Scot Hahn. Judge: INMAN First Paragraph: An intra-family business transaction which occurred nearly 30 years ago fomented this litigation involving an undisclosed interest in a hotel in Gatlinburg. The original parties are former spouses; the intervenors are their children. The complaint was dismissed on motion for summary judgment. We affirm. http://www.tba.org/tba_files/TCA/hahnts.wpd JOHNNY & MARY JO HARPER, et al. v. MELVIN SLOAN, et al. Court:TCA Attorneys: Jerry Gonzalez, pro se, for Appellants Dean Robinson, for Appellees Melvin Sloan and Beverly P. Sloan Michael R. Jennings, for Appellee Steve Armistead Judge: HIGHERS First Paragraph: This appeal involves the determination of whether the trial court erred in determining that a pathway known as Jaybird Lane was a public road. Additionally, the trial court found that the road had not been abandoned and thus granted summary judgment to the Defendants. For the following reasons, we affirm the ruling of the court below in all respects. http://www.tba.org/tba_files/TCA/harperjohnny.wpd JANICE CAROLINE (SHERRILL) HILLYER v. CHARLES LEE HILLYER Court:TCA Attorneys: Christine Zellar Church, Clarksville, Tennessee, for the appellant, Janice Caroline (Sherrill) Hillyer. Mark A. Rassas, Clarksville, Tennessee, for the appellee, Charles Lee Hillyer. Judge: COTTRELL First Paragraph: The issues in this post-divorce case arise because the former husband's waiver of military retirement pay in order to receive disability benefits cut off the former wife's receipt of her portion of the retirement pay which had been awarded to her in the distribution of marital property. The former wife filed a contempt petition, seeking to reinstate her portion of the benefits. The trial court, relying on Gilliland v. Stanley, an unpublished opinion from this court, denied her motion for contempt. In light of our Supreme Court's holding in Johnson v. Johnson, No. W1999-01232-SC-R11-CV, 2001 WL 173502 (Tenn. Feb. 23, 2001), we reverse and remand. http://www.tba.org/tba_files/TCA/hillyerj.wpd ROY MICHAEL MALONE, SR. v. HARLEYSVILLE MUTUAL INSURANCE COMPANY Court:TCA Attorneys: Michael E. Richardson, Chattanooga, Tennessee, for the Appellant, Roy Michael Malone, Sr. Jeffrey L. Cleary and Michael A. Kent, Chattanooga, Tennessee, for the Appellee, Harleysville Mutual Insurance Company. Judge: SWINEY First Paragraph: This matter involves a dispute concerning a fire and casualty insurance policy ("Policy") which covered an apartment complex, Star Chase Apartments. Harleysville Mutual Insurance Company ("Defendant") was the insurance carrier, and the named insured was John L. Oliver, LLC ("Oliver"). A fire in one of the apartment buildings caused substantial damage. Approximately six months later, Oliver sold Star Chase to Roy M. Malone, Sr. ("Plaintiff"), prior to starting any repairs to the burned building. Oliver also assigned to Plaintiff his right to the proceeds under the Policy, and Defendant acknowledged this assignment. The Trial Court found that Plaintiff, as Oliver's assignee, was entitled to recover the replacement cost of the burned building, plus prejudgment interest. The Trial Court denied Plaintiff recovery for business loss. Plaintiff appeals the amount awarded to him as the replacement cost and the Trial Court's denial of any additional recovery for business loss. Defendant argues that the assignment of the "proceeds" to Plaintiff did not entitle Plaintiff to recover any amount as replacement cost for repairs done after the assignment. Defendant also objects to the amount of the replacement cost found by the Trial Court and to the awarding of prejudgment interest. We reverse the Trial Court's award of prejudgment interest and affirm all other aspects of the judgment. http://www.tba.org/tba_files/TCA/malonerm.wpd JANICE SADLER, d/b/a XANADU VIDEO v. STATE OF TENNESSEE Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General and Michael J. Fahey, II, Assistant Attorney General, for the appellee, State of Tennessee. H. Tom Kittrell, Jr. and Eddie R. Davidson, Nashville, Tennessee, for the appellee, Janice Sadler. Judge: CANTRELL First Paragraph: The owner of a business filed a claim in the Tennessee Claims Commission for the loss of the business caused by a construction project that temporarily hindered ingress and egress to the claimant's location. The Claims Commissioner awarded the claimant the value of her business after finding that the State had negligently prolonged the construction project and had created a temporary nuisance. We reverse. http://www.tba.org/tba_files/TCA/sadlerj.wpd BERTHA LOU SMITH v. HARLEY WILSON SMITH Court:TCA Attorneys: Thomas R. Meeks, Gregory D. Smith, Clarksville, Tennessee, for the appellant, Harley Wilson Smith. Roland Robert Lenard, Clarksville, Tennessee, for the appellee, Bertha Lou Smith. Judge: COTTRELL First Paragraph: The issues in this post-divorce case arise because the former husband's waiver of military retirement pay in order to receive disability benefits affected the former wife's receipt of her portion of the retirement pay which had been awarded to her in the distribution of marital property. The former husband reduced his payments to the former wife, who filed a contempt petition, seeking to reinstate the previously ordered amounts. The trial court considered the intent embodied in the divorce decree, and determined that the former wife should continue to receive the amount she received at the time of the divorce, despite the fact that the former husband no longer received "retirement pay." In light of our Supreme Court's holding in Johnson v. Johnson, No. W1999-01232-SC-R11-CV, 2001 WL 173502 (Tenn. Feb. 23, 2001), we affirm. http://www.tba.org/tba_files/TCA/smithbe.wpd JEFF UTLEY, et al. v. JIM ROSE, et al. Court:TCA Attorneys: Jeff A. Utley, Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dawn Jordan, Assistant Attorney General, for the appellee, State of Tennessee. Judge: CANTRELL First Paragraph: Two prison inmates sued the Assistant Commissioner of Correction and four other correctional employees for failing to release them from maximum security. The trial court dismissed the suit for failure to state a claim upon which relief can be granted. We affirm. http://www.tba.org/tba_files/TCA/utleyj.wpd STATE OF TENNESSEE v. JAMES HENDERSON DELLINGER & GARY WAYNE SUTTON Court:TCCA Attorneys: Eugene B. Dixon; Charles Deas, Maryville, Tennessee, for appellant, James Henderson Dellinger, and F.D. Gibson, Maryville, Tennessee and John Goergen, Knoxville, Tennessee, for the appellant, Gary Wayne Sutton. John Knox Walkup, Attorney General & Reporter; Michael E. Moore, Solicitor General; Kenneth W. Rucker, Assistant Attorney General; and Mike Flynn, District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: On April 6, 1992, the Blount County Grand Jury indicted Appellants James Henderson Dellinger and Gary Wayne Sutton for one count each of first-degree murder in the death of Tommy Griffin. Following a jury trial, the Appellants were convicted of first degree murder. After a subsequent sentencing hearing the jury imposed the death penalty on both appellants. They raise thirty five alleged errors concerning both the guilt and sentencing phase of their trial. After a review of the entire record we have concluded there is no reversible error and we therefore AFFIRM the verdict. http://www.tba.org/tba_files/TCCA/dellingsutton.wpd STATE OF TENNESSEE v. WILLIAM PIERRE TORRES Court:TCCA Attorneys: William C. Talman and Susan E. Shipley, Knoxville, Tennessee, for the appellant, William Pierre Torres. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Amy L. Tarkington, Senior Counsel, Randall E. Nichols, District Attorney General, and Robert L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: McGEE OGLE First Paragraph: The appellant, William Pierre Torres, was convicted by a jury in the Knox County Criminal Court of one count of first degree murder by aggravated child abuse and was sentenced by the jury to death by electrocution. In this appeal as of right, the appellant challenges both his conviction and his sentence, raising the following issues for our consideration: (1) whether the 1993 version of Tenn. Code Ann. S 39-13-202(a)(4) violates the United States and Tennessee constitutions; (2) whether the indictment in this case is defective due to the State's failure to charge a separate count of aggravated child abuse; (3) whether, during a competency hearing conducted prior to the appellant's trial, the trial court erred in ruling that a licensed clinical social worker was qualified to render an opinion concerning the appellant's competence to stand trial; (4) whether, during the guilt/innocence phase of the appellant's trial, the trial court erred by declining to admit into evidence a redacted video cassette recording of an interview of the appellant by police investigators; (5) whether, during the guilt/innocence phase, the trial court erred in admitting testimony concerning the appellant's demeanor at East Tennessee Baptist Hospital following his offense; (6) whether, during the guilt/innocence phase, the trial court erred in admitting evidence concerning healed scars and old bruises found on the victim's body; (7) whether Tenn. Code Ann. S 39-13-204 (1993) and Tenn. Code Ann. S 39-13-206 (1993), Tennessee's death penalty statutes, violate the United States and Tennessee constitutions; (8) whether, under the United States and Tennessee constitutions, the application of the aggravating circumstance set forth in Tenn. Code Ann. S 39-13-204(i)(l) to the offense of first degree murder by aggravated child abuse fails to adequately narrow the class of death-eligible defendants; (9) whether, during the sentencing phase of the appellant's trial, the trial court erred in providing a Kersey instruction to the jury; and (10) whether, under the United States and Tennessee Constitutions, the appellant's sentence of death is disproportionate to the penalty imposed in similar cases. Following a thorough review of the entire record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/torreswp.wpd Different Private Acts Rewriting City Charter Date: March 8, 2001 Opinion Number: 01-031 http://www.tba.org/tba_files/AG/OP31.pdf Interpretation of Tenn. Code Ann. S 38-7-105 Date: March 12, 2001 Opinion Number: 01-032 http://www.tba.org/tba_files/AG/OP32.pdf Availability of Protection Orders in Cases of Domestic Abuse Date: March 12, 2001 Opinion Number: 01-033 http://www.tba.org/tba_files/AG/OP33.pdf Tax Rates for the McKenzie Special School District Date: March 12, 2001 Opinion Number: 01-034 http://www.tba.org/tba_files/AG/OP34.pdf Proposed Legislation Regarding Infant Abandonment Date: March 12, 2001 Opinion Number: 01-035 http://www.tba.org/tba_files/AG/OP35.pdf 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