March 20, 2001 Volume 7 -- Number 051 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 03 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 12 New Opinion(s) from the Tennessee Court of Appeals 01 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 DAVID COLEMAN v. LUMBERMENS MUTUAL CASUALTY COMPANY Court:TSC - Workers Comp Panel Attorneys: Andrew C. Clarke and R. Sadler Bailey, Memphis, Tennessee, for the appellant, David Coleman. Marc A. Sorin and S. Newton Anderson, Memphis, Tennessee, for the appellee, Lumbermens Mutual Casualty Company Judge: WALKER First Paragraph: Employee was injured when a sofa fell on him at work, and was awarded twenty five percent permanent partial disability to the body as a whole. On appeal, the award was affirmed, but the court determined that the evidence supported a finding of permanent partial disability for a psychiatric injury, and remanded to the trial court for a determination as to the percentage. Coleman v. Lumberman's Mutual Casualty Co., 2000 Tenn. LEXIS 98; 2000 WL 236424 (Tenn., March 2, 2000). On remand the Chancellor determined that plaintiff was entitled to fifty percent permanent partial disability total for both shoulder and psychiatric injuries. http://www.tba.org/tba_files/TSC_WCP/colemandavid.wpd METHODIST HOSPITAL OF DYERSBURG, INC., v. LINDA AMS Court:TSC - Workers Comp Panel Attorneys: Timothy G. Wehner, Rainey, Kizer, Butler, Reviere & Bell, Jackson, Tennessee, for the appellant, Methodist Hospital of Dyersburg, Inc. Damon E. Campbell, Conley, Campbell, Moss & Smith, Union City, Tennessee, for the appellee, Linda Ams. Judge: LOSER 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. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employer-appellant contends the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded that the evidence preponderates against an award based on five times the undisputed medical impairment rating. http://www.tba.org/tba_files/TSC_WCP/methodist.wpd KATHY RILEY v. THE TRAVELERS INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: S. Newton Anderson, Marc A. Sorin, Spicer, Flynn & Rudstrom, Memphis, Tennessee, for the appellant, The Travelers Insurance Company. Gayden Drew, IV, Drew & Martindale, Jackson, Tennessee, for the appellee, Kathy Riley. Judge: LOSER 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. S 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer's insurer, Travelers, insists the employee's injury did not arise out of the employment and that the award of permanent partial disability benefits based on 55 percent to the right leg is excessive. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. http://www.tba.org/tba_files/TSC_WCP/rileykathy.wpd CORPORATE CATERING, INC. v. CORPORATE CATERING, ETC., LLC, et al. Court:TCA Attorneys: David O. Huff, Nashville, Tennessee, for the appellant, Corporate Catering, Inc. Jay R. Slobey, Nashville, Tennessee, for the appellees, Corporate Catering, Etc., LLC and R. Michelle Blaylock. Judge: KOCH First Paragraph: This appeal involves a dispute over the use of a defunct catering business's trade name and menu. The owner of the catering business filed suit in the Circuit Court for Davidson County seeking damages for conversion, breach of common-law copyright, and infringement of its business trade name and the distinctive names of its menu items. The trial court granted the defendants' motions for directed verdict regarding the conversion and the common-law copyright claims. After the jury returned a $12,500 verdict on the infringement of the trade name claim, the trial court granted the defendants' motion for a judgment in accordance with their motion for a directed verdict. In the alternative, the trial court, acting as thirteenth juror, set the verdict aside and granted a new trial. On this appeal, the defunct catering business asserts that the trial court erred by dismissing its claims for conversion and breach of common-law copyright. It also asserts that the trial court erred by failing to enter a judgment on the jury's verdict on the trade name claim. We have determined that the trial court decisions are supported by the law, and therefore, we affirm. http://www.tba.org/tba_files/TCA/corpcater.wpd FIRST CITIZENS BANK OF CLEVELAND v. CAROL CROSS Court:TCA Attorneys: Richard A. Fisher, Cleveland, Tennessee, for the appellant, Carol Cross. Roger E. Jenne, Cleveland, Tennessee, for the appellees, First Citizens Bank of Cleveland and Larry McSpadden. Judge: SUSANO First Paragraph: This is the second time that this case has been before us on appeal. The case originated as a suit on two promissory notes executed by the defendant in favor of the plaintiff and secured by deeds of trust on real property owned by the defendant. The defendant filed a pleading incorporating a counterclaim, and a third-party complaint against one of the plaintiff's employees, which pleading alleges that the plaintiff, through its employee, breached its undertaking to arrange for additional insurance coverage on the mortgaged property. On the first appeal, this Court held that the trial court erred in denying the defendant's request for a jury trial. On remand, the plaintiff and the third-party defendant moved for summary judgment on the ground that the parol evidence rule bars consideration of the defendant's claim that the plaintiff, through its employee, agreed to contact the agent for the insurance company and arrange for additional insurance on the mortgaged property. The trial court granted the movants summary judgment and, upon confirmation of a Master's report as to the amounts due under the notes, entered a judgment against the defendant. The defendant appeals. We affirm the trial court's grant of summary judgment to the plaintiff on the promissory notes; however, we vacate the grant of summary judgment as to the defendant's counterclaim and third-party complaint. http://www.tba.org/tba_files/TCA/firstcitizens.wpd MORRISTOWN FIREFIGHTERS ASSOCIATION v. CITY OF MORRISTOWN, et al. Court:TCA Attorneys: Richard C. Jessee and Lori L. Jessee, Morristown, Tennessee, for the Appellants, City of Morristown, Mayor John R. Johnson, and Morristown City Council Members, A. Quillen Eiseman, Claude Jinks, William J. Rooney and Kay Senter. Timothy A. Priest and Adam M. Priest, Knoxville, Tennessee, for the Appellee, Morristown Firefighters Association. Judge: SWINEY First Paragraph: In July 1999, two vacancies arose within the City of Morristown's fire department ("Fire Department") due to the retirement of a battalion chief and a lieutenant. The Civil Service Act provides the procedure for filling vacancies in Morristown's fire department and requires the City to fill vacancies from a Roster prepared by the Civil Service Board ("Board"). When the two vacancies occurred, the Roster in place had been certified in August 1998, and updated by the Board in November 1998 ("1998 Roster"). The City, however, wanted the Board to prepare a new Roster. The Board did not create a new Roster until September 1999 ("1999 Roster"), and in the meantime, the two positions remained unfilled. The City filled the vacancies from the 1999 Roster. The Morristown Firefighters Association ("Plaintiff") brought suit against the City of Morristown, its mayor and City Council members ("Defendants"), alleging violations of the Civil Service Act for Defendants' failure to fill the vacancies from the 1998 Roster. The Trial Court held in favor of Plaintiff and ordered Defendants to fill the two vacancies from the 1998 Roster. Defendants appeal. We affirm. http://www.tba.org/tba_files/TCA/morristownfirefighters.wpd MARIA NELSON v. STATE OF TENNESSEE DEPARTMENT OF SAFETY Court:TCA Attorneys: Maria Nelson, pro se Paul G. Summers, Attorney General & Reporter, Michael A. Meyer, Assistant Attorney General, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from entry of a default judgment by the Appellee against the Appellant following the Appellant's failure to appear at a scheduled hearing. The Appellant filed a petition for judicial review with the Chancery Court of Davidson County. The trial court affirmed. The Appellant appeals from the Chancery Court of Davidson County's decision affirming the default judgment entered against the Appellant. For the reasons stated herein, we reverse the trial court's decision. http://www.tba.org/tba_files/TCA/nelsonmaria.wpd JERRY THOMAS RICKS v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: John W. Heacock, for Appellant Paul G. Summers, Attorney General & Reporter, Michael E. Moore, Solicitor General, Kimberly J. Dean, Deputy Attorney General, for Appellee Judge: HIGHERS First Paragraph: This case arises from the commutation of the Appellant's prison sentence from eighty-five years imprisonment to forty years. The Appellant's commutation was revoked after he was arrested on misdemeanor charges. The revocation occurred following the expiration of the term of the commuted sentence but within the term of the original sentence. The Appellant filed a petition for declaratory judgment with the Chancery Court of Davidson County, claiming that the Appellee failed to correctly calculate his sentence expiration date. The trial court dismissed the Appellee's petition. http://www.tba.org/tba_files/TCA/ricksjerrythomas.wpd KAREN ELAINE (BROCK) ROTH v. RICHARD DANIEL ROTH Court:TCA Attorneys: F. Dulin Kelly, Hendersonville, Tennessee, for the appellant, Richard Daniel Roth. Michael W. Edwards, Hendersonville, Tennessee, for the appellee, Karen Elaine (Brock) Roth. Judge: KOCH First Paragraph: This appeal involves the dissolution of a sixteen-year marriage. The wife filed suit in the Circuit Court for Sumner County seeking a divorce and custody of the parties' three children. The husband did not contest the divorce but requested custody of the parties' two older children. Following a bench trial, the trial court awarded the wife a divorce on the ground of adultery and granted her custody of the children. On this appeal, the husband takes issue with the trial court's valuation of marital property, the allocation of marital debt, and the award of long-term spousal support. We have concluded that the trial court's decisions regarding the valuation of the marital property should be modified but that the remainder of the judgment should be affirmed. http://www.tba.org/tba_files/TCA/rothke.wpd GEORGE DAVID SCOTT v. LINDA TRIBBLE SCOTT Court:TCA Attorneys: Robert Todd Jackson, Nashville, Tennessee, for the appellant, Linda Tribble Scott. Jack Norman, Jr., Nashville, Tennessee, for the appellee, George David Scott. Judge: KOCH First Paragraph: This appeal involves a post-divorce dispute over child support. Fifteen months after the parties were divorced in the Circuit Court for Davidson County, the custodial spouse petitioned the trial court to increase the noncustodial spouse's child support obligation because he was voluntarily underemployed and to hold the noncustodial spouse in criminal contempt. After being threatened with Tenn. R. Civ. P. 11 sanctions, the custodial spouse abandoned her criminal contempt allegations. Following a hearing, the trial court found that the noncustodial spouse was not voluntarily underemployed but increased his child support prospectively because of an anticipated increase in his income. On this appeal, the custodial parent takes issue with the trial court's refusal to find that the noncustodial parent was voluntarily underemployed, to make the increased child support retroactive to the date of her petition, and to award her only a portion of her legal expenses. We affirm the trial court and further find that the custodial spouse is not entitled to an additional award for the legal expenses she has incurred on this appeal. http://www.tba.org/tba_files/TCA/scottgd.wpd IN RE: SJLL Court:TCA Attorneys: Johnny V. Dunaway, LaFollette, Tennessee, for Defendant-Appellant, Tobby Joe Welch. Paul G. Summers, Attorney General and Reporter, and Kim Beals, Assistant Attorney General, Nashville, Tennessee, for Appellee, State of Tennessee. Judge: FRANKS First Paragraph: In paternity action, defendant appeals the Trial Judge's refusal to grant T.R.C.P. Rule 60 relief on the grounds that plaintiff's non-suit was improper, and as a result defendant was denied his right to a jury trial. We affirm. http://www.tba.org/tba_files/TCA/sjll.wpd Robin Stewart v. Keith D. Stewart Court:TCA Attorneys: W. Andrew Fox, Knoxville, Tennessee, for the Appellant Keith D. Stewart. Gregory S. McMillan, Knoxville, Tennessee, for the Appellee Robin Stewart. Judge: SWINEY First Paragraph: Robin Stewart ("Wife") obtained an ex parte order of protection against Keith D. Stewart ("Husband") based on allegations of physical and threatened physical abuse. Husband made no allegations or complaints of any acts of aggression by Wife. Prior to the hearing on whether to extend the order of protection, Husband filed a Motion to Dismiss and/or Motion for Summary Judgment. Husband argued there had been no determination by a police officer that Wife was not a "primary aggressor" as required by Tenn. Code Ann. S 36-3-601(9). Because this determination had not been made, Husband argued Wife was not a "victim" pursuant to Tenn. Code Ann. S 36-3- 602 and, therefore, could not obtain an order of protection. Wife admitted there had been no determination by a police officer that she was not a primary aggressor. Wife argued, however, that such a determination was not necessary before she could obtain an order of protection. The Trial Court denied the motion, stating that Husband's interpretation of the statute, while a possible interpretation, was not in accord with the legislative intent. An Agreed Order of Protection Without Social Contact which provided that Husband's agreeing to the order did not constitute a waiver of any rights to appeal the denial of his motion was entered. Husband appeals the Trial Court's denial of his Motion to Dismiss and/or Motion for Summary Judgment. We affirm. http://www.tba.org/tba_files/TCA/stewartr.wpd PATSY (STILES) TEMPLETON v. JEFFREY LYNN STILES Court:TCA Attorneys: Gerald L. Ewell, Jr., for Appellant Bernard K. Smith, Thomas F. Bloom, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a hearing in the Circuit Court of Warren County wherein the court divided the property of the Appellant and the Appellee following their divorce. In relevant part, the trial court awarded all the guns and retirement accounts to the Appellee and refused to hear the Appellant's testimony concerning improvements made to the real estate. The Appellant appeals from the order of the Circuit Court of Warren County, dividing the property of the Appellant and the Appellee. For the reasons stated herein, we affirm in part and reverse in part the trial court's decision. http://www.tba.org/tba_files/TCA/templetonpatsy.wpd UNITED TELEPHONE-SOUTHEAST, INC., v. TENNESSEE REGULATORY AUTHORITY Court:TCA Attorneys: R. Dale Grimes, Nashville, Tennessee, James B. Wright, Wake Forest, North Carolina, for the appellant, United Telephone-Southeast. H. Edward Phillips, III, Nashville, Tennessee, for the appellee, Tennessee Regulatory Authority. Paul G. Summers, State Attorney General, Michael E. Moore, Solicitor General, Vance L. Broemel, Assistant Attorney General, Nashville, Tennessee, for the appellee, Consumer Advocate. Judge: COTTRELL First Paragraph: United Telephone-Southeast, Inc. challenges a decision of the Tennessee Regulatory Authority denying a rate increase for residential integrated services digital network (ISDN) services on the ground that ISDN is a basic service under Tenn. Code Ann. S65-5-208(a). Because ISDN provides functionality additional to the provision of basic services, we reverse. http://www.tba.org/tba_files/TCA/unitedtele.wpd LARRY R. WAKEFIELD v. KIMBERLY D. LONGMIRE Court:TCA Attorneys: John E. Quinn and Todd C. McKee, Nashville, Tennessee, for the appellant, Coregis Insurance Company. Dail R. Cantrell, Clinton, Tennessee, for the appellee, Larry R. Wakefield. Judge: SUSANO First Paragraph: This litigation arose out of an accident involving a vehicle owned by Anderson County and being driven at the time of the accident by an employee of the County. The employee sued the driver of the other vehicle involved in the accident. Incident to his original filing, the employee secured service of process on the County's liability insurance carrier, for the purpose of invoking the uninsured motorist coverage of the County's policy. The defendant, Kimberly D. Longmire, filed an answer. She did not seek to impose liability on the employee or the County. Following a jury verdict for the employee in the amount of $641,000, the trial court ruled that the employee's recovery against the uninsured motorist carrier was not capped at $130,000, the limit of the County's liability for an individual claim under the Governmental Tort Liability Act. The carrier, whose policy provided for $1,000,000 of uninsured motorist coverage, appeals, claiming that its obligation under the policy, despite the higher contract limit, is capped at $130,000. The plaintiff contends that the carrier did not appeal from a final order and that its appeal is frivolous. We affirm but do not find the carrier's appeal to be frivolous. http://www.tba.org/tba_files/TCA/wakefieldlr.wpd STATE OF TENNESSEE v. HOMER L. EVANS Court:TCCA Attorneys: Vic Pryor and Kathy Parrott, Jacksboro, Tennessee, for the appellant, Homer L. Evans. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; William Paul Phillips, District Attorney General; and Michael Olin Ripley, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals from the trial court's denial of alternative sentencing. 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