March 28, 2001
Volume 7 — Number 057

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
14 New Opinion(s) from the Tennessee Court of Appeals
04 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
 

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Lucian T. Pera
Editor-in-Chief, TBALink

						
GABRIEL J. ALWIN v. PERCY PITZER, et al.

Court:TCA

Attorneys:     

Gabriel J. Alwin, Pro Se.

No appearance for appellees.                     

Judge: FARMER

First Paragraph:

An inmate filed a petition for writ of habeas corpus alleging that the
sentencing court in Wisconsin was without authority to convict on one
of the three counts under which he was convicted and that his sentence
had expired.  The trial court dismissed for failure to state a claim
upon which relief can be granted.  We affirm.

http://www.tba.org/tba_files/TCA/alwingabrielj.wpd


DONALD E. BLACKBURN, CO-EXECUTOR OF ESTATE OF GEORGE C. BLACKBURN, DECEASED v. BETTY BLACKBURN Court:TCA Attorneys: George P. Collier, Jr., Collierville, For Appellant, Donald E. Blackburn Jerry H. Schwartz, Memphis, For Appellee, Betty Blackburn Judge: CRAWFORD First Paragraph: Executor of deceased's estate appeals the probate court order closing the deceased's conservatorship. The final order closing the conservatorship, among other things, set aside a part of the order appointing conservator which ordered the appointed conservator to convey to the ward real estate owned by the ward that she had previously conveyed to herself as attorney in fact for the ward. Executor appeals. http://www.tba.org/tba_files/TCA/blackburngeo.wpd
JAMES EDWARD CRAWFORD v. RAY THOMASON, et al. Court:TCA Attorneys: Granville S.R. Bouldin, Jr., Murfreesboro, Tennessee, for the appellant, James Edward Crawford. Thomas L. Reed, Jr. and Jerry E. Farmer, Murfreesboro, Tennessee, for the appellees, City of Murfreesboro and Roger Haley. Judge: KOCH First Paragraph: This appeal stems from a hostile work environment claim involving the Department of Streets and Signs of the City of Murfreesboro. After enduring approximately three years of racial harassment by his immediate supervisors, an employee of the Department of Streets and Signs filed suit in the Chancery Court for Rutherford County against the City of Murfreesboro, the city manager, and his two supervisors seeking damages and injunctive relief under the Tennessee Human Rights Act. The City moved for summary judgment, pointing out that the offending supervisors had been terminated less than one month after the employee brought their conduct to the attention of the public works director. The trial court granted the summary judgment and dismissed the complaint. The employee has appealed. After reviewing the record in light of the principles announced in Parker v. Warren County Util. Dist., 2 S.W.3d 170 (Tenn. 1999), we have determined that the City is entitled to a judgment as a matter of law. Accordingly, we affirm the summary judgment. http://www.tba.org/tba_files/TCA/crawfordje.wpd
RONALD L. DAVIS v. ROBERT SANDERS, et al. Court:TCA Attorneys: Ronald L. Davis, Only, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Ellen H. Pollack, Assistant Attorney General, for the appellee, State of Tennessee. Judge: CANTRELL First Paragraph: A prisoner filed a petition under the Public Records Act, asking the court to order a prosecutor and a police chief to send him their files on his case. The prosecutor claimed that he had in fact sent a copy of the requested files to the petitioner. The trial court dismissed the petition. We reverse. http://www.tba.org/tba_files/TCA/davisronald2.wpd
MICHAEL DAWN FRISBEY v. DOROTHY MARIE FRISBEY Court:TCA Attorneys: David W. Garrett, Nashville, Tennessee, for the appellant, Michael Dawn Frisbey. R. Eddie Davidson, Nashville, Tennessee, for the appellee, Dorothy Marie Frisbey. Judge: CAIN First Paragraph: In this divorce case, Husband appeals the trial court's decree as it pertains to the division of marital property. The trial court determined that appreciation of Husband's pre-marriage retirement and investment accounts was marital property and made its division of marital assets based on the inclusion of this increase. The trial court also included a $33,000 check, which Husband received from a pre-marriage investment, in the marital assets. Husband alleges that the inclusion of the appreciation in his retirement and investment accounts, as well as the inclusion of the $33,000 partnership check, in the marital estate resulted an inequitable division of marital property. We agree with Husband on this issue and modify the trial court's ruling accordingly. http://www.tba.org/tba_files/TCA/frisbeymichael.wpd
THOMAS HORACE JOINER v. DORA BELL TAYLOR JOINER Court:TCA Attorneys: David D. Wolfe, Dickson, Tennessee, for the appellant, Dora Bell Taylor Joiner. Jack M. Rudolph, Clarksville, Tennessee, for the appellee, Thomas Horace Joiner. Judge: COTTRELL First Paragraph: Wife appeals the conversion from a divorce from bed and board (now known as a "legal separation") to an absolute divorce, claiming the trial court was required to hold another evidentiary hearing concerning the support and property rights of the parties. The parties had ostensibly agreed to a final division of property at the time of the divorce from bed and board, and the trial court had held a later hearing regarding the fairness of the division and Wife's capacity to make such an agreement. Because we find that the trial court made "a final and complete adjudication of the support and property rights of the parties," as required by statute, when it incorporated the agreement of the parties at the time of the divorce from bed and board, we affirm the trial court. http://www.tba.org/tba_files/TCA/joinert.wpd
HAROLD EUGENE LOVELACE, D/B/A THE LAST CHANCE CLUB, and UNDERGROUND II, INC., D/B/A THE BOILER ROOM, v. THE CITY OF KNOXVILLE, TENNESSEE, ET AL. Court:TCA Attorneys: Michael S. Kelley, Law Director, Hillary B. Browning, Assistant City Attorney, and Charles Swanson, Knoxville, Tennessee, for Appellant, City of Knoxville. Jerrold L. Becker and Samuel W. Brown, Knoxville, Tennessee, for Appellees, Harold Eugene Lovelace, d/b/a The Last Chance Club, and Underground II, Inc., d/b/a The Boiler Room. Judge: FRANKS First Paragraph: In this Declaratory Judgment action the Trial Court held portions of a City Ordinance unconstitutional relative to notice provisions, the term "open for business" and "open display". We affirm in part, reverse in part and remand. http://www.tba.org/tba_files/TCA/lovelaceh.wpd
KEITH PFISTER v. TAMMY SEARLE (MORETTI); IN RE: A. S., A MINOR Court:TCA Attorneys: Sandra Jones, Nashville, Tennessee, for the appellant, Tammy Searle Moretti. P. Edward Schell, Franklin, Tennessee, for the appellee, Keith Pfister. Judge: COTTRELL First Paragraph: The appellant appeals from the trial court's judgment finding her in criminal and civil contempt for violation of an order establishing visitation for the father of her child. Because the appellant was not provided the notice required for criminal contempt, we vacate that holding; because the appellant complied with the court's order to produce her child, thereby purging her civil contempt, that judgment is now moot, and we decline to address it. http://www.tba.org/tba_files/TCA/pfisterk.wpd
MITCHELL TARVER v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Mitchell Tarver, Clifton, 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: A prison inmate filed a petition seeking a declaratory judgment that he was entitled to parole consideration in accordance with his plea bargain. The trial court dismissed the petition on summary judgment. We affirm. http://www.tba.org/tba_files/TCA/tarverm.wpd
DORIS JEAN TIPTON v. ELIZABETH QUINN Court:TCA Attorneys: Tony L. Maples, Nashville, Tennessee, for the appellant, Elizabeth Quinn. C. Edward Scudder, Jr., Nashville, Tennessee, for the appellee, Doris Jean Tipton. Judge: COTTRELL First Paragraph: This is a breach of contract case involving agreements for Defendant to board and breed Plaintiff's horses for a share of the resulting foals. Shortly after the parties entered into an oral agreement, Defendant memorialized the agreement in a handwritten note. The agreement was subsequently reduced to more detailed writings by Plaintiff, which both parties signed. Plaintiff later claimed that Defendant breached portions of the agreement which required her to timely breed the mares, provide insurance, adequately care for and maintain the horses, provide adequate veterinary care for the horses, allow inspection of the horses, and halter-break foals. Defendant claimed that the agreement prepared by Plaintiff did not reflect the parties' original oral contract. The trial court granted Plaintiff partial summary judgment on the portion of her breach of contract claim alleging that Defendant failed to obtain insurance. After a bench trial, the court awarded Plaintiff compensatory damages for breach of contract as well as attorney's fees. Defendant appeals those decisions. We affirm as modified. http://www.tba.org/tba_files/TCA/tiptond.wpd
ARLON H. WAY, vs. JIM E. HALL, Superintendent of Cumberland County Schools and THE CUMBERLAND COUNTY BOARD OF EDUCATION Court:TCA Attorneys: Dean B. Farmer and Keith L. Edmiston, Knoxville, Tennessee, for Defendants-Appellants, Jim E. Hall, Superintendent of Cumberland County Schools, and the Cumberland County Board of Education. Richard L. Colbert, Nashville, Tennessee, for Plaintiff-Appellee, Arlon H. Way. Judge: FRANKS First Paragraph: Plaintiff was discharged as a teacher for unprofessional conduct, and on appeal to the Trial Court he was reinstated. The Trial Court found the school Board had acted arbitrarily and there was no material evidence to sustain the charge of unprofessional conduct. We reverse and reinstate the Board's decision. http://www.tba.org/tba_files/TCA/waya.wpd
DONNA WINSTEAD, DARRELL WINSTEAD, and DANNIE WINSTEAD, The Surviving children and Next of Kin of ILINE CATHY WINSTEAD, Deceased, by Their Next Friend and Grandmother, IRENE JOHNSON, v. CLAIBORNE COUNTY HOSPITAL AND NURSING HOME Court:TCA Attorneys: Mark E. Floyd, Knoxville, Tennessee, for Appellants. James D. Estep, III, Tazewell, Tennessee, for Appellee. Judge: FRANKS First Paragraph: In this wrongful death action, the Trial Court held that defendant's nurses met the standard of care required of them in the treatment and care of the deceased, and dismissed the case. On appeal, we reverse and enter Judgment for damages. http://www.tba.org/tba_files/TCA/windsteadd.wpd
ANTHONY GALE WIX v. CATHY MARIE WIX Court:TCA Attorneys: Christopher L. Dunn, Columbia, Tennessee, for the appellant, Anthony Gale Wix. Michael E. Spitzer, Hohenwald, Tennessee, for the appellee, Cathy Marie Wix. Judge: First Paragraph: This appeal involves the dissolution of an eighteen-year marriage by the Chancery Court for Lewis County. The trial court awarded the wife the divorce after concluding that the husband's continuing extramarital affair amounted to inappropriate marital conduct. To protect the "moral integrity of the marital relationship," the trial court granted the wife sole custody of the parties' two minor children and declined to grant the husband any visitation rights. In addition, the trial court ordered the husband to pay more than the minimum child support required by the child support guidelines because he was willfully underemployed and because he would not be exercising standard visitation with the children. The husband asserts on this appeal that the trial court's decisions with regard to custody and visitation, child support, and the division of the marital estate lack evidentiary support. We have determined that the trial court's disapproval of the husband's extramarital affair inappropriately colored its decisions regarding visitation and child support. Accordingly, we affirm the manner in which the trial court divided the parties' marital estate and reverse the trial court's visitation and child support awards. http://www.tba.org/tba_files/TCA/wixag.wpd
FRANCES M. WOLFE v. THE KROGER COMPANY Court:TCA Attorneys: Shannon D. Elsea, Memphis, Tennessee, for the appellant, Frances M. Wolfe. Kenneth R. Rudstrom and Mildred L. Sabbatini, Memphis, Tennessee, for the appellee, The Kroger Company. Judge: FARMER First Paragraph: Plaintiff sued Defendant to recover for injures she received from a fall inside Defendant's store. The trial court granted Defendant's motion for summary judgment. We affirm based on Plaintiff's failure to counter Defendant's evidence that it neither caused the condition which caused the fall nor did it have notice of that condition. http://www.tba.org/tba_files/TCA/wolfefrancesm.wpd
MILBURN L. EDWARDS v. STATE OF TENNESSEE Court:TCCA Attorneys: Brett B. Stein, Memphis, Tennessee, for the appellant, Milburn L. Edwards. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; Lee Coffee, Assistant District Attorney General; and Steve Jones, Assistant District Attorney General; for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: In 1982, the Petitioner pled guilty in Shelby County to two counts of rape, three counts of robbery, one count of robbery with a deadly weapon, four counts of burglary, one count of attempted burglary, one count of first degree criminal sexual conduct, one count of assault with intent to commit criminal sexual conduct, and one count of a crime against nature. The Petitioner received an effective sentence of ten years. In 1991, the Petitioner was convicted in Davidson County of twenty-one counts of rape, one count of aggravated rape, two counts of first-degree burglary, one count of second-degree burglary, two counts of aggravated burglary, one count of robbery, and one count of assault with intent to commit rape. In 1997, the Petitioner filed a post-conviction petition challenging his 1982 convictions and sentence. Following an evidentiary hearing, the trial court concluded that the Petitioner's petition for post-conviction relief was barred by the statute of limitations. The Petitioner now appeals the trial court's ruling. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/edwardsm.wpd
STATE OF TENNESSEE v. TYRONE PIERCE Court:TCCA Attorneys: Phyllis Aluko and W. Mark Ward, Assistant Public Defenders, for the appellant, Tyrone Pierce. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; William L. Gibbons, District Attorney General, and John W. Campbell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant pled guilty to criminal attempt to commit aggravated sexual battery, a Class C felony. Pursuant to a plea agreement he agreed to a three-year sentence as a Range I Standard Offender, with the manner of service to be determined after a hearing by the trial court. The trial court sentenced the defendant to serve 270 days in the workhouse on weekends ("day for day") from 7:00 p.m. on Fridays to 7:00 p.m. on Sundays and five years probation with a 10:00 p.m. curfew on weekdays. The defendant contends he should have received full probation or some other less restrictive form of alternative sentencing. We affirm the trial court's denial of full probation but modify the time of service in the workhouse on weekends to 104 days. http://www.tba.org/tba_files/TCCA/piercet.wpd
ROBERT M. SNEED v. STATE OF TENNESSEE Court:TCCA Attorneys: Murray C. Groseclose, III, Kingsport, Tennessee, for the appellant, Robert M. Sneed. Paul G. Summers, Attorney General and Reporter; Patricia C. Kusmann, Assistant Attorney General; Greeley Wells, District Attorney General; and James F. Goodwin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant was convicted of DUI, second offense, and driving on a revoked license, second offense. His convictions were affirmed on direct appeal, and he subsequently filed for post- conviction relief, which was denied. In this appeal, the Defendant contends that the post-conviction court erred in denying his request for post-conviction relief, arguing that he was denied the effective assistance of counsel at trial; that he was denied a fair trial because the trial judge refused to recuse himself; and that the post-conviction court erred in refusing to admit certain evidence. We affirm the denial of the Defendant's request for post-conviction relief. http://www.tba.org/tba_files/TCCA/sneedrm.wpd
STATE OF TENNESSEE v. NORMAN B. THOMPSON Court:TCCA Attorneys: Mark E. Stephens, District Public Defender; Paula R. Voss, Assistant Public Defender, Knoxville, Tennessee, for the appellant, Norman B. Thompson. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Leon Franks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Norman B. Thompson, appeals as of right from the revocation of his probation. We find no abuse of discretion in the revocation; thus, we affirm the judgment of the trial court revoking the Defendant's probation. http://www.tba.org/tba_files/TCCA/thompsonnb.wpd
Authority of General Sessions Court to Reduce Bail Amount Date: March 26, 2001 Opinion Number: 01-043 http://www.tba.org/tba_files/AG/OP43.pdf
Persons Exempt from licensing under Tenn. Code Ann. 55-50-304(5)(B) Date: March 26, 2001 Opinion Number: 01-044 http://www.tba.org/tba_files/AG/OP44.pdf
Political Action Committee Fundraising for Referendum Date: March 26, 2001 Opinion Number: 01-045 http://www.tba.org/tba_files/AG/OP45.pdf
Lobbyist Contributions to Legislator Running for Federal Office Date: March 26, 2001 Opinion Number: 01-046 http://www.tba.org/tba_files/AG/OP46.pdf
Constitutionality of SB 1547--Amendment to Tennessee Petroleum Trade Practices Act Date: March 26, 2001 Opinion Number: 01-047 http://www.tba.org/tba_files/AG/OP47.pdf

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