April 5, 2001 Volume 7 — Number 063 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 07 New Opinion(s) from the Tennessee Court of Appeals 04 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 DONNA ROXBURY BREEDING (HENSON) v. KENNY FRANK BREEDING Court:TCA Attorneys: Joanie L. Abernathy, Franklin, Tennessee, and Howell Forrester, Pulaski, Tennessee, for the appellant Donna Roxbury Breeding Henson. Samuel B. Garner, Jr., Pulaski, Tennessee, for the appellee Kenny Frank Breeding. Judge: LILLARD First Paragraph: This is post-divorce custody dispute. In the original divorce decree, the mother was awarded custody of the parties' two minor children. Subsequently, when the mother was required to undergo brain surgery, the mother and father agreed, and the trial court ordered, that the father would have custody of the children until each child reached the age of twelve, at which point the child would decide with which parent he wished to live. After recovering from the surgery, the mother filed a petition to change custody citing, inter alia, the children's desire to live with her and the children's worsening behavior, which included running away from the father's home. The trial court denied the mother's petition, finding no material change in circumstances warranting a change of custody. From this order, the mother now appeals. We reverse and remand, finding that the trial court applied the incorrect standard in light of the prior agreed order. http://www.tba.org/tba_files/TCA/breedingrb.wpd JOHN DOE, et al. v. MAMA TAORI'S PREMIUM PIZZA, LLC, et al. Court:TCA Attorneys: Brian K. Frazier and Emily M. Smachetti, Nashville, Tennessee, for the appellants, John Doe, and his parents, Robert and Jane Doe. William B. Jakes, III, James F. Sanders, and A. Scott Ross, Nashville, Tennessee, for the appellee, Mama Taori's Premium Pizza, LLC. Judge: KOCH First Paragraph: This appeal arises out of homosexual conduct in the workplace between an adult employee and a sixteen-year-old, part-time employee. After the adult employee was arrested and charged with statutory rape and contributing to the delinquency of a minor, the minor employee and his parents filed suit in the Circuit Court for Sumner County seeking damages from the adult employee and the owner of the restaurant where the minor employee and the supervisor had worked. The restaurant denied liability and among its affirmative defenses asserted the defense of consent with regard to the minor's claims and the defense of comparative fault with regard to the claims of the minor's parents. The trial court denied the minor's and his parents' motions to strike these defenses but granted the minor and his parents permission to apply for an interlocutory appeal. We granted the interlocutory appeal and now hold that the trial court correctly denied the motions to strike the restaurant's defenses. http://www.tba.org/tba_files/TCA/doejohn.wpd EMMANUEL CHURCHES OF CHRIST, et al. v. FRANCES FOSTER, et al. Court:TCA Attorneys: William E. Farmer, Lebanon, Tennessee, for the appellants, Emmanuel Churches of Christ and Bishop Ronald W. Banks, as an Officer of the Emmanuel Churches of Christ. Frank Buck and Lena Ann Buck, Smithville, Tennessee, for the appellees, Frances Foster, individually and as a Trustee of Emmanuel Church of Christ at Smithville, a.k.a Smithville Emmanuel Church of Christ, and Nancy Ann Tramel, Brenda Hill, Jerry Hutchins, Sr., Doretta Hutchins, Dilbert Colwell, and Elizabeth Colwell, as Trustees of Emmanuel Church of Christ at Smithville, a.k.a. Smithville Emmanuel Church of Christ, and Emmanuel Bread of Life Frances Foster Ministries, Inc. Judge: CANTRELL First Paragraph: This is a dispute between a separating local church and the national organization over the church property in Smithville. The dispute involves the interpretation of two deeds, one in 1940 and another in 1943. The Chancery Court of DeKalb County held that the majority of the property belonged to the local congregation. Against the national church's arguments that the chancellor's order violated the separation of church and state and was contrary to the law and the facts, we affirm. http://www.tba.org/tba_files/TCA/emmanuelchurchesofchrist.wpd CHARLES I. HIGH v. P.D.Q. DISPOSAL, INC., ET AL Court:TCA Attorneys: Charles I. High, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General & Reporter; Douglas Earl Dimond, Assistant Attorney General, for the appellee, Tennessee Department of Employment Security. Charles J. Mataya and Jonathan E. Motley, Nashville, Tennessee, for the appellee, P. D. Q. Disposal, Inc. Judge: CAIN First Paragraph: Plaintiff/Appellant, Charles I. High, appeals dismissal of his pro se complaint filed in the Chancery Court of Davidson County, Tennessee, seeking judicial review of the denial of his application for unemployment benefits. The trial court dismissed the complaint for failure to join indispensable parties. We affirm the Chancellor. http://www.tba.org/tba_files/TCA/highcharlesI.wpd SUSAN S. HOEFLER v. PAUL J. HOEFLER Court:TCA Attorneys: Abby R. Rubenfeld, Nashville, Tennessee, for the appellant, Susan S. Hoefler. Clark Lee Shaw, Nashville, Tennessee, for the appellee, Paul J. Hoefler. Judge: KOCH First Paragraph: This appeal involves a dispute over a provision in a marital dissolution agreement in which the parties agreed to enroll their children in parochial school. The non-custodial parent declined to pay for the parties' younger child's private school expenses after the custodial parent unilaterally withdrew the child from parochial school and enrolled him in another private school. When the non- custodial parent filed a petition in the Circuit Court for Davidson County to terminate his child support because his younger child had reached the age of majority, the custodial parent insisted that he should reimburse her for nearly $23,800 in expenses she had incurred to send the child to private school. The trial court, relying on the terms of the marital dissolution agreement, declined to order the non-custodial parent to reimburse the custodial parent for these expenses. On this appeal, the custodial parent asserts that the non-custodial parent waived his opportunity to object to her choice of schools for the parties' son and should be estopped to deny his responsibility for these educational expenses. She also requests this court to grant a retroactive upward deviation from the child support the non-custodial spouse had been paying. We affirm the trial court. http://www.tba.org/tba_files/TCA/hoeflerss.wpd BRENDA F. SANDUSKY v. DANNY J. SANDUSKY Court:TCA Attorneys: W. C. Keaton, Hohenwald, Tennessee, for the appellant, Brenda F. Sandusky. James Y. Ross, Sr., Waynesboro, Tennessee, for the appellee, Danny J. Sandusky. Judge: KOCH First Paragraph: This appeal marks the third time that disputes over the child support provisions in the Sanduskys' 1988 marital dissolution agreement have reached this court. After we remanded the second appeal to calculate Mr. Sandusky's child support arrearage and to award Ms. Sandusky her legal expenses, Mr. Sandusky asserted new and different grounds to evade paying child support and also asserted that he should receive a credit against his arrearage because he had paid for a portion of his daughter's wedding. Following a bench trial, the Chancery Court for Wayne County terminated Mr. Sandusky's child support obligations regarding both of his children and reduced his arrearage by the amount of his financial contribution to his daughter's wedding. The trial court also awarded Ms. Sandusky only a portion of her legal expenses and declined to award her any discretionary costs. Ms. Sandusky asserts on this appeal that the trial court erred by relieving Mr. Sandusky of his child support obligations, by reducing Mr. Sandusky's arrearage by the amount of his contribution to his daughter for her wedding, by miscalculating the interest on Mr. Sandusky's arrearage, and by refusing to order Mr. Sandusky to pay all her legal expenses and discretionary costs. We agree with each of Ms. Sandusky's arguments. Therefore, we reverse the trial court's February 4, 2000 order and remand the case to the trial court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/sanduskybf.wpd SOUTH HARPETH FARMS, L.L.C., et al. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, et al. Court:TCA Attorneys: Hugh C. Howser, Nashville, Tennessee, for the appellants, South Harpeth Farms, L.L.C., James A. Webb, III and William H. Freeman. Karl F. Dean, Shayna Abrams and John L. Kennedy, Nashville, Tennessee, for the appellees, Metropolitan Government of Nashville and Davidson County and Metropolitan Board of Zoning Judge: CANTRELL First Paragraph: The Metropolitan Board of Zoning Appeals granted a special use exception to the Metropolitan Government of Nashville and Davidson County for the construction of a tower for a new emergency response system. The appellants, South Harpeth Farms, LLC, James A. Webb, III and William H. Freeman appeal the trial court's order. The trial court held that the granting of the special use exception was supported by material evidence and that the Board of Zoning Appeals did not act illegally, arbitrarily or fraudulently. The appellants appeal on the grounds that: (1) The Metropolitan Government of Nashville and Davidson County was not a proper applicant for a special use exception under the Metropolitan Zoning Regulations; (2) the Metropolitan Government of Nashville and Davidson County misrepresented to the Board of Zoning Appeals that the proposed site for the project was the only possible location for the radio tower; and (3) the Board of Zoning Appeals arbitrarily and capriciously granted the special use exception in the absence of any material evidence to support its decision. We affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/southharpethfarms.wpd STATE OF TENNESSEE v. THORSTEN JOHN BOGER Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Thorsten John Boger. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Angele M. Gregory, Assistant Attorney General, John Wesley Carney, Jr., District Attorney General, and C. Daniel Brollier, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: Thorsten John Boger appeals from the sentencing decision of the Montgomery County Circuit Court following his guilty pleas to two counts of class B felony sale of cocaine. Boger was sentenced to nine years in the Department of Correction on each count, with the sentences to be served concurrently. On appeal, he argues that he should have received the minimum sentence of eight years. Finding no error, we affirm. http://www.tba.org/tba_files/TCCA/bogertj.wpd STATE OF TENNESSEE v. RICHARD M. FAR, JR. Court:TCCA Attorneys: Gerald L. Melton, District Public Defender; Russell N. Perkins, Assistant Public Defender, Murfreesboro, Tennessee, for the appellant, Richard M. Far, Jr. Paul G. Summers, Attorney General & Reporter; David H. Finley, Assistant Attorney General, Nashville, Tennessee; William C. Whitesell, Jr., District Attorney General, Murfreesboro, Tennessee, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: On August 5, 1998, Richard M. Far, Jr., the Defendant and Appellant, was indicted by a Rutherford County Grand Jury for one count of arson and one count of setting fire to personal property. The Defendant was tried in absentia. At the close of the State's proof, the trial court granted the Defendant's motion for acquittal regarding setting fire to personal property. Following trial, the jury convicted the defendant of arson. After a subsequent sentencing hearing, also conducted in absentia, the trial court sentenced the defendant as a Range III, persistent offender to fourteen years incarceration. On appeal, the Defendant argues (1) that the trial court erred in excluding him from his trial, and (2) that the trial court erroneously sentenced the defendant. Because we find that rule 43 of the Tennessee Rules of Criminal Procedure prohibits trial in absentia when the defendant is not present at the beginning of trial, we reverse the judgement of the trial court and remand for a new trial. http://www.tba.org/tba_files/TCCA/farrichard.wpd STATE OF TENNESSEE v. PERRY THOMAS RANDOLPH Court:TCCA Attorneys: Charles L. Hardin, Cookeville, Tennessee, for the Appellee, Perry Thomas Randolph. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H. Findley, Assistant Attorney General; William Edward Gibson, District Attorney General; and David Patterson, Assistant District Attorney General, for the Appellant, State of Tennessee. Judge: HAYES First Paragraph: The State appeals from the Putnam County Criminal Court's order granting the Defendant's motion to suppress. The Defendant, Perry Thomas Randolph, was charged by indictment with one count of theft, one count of aggravated assault, one count of burglary, and one count of resisting arrest. The Defendant filed a motion to suppress, challenging his initial stop and seizure by the police. The trial court found the Defendant's seizure illegal because it failed to meet the minimal requirements of Terry v. Ohio. After review, we find it unnecessary to examine the issue of whether the officer had sufficient articulable facts to justify stopping the Defendant because we find no such stop occurred. The judgment of the trial court is reversed and the case remanded for further proceedings in accordance with this opinion. http://www.tba.org/tba_files/TCCA/randolphpt.wpd STATE OF TENNESSEE v. ELPIDIO VALDEZ Court:TCCA Attorneys: Richard McGee, Nashville, Tennessee, for the appellant, Elpidio Valdez. Paul G. Summers, Attorney General & Reporter; Todd R. Kelley, Assistant Attorney General; Victor S. Johnson, District Attorney General and John Zimmerman, Assistant District Attorney for the appellee, State of Tennessee. Judge: SMITH First Paragraph: On October 9, 1997, a Davidson County Grand Jury indicted Elpidio Valdez, the Defendant and Appellant, for possession with intent to deliver 300 grams or more of cocaine. The Defendant moved to suppress the cocaine, but the trial court denied the Defendant's motion. Following a subsequent jury trial, the Defendant was convicted and sentenced to fourteen years as a mitigated offender. On appeal, the Defendant claims (1) that the trial court erroneously denied the Defendant's suppression motion, and (2) that the trial court erroneously denied the Defendant's motion for a judgment of acquittal. Because we find the circumstantial evidence in this case insufficient to sustain the jury's verdict, we reverse the judgment of the trial court and dismiss the indictment against the defendant. http://www.tba.org/tba_files/TCCA/valdezelpidio.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/valdeze1.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? 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