April 11, 2001 Volume 7 — Number 067 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 11 New Opinion(s) from the Tennessee Court of Appeals 00 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 ESTATE OF JOHN E. ACUFF, SR., et al. v. BRENDA O'LINGER Court:TCA Attorneys: John W. Cleveland, Sweetwater, Tennessee and Marshall A. Raines, Jr., Jasper, Tennessee, for the appellant, Brenda O'Linger. Bob E. Lype, Chattanooga, Tennessee, for the appellees, Estate of John E. Acuff, Sr., by and through its Co-administrators, and John E. Acuff, Jr., Ella Joy Engdahl, Royce Basil Acuff, and Joyce Faye Burkhalter, Individually. Judge: CAIN First Paragraph: The singular dispositive question on this appeal is whether or not two deeds, purportedly executed by the late John E. Acuff, Sr., conveying certain property to Brenda O'Linger, bear the forged signature of John E. Acuff, Sr. An advisory chancery jury, acting under "preponderance of the evidence" instructions, held that the signatures were forged thereby voiding the two deeds. The chancellor adopted, without comment, the findings of the advisory jury and entered judgment for the plaintiffs voiding the two deeds. Defendant appeals and upon consideration of the record we reverse the chancellor. http://www.tba.org/tba_files/TCA/acuffjohnest.wpd IN THE MATTER OF ALL ASSESSMENTS, REVIEW OF AD VALOREM ASSESSMENTS OF PUBLIC UTILITY COMPANIES FOR TAX YEAR 1998 Court:TCA Attorneys: Jeffrey D. Moseley, Franklin, For Appellant, Williamson County Donnie E. Wilson, Robert B. Rolwing, Memphis, For Appellant, Shelby County Jean Dyer Harrison, Nashville, Co-Counsel, Williamson County Paul D. Krivacka, James Charles, Nashville, For Appellant Metropolitan Government of Nashville and Davidson County Paul G. Summers, Attorney General and Reporter, Jimmy G. Creecy, Chief Special Counsel, Nashville, For Appellee, Tennessee State Board of Equalization T. Arthur Scott, Jr., Suzanne S. Cook, Kingsport, for Appellee, Appalachian power Company and Kingsport Power Company James W. McBride, Washington, D.C., Stephen D. Goodwin, Memphis, Brigid M. Carpenter, Nashville for Appellee, Coalition of Public Utilities Judge: CRAWFORD First Paragraph: On remand from the Supreme Court, this Court was instructed to consider the factual issue of whether the action of the Board of Equalization reducing the appraised value of public utility tangible personal property for tax year 1998 caused the ratio of such property's appraised value to its market value to be equal to the ratio for tangible personal property within each local jurisdiction that is appraised and assessed by local taxing authorities. We find that there is substantial and material evidence to support the Board's action in reducing the appraised value for the tax year 1998 and that it resulted in an equal ratio for locally assessed personal property. http://www.tba.org/tba_files/TCA/allassessments.wpd REVEREND T. ALLEN CLOUGH v. STATE OF TENNESSEE ATTORNEY GENERAL Court:TCA Attorneys: Reverend T. Allen Clough, Knoxville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Mary M. Bers, Senior Counsel, for the appellee, State of Tennessee Attorney General. Judge: SUSANO First Paragraph: The plaintiff filed a complaint in this action against the assistant district attorney general who had prosecuted him for stalking under the provisions of T.C.A. S 39-17-315 (1997). The trial court granted the defendant's motion to dismiss. We affirm. http://www.tba.org/tba_files/TCA/cloughta.wpd HEIRS OF NEIL G. ELLIS v. THE ESTATE OF VIRGIE MAE ELLIS Court:TCA Attorneys: Laurie Y. Young, Murfreesboro, Tennessee, for the appellants, Heirs of Neil G. Ellis. William W. Burton, Murfreesboro, Tennessee, for the appellee, Estate of Virgie Mae Ellis. Judge: LILLIARD First Paragraph: This is a will case. The wife, as the husband's conservator, sold the couple's real and personal property and deposited the proceeds into a joint checking account and into investments in the wife's name only. The husband died, and the wife died less than one hundred twenty hours later. Both of their wills devised all of their property to each other. The wife's will was admitted to probate. The husband's heirs moved the trial court to apply provisions of Tennessee's Uniform Simultaneous Death Act to equally divide the proceeds of the couple's jointly held property between the husband and wife's separate estates. The trial court denied the motion, holding that the Act did not apply and that sole ownership of the proceeds from couple's real property, which was held as tenants by the entirety, vested in the wife upon the husband's death. The husband's heirs appealed. We affirm, finding that sole ownership of the proceeds from the couple's jointly held real and personal property vested in the wife upon the husband's death. We also find that the husband and wife's devises of any individually owned personal property would both lapse and the property, or its proceeds, would remain in each spouse's separate estate. We remand the case to the trial court to determine whether any of the personal property was owned individually, whether any such property was sold, and if so, the value of the property. http://www.tba.org/tba_files/TCA/ellisheirs.wpd BOBBY J. EVERETT, et al. v. B. GORDON McCALL, M.D. Court:TCA Attorneys: Donna Keene Holt and David E. Waite, Knoxville, Tennessee and Rebecca C. McCoy, Sevierville, Tennessee, for the appellant, Bobby J. Everett, Individually and as Executor of the Estate of Edith Mae Everett. Wynne C. Hall, Knoxville, Tennessee, for the appellee, B. Gordon McCall, M. D. Judge: INMAN First Paragraph: The complaint in this medical malpractice case was dismissed on motion for summary judgment. The plaintiff filed a Rule 56.07 Response to the motion, requesting additional time within which to take the defendant's deposition for the purpose, inter alia, of ascertaining his thought processes during the 27-day period he treated the plaintiff for a gastroenterological condition which ended in her death. The request for additional time was denied, and the motion for summary judgment was granted because the affidavit of the defendant was not countervailed. The judgment is reversed. http://www.tba.org/tba_files/TCA/everettbj.wpd GLENNA C. FINK v. RICHARD H. FINK Court:TCA Attorneys: Thomas F. Bloom, Nashville, Tennessee, for the Appellant, Richard H. Fink. D. Vance Martin, Knoxville, Tennessee, for the Appellee, Glenna C. Fink. Judge: SWINEY First Paragraph: Glenna C. Fink ("Wife") filed a Complaint for Divorce against Richard H. Fink ("Husband") on the grounds of inappropriate marital conduct and irreconcilable differences. Husband filed an Answer and Counter-Complaint seeking a divorce on the same grounds. The Trial Court awarded the divorce to Wife and dismissed Husband's Counter-Complaint. The parties agreed to the sale of the marital residence, and the Trial Court awarded Wife $14,000.00 in attorney's fees out of the sale of the proceeds, with the remaining proceeds from the sale to be split 55% to Wife and 45% to Husband. Wife was awarded the full interest in her retirement/disability benefits. The Trial Court also determined that certain sums which Husband claimed were marital property were actually a gift to the parties' minor daughter and the daughter was, therefore, entitled to keep these funds. The Trial Court further awarded Wife $450.00 per month as alimony in futuro. Husband filed a Motion pursuant to Rules 59.02 and 59.04 of the Tenn. R. Civ. P. challenging these determinations. The Trial Court denied Husband's motion, and Husband appeals. We affirm, award Wife attorney's fees incident to this appeal, and remand this matter to the Trial Court for a determination of the amount of reasonable attorney's fees incurred by Wife on appeal. http://www.tba.org/tba_files/TCA/finkgc.wpd WILLIAM EMORY FOX v. MARCELLA ANNE AMES FOX Court:TCA Attorneys: Robert F. Hazard, Tullahoma, Tennessee, for the appellee, William Emory Fox. Barbara G. Hardin, Decherd, Tennessee, for the appellant, Marcella Anne Ames Fox. Judge: COTTRELL First Paragraph: In this divorce case ending an eighteen year marriage, the trial court awarded as separate property only the items owned by each party at the time of the marriage. The court awarded the marital home to both parties as tenants in common, allowing Wife to retain possession while the children were minors but requiring her to make the mortgage payments. Upon the sale of the property, the parties were to divide the proceeds of the sale, after costs and encumbrances were paid, with Wife receiving 60% and Husband receiving 40%. Wife appeals, contending that the court was required to classify the gifts during the marriage as separate property, and that the court's distribution of the marital property was not equitable. She also argues that the trial court violated federal law by awarding Husband a percentage of the real property and by ordering her to pay the mortgage, claiming the source of the equity in the property and of her income is her disability benefits, and those funds are exempt from "attachment, levy, or seizure." The evidence does not preponderate against the court's classification of property, and we find the division to be equitable. We find no violation of federal law in the award of the real property or in the requirement that Wife pay the mortgage so long as she occupies the premises. http://www.tba.org/tba_files/TCA/foxw.wpd STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. DOROTHY HOPSON Court:TCA Attorneys: Edward R. Sempkowski, Morristown, Tennessee, for the Appellant, Dorothy Hopson Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee Department of Children's Services Judge: GODDARD First Paragraph: Dorothy Hopson appeals a determination that her parental rights should be terminated as to her two daughters upon the grounds that the Trial Court was in error in allowing into evidence statements made by the children to third parties; in finding that the evidence was clear and convincing that she had committed child abuse as to her children; and in finding that termination of her parental rights was in the best interest of the children. We affirm. http://www.tba.org/tba_files/TCA/hopson.wpd P.E.K. v. J.M. AND C.Y.M. Court:TCA Attorneys: Ronald T. Landers, Columbia, Tennessee, for the appellant, C.Y.M. Paul A. Bates and William M. Harris, Lawrenceburg, Tennessee, for the appellee, P.E.K. Judge: CANTRELL First Paragraph: This case involves an interstate battle between never-married parties over the custody of a six year old child. This court granted an interlocutory appeal so that we could determine whether the Wayne County Chancery Court has jurisdiction over the paternity and custody of this child and whether the temporary emergency custody order is valid. We hold that the Wayne County court has subject matter jurisdiction over paternity and custody matters, but that the temporary emergency custody order was invalid because the child was not present in this state and the facts alleged were insufficient to obtain such an order. We remand for a hearing on paternity and custody. http://www.tba.org/tba_files/TCA/p_e.k.wpd RICK RICHARDS v. TRACI RENAE DOMALIK Court:TCA Attorneys: Phillip L. Boyd, Rogersville, Tennessee, for the appellant, Rick Richards. Suzanne S. Cook, Kingsport, Tennessee, for the appellee, Traci Renae Domalik. Judge: SUSANO First Paragraph: This is a tort action arising out of an accident involving a bicycle and an automobile. The plaintiff was riding his bicycle on the shoulder of the highway facing traffic. The driver of the automobile was to the plaintiff's left and was preparing to turn right out of the premises of a restaurant onto the highway. As the plaintiff moved to his left and started to pass in front of the automobile, the vehicles collided and the plaintiff was injured. The plaintiff brought this action seeking to recover compensatory damages. The jury returned a verdict for the defendant, finding the plaintiff 75% at fault. The plaintiff appeals, asserting, inter alia, that the jury charge was erroneous and that this error warrants a new trial. We vacate the judgment below and remand for a new trial. http://www.tba.org/tba_files/TCA/richardsr.wpd STATE OF TENNESSEE, ex rel. CANDACE F. WEST v. GLEN D. FLOYD, JR. Court:TCA Attorneys: Paul G. Summers, Attorney General & Reporter; Stuart Wilson-Patton, Assistant Attorney General, for the appellant, State of Tennessee, ex rel., Candace F. West; and Douglas Thompson Bates, III, Centerville, Tennessee, for the appellant, Candace F. West. Donald W. Schwendimann, Hohenwald, Tennessee, for the appellee, Glen D. Floyd, Jr. Judge: CAIN First Paragraph: In this case, the appellant, having signed a Marital Dissolution Agreement later incorporated into a divorce decree, seeks by Rule 60 motion to have a portion of the decree dealing with the paternity of a child conceived while the parties were married, and born after the parties were divorced, voided as against public policy. Blood tests have conclusively excluded the man who the appellant had an extramarital affair with, as the father of the child. The trial court dismissed the appellant's petition pursuant to Tenn. R. Civ. P. Rule 41 motion. On appeal, we reverse the Chancellor, remand this case for further proceedings in conformity with this opinion, and order the appellee to undergo blood tests to determine the parentage of the child. http://www.tba.org/tba_files/TCA/westcandace.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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