April 23, 2001 Volume 7 — Number 074 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 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 09 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 SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0423.wpd AMY LYNN BLANKENSHIP v. CARL SCOTT BLANKENSHIP Court:TCA Attorneys: Virginia Lee Story, Franklin, For Appellant, Carl Scott Blankenship Rebecca E. Byrd, Franklin, For Appellee, Amy Lynn Blankenship Judge: CRAWFORD First Paragraph: Husband appeals a final decree of divorce terminating a marriage of ten years, presenting issues regarding the trial court's finding of contempt, confiscation of his guns, alimony, division of marital assets and debts, and attorneys fees. We vacate in part, modify in part, and affirm as modified. http://www.tba.org/tba_files/TCA/blankenshipamy.wpd LYDIA JANE BREWSTER v. DAN NATHANIEL BREWSTER Court:TCA Attorneys: Carrie W. Kersh, Clarksville, For Appellant, Dan Nathaniel Brewster Deborah S. Evans, Clarksville, For Appellee, Lydia Jane Brewster Judge: CRAWFORD First Paragraph: This appeal involves the trial court's denial of the father's visitation after entry of a final decree of divorce granting the parents joint custody of the two minor children. The father filed a motion to alter and amend the final decree of divorce and for visitation. The mother opposed visitation by the father because of alleged sexual abuse of their daughter. The trial court denied father visitation. The father has appealed. We amend the final decree, affirm the denial of visitation, and remand the case for further proceedings. http://www.tba.org/tba_files/TCA/brewsterlyd.wpd DOUGLAS ROBERT DuBOIS v. ROSEMARY ANN DuBOIS Court:TCA Attorneys: Jeffrey L. Levy, Nashville, Tennessee, for the appellant, Douglas Robert DuBois. Robert Todd Jackson, Nashville, Tennessee, for the appellee, Rosemary Ann DuBois. Judge: CAIN First Paragraph: Plaintiff/Appellant, Douglas Robert DuBois, and Defendant/Appellee, Rosemary Ann DuBois, are parents of two minor children, Caitlin Michel DuBois and Thomas Jackson DuBois. The Decree of Divorce was entered on November 5, 1998, following two days of trial that occurred on the 8th and 9th of October 1998. Both parties filed T.R.C.P. Rule 59 motions to alter or amend the final decree which, in effect, sought a redetermination by the trial judge of almost everything in issue. All of these motions were heard on May 12, 1999, after which, on June 15, 1999, the trial judge entered an order determinative of these Rule 59 motions. From this order, Plaintiff, Douglas Robert DuBois, appeals. We affirm the trial judge. http://www.tba.org/tba_files/TCA/duboisdouglas.wpd JOE P. DYER v. TENNESSEE BOARD OF PAROLES Court:TCA Attorneys: Joe P. Dyer, Pikeville, Tennessee, Pro Se. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General, and Dawn Jordan, Assistant Attorney General, for the appellee, Tennessee Board of Probation and Parole. Judge: CAIN First Paragraph: Joe P. Dyer, a prison inmate, filed a petition in the Chancery Court of Davidson County for a writ of common law certiorari to review denial of parole. The trial court granted the respondent's Motion for Summary Judgment and we affirm the action of the trial court. http://www.tba.org/tba_files/TCA/dyerjoe.wpd MARIO HAYWOOD v. TENNESSEE DEPARTMENT OF CORRECTIONS, et al. Court:TCA Attorneys: Mario Haywood, pro se. Paul G. Summers, Attorney General and Reporter; and Abigail Turner, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Corrections. Tom Anderson, Jackson, Tennessee, for the appellees, Alan Bargery, David Harville, and Glenn Turner. Judge: LILLARD First Paragraph: The plaintiff prison inmate filed pro se petition for declaratory judgment and/or a writ of certiorari seeking review of prison disciplinary board's finding of guilt and the punishment relating to a prison incident. The trial court dismissed the petition for lack of jurisdiction, finding that declaratory judgment was not available for a review of prison disciplinary proceedings and that the petition for a writ of certiorari was untimely filed. The trial court also denied the plaintiff's subsequent petition to rehear. The plaintiff appeals from the dismissal of his original petition and the denial of his petition to rehear. We affirm. http://www.tba.org/tba_files/TCA/haywoodm.wpd WILLIAM HENDERSON v. DONAL CAMPBELL Court:TCA Attorneys: William Lee Henderson, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General & Reporter; Abigail Turner, Assistant Attorney General, for the appellee, Donal Campbell. Judge: CAIN First Paragraph: This is an appeal by a prison inmate from a dismissal of his suit for declaratory judgment in the Chancery Court of Davidson County. The trial court dismissed the claim pursuant to Tennessee Code Annotated section 41-21-804 for failure to state a claim on which relief could be granted. We affirm. http://www.tba.org/tba_files/TCA/hendersonwm.wpd GERALD W. HOPPER v. PATRICIA ANN HOPPER Court:TCA Attorneys: Joanie L. Abernathy, Franklin, For Appellant, Patricia Ann Hopper Michael S. Bligh, Nashville, For Appellee, Gerald W. Hopper Judge: CRAWFORD First Paragraph: Wife appeals final decree of divorce as it pertains to a division of marital property and alimony in futuro award. The trial court charged Wife with entire amount of advance from house- sale proceeds and failed to award Wife one-half of Husband's retirement. Wife appeals. We modify the division of marital property and affirm as modified. http://www.tba.org/tba_files/TCA/hopperger.wpd McDONNELL DYER, P.L.C. v. SELECT-O-HITS, INC. Court:TCA Attorneys: Scott F. May, Memphis, TN; Robert Malouf, Jackson, MS, for Appellant Glen Reid, Jr., Mark Vorder-Bruegge, Jr., Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This is a suit for the recovery of attorney's fees. The Appellee brought a complaint against the Appellant in the Chancery Court of Shelby County, seeking to recover $120,000.00 in attorney's fees. The Appellant filed an answer and counterclaim, seeking to recover $10,000.00 it paid to the Appellee and $10,953.05 it paid in legal fees to another law firm. The Chancery Court of Shelby County found that the $120,000.00 fee was excessive and entered a judgment in favor of the Appellee in the amount of $89,685.00. The trial court dismissed the Appellant's counterclaim. The Appellant appeals from the decision of the Chancery Court of Shelby County granting a reduced amount of attorney's fees to the Appellee and dismissing the Appellant's counterclaim. For the reasons stated herein, we affirm the trial court's decision as modified. http://www.tba.org/tba_files/TCA/mcdonnelldyer.wpd ROLAND SCHNIDER v. CARLISLE CORPORATION Court:TCA Attorneys: David M. Rudolph, Memphis, For Appellant, Roland Schnider Bruce S. Kramer, Scott A. Kramer, Memphis, For Appellee, Carlisle Corporation Judge: CRAWFORD First Paragraph: This is a breach of contract case in which Plaintiff, a chef, claims he entered into an employment contract of a definite term. Plaintiff and Defendant engaged in negotiations aimed at having Plaintiff open and manage a restaurant. Defendant produced a final draft of the agreement which included salary, bonuses, and an ownership interest in the restaurant. Neither side executed the written agreement, but Plaintiff went to work for Defendant and both parties partially performed the terms of the writing. Defendant terminated Plaintiff's employment several months later, and Plaintiff filed this action for breach of contract. The trial court, sitting without a jury, found that no contract existed between the parties and Plaintiff appeals. We vacate and remand. http://www.tba.org/tba_files/TCA/schniderrol.wpd STATE OF TENNESSEE v. DOUG MYERS Court:TCCA Attorneys: John B. Nisbett, III, Cookeville, Tennessee, and Dan Bryant, Public Defender, McMinnville, Tennessee, on appeal, and Bernard K. Smith, at trial, Attorneys for Appellant, Doug Myers. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, David H. Findley, Assistant Attorney General, Dale Potter, District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: Doug Myers was convicted by a Warren County Circuit Court jury of aggravated assault. The trial court sentenced Myers, as a Range I standard offender, to six years incarceration in the Department of Correction. On appeal, Myers raises the following issues for our review: (1) whether the evidence presented at trial was sufficient to support his aggravated assault conviction; (2) whether the trial court erred by allowing testimony concerning Myers' subsequent criminal conduct; and (3) whether the trial court erred in sentencing Myers to six years incarceration. After review, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/myersdoug.wpd STATE OF TENNESSEE v. CLEMENT DALE POTTER Court:TCCA Attorneys: William T. Ramsey and W. David Bridgers, Nashville, Tennessee, for the appellant, Clement Dale Potter. Hal Hardin, District Attorney General Pro Tem, and Floyd N. Price, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: In this Rule 9 interlocutory appeal, the defendant, an incumbent district attorney general, appeals the trial court's denial of his motion to dismiss a presentment returned against him by the grand jury. He asserts that the General Assembly, in Tennessee Code Annotated section 8-6-112, vested the sole or exclusive authority to investigate and prosecute an incumbent district attorney general in the Attorney General and Reporter's office. After review, we disagree with the defendant and affirm the trial court's denial of the defendant's motion. http://www.tba.org/tba_files/TCCA/pottercd.wpd DARRYL J. ROSS v. STATE OF TENNESSEE Court:TCCA Attorneys: Joseph Ozment, Memphis, Tennessee, for the appellant, Darryl J. Ross. Paul G. Summers, District Attorney General; Laura E. McMullen, Assistant District Attorney General; William L. Gibbons, District Attorney General; and Michael Leavitt, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant was convicted in two jury trials of six counts of aggravated robbery and one count of attempted aggravated robbery. He received an effective sentence of sixty years for these crimes. The Defendant subsequently pled guilty to three additional counts of aggravated robbery, one additional count of attempted aggravated robbery, and one count of theft. After an unsuccessful appeal of his second trial, the Defendant filed for post-conviction relief, alleging ineffective assistance of counsel. After a hearing the post-conviction court denied relief, which ruling the Defendant now appeals. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/rossdj.wpd STATE OF TENNESSEE v. WILLIAM GLENN WILEY Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, (on appeal); Lionel R. Barrett, Jr., Nashville, Tennessee, (at trial) for the Appellant, William Glenn Wiley. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Peter M. Coughlan, Assistant Attorney General, and Kimberly Haas, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: William Glenn Wiley was convicted by a Davidson County jury of felony murder and especially aggravated robbery. Wiley was sentenced to life without the possibility of parole for the murder conviction and sentenced to twenty-five years for the robbery conviction, with the sentences to run concurrently. On appeal, Wiley raises the following issues for our review: (1) whether the evidence at trial was sufficient to support the conviction for felony murder; (2) whether the evidence was sufficient to support the conviction for especially aggravated robbery; (3) whether the evidence was sufficient to support the jury's reliance on two aggravating factors when imposing a sentence of life without the possibility of parole; and (4) whether the trial court erred by not instructing the jury on the theory of self-defense. After review, we find no error and affirm the judgment. http://www.tba.org/tba_files/TCCA/wileywg.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! 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