April 30, 2001 Volume 7 — Number 078 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 17 New Opinion(s) from the Tennessee Court of Appeals 06 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   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 CENTRAL STATE BANK v. LEO DICKERSON AND LOYD BATEMAN Court:TCA Attorneys: David A. Riddick, Jackson, Tennessee, for the appellant, Central State Bank. John Van Den Bosch, Jr., Jackson, Tennessee, for the appellees Leo Dickerson and Loyd Bateman. Judge: LILLARD First Paragraph: This case involves a tax sale of real property. The bank loaned money secured by two separate parcels of land. The bank failed to record its interest in the property in the tax assessor's office as required by the pre-1996 version of Tennessee Code Annotated S 67-5-2502. The landowners failed to pay the property taxes. A tax sale was then held and the parcels of land were purchased separately by the defendants. Notice of the impending sale was placed in newspaper, but no other notice was given to the bank. The bank asserted that it learned of the tax sale after the redemption period had expired, when it attempted to institute foreclosure proceedings on the property. The bank filed suit seeking to set aside the sale, alleging inadequate notice. The trial court found that the sale had been properly conducted and that the defendants' deeds were valid. The bank appealed. We reverse and remand, finding that due process required that the bank be given actual notice prior to the tax sale. http://www.tba.org/tba_files/TCA/centralstatebank.wpd STEPHEN COMELLA v. CITY OF MEMPHIS Court:TCA Attorneys: David M. Sullivan, Memphis, Tennessee, for Plaintiff/Appellant Stephen Comella. Robert L.J. Spence, Jr. and Chapman Sellers Morrow, Memphis, Tennessee, for Defendant/Appellee, City of Memphis. Judge: LILLARD First Paragraph: This is a personal injury case involving the on-the-job injury of a police officer working for the City of Memphis. The city admitted liability. After a bench trial on the issue of damages, the trial court awarded the plaintiff a judgment of $25,000. The plaintiff appeals, arguing that the trial court erred by treating this as a worker's compensation case rather than a negligence case. Plaintiff also argues that the trial court erred by not granting his request for discretionary costs to pay for expert witness fees. We affirm, finding that the evidence supports the trial court's award and that there was no abuse of discretion in declining to order the city to pay the plaintiff's expert witness fees. http://www.tba.org/tba_files/TCA/comellas.wpd ROBERT TERRY DAVIS, et al. v. WILSON COUNTY, TENNESSEE Court:TCA Attorneys: Michael R. Jennings, Lebanon, Tennessee, for the appellant, Wilson County, Tennessee. Neal Agee, Jr., Lebanon, Tennessee, for the appellees, Robert Terry Davis and Donald Hamblen. Judge: CANTRELL First Paragraph: Wilson County sought to modify its health insurance plan providing coverage for "retired" employees. Two employees, fitting the definition of retired employees but not yet retired, challenged the modification on the ground that their rights in the prior plan had vested. The Chancery Court of Wilson County held that the employees had a vested right to continue under the prior plan. We hold that health insurance benefits are welfare benefits that do not vest absent a contractual provision that they cannot be changed. We therefore reverse the lower court's decision and dismiss the complaint. http://www.tba.org/tba_files/TCA/davisrt.wpd PATRICK JOSEPH EDGIN v. VALENTINA PAULOVNA EDGIN Court:TCA Attorneys: Rick C. Osborn, Columbia, Tennessee, for the appellant, Patrick Joseph Edgin. Barbara J. Walker, Columbia, Tennessee, for the appellee Valentina Paulovna Edgin. Judge: INMAN First Paragraph: Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed http://www.tba.org/tba_files/TCA/edgin.wpd LINDA KAY LOVELL GAGE v. RILEY GAGE, JR. Court:TCA Attorneys: Harold R. Gunn, Humboldt, Tennessee, for the appellant, Riley Gage, Jr. Jere B. Albright, Humboldt, Tennessee, for the appellee, Linda Kay Lovell Gage. Judge: LILLARD First Paragraph: This is a divorce case. The wife filed for divorce approximately fourteen months after she moved out of the marital home. The husband filed an answer and counter-complaint for divorce. The trial court granted the divorce to the wife and awarded her half of the value of the husband's pension and alimony in futuro. Husband appeals. We affirm. http://www.tba.org/tba_files/TCA/gagelk1st.wpd HEALTH COST CONTROLS, INC. v. RONALD GIFFORD Court:TCA Attorneys: H. Max Speight, Dresden, Tennessee, for the appellant Ronald Gifford. Thomas H. Lawrence and John M. Russell, Memphis, Tennessee, for the appellee Health Cost Controls, Inc. Judge: LILLARD First Paragraph: This is an insurance case. The defendant sustained injuries in an automobile accident while riding as a passenger in a car owned by his mother. The defendant's insurance policy did not cover expenses for injuries "when a person, other than the person for whom the claim is made, is considered responsible for the sickness or injury." Unaware of any third party responsible for the accident, the insurance company paid part of the defendant's medical bills. The defendant subsequently recovered from his mother's automobile insurance carrier. When the defendant's insurance company learned of the subsequent recovery, it filed suit seeking repayment of the amount it paid for the defendant's medical bills. The trial court granted summary judgment to the insurance company, finding that it was entitled to recovery based on the policy. The defendant appeals. We affirm, finding inter alia that a person need not be at fault in the automobile accident to be "considered responsible" under the policy. http://www.tba.org/tba_files/TCA/healthcostcontrols.wpd JOHN W. JOHNSON v. CLAYBURN PEEPLES, et al. Court:TCA Attorneys: John W. Johnson, Pro Se Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Ellen H. Pollack, Assistant Attorney General, Nashville, Tennessee, for the appellee Clayburn Peeples Elizabeth E. Chance and Clinton J. Simpson, Memphis, Tennessee, for the appellee Gibson County Sheriff. Judge: LILLARD First Paragraph: Plaintiff filed a civil rights and conspiracy complaint against Gibson County District Attorney and Gibson County Sheriff, pursuant to 42 U.S.C. S 1981, 42 U.S.C. S 1983, 42 U.S.C. S 1985(3), and 42 U.S.C. S 1986. The trial court dismissed the complaint based on the statute of limitations, failure to establish facts sufficient to state a claim, and qualified immunity. We affirm. http://www.tba.org/tba_files/TCA/johnsonjw.wpd CASSANDRA D. MYLES v. PETER M. MYLES Court:TCA Attorneys: John S. Richbourg, Memphis, Tennessee, for the appellant, Peter M. Myles. Terry Allen Scott II, Memphis, Tennessee, for the appellee, Cassandra D. Myles. Judge: LILLARD First Paragraph: This is a divorce case. The husband failed to appear for the rescheduled hearing on the wife's motion for default judgment. The trial court granted default judgment and, at a subsequent final divorce hearing from which the husband was also absent, granted the wife a divorce and awarded her alimony in solido. The husband then filed motions to set aside the default judgment and for a new trial, asserting that he had not received notice of either the rescheduled hearing on default judgment or the final divorce hearing. The trial court denied both motions. The husband appeals. We affirm, finding that the husband's neglect was not excusable. http://www.tba.org/tba_files/TCA/mylescd.wpd NATIONAL AUTO/TRUCK STOPS, INC. v. WILLIAMSON COUNTY, TENNESSEE Court:TCA Attorneys: George A. Dean, Nashville, Tennessee, for the appellant, National Auto/Truck Stops, Inc., d/b/a TravelCenters of America. Kristi D. Earwood, Franklin, Tennessee, for the appellee, Williamson County, Tennessee. Judge: INMAN First Paragraph: The intent of an auto/truck stop to revamp business signs located on its property was thwarted by the county's interpretation of its zoning requirements. The plaintiff claimed the benefit and protection of the Grandfather Statute, Tenn. Code Ann. S 13-7-208; the defendant county prevailed in its argument that the Grandfather Statute afforded no protection to signs, but only to business. We reverse. http://www.tba.org/tba_files/TCA/nationalauto.wpd NINA M. NOEL v. HAROLD DON NOEL Court:TCA Attorneys: Darryl W. Humphrey, Memphis, Tennessee, for the appellant, Harold Don Noel. Rita L. Stotts, Memphis, Tennessee, for the appellee, Nina M. Noel. Judge: LILLARD First Paragraph: This is a divorce case. The trial court granted the husband the divorce but ordered him to pay, inter alia, $8000 in child support arrearage, half of the wages owed to the former employees of the wife's new business, and court costs. The husband appealed. We reverse the trial court's holding that the husband should pay half of the wages of the wife's new business, since this is the wife's separate debt incurred after the parties separated, and affirm the remainder of the trial court's order. http://www.tba.org/tba_files/TCA/noelnm.wpd OLYMPIA CHILD DEVELOPMENT CENTER, INC., et al. v. CITY OF MARYVILLE, TENNESSEE Court:TCA Attorneys: Kevin W. Shepherd, Maryville, Tennessee, for the appellant, Olympia Child Development Center, Inc. Nathan D. Rowell, Knoxville, Tennessee, for the appellee, City of Maryville, Tennessee. Judge: SUSANO First Paragraph: The suit filed in this tort action originally sought a judgment against the defendant, City of Maryville ("the City"), for damages allegedly sustained by four plaintiffs when a van owned by the plaintiff Olympia Child Development Center, Inc. ("Olympia"), and driven by the plaintiff Lisa K. Murphy was struck by a vehicle driven by Rodney Parton, an off-duty police officer employed by the City. The trial court granted the City summary judgment as to the claims of the remaining plaintiffs, Olympia and Murphy, finding that their claims are barred by the doctrines of collateral estoppel and modified comparative fault. Only Olympia appeals. We affirm the grant of summary judgment, but base our affirmance on a ground other than the one utilized by the trial court. http://www.tba.org/tba_files/TCA/olympia.wpd ORION PACIFIC, INC. v. EXCHANGE PLASTICS COMPANY Court:TCA Attorneys: William W. Burton, Murfreesboro, Tennessee, for the appellant, Exchange Plastics Company. Donald M. Bulloch, Jr., Murfreesboro, Tennessee, for the appellee, Orion Pacific, Inc. Judge: CANTRELL First Paragraph: The defendant Ohio company purchased truckloads of plastic from the Tennessee division of a Texas company. When the Ohio company refused to pay for all the plastic, the Texas company filed suit for the balance in a Tennessee court. The defendant argued that it did not have sufficient contact with Tennessee to subject it to personal jurisdiction in this state's courts. The trial court disagreed, and following a hearing, rendered a judgment for the plaintiff in the amount of $11,288. We affirm. http://www.tba.org/tba_files/TCA/orionpacific.wpd MARILYN E. REEL v. GEORGE C. REEL, JR. Court:TCA Attorneys: Peter D. Heil, Nashville, Tennessee, for appellant, Marilyn E. Reel. Dana Dye, Centerville, Tennessee, for the appellee, George C. Reel, Jr. Judge: COTTRELL First Paragraph: This is a divorce case ending a twenty-seven year marriage. The trial court made an essentially equal division of property, awarding Wife the marital residence which remained unfinished even though the parties had occupied it since 1985. We modify the property division to provide Wife additional funds with which to complete and repair the residence. http://www.tba.org/tba_files/TCA/reelm.wpd STEVEN H. REZBA v. BRIAN W. RANDOLPH Court:TCA Attorneys: Judy A. Oxford, Franklin, Tennessee, for the appellant, Steven H. Rezba. James D. Kay, Jr. and John B. Enkema, Nashville, Tennessee, and W. Ray Culp, III, Lobelville, Tennessee, for the appellee, Brian W. Randolph. Judge: CANTRELL First Paragraph: Dr. Steven H. Rezba purchased the dental practice of Dr. Brian W. Randolph in April of 1996, paying some cash down and giving a promissory note for the balance. Dr. Rezba filed this action to rescind the contract claiming that Dr. Randolph had inflated his revenues by fraudulent practices, and Dr. Randolph counterclaimed for damages for breach of the contract. The Chancery Court of Williamson County denied Dr. Rezba's motion to amend to include a claim for damages and granted summary judgment to Dr. Randolph on all issues. We affirm. http://www.tba.org/tba_files/TCA/rezbash.wpd MICHAEL A. SMITH, et al. v. STEVE C. FUTRIS, et al. v. RICHARD FELTUS Court:TCA Attorneys: E. William James, Memphis, Tennessee, for the appellants, Steve C. Futris, Zoe Futris and Steve C. Futris D.D.S., P.A. Harold G. Walter, Memphis, Tennessee, for the appellees, Michael A. Smith and Rene A. Smith. Tim Edwards, Memphis, Tennessee, for the appellee, Richard Feltus. Judge: LILLARD First Paragraph: This is a contract dispute. The plaintiffs entered into a contract to buy the defendants' office condominium and equipment. The contract provided that the defendants would execute a note for the balance of the purchase price, payable in monthly installments over a twenty year term. The contract had no express provision on the right of prepayment. The promissory note expressly granted the plaintiffs the right of prepayment. Five years later, the plaintiffs attempted to prepay the note. The defendants refused the plaintiffs' offer, saying that the plaintiffs had no right of prepayment. The plaintiffs then ceased making any payments on the note. The plaintiffs later filed a lawsuit seeking, inter alia, a declaratory judgment that they had the right of prepayment. The defendants filed a counterclaim seeking reformation of the note and the deed of trust. The defendants also filed a third party claim for damages against the plaintiffs' attorney, who had prepared the closing documents, including the note. The defendants alleged that the attorney had breached his duty of due care to them by putting a right of prepayment in the note. The trial court found that the plaintiffs had the right to prepay and that the plaintiffs had made an effective tender of payment to the defendants. The trial court dismissed the defendants' third party claim against the attorney, finding that he had not represented the defendants and owed no duty of care to them. The defendants appeal. We affirm in part and reverse in part, finding, inter alia, that the promissory note gave the plaintiffs the right of prepayment, and also finding that the plaintiffs have not made an effective tender of payment. http://www.tba.org/tba_files/TCA/smithma.wpd LANNIE L. SUMMERS, et al. v. THE TOWN OF WALNUT GROVE, TENNESSEE, et al. Court:TCA Attorneys: James R. Tomkins, Nashville, Tennessee, for appellant, The Town of Walnut Grove, Tennessee. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General and Ann Louise Vix, Senior Counsel, for the State of Tennessee. John R. Bradley, Portland, Tennessee, for the appellee, Lannie L. Summers and Fredrick H. Mueller. Judge: INMAN First Paragraph: The Town of Walnut Grove was created pursuant to Tennessee Code Annotated S 6-58-108(f)(3). Its legality was challenged in an action filed by a neighboring town, and the statutory scheme was upheld. This judgment was not appealed. About one year later this statute was declared unconstitutional in Huntsville v. Duncan 15 S.W.3d 468 (Tenn. App. 1999). In the case at Bar, the trial judge applied stare decisis and dissolved the Charter of Walnut Grove. We affirm. http://www.tba.org/tba_files/TCA/summers.wpd LISA JOHNSON VENABLE v. BOYD WALTER VENABLE III Court:TCA Attorneys: David W. Blankenship, Kingsport Tennessee, for the appellant, Boyd Walter Venable, III. Jerry G. Cunningham and Melanie E. Davis, Maryville, Tennessee, for the appellee, Lisa Johnson Venable. Judge: INMAN First Paragraph: This divorce action was filed November 12, 1998. All issues involving money were contested: marital assets, debts, child support, attorney fees, costs. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Modified and Affirmed http://www.tba.org/tba_files/TCA/venable.wpd JEFFREY LYNN ANDERSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Danny H. Goodman, Jr., Dyersburg, Tennessee, for the appellant, Jeffrey Lynn Anderson. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner originally pled guilty to felony reckless endangerment, evading arrest in a motor vehicle, and two counts of theft over $1,000. The petitioner sought post-conviction relief, which was denied by the post-conviction court. In this appeal, the petitioner contends his trial counsel provided ineffective assistance of counsel. After a thorough review of the record, we conclude that the post- conviction court correctly denied post-conviction relief. http://www.tba.org/tba_files/TCCA/andersonjl.wpd STATE OF TENNESSEE v. KENNETH LAMONT ANTHONY Court:TCCA Attorneys: Richard McGee, Nashville, Tennessee, for the Appellant, Kenneth Anthony. Paul G. Summers, Attorney General and Reporter, Glen C. Watson, Assistant Attorney General, Victor S. Johnson, III, District Attorney General, and Pamela S. Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Kenneth Anthony, was convicted by a Davidson County jury of first degree pre- meditated murder and attempted second degree murder. For these offenses, the Defendant received a sentence of imprisonment for life and a concurrent sentence of ten years in the Tennessee Department of Correction, respectively. On appeal, the Defendant challenges the sufficiency of the evidence with regard to the first degree premeditated murder conviction. Finding sufficient evidence in the record to support the Defendant's convictions, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/anthonyk.wpd STATE OF TENNESSEE v. LILLIE FRAN FERGUSON Court:TCCA Attorneys: Lloyd Tatum, Henderson, Tennessee, for the appellant, Lillie Fran Ferguson. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; Jerry Woodall, District Attorney General; and James Thompson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Lillie Fran Ferguson, pled guilty to possession with intent to sell or deliver less than .5 grams of a Schedule II controlled substance and to failure to obey a stop sign. As part of her plea agreement, she expressly reserved with the consent of the trial court and the State the right to appeal certain certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) relating to the frisk of her person and the subsequent seizure of contraband. In this appeal, the Defendant asserts that the trial court erred by refusing to suppress the evidence obtained against her as the result of an unlawful frisk. She claims that the officer did not have reasonable suspicion that she was armed and dangerous, thereby warranting a Terry pat-down, and that the incriminating nature of the crack pipe felt by the officer during the pat-down was not immediately apparent within the meaning of the "plain feel" doctrine. However, because the Defendant failed to properly certify her issues for review, we are unable to reach the merits of her case. Accordingly, this appeal is dismissed. http://www.tba.org/tba_files/TCCA/fergusonlf.wpd STATE OF TENNESSEE v. JASON FRANK JENKINS Court:TCCA Attorneys: Stacy D. Nordquist (at trial), Maryville, Tennessee; Julie A. Rice (on appeal), for the Appellant, Jason Jenkins. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; Michael L. Flynn, District Attorney General; John Bobo, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Jason Frank Jenkins appeals from the Blount County Circuit Court's revocation of his probationary sentence. Jenkins concedes that he violated the terms of probation, but he argues that the lower court abused its discretion in ordering him to serve the balance of his sentence in the Department of Correction. Because the trial court did not abuse its discretion, we affirm. http://www.tba.org/tba_files/TCCA/jenkinsjf.wpd STATE OF TENNESSEE v. MICHAEL S. NEVENS Court:TCCA Attorneys: David L. Raybin, Nashville, Tennessee, for the appellant, Michael S. Nevens. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Derek Keith Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals from his conviction for theft of a bottle of tea, contesting the jury instructions, the effectiveness of his trial counsel, the state's cross-examination of defense witnesses, the state's closing argument and the trial court's failure to rule upon a subsequent objection, and his sentence. Because the trial court erred in instructing the jury, we reverse the defendant's conviction and remand the case to the trial court. http://www.tba.org/tba_files/TCCA/nevensms.wpd STATE OF TENNESSEE v. MICHAEL RAY SWAN Court:TCCA Attorneys: Ramona P. DeSalvo, Nashville, Tennessee, for the appellant, Michael Ray Swan. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; Joe James, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Lytle A. James, Assistant District Attorney. Judge: WADE First Paragraph: The defendant, Michael Ray Swan, was convicted for simple assault, driving on a revoked, suspended, or cancelled license, and violating the implied consent law. The trial court sentenced the defendant to 11 months, 29 days for the assault; ordered a term of six months on the revoked license conviction; and revoked the defendant's license for one year for violating the implied consent law. In this appeal of right, the defendant presents the following issues: (1) whether there was sufficient evidence to support the convictions; (2) whether the trial court properly charged the jury; (3) whether the trial court erred by allowing the state to submit a statement of evidence; (4) whether the trial court erred by denying defendant's motion to stay the suspension of his license; and (5) whether the trial court erred by revoking the defendant's license. After a review of the record, we reverse and dismiss the conviction for driving on a revoked, suspended, or cancelled license; the judgment for the implied consent violation is modified to a one-year suspension rather than revocation. The conviction for simple assault is affirmed. http://www.tba.org/tba_files/TCCA/swanmr.wpd "Public Hearing" under Tenn. Code Ann. S 5-12-108 Date: April 19, 2001 Opinion Number: 01-061 http://www.tba.org/tba_files/AG/OP61.pdf Authority of local beer board to engage the services of a private investigator to investigate reports of the sale of beer to minors. Date: April 20, 2001 Opinion Number: 01-062 http://www.tba.org/tba_files/AG/OP62.pdf Interpretation of Tenn. Code Ann. S 62-6-111(i)(2) Date: April 20, 2001 Opinion Number: 01-063 http://www.tba.org/tba_files/AG/OP63.pdf State Lottery and the Federal Indian Gaming Regulatory Act Date: April 24, 2001 Opinion Number: 01-064 http://www.tba.org/tba_files/AG/OP64.pdf Constitutionality of Proposed Amendments to Pawn Shop Laws Date: April 25, 2001 Opinion Number: 01-065 http://www.tba.org/tba_files/AG/OP65.pdf 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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