May 1, 2001 Volume 7 — Number 079 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 02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 02 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 05 New Opinion(s) from the Tennessee Court of Appeals 03 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 BONNIE ELLIOTT v. THE BLAKEFORD AT GREEN HILLS CORPORATION Court:TSC - Workers Comp Panel Attorneys: Robert R. Davies, Nashville, Tennessee for the appellant, The Blakeford at Green Hills Corporation. Dana C. McLendon III, Franklin, Tennessee for the appellee, Bonnie Elliott Judge: WEATHERFORD First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant, The Blakeford at Green Hills Corporation appeals the judgment of the Chancery Court of Williamson County where the trial court found: 1) the plaintiff, Mrs. Bonnie Elliott suffered a compensable work-related injury when she ruptured three extensor tendons in her left hand while working for the defendant; 2) Mrs. Elliott entitled to temporary total disability benefits for 32 weeks, and permanent partial disability benefits for 150 weeks based on a seven percent (7%) permanent anatomical impairment and twenty-eight percent (28%) vocational disability; 3) the defendant failed or refused to offer or provide medical attention to Mrs. Elliott in violation of Tennessee Code Annotated S 50-6-204 entitling her to a judgment of $711.36 for reimbursement of medical and insurance premium expenses; and 4) the defendant wrongfully and in bad faith failed to pay Mrs. Elliott's claim for temporary total disability payments entitling her to an additional judgment of $711.36. For the reasons discussed in this opinion we find that the judgment of the trial court should be affirmed as modified. http://www.tba.org/tba_files/TSC_WCP/elliottbonnie.wpd UNION BANK & TRUST CO., et al. v. KIRBY BOLES, and JAMES FARMER, DIRECTOR OF THE TENNESSEE DIVISION OF WORKER'S COMPENSATION, SECOND INJURY FUND, et al. Court:TSC - Workers Comp Panel Attorneys: Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee for the Appellant, James Farmer, Director of the Tennessee Division of Worker's Compensation Second Injury Fund. Kelly R. Williams, Livingston, Tennessee for the Appellee, Kirby Boles. Judge: GRAY First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Second Injury Fund appeals claiming a setoff/credit for the amount of temporary total disability benefits paid to the employee by the employer and a setoff/credit for social security contribution made by the employer. For reason stated the judgment of the trial court is affirmed, and this case is remanded http://www.tba.org/tba_files/TSC_WCP/uniontrustopn.wpd SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0430.wpd IN RE: PROPOSED TENNESSEE RULES OF PROFESSIONAL CONDUCT Court:TSC - Rules Order extending deadline for comment to June 30, 2001. http://www.tba.org/tba_files/TSC_Rules/profconduct.pdf JAMES P. BLOCK v. DOCTOR R. CRANTS, et al. Court:TCA Attorneys: James P. Block, Pro se. Tom Anderson, Jackson, Tennessee, for the Appellees, Percy H. Pitzer and Earl Bowden. Judge: FARMER First Paragraph: The plaintiff filed suit for injuries sustained in a fall while he was incarcerated in a correctional facility operated by Corrections Corporation of America. Defendants filed a motion to dismiss the complaint on the basis Plaintiff failed to file an affidavit of inability to pay as required by Tenn. Code Ann. S 41-21-805 and failure to comply with section 41-21-806 regarding grievances. The motion was granted. We reverse, having determined that the Plaintiff is not an "inmate" within the statutory definition. http://www.tba.org/tba_files/TCA/blockjamesp.wpd DEBRA CISSOM, et al. v. AL MILLER, et al. Court:TCA Attorneys: Denny E. Mobbs, Cleveland, Tennessee, for the Appellants, Al Miller, Virginia Miller and Alfred M. Miller, Jr. Jes Beard, Chattanooga, Tennessee, for the Appellees, Debra Cissom and John Robert Cissom, Jr. Judge: GODDARD First Paragraph: The Plaintiffs sue the Defendants, alleging a nuisance created by chicken houses owned and operated by them in close proximity of the Defendants' property. The Trial Court found a temporary nuisance was created and that, although T.C.A. 44-18-102 was a complete bar to any claims the Plaintiffs might have insofar as three older chicken houses were concerned, is not a bar to their claim as to five new chicken houses. We affirm. http://www.tba.org/tba_files/TCA/cissomdeb.wpd EDDIE JOE HURST, SR. v. SHEILA GAIL WILLIAMS HURST Court:TCA Attorneys: Robert M. Cohen, Maryville, Tennessee, for the Appellant, Sheila Gail Williams Hurst. Craig L. Garrett, Maryville, Tennessee, for the Appellee, Eddie Joe Hurst, Sr. Judge: GODDARD First Paragraph: This appeal from the Blount County General Sessions Court concerns whether the Trial Court erred in dismissing the Complaint to Enforce Judgment filed by the Appellant, Sheila Gail Williams Hurst. Ms. Hurst appeals the decision of the General Sessions Court. We reverse the decision of the Trial Court and remand for further proceedings, if any, consistent with this opinion. We adjudge cost of the appeal against the Appellee, Eddie Joe Hurst, Sr. http://www.tba.org/tba_files/TCA/hurstedd.wpd ERNEST F. PHILLIPS v. COUNTY OF ANDERSON, et al. Court:TCA Attorneys: Ernest F. Phillips, Clinton, Tennessee, Pro Se. David S. Clark, Oak Ridge, Tennessee, for the appellee, Anderson County, Tennessee. Roger L. Ridenour, Clinton, Tennessee, and John T. Batson, Jr., Knoxville, Tennessee, for the appellee, City of Clinton. Judge: SUSANO First Paragraph: The defendants, Anderson County and the City of Clinton, entered into an agreement to jointly finance the development of an industrial park to be owned and operated by the City. The plaintiff, Ernest F. Phillips, brought this action for declaratory and injunctive relief, alleging that the County's financing of a portion of the industrial park is illegal and unconstitutional and that the defendants violated various statutory requirements for the development of industrial parks. The trial court granted the defendants summary judgment. The plaintiff appeals, arguing: (1) that the County's use of bond proceeds to finance its portion of the industrial park's infrastructure costs constitutes a lending or giving of credit to or in aid of a corporation within the meaning of Article II, Section 29 of the Tennessee Constitution; (2) that the agreement between the County and the City is not legally sufficient under the Industrial Park Act; (3) that the County obtained a statutorily-required certificate of public purpose and necessity by fraud and misrepresentation; and (4) that the County's bond resolutions are fatally defective and call for prohibited expenditures. The City argues (a) that the plaintiff lacks standing to challenge the City's actions and (b) that the plaintiff's appeal is frivolous. We affirm the grant of summary judgment to the defendants but do not find the plaintiff's appeal to be frivolous. http://www.tba.org/tba_files/TCA/phillipsef.wpd JAMES E. SWIGGETT v. CARL R. OGLE, JR., and J. MICHAEL KERR Court:TCA Attorneys: James E. Swiggett, Mountain City, Tennessee, pro se. Carl R. Ogle, Jr., Jefferson City, Tennessee, for Appellees. Judge: FRANKS First Paragraph: In this action for legal malpractice, the Trial Court ruled a prior suit filed by plaintiff and dismissed on the merits was res judicata to this action. We affirm. http://www.tba.org/tba_files/TCA/swiggettj.wpd STATE OF TENNESSEE v. MICHAEL COLVIN Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee; David F. Bautista and Ivan M. Lilly, Johnson City, Tennessee, for the appellant, Michael Colvin. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; David Crockett, District Attorney General; and Steve Finney, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Michael Colvin, pled guilty in the Johnson County Criminal Court to one count of possession of an explosive device, a class A misdemeanor, and to one count of reckless endangerment, a class A misdemeanor. The judgments as entered by the trial court incorrectly classify the appellant as a Range I standard offender and impose two consecutive sentences of eleven months and twenty-nine days in the Johnson County Jail. The judgments further order that the appellant serve thirty percent (30%) of his sentences before becoming eligible for "program work release." The trial court suspended service of both the appellant's sentences, placed him on probation, and imposed certain special conditions. Subsequently, the appellant pled guilty to the violation of his probation. The trial court revoked the appellant's probation and ordered the appellant to serve one hundred percent (100%) of his sentences in confinement. On appeal, the appellant raises the following issue for our review: whether the trial court erred by ordering the appellant to serve one hundred percent (100%) of his sentences in confinement pursuant to the appellant's probation revocation. Upon review of the record and the parties' briefs, we reverse the judgment of the trial court and remand for modification of the judgments consistent with this opinion. http://www.tba.org/tba_files/TCCA/colvinm.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/colvinmichaeldis.wpd STATE OF TENNESSEE v. JOHN RILEY ROPER Court:TCCA Attorneys: Joe Coster, Maryville, Tennessee, for the appellant, John Riley Roper. Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; Michael L. Flynn, District Attorney General; and William R. Reed, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals from his conviction for driving under the influence, third offense, contending that the trial court erred by denying his motion to sever. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/roperjr.wpd STATE OF TENNESSEE v. MICHAEL SHAWN SHOFNER Court:TCCA Attorneys: Mark E. Stephens, District Public Defender; Paula R. Voss and Jim Owen, Assistant Public Defenders, Knoxville, Tennessee, for the Appellant, Michael Shawn Shofner. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; Randall E. Nichols, District Attorney General; Patti Cristil, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Michael Shawn Shofner appeals from the Knox County Criminal Court's denial of his "Motion to Void Judgment," in which he seeks relief under Rule of Civil Procedure 60.02 from an order declaring that he is an habitual motor vehicle offender. He claims on appeal that the habitual motor vehicle offender order is void because (1) no summons was attached to the show cause order served upon him to notify him of the habitual motor vehicle offender proceedings, and (2) the state failed to obtain an alias summons after process was not returned within thirty days of entry of the show cause order. We hold that Shofner's motion for relief under Rule 60.02 is untimely. Therefore, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/shofnerms.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! 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