May 23, 2001 Volume 7 — Number 094 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 06 New Opinion(s) from the Tennessee Court of Appeals 02 New Opinion(s) from the Tennessee Court of Criminal Appeals 04 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 MICHAEL RAY BRENNEMAN v. MARGARET ANN REDD BRENNEMAN Court:TCA Attorneys: Clark Lee Shaw, Nashville, Tennessee, for the appellant, Margaret Ann Redd Brenneman. James B. Dance, Carthage, Tennessee, for the appellee, Michael Ray Brenneman. Judge: KOCH First Paragraph: This appeal involves the dissolution of a 31-year marriage by the Circuit Court for Wilson County. Following a bench trial, the trial court declared the parties divorced and divided their marital property but declined to award the wife spousal support. On this appeal, the wife asserts that the trial court erred by declining to grant her spousal support. We have determined that the trial court placed too much emphasis on the value of the wife's share of the marital estate when it declined to grant her spousal support. Accordingly, we have determined that the judgment should be amended to award the wife spousal support in the amount of $200 per month until she reaches sixty-five years of age. We also remand the case to the trial court to calculate a reasonable award for the wife's legal expenses. http://www.tba.org/tba_files/TCA/brennemanmr.wpd FRANKLIN COUNTY, TENNESSEE v. THE TOWN OF MONTEAGLE, TENNESSEE, et al. Court:TCA Attorneys: William C. Killian, Jasper, Tennessee, and David B. Hamilton, Knoxville, Tennessee, for the appellant, The Town of Monteagle, Tennessee and Michael Yarworth, Judith Gunn, Maxine Kemmerly, Thomas Moore, Sr., and Glenn King, in their official capacities as Members of the Grundy County Election Commission. Ben P. Lynch, Winchester, Tennessee, and Carrol D. Kilgore, Nashville, Tennessee, for the appellee, Franklin County, Tennessee. Judge: INMAN First Paragraph: This is an annexation by referendum case. Monteagle is located in Grundy County. Its corporate limits extend to Franklin County. Interested residents of the area sought to be annexed in Franklin County petitioned Monteagle to be annexed. Monteagle adopted a Resolution for the referendum. Nineteen out of twenty eligible voters favored annexation. Franklin County filed a complaint for injunctive relief, which was granted upon a finding that the Resolution was not properly published. Monteagle appealed, but in the interim, adopted another Resolution for a referendum. The voters again favored annexation. The County challenged the second referendum by a Rule 52 motion alleging that Monteagle repealed the Resolution for the second referendum thus making it a nullity. http://www.tba.org/tba_files/TCA/franklincounty.wpd IN THE MATTER OF JUSTIN IVORY JONES ROCHELLE MCDONALD v. PERCY L. JONES Court:TCA Attorneys: Gail W. Horner, Germantown, For Appellant, Rochelle McDonald Melanie E Taylor, Memphis, For Appellee, Percy L. Jones Judge: CRAWFORD First Paragraph: This is an appeal of an order changing custody of the parties' minor child. Father filed a petition for change of custody, alleging that the change was in the best interests of the child. The juvenile court, upon rehearing of father's petition to change custody, reconfirmed the original order changing custody to the father. Mother appeals. We reverse the order of the juvenile court and hold that custody of the minor child be returned to his mother. http://www.tba.org/tba_files/TCA/jonesjus.wpd ROBERT J. McCURLEY, et al. v. HAROLD ANGUS, et al. Court:TCA Attorneys: John Van den Bosch, Jr., Jesse H. Ford, III, Jackson, for Appellants Phillip L. Davidson, Nashville, for Appellee Judge: HIGHERS First Paragraph: This is an action in negligence arising out of the demolition by the Appellee of a condemned building in Jackson, Tennessee pursuant to a contract with the city of Jackson. The demolished building was located adjacent to the Appellants' building, and the two buildings shared a party wall. The Appellants' building sustained damages as a result of the demolition of the condemned building. The Appellants brought a complaint against the Appellee in the Circuit Court of Madison County, alleging negligence on the part of the Appellee. The jury found in favor of the Appellee. The Appellants appeal from the entry of a jury verdict in favor of the Appellee. For the reasons stated herein, we affirm the trial court's decision. http://www.tba.org/tba_files/TCA/mccurleyrobertj.wpd JAMES C. PYBURN, et al. v. BILL HEARD CHEVROLET Court:TCA Attorneys: James W. Cameron, III, and Alexandra Coulter Cross, Nashville, Tennessee, for the Appellant Bill Heard Chevrolet. Douglas S. Johnston, Jr., and George E. Barrett, Nashville, Tennessee, John W. Barrett and Charles Barrett, Lexington, Mississippi, and Tom Scott, Knoxville, Tennessee, for the Appellee James C. Pyburn. Judge: SWINEY First Paragraph: James C. Pyburn ("Plaintiff") filed a complaint styled "Class Action Complaint" against Bill Heard Chevrolet ("Defendant") arising from Plaintiff's purchase of a 1999 Chevrolet van. Plaintiff claims he was told by Defendant that it could arrange financing through General Motors Acceptance Corporation ("GMAC") at competitive rates offered by GMAC. Plaintiff alleges that he did not obtain GMAC's real interest rate, but instead received a "secretly inflated" interest rate, and that Defendant was paid a kickback on the interest rate over and above the lender's real interest rate. Plaintiff sued pursuant to the Tennessee Consumer Protection Act ("TCPA"), T.C.A. S 47-18-101, et seq., and also asserted several common law theories of recovery. At the time of the purchase, Plaintiff and Defendant executed an Arbitration Agreement ("Agreement") covering the claims currently asserted by Plaintiff. Defendant moved to compel arbitration pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. S 2. The Trial Court held that the FAA applied, that the Agreement did not need separate consideration to be enforceable, that it was not an unenforceable adhesion contract, and that TCPA claims in general were amenable to arbitration under the FAA. The Trial Court further held, however, that this particular Agreement was not enforceable because of the unavailability of class action or injunctive relief in an arbitral forum, and because the costs of arbitration were "potentially prohibitive" since Plaintiff's claims were so small. We reverse the Trial Court's holding that the Agreement is not enforceable. http://www.tba.org/tba_files/TCA/pyburnjc.wpd MELISSA JANE (NICHOLS) STEEN v. EVANS HARRINGTON STEEN Court:TCA Attorneys: Michael W. Binkley, Nashville, Tennessee, for the appellant, Melissa Jane (Nichols) Steen. Mary Arline Evans and John Michael Garrett, Nashville, Tennessee, for the appellee, Evans Harrington Steen. Judge: CANTRELL First Paragraph: In this custody case the General Sessions Court of Wilson County changed its custody order from joint care and control with primary custody in the father to exclusive custody in the father and standard visitation to the mother. The record shows, however, that the mother has had primary custody of the children since the divorce and that both parties are fit parents. They each love the children and take good care of them. Under those circumstances, we hold that there is a presumption in favor of continuity of placement. Therefore, we reverse the lower court's order and grant primary custody to the mother. http://www.tba.org/tba_files/TCA/steenmj.wpd ALAN HALL v. STATE OF TENNESSEE Court:TCCA Attorneys: Alan Hall, Mountain City, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; and H. Greeley Wells, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: On April 30, 1996, the petitioner, Alan Hall, pled guilty in the Sullivan County Criminal Court to first degree murder, especially aggravated robbery, especially aggravated burglary, aggravated burglary, theft over $1000, and possession of burglary tools. The petitioner received a total effective sentence of life plus twelve years. Subsequently, on September 15, 1999, the trial court entered an order correcting the petitioner's judgment of conviction for especially aggravated robbery to reflect that the petitioner would serve one hundred percent (100%) of his sentence in confinement instead of thirty percent (30%) as was erroneously reflected on the original judgment. Within a year after the entry of the corrected judgment, the petitioner filed a pro se petition for post-conviction relief. The post-conviction court dismissed the petition as being barred by the statute of limitations. On appeal, the petitioner contests the dismissal of his petition for post-conviction relief. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/halla.wpd STATE OF TENNESSEE v. DENNIS R. JACKS Court:TCCA Attorneys: J. Thomas Marshall, Jr., District Public Defender, and Nancy Carol Meyer, Assistant Public Defender, for the appellant, Dennis R. Jacks. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; James N. Ramsey, District Attorney General; and Janice G. Hicks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals from the revocation of his probation, contesting the trial court's jurisdiction. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Jacksdr.wpd County Highway Department's Responsibility for Private Bridge Repairs Date: May 17, 2001 Opinion Number: 01-080 http://www.tba.org/tba_files/AG/OP80.pdf Review of judicial commissioner appointment and powers Date: May 18, 2001 Opinion Number: 01-081 http://www.tba.org/tba_files/AG/OP81.pdf Authority of civil court trial judges to include the expense of jury members' meals in the assessment of discretionary costs Date: May 18, 2001 Opinion Number: 01-082 http://www.tba.org/tba_files/AG/OP82.pdf "Consulting Services" under Senate Bill 239/House Bill 344 Date: May 22, 2001 Opinion Number: 01-083 http://www.tba.org/tba_files/AG/OP83.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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