May 31, 2001 Volume 7 — Number 099 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 07 New Opinion(s) from the Tennessee Court of Appeals 01 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 BLANCHE BUNCH v. ROBERT SHARP Court:TCA Attorneys: W. Andrew Fox, Knoxville, Tennessee, for Appellant, Blanche Bunch. Johnny V. Dunaway, LaFollette, Tennessee, for Appellee, Robert Sharp. Judge: FRANKS First Paragraph: In this boundary line dispute, the Trial Judge established the boundary between the parties' lands and Plaintiff has appealed. We affirm. http://www.tba.org/tba_files/TCA/bunchb.wpd GEORGE M. CLAYTON v. BETTY L. CLAYTON Court:TCA Attorneys: Steven M. Jacoway, Chattanooga, Tennessee, and Sharon G. Lee, Madisonville, Tennessee, for the appellant, George M. Clayton. H. Allen Bray, Maryville, Tennessee, for the appellee, Betty L. Clayton. Judge: SUSANO First Paragraph: This is a divorce case. The trial court granted the counter-plaintiff, Betty L. Clayton ("Wife"), a divorce from the original plaintiff, George M. Clayton ("Husband"), on the ground of inappropriate marital conduct; divided the parties' marital property; identified and decreed the distribution of their separate property; and awarded Wife alimony in solido of $325,000, plus attorney's fees of $15,000. Husband appeals the division of property, the amount of the alimony award, and the award of attorney's fees. We affirm. http://www.tba.org/tba_files/TCA/claytongm.wpd JENNIFER GREGG v. SHIRLEY MCKAY, DIANE FARLEY, and MICHAEL D. FLOYD Court:TCA Attorneys: Scott D. Hall, Sevierville, Tennessee, for the Appellant, Jennifer Gregg. Linda J. Hamilton Mowles, Knoxville, Tennessee, for the Appellees, Shirley McKay and Diane Farley. Judge: GODDARD First Paragraph: This is a suit seeking damages for sexual harassment filed by the Plaintiff/Appellant, Jennifer Gregg, in the Circuit Court for Sevier County against the Defendants/Appellees, Shirley McKay and Diane Farley. The Trial Court sustained the Defendants' motion for summary judgment . We vacate the judgment of the Trial Court and remand for further proceedings consistent with this opinion. Costs of appeal are adjudged against the Defendants. http://www.tba.org/tba_files/TCA/greggjen.wpd DANIEL ED LOWE v. FAYTELLA D. LOWE Court:TCA Attorneys: John W. Cleveland, Sweetwater, Tennessee, for the appellant, Daniel Ed Lowe. Ashley L. Ownby, Cleveland, Tennessee, for the appellee, Faytella D. Lowe. Judge: SUSANO First Paragraph: In this divorce case, the trial court dissolved a childless marriage of 5 1/2 years. Daniel Ed Lowe ("Husband") appeals, arguing that the trial court erred (1) in declaring the parties' antenuptial agreement void and (2) in granting Faytella D. Lowe ("Wife") half of the increase in value of Husband's retirement benefits accrued during the marriage. We affirm. http://www.tba.org/tba_files/TCA/lowede.wpd PACKAGE EXPRESS CENTER, INC., v. DOUG MAUND AND EMM-DEE DRUG COMPANY, INC., D/B/A ATHENS PHARMACY Court:TCA Attorneys: Kelli L. Thompson, Baker, Donelson, Bearman & Caldwell, P.C., Knoxville, Tennessee, for Appellants Doug Maund and Emm-Dee Drug Company, Inc. William S. Nunnally, Rogers, Laughlin, Nunnally, Hood & Crum, P.C., Greeneville, Tennessee, for Appellee, Package Express Center, Inc. Judge: FRANKS First Paragraph: In this breach of contract action, the Trial Judge enforced a non-compete provision by injunction and awarded damages. We reverse the issuance of the injunction and remand to establish reasonable damages for breach of the agreement. http://www.tba.org/tba_files/TCA/packageec.wpd SUSANO CONCURRING AND DISSENTING http://www.tba.org/tba_files/TCA/package_con.wpd TENNESSEE FARMERS MUTUAL INSURANCE CO. v. ROBERT WESTMORELAND, et al. Court:TCA Attorneys: J. Arnold Fitzgerald, Dayton, Tennessee, for the Appellants Robert Westmoreland and Elizabeth Westmoreland. David R. Swafford, Pikeville, Tennessee, for the Appellee Tennessee Farmers Mutual Insurance Company. Judge: SWINEY First Paragraph: Tennessee Farmers Mutual Insurance Company ("Plaintiff") filed a declaratory judgment action claiming that the homeowner's insurance policy issued to Robert and Elizabeth Westmoreland ("Defendants") was void due to material misrepresentations made on the application for insurance by Mr. Westmoreland. Defendants claim they provided the correct information, but it was incorrectly recorded by the insurance agent. The Trial Court granted Plaintiff's motion for summary judgment. We affirm. http://www.tba.org/tba_files/TCA/tennesseefm.wpd BRENDA L. TIPTON v. RICHARD G. JONES, et al. Court:TCA Attorneys: John T. Rice, Chattanooga, Tennessee, for the Appellant Allstate Insurance Company. John D. Agee, Kingston, Tennessee, for the Appellee Brenda Tipton. Judge: SWINEY First Paragraph: Brenda L. Tipton ("Plaintiff") filed this lawsuit seeking damages for personal injury. Allstate Insurance Company ("Allstate"), Plaintiff's uninsured motorist carrier, filed a motion in limine seeking to exclude portions of the testimony of Plaintiff's treating physician because it was not based upon a reasonable degree of medical certainty. Allstate also claimed that the jury verdict was excessive and it was entitled to a remittitur or a new trial. We affirm the Trial Court's evidentiary rulings and its refusal to grant a remittitur or new trial. http://www.tba.org/tba_files/TCA/tiptonbl.wpd RICHARD LEE FRANKLIN v. STATE OF TENNESSEE Court:TCCA Attorneys: Allison M. Barker, Crossville, Tennessee, for the appellant, Richard Lee Franklin. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; William E. Gibson, District Attorney General; Anthony J. Craighead, Assistant District Attorney General; and Ben Fann, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: In his original trial, the Petitioner, Richard Lee Franklin, was convicted of first degree murder by a Cumberland County jury for the death of David Kirkland. Due to procedural errors at Petitioner's first trial, the trial court granted Petitioner's motion for a new trial. Petitioner was retried and the jury convicted him of second degree murder. The trial court sentenced the Petitioner to twenty-two years of incarceration. State v. Richard Lee Franklin, No. 03C01-9706-CR-00219, 1998 WL 458580, at *1, Cumberland County (Tenn. Crim. App., Knoxville, August 10, 1998), perm. to appeal denied (Tenn. 1999). Subsequently, Petitioner filed a petition for post-conviction relief which was denied. In this appeal as of right, he asserts that the post-conviction court erred in finding his trial counsel's performance to be effective. Specifically, the appellant contends that trial counsel was ineffective for (1) failing to investigate and present witnesses that would support a defense of self- defense; (2) for failing to discuss trial strategies and defenses with the Petitioner; and (3) for failing to request an instruction on self-defense. After review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/franklinrl.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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