June 21, 2001 Volume 7 — Number 113 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):   01 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 05 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. Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink JOHN M. CLINARD, et al. v. C. ROGER BLACKWOOD, et al. Court:TSC First Paragraph: The appellants, John M. Clinard and Edward Clinard and American Limestone Co., Inc., have filed a petition to rehear in this case in which they contend that the opinion overlooks a material fact and propositions of law. Upon due consideration, the petition to rehear is respectfully denied. Justice Drowota adheres to the views contained in his concurring and dissenting opinion, and Justice Barker adheres to the views contained in his concurring opinion. http://www.tba.org/tba_files/TSC/clinardj_ord.wpd DONALD MCLEAN ANDREWS v. BARBARA ROGERS ANDREWS Court:TCA Attorneys: Thomas F. Bloom, Nashville, Tennessee, for the appellant, Barbara Rogers Andrews. John R. Phillips, Jr., Gallatin, Tennessee, for the appellee, Donald McLean Andrews. Judge: COTTRELL First Paragraph: In this post-divorce case, each party sought modification of the child support order. The obligor father sought a decrease based on the older child's eighteenth birthday and graduation from high school. The obligee mother sought an increase based upon her belief that the father's income had increased. The trial court ordered a decrease based upon the older child's emancipation, but increased the amount due for the remaining minor child. The mother appeals, contending that the trial court failed to consider some of the father's work related benefits when setting the support. Because the mother had the burden of proving additional income to the father, and because she failed to meet that burden, we affirm the trial court. http://www.tba.org/tba_files/TCA/andrewsd.wpd JULIUS HILL v. PERRIGO OF TENNESSEE Court:TCA Attorneys: James L. Harris, Nashville, Tennessee, for the appellant, Julius Hill. Robert E. Boston, Brian A. Lapps, Jr., Nashville, Tennessee, for the appellee, Perrigo of Tennessee. Judge: COTTRELL First Paragraph: This is an appeal from a grant of summary judgment to defendant, former employer of plaintiff. The plaintiff claims that he was fired in violation of the whistleblower statute, Tenn. Code Ann. S 50-1- 304. The trial court found that the plaintiff failed to establish the prima facie elements under the statute, specifically, that the reason for his firing was solely because of his alleged reports of illegal activities. For the reasons below, we affirm. http://www.tba.org/tba_files/TCA/hillj.wpd RONALD ROBINETTE, SR. v. MARK JOHNSON Court:TCA Attorneys: Mark A. Baugh, Nashville, for Appellant Keith C. Dennen, James C. Bradshaw, Nashville, for Appellee Judge: HIGHERS First Paragraph: This appeal involves a dispute over a promissory note. The jury below found for the Plaintiff. We affirm the trial court and remand for a determination of reasonable attorneys' fees incurred by Plaintiff with respect to this appeal. http://www.tba.org/tba_files/TCA/robinetteronald.wpd MELISSA JANE (NICHOLS) STEEN v. EVANS HARRINGTON STEEN Court:TCA First Paragraph: The appellee has filed a Petition for Rehearing. After careful consideration, we deny the appellee's petition. Appellee bases his petition on his belief that this court's opinion is not supported by the facts of the case and that this court did not properly weigh the trial court's assessment of the witnesses' credibility. This court overturned the decision of the trial court, and held that the mother should have primary custody of the children. The appellee argues that the parents had equal time with the children after the divorce in 1994 except for an eight-week period until the terms under the divorce decree were enforced in 1998. The evidence in the record shows that the children resided for a majority of the time with their mother. Although there was evidence that the father spent a great deal of time with the children, the majority of their sleeping and waking moments were spent in their mother's care. As we stated in our opinion, there is a presumption in favor of continuity of placement when all other factors are equal. Placencia v. Placencia, 3 S.W.3d 497 (Tenn. Ct. App. 1999). The evidence presented to the trial court showed all the factors to be equal. Therefore, primary custody should rest with the mother. Appellee also argues that this court did not give proper deference to the trial court's assessment of witness credibility. The trial court did not discredit the testimony of any witnesses. In fact, the trial court found that one of the witnesses for the mother was especially credible. For these reasons we deny the appellee's petition for rehearing. http://www.tba.org/tba_files/TCA/steenmj_reh.wpd DON WILLIAMS v. DONAL CAMPBELL Court:TCA Attorneys: Don Williams, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dawn Jordan, Assistant Attorney General, for the appellee, State of Tennessee. Judge: CANTRELL First Paragraph: A prison disciplinary board extended the release eligibility date of an inmate, after finding him guilty of assaulting a guard. He filed a petition for writ of certiorari which challenged the method used by the Department of Correction to calculate his new release eligibility date. The trial court dismissed the petition. We affirm. http://www.tba.org/tba_files/TCA/williamsd.wpd STATE OF TENNESSEE v. PHILIP R. WORKMAN Court:TCCA First Paragraph: In this capital case, Petitioner Philip R. Workman seeks this Court's review, pursuant to Rule 10, Tennessee Rules of Appellate Procedure, of the trial court's "Order Requiring Defense Attorney and State Attorney to Refrain, Stop and Desist From Making Any Statements, Writings, or Any Communication Outside the Court," ("gag order"), entered by Division III of the Shelby County Criminal Court on April 6, 2001, and reissued by the court on May 15, 2001. Workman contends that "[t]he trial court's order was entered without proof or creation of a record, and has departed so far from the accepted and usual course of judicial proceedings as to require immediate review." Additionally, he avers that "[t]here is no compelling state interest that justifies the extreme burden to Workman and his attorneys' rights, the order is over broad and offers no less restrictive means to accomplish any purpose, and the order violates the First, Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 19 of the Tennessee Constitution." We find that Workman's position in his Rule 10 application is well-taken. Accordingly, Workman's application for extraordinary appeal is GRANTED. See generally Tenn. R. App. P. 10(a)(1). http://www.tba.org/tba_files/TCCA/workmanrul10_ord.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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