July 17, 2001 Volume 7 — Number 129 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 05 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 08 New Opinion(s) from the Tennessee Court of Appeals 04 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 MARY REGINA BLALOCK v. TRAVELERS INSURANCE COMPANY, et al Court:TSC - Workers Comp Panel Attorneys: Howard B. Hayden, Memphis, Tennessee, for the appellant, Travelers Insurance Company. P. Allen Phillips, Jackson, Tennessee, for the appellee, Kemper/Lumbermen's Mutual Casualty Company. Richard D. Click, Memphis, Tennessee, for the appellee, Mary Regina Blalock. Judge: LOSER First Paragraph: This workers' compensation appeal of consolidated cases has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appellant, Travelers, insists (1) the trial court improperly applied the last injurious injury rule, (2) the trial court erred by assuming certain facts and taking judicial notice of matters not in evidence, (3) the trial court erred by giving deference to the opinion of an evaluating physician instead of a treating physician and (4) the award of benefits based on 25 percent to both arms is excessive. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/blalockmary.wpd WILLIAM CRAIG BROWNING v. JAMES RIVER CORPORATION Court:TSC - Workers Comp Panel Attorneys: D. Scott Turner and Thomas F. Preston, Memphis, Tennessee, for the appellant, James River Corporation. Lewis L. Cobb, Jackson, Tennessee, for the appellee, William Craig Browning. Judge: STAFFORD First Paragraph: This worker's 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 trial court determined that the plaintiff suffered a 50% vocational impairment to each leg. The defendant asserts that the plaintiff failed to provide proper notice of his injuries; that he failed to prove that the injuries arose out of and within the course and scope of his employment; and that the evidence does not support the amount of vocational disability awarded. For the reasons set forth below, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/browningw.wpd DORAN DISSENTING http://www.tba.org/tba_files/TSC_WCP/browningwdis.wpd DARRA McMILLIN v. McKENZIE SPECIAL SCHOOL DISTRICT, et al. Court:TSC - Workers Comp Panel Attorneys: Paul G. Summers, Attorney General & Reporter, and E. Blain Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellant, Second Injury Fund. J. Arthur Crews, II, Jackson, Tennessee, for the appellee/appellant, McKenzie Special School District. Donna Brown Wilkerson and Ricky Boren, Jackson, Tennessee, for the appellee, Darra McMillan. Judge: LOSER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the Second Injury Fund (the Fund) insists the trial court erred in (1) awarding permanent total disability benefits and (2) apportioning the award between the Fund and the employer. The employer insists (1) the employee's injury is not compensable, (2) the trial court erred in commuting one-half of the award to a lump sum, and (3) the trial court erred in awarding the employee a scooter and special bed. As discussed below, the panel has concluded judgment should be modified by reducing the lump sum, because it exceeds the statutorily allowed maximum, but otherwise affirmed. http://www.tba.org/tba_files/TSC_WCP/mcmillindara.wpd JOHN PATTERSON v. THE PHELAN COMPANY, INC. Court:TSC - Workers Comp Panel Attorneys: Jeffery P. Boyd, Jackson, TN, for the appellant, The Phelan Company, Inc. T.J. Emison, Jr., Alamo, TN, for the appellee, John Patterson. Judge: ASH First Paragraph: The workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff sustained a twenty-two and one-half percent permanent partial disability to the body as a whole as a result of an on-the-job injury to his neck. The defendant claims the evidence does not support the finding. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/pattersonj.wpd DOROTHY PIRTLE v. ROYAL INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: Stephen D. Jackson, Trotter & Jackson, Huntingdon, Tennessee, for the appellant, Royal Insurance Company. Kyle E. Crowe, Martin, Tennessee, for the appellee, Dorothy Pirtle. Judge: LOSER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer's insurer insists (1) the award of benefits based on 75 percent permanent partial disability to both arms is excessive and (2) the trial court erred in awarding as discretionary costs an independent medical examiner's fee for examining and evaluating the injured employee. As discussed below, the panel has concluded the award of disability benefits should be affirmed and the award of discretionary costs modified. http://www.tba.org/tba_files/TSC_WCP/pirtledor.wpd STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. PAMELA COX (GRAVES), et al. Court:TCA Attorneys: David Kozlowski, Columbia, Tennessee, for the appellant, Pamela Cox (Graves). Paul G. Summers, Attorney General and Reporter and Douglas Earl Dimond, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children's Services. Judge: CAIN First Paragraph: This case presents two issues. The first is whether proper notice was given to the mother of a dependent and neglected child to meet due process requirements and allow adjudication of her right to visitation and of the goal of the permanency plan for the child. The second issue is whether the evidence preponderated against the trial court's decision to change the goal of the permanency plan to termination of parental rights and terminate the mother's visitation. We affirm the circuit court on both issues finding no due process violation and more than adequate evidence to support the trial court's decision. http://www.tba.org/tba_files/TCA/coxpamela.wpd JAMES PATRICK DORTCH, SR. v. EVONNE P. DORTCH Court:TCA Attorneys: D. Scott Parsley, Nashville, Tennessee, for the appellant, James Patrick Dortch, Sr. Amanda McClendon, Nashville, Tennessee, for the appellee, Evonne P. Dortch. Judge: KOCH First Paragraph: This appeal involves a dispute over the division of a marital estate following a seventeen-year marriage. Both parties sought a divorce in the Circuit Court for Davidson County. During a short bench trial, they stipulated that each of them had grounds for divorce but contested the classification, valuation, and division of their separate and marital property. The trial court declared the parties divorced and undertook to divide their marital estate equally. Both parties are dissatisfied with the division of the marital estate. The husband asserts that the trial court made a significant mathematical error in calculating the amount required to equalize the division. For her part, the wife asserts that the trial court misclassified items of separate property as marital property. We have determined that the trial court properly determined that the parties should receive equal shares of the net marital estate. However, we also find that the trial court misclassified a number of items of the wife's separate property and erroneously calculated the amount to be awarded to the wife to equalize the division of the marital estate. Accordingly, we have corrected the errors and affirm the judgment as modified herein. http://www.tba.org/tba_files/TCA/dortchjp.wpd In Re: E.K.C.T. H.C. v. S.T. Court:TCA Attorneys: Dail R. Cantrell, Clinton, Tennessee, for the Appellant H.C. Vivian L. Crandall, Oak Ridge, Tennessee, for the Appellee S.T. Judge: SWINEY First Paragraph: This is a child custody case. A paternity action was filed on behalf of H.C. ("Mother"), and S.T. ("Father") admitted he was the natural father of the minor child, E.K.C.T. Over two years later, Father filed a petition seeking custody of E.K.C.T., alleging that there had been a material change in circumstances and that it would be in the best interest of E.K.C.T. for custody to be transferred to him. After a trial, the Juvenile Court granted Father's petition finding there had been a material change in circumstances and that it would be in the best interest of the child for Father to have custody. Mother appeals the admission of certain evidence which she claims was protected by the attorney-client privilege, as well as the transfer of custody to Father. We affirm. http://www.tba.org/tba_files/TCA/ekct.wpd FRED HODGES v. VIRGINIA LEWIS, WARDEN Court:TCA Attorneys: Fred Hodges, Pro Se Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Stephanie R. Reevers, Senior Counsel, for Appellee Judge: CRAWFORD First Paragraph: Inmates of Tennessee Department of Correction filed in the chancery court a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. The chancery court dismissed the inmates' petition for lack of subject matter jurisdiction. Inmates have appealed. We affirm. http://www.tba.org/tba_files/TCA/hodgesfred.wpd KEEHN V. HOSIER v. CRYE-LEIKE COMMERCIAL, INC. Court:TCA Attorneys: J. Russell Farrar and Mary Byrd Ferrara, Nashville, Tennessee, for the appellant, Crye-Leike Commercial, Inc. Keith C. Dennen, Nashville, Tennessee, for the appellee, Keehn V. Hosier. Judge: KOCH First Paragraph: This appeal involves a dispute regarding the application of an attorney's fees provision in a property management agreement. The property owner filed suit against the property manager in the Chancery Court for Sumner County alleging not only breach of contract but also fraud, misrepresentation, and breach of fiduciary duty. Following a bench trial, the trial court awarded the property owner a $1,600 judgment for breach of contract and dismissed his remaining claims. Thereafter, the trial court awarded the property owner an additional $15,944 for his legal fees and $219 in discretionary costs. The property manager has appealed only from the award for legal fees, asserting that the property owner is not entitled to reimbursement for the legal fee associated with his unsuccessful tort claims. We have determined that the challenged legal services were necessary to counter the property manager's exculpatory clause defense and that the challenged legal fees, under all the circumstances, are reasonable. Accordingly, we affirm the trial court's $15,944 award for legal fees. http://www.tba.org/tba_files/TCA/hosierkv.wpd CONNIE L. McGAHEY v. JAMES M. WILSON Court:TCA Attorneys: G. Dennis Jinkerson, Goodlettsville, Tennessee, for the appellant, James M. Wilson. H. E. Miller, Jr., Gallatin, Tennessee, for the appellee, Connie L. McGahey. Judge: CAIN First Paragraph: Upon divorce, the parties entered into an agreement that provided the parties would retain ownership as the marital residence as tenants in common, but could not sell the property without mutual consent. Mrs. McGahey now desires to partition the property over her former husband's objection. The special master found that the contract provision barring partition was unenforceable. The chancellor found the provision enforceable but only for a reasonable period of time (sixteen years). Mr. Wilson now appeals the trial court's judgment ordering partition by sale. Resolution of this appeal requires us to examine the effect of a contract barring partition between tenants in common when no time limitation or purpose for the restriction against sale was stated in the agreement. We hold the contract provision to be unenforceable. http://www.tba.org/tba_files/TCA/mcgaheyconnie.wpd JAMES RAY v. THOMAS ALVIN RICHARDS Court:TCA Attorneys: Jason S. Mangrum and Aaron T. Raney, Nashville, Tennessee, for the appellant, James Ray. Julian W. Blackshear, Jr. and Jeffrey W. Blackshear, Nashville, Tennessee, for the appellee, Thomas Alvin Richards. Judge: CAIN First Paragraph: Plaintiff filed a complaint against Defendant for personal injuries resulting from an alleged assault which occurred on October 20, 1998. The jury found for Defendant. Plaintiff appeals raising two issues: (1) Whether the trial court committed reversible error by admitting evidence of Plaintiff's character, reputation, conduct, and criminal records, and (2) whether the trial court erred in allowing the neighbor's petition describing Plaintiff as a public nuisance into evidence. We affirm the trial court. http://www.tba.org/tba_files/TCA/rayjames.wpd MARY LINDA WINKLER v. TIPTON COUNTY BOARD OF EDUCATION, et al. Court:TCA Attorneys: J. Houston Gordon, Covington, Tennessee, for the appellant, Mary Linda Winkler. Valerie Barnes Speakman, Cordova, Tennessee, and Walker Tipton, Covington, Tennessee, for the appellees, Tipton County Board of Education, et al. Judge: GLENN First Paragraph: The petitioner, a tenured teacher employed by the Tipton County Board of Education, was charged with two counts of unprofessional conduct arising from a single episode. Following a hearing before the Board, she was suspended for the remainder of the school year, and timely appealed to the chancery court. The petitioner raised, as issues on appeal, that the chancery court erred: (1) in upholding the decision of the school board to suspend the petitioner; (2) in not allowing the petitioner to combine in a single action her appeal of the suspension and a 42 U.S.C. S 1983 complaint; and (3) in not allowing additional discovery for her discrimination claim. Based upon our review, we conclude that the chancery court erred in affirming the suspension of the petitioner and remand with instructions that the petitioner be reinstated. In all other respects, we affirm the judgment of the chancery court. http://www.tba.org/tba_files/TCA/winklerml.wpd STATE OF TENNESSEE v. LISA ANN AVERY Court:TCCA Attorneys: Benjamin S. Dempsey, Huntingdon, Tennessee, for the Appellant, Lisa Ann Avery. Paul G. Summers, Attorney General and Reporter, Kim R. Helper, Assistant Attorney General, G. Robert Radford, District Attorney General, and Eleanor Cahill, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant was indicted by the Carroll County Grand Jury for one count of introduction of drugs into a penal institution. The Defendant moved for pretrial diversion, but the request was denied by the District Attorney General. The Defendant filed a petition for writ of certiorari with the trial court to review the denial. The trial court denied the petition, finding that the District Attorney General did not abuse his discretion in denying the Defendant's request for pretrial diversion. The Defendant then pled guilty to one count of introduction of drugs into a penal institution and requested judicial diversion. The trial court denied judicial diversion and sentenced the Defendant as a Range I, standard offender to four years incarceration in the Tennessee Department of Correction, suspended after sixty days confinement. The Defendant now appeals, arguing that the trial court erred in denying her pretrial diversion, judicial diversion or full probation. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/averyla.wpd STATE OF TENNESSEE v. DOUGLAS C. CARR Court:TCCA Attorneys: A.C. Wharton, Jr., Tony N. Brayton, and Paula Skahan, Memphis, Tennessee, for the appellant, Douglas C. Carr. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee Coffee, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Douglas C. Carr, pled guilty in the Shelby County Criminal Court to one count of driving while an habitual motor vehicle offender. Pursuant to the plea agreement, the petitioner was sentenced as a standard Range I offender to eighteen months incarceration in the Shelby County Correction Center with the manner of service to be determined by the trial court. The trial court denied the appellant alternative sentencing, and, on appeal, the appellant raises the following issue for our review: whether the trial court erred in denying the appellant alternative sentencing. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/carrdouglas.wpd STATE OF TENNESSEE v. EARNEST CUNNINGHAM Court:TCCA Attorneys: Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Earnest Cunningham. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals, via certified question of law, the trial court's denial of his motion to suppress cocaine seized as a result of a warrantless search of the defendant's pockets. Because the officer made a lawful full custodial arrest of the defendant and searched the defendant incident to this lawful full custodial arrest, we affirm the trial court's denial of the defendant's motion to suppress. http://www.tba.org/tba_files/TCCA/cunninghame.wpd STATE OF TENNESSEE v. KATHLEEN MALLEY Court:TCCA Attorneys: Leslie I. Ballin, Memphis, Tennessee, for the appellant, Kathleen Malley. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Patience Branham, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Kathleen Malley, entered a guilty plea to theft of over $60,000, a Class B felony, in exchange for an agreed sentence of eight years incarceration. Following a sentencing hearing to determine the manner of service of that sentence, the Defendant was ordered to serve six months in jail followed by twelve years of probation. She was also ordered to pay $100,000 in restitution. In this appeal as of right, the Defendant argues that the trial court erred by refusing to grant her full probation. We find no error. Thus, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/malleyk.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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