July 26, 2001 Volume 7 — Number 136 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 13 New Opinion(s) from the Tennessee Court of Appeals 02 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 PEGGY BOLES v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Peggy Boles, Pro Se. Paul G. Summers, Attorney General, Michael Moore, Solicitor General, Pamela S. Lorch, Assistant Attorney General, for the appellee, Tennessee Department of Correction. Judge: COTTRELL First Paragraph: The wife of an incarcerated person brought an action seeking to have a policy of the Department of Correction declared invalid. The policy involved a visitor's responsibility to control children while visiting an inmate in a state prison. The trial court dismissed the petition. We affirm. http://www.tba.org/tba_files/TCA/bolesp.wpd BRIAN BOYD v. BILL BERRIER, et al. Court:TCA Attorneys: John W. Cleveland, Sweetwater, Tennessee, for the appellant, Brian Boyd. Sharon Frankenberg, Knoxville, Tennessee, for the appellee, Bill Berrier. James H. Harris, Loudon, Tennessee, for the appellees, Weston Tucker and Mary Louise Tucker. Judge: GODDARD First Paragraph: The Plaintiff, Brian Boyd, agreed to purchase three (3) mobile home lots on an installment basis. After nominal down payments he made monthly payments for several months, during which time he received rental income. The contracts provided for forfeiture in the event Mr. Boyd failed to make two (2) consecutive payments or failed to pay the taxes. Mr. Boyd missed four payments, and failed to pay the taxes. He was ordered to quit the property in a detainer action, which was consolidated with a complaint in Chancery for damages for the asserted violation by the assignee of the seller of the Consumer Protection Act. The complaint was dismissed. We affirm. http://www.tba.org/tba_files/TCA/boydbri.wpd COUNTY RESIDENTS AGAINST SPEEDWAY HAVOC (C.R.A.S.H.), et al. v. WILSON COUNTY COMMISSION, et al. Court:TCA Attorneys: Frank M. Fly, Murfreesboro, Tennessee, for the appellants, C.R.A.S.H., and James Nay, John Hurt, and Richard Bradley. Michael R. Jennings, Lebanon, Tennessee, for the appellees, Wilson County Commission, Wilson County Planning Commission, Wilson County Board of Zoning Appeals, Robert Dedman, Jerry McPeak, and W.J. McCluskey. Gregory S. Gill and Alan Poindexter, Lebanon, Tennessee, for the appellee, Nashville Speedway U.S.A., Inc. Judge: CANTRELL First Paragraph: Opponents of a proposed motor speedway in Wilson County filed a petition which challenged on numerous grounds the zoning change that made construction of the speedway possible. The trial court dismissed the complaint, finding that the county government had acted in accordance with the applicable laws. We affirm. http://www.tba.org/tba_files/TCA/crash.wpd THOMAS FULBRIGHT v. BEVANS RAMSEY FULBRIGHT Court:TCA Attorneys: John P. Konvalinka and Mathew D. Brownfield, Chattanooga, Tennessee, for the Appellant Thomas Fulbright. Michael R. Campbell, Chattanooga, Tennessee, for the Appellee Bevans Ramsey Fulbright. Judge: SWINEY First Paragraph: Thomas Fulbright ("Husband") filed for divorce alleging inappropriate marital conduct on the part of Bevans Ramsey Fulbright ("Wife"). Wife filed a counter-claim seeking a divorce on the same basis. The Trial Court granted both parties a divorce, divided the marital property, awarded Wife rehabilitative alimony, and granted primary physical custody of the three minor children to Wife. Husband appeals all of these determinations, and Wife appeals the Trial Court's refusal to award her attorney fees. We affirm as modified. http://www.tba.org/tba_files/TCA/fulbrightt.wpd KARRIE BETH GENTRY v. BRYAN KEITH GENTRY Court:TCA Attorneys: Marty M. Stone, Chattanooga, Tennessee, for the appellant, Bryan Keith Gentry. Mark E. Tribble, Signal Mountain, Tennessee, for the appellee, Karrie Beth Gentry. Judge: SUSANO First Paragraph: This is a divorce case. Karrie Beth Gentry ("Mother") was awarded primary residential custody of the parties' two minor children, and Bryan Keith Gentry ("Father") was ordered to pay child support of $2,100 per month. Father appeals, arguing that the trial court erred in imputing income to him for the purpose of determining child support. Because we find that the trial court properly calculated Father's income based upon what it found to be the only credible evidence presented at trial, we affirm. http://www.tba.org/tba_files/TCA/gentrykb.wpd GULF INSURANCE CO. v. CONSTRUX, INC., et al. Court:TCA Attorneys: James Robert Buckner, Alan Daniel Hall, Richard Christopher Rose, Chattanooga, Tennessee, for the appellant, Construx, Inc., et al. Richard McCallister Smith, Nashville, Tennessee, for the appellee, Gulf Insurance Co. Judge: COTTRELL First Paragraph: This is an appeal from the grant of Plaintiff's motion for summary judgment. The case arises from a construction contract in which Gulf Insurance Co. provided Construx, Inc. the required payment and performance bonds, and in return obtained an indemnity contract with the individual Defendants as indemnitors. Additionally, a Settlement Agreement was executed in connection with the permanent loan financing and Gulf settled the subcontractor liens with the remaining proceeds of the construction loan. After payments were made, Gulf sued for indemnity under the indemnity contract for payments made. Construx asserted that the Settlement Agreement barred Plaintiff's claims or, alternatively, Gulf did not act reasonably and in good faith in settling the claims and is not entitled to recovery. Summary judgment was granted to Gulf and Construx appealed. For the reasons below, we reverse and remand finding that there are genuine issues of fact, making summary judgment inappropriate. http://www.tba.org/tba_files/TCA/gulfinsur.wpd INVESTORS GROUP I, LTD., a Tennessee Limited Partnership, ROGER CAMERON, General Partner v. KNOXVILLE'S COMMUNITY DEVELOPMENT CORPORATION Court:TCA Attorneys: Steve Merritt, Maryville, Tennessee, for the appellant, Investors Group I, Ltd., a Tennessee Limited Partnership, Roger Cameron, General Partner. Carlyle Urello, Knoxville, Tennessee, for the appellee, Knoxville's Community Development Corporation. Judge: INMAN First Paragraph: The complaint seeking damages for breach of contract was signed and filed by a general partner of Investors Group I, Ltd., a limited partnership. The Chancellor dismissed the case, holding the complaint was void because a limited partnership is a legal entity, and can neither appear pro se nor by a general partner who is not a licensed attorney. We affirm. http://www.tba.org/tba_files/TCA/investors.wpd RONALD McKINNEY v. STATE OF TENNESSEE, et al. Court:TCA Attorneys: Ronald McKinney, Pro Se, Tiptonville, Tennessee. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Rae Oliver, Assistant Attorney General, for the appellees, State of Tennessee, et. al. Judge: COTTRELL First Paragraph: An inmate of the Tennessee Department of Correction sought a declaratory judgment that the Department had incorrectly calculated his sentence. The trial court dismissed the petition, finding no improper calculation. We affirm. http://www.tba.org/tba_files/TCA/mckinneyr.wpd STEFAN OLARU v. JOHN COOPER, et al. Court:TCA Attorneys: Steven D. Brown, Chattanooga, Tennessee, for the appellant, Stefan Olaru. Steven W. Keyt, Chattanooga, Tennessee, for the appellee, John Cooper. Odile F. Spurlock, Chattanooga, Tennessee, for the appellee, Roberts Express, Inc. Judge: SUSANO First Paragraph: This case arises out of an automobile accident. The plaintiff, Stefan Olaru, brought a personal injury action against John Cooper, the driver of the other vehicle involved in the accident. The plaintiff also sued Roberts Express, Inc., from whom the plaintiff had leased the 1995 GMC van involved in the accident. Roberts was sued for medical expenses, lost wages, and disability benefits under Personal Injury Protection ("PIP") insurance coverage provided to him by Roberts. By way of a special verdict, the jury found the plaintiff 60% at fault for the accident; assessed Cooper with the remaining 40% of fault; and determined that the plaintiff had not suffered any injuries as a result of the accident, thereby precluding the plaintiff's recovery under his PIP insurance coverage. The plaintiff appeals, arguing one issue, i.e., that the jury's verdict is contrary to the evidence. We affirm. http://www.tba.org/tba_files/TCA/olarus.wpd KATHY PHILLIPS, et al. v. SCOTTY REDMON, et al. Court:TCA Attorneys: Jerry Gonzalez, Lebanon, Tennessee, for the Appellant, Justin Redmon. Michael Ray Jennings, Lebanon, Tennessee, for the Appellee, Kathy Phillips. Judge: GODDARD First Paragraph: In this appeal from the Circuit Court for Wilson County the Appellant, Justin Redmon, a minor child, through his guardian ad litem, questions whether the Trial Court erred in granting a petition filed by the Appellee, Kathy Phillips, to change custody from Justin's natural father, Scotty Redmon, to Ms. Phillips, Mr. Redmon's sister. We affirm the judgment of the Trial Court and remand for collection of costs below. http://www.tba.org/tba_files/TCA/phillipskat.wpd JOHN PAUL SEALS v. JAMES BOWLEN, WARDEN, et al. Court:TCA Attorneys: John Paul Seals, Pro Se, appellant. Arthur Crownover, II, Nashville, Tennessee, for the appellees, James Bowlen, Warden, Southeastern Tennessee State Regional Facility Disciplinary Board, and the Tennessee Department of Correction. Judge: COTTRELL First Paragraph: Petitioner, a state inmate, filed the underlying pro se petition for a writ of certiorari to challenge the result of a disciplinary proceeding against him. The trial court dismissed the suit for failure to state a claim. We reverse the dismissal of all parties except the Department of Correction and affirm the dismissal for failure to state a claim. http://www.tba.org/tba_files/TCA/sealsj.wpd CHRISTINA MAE STROUD (READ) v. JIMMY RAY STROUD Court:TCA Attorneys: Connie Reguli, Nashville, Tennessee, for the appellant, Christina Mae Stroud (Read). Cathy Carpenter Speers, W. Gary Blackburn, Malcolm L. McCune, Nashville, Tennessee, for the appellee, Jimmy Ray Stroud. Judge: COTTRELL First Paragraph: In this post-divorce case, the mother appeals the trial court's refusal to overturn a 1995 order awarding the father a judgment against her and sentencing her to ten days in jail for contempt of court. We affirm the trial court. http://www.tba.org/tba_files/TCA/stroudc.wpd CLIFFORD L. TAYLOR v. STATE OF TENNESSEE, et al. Court:TCA Attorneys: Clifford L. Taylor, pro se, Tiptonville, Tennessee. Paul G. Summers, Attorney General, Michael E. Moore, Solicitor General, Rae Oliver, Assistant Attorney General, for the appellees, State of Tennessee, et al. Judge: COTTRELL First Paragraph: An inmate of the Tennessee Department of Correction sought a declaratory judgment that the Department had incorrectly calculated his sentence. The trial court dismissed the petition, finding no improper calculation. We affirm. http://www.tba.org/tba_files/TCA/taylorc.wpd STATE OF TENNESSEE v. RONALD W. BYRD Court:TCCA Attorneys: Donald E. Spurrell (appeal), Johnson City, Tennessee; and Leslie W. Bailey, Jr. (trial), Kingsport, Tennessee, for the appellant, Ronald W. Byrd. Paul G. Summers, Attorney General and Reporter; Patricia Kussman, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Robert H. Montgomery and Barry P. Staubus, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Ronald W. Byrd, was convicted in the Sullivan County Criminal Court of attempt to commit aggravated kidnapping, aggravated criminal trespass, and resisting arrest. The trial court sentenced the appellant to a total effective sentence of six years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises the following issues for our review: (1) whether the trial court should have permitted the jury to consider the issue of whether the appellant's conduct was fairly motivated by his desire to make a citizen's arrest; and (2) whether the evidence is sufficient as a matter of law to sustain a conviction of attempted aggravated kidnapping. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/byrdronw.wpd STATE OF TENNESSEE v. PHILLIP MICHAEL CISSON Court:TCCA Attorneys: Ann D. Coria, Assistant Public Defender, Clinton, Tennessee, for the appellant, Phillip Michael Cisson. Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General; and Jan Hicks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Phillip Michael Cisson, entered pleas of guilt on two counts of burglary and two counts of theft over $1,000. The plea agreement provided for concurrent two-year sentences on each conviction. The single issue presented for review is whether the trial court erroneously denied probation. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/cissonphillip.wpd PLEASE FORWARD THIS E-MAIL! 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