August 9, 2001 Volume 7 — Number 146 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 01 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 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 JESSIE M. FREDERICK v. BOWEVIL EXPRESS, INC., et al. Court:TSC - Workers Comp Panel Attorneys: Gregory D. Jordan and L. Beth Williams, Jackson, Tennessee, for the appellant, Bowevil Express, Inc. Michael A. Jaynes and Danny R. Ellis, Jackson, Tennessee, for the appellee, Jessie M. Frederick. 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 insists the award of permanent partial disability benefits based on 25 percent to the left arm is excessive. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/frederickjessie.wpd ALFRED LEE BOWLING v. DOBBS BROTHERS BUICK-PONTIAC, INC., d/b/a DOBBS BROS. BUICK-PONTIAC/MITSUBISHI, INC. Court:TCA Attorneys: Connie Westbrook, Memphis, Tennessee, for the appellant, Alfred Lee Bowling. James Stephen King, Memphis, Tennessee, for the appellee, Dobbs Brothers Buick-Pontiac, Inc., d/b/a Dobbs Bros. Buick-Pontiac/Mitsubishi, Inc. Judge: FARMER First Paragraph: This appeal arises from the trial court's denial of a motion in limine. Employee was fired from his position at Company. At a pre-trial deposition, Manager testified on behalf of Company that Employee was terminated due to Manager's observation of Employee's lack of sales skills. Employee filed a motion seeking to bar testimony of other Company employees during the trial. These employees were to testify on Employee's lack of sales skills. Employee argued that this testimony would be inconsistent with Company's pre-trial deposition that Employee was terminated due to Manager's observation of his lack of sales skills. We affirm. http://www.tba.org/tba_files/TCA/bowlingalfredl.wpd THOMAS C. FARNSWORTH, JR. v. GARY P. FAULKNER, et al. Court:TCA Attorneys: Stuart B. Breakstone, Memphis, Tennessee, for the appellant, Gary P. Faulkner, individually and doing business as Faulkner's Body Shp, Inc., a/ka Gary Faulkner Body Shop, Inc. E. Nicole Trail, Memphis, Tennessee, for the appellee, Thomas C. Farnsworth, Jr. Judge: FARMER First Paragraph: This appeal arises from the trial court's granting of a motion of summary judgment. The court ruled that Shop had violated an Agreement which incorporated in its entirety a previous lease of certain property. As a result, Owner was awarded the repair costs for certain repairs that Shop had been responsible for under the lease. Owner was also awarded attorney's fees and expenses. Shop appealed, arguing that certain material facts were in dispute and thus summary judgment was inappropriate. We affirm in part and reverse in part. http://www.tba.org/tba_files/TCA/farnsworththomasc.wpd IN RE: ESTATE OF GLORIA ELEANOR FRANKLIN Court:TCA Attorneys: Mark A. Cowan, Morristown, Tennessee, for the appellant, W. Jess Waltman. Roy T. Campbell, Jr., Newport, Tennessee, for the appellee, Estate of Gloria Eleanor Franklin, Edward Manning, Administrator. Judge: SUSANO First Paragraph: This is apparently a case of first impression. The appellant, W. Jess Waltman, filed a petition in the trial court seeking to probate a document purporting to be the last will and testament of Gloria Eleanor Franklin ("the decedent"). The will, dated "July 7 93," directs that the appellant and his wife, Terry Waltman, are to receive the decedent's estate "in case I die on my way to & from Jersey." The trial court held that the will was not eligible for probate because it was a conditional will and the specified condition or contingency, i.e., Ms. Franklin's demise "on the way to & from Jersey," had not occurred. We vacate the trial court's judgment and remand for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/franklinge.wpd IN THE MATTER OF: R.L.B., DOB: 8/17/86, J.W.B., DOB: 8/3/88, D.L.B., DOB: 7/23/91, AND J.L.B., DOB: 2/20/93 CHILDREN UNDER 18 YEARS OF AGE Court:TCA Attorneys: Marcus M. Reaves, Jackson, Tennessee, for the appellants, R.B. and M.B. Paul G. Summers, Attorney General and Reporter, Daryl J. Brand, Associate Solicitor General, for the appellee, State of Tennessee, Department of Children's Services. Judge: LILLARD First Paragraph: This case involves the termination of parental rights. The children, four boys, were removed from the custody of their mother and father after reports of domestic violence by the father. While the boys were in the protective custody of the State, allegations surfaced that they had been subjected to sexual abuse by the mother, as well as physical abuse by the father. The trial court terminated the parental rights of mother and father in all four boys, finding willful abandonment and that the conditions leading to removal persisted and were unlikely to abate. On appeal, we affirm, finding that the trial court's decision is supported by clear and convincing evidence. http://www.tba.org/tba_files/TCA/inmatterofrlb.wpd IN RE: ESTATE OF FANNIE MAE JOHNSON, DECEASED Court:TCA Attorneys: Paul A. Robinson, Jr., Memphis, Tennessee, for the appellant, Edna Johnson Wright, Executrix. Kathleen N. Gomes, Memphis, Tennessee, for the appellee, Rebecca Moore. Judge: FARMER First Paragraph: This appeal arises from the trial court's finding that a bank account was part of Decedent's estate and not the property of Executrix. In 1987, Decedent added Executrix to a bank account. Decedent failed to mark the portion of the card signifying that the account was to have rights of survivorship. After Decedent died, Executrix conducted an accounting in which she did not include the account. Beneficiary contested the accounting arguing that account should be part of the estate. Executrix argued that the addition of her name to the account created a presumption that the account's right of survivorship was a gift inter vivos. The trial court found that no presumption existed and that the account was part of the estate. We affirm. http://www.tba.org/tba_files/TCA/johnsonfanniemae.wpd PEARL LYNELL POTTS, Individually And Executor of the Estate of Gordon Ray Potts, Sr., Deceased, v. MARY POTTS MAYFORTH and GORDON RAY POTTS, JR., and CONNECTICUT GENERAL LIFE INSURANCE COMPANY v. ALICE ELIZABETH NELSON Court:TCA Attorneys: Mary E. Potts Mayforth, Kensington, MD., pro se. Gordon R. Potts, Jr., Forsythe, MO., pro se. Kathryn J. Dugger-Edwards, Elizabethton, TN., for Appellee, Pearl Lynell Potts. Reginald E. Keaton, Knoxville, TN., for Appellee, Connecticut General Life Insurance. Judge: FRANKS First Paragraph: The Trial Court entered a Default Judgment against Potts pursuant to Tenn. R. Civ. P. 37.02 and then summary judgment for plaintiffs. On appeal by defendants, we affirm the Judgment of the Trial Court. http://www.tba.org/tba_files/TCA/pottsp.wpd STATE OF TENNESSEE v. PAUL RANDALL FREELAND Court:TCCA Attorneys: Terry J. Leonard, Attorney for Appellant, Paul Randall Freeland. Paul G. Summers, Attorney General, J. Ross Dyer, Assistant Attorney General, G. Robert Radford, District Attorney General, and Eleanor Cahill, Assistant District Attorney General, Attorneys for Appellee, State of Tennessee. Judge: CLARK First Paragraph: The defendant was declared a motor vehicle habitual offender in Benton County Circuit Court. On appeal, he argues that the trial court erred because the first qualifying underlying conviction occurred more than five years before the date the state's petition was filed. Because no statute of limitations applies under the Motor Vehicle Habitual Offenders Act, we affirm the trial court's judgment . http://www.tba.org/tba_files/TCCA/freelandpr.wpd LEON GOINS v. STATE OF TENNESSEE Court:TCCA Attorneys: Thomas E. Weakley, Dyersburg, Tennessee, for the appellant, Leon Goins. Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the denial of post-conviction relief on his conviction for the sale of .5 grams of cocaine, a Schedule II controlled substance. In his pro se petition for post-conviction relief, the petitioner alleged that his trial counsel was ineffective for failing to thoroughly investigate and keep him informed of vital information regarding his case. After the appointment of post-conviction counsel and a hearing on the petition, the court denied the petition for post-conviction relief. The petitioner filed a timely appeal to this court, raising the sole issue of whether the post-conviction court erred in finding that he had effective assistance of trial counsel. Based upon a careful review of the record, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/goinsleon.wpd TERESA DEION SMITH HARRIS v. STATE OF TENNESSEE Court:TCCA Attorneys: Teresa McCaig Marshall, Paris, Tennessee, for the appellant, Teresa Deion Smith Harris. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner was originally convicted by a Henry County jury of first degree felony murder and sentenced to life without the possibility of parole. The conviction was affirmed on direct appeal. The petitioner sought post-conviction relief, which was denied by the post-conviction court. In this appeal, the petitioner contends she is entitled to post-conviction relief based on (1) newly discovered evidence and (2) ineffective assistance of counsel. After a thorough review of the record, we conclude that the post-conviction court correctly denied post-conviction relief. http://www.tba.org/tba_files/TCCA/harristds.wpd STATE OF TENNESSEE v. GLENDA EVA TILLEY Court:TCCA Attorneys: Nat H. Thomas, Kingsport, Tennessee; and Cary Taylor, Kingsport, Tennessee for the Appellant, Glenda Eva Tilley. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and J. Lewis Combs, Assistant District Attorney General for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant takes issue with the trial court's imposition of split confinement for her conviction of theft over $10,000. Based upon our review, we affirm the sentence imposed. http://www.tba.org/tba_files/TCCA/tilleyge.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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