August 28, 2001 Volume 7 — Number 158 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 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 08 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 RYDER DRIVER LEASING, INC. v. BRUCE WILSON et al. Court:TSC - Workers Comp Panel Attorneys: Daniel C. Todd, Nashville, Tennessee, for the appellant, Ryder Driver Leasing, Inc. William C. Cremins, Knoxville, Tennessee, for the appellee, Bruce Wilson. Judge: BYERS First Paragraph: This workers' 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 found the plaintiff had a compensable psychiatric injury. We affirm the findings of the trial court. http://www.tba.org/tba_files/TSC_WCP/ryder.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS http://www.tba.org/tba_files/TSC_Rules/certlist_0827.wpd IN THE MATTER OF: KATHERINE C., A Child Under 18 Years of Age STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. MARIE STANLEY Court:TCA Attorneys: David W. Camp, Jackson, for Appellant Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Assistant Attorney General, Nashville, for Appellee Judge: HIGHERS First Paragraph: The trial court terminated the parental rights of Mother upon a finding that the grounds for termination were proven by clear and convincing evidence and that termination was in the minor child's best interests. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/katherinec.wpd KEVIN JULIAN JOHNSON v. DONNA COLE JOHNSON Court:TCA Attorneys: John M. Cannon, Goodlettsville, Tennessee, for the appellant, Donna Cole Johnson. William Donnell Young, Jr. and Thomas F. Bloom, Nashville, Tennessee, for the appellee, Kevin Julian Johnson. Judge: CAIN First Paragraph: This appeal involves the dissolution of a ten year marriage. The trial court awarded the husband a divorce after concluding that the wife was guilty of inappropriate marital conduct. The trial court granted custody of the parties' three minor children to the father and refused the mother visitation rights, and held her in criminal contempt of court. The wife now appeals. We have determined that the trial court properly awarded custody to the father but the trial court erred in refusing the mother visitation, and in convicting her of criminal contempt. Accordingly, we affirm in part and reverse in part. http://www.tba.org/tba_files/TCA/johnsonkevin2wbc.wpd BOBBIE F. MIXON v. GREAT SOUTHERN LIFE INSURANCE COMPANY, et al. Court:TCA Attorneys: Mark Ledbetter, Dan T. Bing, Memphis, Tennessee, for the appellant, Bobbie F. Mixon. Gregory W. O'Neal, Memphis, Tennessee, for the appellee, Great Southern Life Insurance Company. Judge: LILLARD First Paragraph: This case involves the voiding of a life insurance policy. The insurer refused to pay because the insured failed to disclose in his application the name of a physician who had treated him for high blood pressure. The beneficiary under the policy filed suit against the insurer, asserting that the failure to disclose was not a misrepresentation, and that the policy could not be voided because the form requesting the information was not attached to the policy, as required by Tennessee Code Annotated S 56-7-2307(4) (2000). The trial court granted summary judgment to the insurer. On appeal, we affirm, finding that the failure to disclose was a misrepresentation that increased the risk of loss to the insurer. http://www.tba.org/tba_files/TCA/mixonbf.wpd IN THE MATTER OF: T. L. P. & A. V. H., Children Under 18 Years of Age GWENDOLYN HENDERSON v. STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES Court:TCA Attorneys: Gregory S. Gallagher, Memphis, for Appellant Paul G. Summers, Attorney General and Reporter; Elizabeth C. Driver, Assistant Attorney General, Nashville, for Appellee Judge: HIGHERS First Paragraph: This is a suit for the termination of parental rights. The Appellee filed a petition to terminate the Appellant's parental rights to two of her children. Following a hearing, the Juvenile Court of Memphis and Shelby County entered an order terminating the Appellant's parental rights. The Appellant appeals the trial court's order terminating her parental rights. For the reasons stated herein, we affirm the trial court's decision. http://www.tba.org/tba_files/TCA/princetambaral.wpd SOUTHWEST WILLIAMSON COUNTY COMMUNITY ASS'N, et al. v. J. BRUCE SALTSMAN, SR., Commissioner, Tennessee Department of Transportation Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michael W. Catalano, Associate Solicitor General; and Phyllis A. Childs, Assistant Attorney General, for the appellant, J. Bruce Saltsman, Sr., Commissioner, Tennessee Department of Transportation. David E. Lemke, Nashville, Tennessee, for the appellees, Southwest Williamson County Community Association, Inc., Micaro Properties, Billie Rutledge, Dorothy Beard, and William B. Caldwell. Julian L. Bibb and Robert C. Hannon, Nashville, Tennessee, for the appellee-intervenor, Heritage Foundation of Franklin and Williamson County, Tennessee. William L. Penny, Lyle Reid, and Jonathan D. Rose, Nashville, Tennessee, for amicus curiae, Tennessee Road Builders Association. Judge: SUSANO First Paragraph: Being dissatisfied with the State's concept of, and planning for, the extension of State Route 840 through southwest Williamson County, three residents in the County, two nonprofit corporations, and a partnership that owns property in the County, sued J. Bruce Saltsman, Sr. ("the Commissioner"), in his official capacity as Commissioner of the Tennessee Department of Transportation ("TDOT"). Following a bench trial, the court below entered a final judgment including (1) a writ of mandamus ordering the Commissioner to perform a number of "duties" in connection with Route 840; and (2) a permanent injunction enjoining him from moving forward with the planning and construction of Route 840 through Williamson County until he complies with the trial court's order. The Commissioner appeals. In addition to other bases for reversal, he asserts that the trial court lacked subject matter jurisdiction of this controversy. We agree with the appellant that the trial court was without subject matter jurisdiction. Accordingly, we reverse the judgment below in its entirety and dismiss the petition. http://www.tba.org/tba_files/TCA/southwestwmco.wpd RANDY DALE STORY v. CHASTITY DAWN (BATTS) SHELTON Court:TCA Attorneys: Susan H. Moseley, Nashville, Tennessee, for Appellant, Chastity Dawn (Batts) Shelton. Judge: FRANKS First Paragraph: The Trial Judge ordered a surname change of two minors to the father's surname, without hearing evidence on the issue. On appeal, we vacate and remand for an evidentiary trial. http://www.tba.org/tba_files/TCA/storyr.wpd STATE OF TENNESSEE EX REL DEBORAH D. WARREN v. JAMES R. FERGUSON Court:TCA Attorneys: James R. Ferguson, Tiptonville, pro se Paul G. Summers, Attorney General and Reporter, Kim Beals, Assistant Attorney General, Nashville, for Appellee Judge: HIGHERS First Paragraph: This appeal involves a complaint to establish parentage and set child support. The court below ordered genetic testing, which proved that James R. Ferguson is the natural father of the children at issue. The court also entered a judgment of $8,623.00 for retroactive child support, $280.00 for the cost of genetic testing, and the court reserved the issue of current support until Mr. Ferguson is released from prison. We vacate the trial court's final order based on our conclusion that the trial court erred in failing to rule on Mr. Ferguson's Motion for the Appointment of Counsel, or alternatively, his request that the matter be held in abeyance until he is released from incarceration. http://www.tba.org/tba_files/TCA/warrendeborahd.wpd SUSAN WEISS, et al. v. STATE FARM FIRE & CASUALTY COMPANY, et al. Court:TCA Attorneys: R. Douglas Hanson, Memphis, Tennessee, for the appellants, Susan Weiss and Joseph L. Weiss. George T. Lewis, III, and Lori Hackleman Patterson, Memphis, Tennessee, for the appellees, State Farm Fire & Casualty Co. and Larry O. Brooks. Judge: FARMER First Paragraph: The Weisses procured supplemental insurance from State Farm through its agent, Mr. Brooks. In procuring such insurance, Mr. Weiss rejected uninsured/underinsured motorist coverage. Mrs. Weiss was involved in an automobile accident wherein she sustained damages exceeding the amount covered by her insurance policy. As the other driver involved in the accident was either uninsured or underinsured, the Weisses sought recovery from State Farm. State Farm denied the claim, determining that the Weisses did not have coverage under their umbrella policy. The Weisses brought an action against State Farm and Mr. Brooks. State Farm and Mr. Brooks filed a motion for summary judgment, which the trial court granted. We affirm. http://www.tba.org/tba_files/TCA/weisssusan.wpd STATE OF TENNESSEE v. CHARLES R. BLACKSTOCK Court:TCCA Attorneys: C. Leland Davis and David W. Wallace, Chattanooga, Tennessee, attorneys for the appellant, Charles R. Blackstock. Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General; and Kelli L. Black and Rodney C. Strong, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Charles R. Blackstock, pled guilty to especially aggravated kidnapping and two counts of rape of a child. See Tenn. Code Ann. SS 39-13-305, 39-13-522. The trial court imposed 25-year sentences on each offense. The sentences were ordered to be served consecutively, for an effective sentence of 75 years. The sentence for especially aggravated kidnapping and the consecutive sentencing order are affirmed. Because the trial court erroneously applied certain enhancement factors to each of the sentences for rape of a child, the terms are modified to 23 years. http://www.tba.org/tba_files/TCCA/blackstock.wpd STATE OF TENNESSEE v. GEORGE E. RATLIFF Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee (on appeal); and David F. Bautista, District Public Defender; Jeffrey C. Kelly, Assistant Public Defender; and Deborah Huskins, Assistant Public Defender, Johnson City, Tennessee (at trial), for the appellant, George E. Ratliff. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; Steve Finney, Assistant District Attorney General; Lisa Rice, Assistant District Attorney General; Victor Vaughn, Assistant District Attorney General; and Janet Hardin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The defendant, George E. Ratliff, was convicted by a jury of rape of a child. In this consolidated appeal, Defendant alleges various errors by the trial court, challenges his sentence, and appeals the dismissal of his petition for writ of error coram nobis on the ground of untimely filing. After a review of the record and applicable law, we reverse the trial court's summary dismissal of the petition for writ of error coram nobis based on the recent decision of our supreme court in Workman v. State, 41 S.W.3d 100 (Tenn. 2001). We remand this matter to the trial court for a hearing on the merits of the petition for writ of error coram nobis. Pursuant to State v. Mixon, 983 S.W.2d 661 (Tenn. 1999), appellate proceedings on Defendant's appeal as of right from his conviction are stayed, pending the trial court's ruling on the error coram nobis petition. http://www.tba.org/tba_files/TCCA/ratliffgeorgee.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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