September 5, 2001 Volume 7 — Number 162 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 04 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 04 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 06 New Opinion(s) from the Tennessee Court of Appeals 06 New Opinion(s) from the Tennessee Court of Criminal Appeals 03 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 (CORRECTED VERSION POSTED SEPT. 12 #167) CITY OF CHATTANOOGA v. KEVIN DAVIS AND FRANK BARRETT v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY Court:TSC Attorneys: Jerry H. Summers, Chattanooga, Tennessee, for the appellant, Kevin Davis. Kenneth O. Fritz, Chattanooga, Tennessee, for the appellee, City of Chattanooga. John E. Herbison, Nashville, Tennessee, for the appellant, Frank Barrett. Karl F. Dean and John L. Kennedy, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Peter M. Coughlan, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. James W. Kirby, Nashville, Tennessee, for Amicus Curiae, Tennessee District Attorneys General Conference. Judge: BARKER First Paragraph: The primary issue presented by these consolidated cases is whether Article VI, section 14 of the Tennessee Constitution, which prohibits the laying of fines in excess of fifty dollars unless assessed by a jury, applies to proceedings for the violation of a municipal ordinance. We hold that Article VI, section 14 does apply to such proceedings when either the intended purpose or the actual purpose or effect of the monetary assessment is to serve as a punitive measure. To the extent that O'Dell v. City of Knoxville, 54 Tenn. App. 59, 388 S.W.2d 150 (1964), would compel a contrary conclusion, it is expressly overruled. We further hold that the assessment imposed by the Chattanooga City Court in City of Chattanooga v. Davis was punitive in its intended purpose and therefore subject to constitutional limitation. As for the assessments imposed in Barrett v. Metropolitan Government, we hold that the actual purpose and effect of all these sanctions were to impose punishment for ordinance violations. Therefore, the judgment of the Court of Appeals is affirmed as modified and explained below in Davis's case, and the judgment of the Court of Appeals is reversed in Barrett's case. Because no court, other than one of general jurisdiction, has been granted the authority to empanel a jury to determine facts or to impose punishment, we reduce each of the unlawful fines imposed in these cases to fifty dollars, the maximum assessment allowed under such circumstances by Article VI, section 14. With regard to the additional issues raised in City of Chattanooga v. Davis, we hold that Tennessee Code Annotated section 6-54-306 does not facially violate Article VI, section 14. With regard to the allegations that Tennessee Code Annotated sections 6-54-306 and 55-10-307 violate the Class Legislation Clause of Article XI, section 8, we dismiss the challenge to section 6-54-306 as moot. As to section 55-10-307, we hold that this statute does not violate Article XI, section 8 for the sole reasons that a distinction is made between municipalities and unincorporated areas of the state or that different punishments may be imposed by substantially similar or identical offenses. Finally, we hold that Davis lacks legal standing to challenge the policies and practices of the City of Chattanooga that arguably infringe upon the District Attorney General's constitutional and statutory authority in Hamilton County. The judgment of the Court of Appeals on these issues is affirmed as modified herein. (Corrected version posted Sept. 12 #167) http://www.tba.org/tba_files/TSC/davisbarrett2.wpd JAMES FRISTOE v. CITIZENS UTILITIES COMPANY, et al. Court:TSC - Workers Comp Panel Attorneys: Hal W. Wilkins, Nashville, Tennessee, for the appellants, Citizens Utilities Company and CNA Insurance Company. James D. Madewell, Cookeville, Tennessee, for the appellee, James Fristoe. Judge: WEATHERFORD 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 defendants appeal the judgment of the trial court awarding the employee, a telephone lineman, 95% vocational disability for injuries he sustained falling off a telephone pole. The defendants assert that the trial court erred in determining Mr. Fristoe's vocational disability rating by failing to give appropriate consideration to the findings of the treating physician in this case. For the reasons set out in this opinion, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/fristoejames.wpd UNITED STATES PIPE & FOUNDRY COMPANY v. STEVEN L. CAMP Court:TSC - Workers Comp Panel Attorneys: Thomas L. Wyatt, of Chattanooga, Tennessee, for the Appellant, Steven Camp. J. Bartlett Quinn and Charles D. Lawson, of Chattanooga, Tennessee, for Appellee, United States Pipe & Foundry Company. Judge: THAYER 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. The trial court found the employee had sustained a temporary injury to his back and awarded medical benefits to treat his symptoms. On appeal the employee insists his injury was of a permanent nature. Judgment of the trial court is affirmed. http://www.tba.org/tba_files/TSC_WCP/pipecamp.wpd LORI ANN PROSSER v. BEDFORD COUNTY BOARD OF EDUCATION Court:TSC - Workers Comp Panel Attorneys: Kent E. Krause and Gordon C. Aulgur, Nashville, Tennessee, for the appellant, Bedford County Board of Education. Andrew C. Rambo, Shelbyville, Tennessee, for the appellee, Lori Ann Prosser. 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, Bedford County Board of Education, insists (1) the trial court erred in finding the employee provided the employer with proper notice of her injury, (2) the award of permanent partial disability benefits based on 42 percent to the body as a whole is excessive, (3) the trial court erred in awarding temporary total disability benefits for the period of April 4, 1996 through September 4, 1998, for a total of 129 weeks, (4) the trial court erred in ordering the employer to be responsible for the bills of non-approved physicians, and (5) the trial court erred in ordering the employer to reimburse the carriers who already partially paid the medical bills, even though they were not parties to the case. As discussed below, the panel has concluded the award of medical benefits to non- parties should be vacated, the award of temporary total disability benefits modified and the judgment otherwise affirmed. http://www.tba.org/tba_files/TSC_WCP/prosserloriann.wpd RONALD SCOTT REVIS v. ROANE COUNTY, TENNESSEE, et al. Court:TSC - Workers Comp Panel Attorneys: Rebecca L. Hicks, Dayton, Tennessee, for the Appellant, Ronald Scott Revis. Michael K. Atkins, Knoxville, Tennessee, for the Appellees, Roane County, Tennessee, and Roane County Emergency Medical Services. Judge: THAYER 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. The trial court dismissed the complaint finding the injury did not arise out of and in the course of employment. On appeal it was determined the injury arose out of employment but did not occur in the course of employment. Judgment of the trial court is affirmed. http://www.tba.org/tba_files/TSC_WCP/revis.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0904.wpd IN RE: AMENDMENTS TO SUPREME COURT RULE 15, REIMBURSEMENT OF COSTS IN MENTAL HEALTH PROCEEDINGS, AND SUPREME COURT RULE 16, APPOINTMENT AND COMPENSATION OF COUNSEL FOR INDIGENT PERSONS IN PAROLE REVOCATION HEARINGS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/rule15_16_ord.wpd IN RE: AMENDMENT TO SUPREME COURT RULE 31, REGARDING ALTERNATIVE DISPUTE RESOLUTION Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/rule31_ord.wpd IN RE: ORDER AMENDING PROVISIONAL RULE 37, RULES OF THE SUPREME COURT OF TENNESSEE WORKERS' COMPENSATION APPELLATE MEDIATION Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/rule_37amd_ord.wpd ARTHUR W. ANDERSON, SR. and MARY JEANETTE C. ANDERSON v. JOHN P. HOWSER M.D., P.A. and DR. JOHN P. HOWSER , Individually Court:TCA Attorneys: Warner Hodges, III, Germantown, Tennessee, for the appellants, Arthur W. Anderson, Sr. and Mary Jeanette C. Anderson. William W. Dunlap, Jr., Memphis, Tennessee, for the appellees, John P. Howser, M.D., P.A. and Dr. John P. Howser, Individually. Judge: First Paragraph: This is a medical malpractice case. The defendants filed a motion for summary judgment, supported by an affidavit from the defendant physician. The plaintiffs filed the opposing affidavit of an expert physician. When the defendants attempted to depose the plaintiffs' expert, they were informed that he would not be testifying at trial. However, the plaintiffs' expert's affidavit was never withdrawn from the record, nor was his testimony recanted. The trial court gave the plaintiffs additional time to secure an expert for trial. The plaintiffs failed to secure an expert within the time period and filed a notice of voluntary non-suit. The trial court granted the defendants' motion for summary judgment, holding that the plaintiffs' response to the motion for summary judgment must be supported by the affidavit of an expert who is expected to testify at trial. The plaintiffs appealed. We affirm. Where the plaintiff submits the affidavit of an expert in response to a motion for summary judgment, and it is undisputed that the expert will not testify for trial, the plaintiff has not demonstrated that he has a justiciable claim warranting a trial, and the granting of summary judgment is appropriate. http://www.tba.org/tba_files/TCA/andersonaw.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 CATHERINE DEAN JACKSON v. BRUCE LANE JACKSON Court:TCA Attorneys: John P. Konvalinka and Mathew D. Brownfield, Chattanooga, Tennessee, for the Appellant, Bruce Lane Jackson. Grace E. Daniell, Chattanooga, Tennessee, for the Appellee, Catherine Dean Jackson. Judge: SWINEY First Paragraph: Catherine Dean Jackson ("Plaintiff") filed a Complaint for divorce against her husband, Bruce Lane Jackson ("Defendant"). The parties entered a stipulation, which was approved by the Trial Court, in which they agreed both parties were entitled to a divorce and agreed that Plaintiff be granted custody of their minor child. The parties, however, did not agree on the remaining issues of alimony and the division of marital property and liabilities. Over approximately four years, the Trial Court referred these issues to a Special Master on three occasions. Upon each referral by the Trial Court, the Special Master held a hearing in which he heard arguments and, during the first two hearings, heard testimony from the parties and witnesses. After each hearing, the Special Master filed his report, but did not file a transcript of the hearing with the report as required by Tenn. R. Civ. P. 53.04(1). Among other findings, the Special Master recommended that Plaintiff receive "rehabilitative alimony for life . . . " in the amount of $1,000 per month and that Defendant pay the parties' entire 1994 tax liability. With the exception of modifying the Special Master's alimony recommendation to alimony in futuro, the Trial Court adopted the Special Master's recommendations which precipitated Defendant's appeal. Due to the Special Master's failure to comply with Tenn. R. Civ. P. 53.04(1), we vacate the portion of the the Trial Court's judgment relative to alimony and the 1994 tax liability, affirm the remainder of the judgment, and remand. http://www.tba.org/tba_files/TCA/jacksonbl.wpd EMANUEL LEWIS, A Minor, by his Mother and Next Friend, LONNIE DAVIS LEWIS, and LONNIE DAVIS LEWIS, Individually v. DR. TODD BROOKS, DR. MICHAEL WASHINGTON, METHODIST HOSPITALS OF MEMPHIS and METHODIST HEALTH SYSTEMS, INC. v. DR. DWIGHT MOORE AND DR. J. K. LAWRENCE Court:TCA Attorneys: L. Anthony Deal, Memphis, for Appellant Jerry E. Mitchell, John H. Dotson, Memphis, for Appellees Judge: HIGHERS First Paragraph: This appeal involves a claim of medical malpractice. The plaintiff's minor child suffered brain damage during delivery. The only remaining defendants, Dr. Moore and Dr. Lawrence, moved for summary judgment, which the trial court granted. Plaintiff appeals. For the following reasons, we affirm the trial court's grant of summary judgment to defendants. http://www.tba.org/tba_files/TCA/lewisemanuel.wpd THOMAS LEE SMITH, Individually and as Administrator of the Estates of MARGARETTE WILKERSON SMITH, et al. v. ARTHUR JOHNSON, et al. Court:TCA Attorneys: Clyde W. Keenan, Memphis, Tennessee, for the appellants, Thomas Lee Smith and Courtney Danielle Smith. Laurice E. Smith, Memphis, Tennessee, for the appellee Arthur Johnson. John I. Houseal, Jr. and C. Wesley Fowler, Memphis, Tennessee, for the appellee Lehman-Roberts Company. John Barry Burgess, Memphis, Tennessee, for the appellee Jeff Henning. Judge: LILLARD First Paragraph: This is a wrongful death case. A car crossed the center line and collided with a dump truck, causing the dump truck to strike and kill three pedestrians, including the plaintiff's wife and son. The plaintiff sued the driver of the car, the driver of the dump truck, and the company for which the dump truck driver was hauling asphalt. The trial court granted summary judgment in favor of the company, finding that the truck driver was an independent contractor. At trial, the jury found that the driver of the car was 100% at fault for the accident, and that the truck driver bore no fault in the accident. The plaintiffs did not move for a new trial. The plaintiff filed a notice of appeal. We affirm the trial court's grant of summary judgment to the company, finding that the liability of the company would be derived from the fault of the truck driver in the operation or maintenance of his dump truck, and that the company could not be held liable where the jury found that the truck driver bore no fault in the accident. http://www.tba.org/tba_files/TCA/smiththos.wpd RUTH N. WILSON v. LANDON HAYNES SNAPP, JR., et al. Court:TCA Attorneys: Thomas A. Snapp, Knoxville, Tennessee, for the Appellants, Landon Haynes Snapp, Jr., and Gene L. Snapp. William W. Davis, Jr., Knoxville, Tennessee, for the Intervening Appellees, James E. Willis and Neil Leonard. Judge: GODDARD First Paragraph: In this suit the Trial Court held a purported deed from Ruth N. Wilson to Landon Haynes Snapp, Jr., and Gene L. Snapp was champertous and void. The Snapps appeal, contending this holding was in error. We affirm. http://www.tba.org/tba_files/TCA/wilsonruth.wpd STATE OF TENNESSEE v. BILLY E. BILES Court:TCCA Attorneys: Quentin S. Horton, McMinnville, Tennessee (on appeal) and Russell L. Leonard, Cowan, Tennessee (at trial) for the appellant, Billy E. Biles. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Clement Dale Potter, District Attorney General; Robert W. Boyd, Assistant District Attorney General, for the appellant, State of Tennessee. Judge: WOODALL First Paragraph: The Defendant, Billy E. Biles, entered a guilty plea to one count of possession with intent to sell a schedule II controlled substance (0.5 grams of cocaine) and one count of simple possession of marijuana in the Circuit Court of Warren County in case #F-7245. The Defendant received an effective sentence of eight (8) years, and that sentence was ordered to run concurrently with Defendant's sentences in case #F-7289 and #F-7317. The Department of Correction placed him in the boot camp program for four months, and then, effective July 3, 1997, the Defendant was placed on probation for a term of seven years and nineteen days. Pursuant to Tenn. Code Ann. S 40-20-206, the Tennessee Department of Correction issued a Certificate of Probation to the Defendant. On October 3, 1997, Defendant's probation officer filed a petition to revoke Defendant's probation and to issue a warrant for his arrest. Following a subsequent hearing, the trial court revoked Defendant's probation, and Defendant challenges that revocation in this appeal. After a review of the record, we affirm the judgment of the trial court, revoking probation. However, we remand to the trial court to correct a clerical error in the judgment of Defendant's conviction in Count I of Case #F-7245. http://www.tba.org/tba_files/TCCA/bilesbillye.wpd GEORGE D. FITZPATRICK v. STATE OF TENNESSEE Court:TCCA Attorneys: R. Kirkland Moser, Nashville, Tennessee, for the appellant, George D. Fitzpatrick. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The Davidson County Grand Jury indicted the Petitioner for one count of rape and one count of assault. The Petitioner's first trial ended with a hung jury. Following a second trial, the Petitioner was convicted of rape and assault, and sentenced to an effective thirty years of incarceration. His convictions and sentences were upheld on direct appeal. See State v. George D. Fitzpatrick, No. 01C01-9709-CR-00398, 1998 WL 775665 at *1, Davidson County (Tenn. Crim. App., Nashville, Nov. 4, 1998), perm. to appeal denied (Tenn. 1999). Subsequently, the Petitioner filed a timely petition for post-conviction relief alleging ineffective assistance of counsel at his trial. After a hearing the court below dismissed the petition, from which ruling the Petitioner now appeals. Upon our review of the record, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/fitzpatrickgeorged.wpd JOHN CLARK GARRISON V. STATE OF TENNESSEE Court:TCCA Attorneys: Gregory P. Isaacs, Knoxville, Tennessee for the appellant, John Clark Garrison. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; Randall E. Nichols, District Attorney General; and C. Leon Franks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, John Clark Garrison, filed a petition for post-conviction relief attacking his two convictions for theft of property over the value of $10,000.00 but less than $60,000.00. Petitioner was represented by counsel who filed the petition for post-conviction relief on his behalf. The State filed a response to the petition. The trial court dismissed the petition without an evidentiary hearing, finding that all of the issues were either previously determined, waived, insufficient to assert specific allegations of ineffective assistance of counsel, or presented no question of constitutional deprivation. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA