September 14, 2001 Volume 7 — Number 169 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 06 New Opinion(s) from the Tennessee Court of Appeals 00 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 IN THE MATTER OF: ALL ASSESSMENTS, REVIEW OF AD VALOREM ASSESSMENTS OF PUBLIC UTILITY COMPANIES FOR TAX YEAR 1999 IN THE MATTER OF: ALL ASSESSMENTS, REVIEW OF AD VALOREM ASSESSMENTS OF PUBLIC UTILITY COMPANIES FOR TAX YEAR 2000 Court:TCA Attorneys: Jean Dyer Harrison, Nashville, Tennessee, for the appellants, Tennessee County Government and Tennessee City Governments. Jeffrey Dean Moseley, Franklin, Tennessee, for the appellant, Williamson County, Tennessee. Robert B. Bolwing and Donnie E. Wilson, Memphis, Tennessee, for the appellant, Shelby County, Tennessee. James Charles, Paul D. Krivacka, Jennifer Clinard Surber and Karl Dean, Nashville, Tennessee, for the appellant, Metropolitan Government of Nashville and Davidson County. Jeffrey Dean Moseley, Franklin, Tennessee, for the appellant, Williamson County Government. Robert B. Rolwing, Memphis, Tennessee, for the appellant, Shelby County Government. Paul Stuart Parker and Kemper Harlan Dodson, III, Nashville, Tennessee, for the appellee, ANR Pipeline. Everett B. Gibson, Memphis, Tennessee, for the appellees, Colonial Pipeline Co., MCI Telecommunications, MCI Metro Access Transmission Services, Inc., and Norfolk Southern Railway Co. Thomas Arthur Scott and Suzanne S. Cook, Kingsport, Tennessee, for the appellees, Kingsport Power Co. and Appalachian Power Co. Brigid M. Carpenter, Nashville, Tennessee, James W. McBride, Washington, D.C., and Stephen Door Goodwin, Memphis, Tennessee, for the appellee, Coalition of Public Utilities. Jimmy G. Creecy and Paul D. Krivacka, Nashville, Tennessee, for the appellee, Tennessee State Board of Equalization. Richard W. Bell, Atlanta, Georgia, for the appellee, BellSouth Corporation. Judge: CAIN First Paragraph: In these consolidated cases, a consortium of counties and cities appeals the actions of the Tennessee State Board of Equalization in reducing public utility assessments by fifteen per cent. Acknowledging that all sub-constitutional issues involved in the cases have been foreclosed by the decision of the Tennessee Supreme Court in In Re: All Assessments 1998, No. M1998-00243-SC- R11-CV, 2000 WL 1710174 (Tenn. Nov. 16, 2000), Appellants challenge the constitutionality of Tennessee Code Annotated section 67-5-903(f) and section 67-5-1302(b)(1). We hold both sections of the Code to be constitutional and affirm the decision of the Tennessee State Board of Equalization. http://www.tba.org/tba_files/TCA/allassessments.wpd PAMELA JEAN ANNESS v. MICHAEL MARIO CHAPDELAINE, SR. Court:TCA Attorneys: P. Edward Schell, Franklin, TN, for Appellant Julia E. Stovall, Franklin, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from the Appellee's filing of a Petition to Change Custody in the Chancery Court of Williamson County. Following a hearing, the trial court entered an Order granting custody of the parties' minor children to the Appellee. The trial court ordered the Appellant to pay child support in the amount of $1,480.00 per month. The Appellant appeals the amount of child support set by the trial court. For the reasons stated herein, we affirm in part, reverse in part, and remand the trial court's decision. http://www.tba.org/tba_files/TCA/annesspamelajean.wpd JOHN T. BELL, et al. v. RICHARD GENE NOLAN, et al. Court:TCA Attorneys: Peter V. Hall and Robert O. Bragdon, Murfreesboro, Tennessee, for the appellants, John T. Bell and Myra A. Bell. Gerald L. Ewell, Jr., Tullahoma, Tennessee, for the appellee, Memorial 39, Post #43, American Legion. Richard Gene Nolan, Pro Se. Judge: CANTRELL First Paragraph: The parents of a woman who died after being assaulted by her husband on the premises of an American Legion post filed a wrongful death claim, which named the husband and the American Legion post as defendants. The parents alleged that the Legion's employees had failed to render assistance to the injured woman. The trial court dismissed the complaint against the American Legion, reasoning that the surviving spouse is the only party entitled to maintain an action for the wrongful death of the other spouse. We reverse. http://www.tba.org/tba_files/TCA/belljt.wpd SUZETTE MARIE ELDER v. SIDNEY LEE ELDER Court:TCA Attorneys: Tamra Lee Smith, Shelbyville, Tennessee, for the appellant, Suzette Marie Elder. Robert L. Huskey, Manchester, Tennessee, for the appellee, Sidney Lee Elder. Judge: KOCH First Paragraph: This appeal involves a post-divorce custody dispute precipitated by the custodial parent's decision to accept a job in Texas. The custodial parent requested the Circuit Court for Franklin County to permit the parties' children to accompany him to Texas and to adjust the visitation arrangements accordingly. The non-custodial parent responded by requesting the trial court to change custody. Following a bench trial, the trial court declined to change the existing custody arrangement and permitted the custodial parent to move to Texas. On this appeal, the non-custodial parent takes issue with both the denial of her petition to change custody and the approval of the custodial parent's move to Texas. We have determined that the record supports both of these decisions and, therefore, affirm the trial court. http://www.tba.org/tba_files/TCA/eldersm.wpd JAMES A. HODGE v. JONES HOLDING COMPANY, INC. Court:TCA Attorneys: August C. Winter, Brentwood, Tennessee (on appeal), for the appellant, James A. Hodge. William B. Jakes, III, Nashville, Tennessee, for the appellee, Jones Holding Company, Inc. Judge: KOCH First Paragraph: This appeal involves a motorcycle rider who was seriously injured when his motorcycle crossed metal plates covering a portion of the highway surface that was under construction. After voluntarily dismissing his first suit, the rider filed a second suit in the Circuit Court for Lincoln County against the corporation he believed to be responsible for placing the metal plates across the highway. The rider insisted on proceeding against this corporation even after he was informed that he had sued the wrong party. The corporation moved for a directed verdict at the close of the motorcycle rider's case-in-chief, asserting that he had failed to prove that it was responsible for the road construction. The trial court granted the motion and dismissed the rider's complaint. The rider now challenges the directed verdict on two grounds. First, he asserts that he presented enough evidence of the contractor's responsibility for the construction to take the case to the jury. Second, he asserts that the corporation should not be permitted to argue that he sued the wrong party because it had not specifically identified or described this party in its answer as required by Tenn. R. Civ. P. 8.03. We have determined that the corporation's denial of involvement with the construction project at issue was was not asserting an affirmative defense governed by Tenn. R. Civ. P. 8.03 and that the trial court properly granted the directed verdict. Therefore, we affirm the judgment dismissing the motorcycle rider's complaint. http://www.tba.org/tba_files/TCA/hodgeja.wpd DAVID RIVKIN v. LORI POSTAL Court:TCA Attorneys: Mary Arline Evans and John Michael Garrett, Nashville, Tennessee, for the appellant, David Rivkin. Grayson Smith Cannon, Goodlettsville, Tennessee, for the appellee, Lori Postal. Judge: KOCH First Paragraph: This appeal involves the financial aftermath of a short-lived nonmarital affair that ended badly. The man filed suit in the Chancery Court for Williamson County seeking a partition of the jointly-owned property and the return of his personal property. The woman responded with a counterclaim for breach of promise to marry. Following a bench trial, the trial court divided the jointly-owned property and awarded the woman $150,000 in damages on her breach of promise claim. Both parties now take issue with the judgment. The man asserts that the evidence does not support awarding the woman $150,000 or granting the woman such a large share of the jointly-owned property. The woman takes issue with the reduction of her share of the property because of damage to the man's personal property while it was in her possession. We have determined that the evidence does not support the trial court's conclusion that a promise to marry existed or that the woman was damaged by the failure of the marriage to take place. We have also determined that, with the exception of a cedar chest belonging to the man's grandmother, the manner in which the trial court divided the parties' jointly-owned property was proper. http://www.tba.org/tba_files/TCA/rivkind.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! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. 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