September 27, 2001 Volume 7 — Number178 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 07 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 JANICE NEWMAN v. SNAP-ON INCORPORATED Court:TSC - Workers Comp Panel Attorneys: Steven H. Trent and Timothy B. McConnell, Johnson City, Tennessee, for the appellant, Snap-On Incorporated. Howell H. Sherrod, Johnson City, Tennessee, for the appellee, Janice Newman. Judge: INMAN 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 awarded the plaintiff benefits based on a finding of 22 _ percent impairment. We affirm. http://www.tba.org/tba_files/TSC_WCP/newmanj.wpd 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. Bolwing, 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. Paul G. Summers, Attorney General & Reporter; and Jimmy G. Creasey, Chief Special Counsel, 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 R. JEROME BEASLEY, JR., et al. v. LLOYD AMBURGY, D/B/A AARON'S LIMOUSINE SERVICE, et al. Court:TCA Attorneys: J. P. Barfield, Nashville, Tennessee, for the appellants, R. Jerome Beasley, Jr., Christy Louise Miller and Michael Lynn Gowen. Stephen E. Cox and C. Benton Patton, Nashville, Tennessee, for the appellees, Lloyd Amburgy, d/b/a Aaron's Limousine Service and Ronnie G. Brock. Judge: CANTRELL First Paragraph: A limousine driver, after taking Tylenol and two or three shots of novocaine for an abscessed tooth, suffered a blackout and lost control of the automobile. The trial court granted summary judgment to the driver and his employer on the ground that the blackout was not reasonably foreseeable. We affirm. http://www.tba.org/tba_files/TCA/beasleyrj.wpd JOHN M. CAPPELLO v. HAZEL R. ALBERT, Commissioner, Tennessee Department of Labor, et al. Court:TCA Attorneys: August C. Winter, Brentwood, For Appellant, John M. Cappello William B. Hutcherson, Jr., Nashville, For Appellee, Tennessee Department of Correction Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Assistant Attorney General, For Appellee, Tennessee Department of Labor and Workforce Development, Employment Security Division Judge: CRAWFORD First Paragraph: A corrections officer with the Tennessee Department of Correction, after being discharged for allegedly purchasing a television from an inmate at the institution where he serves, was denied unemployment benefits. The officer's petition for certiorari to the chancery court was dismissed, and the officer has appealed. We affirm. http://www.tba.org/tba_files/TCA/cappellojoh.wpd HOWARD LEVY v. BOARD OF ZONING APPEALS, WILLIAMSON COUNTY Court:TCA Attorneys: Peter H. Curry, Nashville, Tennessee, for the appellant, Howard Levy. Kristi D. Earwood, Franklin, Tennessee, for the appellee, Board of Zoning Appeals, Williamson County. Judge: KOCH First Paragraph: This appeal involves a dispute between neighboring property owners over a storage shed and a swimming pool. After the Williamson County Board of Zoning Appeals authorized one of the property owners to move the storage shed and to construct the swimming pool, the other property owner filed separate petitions for a common-law writ of certiorari in the Circuit Court for Williamson County asserting that the Board had erred by permitting his neighbors to move their storage shed and to construct their swimming pool. The Board moved to dismiss the petitions because they failed to name the neighbors who owned the storage shed and the swimming pool as defendants as required by Tenn. Code Ann. S 27-9-104 (2000). After consolidating the petitions for hearing, the trial court dismissed them on the ground that the petitioning neighbor's failure to name his neighbors as defendants was jurisdictional. We have determined that the petitioning neighbor's failure to comply with Tenn. Code Ann. S 27-9-104 did not affect the trial court's subject matter jurisdiction. We have also determined that the trial court erred by denying the petitioning property owner's motion to amend one of the petitions to cure the failure to comply with Tenn. Code Ann. S 27-9-104. Accordingly, we reverse the order dismissing the petitioning neighbor's petitions for common-law writ of certiorari. http://www.tba.org/tba_files/TCA/levyh.wpd ANTHONY MURRAY v. DEWEY L. LINEBERRY Court:TCA Attorneys: Neal Agee, Jr., Lebanon, Tennessee, for the appellant, Anthony Murray. Parks T. Chastain and Elliott Ozment, Nashville, Tennessee, for the appellee, Dewey L. Lineberry. Judge: CANTRELL First Paragraph: This appeal arises from a defamation action. The appellant sued the appellee for slander after the appellee aired a series of political advertisements including statements about the appellant, a deputy sheriff. The Wilson County Circuit Court granted the appellee's motion for summary judgment. We affirm the trial court's decision. http://www.tba.org/tba_files/TCA/murraya.wpd EARL J. VAN WINKLE, et al. v. CITY OF LaVERGNE Court:TCA Attorneys: John E. Quinn and Todd C. McKee, Nashville, Tennessee, for the appellant, City of LaVergne. Josh A. McCreary and Jeff Reed, Murfreesboro, Tennessee, for the appellees, Earl J. Van Winkle and wife, Pauline Van Winkle, individually, and d/b/a Rip Van Winkle Mobile Home Park. Judge: FARMER First Paragraph: This appeal involves the disputed ownership of water lines. The City of LaVergne appeals the trial court's ruling that the city was the owner of the water lines and responsible for their continued maintenance and repair. LaVergne also appeals the trial court's award of $3037.31 to the Van Winkles. For the reasons set forth below, we affirm the ruling of the trial court. http://www.tba.org/tba_files/TCA/vanwinkleearl.wpd WARREN RESTORATION COMPANY, LLC. v. NORTHGATE SHOPPING CENTER, et al. v. STATE AUTO INSURANCE COMPANIES Court:TCA Attorneys: Michael P. Mills, Nashville, Tennessee, for the appellant, State Auto Insurance Companies. Larry B. Stanley, McMinnville, Tennessee, for the appellee, Northgate Shopping Center, Harold Martin and Joe Shelton, d/b/a Northgate Shopping Center, and Harold Martin, individually and Joe Shelton, individually. Judge: FARMER First Paragraph: This is a dispute regarding the valuation of a strip mall for purposes of determining the applicability of a co-insurance penalty clause in Northgate Shopping Center's casualty insurance policy. In a bench trial, the trial court found the witness for Northgate to be more credible than the witness for State Auto Insurance Companies, and found the replacement cost of the building to be $3,068,000. Since the building was insured for $3,100,000, the co-insurance penalty did not apply. The trial court awarded Northgate judgment of $73,637.56, less a $1,000 deductible. This judgment included prejudgment interest of $16,107.00 assessed against Northgate and awarded to Plaintiff Warren Restoration, which had repaired areas of the mall damaged by fire. On appeal, State Auto challenges the trial court's acceptance of the valuation as determined by witnesses for Northgate, contends that the co-insurance penalty clause is applicable, and challenges the award of prejudgment interest. For the reasons set forth below, we affirm the trial court in all respects. http://www.tba.org/tba_files/TCA/warrenrestorationco.wpd STATE OF TENNESSEE v. TROY WAYNE DAVIS Court:TCCA Attorneys: Mark E. Stephens, District Public Defender, and Paula R. Voss and Robert C. Edwards, Assistant Public Defenders, for the appellant, Troy Wayne Davis. Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Patti Cristil and Jennifer Welch, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Troy Wayne Davis, was convicted of aggravated assault. The trial court imposed a sentence of three years, to be served consecutively to a robbery sentence for which the defendant was on probation at the time of the aggravated assault. The single issue presented for review is whether the evidence is sufficient. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/davistroywayne.wpd STATE OF TENNESSEE v. JODY SWEAT Court:TCCA Attorneys: Donald A. Bosch and Lisa B. Morton, Knoxville, Tennessee (on appeal), and Robert M. Cohen, Maryville, Tennessee (at trial), for the appellant, Jody Sweat. Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann, Assistant Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Jody Sweat, indicted for attempted first degree murder and aggravated assault, was convicted of attempted second degree murder and aggravated assault. The trial court imposed concurrent sentences of 11 and four years, respectively. In this appeal of right, the defendant challenges the sufficiency of the evidence for attempted second degree murder; argues that the trial court improperly instructed the jury on attempted second degree murder as a lesser included offense; contends that the state was guilty of prosecutorial misconduct during closing argument; and submits that the jury was allowed to consider exhibits never offered into evidence. The judgments are affirmed. http://www.tba.org/tba_files/TCCA/sweatjody.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. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! For the Plain Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE 3) Leave the body of the message blank For the HTML Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE HTML 3) Leave the body of the message blank UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! To STOP receiving TBALink Opinion-Flash: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: UNSUBSCRIBE 3) Leave the body of the message blank © Copyright 2001 Tennessee Bar Association