October 5, 2001 Volume 7 — Number 184 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 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 JOHNIE N. GIBSON v. DOUGLAS TRANT, ET AL. WITH CONCURING OPINION Court:TSC Attorneys: Gerald C. Russell, Nashville, Tennessee, for the appellant, Johnie N. Gibson. Jeffrey A. Woods, Knoxville, Tennessee, for the appellees, Douglas Trant and Jerry Cunningham. Judge: DROWOTA First Paragraph: This case presents the question whether a criminal defendant must obtain post-conviction relief in order to maintain a legal malpractice action against his defense lawyer (what is often referred to as a "criminal malpractice" action). The trial court held that he must. Since the plaintiff in the malpractice case here was denied post-conviction relief, the court dismissed his claim against his former defense lawyers. The Court of Appeals affirmed. We now affirm. Along with the large majority of courts to address this issue, we adopt the rule that a plaintiff in a criminal malpractice action must show he has been exonerated. To meet this requirement, the plaintiff must obtain post- conviction relief. Because the plaintiff did not obtain such relief, the courts below correctly ruled that the defendants are entitled to summary judgment. http://www.tba.org/tba_files/TSC/gibsonj_opn.wpd CONCURING OPINION http://www.tba.org/tba_files/TSC/gibsonj_con.wpd NPS ENERGY SERVICES, INC. v. ROBERT JERNIGAN Court:TSC - Workers Comp Panel Attorneys: Jade A. Rogers, Gallatin, Tennessee, for the appellant, NPS Energy Systems, Inc. David Day, Cookeville, Tennessee, for the appellee, Robert Jernigan. Judge: CATALANO 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 plaintiff, NPS Energy Services, Inc. appeals the judgment of the trial court finding that the defendant, Mr. Robert Jernigan sustained an injury within the course and scope of his employment when he slipped and fell while at work aggravating a pre-existing hip condition resulting in hip replacement surgery. The trial court found Mr. Jernigan entitled to a vocational disability of 45% to the body as a whole representing three times the 15% anatomical impairment rating given by both physicians in this matter. For the reasons discussed in this opinion we find that the judgment of the trial court should be reversed and the cause dismissed. http://www.tba.org/tba_files/TSC_WCP/npsenergy.wpd TONYA PETRECE RAY v. WILLIAM MARTIN RAY Court:TCA Attorneys: Clark Lee Shaw, Nashville, Tennessee (on appeal), for the appellant, Stephen Eric Staggs. John M. L. Brown, Nashville, Tennessee, for the appellee, William M. Ray. Judge: KOCH First Paragraph: This appeal involves a dispute over the custody of three-year-old twins between their biological father and the former husband of their biological mother. The biological father intervened in the divorce proceeding between the twins' mother and her husband in the Circuit Court for Davidson County seeking custody of the children. Following a bench trial, the trial court declared the parties divorced and awarded custody of the parties' two biological children to the mother's former husband. The trial court also concluded that the mother's former husband was comparatively more fit than the twins' biological father to have custody of the twins. In response to the biological father's Tenn. R. Civ. P. 59.04 motion suggesting that it had applied the wrong legal standard when it determined the custody of the twins, the trial court found that placing the twins with their biological father would expose them to a "substantial risk and danger of great harm." On this appeal, the twins' biological father takes issue with the evidentiary foundation of the trial court's refusal to grant him custody of his children. We have determined that the record does not contain clear and convincing evidence to support the trial court's conclusion that placing these children in their biological father's custody will expose them to substantial harm. Accordingly, we vacate the portion of the decree awarding custody of the twins to their biological mother's former husband. http://www.tba.org/tba_files/TCA/raytp.wpd TIMOTHY DALE RIEDER v. PATRICIA ANN CAWLEY RIEDER Court:TCA Attorneys: Clark Lee Shaw, Nashville, Tennessee, for the appellant Patricia Ann Crawley Rieder. Gerald L. Ewell, Jr., Tullahoma, Tennessee, for the appellee, Timothy Dale Rieder. Judge: CANTRELL First Paragraph: The mother of a seven-year-old daughter asserts that the court awarded custody of the child to the father because the mother is homosexual. We find, however, that the court did not base its award on sexual orientation and that the evidence in the record supports the award of custody to the father. Therefore, we affirm. http://www.tba.org/tba_files/TCA/riedertd.wpd CHUCK ROBERTSON v. MELVIN G. GEORGE, et al. Court:TCA Attorneys: Ronald B. Buchanan, Hendersonville, Tennessee, for the appellant, Chuck Robertson. Larry D. Ashworth and Peter D. Heil, Nashville, Tennessee, for the appellees, Melvin G. George and Jeffrey George. Judge: CAIN First Paragraph: This lawsuit arises out of a real estate contract. The plaintiff, Chuck Robertson, a residential home builder, contracted to purchase sixteen (16) lots from the defendant, Melvin George. After the parties entered into the contract, the plaintiff discovered that the official flood plain designation had been adjusted to include nine (9) of the lots the plaintiff contracted to purchase and filed suit on the theories of intentional misrepresentation, negligent misrepresentation, mutual mistake, unjust enrichment, and violation of the Tennessee Consumer Protection Act. The defendants filed a counter-complaint for breach of contract. The parties filed cross-motions for summary judgment. The trial court dismissed the plaintiff's action holding that the mistake was a mistake of law. We affirm in part, reverse in part, and remand. http://www.tba.org/tba_files/TCA/robertsonchuck.wpd THERESA ANN SAPP STAPLES v. RICHARD CHARLES STAPLES Court:TCA Attorneys: Bruce N. Oldham and Sue Hynds Dunning, Gallatin, Tennessee, for the appellant, Richard Charles Staples. Curtis M. Lincoln, Hendersonville, Tennessee, for the appellee, Theresa Ann Sapp Staples. Judge: INMAN First Paragraph: This is a post-judgment domestic relations case. The principal alleged issue is whether a non- custodial parent may be judicially coerced to exercise visitation privileges. The appealed Order is not imperative and the asserted issue is not a genuine one. Because the judgment is marginally ambiguous we modify it to incorporate a measure of fairness. http://www.tba.org/tba_files/TCA/staplestheresa.wpd DON STONE v. DONALD W. BRICKEY, et al. Court:TCA Attorneys: James C. Hofstetter, Nashville, Tennessee, for the appellants, Donald W. Brickey and Frances E. Brickey. C. Tracey Parks, Gallatin, Tennessee, for the appellee, Don Stone. Judge: CANTRELL First Paragraph: The trial court found that the plaintiff had a prescriptive easement over an old county road that abutted his land. The defendants argue that the trial court was in error because the plaintiff did not prove all of the elements required to establish a prescriptive easement. We affirm the trial court. http://www.tba.org/tba_files/TCA/stoned.wpd BRENDA JANE (THOMPSON) TURNBO v. JOE LARRY TURNBO Court:TCA Attorneys: William C. Barnes, Jr., Columbia, Tennessee, for the appellant, Joe Larry Turnbo. James Y. Ross, Sr., Waynesboro, Tennessee, for the appellee, Brenda Jane (Thompson) Turnbo. Judge: INMAN First Paragraph: A divorce judgment rendered June 5, 1992 required the appellant to pay, inter alia, the sum of $185,000 to his wife "as a fair and equitable division of the marital property." The appellant elected recalcitrance rather than compliance, and failed to pay. He was found in civil contempt in September 2000 and ordered to be confined until he purged himself of contempt. We affirm. http://www.tba.org/tba_files/TCA/turnbobj.wpd AHMAD VAKILI, et al. v. RANDY HAWKERSMITH, et al. Court:TCA Attorneys: James S. Stephens, Tracy City, Tennessee, for the appellants, Ahmad Vakili and Lisa Vakili. Richard W. Gabriel and John R. LaBar, Tullahoma, Tennessee, for the appellee, Randy Hawkersmith, Individually and Hawkersmith Construction, Inc. Judge: CAIN First Paragraph: This case arises from a home construction contract entered into by Appellants and Appellee. Appellants filed a complaint against Appellee in the Chancery Court for Coffee County for breach of contract. Appellee filed an answer and counter-complaint. The trial court found that the contract was a cost-plus contract with no cap or ceiling on the price, and rendered judgment in favor of Appellee for $26,945.10. Appellants appeal. We affirm the trial court. http://www.tba.org/tba_files/TCA/vakiliahmad.wpd STATE OF TENNESSEE v. JOE W. COONROD Court:TCCA Attorneys: A. Burton English and Robert L. Marlow, Shelbyville, Tennessee, for the appellant, Joe W. Coonrod. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Bedford County jury convicted the defendant of Class D felony theft over $1,000, and the trial court sentenced him to 12 years incarceration as a career offender. In this appeal, the defendant alleges the evidence is insufficient to sustain his conviction. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/coonrodjw.wpd STATE OF TENNESSEE v. TIMOTHY D. GROVE Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, Timothy D. Grove. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Derrick L. Scretchen and Michelle H. Thompson, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant, Timothy D. Grove, appeals his conviction for aggravated assault and ten-year Range II sentence in the Department of Correction. Specifically, the defendant contends evidence presented against him at trial was insufficient to support his conviction, and his sentence was excessive. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/grovetd.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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