October 12, 2001 Volume 7 — Number 189 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 08 New Opinion(s) from the Tennessee Court of Appeals 01 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 re: Adoption of A. K. S. R. and A. T. S. R. Court:TCA Attorneys: Paul A. Rutherford, Nashville, Tennessee, for appellants, Glendon Todd Williams and Donna Elaine Williams. Andrew R. Tillman and Summer H. Stevens, Knoxville, Tennessee, for appellee, Robbie Fulford. Paul G. Summers, Attorney General and Reporter; Elizabeth C. Driver, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services. Judge: CANTRELL First Paragraph: This appeal stems from a petition by both a paternal aunt and the foster parents to adopt twenty- month-old twin girls. The trial court found that the paternal aunt should adopt the children because relatives have preference over non-relatives in adoption proceedings and the foster parents did not meet the terms of the contract they signed with the Department of Children's Services. We reverse the decision of the trial court and grant the petition of the foster parents. http://www.tba.org/tba_files/TCA/aksr.wpd CORRECTED OPINION 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. Rolwing 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. Paul G. Summers, Attorney General & Reporter; and Jimmy G. Creecy, 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 JOANNE THOMPSON BARRETT v. CHRISTOPHER LEE BARRETT Court:TCA Attorneys: David Goad, Murfreesboro, Tennessee, for the appellant, Joanne Thompson Barrett. John H. Baker III, Murfreesboro, Tennessee, for the appellee, Christopher Lee Barrett. Judge: CANTRELL First Paragraph: In this divorce appeal the wife asserts that the trial judge erred in awarding custody of the children to the father, in refusing to award her rehabilitative alimony, and in the division of the marital estate. We affirm the trial court. http://www.tba.org/tba_files/TCA/barrettjt.wpd SHEILA SUE BYRD v. DAVID BUHL Court:TCA Attorneys: Carrie W. Kersh, Clarksville, TN, for Appellant David Buhl, Clarksville, TN, pro se Judge: HIGHERS First Paragraph: This appeal involves a custody and visitation dispute brought by divorced parents having joint custody of their child. After the mother of the child moved out of state, the child's father petitioned the court for change of custody. The mother then counter-petitioned the court for an increase in child support. After a hearing on the matter, the court altered the previous visitation agreement, increased child support, granted the father the right to claim the child as a dependent for income tax purposes, and refused to grant the mother attorney's fees. This appeal followed and for the following reasons, we affirm. http://www.tba.org/tba_files/TCA/byrdsheilasue.wpd CITY OF MURFREESBORO v. PIERCE HARDY REAL ESTATE, INC. Court:TCA Attorneys: Thomas L. Reed, Jr., Jerry E. Farmer, Murfreesboro, Tennessee, for the appellant, City of Murfreesboro, A Municipal Corporation in Rutherford County, State of Tennessee. G. Sumner R. Bouldin, Jr., Murfreesboro, Tennessee, for the appellee, Pierce Hardy Real Estate, Inc. Judge: COTTRELL First Paragraph: This case involves a dispute between the City of Murfreesboro and a landowner over the value and the acreage of a tract of land taken by the city to be used for a greenway along the Stones River. The city appeals the trial court's denial of a motion in limine that the city filed to exclude testimony of the landowner's appraiser. The motion stated that the expert's testimony relied on an inadmissible method of valuation and should, therefore, be excluded. Additionally, the landowner appeals the trial court's ruling that the landowner did not own a .61 acre portion of the of the land taken because, as it sits at the bottom of a navigable waterway, it is not subject to private ownership. http://www.tba.org/tba_files/TCA/cityofmurfreesboro.wpd IN RE: THE ESTATE OF LUTHER GASTON GARRETT Court:TCA Attorneys: Phillips Smalling, Byrdstown, Tennessee, for appellant Keith Edward Garrett. James P. Romer, Jamestown, Tennessee for appellees Priscilla Louise Wright, Susan Yvonne Wright, Christopher Ross Garrett, Patrick Kent Garrett, and David Denver Garrett. Judge: COTTRELL First Paragraph: The testator, a father of six, left a will which devised to one of his children a specific tract of land which, according to the will, was described in an attached survey map. No survey map was attached to the will. Appellant, the recipient of that bequest, disagreed with his siblings about the size of the tract to which he was entitled. After hearing both parties' evidence, the trial court found that the testator's intent was to devise separate seven acre tracts to both Appellant and one of his brothers with the remainder of the estate's property to be divided equally among the six children. Appellant then commenced this appeal. We affirm in part and reverse in part. http://www.tba.org/tba_files/TCA/garrettl.wpd PETER KUDEREWSKI, et al. v. ESTATE OF HOOVER HOBBS, et al. Court:TCA Attorneys: Kenneth R. Worley, Kingsport, Tennessee, for the Appellants, Peter Kuderewski and David Sanchez. David S. Haynes, Bristol, Tennessee, for the Appellees, Estate of Hoover Hobbs, and its co- administrators, Sandra Hobbs Mann and Lisa Montgomery. Judge: SWINEY First Paragraph: Peter Kuderewski and David Sanchez ("Plaintiffs") sued Hoover Hobbs ("Defendant"), alleging they had an implied partnership during the beginning phases of a now-defunct plan to open a family fun center in Kingsport, Tennessee ("Project"). Plaintiff argues the parties had agreed to use property ("Property") already owned by Defendant for the Project. A portion of the Property was later sold, and Plaintiffs sought to recover 50% of the sale price pursuant to their claimed respective partnership interests. Alternatively, Plaintiffs claim they were entitled to recover, under a theory of unjust enrichment money spent toward improving Defendant's Property in anticipation of the Project. After a bench trial, the Trial Court denied both of Plaintiffs' claims. Plaintiffs appeal. We affirm. http://www.tba.org/tba_files/TCA/kuderewskip.wpd VANDERBILT UNIVERSITY v. PAMELA HENDERSON Court:TCA Attorneys: Pamela Henderson, Nashville, Tennessee, Pro Se. Kevin S. Key, Nashville, Tennessee, for the appellee, Vanderbilt University. Judge: KOCH First Paragraph: This appeal involves a dispute between Vanderbilt University and one of its graduates arising out of two student loans. After the former student stopped repaying the loans, Vanderbilt University filed suit in the Davidson County General Sessions Court seeking to recover the principal and interest due, collection costs, and attorney's fees. The general sessions court awarded Vanderbilt University a $9,056.43 judgment. The former student perfected a de novo appeal to the Circuit Court for Davidson County. Following a bench trial, the trial court awarded Vanderbilt University a $5,051.56 judgment and established an installment payment plan for the judgment. The former student asserts on this appeal that Vanderbilt University was not entitled to a judgment against her because of its failure to comply with the Fair Debt Collection Practices Act and the requirements of the federal student loan program and because she has fully repaid her loans. We have concluded that the record supports the trial court's decision and, therefore, affirm the judgment. http://www.tba.org/tba_files/TCA/vanderbiltuniv.wpd STATE OF TENNESSEE v. JEFFERY H. PAYNE Court:TCCA Attorneys: Howard L. Upchurch, Pikeville, Tennessee, for the appellant, Jeffery H. Payne. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; J. Michael Taylor, District Attorney General; and James W. Pope, III, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The defendant, Jeffrey H. Payne, was indicted by the Bledsoe County Grand Jury for one count of rape of a child, one count of incest, five counts of aggravated sexual battery, and two counts of contributing to the delinquency of a minor. Pursuant to a negotiated plea agreement, Defendant pled guilty to two counts of attempted aggravated sexual battery, Tenn. Code Ann. S 39-13-504(a)(4), a Class C felony. Defendant also agreed to serve two consecutive four-year sentences as a Range I standard offender, with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court ordered that Defendant serve the effective eight-year sentence by incarceration. On appeal, Defendant contends that the trial court erred when it denied his request for probation or any other form of alternative sentencing. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/paynej.wpd PLEASE FORWARD THIS E-MAIL! 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