October 24, 2001 Volume 7 — Number 197 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 09 New Opinion(s) from the Tennessee Court of Appeals 03 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 JANIE LOU COBB v. HENRY I. SIEGEL, INC. Court:TSC - Workers Comp Panel Attorneys: Jill A. Hanson, Nashville, Tennessee, for the appellant, Henry I. Siegel Company. Donald E. Parish, Huntingdon, Tennessee, for the appellee, Janie Lou Cobb. Judge: LOSER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends the evidence preponderates against the trial court's award of permanent partial disability benefits based on 42 percent to the body as a whole. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/cobbjanie.wpd ED DAVIS v. CITY OF MILAN, TENNESSEE Court:TCA Attorneys: C. Mark Donahoe, Jackson, For Appellant, Ed Davis C. Timothy Crocker; Michael A. Carter, Milan, For Appellee, City of Milan Judge: CRAWFORD First Paragraph: Farmer sued city for damages resulting from a fire that destroyed his barn alleging that the city's utility division was negligent in installing a pole and wire on his property and was also negligent in failing to prevent an electrical surge that caused the failure in the wiring. The trial court granted summary judgment to city, and plaintiff appeals. We reverse. http://www.tba.org/tba_files/TCA/davised.wpd DIRECT INSURANCE COMPANY v. GEORGE MICHAEL BROWN Court:TCA Attorneys: Jerry M. Martin, Knoxville, Tennessee, for Appellant. David S. Bunn, Bristol, Virginia, and Gregory K. Haden, Kingsport, Tennessee, for Appellee. Judge: FRANKS First Paragraph: Trial Court declared coverage under policy issued by plaintiff to defendant for a motor vehicle accident, holding the vehicle operated by defendant was a replacement vehicle. On appeal, we reverse. http://www.tba.org/tba_files/TCA/directins.wpd EMMETT K. DUNLAP v. NANCY DAVIS, et al. Court:TCA Attorneys: Emmett K. Dunlap, Pro Se Tom Anderson, Jackson, For Appellees, Nancy Davis, et al Judge: CRAWFORD First Paragraph: Plaintiff-inmate, acting pro se, filed a petition for writ of certiorari to review a judgment of the general sessions court dismissing his case. The trial court denied plaintiff's petition and he appeals. We affirm. http://www.tba.org/tba_files/TCA/dunlapemm.wpd JAMES ROGER NELSON v. VICTORIA KAY GOAD NELSON Court:TCA Attorneys: Joe R. Judkins, Wartburg, Tennessee, for the Appellant, Victoria Kay Goad Nelson. James W. Brooks, Jr., Wartburg, Tennessee, for the Appellee, James Roger Nelson. Judge: SWINEY First Paragraph: James Roger Nelson ("Husband") filed a Complaint for Absolute Divorce ("Complaint") against Victoria Kay Goad Nelson ("Wife"). Wife filed an Answer and a Counter-Complaint for divorce. Wife admitted to Husband she had been and still was involved in an extramarital affair with a co- worker. Before trial, Husband obtained a temporary restraining order against Wife, and Wife obtained an Order of Protection against Husband. Wife testified Husband had subjected her to verbal and physical abuse in front of their minor children. Wife also testified Husband had threatened her with a gun while their children were at home with them. The Trial Court granted both parties a divorce, divided the parties' property, and awarded custody of the children to Husband. The Trial Court based its custody decision upon Wife's extramarital affair and the fact that Husband, at the time of trial, had the more stable home environment. The Trial Court failed, however, to address Wife's allegations that she was abused by Husband. Wife appeals the custody award and portions of the Trial Court's property division. We vacate, in part, and affirm, in part, and remand. http://www.tba.org/tba_files/TCA/nelsonjrv VENELSIA STEPHENS v. THE SHELBY COUNTY GOVERNMENT, et al. Court:TCA Attorneys: Florence M. Johnson, Memphis, For Appellant, Venelsia Stephens Carroll C. Johnson, Memphis, For Appellees, Shelby County Government, et al Judge: CRAWFORD First Paragraph: County employee sued county for on-the-job injury benefits resulting from carpel tunnel syndrome. Employee filed suit over one year after the county denied her claim for benefits. After a nonjury trial, the trial court dismissed plaintiff's case with prejudice as barred by the one-year statute of limitations. Employee appeals. We affirm. http://www.tba.org/tba_files/TCA/stephensvenv ROY TAYLOR v. TENNESSEE DEPARTMENT OF CORRECTION, et al. Court:TCA Attorneys: Roy Taylor, Pro Se No Appearance by Tennessee Department of Correction Judge: CRAWFORD First Paragraph: Prisoner filed a petition for writ of certiorari seeking review of two disciplinary actions the Tennessee Department of Corrections filed against him. The Circuit Court of Lauderdale County dismissed the action, finding that the petition was not filed within the sixty-day limitation period set out in T.C.A. S 27-9-102 (2000). We affirm in part and reverse in part. http://www.tba.org/tba_files/TCA/taylorroy.wpd JUDITH R. THOMAS v. WILLIAM A. THOMAS Court:TCA Attorneys: Jean Brown, Knoxville, Tennessee, for the appellant, Judith R. Thomas. Amelia G. Crotwell, Knoxville, Tennessee, for the appellee, William A. Thomas. Judge: SUSANO First Paragraph: This is a post-divorce proceeding. Judith R. Thomas ("Mother") filed a petition for contempt and for an increase in child support. William A. Thomas ("Father") answered and filed a counterclaim, seeking a decrease in his support obligation. Following a bench trial, the court below determined that while Father had failed to comply with some of the provisions of the parties' marital dissolution agreement ("MDA"), his failure to comply was not willful; therefore, the court declined to hold him in contempt. The court also held that Father's child support obligation should not be changed. Both parties raise issues on this appeal. We affirm. http://www.tba.org/tba_files/TCA/thomasjr.wpd TENNESSEE FARMERS MUTUAL INSURANCE COMPANY v. SA W. JEONG, et al. Court:TCA Attorneys: Michael E. Callaway, Cleveland, Tennessee, for the appellant, Tennessee Farmers Mutual Insurance Company. Jimmy W. Bilbo, Cleveland, Tennessee, for the appellees, Sa W. Jeong, Jack Sung K. Lee, and Hyunlan Lee. Judge: SUSANO First Paragraph: Tennessee Farmers Mutual Insurance Company ("Tennessee Farmers") brought a declaratory judgment action against Sa W. Jeong ("the injured party"); her daughter, Hyunlan Lee; and her son-in-law, Jack Sung K. Lee (the defendants Lee are referred to herein collectively as "the Lees"), asking the trial court to "declare whether or not Tennessee Farmers is obligated to afford liability coverage to [the Lees] in connection with the lawsuit filed against them by [the injured party]." At the conclusion of a bench trial, the trial judge ruled in favor of the defendants, finding that the word "reside" and its derivatives "resident" and "residing," particularly as the latter two words are used in the policy language excluding coverage of a claim by a "covered person" or one "residing in the same household," are ambiguous, and that the language of the policy should be construed against Tennessee Farmers as the drafter of the policy. The court ordered Tennessee Farmers to provide liability coverage to the Lees with respect to the subject lawsuit. Tennessee Farmers appeals, raising issues as to whether the trial court correctly ruled that the policy is ambiguous, and whether the trial court was correct in finding that the word "resident" was susceptible to a reasonable meaning that would exclude the injured party from the ambit of the subject exclusionary language in the policy. We find that the subject policy provision is not ambiguous; however, we conclude that the injured party was not "residing in [the Lees'] household" as that language has been construed by applicable case law. Accordingly, we affirm. http://www.tba.org/tba_files/TCA/tnfarmers.wpd UNION PLANTERS NATIONAL BANK as Executor and Trustee of the Will of JAMES A. LeROY, deceased v. BETTYE CLAIRE REINHARDT DEDMAN, et al. Court:TCA Attorneys: Marion S. Boyd, Jr., Memphis, Tennessee, for the appellant, Union Planters National Bank, as Executor and Trustee under the Will of James A. LeRoy, deceased. Allan J. Wade, Memphis, Tennessee, for the appellees, Betty Claire Reinhardt Dedman, John Dedman, Bernice A. LeRoy, Jill LeRoy Dimiceli, and Sue LeRoy Henderson. Judge: FARMER First Paragraph: This case is a dispute over the correct valuation of the residuary portion of Testator's estate for purposes of determining whether it was sufficient to pay estate taxes where Testator had directed by Will that such taxes be paid from the residuary. Testator's executor submits that the correct valuation date is the date of death; that neither post-death income nor appreciation of assets in the residuary should be included in the valuation; that income tax paid by the estate on income with respect to a decedent (IRD) should be included in a calculation of the death tax fund deficiency; that attorney's fees incurred as a result of protracted litigation should be included in the death tax fund deficiency calculation. Executor asks us to determine whether such deficiencies are apportionable among those receiving gifts passing outside of probate. We hold that the correct valuation date of the residuary for the purpose of determining its sufficiency to pay the death taxes is the date of Testator's death. Post-death increases should not be utilized. If the residuary on the date of death was insufficient to pay the estate taxes, these taxes are apportionable among all those interested in the estate. We further hold that although the IRD income tax and attorney's fees reduce the estate, they are not includible in the death tax fund deficiency so as to be apportionable to recipients of out of probate transfers. http://www.tba.org/tba_files/TCA/unionplanters.wpd STATE OF TENNESSEE v. VINCENT HATCH Court:TCCA Attorneys: A. C. Wharton, Jr., District Public Defender, Tony N. Brayton, Assistant Public Defender, and Mary K. Kent, Assistant Public Defender, on appeal; Vincent L. Hatch, Pro Se, at trial. Paul G. Summers, Attorney General, J. Ross Dyer, Assistant Attorney General, William L. Gibbons, District Attorney General, and James A. Wax, Assistant District Attorney General. Judge: CLARK First Paragraph: One day before his scheduled jury trial for first degree murder, the appellant sought and was granted the right to represent himself. He now appeals from his conviction by a Shelby County jury for the offense of first degree murder, asserting that the convicting evidence was insufficient and that the trial court denied him his constitutional right to the assistance of counsel. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hatchv.wpd STATE OF TENNESSEE v. FRANK C. PEASE Court:TCCA Attorneys: Frank C. Pease, Oak Ridge, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; James N. Ramsey, District Attorney General; and Janice G. Hicks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant, Frank C. Pease, appeals his conviction for criminal contempt. The sole issue for our determination is whether the evidence was sufficient to support his conviction. Since the contempt finding was based upon defendant's anticipated, rather than actual, refusal to follow the court's order, we reverse the judgment of the trial court. http://www.tba.org/tba_files/TCCA/peasefc.wpd STATE OF TENNESSEE v. GEORGE OSBORNE WADE Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee, (on appeal); and Joseph P. Atnip, District Public Defender, Dresden, Tennessee, (at trial), for appellant, George Osborne Wade. Paul G. Summers, Attorney General & Reporter; Mark E. Davidson, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James David Kendall, Assistant District Attorney, for appellee, State of Tennessee. Judge: SMITH First Paragraph: An Obion County jury convicted the defendant for one count of felony evasion of arrest, one count of felony reckless endangerment, and one count of misdemeanor evasion of arrest. The trial court sentenced the defendant to six (6) years as a Range II multiple offender for his conviction for felony evasion of arrest, which was merged with his conviction for reckless endangerment. The trial court also sentenced the defendant to eleven (11) months and twenty-nine (29) days for his conviction for misdemeanor evasion of arrest, to be served concurrently with his sentence for his felony conviction. The defendant filed for a motion for new trial, and the trial court held a hearing on that motion on the same date that it held the sentencing hearing. Subsequently, the defendant filed a second motion for new trial, which the court treated as an amended motion for new trial. On appeal, the defendant challenges the sufficiency of the evidence at trial, his sentence, and the trial court's refusal to grant his motion for new trial based on the threatening statements made to jurors during a break in their deliberations. After reviewing the record, we find that none of these claims merit relief and therefore affirm the defendant's conviction. http://www.tba.org/tba_files/TCCA/wadegeo.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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