October 25, 2001 Volume 7 — Number 198 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 10 New Opinion(s) from the Tennessee Court of Appeals 07 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 EDWIN H. MADEWELL v. THE TRAVELERS INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: Robert J. Uhorchuk, Chattanooga, Tennessee, for the appellant, The Travelers Insurance Company. Robert S. Peters, Winchester, Tennessee, for the appellee, Edwin H. Madewell. Judge: LOSER 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. In this appeal, the employer's insurer insists (1) the trial court erred in accepting the opinion of Dr. Ray Hester over that of Dr. Roger Zwemer as to the extent of the employee's permanent medical impairment, (2) the trial court erred in awarding permanent partial disability benefits in an amount that exceeds two and one-half times the medical impairment rating, (3) the trial court erred in awarding temporary total disability benefits, (4) the award of permanent partial disability benefits is excessive, (5) the defendant is entitled to a setoff, and (6) the trial court erred in commuting permanent partial disability benefits to a lump sum. As discussed below, the panel has concluded the award of temporary total disability benefits and the lump sum award should be modified, and a setoff allowed for payments made under an employer-funded disability plan, but the judgment otherwise affirmed. http://www.tba.org/tba_files/TSC_WCP/madewelleh.wpd IN RE: RHODA BELLE HUDSON ARMSTER Court:TCA Attorneys: Tom W. Moore, Jr., Columbia, Tennessee, for the appellant, Robert L. Armster, Jr. Jane M. Jennings, Lawrenceburg, Tennessee, for the appellee, Shirley Nixon, Trustee and The Bible Hygiene New Direction Training Center Trust. Judge: COTTRELL First Paragraph: This appeal involves a conservatorship action and an effort to set aside a will and related documents. Mrs. Armster executed a living trust, in which she named herself as the beneficiary during her life time. She also executed a will, which devised her entire estate to the trust and named The Bible Hygiene New Direction Training Center as beneficiary of the trust upon her death. Appellant, a child of Mrs. Armster, filed suit in Chancery Court and sought to: (1) have a conservator appointed for his mother to manage her legal and financial affairs; (2) have the trust and will set aside on the basis that his mother did not have sufficient mental capacity to execute the documents; and (3) have the will set aside because it was obtained as a result of undue influence. The trial court did not appoint a conservator and found that Mrs. Armster had the requisite mental capacity to execute the documents. Further, the court found that the will was valid as it was not the result of undue influence. We affirm the decisions of the trial court. http://www.tba.org/tba_files/TCA/armsterr.wpd RONALD EMBRY, et al. v. DIRECT INSURANCE COMPANY, et al. Court:TCA ORDER: After hearing oral arguments and upon further review of the briefs in this case, we are of the opinion that the appeal pursuant to Rule 10 of the Tenn. R. App. P. was improvidently granted, and we, therefore, DISMISS this appeal. The stay previously entered by this Court is hereby lifted. Costs of the appeal are taxed to Direct Insurance Company, Direct General Insurance Company and Direct General Financial Services, Inc. JudgeS: GODDARD AND SUSANO http://www.tba.org/tba_files/TCA/embryr.wpd JANICE CAROLINE (SHERRILL) HILLYER v. CHARLES LEE HILLYER Court:TCA Attorneys: Christine Zellar Church, Clarksville, Tennessee, for the appellant, Janice Caroline (Sherrill) Hillyer. Mark A. Rassas, Clarksville, Tennessee, for the appellee, Charles Lee Hillyer. Judge: COTTRELL First Paragraph: The issues in this post-divorce case arise because the former husband's waiver of military retirement pay in order to receive disability benefits cut off the former wife's receipt of her portion of the retirement pay which had been awarded to her in the distribution of marital property. The former wife filed a contempt petition, seeking to reinstate her portion of the benefits. The trial court, relying on Gilliland v. Stanley, an unpublished opinion from this court, denied her motion for contempt. In light of our Supreme Court's holding in Johnson v. Johnson, 37 S.W.3d 892 (Tenn. 2001), we reverse and remand. http://www.tba.org/tba_files/TCA/hillyerj.wpd CORRECTED OPINION 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 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/hodgejacorrex.wpd GARY WILLIAM HOLT v. DENNIS YOUNG, et al. Court:TCA Attorneys: Gary William Holt, Ft. Worth, TX, pro se P. Brocklin Parks, J. Russell Farrar, Nashville, TN, for Appellee Dennis Young William E. Godbold, III, Charles W. Poss, Chattanooga, TN, for Appellee Tim Fuller Judge: HIGHERS First Paragraph: This appeal arises from the seizure of the Appellant's car and personal possessions by the Appellees. The Appellant filed a complaint against the Appellees in the Circuit Court of Franklin County, alleging civil rights violations, fraud, negligence, and perjury under the laws of the State of Tennessee. The complaint also alleged violations of 42 U.S.C. S 1983 and 42 U.S.C. S 1986. The Appellees filed motions to dismiss for failure to state a claim upon which relief can be granted. The trial court entered an order granting the Appellees' motions to dismiss. The Appellant appeals the order entered by the Circuit Court of Franklin County granting the Appellees' motions to dismiss. For the reasons stated herein, we affirm the trial court's http://www.tba.org/tba_files/TCA/holtgarywilliam.wpd RICHARD L. JOHNSON, et al. v. STONEY R. HUNTER, et al. Court:TCA Attorneys: Glen G. Reid, Jr., Memphis, Tennessee, and Robert J. Walker, Nashville, Tennessee, for the appellants, Patrick M. Ardis and Wolff Ardis. Abby R. Rubenfeld and David B. Lyons, Nashville, Tennessee for the appellee, Denty Cheatham. Judge: INMAN First Paragraph: The issue in this case involves an equitable division of a fixed attorney fee under quantum meruit. The trial judge awarded Mr. Cheatham a portion of the fee by multiplying the number of hours invested by an hourly rate. We hold that this method is not quantum meruit which requires a consideration of the factors listed in DR 2-106. http://www.tba.org/tba_files/TCA/johnsonrichard.wpd WELLES DISSENTING http://www.tba.org/tba_files/TCA/johnsonrichard_dis.wpd STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. J.S., et al. Court:TCA Attorneys: William C. Barnes, Jr., Columbia, Tennessee, for the appellant, J.S. Jason A. Golden, Columbia, Tennessee, for the appellant, T.P. Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, for the appellee, State of Tennessee Department of Children's Services. Judge: SUSANO First Paragraph: This case involves a petition for termination of parental rights brought by the Tennessee Department of Children's Services ("DCS"). Following a bench trial, the court below terminated the parental rights of J.S. ("Mother") and T.P. ("Father") with respect to their minor child, A.R.P. (DOB: November 5, 1995), finding, by clear and convincing evidence, (1) that both Mother and Father exhibited a wanton disregard for the child such as to constitute abandonment under T.C.A. S 36-1- 102(1)(A)(iv), and (2) that termination is in the child's best interest. Mother and Father appeal separately, arguing that the trial court erred in terminating their parental rights because clear and convincing evidence of abandonment was not shown at trial. They also contend that the record does not contain clear and convincing evidence that termination is in the best interest of the child. We affirm. http://www.tba.org/tba_files/TCA/js.wpd PRECISION MECHANICAL CONTRACTORS, et al. v. METROPOLITAN DEVELOPMENT AND HOUSING AGENCY Court:TCA Attorneys: Don L. Smith, Kenneth S. Schrupp, Nashville, for Appellant H. Frederick Humbracht, Jr., Russell B. Morgan, Nashville, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a dispute over two construction contracts. One contract involved the replacement of furnaces at the Preston Taylor Homes Housing Project, and the other contract was for underground utilities and site work at the Tony Sudekum Homes Housing Project. Plaintiff filed suit seeking additional compensation based upon its performance of the two contracts with Defendant. The trial court granted Defendant's motion for an involuntary dismissal after the close of Plaintiff's proof. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/precisionmechanical.wpd ALFRED EARL VINCENT v. CHERYL LYNN VINCENT Court:TCA Attorneys: Joe R. Judkins, Wartburg, Tennessee, for Appellant, Cheryl Lynn Vincent. John McFarland, Kingston, Tennessee, for Appellee, Alfred Earl Vincent. Judge: FRANKS First Paragraph: In this divorce case, the Trial Court awarded custody of the minor child to father and divided the parties' marital assets. The wife appealed and we affirm. http://www.tba.org/tba_files/TCA/vincenta.wpd KATY WILSON, et al. v. DICKSON COUNTY, TENNESSEE, et al. Court:TCA Attorneys: William C. Moody, Nashville, Tennessee, for the appellants, Dickson County, Tennessee; Dickson County Ambulance Service; and David Cline. Walter W. Bussart, Lewisburg, Tennessee, for the appellee, Katy Wilson. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Heather C. Ross, Senior Counsel, for the intervenor, State of Tennessee. Judge: INMAN First Paragraph: This is a GTLA action for damages for wrongful death caused by the admitted negligence of a paramedic, (who enjoyed no immunity) employed by the county, which enjoyed immunity. Pecuniary damages of $385,000 for the value of the decedent's life were awarded, together with a separate award of $500,000 for "consortium-type damages." As against the County and its ambulance service, the total award cannot exceed $130,000. As against the paramedic the award is limited only by the standard of reasonableness. The total award is reduced to $500,000. http://www.tba.org/tba_files/TCA/wilsonk.wpd STATE OF TENNESSEE v. JAMES DAVID ALDER Court:TCCA Attorneys: B. Jeffery Harmon, Jasper, Tennessee, for the Appellant, James David Alder. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; James Michael Taylor, District Attorney General; and Steven Strain, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, James David Alder, appeals from his convictions and sentences which he received in the Franklin County Circuit Court. After a change of venue from Sequatchie County and a jury trial in Franklin County, the trial court imposed the following convictions and sentences: aggravated assault, ten years (Range II); kidnapping, ten years (Range II); and unlawful possession of a deadly weapon, eleven months and 29 days (Class A misdemeanor). The trial court ordered the felony sentences to run consecutively to each other but concurrently with the misdemeanor, for an effective sentence of twenty years. On appeal, the defendant complains that the trial court erred (1) in refusing to grant a mistrial after the victim testified that she had obtained an order of protection against the defendant and (2) in imposing the sentences. After our review of the record, the briefs of the parties, and the applicable law, we affirm the lower court's felony judgments but vacate and modify the misdemeanor judgment. http://www.tba.org/tba_files/TCCA/alderjd.wpd STATE OF TENNESSEE v. QUENTIN D. ARMSTRONG Court:TCCA Attorneys: Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Quentin D. Armstrong. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Rachelle Laisnez, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Quentin D. Armstrong, was convicted of two counts of aggravated assault in the Criminal Court of Davidson County. The trial court merged the second count into the first and sentenced the Defendant to six years. In his appeal as of right, the Defendant contends that (1) the evidence was insufficient to support his convictions for aggravated assault and (2) the trial court erred in refusing to instruct the jury concerning self-defense. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/armstrongqd.wpd STATE OF TENNESSEE v. WILLIAM ORLANDO CRUTCHER Court:TCCA Attorneys: Jeffrey A. DeVasher, Nashville, Tennessee, for the appellant, William Orlando Crutcher. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant District Attorney General; Victor S. Johnson, District Attorney General; and Bernard McEvoy, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, William Orlando Crutcher, pled guilty to three counts of aggravated sexual battery and two counts of attempted rape of a child. After a sentencing hearing, the trial court imposed a ten year sentence for each of the Defendant's five convictions and ordered that the three aggravated sexual battery convictions be served consecutively, for an effective sentence of thirty years. On appeal, the Defendant challenges the trial court's imposition of consecutive sentences. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/crutcherwo.wpd STATE OF TENNESSEE v. RICKY LYNN EARLS Court:TCCA Attorneys: Donna Leigh Hargrove, District Public Defender; A. Jackson Dearing, III, Assistant Public Defender; and Gregory D. Smith, Clarksville, Tennessee, for the appellant, Ricky Lynn Earls. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael David Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Ricky Lynn Earls, appeals from his conviction for theft of property valued over $1,000, contesting the sufficiency of the evidence. We affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/earlsrl.wpd STATE OF TENNESSEE v. TERRY LEE ROBINSON Court:TCCA Attorneys: Edward J. Gross, Nashville, Tennessee, for the appellant, Terry Lee Robinson. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Terry Lee Robinson, appeals from his conviction by a jury for first degree murder, for which he was sentenced to life imprisonment. He contends that (1) the evidence was insufficient, (2) the trial court erroneously prohibited a defense expert from testifying as to the victim's cause of death, (3) the trial court admitted evidence of the defendant's prior conduct in violation of Tenn. R. Evid. 404(b), (4) he was denied a fair trial because the jury was composed of ten women and two men, and (5) he was denied a fair trial because a television movie about a man fatally poisoning his wife with cyanide aired during the trial. Although we hold that the trial court erred regarding the defendant's expert and the prior conduct evidence, we conclude the errors were harmless. We affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/robinsontl.wpd STATE OF TENNESSEE v. JERRY LANE RUBERT Court:TCCA Attorneys: John S. Colley, III, Columbia, Tennessee, for appellant, Jerry Lane Rubert. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; Mike Bottoms, District Attorney General; and Daniel J. Runde, Assistant District Attorney, for appellee, State of Tennessee. Judge: SMITH First Paragraph: A Maury County grand jury indicted the defendant, Jerry Lane Rubert, for two counts of aggravated kidnapping and three counts of especially aggravated rape. The defendant moved to suppress the evidence seized from his vehicle, as well as the evidence and statements derived from that seizure, on the grounds that the evidence was illegally seized. The trial court denied the defendant's motion, and at trial the prosecution introduced the evidence at issue. After the conclusion of this trial, a Maury County jury found the defendant guilty on all counts. The defendant now brings this appeal, challenging the trial court's denial of his motion to suppress. After reviewing the record and the applicable law, we find that the defendant's allegations do not merit relief, and therefore affirm his convictions. http://www.tba.org/tba_files/TCCA/rubertjerry.wpd STATE OF TENNESSEE v. LENTONIO MARCEL SWANSON Court:TCCA Attorneys: Monte D. Watkins, Nashville, Tennessee, for the appellant, Lentonio Marcel Swanson. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Bret Thomas Gunn and Ana Lucia Escobar, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals his consecutive sentences totaling 29 years for two counts of aggravated robbery and one count of aggravated assault. He contends the trial court erred in setting the length of each sentence and in ordering the sentences to be served consecutively. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/swansonlm.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! 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