Opinion Flash

August 27, 2003
Volume 9 — Number 156

Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

This Issue (IN THIS ORDER):
04 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
06 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

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


RAY D. EDWARDS, SR., ET AL. v. HALLSDALE-POWELL UTILITY DISTRICT KNOX
COUNTY, TENNESSEE

Court:TSC

Attorneys:                          

Dan D. Rhea and Samuel C. Doak, Knoxville, Tennessee, for the
Defendant-Appellant, Hallsdale- Powell Utility District.

J. Myers Morton and George W. Morton, Jr.,  Knoxville, Tennessee, for
the Plaintiffs-Appellees, Ray D. Edwards, Sr., Jewele C. Edwards, John
F. Gazick, and Helene K. Gazick.

Judge: HOLDER

First Paragraph:

The plaintiffs brought suit against Hallsdale-Powell Utility District
for nuisance and inverse condemnation after their homes were flooded
with raw sewage on two occasions.  The trial court granted partial
summary judgment to the utility district on the plaintiffs’ claim for
inverse condemnation, holding that no taking of their properties had
occurred.  The Court of Appeals vacated the trial court’s grant of
partial summary judgment.  The intermediate appellate court held that
the plaintiffs had presented sufficient facts to overcome summary
judgment by showing that the sewage backup into their homes had caused
a permanent loss of market value.  We hold that a governmental
defendant must perform a purposeful or intentional act for a taking to
exist.  Because such an act was not shown in the present case, we
reverse the judgment of the Court of Appeals and remand the case to
the trial court for further proceedings in accordance with this
opinion.

http://www.tba.org/tba_files/TSC/edwardsraye>
							
STATE OF TENNESSEE v. KEENA MATHES

Court:TSC

Attorneys:                          

Deborah Black Huskins and David F. Bautista, Johnson City, Tennessee,
and Steve McEwen, Mountain City, Tennessee, for the Appellant, Keena
Mathes.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Christine M. Lapps, Assistant Attorney General,
for the Appellee, State of Tennessee.

Judge: HOLDER

First Paragraph:

In this appeal, the appellant asserts that the trial court erred in
ordering that she legitimate her youngest child as a condition of
probation.  Having carefully reviewed the issues raised by the
parties, we hold that the trial court erred in requiring the appellant
to legitimate her child as a condition of probation.  Accordingly, we
reverse the judgment of the Court of Criminal Appeals affirming the
legitimation condition and remand the case for proceedings consistent
with this opinion.

http://www.tba.org/tba_files/TSC/mathesk.wpd

WILLIAM HARWELL PERRY v. RICKI C. CHILDS PERRY

Court:TSC

Attorneys:                          

J. Thomas Caldwell, Ripley, Tennessee, for the Appellant, William
Harwell Perry.

Julie D. Byrd and Tina Lum Perrusquia, Bartlett, Tennessee, for the
Appellee, Ricki C. Childs Perry.

Judge: HOLDER

First Paragraph:

We granted this appeal to determine the correct standard to be applied
in modifying a temporary, open-ended award of rehabilitative alimony. 
We hold that a substantial and material change in circumstances must
be shown in order to extend, or otherwise modify, such an award. 
Therefore, we reverse the judgment of the Court of Appeals, and we
remand the case to the trial court for further proceedings consistent
with this opinion.

http://www.tba.org/tba_files/TSC/perrywh.wpd

TONY WILLIS Et Al.  v.  TENNESSEE DEPARTMENT OF CORRECTION

Court:TSC

Attorneys:                          

Brian Dunigan,  Goodlettsville, Tennessee, for the appellant, Edward
Tharpe.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Michael W. Catalano, Associate Solicitor General,
for the appellee, Tennessee Department of Correction.

Judge: BARKER

First Paragraph:

The issue in this case is the proper standard to be applied to motions
to dismiss petitions for common-law writ of certiorari in prison
disciplinary proceedings.  This appeal involves a prisoner who was
charged with and convicted of the disciplinary violation of attempted
escape.  The prisoner filed a petition for a common-law writ of
certiorari in the Chancery Court for Davidson County challenging the
action of the disciplinary board arguing that it was illegal,
arbitrary, and excessively punitive.  The chancery court granted the
Department of Correction’s motion to dismiss for failure to state a
claim because the process provided to the petitioner was commensurate
with the sanctions imposed upon him, and therefore, there was no
violation or deprivation of due process.  The majority of the Court of
Appeals affirmed the trial court’s judgment, with Judge Koch
dissenting.  We granted Petitioner’s request for permission to appeal,
and after conducting our own de novo review of the record, we hold
that the petitioner did state a claim for relief under the common-law
writ of certiorari because his petition alleged that the disciplinary
board failed to follow its own disciplinary guidelines and that the
petitioner was substantially prejudiced thereby.  At the same time, we
agree with the Department of Correction that the petitioner did not
state a claim for relief under the due process clause of the United
States Constitution or the Tennessee Constitution.  Accordingly, the
decision of the Court of Appeals is reversed in part, affirmed in
part, and the case is remanded to the trial court for further
proceedings.

http://www.tba.org/tba_files/TSC/willist.wpd

MARY GUESS  v.  SHARP MANUFACTURING CO. OF AMERICA, A DIVISION OF
SHARP ELECTRONICS CORP.

Court:TSC - Workers Comp Panel

Attorneys:                          

Ronald L. Harper and R. Scott Vincent, Memphis, Tennessee, for the
appellant, Sharp Manufacturing Company of America, a division of Sharp
Electronics Corporation.

Donald A. Donati and John F. Canale, III, Memphis, Tennessee, for the
appellee, Mary Guess.

Judge: BARKER

First Paragraph:

The dispositive issue in this workers’ compensation action is whether,
under the Tennessee Workers’ Compensation Law, the plaintiff suffered
a compensable mental injury stemming from perceived exposure to the
Human Immunodeficiency Virus (HIV).  The appellee filed a workers’
compensation claim seeking relief based upon a chronic mental disorder
that arose after she came into contact with the blood of a co-worker,
whom she believed to be HIV positive.  The Chancery Court for Shelby
County found that the appellee had suffered a vocational disability as
a result of the psychological consequences of the event and awarded
benefits.  Prior to argument and consideration by the Special Workers’
Compensation Panel, an order was entered directing that the case be
heard by the entire court.  After conducting our own de novo review of
the record, we hold that a plaintiff seeking workers’ compensation
benefits for a mental injury due to exposure to HIV must demonstrate
actual exposure through a medically recognized channel of
transmission.  Accordingly, the Chancery Court erred in awarding
benefits to the appellee based on a finding that the appellee suffered
a 38% disability to her mental faculties.  The judgment of the trial
court is reversed.

http://www.tba.org/tba_files/TSC_WCP/guessm.wpd

IN RE:  THE ESTATE OF LOWELL FRAZIER

Court:TCA

Attorneys:                          

Dudley W. Taylor, Knoxville, Tennessee, for the Appellant, Glenda Faye
Smith.

Johnny V. Dunaway, LaFollette, Tennessee, Guardian Ad Litem, for the
Appellees, Matthew Lough and Chelsea Herron.

Judge: GODDARD

First Paragraph:

This appeal concerns two separate suits filed in the Chancery Court
for Campbell County in connection with the administration of the
Estate of Lowell Frazier.  The first suit was brought by Sam Lough,
individually, and also, along with his wife, Debbie Lough, as parents
and guardians of Matthew Lough, and Darryl Herron and Elizabeth
Herron, as parents and guardians of Chelsea Herron.  It sought to
establish a lost or spoilated will of Mr. Frazier, which was dated
January 30, 1998  (“the first will”).   The second suit was brought by
Matthew Lough and Chelsea Herron by and through their guardian ad
litem, appointed in the first case, contesting a later will dated May
24, 2000  (“the second will”).  The cases were consolidated below and
the suit seeking to establish the  first will was tried first.  Under
an agreement of the parties, the first case must be decided in favor
of the minors before they would have standing to contest the second
will.  After a plenary trial a jury found as to the first case that
the Plaintiffs proved by clear and convincing evidence that Lowell
Frazier did not destroy the first will. Thereupon, the second trial
was had before the same jury, which found against the second will on
the ground that due execution was not proved and that Glenda Faye
Smith, who was the sole beneficiary of the second will, and at the
time it was executed was attorney- in-fact for Mr. Frazier, did not
overcome the presumption of undue influence over Mr. Frazier by clear
and convincing evidence.  Ms. Smith raises a number of issues, many of
which merit a critical examination, but our review of the record
persuades us that the issue which contends that she was entitled to a
directed verdict in the first case is the dispositive issue in this
appeal.  We find that the Court was in error in not directing a
verdict in her favor in the lost will case and reverse the judgment
rendered therein.  This results in the Plaintiffs not having standing
to pursue the second case, which is reversed and dismissed.

http://www.tba.org/tba_files/TCA/frazierl.wpd

KIM S. HICKERSON v. ANDREW JACKSON DEARING, III

Court:TCA

Attorneys:                          

Kim S. Hickerson, Wartburg, Tennessee, Pro Se.

Larry F. Wallace, Jr., Shelbyville, Tennessee, for the appellee,
Andrew Jackson Dearing, III.

Judge: CAIN
 
First Paragraph:

This is a malpractice action filed by Appellant against his criminal
defense attorney in a case resulting in his conviction by a Coffee
County jury of selling cocaine a Class C felony.  While this civil
case was pending on appeal the underlying criminal conviction of
Appellant was affirmed by the Court of Criminal Appeals and the
Supreme Court denied his application to appeal.  Based upon Gibson v.
Trant, 58 S.W.3d 103 (Tenn.2001), we affirm the action of the trial
court in dismissing the case.

http://www.tba.org/tba_files/TCA/hickersonkim.wpd

CHRIS HICKMAN v. MISTY WILLIS

Court:TCA

Attorneys:                          

Neal Lovlace, Centerville, Tennessee, for the appellant, Misty Willis.

Chris Hickman, Duck River, Tennessee, Pro Se.

Judge: CAIN

First Paragraph:

Mother appeals the trial court action of requiring non-custodial
obligor father to pay only one-half of the premium for medical
insurance covering their minor child and further appeals the amount of
support arrearage.  As the child support guidelines are mandatory in
requiring that non-custodial obligor parent is responsible for the
full premium of medical insurance, the action of the trial court is
modified accordingly and in all other respects affirmed.

http://www.tba.org/tba_files/TCA/hickmanchris.wpd

ERIC J. NUNLEY v. TENNESSEE DEPARTMENT OF CORRECTION, ET AL.

Court:TCA

Attorneys:                          

Eric J. Nunley, appellant, pro se, Hennning, Tennessee.

Paul G. Summers, Attorney General and Reporter, and Stephen R. Butler,
Assistant Attorney General, for the appellees, Tennessee Department of
Correction and Donal Campbell, Commissioner.

Judge: SUSANO

First Paragraph:

The petitioner, Eric J. Nunley, a prisoner in state custody at West
Tennessee State Prison in Henning, brought suit against the Department
of Correction (“the Department”) and its then-Commissioner, Donal
Campbell.  Nunley alleges that his request for “placement at a minimum
security facility” was denied.  He contends that the denial was based
upon the fact that “he allegedly had an escape charge and/or history.”
 He claims that in 1992 he pleaded guilty to a “breach of trust”
violation and that this violation – by .wpdvirtue of a “new rule,
regulation, law, policy and/or practice” – is now considered as a part
of his “escape history” precluding his placement at a minimum security
facility.  Specifically, Nunley challenges his security
reclassification from minimum security trusty to minimum direct
custody.  He seeks a writ of certiorari, a declaratory judgment, and
injunction relief.  He relies, in part, on the Uniform Administrative
Procedures Act, Tenn. Code Ann. § 4-5-101, et seq. (1998) (“the
UAPA”).  The trial court, acting on the defendants’ Tenn. R. Civ. P.
12.02(6) motion, dismissed Nunley’s petition for failure to state a
claim upon which relief can be granted.  Nunley appeals, contending
that the application of the “new rule, regulation, law, policy and/or
practice” to his earlier infraction violates the prohibition against
ex post facto laws and that the defendants are acting in an
“arbitrar[y], illegal, and unconstitutional” manner.  We affirm.

http://www.tba.org/tba_files/TCA/nunleyej.wpd

SEVIER COUNTY, TENNESSEE v. JOHN B. WATERS, TRUSTEE, ET AL.

Court:TCA

Attorneys:                          

George R. Garrison, Sevierville, Tennessee, for the appellant, Sevier
County, Tennessee.

John B. Waters III and Garrett P. Swartwood, Knoxville, Tennessee, for
the appellees, John B,. Waters, Jr., Trustee, Mary Louise Hailey,
Trustee, and Citizens Real Estate & Loan Company, Inc.

Judge: SUSANO

First Paragraph:

This is a land condemnation case.  On November 18, 1988, Sevier County
(“the County”) filed a petition for condemnation seeking to condemn
property in the county for a new jail.  The petition was tried to a
jury some 13 plus years later, on June 19 and 20, 2002.  The jury
awarded compensation of $335,500.  This verdict was $158,500 more than
the amount deposited in court by the County.  The trial court entered
judgment on the jury’s verdict; the trial court supplemented the award
by an award of pre-judgment interest of $267,468.75 and decreed that
the total judgment of $425,968.75  would accrue interest at the rate
of 10% per annum.  The County appeals, arguing (1) that the trial
court erred in excluding evidence pertaining to a controversy over the
ownership of the property; (2) that pre-judgment interest is
discretionary with the court and that the court below should have
considered the disputes among the property owners as a factor
impacting the delay in getting this matter to trial; (3) that the
trial court erred in the way it calculated pre-judgment interest; and
(4) that the trial court erred in decreeing that the judgment of
$425,968.75 would accrue post- judgment interest at the rate of 10%
per annum.  We affirm.

http://www.tba.org/tba_files/TCA/sevier.wpd

XI PROPERTIES, INC., LARRY W. NICHOLS, and JIMMY C. STOUT v. RACETRAC
PETROLEUM INC.,

Court:TCA

Attorneys:                          

Todd Rose, Paris, Tennessee and John Acuff of Cookeville, Tennessee,
for the appellant, RaceTrac Petroleum, Inc.

Peter H. Curry, Nashville, Tennessee for the appellees, XI Properties,
Larry W. Nichols, and Jimmy Stout.

Judge: SHIPLEY

First Paragraph:

Plaintiffs, XI Properties Inc. et al., purchased land from the
defendant, RaceTrac, adjacent to RaceTrac Petroleum in 1992.  Seven
years later, XI Properties, while attempting to develop the property,
learned RaceTrac had inadvertently conveyed to them portions of
RaceTrac parking, curbs and light posts.  Plaintiffs proposed to
remove the unnatural slope created by the parking lot, but defendants
were concerned about their rights and responsibilities.  Plaintiffs
filed a declaratory judgment.  Defendants filed a Motion for Summary
Judgment. We reverse the trial court=s grant of summary judgment to XI
Properties as to adverse possession by RaceTrac.  We  remand the issue
to the trial court to determine if Racetrac can establish possession
of the property.  Further we affirm the finding that XI Properties
owes no duty to RaceTrac for lateral support, so long as it does not
act negligently.

http://www.tba.org/tba_files/TCA/xIproperties.wpd

STATE OF TENNESSEE v. VALERIE ARLENE BULLION

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee, and Donna Hargrove,
Shelbyville, Tennessee (on appeal); A. Jackson Dearing, III,
Shelbyville, Tennessee (at trial), for the appellant, Valerie Arlene
Bullion.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; W. Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Valerie Arlene Bullion, pled guilty in the Marshall
County Circuit Court to operating a motor vehicle in violation of the
Motor Vehicle Habitual Offenders Act, a Class E felony; driving under
the influence, tenth offense, a Class E felony; driving on a revoked
license, fourth offense, a Class A misdemeanor; and violation of the
implied consent law.  The trial court sentenced the appellant to an
effective sentence of eight years incarceration in the Tennessee
Department of Correction, suspended the appellant’s driver’s license
for ten years, and imposed a three thousand dollar ($3000) fine.  On
appeal, the appellant complains that the sentences imposed by the
trial court are excessive.  Upon review of the record and the parties’
briefs, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/bullionva.wpd

STATE OF TENNESSEE v. RICKY LYNN LITTRELL

Court:TCCA

Attorneys:                          
 
Donna Leigh Hargrove, District Public Defender; and Michael J.
Collins, Assistant District Public Defender, for the appellant, Ricky
Lynn Littrell.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Andrew Jackson Dearing, III, Assistant District Attorney
General, for the appellee, State of Tennessee.
 
Judge: TIPTON

First Paragraph:

The defendant, Ricky Lynn Littrell, was convicted by a Bedford County
Circuit Court jury of theft of property valued more than $1,000 but
less than $10,000, a Class D felony, and the trial court sentenced him
as a career offender to twelve years in the Department of Correction. 
In this delayed appeal, the defendant claims that (1) the evidence is
insufficient to support his conviction; (2) the trial court erred by
allowing the stolen merchandise into evidence because a chain of
custody had not been established; and (3) the trial court erred by
allowing a list of the stolen merchandise into evidence because the
testifying witness did not properly authenticate the list pursuant to
Rule 901, Tenn. R. Evid.  We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/littrellrickylynn.wpd

STATE OF TENNESSEE v. RICKY THOMPSON

Court:TCCA

Attorneys:                          

Charles Corn, Cleveland, Tennessee; Lee E. Ledbetter, Athens,
Tennessee; and Brock Mehler, Nashville, Tennessee, for the appellee,
Ricky Thompson.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General;  Jerry N. Estes, District Attorney
General; and William W. Reedy and Amy Reedy, Assistant District
Attorneys General, for the appellant, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Ricky Thompson, was convicted by a jury of first degree
murder, aggravated assault, and arson.  He was sentenced to death for
the first degree murder.  Upon the Defendant’s motion for judgment of
acquittal, the trial court entered an order modifying the jury’s
verdicts to not guilty by reason of insanity.  The State raises one
principal issue in this direct appeal, which it states as follows:
whether the trial court erred in reversing the jury’s determination of
guilt and granting the Defendant a judgment of acquittal by reason of
insanity on charges of first degree murder, aggravated assault, and
arson.  Because we find the evidence legally sufficient to support the
jury’s verdicts, we reverse the trial court’s order, reinstate the
jury’s verdicts, and remand the case to the trial court for
consideration of the Defendant’s motion for a new trial and sentencing
on the aggravated assault and arson convictions.

http://www.tba.org/tba_files/TCCA/thompsonr.wpd

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