June 07, 1999 Volume 5 -- Number 078 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 from Tennessee's three appellate courts. This Issue (IN THIS ORDER):   03 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 10 New Opinion(s) from the Tennessee Court of Criminal Appeals 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. *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WordPerfect 6.0 version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original WordPerfect 6.0 document. Lucian T. Pera Editor-in-Chief, TBALink TOMMY L. KING VS. STATE OF TENNESSEE Court:TSC Attorneys: FOR APPELLANT: FOR APPELLEE: Daniel J. Runde John Knox Walkup Assistant Public Defender Attorney General & Reporter Pulaski, Tennessee Robert D. Massey John P. Cauley Co-Counsel Assistant Attorney General Pulaski, Tennessee Nashville, Tennessee Judge:HOLDER First Paragraph: In this post-conviction capital case, we granted this appeal to determine whether the jury's reliance on an invalid felony murder aggravating circumstance was harmless error. Upon review, we hold that the jury's consideration of the invalid felony murder aggravating circumstance was harmless beyond a reasonable doubt due to the strength of the remaining valid aggravating circumstances and the relative weakness or absence of any mitigating circumstances. The Court of Criminal Appeals' decision affirming the trial court's dismissal of the post-conviction petition is affirmed. http://www.tba.org/tba_files/TSC/Kingtoml_opn.WP6 DISSENTING OPINION: http://www.tba.org/tba_files/TSC/Kingtoml_dis.WP6 STATE OF TENNESSEE VS. RONNIE WILLIAM (BILLY) TAYLOR Court:TSC Attorneys: For the Appellant: For the Appellee: Tom W. Crider John Knox Walkup District Public Defender Attorney General and Reporter Trenton, Tennessee Michael E. Moore Solicitor General Michael J. Fahey, II Assistant Attorney General Nashville, Tennessee Judge:BARKER First Paragraph: We granted this appeal by Ronnie William (Billy) Taylor, the appellant, in order to address issues pertinent to the sentences he received in the trial court. In our review, however, we notice as plain error an invalid conviction that was imposed upon appellant for an offense that was not charged in the indictment. Accordingly, for the reasons outlined below, we vacate the invalid burglary conviction and affirm the trial court's judgment as modified. The cause is remanded to the trial court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/Taylorrw_opn.WP6 CITY OF LAFAYETTE VS. MARK & RUBY HAMMOCK Court:TCA Attorneys: LISA COTHRON STINNETT 100 E. Locust street Lafayette, TN 37083 Attorney for Plaintiff-Appellant WILLIAM JOSEPH BUTLER and E. GUY HOLLIMAN FARRAR & HOLLIMAN 102 Scottsville Highway P.O. Box 280 Lafayette, TN 37083 Attorney for Defendants-Appellees Judge:FRANKS First Paragraph: In its eminent domain proceeding, the City of Lafayette (City) took a small strip of Mark and Ruby Hammock's land along the City's right-of-way for an existing street. http://www.tba.org/tba_files/TCA/Ctyoflaf_opn.WP6 MITCHELL L. DARNALL VS. JAMES D. SMITH Court:TCA Attorneys: STANLEY M. CHERNAU Suntrust Center, Suite 1750 424 Church Street Nashville, Tennessee 37219 ATTORNEY FOR PLAINTIFF/APPELLANT ROBERT E. BOSTON 511 Union Street, Suite 2100 Nashville, Tennessee 37219 ATTORNEY FOR DEFENDANTS/APPELLEES Judge:CAIN First Paragraph: This is an appeal by the plaintiff from summary judgment granted to the Defendants in a complaint asserting retaliatory discharge with the action based solely upon Tennessee Code Annotated section 50-1-304. http://www.tba.org/tba_files/TCA/Darnallm_opn.WP6 CONCURRING OPINION: http://www.tba.org/tba_files/TCA/Darnallv_con.WP6 THERESA G. JENKINS VS. LIONEL R. BARRETT, JR., and JOHN G. OLIVA Court:TCA Attorneys: WM. KENNERLY BURGER, Suntrust Bank Building, Suite 306 201 E. Main Street, P.O. Box 1969 Murfreesboro, TN 37133-1969 Attorney for Plaintiff-Appellant DARRELL G. TOWNSEND and DERRICK C. SMITH HOWELL & FISHER, PLLC Court Square Building 300 James Robertson Parkway. Nashville, Tennessee 37201-1107 Attorneys for Defendants-Appellees Judge:FRANKS First Paragraph: The appellant states the issue before this Court thus: A single, narrow issue is presented for consideration in this appeal: Does material evidence within the meaning of Rule 13d, appear in the record which supports the jury's verdict of $140,000.00 in compensatory damages, and, if so, did the trial court erroneously grant a new trial? The case history demonstrates that this issue is not properly before the Court for consideration. http://www.tba.org/tba_files/TCA/Jenkinst_opn.WP6 BILL JENNINGS VS. LAWLER-WOOD, INC. Court:TCA Attorneys: DAVID W. BLANKENSHIP OF KINGSPORT FOR APPELLANT GENE H. TUNNELL OF KINGSPORT FOR APPELLEE Judge:GODDARD First Paragraph: The controversy giving rise to this appeal had its genesis in a service contract for washers and dryers entered into between Plaintiff Bill Jennings and Defendant Lawler-Wood, Inc., which managed Maple-Oak apartments for the owners. http://www.tba.org/tba_files/TCA/jenningb_opn.WP6 PEARL NIXON VS. SHONEY'S, INC. Court:TCA Attorneys: For the Plaintiff/Appellee: For the Defendant/Appellant: Henry Clay Barry Andrew C. Rambo Lebanon, Tennessee Shelbyville, Tennessee Judge:LILLARD First Paragraph: This is a personal injury slip and fall case. The plaintiff was injured when she fell in the defendant's restaurant due to a tray negligently left on the floor. The defendant restaurant admits liability but asserts that the evidence does not support the amount of the trial court's award and seeks a remittitur. We affirm the trial court's decision as modified. http://www.tba.org/tba_files/TCA/Nixonp_opn.WP6 JANET G. SEALS VS. JEFFERSON CITY, TENNESSEE and JEFFERSON COUNTY, TENNESSEE Court:TCA Attorneys: CLYDE A. DUNN OF NEWPORT FOR APPELLANT JEFFREY L. JONES and STEVEN DOUGLAS DRINNON OF DANDRIDGE and TERRY D. TUCKER OF JEFFERSON CITY FOR APPELLEES Judge:GODDARD First Paragraph: The issue presented by this appeal is whether an amendment to T.C.A. 50-1-304 (commonly known as the Whistle Blower Statute), which brought employees of the State of Tennessee within its purview, should be given retrospective effect. http://www.tba.org/tba_files/TCA/sealsjg_opn.WP6 STONE FORT LAND COMPANY VS. THE TENNESSEE PETROLEUM UNDERGROUND STORAGE TANK BOARD, and JUSTIN P. WILSON, COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENT AND CONVERSATION Court:TCA Attorneys: For the Petitioner/Appellant: For the Respondents/Appellees: C. Crews Townsend John Knox Walkup Brian E. Humphrey Elizabeth P. McCarter Chattanooga, Tennessee Nashville, Tennessee Judge:FARMER First Paragraph: This case involves eligibility for environmental cleanup funds. The plaintiff landowner appeals the decision of the Tennessee Petroleum Underground Tank Board finding the plaintiff ineligible to receive reimbursement from the petroleum underground storage tank fund established in Tennessee Code Annotated S 68-215-110. Upon initial review in chancery court, the Board's decision was reversed. The trial court subsequently reconsidered its decision and, based on recent Tennessee appellate decisions, affirmed the Board's decision to deny assistance. We affirm. http://www.tba.org/tba_files/TCA/Stonefrt_opn.WP6 STATE OF TENNESSEE VS. THERON L. BOYD Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MARK C. SCRUGGS JOHN KNOX WALKUP #10103 Attorney General & Reporter P.O. Box 158932 Nashville, TN 37215-8932 ELIZABETH B. MARNEY Assistant Attorney General 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243 VICTOR S. JOHNSON, III District Attorney General WILLIAM REED Assistant Dist. Atty. General Washington Square, Suite 500 222-2nd Avenue North Nashville, TN 37201-1649 Judge:WITT First Paragraph: The defendant, Theron L. Boyd, pleaded guilty in the Davidson County Criminal Court to possession of cocaine for resale, a Class B felony, and unlawful possession of a weapon, a Class A misdemeanor. He received an effective eight year sentence. The defendant has attempted to appeal, pursuant to Tennessee Rule of Criminal Procedure 37(b)(2), certified questions of law challenging warrantless searches conducted by the police. Because we conclude that the defendant did not meet the requirements for preserving post-guilty plea appellate review of his certified questions, we dismiss the appeal. http://www.tba.org/tba_files/TCCA/Boydt_opn.WP6 JERRY E. BRITT VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: WILLIAM A. ZIERER JOHN KNOX WALKUP 124 West Main Street Attorney General & Reporter P.O. Box 1276 Morristown, TN ELIZABETH B. MARNEY 37816-1276 Assistant Attorney General 425 Fifth Avenue North 2nd Floor, Cordell Hull Bldg. Nashville, TN 37243 C. BERKELEY BELL, JR. District Attorney General 109 South Main Street, Ste 501 Greeneville, TN 37743 VICTOR J. VAUGHN Assistant District Attorney Hamblen County Justice Ctr. Morristown, TN 37814 Judge:CLARK First Paragraph: The appellant, Jerry Britt, appeals the denial of his petition for post-conviction relief. The trial court dismissed the petition without a hearing because it found the allegations to be unfounded. Upon review, we reverse the judgment of the trial court and remand the case for further proceedings. http://www.tba.org/tba_files/TCCA/Britt_doc.WP6 STATE OF TENNESSEE VS. CHARLES R. BROWN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Charles Dungan John Knox Walkup 307 College Street Attorney General & Reporter Maryville, TN 37804 425 Fifth Avenue North Nashville, TN 37243-0493 R. Stephen Jobe Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Michael L. Flynn District Attorney General 363 Court Street Maryville, TN 37804-5906 Charles Carpenter Assistant District Attorney General 363 Court Street Maryville, TN 37804-5906 William R. Reed Assistant District Attorney General 363 Court Street Maryville, TN 37804-5906 Judge:LAFFERTY First Paragraph: The appellant, Charles R. Brown, appeals as of right from his conviction for driving under the influence of an intoxicant (DUI) by a Blount County jury. The defendant was sentenced to eleven months and twenty-nine days. He was ordered to serve forty-eight hours in the county jail before being placed on supervised probation for eleven months and twenty-seven days. The defendant was also fined $350. In this direct appeal, the defendant presents two issues: (1) whether the evidence was sufficient to support the finding of guilt beyond a reasonable doubt; and (2) whether the trial court erred in charging the jury. http://www.tba.org/tba_files/TCCA/browncr_opn.WP6 STATE OF TENNESSEE VS. JOHN C. CONE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ROBERT T. VAUGHN JOHN KNOX WALKUP 176 Second Ave., North Attorney General & Reporter Suite 500 Nashville, TN 37201 MARVIN E. CLEMENTS, JR. Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General S. CARRAN DAUGHTREY Asst. District Attorney General Washington Square, Suite 500 222 Second Ave., North Nashville, TN 37201 Judge:PEAY First Paragraph: The defendant was charged with vandalism, three counts of aggravated assault, and two counts of assault. Pursuant to a plea agreement, he pled guilty to vandalism and two counts of aggravated assault, receiving a sentence of one year on the vandalism count and four years on each aggravated assault count, to be served concurrently. Following a sentencing hearing to determine the manner of service, the trial court denied probation. The defendant now appeals, arguing that the trial court erred in denying probation because it perceived inconsistencies in the defendant's statements and did not allow the defendant to clarify the evidence through his statutory right of allocution prior to sentencing. Finding no error, we affirm. http://www.tba.org/tba_files/TCCA/Conejc_opn.WP6 STATE OF TENNESSEE VS. WILLIAM DOTSON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOE COSTNER JOHN KNOX WALKUP 315 High Street Attorney General and Reporter Maryville, TN 37804 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 MIKE FLYNN District Attorney General EDWARD P. BAILEY, JR. KIRK ANDREWS Assistant District Attorneys 363 Court Street Maryville, TN 37804 Judge:SMITH First Paragraph: On February 20, 1990, Appellant William Dotson was indicted by the Blount County Grand Jury for attempted first degree murder, aggravated assault, and aggravated robbery. After a jury trial on November 19-22, 1996, the jury acquitted Appellant of attempted first degree murder, but failed to reach a verdict on the charge of aggravated robbery, the charge of aggravated assault, and on all lesser included offenses of attempted first degree murder and aggravated robbery. Appellant was subsequently tried for attempted second degree murder and aggravated robbery on July 15-17, 1997. On July 17, 1997, Appellant was convicted of attempted second degree murder and aggravated robbery. http://www.tba.org/tba_files/TCCA/Dotsowil_opn.WP6 STATE OF TENNESSEE VS. KENNETH BRYAN HARRIS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: FRANK LANNOM JOHN KNOX WALKUP 102 East Main Street Attorney General and Reporter Lebanon, TN 37087 KIM R. HELPER Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 TOM P. THOMPSON, JR. District Attorney General WILLIAM REED District Attorney General Pro Tempore 363 Court Street Maryville, TN 37804-5906 Judge:WELLES First Paragraph: The State appeals from three decisions of the Wilson County Criminal Court concerning Defendant Kenneth Bryan Harris. The State contends that the trial court erred by (1) dismissing Defendant's superseding, two-count indictment for attempted first degree murder and aggravated assault; (2) denying the State's motion to nolle prosequi the initial indictment charging aggravated assault; and (3) reversing the district attorney general pro tempore's decision to deny Defendant pretrial diversion for the initial charge of aggravated assault. http://www.tba.org/tba_files/TCCA/Harriskb_opn.WP6 STATE OF TENNESSEE VS. ANNE K. HOSFORD Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN KNOX WALKUP MICHAEL W. RITTER Attorney General & Reporter 131 E. Tyrone Road Oak Ridge, TN 37830 ELLEN POLLACK Assistant Attorney General 425 Fifth Avenue North 2nd Floor, Cordell Hull Bldg. Nashville, TN 37243 JAMES N. RAMSEY District Attorney General 127 Anderson County Courthouse Clinton, TN 37716 JAN HICKS Assistant District Attorney 127 Anderson County Courthouse Clinton, TN 37716 Judge:CLARK First Paragraph: The State of Tennessee appeals as of right from the trial court's remand to the general sessions court of a one-count indictment charging the appellee, Anne K. Hosford, with the misdemeanor offense of driving under the influence of an intoxicant. We modify the judgment of the trial court and dismiss the indictment. http://www.tba.org/tba_files/TCCA/Hosford_doc.WP6 GARY WAYNE LOWE VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Douglas A. Trant John Knox Walkup 900 South Gay Street Attorney General & Reporter Suite 1502 425 Fifth Avenue North Knoxville, TN 37902 Nashville, TN 37243-0493 Erik W. Daab Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 James N. Ramsey District Attorney General 127 Anderson County Courthouse Clinton, TN 37716 Janice G. Hicks Assistant District Attorney General 127 Anderson County Courthouse Clinton, TN 37716 Judge:LAFFERTY First Paragraph: The appellant, Gary Wayne Lowe, referred herein as "the petitioner," appeals as of right from the trial court's dismissal of his petition for post-conviction relief. On July 17, 1979, the petitioner pled guilty to grand larceny before the Anderson County Criminal Court. Pursuant to the plea agreement, the trial court imposed a three-year sentence in the Department of Correction to run concurrently with a pending sentence. In June, 1988, the petitioner filed a petition for post-conviction relief, alleging his 1979 guilty plea was invalid, because he was not advised of his right against compulsory self-incrimination; nor was he warned that the conviction could be used against him to enhance a future sentence. Following an evidentiary hearing, the trial court denied relief. After a thorough review of the entire record, briefs of the parties, and appropriate law, we AFFIRM the trial court's judgment. http://www.tba.org/tba_files/TCCA/Lowegw_opn.WP6 LEONARD LEBRON ROSS VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: JOHN A. SHOAF III 735 Broad Street, Suite 606 Chattanooga, TN 37402-1804 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter ELLEN H. POLLACK Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM H. COX III District Attorney General MARK A. HOOTON Assistant District Attorney General 600 Market Street, Suite 310 Chattanooga, TN 37402 Judge:RILEY First Paragraph: Petitioner appeals the denial of his petition for post-conviction relief. A Hamilton County jury found him guilty of burglary, attempted second degree murder, and especially aggravated robbery. The trial court sentenced petitioner to an effective sentence of thirty-five years. Petitioner now claims he received ineffective assistance of counsel. Upon a complete review of the record, we conclude the evidence does not preponderate against the post-conviction court's findings that counsel was effective. Thus, we AFFIRM the dismissal of the petition. http://www.tba.org/tba_files/TCCA/Rossll_opn.WP6 STATE OF TENNESSEE VS. MARK ALLEN SEYLER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOSEPH L. HORNICK JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 98 Church St., Suite 1 Dickson, TN 37055 DARYL J. BRAND Associate Solicitor General 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 DAN MITCHUM ALSOBROOKS District Attorney General SUZANNE M. LOCKERT Assistant District Attorney Court Square, P.O. Box 580 Charlotte, TN 37036-0580 Judge:WITT First Paragraph: The defendant, Mark Allen Seyler, appeals from his conviction for vandalism in the Dickson County Circuit Court. The trial court imposed a sentence of eleven months, 29 days to be served in the Dickson County Jail. In this direct appeal, the defendant raises three issues: I. Whether there was sufficient evidence to convict the defendant of vandalism. II. Whether the trial court erred in allowing the state to introduce evidence concerning the defendant's prior arrests for misdemeanors. III. Whether the trial court erred in allowing the defendant to be seen by the jury in leg-irons. After a review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Seylerma_opn.WP6 PLEASE FORWARD THIS EMAIL! 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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