July 14, 1999 Volume 5 -- Number 098 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):   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 10 New Opinion(s) from the Tennessee Court of Appeals 09 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 WILLIAM K. BUCHANAN, JR. VS. KATHY YOUNG and DONNIE YOUNG Court:TCA Attorneys: Steven D. Brown, Chattanooga, for the Appellant. James W. McKenzie, Dayton, for the Appellee. Judge:INMAN First Paragraph: The plaintiff, a resident of Hawaii, contracted to buy D & K Auto Salvage from the defendants in August 1994, for $450,000.00. He employed Tom Gargone to manage the business. The transaction was reduced to writing by Gargone. The contract provided that the plaintiff would pay $15,000.00 cash down, and the balance in 30 days. http://www.tba.org/tba_files/TCA/Buchanan_ca3.WP6 JINNY MYRA JACKSON VS. GARI SHELDON ALDRIDGE Court:TCA Attorneys: For Plaintiff/Appellee: For Defendant/Appellant: Markley Runyon Gill Gari Sheldon Aldridge Runyon & Runyon Pro Se Erin, Tennessee Judge:KOCH First Paragraph: This appeal involves the annulment of a four-year marriage. After the wife obtained the annulment judgment in the Chancery Court for Montgomery County, the husband moved to set aside the judgment on the ground that he had not been properly served. The trial court denied the motion, and the husband has appealed. We affirm the judgment because the husband has failed to produce sufficient proof to overcome the presumption that he was properly served. http://www.tba.org/tba_files/TCA/Jacksonj_opn.WP6 WILLIAM J. LOGAN VS. HEISKELL WINSTEAD Court:TCA Attorneys: William J. Logan, Pro Se, Appellant Thomas L. Kilday, Greeneville, for the Appellee. Judge:INMAN First Paragraph: This is a legal malpractice action arising out of a criminal case. The plaintiff was indicted on June 3, 1996 in the Criminal Court for Hawkins County on three counts: (1) simple possession of cocaine, (2) possession of a controlled substance with intent to sell, and (3) tampering with evidence. The case was tried in the Criminal Court for Hawkins County on June 20, 1996 and plaintiff was convicted of the two drug-related felony counts with the misdemeanor charge being voluntarily dismissed upon motion of the State. The plaintiff filed this pro se complaint for legal malpractice against defendant in the Chancery Court for Hawkins County on April 9, 1998, and defendant filed a Motion for Summary Judgment, which the trial court granted. We affirm. http://www.tba.org/tba_files/TCA/Logan-wm_ca3.WP6 STATE OF TENNESSEE ex rel. CYNTHIA ARLENE MASSENGALE VS. JERRY CLEVELAND MASSENGALE Court:TCA Attorneys: Paul G. Summers ATTORNEY GENERAL & REPORTER Tammy L. Kennedy ASSISTANT ATTORNEY GENERAL 425 5th Avenue, North Second Floor, Cordell Hull Building Nashville, TN 37243 Attorneys for Plaintiff-Appellant Geary P. Dillon, Jr. P.O. Box 130 Whitwell, TN 37397 Attorney for Defendant-Appellee Judge:GODDARD First Paragraph: This is an appeal from a court order to reduce child support. The Trial Court granted Jerry Massengale, the Defendant-Appellee, a reduction in his child support obligation from $150 per week to $117 per week. The State of Tennessee, the Plaintiff-Appellant presents for our consideration the following issue: Whether the trial court erred in modifying current child support downward where the variance between the amount of support under the Tennessee Child Support Guidelines and the current order of support resulted from a previously ordered deviation, and the proponent of the modification failed to prove by a preponderance of the evidence that the circumstances which caused the deviation had changed. http://www.tba.org/tba_files/TCA/Massency_opn.WP6 PATRICIA A. MERLO VS. G. PATRICK MAXWELL, M.D. and NASHVILLE PLASTIC SURGERY, LTD Court:TCA Attorneys: Robert L. Huskey 514 Hillsboro Blvd. Manchester, TN 37355 Attorney for Plaintiff-Appellant Noel F. Stahl E. Todd Presnell Bryan K. Williams CORNELIUS & COLLINS, LLP 511 Union Street, Suite 2700 Nashville, TN 37219 Judge:GODDARD First Paragraph: Patricia A. Merlo appeals the dismissal of her suit alleging medical malpractice against Patrick Maxwell, M.D., and the Nashville Plastic Surgery, Ltd., by summary judgment. Ms. Merlo brought suit alleging Dr. Maxwell failed to obtain her informed consent for the use of silicone implants during multiple breast reconstruction surgeries and further that Dr. Maxwell negligently chose to use silicone implants rather than saline. The Circuit Court of Davidson County dismissed Ms. Merlo's claims finding, as a matter of law, that Ms. Merlo's claims were barred on their face by the three-year statute of repose. http://www.tba.org/tba_files/TCA/Merlopat_opn.WP6 DEVENE SCROGGINS VS. CHARITY L. GOSS Court:TCA Attorneys: JOHN S. COLLEY, III COLLEY & COLLEY Columbia, Tennessee Attorney for Appellant PATRICK S. BUTLER Collinwood, Tennessee Attorney for Appellee Judge:HIGHERS First Paragraph: Charity L. Goss ("Goss" or "Appellant") appeals from the trial court's denial of Goss's Motion to Dismiss the Complaint of Devene Scroggins ("Scroggins" or "Appellee"). http://www.tba.org/tba_files/TCA/Scrogind_opn.WP6 HOWELL H. SHERROD, JR. VS. ANN MOONEYHAN, Executrix for the Estate of JERRY A. MOONEYHAN, and ANN MOONEYHAN Court:TCA Attorneys: Thomas Jessee, Johnson City, for the Appellant. Robert D. Arnold, Johnson City, for the Appellee. Judge:INMAN First Paragraph: This is an action tried to a jury for damages for breach of contract relating to the ownership and sale of capital stock in a corporation styled Quality Dental Products. Alternatively, the plaintiff alleged that the defendant negligently or intentionally induced him to execute an assignment of the plaintiff's interest in the company for the purpose of facilitating the financing of the business of the parties. The defendant filed a general denial of the material allegations of the complaint. He died May 28, 1997 and his Executrix was substituted as the defendant. http://www.tba.org/tba_files/TCA/Sherrod_ca3.WP6 WINDON H. TAYLOR and SARAH A. TAYLOR VS. T and N OFFICE EQUIPMENT, INC., JERALD W. NICHOLS and GAYLE J. NICHOLS Court:TCA Attorneys: For Appellant For Appellee LARRY L. CRAIN LOUIS W. OLIVER, III Brentwood, Tennessee Hendersonville, Tennessee Judge:SUSANO First Paragraph: When this case was first before us, we concluded that the trial court had failed to conduct a proper hearing on the subject of the attorney's fees to which the appellees were entitled under the terms of the promissory note at issue in this case. We remanded this case to the trial court to hold such a hearing. The only issue now before us on this second appeal is whether the trial court's subsequent award of attorney's fees of $11,960.13 is reasonable, considering the criteria set forth in Disciplinary Rule 2-106(B) of the Code of Professional Responsibility (Rule 8, Rules of the Supreme Court). Our de novo review of the record of the proceedings below convinces us that the evidence does not preponderate against the trial court's determination of a reasonable fee in this case. See Rule 13(d), T.R.A.P. http://www.tba.org/tba_files/TCA/Taylrwh_opn.WP6 HAZEL THREET VS. OPRYLAND, USA, INC. Court:TCA Attorneys: MALCOLM L. McCUNE BLACKBURN, SLOBEY, FREEMAN & HAPPEL Nashville, Tennessee JAMES W. NOBLES, JR. Jackson, Mississippi Attorneys for Appellant DIANNA BAKER SHEW FARRIS, WARFIELD & KANADAY Nashville, Tennessee Attorney for Appellee Judge:HIGHERS First Paragraph: Plaintiff Hazel Threet ("Threet" or "Appellant") appeals the judgment of the trial court which granted summary judgment to Opryland, USA, Inc. ("Opryland" or "Appellee"), dismissing the Complaint of Threet. http://www.tba.org/tba_files/TCA/Threetha_opn.WP6 STELLA WOODY VS. ROY ALLEN JOHNSON and GREENEVILLE OIL & PETROLEUM COMPANY, INC. Court:TCA Attorneys: Richard M. Currie, Jr., Kingsport, for Appellants. Charles R. Terry, Morristown; W. Lewis Jenkins, Jr., Dyersburg; and Douglas T. Jenkins, Rogersville, for Appellee. Judge:INMAN First Paragraph: This is an action for damages for the alleged erection and maintenance of a private temporary nuisance affecting the plaintiff's property. The jury returned a verdict for the plaintiff for damages for the years 1995 - 1996 in the amount of $50,000.00. The motion of the defendant for judgment NOV or for a new trial was overruled. This appeal resulted. http://www.tba.org/tba_files/TCA/Woody_ca3.WP6 STATE OF TENNESSEE VS. KELVIN D. BURKE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: TERRY J. CANADY PAUL G. SUMMERS 211 Printer's Alley Building Attorney General and Reporter Suite 400 Nashville, TN 37201 CLINTON J. MORGAN Counsel for the State 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON District Attorney General MARY HAUSMAN CHRIS BUFORD Assistant District Attorneys Washington Square Building 222 Second Avenue North Nashville, TN 37201-1649 Judge:SMITH First Paragraph: The appellant, Kelvin D. Burke, was convicted by a Davidson County jury of one (1) count of especially aggravated robbery, a Class A felony. The trial court sentenced him to twenty-two (22) years incarceration. On appeal, the appellant claims that the evidence is insufficient to support the jury's finding of guilt. After a thorough review of the record before this Court, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Burkekel_opn.WP6 STATE OF TENNESSEE VS. ANAND FRANKLIN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: TERRY J. CANADY MICHAEL E. MOORE 211 Printer's Alley Building Solicitor General Suite 400 Nashville, TN 37201 LUCIAN D. GEISE Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON District Attorney General WILLIAM REED Assistant District Attorney 222 2nd Avenue, North Nashville, TN 37201 Judge:SMITH First Paragraph: The appellant, Anand Franklin, was convicted by a Davidson County jury of one (1) count of aggravated sexual battery, a Class B felony. The trial court sentenced him as a Range I offender to eight (8) years incarceration. On appeal, the appellant claims that the evidence presented at trial was insufficient to establish guilt beyond a reasonable doubt. After a thorough review of the record before this Court, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/Frankana_opn.WP6 STATE OF TENNESSEE VS. JERRY WAYNE GIFFORD Court:TCCA Attorneys: FOR THE APPELLANT: PHILIP A. CONDRA District Public Defender FRANCIS W. PRYOR Assistant District Public Defender P.O. Box 220 Jasper, TN 37347-0220 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter MARVIN E. CLEMENTS, JR. Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 JAMES MICHAEL TAYLOR District Attorney General WILLIAM B. COPELAND Assistant District Attorney General 265 Third Avenue, Suite 300 Dayton, TN 37321 Judge:RILEY First Paragraph: A Franklin County jury convicted defendant of aggravated burglary, a Class C felony, and theft of property over $1000, a Class D felony. The sole issue in this appeal as of right is the propriety of the trial court's ruling that defendant's prior felony marijuana conviction was admissible for purposes of impeachment. Based upon our review of the record, we AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Giffordj_opn.WP6 STATE OF TENNESSEE VS. ERVIN LEE HAYES Court:TCCA Attorneys: For the Appellant: For the Appellee: J. Michael Engle Paul G. Summers Assistant Public Defender Attorney General of Tennessee 1202 Stahlman Building and Nashville, TN 37201 Clinton J. Morgan (AT TRIAL) Asst Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 Jeffrey A. DeVasher Assistant Public Defender Victor S. Johnson, III 1202 Stahlman Building District Attorney General Nashville, TN 37201 and (ON APPEAL) Dan Hamm Asst District Attorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649 and Sharon Brox Assistant District Attorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649 Judge:TIPTON First Paragraph: The defendant, Ervin Lee Hayes, appeals as of right from his convictions by a jury in the Davidson County Criminal Court for two counts of attempted first degree murder, a Class A felony. He was sentenced as a Range II, multiple offender to thirty-five years confinement in the custody of the Department of Correction for each count to be served consecutively. The defendant contends that (1) the evidence is insufficient to support his convictions, and (2) the trial court erred by imposing an excessive sentence and by ordering consecutive sentences. We affirm the judgments of conviction. http://www.tba.org/tba_files/TCCA/Hayesel_opn.WP6 CHARLES K. HUNTER VS. RICKY BELL, WARDEN Court:TCCA Attorneys: FOR THE APPELLANT: CHARLES K. HUNTER, Pro Se T.D.O.C. No. 163309 Riverbend Maximum Security Institute Unit 6-A-210 7475 Cockrill Bend Road Nashville, TN 37209-1010 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter MARVIN E. CLEMENTS, JR. KAREN M. YACUZZO Assistant Attorneys General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON III District Attorney General Washington Square 222 Second Avenue N, Ste. 500 Nashville, TN 37201-1649 Judge:RILEY First Paragraph: Petitioner, Charles K. Hunter, appeals as of right the summary dismissal of his petition for writ of habeas corpus. He was indicted for attempted first degree murder and pled guilty to the amended charge of aggravated assault. The sole issue is whether his conviction is void since aggravated assault is not a lesser offense of attempted first degree murder. Since the indictment was amended by consent to include aggravated assault, we AFFIRM the trial court's summary dismissal of the petition. http://www.tba.org/tba_files/TCCA/Hunterck_opn.WP6 ALBERT JONES VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: RAYBURN MCGOWAN, JR. JOHN KNOX WALKUP 500 Wilson Pike Circle Attorney General and Reporter Suite F-218 Brentwood, TN 37027 DARYL J. BRAND Associate Solicitor General 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON District Attorney General LISA NAYLOR Assistant District Attorney 222 Second Avenue, North Nashville, TN 37201 Judge:SMITH First Paragraph: The petitioner, Albert Jones, appeals the order from the Davidson County Criminal Court denying his petition for writ of habeas corpus. The petitioner is presently serving a twenty (20) year sentence as a result of his guilty plea to aggravated rape in the Cheatham County Circuit Court in May 1989. In 1996, he filed this petition for writ of habeas corpus alleging that the Cheatham County Circuit Court was without jurisdiction to convict him because he was denied his right to a juvenile transfer hearing, and he did not knowingly and voluntarily waive that right. He further claims that the police illegally questioned him in violation of his right to counsel and his right to due process of law. After an evidentiary hearing, the trial court denied the petition. After a thorough review of the record before this Court, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Jonesalb_opn.WP6 STATE OF TENNESSEE VS. ANTHONY T. JONES Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: THOMAS SLAUGHTER PAUL G. SUMMERS 501 Clinch Avenue, 3rd Floor Attorney General & Reporter Knoxville, TN 37902 ERIK W. DAAB Assistant Attorney General 425 Fifth Avenue North Nashville, TN 337243 RANDALL E. NICHOLS District Attorney General ROBERT JOLLEY Assistant District Attorney City-County Building Knoxville, TN 37902 Judge:SMITH First Paragraph: On October 1, 1997, the Knox County Grand Jury indicted Appellant Anthony T. Jones for one count of aggravated robbery. After a jury trial on May 11, 1998, Appellant was convicted of aggravated robbery. After a sentencing hearing on June 5, 1998, the trial court sentenced Appellant as a Range I standard offender to a term of twelve years in the Tennessee Department of Correction. http://www.tba.org/tba_files/TCCA/Jonesant_opn.WP6 STATE OF TENNESSEE VS. JENNIFER NUNLEY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ROBERT S. PETERS PAUL G. SUMMERS Swafford, Peters & Priest Attorney General & Reporter 100 First Ave., S.W. Winchester, TN 37398 GEORGIA BLYTHE FELNER Assistant Attorney General 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 C. MICHAEL LAYNE District Attorney General KENNETH SHELTON, JR. Assistant District Attorney 307 S. Woodland, P.O. Box 147 Manchester, TN 37349 Judge:WITT First Paragraph: The defendant, Jennifer Nunley, appeals from her sentence imposed for facilitation of possession of cocaine more than .5 grams, a Class C felony, in the Coffee County Circuit Court. The trial court imposed a sentence of three years to be served in the Community Corrections program after 60 days of confinement in the county jail. In this direct appeal, the defendant contends that the trial court should have placed her immediately into the Community Corrections program without a period of confinement. After a review of the record, the briefs of the parties, and the applicable law, we affirm the sentence. http://www.tba.org/tba_files/TCCA/Nunleyj_opn.WP6 STATE OF TENNESSEE VS. ALFRED TERRY PECK Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ARDENA J. GARTH PAUL G. SUMMERS District Public Defender Attorney General & Reporter DONNA ROBINSON MILLER MARVIN S. BLAIR, JR. Asst District Public Defender Assistant Attorney General Suite 300, 701 Cherry Street 425 Fifth Avenue North Chattanooga, TN 37402 Nashville, TN 37243-0493 WILLIAM H. COX III District Attorney General C. LELAND DAVIS Assistant District Attorney General 600 Market Street, Suite 310 Chattanooga, TN 37402 Judge:WILLIAMS First Paragraph: The petitioner, Alfred Terry Peck, appeals from the trial court's denying his motion to reopen a petition for post-conviction relief. In 1983, the petitioner was convicted by a Hamilton County jury of aggravated rape. He subsequently filed a petition for post-conviction relief in 1985, which was denied. In his motion, he alleged that the Court of Criminal Appeals holding in State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. filed June 25, 1996, at Nashville), established a constitutional right not recognized at the time of his trial but requiring retrospective application to his case. On January 9, 1996, the trial court dismissed the motion to reopen. http://www.tba.org/tba_files/TCCA/Peckalfd_opn.WP6 PLEASE FORWARD THIS EMAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. 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