July 20, 1999 Volume 5 -- Number 101 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 04 New Opinion(s) from the Tennessee Court of Appeals 05 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   JAMES MARCUS CARR and wife, MARY GENE CAMPBELL CARR VS. JOHNNY ALLEN MOORE Court:TCA Attorneys: LESLIE B. MCWILLIAMS SUITE 3900 6100 BUILDING CHATTANOOGA, TENNESSEE 37411 ATTORNEY FOR PETITIONERS/APPELLANTS CAROL ANN BARRON 264 THIRD AVENUE DAYTON, TENNESSEE ATTORNEY FOR RESPONDENT/APPELLEE Judge:COTTRELL First Paragraph: James Marcus Carr and his wife Mary Gene Campbell Carr ("Appellants") commenced the underlying action by filing a petition for adoption of the latter's minor child, M.C.M. The petition, which alleged that James Marcus Carr acquired custody of the child upon his marriage to M.C.M.'s mother, sought to terminate the parental rights of M.C.M.'s father, Johnny Allen Moore ("Appellee"). The trial court initially terminated Mr. Moore's parental rights pursuant to Tenn. Code Ann. S 36-1-102 for failure to pay child support for more than four months immediately preceding the filing of the petition for adoption. However, after considering Mr. Moore's motion to alter or amend the judgment, the trial court retracted that decision and rejected Appellants' petition. Appellants appeal the trial court's refusal to terminate Appellee's parental rights, asserting two errors. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/Carr_opn.WP6 GUY FLOYD VS. CLUB SYSTEMS OF TENNESSEE, INC., d/b/a THE CLUB AT GREEN HILLS Court:TCA Attorneys: PHILIP N. ELBERT DONNA L. DeLONG Neal & Harwell 2000 First Union Tower 150 Fourth Avenue North Nashville, Tennessee 37219-2498 ATTORNEYS FOR PLAINTIFF/APPELLANT WALTER W. BUSSART Bussart & Medley 520 North Ellington Parkway P. O. Box 2456 Lewisburg, Tennessee 37091-1456 ATTONEY FOR DEFENDANT/APPELLEE Judge:CAIN First Paragraph: This action arises out of personal injuries sustained by the plaintiff while using the weight equipment at the defendant health club. The plaintiff brought suit claiming that the defendant was negligent in its failure to properly inspect, repair and maintain its weight equipment. In addition, the plaintiff alleged that the defendant had willfully, wantonly, recklessly and intentionally removed the safety devices from the equipment at issue. The defendant health club moved for summary judgment on the basis that the plaintiff had signed an exculpatory clause by which he expressly assumed the risk of negligence. The plaintiff opposed summary judgment arguing that this exculpatory clause violated public policy. The trial court granted summary judgment finding first that the exculpatory clause was valid and second that there was no evidence to support the plaintiff's allegation that the defendant had engaged in willful, wanton and reckless behavior. On appeal, we affirm the decision of the trial court in all respects. http://www.tba.org/tba_files/TCA/Floydguy_opn.WP6 DR. & MRS. WENTWORTH S. MORRIS and MARY MAURICIA MORRIS VS. STATE OF TENNESSEE Court:TCA Attorneys: HELEN LOFTIN CORNELL 3635 Woodmont Boulevard Nashville, Tennessee 37215 ATTORNEY FOR PLAINTIFFS/APPELLANTS JOHN KNOX WALKUP Attorney General & Reporter MICHAEL E. MOORE Solicitor General MEREDITH DEVAULT Civil Rights and Claims Division Cordell Hull Building, Second Floor 425 Fifth Avenue North Nashville, Tennessee 37243 ATTORNEYS FOR DEFENDANT/APPELLEE Judge:CAIN First Paragraph: This case involves the claims of a husband and wife and their adult daughter who were all three living together in one home. Following an incident involving the discharge of a firearm, the adult daughter was arrested and delivered to Middle Tennessee Mental Health Institute ("MTMHI") for forensic examination to determine her competence to stand trial. After her release from MTMHI, the daughter filed claim with the Tennessee Claims Commission alleging rape, unlawful confinement, physical abuse and drug abuse. The parents likewise filed claim with the Claims Commission alleging loss of companionship, society and services, together with medical and other expenses relative to their adult daughter. Almost seven years later, the Claims Commission granted summary judgment to the State on the claims of the parents and dismissed with prejudice, under Rule 41(.02), the claim of the daughter for failure to prosecute her claim and failure to comply with discovery requirements. All the claimants have appealed to this court where we affirm the judgment of the trial court in all respects. http://www.tba.org/tba_files/TCA/Morriswn_opn.WP6 TONYA A. PARKER VS. CONWOOD COMPANY, L.P Court:TCA Attorneys: STEVE R. DARNELL Bateman, Bateman & Darnell 101 North Third Street Clarksville, Tennessee 37040 ATTORNEY FOR PLAINTIFF/APPELLANT ROGER A. MANESS 114 South Second Street P. O. Box 1149 Clarksville, Tennessee 37041-1149 ATTORNEY FOR DEFENDANT/APPELLEE Judge:CAIN First Paragraph: Appellant Tonya Parker began work for Conwood, L.P., in the Garrett Building of Conwood's facility in Clarksville on or about July 22, 1994. In October of 1996, Ms. Parker filed a formal complaint with Conwood General Foreman Tommy Porter which alleged in essence that Ms. Parker had been the victim of offensive sexual touching at the hands of Samuel Anderson, one of Conwood's employees. This offensive contact had apparently occurred on or about October 7, 1996, in the presence of at least one other coworker and one of her supervisors, Mr. Bruce Beizer. The most direct result of this complaint was a written warning issued to Mr. Anderson, referencing Conwood's sexual harassment policy and threatening termination if his behavior did not improve. http://www.tba.org/tba_files/TCA/Parkert_opn.WP6 STATE OF TENNESSEE VS. TIMOTHY ACKLIN Court:TCCA Attorneys: FOR THE APPELLANT: MICHAEL R. JONES District Public Defender RUSSEL A. CHURCH Assistant District Public Defender 109 S. Second St. Clarksville, TN 37040 FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter KIM R. HELPER Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 JOHN WESLEY CARNEY, JR. District Attorney General ARTHUR F. BIEBER Assistant District Attorney General 204 Franklin St., Suite 200 Clarksville, TN 37040-3420 Judge:RILEY First Paragraph: The defendant, Timothy Acklin, was convicted by a Montgomery County jury of aggravated rape and aggravated robbery. The trial court sentenced him as a Range I standard offender to twenty-one years for aggravated rape and nine years for aggravated robbery. The sentences were ordered to run consecutively. In this appeal as of right, the defendant raises two issues: 1. whether he is entitled to a new trial in order to obtain a DNA expert; and 2. whether the trial court erred in ordering his sentences to run consecutively. Upon our review of the record, we AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Acklint_opn.WP6 DARRELL W. LUNSFORD VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DOUGLAS A. TRANT, ESQUIRE PAUL G. SUMMERS 900 South Gay Street Attorney General & Reporter Suite 1502 Knoxville, TN 37902 R. STEPHEN JOBE Assistant Attorney General 425 Fifth Avenue North 2nd Floor, Cordell Hull Bldg. Nashville, TN 37243 AL. C. SCHMUTZER, JR. District Attorney General WILLIAM B. MARSH Assistant District Attorney 339 East Main Street Newport, TN 37821 Judge:CLARK First Paragraph: Appellant appeals as of right the trial court's dismissal after a hearing of his post-conviction petition. He raises one issue on appeal: whether he was denied due process of law and effective assistance of counsel as the result of erroneous advice given by the trial court and counsel as to when he becomes eligible for parole when serving a life sentence. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Lunsford_doc.WP6 STATE OF TENNESSEE VS. DONNIE DEAN ROLIN Court:TCCA Attorneys: FOR THE APPELLANT: V. MICHAEL FOX 315 Deaderick Street First American Center, 20th Floor Nashville, TN 37238-2075 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter LUCIAN D. GEISE Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON III District Attorney General ROGER D. MOORE Assistant District Attorney General Washington Square 222-2nd Avenue North, Suite 500 Nashville, TN 37201-1649 Judge:RILEY First Paragraph: Defendant pled guilty to two counts of statutory rape, Class E felonies, and three counts of incest, Class C felonies, with no agreement as to sentencing. The trial court sentenced defendant to two years for each count of statutory rape and five years for each count of incest with all counts running consecutively for an effective sentence of nineteen years. In this appeal as of right, defendant challenges only the imposition of consecutive sentencing. A thorough review of the record reveals no error by the trial court. Therefore, the judgment of the trial court is AFFIRMED. http://www.tba.org/tba_files/TCCA/Rolindd_opn.WP6 STATE OF TENNESSEE VS. TOMMY EDWARD SMITH Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: SAM WALLACE, SR. JOHN KNOX WALKUP 227 Second Avenue N. Attorney General & Reporter Nashville, TN 37201 GEORGIA BLYTHE FELNER Counsel for the State 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. (TORRY) JOHNSON III District Attorney General JOHN C. ZIMMERMAN Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue N. Nashville, TN 37201-1649 Judge:WILLIAMS First Paragraph: The defendant, Tommy Edward Smith, pleaded guilty to three deliveries of cocaine, a Schedule II substance. He twice delivered .5 or more grams of cocaine, and the remaining delivery involved twenty-six or more grams of cocaine. Each violation constituted a separate Class B felony. The Davidson County Criminal Court sentenced the defendant as a Range I offender to three concurrent eight-year sentences in the Tennessee Department of Correction (TDOC). The defendant appeals, asserting that the trial court erroneously denied him Community Corrections. We AFFIRM the trial court's judgment. http://www.tba.org/tba_files/TCCA/Smithtme_opn.WP6 ANTONIO L. SWEATT VS. STATE OF TENNESSEE Court:TCCA ORDER Judge:WOODALL First Paragraph: This matter is before the Court upon the state's motion requesting that the judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules. The appellant opposes the motion. http://www.tba.org/tba_files/TCCA/Sweatta_ord.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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