April 25, 2000 Volume 6 -- Number 061 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):   02 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 00 New Opinion(s) from the Tennessee Court of Appeals 06 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. Lucian T. Pera Editor-in-Chief, TBALink STEPHEN EARL CRABTREE v. NANCY CHOPPIN CRABTREE Court:TSC Attorneys: Mike W. Binkley, Nashville, Tennessee, for the Appellant, Stephen Earl Crabtree. Edward M. Yarbrough, Nashville, Tennessee, for the Appellee, Nancy Choppin Crabtree Judge: HOLDER First Paragraph: We granted this appeal to address whether a trial court may order concurrent or successive awards of alimony in futuro and rehabilitative alimony in the initial decree of divorce. We hold that the trial court erred in awarding alimony in futuro following a period of rehabilitative alimony. We modify the award of alimony in this case to a single award of rehabilitative alimony in the amount of $2,500 per month for a period of five years. As provided by statute, the trial court will retain jurisdiction for the duration of the rehabilitative alimony award. The awards of attorney's fees are affirmed, and the case is remanded for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/crabtree.wpd ADOLPH C. LAVIN, et al. v. ROSS JORDON, et al. WITH DISSENTING OPINION Court:TSC Attorneys: John L. Norris, Nashville, Tennessee, for Appellants, Ross Jordon, Susan Jordon, and Sean Jordon. Charles R. Ray, Nashville, Tennessee; Jeffery S. Frensley, Nashville, Tennessee, for Appellees, Adolph C. Lavin and Jean Lavin. Judge: BARKER First Paragraph: The nature of this appeal regards the amount of damages recoverable in an action against parents for the intentional damage caused by their children. More specifically, we granted this appeal to determine whether Tennessee Code Annotated section 37-10-103(a) represents a codification of the common law tort allowing unlimited damages, or whether section 37-10-103(a) merely sets forth the circumstances under which parents may be held liable and is therefore subject to the statutory cap on damages contained in section 37-10-102. For the reasons stated herein, we hold that the legislature intended for section 37-10-103(a) to set forth the basis of parental liability and not to provide for an independent cause of action. We further hold that the common law tort of negligent control and supervision of children, as recognized by Bocock v. Rose, 213 Tenn. 195, 373 S.W.2d 441 (1963), has been superseded by section 37-10-103 when the damage caused by the child was intentional or malicious. As such, any recovery against parents for the intentional or malicious harm caused by their children may not exceed $10,000 in addition to taxable court costs. We are constrained to reverse the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/LavinJ_opn.wpd DISSENTING OPINION: http://www.tba.org/tba_files/TSC/LavinJ_dis.wpd STATE OF TENNESSEE v. LISA MARIE GARREN Court:TCCA Attorneys: Raymond Mack Garner, District Public Defender, Maryville, Tennessee (At Trial); Julie A. Rice, Knoxville, Tennessee (On Appeal), for the appellant, Lisa Marie Garren. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussman, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Edward P. Bailey, Jr., Assistant District Attorney, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A jury found the defendant, Lisa Marie Garren, guilty of misdemeanor theft of property. The proof established that the defendant stole a red Mickey Mouse sweatshirt from Proffitts Department Store. The defendant contends that the evidence is insufficient and that the trial court erred by imposing a one-thousand-dollar fine. We hold that the evidence is sufficient and that the fine is not excessive. http://www.tba.org/tba_files/TCCA/garrenlm.wpd STATE OF TENNESSEE, v. JAMES GEDDINGS Court:TCCA Attorneys: Charles N. Griffith, Waverly, Tennessee, for the appellant, James Geddings. Paul G. Summers, Attorney General and Reporter, and David H. Findley, Assistant Attorney General for appellee, State of Tennessee. Judge: SMITH First Paragraph: Following a guilty plea to theft over $1000.00 the defendant, James Geddings, was sentenced to four years incarceration by The Circuit Court, Dickson County, Allen W. Wallace, J, and the defendant appealed. The Court of Criminal Appeals, Smith J., held that (1) the trial court's failure to state which enhancement and mitigating factors applied to the defendant entitled the defendant to a de novo review of his sentence; (2) the enhancement and mitigating circumstances mandated a three-year sentence; and (3) alternative sentencing was inappropriate. Affirmed as modified. http://www.tba.org/tba_files/TCCA/geddingsj.wpd RONNIE RAY HOOVER v. STATE OF TENNESSEE Court:TCCA Attorneys: John E. Appman, Jamestown, Tennessee, for the appellant, Ronnie Ray Hoover. Paul G. Summers, Attorney General & Reporter; R. Stephen Jobe, Assistant Attorney General; William Edward Gibson, District Attorney General; and Anthony J. Craighead, Assistant Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: In this post-conviction appeal following convictions for vehicular homicide by intoxication and vehicular assault, the petitioner, Ronnie Ray Hoover, claims that his attorney was ineffective for failing to interview the only defense witness until the morning of trial and failing to visit the scene of the accident. The petitioner also states numerous other grounds for post-conviction relief in his statement of the issues but does not present these grounds in the argument section of his brief. We view those issues not presented in the argument section to be meritless, and we further hold that with respect to the issues presented, the petitioner has failed to demonstrate prejudice. Thus, we affirm the trial court's denial of the post-conviction petition. http://www.tba.org/tba_files/TCCA/Hooverrr.wpd SAMMIE EUGENE RICE v. STATE OF TENNESSEE Court:TCCA Attorneys: Sammie Eugene Rice, N.E.C.C., Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and Kathy Morante, Deputy Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner filed a petition for writ of habeas corpus, claiming that it was double jeopardy for him to be sentenced, following his guilty pleas, to both second degree murder and assault with intent to commit second degree murder, because only one person was killed. However, the records from his previous petitions for post-conviction relief show that he pled guilty to killing his wife and attempting to kill his wife's brother. Based upon our review, we conclude that there was no basis for granting relief and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/ricese.wpd STATE OF TENNESSEE v. JAMES M. SMITH Court:TCCA Attorneys: E. Covington Johnston, Jr., Franklin, Tennessee, attorney for appellant, James M. Smith Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Marvin E. Clements, Jr., Assistant Attorney General, Ronald L. Davis, District Attorney General, and Jeff Burks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: Following entry of a guilty plea to violation of the Motor Vehicle Habitual Offender's Act, the appellant, James M. Smith, was sentenced to two years in a community based alternative program and was ordered to serve ninety days in the county jail. In this appeal pursuant to Tenn. R. App. P. 3(b), he contends that the trial court erred by failing to impose a totally non-incarcerative sentencing alternative. After performing a de novo review, we conclude that the record supports the trial court's conclusion that some period of confinement is necessary. http://www.tba.org/tba_files/TCCA/SmithJaM.wpd STATE OF TENNESSEE, v. CORNELIUS STARKS Court:TCCA Attorneys: Margaret C. Lamb, Tullahoma, Tennessee for Appellant, Cornelius Starks. Paul G. Summers, Attorney General & Reporter, Todd R. Kelley, Assistant Attorney General, Nashville, Tennessee, Mickey Layne, District Attorney General and Kenneth Shelton, Assistant Attorney General, Manchester, Tennessee for the Appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Cornelius Starks, pled guilty in the Coffee County Circuit Court to three (3) counts of the sale of more than 0.5 grams of cocaine, a Class B felony, and one (1) count of the sale of less than 0.5 grams of cocaine, a Class C felony. The trial court sentenced the appellant as a Range II offender to concurrent terms of sixteen (16) years for each count of the sale of more than 0.5 grams of cocaine and ten (10) years for the sale of less than 0.5 grams of cocaine. On appeal, the appellant argues that the trial court imposed excessive sentences and erred in denying alternative sentencing. After a thorough review of the record before this Court, we conclude that the trial court considered relevant enhancement and mitigating factors and imposed an appropriate term of years. We also hold that given the appellant's lack of truthfulness and failed past efforts at rehabilitation, alternative sentencing was not warranted in this case. Therefore, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/starksc.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. 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