May 1 , 2000 Volume 6 -- Number 064 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):   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 05 New Opinion(s) from the Tennessee Court of Appeals 12 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 STATE OF TENNESSEE, et al. VS. BROWN & WILLIAMSON TOBACCO CORPORATION, et al. VS. GREGORY BENNETT PERRY and STEVE LLOYD CHAMPION, et al. Court:TSC Attorneys: J. D. Lee and David C. Lee, Knoxville, Tennessee, for intervenors-appellants, Steven Lloyd Champion, et al. Gordon Ball, Knoxville, Tennessee, for intervenors-appellants, Gregory Bennett Perry, et al. John A. Lucas, Knoxville, Tennessee, and Robert G. McDowell and James A. Delanis, Nashville, Tennessee, for appellees, Brown & Williamson Tobacco Corporation, et al., John A. McReynolds, Jr., Knoxville, Tennessee, for appellee Liggett Group Inc. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Russell T. Perkins, Special Deputy for Litigation; Carolyn Underwood Smith, Assistant Attorney General, Nashville, Tennessee, for appellee, State of Tennessee Judge: DROWOTA First Paragraph: The issue in this appeal is whether two groups of individuals should be allowed to intervene in a suit filed by the State of Tennessee against several tobacco product manufacturers. The State's suit against the tobacco defendants sought money damages, declaratory relief, and injunctive relief in connection with the marketing and sale of tobacco products in Tennessee. The trial court (Chancellor Irvin Kilcrease, Jr.) approved a settlement between the State and the tobacco defendants and dismissed the State's complaint. The trial court also rejected attempts to intervene in the State's suit by two groups of individuals, the first seeking damages from tobacco companies for increased medical insurance premiums, and the second consisting of tobacco users seeking damages from tobacco companies and their lawyers seeking attorney's fees. The trial court (Chancellor Carol L. McCoy) dismissed a declaratory judgment action filed by one of the groups of proposed intervenors. Both groups of the proposed intervenors appealed, and this Court granted an expedited appeal under Tenn. Code Ann. S 16-3-201(d). For the reasons explained hereafter, the trial courts are affirmed. http://www.tba.org/tba_files/TSC/BrownWilliamson.wpd SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL Court:TSC http://www.tba.org/tba_files/TSC/CERTLIST_0501.wpd DONALD E. GRIFFIN VS. SHELTER MUTUAL INSURANCE COMPANY Court:TSC Attorneys: Charles Patrick Flynn and Michael K. Radford, Brentwood, Tennessee, for the appellant, Donald E. Griffin. Thomas W. Hardin and Kim B. Kettering, Columbia, Tennessee, for the appellee, Shelter Mutual Insurance Company. Judge: DROWOTA First Paragraph: The appellant, Donald E. Griffin, brought suit seeking damages for injuries he sustained when his vehicle was struck from the rear in Maury County by a car driven by Richard Vaughn. After obtaining a judgment against Vaughn in the amount of $225,000, Griffin learned that Vaughn had only $50,000 of liability insurance coverage. Griffin then requested that his uninsured motorist carrier, the appellee Shelter Mutual Insurance Company ("Shelter"), pay the remainder of the judgment up to its policy limit of $100,000. When Shelter refused the claim, Griffin brought this action against Shelter in the Chancery Court for Davidson County. The Chancellor granted summary judgment to Shelter, finding that Griffin had failed to comply with the notice provisions of the insurance policy and with the service provisions of Tenn. Code Ann. S 56-7-1206(a). The Court of Appeals agreed that Griffin had failed to comply with the service provisions of Tenn. Code Ann. S 56-7-1206(a) and thus affirmed the grant of summary judgment in favor of Shelter. This Court thereafter granted Griffin's application for permission to appeal. http://www.tba.org/tba_files/TSC/griffindeopn.wpd KENNETH L. STOREY VS. RANDALL E. NICHOLS, et al. Court:TSC Attorneys: Kenneth L. Storey, Henning, Tennessee, Pro Se Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Meredith DeVault, Senior Counsel, for the Appellees, Randall E. Nichols, et al. Judge: HOLDER First Paragraph: The dispositive issue in this case is whether an appeal as of right from a trial court's judgment in an attorney-disciplinary proceeding initiated pursuant to Tenn. Code Ann. SS 23-3-201-204 lies in the Court of Appeals or in the Supreme Court. Because we hold that jurisdiction over an appeal as of right in a statutory disciplinary proceeding lies in the Court of Appeals, we reverse the intermediate appellate court's order transferring the case to the Supreme Court, and we transfer the case to the Court of Appeals for its review on the merits. http://www.tba.org/tba_files/TSC/storeykl.wpd CHARLES THURMAN VS. MAYTAG COOKING PRODUCTS, INC. Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Denny B. Mobbs Douglas W. Hutson P.O. Box 192 114 _ East Washington Avenue 55 _ First Street, NE (37311) Athens, TN 37303 Cleveland, TN 37364-0192 Judge: BYERS First Paragraph: The trial judge found the plaintiff had sustained a twenty five percent permanent partial disability to the right upper arm. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/thurman.wpd BANK OF GLEASON, GLEASON, TENNESSEE VS. WEAKLEY FARMERS COOPERATIVE, INC. Court:TCA Attorneys: Stephen L. Hughes, KIZER, BONDS & HUGHES, Milan, Tennessee, for Appellant H. Max Speight, Dresden, Tennessee, for Appellee Judge: HIGHER First Paragraph: This appeal arises from a complaint filed by the Bank of Gleason seeking to collect the amount due on a promissory note. The Weakley Farmers Cooperative appeals from the judgment of the Weakley County Circuit Court, which found the Bank was entitled to recover under the doctrine of promissory estoppel. For the reasons stated herein, we affirm the trial court decision. http://www.tba.org/tba_files/TCA/bankofgleason.wpd CARROLL D. GRONER VS. ON-SITE GRADING, INC. Court:TCA Attorneys: Arvin H. Reingold, Chattanooga, Tennessee, for the appellant Carroll D. Groner. Don L. Smith, Nashville, Tennessee, for the appellee On-Site Grading, Inc. Judge: SUSANO First Paragraph: This case involves a construction contract. When the plaintiff-owner decided that the project had not been completed in a timely fashion, he terminated the contract and sued the defendant-contractor for breach of contract. The defendant counterclaimed for wrongful termination of the contract. Following a bench trial, the Chancellor found for the defendant as to both claims and awarded damages on the counterclaim. Plaintiff appeals, arguing that the trial court erred in finding that the defendant did not breach the contract and in calculating the award of damages. As modified, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/GRONERCD.wpd KENNETH R. LEWIS VS. LEONARD MIKE CAPUTO Court:TCA Attorneys: Kenneth R. Lewis, Pikeville, Tennessee, Pro Se. Leroy Phillips, Jr., Chattanooga, Tennessee, for the appellee, Leonard Mike Caputo. Judge: SUSANO First Paragraph: The plaintiff sued his former attorney for malpractice and breach of contract. The trial court dismissed the complaint, finding that the suit was filed beyond the period of the applicable statute of limitations. We affirm. http://www.tba.org/tba_files/TCA/LEWISKR.wpd PENNY SUE MINCY VS. CHARLES DAVID MINCY, SR. Court:TCA Attorneys: Martha Meares and Anne M. Stair, Maryville, Tennessee, for the appellant, Penny Sue Mincy. H. Allen Bray, Maryville, Tennessee, for the appellee, Charles David Mincy, Sr. Judge: SUSANO First Paragraph: This is a divorce case. In the judgment granting a divorce, the trial court awarded the plaintiff, Penny Sue Mincy ("Mother"), custody of the parties' minor children. Thereafter, the parties filed various and sundry post-judgment motions, including the motion of the defendant, Charles David Mincy, Sr. ("Father"), asking the court to reconsider its award of custody and vest the children's custody with him. Following a subsequent hearing, the trial court entered an order, which provides, inter alia, that "[t]he Motion for Change of Custody is granted, based upon the testimony, the total history of the case, and the report of Mr. Tillery, and custody of the parties' minor children shall be with [Father], subject to the Standing Orders of this Court regarding visitation." Mother appeals, arguing (1) the trial court improperly considered the psychological report submitted by Mr. Tillery; (2) the trial court failed to reconsider its final custody determination despite the ineffective legal assistance of Mother's former counsel; and (3) the trial court erred in failing to make findings of fact and conclusions of law. We affirm. http://www.tba.org/tba_files/TCA/MINCYPS.wpd KAREN ANN CARROLL MUNDY VS. JAMES DANNY MUNDY Court:TCA Attorneys: Randy Sellers, Cleveland, Tennessee, for the appellant, James Danny Mundy. Roger E. Jenne, Cleveland, Tennessee, for the appellee, Karen Ann Carroll Mundy. Judge: SUSANO First Paragraph: This is a divorce case. The trial court granted the plaintiff, Karen Ann Carroll Mundy ("Wife"), an absolute divorce; awarded her custody of the parties' two minor children; ordered the defendant, James Danny Mundy ("Husband"), to pay $860 per month child support; divided the marital estate; and awarded to Wife Husband's share of Wife's retirement account as alimony in solido. Husband appeals, challenging (1) the trial court's calculation of his income for the purpose of determining child support; (2) the trial court's division of marital property; (3) the award of Husband's interest in the retirement annuity as alimony in solido; and (4) the award to Wife of attorney's fees. We affirm in part and reverse in part. http://www.tba.org/tba_files/TCA/MUNDYKA.wpd STATE OF TENNESSEE VS. ROBERT BASSETT BROWN Court:TCCA Attorneys: V. Michael Fox, Nashville, Tennessee, for the appellant, Robert Bassett Brown. Paul G. Summers, Attorney General & Reporter, Elizabeth T. Ryan, Assistant Attorney General, Victor S. Johnson, III, District Attorney General, Kristen Shea, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: ACREE First Paragraph: The defendant entered a plea of guilty to DUI reserving a certified question of law pursuant to T.R.Cr.P. 37 (b)(2)(i). The defendant failed to properly reserve the certified question, and, therefore, the appeal is dismissed. http://www.tba.org/tba_files/TCCA/brownrb.wpd STATE OF TENNESSEE VS. LARRY S. BRUMIT Court:TCCA Attorneys: Larry S. Wallace, LaVergne, Tennessee, for the appellant, Larry S. Brumit. Paul G. Summers, Attorney General and Reporter, Mark E. Davidson, Assistant Attorney General, William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant was convicted in the Rutherford County Circuit Court of two counts of first degree murder and one count of conspiracy to commit first degree murder, and he appealed. Court of Criminal Appeals, Welles, J., affirmed, holding that the evidence was sufficient to support the convictions; the trial court did not err by denying Defendant's motion for mistrial concerning jury contamination; the trial court properly ruled on evidentiary issues; violation of the rule of sequestration did not result in prejudice against the Defendant; the trial court did not err by denying the Defendant a free transcript of his co-defendant's trial; and the sentence imposed was proper. http://www.tba.org/tba_files/TCCA/brumitls.wpd STATE OF TENNESSEE VS. JAMES STACY CARROLL Court:TCCA Attorneys: Billy R. Roe, Jr., Assistant District Public Defender, Camden, Tennessee, for the appellant, James Stacy Carroll. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Kim R. Helper, Assistant Attorney General, G. Robert Radford, District Attorney General, and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: The appellant was found guilty by a Carroll County jury of possession of a controlled substance with intent to sell. The sole issue raised in this direct appeal is whether the State asserted a sufficient race-neutral explanation to support its exercise of a peremptory challenge against an African- American juror. We conclude that the State's use of its peremptory challenge was proper and did not violate Article I, Section 8 of the Tennessee Constitution and the Fourteenth Amendment to the United States Constitution. Accordingly, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/CARROL~1.wpd STATE OF TENNESSEE VS. JASON C. CARTER, et al. Court:TCCA Attorneys: Lionel R. Barrett, Jr., Nashville, Tennessee, for the appellant, Jason C. Carter Paul J. Bruno, Nashville, Tennessee, for the appellant, Richard D. Tucker. Paul G. Summers, Attorney General and Reporter, Daryl J. Brand, Assistant Attorney General, Victor S. Johnson, III, District Attorney General, and James W. Milam, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendants appealed their convictions for the especially aggravated robbery of the two victims and vandalism of the car of one of the victims. Additionally, Carter was convicted of the unlawful possession of a weapon. In their appeal, the defendants assert that the trial court should have instructed as to lesser-included offense of aggravated assault, that the proof of especially aggravated robbery was not sufficient, and that their sentences were inappropriate. Based upon our review, we reverse the convictions of both defendants as to especially aggravated robbery because of the failure to instruct the jury as to the lesser-included offense of aggravated robbery. The remaining convictions are affirmed. http://www.tba.org/tba_files/TCCA/carterjc.wpd STATE OF TENNESSEE VS. JERRY RAY CHANDLER Court:TCCA Attorneys: John D. Henderson, Franklin, Tennessee, for the appellant, Jerry Ray Chandler. Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Assistant Attorney General, Ron Davis, District Attorney General, Judson Phippils, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Jerry Ray Chandler, was found guilty by a Hickman County jury of the offense of rape. He was sentenced to twelve years incarceration, which is the maximum sentence for a Range I standard offender for the offense of rape, a Class B felony. He was also assessed a twenty-five thousand dollar fine. In this appeal as of right, the Defendant asserts that both his sentence and fine are excessive. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/chandlerjr.wpd STATE OF TENNESSEE VS. RODNEY FORD Court:TCCA Attorneys: Thomas Jay Norman, Nashville, Tennessee, for the appellant, Rodney Ford. Michael E. Moore, Solicitor General, Clinton J. Morgan, Assistant Attorney General, Victor S. Johnson III., District Attorney General, and Kymberly Haas, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant was convicted by a jury of three counts of aggravated robbery. Subsequently, on direct appeal this court held that the search of defendant's home was illegal. We held that all physical evidence gained through the search of the residence as well as defendant's verbal statements when confronted with this evidence should have been suppressed. Additionally, this court remanded the case to the trial court for a determination as to the legality of defendant's subsequent written confession at the police station. On remand, the trial court held the statement was admissible. After thoroughly reviewing the record, we reverse the decision of the trial court and remand for a new trial, with instructions that the written statement be suppressed. http://www.tba.org/tba_files/TCCA/FordRodney.wpd STATE OF TENNESSEE VS. SAMUEL D. LAND Court:TCCA Attorneys: Eric L. Davis, Franklin, Tennessee, for the appellant, Samuel D. Land Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Todd Kelley, Assistant Attorney General, Ronald L. Davis, District Attorney General, and Jeff P. Burks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: The appellant, Samuel D. Land, was found guilty by a jury of one count of felony evading arrest and one count driving on a revoked license, second offense. He was sentenced, as a career offender, to twelve years in the Department of Correction for the felony offense. A concurrent sentence of eleven months, twenty nine days was imposed for the misdemeanor offense. In this appeal as of right, the appellant challenges the trial court's denial of his motion to suppress a statement made after his constitutional right to counsel had attached and the trial court's denial of his motion for mistrial resulting from allegedly prejudicial comments made by the court. Additionally, he raises numerous evidentiary issues and challenges the sufficiency of the convicting offense. After review, we find one issue regarding hearsay evidence meritorious. We conclude, however, that this error is harmless. Furthermore, we find that no other error of law requiring reversal exists. We affirm the judgments of conviction entered by the trial court. http://www.tba.org/tba_files/TCCA/LandSD.wpd STATE OF TENNESSEE VS. ELIZABETH MULLINS Court:TCCA Judge: TIPTON First Paragraph: Came the defendant, Elizabeth Mullins, by counsel, and the state, by the Attorney General, and this cause was heard on the record on appeal from the Criminal Court of Anderson County; and upon consideration thereof, this court is of the opinion that the judgment of the trial court contains no reversible error. http://www.tba.org/tba_files/TCCA/mullinse.wpd STATE OF TENNESSEE VS. DONALD CURTIS REID Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, Donald Curtis Reid. Paul G. Summers, Attorney General & Reporter, Elizabeth T. Ryan, Assistant Attorney General, and D. Paul DeWitt, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Donald Curtis Reid, was convicted of aggravated robbery in connection with the holdup of a Nashville Burger King and sentenced to nine years in the Tennessee Department of Correction. In this appeal, the defendant asserts that the trial court committed error by admitting evidence seized from his vehicle pursuant to a traffic stop and subsequent arrest for driving on a suspended license. He also contends that the evidence was insufficient and that the sentence was excessive. We find that the search of the defendant's vehicle was proper and that the evidence obtained as a result thereof was correctly admitted. There being no error, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/Reiddc.wpd STATE OF TENNESSEE VS. HALLEY O'BRIEN THOMPSON Court:TCCA Attorneys: C. Michael Robbins, Memphis, Tennessee (on appeal) and George Morton Googe, District Public Defender and Pamela J. Drewery, Assistant Public Defender, Jackson, Tennessee (at trial) for the appellant, Halley O'Brien Thompson. John Knox Walkup, Attorney General and Reporter; William David Bridgers, Assistant Attorney General; James G. Woodall, District Attorney General; and Donald H. Allen, Assistant District Attorney, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Halley O'Brien Thompson, appealed this court's determination that he was not denied his right to testify by his decision not to take the stand on his own behalf based upon alleged comments that the jury was ready to go home. The Tennessee Supreme Court remanded for consideration in light of Napoleon Momon v. State, No. E1996-00007-SC-R11-PC, Hamilton County (Tenn. Nov. 15, 1999) (for publication). We hold that the defendant's decision not to testify was voluntary. http://www.tba.org/tba_files/TCCA/THOMPS~1.wpd STATE OF TENNESSEE VS. DAVID C. VAZQUEZ Court:TCCA Attorneys: Phillip L. Davidson, Nashville, Tennessee, for the appellant, David C. Vasquez Paul G. Summers, Attorney General & Reporter, Lucian D. Geise, Assistant Attorney General, Tom P. Thompson, Jr., District Attorney General, Bobby Hibbitt, Assistant District Attorney General, for the appellee, State of Tennessee Judge: ACREE First Paragraph: The defendant entered pleas of guilty to the crimes of statutory rape and contributing to the delinquency of a minor and was sentenced to community corrections. The issue raised by the defendant on appeal is whether the trial judge improperly denied judicial diversion. We conclude that the trial court erred in denying judicial diversion and in enhancing the sentence above the presumptive sentence. Therefore, we reverse the decision of the trial court and remand the case for disposition in accordance with this opinion. http://www.tba.org/tba_files/TCCA/vazquez.wpd STATE OF TENNESSEE VS. TEDDRICK WILLIAMSON Court:TCCA Attorneys: Frank Deslauriers, Covington, Tennessee, for the appellant, Teddrick Williamson. Paul G. Summers, Attorney General and Reporter, Patricia C. Kussman, Assistant Attorney General, Elizabeth T. Rice, District Attorney General, and James Walter Freeland, Jr., Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his conviction of especially aggravated robbery, from which he received a twenty-two year sentence to serve 100% as a violent offender. We concluded there was sufficient evidence to support the verdict including injuries sufficient to meet the definition of serious bodily injury. Further, we concluded that the trial court did not abuse its discretion in refusing to allow cross examination regarding the victim's identifying the defendant's accomplice. http://www.tba.org/tba_files/TCCA/WILLIA~1.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! 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