May 8, 2000 Volume 6 -- Number 068 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):   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 12 New Opinion(s) from the Tennessee Court of Appeals 05 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 v. TONY FITZ CORRECTED OPINION Court:TSC Attorneys: Frank Deslauriers, Covington, Tennessee, for the appellant, Tony Fitz Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; and Peter Coughlan, Assistant Attorney General, Nashville, Tennessee (On Appeal); and Elizabeth T. Rice, District Attorney General and Walt Freeland, Assistant District Attorney General, Somerville, Tennesseee (At Trial), for the appellee, State of Tennessee Judge: ANDERSON First Paragraph: A jury convicted the defendant of robbery, which is statutorily defined as the "intentional or knowing theft of property from the person of another by violence or putting the person in fear." On appeal to the Court of Criminal Appeals, the defendant argued that his indictment alleged only robbery by violence, that the victim testified that he was placed in fear but was not hurt, and consequently, that the evidence was insufficient to support the robbery conviction because the defendant employed "force," which is statutorily defined, but not "violence," which is not statutorily defined. The Court of Criminal Appeals affirmed the robbery conviction, finding that the evidence was sufficient to support the jury's verdict and defining the term "violence" as synonymous with the term "force." The Tennessee Supreme Court granted the defendant's application for permission to appeal and concluded that "violence" involves physical force unlawfully exercised so as to injure, damage or abuse, and further, that the evidence in this case is sufficient to satisfy the element of "violence." Accordingly, the Tennessee Supreme Court affirmed the Court of Criminal Appeals on the separate grounds stated. http://www.tba.org/tba_files/TSC/FitzT.wpd STATE OF TENNESSEE v. ROY E. KEOUGH CORRECTED OPINION WITH APPENDIX Court:TSC Attorneys: Joseph S. Ozment and James V. Ball, Memphis, Tennessee, for the appellant, Roy E. Keough Michael E. Moore, Solicitor General, and Tonya Miner, Assistant Attorney General, Nashville, Tennessee (On Appeal), and John W. Pierotti, District Attorney General, and Robert Carter and Rosemary Andrews, Assistant District Attorneys General, Memphis, Tennessee (At Trial), for the appellee, State of Tennessee Judge: ANDERSON First Paragraph: A jury convicted the defendant of premeditated first degree murder and attempted first degree murder. The jury imposed a death sentence after finding that evidence of an aggravating circumstance, that the defendant was previously convicted of one or more felonies whose statutory elements involve the use of violence to the person, outweighed evidence of mitigating circumstances beyond a reasonable doubt. In a separate proceeding, the trial judge found the defendant to be a Range II, multiple offender and imposed a sentence of forty years for the attempted first degree murder conviction, to run consecutively to the death sentence for the premeditated first degree murder conviction. On direct appeal, the Court of Criminal Appeals affirmed the convictions and the sentences. The Tennessee Supreme Court held that the evidence was sufficient to support the premeditated first degree murder conviction, that the trial court did not err in refusing to allow the defendant to cross-examine the only detective called by the State with a statement the defendant made to other officers, and that the sentence of death is not excessive or disproportion to the penalty imposed in similar cases. Accordingly, the Tennessee Supreme Court affirmed the Court of Criminal Appeals in all respects. http://www.tba.org/tba_files/TSC/KeoughR.wpd APPENDIX: http://www.tba.org/tba_files/TSC/KeoughR_app.wpd YVONNE MCCANN, et al. v. GLEN HATCHETT, et al. Court:TSC Attorneys: Edwin C. Lenow, Memphis, Tennessee, for the plaintiffs/appellants, Yvonne McCann, as grandmother and next of friend of Auron D. Hart, and Haywood Vanarsdale, uncle of Donald Eugene King. Carl Wyatt, Memphis, Tennessee, for the defendants/appellees, Glen Hatchett d/b/a Hatchett Brothers and Associates of Fidelity & Casualty of New York. Judge: BIRCH First Paragraph: In this workers' compensation case the sole issue is whether the death of a traveling employee by drowning is compensable as arising out of and in the course of employment. The trial court granted summary judgment to the employer. We granted the employer's motion for review filed pursuant to Tenn. Code Ann. S 50-6-225(e)(5)(1999) and have determined that the employee's death may have arisen out of and in the course of the employment. It results that the trial court's grant of summary judgment to the employer is error, and the cause is remanded. http://www.tba.org/tba_files/TSC/mccanny.wpd CNL INSURANCE AMERICA, INC. v. MISTY D. SMITH, et al. Court:TCA Attorneys: Joseph B. Klockenkemper, II, ORTALE, KELLEY, HERBERT & CRAWFORD, LLP, Nashville, for Appellant, CNL Insurance America, Inc. B. Timothy Pirtle, McMinnville, for Appellees, Misty D. Smith, et al Judge: HIGHERS First Paragraph: This appeal arises out of a declaratory judgment action filed by CNL Insurance seeking a determination of its obligations under an automobile insurance policy. The Warren County Chancery Court entered a jury verdict finding CNL liable for coverage under the policy. For the reasons stated herein, we reverse the trial court decision. http://www.tba.org/tba_files/TCA/CNLIns.wpd KATHLEEN J. DUNHAM v. STONES RIVER HOSPITAL, INC., et al. Court:TCA Attorneys: Robert S. Peters, Winchester, Tennessee, for the appellant, Kathleen J. Dunham. C.J. Gideon, Jr. and Joe W. Ellis, II, Nashville, Tennessee for the appellee, Stones River Hospital, Inc. Darrell G. Townsend, Nashville, Tennessee for the appellees, Team Health, Inc. and Dr. Maninder Singh. Judge: CANTRELL First Paragraph: The appellant filed a complaint against the appellees alleging medical malpractice. This claim was based on the appellant's assertion that her treating physician, appellee Dr. Maninder Singh, failed to diagnose and properly treat the appellant's myocardial infarction. The trial court granted the appellees' motions for summary judgment. We affirm. http://www.tba.org/tba_files/TCA/dunhamkj.wpd WALTER A. FARRIS, et al. v. WILLIAM S. TODD, et al. Court:TCA Attorneys: Larry C. Vaughan, Knoxville, Tennessee and Emmitt F. Yeary, Abingdon, Virginia, for the appellants, Walter A. Farris and Gordon Farris Thomas L. Kilday and Thomas J. Garland, Jr., Greeneville, Tennessee, for the appellees, William S. Todd and Thomas D. Dossett Judge: GODDARD First Paragraph: This appeal involves the question of whether the Appellants, Walter and Gordon Farris, complied with the statute of limitations when filing their complaint for legal malpractice and conversion. The Appellees, William S. Todd and Thomas S. Dossett, filed a motion to dismiss the complaint because it was barred by the applicable statute of limitations. Appellants moved to amend their complaint to include declaratory judgment relief for determination of the ownership rights of the parties in a particular art work. The Circuit Court for Sullivan County granted the motion to dismiss the complaint and denied the motion to amend. We affirm in part and vacate in part the Circuit Court's judgment. http://www.tba.org/tba_files/TCA/farriswal.wpd MADGE KIRKHAM FELL, et al. v. GLORIA RAMBO Court:TCA Attorneys: Barry B. White and Robert O. Binkley, Lewisburg, Tennessee, for the appellant, Gloria Rambo. William B. Bradley, Brentwood, Tennessee, and Kevin S. Key, Nashville, Tennessee, for the appellees, Madge Kirkham Fell, Betty Kirkham Bowland, Margaret Sanford Mullens, and Bernice Kirkham Bowers. John R. Reynolds, Nashville, Tennessee, Pro Se. Judge: KOCH First Paragraph: This appeal involves a dispute over the proceeds of the sale of a family farm by a life tenant with an unlimited power of disposition. Following the life tenant's death, the remaindermen named in the life tenant's husband's will filed suit in the Chancery Court for Marshall County against the executrix of the life tenant's estate, the estate itself, and the beneficiaries named in the life tenant's will asserting that the life tenant lacked capacity to sell the farm, that the executrix had unduly influenced the life tenant to sell the farm, and that the executrix had tortiously interfered with their inheritance from the life tenant's husband. http://www.tba.org/tba_files/TCA/Fellmk.wpd JGT CORPORATION v. E. HARWELL ANDREWS, et al. Court:TCA Attorneys: Paul S. Davidson, Nashville, Tennessee, and Joel T. Galanter, Nashville, Tennessee for the appellants, E. Harwell Andrews, Leila H. Fuqua, and Alexander S. Fuqua. Richard Braun, Nashville, Tennessee, for the appellee, JGT Corporation. Judge: SWINEY First Paragraph: This appeal arises from a dispute over whether a commercial lease was renewed. After lessors notified lessee that the lease had not been renewed, lessee filed for declaratory judgment on the issue of whether renewal notice was given timely, asserting an alternative ground of equitable relief from performance under the "special circumstances" doctrine. http://www.tba.org/tba_files/TCA/JGTCorp.wpd BOB KIELBASA and VEEDA KIELBASA, v. WILSON COUNTY BOARD OF ZONING APPEALS, B & H RENTALS, LLC; and HORIZON CONCRETE, INC. Court:TCA Attorneys: Jerry Gonzales, Griffith & Gonzalez, P.C., Lebanon, for Appellants. Jere N. Mccullough, Rochelle, McCullough & Aulds, Lebanon, for Appellees, B & H Rentals, LLC and Horizon Concrete, Inc. Judge: FRANKS First Paragraph: Petitioners' Writ of Certiorari to the Board of Zoning Appeals was not timely filed in accordance with T.C.A. S27-9-102, but petitioners argued the statute of limitation was tolled because the Board did not comply with the notice provision, or that the meeting of the Board of Zoning Appeals was fraudulently concealed. The Chancellor held the statute of limitation applicable and dismissed the writ. Petitioners have appealed. http://www.tba.org/tba_files/TCA/kielbasab.wpd KAREN LYNN (GRAVES) MILLER v. ROBERT LARUE MILLER Court:TCA Attorneys: Randle W. Hill, Jr., Nashville, for Appellant, Robert Larue Miller Michael W. Edwards, Hendersonville, for Appellee, Karen Lynn (Graves) Miller Judge: HIGHERS First Paragraph: Robert Miller appeals from a final decree of divorce entered in the Circuit Court of Sumner County. For the reasons stated herein, we remand the case for further proceedings on the issues related to child support. In all other respects, we affirm the trial court decision. http://www.tba.org/tba_files/TCA/millerkl.wpd NILA VILETA (BROWN) RODERICK, v. STEVEN MATTHEW RODERICK Court:TCA Attorneys: Virginia A. Schwamm, Schwamm, Albiston and Higgins, PLLC, Knoxville, Tennessee, for the Plaintiff-Appellant. William H. Horton, Horton, Maddox & Anderson, PLLC, Chattanooga, Tennessee, for the Defendant-Appellee. Judge: FRANKS First Paragraph: In this divorce action, the Trial Judge granted the parties a divorce, ordered child support with custody to the wife, and divided the marital assets and debts between the parties. The wife has appealed. The Trial Court's judgment is affirmed as modified. The modification rephrases the custodial order and identifies a small debt as non-marital property. http://www.tba.org/tba_files/TCA/roderickn.wpd JANET ARWOOD SARTAIN, ET AL. v. JOHN ROSS SARTAIN Court:TCA Attorneys: Carl R. Ogle, Jr., Jefferson City, Tennessee, for the appellant, John Ross Sartain. P. Richard Talley, Dandridge, Tennessee, for the appellee, Janet Arwood Sartain. Judge: SWINEY First Paragraph: Janet Arwood Sartain, Plaintiff/Appellee, filed suit for divorce against John Ross Sartain, Defendant/Appellant, on October 7, 1993. Appellant filed a "Motion to Alter or Amend Judgment, and For Judgment for the Value of Clothes and Tools" in that case. The Trial Court ordered that the divorce Judgment be amended to correct a clerical error which also corrected the Judgment as to the settlement of the marital estate. The Trial Court denied Appellant's motion for post-judgment interest and his request for judgment in the sum of $15,000.00 for tools and clothing. He appeals the Trial Court's refusal to award interest and refusal to grant judgment for tools and clothing. For the reasons herein stated, we affirm the Judgment of the Trial Court. http://www.tba.org/tba_files/TCA/SartainzJr.wpd PHYLLIS SCHWARTZ v. LOOKOUT MOUNTAIN CAVERNS, INC., et al. Court:TCA Attorneys: Richard A. Schulman, Chattanooga, Tennessee, for the appellant, Phyllis Schwartz. Samuel R. Anderson, Chattanooga, Tennessee and Lisa E. Ferraro, Chattanooga, Tennessee, for the appellees, Lookout Mountain Caverns, Inc. and Ruby Falls. Judge: SWINEY First Paragraph: Following entry of judgment on a jury verdict, the Trial Court granted Defendants a new trial based upon allegations in the affidavit of one of the jurors. Plaintiff was granted interlocutory appeal limited to whether or not the Trial Court erred in granting Defendants' Motion For New Trial based on the information contained in the juror's affidavit submitted by Defendants in support of their Motion For New Trial. Because the affidavit does not fall under any of the three exceptions to exclusion of juror testimony found in T.R.E. 606(b), the Trial Court erred in accepting the affidavit into evidence on the issue of a new trial. No other evidence supported Defendants' motion for new trial. Because no admissible evidence was properly before the Court, the Order for new trial is reversed and this lawsuit remanded for enforcement of the judgment previously entered on the verdict of the jury. http://www.tba.org/tba_files/TCA/SchwartzP.wpd ELLEN PATTY SEIBER v. TOWN OF OLIVER SPRINGS WITH CONCURRING OPINION Court:TCA Attorneys: Andrew R. Tillman and Summer H. Stevens, Knoxville, Tennessee, for the Appellant. Robert H. Watson, Jr. and Nathan D. Rowell, Knoxville, Tennessee, for the Appellee. Judge: GODDARD First Paragraph: The plaintiff, a mid-level executive of the Town of Oliver Springs, "borrowed" various sums of money from a citizen of the Town over a three-year period which she repaid with sexual favors. When this activity came to light she was fired by the Mayor and City Administrator. Her suit, claiming breach of contract and discriminatory employment practices, was dismissed on motion for summary judgment. This appeal resulted. We affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/seiberell_opn.wpd CONCURRING OPINION: http://www.tba.org/tba_files/TCA/SiebereC_con.wpd KATRINKA A. STALSWORTH and JIM STALSWORTH v. ROBERT A. GRUMMONS, M.D. Court:TCA Attorneys: Douglas Berry, R. Stephen Doughty, Nashville, Tennessee, for the appellants, Katrinka A. Stalsworth and Jim Stalsworth. Phillip North, Tom Shumate, Nashville, Tennessee, for the Appellee, Robert A. Grummons, M.D. Judge: COTTRELL First Paragraph: The sole issue presented in this appeal is whether the trial court properly awarded as discretionary costs fees of the defendant's expert witnesses who did not testify because the plaintiffs voluntarily dismissed their lawsuit on the day of trial before any proof was taken. The fees in question were charged by the defendant's medical experts for reserving time in their schedules to testify, thereby precluding any other income-producing professional activities. The award of discretionary costs is affirmed. http://www.tba.org/tba_files/TCA/Stalsworth.wpd STATE OF TENNESSEE V. MICHAEL BRIAN GOODWIN Court:TCCA Attorneys: E. Lynn Dougherty and Thomas Seeley, Jr., Bristol, Tennessee; Stephen M. Wallace, District Public Defender; Joseph S. Harrison, Assistant Public Defender, Blountville, Tennessee (at trial); and Gerald L. Gulley, Jr., Knoxville, Tennessee (on appeal) for the appellant, Michael Brian Goodwin. Paul G. Summers, Attorney General & Reporter; Clinton J. Morgan, Counsel for the State; H. Greeley Wells, Jr., District Attorney General; and Gregory A. Newman and Mary Katharine Harvey, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Michael Brian Goodwin, appeals from his convictions for two counts of attempted first degree murder, for which he received concurrent twenty-year sentences. The defendant contends that the evidence is insufficient, that the trial court should have suppressed statements he made to the police, that the state's failure to produce exculpatory evidence violated his right to due process, that the trial court erred in sentencing, and that the cumulative effect of the errors deprived him of a fair trial. We affirm the judgments of conviction and hold that the evidence is sufficient, that the defendant's statements were properly admitted because the defendant waived his Miranda rights, that the defendant failed to show that the evidence not produced by the state was material, that the trial court's imposition of the presumptive midrange sentence was proper, and that the defendant was not denied a fair trial. http://www.tba.org/tba_files/TCCA/Goodwinmb.wpd STATE OF TENNESSEE v. GARY L. HANEY WITH CONCURRING OPINION Court:TCCA Attorneys: James D. Hutchins, Dandridge, Tennessee, Counsel for Appellant, Gary L. Haney at trial and on appeal, and W. Keith Repass, Dandridge, Tennessee, Counsel for Appellant, Gary L. Haney on appeal only. Paul G. Summers, Attorney General and Reporter, Elizabeth B. Marney, Assistant Attorney General, Al C. Schmutzer, Jr., District Attorney General, and Charles Murphy, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WODDALL First Paragraph: Defendant Gary Haney was convicted of aggravated robbery by a jury in the Jefferson County Circuit Court. After a sentencing hearing, the trial court sentenced Defendant as a Range II multiple offender to a term of twenty years in the Tennessee Department of Correction, to be served consecutively to a sentence previously imposed in another case. http://www.tba.org/tba_files/TCCA/haneygl_opn.wpd CONCURRING OPINION: http://www.tba.org/tba_files/TCCA/HaneyGL_con.wpd STATE OF TENNESSEE v. WADE HENRY ALLEN MARSH Court:TCCA Attorneys: Ardena J. Garth, District Public Defender, 11th Judicial District (on appeal), Donna Robinson Miller, Assistant District Public Defender (on appeal), and Christian J. Coder, Assistant District Public Defender (at trial), Chattanooga, Tennessee, for the appellant, Wade Henry Allen Marsh. Paul G. Summers, Attorney General & Reporter, Elizabeth Marney, Assistant Attorney General, William H. Cox, District Attorney General, and Claire H. Brant, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Wade Henry Allen Marsh, was convicted of one count of rape and one count of attempted rape. In this appeal, he challenges the sufficiency of the evidence and argues that the trial court erred by refusing to allow testimony that the victim had a sexually transmitted disease at the time of the offenses and by allowing the state to cross-examine about his sexual battery guilty plea involving the same victim. http://www.tba.org/tba_files/TCCA/marsh.wpd STATE OF TENNESSEE v. ERONIA NEAL Court:TCCA Attorneys: Garland Ergueden, Assistant Public Defender (on appeal), A. C. Wharton, Jr., District Public Defender (of counsel), Leslie Mozingo, Assistant Public Defender (at trial), for the appellant, Eronia Neal. Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Assistant Attorney General, Dan Byer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Eronia Neal, who pled guilty to attempted theft over $1,000.00 and who was sentenced to a term in the county workhouse, was properly denied probation due primarily to a lengthy prior criminal record. http://www.tba.org/tba_files/TCCA/NealE.wpd STATE OF TENNESSEE v. TIMOTHY WILLIAMS Court:TCCA Attorneys: Kendall Reeves, Memphis, Tennessee, for the appellant, Timothy Williams. Paul G. Summers, Attorney General and Reporter, and Tara B. Hinkle, Assistant Attorney General, William L. Gibbons, District Attorney General, and Betty Carnesale, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: In this appeal of right from the Shelby County Criminal Court, the defendant contends that his de novo appeal from a judgment of the General Sessions Court was erroneously dismissed at a status hearing. Because the Criminal Court Clerk failed to provide notice of the status hearing to defendant's counsel of record, the judgment of dismissal is reversed and the cause is remanded to the trial court for a hearing. http://www.tba.org/tba_files/TCCA/Willia2.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. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! Would you like to receive the TBALink Opinion Flash free each day by e-mail? 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