May 12, 2000 Volume 6 -- Number 071 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 05 New Opinion(s) from the Tennessee Court of Appeals 01 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 ATS SOUTHEAST, INC., et al. v. CARRIER CORPORATION Court:TSC Attorneys: Fred C. Dance, Nashville, Tennessee, for the petitioners, ATS Southeast, Inc., Rent-A-Driver, Inc., and Wood Transportation, Inc. James A. Delanis, Jonathan J. Cole, Richard A. Stout, Nashville, Tennessee, for the respondent, Carrier Corporation. Judge: BIRCH First Paragraph: Pursuant to Tenn. Sup. Ct. R. 23, we accepted the following question from the United States District Court for the Middle District of Tennessee: Under the Tennessee Consumer Protection Act, "[d]oes a corporation have standing to bring a private cause of action for treble damages pursuant to Tenn. Code Ann. S 47-18-109(a)?" We answer that it does. The Tennessee Consumer Protection Act defines, in Tenn. Code Ann. S 47-18-103(7), "person" to include corporations, and "persons" can seek treble damages available under Tenn. Code Ann. S 47-18-109(a). Therefore, we opine that a corporation has standing to bring a private cause of action for treble damages under Tenn. Code Ann. S 47-18-109(a). http://www.tba.org/tba_files/TSC/ATS.wpd STATE OF TENNESSEE v. STEPHEN MICHAEL WEST Court:TSC Attorneys: Roger W. Dickson and Elisabeth B. Donnovin, Chattanooga, Tennessee, and John T. Milburn Rogers, Greeneville, Tennessee, for the appellant, Stephen Michael West. Michael E. Moore, Solicitor General, Glenn R. Pruden, Senior Counsel, Marvin S. Blair, Assistant Attorney General, William Paul Phillips, District Attorney General, and Clifton Herbert Sexton, Assistant Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: We accepted review in this case to resolve the apparent conflict between Rule 52(b) of the Tennessee Rules of Criminal Procedure and Tenn. Code Ann. S 40-30-111 (1990) (repealed 1995), which limits the scope of review in post-conviction proceedings. In order to resolve this issue, we will also address whether the plain error rule should apply to claims deemed "previously determined" or "waived" under Tenn. Code Ann. S 40-30-112 (1990) (repealed 1995). We find that the appellant's (Stephen Michael West) current claim, which is being raised for the first time on post-conviction appeal, has been both "previously determined" by this Court pursuant to our statutorily-required review of his death sentence and "waived" because he failed to raise it on direct appeal. In such circumstances, Tenn. Code Ann. S 40-30-111 (1990) (repealed 1995) controls the scope of review and expressly prohibits post-conviction consideration of issues deemed "previously determined" or "waived." As such, the issue West now raises is beyond the scope of permissible post-conviction review, and Tenn. R. Crim. P. 52(b), is inapplicable. Accordingly, the judgment of the Court of Criminal Appeals is affirmed. http://www.tba.org/tba_files/TSC/Wests.wpd BRENDA KAY (FOWLER) CROWE v. WAYNE EDWARD CROWE Court:TCA Attorneys: J. Branden Bellar, Carthage, Tennessee, for the appellant, Wayne Edward Crowe. Jessica Dawn Dugger and Gregory S. Gill, Lebanon, Tennessee, for the appellee, Brenda Kay (Fowler) Crowe. Judge: FARMER First Paragraph: Wayne Edward Crowe (Husband) appeals the trial court's award to Brenda Kay (Fowler) Crowe (Wife) of alimony in solido in the sum of $55,000. Having determined that this award is contrary to the preponderance of the evidence, we vacate that portion of the divorce decree. http://www.tba.org/tba_files/TCA/crowebk.wpd CLIFTON GOOLSBY v. UPPER CUMBERLAND OIL, INC. Court:TCA Attorneys: William Joseph Butler, Lafayette, Tennessee, for the appellee, Clifton Goolsby. David Day, Cookeville, Tennessee, for the appellant, Upper Cumberland Oil, Inc. Judge: CAIN First Paragraph: This case concerns a lessee's attempt to renew a lease after the expiration of the lease term and in the absence of language in the lease designating a specific time frame for renewal. Upon the written findings of the trial court we hold that the lessee failed to exercise its option to renew the lease despite its tender of the increased rent due under the renewal option. In keeping with our Supreme Court's opinion in Norton v. McCaskill, 12 S.W.3d 789 (Tenn. 2000); we affirm the trial court's determination on the record that Lessee is a holdover tenant for the period of one year . http://www.tba.org/tba_files/TCA/GoolsbyC.wpd NEIL PRICE VS. TONI PRICE CORRECTED OPINION Court:TCA Attorneys: JAMES G. MARTIN, III GREGORY D. SMITH Farris, Warfield & Kanaday 424 Church Street, Suite 1900 Nashville, Tennessee 37219 ATTORNEY FOR PLAINTIFF/APPELLANT ROBERT L. JACKSON STANLEY A. KWELLER Jackson, Kweller, McKinney & Badger One Washington Square, Suite 103 214 Second Avenue North Nashville, Tennessee 37201 ATTORNEYS FOR DEFENDANT/APPELLEE Judge: CAIN First Paragraph: This case involves the dissolution of a seventeen-year long marriage. The parties have raised on appeal issues involving spousal support, child support, their partial marital dissolution agreement and attorney fees. Upon a review of the record and the relevant law, we find that the decision of the trial court should be reversed in part and affirmed in part. http://www.tba.org/tba_files/TCA/pricen.wpd MARY ANNE GUNTER ROLLER v. STEVE RAY ROLLER Court:TCA Attorneys: Clark Lee Shaw, Nashville, Tennessee, for the appellant, Mary Anne Gunter Roller. Calvin P. Tucker, Lebanon, Tennessee and Thomas F. Bloom, Nashville, Tennessee, for the appellee, Steve Ray Roller. Judge: CAIN First Paragraph: Mother appeals from the trial court's change of custody of minor child to Father. Mother raises as issue on appeal trial court's finding as to material change in circumstances warranting change of custody. Specifically, Mother urges that the findings of the trial court were insufficient to change custody under Tenn. Code Ann. S36-6-106. In addition, Mother argues that the evidence preponderates against the trial court's finding that the child in question was now living with the father, that she was doing better in school under the father's care, that the child preferred to live with the father, and that the child unsuccessfully blended with Mother's new husband and stepchildren. For the following reasons and under the authorities cited below, we find no such preponderance and affirm the trial court in all respects. http://www.tba.org/tba_files/TCA/RollerMA.wpd IN RE: S.B., et al. Court:TCA Attorneys: Jennifer Davis Roberts, Dickson, Tennessee, for the appellants, Kerry Mangrum and Tammy Mangrum. Louise R. Fontecchio, Nashville, Tennessee, for the appellees, Barry Baker and Deborah Baker. Judge: COTTRELL First Paragraph: The trial court in this case approved the adoption of one sibling by a couple who was unrelated to the child, but who had been caring for her. The appeal was taken by another couple, relatives of the child, who had been caring for and were allowed to adopt, in the same proceedings, the other sibling. Appellants assert that their petition to adopt both children should have been granted because of the preferences for placement within a family and placement with siblings. This court affirms the adoption as ordered by the trial court because the trial court considered all preferences and other relevant factors presented by the facts of this case and made a determination that the best interest of the child favored continuity of placement. The evidence does not preponderate against that finding. http://www.tba.org/tba_files/TCA/SB.wpd STATE OF TENNESSEE v. ROBERT JARNAGIN WITH CONCURRING OPINION Court:TCCA Attorneys: Carl R. Ogle, Jr., Jefferson City, Tennessee, for the appellant, Robert Jarnagin. Paul G. Summers, Attorney General and Reporter, Erik W. Daab, Assistant Attorney General, C. Berkeley Bell, Jr., District Attorney General, and John Dugger, Jr., Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his convictions and sentences for improper passing and driving under the influence. We affirm the trial court as we are not persuaded that insufficient evidence supported the convictions, that the admission of the breathalyzer results was error, that the admission of the field sobriety results was error, or that the sentences were excessive. http://www.tba.org/tba_files/TCCA/JarniganR_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/JarniganRC_con.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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