May 16, 2000 Volume 6 -- Number 072 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):   01 New Opinion(s) from the Tennessee Supreme Court 02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 05 New Opinion(s) from the Tennessee Court of Appeals 09 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 LISA MARTIN, ADMINISTRATRIX OF THE ESTATE OF DELORES J. COLEMAN v. ROBERT C. COLEMAN Court:TSC Attorneys: David R. Swafford, Pikeville, Tennessee, for the appellant, Robert C. Coleman. Proctor Upchurch, Crossville, Tennessee, for the appellee, Delores J. Coleman. Judge: HOLDER First Paragraph: We granted this appeal to determine whether an implied partnership may be imposed upon the retirement benefits of one party to a relationship in which unmarried parties held themselves out as husband and wife. We hold that the lower courts erred in dividing the retirement benefits as property of an implied partnership. http://www.tba.org/tba_files/TSC/colemand.wpd GLOBE BUSINESS FURNITURE, INC. VS. EDELTRAUB INGRID MORRIS Court:TSC - Workers Comp Panel Attorneys: D. Stuart Caulkins, Stillman, Karr & Wise, Nashville, Tennessee, for the appellant, Edeltraub Ingrid Morris. Arthur E. McClellan, Gallatin, Tennessee, for the appellee, Globe Business Furniture of Tennessee, Inc. Judge: LOSER First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. http://www.tba.org/tba_files/TSC_WCP/Globebusinessfurn.wpd LUMBERMEN'S MUTUAL UNDERWRITING ALLIANCE VS. RAMON SANCHEZ Court:TSC - Workers Comp Panel Attorneys: Richard C. Mangelsdorf, Jr., Leitner, Williams, Dooley & Napolitan, Nashville, Tennessee, for the appellant, Lumbermen's Mutual Underwriting Alliance, Appellant Martin S. Sir, Nashville, Tennessee, for the appellee, Ramon Sanchez Judge: LOSER First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. http://www.tba.org/tba_files/TSC_WCP/lumbermensmutual.wpd SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL http://www.tba.org/tba_files/TSC_Rules/CERTLIST.wpd ROXIE B. CROWELL and JOHN CROWELL, Individually and as Parents and Next Friends fo Dana Crowell and William Wilson VS. MAYOR DICK HACKETT and THE CITY OF MEMPHIS Court:TCA Attorneys: Harvey L. Gipson, Memphis, Tennessee, for the appellee, Roxie B. Crowell and John Crowell, Individually and as Parents and Next Friends of Dana Crowell and William Wilson. Robert M. Fargarson, Memphis, Tennessee, for the appllants, Mayor Dick Hackett and The City of Memphis. Judge: LILLARD First Paragraph: This is an automobile accident case under the governmental tort liability act. The plaintiffs were in a car struck by another car at a city intersection, after the plaintiff driver failed to stop at a stop sign. The stop sign was overgrown by tree limbs. The plaintiffs filed suit against the city, asserting that the city's failure to maintain the stop sign caused the accident. The trial court found that the city was 51% at fault and that the plaintiff driver was 49% at fault. The city appeals. We affirm, finding that the evidence does not preponderate against the trial court's decision. http://www.tba.org/tba_files/TCA/crowellr.wpd JOHN K. LAYTON, et al. v. LIFE USA, PENNY LAYTON, et al. Court:TCA Attorneys: G. Coble Caperton, Memphis, For Appellant, Penny M. Layton Mike H. White and John E. Dunlap, Memphis, For Appellants, Ron Kim, Trustee, et al C. Barry Ward and Adam F. Glankler, Memphis, For Appellees Judge: CRAWFORD First Paragraph: After the mother and father divorced, the minor children of the parties filed a petition in the original divorce case to add additional parties and to impose a constructive trust on life insurance proceeds required by the court's decree concerning child support. From the order of the trial court holding that the court has jurisdiction and the order of the trial court granting summary judgment to the children, the other named policy beneficiaries have appealed. http://www.tba.org/tba_files/TCA/laytonj.wpd THE MIRAGE CASINO-HOTEL v. J. ROGER PEARSALL Court:TCA Attorneys: Keith V. Moore, Memphis, and Steven R. Walker, Memphis, for Appellant, J. Roger Pearsall Ben G. Sissman and Deborah A. Brandon, FRIEDMAN, SISSMAN AND HEATON, P.C., Memphis, for Appellee, The Mirage Casino-Hotel Judge: HIGHERS First Paragraph: This is a debt collection case based upon a Nevada judgment which was enrolled in Tennessee. After this court affirmed the trial court's decision to recognize and enroll the foreign judgment, the trial court released the appeal bond to the Plaintiff in partial satisfaction of the judgment. The Plaintiff then filed a garnishment in order to collect the remaining amount due. The Defendant filed a motion seeking to quash the garnishment claiming that his obligation to the Plaintiff had been satisfied. The Shelby County Circuit Court denied the motion, and the Defendant has appealed. http://www.tba.org/tba_files/TCA/miragecasino.wpd HAROLD RUSSOM and wife, DORA RUSSOM v. PHILIP J. McCLORE Court:TCA Attorneys: Ronald Krelstein, Memphis, Attorney for Appellants, Harold Russom, et ux Stewart C. Stallings, Memphis, Attorney for Appellee, Philip J. McClore Judge: HIGHERS First Paragraph: This appeal arises from an action to recover for personal injuries sustained by plaintiff, Mr. Russom, and a loss of consortium claim filed by plaintiff,Mrs. Russom. Mr. Russom and Mr. McClore were involved in a traffic accident caused by defendant McClore. The Russoms filed suit to recover damages in the Shelby County Circuit Court. The only issue at trial was the amount of damages to be awarded to the Russoms. The jury returned a verdict for Mr. Russom in the amount of eight thousand dollars. The jury failed to award Mrs. Russom any damages for her loss of consortium claim. The Russoms subsequently filed a motion for new trial, or in the alternative, a Suggestion of Additur that was denied by the trial court. The Russoms have appealed. http://www.tba.org/tba_files/TCA/russomharold.wpd SARAH ANN WILKERSON v. ROBERT WILKERSON Court:TCA Attorneys: Kim G. Sims, Memphis, for Appellant, Robert Wilkerson Marti L. Kaufman, MONROE, KAUFMAN & McGHEE, Memphis, Attorney for Appellee, Sarah Ann Wilkerson Judge: HIGHERS First Paragraph: This appeal arises out of a divorce proceeding in the Shelby County Circuit Court. This court has previously entertained an appeal in this case regarding the division of the marital estate. The case was remanded to the trial court with instructions to divide the marital estate equally between the parties. On remand, the trial court initially divided the marital estate equally and, after hearing additional proof, allowed certain credits found owing to the Wife. The Husband has appealed from the trial court's ruling upon remand. http://www.tba.org/tba_files/TCA/wilkersonsarah.wpd STATE OF TENNESSEE v. GERALD CATHEY Court:TCCA Attorneys: William D. Massey and Lorna S. McClusky, Memphis, Tennessee, attorneys for appellant, Gerald Cathey. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Clinton J. Morgan, Assistant Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: The appellant pled guilty to misdemeanor possession of cocaine and was ordered to serve his sentence of eleven months, twenty-nine days in the Shelby County Corrections Center. In this direct appeal, he asserts that the trial court should have granted a non-incarcerative sentence. After review, we find the record supports the trial court's sentencing decision and affirm the imposition of total confinement. http://www.tba.org/tba_files/TCCA/CATHEYG.wpd STATE OF TENNESSEE v. ROBBIE DAVIDSON Court:TCCA Attorneys: Jerred A. Creasy, Nashville, Tennessee, for the appellant, Robbie Davidson, on appeal. John H. Little, Livingston, Tennessee, for the appellant at trial. Paul G. Summers, Attorney General & Reporter, Kim R. Helper, Assistant Attorney General, William Edward Gibson, District Attorney General, and Owen G. Burnett, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: A jury found the defendant guilty of two second degree murders, and he received two consecutive 25 year sentences. Identification of the bodies and cause of death were difficult because the bodies had been burned. Sufficient evidence supports the convictions and the sentences. Any irregularity in impaneling the jury did not result in prejudice to this defendant. The trial court did not err in admitting a witness' previous preliminary hearing testimony, which contained an audiotaped interview of that witness who experienced memory failure at trial. The trial court also correctly allowed the state to play an audiotaped interview of another witness, offered in response to the defendant's allegations that the witness had been coerced at the interview. The judgment from the trial court is affirmed. http://www.tba.org/tba_files/TCCA/DavidsonR.wpd STATE OF TENNESSEE v. BENITO GOMEZ Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, attorney for appellant, Benito Gomez. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Elizabeth T. Ryan, Assistant Attorney General, William Michael McCown, District Attorney General, and Robert G. Crigler, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The appellant, Benito Gomez, was found guilty by a Bedford County jury of voluntary manslaughter. In this appeal as of right, the appellant challenges the sufficiency of the convicting evidence upon grounds that the State's key witness lacked credibility. The judgment of conviction is affirmed. http://www.tba.org/tba_files/TCCA/GomezB.wpd STATE OF TENNESSEE v. ALBERT HAMPTON Court:TCCA Attorneys: Walker Gwinn, Assistant Public Defender (on appeal), A. C. Wharton, Jr., District Public Defender (of counsel), Gwendolyn Rooks, Assistant Public Defender (at trial), Memphis, Tennessee, for the appellant, Albert Hampton. Paul G. Summers, Attorney General & Reporter, Patricia C. Kussmann, Assistant Attorney General, Daniel Woody, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant was convicted of second degree murder. There were no eyewitnesses to the killing and the murder weapon, a shotgun, was never recovered. In this appeal, the defendant asserts that the trial court improperly admitted hearsay evidence in the form of the victim's identification of the defendant and that his sentence was excessive. We find that the victim's identification of the defendant did not constitute a dying declaration and was, therefore, inadmissible hearsay. Accordingly, we reverse the judgment of the trial court and remand for a new trial. http://www.tba.org/tba_files/TCCA/HAMPTON.wpd STATE OF TENNESSEE v. JOE MITCHELL Court:TCCA Attorneys: Tom W. Crider, District Public Defender, and Joyce Diane Stoots, Assistant Public Defender, Trenton, Tennesseee for appellant, Joe Mitchell. Paul G. Summers, Attorney General and Reporter, J. Ross Dyer, Assistant Attorney General, Clayburn L. Peeples, District Attorney General, Brian Fuller, Assistant District Attorney General, and Shannon Poindexter, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant Joe Mitchell was convicted of two counts of attempted second degree murder following a jury trial in the Haywood County Circuit Court. After a sentencing hearing, the trial court sentenced Defendant as a Range I standard offender to a term of ten years for each conviction, with the sentences to run concurrently. Defendant challenges his convictions and his sentences, raising the following issues: (1) whether the evidence was sufficient to support his convictions; (2) whether the trial court erred when it failed to grant a motion for a new trial based on newly discovered evidence; and (3) whether the trial court erred when it determined the lengths of his sentences. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/Mitchell2.wpd STATE OF TENNESSEE v. BARBARA FAYE POWELL, ET AL Court:TCCA Attorneys: Jason C. Scott, Milan, Tennessee, for the appellants, Barbara Faye Powell and Elizabeth Shereece Cain. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Patricia C. Kussmann, Assistant Attorney General, Clayburn Peeples, District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: The appellants, Powell and Cain, pled guilty to misdemeanor drug offenses each reserving the right to appeal as a certified question of law the admissibility of the evidence seized. The appellants contend that the erroneous date entered on the search warrant by the issuing judge invalidated the warrant and the resulting search. We conclude that the error complained of does not fall within those errors or omissions enumerated within Tenn. R. Crim. P. 41(c), which would render the search and seizure illegal. Rather, we find the error a clerical error which does not serve to invalidate the warrant. The judgments of conviction are affirmed. http://www.tba.org/tba_files/TCCA/POWELLBF.wpd STATE OF TENNESSEE v. CHARLES RAY POWELL Court:TCCA Attorneys: Jack B. Lowery, Lebanon, Tennessee, and Peter Strianse, Nashville, Tennessee, for the appellant, Charles Ray Powell. Paul G. Summers, Attorney General and Reporter, Marvin E. Clements, Jr., Assistant Attorney General, James Michael Taylor, District Attorney General, and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant, after a jury trial, was convicted of first degree murder and sentenced to life. The evidence is sufficient to support the conviction. The trial court did not err in refusing to charge the jury on post-traumatic stress disorder. The self-incriminating statements of the defendant were admissible. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/PowellCR.wpd STATE OF TENNESSEE v. JASON INGRAM STOKES Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, attorney for appellant, Jason Ingram Stokes. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Marvin E. Clements, Jr., Assistant Attorney General, T. Michael Bottoms, District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: The appellant was convicted of theft of property over $500 and the misdemeanor offenses of driving an unregistered vehicle and possessing a vehicle without a serial number. In this direct appeal, the appellant contends that the proof was insufficient to sustain his convictions for these three offenses. After review of the record before this court, we affirm the judgments of conviction. http://www.tba.org/tba_files/TCCA/StokesJIGlenn.wpd STATE OF TENNESSEE, v. FREDERICK RYDEL WALKER. Court:TCCA Attorneys: John E. Herbison, Nashville, Tennessee, for the appellant, Frederick Rydel Walker. Paul G. Summers, Attorney General and Reporter, Kim R. Helper, Assistant Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: On April 23, 1998, the appellant, Frederick Rydel Walker, was convicted by a jury in the Marshall County Circuit Court of one count of attempted second degree murder and two counts of reckless endangerment. On June 3, 1998, the trial court sentenced the appellant as a multiple Range II offender to twenty years incarceration and imposed a five thousand dollar fine for the attempted second degree murder conviction. The trial court also sentenced the appellant to three years and eight months incarceration for each of the reckless endangerment convictions and imposed a one thousand five hundred dollar fine for each offense. http://www.tba.org/tba_files/TCCA/walkerfrederickrydel2.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. 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