June 23, 2000 Volume 6 -- Number 098 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 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 06 New Opinion(s) from the Tennessee Court of Appeals 00 New Opinion(s) from the Tennessee Court of Criminal Appeals 06 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 DOYLE HART v. STATE OF TENNESSEE Court:TSC Attorneys: Joseph S. Ozment, Memphis, Tennessee, for the appellant, Doyle Hart. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Elizabeth Ryan, Assistant Attorney General, and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: We granted review in this habeas corpus case to determine whether two counts of the indictment under which Doyle Hart, the appellant, was convicted are void for failing to provide him with sufficient notice of the crimes charged. After thoroughly reviewing the applicable law, we find that Count 1 is not void for failing to allege a culpable mental state. Additionally, Count 2 is valid because the appellant was provided with sufficient notice of the manner in which he committed the offense for which he was charged and because Count 2 complies with the requirements of Tenn. Code Ann. S 40-13-202 (1982). As such, we affirm the Court of Criminal Appeals's denial of the appellant's petition for habeas corpus relief. http://www.tba.org/tba_files/TSC/hartd.wpd STATE OF TENNESSEE v. LON MITCHELL PIERCE, JR. Court:TSC Attorneys: Donald E. Spurrell and James S. Roach, Johnson City, Tennessee, for the appellant, Lon Mitchell Pierce, Jr. Paul G. Summers, Attorney General & Reporter, Michael E. Moore, Solicitor General, Marvin E. Clements, Jr., Assistant Attorney General, H. Greeley Wells, District Attorney General, and Teresa Murray Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: DROWOTA First Paragraph: The appellant, Lon Mitchell Pierce, Jr, was fleeing from law enforcement officials in a van that another person had stolen in Florida twenty days earlier when the stolen van he was driving collided with a Sullivan County deputy's patrol car. The deputy died almost immediately from injuries he sustained in the collision. As a result of the deputy's death, the appellant was charged with and convicted of first degree murder in the perpetration of a theft. In the Court of Criminal Appeals, the appellant challenged the sufficiency of the evidence to support his conviction and argued that the felony murder rule should not be applied because the killing was collateral to and not in pursuance of the felony of theft. http://www.tba.org/tba_files/TSC/piercelonm.wpd IN RE: AMENDMENT TO RULE 10, CANON 5(B)(1), RULES OF THE SUPREME COURT Court:TSC - Rules First Paragraph: Rule 10, Canon 5(B)(1), Rules of the Supreme Court, is hereby amended by deleting the current section (B)(1) in its entirety and substituting the following new section (B)(1) in lieu thereof: (1) A candidate* for appointment to judicial office or a judge seeking appointment to governmental office shall not solicit or accept funds, personally or through a committee or otherwise, to support his or her candidacy for appointment. Provided, however, if a candidate for judicial appointment is also, by definition, a candidate subject to election*, such candidate may, as provided under Canon 5(C)(2)(a), form a committee to solicit and accept contributions limited to use in the election campaign of the candidate. Any contributions accepted shall not be used in furtherance of the person's candidacy for appointment. http://www.tba.org/tba_files/TSC_Rules/AR10C5_ord.wpd FRANK BARRETT v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY Court:TCA Attorneys: Karl F. Dean, Director of Law, Kimberly M. Frayn and Courtney E. Knight, Nashville, Tennessee, for the appellant, Metropolitan Government of Nashville and Davidson County. John E. Herbison, Nashville, Tennessee, for the appellee, Frank Barrett. Judge: CANTRELL First Paragraph: The Circuit Court of Davidson County held that the General Sessions Court could not assess a $500 penalty for the violation of a municipal ordinance absent a waiver of the defendant's right to a jury trial. We reverse the judgment below. http://www.tba.org/tba_files/TCA/barrettf.wpd HELEN CHASE v. ROGER SPRINGER Court:TCA Attorneys: Michael M. Castellarin, Nashville, Tennessee, for the appellant, Helen Chase. Donald Capparella, Nashville, Tennessee, for the appellee, Roger Springer. Judge: CAIN First Paragraph: This is an appeal from summary judgment rendered in favor of the defendant in an action to enforce a California judgment pursuant to Tennessee Code Annotated section 26-6-101 et seq. Plaintiff attempted to amend in order to assert breach of contract when Defendant answered the petition with a contest of in personam jurisdiction of the California court in the underlying judgment. The trial court ruled that California lacked in personam jurisdiction and the proposed breach of contract amendment to the petition was denied. Plaintiff appeals and we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/ChaseHelen.wpd JOHNNY JESS DAVIS, et ux. v. JOHNNIE REX FLYNN, et ux. Court:TCA Attorneys: Lewis S. Howard, Jr., Knoxville, Tennessee, for the appellants Johnny Jess Davis and wife, Linda Diane Davis. Charles I. Poole, Sevierville, Tennessee, for the appellees, Johnnie Rex Flynn and wife, Barbara Flynn. Judge: SUSANO First Paragraph: The trial court granted the defendants a new trial, and vacated its earlier-entered judgment awarding the plaintiffs, Johnny Jess Davis and wife, Linda Diane Davis, $851,000. The plaintiffs appeal, contending that the trial court erred in granting the defendants a new trial. In their brief, the defendants challenge the trial court's order denying their motion to amend their pleadings to conform to the proof. http://www.tba.org/tba_files/TCA/DavisJJ.wpd RETTA ELROD, et al. v. J.C. PENNEY LIFE INSURANCE COMPANY Court:TCA Attorneys: Lane Moore and Daniel Rader, III, Cookeville, Tennessee, for the appellant, J.C. Penney Life Insurance Company. Jacky Bellar and Brandon Bellar, Carthage, Tennessee, for the appellee, Retta Elrod. Judge: COTTRELL First Paragraph: The plaintiff's son was insured under an accidental death policy issued by the defendant, which named the plaintiff as beneficiary. After the son shot himself, the plaintiff sought to recover under the policy, claiming the shooting was accidental. The defendant insurer denied coverage on the ground that the death was a suicide. The trial court found for the plaintiff and the defendant commenced this appeal. Because the defendant failed to satisfy its burden of proving suicide, we affirm. http://www.tba.org/tba_files/TCA/ElrodR.wpd MADGE KIRKHAM FELL, et al. v. GLORIA RAMBO Court:TCA Judge: KOCH First Paragraph: The remaindermen have filed a petition for rehearing in accordance with Tenn. R. App. P. 39 requesting this court to reconsider portions of its May 5, 2000 opinion and order. We directed Ms. Rambo to respond to the petition and have now received her response. After reviewing our May 5, 2000 opinion and order, we have determined that we neither overlooked nor misconstrued any material evidence in the appellate record. Accordingly, we adhere to our original May 5, 2000 opinion and order, subject to the typographical correction and the clarifications provided in this opinion. http://www.tba.org/tba_files/TCA/Fellmk_reh.wpd TATE OF TENNESSEE ex rel CHARLES RUSSELL LEDBETTER v. MARY ANN ELMORE GODSEY Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, Tammy L. Kennedy, Assistant Attorney General, for appellee, State of Tennessee ex rel. Charles Russell Ledbetter. Randle W. Hill, Jr., Nashville, Tennessee, for appellant, Mary Ann Elmore Godsey. Judge: COTTRELL First Paragraph: Mother appeals the trial court's refusal to reduce her child support payment to allow her to remain unemployed while attending college. While the record supports the trial court's implicit finding that Mother is, and has been, willfully and voluntarily unemployed or underemployed, it is insufficient to ascertain Mother's potential earnings, a necessary component of the significant variance determination. We remand for a determination of mother's potential earnings and application of Tenn. Comp. R. & Regs., ch. 1240-2-4-.03(d). http://www.tba.org/tba_files/TCA/Ledbetter.wpd Student Assignment - - Memphis City School Board's Policies and Procedures Date: June 20, 2000 Opinion Number: 00-109 http://www.tba.org/tba_files/AG/OP109.pdf Penalties available to school principals for violation of the Prevention of Youth Access to Tobacco Act of 1994. 1 Date: June 20, 2000 Opinion Number: 00-110 http://www.tba.org/tba_files/AG/OP110.pdf Attorney for Department of Correction Representing Other Clients Date: June 20, 2000 Opinion Number: 00-111 http://www.tba.org/tba_files/AG/OP111.pdf Duties of Juvenile Court Clerk in Obion County Date: June 20, 2000 Opinion Number: 00-112 http://www.tba.org/tba_files/AG/OP112.pdf Legal Representation of Community Services Agencies Date: June 20, 2000 Opinion Number: 00-113 http://www.tba.org/tba_files/AG/OP113.pdf Contributions to a special fund by criminal defendants Date: June 20, 2000 Opinion Number: 00-114 http://www.tba.org/tba_files/AG/OP114.pdf PLEASE FORWARD THIS E-MAIL! 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