July 31, 2000 Volume 6 -- Number 119 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):   00 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 11 New Opinion(s) from the Tennessee Court of Appeals 13 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 IN RE: PROPOSED AMENDMENTS TO SUPREME COURT RULE 7, SECTIONS 2.03, 2.05, 2.07 AND 12.11 Court:TSC - Rules Judge: PER CURIAM First Paragraph: On February 8, 2000 this Court heard oral argument on the Board of Law Examiners' petition to amend Supreme Court Rule 7. The Board made certain concessions during oral argument, and the Court directed the Board to file revised proposed amendments incorporating the concessions. In addition, this Court instructed the Board to contact the Deans of the three ABA accredited law schools in Tennessee and ask the Deans' to assess the implications of the Board's proposed changes to Article II which enhance the role of law schools in determining the character and fitness of law school applicants, students, and graduates and which impose standards somewhat different than those currently required by the American Bar Association. http://www.tba.org/tba_files/TSC_Rules/R7Amend.wpd JILL MARIE FREETHY v. STEVEN MACONI Court:TCA Attorneys: Deborah S. Evans, Clarksville, Tennessee, for the appellant, Steven Maconi. Vanessa Saenz and Roland Robert Lenard, Clarksville, Tennessee, for the appellee, Jill Marie Freethy. Judge: GODDARD First Paragraph: This Rule 9 interlocutory appeal consists of the singular issue of whether Steven Maconi has sufficient minimum contacts with the state of Tennessee for it to exercise personal jurisdiction over him, thus requiring him to defend a paternity action brought in Tennessee. The Trial Court held that Mr. Maconi had sufficient minimum contacts with the state of Tennessee, and thus, it could exercise personal jurisdiction over him. We reverse the finding of the Trial Court and hold that Mr. Maconi does not have sufficient minimum contacts with the state of Tennessee for it to exercise personal jurisdiction over him. http://www.tba.org/tba_files/TCA/freethyjil.wpd TIMOTHY P. HANCOCK, et al. as next friends and parents of the minor BREANNA HANCOCK v. THE CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY, d/b/a T.C. THOMPSON CHILDREN'S HOSPITAL, et al. Court:TCA Attorneys: George E. Koontz and John D. McMahan, Chattanooga, Tennessee, for the appellants, Timothy P. Hancock and Tina M. Hancock. Robert Boehm and Daniel M. Stefaniuk, Chattanooga, Tennessee, for the appellee, The Chattanooga- Hamilton County Hospital Authority, d/b/a T.C. Thompson Children's Hospital. Arthur P. Brock, John B. Bennett, and Stephany S. Pedigo, Chattanooga, Tennessee, for the appellee, Kenneth Platt, M.D. Judge: SUSANO First Paragraph: The issues in this medical malpractice case turn on whether the holding of the Supreme Court in the case of Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999) applies to the facts now before us. Because the cause of action in the instant case accrued prior to the release of the Supreme Court's opinion in Jordan, we conclude that the holding in that case cannot be retrospectively applied to the instant case. Accordingly, we affirm the trial court's judgment dismissing that portion of the amended complaint seeking loss of consortium damages. http://www.tba.org/tba_files/TCA/HancockTP.wpd TALISA GAYLE HOWELL v. GARY MORRIS HOWELL Court:TCA Attorneys: Delilah A. Speed, Columbia, Tennessee, for the appellant, Gary Morris Howell. Thomas F. Mink, II, Lawrenceburg, Tennessee, for the appellee, Talisa Gayle Kelley. Judge: SUSANO First Paragraph: In this post-divorce case, Talisa Gayle Kelly, formerly Howell, ("Wife") filed a petition seeking to increase child support and to enforce other provisions of the judgment of divorce. The trial court ordered Gary Morris Howell ("Husband") to pay Wife the balance due her for her interest in the former marital residence. It further found Husband in contempt for failing to maintain a life insurance policy for the benefit of the parties' minor child and ordered him to pay Wife an amount approximating what he would have paid in insurance premiums had he maintained the policy as required by the divorce judgment. Wife was also awarded half of her attorney's fees. We reverse the trial court's award of the unpaid premiums; in all other respects, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCA/HowellTG.wpd DEWEY LINEBERRY v. JASON LOCKE, et al. Court:TCA Attorneys: Henry Clay Barry, Lebanon, Tennessee, Elliott Ozment, Nashville, Tennessee, and Troy Brooks, Clarksville, Tennessee, for the appellant, Dewey Lineberry. Thomas I. Carlton, Jr. and Rebecca Wells Demaree, Nashville, Tennessee, for the appellees, Terry Ashe and Jason Locke. Judge: CANTRELL First Paragraph: A citizen whose private photographs and video tapes were seized in the execution of a search warrant sued the sheriff and a deputy for invasion of privacy and outrageous conduct. The trial judge directed a verdict for the defendants at the close of the plaintiff's proof. Because we agree that the plaintiff did not prove either cause of action, we affirm. http://www.tba.org/tba_files/TCA/lineberryd.wpd BARBARA MADISON, etc. v. MARIE LOVE, et al. Court:TCA Attorneys: Edwin Barrett Charles and Howard R. Dunbar of Johnson City, Tennessee, for the appellant, Barbara Madison. Richard E. Ladd, Jr. and Mark E. Frye of Abingdon, Virginia, for the appellees Marie Love, Val Holmes, and Travis Love, d/b/a Encore Enterprises. Judge: SUSANO First Paragraph: Upon remand from the Supreme Court and upon further consideration, we reverse ourselves and conclude that the trial court erred in granting the defendants summary judgment on the plaintiff's claim of negligent failure to render aid to another in peril. Accordingly, we vacate the trial court's judgment and remand for further proceedings. http://www.tba.org/tba_files/TCA/MadisonB.wpd ROANE COUNTY, TENNESSEE v. CHRISTMAS LUMBER COMPANY, INC., et al. Court:TCA Attorneys: Gary A. Davis, Knoxville, Tennessee, for the appellants, Christmas Lumber Company, Inc., and John Harvey Smith. Tom McFarland, Kingston, Tennessee, for the appellee, Roane County, Tennessee. Paul G. Summers, Attorney General and Reporter, and Ann Louise Vix, Senior Counsel, for the State of Tennessee. Judge: SUSANO First Paragraph: This is a condemnation case. The trial court entered an order finding that Roane County ("the County") has the right to condemn the respondents' property for use as an industrial park. We granted the respondents' application for an interlocutory appeal to review the trial court's determination that the County has the right to condemn the subject property. Finding that the County's petition is legally deficient, we vacate the trial court's order and remand for further proceedings. http://www.tba.org/tba_files/TCA/RoaneCounty.wpd DWIGHT SADDLER v. LEONARD SADDLER, et al. Court:TCA Attorneys: David B. Foutch, Lebanon, Tennessee, for the appellants, Leonard Saddler and Paula Saddler. Betty Lou Taylor, Lebanon, Tennessee, for the appellee, Dwight Saddler. Judge: FARMER First Paragraph: This appeal arises from a dispute between Plaintiff Dwight Saddler and Defendants Leonard and Paula Saddler regarding the ownership of a piece of real property in the estate of Edwina Groom Saddler known as the Hancock Farm. The trial court awarded this property to Dwight Saddler, finding that he is the owner of the property as the beneficiary of a resulting trust. Because we agree that Dwight Saddler has proven with the required degree of certainty that the Hancock Farm is the subject of a resulting trust in his favor, we affirm the ruling of the trial court. http://www.tba.org/tba_files/TCA/Saddlerd.wpd THE SHELBY INSURANCE COMPANY and THE ANTHEM CASUALTY INSURANCE GROUP, v. HENRY MATHES, JOANN MATHES and JERRY STEWART Court:TCA Attorneys: Thomas C. McKee, Johnson City, Tennessee, for the appellant, the Shelby Insurance Company. Jerry W. Laughlin, Greeneville, Tennessee for the appellees, Henry Mathes and Joann Mathes. Judge: FRANKS First Paragraph: In this declaratory judgment action the insurance company sought a declaration that an incident giving rise to a suit by Stewart against the insurance company's insured Mathes, was not covered due to an exclusion in the policy. The Trial Judge ruled the exclusion did not apply, and the insurance company appealed. We affirm. http://www.tba.org/tba_files/TCA/shelbyins.wpd DANIEL B. TAYLOR v. DONAL CAMPBELL, COMMISSIONER, TENNESSEE DEPARTMENT OF CORRECTION, et al. Court:TCA Attorneys: Daniel B. Taylor, Only, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; and Terri L. Bernal, Assistant Attorney General, for the appellees, Donal Campbell, Commissioner, Tennessee Department of Correction; Williams Keeling; Roland Colson; Faye Claud; Dinna Wilson; Wyema Helms; and Shirley Pluckett. Judge: SUSANO First Paragraph: Daniel B. Taylor filed a petition for declaratory judgment against the Commissioner and several other employees of the Tennessee Department of Correction, alleging that he is entitled to various sentence reduction credits and that his sentence is void and illegal. The trial court dismissed Taylor's petition. We vacate the judgment of the trial court and remand for further proceedings. http://www.tba.org/tba_files/TCA/TaylorDB.wpd GEORGE TODD v. STATE OF TENNESSEE Court:TCA Attorneys: George Todd, Tiptonville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, Marvin E. Clements, Jr., Assistant Attorney General, C. Michael Layne, District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant appeals from the trial court's dismissal of his petition for post-conviction relief. The trial court found that the petition was barred by the statute of limitations. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/toddg.wpd KELLYE WAIR WILSON v. PAUL DAVID WILSON Court:TCA Attorneys: Dana C. McLendon III, Franklin, Tennessee, for the appellant, Paul David Wilson. D. Scott Parsley, Nashville, Tennessee, for the appellee, Kellye Wair Wilson. Judge: CANTRELL First Paragraph: This is an appeal from the trial court's refusal to modify Mr. Wilson's child support obligation after he was terminated from his place of employment. We reverse the trial court's judgment. http://www.tba.org/tba_files/TCA/wilsonkw.wpd RODNEY BUFORD v. STATE OF TENNESSEE Court:TCCA Attorneys: Rodney Buford, Only, Tennessee, Pro Se. Paul G. Summers, Attorney General & Reporter, Marvin E. Clements, Jr., Assistant Attorney General, and Ronald L. Davis, District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Rodney Buford, is serving an effective sentence of life plus twenty years. His petition for habeas corpus relief was properly dismissed by the trial court because the judgment is not facially invalid and the sentence has not been served. http://www.tba.org/tba_files/TCCA/Buford.wpd STATE OF TENNESSEE v. CARL E. COUCH Court:TCCA Attorneys: Curtis F. Hopper, Savannah, Tennessee, for the appellant, Carl E. Couch. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals his split sentence of 60 days confinement plus 1 year and 4 months of probation for the offense of reckless endangerment with a deadly weapon. The defendant contends in this appeal that the trial court erred in denying him total probation. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/COUCHO~1.wpd WILLIAM LAVERN DAVIS v. STATE OF TENNESSEE Court:TCCA Attorneys: William M. Haywood, Lewisburg, Tennessee, for the appellant, William Lavern Davis. Paul G. Summers, Attorney General & Reporter, Jennifer L. Bledsoe, Assistant Attorney General, William Michael McCown, District Attorney General, and Weakley E. (Eddie) Barnard, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner argues that in finding that his trial counsel was not ineffective and denying his post- conviction petition, the petitioner appeals from the trial court's denial of his post-conviction petition. He argues that the trial court erred by finding that his trial counsel was not ineffective. The trial court's order is affirmed. http://www.tba.org/tba_files/TCCA/DavisWL.wpd STATE OF TENNESSEE v. EDWARD T. FLYE Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, Edward T. Flye. Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Edward T. Flye, challenges the sufficiency of the evidence used to convict him of aggravated burglary and evading arrest. Because the evidence is adequate to support the convictions, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/Flye.wpd STATE OF TENNESSEE v. JOHN WAYNE GRAY Court:TCCA Attorneys: Francis Pryor, Jasper, Tennessee, Cynthia Driver; Assistant Public Defender, Jasper, Tennessee, for the appellant, John Wayne Gray. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; J. Michael Taylor, District Attorney General; Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, John Wayne Gray, appeals as of right from his conviction of the sale of a schedule II controlled substance. On appeal, he argues (1) that the trial court erred by failing to grant his motion for acquittal or directed verdict because the State failed to establish circumstances and facts that would provide for a reasonable assurance of the identity of the evidence and because the State failed to establish an unbroken chain of custody; (2) that the evidence was insufficient as a matter of law to support the jury verdict; and (3) that the trial court erred in sentencing the Defendant to a mid-range sentence as a Range III offender. We find no error. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/grayjw.wpd ROGER HARRIS v. STATE OF TENNESSEE Court:TCCA Attorneys: Kenneth J. Irvine, Jr., Knoxville, Tennessee, for the appellant, Roger Harris. Michael E. Moore, Solicitor General, R. Stephen Jobe, Assistant Attorney General, Joe C. Crumley, Jr., District Attorney General, and Kenneth Carson Baldwin, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner, convicted of first degree murder and reckless endangerment, filed a pro se petition for post-conviction relief in March 1995. The petition was amended several times, first by the petitioner, then by the public defender, and ultimately by private counsel. The trial court summarily dismissed the petition by order because it was not "verified by any oath or affirmation." We reverse and remand, holding that the original petition was filed under a statute that did not require verification by oath or affirmation and, in the alternative, that the affirmation executed by the private counsel is sufficient under the current law. http://www.tba.org/tba_files/TCCA/HarrisR.wpd STATE OF TENNESSEE v. SELINA G. HARRELSON Court:TCCA Attorneys: Stephanie L. Prentis, Savannah, Tennessee, attorney for appellant, Selina G. Harrelson. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Selina G. Harrelson, was convicted of possession of one-half gram or more of cocaine with intent to sell. She contends that the officer did not have probable cause to search the truck with the drug detection dog; that the evidence is insufficient to show that she possessed crack cocaine; and that the trial court should have imposed a sentence alternative to incarceration. We hold that the defendant lacked a reasonable expectation of privacy in the truck to contest the search and that, in any event, the officer had probable cause. We hold that the evidence is sufficient to support the conviction and that the trial court properly sentenced the defendant to incarceration. We affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/HARRLE~1.wpd STATE OF TENNESSEE v. DANIEL JOE JAMES Court:TCCA Attorneys: David O. McGovern, Assistant Public Defender, Jasper, Tennessee, for the appellant, Daniel Joe James. Paul G. Summers, Attorney General and Reporter, and Russell S. Baldwin, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: On September 9, 1998, the Defendant, Daniel Joe James, was charged with possession of a controlled substance with intent to deliver. The Defendant was convicted by a jury of simple possession of a controlled substance. He received a sentence of eleven months and twenty-nine days probation and was fined $2,500.00. The Defendant now challenges the sufficiency of the convicting evidence. On appeal, the State has conceded that the evidence is insufficient to support a conviction. After a careful examination of the record, we agree that there is insufficient evidence against the Defendant to support a conviction. Therefore, we reverse the judgment of the trial court. http://www.tba.org/tba_files/TCCA/jamesdj.wpd STATE OF TENNESSEE v. MICHAEL F. MARASCHIELLO Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee, and Debra Wall, Clarksville, Tennessee, for the appellant, Michael F. Maraschiello. Paul G. Summers, Attorney General and Reporter, Elizabeth T. Ryan, Assistant Attorney General, and Arthur Bieber, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Michael F. Maraschiello, was convicted by a jury in the Montgomery County Circuit Court of first degree murder, arson, possession of an explosive weapon, possession of a shotgun with an altered serial number, and theft. For the offense of first degree murder, a jury imposed a sentence of life imprisonment in the Tennessee Department of Correction. Additionally, the trial court imposed a sentence of two years incarceration in the Department for the offense of arson, two years incarceration in the Department for the offense of possession of an explosive weapon, six months incarceration in the Montgomery County Workhouse for the offense of possession of a shotgun with an altered serial number, and six months incarceration in the workhouse for the offense of theft. http://www.tba.org/tba_files/TCCA/maraschiellomf.wpd STATE OF TENNESSEE v. CHRISTOPHER KEVIN PADGETT Court:TCCA Attorneys: Craig P. Fickling, Cookeville, Tennessee, for the appellant, Christopher Kevin Padgett. Paul G. Summers, Attorney General and Reporter, Jennifer L. Bledsoe, Assistant Attorney General, William E. Gibson, District Attorney General, Benjamin W. Fann, Assistant District Attorney General, and David A. Patterson, Assistant District Attorney General for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Christopher Kevin Padgett, was found guilty by a Putnam County jury of the offense of aggravated robbery. He was sentenced as a Range I standard offender to eleven years incarceration. In this appeal, the Defendant challenges the sentences imposed. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/PadgettChris.wpd STATE OF TENNESSEE v. BOBBY EARL PERKINS Court:TCCA Attorneys: J. Thomas Caldwell, Ripley, Tennessee, attorney for appellant, Bobby Earl Perkins. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Clayburn L. Peeples, District Attorney General; and Larry Hardister, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Bobby Earl Perkins, appeals his conviction for especially aggravated robbery, contending that the trial court erred (1) by allowing a witness to testify about the defendant's statement a year before the robbery that he planned to rob the victim, (2) by allowing a police officer to testify to statements the victim made regarding the defendant, and (3) by sentencing the defendant to twenty-one years. We affirm the conviction, but we modify the sentence to twenty years. http://www.tba.org/tba_files/TCCA/PERKIN~1.wpd STATE OF TENNESSEE v. LAWRENCE DAVIS SHERRILL Court:TCCA Attorneys: Steven L. West, McKenzie, Tennessee (on appeal) and John E. Williams, Huntingdon, Tennessee (at trial) for the appellant, Lawrence Davis Sherrill. Paul G. Summers, Attorney General and Reporter; Tara B. Hinkle, Assistant Attorney General; Robert "Gus" Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: This appeal results from the defendant's conviction by a Carroll County jury for introducing contraband into a penal institution. He was sentenced to six years incarceration and fined $2,500. On appeal, the defendant asserts that the trial court erred in not granting his motion for a new trial based on the lack of evidence to corroborate the testimony of his accomplice required for a conviction. After careful review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/SHERIL~1.wpd STATE OF TENNESSEE v. ROBIN MCNEAL VANHOOSE Court:TCCA Attorneys: Ed Neal McDaniel, Savannah, Tennessee, for the appellant, Robin McNeal Vanhoose. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was convicted by a Hardin County jury of aggravated assault and received an eight- year sentence as a Range II multiple offender. He now appeals his conviction alleging (1) the indictment does not state an offense; and (2) the evidence is insufficient to support aggravated assault. We conclude the indictment adequately informed the defendant of the offense charged, and the evidence presented at trial was sufficient for the jury to conclude he was guilty of aggravated assault. Thus, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/VAHOOS~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. 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