August 25, 2000 Volume 6 -- Number 135 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):   06 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 06 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 CLEVELAND SURGERY CENTER, L.P. et al. v. BRADLEY COUNTY MEMORIAL HOSPITAL, et al. Court:TSC Attorneys: Dan H. Elrod, G. Brian Jackson, and David L. Johnson, Nashville, Tennessee, for the appellant, Bradley County Memorial Hospital. David J. Cocke, Memphis, Tennessee, for the appellant, Ocoee Health Alliance. William H. West, Nashville, Tennessee and Buddy B. Presley, Jr., Chattanooga, Tennessee, for the appellees, Cleveland Surgery Center, L.P. and Ocoee Physical Therapy, Incorporated. William B. Hubbard and William Penny, Nashville, Tennessee, for amici curiae, Tennessee Hospital Association and Hospital Alliance of Tennessee, Incorporated Judge: DROWOTA First Paragraph: The plaintiffs/appellees, private health care providers, brought a declaratory judgment action alleging that the defendants/appellants were violating Article II, S 29 of the Tennessee Constitution which precludes any "County, City or Town" from either giving or loaning its credit to any private person or private business or becoming a stockholder with others in a private company unless an election is held and the qualified voters of the county, city or town approve by a three-fourths majority of the votes cast the giving or loaning of credit or owning of stock. The trial court found that the defendants were in violation of the constitutional provision and issued an injunction to preclude future activities that would violate the constitutional provision. http://www.tba.org/tba_files/TSC/bradleycty.wpd STATE OF TENNESSEE v. JAMES THOMAS JEFFERSON Court:TSC Attorneys: Jeffrey A. DeVasher, Nashville, Tennessee for the appellant, James Thomas Jefferson. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Kathy Morante, Deputy Attorney General, Victor S. Johnson, III, District Attorney, and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: This case is before us upon a jury's resentencing of the defendant, James Thomas Jefferson, on his conviction for premeditated first degree murder. In the original appeal, the Court of Criminal Appeals affirmed the conviction, vacated the sentence, and remanded the matter to the trial court for resentencing. On remand, the defendant requested a new jury trial on the merits in addition to the already-ordered resentencing. The trial court denied the request for a new trial. After a new hearing, the jury fixed a sentence of life imprisonment. The defendant appealed of right, challenging the trial court's overruling of his motion for a new trial on the merits. Relying on the "law of the case" doctrine, the Court of Criminal Appeals affirmed the trial court's judgment. http://www.tba.org/tba_files/TSC/jeffersonj.wpd GAYLE PENLEY v. HONDA MOTOR COMPANY, LTD., et al. Court:TSC Attorneys: William H. Haltom, Jr., Memphis, Tennessee; Kenneth W. Hooks, Birmingham, Alabama; and Keith Belt, Birmingham, Alabama, for the appellant, Ms. Gayle Penley. R. Dale Bay, Nashville, Tennessee; Susan R. High-McAuley, Nashville, Tennessee; and Marshall T. Cook, Nashville, Tennessee, for the appellees, Honda Motor Company, Ltd.; Honda Research & Development Company, Ltd.; American Honda Motor Company, Inc.; Joe's Cycle Shop, Inc. Judge: BARKER First Paragraph: The sole issue in this appeal is whether the ten-year statute of repose codified in the Tennessee Products Liability Act, Tenn. Code Ann. S 29-28-103(a) (1980 & Supp. 1999), is tolled during any period of a plaintiff's mental incompetence. Granting the defendants' motion for summary judgment, the Chester County Circuit Court ruled that (1) the plaintiff's action was brought more than ten years from the product's first purchase for use or consumption; and (2) the ten-year statute of repose was not tolled by reason of mental incompetence. The Court of Appeals affirmed the grant of summary judgment, and the plaintiff was granted permission to appeal by this Court. For the reasons given herein, we likewise affirm the grant of summary judgment to the defendants and hold that mental incompetency does not operate to toll the statute of repose contained within the Tennessee Products Liability Act. The judgment of the Court of Appeals is affirmed, and the plaintiff's suit is dismissed. http://www.tba.org/tba_files/TSC/penleygayle.wpd STATE OF TENNESSEE v. TINA SWINDLE Court:TSC Attorneys: Terry J. Canady, Madison, Tennessee, for the appellant, Tina Swindle. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: This is an appeal from the Criminal Court for Davidson County, which convicted the defendant of two counts of facilitation of child rape and two counts of aggravated sexual battery. The defendant appealed, arguing that the trial court erred in failing to instruct the jury on Class B misdemeanor assault as a lesser-included offense of aggravated sexual battery. After the Court of Criminal Appeals affirmed the convictions, the defendant sought, and this Court granted, permission to appeal on the following issue: whether the trial court erred in failing to instruct the jury on Class B misdemeanor assault as a lesser-included offense of aggravated sexual battery. We hold that Class B misdemeanor assault is a lesser-included offense of aggravated sexual battery and that it was error for the trial court not to instruct the jury accordingly. Nevertheless, having determined that such error was harmless, the defendant's convictions for aggravated sexual battery are affirmed. http://www.tba.org/tba_files/TSC/swindletina.wpd LARRY L. WILSON v. KIMBERLY TITTLE Court:TSC Attorneys: Thomas L. Whiteside, Nashville, Tennessee, for the appellant, Kimberly Tittle. D. Scott Parsley, Nashville, Tennessee, for the appellee, Larry Wilson. Judge: LILLARD First Paragraph: This is a child custody case. The mother and father, who were never married, had a child in Tennessee. The mother subsequently married another man and filed petitions in a Tennessee court to establish paternity of the child and for adoption by the stepfather. During the pendency of the suit, the mother and stepfather moved with the child to Texas. The Tennessee court awarded custody of the child to the mother but denied the mother's petition for adoption. The court awarded the father visitation. Later, the father filed petitions in the Tennessee court for contempt and for change of custody, arguing that the mother had refused to allow him visitation. Mother subsequently filed a petition in a Texas court to modify the Tennessee court's prior order. http://www.tba.org/tba_files/TSC/WilsonLarry.wpd DEBBIE YOUNG v. CARADON BETTER-BILT, INC. Court:TSC Attorneys: Larry G. Trail and Diana C. Benson, Murfreesboro, Tennessee, for the appellant, Caradon Better- Bilt, Incorporated. Christopher K. Thompson, Murfreesboro, Tennessee, for the appellee, Debbie Young. Judge: DROWOTA First Paragraph: Following her termination for excessive absences and tardiness, the employee filed an action pursuant to Tenn. Code Ann. S 50-6-241(a)(2) seeking reconsideration of her 1996 workers' compensation award. The employer argued that reconsideration was not appropriate under the statute because the employee's termination was not causally connected to her initial work-related injury. The trial court rejected the employer's argument and entered a judgment awarding the employee an additional five percent (5%) permanent partial disability. The employer appealed the trial court's decision, and the Special Worker's Compensation Appeals Panel held that the trial court had erred in increasing the initial award because the employee had failed to prove that her termination was causally connected to her initial work-related injury. Thereafter, we granted the employee's motion for full Court review and now reject the findings and conclusions of the Panel. http://www.tba.org/tba_files/TSC/youngd.wpd JOANNA MAY BUTTON BAGGETT v. DENNIS KEITH BAGGETT Court:TCA Attorneys: Troy L. Brooks, Clarksville, Tennessee, for the appellant, Joanna May Button Baggett. James Phillips Bradley, Waverly, Tennessee, for the appellee, Dennis Keith Baggett Judge: LILLARD First Paragraph: This is a divorce case involving child custody. After awarding the mother temporary custody of the parties' children during the pendency of the case, the trial court granted the father sole custody and granted the mother visitation. The mother appealed the custody award. We affirm. http://www.tba.org/tba_files/TCA/BaggettJMB.wpd CHARLES DEWAYNE COLBAUGH v. BETH WARREN COLBAUGH Court:TCA Attorneys: Wayne Detring, Hendersonville, Tennessee, for the appellant, Beth Warren Colbaugh. Barbara J. Walker, Columbia, Tennessee, for the appellee, Charles DeWayne Colbaugh. Judge: LILLARD First Paragraph: This is a post-divorce visitation case. The mother and father lived with their infant child in Columbia, Tennessee. After the couple separated, the mother took the parties' child to her hometown of Bowling Green, Kentucky, over one hundred miles from Columbia. Upon the parties' divorce, the trial court awarded custody of the child to the mother and visitation to the father for twelve days each month, no greater than fourteen days apart. The trial court ordered the mother and father to meet halfway between their two residences to exchange the child for the father's visitation. The mother appealed the trial court's visitation schedule, arguing that it adversely affects the child's sense of stability, that it places overly burdensome travel requirements on the mother and the child, and that it is unworkable in this case because of the mother and father's inability to cooperate. We affirm. http://www.tba.org/tba_files/TCA/ColbaughCD.wpd SHELIA RAE GIBBS, et al. v. ROBIN MEDIA GROUP, et al. v. LINEBERRY PROPERTIES, INC. Court:TCA Attorneys: Julie-Karel Elkin, Nashville, for Appellant Hugh Green, Lebanon, for Appellees, Shelia Rae Gibbs & Charles David Gibbs Keene W. Bartley, Nashville, for Appellee, Lineberry Properties, Inc. Judge: HIGHERS First Paragraph: This appeal arises from a slip-and-fall accident which occurred on property owned by the Defendant Lineberry Properties and leased by the Defendant Robin Media Group. The latter appeals from the jury verdict entered in the Wilson County Circuit Court. The jury assigned one hundred percent of the fault for the Plaintiff's injuries to Robin Media. After the court denied its motions for remittitur or a new trial, the present appeal arose. http://www.tba.org/tba_files/TCA/gibbssheliar.wpd DAVID MILLS v. LINDA SOLOMON Court:TCA Attorneys: Frank M. Fly, Murfreesboro, Tennessee, for the appellant, David Mills. John B. Melton, Jr., Woodbury, Tennessee, and Frank Buck and Lena Ann Buck, Smithville, Tennessee, for the appellee, Linda Solomon. Judge: FARMER First Paragraph: These proceedings began when David Mills filed a complaint seeking to condemn an easement across Linda Solomon's property. In bifurcated proceedings, the jury first determined the location of Mills' easement across Solomon's property and, later, found that Solomon was entitled to an award of damages totaling $11,908 for the easement, including $9900 in incidental damages. On appeal from the trial court's judgment entered on the jury's verdict, Mills challenges only the award of $9900 in incidental damages. We agree with Mills' contention that the record fails to contain material evidence to support the award of incidental damages, and we reverse that portion of the trial court's judgment. http://www.tba.org/tba_files/TCA/Millsd.wpd CYNTHIA RICHARDSON, et al. v. JAMES MILLER, M.D., et al. Court:TCA Attorneys: Mary A. Parker and C. Michael Lawson, Nashville, Tennessee, for the appellants, Cynthia Richardson and William Richardson. Douglas Berry, Nashville, Tennessee, for the appellant, Principal Mutual Life Insurance Company. Thomas A. Wiseman, III, Nashville, Tennessee, for the appellee, James Miller, M.D. Thomas Pinckney, Nashville, Tennessee, for the appellee, Tokos Medical Corporation. Judge: KOCH First Paragraph: This appeal involves a medical malpractice action stemming from the use of an infusion pump to administer terbutaline sulphate subcutaneously to arrest a pregnant woman's labor. After suffering a heart attack shortly before giving birth to a healthy child, the woman and her husband filed suit in the Circuit Court for Davidson County against her attending physician, the supplier of the infusion pump, and others alleging that their negligence had caused her heart attack. The woman's medical insurance carrier intervened to assert its contractual reimbursement rights based on the payments it had advanced for the woman's medical expenses. The trial court dismissed the insurance carrier's complaint, and a jury returned a verdict for the physician and the pump supplier. Among their issues on this appeal, the woman and her husband take issue with the exclusion of evidence regarding the FDA-approved uses of terbutaline and with the trial court's refusal to give their requested missing evidence instruction. http://www.tba.org/tba_files/TCA/Richardsonc.wpd JAY A. CAMERON v. STATE OF TENNESSEE Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, attorney for the appellant. Paul G. Summers, Attorney General and Reporter and Lucian D. Geise, Assistant Attorney General, Nashville, Tennessee, attorney for the appellee, State of Tennessee. Judge: SMITH First Paragraph: In 1987 the defendant/appellant, Jay A. Cameron, was convicted of first-degree murder and received a life sentence. On March 4, 1996, the appellant filed a motion to re-open a petition for post-conviction relief originally filed March 13, 1989. The Criminal Court, Montgomery County, Robert W. Wedemeyer, J., denied the petition, and defendant appealed. After due consideration this Court holds that: (1) the defendant's trial counsel was not ineffective for failing to litigate a severance motion when failure to do so was a strategic decision; (2) defendant did not prove that trial counsel was inadequately prepared for trial; and (3) the defendant did not prove that trial counsel failed to adequately prepare the defendant to testify. http://www.tba.org/tba_files/TCCA/cameronjay1.wpd STATE OF TENNESSEE v. RICKY LEE COOK Court:TCCA Attorneys: David A. Doyle, District Public Defender, Regan Cothron, Assistant District Public Defender, for the appellant, Ricky Lee Cook. Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Assistant Attorney General, Lawrence Ray Whitley, District Attorney General, Cara Loeffler, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: CLARK First Paragraph: Defendant appeals the revocation of his probation and reinstatement of a portion of his original sentence. The defendant plead guilty to possession of drug paraphernalia, and received a sentence of eleven (11) months, twenty-nine (29) days, which was completely suspended after the service of forty-eight (48) hours. After a revocation hearing, the trial court revoked defendant's probation and required him to serve a portion of his sentence. Concluding that the defendant violated at least four specific terms of his probation, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/CookRickyLee.wpd ARZOLIA CHARLES GOINES v. STATE OF TENNESSEE Court:TCCA Attorneys: Arzolia Charles Goines, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, Elizabeth B. Marney, Assistant Attorney General, and Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Arzolia Charles Goines, appeals the dismissal of his writ of error coram nobis by the Knox County Criminal Court on September 1, 1999. Following a review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/goinesac.wpd STATE OF TENNESSEE v. WILLIAM M. HUKOWICZ Court:TCCA Attorneys: Frank Lannom, Lebanon, Tennessee attorney for the appellee, William M. Hukowicz. Paul G. Summers, Attorney General & Reporter, Lucian D. Geise, Assistant Attorney General and Tom P. Thompson, Jr., District Attorney General and Robert Hibbett, Assistant District Attorney, attorneys for the appellant, State of Tennessee Judge: SMITH First Paragraph: Following a suppression hearing, the Wilson County Criminal Court, J.O. Bond, J., ordered certain portions of the defendant's statement given to police suppressed, holding that the defendant had exercised his right to remain silent. The state filed an interlocutory appeal. The Court holds that the evidence does not preponderate against the trial court's finding that the defendant's refusal to answer other questions by stating "no comment" or a similar declaration was a proper assertion of the defendant's right to remain silent. However, the trial court should have suppressed the entire statement given following the defendant's assertion of his right to remain silent. http://www.tba.org/tba_files/TCCA/hukowiczwil.wpd STATE OF TENNESSEE v. GERALD W. McCULLOUGH Court:TCCA Attorneys: John E. Herbison, Nashville, Tennessee (on appeal), and Andrew Jackson Dearing, III, Shelbyville, Tennessee (at trial), for the appellant, Gerald W. McCullough. Paul G. Summers, Attorney General & Reporter, Marvin E. Clements, Jr., Assistant Attorney General, and Michael David Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Gerald W. McCullough, was convicted of aggravated sexual battery. The trial court imposed a twelve-year sentence. In this appeal of right, the defendant contends that the trial court erred by allowing proof of more than one instance of sexual misconduct and by imposing an excessive sentence. Because the sentence was not excessive, and because the defendant waived the issue of the admissibility of uncharged sex crimes, the judgment is affirmed. http://www.tba.org/tba_files/TCCA/McCullough.wpd STATE OF TENNESSEE v. JOE W. STEWARD Court:TCCA Attorneys: Gary M. Howell, Columbia, Tennessee, for the appellant, Joe W. Steward. Paul G. Summers, Attorney General & Reporter, Marvin E. Clements, Jr., Assistant Attorney General, and Jeffrey L. Long, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: Because the defendant, Joe W. Steward, was lawfully stopped at a traffic enforcement roadblock, his conviction for driving under the influence, second offense, is affirmed. The issue reserved on appeal by the defendant does not warrant suppression of the evidence. http://www.tba.org/tba_files/TCCA/Steward.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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