September 8, 2000 Volume 6 -- Number 143 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 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 08 New Opinion(s) from the Tennessee Court of Appeals 07 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 RONALD FREEMAN, JR. v. BOBBY SHANNON, SHERIFF OF BENTON COUNTY, TENNESSEE Court:TCA Attorneys: Kathleen L. Caldwell, Memphis, Tennessee, for the appellant, Ronald Freeman, Jr. Gregory H. Oakley, Nashville, Tennessee for the appellee, Bobby Shannon, Sheriff of Benton County, Tennessee Judge: LILLARD First Paragraph: This is a negligence suit under the Tennessee Governmental Tort Liability Act. The plaintiff is a prisoner who was injured when another car struck the patrol car in which he was being transported. The plaintiff sued the county sheriff under the Tennessee Governmental Tort Liability Act, asserting that his injuries were caused by the negligence of the sheriff's deputy. The plaintiff later amended his complaint to add the county as a defendant. The trial court granted motions to dismiss filed by both the sheriff and the county. The plaintiff appeals the trial court's dismissal of his suit against the county. We affirm, finding that the amended complaint against the county does not relate back to the date the plaintiff filed suit against the sheriff and therefore is barred by the statute of limitations. http://www.tba.org/tba_files/TCA/freemanr.wpd JOHN W. JOHNSON v. BERNICE WADE, et al. Court:TCA Attorneys: John W. Johnson, Trenton, pro se L. L. Harrell, Jr., Trenton, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from an action for ejectment filed by Plaintiff John W. Johnson ("Plaintiff") against Defendant Bernice Wade ("Defendant"). Plaintiff filed suit in the Gibson County Circuit Court alleging that he was the sole owner of the tract of land where both Plaintiff's and Defendant's residences are located. Prior to Defendant's filing on an answer, Plaintiff filed a motion for default judgment. Thereafter, Defendant filed an answer, a motion to dismiss, and a motion to compel Plaintiff to appear for deposition. Following Plaintiff's failure to appear for deposition, failure to prepare an order as directed by the court, and an attempt to file a premature appeal, the trial court dismissed Plaintiff's case for failure to properly prosecute. Plaintiff appeals. http://www.tba.org/tba_files/TCA/johnsonjohnw.wpd MERTIS JOHNSON v. WILLIE A. STEVERSON Court:TCA Attorneys: Douglas R. Pierce and Douglas B. Janney, III, Nashville, Tennessee, for the appellant, Willie A. Steverson. Kendra H. Armstrong, Cordova, Tennessee, for the appellee, Mertis Johnson. Judge: FARMER First Paragraph: This appeal arises from a dispute between Plaintiff Mertis Johnson and Defendant Willie A. Steverson regarding an automobile accident involving Ms. Johnson and Virden Steverson, Mr. Steverson's son. Ms. Johnson filed a complaint against Mr. Steverson alleging that the negligence of Virden was the cause of this accident and seeking damages for her personal injuries. At the conclusion of a jury trial on the matter, Mr. Steverson made a motion for a directed verdict, which was denied by the trial court. The jury subsequently returned a verdict in favor of Ms. Johnson and awarded her damages in the amount of $14,000.00. Mr. Steverson filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial, which was also denied by the trial court. For the reasons set forth below, we affirm the ruling of the trial court. http://www.tba.org/tba_files/TCA/johnsonmertis.wpd SARA T. McBRIDE v. KENNETH A. McBRIDE Court:TCA Attorneys: Kenneth Alan McBride, Knoxville, Tennessee, pro se. David D. Noel, Knoxville, Tennessee for Appellee. Judge: FRANKS First Paragraph: Kenneth A. McBride appealed from an Order of the Chancellor confirming the Referee's Report that concluded McBride had offered no new evidence on the issue of reducing child support, which had been previously adjudicated. We affirm. http://www.tba.org/tba_files/TCA/mcbrides.wpd SIGNAL CAPITAL CORPORATION, et al. v. SIGNAL ONE, LLC, et al. Court:TCA Attorneys: John W. Murrey, III and Hugh J. Moore, Jr., Chattanooga, Tennessee, for the appellants, Signal Capital Corporation and Larry Wells Roger W. Dickson and C. Crews Townsend, Chattanooga, Tennessee, and Cory Hohnbaum, Charlotte, North Carolina, for the appellees, Signal One, LLC and NationsBanc Capital Corporation Judge: GODDARD First Paragraph: This appeal questions whether a forum selection clause is valid and enforceable against the Plaintiffs, Larry Wells and Signal Capital Corporation. Pursuant to the forum selection clause, Signal One LLC and NationsBanc Capital Corporation filed a motion to dismiss for improper venue. The Trial Court granted the motion to dismiss by finding the forum selection clause was valid. We affirm. http://www.tba.org/tba_files/TCA/signalcap.wpd DIANA LYNN STINNETT v. JACK STINNETT Court:TCA Attorneys: William C. Cremins, Knoxville, Tennessee, for the appellant, Diana Lynn Stinnett. David L. Valone and Scarlett A. Beatty, Knoxville, Tennessee, for the appellee, Jack Stinnett. Judge: SWINEY First Paragraph: This is an appeal in a divorce case of the Trial Court's denial of Wife's Motion seeking post- judgment interest. The Judgment was satisfied three years and four months after it was entered. The Motion for post-judgment interest was filed three months after the Judgment was paid. The Trial Court denied post-judgment interest on two grounds. The first was the Trial Court's finding of an accord and satisfaction resulting from Husband's payment of the judgment without interest. The Trial Court also held it would be unconscionable and inequitable for Husband to pay post-judgment interest. The Trial Court then exercised its discretion to deny post-judgment interest. Wife argues that the Trial Court can not deny post judgment interest for equitable reasons, that Husband failed to prove an accord and satisfaction, and that the accord and satisfaction affirmative defense may not be raised for the first time during legal argument, cannot be established without proof, and is waived if not pleaded. http://www.tba.org/tba_files/TCA/stinnettdl.wpd TENNESSEE FARMERS MUTUAL INSURANCE COMPANY v. JUDY COBB, DANNY COBB, and DAN COBB Court:TCA Attorneys: Charles M. Agee, Jr., Dyersburg, Tennessee, for the Appellants, Judy Cobb, Danny Cobb and Dan Cobb Jeffrey L. Lay and Gary H. Nichols, Dyersburg, Tennessee for the Appellee, Tennessee Farmers Mutual Insurance Company Judge: LILLARD First Paragraph: This appeal involves a motion to set aside a default judgment. The trial court entered a default judgment against the defendants based on their failure to respond to the lawsuit. Seven months later, the defendants filed a motion to set aside the default judgment. The trial court denied the motion, and the defendants appealed. We affirm, finding no abuse of discretion in the denial of the motion to set aside the default. http://www.tba.org/tba_files/TCA/tnfarmersmut.wpd ROBERT B. TURNER, et al. v. JOHN LOUIS KINSER Court:TCA Attorneys: David L. Leonard, Greeneville, Tennessee, for the appellant, John Louis Kinser. Gene P. Gaby, Greeneville, Tennessee, for the appellees, Robert B. Turner and wife, Regina Cain Turner. Judge: GODDARD First Paragraph: By this suit the Plaintiffs seek a declaration that they are entitled to four separate prescriptive easements across property owned by the Defendant. Prior to the commencement of trial the Defendant conceded that the Plaintiffs were entitled to one easement and the Plaintiffs conceded that they were not entitled to another one. The Trial Court found in favor of the Plaintiffs as to the remaining two easements, resulting in this appeal. We affirm. http://www.tba.org/tba_files/TCA/turnerrob.wpd RICKY LEE BEAMON v. STATE OF TENNESSEE Court:TCCA Attorneys: Laura Rule, Knoxville, Tennessee (on appeal) and Charles Dupree, Chattanooga, Tennessee (at trial) for the appellant, Ricky Lee Beamon. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William H. Cox, III, District Attorney General; and Bates W. Bryan, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: This appeal arises from the trial court's denial of the petitioner's post-conviction petition. On December 1, 1996, the petitioner was found guilty by a Hamilton County jury of aggravated burglary and theft over $500. The convictions were affirmed on appeal. On August 4, 1997, the petitioner filed a pro se petition for post-conviction relief, which was denied by the trial court after an evidentiary hearing. The petitioner now appeals the denial of his petition. After careful review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/beamonrl.wpd ANTHONY CARLTON v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert B. Gaia, Memphis, Tennessee, attorney for the appellant, Anthony Carlton. Paul G. Summers, Attorney General and Reporter and Patricia C. Kusman, Assistant Attorney General, attorneys for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant, Anthony Carlton, was convicted by a Shelby County jury of attempted first-degree murder. Following this court's affirmance of that conviction, the defendant sought post-conviction relief in the Shelby County Criminal Court, and that court denied relief. On appeal, this court finds (1) the defendant did not prove that his trial counsel was ineffective for failing to advise him of his right not to testify, and (2) we are precluded from considering the adequacy of the defendant's appellate representation when that issue was not raised in the court below. http://www.tba.org/tba_files/TCCA/carltonanthony.wpd STATE OF TENNESSEE v. HELEN I. CUMBERBATCH Court:TCCA Attorneys: Ardena J. Garth, District Public Defender; Donna Robinson Miller, Assistant District Public Defender, for the appellant, Helen I. Cumberbatch. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Bill Cox; District Attorney General, and Yolanda D. Mitchell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant appeals as of right from the trial court's revocation of her community corrections sentence. She argues that the trial court erred in revoking her community corrections sentence based on unreliable, undocumented hearsay evidence that she had failed a drug screen. The State asserts that the Defendant has waived appellate review of the admission of the hearsay evidence because she failed to object at the hearing. We hold that the trial judge properly considered the hearsay evidence, and she did not abuse her discretion in revoking community corrections because the evidence was sufficient to establish by a preponderance of the evidence that the Defendant had violated the conditions of community corrections by using cocaine. Accordingly, we affirm the judgment of the trial court revoking the Defendant's community corrections sentence. http://www.tba.org/tba_files/TCCA/cumberbatch.wpd STATE OF TENNESSEE v. RYAN J. LITTLE Court:TCCA Attorneys: Brett B. Stein, Memphis, Tennessee, for the appellant, Ryan J. Little. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Lucian D. Geise, Assistant Attorney General, William L. Gibbons, District Attorney General, and Jim Wax and Glen Baity, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: Ryan J. Little was convicted of one count aggravated robbery, one count aggravated burglary, and three counts of attempted aggravated robbery. An effective twenty-four year sentence was imposed. In this appeal as of right, the appellant contests the trial court's imposition of partial consecutive sentences. The proof before this court supports the trial court's finding that the appellant is a "dangerous offender." Accordingly, we affirm the sentencing decision of the trial court. http://www.tba.org/tba_files/TCCA/littlerj.wpd EDDIE LEE LOWE v. STATE OF TENNESSEE Court:TCCA Attorneys: Brett B. Stein, Memphis, Tennessee, attorney for appellant, Eddie Lee Lowe. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; Elaine Sanders and Glen C. Baity, Assistants District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Eddie Lee Lowe, appeals the trial court's denial of his petition for post-conviction relief from his second degree murder and especially aggravated robbery convictions pursuant to guilty pleas. The petitioner contends that he received the ineffective assistance of counsel because neither his juvenile court attorney nor his trial attorneys preserved his right to appeal his transfer from juvenile court to criminal court for trial as an adult. Because the petitioner had no right to an acceptance hearing in the trial court, we hold that his juvenile court attorney was not deficient for failing to move for such a hearing. Also, we hold that the petitioner has failed to show deficient performance or prejudice by the fact that his trial attorney did not seek to reserve a certified question of law on the transfer issue. We affirm the trial court's denial of the petition. http://www.tba.org/tba_files/TCCA/loweel.wpd STATE OF TENNESSEE v. ANN ELIZABETH MARTIN Court:TCCA Attorneys: Jerry H. Summers and Jimmy F. Rodgers, Jr., Chattanooga, Tennessee, for the appellant, Ann Elizabeth Martin. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussman, Assistant Attorney General; William H. Cox, III, District Attorney General; and Christopher D. Poole, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant Ann Elizabeth Martin was convicted of driving under the influence, first offense. In this appeal as of right she argues (1) the trial court erred when it did not suppress blood test results because of statutory and constitutional infirmities in the implied consent form; and (2) the stop of her vehicle and subsequent arrest are unconstitutional because the arresting officer did not have a reasonable articulable suspicion warranting a traffic stop. Held: the implied consent form complies with the statutory requirements. However, the officer who arrested Defendant did not have a reasonable articulable suspicion warranting a traffic stop. Defendant's conviction is reversed, and the case is remanded for dismissal of the charge. http://www.tba.org/tba_files/TCCA/martinae.wpd TERRANCE PULLIAM v. STATE OF TENNESSEE Court:TCCA Attorneys: Alicia A. Howard, Memphis, Tennessee, for the appellant, Terrance Pulliam. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William Gibbons, District Attorney General; and Michael H. Leavitt, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Terrence Pulliam, appeals as of right from the trial court's denial of post-conviction relief. He asserts that the trial court erred by finding that he received effective assistance of counsel at trial. The Defendant argues generally that counsel was ineffective due to failure to thoroughly investigate his case and to call relevant witnesses, failure to properly advise him throughout the process, and failure to properly impeach State witnesses. We conclude that the evidence does not preponderate against the trial court's finding that the Defendant received effective assistance of counsel at trial. 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