October 20, 2000 Volume 6 -- Number 172 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):   03 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 02 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 STATE OF TENNESSEE v. GUY BINETTE Court:TSC Attorneys: Jerry S. Sloan, Chattanooga, Tennessee, for the appellant, Guy Binette. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; and Ellen H. Pollack, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Jerry H. Summers, Chattanooga, Tennessee, for the amicus curiae, Summers & Wyatt, P.C. Judge: BARKER First Paragraph: This is an appeal from the Criminal Court for Hamilton County, which overruled the defendant's motion to suppress all evidence obtained by the State after the defendant was stopped by a police officer on suspicion of driving while under the influence of an intoxicant. The defendant entered a conditional plea of guilty and reserved for appeal as a dispositive question of law the issue of the lawfulness of the stop. The Court of Criminal Appeals affirmed the trial court's judgment. The defendant thereafter sought, and this Court granted, permission to appeal on the following issue: whether reasonable suspicion, based on specific and articulable facts, existed to authorize a stop of the defendant's vehicle. Having reviewed the record in this case, we hold that the evidence does not support the trial court's finding that the police officer acted with reasonable suspicion when he stopped the defendant. Accordingly, the judgment of the Court of Criminal Appeals is reversed, the conviction as entered by the trial court is vacated, and the charge of driving while under the influence of an intoxicant is dismissed. http://www.tba.org/tba_files/TSC/binetteg.wpd STATE OF TENNESSEE v. DONALD L. CULBREATH and GENNA McCALLIE WITH CONCURRING OPINION Court:TSC Attorneys: Frierson M. Graves, Jr., and Thomas E. Hansom, Memphis, Tennessee, for the defendants, Donald Culbreath and Genna McCallie. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Elizabeth T. Ryan, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy P. Weirich and Jennifer S. Nichols, Assistant District Attorneys General, for the State of Tennessee. Judge: ANDERSON First Paragraph: We granted this appeal to determine: 1) whether the trial court abused its discretion by disqualifying a District Attorney General and his staff due to the use of a private attorney to assist the prosecution where the private attorney received substantial compensation from a private, special interest group and 2) whether the trial court properly dismissed the indictments based on a violation of due process. The Court of Criminal Appeals affirmed the trial court's ruling regarding disqualification but held that the appropriate remedy for the due process violation was suppression of the evidence and not dismissal of the indictments. We agree that the prosecution's appointment and use of a private attorney who received substantial compensation from a private, special interest group created a conflict of interest and an appearance of impropriety that required disqualification of the District Attorney General's office. We further conclude that the prosecutor's use of the private attorney under the circumstances of this case violated the defendants' right to due process under the Tennessee Constitution and required dismissal of the indictments. Accordingly, the judgment of the Court of Criminal Appeals is reversed in part and the judgment of the trial court is reinstated. http://www.tba.org/tba_files/TSC/culbrethdl.wpd WITH CONCURRING OPINION http://www.tba.org/tba_files/TSC/culbreathdl_con.wpd GREGORY HILL, et al. v. CITY OF GERMANTOWN, et al. Court:TSC Attorneys: Andrew C. Clarke and R. Sadler Bailey, Memphis, Tennessee, for the appellant, Gregory Hill. Louis Peo Chiozza, Memphis, Tennessee, for the appellant, Ronald Crowder. John Chapman Duffy, Knoxville, Tennessee, for the appellee, City of Germantown, Tennessee. Vonda Maillicoat Laughlin and William D. Vines, Knoxville, Tennessee, for amicus curiae, Brenda L. Milton. Roger A. Norner, Brentwood, Tennessee, for amicus curiae, Tennessee Municipal Attorneys Association. James Russell Farrar, Nashville, Tennessee, for amicus curiae, Tennessee Municipal League. Judge: HOLDER First Paragraph: We granted this appeal to determine: 1) under what circumstances judgment may be entered against an employee of a governmental entity pursuant to Tenn. Code Ann. S 29-20-310(b) and (c) of the Governmental Tort Liability Act; and 2) whether Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593 (Tenn. 1999), applies retroactively to this case to permit loss of consortium damages to be awarded to the plaintiffs. For the reasons stated below, we hold that Tenn. Code Ann. S 29-20-310(b) precludes the entry of a judgment against the employee when the governmental entity's immunity from suit has been removed pursuant to Tenn. Code Ann. SS 29-20-202 to - 205. We also hold that Jordan applies retroactively to: (1) all cases tried or retried after the date of our decision in Jordan; and (2) to all cases pending on appeal in which the issue decided in Jordan was raised at an appropriate time. We decline, however, to remand to the trial court to apply Jordan to this case. The plaintiffs have received the maximum amount of damages that may be awarded under the GTLA for a wrongful death claim. http://www.tba.org/tba_files/TSC/hillgreg.wpd KIMETHA A. CLARK, et al. v. LUCRESHA T. FARRELL Court:TCA Attorneys: John S. Colley, III, Columbia, Tennessee, for the appellant, Lucresha T. Farrell. Lawrence D. Sands, Columbia, Tennessee, for the appellees, Kimetha A. Clark & James M. Clark. Judge: CAIN First Paragraph: This is an appeal by the defendant from an action of the trial court in assessing discretionary costs against the defendant. The trial court entered an order of dismissal with prejudice on finding that "the parties have settled all matters in controversy . . ." which order was approved for entry by counsel for both parties. The plaintiff filed a motion for discretionary costs pursuant to Tenn. R. Civ. P. 54.04(2). The trial court then granted discretionary costs to the plaintiff in the amount of $2,185.75. We reverse. http://www.tba.org/tba_files/TCA/clarkkimetha.wpd RICHARD I. GELDREICH, et al. v. JOHN D. HALL, III, et al. Court:TCA Attorneys: John D. Hall, III, pro se Daniel C. Masten, for the Appellees Judge: HIGHERS First Paragraph: This appeal arises from a suit initiated by Geldriech ("Investors") alleging breach of fiduciary duty, fraud, and conversion by Hall in his capacity as corporate officer. When Hall failed to answer and appear for hearing, Investors' motion for default judgment was granted. Thereafter, Hall filed a motion to strike the default judgment that was denied by the court below. Hall appeals the trial court's failure to grant him relief from the default judgment. http://www.tba.org/tba_files/TCA/geldreichrichard.wpd WILLIAM H. HORTON v. PAROLE ELIGIBILITY REVIEW BOARD Court:TCA Attorneys: William H. Horton, Pro se. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Pamela S. Lorch, Assistant Attorney General, for the appellee, Parole Eligibility Review Board. Judge: FARMER First Paragraph: An inmate in custody of the Department of Correction filed a petition for a common law Writ of Certiorari alleging that the Board of Paroles acted arbitrarily and illegally in denying him parole. The trial court entered a motion to dismiss for failure to state a claim upon which relief can be granted. This appeal followed and we affirm the trial court. http://www.tba.org/tba_files/TCA/hortonwh.wpd HERMAN NEELY v. DAVID McDONALD and ANDREW KOOSHIAN Court:TCA Attorneys: Phillip L. Davidson, for the Appellant Francis H. Young, for the Appellees Judge: HIGHERS First Paragraph: This appeal involves a negligence claim asserted against two members of the Nashville Metropolitan Police Department. The Davidson County Circuit Court dismissed the case on the grounds the action was precluded by the Tennessee Governmental Tort Liability Act. http://www.tba.org/tba_files/TCA/neelyherman.wpd RUTHERFORD COUNTY BOARD OF EDUCATION v. RUTHERFORD COUNTY COMMISSION, ET AL Court:TCA Attorneys: James G. Thomas, Nashville, Tennessee, for the appellants, Rutherford County Commission, Rutherford County Public Building Authority, and Nancy Allen. Christopher D. Cravens, Charles W. Cagle, Nashville, Tennessee, for the appellee, Rutherford County Board of Education. Judge: CAIN First Paragraph: This is a declaratory judgment action on undisputed facts. The question for disposition is whether the Public Building Authorities Act of 1971 authorizes the Rutherford County Commission to direct the Rutherford County Public Buildings Authority to hire architects, select a contractor and prepare school building design plans for presentation to the Rutherford County School Board. The trial court held that it is the responsibility of the Rutherford County Board of Education to plan, locate, erect and furnish public schools in Rutherford County and that the Rutherford County Commission was without authority to direct the Rutherford County Public Buildings Authority to act in this respect. We affirm the trial court. http://www.tba.org/tba_files/TCA/ruthcobdeduc.wpd STATE OF TENNESSEE v. NATHANIEL ALLEN Court:TCCA Attorneys: Greg Eichelman, Morristown, Tennessee, for the appellant, Nathaniel Allen. Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Counsel for the State, Chris Scruggs, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Nathaniel Allen, was convicted by a jury in the Hamblen County Circuit Court of one count of delivery of more than .5 grams of cocaine, a class B felony. The trial court sentenced the appellant to twelve years incarceration in the Tennessee Department of Correction, as a Range I offender, with thirty percent release eligibility and assessed a fine of $ 7,500. The appellant presents the following issues for our review: (1) whether the evidence in this case is sufficient to sustain a verdict of guilt beyond a reasonable doubt; (2) whether the testimony, under oath, of Tonya Acuff was so contradictory as to have been subject to cancellation; (3) whether the court's decision to send items to the jury room in this case was improper to the extent that it included typed transcripts of tapes not offered as evidence; (4) whether it was improper for the court to align one of the tapes introduced into evidence by the State in this case to a particular phrase so that the jury heard that phrase immediately upon turning on the tape recorder; (5) whether sentencing in this case was excessive and whether the court properly applied statutory guidelines in delivering a sentence in this case; (6) whether if, in fact, the trial court had no alternative but to give a twelve-year sentence in this case according to the Tennessee sentencing guidelines, then are those guidelines constitutional both in terms of the United States and Tennessee constitutions. Upon review of the record and the parties' briefs, we affirm the appellant's convictions, but modify his sentence to ten years. http://www.tba.org/tba_files/TCCA/allenn.wpd STATE OF TENNESSEE v. CLINT T. MELTON Court:TCCA Attorneys: Susan E. Shipley, Knoxville, Tennessee, for the appellant, Clint T. Melton. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Mark A. Fulks, Assistant Attorney General, Randall E. Nichols, District Attorney General, and Robert L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: The appellant was convicted of one count of aggravated robbery and one count of attempted aggravated robbery and received respective sentences of thirty years and fourteen years, to run consecutively. On appeal, he argues (1) the sufficiency of the evidence; (2) failure to instruct on the lessor offense of theft; (3) introduction of hearsay testimony; (4) the trial court's refusal to permit introduction of photographs for identification purposes; and (5) misapplication of sentencing enhancement factor (11), the convicting felonies involved the threat of death or bodily injury and defendant had previous felony convictions resulting in death or bodily injury. After review, the judgments of conviction and sentences are affirmed. http://www.tba.org/tba_files/TCCA/meltonct.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! 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