October 31, 2000 Volume 6 -- Number 178 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 03 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 CHERYL N. BUCKNER, et al. v. DAVID F. HASSELL, M.D., et al. Court:TCA Attorneys: Donna Keene Holt and David E. Waite, Knoxville, Tennessee, for the appellant, Cheryl N. Buckner. James G. O'Kane, Knoxville, Tennessee, for the appellee, David F. Hassell, M.D. Judge: SWINEY First Paragraph: Ronald L. Buckner was diagnosed with a rare form of melanoma which ultimately resulted in his death. His wife, Cheryl N. Buckner, brought this medical malpractice action against her husband's family physician, Dr. David F. Hassell. The Trial Court excluded portions of the testimony of Mr. Buckner's dermatologist and dermatopathologist due to Ms. Buckner's failure to name these physicians as expert witnesses in her answers to interrogatories pursuant to Tenn. R. Civ. P. 26. The jury returned a verdict in favor of Dr. Hassell, and thereafter, Ms. Buckner filed a Motion for New Trial based upon the weight of the evidence and the Trial Court's exclusion of the dermatologist's testimony regarding the standard of care. The Trial Court denied the Motion. On appeal, Ms. Buckner contends that the Trial Court erred in excluding the testimony at issue because Dr. Hassell did not suffer any prejudice from these physicians not having been identified as expert witnesses in Plaintiff's answers to interrogatories as his attorney was aware of the dermatologist's opinions prior to his deposition for proof, and because each of these treating physicians whose testimony was excluded was not a Rule 26 expert witness. We affirm. http://www.tba.org/tba_files/TCA/bucknercn.wpd CITY OF CHATTANOOGA,TENNESSEE vs. BELLSOUTH TELECOMMUNICATIONS INC., MCI METRO ACCESS TRANSMISSION SERVICES, INC., AMERICAN COMMUNICATIONS SERVICES, INC., and TCG MIDSOUTH, INC., WITH CONCURRING OPINION Court:TCA Attorneys: RANDALL I. NELSON and LAWRENCE W. KELLY, Chattanooga, for Plaintiff-Appellant. DAVID A. HANDZO, JANIS C. KESTENBAUM, JENNER & BLOCK, Washington, and H. FREDERICK HUMBRACHT, JR., BOULT, CUMMINGS, CONNERS & BERRY, PLC, Nashville, for MCI Metro Access Transmission Services, Inc. C. CREWS TOWNSEND and LEAH M. GERBITZ, MILLER & MARTIN, LLP., Chattanooga, for American Communication Services of Chattanooga, Inc. J. HENRY WALKER, and FRED A. WALTERS, Atlanta, and ROBERT G. NORRED, JR., SPEARS, MOORE, REBMAN & WILLIAMS, INC., Chattanooga, for Bellsouth Telecommunications, Inc. HUGH J. MOORE, JR., WITT, GAITHER, & WHITAKER, P.C., Chattanooga, for TCG Midsouth, Inc. Judge: FRANKS First Paragraph: In this declaratory judgment action brought by the City of Chattanooga ("City"), the Trial Judge held the disputed ordinance invalid, and the City has appealed. http://www.tba.org/tba_files/TCA/chattanooga_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/chattanooga_con.wpd SCOTT CHRISTOPHER YOTHER v. ELAINE HINES YOTHER Court:TCA Attorneys: James A. Meaney, III, Chattanooga, Tennessee, for the appellant, Elaine Hines Yother. Kellyann Mulroony Johnson, Chattanooga, Tennessee, for the appellee, Scott Christopher Yother. Judge: SUSANO First Paragraph: In this post-divorce case, Elaine Hines Yother ("Mother") appeals from an order awarding primary residential custody of the parties' minor child, Avery Raechelle Yother (DOB: April 2, 1995), to the child's father, Scott Christopher Yother ("Father"). Mother argues (1) that the trial court lacked subject matter jurisdiction to modify the custodial arrangement decreed in the parties' divorce judgment; and, alternatively, (2) that the evidence preponderates against the trial court's judgment changing custody. Because we find that the trial court lacked subject matter jurisdiction to address the issue of custody, we reverse the judgment below. http://www.tba.org/tba_files/TCA/yothersc.wpd WILLIAM A. HOLT, JR. v. STATE OF TENNESSEE Court:TCCA Attorneys: N. Andy Myrick, Jr., Fayetteville, Tennessee, for the appellant, William A. Holt, Jr. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The appellant was originally convicted by a Marshall County jury of attempt to commit first degree murder, and he received a sentence of twenty-one years imprisonment. The conviction was affirmed on direct appeal. He sought post-conviction relief, which was denied by the trial court. In this appeal as a matter of right, the appellant contends that his trial counsel provided ineffective assistance of counsel. After a thorough review of the record, we conclude that the trial court correctly denied post-conviction relief. http://www.tba.org/tba_files/TCCA/holtwajr.wpd STATE OF TENNESSEE v. JIMMY RAY MITCHELL Court:TCCA Attorneys: V. Michael Fox, Nashville, Tennessee, for the appellant, Jimmy Ray Mitchell. Paul G. Summers, Attorney General and Reporter and Lucian D. Geise, Assistant Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: The appellant/defendant, Jimmy Ray Mitchell, appeals as of right from a judgment of the Davidson County Criminal Court from a jury conviction for the offense of driving under the influence of an intoxicant, first offense. The trial court imposed a sentence of eleven (11) months and twenty-nine (29) days, after the defendant serves fifteen (15) days, the defendant shall be on probation for eleven (11) months and twenty-nine (29) days. The trial court imposed a fine of five hundred dollars ($500). In his single appellate issue, the defendant contends that the trial court erroneously admitted evidence of the breath test results. After a complete review of the record in this cause, we find the defendant failed to allege such trial error in his original motion for a new trial. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/mitchelljr.wpd STATE OF TENNESSEE v. WARNER CARL POWELL and CHARLIE EDWARD STOKES Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Todd R. Kelley, Assistant Attorney General; John Carney, District Attorney General; and C. Daniel Brollier, Jr., Assistant District Attorney General, for the appellant, State of Tennessee. Jack M. Butler, Nashville, Tennessee, for the appellee, Warner Carl Powell. Peter M. Olson, Clarksville, Tennessee, for the appellee, Charlie Edward Stokes. Judge: WELLES First Paragraph: This is an appeal as of right by the State of Tennessee, which argues that the trial court erred by suppressing the evidence obtained against the Defendants pursuant to a search warrant. The State asserts that the trial court incorrectly concluded that the search warrant was invalid because the agent who provided the information in the affidavit establishing probable cause to search did not have the authority to execute the warrant or arrest the Defendants. In response, the Defendants assert that the State's notice of appeal was not timely filed, and they argue that the evidence was properly suppressed because the agent did not have the authority to obtain or execute the search warrant and because the affidavit did not establish the veracity of the confidential informant. We conclude that the State's notice of appeal was not timely filed, but we will consider the appeal in the interest of justice. We further conclude that the search warrant was valid; thus the trial court erred by suppressing the evidence obtained pursuant to the warrant. Accordingly, the trial court's order suppressing the evidence is reversed, and this case is remanded for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/powellwc.wpd STATE OF TENNESSEE v. BARRY WATERS ROGERS Court:TCCA Attorneys: Hershell D. Koger, Pulaski, Tennessee, for the appellant, Barry Waters Rogers. Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Assistant Attorney General, Mike Bottoms, District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Barry Waters Rogers, appeals his conviction by a jury in the Giles County Circuit Court of driving under the influence of an intoxicant. On appeal, the appellant challenges the sufficiency of the underlying indictment. 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/rogersbw.wpd STATE OF TENNESSEE v. KENNETH ALLEN SISCO Court:TCCA Attorneys: Diane House and Jeffrey A. DeVasher, Assistant Public Defenders, Nashville, Tennessee, for the appellant, Kenneth Allen Sisco. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Jon Seaborg, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant pleaded guilty to the offense of robbery. His plea agreement provided that he would be sentenced as a Range II multiple offender, with the length of the sentence to be determined by the trial judge. Following a sentencing hearing, the judge sentenced him to ten years in the Department of Correction. On appeal, the Defendant argues that the trial judge erred by setting his sentence at ten years. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/siscoka.wpd STATE OF TENNESSEE v. PAMELA DENISE WISER Court:TCCA Attorneys: John E. Herbison, Nashville, Tennessee (on appeal) and Donna Leigh Hargrove, District Public Defender; and Andrew Jackson Dearing, III, Assistant Public Defender, Fayetteville, Tennessee (at trial) for the appellant, Pamela Denise Wiser. Paul G. Summers, Attorney General and Reporter; Todd R. Kelley, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant Pamela Denise Wiser was convicted of twenty-two counts of the offense of criminal exposure to HIV, a Class C felony. Tenn. Code Ann. S 39-13-109 (1997). The offenses occurred in Bedford and Marshall counties. Defendant was sentenced to a total of twenty-six years and six months, with some sentences running concurrently and some consecutively. On this consolidated direct appeal, Defendant argues that the trial court erred in applying two enhancement factors and that the length of her aggregate sentence is not reasonably related to the severity of the offenses nor necessary to protect the public from further serious criminal conduct by Defendant. We find that the trial court erred in its application of one enhancement factor. We have determined, however, that the remaining enhancement factors are sufficient to support the trial court's sentence and that the aggregate sentence is not unreasonable. Accordingly, the judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/wiserpd.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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