November 22, 2000 Volume 6 -- Number 190 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 07 New Opinion(s) from the Tennessee Court of Appeals 09 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 SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_1120.wpd BOBBIE JO ALLMAN (SHORT) v. HOUSTON ALLMAN, JR. Court:TCA Attorneys: Brenda Miller Stiles, Hendersonville, Tennessee, for the appellant, Houston Allman, Jr. Michael W. Edwards, Hendersonville, Tennessee, for the appellee, Bobbie Jo Allman (Short). Judge: KOCH First Paragraph: This appeal involves a dispute over the interpretation of a provision in the marital dissolution agreement giving the wife an automobile but requiring the husband to continue making the car payments. After the automobile was totally destroyed in a one-vehicle accident, the wife's insurance company paid the balance remaining on the car loan. After the husband refused to pay the wife an amount equal to the balance of the car loan, the wife filed a petition in the Circuit Court for Sumner County seeking to hold him in contempt. Following a bench trial, the trial judge ordered the husband to pay the wife $7,644.22 representing the balance of the loan when the automobile was destroyed, as well as $1,355 for her legal expenses. We have determined that the marital dissolution agreement allocated the risk of loss of the automobile to the wife and, therefore, reverse the $7,644.22 judgment. We have also determined that the $1,355 judgment must be vacated and that the case should be remanded for further proceedings. http://www.tba.org/tba_files/TCA/allmanbj.wpd E.L. BILLINGSLEY AND ONEIDA FARMS, INC. v. ALVIN D. ESCUE Court:TCA Attorneys: Charles A. Wagner, III and W. Turner Boone, Knoxville, Tennessee, for Appellants, E.L. Billingsley and Oneida Farms, Inc. W. Morris Kizer, Knoxville, Tennessee, for Appellee, Alvin D. Escue. Judge: FRANKS First Paragraph: The Trial Judge granted defendant summary judgment on grounds the action was time-barred. We affirm. http://www.tba.org/tba_files/TCA/billingsleye.wpd JOY FORD v. DANNY HUMPHRES Court:TCA Attorneys: Nan Shelby Calloway, Nashville, Tennessee, for the appellant, Joy Ford. Gerald L. Ewell, Jr., Tullahoma, Tennessee, for the appellee, Danny Humphres. Judge: CAIN First Paragraph: This appeal involves a dispute over the estate of Ms. Thelma Humphres, who was found by the trial court to have died intestate owning a one-half interest in her home and the approximately twenty acres on which it was locataed. She also owned some personal items which sold for $1,355.50. Appellant, Joy Ford, one of Ms. Humphres eight children, believed that Ms. Humphres had executed a will leaving her mother's entire one-half interest in the home and property to her. Ms. Ford objected to the administration of her mother's estate by her brother, Appellee, Danny Humphres, and attempted to prove a lost will. Ms. Ford failed to prove a lost will, and the property was subsequently sold to pay the estate's debts. As Ms. Ford owned the other one-half interest in her mother's property, she objected to the sale of this property. She also objected to the allocation of costs and fees related to the sale and the general administration of her mother's estate. All of her objections were overruled. She now appeals the trial court's actions in these matters. We affirm the trial court. http://www.tba.org/tba_files/TCA/fordjoy.wpd ANITA MARTINO, et al. v. ROBERT L. DYER, et al. Court:TCA Attorneys: H. E. Miller, Jr., Gallatin, Tennessee, for the appellants, Robert L. Dyer and Sumner Regional Medical Center Catherine S. Hughes and Joseph M. Dalton, Jr., Nashville, Tennessee, for the appellees, Anita Martino and Joseph M. Dalton, Jr. Judge: COTTRELL First Paragraph: The trial court granted the motion of an attorney seeking collection of a pro rata share of his fee from a hospital lien against his client's settlement. The effect of the trial court's order is to require the hospital to pay fees to an attorney it did not hire. We reverse the judgment. http://www.tba.org/tba_files/TCA/martinoa.wpd JOHNNY MCGOWAN v. ROBERT GIBSON, et al. Court:TCA Attorneys: Johnny McGowan, Petros, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Dawn Jordan, Assistant Attorney General, Nashville, Tennessee, for Defendants-Appellees. Judge: FRANKS First Paragraph: Plaintiff's Complaint was dismissed by the Trial Court on the basis plaintiff's action was time barred by Tenn. Code Ann. S41-21-806. We vacate and remand. http://www.tba.org/tba_files/TCA/mcgowanj.wpd MARK A. SAMMARTANO v. HELEN SAMMARTANO Court:TCA Attorneys: Bill Easterly, Nashville, Tennessee, for the appellant, Helen Sammartano. Joanie L. Abernathy, Franklin, Tennessee, for the appellee, Mark A. Sammartano. Judge: CAIN First Paragraph: In this divorce case, the defendant/wife appeals complaining of an inequitable division of marital assets, an inadequate award of rehabilitative alimony and the denial of attorney fees. As modified herein, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/sammartanomark.wpd RICK RAY TINKHAM, et al. v. R. JEROME BEASLEY WITH DISSENTING OPINION Court:TCA Attorneys: J.P. Barfield, Nashville, Tennessee, for the appellant, R. Jerome Beasley. John L. Whitfield, Jr., Nashville, Tennessee, for the appellees, Rick Ray Tinkham and wife, Kathy Ann Tinkham. Judge: COTTRELL First Paragraph: This appeal involves the proper measure of damages for breach of a contract for real estate. Because the evidence does not preponderate against the trial court's explicit finding that the value of the house at the time of breach was the same amount as the contract price, and because the proper measure of damages is the difference between those two amounts, we must reverse the trial court's award of damages to the sellers. http://www.tba.org/tba_files/TCA/tinkhamr_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCA/tinkhamr_dis.wpd STATE OF TENNESSEE v. JERRY BELEW Court:TCCA Attorneys: J. Daniel Freemon, Lawrenceburg, Tennessee, for the appellant, Jerry Belew. Paul G. Summers, Attorney General and Reporter; Todd R. Kelley, Assistant Attorney General; T. Michael Bottoms, District Attorney General; J. Douglas Dicus, Lawrence R. Nickell, Jr., and Robert G. Sanders, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was convicted by a Maury County jury of attempted second degree murder and aggravated assault. The trial court sentenced defendant to consecutive sentences of nine years for attempted second degree murder and three years for aggravated assault. In this appeal defendant alleges that the trial court: (1) improperly limited defense counsel's closing argument; (2) improperly denied his requested jury charges; and (3) improperly sentenced him to consecutive sentences. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/belewj.wpd STATE OF TENNESSEE v. ANDREW D. BLEDSOE Court:TCCA Attorneys: Jeffrey A. DeVasher and Wendy S. Tucker, Assistant Public Defenders (on appeal); Karl F. Dean, District Public Defender (at trial), for the appellant, Andrew D. Bledsoe. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Bret Thomas Gunn, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant, after being convicted of reckless homicide, appeals his sentence of three and one- half years incarceration. He argues that the trial court incorrectly imposed an excessive sentence and that the trial court erred by not imposing any form of alternative sentence. We hold that a death, although unfortunate and tragic, standing alone, is insufficient to deny an alternative sentence given our legislative mandate that Range I standard offenders convicted of any Class D felony are presumed to be favorable candidates for alternative sentencing. Therefore, after careful review, we affirm the length of the sentence; however, we modify its manner of service to an alternative sentence of split confinement of one year and the remaining two and one-half years on probation. http://www.tba.org/tba_files/TCCA/bledsoead.wpd STATE OF TENNESSEE v. JAMES D. BRAZELTON Court:TCCA Attorneys: John E. Rodgers, Jr., for the appellant, James D. Brazelton. Paul G. Summers, Attorney General and Reporter, Marvin E. Clements, Jr., Assistant Attorney General, John Zimmerman, Assistant District Attorney General, and Ana Escobar, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, James D. Brazelton, was convicted by a jury in the Davidson County Criminal Court of one count of possession of marijuana, over 10 pounds but less than 70 pounds, with the intent to deliver, a class D felony. The trial court sentenced the appellant, as a Range II offender, to seven years incarceration in the Tennessee Department of Correction. The appellant raises the following issues for our review: (1) whether the jury's verdict was supported by the evidence; and (2) whether the sentence imposed by the trial court was excessive. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/brazeltonjd.wpd STATE OF TENNESSEE v. THOMAS E. DAVENPORT and JOHN SIMMONS Court:TCCA Attorneys: Mark L. Puryear, III, Franklin, Tennessee, for the appellant, Thomas E. Davenport. Virginia Lee Story, Franklin, Tennessee, for the appellant, John Simmons. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Sharon E. Tyler, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Both defendants were convicted by a Williamson County jury of selling more than 0.5 grams of cocaine, a Class B felony. Both defendants were sentenced as Range II, multiple offenders. Defendant Simmons received a sixteen-year sentence, and defendant Davenport received a fifteen- year sentence. In this direct appeal, both defendants challenge (1) the sufficiency of the evidence, and (2) the length and manner of service of their sentences. Simmons further raises the following issues: (1) whether he was denied a speedy trial; (2) whether the trial court erred in denying his motion to dismiss due to the absence of proper signatures on the indictment; and (3) whether the trial court erred in failing to require the state to elect an offense upon which to proceed. Additionally, Davenport makes the following allegations: (1) the trial court erred in allowing portions of the audio taped drug transaction to be presented to the jury; (2) the trial court erred in ruling his prior convictions were admissible under Tenn. R. Evid. 609; and (3) the trial court erred in denying his motion for a mistrial when the informant referred to Davenport's offering her a crack pipe. Based upon a review of the record, we affirm the judgment of the trial court as it relates to defendant Simmons; however, we reverse defendant Davenport's conviction for the sale of cocaine and reduce it to simple possession of cocaine. We remand to the trial court to re-sentence defendant Davenport. http://www.tba.org/tba_files/TCCA/davenportte.wpd WILLIAM ANDREW DIXON v. FLORA J. HOLLAND, WARDEN Court:TCCA Attorneys: Thomas F. Bloom, Nashville, Tennessee, for the appellant, William Andrew Dixon. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Pamela Sue Anderson, Assistant District Attorney General; and Lisa Naylor, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: William Andrew Dixon was convicted of kidnapping for ransom in violation of Tennessee Code Annotated section 39-2603 in April 1981 in the Circuit Court of Dickson County. The offense was committed in April 1978. Between the time of the offense in 1978, and the time of trial in 1981, kidnapping for ransom was redesignated by the legislature as the offense of aggravated kidnapping; the maximum punishment was reduced by the legislature from life imprisonment without parole to life imprisonment with the possibility of parole. The Tennessee Department of Correction maintains that it is incarcerating Petitioner under a sentence of life imprisonment without the possibility of parole. Petitioner filed a Petition for Writ of Habeas Corpus in the Criminal Court of Davidson County, asserting the judgment is illegal and void. The petition was denied. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/dixonwa.wpd STATE OF TENNESSEE v. MICHAEL P. INLOW Court:TCCA Attorneys: Ernest W. Williams, Franklin, Tennessee, attorney for the appellant, Michael P. Inlow. Paul G. Summers, Attorney General and Reporter, Marvin E. Clements, Jr., and Ron Davis, District Attorney General and Derek K. Smith, Assistant District Attorney, attorneys for the appellee, State of Tennessee. Judge: SMITH First Paragraph: On December 18, 1998, a Williamson County Jury convicted Michael Inlow, the defendant and appellant, of attempting to commit second-degree murder. Following a sentencing hearing, the court sentenced the defendant to serve twelve (12) years incarceration. On appeal, the defendant claims (1) that the evidence was insufficient to convict him; (2) that the trial court should have declared a mistrial after a witness referred to the defendant's prior criminal history; (3) that the trial court improperly allowed the jury to consider hearsay testimony; (4) that the trial court improperly instructed the jury regarding self-defense; and (5) that his sentence was excessive. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/inlowmichael.wpd STATE OF TENNESSEE v. KENNETH RAY JARMAN Court:TCCA Attorneys: Collier W. Goodlett, Clarksville, Tennessee, for the appellant, Kenneth Ray Jarman. Paul G. Summers, Attorney General and Reporter, Elizabeth T. Ryan, Assistant Attorney General, and Daniel Brollier, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Kenneth Ray Jarman, pled guilty in the Montgomery County Criminal Court to one count of driving under the influence (hereinafter "DUI"), fourth offense or over, a class E felony; one count of driving on a revoked license, sixth offense, a class A misdemeanor; and one count of violating the open container law, a class C misdemeanor. The trial court sentenced the appellant to two years incarceration in the Tennessee Department of Correction for the DUI conviction, and imposed a $3000 fine. The trial court also sentenced the appellant to eleven months and twenty-nine days incarceration in the Montgomery County Jail for the driving on a revoked license conviction, and imposed a $350 fine. The trial court further sentenced the appellant to thirty days incarceration in the Montgomery County Jail for the violation of the open container law. Additionally, the trial court ordered the appellant's sentences to be served concurrently. The appellant raises the following issues for review: (1) whether the enhancing factors applied by the trial court were inapplicable to this case; and (2) whether the trial court erred in sentencing the appellant to serve the full term of his two-year sentence in the Tennessee Department of Correction. Upon review of the record and the parties' briefs, we affirm in part and modify the judgment of the trial court. http://www.tba.org/tba_files/TCCA/jarmankr.wpd STATE OF TENNESSEE v. RODERICK JOHNSON Court:TCCA Attorneys: Lionel R. Barrett, Jr. (at trial and on appeal) and Dwight E. Scott (on appeal), Nashville, Tennessee, for the appellant, Roderick Johnson. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm and Ana Escobar, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Davidson County jury convicted defendant of second degree murder. In this appeal as a matter of right, defendant challenges only the sufficiency of the evidence upon which the jury based his conviction. Our review of the record reflects sufficient evidence to support the jury's finding. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/johnsonr.wpd STATE OF TENNESSEE v. CHRISTOPHER KARVEY Court:TCCA Attorneys: V. Michael Fox, Nashville, Tennessee, attorney for the appellant, Christopher Karvey. Paul G. Summers, Attorney General & Reporter, Elizabeth T. Ryan, Assistant Attorney General and Victor S. Johnson, District Attorney General, T. J. Haycox, Assistant District Attorney, attorneys for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant entered a plea of guilty to DUI, and attempted to reserve a certified question of law pursuant to Tenn. R. Crim. P. 37(b)(2)(i). The defendant contends that the stop of his vehicle by police was illegal and that all evidence obtained as a result thereof must be suppressed. Because the defendant failed to properly reserve the certified question, the appeal is dismissed. http://www.tba.org/tba_files/TCCA/karveychris.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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