December 13, 2000 Volume 6 -- Number 202 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 07 New Opinion(s) from the Tennessee Court of Appeals 03 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. KENNETH BRYAN HARRIS Court:TSC Attorneys: Frank Lannom, Lebanon, Tennessee, for the appellant, Kenneth Bryan Harris. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Kim R. Helper, Assistant Attorney General, Tom P. Thompson, Jr., District Attorney General, and William Reed, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: We grant permission to appeal as requested by Kenneth Bryan Harris in order to review the judgment of the Court of Criminal Appeals. The Court of Criminal Appeals found that the trial court had erred in making the following rulings: (1) overruling the State's motion to enter a nolle prosequi on an indictment for aggravated assault; (2) dismissing a superseding indictment for attempted first degree murder and aggravated assault; and (3) reversing the district attorney general pro tempore's rejection of the defendant's application for pretrial diversion on the original indictment. Accordingly, the Court of Criminal Appeals reversed each ruling and remanded the cause to the trial court for further proceedings. After careful consideration, we conclude that the trial court erred in overruling the State's motion for a nolle prosequi on the original indictment. We conclude also that the trial court erred in dismissing the superseding indictment for attempted first degree murder and aggravated assault. http://www.tba.org/tba_files/TSC/harrisk.wpd LENSCRAFTERS, INC. v. DON SUNDQUIST, in his official capacity as Governor of the State of Tennessee, et al. Court:TSC Attorneys: Barbara J. Moss, Nashville, Tennessee, for the movant, LensCrafters, Inc. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Michelle Hohnke Joss, Assistant Attorney General, for the respondent, Don Sundquist, in his official capacity as Governor of the State of Tennessee, et al. Judge: BIRCH First Paragraph: This case is before the Court on a certified question from the United States District Court for the Middle District of Tennessee. The moving party, LensCrafters, Inc., (LensCrafters) owns optical stores throughout the United States and produces prescription ophthalmic materials on its premises. LensCrafters leases space to licensed optometrists who perform eye examinations. Prescription lenses and frames are then made and fitted, all in furtherance of the concept of "one-stop shopping." LensCrafters sued in the district court to challenge the constitutionality of Tenn. Code Ann. S 63-8- 113(c)(6) (1997). http://www.tba.org/tba_files/TSC/lenscrafters.wpd MICHAEL H. SNEED v. BOARD OF PROFESSIONAL RESPONSIBILITY Court:TSC Attorneys: Michael H. Sneed, Nashville, Tennessee, for the appellant, Michael H. Sneed. Charles A. High, Nashville, Tennessee, for the appellee, Board of Professional Responsibility. Judge: BIRCH First Paragraph: This case is before the Court on an appeal of right from the judgment of the Chancery Court of Davidson County suspending Michael H. Sneed, the appellant, from the practice of law for six months together with other sanctions. Sneed contends that the trial court erred in imposing discipline and that the six-month suspension is too harsh a sanction. Because we conclude that the trial court had the authority to impose sanctions and that the sanctions imposed are fair and proportionate in light of the entire record, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TSC/sneedm.wpd BONNIE ELLIOTT v. THE BLAKEFORD AT GREEN HILLS Court:TCA Attorneys: Ernest W. Williams and Dana C. McLendon, III, Franklin, Tennessee, for the appellant, Bonnie Elliott. C. Eric Stevens and Robert F. Goldman, Nashville, Tennessee, for the appellee, The Blakeford at Green Hills. Judge: CANTRELL First Paragraph: The Director of Food Service at the defendant retirement home injured her hand on the job, and was terminated by her supervisor. She filed suit against her employer, claiming that she had been discharged in retaliation for making a workers' compensation claim. At the close of the plaintiff's proof, the trial court granted the defendant's motion for directed verdict. We reverse. http://www.tba.org/tba_files/TCA/elliottb.wpd NIGEL M. FONTENOT v. CATHERINE FONTENOT Court:TCA Attorneys: Fred C. Dance, Franklin, Tennessee, for the appellant, Catherine Fontenot. Vicky V. Klein, Madison, Tennessee, for the appellee, Nigel M. Fontenot. Judge: CANTRELL First Paragraph: This appeal arises from the trial court's division of marital property and martial debt, award of alimony, and award of attorney's fees. After reviewing the record and applicable law, the trial court's judgment is affirmed as modified. http://www.tba.org/tba_files/TCA/fontenotnm.wpd TIMOTHY E. ISBELL v. TRAVIS ELECTRIC COMPANY AND MILTON TRAVIS Court:TCA Attorneys: Christopher K. Thompson, Murfreesboro, Tennessee, Shelley I. Stiles, Brentwood, Tennessee, for the appellant, Timothy E. Isbell. Thomas C. Corts, Nashville, Tennessee, for the appellees, Travis Electric Company and Milton Travis. Judge: COTTRELL First Paragraph: After Plaintiff resigned from his job and attempted to start his own competing business, his former manager informed a mutual client of the circumstances surrounding his resignation. Plaintiff sued his former employer and its service manager, alleging slander, libel, defamation, and tortious interference with contract. The trial court directed a verdict for Defendants, and Plaintiff appeals, arguing that the trial court misapplied the substantial truth doctrine, failed to apply the doctrine of implication, and was incorrect in its finding that no contract existed between Plaintiff and his new company's main client. Plaintiff also insists that, by failing to grant a new trial so that he could add an allegation of invasion of privacy, the court ignored the proper legal consequences arising from the disclosure of a confidential drug test. For the following reasons, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/isbellt.wpd VIRGINIA RUTH MOORE v. DWIGHT STEVEN MOORE Court:TCA Attorneys: Thomas F. Bloom, Nashville, Tennessee, for the appellant, Dwight Steven Moore. Sam Wallace, Sr., Nashville, Tennessee, for the appellee, Virginia Ruth Moore. Judge: CANTRELL First Paragraph: In this divorce case, the husband argues that the trial court erred in the way it classified and distributed the parties' marital property. We agree that the trial court's implied classification of the parties' home on Pleasant Cove Road was erroneous as a matter of law, but we find that its disposition of the property was nonetheless within the court's authority and discretion. We accordingly modify the final decree to reflect our view of its correct classification, but otherwise affirm the trial court. http://www.tba.org/tba_files/TCA/moorevr.wpd AUDREY J. OWEN v. WILLIAM C. MARTIN, III Court:TCA Attorneys: B. Lynn Morton, Clarksville, Tennessee, and Branch H. Henard, Nashville, Tennessee, for the appellant, William C. Martin, III. R. Price Nimmo and Rabin P. Nimmo, Nashville, Tennessee, for the appellee, Audrey J. Owen. Judge: CANTRELL First Paragraph: The trial court found that a mother and her adult son had both breached an oral contract whereby the son agreed to pay off the mortgage on his mother's home and to permit her to remain there for the rest of her life, and the mother agreed to give the son her equity in the home upon her death, and to allow him to use a garage apartment in the home until that time. We reverse the trial court's finding that there was an enforceable contract between the parties, but we impress a resulting trust on the son's interest in the home, which inures to his mother's benefit. http://www.tba.org/tba_files/TCA/owenaj.wpd NORMA M. SHEUCRAFT, et al. v. DEWEY LEE ROBERTS, III Court:TCA Attorneys: Randle W. Hill, Jr., Nashville, Tennessee, for the appellant, Dewey Lee Roberts, III. Phillip Robinson, Nashville, Tennessee, for the appellees, Norma M. Sheucraft and Lowell Dean Sheucraft. Judge: CAIN First Paragraph: This is a custody dispute between the maternal grandparents, Petitioners, and the biological father, Respondent. The child, Lexie, was born to Dewey and Lisa Roberts in October of 1991 and was seven years of age at the June 1999 trial. In 1995, Dewey Roberts and Lisa Sheucraft Roberts separated, and Lisa Roberts and Lexie moved in with the Petitioners. Ms. Roberts and the child continued to reside with the Petitioners until her unexpected death in 1998 from a brain aneurysm related to a cocaine overdose. The Respondent has a history of drug and alcohol abuse and, at the time of trial, was involved in an abusive relationship with a female companion. The trial court, applying the "substantial harm" test of Bond v. McKenzie, 896 S.W.2d 546 (Tenn. 1995), found that to change the residential arrangements from the grandparents' home to the father's home would be devastating to the child and would result in substantial harm to her. The trial court further found that it is in the child's best interests to spend the majority of her time with the maternal grandparents. Respondent appeals and we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/sheucraftnorma.wpd SUNTRUST BANK, NASHVILLE v. RUTH JOHNSON Court:TCA Attorneys: Michael Hinchion and Dianna Baker Shew, Nashville, Tennessee, for the appellant, SunTrust Bank, Nashville, N.A. Paul G. Summers, Attorney General and Reporter, and Christine Lapps, Assistant Attorney General, for the appellee, Ruth E. Johnson, Commissioner of Revenue. Judge: KOCH First Paragraph: This appeal involves a dispute between a commercial bank and the Tennessee Department of Revenue regarding the bank's claim for a refund of the sales taxes paid in connection with defaulted retail installment sales contracts purchased from various automobile dealers. After the Department denied its refund claim, the bank sued the Commissioner of Revenue in the Chancery Court for Davidson County seeking a refund. Both parties eventually sought a summary judgment. The trial court granted the Commissioner's motion for summary judgment after concluding that it did not have jurisdiction to consider the bank's claim. Alternatively, the trial court held that the bank was not entitled to the requested refund because it was not the dealer who originally remitted the sales tax to the Department. We have determined that the trial court erred by determining that it lacked jurisdiction to consider the bank's refund claim. However, we have also determined that the trial court correctly concluded that the bank was not entitled to the requested refund because it was not the dealer who remitted the sales tax at issue. http://www.tba.org/tba_files/TCA/suntrustbank.wpd STATE OF TENNESSEE v. BOBBY B. BARRETT Court:TCCA Attorneys: A C Wharton, Jr., Shelby County Public Defender; Tony N. Brayton, Assistant Public Defender (on appeal); and Barry Kuhn, Assistant Public Defender (at trial), for the appellant, Bobby B. Barrett. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Phyllis Gardner, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted in the Shelby County Criminal Court of rape of a child. In this appeal as of right, the defendant presents two issues, one with subparts: (1) whether the trial court erred in admitting the following: (a) testimony of the sister of the victim concerning a prior bad act of the defendant; (b) testimony of the mother of the victim concerning statements made by the victim to her following the rape; and (c) testimony of the nurse practitioner concerning statements made to her by the victim and his mother; and (2) whether the evidence was sufficient to support his conviction. We conclude that the trial court erred in admitting the testimony of the victim's sister concerning the defendant's sitting her on his lap and asking for a kiss. Nevertheless, we conclude that such error was harmless. The testimony of the mother of the victim was properly admitted pursuant to the excited utterance exception to the hearsay rule. The defendant's failure to timely object to the testimony of the nurse practitioner constitutes a waiver of that issue. We further conclude that the evidence was sufficient to support the defendant's conviction for child rape. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/barrettbb.wpd STATE OF TENNESSEE v. CLARENCE L. CURRIE Court:TCCA Attorneys: Christine W. Stephens (on appeal) and Whitten Gurkin (at trial), Memphis, Tennessee, for the appellant, Clarence L. Currie. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; William L. Gibbons, District Attorney General; and Julie Mosley, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: A jury found the defendant guilty of aggravated assault for shooting a coworker with a handgun during an altercation at their workplace. The trial court sentenced him to five years in the county workhouse, denying his request for probation. The defendant appeals his conviction and sentencing, arguing that the jury's verdict was not supported by the evidence, and that the trial court erred in sentencing him to five years imprisonment. Based upon our review, we conclude that the evidence at trial was sufficient to support the conviction, and that the nature and circumstances of the defendant's offense justifies the sentence imposed. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/curriecl.wpd STATE OF TENNESSEE v. JAMES DAVID SHROPSHIRE Court:TCCA Attorneys: Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant, James David Shropshire. Paul G. Summers, Attorney General and Reporter, Erik W. Daab, Assistant Attorney General, Randall E. Nichols, District Attorney General, and Charme Knight, Assistant District Attorney, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: In March 1996, James David Shropshire, the defendant and appellant, was convicted in the Knox County Criminal Court of aggravated sexual battery and simple assault. Following the jury's verdict, the trial court dismissed the simple assault charge. On appeal, the defendant challenges his conviction for aggravated sexual battery. He raises the following issues: (1) whether the evidence was sufficient to support the conviction; (2) whether a variance between the bill of particulars and the proof adduced at trial was fatal; (3) whether the defendant's conviction violated the double jeopardy clauses of the United States and Tennessee Constitutions; (4) whether the state made improper closing arguments; and (5) whether the trial court erred in allowing the state to introduce evidence that the defendant had committed prior bad acts. Because the jury heard evidence that the defendant committed a crime other than that for which he was on trial, which was the subject of an acquittal, the judgment of the trial court is reversed. http://www.tba.org/tba_files/TCCA/shropshirejame.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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