December 21 , 2000 Volume 6 -- Number 207 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 08 New Opinion(s) from the Tennessee Court of Appeals 03 New Opinion(s) from the Tennessee Court of Criminal Appeals 04 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. GERALD LEANDER HENRY Court:TSC Attorneys: Jeffrey A. DeVasher, David M. Siegel, and Hollis I. Moore, Jr., Assistant Public Defenders, Nashville, Tennessee, for the appellant, Gerald Leander Henry. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Daryl J. Brand, Associate Solicitor General; Victor S. Johnson III, District Attorney General; and Kymberly Haas, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: We granted this appeal to determine whether the trial court erred in admitting statements made by the co-defendant following the arrest of the defendant and the co-defendant for first-degree murder, attempted first-degree murder and related offenses. The Court of Criminal Appeals concluded that although the conspiracy to commit the offenses had ended, the co-defendant's statements were made during the course of and in furtherance of a separate conspiracy to conceal the offenses and were admissible pursuant to the co-conspirator exception to the hearsay rule set out in Tenn. R. Evid. 803(1.2)(E). After reviewing the record, we conclude that the co-defendant's statements were made after the conspiracy had ended and, therefore, were not admissible under Tenn. R. Evid. 803(1.2)(E). We further conclude, however, that the error was harmless, and we affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/henrygl.wpd BILLY WAYNE LESLIE v. STATE OF TENNESSEE. Court:TSC Attorneys: John E. Herbison, Nashville, Tennessee, for the appellant, Billy Wayne Leslie. Michael E. Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and John C. Zimmermann, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: We granted review in this post-conviction case to determine whether the trial court erred by allowing the appellant's appointed attorneys to withdraw and refusing to appoint new counsel. A majority of the Court of Criminal Appeals held that the trial court did not err either by allowing the appointed attorneys to withdraw or by refusing to appoint new counsel because the appellant had abused the post-conviction process. We conclude, and the State concedes, that the trial court erred by allowing counsel to withdraw without a hearing and failing to appoint new counsel. We therefore reverse the Court of Criminal Appeals' judgment and remand the case to the trial court for the appointment of counsel and proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/lesliebw.wpd ANTHONY MAESTAS, et al. v. SOFAMOR DANEK GROUP, INC., et al. Court:TSC Attorneys: Andrea S. Lestelle and Roy F. Amedee, Jr., Metairie, Louisiana, John A. Day, Nashville, Tennessee, and Lisa June Cox, Jackson, Tennessee, for the appellants, Anthony Maestas, Eugenio Camara, Paul Hill, and William Shook. George Lehner, Washington, D.C., Murray Levin, Philadelphia, Pennsylvania, and Sam B. Blair, Jr., Memphis, Tennessee, for the appellees, Danek Medical, Inc. and Warsaw Orthopedics, Inc. George Lehner, Washington, D.C., Glen G. Reid, Jr., John Barry Burgess, and Sam B. Blair, Jr., Memphis, Tennessee, and Murray Levin, Philadelphia, Pennsylvania, for the appellee, Sofamor Danek Group, Inc. Buckner Potts Wellford, Memphis, Tennessee, Carl R. Schenker, Jr., Washington, D.C., and Hugh F. Young, Jr., Reston, Virginia, for the amicus curiae, Product Liability Advisory Council, Inc. J. Mark Rogers, Murfreesboro, Tennessee, for the amicus curiae, Tennessee Trial Lawyers Association. Judge: HOLDER First Paragraph: The plaintiffs alleged that defendants' products, surgically implanted in their backs, were defective. The trial court granted summary judgment for defendants on grounds that the statute of limitations had expired. The plaintiffs appealed, contending that: 1) genuine issues of material fact existed as to whether the statute of limitations was tolled by the "discovery rule"; and 2) under the doctrine of "cross-jurisdictional tolling," the statute of limitations was tolled during the period in which the plaintiffs sought class certification in a class action filed in federal court. We decline to adopt the doctrine of cross-jurisdictional tolling. As the plaintiffs have conceded a "universal date of discovery" that is outside the applicable statute of limitations, our rejection of cross-jurisdictional tolling renders the plaintiffs' claims time-barred. Accordingly, we need not address the "discovery rule" issue raised by plaintiffs. The judgment of the Court of Appeals, affirming the trial court's grant of summary judgment, is hereby affirmed. http://www.tba.org/tba_files/TSC/maestasa.wpd JAMES VERTNER ARMS v. RICHARD D. STANTON, individually and d/b/a Shiloh Family, Ltd. Court:TCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the appellant, Richard D. Stanton, individually and d/b/a Shiloh Family, Ltd. Timothy K. Barnes, Clarksville, Tennessee, for the appellee, James Vertner Arms. Judge: SUSANO First Paragraph: In what started out as an order of protection proceeding but later turned into a "divorce" action, the original plaintiff, James Vertner Arms, who was the counter-defendant in the "divorce" case, filed a third-party action against Richard D. Stanton, individually and doing business as Shiloh Family, Ltd. ("Stanton"). Stanton had purchased a tract of real property from the counter-plaintiff, Tammy Lou Arms, subsequent to the institution of her "divorce" action against Mr. Arms. The trial court determined that Mr. Arms and Tammy Lou Arms were not validly married; it proceeded to set aside the transfer as a fraudulent conveyance and awarded Stanton a judgment against Tammy Lou Arms for $50,000. Stanton appeals, arguing that the trial court erred in setting aside the conveyance. We reverse. http://www.tba.org/tba_files/TCA/armsjv.wpd ROBERT LEE CASTLEMAN v. SALLY LUTHER BROWN CASTLEMAN Court:TCA Attorneys: Thomas F. Bloom, Nashville, Tennessee, for the appellant, Sally Luther Castleman. Connie Reguli, Nashville, Tennessee, for the appellee, Robert Lee Castleman. Judge: COTTRELL First Paragraph: Mother appeals the trial court's denial of her motion to set aside a default judgment awarding divorce to Father, distributing marital property, and awarding custody of the minor child to Father. Because no evidence was heard regarding factors which must be considered by a court in making these determinations, we reverse the trial court's denial of her motion to set aside the default judgment and remand this matter for a trial on the merits. http://www.tba.org/tba_files/TCA/castlemanr.wpd KENNETH HENDERSON v. DEPARTMENT OF SAFETY Court:TCA Attorneys: Kenneth Henderson, Only, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michael A. Meyer, for the appellee, Department of Safety. Judge: CAIN First Paragraph: Kenneth Henderson appeals pro se from an order of the Chancery Court of Davidson County dismissing his case for failure to prosecute his petition for review under Tennessee Code Annotated section 4-5-322 under which he sought judicial review of a judgment of Administrative Law Judge Marian Wall, which judgment had become final on December 29, 1995 with petition for reconsideration being denied on January 28, 1996. We affirm the action of the trial judge. http://www.tba.org/tba_files/TCA/hendersonkenneth.wpd WARDELL LEWIS V. STATE OF TENNESSEE Court:TCA Attorneys: Wardell Lewis, Only, Tennessee, Pro Se. Paul G. Summers, Attorney General & Reporter; Clinton J. Morgan, Counsel; William Paul Phillips, District Attorney General; Michael O. Ripley, Assistant District Attorney, for the appellee, State of Tennessee Judge: ACREE First Paragraph: The petitioner appeals the dismissal of his petition for post-conviction relief. The trial court dismissed the petition because it was not filed within one year of the date on which the judgments became final. We affirm the trial court. http://www.tba.org/tba_files/TCA/lewisw.wpd JAMES A. MOSS v. VANDERBILT UNIVERSITY MEDICAL CENTER Court:TCA Attorneys: James A. Moss, Columbia, Tennessee, Pro Se. Steven Edward Anderson, Nashville, Tennessee, for the appellee, Vanderbilt University Medical Center. Judge: CAIN First Paragraph: Pro se Plaintiff appeals the dismissal by the trial court of his case on the basis of failure to assert a claim upon which relief can be granted. We affirm the action of the trial court. http://www.tba.org/tba_files/TCA/mossjsa.wpd NEXT GENERATION, INC., v. WAL-MART, INC., d/b/a SAM'S WHOLESALE CLUB Court:TCA Attorneys: William L. Brown and James T. Williams, Chattanooga, Tennessee, for Appellant, Next Generation, Inc. Thomas Pinckney, Andy Rowlett, and Keith Quinn, Nashville, Tennessee, for Appellee, Wal-Mart Stores, Inc., d/b/a Sam's Wholesale Club. Judge: FRANKS First Paragraph: In this contract dispute, the jury awarded damages to Wal-Mart, Inc., and the Trial Court concurred. Next Generation, Inc., appealed raising issues as to the admissibility of evidence and the Trial Court's instructions to the jury. We affirm. http://www.tba.org/tba_files/TCA/nextgen.wpd TAMMY SEARLE v. KEITH PFISTER Court:TCA Attorneys: R. E. Lee Davies and P. Edward Schell, Franklin, Tennessee, for the appellant, Keith Pfister. Sandra Jones, Nashville, Tennessee, for the appellee, Tammy Searle. Judge: CANTRELL First Paragraph: The unmarried parents of a young child separated, and the mother subsequently filed a petition to modify the father's visitation so she could move to California with her new boyfriend. The trial court initially denied her petition, but reversed itself after the mother and the boyfriend married. On appeal, the father argues that the trial court erred because it failed to recognize the mother's vindictive motive. We affirm the trial court. http://www.tba.org/tba_files/TCA/searlet.wpd HIRAM SEIBERS, JR. v. PEPSI-COLA BOTTLING COMPANY, et al. Court:TCA Attorneys: Samuel J. Harris, Cookeville, Tennessee, for the appellant, Hiram Seibers, Jr. Winston S. Evans, Nashville, Tennessee, for the appellee, Jerry A. Jared. Judge: KOCH First Paragraph: This case involves a dispute between a lawyer and his former client over a fee in a personal injury case. The client discharged the lawyer before the case was concluded and agreed to give the lawyer a lien on the potential recovery for the work the lawyer had already performed. When the lawyer attempted to collect his fee after the case was settled by another lawyer, the former client asserted that the lawyer should forfeit his fee because he engaged in unethical conduct. Following a bench trial, the trial court found that the lawyer had "technically" violated Tenn. S. Ct. R. 8, DR 5-105(A) but that the lawyer's conduct had not prejudiced the client and that the client had waived his conflict- of-interest claims. Accordingly, the trial court awarded the lawyer $69,525.83 in legal fees and expenses. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCA/seibersh.wpd STATE OF TENNESSEE v. CLARENCE BRADDOCK, JR. Court:TCCA Attorneys: Jeannie Kaess, for the appellant, Clarence Braddock, Jr. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; Elizabeth Rice, District Attorney General; and J. Walter Freeland, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Clarence Braddock, Jr., entered a guilty plea to the offense of introduction of contraband into a penal institution, a Class C felony. After a sentencing hearing, he was denied alternative sentencing and was sentenced to three years incarceration. In this appeal as of right, the Defendant asserts that the trial court erred by denying him alternative sentencing. We hold that the Defendant was properly denied alternative sentencing; thus, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/braddockc.wpd STATE OF TENNESSEE v. JAMES L. COLE Court:TCCA Attorneys: Tony N. Brayton and Larry Nance, Assistant Public Defenders, Memphis, Tennessee, for the appellant, James L. Cole. Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assitant Attorney General; William L. Gibbons, District Attorney General; and Jerry Harris, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, James L. Cole, appeals as of right from his first degree felony murder conviction. On appeal, he asserts that the evidence was insufficient to support his conviction. We hold that the evidence was sufficient to support the Defendant's conviction; accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/colejl.wpd State of Tennessee v. Lester Parker Court:TCCA Attorneys: Jon A. Anderson, for the appellant. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; Michael Flynn, District Attorney General; and William Reed, Assistant District Attorney, for the appellee, State of Tennessee. Judge: First Paragraph: The defendant appeals from a jury trial conviction for criminal attempt to possess Schedule II controlled substance with intent to deliver. In the appeal, the defendant alleges that the evidence was insufficient to support the jury's verdict, the trial court erred in allowing a positive drug test of the defendant to be admitted into evidence, and the trial court erred in denying the defendant's motion to remand the case to the General Sessions Court for a preliminary hearing. We conclude that the issues presented for appeal are without merit and affirm the trial court. http://www.tba.org/tba_files/TCCA/parkerl.wpd Legality of Reallocation of Funds Raised Pursuant to Tenn. Code Ann. S9-21-201, et al. - General Obligation Bonds Date: December 14, 2000 Opinion Number: 00-186 http://www.tba.org/tba_files/AG/OP186.pdf County's Authority to Levy Local Litigation Tax for Jail or Workhouse Construction Project under Tenn. Code Ann. S 67-4-601(b) Date: December 14, 2000 Opinion Number: 00-187 http://www.tba.org/tba_files/AG/OP187.pdf Collection of Litigation Tax in Appeals Date: December 14, 2000 Opinion Number: 00-188 http://www.tba.org/tba_files/AG/OP188.pdf Regulatory Authority of the Commissioner of the Tennessee Department of Agriculture Date: December 20, 2000 Opinion Number: 00-189 http://www.tba.org/tba_files/AG/OP189.pdf 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. 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