December 29 , 2000 Volume 6 -- Number 210 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 01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 04 New Opinion(s) from the Tennessee Court of Appeals 07 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 DARLENE MOORE COLLINS v. CMH MANUFACTURING, INC. (ALSO REFERRED TO AS "NORRIS, INC.") Court:TSC - Workers Comp Panel Attorneys: Linda J. Hamilton Mowles, Esq., Knoxville, Tennessee, for the appellant, CMH Mfg., Inc. (also referred to as "Norris Inc.") James E. Davis, Morristown, Tennessee, for the appellee, Darlene Moore Collins. Judge: BYERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the plaintiff sixty-five percent impairment due to occupational asthma and awarded prejudgment interest to accrued benefits. The defendant argues the trial court's award was excessive because the plaintiff failed to adequately prove through medical testimony the causation and extent of her impairment. The defendant also appeals the amount of prejudgment interest. We affirm the judgment of the trial court as to the impairment award and remand for further findings of facts with regard to the prejudgment interest award. http://www.tba.org/tba_files/TSC_WCP/collins.opn CLIFTON DEAN FAIN v. SUSAN LORRAINE FAIN Court:TCA Attorneys: Lew Conner, Grant C. Glassford, and Bryan E. Pieper, Nashville, Tennessee, for the appellant, Clifton Dean Fain. Charles G. Blackard, III, Brentwood, Tennessee, for the appellee, Susan Lorraine Fain. Judge: SUSANO First Paragraph: In this post-divorce proceeding, Clifton Dean Fain ("Father") filed a petition seeking sole custody of the parties' minor child. Susan Lorraine Fain ("Mother") counterclaimed for a modification of the joint custody arrangement or, in the alternative, for sole custody of the child. The trial court awarded Mother sole custody. Father appeals the award of sole custody to Mother. He also challenges the award of attorney's fees to Mother and questions the fairness of the quantum of his visitation time with the child. Mother seeks attorney's fees for this appeal. We affirm. http://www.tba.org/tba_files/TCA/faincd.wpd MAELENE FOWLER, et ux. v. JERRY WILBANKS Court:TCA Attorneys: Ken Seaton, Selmer, For Appellant, Jerry Wilbanks Terry Abernathy, Selmer, For Appellees, Maelene Fowler and W. F. Fowler Judge: CRAWFORD First Paragraph: Plaintiffs sued to enjoin Defendant from denying their right to use a private dirt and gravel road on Defendant's property in order to access their property. The trial court held that Plaintiffs established an easement by implication and/or prescription in the private road, and enjoined Defendant from preventing Plaintiffs' future access to the road. Defendant appeals. http://www.tba.org/tba_files/TCA/fowlermae.wpd JERRY L. LUSTER v. ALAN BARGERY, et al Court:TCA Attorneys: Jerry Luster, Pro Se Tom Anderson, Jackson, For Appellee Alan Bargery Judge: CRAWFORD First Paragraph: Prisoner filed petition for habeas corpus alleging that he received an amended sentence of six years for drug violation instead of the original eight-year sentence with probation. Petitioner alleges that upon revocation of probation, he was ordered to serve the eight-year sentence instead of the six-year amended sentence. The trial court dismissed the petition, and petitioner has appealed. http://www.tba.org/tba_files/TCA/lusterjer.wpd NANCY SCHULZE RECORD v. BRIAN VERNON RECORD Court:TCA Attorneys: Barry Gilmore, Memphis, For Appellant, Brian Vernon Record Dorothy J. Pounders, Memphis, For Appellee, Nancy Schulze Record Judge: CRAWFORD First Paragraph: Husband appeals a final decree of divorce as it pertains to an upward deviation of child support, division of marital property and debt, and the award of alimony in solido for attorney fees. We affirm as modified. http://www.tba.org/tba_files/TCA/recordnan.wpd STATE OF TENNESSEE v. ZANE ALLEN DAVIS, JR. Court:TCCA Attorneys: Lee Ofman, Franklin, Tennessee, for the appellant, Zane Allen Davis, Jr. Paul G. Summers, Attorney General and Reporter; Marvin S. Blair, Jr., Assistant Attorney General; Ronald L. Davis, District Attorney General; Lee E. Dryer, Assistant District Attorney. Judge: WOODALL First Paragraph: Defendant Zane Allen Davis was found guilty by a Williamson County jury of violating Tenn. Code Ann. S55-10-401(a)(2), driving a vehicle while the alcohol concentration in the driver's blood or breath was ten-hundredths of one percent (0.10%) or more, a Class A misdemeanor. The trial court sentenced Defendant to eleven months and twenty-nine days, with the sentence suspended after Defendant served thirty days in the County Jail, and a $1250 fine. Defendant raises the following issues in his appeal: (1) whether the trial court erred when it ruled that the State was not required under Tenn. R. Crim. P. 16 to provide Defendant with documentation pertaining to the reliability of his blood alcohol test results; (2) whether the trial court erred when it quashed Defendant's subpoena duces tecum requesting the State's expert to bring documentation, previously ruled undiscoverable under Tenn. R. Crim. P. 16, to trial; (3) whether the trial court erred by allowing the State's expert witness to testify without first laying the proper foundation; and (4) whether the trial court erred when it limited Defendant's proof at trial regarding the arresting officer's motive. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/davisza.wpd WILLIAM FLOYD v. STATE OF TENNESSEE Court:TCCA Attorneys: Dale W. Peterson, Woodbury, Tennessee, for the Appellant, William Floyd. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Russell S. Baldwin, Assistant Attorney General, William C. Whitesell, Jr., District Attorney General, and Dale L. Puckett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: William Floyd appeals the dismissal of his petition for post-conviction relief. In 1998, Floyd pled guilty to two counts of rape and, under the terms of his plea agreement, was sentenced to twenty years imprisonment. In his petition for post-conviction relief, Floyd contends that his guilty pleas are involuntary because on the date his pleas were entered he was under the influence of prescribed psychotropic drugs. The petition was dismissed by the post-conviction court and this appeal follows. Finding that the evidence in the record does not support Floyd's claim, we affirm the lower court's dismissal. http://www.tba.org/tba_files/TCCA/floydwm.wpd STATE OF TENNESSEE v. STEPHEN T. MAYS, also known as STEPHEN T. MAYES Court:TCCA Attorneys: Neal Agee, Jr., Lebanon, Tennessee, for the Appellant, Stephen T. Mays, also known as Stephen T. Mayes. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Marvin E. Clements, Jr., Assistant Attorney General, Victor S. (Torry) Johnson, III, District Attorney General, and Bret Gunn, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Stephen T. Mays, pled guilty to two counts of theft of property over $10,000 and received two concurrent five-year sentences. Following a sentencing hearing, the trial court imposed split confinement sentences and ordered the Appellant to serve a ninety-day period of confinement. The court also ordered restitution with scheduled payments over a ten-year period. On appeal, the Appellant argues (1) that the trial court erred in failing to grant the Appellant's request for total probation; and (2) that the trial court improperly established restitution. After review, the judgment of the Davidson County Criminal Court is affirmed. http://www.tba.org/tba_files/TCCA/maysst.wpd STATE OF TENNESSEE v. BEVERLY K. MEEKS Court:TCCA Attorneys: Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the appellant, Beverly Meeks. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Mike McCowen, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee Judge: WELLES First Paragraph: The Defendant, Beverly K. Meeks, entered best interest guilty pleas to charges of child neglect, a Class D felony, and resisting arrest, a Class B misdemeanor. She received agreed sentences of three years for child neglect and three months for resisting arrest, with the sentences to be served concurrently. The manner of service of those sentences was to be determined by the trial court. After a sentencing hearing, the trial court ordered the Defendant to serve her sentences in confinement. In this appeal as of right, the Defendant argues that the trial court erred by denying her an alternative sentence. She asserts that she should have been placed on community corrections. We find no error; accordingly, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/meeksbk.wpd MARK E. OLIVER v. STATE OF TENNESSEE Court:TCCA Attorneys: Mark E. Oliver, Only, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Ron Davis, District Attorney General; and Marvin E. Clements, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner, Mark E. Oliver, appeals as of right from the dismissal of his petition for writ of habeas corpus. He contends that his original sentence of sixty years as a Range II offender for the offense of second degree murder is an illegal sentence because the trial court was without jurisdiction to sentence him under the Criminal Sentencing Reform Act of 1982. We hold that the trial court lacked jurisdiction to sentence the petitioner under the 1982 Act; therefore, the sentence imposed is an illegal sentence. We remand this case to the trial court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/oliverme.wpd STATE OF TENNESSEE v. GREGORY LYNN REDDEN Court:TCCA Attorneys: Joe R. (Jay) Johnson, Springfield, Tennessee, for the Appellant, Gregory Lynn Redden. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Marvin E. Clements, Jr., Assistant Attorney General, John Wesley Carney, Jr., District Attorney General, and Joel Perry, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Gregory Lynn Redden, was convicted by a Robertson County jury of burglary, theft of property over $1,000, and criminal impersonation. He received concurrent sentences of twelve years for burglary, twelve years for theft of property, and six months for criminal impersonation. On appeal, the Appellant raises the following three issues for our review: (1) whether the evidence was sufficient to support the verdict; (2) whether the trial court erred in not excusing two jurors for cause during voir dire; and (3) whether the trial court erred by allowing the statement of the Appellant's confession into evidence. After review, we find no error and affirm the judgment. http://www.tba.org/tba_files/TCCA/reddengl.wpd STATE OF TENNESSEE v. MARK A. SCARBOROUGH Court:TCCA Attorneys: Gary M. Howell, Columbia, Tennessee, for the Appellant, Mark A. Scarborough. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Marvin E. Clements, Jr., Assistant Attorney General, Ronald L. Davis, District Attorney General, and Lee Dryer, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: Mark A. Scarborough appeals the sentencing decision of the Hickman County Circuit Court following his jury conviction of driving under the influence. The issue of enhanced punishment as a prior DUI offender was submitted to the trial court. The court found the Appellant guilty of DUI, third offense, and sentenced him to eleven months, twenty-nine days with 180 days to be served in confinement followed by six months probation. At the motion for new trial, the trial court modified its prior ruling and reduced the Appellant's conviction to DUI, second offense. The Appellant's 180- day period of confinement was not modified. On appeal, the Appellant argues that the trial court erred in failing to reduce his sentence after it reduced his conviction from DUI, third offense, to DUI, second offense. Because the record is incomplete for review, we afford the sentence imposed by the trial court the presumption of correctness. 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