January 12, 2001 Volume 7 -- Number 009 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):   02 New Opinion(s) from the Tennessee Supreme Court 02 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 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 DAVID CHENAULT v. JEFF L. WALKER, et al. Court:TSC Attorneys: Allan B. Thorp, Memphis, Tennessee, for the appellants, Jo Bursey, Ocean Inn, Inc., and Dimension III Financial, Inc. Les Jones and Scott J. Crosby, Memphis, Tennessee, for the appellee, David Chenault. Judge: DROWOTA First Paragraph: The issue in this case is whether the Tennessee long arm statute, Tenn. Code Ann. S 20-2-214, and the Fourteenth Amendment to the United States Constitution allow courts in Tennessee to obtain personal jurisdiction over a defendant based on what has been termed the "conspiracy theory" of personal jurisdiction. This theory holds that an out-of-state defendant involved in a conspiracy who lacks sufficient "minimum contacts" with the forum state may nevertheless be subject to jurisdiction because of a co-conspirator's contacts with the forum. The Court of Appeals adopted this theory, applied it to the plaintiff's case, and consequently affirmed the trial court's denial of the defendants' motion to dismiss pursuant to Tennessee Rules of Civil Procedure 12.02(2). For the reasons discussed below, we affirm. http://www.tba.org/tba_files/TSC/chenaultd.wpd ED REEVES, d/b/a ED'S IMPORTS v. GRANITE STATE INSURANCE CO. Court:TSC Attorneys: William G. McCaskill, Jr., Nashville, Tennessee, for the appellant, Granite State Insurance Co. Robert S. Peters, Winchester, Tennessee, for the appellee, Ed Reeves. Judge: BIRCH First Paragraph: We accepted review in this case to determine whether the rights of Ed Reeves, the loss payee, were extinguished by cancellation of an automobile policy by the issuer, Granite State Insurance Co., where the cancellation had been occasioned by the insured's misrepresentation. The trial court found that the policy should be construed to require notice to the loss payee before cancellation could affect the loss payee, that any ambiguity should be resolved in favor of the loss payee, and that the loss occurred prior to the notice of cancellation of the policy. The Court of Appeals affirmed. We conclude that Granite State cannot extinguish the loss payee's interest because of acts or omissions of the insured except those enumerated in the loss payable clause, which is of the standard/union type. Accordingly, the judgment of the Court of Appeals is affirmed. http://www.tba.org/tba_files/TSC/reevese.wpd ANNA D. NICHOLSON v. WAL-MART STORES, INC. Court:TSC - Workers Comp Panel Attorneys: James C. Bradshaw, III and Stephen J. Zralek, Nashville, Tennessee, for the appellant, Anna D. Nicholson. B. Chadwick Rickman, Knoxville, Tennessee, for the appellee, Wal-Mart Stores, Inc. Judge: LOSER First Paragraph: The employee contends the trial court erred when it ruled that her claim was time barred, because the action was commenced within one year after cessation of benefits and because the employer waived its right to rely on the statutes of limitations. http://www.tba.org/tba_files/TSC_WCP/nicholsann.wpd RICHARD SCOTT STAINFORTH v. CHEMETALS, INC., et al. Court:TSC - Workers Comp Panel Attorneys: William B. Walk, Memphis, Tennessee, for the appellants, Chemetals, Inc., et al. Charles L. Hicks, Camden, Tennessee, for the appellee, Richard Scott Stainforth. Judge: LOSER First Paragraph: This civil action was commenced by the employee or claimant, Stainforth, on July 17, 1998, for the recovery of medical and disability benefits under the Workers' Compensation Act, Tenn. Code Ann. S 50-6-101 et seq. The Second Injury Fund was originally sued, but is not a party to this appeal. The employer, Chemetals, and its workers' compensation insurer or administrator denied any liability. After a trial on the merits on June 3, 1999, the trial court awarded medical and disability benefits. The employer has appealed, asserting that (1) the trial court erred in finding that the claimant's injury arose out of the employment relationship between the parties, (2) the trial court erred in finding that the claimant suffered an injury by accident, (3) the trial court erred in accepting the anatomical impairment rating of Dr. Joseph Boals, and (4) the award of permanent partial disability benefits is excessive. http://www.tba.org/tba_files/TSC_WCP/stainforth.wpd REBECCA RENEE JAMES WEAVER COOPER v. PORTER HALL COOPER Court:TCA Attorneys: J. Michael Fletcher, for Appellant Everett B. Gibson, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a dispute over a term in a Property Settlement Agreement that obligated Mr. Cooper to pay for his son's college education. Ms. Cooper sought reimbursement for various expenses totaling over $16,000.00 associated with her son's first year of college at Mississippi State University. Mr. Cooper argues that he should be liable only for the cost of tuition, fees, and books. For the following reasons, we affirm as modified and remand. http://www.tba.org/tba_files/TCA/cooperrebecca.wpd JERRY MANESS, et ux. v. CHARLES WOODS, SHERIFF OF HENDERSON COUNTY, TENNESSEE, et al. Court:TCA Attorneys: Lloyd R. Tatum, Henderson, Tennessee, for the appellants, Jerry Maness and Patty Maness. James I. Pentecost and Andrew V. Sellers, Jackson, Tennessee, for the appellees, Charles Woods, Sheriff of Henderson County, Tennessee, and Henderson County, Tennessee. Judge: FARMER First Paragraph: This is an appeal by Plaintiffs from a grant of summary judgment in favor of Defendants. Plaintiffs sued to recover property which they claim was wrongfully seized by employees of the Defendant. Defendants filed a request for admissions which included an admission that the property seized did not belong to Plaintiffs. Plaintiffs failed to timely respond and thus the admission was conclusively established. We affirm. http://www.tba.org/tba_files/TCA/manessjerry.wpd MARY WILLIAMS SLACK, et al. v. BRYAN ANTWINE Court:TCA Attorneys: David A. Riddick, Jackson, For Appellant, Bryan Antwine M. Dianne Smothers, Jackson, for Appellee, Mary Williams Slack Judge: CRAWFORD First Paragraph: Plaintiffs sued to quiet title to property and to establish boundary line. The trial court found that the deed description of plaintiffs' property established their title to the disputed property. Defendant has appealed. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/slackmar.wpd CAROLYN STRANGE v. RONNIE W. PETERSON, et al. Court:TCA Attorneys: James E. Conley, Jr., for Appellant Douglas A. McTyier, for Appellees Judge: HIGHERS First Paragraph: This case arises out of the sale of a home. The Appellants claim that the Sellers fraudulently or negligently misrepresented the condition of the home. Specifically, the Appellants claim that the Sellers failed to disclose a water problem located in the crawlspace underneath the home. For the following reasons, we affirm the finding of the trial court that the Sellers are not guilty of fraudulent or negligent misrepresentation. http://www.tba.org/tba_files/TCA/strangecarolyn.wpd STATE OF TENNESSEE v. CHARLES ARNOLD BALLINGER Court:TCCA Attorneys: Michael M. Raulston, Chattanooga, Tennessee, attorney for the appellant, Charles Arnold Ballinger. Paul G. Summers, Attorney General and Reporter, Patricia C. Kussmann, Assistant Attorney General and Jerry N. Estes, District Attorney General and Stephen D. Crump, Assistant District Attorney, attorneys for the appellee, State of Tennessee. Judge: SMITH First Paragraph: On October 14, 1998, a Bradley County Grand Jury indicted Charles Ballinger, the defendant and appellant, for statutory rape and contributing to the delinquency of a minor. Following a jury trial, the defendant was convicted on both counts. The court sentenced the defendant to serve two years for statutory rape concurrently with eleven months and twenty-nine days for contributing to the delinquency of a minor. On appeal, the defendant claims (1) that the evidence was insufficient to support a statutory rape conviction, (2) that the trial court should have suppressed a tape recording of a telephone conversation, (3) that the defendant's sentence was excessive, and (4) that the trial court should have instructed the jury to consider mistake of fact as a defense. Because we find that statutory rape requires proof of at least a "recklessness" mens rea and that the trial court should have instructed the jury to consider mistake of fact as a defense to statutory rape, we reverse the judgment of the trial court and remand this case for a new trial. http://www.tba.org/tba_files/TCCA/ballingercha.wpd STATE OF TENNESSEE v. ADARRYL DEVON BROOKS Court:TCCA Attorneys: Steve McEwen and Joseph P. Atnip, District Public Defender, and Kevin McAlpin, Assistant District Public Defender, for the appellant, Adarryl Devon Brooks. Paul G. Summers, Attorney General, Kim R. Helper, Assistant Attorney General, Thomas A. Thomas, District Attorney General, and James T. Cannon, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: CLARK First Paragraph: Defendant appeals as of right his jury conviction of possession of 0.5 grams or more of cocaine with intent to sell and criminal impersonation. He raises two issues: (1) that the evidence was insufficient to support a conviction for possession of a controlled substance with intent to sell; and (2) that the trial court erred in denying his motion to suppress his statements, and permitting introduction of those statements at trial. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/brooksad.wpd JESSE DANIEL HALL v. STATE OF TENNESSEE Court:TCCA Attorneys: Jesse Daniel Hall, Henning, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; William L. Gibbons, District Attorney General; and John W. Campbell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: This is a post-conviction appeal. In 1988, appellant was convicted of robbery with a deadly weapon and received a life sentence. Thereafter, the appellant filed a petition for post-conviction relief, attacking his conviction on the grounds of ineffective assistance of counsel. The trial court denied relief, and this Court affirmed the judgment of the trial court. Subsequently, the appellant filed the instant three petitions for post-conviction relief. Two of appellant's petitions attack the validity of the petitioner's convictions for grand larceny and third degree burglary, which were used to enhance his 1988 sentence for robbery with a deadly weapon. The third petition addresses the 1988 sentence and attacks the sufficiency of the evidence with regard to another of petitioner's prior convictions. The trial court summarily dismissed the petitions for failing to comply with the applicable statute of limitations and failing to state an appropriate ground upon which a successive petition could be lodged. The judgment of the trial court dismissing the petitions is affirmed. http://www.tba.org/tba_files/TCCA/halljd.wpd STATE OF TENNESSEE v. MARTIN CHARLES JONES Court:TCCA Attorneys: Russell Thompson Greene, Knoxville, Tennessee, for the Appellant, Martin Charles Jones. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Mark A. Fulks, Assistant Attorney General, Randall E. Nichols, District Attorney General, and Scott Greene, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Martin Charles Jones, pled guilty to nine counts of criminal exposure to HIV, class C felonies, and to three counts of statutory rape, class E felonies. Following a sentencing hearing, the Knox County Criminal Court imposed an effective sentence of seventeen years incarceration. On appeal, the Appellant asserts that the trial court erred by denying his request for alternative sentencing. After review, we find no error and affirm the judgment. http://www.tba.org/tba_files/TCCA/jonesml.wpd State of Tennessee v. Danny Wayne Ratliff Court:TCCA Attorneys: William A. Kennedy, for the appellant. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Counsel; H. Greenley Wells, Jr., District Attorney General; Robert Montgomery, Assistant District Attorney, for the appellee, State of Tennessee. Judge: ACREE First Paragraph: The defendant appeals his conviction of reckless endangerment with a deadly weapon and vandalism under $500.00. He contends the evidence was insufficient to support the verdict of the jury, the sentence of two years was excessive, and the trial court erred in sentencing the defendant to community corrections with the condition that he serve 200 days in the county jail. We find no error and affirm the trial court. http://www.tba.org/tba_files/TCCA/ratliffd.opn ANTWAIN LAMAN SPEARS v. STATE OF TENNESSEE Court:TCCA Attorneys: Steven L. West, McKenzie, Tennessee, attorney for the appellant, Antwain Laman Spears. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; G. Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner appeals the trial court's denial of his post-conviction petition, contending that he received ineffective assistance of counsel. We affirm the trial court's denial of the petition. http://www.tba.org/tba_files/TCCA/spearsal.wpd STATE OF TENNESSEE v. BRUCE MONROE STEVENSON Court:TCCA Attorneys: Richard Hughes, Jr., Assistant Public Defender, Cleveland, Tennessee, for the appellant, Bruce Stevenson. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Stephen D. Crump, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Bruce Stevenson, pled guilty to rape, robbery, aggravated assault and evading arrest. The trial court imposed sentences of ten years for the rape conviction, five years each for the robbery and aggravated assault convictions and two years for the evading arrest conviction. Because the sentence for rape was ordered to be served consecutively, the effective sentence was 15 years. In this appeal of right, the defendant challenges the application of the following enhancement factors: (1) The defendant has a previous history of criminal convictions or criminal behavior; (2) the defendant had no hesitation about committing a crime when the risk to human life was high; (3) the crime was committed under circumstances under which the potential for bodily injury to the victim was great; and (4) the defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if committed by an adult. See Tenn. Code Ann. S 40-35-114. Additionally, the defendant contends that consecutive sentences were not warranted. The conviction is affirmed. Due to the misapplication of enhancement factors, the sentence for aggravated assault is modified to three years and the sentence for evading arrest is reduced to one year. Because the 10 year sentence for rape and the five year sentence for robbery remain the same and because consecutive sentencing is proper, the effective sentence remains at 15 years. http://www.tba.org/tba_files/TCCA/stevensonbm.wpd STATE OF TENNESSEE v. MICHAEL G. UPSHAW WITH CONCURRING OPINION Court:TCCA Attorneys: William D. Massey and Lorna S. McClusky, Memphis, Tennessee, for the appellant, Michael G. Upshaw. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Karen Cook and James Turner, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Michael G. Upshaw, was indicted and convicted of second degree murder. The trial court imposed a Range I sentence of 24 years in the Department of Correction. In this appeal of right, the defendant has preserved for our review the following issues: (1) whether the trial court erred by denying defendant's motion to suppress a statement made in police custody; (2) whether the trial court erred by allowing certain photographs of the victim to be entered into evidence; (3) whether the trial court erred by finding the evidence sufficient to support a conviction of murder in the second degree; (4) whether the trial court erred by refusing to charge the jury on the lesser included offenses such as voluntary manslaughter or criminally negligent homicide; and (5) whether the trial court properly weighed the appropriate mitigating and enhancing factors during sentencing. We find no error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/upshawmg_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/upshawmg_con.wpd STATE OF TENNESSEE V. JAMES M. WILLIAMS Court:TCCA Attorneys: Robert M. Brannon and Thomas E. Hansom, Memphis, Tennessee, for the appellant, James M. Williams. Michael E. Moore, Solicitor General; Kim R. Helper, Assistant Attorney General; Perry Hayes, Assistant District Attorney General; and Tom Henderson; Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: This appeal arises from the sentence that the Shelby County Criminal Court imposed upon James M. Williams, after a previous appeal to this court resulted in a modification of his original two-year incarcerative sentence to a sentence ordered to be served on probation. The defendant contests the trial court's authority to resentence him to serve 60 days in a correctional facility, with the balance of his two-year sentence to be served on probation. The defendant also challenges his new sentence as the product of judicial vindictiveness, and he claims that he is entitled to full probation based on the facts of the case. After a review of the record, we reverse the split-confinement sentence, order that the defendant serve his sentence on full probation with conditions, and remand for defendant to begin immediate service of his sentence. http://www.tba.org/tba_files/TCCA/williamsjm.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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