February 14, 2001 Volume 7 -- Number 029 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 07 New Opinion(s) from the Tennessee Court of Appeals 14 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 JIM BELL v. RICH PRODUCTS CORPORATION Court:TSC - Workers Comp Panel Attorneys: Stacey Cason and Terry L. Hill, Manier & Herod, Nashville, Tennessee, for the appellant, Rich Products Corporation. Dicken E. Kidwell, Murfreesboro, Tennessee, for the appellee, Jim Bell. Judge: LOSER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer insists the award of permanent partial disability benefits is excessive and that the trial court erred in commuting the award to a lump sum. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/belljim.wpd J. W. HARGROVE, et al. v. LARRY E. CARLTON, et al. Court:TCA Attorneys: Jason A. Golden, Columbia, Tennessee, for the appellants, J. W. Hargrove, Pat Hargrove, Jennifer Hargrove, Janie Louise Hargrove, Lurene Nalls, and John C. Peach. C. Dewees Berry, IV and Susan W. Foxman, Nashville, Tennessee, for the appellees, Larry E. Carlton and Michelle D. Carlton. Judge: CANTRELL First Paragraph: After the defendant landowners placed gates across a roadway that ran through their land, some adjoining landowners filed suit to have the gates removed. The plaintiffs argued that the roadway was a public road, or in the alternative that they had acquired prescriptive rights to use it. The trial court ruled for the defendants. We affirm. http://www.tba.org/tba_files/TCA/hargrovejw.wpd DEBORAH G. HARVEY v. FELIPA B. COVINGTON, d/b/a CHOICE CORPORATE TRAINING INTERNATIONAL Court:TCA Attorneys: James B. Johnson, Nashville, Tennessee, for the appellant, Felipa B. Covington d/b/a Choice Corporate Training International. John E. Rodgers, Jr., Nashville, Tennessee, for the appellee, Deborah G. Harvey. Judge: FARMER First Paragraph: This appeal arises from a business dispute between the parties. Businesswoman and Investor signed letter of intent to create limited liability company. Business then began operation. Thereafter, several operational disputes arose between the parties, as well as disputes over Businesswoman's use of Business funds. The trial court determined that Businesswoman had defrauded Investor of invested funds and awarded Investor those funds. Investor was also awarded back pay promised by Businesswoman through Business. We find that a partnership agreement existed between the parties and reverse the trial court's judgment. The case is remanded for rescission of the partnership on the basis that it was created under fraudulent circumstances. The trial court's decision to deny attorney's fees requested by Businesswoman is affirmed. http://www.tba.org/tba_files/TCA/harveydeborah.wpd LINDA LOUISE PARNHAM v. WAYNE LEE PARNHAM Court:TCA Attorneys: Fred C. Dance, Nashville, Tennessee, for the appellant, Wayne Lee Parnham. Grayson Smith Cannon, Goodlettsville, Tennessee, for the appellee, Linda Louise Parnham. Judge: KOCH First Paragraph: This appeal involves the continuing obligation of a non-custodial parent to pay child support following a discharge in bankruptcy. The custodial spouse filed a petition in the Circuit Court for Davidson County seeking to enforce the modified child support provision in their marital dissolution agreement. The non-custodial parent responded that his discharge in bankruptcy relieved him of any further obligation to pay this support. Following a hearing, the trial court held that the non-custodial spouse's Chapter 7 bankruptcy did not discharge his child support obligation but denied the custodial spouse's requests for attorney's fees and for a wage assignment. Both parties have appealed. We have determined that the trial court properly concluded that the non-custodial spouse's child support obligation had not been discharged but that the trial court erred by declining to award the custodial spouse her attorney's fees and by refusing to grant her request for a wage assignment. http://www.tba.org/tba_files/TCA/parnhamll.wpd COUNTY OF SAN MATEO, CALIF. v. MURRAY GREEN, SR. Court:TCA Attorneys: David Comer, Lawrenceburg, Tennessee, for the appellant, Murray Green, Sr. Paul G. Summers, Attorney General and Reporter, Stuart Wilson-Patton, Assistant Attorney General, Nashville, Tennessee, for the appellee, County of San Mateo, Calif. Judge: COTTRELL First Paragraph: Appellant appeals the enforcement of a 1983 California judgment for reimbursement for public assistance provided to his children through 1982. Because the judgment expired under the applicable statutes of limitation in both California and Tennessee before this enforcement action was brought, we find that Appellant had a vested right in that defense and reverse the trial court's judgment. http://www.tba.org/tba_files/TCA/sanmateo.wpd SERVPRO INDUSTRIES, INC. v. STEPHEN PIZZILLO Court:TCA Attorneys: Robert Zarco and Robert M. Einhorn, Miami, Florida, and Walter H. Stubbs, Gallatin, Tennessee, for the appellant, Stephen Pizzillo. Lawrence C. Maxwell and W. Edward Ramage, Nashville, Tennessee, for the appellee, Servpro Industries, Inc. Judge: CANTRELL First Paragraph: The trial court granted all of a franchisor's claims against its former franchisee, and dismissed all the franchisee's counterclaims. Among other things, the court found that after the expiration of his franchise, the franchisee had entered into a competing business, in violation of an enforceable non- compete clause in the franchise agreement, and enjoined the franchisee from any further violations. We affirm. http://www.tba.org/tba_files/TCA/servpro.wpd AMY LYNN SURBER v. RALPH LEE CANNON Court:TCA Attorneys: Charles R. Ray, Jeffery S. Frensley, Nashville, Tennessee, for the appellant, Amy Lynn Surber. James L. Weatherly, Jr., Nashville, Tennessee, for the appellee, Ralph Lee Cannon. Judge: COTTRELL First Paragraph: Twice, while walking her dog, the then fourteen year old plaintiff witnessed the defendant, standing naked, masturbating in his garage. The defendant was criminally prosecuted. The plaintiff then commenced the underlying civil action against him, alleging outrageous conduct, intentional nuisance and malicious harassment under Tenn. Code Ann. S 4-21-701. The court directed a verdict on the nuisance and malicious harassment claims, and the jury found for the defendant on the outrageous conduct claim. In her appeal, the plaintiff challenges only the disposition of the malicious harassment claim. Because there was no evidence to establish all the elements of the tort of malicious harassment as set forth in Washington v. Robertson County, Tennessee, 29 S.W.3d 466 (Tenn. 2000), we affirm. http://www.tba.org/tba_files/TCA/surbera.wpd GINGER TURNER VOOYS v. ROBERT PHILLIPS TURNER, JR. Court:TCA Attorneys: David S. Zinn, Brentwood, Tennessee, for the appellant, Robert Phillips Turner, Jr. Phillip E. Smith, Nashville, Tennessee, for the appellee, Ginger Turner Vooys. Judge: COTTRELL First Paragraph: The sole issue presented in this appeal is the propriety of the trial court's award to Wife of postjudgment interest on funds Husband deposited in the office of the clerk of the trial court prior to the appeal of the final order divorcing the parties. The funds represent the purchase price of the marital residence which had been awarded to Wife. Exercising an option to purchase the house, Husband deposited $185,000 with the court clerk and tendered it in open court. Then Husband appealed various portions of the final order, including the award of the house to Wife; he also moved to stay the execution and enforcement of that and other portions of the judgment without paying a bond on the ground that the funds he had already deposited should relieve him of the necessity of posting an additional bond. The motion also requested that the funds be placed in an interest bearing account. The stay of execution was granted, but the motion to deposit at interest was never ruled upon. After the trial court's judgment was affirmed on appeal, Wife filed a motion seeking interest on all money judgments rendered against Husband. The trial court found that Wife was entitled to postjudgment interest on the $185,000. Husband then commenced this appeal. We affirm. http://www.tba.org/tba_files/TCA/vooysg.wpd STATE OF TENNESSEE v. LEE O. ANDERSON Court:TCCA Attorneys: C. Michael Robbins, Memphis, Tennessee, for the appellant, Lee O. Anderson. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Colin A. Campbell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was found guilty by a Fayette County jury of simple possession of a controlled substance, a Class A misdemeanor; delivery of a controlled substance in an amount of .5 grams, to wit cocaine, a Class B felony; and delivery of a controlled substance in an amount less than .5 grams, to wit cocaine, a Class C felony. Tenn Code Ann. S 39-17-417(a) & (c). The defendant was sentenced to concurrent sentences of eleven months and twenty-nine days, thirty years, and fifteen years, respectively, with fines totaling $4250. The defendant now brings this appeal claiming that: 1) the trial court erred by denying his motion in limine that sought to preclude the State from introducing evidence regarding proof of the defendant's sale of a controlled substance as applied to this case, 2) that the trial court erred because it denied the defendant's requests to charge the jury with special instructions regarding the delivery of a controlled substance and simple possession or casual exchange, and 3) the trial court erred by not granting the defendant's motion for a mistrial because the State indicated during opening statements that it would prove that the defendant had sold cocaine, and made repeated references during trial to the offense of sale of cocaine. After a review of the record, we conclude that the issues raised by the defendant in this appeal are without merit. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/andersonlo.wpd STATE OF TENNESSEE v. STACEY PHILANDER BALDON Court:TCCA Attorneys: Rebecca S. Mills, Ripley, Tennessee, for the appellant, Stacey Philander Baldon. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant was convicted by a Lauderdale County jury of possession of 0.5 grams or more of cocaine with intent to deliver, a Class B felony, and possession of drug paraphernalia, a Class A misdemeanor. In addition, defendant entered a guilty plea to felony possession of a firearm, a Class E felony. He was sentenced as a Range II, multiple offender, and received concurrent sentences of twelve years, eleven months and twenty-nine days, and two years respectively. Defendant raises the following issues for our review: (1) whether the trial court erred by denying his motion to suppress evidence seized pursuant to the search warrant; (2) whether the trial court erred by denying his request for a severance of defendants; (3) whether the trial court erred in excluding the prior recorded testimony of his co-defendant; (4) whether the trial court improperly allowed the arresting officer to testify as to his opinion regarding the veracity of co-defendant's admission; (5) whether the jury pool was tainted by statements of a potential juror; and (6) whether the state improperly exercised its peremptory challenges. Upon our review of the record, we find defendant's allegations to be without merit; thus, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/baldonsp.wpd STATE OF TENNESSEE v. CARLOS L. BATEY Court:TCCA Attorneys: James O. Martin, III, Nashville, Tennessee, for the appellant, Carlos L. Batey. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Ana Lucia Escobar, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals a certified question from the trial court's denial of his motion to suppress cocaine seized incident to his warrantless arrest. He contends that the police lacked probable cause to arrest him because the state failed to prove the basis of knowledge and the reliability of the informant who arranged the drug transaction which led to his arrest. We affirm the trial court's denial of the motion to suppress. http://www.tba.org/tba_files/TCCA/bateycl.wpd STATE OF TENNESSEE v. BILLY J. COFFELT Court:TCCA Attorneys: Leslie A. Bruce, Nashville, Tennessee, attorney for the appellant, Billy J. Coffelt. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Counsel for the State; Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner appeals the trial court's denial of his motion for delayed appeal regarding his petition for post-conviction relief. We remand the case to the trial court. http://www.tba.org/tba_files/TCCA/coffeltbj.wpd DAVID A. CROSS v. JAMES M. DUKES, WARDEN Court:TCCA Attorneys: David A. Cross, Henning, Tennessee, Pro Se. Michael E. Moore, Solicitor General; Lucian D. Geise, Assistant Attorney General; and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Petitioner appeals the summary dismissal of his petition for writ of habeas corpus. The trial court determined that petitioner did not receive an illegal sentence, and petitioner now appeals this ruling. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/crossda.wpd JAMES DUBOSE v. STATE OF TENNESSEE Court:TCCA Attorneys: James DuBose, Clifton, Tennessee, pro se, (post-conviction); Eugene Honea, (post-conviction) and Robert Plummer, Franklin, Tennessee (trial and direct appeal), for the appellant, James DuBose. Paul G. Summers, Attorney General and Reporter, Todd R. Kelley, Assistant Attorney General, Joseph Baugh, District Attorney General (trial), Ronald L. Davis, District Attorney General (post- conviction), and Jeffrey Burks, Assistant District Attorney General (post-conviction), for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, James DuBose, was convicted by a jury in the Williamson County Circuit Court of one count of first degree felony murder with the underlying felony being aggravated child abuse. The trial court sentenced the petitioner to life imprisonment in the Tennessee Department of Correction. This court and the Tennessee Supreme Court affirmed the petitioner's conviction. The petitioner subsequently filed a petition for post-conviction relief. After a hearing, the post- conviction court denied the petitioner's request for relief. On appeal, the petitioner raises the following issues for our review: (1) whether the State engaged in prosecutorial misconduct during the course of the petitioner's trial; (2) whether petitioner's trial counsel provided ineffective assistance of counsel; (3) whether the trial court erred in failing to give curative jury instructions; and (4) whether the petitioner was charged pursuant to a faulty indictment. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/dubosej.wpd ISAAC EARL EDGIN v. STATE OF TENNESSEE Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the appellant, Isaac Earl Edgin. Paul G. Summers, Attorney General & Reporter; Clinton J. Morgan, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and B. Dent Morriss, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner appeals from a Montgomery County trial court's order dismissing his petition for post-conviction relief. He argues that he is entitled to a new trial because, among other things, his trial counsel provided him ineffective assistance of counsel. Because the judgment fails to contain findings of fact and conclusions of law, the order dismissing this cause is reversed and the case is remanded to the trial court for a new post-conviction proceeding. http://www.tba.org/tba_files/TCCA/edginIe.wpd STATE OF TENNESSEE v. CORRIE JOHNSON Court:TCCA Attorneys: Chadwick G. Hunt, Savannah, Tennessee, for the appellant, Corrie Johnson. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was convicted by a Hardin County jury of driving under the influence (DUI), possession of marijuana, and possession with the intent to sell or deliver 0.5 grams or more of cocaine. The trial court sentenced the defendant to two 11 month and 29 day sentences for the DUI and possession of marijuana convictions, suspended after serving 30 days in jail. The trial court sentenced the defendant to 9 years incarceration, as a Range I standard offender, for possession with intent to sell or deliver 0.5 grams or more of cocaine. All sentences were to be served concurrently. In this appeal as a matter of right, the defendant alleges the trial court erred by denying (1) his motion to suppress evidence discovered as a result of the vehicle stop and (2) his request for alternative sentencing. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/johnsonc.wpd STATE OF TENNESSEE v. JAMES MCARTHUR Court:TCCA Attorneys: Alicia A. Howard, Memphis, Tennessee, for the appellant, James McArthur. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; William L. Gibbons, District Attorney General; and Camille R. McMullen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant, James McArthur, appeals his two jury convictions for aggravated robbery for which he received concurrent eight-year sentences. He contends on appeal that the evidence was insufficient to support the verdicts, and he was deprived of a fair and impartial jury. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mcarthurj.wpd STATE OF TENNESSEE v. MARCUS MORROW Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter, David H. Findley, Assistant Attorney General, Mike Bottoms, District Attorney General, and Larry Nickell, Assistant District Attorney General for the appellant, the State of Tennessee. Christopher L. Dunn, Columbia, Tennessee, for the appellee, Marcus Morrow. Judge: OGLE First Paragraph: The appellant, the State of Tennessee, appeals the order of the Maury County Circuit Court permitting the appellee, Marcus Morrow, to participate in a work release program during his forty- five-day incarceration for driving under the influence of an intoxicant (DUI), second offense. Following a review of the record and the parties' briefs, we reverse the judgment of the trial court. http://www.tba.org/tba_files/TCCA/morrowma.wpd STATE OF TENNESSEE v. WILLIAM "BUTCH" OSEPCZUK Court:TCCA Attorneys: Hershell D. Koger, Pulaski, Tennessee, for the Appellant, William "Butch" Osepczuk. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Marvin E. Clements, Jr., Assistant Attorney General, T. Michael Bottoms, District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: William Osepczuk was convicted of criminal attempt to commit first degree murder and was sentenced to twenty-five years in the Department of Correction. He now appeals his conviction challenging the sufficiency of the convicting evidence based upon the non credible testimony of the victim and the erroneous admission of non relevant physical evidence. Finding the proof more than sufficient to support his conviction, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/osepczukwbutch.wpd STATE OF TENNESSEE v. CHARLES A. REYNOLDS Court:TCCA Attorneys: Leonard M. Caputo, Chattanooga, Tennessee, Charles G. Jenkins, Sr., and Charles G. Jenkins, Jr., Jasper, Tennessee, for the appellant, Charles A. Reynolds. Paul G. Summers, Attorney General and Reporter, David H. Findley, Assistant Attorney General, J. Michael Taylor, District Attorney General, and Steve Strain, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Charles A. Reynolds, was convicted by a jury in the Marion County Circuit Court of one count of first degree felony murder committed during the perpetration of a kidnapping or robbery and one count of especially aggravated kidnapping. The trial court imposed concurrent sentences of life imprisonment in the Tennessee Department of Correction for the felony murder conviction and fifteen years incarceration in the Department for the especially aggravated kidnapping conviction. On appeal, the appellant raises the following issues for our consideration: (1) whether the trial court erred in denying the appellant's motion for judgments of acquittal at the close of the State's case-in-chief; (2) whether the trial court erred in denying his motion for new trial in which he challenged the sufficiency of all the evidence underlying the jury's verdicts; and (3) whether the trial court erred in admitting evidence of another crime committed by the appellant on the night of the murder. Following a thorough review of the record and the parties' briefs, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/reynoldsca.wpd MIRACK R. SMITH v. STATE OF TENNESSEE WITH CONCURRING OPINION Court:TCCA Attorneys: Robert B. Gaia, Memphis, Tennessee, for the appellant, Mirack R. Smith. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Dawn Doran, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The Petitioner pled guilty to one count of second degree murder and one count of especially aggravated robbery, both Class A felonies. Tenn. Code Ann. S 39-13-202 and - 403. The Petitioner received concurrent sentences of thirty years, as a Range II offender, and fifteen years, as a Range I offender, respectively. The Petitioner filed a petition for post-conviction relief; however, the petition was ultimately dismissed. The Petitioner now appeals the post-conviction court's denial of relief. The Petitioner contends: 1) that trial counsel was ineffective because counsel knew that the Petitioner had a history of mental illness but failed to investigate it, and 2) that he did not voluntarily and knowingly enter into the plea agreement because he did not know that he was to be sentenced to the thirty-year sentence as a Range II offender. Our review of the record has failed to yield any evidence that weighs against the post-conviction court's dismissal of the Petitioner's petition. Accordingly, the post-conviction court's dismissal of the Petitioner's petition is affirmed. http://www.tba.org/tba_files/TCCA/smithmr_opn.wpd http://www.tba.org/tba_files/TCCA/smithmr_con.wpd VERNON WEST v. STATE OF TENNESSEE Court:TCCA Attorneys: Jeffery S. Glatstein, Memphis, Tennessee, for the Appellant, Vernon West. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Kim R. Helper, Assistant Attorney General, William L. Gibbons, District Attorney General, and William D. Bond, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: Vernon West appeals the Shelby County Criminal Court's dismissal of his petition for post- conviction relief. West collaterally attacks his conviction for second degree murder upon the grounds of ineffective assistance of counsel. Specifically, he contends that trial counsel was ineffective for failing to file a motion to sever, for failing to investigate the case and for failing to call two witnesses to testify at trial. After review of the record, we affirm the trial court's denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/westv.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! 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