February 27, 2001 Volume 7 -- Number 036 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 09 New Opinion(s) from the Tennessee Court of Criminal Appeals 01 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 WILLIAM R. CLARK v. WILLAMETTE INDUSTRIES, INC. Court:TSC - Workers Comp Panel Attorneys: Michael E. Large, Bristol Tennessee, for the appellant, William R. Clark. Michael L. Forrester, Kingsport, Tennessee, for the appellee, Willamette Industries, Inc. Judge: INMAN 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 to the Supreme Court of findings of fact and conclusions of law. The dispositive issue is whether the evidence preponderantly proved that the condition of the plaintiff's right knee was causally related to a fall he suffered in March 1997. The expert proof was divergent, and the plaintiff's credibility was remarked by the trial judge. http://www.tba.org/tba_files/TSC_WCP/clarkwr.wpd JOHN R. FISER, et al. v. TOWN OF FARRAGUT, TENNESSEE Court:TCA Attorneys: Keith McCord, Knoxville, Tennessee, for the Appellants, John R. Fiser and Hughlen R. Thornton, Jr. David E. Rodgers and Thomas M. Hale, Knoxville, Tennessee, for the Appellee, Town of Farragut Judge: GODDARD First Paragraph: In this suit the Plaintiffs seek a declaratory judgment that a Zoning Ordinance of the Town of Farragut, which admittedly seeks to eliminate off-premises billboards, is invalid insofar as their property is concerned. The Trial Court found in favor of Farragut. We reverse. http://www.tba.org/tba_files/TCA/fiserjohn.wpd JOHN HAPNEY, et al. v. JAMES WARREN, et al. Court:TCA Attorneys: James R. Hickman, Jr., Sevierville, Tennessee, for the appellants, John and Linda Hapney. Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellees, James and Janice Warren. Judge: GODDARD First Paragraph: In this case the plaintiffs are seeking damages for personal injuries received in a vehicle accident. The plaintiffs were exiting the interstate and were bumped from the rear by the vehicle driven by Mrs. Warren. While other facts relating to the accident were disputed, it was undisputed that there was no physical injury to either of the vehicles or their contents. The police were not called to the scene and no report was made. The plaintiffs filed suit to collect damages for injuries to Mrs. Hapney's neck which she claimed were received in the accident. The jury found no negligence on the part of the defendants. One of the doctors, who saw Mrs. Hapney, testified for the defendants in the case as to causation of Mrs. Hapney's injuries. In their motion for a new trial and on appeal, the plaintiffs contend that the trial court erred in admitting the testimony of the doctor. The trial court denied the motion for a new trial. The plaintiffs appeal challenging the jury verdict and the admission of the doctor's testimony. We affirm the trial court. http://www.tba.org/tba_files/TCA/hapneyjohn.wpd RACHEL KNOWLES, et al. v. STATE OF TENNESSEE Court:TCA Attorneys: Paul G. Summers, Attorney General & Reporter; Laura T. Kidwell, Assistant Attorney General, for the appellant State of Tennessee. Billy J. Stokes, Knoxville, Tennessee, for the appellees Rachel Knowles and William Knowles. R. Christopher Gilreath, Knoxville, Tennessee, for the appellees John Stephen Snapp and Roger Wayne Snapp. Judge: SUSANO First Paragraph: This appeal focuses on two consolidated cases involving claims against the State of Tennessee arising out of an accident involving two automobiles and a piece of grass mowing equipment owned by the State. An employee of the State was mowing the grassy median on Alcoa Highway in Knoxville when his mower was struck by a vehicle driven by John P. Snapp. Snapp's vehicle then crossed the median and struck a vehicle driven by Rachel Knowles. Snapp was killed, and Mrs. Knowles was seriously injured. Snapp's sons, John Stephen Snapp and Roger Wayne Snapp, filed a claim against the State, as did Mrs. Knowles and her husband, William Knowles. The two claims against the State were transferred by a Claims Commissioner to the Blount County Circuit Court for trial pursuant to the provisions of T.C.A. S 9-8-404 (1999). In court, the claims were consolidated with an action filed by the Knowles against the administrator of Snapp's estate. At the conclusion of the trial, the court awarded judgments against the State as follows: $300,000 to Mrs. Knowles, $100,000 to William Knowles, and $300,000 in the Snapp wrongful death case. The State appeals, arguing (1) that the trial court erred in finding the State negligent; (2) that the trial court erred in its allocation of fault; and (3) that the awards are excessive. The plaintiffs assert that the appeal is frivolous. We affirm, but do not find the appeal to be frivolous. http://www.tba.org/tba_files/TCA/knowlesr.wpd RIVER CITY RESORT, INC., v. NORFOLK SOUTHERN RAILWAY COMPANY, f/d/b/a CHATTANOOGA TRACTION COMPANY, CINCINNATI NEW ORLEANS & TEXAS PACIFIC R.Y. COMPANY and JIT TERMINAL, INC. Court:TCA Attorneys: William H. Horton, Chattanooga, Tennessee, for River City Resort, Inc., appellant. Donald J. Aho, Chattanooga, Tennessee, for JIT Terminal, Inc., appellee. William M. Foster, Chattanooga, Tennessee, for Norfolk Southern Railway Company and the Cincinnati, New Orleans and Texas Pacific Railway Company, appellees. Judge: FRANKS First Paragraph: This Declaratory Judgment action was brought to determine the validity of an easement. The Chancellor declared the easement valid. We affirm. http://www.tba.org/tba_files/TCA/rivercity.wpd JOHN W. ROGERS, SR. v. THE ESTATE OF NEWTON LEE RUSSELL, LARRY W. HOLBERT, PERSONAL REPRESENTATIVE Court:TCA Attorneys: James C. Cone, Knoxville, Tennessee, for Appellant, John W. Rogers, Sr. Angelia D. Morie, Maryville, Tennessee, For Appellee, the Estate of Newton Lee Russell. Judge: SWINEY First Paragraph: Plaintiff's claim in Probate Court against the estate of his stepfather was denied by the Probate Court because it was not filed timely. The Probate Court advised Plaintiff, who appeared at the hearing pro se, that he should seek counsel if he wished to challenge the ruling of the Probate Court. Although Plaintiff immediately retained counsel, no further action was taken on the matter for eleven months. With new counsel, Plaintiff then filed a Motion to Set Aside Order Denying Claim pursuant to Tenn. R. Civ. P. Rule 60.02. This Motion was heard on the pleadings, documents in the case file, including the Affidavit of Plaintiff, and arguments of counsel. The Probate Court dismissed the Motion. We affirm the Judgment of the Probate Court. http://www.tba.org/tba_files/TCA/rogersjw.wpd VICKIE J. SHERMAN, vs. AMERICAN WATER HEATER COMPANY, INC. Court:TCA Attorneys: Cherie S. Adams, Kingsport, Tennessee, for Appellant, Vickie J. Sherman. William R. Seale and Mary M. Helms, Morristown, Tennessee, for Appellee, American Water Heater Company, Inc. Judge: FRANKS First Paragraph: The Trial Court held release given by plaintiff barred plaintiff's claim for statutory indemnification. On appeal we reverse. http://www.tba.org/tba_files/TCA/shermanv.wpd ROBERT PAUL WILSON, JR. v. MARTHA RUTH WILSON Court:TCA Attorneys: Michael Hickman, Maryville, Tennessee, for the appellant, Robert Paul Wilson, Jr. David M. Boyd, Maryville, Tennessee, for the appellee, Martha Ruth Wilson. Judge: SUSANO First Paragraph: In this post-divorce case, the trial court (1) denied the father's request to relocate to Georgia with the parties' minor child; (2) imposed sanctions for the father's perjury; and (3) changed the joint custody decreed at the time of the divorce to sole custody in the mother. On this appeal, the father argues (1) that the trial court erred in reversing its initial post-divorce decision pursuant to which the father had been permitted to relocate to Georgia; (2) that the trial court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act to make a custody determination; (3) that the trial court should have declined to exercise jurisdiction on the ground of inconvenient forum; (4) that the trial court erred in basing its change of custody upon the father's admittedly false testimony; (5) that the trial court's reversal of its prior decision to permit the father to relocate is barred by the doctrine of laches; (6) that the trial court erred in finding that father's contemptuous behavior was a proper basis for denying him an award of child support; and (7) that the trial court abused its discretion when it imposed sanctions for criminal contempt without providing the necessary procedural safeguards. We find that the trial court erred in dismissing Father's petition for child support. In all other respects, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/wilsonrp.wpd STATE OF TENNESSEE v. JASON THOMAS BEELER Court:TCCA Attorneys: Charles S. Kelly, Sr., Dyersburg, Tennessee, and L. Lee Harrell, Trenton, Tennessee, for the appellant, Jason Thomas Beeler. Paul G. Summers, Attorney General & Reporter, Mark E. Davidson, Assistant Attorney General, Thomas A. Thomas, District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant appeals from jury trial convictions for reckless homicide, felony murder, aggravated burglary, and two counts of especially aggravated kidnapping. In this appeal, the defendant alleges insufficient evidence, errors in admitting certain evidence, prosecutorial misconduct, improper instructions, and error in denying his writ of error coram nobis. Concluding that it was reversible error to not instruct on the lesser-included offenses of felony murder, we remand for a new trial on the felony murder count. We affirm the remaining convictions. http://www.tba.org/tba_files/TCCA/beelerjt.wpd STATE OF TENNESSEE v. WILLIAM D. BRITT Court:TCCA Attorneys: Julie A. Rice (on appeal) and Andy Kennedy, Assistant Public Defender (at trial), for the appellant, William D. Britt. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant appeals from his Sullivan County Criminal Court sentence for Class C felony theft over $10,000 but less than $60,000. Tenn. Code Ann. SS 39-14-103, -14-105(4) (1997). The trial court sentenced the defendant as a Range I standard offender to three years in the Department of Correction and ordered restitution to the victim of the theft in the amount of $7,000. On direct appeal, the defendant presses his claim that the trial court incorrectly imposed an incarcerative sentence rather than some form of alternative sentencing. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/brittwd.wpd LUTHER ROBERT BROWN, III v. STATE OF TENNESSEE Court:TCCA Attorneys: Mary Katherine Harvey, for the Appellant, Luther Robert Brown, III. Paul G. Summers, Attorney General & Reporter; Clinton J. Morgan, Counsel for the State; H. Greeley Wells, District Attorney General; Terry L. Jordan, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner, Luther Robert Brown, III, appeals from the Sullivan County Criminal Court's summary dismissal of his petition for the writ of habeas corpus. Brown seeks relief from a "parole hold" that Tennessee officials have caused to be placed upon him within the Virginia prison system. According to the allegations of his petition, the parole hold has resulted in the Virginia prison system denying him inmate privileges to which he would otherwise be entitled. Additionally, he complains that he has not been granted a Tennessee parole hearing even though he has served his Tennessee sentence past the release eligibility date. Because we agree with the lower court that these complaints are not cognizable in a habeas corpus proceeding, we affirm the lower court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/brownlr.wpd STATE OF TENNESSEE v. JEFFREY COFFEY Court:TCCA Attorneys: Gary M. Howell, Columbia, Tennessee, for the appellant, Jeffrey Coffey. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; T. Michael Bottoms, District Attorney General; and Lawrence R. Nickell, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted by a Maury County jury of aggravated child abuse of a child six years of age or less, a Class A felony, and was sentenced to twenty-five years in confinement, the maximum sentence for a Range I, standard offender. In this appeal as of right, the defendant presents two issues for our review: (1) whether the evidence was sufficient to support the conviction; and (2) whether the sentence was excessive. We conclude that the convicting evidence was sufficient. We further conclude that, although the trial court erred in applying enhancement factors (5) and (6), two other statutory enhancement factors were appropriately applied. Additionally, we conclude that, although the trial court erred in not applying mitigating factors (6) and (13), the defendant was appropriately sentenced. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/coffeyj.wpd STATE OF TENNESSEE v. SEAN IMFELD Court:TCCA Attorneys: Mark E. Stephens, Knox County Public Defender; Robert C. Edwards, Assistant Public Defender; and Paula R. Voss, Assistant Public Defender, for the appellant, Sean Imfeld. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Patricia Cristil, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Sean Imfeld, pled guilty to one count of driving under the influence and five counts of aggravated assault by recklessness, a Class D felony. See Tenn. Code Ann. S 39-13-102(d). The trial court originally imposed an effective sentence of 12 years but later, following a motion to modify the sentence, reduced the term to nine years. In this appeal of right, the defendant presents the following issues for review, all of which relate to sentencing: (1) whether the trial court misapplied statutory enhancement factors; (2) whether the trial court erred by imposing consecutive sentences; and (3) whether the sentence imposed violated the purposes and intent of the Sentencing Reform Act of 1989. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/imfeldsean_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/imfeldsean_con.wpd STATE OF TENNESSEE v. CHRISTOPHER JOSEPH JOHNSON Court:TCCA Attorneys: Christopher Joseph Johnson, Pro Se. Paul G. Summers, Attorney General & Reporter; R. Stephen Jobe, Assistant Attorney General; Randall E. Nichols, District Attorney General, for the Appellee, State of Tennessee. Judge: First Paragraph: The defendant appeals the trial court's dismissal of his motions seeking relief from the collection of litigation taxes and trial court costs. Because we have no jurisdiction to entertain a Rule 3 appeal, we dismiss the appeal. http://www.tba.org/tba_files/TCCA/johnsoncj.wpd STATE OF TENNESSEE v. ROBERT LEE MALLARD Court:TCCA Attorneys: Jim Wiseman, Murfreesboro, Tennessee (on appeal) and Gerald L. Melton, District Public Defender; and Brion J. Payne, Assistant Public Defender, Murfreesboro, Tennessee (at trial) for the appellant, Robert Lee Mallard. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; Paul A. Holcombe, III, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: In a two count indictment, Defendant was charged in Rutherford County Circuit Court with attempting to tamper with or fabricate evidence, and with resisting arrest. Following a jury trial, he was convicted of both offenses. In this appeal, the Defendant argues that the trial court erred by denying his motion to suppress evidence and he further asserts that the evidence is insufficient to sustain the conviction for attempting to tamper with or fabricate evidence. After a review of the record and the applicable law, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/mallardrl.wpd HENRY J. WHITE, JR. v. HOWARD CARLTON, WARDEN Court:TCCA Attorneys: Henry J. White, Jr., Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; and R. Stephen Jobe, Assistant Attorney General, for the appellees, Howard Carlton, Warden, and State of Tennessee. Judge: TIPTON First Paragraph: The petitioner challenges the trial court's denial of his habeas corpus petition for failure to state a cognizable claim for relief. We affirm the denial of the petition. http://www.tba.org/tba_files/TCCA/whitehj.wpd JOSEPH WHITWELL v. STATE OF TENNESSEE Court:TCCA Attorneys: Larry B. Felts, Nashville, Tennessee, for the appellant, Joseph Whitwell. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Roger Moore, Assistant District Attorney General; and Sarah Carran Daughtrey, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Joseph Whitwell, filed a Petition for Post-Conviction Relief in the Davidson County Criminal Court, which the post-conviction court subsequently denied. Petitioner challenges the denial of his petition, raising the following issue: whether the trial court erred in dismissing his Petition for Post-Conviction Relief, based upon a ruling that Petitioner's allegations of ineffective assistance of counsel were without merit. After a thorough review of the record, we find that the Petitioner did not receive the ineffective assistance of counsel. We therefore affirm the trial court's denial of the Petitioner's Petition for Post-Conviction Relief. http://www.tba.org/tba_files/TCCA/whitwellj.wpd Jurisdiction of General Sessions Criminal Court Over Drug Court Hearings Date: February 22, 2001 Opinion Number: 01-025 http://www.tba.org/tba_files/AG/OP25.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. 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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