March 22, 2001 Volume 7 -- Number 053 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):   04 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 06 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 ROBERT ALLEN FAHEY v. FABIEN ELDRIDGE & ELDRIDGE AUTO SALES, INC. Court:TSC Attorneys: Chantal M. Eldridge, Cookville, Tennessee, and Rick Halprin, Chicago, Illinois, for the appellant, Fabien Eldridge. Samuel J. Harris, Cookville, Tennessee, for the appellant, Eldridge Auto Sales, Inc. William E. Farmer, Lebanon, Tennessee, for the appellee, Robert Allen Fahey. Judge: First Paragraph: The primary issue presented in this case is whether the Court of Appeals erred in finding that the defendants waived all issues on appeal by failing to specifically state these issues in their motions for a new trial as required by Tennessee Rule of Appellate Procedure 3(e). The defendants were found liable by a jury for the assault and battery of the plaintiff, and they were ordered to pay compensatory and punitive damages in the amount of $1.75 million. The defendants filed motions for a new trial, which were denied by the trial court, in part, because the alleged errors were not specifically enumerated. On appeal, the Court of Appeals found that the alleged errors were not stated with sufficient specificity in the motions so as to preserve them for appeal, and it dismissed all issues before it. The defendants then requested permission to appeal to this Court. We hold that the defendants' motions for a new trial did set forth several issues for review in compliance with Rule 3(e), and we remand this case to the Court of Appeals for a determination of these issues on their merits. http://www.tba.org/tba_files/TSC/faheyra.wpd STATE OF TENNESSEE v. ROBERT L. MALLARD Court:TSC Attorneys: Gerald L. Melton, District Public Defender; Brion J. Payne, Assistant Public Defender, for the appellant, Robert L. Mallard. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: In this appeal, we address whether Tennessee Code Annotated section 39-17-424 (1997) requires admission into evidence of a defendant's prior convictions relating to controlled substances, even when Tennessee Rule of Evidence 404(b) would otherwise render such evidence inadmissible. During the appellant's trial in the Rutherford County Circuit Court for possession of drug paraphernalia, the State admitted evidence of the appellant's prior convictions for posse0/00@)?0/00J-ocaine and dYePeparaphernalia under section 39-17-424 to show that the object possessed was classifiable as drug paraphernalia. Upon his conviction, the appellant appealed to the Court of Criminal Appeals, which affirmed his conviction and held that the statute required admission of the prior convictions notwithstanding any otherwise applicable rule of evidence. We granted the appellant's application for permission to appeal, and we hold that the legislature did not intend for section 39-17-424 to operate without regard to the Rules of Evidence. We also hold that the evidence of the appellant's prior convictions was improperly admitted under Rule 404(b), and that this error affirmatively appears to have affected the outcome of the trial on its merits. We therefore reverse the Court of Criminal Appeals and remand this case to the Rutherford County Circuit Court for a new trial. http://www.tba.org/tba_files/TSC/mallardrl.wpd STATE OF TENNESSEE v. SCOTT HOUSTON NIX Court:TSC Attorneys: Mark A. Brown, Knoxville, Tennessee, for the appellants, Scott Houston Nix and Ralph Dean Purkey. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Jennifer L. Smith, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: DROWOTA First Paragraph: We granted permission to appeal to consider an issue of first impression: what is the standard of mental incompetence that a petitioner must satisfy before due process requires tolling of the post- conviction statute of limitations. We agree with the Court of Criminal Appeals that due process requires tolling of the statute of limitations only if a petitioner is unable either to manage his or her own personal affairs or to understand his or her legal rights and liabilities. We also agree with the intermediate appellate court that, taken as true, the allegations of these petitions are insufficient to make a prima facie showing of incompetency. Accordingly, we affirm the judgments of the Court of Criminal Appeals which upheld the trial court judgments that dismissed these petitions as time-barred by the statute of limitations. http://www.tba.org/tba_files/TSC/nixpurkeyopn.wpd STATE OF TENNESSEE v. GERALD H. SHAFFER Court:TSC Attorneys: Mark E. Stephens, District Public Defender, and Paula R. Voss, Assistant Public Defender, Knoxville, Tennessee, for the appellant, Gerald H. Shaffer. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Todd R. Kelley, Assistant Attorney General, Randall E. Nichols, District Attorney General, and Marsha Selecman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: The Criminal Court for Knox County found that Gerald H. Shaffer had violated the terms of his probation and, on this finding, revoked it. Shaffer appealed and contended that the trial court did not have the authority to revoke probation and that the trial court abused its discretion by basing revocation on new grounds alleged in an amendment to the revocation warrant. The Court of Criminal Appeals affirmed and held that the trial court had the authority to revoke probation and did not abuse its discretion. Because we conclude that the trial court had the authority to revoke Shaffer's probation and did not abuse its discretion in basing the probation revocation on additional grounds alleged in the amendment, we affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/shafferg.wpd SABRINA BURTON, et al. v. CARROLL COUNTY, TENNESSEE, et al. Court:TCA Attorneys: Robert T. Keeton, Jr. and Robert T. Keeton, III, of Huntingdon for Appellants, Carroll County, Tennessee and Yuma Volunteer Fire Department Ricky L. Wood of Parsons and Michael A. Jaynes of Jackson for Appellees, Sabrina and Michael Burton Judge: CRAWFORD First Paragraph: Plaintiffs, husband and wife, sued county and county's volunteer fire department pursuant to Tennessee Governmental Tort Liability Act seeking damages for wife's personal injuries and husband's loss of consortium sustained while they were patronizing a "haunted house" operated by the volunteer fire department to raise funds. Plaintiffs allege that the defendants were negligent in (1) creating a dangerous and defective condition and failing to correct that condition; (2) failing to warn the public of the dangers and defective condition; and (3) failing to maintain the premises in a reasonably safe condition. The trial court, sitting without a jury, entered judgment for the plaintiffs. Defendants have appealed. The trial court's judgment is affirmed. http://www.tba.org/tba_files/TCA/burtonsab.wpd CARROLL COUNTY SOLID WASTE AUTHORITY v. ODILLION COLLINS Court:TCA Attorneys: Odillion Collins, pro se Robert T. Keeton, Jr., for Appellee Judge: HIGHERS First Paragraph: This case involves a dispute over issues surrounding Carroll County's imposition of a garbage collection fee on its residents. The trial court granted summary judgment to Plaintiff, and the Defendant appeals. http://www.tba.org/tba_files/TCA/carrollcountysolid.wpd AUDREY MOSS v. SHEILA K. SANKEY, et al. Court:TCA Attorneys: James V. Ball, Memphis, Tennessee, for the appellant, Audrey Moss. Alex C. Elder, Memphis, Tennessee, for the appellees, Mark A. Tyler and Dick Diggons Body Works, Inc. Judge: FARMER First Paragraph: This appeal arises from a negligence action arising out of a vehicular accident. Driver was turning onto a main road from a side street without the right-of-way. As she emerged from the side street, she was struck by Worker, an employee of Company, whose wrecker had been driving on the road. The collision diverted the wrecker into the oncoming lanes of traffic, where it struck a car driven by Plaintiff. Plaintiff brought suit against Driver, Worker and Company for her injuries. A jury found Driver 100% liable for the injuries. Plaintiff appealed stating that the verdict was against the preponderance of the evidence, that the judge had incorrectly denied a motion for a new trial, and that a sleeping juror had violated Plaintiff's right to a trial by jury. We affirm. http://www.tba.org/tba_files/TCA/mossaudrey.wpd JUDY DIANE PENNINGTON v. FRANK RAY PENNINGTON Court:TCA Attorneys: Carthel L. Smith, Jr., for Appellant James F. Butler, Lisa A. Houston, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a divorce proceeding. The Chancery Court of Madison County granted the Appellee a divorce on the grounds of inappropriate marital conduct and adultery. The trial court calculated child support based on the Appellant's average income prior to his first incarceration. In lieu of child support payments, the trial court awarded the Appellee an office building titled solely in her name. The trial court also awarded the Appellee $5,000.00 as alimony in solido to help defray her attorney's fees and expenses but declined to award periodic or rehabilitative alimony due to the trial court's division of marital property. The Appellant appeals the trial court's calculation of child support as well as the award of the office building to the Appellee in lieu of child support and alimony. For the reasons stated herein, we reverse and remand in part, and we remand in part for further findings of fact. http://www.tba.org/tba_files/TCA/penningtonjudy.wpd IN THE MATTER OF: CHRISTOPHER CODY RAINEY JAMES CHRISTOPHER RAINEY v. LESLIE HEAD Court:TCA Attorneys: Cynthia A. Wilson, for Appellant John D. Horne, for Appellee Judge: HIGHERS First Paragraph: This is a case involving termination of parental rights. The Appellant executed a consent order terminating his parental rights to his child. Asserting that he executed the order under influence and duress by the Appellee and her family, the Appellant then filed a Petition to Vacate Order Terminating Parental Rights. The Juvenile Court of Shelby County dismissed the Appellant's Petition. The Appellant appeals from the dismissal of the Petition to Vacate Order Terminating Parental Rights. For the reasons stated herein, we affirm the trial court's decision. http://www.tba.org/tba_files/TCA/raineychristopher.wpd IN THE MATTER OF OLIVER RAY VALENTINE, JR., D.O.B.: 3/23/94, A CHILD UNDER THE AGE OF 18 YEARS Court:TCA Attorneys: Debra N. Brittenum, Webb A. Brewer, and Nancy P. Kessler, Memphis, for the appellants, Chanya Wallace Valentine and Oliver Ray Valentine, Sr. Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney General, Nashville, for the appellee, Tennessee Department of Children's Services Judge: KIRBY LILLARD First Paragraph: This is a termination of parental rights case. A twenty-one month old boy was removed from his parents' home after the mother beat him with a belt, leaving bruises on his back, chest, head, and face. Three and a half years later, after the parents had failed to satisfy the conditions in the son's plan of care, the Department of Children's Services filed a petition to terminate their parental rights. The Juvenile Court for Shelby County terminated the mother's and father's parental rights. The mother and father appeal, arguing that the Tennessee Constitution prohibits a non-attorney, elected juvenile court judge from appointing a special judge, who is an attorney but not elected, to hear a termination of parental rights case. They also argue that there is not clear and convincing evidence to support the termination of their parental rights. We affirm, finding that the Tennessee Constitution does not prevent an elected, non-attorney juvenile court judge from appointing a juvenile court referee, who is an attorney but not elected, to hear cases involving the termination of parental rights, and that there is clear and convincing evidence to support the termination of parental rights in this case. http://www.tba.org/tba_files/TCA/valentineor.wpd STATE OF TENNESSEE v. WILLIAM P. BROOKS Court:TCCA Attorneys: Julie A. Rice, Contract Appellate Defender, Knoxville, Tennessee, and Mack Garner, District Public Defender, Maryville, Tennessee, for the appellant, William P. Brooks. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; and John Bobo, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, William P. Brooks, was convicted of driving on a revoked license, third offense, a Class A misdemeanor. The trial court imposed a sentence of 11 months and 29 days, requiring 90 days to be served in jail and the balance to be served on supervised probation. In this appeal of right, the defendant argues that the trial court erred by refusing to suppress evidence and by imposing an excessive sentence. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/brookswp.wpd MICHAEL WAYNE DEAN v. STATE OF TENNESSEE Court:TCCA Attorneys: Michael Wayne Dean, Pikeville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Counsel for the State; and James Michael Taylor, District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner challenges the trial court's dismissal of his petition for habeas corpus relief. He contends that the trial court lacked jurisdiction to enter a judgment for second degree murder because that offense is not a lesser included offense of felony murder with which he was indicted. We affirm the trial court's dismissal of the habeas corpus petition. http://www.tba.org/tba_files/TCCA/deanmw.wpd STATE OF TENNESSEE v. TRACY L. FRY. Court:TCCA Attorneys: Michael D. Kellum, Johnson City, Tennessee, for the appellant, Tracy L. Fry. Paul G. Summers, Attorney General & Reporter; Clinton J. Morgan, Assistant Attorney General, Nashville, Tennessee; Joe Crumley, District Attorney General and Victor Vaughn, Assistant District Attorney, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: Tracy Fry, the Defendant and Appellant, pled guilty to driving under the influence, second offense. With the State's and trial court's agreement, however, she specifically reserved the right to appeal a dispositive question of law pursuant to Tenn. R. Crim. P. 37(b)(2)(1). The issue reserved for review is whether Officer Kyte "had reasonable suspicion based on specific and articulable facts, to approach and subsequently seize the defendant leading to the arrest of the defendant." We conclude that the initial encounter between Officer Kyte and the Defendant was not a seizure, that the encounter provided reasonable suspicion sufficient to justify an investigatory detention of the Defendant, and that sufficient probable cause to arrest the Defendant developed during the course of the brief investigatory detention. Thus, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/frytracy.wpd STATE OF TENNESSEE v. SONYA MICHELLE GOSNELL and BRONZO GOSNELL, JR. Court:TCCA Attorneys: Greg W. Eichelman, District Public Defender; Michael A. Walcher, Assistant District Public Defender, Greeneville, Tennessee, for the appellant, Sonya Michelle Gosnell. William Louis Ricker, Greeneville, Tennessee, for the appellant, Bronzo Gosnell, Jr. Paul G. Summers, Attorney General and Reporter; Russell S. Baldwin, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Cecil C. Mills, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A jury convicted both defendants of second degree murder. Bronzo Gosnell and Sonya Gosnell were sentenced to 25 years and 20 years, respectively. In this appeal as a matter of right, both defendants challenge the introduction of recorded conversations made while detained in a police cruiser. Sonya Gosnell further challenges the introduction of certain pretrial statements, the administration of a polygraph examination, the denial of her motion for severance, and the denial of expert assistance. Bronzo Gosnell further challenges the trial court's limitation of his cross-examination of a witness and his maximum sentence of 25 years. Our review of the issues presented by the defendants reflects no reversible error. Accordingly, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/gosnellsm.wpd STATE OF TENNESSEE v. JAMES E. HARMAN, JR. Court:TCCA Attorneys: Terry L. Jordan, Blountville, Tennessee, for the appellant, James E. Harman, Jr. Paul G. Summers, Attorney General & Reporter; Peter M. Coughlin, Assistant District Attorney; Mike Flynn, District Attorney General and Jim Goodwin, District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: In October of 1999, the defendant pled guilty to one count of theft over one-thousand dollars ($1,000.00) and one count of possession of less than .5 ounces of marijuana. His plea form indicated that he agreed to receive concurrent sentences of five and one-half years as a Range II, multiple offender for the former offense and eleven months and twenty-nine days for the latter. Subsequently, the trial court conducted a hearing to determine the manner in which these sentences were to be served. At the conclusion of such hearing, the trial court denied the defendant any form of alternative sentencing, and it is this denial that the defendant contests through his appeal. However, after having reviewed the record and applicable authorities, we find this contention to be without merit and, therefore, affirm the trial court's sentence. http://www.tba.org/tba_files/TCCA/harmanjames.wpd STATE OF TENNESSEE v. JAMES PERRY HYDE Court:TCCA Attorneys: William H. Bell, Greeneville, Tennessee, for the appellant, James Perry Hyde. Paul G. Summers, Attorney General & Reporter; R. Stephen Jobe, Assistant Attorney General; and Eric Christiansen, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, James Perry Hyde, appeals the trial court's denial of post-conviction relief. The issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/hydejp.wpd STATE OF TENNESSEE v. GARY RUSSELL Court:TCCA Attorneys: Michael W. Ritter, Oak Ridge, Tennessee, for the appellant, Gary Russell. Paul G. Summers, Attorney General and Reporter, Glen C. Watson, Assistant Attorney General, and Jan Hicks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: McGEE OGLE First Paragraph: The petitioner, James Perry Hyde, appeals the trial court's denial of post-conviction relief. The issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/russellg.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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