April 12, 2001 Volume 7— Number 068 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 09 New Opinion(s) from the Tennessee Court of Appeals 11 New Opinion(s) from the Tennessee Court of Criminal Appeals 06 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 DOUGLAS WILLIAMS v. WALDEN SECURITY Court:TSC - Workers Comp Panel Attorneys: Robert L. Farnette and Kristin Fecteau, Allen, Kopet & Boyd, Nashville, Tennessee, for the appellant, Walden Security. Blakely D. Matthews, Cornelius & Collins, Nashville, Tennessee, for the appellee, Douglas Williams. 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, Walden Security, insists (1) the injured employee was not a covered employee at the time of his accidental injury, (2) the award of permanent partial disability benefits is excessive, (3) the trial court erred in assessing statutory penalties, and (4) the trial court erred in commuting the award of permanent disability benefits to a lump sum. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/williamsdouglasopn.wpd C.D. BOYD v. TENNESSEE BOARD OF PAROLES, et al. Court:TCA Attorneys: C.D. Boyd, Pikeville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and Rebecca E. Miller, Nashville, Tennessee, for the appellee, Tennessee Board of Paroles. Judge: KOCH First Paragraph: This appeal involves an prisoner's efforts to be paroled from a 35-year sentence for second degree murder. After the Tennessee Board of Paroles declined to parole the prisoner for the sixth time, the prisoner filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County seeking judicial review of the Board's latest decision. The trial court dismissed the petition, and the prisoner has appealed. We affirm the dismissal of the prisoner's petition. http://www.tba.org/tba_files/TCA/boydcd.wpd GLORIA GUINN v. LUCIOUS GUINN Court:TCA Attorneys: Gerald S. Green, Memphis, For Appellant, Lucious Guinn James V. Ball, Memphis, For Appellee, Gloria Guinn Judge: CRAWFORD First Paragraph: This is a post-divorce proceeding pursuant to Tenn.R.Civ.P. 60. Defendant-husband filed a motion to set aside a final decree of divorce granted on the grounds of irreconcilable differences, because there was no written agreement settling property rights. Plaintiff-wife filed a motion pursuant to Rule 60 to amend the final decree of divorce to show that the ground for divorce is inappropriate marital conduct. The trial court denied Husband's motion, granted Wife's motion and entered an amended final decree showing the ground for divorce as inappropriate marital conduct. Husband appeals. We affirm in part and reverse in part. http://www.tba.org/tba_files/TCA/guinnglo.wpd MICHAEL HOLMES v. JENNIFER L. WILSON, et al. Court:TCA Attorneys: Larry L. Roberts, Nashville, Tennessee, for the appellant, Michael Holmes. Lora A. Barkenbus, Nashville, Tennessee, for the appellee, Jennifer L. Wilson, et al. Judge: COTTRELL First Paragraph: This is an appeal from an order granting summary judgment to Jennifer Wilson and Car City, Inc. The case arises from an automobile collision between a vehicle driven by Mr. Holmes and a vehicle driven by Ms. Wilson while in the course and scope of her employment with Car City. The vehicle Ms. Wilson was driving had been purchased by Car City from Cumberland City Dodge on the day of the accident. The accident was caused by a mechanical failure, causing Ms. Wilson to lose control. The trial court found that the defendants had made a reasonable inspection of the vehicle prior to the accident and granted summary judgment. Mr. Holmes appeals the standard of care applied by the trial court and the sufficiency of the evidence that a reasonable inspection was performed. Because the defendants owed only the duty to make a reasonable inspection of the vehicle, and the undisputed evidence establishes that a reasonable inspection was made, we affirm. http://www.tba.org/tba_files/TCA/holmesm.wpd BETTY J. NASH v. G. L. WAYNICK Court:TCA Attorneys: G. L. Waynick, Mt. Juliet, Tennessee, Pro Se. J. Hilton Conger, Smithville, Tennessee, for the appellee, Betty J. Nash. Judge: KOCH First Paragraph: This appeal involves a dispute over the sale of a single family home in DeKalb County. The purchaser filed suit in the Circuit Court for DeKalb County alleging that the seller had violated the Tennessee Consumer Protection Act and the Tennessee Residential Property Disclosures Act. More than two years after the first two summonses were returned unserved, the purchaser caused a third summons to be issued that was served on the seller. The trial court entered a $27,000 default judgment against the seller on June 21, 2000, after concluding that the seller had been properly served and had presented no defenses to the purchaser's claims. On this appeal, the seller, who has been representing himself throughout these proceedings, asserts that he did not violate either the Tennessee Consumer Protection Act or the Tennessee Residential Property Disclosure Act and that the trial court erred by not considering his statute of limitations defense. We have determined that the purchaser's suit is time-barred for failure to comply with Tenn. R. Civ. P. 3. Therefore, we reverse the judgment and remand the case with directions that the purchaser's complaint be dismissed. http://www.tba.org/tba_files/TCA/nashbj.wpd CHERYL OLIVER AND EDWIN OLIVER v. EARL HARDEN QUINBY, et al. Court:TCA Attorneys: Randall J. Fishman, Memphis, for Appellants Melanie M. Stewart, Memphis, for Appellees Judge: HIGHERS First Paragraph: This case arises out of an automobile accident caused by a pile of carpet lying in the roadway. Plaintiffs allege that the accident was caused by an unknown motorist. Plaintiffs' insurance carrier filed a motion for summary judgment, and the trial court granted the motion. For the following reasons, we affirm the trial court's entry of summary judgment. http://www.tba.org/tba_files/TCA/olivercheryl.wpd NICOLE LEI ROWE v. FRED C. ROWE Court:TCA Attorneys: D. Scott Parsley, Nashville, For Appellant, Nicole Lei Rowe Dicken E. Kidwell, Murfreesboro, For Appellee, Fred Rowe, Jr. Judge: CRAWFORD First Paragraph: In this divorce case, Wife appeals the final decree as to the trial court's determination that there was a $21,000.00 debt due Husband's parents and accordingly charged Wife with one-half of the debt in the division of marital property. We affirm. http://www.tba.org/tba_files/TCA/rowenic.wpd STATE ex rel. DOUGLAS M. SIZEMORE v. UNITED PHYSICIANS INSURANCE RISK RETENTION GROUP Court:TCA Attorneys: Renard A. Hirsch, Sr., Nashville, Tennessee, for the appellant, David S. Weed, Receiver for United Physicians Insurance Risk Retention Group. Kenneth M. Bryant and William E. Long, Jr., Nashville, Tennessee, for the appellee, Naresh B. Dave. Judge: KOCH First Paragraph: This appeal involves a dispute between a physician and the receiver of his professional malpractice insurance carrier over the timeliness of the filing of a proof of claim form involving a reported but unresolved malpractice claim. After the receiver found the claim to be untimely, the physician filed an objection in the liquidation proceeding pending in the Chancery Court for Davidson County. The trial court upheld the receiver's rejection of the claim on the ground that it did not have authority to extend the receiver's filing deadline. We reversed. After concluding that the trial court had the authority to excuse the late filing of claims on the ground of excusable neglect, we remanded the case with directions to consider whether the late filing of the claim should be excused. On remand, the trial court excused the late filing and held that the claim should be considered timely. The receiver has appealed. We have determined that the physician is an "unexcused late filer" for the purpose of Tenn. Code Ann. S 56-9-326(b) (2000) because he has not made out a case for excusable neglect under Tenn. R. Civ. P. 6.02. http://www.tba.org/tba_files/TCA/sizemoredm.wpd VICKI RENA TREBING v. FLEMING COMPANIES, INC. Court:TCA Attorneys: David S. Gardner, Nashville, Tennessee, for the appellant, Vicki Rena Trebing. Alan M. Sowell, Nashville, Tennessee, for the appellee, Fleming Companies, Inc. Judge: CAIN First Paragraph: This appeal concerns the grant of summary judgment to Defendant in a slip and fall case where the trial judge found that no proof was presented of direct or constructive notice of the dangerous condition causing the fall. Appellant raises as issues on appeal the correctness of the summary judgment grant as well as the propriety of the trial court's order striking certain of the opinions of Plaintiff's expert. http://www.tba.org/tba_files/TCA/trebingvickir.wpd MYRON ZIMMERMAN, et al. v. CITY OF MEMPHIS, et al. Court:TCA Attorneys: John McQuiston, II, David Scruggs, Andrew Raines, for Appellants Robert L. J. Spence, Jr., for Appellees Judge: HIGHERS First Paragraph: This appeal involves the determination of whether the City of Memphis properly levied a special assessment upon the property owners within the Central Business Improvement District in downtown Memphis. The affected property owners allege that the levy in question was not a special assessment. They allege that the levy was a tax in violation of section 7-84-501 et seq. of the Tennessee Code as well as Article 2, Section 29 of the Tennessee Constitution. For the following reasons, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/zimmermanmyron.wpd STATE OF TENNESSEE v. AMMON B. ANDERSON Court:TCCA Attorneys: John B. Nisbet, III, Cookeville, Tennessee; William B. Lockert, III, District Public Defender; and Steve Stack, Assistant District Public Defender, for the appellant, Ammon B. Anderson. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and Robert S. Wilson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was indicted for aggravated sexual battery for engaging in sexual contact with a ten- year-old girl with Down's Syndrome. He filed a motion to dismiss the indictment, based on the loss of the tape recording of his interview with a Department of Children's Services caseworker and a police officer, and a motion to suppress his one paragraph statement of admission, consisting of the officer's summary of the interview. Following the trial court's denial of the motions, the defendant entered a plea of nolo contendere to attempt to commit aggravated sexual battery, reserving as a certified question of law, pursuant to Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure, whether the trial court erred in denying his motion to dismiss based on the loss of the tape recording of the interview. Arguing that the statement of admission is subject to misinterpretation when taken out of the context of the entire interview, the defendant contends that his right to a fair trial was compromised by the loss or destruction of the tape recording. After a thorough review of the record and of applicable law, we conclude that the loss of the tape recording did not unfairly prejudice the defendant's case. Accordingly, we affirm the defendant's conviction of attempt to commit aggravated sexual battery. http://www.tba.org/tba_files/TCCA/andersonab.wpd JOHN BATES v. STATE OF TENNESSEE Court:TCCA Attorneys: John Bates, Only, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and Clinton J. Morgan, Counsel for the State, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner appeals pro se the summary denial of his third petition for post-conviction relief arising out of his 1982 conviction for first degree murder. He asserts that his trial counsel and previous post-conviction counsel rendered ineffective assistance of counsel in that they did not raise the issue of the trial court's failure to instruct the jury as to the defense of alibi. We conclude this petition is barred by the applicable statute of limitations. Therefore, we affirm the post-conviction court's summary dismissal of this petition. http://www.tba.org/tba_files/TCCA/batesj.wpd STATE OF TENNESSEE v. JEFFREY E. COPELAND Court:TCCA Attorneys: Jim W. Horner, District Public Defender; John W. Derington, Assistant Public Defender (at trial and on appeal), and Clifford K. McGown, Jr., Waverly, Tennessee (on appeal), for the appellant, Jeffrey E. Copeland. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals from his conviction for vehicular homicide, contesting the sufficiency of the evidence and the denial of his motion to suppress the result of his blood alcohol test. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/copelandje.wpd STATE OF TENNESSEE v. CARL PRESTON DURHAM Court:TCCA Attorneys: A. Christian Lanier, III (on appeal), and Edward T. Landis (at trial), Chattanooga, Tennessee, for the appellant, Carl Preston Durham. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; William Cox, District Attorney General; and Thomas J. Evans, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Carl Preston Durham, was indicted for two counts of first degree murder (premeditated and felony), aggravated robbery, and conspiracy to commit aggravated robbery in connection with the murder of the victim, Rene Earl Cabirac, Sr. After a nine-day trial, verdicts of guilt were rendered on all four charges. At the conclusion of the guilt phase of the trial, the trial court merged the defendant's two first degree murder convictions and the jury sentenced the defendant to life imprisonment without the possibility of parole. The trial court found the defendant to be a career offender and imposed a concurrent sentence of 30 years for the aggravated robbery and a consecutive sentence of 15 years for the conspiracy. The effective sentence is, therefore, life without the possibility of parole plus fifteen years. Because there was no prejudicial error, the convictions and sentences are affirmed; however, because the trial court failed to indicate on the judgment form a merger of the felony murder and the premeditated murder, the judgment is modified to reflect a single conviction for first degree murder. http://www.tba.org/tba_files/TCCA/durhamcp.wpd STATE OF TENNESSEE v. PRESTON FISHER Court:TCCA Attorneys: Vanessa D. King, Assistant Public Defender, Jackson, Tennessee, for the appellant, Preston Fisher. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; and Shaun A. Brown, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Preston Fisher, was convicted of theft of property over $10,000.00. The trial court imposed a Range I, five-year sentence and required service of 120 days in jail, after which the defendant was to be placed upon intensive probation. Following a probation violation by his use of marijuana, the defendant was placed in a Community Corrections program which required one year of drug and alcohol treatment at the Synergy Foundation followed by four years of supervision. After the defendant failed to pursue treatment at Synergy, the trial court ordered that he serve his sentence in the Department of Correction. In this appeal of right, the defendant contends that the trial court erred by the revocation of the Community Corrections sentence. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/fisherpreston.wpd STATE OF TENNESSEE v. CHRISTOPHER STEVEN NUNLEY Court:TCCA Attorneys: Terry J. Canady, Madison, Tennessee (on appeal), and Frank E. Mondelli, Nashville, Tennessee (at trial), for the appellant, Christopher Steven Nunley. Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General; and Derrick Scretchen and Thomas Williams, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Christopher Steven Nunley, was convicted of contributing to the delinquency of a minor, a Class A misdemeanor. The trial court imposed a Range I sentence of 11 months and 29 days at 75%. In this appeal of right, the defendant challenges the sufficiency of the evidence. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/nunleychris.wpd ARCHIE LEE ROBERTS v. STATE OF TENNESSEE Court:TCCA Attorneys: Tecia Puckett Pryor (post-conviction), Smithville, Tennessee, and Terry D. Dycus (trial and direct appeal), Cookeville, Tennessee, for the appellant, Archie Lee Roberts. Michael E. Moore, Solicitor General, Clinton J. Morgan, Counsel for the State, William Edward Gibson, District Attorney General, and William M. Locke, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The petitioner, Archie Lee Roberts, was found guilty by a jury in the DeKalb County Criminal Court of one count of first degree murder, for which he received a life sentence, and one count of attempted first degree murder, for which he received a sentence of twenty years incarceration. On direct appeal, we affirmed the petitioner's convictions. Subsequently, the petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel, which petition was denied by the post-conviction court. On appeal, the petitioner raises the following issue for our review: whether the post-conviction court erred in denying his claim for relief. 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/robertsa.wpd STATE OF TENNESSEE v. DEBORAH BROWN SMITH Court:TCCA Attorneys: Jerry H. Summers, Chattanooga, Tennessee, for the appellant, Deborah Brown Smith. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussman, Assistant Attorney General; Rodney C. Strong, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Deborah Brown Smith, was indicted for theft of property under $500. See Tenn. Code Ann. S 39-14-103. The district attorney general's office denied her application for pretrial diversion and the trial court, denied the defendant's petition for writ of certiorari. We affirm the judgment. http://www.tba.org/tba_files/TCCA/smithdb.wpd JOEY LEE SMITH v. STATE OF TENNESSEE Court:TCCA Attorneys: Hershell Koger, Pulaski, Tennessee, for the appellant, Joey Lee Smith. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; Mike McCown, District Attorney General; and Robert G. Crigler, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: In April of 1995, a Bedford County jury convicted the petitioner of one count of child rape, multiple counts of aggravated sexual battery, one count of sexual battery, and two counts of reckless endangerment. For these offenses he received an effective sentence of nineteen years. Having unsuccessfully pursued a direct appeal, the petitioner filed a pro se post-conviction petition and subsequently received appointed counsel. Through his amended petition the petitioner contended that counsel's alleged misdeeds had risen to the level of ineffective assistance of counsel and also that certain actions taken by the trial court had violated his due process rights. The trial court conducted an evidentiary hearing on these matters and denied the petitioner relief. From this denial the petitioner brings this action again asserting that he received ineffective assistance both at trial and on direct appeal. However, following our review of the record, we find that the trial court correctly denied the petition, and we, therefore, affirm the lower court's decision. http://www.tba.org/tba_files/TCCA/smithjoey.wpd STATE OF TENNESSEE v. JOSEPH M. STONE Court:TCCA Attorneys: Michael J. Flanagan, Nashville, Tennessee (on appeal), and Brent Horst, Nashville, Tennessee (at trial), for the appellant, Joseph M. Stone. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; S. Carran Daughtrey and Bret Gunn, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Joseph M. Stone, was indicted on six counts of burglary, three Class D felony thefts, two Class E felony thefts, and two misdemeanor thefts. After the defendant entered pleas of guilt to six counts of burglary and one Class E felony theft, the trial court imposed Range III sentences of 10 years on each burglary and five years on the theft. Because two of the sentences for burglary were ordered to be served consecutively, the effective sentence is 20 years. In this appeal of right, the defendant argues that the trial court had no authority to impose consecutive sentencing. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/stonejm.wpd VELDORA L. TROUT v. STATE OF TENNESSEE Court:TCCA Attorneys: Chadwick G. Hunt, Savannah, Tennessee, for the appellant, Veldora L. Trout. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The Petitioner was charged with the attempted first degree murder of her ex-fiance. Tenn. Code Ann. S 39-12-107. In a negotiated plea agreement, the Petitioner accepted a fifteen-year sentence. The Petitioner subsequently filed a petition for post-conviction relief alleging ineffective assistance of counsel. The Petitioner's petition was subsequently heard and dismissed. This appeal followed, with the Petitioner setting forth three separate grounds upon which she contends that trial counsel was ineffective: (1) counsel failed to prepare an adequate defense; (2) counsel failed to investigate and highlight the past relationship between the victim and Petitioner; and (3) counsel failed to seek witnesses to support an insanity defense. After a thorough review of the record, we agree with the post-conviction court that the Petitioner received effective assistance of counsel. The post- conviction court's dismissal of the Petitioner's petition for post-conviction relief is affirmed http://www.tba.org/tba_files/TCCA/troutvl.wpd Municipal regulation of smoking in restaurants Date: April 9, 2001 Opinion Number: 01-053 http://www.tba.org/tba_files/AG/OP53.pdf Authority of Supreme Court to Require Collection of Case-Related Data Date: April 9, 2001 Opinion Number: 01-054 http://www.tba.org/tba_files/AG/OP54.pdf Use of Screening Panels and Investigative Subpoenas by the Health Related Boards Date: April 10, 2001 Opinion Number: 01-055 http://www.tba.org/tba_files/AG/OP55.pdf ---- Payment of Litigation Tax by an Individual with Convictions in Multiple Criminal Cases QUESTION Date: April 11, 2001 Opinion Number: 01-056 http://www.tba.org/tba_files/AG/OP56.pdf Requirement for Street Number Display Date: April 11, 2001 Opinion Number: 01-057 http://www.tba.org/tba_files/AG/OP57.pdf Sales and Use Tax Exemption for Purchases Made Through TennCare Date: April 11, 2001 Opinion Number: 01-058 http://www.tba.org/tba_files/AG/OP58.pdf PLEASE FORWARD THIS E-MAIL! 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