April 26, 2001 Volume 7 — Number 077 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 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 07 New Opinion(s) from the Tennessee Court of Appeals 03 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 BILLY CROWE, et al. v. MAURY COUNTY, TN, et al. Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, Phyllis A. Childs, Assistant Attorney General, Nashville, for Appellant Thomas H. Peebles, IV, Columbia, for Appellees Judge: HIGHERS First Paragraph: This appeal arises from the purchase of part of the Appellees' property by the Appellant. The Appellees filed a complaint against the Appellant in the Circuit Court of Maury County, alleging trespass, material misrepresentation of fact or mutual mistake of fact, inverse condemnation, and unauthorized use of property. The Appellant filed a motion to dismiss. The trial court granted the motion on all counts but the inverse condemnation claim. Following a jury trial on the inverse condemnation claim, the jury found in favor of the Appellees in the amount of $12,000.00. The Appellees filed a motion for attorney's fees with the trial court, seeking $29,116.29. The trial court awarded the full amount of attorney's fees requested. The Appellant appeals the award of attorney's fees by the Circuit Court of Maury County. For the reasons stated herein, we remand this case for further findings of fact. http://www.tba.org/tba_files/TCA/crowebilly.wpd IN RE: THE ESTATE OF LESTER HILL DOYLE AND THE ESTATE OF EDGAR J. DOYLE v. WILLIAM L. HUNT Court:TCA Attorneys: David D. Peluso, Hohenwald, Tennessee, for the appellant, William L. Hunt. Thomas H. Ware, Nashville, Tennessee, for the appellees, The Estate of Lester Hill Doyle and The Estate of Edgar J. Doyle. Judge: FARMER First Paragraph: The beneficiaries of the Edgar J. Doyle estate and trust petitioned the court for removal of the executor/trustee of the estates and trusts of Lester Hill Doyle and Edgar J. Doyle for, inter alia, failure to timely file the required inventories and accountings of both estates. Finding that the executor/trustee breached his fiduciary duty, the trial court removed the executor/trustee and appointed a third party not nominated in either will as the successor executor/trustee in both estates. The executor/trustee alleges error with his removal without an evidentiary hearing and the court's appointment of the successor trustee. We reverse. http://www.tba.org/tba_files/TCA/doylelesterhill.wpd DEBORAH HARRIS v. HOWELL B. DALTON and MEDICAL ASSOCIATES, P.C. Court:TCA Attorneys: Pamela R. O'Dwyer and Randall D. Larramore, Chattanooga, Tennessee, for Appellant, Deborah L. Harris. William H. Horton, Chattanooga, Tennessee, for Appellee, Medical Associates, P.C. Judge: FRANKS First Paragraph: In this action for sexual harassment, the jury returned verdicts for plaintiff. Responding to a motion J.N.O.V., the Trial Judge entered judgment for defendants. Plaintiff appealed. We reverse and remand for a new trial. http://www.tba.org/tba_files/TCA/harrisd.wpd LARRY W. HOPKINS v. TENNESSEE BOARD OF PAROLES AND PROBATION Court:TCA Attorneys: Larry W. Hopkins, Whiteville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and Arthur Crownover, II, Senior Counsel, Nashville, Tennessee, for the appellee, Tennessee Board of Paroles and Probation. Judge: KOCH First Paragraph: This appeal involves a prisoner's efforts to be paroled from his sentence for aggravated rape. After the Tennessee Board of Paroles declined for the sixth time to parole him, the prisoner filed a petition for common-law writ of certiorari in the Chancery Court challenging the Board's latest decision and the procedure used to reach it. The trial court dismissed the petition for failure to state a claim upon which relief could be granted, and the prisoner has appealed. We affirm the trial court's decision. http://www.tba.org/tba_files/TCA/hopkinslw.wpd STATE OF TENNESSEE, ex rel KANDY K. BISSONETTE, v. JOSEPH MARLAND, III, IN RE: KRB Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter and Stuart Wilson-Patton, Assistant Attorney General, Nashville, Tennessee, for Appellant. John M. Foley, Knoxville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: In this action to establish paternity, the Trial Court dismissed the action on the grounds that a previous action against the same defendant had been dismissed, and the savings statute had run. We reverse. http://www.tba.org/tba_files/TCA/krb.wpd STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. T.M.L. Court:TCA Attorneys: Thomas H. Miller, Franklin, Tennessee, for the appellant T.M.L. Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Assistant Attorney General, for the appellee, State of Tennessee. Judge: CANTRELL First Paragraph: The juvenile court granted a petition to terminate parental rights to three of the children of a Nashville woman. On appeal, the mother challenges the termination in regard to her oldest child only, on the ground that it is not in the child's best interest to be permanently separated from her. We affirm the trial court. http://www.tba.org/tba_files/TCA/statevtml.wpd WOODROW WILSON v. SENTENCE INFORMATION SERVICES, et al. Court:TCA Attorneys: Woodrow Wilson, Clifton, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and Patricia C. Kussmann, Assistant Attorney General, for the appellees, Sentence Information Services, Sentence Management Services, and Tennessee Department of Correction. Judge: KOCH First Paragraph: This otherwise routine dispute over sentence reduction credits raises a seldom-considered point of procedure regarding the proper method for deciding contested facts at the preliminary motion stage. A prisoner filed suit in the Chancery Court for Davidson County against the Tennessee Department of Correction and other state and city officials asserting that he had not been awarded sentence reduction credits allegedly earned while incarcerated in the Davidson County Criminal Justice Center. After the Department filed a Tenn. R. Civ. P. 12.02(1) motion to dismiss on the ground that the prisoner had not exhausted his administrative remedies, the prisoner asserted that he had exhausted all of the remedies available to him from the Department. After considering the arguments and evidentiary materials submitted by both parties, the trial court concluded that the prisoner had not exhausted his administrative remedies and dismissed the suit. On this appeal, the prisoner asserts that the trial court erred when it concluded that he had not exhausted his administrative remedies. We have determined that the evidence regarding the prisoner's exhaustion of his administrative remedies does not preponderate against the trial court's conclusion. Accordingly, we affirm the dismissal of the suit. http://www.tba.org/tba_files/TCA/wilsonw.wpd STATE OF TENNESSEE v. MARCUS W. KEENER Court:TCCA Attorneys: Robert D. Massey, Pulaski, Tennessee, for the appellant, Marcus W. Keener. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; T. Michael Bottoms, District Attorney General; Robert C. Sanders, Assistant District Attorney General; and James G. White, II, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was indicted for first degree murder and convicted by a Lawrence County jury of second degree murder. In this appeal as of right, the defendant presents two issues for our review: (1) whether the evidence was sufficient to support his conviction; and (2) whether the trial court erred in failing to charge the jury on the lesser-included offenses of criminally negligent homicide and reckless homicide. The trial court charged the jury as to first degree murder, second degree murder, and voluntary manslaughter. The defendant received a sentence of twenty years to be served at 100% in the Tennessee Department of Correction. Having reviewed the entire record, we conclude that the evidence was sufficient to convict the defendant of second degree murder. We further conclude that the trial court did not err in failing to instruct on two additional lesser-included offenses. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/keenermw.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/keenermw_concur.wpd STATE OF TENNESSEE v. DANYELLE DEWAIN PARKER Court:TCCA Attorneys: James O. Martin, III, Nashville, Tennessee, for the appellant, Danyelle Dewain Parker. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Rachelle A. Laisnez, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted by a Davidson County Criminal Court jury of aggravated burglary, aggravated assault, and kidnapping, for which he received an effective sentence of eighteen years. In this appeal as of right, he raises the following issues: 1) whether the trial court erred in allowing the victim's son to testify about the defendant's prior assault on the victim; 2) whether the convictions for aggravated assault and kidnapping should have been merged; and 3) whether the trial court erred in imposing consecutive sentencing. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/parkerdd.wpd STATE OF TENNESSEE v. ALVIN RAY TAYLOR Court:TCCA Attorneys: Gregory M. O'Neal, Winchester, Tennessee, for the Appellant, Alvin Ray Taylor. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Elizabeth T. Ryan, Assistant Attorney General, Michael Layne, District Attorney General, and Steve Weitzman, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: Alvin Ray Taylor was convicted by a jury of driving on a revoked license, second offense. The jury fixed his fine at $27,500. Taylor argues on appeal that the fine provisions of Tenn. Code Ann. S 55-50-504(a)(2) permit the imposition of a fine with no maximum limit violating the Eighth Amendment protection against excessive fines. After review, we find the penalty provisions of the statute, as it relates to the amount of fine which may be fixed, unconstitutional and the fine imposed in this case excessive. Accordingly, that portion of the judgment imposing a fine of $27,500 is vacated. The Appellant's fine is modified to reflect a fine of $2,500 pursuant to Tenn. Code Ann. S 40-35-111 (e)(1) ( maximum authorized fine for class A misdemeanor). http://www.tba.org/tba_files/TCCA/tayloralvinray.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/tayloralvinraydis.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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