May 9, 2001 Volume 7 — Number 085 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 01 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 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 IN RE: AMENDMENT TO RULE 28 RULES OF THE SUPREME COURT OF TENNESSEE Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/rule28_9damend.wpd JERRY T. BEECH CONCRETE CONTRACTOR, INC. v. LARRY POWELL BUILDERS, INC., et al. Court:TCA Attorneys: Timothy W. Burrow, Nashville, Tennessee, for the appellant, Jerry T. Beech Concrete Contractor, Inc. John R. Reynolds, Nashville, Tennessee, for the appellee, Larry Powell Builders, Inc., Larry Powell and Larry Powell Builders. Judge: INMAN First Paragraph: This is an action by a contractor to receive the balance due under a contract for the construction of two buildings. The owner counterclaimed for damages alleging lack of good workmanship. A principal issue concerned attorney fees, and whether a document purporting to be a contract was, in fact, a contract. We hold that the document proffered by the plaintiff was accepted as a contract by the defendant, and that the attorney fee provision is enforceable. http://www.tba.org/tba_files/TCA/beechconcrete.wpd TOMMY BURGESS, et al. v. BILL FULLER, d/b/a BILL FULLER LANDSCAPING Court:TCA Attorneys: Thomas H. Peebles, IV, Columbia, Tennessee, for the appellant, Bill Fuller, d/b/a Bill Fuller Landscaping. J. Russell Parkes, Columbia, Tennessee, for the appellees, Tommy Burgess, and wife, Bonnie Burgess. Judge: CANTRELL First Paragraph: In this dispute over a landscaping contract, the Circuit Court of Maury County held that the contractor breached the agreement. The defendant contends that the court rewrote the agreement. We disagree and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/burgesst.wpd STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. D. S. Court:TCA Attorneys: Kathleen G. Morris, Nashville, Tennessee, for the appellant, D. S. Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children's Services. Judge: INMAN First Paragraph: The parental rights of the petitioner (Mother) to her child , "R.", born January 29, 1997 during her Mother's incarceration, were terminated upon a finding that statutory grounds therefore were proved by clear and convincing evidence. Weighing very carefully the Mother's constitutional right to care for her child, on the one hand, and the best interests of the child, on the other, we vacate the judgment and remand for further proceedings. http://www.tba.org/tba_files/TCA/ds.wpd STATE OF TENNESSEE ex rel. WOODY M. HARTLEY v. JENNIFER L. ROBINSON Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter and Kim Beals, Assistant Attorney General, for the appellant, State of Tennessee, ex rel. Woody M. Hartley. Phillip Robinson, Nashville, Tennessee, for the appellee, Jennifer L. Robinson. Judge: FARMER First Paragraph: After divorce, Husband was ordered to pay child support to Wife for care of his minor children. Husband was employed as a commercial truck driver by Company. Thereafter, Husband was diagnosed with seizure disorder that required medication to treat. As a result, Husband lost his commercial trucking license as mandated by Federal Regulations. Upon losing his job as a commercial truck driver, Husband accepted a warehouse position with Company for considerably less money. He petitioned the court for a reduction of child support commensurate with his lower salary. The trial court found that he was underemployed and denied the reduction. Husband appealed. Although he failed to submit a transcript or statement of the evidence in the record, the trial court's order contains stipulated facts. We reverse and remand for entry of order reducing child support. http://www.tba.org/tba_files/TCA/hartleywoodym.wpd ARTHUR W. KERR, III v. CHRISTINA A. KERR Court:TCA Attorneys: D. Scott Parsley, Nashville, Tennessee, for the appellant, Christina A. Kerr. Charlotte U. Fleming and Timothy J. Richter, Springfield, Tennessee, for the appellee, Arthur W. Kerr, III. Judge: CANTRELL First Paragraph: The trial court granted the parties a divorce, divided the marital property, and ordered child support, but not alimony. On appeal, the wife argues that the trial court erred in its division of marital property and in its failure to award her rehabilitative alimony. We affirm the trial court. http://www.tba.org/tba_files/TCA/kerraw.wpd THE JOHN LEE COMPANY, INC. v. LAMAR HAYNES, et al. Court:TCA Attorneys: Charles Patrick Flynn and Michael K. Radford, Brentwood, Tennessee, for the appellant, The John Lee Company, Inc. Lew Conner and Joel T. Galanter, Nashville, Tennessee, for the appellees, Lamar Haynes and James Caden. Judge: INMAN First Paragraph: The plaintiff, a manufacturers' representative, filed this action for a declaratory judgment that it is not indebted to the defendant for commissions on sales of tee shirts manufactured by Tee Jays Manufacturing Company and sold to Planet Hollywood, in light of the fact that the defendant's sole participation was to arrange a meeting between buyer and seller. The Chancellor found the plaintiff was liable for the commission under a contract theory. We affirm. http://www.tba.org/tba_files/TCA/leejohn.wpd In re: ESTATE OF PAULINE MADDOX Court:TCA Attorneys: Wm. Kennerly Burger, Murfreesboro, Tennessee, for the appellant, Dorothy V. Maddox Wilson. Philip C. Kelly and Gwynn K. Smith, Gallatin, Tennessee, for the appellees, Joe Whitaker and Allen Whitaker. Judge: KOCH First Paragraph: This appeal involves the testamentary intent of an 89-year-old widow who died leaving a sizeable estate. After one of the decedent's grandsons, acting as her executor, submitted for probate a February 1991 will and a June 1995 codicil, the decedent's surviving daughter filed a will contest proceeding in the Chancery Court for Sumner County, alleging that the will had been procured by the executor's undue influence and that the distribution of the estate should be governed by a 1989 holographic instrument. Following a bench trial, the trial court upheld the validity of the 1991 will and the 1995 codicil. On this appeal, the decedent's daughter asserts that the trial court erred by determining that the 1991 will and the 1995 codicil expressed the decedent's testamentary wishes rather than the 1989 document. We have determined that the evidence supports the trial court's conclusions and, therefore, affirm the judgment. http://www.tba.org/tba_files/TCA/maddoxp.wpd KRISHNALAL PATEL, et al. v. DILEEP PATEL Court:TCA Attorneys: Phillip L. Davidson, Nashville, Tennessee, for the appellants, Krishnalal Patel, Seshan Natarajan, Mohammad Ghani, Sushil Bagri, Chilakammari Yeshwant, Vijaychandram Patel, and Pradeep Kakaad. Daniel D. Warlick, Nashville, Tennessee, for the appellee, Dileep Patel. Judge: FARMER First Paragraph: The SREE General Partnership was formed for the purpose of owning and managing motel property in Nashville, Tennessee. During the ownership period, the property deteriorated. The partners sued a co-partner for breach of fiduciary duty, claiming that his negligent management of the property was what caused the deterioration and resulting economic loss. The trial court ruled for the defendant. We affirm. http://www.tba.org/tba_files/TCA/patelkrishnalal.wpd JAMES C. PYBURN, et al. v. BILL HEARD CHEVROLET Court:TCA Attorneys: James W. Cameron, III, and Alexandra Coulter Cross, Nashville, Tennessee, for the Appellant Bill Heard Chevrolet. Douglas S. Johnston, Jr., and George E. Barrett, Nashville, Tennessee, John W. Barrett and Charles Barrett, Lexington, Mississippi, and Tom Scott, Knoxville, Tennessee, for the Appellee James C. Pyburn. Judge: SWINEY First Paragraph: James C. Pyburn ("Plaintiff") filed a complaint styled "Class Action Complaint" against Bill Heard Chevrolet ("Defendant") arising from Plaintiff's purchase of a 1999 Chevrolet van. Plaintiff claims he was told by Defendant that it could arrange financing through General Motors Acceptance Corporation ("GMAC") at competitive rates offered by GMAC. Plaintiff alleges that he did not obtain GMAC's real interest rate, but instead received a "secretly inflated" interest rate, and that Defendant was paid a kickback on the interest rate over and above the lender's real interest rate. Plaintiff sued pursuant to the Tennessee Consumer Protection Act ("TCPA"), T.C.A. S 47-18-101, et seq., and also asserted several common law theories of recovery. At the time of the purchase, Plaintiff and Defendant executed an Arbitration Agreement ("Agreement") covering the claims currently asserted by Plaintiff. Defendant moved to compel arbitration pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. S 2. The Trial Court held that the FAA applied, that the Agreement did not need separate consideration to be enforceable, that it was not an unenforceable adhesion contract, and that TCPA claims in general were amenable to arbitration under the FAA. The Trial Court further held, however, that this particular Agreement was not enforceable because of the unavailability of class action or injunctive relief in an arbitral forum, and because the costs of arbitration were "potentially prohibitive" since Plaintiff's claims were so small. We reverse the Trial Court's holding that the Agreement is not enforceable. http://www.tba.org/tba_files/TCA/pyburnjc.wpd STATE OF TENNESSEE v. SEAN W. CONWAY Court:TCCA Attorneys: Lee Ofman, Franklin, Tennessee, for the appellant, Sean W. Conway. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Sharon Guffee, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was indicted for driving under the influence (DUI), driving while his alcohol concentration was .10% or more (DUI per se), and DUI, second offense. After a jury trial on DUI and DUI per se, the jury acquitted the defendant of DUI and was unable to reach a verdict on DUI per se. A second trial was held, and the jury convicted the defendant of DUI per se. The trial judge then found this conviction to be a second offense. In this appeal, the defendant alleges (1) the defendant's retrial for DUI per se violated the principles of double jeopardy; (2) the trial court erroneously admitted the results of the breath test and related evidence; (3) the trial court erroneously admitted testimony of the arresting officer concerning his encounters with other motorists charged with DUI; (4) the trial court improperly considered a prior conviction for enhancement of the defendant's sentence; and (5) the trial judge erroneously failed to recuse himself. Upon review of the record, we reduce the defendant's conviction to DUI, first offense, remand for resentencing, and affirm the trial court in all other respects. http://www.tba.org/tba_files/TCCA/conwaysw.wpd STATE OF TENNESSEE v. JACOB LEE DAVIS Court:TCCA Attorneys: John B. Nisbet, III, Cookeville, Tennessee (on appeal); Donna Hargrove, District Public Defender; A. Jackson Dearing, III, Assistant Public Defender; Raymond W. Fraley, Jr., Fayetteville, Tennessee, and Rich McGee, Nashville, Tennessee (at trial), for the appellant, Jacob Lee Davis. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; W. Michael McCown, District Attorney General; Weakley E. Barnard, Assistant District Attorney General; and Ann L. Filer, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Following a jury trial, Defendant, Jacob Lee Davis, was convicted of premeditated first degree murder, reckless endangerment, and carrying a weapon on school property. The trial court sentenced him to life imprisonment for the first degree murder conviction and one year each for the reckless endangerment and carrying a weapon on school property convictions. The trial court ordered that the latter sentences be served concurrent to the sentence for life imprisonment. On appeal, the Defendant challenges the sufficiency of the evidence to sustain each of the convictions and argues that the trial court erred in failing to strike six potential jurors for cause. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/davisjl.wpd BILLY SALEEM EL-AMIN, aka BILLY NOBLE FORREST v. JACK MORGAN, Warden, and STATE OF TENNESSEE Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter, and Elizabeth B. Marney, Assistant Attorney General, for the appellant, State of Tennessee. R. Price Nimmo (on appeal) and James O. Martin, III (at trial), Nashville, Tennessee, for the appellee, Billy Saleem El-Amin. Judge: GLENN First Paragraph: The petitioner filed a petition for writ of habeas corpus, contending that the two sentences for which he was incarcerated were being served concurrently and that both had expired, resulting in his being held illegally by the Tennessee Department of Correction for the second sentence. However, the Court of Appeals, presented previously with this same issue by the petitioner, determined that the sentences were to be served consecutively. Thus, the second sentence has not expired. We reverse the order of the post-conviction court that the two sentences were served concurrently and that the second sentence has expired. The petition for writ of habeas corpus is dismissed. http://www.tba.org/tba_files/TCCA/el-aminbs.wpd STATE OF TENNESSEE v. DENNIS R. JACKS Court:TCCA Attorneys: J. Thomas Marshall, Jr., District Public Defender, and Nancy Carol Meyer, Assistant Public Defender, for the appellant, Dennis R. Jacks. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; James N. Ramsey, District Attorney General; and Janice G. Hicks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals from the revocation of his probation, contesting the trial court's jurisdiction. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/jacksdr.wpd STATE OF TENNESSEE v. CYNTHIA TAYLOR MANN Court:TCCA Attorneys: Collier W. Goodlett, Assistant Public Defender, Clarksville, Tennessee, for the Appellant, Cynthia Taylor Mann. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; John W. Carney, Jr., District Attorney General; and B. Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pleaded guilty to theft of property valued over sixty-thousand dollars, a Class B felony. The trial court sentenced the Defendant as a Range I, standard offender to the minimum eight-year sentence, to be served in the Tennessee Department of Correction. The Defendant now appeals, arguing that the trial court erred in denying her alternative sentencing. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mannct.wpd STATE OF TENNESSEE v. MICHAEL A. MILLER Court:TCCA Attorneys: John B. Nisbet, III; David N. Brady, District Public Defender; and Cynthia Lyons, Assistant District Public Defender, Cookeville, Tennessee (on appeal) and Anthony Turner, Crossville, Tennessee (at trial) for the appellant, Michael A. Miller. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; William Edward Gibson, District Attorney General; and Anthony J. Craighead, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted in the Cumberland County Criminal Court of aggravated sexual battery of a seven-year-old boy. Following the trial court's denial of his motion for a new trial, the defendant filed an appeal as of right to this court, raising three issues: (1) whether the evidence was sufficient for a rational trier of fact to find him guilty beyond a reasonable doubt of aggravated sexual battery; (2) whether the trial court abused its discretion in denying his motion for a new trial, based upon newly discovered evidence; and (3) whether the trial court erred in failing to instruct the jury on lesser-included offenses. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/millerma.wpd STATE OF TENNESSEE v. VICTOR D. NEUENSCHWANDER Court:TCCA Attorneys: Gene Honea, Assistant Public Defender, for the appellant, Victor D. Neuenschwander. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pleaded guilty to sexual battery by an authority figure, a Class C felony. The Defendant was sentenced as an especially mitigated offender to two years and seven months in the Tennessee Department of Correction. The Defendant now appeals, arguing that the trial court erred in denying him alternative sentencing. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/nuenschwander.wpd DAVID PATRICK PEARSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Mark E. Stephens, District Public Defender; and R. Scott Carpenter and Paula R. Voss, Assistant Public Defenders, for the appellant, David Patrick Pearson. Michael E. Moore, Solicitor General; Patricia C. Kussmann, Assistant Attorney General; Randall E. Nichols, District Attorney General; Marsha L.K. Selecman, Assistant District Attorney General; and Jerry Hall, Special Assistant District Attorney, for the appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner appeals from the Knox County Criminal Court's dismissal of his petition for post- conviction relief, by which he sought to set aside his earlier guilty pleas. On appeal, the petitioner presses his claim that because he received ineffective assistance of counsel, his guilty pleas were not voluntary and knowing. Finding that the services of the petitioner's trial counsel were below the range of competence demanded of attorneys in criminal cases and that the petitioner was thereby prejudiced, we reverse the judgment of the post-conviction court, vacate the petitioner's convictions, and set aside the petitioner's guilty pleas without prejudice to further proceedings on the underlying charges. http://www.tba.org/tba_files/TCCA/pearsondp.wpd STATE OF TENNESSEE v. KEITH SLATER. Court:TCCA Attorneys: Hershell D. Koger, Pulaski, Tennessee, for appellant, Keith Slater. Paul G. Summers, Attorney General & Reporter; Marvin E. Clements, Jr., Assistant Attorney General, Nashville, Tennessee; Mike Bottoms, District Attorney General, Lawrenceburg, Tennessee for appellee, State of Tennessee. Judge: SMITH First Paragraph: Following a confession, Keith Slater, the Defendant and Appellant, was indicted by a Giles County Grand Jury for premeditated first-degree murder. The Defendant moved to suppress his confession, but the trial court denied his motion. The Defendant was then tried, convicted and sentenced to life in prison. The Defendant appealed that conviction, and a panel of this Court remanded the case to the trial court for another suppression hearing. The trial court held that hearing and again dismissed the Defendant's suppression motion. Because the evidence does not preponderate against the trial court's findings, we affirm its judgment. http://www.tba.org/tba_files/TCCA/slaterkeith.wpd STATE OF TENNESSEE v. MARK A. STACY Court:TCCA Attorneys: Charles M. Corn, District Public Defender, and A. Wayne Carter, Assistant District Public Defender, Cleveland, Tennessee, for the appellant, Mark A. Stacy. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Carl F. Petty, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was indicted by a Polk County Grand Jury for first degree murder. Following a two- day trial, he was found guilty of second degree murder, a Class A felony. The trial court sentenced the defendant to twenty-three years as a Range I, violent offender in the Tennessee Department of Correction. In this appeal as of right, the defendant does not challenge his conviction but contends only that his sentence is excessive. Having reviewed the entire record, including the transcript of the sentencing hearing, we conclude that the defendant's issues concerning the length of his sentence are without merit. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/stacyma.wpd STATE OF TENNESSEE v. DAVID WALTER TROXELL Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Kim Menke, Assistant District Attorney General, for the appellant, State of Tennessee. William B. (Jake) Lockert, III, District Public Defender, Ashland City, Tennessee, for the appellee, David Walter Troxell. Judge: WOODALL First Paragraph: Defendant, charged with possession with intent to sell and/or deliver a controlled substance and possession of drug paraphernalia, filed a motion to suppress over 300 grams of cocaine, paraphernalia, and U.S. currency discovered during a search of his vehicle. The trial court, Dickson County, granted Defendant's motion to suppress the evidence on the ground that the search impermissibly exceeded the scope of Defendant's consent. The State appealed. After a review of the record, we reverse the judgment of the trial court. http://www.tba.org/tba_files/TCCA/troxelldw.wpd PLEASE FORWARD THIS E-MAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. 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