June 1, 2001 Volume 7 — Number 100 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 06 New Opinion(s) from the Tennessee Court of Criminal Appeals 05 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 THE MATTER OF: A.M.B., D.O.B. 6-13-95, A CHILD UNDER EIGHTEEN (18) YEARS OF AGE Court:TCA Attorneys: Mary Dee Allen, Cookeville, Tennessee, for the appellant, R.B. Paul G. Summers, Attorney General and Reporter; Douglas Earl Dimond, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services. Judge: CANTRELL First Paragraph: The only question involved in this appeal is whether it was in the best interests of a minor child to terminate the parental rights of the child's mother. The Juvenile Court of Putnam County found that fact against the mother. We affirm. http://www.tba.org/tba_files/TCA/amb.wpd PAULA C. BENCRISCUTTO v. LAMESIA SIMMONS Court:TCA Attorneys: Michael P. Mills and Ernest Sykes, Jr., Nashville, Tennessee, for the Appellant, Lamesia A. Simmons. Philip D. Irwin, Nashville, Tennessee, for the Appellee, Paula C. Bencriscutto. J. Mitchell Grissim, Jr., Nashville, Tennessee for the Appellee, Brooke A. Lucas. Judge: DANIEL First Paragraph: This consolidated appeal concerns a multiple vehicle automobile collision which occurred during interstate rush hour traffic in Nashville. Lamesia A. Simmons' vehicle came into contact with the rear portion of Paula C. Bencriscutto's vehicle during an attempted lane change. This impact then caused the Bencriscutto vehicle to come into contact with Brooke A. Lucas' vehicle. Lawsuits were instituted in the Circuit Court of Davidson County by both Lucas and Bencriscutto against Simmons to recover damages associated with the collision. These suits were consolidated for trial and this subsequent appeal. At the close of the Plaintiffs' proof the court directed a verdict in favor of the plaintiffs and against Simmons. The issue of damages was then submitted to the jury with a verdict of $9,947.69 being returned in favor of Bencriscutto and in the amount of $5,482.50 for Lucus. Ms. Simmons appeals insisting that the trial court erred in granting the directed verdict. We affirm the action of the trial court in directing the verdict and the damage award. http://www.tba.org/tba_files/TCA/bencriscutto.wpd DOROTHY CATHCART v. JAMES MARK TILLAR, ET AL. Court:TCA Attorneys: Randy Hillhouse, Lawrenceburg, Tennessee, for the appellant, Dorothy Cathcart. W. Charles Doerflinger, Lawrenceburg, Tennessee, for the appellees, James Mark Tillar, as Administrator with Will Annexed of the Estate of Jerry Don Bruton, American Family Home Insurance Company, and Jewell Bruton and Ernestine Hughes. Judge: CAIN First Paragraph: This case presents the issue of whether the administrator of an estate breached his fiduciary duty, under the circumstances herein presented, when he failed to see that an asset of the estate worth in excess of $10,000 was properly insured. We find that Defendant breached his duty when, after he was informed by Plaintiff that she had paid off the bank note on the mobile home after attempting to sell it, he failed to make any inquiries into who would pay the insurance, how the insurance would be paid, when the insurance was due, or whether any insurance was in effect. This breach of duty caused loss to the estate when the mobile home was destroyed by a tornado while uninsured. As a result, we find Defendant liable to the estate in the amount of $11,415, as this is the amount the proof showed would have been paid by insurance. http://www.tba.org/tba_files/TCA/cathcartdorothy.wpd EDDIE JOE DORRIS, et al. v. JEFFERY CRISP Court:TCA Attorneys: Louise R. Fontecchio, Nashville, Tennessee, for the appellants, Eddie Joe Dorris and Linda Faye Dorris. Paul A. Rutherford and L. R. DeMarco, Nashville, Tennessee, for the appellee, Chasity Holmes Crisp. Judge: CAIN First Paragraph: Over four months after signing a surrender of her parental rights and consent for her minor child to be adopted, Appellee filed a Petition to Set Aside Surrender on the basis of a procedural defect. The Chancellor held that Appellee had abandoned the child, that the surrender executed by Appellee on June 24, 1999 should be set aside because there was no home study performed prior to the surrender, and dismissed the petitions for adoption. The Chancellor ordered the child returned to the custody of Appellee, which order was stayed by this Court September 19, 2000. The adoptive parents appeal raising the following issues for consideration: (1) Whether the mother has standing to attack the surrender on the basis of a lack of a home study, (2) whether the surrender is valid, and (3) whether the trial court was limited to the criteria set forth in Tennessee Code Annotated section 36-1-113(h) in determining whether termination of parental rights was in the child's best interests. We reverse and find the surrender valid. http://www.tba.org/tba_files/TCA/dorriseddie.wpd MADGE KIRKHAM FELL, et al. v. GLORIA RAMBO, et al. Court:TCA Attorneys: Kevin S. Key, Nashville, Tennessee, for the appellants, Madge Kirkham Fell, Betty Kirkham Bowland, Margaret Sanford Mullens, and Bernice Kirkham Bowers. Barry B. White and Robert O. Binkley, Lewisburg, Tennessee, for the appellees, Gloria Rambo, and the Estate of Nannie Bell Crockett. Judge: CAIN First Paragraph: This case is before the Court on appeal from the action of the trial judge in overruling a Rule 60.02 Motion for Relief From a Final Judgment. Non-jury trial on the merits of the case resulted in a judgment of the trial court finding no lack of capacity of Nannie Bell Crockett and no undue influence exerted upon her. That same final judgment held that Plaintiffs, as remaindermen, under the will of John E. Crockett, received at the death of Nannie Bell Crockett, the remaining proceeds from the sale of a farm during her lifetime, which farm had been willed to her for life by her husband, John E. Crockett, with unlimited power of disposition. On appeal, this Court reversed the judgment of the trial court, finding that the pre-1981 version of Tennessee Code Annotated section 66-1-106 (1993) applied to the case, and that the sale of the farm by the life tenant with unlimited power of disposition, terminated the interest of the remaindermen, and that the remaindermen were not entitled to the proceeds of the sale of the farm still remaining in the possession of Nannie Bell Crockett at the time of her death. This judgment is now final and is reported in Fell v. Rambo, 36 S.W.2d 837 (Tenn. Ct. App. 2000). On remand, the trial court denied the Rule 60.02 motion in issue on this appeal and we affirm the trial court. http://www.tba.org/tba_files/TCA/fellmadge.wpd RUTH MARIE HOLLAND (BEDDINGFIELD) v. MAYBRON HAYES HOLLAND, JR. Court:TCA Attorneys: John S. Colley, III, Columbia, Tennessee, for the appellant, Ruth Marie Holland (Beddingfield). William S. Fleming, Columbia, Tennessee, for the appellee, Maybron Hayes Holland, Jr. Judge: KOCH First Paragraph: This appeal stems from a divorced couple's decision to modify the terms of an agreed order regarding the payment of their marital debt. Almost six years after the parties were divorced in the Chancery Court for Maury County, the husband agreed to release the wife from her obligation to pay a portion of the marital debt in return for her agreement to use her credit to help him purchase a new truck. After the wife repossessed the husband's new truck, the husband requested the trial court to enforce the original agreed order. The trial court determined that the original agreed order remained valid and awarded the husband $18,944 representing the payments the wife should have made under the agreed order. The wife asserts on this appeal that the parties' agreement to modify the agreed order was valid and that she had performed her obligations under the agreement. We agree and, accordingly, reverse the judgment for the husband and direct the trial court to enter an order releasing the wife from her obligation under the agreed order. http://www.tba.org/tba_files/TCA/hollandruthmarie.wpd BETTY L. JOHNSON, et al. v. CHARLES S. SETTLE, M.D., et al. Court:TCA Attorneys: David L. Steed, Jay N. Chamness, Thomas A. Wiseman III, Henry Hine, Keith Jordan, Nashville, Tennessee, for the appellants, Charles S. Settle, M.D., Miller Medical Group, P.C., Debra Sanders, Baptist Healthcare Group and Metro Medical Supply, Inc. Daniel L. Clayton, Nashville, Tennessee, Steven R. Walker, Memphis, Tennessee, for the appellees, Betty L. Johnson and William T. Johnson. Judge: COTTRELL First Paragraph: This is an appeal of a jury verdict based on personal injuries plaintiff received as a result of the wrong acetic acid solution being applied during a colposcopy. Metro Medical Supply, Inc., the supplier of the acid, appeals the trial court's decisions on post trial motions and the amount of the remittitur. Among other grounds, Metro Medical asserts that it is not liable because any acts or omissions on its part were too remote and that there were intervening superceding causes that were the legal and proximate cause of plaintiff's injuries. We agree, and for the reasons below, we find that Metro Medical was not legally liable to plaintiffs and any negligence on its part was superceded by unforeseeable intervening causes. Accordingly, the judgment against Metro Medical Supply, Inc. is reversed. http://www.tba.org/tba_files/TCA/johnsonb.wpd STATE OF TENNESSEE v. KENNETH ANDERSON Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the appellant, Kenneth Anderson. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Mike McCowen, District Attorney General; and C. Daniel Brollier, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Kenneth Anderson, appeals as of right from the revocation of his probation by the trial court. On appeal, he asserts that the trial court erred by ordering him to serve the balance of his sentence in incarceration after finding that he had violated his probation. We find no error; thus, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/andersonk.wpd STATE OF TENNESSEE v. DAVID D. BOTTOMS Court:TCCA Attorneys: Ross E. Alderman, District Public Defender; C. Dawn Deaner, Assistant District Public Defender (on appeal); and Jonathan F. Wing, Assistant District Public Defender (at trial) for the appellant, David D. Bottoms. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Grady A. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant pled guilty in Davidson County Criminal Court to one count of arson, a Class C felony, based on his setting fire to a rental house. According to a plea agreement with the State, he received a four-year sentence as a Range I, standard offender. A sentencing hearing was held to determine the manner of service of his sentence and the amount and manner of payment of any restitution. The trial court ordered that the defendant serve his entire sentence in confinement in the workhouse and that he pay $10,000 in restitution to the victim. In this appeal as of right, the defendant argues that the trial court erred in denying any alternative sentence and in ordering restitution in the amount of $10,000. Having reviewed the record on appeal, we affirm the judgment of the trial court as to the manner of service. As to restitution, we reverse and remand to the trial court. http://www.tba.org/tba_files/TCCA/bottomsdd.wpd STATE OF TENNESSEE v. ALKITA M. ODOM Court:TCCA Attorneys: David A. Doyle, District Public Defender, Gallatin, Tennessee, for the appellee, Alkita Odom. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and J. Craig Myrick, Assistant District Attorney General, for the appellant, State of Tennessee. Judge: WELLES First Paragraph: This is an interlocutory appeal by the State pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The Defendant, Alkita M. Odom, was indicted for the offenses of forgery and criminal simulation, each in the amount of $250,000. The indictment reflected that each offense was a Class B felony. Upon the Defendant's motion, the trial court dismissed the indictment to the extent that it reflected Class B felonies because the court found that for the crime to be anything other than Class E felonies, the Defendant would have had to have actually obtained goods or services. The court then granted the State's motion to amend the indictment to reflect Class E felonies for the purposes of appeal. The State argues on appeal that the trial court improperly dismissed the indictment based on the grade of the offense charged. We agree. Accordingly, we reverse the dismissal of the indictment and reinstate it as originally returned by the Grand Jury. http://www.tba.org/tba_files/TCCA/odomam.wpd STATE OF TENNESSEE v. PAUL DENNIS REID, JR. Court:TCCA Attorneys: Jeffrey A. DeVasher, Assistant Public Defender (on appeal); C. Dawn Deaner, Assistant Public Defender, (at trial and on appeal); J. Michael Engle and David Baker, Assistant Public Defenders, (at trial), Nashville, Tennessee, for the Appellant, Paul Dennis Reid, Jr. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Kathy Morante, Tom Thurman, Roger Moore, Grady Moore, Assistant Attorney Generals, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: Paul Dennis Reid, Jr. was found guilty by a jury of two counts of first-degree murder and one count of especially aggravated robbery. Reid's convictions stem from the execution style murders of two Captain D's employees and the especially aggravated robbery of one of the employees. The jury returned a sentence of death for each of the homicides based upon its finding of three aggravating factors, i.e., (i)(2), prior violent felony; (i)(6), murder committed for the purpose of avoiding prosecution; and (i)(7), murder committed during commission of robbery. The Davidson County Criminal Court subsequently imposed a twenty-five-year sentence for the especially aggravated robbery conviction and ordered this sentence to be served consecutively to the two death sentences. In this appeal as of right, Reid presents numerous issues for our review, including (1) issues arising from suppressed evidence; (2) challenges to the selection of jurors; (3) the sufficiency of the convicting evidence; (4) the admission and exclusion of evidence at both the guilt and penalty phases; (5) the propriety of the prosecution's closing argument during the guilt phase; (6) the failure to instruct on lesser-included offenses; (7) the trial court's act of holding court into late hours of the evening without cause; (8) the admissibility in general and the introduction of specific victim impact evidence; (9) prosecutorial misconduct during closing argument; (10) the propriety of the jury instructions; (11) whether application of the (i)(7) aggravator violates State v. Middlebrooks; (12) the propriety of a twenty-five-year sentence for especially aggravated robbery; (13) the constitutionality of Tennessee's death penalty statutes; and (14) whether the sentences of death imposed by the jury are proportionate sentences. After a careful review of the record, we affirm Reid's convictions for two counts of first-degree murder and one count of especially aggravated robbery. Additionally, we affirm the imposition of the sentences of death and the accompanying sentence for especially aggravated robbery. http://www.tba.org/tba_files/TCCA/reidpdjr_opn.wpd WITT CONCURRING http://www.tba.org/tba_files/TCCA/reidpdjrcon.wpd STATE OF TENNESSEE v. FRANKIE L. RICHARDSON Court:TCCA Attorneys: C. LeAnn Smith, Nashville, Tennessee, for the appellant, Frankie L. Richardson. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Ron Davis, District Attorney General; and Mary Katherine Harvey, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Frankie L. Richardson, appeals as of right from the revocation of his probation. He argues that the trial judge abused his discretion by revoking probation. We find no abuse of discretion; thus, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/richardsonfl.wpd STATE OF TENNESSEE v. JOSEPH DARRYL TAYLOR Court:TCCA Attorneys: John B. Nisbet, III, Cookeville, Tennessee (on appeal); Donna Orr Hargrove, District Public Defender; and Andrew Jackson Dearing, III, Assistant Public Defender, Fayetteville, Tennessee (at trial), for the appellant, Joseph Darryl Taylor. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; W. Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Joseph Darryl Taylor, was convicted of attempt to commit sexual battery, attempt to commit rape, and aggravated kidnapping. In this appeal as of right, Defendant contends that the evidence adduced at trial concerning all three offenses was insufficient to find him guilty and that the trial court erred when it sentenced Defendant. Following a review of the record, we affirm the judgment of the trial court in part and reverse in part. http://www.tba.org/tba_files/TCCA/taylorjd.wpd Conflict of Interest: Rutherford County Highway Commission Date: May 23, 2001 Opinion Number: 01-084 http://www.tba.org/tba_files/AG/OP84.pdf Constitutionality of SB 1070/HB 576--Amendment to Unfair Sales Law Date: May 23, 2001 Opinion Number: 01-085 http://www.tba.org/tba_files/AG/OP85.pdf Authority of Legislative Committee to Review Agency Rules Date: May 23, 2001 Opinion Number: 01-086 http://www.tba.org/tba_files/AG/OP86.pdf Clarification for Authority on HB-0704/SB-0304 Date: May 24, 2001 Opinion Number: Opinion No. 01-087 http://www.tba.org/tba_files/AG/OP87.pdf Validity of HB 2006 / SB 1973, Authorizing Tax on Car Rentals at Airports Date: May 30, 2001 Opinion Number: 01-089 http://www.tba.org/tba_files/AG/OP89.pdf PLEASE FORWARD THIS E-MAIL! 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