July 12, 2001 Volume 7 — Number 126 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 04 New Opinion(s) from the Tennessee Court of Appeals 05 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. Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink MARIKA AVERY v. THOMAS EDWARD AVERY Court:TCA Attorneys: Mark Hartzog, Franklin, Tennessee, John D. Kitch, Nashville, Tennessee, for the appellant, Thomas Edward Avery. Mary Frances Lyle, Nashville, Tennessee, for the appellee, Marika Avery. Judge: COTTRELL First Paragraph: In this divorce case ending a 25 year marriage, the trial court classified a bequest made solely to the husband as marital property under an "implied partnership" theory and divided the bequest equally. The parties' other property was divided, and the wife was awarded alimony in futuro. The husband appeals the classification and division of property and the award of alimony in futuro. We reverse the trial court's classification of the bequest as marital property and classify the original bequest as Husband's separate property. We find the increase in value of that separate property to be marital because of the parties' contribution to its maintenance and increase. We modify the award of marital property accordingly, modify the alimony award, and decline to award Wife attorney fees on appeal. http://www.tba.org/tba_files/TCA/averym.wpd CITIZEN'S TRI-COUNTY BANK v. FRANK HARTMAN, et al. Court:TCA Attorneys: Lynne D. Swafford, Pikeville, For Appellants, Ina R. Hartman and Mary Francis Hixson Stephen T. Greer, Russell Anne Swafford, Dunlap, For Appellee, Frank Hartman, Executor of the Estate of J. E. Hartman M. Keith Davis, Dunlap, For Appellee, Citizens Tri-County Bank Judge: CRAWFORD First Paragraph: After a dispute arose between the widow and executor of husband's estate concerning ownership of two bank accounts, the bank filed a declaratory judgment action to determine ownership. The trial court determined that the checking account was owned by the widow, and the savings account was part of the decedent's estate. Both parties appealed. We reverse in part and affirm in part, declaring that both accounts are part of the husband's estate. http://www.tba.org/tba_files/TCA/citizensbank.wpd STATE OF TENNESSEE ex rel. COMMISSIONER OF TRANSPORTATION v. MEDICINE BIRD BLACK BEAR WHITE EAGLE, et al. Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, and Michael Moore, Solicitor General, for the appellant, State of Tennessee. Virginia Lee Story, Franklin, Tennessee and John E. Herbison, Nashville, Tennessee, for the Tennessee Commission of Indian Affairs and Toye Heape, Executive Director of the Tennessee Commission of Indian Affairs. Joe W. McCaleb, Hendersonville, Tennessee, for the appellees, Medicine Bird Black Bear White Eagle, Albert Bender, Leela Vaughn, Rogers Clinch, Grady Jones, Michael Simms, Norman Totten, Sheila Totten, Edna Faye, Dale Mitchell, Robin Lockwood, and Anita Stevens. Joseph H. Johnston, Nashville, Tennessee, for the appellees, Gilbert Cupp, Dan Kirby, and Marion Dunn. Judge: KOCH First Paragraph: This appeal involves the efforts of the Tennessee Department of Transportation to widen the intersection of Hillsboro Road and Old Hickory Boulevard in Williamson County. After the discovery of two ancient graves near the intersection, the Department filed suit in the Chancery Court for Williamson County seeking permission to relocate the human remains found on the property and to discontinue the use of the property as a burial ground. Over the Department's objection, the trial court permitted the Tennessee Commission of Indian Affairs, its executive director, and fifteen individual Native Americans to intervene to oppose the relocation of the graves. After disqualifying the Attorney General and Reporter from representing the Commission, the trial court appointed two private lawyers to represent the Commission. We granted the Department's application for an extraordinary appeal to determine (1) whether the Commission, its executive director, and the individual Native Americans meet the qualifications in Tenn. Code Ann. S 46-4-102 (2000) to participate in these proceedings as "interested persons," (2) whether the Attorney General and Reporter should have been disqualified from representing the Commission and its executive director, and, if so, (3) whether the trial court has authority to appoint private counsel to represent the Commission and its executive director. We have determined that neither the Commission, nor its executive director, nor the fifteen individual Native Americans meet the statutory requirements to participate as "interested persons" in these proceedings and that denying "interested person" status to the individual Native Americans does not interfere with their free exercise rights or rights of conscience guaranteed by U. S. Const. amend. I and Tenn. Const. art. I, S 3. We have also determined that the trial court erred by disqualifying the Attorney General and Reporter from representing the Commission and its executive director and by appointing private attorneys to represent the Commission. Accordingly, we reverse and vacate the trial court's orders and remand the case for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/statevmedicinebird.wpd PAMELA J. WRIGHT (QUILLEN) v. DALE M. QUILLEN Court:TCA Attorneys: Helen Sfikas Rogers, Nashville, Tennessee, for the appellant, Pamela J. Wright. John L. Whitfield, Jr. and Irene R. Haude, Nashville, Tennessee, for the appellee, Dale M. Quillen. Judge: FARMER First Paragraph: This appeal arises from the trial court granting a Rule 60 motion to suspend the judgment in a divorce action and allow a new trial. Husband and Wife were divorced in 1994. At that time, Wife was awarded the entirety of Company upon the condition she pay Husband $500,000 for the portion of Company awarded to him in the property division. Shortly after Wife paid Husband the money, Company sold an asset previously believed to be worthless for $1.7 million. Husband filed a Rule 60 motion in 1998 to set aside the trial court's 1994 property division on the basis that Wife had fraudulently valued the asset at $0 during the divorce hearing. The trial court granted the Rule 60 motion, setting a new trial to redetermine the value of Company at the time of the divorce. We reverse. http://www.tba.org/tba_files/TCA/wrightpamelaj.wpd DANIEL M. BANKS v. STATE OF TENNESSEE Court:TCCA Attorneys: William A. Kennedy, Assistant Public Defender, Blountville, Tennessee, for the appellant, Daniel M. Banks. Paul G. Summers, Attorney General & Reporter; Peter M. Coughlan, Assistant Attorney General; and Lewis Combs, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Daniel M. Banks, appeals the trial court's denial of his petition for post-conviction relief. Because the petitioner was provided the effective assistance of counsel and knowingly and voluntarily entered his pleas of guilt to possession of marijuana with intent to sell, possession of over 0.5 grams of cocaine with intent to sell, and possession of drug paraphernalia, the judgment is affirmed. http://www.tba.org/tba_files/TCCA/banksdanielm.wpd STATE OF TENNESSEE v. WILLIAM J. CLOUSE Court:TCCA Attorneys: Douglas Thomas, Algood, Tennessee, for the appellant, William J. Clouse. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; Dale Potter, District Attorney General; and Thomas J. Miner, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: In this case, we granted the appellant's application for an interlocutory appeal to determine whether the Van Buren County Circuit Court erred in denying the appellant's motion to dismiss the State's indictment charging him with driving on a revoked license, fourth offense, and violating the Motor Vehicle Habitual Offenders Act. Following a careful review of the record and the parties' briefs, we conclude that the State's prosecution may proceed. http://www.tba.org/tba_files/TCCA/clousewj.wpd HAYES CONCURRING http://www.tba.org/tba_files/TCCA/clousewjconcur.wpd SMITH DISSENTING http://www.tba.org/tba_files/TCCA/clousewjdissent.wpd STATE OF TENNESSEE v. JAMES L. HUNSAKER Court:TCCA Attorneys: Kevin C. Angel, Oak Ridge, Tennessee, for the appellant, James L. Hunsaker. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; and Jan Hicks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, James L. Hunsaker, was charged with ten counts of rape of a mentally defective victim, Class B felonies, in violation of Tenn. Code Ann. S 39-13-503. The defendant filed a motion to dismiss the first nine counts of the indictment, involving offenses alleged to have occurred between the autumn of 1992 and the spring of 1994, as barred by the statute of limitations. The trial court ruled that concealment was inherent in the victim's mental defect and that the statute of limitations was tolled. See Tenn. Code Ann. S 40-2-101. The defendant filed a motion for interlocutory appeal to this court. Because the first nine counts of the indictment are barred by the statute of limitations, the judgment of the trial court is reversed. Each of the nine counts is dismissed. http://www.tba.org/tba_files/TCCA/hunsakerjamesl.wpd STATE OF TENNESSEE v. KELLY LAYNE Court:TCCA Attorneys: Phillip A. Condra, District Public Defender, for the appellant, Kelly Layne. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; James Michael Taylor, District Attorney General; and Steven H. Strain, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Kelly Layne, appeals his conviction for selling a counterfeit controlled substance, a Class E felony, for which he was sentenced to one year, eight months, all but ninety days to be served in a community corrections program, and fined $2,500. He contends that venue was not proven and that his sentence is excessive. We affirm the conviction and sentence, except we reduce the fine to $1,500. http://www.tba.org/tba_files/TCCA/laynek.wpd STATE OF TENNESSEE v. DANIEL THOMASON Court:TCCA Attorneys: Kathryn S. Evans (at trial), Assistant Public Defender; Jeffrey A. DeVasher, (on appeal), Assistant Public Defender, Nashville, Tennessee, for the Appellant, Daniel Thomason. Paul G. Summers, Attorney General & Reporter; Jennifer L. Smith, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Derrick Scretchen, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Daniel Thomason appeals from the aggravated robbery conviction he received at a jury trial in the Davidson County Criminal Court. Thomason is serving an eight-year sentence in the Department of Correction for his crime. In this appeal, he challenges the sufficiency of the convicting evidence that he accomplished the robbery "by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon." Because the record before us is does not contain all of the relevant evidence presented at trial, we are precluded from reviewing the sufficiency of the evidence and therefore affirm. http://www.tba.org/tba_files/TCCA/thomasond.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! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. 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