July 19, 2001 Volume 7 — Number 131 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):   01 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 05 New Opinion(s) from the Tennessee Court of Appeals 02 New Opinion(s) from the Tennessee Court of Criminal Appeals 04 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 STATE OF TENNESSEE v. ROBERT M. McKNIGHT Court:TSC Attorneys: C. Mark Donahoe, Jackson, Tennessee, for the appellant, Robert M. McKnight. Paul G. Summers, Attorney General & Reporter, Michael E. Moore, Solicitor General, Patricia C. Kussmann, Assistant Attorney General, James G. Woodall, District Attorney General, and Al Earls, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: BIRCH Robert M. McKnight pleaded guilty to two charges of driving under the influence of an intoxicant (DUI) and was sentenced to consecutive terms of 11 months 29 days. The sentence provided that McKnight serve 210 days in jail; the time remaining would be probated. Upon reporting to serve his sentence, however, McKnight was informed that space was not available due to overcrowding and that he would be notified when to return. Over a year later, McKnight was notified to report to begin serving his sentence. Instead of reporting, McKnight filed a Motion for Post-Conviction Relief and/or Writ of Habeas Corpus. Relying upon this Court's holding in State v. Walker, 905 S.W.2d 554 (Tenn. 1995), he contended that the sentences had expired. He asserted also that the State had violated his right to due process because of the excessive delay between sentencing and incarceration. After review of relevant authority, we hold that under Tenn. Code Ann. S 55-10- 403(p)(3) (1998), delay in the service of DUI sentences does not affect the validity of the sentence. Therefore, McKnight's sentences are not expired. We further hold that the facts of this case do not demonstrate that McKnight's right to due process has been violated. Accordingly, the judgment of the Court of Criminal Appeals is affirmed. http://www.tba.org/tba_files/TSC/mcknightr.wpd DENNIS ARMONEIT v. ELLIOTT CRANE SERVICE, INC., et al. Court:TCA Attorneys: Daniel J. Ripper, Chattanooga, Tennessee, for the appellant, Elliott Crane Service, Inc. Sean Antone Hunt, Nashville, Tennessee, for the intervenors, Fox Ridge Homes, Inc. J. Mitchell Grissim, Jr. and John P. Sheahan, Jr., Nashville, Tennessee, for the appellee, Dennis Armoneit. Sarah Hardison, Nashville, Tennessee, for the intervenors, Continental Casualty Company. Judge: KOCH First Paragraph: This appeal arises from an accident involving a crane rented by the plaintiff's employer to aid in a construction project. The plaintiff was helping to attach trusses being lifted by the crane to the roof of a house when the crane's allegedly negligent operation caused him to fall from the roof. The plaintiff filed suit against the owner of the crane in the Circuit Court for Davidson County, alleging that the owner was vicariously liable for the crane operator's actions. The owner of the crane, relying on its standard rental agreement form, sought indemnity from the plaintiff's employer. On the plaintiff's employer's motion for partial summary judgment, the trial court held that the owner of the crane was vicariously liable for the crane operator's alleged negligence and that the indemnity agreement was void as contrary to public policy. The owner of the crane has appealed. We hold that the trial court erred by granting partial summary judgment on the employer's respondeat superior claim but that the trial court properly determined that the indemnity provision in the crane owner's rental agreement is void. http://www.tba.org/tba_files/TCA/armoneitd.wpd RHONDA LOWRIMORE v. CERTIFIED INDUSTRIES, INC. Court:TCA Attorneys: David D. Peluso, Hohenwald, Tennessee, for the appellant, Certified Industries, Inc. Ben Boston and Christopher V. Sockwell, Lawrenceburg, Tennessee, for the appellee, Rhonda Lowrimore. Judge: KOCH First Paragraph: This appeal involves an award of front pay damages in a retaliatory discharge case. An employee who had been injured on the job five times in less than two years filed a retaliatory discharge suit in the Circuit Court for Lewis County alleging that her employer had discharged her in retaliation for her workers' compensation claims. A jury awarded the employee $10,390 in back pay and $20,000 in punitive damages. Thereafter, the trial court determined that reinstatement was not feasible and awarded the employee an additional $36,327 in front pay. On this appeal, the employer challenges the front pay award on two grounds. First, it asserts that the employee was not entitled to front pay. Second, it asserts that if the employee is entitled to front pay, the amount of front pay awarded by the trial court is too high. We have determined that the trial court correctly determined that the employee is entitled to front pay. However, we have also determined that front pay award must be reduced to $25,429 because of an error in the trial court's computations. http://www.tba.org/tba_files/TCA/lowrimorer.wpd CONNIE L. McGAHEY v. JAMES M. WILSON Court:TCA Attorneys: G. Dennis Jinkerson, Goodlettsville, Tennessee, for the appellant, James M. Wilson. H. E. Miller, Jr., Gallatin, Tennessee, for the appellee, Connie L. McGahey. Judge: CAIN First Paragraph: Upon divorce, the parties entered into an agreement that provided the parties would retain ownership as the marital residence as tenants in common, but could not sell the property without mutual consent. Mrs. McGahey now desires to partition the property over her former husband's objection. The special master found that the contract provision barring partition was unenforceable. The chancellor found the provision enforceable but only for a reasonable period of time (sixteen years). Mr. Wilson now appeals the trial court's judgment ordering partition by sale. Resolution of this appeal requires us to examine the effect of a contract barring partition between tenants in common when no time limitation or purpose for the restriction against sale was stated in the agreement. We hold the contract provision to be unenforceable. http://www.tba.org/tba_files/TCA/mcgaheyconnie.wpd RACHEL TANNETTE RICE v. LEE ERIC RICE Court:TCA Attorneys: James Robin McKinney, Jr., Nashville, Tennessee, for the appellant, Lee Eric Rice. Joe F. Gillespie, Jr., Joelton, Tennessee, for the appellee, Rachel Tannette Rice. Judge: KOCH First Paragraph: This appeal involves the dissolution of a four-year marriage. Both parties requested the Circuit Court for Davidson County to grant them a divorce. On the day of trial, the parties stipulated that they should be declared divorced and agreed upon the division of their modest marital estate. Accordingly, the trial court heard proof regarding child custody and child support as well as the wife's request for rehabilitative spousal support. The trial court gave sole custody of the parties' child to the wife and directed the husband to pay $570 per month in child support, as well as all the child's healthcare expenses not covered by insurance. The trial court also ordered the husband to pay the wife $250 per month in rehabilitative support for twenty-four months. On this appeal, the husband takes issue with the trial court's decisions to grant the wife sole custody of the parties' child, to require him to pay the child's medical expenses not covered by insurance, and to pay the wife $250 per month in spousal support for twenty-four months. We have determined that the trial court's decisions are amply supported by the record, and accordingly, we affirm the judgment. http://www.tba.org/tba_files/TCA/ricert.wpd OMAWALI ASHANTI SHABAZZ, A/K/A FRED E. DEAN v. DONAL CAMPBELL, et al. Court:TCA Attorneys: Omawali Ashanti Shabazz, a/k/a Fred E. Dean, Petros, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General and Michael W. Catalano, Associate Solicitor General; Darrell G. Townsend and Derrick C. Smith, Nashville, Tennessee, for the appellees, Donal Campbell, et al. Judge: CAIN First Paragraph: Appellant, a prison inmate, filed suit under the Tennessee Public Records Act against the Commissioner of the Department of Corrections and others seeking disclosure to him of various records alleged to be public records, together with injunctive relief. The Chancellor dismissed the complaint with prejudice and we affirm the Chancellor. http://www.tba.org/tba_files/TCA/shabazzo.wpd STATE OF TENNESSEE v. DAMIEN JACKSON Court:TCCA Attorneys: Karl F. Dean, Public Defender; C. Dawn Deaner, Assistant Public Defender; and Jeffrey A. DeVasher, Assistant Public Defender, Nashville, Tennessee, for the appellant, Damien Jackson. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Damien Marcess Jackson, was indicted for first degree murder and two counts of attempted first degree murder. A jury convicted the Defendant of second degree murder and two counts of attempted second degree murder. He was subsequently sentenced as a Range I offender to twenty-five years for the murder and twelve years for each of the attempted murders, all to run consecutively. In this appeal as of right, the Defendant challenges the trial court's denial of his motion to suppress; the trial court's refusal to order the State to disclose the identity of a confidential informant; the sufficiency of the evidence; and the length and manner of service of his sentences. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/jacksond.wpd ANTHONY P. JONES v. STATE OF TENNESSEE Court:TCCA Attorneys: C. LeAnn Smith (post-conviction) and Laura Dykes (trial), Nashville, Tennessee, for the appellant, Anthony P. Jones. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; Helen M. Donnelly and Tom Thurman, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The petitioner, Anthony P. Jones, pled guilty in the Davidson County Criminal Court to three counts of aggravated sexual battery and received consecutive sentences of ten years for each count for a total effective sentence of thirty years. Subsequently, the petitioner filed a petition for post-conviction relief claiming that he received ineffective assistance of counsel and that his guilty pleas were involuntary and unknowing. The post-conviction court denied his petition. Consequently, the petitioner presents the following issue for our review: whether the post-conviction court erred in denying his claim for post-conviction 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/jonesanthony.wpd School Board Contract with Outside Provider to Operate School Date: July 11, 2001 Opinion Number: 01-111 http://www.tba.org/tba_files/AG/OP111.pdf Delayed BEP Funding Date: July 12, 2001 Opinion Number: 01-112 http://www.tba.org/tba_files/AG/OP112.pdf Teacher Retirement: Beginning and ending dates for school year Date: July 16, 2001 Opinion Number: 01-113 http://www.tba.org/tba_files/AG/OP113.pdf Memphis City Ordinance Date: July 16, 2001 Opinion Number: 01-114 http://www.tba.org/tba_files/AG/OP114.pdf 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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