July 23, 2001 Volume 7 — Number 133 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 04 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 CHARLES DOSS, et al. v. GRACE T. SAWYERS Court:TCA Attorneys: J. Arnold Fitzgerald, Dayton, Tennessee, for the Appellant, Grace T. Sawyers Steven D. Brown, Dayton, Tennessee, for the Appellee, Robert Doss Judge: GODDARD First Paragraph: This is a suit wherein the Plaintiffs seek to remove a cloud in the form of a purchase agreement from the title of property owned by the Plaintiffs. The Trial Court found that the purchase agreement was invalid because of lack of mental capacity of the then owner, Charles Doss, to sign the agreement, and awarded a judgment in the amount of $6900 to the Defendant for payments made under the agreement. We reverse the judgment of the Court relative to the invalidity of the purchase agreement and, in accordance with the prayer of the counter-complaint, order that the property be conveyed by the Clerk and Master to the Defendant subject to payment of the balance owed on the property as determined upon remand. http://www.tba.org/tba_files/TCA/dosscha.wpd IN RE: ESTATE OF JOHN D. GOODIN Court:TCA Attorneys: Joel A. Conkin and Tara B. Hinkle, Kingsport, Tennessee, for the Appellant, Shriner's Hospitals for Children. John E. Sanders, Johnson City, Tennessee, for the Appellee, David Goodin; John L. Bowers, III, Elizabethton, Tennessee, and T.J. Little, Elizabethton, Tennessee, for the Appellee, Dee Goodin Couch; Bonnie Webster, Johnson City, Tennessee, and Jack Carrier, Johnson City, Tennessee, for the Appellee, John W. Goodin. Judge: SWINEY First Paragraph: In this will construction case, the children of John B. Goodin ("Children") and Shriner's Hospitals for Children ("Shriner's Hospitals"), a charity named as a beneficiary in Goodin's will ("Will"), are disputing Goodin's intent expressed in his Will, including the residuary clause, Article XI. The value of specific bequests to the Children far exceed the applicable state and federal estate tax exemption limit of $650,000. Article XI, however, provides that the charities named in the Will ("Charities"), including Shriner's Hospitals, would receive "the sum of $25,000 or an amount necessary to reduce [Goodin's] estate . . . to be a non taxable estate, whichever amount is greater. . . ." The Trial Court held that since Goodin's paramount intent was to provide for his Children, the specific bequests to his Children take precedence over Article XI's bequest to the Charities. Shriner's Hospitals appeals. We affirm as modified. http://www.tba.org/tba_files/TCA/goodinjd.wpd SHARON FAYE BROWN HARTMAN v. LEONARD LEE HARTMAN Court:TCA Attorneys: Jerry W. Laughlin, Greeneville, Tennessee, for the Appellant, Leonard Lee Hartman. Mark D. Slagle, Johnson City, Tennessee, for the Appellee, Sharon Faye Brown Hartman. Judge: SWINEY First Paragraph: In this divorce action, Leonard Lee Hartman ("Defendant"), appeals the Trial Court's award of alimony in futuro to Sharon Faye Brown Hartman ("Plaintiff"), in the amount of $800 per month for twenty years or remarriage, whichever occurs first. Defendant does not dispute the Trial Court's determination that Plaintiff can not be economically rehabilitated. We affirm. http://www.tba.org/tba_files/TCA/hartmansfb.wpd KAREN GARRETT HUMPHRIES v. DAVID ALISON HUMPHRIES Court:TCA Attorneys: David S. Haynes, Bristol, Tennessee, for the appellant, David Alison Humphries. Robert D. Arnold, Johnson City, Tennessee, for the appellee, Karen Garrett Humphries. Judge: SUSANO First Paragraph: In this divorce case, the trial court classified the parties' property, following which it divided the marital property, but declined to order spousal support. The husband appeals, arguing (1) that the trial court erred in classifying the increase in value of his separate property as marital property; (2) that the division of the marital property was not equitable; and (3) that the trial court erred in assigning, without classifying, the wife's credit card debt to the husband. By way of a separate issue, the wife argues that she is entitled to an award of alimony. We affirm. http://www.tba.org/tba_files/TCA/humphrieskg.wpd WILLIAM P. LIVINGSTON, JR. v. MIKE HAYES, et al. Court:TCA Attorneys: William P. Livingston, Jr., Mountain City, Tennessee, Appellant, Pro Se Earl Jerome Melson, Knoxville, Tennessee, for the Appellee, Joel Seal. Gary Prince, Knoxville, Tennessee, for the Appellees, Mike Hayes and Charles Long. William O. Foutch, Morristown, Tennessee, for the Appellees, Jack Fishman, Lakeway Publishers, inc., Citizen Tribune and Robert Moore. Judge: GODDARD First Paragraph: In this appeal from the Circuit Court for Hamblen County, the Plaintiff/Appellant, William P. Livingston, Jr., questions whether the Trial Court erred in entering a summary judgment dismissing his action for libel against the Defendants/Appellees, Mike Hayes, et al. We affirm the judgment of the Trial Court and remand for collection of costs below. We adjudge costs of the appeal against Mr. Livingston and his surety. http://www.tba.org/tba_files/TCA/livingstonwil.wpd STATE OF TENNESSEE v. LARRY D. UPSHAW Court:TCA Attorneys: Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Larry D. Upshaw. Paul G. Summers, Attorney General & Reporter; Peter M. Coughlan, Assistant Attorney General; and Robert L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Larry D. Upshaw, was convicted of second degree murder. The trial court imposed a sentence of 38 years in the Department of Correction. The sole issue on appeal is whether the evidence was sufficient to support his conviction for second degree murder. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCA/upshawlarryd.wpd DAVID MELVIN YORK and wife, MARILYN YORK v. VULCAN MATERIALS CO., v. TRANSCONTINENTAL INSURANCE COMPANY Court:TCA Attorneys: Craig R. Allen and John M. Hull, Chattanooga, Tennessee, for Appellant. Tom Williams and William H. Webb, Chattanooga, for Appellee. Judge: FRANKS First Paragraph: Contractor sought recovery from subcontractor's insurance carrier for moneys paid to a third party who had sued contractor and subcontractor in tort. The Trial Court ordered recovery under the policy. Insurance Company appealed. We affirm. http://www.tba.org/tba_files/TCA/yorkd.wpd TRACY LAMAR BELLE, SR. v. STATE OF TENNESSEE Court:TCCA Attorneys: Tracy Lamar Belle, Sr., pro se. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; Randy Nichols, District Attorney General; Robert L. Jolley, Jr., and John Gill, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Tracy Lamar Belle, Sr., appeals the denial of post-conviction relief contending that his right to due process has been violated by the application of the statute of limitations. Because the notice of appeal was not timely filed and because "the interest of justice" does not require the waiver of a timely notice, this appeal is dismissed. See Tenn. R. App. P. 4(a). http://www.tba.org/tba_files/TCCA/belletracyl.wpd STATE OF TENNESSEE v. JOHN ROBERT BENTON Court:TCCA Attorneys: Edward C. Miller, District Public Defender; and Susanna Thomas, Assistant Public Defender, Newport, Tennessee, for the appellant, John Robert Benton. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and Ronald C. Newcomb, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The defendant, John Robert Benton, pled guilty in the Cocke County Criminal Court to burglary, Tenn. Code Ann. S 39-14-402(a)(1), and vandalism, Tenn. Code Ann. S 39-14-408, both Class D felonies. He also pled guilty to theft of property less than five hundred dollars ($500), a Class A misdemeanor. Thereafter, the trial court sentenced Defendant as a Range I standard offender to terms of four years for each of the felony convictions and eleven months and twenty-nine days for the misdemeanor offense. On appeal, Defendant raises the following issues: (1) whether the trial court erred by failing to apply an appropriate mitigating factor and by improperly enhancing Defendant's sentences for his felony convictions, and (2) whether the trial court erred when it failed to address the criteria set forth in Tenn. Code Ann. S 40-35-103 concerning alternative sentencing. After a review of the record, we affirm the judgment of the trial court as modified. http://www.tba.org/tba_files/TCCA/bentonjr.wpd STATE OF TENNESSEE v. JERRY FLOYD CALDWELL Court:TCCA Attorneys: John Philip Parsons, Cookeville, Tennessee, for the appellant, Jerry Floyd Caldwell. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; and John A. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: After trial, a Putnam County jury found Defendant guilty of the unlawful possession of a controlled substance, to wit: cocaine over .5 grams, for resale, driving under the influence of an intoxicant, the unlawful possession of drug paraphernalia, and evading arrest. Further, the jury determined Defendant should pay fines of $100,000, $2,500, $2,500, and $1,500 for each respective offense. Subject to a sentencing agreement, the trial court imposed a sentence of nine (9) years on the cocaine offense and 11 months and 29 days for each misdemeanor. The trial court ordered the sentences to be served concurrently and imposed judgment for the fines in accordance with the verdict of the jury. Defendant presents two appellate issues: (1) Whether there is sufficient evidence to convict Defendant of sale of cocaine over 0.5 grams, driving under the influence and possession of drug paraphernalia?; and (2) Whether Defendant's fines are excessive? After a review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/caldwelljf.wpd STATE OF TENNESSEE v. ANTHONY REID Court:TCCA Attorneys: William J. Brown, Cleveland, Tennessee, for the appellant, Anthony Reid. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Jerry Estes, District Attorney General; Carl Petty, Assistant District Attorney General; and Steven Crump, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The defendant, Anthony Reid, was convicted by a Bradley County jury of first degree felony murder and especially aggravated robbery, Class A felonies, aggravated robbery, a Class B felony, attempted aggravated robbery, a Class C felony, and evading arrest, a Class E felony. Thereafter, the trial court sentenced Defendant to life imprisonment for his first degree murder conviction, twenty-five years for his especially aggravated robbery conviction, ten years for his aggravated robbery conviction, six years for his attempted aggravated robbery conviction, and two years for evading arrest. The trial court further ordered Defendant's sentence for life imprisonment to be served consecutively to his other four sentences, which were ordered to be served concurrently with each other, for an effective sentence of life plus twenty-five years. On appeal, Defendant contends that his convictions cannot stand because the State failed to comply with the mandatory procedures concerning proper presentation and filing of the indictment in his case as required by statute, and the trial court erred by refusing Defendant's request for a mistrial after the State improperly solicited testimony concerning the fact that Defendant invoked his right to remain silent upon arrest. Defendant also alleges that the trial court erred by imposing consecutive sentences. Following a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/reida.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. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! 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