July 25, 2001 Volume 7 — Number135 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 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 06 New Opinion(s) from the Tennessee Court of Appeals 08 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 STATE OF TENNESSEE v. GUY WILLIAM RUSH Court:TSC Attorneys: Mark D. Harris (at trial and on appeal) and Richard A. Spivey (at trial), Kingsport, Tennessee, for the appellant, Guy William Rush. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Daryl J. Brand, Associate Solicitor General, Erik W. Daab, Assistant Attorney General, H. Greeley Wells, Jr., District Attorney General, and Edward E. Wilson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: Guy William Rush was indicted and tried for one count of attempt to commit second degree murder and one count of aggravated assault. On the attempted second degree murder count, the trial court instructed the jury on a number of lesser-included offenses, including attempted voluntary manslaughter; intentional or knowing aggravated assault accompanied by serious bodily injury; reckless aggravated assault accompanied by serious bodily injury; and assault accompanied by bodily injury. The jury convicted Rush of the lesser-included offense of reckless aggravated assault. Rush appealed, challenging the trial court's instructions on lesser-included offenses, and the Court of Criminal Appeals affirmed. Applying the lesser-included offense test established in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), we conclude that neither reckless aggravated assault nor felony reckless endangerment are lesser-included offenses of attempted second degree murder. We conclude, however, that the offense of misdemeanor reckless endangerment is a lesser-included offense of attempted second degree murder and that the trial court erred in failing to so instruct the jury. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the cause for a new trial in accordance with this opinion. http://www.tba.org/tba_files/TSC/rushg.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0723.wpd LINDA MARIE CHAMBERLAIN FRYE v. RONNIE CHARLES FRYE Court:TCA Attorneys: Donald K. Vowell, Knoxville, Tennessee, for the Appellant Ronnie Charles Frye. Herbert S. Moncier and Ursula Bailey, Knoxville, Tennessee for Appellee Herbert S. Moncier. Judge: SWINEY First Paragraph: This suit was filed in July of 1999 to enforce two judgments in favor of attorney Herbert S. Moncier ("Plaintiff") against Ronnie Charles Frye ("Defendant"). One judgment was entered in 1985 and the other in 1986. The judgments were for attorneys fees and/or costs in an underlying divorce action, which the Trial Court taxed as "child support" against the Defendant. Defendant filed a motion to dismiss claiming that the applicable ten year statute of limitations period to enforce both judgments had expired. After denying the motion to dismiss, the Trial Court granted summary judgment to Plaintiff. On appeal, we must decide whether the ten year statute of limitations period in Tenn. Code Ann. S 28-3-110(2) applies in this case and, if so, has it run. We conclude that the ten year statute of limitations period found in Tenn. Code Ann. S 28-3-110(2) is applicable and that it began to run when the respective judgments were entered. Because this action was not timely filed, we reverse the grant of summary judgment to Plaintiff, and reverse the denial of Defendant's motion to dismiss. http://www.tba.org/tba_files/TCA/fryelm.wpd GATLINBURG AIRPORT AUTHORITY, INC. v. ROSS B. SUMMITT, et al. Court:TCA Attorneys: Ronald E. Sharp, Sevierville, Tennessee, for the appellant, Gatlinburg Airport Authority, Inc. Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellees, Ross B. Summitt, et al., Billy M. Grinstead, et al., and Nillah G. Cox, et al. Appellees Ray Fox and wife, Mae Fox, did not file an appellate brief. Judge: GODDARD First Paragraph: An electrical transmission line owned and maintained by TVA is located about 1000 feet from the eastern end of the runway at the airport owned and operated by the Gatlinburg Airport Authority [GAA]. The transmission line was constructed before the Airport was established. The two have coexisted without mishap, and no official publication, State or Federal, warns of any danger to aircraft posed by the transmission line. However, because of the transmission line, 360 feet of the runway cannot be used by aircraft landing or taking off. The GAA, after 35 years, concluded that the transmission line was an airport hazard. TVA is immune from suit, but agreed to relocate its transmission line if GAA would acquire the necessary easement over lands of the defendants. The trial court dismissed the eminent domain action, holding that (1) the plaintiffs should seek relief against TVA if the transmission line is hazardous, (2) the line is not hazardous, (3) there is no necessity to remove the line, (4) the attempted condemnation is arbitrary and capricious. The judgment is vacated. http://www.tba.org/tba_files/TCA/gatlinburgairport.wpd DALE CONRAD McQUISTON v. THOMAS WARD, SHERIFF OF PERRY COUNTY Court:TCA Attorneys: Dale Conrad McQuiston, Pro se. James I. Pentecost, Jackson, Tennessee, for the appellee, Thomas Ward, Sheriff of Perry County. Judge: FARMER First Paragraph: Dale Conrad McQuiston filed a pleading entitled "Writ of Replevin" wherein he sought to recover $1,000 cash and various items of personal property which were alleged to have been seized by the defendant Thomas Ward, Sheriff of Perry County, Tennessee. The trial court granted Defendant's motion for summary judgment. We affirm on the basis that Mr. McQuiston's suit was barred by the three year statute of limitations set forth in section 28-3-105 of the Tennessee Code Annotated. http://www.tba.org/tba_files/TCA/mcquistondale.wpd DENNIS PLEMONS, et al. v. LARRY MOSES, et al. Court:TCA Attorneys: Larry D. Cantrell, Athens, Tennessee, for the Appellants Larry Moses and Carol Moses. Clifford E. Wilson, Madisonville, Tennessee, for the Appellees Dennis Plemons and Alice Plemons. Judge: SWINEY First Paragraph: Dennis Plemons ("Plaintiff") leased the Crossroads Market to Larry Moses ("Defendant") pursuant to a five-year lease. Prior to the expiration of the lease, Plaintiff found new tenants willing to pay significantly more to lease the property. Plaintiff informed Defendant about the new potential tenants and gave Defendant the opportunity to continue leasing the property if he would pay this higher rent. Defendant declined to lease the property for this increased amount. Plaintiff allowed Defendant to continue leasing the property until the new tenants were ready to assume possession of the property. When the new tenants were ready to assume possession, Defendant refused to vacate the premises claiming that he was a holdover tenant and entitled to possession of the property under a year-to-year tenancy after the expiration of the lease. The Circuit Court held that a new month-to- month tenancy had been created and, therefore, Plaintiff was entitled to possession. We affirm. http://www.tba.org/tba_files/TCA/plemonsd.wpd TENNESSEE MEDICAL ASSOCIATION, et al. v. TENNESSEE BOARD OF DENTISTRY, et al. Court:TCA Attorneys: Parks T. Chastain, Tisha R. Zello, Nashville, Tennessee, for the appellant, William L. Hunter, III. David L. Steed, Marc E. Overlock, Nashville, Tennessee, for the appellees, Tennessee Medical Association, Dwayne Fulks, M.D., and Stephen Pratt, M.D. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Michelle Hohnke Joss, Assistant Attorney General, for the appellee, Tennessee Board of Dentistry. Raymond G. Prince, John R. Hellinger, Nashville, Tennessee, Harvey M. Applebaum, Joan L. Kutcher, Keith A. Noreika, Washington, D.C., for the amici curiae, Tennessee Dental Association, Tennessee Society of Oral and Maxillofacial Surgeons, and American Association of Oral and Maxillofacial Surgeons. Judge: LILLARD First Paragraph: This is an appeal of an administrative decision involving the Tennessee Dental Practice Act. A licensed dentist petitioned the Tennessee Board of Dentistry to declare that he had the right under his dental license to perform various cosmetic procedures involving the face and neck, such as face lifts and nose jobs. The petition was granted and the Board of Dentistry issued a declaratory order that the petitioning dentist could perform such cosmetic procedures. The Appellees, including the Tennessee Medical Association, petitioned the Chancery Court to review the Board of Dentistry's decision. The Chancery Court reversed the Board of Dentistry's decision, finding that the Board had improperly expanded the practice of dentistry beyond what the legislature intended and that its decision was not supported by substantial and material evidence. On appeal, we affirm, finding that the Board's decision was contrary to the Dental Practice Act. http://www.tba.org/tba_files/TCA/tnmedassoc.wpd WARBINGTON CONSTRUCTION, INC. v. FRANKLIN LANDMARK, L.L.C. Court:TCA Attorneys: David K. Taylor, Nashville, TN, for Appellant Jefferson C. Orr, Christopher S. Dunn, Nashville, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal involves the vacating of an arbitration award by the court below. The trial court applied nonstatutory grounds to vacate the decision of the arbitrator. Because we decline to adopt the nonstatutory grounds for judicial review of an arbitration award under the Federal Arbitration Act, we reverse. http://www.tba.org/tba_files/TCA/warbingtonconst.wpd STATE OF TENNESSEE v. FLOYD ALLEN ANGLEA AND PHYLLIS MAE ANGLEA Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Todd R. Kelley, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Dee David Gay, Assistant District Attorney General, for the appellant, State of Tennessee. Cynthia M. Fort (on appeal), and Glenn R. Funk (at trial), Nashville, Tennessee, for the appellees, Floyd Allen Anglea and Phyllis Mae Anglea. Judge: TIPTON First Paragraph: In this felony drug possession case, the state appeals from the trial court's order suppressing as evidence all items, including marijuana, seized during a search of the defendants' home. It contends that the trial court erred in determining that the affidavit for the search warrant did not establish probable cause to warrant a search. Based upon the record before us, we are constrained to affirm the trial court. http://www.tba.org/tba_files/TCCA/angleafa.wpd STATE OF TENNESSEE v. CLARENCE BOLING Court:TCCA Attorneys: Mack Garner, District Public Defender, Maryville, Tennessee, for appellant, Clarence Boling. Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General; Mike Flynn, District Attorney General; and John Bobo, Assistant District Attorney, for appellee, State of Tennessee. Judge: SMITH First Paragraph: After waiving his right to a trial by jury, the defendant was convicted of possession of marijuana with the intent to sell or deliver. For this offense he received a sentence of two years as a Range I, standard offender. However, the trial court ordered this sentence suspended after the service of thirty days. Through this appeal the defendant alleges that the trial court erred in allowing impeachment evidence to be introduced through Officer Steve Blankenship and that the evidence is insufficient to support his having possessed the marijuana with the intent to sell or deliver it. After reviewing the record, we find that neither of these claims merit reversal and, therefore, affirm the defendant's conviction, but remand for correction of the judgment to reflect the defendant was convicted at a bench trial. http://www.tba.org/tba_files/TCCA/bolingclarence.wpd STATE OF TENNESSEE v. ALLAN PRESTON BROOKS Court:TCCA Attorneys: Jefre S. Goldtrap, Nashville, Tennessee, for appellant, Allan Preston Brooks. Paul G. Summers, Attorney General & Reporter; Glen C. Watson, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Roger Moore, Assistant District Attorney, for appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Allan Brooks, appeals from the trial court's denial of his petition for post-conviction relief. The appellant claims that he was denied effective assistance of counsel due to trial counsel's failure to (1) demand a sequestered jury, (2) object to a display used by the prosecution during cross- examination of the appellant, (3) object to the mention of the appellant's first trial, and (4) seek an interlocutory appeal of the trial court's ruling regarding the testimony of Josh Peyton, the victim's six year old son. We find that the appellant received effective assistance of counsel and that his claims to the contrary are without merit. The decision of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/brooksallan.wpd STATE OF TENNESSEE v. FRANK R. CLARK Court:TCCA Attorneys: Robert W. Newman and John P. Partin, McMinnville, Tennessee (on appeal), for the appellant, Frank R. Clark. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Clement Dale Potter, District Attorney General; and Thomas J. Minor, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant was convicted in a jury trial of driving under the influence (DUI), third offense, and of driving on a revoked license. In this appeal, the defendant contends (1) that the stop of his truck was an unreasonable seizure, (2) that the state failed to lay a proper foundation for admission of his breath test results, (3) that the breath test was invalid because it was given when he had tobacco in his mouth, and (4) that his DUI sentence to confinement to be served at one hundred percent is legally impermissible. We affirm the convictions, but we conclude that the defendant is entitled to good conduct credits. Because of discrepancies between the sentencing transcript and the judgments of conviction, we remand the case for review of the sentences and entry of corrected judgments, if necessary. http://www.tba.org/tba_files/TCCA/clarkfr.wpd THOMAS PAUL GAGNE, JR. v. STATE OF TENNESSEE Court:TCCA Attorneys: Albert J. Newman, Jr., for the Appellant, Thomas Paul Gagne, Jr. Paul G. Summers, Attorney General & Reporter; Patricia C. Kussman, Assistant Attorney General; Randall E. Nichols, District Attorney General; William H. Crabtree, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Thomas Paul Gagne, Jr. appeals the denial of his petition for post-conviction relief in which he alleged he received the ineffective assistance of counsel in his conviction proceedings, which ultimately caused him to plead guilty rather than take his case to trial. Gagne is serving an effective term of two consecutive life sentences consecutively to a prior twelve-year sentence. His petition involves his convictions upon guilty pleas for crimes of larceny, theft, aggravated burglary and two counts of felony murder. Following an evidentiary hearing, the lower court ruled that Gagne failed to establish his ineffective assistance claim. We hold that he has failed to demonstrate the error of that ruling, and we therefore affirm the lower court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/gagnetp.wpd STATE OF TENNESSEE v. ANTERRIAN JUTIKI GUNN Court:TCCA Attorneys: Paul G. Summers, Attorney General & Reporter; Lucian D. Geise, Assistant Attorney General; John Carney, District Attorney General; Joel Perry, Assistant District Attorney, for appellant, State of Tennessee. Ann Smith-Kroeger, Assistant Public Defender, for appellee, State of Tennessee. Judge: SMITH First Paragraph: The State of Tennessee appeals from the trial court grant of the defendant's, Anterrian Juitiki Gunn, motion to suppress. We reverse the trial judge's decision and remand pursuant to Tennessee Rule of Criminal Procedure 12 (e) for a determination of the essential facts necessary to determine the propriety of the trial court's granting of the defendant's motion to suppress. http://www.tba.org/tba_files/TCCA/gunnanterrian.wpd STATE OF TENNESSEE v. SAMUEL K. ROBINSON Court:TCCA Attorneys: Samuel K. Robinson, pro se. Paul G. Summers, Attorney General & Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Mike Bottoms, District Attorney General for appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant appeals from the dismissal of his post-conviction petition wherein he attacks the validity of a probation revocation proceeding. After a review of the record we affirm the decision of the trial court. http://www.tba.org/tba_files/TCCA/robinsonsamuel.wpd CLIFTON D. WALLEN v. STATE OF TENNESSEE Court:TCCA Attorneys: Kristi M. Davis, Knoxville, Tennessee, for the Appellant, Clifton D. Wallen. Paul G. Summers, Attorney General & Reporter; Patricia C. Kussman, Assistant Attorney General; C. Berkeley Bell, District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The summary dismissal of the petition for post-conviction relief is affirmed because the petitioner failed to adequately allege ineffective assistance of counsel based upon conflict of interests and the claim of incompetency to stand trial is waived. http://www.tba.org/tba_files/TCCA/wallencd.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. 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