July 31, 2001 Volume 7 — Number 139 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 08 New Opinion(s) from the Tennessee Court of Appeals 03 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. Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink STATE OF TENNESSEE v. TIMOTHY R. BOWLES Court:TSC Attorneys: Terry J. Canady, Madison, Tennessee, (on appeal) and Bill Lane, Nashville, Tennessee, (at trial) for the appellant, Timothy R. Bowles. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Kathy Morante, Deputy Attorney General, Victor S. Johnson, III, District Attorney General, and Mary Hausman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: Timothy R. Bowles was convicted of aggravated rape, attempted rape, and robbery. The Court of Criminal Appeals affirmed the convictions for the sexual offenses, but because the trial court failed to instruct the jury on the lesser-included offense of theft, the intermediate court reversed the robbery conviction. We granted the State's application for review to determine whether the trial court's failure to instruct the jury on the offense of theft constituted reversible error. We granted Bowles's application for review to decide: (1) whether the evidence is sufficient to support the conviction for aggravated rape; and (2) whether the trial court erred in failing to submit the offense of sexual battery to the jury as a lesser-included offense of either aggravated rape or attempted rape. After thorough review and due consideration, we hold that the evidence is sufficient to support the aggravated rape conviction. We further hold that any error on the part of the trial court in failing to instruct the jury regarding the lesser-included offense of sexual battery was harmless. Regarding the robbery conviction, however, we hold that the trial court's failure to instruct the jury on the lesser-included offense of theft constitutes reversible error. Accordingly, the judgment of the Court of Criminal Appeals is affirmed. http://www.tba.org/tba_files/TSC/bowlest.wpd EBBTIDE CORPORATION v. THE TRAVELERS INSURANCE COMPANY, et al. Court:TCA Attorneys: Karyn C. Bryant and John M. Scannapieco, Nashville, Tennessee, for the appellant, Willis Corroon Corporation of Tennessee. William G. McCaskill, Jr., Nashville, Tennessee, for the appellee, The Travelers Insurance Company. John B. Carlson and Robert E. Hoehn, Nashville, Tennessee, for the appellee, Ebbtide Corporation. Judge: CAIN First Paragraph: The insurance broker involved in this matter, Willis Corroon, failed to forward to Plaintiff the terms for reinstatement of Plaintiff's workers compensation policy, which terms were faxed to Willis Corroon by Travelers, the insurer. As a result, Plaintiff, Ebbtide Corp., was without insurance for several months, during which time one severe worker's compensation claim was filed and paid for by Plaintiff. The trial court determined that Tennessee Code Annotated section 56-6-147 was not applicable to Willis Corroon as an insurance broker; as such, Willis Corroon was the agent of Plaintiff, the insured. Thus, Travelers fulfilled its contract with Plaintiff by properly communicating the terms for insurance reinstatement to Plaintiff's agent, Willis Corroon. Willis Corroon was found to be negligent for not forwarding these terms on to the Plaintiff and liable for all damages incurred by Plaintiff as a result of their being uninsured. The preliminary question to be determined is whether section 56-6-147 applies in this matter to make Willis Corroon the agent of the insurance company. We agree with the trial court's determination that section 56-6-147 does not apply to the facts presented in this matter and affirm the trial court's ruling. http://www.tba.org/tba_files/TCA/ebbtide3.wpd JABARI ISSA MANDELA v. JIM ROSE, et al. Court:TCA Attorneys: Jabari Issa Mandela, Henning, Tennessee, Pro Se Judge: COTTRELL First Paragraph: The trial court summarily dismissed the plaintiff pro se prisoner's complaint for lack of jurisdiction before service of process was had or response filed. Based on the record before us, we reverse. http://www.tba.org/tba_files/TCA/mandelaj.wpd MICHAEL D. MARTIN v. RODERICK SCOTT, et al. Court:TCA Attorneys: Michael D. Martin, Pikeville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General and Ashley S. Old, Assistant Attorney General, Nashville, Tennessee, for the appellees, Roderick Scott, Lt. Ed Brown, Gilbert Mathis, Gary Tittle, Flora Holland, Donal Campbell and Virginia Lewis. Judge: CAIN First Paragraph: Michael D. Martin, an incarcerated state prisoner, filed a Petition for Writ of Certiorari challenging a prison disciplinary proceeding whereby he was convicted by the Prison Disciplinary Board of burglary and sentenced to ten days punitive segregation and a $4.00 fine. The Chancellor dismissed the petition and we affirm the Chancellor. http://www.tba.org/tba_files/TCA/martinmichael.wpd DEBRA S. MCDOWELL v. ROBERT A. MCDOWELL Court:TCA Attorneys: Ernest W. Williams and Dana C. McLendon, III, Franklin, Tennessee, for the appellant, Robert A. McDowell. Richard Dance, Nashville, Tennessee, for the appellee, Debra S. McDowell. Judge: ASH First Paragraph: Mr. and Ms. McDowell were divorced by the Williamson County Circuit Court on September 15, 1986. On March 16, 2000, Ms. McDowell filed a contempt complaint against Mr. McDowell alleging that he had breached an agreement to pay his youngest daughter's private school tuition at Battle Ground Academy. A hearing was held on May 2, 2000, concerning the contempt complaint. Following the hearing, the Honorable Jeffery Bivens of the Williamson County Circuit Court took the matter under advisement. On July 28, 2000, the trial court ordered Mr. McDowell to pay his daughter's tuition until she graduated from Battle Ground Academy. This appeal soon followed. http://www.tba.org/tba_files/TCA/mcdowell2.wpd DONNA JO RUSSELL (FREEMAN), ET AL vs. JOHN ROBERT RUSSELL Court:TCA Attorneys: John R. Phillips, Jr., for the appellant, John Robert Russell. Joseph Y. Longmire, Jr., for the appellee, Donna Russell Freeman. Bryce C. Ruth, Jr., for the appellee, Carl Robert Freeman. Judge: ASH First Paragraph: On August 5, 1998, Donna Jo Russell Freeman filed a complaint for divorce against John Robert Russell. The parties entered into a Marital Dissolution Agreement ("MDA") and shortly thereafter the trial court entered a final decree of divorce on December 21, 1998. The MDA did not address the legal rights and responsibilities with regard to the two children (hereinafter referred collectively as "the minor children"). The children's biological father is Carl Robert Freeman. Donna Jo Russell and Carl Robert Freeman married on November 29, 1999. Subsequently, Carl Robert Freeman filed a petition to establish parentage of John and Josiah Russell. John Robert Russell filed a motion seeking temporary visitation rights of the minor children and a Rule 60.02 motion. The trial court denied John Robert Russell's temporary visitation rights and consolidated his Rule 60 motion with Carl Robert Freeman's parentage petition. On March 10, 2000, the Circuit Court of Sumner County granted Carl Robert Freeman's petition to establish parentage, effectively making him the father of the minor children. The trial court further denied John Robert Russell's Rule 60.02 motion. On April 24, 2000, John Robert Russell filed this appeal. http://www.tba.org/tba_files/TCA/russell2.wpd BILLY RHODES STEAGALL v. NANCY ROSE STEAGALL Court:TCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the appellant, Nancy R. Steagall. Barry B. White, Lewisburg, Tennessee, for the appellee, Billy Rhodes Steagall. Judge: KOCH First Paragraph: This appeal involves a post-divorce dispute regarding the custody of a 15-year-old boy. In August 1997, the boy's father petitioned the Chancery Court for Marshall County to change the minor's custody because of his concern that the mother's attempt to home school the boy had undermined his education and development of social skills. The mother opposed the petition and requested an increase in child support. During the June 1998 trial, the father presented evidence raising serious questions about the progress of the child's education and development of social skills, as well as other aspects of the mother's approach to parenting. The mother presented no evidence of her own. Instead, after the close of the father's proof, she asserted that the trial court could remediate the acknowledged deficiencies without changing custody. Thereafter, the parties and the court discussed at length the provisions of a proposed remedial order, and the hearing was adjourned when the parties and the court believed they had agreed on the contents of the proposed order. Before the trial court entered the proposed order, the wife took issue with a provision requiring her to enroll the child in public school. The trial court informed the parties that it had understood that both parties had agreed to send their child to public school and that it would resume the trial if its understanding was incorrect. Rather than requesting the trial court to resume the hearing, the mother filed this appeal claiming that the trial court had infringed on her constitutionally protected right to raise her child. We have determined, in accordance with Tenn. R. App. P. 36(a), that the mother is not entitled to appellate relief because she is, in part, responsible for the error and because she failed to pursue the reasonably available steps that would have nullified the harmful effect of the error. Accordingly, we affirm the judgment. http://www.tba.org/tba_files/TCA/steagallbr.wpd TERESE OVERLAND v. SWIFTY OIL COMPANY, INC. Court:TCA Attorneys: G. Thomas Nebel, Nashville, Tennessee, for the appellant, Terese Overland. Stephen K. Heard and Jennifer A. Lawrence, Nashville, Tennessee, for the appellee, Swifty Oil, Co. Inc. Judge: ASH First Paragraph: On October 22, 1997, an accident occurred involving two minors, Ms. JoNee O'Brien and Ms. Kari Ann White. As a result of the accident, Ms. White, a passenger in Ms. O'Brien's automobile sustained fatal injuries. On February 24, 1998, Ms. Terese Overland, individually and as natural mother and next of kin of Ms. White, filed a wrongful death action against Ms. O'Brien and her mother, Ms. Jackie O'Brien Woodard. On October 22, 1998, the complaint was amended to add Swifty Oil Co., Inc. as an additional party. The complaint alleged that the young minors obtained intoxicating liquors from Swifty's manager, Mark Erickson. On April 14, 1999, the complaint was amended again alleging negligent supervision on behalf of Swifty. Swifty subsequently filed a motion for summary judgment pertaining to the claims asserted by Ms. Overland on March 31, 2000. By Memorandum of Law, the trial court granted summary judgment to Swifty on all claims on May 12, 2000. An Order dismissing all claims against Swifty was entered May 18, 2000. On July 5, 2000, an Order of compromise and settlement was entered effectively dismissing all the claims against the defendants excluding Swifty. Notice of this appeal soon followed. http://www.tba.org/tba_files/TCA/swifty2.wpd TOWN OF LINDEN, et al. v. BLISS C. GARCIA, et al. Court:TCA Attorneys: Donald W. Schwendimann, Hohenwald, Tennessee, for the appellants, Town of Linden, a municipality, by and through its board of Mayor and Aldermen, Douglas Greenway, Mayor; and Billy Ward, Don Adkins, Tex Smith, Raymond Robert Warren, Sherman Vaughn, and William Clark Kurt, Aldermen; and Tex Smith, individually. Paul G. Summers, Attorney General and Reporter and Russell S. Baldwin, Assistant Attorney General, Nashville, Tennessee, for the appellees, Bliss C. Garcia, Perry County Administrator of Elections; Perry Election Commission; and the Division of Elections of the State of Tennessee Department of State. Judge: CAIN First Paragraph: This case presents an appeal from a declaratory judgment action brought by Plaintiffs/Appellants, Town of Linden and Tex Smith, to request an interpretation of the phrase "next regular election" contained in the charter for the town of Linden. The trial court held that this phrase included the next county election, being the next regularly scheduled election in the town of Linden on August 3, 2000, and also held that the town of Linden had no standing to bring a declaratory judgment action on this issue. Plaintiffs appealed both holdings. We affirm the trial court on both issues. http://www.tba.org/tba_files/TCA/townoflinden.wpd STATE OF TENNESSEE v. RAUL T. GARCIA Court:TCCA Attorneys: Michael A. Walcher, Morristown, Tennessee, for the Appellant, Raul T. Garcia. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Cecil Clayton Mills, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Greene County jury convicted the Defendant of reckless aggravated assault, a Class D felony, and the trial court sentenced the Defendant as a Range I, standard offender to four years in the Tennessee Department of Correction. The Defendant now appeals, challenging the sufficiency of the evidence and the propriety of the sentence imposed by the trial court. After a careful review of the record, we conclude that the evidence is sufficient to support the conviction and that the sentence is proper. Accordingly, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/garciart.wpd STATE OF TENNESSEE v. WILLIAM P. LIVINGSTON, JR. Court:TCCA Attorneys: Paul G. Whetstone, Morristown, Tennessee, for the appellant, William P. Livingston, Jr. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; C. Berkeley Bell, District Attorney General; W. Chris Scruggs, Assistant District Attorney General; Eric Christiansen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Hamblen County jury convicted the Defendant of three counts of obtaining prescription drugs by fraud, and the trial court sentenced him as a Range II persistent offender to six years incarceration for each count, with the sentences to be served concurrently, but consecutive to a previous conviction for which he received a twenty-one-year sentence. On appeal, the Defendant argues: (1) that he was improperly arraigned; (2) that the evidence is insufficient to support his convictions; (3) that a mistrial should have been ordered by the trial court when a witness speculated that the Defendant might have been Sheriff of Grainger County at one time; (4) that the trial court erred by failing to grant the Defendant's motion for a change of venue; (5) that the trial court should have recused itself; and (6) that the Defendant was denied a speedy trial. Finding no merit to these allegations, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/livingstonwp.wpd STATE OF TENNESSEE v. DAVID WAYNE OSBORNE Court:TCCA Attorneys: Julie A. Rice (on appeal), Knoxville, Tennessee; and Leslie Hale (at trial), Blountville, Tennessee, for the Appellant, David Wayne Osborne. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussman, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Teresa Murray-Smith, Assistant District Attorney General; for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pled nolo contendere to one count of felony child neglect, one count of possession of drug paraphernalia, one count of possession of marijuana, and two counts of public intoxication. At issue in this appeal is the sentence for felony child neglect, a Class D felony for which the Defendant received a two-year Community Corrections sentence. Subsequently, based upon a warrant alleging that the Defendant had violated the terms and conditions of his Community Corrections sentence, the trial court revoked the Defendant's Community Corrections sentence and increased his original sentence from two years to four years, to be served with the Tennessee Department of Correction. In this appeal, the Defendant argues that the trial court improperly enhanced his two-year sentence for felony child neglect to four years and that the court erred by failing to impose some form of alternative sentencing. We conclude that the trial court properly increased the length of the Defendant's sentence from two to four years and that the Defendant's prison sentence was properly imposed. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/osbornedw.wpd Constitutionality of Tenn. Code Ann. S 65-21-114 Concerning Countywide Telephone Calling Date: July 20, 2001 Opinion Number: 01-115 http://www.tba.org/tba_files/AG/OP115.pdf Claiborne County General Sessions Judge as Juvenile Center Administrator Date: July 20, 2001 Opinion Number: 01-116 http://www.tba.org/tba_files/AG/OP116.pdf Beer sales to golf course patrons away from the golf course clubhouse or restaurant Date: July 24, 2001 Opinion Number: 01-117 http://www.tba.org/tba_files/AG/OP117.pdf Restitution for Medical Services Provided to Inmates at County Jails Date: July 26, 2001 Opinion Number: 01-118 http://www.tba.org/tba_files/AG/OP118.pdf Officer Discretion in Making Felony Arrests Date: July 27, 2001 Opinion Number: 01-119 http://www.tba.org/tba_files/AG/OP119.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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