August 17,2001, 2001 Volume 7 — Number 151 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 10 New Opinion(s) from the Tennessee Court of Appeals 10 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 KENNETH L. BONNER v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Kenneth L. Bonner, Mountain City, Tennessee, Pro se. Paul G. Summers, Attorney General, Michael Moore, Solicitor General, Pamela S. Lorch, Assistant Attorney General, for the appellee, Tennessee Department of Correction. Judge: COTTRELL First Paragraph: The petitioner contends that the trial court erred in dismissing his petition regarding the Department of Correction's calculation of his release eligibility date. An adjustment of the release eligibility date, made subsequent to the filing of this appeal, has rendered most of the petitioner's arguments moot. As to the remaining issue, we affirm the dismissal of the petition because we agree with the trial court that it lacked jurisdiction to consider the petition. http://www.tba.org/tba_files/TCA/bonnerkenneth.wpd SUZANNE W. GIBSON, ET AL v. JAMES E. PROKELL Court:TCA Attorneys: Scott B. Peatross, Memphis, for Appellant Felix H. Bean, III, Memphis, for Appellee Judge: HIGHERS First Paragraph: This is the fourth time that an aspect of this domestic dispute has come before this court. Both parties appeal and raise numerous issues, primarily involving child support and visitation. For the reasons set forth herein, we affirm in part, reverse in part, and remand to the court below for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/gibsonsuzanne.wpd FARMER CONCURRING http://www.tba.org/tba_files/TCA/gibsonsuzannecon.wpd JOE LOUIS GRANT v. SERVICE TRANSPORT, INC. Court:TCA Attorneys: Garrett M. Estep, Memphis, for Appellant, Service Transport, Inc. No Brief filed for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a negligence claim filed by the Appellee against the Appellant in the Circuit Court of Shelby County. The Appellant filed a motion for summary judgment or, in the alternative, to dismiss for failure to state a claim. The trial court denied the Appellant's motion. The Appellant filed a motion for permission to file an interlocutory appeal. The Appellee filed an order of voluntary dismissal before the Appellant's motion for permission to file an interlocutory appeal could be heard. The Appellant appeals, arguing that the order of voluntary dismissal deprived it of the right to seek appellate review of the trial court's denial of its motion for summary judgment or, in the alternative, to dismiss for failure to state a claim. For the reasons stated herein, we affirm the trial court's decision. http://www.tba.org/tba_files/TCA/grantjoelouis.wpd MR. & MRS. WOO-JUN KI, Individually and as parents and next of kin of JONG-DO KI, Deceased v. STATE OF TENNESSEE Court:TCA Attorneys: Paul G. Summers, Attorney General & Reporter, Michael E. Moore, Solicitor General, Kimberly J. Dean, Deputy Attorney General, Nashville, for Appellant William D. Leader, Jr., Barbara Hawley Smith, Nashville, for Appellees Judge: HIGHERS First Paragraph: This appeal arises from a tragic fire on the campus of the University of Tennessee at Martin, in which Jong-Do Ki lost his life. Jong-Do Ki's parents, Mr. and Mrs. Woo-Jun Ki, filed suit against the state of Tennessee. The Claims Commissioner found that the State was negligent in that it failed to provide the minimum fire safety requirements mandated by the fire codes it had adopted. The Claims Commissioner also found that the Kis were entitled to recover damages for the wrongful death of their son pursuant to section 20-5-113 of the Tennessee Code. Additionally, the Claims Commissioner found that the Kis were entitled to recover the damages they suffered as a result of Jong-Do Ki's death - the pecuniary value of Jong-Do Ki's life. Because we hold that Jong-Do Ki is the only claimant in this case under section 9-8-307(e) of the Tennessee Code, we reverse in part, and we remand to the Claims Commission for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/kiwoojun.wpd PARKS PROPERTIES, et al. v. MAURY COUNTY, et al. Court:TCA Attorneys: George Dean, Nashville, Tennessee, for the appellants, Maury County and Judy Langsdon. Robert Holloway, Jr., Columbia, Tennessee, for the appellees, Parks Properties and Columbia Warehouses, Inc. Judge: KOCH First Paragraph: This appeal involves a dispute between Maury County and the developers of a commercial warehouse project. The developers purchased two large metal warehouses based on their understanding that the Director of Community Development and the Maury County Regional Planning Commission had effectively agreed to waive the Southern Standard Building Code's requirement that buildings have automatic sprinkler systems. After the Director of Community Development declined to issue a building permit because the plans did not include a sprinkler system, the developers filed suit in the Circuit Court for Maury County seeking to compel the county to issue a building permit and to recover damages under 42 U.S.C. S 1983 (1994). Following a bench trial, the trial court concluded that Maury County and its Director of Community Development had violated the developers' substantive due process rights and awarded them $445,152.55 in damages and $2,772.80 in discretionary costs. On this appeal, Maury County and its Director of Community Development assert that the trial court erred by concluding (1) that they had violated the developers' substantive due process rights, (2) that the director was not entitled to qualified immunity, and (3) that their actions proximately caused the developers' claimed damages. We have determined that the trial court erred as a matter of law when it concluded that Maury County and its Director of Community Development violated the developers' property interests protectable by substantive due process. Accordingly, we reverse the judgment and remand the case to the trial court with directions that it be dismissed. http://www.tba.org/tba_files/TCA/parksproperties.wpd LINDA G. POPER, by Husband and Conservator, THOMAS C. POPER, et al. v. JOSEPH E. ROLLINS, et al. Court:TCA Attorneys: Berry Cooper, Memphis, Tennessee, for the appellant, Thomas C. Poper. Nathan W. Kellum, Memphis, Tennessee, for the appellee, Farmers Mutual Insurance Exchange. Melanie M. Stewart, Memphis, Tennessee, for the appellee, Joseph E. Rollins. Judge: LILLARD First Paragraph: This is an uninsured motorist insurance case. The plaintiff's wife died as a result of injuries suffered in an automobile accident involving multiple vehicles. The husband sued several defendants for wrongful death. He settled out of court with all but one defendant. The single remaining defendant had only $10,000 in liability insurance coverage. The insurance company of the remaining defendant offered to settle for the full policy limit. The husband had an uninsured motorist insurance policy with $100,000 in coverage, and he sued his uninsured motorist insurance carrier for damages beyond the policy limits of the remaining defendant's insurance. The uninsured motorist insurance carrier refused, asserting that the husband had collected more than the $100,000 uninsured motorist policy limit from the other defendants who had settled with the husband previously. The trial court granted summary judgment to the insurer. On appeal, we affirm, finding that, under Tennessee Code Annotated S 56-7-1201(d), the uninsured motorist insurance carrier is entitled to offset the amounts collected from the defendants who had previously settled. http://www.tba.org/tba_files/TCA/poperlg.wpd DUNCAN E. RAGSDALE, et ux. v. THE CITY OF MEMPHIS, et al. Court:TCA Attorneys: Leo Bearman, Jr.; Elizabeth E. Chance; Dedrick Brittenum, Jr.; Thomas C. Quinlen, Memphis, For Appellant, Shelby County, Tennessee Allan J. Wade, Memphis, For Appellant, City of Memphis J. N. Raines; Oscar C. Carr, III; Jonathan C. Hancock, Memphis, For Appellant, Hoops, L.P. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Janet M. Kleinfelter, Nashville, for Appellant, State of Tennessee Lyle Reid; John Knox Walkup; Thomas R. Dyer; Stephen J. Zralek, Memphis, for Amicus Curiae, Memphis Chamber of Commerce Duncan E. Ragsdale, Memphis, For Appellees Judge: CRAWFORD First Paragraph: Two taxpayers sued the county, city, and a professional basketball franchise seeking a declaratory judgment that the actions of the city and county to procure and provide financing for a new arena and the agreements made in connection therewith, all in an effort to relocate the franchise to Memphis, violates art. II, S 29 of the Tennessee Constitution because it constitutes a giving or lending of credit of the city and county to a private entity and that the proposed expenditures are not for a public purpose. Defendants filed a motion, pursuant to Tenn.R.Civ.P. 12.02 (6), to dismiss the complaint for failure to state a claim or cause of action upon which relief can be granted and also contested standing of the plaintiffs to maintain the action. The trial court denied the motion to dismiss and declared that the expenditures financed by the city and county were not for a public purpose and that the expenditures were in violation of art. II, S 29 of the Tennessee Constitution requiring a referendum election. The trial court enjoined defendants from proceeding further with the plans and agreements for the relocation and the proposed furnishing of expenditures in connection therewith. Defendants have appealed. We affirm in part, reverse and remand. http://www.tba.org/tba_files/TCA/ragsdaledun.wpd WILLIAM H. ROBERTS, M.D., et al. v. S. LANE BICKNELL, M.D., et al. Court:TCA Attorneys: Oscar C. Carr, III, Memphis, For Appellant, Rosemary Roberts Thomas H. Rainey, Marty R. Phillips; Jackson, For Appellees, S. Lane Bicknell, M.D., Harvey C. Harmon, M.D., Roy Appleton, M.D. and The Jackson Clinic Professional Association Judge: CRAWFORD First Paragraph: In this medical malpractice case, patient and wife sued physicians and their professional association for damages resulting from defendants' negligence, deviation from applicable standard of care, and lack of informed consent. The trial court granted defendants a partial summary judgment for all claims concerning incidents that occurred more than one year prior to the date suit was filed, as barred by the statute of limitations. Subsequently, the trial court granted summary judgment on the merits as to all remaining claims. Plaintiff appeals. We affirm. http://www.tba.org/tba_files/TCA/robertswil.wpd VANN R. STIFFLER, et al. v. THE KROGER COMPANY Court:TCA Attorneys: Betty Ann Milligan and Mildred L. Sabbatini, Memphis, Tennessee, for the appellant, The Kroger Company. R. Linley Richter, Jr., Memphis, Tennessee, for the appellees, Vann R. Stiffler and Donald Stiffler. Judge: FARMER First Paragraph: This is a premise liability action arising from an incident wherein Mrs. Stiffler was struck in the back by shopping carts, knocked to the floor, and sustained injuries as a result of the fall. At trial, the jury awarded Mrs. Stiffler $75,000 and awarded $5,000 to Mr. Stiffler on his loss of consortium claim. Kroger filed a motion to set aside the verdict, for a new trial, or, alternatively, for remittitur. The trial court denied Kroger's motion, and this appeal ensued. We affirm. http://www.tba.org/tba_files/TCA/stifflervannr.wpd THE UNIVERSITY OF TENNESSEE OF CHATTANOOGA v. KAREN FARROW and HARRIET WHITE, CONSOLIDATED WITH SARAH SHARP v. THE UNIVERSITY OF TENNESSEE and JOYCE MERRYMAN v. THE UNIVERSITY OF TENNESSEE Court:TCA Attorneys: Samuel W. Brown and Arthur F. Knight, III, Knoxville, Tennessee, for Appellants, Sarah Sharp and Joyce Merryman. Pamela R. O'Dwyer and Randall D. Larramore, Chattanooga, Tennessee, for Appellees, Karen Farrow and Harriet White. Alan M. Parker, Deputy General Counsel, The University of Tennessee, Knoxville, Tennessee, for Appellee The University of Tennessee. Judge: FRANKS First Paragraph: Rule 9, T.R.A.P. Appeals granted on the issue of whether the parties are entitled to a jury in claims brought under the Tennessee Human Rights Act, Tennessee Code Annotated S4-21-101 et seq. We hold the parties have the right to a jury trial. Tenn. R. App. R.9 Appeals; Judgments of the Chancery Court of Knox County are reversed, and the Judgment of the Chancery Court of Hamilton County is affirmed. http://www.tba.org/tba_files/TCA/unoftn.wpd MICHAEL CARLTON BAILEY v. STATE OF TENNESSEE Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for appellant, Michael Carlton Bailey. Paul G. Summers, Attorney General & Reporter; Clinton J. Morgan, Assistant Attorney General; Dan Alsobrooks, District Attorney General, for appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Michael Carlton Bailey, appeals from the trial court's denial of his petition for post- conviction relief. On appeal, the appellant challenges the trial court's determination that (1) he received the effective assistance of counsel, and (2) that he was not denied due process by the alleged violation of Tennessee Rule of Evidence 615 by two State witnesses. http://www.tba.org/tba_files/TCCA/baileymichael.wpd STATE OF TENNESSEE v. WILLIAM BUTLER BOLLING Court:TCCA Attorneys: Richard Alan Spivey, Kingsport, Tennessee, for the Appellant, William Butler Bolling. Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General; H. Greeley Welles, Jr., District Attorney General; Robert Montgomery, Assistant District Attorney General, for the Appellant, State of Tennessee. Judge: WITT First Paragraph: William Butler Bolling appeals from the Sullivan County Criminal Court's determination that he serve his plea bargained, effective two-year sentence for gambling crimes in the Department of Correction. He claims he should have received some form of alternative sentencing, preferably probation, for his felony conviction. Because Bolling has failed to demonstrate the error of the trial court's determination, we affirm. http://www.tba.org/tba_files/TCCA/bollingwb.wpd STATE OF TENNESSEE v. ANTHONY CARPENTER Court:TCCA Attorneys: Tony N. Brayton (on appeal), and Marvin E. Ballin (at trial), Memphis, Tennessee, for the Appellant, Anthony Carpenter. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; William L. Gibbons, District Attorney General; and Phillip Gerald Harris, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Anthony Carpenter, was convicted by a jury of second degree murder. In this appeal as of right, he asserts that the evidence was insufficient to support his conviction and that the trial court erred by sentencing him to twenty-three years incarceration. We find no error; thus, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/carpentera.wpd STATE OF TENNESSEE v. JACQUELINE HURT Court:TCCA Attorneys: Robert Little, Timothy Williams, Kendall Reeves, Mike Gatlin, attorneys for appellant, Jacqueline Hurt. Paul G. Summers, State Attorney General, Kim R. Helper, Assistant Attorney General, William L. Gibbons, District Attorney General, Karen Cook, Assistant District Attorney General, attorneys for the appellee, State of Tennessee. Judge: CLARK First Paragraph: Pursuant to a plea agreement, the appellant, Jacqueline Hurt, entered open guilty pleas to two counts of attempted first degree murder, one count of especially aggravated robbery, and one count of especially aggravated kidnaping, all Class A felonies. She received an effective sentence of seventy- five years. The appellant contends that the trial court imposed an excessive sentence because it erred in applying one enhancement factor and because it imposed consecutive sentences. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hurtj.wpd MICHAEL SHANE HYDER v. ALLEN BARGERY, WARDEN Court:TCCA Attorneys: Paul G. Summers, Attorney General, J. Ross Dyer, Assistant Attorney General, Elizabeth T. Rice, District Attorney General, James Walter Freeland, Jr., Assistant District Attorney General, for the Appellant, Allen Bargery, Warden. John E. Appman, Attorney for Appellee, Michael Shane Hyder. Judge: CLARK First Paragraph: The state has appealed from the judgment of the Circuit Court of Hardeman County granting the petitioner habeas corpus relief and finding that his two consecutive three-year sentences had expired. The state asserts that the sentences have not expired and that the petitioner is not entitled to be released from prison. Because the state has not filed an adequate record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hyderms.wpd STATE OF TENNESSEE v. MILA LOVE Court:TCCA Attorneys: Bill Anderson, Jr., Memphis, Tennessee (on appeal) and Michael W. Whitaker, Covington, Tennessee (at trial and on appeal), for the appellant, Mila Love. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussman, Assistant Attorney General; Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals her convictions for first degree felony murder and alleges four errors for our review: (1) insufficient evidence; (2) failing to take judicial notice of the definition of the word "gank;" (3) failing to determine the order of the verdicts; and (4) failing to instruct on the lesser- included offenses of felony murder. After review, we hold that sufficient evidence exists to support the defendant's convictions for first degree felony murder and that the trial court did not err in declining to take judicial notice of the definition of the word "gank." We further hold that the trial court did not err in failing to determine the order of the verdicts and there was no implied acquittal of the felony murder convictions. Finally, we hold, pursuant to the recent Tennessee Supreme Court opinion of State v. Ely, ___ S.W.3d ___ (Tenn. 2001), that the offense of first degree felony murder does have lesser-included offenses of second degree murder, reckless homicide, criminally negligent homicide, and facilitation of felony murder. Therefore, because the trial court failed to instruct on the lesser-included offense of facilitation of felony murder, we reverse the defendant's convictions and remand for a new trial. http://www.tba.org/tba_files/TCCA/lovem.wpd KEVIN TAYLOR v. STATE OF TENNESSEE Court:TCCA Attorneys: William Griffin, Nashville, Tennessee, at trial and sentencing; C. LeAnn Smith, Nashville, Tennessee, on post-conviction for appellant, Kevin Taylor. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Kimberly Haas, Assistant District Attorney, for appellee, State of Tennessee. Judge: SMITH First Paragraph: A jury found the petitioner guilty of felony murder and attempted especially aggravated robbery. For these offenses he received sentences of life and ten years respectively, which were set to run concurrently. The petitioner unsuccessfully pursued a direct appeal. See State v. Kevin Taylor, No. 01C01-9707-CR-00263, 1998 WL 849324 at *1 (Tenn. Crim. App. at Nashville, Dec. 9, 1998). Following his unsuccessful direct appeal, the petitioner then filed for post-conviction relief. He was subsequently appointed counsel, and this attorney filed a "Supplemental Petition for Post-Conviction Relief" alleging ineffective assistance of counsel and the deprivation of the petitioner's right to due process. Following an evidentiary hearing on these matters, the trial court found that the petition did not merit relief. The petitioner now appeals this denial maintaining that his trial counsel provided ineffective assistance by failing to subpoena and introduce alleged telephone records; to interview and/or call certain potential witnesses; and to properly investigate and cross-examine two State witnesses. After reviewing the record and applicable case law, we find that these claims lack merit and, therefore, affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/taylorkevin.wpd STATE OF TENNESSEE v. TIMOTHY TILLERY Court:TCCA Attorneys: Mack Garner, Maryville, Tennessee, for the Appellant, Timothy Tillery. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Edward P. Bailey, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Timothy Tillery, appeals as of right from the revocation of his probation. On appeal, he argues (1) that the trial court erred by refusing to dismiss the probation revocation proceeding because his right to a speedy trial was violated and (2) that the trial court erred by revoking his probation. We find no error; thus, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/tillery.wpd STATE OF TENNESSEE v. DANIEL WADE WILSON Court:TCCA Attorneys: Stephen M. Wallace, District Public Defender; William A. Kennedy, Assistant Public Defender, for the appellant, Daniel Wade Wilson. Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; Joseph E. Perrin, Assistant District Attorney; Barry P. Staubus, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The Defendant, Daniel Wade Wilson, appeals as of right his convictions for second degree murder, first degree felony murder and especially aggravated robbery in the Sullivan County Criminal Court. The trial court merged the second degree murder conviction into the felony murder conviction, and the jury sentenced the Defendant to life imprisonment for the felony murder. The trial court sentenced the Defendant to twenty-three (23) years for the especially aggravated robbery conviction. The sentences were ordered to run consecutively. The Defendant raises the following four issues in this appeal: 1) whether the trial court erred in failing to charge all applicable lesser-included offenses; 2) whether the trial court erred in failing to instruct the jury on the natural and probable consequences rule; 3) whether the evidence was sufficient to sustain Defendant's convictions for first degree felony murder and especially aggravated robbery; and 4) whether the trial court erred in sentencing the Defendant. The judgment of the trial court is hereby affirmed in part and reversed in part, and remanded to the trial court for a new trial on the felony murder charge in Count II and the especially aggravated robbery charge in Count III of the indictment. The case is further remanded for sentencing on the second degree murder conviction in Count I of the indictment. http://www.tba.org/tba_files/TCCA/wilsondw.wpd STATE OF TENNESSEE v. RICHARD WOOLS Court:TCCA Attorneys: David M. Livingston, Brownsville, Tennessee, for the appellant, Richard Wools. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Clayburn L. Peeples, District Attorney General; and Edward L. Hardister, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant appeals his conviction at a bench trial for the offense of cruelty to animals. The trial court sentenced him to eleven months and twenty-nine days with all but ten days suspended. He raises the following issues for our review: (1) whether the evidence was sufficient to support the conviction; (2) whether the trial court erroneously admitted evidence outside the facts alleged in the charging instrument; (3) whether the trial court erroneously allowed three witnesses to give opinion testimony; and (4) whether the trial court erred in failing to suspend the entire sentence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/woolsr.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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