August 23, 2001 Volume 7 — Number 155 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):   03 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 00 New Opinion(s) from the Tennessee Court of Appeals 07 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 CORA B. CANTRELL, et al. v. KNOX COUNTY BOARD OF EDUCATION, et al. Court:TSC Attorneys: Michael W. Moyers, Knox County Law Director and Mary Ann Stackhouse, Deputy Law Director, Knoxville, Tennessee, for the appellants, Knox County Board of Education and Allen Morgan, Superintendent of the Knox County Department of Public Instruction. Herbert S. Moncier, Knoxville, Tennessee, for the appellees, Cora B. Cantrell, Joan I. Dozier, Sandra C. Barnard, Margaret H. Schaefer, and Mildred A. Morrell. Judge: DROWOTA First Paragraph: The issue in this appeal is whether non-certified, non-tenured teacher aides have under state law a reasonable expectation of continued employment beyond the term of their written contracts such that they are entitled to back pay and benefits beyond the expiration of their contract period. We conclude that teacher aides do not have a reasonable expectation of continued employment. Accordingly, the judgment of the Court of Appeals is reversed, and the judgment of the trial court is reinstated. http://www.tba.org/tba_files/TSC/corabcantrell.wpd MATTIE L. SCALES v. CITY OF OAK RIDGE, ET AL. Court:TSC Attorneys: John T. Batson, Jr., Knoxville, Tennessee, for the appellants, The City of Oak Ridge, The City of Oak Ridge Board of Education, and TML Risk Management Pool. Roger L. Ridenour, Clinton, Tennessee, for the appellee, Mattie L. Scales. Paul G. Summers, Attorney General and Reporter, E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellee, Second Injury Fund. Judge: DROWOTA First Paragraph: This workers' compensation case presents several questions involving the calculation of an employee's benefits award and its apportionment between her employer and the Second Injury Fund, including a question involving the social security offset provision of Tennessee Code Annotated 50- 6-207(4)(A)(i). The judgments of the trial court and the Special Workers' Compensation Appeals Panel involve numerous findings and holdings, discussed in detail below. After considering both judgments, and the applicable statutes and case law, we hold that: the employee sustained two separate injuries, each of which is separately compensable; the first injury, to her arms, is not subject to the 260 week cap in section 207(4)(A)(i) because it is an injury to a scheduled member; neither of the two awards is subject to the social security offset provision; the Second Injury Fund is responsible for 65% of 260 weeks of benefits for the permanent total disability award after the employer fully satisfies its obligation of 35% of that award; and the employer is responsible for the full amount of benefits relating to the employee's first injury. The effect of these holdings is to affirm in part and reverse in part the decision of the Panel. http://www.tba.org/tba_files/TSC/mattielscales.wpd CHARMAINE WEST, et al. v. MEDIA GENERAL CONVERGENCE, INC, et al. Court:TSC Attorneys: Samuel L. Felker, Donald L. Zachary, and Rebecca S. Kell, Nashville, Tennessee, for the petitioner, Media General Convergence, Inc. and Media General Convergence, Inc. d/b/a WDEF-TV 12. Anita B. Hardeman and Harry F. Burnette, Chattanooga, Tennessee, for the respondents Charmaine West and First Alternative Probation and Counseling, Inc. Judge: DROWOTA First Paragraph: Pursuant to Rule 23 of the Rules of the Supreme Court of Tennessee, this Court accepted certification of the following question from the United States District Court for the Eastern District of Tennessee: Do the courts of Tennessee recognize the tort of false light invasion of privacy, and if so, what are the parameters and elements of that tort? We conclude that Tennessee recognizes the tort of false light invasion of privacy and that Section 652E of the Restatement (Second) of Torts (1977), as modified by our discussion below, is an accurate statement of the elements of this tort in Tennessee. We further conclude that the parameters of the doctrine are illustrated by the Comments to Sections 652A and 652E-I, and by this Court's decision in Memphis Publishing Co. v. Nichols, 569 S.W.2d 412 (Tenn. 1978), as it applies to the First Amendment standard for private plaintiffs and the pleading of damages. http://www.tba.org/tba_files/TSC/westcharmaine.wpd STATE OF TENNESSEE v. KELLY ANN HANCOCK Court:TCCA ORDER: The appellant, Kelly A. Hancock appeals as a matter of right from her conviction for driving under the influence. She contends the evidence is insufficient to support the jury's verdict of guilt. After a review of the evidence we affirm the conviction pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. http://www.tba.org/tba_files/TCCA/hancockkelly_ord.wpd CHARLES HAYES v. STATE OF TENNESSEE Court:TCCA Attorneys: Everett Willialms, JJ., joined. Hershell D. Koger, Pulaski, Tennessee, for appellant, Charles Hayes. Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General; Mike McCowen, District Attorney General; and Weakley E. Barnard, Assistant District Attorney, for appellee, State of Tennessee. Judge: SMITH First Paragraph: A Marshall County grand jury indicted the petitioner on two counts of aggravated burglary, two counts of theft, and one count of evading arrest. On October 29, 1997, the petitioner entered an open plea of guilt, reserving the determination of the length and manner of sentencing for the trial court. Following a sentencing hearing, the trial court sentenced the petitioner to a total of thirty-four years as a Range III persistent offender. In making its sentencing determination, the trial court ran several of the offenses consecutively. On direct appeal, the petitioner challenged his sentence as excessive. State v. Hayes, No. 01C01-9804-CC-00176, 1999 WL 126650 at *1 (Tenn. Crim. App. at Nashville, March 11, 1999). Finding that the record supported the trial court's sentence determination, this Court affirmed the trial court's judgment. Id. at *2. The petitioner then unsuccessfully applied for permission to appeal the trial court's sentence determination to the Tennessee Supreme Court. Thereafter, the petitioner filed a pro se petition for post-conviction relief, alleging that he received ineffective assistance of counsel and that the trial court judge who imposed his sentence should have recused himself due to his personal knowledge of the facts of and victims in the case. The court appointed counsel for the petitioner, and the petitioner's newly appointed counsel then filed an amendment to the earlier petition, alleging ineffective assistance of counsel by both trial and appellate counsel. The trial court conducted an evidentiary hearing on the petition and dismissed the petition for post-conviction relief. The petitioner now appeals the trial court's dismissal of his petition, alleging that he received both ineffective assistance of trial and appellate counsel and that the trial judge erred in denying his motion for recusal. After the reviewing the record and applicable case law, we find these issues to be without merit and therefore affirm the trial court's denial of the petition for post-conviction relief. http://www.tba.org/tba_files/TCCA/hayescharles.wpd STATE OF TENNESSEE v. PATRICK KOSSOW Court:TCCA Attorneys: Dan T. Bryant, McMinnville, Tennessee, for the appellant, Patrick Kossow. Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney General; and Dale Potter, District Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: Defendant entered pleas of guilty to the rape of a child in Counts 1, 6, and 7 of the indictment and in Count 3, a plea of guilty to aggravated sexual battery. At the conclusion of a sentencing hearing, the trial court imposed sentences of 24 years for each count of rape of a child and 12 years for the offense of aggravated sexual battery. The trial court ordered that the sentences be served consecutively, resulting in a sentence of 84 years. On direct appeal, Defendant asserts that the trial court erred in imposing an inappropriate sentence on each count and erred in imposing consecutive sentencing on all charges. After a review of the record, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/kossowp.wpd STATE OF TENNESSEE v. DARON MILLER Court:TCCA Attorneys: James F. Logan, Jr., Cleveland, Tennessee, for the appellant, Daron Miller. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Stephen D. Crump, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Daron Miller, pled guilty to three counts of sexual battery by an authority figure, a Class C felony. See Tenn. Code Ann. S 39-13-527. The trial court imposed three concurrent Range I sentences of three years. In this appeal of right, the defendant contends that he was improperly denied probation. The judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/millerdaron.wpd CHARLES EDWARD MITCHELL v. STATE OF TENNESSEE Court:TCCA Attorneys: Albert J. Newman, Jr. (on appeal) and Susan E. Shipley (at trial), Knoxville, Tennessee, for the appellant, Charles Edward Mitchell. Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Robert L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the denial of post-conviction relief on his second degree murder conviction, arguing that the post-conviction court erred in finding that he had effective assistance of trial counsel. Following his entry of a plea of guilty to second degree murder, the petitioner filed a petition for post-conviction relief, alleging ineffective assistance of counsel. Specifically, he alleged that trial counsel was ineffective for failing to thoroughly investigate and prepare his case, and that were it not for the deficiencies in counsel's representation, he would not have entered his plea of guilty. At the conclusion of an evidentiary hearing, the post-conviction court dismissed the petition, finding that the petitioner had failed to offer any proof to support his allegations. After a careful review, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/mitchellce.wpd STATE OF TENNESSEE v. STELLA RODIFER Court:TCCA Attorneys: Richard A. Spivey, Kingsport, Tennessee (on appeal), and Roger Day, Johnson City, Tennessee (at trial), for the appellant, Stella Rodifer. Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General; and Steve Finney, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Stella Rodifer, was convicted of forgery, a felony; six counts of worthless checks under $500.00, misdemeanors; and one count of worthless checks over $1,000.00, a felony. The defendant was sentenced to consecutive terms of two and four years, respectively, on each of the felonies. The trial court imposed concurrent sentences of 11 months and 29 days on each misdemeanor, two of which were ordered to be served consecutively for an effective sentence of seven years, 11 months, and 27 days. The trial court granted probation on the misdemeanors and sentenced the defendant to a Community Corrections program on the felonies. Four months later, the trial court revoked the alternative sentences and ordered the defendant to serve four years for forgery; eight years for felony worthless checks; and 11 months and 29 days (two consecutive) for each of the six counts of worthless checks, for an effective sentence of 13 years, 11 months, and 27 days. In this appeal of right, the defendant argues that the trial court erred by revoking her alternative sentences and by imposing lengthier, consecutive sentences. The judgments are affirmed. http://www.tba.org/tba_files/TCCA/rodiferstella.wpd STATE OF TENNESSEE v. BOBBY GENE TUCKER Court:TCCA Attorneys: David Neal Brady, District Public Defender, and Cynthia S. Lyons, Assistant Public Defender, for the appellant, Bobby Gene Tucker. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William Edward Gibson, District Attorney General; and Anthony J. Craighead, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Bobby Gene Tucker, appeals from the revocation of his probation received for his conviction for driving under the influence of an intoxicant (DUI) after having served fifteen days in confinement. He contends (1) that the revocation warrant and affidavit are void, thereby voiding his probation revocation and (2) that the trial court abused its discretion in sentencing him to serve the maximum term of eleven months, twenty-nine days with credit for time served. We affirm the trial court. http://www.tba.org/tba_files/TCCA/tuckerbg.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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