September 18, 2001 Volume 7 — Number 171 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 01 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 05 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 EUGENE L. TINDELL v. TRAVELERS INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: J. Anthony Farmer, Knoxville, Tennessee for the appellant Eugene L. Tindell. Weldon E. Patterson and Laura Bradley Myers, Knoxville, Tennessee for the appellee Travelers Insurance Company. Judge: BYERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial judge found the plaintiff had failed to show he had suffered a compensable injury and dismissed the petition. http://www.tba.org/tba_files/TSC_WCP/tindelle.opn RONALD DWAYNE CARTER v. PAULETTE D'ANNE CARTER Court:TCA Attorneys: Michael W. Edwards, Hendersonville, Tennessee, for the appellant, Paulette D'Anne Carter. James M. Hunter, Jr., Gallatin, Tennessee, for the appellee, Ronald Dwayne Carter. Judge: CAIN First Paragraph: This is an appeal by Paulette D'Anne Carter from the refusal of the trial court to set aside a default judgment and a final judgment adjudicating divorce and custody. We affirm the trial court. http://www.tba.org/tba_files/TCA/carterronald.wpd JEANNE ALICE GABEL v. TODD EDWARD GABEL Court:TCA Attorneys: Donald K. Vowell and Elizabeth K. Johnson, Knoxville, Tennessee, for the Appellant Todd Edward Gabel. J. Patrick Stapleton, Sevierville, Tennessee, for the Appellee Jeanne Alice Gabel. Judge: SWINEY First Paragraph: The Trial Court entered a default judgment against the defendant in this divorce case even though the defendant had filed an answer within the time frame set forth in Rule 12.01. We conclude that entry of the default judgment was not appropriate when the defendant timely filed an answer, and, therefore, vacate the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/gabelja.wpd JOHN E. GAINES v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: John E. Gaines, Clifton, Tennessee, Pro Se. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; and Mark A. Hudson, Senior Counsel, Nashville, Tennessee, for the appellee, Tennessee Department of Correction. Judge: CAIN First Paragraph: John E. Gaines is an inmate in the custody of the Tennessee Department of Correction and while in custody at Middle Tennessee Correctional Complex Annex was a work release inmate. He was charged with violation of T.D.O.C. policy for failure to timely appear at his job site pickup station following the workday of May 10, 2000. Upon conviction in prison disciplinary proceedings and exhaustion of appellate remedies within the Tennessee Department of Correction, he filed, in the Chancery Court for Davidson County, a petition for a writ of common law certiorari. The Chancellor sustained a motion to dismiss under T.R.C.P. 12(6) and, upon consideration of the record, we affirm the judgment of the Chancellor. http://www.tba.org/tba_files/TCA/gainesjohn.wpd DEAN KINNINGHAM v. STATE OF TENNESSEE Court:TCA Attorneys: Dean Kinningham, Whiteville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dawn Jordan, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: CAIN First Paragraph: Appellant was an inmate housed at Riverbend Maximum Security Institution, having been transferred to this secure facility after overpowering a guard and forcibly escaping confinement at Claiborne County Jail. He was convicted and sentences imposed upon him for aggravated robbery, aggravated burglary, possession of a Schedule II controlled substance for sale, possession of a handgun by convicted felon and felony escape, these sentences being imposed on August 3, 1999. Appellant was assaulted by a fellow inmate and filed claim against the State for alleged negligent custody or control of persons resulting in the inmate attack. The Claims Commission rendered summary judgment for the State and we affirm. http://www.tba.org/tba_files/TCA/kinninghamdean.wpd JAMES METZGER, et al. v. HERITAGE AUTO OUTLET, LLC, et al. Court:TCA Attorneys: Phillip C. Lawrence, Chattanooga, Tennessee, for the Appellant, Heritage Auto Outlet, LLC William J. Brown, Cleveland, Tennessee, for the Appellees, James Metzger and Carla Metzger Judge: GODDARD First Paragraph: In this Rule 9 interlocutory appeal Heritage Auto Outlet, LLC, insists the Trial Court had authority to enlarge the time for it to file responses to request for admissions, and on appeal that because service of process was defective, its responses were timely. We hold the responses were timely and remand the case for further proceedings. http://www.tba.org/tba_files/TCA/metzgerjames.wpd ERIC CORDELL PENDLETON, et al. v. JOSEPH GOWER MILLS Court:TCA Attorneys: Eric Pendleton and Ricky Flamingo Brown, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dawn Jordan, Assistant Attorney General, for the appellee, Joseph Gower Mills. Judge: KOCH First Paragraph: This appeal involves a dispute between two prisoners incarcerated at the Riverbend Maximum Security Institution and a corrections officer over the confiscation of a draft note one prisoner desired to pass to the other. One of the prisoners filed a grievance over the confiscation of his note. Before the prison's grievance procedures had been exhausted, both prisoners filed a pro se 42 U.S.C. S 1983 (1994) action in the Circuit Court for Davidson County, alleging that the corrections officer had violated his oath of office, unlawfully discriminated against them based on their race, and unlawfully interfered with their right of access to court. The trial court granted the corrections officer's motion for summary judgment based on the prisoners' failure to exhaust their remedies before filing suit. Both prisoners have appealed. We have determined that the trial court erred by dismissing the prisoners' complaint for failure to exhaust administrative remedies as required by 42 U.S.C. S 1997e(a) (1994 Supp. V 1999). However, we have also determined that the complaint of one of the prisoners is subject to dismissal on other grounds. http://www.tba.org/tba_files/TCA/pendletonec.wpd STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. ANGELA KNOWLES HUFFMAN Court:TCA Attorneys: Jonathan M. Holcomb, Rogersville, Tennessee, for the Appellant, Angela Knowles Huffman Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services Judge: GODDARD First Paragraph: Angela Knowles Huffman appeals a judgment of the Juvenile Court for Sullivan County which terminated her parental rights as to her son, L.T.H. and her daughter, R.E.T. She contends on appeal that the evidence sought to justify termination does not meet the clear and convincing test. We affirm. http://www.tba.org/tba_files/TCA/statehuffman.wpd STATE OF TENNESSEE v. ROBERT G. BEAN Court:TCCA Attorneys: Lee Ofman, Franklin, Tennessee, for the appellant, Robert G. Bean. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Lee Dryer and Derek Smith, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Robert G. Bean, challenges his conviction in the Williamson County Circuit Court of one count of driving under the influence of an intoxicant (DUI), third offense. He presents the following issues for our determination: (1) whether the trial court erred in denying the appellant's challenge for cause of prospective juror Thelma Woodard; (2) whether the trial court erred in denying the appellant's motion to suppress the State's use at trial of the videotape of the traffic stop of the appellant's vehicle; (3) whether the trial court erred in refusing to instruct the jury on adult driving while impaired as a lesser-included offense of driving under the influence; and (4) whether the trial court erred in using the appellant's 1996 conviction of DUI to enhance the appellant's sentence. Following a thorough review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/beanrg.wpd STATE OF TENNESSEE v. RONNIE D. DENSON Court:TCCA Attorneys: Sam Wallace, Sr., Nashville, Tennessee, for the appellant, Ronnie D. Denson. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams III, Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General, and Robert S. Wilson, Assistant District Attorney General, for the appellant, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant pled guilty to aggravated assault with an agreed four-year sentence, and the manner of service to be determined by the trial court. The trial court denied the defendant any alternative sentence and ordered that the defendant serve his sentence in the Department of Correction. The defendant appeals the trial court's judgment denying him an alternative sentence. After review, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/densonrd.wpd STATE OF TENNESSEE v. DOROTEO APARICIO LAZARO Court:TCCA Attorneys: Mario Ramos, Nashville, Tennessee, for the appellant, Doroteo Aparacio Lazaro. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; J. W. Michael McCown, District Attorney General; Michael Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant was convicted by a Bedford County jury of DUI, second offense, Tenn. Code Ann. S 55- 10-401, and driving while license revoked, second offense, Tenn. Code Ann. S 55-50-504, both Class A misdemeanors. Following a sentencing hearing, the trial court ordered Defendant to serve a sentence of 11 months, 29 days, with all but 90 days suspended, for the DUI conviction and a sentence of 11 months, 29 days, with all but 60 days suspended, for his conviction of driving while license revoked. The trial court further ordered that the sentences be served consecutively, for an effective sentence of 150 days confinement, and that Defendant pay a total of $3600 in fines. On appeal, Defendant raises the following issues: (1) whether the trial court erred in allowing the arresting officer to testify concerning the results of Defendant's blood alcohol test without first complying with the requirements set forth in State v. Sensing, 843 S.W.2d 412 (Tenn. 1992); (2) whether the trial court erred by considering Defendant's national origin prior to sentencing; and (3) whether the trial court erred by ordering that Defendant's sentences be served consecutively. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lazaroda.wpd STATE OF TENNESSEE v. GERALD STOVALL (CORRECTION) Court:TCCA Attorneys: Paul G. Summers, Attorney General & Reporter; R. Stephen Jobe, Assistant Attorney General; Jerry N. Estes, District Attorney General and Shari Lynn Tayloe, Assistant District Attorney for appellant, State of Tennessee. Charles M. Corn, District Public Defender and Lee E. Ledbetter, Assistant District Public Defender, for appellee, Gerald Stovall. Judge: SMITH First Paragraph: The Monroe County grand jury indicted the defendant on two counts of selling or delivering over .5 grams of cocaine. At the conclusion of a bench trial, the trial court found beyond a reasonable doubt that the defendant had sold cocaine in the alleged amounts on the dates in question. However, immediately after making this determination, the trial court sua sponte announced that it was dismissing the indictment because of a fatal wording error. Through this appeal the State contends that the dismissal was erroneous and asks that the case be remanded for sentencing. Following our review of the record and applicable caselaw, we find the State's issue to have merit and, therefore, reverse the trial court's dismissal and grant the requested remand for sentencing http://www.tba.org/tba_files/TCCA/stovallgerald.wpd STATE OF TENNESSEE v. WILLIAM A. TANSIL Court:TCCA Attorneys: John S. Colley, III, Columbia, Tennessee, for the appellant, William A. Tansil. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Lee E. Dryer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, William A. Tansil, appeals from his conviction for driving under the influence of an intoxicant (DUI), third offense, for which he received a sentence of eleven months, twenty-nine days, with all but one hundred fifty days being suspended. He contends that the trial court erred in finding him to be a third-time offender, arguing that the judgment for one of his prior convictions is void on its face. We affirm the trial court. http://www.tba.org/tba_files/TCCA/tansilwa.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! 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