September 19, 2001 Volume 7 — Number 172 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 06 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 DAVID BROWN v. RUTH JOHNSON, Commissioner, Tennessee Department of Revenue Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, and Sean D. Clancy, Assistant Attorney General, for the appellant, Ruth Johnson, Commissioner, Tennessee Departiment of Revenue, State of Tennessee. Doyle F. Richardson, Tullahoma, Tennessee, for the appellee, David B. Brown. Judge: INMAN First Paragraph: Taxpayer purchased baled straw from farmers which he sold to landscapers, sales tax free. A Notice of Assessment was served on the taxpayer for the sales tax, plus penalty and interest. After payments of these amounts taxpayer filed suit for refund, challenging the assessments. The trial judge found that the sales taxes were properly assessed, but that both interest and penalty should be waived. Both parties appeal. We hold that the taxpayer is liable for the tax together with penalty and interest. http://www.tba.org/tba_files/TCA/browndavidb.wpd WALTER W. CARLEN, SR., et al. v. RONALD E. JACKSON Court:TCA Attorneys: Ellis A. Sharp and Jon M. Cope, Knoxville, Tennessee, for the appellant, Ronald E. Jackson. J. Ford Little and Luis C. Bustamante, Knoxville, Tennessee, for the appellees, Walter W. Carlen, Sr. and Linda Carlen. Judge: INMAN First Paragraph: The defendant asserted a comparative fault defense to a tort claim against him arising from his operation of a truck. He attributed fault to General Motors Corporation and Carlen Motors Inc. the manufacturer and prospective seller, respectively, of the truck. The defendant did not respond timely to a request for admission and summary judgment was entered that the defendant could not assert the affirmative defense attributing fault to General Motors and Carlen Motors Inc. http://www.tba.org/tba_files/TCA/carlenwalterw.wpd CHARLES DAVID KILLION v. JOHNNY HUDDLESTON Court:TCA Attorneys: Harry R. Cash, Chattanooga, Tennessee, for the appellant, Johnny Huddleston. Wayne Detring, Hendersonville, Tennessee, for the appellee, Charles David Killion. Judge: INMAN First Paragraph: This is an action for damages for negligent misrepresentation. The plaintiff invested $50,000.00 in Eureka Vacuum Cleaner Company at the advice and urging of the unlicensed defendant who was to receive a substantial commission. The investment was a scam. Recovery for the loss was allowed. We affirm. http://www.tba.org/tba_files/TCA/killioncd.wpd PILGRIM EMMANUAL BAPTIST CHURCH v. ALBERT BUCKINGHAM, et al. Court:TCA Attorneys: Terry R. Clayton, Nashville, Tennessee, for the appellant, Albert Buckingham. Cyrus L. Booker, Nashville, Tennessee, for the appellee, Pilgrim Emmanuel Baptist Church. Judge: INMAN First Paragraph: The parties agreed to the consolidation of two cases for trial and appellate proceedings. The plaintiffs in each case sought broad injunctive relief to correct alleged irregularities in the affairs of the church. All named parties, plaintiffs and defendants, were enjoined from disturbing or disrupting any worship service or church meeting, and certain safeguards were placed on church funds and property. Thereafter, the church moved for summary judgment which was granted, thus effectively terminating the litigation. Mr. Buckingham appeals. http://www.tba.org/tba_files/TCA/pilgrambaptistchurch.wpd DOLORES E. ROSSELLO v. MICHAEL MAGILL, Commissioner Court:TCA Attorneys: Peter Skeie, Nashville, Tennessee, for the appellant, Dolores E. Rossello. Paul G. Summers, Attorney General and Reporter; and Douglas Earl Dimond, Assistant Attorney General, for the appellee, Michael Magill, Commissioner, Tennessee Department of Labor and Workforce Development, Division of Employment Security. Judge: INMAN MEMORANDUM OPINION The judgment of the Chancery Court is affirmed pursuant to Rule 10, Rules of the Court of Appeals. The appellant was employed by a law firm as a paralegal and assigned to work for a specific attorney, Laura Stewart. She worked about two months before she was terminated. If Ms. Rossello voluntarily quit her job without good cause, she is disqualified from receiving unemployment benefits. Tenn. Code Ann. S 50-7-303(a)(1). She insists that she was fired, and hence entitled to benefits, stating that she "could no longer work under circumstances where I was being verbally and emotionally abused by Laura Stewart." The employer insists that Ms. Rossello voluntarily quit. She was initially denied benefits by the Department, which thereafter determined that she was entitled to benefits. The employer appealed to the DES Appeals Tribunal whose Referee conducted a hearing on February 24, 2000. The evidence was conflicting on the issue of whether Ms. Rossello quit her job, or was discharged for misconduct, but she conceded that she had stated to Ms. Haas, a member of the law firm, that she would not work for Laura Stewart under any circumstances. The Appeals Referee found that Ms. Rossello voluntarily quit her job, and that she was not harassed by anyone. The Board of Review affirmed the Appeals Tribunal. On petition for certiorari, the Chancery Court affirmed the Board of Review. If the decision of DEC is supported by material evidence, the Courts must affirm. Tenn. Code Ann. S 50-7-303(a)(1). Substantial and material evidence is "any relevant evidence which a reasonable mind might accept to support a rational conclusion, and which furnishes a reasonably sound basis for the action being reviewed." Frogge v. Davenport, 906 S.W.2d 920 (Tenn. Ct. App. 1995). This record reflects substantial and material evidence reinforced by a determination of credibility of the witnesses. See, Price v. Tennessee Civil Service Commission, 1997 WL 203603. (Tenn. Ct. App. 1997). The judgment is affirmed at the costs of the appellant, Dolores E. Rossello. http://www.tba.org/tba_files/TCA/rossellodolores.wpd TOMKATS CATERING, INC. v. RUTH E. JOHNSON, Commissioner of Revenue, State of Tennessee Court:TCA Attorneys: Charles A. Trost and Michael G. Stewart, Nashville, Tennessee, for the appellant, TomKats Catering, Inc. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Sean D. Clancy, Assistant Attorney General, for the appellee, Ruth E. Johnson, Commissioner of Revenue, State of Tennessee. Judge: INMAN First Paragraph: This is a sales tax case. The tax period is from December 1, 1990 through January 31, 1994. During this period TomKats, a catering business, charged its customers a fixed, per unit price for food, but provided optional services - waiters, bartender, bar backs, show chefs, valets - for an additional charge, which was billed separately. The Commissioner ruled that such optional services were a "part of the sale," and assessed a tax deficiency which TomKats paid and filed this action for a refund which was unavailing. The judgment is reversed. http://www.tba.org/tba_files/TCA/tomkatscatering.wpd STATE OF TENNESSEE v. SCOTT RAY ANDERSON Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee (on appeal); Raymond Mack Garner, District Public Defender; and Shawn G. Graham, Assistant District Public Defender (at trial), for the appellant, Scott Ray Anderson. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Michael L. Flynn, District Attorney General; and William R. Reed, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant appeals the judgment entered by the Circuit Court of Blount County revoking his community corrections sentence. The sole issue on appeal is whether the court abused its discretion in ordering the defendant to serve the remainder of his sentence in the penitentiary. After careful review, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/andersonscottr.wpd STATE OF TENNESSEE v. DANIEL PAUL BATCHELOR Court:TCCA Attorneys: Julie A. Rice (on appeal), Knoxville, Tennessee; and Richard Hughes, Assistant Public Defender (at trial), Cleveland, Tennessee, for the Appellant, Daniel Paul Batchelor. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Sandra Donaghy, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: Following a bench trial, the Defendant was convicted of hindering a secured creditor, a Class E felony. On appeal, the Defendant alleges that the evidence is insufficient to support the conviction. After a careful review of the record, we conclude that the evidence is sufficient and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/batchelordp.wpd ROGER WAYNE BRADEN v. STATE OF TENNESSEE Court:TCCA Attorneys: Roger Wayne Braden, Wartburg, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; and William H. Cox III, District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: On April 29, 1999, the petitioner's status on community corrections was revoked and he was resentenced. On May 15, 2000, he filed a pro se post-conviction relief petition. The issue is whether the petition is time-barred by the Tennessee Code Annotated section 40-30-202. Because the revocation and resentencing became final thirty days after its entry, which was May 29, 1999, as the State concedes, and we agree, the petition was timely filed. We reverse the summary dismissal of the petition and remand for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/bradenrw.wpd STATE OF TENNESSEE v. SANDRA BROWN Court:TCCA Attorneys: John B. Nisbet, III, Cookeville, Tennessee, for the appellant, Sandra Brown. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William Edward Gibson, District Attorney General; and William M. Locke, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals the judgment of the trial court revoking her probation. She raises two issues: (1) whether the evidence supported the trial court's finding that she violated the terms of her probation by committing the offense of accessory after the fact; and (2) whether the trial court had the authority to order her to continue her supervised probation pending this appeal. After a thorough review of the record, we find both issues have merit; therefore, we reverse the judgment of the trial court. http://www.tba.org/tba_files/TCCA/browns.wpd STATE OF TENNESSEE v. CHARLES R. FRANCIS Court:TCCA Attorneys: Joe H. Walker, District Public Defender; and Walter B. Johnson, II, Assistant Public Defender, for the appellant, Charles R. Francis. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; J. Scott McCluen, District Attorney General; Roger Delp, Assistant District Attorney General; and Frank Harvey, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: In an indictment returned by the Morgan County Grand Jury, Defendant, Charles R. Francis, was charged with fourth offense DUI. Count 1 of the indictment alleged that the triggering offense of DUI occurred on December 10, 1998. Count 2 of the indictment alleged that he had previously been convicted of DUI on three separate occasions in Morgan County, Tennessee. The Defendant entered a "blind plea" to DUI, fourth offense, and sentencing was submitted to the trial court for a later hearing. At the sentencing hearing, the trial court ruled that Defendant was convicted of the Class E felony of DUI, fourth offense, ordered a sentence of two (2) years, with service by split confinement of 150 days in the county jail, and the balance of the sentence to be served in the Community Corrections program. Asserting that he should have been sentenced for commission of a Class A misdemeanor DUI, fourth offense, rather than a Class E felony, Defendant has appealed. The original judgment entered by the trial court reflected conviction of a Class A misdemeanor, but the judgment was later amended to reflect conviction of a Class E felony, in accord with the trial court's ruling at the conclusion of the sentencing hearing. We affirm the amended judgment of the trial court. http://www.tba.org/tba_files/TCCA/francischarles.wpd (CORRECTED OPINION) STATE OF TENNESSEE v. TRACY GOBER Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Joseph Victor Hoffer, Assistant District Attorney General, for the appellant, State of Tennessee. Jerry Hoffer, Cleveland, Tennessee, for the appellee, Tracy Gober. Judge: WILLIAMS First Paragraph: The issue is how to compute the number of prior offenses available for consideration in determining multiple offender status pursuant to Tennessee Code Annotated section 55-10-403(a)(3). We conclude to compute the number of prior convictions available for consideration, the court must first determine whether the defendant has any prior convictions occurring within ten years of the date of the instant conviction. If so, all prior convictions shall be counted occurring within twenty years of the date of the instant conviction provided no period greater than ten years has elapsed between any two preceding prior convictions. An example is contained in the opinion. We reverse the trial court's order amending the indictment to charge third offense and reinstate the original indictment charging ninth offense driving under the influence. http://www.tba.org/tba_files/TCCA/gobert.wpd STATE OF TENNESSEE v. DAVID D. HARRIS Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Russell S. Baldwin, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Charles A. Carpenter, Assistant District Attorney General, for the appellant, State of Tennessee. Lionel R. Barrett, Jr., and Jefre S. Goldtrap, Nashville, Tennessee, for the appellee, David D. Harris. Judge: MCGEE OGLE First Paragraph: The State appeals the judgment of the Davidson County Criminal Court suspending the appellee's sentences for aggravated robbery and granting the appellee probation for a term of twenty-four years. Following a review of the record and the State's brief, we reverse the judgment of the trial court and remand this case for proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/harrisdd.wpd STATE OF TENNESSEE v. JANET LAWSON Court:TCCA Attorneys: Cynthia S. Lyons, Assistant Public Defender, Cookeville, Tennessee, for the Appellant, Janet Lawson. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William Edward Gibson, District Attorney General; and Anthony J. Craighead, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pled guilty to one count of theft over $1,000.00 and the trial court sentenced her as a Range I standard offender to three years probation. The Defendant appeals from the revocation of her probation, contending that the trial court abused its discretion by ordering her to serve the remainder of her sentence in confinement. Because we conclude that the record supports that trial court's decision to revoke the Defendant's probation, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lawsonj.wpd STATE OF TENNESSEE v. ROBERT MORROW Court:TCCA Attorneys: Edward C. Miller, District Public Defender; Susanne Bales, Assistant Public Defender (on appeal); and Edward C. Miller, Assistant Public Defender (at trial), for the Appellant, Robert Morrow. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; Alfred C. Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney General for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant entered a best-interest guilty plea in the Cocke County Criminal Court to one count of especially aggravated kidnapping, two counts of aggravated rape, and one count of criminal exposure to HIV. The trial court sentenced the defendant as a Range I standard offender to six years incarceration in the Tennessee Department of Correction for the criminal exposure to HIV conviction, as a violent offender to 24 years incarceration for the especially aggravated kidnapping conviction, as a violent offender to 24 years incarceration for one of the aggravated rape convictions, and as a multiple rapist to 24 years incarceration for the other aggravated rape conviction. The trial court ordered consecutive service of the sentences for an effective sentence of 78 years incarceration. On appeal, the defendant takes issue with the length of the sentences and the consecutive service imposed. Based upon our review, we affirm the sentences imposed. http://www.tba.org/tba_files/TCCA/morrowr.wpd STATE OF TENNESSEE v. MORRIS JASON PEPPER Court:TCCA Attorneys: John B. Nisbet, III, Cookeville, Tennessee; Donna Orr Hargrove and Andrew Jackson Dearing, III, Fayetteville, Tennessee, for the appellant, Morris Jason Pepper. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; W. Michael McCown, District Attorney General; Weakley E. Barnard and Ann L. Filer, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Morris Jason Pepper, was convicted by a jury in the Lincoln County Circuit Court of one count of first degree premeditated murder and was sentenced to life imprisonment. On appeal, the appellant raises the following issues for our review: (1) whether the evidence is sufficient to sustain his conviction; and (2) whether the trial court erred by failing to grant the appellant's motion to suppress. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/pepperm.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! 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