October 22, 2001 Volume 7 — Number 195 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 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 08 New Opinion(s) from the Tennessee Court of Appeals 06 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 SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_1022.wpd STATE OF TENNESSEE DEPARTMENT OF HUMAN SERVICES v. MICHELLE STEWART, PERSONAL REPRESENTATIVE OF THE ESTATE OF CHARLIE MAE CURREN, DECEASED Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, Pamela A. Hayden-Wood, Assistant Attorney General, Nashville, For Appellant, Tennessee Department of Human Services David A Dearolf, Nashville, For Appellee, Charlie Mae Curren Judge: CRAWFORD First Paragraph: The Department of Human Services (DHS) instituted an action in chancery court pursuant to the Tennessee Adult Protection Act, T.C.A. S 71-6-101 et seq. (1995) after receiving a report of possible abuse, neglect, or exploitation of the respondent. The court appointed counsel to represent the respondent and also appointed a guardian ad litem to represent respondent. Subsequently, the court also appointed a temporary guardian to represent the interest of the respondent. After an evidentiary hearing, the trial court found that DHS had not carried its burden of proof required by the applicable statute and had failed to properly investigate the case before proceeding with the action. The trial court also ordered that DHS proceed with the filing of a conservatorship proceeding in the probate court which DHS did. Respondent's appointed attorney, guardian ad litem, temporary guardian, and later the conservator filed motions for assessment of fees and discretionary costs against DHS. The trial court granted the motions and assessed the fees and discretionary costs against DHS. DHS has appealed. We reverse. http://www.tba.org/tba_files/TCA/currencha.wpd MICHAEL DICKERSON, et al. v. JACKIE STUART, et al. Court:TCA Attorneys: Michael L. Dickerson, Mountain City, Tennessee, Pro Se. David S. Byrd, Morristown, Tennessee, for the appellees, Jackie Stuart and Gaye Stuart. Judge: SUSANO First Paragraph: The plaintiff, a prisoner in state custody, filed a complaint pro se seeking relief against Jackie Stuart, his wife, Gaye Stuart, and one other based upon an alleged agreement to sell him real property. The trial court dismissed the complaint without a hearing for "fail[ure] to prosecute," finding that the plaintiff had refused the court's offer to present his testimony "via telephone deposition." We vacate the trial court's judgment and remand for further proceedings. http://www.tba.org/tba_files/TCA/dickersonm.wpd FREDERIC R. HARRIS, INC., v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE Court:TCA Attorneys: Peter H. Curry, Nashville, Tennessee, for Appellant Frederic R. Harris, Inc. The Department of Law of the Metropolitan Government of Nashville and Davidson County, Karl F. Dean, Director of Law, Michael B. Bligh and John L. Kennedy, Nashville, Tennessee, for Appellee, The Metropolitan Government of Nashville and Davidson County, Tennessee. Judge: FRANKS First Paragraph: Plaintiff sued for payments under contract. The Trial Court held defendant was not liable for additional payments under the contract. We affirm. http://www.tba.org/tba_files/TCA/harrisf.wpd IN RE: Z. C. G. Court:TCA Attorneys: Gary M. Williams, Hendersonville, Tennessee, for the appellant, Chadrick Jerome Goins. Bill Easterly and James B. Lewis, Nashville, Tennessee, for the appellees, Jodie Lynn Bergquist and Mark Shane Bergquist. Judge: CAIN First Paragraph: This case involves a request for termination of parental rights and adoption of a minor child. Appellees/Petitioners are the mother of the minor child at issue and her current husband. They petitioned for termination of the natural father's parental rights and for adoption by her current husband. The trial judge granted their petition finding that the father had abandoned his child by willfully failing to visit for four months preceding the filing of the petition and that termination of parental rights was in the best interest of the child. We find that the evidence did not clearly and convincingly demonstrate that the father willfully failed to visit and, thus, reverse the trial court. http://www.tba.org/tba_files/TCA/Inrezcg.wpd PEGGY J. LANE, et al. v. LUELLA SPRIGGS, et al. Court:TCA Attorneys: Douglas E. Taylor, Sevierville, Tennessee, for the appellants, Luella Spriggs and Alvin C. York. P. Richard Talley, Dandridge, Tennessee, for the appellees, Peggy J. Lane and husband, Johnny R. Lane. Judge: SUSANO First Paragraph: This case involves the validity of an unsigned warranty deed in the plaintiffs' chain of title. Following a bench trial, the court below reformed the deed to add the missing signature. The defendants appeal, arguing, among other things, that the unsigned deed is inoperative and cannot be reformed. We affirm. http://www.tba.org/tba_files/TCA/lanepr.wpd JAMES C. R. LANEY v. EVELYN B. OLDHAM Court:TCA Attorneys: Pamela R. O'Dwyer and Randall D. Larramore, Chattanooga, Tennessee, for the Appellant Evelyn B. Oldham. Phillip E. Fleenor and Jane M. Stahl, Chattanooga, Tennessee, for the Appellee James C. R. Laney. Judge: SWINEY First Paragraph: Evelyn B. Oldham ("Defendant") sold to James C. R. Laney ("Plaintiff") a house and lot located next to a Chalet owned by Defendant. Defendant granted Plaintiff an easement for use of a driveway. Plaintiff later converted his residence into a business. In 1993, the Trial Court entered an Order interpreting the easement to allow Plaintiff's use of the driveway for a "normal amount of delivery." No appeal was taken from this Order. In 2000, the Trial Court, but a different trial judge, entered another Order interpreting the 1993 Order to allow for a normal amount of business deliveries using the driveway. We conclude that the 1993 Order permits only a normal amount of deliveries consistent with a residential use. We reverse the decision of the Trial Court, and remand for further proceedings. http://www.tba.org/tba_files/TCA/laneyj.wpd DENNIS MAUK v. DEBRA PERRY, et al. Court:TCA Attorneys: Douglas T. Jenkins, Rogersville, Tennessee, for the appellants, Debra Perry, Donna Burchfield, Kim Richards, and Garnie Mauk. Phillip L. Boyd, Rogersville, Tennessee, for the appellee, Dennis Mauk, Executor of Estate of Helen Mauk. Judge: SUSANO First Paragraph: The plaintiff seeks a judicial declaration regarding the proper interpretation of a will. The trial court found a will provision leaving "real property and contents" to the decedent's son, the plaintiff Dennis Mauk, is not ambiguous and that the word "contents" includes a 27-year old mobile home on the decedent's property. The decedent's other four children appeal, contending the will is ambiguous. They argue the trial court erred in failing to consider parol evidence as to the meaning of the subject language. They further contend the trial court erred in ordering a $6,000 bequest to the appellants to be paid into court, thus making it subject to the debts of the estate. We modify the trial court's judgment to provide that the share of personal property bequeathed to each of the decedent's children should be burdened with one-fifth of the decedent's debts. In all other respects, the trial court's judgment is affirmed. http://www.tba.org/tba_files/TCA/maukd.wpd IN RE: ESTATE OF WILLIAM D. NEELY Court:TCA Attorneys: John T. Blankenship and Patricia A. Blankenship, Murfreesboro, Tennessee, for the appellant, Dorothy Ann Richardson, Executrix. William P. Nelms, Murfreesboro, Tennessee, and Susan Melton, Woodbury, Tennessee, for the appellees, Billy Barrett, Jim Barrett, Mickey Barrett, Mark Barrett, Brian Barrett and Timmy Barrett. Judge: CANTRELL First Paragraph: The trial court set aside a will that was executed shortly before the testator's death, on findings of confidential relationship, suspicious circumstances and undue influence. We affirm. http://www.tba.org/tba_files/TCA/neelywd.wpd MICHAEL V. BAILEY v. STATE OF TENNESSEE Court:TCCA Attorneys: Michael V. Bailey, Mountain City, Tennessee, Pro Se Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; Greeley Wells, District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney, for appellee, State of Tennessee. Judge: SMITH First Paragraph: A Sullivan County jury convicted the petitioner of one count of second degree murder involving the death of his son. For this offense the petitioner received a sentence of twenty years as a Range I, standard offender, and a $50,000 fine. He unsuccessfully brought a direct appeal challenging both his conviction and sentence. Subsequently, he filed a pro se post-conviction petition and was appointed counsel from the public defender's office. Following an evidentiary hearing, the trial court took this matter under advisement and later issued a detailed order dismissing the petition. Thereafter, the petitioner requested that his appointed attorney withdraw from the case and that he be allowed to bring his appeal pro se. The trial court granted this motion, and the petitioner now brings this appeal raising three issues. More specifically, he asserts that (1) the jury instructions, when viewed overall, effectively denied him "a fair trial and a reliable verdict;" (2) the State engaged in misconduct and denied him a fair trial by withholding exculpatory material; and (3) the prosecuting officer made the result of the petitioner's trial unreliable because the officer perjured himself. After reviewing these issues, we find that all have been waived and/or lack merit. We, therefore, affirm the trial court's denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/baileymichaelv.wpd STATE OF TENNESSEE v. CLARENCE N. BAIRD and CATHY M. FISHER Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Janice Bossing, Assistant District Attorney General, for the appellant, State of Tennessee. Edward L. Hiland (at hearing and on appeal) and Charles E. Sizemore (at hearing), Nashville, Tennessee, for the appellees, Clarence N. Baird and Cathy M. Fisher. Judge: RILEY First Paragraph: This is a state appeal from the dismissal of an indictment based upon a violation of mandatory joinder Rule 8(a) of the Tennessee Rules of Criminal Procedure. The defendants, Baird and Fisher, and other individuals were first indicted on July 23, 1999, for aggravated gambling promotion. The indictment alleged the illegal activity occurred from August 1998 through December 1998. On October 18, 1999, the defendants pled guilty to aggravated gambling promotion. The defendants and other individuals were again indicted for aggravated gambling promotion on March 21, 2000. This indictment alleged the illegal activity occurred from January 1999 through June 1999, which was prior to the return of the first indictment. The trial court dismissed the second indictment, finding that it violated Rule 8(a) requiring joinder. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/bairdcmfishercn.wpd STATE OF TENNESSEE v. G'DONGALAY PARLO BERRY and CHRISTOPHER DAVIS Court:TCCA Attorneys: F. Michie Gibson, Jr., Nashville, Tennessee for appellant Gdongalay Parlo Berry; John E. Herbison, Nashville, Tennessee, for appellant, Christopher Davis. Paul G. Summers, Attorney General & Reporter; Jennifer L. Smith, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Tom Thurman, Assistant District Attorney, for appellee, State of Tennessee. Judge: SMITH First Paragraph: A jury convicted the defendants of first degree murder in the shooting death of Adrian Dickerson. For this offense, the defendants received life sentences. They now appeal their convictions bringing three issues each. More specifically, G'dongalay Berry contends (1) that the trial court erred by not granting his request for a severance while allowing testimony concerning Berry's co-defendant's solicitation of a witness to commit a separate murder four months after this event; (2) that the uncorroborated testimony of accomplices is insufficient to sustain his conviction; and, similarly, (3) that the evidence presented is "insufficient, as a matter of law, for a rational trier of fact to find the defendant guilty of first degree murder." In addition, Christopher Davis alleges (1) that the trial court committed prejudicial error by allowing testimony concerning gang activity and membership; (2) that the trial court's admission of testimony regarding Davis' aforementioned solicitation to commit murder four months after this crime occurred constituted prejudicial error; and, (3) that should this court deem these alleged errors harmless individually, the cumulative effect of such mistakes deprived him of due process by making the trial fundamentally unfair. Having reviewed all of these issues and finding that none provide a basis for relief to either defendant, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/berrydavis.wpd STATE OF TENNESSEE v. MICHAEL BLACKBURN Court:TCCA Attorneys: Robert S. Peters, Winchester, Tennessee, for the appellant, Michael Blackburn. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; James Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his convictions for first degree premeditated murder, first degree felony murder, and aggravated robbery. He contends that (1) insufficient evidence exists to support his convictions; (2) the trial court erred by not allowing into evidence the guilty plea of co-defendant Dickerson; (3) the trial court erred by not allowing into evidence statements made by co-defendant Dickerson; and (4) the trial court erred in ordering consecutive sentences. After review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/blackburnm.wpd PARRISH L. JONES v. JAMES M. DAVIS, WARDEN Court:TCCA Attorneys: Parrish L. Jones, Clifton, Tennessee, Pro Se. Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General; and Michael Tabor, District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Parrish L. Jones, appeals the denial of his petition for writ of habeas corpus, claiming that his sentences are illegal and void. Because the convicting court had no jurisdiction to impose an agreed upon sentence in excess of the statutory limits, the judgment is reversed and the cause is remanded for the grant of habeas corpus relief. http://www.tba.org/tba_files/TCCA/jonesparrishl.wpd STATE OF TENNESSEE v. ALAN LEONARD SMITH Court:TCCA Attorneys: Michael W. Ritter, Oak Ridge, Tennessee, for the Appellant, Alan Leonard Smith. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; James N. Ramsey, District Attorney General; and Janice G. Hicks, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant was convicted of driving under the influence (D.U.I.) second offense, sentenced to fifty days in jail, and ordered to pay a $2,500.00 fine. The Defendant now appeals, arguing the following: (1) that there was insufficient evidence to convict him of D.U.I., (2) that the trial court erred in admitting the breath alcohol results, and (3) that the trial court erred in not granting a new trial based upon newly discovered evidence. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/smithal.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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