November 27, 2001 Volume 7 — Number 218 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 02 New Opinion(s) from the Tennessee Court of Criminal Appeals 04 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 STATE OF TENNESSEE v. JOHN MICHAEL BANE REVISED Court:TSC Attorneys: Joseph S. Ozment, Memphis, Tennessee, and Charles S. Kelly, Dyersburg, Tennessee, for the appellant, John Michael Bane. Michael E. Moore, Solicitor General; Amy L. Tarkington, Deputy Attorney General; William L. Gibbons, District Attorney General; and Thomas D. Henderson and Kevin R. Rardin, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: The defendant, John Michael Bane, was convicted of felony murder in the perpetration of a robbery for an offense committed in November of 1988. The jury originally imposed a sentence of death after it found that evidence of two aggravating circumstances - (1) the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind and (2) the murder was committed during the perpetration of a felony - outweighed evidence of any mitigating factors. See Tenn. Code Ann. S 39-2-203(i)(5), (7) (1982). On appeal, this Court affirmed the conviction, but remanded for a new sentencing hearing because the jury's application of the felony murder aggravating circumstance duplicated the offense of felony murder in violation of article I, section 16 of the Tennessee Constitution. See State v. Bane, 853 S.W.2d 483 (Tenn. 1993). After a new sentencing hearing, the jury again imposed a sentence of death after it found that evidence of two aggravating circumstances - (1) the murder was "especially atrocious or cruel in that it involved torture and depravity of mind" and (2) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another - outweighed evidence of any mitigating factors. See Tenn. Code Ann. S 39-2-203(i)(5), (6) (1982). http://www.tba.org/tba_files/TSC/banejm_rev.wpd STATE OF TENNESSEE v. MICHAEL JACKSON Court:TSC Attorneys: Tony N. Brayton, Memphis, Tennessee, for the appellant, Michael Jackson. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; and J. Ross Dyer, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: The defendant in this case was convicted of aggravated robbery and was sentenced to twelve years imprisonment, the maximum sentence allowed for a Range I standard offender convicted of a Class B felony. The trial court applied three enhancement factors, and the Court of Criminal Appeals affirmed two of them: (1) the defendant was a leader in the commission of an offense involving two or more criminal actors, Tenn. Code Ann. S 40-35-114(2); and (2) the defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release in the community, Tenn. Code Ann. S 40-35-114(8). In addition, the intermediate court determined that the defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if committed by an adult, Tenn. Code Ann. S 40-35-114(20). The defendant now argues that a court may only consider a juvenile record under factor (20), and consequently, the trial court improperly applied factor (8) to his juvenile probation violations. The sole issue in this case, then, is whether factor (20) is the exclusive means for using a juvenile court record to enhance sentences in subsequent adult criminal proceedings. We hold that factor (20) applies only to adjudicated delinquent acts; because juvenile probation violations do not fall within the purview of factor (20), factor (8) was therefore properly applied to enhance the defendant's sentence. Consequently, we find that a sentence of twelve years imprisonment is appropriate and supported by the preponderance of the evidence, and we affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/jacksonm.wpd HARRY T. KRADEL, et al. v. PIPER INDUSTRIES, INC., et al. Court:TSC Attorneys: Matthew L. Kurzweg, Pittsburgh, Pennsylvania, and Donald Capparella, Nashville, Tennessee, for the petitioners, Harry T. Kradel and Marilene Kradel. Arnd N. von Waldow and Wayne W. Ringeisen, Pittsburgh, Pennsylvania, and Brian Keith Jackson, Nashville, Tennessee, for the respondent, Kent Reynolds, as escrow agent on behalf of the former shareholders of Piper Industries, Inc. Judge: BARKER First Paragraph: Pursuant to Tennessee Supreme Court Rule 23, this Court accepted certification of five questions of law from the United States Court of Appeals for the Third Circuit concerning Tennessee's law of corporations. For the reasons given herein, we answer that the corporate statutes in effect before January 1, 1988, apply to determine the rights and remedies available against a corporation dissolved before that date and that section 48-1-1013(a) (repealed) applies to limit Piper's liability for post- dissolution claims. We further answer that Piper Industries, Inc. did comply with the dissolution statutes in effect before January 1, 1988, which require provisions to ensure the final distribution of corporate assets, but which do not require a corporation to establish a reserve fund for contingent claims arising more than two years after the dissolution. Finally, we answer that while the trust fund doctrine has been previously applied in Tennessee to solvent corporations, its application in this case is necessarily limited by Tennessee Code Annotated section 48-1-1013(a) (repealed). http://www.tba.org/tba_files/TSC/kradelharryt.wpd THOMAS ANDERSON, JR. v. STATE OF TENNESSEE Court:TCCA Attorneys: Judy A. Oxford, Franklin, Tennessee, for the appellant, Thomas Anderson, Jr. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The petitioner appeals the denial of post-conviction relief from his conviction for theft of property valued less than $1000 but greater than $500, a Class E felony, arguing that the post-conviction court erred in finding that he received effective assistance of trial counsel. After a careful review of the record, we conclude that the petitioner failed to meet his burden of demonstrating ineffective assistance of counsel. Accordingly, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/andersonthomas.wpd STATE OF TENNESSEE v. BENJAMIN HERNANDEZ, III Court:TCCA Attorneys: Michael H. Knowlton (at trial and on appeal) and Joseph F. Edwards (at trial), Cookeville, Tennessee, for the appellant, Benjamin Hernandez, III. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; William Edward Gibson, District Attorney General; and David A. Patterson and Benjamin W. Fann, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was indicted for premeditated first degree murder, convicted of the lesser-included offense of second degree murder, and sentenced to 25 years in the Department of Correction. In this appeal, the defendant alleges: (1) the evidence was insufficient to sustain his conviction; (2) the state failed to provide him with exculpatory evidence; (3) the state destroyed evidence, thereby depriving him of due process; and (4) the trial court erroneously failed to grant a continuance or mistrial when a witness became ill and was unavailable to testify. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hernandezb.wpd ELL student TCAP results in calculating "teacher effect" for the TVAAS Date: November 13, 2001 Opinion Number: 01-164 http://www.tba.org/tba_files/AG/OP164.pdf Confidentiality of Taxpayer Information Stated on Business License Application Date: September 15, 2001 Opinion Number: 01-165 http://www.tba.org/tba_files/AG/OP165.pdf County Authority to Regulate Nuisances Date: November 15, 2001 Opinion Number: 01-166 http://www.tba.org/tba_files/AG/OP166.pdf Authority of Governmental Entities to Audit the Metropolitan Nashville Airport Authority Date: November 20, 2001 Opinion Number: 01-167 http://www.tba.org/tba_files/AG/OP167.pdf 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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