November 29, 2001 Volume 7 — Number 220 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 04 New Opinion(s) from the Tennessee Court of Appeals 01 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 STATE OF TENNESSEE v. BOBBY G. GODSEY Court:TSC Attorneys: Stephen M. Wallace, District Public Defender, Blountville, Tennessee and James T. Bowman, Johnson City, Tennessee, for the appellant/appellee, Bobby G. Godsey Paul G. Summers, Attorney General & Reporter; Michael Moore, Solicitor General; Alice B. Lustre, Assistant Attorney General; H. Greeley Wells, District Attorney General; and Barry Staubus, Assistant District Attorney General, for the appellee/appellant, State of Tennessee. Judge: DROWOTA First Paragraph: Bobby G. Godsey was convicted of first degree felony murder during the perpetration of aggravated child abuse. Following a sentencing hearing, the jury imposed a sentence of death upon finding that the single aggravating circumstance, "[t]he murder was committed against a person less than twelve (12) years of age and the defendant was eighteen (18) years of age, or older," outweighed mitigating circumstances beyond a reasonable doubt. The defendant was also convicted of aggravated child abuse, and the trial court imposed a consecutive sentence of twenty-five years for this conviction. The Court of Criminal Appeals reversed Godsey's conviction for aggravated child abuse, concluding that the General Assembly did not intend to permit a separate conviction and punishment for aggravated child abuse when the defendant has been convicted of first degree felony murder during the perpetration of aggravated child abuse. The Court of Criminal Appeals affirmed Godsey's conviction for first degree murder. However, the Court of Criminal Appeals found the sentence of death comparatively disproportionate to the penalty imposed in similar cases and modified Godsey's sentence to life imprisonment without the possibility of parole. Both Godsey and the State filed applications for permission to appeal, which were granted by this Court. After carefully reviewing the record and the relevant legal authorities, we affirm that portion of the Court of Criminal Appeals' decision finding the sentence of death disproportionate and modifying the defendant's sentence to life imprisonment without the possibility of parole. We reverse that portion of the Court of Criminal Appeals' decision finding dual convictions for felony murder by aggravated child abuse and aggravated child abuse inappropriate and reinstate the defendant's separate conviction and sentence for aggravated child abuse. In all other respects, the decision of the Court of Criminal Appeals is affirmed. http://www.tba.org/tba_files/TSC/godseyb_opn.wpd BIRCH CONCURRING AND DISSENTING http://www.tba.org/tba_files/TSC/godseyb_dis.wpd MOUNCE A. JACKSON v. GENERAL MOTORS CORPORATION Court:TSC Attorneys: Charles J. Williams and John B. Carlson, Nashville, Tennessee, for the petitioner, Mounce A. Jackson. Leo Bearman, Jr., Memphis, Tennessee, Lanny B. Bridgers, and W. Randall Bassett, Atlanta, Georgia, for the respondent General Motors Corporation. Charles B. Lewis, Linda J. Hamilton Mowles, Knoxville, Tennessee, for Amicus Curiae, Product Liability Advisory Council. Dianne Elizabeth Lashmit, Knoxville, Tennessee, for Amicus Curiae, Tennessee Trial Lawyers Association. 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 Court of Appeals for the Sixth Circuit: In a products liability action under Tennessee law, may the plaintiff use the "consumer expectation test" to prove that his seatbelt/restraint system was unreasonably dangerous because it failed to conform to the safety standards expected by an ordinary consumer under the circumstances? We conclude that the consumer expectation test as defined by Tenn. Code Ann. S 29-28-102(8) is applicable to any products liability claim where the plaintiff intends to show that a manufacturer is liable for plaintiff's injuries as a result of an unreasonably dangerous product. http://www.tba.org/tba_files/TSC/jacksonm.wpd BERNICE ROTHSTEIN, et al. v. ORANGE GROVE CENTER, INC., et al. Court:TSC Attorneys: David Earl Harrison and Tonya Kennedy McIntosh Cammon, Chattanooga, Tennessee, for the appellant, Christopher D. Prater, M.D. Thomas H. Dundon and William David Bridgers, Nashville, Tennessee, for the appellees, Aaron Rothstein, Bernice Rothstein, and Lisa G. Rothstein. Samuel Richard Anderson, Chattanooga, Tennessee, for the appellee, Orange Grove Center, Inc. Judge: HOLDER First Paragraph: We granted appeal to determine 1) whether the defendants are entitled to a new trial based upon their claim that the trial court erred in admitting certain evidence from four different sources, and 2) whether the trial court erred in dismissing the plaintiffs' claim for consortium damages and, if so, the proper remedy for that error. We hold that the four evidentiary issues are without merit. The defendants therefore are not entitled to a new trial. We further hold, pursuant to our decisions in Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999), Hill v. City of Germantown, 31 S.W.3d 234 (Tenn. 2000), and Hancock v. Chattanooga-Hamilton Hospital Authority, 54 S.W.3d 234 (Tenn. 2001), that the plaintiffs may maintain a claim for loss of filial consortium. We remand this case for a trial on the issue of incidental damages, limited to loss of consortium. http://www.tba.org/tba_files/TSC/rothsteb.wpd HAROLD LEE JACKSON v. JIM ROUT, Mayor of Shelby County, et al. Court:TCA Attorneys: Harold Lee Jackson, Pro Se Donnie E. Wilson, Shelby County Attorney; Renee Allen-Walker, Senior Assistant County Attorney, For Appellees Judge: CRAWFORD First Paragraph: Citizen filed a petition against county mayor, county sheriff, and county commissioner of public records alleging that he was not furnished the records that he had requested. The trial court sustained the respondent's motion to dismiss for failure to state a claim upon which relief can be granted. Petitioner appeals. We reverse. http://www.tba.org/tba_files/TCA/jacksonharold.wpd FRANCES POWERS v. MARK POWERS TERRY, et al. Court:TCA Attorneys: M. Robin Repass, Knoxville, Tennessee, for the appellant, Frances Powers. Robert H. Green, Knoxville, Tennessee, for the appellees, Mark Powers Terry and Elizabeth T. Smith, individually and as the co-executors of the Estate of James Spencer Terry, D.Ph., Estate of James Spencer Terry, D.Ph., Union Drug Store of Harriman, Inc., and Union Drug Company. Judge: SUSANO First Paragraph: This litigation focuses on a dispute between the former wife of the late James Spencer Terry - a pharmacist - and the parties' children. Following Mr. Terry's death, his former spouse sued the children, claiming that she was the beneficial owner of Union Drug Co., a drugstore in Harriman. She based her claim on the language of the parties' marital dissolution agreement ("MDA"). Following a bench trial, the court below found that, prior to his death, Mr. Terry had sold the drugstore and that the children, as his heirs at law, were entitled to the proceeds from the sale. The trial court also found the plaintiff did not have a legal interest in the drugstore's bank account and certificates of deposit. We affirm. http://www.tba.org/tba_files/TCA/powersf.wpd S. BOWMAN REID v. EXPRESS LOGISTICS, INC. Court:TCA Attorneys: Stuart B. Breakstone, Memphis, Tennessee, for the appellant, S. Bowman Reid. T. Tarry Beasley, II, Memphis, Tennessee, for the appellee, Express Logistics, Inc. Judge: FARMER First Paragraph: This appeal involves a dispute over post-employment commissions. The defendant orally agreed to pay the plaintiff a commission of 25% on revenues the defendant received due to the plaintiff's work. When the plaintiff resigned from the defendant's company, the defendant refused to continue to pay the plaintiff those commissions. The trial court determined that the parties were without an oral or written contract regarding post-employment commissions and granted the defendant's motion for summary judgment. The plaintiff appeals on the grounds that Tennessee law requires commissions to continue post-employment, that the parties had a written contract regarding post-employment commissions, and that the parties had an oral contract regarding post-employment commissions. For the reasons below, we affirm in part, reverse in part, and remand the case to the trial court for further proceedings in accordance with this opinion. http://www.tba.org/tba_files/TCA/reidsbowman.wpd JOAN C. SCHMITT v. JAMES CHARLES SMITH Court:TCA Attorneys: James F. Schaeffer, Jr., Memphis, Tennessee, for the appellant, Joan C. Schmitt. Mitzi C. Johnson, Memphis, Tennessee, for the appellee, S. Denise McCrary. Judge: FARMER First Paragraph: This dispute arises from an action to enforce an attorney's lien in a divorce action. Appellant contends that a separate suit is required to enforce the lien, and, further, that the lien was lost through the attorney's failure to have it noted in the final judgment. Appellant also submits that the trial court erred in issuing injunctive relief without notice, hearing or bond against proceeds of marital property against which the lien was filed. We hold that the attorney's lien was lost due to failure to note it in the final judgment or by a timely Rule 59.04 motion to alter or amend the judgment. We further hold that the Rule 65.07 exception to the requirements of injunctive relief in some domestic relations cases does not apply to the case at bar, where, although the original suit was a divorce action, the issue presented for resolution is essentially based on contract. http://www.tba.org/tba_files/TCA/schmittjoanc.wpd STATE OF TENNESSEE v. ROBBIE R. BAILEY Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee, and David F. Bautista, District Public Defender, Johnson City, Tennessee, attorney for the Appellant, Robbie R. Bailey. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Steve Finney, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Robbie R. Bailey, was indicted by a Washington County Grand Jury for one count of driving under the influence, fourth offense, one count of driving on a revoked license, and two counts of vehicular assault. On December 1, 2000, Bailey pled guilty to two counts of vehicular assault and one count of driving on a revoked license. After a sentencing hearing on January 10, 2001, the trial court sentenced Bailey, as a range I standard offender, to the maximum term of four years on each count of vehicular assault and ordered that the sentences be served consecutively in the Department of Correction. On appeal, Bailey raises the following issues for our review: (1) whether the sentences imposed for vehicular assault were excessive; and (2) whether the trial court erred by denying Bailey's request for a non incarcerative alternative sentence. After review, we find no reversible error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/baileyrobbier.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! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! For the Plain Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE 3) Leave the body of the message blank For the HTML Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE HTML 3) Leave the body of the message blank UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! To STOP receiving TBALink Opinion-Flash: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: UNSUBSCRIBE 3) Leave the body of the message blank © Copyright 2001 Tennessee Bar Association