November 30, 2001 Volume 7 — Number 2001 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 04 New Opinion(s) from the Tennessee Court of Appeals 07 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 KARMEN DOLOROUS LANE v. RICHARD ROLAND LANE, III Court:TCA Attorneys: D. Scott Parsley, Joshua G. Strickland, Nashville, TN, for Appellant, Karmen Dolorous Lane John J. Hollins, Nashville, TN, for Appellee, Richard Roland Lane, III Judge: TURNBULL First Paragraph: This appeal challenges an award of child support which did not include private school tuition of the minor daughter, a division of property that did not take into account alleged dissipation of assets by the husband, a child support award that did not deviate upwards from the Guidelines because of lack of visitation, and a finding of criminal contempt. Also at issue is whether the trial court erred in awarding alimony in futuro rather than rehabilitative alimony. We affirm the judgment of the trial court with respect to all issues except to hold that pursuant to the Tennessee Child Support Guidelines, private school tuition is an "extraordinary educational expense" which husband obligor must pay. http://www.tba.org/tba_files/TCA/lanekd.wpd RAYMOND JAMES MUELLER v. DENISE LORETTA MUELLER Court:TCA Attorneys: Darlene Rebowe, Nashville, Tennessee, for the appellant, Raymond James Mueller. Nathaniel H. Koenig, Nashville, Tennessee, for the appellee, Denise Loretta Mueller. Judge: CANTRELL First Paragraph: In this appeal of a divorce decree, the husband argues that the rehabilitative alimony awarded to the wife is excessive, and that his visitation schedule unnecessarily limits the time he can spend with his son. We affirm the award of rehabilitative alimony, but reduce its duration to three years. We also remand this case to the trial court for reconsideration of the visitation schedule. http://www.tba.org/tba_files/TCA/muellerrj.wpd OLD REPUBLIC SURETY COMPANY v. MORRIS ESHAGHPOUR Court:TCA Attorneys: Todd E. Panther, Nashville, Tennessee, for the appellant, Morris Eshaghpour. Melissa Kurtz, Nashville, Tennessee, for the appellee, Old Republic Surety Company. Judge: COTTRELL First Paragraph: The defendant purchased a building permit bond from the plaintiff surety company and executed an indemnity agreement to hold the surety harmless against all loss, liability and expenses the company might sustain on the bond. A claim was made against the bond regarding a home built by the defendant. The surety company notified the defendant, investigated the claim, and eventually settled with the claimant. In this lawsuit to collect under the indemnity agreement, the trial court granted summary judgment to the surety. The defendant argues that summary judgment was inappropriate because the motion was not properly supported according to the Rules of Civil Procedure and, alternatively, the issue of whether the surety acted reasonably and in good faith in settling the claim precludes summary judgment. We disagree and affirm the summary judgment on the issue of liability, but remand for proof on total damages. http://www.tba.org/tba_files/TCA/oldrepublic.wpd THOMAS STOY WHITE, III v. KATHY SUE WHITE Court:TCA Attorneys: Bruce N. Oldham, Sue Hynds Dunning, Gallatin, TN, for Appellant Michael W. Edwards, Hendersonville, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from the Appellant's filing of a Petition to Modify the Final Decree of Divorce in the Circuit Court of Sumner County. The Appellant requested a downward deviation in child support and a reduction in alimony. The Appellant also requested that he no longer be required to reimburse the Appellee for health insurance coverage. The Appellee filed a Counter-Petition requesting an upward deviation in child support. Following a trial on the Petition and Counter- Petition, the trial court entered an order reducing the Appellant's child support obligation to $1,000.00 per month. The trial court declined to modify the award of rehabilitative alimony and health insurance coverage. The Appellant appeals the decision of the Circuit Court of Sumner County setting child support at $1,000.00 per month and refusing to modify the award of rehabilitative alimony and health insurance coverage. For the reasons stated herein, we affirm in part and reverse in part the trial court's decision. http://www.tba.org/tba_files/TCA/whitethomasstoy.wpd STATE OF TENNESSEE v. A TRACT OF LAND KNOWN AS 141 BELLE FOREST CIRCLE, et al. Court:TCCA Attorneys: Robert J. Notestine, III, Nashville, Tennessee, for the appellant, Westminster Realty Company. Paul G. Summers, Attorney General and Reporter; William C. Bright, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and John Zimmerman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Westminster Realty Company, appeals an order entered by the Davidson County Criminal Court denying its claim to an interest in the proceeds from the sale of property pursuant to forfeiture proceedings. 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/belleforestcircle.wpd ROGER M. GARDNER v. STATE OF TENNESSEE Court:TCCA Attorneys: Roger M. Gardner, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; Greeley Wells, District Attorney General; and Barry P. Staubus, Assistant District Attorney, for appellee, State of Tennessee. Judge: SMITH First Paragraph: The petitioner, Roger M. Gardner, appeals the order of the Sullivan County Criminal Court denying his petition for post-conviction relief. A Sullivan County jury found the petitioner guilty of attempted aggravated kidnapping, and the trial court subsequently sentenced him to serve eight years as a Range II multiple offender. The petitioner challenged his conviction on direct appeal, and this Court affirmed his conviction. State v. Roger Morris Gardner, No. 03C01-9712-CR-00524, 1999 WL 486847, at *1 (Tenn. Crim. App. at Knoxville July 13, 1999). Subsequently, the petitioner filed for post-conviction relief, alleging ineffective assistance of counsel, prosecutorial misconduct, judicial misconduct, the trial court's lack of jurisdiction, and denial of statutory rights. The post-conviction court denied the petition, and the petitioner now brings this appeal alleging ineffective assistance of counsel. For the following reasons, we find that none of these allegations merit relief and therefore affirm the decision of the post-conviction court. http://www.tba.org/tba_files/TCCA/gardnerroger.wpd STATE OF TENNESSEE v. STEVEN LLOYD GIVENS Court:TCCA Attorneys: Dawn Deaner, Nashville, Tennessee, for the appellant, Steven Lloyd Givens. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Steven Lloyd Givens, was convicted of attempted especially aggravated kidnapping in the Criminal Court of Davidson County. After a sentencing hearing, the trial court imposed a sentence of twelve years as a Range I offender to be served in the Department of Correction. In this appeal as of right, the Defendant argues that the trial court erred in (1) denying the Defendant's motion to suppress the evidence seized during the Defendant's arrest, (2) denying the Defendant's motion to suppress the results of a show-up identification of the Defendant by the victim, (3) denying the Defendant's motion to amend the indictment, and (4) in sentencing the Defendant to the maximum sentence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/givenssl.wpd STATE OF TENNESSEE v. GALGALO B. HALAKE Court:TCCA Attorneys: Collins Hooper, (at trial & on appeal), Assistant Public Defender; R. David Baker, (at trial & on appeal), Assistant Public Defender; and Jeffrey A. DeVasher, (on appeal), Assistant Public Defender, Nashville, Tennessee, for appellant, Galgalo B. Halake. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Bret Gunn, District Attorney General, for appellee, State of Tennessee. Judge: SMITH First Paragraph: A Davidson County grand jury indicted the defendant, Galgalo B. Halake, for first-degree murder. The petit jury convicted him of that offense. The defendant filed a motion for new trial and a motion for judgment of acquittal. The trial court denied the defendant's motion for new trial, but granted the defendant's motion for judgment of acquittal by reducing the defendant's conviction to second-degree murder. Subsequently, the trial court sentenced the defendant to serve twenty-two years of incarceration. The state appeals the trial court's reduction of the conviction to second- degree murder. The defendant appeals his conviction, challenging the admission of certain testimony, the trial court's failure to charge the jury with the lesser-included offense of voluntary manslaughter, the sufficiency of the evidence, and the propriety of his sentence. We find that there is sufficient evidence to support a jury finding of guilt of first degree murder. However, because the trial court erred in allowing lay opinion testimony concerning blood spatters, we reverse the decision of the lower court and remand this case for a new trial. http://www.tba.org/tba_files/TCCA/halakegalgalo.wpd STATE OF TENNESSEE v. DEMETRIUS HOLMES Court:TCCA Attorneys: Keith E. Haas, Sevierville, Tennessee, for the Appellant, Demetrius Holmes. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Randall E. Nichols, District Attorney General; and G. Scott Green, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: A Knox County jury convicted the defendant of aggravated robbery, and the trial court sentenced him as a Range I offender to eleven years incarceration. The defendant now appeals and raises the following issues: (1) whether the trial court erred by not granting a mistrial when a detective improperly testified that the Defendant was "well known for home invasions," (2) whether the state failed to disclose fingerprint evidence in a timely fashion, and (3) whether sufficient evidence supported the defendant's conviction for aggravated robbery. Finding that the trial court erred in denying the motion to declare a mistrial, we reverse the judgment of the trial court and remand for a new trial. http://www.tba.org/tba_files/TCCA/holmesdk_opn.wpd WEDEMEYER DISSENTING http://www.tba.org/tba_files/TCCA/holmesdk_dis.wpd STATE OF TENNESSEE v. JOHN D. PASS Court:TCCA Attorneys: William C. Talman, Knoxville, Tennessee, for the appellant, John D. Pass. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Lauri Hays, Special Prosecuting Attorney; and Marsha Selecman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals from his conviction for aggravated assault and his sentence. We conclude that there was sufficient evidence to support the conviction for aggravated assault. The imposition of a six (6)-month jail term pursuant to a sentence of five (5) years in split confinement is appropriate. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/passjd.wpd STATE OF TENNESSEE v. TRACY TULLOCH Court:TCCA Attorneys: Ronald R. Reagan (at hearing) and Dennis C. Campbell (on appeal), Sevierville, Tennessee, for the appellant, Tracy Tulloch. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant entered a negotiated plea of guilty to attempted aggravated sexual battery for an agreed sentence of five years as a Range I standard offender, with the issue of alternative sentencing to be determined by the trial court. The trial court sentenced the defendant to five years incarceration. In this appeal, the defendant contends (1) the trial court erroneously sentenced the defendant without a sex offender evaluation required by Tenn. Code Ann. S 39-13-705; and (2) the trial court improperly applied sentencing enhancement factors and should have sentenced the defendant to alternative sentencing. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/tullockt.wpd PLEASE FORWARD THIS E-MAIL! 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