TAM-BYTES September 2, 2003 Vol. 5, No. 35 SUPREME COURT WORKERS' COMPENSATION: Employee seeking workers' compensation benefits for mental injury due to potential exposure to HIV must demonstrate actual exposure through medically recognized channel of transmission; award of benefits for permanent disability to mental faculties is reversed when employee, despite coming in contact with blood from co-worker, did not demonstrate actual exposure to HIV virus through medically recognized channel of transmission. Guess v. Sharp Manufacturing Co. of America, 8/27/03, Nashville, Barker, unanimous, 7 pages. PROPERTY: In inverse condemnation action, governmental defendant must perform purposeful or intentional act for taking to exist. Edwards v. Hallsdale-Powell Utility District, 8/27/03, Knoxville, Holder, unanimous, 6 pages. FAMILY LAW: Substantial and material change in circumstances must be shown in order to extend, or otherwise modify, trial court's temporary, open-ended alimony award. Perry v. Perry, 8/27/03, Jackson, Holder, unanimous, 5 pages. GOVERNMENT: Imposition of monetary fine to be paid from prison trust fund account constitutes deprivation of property interest, thereby triggering due process protections; when property interest is de minimis, procedural rights can be dispensed with altogether; de minimis nature of $5 fine makes it immune from procedural due process requirements; prisoner seeking judicial review of prison disciplinary proceeding states claim for relief under common law writ of certiorari if prisoner's complaint alleges facts demonstrating that disciplinary board failed to follow Department of Correction Uniform Disciplinary Procedures and that this failure substantially prejudiced prisoner. Willis v. Tennessee Department of Correction, 8/27/03, Nashville, Barker, unanimous, 8 pages. CRIMINAL SENTENCING: Trial judge erred in requiring defendant to legitimate her daughter as condition of probation. State v. Mathes, 8/27/03, Knoxville, Holder, unanimous, 5 pages. APPEAL & ERROR: Supreme Court Rule 28, Section 9(D) is amended to set forth procedure for appealing grant or denial of delayed appeal. In re Amendment to Supreme Court Rule 28, Section 9(D), 8/25/03, Nashville, 4 pages. WORKERS' COMP PANEL WORKERS' COMPENSATION: There is no provision in Workers' Compensation Law by which employer is authorized to apply for diminution of final award based on employee's return to work after award has been paid in lump sum; statute applicable to facts of case is TCA 50-6-230, which prohibits readjustment when award of disability benefits is for six or fewer than six months; there was no mistake justifying relief under TRCP 60.02(1), despite contention of employer and its insurer that parties mistakenly believed that employee would not return to work at some time in future, when employee was not working at time court approved settlement between parties. Darnell v. Royal & SunAlliance, 6/2/03, Nashville, Loser, 6 pages, adopted and affirmed per curiam 8/26/03. COURT OF APPEALS COMMERCIAL LAW: When law firm brought suit in 2001 against former client to recover payment for services rendered from 1991 to 1998, trial court properly ruled that law firm was entitled to amount owed under contract and that suit was not barred by six-year statute of limitation; when services are to be performed over extended period of time under express or implied contract that does not fix term of employment or time when compensation is to be paid, statute of limitation begins to run only when services are fully performed or employment is otherwise terminated. Watkins, McGugin, McNeilly & Rowan PLLC v. Oni, 8/25/03, MS, Cottrell, 5 pages. PROPERTY: Grantor who mistakenly conveys portion of property by deed may assert adverse possession of that property, so long as he or she can prove that possession was at least seven years in duration and "of such a character as to leave no doubt of claim of ownership by adverse possession and to give notice to the public of the possession and the claim"; what TCA 28-2-103 allows is that if party can show exactly what portion of conveyed property he or she possessed, grantee cannot recapture possession of property, which grantor has possessed, even though grantor has no color of title; in order for grantor to get title to possessed property, he or she would have to possess it for 20 years, prescriptive period; there is no right of lateral support for land when natural condition of land has been altered through man's activities so as to create need for lateral support, where none existed in state of nature, as where owner raises his or her land above his or her neighbor's land by filling; plaintiff owes no duty to defendant in removing fill from property so long as it does not do so negligently and does not excavate into natural support of land. XI Properties Inc. v. RaceTrac Petroleum Inc., 8/27/03, MS, Shipley, 10 pages. FAMILY LAW: Trial court properly found that there has been material change of circumstances and applied proper factors in determining that it was in child's best interest to change custody from mother to father when trial court's major concern was lack of stability displayed by mother prior to trial --- mother had recently married and was seeking to relocate herself and her child to West Virginia, mother decided to remain in Tennessee between time of hearing and subsequent argument on custody issues, mother had been married twice and once divorced during young child's life, mother failed to hold steady employment, and when she was working, one position required her to work six nights per week, occasionally until 2 or 3 a.m. --- and when trial court's concern with mother's medical condition --- mother received number of different diagnoses and treatments for medical conditions, including bipolar disorder, psychiatric conditions, alcohol/drug abuse, and sexual abuse --- was not with condition itself, but with mother's failure to properly control her condition with prescribed medications. Eastman v. Eden, 8/25/03, MS, Ash, 8 pages. FAMILY LAW: In paternity case, trial court must, prospectively, comply with Rule 1240-2-4-.04 of Child Support Guidelines, and, in addition to 21% of net income, must require father, as non- custodial parent, to pay "an amount equal to the amount necessary for obligee to obtain such insurance," unless court makes necessary findings that deviation is justified; trial court did not abuse discretion in requiring father to reimburse mother for only one-half of total of $1,631 in medical expenses incurred or in requiring father to reimburse mother for only one-half of TennCare premium previously paid for child. Hickman v. Willis, 8/27/03, MS, Cain, 6 pages. FAMILY LAW: When husband owned Valleywood residence prior to marriage, wife owned McClellan residence and Arrowwood residence prior to marriage, wife sold Arrowwood residence and invested proceeds in Guthrie Court property, husband conveyed Valleywood residence to wife, and wife conveyed McClellan residence to husband, trial court correctly classified McClellan residence as husband's separate property and Valleywood residence as wife's separate property; properties were "swapped" for other and, accordingly, are rightfully viewed as "property acquired in exchange for property acquired before the marriage." Tate v. Tate, 8/25/03, WS at Nashville, Farmer, 5 pages. COURT OF CRIMINAL APPEALS EVIDENCE: In first degree murder case, trial judge erred in instructing jury that they could consider evidence related to other crimes committed by defendant --- evidence concerned attack on another individual (Brown) by defendant on night before two murders in present case --- for purpose of contextual background, i.e., to "complete the story of the crime," when it is highly unlikely that any conceptual void created by absence of attack on Brown would have impaired jury's understanding of material issues in present case; error was harmless in light of fact that evidence was admissible for purpose of proving motive under TRE 404(b); imposition of death sentence upon defendant was not disproportionate to penalty imposed in other similar crimes; three aggravating circumstances --- that defendant had previously been convicted of one or more violent felonies, that murder was especially heinous, atrocious, or cruel, and that murder was knowingly committed by defendant while committing or attempting to commit robbery or aggravated rape --- outweighed applicable mitigating circumstances to support imposition of death penalty. State v. Leach, 8/25/03, Nashville, Tipton, 27 pages. CRIMINAL PROCEDURE: Evidence did not preponderate against trial court's finding that defendant's Fourth Amendment rights were not violated by admission of letter defendant had written to his girlfriend from juvenile detention center in which he detailed sequence of events leading up to his arrest and his confession to murder of his father; expectation of privacy in jail cell is not reasonably justified; defendant's status as juvenile does not entitle him to heightened constitutional safeguards under Fourth Amendment; introduction of letter's contents did not violate defendant's right against self-incrimination when defendant voluntarily handed letter over to corrections officers in unsealed envelope. State v. Roland, 8/21/03, Knoxville, Woodall, 19 pages. EVIDENCE: In case in which defendant was convicted of conspiracy to sell or deliver cocaine, possession of cocaine with intent to sell or deliver, and selling and delivering cocaine, evidence of previous cocaine transactions involving defendant were probative to issue of defendant's intent to sell or deliver cocaine and to possess cocaine with intent to sell or deliver; dual sovereignty doctrine permits convictions in state and federal courts arising from same criminal conduct without violating double jeopardy; because facts underlying each of defendant's three convictions were not "inherently interwoven" so as to make each offense "essentially incidental" to other offenses, defendant's three convictions did not violate due process. State v. Thompson, 8/22/03, Knoxville, Ogle, 22 pages. CRIMINAL PROCEDURE: In carjacking case, trial judge properly refused to suppress evidence obtained by police during defendant's arrest when, given totality of circumstances surrounding stop of defendant's vehicle --- defendant was driving erratically in high crime area, and license plate on car was registered to different vehicle --- police officer's suspicion that some criminal activity may have been afoot was reasonable; trial judge did not abuse discretion in ruling that, if defendant chose to testify, evidence of two prior convictions --- 1991 federal conviction for armed bank robbery and 1981 conviction for bank robbery --- would be admissible for impeachment purposes when both prior convictions involved crimes of "dishonesty," and although 1981 bank robbery conviction was outside 10-year limit, it revealed continuing course of criminal conduct involving dishonesty. State v. Williams-Bey, 8/21/03, Nashville, Welles, 16 pages. CRIMINAL PROCEDURE: Trial judge properly granted defendant's motion to suppress evidence obtained as result of search of defendant's vehicle when police officer had no probable cause to initiate stop of defendant; officer had no reasonable suspicion to believe that defendant had committed traffic offense --- officer testified that he stopped defendant for "following too closely" --- when officer stated that he was initially alerted to defendant's vehicle because of its Florida license plates, and defendant testified that nose of his car did not "dive down" as result of unsafe breaking, as officer testified, but rather, he had to brake rapidly because vehicle in front of him slowed down, unexpectedly, coming almost to complete stop. State v. McCraney, 8/22/03, Jackson, Wedemeyer, 5 pages. CRIMINAL PROCEDURE: In case in which defendant was convicted of one felony count and one misdemeanor count of leaving scene of accident involving death or injury, trial judge erred in granting state's motion to amend indictment to include mens rea language of "knowingly" that transformed charge in Count 3 from misdemeanor to felony; because state amended indictment without defendant's consent and because amended indictment alleged different and broader charge than charge in original indictment, amendment was improper and invalid; since jury convicted defendant of felony which contains all elements of misdemeanor offense, jury effectively found defendant guilty of misdemeanor originally charged in Count 3 of indictment; defendant's felony conviction is reversed, and case is remanded to trial court for entry of conviction as misdemeanor. State v. Sheppard, 8/22/03, Nashville, Wedemeyer, 5 pages. SIXTH CIRCUIT COURT OF APPEALS CONSTITUTIONAL LAW: In civil rights action based on refusal of defendants (City of Cookeville and its city manager) to create hyperlink from defendants' web site to The Putnam Pit web site, material evidence supported jury's finding that The Putnam Pit did not meet city's eligibility criteria for obtaining hyperlink when jury concluded that The Putnam Pit did not promote economic welfare, commerce, and tourism of Cookeville area; in light of jury's finding, it is not necessary to address plaintiffs' contention that city violated plaintiffs' First Amendment rights by discriminating against plaintiffs solely because of their viewpoint. Putnam Pit Inc. v. City of Cookeville, 8/20/03, Cole, 13 pages, N/Pub. CRIMINAL PROCEDURE: Merely observing suspect conversing with known narcotics addicts by itself is insufficient to create reasonable suspicion; district court properly denied defendants' motions to suppress firearms found in their possession as law enforcement officers, who were executing search warrant on house and observed defendants, who were later determined to be illegal aliens, without any apparent lawful purpose, outside house to be searched, were permitted to stop and frisk defendants; in case in which search does not violate federal constitution but may have violated state constitution, appropriate remedy is civil action in state court, not evidentiary exclusion of evidence seized in federal court; exclusionary rule is judicially-created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect. United States v. Vite-Espinoza, 8/25/03, Boggs, concurrence by Clay, 25 pages, Pub. CRIMINAL PROCEDURE: Petitioner's counsel rendered deficient assistance in petitioner's murder trial that fell below objective standard of reasonableness --- at very least, counsel failed to impeach many of state witnesses with prior inconsistent statements to police and failed to adequately interview potential witnesses; in light of weak proof supporting state's case against petitioner and number of conflicting accounts of events, petitioner has satisfied prejudice prong; in petitioner's state collateral attack proceeding, Tennessee Court of Criminal Appeals merely paid lip service to Strickland's reasonable probability standard before imposing inappropriately stringent burden upon petitioner; because Tennessee Court of Criminal Appeals both applied burden of proof contrary to burden articulated in Strickland and unreasonably applied Strickland's holding to petitioner's claim, district court's grant of summary judgment to respondent dismissing habeas corpus petition is reversed. Jackson v. Holland, 8/21/03, Russell, 28 pages, N/Pub. If you would like a copy of the full text of any of these opinions, simply respond to this e-mail with your request or call us at (615) 661-0248. You may also view and download the full text of any state appellate court decision by accessing the state's web site by clicking here: http://www.tsc.state.tn.us/.