TBALink Opinion-Flash

January 08, 1996 -- Volume #2 -- Number #01

Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts and the TN Attorney General.

This Issue:: New Opinons From TSC : 1; New Opinons From TCA : 6; New Opinons From TCCA : 9; New Opinons From AG : Pending

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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.
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Click the URL Link at end of each Opinion Paragraph below. This option will allow you to download the original WP 6.0 document.

Jim Moore
TBALink Co-Chief Editor
Opinion-Flash

Document Name :WILLIAMS.OPN.WP6
Court :TSC

For Appellant: For Appellee:
Mark E. Stephens Charles W. Burson
District Public Defender Attorney General & Reporter
Sixth Judicial District
Eugene J. Honea
Paula R. Voss Assistant Attorney General
Assistant Public Defender Criminal Justice Division
1209 Euclid Avenue 450 James Robertson Parkway
Knoxville, TN 37921 Nashville, TN 37243-0493

Randall E. Nichols
District Attorney General

Marsha Selecman
Asst. Dist Attorney General
City-County Building
Knoxville, TN 37902

First Paragraph:

The petitioner, Lee Roy williams, appeals as of right from
the summary dismissal of his petition for post-conviction
relief. The trial court ruled that the action was barred
by the three-year statute of limitations. The only
question on appeal is whether the petitioner was improperly
denied an evidentiary hearing.

URL:http://www.tba.org/tba_files/TSC/WILLIAMS.OPN.WP6

Document Name :BURKS.OPN.WP6
Court :TCA

Mark Ledbetter, Memphis, Tennessee
Dan T. Bing, Memphis, Tennessee
Attorneys for Plaintiff/Appellant.

Joe D. Spicer,
Marc O. Dedman,
SPICER, FLYNN & RUDSTROM, Memphis, Tennessee
Attorney for Defendant/Appellee
Pride Construction Company, Inc.

First Paragraph:

Appellant, Gordon Burks, (Burks) brought this negligence
action against Appellee, Pride Construction Company, Inc.,
(Pride) and various other defendants, in the Circuit Court
of Shelby County. Pride's motion for summary judgment was
granted and, from that judgment, Burks appeals.

URL:http://www.tba.org/tba_files/TCA/BURKS.OPN.WP6

Document Name :EXPLOSIV.OPN.WP6
Court :TCA

HOWARD G. HOGAN, GRESHAM & HOGAN,
Knoxville, for Plaintiff Appellee.

RON CUNNINGHAM, FINKELSTEIN, KERN, STEINBERG & CUNNINGHAM,
Knoxville, for Defendant-Appellant.

First Paragraph:

In this action, plaintiff was awarded judgment for work
performed under a contract, and defendant has appealed,
insisting that plaintiff did not perform in accordance with
the agreement between the parties.

URL:http://www.tba.org/tba_files/TCA/EXPLOSIV.OPN.WP6

Document Name :HOOVER.OPN.WP6
Court :TCA

THOMAS V. WHITE ROGER A. HORNER
Tune, Entrekin & White P.O. Box 788
Twenty-First Floor Brentwood, TN
First American Center ATTORNEY / RESPONDENT
315 Deaderick Street /APPELLEE
ATTORNEY / PETITIONER CITY OF BRENTWOOD
/APPELLANT
JAMES D. PATERSON
GEORGE A. DEAN 306 Court Square
Parker, Lawrence, Cantrell & Dean Franklin, TN
200 Fourth Avenue, North ATTORNEY /RESPONDENT/APPELLEE
5th Floor, Noel Place WILLIAMSON COUNTY
Nashville, TN
ATTORNEY FOR PETITIONER
/APPELLANT
Herbert R. Rich
JAMES L. MURPHY III 213 Third Avenue, North
STEPHEN NUNN Nashville, TN
204 Metropolitan Courthouse ATTORNEY FOR RESPONDENT/APPELLEE
Nashville, TN PAUL JOHNSON
ATTORNEYS / RESPONDENT/APPELLEE
METRO/ BOARD OF ZONING APPEALS
METRO/ GOVERNMENT OF NASHVILLE
AND DAVIDSON COUNTY

ROBERT H. JENNINGS, JR.
JAMES R. TOMKINS
Jennings and Tomkins
Nashville, Tennessee 37219
ATTORNEYS / RESPONDENT/APPELLEE
EDWARD KNIGHT, BEVERLY KNIGHT, JAMES
PHILLIP CARTER, MARIDEE CARTER, MARIE
CARTER, WILLIAM CARTER, MARY JANE
CARTER AND STOP THE QUARRY

First Paragraph:

This is an appeal by petitioner/appellant, Hoover Inc.
("Hoover"), from an order of the chancery court affirming
the Metropolitan Board of Zoning Appeal's decision to deny
Hoover's application for a conditional use permit.

URL:http://www.tba.org/tba_files/TCA/HOOVER.OPN.WP6

Document Name :KELLER.OPN.WP6
Court :TCA

JACK KELLER
JORDAN S. KELLER
8282 Collins road
Nashville, Tennessee 37221
Pro Se Plaintiffs/Appellants

ROBERT L. SULLIVAN
MANATT, PHELPS & PHILLIPS
1233 17th AvenueSouth
Nashville, Tennessee 37212
Attorney for Defendants/Appellees

First Paragraph:

On June 28, 1994, Plaintiff Jack Keller sued the defendants
in the Davidson County Circuit Court claiming a breach of
fiduciary duty by fraudulently failing to disclose the
contents of a contract amendment signed in 1960. Jordan
Keller, to whom a part of the contract rights had been
assigned, joined his father as plaintiff.

URL:http://www.tba.org/tba_files/TCA/KELLER.OPN.WP6

Document Name :PEOPLES.OPN.WP6
Court :TCA

STEPHEN G. ANDERSON
Baker, Donelson, Bearman
& Caldwell
900 Gay Street, S.W., Suite 2200
P. O. Box 1792
Knoxville, Tennessee 37901
ATTORNEY FOR PLAINTIFF/APPELLANT

Walter W. Bussart
Barbara G. Medley
Bussart & Medley
101 West Commerce, Suite 306
Lewisburg, Tennessee 37091
ATTORNEYS FOR DEFENDANTS/APPELLEES

First Paragraph:

Plaintiff, People's Bank of Elk Valley ("People's Bank"),
appeals from the trial court's order granting summary
judgment to defendant, American Banker's Financial
Services, Inc. ("American") and dismissing People's Bank's
complaint.

URL:http://www.tba.org/tba_files/TCA/PEOPLES.OPN.WP6

Document Name :UNDERWOO.OPN.WP6
Court :TCA

SHADE T. UNDERWOOD
Northeast Correctional Center
P. O. Box 5000
Mountain City, Tennessee 37683-5000
PRO SE APPELLANT

CHARLES W. BURSON
Attorney General & Reporter

MERRILYN FEIRMAN
Assistant Attorney General
500 Charlotte Avenue
Nashville, Tennessee 37243-0491
ATTORNEYS FOR RESPONDENTS/APPELLEES

First Paragraph:

This is an appeal by petitioner/appellant, Shade T.
Underwood, Jr., from the trial court's dismissal of his
petition for declaratory judgment and violations of civil
rights. The sole issue presented by petitioner is
"[w]hether the trial court properly dismissed the petition
for want of prosecution."

URL:http://www.tba.org/tba_files/TCA/UNDERWOO.OPN.WP6

Document Name :CRASS.OPN.WP6
Court :TCCA

FOR THE APPELLANT FOR THE APPELLEE

John E. Eldridge Charles W. Burson
Ray, Farmer, Eldridge Attorney General & Reporter
& Hickman
625 S. Gay Street, # 230 Christina S. Shevalier
Knoxville, TN 37902 Assistant Attorney General 450 James Robertson Parkway
Johnny Joe Crass, Jr. Nashville, TN 37243-0943
Pro se
David E. Crockett
District Attorney General
Rte. 19 Box 99
Johnson City, TN 37801

First Paragraph:

The appellant appealed from the summary dismissal of his
petition for habeas corpus relief in which he alleged his
continued incarceration was illegal because the sentence
upon which he was being held had expired. The appellant
specifically alleges that:

URL:http://www.tba.org/tba_files/TCCA/CRASS.OPN.WP6

Document Name :FARMER.OPN.WP6
Court :TCCA

FOR THE APPELLANT: FOR THE APPELLEE:

Dale Potter Charles W. Burson
District Public Defender Attorney General and Reporter
P.O. Box 510 450 James Robertson Parkway
309 W. Morford Street Nashville, TN 37243-0493
McMinnville, TN 37110
(Trial Only) Amy L. Tarkington
Asst. Attorney General/Reporter
John E. Herbison 450 James Robertson Parkway
2016 Eighth Avenue South Nashville, TN 37243-0493
Nashville, TN 37204
(Appeal Only) William M. Locke
District Attorney General

Larry Ross
Asst. District Attorney General
P.O. Box 410
Professional Building
McMinnville, TN 37110

First Paragraph:

The appellant, Darryl Gene Farmer, appeals as of right
pursuant to Rule 3 (b) of the Tennessee Rules of Appellate
Procedure from his conviction of murder in the first degree
following a jury trial in the Circuit Court for Warren
County. The appellant was sentenced to life in prison. In
this appeal he presents five (5) issues for our review.

URL:http://www.tba.org/tba_files/TCCA/FARMER.OPN.WP6

Document Name :FITCH.OPN.WP6
Court :TCCA

FOR APPELLANT: FOR APPELLEE:

RAYMOND W. FRALEY, JR. CHARLES W. BURSON
205 E. Market Street ATTORNEY GENERAL & REPORTER
P.O. Box 572
Fayetteville, TN 37334 EUGENE J. HONEA
ASSISTANT ATTORNEY GENERAL
RICHARD McGEE 450 James Robertson Parkway
Washington Square Two Nashville, TN 37243-0485
Suite 417
222 Second Avenue, North
Nashville, TN 37201 WEAKLEY E. BARNARD
ASST. DISTRICT ATTORNEY GENERAL
Marshall County Courthouse
Lewisburg, TN 37091

First Paragraph:

A Lincoln County jury convicted Carla Jo Fitch of murder in
the first degree. The trial court approved the verdict and
imposed a sentence of life in the Tennessee State
Penitentiary for Women. Her motion for a new trial was
denied, and she has appealed to this Court. The defense
presents four main issues, of which the first three issues
have sub-issues.

URL:http://www.tba.org/tba_files/TCCA/FITCH.OPN.WP6

Document Name :FITCH.CON.WP6
Court :TCCA

Attorneys: See Opinion above

First Paragraph:

I concur with Judge Cornelius' reversal of this case, but
write separately to address other issues.

URL:http://www.tba.org/tba_files/TCCA/FITCH.CON.WP6

Document Name :FITCH.DIS.WP6
Court :TCCA

Attorneys: See Opinion above

First Paragraph:

I respectfully disagree with the conclusions my colleagues
reach regarding the question of the trial court's actions
as the thirteenth juror. I believe that the trial court's
comments reflect a proper understanding of its duties as
the thirteenth juror and that although expressing "some
reservations" about the sufficiency of the evidence
regarding the degree of homicide, it ultimately concluded
that the evidence was sufficient so as to allow it to
approve the jury's verdict. This reasoning process should
be expected to be the norm for a strongly contested, close
case, and I do not think it reflects a substantive
dissatisfaction with the verdict.

URL:http://www.tba.org/tba_files/TCCA/FITCH.DIS.WP6

Document Name :PORTER.OPN.WP6
Court :TCCA

For the Appellant: For the Appellee:

Shawn G. Graham Charles W. Burson
Assistant Public Defender Attorney General of TN
605 E. Carroll Street and
P.O. Box 260 Sharon S. Selby
Tullahoma, TN 37388 Asst Attorney General of TN
450 James Robertson Parkway
Nashville, TN 37243-0493

C. Michael Layne
District Attorney General
and
Steve Weitzman
Asst District AG
Manchester, TN 37355

First Paragraph:

The defendant, Arnold V. Porter, appeals from a jury
conviction in the Circuit Court of Coffee County for two
counts of reckless endangerment with a deadly weapon, a
Class E felony. The defendant received two two-year
sentences as a Range I, standard offender to be served
concurrently in addition to a fine of twenty-five hundred
dollars in each count. In this appeal as of right, he
presents the following issues:

URL:http://www.tba.org/tba_files/TCCA/PORTER.OPN.WP6

Document Name :SCOTT.OPN.WP6
Court :TCCA

FOR THE APPELLANT: FOR THE APPELLEE:

MARK J. FISHBURN CHARLES W. BURSON
100 Thompson Lane Attorney General and Reporter
Nashville, TN 37211
CHRISTINA S. SHEVALIER
ASSISTANT ATTORNEY GENERAL
450 James Robertson Parkway
Nashville, TN 37243-0493

VICTOR S. JOHNSON III
District Attorney General

ROE ELLEN COLEMAN
Assistant District Attorney General

ROGER D. MOORE
Assistant District Attorney General
Washington Square Building, # 350
222 Second Avenue, North
Nashville, TN 37201-1652

First Paragraph:

The defendant, Randall Scott, was convicted of especially
aggravated robbery, conspiracy to commit especially
aggravated kidnapping, especially aggravated kidnapping,
and attempted felony murder. The jury found the defendant
not guilty of conspiracy to commit especially aggravated
robbery. The trial court imposed sentences of 25, 12, 25,
and 25 years, respectively, an aggregate term of 87 years.

URL:http://www.tba.org/tba_files/TCCA/SCOTT.OPN.WP6

Document Name :SMITHGL.OPN.WP6
Court :TCCA

FOR THE APPELLANT: FOR THE APPELLEE:

CHARLES M. CORN CHARLES W. BURSON
Public Defender Attorney General & Reporter
P. O. Box 1453
Cleveland, TN 37364 DARIAN B. TAYLOR
Asst. Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0485

JERRY N. ESTES
District Attorney General
P. O. Box 647
Athens, TN 37303

First Paragraph:

The petitioner previously filed a petition for
post-conviction relief seeking to set aside his guilty plea
to second-degree burglary which was entered on October 12,
1976. This petition was dismissed by the trial court as
having been barred by the statute of limitations. This
Court remanded the matter to the trial court for the
purpose of an evidentiary hearing to determine if the
petition was in fact filed prior to the running of the
statute. Smith v. State, 873 S.W.2d 5 (Tenn. Crim. App.
1993).

URL:http://www.tba.org/tba_files/TCCA/SMITHGL.OPN.WP6

Document Name :william2.opn.WP6
Court :TCCA

For Appellant: For Appellee:

Charles W. Burson Jeffrey A. DeVasher
Attorney General & Reporter Sr Asst Public Defender

Michael E. Moore John Wiethe
Solicitor General Cynthia Burns
Assistant Public Defenders
Gordon W. Smith Nashville, Tennessee
Associate Solicitor General
Nashville, Tennessee

Roger Moore
Assistant District Attorney General
Nashville, Tennessee

First Paragraph:

We granted the State's appeal to consider whether the
defendant's federal or state constitutional right of
confrontation was violated by the admission into evidence
of surveillance photographs taken at the scene of the
robbery. The Court of Criminal Appeals decided that the
defendant's constitutional right of confrontation was
violated and that the evidence was insufficient as a matter
of law to establish guilt beyond a reasonable doubt As a
result, they reversed the trial court's judgment of
conviction.

URL:http://www.tba.org/tba_files/TCCA/william2.opn.WP6

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