TBALink Opinion-Flash

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

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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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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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
Opinion-Flash

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