
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.
- 02-New Opinions From TSC
- 00-New Opinions From TSC-Rules
- 00-New Opinions From TSC-Workers Comp Panel
- 04-New Opinions From TCA
- 15-New Opinions From TCCA
There are three ways to get the full opinion from the Web: (TBALink members only)
George Dean
TBALink Chief Editor

STATE OF TENNESSEE vs. SHANNON RENEE DAVIS Court:TSC Attorneys: For Appellant: For Appellee: R. Russell Mattocks Charles W. Burson Morristown, Tennessee Attorney General & Reporter Michael E. Moore Solicitor General Michael W. Catalano Associate Solicitor General Nashville, Tennessee C. Berkeley Bell, Jr. District Attorney General John Douglas Godbee Assistant District Attorney Rogersville, Tennessee Judge: ANDERSON First Paragraph: We granted the appeal in this case to answer a question of first impression: whether the trial court had the statutory authority to order the defendant to pay restitution in addition to ordering a sentence of incarceration for the offense of vandalism, and to determine whether the trial court erred in denying the defendant probation. AFFIRMED. URL:http://www.tba.org/tba_files/TSC/DAVISSHN_OPN.WP6BOBBY RIGGS and M-HELICOPTERS OF TENNESSEE, INC. vs. CHARLES W. BURSON, Tennessee Attorney General and Reporter, CARL JOHNSON, Commissioner of the Tennessee Department of Transportation Court:TSC Attorneys: For Appellants: For Appellees: Charles W. Burson Steven E. Marshall Attorney General & Reporter Marshall & Delius Sevierville, Tennessee Michael E. Moore Solicitor General Barry Turner Deputy Attorney General Nashville, Tennessee Judge: ANDERSON First Paragraph: We granted this appeal to decide whether a state statute prohibiting the use of land for a heliport within nine miles of the boundary of a national park is constitutional and, if so, whether it is preempted by federal law. COURT OF APPEALS REVERSED; TRIAL COURT JUDGMENT REINSTATED. URL:http://www.tba.org/tba_files/TSC/RIGGSBOB_OPN.WP6
CGR INVESTMENTS, INC. vs. HACKNEY PETROLEUM, INC. Court:TCA Attorneys: For Appellant For Appellee ARTHUR G. SEYMOUR, JR. BARRY K. MAXWELL JAMES E. WAGNER Egerton, McAfee, Armistead & Frantz, McConnell & Davis, P.C. Seymour, L.L.P. Knoxville, Tennessee Knoxville, Tennessee Judge: Susano First Paragraph: This appeal is controlled by North Carolina substantive law. Our focus is on an admitted misrepresentation made during the course of negotiations to settle a lease dispute. One issue is whether the misrepresentation is such as to warrant voiding the settlement agreement subsequently executed by the parties to this litigation. Following a bench trial, the trial judge held that the settlement agreement was valid and enforceable. He had earlier determined that the acknowledged misrepresentation did not constitute an unfair or deceptive trade practice under the applicable North Carolina statutory scheme. The plaintiff CGR Investments, Inc. (CGR) appealed, arguing that the trial court's judgment is wrong in both respects. AFFIRMED IN PART REVERSED IN PART REMANDED. URL:http://www.tba.org/tba_files/TCA/CGR_OPN.WP6
TBC CORPORATION vs. GENE WALL, GERALDINE WALL, JOE WALL and HELEN WALL vs. MARVIN BRUCE Court:TCA Attorneys: JOHN I. HOUSEAL, JR. and JAMES S. STRICKLAND, JR., Glankler Brown, Memphis, Attorneys for Plaintiff/Third-Party Defendant/Appellants. THOMAS F. JOHNSTON, PAUL E. PRATHER and STEVEN W. LIKENS, Armstrong, Allen, Prewitt, Gentry, Johnston, & Holmes, Memphis, Attorneys for Defendants/Third-Party Plaintiffs/Appellees. Judge: TOMLIN First Paragraph: TBC Corporation ("Plaintiff") filed suit in the Chancery Court of Shelby County against Joe Wall, Helen Wall, Gene Wall and Geraldine Wall (collectively "The Walls" or "Defendants") seeking a judgment for an amount due on an account secured by personal guaranties signed by defendants. The defendants filed an answer and a third-party complaint, the latter against Marvin Bruce, plaintiff's president, ("Bruce"), by which they sought indemnification in the event plaintiff obtained a judgment against them. In their answer, the defendants denied that the guaranties were still in effect, and in addition, raised the affirmative defenses of release, waiver, abandonment and estoppel. The answer and third-party complaint also demanded a jury. REVERSED IN PART AND AFFIRMED IN PART. URL:http://www.tba.org/tba_files/TCA/TBC_OPN.WP6
PHYLLIS TRACY and RAYFORD TRACY vs. EXXON CORPORATION, d/b/a EXXON SHOP Court:TCA Attorneys: EDWIN C. LENOW Memphis, Tennessee Attorney for Appellants JOHN J. HEFLIN, III ALEX C. ELDER BOURLAND, HEFLIN, ALVAREZ, HOLLEY & MINOR, PLC Memphis, Tennessee Attorneys for Appellees Judge: HIGHERS First Paragraph: In this slip and fall case, the Plaintiffs, Phyllis and Rayford Tracy, filed suit against the Defendant, Exxon Corporation, for injuries sustained from Phyllis Tracy's fall at the Defendant's place of business. The trial court granted summary judgment in favor of the Defendant based upon the open and obvious rule. The Plaintiffs have appealed the trial court's order granting the Defendant's motion for summary judgment arguing that the open and obvious rule does not apply in this case. AFFIRMED. URL:http://www.tba.org/tba_files/TCA/TRACYP_OPN.WP6
KENNETH VALENTINE and wife, RITA VALENTINE vs. DOUG WEATHERFORD Court:TCA Attorneys: CARTHEL L. SMITH, JR. Lexington, Tennessee Attorney for Plaintiffs/Appellants JOHN S. LITTLE WALDROP & HALL Jackson, Tennessee Attorney for Defendant/Appellee Judge: HIGHERS First Paragraph: In this slip and fall case, the Plaintiffs, Kenneth and Rita Valentine, filed suit against the Defendant, Doug Weatherford, for injuries sustained from Kenneth Valentine's fall at the Defendant's home. The trial court granted the Defendant's motion for summary judgment based upon application of the open and obvious rule. The Plaintiffs have appealed the trial court's order granting the Defendant's motion for summary judgment arguing that the open and obvious rule does not apply to the facts of this case. AFFIRMED. URL:http://www.tba.org/tba_files/TCA/VALENTIN_OPN.WP6
RONALD ALBERT BRUMMITT vs. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: Douglas A. Trant Charles W. Burson 900 South Gay Street Attorney General & Reporter Suite 1502 Knoxville, TN 37902 Eugene J. Honea Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 Charles Hawk District Attorney General and Roger Delp Asst. District Attorney General P.O. Box 703 Kingston, TN 37763 Judge: WELLES First Paragraph: The petitioner, Ronald Albert Brummitt, appeals the trial court's dismissal of his petition for post-conviction relief. The single issue presented for review is whether the petition was barred by the statute of limitations. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/BRUMMITT_OPN.WP6
CHICO LOPEZ CHIGANO vs. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Mark Stephens Charles W. Burson Knox County Public Defender Attorney General and Reporter David Gall Timothy F. Behan Asst. Public Defender Assistant Attorney General 1209 Euclid Avenue Criminal Justice Division Knoxville, TN 37921 450 James Robertson Parkway Nashville, TN 37243-0493 Randall E. Nichols District Attorney General Robert Jolley Asst. District Attorney General City-County Building Knoxville, TN 37902 Judge: Hayes First Paragraph: The appellant, Chico Lopez Chigano, appeals the Knox County Criminal Court's dismissal of his petition for post-conviction relief. On appeal, the appellant raises only one issue: Whether his trial counsel was ineffective for failure to request an accomplice instruction at trial. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/CHIGANO_OPN.WP6
STATE OF TENNESSEE vs. KENNETH CULP Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Julie K. Pillow Charles W. Burson Assistant Public Defender Attorney General & Reporter P.O. Box 700 500 Charlotte Avenue Somerville, TN 38068 Nashville, TN 37243-0497 (Trial and Appeal) Ellen H. Pollack David S. Stockton Assistant Attorney General Assistant Public Defender 450 James Robertson Parkway P.O. Box 700 Nashville, TN 37243-0493 Somerville, TN 38068 (Trial Only) Elizabeth T. Rice District Attorney General OF COUNSEL: 302 Market Street Somerville, TN 38068 Gary F. Antrican District Public Defender James W. Freeland, Jr. P.O. Box 700 Assistant District Public Defender Somerville, TN 38068 302 Market Street Somerville, TN 38068 Judge: Jones First Paragraph: The appellant, Kenneth Culp, was convicted of escape, a Class E felony, by a jury of his peers. The trial court, finding the appellant to be a career offender, imposed a Range III sentence consisting of confinement for six (6) years in the Department of Correction. In this Court, the appellant contends the trial court committed error of prejudicial dimensions by (a) permitting a sheriff's deputy to testify regarding a telephone call he received on the evening the appellant escaped, (b) failing to instruct the jury on the defense of duress, and (c) giving an erroneous instruction on the defense of necessity. After a thorough review of the record, the briefs of the parties, and the authorities which govern these issues, this Court is of the opinion the judgment of the trial court should be affirmed. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/CULPKEN_OPN.WP6
STATE OF TENNESSEE vs. CECIL WAYNE FOWLER Court:TCCA Attorneys: For the Appellant: For the Appellee: Pamela Drewery Charles W. Burson Asst District Public Defender Attorney General of Tennessee 227 West Baltimore and Jackson, TN 38301 Sarah M. Branch (AT TRIAL) Assist Attorney General of Tenn 450 James Robertson Parkway George Morton Googe Nashville, TN 37243-0493 District Public Defender and James G. (Jerry) Woodall Pamela J. Drewery District Attorney General Assit District Public Defender and 227 West Baltimore Don Allen Jackson, TN 38301 Asst District Attorney General (ON APPEAL) P.O. Box 2825 Jackson, TN 38302-2825 Judge: Tipton First Paragraph: The defendant, Cecil Wayne Fowler, appeals as of right from the revocation of his probation by the Madison County Circuit Court. He contends that the trial court abused its discretion by revoking his probation. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/FOWLERC_OPN.WP6
THOMAS W. HEATON vs. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: John G. McDougal Charles W. Burson Attorney at Law Attorney General and Reporter 701 Broad St. Tivoli Center, Suite One LL Robin L. Harris Chattanooga, TN 37402 Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 William H. Cox III District Attorney General Yolanda Mitchell Asst. District Attorney General Third Floor, Courts Building Chattanooga, TN 37402 Judge: Hayes First Paragraph: The appellant, Thomas W. Heaton, appeals the trial court's denial of his petition for post-conviction relief. The appellant is currently serving a sentence of nine years in the Tennessee Department of Correction pursuant to his guilty plea to aggravated burglary. The appellant presents the following issues for our consideration: first, whether his plea of guilty was knowing and voluntary, i.e. "made with knowledge of the 'relevant circumstances and likely consequences,'" King v. Dutton, 17 F.3d 151, 153 (6th Cir.), cert. denied, U.S., 114 S.Ct. 2712 (1994)(citation omitted); second, whether appointed counsel was ineffective in failing to ensure that the appellant understood the terms of the plea agreement. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/HEATON_OPN.WP6
STATE OF TENNESSEE vs. MILTON S. JONES, JR Court:TCCA Attorneys: For Appellant: For Appellee: Mark A. Mesler Charles W. Burson 200 Jefferson Avenue Attorney General & Reporter Memphis, TN 38103 (on appeal only) Robin L. Harris Assistant Attorney General Marvin Ballin 450 James Robertson Parkway 200 Jefferson Avenue Nashville, TN 37243 0493 Memphis, TN 38103 (on appeal and at trial) J. Robert Carter, Jr. and Terry Harris Asst. District Attorneys General Shelby County Dist Atty's Office 201 Poplar Avenue, Third Floor Memphis, TN 38103 Judge: WADE First Paragraph: The defendant, Milton S. Jones, Jr., pled guilty to one count of aggravated sexual battery of a child less than thirteen (13) years of age. Tenn. Code Ann. S 39-13-504. On the initial direct appeal, this court remanded for resentencing. State v. Milton S. Jones, Jr., No. 02C01-9304-CR-00076 (Tenn. Crim. App., at Jackson, March 23, 1994). The trial judge then sentenced the defendant to a Range I, nine-year term. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/JONES5_OPN.WP6
JIMMY EARL LOFTON vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JIMMY EARL LOFTON, pro se CHARLES W. BURSON CCA - South Central Corr. Center Attorney General and Reporter P.O. Box 279 Clifton, TN 38425-0279 ELLEN H. POLLACK Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 JOHN W. PIEROTTI District Attorney General TOM HENDERSON Asst District Attorney General 201 Poplar Avenue Third Floor Memphis, TN 38103 Judge: RILEY First Paragraph: Jimmy Earl Lofton appeals the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. He was declared an habitual criminal at a trial in 1985. In 1995, one of the underlying convictions was set aside. He now contends that the habitual criminal finding should be set aside. The trial court denied post-conviction relief without a hearing. On appeal, Lofton presents two issues for our review: (1) whether he was denied the right to a fair trial by the use of a 1970 conviction which was subsequently vacated; and (2) whether the reasonable doubt jury instruction violated due process. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/LOFTONJ_OPN.WP6
TIMOTHY L. LOVELACE vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN S. WILDER & ASSOCIATES CHARLES W. BURSON ANDREW S. JOHNSTON Attorney General and Reporter 108 E. Court Square Somerville, TN 38068 SARAH M. BRANCH Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243 ELIZABETH RICE District Attorney General CHRIS MARSHBURN Assistant District Attorney 302 Market Street Somerville, TN 38068 Judge: SMITH First Paragraph: Appellant Timothy L. Lovelace appeals the trial court's denial of his petition for post-conviction relief. He presents the following issues for review: (1) whether the trial court erred in finding that his trial counsel rendered effective assistance; and (2) whether the trial court erred in finding that no due process violation occurred where the judgment offense was of a different class than the plea offense. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/LOVELACE_OPN.WP6
STATE OF TENNESSEE vs. BRYANT DEWAYNE MILLEN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Leslie I. Ballin Charles W. Burson Mark A. Mesler Attorney General & Reporter Ballin, Ballin & Fishman, P.C. 200 Jefferson Avenue, Suite 1250 Timothy F. Behan Memphis, TN 38103 Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 John W. Pierotti District Attorney General Thomas D. Henderson Asst. Dist. Attorney General 201 Poplar, Third Floor Memphis, TN 38103 Judge: SUMMERS First Paragraph: The appellant, Bryant Dewayne Millen, was indicted on one count of first degree murder and one count of felony murder. He was convicted by a jury of first degree murder and sentenced to life imprisonment. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/MILLENB_OPN.WP6
STATE OF TENNESSEE vs. JOHN MILLER, JR. Court:TCCA Attorneys: For Appellant: For Appellee: Terry L. Jordan Charles W. Burson Assistant Public Defender Attorney General & Reporter P.O. Box 839 Blountville, TN 37617 Darian B. Taylor Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 Phyllis H. Miller Asst District Attorney General P.O. Box 526 Blountville, TN 37617 Judge: WADE First Paragraph: The defendant, John Miller, Jr., was convicted of reckless endangerment with a deadly weapon, a felony. Tenn. Code Ann. S 39-13 103(b). The trial court imposed a two-year sentence. In this appeal of right, the defendant challenges the sufficiency of the evidence and claims the sentence was excessive. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/MILLERJ_OPN.WP6
STATE OF TENNESSEE vs. ANTHONY PULLIAM Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Walker Gwinn Charles W. Burson Assistant Public Defender Attorney General & Reporter 201 Poplar Avenue, Suite 2-01 500 Charlotte Avenue Memphis, TN 38103 Nashville, TN 37243-0497 (Appeal Only) Ellen H. Pollack Samuel L. Perkins Assistant Attorney General Assistant Public Defender 450 James Robertson Parkway 201 Poplar Avenue, Suite 2-01 Nashville, TN 37243-0493 Memphis, TN 38103 (Trial Only) John W. Pierotti District Attorney General OF COUNSEL: 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 A C Wharton, Jr. Shelby County Public Defender James M. Lammey 201 Poplar Avenue, Suite 2-01 Asst District Attorney General Memphis, TN 38103 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Judge: Jones First Paragraph: The appellant, Anthony Pulliam, was convicted of aggravated robbery, a Class B felony, by a jury of his peers. The trial court found the appellant was a multiple offender and imposed a Range II sentence consisting of confinement for fourteen (14) years in the Department of Correction. The appellant contends the trial court committed error of prejudicial dimensions by failing to instruct the jury on the lesser included offense of robbery. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/PULLIAMA_OPN.WP6
STATE OF TENNESSEE vs. GUY WILLIAM RUSH Court:TCCA Attorneys: For the Appellant: For the Appellee: Leslie S. Hale Charles W. Burson Asst. Public Defender Attorney General and Reporter P. O. Box 839 Blountville, TN 37617 Susan Rosen Assistant Attorney General Stephen M. Wallace Criminal Justice Division District Public Defender 450 James Robertson Parkway Nashville, TN 37243-0493 H. Greeley Wells, Jr. District Attorney General Edward E. Wilson Asst. District Attorney General Blountville, TN 37617 Judge: Hayes First Paragraph: The appellant, Guy William Rush, appeals as of right from the order of the Sullivan County Criminal Court revoking his probation. The appellant presents one issue for our review. He contends that the trial court abused its discretion in revoking his sentence of probation. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/RUSHGW_OPN.WP6
ADRIAN WAITE vs. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: ON APPEAL: Gerald L. Gulley, Jr. BAKER, McREYNOLDS, BYRNE, BRACKETT, O'KANE & SHEA P.O. Box 1708 Knoxville, TN 37901-1708 For Appellee: Charles W. Burson Attorney General & Reporter William David Bridgers Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 Judge: WADE First Paragraph: The petitioner, Adrian Waite, appeals the trial court's dismissal of his petition for post-conviction relief. The single issue presented for our review is whether the trial court erred by dismissing the petition without the appointment of counsel or an evidentiary hearing. REVERSED AND REMANDED. URL:http://www.tba.org/tba_files/TCCA/WAITEA_OPN.WP6
ERIC WEBB vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT; FOR THE APPELLEE: R. Price Harris Charles W. Burson Attorney at Law Attorney General & Reporter 3074 East Street 500 Charlotte Avenue Memphis, TN 38128 Nashville, TN 37243-0497 Ellen H. Pollack Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 John W. Pierotti District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Jennifer S. Nichols Asst District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Judge: Jones First Paragraph: The appellant Eric Webb, appeals as of right from a judgment of the trial court dismissing his suit for post-conviction relief following an evidentiary hearing. The appellant contends the trial court erroneously concluded he was afforded the effective assistance of counsel within the meaning of the United States Constitution and the Tennessee Constitution. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/WEBB3_OPN.WP6
STATE OF TENNESSEE vs. LAMAR WEDDLE Court:TCCA Attorneys: For the Appellant: For the Appellee: G. Stephen Davis Charles W. Burson District Public Defender Attorney General of Tennessee and and Clarence Cochran George Linebaugh Assistant Public Defender Asst Attorney General of Tennessee 208 Mill Avenue 450 James Robertson Parkway Dyersburg, TN 38024 Nashville, TN 37243-0493 (AT TRIAL) C. Phillip Bivens Bill R. Barron District Attorney General 124 East Court Square 115 East Market St. Trenton, TN 38382 Dyersburg, TN 38024 (ON APPEAL) Judge: Jones First Paragraph: The defendant, Lamar Weddle, was convicted in a jury trial in the Dyer County Circuit Court of possession of over one-half gram of cocaine for resale, a Class B felony. The trial court sentenced the defendant as a Range I, standard offender to eight years in the custody of the Department of Correction and imposed a fine of two thousand dollars. In this appeal as of right, the defendant contends (1) that the evidence is insufficient to support his conviction and (2) that the trial court erred by refusing to grant him some form of sentencing alternative to incarceration. We disagree. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/WEDDLE_OPN.WP6

Feel free to forward this Opinion-Flash on to any attorney you know of with an internet address, who is not a TBALink member. To Join TBALink - Http://www.tba.org/join.html/
Would you like to receive the TBALink Opinion-Flash each day
via e-mail?
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
Non TBA members are WELCOME to subscribe...it's free!!
Would you like to STOP receiving the 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
