TBALink Opinion-Flash

March 12, 1998 -- Volume #4 -- Number #046

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.

This Issue (IN THIS ORDER):
00-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
04-New Opinons From TCA
14-New Opinons From TCCA

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TBALink Chief Editor


ELIZABETH BOONE BATES
vs.
ROBERT C. BATES

Court:TCA

Attorneys:

Kay Farese Turner,
William E. Miller of Memphis, 
For Appellee    
                            
J. Alan Hanover, 
James R. Newsom III of Memphis, 
For Appellant                          

Judge:CRAWFORD

First Paragraph:

Petitioner, Robert C. Bates, appeals from the order of the trial court
dismissing his petition filed pursuant to Tenn.R.Civ.P. 60.02 to set
aside or modify the final decree of divorce as it pertains to the
marital dissolution agreement incorporated in the decree.

URL:http://www.tba.org/tba_files/TCA/batesel_opn.WP6
Opinion-Flash

LESS, GETZ & LIPMAN, P.L.L.C.
vs.
RAINBOW ENTERTAINMENT, INC.

Court:TCA

Attorneys: 

Melinda Plass Jewell, 
RICE, SMITH, BURSI, VEAZEY, AMUNDSEN & JEWELL, L.L.P.C., Memphis,TN
Richard M. Greene, Greensboro, North Carolina
Attorneys for Defendant/Appellant.

Scott A. Frick, Memphis, Tennessee
Michael D. Herrin, Memphis, Tennessee
Attorneys for Plaintiff/Appellee.
                         
Judge:FARMER

First Paragraph:

The parties to this case dispute whether the Appellant Rainbow
Entertainment, Inc., (hereinafter, "Rainbow") is obligated to the law
firm of Less, Getz & Lipman, P.L.L.C., (hereinafter, "law firm") for
payment for certain legal services.  The trial court, sitting without
a jury, determined that Rainbow was indebted to the law firm for
$237,193.04 for legal services rendered by the firm on behalf of
Rainbow.  For the reasons hereinafter set forth, the judgment of the
trial court is affirmed.

URL:http://www.tba.org/tba_files/TCA/lessgeli_opn.WP6
Opinion-Flash

NELSON McCOY d/b/a NELSON   
McCOY COTTON COMPANY
vs.
DALLAS THOMASON & SONS      
COTTON, INC.

Court:TCA

Attorneys:

CRAWFORD E. McDONALD
Memphis, Tennessee

DONALD L. KNEIPP
KNEIPP & HASTINGS
Monroe, Louisiana
Attorneys for Appellant

JOHN McQUISTON, II
EVANS & PETREE
Memphis, Tennessee
Attorney for Appellee
                          
Judge:HIGHERS

First Paragraph:

Defendant/Appellant, Dallas Thomason & Sons Cotton, Inc.
("defendant"), appeals the judgment of the trial court finding that it
had breached its contract with Plaintiff/Appellee, Nelson McCoy d/b/a
Nelson McCoy Cotton Company ("plaintiff"), and awarding damages to
plaintiff in the amount of $60,672.20.  For reasons stated
hereinafter, we affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCA/mccoyn_opn.WP6
Opinion-Flash

R. S. REED & SONS, INC.
vs.
FREIGHTLINER CORP. AND      
EMERSON ELECTRIC CO.

Court:TCA

Attorneys:

THOMAS H. RAINEY
TIMOTHY G. WEHNER
RAINEY, KIZER, BUTLER, REVIERE & BELL
Jackson, Tennessee

ADAM K. PECK
LIGHTFOOT, FRANKLIN & WHITE, L.L.C.
Birmingham, Alabama
Attorneys for Appellants

KEVIN COMBS
THE RICHARDSON LAW FIRM
Memphis, Tennessee
Attorney for Appellee
                          
Judge:HIGHERS

First Paragraph:

In this products liability action, Defendants Freightliner Corporation
and Emerson Electric Company appeal the trial court's judgment
awarding Plaintiff/Appellee R.S. Reed & Sons, Inc., the sum of
$30,700.  For the reasons stated hereinafter, we reverse the trial
court's judgment.

URL:http://www.tba.org/tba_files/TCA/reedrs_opn.WP6
Opinion-Flash

LARRY WAYNE BAXTER
vs. 
STATE OF TENNESSEE

Court:TCCA
                       
Judge:JONES

First Paragraph:

This case represents an appeal from the dismissal of the petitioner's
petitions for post-conviction relief.  On April 2, 1975, the
petitioner pled guilty to third degree burglary, on March 24, 1977,
the petitioner again pled guilty to third degree burglary, and on June
25, 1992, the petitioner pled guilty to aggravated assault.  No appeal
was taken from these convictions.  On May 29, 1997, the petitioner
filed petitions for post-conviction relief attacking each of these
three convictions.  The petitioner claimed that he was not fully
advised of his rights against self incrimination or that these
convictions could be used to enhance subsequent convictions.  Finding
that the statute of limitations had expired, the trial court dismissed
the petitions without a hearing.

URL:http://www.tba.org/tba_files/TCCA/baxter1_ord.WP6
Opinion-Flash

TOMMY MACK BLEVINS
vs.
STATE OF TENNESSEE

Court:TCCA
                          
Judge:PEAY

First Paragraph:

This matter is before the Court upon the state's motion requesting
that the judgment in the above-styled cause be affirmed pursuant to
Rule 20, Tennessee Court of Criminal Appeals Rules.  Finding that the
trial court properly denied post-conviction relief, we grant the
state's motion to affirm the judgment pursuant to Rule 20.

URL:http://www.tba.org/tba_files/TCCA/blevinst_ord.WP6
Opinion-Flash

JAMES T. FITE
vs.
KENNETH LOCKE, WARDEN

Court:TCCA
                         
Judge:PEAY

First Paragraph:

This matter is before the Court upon the state's motion requesting
that the judgment in the above-styled cause be affirmed pursuant to
Rule 20, Tennessee Court of Criminal Appeals Rules.  Finding that the
trial court properly held that the appellant failed to state a
cognizable claim for habeas corpus relief, we grant the state's motion
to affirm the judgment pursuant to Rule 20.

URL:http://www.tba.org/tba_files/TCCA/fitejt_ord.WP6
Opinion-Flash

EARNEST HAWKINS
vs.
BILLY COMPTON, WARDEN

Court:TCCA

Judge:HAYES

First Paragraph:

This matter is before the Court upon the state's motion to affirm the
judgment of the trial court in accordance with Rule 20, Rules of the
Court of Criminal Appeals.  It appears the petitioner was indicted for
first degree murder in January 1981.  It further appears the
petitioner pled guilty to the indicted offense and received a life
sentence.  The petitioner has since filed a petition for a writ of
habeas corpus challenging the sufficiency of the indictment entered
against him.  The trial court denied relief.

URL:http://www.tba.org/tba_files/TCCA/hawkins-_ord.WP6
Opinion-Flash

GREGORY EARL JACKSON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

William W. Nowlin                   John Knox Walkup
Attorney at Law                     Attorney General & Reporter
100 North Main Bldg., Ste 3201      425 Fifth Avenue, North
Memphis, TN 38103                   Nashville, TN 37243-0493

                                    Deborah A. Tullis
                                    Assistant Attorney General
                                    425 Fifth Avenue, North
                                    Nashville, TN 37243-0493

                                    William L. Gibbons
                                    District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Nashville, TN 38103

                                    Rhea Clift
                                    Asst District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103
                          

Judge:Jones

First Paragraph:

The appellant, Gregory Earl Jackson (petitioner), appeals as of right
from a judgment of the trial court dismissing his action for
post-conviction relief.  In this court, the petitioner contends the
evidence contained in the record establishes he was denied his
constitutional right to the effective assistance of counsel prior to
and during his guilty plea.

URL:http://www.tba.org/tba_files/TCCA/jacksnge_opn.WP6
Opinion-Flash

EARL JEROME LEE
vs.
STATE OF TENNESSEE

Court:TCCA
                         
Judge:JONES

First Paragraph:

This case represents an appeal from the dismissal of the petitioner's
second petition for post-conviction relief.  The petitioner was
originally convicted of aggravated kidnapping and attempt to commit
felony escape in February 1988.  Apparently, no appeal was taken.  The
petitioner thereafter filed his first petition for post-conviction
relief, which was denied by the trial court on August 18, 1992. 
Again, no appeal apparently was taken.

URL:http://www.tba.org/tba_files/TCCA/lee-e_ord.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
PATRICIA A. LISHMAN

Court:TCCA

Attorneys:

FOR THE APPELLANT:

GARY F. ANTRICAN
District Public Defender

JEANNIE A. KAESS
(At Hearing)
Assistant Public Defender
17805 Highway 64
P.O. Box 700
Somerville, TN 38068-0700

CLIFFORD K. McGOWN, JR.
(On Appeal)
113 North Court Square
P.O. Box 26
Waverly, TN  37185
FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

DEBORAH A. TULLIS
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

ELIZABETH T. RICE
District Attorney General

ED NEAL McDANIEL
Assistant District Attorney General
300 Industrial Park Drive
P.O. Box 473
Selmer, TN  38375-0473                          

Judge:RILEY

First Paragraph:

The defendant, Patricia A. Lishman, pled guilty in the McNairy County
Circuit Court to two (2) counts of burglary, Class D felonies; one (1)
count of theft over $500, a Class E felony; and one (1) count of theft
under $500, a Class A misdemeanor.  The trial court denied alternative
sentencing and imposed concurrent sentences of two (2) years for each
count of burglary, one (1) year for the felony theft count and six (6)
months in the county jail for the misdemeanor theft count.  On appeal,
defendant challenges the trial court's denial of alternative
sentencing.  We remand for entry of modified judgments.  In all other
respects, the judgment of the trial court is affirmed.

URL:http://www.tba.org/tba_files/TCCA/lishmapa_opn.WP6
Opinion-Flash

MARVIN ANTHONY MATTHEWS
vs.
ALTON HESSON, WARDEN

Court:TCCA

Judge:HAYES

First Paragraph:

This matter is before the Court upon the state's motion to affirm the
judgment of the trial court in accordance with Rule 20, Rules of the
Court of Criminal Appeals.  The petitioner was indicted on one count
of third degree burglary in May 1984, and he subsequently pled guilty
to the same. The petitioner has since filed a petition for writ of
habeas corpus challenging the sufficiency of the indictment entered
against him.  The trial court denied relief.

URL:http://www.tba.org/tba_files/TCCA/mathews1_ord.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
STEVEN S. NEWMAN

Court:TCCA

Judge:JONES

First Paragraph:

This case represents an appeal from the dismissal of the petitioner's
petition for post-conviction relief.  On January 5, 1987, the
petitioner pled guilty to four counts of third degree burglary and one
count of larceny from a vending machine, and on October 24, 1988, the
petitioner pled guilty to second degree burglary and grand larceny. 
No appeal was taken from these convictions.  On May 6, 1996, the
petitioner filed a petition for post-conviction attacking the 1987 and
1988 larceny convictions; he apparently did not challenge the burglary
convictions.  The petitioner claimed that he was not fully advised of
his rights against self incrimination or that these convictions could
be used to enhance subsequent convictions.  Finding that the statute
of limitations had expired, the trial court dismissed the petition
without a hearing.

URL:http://www.tba.org/tba_files/TCCA/newman_ord.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
TRACY PITTS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

John Knox Walkup                    C. Edward Fowlkes
Attorney General & Reporter         Attorney at Law
425 Fifth Avenue, North             172 Second Ave., North, Ste 214
Nashville, TN 27243-0493            Nashville, TN  37201-1908

Lisa A. Naylor
Assistant Attorney General
425 Fifth Avenue, North     
Nashville, TN  37243-0493

Victor S. Johnson, III
District Attorney General
Washington Square, Suite 500
222 Second Avenue, North
Nashville, TN 37201-1649
                            
John C. Zimmerman
District Attorney General
Washington Square, Suite 500
222 Second Avenue, North
Nashville, TN 37201-1649
                         
Judge:Jones

First Paragraph:

This court granted the State of Tennessee's (state) application for
permission to appeal to determine the propriety of the trial court's
suppression of cocaine discovered during the search of a motor vehicle
which was stopped for a traffic violation.  The state contends the
stop and subsequent search pass constitutional muster because (a) the
officers had probable cause to believe Tracy Pitts (defendant)
committed a traffic violation and (b) the search of the vehicle was
incident to an arrest.  After a thorough review of the record, the
briefs submitted by the parties, and the law governing the issue
presented for review, it is the opinion of this court that the trial
court failed to make appropriate findings of fact relative to the stop
of the vehicle.  Thus, the judgment of the trial court is reversed,
and this case is remanded for a new suppression hearing.

URL:http://www.tba.org/tba_files/TCCA/pittst_opn.WP6
Opinion-Flash

FREDDIE EVERETT RUSSELL
vs.
STATE OF TENNESSEE

Court:TCCA

Judge:HAYES

First Paragraph:

This matter is before the Court upon the state's motion to affirm the
judgment of the trial court in accordance with Rule 20, Rules of the
Court of Criminal Appeals.  In June 1987, the petitioner was indicted
on one count of aggravated rape, one count of incest, and one count of
crime against nature.  The petitioner was subsequently convicted on
all three counts.  The petitioner has since filed a petition for a
writ of habeas corpus challenging the sufficiency of the indictment
entered against him.  The trial court denied relief.

URL:http://www.tba.org/tba_files/TCCA/russellf_ord.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
WILLIE TAYLOR

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

Brett B. Stein                  John Knox Walkup
Attorney at Law                 Attorney General and Reporter
100 N. Main #3102   
Memphis, TN  38103              Sarah M. Branch
                                Assistant Attorney General                              
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                William L. Gibbons
                                District Attorney General

                                Perry Hayes
                                Asst. District Attorney General
                                Criminal Justice Complex, Ste 301
                                201 Poplar Street
                                Memphis, TN  38103
                          
Judge:Hayes

First Paragraph:

The appellant, Willie Taylor, was convicted by a Shelby County jury of
aggravated burglary and received a sentence of five years.

URL:http://www.tba.org/tba_files/TCCA/taylorw_opn.WP6
Opinion-Flash

WOODROW WILSON
vs.
STATE OF TENNESSEE

Court:TCCA

Judge:PEAY

First Paragraph:

This matter is before the Court upon the state's motion to affirm the
judgment of the trial court pursuant to Rule 20, Rules of the Court of
Criminal Appeals.  The petitioner is appealing the trial court's
denial of his petition for post-conviction relief as time-barred by
the statute of limitations.

URL:http://www.tba.org/tba_files/TCCA/wilsonwh_ord.WP6
Opinion-Flash

SHANNON YOUNG
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 


FOR THE APPELLANT:          FOR THE APPELLEE:

Robert C. Brooks            John Knox Walkup
Attorney at Law             Attorney General & Reporter
707 Adams Avenue            425 Fifth Avenue, North
Memphis, TN 38105           Nashville, TN 37243-0493

                            Kenneth W. Rucker
                            Assistant Attorney General
                            425 Fifth Avenue, North
                            Nashville, TN 37243-0493

                            William L. Gibbons
                            District Attorney General
                            201 Poplar Avenue, Suite 3-01
                            Memphis, TN 38103

                            James M. Lammey
                            Assistant District Attorney General
                            201 Poplar Avenue, Suite 3-01
                            Memphis, TN 38103
                         

Judge:Jones

First Paragraph:

The appellant, Shannon Young (petitioner), appeals as of right from a
judgment of the trial court dismissing his post-conviction action.  He
contends he was denied his constitutional right to the effective
assistance of counsel because the lawyer who represented the
petitioner in the earlier post-conviction action failed to seek
permission to appeal this court's opinion pursuant to Rule 11,
Tennessee Rules of Appellate Procedure.   After a thorough review of
the record, the briefs submitted by the parties, and law governing the
issue presented for review, it is the opinion of this court that the
judgment of the trial court should be affirmed.

URL:http://www.tba.org/tba_files/TCCA/youngs_opn.WP6

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