TBALink Opinion-Flash

March 25, 1998 -- Volume #4 -- Number #055

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
03-New Opinons From TCA
09-New Opinons From TCCA

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TBALink Chief Editor


STATE OF TENNESSEE,           
DEPARTMENT OF                 
CHILDREN SERVICES
vs.
SHIRLEY MARIE DARR

Court:TCA

Attorneys:

For Appellant               For Appellee

CAROL ANN BARRON            JOHN KNOX WALKUP
Dayton, Tennessee           Attorney General and Reporter
                            Nashville, Tennessee

                            DOUGLAS EARL DIMOND
                            Assistant Attorney General
                            General Civil Division
                            Nashville, Tennessee
                          
Judge:Susano

First Paragraph:

The trial court terminated the parental rights of Shirley Marie Darr
("Mother") with respect to her minor children, Heather M. Stanley
(DOB: February 12, 1989) and Tonya J. Stanley (DOB: January 11, 1991).
 Mother appealed, contending that the evidence preponderates against
the trial court's determination that grounds exist to terminate her
parental rights.

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

DAVID HICKS
vs.
GENE E. COX and CONNIE WHITTAKER

Court:TCA

Attorneys:

For Appellant                   For Appellees

JAMES L. ARNOLD                 PHILIP R. CRYE, JR.
LaFollette, Tennessee           Magill, Crye & Cizek
                                Clinton, Tennessee
                          
Judge:Susano

First Paragraph:

The plaintiff, David Hicks ("Hicks"), sued Gene E. Cox ("Cox") and
Connie Whittaker ("Whittaker"), each of whom owns an interest in
property immediately adjacent to Hicks' subdivision lot, seeking to
enforce deed restrictions that prohibit, among other things, the
placing of "trailers" on the defendants' property.  The trial court
held that, even assuming the restrictions pertaining to the
defendants' property were broad enough to cover Whittaker's
single-wide mobile home, the "enforcement of such restriction has been
waived or [Hicks] should be estopped to enforce same."  Hicks
appealed, arguing that the single-wide mobile home is a "trailer," as
that term is used in the restrictive covenants; that the trial court
erred in admitting hearsay testimony as to the developer's intent with
respect to the use of the word "trailers"; and, finally, that the
trial court erred when it ruled that Hicks was precluded from
enforcing the restrictive covenant against "trailers" under the
doctrines of waiver and estoppel.

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

TRULA MUGFORD REALTY
vs.
CLAY LETHCO

Court:TCA

Attorneys:

For Appellant                   For Appellee

ANDREW J. EVANS, JR.            CREED A. DANIEL
Knoxville, Tennessee            Rutledge, Tennessee
                          
Judge:Susano

First Paragraph:

The plaintiff real estate agency brought this civil action to recover
a commission allegedly due it for services rendered with respect to
the sale of 114.5 acres of real property in Grainger County. 
Following a bench trial, the Circuit Court dismissed the complaint,
predicated primarily on the fact that the sale did not close.  The
plaintiff appealed, arguing that it is entitled to a commission under
the terms of the listing agreement signed by the defendant.

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

DAVID ALBERT BARGER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

DAVID ALBERT BARGER, pro se         JOHN KNOX WALKUP 
#118579, N.E.C.C.                   Attorney General & Reporter
P.O. Box 5000 
Mountain City, TN  37683-5000       MICHAEL J. FAHEY, II
                                    Assistant Attorney General
                                    2nd Floor, Cordell Hull Bldg
                                    425 Fifth Avenue North 
                                    Nashville, TN  37243

                                    C. BERKELEY BELL, JR.
                                    District Attorney General 
                                    109 Main Street 
                                    Greeneville, TN  37743
                          
Judge:WOODALL

First Paragraph:

Petitioner, David Barger, appeals the denial of his petition for
post-conviction relief.  Petitioner pled guilty to the offenses of
armed robbery on September 18, 1987, and no direct appeal from that
plea was made.  On January 15, 1997, Petitioner filed a petition for
post-conviction relief on the grounds of ineffective assistance of
counsel resulting in an involuntary guilty plea.  The trial court
dismissed the petition without a hearing because it was filed outside
the statute of limitations.  Petitioner appeals on the basis that the
late-filed petition is an exception under Burford v. State, 845 S.W.2d
204 (Tenn. 1992).  We affirm the judgment of the trial court.

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

ROCKY LEE COKER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

ROCKY LEE COKER, pro se         JOHN KNOX WALKUP 
#108069, STSRCF, Unit 6         Attorney General & Reporter
Route 4, Box 600
Pikeville, TN  37367            MARVIN E. CLEMENTS, JR.
                                Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                WILLIAM COX 
                                District Attorney General 
                                600 Market Street, Suite 310
                                Chattanooga, TN  37402

                         
Judge:WOODALL

First Paragraph:

The Petitioner, Rocky Lee Coker, appeals from the order dismissing his
pro se petition for post-conviction relief in the Criminal Court for
Hamilton County.  The trial court found that Petitioner's grounds for
relief have been previously determined or waived, and that Petitioner
did not allege any ground for relief which was created or arose after
his prior post-conviction petitions were heard.  In this appeal,
Petitioner contends that the trial court erred in dismissing his
petition on the basis of Tennessee Code Annotated section 40-30-202(a)
and on the trial court's failure to allow Petitioner to amend his
petition or to submit proof.  We affirm the judgment of the trial
court.

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

STATE OF TENNESSEE  
vs.
CHARLES E. LAKINS

Court:TCCA

Attorneys:

For the Appellant           For the Appellee

Michael G. Hatmaker         John Knox Walkup
571 Main Street             Attorney General & Reporter
P.O. Drawer 417 
Jacksboro, TN. 37757        Timothy F. Behan
                            Assistant Attorney General
                            2nd Floor Cordell Hull Building
                            425 Fifth Avenue North
                            Nashville, TN. 37243-0493

                            William Paul Phillips
                            District Attorney General
                                
                            E. Shayne Sexton
                            Assistant District Attorney General
                            P.O. Box 323
                            Jacksboro, TN. 37757

                            Michael O. Ripley
                            Assistant District Attorney General
                            P.O. Box 323
                            Jacksboro, TN. 37757
                          
Judge:BARKER

First Paragraph:

The appellant, Charles E. Lakins, appeals as of right the convictions
and sentences he received in the Criminal Court of Claiborne County. 
After a trial by jury,  the appellant was convicted of possession with
intent to sell a Schedule II controlled substance, to wit: cocaine, in
an amount in excess of twenty six (26) grams, a Class B felony; and
possession with intent to deliver drug paraphernalia, to wit:
inosital, a Class E felony.  The trial court sentenced the appellant
as a Range I standard offender to ten (10) years for possession of
cocaine with intent to sell and to one (1) year for possession of drug
paraphernalia with intent to deliver.  The sentences were ordered to
run concurrently for a total effective sentence of ten (10) years in
the Tennessee Department of Correction.

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

STATE OF TENNESSEE
vs.
MICHAEL D. LEACH

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

CHARLES W. BURSON                   MICHAEL G. HATMAKER
Attorney General & Reporter         P.O. Box 417, 571 Main Street
                                    Jacksboro, TN 37757
SANDY R. COPOUS
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243

JAMES N. RAMSEY
District Attorney General

JAN HICKS
Assistant District Attorney General
127 Anderson County Courthouse
Clinton, TN 37716                         

Judge:CLARK

First Paragraph:

The State of Tennessee appeals from the action of the Anderson County
Criminal Court dismissing the indictment against the appellee for
driving under the influence of an intoxicant.  The trial court held
that defendant's prosecution violated his right against double
jeopardy.  The judgment of the trial court is reversed.

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

GROVER LIVESAY
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

GROVER LIVESAY, pro se      JOHN KNOX WALKUP 
#218956, N.W.C.C.           Attorney General & Reporter
P.O. Box 5000 
Mt. City, TN  37683         SANDY C. PATRICK 
                            Assistant Attorney General
                            2nd Floor, Cordell Hull Building
                            425 Fifth Avenue North 
                            Nashville, TN  37243

                            C. BERKELEY BELL, JR.
                            District Attorney General 
                            Greene County Office Complex 
                            113-J West Church Street
                            Greeneville, TN  37745
                         
Judge:WOODALL

First Paragraph:

The Petitioner, Grover Livesay, appeals as of right the trial court's
dismissal of his petition for post-conviction relief.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE
vs.
JAMIE LEE PITTMAN

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

Johnny D. Houston, Jr.          Charles W. Burson
717 Georgia Avenue              Attorney General and Reporter
Chattanooga, TN  37402  
                                Clinton J. Morgan
                                Assistant Attorney General                              
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                William H. Cox III
                                District Attorney General

                                Rebecca J. Stern
                                Asst. District Attorney General
                                Suite 300, Courts Building
                                600 Market Street
                                Chattanooga, TN  37402
                          
Judge:Hayes

First Paragraph:

The appellant, Jamie Lee Pittman, was found guilty by a Hamilton
County jury of aggravated robbery, robbery, and carrying a dangerous
weapon.  The trial court subsequently imposed an effective sentence of
twelve years in the Department of Correction.

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

CHARLES SHELTON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

CHARLES SHELTON, pro se             JOHN KNOX WALKUP 
#117031, N.E.C.C.                   Attorney General & Reporter
P.O. Box 5000 
Mountain City, TN  37683-5000       ELLEN H. POLLACK 
                                    Assistant Attorney General
                                    2nd Floor, Cordell Hull Bldg
                                    425 Fifth Avenue North 
                                    Nashville, TN  37243

                                    C. BERKELEY BELL, JR.
                                    District Attorney General 
                                    Greene County Office Complex 
                                    113-J West Church Street
                                    Greeneville, TN  37745
                         
Judge:WOODALL

First Paragraph:

The Petitioner, Charles Shelton, appeals the order of the Greene
County Criminal Court dismissing his pro se petition for
post-conviction relief.  The trial court found that the petition was
filed outside the statute of limitations.  In this appeal, Petitioner
raises numerous issues which can collectively be summarized as
challenging the trial court's ruling that the petition for
post-conviction relief is time barred.  After a review of the record,
we affirm the trial court's denial of post conviction relief.

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

JAMES W. SMITH
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

JAMES W. SMITH, pro se          JOHN KNOX WALKUP 
#229668, S.T.S.R.C.F.           Attorney General & Reporter
Route 4, Box 600
Pikeville, TN  37367            TIMOTHY F. BEHAN 
                                Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                J. MICHAEL TAYLOR
                                District Attorney General 

                                JAMES W. POPE, III
                                Assistant District Attorney General
                                First American Bank Bldg., 3rd Floor
                                Dayton, TN  37321
                          
Judge:WOODALL

First Paragraph:

The Petitioner, James W. Smith, appeals the order of the Rhea County
Circuit Court dismissing his pro se petition for post-conviction
relief.  The trial court found that the petition was filed outside the
statute of limitations.  After a review of the record, we affirm the
trial court.

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

STATE OF TENNESSEE
vs.
EMORY WOOD

Court:TCCA

Attorneys:

FOR THE APPELLEE:                   FOR THE APPELLANT:

PHILLIP L. DUVAL                    JOHN KNOX WALKUP 
537 Market Street, Suite 204        Attorney General & Reporter
Chattanooga, TN  37402
                                ELLEN H. POLLACK 
                                Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                WILLIAM COX 
                                District Attorney General 

                                C. PARKE MASTERSON
                                Asst District Attorney General
                                600 Market Street, Suite 310
                                Chattanooga, TN  37402                          
                                
Judge:WOODALL

First Paragraph:

The Appellant, the State of Tennessee, brings this appeal as of right
following a hearing regarding a motion to suppress evidence.  The
Hamilton County Grand Jury indicted the Appellee, Emory Wood, for
driving under the influence of an intoxicant and possession of a
pistol with the intent to go armed.  Appellee filed a motion to
suppress all of the evidence discovered through a search of his person
and his vehicle.  A hearing was conducted by the trial court, and the
trial court granted the motion to suppress the evidence.  The State
appeals on the basis that the evidence was found after a reasonable
stop and a lawful search of Wood's car.  We affirm the judgment of the
trial court.

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

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