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May 25, 1999
Volume 5 -- Number 071
What follows is the case style or name, first paragraph, author's
name, and the names of attorneys for the parties of each opinion
released eletronically today to TBALink from Tennessee's three
appellate courts.
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New Formal Ethics Opinion(s) from the Board of Professional Responsibility
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Lucian T. Pera
Editor-in-Chief, TBALink
GILES DAMRON,
VS.
MEDIA GENERAL, INC., NES, II, INC.,
d/b/a ONDULINE SALES and
SERVICE, and GARDEN STATE
PAPER COMPANY, INC., a wholly
owned subsidiary of
MEDIA GENERAL, INC.
Court:TCA
Attorneys:
C.J. GIDEON, JR.
BRYAN ESSARY
EDWARD A. HADLEY
Suite 1900, NationsBank Plaza
Nashville, Tennessee 37219-1782
RAYMOND W. FRALEY, JR.
205 East Market Street
Fayetteville, Tennessee 37334
Attorneys for Plaintiff/Appellee
E. CLIFTON KNOWLES
ROBERT E. COOPER, JR.
SAMUEL L. FELKER
E. STEELE CLAYTON, IV
Suite 2700, First American Center
Nashville, Tennessee 37238-2700
Attorneys for Defendants/Appellants
W. OVID COLLINS, JR.
JOSEPH R. WHEELER
Suite 2700, Nashville City Center
Nashville, Tennessee 37219
Attorneys for Tennessee Association of Business
Judge:CANTRELL
First Paragraph:
In this action, the plaintiff sought to represent a class of purchasers
of a roofing product. The defendants moved for summary judgment on the
product liability statute of repose, the applicable statute of
limitations, the economic loss doctrine and laches. The Circuit Court
of Lincoln County overruled the motion for summary judgment and granted
the plaintiff's motion for class certification. We granted the
defendants' motion for an interlocutory appeal under Rule 9, Tenn.
http://www.tba.org/tba_files/TCA/Damrong_opn.WP6
FRANCES DAVIS
VS.
LORENE INMAN, TERESA G.
INMAN, PAUL W. INMAN and
VIRGIL INMAN
Court:TCA
Attorneys:
PAUL B. PLANT
Harwell & Plant
225 Mahr Avenue
P. O. Box 399
Lawrenceburg, Tennessee 38464
ATTORNEY FOR PLAINTIFF/APPELLEE
THOMAS W. HARDIN
Hardin & Parkes
102 West Seventh Street
P. O. Box 692
Columbia, Tennessee 38402-0692
ATTORNEY FOR DEFENDANTS/APPELLANTS
Judge:BUSSART
First Paragraph:
This case is on appeal from the Chancery Court of Lawrence County,
Tennessee, from an Order of the Chancellor finding ownership of certain
disputed land in the Plaintiff/Appellee, Frances Davis, and granting her
compensatory and punitive damages for trespassing. The case is properly
before this court for review de novo upon the record with a presumption
of correctness of the findings of fact. Unless the evidence
preponderates against the findings of fact, we must affirm, absent an
error of law. Tenn. R. App. P. 13(d).
http://www.tba.org/tba_files/TCA/Davisfra_opn.WP6
FORKLIFT SYSTEMS, INC.
VS.
WERNER ENTERPRISES
Court:TCA
Attorneys:
DOUGLAS E. JONES
Suite 701
501 Union Street
Nashville, Tennessee 37219
Attorney for Plaintiff/Appellee
JAMES D. KAY, JR.
BRIDGETT A. WOHLPART
Suite 340M, Washington Square Two
222 Second Avenue North
Nashville, Tennessee 37201
Judge:CANTRELL
First Paragraph:
In this negligence case, the trial court granted the plaintiff damages
for lost profits. Because we think the method used for calculating
those damages was flawed, we modify the award.
http://www.tba.org/tba_files/TCA/Forklift_opn.WP6
ERIC G. LAUTENBACH
VS.
ROBBIN L. LAUTENBACH
Court:TCA
Attorneys:
MARY ANNE KEVIL
Bellevue Professional Center
237 Old Hickory Blvd., Suite 201
Nashville, Tennessee 37221-1353
ATTORNEY FOR PLAINTIFF/APPELLEE
CHARLES C. MORROW
Charles C. Morrow & Associates
3221 Nolensville Road, Suite 102
Nashville, Tennessee 37211
ATTORNEY FOR DEFENDANT/APPELLANT
Judge:BUSSART
First Paragraph:
This case involves a post-divorce custody decision in which the lower
court changed custody of a minor child from her mother to her father.
The child's mother has appealed raising three issues. We affirm the
decision of the trial court with regard to each issue.
http://www.tba.org/tba_files/TCA/Lautenbe_opn.WP6
BILL MASON and
JOHN McKNIGHT
VS.
METROPOLITAN DEVELOPMENT
AND HOUSING AGENCY, et al.
Court:TCA
Attorneys:
DAVID L. COOPER
COLUMBA A. MCHALE
1000 Northchase Drive, Suite 110
P. O. Box 749
Goodlettsville, Tennessee 37070-0749
Attorneys for Plaintiffs/Appellants
GEORGE E. BARRETT
217 Second Avenue North
Nashville, Tennessee 37201
Attorney for Defendants/Appellees
Judge:CANTRELL
First Paragraph:
Two employees of the Metropolitan Housing and Development Agency (MDHA)
brought suit against their supervisor, the agency, and the agency's
director, claiming that the supervisor had discriminated against them in
violation of federal and state laws. The trial court dismissed the
claims. We affirm the trial court.
http://www.tba.org/tba_files/TCA/Masonb_opn.WP6
STATE OF TENNESSEE
VS.
GEORGE MATTHEWS
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID ALLEN DOYLE JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
ZOE LAAKSO (sentencing) ELIZABETH B. MARNEY
Assistant Public Defender Assistant Attorney General
117 East Main St., Suite 2C 425 Fifth Ave. N., 2d Floor
Gallatin, TN 37066 Nashville, TN 37243-0493
REGAN L. RUDLAND (on appeal) LAWRENCE RAY WHITLEY
Assistant Public Defender District Attorney General
117 East Main St., Suite 2C
Gallatin, TN 37066 LYTLE ANTHONY JAMES
Assistant District Attorney
113 West Main Street
Gallatin, TN 37066
Judge:WITT
First Paragraph:
The defendant, George Matthews, appeals from his sentence imposed for
evading arrest, a Class E felony, in the Sumner County Criminal Court.
The trial court imposed a sentence of four years at 35 percent as a
Range II offender to be served in the Tennessee Department of Correction
consecutively to a Davidson County conviction. In this direct appeal,
the defendant raises two issues: (1) whether the trial court correctly
sentenced the defendant to serve four years at 35 percent in the
Department of Correction, and (2) whether the trial court properly
ordered the defendant to serve this sentence consecutively to Davidson
County case number 97-I-237. After a review of the record, the briefs
of the parties, and the applicable law, we affirm the sentence.
http://www.tba.org/tba_files/TCCA/Matthewg_opn.WP6
WILLIE J. ODUM
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
WILLIE J. ODOM JOHN KNOX WALKUP
Pro Se Attorney General and Reporter
7475 Cockrill Bend Ind. Rd.
Nashville, TN 37243 MICHAEL J. FAHEY, III
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
RANDALL E. NICHOLS
District Attorney General
FRED BRIGHT
Assistant District Attorney
City-County Building
Knoxivlle, TN 37902
Judge:SMITH
First Paragraph:
The petitioner, Willie J. Odom, appeals the order of the Knox County
Criminal Court summarily dismissing his post-conviction petition without
an evidentiary hearing or appointing counsel. Odom pled guilty in April
1996 to one (1) count of aggravated robbery and received a sentence of
eight (8) years. In January 1998, he filed the present petition
alleging that counsel was ineffective, his guilty plea was not voluntary
and he received an illegal sentence. The trial court dismissed the
petition as barred by the one (1) year statute of limitations. See
Tenn. Code Ann. S 40-30-202(a). After a review of the record before
this Court, we affirm the judgment of the trial court pursuant to Rule
20 of the Tennessee Court of Criminal Appeals.
http://www.tba.org/tba_files/TCCA/Odomwil_ord.WP6
STANLEY POWELL
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
HERSHELL KOGER JOHN KNOX WALKUP
131 N. 1st Street Attorney General and Reporter
P. O. Box 1148
Pulaski, TN 38478 ELIZABETH B. MARNEY
Assistant Attorney General
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243
MIKE BOTTOMS
District Attorney General
RICHARD DUNAVANT
Assistant District Attorney
Giles County Courthouse
Pulaski, TN 38478
Judge:WILLIAMS
First Paragraph:
The petitioner, Stanley Powell, appeals from the trial court's dismissal
of his claim for post-conviction relief. Powell is presently serving
thirteen years as a range II offender in the Department of Correction
for his guilty plea to aggravated kidnaping and aggravated rape on June
27, 1994. The trial court dismissed his post-conviction petition
following a hearing on the merits. After a review of the record, the
briefs of the parties and the applicable law, we affirm the trial
court's dismissal.
http://www.tba.org/tba_files/TCCA/Powellst_opn.WP6
STATE OF TENNESSEE
VS.
HOLLY RALSTON
Court:TCCA
Attorneys:
FOR THE APPELLEE: FOR THE APPELLANT:
J. THOMAS MARSHALL, JR. JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
KATHERINE J. KROEGER ELIZABETH B. MARNEY
Assistant Public Defender Assistant Attorney General
101 South Main Street, Suite 450 2nd Floor, Cordell Hull Building
Clinton, TN 37716 425 Fifth Avenue North
Nashville, TN 37243
JAMES N. RAMSEY
District Attorney General
JANICE G. HICKS
Assistant District Attorney General
127 Anderson County Courthouse
Clinton, TN 37716
Judge:WOODALL
First Paragraph:
In this case, the State appeals as of right from the trial court's
dismissal of the indictment charging the Defendant, Holly Ralston, with
two (2) counts of driving on a revoked license and two (2) counts of
failure to appear in violation of Tennessee Code Annotated section
39-16-609. The trial court granted dismissal of the indictment because
it found that the Defendant's rights to a speedy trial and due process
had been violated by delay in prosecution. After review of the record
and the briefs filed on behalf of the parties, we reverse the judgment
of the trial court and remand this case for further proceedings.
http://www.tba.org/tba_files/TCCA/Ralstonh_opn.WP6
STATE OF TENNESSEE
VS.
ROBERT PATRICK SWYGERT
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
LORRAINE RAYMOND, ESQ. PAUL G. SUMMERS
744 McCallie Avenue, Suite 404 Attorney General & Reporter
Chattanooga, TN 37403
TODD R. KELLEY
Assistant Attorney General
425 Fifth Avenue North
2nd Floor, Cordell Hull Bldg.
Nashville, TN 37243
WILLIAM H. COX, III
District Attorney General
PARKE MASTERSON
Assistant District Attorney
600 Courts Building
Chattanooga, TN 37402
Judge:CLARK
First Paragraph:
Appellant Robert Patrick Swygert appeals as of right from the order of
the Criminal Court of Hamilton County requiring him to pay restitution
in the amount of $500.00 a month for twenty months. For the reasons set
forth below, we remand the case for further proceedings.
http://www.tba.org/tba_files/TCCA/Swyger~1_doc.WP6
STATE OF TENNESSEE
VS.
MASON THOMAS WILBANKS
and STEVE A. WILLIAMS
Court:TCCA
Attorneys:
FOR APPELLANT WILBANKS: FOR THE APPELLEE:
WALTER H. STUBBS JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
554 W. Main St.
Gallatin, TN 37066 KIM R. HELPER
Assistant Attorney General
FOR APPELLANT WILLIAMS: 425 Fifth Ave. N., 2d Floor
CHERYL J. SKIDMORE Nashville, TN 37243-0493
Attorney at Law
130 S. Water Ave. LAWRENCE RAY WHITLEY
Gallatin, TN 37066 District Attorney General
WAYNE HYATT
Asst. District Attorney General
113 W. Main St., 3d Floor
Gallatin, TN 37066-2803
Judge:WITT
First Paragraph:
The defendants, Mason Thomas Wilbanks and Steve A. Williams, appeal from
the sentences imposed by the Sumner County Criminal Court for their
two-week crime spree in the summer of 1997. Wilbanks is presently
serving an effective ten-year sentence in the Department of Correction;
Williams is serving his effective twelve-year sentence. In this direct
appeal, both defendants challenge the manner of service of their
sentences, the imposition of consecutive sentencing, and the restitution
order. Wilbanks challenges the length of his sentences. Following a
review of the record, the briefs of the parties, and the law, we affirm
the sentences as imposed except on the issue of restitution. On the
restitution issue, we reverse the trial court's order as to both
defendants and remand for further consideration consistent with this
opinion.
http://www.tba.org/tba_files/TCCA/Wilbanks_opn.WP6
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