June 21, 2000 Volume 6 -- Number 096 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. This Issue (IN THIS ORDER):   00 New Opinion(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 09 New Opinion(s) from the Tennessee Court of Appeals 07 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 New Opinion(s) from the Tennessee Attorney General (PDF format) 00 New Judicial Ethics Opinion(s) 00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Lucian T. Pera Editor-in-Chief, TBALink APOLLO SHORES COMMUNITY AND MAINTENANCE, INC. v. LARRY ALFRED LYNN, et al. Court:TCA Attorneys: Carol Ann Baron, Dayton, Tennessee, for the appellants, Larry Alfred Lynn and Joy Carol Lynn. Rebecca L. Hicks, Dayton, Tennessee, for the appellee, Apollo Shores Community and Maintenance, Inc. Judge: SWINEY First Paragraph: This appeal arises from a dispute over restrictive covenants prohibiting house trailers from a subdivision in Rhea County, Tennessee. The subdivision homeowners' association brought suit to enjoin the Defendants from affixing a double-wide mobile home to their property in the subdivision. The Trial Court granted a temporary restraining order directing the Defendants to cease operations in affixing the mobile home to a foundation and completing installation of the home. http://www.tba.org/tba_files/TCA/AppolloShores.wpd DORIS KAY ROBISON ASHBY v. JERRY DONALD ASHBY Court:TCA Attorneys: Laura A. Keeton, Huntingdon, Tennessee, for the Appellant, Jerry Donald Ashby. Doris Kay Robison Ashby, Appellee, Pro Se (made no appearance) Judge: LILLARD First Paragraph: This is a divorce case. The trial court found that the husband had kept a large sum of cash in the marital home, found it to be marital property and awarded the wife a portion of it. The parties lived in a home given to them by the husband's mother; the trial court awarded the wife half of the value of it. The husband appeals the trial court's award of a portion of the cash, as well as the valuation and division of the home. We affirm, finding that there is evidence in the record sufficient to support the trial court's findings. http://www.tba.org/tba_files/TCA/AshbyDR.wpd CECIL F. AYERS v. MINDA ELIZABETH AYERS Court:TCA Attorneys: Eugene G. Douglass, Jr., Bartlett, Tennessee, for the Appellant, Cecil F. Ayers. Clifford M. Cole, Memphis, Tennessee, for the Appellee, Minda Elizabeth Ayers. Judge: LILLARD First Paragraph: This is a divorce case. The wife was awarded the marital residence, and the husband was awarded his house painting business. Sole custody of the parties' two minor children was awarded to the wife, and the husband was awarded supervised visitation. The trial court denied the husband's request for an award representing the value of personal property the wife allegedly sold or gave away. The wife was awarded her attorney's fees. The husband appeals the trial court's valuation of his business, the denial of his request for the value of his alleged missing personal property, the order mandating that his visitation with the children be supervised and the award of wife's attorney's fees. We affirm, finding substantial evidence in the record to support the trial court's decision. http://www.tba.org/tba_files/TCA/AyersCF.wpd DESIGN CONCEPT CORPORATION v. RALPH PHELPS et ux. Court:TCA Attorneys: Linda J. Hamilton Mowles, John K. King, and M. Edward Owens, Jr., Knoxville, Tennessee, for the appellant, Design Concept Corporation. Charles C. Burks, Jr., Knoxville, Tennessee, for the appellees Ralph Phelps and wife, Jackie Lee Phelps. Judge: SUSANO First Paragraph: The plaintiff is the owner of a landlocked tract of land. It brought this action to condemn a right-of- way to a public road. Following a hearing, the trial court entered an order (1) directing a jury of view to consider all property adjacent to the plaintiff's property, including that of non-parties, to determine the location of an appropriate right-of-way for the plaintiff; (2) requiring the plaintiff -- in the event the property of a non-party was selected as the location of the right-of-way -- to name that owner as a party-defendant; and (3) instructing the jury of view to limit the right-of-way selected by it to a width of no more than 40 feet. The plaintiff filed this interlocutory appeal pursuant to Tenn. R. App. P. 9. http://www.tba.org/tba_files/TCA/DesignConcept.wpd RUDY PAGE, ROGER PAGE & DONALD HANAFEE v. ROBERT LYNN FUCHS AND WIFE, BRENDA ANN FUCHS Court:TCA Attorneys: W. Collins Bonds, KIZER, BONDS & HUGHES, Milan, Tennessee, for Appellants, Fuchs Sam J. Watridge, Humboldt, for Appellees, Page, Page & Hanafee Judge: HIGHERS First Paragraph: This appeal involves a dispute over the existence of an easement over Defendants Fuchs' land. Plaintiffs Page and Hanafee brought suit seeking an easement by necessity or a prescriptive easement, as well as damages for Defendants' alleged inducement of breach of contract. The court below found that Plaintiffs had a prescriptive easement across Defendants' property, but did not find Defendants liable for damages. Defendants appeal. http://www.tba.org/tba_files/TCA/pagerudy.wpd ANTONIO L. SWEATT v. FRED RANEY, et al. Court:TCA Attorneys: Antonio L. Sweat, Pro se Paul G. Summers, Attorney General and Reporter; Arthur Crownover II, Assistant Attorney General and Reporter Judge: CRAWFORD First Paragraph: An inmate in correctional facility filed a civil rights case for alleged violation of his constitutional rights, primarily for transferring the inmate from one facility to equally-rated facility. The trial court dismissed the case for failure to state a claim upon which relief can be granted. The inmate has appealed. http://www.tba.org/tba_files/TCA/sweattant.wpd HOMER ERNEST WEEKS, III v. KRISTINA LEA CORBITT Court:TCA Attorneys: Sandra G. Olive, Knoxville, Tennessee for the appellant, Kristina Lea Corbitt. Charles W. Swanson and Jason H. Long, Knoxville, Tennessee, for the appellee, Homer Ernest Weeks, III. Judge: SUSANO First Paragraph: This is a post-divorce proceeding regarding the custody of Homer Ernest Weeks, IV (DOB: March 23, 1990) ("Ernie"). Homer Ernest Weeks, III ("Father") sought increased co-parenting time with, and greater decision-making authority with respect to, his son. Kristina Lea Corbitt ("Mother") counterclaimed for sole custody. The trial court dissolved the joint custody agreement that had been incorporated into the parties' divorce judgment and instead designated each parent as the sole decision-maker regarding specific areas of the child's life. The court also decreed an increase in Father's co-parenting time to one week out of every 21 days and further decreed that the co-parenting schedule would change to a two-week/two-week rotation between the parties at the end of five years. http://www.tba.org/tba_files/TCA/WeeksHE.wpd FELIX WILKEY, et al. v. RHEA COUNTY, TENNESSEE, et al. Court:TCA Attorneys: William G. McPheeters and Rebecca L. Hicks, Dayton, Tennessee, for the appellants, Felix Wilkey and Bruce Ballard. William A. Lockett and Michael A. Kent, Chattanooga, Tennessee, for the appellees, Rhea County, Tennessee, and Rhea County Board of Education. Judge: SUSANO First Paragraph: The plaintiffs, Felix Wilkey and Bruce Ballard ("the buyers"), brought this action against Rhea County, and the Rhea County Board of Education (collectively "the County"), seeking rescission of a contract to purchase real property. The buyers had purchased a parcel of real estate known as the Walden Ridge School property from the County at public auction. After the sale, the buyers discovered that, prior to the sale, the County had conveyed a portion of the advertised property to a third party. http://www.tba.org/tba_files/TCA/WilkeyF.wpd PERRY H. YOUNG v. STATE OF TENNESSEE Court:TCA Attorneys: Appellant is pro se Meredith Devault, Assistant Attorney General, Nashville for the appellee Judge: GODDARD First Paragraph: In February 1998, plaintiff-appellant, pro se, filed a suit in Hamilton County Circuit Court against the State of Tennessee averring that the four complaints that he filed in 1996 in Hamilton County Chancery Court pertaining to his sentencing in his criminal cases and the revocation of his parole were unlawfully dismissed in 1996 by the Chancellor for lack of subject matter jurisdiction. He appeals from the circuit court's order granting the state's motion to dismiss on the grounds of lack of subject matter jurisdiction, insufficiency of service of process, and failure to state a claim upon which relief could be granted. We affirm the trial court's dismissal. http://www.tba.org/tba_files/TCA/youngper.wpd PAUL BARNETT v. STATE OF TENNESSEE WITH CONCURRING OPINION Court:TCCA Attorneys: Paul Barnett, Mountain City, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Assistant Attorney General, and Joe C. Crumley, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner Paul Barnett pled guilty to one count of Class D felony burglary and one count of Class D felony theft. Petitioner subsequently filed a pro se petition for habeas corpus relief or, in the alternative, a motion to correct/amend sentence. Thereafter, the trial court summarily dismissed the petition/motion. Petitioner challenges that dismissal. The judgment of the trial court is reversed and this matter is remanded for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/barnettp_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/BarnettpC_con.wpd STATE OF TENNESSEE v. SHEILA KAYE COOPER Court:TCCA Attorneys: Michael W. Ritter, Oak Ridge, Tennessee, for the appellant Sheila Kaye Cooper. Paul G. Summers, Attorney General and Reporter, Peter M. Coughlan, Assistant Attorney General, James N. Ramsey, District Attorney General, and Jan Hicks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant Sheila Kaye Cooper was convicted in a jury trial of one count of aggravated robbery and she was subsequently sentenced as a Range I standard offender to a term of eight years. Defendant challenges her conviction, raising the following issues: (1) whether the evidence was sufficient to support her conviction; and (2) whether the trial court erred when it defined the term "violence" in response to a question from the jury. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/coopersk.wpd JACKIE WILLIAM CROWE v. STATE OF TENNESSEE Court:TCCA Attorneys: C. Christopher Brown (on appeal) and Jeffrey L. Cunningham (on appeal and at trial), Athens, Tennessee, for the appellant, Jackie William Crowe. Paul G. Summers, Attorney General & Reporter, Marvin S. Blair, Jr., Assistant Attorney General, and William Reedy, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: In this appeal of the trial court's denial of his petition for post-conviction relief, the petitioner, Jackie William Crowe, who was convicted of two counts of rape and two counts of incest, asserts that he was denied effective assistance of counsel. He also argues that the trial judge was biased. Because the petitioner received effective assistance of counsel at trial and was not prejudiced by his appellate counsel's performance, and because there is insufficient evidence of bias on the part of the trial judge, the judgment is affirmed. http://www.tba.org/tba_files/TCCA/crowe.wpd STATE OF TENNESSEE v. CLIFFORD DOUGLAS PEELE Court:TCCA Attorneys: Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant Clifford Douglas Peele (on appeal); Bob McD. Greene, Johnson City, Tennessee, for the appellant Clifford Douglas Peele (on plea at trial); and H. R. Fallin, Mountain City, Tennessee, for the appellant Clifford Douglas Peele (on motion at trial). Paul G. Summers, Attorney General and Reporter, Elizabeth B. Marney, Assistant Attorney General, Joe C. Crumley, Jr., District Attorney General, David Crockett, Asssistant District Attorney General, and Michael LaGuardia, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant Clifford Douglas Peele pled guilty to first degree murder, second degree burglary, and grand larceny. Defendant subsequently filed a motion to withdraw his guilty plea on the ground that the sentence had not yet been imposed for the first degree murder conviction. The trial court denied the motion and imposed a life sentence for the first degree murder conviction. Defendant subsequently filed a second motion to withdraw his guilty plea on the ground that his counsel had provided ineffective representation. The trial court denied the second motion. Defendant seeks to appeal the trial court's denial of his motion to withdraw his guilty plea. This appeal is dismissed. http://www.tba.org/tba_files/TCCA/peelecd.wpd STATE OF TENNESSEE v. ALVIN B. TATE Court:TCCA Attorneys: Steven E. Farese, Jr., Ashland, Mississippi, attorney for appellant, Alvin B. Tate. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Tara B. Hinkle, Assistant Attorney General, William L. Gibbons, District Attorney General, and Stephen Jones, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: The appellant was convicted of driving under the influence, third offense. In this direct appeal, the appellant challenges the sufficiency of the convicting evidence, the constitutionality of his initial stop by the police, and the trial court's failure to grant a mistrial resulting from opinion testimony by a police officer witness. Finding no reversible error, we affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/TATEAL.wpd STATE OF TENNESSEE v. FRANK TATE Court:TCCA Attorneys: Brett B. Stein, Memphis, Tennessee, for the appellant, Frank Tate. Paul G. Summers, Attorney General & Reporter, Kim Helper, Assistant Attorney General, William Edward Gibson, District Attorney General, Phyllis Gardner, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: The appellant was convicted of driving under the influence, third offense. In this direct appeal, the appellant challenges the sufficiency of the convicting evidence, the constitutionality of his initial stop by the police, and the trial court's failure to grant a mistrial resulting from opinion testimony by a police officer witness. Finding no reversible error, we affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/TATEF.wpd JACK MAXIE WELCH v. STATE OF TENNESSEE Court:TCCA Attorneys: Stephen Scofield, Dyersburg, Tennessee, for the appellant, Jack Maxie Welch. Paul G. Summers, Attorney General & Reporter, Mark E. Davidson, Assistant Attorney General, C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: In this post-conviction appeal, Jack Maxie Welch claims counsel at his second degree murder trial was ineffective for failing to investigate and present evidence of his alleged diminished capacity. The lower court found that Welch failed to carry the burden of proving his claim, and on appellate review, the evidence does not preponderate against that determination. Accordingly, we affirm the lower court's denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/WELCHJM.wpd PLEASE FORWARD THIS E-MAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! See the intrsuctions at the beginning of this edition of Opinion Flash. JOIN TBALink! 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