Opinion FlashJune 11, 2003Volume 9 — Number 105 Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion. This Issue (IN THIS ORDER):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel STATE OF TENNESSEE v. HAROLD L. GREEN Court:TSC Attorneys: James M. Webster, Oak Ridge, Tennessee, for the appellant, Harold L. Green. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Elizabeth B. Marney, Assistant Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: We granted Harold L. Green's application pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure to determine the duration of the trial court's authority to entertain a motion to withdraw a guilty plea. On October 8, 1999, Green pleaded guilty to driving while under the influence of an intoxicant and was, thereafter, sentenced by the Criminal Court of Anderson County. On November 5, 1999, Green filed a motion to withdraw the previously entered guilty plea; the trial court granted the motion. The State appealed pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. After granting the State's request for appeal, the Court of Criminal Appeals held that the trial court was without jurisdiction to consider the motion to withdraw the guilty plea. We find that the trial court's jurisdiction to hear and decide the motion to withdraw the guilty plea continued for thirty days after the plea was entered. Accordingly, we reinstate the judgment of the trial court and remand the cause for any further proceedings that may be appropriate. http://www.tba.org/tba_files/TSC/GreenHarold.wpd ORDER: http://www.tba.org/tba_files/TSC/haroldgreenreheardenyOrder.wpd IMAGE OUTDOOR ADVERTISING, INC. v. CSX TRANSPORTATION, INC., et al. Court:TCA Attorneys: Lawrence P. Leibowitz, Melissa A. Ashburn, Knoxville, Tennessee, for the appellant, Lamar Advertising Company. Ralph W. Mello, Brentwood, Tennessee, for the appellees: Image Outdoor Advertising, Inc. and Ralph W. Mello. Judge: COTTRELL First Paragraph: These cases were consolidated pursuant to Tenn. R. App. P. 16(b). Both involve a dispute regarding the permitting of outdoor advertising billboards pursuant to the Tennessee Billboard Regulation and Control Act of 1972. Tenn. Code Ann. S 54-21-101 et seq. Image Outdoor Advertising, Inc. sought declaratory and injunctive relief against Lamar Advertising Company, Infinity Outdoor, and CSX Transportation, Inc. following the denial of its permit application by the Tennessee Department of Transportation. The trial court found no private right of action exists to enforce the Tennessee Billboard Act and that Image had failed to exhaust the administrative remedy statutorily required as a prerequisite to its seeking declaratory relief. We affirm the trial court's dismissal of Image's complaint for failure to state a claim upon which relief could be granted. The other case involves allegations that counsel for Image breached his fiduciary duty to Lamar, a former client, by using confidential client information in forming Image, a competitor sign business, and then representing Image. The trial court dismissed Lamar's complaint for failure to state a claim upon which relief could be granted. We affirm. http://www.tba.org/tba_files/TCA/Imag.wpd DONITA PIPER, et al. v. CURTIS MIZE Court:TCA Attorneys: Rodger N. Bowman, Clarksville, Tennessee, for the appellants, Donita Piper and Lori Turner. Christopher J. Pittman, Clarksville, Tennessee, for the appellee, Curtis Mize. Judge: CAIN First Paragraph: Plaintiffs in this case are citizens of Montgomery County. Defendants, Paul Avallone, Wayne Gill, Curtis Mize and Yvonne Van Der Touw are also citizens of Montgomery County who, in varying degrees, were alleged to be involved in the printing and distribution of a newspaper known as The Rattler. Defendant Avallone was the sole writer, publisher and editor of each issue of The Rattler. Defendant Mize is a businessman who allowed copies of the October 5, 2000 edition of The Rattler to be placed on the counter at his place of business for free distribution. The trial court granted summary judgment in favor of Defendant Mize and finalized the judgment as to Mize under Tennessee Rules of Civil Procedure 54.02. Plaintiffs appeal, and we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/PiperDonita.wpd STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. NANCY KATHERINE JOHNSON SHORTT, et al. Court:TCA Attorneys: Michael Savage, Livingston, Tennessee, for the appellant, Nancy Katherine Johnson Shortt. Paul G. Summers, Attorney General & Reporter, and Elizabeth C. Driver, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services. Judge: CAIN First Paragraph: This case concerns the question of what constitutes reasonable efforts to reunify dependent and neglected children with the birth parents prior to the termination of parental rights. The trial court held that reasonable efforts were made. This Court affirms the termination as to both parents' rights. http://www.tba.org/tba_files/TCA/StateNancyShortt.wpd TRIPLE ROCK, LLC d/b/a COMMERCIAL TEN, et al. v. A.C. RAINEY, et al. Court:TCA Attorneys: Thomas J. Drake, Jr., Nashville, Tennessee, for the appellant, Tripple Rock, LLC d/b/a Commercial Ten, Perry Dale, and Earl Young, Jr. John I. Harris, III, Nashville, Tennessee, for the appellees, Albert C. Rainey, Miller Kimbrough, MGK Realty Services, Inc., Gary Lufkin and Q-Change Ltd., LLC. Jaimee S. Wilson, Murfreesboro, Tennessee, for the appellee, Mark Moore. Judge: CAIN First Paragraph: Triple Rock LLC, d/b/a Commercial Ten, Perry Dale, and Earl H. Young, Jr., sued A.C. Rainey and others for damages allegedly resulting from the Defendants' misappropriation, conversion, or negligent handling of moneys allegedly owed to the limited liability company. The trial court granted partial summary judgment in favor of Defendant, Attorney Mark Moore, on his Motion to Dismiss for failure to state a claim. Then, upon Plaintiffs' Motion for Summary Judgment and the response of the remaining Defendants thereto, the trial court entered summary judgment in favor of the Defendants, A.C. Rainey, Miller Kimbrough, MGK Realty, and Mary Snyder. From these two orders Plaintiffs appeal. We affirm. http://www.tba.org/tba_files/TCA/TripleRock.wpd STATE OF TENNESSEE v. ROBERT LEE FOX Court:TCCA Attorneys: Melanie R. Snipes, Chattanooga, Tennessee, for the Appellant, Robert Lee Fox. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Helena Walton Yarbrough, Assistant Attorney General; William H. Cox III, District Attorney General; and Christopher David Poole, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Robert Lee Fox, appeals the sentencing decision of the Hamilton County Criminal Court. Fox entered a Tennessee Rule of Criminal Procedure 11(e)(1)(B) "open" plea to conspiracy to commit first degree murder and was sentenced to twenty-two years in the Department of Correction. On appeal, Fox argues that the sentence is improper because (1) it is disparate to the sentence received by his co-defendant and (2) four enhancement factors were erroneously applied. After review, we find no error and affirm the decision of the trial court. http://www.tba.org/tba_files/TCCA/FoxRobertLee.wpd STATE OF TENNESSEE v. HOWARD KEITH LIGHTSEY Court:TCCA Attorneys: Glenn R. Funk, and Cynthia M. Fort, Nashville, Tennessee, for appellant, Howard Lightsey. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; Ron Davis, District Attorney General; and Matt Colvard, Assistant District Attorney General, for appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Howard Keith Lightsey, was indicted by the Williamson County Grand Jury, on one count of possession of cocaine with intent to sell or deliver, one count of possession of marijuana, and one count of drug paraphernalia. The appellant entered a plea agreement and pled guilty to one count of simple possession of cocaine, one count of possession of marijuana and one count of possession of drug paraphernalia. Following a sentencing hearing on February 19, 2002, the trial court ordered another sentencing hearing for April 19, 2002. At that sentencing hearing the court sentenced the appellant to eleven months twenty-nine days on each count. This sentence was suspended except for twenty days and an aggregate fine of $1,150. The appellant now brings this appeal claiming that the trial erred in denying him full probation. We find the judgment of the trial court should be affirmed. http://www.tba.org/tba_files/TCCA/lightsey.wpd CLINTON WAYNE LYNCH v. STATE OF TENNESSEE Court:TCCA Attorneys: Clinton Wayne Lynch, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Victor S. Johnson, District Attorney General; and Lisa Naylor, Assistant District Attrorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The petitioner, Clinton Wayne Lynch, appeals from the order of the trial court denying his petition requesting forensic DNA analysis of evidence related to the investigation and prosecution which resulted in the petitioner's conviction for second degree murder entered upon his plea of guilty in 1986. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lynchcw.wpd STATE OF TENNESSEE v. GIESELA ROBINSON Court:TCCA Attorneys: H. Marshall Judd, Cookeville, Tennessee, for the appellant, Giesela Robinson. Paul G. Summers, Attorney General and Reporter; Renee W.Turner, Assistant Attorney General; Bill Gibson, District Attorney General; and David Patterson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant pled guilty to one count of facilitation of the possession of over .5 grams of cocaine with the intent to sell or deliver, a Class C felony. In accordance with her plea agreement, she was sentenced to a term of six years, with the manner of service of the sentence to be determined by the trial court. After a sentencing hearing, the trial court ordered her sentence to be served in the Department of Correction. In this appeal, the Defendant argues that the trial court erred by not granting her probation or some other form of alternative sentence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Robinsng.wpd STATE OF TENNESSEE v. CARVIN LAMONT THOMAS Court:TCCA Judge: TIPTON DISSENTING OPINION http://www.tba.org/tba_files/TCCA/thomasD_dis.wpd STATE OF TENNESSEE v. ABEL CABERRA TORRES Court:TCCA Attorneys: Dan T. Bryant, District Public Defender (on appeal and at trial); and Robert Boyd and Scott Grissom, Assistant District Public Defenders (at trial), for the appellant, Abel Caberra Torres. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; and Dale Potter, District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Abel Caberra Torres, was convicted of attempted especially aggravated robbery, two counts of attempted second degree murder, aggravated assault, and attempted aggravated assault. The trial court merged the last two offenses into the attempted second degree murder convictions and ordered consecutive sentences of twelve years for each offense, for an effective sentence of thirty-six years. In this appeal of right, the defendant asserts (1) that the evidence was not sufficient; (2) that the trial court erred by failing to suppress his statements to police; (3) that the trial court erred in its instructions to the jury; and (4) that the sentence was excessive. The judgments of conviction are affirmed. Because of the misapplication of enhancement factors, each of the sentences are modified to ten years. The cause is remanded to the trial court for further findings on the consecutive sentencing issue. http://www.tba.org/tba_files/TCCA/Torres.wpd JOHN W. WILCOX v. STATE OF TENNESSEE Court:TCCA Attorneys: John W. Wilcox, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; Jerry N. Estes, District Attorney General; and William W. Reedy, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner appeals the denial of his petition for post-conviction relief. The petitioner contends that he received ineffective assistance of counsel and that the State engaged in a vindictive prosecution and failed to perform testing on evidence which would have supported his claim of self- defense. We conclude that the evidence does not preponderate against the findings of the post- conviction court. We affirm the post-conviction court's denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/WilcoxJW.wpd STATE OF TENNESSEE v. RAYMOND WRITER Court:TCCA Attorneys: George Todd East and T. Martin Browder, Jr., Kingsport, Tennessee, for appellant, Raymond Writer. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; Greeley Wells, District Attorney General; and Teresa M. Smith, Assistant District Attorney General, for appellee, State of Tennessee. Judge: SMITH First Paragraph: A Sullivan County jury convicted the defendant, Raymond Writer, of rape of a child. The trial court accordingly sentenced the defendant to serve twenty-five years for this conviction at 100%, as mandated by statute. The defendant now brings this direct appeal of his conviction, challenging (1) the trial court's decision to allow the prosecution to impeach defense witness Gwen Bunnell, (2) the trial court's decision to allow the testimony of two physicians who repeated the victim's statements identifying the defendant as the perpetrator, (3) the trial court's decision to allow the prosecution to introduce the rebuttal testimony of Amy Harris, and (4) the cumulative effect of these testimonies as unduly prejudicial. For the following reasons, we find that none of his allegations merit relief. http://www.tba.org/tba_files/TCCA/writerraymond.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/writerr0_con.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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