Opinion Flash

June 11, 2003
Volume 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):
01 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
04 New Opinion(s) from the Tennessee Court of Appeals
08 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

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.

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.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


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!
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 THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi


HomeContact UsPageFinderWhat's NewHelp
© Copyright 2003 Tennessee Bar Association