2nd Annual Intellectual Property Law Forum
Presented by the TBA Intellectual Property Law Section.
April 28, 29 - Tennessee Bar Center, Nashville

The program begins April 28 with afternoon presentations on the basics
of intellectual property law. On April 29, a panel of speakers —
including the Hon. David Sams, Chief Judge of the Trademark Trial and
Appeal Board — will address a wide range of advanced topics, primarily
geared to the intellectual property specialist. Ten hours of CLE
credit (including one hour of ethics) will be provided for those who
attend the entire forum. For anyone with an interest in this dynamic
area, it is not an event to be missed.

Today's Opinions: April 20, 2005
Volume 11 — Number 074
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.
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
02 New Opinion(s) from the Tennessee Court of Appeals
09 New Opinion(s) from the Tennessee Court of Criminal Appeals
04 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 or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • 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


GIBBS BROTHERS CONSTRUCTION, INC. v. BROOK HOLLOW GREEN, LLC, NATIONAL
GRANGE MUTUAL INSURANCE COMPANY, CONTINENTAL DEVELOPMENT AND
CONSTRUCTION, INC., NICHOLAS S. PSILLAS, AND MARSHALL COLLIER,
INDIVIDUALLY AND D/B/A P&C CONTRACTORS

Court:TCA

Attorneys:                          

David M. Smythe, Nashville, for the Plaintiff/Appellee Gibbs Brothers
Construction, Inc.

R. Francene Kavin, Brentwood, for Defendant/Appellants Brook Hollow
Green, LLC, National Grange Mutual Insurance Company, Continental
Development, and Defendant Nicholas Psillas.

Defendant Marshall Collier, pro se.

Judge: KIRBY

First Paragraph:

This case is about a construction lien. A real estate developer hired
a contractor to perform paving work on new roads in a subdivision.
After the work was completed, the contractor sent the developer an
invoice for the work done, but the developer did not pay. Eventually,
the developer paid a portion of the invoice. When no further payments
were made, the contractor filed a lien on the developer's roadway. The
contractor then sued the developer to enforce the lien. After the suit
was filed, the developer asserted that the contractor's workmanship
was poor and that, as a result, the pavement on the roadway was
defective. The trial court found that the contractor had a valid lien
and awarded a judgment against the developer and the developer's
surety. The trial court also awarded the contractor prejudgment
interest. The developer appeals, asserting that the road was public
and not subject to lien, that the trial court made erroneous
evidentiary rulings, that the trial court erred in finding that a
variance from the listed measurements was permissible under the
contract, that it should have been awarded a setoff against the
contractor's judgment, and that the contractor should not have been
awarded prejudgment interest. We affirm, finding that the contractor's
lien was valid and enforceable, that the trial court did not err in
its evidentiary rulings, that the developer failed to prove damages to
setoff, and that the trial court did not abuse his discretion in the
award of prejudgment interest.

http://www.tba.org/tba_files/TCA/2005/gibbsbroscon.pdf

SANDRA JOYCE HAYES v. WILLIAM TYSON, ET AL.

Court:TCA

Attorneys:                          

Glenwood P. Roane, Sr., Memphis, Tennessee, for the appellant, Sandra
Joyce Hayes.

Richard D. Bennett and Louis Jay Miller, Memphis, Tennessee, for the
appellees, William Tyson, N. D. Sanders and First Baptist Church
Chelsea.

Judge: FARMER

First Paragraph:

The trial court dismissed Plaintiff's causes of action for lack of
subject matter jurisdiction. We affirm.

http://www.tba.org/tba_files/TCA/2005/hayessandraj.pdf

STATE OF TENNESSEE v. RONALD LYNN CHATMAN
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Joe R. Johnson, Springfield, Tennessee, for the appellant, Ronald L.
Chatman.

Paul G.Summers, Attorney General and Reporter; Elizabeth B.Marney,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and Dent Morriss, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Ronald Lynn Chatman, was indicted for the offense of
especially aggravated kidnapping, a Class A felony. Following a jury
trial, Defendant was convicted of the lesser included offense of
facilitation of especially aggravated kidnapping, a Class B felony.
The trial court sentenced Defendant to nine years imprisonment as a
Range I, standard offender. In his appeal, Defendant challenges the
sufficiency of the convicting evidence, and argues that the trial
court erred in not granting Defendant's request for a probated
sentence. After a thorough review of the record, we affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/chatmanronl.pdf

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/2005/chatmanronl_con.pdf

TONEY L. CONN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Toney L. Conn, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Victor S. Johnson, III., District Attorney
General; and Pamela Anderson, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The petitioner appeals the summary dismissal of his petition for
post-conviction relief, arguing that he should have been appointed
post-conviction counsel to assist him with his petition. We conclude
that the petitioner alleges a colorable claim for relief under the
less stringent standards afforded to a pro se petitioner and that the
petitioner's request for counsel should have been granted.
Accordingly, we reverse the dismissal of the petition and remand the
case to the post-conviction court for the appointment of counsel.

http://www.tba.org/tba_files/TCCA/2005/conntoneyl.pdf

RICKY EARLS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

N. Andy Myrick, Jr., Fayetteville, Tennessee, for the appellant, Ricky
Earls.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Mike McCown, District Attorney General;
and Weakley E. Barnard, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Ricky Lynn Earls, was convicted by a jury of four
counts of forgery, Class E felonies, and one count of theft under
$500, a Class A misdemeanor. The trial court subsequently merged two
of the forgery counts into the remaining two counts. After a hearing,
the trial court sentenced the Defendant as a career offender to an
effective sentence of twelve years. The Defendant's sentence was
affirmed on direct appeal. See State v. Ricky Lynn Earls, No. M2001-
00112-CCA-R3-CD, 2002 WL 1586286 (Tenn. Crim. App., Nashville, July
18, 2002). The Defendant subsequently filed for post-conviction relief
alleging ineffective assistance of counsel. After a hearing, the trial
court denied relief. This appeal followed. The sole issue before us is
whether the Defendant suffered from the ineffective assistance of
counsel due to defense counsel's failure to file timely a motion for
new trial. We find that the Defendant is entitled to relief on the
grounds of ineffective assistance of counsel. Accordingly, we reverse
the trial court's ruling and remand this cause with instructions that
the trial court grant the Defendant a delayed appeal.

http://www.tba.org/tba_files/TCCA/2005/earlsricky.pdf

RICKY LYNN EARLS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Richard A. Cawley (at trial) and Hayley E. Fults (on appeal),
Shelbyville, Tennessee, for the appellant, Ricky Lynn Earls. Ricky
Lynn Earls, Pro Se.

Paul G. Summers, Attorney General and Reporter Elizabeth B. Marney,
Assistant District Attorney General; Mike McCown, District Attorney
General; and Michael Randles, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Ricky Lynn Earls, was convicted by a jury of theft of
property over $1,000, a Class D felony. See Tenn. Code Ann. S
39-14-105(3). The trial court subsequently sentenced the Defendant as
a career offender to twelve years in the Department of Correction. The
Defendant's conviction was affirmed by this Court on direct appeal.
See State v. Ricky Lynn Earls, No. M2001- 00063-CCA-R3-CD, 2001 WL
1285927 (Tenn. Crim. App., Nashville, Oct. 25, 2001). The Defendant
subsequently filed for post-conviction relief, alleging ineffective
assistance of counsel. After a hearing the trial court denied relief.
This appeal followed. We remand this cause for further findings by the
trial court.

http://www.tba.org/tba_files/TCCA/2005/earlsrickylynn.pdf

STATE OF TENNESSEE v. THEODORE F. HOLDEN

Court:TCCA

Attorneys:                          

Ross E. Alderman, District Public Defender; Emma Rae Tennent (on
appeal) and Patrick Frogge (at trial), Assistant Public Defenders, for
the appellant, Theodore F. Holden.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney
General; and Bret Gunn and Angie Dalton, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The defendant appeals his burglary conviction and argues that the
trial court erred in finding that he "opened the door" to
cross-examination regarding his prior burglary convictions. Upon
thorough review, we conclude that defense counsel's pattern of
questioning did not open the door to crossexamination on prior
burglary convictions initially ruled inadmissible. We hold that the
trial court erred in reversing itself and allowing cross-examination
as to the convictions; therefore, we reverse the judgment of the trial
court and remand for a new trial.

http://www.tba.org/tba_files/TCCA/2005/holdentheof.pdf

JEFFERY LEE MILLER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

William F. Kroeger, Springfield, Tennessee, for the appellant, Jeffery
Lee Miller.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; John WesleyCarney, Jr., District Attorney
General; and Helen O.Young, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Jeffery Lee Miller, was convicted by a jury in the
Montgomery County Circuit Court of premeditated first degree murder.
The petitioner received a sentence of life imprisonment in the
Tennessee Department of Correction without the possibility of parole.
Subsequently, the petitioner filed a petition for post-conviction
relief, alleging that he received the ineffective assistance of
counsel. After a hearing, the post-conviction court denied the
petition. The petitioner now appeals. Upon our review of the record
and the parties' briefs, we affirm the judgment of the post-conviction
court.

http://www.tba.org/tba_files/TCCA/2005/millerjefferyl.pdf

STATE OF TENNESSEE v. ROBERT LEONARD MOSLEY
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Terry J. Leonard, Camden, Tennessee, for the appellant, Robert Leonard
Mosley.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and Steven L. Garrett, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

On appeal, the defendant challenges: (1) the sufficiency of the
evidence; (2) the sentence imposed, in light of Blakely v. Washington;
and (3) the denial of alternative sentencing. Following our review, we
conclude that there was sufficient evidence presented, such that a
reasonable jury could reject the theory of diminished capacity and
find the defendant guilty of the convicted offenses. Further, it
appears that the enhancement factors were applied errantly in light of
Blakely. Therefore, we reduce the sentence to the presumptive minimum
and remand the matter for a determination of the defendant's
suitability for alternative sentencing.

http://www.tba.org/tba_files/TCCA/2005/mosleyrobleo.pdf

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/2005/mosleyrobleo_dis.pdf

STATE OF TENNESSEE v. ROBERT WAYNE PRYOR

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Robert
Wayne Pryor.

Paul G.Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; Mike McCown, District Attorney General;
and Michael Randles and Ann Filer, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Robert Wayne Pryor, was convicted by a jury of theft of
property valued at over $1,000 but less than $10,000, a class Dfelony.
See Tenn. Code Ann. S 39-14-105(3). The trial court subsequently
sentenced the Defendant to three and one-half years in the Department
of Correction. In this direct appeal, the Defendant challenges the
sufficiency of the evidence and contends that his sentence is
excessive. Finding the evidence insufficient to support the jury
verdict, we reverse and vacate the Defendant's conviction and dismiss
the charge.

http://www.tba.org/tba_files/TCCA/2005/pryorrobertw.pdf

CHRISTOPHER DUWAN ROBERTSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

David M. Hopkins, Nashville, Tennessee, for the Appellant, Christopher
Duwan Robertson.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Roger Moore, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Christopher Duwan Robertson, appeals the dismissal by
the Davidson County Criminal Court of his petition for post-conviction
relief. After review of the record, we affirm.

http://www.tba.org/tba_files/TCCA/2005/robertscduwan.pdf

Proration of County Property Tax Rates to Coincide with County's
Fiscal Year

Date: April 18, 2005

Opinion Number: 05-047

http://www.tba.org/tba_files/AG/2005/op47.pdf

Proposed Amendment to House Bill 476 (Senate Bill 853) Relative to
Engine Compression Brakes on Trucks or Truck Tractors

Date: April 19, 2005

Opinion Number: 05-048

http://www.tba.org/tba_files/AG/2005/op48.pdf

County School Board Employee on County Election Commission

Date: April 19, 2005

Opinion Number: 05-049

http://www.tba.org/tba_files/AG/2005/op49.pdf

State Liability For Injury, Accident or Sickness Caused by Exposure to
Environmental Tobacco Smoke in Public Places

Date: April 19, 2005

Opinion Number: 05-050

http://www.tba.org/tba_files/AG/2005/op50.pdf

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