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.

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
05 New Opinion(s) from the Tennessee Court of Appeals
06 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Judicial Ethics Opinion(s)
00 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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