Opinion Flash

September 28, 2004
Volume 10 — Number 187

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
01 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)
02 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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


STATE OF TENNESSEE v. GREGORY ROBINSON
WITH DISSENTING OPINION AND APPENDIX

Court:TSC

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Joseph F. Whalen, Associate Solicitor General;
William L. Gibbons, District Attorney General; and Patience R. Branham
and Paula Wulff, Assistant District Attorneys General, for the
appellant/appellee, State of Tennessee.

Joseph S. Ozment and Steffen G. Schreiner, Memphis, Tennessee (at
trial); and Edmund L. Carey, Jr., Nashville, Tennessee, and Robert C.
Brooks, Memphis, Tennessee (on appeal), for the appellee/appellant,
Gregory Robinson.

Judge: DROWOTA

First Paragraph:

We granted the State's application for permission to appeal to
determine whether the Court of Criminal Appeals erred by reversing the
defendant's conviction for premeditated first degree murder and his
sentence of death.  Upon review, we hold that the Court of Criminal
Appeals erred in reversing the defendant's conviction and sentence. 
In particular, we conclude that the trial court did not err by failing
to instruct the jury on facilitation and solicitation or by permitting
the medical examiner to display the victim's cleaned and reconstructed
skull as a demonstrative aid during his testimony; that the
prosecution did not present inconsistent theories and evidence in the
separate trials of the defendant and co-defendant Prentiss Phillips;
and that the sentence of death is not disproportionate considering the
circumstances of the crime and the defendant.  Having reinstated the
defendant's conviction and sentence, we have also reviewed and
considered all other errors alleged by the defendant and conclude that
none warrants relief.  With respect to issues not herein specifically
addressed, we affirm the decision of the Court of Criminal Appeals. 
Relevant portions of that opinion are published hereafter as an
appendix.  Accordingly, the judgment of the Court of Criminal Appeals
is reversed in part, affirmed in part, and the judgment of the trial
court is reinstated.

http://www.tba.org/tba_files/TSC/robinsongregory_opn.wpd

DISSENTING OPINION
http://www.tba.org/tba_files/TSC/robinsongregory_dis.wpd

APPENDIX
http://www.tba.org/tba_files/TSC/robinsongregory_apx.wpd

Board Of Professional Responsability Of The Supreme Court Of Tennessee
Formal Ethics Opinion 2004-F-149

Court:TSC - Rules

First Paragraph:

Guidance is provided regarding what general types of claims or
representations as included within attorney advertising are false or
misleading in violation of Tennessee Rule of Professional Conduct 7.1.

http://www.tba.org/tba_files/TSC_Rules/2004-F-149.pdf

Board Of Professional Responsability Of The Supreme Court Of Tennessee
Formal Ethics Opinion 2004-F-150

Court:TSC - Rules

First Paragraph:

Guidance is provided concerning the ethical obligations of attorneys
who receive confidential documents of adverse parties which were
inadvertently sent or disclosed.

http://www.tba.org/tba_files/TSC_Rules/2004-F-150.pdf

PATRICK BEAUDREAU, ET AL. v. LARRY HILL PONTIAC/OLDSMOBILE/GMC, INC.

Court:TCA

Attorneys:                          

Gordon Ball, Knoxville, Tennessee, for the appellant, Patrick
Beaudreau, on behalf of himself and all others similarly situated.

William A. Young, John W. Butler, and Jeffrey R. Thompson, Knoxville,
Tennessee, for the appellee, Larry Hill Pontiac/Oldsmobile/GMC, Inc.

Judge: SUSANO

First Paragraph:

This is a class action lawsuit filed by a consumer, Patrick Beaudreau,
against a car dealer, Larry Hill Pontiac/Oldsmobile/GMC, Inc. ("Hill
Pontiac").  Beaudreau purchased an automobile from Hill Pontiac and
the purchase was financed through General Motors Acceptance
Corporation ("GMAC").   Beaudreau alleges, inter alia, that Hill
Pontiac violated the Tennessee Consumer Protection Act ("the TCPA")
and the Tennessee Trade Practices Act ("the TTPA") in that it failed
to reveal to Beaudreau that it had an arrangement with GMAC by the
terms of which Hill Pontiac received a portion of the interest rate
charged to Beaudreau.  The trial court dismissed Beaudreau's claims. 
Beaudreau appeals.  We affirm.

http://www.tba.org/tba_files/TCA/beaudreaupat.wpd

MARK DION DAVIS v. TONYA SMITH DAVIS

Court:TCA

Attorneys:                          

Randy Hillhouse, Lawrenceburg, Tennessee, for the appellant, Tonya
Smith Davis.

Christopher V. Sockwell, Lawrenceburg, Tennessee, for the appellee,
Mark Dion Davis.

Judge: KOCH

First Paragraph:

This appeal concerns a dispute over the custody of a child who is less
than three years old.  Within four months after the parents' divorce
in the Chancery Court for Lawrence County, the father filed a petition
to modify the permanent parenting plan because the mother was
obstructing and discouraging his visitation with the child.  Following
a bench trial, the trial court determined that the wife's post-divorce
conduct amounted to a material change in circumstances and that the
parents should have equal parenting time with the child.  The trial
court also relieved the father of his child support obligation in
light of the change in the permanent parenting plan.  The mother has
appealed both the change in the permanent parenting plan and the
termination of her child support.  We affirm the trial court.

http://www.tba.org/tba_files/TCA/davismarkd.wpd

BOBBY MacBRYAN GREEN v. JOHNSON CITY REGIONAL PLANNING COMMISSION

Court:TCA

Attorneys:                          

Bobby MacBryan Green, pro se Appellant.

James H. Epps, IV, Johnson City, Tennessee, for the Appellee Johnson
City Regional Planning Commission.

Judge: SWINEY

First Paragraph:

Bobby MacBryan Green ("Plaintiff") and Michael May ("May") own
adjoining land within the city limits of Johnson City.  May's tract of
land was subdivided into two lots as a minor subdivision without
formal approval from the Johnson City Regional Planning Commission
(the "Commission").  Plaintiff challenged the approval of the minor
subdivision before the Commission.  Relying on legal advice from the
city attorney, the Commission voted unanimously not to take any action
on Plaintiff's request that the approval of the minor subdivision be
rescinded.  Plaintiff appealed to the Trial Court which upheld the
decision of the Commission after concluding the Commission's refusal
to take any action on Plaintiff's request was not illegal, arbitrary
or capricious.  We affirm.

http://www.tba.org/tba_files/TCA/greenbobbymac.wpd

JAMES H. SIBLEY, ET AL. v. W. KEITH McCORD, ET AL.

Court:TCA

Attorneys:                          

Gene A. Stanley, Jr., Knoxville, Tennessee, for the appellants James
H. Sibley, S & M Body Shop, Inc., and Truck Sales & Service, Inc.

Darryl G. Lowe, Knoxville, Tennessee, for the appellees, W. Keith
McCord, Weaver & Troutman, P.C., and McCord & Troutman, P.C.

Judge: CLEMENT

First Paragraph:

Plaintiffs, former clients of Keith McCord, Weaver & Troutman, P.C.,
seek an accounting, recovery of misappropriated funds, if any, and
compensatory damages.  Plaintiffs hired McCord and his firm to
represent them in defense of federal and state tax claims and
deposited upwards of $500,000 with the firm to facilitate payment of
the disputed claims.  The chancellor dismissed the action on summary
judgment holding that the plaintiffs' conversion claim was barred by
the three year statute of limitations and that the claim for an
accounting was barred by the doctrine of judicial estoppel.  We
affirm.

http://www.tba.org/tba_files/TCA/sibleyjamesh.wpd

DONAVAN EDWARD DANIEL  v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Kent F. Gearin, Martin, Tennessee (on appeal) and Joseph P. Atnip,
District Public Defender; and Colin Johnson, Assistant Public Defender
(at trial) for the appellant, Donavan Edward Daniel.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Thomas A. Thomas, District
Attorney General; and Allen Strawbridge, Assistant District Attorney
General, for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Donavan Edward Daniel, filed a pro se petition for
post-conviction relief alleging, as amended, that his trial counsel
provided ineffective assistance of counsel by failing (1) to raise the
legality of Petitioner's detention as an issue in his motion to
suppress; (2) to demonstrate a particularized need for expert services
and timely present the affidavit of the proposed expert to the trial
court; and (3) to request a mistrial or curative instruction when two
prospective jurors stated during voir dire that they were familiar
with Petitioner's juvenile record and family background.  Following an
evidentiary hearing, the post-conviction court denied Petitioner's
request for post- conviction relief.  After a thorough review of the
record, we affirm the judgment of the post- conviction court.

http://www.tba.org/tba_files/TCCA/danieldonavane.wpd

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