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Today's Opinions: August 26, 2005
Volume 11 — Number 164
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.
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
17 New Opinion(s) from the Tennessee Court of Appeals
06 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


STATE OF TENNESSEE v. KIMBERLY JEANNINE COX

Court: TSC

Attorneys:

Roger E. Nell, District Public Defender (on appeal), and Russel A.
Church, Assistant Public Defender (at trial and on appeal),
Clarksville, Tennessee, for the appellant, Kimberly Jeannine Cox.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Richard H. Dunavant, Assistant Attorney General;
John Carney, District Attorney General; and Arthur Bieber, Assistant
District Attorney General, for the Appellee, State of Tennessee.

Judge: BIRCH

We accepted review of this cause under the Tennessee Rules of
Appellate Procedure, Rule 11, in order to address a question properly
preserved and certified pursuant to the provisions of the Tennessee
Rules of Criminal Procedure, Rule 37(b)(2)(i).The question, as
certified, is:Whether the consent given to search the defendant,s
motel room is consistent with the requirements of the United States
Constitution and the Constitution of the State of Tennessee? Because
we hold that during the course of a lawful traffic stop the defendant
voluntarily consented to a search of her motel room, we find the trial
court was correct in denying the motion to suppress the evidence
obtained as a result of that search.Accordingly, we affirm the
judgment of the Court of Criminal Appeals.

http://www.tba.org/tba_files/TSC/2005/coxk82605.pdf

I N THE MATTER OF: A.L.N. AND B.T.N. 
CORRECTED OPINION ORIGINALLY ISSUED 8/25/2005

Court: TCA

Attorneys:

J. Stephen Mills, Nashville, Tennessee, for the appellant, J.N.

Larry L. Crain, Brentwood, Tennessee, for the appellee, M.I.

Nick Perenich, Nashville, Tennessee, guardian ad litem.

Judge: CLEMENT

Father appeals the termination of his parental rights to his two minor
children, arguing thatPetitioner, the children,s maternal grandmother,
did not show by clear and convincing evidence that Father had
abandoned his children.Father also asserts that because there is no
transcript oraudio recording of the trial court,s hearing this court
is unable to conduct an adequate appellate review. We agree with
Father and find that due to the lack of a transcript or audiotape of
theevidence presented at the termination hearing, we are unable to
determine whether clear and convincing evidence supported the
termination of his parental rights.Consequently, Father hasbeen
deprived of an effective review on appeal.We therefore vacate the
judgment of the trial court terminating Father,s parental rights and
remand for further proceedings.

CORRECTED OPINION
http://www.tba.org/tba_files/TCA/2005/aln82605.pdf

IN RE AUDREY S. & VICTORIA L. 
WITH CONCURRING OPINION

Court: TCA

Attorneys:

Linda M. Anderson, Nashville, Tennessee, for the appellant, Jamie F.


Jacqueline B. Dixon, Nashville, Tennessee, for the appellees, Jason
L., Kelly L., and Christina B. 

Susie P. McGowan, Nunnelly, Tennessee, and Jennifer L. Evans,
Springfield, Tennessee, Guardians ad Litem for Audrey S. and Victoria
L., respectively.

Judge: KOCH

This appeal involves the termination of the parental rights of a
biological mother who is serving a lengthy prison sentence.Following
years of drug abuse, criminal conduct, periodic incarceration, and
inconsistent attention to the needs of her two children, the mother
pled guilty to charges of especially aggravated kidnaping and
aggravated robbery and was sentenced to serve concurrent terms of
fifteen and twelve years in prison.Following her incarceration, the
fathers of both children filed petitions to terminate her parental
rights.The juvenile court consolidated these petitions with the
mother,s petition for visitation and appointed guardians ad litem for
the children.The guardians ad litem later filed a joint petition to
terminate the mother,s parental rights, and the fathers voluntarily
dismissed their termination petitions.Following a bench trial, the
juvenile court entered orders terminating the mother,s parental rights
to both children on three grounds.The mother has appealed. We have
determined that the record contains clear and convincing evidence to
support terminating the mother,s parental rights on two of the three
grounds relied upon by the court and to support the court,s conclusion
that terminating the mother,s parental rights is in the children,s
best interests.

http://www.tba.org/tba_files/TCA/2005/audreys82605.pdf

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/2005/audreys_con82605.pdf

IN RE C.L.M., M.M.M., AND S.D.M. 

Court: TCA

Attorneys:

Nathan T. Brown, Dickson, Tennessee, for the appellant, A.H.S.

Paul G. Summers, Attorney General and Reporter; Douglas Earl Dimond,
Sr. Counsel, for the appellee, State of Tennessee.

Judge: CAIN

Mother appeals the Dickson County Juvenile Court,s Order terminating
her parental rights to three children, C.L.M., M.M.M., and
S.D.M.Father does not challenge the trial court,s termination of his
parental rights.We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCA/2005/clm82605.pdf

CUMBERLAND COUNTY BANK v. DEE DOWNS EASTMAN, ET AL.

Court: TCA

Attorneys:

Edward M. Graves, III, Cookeville, Tennessee, for the appellants, Dee
Downs Eastman, and Dee Downs Eastman Revocable Trust.

Joe M. Looney, Crossville, Tennessee, for the appellee, Cumberland
County Bank.

Judge: SUSANO

The Cumberland County Bank (,the bank0/00) filed an unlawful detainer
action in general sessions court against Dee Downs Eastman.The bank
sought to obtain possession of real property conveyed to it following
the bank,s foreclosure of deeds of trust securing promissory notes
executed by Ms. Eastman.The general sessions court entered judgment
for possession ,for which a Writ of Possession may issue.0/00Ms. Eastman
appealed to the trial court and, along with the Dee Downs Eastman
Revocable Trust (,the trust0/00), filed in that court a counterclaim that
essentially challenged the validity of the foreclosure sale by which
the bank acquired its title to the subject property.The trial court
granted the bank summary judgment as to all issues.Ms. Eastman and the
trust appeal. We affirm.

http://www.tba.org/tba_files/TCA/2005/cumberland82605.pdf

JOHN DOLLE, ET AL. v. MARVIN FISHER, ET AL. 

Court: TCA

Attorneys:

Ross Brent Gray, Sevierville, Tennessee, for the Appellant Marvin
Fisher. 

Steven E. Marshall, Sevierville, Tennessee, for the Appellees John
Dolle and Christina Dolle.

Judge: SWINEY

John and Christina Dolle (,Plaintiffs0/00) entered into a contract with
Fisher Builders, Inc., for the construction of a single family
residence.Plaintiffs eventually obtained a judgment against Fisher
Builders, Inc., for breach of contract and breach of
warranty.Plaintiffs, judgment against Fishers Builders, Inc. was for
$61,102, plus interest and costs.After the judgment against Fisher
Builders, Inc., became final, Plaintiffs filed this lawsuit against
Marvin Fisher, the president, secretary, sole director, and sole
stockholder of Fisher Builders, Inc.Plaintiffs claimed, inter alia,
that Fisher Builders, Inc., was a sham corporation, the corporate veil
should be pierced, and Fisher should be held personally liable for the
judgment against his corporation.The Trial Court agreed and entered a
judgment against Fisher personally.We affirm.

http://www.tba.org/tba_files/TCA/2005/dollej82605.pdf

CLYDE EDWARDS v. SARAH ANN EDWARDS 
WITH DISSENTING OPINION

Court: TCA

Attorneys:

Lois B. Shults-Davis, Erwin, Tennessee, for the appellant, Clyde
Edwards. 

Lisa D. Rice, Elizabethton, Tennessee, for the appellee, Sarah Ann
Edwards. 

Judge: SUSANO

This is a post-divorce case.Clyde Edwards (,Husband0/00) appeals the
trial court,s denial of his motion to modify his alimony obligation to
his former wife, Sarah Ann Edwards (,Wife0/00). Husband,s original motion
was premised on the fact that Wife was living with her adult daughter
and son-in-law.We affirm.

http://www.tba.org/tba_files/TCA/2005/edwardsc82605.pdf

DISSENTING OPINION
http://www.tba.org/tba_files/TCA/2005/edwardsc_dis82605.pdf

PATRICIA HAZLERIG v. MILLINGTON TELEPHONE COMPANY, INC. 

Court: TCA

Attorneys:

Paul E. Lewis, Millington, for appellant Millington Telephone
Company, Inc. 

Patricia Hazlerig, pro se, appellee.

Judge: KIRBY

This case involves the doctrine of res judicata.The plaintiff
telephone customer paid a fee to thedefendant telephone company to
block calls to 900 numbers from being made from her phone. Despite
this, charges for 900 calls continued to appear on the customer,s
bill.The customerdisputed this, and the telephone company cut off her
telephone service.The customer filed a claim against the telephone
company in general sessions court for breach of contract and
thetelephone company filed a counterclaim for the unpaid charges for
the 900 number calls.The general sessions court ruled in favor of the
telephone company, and the customer appealed to thecircuit court.The
circuit court ruled in favor of the customer.The customer then filed a
separate lawsuit against the telephone company in chancery court,
seeking injunctive relief to require thetelephone company to reinstate
her telephone service.The telephone company answered, and later sought
to amend its answer to plead the defense of res judicata.The chancery
court refusedto allow amendment of the answer to assert the
defense.The chancery court then ruled in favor of the telephone
customer.The telephone company appeals, asserting that the chancery
courterred in not allowing amendment of its answer to assert the
defense of res judicata.We affirm, finding that the principle of res
judicata did not apply and the chancery court did not abuse
itsdiscretion in declining to permit amendment of the answer.

http://www.tba.org/tba_files/TCA/2005/hazlerigp82605.pdf

SHERYL HEGGS v. WILSON INN NASHVILLE-ELM HILL, INC.

Court: TCA

Attorneys:

Scott Daniel and Melanie Lepp, Murfreesboro, Tennessee, for the
appellant, Sheryl Heggs.

John T. Horton, Nashville, Tennessee, for the appellee, Wilson Inn
Nashville-Elm Hill, Inc.

Judge: KOCH

This appeal involves a dispute between a hotel and a guest who slipped
on a wet tile floor as she was making her way to an elevator on one of
the hotel,s guest floors.The guest filed a negligence action against
the hotel in the Circuit Court for Davidson County, and the hotel
answered and filed a motion for summary judgment.The trial court
granted the hotel,s motion after determining, as a matter of law, that
the hotel had satisfied its duty to the guest by setting out a yellow
,wet floor0/00 warning sign and that the guest was fifty percent or more
at fault for her injuries.The guest has appealed.We have determined
that the hotel has not demonstrated that it is entitled to a judgment
as a matter of law and, therefore, we vacate the summary judgment.

http://www.tba.org/tba_files/TCA/2005/heggss82605.pdf

DONALD GREG HOPPER v. BETTY J. MOLING

Court: TCA

Attorneys:

Kevin Carter, Lexington, TN, for Appellant

J. Brandon McWherter, Jackson, TN, for Appellee

Judge: HIGHERS

The plaintiff, an unlicensed home improvement contractor, entered into
an agreement with thedefendant/homeowner to make certain improvements
to her existing home.Shortly after the plaintiff left the job site,
the defendant/homeowner began to experience several problemsassociated
with the plaintiff,s work.The defendant/homeowner paid to have the
defects repaired and/or completed.The plaintiff filed a petition
against the defendant/homeowner to enforce amaterialman,s lien.The
defendant/homeowner filed a counter-complaint seeking damages for
breach of contract, breach of implied warranties, fraud, and
violations of the TennesseeConsumer Protection Act.At the conclusion
of the bench trial, the chancellor held that the plaintiff,s conduct
amounted to constructive fraud, thereby voiding the contract; the
plaintiff wasonly entitled to recover the cost of his labor and
materials under quantum meruit; and the defendant/homeowner was
entitled to damages, attorney,s fees, and discretionary
costs.Theplaintiff appealed to this Court to contest the chancellor,s
inclusion of certain costs in the damage award, the limitation of his
quantum meruit recovery, the finding of constructive fraud,and the
award of attorney,s fees to the defendant/homeowner.The
defendant/homeowner appealed the chancellor,s exclusion of certain
costs from the damage award and the method usedby the chancellor in
calculating the damages.We affirm in part and vacate in part.

http://www.tba.org/tba_files/TCA/2005/hopperd82605.pdf

THE CITY OF HUMBOLDT, ET AL. v. J. R. MCKNIGHT, ET AL.

Court: TCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Kate Eyler, Deputy Attorney General; Kevin
Steiling, Deputy Attorney General, for the State DefendantAppellant.

Jerry D. Kizer, Jr., Patrick W. Rogers, Jackson, Tennessee, for the
Defendants-Appellants, Gibson County, Gibson County Commission and its
Members and Gibson County Board of Education and its Members.

Valerie B. Speakman, Memphis, Tennessee, for the Defendants-Appellants
Gibson County Special School District and Its Members.

L.L. Harrell, Jr., Trenton, Tennessee, for the Defendants-Appellants,
Trenton Special Schools District and Bradford Special School District.

Randall G. Bennett, Tennessee School Boards Association, Nashville,
Tennessee, for the Defendants/Appellants J.R. McKnight, et al.

Lewis R. Donelson, Angie C. Davis, Memphis, Tennessee, for the
Plaintiffs-Appellees, The City of Humboldt and Mayor and Aldermen of
the City of Humboldt.

Judge: COTTRELL

This lawsuit is about the operation and funding of public schools
educating the children in Gibson County.Since 1981 the county has not
operated a county school system, and all K-12 students have been in
schools operated by the municipal and special school systems.The
county ceased operating schools when a 1981 Private Act created the
Gibson County Special School District.This arrangement was ratified by
a 2002 Public Act stating that where all K-12 students are eligible to
be served by city and special school systems, the county is not
required to operate a separate county school system or have a county
board of education.The trial court held that the 2002 Act was
unconstitutional as special legislation and that the 1981 Act, though
constitutional, was illegal.It ordered the dissolution of the Gibson
County Special School District and that the county undertake operation
of the schools not included in the other municipal or special school
systems within the county.The court further found that the county was
required to levy a countywide property tax to fund the local share of
education costs and divide the proceeds among all school systems in
the county.We hold that the 2002 Act does not violate Article XI,
Section 8 of the Tennessee Constitution and, consequently, there is no
obligation for the county to operate a county school system.We also
conclude that the facts do not establish any disparity of educational
opportunity among the school systems in the county and, consequently,
the principles and holdings in the Small Schools cases do not apply to
require a specific organizational structure and do not preclude the
method used in Gibson County.Finally, we conclude the county is not
required to levy a countywide property tax for schools.Accordingly, we
reverse the trial court,s judgment.

http://www.tba.org/tba_files/TCA/2005/humboldt82605.pdf

MICHAEL E. INGLE, ET AL. v. AARON LILLY CONSTRUCTION, LLC

Court: TCA

Attorneys:

J. Wesley Edens, Bristol, Tennessee, for the appellant, Aaron Lilly
Construction, LLC.

Timothy W. Hudson, Bristol, Tennessee, for the appellees, Michael E.
Ingle and wife, Melissa R. Ingle.

Judge: SUSANO

Michael E. Ingle and his wife, Melissa R. Ingle (,the plaintiffs0/00),
purchased a house from Aaron Lilly Construction, LLC (,the
defendant0/00).The defendant had constructed the residence and the
plaintiffs were the initial purchasers.The plaintiffs began to
experience problems with their home and filed suit against the
defendant on several theories, including a violation of the Tennessee
Consumer Protection Act (,the TCPA0/00).The trial court, following a
bench trial, found that the plaintiffs were entitled to recover, but
not under the TCPA.The defendant appeals, arguing that the trial court
erred in admitting the testimony of one of the plaintiffs, expert
witnesses.They also claim that the evidence preponderates against the
amount of damages found by the trial court.The plaintiffs, on the
other hand, challenge the trial court,s ruling with respect to their
claim under the TCPA.We affirm.

http://www.tba.org/tba_files/TCA/2005/inglem82605.pdf

RABIA KAFOZI, ET AL. v. WINDWARD COVE, LLC.

Court: TCA

Attorneys:

John R. Anderson and Robert S. Grot, Chattanooga, Tennessee, for the
Appellant, Windward Cove, LLC.

John E. Eberly, Chattanooga, Tennessee, for the Appellees, Rabia
Kafozi and Audry C. Kafozi.

Judge: SWINEY

Rabia Kafozi and Audry C. Kafozi (,Plaintiffs0/00) signed an installment
sales contract to purchase real property from Windward Cove, LLC
(,Defendant0/00).Plaintiffs made some, but not all of the payments as
scheduled.Defendant declared a default and then sold the real property
to another party.Plaintiffs sued Defendant seeking, among other
things, either specific performance or the return of payments made by
them.The case was tried and the Trial Court held, inter alia, that the
installment sales contract did not set a due date and, therefore,
Plaintiffs never were in default. Defendant appeals claiming the Trial
Court erred in interpreting the installment sales contract.We reverse,
and dismiss Plaintiffs, claims.

http://www.tba.org/tba_files/TCA/2005/kafozir82605.pdf

SHERRI MORGAN LADUE v. BRIAN CHARLES LADUE

Court: TCA

Attorneys:

John A. Hoag, Knoxville, Tennessee, for the appellant, Sherri Morgan
LaDue.

Thomas F. diLustro, Knoxville, Tennessee, for the appellee, Brian
Charles LaDue.

Judge: SUSANO

Sherri Morgan LaDue (,Wife0/00) alleged in the trial court that her
husband, Brian Charles LaDue (,Husband0/00), had viciously and repeatedly
attacked and beaten her in violation of an order of protection.The
trial court found that Husband had committed 19 violations of the
order, and that each violation constituted an act of criminal
contempt.The court determined that the appropriate punishment for each
violation was the maximum period of incarceration ^ ten days in jail.
The court imposed 19 consecutive sentences, i.e., 190 days in jail,
effective June 9, 2005.In its final judgment, the trial court directed
that ,a judge who may sentence [Husband] in the future should not have
the discretion to give 190 days credit for time served for any of the
same 190 days for which [Husband] is now being sentenced for criminal
contempt.0/00Husband appeals.We modify the judgment of the trial court.As
modified, the judgment is affirmed.

http://www.tba.org/tba_files/TCA/2005/ladues82605.pdf

MOLD-TECH USA, LLC v. HOLLEY PERFORMANCE PRODUCTS, INC.

Court: TCA

Attorneys:

M. Andrew Pippenger, Chattanooga, Tennessee, for the appellant, Holley
Performance Products, Inc.

Thomas L. N. Knight, Chattanooga, Tennessee, and Rebecca L. Hicks,
Dayton, Tennessee, for the appellee, Mold-Tech USA, LLC.

Judge: SUSANO

Mold-Tech USA, LLC (,the Supplier0/00) brought this action against Holley
Performance Products, Inc. (,the Manufacturer0/00) for breach of
contract, seeking to recover the cost of component parts purchased by
the Supplier in connection with its contract with the
Manufacturer.Following a bench trial, the court found that the
Manufacturer had breached the contract, and the court awarded the
Supplier $79,436.87 in damages.In addition, the court awarded the
Supplier prejudgment interest at the rate of 4% per annum.The
Manufacturer appeals, arguing that the trial court erred in finding
for the Supplier because the Supplier failed to comply with the
pertinent provisions of the Tennessee version of the Uniform
Commercial Code.The Manufacturer also contends that the Supplier is
not entitled to prejudgment interest.We affirm.

http://www.tba.org/tba_files/TCA/2005/moldtech82605.pdf

CAROL BRACKEN ORTEN v. THADDEUS CHARLES ORTEN 
WITH DISSENTING OPINION

Court: TCA

Attorneys:

Joe R. Judkins, Wartburg, Tennessee, for the Appellant Thaddeus
Charles Orten. 

Virginia A. Schwamm and Donna H. Smith, Knoxville, Tennessee, for the
Appellee Carol Bracken Orten.

Judge: SWINEY

Carol Bracken Orten (,Wife0/00) sued Thaddeus Charles Orten (,Husband0/00)
for a divorce.During the course of discovery, Husband refused to
provide certain financial information as he felt the information to
be irrelevant.After Husband failed to appear without explanation at
the second Trial Management Conference, the Trial Court entered a
default judgment against Husband as a sanction for his
actions.Husband,s attorney immediately withdrew from the case and the
Trial Court then proceeded to distribute the marital property and
award Wife alimony and child support based solely on Wife,s
uncontested testimony.Husband secured new counsel and filed a motion
to alter or amend the judgment, or for a new trial.The Trial Court
denied Husband,s motion and this appeal followed.We affirm. 

http://www.tba.org/tba_files/TCA/2005/ortenc82605.pdf

DISSENTING OPINION
http://www.tba.org/tba_files/TCA/2005/ortenc_dis82605.pdf

HUAN OUYANGv. XIAOHUI CHEN 

Court: TCA

Attorneys:

Xiaohui Chen, pro se, defendant/appellant 

Dennis J. Sossaman, Memphis, for plaintiff/appellee Huan Ouyang 

Judge: KIRBY

This is a divorce case.The parties were declared divorced in February
2003.The divorce decreereserved issues regarding their minor child,
property valuation and distribution, alimony, and attorney,s
fees.After a hearing on the reserved issues, the trial court granted
the wife alimonyand designated her the primary residential parent of
their child, set child support, and distributed the marital
property.The husband appealed the trial court,s decision on all of the
reservedissues. We affirm the trial court,s decision, with
modification on the issue of the husband,s residential parenting time.

http://www.tba.org/tba_files/TCA/2005/ouyangh82605.pdf

STEPHANIE TODD WATSON v. TIMOTHY JAMES WATSON 

Court: TCA

Attorneys:

Harold F. Johnson, Jackson, for defendant/appellant Timothy James
Watson 

Betty Stafford Scott, Jackson, and Mary Jo Middlebrooks, Jackson, for
plaintiff/appellee Stephanie Todd Watson 

Judge: KIRBY

This case is about parental relocation and child custody. The parents
of a minor child divorced in 2001.Both parents lived in Lexington,
Tennessee, and, at the time of the divorce, agreed to joint
custody.The child alternated daily between the parents, homes.In 2002,
the mother remarried and moved to Murfreesboro, Tennessee.The mother
petitioned the court to designate her as primary residential parent
and allow her to move the child with her to Murfreesboro.The father
opposed the petition and asked the court to designate him as the
primary residential parent. The trial court found that it was in the
child,s best interest to move to Murfreesboro with the mother, and
designated her as primary residential parent.The father appealed.We
affirm, finding that the evidence does not preponderate against the
trial court,s decision to designate mother as primary residential
parent and permit the child to move with her

http://www.tba.org/tba_files/TCA/2005/watsons82605.pdf

REGINALD D. BALDON v. STATE OF TENNESSEE 

Court: TCCA

Attorneys:

Rebecca S. Mills, Ripley, Tennessee, for the appellant, Reginald D.
Baldon.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Tracey A. Brewer, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner challenges the denial of his post-conviction petition,
which asserted various instances of ineffective assistance of
counsel.Upon review, we conclude that the evidence does not
preponderate against the post-conviction court,s findings; therefore,
we affirm.

http://www.tba.org/tba_files/TCCA/2005/baldonr82605.pdf

C.S.O. NORVELL, JR. v. DAVID MILLS, WARDEN

Court: TCCA

Attorneys:

C.S.O. Norvell, Jr., Henning, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and James W. Freeland, Jr., Assistant District Attorney
General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, C.S.O. Norvell, Jr., filed a petition for writ of habeas
corpus, attacking his conviction for second degree murder in the
Tipton County Circuit Court.The petition was summarily dismissed by
the trial court without an evidentiary hearing.Petitioner has
appealed, arguing that his conviction is void because he received an
illegal sentence.After a thorough review, we affirm the judgment of
the trial court.

http://www.tba.org/tba_files/TCCA/2005/norvellc82605.pdf

LLOYD EARL WILLIAMS v. TONY PARKER, WARDEN 

Court: TCCA

Attorneys:

Lloyd Earl Williams, Tiptonville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; and C. Phillip Bivens, District Attorney
General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Lloyd Earl Williams, filed his second petition for writ of
habeas corpus relief in the Lake County Circuit Court, attacking
judgments of conviction entered against him in the Washington County
Criminal Court.In 1993, Petitioner was convicted and sentenced in
abstentia, following a jury trial, of sale of cocaine, one count of
possession of cocaine with intent to sell, and one count of conspiracy
to sell cocaine, with an effective sentence of fifty-four (54)
years.He was taken into custody in 2001.A petition for post-conviction
relief was dismissed for not being filed within the applicable statute
of limitations.His first petition for writ of habeas corpus attacked
the convictions based upon his being tried and sentenced in
abstentia.Dismissal of that petition was affirmed on appeal.See Lloyd
Earl Williams v. State, No. W2003-02348-CCA-R3-HC, 2004 WL 948370
(Tenn. Crim. App., at Jackson, April 29, 2004), perm. to appeal denied
(Tenn. September 2, 2004).In this second petition for habeas corpus
relief, Petitioner alleges that he is entitled to habeas corpus relief
because the sentences were imposed, both as to length and consecutive
service, by a judge and not the jury in violation of Blakely v.
Washington, 542 U.S. 296, 125 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)
and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.
2d 435 (2000).The trial court summarily dismissed the petition without
an evidentiary hearing.Upon review, we affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TCCA/2005/williamsl82605.pdf

WILSON H. TUCKER v. STEPHEN DOTSON, WARDEN

Court: TCCA

Attorneys:

Wilson H. Tucker, Pro se.

Paul G. Summers, Attorney General and Reporter, and Rachel E. Willis,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Wilson H. Tucker, filed a petition for writ of habeas
corpus in the Hardeman County Circuit Court.The trial court summarily
dismissed the petition, and the petitioner timely appealed. Upon
review of the record and the parties, briefs, we affirm the judgment
of the habeas corpus court. 

http://www.tba.org/tba_files/TCCA/2005/tuckerw82605.pdf

STATE OF TENNESSEE v. THOMAS ALLEN FRANKS, II

Court: TCCA

Attorneys:

Kelly S. Johnson, Knoxville, Tennessee, for the appellant, Thomas
Allen Franks, II.

Paul G. Summers, Attorney General & Reporter; David E. Coenen,
Assistant Attorney General;and Kevin Allen, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The defendant, Thomas Allen Franks, II,was convicted of aggravated
burglary, aggravatedassault, evading arrest, and resisting arrest.The
trial court imposed consecutive sentences of ten years for aggravated
burglary and six years for aggravated assault.There were
concurrentsentences of eleven months and twenty-nine days each for
misdemeanor evading arrest and resisting arrest.The effective sentence
is, therefore, sixteen years.In this appeal as of right, thesingle
issue presented for review is whether the trial court erred by
declining to grant a continuance or other relief when the state filed
notice of its intent to use impeaching convictionsjust before
the beginning of the trial.The judgments are affirmed. 

http://www.tba.org/tba_files/TCCA/2005/frankst82605.pdf

CHAD J. POWELL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Chad J. Powell, Pro Se, Mountain City, Tennessee.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General;H. Greeley Wells, Jr., District Attorney
General; and B. Todd Martin, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: HAYES

On June 23, 2000, a judgment by default was entered against the
Appellant, Chad J. Powell, bythe Sullivan County Criminal Court
declaring him to be a Motor Vehicle Habitual Offender (MVHO).See Tenn.
Code Ann. S 55-10-613(a) (2003).In September 2004, Powell filed
amotion to set aside the MVHO judgment pursuant to Tenn. R. Civ. P.
60.As grounds for his motion, Powell alleged various procedural errors
including noncompliance with Tenn. R. Civ. P.58.Powell,s motion to
vacate the default judgment was denied by the trial court.After
review, we conclude that Powell,s issues are without merit.Moreover,
we conclude that Powell,smotion, which was filed in September of 2004,
was not within a ,reasonable time,0/00 as required by Tenn. R. Civ. P.
60.02.Accordingly, the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/powellc82605.pdf

Definition of "Public Servant" in Relation to Official Misconduct
Offense Statutes

Date: August 24, 2005

Opinion Number: 05-129

http://www.tba.org/tba_files/AG/2005/op129.pdf

Commitment to State Custody Following Juvenile Probation Revocation 

Date: August 24, 2005

Opinion Number: 05-130

http://www.tba.org/tba_files/AG/2005/op130.pdf

Certification Requirements for Police Officers 

Date: August 24, 2005

Opinion Number: 05-131

http://www.tba.org/tba_files/AG/2005/op131.pdf

Lawyers as Lobbyists 

Date: August 25, 2005

Opinion Number: 05-132

http://www.tba.org/tba_files/AG/2005/op132.pdf

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