Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts and the TN Attorney General.
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Document Name :COXVF.OPN.WP6 Court :TCA JAMES R. McKOON, Baker, Donelson, Bearman & Caldwell, Chattanooga, for Appellant. PAUL CAMPBELL, JR., Campbell & Campbell, Chattanooga, for Appellee. First Paragraph: This is an appeal from the judgment of the trial court sustaining a motion for summary judgment in favor of Pennsylvania National Insurance Company, appellant's uninsured motorist carrier, and dismissing the appellant's complaint. We reverse the judgment of the trial court. URL:http://www.tba.org/tba_files/TCA/COXVF.OPN.WP6 Document Name :DOWNING.OPN.WP6 Court :TCA JAMES L. HARRIS Nashville, Tennessee Attorney for Appellant MICHAEL W. EDWARDS Hendersonville, Tennessee Attorney for Appellee First Paragraph: Plaintiff, Betty Ann Downing, is the sister of Charles O. Brinkley ("Decedent"), who died of AIDS on February 2, 1994, in San Francisco, California. At the time of his death, Decedent had a $15,000 life insurance policy, under which his son, Eric Brinkley, was named as beneficiary. The crux of Plaintiff's complaint is that she paid Decedent's burial expenses in reliance on Defendant's statements indicating that he intended to pay them from the insurance proceeds. The Defendant refused to pay such expenses after he received the insurance funds. The action was originally brought in the General Sessions court for Sumner County, where, following a trial on the merits, judgment was rendered in favor of Plaintiff in the amount of $5,230.00. URL:http://www.tba.org/tba_files/TCA/DOWNING.OPN.WP6 Document Name :GENERAL.OPN.WP6 Court :TCA JERRY C. SHELTON, Lyell, Seaman & Shelton, Nashville, Attorney For Defendant/Appellant Claude Ramsey, Assessor of Property for Hamilton County, Tennessee. CHARLES W. BURSON, Attorney General and Reporter SEAN P. SCALLY, Assistant Attorney General Attorneys For Defendant/Appellant Tennessee State Board of Equalization. WILLIAM R. BUZO, Pro Hac Vice, Lexington, Kentucky, H. BUCKLEY COLE, Baker, Donelson, Bearman & Caldwell, Nashville, Attorneys for Plaintiff/Appellee. First Paragraph: General Oils Company ("plaintiff") filed suit in the Chancery Court of Davidson County against the Assessor of Property for Hamilton County ("Hamilton County Assessor") and the Tennessee State Board of Equalization ("Board of Equalization") seeking judicial review of the decision by the Assessment Appeals Commission ("AAC") of the Board of Equalization that for tax assessment purposes plaintiff's petroleum storage tanks located in Hamilton County were real property. The chancellor reversed the AAC, holding that the tanks were personal property. On appeal Hamilton County Assessor and Board of Equalization present one issue for our consideration: URL:http://www.tba.org/tba_files/TCA/GENERAL.OPN.WP6 Document Name :HANNAH.OPN.WP6 Court :TCA B. PRINCE MILLER, JR., OF CLEVELAND FOR APPELLANT NO BRIEF FILED BY THE APPELLEE First Paragraph: In this post-divorce proceeding, Patricia Annette Hannah, formerly Lipps, appeals dismissal of her petition seeking an increase in child support. Although she raises three issues on appeal, we find the first one to be dispositive: URL:http://www.tba.org/tba_files/TCA/HANNAH.OPN.WP6 Document Name :JAANINI.OPN.WP6 Court :TCA PHILLIP C. LAWRENCE of POOLE, LAWRENCE, THORNBURY, STANLEY & MORGAN, Chattanooga, for Appellant JAY KU, Chattanooga, for Appellee First Paragraph: This is a divorce case. The appellant challenges the jurisdiction of the trial court to enter an order after the final divorce judgment was entered on January 24, 1995. He apparently contends that relief was not appropriate under either Tenn. R. Civ. P. 59 or 60. We hold that the trial court had jurisdiction under Tenn. R. Civ. P. 59 to grant the relief attacked on this appeal. URL:http://www.tba.org/tba_files/TCA/JAANINI.OPN.WP6 Document Name :JAANNI.DIS.WP6 Court :TCA Attorneys: See Above First Paragraph: I dissent but concur in result. The motion filed on March 17th was not filed within 30 days of judgment and could not be treated as a Rule 59 motion. URL:http://www.tba.org/tba_files/TCA/JAANNI.DIS.WP6 Document Name :JOHNSON2.OPN.WP6 Court :TCA GEORGE W. MORTON, JR., of MORTON & MORTON, Knoxville, for Appellant JANET L. HOGAN of HOGAN & HOGAN, Knoxville, for Appellee Continental Baking Company First Paragraph: This T.R.A.P. 9 interlocutory appeal involves a dispute between the parties regarding a settlement agreement. The agreement at issue ostensibly settled a tort action brought by the appellant James B. Johnson (Johnson) for serious injuries arising out of an automobile accident, the facts of which are not pertinent to this appeal. Although the parties agree that they entered into an oral settlement and also agree that they advised the trial court that they had settled the plaintiff's suit, they are now in dispute as to the terms of the settlement. The trial court found that there was a mutual mistake of fact in the negotiations leading up to the settlement, and consequently refused to enforce the more generous settlement argued for by Johnson. Johnson filed a T.R.A.P. 9 application for permission to appeal, and in the interest of judicial economy and efficiency, this court agreed to hear his appeal. URL:http://www.tba.org/tba_files/TCA/JOHNSON2.OPN.WP6 Document Name :LEINART.OPN.WP6 Court :TCA BRUCE D. FOX OF CLINTON FOR APPELLANTS GREGORY F. COLEMAN OF KNOXVILLE FOR APPELLEE First Paragraph: Sharon Leinart and her husband Paul Leinart appeal a judgment rendered in their case seeking damage for her injuries and for his loss of consortium and companionship as a result of injuries she received in a vehicular accident. She insists the jury award, approved by the Trial Court, totaling $15,000 was so inadequate that the Trial Court was in error in not granting her a new trial. Mr. Leinart insists that the jury award of zero for his damages was likewise inadequate. URL:http://www.tba.org/tba_files/TCA/LEINART.OPN.WP6 Document Name :MANIS.OPN.WP6 Court :TCA KENNETH S. CHRISTIANSEN OF KNOXVILLE FOR APPELLANT STEVE HAUN, Pro Se First Paragraph: The Plaintiff, Don Manis, d/b/a Easy Money Pawn Shop, appeals dismissal of his suit against Steve Haun, wherein he sought possession of a 1985 Ford F-350 truck. URL:http://www.tba.org/tba_files/TCA/MANIS.OPN.WP6 Document Name :MASON.OPN.WP6 Court :TCA JAMES H. RIPLEY OF SEVIERVILLE FOR APPELLANT DOUGLAS L. DUTTON and AMY V. HOLLARS OF KNOXVILLE FOR APPELLEES First Paragraph: This is a suit seeking damages for wrongful discharge pursuant to "The Public Protection Act of 1990," T.C.A. 50-1-304, commonly known as the Whistle Blower Act, and the "Occupational Safety and Health Act of 1972," T.C.A. 50-3-106. The Trial Court granted the Defendants a summary judgment insofar as the complaint sought relief under the Whistle Blower Act. Thereafter, he entered a Rule 54 judgment rendering his disposition a final judgment, and as such subject to an appeal as of right. URL:http://www.tba.org/tba_files/TCA/MASON.OPN.WP6 Document Name :MCGEE.OPN.WP6 Court :TCA Winston S. Evans of Nashville For Appellee, Lovlace Kevin S. Carr of Spicer, Flynn & Rudstrom of Nashville For Appellee, First National Bank of Centerville Michael E. Gilmer of Columbia For Appellant First Paragraph: This appeal involves a venue dispute. Plaintiff, Sue McGee, appeals from the order of the Circuit Court for the Twenty-Second Judicial District in Maury County, Tennessee, that dismissed her suit against defendants, First National Bank and Neal Lovlace, for improper venue. The record in the case consists of what was formerly called the technical record and a "transcript of proceedings" which has no testimony and contains only argument and statements of counsel and the court. URL:http://www.tba.org/tba_files/TCA/MCGEE.OPN.WP6 Document Name :MURPHYRM.OPN.WP6 Court :TCA L. THOMAS AUSTIN OF DUNLAP FOR APPELLANT STEPHEN T. GREER OF DUNLAP FOR APPELLEE First Paragraph: James Edward Murphy appeals a divorce decree of the Chancery Court for Rhea County. By his issues on appeal he questions the Court's division of marital property and its award of child support, alimony, and attorney fees. URL:http://www.tba.org/tba_files/TCA/MURPHYRM.OPN.WP6 Document Name :UNIGARD.OPN.WP6 Court :TCA VANCE W. CHEEK, JR., OF JOHNSON CITY FOR MAKATO'S OF TENNESSEE, INC. J. DAVID MILLER OF KINGSPORT FOR SCOTT HICKMAN AND WIFE SUSAN DENISE HICKMAN JACK M. VAUGHN OF KINGSPORT FOR UNIGARD SECURITY INSURANCE COMPANY DAVID S. HAYNES OF BRISTOL FOR THE MACKORELL GROUP, INC., JAMES T. MACKORELL and wife WENDY L. MACKORELL First Paragraph: Scott Hickman and wife Susan D. Hickman and Makato's of Tennessee, Inc., hereinafter referred to as the Defendants, appeal a declaratory judgment entered by the Circuit Court for Washington County which found that a liability policy issued by Unigard Security Insurance Company to Makato's did not cover an injury to Mr. Hickman because Makato's had not complied with the notice requirement of the policy. Makato's also appeals dismissal of its third-party action against the Mackorell Group, Inc., and James T. Mackorell and wife Wendy L. Mackorell. James T. Mackorell and Wendy L. Mackorell owned the capital stock of Makato's at the time of Mr. Hickman's injury, but shortly thereafter sold it to Thomas Mackorell and wife Julie A. Mackorell and David LeVeau. URL:http://www.tba.org/tba_files/TCA/UNIGARD.OPN.WP6 Document Name :BAILEYLE.OPN.WP6 Court :TCCA For the Appellant: For the Appellee: Joyce Ward Charles W. Burson Assistant Public Defender Attorney General and Reporter 1609 College Park Drive 450 James Robertson Parkway Morristown, TN 37813-1618 Nashville, TN 37243-0493 Michael J. Fahey, II Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 Eric Christiansen Assistant District Attorney Suite 306 1104 Tusculum Boulevard Greeneville, TN 37743 First Paragraph: The defendant, Lelan Bailey, appeals as of right from his conviction for forgery in an amount less than $1,000. The trial court imposed a Range I sentence of two years. URL:http://www.tba.org/tba_files/TCCA/BAILEYLE.OPN.WP6 Document Name :BRANAM.OPN.WP6 Court :TCCA For the Appellant: For the Appellee: A. Wayne Carter Charles W. Burson Assistant Public Defender Attorney General of TN P.O. Box 1453 and Cleveland, TN 37364-1453 Charlotte H. Rappuhn Asst Attorney General of TN 450 James Robertson Parkway Nashville, TN 37243-0493 Jerry N. Estes District Attorney General and Rebble S. Johnson Asst District AG 203 E. Madison Ave. Athens, TN 37303-0647 First Paragraph: This is an appeal as of right from a judgment of the trial court denying the appellant's application for post-conviction relief. The petitioner was convicted of first degree murder on October 18, 1979, and was sentenced to life imprisonment. His conviction was affirmed on appeal. State v. Branam, 604 S.W.2d 892 (Tenn. Crim. App. ), app. denied (Tenn. Sept. 2, 1980). On July 26, 1988, he filed a petition for post-conviction relief asserting that he received the ineffective assistance of counsel and that his conviction resulted from a violation of due process because the trial court's jury instruction regarding malice violated Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450 (1979). URL:http://www.tba.org/tba_files/TCCA/BRANAM.OPN.WP6 Document Name :COVINGTO.OPN.WP6 Court :TCCA For the Appellant: For the Appellee: Shara Flacy Charles W. Burson District Public Defender Attorney General and Reporter P.O. Box 1208 450 James Robertson Parkway Pulaski, TN 37813-1618 Nashville, TN 37243-0493 John P. Damron Clinton J. Morgan Assistant Public Defender Counsel for the State 209 West Madison Street 450 James Robertson Parkway P.O. Box 1208 Nashville, TN 37243-0493 Pulaski, TN 38478 Robert C. Sanders Assistant District Attorney Maury County Courthouse Annex Columbia, TN 38478 First Paragraph: The petitioner, Raymond Lewis Covington, appeals from the trial court's order dismissing his petition for post- conviction relief. The single issue presented for review is whether the petitioner had been denied the effective assistance of counsel at trial. URL:http://www.tba.org/tba_files/TCCA/COVINGTO.OPN.WP6 Document Name :FOWLERLE.OPN.WP6 Court :TCCA FOR THE APPELLANT: FOR THE APPELLEE: MARK C. BIESACK CHARLES W. BURSON 615 Walnut St., # 206 Attorney General & Reporter Chattanooga, TN 37402 AMY L. TARKINGTON Assistant Attorney General 450 James Robertson Pkwy. Nashville, TN 37243-0493 GARY D. GERBITZ District Attorney General 600 Market St., Suite 310 Chattanooga, TN 37402 STANLEY J. LANZO Asst. District Attorney General City and County Courts Bldg. Chattanooga, TN 37402 First Paragraph: The petitioner was indicted and convicted by a jury of felonious assault with a firearm with the intent to commit first-degree murder. His conviction was affirmed on direct appeal. He then petitioned for post-conviction relief, alleging ineffective assistance of counsel at trial and on appeal, and no effective waiver of his constitutional right to counsel at trial. URL:http://www.tba.org/tba_files/TCCA/FOWLERLE.OPN.WP6 Document Name :HUNTERJL.OPN.WP6 Court :TCCA For the Appellant: For the Appellee: Gregory D. Smith Charles W. Burson BPR# 013420 Attorney General/Reporter One Public Sq., STE 321 Clarksville, TN 37040 Cecil H. Ross (ON APPEAL) Assistant Attorney General Criminal Justice Division Robert L. Marlow 450 James Robertson Parkway Assistant Public Defender Nashville, TN 37243 0493 Fayette, TN 37334 (AT TRIAL AND ON APPEAL) William Michael McCown District Attorney General Weakley E. Barnard Asst. District AG Lewisburg, TN 37091 First Paragraph: The appellant, Jerry Lee Hunter, appeals from a conviction and sentence for burglary, entered by the Circuit Court of Marshall County. Essentially, four issues are presented for our review. First, the appellant challenges the sufficiency of the evidence to sustain his conviction. Second, the appellant contends that his conviction for burglary is inconsistent with his acquittal on the charges of theft and attempted theft. Third, the appellant argues that the trial court erred in admitting into evidence tools found in the rear pocket of the appellant's pants at the time of his arrest. Finally, the appellant contends that the sentence imposed by the trial court is excessive, and that the trial court should have granted the appellant an alternative sentence. URL:http://www.tba.org/tba_files/TCCA/HUNTERJL.OPN.WP6 Document Name :HUNTERJP.OPN.WP6 Court :TCCA For the Appellant: For the Appellee: George J. Duzane Charles W. Burson Duzane, Kooperman & Mondelli Attorney General / Reporter One Church Street 450 James Robertson Parkway Suite 300 Nashville, TN 37243-0493 Nashville, TN 37201 Eugene J. Honea Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 Ms. Kymberly Hattaway Assistant District Attorney 222 Second Avenue North Washington Square, Suite 500 Nashville, TN 37201-1649 First Paragraph: The defendant, James Phillip Hunter, appeals from his conviction for first degree murder. The trial court imposed a life sentence. In addition to his challenge to the sufficiency of the evidence, the defendant presents the following issues for review: URL:http://www.tba.org/tba_files/TCCA/HUNTERJP.OPN.WP6 Document Name :PARTON.OPN.WP6 Court :TCCA FOR THE APPELLANT: FOR THE APPELLEE: MARK E. STEPHENS CHARLES W. BURSON District Public Defender Attorney General & Reporter PAULA R. VOSS GEORGE P. LINEBAUGH Assistant Public Defender Counsel for the State 1209 Euclid Ave. 450 James Robertson Pkwy. Knoxville, TN 37921 Nashville, TN 37243-0493 RANDALL E. NICHOLS District Attorney General ANDREW JACKSON Asst. District AG City-County Bldg. Knoxville, TN 37902 First Paragraph: The petitioner was indicted in 1987 for burglary; grand larceny; receiving stolen property; concealing stolen property; "offering to pass and transfer . . . [a] forged . . . check" in the amount of three hundred twenty dollars ($320); and under the habitual criminal statute. Pursuant to a plea bargain agreement, he pled guilty to third-degree burglary; grand larceny; and "attempt to transfer of [sic] a forged instrument exceeding $200 in amount, as charged." The State's recommended punishment for these offenses was the maximum sentence for each conviction. The court accepted the State's recommendation and sentenced the petitioner to ten years as a Range II aggravated and persistent offender for each of the offenses, to run consecutively, for an effective sentence of thirty years. URL:http://www.tba.org/tba_files/TCCA/PARTON.OPN.WP6 Document Name :PARTON.CON.WP6 Court :TCCA Attorneys: See Above First Paragraph: I concur in the majority opinion's result and most of its reasoning. However, I disagree with its view of the relationship between the forgery law and criminal attempt. The forgery statute in question provides that any person who "fraudulently passes or transfers, or offers to pass or transfer, any forged paper, knowing it to be forged, with intent to defraud another" commits a felony. T.C.A. 39 3-804 (1982) (repealed 1989). In context, the reference to an offer carries special meaning that does not include every means by which an attempt may occur. I believe it was included for the direct purpose of making equally culpable the type of person who, for example, presents a forged check to a bank teller for cashing, but the teller notices the forgery and thereby refuses to accept the check or to cash it. URL:http://www.tba.org/tba_files/TCCA/PARTON.CON.WP6 Document Name :SOUTHERL.OPN.WP6 Court :TCCA FOR THE APPELLANT: FOR THE APPELLEE: Cheryl J. Skidmore Charles W. Burson Attorney at Law Attorney General & Reporter 629 East Main Street Hendersonville, TN 37075 Hunt S. Brown Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 William Michael McCown District Attorney General Weakley E. Barnard Asst. Dist. Attorney General Marshall Co. Courthouse Lewisburg, TN 37091 First Paragraph: Appellant, Barry Southerland, was convicted of aggravated rape and aggravated kidnapping. He received concurrent life sentences. His convictions were affirmed by this Court; and the Supreme Court denied certiorari on August 29, 1988. On February 18, 1991, appellant's first Petition for Writ of Habeas Corpus was dismissed. On January 29, 1993, appellant filed his second Petition for Writ of Habeas Corpus in the United States District Court alleging ineffective assistance of counsel. This Petition was dismissed on August 11, 1994. Appellant subsequently filed application for delayed appeal which was denied by this Court on December 20, 1994. On January 5, 1995, appellant filed for post-conviction relief alleging ineffective assistance of counsel. The trial court dismissed his petition, as untimely, on January 20, 1995, without conducting an evidentiary hearing. Appellant appeals that dismissal. We affirm. URL:http://www.tba.org/tba_files/TCCA/SOUTHERL.OPN.WP6
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