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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PENNY CAMPBELL, ET AL, v. DON SUNDQUIST, Governor of the State of Tennessee, et al, and PARTIAL DISSENT Court:TCA Charles W. Burson, Attorney General and Reporter Jerry L. Smith, Deputy Attorney General For Defendants-Appellants Abby R. Rubenfeld of Nashville For Plaintiffs-Appellees Rebecca L. Brown, Robert K. Rasmussen, Susan L. Kay of Nashville For Amicus Curiae, American Civil Liberties Union of TN James L. McHugh, Jr., Carolyn I. Polowy and Paul M. Smith of Washington, D.C.; Irwin Venick of Nashville, For Amicus Curiae,American Psychological Association, The National Association of Social Workers, and The Tennessee Chapter of the National Association of Social Workers Glen G. Dukes, Jr., of Nashville Suzanne Goldberg, Staff Attorney, LAMBDA Legal Defense & Education of New York For LAMBDA Legal Defense and Education and The Tennesseans for Equality Peggy June Griffin of Dayton, Amicus Curiae, Pro Se First Paragraph: This appeal involves a constitutional challenge under the Tennessee Constitution to Tennessee's Homosexual Practices Act, T.C.A. 39-13-510 (1991). On May 26, 1993, plaintiffs Penny Campbell, John Doe, Jane Doe, James Tallent, and Christopher Simien, filed a "Verified Petition for Declaratory and Injunctive Relief" in the Circuit Court for Davidson County, Tennessee, against defendants Don Sundquist, Governor of the State of Tennessee, Charles W. Burson, Attorney General of the State of Tennessee, and Victor S. Johnson, III, District Attorney General for Davidson County, each in his official capacity. The complaint, as amended, seeks a declaratory judgment pursuant to T.C.A. 29-14-101, et seq., (1980) that the Homosexual Practices Act (HPA), a criminal law, violates plaintiffs' right to privacy under Article I, Sections 1, 2, 3, 7, 8, 19, and 27 of the Tennessee Constitution and their right to equal protection of the laws under Article I, Section 8 of the Tennessee Constitution. Plaintiffs also seek to enjoin the enforcement of the HPA. URL:http://www.tba.org/tba_files/TCA/CAMPBELL.OPN.WP6 URL:http://www.tba.org/tba_files/TCA/CAMPBELL.DIS.WP6 CAROL T. COFFEY, v. THE ESTATE OF CLYDE L. MOORE, BERNICE MOORE, EXECUTRIX, Court:TCA MICHAEL S. PEMBERTON and ERIC S. NOWINSKI of LEWIS, KING, KRIEG, WALDROP & CATRON, P.C., Knoxville, for Appellant PAUL E. DUNN of DUNN, MacDONALD & COLEMAN, P.C., Knoxville, for Appellee First Paragraph: The plaintiff was injured when he lost control of his bicycle on Tellico Parkway in Loudon County. Just prior to the accident, the original defendant, Clyde L. Moore, had been driving his automobile to the rear of the plaintiff, proceeding in the same direction. Mr. Moore passed the plaintiff just as the plaintiff lost control of his bicycle. The critical question at trial was whether Moore's vehicle came in contact with the bicycle, causing the plaintiff to crash. The jury found for the defendant. The plaintiff appeals, arguing one issue--that there was no material evidence to support the jury's verdict. Our task is to determine if such evidence exists in the record before us. See T.R.A.P. 13(d). URL:http://www.tba.org/tba_files/TCA/COFFEY.OPN.WP6 JANE DOE A AND MOTHER A, JANE DOE C AND FATHER C, v. COFFEE COUNTY BOARD OF EDUCATION, JOE BRANDON, BOBBY CUMMINGS, NELSON JOHNSON, MARIANNE BRANDON, Court:TCA Michelle M. Benjamin of Winchester For Plaintiffs-Appellants L. Hale Hamilton, Spears, Moore, Rebman, & Williams of Chattanooga Hugh P. Garner, Garner, Lewis & Prickett of Chattanooga For Appellees First Paragraph: This is a suit by two high school students and their parents seeking damages resulting from alleged assaults by a high school coach. URL:http://www.tba.org/tba_files/TCA/DOE.OPN.WP6 PERMANENT GENERAL ASSURANCE CORPORATION, v. TAMMY L. NEASE, ANNA RUTH WITT,JOSEPH D. WITT, WANDA CHIPPS,MIRANDA McMAHAN, b/n/f and mother, WANDA CHIPPS, and ARVINE TAYLOR, and TENNESSEE FARMERS MUTUAL INSURANCE CO., and ATLANTA CASUALTY COMPANY Court:TCA JEFFREY M. WARD of MILLIGAN & COLEMAN, Greeneville, for Appellants TENNESSEE FARMERS MUTUAL INSURANCE COMPANY and ATLANTA CASUALTY COMPANY JERRY M. MARTIN, Knoxville, for Appellee First Paragraph: This is a declaratory judgment action filed pursuant to T.C.A. 29-14-101, et seq. This litigation traces its genesis to a two-vehicle accident involving a 1986 Chevrolet Cavalier automobile driven by the defendant Tammy L. Nease (Nease). A number of claims were asserted against Nease whose negligence apparently caused the accident. Permanent General Assurance Corporation (PGA) filed the instant action against Nease and others seeking a determination that these claims were not covered under the liability feature of the automobile insurance policy issued by PGA to Nease's husband. This suit named as defendants the accident claimants as well as Tennessee Farmers Mutual Insurance Company and Atlanta Casualty Company (Tennessee Farmers/Atlanta Casualty). These two insurance companies had been sued as uninsured motorist carriers in the underlying tort action brought against Nease. The Chancellor, following a non-jury hearing, determined that PGA's policy did not afford coverage to Nease for the accident. Tennessee Farmers/Atlanta Casualty appeal, challenging the correctness of the Chancellor's ruling. The individual defendants did not appeal. URL:http://www.tba.org/tba_files/TCA/NEASE.OPN.WP6 VIRGINIA M. PINSON and husband, WILLIAM A. PINSON, v. MARGARET DENNY BONNELL and PAMELA MARIE PARSONS, Court:TCA JAMES H. LONDON and ROY F. SATTERWHITE, III, of LONDON & AMBURN, P.C., Knoxville, for Appellants FRED G. MUSICK and JAMES C. CONE of JENKINS & JENKINS, Knoxville, for Appellee MARGARET DENNY BONNELL JAY ARTHUR GARRISON of KENNERLY, MONTGOMERY & FINLEY, Knoxville, for Appellee PAMELA MARIE PARSONS First Paragraph: This appeal questions the adequacy of a jury's verdict. The plaintiff Virginia M. Pinson (plaintiff) alleged in her complaint that she sustained physical and emotional injuries when the automobile in which she was riding as a guest passenger collided with another vehicle as the latter attempted to exit from a McDonald's restaurant onto Cumberland Avenue in Knoxville. The jury awarded the plaintiff $500 and awarded her husband $1,683.25 in his derivative action. The award was apportioned 75% to the driver of the exiting vehicle and 25% to Pamela Marie Parsons, the plaintiff's daughter, who was driving the vehicle occupied by the plaintiff at the time of the accident. The plaintiff and her husband filed a motion for a new trial or additur. The trial court denied their motion, and this appeal followed. The sole issue on this appeal is whether the trial judge erred when he failed to grant the plaintiff and her husband a new trial due to the alleged inadequacy of the jury's award. URL:http://www.tba.org/tba_files/TCA/PINSONVM.OP.WP6 JOE HENRY ANGUS v. STATE OF TENNESSEE Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Robert Marlow Charles W. Burson Assistant Public Defender Attorney General P.O. Box 1119 Fayetteville, TN 37334 Eugene J. Honea Assistant Attorney General W. Michael McCown District Attorney General Robert Crigler Asst. Dist. Attorney General First Paragraph: Pursuant to his pleas of guilty, the appellant, Joe Henry Angus, was convicted of two counts of aggravated robbery and one count of aggravated burglary. He received a total sentence of twenty years as a Range I standard offender. Almost one year later, he filed his petition for post-conviction relief, asserting that his guilty pleas were entered without the effective assistance of counsel. Counsel was appointed, and, after a full evidentiary hearing, the trial court denied relief. The petitioner now appeals from the denial of post conviction relief, contending that the trial judge erred by finding that his counsel was effective. URL:http://www.tba.org/tba_files/TCCA/ANGUS.OPN.WP6 STATE OF TENNESSEE, v.CARY CAUGHRON, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: ED MILLER CHARLES W. BURSON Public Defender Attorney General & Reporter SUSANNA LAWS THOMAS MERRILYN FEIRMAN Asst. Public Defender Asst. Attorney General AL C. SCHMUTZER, JR. District Attorney General ED BAILEY Asst. District AG First Paragraph: By opinion filed on September 20, 1994, this Court affirmed the defendant's four convictions for first-degree murder, attempted first-degree murder and aggravated arson. In finding that the trial judge had failed to make necessary findings to support consecutive sentences as set out in State v. Woods, 814 S.W.2d 378 (Tenn. Crim. App. 1991), the trial court's order of consecutive sentences was reversed and concurrent sentences were ordered. URL:http://www.tba.org/tba_files/TCCA/CAUGHRON.OPN.WP6 BENEDICT JOSEPH COOK, v. STATE OF TENNESSEE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Benedict Joseph Cook, III, Charles W. Burson pro se Attorney General & Reporter Darian B. Taylor Assistant Attorney General Victor S. Johnson, III District Attorney General Tom Thurman Asst. Dist. Attorney General First Paragraph: Appellant, Benedict Joseph Cook, III, was convicted of three counts of aggravated rape and two counts of aggravated sexual battery. This Court upheld his convictions and the Tennessee Supreme Court granted certiorari. The Supreme Court's final action, reinstating the trial court's judgment, occurred on November 12, 1991. On December 15, 1994, appellant filed for post conviction relief. The trial court dismissed his petition as untimely. We affirm. URL:http://www.tba.org/tba_files/TCCA/COOK.OPN.WP6 STATE OF TENNESSEE, v. DAVID LUCIAN GIBSON, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Andrew Jackson Dearing, III Charles W. Burson Shelbyville, TN Attorney General & Reporter John P. Cauley Assistant Attorney General Michael McCown District Attorney General Gary M. Jones Asst. Dist. Attorney General First Paragraph: A jury convicted the appellant, David Lucian Gibson, of attempted first degree murder and imposed a $50,000 fine. Sentencing the appellant as a Range I offender, the trial judge imposed a twenty-two year and nine month sentence. On appeal, the appellant raises three issues for review. First, he contends that the evidence is insufficient to support his conviction. Secondly, the appellant argues that the trial court erred in denying his motion for judgment of acquittal. Finally, he claims that the trial court erred in sentencing him. Following our review, we affirm. URL:http://www.tba.org/tba_files/TCCA/GIBSON.OPN.WP6 LARRY GILBREATH, v. RICKY BELL, WARDEN, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Larry Gilbreath, Pro Se Charles W. Burson Turney Center Attorney General & Reporter Industrial Prison Ellen H. Pollack Assistant Attorney General Joseph D. Baugh District Attorney General First Paragraph: Appellant, Larry Gilbreath, was convicted of rape on April 19, 1971. He was sentenced to serve 55 years and 1 day confinement. Appellant filed Application for Writ of Habeas Corpus alleging that his sentence "expired on January 4, 1993." The trial court dismissed without conducting an evidentiary hearing. The trial court held that appellant must serve one-half of his determinate sentence prior to being considered for paroled release. The court reasoned that good and honor time credit was inapplicable when calculating parole eligibility on determinate sentences. McFadden v. State, 532 S.W.2d 944, 946 (Tenn. Crim. App. 1975). The trial court further found neither a factual nor legal basis supporting appellant's assertion that his sentence had expired. URL:http://www.tba.org/tba_files/TCCA/GILBREAT.OPN.WP6 STATE OF TENNESSEE v. MICHAEL L. KINDALL and ROBERT L. PARHAM Court:TCCA FOR THE APPELLANT, FOR THE APPELLEE: MICHAEL KINDALL: Terry J. Canady Charles W. Burson Nashville, Tennessee. Attorney General and Reporter FOR THE APPELLANT, Ellen H. Pollack ROBERT L. PARHAM: Paula Ogle Blair Nashville, Tennessee First Paragraph: This is an appeal by defendants Michael Kindall and Robert Parham from a judgment of the Davidson County Criminal Court, in which both defendants were convicted of aggravated robbery on June 28, 1994. The robbery in question occurred at approximately 1:30 a.m. on July 2, 1993, as the victim, Charles Mosely, Jr., a diabetic, was returning to his father's home from a convenience store where he had purchased candy with which to raise his blood sugar level. Two men approached Mosely as he walked to the store and again as he returned. As they spoke to Mosely the second time, one of the men revealed a handgun. After leading Mosely to the side of a nearby house, they robbed him of his jewelry and a small amount of cash. The victim was then told to leave. A shot was fired which the victim testified he heard pass by his ear, at which point he ran to his father's house. URL:http://www.tba.org/tba_files/TCCA/KINDALL.OPN.WP6 STATE OF TENNESSEE, v. JAMES R. RAY, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: JERRY COLLEY CHARLES W. BURSON P. O. Box 1476 Attorney General & Reporter Columbia, TN HUNT S. BROWN Asst. Attorney General JOSEPH D. BAUGH District Attorney General JEFF BURKS Asst. District Attorney General First Paragraph: The defendant was arrested on a capias issued as a result of an indictment containing four charges of drug violations by the defendant. At the time of his arrest, the defendant was found to be in possession of an additional quantity of marijuana. The defendant eventually pled guilty on two of the original drug charges pursuant to a plea agreement reached with the State which involved fines of three thousand dollars ($3000) on each charge and two years probation. An additional condition of the plea bargain agreement was that the State would not pursue the marijuana charge in exchange for the defendant's guilty pleas. URL:http://www.tba.org/tba_files/TCCA/RAY.OPN.WP6 SAMMY STARNES v. WAYNE CLEVINGER, Sheriff Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: SAMMY STARNES, pro se CHARLES W. BURSON Northeast Correction Center Attorney General/Reporter CHRISTINA S. SHEVALIER Assistant Attorney General C. BERKELEY BELL District Attorney General DOUG GODBEE Assistant District Attorney First Paragraph: In this pro se appeal the appellant seeks reversal of the trial court's order dismissing his petition for the writ of habeas corpus filed pursuant to Tenn. Code Ann. 29-21-101 to -130 (1980). In the petition the appellant challenges the denial by authorities of eight (8) months and forty-nine (49) days of sentence credits allegedly earned by the appellant while on work release. The appellant is currently serving a thirteen (13) year sentence for first degree burglary, grand larceny and escape. The habeas petition does not allege that the appellant's convictions are void or that his sentence has expired. For this reason the trial court dismissed the petition. We must affirm the trial court. URL:http://www.tba.org/tba_files/TCCA/STARNESS.OPN.WP6 STATE OF TENNESSEE, v.TRACEY VAUPEL, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: MICHAEL J. FLANAGAN CHARLES W. BURSON - and - Attorney General & Reporter DALE M. QUILLEN Nashville, TN WILLIAM DAVID BRIDGERS Asst. Attorney General JOSEPH D. BAUGH District Attorney General RONALD L. DAVIS Asst. District AG First Paragraph: The defendant, Tracey Vaupel, was charged in the indictment with taking marijuana into a state institution where prisoners are quartered in violation of T.C.A. 39-16-201(a)(1). On January 24, 1995, the defendant filed an application for pretrial diversion with the district attorney's office. The district attorney denied her application on February 15, 1995. She then filed a petition for a writ of certiorari, which the trial court denied on May 2, 1995. Pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, the defendant sought and was granted permission to appeal the trial court's dismissal of her petition. The sole issue presented in this appeal is whether the trial court erred in affirming the decision of the district attorney to deny pretrial diversion. We find that the defendant's issue lacks merit, and the judgment of the trial court is affirmed. URL:http://www.tba.org/tba_files/TCCA/VAUPEL.OPN.WP6
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