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.
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RICKY LEE FARLEY vs. DONNA ELAINE FARLEY Court:TCA ATTORNEY FOR PLAINTIFF/APPELLANT ATTORNEY FOR DEFENDANT/APPELLEE THOMAS J. DRAKE, JR. WM. G. WILKINSON 305 Fourteenth Avenue, North Stinnett & Wilkinson Nashville, TN 37203 106 Frey Street P. O. Box 125 Ashland City, TN 37015 Judge: LEWIS First Paragraph: This is an appeal by plaintiff Ricky Lee Farley, from the judgment of the chancery court which changed custody of his two minor children from him to their mother, Donna Elaine Farley, defendant/appellee. AFFIRMED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/FARLEYRL_OPN.WP6 RUSSELL HENRY HASTINGS vs. CAROLYN LOUISE HASTINGS Court:TCA For the Plaintiff/Appellee: For the Defendant/Appellant: Mark A. Free Christopher L. Dunn Columbia, TN Columbia, TN Judge: LILLARD First Paragraph: This is a divorce case in which the wife seeks payment of an asserted arrearage in child support. The trial court held that the husband had paid child support in accordance with the order in effect at that time, and dismissed the petition for arrearage. We affirm in part and reverse in part and remand. URL:http://www.tba.org/tba_files/TCA/HASTINGS_OP.WP6 TRACY HAWKS and DALE HAWKS VS. CITY OF WESTMORELAND Court:TCA ATTORNEY FOR PLAINTIFF/APPELLANT ATTORNEY FOR DEFENDANTS/APP Bruce N. Oldham Christina U. Douglas OLDHAM & DUNNING FARRAR & BATES 109 Public Square P.O. Box 80838 Gallatin, TN 37066 Nashville, TN 37208 Judge: TODD First Paragraph: The defendant, City of Westmoreland, has appealed from a non jury judgment awarding the plaintiffs $50,000 damages for enlargement of fire damage to plaintiff's home as a result of the inability of fire fighters to obtain water from fire hydrants near the home. The judgment of the Trial Court is affirmed. URL:http://www.tba.org/tba_files/TCA/HAWKSTD_OPN.WP6 PAUL D. MARTIN VS. DEPARTMENT OF CORRECTION Court:TCA Pro Se/Petitioner/Appellant Attorney General and Reporter PAUL D. MARTIN CHARLES W. BURSON Riverbend Maximum Security Ins. 7475 Cockrill Bend Industrial Rd. Attorney for Respondent/Appellee Nashville, TN 37209-1010 PATRICIA C. KUSSMANN Assistant Attorney General 404 James Robertson Parkway Nashville, TN 37243 Judge: CANTRELL First Paragraph: A prisoner in the custody of the the Department of Correction was accused of assaulting a prison guard. After a hearing, disciplinary sanctions were imposed against the inmate, including a postponement of his release eligibility date. He filed a Petition for Certiorari in the Chancery Court, arguing that he had acted in self-defense, and that irregularities in the hearing procedure were in violation of departmental procedures. The Chancery Court dismissed the petition for untimeliness. We affirm the trial court. URL:http://www.tba.org/tba_files/TCA/MARTINP_OPN.WP6 HERBERT E. ROSE, SR. and vs. H.C.A. HEALTH SERVICES OF TN, INC., et al. DANIEL D. HOFFMAN vs. H.C.A. HEALTH SERVICES OF TN, INC., et al. Court:TCA For the Plaintiffs/Appellants: For the Defendants/Appellees: Larry D. Wilks C. J. Gideon, Jr. Sidney W. Gilreath William S. Walton Nashville, TN Nashville, TN Gregory D. Smith Clarksville, TN Judge: LILLARD First Paragraph: This case involves two cases consolidated on appeal, the first filed by plaintiff Herbert Rose and the second by plaintiff Daniel Hoffman. Both cases are medical malpractice actions involving the use of pedicle screws in spinal column surgery. In both, the trial court granted summary judgment in favor of defendant H.C.A. Health Services of TN, Inc., d/b/a Centennial Medical Center. Both plaintiffs submitted affidavits from the same expert, and the trial court disallowed the affidavits of the plaintiffs' expert on the basis that he did not meet the requirements of Tenn. Code Ann. S 29-26-115(b). We affirm. URL:http://www.tba.org/tba_files/TCA/ROSEHOFF_OPN.WP6 GARY BERNARD SANDERS VS. DON SUNQUIST, ET.AL. Court:TCA Judge: TODD First Paragraph: The appellant has filed a respectful petition to rehear which has been duly considered and is respectfully denied. URL:http://www.tba.org/tba_files/TCA/SANDERS1_ORD.WP6 THOMAS TARPLEY VS. CHARLES TRAUGHBER, CHAIRMAN, TN BOARD OF PAROLES Court:TCA Judge: TODD First Paragraph: The appellant has filed a respectful petition to rehear which has been duly considered and is respectfully denied. URL:http://www.tba.org/tba_files/TCA/TARPLEY1_ORD.WP6 WESTERN EXPRESS, INC. VS. INTERESTED UNDERWRITERS AT LLOYD'S, LONDON Court:TCA Attorney for Plaintiff/Appellant Attorneys for Defendant/Appellee ISHAM B. BRADLEY LEX A. COLEMAN 500 Wilson Pk. Cir., Ste. F218 RICHARD R. RUTH Brentwood, TN 37027 RUTH, McCARTHY & COLEMAN, P.C. 1600 First TN Building 701 Market Street Chattanooga, TN 37402 Judge: CANTRELL First Paragraph: This appeal raises the question of whether Tenn. Code Ann. S56 37-110(d) requires an insurer of personal property to notify lienholders that the coverage has been cancelled before the cancellation is effective as to the property owner. We affirm the chancellor's decision resolving the question against the property owner. URL:http://www.tba.org/tba_files/TCA/WESTERNE_OPN.WP6 STATE OF TN vs. ANTONIO ERASMO ALVARADO Court:TCCA For Appellant: For Appellee: Jan R. Patterson Charles W. Burson Attorney Attorney General and Reporter 225 West Baltimore Suite B Charlotte H. Rappuhn Jackson, TN 38301 Assistant Attorney General (on appeal) Criminal Justice Division 450 James Robertson Parkway John Dickey Nashville, TN 37243-0493 District Public Defender W. Michael McCown Robert Marlow District Attorney General Assistant Public Defender P.O. Box 1119 Robert G. Crigler Fayetteville, TN 37334 Asst. District Attorney General Bedford County Courthouse Curtis Gann Shelbyville, TN 37160 Assistant Public Defender P.O. Box 1119 Gary M. Jones Fayetteville, TN 37334 Asst. District Attorney General Bedford County Courthouse Shelbyville, TN 37160 Judge: WADE First Paragraph: OPINION: The defendant, Antonio Erasmo Alvarado, was convicted of attempted felony murder, aggravated assault, aggravated rape and aggravated burglary. The jury acquitted the defendant of the charge of theft of property. The trial court imposed a Range I, effective sentence of fifty (50) years and approved fines totaling $70,000. REVERSED AND DISMISSED IN PART; AFFIRMED IN PART. CONCURRING: I [JUDGE CANTRELL] concur fully with the majority opinion, given the present state of the law. However, I would hope that our Supreme Court would revisit its holding in State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996), relative to there being no crime of attempt to commit felony murder. DISSENTING & CONCURRING: I [JUDGE SUMMERS] agree with the majority's dismissal of the attempted felony murder conviction. Our Supreme Court, in State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996), ruled that attempted felony murder is not a crime in TN. I would find that the attempted second degree murder conviction could be revived. After the jury spoke, no reason exists to invalidate its verdict. The appellant should be sentenced for that conviction without the state's having to try him again. URL:http://www.tba.org/tba_files/TCCA/ALVARADO_OPN.WP6 URL:http://www.tba.org/tba_files/TCCA/ALVARADO_CON.WP6 URL:http://www.tba.org/tba_files/TCCA/ALVARADO_DIS.WP6 AMOS COPENY vs. STATE OF TN Court:TCCA For the Appellant: For the Appellee: A. Christian Lanier, III Charles W. Burson Suite 150, 615 Lindsay St. Attorney General and Reporter Chattanooga, TN 37403 Elizabeth T. Ryan Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 William H. Cox III District Attorney General Rebecca Stern Asst. District Attorney General Court Building, 600 Market St. Chattanooga, TN 37402 Judge: HAYES First Paragraph: The appellant, Amos Copeny, appeals the Hamilton County Criminal Court's order denying his petition for post-conviction relief. In this appeal, the appellant contends that his trial counsel was ineffective for: (A) failing to meet with the appellant sufficiently to present an effective defense; (B) failing to interview the witnesses for either the defense or the State; (C) failing to carry out a "test drive" of the appellant's alleged route to determine whether the State's theory of the case was possible; (D) failing to properly prepare for the trial of the case; and (E) failing to adopt a strategy in defending the appellant. After a review of the record and the brief of both parties, we affirm the order of the trial court denying post-conviction relief. URL:http://www.tba.org/tba_files/TCCA/COPENY_OPN.WP6 FRANK CRITTENDEN vs. STATE OF TN Court:TCCA For the Appellant: For the Appellee: F. Thomas Giambattista Charles W. Burson 1008 17th Avenue South Attorney General and Reporter Nashville, TN 37212 Mary Anne Queen Legal Assistant Charlotte H. Rappuhn Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 Victor S. (Torry) Johnson III District Attorney General William Reed Asst. District Attorney General Washington Square, Suite 500 222-2nd Avenue North Nashville, TN 37201-1649 Judge: HAYES First Paragraph: The appellant, Frank Crittenden, appeals the Davidson County Criminal Court's dismissal of his petition for post-conviction relief. In his petition, the appellant alleges that, but for the ineffective assistance of his trial counsel, he would have timely filed a notice of appeal from the trial court's sentencing decision. Consequently, the appellant asks this court to find that, due to this constitutional violation, he is entitled to a delayed appeal of his original sentences. After reviewing the record, we conclude that the appellant's issue is without merit. Accordingly, we affirm the trial court's order denying post conviction relief. URL:http://www.tba.org/tba_files/TCCA/CRITTEND_OPN.WP6 STATE OF TN vs. ROBERT ANTHONY DEVITO Court:TCCA For the Appellant: For the Appellee: N. Reese Bagwell Charles W. Burson The Bagwell Law Firm Attorney General and Reporter P.O. Box 427 450 James Robertson Parkway 116 S. Second St. Nashville, TN 37243-0493 Clarksville, TN 37041 Sarah M. Branch 450 James Robertson Parkway Nashville, TN 37243 John Wesley Carney, Jr. District Attorney General Steven L. Garrett Assistant District Attorney 204 Franklin St., Suite 200 Clarksville, TN 37041 Judge: BARKER First Paragraph: This is a direct appeal by appellant, Robert Anthony Devito, from a conviction in the Montgomery County Circuit Court of first degree felony murder. He received a sentence of life imprisonment. Appellant raises the following issues on appeal: (1) the unavailability of Jencks material and co-defendant David Howington's testimony deprived appellant of his Sixth Amendment constitutional rights; (2) the trial court erred in failing to honor an informal agreement between the State and co-defendant Howington; (3) the trial court erred in not ordering a mistrial when co-defendant Howington stated that he had been threatened by the district attorney; and (4) the trial court erred in admitting the preliminary hearing testimony of co-defendant Howington because it was hearsay. Finding the trial court committed no error, we affirm the conviction. URL:http://www.tba.org/tba_files/TCCA/DEVITOR_OPN.WP6 STATE OF TN vs. SHANE ETHRIDGE Court:TCCA FOR THE APPELLANT FOR THE APPELLEE Franklin D. Brabson Charles W. Burson 2806 Natchez Trace Attorney General and Reporter Nashville, TN 37212 450 James Robertson Parkway Nashville, TN 37243-0493 Jeffrey S. Pulley 176 Second Ave. N., Ste. 600 William D. Bridgers Nashville, TN 37201-1916 Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 Lawrence R. Whitley District Attorney General 113 W. Main Street Gallatin, TN 37066-2803 Dee Gay Assistant District Attorney General 113 W. Main Street Gallatin, TN 37066-2803 Kathi Phillips Assistant District Attorney General 113 W. Main Street Gallatin, TN 37066-2803 Judge: BARKER First Paragraph: The Appellant, Shane Ethridge, appeals as of right his sentence for delivery of a controlled substance. Consolidated with this appeal is also Appellant's appeal from the denial of his petition for post-conviction relief. On April 29, 1994, the Appellant was the delivery man in a drug sale to a police informant. After being apprehended, the Appellant confessed to the crime and plead guilty to one count of delivery of cocaine. The trial court sentenced the Appellant to eight years, with one year to be served in jail and seven years in community corrections. AFFIRMED - RULE 20 ORDER. URL:http://www.tba.org/tba_files/TCCA/ETHRIDGE_OPN.WP6 STATE OF TN vs. CHRISTOPHER LIGHT Court:TCCA FOR THE APPELLANT FOR THE APPELLEE Franklin D. Brabson Charles W. Burson 2806 Natchez Trace Attorney General and Reporter Nashville, TN 37212 450 James Robertson Parkway Nashville, TN 37243-0493 Jeffrey S. Pulley 176 Second Ave.N., Ste. 600 William D. Bridgers Nashville, TN 37201-1916 Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 Lawrence R. Whitley District Attorney General 113 W. Main Street Gallatin, TN 37066-2803 Dee Gay Assistant District Attorney General 113 W. Main Street Gallatin, TN 37066-2803 Kathi Phillips Assistant District Attorney General 113 W. Main Street Gallatin, TN 37066-2803 Judge: SUMMERS First Paragraph: The appellant, Christopher Light, pled guilty to three counts of aggravated burglary, five counts of theft of property, one count of vandalism, and one count of auto burglary. He was sentenced as a Range II offender to an effective sentence of thirty four years incarceration. On appeal, he argues that the trial court erred in ordering counts one through four consecutively and that his sentence was excessive. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/LIGHTCHR_OPN.WP6 KENNETH TEAGUE vs. STATE OF TN Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: THOMAS G. MCCROSKEY CHARLES W. BURSON 100 N. Court St. Attorney General & Reporter Maryville, TN ELIZABETH T. RYAN Asst. Attorney General 450 James Robertson Pkwy. Nashville, TN MIKE FLYNN District Attorney General EDWARD P. BAILEY, JR. Asst. District Attorney General 363 Court St. Maryville, TN Judge: PEAY First Paragraph: After a jury trial, the petitioner was convicted of aggravated assault, second-degree burglary while possessing a firearm, and two counts of aggravated kidnapping. His convictions were affirmed on direct appeal. He petitioned for post conviction relief alleging that his indictment was multiplicitous and therefore in violation of his constitutional rights against double jeopardy, and that he had received ineffective assistance of counsel. After a hearing, the court below denied relief. We affirm. URL:http://www.tba.org/tba_files/TCCA/TEAGUEK_OPN.WP6 STATE OF TN vs. CHARLES DAVID WELLS Court:TCCA For the Appellant: For the Appellee: Stephen M. Wallace Charles W. Burson District Public Defender Attorney General and Reporter Gale K. Flanary Elizabeth T. Ryan Asst. Public Defender Assistant Attorney General Post Office Box 839 Criminal Justice Division Blountville, TN 37617 450 James Robertson Parkway Nashville, TN 37243-0493 H. Greeley Wells, Jr. District Attorney General Phyllis Miller Asst. District Attorney General Blountville, TN 37617 Judge: HAYES First Paragraph: The appellant, Charles David Wells, was indicted by a Sullivan County Grand Jury in a two count presentment charging him with one count of aggravated robbery and one count of aggravated assault. Pursuant to a negotiated plea agreement with the State, the appellant pled nolo contendere to one count of robbery as a range II offender and one count of aggravated assault as a range I offender. The agreed sentence was seven years for the robbery conviction and three years for the aggravated assault conviction, to run concurrently. The manner of service of the sentence was left to the discretion of the trial court. Following a sentencing hearing, the Sullivan County Criminal Court denied any form of alternative sentence and imposed a sentence of incarceration in the Department of Correction. The appellant now appeals this decision. After a review of the record, we affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/WELLSCD_OPN.WP6 STATE OF TN vs. PATRICIA YOW WILCOX Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Laura Rule Hendricks Charles W. Burson Appellant Contract Attorney Attorney General & Reporter for the Dist. Public Defenders Conference Janis L. Turner 810 Henley Street Attorney for the State Knoxville, TN 37902 Criminal Justice Division 450 James Robertson Parkway Comer L. Donnell Nashville, TN 37243-0493 District Public Defender Tom P. Thompson, Jr. A. Russell Brown District Attorney General Asst. Dist. Public Defender 213 N Cumberland Street John D. Wootten, Jr. P.O. Box 888 Asst. Dist. Attorney General Lebanon, TN 37087-0888 203 Greentop Street P.O. Box 178 Hartsville, TN 37074-0178 Judge: SUMMERS First Paragraph: The appellant, Patricia Wilcox, was convicted by a jury of second degree murder and sentenced to twenty-five years confinement in the Department of Correction. On appeal she raises the following issues for our review: 1. Whether the trial court erred in denying the appellant's motion for mistrial after the prosecutor made comments regarding the appellant's invocation of her constitutional right against self- incrimination; 2. Whether the trial court erred in denying the appellant's motion to review the notes of a testifying witness; 3. Whether the trial court erred in refusing to allow the appellant to introduce the prior arrest record of the decedent; 4. Whether the evidence was sufficient to support a verdict of guilt beyond a reasonable doubt; and 5. Whether the sentence imposed was excessive. After reviewing the record, we find no reversible error. The judgment of the trial court is affirmed. URL:http://www.tba.org/tba_files/TCCA/WILCOXPY_OPN.WP6
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