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TBALink Opinion-Flash
December 2, 1996 -- Volume #2 -- Number #108
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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© Copyright 1998 TN Bar Association - This Issue IN THIS ORDER: