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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FELTON ALLEN and wife, BARBARA ALLEN, v. DELTA MATERIALS HANDLING, INC. Court:TCA Stuart A. Wilson, WILSON, McRAE, IVY, SEVIER, McTYIER and STRAIN, Memphis, Tennessee Attorney for Defendant/Appellant. Marvin A. Bienvenu, Jr., GATTI, KELTNER, BIENVENU & MONTESI, Memphis, Tennessee Attorney for Plaintiffs/Appellees. First Paragraph: The plaintiffs, Felton Allen and wife, Barbara Allen sued Delta Materials Handling, Inc. (Delta) for injuries sustained by Mr. Allen when he was struck by a forklift that had been leased from Delta to his employer, The Regina Company. The complaint alleges that Delta was negligent in leasing or renting the forklift to Allen's employer when Defendant knew or should have known that the brakes were defective. URL:http://www.tba.org/tba_files/TCA/ALLENFEL.OPN.WP6 AUSTIN POWDER COMPANY, RENDRO CONSTRUCITON COMPANY, and D & P CONSTRUCTION COMPANY, v. WALTER THOMPSON, Court:TCA E. Jerome Melson of Watson, Hollow & Reeves of Knoxville For Plaintiffs-Appellees Henry T. Ogle of Knoxville For Defendant-Appellant First Paragraph: This appeal involves a suit for specific performance of an agreement to compromise and settle a damage suit. Plaintiffs, Austin Powder Company, Renfro Construction Company, and D & P Construction Company (hereinafter plaintiffs or Austin Powder) sued defendant, Walter Thompson, seeking specific performance of an alleged agreement settling an earlier filed lawsuit (underlying litigation) brought by Thompson against plaintiffs. URL:http://www.tba.org/tba_files/TCA/AUSTIN.OPN.WP6 BOBBY BLACKMON, v. STEVEN F. GLASER, Court:TCA BOBBY BLACKMON Middle Tennessee Reception Center Nashville, Tennessee PLAINTIFF/APPELLANT, PRO SE Curtis M. Lincoln WOODARD, LINCOLN and CRON Hendersonville, Tennessee ATTORNEY FOR DEFENDANT/APPELLEE First Paragraph: The plaintiff, Bobby Blackmon has appealed from an order of the Trial court concluding as follows: IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Defendant, Steven F. Glaser's, motion for summary judgment is well taken for the reasons heretofore set out, and shall be granted.The costs of this cause are taxed to the Plaintiff, Bobby Blackmon, for which execution may issue, if necessary. URL:http://www.tba.org/tba_files/TCA/BLACKMON.OPN.WP6 WANDA GAYE SEAL COLLINS, v. CHARLES EDWARD COLLINS, Court:TCA JULIA A. MARTIN, Knoxville, for Appellant. AARON M. FELDMAN, Knoxville, for Appellee. First Paragraph: This is a rather sordid divorce case. The chancellor granted a divorce and custody of the parties minor child to the appellee. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCA/COLLINS.OPN.WP6 FRANKLIN SHANE HALSTEAD, VS. NILES-BOLTON ASSOCIATES; DEREK BARTON COMPANY, INC.; DEREK BARTON COMPANY, INC., d/b/a DEREK BARTON TENNIS COURTS; and DEREK BARTON TENNIS COURTS, Court:TCA For Franklin For Niles-Bolton Associates: Shane Halstead: Daniel L. Clayton Jefferson C. Orr Kinnard & Clayton Manier, Herod, Hollabaugh & Smith Nashville, TN Nashville, TN For Derrick Barton Company, Inc.: Raymond D. Lackey Smith, Lackey, McHale & Whaley Brentwood, TN First Paragraph: This appeal involves a personal injury action in which the plaintiff sought to file a separate suit against previously unknown defendants in accordance with Tenn. Code Ann. 20-1-119 (1994). The Fifth Circuit Court for Davidson County granted the new defendants motions for summary judgment on the ground that the complaint was filed one day late. The plaintiff asserts on this appeal that the trial court erred by failing to extend the time for filing his amended complaint by three days in accordance with Tenn. R. Civ. P. 6.05. We have determined that Tenn. R. Civ. P. 6.05 does not extend the deadline for taking the actions required by Tenn. Code Ann. 20 1-119 and, therefore, affirm the trial court. URL:http://www.tba.org/tba_files/TCA/HALSTEAD.OPN.WP6 DOROTHY HUNTER v. REGIS HAIRSTYLISTS and REGIS CORPORATION : Court:TCA LINDA J. HAMILTON MOWLES, WITH LEWIS, KING, KRIEG, WALDROP & CATRON, OF KNOXVILLE, TENNESSEE, FOR APPELLANTS BRUCE D. FOX, WITH RIDENOUR, RIDENOUR & FOX, OF CLINTON, TENNESSEE, FOR APPELLEES First Paragraph: The pivotal issue on this appeal is whether or not the trial court was in error in denying Defendants' motion for a new trial based on newly discovered evidence. We hold it was, and reverse for the reasons hereinafter stated. URL:http://www.tba.org/tba_files/TCA/HUNTERET.OPN.WP6 KIMBERLY LYNN MUSICK KYKER v. TONY JAMES KYKER Court:TCA GARY L. ADKINS, WITH BILL HOTZ & ASSOCIATES, OF KNOXVILLE, TENNESSEE, FOR APPELLANT JERRY K. GALYON, WITH GALYON & STOKES, OF SEVIERVILLE, TENNESSEE, FOR APPELLEE First Paragraph: The sole issue on this appeal from a judgment in a divorce proceeding is: Was it in the best interest of the parties' infant daughter for her custody to be awarded to her father instead of her mother? We hold it was not, and reverse for the reasons hereinafter stated. URL:http://www.tba.org/tba_files/TCA/KYKER.OPN.WP6 JOE IVA MURPHY, v. STATE OF TENNESSEE DEPARTMENT OF SAFETY, Court:TCA Lionel R. Barrett, Jr., Nashville, Tennessee Attorney for Plaintiff/Appellant. Charles W. Burson, Attorney General and Reporter Rebecca Lyford, Counsel to the State Attorney for Defendant/Appellee. First Paragraph: Appellant, Joe Iva Murphy, appeals from the judgment of the Chancery Court for Davidson County, affirming the decision of the Tennessee Department of Safety ("Department") that Appellant's 1989 Chevrolet Astro van and $1,589 be forfeited under the Tennessee Drug Control Act. URL:http://www.tba.org/tba_files/TCA/MURPHYJI.OPN.WP6 KAREN REDMON RUYLE, v. BRIAN L. RUYLE, Court:TCA Julia J. Tate, GRACEY, RUTH, HOWARD, TATE & SOWELL, Nashville, Tennessee Attorney for Defendant/Counter-Plaintiff/Appellant. J. Randall Hooper, HOOPER & HOOPER, Brentwood, Tennessee Attorney for Plaintiff/Counter-Defendant/Appellee. First Paragraph: This appeal concerns the primary custody of Paul Alexander Ruyle, the minor son of Appellee, Karen Redmon Ruyle ("Mother") and Appellant, Brian L. Ruyle ("Father"). The final divorce decree entered by the trial court awarded the parties joint custody, with Mother receiving primary physical possession. The sole issue on appeal is whether the trial court committed error in its award of primary custody. For reasons hereinafter set forth, we affirm. URL:http://www.tba.org/tba_files/TCA/RUYLE.OPN.WP6 SHIRLENE WEAVER and husband, FLOYD E. WEAVER, v. CITY OF OAK RIDGE, Court:TCA JOHN C. DUFFY, Watson, Hollow & Reeves, Knoxville, for Appellant. W. CLARK MEREDITH, Joyce, Meredith, Flitcroft & Normand, Oak Ridge, for Appellees. First Paragraph: This appeal arises from a judgment of the trial court awarding damages to the plaintiff, Shirelene Weaver, for injuries which allegedly resulted from a collision between an Oak Ridge Police car and an automobile being driven by Ms. Weaver. The trial court found the police officer to be one hundred percent at fault and awarded Mrs. Weaver $28,608.00 in damages. The City of Oak Ridge has appealed claiming that the trial court erred in its apportionment of fault and the amount of the damages awarded. We affirm the trial court. URL:http://www.tba.org/tba_files/TCA/WEAVER.OPN.WP6 STATE OF TENNESSEE, v. FRANK EDMUND ARNOLD, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: W. LEE LACKEY CHARLES W. BURSON P.O. Box 1328 Attorney General and Reporter Savannah, TN 38372 ELIZABETH T. RYAN Assistant Attorney General ROBERT RADFORD District Attorney General JOHN OVERTON Asst District Attorney General First Paragraph: The Defendant appeals as of right from a jury verdict convicting him of five counts of possession of a controlled substance with intent to sell or deliver. For these Class D felonies, he was sentenced as a Range III persistent offender to five concurrent sentences of ten years each in the Department of Correction. On this appeal, he argues that the evidence is insufficient to support a conviction of possession with the intent to sell or deliver. He also argues that the sentence imposed by the trial court was excessive. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/ARNOLDFE.OPN.WP6 MICHAEL J. BOYD, v. STATE OF TENNESSEE, Court:TCCA For the Appellant: For the Appellee: Daniel A. Seward Charles W. Burson Pillow-McIntyre House Attorney General and Reporter 707 Adams Memphis, TN 38105 Rebecca L. Gundt Assistant Attorney General (ON APPEAL) Criminal Justice Division John W. Pierotti District Attorney General Terry Harris Asst. District Attorney General First Paragraph: The appellant, Michael Joe Boyd, whose legal name is now Mika'eel Abdullah Abdus Samad, appeals as of right from the dismissal of his petition for post-conviction relief by the Criminal Court of Shelby County. On March 10, 1988, the appellant was convicted by a Shelby County jury of felony murder and two counts of robbery with a deadly weapon. The appellant was sentenced to death by electrocution for the murder conviction and to life imprisonment for each of the two counts of robbery with a deadly weapon. The trial court ordered that the sentences be served consecutively. On September 24, 1990, the Tennessee Supreme Court affirmed the appellant's convictions and sentences, State v. Boyd, 797 S.W.2d 589 (Tenn. 1990), and on January 22, 1991, the United States Supreme Court denied certiorari , Boyd v. Tennessee, 498 U.S. 1074, 111 S.Ct. 800 (1991). URL:http://www.tba.org/tba_files/TCCA/BOYDMJ.OPN.WP6 RICKY CALDWELL, v. STATE OF TENNESSEE, Court:TCCA For the Appellant: For the Appellee: Martha Yoakum Charles W. Burson District Public Defender Attorney General and Reporter Post Office Box 386 Tazewell, TN 37879 Michelle L. Lehmann Assistant Attorney General Charles Herman Criminal Justice Division Asst. Public Defender John Beaty William Paul Phillips Asst. Public Defender District Attorney General Michael O. Ripley (ON APPEAL) Asst. District Attorney General First Paragraph: The appellant, Ricky Caldwell, appeals from the summary dismissal of his petition for post-conviction relief. The appellant contends that the post conviction court erred in finding that the petition was barred by the three year statute of limitations. URL:http://www.tba.org/tba_files/TCCA/CALDWELR.OPN.WP6 ERNEST LOYD RAY, v. STATE OF TENNESSEE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: VANEDDA PRINCE CHARLES W. BURSON P.O. Box 26 Attorney General and Reporter Union City, TN ELLEN H. POLLACK Assistant Attorney General PHILLIP BEVINS District Attorney General JAMES E. LANIER Assistant District Attorney General First Paragraph: This is an appeal pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. The Defendant filed a petition for post-conviction relief alleging ineffective assistance of counsel. After conducting an evidentiary hearing, the trial court found that the Defendant had failed to establish that he was entitled to relief due to the ineffective assistance of his trial counsel, but the trial court also found that the Defendant was denied the opportunity for review by the Tennessee Supreme Court through no fault of his own. We agree with the trial court and grant the Defendant post-conviction relief to allow him to seek review by the Supreme Court on a delayed basis. URL:http://www.tba.org/tba_files/TCCA/ERNESTRA.OPN.WP6 L. H. HILL, v. STATE OF TENNESSEE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: WALKER GWINN CHARLES W. BURSON Asst Public Defender Attorney General and Reporter 201 Poplar, Suite 2-01 Memphis, TN MICHELLE L. LEHMANN Assistant Attorney General JOHN W. PIEROTTI District Attorney General REGINALD HENDERSON Asst District Attorney General First Paragraph: This is an appeal pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. The Defendant filed a petition for post-conviction relief alleging ineffective assistance of counsel. After conducting an evidentiary hearing, the trial court found that the Defendant had failed to establish that he was entitled to relief due to the ineffective assistance of counsel; therefore, the trial court denied the Defendant post-conviction relief. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/HILLLH.OPN.WP6 STATE OF TENNESSEE, v. FREDERICK JEFFERSON, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: GREGORY D. SMITH CHARLES W. BURSON One Public Square Attorney General/Reporter Suite 321 Clarksville, TN 37040 MICHELLE L. LEHMANN (Appeal) Attorney for the State 450 James Robertson Pkwy. TOM CRIDER Nashville, TN Public Defender 107 South Court Square CLAYBURN L. PEEPLES Trenton, TN 38382 District Attorney General (Trial and Appeal) GARRY BROWN Asst. District AG First Paragraph: The defendant was indicted and convicted at a jury trial of the offense of possession of marijuana, a controlled substance, while incarcerated in the Gibson County jail. For this conviction he was sentenced to five years as a Range I standard offender and assessed a fine of one thousand dollars ($1000). URL:http://www.tba.org/tba_files/TCCA/JEFERSON.OPN.WP6 STATE OF TENNESSEE, v. ROBERT LINTON LAMAR, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: VIRGINIA LEE STORY CHARLES W. BURSON 136 4th Ave., South Attorney General & Reporter P. O. Box 1608 Franklin, TN RENEE F. VIDELEFSKY Attorney for the State ROBERT "GUS" RADFORD District Attorney General VICKI L. SNYDER Asst. District Attorney General First Paragraph: The defendant was charged in the indictment with first-degree murder and was found guilty at a jury trial of second-degree murder. For this conviction he received a maximum Range I sentence of twenty-five years. It is from this sentence that the defendant appeals as of right. URL:http://www.tba.org/tba_files/TCCA/LAMARRL.OPN.WP6 STATE OF TENNESSEE, v. ERIC CHRISTOPHER MILLER, Court:TCCA For Appellant: For Appellee: C. Michael Robbins Charles W. Burson Asst. Dist. Public Defender Attorney General & Reporter Somerville, TN Rebecca L. Gundt Assistant Attorney General Jerry Norwood Asst. District AG First Paragraph: The defendant, Eric Christopher Miller, was convicted of possession of over .5 grams of cocaine with the intent to sell or deliver. The trial court imposed a Range I sentence of ten years. URL:http://www.tba.org/tba_files/TCCA/MILLEREC.OPN.WP6 STATE OF TENNESSEE, v. THOMAS M. MORGAN and WILLIAM C. TILSON, Court:TCCA FOR THE APPELLANTS: FOR THE APPELLEE: Mack Garner Charles W. Burson District Public Defender Attorney General 318 Court Street Maryville, TN Ruth A. Thompson Assistant Attorney General Mike Flynn District Attorney General Philip H. Morton Asst. Dist. Attorney General First Paragraph: The appellants, Thomas M. Morgan and William C. Tilson, appeal from convictions for the offenses of burglary, a class D felony, and possession of burglary tools, a class A misdemeanor, entered by the Circuit Court of Blount County. The appellants received sentences of twelve years for the burglary and concurrent sentences of eleven months and twenty-nine days for possession of the burglary tools. Morgan and Tilson challenge the sufficiency of the evidence introduced in support of their convictions and the admissibility of a recorded conversation between the appellants. Morgan also disputes his sentencing as a career offender. URL:http://www.tba.org/tba_files/TCCA/MORGAN.OPN.WP6 STATE OF TENNESSEE, v. DAVID WILLARD PHIPPS, JR. Court:TCCA For the Appellant: For the Appellee: Lionel R. Barrett, Jr. Charles W. Burson Washington Square Two Attorney General of TN 222 Second Avenue, North and Nashville, TN 37201 Christina S. Shevalier Asst Attorney General of TN G. Robert Radford District Attorney General First Paragraph: The state was granted an interlocutory appeal from the Henry County Circuit Court's order that essentially bars the state from seeking the death penalty for the defendant, David Willard Phipps, Jr., upon his retrial for first degree murder. The defendant was originally convicted of first degree murder, but this court reversed the conviction and remanded the case for a new trial. State v. Phipps, 883 S.W.2d 138 (Tenn. Crim. App. 1994). The state did not seek the death penalty in the first trial, but filed a Notice of Intent to Seek the Death Penalty after the case was remanded. URL:http://www.tba.org/tba_files/TCCA/PHIPPSDW.OPN.WP6 MORRIS ALLEN RAY, v. STATE OF TENNESSEE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: JOHN R. CALDWELL CHARLES W. BURSON P.O. Box 898 Attorney General and Reporter Fayetteville, TN CHARLETTE REED CHAMBERS Counsel for the State MIKE MCCOWN District Attorney General GARY M. JONES ROBERT CRIGLER Assistant District Attorneys General First Paragraph: The Petitioner appeals from the denial of his petition for post-conviction relief after a hearing was conducted by the trial court. He was convicted of first degree murder. After exhausting his direct appeals, he brought this petition for post conviction relief. The trial court denied the Petitioner's post-conviction petition because the Petitioner did not meet the burden of proof necessary to grant the Petitioner a new trial. We agree with the trial court. URL:http://www.tba.org/tba_files/TCCA/RAYMA.OPN.WP6
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