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.
There are three ways to get the full opinion from the Web: (TBALink members only)
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JOHN WAYNE BALDWIN, v. SHERRY DARLENE BALDWIN, Court:TCA JEAN MUNROE, Knoxville, for Appellant. A. BENJAMIN STRAND, JR., Dandridge, for Appellee. First Paragraph: This appeal arises from a divorce case. All issues were stipulated except the issue of appellant's right of visitation with the parties' minor child. The trial court granted restricted visitation privileges to the appellant. We reverse the judgment of the trial court and remand the case for a further hearing. URL:http://www.tba.org/tba_files/TCA/BALDWINJ.OPN.WP6 Robert Bean, Franklin Shaffer, David Autry, Mack Roberts, Kevin Antle, Tom Nichols, Tammie Beasley, and Roxanne Luce, v. Ned Ray McWherter, in his capacity as Governor of the State of Tennessee, Charles W. Burson, Attorney General of the Sate of Tennessee, Tennessee Wildlife Resources Commission, and Gary Myers, Director of the Wildlife Resources Agency, Court:TCA ELIZABETH P. McCARTER Senior Counsel Office of the Attorney General F. CLAY BAILEY, JR. Tune, Entrekin & White ATTORNEY FOR PLAINTIFFS/APPELLEES First Paragraph: Defendants/appellants appeal from the chancery courts decision overruling appellants motion for summary judgment and holding that Tennessee Code Annotated section 70-4-403(1), (3) unlawfully delegates legislative authority to appellants, the Tennessee Wildlife Resources Commission (TWRC) and the Commissioner of Agriculture (Commissioner). URL:http://www.tba.org/tba_files/TCA/BEAN.OPN.WP6 CANONIE ENERGY, INC., and WGI, INC. v. RODNEY KING, MARK HOLBROOK, AMERICAN RESOURCES MANAGEMENT, INC., AMERICAN GAS TECHNOLOGIES, INC., AMERICAN ENERGY EXPLORATION, INC., BERROD, INC., RICK CASTOR, and McCROME, LTD., INC. Court:TCA WILLIAM P. SNYDER and ADRIENNE L. ANDERSON OF KNOXVILLE FOR APPELLANTS MARK HOLBROOK, McCROME, LTD., INC., AMERICAN RESOURCE MANAGEMENT, INC., AMERICAN ENERGY EXPLORATION, INC., and AMERICAN GAS TECHNOLOGIES, INC. H. BRUCE GUYTON OF KNOXVILLE FOR APPELLEES First Paragraph: The Defendants appeal a summary judgment entered in favor of the Plaintiffs for the enforcement of a settlement agreement. The facts of this case are somewhat complex. Canonie Energy, Inc. (CEI) and WGI, Inc. (WGI), which shall be collectively referred to as Plaintiffs, entered into a venture with American Resource Management, Inc. (ARM), American Energy Exploration, Inc., (AEX) and Coal Creek Manufacturing Company (Coal Creek). The venture, called "the Blue Gem Project," was for the exploration of oil and natural gas in Anderson and Morgan counties. The venture also included the drilling and construction of oil and natural gas wells and the sale of oil and natural gas produced by those wells. URL:http://www.tba.org/tba_files/TCA/CANONIE.OPN.WP6 DORA BELL CLARK, v. JAMES LEWIS CLARK, Court:TCA SAM P. ZERILLA Martin, Zerilla & Moon Attorney for Appellant PATRICIA ANN ODELL Higgs, Armstrong, White & Johnson, Attorneys Attorney for Appellee First Paragraph: These parties were divorced in March, 1986. They have one minor child whose custody was awarded to the appellee mother. The initial amount of child support is unclear; but whatever the amount it was increased to $200.00 per month by Order entered on May 23, 1990 pursuant to petition filed and heard. URL:http://www.tba.org/tba_files/TCA/CLARKDB.OPN.WP6 FIRST AMERICAN TRUST COMPANY, Executor of the Estate of Frances A. Oman, Deceased, v. FRANKLIN-MURRAY DEVELOPMENT COMPANY, L.P., Court:TCA CHARLES A. TROST JOSEPH A. WOODRUFF Nashville, Tennessee THOMAS V. WHITE Nashville, Tennessee Attorneys for Plaintiff/Appellee JOHN A. DAY DONALD CAPPARELLA Nashville, Tennessee GUY C. NICHOLSON Los Angeles, CA Attorneys for Defendant/Appellant First Paragraph: The Chancery Court of Williamson County awarded the earnest money in a real estate transaction to the seller, finding that the purchaser had breached the contract. On appeal the purchaser contends that the seller failed to deliver a marketable title and that there are factual disputes that preclude granting summary judgment to the seller. We affirm the trial courts decision. URL:http://www.tba.org/tba_files/TCA/FIRSTAM.OPN.WP6 JAMES T. FITE, v. STATE OF TENNESSEE, BD OF PAROLES, ET AL., Court:TCA JAMES T. FITE, #124241 N.E.C.C. Mountain City, Tennessee Pro Se/Petitioner/Appellant CHARLES W. BURSON Attorney General and Reporter EUGENE J. HONEA Assistant Attorney General Attorney for Respondents/Appellees First Paragraph: James T. Fite, an inmate in the Tennessee State Correctional System, petitioned the Chancery Court of Davidson County for a Writ of Certiorari. Mr. Fite asked that the court review the refusal of the Board of Paroles to release him on parole. The court dismissed his petition for lack of subject matter jurisdiction, because it had been filed more than sixty days after the Board's decision. We affirm the trial court, but base our decision on the ground that Mr. Fite has failed to state a claim upon which relief can be granted. See Tenn. R. Civ. P. 12.02(6). URL:http://www.tba.org/tba_files/TCA/FITE.OPN.WP6 DEMETREOUS FLENGAS v. KIMBERLY DENISE FLENGAS Court:TCA MARVIN BERKE OF CHATTANOOGA FOR APPELLANT LESLIE B. McWILLIAMS OF CHATTANOOGA FOR APPELLEE First Paragraph: Demetreous Flengas, the husband, and Kimberly Denise Flengas, the wife, were granted an absolute divorce in September 1994 in Hamilton County. Shortly thereafter, the Trial Court entered its memorandum opinion and order which directed the division of the parties' assets and liabilities. It is from this order that the husband appeals. URL:http://www.tba.org/tba_files/TCA/FLENGAS.OPN.WP6 LUVELL L. GLANTON, ET AL., v. SHELBY INSURANCE COMPANY, ET AL., Court:TCA Tusca R. S. Alexis, Nashville, Tennessee Attorney for Plaintiffs /Appellants. C. Hayes Cooney, WATKINS, McGUGIN, McNEILLY & ROWAN, Nashville, Tennessee Attorney for Defendants/Appellees. First Paragraph: This case is the converse of the typical case where the insured is insisting that the insurer settle a claim against the insured within policy limits, thus protecting the insured from a potential judgment in excess of the policy limits. URL:http://www.tba.org/tba_files/TCA/GLANTON.OPN.WP6 BONNIE LYNNE LUDWIG HEZEL, v. WILLIAM MORRIS HEZEL, Court:TCA WILLIAM MORRIS HEZEL Memphis, Tennessee Appellant Pro Se CHARLES A. SEVIER The Sevier Law Firm Memphis, Tennessee Attorney for Appellee First Paragraph: It is necessary that we reiterate the in-court statement of the Presiding Judge that our review of this case is de novo on the record, accompanied with the presumption that the judgment is correct unless the evidence otherwise preponderates. Tenn. R. App. P., Rule 13(d). We do not try the case de novo; our jurisdiction is to review for errors of fact or law, subject to the presumption, and we cannot substitute our judgment for that of the trial judge. URL:http://www.tba.org/tba_files/TCA/HEZEL.OPN.WP6 FLOYD EZELL JACKSON, v. STELLA L. SMITH JACKSON, Court:TCA Stephen R. Leffler, Memphis, Tennessee Attorney for Plaintiff/Appellant. Mitchell D. Moskovitz, Memphis, Tennessee Attorney for Defendant/Appellee. First Paragraph: The marriage between Floyd Ezell Jackson (Husband) and Stella L. Jackson (Wife) ended after some 21 years when the trial court found that both parties shall be awarded a divorce pursuant to T.C.A. 36-4-129. URL:http://www.tba.org/tba_files/TCA/JACKSONF.OPN.WP6 LINELL JEFFRIES, v. JOE JEFFRIES, JR., Court:TCA LINELL JEFFRIES Memphis, TN Pro Se Appellant SAM ZERILLA Memphis, Tennessee Attorney for Appellee First Paragraph: This action for damages for malicious prosecution by brother against brother was filed in the General Sessions Court and in course was heard de novo by the Circuit Court without a jury. Judgment was entered for the plaintiff for $2,500.00 compensatory damages and $500.00 punitive damages. The defendant appeals pro se, and presents for review three issues which we reproduce in haec verba: URL:http://www.tba.org/tba_files/TCA/JEFFRIES.OPN.WP6 CYNTHIA C. LEES, Individually and as Trustee and Next of Friend of CAROLYN HOLDER GLASGOW, and R. H. PURSELL, Executor for the Estate of WAYNE B. GLASGOW, SR., v. HICKORY POINTE LIMITED PARTNERSHIP, NATIONSBANK OF TENNESSEE, N.A., and ROBERT E. WOOD, Court:TCA Phillip North and David Kimbrough of North, Pursell & Ramos of Nashville For Appellees Randal S. Mashburn and Darwin A. Hindman, III, of Baker, Donelson, Bearman & Caldwell of Nashville For Appellants First Paragraph: This case involves the validity of two judgment liens on real estate. Plaintiffs, Cynthia Lees and R H. Pursell, obtained judgments against Wayne B. Glasgow, Jr., in Maury County, Tennessee and Williamson County, Tennessee, respectively. Both judgments were recorded in the Register's Office of Sumner County, Tennessee, on December 18, 1992. URL:http://www.tba.org/tba_files/TCA/LEESCC.OPN.WP6 JACK LINDSAY, v. GAYLE MARTIN LINDSAY, Court:TCA L. CAESAR STAIR, III, BERNSTEIN, STAIR & McADAMS, Knoxville, for Plaintiff-Appellant. BILL W. PETTY and WILLIAM T. MAGILL, O'CONNOR, PETTY, CHILD & BOSWELL, Knoxville, for Defendant-Appellee. First Paragraph: The Trial Judge entered judgment reducing the amount of alimony payable by defendant, and appellant has appealed. The parties were divorced in 1978, with an award of alimony of $3,500.00 per month to the wife. In 1986 the Court ordered a reduction of the alimony to $2,580.00 per month. The petition giving rise to this appeal was filed in 1995, and responding to the petition after an evidentiary hearing, the Trial Court, in arriving at his judgment, said: URL:http://www.tba.org/tba_files/TCA/LINDSAYJ.OPN.WP6 JAMES E. LINKOUS, and wife, PATRICIA FERGUSON LINKOUS, v. DOUGLAS E. BURKHART and WILLIAM A. BURKHART, Court:TCA PHILLIP C. LAWRENCE, Poole, Lawrence, Thornbury, Stanley & Morgan, Chattanooga, for Appellants. L. HALE HAMILTON, Spears, Moore, Rebman & Williams, Chattanooga, for Appellees. First Paragraph: This is a boundary line dispute. After a lengthy bench trial the Chancellor established a common boundary between the lands of the parties and entered judgment accordingly. From this judgment this appeal resulted. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCA/LINKOUS.OPN.WP6 PATSY McMICHAEL, v. JOHN McMICHAEL, Court:TCA SANDRA G. OLIVE, Olive & Olive, Knoxville, for Appellant. JOHNNY V. DUNAWAY, LaFollette, for Appellee. First Paragraph: This appeal results from the trial court's judgment modifying the provisions of a marital dissolution agreement entered into by these parties at the time of their divorce and incorporated into the final judgment. Mr. McMichael petitioned the trial court for a modification because of a substantial decrease in his salary. The trial court granted him relief. Mrs. McMichael sought relief in this court. See McMichael v. McMichael, No. 03A01-9402-CH 00044, URL:http://www.tba.org/tba_files/TCA/MCMICHAL.OPN.WP6 ROBERT P. MASON, v. RICK WYKLE and wife CHERYL WYKLE Court:TCA DEBORAH A. YEOMANS, Johnson City, for appellants. SANDRA LEE STANBERY, Greenville, for appellee. First Paragraph: This case arose from a Detainer Warrant filed in the general sessions court by the plaintiff, Robert Mason, against the defendants, Rick and Cheryl Wykle. The Wykles answered the warrant, denying that they owed the amount sued for by the plaintiff. In addition, they filed a counter complaint alleging, breach of contract, outrageous conduct, property damage and violation of the Tennessee Consumer Protection Act, T.C.A. 47-18-101. URL:http://www.tba.org/tba_files/TCA/MASONRP.OPN.WP6 JAMES MILLER v. MILLER BROTHERS FARMS, INC. GARRY MILLER and ALLEN MILLER Court:TCA JOHN W. CLEVELAND OF SWEETWATER FOR APPELLANT JEFFREY L. CUNNINGHAM OF ATHENS FOR APPELLEES First Paragraph: This is the second appeal in a continuing dispute between four of the sons of Andrew K. Miller, deceased; namely, James Miller, Larry L. Miller, Garry Miller and Allen Miller. URL:http://www.tba.org/tba_files/TCA/MILLERJA.OPN.WP6 FRANK O'LEARY AND WIFE, JOANN O'LEARY, AND LARRY JAMES BROCK, SR., AND WIFE, HAZEL CHADWICK BROCK, v. LEONARD E. HALL AND WIFE, ANN C. HALL, AND JAMES CLEMONS AND WIFE, RUTH CLEMONS, Court:TCA GARY R. PATRICK PATRICK, BEARD, RICHARDSON, P.C. Chattanooga, Tennessee Attorney for Appellants MICHAEL A. WAGNER WAGNER, NELSON & WEEKS Chattanooga, Tennessee Attorney for Appellees First Paragraph: Plaintiffs-Appellants, Frank and Joanne O'Leary and Larry J. and Hazel C. Brock, filed suit requesting an injunction to prohibit the Defendants-Appellees, Leonard and Ann Hall and James and Ruth Clemons, from subdividing the Halls' lot, which lies between the O'Learys' and the Brocks' land. The lower court denied Appellants' request for an injunction. URL:http://www.tba.org/tba_files/TCA/O'LEARY.OPN.WP6 CHARLES GEORGE PETTY, v. SUSAN FLORINTINE PETTY, Court:TCA DICK CLARK CLARK, BALTIMORE AND REEVES Nashville, Tennessee Attorney for Appellant DOUGLAS THOMPSON BATES, III Centerville, Tennessee Attorney for Appellee First Paragraph: This appeal raises several questions concerning the lower court's division of marital property pursuant to a final decree of divorce. Plaintiff-Appellant, Charles George Petty ("Husband"), appeals the trial court's award of certain real property to Defendant-Appellee, Susan Florintine Petty ("Wife"), as well as the lower court's valuation of Husband's pension. URL:http://www.tba.org/tba_files/TCA/PETTYCG.OPN.WP6 MICHAEL RAY PINSON, v. O.K. SMITH, JR., M.D. and NELWYN TODD PORTER, Executrix of the Estate of IRA FORD PORTER, M.D., Deceased Court:TCA LEE M. GREER, III RALPH WOODSON FARMER, JR. Greer & Greer HUBERT BAILEY JONES 114 S. Poplar Street Farmer, Moore, Jones, Paris, TN Hamilton & Lay P.O. Box 385 202 S. Main Street Attorney/Plaintiff/Appellant P. O. Box 763 Dyersburg, TN 38025-0763 Attorneys for Appellee Gilreath & Associates SIDNEY W. GILREATH THOMAS H. RAINEY RICHARD L. DUNCAN MARTY R. PHILLIPS 550 Main Avenue Rainey, Kizer, Butler, Knoxville, TN Reviere & Bell Jackson, TN 38302-1147 Attorneys for Appellee Attorneys/Plaintiff/Appellant JAMES M. GLASGOW 127 S. First Street P. O. Box 250 Union City, TN 38281-0250 Attorney for Appellee First Paragraph: This action for damages for asserted medical malpractice, filed October 15, 1987 in the Circuit Court of Weakley County, was dismissed on Motion for Summary Judgment, Rule 56, Rules of Civ. Pro. The Order granting the Motion, which concluded the rights of the plaintiff, was entered on August 18, 1994. URL:http://www.tba.org/tba_files/TCA/PINSONM.OPN.WP6 WILLIAM HEATH RILEY, v. KAREN DIANA RILEY, Court:TCA DOROTHY J. POUNDERS MARTIN B. DANIEL Memphis, Tennessee Attorneys for Appellant LANGDON UNGER, JR. Martin, Tennessee Attorney for Appellee First Paragraph: The issue is whether the trial court erred in confiding custody of the four-year old son of the parties to his father. We think not, because appellate review is de novo on the record accompanied with the presumption that the judgment is correct unless the preponderance of the evidence otherwise preponderates. Tenn. R. App. P., Rule 13(d). URL:http://www.tba.org/tba_files/TCA/RILEYWH.OPN.WP6 STELLA ROETGER, v. DAVID A. ROETGER, Court:TCA F. DULIN KELLY Hendersonville, Tennessee Attorney for Plaintiff/Appellee TIMOTHY L. TAKACS Hendersonville, Tennessee Attorney for Defendant/Appellant First Paragraph: The trial court granted Mrs. Roetger an absolute divorce and custody of the parties' minor child. The court also divided the marital property, and ordered Mr. Roetger to pay child support, rehabilitative alimony and attorney fees. Mr. Roetger appealed the award of alimony and attorney fees. We affirm the trial court. URL:http://www.tba.org/tba_files/TCA/ROETGER.OPN.WP6 SAFECO INSURANCE COMPANY OF AMERICA, v. SIMPSON BRIDGE COMPANY, INC., and WATER AND LIGHT COMMISSION OF GREENEVILLE AND THE TOWN OF GREENEVILLE, TENNESSEE, Court:TCA DEAN B. FARMER of HODGES, DOUGHTY & CARSON, Knoxville, for Appellant SAFECO INSURANCE COMPANY OF AMERICA. DAVID THOMAS BLACK of KISER AND BLACK, Maryville, for Appellant SIMPSON BRIDGE COMPANY, INC. RONALD W. WOODS and DANIEL D. COUGHLIN of MILLIGAN & COLEMAN, Greeneville, for Appellees. First Paragraph: This is an action brought by Safeco Insurance Company of America (Safeco) pursuant to the declaratory judgment act, T.C.A. 29-14-101, et seq. Safeco is the surety on a $488,100 performance bond issued to the Water & Light Commission of Greeneville and the Town of Greeneville, Tennessee (Greeneville). The bond was issued to secure the performance of Simpson Bridge Company, Inc.'s (Simpson Bridge) obligations under a contract with Greeneville for the construction of improvements to the Town's water system as well as the construction of a new raw water pumping system (collectively referred to as "the project"). URL:http://www.tba.org/tba_files/TCA/SAFECO.OPN.WP6 MARK SCOTT SMITH v. FAITH HORNE SMITH Court:TCA MICHAEL A. NOLAN OF KNOXVILLE FOR APPELLANT MARK SCOTT SMITH, Appellee, Pro Se First Paragraph: Appellant Faith Horne Smith appeals a divorce decree entered by the Chancery Court for Knox County wherein she raises the following four issues: URL:http://www.tba.org/tba_files/TCA/SMITHMS.OPN.WP6 RASHELL (SHELLY) TEEGARDIN and husband MARK A. TEEGARDIN, v. DENNIS AUSTIN and TACC, INC., and BEAULIEU OF AMERICA, INC., Court:TCA LARRY W. BRIDGESMITH and FAITH KALMAN REYES of CONSTANGY, BROOKS & SMITH, Nashville, for Appellant. JOHN D. BARRY of MILLIGAN, BARRY, HENSLEY & EVANS, Chattanooga, for Appellees. First Paragraph: In this appeal, we are asked to decide if an insurer is obligated to pay its insured's attorney a fee for collecting the insurer's subrogation interest. Under the facts of this case, we find the insurer is not obligated for the attorney's fee, and reverse the trial court's holding to the contrary. URL:http://www.tba.org/tba_files/TCA/TEEGARDI.OPN.WP6 DONALD L. TATUM and DOROTHY R. TATUM v. VERTIS J. WORSHAM and FREDA JOHNSON MICHEL Court:TCA WILLIAM G. SCHWALL OF CHATTANOOGA FOR APPELLANT MICHAEL A. ANDERSON OF CHATTANOOGA FOR DONALD L. TATUM and DOROTHY R. TATUM W. FRANK BROWN, III, OF CHATTANOOGA FOR FREDA JOHNSON MICHEL First Paragraph: This case originated from a complaint by Donald L. Tatum and Dorothy R. Tatum against Vertis J. Worsham for specific performance of a land sale agreement and damages. Mr. and Mrs. Tatum amended their complaint to join Freda Johnson Michel, a second mortgage holder of the subject property. Thereafter, Ms. Michel filed a cross-claim against Ms. Worsham, principally seeking a determination of the balance owing on the second mortgage which was in dispute. URL:http://www.tba.org/tba_files/TCA/TATUMDL.OPN.WP6 RUTH ANN TRIPP IND. and as next friend of SHARA TRIPP and SHAWNA TRIPP, v. DAVID HURST TRIPP, PAMELA ANN TRIPP AND MILDRED GOODMAN, Court:TCA Clinton R. Anderson of Morristown For Appellant Clarlie Allen of Oneida For Appellees First Paragraph: This is primarily a will contest suit brought by Ruth Ann Tripp, the widow of Douglas Tripp, a deceased beneficiary under the will of Nelia Hurst, deceased. Ms. Tripp brought suit in her own behalf and on behalf of the deceased beneficiary's two minor grandchildren. The complaint seeks construction of the Nelia Hurst will to determine ownership of certain real property described in the complaint. The suit also seeks a determination of plaintiff's rights to a driveway easement granted to her by deed. URL:http://www.tba.org/tba_files/TCA/TRIPP.OPN.WP6 TERESA J. WICKS, et al., v. VETERANS STEEL ERECTION CO., INC., et al., Court:TCA GERALD LARGEN, Kingston, for Appellant. CHARLES W. BURSEN, Attorney General and Reporter, and DIANNE STAMEY DYCUS, Senior Counsel, Attorney Generals Office, Nashville, for Appellee, Attorney General Charles Burson. First Paragraph: In this wrongful death action, the Trial court ruled against appellant, and appellant has appealed and well states the issue: URL:http://www.tba.org/tba_files/TCA/WICKS.OPN.WP6 ROBERT JOHN WILLIAMS,v. MARY ELIZABETH (WILLIAMS) EVANS, Court:TCA Judy Winegar Goans, Clinton, Attorney for the Appellant Mark Silvey, Knoxville, Attorney for the Appellee First Paragraph: The appellant sought an award of attorney fees of $31,205.48 and filed an affidavit in explanation of the hours her attorney had expended in this case, which involved the custody and support of one child. URL:http://www.tba.org/tba_files/TCA/WMS-RJ.OPN.WP6 BENNIE YEARBY, v. HENRY SHANNON, d/b/a UNITED TAXI STAND, Court:TCA ALARIC A. HENRY AND MICHAEL A. KENT, Luther, Anderson & Cleary, P.C., Chattanooga for Appellant. HUGH P. GARNER, Garner, Lewis & Prickett, Chattanooga, for Appellee. First Paragraph: This case originated in the General Sessions Court for Hamilton County. In plaintiff's civil warrant the plaintiff sought damages for personal injury from the defendants, Henry Shannon and David W. King. King was never served with process and he is not a party to this action. While the case was pending in the general sessions court, the parties, through their attorneys, reached a settlement whereby the defendant or his liability insurance company was to pay the plaintiff the sum of $4,500.00. URL:http://www.tba.org/tba_files/TCA/YEARBY.OPN.WP6 FRANK BELL, v. STATE OF TENNESSEE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Donald M. Lasley Charles W. Burson Attorney at Law Attorney General & Reporter Soddy-Daisy, TN Michael J. Fahey, II Assistant Attorney General Gary D. Gerbitz District Attorney General Thomas J. Evans Asst District Attorney General Rebecca J. Stern Asst District Attorney General First Paragraph: The appellant, Frank Bell, appeals as of right from a judgment of the trial court dismissing his suit for post-conviction relief after an evidentiary hearing. The trial court found that the appellant received the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, 9 of the Tennessee Constitution. In this Court, the appellant contends that he was denied his constitutional right to the effective assistance of counsel because trial counsel (a) failed to appeal the denial of his motion for psychiatric evaluation, (b) exercised undue influence in getting the appellant to plead guilty after the trial had commenced, (c) failed to keep him informed, (d) failed to investigate and present all available witnesses, and (e) failed to raise the issue of double jeopardy as to the offenses of burglary of an automobile and attempt to commit theft over $1,000. URL:http://www.tba.org/tba_files/TCCA/bell2.opn.WP6 STATE OF TENNESSEE, v. RICHARD N. BOUGHNER, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: GUY R. DOTSON, JR. CHARLES W. BURSON 102 South Maple St. Attorney General & Reporter Murfreesboro, TN ELIZABETH T. RYAN Assistant Attorney General GUY R. DOTSON District Attorney General JOHN PRICE Asst. District Attorney General First Paragraph: On July 30, 1994, the defendant was stopped for driving under the influence of an intoxicant (DUI). His results from a breath test on the Intoximeter 3000 indicated a blood alcohol level of .17 of one percent. He was indicted by the Rutherford County Grand Jury for DUI during its October 1994 session. The indictment returned against the defendant recites June 30, 1994, as the date of the offense. URL:http://www.tba.org/tba_files/TCCA/BOUGHNER.OPN.WP6 MICKEY ALLEN BROWN,v. STATE OF TENNESSEE, Court:TCCA For the Appellant: For the Appellee: Mickey Allen Brown, Pro Se Charles W. Burson TDOC # 130138 Attorney General of TN Turney Center, Unit 2B/49 and Route 1 Clinton J. Morgan Only, TN 37140-9709 Asst Attorney General of TN Victor S. Johnson, III District Attorney General and Cheryl Blackburn Assistant District AG First Paragraph: The petitioner, Mickey Allen Brown, appeals as of right from the Davidson County Criminal Court's summary dismissal of his pro se petition for post-conviction relief. On July 2, 1985, the petitioner pled guilty to assault with intent to commit first degree murder and received a twenty-year sentence. The sentence was to run concurrently with a thirty-year sentence he was serving in Florida. He completed his Florida confinement on December 3, 1991, and was transferred to Tennessee to serve the remainder of the Tennessee sentence. URL:http://www.tba.org/tba_files/TCCA/BROWNMA.OPN.WP6 JERRY BUTLER, v. STATE OF TENNESSEE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: GEORGE MORTON GOOGE CHARLES W. BURSON District Public Defender Attorney General and Reporter PAMELA J. DREWERY WILLIAM DAVID BRIDGERS Assistant Public Defender Assistant Attorney General JERRY WOODALL District Attorney General DON ALLEN Asst District Attorney General First Paragraph: This is an appeal pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. After an evidentiary hearing, the trial court denied the Petitioner's request for post-conviction relief from his guilty plea to aggravated sexual battery. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/BUTLERJ.OPN.WP6 STATE OF TENNESSEE, v. THOMAS EDWARD CAPPS, Court:TCCA For the Appellant: For the Appellee: John H. Henderson Charles W. Burson Asst District PD Attorney General of Tennessee 407 C Main Street and P.O. Box 68 Sarah M. Branch Franklin, TN 37065-0068 Joseph D. Baugh, Jr. District Attorney General and Donald Schwendimann Asst District Attorney General First Paragraph: The defendant, Thomas Edward Capps, appeals from his convictions in the Circuit Court of Hickman County for three counts of simple possession of cocaine. He received sentences of eleven months and twenty-nine days for each offense with two sentences to be served concurrently with one another but consecutively to the third. All three sentences were ordered to be served consecutively to a prior unserved sentence in Dickson County. URL:http://www.tba.org/tba_files/TCCA/CAPPSTE.OPN.WP6 JOHNNY L. COLWELL, v. STATE OF TENNESSEE, Court:TCCA For the Appellant: For the Appellee: John E. Herbison Charles W. Burson Attorney Attorney General and Reporter Nashville, TN 37204 Ellen H. Pollack Assistant Attorney General Criminal Justice Division Roger Moore Asst. District Attorney General First Paragraph: The petitioner, Johnny L. Colwell, appeals the trial court's dismissal of his petition for post-conviction relief. The single issue on appeal is whether the petition is barred by the statute of limitations. URL:http://www.tba.org/tba_files/TCCA/COLWELL.OPN.WP6 DAVID J. DABNEY, v. STATE OF TENNESSEE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: KIM G. SIMS CHARLES W. BURSON 1279 Lamar Ave. Attorney General & Reporter Memphis, TN 38104 DARIAN B. TAYLOR Attorney General JOHN W. PIEROTTI District Attorney General JAMES C. BEASLEY, JR. Asst. District Attorney General First Paragraph: The petitioner Dabney pled guilty to especially aggravated robbery and was sentenced to twenty years as a Range I standard offender. No direct appeal was taken. The petitioner filed a petition for post-conviction relief, alleging that his guilty plea was involuntary because unintelligently made and that he received ineffective assistance of counsel. After a hearing at which the petitioner and his trial counsel testified, the lower court denied relief. We affirm. URL:http://www.tba.org/tba_files/TCCA/DABNEY.OPN.WP6 STATE OF TENNESSEE, v. TREANOUS L. DAVIS, Court:TCCA For the Appellant: For the Appellee: Terry J. Canady Charles W. Burson 211 Printer's Alley Bldg. Attorney General of TN Suite 400 and Nashville, TN 37201 Ellen H. Pollack Asst Attorney General of TN Victor S. Johnson, III District Attorney General and Katrin Miller Asst District Attorney General First Paragraph: The defendant, Treanous L. Davis, was convicted in a jury trial in the Davidson County Criminal Court of attempt to commit second degree murder, a Class B felony, and attempt to commit aggravated robbery, a Class C felony. As a Range II, multiple offender, he was sentenced to seventeen years for the attempted murder and eight years for the attempted robbery with the sentences to be served consecutively. URL:http://www.tba.org/tba_files/TCCA/DAVISTL.OPN.WP6 STATE OF TENNESSEE v. JOHN EISOM, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Julie K. Pillow Charles W. Burson Assistant Public Defender Attorney General & Reporter P.O. Box 700 Somerville, Tennessee 38068 Michelle L. Lehmann Counsel for the State William Randolph Assistant Attorney General First Paragraph: This is an appeal as of right by the Appellant John Eisom, from a judgment of the Lauderdale County Criminal Court approving a jury verdict finding him guilty of second degree murder and two counts of aggravated assault. URL:http://www.tba.org/tba_files/TCCA/EISOM.OPN.WP6 STATE OF TENNESSEE, v. EDWARD LEROY HARRIS, Court:TCCA For the Appellant: For the Appellee: Paul J. Morrow, Jr. Charles W. Burson and Attorney General and Reporter Brock Mehler 704 18th Ave. South Christian S. Chevalier Nashville, TN 37203 Assistant Attorney General Al C. Schmutzer, Jr. District Attorney General Richard Vance Asst. District Attorney General First Paragraph: The appellant, Edward Leroy Harris, alias "Tattoo Eddie," seeks post conviction relief from his convictions of one count of armed robbery and two counts of premeditated first degree murder, entered by the Circuit Court of Sevier County in May, 1988, and the consequent imposition of one sentence of life imprisonment and two sentences of death by electrocution. The convictions and sentences were affirmed on appeal by the Tennessee Supreme Court. State v. Harris, 839 S.W.2d 54 (Tenn. 1992), cert. denied, -- U.S. --, 113 S. Ct. 1368 (1993). URL:http://www.tba.org/tba_files/TCCA/HARRISED.OPN.WP6 WILLIAM RAY HUTCHINS, v. STATE OF TENNESSEE, Court:TCCA For the Appellant: For the Appellee: Raymond C. Conkin, Jr. Charles W. Burson 152 Broad Street, Suite 207 Attorney General of TN Kingsport, TN 37660 and Michelle L. Lehmann Asst Attorney General of TN H. Greeley Wells, Jr. District Attorney General and Barry Staubus Assistant District Attorney General First Paragraph: The petitioner, William Ray Hutchins, appeals as of right from the dismissal of his petition for post-conviction relief by the Sullivan County Criminal Court. The petitioner was convicted of attempted second degree murder, a Class B felony, pursuant to a guilty plea and received a sentence of ten years as a Range I, standard offender to be served in the custody of the Department of Correction. The conviction was affirmed on direct appeal. State v. William Ray Hutchins, No. 03C01 9302-CR-00044, Sullivan Co. (Tenn. Crim. App. Dec. 7, 1993), app. denied (Tenn. Apr. 4, 1994). URL:http://www.tba.org/tba_files/TCCA/HUTCHINS.OPN.WP6 STATE OF TENNESSEE, v. M. STEVEN LILLY, Court:TCCA For the Appellant: For the Appellee: Gale K. Flanary Charles W. Burson Asst. Public Defender Attorney General and Reporter Post Office Box 839 Blountville, TN 37617 Michelle L. Lehmann Assistant Attorney General Criminal Justice Division H. Greeley Wells, Jr. District Attorney General David Overbay Asst. District Attorney General First Paragraph: The appellant, M. Steven Lilly, pled guilty in the Criminal Court of Sullivan County to two counts of sale of marijuana, class E felonies. He now appeals from the consequent imposition of two concurrent eighteen month sentences. The sole issue presented for our review is the trial court's denial of alternative sentencing. Specifically, the appellant argues that the trial court should have ordered a sentence of probation, intensive probation, or community corrections. URL:http://www.tba.org/tba_files/TCCA/LILLYMS.OPN.WP6 FRED RANEY, WARDEN, STATE OF TENNESSEE, v. BILLY MCGHEE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Billy McGhee, Pro Se Charles W. Burson T.D.O.C. NO. 109355 Attorney General & Reporter Cold Creek Correctional Facility Henning, TN Eugene J. Honea Assistant Attorney General First Paragraph: This is an appeal as of right by the Pro Se Appellant, Billy McGhee, from the judgment of the Lauderdale County Circuit Court, denying his Petition for Writ of Habeas Corpus. The Appellant contends in his single issue that he stated a cognizable constitutional claim pursuant to the habeas corpus statute and that the court erred in transforming the of habeas corpus into a petition for post-conviction relief and dismissing it as time barred. URL:http://www.tba.org/tba_files/TCCA/MCGHEE.OPN.WP6 STATE OF TENNESSEE v. RICARDO McCLELLAN, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: C.Michael Robbins Charles W. Burson Asst District PD Attorney General & Reporter Hunt S. Brown Assistant Attorney General Perry Hayes Assistant Attorney General First Paragraph: This is an appeal as of right by the appellant, Ricardo McClellan, from a judgment of conviction entered by the Circuit Court of Hardeman County. The appellant was charged with and convicted by a jury of delivery of a Schedule II controlled substance, to wit; cocaine, in an amount more than 0.5 grams pursuant to Tenn. Code Ann. 39-17-417. The trial judge sentenced the defendant to fourteen (14) years in the State Penitentiary as a Range II multiple offender, and affirmed the jury's twenty twenty thousand dollar ($20,000.) fine. The appellant presents the following arguments in support of his appeal from his conviction and sentence. URL:http://www.tba.org/tba_files/TCCA/MCLELLAN.OPN.WP6 STATE OF TENNESSEE, v. DOUGLAS A. MERRICK, Court:TCCA For the Appellant: For the Appellee: Mack Garner Charles W. Burson District Public Defender Attorney General of Tennessee 318 Court Street and Maryville, Tennessee Michelle L. Lehmann Asst Attorney General of TN Michael L. Flynn District Attorney General and Asst District Attorney General Blount County Courthouse First Paragraph: The defendant, Douglas A. Merrick, was convicted upon pleas of guilty in the Blount County Circuit Court of two counts of forgery and two counts of uttering a forged instrument, Class E felonies. He was sentenced as a Range I, standard offender to concurrent one-year sentences for each count and ordered to pay a total of $878.72 in restitution. His sentences are to be suspended and supervised probation imposed after he serves sixty days in the county jail. URL:http://www.tba.org/tba_files/TCCA/MERRICK.OPN.WP6 STATE OF TENNESSEE, v. JOSEPH SHANE POWELL, Court:TCCA For Appellant: For Appellee: George Morton Googe Charles W. Burson District Public Defender Attorney General & Reporter Pamela J. Drewery George Linebaugh Asst. Public Defender Counsel for the State Don Allen Asst. District Attorney General First Paragraph: The defendant, Joseph Shane Powell, entered guilty pleas to several theft and burglary charges arising out of both Madison and Chester Counties. The trial court approved a plea agreement which provided for an effective sentence of twelve years. The defendant was ordered to serve six months in jail and the balance of the sentence was to be served on probation. During the first year, the defendant was placed on intensive probation. At the end of this first year, the defendant was moved to regular probation. Two years later, the trial court revoked the probation and reinstated the twelve-year sentence. URL:http://www.tba.org/tba_files/TCCA/POWELL.OPN.WP6 STATE OF TENNESSEE v. THOMAS REED Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Jesse H. Ford, III Charles W. Burson Attorney at Law Attorney General & Reporter 111 West Main, Lower Level Jackson, Tennessee 38302 Clinton J. Morgan Counsel for the State James W. Thompson Assistant Attorney General First Paragraph: This is an appeal as of right by the Defendant, Thomas Reed, of his conviction in the Criminal Court for Madison County following a jury trial. The Defendant was convicted of aggravated burglary and was sentenced to a period of confinement of nine (9) years as a Range II Offender and fined one thousand dollars ($1,000.00). He presents two issues for review: URL:http://www.tba.org/tba_files/TCCA/REED.OPN.WP6 STATE OF TENNESSEE, v. JOHNNY ROBINSON, Court:TCCA For Appellant: For Appellee: George Morton Googe Charles W. Burson District Public Defender Attorney General and 450 James Robertson Parkway Pamela J. Drewery Nashville, TN 37243-0493 Assistant Public Defender 227 W. Baltimore Renee F. Videlefsky Jackson, TN 38301 Assistant Attorney General Don Allen and Nick Nicola Asst. Dist. AG First Paragraph: The defendant, Johnny N. Robinson, entered pleas of guilt to driving under the influence, third offense; driving on a revoked license; driving on the wrong side of the road; and vehicular assault. The trial court imposed the following sentences and fines: an 11 month and 29 day sentence at 75% and a $1,000 fine for the DUI; a six month sentence at 75% and a $250 fine for the driving on a revoked license; a 30 day sentence at 75% and a $50 fine for the driving on the wrong side of the road; and a four year, Range I sentence and a $500 fine for the vehicular assault. The sentences were ordered to be served concurrently. URL:http://www.tba.org/tba_files/TCCA/ROBINSN2.OPN.WP6 LARRY D. RUSSELL, v. STATE OF TENNESSEE, Court:TCCA For Appellant: For Appellee: Larry D. Russell Charles W. Burson Pro Se Attorney General & Reporter Cold Creek Correctional 450 James Robertson Parkway Facility Nashville, TN 37243-0493 P.O. Box 1000 Henning, TN 38041-1000 Michelle L. Lehmann Assistant Attorney General David C. Henry Asst. District Attorney General First Paragraph: The petitioner, Larry D. Russell, appeals from the trial court's dismissal of his pro se petition for post conviction relief. The single issue presented for our review is whether the trial court properly dismissed the petition as barred by the three-year statute of limitations without the appointment of counsel or an evidentiary hearing. Because we have been able to conclusively determine that the petitioner is not entitled to relief, the judgment is affirmed. URL:http://www.tba.org/tba_files/TCCA/RUSSELLL.OPN.WP6 STATE OF TENNESSEE, v. JOE W. SMITH, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: William D. Massey Charles W. Burson 100 North Main Street Attorney General and Reporter Suite 3010 (Appeal Only) Darian B. Taylor Cary Woods Assistant Atty. Gen. & Reporter 147 Jefferson Avenue Suite 1011 Memphis, Tennessee 38103 (Trial Only) John W. Pierotti District Attorney General James C. Beasley Assistant District Attorney General Amy P. Weirich Assistant District Attorney General First Paragraph: The appellant, Joe W. Smith, was indicted for murder in the first degree after he confessed to killing David Jones outside a pool hall in Shelby County. The appellant pled not guilty to the charge, was tried by a Shelby County jury and found guilty of second degree murder. His appeal pursuant to Rule 3(b) of the Tennessee Rules of Appellate Procedure challenges only the sentence imposed by the trial court. URL:http://www.tba.org/tba_files/TCCA/SMITHJOE.OPN.WP6 STATE OF TENNESSEE v. JEREMY WINSETT Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Charles D. Wright Charles W. Burson Attorney at Law Attorney General & Reporter Memphis Ellen H. Pollack Asst District Attorney General James H. Challen, III Asst District Attorney General John W. Pierotti District Attorney General First Paragraph: This is an appeal by permission of the Court of Criminal Appeals from Division VI of the Criminal Court for the Thirtieth Judicial District of Tennessee at Memphis. The appellant, Jeremy A. Winsett, presents an appeal of the judgment of that trial court affirming the District Attorney General's decision to deny pre-trial diversion in this case. The appellant is charged with two counts of vehicular homicide, having been arrested in this cause on or about May 26, 1992. URL:http://www.tba.org/tba_files/TCCA/WINSETT.OPN.WP6 STATE OF TENNESSEE v. SHAWN PHILLIP YEAGER, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Shana C. McCoy Charles W. Burson Asst. District PD Attorney General & Reporter B.P.R. #13597 P.O. Box 700 Somerville, TN 38068-0700 George P. Linebaugh, Jr. Counsel for the State Christopher S. Marshburn Assist. District AG First Paragraph: This is an appeal as of right by the Defendant, Shawn Phillip Yeager, of a sentence of the Circuit Court for Fayette County, following the Defendant's plea of guilty to the indictment charging, in count one, aggravated rape and, in count two, aggravated kidnapping. A sentencing hearing was had and the Defendant was sentenced to sixteen (16) years as to count one and nine (9) years as to count two, as a Range I, Standard Offender, both sentences to run concurrently. The Defendant presents one issue for review: whether the trial court erred in sentencing him to an enhanced punishment within the sentencing range based on the proof before the trial court. URL:http://www.tba.org/tba_files/TCCA/YEAGER.OPN.WP6
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