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TBALink Opinion-Flash
March 22, 1996 -- Volume #2 -- Number #30
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.
- This Issue:
- New Opinons From TSC : 0
- New Opinons From TCA : 7
- New Opinons From TCCA : 10
- New Opinons From AG : Pending
- New Opinons From TCA : 7
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plain text version of the opinion.
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WP 6.0 document. version of the opinion.
- Click the URL Link at end of each Opinion Paragraph below. This option will allow you to download the original WP 6.0 document.
Jim Moore
TBALink Co-Chief Editor
MARCUS ALLEN, v CHRISTINE BRADLEY, COMMISSIONER, DEPARTMENT OF CORRECTION, Court:TCA Charles W. Burson, Attorney General and Reporter, Counsel for State Marcus Allen, Pro Se First Paragraph: This appeal involves an inmate's allegations that his release eligibility date was improperly calculated by the Tennessee Department of Correction. Plaintiff-Appellant, Marcus Allen ("Allen"), petitioned the chancery court for a declaratory judgment seeking, inter alia, a new calculation of his parole and release eligibility dates. URL:http://www.tba.org/tba_files/TCA/ALLENMAR.OPN.WP6
MARY POOR AYERS, v. JAMES OLIVER AYERS,
Court:TCA
Mark A. Rassas
RASSAS & RASSAS
Clarksville, TN
ATTORNEY FOR PLAINTIFF/APPELLEE
William L. Harbison
SHERRARD & ROE, P.L.C.
Nashville, TN
ATTORNEY FOR DEFENDANT/APPELLANT
First Paragraph:
This is a divorce case in which the principal bone of
contention is the division of marital property, but the
unusual procedure in the Trial Court must also be reviewed.
URL:http://www.tba.org/tba_files/TCA/AYERSMP.OPN.WP6
STATE OF TENNESSEE, EX REL FIRST AMERICAN NATIONAL BANK and
DOUBLE M PARTNERS,
v.
CITY OF FRANKLIN MUNICIPAL PLANNING COMMISSION,
Court:TCA
Michael L. Dagley
Farris, Warfield & Kanady
Nashville, TN
ATTORNEY FOR PLAINTIFF/APPELLANT
Douglas Berry
Weed, Hubbard, Berry & Doughty
Nashville, TN
ATTORNEY FOR DEFENDANT/APPELLEE
First Paragraph:
This is an appeal taken from the trial court's refusal to
issue a writ of mandamus to the Appellee City of Franklin
Municipal Planning Commission ("FMPC") to conduct a hearing
and rule on the application of the Appellants-Relators First
American National Bank ("First American") and Double M
Partners ("Double M") for issuance of a site permit to build
a convenience storage facility at an intersection in
Franklin, Tennessee, and dismissing the complaint for
mandamus and for declaration that City of Franklin zoning
ordinance 94-16 was invalid.
URL:http://www.tba.org/tba_files/TCA/BANK.CTA.WP6
FIRST TENNESSEE BANK NATIONAL ASSOCIATION,
v.
THOROUGHBRED MOTOR CARS, INC.,
Court:TCA
JOHN S. HICKS and KATHERINE A. BROWN, Baker, Donelson,
Bearman & Caldwell, Nashville, Attorneys for
Plaintiff/Appellee
ROBERT E. BOSTON and DAVID E. LEMKE, Waller, Lansden, Dortch
& Davis, Nashville, Attorneys for Defendant/Appellee
First Paragraph:
First Tennessee Bank National Association (plaintiff) filed
suit in the Chancery Court of Davidson County against
Thoroughbred Motor Cars, Inc. (defendant) seeking to recover
damages incurred as a result of defendants alleged breach
of an asset purchase agreement to which it claimed to be a
third party beneficiary. Defendant filed a motion to
dismiss pursuant to T.R.C.P. 9.01 and 12.02(6), contending
that plaintiffs complaint failed to state a claim upon
which relief could be granted because it was not a party or
an intended beneficiary of the asset purchase agreement and
therefore lacked standing to sue under the agreement.
URL:http://www.tba.org/tba_files/TCA/FIRSTTBK.OPN.WP6
JANET K. FLORENCE, v. DAVID G. FLORENCE,
Court:TCA
H. Thomas Parsons,
PARSONS, NICHOLS & JOHNSON, Manchester, Tennessee
Attorney for Plaintiff/Appellant.
Albert F. Moore,
NEAL & HARWELL, Nashville, Tennessee
Attorney for Defendant/Appellee.
First Paragraph:
This is a modification of child support case involving a
noncustodial parent whose net monthly income exceeds $6,250.
Appellant, Janet K. Florence, and Appellee, David G.
Florence, are the parents of four daughters who were ages
17, 15, 13 and 10 at the time of trial. The final divorce
decree, entered in November 1993, awarded custody of the
children to Ms. Florence and ordered Dr. Florence to pay
child support in the amount of $2,500 per month.
URL:http://www.tba.org/tba_files/TCA/FLORENCE.OPN.WP6
HERMITAGE HOUSE SQUARE, L.P., v. WALTER D. ENGLAND,
Court:TCA
THOMAS F. BLOOM
Nashville, TN
Attorney for Plaintiff/Appellant
THOMAS E. STEWART
Madison, TN
Attorney for Defendant/Appellee
First Paragraph:
The payee on a promissory note sued the maker in General
Sessions Court for payment of the last $1,500 due on it.
The court entered judgment for the payee. The maker
appealed, and filed a complaint in Circuit Court which was
consolidated with his appeal. The complaint alleged that
the obligation on the note could not be enforced, because it
represented payment on an illegal transaction. The makers
argument was that the note represented a commission on a
sale of real estate, in favor of an individual who was not a
real estate broker or agent, in violation of Tenn. Code Ann.
62-13-101 et seq.
URL:http://www.tba.org/tba_files/TCA/HERMITAG.OPN.WP6
DAVID HOWARD and wife DESSIE HOWARD,
v.
STEVE MATHIS d/b/a MATHIS CONSTRUCTION COMPANY,
Court:TCA
LYNN PERRY, Cleveland, for Appellants
D. MITCHELL BRYANT of JENNE, SCOTT & BRYANT, Cleveland,
for Appellee
First Paragraph:
This case arose out of a dispute between the parties over
the construction of the plaintiffs residence. The
plaintiffs, husband and wife, sued their contractor for
damages caused by breach of the parties' written contract,
and for removal of a contractors lien filed against their
residence. They also sought damages arising out of the
filing of the lien. The defendant filed a counterclaim for
monies due for work performed under the contract and for
damages, including attorney fees.
URL:http://www.tba.org/tba_files/TCA/HOWARD.OPN.WP6
STATE OF TENNESSEE, v. JAMES E. ALLRED,
Court:TCCA
For the Appellant: For the Appellee:
Mack Garner Charles W. Burson
District Public Defender Attorney General / Reporter
318 Court Street
Maryville, TN 37804 George Linebaugh
Assistant Attorney General
Michael L. Flynn
District Attorney General
Ed Bailey
Asst. District AG
First Paragraph:
The appellant, James E. Allred, pled guilty in the Circuit
Court of Blount County to violating the Motor Vehicle
Habitual Offenders Act, a class E felony. Tenn. Code Ann.
55-10-616(b) (1993). The trial court sentenced the
appellant to 2 years incarceration in the Tennessee
Department of Correction as a standard, range I offender.
Tenn. Code Ann. 40-35-112(a)(5)(1990). The trial court
then granted the appellant an alternative sentence of split
confinement, comprising 180 days incarceration in the county
jail followed by a period of supervised probation. Tenn.
Code Ann. 40-35-104(c)(4)(1994 Supp.); Tenn. Code Ann.
40-35-306 (1990).
URL:http://www.tba.org/tba_files/TCCA/ALLREDJE.OPN.WP6
STATE OF TENNESSEE, v. DAVID BROCK,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
RANDY G. ROGERS CHARLES W. BURSON
P.O. Box 507 Attorney General and Reporter
Athens, TN 37371-0507
EUGENE J. HONEA
Assistant Attorney General
TIMOTHY F. BEHAN
Legal Assistant
JERRY N. ESTES
District Attorney General
First Paragraph:
This is an appeal as of right pursuant to Rule 3 of the
Tennessee Rules of Appellate Procedure. The Defendant was
convicted on a jury verdict of two counts of assault, two
counts of statutory rape, and four counts of contributing to
the delinquency of a minor.
URL:http://www.tba.org/tba_files/TCCA/BROCKDAV.OPN.WP6
STATE OF TENNESSEE, v. DAVID ARNOLD CROSS,
Court:TCCA
For Appellant: For Appellee:
Richard W. DeBerry Charles W. Burson
Asst. Public Defender Attorney General & Reporter
24th Judicial District
P.O. Box 663 Michael J. Fahey, II
Camden, TN 38320 Assistant Attorney General
John Overton
Asst. District Attorney General
First Paragraph:
The defendant, David Arnold Cross, was convicted for rape of
a child. The trial court imposed the maximum, Range I
sentence of twenty-five (25) years. In this appeal of
right, the defendant claims the evidence was insufficient to
support his conviction and that the sentence was excessive.
URL:http://www.tba.org/tba_files/TCCA/CROSSDAV.OPN.WP6
STATE OF TENNESSEE, v. DAVID W. CROWDER,
Court:TCCA
For the Appellant: For the Appellee:
Michael L. Debusk Charles W. Burson
5344 N. Broadway Attorney General of TN
Knoxville, TN 37918 and
Michael E. Moore
Solicitor General
and
Gina J. Barham
Deputy Attorney General of TN
William Paul Phillips
District Attorney General
and
Clifton H. Sexton
Assistant District AG
First Paragraph:
The defendant, David W. Crowder, entered guilty pleas in the
Criminal Court of Union County for theft of property valued
at over ten thousand dollars, a Class C felony, and simple
possession of marijuana, a Class A misdemeanor. He received
a sentence of three years as a Range I, standard offender
for the theft conviction concurrent with a sentence of
eleven months and twenty-nine days for the possession of
marijuana conviction and was placed on unsupervised
probation.
URL:http://www.tba.org/tba_files/TCCA/CROWDERD.OPN.WP6
BILL R. DIXON, JR., v. STATE OF TENNESSEE,
and CONCURRING OPINION
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
DONALD ALLEN
Assistant District AG
First Paragraph:
The Petitioner, Bill Dixon, brings this appeal after the
trial court's dismissal of his petition for post-conviction
relief. The Petitioner sought post-conviction relief
alleging that his guilty plea was not entered voluntarily,
understandingly, and knowingly, and further alleging that he
received ineffective assistance of counsel preceding,
during, and after the entry of his guilty plea. After
conducting an evidentiary hearing, the trial court denied
relief.
URL:http://www.tba.org/tba_files/TCCA/DIXONBR.OPN.WP6
URL:http://www.tba.org/tba_files/TCCA/DIXONBR.CON.WP6
STATE OF TENNESSEE, v. DENNIS LIVESAY,
Court:TCCA
FOR THE APPELLEE: FOR THE APPELLANT:
CRAIG L. GARRETT CHARLES W. BURSON
Paine, Garrett & Bray Attorney General/Reporter
Attorneys at Law
226 E. Broadway Avenue EUGENE J. HONEA
Maryville, TN 37801-2404 Assistant Attorney General
MIKE FLYNN
District Attorney General
PHIL MORTON
Asst District AG
First Paragraph:
This is an appeal by the State of Tennessee from an order of
the trial court dismissing a charge of driving while under
the influence of an intoxicant. The trial court judge
dismissed the charge because he found that law enforcement
authorities violated the Defendant's constitutional right to
due process when they refused to allow the Defendant's
personal physician to come to the jail and procure an
additional sample of blood from the Defendant for the
purpose of having performed an independent laboratory
examination to determine his blood alcohol content.
URL:http://www.tba.org/tba_files/TCCA/LIVESAYD.OPN.WP6
STATE OF TENNESSEE, v. JAMES MCCULLEY,
Court:TCCA
For Appellant: For Appellee:
H. Chris Trew Charles W. Burson
Higgins, Biddle, Attorney General and Reporter
Chester & Trew
20 Washington Ave. NW Darian B. Taylor
P.O. Box 410 Assistant Attorney General
Athens, TN 37303 Criminal Justice Division
Jerry N. Estes
District Attorney General
Sarah Bird
Asst. District Attorney General
First Paragraph:
The defendant, James McCulley, was convicted in separate
trials of two counts of aggravated robbery. The trial court
imposed a Range III sentence of thirty years for each count
and ordered the sentences to run consecutively.
URL:http://www.tba.org/tba_files/TCCA/MCCULLEY.OPN.WP6
DARRELL LYNN WEST, v. STATE OF TENNESSEE,
Court:TCCA
For the Appellant: For the Appellee:
Leslie M. Jeffress Charles W. Burson
1776 Riverview Tower Attorney General and Reporter
900 S. Gay Street
Knoxville, TN 37902 Charlette Reed Chambers
Assistant Attorney General
Randall E. Nichols
District Attorney General
Zane Scarlett
Asst. District Attorney General
First Paragraph:
The appellant, Darrell Lynn West, appeals the dismissal of
his petition for post-conviction relief without an
evidentiary hearing. After reviewing the record, we affirm
the judgment of the post-conviction court.
URL:http://www.tba.org/tba_files/TCCA/WESTDL.OPN.WP6
STATE OF TENNESSEE, v. TONY LYNN ZEOLIA,
Court:TCCA
For the Appellant: For the Appellee:
Deborah Black Huskins Charles W. Burson
Office of Public Defender Attorney General/Reporter
142 East Market Street
Johnson City, TN 37601 Michelle L. Lehmann
Assistant Attorney General
David E. Crockett
District Attorney General
Joe C. Crumley, Jr.
Asst. District AG
First Paragraph:
The appellant, Tony Zeolia, pled guilty in the Criminal
Court of Washington County to four counts of arson, a class
C felony. See Tenn. Code Ann. 39-14-301(b)(1991). For each
count, the appellant was sentenced as a range I standard
offender to five years incarceration with the Tennessee
Department of Correction. The trial court ordered that the
sentences be served concurrently.
URL:http://www.tba.org/tba_files/TCCA/ZEOLIA.OPN.WP6
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