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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STATE OF TENNESSEE,v. TIM0THY D. HARRIS and CRAIG THOMPSON, and DISSENTING OPINION Court:TSC For Appellant: For Appellee Harris: Charles W. Burson Harry U. Scruggs Attorney General & Reporter Memphis, Tennessee Amy L. Tarkington David C. Stebbins Christina S. Shevalier (formerly/the Capital Case Assistant Attorneys General Resource Center) Nashville, Tennessee Columbus, Ohio Glenn I. Wright For Appellee Thompson Gerald Harris Paul F. Goodman John G. Oliva Assistant District Attorneys Nashville, Tennessee Memphis, Tennessee David C. Stebbins (formerly/the Capital Case Resource Center) Columbus, Ohio Carolyn Watkins Edward G. Thompson Assistant Public Defenders Memphis, Tennessee First Paragraph: The single issue in this consolidated appeal is purely a question of law and requires a determination of whether a remand for resentencing is appropriate when an appellate court in a capital case concludes the sole aggravating circumstance found by the original sentencing jury is legally invalid and sets aside the sentence of death. Because there is no legal principle which precludes the State from seeking the death penalty upon resentencing, a remand for that purpose is appropriate. URL:http://www.tba.org/tba_files/TSC/HARRISTD.OPN.WP6 URL:http://www.tba.org/tba_files/TSC/HARRISTD.DIS.WP6 STATE OF TENNESSEE, v. ANTHONY DARRELL DUGARD HINES, Court:TSC FOR APPELLANT: FOR APPELLEE: Brock Mehler (Appeal Only) Charles W. Burson Capital Case Resource Center Attorney General & Reporter Nashville, Tennessee Nashville, Tennessee Tom Bloom (Appeal Only) Amy L. Tarkington Rothchild & Assoc. Assistant Attorney General Nashville, Tennessee Nashville, Tennessee Steve Stack (Trial Only) Ashland City, Tennessee First Paragraph: This defendant was convicted of murder in the perpetration of armed robbery and sentenced to death. On direct appeal this Court affirmed defendant's conviction and remanded the case for resentencing because of erroneous jury instructions. URL:http://www.tba.org/tba_files/TSC/HINES.OPN.WP6 MACK BROWDER d/b/a MACK BROWDER & ASSOCIATES, v. LOGISTICS MANAGEMENT, INC., Court:TCA Jef Feibelman, Burch, Porter & Johnson of Memphis For Appellant John J. Heflin, III, Bourland, Heflin, Alvarez, Holley & Minor, of Memphis For Appellee First Paragraph: This case involves construction of a contract. Plaintiff Appellant Mack Browder, doing business as Mack Browder and Associates (Browder), appeals the trial courts grant of summary judgment to Defendant-Appellee, Logistics Management, Inc. (LMI). URL:http://www.tba.org/tba_files/TCA/BROWDER.OPN.WP6 STATE OF TENNESSEE, DEPARTMENT OF COMMERCE AND INSURANCE, ELAINE McREYNOLDS, COMMR., v. FIRSTTRUST MONEY SERVICES, INC., LINCOLN INVESTMENT PROPERTIES, INC., FIRSTTRUST, INC., Court:TCA ROBERT S. PATTERSON BOULT, CUMMINGS, CONNERS & BERRY Nashville, Tennessee Attorney for Appellants CHARLES W. BURSON Attorney General and Reporter JERRY L. SMITH Deputy Attorney General Nashville, Tennessee Attorney for Appellee First Paragraph: This case was filed by the Commissioner of the Department of Commerce and Insurance in the chancery court of Davidson County under the provisions of the Tennessee Financial Records Privacy Act. The Commissioner sought court approval to issue certain subpoenas duces tecum incident to an investigation of the defendant financial institutions. The trial court entered an order approving the issuance of the subpoenas and dismissing defendants counter-claim. Two of the defendants (FirstTrust Money Services, Inc. And Lincoln Investment Properties, Inc.) have appealed. For the reasons stated hereafter, we affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCA/FIRSTTRU.OPN.WP6 NINA ALICE KIMBLE, v. MICHAEL WAYNE KIMBLE, Court:TCA Michael L. Agee, AGEE & AGEE, Bartlett, Tennessee Attorney for Respondent/Appellant. Kathryn A. King, SHEA, KING & LANDERS, Memphis, Tennessee Attorney for Petitioner/Appellee. First Paragraph: The gravamen of this appeal is child support. Nina Alice Kimble and Michael Wayne Kimble were married in 1985, divorced in 1992 and will be referred to as Wife and Husband, respectively. When they married, Wife had a son from a previous marriage and Husband a daughter. Husband adopted the son but Wife did not adopt the daughter. URL:http://www.tba.org/tba_files/TCA/KIMBLE.OPN.WP6 RICHARD C. KING, and Wife, KIMBERLY KING, v. W.D. SCHOCK, INC., SOUTH CENTRAL BELL TELEPHONE COMPANY a/k/a BELLSOUTH TELECOMMUNICATIONS, INC., and CHARLES LARUE, Defendants/Appellees, NASHVILLE ELECTRIC SERVICE, VIACOM CABLEVISION a/k/a VIACOM INTERNATIONAL, INC., RICHARD LARUE, CARLOS LEWIS d/b/a CARLOS LEWIS & SON HOME MOVERS, METROPOLITAN NASHVILLE AIRPORT AUTHORITY and THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, ACTING BY AN THROUGH THE ELECTRIC POWER BOARD AND OPERATING UNDER THE NAME "NASHVILLE ELECTRIC SERVICE," Defendants. Court:TCA DAVID I. KOMISAR SANDRA L. RANDLEMAN 211 Printer's Alley Bldg. 333 Commerce Street, #2101 Suite 400 Nashville, TN 37201-3300 Nashville, TN 37201 ATTORNEY FOR DEFENDANT/APPELLEE BELLSOUTH TELECOMMUNICATIONS,INC. CASEY E. MORELAND Metropolitan Courthouse ROBERT L. ESTES 3rd Floor JOHN E. ANDERSON Nashville, TN 37201 Stewart, Estes & Donnell ATTORNEYS FOR Third National Financial Center PLAINTIFFS/APPELLANTS 424 Church Street, 14th Floor Nashville, TN 37219-2392 ATTORNEYS FOR DEFENDANT/APPELLEE W.D. SCHOCK COMPANY, INC. C. BENTON PATTON Manier, Herod, Hollabaugh & Smith 2200 One Nashville Place 150 Fourth Avenue North Nashville, TN 37219 CHRISTINA K. BOYER 4016 Farnam St. Omaha, NE 68127 ATTORNEYS FOR DEFENDANT/APPELLEE CHARLES LARUE First Paragraph: This is an appeal by plaintiffs/appellants, Richard and Kimberly King, from the trial court's order granting summary judgment to defendants/appellees, W. D. Schock, Co. ("Schock"), South Central Bell Telephone Co. a/k/a Bell South Telecommunications, Inc. ("Bell South"), and Charles LaRue. URL:http://www.tba.org/tba_files/TCA/KINGRCW.OPN.WP6 PATRICK McMATH AND JULIANNE McMATH, v. DR. DAVID SHARFMAN, Court:TCA Law Office of Don Owens, Andrew Hume Owens of Memphis Defendant-Appellee, For Appellants David M. Cook and W. Timothy Hayes, Jr., of Memphis For Appellee First Paragraph: This is a medical malpractice case dismissed by the trial court primarily via the operation of T.C.A. 29-26-116 (a)(3), the three year statute of repose for medical malpractice actions. URL:http://www.tba.org/tba_files/TCA/MCMATH.OPN.WP6 STATE OF TENNESSEE, DEPARTMENT OF COMMERCE AND INSURANCE, ELAINE McREYNOLDS, COMMR., v. FIRSTTRUST MONEY SERVICES, INC., LINCOLN INVESTMENT PROPERTIES, INC., FIRSTTRUST, INC., Court:TCA ROBERT S. PATTERSON BOULT, CUMMINGS, CONNERS & BERRY Nashville, Tennessee Attorney for Appellants CHARLES W. BURSON Attorney General and Reporter JERRY L. SMITH Deputy Attorney General Nashville, Tennessee Attorney for Appellee First Paragraph: This case was filed by the Commissioner of the Department of Commerce and Insurance in the chancery court of Davidson County under the provisions of the Tennessee Financial Records Privacy Act. The Commissioner sought court approval to issue certain subpoenas duces tecum incident to an investigation of the defendant financial institutions. The trial court entered an order approving the issuance of the subpoenas and dismissing defendants counter-claim. Two of the defendants (FirstTrust Money Services, Inc. And Lincoln Investment Properties, Inc.) have appealed. For the reasons stated hereafter, we affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCA/PLASTICS.OPN.WP6 VANLINER INSURANCE COMPANY, v. JANICE JESSING, Court:TCA PHILIP R. CRYE, JR. of RIDENOUR, RIDENOUR & FOX, Clinton, for Appellant. J. GREGORY OCONNOR and CHRISTOPHER D. HEAGERTY of CARPENTER & OCONNOR, Knoxville, for Appellee. First Paragraph: This case involves an agreement of indemnification. It arose out of the aftermath of a motor vehicle accident between the appellant Janice Jessing (Jessing) and Daniel Brown (Brown). Brown and his employer were insured under a liability insurance policy issued by the appellee Vanliner Insurance Company (Vanliner). In the instant action, Vanliner sought indemnification from Jessing for payments made by it in satisfaction of subrogation claims asserted against Vanliner by State Farm Insurance Company (State Farm) and Cotton States Insurance Company (Cotton States). Both of these insurers had made payments to or for their insured, the appellant Jessing, under Georgias no-fault insurance law. In support of its suit against Jessing, Vanliner relied upon language in a document entitled "Indemnifying Release" signed by Jessing when she settled her tort action against Brown, Vanliner, and others. URL:http://www.tba.org/tba_files/TCA/VANLINER.OPN.WP6 STATE OF TENNESSEE, v. BILLY ALDRIDGE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: H. Todd Taylor Charles W. Burson Assistant Public Defender Attorney General and Reporter 208 N. Mill Avenue 450 James Robertson Parkway P.O. Box 742 Nashville, Tennessee 37243-0493 Dyersburg, Tennessee (Appeal Only) Ellen H. Pollack Assistant Atty. Gen. & Reporter Clarence Cochran 450 James Robertson Parkway Assistant Public Defender Nashville, Tennessee 37243-0493 208 N. Mill Avenue P.O. Box 742 Phillip Bivens Dyersburg, Tennessee District Attorney General (Trial Only) John E. Vaughn Assistant District Attorney General P.O. Drawer E. Dyersburg, Tennessee 38025 First Paragraph: The appellant, Billy Aldridge, was convicted of aggravated assault, a class C felony, and sentenced to ten years in the Department of Corrections as a Range II multiple offender. His sentence is to be served consecutively to other sentences which he was serving at the time of this offense. He raises two issues on appeal: (a)the sufficiency of the convicting evidence; and (b) the trial courts failure to grant a trial based upon the appellants claims of juror bias. URL:http://www.tba.org/tba_files/TCCA/ALDRIDGE.MEM.WP6 STATE OF TENNESSEE, v. RONALD S. AUSTIN, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: LLOYD A. LEVITT CHARLES W. BURSON 312 Vine St. Attorney General & Reporter Chattanooga, TN 37403 (On Appeal) MICHAEL J. FAHEY, II Asst. Attorney General W. GERALD TIDWELL, JR. 450 James Robertson Pkwy. 600 Dome Bldg. Nashville, TN 37243-0493 Chattanooga, TN 37402 (At Plea/Sentencing Hearing) GARY D. GERBITZ District Attorney General DEE ANNE IRWIN -and- THOMAS J. EVANS Asst. District AG Hamilton County-Chattanooga Courts Bldg. Chattanooga, TN 37402 First Paragraph: The defendant was indicted for theft of property and forgery. He pled guilty to both counts. After a hearing, the court below sentenced the defendant as a Range II offender to the maximum of eight years for each offense, to be served concurrently. Approximately one week after the hearing, the defendant filed a pro se motion to withdraw his guilty pleas, which the lower court denied after an evidentiary hearing. The defendant now appeals as of right, claiming the trial court erred in denying his motion to withdraw his pleas, and that his sentence is excessive. After our review of the record, we affirm the judgment below. URL:http://www.tba.org/tba_files/TCCA/AUSTINRS.OPN.WP6 STATE OF TENNESSEE,v. JEFFREY LYNN CAMERON, Court:TCCA For The Appellant: For the Appellee: Ardena J. Garth Charles W. Burson and Donna Robinson Miller Attorney General & Reporter Office of Public Defender Suite 300 - 701 Cherry Street Lisa A. Yacuzzo Chattanooga, TN 37402 Assistant Attorney General 615/323-1220 General Civil Division First Paragraph: The defendant, Jeffery Lynn Cameron, entered guilty pleas to eleven counts of aggravated burglary, one count of burglary, and eleven underlying counts of theft as a Range I offender. This appeal is from the maximum consecutive sentences totaling 70 years ordered by the trial judge on the burglary counts. URL:http://www.tba.org/tba_files/TCCA/CAMERONJ.WPD.WP6 TONY V. CARRUTHERS, v. STATE OF TENNESSEE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: CRAIG V. MORTON, II CHARLES W. BURSON Attorney at Law Attorney General and Reporter 212 Adams Avenue Memphis, TN 38103 CLINTON J. MORGAN Attorney Generals Office 450 James Robertson Parkway Nashville, TN 37243 JOHN W. PIEROTTI District Attorney General REGINALD R. HENDERSON Assistant District Attorney 201 Poplar Avenue Third Floor Memphis, TN 38103 First Paragraph: The Appellant, Tony Von Carruthers, was convicted of aggravated assault in 1990. He was sentenced to ten years imprisonment. In September of 1992, Appellant petitioned for post-conviction relief in the Shelby County Criminal Court alleging that he received the ineffective assistance of counsel in violation of his rights under the Sixth Amendment to the United States Constitution. Following an evidentiary hearing, the trial court denied Appellants petition. On appeal, Appellant again asserts that his trial attorney inadequately prepared and presented the defense at trial and that the lower court erroneously concluded otherwise. URL:http://www.tba.org/tba_files/TCCA/CARRUT.OPN.WP6 STATE OF TENNESSEE, v. BILLY CARTER, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Billy E. Carter Charles W. Burson Pro Se Attorney General and Reporter MCRCS/128549 450 James Robertson Parkway P.O. Box 2000 Nashville, Tennessee 37243-0493 Wartburg, Tennessee Michelle L. Lehmann Assistant Atty. Gen. & Reporter 450 James Robertson Parkway Nashville, Tennessee 37243-0493 Greeley Wells District AG Edward E. Wilson Assistant District AG P.O. Box 526 Blountville, Tennessee 37617 First Paragraph: The appellant, Billy Carter, appeals from the judgment of the Sullivan County Criminal Court revoking his probation. He argues that he was denied due process of law, that the trial court erred in allowing the testimony of a social worker, that the evidence was insufficient to revoke his probation, and that he was denied the effective assistance of counsel. URL:http://www.tba.org/tba_files/TCCA/CARTERBI.OPN.WP6 STATE OF TENNESSEE, v. FREDDIE LEON CHISM, Court:TCCA For Appellant For Appellee Tom W. Crider Charles W. Burson Dist. Public Defender Attorney General and Reporter J. Diane Stoots Michael J. Fahey, II Asst. Public Defender Asst. Attorney General Clayburn L. Peeples, Jr. District Attorney Twenty-Eighth Judicial Dist. Garry Brown Asst. District Attorney General First Paragraph: The defendant, Freddie Leon Chism, pled guilty to possession of cocaine with intent to deliver or sell and possession of drug paraphernalia; he reserved the right to appeal as a certified question of law the denial of his motion to suppress. See Tenn. R. Crim. P. 11(e) and 37(b)(2). The trial court imposed Range I concurrent sentences of three years for the possession with intent to deliver or sell cocaine and eleven months and twenty-nine days for the possession of drug paraphernalia. URL:http://www.tba.org/tba_files/TCCA/CHISM.OPN.WP6 JOHN DERRICK COLEMAN, v. STATE OF TENNESSEE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: John Derrick Coleman, Pro Se Charles W. Burson P.O. Box 1050 WTHSF Attorney General & Reporter Henning, TN 38041 450 James Robertson Parkway Nashville, TN 37243-0495 William David Bridgers Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 First Paragraph: The appellant, John Derrick Coleman, appeals as of right from a judgment of the trial court summarily dismissing his action for post-conviction relief. The trial court did not give a reason for the sua sponte summary dismissal. The appellant contends that he was entitled to the appointment of counsel, the right to amend his petition, and an evidentiary hearing to present evidence to support the grounds alleged in his petition. The State of Tennessee admits in its brief that the trial court committed error in summarily dismissing the appellant's post-conviction action sua sponte. URL:http://www.tba.org/tba_files/TCCA/COLEMANJ.OPN.WP6 RICKEY LEWIS HILLIARD, v. STATE OF TENNESSEE, Court:TCCA ORDER First Paragraph: This matter is before the Court upon the states motion, pursuant to Rule 20 of the Rules of the Court of Criminal Appeals, to affirm the judgment of the trial court by order rather than by formal opinion. This case represents an appeal from the trial courts denial of the petitioners petition for writ of habeas corpus. The record in this matter was filed with the Court on November 22, 1995, and the petitioner filed his brief on January 19, 1996. URL:http://www.tba.org/tba_files/TCCA/HILLIARD.ORD.WP6 STATE OF TENNESSEE, v. ALEX HUGH MORROW, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: PAMELA J. DREWERY CHARLES W. BURSON 227 West Baltimore Attorney General & Reporter Jackson, TN 38301 SARAH M. BRANCH Counsel for the State 450 James Robertson Pkwy. Nashville, TN 37243-0493 JERRY WOODALL District Attorney General DONALD P. ALLEN Asst. District Attorney General P.O. Box 2825 Jackson, TN 38302 First Paragraph: The defendant was indicted for aggravated robbery. He pled guilty to robbery with no agreement on his sentence. After a hearing, the trial court sentenced the defendant as a Range I offender to five years in the penitentiary. The defendant now appeals claiming that his sentence is excessive and that he should have been given alternative sentencing. We agree with the trial court that alternative sentencing is not appropriate for this defendant, and that the sentence of five years incarceration is proper. URL:http://www.tba.org/tba_files/TCCA/MORROWA.OPN.WP6 MARK W. RAWLINGS, v. STATE OF TENNESSEE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: PAULA SKAHAN CHARLES W. BURSON 140 North Third St. Attorney General & Reporter Memphis, TN 38103 RUTH A. THOMPSON Counsel for the State 450 James Robertson Pkwy. Nashville, TN 37243-0493 JOHN W. PIEROTTI District Attorney General JENNIFER S. NICHOLS Asst. District Attorney General 201 Poplar Ave., Third Fl. Memphis, TN 38103 First Paragraph: The petitioner Rawlings was indicted for, and pled guilty to, three counts of especially aggravated robbery. After a hearing, he was sentenced as a Range I standard offender to eighteen years for each offense, consecutive, for an effective sentence of fifty-four years. URL:http://www.tba.org/tba_files/TCCA/RAWLINGS.OPN.WP6 STATE OF TENNESSEE, v. PHILLIP S. ROBERTS, and CONCURRING AND DISSENTING OPINION Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: GALE K. FLANARY CHARLES W. BURSON Asst. Public Defender Attorney General & Reporter P. O. Box 839 Blountville, TN 37617 CLINTON J. MORGAN Asst. Attorney General 450 James Robertson Pkwy. Nashville, TN 37243-0493 CARL K. KIRPATRICK District Attorney General PHYLLIS MILLER Asst. District Attorney General P. O. Box 526 Blountville, TN 37617 First Paragraph: At his jury trial, the defendant was convicted of four counts of burglary, three counts of attempted theft of property valued at more than one thousand dollars but less than ten thousand dollars, and one count of possession of burglarious instruments. He was sentenced to imprisonment for four years for each of the attempted theft offenses, eleven months and twenty-nine days for the possession of burglarious instruments offense, and four years for three of the four burglary offenses. URL:http://www.tba.org/tba_files/TCCA/ROBERTSP.OPN.WP6 URL:http://www.tba.org/tba_files/TCCA/ROBERTSP.DIS.WP6 STATE OF TENNESSEE, v. THOMAS SINCLAIR, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: GEORGE MORTON GOOGE CHARLES W. BURSON District Public Defender Attorney General and Reporter 26th Judicial District 227 W. Baltimore Street ELLEN H. POLLACK Jackson, TN 38301 Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 JERRY WOODALL District Attorney General DONALD ALLEN Assistant District AG P.O. Box 2825 Jackson, TN 38302 First Paragraph: The Defendant, Thomas Sinclair, appeals as of right from a jury verdict convicting him of second degree murder and possession of a weapon with the intent to use it in the commission of a felony. For these crimes, the Defendant was sentenced as a Range I standard offender to serve concurrent sentences of twenty five years and two years in the Tennessee Department of Correction. The Defendant appeals the verdict and his sentence. We affirm the judgment of the trial court in part and modify the sentence. URL:http://www.tba.org/tba_files/TCCA/SINCLAIR.OPN.WP6 PHILLIP R. WOODS,v. STATE OF TENNESSEE, Court:TCCA For Appellant For Appellee James D. Gass Charles W. Burson Attorney Attorney General & Reporter 203 South Shannon Suite 100 Michelle L. Lehmann Jackson, TN 38301 Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 James W. Thompson Asst. District Attorney General 225 Martin Luther King, Jr. Dr. Jackson, TN 38301 First Paragraph: The petitioner, Phillip R. Woods, appeals the trial court's denial of post-conviction relief. The petitioner presents two issues for our review: (1) whether the petitioner was denied the effective assistance of counsel due to the illegality of the sentence; and (2) whether the petitioner knowingly and voluntarily pled guilty. URL:http://www.tba.org/tba_files/TCCA/WOODSPR.OPN.WP6
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