Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts.
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- 00-New Opinons From TSC-Rules
- 03-New Opinons From TSC-Workers Comp Panel
- 06-New Opinons From TCA
- 07-New Opinons From TCCA
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GENE V. AABY, v. JUDY E. AABY STRANGE Court:TSC ATTORNEYS: N/A First Paragraph: Order on Petition To Rehear The father, Gene V. Aaby, has filed a petition to rehear in this case, raising several issues. Of those issues, only the one pertaining to custody merits further comment by this Court. Judge: DROWOTA, J. URL:http://www.tba.org/tba_files/TSC/AABY.RHR.WP6 STATE OF TENNESSEE, v. CHARLES WILLIAM BARTRAM, Court:TSC For Appellant: For Appellee: Charles Burson Michael R. Jones Attorney General & Reporter Public Defender Clarksville, Tennessee Michael E. Moore Deputy Attorney General Nashville, Tennessee Dent Morris Assistant District Attorney Springfield, Tennessee First Paragraph: We granted this appeal to re-examine this Court's adoption of the so- called "angry wife" exception to the rule that a warrantless search and seizure is presumed unreasonable unless there is a valid consent to the search. Fifty years ago, in Kelley v. State, this Court viewed the marital relationship as an agency relationship between the husband and wife and, therefore, reasoned that the consent of the wife would bind the husband unless the consenting wife's actions were hostile and adverse to her husband's interest. Judge: ANDERSON, J. URL:http://www.tba.org/tba_files/TSC/BARTRAM.OPN.WP6 STATE OF TENNESSEE v. WILLIAM ALVIN CLEMENTS, JR. Court:TSC For Appellee: For Appellant: Charles W. Burson Dale M. Quillen Attorney General & Reporter Michael J. Flanagan Nashville, Tennessee Kathy Morante Deputy Attorney General Nashville, Tennessee Joseph D. Baugh District Attorney General Ronald L. Davis Assistant District Attorney Franklin, Tennessee First Paragraph: This case presents the following issue for our determination: whether a cash bond, deposited by the parents of a criminal defendant to ensure the defendants appearance in court, may be attached to cover fines and costs incurred by the defendant in connection with the prosecution. We hold that the bond may not be so attached, and therefore reverse the judgment of the Court of Criminal Appeals. Judge: DROWOTA, J. URL:http://www.tba.org/tba_files/TSC/CLEMENTS.OPN.WP6 RESOLUTION TRUST CORPORATION, v. ADOLPH J. BLOCK, et al., Court:TSC For the Plaintiff-Respondent: For the Defendants-Petitioners: Ronald W. Woods Bernard E. Bernstein N. R. Coleman, Jr. J. Thomas Jones Milligan & Coleman Bernstein, Stair & McAdams Greeneville, TN Knoxville, TN Winthrop A. Short, Jr. Joseph F. Rosenberg David J. Pierce Dale, Jackson & Rosenberg Megan E. Burns Nashville, TN Jonathan L. Thorton Kaufman & Canoles, P.C. David W. Blankenship Kingsport, TN John P. Parker F.D.I.C. Thomas A. Peters Washington, D.C. Kingsport, TN First Paragraph: The United States District Court for the Eastern District of Tennessee has certified to this Court, pursuant to Rule 23, Tennessee Supreme Court Rules, the following question: Whether under Tennessee law the directors and officers of a Tennessee corporation would be jointly and severally liable for the collective actions of the board or proportionately liable under the doctrine of comparative fault. Judge: WHITE, J. URL:http://www.tba.org/tba_files/TSC/RESOLTRS.OPN.WP6 JESSE S. TIDWELL, v.STATE OF TENNESSEE, Court:TSC For Appellant: For Appellee: Jesse Spence Tidwell Charles W. Burson Pro se Attorney General and Reporter Michael E. Moore Solicitor General Gordon W. Smith Associate Solicitor General Nashville, TN Daniel W. Cook Assistant District Attorney Charlotte, TN First Paragraph: The appellant, Jesse S. Tidwell, appeals the trial courts denial of his petition for post-conviction relief. At issue is whether his trial counsel's failure to require the prosecutor to elect the particular offenses upon which convictions would be sought deprived him of his constitutional right to the effective assistance of counsel. We have carefully examined the trial and post-conviction transcripts and have thoroughly considered the contentions of both parties. For the reasons discussed below, we find that counsel's performance failed to satisfy the criteria established in Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975) and in Strickland v. Washington, 466 U.S. 558 (1984). The appellant has made the requisite showing of prejudice for all but the incidents on which the testimony at the original trial was detailed and specific. Judge: BIRCH, J. URL:http://www.tba.org/tba_files/TSC/TIDWELLJ.OPN.WP6 DEBBIE G. FARROW, v. PHILLIPS CONSUMER ELECTRONICS COMPANY, Court: TSC (Workers Comp Panel) James L. Milligan, Jr. Arthur G. Seymour, Jr. James L. Milligan, Jr. & Asso. Robert L. Kahn Knoxville, Tennessee Knoxville, Tennessee First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employee or claimant, Farrow, contends the evidence preponderates against the trial court's finding that her injury did not arise out of her employment. The panel concludes that the judgment should be reversed and the case remanded for an award of benefits. Judge: Loser, Judge URL:http://www.tba.org/tba_files/TSC_WCP/FARRVPHI.OPN.WP6 ANNA LUE McKAMEY,v. RED KAP INDUSTRIES, Court: TSC (Workers Comp Panel) For the Appellant: For the Appellee: John D. Agee Robert R. Ramsey Cooley, Cooley & Agee Upchurch, Colvard, York & Ramsey 155 E. Race St. P.O. Box 3549 P.O. Box 730 Crossville, TN 38557 Kingston, TN 37763 First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of Judge: INMAN, Senior Judge URL:http://www.tba.org/tba_files/TSC_WCP/MCKAMEY.OPN.WP6 BRENDA GAIL WARD, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Court: TSC (Workers Comp Panel) For Appellant: For Appellee: Robert R. Davies David H. Dunaway Fansler & Williams David H. Dunaway & Associates Knoxville, Tennessee LaFollette, Tennessee First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer's insurer contends the evidence preponderates against the award of permanent disability benefits. The panel concludes the judgment should be reversed and the cased dismissed. The only issue litigated at trial was the extent of the claimant's permanent disability, if any. Judge: Loser, Judge URL:http://www.tba.org/tba_files/TSC_WCP/WARDVUSF.OPN.WP6 JAMES M. BLANKENSHIP, v. DONAL CAMPBELL, Commissioner,Department of Correction, et al, Court:TCA JAMES M. BLANKENSHIP, Pro Se S.T.S.R.C.F. Route #4, P. O. Box 600 Pikeville, Tennessee 37367 CHARLES W. BURSON Attorney General and Reporter PATRICIA C. KUSSMANN Assistant Attorney General Civil Rights and Claims Division 404 James Robertson Parkway, Suite 2000 Nashville, Tennessee 37243 ATTORNEYS FOR RESPONDENTS/APPELLEES First Paragraph: This is an appeal by petitioner, James M. Blankenship, from the judgment of the trial court dismissing his petition for declaratory judgment filed pursuant to Tennessee Code Annotated section 4-5-224. Judge: SAMUEL L. LEWIS, JUDGE URL:http://www.tba.org/tba_files/TCA/BLANKNSH.OPN.WP6 MARGARET DANMOLE, v. CHARLES L. WRIGHT, Court:TCA NEWTON S. HOLIDAY, III Petway, Blackshear & Cain 208 Third Avenue North Fifth Floor Nashville, Tennessee 37201 ATTORNEY FOR PLAINTIFF/APPELLEE ALAN M. SOWELL Gracey, Ruth, Howard, Tate & Sowell 150 Second Avenue North Suite 201 Nashville, Tennessee 37201 ATTORNEY FOR DEFENDANT/APPELLANT First Paragraph: Defendant, Charles L. Wright, has appealed from the judgment of the trial court entered on the jury's verdict for plaintiff, Margaret Danmole. The jury awarded plaintiff $17,000.00 for her injuries and damages sustained as the result of an automobile accident. Judge: SAMUEL L. LEWIS, JUDGE URL:http://www.tba.org/tba_files/TCA/DANMOLE.OPN.WP6 BILLY L. GORDON, v. MICHAEL C. GREENE, Commissioner Court:TCA GERALD C. RUSSELL 125 E. Broadway Avenue Maryville, Tennessee 37804 ATTORNEY FOR PETITIONER/APPELLANT CHARLES W. BURSON Attorney General and Reporter REBECCA LYFORD 450 James Robertson Parkway Nashville, Tennessee 37243-0494 ATTORNEYS FOR RESPONDENT/APPELLEE First Paragraph: Petitioner, Billy Gordon, appeals the chancellor's judgment dismissing his petition for review filed pursuant to the Uniform Administrative Procedures Act. Petitioner sought review of a forfeiture order entered by the Commissioner of the Tennessee Department of Safety ("Commissioner"). The order forfeited a 1989 Corvette automobile seized from Beate Kittel-Glass under the Tennessee Drug Control Act ("TDCA"). The pertinent facts are as follows. Judge: SAMUEL L. LEWIS, JUDGE URL:http://www.tba.org/tba_files/TCA/GORDONBI.OPN.WP6 DEBRA LAMBERTH, v. S? PLUMBING COMPANY, INC., FRED LAMBERTH, JR., ANITA WOODALL, and MICHAEL LAMBERTH, Court:TCA F. DULIN KELLY CLINTON L. KELLY 629 East Main Street Hendersonville, Tennessee 37075 Attorney for Plaintiff/Appellant JOE M. HAYNES DAVID M. POLLARD, JR. 140 North Main Street Goodlettsville, Tennessee 37070 Attorneys for Defendants/Appellees Fred Lamberth, Jr. and Anita Woodall PHYLLIS D. MORRISS 507 West Court Square Springfield, Tennessee 37172 Attorney and Guardian Ad Litem for Defendant/Appellee Michael Lamberth First Paragraph: The widow of the sole shareholder of an incorporated business sought a declaration that she owned the business as a surviving tenant by the entireties, or that she and her husband had been partners in the business. The Chancery Court of Sumner County denied any relief. We affirm. Judge: BEN H. CANTRELL, JUDGE URL:http://www.tba.org/tba_files/TCA/GORDONBI.OPN.WP6 MARVIN ANTHONY MATHEWS, v. RUSSELL X. THOMPSON, Court:TCA MARVIN ANTHONY MATHEWS, Pro Se Cold Creek Correctional Facility P. O. Box 1000 Henning, Tennessee 38041-1000 WINSTON S. EVANS PHILLIP B. JONES Evans, Jones & Reynolds 1810 First Union Tower 150 Fourth Avenue North Nashville, Tennessee 37219 ATTORNEYS FOR DEFENDANT/APPELLEE First Paragraph: This is an appeal by plaintiff/appellant, Marvin Anthony Mathews, from the chancery court's order finding that the statute of limitations had run in Plaintiff's legal malpractice action. Judge: SAMUEL L. LEWIS, JUDGE URL:http://www.tba.org/tba_files/TCA/MATHEWSM.OPN.WP6 MARY TERESA WILLS RYAN v. KEVIN B. RYAN, Court:TCA M. ALLEN EHMLING McClellan, Powers, Ehmling & Dix 116 Public Square Gallatin, Tennessee 37066 ATTORNEY FOR PLAINTIFF/APPELLEE NATHANIEL H. KOENIG 150 Second Avenue North Suite 300 Nashville, Tennessee 37201 ATTORNEY FOR DEFENDANT/APPELLANT First Paragraph: The defendant, Kevin B. Ryan ("Father"), has appealed from the trial court's order changing custody of the parties' minor child, Sabrina D. Ryan, from joint custody to the primary custody of the plaintiff, Mary Teresa Wills Ryan ("Mother"). Judge: SAMUEL L. LEWIS, JUDGE URL:http://www.tba.org/tba_files/TCA/RYANMTW.OPN.WP6 JOHNNY C. ABRAMS, v. STATE OF TENNESSEE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: David A. Doyle Charles W. Burson District Public Defender Attorney General & Reporter Clinton J. Morgan Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 Lawrence Ray Whitley District Attorney General 113 Main Street, West Gallatin, TN 37066-2803 Dee D. Gay Asst. District Attorney General 113 Main Street, West Gallatin, TN 37066-2803 First Paragraph: The appellant, Johnny C. Abrams, appeals as of right from a judgment of the trial court summarily dismissing his suit for post-conviction relief. The trial court found that the grounds raised by the appellant were barred by the statute of limitations. The appellant contends that the statute of limitations should not be a bar to his suit because (a) he has no knowledge of the law, (b) he is indigent and was unable to obtain counsel to represent him, and (c) he did not know that his rights had been seriously violated. The judgment of the trial court is affirmed. Judge: Joe B. Jones, Presiding Judge URL:http://www.tba.org/tba_files/TCCA/ABRAMSJC.OPN.WP6 TROY BROADRICK, v. STATE OF TENNESSEE, Court:TCCA For the Appellant: For the Appellee: Steven F. Glaser Charles W. Burson Asst. Public Defender Attorney General and Reporter Mary Ann Queen Legal Assistant William David Bridgers Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 Lawrence Ray Whitley District Attorney General Dee D. Gay Asst. District Attorney General Cordell Hull Building Gallatin, TN 37066 First Paragraph: The appellant, Troy Broadrick, appeals the trial courts dismissal of his second petition for post-conviction relief. On appeal, the appellant essentially contends that both trial and appellate counsel were ineffective, thereby violating the appellants rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 9 of the Tennessee Constitution. Moreover, the appellant argues that he was denied a full and fair hearing of his case, as required by the Fifth and Fourteenth Amendments of the United States Constitution and Article I, section 8 of the Tennessee Constitution, by (1) counsels performance at trial and on direct appeal and (2) the trial court at his first post-conviction hearing. Judge: David G. Haynes URL:http://www.tba.org/tba_files/TCCA/BROADRIC.OPN.WP6 STATE OF TENNESSEE, v. ROBERT BUTLER, Court:TCCA FOR THE APPELLEE: FOR THE APPELLANT: Robert W. Ritchie Charles W. Burson Wade V. Davies Attorney General & Reporter Ritchie, Fels & Dillard, P.C. 606 W. Main Street, Suite 300 Darian B. Taylor P.O. Box 1126 Assistant Attorney General Knoxville, TN 37901-1126 Criminal Justice Division Randall E. Nichols District Attorney General Robert Jolley Asst. Dist. Attorney General First Paragraph: Nearly twenty years ago, the appellee was convicted of rape and sentenced to life imprisonment. In 1993, he was granted habeas corpus relief in federal court. In 1995, a Tennessee trial court dismissed the appellee's indictment. The state appeals and argues that the trial judge abused her discretion in dismissing the indictment. We find no abuse of discretion and affirm. Judge: PAUL G. SUMMERS, URL:http://www.tba.org/tba_files/TCCA/BUTLERR.OPN.WP6 STATE OF TENNESSEE, v. TIM FOX, Court:TCCA For the Appellant: For the Appellee: Susanna Laws Thomas Charles W. Burson Assistant Public Defender Attorney General and Reporter 102 Mims Avenue and Newport, TN 37821-3614 George Linebaugh Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 Al Schmutzer, Jr. District Attorney General Sevier County Courthouse Suite 301 Sevierville, TN 37862 First Paragraph: The appellant was convicted by a jury of attempted first degree murder. A timely Motion for New Trial was filed and overruled. Thereafter, this conviction was appealed as a matter of right. Rule 3(b), Tenn. R. App. P. This appeal advances two grounds as error by the trial court justifying a new trial. First, the appellant contends that the evidence adduced at trial is insufficient on the issue of premeditation and deliberation to support a conviction of attempted first degree murder. Second, the appellant contends that the trial judge improperly weighed the aggravating and mitigating factors in imposing a twenty year Range I Standard Offender sentence. Judge: J. S. Daniel Special Judge URL:http://www.tba.org/tba_files/TCCA/FOXTIM.OPN.WP6 THOMAS EUGENE GRAHAM,v. STATE OF TENNESSEE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: RANDALL L. RUSSELL CHARLES W. BURSON # 300, Flatiron Bdg Attorney General and Reporter 707 Georgia Avenue Chattanooga, TN 37402 MICHAEL J. FAHEY, II Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0495 GARY D. GERBITZ District Attorney General REBECCA STERN and BARRY A. STEELMAN Assistant District Attorney General Hamilton County-Chattanooga Courts Building Chattanooga, TN 37402 First Paragraph: The Petitioner, Thomas Eugene Graham, brings this appeal as of right 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 denied relief. We affirm the judgment of the trial court. Judge: DAVID H. WELLES, JUDGE URL:http://www.tba.org/tba_files/TCCA/GRAHAMTE.OPN.WP6 STATE OF TENNESSEE, v. WILLIAM LAYNE MILLER, Court:TCCA For Appellant: For Appellee: William M. Haywood Charles W. Burson Attorney Attorney General & Reporter 105 First Avenue So. Lewisburg, TN 37091 Ellen H. Pollack Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0485 Michael McCown District Attorney General Weakley E. Barnard Asst. District Attorney Marshall County Courthouse Lewisburg, TN 37091 First Paragraph: The defendant, William Layne Miller, was convicted of aggravated burglary. The trial court imposed a Range III sentence of twelve years. In this appeal of right, the defendant presents two issues: (1) whether the trial court properly admitted evidence of three prior felonies for impeachment purposes; and (2) whether the trial court properly classified the defendant as a Range III, persistent offender. Judge: GARY R. WADE, JUDGE URL:http://www.tba.org/tba_files/TCCA/MILLERWL.OPN.WP6 STATE OF TENNESSEE, v. ANNETTE WHITE, a/k/aANNETTE WATSON, a/k/a ANNETTE MORGAN, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: JOHN P. VALLIANT, JR. CHARLES W. BURSON - and - Attorney General & Reporter PAUL HENSLEY Sixth Floor, 2 Centre Sq EUGENE J. HONEA 625 Gay St. Asst. Attorney General Knoxville, TN 37902 450 James Robertson Pkwy. Nashville, TN 37243-0493 CHARLES HAWK District Attorney General D. ROGER DELP Asst. District Attorney General P.O. Box 703 Kingston, TN 37763 First Paragraph: The present case involves an appeal of a certified question of law after the entry of guilty pleas pursuant to Tenn. R. Crim. P. 37(b)(2)(i). We find that the defendants issue on appeal lacks merit, and we therefore affirm the judgment of the trial court. Judge: JOHN H. PEAY, Judge URL:http://www.tba.org/tba_files/TCCA/WHITEA.OPN.WP6
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