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TBALink Opinion-Flash
March 5, 1997 -- Volume #3 -- Number #027
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.
- This Issue IN THIS ORDER:
- 00-New Opinions From TSC
- 00-New Opinions From TSC-Rules
- 04-New Opinions From TSC-Workers Comp Panel
- 05-New Opinions From TCA
- 12-New Opinions From TCCA
- 00-New Opinions From TSC
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WILBUR E. CAGLE vs. MIKE UNDERWOOD BUILDERS, INC. and MIKE UNDERWOOD Court:TSC - Workers Comp Panel Attorneys: For Appellant: For Appellee: Wade M. Boswell James R. Lafevor William T. Magill Knoxville, Tennessee O'Connor, Petty, Child & Boswell Knoxville, Tennessee Judge: Loser First Paragraph: In this appeal, the employer, Underwood, contends the evidence preponderates against the trial court's findings that (1) the employee's injury was one arising out of and in the course of employment, (2) the employer had actual notice of the injury, and (3) the employee retains a forty percent permanent partial disability to the right leg from a torn meniscus. The panel has concluded the judgment should be AFFIRMED. URL:http://www.tba.org/tba_files/TSC_WCP/CAGLVMIK_OPN.WP6
GWENDOLYN CHESNEY
vs.
KNOXVILLE GLOVE CO. and CIGNA INSURANCE CO
Court:TSC - Workers Comp Panel
Attorneys:
For Appellant: For Appellees:
James L. Milligan, Jr. Rebecca B. Murray
Gary T. Dupler Kennerly, Montgomery & Finley
Milligan & Associates Knoxville, Tennessee
Judge: Loser
First Paragraph:
In this appeal, the employee contends the evidence preponderates
against the trial court's award of permanent partial disability
benefits based on twenty-five percent to the body as a whole and in
favor of a higher award. The panel has concluded the award should be
modified to provide for benefits based on fifty percent to the body as
a whole. AFFIRMED AS MODIFIED.
URL:http://www.tba.org/tba_files/TSC_WCP/CHESVKNO_OPN.WP6
CYNTHIA J. BOWERS LOGUE
vs.
LEAF, INC. and AETNA LIFE and CASUALTY INSURANCE COMPANY
Court:TSC - Workers Comp Panel
Attorneys:
FOR APPELLANT: FOR APPELLEE:
M. Scott Willhite William E. Friedman
80 Monroe Avenue, Suite 650 1205 100 N. Main Building
Memphis, Tennessee 38103 Memphis, Tennessee 38103
Judge: Tatum
First Paragraph:
The defendants/appellants Leaf, Inc. and its insurance carrier, Aetna,
present issue: (1) that the court erred in awarding the plaintiff
permanent disability of 80% to the right upper extremity; (2) that the
court erred in awarding permanent disability benefits in a lump sum.
REVERSED IN PART MODIFIED IN PART OTHERWISE AFFIRMED.
URL:http://www.tba.org/tba_files/TSC_WCP/logue_opn.WP6
DANNY E. WILSON
vs.
CALVIN BURGESS LUMBER COMPANY
Court:TSC - Workers Comp Panel
Attorneys:
For Appellant: For Appellee:
S. Roger York David J. Deming
Crossville, Tennessee Manier, Herod, Hollabaugh
& Smith
Judge: Loser
First Paragraph:
In this appeal, the employee, Wilson, contends the evidence
preponderates against the trial court's finding that his injury did
not arise out of the employment. This panel affirms the trial court.
AFFIRMED.
URL:http://www.tba.org/tba_files/TSC_WCP/WILSVCAL_OPN.WP6
STATE OF TENNESSEE ex rel.
ROBERT J. EARHART, et al.
vs.
CITY OF BRISTOL, TENNESSEE
Court:TCA
Attorneys:
David H. Hornick, Nashville, For the Appellants.
Jack W. Hyder, Bristol, For the Appellee.
Judge: INMAN
First Paragraph:
On January 11, 1995, the Bristol City Council enacted 24 ordinances
annexing various parcels of property abutting U.S. 11-E in Sullivan
County. Nineteen of these ordinances were challenged by an action quo
warranto as provided by T.C.A. S 6-51-102. The jury returned a verdict
that fourteen of these ordinances were reasonable and five were
unreasonable. A new trial was ordered as to nine (9) of the
ordinances, and a second jury found all nine annexations reasonable.
Thus, all annexations were found to be reasonable. AFFIRMED.
URL:http://www.tba.org/tba_files/TCA/BRISTOLC_OPN.WP6
PATRICIA BROADWELL
vs.
THOMAS MICHAEL BROADWELL
Court:TCA
Attorneys:
Andrew Berke, Chattanooga, For the Appellant.
Jacqueline E. Schulten, Chattanooga, For the Appellee.
Judge: INMAN
First Paragraph:
This is a domestic relations case. The issues are whether the
evidence preponderates against (1) an award of alimony in futuro to
the appellee, (2) the finding that an alleged loan to the parties was
intended as a gift, (3) an award of attorney's fees. AFFIRMED as
MODIFIED.
URL:http://www.tba.org/tba_files/TCA/BROADWLL_OPN.WP6
LYNN BERNICE CARRAHER
vs.
MICHAEL THOMAS CARRAHER
Court:TCA
Attorneys:
Andrew Berke and Ronald J. Berke, Chattanooga, For the Appellant.
Steven M. Jacoway, Chattanooga, For the Appellee.
Judge: INMAN
First Paragraph:
The plaintiff's employer had a generous profit-sharing plan to which
the plaintiff was not required to contribute. The trial judge
declined to treat this fund as marital property because the "plaintiff
didn't earn it, and the defendant didn't contribute to it." AFFIRMED.
URL:http://www.tba.org/tba_files/TCA/CARRAHER_OPN.WP6
NATRICE WILLIAMSON DOUGLAS, individually and as next of kin
of her son, JOHN CAYLON DOUGLAS
vs.
E & C CARROLL ENTERPRISES, INC., d/b/a/ E & C CONSTRUCTION,
X. S. SMITH, INC., and POPE'S PLANT FARM, INC
Court:TCA
Attorneys:
Thomas G. McCroskey and L. Lee Kull, Maryville, For the Appellant,
Pope's Plant Farm, Inc.
David T. Black, Maryville, For the Appellee Natrice Williamson
Douglas.
Francis A. Cain and Robert L. Kahn, Knoxville, for the
Defendant, X. S. Smith, Inc.
Joe Nicholson, Maryville, for the Defendant Below, E & C Carroll
Enterprises, Inc.
Judge: INMAN
First Paragraph:
This is an action for damages for the alleged wrongful death of the
plaintiff's decedent who was electrocuted while erecting a greenhouse
at Pope's Plant Farm in Blount County. AFFIRMED.
URL:http://www.tba.org/tba_files/TCA/DOUGL-N_OPN.WP6
EDNA C. WELCH
vs.
FRANK DEVINEY and AGNES DEVINEY
Court:TCA
Attorneys:
Jeffrey D. Boehm, Chattanooga, for Appellants
Brian M. House, Chattanooga, for Appellee
Judge: INMAN
First Paragraph:
This case was filed in the General Sessions Court to recover
possession of a house owned by the plaintiff and occupied by the
defendants. A default judgment was entered in the General Sessions
Court and the defendants timely perfected an appeal to the Circuit
Court, which ordered the defendants to vacate the property. AFFIRMED.
URL:http://www.tba.org/tba_files/TCA/WELCHE_OPN.WP6
STATE OF TENNESSEE
vs.
JAMES EDWARD ARMSTRONG
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
W. JEFFERY FAGAN CHARLES W. BURSON
Asst. District Public Defender Attorney General & Reporter
P.O. Box 663
Camden, Tennessee 38320 ELLEN H. POLLACK
Asst. Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243 0493
ROBERT G. RADFORD
District Attorney General
VICKI S. SNYDER
Asst. District Attorney General
P.O. Box 686
Huntingdon, Tennessee 38344
Judge: RILEY
First Paragraph:
Defendant Armstrong appeals as of right from a jury verdict of guilty
for the sale of a Schedule II controlled substance (cocaine).
Sentenced as a Range I standard offender, Armstrong received
thirty-seven (37) months in the Tennessee Department of Correction and
was fined $2,000. The sole issue for review is whether the evidence
is sufficient to sustain Armstrong's conviction. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/ARMSTRON_OP2.WP6
STATE OF TENNESSEE
vs.
JERRY HILBERT CARTER
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Douglas L. Payne Charles W. Burson
114 South Main Street Attorney General and Reporter
Greeneville, TN 37743
Robin L. Harris
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
C. Berkeley Bell, Jr.
District Attorney General
Eric D. Christiansen
Asst. District Attorney General
113 J. West Church
Greeneville, TN 37743
Judge: Hayes
First Paragraph:
The appellant, Jerry Hilbert Carter, was convicted by a Greene County
jury of robbery, a class C felony. Tenn. Code Ann. S 39-13-401(b)
(1991). The trial court sentenced the appellant as a range I,
standard offender to six years confinement in the Tennessee Department
of Correction. The appellant now challenges the sufficiency of the
evidence supporting his conviction, the imposition by the trial court
of the maximum sentence authorized by law, and the trial court's
denial of an alternative sentence. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/CARTERJH_OPN.WP6
ROBERT GLEN COE
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE;
ROBERT C. IRBY CHARLES W. BURSON
4345 Mallory Avenue East Attorney General and Reporter
Memphis, TN 38111
JOHN P. CAULEY
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
JOHN W. PIEROTTI
District Attorney General
JOHN CAMPBELL
Asst District Attorney General
201 Poplar Avenue, 3rd Floor
Memphis, TN 38103
Judge: RILEY
First Paragraph:
Appellant, Robert Glen Coe, appeals from the dismissal of his third
post conviction relief petition. He has been convicted of first
degree murder, aggravated rape, and aggravated kidnaping. He was
sentenced to death for first degree murder and received two sentences
of life imprisonment for the other charges. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/COERG_OPN.WP6
STATE OF TENNESSEE
vs.
LEON BARNETT COLLIER
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Ardena J. Garth Charles W. Burson
District Public Defender Attorney General and Reporter
Donna Robinson Miller Michael J. Fahey, II
Asst. District Public Defender Assistant Attorney General
William A. Dobson Criminal Justice Division
Asst. District Public Defender 450 James Robertson Parkway
Suite 300, 701 Cherry Street Nashville, TN 37243 0493
Chattanooga, TN 37402
Kenneth Rucker
Legal Assistant
William H. Cox III
District Attorney General
City/County Courts Building
Room 300
Chattanooga, TN 37402
Judge: Hayes
First Paragraph:
The appellant, Leon Barnett Collier, was convicted by a Hamilton
County jury of the first degree murder of Marketta Green and the
attempted first degree murder of Eric Young. Following these
convictions, the jury sentenced the appellant to life imprisonment
without the possibility of parole for the first degree murder of Ms.
Green. The trial court imposed a twenty year sentence for the
attempted first degree murder conviction and ordered this sentence to
run consecutively with the sentence of life without parole. On
appeal, the appellant raises three issues for our determination: (1)
whether the evidence was sufficient to support a conviction for first
degree murder and a sentence of life without the possibility of
parole; (2) whether the admission of prior bad acts of the appellant
was error; and (3) whether consecutive sentences were proper.
AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/COLLIERL_OPN.WP6
STATE OF TENNESSEE
vs.
RICK J. GOULTRIE
Court:TCCA
Attorneys:
For Appellant:
A. Wayne Carter
Assistant Public Defender
P.0. Box 1453
Cleveland, TN 37364-1453
For Appellee:
Charles W. Burson
Attorney General & Reporter
Hunt Brown
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Joe Rehyansky
Assistant District Attorney General
P.O. Box 1351
Cleveland, TN 37364-1351
Judge: WADE
First Paragraph:
After a jury trial, the defendant, Rick Goultrie, was convicted of
possession of marijuana and public intoxication. The trial court
imposed consecutive sentences of eleven months twenty-nine days for
the possession conviction and thirty days for the public intoxication
conviction. The defendant was required to serve seventy-five percent
of the sentences in the county jail. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/GOULTRIE_OPN.WP6
STATE OF TENNESSEE
vs.
MARK A. HAROLD
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Nat H. Thomas Charles W. Burson
Attorney at Law Attorney General & Reporter
317 Shelby Street 500 Charlotte Avenue
Kingsport, TN 37660 Nashville, TN 37243-0497
Timothy F. Behan
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
H. Greeley Wells, Jr.
District Attorney General
P.O. Box 526
Blountville, TN 37617 0526
Edward W. Wilson
Asst District Attorney General
P.O. Box 526
Blountville, TN 37617 0526
Judge: Jones
First Paragraph:
The appellant, Mark A. Harold, was convicted of possessing less than
.5 grams of cocaine with the intent to sell, a Class C felony, and
possessing drug paraphernalia, a Class A misdemeanor, by a jury of his
peers. The trial court, finding the appellant to be a standard
offender, imposed a Range I sentence consisting of a $100,000 fine and
confinement for three (3) years in the Department of Correction for
possessing cocaine with intent to sell; and the court imposed a
sentence consisting of a $2,500 fine and confinement for eleven months
and twenty-nine days in the Sullivan County Jail for possessing drug
paraphernalia. The sentences are to be served concurrently. One
issue is presented for review. The appellant contends the trial court
abused its discretion by refusing to grant him an alternative sentence
to incarceration. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/HAROLDMA_OPN.WP6
HOWARD CLIFTON KIRBY
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
David M. Eldridge Charles W. Burson
Attorney at Law Attorney General & Reporter
606 W Main Avenue
Knoxville, TN 37901 Elizabeth T. Ryan
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Randall E. Nichols
District Attorney General
Robert L. Jolley, Jr.
Asst. Dist. Attorney General
City-County Building
Knoxville, TN 37902
Judge: SUMMERS
First Paragraph:
In 1976 the appellant, Howard Clifton Kirby, pled guilty to nine
counts of armed robbery and burglary. In 1989 he pled guilty to a
single count of third degree burglary and to being a habitual
criminal. Based upon his prior convictions, he received a life
sentence. He subsequently filed a petition for post-conviction relief
challenging his 1976 guilty pleas and his 1989 conviction as a
habitual criminal. His petition contended that his 1976 trial counsel
had a conflict of interest that adversely affected his decision to
plead guilty. The conflict arose from his trial counsel's
representation of two of the appellant's co-defendants. The petition
was denied. This Court, however, reversed the decision and vacated
five of the nine pleas. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/KIRBYHC_OPN.WP6
STATE OF TENNESSEE
vs.
MARTY MILLER
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES M. CORN CHARLES W. BURSON
Public Defender Attorney General and Reporter
STEVE WARD EUGENE J. HONEA
Assistant Public Defender Assistant Attorney General
P.O. Box 647 450 James Robertson Parkway
Athens, TN 37303 Nashville, TN 37243-0493
JERRY N. ESTES
District Attorney General
P.O. Box 647
Athens, TN 37303
Judge: WELLES
First Paragraph:
This is an appeal as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure. The Defendant was convicted by a Monroe
County jury of felony escape. He was sentenced to serve two years in
the Department of Correction and ordered to pay court costs within six
months after his release from incarceration. The Defendant appeals
both his conviction and sentence and presents the following issues for
review: (1) That the trial court erred by failing to rule that the
probation warrant for which he was under arrest was issued beyond the
statute of limitations and therefore void or voidable; (2) that the
evidence was insufficient to prove the Defendant's guilt beyond a
reasonable doubt; and (3) that the sentence imposed by the trial court
was excessive. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/MARTMILL_OPN.WP6
DONALD WAYNE STROUTH
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Mark E. Olive Charles W. Burson
1900 Center Pointe Blvd. #80 Attorney General and Reporter
Tallahassee, FL 32308
Jennifer L. Smith
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
H. Greeley Wells, Jr.
District Attorney General
Edward E. Wilson
Assistant District Attorney
P.O. Box 526
Blountville, TN 37617
Judge: Barker
First Paragraph:
The appellant, Donald Wayne Strouth, appeals as of right the denial of
his second post-conviction petition by the Circuit Court of Sullivan
County. Appellant filed a lengthy amended petition in the trial
court; however, appellant raises only five issues on appeal. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/STROUTH_OPN.WP6
STATE OF TENNESSEE
vs.
JAMES RANDALL TUBBS
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES N. GRIFFITH CHARLES W. BURSON
415 West Main Street Attorney General and Reporter
P. O. Box 456
Waverly, TN 37185 ELIZABETH T. RYAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0686
G. ROBERT RADFORD
District Attorney General
111 Church St., P. O. Box 686
Huntingdon, TN 38344-0686
Judge: RILEY
First Paragraph:
The appellant, James Randall Tubbs, appeals his felony conviction of
vandalism over $1,000. The sole issue is whether the jury verdict was
a conviction of vandalism under $500 or vandalism over $1,000.
AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/TUBBJAME_OPN.WP6
STATE OF TENNESSEE
vs.
MICHELLE WESTFIELD
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Richard A. Fisher Charles W. Burson
Attorney Attorney General & Reporter
Logan, Thompson, Miller, Bilbo,
Thompson & Fisher, P.C. Timothy F. Behan
Thirty-Second Street Assistant Attorney General
P.O. Box 191 450 James Robertson Parkway
Cleveland, TN 37364-0191 Nashville, TN 37243-0493
Rebble Johnson
Asst District Attorney General
Tenth Judicial District
P.O. Box 1351
Cleveland, TN 37364-1351
Judge: WADE
First Paragraph:
The defendant, Michelle Westfield, was convicted of theft over
$10,000.00, a Class C felony. Tenn. Code Ann. S 34-14-103, -105. The
trial court imposed a three-year sentence and suspended all but thirty
days, which were to be served in the county jail. Probation
thereafter is to extend for a period of four years and eleven months.
The defendant was ordered to pay $13,374.50 in restitution. In this
appeal of right, the defendant claims that the trial court erred by
imposing any of the sentence to be served in jail. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/WESTFIEL_OPN.WP6
STATE OF TENNESSEE
vs.
BRYAN MATTHEW WILLIS
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
GUY T. WILKINSON CHARLES W. BURSON
District Public Defender Attorney General and Reporter
W. JEFFERY FAGAN M. ALLISON THOMPSON
Asst District Public Defender Assistant Attorney General
P.O. Box 663 450 James Robertson Parkway
Camden, Tennessee 38320 Nashville, Tennessee 37243 0493
G. ROBERT RADFORD
District Attorney General
VICKI S. SNYDER
Asst District Attorney General
P.O. Box 686
Huntingdon, TN 38344-0686
Judge: RILEY
First Paragraph:
Bryan Matthew Willis appeals his convictions in the Circuit Court of
Henry County. He was convicted by a jury of three (3) counts of
aggravated burglary and three (3) counts of theft of property. On
appeal, he argues that the evidence was insufficient for the
convictions based on the uncorroborated testimony of an accomplice.
AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/WILLIS_OPN.WP6
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© Copyright 1998 Tennessee Bar Association - This Issue IN THIS ORDER: