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TBALink Opinion-Flash
May 12, 1997 -- Volume #3 -- Number #051
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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George Dean
TBALink Chief Editor
N RE: The Adoption of BRANDON KAIN DICUS SCOTT STEEL and DARLA STEEL vs. MARY LOU DICUS Court:TCA Attorneys: BEN BOSTON CHRISTOPHER V. SOCKWELL Boston, Bates, Holt & Sockwell 235 Waterloo Street P. O. Box 357 Lawrenceburg, Tennessee 38464 ATTORNEYS FOR PLAINTIFFS/APPELLEES J. DOUGLAS DICUS P. O. Box 1119 210B South Main Street Waynesboro, Tennessee 38485 ATTORNEY FOR DEFENDANT/APPELLANT Judge: LEWIS First Paragraph: This is an appeal by defendant, Mary Lou Dicus, from the decision of the chancery court to set aside the court's order of 18 October 1993 which amended the court's order of adoption filed on 24 August 1993. AFFIRMED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/DICUS_OPN.WP6
LARRY R. FOSTER and
LINDA H. JOHNSTON, Trustees
of the HENRY ROGERS FOSTER
TRUST
vs.
JAY W. SHIM
Court:TCA
Attorneys:
For the Plaintiffs/Appellees: For the Defendant/Appellant:
Philip D. Irwin James C. Hofstetter
Neal & Harwell Nashville, Tennessee
Nashville, Tennessee
Judge: KOCH
First Paragraph:
This appeal involves the lease of a grocery store in Nashville.
Following the landlord's death, the trust succeeding to the landlord's
interest filed an unlawful detainer action in the Davidson County
General Sessions Court seeking to recover possession of the property.
The tenant appealed the adverse judgment to the Circuit Court for
Davidson County. The circuit court granted the trust's motion for
summary judgment after finding that the tenant had breached the lease
by failing to make timely and sufficient lease payments. We have
determined that the summary judgment must be reversed because the
trust has failed to demonstrate that it was entitled to a judgment as
a matter of law. REVERSED AND REMANDED.
URL:http://www.tba.org/tba_files/TCA/FOSTERLR_OPN.WP6
GEORGE AVERY LAND and wife,
STELLA FAYE LAND
VS.
BUSTER CRUM and wife,
PATRICIA L. CRUM
Court:TCA
Attorneys:
L. Thomas Austin
P. O. box 666
Dunlap, Tennessee 37327
ATTORNEY FOR PLAINTIFFS/APPELLEES
Howard L. Upchurch
P. O., Box 381
Pikeville, Tennessee 37367
ATTORNEY FOR DEFENDANTS/APPELLANTS
Judge: TODD
First Paragraph:
The defendants, Buster Crum and wife Patricia L. Crum, have appealed
from the judgment of the Trial Court resolving a boundary dispute
favorably to the plaintiffs, George Avery Land and wife, Stella Faye
Land. AFFIRMED AND REMANDED.
URL:http://www.tba.org/tba_files/TCA/LANDGA_OPN.WP6
MEMPHIS PUBLISHING COMPANY
vs.
TENNESSEE PETROLEUM
UNDERGROUND STORAGE TANK
BOARD and J. W. LUNA, AS
COMMISSIONER OF TENNESSEE
DEPARTMENT OF ENVIRONMENT
AND CONSERVATION
Court:TCA
Attorneys:
John Knox Walkup, Attorney General and Reporter
Barry Turner, Deputy Attorney General
Attorneys for Respondents/Appellants.
S. Russell Headrick,
Stephen P. Hale,
Lucian T. Pera,
Kathy Laughter Laizure,
ARMSTRONG, ALLEN, PREWITT, GENTRY, JOHNSTON & HOLMES,
Memphis, Tennessee
Attorneys for Petitioner/Appellee.
Judge: FARMER
First Paragraph:
This case is on appeal for the second time. The Tennessee Petroleum
Underground Storage Tank Board and J. W. Luna, as Commissioner of the
Tennessee Department of Environment and Conservation (hereinafter
"Board" or "Appellants"), have appealed from the judgment of the trial
court declaring the appellee, Memphis Publishing Company (MPC),
eligible for reimbursement from the Tennessee Petroleum Underground
Storage Tank Fund (Fund) for remediation expenses incurred as a result
of a release from its underground storage tank in August 1987. The
trial court's decision came after remand from the Middle Section of
this Court in Memphis Publishing Company v. Tennessee Petroleum
Underground Storage Tank Board, No. 01A01-9305-CH-00202, 1993 WL
476292 (Tenn. App. Nov. 19, 1993), perm. app. denied, c.r.o. There,
the court confronted the issue of whether MPC had a right to Fund
reimbursement under the Tennessee Petroleum Underground Storage Tank
Act (Act), T.C.A. S 68-215-101 et seq., as originally enacted. It
was argued that MPC had no right to reimbursement because its release
occurred prior to the effective date of the Act, July 1, 1988. This
Court, speaking through Judge Lewis, held that the Act, as originally
enacted, "was intended to cover, from a Fund reimbursement
perspective, all releases regardless of date." Upon remand, the trial
court held the court of appeal's decision "law of the case" and ruled
as hereinabove set forth. It is urged on appeal that the decision
rendered in Memphis Publishing is not the "law of the case" regarding
MPC's Fund eligibility and that the trial court erred in so holding.
For reasons hereinafter stated, we affirm. AFFIRMED AND REMANDED.
URL:http://www.tba.org/tba_files/TCA/MEMPHISP_OPN.WP6
LINDA GAIL RAY
vs.
BILLY GENE RAY
Court:TCA
Attorneys:
Paul Bates; Boston, Bates & Holt
of Lawrenceburg, For Appellee
Robert D. Massey of Pulaski,
For Appellant
Judge: CRAWFORD
First Paragraph:
This is a divorce case. Defendant, Billy Gene Ray (Husband), appeals
from the judgment of the trial court dividing the marital property and
awarding alimony to the plaintiff, Linda Gail Ray (Wife). AFFIRMED.
URL:http://www.tba.org/tba_files/TCA/RAY_OPN.WP6
FLORA SCRUGGS
vs.
GORDON BELL
Court:TCA
Attorneys:
Frank M. Fly of Murfreesboro
For Appellant
David W. Kious and Robert O. Bragdon of Murfreesboro
For Appellee
Judge: CRAWFORD
First Paragraph:
This case involves a dispute concerning an easement for ingress and
egress. Respondents-Appellants, Gordon Bell and Sarah T. Bell, appeal
from the order of the trial court granting an easement by estoppel to
Petitioner-Appellee, Flora Pope Scruggs, without compensation to the
Bells. REVERSED AND REMANDED.
URL:http://www.tba.org/tba_files/TCA/SCRUGGS_OPN.WP6
STATE OF TENNESSEE
vs.
RANDY ANDERSON
WITH DISSENTING OPINION
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Shara Ann Flacy John Knox Walkup
District Public Defender Attorney General of Tennessee
and and
William C. Bright Charlotte H. Rappuhn
Assistant Public Defender Asst Attorney General of Tennessee
209 West Madison Street 450 James Robertson Parkway
P.O. Box 1208 Nashville, TN 37243-0493
Pulaski, TN 38478-1208
T. Michael Bottoms
John R. Wingo District Attorney General
Assistant Public Defender P.O. Box 459
209 West Madison Street Lawrenceburg, TN 38464-0459
P.O. Box 1208 and
Pulaski, TN 38478-1208 Samuel D. Kennedy, Jr.
Asst District Attorney General
10 Public Square
P.O. Box 1619
Columbia, TN 38402-1619
Judge: Tipton
First Paragraph:
The defendant, Randy Anderson, appeals from his convictions in the
Circuit Court of Maury County for aggravated burglary, a Class C
felony, and theft of property valued at over one thousand dollars, a
Class D felony. He received sentences of five years and two years,
respectively, as a Range I, standard offender to be served
concurrently in the custody of the Department of Correction. REVERSED
AND REMANDED.
URL:http://www.tba.org/tba_files/TCCA/ANDERSON_OP2.WP6
URL:http://www.tba.org/tba_files/TCCA/ANDERSON_DIS.WP6
WILLIAM ROBERT CANTRELL
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
TUSCA R.S. ALEXIS JOHN KNOX WALKUP
915 Jefferson Street Attorney General and Reporter
Nashville, TN 37208
DARYL J. BRAND
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
WILLIAM C. WHITESELL, JR.
District Attorney General
Rutherford Co. Judicial Building
Suite 303
Murfreesboro, TN 37130
Judge: RILEY
First Paragraph:
The appellant, William Robert Cantrell, appeals the dismissal of his
petition for post-conviction relief filed in the Circuit Court of
Rutherford County. Cantrell is presently serving an effective
sentence of fifteen (15) years following his guilty pleas in 1990 to
the offenses of aggravated kidnapping, aggravated rape and robbery
with a deadly weapon. In his post-conviction petition he seeks to set
aside the guilty pleas based upon ineffective assistance of counsel.
After a hearing, the trial court dismissed the petition. We affirm
the judgment of the trial court. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/CANTRELL_OPN.WP6
STATE OF TENNESSEE
vs.
FABIEN ELDRIDGE
WITH CONCURRING OPINION
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
FRANK BUCK CHARLES W. BURSON
124 West Main Street Attorney General & Reporter
Smithville, TN 37166
ALAN M. DERSHOWITZ KATHY MORANTE
1575 Massachusetts Avenue Assistant Attorney General
Cambridge, MA 02138 450 James Robertson Parkway
Nashville, TN 37243-0493
WILLIAM EDWARD GIBSON
District Attorney General
BEN FANN
Asst District Attorney General
145 South Jefferson Avenue
Cookeville, TN 38501
Judge: RILEY
First Paragraph:
This is a direct appeal from a jury verdict of guilty of attempted
second degree murder. The defendant was sentenced as a standard
offender to nine and one-half (9 http://www.tba.org/tba_files/TCCA/ELDRIDGE_WRP.WP6
URL:http://www.tba.org/tba_files/TCCA/ELDRIDGE_CON.WP6
STATE OF TENNESSEE
vs.
JAMES O. GAMBRELL, SR
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Gary Vandever John Knox Walkup
108 North Greenwood Street Attorney General and Reporter
P.O. Box 642
Lebanon, TN 37088 Daryl J. Brand
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Tom P. Thompson, Jr.
District Attorney General
Robert N. Hibbett
Assistant District Attorney
111 Cherry Street
Lebanon, TN 37087
Judge: Barker
First Paragraph:
This is an appeal of a certified question of law pursuant to Rule
37(b)(2)(i) of the Tennessee Rules of Criminal Procedure. In
accordance with a plea agreement, appellant pled guilty to two counts
of incest and one count of rape. He received four (4) year sentences
each on the incest charges and a ten (10) year sentence on the rape
offense. All sentences were ordered to run concurrently for an
effective sentence of ten (10) years in the Department of Correction.
APPEAL DISMISSED.
URL:http://www.tba.org/tba_files/TCCA/GAMBRELL_OPN.WP6
STATE OF TENNESSEE
vs.
JOHN W. GILLIAM
Court:TCCA
Attorneys:
FOR THE APPELLANT FOR THE APPELLEE
John H. Henderson John Knox Walkup
District Public Defender Attorney General and Reporter
P.O. Box 68 450 James Robertson Parkway
Franklin, Tennessee 37065 Nashville, Tennessee 37243-0493
C. Diane Crosier Karen M. Yacuzzo
Assistant Public Defender Assistant Attorney General
P.O. Box 68 450 James Robertson Parkway
Franklin, Tennessee 37065 Nashville, Tennessee 37243-0493
Joseph D. Baugh, Jr.
District Attorney General
P.O. Box 937
Franklin, Tennessee 37065
Mark L. Puryear
Asst District Attorney General
P.O. Box 937
Franklin, Tennessee 37065
Judge: Barker
First Paragraph:
The Appellant, John W. Gilliam, appeals as of right his conviction and
consecutive sentence for one count of the unlawful carrying or
possession of a weapon. He argues that the evidence introduced at
trial was insufficient to sustain his conviction and that the trial
court erred when it ordered his sentence for that crime consecutive to
another sentence for rape. We have reviewed the record on appeal and
find no merit to the Appellant's contentions and, therefore, affirm
the trial court's judgment. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/GILLIAMJ_OPN.WP6
STATE OF TENNESSEE
vs.
CHARLES FRANK GRIFFIN
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Laura Rule Hendricks John Knox Walkup
Eldridge, Irvine & Hendricks Attorney General & Reporter
606 W Main Street, Suite 350
P.O. Box 84 Timothy F. Behan
Knoxville, TN 37901-0084 Assistant Attorney General
450 James Robertson Parkway
Ardena J. Garth Nashville, TN 37243-0493
District Public Defender
William H. Cox III
Karla G. Gothard District Attorney General
Executive Assistant
District Public Defender Rebecca J. Stern
701 Cherry Street, Suite 300 Asst District Attorney General
Chattanooga, TN 37402-1910 600 Market Street, Suite 310
Chattanooga, TN 37402
Judge: SUMMERS
First Paragraph:
The appellant, Charles Frank Griffin, was indicted on two counts of
aggravated robbery. He was convicted by a jury on both counts. He
received a thirty-year sentence on each count. The sentences were
ordered to run consecutively. He appeals challenging the sufficiency
of the evidence and the consecutive nature of his sentences. Upon
review, we affirm. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/GRIFFINC_OPN.WP6
BRIAN M. HERMAN
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
ARDENA J. GARTH JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
11th Judicial District
ELIZABETH T. RYAN
DONNA ROBINSON MILLER (appeal) Assistant Attorney General
Asst District Public Defender Criminal Justice Division
450 James Robertson Parkway
HIRAM G. HILL (hearing) Nashville, TN 37243-0493
Asst District Public Defender
701 Cherry St., Suite 300 WILLIAM COX
Chattanooga, TN 37402 District Attorney General
C. LELAND DAVIS
Asst. District Attorney General
Courts Building, Room 310
Chattanooga, TN 37402
Judge: WITT
First Paragraph:
The appellant, Brian M. Herman, appeals the Hamilton County Criminal
Court's denial of his petition for post-conviction relief. Herman was
convicted of aggravated assault, theft and possession of cocaine for
resale following pleas of guilty and nolo contendere on these charges.
He received consecutive sentences totaling 15 years, to be served in
Community Corrections, although his Community Corrections status was
later revoked and he was sent to the Department of Corrections. In
his post-conviction petition, he alleged he did not receive the
effective assistance of counsel, and as a result, his guilty pleas
were not knowingly and voluntarily made. The Hamilton County Criminal
Court found petitioner failed to prove his allegations and dismissed
his petition. On appeal, the appellant challenges the ruling below
with respect to both of these issues. In addition, he raises two
additional issues, (1) whether the state waived any defenses to the
petition by failing to file an answer, and (2) whether his due process
rights were violated when he did not receive a hearing prior to
revocation of his Community Corrections sentence. On review of the
record, we hold the evidence does not preponderate against the trial
court's findings that the appellant received the effective assistance
of counsel at the trial level and that his guilty pleas were knowingly
and voluntarily made, and we affirm the decision of the court below
with respect to those issues. Additionally, we hold the appellant is
not entitled to relief based upon his claims relating to the state's
failure to file an answer to the petition and the state's failure to
provide him with a Community Corrections revocation hearing.
Accordingly, we affirm the trial court's dismissal of the petition.
AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/HERMAN_OPN.WP6
STATE OF TENNESSEE
vs.
CALVIN C. LEACH
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
JOHN H. HENDERSON JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
407 C Main Street
P. O. Box 68 KAREN M. YACUZZO
Franklin, TN 37065-0068 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
JOSEPH D. BAUGH, JR.
District Attorney General
DEREK K. SMITH
Asst. District Attorney General
P. O. Box 937
Franklin, TN 37065-0937
Judge: Hayes
First Paragraph:
The appellant, Calvin C. Leach, was convicted, by a Williamson County
jury, of one count of sale of cocaine in excess of one-half gram, a
class B felony. In addition, the jury assessed a fine of ten thousand
dollars. The trial court imposed a sentence of ten years
incarceration in the Department of Correction and reduced the fine to
two thousand dollars. The appellant now appeals both his conviction
and sentence, challenging (1) the sufficiency of the evidence and (2)
the length of his sentence. After a review of the record, we find no
error in the judgment of the trial court. Accordingly, the
appellant's conviction and sentence are affirmed. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/LEACH_OPN.WP6
STATE OF TENNESSEE
vs.
JUDONE A. LEE
&
WILLIAM C. WATERS
Court:TCCA
Attorneys:
FOR THE APPELLEES FOR THE APPELLANT
Glenn R. Funk John Knox Walkup
222 Second Ave., N., Ste. 340-M Attorney General and Reporter
Nashville, Tennessee 37201 450 James Robertson Parkway
Nashville, Tennessee 37243-0493
for Judone A. Lee
William David Bridgers
Virginia Lee Story Assistant Attorney General
P.O. Box 1608 450 James Robertson Parkway
Franklin, Tennessee 37065-1608 Nashville, Tennessee 37243-0493
for William C. Waters
Victor S. Johnson, III
District Attorney General
Washington Square, Ste 500
222 Second Avenue, South
Nashville, Tennessee 37201
John Zimmerman
Asst District Attorney General
Washington Square, Ste 500
222 Second Avenue, South
Nashville, Tennessee 37201
Judge: Barker
First Paragraph:
The State of Tennessee appeals as of right the Davidson County
Criminal Court's dismissal of the Appellees' indictments for
possession of cocaine with intent to sell or deliver. The trial court
found that the Appellees' protection against former jeopardy had been
violated in that the Appellees had already been punished for their
crimes by the State's seizure of two vehicles used in the drug sale.
The State argues on appeal that the civil forfeiture of the Appellees'
vehicles does not amount to punishment pursuant to the double jeopardy
clauses of the United States and the Tennessee Constitutions. We
agree and reverse the trial court. REVERSED.
URL:http://www.tba.org/tba_files/TCCA/LEE-WATR_TN.WP6
STATE OF TENNESSEE
vs.
TIMOTHY ALAN
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
NANCY B. MYERS CHARLES W. BURSON
Assistant Public Defender Attorney General and Reporter
117 East Main Street
Gallatin, TN 37066 JANIS L. TURNER
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
LAWRENCE RAY WHITLEY
District Attorney General
THOMAS DEAN
Asst District Attorney General
113 East Main Street
Gallatin, TN 37066
Judge: WELLES
First Paragraph:
This is an appeal pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure. Pursuant to a plea agreement, the Defendant
entered pleas of guilty to one count of theft of property over the
value of five hundred dollars ($500.00) and one count of passing a
forged check. For these Class E felonies, the plea agreement provided
for concurrent sentences of two years for each offense, but the two
concurrent sentences were to be served consecutively to a prior
sentence of six years. The plea agreement provided that the manner of
service of the two-year sentences was left to the discretion of the
trial judge. AFFIRMED AS MODIFIED.
URL:http://www.tba.org/tba_files/TCCA/LOCKRITA_OPN.WP6
STATE OF TENNESSEE
vs.
TOMMY LEE MANOR
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
WILLIAM J. PEELER CHARLES W. BURSON
Porch, Peeler, Williams & Thomason Attorney General and Reporter
102 South Court Square
Waverly, TN 37185 CHARLOTTE H. RAPPUHN
Assistant Attorney General
WILLIAM H. FARMER 450 James Robertson Parkway
JAMES H. WALKER Nashville, TN 37243
Waller, Lansden, Dortch & Davis
511 Union Street, Ste. 2100 DAN ALSOBROOKS
District Attorney General
GEORGE SEXTON
Assistant District Attorney
Waverly, TN 37185
Judge: SMITH
First Paragraph:
This is an appeal pursuant to Rule 9, Tennessee Rules of Appellate
Procedure, from the judgment of the Circuit Court of Humphreys County
affirming the District Attorney's refusal to grant pretrial diversion.
On appeal, Appellant Tommy Lee Manor claims that the District
Attorney abused his discretion in denying his application for pretrial
diversion. For the reasons set forth, the judgment of the trial court
is affirmed. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/MANOR_OPN.WP6
STATE OF TENNESSEE
vs.
ELWIN SOUTH
Court:TCCA
Attorneys:
For the Appellant: For the Appellees:
Elwin N. South, Sr., Pro Se Charles W. Burson
L.C.R.C.F. Rt. 1, Box 330, Attorney General of Tennessee
Tiptonville, TN 38079 and
Ellen H. Pollack
Asst Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
John W. Pierotti, Jr.
District Attorney General
201 Poplar Avenue
Memphis, TN 38103-1947
Judge: Tipton
First Paragraph:
The defendant, Elwin South, appeals as of right from the Shelby County
Criminal Court's order denying his motion for reduction of sentence.
Pursuant to guilty pleas, the defendant was convicted of three counts
of attempted aggravated rape, a Class B felony, and sentenced to three
concurrent eight-year terms of confinement. The issue presented for
our review is whether the trial court erred by denying the defendant's
motion for reduction of sentence because it was untimely filed. The
underlying question in this appeal is when did the defendant file his
motion. We reverse the trial court and remand the case for
reconsideration in light of this opinion. REVERSED AND REMANDED.
URL:http://www.tba.org/tba_files/TCCA/SOUTH-E_OPN.WP6
STATE OF TENNESSEE
vs.
CHARLES E. WOODSON
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
WILLIAM C. BRIGHT CHARLES W. BURSON
Asst. Public Defender Attorney General and Reporter
128 North 2nd Street
Post Office Box 1208 JANIS L. TURNER
Pulaski, TN 38478 Assistant Attorney General
Criminal Justice Division
SHARA ANN FLACY 450 James Robertson Parkway
District Public Defender Nashville, TN 37243-0493
T. Michael Bottoms
District Attorney General
Post Office Box 459
Lawrenceburg, TN 38464
Judge: Hayes
First Paragraph:
The appellant, Charles E. Woodson, appeals as of right from a judgment
of the Maury County Circuit Court revoking his probation. In this
appeal, the appellant contends that the trial court erred by ordering
that his original sentence be reinstated without considering other
alternatives to incarceration. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/WOODSON_OPN.WP6
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© Copyright 1998 Tennessee Bar Association - This Issue IN THIS ORDER: