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.
- 00-New Opinions From TSC
- 00-New Opinions From TSC-Rules
- 00-New Opinions From TSC-Workers Comp Panel
- 06-New Opinions From TCA
- 13-New Opinions From TCCA
There are three ways to get the full opinion from the Web: (TBALink members only)
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
Feel free to forward this Opinion-Flash on to any attorney you know of with an internet address, who is not a TBALink member. To Join TBALink - Http://www.tba.org/join.html/
Would you like to receive the TBALink Opinion-Flash each day
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE
3) Leave the body of the message blank
Non TBA members are WELCOME to subscribe...it's free!!
Would you like to STOP receiving the TBALink Opinion-Flash?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: UNSUBSCRIBE
3) Leave the body of the message blank