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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KELLY CARR vs. UNITED PARCEL SERVICE, ET AL. Court:TSC Attorneys: FOR PLAINTIFF: FOR DEFENDANTS: Deanna C. Bell Charles Hampton White Nashville Rebecca Wells Demaree Nashville FOR AMICUS CURIAE, TENNESSEE MUNICIPAL FOR AMICUS CURIAE, LEAGUE RISK MANAGEMENT, JOYCE M. GRIMES: ET AL.: Joyce M. Grimes Pamela Lynn Reeves Nashville Knoxville Judge:HOLDER First Paragraph: This case comes to us on a certified question of law. The plaintiff, Kelly Carr, filed a sexual harassment action in the United States District Court for the Middle District of Tennessee alleging violations of both Title VII of the Civil Rights Act of 1964 ("Title VII") and the Tennessee Human Rights Act ("THRA"). She named as defendants her employer, United Parcel Service ("UPS"), and three UPS employees, Ron Foster, Martin Sisk, and Andrew Martin. Foster, Sisk, and Martin filed a motion for judgment on the pleadings arguing that they could not be held individually liable under either Title VII or the THRA. The district court entered an order requesting this Court "to resolve the issue of whether a defendant can be held individually liable under THRA." We accepted certification of the question. We hold that, under the facts as certified to us, the THRA does not impose individual liability in this case. URL:http://www.tba.org/tba_files/TSC/carrkell_opn.WP6 TALMADGE CARVER, et al. vs. CITIZEN UTILITIES COMPANY d/b/a CITIZENS TELECOMMUNICATIONS COMPANY OF TENNESSEE Court:TSC Attorneys: FOR PETITIONER: FOR RESPONDENTS: R. Eddie Wayland Ronald C. Koksal M. Kim Vance Knoxville Jonathan G. Chance Jon Edward Jones Nashville Cookeville FOR AMICUS CURIAE, TENNESSEE MUNICIPAL LEAGUE RISK MANAGEMENT, THE CITY OF KNOXVILLE, AND KNOXVILLE MAYOR VICTOR ASHE: Pamela L. Reeves Knoxville Judge:HOLDER First Paragraph: This case comes to us on a certified question of law. The plaintiffs, Talmadge G. Carver, Everett L. Bolin, Jr., Earlene G. Hart, and Melinda D. Robinson, filed suits in the United States District Court for the Middle District of Tennessee alleging violations of the Age Discrimination and Employment Act (ADEA), the Employment Retirement Income Security Act (ERISA), and the Tennessee Human Rights Act (THRA). They seek punitive damages under the THRA. The defendants, Citizens Utilities Company d/b/a Citizens Telecommunications Company of Tennessee, filed motions to dismiss the plaintiffs' claims for punitive damages. The district court has certified the following question for our resolution: whether punitive damages are available under the THRA? We accepted certification and hold that punitive damages are available under the THRA only for claims involving discriminatory housing practices and malicious harassment. URL:http://www.tba.org/tba_files/TSC/carvertg_opn.WP6 STATE OF TENNESSEE vs. CHARLES BOURGEOIS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: FRANK LANNOM JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter P.O. Box 649 Lebanon, TN 37088-0649 ELLEN H. POLLACK Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 TOM P. THOMPSON, JR. District Attorney General DOUG HALL Asst District Attorney General 111 Cherry Street Lebanon, TN 37087 Judge: WITT First Paragraph: The defendant, Charles Bourgeois, appeals his conviction of driving under the influence. Bourgeois was convicted following a jury trial in the Wilson County Criminal Court. The court sentenced him to serve 11 months, 29 days, with all but 10 days suspended in favor of probation, revoked his driver's license for one year, and fined him $350.00 plus costs. In this direct appeal, Bourgeois alleges the trial court improperly admitted evidence of the level of alcohol in his blood. Although we find no merit in this argument, we nevertheless reverse the defendant's conviction and remand for a new trial, based upon plain error in the trial court's instruction to the jury. URL:http://www.tba.org/tba_files/TCCA/bourgeoc_opn.WP6 STATE OF TENNESSEE vs. CARL E. CAMPEN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CHRISTOPHER VAN RIPER JOHN KNOX WALKUP Stuart & Van Riper Attorney General and Reporter 300 Market Street Clinton, TN 37716 KAREN M. YACUZZO Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243 MICKEY LAYNE District Attorney General STEPHEN E. WEITZMAN Assistant District Attorney P. O. Box 147 Manchester, TN 37355 Judge: SMITH First Paragraph: A Coffee County Circuit Court jury found Appellant Carl E. Campen guilty of driving under the influence of an intoxicant (DUI), fourth offense, and driving on a revoked license. For the DUI conviction, Appellant received a sentence of eleven months twenty-nine days in the county jail and a fine of seven thousand dollars. For the driving on a revoked license conviction, he received a sentence of one hundred eighty days in the county jail and a fine of five hundred dollars. The trial court ordered the sentences served consecutively. URL:http://www.tba.org/tba_files/TCCA/campen_opn.WP6 STATE OF TENNESSEE vs. DAVID M. CANTRELL Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN H. HENDERSON JOHN KNOX WALKUP District Public Defender Attorney General & Reporter 407-C Main Street P.O. Box 68 KAREN M. YACUZZO Franklin, TN 37065 Assistant Attorney General 425 Fifth Avenue North 2nd Floor, Cordell Hull Bldg Nashville, TN 37243 JOSEPH D. BAUGH, JR. District Attorney General RONALD L. DAVIS Asst District Attorney General Williamson County Courthouse, Ste. G-6 P.O. Box 937 Franklin, TN 37065 Judge:WOODALL First Paragraph: The Defendant, David L. Cantrell, appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. Following a jury trial in the Circuit Court of Hickman County, Defendant was convicted of four counts of aggravated rape and one count of false imprisonment. He was sentenced by the trial court to serve forty (40) years for each count of aggravated rape and eleven (11) months and twenty-nine (29) days for the false imprisonment conviction. Defendant was to serve all sentences concurrently, except for two of the forty (40) year sentences, resulting in a total sentence of eighty (80) years. Defendant challenges the sufficiency of the evidence and argues the eighty (80) year sentence is excessive. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/cantreld_opn.WP6 STATE OF TENNESSEE vs. GEORGE WESLEY HARVILLE, JR. Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Edward L. Boring John Knox Walkup Attorney at Law Attorney General & Reporter P. O. Box 381 500 Charlotte Avenue Pikeville, TN 37367 Nashville, TN 37243-0497 Daryl J. Brand Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 J. Michael Taylor District Attorney General 265 Third Avenue, Suite 300 Dayton, TN 37321 Will Dunn Asst District Attorney General 265 Third Avenue, Suite 300 Dayton, TN 37321 Judge: Jones First Paragraph: The appellant, George W. Harville, Jr., (defendant), was convicted of aggravated assault, a Class C felony, by a jury of his peers. The trial court found the defendant was a standard offender and imposed a Range I sentence consisting of a $5,000 fine and confinement for four (4) years in the Department of Correction. In this Court, the defendant contends the trial court committed error of prejudicial dimensions by failing to suppress evidence on the ground the aggravated assault occurred after an unlawful stop by a police officer. After a thorough review of the record, the briefs submitted by the parties, and the law governing the issue presented for review, it is the opinion of this Court that the judgment of the trial court should be affirmed. URL:http://www.tba.org/tba_files/TCCA/harvilgw_opn.WP6 STATE OF TENNESSEE vs. FRANKLIN JENKINS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: NATHANIEL H. KOENIG JOHN KNOX WALKUP 150 Second Ave., N., Suite 300 Attorney General & Reporter Nashville, TN 37201-1902 (On appeal) LISA A. NAYLOR Asst. Attorney General SHARA FLACY 450 James Robertson Pkwy. District Public Defender Nashville, TN 7243-0493 LARRY NICKELL MIKE BOTTOMS Asst. Public Defender District Attorney General P.O. Box 1208 Pulaski, TN 38478 RICHARD H. DUNAVANT (At trial) Asst. District Attorney General P.O. Box 304 Pulaski, TN 38478 Judge:PEAY First Paragraph: The defendant was indicted for aggravated assault committed by use of a deadly weapon. A jury convicted him of Class D aggravated assault and he was sentenced as a Range I standard offender to three years incarceration. In this direct appeal, the defendant contends that he is entitled to a new trial because the court below failed to instruct the jury on the lesser offense of assault. He also challenges the length of his sentence, contending that the trial court erred in applying certain enhancement factors. Upon our review of the record, we reverse the defendant's conviction and remand this matter for retrial. URL:http://www.tba.org/tba_files/TCCA/jenkinsf_opn.WP6 STATE OF TENNESSEE vs. KING DAVID JOHNSON, JR. Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: HERSHELL D. KOGER JOHN KNOX WALKUP P.O. Box 1148 Attorney General & Reporter Pulaski, TN 38478 (On appeal) SARAH M. BRANCH Counsel for the State LIONEL R. BARRETT, JR. 450 James Robertson Pkwy. Washington Square Two, Suite 417 Nashville, TN 37243-0493 222 Second Ave. Nashville, TN 37201 MIKE BOTTOMS (At trial) -and- ROBERT C. SANDERS District Attorney General P.O. Box 459 Lawrenceburg, TN 38464 Judge: PEAY First Paragraph: The defendant was indicted in June 1993 for first-degree murder of his girlfriend, Valerie Duke. A jury convicted him on February 27, 1996, of second-degree murder, and after a hearing, he was sentenced as a Range I standard offender to twenty years in the Tennessee Department of Correction. In this appeal as of right, the defendant challenges the sufficiency of the evidence and the appropriateness of his sentence. After a review of the record and applicable law, we affirm his conviction and remand the cause for resentencing. URL:http://www.tba.org/tba_files/TCCA/johnsonk_opn.WP6 STATE OF TENNESSEE vs. STANLEY LAWSON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN E. HERBISON JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 2016 Eight Avenue South Nashville, Tennessee 37204 DARYL J. BRAND Assistant Attorney General 450 James Robertson Parkway Nashville, Tennessee 37243 SALLIE WADE BROWN Asst District Attorney General 113 West Main Street Gallitin, Tennessee, 37066 Judge:WALKER First Paragraph: The defendant appeals a jury verdict finding him guilty of twenty-five counts of incest. The defendant was sentenced to seven years on each count, with counts one through ten to be served consecutively, and the others to be run concurrently. The jury assessed fines of ten thousand dollars per count. The court reduced the fines to two thousand dollars per count. URL:http://www.tba.org/tba_files/TCCA/lawsonop_wpd.WP6 STATE OF TENNESSEE vs. ANTONIO D. MASON Court:TCCA Attorneys: For the Appellant: For the Appellee: CURTIS H. GANN CHARLES W. BURSON Assistant Public Defender Attorney General and Reporter 105 South Main P. O. Box 1119 JANIS L. TURNER Fayetteville, TN 37334 Assistant Attorney General Criminal Justice Division (ON APPEAL) 450 James Robertson Parkway Nashville, TN 37243 0493 MICHAEL D. RANDLES Assistant Public Defender 117 S. Main, STE. 203 WILLIAM MICHAEL MCCOWN Shelbyville, TN 37160 District Attorney General (AT TRIAL) ROBERT CRIGLER Asst. District Attorney General JOHN HARWELL DICKEY One Public Square, STE 100 District Public Defender Shelbyville, TN 37160 Judge:Hayes First Paragraph: The appellant, Antonio D. Mason, appeals his jury convictions for attempted first degree murder, attempted aggravated robbery, and aggravated assault. The Bedford County Circuit Court imposed sentences of twenty-three years and six months for the attempted first degree murder conviction, six years for the attempted aggravated robbery conviction, and four years and six months for the aggravated assault conviction. The attempted aggravated robbery conviction was ordered to run consecutive to the attempted first degree murder conviction, resulting in a total effective sentence of twenty-nine years and six months. In this appeal, the appellant contends that the evidence presented at his jury trial was insufficient to support his conviction for attempted first degree murder. Second, the appellant asserts that the sentences imposed by the trial court were excessive. URL:http://www.tba.org/tba_files/TCCA/masonad_opn.WP6 STATE OF TENNESSEE vs. PHYLISS ANN McBRIDE Court:TCCA Attorneys: For the Appellant: For the Appellee: LANCE H. SELVA CHARLES W. BURSON 214 West Main Street Attorney General and Reporter Murfreesboro, TN 37130 LISA A. NAYLOR Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 WILLIAM WHITESELL District Attorney General Third Floor Judicial Building Murfreesboro, TN 37130 Judge:Hayes First Paragraph: The appellant, Phyliss Ann McBride, appeals her conviction, by a Rutherford County jury, for the first degree murder of her husband, Bobby McBride. The jury fixed the appellant's sentence at imprisonment for life. At a separate sentencing hearing, the trial court ordered the life sentence to run concurrently with seven prior unserved felony sentences. In this appeal, the appellant contends that (1) the trial court failed to comply with the mandatory jury selection procedure set forth in Tenn. R. Crim. P. 24(c); and (2) the trial court improperly restricted cross-examination of a State's witness. Additionally, the State cross-appeals challenging the trial court's decision that the appellant's life sentence should be served concurrently with her seven felony sentences. URL:http://www.tba.org/tba_files/TCCA/mcbridep_opn.WP6 PERRY T. MILLER vs. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Perry T. Miller, Pro Se Charles W. Burson #87879 Attorney General of Tennessee CCA/SCCF, P.O. Box 279 and Clifton, TN 38425-0279 Eugene J. Honea Asst Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493 W. Michael McCown District Attorney General P.O. Box 904 Fayetteville, TN 37334 Judge:Tipton First Paragraph: The petitioner, Perry T. Miller, appeals as of right from the Lincoln County Circuit Court's summary dismissal of his petition for post-conviction relief. The trial court dismissed the petition, concluding that the petition was barred by the statute of limitations and that the grounds alleged in the petition had been waived or previously determined. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/millerpt_opn.WP6 DAVID PETERS vs. RICKY BELL, WARDEN Court:TCCA Judge: SMITH First Paragraph: This matter is before the Court upon the state's motion requesting that the judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules. Although not for the reasons set forth in the state's motion, we find that this is an appropriate case for affirmance pursuant to Rule 20. URL:http://www.tba.org/tba_files/TCCA/petersd1_ord.WP6 LEN MARTUCCI vs. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: J. Michael Clement Charles W. Burson 210 Charles Seivers Blvd. Attorney General of Tennessee Clinton, TN 37716 and John Patrick Cauley Asst Attorney General of TN 450 James Robertson Parkway Nashville, TN 37243-0493 James N. Ramsey District Attorney General and Jan Hicks Asst District Attorney General Anderson County Courthouse Clinton, TN 37716 Judge:Tipton First Paragraph: The petitioner, Len Martucci, appeals as of right from the Anderson County Criminal Court's denial of his petition for post-conviction relief after an evidentiary hearing. The petitioner has filed a somewhat rambling, ninety-five page brief in this court raising a panoply of issues. Essentially, the petitioner argues that he is entitled to post-conviction relief. URL:http://www.tba.org/tba_files/TCCA/martucl_opn.WP6 STATE OF TENNESSEE vs. FREDERICK R. PORTER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CHARLES L. BEACH JOHN KNOX WALKUP 365 Market St. Attorney General & Reporter Clinton, TN 37716 (At trial and on appeal) MARVIN E. CLEMENTS, JR. Asst. Attorney General DEBORAH MURPHY BEACH 450 James Robertson Pkwy. 365 Market St. Nashville, TN 37243-0493 Clinton, TN 37716 (At trial) ROBERT L. JOLLEY, JR. Special Prosecutor DAVID HILL P. O. Box 1468 301 E. Broadway Knoxville, TN 37901-1468 Newport, TN 37821-3105 (At trial) Judge:PEAY First Paragraph: The defendant was charged with the premeditated murder of Gerald Brown, the felony murder of Gerald Brown, and the attempted premeditated murder of Jerome Anderson. After a jury trial, he was convicted of the second-degree murder of Gerald Brown and attempted second-degree murder of Jerome Anderson; following the verdict, the trial court dismissed the charge of felony murder. After a hearing, the trial court sentenced the defendant as a Range I standard offender to twenty-five years incarceration for the murder offense and twelve years incarceration on the attempted murder offense. The sentences were run consecutively. URL:http://www.tba.org/tba_files/TCCA/porterfr_opn.WP6
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