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TBALink Opinion-Flash
January 9, 1998 -- Volume #4 -- Number #006
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
WILLIAM J. BUNCH vs. WALTON I. BUNCH and STEVEN B. BUNCH Court:TCA Attorneys: L. L. Harrell, Jr.; Harrell & Harrell of Trenton For Appellee G. Griffin Boyte of Humboldt For Appellants Judge:CRAWFORD First Paragraph: This case involves a suit to partition certain real and personal property owned by three brothers as joint tenants with the right of survivorship. Walton and Steven Bunch appeal the order of the trial court granting the sale for partition. URL:http://www.tba.org/tba_files/TCA/bunchwm_opn.WP6
PORTER FREEMAN
vs.
ROBERT RING, COUNTY
EXECUTIVE, JERRY SHARBER,
MAYOR, and JAMES JOHNSON,
ADMINISTRATOR
Court:TCA
Attorneys:
PORTER FREEMAN
7131 Nolensville Road
Nolensville, Tennessee 37135
Pro Se/Plaintiff/Appellant
RICHARD A. BUERGER
306 Public Square
Franklin, Tennessee 37064
Attorney for Defendant/Appellee Robert Ring
DOUGLAS BERRY
Suntrust Center
424 Church Street, Suite 2900
Nashville, Tennessee 37219
Attorney for Defendants/Appellees Jerry Sharber and James Johnson
Judge:BUSSART
First Paragraph:
The appellant sought to enjoin both city and county officials from the
sale of general obligation bonds. The Chancery Court of Franklin
granted all defendants' motions to dismiss pursuant to Rule 12.02(6)
of the Tennessee Rules of Civil Procedure. On appeal, we must
determine whether the trial court erred in not considering the
petition for injunction on the merits as against either the city or
the county defendants.
URL:http://www.tba.org/tba_files/TCA/freemanp_opn.WP6
TENNESSEE DEPARTMENT OF
HEALTH, DIVISION OF HEALTH
RELATED BOARDS and
THE BOARD OF MEDICAL
EXAMINERS
vs.
W. DWIGHT FRISBEE, M.D.
Court:TCA
Attorneys:
For the Plaintiffs/Appellees: For the Defendant/Appellant:
John Knox Walkup Wayne L. Robbins, Jr.
Attorney General and Reporter Gullett, Sanford, Robinson
& Martin
Nashville, Tennessee
Michelle K. Hohnke
Assistant Attorney General Daniel D. Warlick
Warlick & Todd
Nashville, Tennessee
Judge:KOCH
First Paragraph:
This appeal presents an issue of first impression concerning the
evidentiary standards applicable to disciplinary proceedings involving
licensed physicians. The Tennessee Department of Health perfected an
interlocutory appeal to the Chancery Court for Davidson County after
an administrative law judge disqualified its expert witness for
failing to satisfy the locality rule generally applicable in medical
malpractice cases. The trial court reversed the administrative law
judge's decision after concluding that a physician's conduct should be
measured by a statewide standard of minimum competency rather than a
particularized local standard of care. While the administrative law
judge's decision was correct with regard to two of the charges, we
affirm the trial court's decision in part because several of the
charges in this proceeding only require proof that a physician has
failed to meet statewide, minimal competency standards.
URL:http://www.tba.org/tba_files/TCA/frisbewd_opn.WP6
BRIAN DAVID McCRAY
vs.
IRENE CAROL KLANSECK McCRAY
Court:TCA
Judge:TODD
First Paragraph:
The appellee has filed a respectful petition to rehear which has been
duly considered. The mathematical error in quoting of the record and
other matters mentioned in the petition are insufficient to alter the
decision of this Court.
URL:http://www.tba.org/tba_files/TCA/mccray_reh.WP6
DEMETRA LYREE PARKER
vs.
WARREN COUNTY
UTILITY DISTRICT
Court:TCA
Attorneys:
ROBERT S. PETERS
SWAFFORD PETERS & PRIEST
Winchester, Tennessee
Attorney for Appellant
DIANNA BAKER SHEW
STEPHEN H. PRICE
FARRIS, WARFIELD & KANADAY, PLC
Nashville, Tennessee
Attorneys for Appellee
Judge:HIGHERS
First Paragraph:
Plaintiff Demetra Lyree Parker appeals the trial court's order
granting the motion for summary judgment filed by Defendant/Appellee
Warren County Utility District. We reverse the trial court's judgment
based on our conclusion that a genuine issue of material fact exists
as to whether the Utility District responded promptly, adequately, and
effectively to Parker's allegations of sexual harassment against the
Utility District's general manager.
URL:http://www.tba.org/tba_files/TCA/parkerdl_opn.WP6
UNION PLANTERS NATIONAL
BANK, as Executor and Trustee
Under the Will of JAMES A. LeROY,
Deceased
vs.
BETTYE CLAIRE REINHARDT
DEDMAN, JOHN DEDMAN, BERNICE
A. LeROY, JILL LeROY DIMICELI
and SUE LeROY HENDERSON
Court:TCA
Attorneys:
Marion S. Boyd, Jr., WYATT, TARRANT & COMBS, Memphis, Tennessee
Attorney for Petitioner/Appellant.
Allan J. Wade, BAKER, DONELSON, BEARMAN & CALDWELL, Memphis, TN
Attorney for Respondents/Appellees.
Judge:FARMER
First Paragraph:
Union Planters National Bank ("Bank"), as executor for the estate of
James A. LeRoy ("Testator"), filed an action in the Probate Court of
Shelby County for probate of Testator's will on January 5, 1989. Bank
subsequently filed suit for declaratory judgment against the
beneficiaries and legatees of Testator's property ("appellees")
alleging that the residuary estate provided for in Testator's will to
pay all death taxes was insufficient to cover his tax liability and
seeking restitution from the appellees for their proportional share.
Dedman appellees responded by contending that the post-death
appreciation of residuary estate assets and the receipt of income from
those assets had sufficiently increased the value of the residuary
estate to enable it to sufficiently cover all death taxes requested by
Bank. The Special Master appointed by the trial judge confirmed the
sufficiency of the residuary estate on the date the taxes were due.
The trial court entered judgment for appellees confirming the report
of the Special Master finding that there was no shortfall in the
residuary estate established by the testator in his will and thus
rendering appellees not liable to Bank for reimbursement of death
taxes in any amount. We find the decision of the lower court as to
the issue of post-death income to the residuary trust to be in error
and remand. Due to the complicated facts of this case and our
determination that one issue in this case requires a remand to the
lower court, we will only present the facts relevant to that issue.
URL:http://www.tba.org/tba_files/TCA/unionp_t.WP6
Winslow Watson
vs.
Tennessee Department of Correction,
Tennessee Board of Paroles, Correction
Corporation of America, and Jody Benjamin
Court:TCA
Attorneys:
WINSLOW WATSON, PRO SE
Turney Center Prison
Only, Tennessee 37140
JOHN KNOX WALKUP
Attorney General and Reporter
JOHN R. MILES
Counsel for the State
Cordell Hull Bldg., Second Floor
425 5th Avenue North
Nashville, Tennessee 37243-0488
ATTORNEY FOR THE TENNESSEE DEPARTMENT OF
CORRECTION AND THE TENNESSEE BOARD OF PAROLES
Judge:LEWIS
First Paragraph:
This is an appeal by petitioner/appellant, Winslow Watson, from a
decision of the chancery court dismissing his petition for a
declaratory judgment pursuant to the Declaratory Judgment Act,
Tennessee Code Annotated section 29-14-101 to -113.
URL:http://www.tba.org/tba_files/TCA/watsonw_opn.WP6
STATE OF TENNESSEE
vs.
STANLEY H. BAKER
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Elaine B. Beeler Charles W. Burson
Assistant Public Defender Attorney General and Reporter
P.O. Box 68
Franklin, TN 37065-0068 Daryl J. Brand
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Ronald L. Davis
Assistant District Attorney General
P.O. Box 937
Franklin, TN 37065-0937
Judge:WADE
First Paragraph:
The defendant, Stanley H. Baker, was convicted of driving under the
influence of an intoxicant, third offense, and driving on a revoked
license. Tenn. Code Ann. SS 55-10-401 and 55-50-504. The trial court
imposed concurrent sentences of eleven months and twenty-nine days for
the DUI, third offense, and six months for driving on a revoked
license; all but one hundred twenty days were suspended on each
conviction. At the time of the offenses, the defendant was serving an
eleven-month and twenty-nine-day sentence on a 1994 DUI conviction.
The trial court revoked probation and required a thirty-five day
consecutive sentence before reinstatement of the probationary term.
URL:http://www.tba.org/tba_files/TCCA/bakersta_opn.WP6
SHEDRICK CARRUTHERS
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Shedrick Carruthers, Pro Se John Knox Walkup
N.E.C.C. ANNEX Attorney General & Reporter
P.O. Box 5000
Mountain City, 37683-5000 Clinton J. Morgan
Counsel for the State
450 James Robertson Parkway
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
Alanda Horne
Asst District Attorney General
Criminal Justice Complex, Suite 301
201 Poplar Avenue
Memphis, TN 38103
Judge:SUMMERS
First Paragraph:
This case represents an appeal from the dismissal of the petitioner's
petition for post-conviction relief. On May 10, 1990, the petitioner
pled guilty to aggravated rape and was sentenced to seventeen years
imprisonment. No appeal was taken. On January 28, 1997, the
petitioner filed a petition for post conviction relief alleging an
invalid indictment. Finding that the statute of limitations had
expired, the trial court dismissed the petition without a hearing.
URL:http://www.tba.org/tba_files/TCCA/carruthe_opn.WP6
STATE OF TENNESSEE
vs.
RICKY HILL KRANTZ
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Karl Dean Charles W. Burson
District Public Defender Attorney General of Tennessee
and and
Jeffrey A. DeVasher Christina S. Shevalier
Michele S. Hall Asst Attorney General of TN
Sheila Jones 450 James Robertson Parkway
Assistant Public Defenders Nashville, TN 37243-0493
Stahlman Bldg.
211 Union Street Victor S. Johnson, III
Nashville, TN 37201-5066 District Attorney General
(ON APPEAL) and
Katrin Novak Miller
David M. Siegel Nicholas Bailey
Jeff Powell Asst District Attorneys General
Assistant Public Defenders 102 Metro Courthouse
Stahlman Bldg. Nashville, TN 37201
211 Union Street
Nashville, TN 37201-5066
(AT TRIAL)
Judge:Tipton
First Paragraph:
The defendant, Ricky Hill Krantz, appeals as of right from his
conviction by a jury in the Davidson County Criminal Court for felony
murder and aggravated assault, a Class C Felony. The defendant was
sentenced to life imprisonment for the felony murder conviction and as
a Range II, multiple offender to seven years in the custody of the
Department of Correction for the aggravated assault conviction. The
trial court ordered the defendant's sentences to be served
consecutively.
URL:http://www.tba.org/tba_files/TCCA/krantzrh_opn.WP6
STATE OF TENNESSEE
vs.
ROBERT ALLEN McKENZIE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Justin Johnson John Knox Walkup
Attorney at Law Attorney General & Reporter
2131 Murfreesboro Road, Ste 205 500 Charlotte Avenue
Nashville, TN 37217 Nashville, TN 37243-0497
Ellen H. Pollack
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Tom P. Thompson, Jr.
District Atty General Pro Tempore
P.O. Box 178
Hartsville, TN 37074-0178
John D. Wootten, Jr.
Asst District Atty General
P.O. Box 178
Hartsville, TN 37074-0178
Judge:Jones
First Paragraph:
The issue which this court must resolve is whether the statute of
limitations commences in an accessory after the fact prosecution when
(a) the crime is committed or (b) the principal offender is convicted.
The trial court found the statute of limitations does not commence
until the principal offender is convicted. The defendant contends the
statute of limitations commences when the crime of accessory after the
fact is committed. After a thorough review of the record, the briefs
submitted by the parties, and the law pertaining to the issue
presented for review, it is the opinion of this court the statute of
limitations commenced to run in this prosecution for accessory after
the fact when the offense was committed. Therefore, the judgment of
the trial court is reversed and the prosecution is dismissed since the
prosecution was barred by the statute of limitations.
URL:http://www.tba.org/tba_files/TCCA/mcknzira_opn.WP6
MICHAEL MCNEIL
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Frank Deslauriers John Knox Walkup
P.O. Box 1156 Attorney General and Reporter
Covington, TN 38019
Deborah A. Tullis
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
James G. (Jerry) Woodall
District Attorney General
Al Earls
Asst. District Attorney General
Lowell Thomas State Office Bldg.
Jackson, TN 38301
Judge:Hayes
First Paragraph:
The appellant, Michael McNeil, appeals the Madison County Circuit
Court's denial of his petition for post-conviction relief arising from
his 1989 convictions for three counts of grand larceny and three
counts of burglary. These convictions served as triggering offenses
for the jury's finding that the appellant was an habitual criminal.
Accordingly, the sentences were enhanced to six life sentences. On
March 30, 1993, the appellant filed a pro se petition for
post-conviction relief alleging ineffective assistance of counsel
based upon (1) a conflict of interest arising from joint
representation of the appellant and his co-defendant and (2) deficient
performance in failing to present an alibi defense.
URL:http://www.tba.org/tba_files/TCCA/mcneilm_opn.WP6
PHILLIP W. POMEROY
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Samuel F. Anderson, Attorney Charles W. Burson
2016 Eighth Avenue South Attorney General and Reporter
Nashville, TN 37204
Elizabeth B. Marney
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Tom Thurman
Asst District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201-1649
Judge:WADE
First Paragraph:
The petitioner, Phillip W. Pomeroy, appeals the trial court's
dismissal of his petition for post-conviction relief. The single
issue presented for review is whether the petition is barred by the
statute of limitations.
URL:http://www.tba.org/tba_files/TCCA/pomeroyp_opn.WP6
GARY L. SHIRLEY
vs.
STATE OF TENNESSEE
Court:TCCA
Judge:JONES
First Paragraph:
On April 6, 1994, the petitioner entered guilty pleas to one count of
first degree murder and two counts of attempted first degree murder.
He was sentenced to life for the murder conviction and twenty-five
years each for the attempt convictions, all of which were run
concurrently. No appeal was taken. On October 16, 1996, the
petitioner filed a petition for post-conviction relief alleging
ineffective assistance of counsel and involuntary guilty pleas.
Finding that the statute of limitations expired, the trial court
dismissed the petition without a hearing.
URL:http://www.tba.org/tba_files/TCCA/shirley2_ord.WP6
STATE OF TENNESSEE
vs.
GEROME J. SMITH
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
LIONEL R. BARRETT JOHN KNOX WALKUP
Washington Square Two Attorney General & Reporter
Suite 417
222 Second Avenue, North LISA A. NAYLOR
Nashville, TN 37201 Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General Pro Tem
KYMBERLY HAAS
Assistant District Attorney General
SHARON BROX
Assistant District Attorney General
Washington Square Two
Suite 500
222 Second Avenue, North
Nashville, TN 37201
Judge:WOODALL
First Paragraph:
The Defendant, Gerome J. Smith, appeals as of right from a conviction
of first degree murder following a jury trial in the Sumner County
Criminal Court. Defendant was subsequently sentenced to life
imprisonment. In this appeal, Defendant argues that the evidence is
insufficient as a matter of law to allow a rational trier of fact to
conclude that the Defendant committed premeditated first degree
murder. We affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/smithgj_opn.WP6
MICHAEL L. SOUTH
vs.
STATE OF TENNESSEE
Court:TCCA
Judge:HAYES
First Paragraph:
This case represents an appeal from the dismissal of the petitioner's
second petition for post-conviction relief. The petitioner was
originally convicted of aggravated rape and aggravated robbery, and
received consecutive sentences of sixty and thirty years respectively.
The petitioner also alleges that he was convicted of aggravated
burglary and theft. On appeal, this Court affirmed the convictions of
aggravated rape and aggravated robbery; the petitioner apparently did
not appeal the other two convictions. State v. Michael R. South, No.
02C01-9209-CR-00203 (Tenn. Crim. App., Sept. 15, 1993). The Supreme
Court denied application for permission to appeal on March 7, 1994.
URL:http://www.tba.org/tba_files/TCCA/south-m_ord.WP6
STATE OF TENNESSEE
vs.
TRACEY E. STIGALL
Court:TCCA
Attorneys:
FOR THE APPELLANT:
A. C. WHARTON, JR.
Shelby County Public Defender
TIMOTHY J. ALBERS (Trial)
Assistant Public Defender
201 Poplar, Ste. 201
Memphis, TN 38103
EDWARD G. THOMPSON (Appeal)
Assistant Public Defender
212 Adams Avenue
Memphis, TN 38103
FOR THE APPELLEE:
JOHN KNOX WALKUP
Attorney General and Reporter
SARAH M. BRANCH
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
DAVID B. SHAPIRO
Assistant District Attorney General
201 Poplar Avenue, Ste. 301
Memphis, TN 38103-1947
Judge:RILEY
First Paragraph:
Defendant, Tracey E. Stigall, was convicted by a Shelby County jury of
the offense of aggravated burglary. The sole issue in this direct
appeal is whether the trial court erred in failing to charge lesser
offenses. We AFFIRM the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/stigalte_opn.WP6
STATE OF TENNESSEE
vs.
BUFFY M. TWADELL
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Steven F. Glaser Charles W. Burson
Assistant Public Defender Attorney General and Reporter
Eighteenth Judicial District
117 East Main Street Karen M. Yacuzzo
Gallatin, TN 37066 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Thomas Dean
Asst District Attorney General
113 West Main Street
Gallatin, TN 37066
Judge:WADE
First Paragraph:
The defendant, Buffy Mae Twadell, has been indicted on two counts of
aggravated perjury. Tenn. Code Ann. S 39-16-703. The district
attorney general denied the defendant's application for pretrial
diversion. Thereafter, the trial court denied her petition for a writ
of certiorari. In this extraordinary appeal made pursuant to Rule 10
of the Tennessee Rules of Appellate Procedure, the defendant insists
that the district attorney general abused his discretion by the denial
of pretrial diversion. We affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/twadellb_opn.WP6
STATE OF TENNESSEE
vs.
TYRONE WATKINS
Court:TCCA
Attorneys:
For Appellant: For Appellee:
David A. Doyle Charles W. Burson
District Public Defender Attorney General and Reporter
Eighteenth Judicial District
117 East Main Street Clinton J. Morgan
Gallatin, TN 37066 Counsel for the State
450 James Robertson Parkway
Nashville, TN 37243-0493
Thomas Dean
Asst District Attorney General
113 West Main Street
Gallatin, TN 37066
Judge:WADE
First Paragraph:
The defendant, Tyrone Watkins, was convicted on July 18, 1994, of two
Class A misdemeanors. While allowing pretrial jail credit, the trial
court imposed consecutive sentences of eleven months and twenty-nine
days, the remainder of which was to be served on probation. On
February 16, 1996, a warrant was issued which resulted in the
revocation of probation.
URL:http://www.tba.org/tba_files/TCCA/watkinst_opn.WP6
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