-
TBALink Opinion-Flash
January 14, 1998 -- Volume #4 -- Number #009
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 Opinons From TSC
- 00-New Opinons From TSC-Rules
- 01-New Opinons From TSC-Workers Comp Panel
- 11-New Opinons From TCA
- 08-New Opinons From TCCA
- 00-New Opinons From TSC
There are three ways to get the full opinion from the Web: (TBALink members only)
- Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a plain text
version of the opinion.
- *NEW* Browse the Opinion List area of TBALink. This option will allow you
to download the original WP 6.0 document.
version of the opinion.
- Click the URL Link at end of each Opinion paragraph below. This option will allow you to download the original WP 6.0 document.
George Dean
TBALink Chief Editor
BOBBY L. SMITH VS. LAUREN CONSTRUCTORS, INC., Court:TSC - Workers Comp Panel Judge:KILCREASE First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. URL:http://www.tba.org/tba_files/TSC_WCP/smithb_wc.WP6
DEROYAL INDUSTRIES, INC.
VS.
RUTH E. JOHNSON,
COMMISSIONER OF REVENUE,
STATE OF TENNESSEE
Court:TCA
Attorneys:
John Knox Walkup and Sean P. Scally, Nashville, for the Appellant.
Dale C. Allen and H. Bruce Guyton, Knoxville, for the Appellee.
Judge:INMAN
First Paragraph:
This is a sales tax deficiency case. The taxpayer filed a
determinative action in the Chancery Court of Claiborne County against
the Commissioner of Revenue, who filed a motion to dismiss alleging
improper venue. The motion was denied, and the case proceeded to
judgment. The Commissioner appeals, insisting, inter alia, that the
Chancellor erred in holding that Claiborne County was a proper venue.
URL:http://www.tba.org/tba_files/TCA/deroyal_ca3.WP6
JANICE R. GRAVES and
JOHN GRAVES
VS.
GRADY'S INC.,
LAMONTAGNE SELECTED
WOOD FURNISHINGS, and
RICHARDSON TURNER
CONSTRUCTION CO.
Court:TCA
Attorneys:
Philip Durand, Lars E. Schuller, and Andrew L. Colcotronis, Knoxville,
for Appellants.
Linda J. Hamilton Mowles, Knoxville, for Appellees Richardson Turner
Construction Company.
Terrill L. Adkins, Knoxville, for Appellee LaMontagne Selected Wood
Finishings
Judge:INMAN
First Paragraph:
This is the second appeal of this case. The first opinion is reported
in 906 S.W.2d 463 (Tenn. App. 1995), to which we make reference for
the basis and history of this litigation. The manufacturer of the
offending booth, LaMontagne, and the general contractor, Richardson
Turner, were dismissed by the trial court which held that the one-year
statute of limitations barred the action since it was filed April 25,
1994 and the accident occurred November 13, 1992.
URL:http://www.tba.org/tba_files/TCA/graves_ca3.WP6
TERESA ANN HUGHES HAREN
VS.
JAMES SKYLER HAREN
Court:TCA
Attorneys:
ROGER E. JENNE, JENNE, SCOTT & BRYANT, Cleveland, for
Plaintiff-Appellant.
JAMES F. LOGAN, JR., LOGAN, THOMPSON, MILLER, BILBO, THOMPSON &
FISHER, P.C., Cleveland, for Defendant-Appellee.
Judge:Franks
First Paragraph:
In this divorce action the appeals focus on the Trial Judge's custody
determination, the award of alimony and child support, and the
division of marital assets.
URL:http://www.tba.org/tba_files/TCA/harent_opn.WP6
VICKY HARVELL, as next friend of
JEREMY TRAMMELL WILLIAMS
VS.
MARY WILLIAMS
Court:TCA
Attorneys:
WILLIAM S. FLEMING
207 West Eighth Street
P. O Box 90
Columbia, TN 38402-0090
Attorney for Plaintiff/Appellee
JANET C. DAVEY
711 North Garden Street
P. O. Box 631
Columbia, TN 38402-0631
Attorney for Defendant/Appellant
Judge:CANTRELL
First Paragraph:
The trial court declared that a piece of residential property held in
the name of the defendant was subject to the equitable remedy of a
resulting trust for the benefit of her grandson. The defendant argues
on appeal that the plaintiff was not entitled to such a remedy because
he did not meet the required burden of proof, and because of the
doctrine of unclean hands. We affirm the trial court.
URL:http://www.tba.org/tba_files/TCA/harvellv_opn.WP6
DAVID HENSON and SARAH
HENSON, Individually and as
Parents and Next Friends of
CASEY ERIN HENSON, a Minor
VS.
CARTER EXPRESS, INC.;
ASTRO ENTERPRISES, INC.; and
DONALD R. HURT
VS.
KASBAR NATIONAL
INDUSTRIES, INC.; SATHER
TRUCKING CORPORATION; and
DANNY L. WARREN
Court:TCA
Attorneys:
Charles J. Gearhiser and Michael A. Anderson, Chattanooga, and W.
Charles Doerflinger, Lawrenceburg, for Plaintiffs.
John T. Rice, Chattanooga, for Defendants Carter Express, Inc., Astro
Enterprises, Inc., and Donald R. Hurt.
Steven W. Keyt, Chattanooga, for Defendant Sather Trucking
Corporation.
Judge:INMAN
First Paragraph:
A jury awarded Casey Henson, age 15, $155,000.00 for damages for
personal injuries she sustained in a traffic crash.
URL:http://www.tba.org/tba_files/TCA/henson_ca3.WP6
ROBERT L. OGBURN
VS.
TENNESSEE DEPARTMENT OF
CORRECTION, ET AL.
Court:TCA
Attorneys:
ROBERT L. OGBURN
Cold-Creek Correctional Facility
B-3, Cell #38
Post Office Box 1000
Henning, Tennessee 38041-1000
Pro Se/Petitioner/Appellant
JOHN KNOX WALKUP
Attorney General and Reporter
JOHN R. MILES
Assistant Attorney General
Cordell Hull Building, Second Floor
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
Attorney for Respondents/Appellees
Judge:CANTRELL
First Paragraph:
An inmate in the Tennessee prison system sought a declaratory judgment
that the Tennessee Department of Correction's Policy 502.02 was
unconstitutional and that it was also unenforceable because it was not
promulgated according to the Administrative Procedures Act. The
Chancery Court of Davidson County dismissed the petitioner's claims.
We affirm.
URL:http://www.tba.org/tba_files/TCA/ogburnrl_opn.WP6
URL:http://www.tba.org/tba_files/TCA/ogburnrl_dis.WP6
DOROTHY RIDLEY
VS.
BARRY RIDLEY,
and
RODNEY WHEELER and
SANDRA WHEELER
Court:TCA
Attorneys:
For Appellant For Appellees Wheelers
DEBRA L. HOUSE NO APPEARANCE
Southeast Tennessee Legal Services
Cleveland, Tennessee
Judge:Susano
First Paragraph:
In this case, we must decide if the order of the trial court, from
which this appeal is being pursued, is properly before us. Our review
of the record persuades us that it is not.
URL:http://www.tba.org/tba_files/TCA/ridleyd_opn.WP6
VICKY HARVELL, as next friend of
JEREMY TRAMMELL WILLIAMS
VS.
MARY WILLIAMS
Court:TCA
Attorneys:
WILLIAM S. FLEMING
207 West Eighth Street
P. O Box 90
Columbia, TN 38402-0090
Attorney for Plaintiff/Appellee
JANET C. DAVEY
711 North Garden Street
P. O. Box 631
Columbia, TN 38402-0631
Attorney for Defendant/Appellant
Judge:CANTRELL
First Paragraph:
The trial court declared that a piece of residential property held in
the name of the defendant was subject to the equitable remedy of a
resulting trust for the benefit of her grandson. The defendant argues
on appeal that the plaintiff was not entitled to such a remedy because
he did not meet the required burden of proof, and because of the
doctrine of unclean hands. We affirm the trial court.
URL:http://www.tba.org/tba_files/TCA/stinsong_opn.WP6
GEORGE STINSON,
EDWARD D. LEWIS and
GELSCO OF TENNESSEE, INC.
VS.
138 FIFTH AVENUE SOUTH, INC.,
138 FIFTH AVENUE SOUTH
ASSOCIATES, L.P., ALBERT DEL
FAVERO, JR., and METROPOLITAN
DEVELOPMENT AND HOUSING
AUTHORITY
Court:TCA
Judge:CANTRELL
First Paragraph:
I concur in the conclusion that paragraph 17 of the lease was not
triggered by the sale from the lessors to MDHA. I am also of the
opinion that the critical sentence beginning with "All damages awarded
for such taking . . ." refers to a partial taking, because the damages
are described later in the sentence as "compensation for diminution in
value to the leasehold or to the fee of the property herein leased."
A taking of the whole would not diminish the value of the leasehold or
the fee; it would extinguish the leasehold and the fee and replace
them with a monetary award.
URL:http://www.tba.org/tba_files/TCA/stinsong_con.WP6
STATE OF TENNESSEE
DEPARTMENT OF HUMAN
SERVICES,
JOSHUA A. WILLIAMSON
VS.
CHRISTINA SANDERS
Court:TCA
Attorneys:
Jean Brown Dyer, Lenoir City, for Appellant.
John R. Rosson, Jr., Knoxville, for Appellee.
Judge:INMAN
First Paragraph:
An Order of Legitimation of the child of Joshua Allen Williamson and
Christina Louise Sanders, born September 13, 1995 in West Germany, was
entered on May 21, 1996.
URL:http://www.tba.org/tba_files/TCA/willmson_ca3.WP6
MIKE ALLRED
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
KELLY WILLIAMS JOHN KNOX WALKUP
P.O. Box 608 Attorney General and Reporter
Livingston, TN 38570
DARYL J. BRAND
Assistant Attorney General
425 5th Avenue North
Nashville, TN 37243
BILL GIBSON
District Attorney General
OWEN G. BURNETT
Assistant District Attorney General
145 South Jefferson Avenue
Cookeville, TN 38501
Judge:WELLES
First Paragraph:
The Petitioner, Terry Michael Allred, appeals pursuant to Rule 3 of
the Tennessee Rules of Appellate Procedure the trial court's denial of
his petition for post-conviction relief. He argues that (1) trial
counsel rendered ineffective assistance, and that (2) he was
prejudiced because the State failed to provide an audiotape regarding
the offense for which he was charged until three days before his
trial. We affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/allredtm_opn.WP6
FREDERICK A. AVERY
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
MARK J. FISHBURN JOHN KNOX WALKUP
100 Thompson Lane Attorney General & Reporter
Nashville, TN 37211
CLINTON J. MORGAN
Counsel for the State
425 Fifth Ave. N.
2nd Floor, Cordell Hull Bldg.
Nashville, TN 37243-0493
VICTOR S. JOHNSON, III
District Attorney General
ROGER MOORE
Asst. District Attorney General
500 Washington Sq.
222 2nd Ave. N.
Nashville, TN 37201
Judge:PEAY
First Paragraph:
The petitioner filed for post-conviction relief on April 20, 1994; an
amended petition was filed on November 15, 1995. In response to
charges of felony murder, aggravated robbery, robbery, attempt to
commit robbery, aggravated burglary, theft of property and aggravated
assault, the petitioner pled guilty on August 13, 1993, to
second-degree murder and to robbery. As part of the plea-bargain, the
remaining charges were dismissed and he was sentenced to twenty-five
years as a Range I standard offender on the murder charge and to a
consecutive term of ten years as a Range II multiple offender on the
robbery charge. The petitioner contends that his guilty pleas were
the result of ineffective assistance of counsel and therefore not
voluntarily, knowingly and intelligently made. After an evidentiary
hearing, the court below denied relief. We affirm.
URL:http://www.tba.org/tba_files/TCCA/averyfa_opn.WP6
STATE OF TENNESSEE
VS.
ROBERT CHADWELL BROTHERS
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN B. MELTON, III JOHN KNOX WALKUP
120 East Main Street Attorney General & Reporter
Nations Bank Building
Third Floor EUGENE J. HONEA
Murfreesboro, TN 37133-1336 Assistant Attorney General
2nd Floor, Cordell Hull Bldg
425 Fifth Avenue North
Nashville, TN 37243
WILLIAM C. WHITESELL
District Attorney General
PAUL A. HOLCOMBE, III
Asst District Attorney General
Rutherford County Judicial Bldg.
Third Floor
Murfreesboro, TN 37130
Judge:WOODALL
First Paragraph:
The Defendant, Robert Chadwell Brothers, was convicted of assault
following a jury trial in the Rutherford County Circuit Court. He was
sentenced to serve eleven (11) months and twenty-nine (29) days,
suspended after service of ninety (90) days in the workhouse. The
court also ordered Defendant to pay restitution to the victim in the
amount of $2,124.10. In his appeal as of right, Defendant argues two
issues: (1) the trial court erred by failing to grant Defendant a new
trial based upon the State's failure to comply with Defendant's
discovery request and (2) the trial court erred by not reducing the
amount of restitution ordered at the sentencing hearing. We affirm
the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/brothers_opn.WP6
DANIEL THOMAS HILL
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Daniel Thomas Hill, Pro Se John Knox Walkup
#105808 Atty General & Reporter
MCRCF
Box 200 Clinton J. Morgan
Wartburg, TN 37887 Counsel for the State
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
Roger Moore
Asst District Attorney General
Washington Square, Suite 500
222-2nd Avenue North
Nashville, TN 37201-1649
Judge:SUMMERS
First Paragraph:
The appellant, Daniel Thomas Hill, pled guilty to aggravated rape and
armed robbery on September 30, 1985. On August 27, 1996 he filed a
pro se petition for post-conviction relief, alleging six grounds for
relief. On October 30, 1996 the trial court entered an order
dismissing the petition, finding that grounds one through five in the
petition were time barred and that issue six, regarding a defective
indictment, was without merit.
URL:http://www.tba.org/tba_files/TCCA/hilldant_opn.WP6
STATE OF TENNESSEE
VS.
GARY LOUIS MIGGIO
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Peter D. Heil, Attorney John Knox Walkup
P.O. Box 40651 Attorney General and Reporter
Nashville, TN 37204
(on appeal) Daryl J. Brand
Assistant Attorney General
David E. Brandon, Attorney Criminal Justice Division
211 Third Avenue North 450 James Robertson Parkway
Nashville, TN 37201 Nashville, TN 37243-0493
(at trial and on appeal)
Jim Milam
Asst District Attorney General
Washington Sq. Bldg, Ste 500
222 Second Avenue North
Nashville, TN 37201-1649
Judge:WADE
First Paragraph:
The defendant, Gary Louis Miggio, entered a plea of guilt to driving
under the influence of an intoxicant, first offense. The trial court
imposed a sentence of eleven months and twenty-nine days and suspended
all but four days, which were to be served in jail. There was a
$250.00 fine. The defendant reserved the right to appeal a certified
question of law. Tenn. R. Crim. P. 37(b)(2).
URL:http://www.tba.org/tba_files/TCCA/miggiogl_opn.WP6
CURTIS ANTHONY MILLER
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Jennie L. Brown John Knox Walkup
229 Summit Ridge Drive Attorney General & Reporter
Nashville, TN 37215
Clinton J. Morgan
Counsel for the State
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
Roger Moore
Asst District Atty General
Washington Square, Suite 500
222-2nd Avenue North
Nashville, TN 37201-1649
Judge:SUMMERS
First Paragraph:
The appellant, Curtis Anthony Miller, appeals the denial of post
conviction relief. He was convicted of second degree murder in
February 1993 and was sentenced to twenty years in prison. This Court
affirmed his conviction in June 1994. In this post-conviction
petition, the appellant's sole issue is that he was denied effective
assistance of counsel. An evidentiary hearing was held on August 23,
1996, and the appellant was denied post-conviction relief. We affirm.
URL:http://www.tba.org/tba_files/TCCA/millerca_opn.WP6
STATE OF TENNESSEE
VS.
ANTHONY TURNER
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
CAMPBELL SMOOT JOHN KNOX WALKUP
Public Defender Attorney General and Reporter
RACHEL E. WILLIS GEORGIA BLYTHE FELNER
Assistant Public Defender Assistant Attorney General
605 East Carroll Street 425 5th Avenue North
P.O. Box 260 Nashville, TN 37243
Tullahoma, TN 37388
C. MICHAEL LAYNE
District Attorney General
STEPHEN WEITZMAN
Asst District Attorney General
Manchester, TN 37355
Judge:WELLES
First Paragraph:
The Defendant appeals as of right from the judgment of the trial court
which found him to be in violation of the terms of his community
corrections sentence and ordered that the balance of his six-year
sentence be served in the Department of Correction. The Defendant
argues that the trial judge abused his discretion in ordering that the
remainder of the Defendant's sentence be served in the Department of
Correction. We disagree and affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/turnera_opn.WP6
STATE OF TENNESSEE
VS.
VENSON EARL WOODARD
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
WILLIAM C. ROBERTS, JR. JOHN KNOX WALKUP
Suite 1502, Parkway Towers Attorney General and Reporter
Nashville, TN 37219
PETER M. COUGHLAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
MIKE MCCOWN
District Attorney General
ROBERT G. CRIGLER
Assistant District Attorney
One Public Square, Ste. 300
Shelbyville, TN 37206-4211
Judge:SMITH
First Paragraph:
A Bedford County Circuit Court jury found Appellant Venson Woodard
guilty of two counts of aggravated assault. As a Range II multiple
offender, he received a sentence of nine years and eight months in the
Tennessee Department of Correction. The trial court ordered the
sentence to be served consecutive to a sentence for which Appellant
was on parole at the time of the offense. In this appeal, Appellant
presents the following issue for review: whether the trial court
violated its duty to act as a thirteenth juror by refusing to grant
Appellant's motion for a new trial. Specifically Appellant maintains
the weight of the evidence shows he was acting in self-defense.
URL:http://www.tba.org/tba_files/TCCA/woodardv_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 via e-mail?
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
© Copyright 1996-1997 Tennessee Bar Association - This Issue (IN THIS ORDER):