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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- 08-New Opinons From TCCA
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DENNIS O'NEIL MILLIGAN vs. TEN-STATE, INC. Court:TSC - Workers Comp Panel Attorneys: FOR APPELLANT: FOR APPELLEE: William F. Kendall, III Keith S. Carlton Waldrop & Hall, P.A. Wood & Carlton Jackson, Tennessee Corinth, Mississippi Judge:Lanier First Paragraph: On or about July 9, 1993, while employed by the defendant, the claimant was attempting to move a mobile home with the assistance of fellow employees when his foot slipped and he was caused to twist and fall to his knee. He felt a burning sensation in his lower back shortly thereafter and reported this to his supervisor. The company referred him to a Dr. Howard Thomas, who in turn referred him to Dr. R. J. Hornsby. In the course of his examinations and treatments by these physicians, he underwent not only an MRI, an EMG and nerve conduction study, but also an epidural block and myelogram, which gave him a severe spinal headache. Because he continued to complain of pain in the low back upon examination, he was also evaluated by a physical therapist, who reported, ". . . he was totally inconsistent in every test and no impairment was noted that was consistent." (Notes of Dr. Hornsby). URL:http://www.tba.org/tba_files/TSC_WCP/millignd_opn.WP6 MAURICE DeVORE vs. DELOITTE & TOUCHE Court:TCA Attorneys: For Plaintiff/Appellant: For Defendant/Appellee: Susan S. Garner William S. Walton Robert J. Turner John S. Lewis TURNER LAW OFFICES GIDEON & WISEMAN Nashville, Tennessee Nashville, Tennessee Judge:KOCH First Paragraph: This appeal involves an employment discrimination action filed by a computer programmer who was discharged by a large national accounting firm because of inadequate performance. The programmer filed suit in the Chancery Court for Davidson County alleging that his former employer had terminated him because of his race and because he had filed a discrimination charge with the Equal Employment Opportunity Commission. The trial court granted the employer's motion for summary judgment, and the programmer appealed to this court. We have determined that the programmer has failed to demonstrate that he will be able to produce competent, admissible evidence concerning essential elements of his claims and, therefore, affirm the summary judgment. URL:http://www.tba.org/tba_files/TCA/devorem_opn.WP6 JAMES DILLARD and wife, THELMA DILLARD vs. THE VANDERBILT UNIVERSITY and CENTRAL PARKING SYSTEM, INC. Court:TCA Attorneys: For Plaintiffs/Appellants: For Defendants/Appellees: Anthony E. Hagan Joseph F. Welborn, III Lebanon, Tennessee Bass, Berry & Sims Nashville, Tennessee Judge:KOCH First Paragraph: This appeal concerns a woman who was injured when she tripped over a brightly painted concrete tire stop in a hospital parking garage. The woman and her husband filed a negligence action in the Circuit Court for Davidson County against the owner and operator of the parking garage. The trial court granted the defendants' motion for summary judgment, and the plaintiffs have appealed. We affirm the summary judgment because the defendants did not have a duty to protect patrons from the tire stop. URL:http://www.tba.org/tba_files/TCA/dillardj_opn.WP6 CINDY DOOLEY (BLALOCK) vs. JOHN R. DOOLEY Court:TCA Attorneys: Thomas D. Frost, Murfreesboro, Tennessee Attorney for Defendant/Appellant. Jim Wiseman, WISEMAN & SCHNEIDER, Murfreesboro, Tennessee Attorney for Plaintiff/Appellee. Judge:FARMER First Paragraph: John R. Dooley (Father) appeals from the order of the trial court finding him in contempt of court for nonpayment of child support pursuant to an Indiana divorce decree terminating his marriage to Cindy Dooley (Blalock) (Mother). The order also addresses reimbursement for medical expenses, payment of future medical bills, an increase in child support, a wage assignment and an award of attorney's fees. Father contends that the trial court's order should be set aside because that court did not have personal jurisdiction over him. URL:http://www.tba.org/tba_files/TCA/dooleyci_opn.WP6 DAVID JOHN ERDLY vs. JANENE MARIE ERDLY Court:TCA Attorneys: R. E. Lee Davies HARTZOG, SILVA & DAVIES 123 Fifth Avenue, North P.O. Box 664 Franklin, TN 37065-0664 ATTORNEY FOR PLAINTIFF/APPELLANT Virginia Lee Story JOHNSTON, STORY, ALLEN & ABERNATHY 136 Fourth Avenue, South P.O. Box 1608 Franklin, TN 37065-1608 ATTORNEY FOR DEFENDANT/APPELLEE Judge:TODD First Paragraph: The plaintiff, David John Erdly, has appealed from the judgment of the Trial Court dismissing his suit for divorce, dividing the marital estate, awarding plaintiff child custody and support and awarding the defendant, Janene Marie Erdly, alimony for the remainder of her life. URL:http://www.tba.org/tba_files/TCA/erdlydj_opn.WP6 JAMES DANIEL GEYER, JR. vs. KATHLEEN HELEN GEYER Court:TCA Attorneys: JOSEPH E. FORD McBEE & FORD 17 So. College Street Winchester, Tennessee 37398 Attorney for Plaintiff/Appellant ROBERT F. HAZARD COPELAND, CONLEY & HAZARD 111 West Grundy Street P. O. Box 176 Tullahoma, Tennessee 37388 Attorney for Defendant/Appellee Judge:CANTRELL First Paragraph: This case arises from the divorce of James Geyer (the Husband) and Kathleen Geyer (the Wife). The trial court decreed the parties divorced and awarded custody of their minor child to the Wife. In addition, the court ordered that the Wife be designated the custodian of an account which was the sole property of the child. The Husband has brought this appeal before the Court of Appeals. URL:http://www.tba.org/tba_files/TCA/geyerjd_opn.WP6 THOMAS W. HARRISON, TERRY HARRISON, and BRENDA KENNAMORE vs. EARL LAURSEN and DOLORITA LAURSEN Court:TCA Attorneys: For Plaintiffs/Appellees: For Defendants/Appellants: M. Andrew Hoover John S. Colley, III ANDREW HOOVER & ASSOCIATES COLLEY & COLLEY Pulaski, Tennessee Columbia, Tennessee Judge:KOCH First Paragraph: This appeal stems from a contractual dispute over the sale of a 128-acre farm in Giles County. The sellers filed suit in the Chancery Court for Giles County alleging that the buyers had breached their contract by defaulting on their payments. The buyers counterclaimed that the sellers had breached the contract by failing to provide city water for the property. The trial court, sitting without a jury, rescinded the contract, awarded the sellers their unpaid interest as well as the buyers' previous payments, and dismissed the buyers' counterclaim. This court reversed the damages portion of the judgment and remanded the case for another trial on the issue of damages only. The case has been tried four additional times since that appeal. The buyers have now appealed to this court for the third time following a $32,901.54 jury verdict for the sellers in the fifth trial. We have determined that the judgments against the buyers must again be vacated because the trial court erroneously refused to permit one of the buyers, who was representing himself, to testify and because the judgment against the other buyer was reversed by this court on the second appeal. URL:http://www.tba.org/tba_files/TCA/harisont_opn.WP6 CURTIS LANDRY, JR., d/b/a LANDRY AND ASSOCIATES vs. JOHN DANIEL RUDD Court:TCA Attorneys: Stephen W. Pate 218 West Main Street Suite One Murfreesboro, TN 37130 ATTORNEY FOR PLAINTIFF/APPELLEE William Kennerly Burger 301 North Spring Street Murfreesboro, TN 37133-0398 ATTORNEY FOR DEFENDANT/APPELLANT Judge:TODD First Paragraph: The defendant, John Daniel Rudd, has appealed from a judgment of the Trial Court allowing the enrollment of two foreign judgments, both in favor of the plaintiff, John Landry and against the defendant. URL:http://www.tba.org/tba_files/TCA/landrycl_opn.WP6 URL:http://www.tba.org/tba_files/TCA/landry_con.WP6 RESIDENTS AGAINST INDUSTRIAL LANDFILL EXPANSION, INC. vs. TENNESSEE DEPARTMENT OF ENVIRONMENT AND CONSERVATION and DIVERSIFIED SYSTEMS, INC. Court:TCA Attorneys: For Residents Against Industrial For the Dept. of Environment Landfill Expansion, Inc.: and Conservation: Gary A. Davis John Knox Walkup Knoxville, Tennessee Attorney General and Reporter Barry Turner Deputy Attorney General For Diversified Systems, Inc.: R. Louis Crossley, Jr. Knoxville, Tennessee Judge:KOCH First Paragraph: This appeal involves a dispute over a decision by the Tennessee Department of Environment and Conservation to grant a solid waste disposal permit to expand an existing industrial waste landfill in McMinn County. A nonprofit corporation whose members reside near the landfill filed a petition for common law writ of certiorari in the Chancery Court for Davidson County challenging the permitting decision, and the Department moved to dismiss the petition on the ground that it was not timely. The trial court declined to dismiss the petition but also declined to set aside the Department's decision to grant the permit. On this appeal, the opponents of the landfill expansion take issue with the permitting procedures and with the evidentiary foundation of the Department's decision, and the Department asserts that the petition should have been dismissed because it was not timely filed. Since we have determined that the landfill's opponents did not timely file their petition, we reverse the order denying the motion to dismiss without addressing the opponents' substantive challenges to the Department's permitting decision. URL:http://www.tba.org/tba_files/TCA/resaile_opn.WP6 BOBBY ROBERSON vs. MARTHA BRASFIELD, Commr., et al. Court:TCA Attorneys: BOBBY ROBERSON, pro se Henning, Tennessee JOHN KNOX WALKUP Attorney General & Reporter STEVEN A. HART Special Counsel Nashville, Tennessee Attorney for Appellee Judge:HIGHERS First Paragraph: Plaintiff, Bobby Roberson ("Roberson"), appeals the order of the trial court granting the motion of Defendants, Martha Brasfield, Commissioner of the Tennessee Claims Commission ("Commissioner"); Jimmy Harrison, Warden of Cold Creek Correctional Facility ("C.C.C.F."); and Roy Kelly, correctional officer at C.C.C.F., to dismiss the action under Tennessee Rule of Civil Procedure 12.02 for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction. Roberson appeals the trial court's judgment. For reasons stated hereinafter, we affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCA/robersnb.opn WILLIAM JEFFREY TARKINGTON vs. REBECCA JUANITA TARKINGTON Court:TCA Judge:TODD First Paragraph: The appellant has filed a respectful petition to rehear which has been duly considered and is respectfully denied. URL:http://www.tba.org/tba_files/TCA/tarkingt_ord.WP6 VENTURE EXPRESS, INC. vs. MICHAEL E. ZILLY, Ind., ZILLY TRANSPORTATION SERVICES, INC., and ZILLY SERVICES, LLC Court:TCA Attorneys: W. LEE CORBETT DAVID F. LEWIS CORBETT CROCKETT & LECKRONE Nashville, Tennessee Attorneys for Appellants DAVID W. KIOUS Murfreesboro, Tennessee Attorney for Appellee Judge:HIGHERS First Paragraph: Defendants Michael E. Zilly, Zilly Transportation Services, Inc., and Zilly Transportation Services, LLC, appeal the trial court's judgment awarding $78,000 to Plaintiff/Appellee Venture Express, Inc. We reverse the judgment because we conclude that the evidence does not support the trial court's ruling that Zilly breached his fiduciary duty to Venture Express. URL:http://www.tba.org/tba_files/TCA/venture_opn.WP6 FREDERICK A. BUTLER vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: GARLAND ERGUDEN JOHN KNOX WALKUP 242 Poplar Avenue Attorney General & Reporter Memphis, TN 38103 JANIS L. TURNER Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 JOHN W. PIEROTTI District Attorney General PAUL GOODMAN Assistant District Attorney General 201 Poplar Avenue - Third Floor Memphis, TN 38103 Judge:WOODALL First Paragraph: The Appellant, Frederick A. Butler, appeals as of right from the trial court's dismissal of his petition for post-conviction relief following an evidentiary hearing. The issue presented for review, as stated in Appellant's brief, is as follows: "The trial judge erred in finding that Petitioner's guilty plea was knowing and voluntary and not the product of ineffective assistance of counsel." After a review of the entire record on appeal, the arguments of counsel, and the applicable law, we affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/butlerfa.opn STATE OF TENNESSEE vs. ELIZABETH R. CAMPBELL Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Donald E. Spurrell John Knox Walkup Attorney at Law Attorney General & Reporter 128 East Market Street 500 Charlotte Avenue Johnson City, TN 37604 Nashville, TN 37343-0497 (Trial and Appeal) Peter M. Coughlan Stacey L. Street Assistant Attorney General Attorney at Law 450 James Robertson Parkway 630 Elk Avenue Nashville, TN 37243-0493 Elizabethton, TN 37643 (Trial Only) David E. Crockett District Attorney General Route 1, Box 99 Johnson City, TN 37641 Kenneth C. Baldwin Asst District Attorney General Carter County Courthouse Annex Elizabethton, TN 37643 Steven R. Finney Asst District Attorney General Carter County Courthouse Annex Elizabethton, TN 37643 Judge:Jones First Paragraph: The appellant, Elizabeth R. Campbell (defendant), was convicted of criminally negligent homicide, a Class E felony, by a jury of her peers. The trial court, finding the defendant to be a standard offender, imposed a Range I sentence consisting of a $3,000 fine and confinement for one (1) year in the Department of Correction. In this court, the defendant contends the trial court should have suspended her sentence and placed her on probation or imposed some form of alternative sentence. 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/cmpbler_opn.WP6 STATE OF TENNESSEE vs. MATTIE MARCELLA DAVIS, aka MATTIE HILL Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Hershell D. Koger John Knox Walkup Attorney at Law Attorney General & Reporter P.O. Box 1148 425 Fifth Avenue, North Pulaski, TN 38478 Nashville, TN 37243-0497 Georgia B. Felner Counsel for the State 450 James Robertson Parkway Nashville, TN 37243-0493 W. Michael McCown District Attorney General P. O. Box 904 Fayetteville, TN 37334 Weakley E. Barnard Assistant District Attorney General Marshall County Courthouse, Fourth Floor Lewisburg, TN 37091 Judge:Jones First Paragraph: The appellant, Mattie Marcella Davis, also known as Mattie Hill (defendant), was convicted of theft over the value of $1,000, a Class D felony, following her plea of guilty to this offense. The trial court found the defendant was a standard offender and imposed a Range I sentence consisting of confinement for twenty-five (25) months in the Department of Correction pursuant to a plea agreement. In this court, the defendant contends the trial court abused its discretion by refusing to impose an alternative sentence. 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 pursuant to Rule 20, Tennessee Court of Criminal Appeals. URL:http://www.tba.org/tba_files/TCCA/davismm_opn.WP6 Franko D. Fykes vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Franko Donell Fykes,Pro Se John Knox Walkup TDOC No. 109999 Attorney General and Reporter Cold Creek Correctional Facility P.O. Box 1000 Henning, TN 38041-1000 Lisa A. Naylor Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243 Victor S. Johnson District Attorney General Nick Bailey Assistant District Attorney Washington Square, Ste 500 Nashville, TN 37201-1649 Judge:SMITH First Paragraph: In this appeal of the summary dismissal of his post-conviction petition Appellant, Franko Donell Fykes, asks this Court to review the validity of his conviction entered upon his pleas of guilty on March 20, 1986. Appellant pled guilty to aggravated rape and burglary of an automobile. As part of the plea agreement Appellant received sentences totaling forty-four years. URL:http://www.tba.org/tba_files/TCCA/fykesfr_opn.WP6 STATE OF TENNESSEE vs. CHRISTOPHER DALE GIBBS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: LIONEL BARRETT JOHN KNOX WALKUP 222 Second Ave. N. Attorney General & Reporter Nashville, TN 37201 LISA A. NAYLOR Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 DAN MITCHUM ALSOBROOKS District Attorney General Court Square, P.O. Box 580 Charlotte, TN 37036-0580 JAMES W. KIRBY Asst District Attorney General 105 Sycamore St. Ashland City, TN 37015-1806 Judge:WITT First Paragraph: The defendant, Christopher Dale Gibbs, was convicted in a jury trial in the Cheatham County Circuit Court of vehicular homicide by reckless driving, a Class C felony. The defendant pleaded guilty to leaving the scene of an accident, a Class E felony. As a Range I, standard offender, he received a six-year sentence for vehicular homicide and a consecutive two-year sentence for leaving the scene. In this direct appeal, the defendant challenges the sufficiency of the evidence and contends that his sentences are excessive and that the trial judge erred in imposing consecutive sentences. URL:http://www.tba.org/tba_files/TCCA/gibbsc_opn.WP6 STATE OF TENNESSEE vs. JOHN H. HACKNEY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: L. GILBERT ANGLIN JOHN KNOX WALKUP 8 Lincoln Square Attorney General & Reporter 1535 West Northfield Blvd. Murfreesboro, TN 37129 KAREN M. YACUZZO Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 WILLIAM C. WHITESELL District Attorney General JOHN W. PRICE, III Asst District Attorney General 303 Rutherford County Judicial Bldg. Murfreesboro, TN 37130 Judge:WOODALL First Paragraph: The Defendant, John Harold Hackney, appeals as of right his conviction of first offense DUI following a jury trial in the Circuit Court of Rutherford County. The trial court sentenced Defendant to eleven (11) months and twenty-nine (29) days, with all but four (4) days suspended. In this appeal, Defendant argues that the trial court erred in not suppressing the results of his Intoximeter 3000 test because he was not observed for the requisite twenty minute period prior to administration of the test. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/hacknyjh_opn.WP6 STATE OF TENNESSEE vs. MICHAEL D. HARVEY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: J. Colin Morris John Knox Walkup Attorney at Law Attorney General & Reporter 204 West Baltimore P.O. Box 1623 Janis L. Turner Jackson, TN 38302-1623 Counsel for the State Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 Jerry Woodall District Attorney General Donald H. Allen Asst District Attorney General State Office Building, Suite 201-A P.O. Box 2825 Jackson, TN 38302 Judge:SUMMERS First Paragraph: The appellant, Michael D. Harvey, pled guilty to two counts of aggravated burglary, theft of property over $1000, and theft of property under $500. In September 1996 the trial court sentenced the defendant as a Range I, standard offender, to six years for each count of the aggravated burglary, four years for the theft of property over $1000, and eleven months and twenty-nine days for the theft of property under $500. All of the appellant's sentences were to run concurrently. URL:http://www.tba.org/tba_files/TCCA/harveymd.opn STATE OF TENNESSEE vs. EDWARD EARL HUDDLESTON Court:TCCA Attorneys: For the Appellant: For the Appellee: C. Michael Robbins John Knox Walkup 3074 East Street Attorney General and Reporter Memphis, TN 38128 Elizabeth T. Ryan (ON APPEAL) Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Tom W. Crider Nashville, TN 37243 0493 District Public Defender 107 South Court Square Trenton, TN 38382 Clayburn Peeples, Jr. District Attorney General (AT TRIAL) 110 South College Street Suite 200 Trenton, TN 38382 Judge:Hayes First Paragraph: The appellant, Edward Earl Huddleston, appeals his jury conviction for rape of a child, a class A felony. The trial court sentenced the appellant to the presumptive sentence of twenty years in the Tennessee Department of Correction. On appeal, the appellant first contends that the trial court erred in finding the eight year old victim competent to testify against him. Second, he asserts that the trial court erred when it failed to find as a mitigating factor that the appellant neither caused nor threatened to cause the victim serious bodily injury. URL:http://www.tba.org/tba_files/TCCA/hudlstne.opn
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