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TBALink Opinion-Flash
February 24, 1998 -- Volume #4 -- Number #036
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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- 04-New Opinons From TSC
- 00-New Opinons From TSC-Rules
- 00-New Opinons From TSC-Workers Comp Panel
- 00-New Opinons From TCA
- 05-New Opinons From TCCA
- 04-New Opinons From TSC
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George Dean
TBALink Chief Editor
GENEVA GRAHL vs. LILLIE DAVIS, GREGORY SCOTT JUDKINS and JEFFREY TODD JUDKINS Court:TSC Attorneys: For Appellant: For Appellees David R. Duggan Norman H. Newton DUGGAN & ANDERSON CRAWFORD, CRAWFORD & NEWTON Maryville, Tennessee Maryville, Tennessee J. Michael Garner Duncan V. Crawford NICHOLSON & GARNER CRAWFORD, CRAWFORD, & NEWTON Maryville, Tennessee Maryville, Tennessee John A. Walker, Jr. WALKER & WALKER, P.C. Knoxville, Tennessee Judge:DROWOTA First Paragraph: The primary issue in this appeal is whether the conservator, Geneva Grahl, breached her fiduciary duty to the deceased conservatee, Lillie Davis, by allowing the conservatee's husband, Omer Davis, to transact four certificates of deposit in which the conservatee had an interest and reinvest the funds into certificates of deposit held either solely in the name of Omer Davis or jointly in the name of Omer Davis and Geneva Grahl. After carefully considering the controlling authority, we have determined that Grahl breached her fiduciary duty by allowing Omer Davis to transact the accounts without first seeking court approval, and by dealing with the conservatee's property so as to eventually attain a personal benefit. Accordingly, we affirm the judgment of the Court of Appeals reversing the judgment of the trial court, and remand this case for further proceedings consistent with this opinion. URL:http://www.tba.org/tba_files/TSC/grahl_opn.WP6
STATE OF TENNESSEE
vs.
GREGORY JAY HOXIE
Court:TSC
Attorneys:
For Appellant: For Appellee:
Mark Stephens John Knox Walkup
Public Defender Attorney General & Reporter
Knoxville, Tennessee Nashville, Tennessee
Paula R. Voss Michael E. Moore
Assistant Public Defender Solicitor General
Knoxville, Tennessee Nashville, Tennessee
(Appeal Only)
Daryl J. Brand
Timothy M. McLaughlin Assistant Attorney General
AND Nashville, Tennessee
John Halstead
Assistant Public Defenders Randall Nichols
Knoxville, Tennessee District Attorney General
Knoxville, Tennessee
Marsha Selecman
Asst District Attorney General
Knoxville, Tennessee
Judge:DROWOTA
First Paragraph:
The Knox County Grand Jury returned an indictment charging the
defendant, Gregory Jay Hoxie, with one count of felony stalking, one
count of misdemeanor stalking, and two counts of misdemeanor telephone
harassment. Count one, felony stalking, alleged that the defendant
had stalked the victim, Suzette Hoxie, from June through October,
1994, in violation of an order of protection. Count two, misdemeanor
stalking, alleged that the defendant had stalked the victim from
January to June, 1994. Count three alleged that the defendant had
harassed the victim by making threatening telephone calls. Count four
charged that the defendant had harassed the victim by placing
telephone calls "in an offensively repetitious manner and without a
legitimate purpose of communication." The State introduced evidence
of numerous incidents in support of its prosecution of felony and
misdemeanor stalking. At the close of the proof, the jury returned a
verdict of guilty on count one, felony stalking, count two,
misdemeanor stalking, and count four, "offensively repetitious"
telephone harassment. The jury found the defendant not guilty of
count three, harassment by telephone threat.
URL:http://www.tba.org/tba_files/TSC/hoxiegj_opn.WP6
STATE OF TENNESSEE
vs.
DOUGLAS BRIAN IRWIN
Court:TSC
Attorneys:
APPELLANT FOR APPELLEE:
Gerald C. Russell John Knox Walkup
125 E. Broadway Attorney General & Reporter
Maryville, Tennessee
Michael E. Moore
Solicitor General
Kathy M. Yacuzzo
Assistant Attorney General
425 Fifth Avenue, North
Nashville, Tennessee
Michael Flynn
District Attorney General
5th Judicial District
Maryville, Tennessee
Edward P. Bailey
Asst District Attorney General
Maryville, Tennessee
Judge:DROWOTA
First Paragraph:
On June 7, 1993, the defendant was charged in a one count indictment
with contributing to the delinquency of a minor in violation of Tenn.
Code Ann. S 37-1-156 (1996 Repl. & Supp. 1997).
URL:http://www.tba.org/tba_files/TSC/irwindb_opn.WP6
STATE OF TENNESSEE
vs.
GRAPEL SIMPSON
Court:TSC
Attorneys:
For Plaintiff-Appellee: For Defendant-Appellant:
John Knox Walkup Lloyd R. Tatum
Attorney General & Reporter Tatum & Tatum
Nashville, Tennessee Tatum Building
Henderson, Tennessee
Michael E. Moore
Solicitor General
Nashville, Tennessee
Kenneth W. Rucker
Assistant Attorney General
Nashville, Tennessee
Elizabeth T. Rice
District Attorney General
Twenty-Fifth Judicial District
Somerville, Tennessee
Ed McDaniel
Assistant District Attorney General
Selmer, Tennessee
Judge:DROWOTA
First Paragraph:
Based on a confidential informant's tip, police stopped the
defendant's vehicle. A consensual search of her person revealed
drugs. The issue in this appeal is whether the tip, as corroborated
by independent police work, exhibited sufficient indicia of
reliability to satisfy the two-pronged constitutional test of
reliability and provide reasonable suspicion to justify the
investigatory stop. We hold that it did and therefore affirm the
judgment of the Court of Criminal Appeals upholding the trial court's
denial of the defendant's motion to suppress.
URL:http://www.tba.org/tba_files/TSC/simpsong_opn.WP6
LUTCHER EIDSON
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Geoffrey Coston John Knox Walkup
2813 West End Ave. Attorney General of Tennessee
Nashville, TN 37203 and
Clinton J. Morgan
Asst Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
and
John Zimmerman
James Sledge
Asst District Attorneys General
Washington Square
222 2nd Avenue North
Nashville, TN 37201-1649
Judge:Tipton
First Paragraph:
The petitioner, Lutcher Eidson, appeals as of right from the denial of
his petition for post-conviction relief by the Davidson County
Criminal Court relative to his 1989 convictions for two counts of
assault with intent to commit first degree murder, one of which
resulted in bodily injury. The convictions were affirmed on appeal.
State v. Lutcher Eidson, No. 01C01-9004-CR-00097, Davidson County
(Tenn. Crim. App. Dec. 12, 1990), app. denied (Tenn. Feb. 25, 1991).
He is presently in the custody of the Department of Correction serving
an effective sentence of forty-five years as a Range II, persistent
offender. The petitioner contends that the trial court erred in
concluding that he received the effective assistance of counsel at his
trial. We disagree.
URL:http://www.tba.org/tba_files/TCCA/eidsonl_opn.WP6
CHARLES MICHAEL GENTRY
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
BOB LYNCH, JR. JOHN KNOX WALKUP
Suite 316, Washington Square Attorney General and Reporter
222 Second Avenue North
Nashville TN 37201 ELLEN H. POLLACK
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
VICTOR S. JOHNSON
District Attorney General
STEVE DOZIER
Asst District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201-1649
Judge:WELLES
First Paragraph:
The Petitioner, Charles Michael Gentry, appeals as of right pursuant
to Rule 3 of the Tennessee Rules of Appellate Procedure from the trial
court's denial of his petition for post-conviction relief. On May 9,
1996, the Petitioner filed a motion to reopen his first petition for
post-conviction relief, claiming that the "reasonable doubt" jury
instruction charged at his trial was unconstitutional. In his motion
to reopen, he asserted that his claim was based on the violation of a
constitutional right not recognized as existing at the time of his
trial. See Tenn. Code Ann. S 40-30-217(a)(1). The trial court
granted the motion to reopen and considered the Petitioner's claim on
its merits. On October 29, 1996, the trial court issued an order
denying the petition. We affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/gentrycm_opn.WP6
STATE OF TENNESSEE
vs.
LANDY G. KASH
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JACKY O. BELLAR JOHN KNOX WALKUP
BELLAR & BELLAR Attorney General & Reporter
212 Main Street
P.O. Box 332 CLINTON J. MORGAN
Carthage, TN 37030 Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
TOM P. THOMPSON, JR.
District Attorney General
H. DOUGLAS HALL
Asst District Attorney General
111 Cherry Street
Lebanon, TN 37087-3609
Judge:WOODALL
First Paragraph:
After being convicted of DUI, third offense, and driving on a revoked
license following a jury trial, the Defendant, Landy G. Kash, filed a
Motion for New Trial on December 12, 1996. There is no order in the
record either granting or denying that motion. There is a handwritten
notation on the motion that it was overruled, but the judge's
signature does not appear in the notation. However, for an order to
be valid, it must be in writing and it must be entered in the court's
minutes. See Evans v. Perkey, 647 S.W.2d 636, 641 (Tenn. App. 1982);
Welch v. State, 553 S.W.2d 917, 919-20 (Tenn. Crim. App. 1977). The
time for appeal runs from the entry of a proper order denying a new
trial. Tenn. R. App. P. 4(c).
URL:http://www.tba.org/tba_files/TCCA/kashlg_opn.WP6
STATE OF TENNESSEE
vs.
TIMOTHY DEAN MARTIN
Court:TCCA
Attorneys:FOR THE APPELLANT: FOR THE APPELLEE:
Andrew J. Dearing, III John Knox Walkup
Attorney at Law Attorney General & Reporter
117 South Main Street 425 Fifth Avenue, North
Shelbyville, TN 37160 Nashville, TN 37243
Clinton J. Morgan
Counsel for the State
425 Fifth Avenue, North
Nashville, TN 37243
W. Michael McCown
District Attorney General
215 East College Street
Fayetteville, TN 37334
Weakley E. Barnard
Asst District Attorney General
Marshall County Courthouse, Rm 407
Lewisburg, TN 37091
Judge:Jones
First Paragraph:
The appellant, Timothy Dean Martin (defendant), was convicted of
vehicular homicide, a Class C felony, and aggravated assault, also a
Class C felony, by a jury of his peers. The trial court found the
defendant was a standard offender and imposed the following Range I
sentences: (a) for vehicular homicide, a $5,000 fine and confinement
for four (4) years and eight (8) months in the Department of
Correction, and (b) for aggravated assault, a $5,000 fine and
confinement for three (3) years and four (4) months in the Department
of Correction. The sentences are to be served concurrently for an
effective sentence of confinement for four (4) years and eight (8)
months in the Department of Correction and fines totaling $10,000.
Five issues are presented for review. The defendant contends (a) the
evidence is insufficient, as a matter of law, to support his
convictions; (b) the State of Tennessee (state) acted in bad faith
thereby denying him a fair trial; (c) the trial court erred in
allowing an expert to offer an opinion based upon data gathered by
another individual; (d) the trial court erred by refusing to charge
the jury on the failure of one of the victims to wear a seat belt; and
(e) the sentences imposed by the trial court are excessive. After a
thorough review of the record, the briefs submitted by the parties,
and the law governing the issues 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/martintd_opn.WP6
STATE OF TENNESSEE
vs.
ANTHONY JASON MERLO
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Andrew Jackson Dearing, III John Knox Walkup
117 South Main Street Attorney General of Tennessee
Shelbyville, TN 37160 and
Ellen H. Pollack
Asst Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
William Michael McCown
District Attorney General
215 College Street
P.O. Box 904
Fayetteville, TN 37334
and
Robert Crigler
Asst District Attorney General
One Public Square
Shelbyville, TN 37160
Judge:Tipton
First Paragraph:
The defendant, Anthony Jason Merlo, appeals as of right from his
convictions by a jury in the Bedford County Circuit Court for two
counts of aggravated burglary, a Class C felony, theft of property
valued over five hundred dollars but less than one thousand dollars, a
Class E felony, and theft of property valued five hundred dollars or
less, a Class A misdemeanor. The defendant was sentenced as a Range
I, standard offender to five years and four months in the custody of
the Department of Correction and fined ten thousand dollars for each
aggravated burglary conviction. For the felony theft of property
conviction, the trial court imposed a Range I sentence of three years
and six months in the custody of the Department of Correction and a
three- thousand-dollar fine. The trial court also sentenced the
defendant to eleven months and twenty-nine days and imposed a fine of
two thousand five hundred dollars for the misdemeanor theft
conviction. The court ordered the defendant to serve his aggravated
burglary convictions consecutive to each other for an effective
sentence of ten years and eight months. The defendant contends that
(1) the evidence is insufficient to support his convictions and (2)
the trial court erred by ordering consecutive sentences. We disagree
and affirm the trial court's judgments of conviction.
URL:http://www.tba.org/tba_files/TCCA/merloaj_opn.WP6
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