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TBALink Opinion-Flash
March 23, 1998 -- Volume #4 -- Number #053
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
WAYNE LEE AND C. EDDIE SHOFFNER vs. ROBERT TUTTLE, JAMES K. LOOPE, ELEANOR Y. BREEDING, STEWART COLLINGSWORTH, and BETTY MANNING and BILLY RAY CHEEK and BRUCE SEAL Court:TSC Attorneys: FOR DEFENDANTS/APPELLANTS: A. Benjamin Strand, Jr. Dandridge FOR APPELLEE LEE: FOR APPELLEE SHOFFNER: Michael G. Hatmaker Mark C. Travis Jacksboro Morristown Judge:HOLDER First Paragraph: This is an election contest alleging irregularities or mistakes in vote counting in the 1994 election for Claiborne County Sheriff and Circuit Court Clerk. The issue with which we are confronted is whether votes shall be recounted when contestants allege that irregularities in vote tallying caused their defeat. The Court of Appeals ordered a recount pursuant to Blackwood v. Hollingsworth, 195 Tenn. 427, 260 S.W.2d 164 (1953). Upon review, we reverse. We distinguish the present case from Blackwood on the basis that Blackwood dealt with fraud and not mere irregularities or honest mistakes. We hold that the plaintiffs are not entitled to relief as they have neither shown fraud nor to a mathematical certainty that but for the irregularities they would have been victorious. URL:http://www.tba.org/tba_files/TSC/leewayne_opn.WP6
SHEILA FAYE HAGEN MCCALL BARNETT
vs.
RONALD EDWARD BARNETT, SR.
Court:TCA
Attorneys:
Jack Norman, Jr. of Nashville
Thomas F. Bloom of Nashville
For Appellee
Clark Lee Shaw of Nashville
Larry Houston Hagar of Nashville
For Appellant
Judge:CRAWFORD
First Paragraph:
Plaintiff, Sheila Faye Hagen McCall Barnett (Wife), and defendant,
Ronald Edward Barnett, Sr. (Husband), were divorced by decree entered
January 9, 1997. Husband appeals and presents issues concerning
property division, alimony, and attorney's fees.
URL:http://www.tba.org/tba_files/TCA/barnsh_opn.WP6
CUSTOM BUILT HOMES
vs.
G. S. HINSEN COMPANY, INC.
Court:TCA
Attorneys:
For the Plaintiff/Appellee: For the Defendant/Appellant:
Robert H. Plummer, Jr. Phillip B. Jones
Franklin, Tennessee EVANS, JONES & REYNOLDS
Nashville, Tennessee
Judge:KOCH
First Paragraph:
This appeal arises out of a dispute over the workmanship of
residential renovations. The interior designer hired by the owner to
undertake the renovations withheld final payment to the contractor who
performed the work because the owner was dissatisfied with the
renovations. After the contractor obtained a judgment against the
interior designer in the Williamson County General Sessions Court, the
interior designer perfected an appeal to the Circuit Court for
Williamson County and filed a counterclaim against the contractor.
Following a bench trial, the trial court dismissed the interior
designer's claims against the contractor and entered a judgment
against the interior designer for the remaining balance of the
construction contract. The interior designer has appealed. While the
trial court erroneously concluded that the Contractor's Licensing Act
of 1976 prevented the interior designer from pursuing its claims
against the contractor, we have concluded that the trial court reached
the proper result. Accordingly, we affirm the judgment.
URL:http://www.tba.org/tba_files/TCA/custmblt_opn.WP6
JOHN JAY HOOKER
vs.
SEN. FRED D. THOMPSON
and
JOHN JAY HOOKER
vs.
DON SUNDQUIST, ET AL.
Court:TCA
Judge:TODD
First Paragraph:
The appellant has filed a respectful petition to rehear, which we have
considered and found to be without merit.
URL:http://www.tba.org/tba_files/TCA/hookerj_reh.WP6
STATE OF TENNESSEE,
DEPT. OF CHILDREN'S SERVICES
vs.
WINIFRED LYNN MOSS
Court:TCA
Attorneys:
J. MICHAEL O'NEIL
Nashville, Tennessee
Attorney for Appellant
JOHN KNOX WALKUP
Attorney General & Reporter
DOUGLASS EARL DIMOND
Assistant Attorney General
Nashville, Tennessee
Attorneys for Appellee
Judge:HIGHERS
First Paragraph:
Defendant/Appellant, Winifred Moss ("Moss"), appeals the judgment of
the trial court terminating his parental rights and in failing to
award custody of his children to a family member instead of foster
parents. Moss contends that because the termination proceeding was
performed without his presence, it was in violation of his due process
rights. We disagree and affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCA/mosswl_opn.WP6
STATE OF TENNESSEE, DEPARTMENT
OF CHILDREN'S SERVICES
vs.
AMY DIANE BOTTOMS and BRIAN
BOTTOMS, SR.
IN THE MATTER OF:
BRIAN SCOTT BOTTOMS, JR.
ISRAEL VAUGHN BOTTOMS
ELIJAH KEANE BOTTOMS
Court:TCA
Attorneys:
JOHN KNOX WALKUP
Attorney General and Reporter
DOUGLAS EARL DIMOND, BPR No. 17953
Assistant Attorney General
425 Fifth Avenue, South
Cordell Hull Building, 2nd Floor
Nashville, TN 37243-0499
ATTORNEY FOR PETITIONER/APPELLEE
LESLIE BARRETT KINKEAD, BPR No. 13299
P.O. Box 270683
Nashville, TN 37227-0683
ATTORNEY FOR RESPONDENT/APPELLANT, AMY DIANE BOTTOMS
J. MICHAEL O'NEAL, BPR No. 014654
P.O. BOX 60125
Nashville, TN 37206
ATTORNEY FOR RESPONDENT/APPELLANT, BRIAN SCOTT BOTTOMS, SR.
Judge:TODD
First Paragraph:
Brian Bottoms, Sr., and Amy Bottoms have appealed from the judgment of
the Juvenile Court, terminating their parental rights in respect to
Brian Scott Bottoms, aged 7, Israel Vaughn Bottoms, aged 5, and Elijah
Keane Bottoms, aged 2, and placing them in the legal guardianship of
AGAPE with the right to place them for adoption.
URL:http://www.tba.org/tba_files/TCA/statetn_opn.WP6
JIMMY WAYNE WILSON
JAMES T. FITE, VIVIEN TROY COOK,
DEWEY SCOTT FRAZIER, JERRY L.
CHILTON, PAUL CARRIER, ET AL.
vs.
STATE OF TENNESSEE, GOVERNOR
NED RAY McWHERTER, PAROLE
ELIGIBILITY REVIEW BOARD &
MEMBERS, JIM THRASHER,
JOHN S. WILDER, JIMMY NAIFEH,
AND CHARLES BURSON, ET AL.
Court:TCA
Judge:TODD
First Paragraph:
Jimmy Wayne Wilson has filed a pro se request for a rehearing,
claiming that this court's opinion of January 16, 1998 is in conflict
with well established principles of law. While Rule 39 of the Rules
of Appellate Procedure provides that an appeals court may grant a
rehearing in situations where "the court's opinion is in conflict with
a statute, prior decision, or other principle of law," Mr. Wilson has
not stated any principle of law nor cited any statute that would
require us to find that he is entitled to the relief he seeks.
URL:http://www.tba.org/tba_files/TCA/wilsnjw_reh.WP6
JENNIFER O. WILSON
vs.
LARRY ARNOLD WILSON
Court:TCA
Attorneys:
JOHN E. HERBISON, Nashville, Attorney for Plaintiff.
EARL J. PORTER, JR., Nashville, Attorney for Defendant.
Judge:TOMLIN
First Paragraph:
Jennifer O. Wilson ("plaintiff") filed suit for divorce against Larry
A. Wilson ("defendant") in the Circuit Court of Davidson County.
During the course of this litigation, certain restraining orders were
issued by the court. Thereafter, defendant filed a petition against
plaintiff for contempt. The petition failed to specify whether civil
or criminal sanctions were being sought. Plaintiff filed a
counterclaim for contempt against defendant.
URL:http://www.tba.org/tba_files/TCA/wilsojen_opn.WP6
RANDALL KEITH ATTAWAY
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
RANDALL KEITH ATTAWAY, JOHN KNOX WALKUP
PRO SE Attorney General & Reporter
M.C.R.C.F. P.O. Box 2000
Wartburg, TN 37887-2000 TIMOTHY F. BEHAN
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
CHARLES HAWK
District Attorney General
FRANK HARVEY
Asst District Attorney General
P.O. Box 703
Kingston, TN 37763
Judge:WITT
First Paragraph:
Randall Keith Attaway, the petitioner, appeals pursuant to Rule 3,
Tennessee Rules of Appellate Procedure, from the trial court's
dismissal of his petition for writ of habeas corpus. In May, 1994,
the petitioner pled guilty to theft of property worth more than
$10,000 but less than $60,000, felony jail escape, and several counts
of possession with the intent to sell various controlled substances.
He received Range III sentences of fifteen years on the theft charge,
six years for escape, fifteen years for one possession count and eight
years for each of the others. In his petition, Attaway challenges
only his conviction for felony escape. Although the petitioner
contends that the trial judge erred by dismissing his petition without
appointing counsel or holding an evidentiary hearing, his major
contention is that his conviction for felony escape is void because
the indictment failed to the allege the mens rea for that offense.
URL:http://www.tba.org/tba_files/TCCA/attwyr_opn.WP6
WESLEY BARNES
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Ardena J. Garth John Knox Walkup
District Public Defender Attorney General of Tennessee
and and
Richard Heinsman and Michael J. Fahey, II
Donna Robinson Miller Assistant Attorney General of TN
Assistant Public Defenders 450 James Robertson Parkway
701 Cherry Street Nashville, TN 37243-0493
Chattanooga, TN 37402
(AT TRIAL) William H. Cox
District Attorney General
Ardena J. Garth and
District Public Defender Leland Davis
and Asst District Attorney General
Donna Robinson Miller 600 Market Street
Assistant Public Defender Courts Building
Suite 300 Chattanooga, TN 37402
701 Cherry Street
Chattanooga, TN 37402
(ON APPEAL)
Judge:Tipton
First Paragraph:
The petitioner, Wesley Barnes, appeals as of right from the denial of
his petition for post-conviction relief by the Hamilton County
Criminal Court. He seeks relief from his conviction upon a guilty
plea for attempt to commit aggravated arson resulting in an eight-year
sentence. He claims that the trial court incorrectly found that he
received the effective assistance of counsel. Particularly, the
petitioner asserts that his trial attorney failed to investigate the
case, intervened into negotiations without retained counsel's
permission, pressured him into pleading guilty, and misadvised him
that he was facing a life sentence on the original aggravated arson
charge. We affirm the trial court.
URL:http://www.tba.org/tba_files/TCCA/barnesw_opn.WP6
STATE OF TENNESSEE
vs.
MICHAEL K. CHRISTIAN, JR
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Gale Flanary Charles W. Burson
Assistant Public Defender Attorney General & Reporter
P.O. Box 839
Blountville, TN 37617 Timothy F. Behan
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Joseph Eugene Perrin
Asst District Attorney General
P.O. Box 526
Blountville, TN 37617
Judge:WADE
First Paragraph:
The defendant, Michael K. Christian, Jr., was convicted of attempted
first-degree murder, attempted aggravated kidnapping, two counts of
burglary, theft over $500, and theft under $500. The trial court
imposed an effective sentence of twenty-five years.
URL:http://www.tba.org/tba_files/TCCA/chrstnmk_opn.WP6
STATE OF TENNESSEE
vs.
JAMES DALE GRINDSTAFF
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
STEVE McEWEN JOHN KNOX WALKUP
Asst. District Public Defender Attorney General & Reporter
142 E. Market St.
Johnson City, TN 37601 CLINTON J. MORGAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
DAVID E. CROCKETT
Dist. Attorney General
MICHAEL LaGUARDIA
Asst. Dist. Attorney General
P.O. Box 38
Jonesborough, TN 37659
Judge:WITT
First Paragraph:
The defendant, James Dale Grindstaff, stands convicted of DUI
following trial before a jury of his peers in the Washington County
Criminal Court. He asks this court to reverse his conviction based
upon the admission of (1) evidence about the horizontal gaze nystagmus
test and the results of his performance of that test without proper
scientific foundation, and (2) breathalyser test results where the
state conceded the arresting officer had not continuously observed the
defendant for 20 minutes prior to administration of the test. For the
reasons that follow, we agree with the defendant and reverse his
conviction and remand for a new trial.
URL:http://www.tba.org/tba_files/TCCA/grindsta_opn.WP6
STATE OF TENNESSEE
vs.
DAVID GLEN HAYNES
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Stephen M. Wallace Charles W. Burson
District Public Defender Attorney General of Tennessee
and and
Gale K. Flanary Janis L. Turner
Asst Dist. Public Defender Counsel for the State
P.O. Box 839 450 James Robertson Parkway
Blountville, TN 37617 Nashville, TN 37243-0493
H. Greeley Wells, Jr.
District Attorney General
and
Phyllis H. Miller
Asst District Attorney General
P.O. Box 526
Blountville, TN 37617
Judge:Tipton
First Paragraph:
The defendant, David Glen Haynes, appeals as of right from an order of
the Sullivan County Criminal Court reversing its earlier grant of
intensive probation. On July 13, 1995, the defendant was convicted of
aggravated burglary and aggravated assault, Class C felonies, in the
Sullivan County Criminal Court upon his entry of guilty pleas. The
defendant was sentenced as a Range I, standard offender to concurrent
sentences of five years. The trial court ordered that the defendant
serve his sentences consecutively to the sentences imposed in an
unrelated case. The trial court initially granted intensive
probation, but it reconsidered and reversed its decision after
granting the state's petition for a rehearing based upon the
defendant's commission of an assault upon his girlfriend that was not
revealed at the sentencing hearing. The defendant contends that the
trial court erroneously granted the state's petition to rehear and
erroneously denied probation. We affirm the judgment of the trial
court.
URL:http://www.tba.org/tba_files/TCCA/haynesdg_opn.WP6
TERRY T. LAMM
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
KEVIN SHEPHERD JOHN KNOX WALKUP
404 Ellis Ave. Attorney General & Reporter
Maryville, TN 37804
MICHAEL J. FAHEY, II
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
MICHAEL L. FLYNN
District Attorney General
PHILIP MORTON
Asst District Attorney General
363 Court St.
Maryville, TN 37804
Judge:WITT
First Paragraph:
The petitioner, Terry T. Lamm, appeals pursuant to Rule 3 of the
Tennessee Rules of Appellate Procedure from the Blount County Circuit
Court's denial of post-conviction relief. In 1994, a jury found the
petitioner guilty of leaving the scene of an accident, and the trial
judge sentenced him to eleven months and twenty-nine days with sixteen
days to be served on weekends or work release and the balance on
probation. State v. Terry T. Lamm, No. 03C01-9401-CR-0030, slip op.
at 2 (Tenn. Crim. App., Knoxville, October 6, 1995). Lamm was free on
bond while his conviction was on appeal. When this court found that
the evidence was legally sufficient to sustain his conviction and
affirmed the trial court's denial of full probation, he fled the
jurisdiction. The capias was never served.
URL:http://www.tba.org/tba_files/TCCA/lammt_opn.WP6
THOMAS CALVIN MANEY, JR.
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
THOMAS CALVIN MANEY, JR. JOHN KNOX WALKUP
N.E.C.C. #216056, Pro se Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683 SANDY COPOUS PATRICK
Assistant Attorney General
2d Floor Cordell Hull Building
425 Fifth Ave. North
Nashville, TN 37243-0943
JERRY N. ESTES
District Attorney General
130 Washington Ave.
P.O. Box 647
Athens, TN 37371-0647
Judge:WITT
First Paragraph:
Thomas Calvin Maney, the petitioner, appeals the Bradley County
Criminal Court's dismissal of his post-conviction petition on February
29, 1996. From the scant record before us we learn that the
petitioner pleaded guilty on March 11, 1994 and was sentenced to serve
eleven months and twenty-nine days. The petitioner filed a petition
for post-conviction relief on July 7, 1994 alleging ineffective
assistance of counsel, prosecutorial misconduct, and falsification of
official documents. The trial court dismissed the petition by a
written order dated February 29, 1996 because the petitioner failed to
appear at a hearing scheduled two days earlier. The order was not
filed until June 3, 1996. According to a letter in the record, the
petitioner filed a motion to reconsider the dismissal on February 3,
1997. The record contains no copy of the motion. He filed a notice
of appeal on March 24, 1997.
URL:http://www.tba.org/tba_files/TCCA/maneyt_opn.WP6
STATE OF TENNESSEE
vs.
ROBERT H. McCURDY
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLIE ALLEN JOHN KNOX WALKUP
P.O. Box 5027 Attorney General and Reporter
Oneida, TN 37841
TIMOTHY F. BEHAN
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
WILLIAM PAUL PHILLIPS
District Attorney General
E. SHAYNE SEXTON
Assistant District Attorney General
P.O. Box 323
Jacksboro, TN 37757
Judge:WELLES
First Paragraph:
The Defendant, Robert H. McCurdy, appeals as of right pursuant to Rule
3 of the Tennessee Rules of Appellate Procedure. He was convicted by
a Union County jury of two counts of aggravated sexual battery and two
counts of contributing to the delinquency of a minor. He was
sentenced as a standard, Range I offender to consecutive sentences of
eight years for each count of aggravated sexual battery. The
sentences for contributing to the delinquency of a minor were ordered
to run concurrently with the aggravated sexual battery sentences. The
Defendant raises three issues in this appeal: (1) That the trial court
erred by failing to properly charge the jury regarding possible
sentences or to charge the jury that the Defendant would be required
to serve one hundred percent of his sentences for aggravated sexual
battery; (2) that the trial court erred by ruling that Tennessee Code
Annotated section 40 35-201 is unconstitutional; and (3) that the
trial court erred by ordering the aggravated sexual battery sentences
to be served consecutively. We affirm the Defendant's convictions.
We reverse the trial court's finding that the sentences should be
served consecutively and remand for the entry of an order consistent
with this opinion.
URL:http://www.tba.org/tba_files/TCCA/mccurdrh_opn.WP6
URL:http://www.tba.org/tba_files/TCCA/mccurdrh_con.WP6
STATE OF TENNESSEE
vs.
HAROLD LEON SUTTON, JR.
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
EDWARD C. MILLER (appeal) JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
P.O. Box 416
Dandridge, TN 37725 SANDY C. PATRICK
Assistant Attorney General
ALAN FELTES (trial) 450 James Robertson Pkwy.
Attorney at Law Nashville, TN 37243-0493
159 W. Main St.
Sevierville, TN ALFRED C. SCHMUTZER, JR.
Dist. Attorney General
STEVEN R. HAWKINS
Asst. Dist. Attorney General
Sevier County Courthouse
Sevierville, TN
Judge:WITT
First Paragraph:
The defendant, Harold Leon Sutton, Jr., appeals from his conviction of
the crime of aggravated sexual battery. Sutton was found guilty by a
jury of his peers in the Sevier County Criminal Court. He is
presently serving a nine year sentence in the Department of
Correction.
URL:http://www.tba.org/tba_files/TCCA/suttonhl_opn.WP6
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© Copyright 1996-1997 Tennessee Bar Association - This Issue (IN THIS ORDER):