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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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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