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TBALink Opinion-Flash
April 6, 1998 -- Volume #4 -- Number #061
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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- 00-New Opinons From TSC
- 00-New Opinons From TSC-Rules
- 01-New Opinons From TSC-Workers Comp Panel
- 07-New Opinons From TCA
- 08-New Opinons From TCCA
- 00-New Opinons From TSC
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DEBORAH ELLIS vs. NATIONAL UNION INSURANC COMPANY and SUE ANN HEAD Court:TSC - Workers Comp Panel Attorneys: For Appellant: For Appellee, Deborah Ellis: J. Bartlett Quinn Thomas L. Wyatt Fleissner, Cooper, Marcus & Quinn Summers & Wyatt Chattanooga, Tennessee Chattanooga, Tennessee For Appellee, Second Injury Fund: John Knox Walkup Attorney General & Reporter Sandra E. Keith Assistant Attorney General Nashville, Tennessee Judge:Loser 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. section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer's insurer and the Second Injury Fund contend the evidence preponderates against the trial court's finding that the employee's asthma is compensable; and the employer's insurer contends the condition is not permanent. As discussed below, the panel concludes the judgment should be affirmed. URL:http://www.tba.org/tba_files/TSC_WCP/ellivnat_doc.WP6
STEVEN COBB
vs.
JOSEPH VINSON, Chairman
LCRCF Disciplinary Board, et al
Court:TCA
Attorneys:
STEVEN COBB, pro se
Henning, Tennessee
JOHN KNOX WALKUP
Attorney General and Reporter
SOHNIA W. HONG
Assistant Attorney General
Attorneys for Appellee
Judge:HIGHERS
First Paragraph:
Stephen Cobb ("petitioner") filed a pro se Petition for Writ of
Certiorari in the Circuit Court of Lake County against Joseph Vinson,
Chairman of the Lake County Regional Correctional Facility
disciplinary board ("LCRCF"); Billy Compton, warden of LCRCF; and
Donal Campbell ("commissioner"), commissioner of the Tennessee
Department of Correction (collectively "respondents") seeking court
review of actions taken by the prison disciplinary board, prison
warden, and department commissioner. Due process violations resulting
therefrom were also alleged. The trial court granted respondents'
motion for dismissal for improper venue and petitioner has appealed.
On appeal, a single issue was presented for our review: whether the
trial court erred in granting respondents' motion to dismiss for
improper venue. For reasons state hereinafter, we reverse the
judgment of the trial court and remand.
URL:http://www.tba.org/tba_files/TCA/cobbs_opn.WP6
URL:http://www.tba.org/tba_files/TCA/cobbs_con.WP6
BRIAN KEITH FEATHER
vs.
DOLLY DEKRAFFT FEATHER
Court:TCA
Attorneys:
Clinton S. Swafford, SWAFFORD, PETERS & PRIEST, Winchester, Tennessee
Attorney for Plaintiff/Appellant.
Lucinda E. Smith, DODSON, PARKER & BEHM, Nashville, Tennessee
Attorney for Plaintiff/Appellee.
Judge:FARMER
First Paragraph:
This somewhat protracted litigation began in August 1993 when Brian
Keith Feather (Husband) filed for divorce from Dolly deKrafft Feather
(Wife). A divorce decree was entered by the chancery court in
September 1994, which, inter alia, dissolved the fifteen year marriage
of the parties and determined custody of their four minor children.
Separate orders pertaining to the case were entered by the trial court
in August and October, 1995, respectively. Both parties appealed
therefrom, but this Court in April 1996, determined that the parties'
respective appeals were from a nonfinal judgment. Litigation
thereafter continued due to the parties' filings of various petitions
for contempt, to rehear and to modify custody. After additional
hearings, the trial court entered its final judgment in December 1996
from which both parties have appealed. The primary issues before us
concern the trial court's decisions regarding child custody and
classification and division of the marital estate. For the reasons
hereinafter stated, we affirm as modified.
URL:http://www.tba.org/tba_files/TCA/featherb_opn.WP6
JOSEPH ANTHONY GANNON and
GLORIA C. GANNON
vs.
ROBERT KOCH and DEBORAH KOCH
Court:TCA
Attorneys:
Brad W. Hornsby
BULLOCK, FLY & MCFARLAND
301 N. Spring Street
P.O. Box 398
Murfreesboro, TN 37133-0398
ATTORNEY FOR PLAINTIFFS/APPELLEES
Robert A. Maness
MARKS, SHELL, MANESS & MARKS
114 S. 2nd Street
P.O. Box 1149
Clarksville, TN 37041-1149
ATTORNEYS FOR DEFENDANTS/APPELLANTS
Judge:TODD
First Paragraph:
The defendants, Robert and Deborah Koch, have appealed from a non jury
judgment that plaintiffs, Joseph and Gloria Gannon, have a private
easement from their land across the land of defendants for access to
the public way.
URL:http://www.tba.org/tba_files/TCA/gannonja_opn.WP6
LINDA LEE HOLLINGSWORTH
vs.
JAMES DAVID HOLLINGSWORTH
Court:TCA
Attorneys:
Rose Palermo, BPR #3330
P.O. Box 121857
Nashville, TN 37212
ATTORNEY FOR PLAINTIFF/COUNTER-DEFENDANT/APPELLEE
Lucinda E. Smith, BPR #5056
DODSON, PARKER & BEHM, P.C.
306 Gay Street, Suite 400
P.O. Box 198066
Nashville, TN 37219-8066
ATTORNEY FOR DEFENDANT/COUNTER-PLAINTIFF/APPELLANT
Judge:TODD
First Paragraph:
In this divorce case, the defendant-counter claimant husband has
appealed from the judgment of the Trial Court dismissing the husband's
counterclaim; granting the wife a divorce on grounds of inappropriate
marital conduct, $750 per month alimony until her death or remarriage,
and $10,000.00 attorneys fees; and dividing the marital estate.
URL:http://www.tba.org/tba_files/TCA/hollinsw_opn.WP6
JAMES B. OLIVER
vs.
HARRIET C. UPTON
Court:TCA
Attorneys:
RICHARD DANCE
DANCE, DANCE & LANE
Nashville, Tennessee
Attorney for Appellant
DONALD J. SERKIN
Nashville, Tennessee
Attorney for Appellee
Judge:HIGHERS
First Paragraph:
Defendant Harriet C. Upton, now known as Harriet Cathey, appeals the
trial court's final judgment awarding Plaintiff/Appellee James B.
Oliver the sum of $15,225.66, continuing in effect the lis pendens
filed against the subject property pending Cathey's satisfaction of
the judgment, denying Cathey's request for attorney's fees, and
assessing forty percent (40%) of the costs against Cathey. We affirm
the judgment in part (with modifications), reverse in part, and remand
for further proceedings.
URL:http://www.tba.org/tba_files/TCA/oliverjb_opn.WP6
PATTY M. RICHARDS
vs.
O'CONNOR MANAGEMENT,
INCORPORATED and RUSS
HACKETT
Court:TCA
Attorneys:
James R. Tomkins, GLASGOW & VEAZEY, Nashville, Tennessee
Attorney for Plaintiff/Appellant.
M. Bradley Gilmore,
Christina Norris,
PARKER, LAWRENCE, CANTRELL & DEAN, Nashville, Tennessee
Attorneys for Defendants/Appellees.
Judge:FARMER
First Paragraph:
Plaintiff Patty M. Richards appeals the trial court's order granting
the motion for summary judgment filed by Defendants/Appellees O'Connor
Management, Inc., and Russ Hackett. In entering summary judgment in
favor of the Defendants, the trial court dismissed Richards' claims
for outrageous conduct and false imprisonment. We affirm in part,
reverse in part, and remand for further proceedings.
URL:http://www.tba.org/tba_files/TCA/richarpm_opn.WP6
STATE OF TENNESSEE
vs.
BERRY BOWLS
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
A.C. WHARTON JOHN KNOX WALKUP
Public Defender Attorney General & Reporter
EDWARD G. THOMPSON KENNETH RUCKER
Asst. Public Defender Asst. Attorney General
201 Poplar, Suite 201 425 Fifth Ave. North
Memphis, TN 38103 Nashville, TN 37243-0493
(On Appeal)
JOHN W. PIEROTTI
TERESA JONES District Attorney General
Asst. Public Defender
(At the Hearing) PERRY HAYES
Asst. District Attorney General
201 Poplar, Suite 301
Memphis, TN 38103
Judge:PEAY
First Paragraph:
The defendant was indicted on February 15, 1996, for the aggravated
assault of his girlfriend, Jerlean Irvin. On August 26, 1996, he pled
guilty to simple assault and agreed to a sentence of eleven months,
twenty-nine days. He also agreed to pay a fifty dollar ($50) fine.
Following a sentencing hearing, the trial court ordered the defendant
to serve his sentence in the Shelby County Correction Center. The
defendant now appeals and argues that the trial court erred by not
suspending his sentence.
URL:http://www.tba.org/tba_files/TCCA/bowlsb_opn.WP6
STATE OF TENNESSEE
vs.
KELVIN WADE CLOYD
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
H. Randolph Fallin John Knox Walkup
Attorney at Law Attorney General & Reporter
303 West Main Street
Mountain City, TN 37683 Clinton J. Morgan
Counsel for the State
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
David E. Crockett
District Attorney General
Joe C. Crumley and
Michael LaGuardia
Asst District Attorneys General
P.O. Box 38
Jonesborough, TN 37659
Judge:SUMMERS
First Paragraph:
Kelvin Wade Cloyd, the appellant, was convicted of two counts of
vehicular homicide and possession of a controlled substance in the
Washington County Criminal Court. The issue on appeal is whether the
evidence is sufficient to sustain the jury's verdict on the homicide
counts. The judgment of the trial court is affirmed.
URL:http://www.tba.org/tba_files/TCCA/cloydkel_opn.WP6
STATE OF TENNESSEE
vs.
MICHAEL DAVENPORT
Court:TCCA
Attorneys:
FOR THE APPELLEE: FOR THE APPELLANT:
JAMES P. SMITH, JR. JOHN KNOX WALKUP
300 Thurman Avenue Attorney General and Reporter
Crossville, TN 38555
TIMOTHY F. BEHAN
Assistant Attorney General
425 Fifth Avenue, North
Nashville, TN 37243-0493
BILL GIBSON
District Attorney General
BEN FANN
Assistant District Attorney
145 South Jefferson Street
Cookeville, TN 38501
Judge:SMITH
First Paragraph:
Appellee Michael Davenport was indicted on June 13, 1992 for attempted
first degree murder, aggravated assault, and two counts of reckless
endangerment. The prosecution, on its own motion, asked that the
aggravated assault charge be dismissed, and the trial court did so on
November 19, 1992. On November 20, 1992, Appellee was convicted by a
jury in the Cumberland County Criminal Court of aggravated assault.
As a Range I standard offender, Appellee was sentenced to five years
confinement with the Tennessee Department of Correction. This Court
affirmed Appellee's conviction. State v. Michael Davenport, C.C.A.
No. 03C01-9310-CR-00342, Cumberland County (Tenn. Crim. App.,
Knoxville, December 21, 1994). On January 28, 1997, Appellee filed a
petition for writ of habeas corpus and/or post-conviction relief,
relying upon the Tennessee Supreme Court's decision in State v.
Trusty, 919 S.W.2d 305 (Tenn. 1996). After hearing the arguments of
counsel, the trial court granted Appellee's petition for writ of
habeas corpus in light of the Trusty decision. The State presents the
following issue for our consideration on this appeal: whether the
trial court erred in granting Appellee's petition for writ of habeas
corpus.
URL:http://www.tba.org/tba_files/TCCA/davenpmi_opn.WP6
WILLIE L. HICKS
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
GERALD STANLEY GREEN JOHN KNOX WALKUP
147 Jefferson Ave., Ste 115 Attorney General & Reporter
Memphis, TN 38103
SANDY C. PATRICK
Assistant Attorney General
Criminal Justice Division
2nd Floor Cordell Hull Building
425 Fifth Ave. North
Nashville, TN 37243-0943
H. GREELEY WELLS
District Attorney General
BARRY STAUBUS
Asst District Attorney General
P.O. Box 526
Blountville, TN 37617
Judge:WITT
First Paragraph:
The petitioner, Willie L. Hicks, appeals pursuant to Rule 3, Tennessee
Rules of Criminal Procedure, from the Sullivan County Criminal
Court's denial of post-conviction relief. The petitioner pleaded
guilty in 1994 of the first-degree murder of Yolanda Riley and the
second-degree murder of her sister, Jennifer Riley. In accordance
with the plea agreement, he received a life sentence with the
possibility of parole in the first-degree murder conviction and a
consecutive sentence of fifteen years for second-degree murder. On
March 27, 1996, retained counsel filed a timely petition for
post-conviction relief alleging that the attorneys who represented the
petitioner during the plea bargaining and the submission of the plea
were ineffective and that the guilty plea was entered involuntarily.
After an evidentiary hearing, the post-conviction judge entered a
thorough and detailed memorandum order finding that Hicks had received
effective assistance of counsel and that the guilty pleas were entered
knowingly and voluntarily. Therefore, the lower court denied Hicks's
petition for post-conviction relief.
URL:http://www.tba.org/tba_files/TCCA/hicksw_opn.WP6
STATE OF TENNESSEE
vs.
KEITH A. JACKSON
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES E. WALDMAN JOHN KNOX WALKUP
147 Jefferson Ave. Attorney General & Reporter
Suite 1102
Memphis, TN 38103 GEORGIA BLYTHE FELNER
Counsel for the State
John Sevier Building
425 Fifth Ave. North
Nashville, TN 37243-0493
JOHN W. PIEROTTI
District Attorney General
LEE COFFEE
Asst. District Attorney General
201 Poplar, Suite 301
Memphis, TN 38103
Judge:PEAY
First Paragraph:
The defendant was indicted in January 1996 on charges of possession
with intent to sell an amount of marijuana in excess of ten pounds and
possession with intent to deliver marijuana in the same amount. On
November 18, 1996, he pled guilty to possession with intent to sell an
amount of marijuana under ten pounds, a Class E felony. After a
hearing, he was sentenced to one year in the county workhouse and was
fined twenty-five hundred ($2,500) dollars.
URL:http://www.tba.org/tba_files/TCCA/jacksonk_opn.WP6
STATE OF TENNESSEE
vs.
DENNIE RAY LODEN
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Dennie Loden, Pro Se John Knox Walkup
104 Davis Hollow Road Attorney General of Tennessee
Kingston, TN 37763 and
Michael J. Fahey, II
Asst Attorney General of TN
450 James Robertson Parkway
Nashville, TN 37243-0493
Charles E. Hawk
District Attorney General
and
Frank A. Harvey
Asst District Attorney General
P.O. Box 703
Kingston, TN 37763
Judge:Tipton
First Paragraph:
The defendant, Dennie Ray Loden, appeals as of right from the judgment
of the Roane County Criminal Court declaring him to be an Habitual
Motor Vehicle Offender (HMVO) who is barred from driving. He contends
that res judicata barred the trial court from declaring such status
after a previous HMVO petition based upon the same predicate
convictions had been dismissed. We affirm the trial court.
URL:http://www.tba.org/tba_files/TCCA/lodendr_opn.WP6
STATE OF TENNESSEE
vs.
ANTHONY EUGENE MOORE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Leslie M. Jeffress John Knox Walkup
Attorney at Law Attorney General & Reporter
1776 Riverview Tower
900 S. Gay Street Elizabeth B. Marney
Knoxville, TN 37902 Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
Randall E. Nichols
District Attorney General
Leon Franks
Asst District Attorney General
City-County Building
Knoxville, TN 37902
Judge:SUMMERS
First Paragraph:
In December 1994, Anthony Eugene Moore pled guilty to the sale of less
than one-half gram of cocaine and to possession of more than one-half
gram of cocaine with the intent to sell. He was sentenced to eight
years for intent to sell and to three years for the sale of less than
one-half gram, with the sentences to run consecutively. After
serving nine months in jail, the appellant was released on the
Community Alternatives to Prison Program (CAPP). Once released, the
appellant violated the conditions of his probation, and on January 5,
1996, he was arrested. His probation violations were as follows: rule
(3), failure to make a full and truthful report to his case manager;
rule (8), failure to pay court costs; rule (9), failure to perform
community service; rule (10), failure to pay community corrections
fees; and rule (14), failure to report.
URL:http://www.tba.org/tba_files/TCCA/moreanth_opn.WP6
SHERMAN SANDERS,
also known as NEILTON E. SANDERS
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Charles P. Roney John Knox Walkup
Attorney at Law Attorney General & Reporter
P. O. Box 542 425 Fifth Avenue, North
Union City, TN 38281-0542 Nashville, TN 37243-0493
Janis L. Turner
Counsel for the State
425 Fifth Avenue, North
Nashville, TN 37243-0493
Thomas A. Thomas
District Attorney General
P. O. Box 218
Union City, TN 38261-0218
James T. Cannon
Asst District Attorney General
P. O. Box 218
Union City, TN 38261-0218
Judge:Jones
First Paragraph:
The appellant, Sherman Sanders, also known as Neilton E. Sanders
(petitioner), appeals as of right from a judgment of the trial court
dismissing his post conviction action following an evidentiary
hearing. The trial court found the petitioner was afforded the
effective assistance guaranteed by the United States and Tennessee
Constitutions; and pleas of guilty entered by the petitioner were
voluntarily, understandingly, and intelligently entered. In this
court, the petitioner contends the evidence contained in the record
preponderates against the trial court's findings of fact. 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 pursuant to Rule 20, Tennessee Court of Criminal Appeals.
The evidence clearly does not preponderate against the trial court's
findings of fact.
URL:http://www.tba.org/tba_files/TCCA/sanderss_opn.WP6
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