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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STATE OF TENNESSEE vs. BARBARA BYRD CourtTSC Attorneys: FOR APPELLANT: FOR APPELLEE: EDWARD C. MILLER JOHN KNOX WALKUP PUBLIC DEFENDER ATTORNEY GENERAL AND REPORTER DANDRIDGE MICHAEL J. FAHEY II ASSISTANT ATTORNEY GENERAL NASHVILLE Judge:HOLDER First Paragraph: We granted this appeal to address the validity of an indictment that aggregates, under Tenn. Code Ann. S 39-14-103, the value of stolen property belonging to different owners. We hold that aggregation of value is permissible under S 39-14-103 when a defendant simultaneously exercises possession or control over stolen property belonging to different owners. URL:http://www.tba.org/tba_files/TSC/byrdbarb_opn.WP6 STATE OF TENNESSEE vs. JOSEPH CATTONE CourtTSC Attorneys: FOR APPELLANTS: FOR APPELLEES: CHARLES M. CORN JOHN KNOX WALKUP PUBLIC DEFENDER ATTORNEY GENERAL AND REPORTER CLEVELAND ELIZABETH T. RYAN ASSISTANT ATTORNEY GENERAL NASHVILLE Judge:HOLDER First Paragraph: We granted an appeal in this case to determine whether the values of service rendered by different individuals may be aggregated under the theft of services statute, Tenn. Code Ann. S 39-14-104. In State v. Byrd, ___ S.W.2d ___ (Tenn. 1998), we held simultaneous possession of stolen property belonging to different owners may be considered as one offense and the value of the property may be aggregated for purposes of establishing the grade of offense under the theft of property statute. Our holding in Byrd, however, was limited to theft by the exercise of control over another's property and did not apply to theft of services. We hold that the value of services taken from separate individuals cannot be aggregated under the theft of services statute. URL:http://www.tba.org/tba_files/TSC/cattonej_opn.WP6 STATE OF TENNESSEE, EX REL. ROBERT J. EARHART, ET AL. vs. CITY OF BRISTOL, TENNESSEE CourtTSC Attorneys: For Plaintiffs-Appellants: For Defendant-Appellee: David H. Hornik Jack W. Hyder, Jr. Nashville Massengill, Caldwell, and Hyder, P.C. David L. Buuck Bristol Knoxville Amicus Curiae: Tennessee Municipal Attorneys' Association Debra C. Poplin Knoxville Judge:REID First Paragraph: The issues presented had their origin in two annexation ordinances adopted by the City of Bristol in 1989. The ordinances undertook to annex the right-of-way of Highway 11E extending approximately four miles south from the city limits of Bristol into the Piney Flats area. The area included no property other than the highway right-of-way. URL:http://www.tba.org/tba_files/TSC/earhartr_opn.WP6 STATE OF TENNESSEE vs. MARIO A. LAVENDER and, ERIC L. HOBBS CourtTSC Attorneys: FOR THE APPELLANTS FOR APPELLEE: Attorney for Mario A. Lavender John Knox Walkup Deanna Bell Johnson Attorney General & Reporter Nashville, Tennessee Michael E. Moore Attorneys for Eric L. Hobbs Solicitor General Jeffrey A. DeVasher Assistant Public Defender Marvin E. Clements, Jr. Nashville, Tennessee Assistant Attorney General (Appeal Only) 450 James Robertson Pkwy. Nashville, Tennessee Joan A. Lawson Assistant Public Defender Victor S. Johnson, III Nashville, Tennessee District Attorney General (Trial Only) Nicholas D. Bailey Charles Carpenter Asst District Attorneys General Nashville, Tennessee Judge:DROWOTA First Paragraph: The defendants, Mario A. Lavender and Eric Hobbs, each were convicted on two counts of robbery and one count of theft. With respect to Lavender, the trial judge imposed consecutive sentences of six years on each robbery conviction, and four years on the theft conviction, for an effective sentence of sixteen years. With respect to Hobbs, the trial judge imposed consecutive sentences of ten years on each robbery conviction, and four years on the theft conviction, for an effective sentence of twenty-four years. The Court of Criminal Appeals affirmed the trial court's judgment. URL:http://www.tba.org/tba_files/TSC/hobbse_opn.WP6 PAM OGREN vs. HOUSECALL HEALTH CARE, INC. CourtTSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Linda J. Hamilton Mowles, Esq. Conrad Finnell Lewis, King, Krieg, Waldrop P.O. Box 1476 & Catron, P.C. Cleveland, TN 37364-1476 One Centre Square, Fifth Floor 620 Market Street P.O. Box 2425 Knoxville, TN 37901 Judge:BYERS First Paragraph: The trial judge found the plaintiff had sustained a 70 percent permanent vocational impairment as a result of an on-the-job injury. URL:http://www.tba.org/tba_files/TSC_WCP/ogren_wc.WP6 BENJAMIN K. REED vs. MUELLER COMPANY CourtTSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Charles J. Gearhiser Joseph C. Wilson III Wade K. Cannon Sixth Floor, Pioneer Bank Bldg. 320 McCallie Avenue 801 Broad Street Chattanooga, Tenn. 37402 P.O. Box 1749 Chattanooga, Tenn. 37401-1749 Judge:THAYER First Paragraph: The employee, Benjamin K. Reed, has appealed from a ruling of the trial court dismissing his claim for benefits as a result of an accident while working for defendant, Mueller Company. The trial court found the employee had failed to establish that his back injury was caused by the accident at work on July 26, 1994. Since the case was dismissed, there was no ruling on the employer's defenses of lack of proper notice and the expiration of the one year statute of limitations. URL:http://www.tba.org/tba_files/TSC_WCP/reedben_wc.WP6 SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL April 27, 1998 CourtTSC - Rules URL:http://www.tba.org/tba_files/TSC_RULES/statelst27_wpd.WP6 JOHN D. BICKFORD vs. CHRISTI MARIA BICKFORD CourtTCA Attorneys: Jerry Scott John L. Kea, II Scott & Kea 100 E. Vine St. P. O. Box 1216 Murfreesboro, TN 37133-1216 ATTORNEYS FOR THE APPELLANT William Kennerly Burger 301 North Spring St. P. O. Box 1969 Murfreesboro, TN 37133-1969 ATTORNEY FOR THE APPELLEE Judge:INMAN First Paragraph: The sole issue on appeal in this domestic relations case is whether the trial court's determination of the value of a coin collection is contrary to the preponderance of the evidence. A reasoned resolution of this issue is made difficult by virtue of the fact that the trial court doubted the credibility of both principals. URL:http://www.tba.org/tba_files/TCA/bickford_ca1.WP6 BARBARA BRANUM vs. CORRINE W. AKINS and MELVIN L. AKINS CourtTCA Attorneys: For Appellant For Appellee Corrine W. Akins JOHN C. CAVETT, JR. R. DEE HOBBS Cavett & Abbott, PLLC Bell, Turner & Hobbs Chattanooga, Tennessee Chattanooga, Tennessee For Appellee Melvin L. Akins ROBERT G. NORRED, JR. Spears, Moore, Rebman & Williams Chattanooga, Tennessee Judge:Susano First Paragraph: In this case, we are called upon to determine whether a trustee's past conduct conformed to her fiduciary duty. URL:http://www.tba.org/tba_files/TCA/branumb_opn.WP6 JO ANN DUCKETT vs. FOX FIRE APARTMENTS; FOX FIRE APARTMENTS 1; FOX FIRE APARTMENTS 2; AGS JACKSON ASSOCIATES, L.P., AGS PROPERTIES; OLD HICKORY PROPERTIES, L.P.; RESOURCE CAPITAL GROUP, INC.; OLD HICKTORY APARTMENTS - PHASE II; GENCO PROPERTIES; OLD HICKORY PROPERTIES; MORRIS CROCKER; LYNDA CROCKER, and HUNTER MANAGEMENT COMPANY, CourtTCA Attorneys: Jerald M. Campbell, Jr.; L. L. Harrell, Jr. of Trenton for Appellant D. Scott Turner; Thomas F. Preston of Memphis for Appellees Judge:CRAWFORD First Paragraph: In this slip and fall case, Plaintiff/Appellant Jo Ann Duckett (Duckett) filed suit against defendants, AGS Partners, MLP, L.P., Resource Capital Group, Inc. and Hunter Management Group for personal injury damages. Duckett appeals the trial court's order granting defendants' motion for summary judgment. URL:http://www.tba.org/tba_files/TCA/duckettj_opn.WP6 RAYMOND O. HAMPTON vs. TENNESSEE TRUCK SALES, INC. CourtTCA Attorneys: G. Kline Preston, IV Washington Square Two 222 2nd Avenue North Suite 416 Nashville, TN 37201 ATTORNEY FOR PLAINTIFF/APPELLANT Gerald C. Wigger W. Carl Spining ORTALE, KELLEY, HERBERT & CRAWFORD, LLP 200 Fourth Avenue North Third Floor P. O. Box 198985 Nashville, TN 37219-8985 ATTORNEYS FOR DEFENDANT/APPELLEE Judge:INMAN First Paragraph: Appellant purchased a used truck from seller [appellee] then filed a complaint against appellee, along with the manufacturers of refurbished parts, alleging that a subsequent $7,330.00 repair bill was occasioned by their breach of express and implied warranties on the truck. The parties entered into an agreed order which stipulated that the seller and manufacturers would share the cost of repairs and deliver the truck to appellant in good condition. Appellant took possession of the truck but seven months later filed this Rule 60.02 motion to set aside the agreed order. URL:http://www.tba.org/tba_files/TCA/hampton_ca1.WP6 ELIZABETH HENDRIX vs. NORA ELIZABETH McGILL CourtTCA Attorneys: George H. Cate, Jr. 95 White Bridge Road Suite 503, Cavalier Building Nashville, TN 37205 ATTORNEY-AD-LITEM- FOR RESPONDENT/APPELLANT William Kennerly Burger SunTrust Bank Building, Suite 306 201 E. Main Street, P. O. Box 1969 Nashville, TN 37133-1969 ATTORNEY FOR PETITIONER/APPELLEE Judge:INMAN First Paragraph: The trial court found the respondent in need of a conservator and appointed Guardianships and Trusts, Inc. as conservator of her person and her estate. URL:http://www.tba.org/tba_files/TCA/hendrix_ca1.WP6 MYONG S. HUANG vs. JIMMY SHIN HUANG vs. MYONG NAN GATES CourtTCA Attorneys: William B. Bruce Bruce, Weathers, Corley, Dughman & Lyle 315 Deaderick Street, Suite 2075 Nashville, TN 37238-2075 ATTORNEY FOR DEFENDANT/APPELLANT Mary Arline Evans Philip W. Duer Stanley A. Davis 214 Third Avenue North Nashville, TN 37201 ATTORNEYS FOR PLAINTIFF/APPELLEE AND FOR INTERVENOR/APPELLEE Judge:INMAN First Paragraph: In this divorce action the trial court found that Husband and Wife were both guilty of inappropriate marital conduct and granted each a divorce from the other pursuant to T.C.A. S 36-4-129. Custody of the parties' minor child, age three, was granted to Wife, who was awarded rehabilitative alimony of $500.00 per month for sixty months and alimony in solido of $500.00 per month which was to terminate when the note encumbering the Wife's van, in the approximate amount of $12,000.00, was paid in full. In a separate order on an intervening petition, the trial court entered judgment against Husband and in favor of Intervenor Myong Nan Gates on a Promissory Note. URL:http://www.tba.org/tba_files/TCA/huang_ca1.WP6 JOHANNA JARRETT vs. TERRY B. STARKEY CourtTCA Attorneys: For Appellant For Appellee JOHANNA JARRETT, Pro Se NO APPEARANCE Chattanooga, Tennessee Judge:Susano First Paragraph: In this paternity action, the petitioner, Johanna Jarrett ("Mother"), the natural mother of Ethan Oliver Starkey (DOB: November 21, 1989), appealed the trial court's order denying her request that the child's putative father, Terry B. Starkey ("Father"), be ordered to pay her attorney's fees, and that he be further ordered to obtain health insurance for the parties' minor child. URL:http://www.tba.org/tba_files/TCA/jarrettj_opn.WP6 RICHARD L. NORTHCOTT vs. TENNESSEE DEPARTMENT OF CORRECTION, ET AL. CourtTCA Attorneys: RICHARD L. NORTHCOTT, #93811 Turney Center Route One Only, Tennessee 37140-9709 Pro Se/Petitioner/Appellant JOHN KNOX WALKUP Attorney General and Reporter JOHN R. MILES Assistant Attorney General 425 5th Avenue North Nashville, Tennessee 37243-0488 Attorney for Respondent/Appellee Judge:CANTRELL First Paragraph: An inmate in the custody of the Department of Correction filed a declaratory judgment action which alleged that the Department had failed to award him sentence reduction credits to which he was entitled. The Department did not respond in the allotted time, and the trial court granted the inmate a default judgment. The Department subsequently filed a motion to set aside the default, coupled with a motion for a summary judgment against the inmate. The trial court granted both motions. We affirm the trial court's action in setting aside the default, but we reverse the summary judgment. URL:http://www.tba.org/tba_files/TCA/northrl_opn.WP6 VICKIE GALE PRITCHETT vs. DENNIS DAY PRITCHETT CourtTCA Attorneys: For Appellant For Appellee THOMAS R. BANDY, III NAT H. THOMAS Kingsport, Tennessee Kingsport, Tennessee Judge:Susano First Paragraph: In this divorce case, the defendant, Dennis Day Pritchett ("Father"), appealed. He raises issues pertaining to custody, child support, and visitation. URL:http://www.tba.org/tba_files/TCA/pritchvg_opn.WP6 BARRY SAWYER vs. FIRST TENNESSEE BANK, DYERSBURG, TENNESSEE and SECURITY BANK CourtTCA Attorneys: For the Plaintiff/Appellant: For the Defendants/Appellees: Charles M. Agee, Jr. W. Stanworth Harris Dyersburg, Tennessee Jackson, Tennessee Judge:LILLARD First Paragraph: This is a premises liability case. The plaintiff was injured when he encountered a drop-off between the parking lot of two banks. The defendant banks filed a motion for summary judgment, arguing that the drop-off was open and obvious. The trial court granted the summary judgment motion, from which the plaintiff appeals. We reverse. URL:http://www.tba.org/tba_files/TCA/sawyerb_opn.WP6 RAYMOND WARREN SWOFFARD vs. JUANITA S. DEL PINO-McCLARTY CourtTCA Attorneys: For Appellant For Appellee MITCHELL A. BYRD PAMELA R. O'DWYER Chattanooga, Tennessee Paty, Rymer & Ulin, P.C. Chattanooga, Tennessee Judge:Susano First Paragraph: This appeal was taken from orders entered following two post-divorce hearings. The parties were divorced in 1985. The current round of litigation began on October 8, 1996, when Juanita S. Del Pino-McClarty, the former Mrs. Swoffard, filed a petition for contempt and for modification of the parties' 1985 divorce judgment. Mr. Swoffard responded with his own counterclaim for relief. The trial court granted partial relief to both of the parties. Ms. McClarty appealed, arguing (1) that the trial court erred in setting child support; (2) that the trial court erred in awarding Mr. Swoffard a money judgment for his overpayment of federal income taxes caused by Ms. McClarty's failure to sign the necessary tax forms to give him the tax exemptions for the parties' two children; (3) that the court erred in allowing Mr. Swoffard to testify as to the amount of his overpayment of federal income taxes; and (4) that the trial court erred in offsetting Mr. Swoffard's child support arrearage to Ms. McClarty against the amount she owed him for his overpayment of federal income taxes. URL:http://www.tba.org/tba_files/TCA/swffrdrw_opn.WP6 MELVIN VAUGHN and wife MAJORIE VAUGHN vs. STEPHEN R. KING and wife SHIRLEY A. KING CourtTCA Attorneys: For Plaintiffs/Appellees: For Defendants/Appellants: Frank M. Fly Phillip M. George N. Andy Myrick, Jr. Smyrna, Tennessee Murfreesboro, Tennessee Judge:KOCH First Paragraph: This appeal involves a dispute concerning the payment of the consideration for the conveyance of residential property in Smyrna. After the purchasers ceased making the agreed upon payments, the sellers filed suit in the Circuit Court for Rutherford County seeking to recover the unpaid balance of the purchase price. The purchasers attempted to avoid liability by asserting that the statute of frauds barred the sellers' claim. The trial court denied the purchasers' motion for summary judgment, and a jury awarded the sellers a $42,864 judgment. We have determined that the trial court correctly determined that the statute of frauds did not bar the sellers' action and, therefore, affirm the judgment. URL:http://www.tba.org/tba_files/TCA/vaughnm_opn.WP6 JIMMY H. VAUGHN vs. MARY RUNYON VAUGHN CourtTCA Attorneys: Larry Roberts 627 Second Avenue South Nashville, TN 37210 ATTORNEY FOR PLAINTIFF/APPELLANT Thomas F. Bloom 500 Church Street, 5th Floor Nashville, TN 37219 ATTORNEY FOR DEFENDANT/APPELLEE Judge:INMAN First Paragraph: The trial court found that there had been a change of circumstances and increased Jimmy Hunter Vaughn's [husband's] alimony obligation to Mary Runyon Vaughn [wife] from $400.00 per month to $600.00 per month. The court also found that husband should pay $350.00 as reasonable attorney fees to wife's attorney. URL:http://www.tba.org/tba_files/TCA/vaughn_ca1.WP6 JIMMY EISOM vs. STATE OF TENNESSEE CourtTCCA Attorneys: For Appellant: For Appellee: William D. Massey John Knox Walkup 3074 East Street Attorney General & Reporter Memphis, TN 38128 Deborah A. Tullis John E. Herbison Assistant Attorney General 2016 Eighth Avenue, South 450 James Robertson Parkway Nashville, TN 37204 Nashville, TN 37243-0493 C. Phillip Bivens District Attorney General P.O. Drawer E Dyersburg, TN 38024 Judge:WADE First Paragraph: The petitioner, Jimmy Eisom, appeals the trial court's denial of post conviction relief. He was convicted of second degree murder and received a life sentence. This court affirmed and the supreme court denied review. State v. Jimmy Eisom and Michael D. Williams, No. 5 (Tenn. Crim. App., at Jackson, Nov. 12, 1986), app. denied, (Tenn., Mar. 9, 1987). In 1989, the petitioner filed his first petition for post-conviction relief alleging ineffective assistance of counsel. The trial court denied relief. This court affirmed. Michael Williams and Jimmy Eisom v. State, No. 02C01-9107-CC-00154 (Tenn. Crim. App., at Jackson, June 3, 1992). URL:http://www.tba.org/tba_files/TCCA/eisomj_opn.WP6 DANIEL J. HARMON vs. STATE OF TENNESSEE CourtTCCA Judge:WOODALL First Paragraph: This matter is before the Court upon the state's motion requesting that the judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules. Finding that the trial court properly denied post-conviction relief, we grant the state's motion to affirm the judgment pursuant to Rule 20. URL:http://www.tba.org/tba_files/TCCA/harmond1_ord.WP6 STATE OF TENNESSEE vs. THOMAS J. McKEE CourtTCCA Attorneys: FOR THE APPELLANT FOR THE APPELLEE Mark E. Stephens Charles W. Burson Sixth District Public Defender Attorney General & Reporter R. Scott Carpenter Robin L. Harris Assistant Public Defender Assistant Attorney General 1209 Euclid Avenue 450 James Robertson Parkway Knoxville, TN 37921 Nashville, TN 37243-0493 Judge:BYERS First Paragraph: This appeal involves a dispute concerning the payment of the consideration for the conveyance of residential property in Smyrna. After the purchasers ceased making the agreed upon payments, the sellers filed suit in the Circuit Court for Rutherford County seeking to recover the unpaid balance of the purchase price. The purchasers attempted to avoid liability by asserting that the statute of frauds barred the sellers' claim. The trial court denied the purchasers' motion for summary judgment, and a jury awarded the sellers a $42,864 judgment. We have determined that the trial court correctly determined that the statute of frauds did not bar the sellers' action and, therefore, affirm the judgment. URL:http://www.tba.org/tba_files/TCCA/mckeetj_opn.WP6 STATE OF TENNESSEE vs. RANDAL A. THIES CourtTCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: J. THOMAS CALDWELL JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 144 Jefferson St. Ripley, TN 38063 ELIZABETH T. RYAN Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 ELIZABETH T. RICE Dist. Attorney General WALT FREELAND Asst. Dist. Attorney General 302 Market St. Somerville, TN 38068 Judge:WITT First Paragraph: The defendant, Randal A. Thies, appeals the length and manner of sentencing imposed upon him as a result of his convictions of third offense driving under the influence, driving while license suspended, canceled or revoked, vehicular homicide and reckless endangerment. Thies is presently incarcerated, serving his effective four and one-half year sentence consecutively to a previous 11 month, 29 day sentence upon which his probation was revoked as a result of the instant crimes. His sentence was imposed following a jury trial in the Tipton County Circuit Court. URL:http://www.tba.org/tba_files/TCCA/thiesra_opn.WP6 STATE OF TENNESSEE vs. IVORY THOMAS CourtTCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: A C WHARTON, JR. JOHN KNOX WALKUP Public Defender Attorney General & Reporter TONY N. BRAYTON JANIS L. TURNER Asst. Public Defender Counsel for the State 201 Poplar, Suite 201 425 Fifth Ave., North Memphis, TN 38103 Cordell Hull Bldg., Second Fl. Nashville, TN 37243-0493 JOHN W. PIEROTTI District Attorney General CHARLES BELL Asst. District Attorney General 201 Poplar, Suite 301 Memphis, TN 38103 Judge:PEAY First Paragraph: The defendant was indicted in August 1995 on one count of especially aggravated robbery. A jury found him guilty of the charged offense and the trial court sentenced him as a Range I standard offender to twenty-five years. In this appeal as of right, the defendant argues that the trial court erred in allowing testimony explaining the absence of a State witness. He further argues that his sentence is excessive. After a review of the record and applicable law, we affirm the defendant's conviction but modify his sentence to seventeen years. URL:http://www.tba.org/tba_files/TCCA/thomasi_opn.WP6 CARL WOMAC vs. STATE OF TENNESSEE CourtTCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CHARLES M. CORN JOHN KNOX WALKUP District Public Defender Attorney General & Reporter RICHARD HUGHES, JR. GEORGIA BLYTHE FELNER Assistant Public Defender Assistant Attorney General P.O. Box 1453 Cordell Hull Bldg., 2nd Floor Cleveland, TN 37364 425 Fifth Avenue North Nashville, TN 37243-0493 JERRY N. ESTES District Attorney General SANDRA DONAGHY Asst District Attorney General P.O. Box 1351 Cleveland, TN 37364 Judge:CLARK First Paragraph: The defendant appeals as of right his conviction for driving under the influence of an intoxicant, second offense. He raises a single issue - that the evidence is insufficient to support the jury's verdict of guilty on the underlying charge. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/womacc_opn.WP6
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