TBALink Opinion-Flash

May 5, 1998 -- Volume #4 -- Number #072

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.

This Issue (IN THIS ORDER):
00-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
02-New Opinons From TCA
06-New Opinons From TCCA

There are three ways to get the full opinion from the Web: (TBALink members only)

  • Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a plain text version of the opinion.

  • *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WP 6.0 document. version of the opinion.

  • Click the URL Link at end of each Opinion paragraph below. This option will allow you to download the original WP 6.0 document.

George Dean
TBALink Chief Editor


JERRY CUNNINGHAM
vs.
BAKER DONELSON, BEARMAN,    
& CALDWELL, P.C.

Court:TCA

Attorneys:

JERRY CUNNINGHAM, pro se.

ARNOLD GOLDIN, Memphis, for Defendant-Appellee.
                          
Judge:Franks

First Paragraph:

This legal malpractice action was filed on January 29, 1997, and the
Trial Court, responding to a motion to dismiss, dismissed the action
as being barred by the statute of limitations.  Plaintiff has
appealed.

URL:http://www.tba.org/tba_files/TCA/cunnghmj_opn.WP6
Opinion-Flash

JEFF HUBRIG
vs.
LOCKHEED MARTIN ENERGY  
SYSTEMS, INC.;              
LINC HALL, Individually;        
LARRY PIERCE, Individually, 
and JIM KOLLING, Individually

Court:TCA

Attorneys: 

A. Philip Lomonaco, Knoxville, and Kathleen E. McGeechan, Kingston,
for Appellant.

G. Wilson Horde and Patricia L. McNutt, Oak Ridge; E. H. Rayson and
John C. Burgin, Jr., Knoxville, for the Appellees.
                         
Judge:INMAN

First Paragraph:

The plaintiff describes himself as a whistle blower, as that term has
come to be used, and seeks damages for his termination from employment
because he allegedly refused to participate in and keep silent about
certain allegedly illegal corporate activities.  The allegations were
denied by the defendants whose motion for summary judgment was
granted.  The plaintiff appeals and presents for review the issues of
(1) whether he was terminated for time card abuse and sexual
harassment or whether these reasons were pretextual, (2) whether a
common law cause of action for retaliatory discharge remains viable in
this jurisdiction, and (3) whether his termination constituted
outrageous conduct by the defendants.   Our review of the findings of
fact made by the trial Court is de novo upon the record of the trial
Court, accompanied by a presumption of the correctness of the finding,
unless the preponderance of the evidence is otherwise. Tenn. R. App.
P., Rule 13(d).  See, Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993).  We
will refer to the plaintiff as Hubrig, or as the appellant, or as the
plaintiff. This record is unusually prolix; prima facie, it appeared
to reflect a trial by affidavit, an impermissible use of Rule 56, see:
Womack v. Blue Cross-Blue Shield, 593 S.W.2d 294 (Tenn. 1980), but an
in-depth analysis reveals that the trial court correctly held that the
totality of the evidence demonstrates the absence of a genuine issue
of fact or law.  We therefore affirm the judgment.

URL:http://www.tba.org/tba_files/TCA/hubrig_ca3.WP6
Opinion-Flash

MARIO BOYD
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:


THOMAS C. FILA                      JOHN KNOX WALKUP
200 Jefferson Ave., Ste 925         Attorney General & Reporter
Memphis, TN   38103
                                    GEORGIA BLYTHE FELNER
                                    Counsel for the State
                                    450 James Robertson Pkwy.                               
                                    Nashville, TN  37243-0493
                
                                    WILLIAM L. GIBBONS
                                    District Attorney General

                                    J. ROBERT CARTER
                                    Asst. District Attorney General
                                    Criminal Justice Complex, Ste 301
                                    201 Poplar St.
                                    Memphis, TN   38103
                                        
Judge:PEAY

First Paragraph:

The petitioner was charged with first-degree murder and pled guilty to
second-degree murder pursuant to a negotiated plea agreement.  As part
of the plea bargain, he was sentenced as a Range II multiple offender
to thirty-five years incarceration.  Absent the plea agreement, the
petitioner would have been sentenced as a Range I offender.  A little
over a year after his plea, the petitioner filed for post-conviction
relief alleging that he had received ineffective assistance of counsel
and that his plea had not been knowingly and voluntarily entered. 
Following an evidentiary hearing, the court below denied relief and
this appeal as of right followed.  We affirm the court below.

URL:http://www.tba.org/tba_files/TCCA/boydma_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.                 
MICHAEL HARLAN BYRD

Court:TCCA

Attorneys: 

For Appellant:                  For Appellee: 

John E. Herbison                Charles W. Burson
2016 Eighth Ave. S.             Attorney General & Reporter
Nashville, TN  37204        
(on appeal)                     Elizabeth B. Marney
                                Assistant Attorney General
Shara Flacy                     450 James Robertson Parkway
Public Defender                 Nashville, TN  37243-0493
P.O. Box 1208               
Pulaski, TN  38478              Mike Bottoms
(at trial)                      District Attorney General
                                252 N. Military Avenue
                                Lawrenceburg, TN  38464
                                                 
Judge:WADE

First Paragraph:

The defendant, Michael Harlan Byrd, entered a best interest plea of no
contest to one count of attempted aggravated child abuse, a Class C
felony.  The trial court imposed a Range I, six-year sentence to be
served on Community Corrections.  On May 28, 1996, the trial court
revoked the community corrections sentence and ordered the defendant
to jail for failing to maintain employment and for failing to report
to his community corrections officer; however, threats made by the
defendant against an assistant district attorney were cited as the
basis for the revocation.

URL:http://www.tba.org/tba_files/TCCA/byrdmh_r&r.WP6
URL:http://www.tba.org/tba_files/TCCA/byrdmh_dis.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
PAM DAVIS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

GARY F. ANTRICAN                JOHN KNOX WALKUP 
District Public Defender        Attorney General & Reporter

RICKEY W. GRIGGS                GEORGIA BLYTHE FELNER
Assistant Public Defender       Assistant Attorney General
                                2nd Floor, Cordell Hull Building
JEANNIE KAESS                   425 Fifth Avenue North 
Assistant Public Defender       Nashville, TN  37243
P.O. Box 700
Somerville, TN  38068           ELIZABETH T.  RICE 
                                District Attorney General 

                                ED NEAL McDANIEL
                                Asst District Attorney General
                                300 Industrial Drive 
                                Selmer, TN  38375
                         

Judge:WOODALL

First Paragraph:

The Defendant, Pam Davis, appeals as of right from the judgment of the
McNairy County Circuit Court.  Defendant was convicted of issuing
worthless checks following a jury trial and was sentenced to eleven
(11) months, twenty-nine (29) days in the McNairy County Jail with the
sentence to be suspended upon payment of the check amount within
thirty (30) days.

URL:http://www.tba.org/tba_files/TCCA/davisp_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
AARON BENARD GRAY

Court:TCCA

Attorneys:

FOR THE APPELLANT:

CLIFFORD K. McGOWN, JR.
(On Appeal)
113 North Court Square, Ste. 204
P.O. Box 26
Waverly, TN  37185-0026

GEORGE MORTON GOOGE
(At Trial and Of Counsel on Appeal)
District Public Defender

VANESSA D. KING
(At Trial)
Assistant Public Defender
227 W. Baltimore Street
Jackson, TN  38301-6137
FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

DOUGLAS D. HIMES
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

JAMES G. (JERRY) WOODALL
District Attorney General

DONALD H. ALLEN
Assistant District Attorney General
225 Martin Luther King Drive
P.O. Box 2825
Jackson, TN  38302-2825                          

Judge:RILEY

First Paragraph:

The defendant, Aaron Benard Gray, was convicted by a Madison County
jury of aggravated robbery and aggravated assault.  The trial court
sentenced him to concurrent sentences of twelve (12) years as a Range
I offender for aggravated robbery and ten (10) years as a Range II
offender for aggravated assault.  These sentences were ordered to run
consecutively to a prior sentence.

URL:http://www.tba.org/tba_files/TCCA/grayab_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
BRIAN KEITH HARDING

Court:TCCA
                       
First Paragraph:

This Court released its opinion in the above-styled case, affirming
the judgment, on February 18, 1998.  Subsequently, counsel for the
appellant filed a timely motion to withdraw pursuant to Rule 14,
Tennessee Supreme Court Rules.  It appears that counsel's notice to
the appellant of her intent to withdraw was sent to an incorrect
address and was not received by the appellant.  Moreover, through
inadvertence, the Court did not enter an order acting on the motion. 
Subsequently, mandate was issued on April 30, 1998.

URL:http://www.tba.org/tba_files/TCCA/hardingb_ord.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
GREGORY R. MILLER

Court:TCCA

Attorneys:

FOR THE APPELLANT:

GUY T. WILKINSON
District Public Defender

RICHARD W. DeBERRY
Assistant Public Defender
117 N. Forrest Avenue
P.O. Box 663
Camden, Tennessee 38320-0663

FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

CLINTON J. MORGAN
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

G. ROBERT RADFORD
District Attorney General

JERRY W. WALLACE
Assistant District Attorney General
P.O. Box 637
Parsons, TN 38363-0637                          

Judge:RILEY

First Paragraph:

The defendant, Gregory R. Miller, appeals as of right his convictions
for reckless homicide and driving under the influence.  He was
sentenced to concurrent terms of three (3) years for reckless homicide
and eleven (11) months and twenty-nine (29) days for DUI, with ten
(10) days of the DUI sentence to be served in confinement.

URL:http://www.tba.org/tba_files/TCCA/millergr_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
DAVID L. OWENS

Court:TCCA

Attorneys:

FOR THE APPELLANT:

A.C. WHARTON (of counsel)
Shelby County Public Defender

WALKER GWINN (appeal only)
Assistant Public Defender
201 Poplar Ave., Suite 201
Memphis, TN 38103-1947

J.T. HARRIS (trial only)
22 North Second St., Suite 410
Memphis, TN 38103

FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

JANIS L. TURNER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

WILLIAM L. GIBBONS
District Attorney General

DAVID S. HENRY
Assistant District Attorney General
201 Poplar Ave., Suite 301
Memphis, TN 38103-1947
                          
Judge:RILEY

First Paragraph:

The defendant, David L. Owens, appeals as of right a jury conviction
of one (1) count of simple robbery.  He was sentenced as a Range II,
Multiple Offender, to nine (9) years.  The defendant contends that the
evidence adduced at trial was not sufficient to sustain a conviction
for robbery, and that he was prejudiced by a statement of the
prosecutor during closing argument.  After a review of the record, we
find the judgment of the trial court should be AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/owensdl_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
GAYLEN AUBREA SCOTT

Court:TCCA
                       
Judge:RILEY

First Paragraph:

The defendant, Gaylen Aubrea Scott, was convicted by a jury of three
(3) counts of driving without a valid driver's license and two (2)
counts of violating the vehicle registration law.  He was sentenced to
thirty (30) days for each of the driver's license violations.  One (1)
of the convictions was ordered to be served consecutively for an
effective sentence of sixty (60) days.  The sentences were suspended,
and the defendant was placed on unsupervised probation.  No sentence
was imposed for the registration law violations.

URL:http://www.tba.org/tba_files/TCCA/scottga_opn.WP6

Feel free to forward this Opinion-Flash on to any attorney you know of with an internet address, who is not a TBALink member. To Join TBALink - Http://www.tba.org/join.html/

Would you like to receive the TBALink Opinion-Flash each day via e-mail?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE
3) Leave the body of the message blank

Non TBA members are WELCOME to subscribe...it's free!!

Would you like to STOP receiving the TBALink Opinion-Flash?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: UNSUBSCRIBE
3) Leave the body of the message blank


© Copyright 1996-1997 Tennessee Bar Association