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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.
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- 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
- 00-New Opinons From TSC
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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
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
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
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
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
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
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
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
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
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
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