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TBALink Opinion-Flash
July 07, 1998 -- Volume #4 -- Number #105
What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.
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- 20-New Opinons From TCCA
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ROBERT HAROLD BOMELY, JR., v MID-AMERICA CORPORATION, d/b/a BURGER KING, and LARRY BRINTON, JR., DIRECTOR OF THE DIVISION OF WORKERS' COMPENSATION, TENNESSEE DEPARTMENT OF LABOR, SECOND INJURY FUND, Court:TSC For Appellee Bomely: For Appellee Mid-America Corporation, d/b/a Burger King: David H. Dunaway Dunaway & Associates Steven Johnson LaFollette Butler, Vines and Babb Knoxville For Appellant: John Knox Walkup Attorney General & Reporter Dianne Stamey Dycus Senior Counsel Nashville Judge: DROWOTA, J. First Paragraph: In this workers' compensation action the Second Injury Fund, defendant-appellant, has appealed from a judgment of the Chancery Court of Knox County which found the employee, Robert Bomely, plaintiff-appellee, to be totally and permanently disabled. The award was apportioned 65 percent to the employer, Mid-America Corporation, d/b/a Burger King, defendant-appellee, and 35 percent to the Second Injury Fund under Tenn. Code Ann. S 50-6-208(b). The trial court assessed the employer's liability based on 400 weeks of benefits and held the Second Injury Fund liable for the remaining 938 weeks of benefits (until the employee reached the age of 65). Thus, the employer's liability was limited to 65 percent of 400 weeks rather than 65 percent of the total number of weeks to age 65. We transferred this case from the Special Workers' Compensation Appeals Panel to decide whether it was proper to have limited the employer's liability in this fashion. After carefully examining the record before us and considering the relevant authorities, we conclude that the award should be apportioned between the employer and the Second Injury Fund based on the total number of weeks to age 65 rather than limiting the employer's liability to a percentage of 400 weeks. Accordingly, that portion of the trial court's judgment is reversed. We shall also address (1) whether an award of permanent total disability is subject to the monetary cap imposed by the 400 week maximum total benefit provision of Tenn. Code Ann. S 50-6-102(a)(6) and (2) whether the apportionment of benefits between the employer and the Second Injury Fund in this case is controlled by subsection (a) or (b) of Tenn. Code Ann. S 50-6-208. URL:http://www.tba.org/tba_files/TSC/bomely2_opn.WP6
STATE OF TENNESSEE, v BARBARA BYRD,
Court:TSC
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, J.
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, EX REL. ROBERT J. EARHART, ET AL.,
v
CITY OF BRISTOL, TENNESSEE,
Court:TSC
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, J.
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
GENERAL ELECTRIC COMPANY, v PROCESS CONTROL COMPANY,
Court:TSC
FOR PLAINTIFF-RESPONDENT: FOR DEFENDANT-PETITIONER:
J. Randolph Bibb, Jr. Clinton V. Butler, Jr.
Nashville Jerry D. Kizer, Jr.
Dale Conder, Jr.
Thomas G. Cooper Jackson
Boston, Massachusetts
Judge: HOLDER, J.
First Paragraph:
This case comes to us on a certified question of law. The
plaintiff, General Electric Company ("G.E."), filed this action
for contribution against Process Control Company ("Process
Control"). Process Control filed a motion to dismiss and/or
motion for summary judgment arguing that Tennessee law does not
permit a right of contribution in this case. The district court
entered an order requesting this Court to address the following
certified question of law:
In actions that accrue after the decision in McIntyre v.
Balentine, under what circumstances is a claim for contribution
appropriate under Tennessee Law?
URL:http://www.tba.org/tba_files/TSC/generale_opn.WP6
SUPREME COURT OF TENNESSEE
STATE LIST FOR PERMISSION TO APPEAL
July 13, 1998
Court:TSC - Rules
URL:http://www.tba.org/tba_files/TSC_Rules/statelst_wpd.WP6
KENNETH M. BESS and THOMAS R. CUMMINGS, JR.,
v
ASSOCIATED BROKERS OF TENNESSEE, INC.,
Court:TCA
D. Alexander Fardon; Harwell Howard Hyne
Gabbert & Manner, P.C. of Nashville
For Appellants
Richard M. Smith, Kenneth S. Schrupp
Smith & Cashion, PLC of Nashville
For Appellee
Judge: W. FRANK CRAWFORD
First Paragraph:
This appeal involves a dispute concerning distribution to
stockholders in a closely held corporation.
Plaintiff-stockholders, Kenneth M. Bess (Bess) and Thomas R.
Cummings, Jr., (Cummings) appeal from the judgment of the trial
court denying the relief sought against defendant, Associated
Brokers of Tennessee, Inc. (ABT). Plaintiffs' complaint
alleges that by virtue of the stockholder agreement dated May 3,
1990, between them and William W. Johnson (Johnson) and ABT, Bess
became a 25 percent shareholder of ABT and Cummings became a 20
percent shareholder of ABT. Plaintiffs allege that in late 1994,
Johnson caused ABT to sell all or substantially all of its assets
to Acosta Sales Company, Inc. (Acosta). The plaintiffs aver
that although they were directors and shareholders, they were not
informed of the transaction until it had been consummated and
were not given an opportunity to vote on the transaction.
Plaintiffs further allege that since the sale of the assets to
Acosta, ABT has been diverting all of the payments made by Acosta
to Johnson, who is not performing any services for ABT.
Plaintiffs aver that as shareholders, they were entitled to vote
pursuant to T.C.A. S 48-22-102 (1995) concerning the sale of the
assets, and further that they were not advised of their rights as
dissenters as provided in T.C.A. SS 48-23-201, et seq. (1995).
URL:http://www.tba.org/tba_files/TCA/besskenn_opn.WP6
JACK WAYNE BURSACK, v. LAWRENCE D. WILSON,
Court:TCA
LIONEL R. BARRETT, JR.
Washington Square Two - Suite 418
222 Second Avenue, North
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFF/APPELLANT
G. KLINE PRESTON, IV
Washington Square Two - Suite 416
222 Second Avenue, North
Nashville, Tennessee 37201-1652
ATTORNEY FOR DEFENDANT/APPELLEE
Judge: WILLIAM B. CAIN
First Paragraph:
In this case plaintiff Jack Wayne Bursack sues defendant Lawrence
D. Wilson for alleged professional negligence in legal
representation of the plaintiff in prior litigation before the
Circuit Court of Maury County, Tennessee.
URL:http://www.tba.org/tba_files/TCA/bursackj_opn.WP6
STEPHEN EARL CRABTREE, v. NANCY CHOPPIN CRABTREE,
Court:TCA
Michael W. Binkley, Nashville, Tennessee.
Attorney for Plaintiff/Counter-Defendant/Appellant.
Edward M. Yarbrough,
HOLLINS, WAGSTER & YARBROUGH, P.C., Nashville, Tennessee.
Attorney for Defendant/Counter-Plaintiff/Appellee.
Judge: FARMER, J.
First Paragraph:
The parties to this divorce case, Stephen Earl Crabtree (Husband)
and Nancy Choppin Crabtree (Wife), were married for approximately
23 years. The trial court entered a final decree of divorce in
July 1997. Husband has appealed from the decree, citing error in
the trial court's decision to award alimony in futuro and
attorney's fees to Wife. Wife has raised an additional issue
regarding child support. Upon review of the record, we affirm as
to the awards of alimony in futuro and attorney's fees to Wife
and find it necessary to remand this cause to the trial court
regarding the award of child support. We set forth our reasons
below.
URL:http://www.tba.org/tba_files/TCA/crabtres_opn.WP6
FORD CONSUMER FINANCE v AMBROSE W.J. CLAY,
Court:TCA
For Plaintiff/Appellee: For Defendant/Appellant:
No Appearance Ambrose W.J. Clay
Pro Se
Judge: WILLIAM C. KOCH
First Paragraph:
This is an appeal involves a maker's liability on a promissory
note. The Chancery Court for Davidson County, following a bench
trial, awarded the holder of the note a $27,523.47 judgment. The
maker of the note appealed to this court and then filed a Chapter
7 bankruptcy petition in the United States Bankruptcy Court for
the Middle District of Tennessee. The maker of the note has now
informed this court that the debt arising from the judgment on
the note has been discharged, relieving him from further personal
liability on the note. Because the judgment on the note is now
void by force of federal law, we vacate the judgment below and
remand this case with directions that it be dismissed.
URL:http://www.tba.org/tba_files/TCA/fordcon_opn.WP6
JOHNNY GREENE, v TENNESSEE DEPARTMENT OF CORRECTION,
Court:TCA
For Plaintiff/Appellant: For Defendant/Appellee:
Douglas A. Trant John Knox Walkup
Knoxville, Tennessee Attorney General and Reporter
Patricia C. Kussmann
Assistant Attorney General
Judge: WILLIAM C. KOCH, JR.,
First Paragraph:
This appeal involves a dispute between a prisoner and the
Department of Correction concerning the Department's calculation
of his sentence reduction credits. After spending twenty-three
years in prison, the prisoner sought a declaratory order from the
Department that he had earned sufficient sentence reduction
credits to be entitled to immediate release. When the Department
declined to issue the requested order, the prisoner filed a
petition for judicial review in the Chancery Court for Davidson
County. Both the prisoner and the Department filed summary
judgment motions, and the trial court granted the Department's
motion and dismissed the prisoner's petition. On this appeal,
the prisoner asserts that the trial court erred because, under
the undisputed facts, he is entitled to a judgment as a matter of
law. We have determined that the trial court's decision to grant
the Department's summary judgment motion should be affirmed
because the prisoner has failed to demonstrate that he is
entitled to relief on any of his claims.
URL:http://www.tba.org/tba_files/TCA/greenej_opn.WP6
PHYLLIS ANN FRAZIER HAMBY,
v.
JOSEPH DEWIGHT HAMBY and ANTHONY HAMBY,
Court:TCA
GRACE E. DANIELL, STARR & DANIELL, Chattanooga, for
Plaintiff-Appellant.
CHARLES B. BURNS, JR., VARNELL, BURNS & SHARP, P.C., Cleveland,
for Defendant-Appellee Anthony Hamby.
ROGER E. JENNE, JENNE, SCOTT & JENNE, Cleveland, for
Defendant-Appellee Joseph Dewight Hamby.
Judge: Franks, J.
First Paragraph:
In this divorce action, the wife appeals from the Trial Court's
Order of child support and the evaluation of the marital estate
and its distribution. Husband and wife were married in 1976 and
have two minor children. They separated in August 1994, and at
the time of trial the husband was 43 and the wife was age 40.
URL:http://www.tba.org/tba_files/TCA/hambyp_opn.WP6
ROBERT T. IRVIN,
v
FAITH JOHNSON, an employee of The Tennessee Management Company,
Inc. (TAMCO); THE TENNESSEE MANAGEMENT COMPANY, INC. (TAMCO),
a.d.b.a. THE SOUTH CENTRAL VILLAGE APARTMENTS,
Court:TCA
ROBERT T. IRVIN, Pro Se
P. O. Box 1636
Clarksville, Tennessee 37041-1636
JAMES D. KAY, JR.
BRIDGETT A. WOHLPART
Suite 340M, Washington Square Two
222 Second Avenue North
Nashville, Tennessee 37069
ATTORNEYS FOR DEFENDANTS/APPELLEES
Judge: WILLIAM B. CAIN
First Paragraph:
This case represents a pro se plaintiff's appeal from a trial
court's order granting defendant/appellee's motion to dismiss
pursuant to Tenn. R. Civ. P. 12.02(4)(5)(6). Appellant's
complaint asserted "perjury" as it's basis, alleging that
defendants, Faith Johnson, Tamco, et al., committed perjury in
appellant's previous case in said trial court, Irvin v. Tamco,
Inc., et al., docket number C10-813.
URL:http://www.tba.org/tba_files/TCA/irvinr_opn.WP6
HELEN S. ROGERS, v THOMAS E. WATTS, JR.,
Court:TCA
For Plaintiff/Appellee: For Defendant/Appellant:
Helen Sfikas Rogers Thomas E. Watts, Jr.
Jones & Rogers Pro Se
Nashville, Tennessee
Judge: WILLIAM C. KOCH, JR
First Paragraph:
This appeal involves another chapter in a lingering, acrimonious
dispute between two Nashville lawyers stemming from a failed
settlement of a case in federal court. After one of the lawyers
abandoned his third-party complaint against the other lawyer for
fraudulent misrepresentation, the other lawyer filed a malicious
prosecution action in the Circuit Court for Davidson County.
When the trial court dismissed the complaint on the ground that
it was premature, the prevailing lawyer sought Tenn. R. Civ. P.
11 sanctions against the lawyer whose malicious prosecution claim
had been dismissed. The trial court declined to grant sanctions,
and the lawyer seeking sanctions has appealed. We have
determined that the record supports the trial court's decision
not to award sanctions and, therefore, affirm the trial court's
decision.
URL:http://www.tba.org/tba_files/TCA/rogershs_opn.WP6
JACQUELINE SUE ROGERS v SAMUEL L. BANKS and CATHY J. STANCIL
Court:TCA
E. BLAKE MOORE and JOHN B. BENNETT OF CHATTANOOGA FOR APPELLANTS
KATHRYN R. LEIDERMAN OF JASPER and JOHN O. WIGGINS OF RINGGOLD,
GEORGIA FOR APPELLEE
Judge: Goddard, P.J.
First Paragraph:
Samuel L. Banks, a doctor, and Cathy J. Stancil, a nurse, appeal
a jury verdict rendered against them in favor of their former
patient, Jacqueline Sue Rogers. Ms. Rogers brought two actions
of medical malpractice in the Hamilton County Circuit Court. One
action was brought against Dr. Banks, her treating physician.
The other action was brought against Nurse Stancil. Nurse
Stancil performed the majority of the procedure in question.
Judge Robert M. Summitt denied motions for directed verdict after
Ms. Rogers presented her case and again after Dr. Banks and Nurse
Stancil presented their case. Both actions were submitted to the
jury. The jury returned a general verdict against both Dr. Banks
and Nurse Stancil for $60,000. Dr. Banks and Nurse Stancil both
filed motions for judgments notwith- standing the verdict as well
as motions for a new trial. Judge Summitt overruled these
motions and upheld the jury award. We now reverse the judgment
below and dismiss both suits with prejudice.
URL:http://www.tba.org/tba_files/TCA/rogersj_opn.WP6
STATE OF TENNESSEE ON RELATION OF ERVIN SMITH, and ERVIN SMITH,
individually,
v
L. B. FRANKLIN and ALEX RICHMOND, CITY OF CARTHAGE, TENNESSEE, a
municipal corporation, MAYOR DAVID BOWMAN,
Court:TCA
Stephen L. Edwards, #3489
The Pilcher Bldg., Suite 100
144 Second Avenue, North
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFFS/APPELLEES
Jack W. Robinson, Jr., #11656 Jacky O. Beller, #3157
230 4th Avenue No., 3rd Floor 212 Main Street
P.O. Box 198888 P.O. Box 332
Nashville, Tennessee 37219-8888 Carthage, Tennessee 37030
Derrick C. Smith, #13961
300 James Robertson Parkway
Nashville, Tennessee 37201-1107
ATTORNEYS FOR DEFENDANTS/APPELLANTS
Judge: HENRY F. TODD
First Paragraph:
The plaintiff, Ervin Smith, has appealed from the judgment of the
Trial Court as to his rights in regard to an alleged public
right-of-way on property adjoining plaintiff's land.
URL:http://www.tba.org/tba_files/TCA/statesmi_opn.WP6
IN RE: JASON RYAN STEPHENS PAMELA RENEE STEPHENS
v
JAMES CALLAWAY,
Court:TCA
PETER V. HALL
8 Lincoln Square
1535 West Northfield Boulevard
Murfreesboro, Tennessee 37129
ATTORNEY FOR PETITIONER/APPELLANT
W. KENT COLEMAN
14 Public Square North
Murfreesboro, Tennessee 37130
ATTORNEY FOR RESPONDENT/APPELLEE
Judge: WILLIAM B. CAIN
First Paragraph:
This appeal involves a biological father's obligation to support
his thirteen year old son.
Appellant Pamela Renee Stephens is the mother of Jason Ryan
Stephens age thirteen years and appellee James Callaway is the
natural father of Jason Ryan Stephens.
URL:http://www.tba.org/tba_files/TCA/stephens_opn.WP6
DAVID K. WACHTEL, JR.,
v
THE WESTERN SIZZLIN CORPORATION f/k/a FRANCHISEE ACQUISITION
CORPORATION,
v
DAVID K. WACHTEL, JR., AND RESTAURANT MANAGEMENT SERVICES, INC.,
Court:TCA
JON D. ROSS
EDMUND L. CAREY, JR.
2000 First Union Tower
150 Fourth Avenue North
Nashville, Tennessee 37219
Attorneys for Plaintiff/Appellant
MICHAEL L. DAGLEY
OVERTON THOMPSON III
STEPHEN H. PRICE
424 Church Street, Suite 1900
Nashville, Tennessee 37219
Attorneys for Defendant/Appellee
Judge: BEN H. CANTRELL
First Paragraph:
This breach of contract case is before us on a Rule 54.02, Tenn.
R. Civ. Proc. appeal. The only question for our decision is
whether the trial court erred in granting the defendant's motion
for partial summary judgment on the plaintiff's claim for certain
consequential damages arising from the defendant's breach of
contract. We reverse the trial court.
URL:http://www.tba.org/tba_files/TCA/wachtedk_opn.WP6
JOY WALLS, Individually and as Surviving Spouse of Decedent
WENDELL M. GOODWIN
v.
ACandS, INC., et al.
Court:TCA
BRUCE HILL and MIKE G. NASSIOS OF KNOXVILLE; JOHN A. DAY and
DONALD CAPPARELLA OF NASHVILLE FOR APPELLANT
DWIGHT E. TARWATER, THOMAS A. BICKERS, ANDREW R. TILLMAN and
ROBIN K. LONGMIRE OF KNOXVILLE FOR APPELLEE OWENS-CORNING
KATHY K. CONDO OF PITTSBURGH, PA and F. SCOTT MILLIGAN OF
KNOXVILLE FOR APPELLEE PITTSBURGH CORNING CORPORATION
Judge: Goddard, P.J.
First Paragraph:
This suit was initiated by Plaintiff-Appellant, Wendell Goodwin,
against Defendants-Appellees, Pittsburgh Corning Corporation,
Owens-Corning Fiberglas Corporation, and a number of other
Defendants, seeking damages because of an illness Mr. Goodwin
contracted--specifically a stomach cancer known as peritoneal
mesothelioma--resulting from his occupational exposure to
asbestos products manufactured and distributed by the Defendants,
including Pittsburgh Corning and Owens-Corning. The Trial Court,
in response to the answers supplied by the jury through special
interrogatories hereinafter set out, entered a judgment in favor
of the Defendants because the Plaintiff's claim was barred by the
applicable statute of repose, T.C.A. 29-28-103(a).
URL:http://www.tba.org/tba_files/TCA/wallsj_opn.WP6
WILLIAM P. WILLIAMS,v WANDA C. WILLIAMS,
Court:TCA
CLARA WILLIS BYRD
105 South Cumberland Street
Lebanon, Tennessee 37087
Attorney for Plaintiff/Appellee
CLARK LEE SHAW
2525 Lebanon Road
Nashville, Tennessee 37214
Attorney for Defendant/Appellant
Judge: BEN H. CANTRELL
First Paragraph:
This is a child support case. The Chancery Court of Wilson
County set the mother's obligation of support at $723.00 per
month. The mother appeals and asserts that the evidence
preponderates against the trial court's finding. We affirm the
judgment below.
URL:http://www.tba.org/tba_files/TCA/williawp_opn.WP6
PATRICK ALAN WOLFE, v TERRI LEE WOLFE,
Court:TCA
For Appellant For Appellee
D. MITCHELL BRYANT J. REED DIXON
Cleveland, Tennessee Sweetwater, Tennessee
Judge: Susano, J.
First Paragraph:
In this post-divorce case, the trial court denied the petition of
Terri Lee Wooten, formerly Wolfe ("Mother"), seeking sole custody
of the parties' daughter, Kelsea Wolfe, age five and a half. In
the same order, the court granted the counterclaim of Patrick
Alan Wolfe ("Father") by modifying Mother's visitation rights.
Mother appealed, arguing that the trial court abused its
discretion in failing to change the child's custody. She also
claims that the court erred in modifying the visitation schedule
set forth in the divorce judgment.
URL:http://www.tba.org/tba_files/TCA/wolfepa_opn.WP6
STATE OF TENNESSEE, v MICHAEL J. ADKINS,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL J. GATLIN JOHN KNOX WALKUP
P.O. Box 27331 Attorney General and Reporter
Memphis, TN 38167-0331
JANIS L. TURNER
Assistant Attorney General
425 5th Avenue North
Nashville, TN 37243
JOHN W. PIEROTTI
District Attorney General
JAMES M. LAMMEY
Assistant District Attorney General
Criminal Justice Complex, Ste. 301
201 Poplar Street
Memphis, TN 38103
Judge: DAVID H. WELLES
First Paragraph:
The Defendant, Michael J. Adkins, appeals as of right pursuant to
Rule 3 of the Tennessee Rules of Appellate Procedure. He entered
a plea of guilty to the offense of voluntary manslaughter. The
agreed sentence for this Class C felony was three years, the
minimum in the range for a standard offender. The manner of
service of the sentence was left to the discretion of the trial
judge. The judge ordered that six months of the sentence be
served in the local workhouse, followed by six months of
intensive probation, with the balance of the sentence to be
served on regular probation. The Defendant appeals from the
trial judge's denial of full probation. We affirm the judgment
of the trial court.
URL:http://www.tba.org/tba_files/TCCA/adkinsmj_opn.WP6
STATE OF TENNESSEE, v JOHNNY AKINS,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
A C Wharton, Jr. John Knox Walkup
Shelby County Public Defender Attorney General & Reporter
Walker Gwinn Janis L. Turner
Assistant Public Defender Counsel for the State
201 Poplar Avenue, Suite 201 Criminal Justice Division
Memphis, TN 38103 Cordell Hull Bldg., Second Floor
(On Appeal) Nashville, TN 37243-0493
Dianne Thackery William L. Gibbons
Assistant Public Defender District Attorney General
201 Poplar Avenue, Suite 201
Memphis, TN 38103 Jerry Harris
(At Trial) James M. Lammey Assistant
District Attorneys General
201 Poplar Avenue, Suite 301
Memphis, TN 38103
Judge: PAUL G. SUMMERS
First Paragraph:
Johnny Akins was found guilty by a jury of aggravated burglary.
He was sentenced to fifteen years in Tennessee Department of
Correction. The trial court denied his motion for a new trial.
He appeals. The sole issue is whether the evidence is sufficient
to support his conviction. We affirm the judgment of conviction.
URL:http://www.tba.org/tba_files/TCCA/akinsjoh_opn.WP6
FREDERICK ORLANDO BLACK,v STATE OF TENNESSEE,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
CHRISTOPHER VAN RIPER JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
300 Main St., Ste. 200
Clinton, TN 37716 TODD R. KELLEY
Asst. Attorney General
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
JAMES N. RAMSEY
District Attorney General
JAN HICKS
Asst. District Attorney General
127 Anderson County Courthouse
Clinton, TN 37716
Judge: CURWOOD WITT
First Paragraph:
The petitioner, Frederick Orlando Black, appeals the Anderson
County Criminal Court's denial of his petitions for
post-conviction relief. In 1983, the petitioner pleaded guilty
to malicious shooting. In 1988, he pleaded guilty to aggravated
assault. Presently, he is serving a federal sentence for a drug
offense. In his post-conviction petitions, he alleges his
federal sentence was enhanced due to the 1983 and 1988 Anderson
County convictions. He seeks to have the convictions set aside
based on various infirmities. The court below found the
petitions barred by the statute of limitations and dismissed the
actions. The petitioner appeals the dismissals, claiming this
court should find error (1) in the trial court's failure to make
findings pursuant to Burford v. State, 845 S.W.2d 204 (Tenn.
1995) and Sands v. State, 903 S.W.2d 297 (Tenn. 1995), and (2) in
failing to find the statute of limitations deprived the
petitioner of due process. Having reviewed the record, we find
no error and affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/blackfo_opn.WP6
FRANCES BLAYLOCK, v STATE OF TENNESSEE,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
LAURA RULE HENDRICKS JOHN KNOX WALKUP
Eldridge, Irving & Hendricks Attorney General and Reporter
606 W. Main Street
Knoxville, TN 37901-0084 TODD R. KELLEY
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
JERRY N. ESTES
District Attorney General
STEVE HAWKINS
10th Judicial District
P. O. Box 647
Athens, TN 37303
Judge: JERRY L. SMITH
First Paragraph:
Appellant Frances Blaylock appeals the trial court's denial of
her petition for post-conviction relief. Appellant presents the
following issue for our consideration on this appeal: whether
the trial court erred in dismissing Appellant's petition for
post-conviction relief. After a review of the record, we reverse
the judgment of the trial court and remand with directions to
that court to consider Appellant's allegation of ineffective
assistance of trial counsel.
URL:http://www.tba.org/tba_files/TCCA/blaylofr_opn.WP6
BILLY JOE BOURFF v STATE OF TENNESSEE
Court:TCCA
For the Appellant: For the Appellee:
Douglas A. Trant, John Knox Walkup
900 S. Gay Street Attorney General & Reporter
Suite 1502
Knoxville, TN. 37902 Marvin E. Clements, Jr.
(on post conviction) Assistant Attorney General
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN. 37243-0493
William Paul Phillips
District Attorney General
Michael O. Ripley
Assistant District Attorney
P.O. Box 323
Jacksboro, TN. 37757
Judge: WILLIAM M. BARKER
First Paragraph:
The appellant, Billy Joe Bourff, appeals as of right the Campbell
County Criminal Court's dismissal of his petition for
post-conviction relief. We affirm the judgment of the trial
court.
URL:http://www.tba.org/tba_files/TCCA/bourffbb_opn.WP6
STATE OF TENNESSEE, v. ANDERSON D. CURRY,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
A C WHARTON, JR. JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
SHERRY BROOKS CLINTON J. MORGAN
Asst. Public Defender Counsel for the State
-At Trial- 425 Fifth Ave., North
Cordell Hull Bldg., Second Fl.
WALKER GWINN Nashville, TN 37243-0493
Asst. Public Defender
201 Poplar Ave., Suite 201 JOHN W. PIEROTTI
Memphis, TN 38103 District Attorney General
-On Appeal-
THOMAS HOOVER
Asst. District Attorney General
201 Poplar Ave., Suite 301
Memphis, TN 38103
Judge: JOHN H. PEAY,
First Paragraph:
The defendant was indicted in December 1996 for rape of a child.
A Shelby County jury found him guilty and the trial court
sentenced him to twenty years in the Tennessee Department of
Correction. In this appeal as of right, the defendant argues
that the evidence is insufficient to support his conviction and
that the trial court erred when it admitted into evidence a chart
depicting the victim's injuries. The defendant also argues that
his sentence is excessive. After a review of the record and
applicable law, we affirm the judgment of the court below.
URL:http://www.tba.org/tba_files/TCCA/curryad_opn.WP6
STATE OF TENNESSEE, v. SHANE PILLOW,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
JERALD M. CAMPBELL, JR. JOHN KNOX WALKUP
-and- Attorney General & Reporter
L. L. HARRELL, JR. 425 Fifth Ave., North
N.W. Court Sq. Nashville, TN 37243-0497
Trenton, TN 38382
ELIZABETH T. RYAN
Asst. Attorney General
425 Fifth Ave., North
Nashville, TN 37243-0493
CLAYBURN L. PEEPLES
District Attorney General
110 College St., Suite 200
Trenton, TN 38382-1841
GARRY G. BROWN
Asst. District Attorney General
110 College St., Suite 200
Trenton, TN 38382-1841
Judge: JOHN H. PEAY
First Paragraph:
The defendant was convicted of second-degree murder and
aggravated assault. The trial court sentenced him to
twenty-three years confinement for second-degree murder and five
years confinement for aggravated assault, to run concurrently.
In this appeal as of right, the defendant presents the following
issues for review: I. whether the evidence contained in the
record is insufficient, as a matter of law, to support his
convictions;
II. whether the trial court erred by denying his motion to
suppress statements made to law enforcement officers;
III. whether the trial court abused its discretion by permitting
the State to reopen its case-in-chief to identify the victim's
body;
IV. whether the sentence imposed by the trial court is
excessive; and
V. "whether any other reversible error was committed by the
trial court."
Finding no merit in the defendant's contentions, we affirm.
URL:http://www.tba.org/tba_files/TCCA/pillows_opn.WP6
JAMES POLK, v. STATE OF TENNESSEE,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
HERSHELL D. KOGER JOHN KNOX WALKUP
131 North First Street Attorney General and Reporter
P.O. Box 1148
Pulaski, TN 38478 CLINTON J. MORGAN
Assistant Attorney General
Cordell Hull Building, Second Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
T. MICHAEL BOTTOMS
District Attorney General
JESSE DURHAM
Assistant District Attorney General
P.O. Box 459
Lawrenceburg, TN 38464
Judge: LEE MOORE
First Paragraph:
The petitioner, James Polk, appeals the trial court's denial of
his petition for post-conviction relief. In 1994, the petitioner
was convicted of aggravated robbery and sentenced as a standard
offender to twelve years in the Tennessee Department of
Correction. His conviction was affirmed on direct appeal to this
Court. State v. James Polk, No. 01C01-9410-CC-00369 (Tenn. Crim.
App., at Nashville, Nov. 21, 1995). In this post-conviction
petition, the petitioner's sole issue is that he was denied
effective assistance of counsel. An evidentiary hearing was held
on July 8, 1997, and the petitioner was denied post-conviction
relief. We affirm the judgment.
URL:http://www.tba.org/tba_files/TCCA/polk_opn.WP6
STATE OF TENNESSEE, v. LAWRENCE RALPH, JR.,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
AUBREY L. HARPER JOHN KNOX WALKUP
114 North College Street Attorney General and Reporter
P.O. Box 588
McMinnville, TN 37111-0588 JANIS L. TURNER
Assistant Attorney General
425 5th Avenue North
Nashville, TN 37243
WILLIAM LOCKE
District Attorney General
Professional Building
McMinnville, TN 37110
Judge: DAVID H. WELLES
First Paragraph:
The Defendant, Lawrence "Gomer" Ralph, Jr., appeals as of right
pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure.
He was convicted on a Warren County jury verdict of burglary of
an automobile, theft over $1,000, failure to yield to emergency
lights, evading arrest, resisting arrest, violation of his
habitual traffic offender status, and seventh-offense DUI. He
was sentenced as a multiple Range II offender to four years for
burglary of an automobile, seven years for theft over $1,000, and
four years for the habitual traffic offender violation. For the
misdemeanor offenses, he was sentenced to thirty days in the
county jail for failure to yield to emergency lights, nine months
at 75% for evading arrest, four months at 75% for resisting
arrest, and three hundred days for DUI. The sentences for theft
over $1,000, failure to yield, and resisting arrest were ordered
to be served concurrent to each other but consecutive to the
other sentences, all of which were ordered to run consecutive to
each other for an effective sentence of sixteen years and eight
months.
URL:http://www.tba.org/tba_files/TCCA/ralphlaw_opn.WP6
URL:http://www.tba.org/tba_files/TCCA/ralphl_con.WP6
STATE OF TENNESSEE, V GEORGE ROSE,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
TONY N. BRAYTON JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
201 Poplar, Suite 2-01
Memphis, TN 38103 DOUGLAS D. HIMES
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
WILLIAM L. GIBBONS
District Attorney General
CHARLES W. BELL
Assistant District Attorney
201 Poplar Avenue - Third Floor
Memphis, TN 38103
Judge: JERRY L. SMITH
First Paragraph:
Appellant George S. Rose was convicted on April 16, 1997 by a
jury in the Shelby County Criminal Court of possession of a
controlled substance, to wit: cocaine, with intent to sell. As
a Range I standard offender, Appellant was sentenced to 210 days
incarceration in the Shelby County Correctional Center and five
years probation. The trial court also imposed a $2,000.00 fine.
Appellant presents the following issue for our consideration on
this direct appeal: whether the trial court denied Appellant his
constitutional right to trial by jury by refusing to instruct the
jury on the lesser included offense of simple possession of a
controlled substance or casual exchange. After a review of the
record, we affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/rosegeor_opn.WP6
URL:http://www.tba.org/tba_files/TCCA/rosegerc_con.WP6
STATE OF TENNESSEE V EDWARD SHANE RUST,
Court:TCCA
For the Appellant: For the Appellee:
Margaret C. Lamb John Knox Walkup
Asst. Public Defender Attorney General and Reporter
605 East Carroll Street
Post Office Box 260 Janis L. Turner
Tullahoma, TN 37388 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Campbell Smoot Nashville, TN 37243 0493
District Public Defender
C. Michael Layne
District Attorney General
P. O. Box 147
Manchester, TN 37355
Judge: David G. Hayes
First Paragraph:
The appellant, Edward Shane Rust, was indicted by a Coffee County
Grand Jury for the offenses of arson of personal property and
reckless endangerment. Following a jury trial, the appellant was
found guilty of arson of personal property, a class E felony, and
received a two year sentence in the Department of Correction.
The appellant was found not guilty of reckless endangerment. In
this appeal as of right, the appellant contends:
I. The evidence is insufficient to support a conviction for
arson of personal property;
II. The sentence imposed by the trial court is excessive; and
III. The trial court should have granted an alternative
sentence.
URL:http://www.tba.org/tba_files/TCCA/rustes_opn.WP6
RICKY RUTLEDGE V. STATE OF TENNESSEE,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT H. STOVALL, JR. JOHN KNOX WALKUP
P.O. Box 160 Attorney General and Reporter
Charlotte, TN 37036
CLINTON J. MORGAN
Assistant Attorney General
425 5th Avenue North
Nashville, TN 37243-0493
MIKE McCOWN
District Attorney General
ROBERT G. CRIGLER
Assistant District Attorney General
One Public Square, Suite 300
Shelbyville, TN
Judge: DAVID H. WELLES
First Paragraph:
The Petitioner, Ricky Rutledge, appeals from the order of the
trial court dismissing his Petition for Post Conviction Relief.
Petitioner sought post conviction relief asserting that he
received ineffective assistance of counsel prior to entering his
plea of guilt. In addition, Petitioner maintains that because of
counsel's deficient representation, his guilty plea was not
knowingly, intelligently, and voluntarily given. Following an
evidentiary hearing, the trial court denied relief and we affirm.
URL:http://www.tba.org/tba_files/TCCA/rutledri_opn.WP6
STATE OF TENNESSEE V ROBERT ALAN SMITH,
Court:TCCA
For the Appellant: For the Appellee:
Michael R. Jones John Knox Walkup
District Public Defender Attorney General and Reporter
Russel A. Church Daryl J. Brand
Assistant Public Defender Assistant Attorney General
109 South Second Street 425 Fifth Avenue North
Clarksville, TN 37040 Nashville, TN 37243-0493
John Wesley Carney, Jr.
District Attorney General
William M. Cloud, Jr.
Assistant District Attorney
204 Franklin Street, Suite 200
Clarksville, TN 37040
Judge: William M. Barker
First Paragraph:
The appellant, Robert Alan Smith, appeals the judgment of the
Montgomery County Circuit Court revoking his probation and
ordering that the remainder of his sentence be served in the
Department of Correction. We affirm the judgment of the trial
court pursuant to Rule 20 of the Tennessee Court of Criminal
Appeals. In 1992, appellant entered guilty pleas to three counts
of sexual battery and received an effective sentence of six
years. The trial court suspended those sentences and placed
appellant on probation for six years. In 1994, appellant pled
guilty to simple possession of marijuana. He was placed on
probation for eleven months, twenty-nine days, consecutive to the
six year sentence. The record reflects that appellant's
probation was revoked in August of 1994. He was ordered to serve
60 days in confinement and then returned to intensive probation.
URL:http://www.tba.org/tba_files/TCCA/smithra_opn.WP6
STATE OF TENNESSEE V BENJAMIN SNYDER,
Court:TCCA
FOR THE APPELLANT FOR THE APPELLEE
C. Edward Fowlkes John Knox Walkup
172 Second Avenue N., Suite 214 Attorney General and Reporter
Nashville, TN 37201-1908 425 Fifth Avenue, North
Nashville, TN 37243
Karen M. Yacuzzo
Assistant Attorney General
425 Fifth Avenue, North
Nashville, TN 378243
Bernard McEvoy
Asst District Attorney General
Washington Square, Suite. 500
Second Avenue N.
Nashville, TN 37201-1649
Judge: L. T. LAFFERTY,
First Paragraph:
The defendant, Benjamin S. Snyder, appeals as a matter of right
the sentence imposed by the Davidson County Probate Court. In
counts one and two, the defendant was charged with the offense of
vehicular homicide involving the death of Gregory Flair. In
counts three and four, the defendant was charged with the offense
of reckless endangerment involving two passengers in the
operation of a motor vehicle. The defendant entered a plea of
guilty to the offense of vehicular homicide due to reckless
conduct as charged in count two of the indictment. Counts one,
three and four were dismissed. After a sentencing hearing, the
trial court sentenced the defendant to five years in the
Corrections Corporation of America Facility. The defendant was
ordered to serve six months and then be placed on probation for
four years, six months. There were other conditions imposed on
the defendant during the period of probation. In his appeal, the
defendant raises two issues; (1) the trial court erred as a
matter of fact and law in applying enhancement factor #3 "the
offense involved more than one victim," and (2) the trial court
erred in sentencing the defendant to five years instead of the
presumptive minimum of three years. Upon a close review of the
record, briefs of the parties, and the applicable law, we affirm
the trial court's judgment.
URL:http://www.tba.org/tba_files/TCCA/snyderbs_opn.WP6
STATE OF TENNESSEE V ANTWAIN LAMAN SPEARS
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
RAYMOND L. IVEY JOHN KNOX WALKUP
P. O. Box 229 Attorney General and Reporter
Huntingdon, TN 38344
ELIZABETH T. RYAN
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
ROBERT RADFORD
District Attorney General
ELEANOR CAHILL
Assistant District Attorney
P. O. Box 686
Huntingdon, TN 38344
Judge:JERRY L. SMITH
First Paragraph:
Appellant Antwain Laman Spears was indicted on May 6, 1996 by the
Carroll County Grand Jury for possession of cocaine with intent
to sell or deliver, possession of marijuana with intent to sell
or deliver, and possession of unlawful drug paraphernalia.
Concluding that Appellant lacked standing to contest the search
warrant, on June 25, 1996, the trial court denied Appellant's
motion to suppress the evidence seized pursuant to a search
warrant, which had been executed at the residence of Margo
Taylor. Moreover, the court determined that even if Appellant had
standing, the search warrant appeared to be valid on its face.
Appellant was convicted on September 16, 1996, by a jury in the
Carroll County Circuit Court of possession of cocaine and
marijuana with intent to sell or deliver and possession of
unlawful drug paraphernalia. The jury fined Appellant $15,000.00
for cocaine possession, $2,500.00 for marijuana possession, and
$750.00 for possession of drug paraphernalia. As a Range II
multiple offender, Appellant was sentenced to concurrent
sentences of fifteen years incarceration with the Tennessee
Department of Correction, three years, and eleven months and
twenty-nine days, respectively. The trial court also revoked
Appellant's probation resulting from a prior conviction.
Appellant presents three issues for our consideration on this
direct appeal: (1) whether the trial court erred in concluding
that Appellant lacked standing to challenge the search of Margo
Taylor's residence; (2) whether the trial court improperly denied
Appellant's motion to suppress the evidence seized during
execution of the search warrant; and (3) whether the evidence was
sufficient to sustain Appellant's convictions for possession of
cocaine and marijuana with intent to sell or deliver and
possession of drug paraphernalia.
URL:http://www.tba.org/tba_files/TCCA/spearsan_opn.WP6
STATE OF TENNESSEE, V. RALPH TALLENT,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES L. BEACH JOHN KNOX WALKUP
365 Market Street Attorney General and Reporter
Clinton, TN 37716
TIMOTHY F. BEHAN
Assistant Attorney General
425 5th Avenue North
Nashville, TN 37243
JERRY N. ESTES
District Attorney General
RICHARD NEWMAN
Assistant District Attorney General
P.O. Box 647
Athens, TN 37303
Judge: JERRY L. SMITH
First Paragraph:
A Monroe County grand jury indicted Appellant, Ralph Tallent,
with charges of Driving Under the Influence. Appellant filed a
motion to suppress admission of the breath test. After a hearing,
Appellant's motion was denied. Appellant then filed a motion in
limine to require the State to lay an appropriate foundation
through the testing officer before admitting the results of the
breath tests. Appellant then pled guilty pursuant to Rule 37
(b)(2)(i) of the Tennessee Rules of Criminal Procedure.
URL:http://www.tba.org/tba_files/TCCA/tallentr_opn.WP6
ROBERT LEE WADE,V STATE OF TENNESSEE,
Court:TCCA
Judge: DAVID H. WELLES
First Paragraph:
O R D E R
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.
URL:http://www.tba.org/tba_files/TCCA/waderl_ord.WP6
STATE OF TENNESSEE, V RAYMOND E. WOODS,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
SHAWN GRAHAM JOHN KNOX WALKUP
Office of the Public Defender Attorney General and Reporter
419 High Street
Maryville, TN 37804 ELLEN H. POLLACK
Assistant Attorney General
GERALD L. GULLEY, JR. 425 Fifth Avenue North
(On Appeal Only) Nashville, TN 37243
P. O. Box 1708
Knoxville, TN 37901 MIKE FLYNN
District Attorney General
KIRK ANDREWS
Asst District Attorney General
363 Court Street
Maryville, TN 37804
Judge: JERRY L. SMITH
First Paragraph:
On December 20, 1996, Appellant, Raymond Woods, pled guilty to
passing a $19.40 worthless check, for which there was a $15.00
service charge. The trial court accepted the guilty plea. At the
sentencing hearing, Appellant testified that he pled guilty
because he had missed work often to come to court, and he "wanted
to try to get it over with." The trial court asked who had
written the check, and Appellant responded that he did not know.
Appellant's testimony was that someone had stolen his checks and
forged his name, but he did not know who had done so. He also
testified that the payee of the check had not done any work for
him. An employee of the payee identified Appellant as the person
who brought in a radiator to the business to be worked on and as
the person who passed the check. Appellant then made a motion to
withdraw his guilty plea. The trial court denied the motion and
sentenced Appellant to eleven months and twenty-nine days, ninety
days to be served in the county jail, the rest to be served on
probation. Appellant appeals from the denial of his motion and
from the denial of full probation.
URL:http://www.tba.org/tba_files/TCCA/woodsray_opn.WP6
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