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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Lucian T. Pera
LIBERTY MUTUAL INSURANCE COMPANY v BRINTON, JR., DIRECTOR OF THE WORKERS' COMPENSATION DIV., DEPT. OF LABOR SECOND INJURY FUND Court:TSC - Workers Comp Panel For the Appellant: For the Appellee: Dianne Stamey Dycus James T. Shea, IV 425 Fifth Avenue North 607 Market St., 11th Floor 2nd Floor, Cordell Hull Bldg. P.O. Box 1708 Nashville, Tenn. 37243-0499 Knoxville, Tenn. 37901-1708 Judge: THAYER 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. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This appeal presents a novel issue arising from the provisions of T.C.A. S 50 6-238(b), which is one of the 1992 amendments to the Workers' Compensation Act. The appeal was perfected by the defendant, The Tennessee Department of Labor Second Injury Fund, from a ruling of the trial court awarding plaintiff, Liberty Mutual Insurance Company, a judgment in the sum of $6,526.52. URL:http://www.tba.org/tba_files/TSC_WCP/libertym_wc.WP6 JAMES K. ALLEN, v JIM WISEMAN, Court:TCA PAUL CAMPBELL, JR. WILLIAM R. HANNAH CAMPBELL & CAMPBELL 1200 James Building 735 Broad Street Chattanooga, Tennessee 37402-1835 Attorneys for Plaintiff/Appellant LELA M. HOLLABAUGH MANIER, HEROD, HOLLABAUGH & SMITH 2200 First Union Tower 150 Fourth Avenue North Nashville, Tennessee 37219 Attorney fo Judge: BEN H. CANTRELL First Paragraph: This is a legal malpractice action arising out of a criminal case. The plaintiff was convicted of assault and criminal trespass and he charges his attorney with multiple failures before, during, and after the trial, the most serious being the failure to retain a court reporter to preserve the evidence introduced in the criminal case. The Circuit Court of Rutherford County granted summary judgment to the defendant. We affirm. URL:http://www.tba.org/tba_files/TCA/allenjk_opn.WP6 ROSALYNN C. DONOHO, v WILLIAM J. DONOHO, JR., Court:TCA HUGH GREEN 100 Public Square Lebanon, Tennessee 37087 ATTORNEY FOR PLAINTIFF/APPELLEE JAMES C. McBROOM C. EDWARD SCUDDER, JR. 211 Printers Alley Building, Suite 502 Nashville, Tennessee 37201 ATTORNEYS FOR DEFENDANT/APPELLANT Judge: WILLIAM B. CAIN First Paragraph: In this case defendant appeals an adverse jury verdict in a personal injury action. Appellant and appellee were married in the mid-seventies and divorced in 1983. They reconciled after their divorce and had been living together for approximately five years at the time of the incident of February 20, 1993 which precipitated the law suit at bar. On that day, William J. Donoho, Jr. physically assaulted Rosalynn C. Donoho. After a one day trial, a jury assessed $85,000 compensatory damages and $15,000 punitive damages against Mr. Donoho. His motion for a new trial or, in the alternative, for a remittitur was overruled by the trial court and he appealed. URL:http://www.tba.org/tba_files/TCA/donohor_opn.WP6 HARPETH VALLEY UTILITIES DISTRICT OF DAVIDSON AND WILLIAMSON COUNTIES, TENNESSEE v METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE Court:TCA ROBERT E. PARKER L. MARSHALL ALBRITTON PARKER, LAWRENCE, CANTRELL & DEAN Fifth Floor, 200 Fourth Avenue, North Nashville, TN 37219 Attorneys for Plaintiff-Appellant PAUL D. KRIVACKA Department of Law 204 Metropolitan Courthouse Nashville, TN 37201 Attorney for Defendant-Appellee Judge: Houston M. Goddard First Paragraph: This is a suit by Harpeth Valley Utilities District, a municipal corporation organized under the Utility District laws of 1937--T.C.A. Title 7, Chapter 82, against Metropolitan Government of Nashville and Davidson County, Tennessee. Harpeth Valley- advancing two theories, breach of contract and unjust enrichment- seeks to recover interest it asserts it is due as to $75,000 paid to Metropolitan Government by owners of lots in two separate subdivisions to insure that the subdivisions could receive approval by the Metropolitan Planning Commission by providing the funds necessary to install water and waste water treatment services in the event such services were not provided by the developers or the Utility District. URL:http://www.tba.org/tba_files/TCA/harpethv_opn.WP6 GRETCHEN HART, v RONALD RICK HART, Court:TCA J. Russell Heldman, #9989 320 Main Street, Suite 101 Franklin, Tennessee 37064 John J. Hollins, #2452 HOLLINS, WAGSTER & YARBROUGH, P.C. Suite 2210, SunTrust Center 424 Church Street Nashville, Tennessee 37219 ATTORNEYS FOR PLAINTIFF/APPELLANT James G. Martin, III, #3083 FARRIS, WARFIELD & KANADAY, PLC Eighteenth Floor, SunTrust Center 424 Church Street Nashville, Tennessee 37219 ATTORNEY FOR DEFENDANT/APPELLEE Judge: HENRY F. TODD First Paragraph: This is a post-divorce decree proceeding to adjust the amount of periodic alimony. The wife has appealed from the judgment of the Trial Court increasing the alimony from $1,000 per month to $1,350 per month. URL:http://www.tba.org/tba_files/TCA/hartgret_opn.WP6 KEITH JOHNSON, et ux, et al., v FORTUNES UNTOLD, INC., d/b/a EASY MONEY PAWN SHOP, et al., Court:TCA KEVIN W. SHEPHERD, SHEPHERD & WHITE, P.A., Maryville, for Plaintiffs Appellants Lance Denault and Dina Denault. ROCKFORDE D. KING and WESLEY L. HATMAKER, EGERTON, McAFEE, ARMISTEAD & DAVIS, P.C., Knoxville, for Defendant-Appellee Fortunes Untold, Inc., d/b/a Easy Money Pawn Shop. WILLIAM A. YOUNG, O'NEIL, PARKER & WILLIAMSON, Knoxville, for Defendant-Appellee Finchum Construction Company, Inc. LINDA J. HAMILTON MOWLES, LEWIS, KING, KRIEG, WALDROP & CATRON, P.C., Knoxville, for Defendant-Appellee Hackney Petroleum, Inc. Judge: Franks, J. First Paragraph: The Trial dismissed plaintiffs' causes of action for personal injury on the basis that the statute of limitations had run before the action was properly brought, pursuant to Rule 3, T.R.C.P. URL:http://www.tba.org/tba_files/TCA/johnsnk_opn.WP6 ADOLPH C. LAVIN and JEAN LAVIN, surviving parents of TROY JAMES LAVIN, Deceased, and ADOLPH C. LAVIN, in his capacity as Administrator of the estate of TROY JAMES LAVIN, v ROSS JORDON, SUSAN JORDON, and SEAN JORDON, Court:TCA Charles R. Ray, #3188 Vincent E. Wehby, #2288 211 Third Avenue North 501 Union Street, Suite 500 Nashville, Tennessee 37219-8288 Nashville,Tennessee 37219 ATTORNEYS FOR PLAINTIFFS/APPELLANTS John L. Norris, #6007 HOLLINS, WAGSTER & YARBROUGH, P.C. Suite 2210, 424 Church Street SunTrust Center Nashville, Tennessee 37219 ATTORNEY FOR DEFENDANTS/APPELLEES Judge: HENRY F. TODD First Paragraph: The plaintiff, Adolph C. Lavin and wife, Jean Lavin, surviving parents of Troy James Lavin, brought this action against Ross and Susan Jordon and their son, Sean Jordon, for the wrongful death of Troy Lavin, who was shot and killed by Sean Jordon. The Trial Judge entered an interlocutory partial judgment on the pleadings limiting the recovery from the parents of Sean Jordon to $10,000.00 pursuant to T.C.A. SS 37-10-101, 102 and 103 which reads as follows: 37-10-101. Property damage by juvenile - Recovery against parents or guardian. - Any municipal corporation, county, township, village, school district or department of the state of Tennessee, or any person, or any religious organization, whether incorporated or unincorporated, shall be entitled to recover damages in an action in assumpsit in an amount not to exceed ten thousand dollars ($10,000.00) in a court of competent jurisdiction from the parents or guardian of the person of any minor under the age of twenty-one (21) years, living with the parents or guardian of the person who shall maliciously or willfully destroy property, real, personal or mixed, belonging to such municipal corporation, county, township, village, school district or department of the state of Tennessee or persons or religious organizations. [Acts 1967, ch. 76, S 1; 1969, ch. 170, S 1.] 37-10-102. Limitation on amount of recovery. - The recovery shall be limited to the actual damages in an amount not to exceed ten thousand dollars ($10,000) in addition to taxable court costs. [Acts 1957, ch. 76. S 2; 1969, ch. 170, S 2.] 37-10-103. Due care and diligence as barring recovery. No recovery shall be had if the parent or guardian of the person shows due care and diligence in his care and supervision of such minor child. URL:http://www.tba.org/tba_files/TCA/lavinac_opn.WP6 MOORE CONSTRUCTION COMPANY, INC., and PAUL W. MOORE, v STORY ENGINEERING COMPANY,INC., and RODDY L. STORY, Court:TCA For Plaintiffs/Appellants: For Defendants/Appellees: Thomas N. Bateman John T. Horton Robert T. Bateman Brewer, Krause, Brooks & Mills Bateman, Bateman & Darnell Nashville, Tennessee Clarksville, Tennessee Judge: WILLIAM C. KOCH, JR. First Paragraph: This appeal stems from a construction contract to improve the natural gas transmission system in the City of Clarksville. After the City awarded the contract, an unsuccessful bidder sued the project engineer in the Circuit Court for Montgomery County, claiming interference with prospective economic advantage, defamation, and disparagement. The trial court granted the project engineer's motion for summary judgment, and the unsuccessful bidder has appealed to this court. We have determined that the summary judgment was appropriate because Tennessee does not recognize the tort of interference with prospective economic advantage and because the project engineer's statements concerning the unsuccessful bidder were true. URL:http://www.tba.org/tba_files/TCA/moorecon_opn.WP6 NASHVILLE ELECTRIC SERVICE, v DON STONE, Court:TCA DAVID J. TARPLEY LEGAL AID SOCIETY OF MIDDLE TENNESSEE Nashville, Tennessee Attorney for Appellant JOHN E. BUFFALOE, JR. BUFFALOE & SHARP Nashville, Tennessee Attorney for Appellee Judge: ALAN E. HIGHERS First Paragraph: Defendant/counter claimant/appellant, Don Stone ("Stone"), appeals the judgment of the trial court dismissing his counterclaim holding that the Federal Trade Commission ("FTC") rules and regulations do not impose upon a third party creditor such as NES the direct responsibility of placing the language of the "holder" rule codified at 16 C.F.R. S 433(b)(2) in their loan documents. For reasons stated hereinafter, we affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCA/nes_opn.WP6 BOB PARKS, JOHN E. HARNEY, III, and GARY BOWMAN, v WILLIAM J. REINHART and wife, JUDITH F. REINHART, Court:TCA JOHN G. MITCHELL, JR. 120 E. Main Street P. O. Box 1336 Murfreesboro, Tennessee 37133-1336 Attorney for Plaintiffs/Appellees LAURA TEK 1994 N. Gallatin Road Madison, Tennessee 37115 Attorney for Defendants/Appellants Judge: BEN H. CANTRELL First Paragraph: This is a dispute over a drainage easement. The Chancery Court of Rutherford County reformed the deed from the defendants to the plaintiffs to include a description of the easement. We affirm the lower court's judgment, but we modify the judgment to reflect the purchasers' obligation to keep the easement cleaned out. URL:http://www.tba.org/tba_files/TCA/parksb_opn.WP6 JOHN ROBERTSON, v TENNESSEE WALKING HORSE BREEDERS' AND EXHIBITORS' ASSOCIATION, Court:TCA For Plaintiff/Appellant: For Defendant/Appellee: Donald E. Parish Marc O. Dedman Ivey, Parish & Johns Julie-Karel Elkin Huntingdon, Tennessee Spicer, Flynn & Rudstrom Nashville, Tennessee Diane Segroves Bobo, Hunt & Bobo Shelbyville, Tennessee Judge: WILLIAM C. KOCH First Paragraph: This appeal arises from a breeder's expulsion from the Tennessee Walking Horse Breeders' and Exhibitors' Association. The Association revoked the breeder's membership and permanently suspended his horse registration privileges for registering a false pedigree for two horses. The breeder sued the Association in the Circuit Court for Marshall County alleging wrongful expulsion and defamation and seeking reinstatement. After considering the parties' cross motions for summary judgment, the trial court granted the Association's motion and dismissed the case. On this appeal, the breeder asserts that the Association failed to follow its own bylaws and thereby deprived him of a valuable property right without adequate notice. We have determined that the Association substantially complied with its bylaws and rules and provided the breeder with fair notice and an opportunity to be heard. Accordingly, we affirm the trial court's decision to grant the Association's summary judgment motion. URL:http://www.tba.org/tba_files/TCA/robrtsnj_opn.WP6 CONNIE LEWIS THOMASSON v JOSEPH RICHARD THOMASSON, Court:TCA W. DAVID KELLEY Haynes, Hull, Rieder, & Ewell, P.A. 214 North Atlantic Street Tullahoma, Tennessee 37388 RANDALL W. MORRISON 115 West Lincoln Street P. O. Box 467 Tullahoma, Tennessee 37388 ATTORNEYS FOR PLAINTIFF/APPELLEE ROGER J. BEAN MARK W. BELL Henry, McCord, Bean & Miller, P.L.L.C. 300 North Jackson Street P. O. Box 538 Tullahoma, Tennessee 37388 ATTORNEYS FOR DEFENDANT/APPELLANT Judge: WILLIAM B. CAIN First Paragraph: Appellant Joseph Richard Thomasson, Jr. appeals a judgment of the trial court holding him to be in criminal contempt for refusal to comply with court ordered visitation relative to his two minor sons and his former wife, appellee Connie Lewis Thomasson. URL:http://www.tba.org/tba_files/TCA/thomasso_opn.WP6 MARK S. TIDMAN and EVELYN J. TIDMAN, v THE SALVATION ARMY, JAMES R. WORTHY, BERTHA WORTHY, KENNETH E. BREWER, FRED RUTH, Court:TCA LARRY L. CRAIN 101 Westpark Drive, Suite 250 Brentwood, Tennessee 37027 Attorney for Plaintiffs/Appellants L. GINO MARCHETTI, JR. WILLIAM G. MCCASKILL, JR. TAYLOR, PHILBIN, PIGUE, MARCHETTI & BENNETT, PLLC One Union Street P. O. Box 198169 Nashville, Tennessee 37219-8169 Attorneys for Defendants/Appellees Judge: BEN H. CANTRELL First Paragraph: Two former Salvation Army officers, a husband and wife who had been demoted and discharged, sued their superior officers and The Salvation Army itself for invasion of privacy, intentional infliction of emotional distress, negligent infliction of emotional distress, and outrageous conduct. The Circuit Court of Davidson County dismissed the complaint for failure to state a claim upon which relief can be granted. We affirm, and hold, in addition, that the defendants' actions were protected by the First Amendment to the United States Constitution. URL:http://www.tba.org/tba_files/TCA/tidmanms_opn.WP6 LARRY G. TRAIL, v TRANSPORTATION MANAGEMENT SERVICES, AND SKYLINE TRANSPORTATION, INC., Court:TCA For Transportation For Skyline Management Services: Transportation, Inc.: Roland M. Lowell Linda J. Hamilton Mowles Bruce, Weathers, Corley, Lewis, King, Krieg, Waldrop Dughman & Lyle & Catron Nashville, Tennessee Knoxville, Tennessee Judge: WILLIAM C. KOCH, JR First Paragraph: This appeal involves a dispute between two trucking companies over the enforceability of a contract to sell intrastate operating rights along specified routes in Middle and East Tennessee. The purchaser declined to honor the contract when it became worthless as a result of federal deregulation of intrastate commercial trucking. In an interpleader action filed in the Chancery Court for Rutherford County, the seller asserted that the purchaser breached the contract, and the purchaser asserted that the contract permitted it to cancel in the event of deregulation. The trial court granted the seller's motion for summary judgment after determining that the purchaser did not have the right to cancel the contract because the federal deregulation occurred after the contract's consummation date. The purchaser asserts on this appeal that it is entitled to relief from its contractual obligation because the contract was essentially worthless. We have determined that the contract remains enforceable and, therefore, affirm the trial court. URL:http://www.tba.org/tba_files/TCA/traillg_opn.WP6 DONNA WILLIS and the FRANKLIN COUNTY EDUCATION ASSOCIATION, v. FRANKLIN COUNTY BOARD OF EDUCATION and PATTY PRIEST, Superintendent of Franklin County Schools, Court:TCA For Plaintiffs/Appellants: For Defendants/Appellees: Charles Hampton White Robert G. Wheeler, Jr. Richard L. Colbert Charles W. Cagle Cornelius & Collins Lewis, King, Krieg, Waldrop & Catron Nashville, Tennessee Nashville, Tennessee Judge: WILLIAM C. KOCH, JR. First Paragraph: This appeal involves a public school employee's employment rights under a contract between the Franklin County Board of Education and the Franklin County Education Association. After accepting a lower paying teaching position when her central office job was abolished, the employee and her union filed suit in the Chancery Court for Franklin County alleging that the school superintendent and the school board had breached the contract. The trial court, sitting without a jury, held that the school superintendent and the school board had not breached the contract and had not acted arbitrarily or improperly by offering the employee a teaching position. We affirm the trial court's judgment because we have determined that the reemployment rights available to laid off employees do not apply to employees whose positions have been abolished, and that the evidence does not show that the school superintendent or the school board acted improperly. URL:http://www.tba.org/tba_files/TCA/willisd_opn.WP6 STATE OF TENNESSEE, v JOHN ADAMS and RITA ADAMS, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: John Adams John Knox Walkup Michael E. Scholl Attorney General & Reporter Attorney at Law 200 Jefferson Avenue Peter M. Coughlan Memphis, TN 3803 Assistant Attorney General 425 Fifth Avenue North Rita Adams 2d Floor, Cordell Hull Building A C Wharton, Jr. Nashville, TN 37243-0493 Shelby County Public Defender William L. Gibbons Walker Gwinn District Attorney General Assistant Public Defender 201 Poplar Avenue, Suite 201 Amy P. Weirich Memphis, TN 38103 Assit District Attorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103 Judge: PAUL G. SUMMERS First Paragraph: The appellants, John and Rita Adams, were convicted by a jury of aggravated child abuse through neglect in the Shelby County Criminal Court. Rita Adams was also convicted of assault. The appellants were sentenced to twenty years in the Department of Correction. They have appealed. We affirm all convictions and sentences. URL:http://www.tba.org/tba_files/TCCA/adamsj&r_opn.WP6 DANNY E. GARRETT, v. STATE OF TENNESSEE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: DANNY E. GARRETT, PRO SE JOHN KNOX WALKUP Northeast Correction Complex Attorney General & Reporter P.O. Box 5000 Mountain City, TN 37683 TIMOTHY F. BEHAN Asst. Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 RANDALL E. NICHOLS District Attorney General City-County Building Knoxville, TN 37902 Judge: CURWOOD WITT First Paragraph: The petitioner, Danny E. Garrett, appeals the Knox County Criminal Court's denial of his petition for habeas corpus relief. On October 5, 1987, Garrett pleaded guilty to armed robbery and assault with intent to commit murder. The defendant made no direct appeal but filed two previous post conviction petitions. This court affirmed the dismissals of these petitions as both were barred by the applicable statute of limitations. Danny E. Garrett v. State, No. 03C01-9411-CR-00429 (Tenn. Crim. App., Knoxville, July 25, 1995), perm. app. denied (Tenn. 1996); Danny Garrrett v. State, No. 03C01-9603-CR-00111 (Tenn. Crim. App., Knoxville, Dec. 12, 1997). In this habeas corpus petition, which he filed on March 20, 1997, Garrett alleged a deprivation of the right to counsel during the hearing in which his 1986 pro se motions for speedy trial and for dismissal were considered, and he complained of the trial court's denial of a motion, filed November 27, 1996, for a transcript of cases that apparently had been pending in Knox County General Sessions Court in 1986. The trial court treated this habeas corpus petition as one for post-conviction relief and dismissed it without a hearing on April 6, 1997. URL:http://www.tba.org/tba_files/TCCA/garretde_opn.WP6 WILLIAM MICHAEL HOBSON, 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. Finding that the issue raised on appeal has become moot, we grant the state's motion. URL:http://www.tba.org/tba_files/TCCA/hobsonwm_ord.WP6 JAMES A. HOOPER,v. STATE OF TENNESSEE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: PRO SE JOHN KNOX WALKUP Attorney General & Reporter TIMOTHY E. BEHAN Assistant Attorney General Cordell Hull Bldg., Second Floor 425 Fifth Avenue, North Nashville, TN 37243-0493 CHARLES E. HAWK, JR. District Attorney General FRANK A. HARVEY Assistant District Attorney P. O. BOX 703 KINGSTON, TN 37763 Judge: WILLIAM B. ACREE First Paragraph: The appellant, James A. Hooper, appeals as of right the trial court's dismissal of his petition for post-conviction relief. We affirm the trial court. In 1992, the appellant was indicted in a multi-count indictment charging him with aggravated rape for crimes which were committed in 1990. He was convicted of three counts, but those convictions were reversed by the Court of Criminal Appeals. In 1995, the appellant entered a plea of guilty to one count of aggravated sexual battery, a lesser included offense of Count 5. URL:http://www.tba.org/tba_files/TCCA/hooper_op.WP6 RONALD L. JONES, v. STATE OF TENNESSEE, Court:TCCA For the Appellant: For the Appellee: Alan R. Beard John Knox Walkup 601 Chattanooga Bank Bng Attorney General of Tennessee 615 Lindsey Street and Chattanooga, TN 37402 Clinton J. Morgan Asst Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 William H. Cox, III District Attorney General and David Denny Asst District Attorney General 600 Market Street, Suite 310 Chattanooga, TN 37402 Judge: Joseph M. Tipton First Paragraph: The petitioner, Ronald L. Jones, appeals as of right from the Hamilton County Criminal Court's summary dismissal of his pro se petition for post-conviction relief on the ground that it was barred by the statute of limitations. The petitioner contends that the petition was timely filed under the 1995 Post-Conviction Procedure Act. He argues that the application of the statute of limitations violates his due process rights because he was unaware of developments in Tennessee law because he was incarcerated in a federal prison in Kansas. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/jonesrl_opn.WP6 George Killingsworth, v Charles Jones, Court:TCCA Judge: JERRY L. SMITH First Paragraph: O R D E R The petitioner is appealing the trial court's denial of his petition for writ of habeas corpus. Petitioner was indicted on one count each of aggravated rape and aggravated sexual battery. Petitioner was tried and found guilty by a Davidson County jury. The petitioner contends that the judgment entered against him is void because the indictment failed to allege the mens rea of the offense charged. URL:http://www.tba.org/tba_files/TCCA/killingg_ord.WP6 DAVID MCDOWELL, v. CHARLES JONES, Warden, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: DAVID MCDOWELL JOHN KNOX WALKUP Pro Se Attorney General and Reporter #109129 M.C.R.C.F. TIMOTHY F. BEHAN P. O. Box 2000 Assistant Attorney General Wartburg, TN 37887-2000 425 Fifth Avenue North Nashville, TN 37243-0493 CHARLES E. HAWK District Attorney General FRANK HARVEY Assistant District Attorney P. O. Box 703 Kingston, TN 37763 Judge: JERRY L. SMITH First Paragraph: Appellant David McDowell was convicted by a jury in the Bradley County Criminal Court of aggravated rape. As a Range I standard offender, he was sentenced to twenty-two years incarceration with the Tennessee Department of Correction. This Court affirmed the conviction. State v. David McDowell, No. 251 Bradley County (Tenn. Crim. App., Knoxville, October 23, 1986). On December 30, 1996, Appellant filed an application for writ of habeas corpus in the Morgan County Criminal Court, alleging that he was being illegally restrained on a conviction and sentence based upon a fatally defective indictment which failed to properly set forth a mens rea. The trial court denied the writ on February 14, 1997. Appellant presents the following issue for our consideration in this appeal: whether the trial court erred in dismissing the petition for habeas corpus relief. URL:http://www.tba.org/tba_files/TCCA/mcdowda_opn.WP6 STATE OF TENNESSEE, v RALPH MILLER, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: GARY ANTRICAN JOHN KNOX WALKUP District Public Defender Attorney General & Reporter SHANA C. McCOY-JOHNSON JANIS L. TURNER Asst. Public Defender Counsel for the State P.O. Box 700 John Sevier Bldg. Somerville, TN 38068 425 Fifth Ave., North Nashville, TN 37243 0493 ELIZABETH T. RICE District Attorney General 302 Market St. East Somerville, TN 38068 Judge: JOHN H. PEAY First Paragraph: The defendant was indicted for felony escape, a Class E felony. He pled guilty, and the trial court sentenced him as a Range III career offender. In this appeal as of right, the defendant contends that the State failed to prove he qualified for sentencing as a Range III career offender. We affirm. URL:http://www.tba.org/tba_files/TCCA/millerr_opn.WP6 TIMOTHY EUGENE MORRIS, v. STATE OF TENNESSEE, Court:TCCA FOR THE APPELLANT: GREG W. EICHELMAN District Public Defender MICHAEL A. WALCHER Assistant District Public Defender 1609 College Park Drive, Box 11 Morristown, TN 37813-1618 JAMES S. ROACH Attorney at Law P. O. Box 1495 Johnson City, TN 37605-1495 FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter MICHAEL E. MOORE Solicitor General KENNETH RUCKER JOHN BAKER Assistant Attorneys General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 C. BERKELEY BELL, JR. District Attorney General ERIC D. CHRISTIANSEN Assistant District Attorney General 109 South Main, Ste. 501 Greeneville, TN 37743 Judge: JOE G. RILEY First Paragraph: Petitioner, Timothy Eugene Morris, appeals the dismissal of his second post-conviction relief petition by the Criminal Court of Greene County. He was previously convicted in 1981 of first degree murder and sentenced to death. URL:http://www.tba.org/tba_files/TCCA/morriste_opn.WP6 STATE OF TENNESSEE, v. MELVIN LEWIS PEACOCK, Court:TCCA For the Appellant: For the Appellee: Mark J. Fishburn John Knox Walkup 100 Thompson Lane Attorney General of Tennessee Nashville, TN 37211 and Lisa A. Naylor Asst Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493 Victor S. Johnson, III District Attorney General and Katrin Novak Miller Assistant District Attorney General Washington Square 222 2nd Avenue, North Nashville, TN 37201-1649 Judge: Joseph M. Tipton First Paragraph: The defendant, Melvin Lewis Peacock, appeals as of right from his jury convictions in Davidson County for possession with intent to sell three hundred grams or more of a substance containing cocaine, a Class A felony, and for the unlawful possession of a weapon, a Class E felony. The trial court sentenced the defendant as a Range I, standard offender to twenty years in the custody of the Department of Correction for the cocaine possession conviction and to a concurrent two-year sentence in the custody of the Department of Correction for the weapon possession conviction. The trial court ordered the defendant to serve the twenty-year sentence consecutively to an earlier sentence. The defendant presents the following issues for our review: (1) the trial court erred when it denied the defendant's motion to suppress the evidence seized by the police pursuant to a search warrant on the basis that an exact copy of the warrant was not left with the defendant; (2) the trial court erred in denying the defendant's motion in limine to preclude the state from introducing into evidence five car titles found in a safe; and (3) the trial court erred in permitting the state to recall Curtis Peacock as a witness during its case-in-chief. We affirm the trial court's judgment of conviction. URL:http://www.tba.org/tba_files/TCCA/peacockm_opn.WP6 DANNY E. ROGERS,v. STATE OF TENNESSEE, Court:TCCA For Appellant: For Appellee: Jerry B. Bible, Attorney John Knox Walkup 11 Courthouse Square, Suite B Attorney General and Reporter Jasper, TN 37347 Sandy C. Patrick Assistant Attorney General Cordell Hull Building, 2 Floor 425 Fifth Avenue North Nashville, TN 37243-0493 J. Michael Taylor District Attorney General James W. Pope, III Asst District Attorney General First American Building Third and Market Streets Dayton, TN 37321 Judge: GARY R. WADE First Paragraph: The petitioner, Danny E. Rogers, appeals the trial court's denial of his petition for post-conviction relief. In this appeal of right, the single issue presented for review is whether the petitioner was denied his right to effective assistance of counsel. URL:http://www.tba.org/tba_files/TCCA/rogersde_opn.WP6 STATE OF TENNESSEE, v. MICHAEL W. SIMMONS, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: C. MICHAEL ROBBINS JOHN KNOX WALKUP 3074 East Street Attorney General and Reporter Memphis, TN 38128 MARVIN E. CLEMENTS, JR. Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 JERRY WOODALL District Attorney General DONALD ALLEN Assistant District Attorney General P.O. Box 2825 Jackson, TN 38302 Judge: DAVID H. WELLES, First Paragraph: ORDER The Defendant was convicted on a jury verdict of one count of especially aggravated kidnapping and one count of aggravated kidnapping. He was sentenced to concurrent terms of 21 years and 9 years, to be served in the Department of Correction as a 100 percent violent offender. He appeals from his convictions and his sentences. We find no merit to the Defendant's appeal, and we affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/simmonmw_ord.WP6 THOMAS MICHAEL STONE, v STATE OF TENNESSEE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: VICKI H. HOOVER JOHN KNOX WALKUP 123 N. Poplar St. Attorney General & Reporter Paris, TN 38242 PETER M. COUGHLIN Asst. Attorney General 425 5th Avenue North Nashville, TN 37243 ROBERT RADFORD District Attorney General P.O. Box 686 Huntingdon, TN 38344 Judge: DAVID H. WELLES First Paragraph: The Defendant, Thomas Michael Stone, was indicted for rape of a child, rape, and incest, and convicted by a jury of all three charges. The convictions were affirmed on direct appeal. State v. Thomas Michael Stone, C.C.A. No. 02C01-9503-CC-00063, Henry County (Tenn. Crim. App., Jackson, Dec. 13, 1995). In this post-conviction relief proceeding filed on October 10, 1996, the Defendant contends that he received ineffective assistance of counsel at trial and on appeal. After an evidentiary hearing, the post-conviction court denied relief. Upon our review of the record, we affirm. URL:http://www.tba.org/tba_files/TCCA/stonetm_opn.WP6 KEVIN SMITH TUCKER, 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/tuckerks_ord.WP6 STATE OF TENNESSEE, v. RONNIE WALDEN, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Douglas A. Trant John Knox Walkup Attorney at Law Attorney General & Reporter 900 S. Gay Street Suite 1502 Elizabeth B. Marney Knoxville, TN 37902 Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493 William Paul Phillips District Attorney General P.O. Box 10 Huntsville, TN 37756 Clifton Sexton, Jr. Michael Ripley Shane Sexton Assistant District Attorneys General P.O. Box 323 Jacksboro, TN 37757 Judge: PAUL G. SUMMERS First Paragraph: The appellant, Ronnie Walden, was convicted of felony murder and sentenced to life imprisonment. The appellant filed a pro se motion for a new trial, alleging ineffective assistance of counsel. The trial court denied the motion. The appellant appeals. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/waldenro_opn.WP6 STATE OF TENNESSEE, v. MARCUS WELCOME, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: MARK E. STEPHENS JOHN KNOX WALKUP District Public Defender Attorney General & Reporter R. SCOTT CARPENTER TODD R. KELLEY Asst. Public Defender Asst. Attorney General 1209 Euclid Ave. John Sevier Bldg. Knoxville, TN 37921 425 Fifth Ave., North Nashville, TN 37243 0493 RANDALL NICHOLS District Attorney General MARSHA SELECMAN Asst. District Attorney General -and- JERRY HALL Acting Asst. District Attorney General City-County Bldg. Knoxville, TN 37902 Judge: JOHN H. PEAY First Paragraph: The defendant was indicted for robbery. Following a trial, the jury returned a verdict of guilty. In this appeal as of right, the defendant argues that the convicting evidence is insufficient to sustain his conviction and that a remark made by the prosecutor during closing argument amounts to reversible error. Finding no merit in the defendant's arguments, we affirm. URL:http://www.tba.org/tba_files/TCCA/welcomem_opn.WP6 STATE OF TENNESSEE, v ADRIAN WHITE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: BRETT B. STEIN JOHN KNOX WALKUP 236 Adams Ave. Attorney General & Reporter Memphis, TN 38103 ELIZABETH T. RYAN WAYNE CHASTAIN Asst. Attorney General 66 Monroe, Suite 804 John Sevier Bldg. Memphis, TN 338103 425 Fifth Ave., North (Trial Only) Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General THOMAS D. HENDERSON JENNIFER NICHOLS Asst. District Attorneys General 201 Poplar St., Suite 301 Memphis, TN 38103 Judge: JOHN H. PEAY First Paragraph: The defendant was convicted of first-degree murder and two counts of aggravated robbery. In this appeal as of right, he argues that the trial court erred in allowing the State to read the indictment to the jury and in instructing the jury on "reasonable doubt." Finding no merit in either of these arguments, we affirm. URL:http://www.tba.org/tba_files/TCCA/whitea_opn.WP6 STATE OF TENNESSEE, v GREGORY WHITFIELD, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: A C Wharton, Jr. John Knox Walkup Shelby County Public Defender Attorney General & Reporter Tony N. Brayton Georgia Blythe Felner Assistant Public Defender Counsel for the State (On Appeal) Criminal Justice Division Cordell Hull Building, 2 Floor Michael Johnson 425 Fifth Avenue North Kevin Reed Nashville, TN 37243-0493 Assistant Public Defenders 201 Poplar Avenue, Suite 201 William L. Gibbons Memphis, TN 38103 District Attorney General (At Trial) David B. Shapiro Chris Marshburn Asst District Attorneys General 201 Poplar Avenue, Suite 301 Memphis, TN 38103 Judge: PAUL G. SUMMERS First Paragraph: The appellant, Gregory Whitfield, was convicted by a jury of aggravated robbery and aggravated assault in the Shelby County Criminal Court. The trial court overruled his motion for a new trial and he appeals. The sole issue for our review is whether the evidence is sufficient to support the jury's verdict. URL:http://www.tba.org/tba_files/TCCA/whitfiel_opn.WP6 STATE OF TENNESSEE, v. BRUCE E. WILLIAMS, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: MACK GARNER JOHN KNOX WALKUP Office of the Public Defender Attorney General and Reporter Fifth Judicial District 421 High Street CLINTON J. MORGAN Maryville, TN 37804 Assistant Attorney General 425 Fifth Avenue North GERALD L. GULLEY, JR. Nashville, TN 37243 (On Appeal Only) Contract Appellate Defender MIKE FLYNN P. O. Box 1708 District Attorney General Knoxville, TN 37901 EDWARD P. BAILEY, JR. Assistant District Attorney 362 Court Street Knoxville, TN 37804 Judge: JERRY L. SMITH First Paragraph: ORDER On August 19, 1996, Appellant, Bruce E. Williams, was placed on probation. As part of the probation, an electronic monitoring system would call Appellant's residence to confirm that Appellant was abiding by his curfew. On three separate occasions the system was unable to contact the Appellant. On February 2, 1997, Appellant was arrested for public intoxication. Again, on February 18, 1997, Appellant was arrested for driving under the influence and habitual motor offender. URL:http://www.tba.org/tba_files/TCCA/williamb_ord.WP6 STATE OF TENNESSEE, v. PHIL WILKERSON, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: CHARLES M. CORN JOHN KNOX WALKUP District Public Defender Attorney General & Reporter P.O. Box 1453 Cleveland, TN 37364-1453 CLINTON J. MORGAN Counsel for the State Criminal Justice Division 425 Fifth Ave. North 2nd Floor, Cordell Hull building Nashville, TN 37243-0493 JERRY N. ESTES District Attorney General Washington Ave. Athens, TN 37303 AMY REEDY Asst District Attorney General P.O. Box 647 Athens, TN 37303-1453 Judge: CURWOOD WITT First Paragraph: The defendant, Phil Wilkerson, was convicted in a bench trial in the McMinn County Criminal Court of two counts of the sale of less than .5 gram of cocaine, a class C felony. As a career offender, he was sentenced to fifteen years, the mandatory maximum penalty, on each count. The trial court ordered that sentences in the instant case run concurrently but that they be served consecutively to a twelve-year sentence on a prior conviction. In this appeal, the defendant contends that the evidence was insufficient to prove that he was the seller of the cocaine rather than a procuring agent for the purchaser and that the trial court erred in running the fifteen-year sentences consecutively to the earlier sentence. We find the evidence sufficient to support the defendant's convictions but remand the case to the trial court for reconsideration of the consecutive sentencing issue. URL:http://www.tba.org/tba_files/TCCA/wlkrsnp_opn.WP6 DEON BRADEN, v STATE OF TENNESSEE, Court:TCCA FOR THE APPELLANT: HERSHELL D. KOGER 131 North First Street P.O. Box 1148 Pulaski, TN 38478 FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter LISA A. NAYLOR Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 T. MICHAEL BOTTOMS District Attorney General STELLA L. HARGROVE Assistant District Attorney General 10 Public Square P.O. Box 1619 Columbia, TN 38402-1619 Judge: JOE G. RILEY First Paragraph: The petitioner, Deon Braden, appeals the trial court's denial of his petition for post-conviction relief. He alleges his original guilty plea was involuntary and trial counsel rendered ineffective assistance by failing to inform him of the potential sentence he could receive. After a thorough review of the record, we REMAND to the trial court with instructions to enter findings of fact and conclusions of law. Alternatively, if the trial court is unable to make findings of fact due to the passage of time, a new hearing should be held. URL:http://www.tba.org/tba_files/TCCA/bradend_opn.WP6 STATE OF TENNESSEE, v DERRICK BURKEEN Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: WILLIAM C. BRIGHT JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter 22nd Judicial District 128 North 2nd Street JANIS L. TURNER P.O. Box 1208 Assistant Attorney General Pulaski, TN 38478 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: CURWOOD WITT First Paragraph: The appellant, Derrick Burkeen, appeals as of right from the trial court's revocation of his probation sentence. He contends that the trial court erred in revoking his probation and in failing to consider sentencing alternatives other than incarceration. We affirm the judgment. URL:http://www.tba.org/tba_files/TCCA/burkeen_opn.WP6 STATE OF TENNESSEE, v DEWEY L. CLARK, Court:TCCA FOR THE APPELLEE: FOR THE APPELLANT: Jeff D. Rader John Knox Walkup Ogle, Wynn & Rader Attorney General & Reporter Attorneys at Law 103 E. Bruce Street Timothy F. Behan P.O. Box 5365 Assistant Attorney General Sevierville, TN 37864 Criminal Justice Division Cordell Hull Building, 2nd Floor James H. Ripley 425 Fifth Avenue North Sharp & Ripley Nashville, TN 37243-0493 Attorneys at Law P.O. Box 4630 Alfred C. Schmutzer, Jr. Sevierville, TN 37864 District Attorney General Charles E. Atchley, Jr. Assistant District Attorney General 125 Court Avenue, Room 301 E Sevierville, TN 3786 Judge: PAUL G. SUMMERS First Paragraph: The Sevier County Grand Jury indicted the appellee, Dewey L. Clark, on four counts of illegally dispensing controlled substances while employed as a pharmacist and one count of theft of property (controlled substances) over $500. The state denied Clark's application for pretrial diversion. He filed a petition for certiorari in the trial court challenging the state's decision. The trial court found that the prosecutor had abused his discretion in denying diversion. This Court granted the state's application for an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The issue is whether the trial court's decision is supported by a preponderance of the evidence. We affirm. URL:http://www.tba.org/tba_files/TCCA/clarkdew_opn.WP6 STATE OF TENNESSEE,v RANDY LEMING, Court:TCCA FOR THE APPELLANT: JERRY K. GAYLON 119 Court Avenue Sevierville, TN 37862-3511 FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter TODD R. KELLEY Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 ALFRED C. SCHMUTZER, JR. District Attorney General CHARLES E. ATCHLEY, JR. G. SCOTT GREEN Asst. District Attorneys General 125 Court Avenue, Room 301-E Sevierville, TN 37862 Judge: JOE G. RILEY First Paragraph: The defendant, Randy Leming, was indicted by a grand jury in Sevier County on two (2) counts of statutory rape, Class E felonies. He applied for pretrial diversion, which was denied by the district attorney's office. He filed a petition for writ of certiorari in the trial court to review the denial of pretrial diversion. The trial court sustained the denial, and defendant subsequently pled guilty to both counts of statutory rape. The trial court sentenced defendant as a Range I, standard offender, to concurrent sentences of eighteen (18) months imprisonment for each offense. On appeal, defendant contends that the trial court erred in: (1) sustaining the prosecutor's denial of pretrial diversion; (2) denying judicial diversion; and (3) imposing an excessive sentence to be served in incarceration. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/lemingr_opn.WP6 STATE OF TENNESSEE, v EUGENE McCARTER, Court:TCCA For the Appellant: For the Appellee: Mack Garner John Knox Walkup District Public Defender Attorney General of Tennessee 419 High Street and Maryville, TN 37804 Michael J. Fahey, II Asst Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 Michael L. Flynn District Attorney General and Edward P. Bailey, Jr. Asst District Attorney General Blount County Courthouse 363 High Street Maryville, TN 37804 Judge: Joseph M. Tipton First Paragraph: The defendant, Eugene McCarter, appeals as of right from the Blount County Circuit Court's revocation of his probation. He argues that the trial court erred by revoking his probation. We disagree. URL:http://www.tba.org/tba_files/TCCA/mccartre_opn.WP6 STATE OF TENNESSEE, v. ANDRE PARKS, Court:TCCA FOR THE APPELLANT: JOHN HARWELL DICKEY District Public Defender MICHAEL D. RANDLES (At Trial) Assistant District Public Defender 218 North Main Street Shelbyville, TN 37160 JULIE A. MARTIN (On Appeal) 706 Walnut Street, Ste. 900-A P. O. Box 426 Knoxville, TN 37901-0426 FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter DARYL J. BRAND Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 W. MICHAEL McCOWN District Attorney General WEAKLEY E. BARNARD Assistant District Attorney General Marshall County Courthouse Room 407 Lewisburg, TN 37091 Judge: JOE G. RILEY First Paragraph: Defendant, Andre Parks, appeals his conviction by a Lincoln County jury of the offense of selling cocaine under 0.5 grams, a Class C felony. He was sentenced to a term of eight (8) years and eleven (11) months and denied alternative sentencing. He presents the following issues for our review: 1. whether the evidence is sufficient to support the guilty verdict; 2. whether the trial court erred in failing to suppress the undercover agent's in court identification of the defendant; 3. whether the trial court erred by admitting into evidence the packages containing the cocaine since it had defendant's name marked on them; and 4. whether the trial court erred in sentencing the defendant. After a careful review of the evidence, we affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/parksa_opn.WP6 STATE OF TENNESSEE,v. EARNEST EUGENE TRAVIS, Court:TCCA For Appellant: For Appellee: Peter D. Heil, Attorney John Knox Walkup P.O. Box 40651 Attorney General and Reporter Nashville, TN 37204 (on appeal) Daryl J. Brand Assistant Attorney General David E. Brandon, Attorney 425 Fifth Avenue North 211 Third Avenue North Second Floor, Cordell Hull Building Nashville, TN 37201 Nashville, TN 37243-0493 (at trial and on appeal) William E. Whitesell District Attorney General Third Floor, Judicial Building Murfreesboro, TN 37130 Judge: GARY R. WADE First Paragraph: The defendant, Earnest Eugene Travis, was convicted in a bench trial of driving under the influence of an intoxicant. The trial court imposed a sentence of eleven months and twenty-nine days, granted supervised probation after forty eight hours in jail, and revoked the driver's license of the defendant. In this appeal of right, the defendant challenges the sufficiency of the evidence, argues that the opinion testimony of the police officers should have been excluded, and contends that the trial judge impermissibly considered personal knowledge in making his decision. URL:http://www.tba.org/tba_files/TCCA/travisee_opn.WP6
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