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TBALink Opinion-Flash
December 16, 1998 -- Volume 4 -- Number 180
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
Editor-in-Chief, TBALink
J. C. BRADFORD & COMPANY, a Tennessee Limited Liability Company VS. SOUTHERN REALTY PARTNERS, a Tennessee General Partnership, and WESTON MANAGEMENT COMPANY, A Delaware Corporation Court:TCA Attorneys: Carl H. Langschmidt, Jr.; Bobby M. Leatherman; Parke S. Morris; Armstrong Allen Prewitt Gentry Johnston & Holmes, PLLC, of Memphis For Appellant J. Alan Hanover; James R. Newsom III; Hanover, Walsh, Jalenak & Blair, PLLC, of Memphis For Appellee, Southern Realty Partners Martin W. Brown of Memphis For Appellee, Weston Management Company Judge:CRAWFORD First Paragraph: This is a case involving allegations of fraudulent and negligent misrepresentation and violation of the Tennessee Consumer Protection Act. Plaintiff, J.C. Bradford & Co. (Bradford), appeals from the trial court's decree dismissing its complaint and awarding judgment on the counterclaims of defendants, Southern Realty Partners (Southern) and Weston Management Company (Weston). URL:http://www.tba.org/tba_files/TCA/bradfrdj_opn.WP6
BRAXTON D. DIXON
VS.
STEVE BRYAN
Court:TCA
Attorneys:
For the Plaintiff/Appellee: For the Defendant/Appellant:
C. Tracey Parks William Kennerly Burger
Gallatin, Tennessee Murfreesboro, Tennessee
Judge:LILLARD
First Paragraph:
This is an action brought under the Tennessee Consumer Protection Act.
The suit arose out of a contract to sell an antebellum log home to be
dismantled and moved. The trial court found that the defendant
knowingly engaged in a deceptive trade practice, and awarded the
plaintiff treble damages and attorney's fees. We affirm.
URL:http://www.tba.org/tba_files/TCA/dixonbra_opn.WP6
HOME BUILDERS ASSOCIATION OF MIDDLE TENNESSEE
VS.
MAURY COUNTY, TENNESSEE,
CHARLES W. BURSON, State of Tennessee Attorney General
Court:TCA
Attorneys:
For the Plaintiff/Appellee, For the Defendant/Appellant:
Home Builders Association of
Middle Tennessee:
L. Bruce Peden John Knox Walkup
Columbia, Tennessee Charles L. Lewis
Forrest B. Bigham
Nashville, Tennessee
Judge:LILLARD
First Paragraph:
This case is a challenge to the constitutionality of a county tax.
After authorizing the tax, the county adopted a resolution that the
tax would not be imposed, and no such taxes have been collected. The
trial court denied the State's motion to dismiss. We reverse, finding
that there is no justiciable controversy.
URL:http://www.tba.org/tba_files/TCA/homebuil_opn.WP6
ROGERS McKINLEY
VS.
CHARLES TRAUGHBER and ROBERT BYRD
Court:TCA
Attorneys:
ROGER McKINLEY, Pro Se
Route 4 Box 600
Pikeville, Tennessee 37367
JOHN KNOX WALKUP
Attorney General and Reporter
MICHAEL MOORE
Solicitor General
PAMELA S. LORCH
Assistant Attorney General
Civil Rights and Claims Division
Second Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
ATTORNEYS FOR CHARLES TRAUGHBER
Judge:CAIN
First Paragraph:
This appeal involves a state prisoner's challenge to the decision of
the Tennessee Board of Paroles denying him parole. The petitioner
filed a pro se petition for a writ of certiorari in the chancery court
seeking review of the Board's decision. The trial court granted the
respondent's motion to dismiss pursuant to Rule 12.02(6) of the
Tennessee Rules of Civil Procedure. We affirm.
URL:http://www.tba.org/tba_files/TCA/mckinley_opn.WP6
DAVID PALMER
VS.
TENNESSEE DEPARTMENT OF CORRECTION
Court:TCA
Attorneys:
DAVID PALMER, Pro Se
#116977 NECX POB 5000
Mountain City, Tennessee 37683
JOHN KNOX WALKUP
Attorney General and Reporter
MICHAEL E. MOORE
Solicitor General
SOHNIA W. HONG
Assistant Attorney General
Civil Rights and Claims Division
Second Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, Tennessee 37243
ATTORNEYS FOR DEFENDANT/APPELLEE
Judge:CAIN
First Paragraph:
This appeal involves a state prisoner's efforts to obtain judicial
review of a decision of the Tennessee Department of Correction. After
the Department denied the prisoner the relief that he sought in his
Petition for Declaratory Order, the prisoner filed a pro se "Petition
for Judicial Review and/or Petition for a Declaratory Judgment and/or
Petition for Common-law Writ of Certiorari" in the Chancery Court of
Davidson County. The trial court granted the Department's motion to
dismiss pursuant to Rule 12.02(6) of Civil Procedure. We affirm the
dismissal of the prisoner's petition because it fails to state a claim
upon which relief can be granted.
URL:http://www.tba.org/tba_files/TCA/palmerd_opn.WP6
STATE OF TENNESSEE
VS.
DARRYL J. BAILEY
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
MARVIN E. BALLIN JOHN KNOX WALKUP
MARK E. MESLER Attorney General and Reporter
200 Jefferson Ave,Ste 1250
Memphis, TN 38103 SARAH M. BRANCH
Assistant Attorney General
425 Fifth Avenue
Nashville, TN 37243
WILLIAM L. GIBBONS
District Attorney General
THOMAS D. HENDERSON
Assistant District Attorney
201 Poplar Avenue
Memphis, TN 38103
Judge:SMITH
First Paragraph:
On September 23, 1994, a Shelby County jury convicted Appellant Darryl
J. Bailey of murder committed during the perpetration of a robbery and
sentenced him to life imprisonment. Appellant challenges his
conviction, raising the following issues: 1) whether the evidence was
sufficient to support his conviction; and 2) whether the trial court
erred when it ruled that a statement of a co-defendant could not be
introduced into evidence.
After a review of the record, we reverse the judgment of the trial
court and remand for a new trial.
URL:http://www.tba.org/tba_files/TCCA/baileyda_opn.WP6
STATE OF TENNESSEE
VS.
WILLIAM DORRIS BUCY, II
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
MATTHEW M. MADDOX JOHN KNOX WALKUP
MADDOX, MADDOX, & MADDOX Attorney General & Reporter
P. O. Box 430
Huntingdon, TN 38344 MARVIN E. CLEMENTS
Assistant Attorney General
Criminal Justice Division
425 Fifth Ave. North
2d Floor, Cordell Hull Bldg.
Nashville, TN 37243-0493
ROBERT "GUS" RADFORD
District Attorney General
P. O. Box 686
Huntingdon, TN 38344
TODD ROSE
Assistant District Attorney General
P.O. Box 94
Paris, TN 38242
Judge:WITT
First Paragraph:
A jury in the Henry County Circuit Court convicted the defendant,
William Dorris Bucy, II, of possession of more than one-half ounce of
marijuana with the intent to manufacture, deliver, or sell, and
possession of drug paraphernalia. The trial court sentenced the
defendant to one year for possession of marijuana, a class E felony,
and to a concurrent sentence of eleven months and twenty-nine days for
possession of drug paraphernalia, a class A misdemeanor. The trial
court ordered the defendant to serve six months of his sentence in the
county jail and the balance on intensive probation. In addition, the
trial judge imposed fines of $5,000 and $750. In this appeal, the
defendant contends that the trial court erred in denying his motion to
suppress the materials obtained through the use of invalid search
warrants and that the trial court abused its discretion in admitting
various irrelevant but prejudicial items into evidence. We affirm the
defendant's convictions.
URL:http://www.tba.org/tba_files/TCCA/bucyw_opn.WP6
DAVID CLIFF
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
WILLIAM K. RANDOLPH JOHN KNOX WALKUP
120 N. Mill St., Suite 303 Attorney General and Reporter
P. O. Box 611
Dyersburg, TN 38025-0611 MARVIN E. CLEMENTS, JR.
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
PHILLIP BIVENS
District Attorney General
P. O. Drawer E
Dyersburg, TN 38025
Judge:SMITH
First Paragraph:
This matter represents an appeal by Appellant, David Cliff from the
Dyer County Circuit Court's dismissal of his pro se petition for
post-conviction relief. Appellant is currently serving a fourteen
(14) year sentence for a conviction of aggravated assault. On appeal,
Appellant raises the following issue for review: whether the trial
court erred in denying Appellant's pro se motion for a new trial based
upon the claim of ineffective assistance of counsel.
URL:http://www.tba.org/tba_files/TCCA/cliffdav_opn.WP6
STATE OF TENNESSEE
VS.
RONNIE L. GRAHAM
Court:TCCA
Attorneys:
FOR THE APPELLANT:
TERRY D. SMART
371 Carroll Avenue
Memphis, TN 38105
FOR THE APPELLEE:
JOHN KNOX WALKUP
Attorney General and Reporter
PETER M. COUGHLAN
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
J. ROBERT CARTER, JR.
Assistant District Attorney General
Criminal Justice Complex
201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947
Judge:RILEY
First Paragraph:
Defendant was convicted by a Shelby County jury of driving under the
influence of an intoxicant in violation of Tenn. Code Ann. S
55-10-401. The trial court fined him $600 and sentenced him to serve
45 days, all but 48 hours suspended, followed by 11 months and 29
days on probation. In cross-appeals the defendant challenges the
admissibility of breath alcohol test results from a Siemens Alcomat
device; the state challenges the sentence imposed. This court
concludes that the test results were erroneously admitted and that the
sentence imposed was improper. Thus, we REVERSE AND REMAND with the
admonition that should defendant be found guilty upon retrial, the
proper sentence is 11 months and 29 days with an appropriate portion
of that sentence suspended and the balance on probation.
URL:http://www.tba.org/tba_files/TCCA/grahamrl_opn.WP6
STATE OF TENNESSEE
VS.
CARLOS D. HAYWOOD
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
A. C. WHARTON, JR. JOHN KNOX WALKUP
Shelby County Public Defender Attorney General & Reporter
BARRY KUHN ELIZABETH T. RYAN
Assistant Public Defender Assistant Attorney General
(At Trial) Criminal Justice Division
425 Fifth Ave. North
WALTER GWINN 2d Floor, Cordell Hull Bldg.
Assistant Public Defender Nashville, TN 37243-0493
(On Appeal)
201 Poplar Ave., Suite 201 WILLIAM L. GIBBONS
Memphis, TN 38103-1947 District Attorney General
PATIENCE R. BRANHAM
LEE V. COFFEE
Assistant District Attorneys General
201 Poplar Ave., Suite 301
Memphis, TN 38103-1947
Judge:WITT
First Paragraph:
The defendant, Carlos D. Haywood, was convicted in a jury trial in the
Shelby County Criminal Court of felony murder and attempt to commit
especially aggravated robbery. After a bifurcated trial in which the
state sought a life sentence without the possibility of parole, the
jury found that the aggravating circumstance did not outweigh the
mitigating circumstances beyond a reasonable doubt and sentenced the
defendant to life with the possibility of parole. The trial court
sentenced the defendant to a consecutive sentence of twelve years as a
Range I offender for attempted especially aggravated robbery, a class
B felony. In this appeal, the defendant contends (1) that the
evidence is legally insufficient to sustain his convictions, (2) that
the trial court erred in admitting testimony about the defendant's
gang affiliation, (3) that admission of five photographs of the
victim's body taken during the autopsy were unfairly prejudicial, and
(4) that his sentence is excessive. Our review of the record has
uncovered no error requiring reversal of the defendant's convictions.
We find, however, that the trial court incorrectly applied several
enhancement factors to the defendant's sentence. Therefore, we affirm
the judgment of the trial court but modify the defendant's sentence
for attempted especially aggravated robbery.
URL:http://www.tba.org/tba_files/TCCA/haywdc_opn.WP6
STATE OF TENNESSEE
VS.
JOHNNY LAWRENCE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
A.C. WHARTON JOHN KNOX WALKUP
Public Defender Attorney General and Reporter
WALKER GWINN GEORGIA BLYTHE FELNER
Assistant Public Defender Assistant Attorney General
201 Poplar Avenue 425 Fifth Avenue North
Memphis, TN 38103 Nashville, TN 37243
WILLIAM GIBBONS
District Attorney General
DAVID C. HENRY
Assistant District Attorney General
Criminal Justice Complex, Suite 301
201 Poplar Avenue
Memphis, TN 38103
Judge:WELLES
First Paragraph:
The Defendant, Johnny Lawrence, pursuant to Tennessee Rule of
Appellate Procedure 3(b), appeals as of right his convictions for
driving under the influence of an intoxicant--second offense and
reckless driving. The sole issue for review by this Court is whether
his conviction on both charges under the facts of this case violates
Defendant's right against double jeopardy as provided by the Tennessee
Constitution. We conclude that it does not, and we affirm the verdict
of the jury as approved by the trial court.
URL:http://www.tba.org/tba_files/TCCA/lawrenjo_opn.WP6
STATE OF TENNESSEE
VS.
RATHAL PERKINS
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
CLIFFORD K. McGOWN, JR. JOHN KNOX WALKUP
113 North Court Square Attorney General and Reporter
P.O. Box 26
Waverly, TN 37185 CLINTON J. MORGAN
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
CLAYBURN L. PEEPLES
District Attorney General
109 East First Street
Trenton, TN 38382
Judge:WELLES
First Paragraph:
The Defendant, Rathal Perkins, was convicted of first degree murder
and sentenced to life imprisonment. He now appeals his conviction,
pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. The
Defendant presents only one issue on appeal: whether the evidence is
sufficient to support a finding of premeditation to sustain his
conviction for first degree murder. We affirm the judgment of the
trial court.
URL:http://www.tba.org/tba_files/TCCA/perkinsr_opn.WP6
STATE OF TENNESSEE
VS.
GEORGE WASHINGTON
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
A.C. WHARTON JOHN KNOX WALKUP
Public Defender Attorney General and Reporter
WALKER GWINN GEORGIA BLYTHE FELNER
Assistant Public Defender Assistant Attorney General
201 Poplar Avenue 425 Fifth Avenue North
Memphis, TN 38103 Nashville, TN 37243-0493
WILLIAM GIBBONS
District Attorney General
JULIE MOSLEY
Assistant District Attorney General
Criminal Justice Complex, Suite 301
201 Poplar Avenue
Memphis, TN 38103
Judge:WELLES
First Paragraph:
The Defendant, George Washington, pursuant to Tennessee Rule of
Appellate Procedure 3(b), appeals as of right his conviction for
driving under the influence of an intoxicant. The sole issue we
review on appeal is whether the evidence presented at trial was
sufficient to convict Defendant of that offense. We conclude that the
evidence overwhelmingly supports the finding of Defendant's guilt, and
we therefore affirm his conviction.
URL:http://www.tba.org/tba_files/TCCA/washinge_opn.WP6
STATE OF TENNESSEE
VS.
CHRISTOPHER A. WILLIAMS
Court:TCCA
Attorneys:
For Appellant: For Appellee:
James V. Ball John Knox Walkup
Attorney at Law Attorney General & Reporter
217 Exchange Avenue
Memphis, TN 38105 Peter M. Coughlan
Assistant Attorney General
425 Fifth Avenue North
Cordell Hull Building, Second Floor
Nashville, TN 37243-0493
Patience Branham
Assistant District Attorney General
Criminal Justice Complex
201 Poplar Street, Suite 301
Memphis, TN 38103
Judge:WADE
First Paragraph:
The defendant, Christopher A. Williams, was indicted for first degree
murder, felony murder and attempted aggravated robbery and tried as an
adult. The first trial ended in a mistrial. In the second trial, the
jury could not reach a verdict on either of the murder indictments but
found the defendant guilty of attempted aggravated robbery. The
defendant, fourteen years old at the time of the offense, was
sentenced as a Range I offender to six years in the county workhouse
and fined $1,000.00. In this appeal of right, the defendant
challenges the sufficiency of the evidence.
URL:http://www.tba.org/tba_files/TCCA/williams_wpd.WP6
WALTER JAMES WILSON
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
MARY CAY JERMANN JOHN KNOX WALKUP
P.O. Box 3410 Attorney General and Reporter
Memphis, TN 38173
DOUGLAS D. HIMES
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM GIBBONS
District Attorney General
MICHAEL H. LEAVITT
Assistant District Attorney General
Criminal Justice Complex, Suite 301
201 Poplar Avenue
Memphis, TN 38103
Judge:WELLES
First Paragraph:
The Petitioner, Walter Wilson, was convicted of second degree murder
based upon a guilty plea. He now appeals as of right the trial
court's denial of post-conviction relief, pursuant to Tennessee Code
Annotated S 40-30-216 and Rule 3(b) of the Tennessee Rules of
Appellate Procedure. We affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/wilsonwa_opn.WP6
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