April 21, 1999
Volume 5 -- Number 052

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink from Tennessee's three appellate courts.

This Issue (IN THIS ORDER):
 
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
14 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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Lucian T. Pera
Editor-in-Chief, TBALink

IN RE:  AMENDMENTS TO SUPREME COURT RULE 7, PREFACE AND SECTIONS
2.01, 3.11, 4.02, 6.02, 8.02, 10.04, 12.15 AND 14.01

Court:TSC - Rules

ANDERSON, Chief Justice

First Paragraph:

Supreme Court Rule 7, which governs the licensing of attorneys to
practice law in Tennessee, is amended as follows:

http://www.tba.org/tba_files/TSC_Rules/rule7_99.WP6



BONHAM GROUP INC. VS. CITY OF MEMPHIS and COUNTY OF SHELBY Court:TCA Attorneys: Tim Edwards; Glassman, Jeter, Edwards and Wade, P.C. of Memphis For Appellant Joseph T. Getz, Michael D. Herrin; Less, Getz & Lipman of Memphis For Appellees Judge:CRAWFORD First Paragraph: This appeal involves yet another of the multiple disputes that arose in connection with the construction of The Pyramid arena in Memphis. Appellant, Bonham Group Inc. (Bonham), appeals the order of the trial court dismissing its suit against Appellees, City of Memphis (City) and County of Shelby (County). http://www.tba.org/tba_files/TCA/bonhamgr_opn.WP6
STUART BOWDEN VS. MEMPHIS BOARD OF EDUCATION Court:TCA Attorneys: Charles Hampton White, Jay N. Chamness; Cornelius & Collins, LLP, of Memphis, For Appellant Ernest G. Kelly, Jr.; Evans & Petree of Memphis For Appellee Judge:CRAWFORD First Paragraph: This is a teacher tenure case. Plaintiff/Appellant, Stuart Bowden, appeals the order of the trial court granting summary judgment to Defendant/Appellee, Memphis Board of Education (Board). http://www.tba.org/tba_files/TCA/bowdenst_opn.WP6
ELPIDIO PETE PLACENCIA VS. LAUREN ROCHELLE PLACENCIA Court:TCA Attorneys: Edward M. Bearman, Anthony Sammons, BRANSON & BEARMAN, PLLC, Memphis, Tennessee Attorneys for Plaintiff/Appellant. Robert A. Talley, BROWN, BRASHER & SMITH, Memphis, Tennessee Attorney for Defendant/Appellee. Judge: BROWN First Paragraph: In this child custody dispute, the trial court granted a petition to change custody filed by Lauren Rochelle Placencia. The court also ordered Elpidio Pete Placencia to pay discretionary costs and attorney fees incurred by Mrs. Placencia. Mr. Placencia appeals the ruling of the trial court. Because we find no material change in circumstances occurring subsequent to the parties' original custody agreement, we reverse the trial court's order granting Mrs. Placencia's petition to change custody. Additionally, because we find that the court did not abuse its discretion in awarding costs to Mrs. Placencia, we affirm the portion of the trial court's ruling regarding this matter. Finally, because we find no statutory authority under which Mrs. Placencia may recover attorney fees, we vacate the trial court's ruling to the extent that it awarded attorney fees to Mrs. Placencia. http://www.tba.org/tba_files/TCA/placenci_opn.WP6
STATE OF TENNESSEE VS. ANTHONY BONAM Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: A C WHARTON JOHN KNOX WALKUP District Public Defender Attorney General & Reporter WALKER GWINN ELIZABETH T. RYAN Asst. Public Defender Asst. Attorney General (On Appeal) John Sevier Bldg. 425 Fifth Ave., North BYRON WINSETT Nashville, TN 37243-0493 -and- DIANNE THACKERY WILLIAM L. GIBBONS Asst. Public Defenders District Attorney General 201 Poplar Ave., Suite 201 Memphis, TN 38103 JAMES LAMMEY (At Trial) -and- JERRY HARRIS Asst. District Attorneys General 201 Poplar Ave., Suite 301 Memphis, TN 38103 Judge:PEAY First Paragraph: The defendant was convicted of burglary of a motor vehicle and sentenced as a Range III persistent offender to serve five years in the Department of Correction. He now appeals, arguing that he was denied due process of law and a trial by jury because the trial court instructed the jury with what he appears to claim is a mandatory presumption on the issue of intent. Finding no merit to the defendant's argument, we affirm his conviction and sentence. http://www.tba.org/tba_files/TCCA/bonama_opn.WP6
TIMOTHY R. BOWLES VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: Terry J. Canady John Knox Walkup 211 Printer's Alley Bldg Attorney General and Reporter Suite 400 425 Fifth Avenue North Nashville, TN 37201 Nashville, TN 37243-0493 Bill Lane Timothy Behan 3200 West End Avenue Assistant Attorney General Nashville, TN 37203 Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493 Mary Hausman Assistant District Attorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1407 Judge:OGLE First Paragraph: On June 18, 1997, the appellant, Timothy R. Bowles, was convicted by a jury in the Criminal Court for Davidson County of aggravated rape, attempted rape, two counts of aggravated burglary, and robbery. The trial court imposed an effective sentence of forty-five years in the Tennessee Department of Correction. http://www.tba.org/tba_files/TCCA/Bowles_doc.WP6
STATE OF TENNESSEE VS. JOHN GREER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: A C WHARTON JOHN KNOX WALKUP District Public Defender Attorney General & Reporter WALKER GWINN CLINTON J. MORGAN Asst. Public Defender Asst. Attorney General 201 Poplar Ave. Cordell Hull Bldg., 2nd Fl. Memphis, TN 38103 425 Fifth Ave., North (On Appeal) Nashville, TN 37243-0493 DIANE THACKERY WILLIAM L. GIBBONS Asst. Public Defender District Attorney General 201 Poplar Ave., 2nd Fl. Memphis, TN 38103 JAMES M. LAMMEY (At Trial) Asst. District Attorney General 201 Poplar Ave., 3rd Fl. Memphis, TN 38103 Judge: PEAY First Paragraph: On March 11, 1998, the defendant was found guilty by a jury of theft of property valued at over one thousand dollars ($1000) but less than ten thousand dollars ($10,000) in violation of T.C.A. S 39-14-103. At a subsequent hearing, the trial court sentenced the defendant as a career offender to a term of twelve years to be served in the Tennessee Department of Correction. The defendant now appeals and argues that the evidence presented at trial is insufficient to support his conviction. We affirm his conviction and sentence. http://www.tba.org/tba_files/TCCA/greerj_opn.WP6
GRANT C. IVEY VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Gerald L. Melton John Knox Walkup District Public Defender Attorney General of Tennessee 201 West Main Street and Murfreesboro, TN 37130 Elizabeth B. Marney (AT TRIAL) Assistant Attorney General of Tennessee 425 Fifth Avenue North Grant C. Ivey, Pro se Nashville, TN 37243-0493 Turney Center Unit 3 Route 1 William C. Whitesell, Jr. Only, TN 37140-9709 District Attorney General Judicial Bldg., Ste 303 20 N. Public Square Murfreesboro, TN 37130 Judge:TIPTON First Paragraph: The petitioner, Grant C. Ivey, pro se, appeals as of right from the Rutherford County Circuit Court's order dismissing his petition for post-conviction relief. He contends (1) that his convictions upon guilty pleas to two counts of attempt to commit second degree murder and to especially aggravated robbery violate the Double Jeopardy Clause of the United States Constitution and (2) that he received the ineffective assistance of counsel when counsel advised him to plead guilty. The trial court dismissed the petition for being untimely filed and for the petitioner failing to allege or show any basis for relief. Although we conclude that the petition was filed timely, we hold that no violation of the Double Jeopardy Clause has been shown. http://www.tba.org/tba_files/TCCA/Iveygc_opn.WP6
STATE OF TENNESSEE VS. CLINTON E. KEY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MARY GRIFFIN JOHN KNOX WALKUP Asst Public Defender Attorney General and Reporter 1202 Stahlman Bldg Nashville, TN 37201 CLINTON J. MORGAN Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON District Attorney General PAMELA ANDERSON Assistant District Attorney General Washington Square, Suite 500 Nashville, TN 37201-1649 Judge:WELLES First Paragraph: The Defendant, Clinton E. Key, appeals his sentences of thirty days for disorderly conduct; six months for resisting arrest; thirty days for criminal trespass; and eleven months, twenty-nine days for assault. Following a jury trial, the trial court ordered Defendant to serve the sentences consecutively in the county jail, with release eligibility at seventy-five percent. Defendant argues that the trial court erred by imposing the maximum sentence on each conviction and by ordering the sentences served consecutively. http://www.tba.org/tba_files/TCCA/Keyca_opn.WP6
STATE OF TENNESSEE VS. SHAWN D. LESLEY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: F. MICHIE GIBSON, JR. JOHN KNOX WALKUP 1416 Parkway Towers Attorney General and Reporter 404 James Robertson Parkway Nashville, TN 37219 LISA A. NAYLOR Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON District Attorney General JOHN ZIMMERMANN Assistant District Attorney 222 2nd Avenue, No. Nashville, TN 37201 Judge:SMITH First Paragraph: On November 15, 1995, a Davidson County jury convicted Appellant Shawn D. Lesley of second degree murder. On February 29, 1996, the trial court sentenced Appellant as a Range I standard offender to a term of twenty years. Appellant filed a motion for a new trial on March 28, 1996, and an amended motion for a new trial on September 6, 1996. The trial court denied the motion for a new trial on October 4, 1996. http://www.tba.org/tba_files/TCCA/Lesleysh_opn.WP6
JANICE P. LESLIE VS. CHARLES H. CALDWELL and PATRICIA J. CALDWELL Court:TCCA Attorneys: Fred M. Ridolphi, Jr., HUMPHREYS, DUNLAP, WELLFORD, ACUFF & STATON, Memphis, Tennessee For Plaintiff/Appellant. Joe W. Darden, Memphis, Tennessee, for Defendants/Appellees Judge:FARMER First Paragraph: Plaintiff Janice P. Leslie appeals the trial court's judgment denying her claim for misrepresentation against Defendants/Appellees Charles H. and Patricia J. Caldwell and awarding the Caldwells the sum of $82,147 on their counterclaim against Leslie, plus attorney's fees in the amount of $6100. We affirm the trial court's judgment based upon our conclusion that the evidence does not preponderate against the trial court's findings of fact. http://www.tba.org/tba_files/TCCA/lesliejp_opn.WP6
STATE OF TENNESSEE VS. MITCHELL EDWARD MINGIE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CONRAD FINNELL JOHN KNOX WALKUP P. O. Box 1476 Attorney General and Reporter Cleveland, TN 37364-1476 ELLEN H. POLLACK Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 BILL COX District Attorney General PARKE MASTERSON Assistant District Attorney City and County Courts Building Chattanooga, TN 37402 Judge: SMITH First Paragraph: The appellant, Mitchell Edward Mingie, was convicted by a Hamilton County jury of one (1) count of driving under the influence of an intoxicant, fifth offense. He also pled guilty to one (1) count of driving on a revoked license. The trial court sentenced Appellant to concurrent terms of six (6) months for driving on a revoked license and eleven (11) months and twenty-nine (29) days for driving under the influence. On appeal, Appellant claims that the evidence was insufficient to sustain the jury's verdict for driving under the influence. After a thorough review of the record before this Court, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/Mingiemi_opn.WP6
STATE OF TENNESSEE VS. DONALD K. MOORE, JR. Court:TCCA Attorneys: For Appellant For Appellee Monte D. Watkins John Knox Walkup 1510 Parkway Towers Attorney General and Reporter Nashville, TN 37219 425 Fifth Avenue North Nashville, TN 37243-0493 Kim R. Helper Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Tom Thurman Assistant District Attorney General Washington Sq., Suite 500 222 2nd Ave. N. Nashville, TN 37201-1649 Judge:OGLE First Paragraph: The appellant was convicted by a jury in the Davidson County Criminal Court of one count of felony murder and one count of especially aggravated robbery. The trial court imposed consecutive sentences of life imprisonment in the Tennessee Department of Correction for the felony murder conviction and twenty (20) years incarceration in the Department for the especially aggravated robbery conviction. http://www.tba.org/tba_files/TCCA/Moore_doc.WP6
STATE OF TENNESSEE VS. JAMELL RICHMOND Court:TCCA Attorneys: For the Appellant: For the Appellee: James V. Ball Paul G. Summers 217 Exchange Avenue Attorney General of Tennessee Memphis, TN 38103 and (AT TRIAL) Patricia C. Kussmann Assistant Attorney General of Tennessee A. C. Warton, Jr. 450 James Robertson Parkway District Public Defender Nashville, TN 37243-0493 and Walker Gwinn William L. Gibbons Assistant Public Defender District Attorney General 201 Poplar Avenue and Memphis, TN 38103 David Henry (ON APPEAL) Assistant District Attorney General 201 Poplar Avenue, 3rd Floor Memphis, TN 38103 Judge:TIPTON First Paragraph: The defendant, Jamell Richmond, appeals as of right from his conviction by a jury in the Shelby County Criminal Court for aggravated burglary, a Class C felony. He was sentenced as a Range II, multiple offender to ten years in the custody of the Department of Correction. The defendant contends that there was insufficient evidence to convict. We affirm the trial court. http://www.tba.org/tba_files/TCCA/richmonj_opn.WP6
DAVID A. SCOTT, III VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: Robert J. Mendes John Knox Walkup Stanton & Mendes, PLLC Attorney General and Reporter Cummins Station, Suite 507 425 Fifth Avenue North 209 Tenth Avenue South Nashville, TN 37243-0493 Nashville, TN 37203 Timothy Behan Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493 Mary Hausman Assistant District Attorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649 Judge:OGLE First Paragraph: The petitioner in this case, David A. Scott, III, appeals the dismissal of his Petition for Post-Conviction Relief by the Criminal Court for Davidson County. On July 19, 1991, the petitioner was convicted in the Davidson County Criminal Court of aggravated rape and sentenced to sixteen years incarceration in the Tennessee Department of Correction. On February 11, 1993, this court affirmed the petitioner's conviction. State v. Scott, No. 01C01-9202-CR-00053, 1993 WL 31990 (Tenn. Crim. App. at Nashville), perm. to appeal denied, (Tenn. 1993). On February 12, 1996, the petitioner filed the instant Petition for Post-Conviction Relief. Amended petitions were filed on August 5, 1996, and March 24, 1997. The trial court conducted a hearing on September 3, 1997, and, following the presentation of the petitioner's proof, dismissed the petition. http://www.tba.org/tba_files/TCCA/Scott_doc.WP6
STATE OF TENNESSEE VS. DONALD TALLI Court:TCCA Attorneys: For the Appellant: For the Appellee: Guy T. Wilkinson Michael E. Moore District Public Defender Attorney General and Reporter Billy R. Roe, Jr. J. Ross Dyer Asst. District Public Defender Assistant Attorney General 117 North Forrest Avenue Criminal Justice Division Camden, TN 38320 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 G. Robert Radford District Attorney General Eleanor Cahill Asst. District Attorney General Post Office Box 686 Huntingdon, TN 38344 Judge:HAYES First Paragraph: The appellant, Donald Tallie, was convicted by a jury in the Carroll County Circuit Court of one count of sale of cocaine less than .5 grams, a Class C felony, and one count of sale of cocaine greater than .5 grams, a Class B felony. The trial court imposed concurrent sentences of eight years for the Class C felony and sixteen years for the Class B felony as a Range II multiple offender. The appellant's sole challenge on appeal is the sufficiency of the convicting evidence. http://www.tba.org/tba_files/TCCA/tallied_opn.WP6
STATE OF TENNESSEE VS. ANTONIO WARD Court:TCCA Attorneys: For the Appellant: For the Appellee: George Morton Googe John Knox Walkup District Public Defender Attorney General of Tennessee and and Stephen P. Spracher Georgia Blythe Felner Assistant Public Defender Assistant Attorney General of Tennessee 227 West Baltimore Street 450 James Robertson Parkway Jackson, TN 38301 Nashville, TN 37243-0493 (AT TRIAL) James G. (Jerry) Woodall George Morton Googe District Attorney General District Public Defender and 227 West Baltimore Street James W. Thompson Jackson, TN 38301 Assistant District Attorney General (ON APPEAL) 225 Martin Luther King Drive P.O. Box 2825 Clifford K. McGown, Jr. Jackson, TN 38302-2825 113 N. Court Square P.O. Box 26 Waverly, TN 37185 (ON APPEAL) Judge:TIPTON First Paragraph: The defendant, Antonio Ward, appeals as of right from the revocation of his probation by the Madison County Circuit Court. He asserts that he should have been sentenced to community corrections instead of to the Department of Correction. We disagree. The defendant was sentenced in 1992 to six years for aggravated assault. He was to serve six months in the workhouse and the remaining five years and six months on probation. He was transferred to the Madison County community corrections program. In 1993, the defendant sought permission to move to Illinois. Finding that the defendant had been successful in the community corrections program, the trial court transferred the defendant to the Department of Correction's probation program to facilitate his move. http://www.tba.org/tba_files/TCCA/warda_opn.WP6
RONALD WARD VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Teresa M. Marshall Paul G. Summers Attorney at Law Attorney General and Reporter 308 W. Washington St. Paris, TN 38242 Georgia Blythe Felner Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 Robert "Gus" Radford District Attorney General Post Office Box 686 Huntingdon, TN 38344 Judge: HAYES First Paragraph: The appellant, Ronald Ward, appeals from an order entered in the Henry County Circuit Court dismissing his petition for post-conviction relief. On appeal, the appellant contends, first, that his counsel was ineffective for his failure to investigate and pursue a defense, specifically the defense of entrapment, and second, that his guilty pleas were involuntary because trial counsel misled him as to the meaning of the thirty percent (30%) release eligibility date. http://www.tba.org/tba_files/TCCA/wardrona_opn.WP6

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