April 26, 1999
Volume 5 -- Number 054

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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
05 New Opinion(s) from the Tennessee Court of Appeals
10 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

BVT LEBANON SHOPPING CENTER, LTD. 
VS. 
WAL-MART STORES, INC., a
corporation; and KUHN'S-BIG-K STORES CORP.

Court:TCA

Attorneys:

THOMAS V. WHITE
KENNETH F. SCOTT
Tune, Entrekin & White, P.C.
21st Floor, First American Center
315 Deaderick Street
Nashville, Tennessee  37238
    ATTORNEYS FOR PLAINTIFF/APPELLEE


JON B. COMSTOCK
702 S.W. 8th Street
Bentonville, Arkansas  72716

THOMAS W. LAWRENCE, JR.
Parker, Lawrence, Cantrell & Dean
200 Fourth Avenue North
Fifth Floor
Nashville, Tennessee  37219

NEAL AGEE, JR.
Agee, Agee & Lannom
P. O. Box 649
Lebanon, Tennessee  37088-0649
    ATTORNEYS FOR DEFENDANTS/APPELLANTS
    
Judge: CAIN

First Paragraph:

This is a suit by a limited partnership as owner of a shopping center
in Lebanon, Tennessee against Wal-Mart Stores, Inc. alleging breach of
a lease contract.

http://www.tba.org/tba_files/TCA/Bvtwalm_opn.WP6



FREDERICK WAYNE CAVITT VS. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: FREDERICK WAYNE CAVITT #108657 N.W.C.C. 3/B/202 Route 1, Box 660 Tiptonville, TN 38079 PRO SE/PETITIONER/APPELLANT JOHN KNOX WALKUP Attorney General and Reporter MICHAEL E. MOORE Solicitor General PATRICIA C. KUSSMANN, BPR 15506 Assistant Attorney General Civil Rights and Claims Division 425 Fifth Avenue North Second Floor, Cordell Hull Building Nashville, Tennessee 37243-0488 ATTORNEYS FOR RESPONDENT/APPELLEE Judge:COTTRELL First Paragraph: In this appeal, a state prisoner challenges the extension of his parole eligibility date by the Department of Correction which resulted from a disciplinary proceeding for infraction of department policies. Mr. Cavitt, the Appellant, contends the 1991 extension increased his 1985 sentence ex post facto. The trial court dismissed Mr. Cavitt's complaint for declaratory judgment for failure to state a claim upon which relief could be granted. We affirm. http://www.tba.org/tba_files/TCA/Cavitf_opn.WP6
STATE OF TENNESSEE VS. DENETRA SHAWN COOK Court:TCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CLIFFORD K. McGOWN JOHN KNOX WALKUP 113 North Court Square Attorney General & Reporter P.O. Box 26 Waverly, TN 37185 ELIZABETH B. MARNEY (On Appeal Only) Assistant Attorney General 2nd Floor, Cordell Hull Building JOHN HARWELL DICKEY 425 Fifth Avenue North District Public Defender Nashville, TN 37243 MICHAEL D. RANDLES WILLIAM MICHAEL McCOWN Assistant Public Defender District Attorney General 105 South Main Street P.O. Box 1119 WEAKLEY E. BARNARD Fayetteville, TN 37334 Assistant District Attorney General (At Trial and On Appeal) Marshall Co. Courthouse, Room 407 Lewisburg, TN 37091 Judge:WOODALL First Paragraph: The Defendant, Denetra Shawn Cook, appeals as of right following her conviction and sentencing hearing in the Marshall County Circuit Court. On March 20, 1991, Defendant was charged with felonious escape when she escaped from the Marshall County authorities after being arrested for burglary. Defendant remained at large until 1997. On July 9, 1997, Defendant entered a plea of guilty to felonious jail escape in violation of Tennessee Code Annotated section 39-16-605. Following a sentencing hearing, the trial court subsequently sentenced Defendant to serve two (2) years, to spend sixty (60) days of that sentence incarcerated with the balance to be served on probation. Defendant contends that the trial court erred in ordering the Defendant to serve sixty (60) days of her sentence incarcerated before placing her on probation. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/Cookds_opn.WP6
ADMINISTRATIVE BOARD FOR FIRST UNITED METHODIST CHURCH OF TRACY CITY, TENNESSEE, VS. TENNESSEE DEPARTMENT OF HUMAN SERVICES, FAGAN THOMPSON, individually and as Program Manager for DHS, SOUTHEAST TENNESSEE PRIVATE INDUSTRY COUNCIL, INC., and WANZA LEE Court:TCA Attorneys: Michael A. McMahan, Chattanooga, for Appellant Southeast Tennessee Private Industry Council, Inc. Gregory M. O'Neal, Winchester, for Appellee. Judge:INMAN First Paragraph: This regrettable controversy arose from an essential misunderstanding between good people dealing in good faith to provide good services to economically disadvantaged families in Grundy and surrounding counties. http://www.tba.org/tba_files/TCA/Fumc_ca1.WP6
JACKIE N. MULLINAX VS. TERRY O. MULLINAX, Court:TCA Attorneys: J. HILTON CONGER 200 South Third Street Smithville, Tennessee 37166 ATTORNEY FOR PLAINTIFF/APPELLEE WM. KENNERLY BURGER SunTrust Bank Building, Suite 306 201 East Main Street P. O. Box 1969 Murfreesboro, Tennessee 37133-1969 ATTORNEY FOR DEFENDANT/APPELLANT Judge:CAIN First Paragraph: This appeal arises out of the dissolution of the parties' twenty-three year long marriage. The trial court granted the wife rehabilitative alimony for a two-year period. The husband has appealed raising only the issue of the propriety of the lower court's alimony award. We disagree with the husband's assertion that the evidence preponderates against this alimony award, and accordingly, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/Mullinax_opn.WP6
JACK JOSEPH EADS and CHRISTINE EADS, VS. STATE OF TENNESSEE, Court:TCCA Attorneys: For the Appellant: For the Appellee: Trippe Steven Fried John Knox Walkup 302 Third Avenue So Attorney General of Tennessee Franklin, TN 37064 and Lisa A. Naylor Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 Joseph D. Baugh, Jr. District Attorney General P.O. Box 937 Franklin, TN 37064 Judge:TIPTON First Paragraph: The petitioners, Jack Joseph Eads and Christine Eads, appeal as of right from the Williamson County Circuit Court's denial of their petition for post-conviction relief. The petitioners seek relief from their 1992 convictions for aggravated rape and attempted aggravated sexual battery, for which Jack Eads received concurrent sentences of twenty-five years and two years, and Christine Eads received concurrent sentences of fifteen years and one year, respectively. Both petitioners were fined three thousand dollars for the attempted aggravated sexual battery convictions. This court affirmed the judgments of conviction in State v. Jack Joseph Eads and Chris Eads, No. 01C01-9307-CC-00229, Williamson County (Tenn. Crim. App. June 28, 1995). http://www.tba.org/tba_files/TCCA/Eadsjj_opn.WP6
STATE OF TENNESSEE VS. DARRYL GENE FARMER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN E. HERBISON JOHN KNOX WALKUP 2016 Eighth Ave.South Attorney General & Reporter Nashville, TN 37204 (On Appeal) KAREN M. YACUZZO Asst. Attorney General DAN BRYANT Cordell Hull Bldg., 2nd Fl. District Public Defender 425 Fifth Ave., North Nashville, TN 37243-0493 DALE POTTER WILLIAM LOCKE Asst. Public Defender Asst. District Attorney General 118 N. College St. 111 W. Court St. McMinnville, TN 37111 McMinnville, TN 37111 (At Trial) Judge:PEAY First Paragraph: On September 30, 1993, the defendant was found guilty by a jury of first-degree murder and sentenced to life in prison. In the defendant's first direct appeal, this Court remanded the case to the trial court to find whether the defendant requested counsel during questioning prior to confessing to the crime. On remand, the trial court found that the defendant "did not invoke his right to counsel, even in an equivocal manner." The defendant's conviction was then reinstated in accordance with the order of this Court. The defendant now appeals and argues that the evidence preponderates against the trial court's finding. After a review of the record and applicable law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Farmerd_opn.WP6
STATE OF TENNESSEE VS. KING DAVID JOHNSON Court:TCCA Attorneys: 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 MARVIN E. CLEMENTS, JR. Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 MIKE BOTTOMS District Attorney General P.O. Box 459 Lawrenceburg, TN 38464 Judge:WELLES First Paragraph: The Defendant, King David Johnson, appeals as of right his sentence of twenty years in the Department of Correction for the second degree murder of his girlfriend. Defendant was indicted in 1993 for first degree murder, and a jury convicted him of second degree murder in February 1996. Following a sentencing hearing, the trial court sentenced him to twenty years as a Range I offender. In his first appeal to this Court, Defendant challenged the sufficiency of the evidence and the length of his sentence. This Court affirmed his conviction for second degree murder, but remanded his case for resentencing because the trial judge failed to place on the record what enhancement or mitigating factors he found, as well as findings of fact, in accordance with the mandate of Tennessee Code Annotated S 40-30-210(f). State v. King David Johnson, No. 01C01-9610-CC-00430, 1997 WL 661501, at *4 (Tenn. Crim. App., Nashville, Oct. 24, 1997). http://www.tba.org/tba_files/TCCA/Johnsokd_opn.WP6
STATE OF TENNESSEE VS. JASPER D. LEWI Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JEFFREY A. DEVASHER JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter (On Appeal) KAREN M. YACUZZO DAVID BAKER Assistant Attorney General Assistant Public Defender 425 5th Avenue N. (At Trial) Nashville, TN 37243 JEFFERSON T. DORSEY VICTOR S. JOHNSON Assistant Public Defender District Attorney General (At Trial) 1202 Stahlman Building KATRIN MILLER Nashville, TN 37201 Assistant District Attorney 222 Second Avenue, North Suite 500 Nashville, TN 37201 Judge:SMITH First Paragraph: On September 14, 1995, a Davidson County jury convicted Appellant Jasper D. Lewis of one count of first degree murder and one count of robbery. The trial court subsequently sentenced Appellant as a Range I standard offender to consecutive terms of life imprisonment for the first degree murder conviction and five years for the robbery conviction. http://www.tba.org/tba_files/TCCA/Lewisjas_opn.WP6
STATE OF TENNESSEE VS. JEFFERY L. PERRY Court:TCCA Attorneys: For Appellant: For Appellee: Shipp R. Weems John Knox Walkup District Public Defender Attorney General & Reporter Carey J. Thompson Daryl J. Brand and Senior Counsel Mitch Dugan Criminal Justice Division Asst Public Defenders 425 Fifth Avenue North P.O. Box 160 Nashville, TN 37243 Charlotte, TN 37036 Robert S. Wilson Assistant District Attorney General Court Square, P.O. Box 580 Charlotte, TN 37036 Judge:WADE First Paragraph: The defendant, Jeffery L. Perry, was convicted in the second degree murder of his father, Leon Perry. The trial court sentenced the defendant, who qualified as a violent offender, to fifteen years imprisonment in a special needs facility. In this appeal of right, the defendant presents the following issues for review: (I) whether the evidence is sufficient to support the conviction for second degree murder; (II) whether the trial court erred by denying the defendant's motion to suppress his custodial statement; and (III) whether Tenn. Code Ann. S 39-11-501, the statute governing the affirmative defense of insanity, is unconstitutional. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Perryjl_opn.WP6
STATE OF TENNESSEE VS. DREW V. SAUNDERS Court:TCCA Attorneys: FOR THE APPELLEE: FOR THE APPELLANT: LIONEL R. BARRETT, JR. JOHN KNOX WALKUP Washington Square Two Attorney General and Reporter Suite 418 222 Second Avenue, No. DARYL J. BRAND Nashville, TN 37201 Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON District Attorney General GEORGE R. BONDS Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue, North Nashville, TN 37201 Judge:WELLES First Paragraph: The State of Tennessee appeals the trial court's dismissal of an indictment for DUI against Defendant, Drew V. Saunders. Defendant urges this Court to affirm the dismissal, arguing that the State exhibited prosecutorial vindictiveness in violation of his right to due process. The State, however, denies vindictiveness, contending that the actions taken by the assistant district attorney constituted part of the natural plea bargaining process. Furthermore, the State argues that the trial court improperly dismissed the indictment based upon the court's perception of a lack of sufficient evidence to support the indicted charge of DUI. http://www.tba.org/tba_files/TCCA/Saundedv_opn.WP6
ALVIN SEAGROVES VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: PHILIP A. CONDRA JOHN KNOX WALKUP District Public Defender Attorney General and Reporter P.O. Box 220 200 Betsy Pack Drive KAREN M. YACUZZO Jasper, TN 37347 Asst District Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 J. MICHAEL TAYLOR District Attorney General THOMAS D. HEMBREE Asst District Attorney General Jasper, TN 37347 udge:WELLES First Paragraph: The Defendant, Alvin Seagroves, appeals the trial court's dismissal of his petition for post-conviction relief following an evidentiary hearing. In 1974, Defendant was convicted by a jury of three counts of first degree murder and one count of assault with intent to commit first degree murder. He was sentenced to life imprisonment for each murder and not less than six years or more than twenty-one years for the assault. His convictions and sentences were affirmed on appeal. State v. Alvin Seagroves, Nos. 730-733 (Tenn. Crim. App., Nashville, Sept. 15, 1976). In 1981, Defendant filed a petition for post-conviction relief which was dismissed by the trial court without an evidentiary hearing. The dismissal of that petition was affirmed on appeal. Alvin Seagroves v. State, No. 81-182-III (Tenn. Crim. App., Nashville, Jan. 22, 1982). http://www.tba.org/tba_files/TCCA/Seagroal_opn.WP6
ANTHONY JEROME STOKES VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: Rebecca G Parker, Esq. John Knox Walkup 118 Lee Pkwy Dr, Ste 201 Attorney General & Reporter Chattanooga, TN 37421 Ellen H. Pollack Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243 C. Leland Davis and Caldwell Huckabay Assistant District Attorneys General City and County Courts Building Chattanooga, TN 37402 Judge:WADE First Paragraph: The petitioner, Anthony Jerome Stokes, appeals the trial court's denial of his application for post-conviction relief. In this appeal of right, he presents two issues for review: (I) whether the trial court erred by concluding that the guilty pleas of the petitioner were made knowingly and voluntarily and (II) whether the petitioner received the ineffective assistance of counsel. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Stokesaj_opn.WP6
STATE OF TENNESSEE VS. BARRY WADDELL Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: LIONEL R. BARRETT, JR. JOHN KNOX WALKUP Washington Square Two, Ste 418 Attorney General & Reporter 222 Second Avenue North Nashville, TN 37201 DARYL J. BRAND (On Appeal Only) Assistant Attorney General 2nd Floor, Cordell Hull Building DIANNE TURNER 425 Fifth Avenue North Trial Lawyers Building Nashville, TN 37243 430 Third Avenue No, Se 101 Nashville, TN 37201-1111 VICTOR S. JOHNSON, III (At Trial Only) District Attorney General DAVID A. COLLINS WILLIAM REED 211 Printers Alley Bldg, Ste 400 Assistant District Attorney General Nashville, TN 37201 Washington Square, Suite 500 (At Trial Only) 222 2nd Avenue North Nashville, TN 37201-1649 Judge:WOODALL First Paragraph: The Defendant, Barry Waddell, appeals as of right from his conviction in the Davidson County Criminal Court. After a jury trial, Defendant was convicted of two (2) counts of rape of a child (Counts 1 and 2) and two (2) counts of aggravated sexual battery (Counts 3 and 4). Defendant was sentenced to twenty-five (25) years for each count of rape of a child and ten (10) years for each count of aggravated sexual battery, with all sentences to be served consecutively. Defendant argues that the trial court improperly sentenced him to the maximum period of incarceration for his convictions and erred in ordering his sentences to be served consecutively. We affirm in part, reverse in part, and remand for resentencing for the convictions of rape of a child. http://www.tba.org/tba_files/TCCA/Waddellb_opn.WP6
STATE OF TENNESSEE VS. BOBBY GENE WILSON, Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MICHAEL R. JONES JOHN KNOX WALKUP 19th District Public Defender Attorney General and Reporter 110 Sixth Avenue, West Springfield, TN 37172 LISA A. NAYLOR Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 JOHN CARNEY District Attorney General DENT MORRISS Assistant District Attorney Springfield, TN 37172 Judge:SMITH First Paragraph: The appellant, Bobby Gene Wilson, was convicted by a Robertson County jury of one (1) count of retaliation for past action by threatening a witness, a Class E felony. The trial court sentenced him as a Range I offender to 402 days in the Tennessee Department of Correction. Appellant's sole issue on appeal is whether the evidence was sufficient to sustain the jury's verdict. After a thorough review of the record of this Court, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/Wilsonbo_opn.WP6

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