January 18, 2000 Volume 6 -- Number 007 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 28 New Opinion(s) from the Tennessee Court of Appeals 05 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   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a plain text version of the opinion. *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WordPerfect 6.0 version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original WordPerfect 6.0 document. Lucian T. Pera Editor-in-Chief, TBALink EL-SHABAZZ AHKEEN VS. TONY PARKER, et al Court:TCA Attorneys: EL-SHABAZZ AHKEEN, pro se Henning, Tennessee PAUL G. SUMMERS Attorney General and Reporter MICHAEL E. MOORE Solicitor General STEPHANIE REEVERS Senior Counsel Civil Rights and Claims Division Nashville, Tennessee Attorney for Appellees Judge: HIGHERS First Paragraph: Ahkeen appeals the trial court's dismissal of his 42 U.S.C. S 1983 civil rights action. For the following reasons, the trial court is reversed in part and affirmed in part. http://www.tba.org/tba_files/TCA/ahkeenelsha.wpd IN THE MATTER OF: Tamika Nicole Baker, Brandon Alan Austill, Michael Christopher Austill, Kimberly Michelle Austill, Charles Damion Ray Austill, Phillip Hunter Austill, Minor Children Court:TCA Attorneys: JAMES H. BRADLEY WEBB A. BREWER Memphis Area Legal Services, Inc. Memphis, Tennessee Attorneys for Appellants, Charles & Linda Austill SABRINA D. BALL Memphis, Tennessee Attorney for Appellee Judge: HIGHERS First Paragraph: Charles Ray Austill and Linda Christine Baker Austill appeal from the judgment of the Juvenile Court of Memphis and Shelby County, which terminated the Austill's parental rights in regards to six of their minor children. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/Bakertn.wpd BLAYLOCK & BROWN CONSTRUCTION COMPANY, INC. d/b/a THE FRANK ROAD LANDFILL VS. THE COLLIERVILLE BOARD OF , MAYOR AND ALDERMEN SITTING IN PLACE OF THE MEMPHIS AND SHELBY COUNTY AIR POLLUTION CONTROL BOARD and HALLE PLANTATION HOMEOWNERS ASSOCIATION OF COLLIERVILLE, INC. Court:TCA Attorneys: C. Thomas Cates, Wendy C. Feild, BURCH, PORTER & JOHNSON, PLLC, Memphis, Tennessee Attorneys for Defendant/Appellant The Collierville Board of Mayor and Aldermen Mimi Phillips, PHILLIPS, HOWARD & GRUBB, Memphis, Tennessee Attorney for Defendant/Appellant Halle Plantation Homeowners Association for Collierville, Inc. John Farris, Dean White, FARRIS, MATHEWS, BRANAN & HELLEN P.L.C., Memphis, Tennessee Attorneys for Plaintiff/Appellee. Judge: FARMER First Paragraph: Respondents Collierville Board of Mayor and Aldermen and Halle Plantation Homeowners Association of Collierville, Inc., appeal the trial court's judgment granting the petition for writ of certiorari filed by Appellee Blaylock & Brown Construction Company, Inc., and reinstating the decision of the Memphis and Shelby County Health Department to issue a construction permit allowing Blaylock & Brown to operate an air curtain incinerator at its Frank Road Landfill in the Town of Collierville. We reverse the trial court's judgment based upon our conclusion that the court erred in ruling that the Collierville Board of Mayor and Aldermen lacked the authority to review the Health Department's issuance of the permit. http://www.tba.org/tba_files/TCA/Blaylock.wpd ALONZO BONNER VS. TRANSCON TRUCKLINE CORP., ET AL Court:TCA Attorneys: Kim G. Sims of Memphis, For Appellant G. Ray Bratton and Gary R. Wilkinson of Farris, Hancock, Gilman, Branan & Hellen of Memphis; For Appellees Judge: CRAWFORD First Paragraph: This is an appeal from an order of the circuit court of Shelby county granting the defendant-appellee's motion to quash a petition for writ of certiorari filed by plainitff-appellant. http://www.tba.org/tba_files/TCA/BONNERA.wpd CARLOSS WELL SUPPLY CO., INC. VS. HAMMETT & SONS WATER WELL & IRRIGATION, INC. Court:TCA Attorneys: John S. Richbourg, RICHBOURG & LOWRY, Memphis, Tennessee Attorney for Plaintiff/Appellant. Karen R. Cicala, Memphis, Tennessee Attorney for Defendant/Appellee. Judge: FARMER First Paragraph: Plaintiff Carloss Well Supply Co. ("Carloss") appeals an order of the trial court granting a motion to dismiss for lack of personal jurisdiction filed by Defendant Hammett & Sons Water Well & Irrigation, Inc. ("Hammett"). For the reasons set forth below, we reverse the ruling of the trial court. http://www.tba.org/tba_files/TCA/Carlosswell.wpd OLANDA CARTER VS. R. J. REYNOLDS TOBACCO CO. Court:TCA Attorneys: CURTIS D. JOHNSON, JR. Memphis, Tennessee Attorney for Appellant ALBERT C. HARVEY STEPHEN C. BARTON THOMASON, HENDRIX, HARVEY, JOHNSON & MITCHELL Memphis, Tennessee DALTON L. TOWNSEND AMY V. HOLLARS HODGES, DOUGHTY & CARSON Knoxville, Tennessee JAMES R. JOHNSON GREGORY R. HANTHORN JONES, DAY, REAVIS & POGUE Atlanta, Georgia 30308-3242 Attorneys for Appellee Judge: HIGHERS First Paragraph: Olanda Carter appeals from the Circuit Court of Shelby County, which dismissed his product liability action finding that it was barred by the applicable ten-year statute of repose. For the reasons stated herein, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/carterolanda.wpd LORENZO CHILDRESS, JR., d/b/a SOUTHGATE MEDICAL GROUP VS. UNION REALTY COMPANY, LTD., a Tennessee Limited Partnership Court:TCA Attorneys: William M. Jeter, GLASSMAN, JETER, EDWARDS & WADE, P.C., Memphis, Tennessee Attorney for Defendant/Appellant. Bruce D. Brooke, NEELY, GREEN, FARGARSON, BROOKE & SUMMERS, Memphis, Tennessee Attorney for Plaintiff/Appellee. Judge: FARMER First Paragraph: Defendant Union Realty Company, Ltd., appeals the trial court's judgment entered on a jury verdict in the amount of $168,000 in this action for negligence and breach of lease. We dismiss Union Realty's appeal without prejudice based upon our conclusion that the judgment appealed is not a final judgment appealable as of right under the Tennessee Rules of Appellate Procedure. http://www.tba.org/tba_files/TCA/Childressl.wpd DECATUR COUNTY BANK VS. ROBERT T. SMITH Court:TCA Attorneys: J. Michael Ivey of Parsons For Appellee Terry J. Leonard of Camden For Appellant Judge: CRAWFORD First Paragraph: Plaintiff/appellee, Decatur County Bank (hereinafter Bank), filed its complaint on December 23, 1997, against defendant/appellant, Robert Smith, seeking the past due balance remaining on promissory notes. Bank's complaint alleged that Smith executed and delivered two promissory notes and defaulted in the payment thereof for which judgment is sought. http://www.tba.org/tba_files/TCA/DECATU~1.wpd TAMARA KAY WILLIAMS EMISON VS. RANDY JOE EMISON Court:TCA Attorneys: Middlebrooks & Gray, P.A., of Jackson For Appellee L. L. Harrell, Jr.; Harrell & Harrell of Trenton For Appellant Judge: CRAWFORD First Paragraph: This case concerns the division of property, allocation of marital debts, alimony, child support, and life insurance as security for child support. Defendant-appellant, Randy Joe Emison (Husband), appeals from the judgment of the trial court granting an absolute divorce to plaintiff-appellee, Tamara Kay Emison (Wife). http://www.tba.org/tba_files/TCA/EMISONTK.wpd JAMES ROBERT FERGUSON VS. DEBBIE DEE WARREN Court:TCA Attorneys: James Robert Ferguson, Pro Se Judge: FARMER First Paragraph: Petitioner James Robert Ferguson appeals the trial court's judgment dismissing his action for lack of venue. We reverse the trial court's judgment because Respondent Debbie Dee Warren has not raised the defense of improper venue in this lawsuit. http://www.tba.org/tba_files/TCA/Fergusjr.wpd THOMAS H. FOWLER VS. MAXINE MIDDLECOFF, BILL YANCY, ERNESTINE BROWN, ALICE MCLANAHAN, MIKE THOMAS, Commissioners of Elections of Fayette County, Tennessee, LANITA MCGRAW, Register-at-Large, and MYLES WILSON Court:TCA Attorneys: James D. Causey; Jean E. Markowitz of Memphis, For Appellant William E. Frulla; David A. McLaughlin of Memphis, For Appellee, Wilson Leo Bearman, Jr., Lea H. Speed; Baker, Donelson, Bearman & Caldwell of Memphis, For Appellees, Middlecoff, Yancy, Brown, McClanahan, Thomas, and McGraw Judge: CRAWFORD First Paragraph: This appeal involves an election contest. Plaintiff-appellant, Thomas H. Fowler, appeals the order of the trial court confirming the election of defendant-appellee, Myles Wilson to the Fayette County Commission. http://www.tba.org/tba_files/TCA/FOWLERTH.wpd DAVID GROSS VS. SHERIFF A. C. GILLESS, JR., AND THE SHELBY COUNTY SHERIFF'S DEPARTMENT, AND SHELBY COUNTY GOVERNMENT Court:TCA Attorneys: Alan G. Crone, CRONE & MASON, P.L.C., Memphis, Tennessee Attorney for Respondents/Appellants. Alan Bryant Chambers, CHAMBERS & DURHAM, Memphis, Tennessee Attorney for Petitioner/Appellee. Judge: FARMER First Paragraph: Defendants Sheriff A.C. Gilless, Jr., the Shelby County Sheriff's Department, and Shelby County Government appeal the trial court's judgment granting the petition for writ of certiorari filed by Plaintiff/Appellee David Gross and reversing the decision of the Shelby County Civil Service Merit Board to terminate Gross from his employment with the Sheriff's Department. We reverse the trial court's judgment and reinstate the decision of the Civil Service Merit Board. http://www.tba.org/tba_files/TCA/Grossd.wpd SARAH CARLETON HIGH (NUCKOLLS) VS. JAMES ROSCOE HIGH Court:TCA Attorneys: JEFFREY L. IVEY BRUCE, WEATHERS, CORLEY, DUGHMAN & LYLE Nashville, Tennessee Attorney for Appellant L. L. HARRELL, JR. HARRELL & HARRELL Trenton, Tennessee Attorney for Appellee Judge: HIGHERS First Paragraph: The appellant has taken this appeal from the trial court's order directing garnishment of his wages to satisfy his current and outstanding alimony and child support obligations. For the reasons stated herein, we affirm in part and modify in part the judgment of the trial court and remand the cause to that court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/Highsarahc.wpd SARAH A. HULL VS. RUTH E. JOHNSON, Commissioner of Revenue of the State of Tennessee Court:TCA Attorneys: G. Patrick Arnoult; The Bogatin Law Firm of Memphis For Plaintiff-Appellant Paul G. Summers, Attorney General and Reporter Natalie S. Price, Elizabeth A. Carnahan, Assistant Attorneys General For Defendant-Appellee Judge: CRAWFORD First Paragraph: This appeal involves a dispute over a gift tax assessment. Plaintiff, Sarah A. Hull, appeals the order of the trial court that upheld the assessment, denied her request for a refund, and awarded defendant, Commissioner of Revenue for the State of Tennessee, attorney's fees. http://www.tba.org/tba_files/TCA/HULLSA.wpd L. KATHERINE JARRED, M.D. VS. KITSIE HENDRIX, D.D.S. Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendant/Appellee: David Lumb Gary K. Smith Memphis, Tennessee Marcy L. Dodds Memphis, Tennessee Judge: LILLARD First Paragraph: This is a dental malpractice case. The trial court granted summary judgment to the defendant dentist based on the plaintiff's failure to submit sufficient expert medical testimony to support her claim. The plaintiff then filed a motion to alter or amend the summary judgment order, which was denied on the basis that the information submitted in support of the motion to alter or amend was available prior to the grant of summary judgment. We affirm both the grant of summary judgment and the denial of plaintiff's motion to alter or amend the judgment. http://www.tba.org/tba_files/TCA/JARREDKL.wpd LEZLEY M. JOHNSON VS. KENNETH R. DOWNING Court:TCA Attorneys: John R. Johnson, III of Memphis Carlton Barnes of Memphis For Appellant R. Layne Holley; McNabb, Holley, Waldrop & Bragorgos, PLLC of Memphis for Appellee Judge: CRAWFORD First Paragraph: This is a personal injury case. Plaintiff, Lezley M. Johnson, a Memphis police officer, appeals from the order of the trial court granting defendant, Kenneth R. Downing's motion for summary judgment. http://www.tba.org/tba_files/TCA/JOHNSONL.wpd LILLIE MAE MAYS VS. FRED'S, INC. Court:TCA Attorneys: MELANIE M. STEWART STEWART WILKINSON AND WILSON, PLLC Memphis, Tennessee Attorney for Appellant CAROL M. HAYDEN McDONALD KUHN Memphis, Tennessee Attorney for Appellee Judge: HIGHERS First Paragraph: Lillie Mays appeals from the Shelby County Circuit Court, which granted summary judgment in favor of the Defendant. For the reasons stated herein, we affirm the trial court's decision. http://www.tba.org/tba_files/TCA/MaysLillie.wpd ANDREI M. MIHUT VS. MARIA G. MIHUT Court:TCA Attorneys: JEFFREY JONES Memphis, Tennessee Attorney for Appellant T. TARRY BEASLEY, II Memphis, Tennessee Attorney for Appellee Judge: HIGHERS First Paragraph: Maria G. Mihut ("Mrs. Mihut") has appealed from the trial court's determination regarding child custody during a divorce proceeding between Mrs. Mihut and Andrei M. Mihut ("Mr. Mihut"). Based upon the following, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/Mihutam.wpd FRANK MORIMANNO VS. TOMMY MIDDLETON AND CENTRAL STATE BANK and DON CAMPAGNA AS AGENT FOR CENTRAL STATE BANK Court:TCA Attorneys: David A. Riddick, HOLMES, RICH, SIGLER & RIDDICK, P.C., Jackson, Tennessee Attorney for Defendants/Appellants Central State Bank and Don Campagna. Tom Anderson, Anderson Law Firm, PLLC, Jackson, Tennessee Attorney for Plaintiff/Appellee. Judge: FARMER First Paragraph: Defendants Central State Bank and Don Campagna appeal the trial court's judgment awarding Plaintiff/Appellee Frank Morimanno $14,500 in damages on his claim for negligent misrepresentation. We affirm the trial court's judgment based upon our conclusion that the evidence does not preponderate against the trial court's decision in favor of Morimanno. http://www.tba.org/tba_files/TCA/Morimannof.wpd LISA LYNN NORTON VS. MAX LANE NORTON Court:TCA Attorneys: Kathryn M. Tucker, KIZER, BONDS & HUGHES, Milan, Tennessee Attorney for Plaintiff/Appellant. Joe H. Byrd, Jr., Jackson, Tennessee Attorney for Defendant/Appellee. Judge: FARMER First Paragraph: Plaintiff Lisa Lynn Norton (Mother) appeals the trial court's judgment increasing the child support obligation of Defendant/Appellee Max Lane Norton (Father) from $400 per month to $1200 per month, ordering the Father to contribute $300 per month to an educational trust fund for the parties' minor child, and ordering the Father to pay $2000 of the Mother's attorney's fees. In considering the Mother's petition to modify child support, the trial court found that the Father's financial condition had changed very little since 1988 when the parties entered into a Marital Dissolution Agreement. Nevertheless, based largely upon the Father's agreement to pay more child support, the trial court increased the Father's monthly child support obligation to $1200. We vacate the trial court's judgment based upon our conclusion that the court used the wrong test for determining whether the Mother was entitled to the relief sought in her modification petition. http://www.tba.org/tba_files/TCA/Nortonlisal.wpd ROBERT CLARENCE PAYNE VS. LESLIE SHUMAKE, ALAN BARGERY, WARDEN, and CORRECTIONS CORPORATION OF AMERICA Court:TCA Attorneys: ROBERT C. PAYNE, pro se Henning, Tennessee CLAIRE M. CISSELL CHARLES C. HARRELL BAKER, DONELSON, BEARMAN & CALDWELL Memphis, Tennessee Attorney for Appellee, Leslie Shumake TOM ANDERSON ANDERSON LAW FIRM, P.L.L.C. Jackson, Tennessee Attorney for Appellees, Alan Bargery and Corrections Corporation of America Judge: HIGHERS First Paragraph: Robert Clarence Payne appeals from the Circuit Court of Hardeman County, which dismissed his pro se complaint against the defendants Leslie Shumake, Alan Bargery, and Corrections Corporation of America. http://www.tba.org/tba_files/TCA/PAYNER~1.wpd SAM POSEY, DANNY TODD, BILLY CHITWOOD and JIMMY PORTER, VS. CITY OF MEMPHIS, TENNESSEE, DIVISION OF FIRE SERVICES OF MEMPHIS, TENNESSEE, DR. W. W. HERENTON, Mayor, WESTELLE FLOREZ, Director of the Division of Personnel, and CHARLES SMITH, Director of the Division of Fire Services Court:TCA Attorneys: Mark Allen; Barclay M. Roberts; Allen Godwin; of Morris, Laurenzi & Bloomfield, P.C., of Memphis For Appellees Charles V. Holmes; Louis P. Britt, III of Ford & Harrison LLP of Memphis For Appellants Judge: CRAWFORD First Paragraph: This is a class action declaratory judgment suit filed by plaintiffs against the City of Memphis and the various-named individual defendants in their official capacities only. The complaint seeks declaratory and injunctive relief concerning the City's method of calculating pensions of city firefighters with thirty or more years of service who are eligible for automatic promotion to the rank of captain pursuant to Memphis City Charter Sec. 67. The complaint alleges, inter alia, that the City violated Sec. 25.1 (4)(a) 3 of the Code of Ordinances of the City of Memphis by calculating the pensions of the firefighters upon the salary of the former rank of captain as opposed to the current rank of battalion commander. Plaintiffs aver that the rank of battalion commander became a comparable rank to captain within the meaning of Sec. 25-1 (4)(a) 3 after the rank of captain was eliminated from the command structure by reorganization of the department. http://www.tba.org/tba_files/TCA/POSEYS.wpd WILILE SANDIFER VS. CIVIL SERVICE MERIT BOARD and THE SHELBY COUNTY CORRECTIONAL CENTER Court:TCA Attorneys: For the Petitioner/Appellee: For the Respondents/Appellants: Florence M. Johnson Donnie E. Wilson Memphis, Tennessee Renee Allen-Walker Memphis, Tennessee Judge: LILLARD First Paragraph: This is an employee termination case. An employee of a correctional facility was terminated after confrontations with his supervisor. The employee appealed the termination to the county civil service board. The county board affirmed the decision to terminate the employee. The employee appealed this decision to chancery court, which reversed the board's decision and instead issued a ninety-day suspension without pay from the date of termination. The county appealed the decision of the chancery court. We find that there was material evidence to support the county board's decision to uphold the termination, and that the board's decision was not arbitrary or capricious. Consequently, we reverse the chancery court's decision. http://www.tba.org/tba_files/TCA/SANDIFEW.wpd WILLIAM KENNETH SIMS and wife EDNA W. SIMS, VS. EDDIE STEWART, JR. and TENNESSEE FARMERS MUTUAL INSURANCE COMPANY Court:TCA Attorneys: T. J. Emison, Jr., of Alamo For Plaintiffs-Appellees Wesley A. Clayton, Greg A. Petrinjak; Waldrop & Hall, P.A., of Jackson For Appellant, Tennessee Farmers Mutual Insurance Company Judge: CRAWFORD First Paragraph: This case, which is before us a second time, involves a dispute concerning the amount due under an uninsured/underinsured motorist insurance policy. Defendant/Appellant, Tennessee Farmers Mutual Insurance Company, appeals the order of the trial court awarding $198,046.43 in damages to the Plaintiff/Appellee, Kenneth Sims, and directing defendant to pay plaintiff the sum of $61,862.57($100,000 policy limit minus $38,137.43 previously paid in partial satisfaction of judgment.) http://www.tba.org/tba_files/TCA/SIMSW.wpd BRENDA J. SNEED VS. THOMAS G. STOVALL, M.D., GUY VOELLER, M.D., and UNIVERSITY PHYSICIANS FOUNDATION, d/b/a UNIVERSITY OF TENNESSEE MEDICAL GROUP, INC. Court:TCA Attorneys: Robert L. Green;Neely, Green, Fargarson, Brooke & Summers, of Memphis Bruce Kelley, Jr., of Memphis Steven R. Walker of Memphis For Appellant William H. Haltom, Jr.; Thomason, Hendrix, Harvey, Johnson & Mitchell of Memphis For Appellees Judge: CRAWFORD First Paragraph: This case is before the Court pursuant to T.R.A.P. 9. Plaintiff/Appellant, Brenda Sneed, appeals from the order of the trial court that denied her motion in limine concerning inquiry about disciplinary proceedings against plaintiff's medical expert witness. http://www.tba.org/tba_files/TCA/SNEEDBR.wpd JOSEPH EDMUND STEPHENSON and NORMA NUNN STEPHENSON VS. KEITH ALAN WEST Court:TCA Attorneys: David E. Caywood, Memphis, Tennessee Stacy A. Ingle, Memphis, Tennessee Attorneys for Defendant/Appellant John R. Branson, James M. Allen, BRANSON & BEARMAN, PLLC, Memphis, Tennessee Attorneys for Plaintiffs/Appellees Judge: FARMER First Paragraph: This is a dispute involving two minor children, Kathleen and Scott West. Defendant Keith West is the father of Kathleen and Scott while Plaintiffs Joseph and Norma Stephenson are the children's maternal grandmother and step-grandfather. Mr. West appeals an order of the trial court granting the Stephensons' request for custody of Kathleen and visitation with Scott and awarding the Stephensons child support and attorney's fees. For the reasons set forth below, we affirm in part, reverse in part, modify and remand. http://www.tba.org/tba_files/TCA/stephensonj.wpd ROBERT EDWARD STEWART VS. LYNDA ELAINE STEWART Court:TCA Attorneys: BOB C. HOOPER Jackson, Tennessee Attorney for Appellant NANCY S. NELSON Jackson, Tennessee Attorney for Appellee Judge: HIGHERS First Paragraph: Lynda Elaine Stewart appeals from the dismissal of her petition seeking a contempt citation against Robert Edward Stewart. For the reasons stated herein, we reverse the trial court dismissal and remand the case to the Chancery Court of Madison County. http://www.tba.org/tba_files/TCA/stewartre.wpd TENNESSEE BANK & TRUST VS. PARAGON PAINT & EQUIPMENT Court:TCA Attorneys: JOHN S. GOLWEN HALE HEADRICK DEWEY & WOLF, PLLC Memphis, Tennessee Attorney for Appellant HENRY C. SHELTON, III KRIVCHER MAGIDS PLC Memphis, Tennessee Attorney for Appellee Judge: HIGHERS First Paragraph: Paragon Paint & Equipment ("Paragon") has appealed from the trial court's refusal to grant a new trial or set aside the judgment in favor of Tennessee Bank & Trust ("Bank") in this breach of contract case. Based upon the following, we reverse the trial court's decision. http://www.tba.org/tba_files/TCA/TNBank&Trust.wpd STATE OF TENNESSEE VS. JIMMY RAY CURETON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: KENNETH F. IRVINE, JR. PAUL G. SUMMERS Eldridge, Irvine & Hendricks, PLLC Attorney General & Reporter 606 West Main Street, Suite 350 P. O. Box 84 ERIK W. DAAB Knoxville, TN 37901-0084 Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 RANDALL E. NICHOLS District Attorney General FRED BRIGHT, JR. Assistant District Attorney General SALLY JO HELM Assistant District Attorney General 400 Main Street P. O. Box 1468 Knoxville, TN 37901-1468 Judge: GLENN First Paragraph: The defendant, Jimmy Ray Cureton, appeals as of right following his conviction by a jury in the Knox County Criminal Court of one count of felony murder and one count of attempted especially aggravated robbery. Upon the defendant's motion, which was opposed by the State, the trial court reduced the attempted especially aggravated robbery conviction to attempted aggravated robbery. The trial court sentenced the defendant to life with the possibility of parole for the felony murder conviction and to five years for the attempted aggravated robbery conviction, ordering that these sentences be served consecutively. http://www.tba.org/tba_files/TCCA/Curetonjr.wpd ROGER CLAYTON DAVIS VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Julie A. Rice Paul G. Summers P. O. Box 426 Attorney General & Reporter Knoxville, TN 37901-0426 (On Appeal) Ellen H. Pollack Assistant Attorney General Thomas E. Kimball 425 Fifth Avenue North Assistant Public Defender Nashville, TN 37243-0493 110_ East Washington Avenue Athens, TN 37303 Jerry N. Estes District Attorney General William W. Reedy Assistant District Attorney General 130 Washington Avenue, N.E. P. O. Box 647 Athens, TN 37371-0647 District Attorney General Judge: GLENN First Paragraph: The petitioner, Roger Clayton Davis, appeals as of right from the McMinn County Criminal Court's dismissal of his petition for post-conviction relief wherein he claimed ineffective assistance of counsel in his 1988 trial, which resulted in his convictions of five counts of rape and one count of aggravated kidnapping. Based upon our review, we affirm the trial court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/davisrc.wpd STATE OF TENNESSEE VS. TAMELA GRACE McGHEE, alias Court:TCCA Attorneys: For the Appellant: For the Appellee: Ardena J. Garth Paul G. Summers District Public Defender Attorney General of Tennessee and and Donna Robinson Miller Erik W. Daab Assistant Public Defender Assistant Attorney General of Tennessee 701 Cherry Street, Suite 300 425 Fifth Avenue North Chattanooga, TN 37402 Nashville, TN 37243 William H. Cox, III District Attorney General and Charles Leland Davis and Caldwell H. Huckabay Assistant District Attorneys General 600 Market Street, Suite 310 Chattanooga, TN 37402 Judge: TIPTON First Paragraph: The defendant, Tamela Grace McGhee, alias, appeals as of right from her conviction for voluntary manslaughter, a Class C felony, following a bench trial in the Hamilton County Criminal Court. She was sentenced as a Range I, standard offender to four years incarceration in the custody of the Department of Correction. She contends that (1) the evidence is insufficient to support her conviction, and (2) the trial court erred in sentencing her to confinement. We affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/McGheetG.wpd BRETT RAE VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Melinda Meador Paul G. Summers Bass, Berry & Sims PLC Attorney General and Reporter 900 S. Gay Street, Suite 1700 Knoxville, TN 37902 Ellen H. Pollack Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 Alfred C. Schmutzer, Jr. District Attorney General Charles Atchley, Jr. Asst. District Attorney General Sevierville, TN 37862 Judge: HAYES First Paragraph: The appellant, Brett Rae, appeals the trial court's denial of his petition for post-conviction relief. In November 1994, the appellant and a co-defendant were charged with premeditated first degree murder. Following a jury trial in the Criminal Court of Sevier County, the appellant was found guilty of the indicted offense. Immediately prior to the jury fixing his punishment, the appellant, pursuant to a negotiated agreement, pled guilty to first degree murder in exchange for a sentence of life with the possibility of parole. The appellant, proceeding pro se, subsequently filed a petition for post-conviction relief, alleging, inter alia, ineffective assistance of trial counsel. The petition was amended following appointment of counsel. The trial court denied the relief sought and this appeal follows. After review of the record, we affirm. http://www.tba.org/tba_files/TCCA/RaeB.wpd STATE OF TENNESSEE VS. HAROLD TOLLEY Court:TCCA Attorneys: For Appellant: For Appellee: James T. Bowman Paul G. Summers 128 East Market Street Attorney General & Reporter Johnson City, TN 37604 Marvin S. Blair, Jr. Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Joe C. Crumley, Jr. District Attorney General 144 Alf Taylor Road Johnson City, TN 37601 Kent W. Garland Assistant District Attorney General Unicoi County Courthouse Erwin, TN 37650 Judge: GLENN First Paragraph: The defendant, Harold Tolley, was convicted in Unicoi County of first degree murder in the March 1, 1997, shooting death of Lattie Franklin and was sentenced to life in prison. The defendant timely appealed, asserting the evidence presented was insufficient to support the jury's verdict and that the trial court erroneously ruled on an evidentiary question concerning a prior bad act of the defendant. Based upon our review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/tolleyh.wpd PLEASE FORWARD THIS EMAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! See the intrsuctions at the beginning of this edition of Opinion Flash. JOIN TBALink! 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