Opinion FlashOctober 17, 2002Volume 8 — Number 183 Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion. This Issue (IN THIS ORDER):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel JOHN CARBINO v. PORTLAND UTILITY CONST. CO., LLC, et al. Court:TSC - Workers Comp Panel Attorneys: Bridgett A. Wohlpart, Brentwood, Tennessee, for the appellants, Portland Utility Construction Company, LLC, and Travelers Property Casualty Corporation Lucius P. Hawes, Jr., Hopkinsville, Kentucky, for the appellee, John Carbino Judge: LOSER 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. In this appeal, the employer and its insurer question (1) the trial court's finding that the employee's aortic dissection was an injury by accident arising out of his employment and (2) the award of permanent partial disability benefits based on 85 percent to the body as a whole for the combined effects of that injury and a subsequent compensable back injury. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/carbinojohn.wpd ARLIE L. BINGHAM v. JOHN W. DOLES, et al. Court:TCA Attorneys: J. Gilbert Parrish, Jr., Savannah, TN, for Appellant Dennis W. Plunk, Savannah, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a boundary line dispute. The plaintiff filed suit against the defendant, an adjacent land owner, alleging that a proposed addition to the defendant's home would encroach onto the plaintiff's property. The trial court ruled that defendant had gained title to the disputed property under the doctrines of adverse possession and title by acquiescence. The plaintiff appealed challenging the court's ruling on adverse possession. For the following reasons, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/binghama.wpd RODNEY M. BUTLER v. MADISON COUNTY JAIL, et al. Court:TCA Attorneys: Rodney M. Butler, Pro Se James I. Pentecost, Andrew V. Sellers, Jackson, For Appellees, Madison county Jail and Sheriff David Woolfork Timothy G. Wehner, L. Michelle Greenway, Jackson, For Appellee, Kelly Ballard, M.D. Judge: CRAWFORD First Paragraph: Inmate sued sheriff, county, and physician, claiming deprivation of constitutional rights under 42 U.S.C. S 1983 in connection with allegedly delayed and substandard medical treatment. The Circuit Court of Madison County granted summary judgment for sheriff, county, and physician, and denied inmate's request to amend complaint and for extension of time to conduct discovery. Inmate appeals. We affirm. http://www.tba.org/tba_files/TCA/butlerra.wpd COX OIL COMPANY, INC. v. CITY OF LEXINGTON BEER BOARD Court:TCA Attorneys: Kenneth L. Walker, Lexington, Tennessee, for the appellant, City of Lexington Beer Board. Stephen M. Milam, Lexington, Tennessee, for the appellee, Cox Oil Company, Inc. Judge: LILLARD First Paragraph: This is an action challenging the denial of a beer permit. The plaintiff business applied for a beer permit with the defendant beer board. The board denied the permit because plaintiff's location was within 500 feet of a church. This proximity to a church was in violation of a city ordinance. The plaintiff filed a writ of certiorari in the trial court, seeking a reversal of the board's decision because the 500-feet ordinance had been applied in a discriminatory manner. The trial court found that the board had allowed another establishment that was within 500 feet of a church to maintain its beer permit, and concluded that the board had therefore applied the ordinance in a discriminatory manner. Consequently, the denial of the plaintiff's beer permit was reversed. The board now appeals that order. We affirm, finding that the board had applied the ordinance in a discriminatory manner, and that the trial court did not err in reversing the denial of the plaintiff's beer permit. http://www.tba.org/tba_files/TCA/coxoil.wpd LEO CLIFFORD DAVIS, JR. v. ANGELA DAVIS Court:TCA Attorneys: James F. Butler, J. Brandon McWherter, Jackson, TN, for Appellant Linda Sesson Taylor, Jackson TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a divorce proceeding initiated by the husband. The trial court, holding that husband had engaged in inappropriate marital conduct, granted the divorce to the wife. The trial court valued and classified much of the parties' property with limited proof. The court further awarded wife attorney's fees and costs. Husband now raises several issues for our review. For the foregoing reasons, we affirm in part, reverse in part, and remand this case for further proceedings. http://www.tba.org/tba_files/TCA/davisl.wpd RON MCCOLGAN d/b/a BIG SANDY AUTO PARTS v. AUTO-OWNERS INSURANCE COMPANY Court:TCA Attorneys: Dwayne D. Maddox III, Huntingdon, For Appellant, Auto Owners Insurance Company Terry J. Leonard, Camden, For Appellee, Ron McColgan, d/b/a Big Sandy Auto Parts Judge: CRAWFORD First Paragraph: Appellee-insured filed a complaint against appellant-insurance company for breach of contract and bad faith penalties when appellant refused to pay coverage owed under an existing policy for fire damages appellee suffered to his place of business and business personal property. Appellant raised an affirmative defense of arson. Chancery court awarded appellee policy proceeds equal to the coverage limits provided in his policy and a twenty-five percent bad faith penalty pursuant to T.C.A. S 56-7-105. Appellant appeals solely on the issue of the bad faith penalty. We reverse in part, affirm in part and remand. http://www.tba.org/tba_files/TCA/mccolgan.wpd MARGARET PARKER v. THE KROGER COMPANY Court:TCA Attorneys: Marshall L. Gerber, Memphis, For Appellant, Margaret Parker Minton P. Mayer, Memphis, For Appellee, The Kroger Company Judge: CRAWFORD First Paragraph: The Circuit Court, Shelby County, granted summary judgment for Defendant in a slip and fall case. The Court of Appeals reversed and remanded the case. The Supreme Court granted appeal and remanded the case by Order dated September 23, 2002 to the Court of Appeals for the sole purpose of determining the applicability, if any, of the Texas Supreme Court opinion in Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812 (Tex. 2002). On remand, the Court of Appeals withdrew the Court's previously filed opinion and affirms the Trial Court's grant of summary judgment. http://www.tba.org/tba_files/TCA/parkermt.wpd STATE OF TENNESSEE v. RICKY BRANDON and JIMMY W. BRANDON Court:TCCA Attorneys: Robert L. Huskey, Manchester, Tennessee, for the Appellants, Ricky Brandon and Jimmy Brandon. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kim R. Helper, Assistant Attorney General; C. Michael Layne, District Attorney General; and Doug Aaron, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellants, Ricky Brandon and Jimmy W. Brandon, were convicted by a Coffee County jury of misdemeanor assault. In this direct appeal of their convictions, the Appellants argue that they received ineffective assistance of counsel at trial and, as such, their convictions should be vacated. After review, we find no error and affirm the judgment. http://www.tba.org/tba_files/TCCA/brandonjr.wpd STATE OF TENNESSEE v. WILLIAM ROY GRAY Court:TCCA Attorneys: Vanessa D. King, Assistant Public Defender, Jackson, Tennessee, for the appellant, William Roy Gray. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; Jerry Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: Following a bench trial, the Defendant, William Roy Gray, was found guilty of possession of drug paraphernalia, a class A misdemeanor, and resisting arrest, a class B misdemeanor. He received consecutive sentences of eleven months and twenty-nine days and six months, respectively, to be served in jail. However, approximately two months later, the trial court entered an order allowing the Defendant to serve his sentences at home due to the Defendant's poor health. The court revoked this order based on the Defendant failing to comply with the conditions of his release from jail and the Defendant being arrested for theft. Moreover, the court ordered that the Defendant not be given credit for the portion of his sentences that he served at his home. In this appeal as of right, the Defendant argues that the order of the trial court denying him credit for the time he served outside of jail serves to increase his sentence and to effectively punish him twice for the same offense in violation of the double jeopardy clauses of the United States and Tennessee Constitutions. We disagree and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/graywr.wpd MELVIN JOHNSON v. STATE OF TENNESSEE Court:TCCA Attorneys: James E. Thomas, Memphis, Tennessee, for the appellant, Melvin Johnson. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; William L. Gibbons, District Attorney General; and Raymond J. Lepone, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The Shelby County Criminal Court dismissed the petition for post-conviction relief filed by the petitioner, Melvin Johnson, as untimely under the one-year statute of limitations. In this appeal, the sole issue before this court is whether the petitioner's allegation that he was housed in a therapeutic community with limited access to legal information tolls the statute of limitations. Upon review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/johnsonm1.wpd STATE OF TENNESSEE v. GREGORY KEY Court:TCCA Attorneys: Darrell L. Scarlett, Murfreesboro, Tennessee, for the appellant, Gregory Key. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and John W. Price, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Gregory Key, was indicted by the Rutherford County Grand Jury on two counts of aggravated sexual battery. During a hearing on several pretrial motions, defense counsel, Darrell Scarlett, advised the trial court of a joint business venture between himself and Detective Lawson, an investigating officer in the case. The court entered an Order disqualifying Defendant's attorney from further representation, finding that the relationship constituted an appearance of impropriety. Pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, Defendant appeals the trial court's disqualification of his attorney and argues that he waived any conflict or appearance of impropriety after full disclosure. http://www.tba.org/tba_files/TCCA/keygregory.wpd WILLIE JOSEPH LAGANO v. STATE OF TENNESSEE Court:TCCA Attorneys: Bruce Poag, Nashville, Tennessee, for the appellant, Willie Joseph Lagano. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pam Anderson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Willie Joseph Lagano, filed a petition for writ of habeas corpus in the trial court. The trial court summarily dismissed the petition without an evidentiary hearing. Petitioner appealed. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/laganowilliejoseph.wpd STATE OF TENNESSEE v. WILLIAM A. MARSHALL Court:TCCA Attorneys: Walter H. Stubbs, Gallatin, Tennessee, for the Appellant, William A. Marshall. Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Sallie Wade Brown, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, William A. Marshall, appeals the Sumner County Criminal Court's revocation of his probation of a two-year sentence for sexual battery. Because we disagree with the trial court's view of whether the defendant satisfied a condition of his probation by "completing" a sexual offender treatment program, we reverse the revocation and dismiss the warrant. http://www.tba.org/tba_files/TCCA/marshallwilliama.wpd STATE OF TENNESSEE v. NELSON EDWARD MEEKS Court:TCCA Attorneys: Philip A. Condra, Jasper, Tennessee, for the Appellant, Nelson Edward Meeks. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; James Michael Taylor, District Attorney General; and Sherry Gouger, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Nelson Edward Meeks appeals the sentence imposed for three convictions for third offense driving under the influence, reckless driving, and driving on a revoked license. He claims that the lower court erred in (1) failing to consider the statutory sentencing principles and considerations, and (2) imposing a sentence not authorized by law. Because we disagree in both respects, we affirm. http://www.tba.org/tba_files/TCCA/meeksnelsone.wpd ANTONIO M. MILLER v. STATE OF TENNESSEE Court:TCCA Attorneys: John D. Drake, Murfreesboro, Tennessee, for the Appellant, Antonio M. Miller. Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Paul A. Holcombe, III, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Antonio M. Miller appeals from the Rutherford County Circuit Court's denial of his petition for post-conviction relief. Miller is presently serving an effective nineteen-year sentence for convictions of second-degree murder, six counts of aggravated burglary, and one count of felony drug possession. He claims that two of his trial counsel provided ineffective assistance. The lower court ruled against the petitioner, and upon review of the record, we affirm that ruling. http://www.tba.org/tba_files/TCCA/millerantoniom.wpd STATE OF TENNESSEE v. RICHARD ODOM, a/k/a OTIS SMITH Court:TCCA Attorneys: Robert C. Brooks (at trial and on appeal) and Edward Chandler (at trial), Memphis, Tennessee, for the appellant, Richard Odom. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Phillip Gerald Harris and Amy Weirich, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Richard Odom, was convicted in 1996 for first degree murder and sentenced to death. Our supreme court affirmed the conviction but remanded for a resentencing hearing, which resulted in a jury's again sentencing the defendant to death, after finding, as an aggravating circumstance, that the defendant previously had been convicted of one or more violent felonies. He appealed that sentence, alleging, inter alia, that the indictment failed to charge a capital offense; and that the trial court erred in denying his motion for a continuance; denying his motion to apply the version of Tenn. Code Ann. S 39-13-204 in effect at the time of his offense; allowing as exhibits photographs of the victims of the crimes; and denying his motion to allow the jury to impose a sentence of life without parole. Following our review, we affirm the imposition of death. http://www.tba.org/tba_files/TCCA/odomr.wpd STATE OF TENNESSEE v. ANDRE DEALTO PERKINS Court:TCCA Attorneys: Guy T. Wilkinson, District Public Defender; W. Jeffery Fagan, Assistant District Public Defender (on appeal); and Victoria DiBonaventura, Paris, Tennessee (at trial), for the appellant, Andre Dealto Perkins. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; G. Robert "Gus" Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals his jury conviction for possession of a controlled substance with the intent to manufacture, deliver, or sell. He argues the evidence is insufficient to support his conviction. We find this issue is waived because the defendant has failed to include a trial transcript in the record. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/perkinsa.wpd STATE OF TENNESSEE v. JERRY WAYMON TRAVIS, aka JERRY WAYMON RAY Court:TCCA Attorneys: Guy T. Wilkinson, District Public Defender, and W. Jeffery Fagan, Assistant Public Defender, for the appellant, Jerry Waymon Travis. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant claims it was error for the trial court to sentence him to the Department of Correction for three years, then order one-year split confinement with the balance on Community Corrections. The defendant contends that a one-year split confinement sentence will require him to serve 1.2 months longer in confinement than a three-year sentence at 30% to the Department of Correction. We conclude the sentence imposed did not violate the principles of sentencing and, accordingly, affirm the judgment from the trial court as modified. http://www.tba.org/tba_files/TCCA/travisj.wpd STATE OF TENNESSEE v. MARQUEZ WINTERS Court:TCCA Attorneys: Garland Erguden, Assistant Public Defender, Memphis, Tennessee (on appeal); Timothy J. Albers and William Yonkowski, Assistant Public Defenders, Memphis, Tennessee (at trial), for the appellant, Marquez Winters. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; and Reginald Henderson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Shelby County Grand Jury indicted the Defendant for two counts of especially aggravated kidnapping and for one count of criminal attempt to commit first degree murder. The Defendant was subsequently convicted of one count of aggravated kidnapping and of one count of criminal attempt to commit first degree murder. The trial court sentenced the Defendant to consecutive maximum sentences totaling thirty-seven years. The Defendant now appeals his sentences, arguing that the trial court erred in its application of enhancement factors, that the trial court improperly imposed maximum sentences for both convictions, and that the trial court erred in ordering the sentences to be served consecutively. Although the trial court erred in its application of certain enhancement factors, we conclude that it properly considered other enhancement factors which warranted sentencing the Defendant to consecutive maximum terms. Therefore, we affirm the sentences imposed by the trial court. http://www.tba.org/tba_files/TCCA/wintersm.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
|
© Copyright 2002 Tennessee Bar Association
|