Opinion Flash

April 10, 2003
Volume 9 — Number 064

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):
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
03 New Opinion(s) from the Tennessee Court of Appeals
06 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


HERBERT ARTHUR HEINZE v. PATRICIA CHRISTINE SEVERT (HEINZE)

Court:TCA

Attorneys: 

J. Ronnie Greer, Greeneville, Tennessee, for the Appellant, Herbert
Arthur Heinze

David L. Leonard, Greeneville, Tennessee, for the Appellee, Patricia
Christine Severt (Heinze)                          

Judge: GODDARD

First Paragraph:

In this appeal from the Chancery Court for Greene County the
Appellant, Herbert Arthur Heinze, contends that the Trial Court erred
in finding that a valid accord and satisfaction was entered into
between him and the Appellee, Patricia Christine Severt (Heinze), with
respect to the distribution of proceeds realized from the sale of the
parties' marital residence pursuant to a divorce judgment. We affirm
the judgment of the Trial Court and remand for collection of costs and
enforcement of the judgment.

http://www.tba.org/tba_files/TCA/heinzet.wpd
								
EVAN J. ROBERTS v. MILLER INDUSTRIES, INC., et al. Court:TCA Attorneys: William Alexander Blue, Jr., Nashville, Tennessee, for the Appellants, Miller Industries, Inc. and Road One, Inc. John Tate Rice, Chattanooga, Tennessee, for the Appellee, Evan J. Roberts Judge: GODDARD First Paragraph: In this appeal from the Chancery Court for Hamilton County the Appellants/Defendants, Miller Industries, Inc. and Road One, Inc., contend that the Trial Court erred in awarding the Appellee/ Plaintiff, Evan J. Roberts, damages for breach of contract. The judgment of the Trial Court is affirmed in part and reversed and vacated in part, and the cause is remanded for collection of costs below. http://www.tba.org/tba_files/TCA/robertse.wpd
ANNE STRICKLAND v. DANIEL R. CARTWRIGHT, et al. Court:TCA Attorneys: L. Lee Kull and Irma G. Freestate, Maryville, Tennessee, for the Appellants Daniel R. Cartwright and Lorraine S. Cartwright. Brian T. Mansfield, Sevierville, Tennessee, for the Appellee Anne Strickland. Judge: SWINEY First Paragraph: Anne Strickland ("Plaintiff") approached Daniel Cartwright ("Defendant") about the possible purchase of Defendant's restaurant. Unable to come up with the full purchase price of $1.5 million, Plaintiff made an initial payment of $170,000 and began leasing the restaurant with monthly rental payments of $7,000. No written agreement ever was finalized between the parties. Plaintiff vacated the premises after six months allegedly due to the poor condition of the building and the amount of repairs that were needed. Plaintiff filed suit seeking a return of the $170,000, claiming this money was intended by the parties to be a down payment on the purchase of the restaurant, an event which never occurred. Defendant claimed the parties had agreed to a nonrefundable initial payment of $250,000 to allow Plaintiff the privilege of being able to walk in and take over a fully staffed and operational restaurant. Since Plaintiff paid only $170,000 toward the initial $250,000 payment, Defendant filed a counterclaim for the remaining $80,000. After a trial, the Trial Court awarded Plaintiff a judgment in the amount of $138,000. Both parties appeal. We affirm. http://www.tba.org/tba_files/TCA/strickland.wpd
STATE OF TENNESSEE v. GDONGALAY P. BERRY Court:TCCA Attorneys: Thomas F. Bloom and James A. Simmons, Nashville, Tennessee, for the Appellant, Gdongalay P. Berry. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Dana M. Ausbrooks, Assistant Attorney General; Katrin Miller and David Hamm, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Gdongalay P. Berry, was found guilty by a jury of two counts of first degree murder, two counts of especially aggravated robbery, and two counts of especially aggravated kidnapping. Berry's convictions stem from the execution-style murder of two individuals involved in the illicit sale of weapons. The jury returned a sentence of death for each of the homicides based upon its finding of three aggravating factors; i.e., prior violent felonies, murder committed for the purpose of avoiding prosecution, and murder committed during commission of a robbery or kidnapping. Tenn. Code Ann. S 39-13-204(i)(2), (6), (7) (Supp. 2002). The Davidson County Criminal Court subsequently imposed concurrent twenty-five-year sentences for the especially aggravated robbery convictions and concurrent twenty-five-year sentences for the especially aggravated kidnapping convictions. The robbery and kidnapping sentences were ordered to run consecutive to one another and consecutive to the sentences of death, resulting in an effective sentence of death plus fifty years. Berry appeals, presenting the following issues for our review: I. Whether Tennessee's death penalty procedures are constitutional; II. Whether he was denied his right to a speedy trial; III. Whether the trial court erred by denying his request for hybrid representation, and whether the trial court erred in allowing him to represent himself at the suppression hearing; IV. Whether the trial court erred in failing to suppress his statement; V. Whether, during the jury selection process, the trial court abused its discretion regarding rehabilitation issues; VI. Whether the trial court erred in admitting evidence of gang affiliation; VII. Whether the trial court erred by permitting testimony of a hearsay statement made by the co-defendant which inculpated Berry; VIII. Whether the prosecutor made an inappropriate religious comment during closing argument; IX. Whether the trial court properly instructed the jury as to flight; X. Whether the evidence was sufficient to support his convictions; and XI. Whether, during the penalty phase of the trial, the trial court erred by allowing a victim's mother to testify that her son pled for his life prior to being shot. After review, we find no error of law requiring reversal. Accordingly, we affirm Berry's convictions and the imposition of the sentences of death in this case. http://www.tba.org/tba_files/TCCA/berry.wpd
TONY ALLEN LEONARD v. STATE OF TENNESSEE Court:TCCA Attorneys: A.D. Jones, Jr., Bristol, Tennessee, for the Appellant, Tony Allen Leonard. Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General; H. Greeley Welles, Jr., District Attorney General; and James G. Goodwin, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Following an evidentiary hearing, the Sullivan County Criminal Court denied the petitioner, Tony Allen Leonard, post-conviction relief. On appeal, the petitioner claims that the post-conviction court erred in failing to find that his trial counsel rendered ineffective assistance. Because the record supports the lower court's findings and holding, we affirm. http://www.tba.org/tba_files/TCCA/leonard.wpd
STATE OF TENNESSEE v. TOBY P. LEONARD Court:TCCA Attorneys: Hershell D. Koger, Pulaski, Tennessee, for the appellant, Toby P. Leonard. Paul G. Summers, Attorney General & Reporter; Braden H. Boucek, Assistant Attorney General; Mike Bottoms, District Attorney General; and Patrick Butler, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Toby P. Leonard, entered pleas of guilt to aggravated assault and civil rights intimidation. As a part of the plea agreement, the defendant received Range I, consecutive sentences of six and two years, respectively, for an effective sentence of eight years. The trial court denied probation. In this appeal of right, the defendant argues that he should have been granted an alternative sentence. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/leonard2.wpd
AUSTIN EUGENE LINEBACK v. STATE OF TENNESSEE Court:TCCA Attorneys: Gary F. Antrican, Somerville, Tennessee, for the Appellant, Austin Eugene Lineback. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Walt Freeland, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Through a 2001 Tipton County Circuit Court post-conviction petition, Austin Eugene Lineback challenges his 2001 convictions in that court of statutory rape and especially aggravated sexual exploitation of a minor. The convictions resulted from his guilty pleas, which the petitioner now alleges are involuntary and unknowing due to ineffective assistance of counsel. Following an evidentiary hearing, the lower court denied post-conviction relief, and the petitioner now appeals. Upon our review of the record, the parties' briefs, and the applicable law, we affirm. http://www.tba.org/tba_files/TCCA/linebac.wpd
STATE OF TENNESSEE v. GABOR PALASTI Court:TCCA Attorneys: William L. Brown and Travis R. McDonough, Chattanooga, Tennessee, for appellant, Gabor Palasti. Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General; Bill Cox, District Attorney General; and Thomas E. Kimball, Assistant District Attorney General for appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant, Gabor Palasti, was convicted upon his pleas of guilty to the charges of vehicular assault and three counts of reckless endangerment. He originally received a four year effective sentence with 11 months, 29 days of incarceration followed by probation. This was ultimately altered by the trial judge to require that the defendant serve six (6) months in confinement with thirty days of continuous confinement followed by five months of work release and then supervised probation. In this appeal the defendant contends he should have received full probation for these offenses and he cites numerous alleged deficiencies in the trial court's sentencing procedures. We find that in sentencing the defendant the trial court failed to make appropriate findings on the record and that therefore our review of the defendant's sentence is de novo without a presumption of correctness. Nevertheless, we find that the record contains sufficient evidence from which this Court concludes that six (6) months confinement of the defendant is appropriate. However, we believe the entire confinement should be served on work release. We therefore AFFIRM the decision of the trial court with the modification that the entire period of incarceration be served on work release. http://www.tba.org/tba_files/TCCA/palastig.wpd
STATE OF TENNESSEE v. ERIC ALONZO SMITH Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee (on appeal), and Roger Nell, District Public Defender (at trial), for the appellant, Eric Alonzo Smith. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; and Helen Young, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WADE First Paragraph: The defendant, Eric Alonzo Smith, was convicted of driving on a revoked license, aggravated robbery, and evading arrest. The trial court imposed concurrent sentences of 6 months, 8.5 years, and 11 months, 29 days, respectively. In this appeal of right, the defendant asserts that the evidence is insufficient to support the conviction for aggravated robbery. The judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/smithea.wpd

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