Opinion FlashJuly 16, 2003Volume 9 — Number 126 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 RUSSELL GREGORY, III v. MARY FISHER GREGORY Court:TCA Attorneys: William M. Monroe, Memphis, TN, for Appellant Alicia A. Howard, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a divorce and custody proceeding. The trial court found it to be in the best interest of the child that the father be granted primary custody of the parties' minor daughter. The primary issue on appeal is whether the trial court erred in applying the best interest analysis. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/gregoryrussell.wpd JERRY LEE HARBIN v. CHRIS MARIE HARBIN Court:TCA Attorneys: Chris Marie Harbin, Appellant, Pro Se Barbara S. Arthur, Rossville, Georgia, for the Appellee, Jerry Lee Harbin Judge: GODDARD First Paragraph: Chris Marie Harbin appeals a judgment entered by the Circuit Court for Hamilton County which decreed that the parties were divorced, awarded custody of their three minor children to their father, Jerry Lee Harbin, affirmed a visitation plan proposed by Mr. Harbin, which she signed, and ordered Mr. Harbin to pay token alimony ($1.00 per month) to her. She appeals the judgment of the Court. We affirm. http://www.tba.org/tba_files/TCA/harbinjerry.wpd LILLIAN ANNETTE MUMFORD v. JOE LESLIE MUMFORD
Court:TCA
Attorneys:
Douglas J. Toppenberg, Knoxville, Tennessee, for the Appellant,
Lillian Annette Mumford.
Joe Leslie Mumford, Knoxville, Tennessee, pro se Appellee.
Judge: SWINEY
First Paragraph:
After five years of marriage, Lillian Annette Mumford ("Wife") filed
for a divorce from Joe Leslie Mumford ("Husband"). Husband also filed
for a divorce. The Trial Court bifurcated the trial separating the
issues of divorce and property division. During the first portion of
the bifurcated trial, the Trial Court heard fault proof and in its
order entered March 19, 2002, found that both parties were entitled to
a divorce and declared the parties divorced pursuant to Tenn. Code
Ann. S 36-4-129. Wife appeals. We affirm.
http://www.tba.org/tba_files/TCA/mumfordla.wpd
LISA KAY ROGERS v. RICHARD BARRETT ROGERS Court:TCA Attorneys: William M. Monroe, Memphis, Tennessee, for Appellant. Phillip C. Lawrence, Chattanooga, Tennessee, for Appellee. Judge: FRANKS First Paragraph: In this divorce action, the Trial Court divided marital property and awarded child support and rehabilitative alimony. Both parties raise issues on appeal. We affirm, as modified. http://www.tba.org/tba_files/TCA/rogersl.wpd LAFEYETTE ROMINE, SR., & DEBRA P. ROMINE v. JULIA FERNANDEZ, CRNA & JOHNATHAN ISOM, M.D. WITH DISSENTING OPINION Court:TCA Attorneys: Teresa J. Sigmon, Claire M. Cissell, Memphis, TN, for Appellants Dixie White Ishee, Memphis, TN, for Appellees Judge: HIGHERS First Paragraph: In this medical malpractice action, Defendants appeal the trial court's decision allowing Plaintiffs to use Tennessee Code Annotated section 20-1-119 to add two new defendants after the one year statute of limitations had expired. Defendants also appeal the trial court's award of damages. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/rominelafeyette_opn.wpd JOHN RUFF v. RALEIGH ASSEMBLY OF GOD CHURCH, INC., ET AL.
Court:TCA
Attorneys:
John Ruff, pro se, Memphis, TN
Evan Nahmias, Memphis, TN, for Appellee
Judge: HIGHERS
First Paragraph:
This appeal arises from a complaint filed by the plaintiff, John Ruff
("Mr. Ruff"), in the Circuit Court at Shelby County against the
defendant, Raleigh Assembly of God Church, Inc. ("the church"), for
assault, battery, false imprisonment and intentional infliction of
emotional distress. At the conclusion of the trial, the trial court
entered judgment in favor of the church. The parties raise multiple
issues on appeal. For the following reasons, we affirm in part and
remand.
http://www.tba.org/tba_files/TCA/ruffjohn.wpd
UNION PLANTERS BANK, N.A., Executor and Trustee v. BOBBYE C. SHEPARD, ET AL. Court:TCA Attorneys: Robert F. Miller and Paul C. Peel, Memphis, Tennessee, for the appellant, Union Planters National Bank, N.A. J. Richard Rossie and David A. Billions, Memphis, Tennessee, for the appellee, Bobbye C. Shepard. Judge: FARMER First Paragraph: Executor brought this action to recover proceeds of the sale of decedent's property prior to decedent's death. Both parties moved for attorney's fees. The trial court entered judgment for Defendant and awarded Defendant's attorney's fees. On issues relating to decedent's property, we affirm in part and reverse in part. We reverse the award of attorney's fees and remand for a determination of reasonableness. http://www.tba.org/tba_files/TCA/unionplantersbank.wpd DONALD McARTHUR CARVER v. STATE OF TENNESSEE Court:TCCA Attorneys: Tim S. Moore, Newport, Tennessee, for the appellant, Donald McArthur Carver. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner appeals the denial of his petition for post-conviction relief. He contends that he accepted his plea bargain on the condition that he would serve his ten-year sentence in the county jail. No such agreement was contained in the plea agreement or announced in open court. However, the testimony is overwhelming that trial counsel gave assurances to the petitioner that, unless his medical condition changed or he was a discipline problem, he would be allowed to serve his ten-year sentence in the county jail. We conclude the advice and assurances given by trial counsel were erroneous, as contrary to the law. But for said advice and assurances, the petitioner would not have pled guilty. We reverse the post-conviction court's denial of relief, allow the petitioner to withdraw his guilty plea, and remand for new trial. http://www.tba.org/tba_files/TCCA/carverdm.wpd STATE OF TENNESSEE v. AUBREY A. DAVIS Court:TCCA Attorneys: Ardena J. Garth, District Public Defender; Donna Robinson Miller, Assistant District Public Defender (on appeal); and Charles G. Wright, Jr., Chattanooga, Tennessee (at trial), for the appellant, Aubrey A. Davis. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; William H. Cox, III, District Attorney General; and John H. Millican and Thomas E. Kimball, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: A jury found the defendant guilty of especially aggravated kidnapping and attempted aggravated sexual battery. The trial court sentenced him to concurrent terms of twenty-two years for the especially aggravated kidnapping and three years for the attempted aggravated sexual battery. On appeal, the defendant contends the trial court erred in allowing him to be convicted of both especially aggravated kidnapping and attempted sexual battery, since both crimes arose from a single act. Additionally, the defendant argues that the trial court erred in charging the jury as to the mens rea element of attempted aggravated sexual battery, erred in not suppressing a photograph identification, and erred in sentencing him to twenty-two years for the especially aggravated kidnapping. We find no errors in the trial court's rulings and affirm the judgments of the trial court on both convictions. However, we conclude the trial court misapplied aggravating and mitigating factors in sentencing the defendant for the especially aggravated kidnapping and modify the sentence accordingly. http://www.tba.org/tba_files/TCCA/davisaa.wpd STATE OF TENNESSEE v. STEVEN RAY HICKS Court:TCCA Attorneys: David B. Hill, Newport, Tennessee, for the appellant, Steven Ray Hicks. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Alfred C. Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant appeals from an order of the trial court which found him to be in violation of the conditions of his probation and ordered his sentence to be served in confinement. The State concedes that the trial court erred. Because the Defendant's term of probation had expired at the time the probation violation warrant was issued, the trial court's order finding the Defendant to be in violation of his probation is vacated. http://www.tba.org/tba_files/TCCA/hickssr.wpd STATE OF TENNESSEE v. SHATHA LITISSER JONES Court:TCCA Attorneys: Michael D. Rasnake, Jackson, Tennessee, for the appellant, Shatha Litisser Jones. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; James G. Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Shatha Litisser Jones, pled guilty in the Madison County Circuit Court to theft of property valued more than five hundred dollars but less than one thousand dollars, a Class E felony. The length and manner of service of her sentence were to be determined by the trial court, which sentenced the defendant as a Range I, standard offender to two years in the Department of Correction. The defendant appeals, claiming that her sentence is excessive and that she should have received probation or another sentence involving no confinement. We affirm the trial court's judgment of conviction. http://www.tba.org/tba_files/TCCA/jonesshathalitisser.wpd STATE OF TENNESSEE v. WINSTON CHADRICK McCLAIN Court:TCCA Attorneys: N. Andy Myrick, Jr., Fayetteville, Tennessee, for the appellant, Winston Chadrick McClain. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Winston Chadrick McClain, pled guilty in the Marshall County Circuit Court to aggravated robbery, a Class B felony, with the length of the sentence to be determined by the trial court. The trial court sentenced him as a Range I, standard offender to eleven years in the Department of Correction (DOC). The defendant appeals, claiming that his sentence is excessive because the trial court improperly applied enhancement factors and failed to apply and give proper weight to mitigating factors. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mcclainwinstonc.wpd BRYAN C. PEARSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Bryan C. Pearson, Pikeville, Tennessee, pro se. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; J. Michael Taylor, District Attorney General, for appellee, State of Tennessee. Judge: SMITH First Paragraph: The pro se appellant appeals from the summary dismissal of his petition for the writ of habeas corpus. Finding that summary dismissal was appropriate under the circumstances of this case, we affirm the judgment of the lower court. http://www.tba.org/tba_files/TCCA/pearsonbryan.wpd STATE OF TENNESSEE v. WILLIAM RAMSEY Court:TCCA Attorneys: George A. Burke, Sr., Spencer, Tennessee (on appeal); and Billy K. Tollison, McMinnville, Tennessee (at trial), for the appellant, William Ramsey. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Clement Dale Potter, District Attorney General; and Thomas J. Miner, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted by a Warren County Circuit Court jury of one count of aggravated robbery, a Class B felony, and one count of theft over $1000, a Class D felony, based on his participation in separate criminal acts that occurred over four months apart. The trial court sentenced him as a Range I, standard offender to nine years for the aggravated robbery conviction and three years for the theft conviction, with the sentences to be served concurrently, for an effective sentence of nine years in the Department of Correction. In this appeal as of right, the defendant argues that the trial court erred in denying his motion to sever the offenses; in refusing to find him indigent and denying his request for funds to hire an expert witness; and in enhancing his sentences from the presumptive minimum in the range. Following our review, we conclude the trial court did not err in denying the defendant's motion for severance; the trial court erroneously based its refusal to declare the defendant indigent, in part, on the defendant's mother's financial resources, but there was no error in the trial court's denial of the defendant's request for funds for an expert witness; and the defendant's theft sentence should be modified. Accordingly, we affirm the judgments of the trial court, but reduce the defendant's sentence for theft over $1000 from three years to two years, to be served concurrently to his nine-year sentence for aggravated robbery. http://www.tba.org/tba_files/TCCA/ramseywilliam.wpd STATE OF TENNESSEE v. DENNIS MICHAEL RICHARDSON Court:TCCA Attorneys: Michael Walcher, Greeneville, Tennessee, for the appellant, Dennis Michael Richardson. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Cecil Mills, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: Following a jury trial, the Defendant, Dennis Michael Richardson, was convicted of Class B misdemeanor assault. The trial court sentenced him to serve six months in the county jail. In this appeal, the Defendant argues that the trial court erred in its application of one of the sentencing enhancement factors. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/richardsondm.wpd STATE OF TENNESSEE v. SCOTT E. SNOW Court:TCCA Attorneys: Walter B. Johnson, Assistant Public Defender, Harriman, Tennessee, for appellant, Scott E. Snow. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; J. Scott McCluen, District Attorney General; and D. Roger Delp, Assistant District Attorney General; for appellee, State of Tennessee. Judge: SMITH First Paragraph: On June 19, 2000, the defendant, Scott E. Snow, was indicted by the Roane County Grand Jury for driving on a revoked license and driving under the influence, 3rd offense. On August 6, 2001, he was convicted by a jury of DUI 3rd, and acquitted of driving on a revoked license. The defendant received a sentence of 11 months and 29 days and was ordered to serve at least 240 days prior to release on probation. The defendant now brings this appeal claiming that the evidence was insufficient for the conviction of DUI. After a thorough review of the record, we find that the evidence is sufficient to sustain his conviction and there is no reversible error. Therefore the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/snowscot.wpd STATE OF TENNESSEE v. EZELL WALLACE Court:TCCA Attorneys: Brett B. Stein, Memphis, Tennessee, for the appellant, Ezell Wallace. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; and Greg Gilluly, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A jury convicted the Defendant of attempted first degree murder, a Class A felony. The trial court sentenced the Defendant as a Range I, standard offender to twenty-five years' incarceration. The Defendant now appeals, arguing that the trial court erred by denying his motion for new trial because (1) insufficient evidence was presented to support his conviction; (2) the trial court made an improper evidentiary ruling; and (3) the trial court gave the jury improper and inadequate instructions. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/wallacee.wpd JOHN W. WILCOX v. STATE OF TENNESSEE Court:TCCA Attorneys: John W. Wilcox, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; Jerry N. Estes, District Attorney General; and William W. Reedy, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner appeals the denial of his petition for post-conviction relief. The petitioner contends that he received ineffective assistance of counsel and that the State engaged in a vindictive prosecution and failed to perform testing on evidence which would have supported his claim of self- defense. We conclude that the evidence does not preponderate against the findings of the post- conviction court. We affirm the post-conviction court's denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/wilcoxjw.wpd STATE OF TENNESSEE v. TRAVIS J. WOODS Court:TCCA Attorneys: Charles P. Dupree, Chattanooga, Tennessee, for the appellant, Travis J. Woods. Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General; Bill Cox, District Attorney General; and Parke Masterson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant, Travis J. Woods, was convicted of attempted first degree murder, aggravated assault and reckless endangerment. For these convictions the defendant received sentences of 35 years, 6 years, and 2 years, respectively. The sentences were ordered to run consecutively. In this appeal the defendant argues that: (1) the evidence is insufficient to support the verdicts of guilt for attempted first degree murder and aggravated assault, (2) the trial court erroneously denied the defendant's motion to dismiss the aggravated assault charge pursuant to Tenn. R. Crim. P. 8, (3) the trial court erred in refusing to order ballistics testing, (4) the jury instructions were erroneous, and (5) the sentence is excessive. We find no reversible error in this record and therefore affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/woodstravis.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 |
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