Opinion FlashNovember 12, 2003
Volume 9 Number 207
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):
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Howard H. Vogel
RICHARD W. FELDMAN, M.D. v. TENNESSEE BOARD OF MEDICAL EXAMINERS Court:TCA Attorneys: Frank J. Scanlon, William R. O'Bryan, Jr., Richard C. Rose, Nashville, TN, Attorneys for Appellant Paul G. Summers, Attorney General & Reporter, Sue A. Sheldon, Senior Counsel, Nashville, TN, for Appellee Judge: HIGHERS First Paragraph: This is an appeal from a Chancery Court's review of an administrative hearing concerning violations of the Tennessee General Rules and Regulations Governing the Practice of Medicine for advertising. For the following reasons, we affirm the decision of the Tennessee Board of Medical Examiners. http://www.tba.org/tba_files/TCA/feldmanrichardw.wpd
THAD GUERRA, ET AL. v. LEONARD PEEKS, ET AL. Court:TCA Attorneys: Timothy W. Burrow and Christopher D. Cravens, Nashville, Tennessee, attorneys for appellants, Thad Guerra and Darlene Guerra. John T. Gwin, Mr. Juliet, Tennessee, attorney for appellees, Leonard Peek and K&P, Inc. David B. Scott, Nashville, Tennessee, attorney for appellees, Jim Sellers and Crye-Leike, Inc. Judge: INMAN First Paragraph: The permit for a sewage disposal system required that the driveway be constructed along the lot line and be no wider than ten feet. The plaintiffs, during the course of constructing a residence on their lot, did not locate the driveway along the lot line as required, and made it twenty-five feet wide. The system was disapproved by the State unless the plaintiffs obtained a duplicate area, i.e., procured by easement or purchase square footage equivalent to the footage utilized by the mis-located, widened driveway. The complaint was filed more than three years after the disapproval by the State, the date on when the cause of action accrued, and the action was dismissed. We affirm. http://www.tba.org/tba_files/TCA/guerra.wpd
JUDY LONGMIRE, ET UX, v. THE KROGER COMPANY, D/B/A KROGER STORE NO. 581, ET AL. CORRECTED OPINION Court:TCA Attorneys: James T. Shea, IV, Knoxville, Tennessee, for Appellants. Archie R. Carpenter, Knoxville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: In this action for damages for injuries suffered when plaintiff fell on defendant's premises, the Trial Court granted defendant summary judgment. On appeal, we vacate and remand. http://www.tba.org/tba_files/TCA/longmirej.wpd
PHILLIP WATSON, ET AL. v. METRO GOVT OF NASHVILLE AND DAVIDSON CO., TN., ACTING BY AND THROUGH THE NASHVILLE ELECTRIC SERVICE POWER BOARD (NES), ET AL. Court:TCA Attorneys: Thurman Thurston McLean, Madison, Tennessee, attorney for Appellants, Phillip Watson and Linda Watson. Aubrey B. Harwell, III, Aubrey B. Harwell, Jr., Eugene W. Ward, Gerald Neenan and Laura Isreal Smith, Nashville, Tennessee, attorneys for Appellee, Metropolitan Government of Nashville and Davidson County, Tennessee, acting by and through the Nashville Electric Service Power Board (NES). Judge: INMAN First Paragraph: A truck snagged a cable television service line and tore it, together with the power lines of NES which were directly above the television line, from the plaintiffs' residence. Liability was sought to be fastened on NES on the theory that its service power lines were too low. NES relied on its immunity from suit under Tennessee Code Annotated S 29-20-204(b) because it had no actual or constructive notice of any alleged "dangerous or defective condition of a structure or public improvement." The trial court ruled that the response to the motion was insufficient and dismissed the suit. We affirm. http://www.tba.org/tba_files/TCA/watsonphillip.wpd
WAYFORD DEMONBREUN JR. v. STATE OF TENNESSEE Court:TCCA Attorneys: Gregory D. Smith, Franklin, Tennessee, Attorney for Appellant, Wayford Demonbreun. Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney General; William Edward Gibson, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Wayford Demonbreun Jr. appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief. Claiming he did not receive the effective assistance of counsel at trial and on appeal, he requests a delayed appeal. Because we are unpersuaded that counsel rendered prejudicial ineffective assistance and because a direct appeal is not the appropriate remedy for the claimed errors, we affirm the lower court's denial of the claim. http://www.tba.org/tba_files/TCCA/demonbreunwayford.wpd
STATE OF TENNESSEE v. JOSHUA A. FELTS Court:TCCA Attorneys: John H. Henderson, District Public Defender, and Gene Honea, Assistant Public Defender, for the appellant, Joshua A. Felts. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Joshua A. Felts, was indicted for forty-four felonies in three separate indictments, including nineteen counts of aggravated burglary, a Class C felony; three counts of burglary, a Class D felony; three counts of theft over $10,000, a Class C felony; seventeen counts of theft over $1,000, a Class D felony; and two counts of theft over $500, a Class E felony. He entered an open plea of guilty to all counts, in exchange for being sentenced as a Range I, standard offender, and was sentenced to five years for each Class C felony, three years for each Class D felony, and one year for each Class E felony; the sentences of the same crimes, within the same indictment, to run concurrently but consecutively to all other crimes, for an effective sentence of twenty-one years. The trial court ordered the defendant's sentences in Indictment Nos. II-1201-398A and II-202-072 to be served concurrently but consecutively to Indictment No. II-1001-308 and a prior eighteen-year Rutherford County sentence. The defendant appeals, arguing that the trial court abused its discretion in ordering consecutive sentences. Following our review, we affirm the judgments of the trial court but remand for entry of corrected judgments in Indictment Nos. II-1201-398A and II-202-072. http://www.tba.org/tba_files/TCCA/feltsjoshuaa.wpd
STATE OF TENNESSEE v. HOWARD GLIDEWELL Court:TCCA Attorneys: Robert Stovall, Columbia, Tennessee, for the Appellant, Howard Glidewell. Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; Mike Bottoms, District Attorney General; and Daniel Runde, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, Howard Glidewell, appeals the Maury County Circuit Court's revocation of his probation. Because the lower court's decision to revoke probation was grounded within that court's discretion, we affirm the revocation. http://www.tba.org/tba_files/TCCA/glidewellhoward.wpd
STATE OF TENNESSEE v. SPIKE HEDGECOTH Court:TCCA Attorneys: Larry M. Warner, Crossville, Tennessee, for the appellant, Spike Hedgecoth. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; and Gary McKenzie and Anthony Craighead, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Spike Hedgecoth, was convicted of three counts of theft of property valued at greater than $10,000, class C felonies, and two counts of theft of property valued at greater than $1,000, class D felonies. See Tenn. Code Ann. SS 39-14-103, -105(3), (4). The trial court imposed a Range II sentence of ten years on each of the class C felonies and eight years on each of the class D felonies. The trial court ordered that all of the class C felony sentences and one of the class D felony sentences be served concurrently. The remaining class D felony sentence was to be served consecutively, for an effective sentence of eighteen years. In this appeal as of right, the defendant alleges (1) that the evidence is insufficient to support his convictions; (2) that the trial court erred by admitting into evidence audio recordings of telephone calls placed by the defendant from the Cumberland County jail; (3) that due to his intoxication, the defendant was unable to assist in his defense; and (4) that the sentence is excessive. The judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/hedgecothspike.wpd
MARSHALL MOFFETT v. KEVIN MEYERS, WARDEN Court:TCCA Attorneys: Marshall Moffett, pro se, Clifton, Tennessee. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee, Kevin Myers, Warden. Judge: SMITH First Paragraph: The pro se appellant appeals from the 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/moffettmarshall.wpd
STATE OF TENNESSEE v. JOSEPH L. ROBINSON, JR. Court:TCCA Attorneys: Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on appeal); and Jonathan Farmer, Assistant Public Defender (at trial), for the appellant, Joseph L. Robinson, Jr. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Deborah Housel, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant appeals the revocation of his probation, arguing that the evidence was insufficient for the revocation and the trial court erroneously considered as evidence both the victim's preliminary hearing testimony and an earlier written statement she had made. We agree that the trial court erred in considering the victim's written statement but conclude the error was harmless because other evidence, including her preliminary hearing testimony, provided sufficient basis to revoke the defendant's probation. Accordingly, we affirm the order of the trial court. http://www.tba.org/tba_files/TCCA/robinsonjosephl.wpd
STATE OF TENNESSEE v. RANDALL LEE WILMOTH Court:TCCA Attorneys: Edward Dewerff (at trial), Clarksville, Tennessee, and Patricia L. Snyder (on appeal), Nashville, Tennessee, for the Appellant, Randall Lee Wilmoth. Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Following a Montgomery County Circuit Court jury conviction of attempted second-degree murder, the defendant, Randall L. Wilmoth, appeals and claims that his conviction resulted from the denial of effective assistance of counsel, that insufficient evidence supports the conviction, and that cumulative errors deprived him of a fair trial. Discerning no errors or violations of the defendant's rights, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/wilmothrandalllee.wpd
Salary Increases for Local Legislative Bodies and Boards Date: November 7, 2003 Opinion Number: 03-140 http://www.tba.org/tba_files/AG/2003/op140.pdf
Alternative Misdemeanor Jail Facilities Date: November 7, 2003 Opinion Number: 03-141 http://www.tba.org/tba_files/AG/2003/op141.pdf
County Building Inspectors: Residential Rental Property Date: November 7, 2003 Opinion Number: 03-142 http://www.tba.org/tba_files/AG/2003/op142.pdf
Probate Court Clerk in Unicoi County Date: November 7, 2003 Opinion Number: 03-143 http://www.tba.org/tba_files/AG/2003/op143.pdf
Claiborne County Utility District Date: November 7, 2003 Opinion Number: 03-144 http://www.tba.org/tba_files/AG/2003/op144.pdf
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