Opinion Flash

November 19, 2003
Volume 9 — Number 212

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
09 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


GLORIA J. GUINN v. LUCIOUS T. GUINN

Court:TCA

Attorneys:                          

Lucious T. Guinn, Jr., Germantown, TN, pro se

James V. Ball, Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This is an appeal from a final divorce decree awarding Wife an
absolute divorce on the ground of inappropriate marital conduct.  This
appeal comes to this Court without a record and only a statement of
the evidence.  For the following reasons, we affirm in part and remand
for further findings consistent with this opinion.

http://www.tba.org/tba_files/TCA/guinn.wpd

THE HARDISON LAW FIRM, P.C. v. CALVIN HOWELL

Court:TCA

Attorneys:                          

Nicholas E. Bragorgos, Thomas F. Preston of Nashville For Appellant,
Cross Appellee, Calvin Howell

J. Houston Gordon, Covington, For Appellee, Cross Appellant, The
Hardison Law Firm

Judge: CRAWFORD

First Paragraph:

This appeal arises from the breach of a commercial lease. 
Appellant/Landlord breached lease by failing to provide around the
clock security guard as required by the lease.  After notice and time
to cure, Appellee/Tenant vacated lease and moved its offices to a new
building.  Appellee/Tenant sued Appellant/Landlord for breach to
recover moving expenses, relocation costs,  increased rents, and
attorneys fees.  Appellee/Tenant was granted partial summary judgment
on the issue of Appellant/Landlord's breach of the lease.  After a
separate hearing on damages, Appellee/Tenant was awarded judgment
against Appellant/Landlord.  Appellant/Landlord appeals both the grant
of partial summary judgment and the award of damages.  We affirm as
modified herein.

http://www.tba.org/tba_files/TCA/hardis.wpd

STACEY ANNE SCHMALHOFER v. BRYAN MICHAEL SCHMALHOFER

Court:TCA

Attorneys:                          

Marc E. Reisman, Memphis, Tennessee, for the appellant, Bryan Michael
Schmalhofer.

Christopher L. Brown, Memphis, Tennessee, for the appellee, Stacey
Anne Schmalhofer.

Judge: KIRBY

First Paragraph:

This is a child custody case.  The parties were married in 1995.  At
that time, both were in the military and lived in North Carolina. 
About a year later, the parties had a daughter, who is the subject of
this dispute.  The father left the military.  In 1999, after the
mother received military orders, the parties moved to the navy base in
Millington, Tennessee.  Within a few months, the parties separated,
and the father moved back to his hometown in Pennsylvania.  In 2001,
both parties petitioned for divorce.  At the trial, the only dispute
was over custody of the parties' minor child.  After a bench trial,
the trial court granted custody to the mother, based in part on the
benefit of the child remaining in the same surroundings, rather than
moving to Pennsylvania with the father.  The father filed this appeal.
 While the appeal was pending, the appellate court granted the
father's motion  to consider the post-judgment facts that the mother
had remarried, her new husband is also in the military, and that she
and her new husband want to accept orders to move to England with the
child.  In light of the post-judgment facts, we reverse the trial
court's custody determination and award custody to the father.

http://www.tba.org/tba_files/TCA/schmal.wpd

ANTONIO BONDS v. STATE OF TENNESSEE
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Antonio Bonds, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General;  and William L. Gibbons, District Attorney
General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The petitioner, Antonio Bonds, appeals the dismissal of his petition
for post-conviction relief based upon its filing beyond the statute of
limitations.  He argues his petition was timely filed.  We hold that
for purposes of the  post-conviction relief statute of limitations,
the final action of the Tennessee Supreme Court is the date of its
denial of an application for permission to appeal, not the date it
denied the petition to rehear.  Because the instant petition was filed
more than one year from the date of denial of the application for
permission to appeal, we affirm the judgment of the post-conviction
court.

http://www.tba.org/tba_files/TCCA/bondsa_opn.wpd
DISSENTING OPINION http://www.tba.org/tba_files/TCCA/bondsa_dis.wpd

BILLY B. BROWN V. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Gray W. Bartlett, Memphis, Tennessee, for the appellant, Billy B.
Brown.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Scot A. Bearup, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The petitioner appeals the denial of post-conviction relief.  He
argues the post-conviction court erred in determining he received the
effective assistance of counsel at his trial.  We affirm the judgment
of the post-conviction court.

http://www.tba.org/tba_files/TCCA/brownb.wpd

DEVON CRAWFORD v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Charles W. Gilchrist, Jr., Memphis, Tennessee, for appellant, Devon
Crawford.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and P. Thomas Hoover, Assistant District Attorney General,
for appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

On August 19, 1999, the petitioner, Devon M. Crawford, filed a pro se
petition for post-conviction relief from his convictions of
aggravated robbery, especially aggravated robbery and first degree
murder.   Counsel was appointed and an evidentiary hearing was held.
In this appeal, petitioner argues that the trial court erred in
dismissing his petition for post-conviction relief.    After a review
of the record, we reverse and remand this case to the trial court for
a decision on the merits of the post-conviction petition as it
relates to indictments 97-02686 and 97-03493.

http://www.tba.org/tba_files/TCCA/crawf.wpd

STATE OF TENNESSEE v. KEVIN D. GUFFEY

Court:TCCA

Attorneys:                          

Bryan H. Hoss, Lee Davis, and David W. Wallace, Chattanooga,
Tennessee, for the appellant, Kevin D. Guffey.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William H. Cox, District Attorney General;
and Mary Sullivan Moore, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Kevin D. Guffey, pled guilty in the Hamilton County
Criminal Court to driving under the influence (DUI), a Class A
misdemeanor.  The trial court sentenced the appellant to eleven months
and twenty-nine days in the county workhouse, to be suspended after
serving forty-eight hours, and imposed a fine in the amount of three
hundred sixty dollars ($360).  The trial court also suspended the
appellant's driver's license for one year and ordered the appellant to
attend "DUI school."  Pursuant to the plea agreement, the appellant
reserved the right to appeal a certified question of law challenging
the trial court's denial of his motion to suppress.  Upon review of
the record and the parties' briefs, we affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TCCA/guffeykd.wpd

STATE OF TENNESSEE v. TORRANCE MAURICE KNIGHT

Court:TCCA

Attorneys:                          

David R. Barrow, Chattanooga, Tennessee, for the appellant, Torrance
Maurice Knight.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General;  Randall Eugene Nichols, District Attorney
General; and Lila Statom, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant pled guilty to three counts of aggravated assault, two
counts of solicitation of a minor,  four counts of indecent exposure,
and possession of a dangerous weapon.  He agreed to an effective
five-year sentence, with the manner of service to be determined by the
trial court.  The defendant contends that the trial court erred in
denying him an alternative sentence.  We affirm the judgments of the
trial court.

http://www.tba.org/tba_files/TCCA/knighttm.wpd

STATE OF TENNESSEE v. CALVIN LYONS, SR.

Court:TCCA

Attorneys:                          

Stephen P. Spracher, Jackson, Tennessee, for the appellant, Calvin
Lyons, Sr.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Jerry Woodall, District Attorney General;
and Jody Pickens, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Calvin Lyons, Sr., appeals as of right from the
judgment of the trial court, which revoked the Defendant's probation
and reinstated his original sentence.  Finding no error, we affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/lyonsc.wpd

STATE OF TENNESSEE v. TERRANCE G. MOTLEY

Court:TCCA

Attorneys:                          

Robert Wilson Jones, Shelby County Public Defender; Tony N. Brayton,
Assistant Public Defender, Memphis, Tennessee, on appeal, for the
Appellant, Terrance G. Motley.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Thomas E. Williams, III, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Jennifer
Nichols and Amy Weirich, Assistant District Attorneys General, for the
Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Terrance G. Motley, was convicted by a Shelby County
jury of criminal attempt to commit first degree murder and being a
felon in possession of a firearm.  He was sentenced to an effective
sentence of forty-four years in the Department of Correction.  At
trial, Motley waived his right to be represented by counsel and
proceeded pro se.  On appeal, Motley raises three issues for our
review: (1) whether the trial court denied him his constitutional
right to the assistance of counsel by failing to ascertain if his
waiver was knowingly and intelligently given; (2) whether the trial
court erred in failing to instruct the jury on the lesser included
offense of criminal attempt to commit voluntary manslaughter; and (3)
whether the evidence was sufficient to support the jury's verdict. 
After a review of the record, we conclude that issues (1) and (3) are
without merit.  With regard to  issue (2), we conclude that failure to
give an instruction on the lesser included offense of attempted
voluntary manslaughter was error, but harmless.  Accordingly, the
judgments of conviction are affirmed.

http://www.tba.org/tba_files/TCCA/motleyt.wpd

STATE OF TENNESSEE  v. THOMAS ANTHONY TALLEY 

Court:TCCA

Attorneys:                          

Harold R. Gunn, Humboldt, Tennessee, for the appellant, Thomas Anthony
Talley.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Garry G. Brown, District Attorney
General; and Jerald Campbell, Assistant District Attorney, for the
appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant was convicted of driving under the influence, fourth
offense, and violation of the implied consent law.  He contends on
appeal that (1) there was no reasonable suspicion for the stop and (2)
the evidence was insufficient because the officer used a
non-standardized test.  Crossing the yellow line on several occasions
and almost hitting a trooper provided sufficient probable cause for
the stop, and the evidence was sufficient to support the conviction. 
We affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/talleyta.wpd

ANDRE WILSON v. STATE OF TENNESSEE
DISSENTING OPINION

Court:TCCA

Judge: HAYES

First Paragraph:

I am unable to join with the majority in affirming dismissal of the
petition upon grounds that it was time-barred.

http://www.tba.org/tba_files/TCCA/wilsonandre_dis.wpd

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