Opinion FlashMarch 31, 2004Volume 10 — Number 062 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 PHIL MITCHELL v. JOHN VAN ZYLL, ET AL. Court:TCA Attorneys: Phil Mitchell, pro se Appellant. Lisa A. Temple, Knoxville, Tennessee, for the Appellee Ann Furlong. Judge: SWINEY First Paragraph: Phil Mitchell ("Plaintiff") sued his next-door neighbors, John Van Zyll ("Van Zyll") and Ann Furlong ("Furlong"), for malicious prosecution. Plaintiff alleged that Van Zyll and Furlong "caused to be issued against [him] a criminal warrant for his arrest, alleging aggravated assault and reckless endangerment." The criminal charges against Plaintiff were dismissed. Defendants filed a motion for summary judgment, which the Trial Court granted as to Furlong but denied as to Van Zyll. Plaintiff appeals the Court's ruling in favor of Furlong. We affirm. http://www.tba.org/tba_files/TCA/mitchelp.wpd TRACIE MARIE SHIPWASH, ET AL. v. MEADOWOOD APARTMENTS
Court:TCA
Attorneys:
Jeffrey R. Thompson, Knoxville, Tennessee, for the appellant,
Meadowood Apartments.
T. Scott Jones, Knoxville, Tennessee, for the appellees, Tracie Marie
Shipwash and Dennis Marine.
Judge: SUSANO
First Paragraph:
This is a premises liability case. Tracie Marie Shipwash and Dennis
Marine sued Meadowood Apartments ("Meadowood") to recover for damage
done to their respective vehicles when a tree located near a parking
area at the apartment complex fell on the vehicles during a severe
storm. At the bench trial below, the plaintiffs offered the testimony
of a tree expert, who opined that his examination of photographs of
the fallen tree revealed signs of deterioration and that the tree
should have been removed prior to the storm. The trial court held
that the tree removal service hired by Meadowood to make an annual
inspection of the apartment property was Meadowood's agent, and that,
as a consequence of this fact, Meadowood is liable based upon its
imputed constructive notice of the dangerous condition created by the
tree's condition. Meadowood appeals. We reverse.
http://www.tba.org/tba_files/TCA/shipwa.wpd
DARRON CLAYTON v. STATE OF TENNESSEE Court:TCCA Attorneys: Darron Clayton, Pro se. 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 Julie B. Mosley, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Shelby County jury convicted the Petitioner, Darron Clayton, of second degree murder, and the trial court imposed a twenty-year sentence. On appeal, this Court affirmed the conviction and the sentence, and the Tennessee Supreme Court denied the Petitioner's application for permission to appeal. The Petitioner filed a pro se petition for writ of habeas corpus, and the trial court dismissed the petition without a hearing. Three months later, the Petitioner filed a second petition for writ of habeas corpus raising the same issues as in his first petition, and the trial court again dismissed the petition. On appeal, the Petitioner contends that the trial court erred in dismissing his petition because his sentence is illegal. Finding no reversible error, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/claytondarron.wpd STATE OF TENNESSEE v. ELROY GAINES Court:TCCA Attorneys: Tony N. Brayton (on appeal), Mary K. Kent (at trial), and Robert H. Gowen (at trial), Assistant Public Defenders, for the appellant, Elroy Gaines. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; William L. Gibbons, District Attorney General; and Steve Jones, Assistant District Attorney General, for the appellant, State of Tennessee. Judge: RILEY First Paragraph: A Shelby County jury convicted the defendant of aggravated sexual battery. The trial court sentenced the defendant as a career offender to thirty years. The defendant contends on appeal that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/gaineselroy.wpd STATE OF TENNESSEE v. DAVID CURTIS LYNN Court:TCCA Attorneys: Jerred A. Creasy, Charlotte, Tennessee, for the appellant, David Curtis Lynn. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Dan Alsobrooks, District Attorney General; and Kim Menke, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, David Curtis Lynn, was convicted of second offense driving under the influence. As a result, he was sentenced to 11 months and 29 days. He was ordered to serve 90 days in jail and the remainder of his sentence on probation. The appellant apparently violated probation sometime in 2001 and, as a result of that violation, the trial court extended his probation by six months. After a hearing on what appears to be a second probation violation, the trial court entered an order revoking the appellant's probation and ordering him to serve his sentence in confinement. On appeal, the appellant argues that the trial court abused its discretion in revoking his probation and that his sentence had expired at the time the trial court revoked his probation. We affirm the trial court's revocation of the appellant's probation and decline to address the issue regarding the expiration of the appellant's sentence due to an inadequate and incomplete record on appeal. http://www.tba.org/tba_files/TCCA/lynndavid.wpd STATE OF TENNESSEE v. MICHAEL A. MOORE Court:TCCA Attorneys: Didi Christie, Brownsville, Tennessee, for the appellant, Michael A. Moore. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Following a bench trial in general sessions court, the defendant was convicted of DUI. On the same day, he filed notice of appeal to the circuit court. The circuit court judge's administrative assistant advised the defendant by letter to appear before the court to set a trial date. The defendant failed to appear as scheduled, and the circuit court dismissed the appeal. The defendant now appeals the circuit court's dismissal. Because the record does not reveal any notice to or participation by appointed counsel at the circuit court level, we reverse the judgment of the circuit court and remand for further proceedings. http://www.tba.org/tba_files/TCCA/moorema.wpd STATE OF TENNESSEE v. STEVAN CRAIG MULLEN Court:TCCA Attorneys: Mark Stewart, Winchester, Tennessee, for the appellant, Stevan Craig Mullen. Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney General; J. Michael Taylor, District Attorney General; and William B. Copeland, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Stevan Craig Mullen, was indicted by the Franklin County Grand Jury for driving with an alcohol concentration of .10 or more, in violation of Tenn. Code Ann. S 55-10-401, and for reckless driving, in violation of Tenn. Code Ann. S 55-10-205. Following a jury trial, Defendant was convicted of driving with an alcohol concentration of .10 or more and acquitted of reckless driving. Defendant was sentenced to eleven months and twenty-nine days, with all but forty-eight hours of his sentence suspended. In addition, his driver's license was revoked for one year, and he was ordered to perform 100 hours of public service work and fined $350.00. In this appeal as of right, Defendant challenges the trial court's denial of his motion to suppress his breathalyzer test results. After reviewing the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mullenstevanc.wpd STATE OF TENNESSEE v. FINUS RODGERS Court:TCCA Attorneys: Robert Wilson Jones, District Public Defender; and Robert H. Gowan and Tony N. Braxton, Assistant Public Defenders, for the Appellant, Finus Rodgers. Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: A Shelby County jury convicted the defendant, Finus Rodgers, of aggravated robbery. Following a sentencing hearing, the trial court sentenced the defendant, as a Range I standard offender, to ten years confinement in the Department of Correction. On appeal, the defendant argues that insufficient evidence exists in the record to support his conviction. Our review convinces us that the evidence is legally sufficient, and we affirm the defendant's aggravated robbery conviction. http://www.tba.org/tba_files/TCCA/rodgersfinus.wpd STATE OF TENNESSEE v. WILLIAM C. TOMLIN, JR. Court:TCCA Attorneys: Douglas P. Nanney, Franklin, Tennessee, for the appellant, William C. Tomlin, Jr. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Ron Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, William C. Tomlin, Jr., was convicted by a jury of aggravated burglary and theft over $1,000. Following a sentencing hearing, the trial court imposed consecutive sentences of fourteen years for the aggravated burglary and ten years for the theft. In this appeal, the Defendant argues that the trial court erred by denying two evidentiary motions, that the evidence is insufficient to support the convictions, and that the trial court erred in sentencing. We modify the aggravated burglary sentence to twelve years and affirm the judgments of the trial court in all other respects. http://www.tba.org/tba_files/TCCA/tomlinwc.wpd STATE OF TENNESSEE v. CHARLES WADE Court:TCCA Attorneys: Gary F. Antrican, District Public Defender; and Shana McCoy-Johnson, Senior Assistant District Public Defender, for the appellant, Charles Wade. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Terry D. Dycus, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: A Fayette County jury convicted the defendant of promoting prostitution. The trial court sentenced the defendant to five years' incarceration as a Range III persistent offender. On appeal, the defendant attacks the sufficiency of the evidence and his sentence. We discern no error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/wadecharles.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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