Opinion Flash

April 15, 2004
Volume 10 — Number 73

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
04 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


ALICE JUNE ATKINS and CLARA OLLIE NEEDHAM v. STATE OF TENNESSEE

Court:TCA

Attorneys:      
 
Paul G. Summers, Attorney General and Reporter, Dawn Jordan and Sarah T.
Chambers, Assistant Attorneys General, Nashville, Tennessee, for
Appellant.

Mark S. Stapleton, Rogersville, Tennessee, for Alice June Atkins.

D. Scott Hurley, Knoxville, Tennessee, for Clara Needham.

W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for Appellees on Appeal
Only.

Judge: FRANKS

First Paragraph:

The Claims Commissioner awarded damages for personal injuries to
claimants on grounds the State was liable under Tennessee Code Annotated
S 9-8-307(a)(1)(I).  On appeal, we affirm.

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

JJ & TK CORP., ET AL. v. BOARD OF COMMISSIONERS OF THE CITY OF FAIRVIEW,
TENNESSEE, ET AL.

Court:TCA

Attorneys:

A. Scott Derrick and Phillip P. Welty, Nashville, Tennessee, for the
appellants,  JJ & TK Corp., Joanne McCord, Jeff McCord, Kristin Mathes
and Tim Mathes.

James D. Petersen, Franklin, Tennessee, for the appellees, Board Of
Commissioners of the City of Fairview, Tennessee, Eddie Arney, Ken
Brison, Wayne Hall, Mayor Darrell Mangrum, Vice-Mayor Stuart Johnson,
and the City of Fairview Tennessee.                     

Judge: WEATHERFORD

First Paragraph:

In this case the defendant, the Board of Commissioners of the City of
Fairview, declined to grant a certificate of compliance to the
plaintiffs, who sought to operate a retail liquor store at the entrance
of Bowie Nature Park in Fairview, Tennessee.  The plaintiffs contend
they met all the legal requirements in effect at the time of their
application; and that the defendant based its decision on a pending
ordinance which required a minimum distance of 1000 feet between liquor
stores and public parks.  The trial court granted summary judgment for
the defendant.   We reverse the decision of the trial court.

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

IN RE: ESTATE OF HARRY SANDERS

Court:TCA

Attorneys:

Ted W. Daniel, Shelbyville, Tennessee, for the appellant, Marshall
Sanders.

Anthony W. Harris, Shelbyville, Tennessee, for the appellee, Estate of
Harry Sanders,  Rosalyn Vine, Executrix.

Judge: COTTRELL

First Paragraph:

A fifty-two year old man brought a claim against his father's estate for
twenty-seven semesters of post-secondary educational expenses,
contending that the father had agreed to pay those expenses as part of a
Michigan divorce settlement thirty-five years earlier, but had failed to
make more than a nominal payment.  The trial court dismissed the claim. 
The son argues on appeal that a correct interpretation of the relevant
choice of law statutes would have compelled the trial court to approve
his claim.  We do not agree, and we affirm the trial court.

http://www.tba.org/tba_files/TCA/sandersh1.wpd

DANIEL LEE STEVENSON v. TRACY DAWN STEVENSON

Court:TCA

Attorneys:

Robert D. Massey, Pulaski, Tennessee, for the appellant, Tracy Dawn
Stevenson.

Jon S. Jablonski, Nashville, Tennessee, for the appellee, Daniel Lee
Stevenson.

Judge: FARMER

First Paragraph:

This appeal arises from the trial court's award of primary residential
custody of the parties' minor children to their father.  We affirm.

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

STATE OF TENNESSEE v. ALLISON L. BREWINGTON

Court:TCCA

Attorneys:   

Ross E. Alderman, District Public Defender; William J. Steed, Assistant
Public Defender (on appeal) for the Appellant, Allison L. Brewington.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor
General; Thomas E. Williams, III, Assistant Attorney General; Victor S.
(Torry) Johnson, III, District Attorney General; and Angelita Dalton,
Assistant District Attorney General, for the Appellee, State of
Tennessee.
                       
Judge: HAYES

First Paragraph:

The Appellant, Allison L. Brewington, appeals the decision of the
Davidson County Criminal  Court revoking his probation and ordering
reinstatement of his original sentence.  Brewington pled guilty to the
aggravated assault of his girlfriend on October 28, 2002, and received a
four-year suspended sentence.  On December 5, 2002, a warrant was
issued, alleging that Brewington violated his probation by harassing the
victim on two occasions and failing to report his arrests for these
offenses to his probation officer.  On appeal, Williams raises the
following issues for our review: (1) whether the trial court erred in
revoking his probation because the State failed to prove by a
preponderance of the evidence that he was guilty of harassment, (2)
whether the trial court erred by requiring him to serve his entire
sentence in confinement, and (3) whether the trial court improperly
considered allegations not contained within the violation warrant. 
After review, we find that the trial court did not abuse its discretion
by revoking Brewington's probation and ordering reinstatement of his
original four-year sentence.

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

STATE OF TENNESSEE v. RAFAEL A. BUSH

Court:TCCA

Attorneys: 

Terry A. Fann, Murfreesboro, Tennessee, for the appellant, Rafael A.
Bush.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarborough, Assistant Attorney General; William C. Whitesell, Jr.,
District Attorney General; and Paul A. Holcombe, III, and John W. Price,
III, Assistant District Attorneys General, for the appellee, State of
Tennessee.

Judge: TIPTON

First Paragraph:

A Rutherford County Circuit Court jury convicted the defendant, Rafael
A. Bush, of especially aggravated robbery, a Class A felony; aggravated
burglary, a Class C felony; and aggravated assault, a Class C felony. 
The trial court sentenced him as a violent offender to twenty-two years
for the robbery conviction, four years for the burglary conviction, and
four years for the assault conviction, all to run concurrently.  The
defendant appeals, claiming that (1) the evidence is insufficient to
support his convictions; (2) the trial court erred by allowing the jury
to hear about the defendant's other bad acts; (3) the trial court erred
by refusing to allow the defense to cross-examine Detective Dan Goodwin
about the victim's identifying someone other than the defendant as the
person who shot the victim; (4) the trial court erred by allowing the
state to ask Detective Goodwin questions on redirect examination that
were outside the scope of his cross-examination testimony; (5) the trial
court erred by refusing to allow the defense to ask codefendant Michael
May a question in order to show his bias against the defendant; (6) the
trial court erred by allowing a witness to testify for the state when
the witness was not on the state's witness list and her testimony was
irrelevant; (7) the trial court erred by telling the jury that the state
dismissed an attempted first degree murder charge against the defendant;
(8) a new trial is warranted because the state failed to prove that the
crimes were committed before the indictment was returned as required by
T.C.A. S 39-11-201(a)(4); (9) the trial court erred by refusing to
charge attempt as a lesser included offense; (10) the defendant's
sentence for especially aggravated robbery is excessive; and (11)
cumulative errors denied the defendant his right to a fair trial.  We
conclude that the trial court erred by allowing the jury to hear about
the defendant's other bad acts and by refusing to allow the defense to
ask Michael May a question but that these errors do not warrant
reversal.  We also conclude that the defendant's sentence is not
excessive, and we affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. RICKY ALLEN DAVIS

Court:TCCA

Attorneys:

David O. McGovern, Assistant Public Defender, Jasper, Tennessee, for the
appellant, Ricky Allen Davis.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; and Steven M. Blount, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: MCGEE OGLE

First Paragraph:

The appellant, Ricky Allen Davis, was convicted by a Franklin County
Jury of one count of assault, a Class A misdemeanor; two counts of
vandalism under $500, Class A misdemeanors; and one count of disorderly
conduct, a Class C misdemeanor.  Following a sentencing hearing, the
trial court sentenced the appellant on each of the Class A misdemeanors
to eleven months and twenty-nine days confinement and on the Class C
misdemeanor to thirty days confinement to be served in the county jail
at seventy-five percent.  On appeal, the appellant contends that the
trial court erred by allowing the victim's mother to testify at the
sentencing hearing regarding the victim's nightmares resulting from the
assault.  Upon review of the record and the parties' briefs, we affirm
the judgments of the trial court.

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

THOMAS WILLIAM FARR v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

David M. Hopkins, Nashville, Tennessee, for the appellant, Thomas
William Farr.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant
Attorney General; Victor S. Johnson, District Attorney General; and Tom
Thurman, Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: WOODALL

First Paragraph:

The Defendant, Thomas Farr, pled guilty to one count of second degree
murder and two counts of solicitation to commit first degree murder.  In
accordance with the plea agreement, the Defendant was sentenced to
thirty years on the murder charge and to eight years on each of the
solicitation charges, which terms were concurrent to each other but
consecutive to the thirty year term, for an effective sentence of
thirty-eight years.  The Defendant subsequently filed for
post-conviction relief on the grounds that his lawyer was ineffective
and that his plea was not knowingly and voluntarily entered.  After a
hearing, the trial court denied relief.  This appeal followed.  We
affirm the judgment of the trial court.

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

MONOLETO D. GREEN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

R. Steve Waldron, Murfreesboro, Tennessee, for the Appellant, Monoleto
Green.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; William C. Whitesell, Jr., District Attorney
General; and Jennings Jones, Assistant District Attorney General, for
the Appellee, State of Tennessee.                        

Judge: CURWOOD

First Paragraph:

Monoleto D. Green appeals from the Rutherford County Circuit Court's
denial of his petition for post-conviction relief.  He claims that he
did not receive the effective assistance of counsel in the conviction
proceedings and, as a result, his guilty plea was involuntary.  Because
he has failed to demonstrate error in the lower court's ruling, we
affirm.

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

STATE OF TENNESSEE v. COREY LAMONT RADLEY

Court:TCCA

Attorneys:      

Emma Rae Tennent (on appeal); J. Michael Engle (at trial); and William
J. Steed, Nashville, Tennessee, for the appellant, Corey Lamont Radley.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Jon Seaborg, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

A jury convicted the Defendant, Corey Lamont Radley, of second degree
murder.  The trial court subsequently sentenced him as a Range I
offender to twenty-five years of incarceration.  In this direct appeal,
the Defendant challenges the sufficiency of the evidence; contests the
admission of certain evidence; and complains that his sentence is
excessive.  We affirm the judgment of the trial court.

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

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