Opinion FlashMay 19, 2004Volume 10 — Number 097 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 VULCAN MATERIALS COMPANY v. CHRISTOPHER DALE WATSON Court:TSC - Workers Comp Panel Attorneys: D. Brett Burrow, Gordon C. Aulgur, Brewer, Krause & Brooks, Nashville, Tennessee, for the Appellant Vulcan Materials Company. Jay R. Slobey, Blackburn & McCune, Nashville, Tennessee, for Christopher Dale Watson Judge: PEOPLES First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer claims that the trial court erred (1) in finding work-related disability from aggravation of a back problem, (2) in denying reimbursement of overpayment of temporary total disability benefits by the Second Injury Fund, and (3) in ordering the employer to pay the employee's attorney's fees. We affirm in part and reverse in part. http://www.tba.org/tba_files/TSC_WCP/vulcanvmaterials.wpd FIRST NATIONAL OF NORTH AMERICA, LLC v. MICHAEL MARKS WITH DISSENTING OPINION Court:TCA Attorneys: Peter H. Curry, Nashville, Tennessee, for the appellant, Michael Marks. Colin J. Carnahan, Nashville, Tennessee, for the appellee, First National of North America, LLC. Judge: CLEMENT First Paragraph: Plaintiff First National of North America, LLC (FNNA) brought a claim for unjust enrichment against Michael Marks. Marks had refinanced his home mortgage through Morgan International, which was owned by Jerry Levine. The purpose of the refinancing was to pay off an existing mortgage owing to a third party and to obtain net proceeds of approximately $44,000 for Marks' other needs. Unknown to Marks, the funds for Marks' loan were provided to Levine by FNNA pursuant to a Commercial Loan and Servicing Agreement between FNNA and Levine. The refinancing transaction closed and Marks received net proceeds of $44,394 at the closing; however, Morgan International/Levine failed to pay off the pre-existing mortgage owing to First American National Bank. For almost a year Marks was unaware that the pre-existing mortgage was not paid off for Levine secretly paid the monthly installments owing to First American. Once Levine ceased making the payments, First American initiated foreclosure proceedings against Marks. Marks paid the arrearage and maintained the mortgage with First American. Marks sued Levine and Morgan International. FNNA intervened as a party plaintiff against Levine and Marks. FNNA obtained a judgment based on contract against Levine but Levine was discharged in bankruptcy without any recovery to FNNA. Thereafter, FNNA obtained a judgment against Marks for $38,000, on the theory of unjust enrichment, plus pre-judgment interest. Marks appealed claiming he had a contractual relationship with FNNA that precluded a recovery under unjust enrichment. We affirm. http://www.tba.org/tba_files/TCA/fnna_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCA/fnna_dis.wpd TONYA PETRECE RAY v. WILLIAM MARTIN RAY v. STEPHEN ERIC STAGGS Court:TCA Attorneys: Clark Lee Shaw, Nashville, For Appellant, Stephen Eric Staggs Randle W. Hill, Jr., Nashville, For Appellee, Tonya Petrece Ray (Holland) John M. L. Brown, Nashville, For Appellee, William Martin Ray Judge: CRAWFORD First Paragraph: Natural father of minor twin children appeals trial court's final order of custody and visitation on multiple grounds, alleging primarily that (1) the trial court erred in awarding visitation to stepfather; (2) the trial court erred in refusing to change children's surname to that of their natural father; and (3) the trial court improperly based its opinion on a sealed psychological report. We affirm in part, reverse in part, and remand. http://www.tba.org/tba_files/TCA/raytonya.wpd FRANK CHESTER BRIGHT, JR. v. STATE OF TENNESSEE CORRECTED OPINION WITH ORDER Court:TCCA Attorneys: Peter T. Skeie, Nashville, Tennessee, for the Appellant, Frank Chester Bright. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, District Attorney General; and John C. Zimmerman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Davidson County jury convicted the Petitioner, Frank Chester Bright, Jr., of possession with intent to deliver over twenty-six grams of a substance containing cocaine, a Class B felony, and facilitation of possession of a deadly weapon, a Class A misdemeanor. The trial court sentenced the Petitioner as a career offender to thirty years in prison on the possession count and eleven months and twenty- nine days in prison on the facilitation count, with the sentences to run concurrently. On direct appeal, this Court affirmed the conviction, and the Tennessee Supreme Court denied the Petitioner's application for permission to appeal. The Petitioner then filed a petition seeking post-conviction relief in the trial court, which the court dismissed. On appeal, the Petitioner asserts that the post- conviction court erred when it dismissed his petition finding that there was no merit to his claims that: (1) he was denied effective assistance of counsel at his sentencing hearing; (2) the prosecutor committed prosecutorial misconduct at the sentencing hearing; and (3) the trial court's instructions to the jury violated his due process rights. Finding no error, we affirm the post-conviction court's dismissal of the petition. CORRECTED OPINION http://www.tba.org/tba_files/TCCA/brightfc.wpd ORDER http://www.tba.org/tba_files/TCCA/brightfc_ord.wpd HOWARD EUGENE BUCHANAN v. STATE OF TENNESSEE Court:TCCA Attorneys: J. Reese Holley, Dickson, Tennessee, for the appellant, Howard Eugene Buchanan. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Suzanne Lockert, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Howard Eugene Buchanan, was convicted by a jury in the Dickson County Circuit Court of aggravated kidnapping, assault, and evading arrest. He received a total effective sentence of eighteen years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that the trial court erred in failing to instruct the jury as to the defense of alibi and that he received the ineffective assistance of counsel. After a hearing, the post-conviction court denied the petition, and the petitioner appeals. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/buchananhe.wpd STATE OF TENNESSEE v. BOBBY R. DYER Court:TCCA Attorneys: Eugene Honea, Franklin, Tennessee, for the Appellant, Bobby R. Dyer. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Lee Dyer, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Bobby R. Dyer appeals from his Williamson County Circuit Court convictions of aggravated burglary and theft of property valued at $1,000 to $9,999. He claims that his theft conviction is not supported by sufficient evidence and that he was improperly sentenced. Because we are unconvinced of reversible error, we affirm. http://www.tba.org/tba_files/TCCA/dyerbobbyr.wpd STATE OF TENNESSEE v. JARRET A. GUY WITH ORDER Court:TCCA Attorneys: John G. Oliva, Nashville, Tennessee, for the appellant, Jarret A. Guy. Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney General; and Dan Hamm and Katrin Miller, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Jarret A. Guy, was convicted of facilitation of first degree premeditated murder, felony murder, and robbery. The trial court merged the facilitation of premeditated first degree murder conviction into the conviction for felony murder and, after finding the existence of five aggravating circumstances, the jury imposed a sentence of life without the possibility of parole. The trial court imposed a concurrent sentence of fifteen years for the robbery conviction. In this appeal, the defendant asserts that (1) the evidence is insufficient to support his convictions; (2) the trial court included erroneous definitions of "knowing" and "intentional" in its instructions to the jury; (3) the trial court erred by severing his trial from that of his co-defendant, Jacob Edward Campbell; (4) the sentence is excessive; and (5) the cumulative effect of the errors at trial require reversal. The judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/guyjarreta_opn.wpd ORDER http://www.tba.org/tba_files/TCCA/guyjarreta_ord.wpd STATE OF TENNESSEE v. SHAWN EDWARD HAZELTINE Court:TCCA Attorneys: Hayley E. Fults, Shelbyville, Tennessee (on appeal) and Andrew Hoover, Pulaski, Tennessee (at trial) for the appellant, Shawn Edward Hazeltine. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William Michael McCown, District Attorney General; Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Marshall County jury convicted the Defendant, Shawn Edward Hazeltine, of three counts of aggravated assault and three counts of reckless endangerment. The trial court merged the reckless endangerment convictions with the aggravated assault convictions and then sentenced the Defendant to an aggregate seven years and seven months in prison. On appeal, the Defendant contends that: (1) insufficient evidence exists to support the convictions; (2) the trial court erred in not consolidating the three counts of reckless endangerment; and (3) the trial court erred by not ordering alternative sentencing and by ordering consecutive sentencing. We conclude that sufficient evidence exists in the record to support the Defendant's convictions and that the trial court did not err in sentencing the Defendant. However, we conclude that the trial court erred by failing to consolidate the three reckless endangerment convictions into one conviction. We further conclude that the trial court erred by entering a judgment form for Count 2 showing a conviction for reckless aggravated assault, because the trial court dismissed Count 2 of the indictment. Therefore, we remand the case to the trial court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/hazeltinese.wpd STATE OF TENNESSEE v. JEFFERY LEE MASON WITH DISSENTING OPINION Court:TCCA Attorneys: Hershell D. Koger, Pulaski, Tennessee, for the appellant, Jeffery Lee Mason. Paul G. Summers, Attorney General & Reporter; Jennifer Bledsoe, Assistant Attorney General; and Patrick Butler and Beverly White, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Jeffery Lee Mason, was indicted for attempted first degree murder, felony escape and theft over $1000. He was convicted by a jury of attempted voluntary manslaughter and theft over $1000. He entered a plea of guilty to felony escape. The trial court imposed sentences of four years for attempted voluntary manslaughter, four years for theft over $1000, and two years for felony escape, to be served consecutively for an effective sentence of ten years. In this appeal of right, he asserts (1) that the evidence is insufficient to support the convictions for attempted voluntary manslaughter and theft over $1000; (2) that the trial court erred by instructing the jury on attempted voluntary manslaughter as a lesser included offense of attempted first degree murder; and (3) that the sentence is excessive. The judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/masonjefferyl_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/masonjefferyl_dis.wpd LEON TERRELL PHILLIPS v. STATE OF TENNESSEE Court:TCCA Attorneys: Hershell D. Koger, Pulaski, Tennessee, for the appellant, Leon Terrell Phillips. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael David Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Leon Terrell Phillips, pled guilty in the Bedford County Circuit Court to attempted first degree murder and received a sentence of thirty years incarceration in the Tennessee Department of Correction, which sentence was to be served at thirty percent. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel. The post-conviction court dismissed the petition, and the petitioner appeals. Finding no error, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/phillipslt.wpd STATE OF TENNESSEE v. TIMMY REAGAN Court:TCCA Attorneys: Larry M. Warner, Crossville, Tennessee, for the appellant, Timmy Reagan. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William Edward Gibson, District Attorney General; and Owen G. Burnett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Timmy Reagan, appeals as of right from his convictions by a jury in the Overton County Circuit Court for first degree, premeditated murder and first degree murder by placing or discharging a destructive device or bomb. The defendant was sentenced to life in prison for each conviction, and the trial court ordered that his sentences be merged. He contends that: (1) the evidence is insufficient to support the convictions; (2) the trial court erred by denying his motion to suppress pictures of the victim; (3) the trial court erred by denying his motion for a change of venue; (4) the trial court erred by denying his motion for the appointment of a jury selection expert; (5) the trial court erred by not using the jury questionnaire that he prepared; (6) the trial court erred by admitting the victim's statements as dying declarations; (7) the trial court erred by allowing Dr. Charles Harlan to testify about the location of the dynamite when it detonated; (8) the trial court erred by allowing Agent Richard Campbell to testify; (9) the trial court erred by admitting into evidence a weather report for the date of the explosion; (10) Tennessee Code Annotated S 39-13- 202(a)(3) is unconstitutional; (11) the judgments of conviction for premeditated murder and murder by the illegal placing of an explosive device should have been merged; and (12) the defendant is entitled to relief based on cumulative errors. We hold that the defendant's conviction for first degree murder should be affirmed. We also hold that in attempting to merge the first degree murder convictions, the trial court incorrectly entered two judgments of conviction instead of one that notes the merger of the counts. This case is remanded to correct the judgments. http://www.tba.org/tba_files/TCCA/reagantimmy.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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