Opinion FlashJune 25, 2004Volume 10 — Number 122 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 CHATTANOOGA AGRICULTURAL ASSOCIATION v. WILLIAM F. SAPP, JOY G. SAPP, TRI-COUNTY EQUIPMENT, INC., DEERE AND COMPANY, GARY SEALS, d/b/a GARY SEALS LIVESTOCK AND CITIZENS TRI-COUNTY BANK Court:TCA Attorneys: Jerrold D. Farinash, and Shannon Guinade Scearce, Chattanooga, Tennessee, for Appellant. L. Thomas Austin and Jennifer Austin Mitchell, Dunlap, Tennessee, for Appellees. Judge: FRANKS First Paragraph: The Trial Court held defendant's purchase money security interest in cattle had priority over plaintiffs' prior security interest. On appeal, we affirm. http://www.tba.org/tba_files/TCA/chattag.wpd STATE OF TENNESSEE EX REL. LAURA FABRIZIO v. RICHARD R. CADMUS
Court:TCA
Attorneys:
Paul G. Summers, Attorney General and Reporter, and Warren Jasper,
Assistant Attorney General, Nashville, Tennessee, for the appellant,
State of Tennessee ex rel. Laura Fabrizio.
James M. Moore, Knoxville, Tennessee, for the appellee, Richard R.
Cadmus.
Judge: SUSANO
First Paragraph:
In 2001, the trial court entered an order ("the 2001 order") awarding
the State of Tennessee ex rel. Laura Fabrizio ("the State") a child
support arrearage of $9,785. Subsequently, the same court, by order
entered March 25, 2003, confirmed a referee's "Findings and
Recommendations" adding interest of $2,152.70 to the original award.
Richard R. Cadmus ("Father") seeks to go behind the 2001 order in an
attempt to invalidate it on a number of grounds. The State, on the
other hand, complains that the interest calculated by the referee and
approved by the trial court is incorrect. We find no basis in the
record submitted to us for disturbing the trial court's last order.
Accordingly, we affirm.
http://www.tba.org/tba_files/TCA/fabriziol.wpd
SCOTT GREER, D/B/A A-1 SEPTIC TANK v. GEORGE WILLIS, ET AL. Court:TCA Attorneys: Robert J. Notestine, III, Nashville, Tennessee, for the appellants, George Willis and AmSouth Bank. Robert Evans Lee and James M. Lea, Jr., Lebanon, Tennessee, for the appellee, Scott Greer d/b/a A-1 Septic Tank. Judge: KOCH First Paragraph: This appeal involves an action for breach of an oral contract to pump out a swimming pool. The Circuit Court for Wilson County conducted a bench trial and awarded the plaintiff a judgment against both the owner of the pool and the affiliate real estate broker who requested the work. We have concluded that the evidence does not support the judgment against the property owner but affirm the judgment against the broker. http://www.tba.org/tba_files/TCA/greerscott.wpd RALPH E. HARWELL, INTERIM CONSERVATOR OF THE PROPERTY, ESTATE, AND FINANCIAL AFFAIRS OF CAROLYN MITCHELL BROWN, v. JOHN H. WATSON, JR. Court:TCA Attorneys: Gerald L. Gulley, Jr., Knoxville, Tennessee, for Appellant, John H. Watson, Jr. Ralph E. Harwell, Knoxville, Tennessee, pro se. Judge: FRANKS First Paragraph: Conservator brought action to recover assets for the Estate of Carolyn Brown which had been given to defendant by Brown. The Chancellor invoked the constructive trust doctrine and ordered assets returned to the Estate. On appeal, we affirm. http://www.tba.org/tba_files/TCA/harwellralphe.wpd STEFAN OLARU v. STEVEN D. BROWN Court:TCA Attorneys: Stefan Olaru, Warren, Michigan, appellant, Pro Se. Steven D. Brown, Hixson, Tennessee, appellee, Pro Se. Judge: SUSANO First Paragraph: Stefan Olaru filed an action for malpractice against his former attorney, Steven D. Brown. The trial court dismissed the complaint based upon the defendant's plea of a discharge in bankruptcy. The plaintiff appeals. We affirm. http://www.tba.org/tba_files/TCA/olarus.wpd STATE OF TENNESSEE v. RANDY ANDERSON Court:TCCA Attorneys: W. Jeffery Fagan, Assistant District Public Defender, Camden, Tennessee, for the appellant, Randy Anderson. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Robert "Gus" Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Randy Anderson, pled guilty in the Henry County Circuit Court to manufacturing methamphetamine and was sentenced to three years, with 180 days to be served in confinement and the balance to be served in the community corrections program. The trial court ordered the sentence to be served concurrently with a previous sentence in Madison County. The trial court subsequently revoked the appellant's community corrections sentence and resentenced the appellant to four years in the Tennessee Department of Correction, to be served consecutively to sentences imposed in Weakley and Dyer Counties. On appeal, the appellant challenges the imposition of consecutive sentencing. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/andersr.wpd STATE OF TENNESSEE v. CHRISTOPHER A. DAVIS Court:TCCA Attorneys: Hershell Koger, for the appellant, Christopher A. Davis. Paul G. Summers, Attorney General & Reporter; Elizabeth Bingham Marney, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Petitioner, Christopher A. Davis, appeals the trial court's denial of his petition for writ of error coram nobis. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner failed to file his petition within the applicable statute of limitations, failed to assert a claim that is cognizable in a petition for writ of error coram nobis, and the statute of limitations should not be tolled. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/davischristopher.wpd JAMES EDWARD DICKEN v. STATE OF TENNESSEE Court:TCCA Attorneys: Louis W. Oliver, III, Hendersonville, Tennessee, for the appellant, James Edward Dicken. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and Sallie Wade Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, James Edward Dicken, appeals the denial of his petition for post-conviction relief. He contends that he was denied the effective assistance of counsel. The judgment of the post- conviction court is affirmed. http://www.tba.org/tba_files/TCCA/dickenjamese.wpd STATE OF TENNESSEE v. DARYL EUGENE FORTNER Court:TCCA Attorneys: Jack A. Butler, Nashville, Tennessee, for the appellant, Daryl Eugene Fortner. Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Daniel Brollier, Jr., Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Following a jury trial, the defendant was convicted of two counts of attempted first degree murder, Class A felonies. He was also convicted of one count of aggravated burglary, a Class C felony. The defendant contends on appeal that (1) the evidence was insufficient to establish the requisite intent required for committing first degree murder, (2) the trial court erred in instructing the jury on diminished capacity, and (3) the sentence was excessive. Finding no reversible error, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/fortnerde.wpd STATE OF TENNESSEE v. STEVEN GASS Court:TCCA Attorneys: Jerry Scott, Murfreesboro, Tennessee, for the appellant, Steven Gass. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Senior Counsel; William C. Whitesell, Jr., District Attorney General; and Paul Holcombe, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Steven Gass, was convicted by a jury in the Rutherford County Circuit Court of rape of a child, aggravated sexual battery, and attempted rape of a child. The petitioner received a total effective sentence of thirty-two years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post-conviction relief, citing several instances of ineffective assistance of counsel. After a hearing, the post-conviction court denied the petition, and the petitioner timely appealed. 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/gasss.wpd STATE OF TENNESSEE v. ANTHONY CHARLES HENDERSON Court:TCCA Attorneys: David Brady, District Public Defender; and John B. Nisbet, III, Assistant District Public Defender, for the Appellant, Anthony Charles Henderson. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; William E. Gibson, District Attorney General; John Moore, Assistant District Attorney General; and William Locke, Assistant District Attorney General, for the Appellee, the State of Tennessee. Judge: WOODALL First Paragraph: On August 1, 2001, Defendant, Anthony Charles Henderson, entered guilty pleas to two counts of sale of cocaine in an amount less than .5 grams, a Class C felony. See Tenn. Code Ann. S 39-17- 417. Defendant received concurrent sentences of five years for his convictions with ninety days to be served in confinement and the remainder to be served on supervised probation. Defendant was also ordered to pay $2,000 in fines. On July 24, 2002, a violation of probation warrant was issued. Following an evidentiary hearing, the trial court found that Defendant violated the conditions of his probation and ordered Defendant to serve his original sentences in confinement. Defendant appeals the trial court's revocation of probation, arguing that there was no substantial evidence to support the revocation. Defendant also argues that the sentences imposed following the revocation were excessive. After reviewing the record on appeal, we conclude that the trial court did not abuse its discretion in revoking Defendant's probation and ordering Defendant to serve his original sentences in confinement. http://www.tba.org/tba_files/TCCA/hendersonanthony.wpd DAMIEN M. JACKSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Eric S. Carter, Nashville, Tennessee, for the appellant, Damien M. Jackson. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner appeals from his denial of post-conviction relief. He alleges ineffective counsel and error by the post-conviction judge. After careful review, we conclude that the petitioner failed to prove ineffective counsel. Accordingly, we affirm the denial of relief. http://www.tba.org/tba_files/TCCA/jacksondm.wpd STATE OF TENNESSEE v. CARL E. LEGGETT, SR. WITH DISSENTING OPINION Court:TCCA Attorneys: Glen A. Isbell, Winchester, Tennessee, for the appellant, Carl E. Leggett, Sr. Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; J. Michael Taylor, District Attorney General; Steven M. Blount, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Carl E. Leggett, Sr., was indicted by the Franklin County Grand Jury for possession of .5 grams or more of cocaine with the intent to sell or deliver. Following a jury trial, the Defendant was convicted of facilitation of possession with intent to sell over .5 grams of cocaine. The Defendant was sentenced as a Range II multiple offender to serve nine years in confinement and ordered to pay a $70,000 fine. In this appeal as of right, the Defendant challenges the sufficiency of the convicting evidence. The Defendant also challenges his sentence. After a careful review of the record, we reverse the judgment of the trial court on sufficiency grounds and dismiss the charges against the Defendant. http://www.tba.org/tba_files/TCCA/leggettce_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/leggettce_dis.wpd STATE OF TENNESSEE v. STEVEN A. MEYER Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee (on appeal); Steven A. Meyer, Pro Se, and Edward DeWerff, Clarksville, Tennessee (at trial), for the appellant, Steven A. Meyer. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Helen O. Young, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: At his first trial, the defendant, Steven A. Meyer, was convicted of first degree murder and the trial court, sua sponte, overturned the jury verdict, concluding that it was against the weight of the evidence. At the second trial, the jury again found the defendant guilty of first degree premeditated murder, and he was sentenced to life imprisonment. On appeal, he argues that the evidence was insufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/meyerstevena.wpd STATE OF TENNESSEE v. ERIC C. PENDLETON ORDER Court:TCCA Judge: PER CURIAM First Paragraph: In this case, the petitioner has filed a timely petition to rehear. After having fully reviewed the petition, it is respectfully denied. ORDER http://www.tba.org/tba_files/TCCA/pendletonec_ord.wpd TERRY L. SHROPSHIRE, PRO SE v. STATE OF TENNESSEE Court:TCCA Attorneys: Terry Shropshire, pro se. Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner, Terry Shropshire, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to establish by a preponderance of the evidence that his conviction is void or his term of imprisonment has expired. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/shropshireterry.wpd JOHN W. SMITH v. STATE OF TENNESSEE Court:TCCA Attorneys: Ronald E. Munkeboe, Jr., Attorney, for the appellant, John W. Smith. Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, John W. Smith, appeals the denial of his petition for post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/smithjohw.wpd STATE OF TENNESSEE v. JOSEPH CHI-CHOI WONG Court:TCCA Attorneys: J. Todd Faulkner, Nashville, Tennessee, for the appellant, Joseph Chi-Choi Wong. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Tammy Meade, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Joseph Chi-Choi Wong, was convicted by a jury on three counts of promoting prostitution and three counts of money laundering. As a result, he was sentenced to an effective sentence of twenty-four (24) years. In this direct appeal, the appellant challenges: (1) the trial court's decision to admit certain evidence that was found in the appellant's apartment; (2) the trial court's failure to dismiss the indictment due to the asserted unconstitutionality of the Tennessee prostitution and money laundering statutes; (3) the trial court's failure to sever the prostitution counts from the money laundering counts; (4) the trial court's failure to suppress the evidence procured from the appellant's apartment as a result of the search warrant; (5) the trial court's imposition of an excessive sentence; and (6) the trial court's failure to mitigate the appellant's sentence. After a thorough review of the record, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/wongchi.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! 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