Opinion FlashJuly 9, 2004
Volume 10 Number 131
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):
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Howard H. Vogel
ROBERT WILLIAM ARNDTS, BY CONSERVATOR, CAROL ZELIFF, DARRELL R. SMITH, v. VIOLET A. BONNER AND TOMMY L. RAINES Court:TCA Attorneys: Lyn Dechman, Chattanooga, Tennessee, for Appellant. B. Prince Miller, Jr., Cleveland, Tennessee, for Appellees. Judge: FRANKS First Paragraph: Action was filed by plaintiff's Conservator to recover assets transferred by his wife prior to her death. The Trial Judge awarded certain assets to plaintiff and plaintiff appealed. http://www.tba.org/tba_files/TCA/arndtsrw.wpd
BURTON v. FINE Court:TCA Attorneys: William Horton and Michael A. Anderson, Chattanooga, Tennessee, for the appellants, Elizabeth and Blake Burton. Alaric A. Henry and Matthew Hargraves, Chattanooga, Tennessee, for the appellees, Barth M. Fine and CNA Insurance Company Judge: CANTRELL First Paragraph: Mrs. Burton and Mr. Fine had an automobile accident. Both sides claimed the accident was caused by the other's fault. Mr. Fine settled his claim with Mrs. Burton's liability carrier and gave Mrs. Burton a general release. Mrs. Burton's claim proceeded to trial and she asserted that the release waived Mr. Fine's defense of comparative fault. The trial judge held that it did not and approved the jury's verdict assessing the greater fault to Mrs. Burton. We affirm. We also affirm the amount of discretionary costs awarded to Mr. Fine. http://www.tba.org/tba_files/TCA/burton.wpd
HOWARD LEVY AND SUZANNE LEVY v. JAMES C.D. AND RHONDA FRANKS, LINDSEY BUTLER AND TENNESSEE VALLEY HOMES, INC. CORRECTED OPINION Court:TCA Attorneys: Peter H. Curry, Nashville, for the appellants Howard Levy and Suzanne Levy. James D. Kay, Jr. and Mark S. Levan, Nashville, for the appellees James C.D. and Rhonda Franks. Judge: KIRBY First Paragraph: This case involves a dispute between neighbors. The plaintiffs owned a one-acre parcel of property in a rural setting almost completely surrounded by a sixteen-acre parcel of property owned by the defendants. The defendant larger landowners began building structures and storing equipment in an escalating commercial use of their property. The plaintiff small landowners complained to county officials that the defendants' use of their property constituted a zoning violation. The ensuing dispute between the two landowners was marked by the defendants engaging in threatening and intimidating behavior and the plaintiffs repeatedly complaining to authorities and incessantly documenting and videotaping the defendants' activities. Finally, the plaintiffs sued the defendants for, among other things, malicious harassment, outrageous conduct, civil conspiracy, and malicious prosecution. The trial court found in favor of the plaintiffs on the malicious prosecution claim but declined to award punitive damages. The trial court dismissed the remaining claims. The plaintiffs appeal. We affirm the dismissal of the plaintiffs' claims of malicious harassment and civil conspiracy. We reverse the dismissal of the plaintiffs' claim for outrageous conduct, finding that the defendants' behavior rose to the level of outrageous conduct, and remand for an award of damages on this claim. Finally, we reverse the denial of an award of punitive damages on the plaintiffs' malicious prosecution claim. CORRECTED OPINION http://www.tba.org/tba_files/TCA/levyhoward.wpd
MIKE WILSON, d/b/a M & M AUTO SALES v. SHANE CHAPMAN Court:TCA Attorneys: Edward Witt Chandler of Mountain Home, Arkansas, For Appellant, Shane Chapman Roger A. Stone of Memphis For Appellee, Mike Wilson, d/b/a M & M Auto Sales Judge: CRAWFORD First Paragraph: This case involves a question of whether a plaintiff who brings suit for a debt due him resulting from his agent's business activities has standing as a real party in interest. The trial court found that the agent was acting on behalf of his employer, that the plaintiff had standing to sue as a real party in interest, and granted judgment in favor of the plaintiff. Defendant appeals. We affirm. http://www.tba.org/tba_files/TCA/wilsonmike.wpd
JESSIE JAMES AUSTIN v. STATE OF TENNESSEE Court:TCCA Attorneys: Langdon S. Unger, Jr. Martin, Tennessee, for the appellant, Jessie James Austin. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Thomas A. Thomas, District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The petitioner was originally indicted for aggravated robbery and three counts of aggravated assault. After a jury trial, the petitioner was convicted of two counts of aggravated assault. He appealed his convictions to this Court. This Court affirmed the convictions. The petitioner then filed a Petition for Post-conviction Relief based upon ineffective assistance of counsel. After a hearing, the trial court denied the petitioner's petition. The petitioner appeals the trial court's decision to this Court on three issues: (1) trial counsel failed to call the petitioner's mother as a witness; (2) trial counsel failed to make an investigation of the crime scene, including the failure to take pictures; and (3) lead counsel was hired at 8:30 p.m. the night before trial, was not familiar with the case, and was not allowed a continuance by the trial court. We affirm the decision of the trial court. http://www.tba.org/tba_files/TCCA/austinjj.wpd
STATE OF TENNESSEE v. TIMOTHY ELLIS BALLARD Court:TCCA Attorneys: Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, Timothy Ellis Ballard. Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Timothy Ellis Ballard, was found to have violated the conditions of his probation by the General Sessions Court of Carroll County. The general sessions court partially revoked the Defendant's probation and ordered him to serve ninety days in jail. The Defendant appealed. After a hearing, the Carroll County Circuit Court agreed that the Defendant had violated the terms of his probation and remanded the case to the general sessions court for enforcement of the sentence. In this appeal, the Defendant argues that the circuit court erred by failing to conduct a de novo review of the sentence imposed by the general sessions court and that his sentence was the product of vindictive prosecution. Because the circuit court failed to address the sentencing options following probation revocation, we remand the case to the circuit court for that purpose. http://www.tba.org/tba_files/TCCA/ballardte.wpd
STATE OF TENNESSEE v. RICKY ALLEN FRAZIER Court:TCCA Attorneys: Cary C. Taylor, Kingsport, Tennessee, for the appellant, Ricky Allen Frazier. Paul G. Summers, Attorney General & Reporter; Michelle Chapman McIntire, Assistant Attorney General; and Joseph Eugene Perrin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Ricky Allen Frazier, entered pleas of guilt to possession of Oxycodone, a Class A misdemeanor; possession of more than one-half ounce of marijuana for resale, a Class E felony; manufacturing marijuana, a Class E felony; possession of drug paraphernalia, a Class A misdemeanor; possession of open title, a Class C misdemeanor; violation of the registration law, a Class C misdemeanor; speeding, a Class C misdemeanor; and maintaining a dwelling where a controlled substance is used or sold, a Class D felony. The trial court imposed an effective sentence of six years. As a part of the plea agreement, the defendant reserved a certified question of law under Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure. The single question presented for review is whether the search and seizure of the defendant and his vehicle violated the Fourth Amendment to the United States Constitution and Article 1, Section 7 of the Tennessee Constitution. The judgments are affirmed. http://www.tba.org/tba_files/TCCA/frazierra.wpd
STATE OF TENNESSEE v. J. D. JONES Court:TCCA Attorneys: James D. Estep, III, Tazewell, Tennessee; and Dirk A. Daniels, Rutledge, Tennessee, for the appellant, J. D. Jones. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William Paul Phillips, District Attorney General; Jared Effler, Assistant District Attorney General; and Todd Longmire, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Following a jury trial, Defendant, J. D. Jones, was convicted of attempted second degree murder, a Class B felony, and the unlawful possession of a weapon, a Class C misdemeanor. At the conclusion of Defendant's sentencing hearing, the trial court sentenced Defendant to ten years for the attempted second degree murder conviction and thirty days for the misdemeanor conviction. The trial court ordered Defendant's sentences to run concurrently. On appeal, Defendant argues (1) that the evidence was insufficient to support his convictions; (2) that the prosecution engaged in improper conduct during Defendant's cross-examination; (3) that the trial court erred in failing to order a gunshot residue test of the samples taken from Defendant's hands; (4) that the trial court erred in not considering Defendant's health as a mitigating factor in determining Defendant's sentence; and (5) that the trial court erred in its instruction to the jury on the mens rea element of the offense of attempted second degree murder. After a thorough review of the record in this case, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/jonesjd.wpd
STATE OF TENNESSEE v. KAWISHA PRICE Court:TCCA Attorneys: Periann S. Houghton, Assistant Public Defender, Trenton, Tennessee for the appellant, Kawisha Price. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Gary Brown, District Attorney General; and Elaine Gwinn Todd, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Kawisha Price, was indicted for aggravated child abuse. She entered a best-interest plea to aggravated assault with a sentence of eight years as a Range II multiple offender, with the trial court to determine the manner of service of the sentence. The trial court subsequently ordered her to serve the sentence in confinement. She appeals, arguing that the trial court decided the manner of service of the sentence before any proof was offered on her behalf and erred in ordering her to serve the sentence in confinement. For the following reasons, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/pricekaw.wpd
RHODNEY ROBERSON v. STATE OF TENNESSEE Court:TCCA Attorneys: J. Barney Witherington, IV, Covington, Tennessee, for the appellant, Rhodney Roberson. Michael E. Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; Garry G. Brown, District Attorney General; and Elaine Gwinn Todd, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Rhodney Roberson, appeals the Gibson County Circuit Court's denial of his petition for post-conviction relief from his conviction for first degree murder and resulting life sentence. The petitioner claims that he received the ineffective assistance of counsel because his attorney (1) failed to call an expert to testify; (2) failed to call other critical witnesses; (3) failed to request a severance from his codefendant wife at trial; and (4) used an unworkable trial strategy. We affirm the trial court's denial of the petition. http://www.tba.org/tba_files/TCCA/robersnh.wpd
STATE OF TENNESSEE v. ANTHONY TONY WOODS Court:TCCA Attorneys: Clifford K. McGown, Waverly, Tennessee, on appeal, and Rickey Griggs, Assistant Public Defender, Somerville, Tennessee, at trial and on appeal, for the appellant, Anthony Tony Woods.. Paul G. Summers, Attorney General & Reporter; Elizabeth Ryan, Assistant Attorney General; Elizabeth Rice, District Attorney General; and Joe Van Dyke, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Anthony Tony Woods, also known as Dogman, was found guilty by a jury of aggravated assault and aggravated criminal trespass charges. The trial court sentenced the appellant to six years on the aggravated assault charge and dismissed the aggravated criminal trespass charge. In this direct appeal, the appellant challenges the sufficiency of the evidence. For the following reasons, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCCA/woodsant.wpd
STATE OF TENNESSEE v. ROBERT JAMES YORECK, III CORRECTED OPINION Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Robert James Yoreck, III.. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: This case presents an appeal to this court after remand by order of the Tennessee Supreme Court. The Appellant, Robert James Yoreck, III, pled guilty to aggravated assault, a class C felony. Following a sentencing hearing, the trial court sentenced Yoreck, as a Range II multiple offender, to nine years in the Department of Correction. On appeal, Yoreck argues that his sentence was excessive. After a review of the record, we affirm the sentence as imposed by the Montgomery County Circuit Court CORRECTED OPINION http://www.tba.org/tba_files/TCCA/yoreckrobertj.wpd
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