Opinion FlashJuly 19, 2004Volume 10 — Number 137 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 SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0719.wpd SHERRY PEARSON As Next of Kin of Addie Pearson, Deceased v. VENCOR NURSING CENTER LIMITED PARTNERSHIP, ET AL. Court:TCA Attorneys: Jerry D. Kizer, Jr. and Patrick W. Rogers of Memphis for Appellant, Jackson-Madison County General Hospital District Christopher L. Taylor of Memphis for Appellee, Sherry Pearson as next of kin of Addie Pearson, deceased Judge: CRAWFORD First Paragraph: Plaintiff sued defendant nursing home located in Carroll County for damages for the injuries and death of plaintiff's decedent while a patient in the nursing home. Defendant-nursing home, in its answer, alleged comparative fault on the part of Jackson-Madison County General Hospital, a governmental entity. Plaintiff amended her complaint to allege fault on the part of the hospital. The hospital then filed a motion to dismiss for improper venue which was denied by the trial court. The case is before this Court on a Rule 9 Interlocutory Appeal. We reverse and remand. http://www.tba.org/tba_files/TCA/pearsonshe.wpd THE REALTY STORE, INC., ET AL v. TARL PARTNERSHIP, L.P., ET AL Court:TCA Attorneys: D. Scott Hurley, Knoxville, Tennessee, for Appellants. Boyd W. Venable, III, Sevierville, Tennessee, for Appellee, The Realty Store, Inc., and Judy Jones. Judge: FRANKS First Paragraph: The Trial Court awarded plaintiffs commission for lease of real estate pursuant to Agreement between the parties. Defendants appealed - we affirm. http://www.tba.org/tba_files/TCA/realtystore.wpd GARY L. WEST, ET AL. v. EAST TENNESSEE PIONEER OIL CO., d/b/a EXXON
CONVENIENCE STORE
Court:TCA
Attorneys:
Gregory F. Coleman and Michael A. Myers, Knoxville, Tennessee, for the
Appellants Gary L. West and Michell B. Richardson.
Clint J. Woodfin and Gary T. Dupler, Knoxville, Tennessee, for the
Appellee East Tennessee Pioneer Oil Co., d/b/a Exxon Convenience
Store.
Judge: SWINEY
First Paragraph:
Gary L. West and Michell B. Richardson ("Plaintiffs") sued East
Tennessee Pioneer Oil Co., d/b/a Exxon Convenience Store ("Defendant")
asserting claims based on negligence, negligent entrustment, and
negligence per se. Plaintiffs allege that Brian Lee Tarver ("Tarver")
was visibly intoxicated when he stopped at Defendant's store to
purchase beer and gasoline. Pursuant to company policy, Defendant's
employees refused to sell Tarver beer because he was intoxicated, but
did sell him $3.00 of gasoline. One or more of Defendant's employee
then assisted Tarver with operating the gasoline pump. Shortly after
leaving Defendant's store, Tarver was involved in an automobile
accident resulting in serious personal injuries to Plaintiffs.
Plaintiffs offered expert proof that had Tarver not obtained the $3.00
worth of additional gasoline, he would have run out of gas before
reaching the accident site. The Trial Court granted Defendant's
motion for summary judgment on all three of Plaintiffs' claims. We
affirm the grant of summary judgment on Plaintiffs' claims for
negligent entrustment and negligence per se. We reverse the grant of
summary judgment on Plaintiffs' negligence claim.
http://www.tba.org/tba_files/TCA/westgaryl.wpd
STATE OF TENNESSEE v. TERRY LYNN BYINGTON Court:TCCA Attorneys: George Todd East, Kingsport, Tennessee, for the appellant, Terry Lynn Byington. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and William B. Harper, II, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Terry Lynn Byington, was convicted of DUI, fourth offense, and sentenced as a Range II, multiple offender to three years in the Department of Correction, with 150 days to be served day-for-day. On appeal, the defendant argues that (1) the evidence was insufficient to support his conviction; (2) his sentence is excessive; (3) the trial court erred in allowing the State to introduce evidence of a prior conviction which was more than ten years old; and (4) the trial judge erred in not recusing herself. After review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/byingtonterryl.wpd CHRISTOPHER L. DETHROW v. STATE OF TENNESSEE Court:TCCA Attorneys: J. Colin Morris, Jackson, Tennessee, for the appellant, Christopher L. Dethrow. Paul G. Summers, Attorney General & Reporter; Kathy Denise Aslinger, Assistant Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The Petitioner, Christopher L. Dethrow, appeals the trial court's denial of his petition for post- conviction 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. A review of the record supports the State's position. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/dethrowcl.wpd STATE OF TENNESSEE v. JOE W. FRANCE Court:TCCA Attorneys: Edward C. Miller, Public Defender (on appeal), and Susanne Bales, Assistant Public Defender (at trial), for the appellant, Joe W. France. Paul G. Summers, Attorney General & Reporter; Elizabeth Ryan, Senior Counsel; and Charles L. Murphy, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Joe W. France, pled guilty to the sale of cocaine in excess of .5 grams. A Range II, 12-year sentence was imposed but the defendant was granted probation supervised under a Community Corrections program after a term in jail. After the issuance of a revocation warrant, the defendant agreed to an increase of the sentence to 20 years in exchange for continued probation supervised by the Community Corrections program. Later, the defendant violated the terms of the agreement and was ordered to serve the 20-year sentence. In this appeal, the defendant complains that even though he entered into the sentence modification by agreement, he was entitled to a hearing before the sentence was increased. The judgment of the trial court is reversed. Because both the original plea agreement and the amended agreement provided for illegal sentences, the conviction must be set aside and the cause remanded for trial. http://www.tba.org/tba_files/TCCA/francejw.wpd THOMAS EUGENE HARGIS v. STATE OF TENNESSEE Court:TCCA Attorneys: Thomas Eugene Hargis, Pikeville, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; James Michael Taylor, District Attorney General; James W. Pope, III, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner, Thomas Eugene Hargis, appeals the trial court's dismissal of his petition for writ of habeas corpus. 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 petition presents no cognizable claim for habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/hargiste.wpd STATE OF TENNESSEE v. TAMMY KINCANNON Court:TCCA Attorneys: Charles B. Hill, II, Kingston, Tennessee, for the appellant, Tammy Kincannon. Paul G. Summers, Attorney General and Reporter; Michelle R. Chapman, Assistant Attorney General; J. Scott McCluen, District Attorney General; and D. Roger Delp and Frank A. Harvey, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: Following a jury trial, the defendant, Tammy Kincannon, was convicted of aggravated sexual battery, a Class B felony, and sentenced as a violent offender to eight years in the Tennessee Department of Correction. On appeal, she argues that the evidence was insufficient to support her conviction and that the trial court erred in not requiring the State to make an election of the offenses and in not instructing the jury as to the lesser-included offenses of aggravated sexual battery. Following our review, we agree that the State failed to make an election and reverse the judgment of the trial court. http://www.tba.org/tba_files/TCCA/kincannontammy.wpd BRYAN PEARSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Bryan Pearson, Pikeville, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Bryan Pearson, appeals the trial court's dismissal of his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Tenn. Ct. Crim. App. R. The petitioner has not established that the challenged judgment is void or that his sentence has expired. Accordingly, the motion for summary affirmance is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/pearsonbryan.wpd STATE OF TENNESSEE v. MICHAEL WAYNE POE Court:TCCA Attorneys: Ardena J. Garth, District Public Defender; and Donna Robinson Miller (on appeal), Karla Gothard (at trial), and William Dobson (at trial), Assistant District Public Defenders, for the appellant, Michael Wayne Poe. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and Yolanda Mitchell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: Indicted for aggravated child abuse, the defendant, Michael Wayne Poe, was convicted by a jury of child abuse, a Class D felony. The trial court sentenced the defendant to four years, with all but 11 months, 29 days suspended. In this appeal of right, the defendant argues that the evidence was insufficient, that the sentence was excessive, and that the trial court erred by denying full probation. The sentence is modified to three years; otherwise, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/poemichael.wpd STATE OF TENNESSEE v. JULIUS E. SMITH Court:TCCA Attorneys: Ardena J. Garth, District Public Defender, and Donna Robinson Miller, Assistant District Public Defender, for the appellant, Julius E. Smith. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; and Parke Masterson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Julius E. Smith, entered pleas of guilty to two counts of driving under the influence, third offense, and four counts of vehicular assault. As to the first driving under the influence offense, the trial court imposed a sentence of eleven months and twenty-nine days, to be suspended to probation after the service of 120 days of confinement. The second was merged into the convictions for vehicular assault. The trial court imposed consecutive sentences of three years for each vehicular assault conviction. The sentences were ordered to be served consecutively to the sentence for driving under the influence, third offense. The effective sentence is, therefore, twelve years, eleven months, and twenty-nine days. In this appeal, the defendant asserts that the effective sentence for the vehicular assault convictions is excessive. It is our judgment that the misapplication of an enhancement factor to three of the four vehicular assault convictions warrants a reduction to two years for each of those crimes. Otherwise, the judgments of the trial court, including the imposition of consecutive terms, are affirmed. http://www.tba.org/tba_files/TCCA/smithjulius.wpd STATE OF TENNESSEE v. ALEX DEWAYNE WELLS Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee (on appeal), Gary F. Antrician, Somerville, Tennessee (on appeal), and Shana McCoy-Johnson, Somerville, Tennessee (on appeal and at trial), for the appellant, Alex Dewayne Wells. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Senior Counsel; Elizabeth T. Rice, District Attorney General; and Terry Dycus, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Alex Dewayne Wells, pled guilty in the Fayette County Circuit Court to numerous counts of aggravated burglary, burglary, and theft. He received a total effective sentence of thirty years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court's imposition of consecutive sentencing. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/wellsalexd.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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