Opinion Flash

July 26, 2004
Volume 10 — Number 142

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
03 New Opinion(s) from the Tennessee Court of Appeals
10 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


ALLEN G. BRADLEY v. JOHN ELDER

Court:TCA

Attorneys:                          

Allen Bradley, Nashville, Tennessee, pro se Appellant

William Barry Wood, Nashville, Tennessee for the Appellee

Judge: SWINEY

First Paragraph:

Allen G. Bradley ("Appellant") sued John Elder ("Appellee") on a
"Complaint for Judgment and Compensation for Breach of Contract" in
the Chancery Court of Davidson County.  Prior to Bradley's filing this
suit, Elder had sued Bradley in the Davidson County General Sessions
Court seeking to evict Bradley from the premises leased by Elder to
Bradley.  Elder was successful in the General Sessions Court suit. 
Bradley appealed that decision to the Davidson County Circuit Court. 
Elder amended his claim and was successful in the Circuit Court suit. 
The Chancery Court then granted Elder's Motion to Dismiss this suit on
the grounds of res judicata and collateral estoppel.  Bradley appeals.
 We affirm.

http://www.tba.org/tba_files/TCA/bradleya881.wpd

JOHN ELDER v. ALLEN G. BRADLEY

Court:TCA

Attorneys:                          

Allen G. Bradley, pro se Appellant

William Barry Wood, Nashville, Tennessee for Appellee

Judge: SWINEY

First Paragraph:

John Elder ("Appellee") filed a detainer warrant in the Davidson
County General Sessions Court seeking to evict Allen G. Bradley
("Appellant") from real property leased by Elder to Bradley.  The
General Sessions Court awarded possession of the premises to Elder. 
Bradley appealed the decision of the General Sessions Court to
Davidson County Circuit Court.  Elder amended his original action so
as to seek both possession of the premises and damages.  The Circuit
Court awarded judgment to Elder for possession of the premises and
$11,100 in damages.  Bradley appeals.  We affirm.

http://www.tba.org/tba_files/TCA/elderjohn631.wpd

JAMES R. MORRISSETT, JR. v. ROBBIE CLAIRE McKEE MORRISSETT

Court:TCA

Attorneys:                          

Teresa McCaig Marshall, Paris, Tennessee, for the appellant, James R.
Morrissett, Jr.

Robbie Claire McKee Morrissett, appellee, pro se.

Judge: KIRBY

First Paragraph:

This is a divorce case.  The parties were married in 1972.  In 2001,
the husband filed for divorce based on inappropriate marital conduct
and irreconcilable differences, and the wife counterclaimed for
divorce on the basis of inappropriate marital conduct.  After the
March 2002 trial, some of the parties' main assets were sold in
foreclosure.  In October 2002, the trial court granted a divorce to
the wife on the grounds that the husband had committed adultery.  The
divorce decree resolved all of the property issues between the
parties.  The trial court also found implicitly that the wife could
not be rehabilitated, based on a letter from the wife's physician, and
awarded alimony in futuro.  Two weeks later, the husband filed a
motion for reconsideration, based in part on the interim sale of some
of the parties' assets and the husband's consequent inability to
fulfill his obligations under the decree.  In April 2003, the trial
court denied the husband's motion to reconsider.  From that order, the
husband now appeals and challenges many of the trial court's rulings. 
We affirm the trial court's division of the marital property and its
allocation of the marital debts.  We find, however, that the letter
from the physician was inadmissible hearsay, and consequently reverse
the trial court's award of alimony in futuro and remand for an award
of rehabilitative alimony and for other proceedings.

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

TIMOTHY R. BOWLES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Tammy D. Wendt, Nashville, Tennessee, for the appellant, Timothy R.
Bowles.

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

Judge: SMITH

First Paragraph:

Following a jury trial, the petitioner was convicted on June 18, 1997
for especially aggravated burglary, aggravated rape, robbery,
aggravated burglary and attempted rape.  After a direct appeal to this
Court, his robbery conviction was reversed.  The Tennessee Supreme
Court affirmed this decision.  The petitioner then filed a Petition
for Post-Conviction Relief based upon allegations of ineffective
assistance of counsel with respect to his remaining convictions.  The
trial court denied this petition.  The petitioner now appeals the
trial court's decision.  We affirm the trial court.

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

MARCUS BROOKS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

J. Colin Morris, Jackson, Tennessee, for the appellant, Marcus Brooks.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The Petitioner, Marcus Brooks, 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/brooksmarcus.wpd

STATE OF TENNESSEE v. ROBERT L. CLARK, JR.

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; J. Scott McCluen, District Attorney
General; and Roger Delp, Assistant District Attorney General, for the
appellant, State of Tennessee.

Joe H. Walker, District Public Defender, and Walter B. Johnson, II,
Assistant Public Defender, for the appellee, Robert L. Clark, Jr.

Judge: WILLIAMS

First Paragraph:

The petitioner's judgment forms entered May 29, 1996, reflect that he
pled guilty to second degree murder, a Class A felony, committed on
November 18, 1994, and possession of cocaine greater than one-half
gram with intent to sell, a Class B felony, committed on October 3,
1994.  The trial court sentenced him to twenty-five years on the
murder conviction and twelve years on the cocaine conviction.  The
judgments ordered the sentences to be served concurrently to each
other but consecutively to sentences for other convictions listed on
the judgment forms.  The petitioner filed a petition for writ of
habeas corpus relief claiming that his sentences are void because they
are in direct contravention of statutory law requiring them to be
served consecutively rather than concurrently.  The trial court
granted habeas corpus relief, and the State appealed.  We hold that
the testimony presented by this petitioner was outside the record of
the underlying convictions and proceedings and therefore should not
have been considered by the trial court.  We reverse and remand this
case for a determination as to whether the record of the underlying
convictions and proceedings constitutes satisfactory proof that the
petitioner was on bail for the Class B cocaine offense when the second
degree murder was committed.

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

SHAUN GIVENS v. DAVID MILLS, WARDEN

Court:TCCA

Attorneys:                          

Shaun Givens, pro se.

Paul G. Summers, Attorney General & Reporter; Michael Markham,
Assistant Attorney General, for the appellee, State of  Tennessee.

Judge: HAYES

First Paragraph:

The Petitioner, Shaun Givens, 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.  After
review, we conclude that the Petitioner fails to assert a ground
entitling him to 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/givenshaun.wpd

FLOYD W. JENKINS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Floyd W. Jenkins, Petros, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; and Jerry N. Estes, District
Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Floyd W. Jenkins, appeals the Monroe County Criminal
Court's denial of his Motion for Probation.  The state contends that
the trial court properly denied the motion because the petitioner is
serving his sentences in the Department of Correction and the trial
court no longer has jurisdiction over him.  We agree with the state
and, pursuant to Rule 20, Tenn. Ct. Crim. App. R., affirm the judgment
of the trial court.

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

ERIC D. JONES v. DAVID MILLS, WARDEN

Court:TCCA

Attorneys:                          

Eric D. Jones, pro se.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General, for the appellee, State of  Tennessee.

Judge: RILEY

First Paragraph:

The Petitioner, Eric D. Jones, 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 fails to assert a ground entitling him to 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/joneseri.wpd

STATE OF TENNESSEE v. DENNIS CHRISTOPHER LOWERY

Court:TCCA

Attorneys:                          

Mark E. Stephens, District Public Defender, and Robert C. Edwards,
Assistant Public Defender, for the appellant, Dennis Christopher
Lowery.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; Zane M. Scarlett, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Dennis Christopher Lowery, appeals from the Knox County
Criminal Court's revoking his probation that he had received for his
convictions upon guilty pleas to theft and misdemeanor evading arrest.
 The defendant contends that the trial court abused its discretion by
revoking his probation and sentencing him to confinement.  We affirm
the judgment of the trial court.

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

HARRY M. NIMMONS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Harry M.
Nimmons.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Randall E. Nichols, District
Attorney General; and Marsha Mitchell, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Harry M. Nimmons, appeals the Knox County Criminal
Court's denial of his petition for post-conviction relief from his
guilty pleas to three counts of possessing with the intent to sell
less than one-half gram of cocaine and resulting effective
sixteen-year sentence.  He contends that he received the ineffective
assistance of counsel because he would have gone to trial if his
attorneys had explained evidentiary issues to him.  We affirm the
trial court.

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

MIKE SETTLE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Mike Settle, pro se.

Paul G. Summers, Attorney General & Reporter; Jennifer L.  Bledsoe,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Petitioner, Mike Settle, 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.   After
review, we conclude that thePetitioner has failed to establish a
ground for which post-conviction relief may be granted.  Accordingly,
the State's motion is granted and the judgment of the trial court is
affirmed.

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

STATE OF TENNESSEE v. TRAVIS LAMONT WILLIAMS

Court:TCCA

Attorneys:                          

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Travis
Lamont Williams.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Randall E. Nichols, District
Attorney General; and Marsha Mitchell, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Travis Lamont Williams, pled guilty in the Knox County
Criminal Court to attempted carjacking, a Class C felony; burglary of
a vehicle, a Class E felony; and felony vandalism, also a Class E
felony.  Pursuant to a plea agreement, the defendant received
consecutive sentences of six years for the attempted carjacking, two
years for the burglary, and one year for the vandalism, for an
effective nine-year sentence with the manner of service to be
determined by the trial court.  After a sentencing hearing, the trial
court denied the defendant's request for enhanced probation and
ordered that he serve his sentences in the Department of Correction. 
The defendant appeals, claiming that the trial court erred by
sentencing him to confinement.  We affirm the judgment of the trial
court.

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

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