Opinion FlashAugust 20, 2004
Volume 10 Number 161
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
TOM ALBERT, ET AL. v. PAT FRYE, ET AL. Court:TSC Attorneys: Randle W. Hill, Jr., Hermitage, Tennessee, and Joseph V. Ferrelli, Nashville, Tennessee, for the appellant, Vernon W. Frye. Joe M. Haynes, Goodlettsville, Tennessee, for the appellees, Tom Albert, Hazel Albert, and Alcar Associates, LLC. Judge: BARKER First Paragraph: The issue in this case is whether the defendant's notice of appeal was timely filed. The Court of Appeals held that it was not. We disagree. Under Tennessee Rule of Civil Procedure 59.04, the thirty-day time limit for filing a notice of appeal was tolled until the trial court issued its decision on the defendant's post-trial motion to alter or amend. Therefore, we reverse the decision of the Court of Appeals and remand the case to the Court of Appeals to consider the merits of the defendant's appeal. http://www.tba.org/tba_files/TSC/albertt.wpd
NATHAN E. BROOKS v. BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE Court:TSC Attorneys: Nathan E. Brooks, Chattanooga, Tennessee, Pro Se. James A. Vick, Nashville, Tennessee, for the appellee, Board of Professional Responsibility. Judge: BARKER First Paragraph: The issue in this case is whether the Chancery Court erred in upholding the grant of summary judgment to the Board of Professional Responsibility ("Board") on a petition for reinstatement filed by the appellant, Nathan E. Brooks ("Brooks"). On Brooks' petition for reinstatement to the practice of law, the hearing panel granted the Board's motion for summary judgment on grounds that Brooks failed to meet three conditions precedent for seeking reinstatement set forth in the suspension order and the conditional guilty plea on which the order was based: (1) failure to notify clients of his suspension as required by Supreme Court Rule 9, section 18; (2) failure to pay costs and expenses of the proceeding as required by Supreme Court Rule 9, section 24.3; and (3) failure to pay restitution. After thorough review of the law and the facts of this case, we hold that there was no error in the grant of summary judgment. Additionally, we have before us two motions - a motion to consider post-judgment facts and a motion to vacate. We grant in part the motion to consider post-judgment facts but deny the motion to vacate. http://www.tba.org/tba_files/TSC/brooksne.wpd
AMERICAN CHARIOT, ET AL. v. CITY OF MEMPHIS, TENNESSEE, ET AL. Court:TCA Attorneys: Dan M. Norwood, Memphis, Tennessee, for the appellants, American Chariot; Memphis Carriage; Inc.; Dancing Horse Carriages, Inc.; Uptown Carriage Tours; and Downtown Carriage Tours. Allan J. Wade and Lori Hackleman Patterson, Memphis, Tennessee, for the appellees, City of Memphis, Tennessee; the Memphis City Council; Willie Herenton, Mayor of the City of Memphis, Tennessee; Richard Merrill, City Traffic Engineer; and Walter Crews, Chief of Police. Judge: FARMER First Paragraph: Plaintiffs, horse-drawn carriage operators, filed a declaratory judgment action challenging the constitutionality of a provision of one section of an ordinance adopted by the Memphis City Council. The trial court elided the provision as an unlawful delegation of the City's police power and enforced the remainder of the ordinance. Plaintiffs appeal, asserting the trial court erred in its application of the doctrine of elision. Defendants cross-appeal, asserting the trial court erred by finding the elided portion unconstitutional. We affirm. http://www.tba.org/tba_files/TCA/achariot.wpd
CHARLES CONNER v. COMMISSIONER MICHAEL MAGILL, TENNESSEE DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, ET AL. Court:TCA Attorneys: Charles Conner, Germantown, TN, pro se Paul G. Summers, Attorney General & Reporter, Warren A. Jasper, Assistant Attorney General, Nashville, TN, for Appellee Michael Magill, Commissioner of the Tennessee Department of Labor and Workforce Development Lucian T. Pera, Brian S. Faughnan, Memphis, TN, for Appellee Memphis Publishing Company Judge: HIGHERS First Paragraph: This is an unemployment compensation case in which Appellant was denied benefits by the Tennessee Department of Labor and Workforce Development. At all administrative levels it was determined that Appellant was discharged for "misconduct connected with such claimant's work" and that he was, therefore, disqualified from receiving benefits under Tenn. Code Ann. S 50-7-303. This ruling was then affirmed by the lower court. Appellant then timely filed this appeal challenging the ruling of the lower court. For the following reasons, we affirm and remand for further proceedings. http://www.tba.org/tba_files/TCA/connercharl.wpd
MARY O. McINTOSH v. M. A. BLANTON, III, M.D., ET AL. Court:TCA Attorneys: Michael W. Whitaker, Covington, Tennessee and Charles Kelly, Dyersburg, Tennessee, for the Appellant, Mary O. McIntosh. Timothy G. Wehner and Craig P. Sanders, Jackson, Tennessee, for the appellee, M. A. Blanton, III, M.D. Judge: FARMER First Paragraph: Plaintiff appeals the award of summary judgment to defendant physician based on the statute of limitations for medical malpractice actions. We reverse and remand for further proceedings. http://www.tba.org/tba_files/TCA/mcintomo.wpd
STATE OF TENNESSEE v. DONALD WAYNE BOXX Court:TCCA Attorneys: Jeffrey Jones, Bartlett, Tennessee, for the appellant, Donald Wayne Boxx. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and Lee Coffee and Brooks Yelverton, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant entered a guilty plea to driving under the influence. The trial court imposed a sentence of eleven months and twenty-nine days to be served forty-eight hours of confinement followed by probation. As a part of the guilty plea, the defendant reserved for appeal the trial court's denial of his motion to suppress. See Tenn. R. Crim. P. 37(b)(2)(i). The judgment is affirmed. http://www.tba.org/tba_files/TCCA/boxxdw.wpd
MONROE BROWN v. STATE OF TENNESSEE Court:TCCA Attorneys: Joe H. Walker, District Public Defender, and Walter B. Johnson, II, Assistant Public Defender, for the appellant, Monroe Brown. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; J. Scott McCluen, District Attorney General; Roger Delp, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Monroe Brown, appeals the trial court's order denying 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 fails to establish either a void judgment or an expired sentence. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/brownmonroe.wpd
JAMES CLARK v. STATE OF TENNESSEE Court:TCCA Attorneys: James Clark, pro se. Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General; and Stephanie Zander Johnson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, James Clark, appeals the trial court's dismissal of his motion to correct an illegal sentence. Because the petitioner has no appeal as of right under Tennessee Rule of Appellate Procedure 3(b), the appeal is dismissed. http://www.tba.org/tba_files/TCCA/clarkja.wpd
STATE OF TENNESSEE v. JASON C. POLSTON Court:TCCA Attorneys: Robert Brannon (at trial and on appeal) and Timothy Francavella (at trial), Memphis, Tennessee, for the appellant, Jason C. Polston. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; Emily Campbell and Michael Davis, Assistant District Attorney Generals, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Shelby County jury convicted the Defendant, Jason C. Polston, of reckless aggravated assault. The trial court sentenced the Defendant to two years in the workhouse, suspended except for 60 days to serve on weekends, a $500.00 fine, and 200 hours of community service. On appeal, the Defendant contends that: (1) insufficient evidence exists to support his conviction; (2) the trial court erred by failing to suppress the Defendant's statement made in a telephone conversation with a police officer because the State did not disclose the statement prior to trial; (3) the trial court erred by instructing the jury on flight; (4) the trial court erred by failing to charge the defenses of necessity and duress; (5) the trial court erred by denying the Defendant's application for judicial diversion; and (6) the trial court erred by ordering the Defendant to serve sixty days in jail. We conclude that the trial court erred by failing to suppress the Defendant's telephone conversation with a police officer because the State did not disclose the statement to the Defendant prior to trial in violation of Tennessee Rule of Criminal Procedure 16. Therefore, we reverse the Defendant's conviction and remand for a new trial. http://www.tba.org/tba_files/TCCA/polstonjc.wpd
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