Opinion FlashSeptember 22, 2004Volume 10 — Number 183 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 ROGER L. HICKMAN v. STATE OF TENNESSEE Court:TSC Attorneys: Douglas A. Trant, Knoxville, Tennessee, for the appellant, Roger L. Hickman Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Gordon W. Smith, Associate Solicitor General; Randall E. Nichols, District Attorney General; and Zane M. Scarlett, Assistant District Attorney General, for the appellee, State of Tennessee Judge: DROWOTA First Paragraph: We granted Roger L. Hickman permission to appeal to consider whether the trial court and Court of Criminal Appeals erred in dismissing his habeas corpus petition. Hickman's petition, prepared with the aid of counsel, alleged that his 1986 misdemeanor conviction, for which he received a ten- day suspended sentence, is void because the judgment does not affirmatively indicate that Hickman was represented by counsel or that he waived his right to counsel. We hold that the trial court and Court of Criminal Appeals properly dismissed the petition. The petition failed to comply with the prescribed statutory form, failed to allege that Hickman is "imprisoned or restrained of his liberty," as required by Tennessee Code Annotated section 29-21-101 (2000), and failed to allege grounds for habeas corpus relief. Accordingly, we affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/hickmanrogerl.wpd CHARLES W. AYRHART, ET AL., v. DEWEL B. SCRUGGS, ET AL. Court:TCA Attorneys: Gary A. Brewer, Paul A. Fassbender, Nashville, Tennessee, for the appellants, Dewel B. Scruggs, and Connie Scruggs. Bruce N. Oldham, Gallatin, Tennessee, for the appellees, Charles W. Ayrhart and wife, Carrie Ayrhart. Judge: COTTRELL First Paragraph: This is an interlocutory appeal of the trial court's refusal to grant a summary judgment to the defendants in a negligence case. We find that the defendants have not affirmatively negated an element of this negligence claim and that reasonable minds could differ on the allocation of fault between the parties. Consequently, the defendant is not entitled to judgment as a matter of law. We therefore agree with the trial court and affirm the denial of summary judgment. http://www.tba.org/tba_files/TCA/ayrhartcharlesw.wpd STATE OF TENNESSEE, ex rel, PAUL G. SUMMERS, in his official capacity as the Attorney General and Reporter of Tennessee, and MILTON H. HAMILTON, JR., in his official capacity as the Commissioner of the Tennessee Department of Environment and Conservation, v. B&H INVESTMENTS, INC., CHARLES R. SMITH and ALVIN G. PIERCE Court:TCA Attorneys: Frank J. Scanlon, Nashville, Tennessee, for Appellant. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Elizabeth P. McCarter, Senior Counsel, Office of the Attorney General, Nashville, Tennessee, for Appellees. Judge: FRANKS First Paragraph: The Trial Court held purchaser of land responsible for prior owner's violations of the Tennessee Water Quality Control Act. On appeal, we reverse in part, vacate in part and remand. http://www.tba.org/tba_files/TCA/bhinv.wpd CARL SHOCKLEY, ET AL. v. JOSEPH F. CROSBY, ET AL. Court:TCA Attorneys: Michael P. Mills and Aaron J. Conklin, Nashville, Tennessee, for the appellant, Carl Shockley, d/b/a Shockley-Conner Logging and Shockley Logging. Thomas A. Greer, Jr., Dunlap, Tennessee and J. Hilton Conger, Smithville, Tennessee, for the appellees, Joseph F. Crosby and Opal M. Crosby. Judge: CAIN First Paragraph: This appeal arises from a claim filed in Van Buren County Circuit Court alleging breach of contract, outrageous conduct, and assault. At the close of the plaintiff's proof, the trial court granted the defendants' motion for a directed verdict on the outrageous conduct claim. At the close of all the proof, the trial court granted the plaintiff's motion for a directed verdict on the breach of contract claim, and the parties then stipulated that the assault had occurred. The case went to the jury for consideration of the damages resulting from the breach and the assault. The jury returned a verdict of $57,500 for the breach of contract and specifically found that the assault did not cause injury to Carl Shockley for which compensatory damages should be awarded. Nonetheless the jury did find that Joseph Crosby acted in such a way that punitive damages should be awarded. The trial court refused to submit the punitive damages issue to the jury and granted a remittitur of $7,500 on the contract claim. Both parties appeal. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/shockleycarl.wpd STATE OF TENNESSEE v. MICHAEL N. ALLEN, a.k.a. MICHAEL B. CARTA IN RE: SANFORD AND SONS BAIL BONDS, INC. Court:TCCA Attorneys: Charles G. Currier, Knoxville, Tennessee, for the appellant, Michael N. Allen, a.k.a. Michael B. Carta, In re: Sanford and Sons Bail Bonds, Inc. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; and Joe C. Crumley, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Sanford and Sons Bail Bonds, Inc., the appellant, appeals from the trial court's denial of relief from final forfeiture of its bond. At the hearing set to determine whether final forfeiture of the bond should occur, the appellant did not appear and the trial court entered a judgment against the appellant declaring final forfeiture. The appellant then sought relief from the final forfeiture judgment, pursuant to Rule 60.02 of the Rules of Civil Procedure, Tennessee Code Annotated section 40-11- 201(b), and sought a stay of execution of the judgment. Because the notice of appeal was not timely filed in this matter, we are without jurisdiction to determine whether the trial court erred in entering a final forfeiture against the appellant based upon its claim under Tennessee Code Annotated section 40-11-201(b). We further conclude that the trial court did not abuse its discretion in refusing to grant a stay of execution or relief under Rule 60.02 of the Tennessee Rules of Civil Procedure. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/allenmichn.wpd STATE OF TENNESSEE v. SEAN ANTHONY Court:TCCA Attorneys: Ross A. Sampson, Memphis, Tennessee, for the appellant Sean Anthony. Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney General; William L. Gibbons, District Attorney General; Glen Baity, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Sean Anthony, was tried and convicted of four counts of aggravated robbery. On appeal he contends that: (1) the trial court improperly refused to accept his guilty plea; (2) the trial court should have suppressed his statement to police; and (3) the evidence is insufficient to sustain his convictions. Finding no error, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/anthonysean.wpd STATE OF TENNESSEE v. JOHN MARK BURNS Court:TCCA Attorneys: Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, John Mark Burns. Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: While initially indicted on three counts of attempted first degree murder, the defendant, John Mark Burns, was convicted on three counts of attempted second degree murder. The trial court imposed sentences of eleven years for each offense, all of which are to be served concurrently. In this appeal of right, the defendant challenges the sufficiency of the evidence, he argues that the trial court erred in several of its instructions to the jury, and he contends that the sentence is excessive. Because the trial court erred in its application of certain enhancement factors, the defendant's sentences are modified to three concurrent nine-year terms. Otherwise, the judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/burnsjohn.wpd STATE OF TENNESSEE v. TONY HARP Court:TCCA Attorneys: J. Thomas Caldwell, Ripley, Tennessee, for the Appellant, Tony Harp. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Tony Harp, was convicted in the Lauderdale County Circuit Court of one count of theft of property valued between $ 1,000 and $ 10,000, a class D felony. Following a sentencing hearing, the trial court imposed a thirty-month community corrections sentence, with service of ninety days in the county jail. On appeal, Harp asserts that: (1) the evidence is insufficient to sustain the conviction and (2) the trial court erred in denying him full probation. After review of the record, we find no error and affirm the judgment of conviction and resulting sentence. http://www.tba.org/tba_files/TCCA/harptony.wpd STATE OF TENNESSEE v. TONY O. JOHNSON Court:TCCA Attorneys: Garland Ergueden and Robert Wilson Jones, Memphis, Tennessee (on appeal); and William Yonkowski and Timothy Albers, Memphis, Tennessee (at trial), for the appellant, Tony O. Johnson. Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; William L. Gibbons, District Attorney General; and Reginald Henderson and Scott Bearup, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Tony O. Johnson, was convicted by a jury in the Shelby County Criminal Court of second degree murder. Following the appellant's conviction, the trial court imposed a sentence of twenty-five years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting his conviction and the trial court's application of certain enhancement factors. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/johnsontonyo.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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