Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts and the TN Attorney General.
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MARCUS ALLEN, v CHRISTINE BRADLEY, COMMISSIONER, DEPARTMENT OF CORRECTION, Court:TCA Charles W. Burson, Attorney General and Reporter, Counsel for State Marcus Allen, Pro Se First Paragraph: This appeal involves an inmate's allegations that his release eligibility date was improperly calculated by the Tennessee Department of Correction. Plaintiff-Appellant, Marcus Allen ("Allen"), petitioned the chancery court for a declaratory judgment seeking, inter alia, a new calculation of his parole and release eligibility dates. URL:http://www.tba.org/tba_files/TCA/ALLENMAR.OPN.WP6 MARY POOR AYERS, v. JAMES OLIVER AYERS, Court:TCA Mark A. Rassas RASSAS & RASSAS Clarksville, TN ATTORNEY FOR PLAINTIFF/APPELLEE William L. Harbison SHERRARD & ROE, P.L.C. Nashville, TN ATTORNEY FOR DEFENDANT/APPELLANT First Paragraph: This is a divorce case in which the principal bone of contention is the division of marital property, but the unusual procedure in the Trial Court must also be reviewed. URL:http://www.tba.org/tba_files/TCA/AYERSMP.OPN.WP6 STATE OF TENNESSEE, EX REL FIRST AMERICAN NATIONAL BANK and DOUBLE M PARTNERS, v. CITY OF FRANKLIN MUNICIPAL PLANNING COMMISSION, Court:TCA Michael L. Dagley Farris, Warfield & Kanady Nashville, TN ATTORNEY FOR PLAINTIFF/APPELLANT Douglas Berry Weed, Hubbard, Berry & Doughty Nashville, TN ATTORNEY FOR DEFENDANT/APPELLEE First Paragraph: This is an appeal taken from the trial court's refusal to issue a writ of mandamus to the Appellee City of Franklin Municipal Planning Commission ("FMPC") to conduct a hearing and rule on the application of the Appellants-Relators First American National Bank ("First American") and Double M Partners ("Double M") for issuance of a site permit to build a convenience storage facility at an intersection in Franklin, Tennessee, and dismissing the complaint for mandamus and for declaration that City of Franklin zoning ordinance 94-16 was invalid. URL:http://www.tba.org/tba_files/TCA/BANK.CTA.WP6 FIRST TENNESSEE BANK NATIONAL ASSOCIATION, v. THOROUGHBRED MOTOR CARS, INC., Court:TCA JOHN S. HICKS and KATHERINE A. BROWN, Baker, Donelson, Bearman & Caldwell, Nashville, Attorneys for Plaintiff/Appellee ROBERT E. BOSTON and DAVID E. LEMKE, Waller, Lansden, Dortch & Davis, Nashville, Attorneys for Defendant/Appellee First Paragraph: First Tennessee Bank National Association (plaintiff) filed suit in the Chancery Court of Davidson County against Thoroughbred Motor Cars, Inc. (defendant) seeking to recover damages incurred as a result of defendants alleged breach of an asset purchase agreement to which it claimed to be a third party beneficiary. Defendant filed a motion to dismiss pursuant to T.R.C.P. 9.01 and 12.02(6), contending that plaintiffs complaint failed to state a claim upon which relief could be granted because it was not a party or an intended beneficiary of the asset purchase agreement and therefore lacked standing to sue under the agreement. URL:http://www.tba.org/tba_files/TCA/FIRSTTBK.OPN.WP6 JANET K. FLORENCE, v. DAVID G. FLORENCE, Court:TCA H. Thomas Parsons, PARSONS, NICHOLS & JOHNSON, Manchester, Tennessee Attorney for Plaintiff/Appellant. Albert F. Moore, NEAL & HARWELL, Nashville, Tennessee Attorney for Defendant/Appellee. First Paragraph: This is a modification of child support case involving a noncustodial parent whose net monthly income exceeds $6,250. Appellant, Janet K. Florence, and Appellee, David G. Florence, are the parents of four daughters who were ages 17, 15, 13 and 10 at the time of trial. The final divorce decree, entered in November 1993, awarded custody of the children to Ms. Florence and ordered Dr. Florence to pay child support in the amount of $2,500 per month. URL:http://www.tba.org/tba_files/TCA/FLORENCE.OPN.WP6 HERMITAGE HOUSE SQUARE, L.P., v. WALTER D. ENGLAND, Court:TCA THOMAS F. BLOOM Nashville, TN Attorney for Plaintiff/Appellant THOMAS E. STEWART Madison, TN Attorney for Defendant/Appellee First Paragraph: The payee on a promissory note sued the maker in General Sessions Court for payment of the last $1,500 due on it. The court entered judgment for the payee. The maker appealed, and filed a complaint in Circuit Court which was consolidated with his appeal. The complaint alleged that the obligation on the note could not be enforced, because it represented payment on an illegal transaction. The makers argument was that the note represented a commission on a sale of real estate, in favor of an individual who was not a real estate broker or agent, in violation of Tenn. Code Ann. 62-13-101 et seq. URL:http://www.tba.org/tba_files/TCA/HERMITAG.OPN.WP6 DAVID HOWARD and wife DESSIE HOWARD, v. STEVE MATHIS d/b/a MATHIS CONSTRUCTION COMPANY, Court:TCA LYNN PERRY, Cleveland, for Appellants D. MITCHELL BRYANT of JENNE, SCOTT & BRYANT, Cleveland, for Appellee First Paragraph: This case arose out of a dispute between the parties over the construction of the plaintiffs residence. The plaintiffs, husband and wife, sued their contractor for damages caused by breach of the parties' written contract, and for removal of a contractors lien filed against their residence. They also sought damages arising out of the filing of the lien. The defendant filed a counterclaim for monies due for work performed under the contract and for damages, including attorney fees. URL:http://www.tba.org/tba_files/TCA/HOWARD.OPN.WP6 STATE OF TENNESSEE, v. JAMES E. ALLRED, Court:TCCA For the Appellant: For the Appellee: Mack Garner Charles W. Burson District Public Defender Attorney General / Reporter 318 Court Street Maryville, TN 37804 George Linebaugh Assistant Attorney General Michael L. Flynn District Attorney General Ed Bailey Asst. District AG First Paragraph: The appellant, James E. Allred, pled guilty in the Circuit Court of Blount County to violating the Motor Vehicle Habitual Offenders Act, a class E felony. Tenn. Code Ann. 55-10-616(b) (1993). The trial court sentenced the appellant to 2 years incarceration in the Tennessee Department of Correction as a standard, range I offender. Tenn. Code Ann. 40-35-112(a)(5)(1990). The trial court then granted the appellant an alternative sentence of split confinement, comprising 180 days incarceration in the county jail followed by a period of supervised probation. Tenn. Code Ann. 40-35-104(c)(4)(1994 Supp.); Tenn. Code Ann. 40-35-306 (1990). URL:http://www.tba.org/tba_files/TCCA/ALLREDJE.OPN.WP6 STATE OF TENNESSEE, v. DAVID BROCK, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: RANDY G. ROGERS CHARLES W. BURSON P.O. Box 507 Attorney General and Reporter Athens, TN 37371-0507 EUGENE J. HONEA Assistant Attorney General TIMOTHY F. BEHAN Legal Assistant JERRY N. ESTES District Attorney General First Paragraph: This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. The Defendant was convicted on a jury verdict of two counts of assault, two counts of statutory rape, and four counts of contributing to the delinquency of a minor. URL:http://www.tba.org/tba_files/TCCA/BROCKDAV.OPN.WP6 STATE OF TENNESSEE, v. DAVID ARNOLD CROSS, Court:TCCA For Appellant: For Appellee: Richard W. DeBerry Charles W. Burson Asst. Public Defender Attorney General & Reporter 24th Judicial District P.O. Box 663 Michael J. Fahey, II Camden, TN 38320 Assistant Attorney General John Overton Asst. District Attorney General First Paragraph: The defendant, David Arnold Cross, was convicted for rape of a child. The trial court imposed the maximum, Range I sentence of twenty-five (25) years. In this appeal of right, the defendant claims the evidence was insufficient to support his conviction and that the sentence was excessive. URL:http://www.tba.org/tba_files/TCCA/CROSSDAV.OPN.WP6 STATE OF TENNESSEE, v. DAVID W. CROWDER, Court:TCCA For the Appellant: For the Appellee: Michael L. Debusk Charles W. Burson 5344 N. Broadway Attorney General of TN Knoxville, TN 37918 and Michael E. Moore Solicitor General and Gina J. Barham Deputy Attorney General of TN William Paul Phillips District Attorney General and Clifton H. Sexton Assistant District AG First Paragraph: The defendant, David W. Crowder, entered guilty pleas in the Criminal Court of Union County for theft of property valued at over ten thousand dollars, a Class C felony, and simple possession of marijuana, a Class A misdemeanor. He received a sentence of three years as a Range I, standard offender for the theft conviction concurrent with a sentence of eleven months and twenty-nine days for the possession of marijuana conviction and was placed on unsupervised probation. URL:http://www.tba.org/tba_files/TCCA/CROWDERD.OPN.WP6 BILL R. DIXON, JR., v. STATE OF TENNESSEE, and CONCURRING OPINION Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: GEORGE MORTON GOOGE CHARLES W. BURSON District Public Defender Attorney General and Reporter PAMELA J. DREWERY WILLIAM DAVID BRIDGERS Assistant Public Defender Assistant Attorney General JERRY WOODALL District Attorney General DONALD ALLEN Assistant District AG First Paragraph: The Petitioner, Bill Dixon, brings this appeal after the trial court's dismissal of his petition for post-conviction relief. The Petitioner sought post-conviction relief alleging that his guilty plea was not entered voluntarily, understandingly, and knowingly, and further alleging that he received ineffective assistance of counsel preceding, during, and after the entry of his guilty plea. After conducting an evidentiary hearing, the trial court denied relief. URL:http://www.tba.org/tba_files/TCCA/DIXONBR.OPN.WP6 URL:http://www.tba.org/tba_files/TCCA/DIXONBR.CON.WP6 STATE OF TENNESSEE, v. DENNIS LIVESAY, Court:TCCA FOR THE APPELLEE: FOR THE APPELLANT: CRAIG L. GARRETT CHARLES W. BURSON Paine, Garrett & Bray Attorney General/Reporter Attorneys at Law 226 E. Broadway Avenue EUGENE J. HONEA Maryville, TN 37801-2404 Assistant Attorney General MIKE FLYNN District Attorney General PHIL MORTON Asst District AG First Paragraph: This is an appeal by the State of Tennessee from an order of the trial court dismissing a charge of driving while under the influence of an intoxicant. The trial court judge dismissed the charge because he found that law enforcement authorities violated the Defendant's constitutional right to due process when they refused to allow the Defendant's personal physician to come to the jail and procure an additional sample of blood from the Defendant for the purpose of having performed an independent laboratory examination to determine his blood alcohol content. URL:http://www.tba.org/tba_files/TCCA/LIVESAYD.OPN.WP6 STATE OF TENNESSEE, v. JAMES MCCULLEY, Court:TCCA For Appellant: For Appellee: H. Chris Trew Charles W. Burson Higgins, Biddle, Attorney General and Reporter Chester & Trew 20 Washington Ave. NW Darian B. Taylor P.O. Box 410 Assistant Attorney General Athens, TN 37303 Criminal Justice Division Jerry N. Estes District Attorney General Sarah Bird Asst. District Attorney General First Paragraph: The defendant, James McCulley, was convicted in separate trials of two counts of aggravated robbery. The trial court imposed a Range III sentence of thirty years for each count and ordered the sentences to run consecutively. URL:http://www.tba.org/tba_files/TCCA/MCCULLEY.OPN.WP6 DARRELL LYNN WEST, v. STATE OF TENNESSEE, Court:TCCA For the Appellant: For the Appellee: Leslie M. Jeffress Charles W. Burson 1776 Riverview Tower Attorney General and Reporter 900 S. Gay Street Knoxville, TN 37902 Charlette Reed Chambers Assistant Attorney General Randall E. Nichols District Attorney General Zane Scarlett Asst. District Attorney General First Paragraph: The appellant, Darrell Lynn West, appeals the dismissal of his petition for post-conviction relief without an evidentiary hearing. After reviewing the record, we affirm the judgment of the post-conviction court. URL:http://www.tba.org/tba_files/TCCA/WESTDL.OPN.WP6 STATE OF TENNESSEE, v. TONY LYNN ZEOLIA, Court:TCCA For the Appellant: For the Appellee: Deborah Black Huskins Charles W. Burson Office of Public Defender Attorney General/Reporter 142 East Market Street Johnson City, TN 37601 Michelle L. Lehmann Assistant Attorney General David E. Crockett District Attorney General Joe C. Crumley, Jr. Asst. District AG First Paragraph: The appellant, Tony Zeolia, pled guilty in the Criminal Court of Washington County to four counts of arson, a class C felony. See Tenn. Code Ann. 39-14-301(b)(1991). For each count, the appellant was sentenced as a range I standard offender to five years incarceration with the Tennessee Department of Correction. The trial court ordered that the sentences be served concurrently. URL:http://www.tba.org/tba_files/TCCA/ZEOLIA.OPN.WP6
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