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.
- 09-New Opinons From TSC
- 00-New Opinons From TSC-Rules
- 00-New Opinons From TSC-Workers Comp Panel
- 04-New Opinons From TCA
- 04-New Opinons From TCCA
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STATE OF TN, v. WAYNE BURDIN, Court:TSC For Plaintiff-Appellant: For Defendant-Appellee: Charles W. Burson Brett B. Stein Attorney General & Reporter Memphis Kathy Morante Deputy Attorney General First Paragraph: This case presents an appeal from a condition of probation imposed by the trial court upon a guilty plea to a charge of sexual battery. The judgment of the Court of Criminal Appeals removing the condition is affirmed, and the case is remanded to the trial court. Judge: REID, J. URL:http://www.tba.org/tba_files/TSC/BURDIN.OPN.WP6 ANNA ELIZABETH WULFERT DAVIS,v. SAMMY LYNN DAVIS, Court:TSC For Plaintiff-Appellant: For Defendant-Appellee: Lanier Fogg Everett B. Gibson Memphis Memphis First Paragraph: This case presents for review the decision of the Court of Appeals reversing the trial court's order that interest on alimony in solido began to accrue on a certain date prior to the date of final judgment. This Court finds that the applicable statute, though ambiguous, authorizes the trial court's award of interest. Judge: REID, J. URL:http://www.tba.org/tba_files/TSC/DAVISAEW.OPN.WP6 STATE OF TN, v. TIM0THY D. HARRIS and CRAIG THOMPSON, Court:TSC For Appellant: For Appellee Harris: Charles W. Burson Harry U. Scruggs Attorney General & Reporter Memphis, TN Amy L. Tarkington David C. Stebbins Christina S. Shevalier (formerly w/ Capital Case Assistant Attorneys General Resource Center) Columbus, Ohio Glenn I. Wright For Appellee Thompson: Gerald Harris Paul F. Goodman John G. Oliva Assistant District Attorneys Nashville, TN David C. Stebbins (formerly w/ Capital Case Resource Center) Columbus, Ohio Carolyn Watkins Edward G. Thompson Assistant Public Defenders Memphis, TN First Paragraph: The single issue in this consolidated appeal is purely a question of law and requires a determination of whether a remand for resentencing is appropriate when an appellate court in a capital case concludes the sole aggravating circumstance found by the original sentencing jury is legally invalid and sets aside the sentence of death. Because there is no legal principle which precludes the State from seeking the death penalty upon resentencing, a remand for that purpose is appropriate. Judge: ANDERSON, C.J. URL:http://www.tba.org/tba_files/TSC/HARRISTD.DIS.WP6 STATE OF TN, v. FRANKLIN SANDERS, d/b/a MONEYCHANGER, S.P., Court:TSC For Plaintiff-Appellee: For Defendant-Appellant: Charles W. Burson Arch B. Boyd III Attorney General and Reporter Memphis Nashville Lowell H. Becraft, Jr. Michael E. Moore Huntsville, AL Solicitor General Edwin Vieira, Jr. Manassas, VA Michael W. Catalano Associate Solicitor General Joel W. Perry Assistant Attorney General John W. Pierotti District Attorney General Phyllis B. Gardner Lee Wilson, Jr. Assistant District Attorneys General First Paragraph: The primary issue presented in this case is whether the exchange of gold and silver coins and bullion for dollars constitutes the sale of tangible personal property which is subject to sales tax imposed by Tenn. Code Ann. 67-6-101 et seq. A related issue is whether the criminal prosecution of the defendant pursuant to Tenn. Code Ann. 67-1-1440(d) violated the defendant's constitutional right to due process. Both issues are resolved against the defendant. The record supports the judgment of conviction affirmed by the Court of Criminal Appeals. Judge: REID, J. URL:http://www.tba.org/tba_files/TSC/SANDERSF.OPN.WP6 JAMES STAGGS, Successor and Representative of Mary Staggs, Deceased, v. NATIONAL HEALTH CORPORATION, Court:TSC For Appellant: For Appellee: Ben Boston Paul B. Plant Christopher V. Sockwell J. Jay Cheatwood Boston, Bates & Holt Harwell, Plant & Cheatwood First Paragraph: We review the conclusions of law of the Special Workers' Compensation Appeals Panel to determine whether an employee is entitled to collect post judgment interest on an award of discretionary costs or on medical expenses an employer is ordered to repay to a third-party health insurance carrier. Judge: ANDERSON, C.J. URL:http://www.tba.org/tba_files/TSC/STAGGSJ.OPN.WP6 JESSE S. TIDWELL, v. STATE OF TN, Court:TSC For Appellant: For Appellee: Jesse Spence Tidwell Charles W. Burson Pro se Attorney General and Reporter Michael E. Moore Solicitor General Gordon W. Smith Associate Solicitor General Daniel W. Cook Assistant District Attorney First Paragraph: The appellant, Jesse S. Tidwell, appeals the trial courts denial of his petition for post-conviction relief. At issue is whether his trial counsel's failure to require the prosecutor to elect the particular offenses upon which convictions would be sought deprived him of his constitutional right to the effective assistance of counsel. We have carefully examined the trial and post-conviction transcripts and have thoroughly considered the contentions of both parties. For the reasons discussed below, we find that counsel's performance failed to satisfy the criteria established in Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975) and in Strickland v. Washington, 466 U.S. 558 (1984). Judge: BIRCH, J. URL:http://www.tba.org/tba_files/TSC/TIDWELLJ.OPN.WP6 STATE OF TN v. TERRY E. WOOD and DISSENTING OPINION(s) Court:TSC FOR THE APPELLANT: FOR THE APPELLEE: John H. Henderson, Jr. Charles W. Burson Public Defender Attorney General and Reporter Maurine C. Hatchett Christina S. Shevalier Assistant Public Defender Assistant Attorney General Joseph D. Baugh District Attorney General Mark Puryear Assistant District Attorney General First Paragraph: We granted the application of Terry E. Wood, the defendant, for permission to appeal in order to resolve an issue of first impression in TN: whether the return of a sealed presentment engages an accused person's speedy trial rights under the Sixth Amendment to the United States Constitution and Article I, 9, of the TN Constitution. After a thorough examination of the record and careful consideration of the issue, we conclude, for reasons appearing below, that the return of a presentment, whether sealed or unsealed, whether the accompanying capias is executed or unexecuted, is a formal accusation that engages constitutional speedy trial provisions. Judge: Birch, J. URL:http://www.tba.org/tba_files/TSC/WOODTER.OPN.WP6 URL:http://www.tba.org/tba_files/TSC/WOODTER.DIS.WP6 URL:http://www.tba.org/tba_files/TSC/WOODTER2.DIS.WP6 MARTIN H. AUSSENBERG v. BRUCE S. KRAMER, DAVID J. COCKE, AND BOROD AND KRAMER, Court:TCA For the Plaintiff/Appellants: For the Defendant/Appellees: Stanley J. Kline J. Alan Hanover Memphis, TN Memphis, TN First Paragraph: In this case, Plaintiff, Martin H. Aussenberg (Aussenberg), appeals the trial courts valuation of his former partnerships work-in-progress and accounts receivable as well as its finding regarding Aussenbergs interest in the partnerships accounts receivable and work-in progress. We affirm the decision of the trial court. Judge: HOLLY KIRBY LILLARD, J. URL:http://www.tba.org/tba_files/TCA/AUSSENBE.OPN.WP6 WILLIAM ROY HARWELL AND ALICE PATRICIA HARWELL, v. RALEIGH RIDGE OWNERS ASSOCIATION, INC., PEARSON BROTHERS CRANE and ABC MANUFACTURER, Court:TCA Forthe Plaintiffs/Appellant: For the Defendants/Appellees Ira M. Thomas J. Kimbrough Johnson Memphis, TN Memphis, TN First Paragraph: This is a negligence case brought by William Harwell (Harwell) and his wife against Raleigh Ridge Owners Association (RROA) and two other defendants not involved in this appeal. Harwell appeals the trial courts grant of summary judgment to RROA. We affirm the trial court. On February 1, 1992, Harwell sustained personal injuries while replacing a light on the top of a creosote telephone pole located in Raleigh Ridge Park. The pole broke and fell, resulting in Harwells injuries. Harwell filed the Complaint in the instant case against RROA. Judge: HOLLY KIRBY LILLARD, JUDGE URL:http://www.tba.org/tba_files/TCA/HARWELWR.OPN.WP6 STATE OF TN, DEPT. OF HUMAN SERVICES, v. GEORGE LEWIS KERSEY and TERESA MARIE KERSEY, Court:TCA LARRY D. WRIGHT Cleveland, TN Attorney for Appellants CHARLES W. BURSON ATTORNEY GENERAL & REPORTER MICHELLE K. HOHNKE ASSISTANT ATTORNEY GENERAL Attorney for Appellee First Paragraph: George and Teresa Kersey appeal the decision of the Bradley County Juvenile Court which terminated their parental rights to Edward Kersey, born January 3, 1988; Crystal Kersey, born January 17, 1990; and twins April and Erica Kersey, born May 4, 1992. The lower court awarded custody to the TN Department of Human Services ("DHS"), Appellee. Judge: ALAN E. HIGHERS, J. URL:http://www.tba.org/tba_files/TCA/KERSEY.OPN.WP6 WANDA LEE LEHMAN,v. AARON RUSSELL LEHMAN, Court:TCA KELLY STARK, McLean & Stark, Memphis, Attorney for Appellant. TED I. JONES, Memphis, Attorney for Appellee. First Paragraph: This is a domestic relations case. Wanda Lee Lehman (plaintiff) was granted an absolute divorce from Aaron Russell Lehman (defendant) in the Chancery Court of Shelby County on September 17, 1992. In that decree the chancellor awarded plaintiff alimony in futuro in the amount of $500.00 per month. Because of plaintiffs poor health and the low monthly mortgage payment, plaintiff was permitted to live in the martial home until it was sold. In the event that the home was sold, either by agreement of the parties or by court order, the decree provided that plaintiff would receive sixty-five (65%) percent of the net equity in the home with defendant receiving the remaining thirty-five (35%) percent. Judge: TOMLIN, Sr. J. URL:http://www.tba.org/tba_files/TCA/LEHMAN.MEM.WP6 STATE OF TN, v. MACK EDWARD BROWN, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: RANDALL E. REAGAN CHARLES W. BURSON 602 Gay St., Suite 905 Attorney General & Reporter Knoxville, TN 37902 MERRILYN FIERMAN Asst. Attorney General RANDALL E. NICHOLS District Attorney General ROBERT JOLLEY Asst. District Attorney General First Paragraph: The defendant, Mack Edward Brown, appeals as of right from the sentence of twenty-five (25) years set by the Knox County Criminal Court. Initially, on May 22, 1989, a jury sentenced the defendant to death after having found him guilty of first-degree murder. In the same proceeding, the jury also convicted the defendant of child neglect, a misdemeanor for which he received a sentence of eleven months and twenty-nine days. After his trial, the defendant appealed only his murder conviction which the TN Supreme Court reversed, finding that the defendant was guilty, instead, of second-degree murder. The Court then remanded the defendant's cause to the trial court which entered the twenty-five year sentence from which he now appeals. Judge: PER CURIAM (SCOTT, PEAY & COLTON, S.J.) URL:http://www.tba.org/tba_files/TCCA/BROWNMAC.OPN.WP6 STATE OF TN, v. ALLEN LEE CAMPBELL, Court:TCCA For Appellant: For Appellee: M. Jeffrey Whitt Charles W. Burson Attorney Attorney General & Reporter 706 Walnut Street Suite 902 Hunt S. Brown Knoxville, TN 37902 Assistant Attorney General Randall E. Nichols District Attorney General S. Jo Helm Asst. District Attorney General First Paragraph: The defendant, Allen Lee Campbell, entered a best interest plea of guilt to especially aggravated burglary without any recommendation by the state as to the manner and length of his sentence. The trial court imposed a Range I sentence of eleven years. The single issue raised on appeal is whether the sentence imposed was excessive. Judge: GARY R. WADE, JUDGE URL:http://www.tba.org/tba_files/TCCA/CAMPBELL.OPN.WP6 STATE OF TN, v. TOMMY NORWOOD, Court:TCCA For the Appellant: For the Appellee Larry Roddy Charles W. Burson 723 McCallie Ave. Attorney General & Reporter Chattanooga, TN 37403 Elizabeth T. Ryan Asst. Attorney General William H. Cox, III District Attorney General H.C. Bright Asst. District Attorney General First Paragraph: The appellant, Tommy Norwood, was convicted of robbery, a class C felony. As a Range III, persistent offender, he was sentenced to eleven years in the Department of Correction. On appeal, he challenges the sufficiency of the evidence and the trial courts failure to suppress identification testimony. We find no error and affirm the judgment of the trial court. Judge: William M. Barker, Judge URL:http://www.tba.org/tba_files/TCCA/NORWOOD.OPN.WP6 STATE OF TN, v. BRIAN SWICK Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Greg W. Eichelman Charles W. Burson District Public Defender Attorney General and Reporter Timothy F. Behan Assistant Atty. Gen. & Reporter C. Berkeley Bell, Jr. District Attorney General Eric D. Christiansen Assistant District AG First Paragraph: The appellant, Brian Swick, was convicted of felonious reckless endangerment, a class E felony, by a jury in the Circuit Court of Greene County. He was sentenced to serve fifteen (15) months in the county jail. On appeal, he raises the following issues for our consideration: (1) Whether the evidence adduced at trial was sufficient to sustain the verdict of the jury. (2) Whether the trial court erred in refusing to grant a second continuance to the appellant. (3) Whether the trial court erred when it refused to allow the appellant to call the probation officer of a missing witness for the purpose of explaining to the jury that the witness was subject to an outstanding warrant. (4) Whether the sentence imposed by the trial court was excessive. Judge: William M. Barker, Judge URL:http://www.tba.org/tba_files/TCCA/SWICK.OPN.WP6
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