TBALink Opinion-Flash

September 25, 1997 -- Volume #3 -- Number #091

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.

This Issue (IN THIS ORDER):
00-New Opinons From TSC
00-New Opinons From TSC-Rules
02-New Opinons From TSC-Workers Comp Panel
12-New Opinons From TCA
24-New Opinons From TCCA

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ANN B. HICKS, as next of kin to RONALD LEE HICKS, deceased vs. BROWN GALVANIZING CO., a corporation Court:TSC - Workers Comp Panel Attorneys: HUGH P. GARNER and DAVE R. PRICKETT, Garner, Lewis & Prickett, Chattanooga, for Appellant. PHILLIP E. FLEENOR and J CHRISTOPHER HALL, Shumacker & Thompson, P.C., for Appellee. Judge: McMurray First Paragraph: The decedent, Ronald Lee Hicks, was an employee of the defendant, Brown Galvanizing Co. Generally stated, the plaintiff claims that her husband, the decedent, was exposed to toxic chemicals at the defendant's plant and the exposure resulted in his death. The trial court found that the plaintiff had failed to carry the burden of proof on medical causation and dismissed the case. This appeal resulted. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TSC_WCP/hicks_wcp.WP6 Opinion-Flash ANDREA NICHOLS vs. SQUARE D COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: John Thomas Feeney Raymond W. Fraley, Jr. Lee Anne Murray Fayetteville, Tennessee FEENEY & ASSOCIATES, P.C. Nashville, Tennessee Judge: Brandt First Paragraph: The sole issue on appeal is whether the trial court's award of 65% permanent partial disability to the plaintiff's left hand is excessive. The panel concludes that it is and reduces it to 50%. URL:http://www.tba.org/tba_files/TSC_WCP/nicholsa_opn.WP6 Opinion-Flash DORIS J. BRIDGES vs. MARGARET C. CULPEPPER, Commissioner of the Tennessee Department of Employment Security; and INTERNAL REVENUE SERVICE Court:TCA Attorneys: Sheila L. Robinson-Beasley of Memphis For Appellant John Knox Walkup, Attorney General and Reporter Kimberly M. Frayn, Assistant Attorney General For Appellee, Tennessee Department of Employment Security Veronica F. Coleman, United States Attorney Joe A. Dycus, Assistant United States Attorney For Appellee, Internal Revenue Service Judge: CRAWFORD First Paragraph: This appeal involves the denial of unemployment compensation benefits. Plaintiff Doris J. Bridges appeals the decree of the chancery court which dismissed her petition for certiorari and affirmed the denial of benefits by the Board of Review of the Tennessee Department of Employment Security. URL:http://www.tba.org/tba_files/TCA/bridgesd_opn.WP6 Opinion-Flash WESLEY CAR vs. ROBERT BOURNE, M.D., et al Court:TCA Attorneys: Robert G. Gilder, Southaven, Mississippi L. Anne Jackson, Southaven, Mississippi Attorneys for Plaintiff/Appellant. Marty R. Phillips, RAINEY, KIZER, BUTLER, REVIERE & BELL, P.L.C., Jackson, TN Attorney for Defendants/Appellees Robert Bourne, M.D. and Agustin Vitualla, M.D. Michael E. Evans, EVANS & TODD, Nashville, Tennessee Attorney for Defendant/Appellee Medco Drugs, Inc. Floyd S. Flippin, ADAMS, RYAL & FLIPPIN, Humboldt, Tennessee Attorney for Defendant/Appellee David Berger, M.D. C. J. Gideon, Jr., John T. Reese, GIDEON & WISEMAN, Nashville, Tennessee Attorneys for Defendant/Appellee Jon Winter, D.O. Rebecca Adelman, GLASSMAN, JETER, EDWARDS & WADE, P.C., Memphis, Tennessee Attorney for Defendant/Appellee Robert L. Horton, Jr., D.D.S. David A. Lufkin, LUFKIN & HENLEY, Knoxville, Tennessee Attorney for Defendant/Appellee Rite Aid of Tennessee, Inc. Catherine B. Clayton, Jackson, Tennessee Attorney for Defendant/Appellee Wal-Mart Stores, Inc. John S. Little, Jackson, Tennessee Attorney for Defendant/Appellee Fry Drug Company, Inc. Lela M. Hollabaugh, MANIER, HEROD, HOLLABAUGH & SMITH, Nashville, Tennessee Attorney for Defendants/Appellees Paul Melton d/b/a Melton's Pharmacy and Fred's Stores of Tennessee, Inc. d/b/a Fred's Tom Corts, ORTALE, KELLEY, HERBERT & CRAWFORD, Nashville, Tennessee Attorney for Defendant/Appellee Herndon Drugs Judge: FARMER First Paragraph: This is an appeal from the trial court's orders dismissing Wesley Cary's complaint against various health care providers for their alleged contribution to the breakup of his marriage to Linda K. Cary. Wesley Cary (hereinafter, "Cary" or "Mr. Cary") alleged that the marriage had been irreconcilably broken due to his wife's prescription drug addiction, which he alleged was a result of the over prescription of drugs and overfilling of prescriptions by the defendants. We affirm the trial court's decision. URL:http://www.tba.org/tba_files/TCA/caryw_opn.WP6 Opinion-Flash NANCY COCKRILL vs. JUDGE JAMES EVERETT, JUDY NEWELL, MAXINE BRADLEY, RON STONE, CHARLES CORNELIUS, FELLER BROWN AUCTIONEER REALTORS Court:TCA Attorneys: NANCY COCKRILL 172-E Dellway Villa Apartments Nashville, Tennessee 37207 Pro Se/Plaintiff/Appellant JUDY NEWELL 4014 Drakes Branch Drive Nashville, Tennessee 37218 Pro Se/Defendant/Appellee MAXINE C. BRADLEY 410 Farris Avenue Madison, Tennessee 37115 Pro Se/Defendant/Appellee RICHARD L. COLBERT 511 Union Street, Suite 2700 Nashville, Tennessee 37219 Attorney for Defendant/Appellee Charles G. Cornelius HOMER R. AYERS 303 Frances Street Goodlettsville, Tennessee 37070-0904 Attorney for Defendant/Appellee Feller Brown Auctioneer Realtors Judge: CANTRELL First Paragraph: A pro se plaintiff filed this action for damages against a deceased probate judge, a real estate auction company, a lawyer, and two individuals. The Circuit Court of Davidson County granted the motions of the lawyer and the auction company to dismiss for failing to state a claim. Acting sua sponte, the court also dismissed the complaint against all the remaining defendants. We affirm. URL:http://www.tba.org/tba_files/TCA/cockriln_opn.WP6 Opinion-Flash WILLIAM H. FORLINES, III vs. PATRICIA A. FORLINES Court:TCA Attorneys: MICHAEL W. EDWARDS 177 East Main Street Hendersonville, Tennessee 37075 Attorney for Plaintiff/Appellee JAMES ROBIN McKINNEY, JR. Suite 103 214 Second Avenue North Nashville, Tennessee 37201 Attorney for Defendant/Appellant Judge: CANTRELL First Paragraph: The appellant has appealed a judgment of the General Sessions Court of Sumner County granting her a divorce and enforcing a property settlement agreement. On appeal she asserts that (1) there is no pleading in the record whereby she sought a divorce and (2) that the property settlement agreement was not enforceable. URL:http://www.tba.org/tba_files/TCA/forlinwh_opn.WP6 Opinion-Flash ELREE L. HORTON, et al vs. CARROLL COUNTY, TENNESSEE, THE BOARD OF COMMISSIONERS OF CARROLL COUNTY, TENNESSEE, COUNTY EXECUTIVE WALTER BUTLER AND CARROLL & HENRY SOLID WASTE PLANNING REGION Court:TCA Attorneys: Elree L. Horton, Pro Se Ethridge Adkisson, Pro Se Robert T. Keeton, Jr., Huntingdon, Tennessee Attorney for Defendants/Appellees. Judge: FARMER First Paragraph: This is an action by Elree L. Horton and Ethridge Adkisson, Appellants, against the appellees, Carroll County, Tennessee, the Board of Commissioners of Carroll County, County Executive Walter Butler (hereinafter collectively "County") and C & H Solid Waste Planning Region, for a judgment from the chancery court declaring them exempt from payment of a fee imposed by the County for rural "mailbox" garbage collection. Suit was filed in response to legal proceedings initiated in general sessions court by the Carroll County Solid Waste Authority against those delinquent in payment of the fees, including the appellants. Judgments were entered against the appellants who appealed to circuit court. Their appeals were transferred to the chancery court for consolidation and disposition with the action seeking declaratory relief. After a hearing, the chancellor entered judgment for the appellees finding legal authority for the County's imposition of the mandatory fee. The court also sustained the judgments of the general sessions court. The appellants have appealed, challenging the correctness of the trial court's decision. We affirm and remand. URL:http://www.tba.org/tba_files/TCA/hortonel_opn.WP6 Opinion-Flash BILLY J. JOHNSON, ET AL vs. STATE OF TENNESSEE Court:TCA Attorneys: MIKE MOSIER and J. COLIN MORRIS, Mosier & Morris, Jackson, Attorneys for Plaintiff. JOHN KNOX WALKUP, Attorney General and MARY G. MOODY, Assistant Attorney General, Nashville, Attorneys for Defendant. Judge: TOMLIN First Paragraph: Joshua David Johnson (hereinafter "Josh"), age 4, was struck and injured by a van driven by Leeann Waldrop on a Jackson city street. At the time of the accident Ms. Waldrop was an employee of the Tennessee Department of Human Services and was acting within the scope of her employment. Josh's father, Billy J. Johnson, (hereinafter "Plaintiff") filed a notice of claim on his behalf against the State of Tennessee, alleging negligence on the part of Ms. Waldrop. This claim was transferred to the Claims Commission, who after a hearing found that Plaintiff had failed to carry the burden of proof that Ms. Waldrop was driving her van at an excessive rate of speed or that she failed to keep a proper lookout ahead. The Commissioner found from all the proof that the proximate cause of the accident was Josh suddenly darting from behind a dumpster into the path of Ms. Waldrop's van. While Plaintiff has appealed, we are of the opinion that Defendant has more clearly stated the issues. They are: whether the Commissioner erred in finding that: (1) Ms. Waldrop was not driving the van at an excessive rate of speed at the time of the accident; (2) Ms. Waldrop was maintaining a proper lookout ahead; (3) the proximate cause of the accident was the act of Josh in riding his bicycle into the path of the state van. For the reasons hereinafter stated, we reverse the decision of the Commissioner. URL:http://www.tba.org/tba_files/TCA/johnbill_opn.WP6 Opinion-Flash CHARLES THOMAS JOYNER VS. DEPUTY SHERIFF B. TAYLOR, et al Court:TCA Attorneys: For the Plaintiff/Appellee: For the Defendants/Appellants: Connie Westbrook Brian L. Kuhn Thomas E. Vornberger Memphis, Tennessee Memphis, Tennessee Judge: LILLARD First Paragraph: This is a civil rights case. Appellants, Shelby County and Shelby County Sheriff A.C. Gilless, Jr., appeal a jury verdict finding them liable for violating the civil rights of Appellee Charles Thomas Joyner under 42 U.S.C. S 1983. Because the alleged civil rights violation was caused by simple negligence, and not by a County policy, procedure, custom, or usage, we reverse. URL:http://www.tba.org/tba_files/TCA/joynerc_opn.WP6 Opinion-Flash THE JUDDS, a Tennessee partnership, NAOMI JUDD, both individually and on behalf of PRO TOURS, INC., a Tennessee corporation, and WYNONNA JUDD, both individually and on behalf of PRO TOURS, INC, a Tennessee corporation VS. STEVEN D. PRITCHARD, an individual and PRO TOURS, INC., a Tennessee corporation Court:TCA Attorneys: Jay S. Bowen, John R. Jacobson, and Gregory S. Reynolds Bowen, Riley, Warnock & Jacobson, PLC of Nashville For Appellants Samuel D. Lipshie and Scott K. Haynes Boult, cumming, Conners & Berry, PLC of Nashville For Appellee, Pritchard Judge: CRAWFORD First Paragraph: This appeal involves the personal liability of a corporate officer. Plaintiffs, the Judds, a Tennessee partnership; Naomi Judd, individually and on behalf of Pro Tours, Inc.; and Wynonna Judd, individually and on behalf of Pro Tours, Inc., appeal from the judgment of the trial court granting summary judgment to defendant, Steven D. Pritchard. URL:http://www.tba.org/tba_files/TCA/juddsna_opn.WP6 Opinion-Flash MILAM CONSTRUCTION, CO., INC. VS. MICHAEL B. JOHNSON, SR., and Wife, DAPHNE S. JOHNSON Court:TCA Attorneys: Frankie K. Stanfill Lexington, Tennessee Attorney for Defendants/Appellants Bill R. Martin Lexington, Tennessee Attorney for Plaintiff/Appellee Judge: CRAWFORD First Paragraph: In this case, Appellant Michael B. Johnson ("Johnson") and Appellee Milam Construction Company ("Milam Construction") entered into a written contract for the construction of a home, for a contract price of $75,500. Johnson deposited $500 into escrow. During construction, Johnson approached Jerry Milam ("Milam"), President of Milam Construction Company, with a request for additional work, which Milam estimated could be done for $6,000. Milam and Johnson orally agreed for Milam Construction to do this additional work. Subsequently, Johnson requested Milam Construction to perform other additional work. The cost of all of the additional work totaled $16,347.70. URL:http://www.tba.org/tba_files/TCA/milamcon_opn.WP6 Opinion-Flash POPULAR HOMES, INC., CANADA TRACE, INC., TOM LONG & KATHY LONG VS. CLAYBORN BALL TEMPLE A.M.E CHURCH, and REVEREND E. ALBERT BROWN Court:TCA Attorneys: T. James Watson of Bartlett For Appellants Charles Waldman of Memphis For Appellees Judge: CRAWFORD First Paragraph: Plaintiffs' complaint against defendants, Clayborn Ball Temple AME Church and Reverend E. Albert Brown, Jr., is titled "Complaint for Breach of Contract for Sale of Real and Personal Property." The complaint alleges that defendant Brown acting as the agent and with authority from defendant church entered into a contract with plaintiff providing for conveyance of real property and certain personal property to the church. Prior to the consummation of the transaction, Reverend Brown, for the church, assumed the duties of managing the property and collecting rent, but failed to abide by the contract and pay the mortgage indebtedness and taxes due on the properties. The contract was breached by default in the payment of the mortgage obligations and taxes and further that payment was not made for the property as required by the contract. The complaint avers that as a result of the defendants' actions, the property was foreclosed, and plaintiffs were liable for deficiencies and other expenses that should have been paid by defendants. URL:http://www.tba.org/tba_files/TCA/popular_opn.WP6 Opinion-Flash RICHARD L. POWELL VS. McDONNELL INSURANCE, INC. Court:TCA Attorneys: ERNEST G. KELLY, JR., Memphis, Attorney for Plaintiff/Counter Defendant/Appellee. EUGENE J. PODESTA, JR., Baker, Donelson, Bearman & Caldwell, Memphis, Attorney for Defendant/Counter-Plaintiff/Appellant. Judge: TOMLIN First Paragraph: Richard L. Powell (hereafter "Powell") filed suit in the Chancery Court of Shelby County seeking a declaratory judgment and alleging breach of contract and damages for the wrongful termination of his employment contract by Defendant, McDonnell Insurance Company (hereafter "McDonnell"). McDonnell filed an answer and counter-claim. In its counter-claim McDonnell asserted that Powell had breached a covenant not to compete in his employment contract with McDonnell and that as a result of this breach McDonnell was entitled to injunctive relief, money damages and attorney fees. Following a bench trial, the chancellor entered an order of reference to the Master requesting his findings on specific issues. Following the issuance of the Master's Report, and the filing of exceptions thereto by both parties, the chancellor adopted the report of the Master with certain exceptions. The court held that while the restrictive covenant in the employment agreement between the parties was valid and enforceable, the duration of the restrictive covenant should be limited to one year. The chancellor awarded judgment against Powell in the amount of $141,000.00 as damages for his breach of a one year restrictive covenant, while allowing Powell a credit against the judgment in the amount of one half of the balance in a reserve account. The court also awarded McDonnell one-third of the amount of attorney fees requested, along with prejudgment interest. Both parties offer issues for review on appeal. URL:http://www.tba.org/tba_files/TCA/powelric_opn.WP6 Opinion-Flash MELBA ROBBINS and DEWEY ROBBINS vs. MEMPHIS LITTLE THEATRE PLAYERS ASSOCIATION a/k/a THEATRE MEMPHIS a/k/a MEMPHIS LITTLE THEATRE Court:TCA Attorneys: For the Plaintiffs/Appellants: For the Defendants/Appellees: John C. Wagner Joe Lee Wyatt Memphis, Tennessee Memphis, Tennessee Judge: LILLARD First Paragraph: This is a slip-and-fall case. At the end of the plaintiffs' proof, the trial court granted the defendant a directed verdict, based on a lack of evidence of causation and of the defendant's creation or knowledge of the dangerous condition. We affirm. URL:http://www.tba.org/tba_files/TCA/robbinsm_opn.WP6 Opinion-Flash DOCK BATTLES vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DOCK BATTLES, PRO SE JOHN KNOX WALKUP MLRC, 6000 State Road Attorney General and Reporter Memphis, TN 38134 DEBORAH A. TULLIS Assistant Attorney General 425 5th Avenue North Nashville, TN 37243 JOHN W. PIEROTTI District Attorney General ALANDA HORNE Asst District Attorney General Criminal Justice Complex, Ste 301 201 Poplar Street Memphis, TN 38103 Judge: WELLES First Paragraph: The Appellant appeals as of right from the trial court's dismissal of Appellant's petition for habeas corpus relief. The trial court determined that the petition did not allege grounds which would warrant habeas corpus relief, and dismissed the petition without appointing counsel or conducting an evidentiary hearing. We affirm the dismissal. URL:http://www.tba.org/tba_files/TCCA/battlesd_ord.WP6 Opinion-Flash DARRELL E. HELTON vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Gerald T. Eidson John Knox Walkup 205 Highway 66 South Attorney General & Reporter Rogersville, TN 37857 500 Charlotte Avenue Nashville, TN 37243-0497 Janis L. Turner Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 C. Berkeley Bell, Jr. District Attorney General 109 South Main Street, Suite 501 Greeneville, TN 37743 J. Douglas Godbee Asst District Attorney General Hawkins County Courthouse Rogersville, TN 37857 Judge: Jones First Paragraph: The appellant, Darrell E. Helton (petitioner), appeals as of right from a judgment of the trial court dismissing his suit for post-conviction relief following an evidentiary hearing. In this Court, the petitioner contends he was denied his constitutional right to the effective assistance of counsel because counsel failed to brief an issue in this Court on direct appeal. After a thorough review of the record, the briefs submitted by the parties, and the law governing the issue presented for review, it is the opinion of this Court that the judgment of the trial court should be affirmed. URL:http://www.tba.org/tba_files/TCCA/heltonde_opn.WP6 Opinion-Flash STATE OF TENNESSEE vs. EDWARD A. HUDSON Court:TCCA Attorneys: For the Appellant: For the Appellee: Stephen M. Wallace Charles W. Burson District Public Defender Attorney General of Tennessee and and Richard A. Tate Robin L. Harris Asst Dist Public Defender Asst Attorney General of Tennessee P.O. Box 839 450 James Robertson Parkway Blountville, TN 37617-0839 Nashville, TN 37243-0493 H. Greeley Wells, Jr. District Attorney General and Barry P. Staubus Asst District Attorney General P.O. Box 526 Blountville, TN 37617-0525 Judge: Tipton First Paragraph: The defendant, Edward A. Hudson, appeals as of right from his conviction by a jury in the Sullivan County Criminal Court for rape of a child, a Class A felony. As a Range I, standard offender, he received a twenty-year sentence and was fined $30,000. The defendant contends that the evidence is insufficient to convict him of rape and that his sentence is excessive. We affirm the defendant's conviction and modify his sentence. URL:http://www.tba.org/tba_files/TCCA/hudsonea_opn.WP6 Opinion-Flash STATE OF TENNESSEE vs. JAMES W. JACOBS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: GREGORY D. SMITH JOHN KNOX WALKUP One Public Square, Ste. 321 Attorney General and Reporter Clarksville, TN 37040 CLINTON J. MORGAN Counsel for the State 450 James Robertson Parkway Nashville, TN 37243-0493 JOHN CARNEY District Attorney General ARTHUR BIEBER Assistant District Attorney 204 Franklin Street Clarksville, TN 37040 Judge: SMITH First Paragraph: A Montgomery County Circuit Court jury found Appellant James W. Jacobs guilty of four counts of aggravated rape, one count of aggravated sexual battery, and one count of attempted aggravated rape. He received a twenty-two year sentence for each of three aggravated rape convictions, a twenty-five year sentence for the fourth aggravated rape conviction, a fourteen year sentence for the aggravated sexual battery conviction, and a thirteen year sentence for the attempted aggravated rape conviction. Except for the aggravated sexual battery sentence, the trial court ordered each of the sentences served consecutively, for an effective sentence of one hundred four years in the Tennessee Department of Correction. In this direct appeal, Appellant presents the following issues for review: (1) whether the trial court erred in denying his motion for a state-paid deoxyribonucleic acid (DNA) expert; (2) whether his aggravated sexual battery conviction is void; and (3) whether his sentence is excessive. URL:http://www.tba.org/tba_files/TCCA/JACOBSJA_OPN.WP6 Opinion-Flash STATE OF TENNESSEE vs. JAMES W. JACOBS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: RICHARD JANAK, PRO SE JOHN KNOX WALKUP M.C.R.C.F. Attorney General and Reporter P.O. Box 2000 Wartburg, Tennessee 37887 PETER M. COUGHLAN Assistant Attorney General 450 James Robertson Parkway Nashville, Tennessee 37243-0493 JOSEPH D. BAUGH District Attorney General P.O. Box 937 Franklin, Tennessee 37065-0937 Judge: WALKER First Paragraph: Petitioner, Richard Janak, appeals the Order of the Circuit Court Williamson County dismissing his petition for writ of habeas corpus. He is presently serving sentences of six years for theft, and four years for failure to appear. URL:http://www.tba.org/tba_files/TCCA/JANAKRIC_OPN.WP6 Opinion-Flash STATE OF TENNESSEE vs. JAMES W. JACOBS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: BOBBY LEE JEFFRIES, pro se JOHN KNOX WALKUP Inmate #84191 Attorney General & Reporter Cold Creek Correctional Facility P.O. Box 1000 DEBORAH A. TULLIS Henning, TN 38041-1000 Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 JOHN W. PIEROTTI District Attorney General DAVID HENRY Asst District Attorney General 201 Poplar Avenue, Ste. 301 Memphis, TN 38103 Judge: WOODALL First Paragraph: The Petitioner, Bobby Lee Jeffries, appeals the order of the Shelby County Criminal Court dismissing his pro se petition for post-conviction relief. The trial court found that his petition was filed outside the statute of limitations, and failed to state a claim upon which relief could be granted. In this appeal, Petitioner raises numerous issues which can collectively be summarized as challenging the trial court's ruling that the petition for post conviction relief is time-barred. The Petitioner's primary argument is that the Post-Conviction Procedure Act that became effective May 10, 1995, gives him a new-one year time period in which to file a Petition for Post-Conviction Relief. After a review of the record, we affirm the trial court's denial of post conviction relief. URL:http://www.tba.org/tba_files/TCCA/jeffries_opn.WP6 Opinion-Flash ROSS JONES vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JACK E. SEAMAN JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter The Tower 611 Commerce St., Ste. 2704 LISA A. NAYLOR Nashville, TN 37203 Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 VICTOR S. JOHNSON III District Attorney General ROGER D. MOORE Asst District Attorney General Washington Square 222 Second Ave. North, Ste. 500 Nashville, TN 37201-1649 Judge: WITT First Paragraph: The petitioner, Ross Jones, appeals the Davidson County Criminal Court's dismissal of his petition for post-conviction relief. The petitioner is currently serving a sentence of 15 years in the Tennessee Department of Correction for a conviction of aggravated burglary. In this appeal, he presents two issues for our review: (1) whether he was denied the effective assistance of counsel, and (2) whether the sentencing statute under which he was sentenced is unconstitutional. URL:http://www.tba.org/tba_files/TCCA/jonesr_opn.WP6 Opinion-Flash STATE OF TENNESSEE vs. MARK SPENCER KING Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Jacky O. Bellar John Knox Walkup Attorney at Law Attorney General & Reporter 212 Main Street 500 Charlotte Avenue Carthage, TN 37030 Nashville, TN 37243-0497 J. Branden Bellar Janis L. Turner Attorney at Law Assistant Attorney General 212 Main Street 450 James Robertson Parkway Carthage, TN 37030 Nashville, TN 37243-0493 William A. Gibson District Attorney General 145 South Jefferson Avenue Cookeville, TN 38501 William S. Roberson Assistant District Attorney General 145 South Jefferson Avenue Cookeville, TN 38501 Judge: Jones First Paragraph: The appellant, Mark Spencer King (defendant), was convicted of driving while under the influence (DUI) following a bench trial. The sole issue which this Court must resolve is whether evidence of the chemical breath test should have been admitted into evidence. The defendant argues this evidence should not have been introduced because the 1995 amendment to Tenn. Code Ann. S 55-10-408(b), which rendered the statute unconstitutional, was in effect at the time he was arrested. After a thorough review of the record, the briefs submitted by the parties, and the law governing the issue presented for review, it is the opinion of this Court that the judgment of the trial court should be affirmed. URL:http://www.tba.org/tba_files/TCCA/KINGMS_OPN.WP6 Opinion-Flash JAIMIE K. LOVATO vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Paul G. Whetstone Charles W. Burson 502 North Jackson Street Attorney General and Reporter Morristown, Tennessee 37814 Christiana S. Shevalier Assistant Attorney General 450 James Robertson Parkway Nashville, Tennessee 37243-0943 C. Berkeley Bell, Jr. District Attorney General Cecil Mills Asst District Attorney General 109 South Main Street, Suite 501 Greeneville, Tennessee 37743 Judge: Russell First Paragraph: This is an appeal from the dismissal of a Petition for Post-Conviction Relief filed pro se by Jaimie K. Lovato ("Petitioner"). The Petition was dismissed by the trial judge without a hearing and without the appointment of counsel. The Order stated that the Petition was dismissed on the grounds that all issues raised had been previously determined or waived under Tennessee Code Annotated S 40-30-102 and that the Petition was time-barred under Tennessee Code Annotated S 40-30 102. The Petitioner has appealed the dismissal on the grounds that counsel should have been appointed and a full evidentiary hearing held on the Petition, on the grounds that the three year statute of limitation had not passed since final disposition of the Petitioner's previous Petition for Post-Conviction Relief, and on the grounds that the issues raised in the second Petition for Post-Conviction Relief were not previously determined or waived. We affirm the trial court. URL:http://www.tba.org/tba_files/TCCA/lavato_cca.WP6 Opinion-Flash STATE OF TENNESSEE vs. TERRY ANTONIO LAWRENCE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MS. THERESA W. DOYLE JOHN KNOX WALKUP Attorney At Law Attorney General & Reporter 211 Printer's Alley Bldg Nashville, TN 37201 PETER COUGHLAN Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General PAUL DeWITT Asst. District Attorney General Washington Square, Suite 500 222 Second Avenue, North Nashville, TN 37201-1649 Judge: WITT First Paragraph: The defendant, Terry Antonio Lawrence, appeals from the sentence imposed by the Criminal Court of Davidson County. He was indicted on one count of attempt to commit premeditated first degree murder and one count of especially aggravated robbery. Pursuant to a plea agreement, he pleaded guilty to the count of attempt to commit first degree murder, a Class A felony, and the robbery count was dismissed. After the hearing, the trial court sentenced the defendant as a Range I offender to twenty-five years to serve in the Department of Correction. He asserts the misapplication of enhancement and mitigating factors in sentencing him to the maximum sentence within the range. Upon a thorough review of the record before the court, we affirm. URL:http://www.tba.org/tba_files/TCCA/lawrenta_opn.WP6 Opinion-Flash STATE OF TENNESSEE vs. STACY DWAYNE MEADOWS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DAVID ALLEN DOYLE JOHN KNOX WALKUP District Public Defender Attorney General and Reporter PAMELA E. BECK KAREN M. YACUZZO NANCY MYERS Assistant Attorney General Assistant District PDs 450 James Robertson Parkway 117 East Main Street Nashville, TN 37243-0493 Gallatin, TN 37066-2801 LAWRENCE RAY WHITLEY District Attorney General DEE GAY Asst District Attorney General 113 West Main Street Gallatin, TN 37066-2803 Judge: RILEY First Paragraph: The appellant, Stacy Dwayne Meadows, appeals the Sumner County Criminal Court's order revoking his community corrections sentence. Appellant contends that the trial court erred in revoking this alternative sentence and ordering confinement. We find no error; accordingly, the judgment of the trial court is affirmed. URL:http://www.tba.org/tba_files/TCCA/MEADOWSD_OPN.WP6 Opinion-Flash STATE OF TENNESSEE vs. CHARLES STEVE MILLER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JERRY S. SLOAN JOHN KNOX WALKUP 730 Cherry Street, Suite C Attorney General and Reporter Chattanooga, TN 37402 MERRILYN FEIRMAN Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 WILLIAM H. COX, III District Attorney General DAVID DENNY Asst District Attorney General 600 Market Street Chattanooga, TN 37402 Judge: RILEY First Paragraph: The appellant, Stacy Dwayne Meadows, appeals the Sumner County Criminal Court's order revoking his community corrections sentence. Appellant contends that the trial court erred in revoking this alternative sentence and ordering confinement. We find no error; accordingly, the judgment of the trial court is affirmed. URL:http://www.tba.org/tba_files/TCCA/millercs_opn.WP6 Opinion-Flash STATE OF TENNESSEE vs. ROBERT L. MILLER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Kevin Shepherd Charles W. Burson 404 Ellis Avenue Attorney General and Reporter Maryville, Tennessee 37801 Lisa A. Yacuzzo Robert C. Edwards Assistant Attorney General 707 Market Street 404 James Robertson Parkway Knoxville, Tennessee 37902 Nashville, Tennessee 37243 Mike Flynn District Attorney General Blount County Courthouse Maryville, Tennessee 37801 Judge: Russell First Paragraph: This case is an appeal as a matter of right by Robert L. Miller ("Appellant"), who was convicted of one count of incest in violation of Tennessee Code Annotated S 39-15-302. The Appellant appeals from the judgment of the Hon. D. Kelly Thomas, Jr., Judge of the Circuit Court of Blount County, Tennessee, who denied the Appellant's application for probation and imposed a sentence of five years in the local jail with work release. The Appellant challenges both the denial of probation and the length of the sentence given. We affirm the trial judge's denial of probation and the imposition of the five year sentence. URL:http://www.tba.org/tba_files/TCCA/miller_cca.WP6 Opinion-Flash JOHNNY MOFFITT vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Lloyd R. Tatum John Knox Walkup Attorney at Law Attorney General & Reporter 124 East Main Street 500 Charlotte Avenue Henderson, TN 38340 Nashville, TN 37243-0497 Deborah A. Tullis Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 James G. Woodall District Attorney General P.O. Box 2825 Jackson, TN 38302-2825 Alfred L. Earls Assistant District Attorney General P.O. Box 2825 Jackson, TN 38302-2825 Judge: Jones First Paragraph: The appellant, Johnny Moffitt (petitioner), appeals as of right from a judgment of the trial court dismissing his suit for post-conviction relief following an evidentiary hearing. The trial court found the grounds asserted by the petitioner had been waived because he failed to include the grounds in a prior suit for a writ of habeas corpus in the Federal District Court for the Western District of Tennessee, which was determined upon the merits. The court further found that if the suit was considered on the merits of the grounds asserted, the petitioner would not be entitled to relief from his conviction. In this Court, the petitioner contends the failure of the trial court to instruct on the defense of alibi constituted a denial of federal and state due process and was the result of ineffective assistance of counsel. He further contends he has neither previously litigated nor waived this issue. After a thorough review of the record, the briefs submitted by the parties, and the law governing the issues presented for review, it is the opinion of this Court the judgment of the trial court should be reversed and this cause remanded to the trial court for the reasons hereinafter set forth in this opinion. URL:http://www.tba.org/tba_files/TCCA/moffittj_opn.WP6 Opinion-Flash JOE HENRY MOORE vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: THOMAS F. BLOOM JOHN KNOX WALKUP 500 Church Street Attorney General and Reporter 5th Floor Nashville, TN 37219 MICHAEL J. FAHEY, II Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General ROGER MOORE Assistant District Attorney General Washington Sq., Ste. 500 222 Second Avenue, N. Nashville, TN 37201-1649 Judge: RILEY First Paragraph: Appellant, Joe Henry Moore, appeals the summary dismissal of his motion for delayed appeal of his second petition for post-conviction relief. Finding no basis to grant the delayed appeal, we AFFIRM the dismissal of his motion. URL:http://www.tba.org/tba_files/TCCA/moorejh_opn.WP6 Opinion-Flash STATE OF TENNESSEE vs. RICHARD E. NELSON Court:TCCA Attorneys: For the Appellant: For the Appellee: Stephen W. Pate Charles W. Burson 218 W. Main Street Attorney General and Reporter Murfreesboro, TN 37130 (On appeal) Karen M. Yacuzzo James H. Flood Assistant Attorney General 122 Public Square 450 James Robertson Parkway Lebanon, TN 37087 Nashville, TN 37243-0493 (At trial) Tom P. Thompson, Jr. District Attorney General Robert N. Hibbett Assistant District Attorney 111 Cherry Street Lebanon, TN 37087 Judge: Barker First Paragraph: The appellant, Richard E. Nelson, appeals the sentences he received following guilty verdicts by a Wilson County jury for the offenses of driving under the influence, fifth offense; driving on a revoked license, third offense; and evading arrest. The trial court sentenced the appellant to eleven months, twenty-nine days to be served at one hundred (100%) percent for his convictions for DUI and driving on a revoked license. Those sentences were ordered to be served consecutively. He was sentenced to a concurrent sentence of six months upon his conviction for evading arrest. Appellant's license was suspended for three years and he was fined $1,110. URL:http://www.tba.org/tba_files/TCCA/NELSONRE_OPN.WP6 Opinion-Flash STATE OF TENNESSEE vs. ARMONDO HERNANDEZ OLIVERIA Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Richard A. Spivey John Knox Walkup Attorney at Law Attorney General & Reporter 142 Cherokee Street 500 Charlotte Avenue Kingsport, TN 37660-4308 Nashville, TN 37243-0497 (On Brief) Marvin E. Clements, Jr. Timothy R. Wilkerson Assistant Attorney General Attorney at Law 450 James Robertson Parkway 1370 Dewey Avenue Nashville, TN 37243-0493 Kingsport, TN 37664-3655 (Oral Argument) H. Greeley Wells, Jr. District Attorney General P. O. Box 526 Blountville, TN 37617-0526 Edward E. Wilson Asst District Attorney General P. O. Box 526 Blountville, TN 37617-0526 Judge: Jones First Paragraph: The appellant, Armondo Hernandez Oliveria (defendant), entered pleas of guilty to fifteen (15) counts of statutory rape, a Class E felony. Pursuant to a plea agreement, the trial court imposed Range I sentences consisting of confinement for two (2) years in the Department of Correction on all fifteen counts. The sentences are to be served concurrently. In this Court, the defendant contends the trial court abused its discretion by (a) failing to impose an alternative sentence and (b) using enhancement factor four, which permits enhancement due to the vulnerability of the victim, as a basis for denying an alternative sentence. After a thorough review of the record, the briefs submitted by the parties, and the law governing the issues presented for review, it is the opinion of this Court that the judgment of the trial court should be affirmed. URL:http://www.tba.org/tba_files/TCCA/oliveria_opn.WP6 Opinion-Flash STATE OF TENNESSEE vs. RONALD PAUL Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Richard A. Spivey John Knox Walkup Attorney at Law Attorney General & Reporter 142 Cherokee Street 500 Charlotte Avenue Kingsport, TN 37660-4308 Nashville, TN 37243-0497 (On Brief) Marvin E. Clements, Jr. Timothy R. Wilkerson Assistant Attorney General Attorney at Law 450 James Robertson Parkway 1370 Dewey Avenue Nashville, TN 37243-0493 Kingsport, TN 37664-3655 (Oral Argument) H. Greeley Wells, Jr. District Attorney General P. O. Box 526 Blountville, TN 37617-0526 Edward E. Wilson Asst District Attorney General P. O. Box 526 Blountville, TN 37617-0526 Judge: Hayes First Paragraph: The appellant, Ronald Paul, appeals as of right from his convictions of three counts of rape, one count of aggravated sexual battery, and two counts of sexual battery. The trial court imposed an effective sentence of thirty-two years. The appellant's sole issue on appeal is whether the testimony of a nurse practitioner, which identified the appellant as the perpetrator of sex offenses upon the victim, was error. URL:http://www.tba.org/tba_files/TCCA/paulr_opn.WP6 Opinion-Flash STATE OF TENNESSEE vs. GREG POPE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Lionel R. Barrett, Jr. John Knox Walkup Attorney at Law Attorney General & Reporter Washington Square Two, Suite 417 500 Charlotte Avenue 222 Second Avenue, North Nashville, TN 37243-0497 Nashville, TN 37201 (Appeal Only) Peter M. Coughlan Assistant Attorney General Robert W. Newman 450 James Robertson Parkway Attorney at Law Nashville, TN 37243-0493 308 West Main Street McMinnville, TN 37110 William M. Locke (Trial Only) District Attorney General P.O. Box 410 McMinnville, TN 37110-0410 Thomas J. Miner Asst District Attorney General P.O. Box 410 McMinnville, TN 37110-0410 Judge: Jones First Paragraph: The appellant, Greg Pope (defendant), was convicted of driving while under the influence (DUI), third offense, a Class A misdemeanor, and failing to yield to an emergency vehicle, a Class C misdemeanor, by a jury of his peers. The trial court imposed a sentence consisting of an $1,100 fine and confinement for eleven months and twenty-nine days in the Warren County Jail in the DUI case. The court suspended all but six months of this sentence and placed the defendant on probation after his release from imprisonment. The court imposed a sentence consisting of confinement for thirty (30) days in the Warren County Jail for failure to yield to an emergency vehicle. The trial court suspended this entire sentence and placed the defendant on probation. However, the two sentences are to be served consecutively. In this Court, the defendant contends the evidence contained in the record is insufficient, as a matter of law, to support his conviction for DUI. After a thorough review of the record, the briefs submitted by the parties, and the law governing the issue presented for review, it is the opinion of this Court that the judgment of the trial court should be affirmed. URL:http://www.tba.org/tba_files/TCCA/POPEG_OPN.WP6 Opinion-Flash STATE OF TENNESSEE vs. PAUL MAX QUANDT, JR. Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: PAUL MAX QUANDT, JR. JOHN KNOX WALKUP Pro Se Attorney General & Reporter 3145 Old Estill Springs Road Winchester, Tennessee 37398 PETER M. COUGHLAN Assistant Attorney General 450 James Robertson Parkway Nashville, Tennessee 37243 STEPHEN M. BLOUNT Asst District Attorney General 1 South Jefferson Street Winchester, Tennessee 37398 Judge: WALKER First Paragraph: The defendant appeals, pro se, a jury verdict finding him guilty of resisting arrest and simple assault. The jury assessed a fine of $500.00 for resisting arrest and $50.00 for simple assault. The trial judge imposed a sentence of six months, suspended, for resisting arrest, and six months, suspended, for assault, consecutive to the sentence for resisting arrest. The trial judge required one hundred hours of unpaid community service. URL:http://www.tba.org/tba_files/TCCA/QUANDT_WPD.WP6 Opinion-Flash STATE OF TENNESSEE vs. CHARLES W. SANDERSON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: COMER DONNELL JOHN KNOX WALKUP District Public Defender Attorney General and Reporter KAREN G. CHAFFIN JANIS L. TURNER Assistant District PD Assistant Attorney General 213 North Cumberland St. 450 James Robertson Parkway Lebanon, TN 37087 Nashville, TN 37243-0493 TOM P. THOMPSON, Jr. District Attorney General H. DOUGLAS HALL Assistant District Attorney 111 Cherry St. Lebanon, TN 37087-3609 Judge: RILEY First Paragraph: On November 29, 1995, a Wilson County jury found defendant, Charles W. Sanderson, guilty of aggravated burglary, a Class C felony. The trial court sentenced defendant to 15 years as a Range III (45%) Persistent Offender. Defendant challenges both the conviction and sentence. URL:http://www.tba.org/tba_files/TCCA/sandercw_opn.WP6 Opinion-Flash ANTHONY E. SANDERS vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Anthony E. Sanders, Pro Se Charles W. Burson P.O. Box 2000 Attorney General & Reporter Wartburg, TN 37887 Peter M. Coughlan Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 Randall E. Nichols District Attorney General City-County Building Knoxville, TN 37902 Judge: SUMMERS First Paragraph: The appellant, Anthony E. Sanders, pled guilty to aggravated assault and felony escape in January 1992. In April 1996, he filed two post conviction relief petitions. The trial court, after preliminary consideration, ruled that both petitions were time-barred. He appeals the trial court's dismissal of his petitions. He alleges that this Court's holding in State v. Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville, June 20, 1996) renders the indictment brought against him for felony escape fatally defective. URL:http://www.tba.org/tba_files/TCCA/sandercw_opn.WP6 Opinion-Flash STATE OF TENNESSEE vs. WILLIAM LYNDELL TODD Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Guy T. Wilkinson John Knox Walkup District Public Defender Attorney General & Reporter P.O. Box 663 500 Charlotte Avenue Camden, TN 38320 Nashville, TN 37243-0497 (Appeal Only) Sarah M. Branch Larry G. Bryant Assistant Attorney General Assistant Public Defender 450 James Robertson Parkway P.O. Box 663 Nashville, TN 37243-0493 Camden, TN 38320 (Trial Only) G. Robert Radford District Attorney General P.O. Box 686 Huntingdon, TN 38344-0686 Todd A. Rose Asst District Attorney General P.O. Box 94 Paris, TN 38242-0094 Judge: Jones First Paragraph: The appellant, William Lyndell Todd (defendant), was convicted of aggravated sexual battery, a Class B felony, by a jury of his peers. The trial court found the defendant was a standard offender and imposed a Range I sentence consisting of confinement for eight (8) years in the Department of Correction. In this Court the defendant contends (a) the evidence is insufficient to support a finding by a rational trier of fact that he was guilty of aggravated sexual battery and (b) the trial court committed error of prejudicial dimensions by failing to instruct the jury on the lesser included offense of assault. After a thorough review of the record, the briefs submitted by the parties, and the law governing the issues presented for review, it is the opinion of this Court that the judgment of the trial court should be affirmed. URL:http://www.tba.org/tba_files/TCCA/toddwl_opn.WP6 Opinion-Flash STATE OF TENNESSEE vs. TYRONE W. VANLIER, SR. Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Roger K. Smith Charles W. Burson Attorney at Law Attorney General & Reporter Suite 115 104 Woodmont Boulevard Peter M. Coughlan Nashville, TN 37205 Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 Victor S. Johnson III District Attorney General Lila Statom Asst District Attorney General Washington Square, Suite 500 222-2nd Avenue North Nashville, TN 37201-1649 Judge: SUMMERS First Paragraph: The appellant, Tyrone W. Vanlier, Sr., was convicted by a jury of two counts of rape of a child. He was sentenced to twenty-one years for each count with the sentences to be served consecutively. On appeal, the appellant presents three issues for our review: (1) whether the evidence was sufficient to support the jury verdict of guilt beyond a reasonable doubt; (2) whether the trial court properly applied Tenn. Code Ann. SS 40-35-114(5), (6), (7), and (9) (Supp. 1993) as enhancement factors; and (3) whether the trial court properly imposed consecutive sentences pursuant to Tenn. Code Ann. S 40-35-115(b)(5) (1990). We affirm the appellant's convictions and remand for resentencing as to the issue of consecutive sentences. URL:http://www.tba.org/tba_files/TCCA/vanliert_opn.WP6

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