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.
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PATRICIA J. GUNBY and JANICE HAMIL vs. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, DAVID BRYAN, and BOB DUNHAM Court:TCA Attorneys: STEPHEN H. BILLER MAURICE WEXLER BAKER, DONELSON, BEARMAN & CALDWELL, P.C. Memphis, Tennessee Attorneys for Appellants TIM EDWARDS JAMES F. HORNER GLASSMAN, JETER, EDWARDS & WADE Memphis, Tennessee Attorneys for Appellees Judge:HIGHERS First Paragraph: In these sexual discrimination/sexual harassment cases, consolidated on appeal, Plaintiffs, Patricia Gunby ("Gunby") and Janice Hamil ("Hamil"), filed suit against Defendants, The Equitable Life Assurance Society of the United States ("The Equitable"), David Bryan ("Bryan") and Bob Dunham ("Dunham"), seeking damages for Defendants' alleged acts of sexual discrimination and sexual harassment. The Defendants filed a motion to compel arbitration and to stay the action pending arbitration or, in the alternative, to dismiss. The trial court denied Defendants' motions. Defendants appeal the judgment of the trial court arguing that the trial court erred in denying Defendants' motion to compel Plaintiffs to submit their claims for sexual harassment and sexual discrimination to arbitration. For the reasons stated hereafter, we reverse the judgment of the trial court. URL:http://www.tba.org/tba_files/TCA/gunbypj_opn.WP6 JESSIE W. JONES and wife, MELISSA A. JONES vs. TIPTON COUNTY, TENNESSEE Court:TCA Attorneys: W. Timothy Hayes, Jr.; The Hardison Law Firm of Memphis, for Appellee Raleigh E. Sanford, Jr. of Rosemark For Appellants Judge:CRAWFORD First Paragraph: This case involves a suit filed pursuant to the Tennessee Governmental Tort Liability Act (TGTLA). Plaintiffs Jessie and Melissa Jones appeal the order of the trial court granting summary judgment to defendant Tipton County, Tennessee. URL:http://www.tba.org/tba_files/TCA/jonesjes_opn.WP6 URL:http://www.tba.org/tba_files/TCA/jonesjes_dis.WP6 WALTER L. WALSH, JR. and PREMIER PROPERTIES PARTNERSHIP, a Tennessee General Partnership BA, INC. f/k/a MEDICAL DEVICES, INC., a Tennessee Corporation, ALAN C. FITZPATRICK and BEVERLY R. FITZPATRICK Court:TCA Attorneys: Timothy A. Ryan, III, Memphis, Tennessee Attorney for Defendants/Appellants. Robert E. Orians, MARTIN, TATE, MORROW & MARSTON, P.C., Memphis, Tn Attorney for Plaintiffs/Appellees. Judge:FARMER First Paragraph: Defendants Alan C. Fitzpatrick and Beverly R. Fitzpatrick appeal the trial court's order which granted the motion for summary judgment filed by Plaintiffs/Appellees Walter L. Walsh, Jr., and Premier Properties Partnership and which awarded the Partnership a judgment of $38,500 on its claim for breach of fiduciary duty against the Fitzpatricks. We reverse the trial court's judgment based on our conclusion that a genuine issue of material fact exists as to whether the Fitzpatricks breached their fiduciary duty to the Partnership when they amended a Partnership lease without the consent of all the partners. URL:http://www.tba.org/tba_files/TCA/walshwl_opn.WP6 BUD CASH, JR. vs. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Douglas A. Trant John Knox Walkup 900 S. Gay Street Attorney General and Reporter Suite 1502 Knoxville, TN 37902 Sandy R. Copous Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 Jerry N. Estes District Attorney General G. Scott Kanavos Assistant District Attorney 93 N. Ocoee Street Cleveland, TN 37364 Judge: Barker First Paragraph: The appellant, Bud Cash, Jr., appeals as of right the dismissal by the Bradley County Criminal Court of his petition for post-conviction relief. URL:http://www.tba.org/tba_files/TCCA/cashb_opn.WP6 STATE OF TENNESSEE vs. CLIFTON EDWARD ELLISON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN H. HENDERSON JOHN KNOX WALKUP District Public Defender Attorney General & Reporter 407 C Main St. P.O. Box 68 GEORGIA BLYTHE FELNER Franklin, TN 37065-0068 Counsel for the State 450 James Robertson Pkwy. Nashville, TN 37243-0493 JOSEPH D. BAUGH District Attorney General DEREK SMITH Asst. District Attorney General P.O. Box 937 Franklin, TN 37065-0937 Judge:PEAY First Paragraph: The defendant was indicted for joyriding, theft and two counts of aggravated assault by use of a deadly weapon. The State nolled the theft charge and one count of aggravated assault. A jury convicted the defendant of joyriding and the remaining count of aggravated assault, Class C. After a hearing, he was sentenced as a Range I standard offender on the felony charge to four years incarceration, suspended, with five years probation. He was sentenced on the joyriding charge to eleven months, twenty-nine days in jail, suspended, with eleven months, twenty-nine days probation, concurrent to the aggravated assault sentence. As a condition of each of his periods of probation, he was ordered to serve one hundred days, day for day, in the county jail. In this direct appeal, the defendant challenges the sufficiency of the evidence on the assault conviction and complains about his sentences. Upon our review of the record, we affirm the judgment below. URL:http://www.tba.org/tba_files/TCCA/ellisonc_opn.WP6 STATE OF TENNESSEE vs. JIMMY D. JOHNSON Court:TCCA Attorneys: For the Appellant: For the Appellee: Raymond Mack Garner Charles W. Burson District Public Defender Attorney General of Tennessee and and Natalee Staats Hurley Robin L. Harris Assistant Public Defender Assistant Attorney General of Tennessee 318 Court Street 450 James Robertson Parkway Maryville, TN 37804-4912 Nashville, TN 37243-0493 Michael L. Flynn District Attorney General and Kirk Andrews Assistant District Attorney General 363 Court Street Maryville, TN 37804-5906 Judge:Tipton First Paragraph: The defendant, Jimmy D. Johnson, appeals as of right from the sentence he received in the Blount County Circuit Court for the offense of incest, a Class C felony. The trial court sentenced the defendant as a Range I, standard offender to five years, requiring him to serve one year in the county jail and four years in the Community Corrections Sex Offenders' Program. URL:http://www.tba.org/tba_files/TCCA/johnsonj_opn.WP6 STATE OF TENNESSEE vs. RANDY A. McDONALD Court:TCCA Attorneys: For the Appellant: For the Appellee: John H. Henderson Charles W. Burson District Public Defender Attorney General of Tennessee 407 Main Street and Franklin, TN 37065-0068 Clinton J. Morgan Asst Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493 Joseph D. Baugh, Jr District Attorney General and Emily Walker Assistant District Attorney General Williamson County Courthouse P.O. Box 937 Franklin, TN 37065-0937 Judge:Tipton First Paragraph: The defendant, Randy A. McDonald, was convicted in the Circuit Court of Williamson County for driving under the influence of an intoxicant (D.U.I.), fourth offense, driving on a revoked license (D.O.R.L.), second offense, and evading arrest, Class A misdemeanors, and reckless driving and resisting arrest, Class B misdemeanors. For the D.U.I. conviction, he was fined one thousand dollars and sentenced to eleven months and twenty-nine days in the county jail with all but nine months at seventy-five percent suspended. The trial court fined the defendant five hundred dollars and sentenced the defendant to eleven months and twenty-nine days in the county jail to be suspended for the evading arrest and D.O.R.L. convictions, respectively. For the reckless driving and resisting arrest, the court imposed fines of five hundred dollars and sentences of six months each to be suspended. The trial court ordered the defendant to serve his sentences for D.O.R.L., evading arrest, reckless driving and resisting arrest concurrent with each other but consecutive to the D.U.I. URL:http://www.tba.org/tba_files/TCCA/mcdonalr_opn.WP6 STATE OF TENNESSEE vs. TONEY L. MOORE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN H. HENDERSON JOHN KNOX WALKUP District Public Defender Attorney General and Reporter LARRY D. DROLSUM GEORGIA BLYTHE FELNER Asst District Public Defender Assistant Attorney General 407 C Main Street 450 James Robertson Parkway P.O. Box 68 Nashville, TN 37243-0493 Franklin, TN 37065-0068 JOSEPH D. BAUGH, JR. District Attorney General JEFF BURKS Asst District Attorney General Williamson County Courthouse Suite G-6 P.O. Box 937 Franklin, TN 37065-0937 Judge:RILEY First Paragraph: The defendant, Toney L. Moore, was convicted by a Williamson County jury of driving after having been declared a Motor Vehicle Habitual Offender pursuant to Tenn. Code Ann. S 55-10-616. He was sentenced to four (4) years in the Tennessee Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence and argues that the trial court erred in denying alternative sentencing. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/mooretl_opn.WP6 STATE OF TENNESSEE vs. TONEY MOORE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN H. HENDERSON JOHN KNOX WALKUP District Public Defender Attorney General & Reporter LARRY D. DROLSUM GEORGIA BLYTHE FELNER Assistant Public Defender Assistant Attorney General 407-C Main St. 450 James Robertson Parkway P.O. Box 68 Nashville, Tennessee 37243 0493 Franklin, Tennessee 37065-0068 JOSEPH D. BAUGH, JR. District Attorney General JEFFREY P. BURKS Asst District Attorney General Williamson County Courthouse Ste. G-6, P.O. Box 937 Franklin, Tennessee 37065 0937 Judge:RILEY First Paragraph: The appellant, Toney Moore, appeals the Williamson County Criminal Court's order revoking his probation and requiring the sentence to be served consecutively to a new conviction. He presents two issues for our review: (1) whether the trial court abused its discretion in failing to reinstate his probation; and (2) whether the trial court erred in requiring the original sentence to be served consecutively to the conviction triggering the probation violation. The judgment of the trial court is AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/mooret_opn.WP6 STATE OF TENNESSEE vs. MARK T. SCISNEY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ROBERT S. PETERS JOHN KNOX WALKUP Swafford, Peters & Priest Attorney General & Reporter 100 First Avenue, S.W. Winchester, TN 37398 DEBORAH A. TULLIS Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 C. MICHAEL LAYNE District Attorney General STEPHEN E. WEITZMAN Asst District Attorney General 307 South Woodland P.O. Box 147 Manchester, TN 37355 Judge: WOODALL First Paragraph: A Coffee County jury found Defendant guilty of driving under the influence while operating a commercial motor vehicle in violation of Tennessee Code Annotated section 55-50-408. He appeals as of right pursuant to Rule 3, Tennessee Rules of Appellate Procedure. In a two (2) prong attack upon the sufficiency of the evidence, Defendant argues that the State failed to prove that his blood alcohol concentration was .04 or more, and also argues that the evidence was insufficient as the State proved his "alcohol by weight" rather than his blood alcohol concentration as required by the statute. The judgment of the trial court is affirmed. URL:http://www.tba.org/tba_files/TCCA/scisneym_opn.WP6 URL:http://www.tba.org/tba_files/TCCA/scisneym_con.WP6 URL:http://www.tba.org/tba_files/TCCA/scisneym_dis.WP6 STATE OF TENNESSEE vs. JEFF WELCH Court:TCCA Attorneys: FOR THE APPELLANT FOR THE APPELLEE Charles W. Burson Philip A. Condra Attorney General & Reporter Public Defender 204 Betsy Park Drive Michael J. Fahey, II P.O. Box 220 Assistant Attorney General Jasper, TN 37347 450 James Robertson Parkway Nashville, TN 37243-0493 David E. Crockett District Attorney General Lisa Nidiffer Rice Assistant District Attorney General Rte. 19 Box 99 Johnson City, TN 37601 Judge: BYERS First Paragraph: The trial court found that a prison disciplinary finding which assessed restitution in the sum of $100.00 against the defendant for damages caused to a prison guard's uniform, when he was assaulted by the defendant, barred the prosecution of the defendant on a charge of assault and battery. URL:http://www.tba.org/tba_files/TCCA/welchj_cca.WP6
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