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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- 03-New Opinons From TCA
- 09-New Opinons From TCCA
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LINDA GRANTHAM and WILBURN GRANTHAM VS. JACKSON-MADISON COUNTY GENERAL HOSPITAL DISTRICT Court:TSC Attorneys: FOR APPELLANTS: FOR APPELLEE: William G. Hatton Jerry D. Kizer, Jr. Bolivar Dale Conder, Jr. Jackson Judge:HOLDER First Paragraph: This appeal addresses a plaintiff's ability to amend a complaint to reflect a defendant's correct name under the relation back provisions of Rule 15.03. The trial court permitted the plaintiffs to amend their complaint. The appellate court reversed, holding that the plaintiffs were precluded from amending their complaint to reflect a new defendant because notice was served on the defendant after the expiration of the statute of limitations. We reverse the appellate court and hold that: (1) the amendment did not name a new party for purposes of Rule 15.03; and (2) the amendment relates back to the original filing of the complaint. URL:http://www.tba.org/tba_files/TSC/granthml_opn.WP6 WILLIAM GAYLE WARREN VS. THE ESTATE OF JERRY N. KIRK, DECEASED AND BELTON DUNCAN d/b/a DELTA TREE SERVICE Court:TSC Attorneys: For Plaintiff-Appellant: For Defendant-Appellee: Joseph C. Langston Stephen Craig Kennedy Langston, Langston, Michael Deusner & Kennedy & Bowen, P.A. Selmer Bonneville, MS Kent E. Smith Webb, Sanders, Deaton, Balducci, Smith & Faulks Oxford, MS Judge:REID First Paragraph: This case presents for review the question of whether summary judgment is appropriate under Tenn. Code Ann. S 55-10-311 (1993), where the defendant asserts in an action for injury caused by the negligent operation of the defendant's automobile, that at the time of the accident, there was no agency or master-servant relationship between the defendant and the driver. URL:http://www.tba.org/tba_files/TSC/warrnwg_opn.WP6 IN RE: AMENDMENT TO RULE 12, RULES OF THE SUPREME COURT OF TENNESSEE Court:TSC - Rules Judge: Anderson First Paragraph: Rule 12 of the Rules of the Supreme Court of Tennessee is hereby amended by deleting the second paragraph of Section 2 in its entirety and substituting in its place the following. URL:http://www.tba.org/tba_files/COURT/FILENAME SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL October 27, 1997 Court:TSC - Rules URL:http://www.tba.org/tba_files/TSC_RULES/rule12_amd.WP6 W. M. BARR & COMPANY, INC. vs. COMMERCIAL UNION INSURANCE COMPANIES Court:TCA Attorneys: For the Plaintiff/Appellee: For the Defendant/Appellant: Carl H. Langschmidt, Jr. Bruce D. Brooke Cannon F. Allen Memphis, Tennessee Memphis, Tennessee Frank C. Bedinger, III, Of Counsel Atlanta, Georgia Judge: LILLARD First Paragraph: In this case, the plaintiff sought to establish the existence and contents of lost insurance policies allegedly issued by the defendant insurance company. The trial court found that the policies existed for the years in question, found the proof sufficient to determine the terms of the policies, and found the defendant responsible for each policy. We affirm in part and reverse in part. URL:http://www.tba.org/tba_files/TCA/barrwm_opn.WP6 JAMES ROBINSON vs. CUNA MUTUAL INSURANCE GROUP Court:TCA Attorneys: Clyde W. Watson of Camden For Plaintiff-Appellee J. Whitten Gurkin of Memphis For Defendant-Appellant Judge:CRAWFORD First Paragraph: This case involves a claim under a disability credit insurance policy. Defendant, CUNA Mutual Insurance Group (CUNA), appeals from the order of the trial court denying its motion for summary judgment and granting summary judgment to plaintiff, James Robinson. URL:http://www.tba.org/tba_files/TCA/robinjam_opn.WP6 MOZELLA WRIGHT and CLEVIN WRIGHT vs. CITY OF ROSSVILLE, TENNESSEE Court:TCA Attorneys: Lanier Fogg, Memphis, Tennessee Attorney for Plaintiffs/Appellants. Charles A. Sevier, SEVIER & PHILLIPS, P.C., Memphis, Tennessee Attorney for Defendant/Appellee City of Rossville, Tennessee. Judge:FARMER First Paragraph: Mozella Wright appeals from the judgment of the trial court dismissing her cause of action for personal injuries sustained in an automobile accident against the City of Rossville ("City" or "Appellee"). It is alleged that Mrs. Wright's injuries resulted from the negligence of John Beasley, Jr., a sergeant with the Rossville Police Department. The trial court dismissed the complaint upon finding Mrs. Wright 50% or more negligent after a bench trial. For reasons expressed below, we affirm. URL:http://www.tba.org/tba_files/TCA/wrightmo_opn.WP6 STATE OF TENNESSEE vs. TYRONE CLAY Court:TCCA Attorneys: For the Appellant: For the Appellee: VANEDDA PRINCE CHARLES W. BURSON Post Office Box 26 Attorney General and Reporter Union City, TN 38261 (ON APPEAL) GEORGIA BLYTHE FELNER Assistant Attorney General Criminal Justice Division STEVE DAVIS 450 James Robertson Parkway District Public Defender Nashville, TN 37243-0493 P. O. Box 742 Dyersburg, TN 38025-0742 C. PHILLIP BIVENS (AT TRIAL) District Attorney General JAMES E. LANIER Asst. District Attorney General P. O. DRAWER E DYERSBURG, TN 38024 Judge: Hayes First Paragraph: The appellant, Tyrone Clay, presents a delayed appeal challenging the length of sentences imposed by the Lake County Circuit Court. On the morning of the appellant's scheduled trial, a plea agreement was reached, whereby the appellant agreed to plead guilty to three class B felony sales of cocaine in exchange for three concurrent sentences as a range I offender. The State had previously filed notice of its intent to seek enhanced punishment of the appellant as a range II, multiple offender based upon allegations of four prior felony convictions. The trial court subsequently sentenced the appellant to three concurrent eleven year sentences for these offenses. In this appeal, the appellant specifically contends that the trial court failed to consider applicable mitigating factors which resulted in an excessive sentence. URL:http://www.tba.org/tba_files/TCCA/clayt_opn.WP6 URL:http://www.tba.org/tba_files/TCCA/clayt_con.WP6 STATE OF TENNESSEE VS. TERESA FITHIAM Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: SUSANNA L. THOMAS JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter 102 Mims Avenue Newport, TN 37821 MARVIN E. CLEMENTS, JR. Assistant Attorney General 425 5th Avenue North Nashville, TN 37243 AL SCHUMTZER, JR. District Attorney General JAMES B. DUNN Asst District Attorney General 339A East Main Street Newport, TN 37821 Judge:WELLES First Paragraph: This is a direct appeal from a guilty plea pursuant to Rule 37(b)(2)(ii) of the Tennessee Rules of Criminal Procedure. Pursuant to a plea agreement, the Defendant pleaded guilty to one count of DUI and one count of child endangerment. Both offenses are Class A misdemeanors. As part of the agreement, she was sentenced to a forty-eight (48) hour mandatory incarceration plus eleven (11) months and twenty-seven (27) days of probation for the DUI conviction and a mandatory thirty (30) day incarceration plus ten (10) months and twenty-nine (29) days of probation for the child endangerment conviction. Also, the Defendant reserved the right to appeal the "legality" of her sentence. In this appeal, she argues that the statute imposing a mandatory thirty-day incarceration period for child endangerment is unconstitutional as cruel and unusual punishment violative of the Eighth and Fourteenth Amendments to the United States Constitution. We dismiss the appeal and affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/fithiamt_opn.WP6 STATE OF TENNESSEE vs. CONNIE L. FULTON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ROBERT M. BRANNON, JR. JOHN KNOX WALKUP 295 Washington, Suite 3 Attorney General & Reporter Memphis, TN 38103 DEBORAH A. TULLIS Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 JOHN W. PIEROTTI District Attorney General PERRY HAYES Asst District Attorney General 201 Poplar Street, Suite 301 Memphis, TN 38103 Judge:WOODALL First Paragraph: The Defendant, Connie L. Fulton, appeals as of right the determination of the Shelby County Criminal Court that the sentences she received for various convictions should be served by incarceration and not by alternative sentencing. The Defendant entered guilty pleas to three counts of theft, one count of reckless driving, and one count of driving a motor vehicle while her license was revoked, canceled, or suspended. Pursuant to a negotiated plea agreement, the Defendant was sentenced to two years as a Range I Standard Offender for her conviction for theft over $500. This sentence was ordered to be served concurrently with her two nine-month sentences for theft under $500, her 90-day sentence for reckless driving, and her 90-day sentence for driving while her license was revoked, suspended, or canceled. After an evidentiary hearing, the trial court ordered the sentences to be served totally by incarceration. In her sole issue on appeal, the Defendant argues that the trial court erred in denying her alternative sentencing. We affirm the judgments of the trial court. URL:http://www.tba.org/tba_files/TCCA/fultonc_opn.WP6 RICKY HARRIS vs. BILLY COMPTON, WARDEN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: RICKY HARRIS, PRO SE JOHN KNOX WALKUP #121445, L.C.R.C.F Attorney General & Reporter Route 1, Box 330 Tiptonville, TN 38079-9775 CLINTON J. MORGAN Asst Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 C. PHILLIP BIVENS District Attorney General P.O. Drawer E Dyersburg, TN 38024 Judge:WOODALL First Paragraph: Petitioner, Ricky Harris, appeals the trial court's denial of his petition for writ of habeas corpus. The Petitioner was indicted and pled guilty to a forgery charge. Subsequently he was convicted of first degree murder. Currently, Petitioner is serving a life sentence on the first degree murder conviction which is consecutive to a three-year sentence for forgery. In this appeal, the Petitioner, relying on State v. Roger Dale Hill, C.C.A. No. 01C01 9508-CC-00267, Wayne County (Tenn. Crim. App., Nashville, June 20, 1996), perm. to app. granted, (Tenn. 1996), contends the judgment entered against him on the forgery charge is void because the indictment failed to allege the mens rea of the offense. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/harrisr_opn.WP6 STATE OF TENNESSEE vs. MELVIN EDWARD HENNING Court:TCCA Attorneys: For the Appellant: For the Appellee: C. MICHAEL ROBBINS JOHN KNOX WALKUP 202 S. Maple, Suite C Attorney General and Reporter Covington, TN 38019 ON APPEAL ELIZABETH T. RYAN Assistant Attorney General GEORGE MORTON GOOGE Criminal Justice Division District Public Defender 450 James Robertson Parkway 227 W. Baltimore Street Nashville, TN 37243 0493 Jackson, TN 38301 AT TRIAL JAMES G. (JERRY) WOODALL District Attorney General DONALD H. ALLEN Asst. District Attorney General P. O. Box 2825 Jackson, TN 38302 Judge:Hayes First Paragraph: The appellant, Melvin Edward Henning, appeals his Madison County jury convictions for the crimes of attempted first degree murder, attempted second degree murder, two counts of aggravated assault, and possession of a deadly weapon during the commission of a felony. Following the sentencing hearing, the trial court sentenced the appellant, as a range I offender, to twenty-four years for attempted first degree murder and to eleven years for attempted second degree murder; and, as a range II offender, to nine years for each aggravated assault conviction and to three years for the weapons conviction. The trial court further ordered that the two attempted homicide convictions run consecutively to each other but concurrent with all remaining sentences, for a total effective sentence of thirty-five years in the Tennessee Department of Correction. URL:http://www.tba.org/tba_files/TCCA/henningm_opn.WP6 STATE OF TENNESSEE VS. ERNEST LEON POWERS, JR. Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: LYNN DOUGHERTY JOHN KNOX WALKUP HUDSON & DOUGHERTY Attorney General & Reporter 131 Eighth Street P.O. Box 189 KENNETH W. RUCKER Bristol, TN 37621 Assistant Attorney General 425 Fifth Avenue North 2nd Floor, Cordell Hull Building Nashville, TN 37243 H. GREELEY WELLS, JR. District Attorney General PHYLLIS H. MILLER Asst District Attorney General BARRY P. STAUBUS Asst District Attorney General P.O. Box 526 Blountville, TN 37617-0526 Judge:WOODALL First Paragraph: The Defendant, Ernest Leon Powers, Jr., was convicted of felony murder, in the perpetration of robbery, and especially aggravated robbery following a jury trial in the Sullivan County Criminal Court. Defendant was sentenced to life imprisonment on the felony murder conviction, and the trial court sentenced him to twenty (20) years for the conviction of especially aggravated robbery. The sentences were ordered to be served consecutively. In this appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, Defendant presents five issues: (1) The trial court erred by denying his motion to suppress statements taken from Defendant by law enforcement officers in violation of his protection against self-incrimination and his right to counsel; (2) the evidence was insufficient to sustain the convictions of felony murder and especially aggravated robbery; (3) the trial court erred by overruling his objection to the admissibility of a photograph of the victim which the Defendant argues the probative value was far outweighed by the prejudicial effect; (4) the trial court erred in denying his motion for new trial based upon an alternate juror falsely swearing during voir dire; and (5) the trial court erred by ordering the sentences to be served consecutively. Finding the evidence to be sufficient and no reversible error, we affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/powersel_opn.WP6 SHANNON L. SMITH, KEITH VERSIE AND MICHAEL L. WOFFORD vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Richard B. Fields John Knox Walkup Attorney at Law Attorney General & Reporter 699 Jefferson Avenue 500 Charlotte Avenue Memphis, TN 38105 Nashville, TN 37243-0497 George Kendricks Michael J. Fahey, II L. Song Richardson Assistant Attorney General Attorneys at Law 450 James Robertson Parkway 99 Hudson Street, Suite 1601 Nashville, TN 37243-0493 New York, NY 10013 William L. Gibbons Steven W. Hawkins District Attorney General Attorney at Law 201 Poplar Avenue, Suite 3-01 918 F Street, N.W., Suite 601 Memphis, TN 38103 Washington, DC 20004 John W. Campbell Asst District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Judge: Jones First Paragraph: The issue this Court must resolve in this extraordinary appeal is whether the trial court abused its discretion by disqualifying counsel in this post conviction proceeding based upon a conflict of interest amongst the petitioners. After a thorough review of the record, the briefs of the parties, and the law governing the issue presented for review, it is the opinion of this Court the judgment of the trial court should be reversed and this action remanded to the trial court for further proceedings consistent with this opinion. URL:http://www.tba.org/tba_files/TCCA/smithsl_opn.WP6 FREDERICK NATHAN VANN VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Robert W. Ritchie Charles W. Burson 606 W. Main Street Attorney General of Tennessee Suite 300 and P.O. Box 1126 Michael J. Fahey, II Knoxville, TN 37901-1126 Asst Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493 Charles E. Hawk District Attorney General and D. Roger Delp Frank A. Harvey Asst District Attorneys General P.O. Box 703 Kingston, TN 37763 Judge: Tipton First Paragraph: The petitioner Frederick Nathan Vann, appeals as of right from the Morgan County Criminal Court's denial of his petition for post-conviction relief. The petition alleges that this court erred in the petitioner's direct appeal by affirming the denial of his motion to suppress and that the trial court's instruction on premeditation and deliberation violated his due process rights. The trial court dismissed the petition, concluding that the suppression issue had been previously determined and that the petitioner's constitutional rights were not violated by the jury instructions given at his trial. The petitioner now contends that the suppression issue was not previously determined because he was not accorded a full and fair hearing on the issue in the direct appeal. He also contends that the jury instructions violated his constitutional rights. We affirm the trial court's dismissal of the petition. URL:http://www.tba.org/tba_files/TCCA/vannfn_opn.WP6
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