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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- 07-New Opinons From TCCA
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STATE OF TENNESSEE vs. RAY ANTHONY BRIDGES Court:TSC Attorneys: For Plaintiff-Appellee: For Defendant-Appellant: John Knox Walkup Larry E. Fitzgerald Attorney General & Reporter Memphis, Tennessee Nashville, Tennessee Michael E. Moore Solicitor General Nashville, Tennessee Gordon W. Smith Associate Solicitor General Nashville, Tennessee G. Robert "Gus" Radford District Attorney General Huntingdon, Tennessee First Paragraph: The primary issue in this appeal is whether the warrantless seizure of cocaine from the defendant's person during a detention and frisk was constitutionally permissible under the "plain feel" or "plain touch" doctrine expounded in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). In this case, the trial court denied the defendant's motion to suppress, and thereafter, the defendant pled guilty to possession of cocaine with intent to sell, but reserved the right to appeal the constitutionality of the warrantless seizure pursuant to Tenn. R. Crim. P. 37(b)(2). The Court of Criminal Appeals affirmed the trial court's denial of the motion to suppress. Thereafter, we granted permission to appeal. URL:http://www.tba.org/tba_files/TSC/bridgesr_opn.WP6 TRACY HAWKS and DALE HAWKS vs. CITY OF WESTMORELAND Court:TSC Attorneys: For Plaintiffs-Appellees: For Defendant-Appellant: Bruce N. Oldham J. Russell Farrar Oldham & Dunning, LLC Deborah R. Sowell Gallatin, Tennessee Farrar & Bates Nashville, Tennessee Judge:DROWOTA First Paragraph: The primary issue in this appeal is whether the City of Westmoreland had "constructive notice" of the dangerous and defective condition of the fire hydrants which resulted in the total fire loss of the home of the plaintiffs, Tracey and Dale Hawks. Finding that the inoperable fire hydrants would have been discovered had the City performed an adequate inspection, the lower courts charged the City with constructive notice of the dangerous and defective condition and held it liable to the plaintiffs for the damages that could have been avoided had the fire hydrants been operable. After carefully considering the record, as well as the briefs and argument of counsel, we agree that the City should be charged with constructive notice and, therefore, affirm the judgment of the Court of Appeals upholding the trial court's judgment in favor of the plaintiffs. URL:http://www.tba.org/tba_files/TSC/hawks4_opn.WP6 TIMOTHY PAUL MULLINAX vs. WABASH ALLOYS, CONNELL LIMITED PARTNERSHIP and CIGNA INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: For Appellant: For Appellee: Kitty Boyte Charles L. Hicks Gracey, Ruth, Howard, Tate & Sowell Camden, Tennessee Nashville, Tennessee Judge:Loser First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer and its insurer contend the evidence preponderates against the trial court's finding that the employee has a ten percent permanent medical impairment and in favor of a finding that the employee has a five percent medical impairment rating. As discussed below, the panel has concluded the judgment should be affirmed. URL:http://www.tba.org/tba_files/TSC_WCP/mullinax_opn.WP6 BOATMEN'S BANK OF TENNESSEE vs. STEVEN K. DUNLAP and ABSOLUTELY HILARIOUS PRODUCTS, INC. Court:TCA Attorneys: Harold F. Smith, Jr., Memphis, Tennessee Attorney for Defendants/Appellants. Richard M. Carter, Michael A. Brady, MARTIN, TATE, MORROW & MARSTON, Memphis, Tennessee Attorneys for Plaintiff/Appellee. Judge:FARMER First Paragraph: This appeal has been taken from the trial court's order granting summary judgment in favor of Boatmen's Bank of Tennessee against Steven K. Dunlap and the trial court's order denying the motion to set aside the default judgment entered against Absolutely Hilarious Products, Inc. For the reasons stated herein, we affirm. URL:http://www.tba.org/tba_files/TCA/boatmenb_opn.WP6 GARY L. NORMAN and KATHRYN NORMAN vs. VICKI LYNN PRATHER and RAY PRATHER Court:TCA Attorneys: William A. Cohn of Cordova For Appellants Michael L. Robb, Donna T. Snow of Thomason, Hendrix, Harvey, Johnson & Mitchell of Memphis, For Appellees Judge:CRAWFORD First Paragraph: This case involves a vehicle/pedestrian collision. Plaintiffs, Gary L. Norman and Kathryn Norman, filed suit against defendants Vicki Lynn Prather and Ray Prather for personal injuries sustained by Gary L. Norman when he was struck by a vehicle driven by Vicki Lynn Prather and owned by Ray Prather. The complaint alleges that on June 8, 1993, plaintiff was a pedestrian crossing Central Avenue, north bound, when he was struck by the Prather vehicle proceeding westbound on Central Avenue. The complaint avers that plaintiff was in the turning lane of Central Avenue when he was struck and that Vicki Lynn Prather was operating her vehicle without proper care, failed to operate the vehicle in a reasonable and prudent manner and was operating the vehicle with reckless disregard for the rights and safety of others. The complaint also alleges that Vicki Prather violated the statutes of the State of Tennessee and Ordinances of the City of Memphis, all of which directly and proximately caused a collision and the resulting losses, injuries and damages claimed by plaintiff. Plaintiff further avers that Ray Prather was the owner of the automobile driven by Vicki Prather and that she was driving with his permission and in his service. URL:http://www.tba.org/tba_files/TCA/normanga_opn.WP6 JANET LYNN POSNER vs. ALAN MARTIN POSNER Court:TCA Attorneys: William P. Zdancewica; Dowden & Zdancewica of Memphiis For Appellee Robin H. Rasmussen; Jackson, Shields, Yeiser & Cantrell of Cordova For Appellant Judge:CRAWFORD First Paragraph: This appeal concerns the modification of a marital dissolution agreement incorporated in a final decree of divorce. Plaintiff, Janet Lynn Posner (Wife), and defendant, Alan Martin Posner (Husband), were divorced by final decree entered July 13, 1995. The decree approved and incorporated by reference a marital dissolution agreement (MDA) which, among other things, provided for the joint custody of the minor children with Wife designated as the primary care giver. The agreement specifically provided that Husband would pay child support as established under the child support guidelines pursuant to T.C.A. S 36-5-101 (e). The instant case was spawned by the following provision of the marital dissolution agreement: URL:http://www.tba.org/tba_files/TCA/posnerja_opn.WP6 GRETCHEN BROOKE KAEMMER SMITH vs. KENNETH LEE SMITH Court:TCA Judge:CRAWFORD First Paragraph: This appeal concerns a post-divorce proceeding involving child support and alimony arrearages. The parties, Gretchen Brooke Kaemmer Smith (Wife), and Kenneth Lee Smith (Husband), were divorced by decree entered October 5, 1987. The parties had six children, and the decree incorporated a child custody, support and property settlement agreement. As pertinent to the issues before us on appeal, Wife was awarded custody of the children, child support, alimony in solido, payable in monthly installments, and alimony in futuro, payable in monthly installments. In part of 1995 and 1996, Husband had employment problems and failed to pay all of the monthly installment obligations provided for in the decree. URL:http://www.tba.org/tba_files/TCA/smithgre_opn.WP6 STATE OF TENNESSEE ex rel. DANA INMAN RION vs. PHILIP DURWARD RION Court:TCA Attorneys: John G. Doak of Nashville For Appellant John Knox Walkup, Attorney General and Reporter Kimberly M. Frayn, Assistant Attorney General For Appellee Judge:CRAWFORD First Paragraph: This is a child support case. Philip Rion appeals the order of the trial court which set child support by imputing to ex-wife the average annual income for Tennessee families rather than relying on ex-wife's past earnings and actual earning potential. URL:http://www.tba.org/tba_files/TCA/staterio_opn.WP6 JIMMIE WAYNE WIGGINTON vs. NELLIE FAYE WIGGINTON Court:TCA Judge:CRAWFORD First Paragraph: This is a divorce case. Jimmie Wayne Wigginton appeals the order of the trial court awarding wife alimony in the amount of $1,000 per month for approximately ten years and $10,000 in attorney fees. URL:http://www.tba.org/tba_files/TCA/wigginja_opn.WP6 STATE OF TENNESSEE vs. CLYDE A. EDGESTON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: GEORGE GOOGE JOHN KNOX WALKUP Public Defender Attorney General & Reporter DANIEL J. TAYLOR JANICE L. TURNER Asst. Public Defender Attorney for the State 327 West Baltimore St. 450 James Robertson Pkwy. Jackson, TN 38301 Nashville, TN 37243-0493 JERRY WOODALL District Attorney General NICK NICOLA Asst. District Attorney General P. O. Box 2825 Jackson, TN 38301 Judge:PEAY First Paragraph: The defendant was convicted on April 12, 1993, on six counts of reckless endangerment, vandalism over one thousand dollars ($1000), evading arrest, reckless driving, leaving the scene, driving while his license was in a revoked status, and violation of the motor vehicle registration law. For these convictions he received an effective sentence of eight years and was placed on intensive probation. On August 1, 1994, the defendant was transferred to regular probation. URL:http://www.tba.org/tba_files/TCCA/edgeston_opn.WP6 STATE OF TENNESSEE vs. JAMES E. HATHAWAY Court:TCCA Attorneys: For the Appellant: For the Appellee: Brad S. Tisdale John Knox Walkup 642 Washington, Suite 1 Attorney General and Reporter Memphis, TN 38105 Kenneth W. Rucker Charles Waldman Assistant Attorney General 147 Jefferson Ave. Criminal Justice Division Suite 1101 450 James Robertson Parkway Memphis, TN 38103 Nashville, TN 37243-0493 William Gibbons District Attorney General Terrell L. Harris and David C. Henry Asst. District Attorneys General Criminal Justice Complex, Suite 301 201 Poplar Street Memphis, TN 38103 Judge:Hayes First Paragraph: The appellant, James E. Hathaway, appeals his jury convictions for the crimes of especially aggravated robbery and felony murder. At the conclusion of the penalty phase of the trial, the jury imposed a sentence of life imprisonment without the possibility of parole for the felony murder conviction. The Criminal Court of Shelby County sentenced the appellant to twenty-five years for the especially aggravated robbery conviction, ordering that this twenty-five year sentence run consecutively to the appellant's life sentence. URL:http://www.tba.org/tba_files/TCCA/hathwyje_opn.WP6 KEITH D. HENDERSON vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: James M. Gulley John Knox Walkup Attorney at Law Attorney General & Reporter 80 Monroe Avenue 500 Charlotte Avenue Memphis, TN 38103 Nashville, TN 37243-0497 Marvin E. Clements, Jr. Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Dawn Doran Assistant District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Judge:Jones First Paragraph: The appellant, Keith D. Henderson (petitioner), appeals as of right from a judgment of the trial court dismissing his action for post-conviction relief following an evidentiary hearing. In this court, the petitioner contends his guilty plea to second degree murder was not voluntarily, knowingly, and intelligently entered. He argues the plea is infirm because (1) he was not aware of his constitutional rights or the direct consequences of a guilty plea, (2) neither the trial court nor counsel advised him of the nature of the offense before he entered the plea, and (3) he was not advised of the minimum and maximum penalty for the offense of second degree murder. 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/hndrsnkd_opn.WP6 JOHN EDGAR JUSTICE, JR. vs. JIMMY HARRISON, Warden, and STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: John Edgar Justice, Jr., Pro Se Charles W. Burson C.C.C.F. Attorney General and Reporter P. O. Box 1000 Henning, TN 38041 Deborah A. Tullis Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 Judge:Hayes First Paragraph: The appellant, John Edgar Justice, Jr., appeals as of right the summary dismissal of his petition for writ of habeas corpus. The appellant is currently serving an effective ten to twenty-six year sentence at the Cold Creek Correctional facility in Lauderdale County. On September 19, 1996, the appellant filed three petitions for writ of habeas corpus, alleging that his sentences had expired. The State filed a motion to dismiss alleging that the appellant's sentences do not expire until the year 2008. The trial court granted the State's motion and dismissed the appellant's petition finding "[the appellant] has not made a colorable claim for habeas corpus relief." On appeal, the appellant contends the trial court erred in finding his sentences had not expired. URL:http://www.tba.org/tba_files/TCCA/justicje_opn.WP6 STATE OF TENNESSEE vs. RICHARD CLINT PATTERSON, LINDA CAROL GIBBONS, and ROBERT LEE WALKER Court:TCCA Attorneys: FOR APPELLANT PATTERSON: GUY T. WILKINSON District Public Defender W. JEFFERY FAGAN Assistant District Public Defender 117 North Forrest Avenue Camden, TN 38320 FOR APPELLANT GIBBONS: DAVID H. HORNIK 222 Second Avenue North Suite 360M Nashville, TN 37201-1649 FOR APPELLANT WALKER: N. REESE BAGWELL 116 South Second Street Clarksville, TN 37040 FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter KENNETH W. RUCKER Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 G. ROBERT RADFORD District Attorney General TODD A. ROSE VICKI S. SNYDER Asst. District Attorneys General P.O. Box 686 Huntingdon, TN 37344-0686 Judge:RILEY First Paragraph: The defendants, Richard Clint Patterson, Linda Carol Gibbons and Robert Lee Walker, were convicted by a Henry County jury of one (1) count of manufacturing rock cocaine, one (1) count of simple possession of rock cocaine, one (1) count of simple possession of powder cocaine and one (1) count of possession of unlawful drug paraphernalia. Patterson was also convicted of one (1) count of simple possession of marijuana. URL:http://www.tba.org/tba_files/TCCA/patterrc_opn.WP6 REGINALD THOMPSON vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: HOWARD BRETT MANIS 200 Jefferson Avenue Suite 1313 Memphis, Tennessee 38103 FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter JANIS L. TURNER Assistant Attorney General Cordell Hull Building - 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General JAMES MORTON LAMMEY, JR. Assistant District Attorney General 201 Poplar Avenue Suite 301 Memphis, Tennessee 38103 Judge:RILEY First Paragraph: Appellant, Reginald Thompson, seeks review of the trial court's denial of his petition for post-conviction relief. Appellant pled guilty on September 8, 1994, to four (4) counts of aggravated robbery and one (1) count of attempted aggravated robbery in a negotiated plea agreement. He received ten (10) years on each of the four (4) counts of robbery, concurrent, and five (5) years on the count of attempted aggravated robbery, consecutive, for a total effective sentence of fifteen (15) years. The post-conviction petition, filed October 12, 1995, alleged ineffective assistance of counsel and that counsel had misrepresented the total length of the sentence to be ten (10) years. Appellant also alleged that the plea was not freely, voluntarily, and intelligently entered, indicating that counsel coerced him to plead guilty to crimes he did not commit. The post-conviction court dismissed the petition after an evidentiary hearing. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/thompsor_opn.WP6 MARK LEE TYRE vs. BILLY COMPTON, WARDEN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Mark Lee Tyre, Pro Se John Knox Walkup Lake County Reception Correctional Facility Attorney General & Reporter Route 1, Box 330 500 Charlotte Avenue Tiptonville, TN 38079 Nashville, TN 37243-0497 Elizabeth T. Ryan Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 C. Phillip Bivens District Attorney General P. O. Drawer E Dyersburg, TN 38024 Judge:Jones First Paragraph: The appellant, Mark Lee Tyre (petitioner), appeals as of right from a judgment of he trial court summarily dismissing his action for habeas corpus relief. The trial court held the petitioner is not entitled to habeas corpus relief because his sentences have not expired, and the judgments entered in his case are not void upon the face of the judgments. The petitioner contends he is entitled to maintain an action for habeas corpus to contest the validity of the indictments based upon this court's decision in State v. Roger Dale Hill, Sr., Wayne County No. 01-C-01-9508-CC-00267 (Tenn. Crim. App., Nashville, June 20, 1996). He argues the two counts of the indictment in question failed to set forth the requisite mens rea. URL:http://www.tba.org/tba_files/TCCA/tyreml_opn.WP6
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