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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- 00-New Opinons From TSC-Rules
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- 07-New Opinons From TCA
- 08-New Opinons From TCCA
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DEBORAH ELLIS vs. NATIONAL UNION INSURANC COMPANY and SUE ANN HEAD Court:TSC - Workers Comp Panel Attorneys: For Appellant: For Appellee, Deborah Ellis: J. Bartlett Quinn Thomas L. Wyatt Fleissner, Cooper, Marcus & Quinn Summers & Wyatt Chattanooga, Tennessee Chattanooga, Tennessee For Appellee, Second Injury Fund: John Knox Walkup Attorney General & Reporter Sandra E. Keith Assistant Attorney General 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's insurer and the Second Injury Fund contend the evidence preponderates against the trial court's finding that the employee's asthma is compensable; and the employer's insurer contends the condition is not permanent. As discussed below, the panel concludes the judgment should be affirmed. URL:http://www.tba.org/tba_files/TSC_WCP/ellivnat_doc.WP6 STEVEN COBB vs. JOSEPH VINSON, Chairman LCRCF Disciplinary Board, et al Court:TCA Attorneys: STEVEN COBB, pro se Henning, Tennessee JOHN KNOX WALKUP Attorney General and Reporter SOHNIA W. HONG Assistant Attorney General Attorneys for Appellee Judge:HIGHERS First Paragraph: Stephen Cobb ("petitioner") filed a pro se Petition for Writ of Certiorari in the Circuit Court of Lake County against Joseph Vinson, Chairman of the Lake County Regional Correctional Facility disciplinary board ("LCRCF"); Billy Compton, warden of LCRCF; and Donal Campbell ("commissioner"), commissioner of the Tennessee Department of Correction (collectively "respondents") seeking court review of actions taken by the prison disciplinary board, prison warden, and department commissioner. Due process violations resulting therefrom were also alleged. The trial court granted respondents' motion for dismissal for improper venue and petitioner has appealed. On appeal, a single issue was presented for our review: whether the trial court erred in granting respondents' motion to dismiss for improper venue. For reasons state hereinafter, we reverse the judgment of the trial court and remand. URL:http://www.tba.org/tba_files/TCA/cobbs_opn.WP6 URL:http://www.tba.org/tba_files/TCA/cobbs_con.WP6 BRIAN KEITH FEATHER vs. DOLLY DEKRAFFT FEATHER Court:TCA Attorneys: Clinton S. Swafford, SWAFFORD, PETERS & PRIEST, Winchester, Tennessee Attorney for Plaintiff/Appellant. Lucinda E. Smith, DODSON, PARKER & BEHM, Nashville, Tennessee Attorney for Plaintiff/Appellee. Judge:FARMER First Paragraph: This somewhat protracted litigation began in August 1993 when Brian Keith Feather (Husband) filed for divorce from Dolly deKrafft Feather (Wife). A divorce decree was entered by the chancery court in September 1994, which, inter alia, dissolved the fifteen year marriage of the parties and determined custody of their four minor children. Separate orders pertaining to the case were entered by the trial court in August and October, 1995, respectively. Both parties appealed therefrom, but this Court in April 1996, determined that the parties' respective appeals were from a nonfinal judgment. Litigation thereafter continued due to the parties' filings of various petitions for contempt, to rehear and to modify custody. After additional hearings, the trial court entered its final judgment in December 1996 from which both parties have appealed. The primary issues before us concern the trial court's decisions regarding child custody and classification and division of the marital estate. For the reasons hereinafter stated, we affirm as modified. URL:http://www.tba.org/tba_files/TCA/featherb_opn.WP6 JOSEPH ANTHONY GANNON and GLORIA C. GANNON vs. ROBERT KOCH and DEBORAH KOCH Court:TCA Attorneys: Brad W. Hornsby BULLOCK, FLY & MCFARLAND 301 N. Spring Street P.O. Box 398 Murfreesboro, TN 37133-0398 ATTORNEY FOR PLAINTIFFS/APPELLEES Robert A. Maness MARKS, SHELL, MANESS & MARKS 114 S. 2nd Street P.O. Box 1149 Clarksville, TN 37041-1149 ATTORNEYS FOR DEFENDANTS/APPELLANTS Judge:TODD First Paragraph: The defendants, Robert and Deborah Koch, have appealed from a non jury judgment that plaintiffs, Joseph and Gloria Gannon, have a private easement from their land across the land of defendants for access to the public way. URL:http://www.tba.org/tba_files/TCA/gannonja_opn.WP6 LINDA LEE HOLLINGSWORTH vs. JAMES DAVID HOLLINGSWORTH Court:TCA Attorneys: Rose Palermo, BPR #3330 P.O. Box 121857 Nashville, TN 37212 ATTORNEY FOR PLAINTIFF/COUNTER-DEFENDANT/APPELLEE Lucinda E. Smith, BPR #5056 DODSON, PARKER & BEHM, P.C. 306 Gay Street, Suite 400 P.O. Box 198066 Nashville, TN 37219-8066 ATTORNEY FOR DEFENDANT/COUNTER-PLAINTIFF/APPELLANT Judge:TODD First Paragraph: In this divorce case, the defendant-counter claimant husband has appealed from the judgment of the Trial Court dismissing the husband's counterclaim; granting the wife a divorce on grounds of inappropriate marital conduct, $750 per month alimony until her death or remarriage, and $10,000.00 attorneys fees; and dividing the marital estate. URL:http://www.tba.org/tba_files/TCA/hollinsw_opn.WP6 JAMES B. OLIVER vs. HARRIET C. UPTON Court:TCA Attorneys: RICHARD DANCE DANCE, DANCE & LANE Nashville, Tennessee Attorney for Appellant DONALD J. SERKIN Nashville, Tennessee Attorney for Appellee Judge:HIGHERS First Paragraph: Defendant Harriet C. Upton, now known as Harriet Cathey, appeals the trial court's final judgment awarding Plaintiff/Appellee James B. Oliver the sum of $15,225.66, continuing in effect the lis pendens filed against the subject property pending Cathey's satisfaction of the judgment, denying Cathey's request for attorney's fees, and assessing forty percent (40%) of the costs against Cathey. We affirm the judgment in part (with modifications), reverse in part, and remand for further proceedings. URL:http://www.tba.org/tba_files/TCA/oliverjb_opn.WP6 PATTY M. RICHARDS vs. O'CONNOR MANAGEMENT, INCORPORATED and RUSS HACKETT Court:TCA Attorneys: James R. Tomkins, GLASGOW & VEAZEY, Nashville, Tennessee Attorney for Plaintiff/Appellant. M. Bradley Gilmore, Christina Norris, PARKER, LAWRENCE, CANTRELL & DEAN, Nashville, Tennessee Attorneys for Defendants/Appellees. Judge:FARMER First Paragraph: Plaintiff Patty M. Richards appeals the trial court's order granting the motion for summary judgment filed by Defendants/Appellees O'Connor Management, Inc., and Russ Hackett. In entering summary judgment in favor of the Defendants, the trial court dismissed Richards' claims for outrageous conduct and false imprisonment. We affirm in part, reverse in part, and remand for further proceedings. URL:http://www.tba.org/tba_files/TCA/richarpm_opn.WP6 STATE OF TENNESSEE vs. BERRY BOWLS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: A.C. WHARTON JOHN KNOX WALKUP Public Defender Attorney General & Reporter EDWARD G. THOMPSON KENNETH RUCKER Asst. Public Defender Asst. Attorney General 201 Poplar, Suite 201 425 Fifth Ave. North Memphis, TN 38103 Nashville, TN 37243-0493 (On Appeal) JOHN W. PIEROTTI TERESA JONES District Attorney General Asst. Public Defender (At the Hearing) PERRY HAYES Asst. District Attorney General 201 Poplar, Suite 301 Memphis, TN 38103 Judge:PEAY First Paragraph: The defendant was indicted on February 15, 1996, for the aggravated assault of his girlfriend, Jerlean Irvin. On August 26, 1996, he pled guilty to simple assault and agreed to a sentence of eleven months, twenty-nine days. He also agreed to pay a fifty dollar ($50) fine. Following a sentencing hearing, the trial court ordered the defendant to serve his sentence in the Shelby County Correction Center. The defendant now appeals and argues that the trial court erred by not suspending his sentence. URL:http://www.tba.org/tba_files/TCCA/bowlsb_opn.WP6 STATE OF TENNESSEE vs. KELVIN WADE CLOYD Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: H. Randolph Fallin John Knox Walkup Attorney at Law Attorney General & Reporter 303 West Main Street Mountain City, TN 37683 Clinton J. Morgan Counsel for the State 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 David E. Crockett District Attorney General Joe C. Crumley and Michael LaGuardia Asst District Attorneys General P.O. Box 38 Jonesborough, TN 37659 Judge:SUMMERS First Paragraph: Kelvin Wade Cloyd, the appellant, was convicted of two counts of vehicular homicide and possession of a controlled substance in the Washington County Criminal Court. The issue on appeal is whether the evidence is sufficient to sustain the jury's verdict on the homicide counts. The judgment of the trial court is affirmed. URL:http://www.tba.org/tba_files/TCCA/cloydkel_opn.WP6 STATE OF TENNESSEE vs. MICHAEL DAVENPORT Court:TCCA Attorneys: FOR THE APPELLEE: FOR THE APPELLANT: JAMES P. SMITH, JR. JOHN KNOX WALKUP 300 Thurman Avenue Attorney General and Reporter Crossville, TN 38555 TIMOTHY F. BEHAN Assistant Attorney General 425 Fifth Avenue, North Nashville, TN 37243-0493 BILL GIBSON District Attorney General BEN FANN Assistant District Attorney 145 South Jefferson Street Cookeville, TN 38501 Judge:SMITH First Paragraph: Appellee Michael Davenport was indicted on June 13, 1992 for attempted first degree murder, aggravated assault, and two counts of reckless endangerment. The prosecution, on its own motion, asked that the aggravated assault charge be dismissed, and the trial court did so on November 19, 1992. On November 20, 1992, Appellee was convicted by a jury in the Cumberland County Criminal Court of aggravated assault. As a Range I standard offender, Appellee was sentenced to five years confinement with the Tennessee Department of Correction. This Court affirmed Appellee's conviction. State v. Michael Davenport, C.C.A. No. 03C01-9310-CR-00342, Cumberland County (Tenn. Crim. App., Knoxville, December 21, 1994). On January 28, 1997, Appellee filed a petition for writ of habeas corpus and/or post-conviction relief, relying upon the Tennessee Supreme Court's decision in State v. Trusty, 919 S.W.2d 305 (Tenn. 1996). After hearing the arguments of counsel, the trial court granted Appellee's petition for writ of habeas corpus in light of the Trusty decision. The State presents the following issue for our consideration on this appeal: whether the trial court erred in granting Appellee's petition for writ of habeas corpus. URL:http://www.tba.org/tba_files/TCCA/davenpmi_opn.WP6 WILLIE L. HICKS vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: GERALD STANLEY GREEN JOHN KNOX WALKUP 147 Jefferson Ave., Ste 115 Attorney General & Reporter Memphis, TN 38103 SANDY C. PATRICK Assistant Attorney General Criminal Justice Division 2nd Floor Cordell Hull Building 425 Fifth Ave. North Nashville, TN 37243-0943 H. GREELEY WELLS District Attorney General BARRY STAUBUS Asst District Attorney General P.O. Box 526 Blountville, TN 37617 Judge:WITT First Paragraph: The petitioner, Willie L. Hicks, appeals pursuant to Rule 3, Tennessee Rules of Criminal Procedure, from the Sullivan County Criminal Court's denial of post-conviction relief. The petitioner pleaded guilty in 1994 of the first-degree murder of Yolanda Riley and the second-degree murder of her sister, Jennifer Riley. In accordance with the plea agreement, he received a life sentence with the possibility of parole in the first-degree murder conviction and a consecutive sentence of fifteen years for second-degree murder. On March 27, 1996, retained counsel filed a timely petition for post-conviction relief alleging that the attorneys who represented the petitioner during the plea bargaining and the submission of the plea were ineffective and that the guilty plea was entered involuntarily. After an evidentiary hearing, the post-conviction judge entered a thorough and detailed memorandum order finding that Hicks had received effective assistance of counsel and that the guilty pleas were entered knowingly and voluntarily. Therefore, the lower court denied Hicks's petition for post-conviction relief. URL:http://www.tba.org/tba_files/TCCA/hicksw_opn.WP6 STATE OF TENNESSEE vs. KEITH A. JACKSON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CHARLES E. WALDMAN JOHN KNOX WALKUP 147 Jefferson Ave. Attorney General & Reporter Suite 1102 Memphis, TN 38103 GEORGIA BLYTHE FELNER Counsel for the State John Sevier Building 425 Fifth Ave. North Nashville, TN 37243-0493 JOHN W. PIEROTTI District Attorney General LEE COFFEE Asst. District Attorney General 201 Poplar, Suite 301 Memphis, TN 38103 Judge:PEAY First Paragraph: The defendant was indicted in January 1996 on charges of possession with intent to sell an amount of marijuana in excess of ten pounds and possession with intent to deliver marijuana in the same amount. On November 18, 1996, he pled guilty to possession with intent to sell an amount of marijuana under ten pounds, a Class E felony. After a hearing, he was sentenced to one year in the county workhouse and was fined twenty-five hundred ($2,500) dollars. URL:http://www.tba.org/tba_files/TCCA/jacksonk_opn.WP6 STATE OF TENNESSEE vs. DENNIE RAY LODEN Court:TCCA Attorneys: For the Appellant: For the Appellee: Dennie Loden, Pro Se John Knox Walkup 104 Davis Hollow Road Attorney General of Tennessee Kingston, TN 37763 and Michael J. Fahey, II Asst Attorney General of TN 450 James Robertson Parkway Nashville, TN 37243-0493 Charles E. Hawk District Attorney General and Frank A. Harvey Asst District Attorney General P.O. Box 703 Kingston, TN 37763 Judge:Tipton First Paragraph: The defendant, Dennie Ray Loden, appeals as of right from the judgment of the Roane County Criminal Court declaring him to be an Habitual Motor Vehicle Offender (HMVO) who is barred from driving. He contends that res judicata barred the trial court from declaring such status after a previous HMVO petition based upon the same predicate convictions had been dismissed. We affirm the trial court. URL:http://www.tba.org/tba_files/TCCA/lodendr_opn.WP6 STATE OF TENNESSEE vs. ANTHONY EUGENE MOORE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Leslie M. Jeffress John Knox Walkup Attorney at Law Attorney General & Reporter 1776 Riverview Tower 900 S. Gay Street Elizabeth B. Marney Knoxville, TN 37902 Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Randall E. Nichols District Attorney General Leon Franks Asst District Attorney General City-County Building Knoxville, TN 37902 Judge:SUMMERS First Paragraph: In December 1994, Anthony Eugene Moore pled guilty to the sale of less than one-half gram of cocaine and to possession of more than one-half gram of cocaine with the intent to sell. He was sentenced to eight years for intent to sell and to three years for the sale of less than one-half gram, with the sentences to run consecutively. After serving nine months in jail, the appellant was released on the Community Alternatives to Prison Program (CAPP). Once released, the appellant violated the conditions of his probation, and on January 5, 1996, he was arrested. His probation violations were as follows: rule (3), failure to make a full and truthful report to his case manager; rule (8), failure to pay court costs; rule (9), failure to perform community service; rule (10), failure to pay community corrections fees; and rule (14), failure to report. URL:http://www.tba.org/tba_files/TCCA/moreanth_opn.WP6 SHERMAN SANDERS, also known as NEILTON E. SANDERS vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Charles P. Roney John Knox Walkup Attorney at Law Attorney General & Reporter P. O. Box 542 425 Fifth Avenue, North Union City, TN 38281-0542 Nashville, TN 37243-0493 Janis L. Turner Counsel for the State 425 Fifth Avenue, North Nashville, TN 37243-0493 Thomas A. Thomas District Attorney General P. O. Box 218 Union City, TN 38261-0218 James T. Cannon Asst District Attorney General P. O. Box 218 Union City, TN 38261-0218 Judge:Jones First Paragraph: The appellant, Sherman Sanders, also known as Neilton E. Sanders (petitioner), appeals as of right from a judgment of the trial court dismissing his post conviction action following an evidentiary hearing. The trial court found the petitioner was afforded the effective assistance guaranteed by the United States and Tennessee Constitutions; and pleas of guilty entered by the petitioner were voluntarily, understandingly, and intelligently entered. In this court, the petitioner contends the evidence contained in the record preponderates against the trial court's findings of fact. 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 pursuant to Rule 20, Tennessee Court of Criminal Appeals. The evidence clearly does not preponderate against the trial court's findings of fact. URL:http://www.tba.org/tba_files/TCCA/sanderss_opn.WP6
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