April 29, 1999
Volume 5 -- Number 056
What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink from Tennessee's three appellate courts.
|00||New Opinion(s) from the Tennessee Supreme Court|
|00||New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel|
|00||New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court|
|06||New Opinion(s) from the Tennessee Court of Appeals|
|10||New Opinion(s) from the Tennessee Court of Criminal Appeals|
|00||New Judicial Ethics Opinion(s)|
|00||New Formal Ethics Opinion(s) from the Board of Professional Responsibility|
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Lucian T. Pera
LEROY BRANDON VS. ADRIENNE VIVIAN BRANDON Court:TCA Attorneys: JERRY SCOTT JOHN KEA 110 City Center Building 100 West Vine Street Murfreesboro, Tennessee 37133-1216 Attorneys for Plaintiff/Appellee KATHRYN G. BRINTON 43 Music Square West Nashville, Tennessee 37203 JON S. JABLONSKI 2400 Crestmoor Road, Suite 321 Nashville, Tennessee 37215 Attorneys for Defendant/Appellant Judge:CANTRELL First Paragraph: In this divorce case, the trial court divided the marital assets of the parties, ordered a cash payment from the wife to the husband to equalize the division, and ordered an equal division of certain unvested assets of the wife if and when they mature. We affirm the division of property, but reverse the equalization payment, and we reverse in part and modify in part the division of unvested assets. http://www.tba.org/tba_files/TCA/brandonl_opn.WP6
GREGORY HILL, et al VS. CITY OF GERMANTOWN, et al Court:TCA Attorneys: R. Sadler Bailey, Andrew C. Clarke, BAILEY & CLARKE, Memphis, Tennessee Attorneys for Plaintiffs/Appellants Gregory Hill, et al. Louis P. Chiozza, Jr., Memphis, Tennessee Attorney for Plaintiffs/Appellants Ronald Crowder, et al. John C. Duffy, WATSON, HOLLOW & REEVES, Knoxville, Tennessee Attorney for Defendants/Appellees/Cross-Appellants, City of Germantown Judge:FARMER First Paragraph: This appeal involves two separate but consolidated actions arising out of an automobile accident between a vehicle being pursued by two officers of the Germantown Police Department and a vehicle containing Deborah Hill, Amberly Hill, and Walterine Crowder. As a result of the accident, Deborah Hill and Walterine Crowder were killed and Amberly Hill sustained personal injuries. The trial court found that the negligence of the two officers and the City of Germantown was a thirty-five percent proximate cause of the accident and entered a judgment against the City of Germantown in the amount of $130,000.00 for the death Deborah Hill, $130,000.00 for the death of Walterine Crowder, and $52,944.50 for the personal injuries of Amberly Hill. The trial court also awarded the Plaintiffs $25,558.52 in discretionary costs. The Plaintiffs have appealed and the Defendants have cross-appealed. For the reasons set forth below, we affirm the ruling of the trial court. http://www.tba.org/tba_files/TCA/hillgr_opn.WP6
HARRIETT K. JINKS VS. DAVID MERLE JINKS Court:TCA Attorneys: ROBERT S. THOMPSON OF CLEVELAND FOR APPELLANT RANDY G. ROGERS OF ATHENS FOR APPELLEE Judge:GODDARD First Paragraph: David Merle Jinks appeals a Final Decree of Divorce entered by the Circuit Court of Bradley County. Mr. Jinks contends that the Circuit Court erred by not adequately labeling the couple's assets as either marital property or separate property, and, consequently, the division of that property was incorrect. Additionally, Mr. Jinks alleges the award of alimony was inappropriate under the circumstances, or alternatively, that both the amount of the alimony and the duration of the payments are excessive. http://www.tba.org/tba_files/TCA/Jinksha_opn.WP6
GARY MILTON JONES VS. MARY FRANCES JONES Court:TCA Attorneys: Joe P. Binkley, Sr., Nashville, Tennessee Karla C. Hewitt, HATCHETT & HEWITT, Nashville, Tennessee Attorneys for Plaintiff/Appellant. No Appearance by Defendant/Appellee Judge:FARMER First Paragraph: Defendant Gary Milton Jones (Husband) appeals the final decree of divorce entered by the trial court which awarded $5000 in marital property to Plaintiff/Appellee Mary Frances Jones (Wife), awarded the Wife $1700 in attorney's fees, and ordered the Husband to pay court costs and court reporter expenses. We affirm the final divorce decree, with one modification. http://www.tba.org/tba_files/TCA/jonesgm_opn.WP6
WILLIAM H. LANCE, EMMA LEE LANCE VS. LARRY H. STREET d/b/a STREET CONSTRUCTION Court:TCA Attorneys: Grant C. Glassford; Stokes & Bartholomew of Nashville For Plaintiffs-Appellants Warren M. Smith of Nashville For Defendant-Appellee Judge:CRAWFORD First Paragraph: This is a premises liability case. Plaintiffs-Appellants, William H. Lance and Emma Lee Lance, appeal the order of the trial court granting summary judgment to Defendant-Appellee, Larry H. Street d/b/a Street Construction. http://www.tba.org/tba_files/TCA/lancewm_opn.WP6
JONA MCCRACKEN, et al VS. CITY OF MILLINGTON, TENNESSEE Court:TCA Attorneys: John C. Duffy, WATSON, HOLLOW & REEVES, Knoxville, Tennessee Charles A. Sevier, Reid R. Phillips, SEVIER & PHILLIPS, Memphis, Tennessee Attorneys for Defendant/Appellant/Cross-Appellee City of Millington, Tennessee. R. Sadler Bailey, Andrew C. Clarke, BAILEY & CLARKE, Memphis, Tennessee Attorneys for Plaintiff/Appellee/Cross-Appellant. Judge:FARMER First Paragraph: This action for personal injuries and wrongful death arises out of an automobile accident between a vehicle containing two fleeing bank robbery suspects and a vehicle containing Trevor McCracken, his wife Jona McCracken, and their daughter Jessica McCracken. The trial court found that the negligence of two police officers employed by the Defendant City of Millington was a twenty-five percent proximate cause of this accident and ordered the City of Millington to pay $130,000.00 for the wrongful death of Trevor, $46,250.00 for the personal injuries of Jona, $20,077.00 for the personal injuries of Jessica, and $17,335.30 in discretionary costs. Both parties have appealed. Because we find that the trial court should not have awarded damages to Jona under the theory of negligent infliction of emotional distress and further find that the trial court abused its discretion when awarding discretionary costs, we reverse the ruling of the trial court with respect to these issues. In all other respects, the ruling of the trial court is affirmed. http://www.tba.org/tba_files/TCA/mccrackj_opn.WP6
STATE OF TENNESSEE VS. SIDNEY AND DONALD MCGLOWAN Court:TCCA Attorneys: For the Appellants: For the Appellee: Walker Gwinn John Knox Walkup Assistant Public Defender Attorney General and Reporter Memphis, Tennessee (Defendant Sidney McGlowan) Thomas C. Fila Marvin E. Clements, Jr. Memphis, Tennessee Assistant Attorney General (Defendant Donald McGlowan) Nashville, Tennessee John W. Pierotti District Attorney General Memphis, Tennessee Terrell Harris Assistant District Attorney General Memphis, Tennessee Judge:BARKER First Paragraph: The appellants, Sidney McGlowan and Donald McGlowan, appeal as of right from their convictions in Shelby County Criminal Court. Both appellants were convicted of burglary of a building and theft of property with a value greater than $1,000 but less than $10,000. See Tenn. Code Ann. SS39-14-402 (1997) & 39-14- 103 (1997). Appellant Sidney McGlowan was sentenced to serve two concurrent sentences of twelve years, as a career offender. The court sentenced appellant Donald McGlowan to serve two concurrent sentences of six years. http://www.tba.org/tba_files/TCCA/mcglwans_opn.WP6
STATE OF TENNESSEE VS. CHARLES D. MULLINS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: William C. Bright John Knox Walkup Assistant Public Defender Attorney General & Reporter 128 North Second Street 425 Fifth Avenue, North Pulaski, TN 38478 Nashville, TN 37243 OF COUNSEL: Lisa A. Naylor Shara Ann Flacy Assistant Attorney General District Public Defender 425 Fifth Avenue, North 128 North Second Street Nashville, TN 37243 Pulaski, TN 38478 T. Michael Bottoms District Attorney General P. O. Box 459 Lawrenceburg, TN 38464 Stella L. Hargrove Assistant District Attorney General P. O. Box 459 Lawrenceburg, TN 38464 Jesse Durham Assistant District Attorney General P. O. Box 1619 Columbia, TN 38402 Judge:LAFFERTY First Paragraph: The appellant, Charles D. Mullins, referred herein as "the defendant," appeals as of right from a judgment of the Maury County Criminal Court as a result of jury convictions for two counts of aggravated sexual battery. After a sentencing hearing, the trial court imposed Range II sentences of sixteen years for each count. The sentences were ordered to run consecutively in the Department of Correction. http://www.tba.org/tba_files/TCCA/mullinsc_opn.WP6
STATE OF TENNESSEE VS. ROBERT PATTON a/k/a RED PATTON Court:TCCA Attorneys: For the Appellant: For the Appellee: Philip A. Contra John Knox Walkup District Public Defender Attorney General of Tennessee and and Jeffrey Harmon Clinton J. Morgan Assistant Public Defender Assistant Attorney General of Tennessee 200 Betsy Pack Dr. 425 Fifth Avenue North P.O. Box 220 Nashville, TN 37243-0493 Jasper, TN 37347 James Michael Taylor District Attorney General and Will Dunn Assistant District Attorney General 265 Third Avenue Dayton, TN 37321 Judge:TIPTON First Paragraph: The defendant, Robert Patton a/k/a "Red" Patton, appeals as of right following his conviction by a jury in the Rhea County Circuit Court for assault, a Class A misdemeanor. He was originally sentenced to eleven months and twenty-nine days confinement, however the trial court modified the sentence to six months confinement in the Rhea County Jail, with the remainder suspended. On appeal, the defendant contends that (1) the trial court erred by allowing into evidence irrelevant and prejudicial testimony regarding the reaction of young children who witnessed the altercation in issue and (2) the trial court erred by not complying with the sentencing statutes and by not ordering a sentence alternative to confinement. We affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/Pattonr_opn.WP6
MAJOR RICHARDSON, JR. VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: THOMAS H. MILLER JOHN KNOX WALKUP P.O. Box 681662 Attorney General & Reporter Franklin, TN 37068-1662 CLINTON J. MORGAN Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON, III District Attorney General PATTY S. RAMSEY Assistant District Attorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649 Judge:WOODALL First Paragraph: Major Richardson, Jr., the Petitioner, appeals from the order dismissing his petition for post-conviction relief. Petitioner was convicted of aggravated robbery on June 26, 1992, and his conviction was affirmed on appeal by a panel of this court. State v. Major Richardson, Jr., No. 01C01-9301-CR-00016, Davidson County (Tenn. Crim. App., at Nashville, August 19, 1993). In his petition for post-conviction relief, Petitioner alleges that he received ineffective assistance of counsel at trial. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/richdsnm_opn.WP6
RICHARD STANLEY RUSSELL VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Thomas F. Bloom John Knox Walkup 500 Church Street Attorney General of Tennessee Nashville, TN 37219 and Karen M. Yacuzzo Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 Victor S. Johnson, III District Attorney General and Kymberly Haas Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue, North Nashville, TN 37201 Judge:TIPTON First Paragraph: The petitioner, Richard Stanley Russell, appeals as of right from the Davidson County Criminal Court's denial of post-conviction relief. The petitioner was convicted of first degree murder and sentenced to life in the Tennessee Department of Correction. His conviction was affirmed on direct appeal to this court. State v. Richard Stanley Russell, Sr., No. 01C01-9409-CR-00308, Davidson County (Tenn. Crim. App. Oct. 31, 1995), app. denied, (Tenn. Mar. 25, 1996). The petitioner contends that the trial court erred in concluding that he received the effective assistance of counsel at his trial. We disagree. http://www.tba.org/tba_files/TCCA/russelrs_opn.WP6
DAVID HOLLIS SHARP VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DAVID HOLLIS SHARP, Pro Se JOHN KNOX WALKUP Cold Creek Correctional Facility Attorney General & Reporter P.O. Box 1000 Henning, TN 38014-1000 CLINTON J. MORGAN Counsel for the State 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General Criminal Justice Center 201 Poplar Avenue Memphis, TN 38103 Judge:WILLIAMS First Paragraph: The petitioner, David Hollis Sharp, appeals from a judgment of the Shelby County Criminal Court dismissing his petition for post-conviction relief. We AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/sharpdh_wpd.WP6
ERIC D. SHAW VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CLIFFORD K. McGOWN, JR. JOHN KNOX WALKUP 113 North Court Square Attorney General & Reporter P.O. Box 26 Waverly, TN 37185 DOUGLAS D. HIMES (On Appeal) Asst. Attorney General Cordell Hull Bldg., 2nd Fl. JOSEPH P. ATNIP 425 Fifth Ave., North District Public Defender Nashville, TN 37243-0493 P.O. Box 734 121 East Main St. THOMAS A. THOMAS Dresden, TN 38225 District Attorney General JIM CANNON Asst. District Attorney General P.O. Box 218 Union City, TN 38281-0218 Judge:PEAY First Paragraph: The petitioner pled guilty to aggravated robbery and was sentenced as a Range I standard offender to a term of eight years to be served in the Tennessee Department of Correction. The petitioner's subsequent petition for post-conviction relief was denied by the trial court. The petitioner now appeals and contends that he did not receive the effective assistance of counsel. After a review of the record and applicable law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/shawed_opn.WP6
STATE OF TENNESSEE VS. ROBERT P. THURMAN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: N. ANDY MYRICK, JR. JOHN KNOX WALKUP 116 West Market Street Attorney General and Reporter Fayetteville, TN 37334 KIM R. HELPER Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 MIKE McCOWEN District Attorney General WEAKLEY E. BARNARD Assistant District Attorney General P.O. Box 45 Fayetteville, TN 37334 Judge:WELLES First Paragraph: The Defendant, Robert P. Thurman, appeals as of right his convictions and sentences for burglary and theft of property valued less than $500. On April 17, 1998, a jury convicted Defendant of burglary and misdemeanor theft. Following a sentencing hearing, the trial judge sentenced Defendant to eleven months, twenty-nine days for theft and twelve years for burglary, to be served concurrently as a career offender. http://www.tba.org/tba_files/TCCA/thurmarp_opn.WP6
STATE OF TENNESSEE VS. TIMOTHY WALTON Court:TCCA Attorneys: For Appellant: For Appellee: Charles S. Kelly, Attorney John Knox Walkup Kelly, Millar, Strawn & Kelly Attorney General and Reporter P.O. Box 507 802 Troy Avenue Peter M. Coughlan Dyersburg, TN 38025-0507 Assistant Attorney General 425 Fifth Avenue North Cordell Hull Building, Second Floor Nashville, TN 37243-0493 C. Phillip Bivens District Attorney General P.O. Box E Dyersburg, TN 38025-0220 Judge:WADE First Paragraph: The defendant, Timothy Walton, was indicted for burglary, aggravated burglary, and two counts of theft over $500.00. When the trial court overruled the motion to suppress evidence, the defendant entered pleas of guilt to burglary and aggravated burglary and, with the approval of the state, reserved a certified question of law under Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure. http://www.tba.org/tba_files/TCCA/walton_wpd.WP6
STATE OF TENNESSEE VS. JAMES YOUN Court:TCCA Attorneys: For the Appellant: For the Appellee: A.C. Wharton Paul G. Summers District Public Defender Attorney General of Tennessee and and William C. Moore Patricia C. Kussmann Assistant Public Defender Assistant Attorney General of Tennessee 201 Poplar Ave., Ste 201 450 James Robertson Parkway Memphis, TN 38103-1947 Nashville, TN 37243-0493 (AT TRIAL) William L. Gibbons A.C. Wharton District Attorney General District Public Defender and and Daniel S. Byer Tony N. Brayton Assistant District Attorney General Assistant Public Defender 201 Poplar Avenue, Ste 301 Memphis, TN 38103-1947 Memphis, TN 38103-1947 (ON APPEAL) Judge:TIPTON First Paragraph: The defendant, James Young, was convicted by a jury in the Shelby County Criminal Court of second degree murder, a Class A felony, for which he received a twenty-four-year sentence as a Range I, standard offender. He appeals as of right and contends that the evidence is insufficient to support his conviction. We affirm the trial court. http://www.tba.org/tba_files/TCCA/youngj_opn.WP6
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