July 01, 1999
Volume 5 -- Number 091

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.

This Issue (IN THIS ORDER):
 
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
04 New Opinion(s) from the Tennessee Court of Appeals
05 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
Editor-in-Chief, TBALink


HBO DIRECT, INC.
VS.
RUTH E. JOHNSON, Commissioner of    
Revenue, State of Tennessee

Court:TCA

Attorneys:                          
For the Plaintiff/Appellee:     For the Defendant/Appellant: 

Charles A. Trost                John Knox Walkup      
Michael G. Stewart              Steven D. Thomas                
Nashville, Tennessee            Nashville, Tennessee

Bernard Nash
Leslie R. Cohen
Laura B. Feigin
Appearing Pro Hac Vice
Washington, D.C.

Judge:KOCH

First Paragraph:

This case involves a contest of Tennessee sales and use tax assessed by
the defendant Tennessee Commissioner of Revenue.  The plaintiff
satellite programming television company argues that its services are
not taxable telecommunications because, as "broadcast[s] . . . for
public consumption," the satellite television services are excluded from
the definition of taxable telecommunications.  The trial court granted
summary judgment in favor of the plaintiff satellite programming
television company.  The defendant Commissioner appeals.  We affirm.

http://www.tba.org/tba_files/TCA/Hbodirec_opn.WP6



CHERYL LYNN (DOUGLAS) HUMPHREY VS. DAVID ARNOLD HUMPHREY Court:TCA Attorneys: DAVID ARNOLD HUMPHREY TURNEY CENTER 4B/20 ROUTE ONE ONLY, TENNESSEE 37140-9709 DEFENDANT/APPELLANT PRO-SE TIMOTHY L. TAKACS 201 WALTON FERRY ROAD HENDERSONVILLE, TENNESSEE 37077-0364 ATTORNEY FOR PLAINTIFF/APPELLEE Judge:COTTRELL First Paragraph: Appellant David A. Humphrey commenced this pro se appeal to challenge the trial court's Final Decree granting a divorce to Appellee Cheryl Lynn (Douglas) Humphrey on the ground of inappropriate marital conduct. He asserts that the divorce should have been granted to him or the court should have simply declared the parties divorced. He also challenges the trial court's child custody and visitation order, asking that in person visitation be required. Finally, he objects to the assessment of costs against him. http://www.tba.org/tba_files/TCA/Humphrey_opn.WP6
CARL MILLIKEN VS. STEVEN FELDT, LORI FELDT, and ROBERT GASKIN Court:TCA Attorneys: WALTER H. STUBBS 554 West Main Street Gallatin, Tennessee 37066 ATTORNEY FOR PLAINTIFF/APPELLANT CURTIS M. LINCOLN 175 East Main Street, 2nd Floor Hendersonville, Tennessee 37075 ATTORNEY FOR DEFENDANTS/APPELLEES Judge:CAIN First Paragraph: This case involves an appeal from the Sumner County Circuit Court's de novo review of a case from General Sessions Court, in which only one of the General Sessions Defendants perfected an appeal to circuit court. http://www.tba.org/tba_files/TCA/Milliken_opn.WP6
LORI PARR, SUE MURRAY, OLLIE STUART, KEVIN SELLERS, MARY LOU DAVY VS. TOWER MANAGEMENT COMPANY, CEDAR PARK MOBILE HOME ESTATES, CATHY BORN, ANN SNELL Court:TCA Attorneys: LORI PARR, Pro Se 1784 West Northfield Blvd., Box 267 Murfreesboro, Tennessee 37129 SUE MURRAY STEWART, Pro Se 1263 Wenlon Drive Murfreesboro, Tennessee 37130 BARBARA J. PERUTELLI Schulman, LeRoy & Bennett 501 Union Street, 7th Floor P. O. Box 190676 Nashville, Tennessee 37219-0676 Judge:CAIN First Paragraph: This case started with a five page complaint in the Circuit Court of Rutherford County, Tennessee and expanded to occupy the known universe. Plaintiffs, Lori Parr, Sue Murray, Ollie Stuart, Kevin Sellers and Mary Lou Davy, employed attorney, Lawrence H. Hart, to file suit against Tower Management Company, Cedar Park Mobile Home Estates, Cathy Born, and Ann Snell, collectively and individually. http://www.tba.org/tba_files/TCA/Parrlori_opn.WP6
CLAUDE FRANCIS GARRETT VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DWIGHT E. SCOTT JOHN KNOX WALKUP 4024 Colorado Avenue Attorney General and Reporter Nashville, TN 37209 ELIZABETH T. RYAN Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON District Attorney General JOHN ZIMMERMANN Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201-1649 Judge:WELLES First Paragraph: In 1993 the Defendant, Claude Francis Garrett, was convicted of felony murder and sentenced to life imprisonment. On direct appeal to this Court, his conviction was affirmed, and the Tennessee Supreme Court denied the Defendant's application for permission to appeal. The Defendant subsequently filed a petition for post-conviction relief, which was later amended after appointment of counsel. The trial court denied relief on July 15, 1998. Pursuant to Tennessee Code Annotated S 40-30-216 and Rule 3(b) of the Tennessee Rules of Appellate Procedure, the Defendant now appeals as of right the trial court's denial of post-conviction relief. We reverse the order of the trial court and remand for findings of fact and conclusions of law as mandated by statute. http://www.tba.org/tba_files/TCCA/Garrettc_opn.WP6
STATE OF TENNESSEE VS. CALVIN D. HAVNER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: PAUL D. CROSS PAUL G. SUMMERS 1020 West Main Street Attorney General & Reporter P.O. Box 99 Monteagle, TN 37356 CLINTON J. MORGAN Assistant Attorney General 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 JAMES MICHAEL TAYLOR District Attorney General 265 Third Avenue, Suite 300 Dayton, TN 37321 STEVEN H. STRAIN Assistant District Attorney P.O. Box 130 Jasper, TN 37347-0130 Judge:WITT First Paragraph: The defendant, Calvin D. Havner, appeals from his conviction for theft of property over $1000 but less than $10,000, a Class D felony, in the Marion County Circuit Court. The trial court imposed a sentence of two years and six months with the defendant serving eleven months and 29 days in the local jail subject to work release privileges and the remainder on probation. In this direct appeal, the defendant raises two issues: (1) whether the trial court erred in giving a "missing witness" jury instruction and in prohibiting the defendant from testifying that he was afraid of the missing witness, and (2) whether the trial court properly sentenced the defendant by not granting straight probation or community corrections. After a review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Havnerc_opn.WP6
STATE OF TENNESSEE VS. ALLEN R. JORDAN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN H. HENDERSON PAUL G. SUMMERS District Public Defender Attorney General & Reporter LARRY DROLSUM GEORGIA BLYTHE FELNER Assistant Public Defender Assistant Attorney General P.O. Box 68 425 Fifth Ave. N., 2d Floor Franklin, TN 37065-0068 Nashville, TN 37243-0493 JOSEPH D. BAUGH, JR. District Attorney General DEREK K. SMITH Assistant District Attorney General P.O. Box 937 Franklin, TN 37065-0937 Judge:WITT First Paragraph: The defendant, Allen R. Jordan, appeals from his sentence imposed for especially aggravated robbery, a Class A felony, in the Williamson County Circuit Court. After the defendant pleaded guilty, the trial court imposed a sentence of 24 _ years in the Tennessee Department of Correction. In this direct appeal, the defendant challenges the length of the sentence imposed. After a review of the record, the briefs of the parties, and the applicable law, we affirm the sentence. http://www.tba.org/tba_files/TCCA/Jordana_opn.WP6
STATE OF TENNESSEE VS. KENNETH MOATS Court:TCCA Attorneys: For Appellant: For Appellee: George H. Waters John Knox Walkup Independent Contractor Attorney General & Reporter 419 High Street Maryville, TN 37804 Todd R. Kelley Assistant Attorney General 425 Fifth Avenue North 2nd Floor, Cordell Hull Building Nashville, TN 37243-0493 Charles Carpenter Assistant District Attorney General 363 Court Street Maryville, TN 37804 Judge:WADE First Paragraph: The defendant, Kenneth Moats, pled guilty to the voluntary manslaughter of his son, Gene Moats, and the Class E felony reckless endangerment of his granddaughter, Michelle Gribble. The state approved a plea agreement which provided for concurrent three-year and one-year sentences respectively with the trial court to determine the manner of service. After an extensive sentencing hearing, the trial court ruled that the three-year sentence would be suspended after service of ten months in the Blount County Jail. Immediate probation was granted on the one-year sentence. The sole issue on appeal is whether the trial court erred by refusing to grant immediate probation on the three-year term. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Moatsk_opn.WP6
STATE OF TENNESSEE VS. DANIEL M. TIDWELL Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: J. TIMOTHY STREET MICHAEL E. MOORE 136 Fourth Ave., South Solicitor General Franklin, TN 37064 KIM R. HELPER Assistant Attorney General 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 JOSEPH D. BAUGH, JR. District Attorney General LEE DRYER Assistant District Attorney P.O. Box 937 Franklin, TN 37065-0937 Judge:WITT First Paragraph: The defendant, Daniel M. Tidwell, appeals from his conviction for resisting arrest, a Class B misdemeanor, in the Williamson County Circuit Court. The trial court imposed a sentence of six months to be suspended after serving ten days in the local jail. In this direct appeal, the defendant challenges the sufficiency of the evidence and the manner of service of his sentence. After a review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Tidwelld_opn.WP6

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