Opinion Flash

March 31, 2004
Volume 10 — Number 062

Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

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
02 New Opinion(s) from the Tennessee Court of Appeals
08 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


PHIL MITCHELL v. JOHN VAN ZYLL, ET AL.

Court:TCA

Attorneys:                          

Phil Mitchell, pro se Appellant. 

Lisa A. Temple, Knoxville, Tennessee, for the Appellee Ann Furlong.

Judge: SWINEY

First Paragraph:

Phil Mitchell ("Plaintiff") sued his next-door neighbors, John Van
Zyll ("Van Zyll") and Ann Furlong ("Furlong"), for malicious
prosecution.  Plaintiff alleged that Van Zyll and Furlong "caused to
be issued against [him] a criminal warrant for his arrest, alleging
aggravated assault and reckless endangerment."  The criminal charges
against Plaintiff were dismissed.  Defendants filed a motion for
summary judgment, which the Trial Court granted as to Furlong but
denied as to Van Zyll.  Plaintiff appeals the Court's ruling in favor
of Furlong.  We affirm.

http://www.tba.org/tba_files/TCA/mitchelp.wpd

TRACIE MARIE SHIPWASH, ET AL. v. MEADOWOOD APARTMENTS

Court:TCA

Attorneys:                          

Jeffrey R. Thompson, Knoxville, Tennessee, for the appellant,
Meadowood Apartments.

T. Scott Jones, Knoxville, Tennessee, for the appellees, Tracie Marie
Shipwash and Dennis Marine.

Judge: SUSANO

First Paragraph:

This is a premises liability case.  Tracie Marie Shipwash and Dennis
Marine sued Meadowood Apartments ("Meadowood") to recover for damage
done to their respective vehicles when a tree located near a parking
area at the apartment complex fell on the vehicles during a severe
storm.  At the bench trial below, the plaintiffs offered the testimony
of a tree expert, who opined that his examination of photographs of
the fallen tree revealed signs of deterioration and that the tree
should have been removed prior to the storm.  The trial court held
that the tree removal service hired by Meadowood to make an annual
inspection of the apartment property was Meadowood's agent, and that,
as a consequence of this fact, Meadowood is liable based upon its
imputed constructive notice of the dangerous condition created by the
tree's condition.  Meadowood appeals.  We reverse.

http://www.tba.org/tba_files/TCA/shipwa.wpd

DARRON CLAYTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Darron Clayton, Pro se.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Thomas E. Williams, III, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Julie B.
Mosley, Assistant District Attorney General, for the appellee, State
of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Shelby County jury convicted the Petitioner, Darron Clayton, of
second degree murder, and the trial court imposed a twenty-year
sentence.  On appeal, this Court affirmed the conviction and the
sentence, and the Tennessee Supreme Court denied the Petitioner's
application for permission to appeal.  The Petitioner filed a pro se
petition for writ of habeas corpus, and the trial court dismissed the
petition without a hearing.  Three months later, the Petitioner filed
a second petition for writ of habeas corpus raising the same issues as
in his first petition, and the trial court again dismissed the
petition.  On appeal, the Petitioner contends that the trial court
erred in dismissing his petition because his sentence is illegal. 
Finding no reversible error, we affirm the trial court's judgment.

http://www.tba.org/tba_files/TCCA/claytondarron.wpd

STATE OF TENNESSEE v. ELROY GAINES

Court:TCCA

Attorneys:                          

Tony N. Brayton (on appeal), Mary K. Kent (at trial), and Robert H.
Gowen (at trial), Assistant Public Defenders, for the appellant, Elroy
Gaines.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Steve Jones, Assistant District Attorney General, for the
appellant, State of Tennessee.

Judge: RILEY

First Paragraph:

A Shelby County jury convicted the defendant of aggravated sexual
battery.  The trial court sentenced the defendant as a career offender
to thirty years.  The defendant contends on appeal that the evidence
is insufficient to support his conviction.  We affirm the judgment of
the trial court.

http://www.tba.org/tba_files/TCCA/gaineselroy.wpd

STATE OF TENNESSEE v. DAVID CURTIS LYNN

Court:TCCA

Attorneys:                          

Jerred A. Creasy, Charlotte, Tennessee, for the appellant, David
Curtis Lynn.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; Dan Alsobrooks, District Attorney General; and Kim
Menke, Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: SMITH

First Paragraph:

The appellant, David Curtis Lynn, was convicted of second offense
driving under the influence.  As a result, he was sentenced to 11
months and 29 days.  He was ordered to serve 90 days in jail and the
remainder of his sentence on probation.  The appellant apparently
violated probation sometime in 2001 and, as a result of that
violation, the trial court extended his probation by six months. 
After a hearing on what appears to be a second probation violation,
the trial court entered an order revoking the appellant's probation
and ordering him to serve his sentence in confinement.  On appeal, the
appellant argues that the trial court abused its discretion in
revoking his probation and that his sentence had expired at the time
the trial court revoked his probation.  We affirm the trial court's
revocation of the appellant's probation and decline to address the
issue regarding the expiration of the appellant's sentence due to an
inadequate and incomplete record on appeal.

http://www.tba.org/tba_files/TCCA/lynndavid.wpd

STATE OF TENNESSEE v. MICHAEL A. MOORE

Court:TCCA

Attorneys:                          

Didi Christie, Brownsville, Tennessee, for the appellant, Michael A.
Moore.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; and Elizabeth T. Rice, District
Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

Following a bench trial in general sessions court, the defendant was
convicted of DUI.  On the same day, he filed notice of appeal to the
circuit court.  The circuit court judge's administrative assistant
advised the defendant by letter to appear before the court to set a
trial date.  The defendant failed to appear as scheduled, and the
circuit court dismissed the appeal.  The defendant now appeals the
circuit court's dismissal.  Because the record does not reveal any
notice to or participation by appointed counsel at the circuit court
level, we reverse the judgment of the circuit court and remand for
further proceedings.

http://www.tba.org/tba_files/TCCA/moorema.wpd

STATE OF TENNESSEE  v.  STEVAN CRAIG MULLEN

Court:TCCA

Attorneys:                          

Mark Stewart, Winchester, Tennessee, for the appellant, Stevan Craig
Mullen.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; and William B. Copeland, Assistant District Attorney General,
for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Stevan Craig Mullen, was indicted by the Franklin County
Grand Jury for driving with an alcohol concentration of .10 or more,
in violation of Tenn. Code Ann. S 55-10-401, and for reckless driving,
in violation of Tenn. Code Ann. S 55-10-205.  Following a jury trial,
Defendant was convicted of driving with an alcohol concentration of
.10 or more and acquitted of reckless driving.  Defendant was
sentenced to eleven months and twenty-nine days, with all but
forty-eight hours of his sentence suspended.  In addition, his
driver's license was revoked for one year, and he was ordered to
perform 100 hours of public service work and fined $350.00.  In this
appeal as of right, Defendant challenges the trial court's denial of
his motion to suppress his breathalyzer test results.  After reviewing
the record, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/mullenstevanc.wpd

STATE OF TENNESSEE v. FINUS RODGERS

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender; and Robert H. Gowan and
Tony N. Braxton, Assistant Public Defenders, for the Appellant, Finus
Rodgers.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Amy Weirich, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

A Shelby County jury convicted the defendant, Finus Rodgers, of
aggravated robbery.  Following a sentencing hearing, the trial court
sentenced the defendant, as a Range I standard offender, to ten years
confinement in the Department of Correction.  On appeal, the defendant
argues that insufficient evidence exists in the record to support his
conviction.  Our review convinces us that the evidence is legally
sufficient, and we affirm the defendant's aggravated robbery
conviction.

http://www.tba.org/tba_files/TCCA/rodgersfinus.wpd

STATE OF TENNESSEE v. WILLIAM C. TOMLIN, JR.

Court:TCCA

Attorneys:                          

Douglas P. Nanney, Franklin, Tennessee, for the appellant, William C.
Tomlin, Jr.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Ron Davis, District Attorney General; and
Derek K. Smith, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, William C. Tomlin, Jr., was convicted by a jury of
aggravated burglary and theft over $1,000.  Following a sentencing
hearing, the trial court imposed consecutive sentences of fourteen
years for the aggravated burglary and ten years for the theft.  In
this appeal, the Defendant argues that the trial court erred by
denying two evidentiary motions, that the evidence is insufficient to
support the convictions, and that the trial court erred in sentencing.
 We modify the aggravated burglary sentence to twelve years and affirm
the judgments of the trial court in all other respects.

http://www.tba.org/tba_files/TCCA/tomlinwc.wpd

STATE OF TENNESSEE v. CHARLES WADE

Court:TCCA

Attorneys:                          

Gary F. Antrican, District Public Defender; and Shana McCoy-Johnson,
Senior Assistant District Public Defender, for the appellant, Charles
Wade.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Terry D. Dycus, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WITT

First Paragraph:

A Fayette County jury convicted the defendant of promoting
prostitution.  The trial court sentenced the defendant to five years'
incarceration as a Range III persistent offender.  On appeal, the
defendant attacks the sufficiency of the evidence and his sentence. 
We discern no error and affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/wadecharles.wpd

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