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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink
  
TODAY'S OPINIONS: Monday, August 08, 2005
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.

00 - Formal Ethics Opinions - BPR
00 - Judicial Ethics Opinions
00 - TN Attorney General Opinions
04 - TN Court of Appeals
06 - TN Court of Criminal Appeals
01 - TN Supreme Court
00 - TN Supreme Court - Rules
00 - TN Worker's Comp Appeals


EDMUND R. BRILEY, ET AL. v. GARY W. CHAPMAN, ET AL.

Court: TCA

Attorneys:

Frank M. Fly of Murfreesboro, Tennessee for Appellants, Edmund R. Briley and Margaret Coleman Briley

No appearance by Appellees

Judge: CRAWFORD

This appeal involves the question of the statute of limitation for an action for libel of title. The trial court granted summary judgment to the defendants, holding that the proper statute of limitation was found at T.C.A. ¤ 28-3-105. Without reaching a decision on the merits, an examination of the record indicates that the notice of appeal was not timely. Therefore, this Court does not have jurisdiction, and the appeal must be dismissed.

brileye8805.pdf


COLBY M. REYNAUD v. JOHN KOEHLER, ET AL.

Court: TCA

Attorneys:

Kristi M. Davis, Knoxville, Tennessee, for the Appellants, John Koehler and Jacqueline Koehler.

William L. Waters, Knoxville, Tennessee, for the Appellee, Colby M. Reynaud.

Judge: LEE

This case arises out of a dispute between adjacent landowners regarding whether an easement can be obstructed by a locked gate. The plaintiff placed a locked gate across the easement and asserts that it is necessary for the protection of her person and property. The defendants disagree and argue that the locked gate unreasonably interferes with ingress and egress to their property. The trial court found in favor of the plaintiff. We find that the plaintiff has failed to present sufficient evidence that her person or property is at risk and that she has unsuccessfully attempted alternate means of protecting same and, therefore, it is our determination that plaintiff has failed to prove that the locked gate is necessary. We further find that the locked gate unreasonably interferes with the defendantsā use of the easement. Based upon these findings, we reverse the judgment of the trial court in part, affirm in part, and remand.

koehlerj8805.pdf


MARK SMITH v. SMITH IMPORTS, INC., ET AL.

Court: TCA

Attorneys:

Kim G. Sims, Memphis, TN, for Appellant

Eric J. Plumley, Memphis, TN, for Appellee Barnett Motor Works, Inc.

Judge: HIGHERS

This appeal arises from an order granting summary judgment. The trial court granted summaryjudgment for one of the defendants and the plaintiff appealed to this Court. After reviewing the record, we dismiss this appeal for lack of subject matter jurisdiction.

smithm8805.pdf


KENNETH EDWARD WINN v. HALLIE JONES WINN

Court: TCA

Attorneys:

Brandy Boyd Slaybaugh and Norbert J. Slovis, Knoxville, Tennessee, for the appellant, Hallie Jones Winn.

Melaney G. Madewell, Cookeville, Tennessee, for the appellee, Kenneth Edward Winn.

Judge: KIRBY

This is a divorce case. The husband filed a petition for divorce after five years of marriage. Following a trial, the trial court entered a final decree detailing the equitable distribution of the partiesā property. The wife filed a motion to alter or amend the decree, arguing, among other things, that some of the property awarded to the husband was not marital property. The trial court denied that motion. The wife now appeals. We affirm, noting that, in the absence of a transcript or a statement of the evidence, we must presume that the evidence supported the trial courtās rulings related to the equitable distribution of the partiesā property.

winnk8805.pdf


STATE OF TENNESSEE v. JAMES AUSTIN

Court: TCCA

Attorneys:

Charles W. Gilchrist, Jr. and Lance Chism, Memphis, Tennessee, for the appellant, JamesAustin.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General;William L. Gibbons, District Attorney General; and Karen Cook and Stacy McEndree, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant appeals his conviction for second degree murder on the grounds of (1) insufficientevidence to support the verdict and (2) the sentence, pursuant to Blakely issues. After review, we find sufficient evidence to support the verdict. The Tennessee sentencing structure is notimpacted by Blakely, therefore, the sentence is affirmed.

austinj8805.pdf


STATE OF TENNESSEE v. HAROLD L. CASSELL

Court: TCCA

Attorneys:

James Robin McKinney, Jr., Nashville, Tennessee, for the Appellant, Harold L. Cassell.

Paul G. Summers, Attorney General & Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and James D. Sledge, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The defendant, Harold L. Cassell, entered an agreed plea to domestic assault, a Class A misdemeanor, and applied for judicial diversion, pursuant to Tennessee Code Annotated section 4035-313. The trial court imposed a sentence of 11 months and 29 days to be served on probation and denied the application for judicial diversion. On appeal, the defendant challenges the denial of judicial diversion. Upon review, we reverse the judgment of the trial court and grant judicial diversion. The cause is remanded for the imposition of conditions of the probationary term.

cassellh8805.pdf

DISSENTING OPINION
cassellh_dis8805.pdf


STATE OF TENNESSEE v. WANDA JOYCE DRAKE

Court: TCCA

Attorneys:

John W. Price, Murfreesboro, Tennessee, for the appellant, Wanda Joyce Drake.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and David Puckett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Wanda Joyce Drake, pled guilty in the Cannon County Circuit Court to conspiracy to manufacture methamphetamine, possession of a weapon during a felony, and possession of methamphetamine. The appellant received a total effective sentence of two years incarceration in the Tennessee Department of Correction. On appeal, the appellant argues that the trial court erred in denying probation. Upon our review of the record and the partiesā briefs, we affirm the judgments of the trial court.

drakew8805.pdf


STATE OF TENNESSEE v. CLAYTON WILBURN ESLICK

Court: TCCA

Attorneys:

Fannie J. Harris, Nashville, Tennessee (on appeal), and Forest Durard, Shelbyville, Tennessee (at trial), for the appellant, Clayton Wilburn Eslick.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney General; W. Michael McCown, District Attorney General; Brooke Grubb and Weakley E. Barnard, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Clayton Wilburn Eslick, was convicted by a jury in the Marshall County Circuit Court of six counts of passing worthless checks. The trial court imposed a total effective sentence of six years incarceration in the Tennessee Department of Correction. On appeal, the appellant argues that the evidence was insufficient to sustain his convictions. Upon our review of the record and the partiesā briefs, we affirm the judgments of the trial court.

eslickc8805.pdf


STATE OF TENNESSEE v. KENNA JEAN PARROTT

Court: TCCA

Attorneys:

Cynthia F. Burnes, Nashville, Tennessee, for the appellant, Kenna Jean Parrott.

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; Paul DeWitt, Assistant District Attorney General; and Jim Milam, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Kenna Jean Parrott, was found guilty of theft of property over $60,000, a Class B felony, and forgery of books and records valued at over $60,000, a Class B felony. The trial court sentenced Defendant as a Range I, standard offender, to eight years for each offense and ordered Defendantās sentences to run concurrently. The trial court ordered six months of the effective eight-year sentence to be served in jail, and the remainder of the effective sentence in Community Corrections. Defendant does not challenge the length or manner of service of her sentence. In her appeal, Defendant challenges the sufficiency of the convicting evidence. After review, we affirm the judgments of the trial court.

parrottk8805.pdf


STATE OF TENNESSEE v. JIMMY RAY ROGERS

Court: TCCA

Attorneys:

Philip A. Condra (on appeal) and David O. McGovern (at trial), Jasper, Tennessee, for the appellant, Jimmy Ray Rogers.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; J. Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Jimmy Ray Rogers, was convicted by a jury of introducing contraband into a penal institution, possession of marijuana, and driving on a revoked license. He received a total effective sentence of nine years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting his conviction for introduction of contraband into a penal institution and the length of the sentence imposed for that conviction. Upon our review of the record and the partiesā briefs, we conclude that the appellantās conviction and sentence for introducing contraband into a penal institution should be affirmed; the appellantās conviction for possession of marijuana should merge into his conviction for introducing contraband into a penal institution; a corrected judgment should be entered reflecting that the appellant was found not guilty of possession of drug paraphernalia; and the appellantās conviction for driving on a revoked license should be reinstated. Therefore, this case is remanded to the trial court for sentencing on the appellantās conviction for driving on a revoked license and for correction of the judgments.

rogersj8805.pdf


DOUGLAS L. BROWN v. STATE OF TENNESSEE

Court: TSC

Attorneys:





Judge: PER CURIAM

On July 19, 2005, the applicant, Douglas L. Brown, filed an application for permission toappeal pursuant to Rule 11, Tenn. R. App. P. The judgment of the Court of Criminal Appeals was filed on May 13, 2005. The time for filing an application for permission to appeal expiredon July 12, 2005. See Tenn. R. App. P. 11(b). The application, therefore, was not timely filed, and this Court is without jurisdiction to consider the merits of the application. See Tenn. R. App.P. 2 and 11(b).

brownd8805.pdf


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