TBALink Opinion-Flash

January 12, 1996 -- Volume #2 -- Number #03

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 and the TN Attorney General.

This Issue:: New Opinons From TSC : 0; New Opinons From TCA : 13; New Opinons From TCCA : 9; New Opinons From AG : Pending

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Jim Moore
TBALink Co-Chief Editor
Opinion-Flash

Document Name :COXVF.OPN.WP6
Court :TCA

JAMES R. McKOON, Baker, Donelson, Bearman & Caldwell,
Chattanooga, for Appellant.

PAUL CAMPBELL, JR., Campbell & Campbell,
Chattanooga, for Appellee.

First Paragraph:

This is an appeal from the judgment of the trial court
sustaining a motion for summary judgment in favor of
Pennsylvania National Insurance Company, appellant's
uninsured motorist carrier, and dismissing the appellant's
complaint. We reverse the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCA/COXVF.OPN.WP6

Document Name :DOWNING.OPN.WP6
Court :TCA

JAMES L. HARRIS
Nashville, Tennessee
Attorney for Appellant

MICHAEL W. EDWARDS
Hendersonville, Tennessee
Attorney for Appellee

First Paragraph:

Plaintiff, Betty Ann Downing, is the sister of Charles O.
Brinkley ("Decedent"), who died of AIDS on February 2,
1994, in San Francisco, California. At the time of his
death, Decedent had a $15,000 life insurance policy, under
which his son, Eric Brinkley, was named as beneficiary.
The crux of Plaintiff's complaint is that she paid
Decedent's burial expenses in reliance on Defendant's
statements indicating that he intended to pay them from the
insurance proceeds. The Defendant refused to pay such
expenses after he received the insurance funds. The action
was originally brought in the General Sessions court for
Sumner County, where, following a trial on the merits,
judgment was rendered in favor of Plaintiff in the amount
of $5,230.00.

URL:http://www.tba.org/tba_files/TCA/DOWNING.OPN.WP6

Document Name :GENERAL.OPN.WP6
Court :TCA

JERRY C. SHELTON, Lyell, Seaman & Shelton, Nashville,
Attorney For Defendant/Appellant Claude Ramsey,
Assessor of Property for Hamilton County, Tennessee.

CHARLES W. BURSON, Attorney General and Reporter
SEAN P. SCALLY, Assistant Attorney General
Attorneys For Defendant/Appellant
Tennessee State Board of Equalization.

WILLIAM R. BUZO, Pro Hac Vice, Lexington, Kentucky,
H. BUCKLEY COLE, Baker, Donelson, Bearman & Caldwell,
Nashville,
Attorneys for Plaintiff/Appellee.

First Paragraph:

General Oils Company ("plaintiff") filed suit in the
Chancery Court of Davidson County against the Assessor of
Property for Hamilton County ("Hamilton County Assessor")
and the Tennessee State Board of Equalization ("Board of
Equalization") seeking judicial review of the decision by
the Assessment Appeals Commission ("AAC") of the Board of
Equalization that for tax assessment purposes plaintiff's
petroleum storage tanks located in Hamilton County were
real property. The chancellor reversed the AAC, holding
that the tanks were personal property. On appeal Hamilton
County Assessor and Board of Equalization present one issue
for our consideration:

URL:http://www.tba.org/tba_files/TCA/GENERAL.OPN.WP6

Document Name :HANNAH.OPN.WP6
Court :TCA

B. PRINCE MILLER, JR., OF CLEVELAND FOR APPELLANT

NO BRIEF FILED BY THE APPELLEE

First Paragraph:

In this post-divorce proceeding, Patricia Annette Hannah,
formerly Lipps, appeals dismissal of her petition seeking
an increase in child support. Although she raises three
issues on appeal, we find the first one to be dispositive:

URL:http://www.tba.org/tba_files/TCA/HANNAH.OPN.WP6

Document Name :JAANINI.OPN.WP6
Court :TCA

PHILLIP C. LAWRENCE of POOLE,
LAWRENCE, THORNBURY, STANLEY & MORGAN,
Chattanooga, for Appellant

JAY KU, Chattanooga, for Appellee

First Paragraph:

This is a divorce case. The appellant challenges the
jurisdiction of the trial court to enter an order after the
final divorce judgment was entered on January 24, 1995. He
apparently contends that relief was not appropriate under
either Tenn. R. Civ. P. 59 or 60. We hold that the trial
court had jurisdiction under Tenn. R. Civ. P. 59 to grant
the relief attacked on this appeal.

URL:http://www.tba.org/tba_files/TCA/JAANINI.OPN.WP6

Document Name :JAANNI.DIS.WP6
Court :TCA

Attorneys: See Above

First Paragraph:

I dissent but concur in result.
The motion filed on March 17th was not filed within 30 days
of judgment and could not be treated as a Rule 59 motion.

URL:http://www.tba.org/tba_files/TCA/JAANNI.DIS.WP6

Document Name :JOHNSON2.OPN.WP6
Court :TCA

GEORGE W. MORTON, JR., of MORTON & MORTON,
Knoxville, for Appellant

JANET L. HOGAN of HOGAN & HOGAN,
Knoxville, for Appellee Continental Baking Company

First Paragraph:

This T.R.A.P. 9 interlocutory appeal involves a dispute
between the parties regarding a settlement agreement. The
agreement at issue ostensibly settled a tort action brought
by the appellant James B. Johnson (Johnson) for serious
injuries arising out of an automobile accident, the facts
of which are not pertinent to this appeal. Although the
parties agree that they entered into an oral settlement and
also agree that they advised the trial court that they had
settled the plaintiff's suit, they are now in dispute as to
the terms of the settlement. The trial court found that
there was a mutual mistake of fact in the negotiations
leading up to the settlement, and consequently refused to
enforce the more generous settlement argued for by Johnson.
Johnson filed a T.R.A.P. 9 application for permission to
appeal, and in the interest of judicial economy and
efficiency, this court agreed to hear his appeal.

URL:http://www.tba.org/tba_files/TCA/JOHNSON2.OPN.WP6

Document Name :LEINART.OPN.WP6
Court :TCA

BRUCE D. FOX OF CLINTON FOR APPELLANTS

GREGORY F. COLEMAN OF KNOXVILLE FOR APPELLEE

First Paragraph:

Sharon Leinart and her husband Paul Leinart appeal a
judgment rendered in their case seeking damage for her
injuries and for his loss of consortium and companionship
as a result of injuries she received in a vehicular
accident. She insists the jury award, approved by the
Trial Court, totaling $15,000 was so inadequate that the
Trial Court was in error in not granting her a new trial.
Mr. Leinart insists that the jury award of zero for his
damages was likewise inadequate.

URL:http://www.tba.org/tba_files/TCA/LEINART.OPN.WP6

Document Name :MANIS.OPN.WP6
Court :TCA

KENNETH S. CHRISTIANSEN OF KNOXVILLE FOR APPELLANT

STEVE HAUN, Pro Se

First Paragraph:

The Plaintiff, Don Manis, d/b/a Easy Money Pawn Shop,
appeals dismissal of his suit against Steve Haun, wherein
he sought possession of a 1985 Ford F-350 truck.

URL:http://www.tba.org/tba_files/TCA/MANIS.OPN.WP6

Document Name :MASON.OPN.WP6
Court :TCA

JAMES H. RIPLEY OF SEVIERVILLE FOR APPELLANT

DOUGLAS L. DUTTON and AMY V. HOLLARS OF KNOXVILLE
FOR APPELLEES

First Paragraph:

This is a suit seeking damages for wrongful discharge
pursuant to "The Public Protection Act of 1990," T.C.A.
50-1-304, commonly known as the Whistle Blower Act, and the
"Occupational Safety and Health Act of 1972," T.C.A.
50-3-106. The Trial Court granted the Defendants a summary
judgment insofar as the complaint sought relief under the
Whistle Blower Act. Thereafter, he entered a Rule 54
judgment rendering his disposition a final judgment, and as
such subject to an appeal as of right.

URL:http://www.tba.org/tba_files/TCA/MASON.OPN.WP6

Document Name :MCGEE.OPN.WP6
Court :TCA

Winston S. Evans of Nashville
For Appellee, Lovlace

Kevin S. Carr of Spicer, Flynn & Rudstrom of Nashville
For Appellee, First National Bank of Centerville

Michael E. Gilmer of Columbia
For Appellant

First Paragraph:

This appeal involves a venue dispute. Plaintiff, Sue McGee,
appeals from the order of the Circuit Court for the
Twenty-Second Judicial District in Maury County, Tennessee,
that dismissed her suit against defendants, First National
Bank and Neal Lovlace, for improper venue. The record in
the case consists of what was formerly called the technical
record and a "transcript of proceedings" which has no
testimony and contains only argument and statements of
counsel and the court.

URL:http://www.tba.org/tba_files/TCA/MCGEE.OPN.WP6

Document Name :MURPHYRM.OPN.WP6
Court :TCA

L. THOMAS AUSTIN OF DUNLAP FOR APPELLANT

STEPHEN T. GREER OF DUNLAP FOR APPELLEE

First Paragraph:

James Edward Murphy appeals a divorce decree of the Chancery
Court for Rhea County. By his issues on appeal he
questions the Court's division of marital property and its
award of child support, alimony, and attorney fees.

URL:http://www.tba.org/tba_files/TCA/MURPHYRM.OPN.WP6

Document Name :UNIGARD.OPN.WP6
Court :TCA

VANCE W. CHEEK, JR., OF JOHNSON CITY
FOR MAKATO'S OF TENNESSEE, INC.

J. DAVID MILLER OF KINGSPORT
FOR SCOTT HICKMAN AND WIFE SUSAN DENISE HICKMAN

JACK M. VAUGHN OF KINGSPORT
FOR UNIGARD SECURITY INSURANCE COMPANY

DAVID S. HAYNES OF BRISTOL
FOR THE MACKORELL GROUP, INC., JAMES T. MACKORELL
and wife WENDY L. MACKORELL

First Paragraph:

Scott Hickman and wife Susan D. Hickman and Makato's of
Tennessee, Inc., hereinafter referred to as the Defendants,
appeal a declaratory judgment entered by the Circuit Court
for Washington County which found that a liability policy
issued by Unigard Security Insurance Company to Makato's
did not cover an injury to Mr. Hickman because Makato's had
not complied with the notice requirement of the policy.
Makato's also appeals dismissal of its third-party action
against the Mackorell Group, Inc., and James T. Mackorell
and wife Wendy L. Mackorell. James T. Mackorell and Wendy
L. Mackorell owned the capital stock of Makato's at the
time of Mr. Hickman's injury, but shortly thereafter sold
it to Thomas Mackorell and wife Julie A. Mackorell and
David LeVeau.

URL:http://www.tba.org/tba_files/TCA/UNIGARD.OPN.WP6

Document Name :BAILEYLE.OPN.WP6
Court :TCCA

For the Appellant: For the Appellee:

Joyce Ward Charles W. Burson
Assistant Public Defender Attorney General and Reporter
1609 College Park Drive 450 James Robertson Parkway
Morristown, TN 37813-1618 Nashville, TN 37243-0493

Michael J. Fahey, II
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493

Eric Christiansen Assistant District Attorney
Suite 306
1104 Tusculum Boulevard
Greeneville, TN 37743

First Paragraph:

The defendant, Lelan Bailey, appeals as of right from his
conviction for forgery in an amount less than $1,000. The
trial court imposed a Range I sentence of two years.

URL:http://www.tba.org/tba_files/TCCA/BAILEYLE.OPN.WP6

Document Name :BRANAM.OPN.WP6
Court :TCCA

For the Appellant: For the Appellee:

A. Wayne Carter Charles W. Burson
Assistant Public Defender Attorney General of TN
P.O. Box 1453 and
Cleveland, TN 37364-1453 Charlotte H. Rappuhn
Asst Attorney General of TN
450 James Robertson Parkway
Nashville, TN 37243-0493

Jerry N. Estes
District Attorney General
and
Rebble S. Johnson
Asst District AG
203 E. Madison Ave.
Athens, TN 37303-0647

First Paragraph:

This is an appeal as of right from a judgment of the trial
court denying the appellant's application for
post-conviction relief. The petitioner was convicted of
first degree murder on October 18, 1979, and was sentenced
to life imprisonment. His conviction was affirmed on
appeal. State v. Branam, 604 S.W.2d 892 (Tenn. Crim. App.
), app. denied (Tenn. Sept. 2, 1980). On July 26, 1988, he
filed a petition for post-conviction relief asserting that
he received the ineffective assistance of counsel and that
his conviction resulted from a violation of due process
because the trial court's jury instruction regarding malice
violated Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450
(1979).

URL:http://www.tba.org/tba_files/TCCA/BRANAM.OPN.WP6

Document Name :COVINGTO.OPN.WP6
Court :TCCA

For the Appellant: For the Appellee:

Shara Flacy Charles W. Burson
District Public Defender Attorney General and Reporter
P.O. Box 1208 450 James Robertson Parkway
Pulaski, TN 37813-1618 Nashville, TN 37243-0493

John P. Damron Clinton J. Morgan
Assistant Public Defender Counsel for the State
209 West Madison Street 450 James Robertson Parkway
P.O. Box 1208 Nashville, TN 37243-0493
Pulaski, TN 38478
Robert C. Sanders Assistant District Attorney
Maury County Courthouse Annex
Columbia, TN 38478

First Paragraph:

The petitioner, Raymond Lewis Covington, appeals from the
trial court's order dismissing his petition for post-
conviction relief. The single issue presented for review
is whether the petitioner had been denied the effective
assistance of counsel at trial.

URL:http://www.tba.org/tba_files/TCCA/COVINGTO.OPN.WP6

Document Name :FOWLERLE.OPN.WP6
Court :TCCA

FOR THE APPELLANT: FOR THE APPELLEE:

MARK C. BIESACK CHARLES W. BURSON
615 Walnut St., # 206 Attorney General & Reporter
Chattanooga, TN 37402
AMY L. TARKINGTON
Assistant Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493

GARY D. GERBITZ
District Attorney General
600 Market St., Suite 310
Chattanooga, TN 37402

STANLEY J. LANZO
Asst. District Attorney General
City and County Courts Bldg.
Chattanooga, TN 37402

First Paragraph:

The petitioner was indicted and convicted by a jury of
felonious assault with a firearm with the intent to commit
first-degree murder. His conviction was affirmed on direct
appeal. He then petitioned for post-conviction relief,
alleging ineffective assistance of counsel at trial and on
appeal, and no effective waiver of his constitutional right
to counsel at trial.

URL:http://www.tba.org/tba_files/TCCA/FOWLERLE.OPN.WP6

Document Name :HUNTERJL.OPN.WP6
Court :TCCA

For the Appellant: For the Appellee:

Gregory D. Smith Charles W. Burson
BPR# 013420 Attorney General/Reporter
One Public Sq., STE 321
Clarksville, TN 37040 Cecil H. Ross
(ON APPEAL) Assistant Attorney General
Criminal Justice Division
Robert L. Marlow 450 James Robertson Parkway
Assistant Public Defender Nashville, TN 37243 0493
Fayette, TN 37334
(AT TRIAL AND ON APPEAL)
William Michael McCown
District Attorney General

Weakley E. Barnard
Asst. District AG
Lewisburg, TN 37091

First Paragraph:

The appellant, Jerry Lee Hunter, appeals from a conviction
and sentence for burglary, entered by the Circuit Court of
Marshall County. Essentially, four issues are presented
for our review. First, the appellant challenges the
sufficiency of the evidence to sustain his conviction.
Second, the appellant contends that his conviction for
burglary is inconsistent with his acquittal on the charges
of theft and attempted theft. Third, the appellant argues
that the trial court erred in admitting into evidence tools
found in the rear pocket of the appellant's pants at the
time of his arrest. Finally, the appellant contends that
the sentence imposed by the trial court is excessive, and
that the trial court should have granted the appellant an
alternative sentence.

URL:http://www.tba.org/tba_files/TCCA/HUNTERJL.OPN.WP6

Document Name :HUNTERJP.OPN.WP6
Court :TCCA

For the Appellant: For the Appellee:

George J. Duzane Charles W. Burson
Duzane, Kooperman & Mondelli Attorney General / Reporter
One Church Street 450 James Robertson Parkway
Suite 300 Nashville, TN 37243-0493
Nashville, TN 37201
Eugene J. Honea
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493

Ms. Kymberly Hattaway
Assistant District Attorney
222 Second Avenue North
Washington Square, Suite 500
Nashville, TN 37201-1649

First Paragraph:

The defendant, James Phillip Hunter, appeals from his
conviction for first degree murder. The trial court
imposed a life sentence. In addition to his challenge to
the sufficiency of the evidence, the defendant presents the
following issues for review:

URL:http://www.tba.org/tba_files/TCCA/HUNTERJP.OPN.WP6

Document Name :PARTON.OPN.WP6
Court :TCCA

FOR THE APPELLANT: FOR THE APPELLEE:

MARK E. STEPHENS CHARLES W. BURSON
District Public Defender Attorney General & Reporter

PAULA R. VOSS GEORGE P. LINEBAUGH
Assistant Public Defender Counsel for the State
1209 Euclid Ave. 450 James Robertson Pkwy.
Knoxville, TN 37921 Nashville, TN 37243-0493

RANDALL E. NICHOLS
District Attorney General

ANDREW JACKSON
Asst. District AG
City-County Bldg.
Knoxville, TN 37902

First Paragraph:

The petitioner was indicted in 1987 for burglary; grand
larceny; receiving stolen property; concealing stolen
property; "offering to pass and transfer . . . [a] forged
. . . check" in the amount of three hundred twenty dollars
($320); and under the habitual criminal statute. Pursuant
to a plea bargain agreement, he pled guilty to third-degree
burglary; grand larceny; and "attempt to transfer of [sic]
a forged instrument exceeding $200 in amount, as charged."
The State's recommended punishment for these offenses was
the maximum sentence for each conviction. The court
accepted the State's recommendation and sentenced the
petitioner to ten years as a Range II aggravated and
persistent offender for each of the offenses, to run
consecutively, for an effective sentence of thirty years.

URL:http://www.tba.org/tba_files/TCCA/PARTON.OPN.WP6

Document Name :PARTON.CON.WP6
Court :TCCA

Attorneys: See Above

First Paragraph:

I concur in the majority opinion's result and most of its
reasoning. However, I disagree with its view of the
relationship between the forgery law and criminal attempt.
The forgery statute in question provides that any person
who "fraudulently passes or transfers, or offers to pass or
transfer, any forged paper, knowing it to be forged, with
intent to defraud another" commits a felony. T.C.A. 39
3-804 (1982) (repealed 1989). In context, the reference to
an offer carries special meaning that does not include
every means by which an attempt may occur. I believe it
was included for the direct purpose of making equally
culpable the type of person who, for example, presents a
forged check to a bank teller for cashing, but the teller
notices the forgery and thereby refuses to accept the check
or to cash it.

URL:http://www.tba.org/tba_files/TCCA/PARTON.CON.WP6

Document Name :SOUTHERL.OPN.WP6
Court :TCCA

FOR THE APPELLANT: FOR THE APPELLEE:

Cheryl J. Skidmore Charles W. Burson
Attorney at Law Attorney General & Reporter
629 East Main Street
Hendersonville, TN 37075 Hunt S. Brown
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493

William Michael McCown
District Attorney General

Weakley E. Barnard
Asst. Dist. Attorney General
Marshall Co. Courthouse
Lewisburg, TN 37091

First Paragraph:

Appellant, Barry Southerland, was convicted of aggravated
rape and aggravated kidnapping. He received concurrent
life sentences. His convictions were affirmed by this
Court; and the Supreme Court denied certiorari on August
29, 1988. On February 18, 1991, appellant's first Petition
for Writ of Habeas Corpus was dismissed. On January 29,
1993, appellant filed his second Petition for Writ of
Habeas Corpus in the United States District Court alleging
ineffective assistance of counsel. This Petition was
dismissed on August 11, 1994. Appellant subsequently filed
application for delayed appeal which was denied by this
Court on December 20, 1994. On January 5, 1995, appellant
filed for post-conviction relief alleging ineffective
assistance of counsel. The trial court dismissed his
petition, as untimely, on January 20, 1995, without
conducting an evidentiary hearing. Appellant appeals that
dismissal. We affirm.

URL:http://www.tba.org/tba_files/TCCA/SOUTHERL.OPN.WP6

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