TBALink Opinion-Flash

November 21, 1996 -- Volume #2 -- Number #105

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.

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00-New Opinons From TSC-Rules
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11-New Opinons From TCCA

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STATE OF TN, ET AL.
V.
WAYNE BURNS AND JOHNNIE S. DANIELS, AND JOHNNIE S. DANIELS 
V. 
WAYNE BURNS AND BETTY BRENT d/b/a BRENT BONDING COMPANY

Court:TCA

JOE P. BINKLEY
Nashville, TN

MARK A. ELLMORE
Nashville, TN
ATTORNEYS FOR RESPONDENT/APPELLANT
BETTY BRENT d/b/a BRENT BONDING COMPANY

JOSEPH F. ROSENBERG
Dale, Rosenberg & McLean
Nashville, TN 
ATTORNEY FOR DEFENDANT/PETITIONER/APPELLEE
JOHNNIE S. DANIELS
                         
Judge:SAMUEL L. LEWIS

This is an appeal by appellant, Betty Brent d/b/a Brent Bonding
Company, from a decision of the chancery court which found that
appellee, Johnnie S. Daniels, had properly redeemed the property
purchased by Brent at a delinquent tax sale and which voided a
quitclaim deed from Daniels to Wayne Burns.  The facts out of which
this matter arose are as follows.

URL:http://www.tba.org/tba_files/TCA/BURNSW_OPN.WP6
Opinion-Flash

CHRISTOPHER E. CLABOUGH VS. PATRICIA J. CLABOUGH

Court:TCA

Attorneys: PHILIP E. SMITH
PHILLIP ROBINSON
Nashville, TN 
Attorneys for Plaintiff/Appellant

ROSE PALERMO
CHEATHAM & PALERMO
Nashville, TN
Attorney for Defendant/Appellee
                         
Judge:BEN H. CANTRELL

First Paragraph:

There are two questions raised by the appellant in this appeal: (1)
Did the trial court err by granting separate support and maintenance
to the wife when no such relief was requested in the pleadings? and
(2) Did the trial courts actions deprive the appellant of his right
to due process?  We affirm the judgment below but remand the cause for
a determination of whether the separation is to be deemed temporary or
perpetual.

URL:http://www.tba.org/tba_files/TCA/CLABOUGH_OPN.WP6
Opinion-Flash

IN RE: THE ESTATE OF SALLY B. COGGINS, deceased

Court:TCA

JERRY SHATTUCK, WITH SHATTUCK & ELLEGE, OF CLINTON, TN, FOR
APPELLANT WILMA J. BOWMAN

LYNN M. LAUDERBACK, WITH LAUDERBACK & LAUDERBACK, OF KINGSPORT,
TN, and HUGH P. CLINE, WITH CLINE, ADKINS & CLINE, OF NORTON,
VIRGINIA, FOR APPELLEE LUCILE B. CARTER
                         
Judge:Sanders

First Paragraph:

The pivotal issue on this appeal is, if an attorney in fact issues a
check to a bank, drawn on the checking account of her principal, for
which the bank issues a time certificate of deposit for the amount of
the check in the name of the principal "or" the attorney in fact, and
there is no specific provision in the power of attorney for such
transaction and no signature card or contract  relating to the
certificate of deposit signed by either the principal or the attorney
in fact, upon the death of the principal, which is entitled to the
funds, the principal's estate or the attorney in fact?  

URL:http://www.tba.org/tba_files/TCA/COGGINS_OPN.WP6
Opinion-Flash

CONTRACTORS HEATING & COOLING, INC., and JAMES T. REDD 
VS. 
PAUL L.DEVINE

Court:TCA

TODD E. PANTHER
TUNE, ENTREKIN & WHITE
Nashville, TN
Attorney for Appellant

GAIL P. PIGG
Nashville, TN
Attorney for Appellees                          

Judge:ALAN E. HIGHERS

First Paragraph:

Plaintiff, James T. Redd, filed suit in the Chancery Court of Davidson
County against defendant, Paul L. Devine, seeking to enforce a stock
retirement agreement ("SRA").  The trial court held that the SRA was
valid and enforceable.  The trial court ordered Devine to convey his
stock to the company for the price stated in the SRA.  Devine has
appealed, arguing that the SRA should not be enforced and that the
company should be required to pay fair market value for his stock.  

URL:http://www.tba.org/tba_files/TCA/CONHEAT_OPN.WP6
Opinion-Flash

CULTRA LANDSCAPING SUPPLY COMPANY
VS.
DIRECTOR OF HIGHWAYS DEPARTMENT OF TRANSPORTATION AND W.  L. SHARPE
CONTRACTING COMPANY, INC. AND   CHARLES HILL, Individually and d/b/a
C. H. HILL LANDSCAPE AND EXCAVATING

Court:TCA

Andrew H. Owens, LAW OFFICES OF DON OWENS, P.A., Memphis, TN,
for Plaintiff/Appellant.

Jeffery D. Parrish, BOROD & KRAMER, P.C., Memphis, TN,
for Defendant/Appellee Charles Hill.
                          
Judge:FARMER

First Paragraph:

This is an action by the appellant, Cultra Landscaping Supply Company
(Cultra), seeking to recover the balance allegedly due on an open
account.  Cultra's complaint, as amended, was filed against the
Director of Highways, Department of Transportation, W. L. Sharpe
Contracting Company, Inc. (Sharpe) and Charles Hill, individually and
d/b/a C. H. Hill Landscape and Excavating (Hill).  For purposes of
this appeal, however, the only other party before us is Hill, the
appellee.  A bench trial resulted in a judgment for Hill.  Cultra
appeals on the sole basis that the evidence presented at trial
preponderates against the trial court's findings. 

URL:http://www.tba.org/tba_files/TCA/CULTRA_OPN.WP6
Opinion-Flash

DON CARLOS FORD v. BRENDA DIANNE FORD

Court:TCA

REX L. BRASHER, Brown, Brasher & Smith, Memphis, Attorney for Plaintiff.

KAY FARESE TURNER, Turner & McGhee, Memphis, Attorney for Defendant.
                       
Judge:TOMLIN

First Paragraph:

Don C. Ford ("Husband") filed suit in the Circuit Court of Shelby
County against Brenda D. Ford ("Wife") seeking a divorce on the
grounds of either irreconcilable differences or inappropriate marital
conduct.  Wife filed a counter complaint seeking a divorce on the
grounds of inappropriate marital conduct and adultery.  At trial the
parties stipulated to inappropriate marital conduct on the part of
husband, who also had previously admitted to one or more acts of
adultery in his pretrial deposition.  Following a bench trial the
court awarded wife the divorce.  

URL:http://www.tba.org/tba_files/TCA/FORDBD_OPN.WP6
Opinion-Flash

MARILYN KENNEDY HENDON VS. ROBERT C. HENDON, JR

Court:TCA

MARLENE ESKIND MOSES
Eisenstein, Moses & Mossman
Nashville, TN 
Attorney for Plaintiff/Appellee

JAMES H. DRESCHER
Stokes & Bartholomew, P.A.
Nashville, TN 
Attorney for Defendant/Appellant                   

Judge:BEN H. CANTRELL

First Paragraph:

In this post-divorce proceeding, the trial judge modified a temporary
award of rehabilitative support by changing it to a long-term award. 
The husband argues on appeal that there have been no unforeseen
changes in circumstances since the divorce; that the lower court erred
in not considering the fact that the wife will inherit a substantial
estate from her parents; and that the court erred in relying on the
fact that the husband's current wife has a substantial income.  We
affirm the trial court.

URL:http://www.tba.org/tba_files/TCA/HENDONRC_OPN.WP6
Opinion-Flash

WINSTON T. KNOWLES and LINDA KNOWLES
VS.
STATE OF TN, CHATEM, INCORPORATED, PHILIP E. COX and EMILY B.
COX

Court:TCA

JOHN C. CAVETT, JR., Cavett & Abbott, Chattanooga, for Appellants.

DAVID W. NORTON, and WM. SHELLEY PARKER, JR., Chattanooga, for
Appellees.
                          
Judge:McMurray

First Paragraph:

This action was originally filed against the defendants listed in the
caption.  The complaint was later amended, however, and The City of
Chattanooga and Hamilton County were added as defendants and the
defendant, State of TN was dismissed from the action.  The
complaint sought to have a tax sale of certain properties claimed by
the plaintiffs set aside.  The trial court denied relief.  

URL:http://www.tba.org/tba_files/TCA/KNOWLESW_OPN.WP6
Opinion-Flash

RHONDA REAGAN VS. JOHN REAGAN

Court:TCA

MARTHA MEARES, Maryville, and JOHN E. McDONALD, JOYCE, MEREDITH,
FLITCROFT & NORMAND, Oak Ridge, for Appellee.

ROBERT N. GODDARD, GODDARD & GAMBLE, Maryville, for Appellant.
                          
Judge:Franks

First Paragraph:

In this divorce action, the husband questions the nature and extent of
the alimony awards made to the wife.

URL:http://www.tba.org/tba_files/TCA/REAGANR_OPN.WP6
Opinion-Flash

JAMES YETT WEST VS. JUDY SCARBROUGH WEST and JEANNE WEST BENNETT

Court:TCA

JERROLD L. BECKER OF KNOXVILLE FOR APPELLANT

ROBERT R. SIMPSON OF KNOXVILLE FOR APPELLEE
                          
Judge:Goddard

First Paragraph:

This appeal questions the Trial Court's granting a $13,190.37 judgment
in favor of Jeanne West Bennett against her father, James Yett West in
a divorce suit between her parents, in which Ms. Bennett intervened.

URL:http://www.tba.org/tba_files/TCA/WESTJS_OPN.WP6
Opinion-Flash

WALLACE BUTLER VS. BLACKWOOD, RICKY BELL, WARDEN,

Court:TCCA

FOR THE APPELLANT:                  FOR THE APPELLEE:

GARY ANTRICAN                       CHARLES W. BURSON
Public Defender                     Attorney General & Reporter

SHANA McCOY-JOHNSON                 MARY ANNE QUEEN
Asst. Public Defender               Legal Assistant
118 East Market St.                     -and-           
Somerville, TN 38068-0700           ELLEN H. POLLACK
                                    Asst. Attorney General
                                   
                                    ELIZABETH T. RICE                                   
                                    District Attorney General
                                   
                         
Judge:JOHN H. PEAY

First Paragraph:

The petitioner was convicted by a jury of five counts of armed
robbery, four of which were affirmed and one of which was reversed and
dismissed by this Court in an opinion filed on March 6, 1985. 
Application for permission to appeal to the Supreme Court was denied
on June 10, 1985.  The petitioner subsequently filed a petition for
writ of habeas corpus on May 24, 1995, which the court below treated
as one for post-conviction relief and dismissed without a hearing on
the basis that it was time-barred.  He contends that this summary
dismissal was improper.  

URL:http://www.tba.org/tba_files/TCCA/BUTLERW_OPN.WP6
Opinion-Flash

STATE OF TN VS. CHRISTIAN DALE JOHNSON

Court:TCCA

FOR THE APPELLANT:                      FOR THE APPELLEE:

W. JEFFERY FAGAN                        CHARLES W. BURSON
Assistant District Public Defender      Attorney General and Reporter
P.O. Box 663
Camden, TN 38320                        SARAH M. BRANCH
                                        Counsel for the State
  
                                        ROBERT RADFORD
                                        District Attorney General
                       
Judge:DAVID H. WELLES

First Paragraph:

The Defendant, Christian Johnson, appeals as of right pursuant to Rule
3 of the TN Rules of Appellate Procedure.  He was convicted by
a Henry County jury of aggravated sexual battery and aggravated
burglary.  For the aggravated sexual battery, he was sentenced as a
Range I offender to serve eight years in the Department of Correction.
 For the aggravated burglary, he was sentenced as a Range I offender
to three years to be served concurrently with the other sentence.  The
Defendant appeals his conviction.  

URL:http://www.tba.org/tba_files/TCCA/JOHNSONC_OPN.WP6
Opinion-Flash

STATE OF TN VS. WILLIE H. JOHNSON

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

A. C. WHARTON                   CHARLES W. BURSON
Public Defender                 Attorney General

WALKER GWINN                    CYRIL V. FRASER
Assistant Public Defender       Assistant Attorney General

                                JOHN W. PIEROTTI
                                District Attorney General
    
                                TERRELL HARRIS
                                Assistant District Attorney General
                          

Judge:DAVID H. WELLES

First Paragraph:

This is an appeal as of right pursuant to Rule 3 of the TN
Rules of Appellate Procedure.  A Shelby County jury found the
Defendant guilty of burglary.  The trial judge found the Defendant to
be a career offender and sentenced him to twelve years in the
Department of Correction.  In this appeal, he argues that the evidence
presented at trial was insufficient to support the jury's finding of
guilt beyond a reasonable doubt.  

URL:http://www.tba.org/tba_files/TCCA/JOHNSONW_OPN.WP6
Opinion-Flash

JAMES LIGGINS VS. STATE OF TN

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

C. Anne Tipton              Charles W. Burson
Attorney at Law             Attorney General & Reporter 
240 North Third Street
Memphis, TN 38103           Robin L. Harris   
                            Assistant Attorney General
 
                            John W. Pierotti
                            District Attorney General

                            James Challen
                            Asst. Dist. Attorney General
                         
Judge:PAUL G. SUMMERS

First Paragraph:

The appellant, James Liggins, pled guilty to one count of aggravated
robbery and received a nine year sentence.  Thereafter, he filed for
post conviction relief alleging that he received ineffective
assistance of counsel.  Following an evidentiary hearing, the trial
court denied the petition. 

URL:http://www.tba.org/tba_files/TCCA/LIGGINS_OPN.WP6
Opinion-Flash

STATE OF TN VS. MALUNDA L. MYERS
w/DISSENTING OPINION & SEPARATE CONCURRING OPINION

Court:TCCA

For the Appellant:          For the Appellee:
James V. Ball               Charles W. Burson
Attorney at Law             Attorney General and Reporter
217 Exchange Avenue 
Memphis, TN  38105          Ellen H. Pollack
                            Assistant Attorney General                          
                          
                            John W. Pierotti
                            District Attorney General

                            Thomas Hoover and
                            Reginald R. Henderson
                            Asst. District Attorneys General
                        
Judge:David G. Hayes

First Paragraph:

The appellant, Malunda L. Myers, appeals from the verdict entered by a
Shelby County jury finding him guilty of first degree murder and
setting his punishment at life imprisonment.  On appeal, the appellant
raises the single issue of whether the evidence presented at trial was
sufficient to support a conviction for first degree murder. 
Specifically, the appellant contends that the State failed to prove
the requisite elements of premeditation and deliberation beyond a
reasonable doubt.

URL:http://www.tba.org/tba_files/TCCA/MYERSML_OPN.WP6
URL:http://www.tba.org/tba_files/TCCA/MYERSML_DIS.WP6
URL:http://www.tba.org/tba_files/TCCA/MYERSML_CON.WP6
Opinion-Flash

STATE OF TN VS. GARY RUSSELL

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:
DANIEL TAYLOR                   CHARLES W. BURSON
Assistant Public Defender       Attorney General and Reporter
227 West Baltimore Street       
Jackson, TN 38301               WILLIAM DAVID BRIDGERS
                                Assistant Attorney General
                          
                                JAMES G. (JERRY) WOODALL
                                District Attorney General
                            
                                DONALD H. ALLEN
                                Assistant District Attorney General
                          

Judge:CORNELIA A. CLARK

First Paragraph:

Defendant was indicted for violation of the worthless check law under
T.C.A. S39-14-121.  He was convicted by a jury on June 8, 1995, and
sentenced by the court on June 11, 1995, to four years as a Range I
standard offender.  On appeal, he argues that the trial court erred in
denying his motion for a judgment of acquittal.  

URL:http://www.tba.org/tba_files/TCCA/RUSSELLG_OP2.WP6
Opinion-Flash

CALVIN SHAZEL, v. STATE OF TN

Court:TCCA

For Appellant:
Katherine J. Kroeger
Assistant Public Defender
Office of the Public Defender

For Appellee:

Charles W. Burson
Attorney General & Reporter

Eugene J. Honea
Assistant Attorney General
Criminal Justice Division

Jan Hicks
Assistant District Attorney General 

Judge: GARY R. WADE

First Paragraph:

The petitioner, Calvin Shazel, appeals the trial court's denial of
post conviction relief.  Two issues are presented for review:  (1) 
whether the petitioner received the effective assistance of counsel, 
and (2)  whether the petitioner waived his right to seek
post-conviction relief.

URL:http://www.tba.org/tba_files/TCCA/SHAZEL_OPN.WP6
Opinion-Flash

STATE OF TN,v. LEE RUSSELL TOWNES,

Court:TCCA

For Appellant:                  For Appellee:

Guy T. Wilkinson                Charles W. Burson
District Public Defender        Attorney General & Reporter
            
Billy Roe                       Clinton J. Morgan
Assistant Public Defender       Assistant Attorney General

                                Robert Radford
                                District Attorney General
                        
                                Eleanor Cahill
                                Assistant District Attorney General
                        
Judge: GARY R. WADE

First Paragraph:

The defendant, Lee Russell Townes, was convicted of felony murder,
burglary and theft of property under $500.00.  The trial court imposed
a Range I, four-year sentence for the burglary conviction and an
eleven-month, twenty-nine day sentence for the theft conviction.  The
sentences are concurrent.  The life sentence for the felony murder is
to be served consecutive to the other two terms.

URL:http://www.tba.org/tba_files/TCCA/TOWNESLR_OPN.WP6
Opinion-Flash

STATE OF TN, v. TALMADGE G. WILBANKS,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

THOMAS M. VETETO            CHARLES W. BURSON
Suite 1922                  Attorney General and Reporter
100 North Main Building
Memphis, TN 38103           ROBIN L. HARRIS
                            Assistant Attorney General
 
                            JOHN W. PIEROTTI
                            District Attorney General

                            ROBERT CARTER
                            Assistant District Attorney General
 
Judge: DAVID H. WELLES

First Paragraph:

The Defendant, Talmadge G. Wilbanks, appeals as of right pursuant to
Rule 3 of the TN Rules of Appellate Procedure.  He was
convicted by a Shelby County jury of reckless driving and unlawful
carrying of a weapon.  The trial court sentenced him to ten days for
each offense, with the sentences to run concurrently, and imposed a
two hundred fifty dollar ($250) fine.  The trial court suspended the
sentences and placed the Defendant on probation for six months.  In
this appeal, the Defendant argues that the trial judge abused his
discretion by denying him judicial diversion.  

URL:http://www.tba.org/tba_files/TCCA/WILBANKS_OPN.WP6

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