TBALink Opinion-Flash

December 05, 1996 -- Volume #2 -- Number #110

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.

This Issue IN THIS ORDER:
00-New Opinons From TSC
01-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
06-New Opinons From TCA
03-New Opinons From TCCA

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TBALink Chief Editor


AMENDMENT TO RULE 11,
RULES OF THE SUPREME COURT OF TENNESSEE

SUBSTITUTE JUDGE CONSENT FORM

Court:TSC - Rules                          

Judge: BIRCH

First Paragraph:

Rule 11, Rules of the Tennessee Supreme Court, is hereby amended by
adding the following new section: VII.  Courts to be Open; Substitute
Judges.

URL:http://www.tba.org/tba_files/TSC_Rules/RUL11AMD_ORD.WP6
URL:http://www.tba.org/tba_files/TSC_Rules/RUL11AMD_FRM.WP6
Opinion-Flash

CYNTHIA ALBRIGHT
vs. 
JOSEPH L. MERCER, III

Court:TCA

ATTORNEY FOR DEFENDANT/APPELLANT    ATTORNEY FOR PLAINTIFF/APPELLEE

KEITH JORDAN, ESQ.                  R. E. LEE DAVIES
227 Second Avenue North             Hartzog, Silva & Davies
Suite 360-M                         123 Fifth Avenue North
Nashville, Tennessee 37201          P.O. Box 664
                                    Franklin, Tennessee 37065-0664

Judge: LEWIS

First Paragraph:

This is an appeal by defendant/appellant, Joseph L. Mercer, III, from
a decision of the Chancery Court for Williamson County awarding
plaintiff/appellee, Cynthia Albright, attorney's fees of $1,000.00.
AFFIRMED AND REMANDED.

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

ELIZABETH ANN BOUTIN
vs. 
FRANCIS JOHN BOUTIN

Court:TCA

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

Virginia Lee Story              Ewing Sellers
Franklin, Tennessee             SMITH & SELLERS
                                Murfreesboro, Tennessee
                                
Judge: KOCH

First Paragraph:

This appeal involves a provision in a marital dissolution agreement
requiring the father to prepay his child support.  Upon discovering
that one of his children had decided not to complete high school, the
father stopped paying the agreed amount of child support and filed a
petition to terminate his child support obligation on the ground that
the prepayment agreement was premised on the children's continued
enrollment in high school.  The Chancery Court for Williamson County
denied the petition, and the father perfected this appeal.  We have
determined that the trial court correctly enforced the amended marital
dissolution agreement and accordingly affirm the judgment as modified
herein.

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

JOHNNY L. BUTLER
VS.
STATE OF TENNESSEE

Court:TCA

FOR THE APPELLANT:                  FOR THE APPELLEE:

JOHNNY L. BUTLER, pro se            CHARLES W. BURSON
F.R.N. 12790-076                    Attorney General & Reporter
USP Box PMB
Atlanta, GA 30315                   ELLEN H. POLLACK
                                    Asst. Attorney General
                                    450 James Robertson Pkwy.                           
                                    Nashville, TN  37243-0493
                
                                    JOHN W. PIEROTTI
                                    District Attorney General

                                    C. ALANDA HORNE
                                    Asst. District Attorney General
                                    201 Poplar, Suite 301
                                    Memphis, TN 38103-1947                         

Judge: PEAY

First Paragraph:

The petitioner, who is serving a sentence for a federal court
conviction, has filed two petitions attacking prior state convictions
which were used to enhance the sentence for the federal conviction. 
These two petitions, called petitions for the writ of coram nobis or
for habeas corpus, were dismissed by the trial court without a hearing
on the basis that they were actually petitions for post-conviction
relief and barred by the statute of limitations.  We agree with the
trial court.

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

COLEMILL ENTERPRISES, INC.,
vs.
JOE HUDDLESTON, Commissioner of 
Tennessee Department of Revenue

Court:TCA

ATTORNEY FOR PLAINTIFF/APPELLANT    ATTORNEYS FOR DEFENDANT/APPELLEE

RICHARD L. COLBERT                  CHARLES W. BURSON
Cornelius & Collins                 Attorney General and Reporter
Suite 2700
Nashville City Center               STEVEN M. RODERICK
511 Union Street                    Assistant Attorney General
P. O. Box 190695                    Attorney General's Office
Nashville, TN 37219                 Tax Division
                                    404 James Robertson Parkway
                                    Suite 2121
                                    Nashville, TN 37243-0489

Judge: LEWIS

First Paragraph:

This is an appeal by plaintiff/appellant, Colemill Enterprises, Inc.
("Colemill"), from a decision of the chancery court which affirmed the
determination of defendant/appellee, Joe Huddleston, Commissioner of
the Tennessee Department of Revenue ("Commissioner"), that Colemill
owed certain state and local sales and use taxes.

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

ALLEN D. CURTIS
and 
CAROLYN JUNE CURTIS
vs. 
WILLIAM M. RICE, and
RICE & PAPUCHIS CONSTRUCTION
COMPANY, INC.

Court:TCA

ATTORNEY FOR PLAINTIFF/APPELLANT    ATTORNEY FOR DEFENDANTS/APPELLEES

JERRY C. SHELTON                    JAMES C. BRADSHAW, III
Lyell, Seaman & Shelton             Wyatt, Tarrant & Combs
611 Commerce Street, Suite 2704     313 East Main Street, Suite 1
Nashville, TN 37203                 Hendersonville, TN 37075

ATTORNEY FOR INTERVENING PLAINTIFF/APPELLANT

CLINTON L. KELLY
Kelly and Kelly
629 East Main Street
Hendersonville, TN 37075

Judge: LEWIS

First Paragraph:

This is an appeal by plaintiffs/appellants, Allen D. Curtis and his
wife, Carolyn June Curtis, from a decision of the chancery court which
dissolved the partnership formed between Curtis and
defendant/appellee, William M. Rice, and which distributed the
partnership's assets. REVERSED AND REMANDED.

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

FREDDIE LEE JONES
VS.
MICHAEL C. GREENE, COMMISSIONER, 
TENNESSEE DEPARTMENT OF SAFETY

Court:TCA

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

E.E. Edwards, III               Charles W. Burson
James A. Simmons                Attorney General and Reporter
Nashville, Tennessee
                                Rebecca Lyford
                                Counsel to the State
                                Nashville, Tennessee                         

Judge: KOCH

First Paragraph:

This appeal involves over $45,000 seized during the search of a house
in Memphis for illegal drugs.  After the Commissioner of Safety
ordered the forfeiture of the money, the person claiming the funds
filed a petition for review in the Chancery Court for Davidson County
asserting that the forfeiture statutes deprived him of his
constitutional right to a jury trial and violated the Equal Protection
and Due Process Clauses of the United States and Tennessee
Constitutions.  The trial court upheld the forfeiture statutes and the
forfeiture, and this appeal followed.  We have determined that
Tennessee's forfeiture statutes are constitutional and that the record
contains substantial and material evidence supporting the
commissioner's forfeiture order. Accordingly, we affirm the judgment.

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

STATE OF TENNESSEE
VS.
RUSSELL A. BURRIS

Court:TCCA

ROBERT T. VAUGHN                CHARLES W. BURSON
    -and-                       Attorney General & Reporter
JOHN B. BLAIR, III              
176 Second Ave. N., Ste. 406    DARIAN B. TAYLOR
 Nashville, TN 37201            Asst. Attorney General
                                450 James Robertson Pkwy.
                                Nashville, TN  37243-0493
                
                                RANDALL NICHOLS
                                District Attorney General

                                ROBERT L. JOLLEY, JR.
                                Asst. District Attorney General
                                City-County Bldg.           
                                Knoxville, TN 37902
Judge: PEAY

First Paragraph:

The defendant pled guilty in 1995 to voluntary manslaughter for
killing  the victim in 1980.  After a hearing he was sentenced to an
indeterminate sentence of four to ten years, the first thirty days to
be served in county jail, the next five months on work release, and
the remaining nine years and six months on probation.  As a condition
of probation, the court below ordered the defendant to pay restitution
of approximately ninety five thousand dollars ($95,000).  In this
appeal as of right, the defendant challenges the sentencing court's
order of restitution.  The State contends that the defendant was
improperly sentenced to split confinement.  Because we find the
defendant's sentence to be illegal, we remand this matter for
resentencing.

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

TIM DENTON
vs.
STATE OF TENNESSEE

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:  

William Leibrock                Charles W. Burson
339 Main Street                 Attorney General & Reporter
Newport, TN  37821
                                Christina S. Shevalier
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN  37243-0493

                                Alfred C. Schmutzer, Jr.
                                District Attorney General

                                James B. Dunn 
                                and 
                                Richard Vance 
                                Asst. Dist. Attorneys General
                                339A East Main Street   
                                Newport, TN  37821
                       

Judge: BURCH

First Paragraph:

Following a jury trial, Appellant was convicted of the crimes of
aggravated rape, aggravated kidnapping and armed robbery.  Co-
defendant Wiley was convicted of aggravated rape and aggravated
kidnapping.  Two other co-defendants were acquitted of all charges. 
The convictions of Appellant and Wiley were affirmed on appeal.

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

STATE OF TENNESSEE
VS.  
RALPH NELMS

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Larry R. Dillow             Charles W. Burson
Attorney at Law             Attorney General & Reporter 
421 E. Market Street
P.O. Box 3886               Hunt S. Brown 
Kingsport, TN 37664         Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            H. Greeley Wells, Jr.
                            District Attorney General

                            David Overbay   
                            Asst. Dist. Attorney General
                            P.O. Box 526
                            Blountville, TN 37617-0526                           

Judge: SUMMERS

First Paragraph:

The appellant, Ralph Nelms, was indicted for multiple counts of
selling cocaine, possession of cocaine, possession of marijuana, and
possession of drug paraphernalia. Following a summary administrative
forfeiture, he moved the trial court to dismiss his criminal charges. 
He argued that the double jeopardy clause prohibited further criminal
prosecution.  The trial judge denied the motion. The appellant's
request for an interlocutory appeal was denied. The case is before us
on extraordinary appeal. AFFIRMED.

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

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