TBALink Opinion-Flash

February 16, 1996 -- Volume #2 -- Number #18 Opinion-Flash

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 : 4
New Opinons From TCCA : 10
New Opinons From AG : Pending

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Jim Moore
TBALink Co-Chief Editor
Opinion-Flash

CMT, INC., v. WEST END CHURCH OF CHRIST, 

Court:TCA

ROBERT N. GODDARD, 
GODDARD & GAMBLE, Maryville, for Plaintiff Appellant.

R. LOY WALDROP, JR., and DAVID N. GARST, LEWIS, KING, KRIEG,
WALDROP & CATRON, P.C., Knoxville, for Defendants-Appellees,
Acme Construction, Inc., and Cincinnati Insurance Company.

JOHN T. McARTHUR, Maryville, for Amicus Curiae Carolinas
Tennessee Building Material Association, Inc.
                        
First Paragraph:

The determinative issue in this appeal, is the
interpretation of Tennessee Code Annotated Section
66-11-145.      West End Church of Christ contracted with
Appellee Acme for the construction of a church.  Acme
contracted with Pioneer Construction Company, who in turn
subcontracted work to Appellant CMT, Inc.  Appellant
performed work in five phases between July 1992 and June
1994.  It sent invoices to Pioneer requesting payment within
a month of the completion of each phase.  

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

IN THE MATTER OF THE ESTATE OF PAUL F. GRAY, JR.,
v. 
NTERNAL REVENUE SERVICE,     

Court:TCA

GARY R. ALLEN, DAVID ENGLISH CARMACK and 
MARION E. M. ERICKSON, Attorneys, Tax Division, 
Department of Justice, Washington, D.C. for appellant.

HON. CARL K. KIRKPATRICK, United States Attorney, 
Of Counsel.

THOMAS A. CALDWELL, GLADYS SMITY MYNALL and STEPHEN J.
BOLIN, Baker, Donelson, Bearman & Caldwell, P.C.,
Chattanooga for Appellee.
                        
First Paragraph:

The dispute in this case is whether an unsecured debt owed
by the decedent to the United States Internal Revenue
Service for income taxes takes precedence over the surviving
spouse's elective share of the decedent's estate to which
she would otherwise be entitled under the provisions of
T.C.A.  31-4-101.  The trial court held that the surviving
spouse's elective share should be paid prior to unsecured
debts of the decedent including the claim of the I.R.S. for
income taxes.  We affirm the judgment of the trial court.

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

HOOPER RICHARDS and wife, MAUDE RICHARDS,
v.
BILLY RAY TAYLOR and wife DIANNE ELAINE TAYLOR,

Court:TCA

MARK A. SKELTON, Rogersville, for Appellants.

TOM O. ROGAN, Rogersville and LAWRENCE A. WELCH, JR. 
Greenville, for appellees.
                      
First Paragraph:

The dispositive issue in this case is whether the
consideration recited in a warranty deed from the plaintiffs
to the defendants is so vague and uncertain as to render the
deed subject to rescission.  The chancellor held that it was
and ordered the deed set aside.  We respectfully disagree
and reverse the judgment of the trial court.

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

WACHOVIA BANK CARD SERVICES, v. DONALD E. OVERTON, 

Court:TCA

RON CUNNINGHAM, Knoxville, for Plaintiff-Appellee.

GLENNA W. OVERTON, Knoxville, for Defendant-Appellant.
                        
First Paragraph:

In this action on debt, the Trial Court entered judgment
against defendant.  Defendant has appealed, insisting the
judgment is void on the grounds the Court did not have
personal jurisdiction over defendant.

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

STATE OF TENNESSEE  v. RICHARD LEE ANTHONY, 

Court:TCCA

ROBERT S. PETERS, Swafford, Peters & Priest, Winchester
Attorney for Appellant 

CHARLES W. BURSON, Attorney General and Reporter, Nashville.
WILLIAM DAVID BRIDGERS, Assistant Attorney General
Attorneys for Appellee
                        
First Paragraph:

Richard Lee Anthony ("defendant") appeals his conviction in
the Circuit Court of Coffee County for aggravated robbery
and aggravated burglary.  The trial court imposed sentences
of 20 years and 10 years, respectively, to be served
consecutively.  Defendant has presented three issues for our
consideration: 

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

STATE OF TENNESSEE v. JAMES A. BREWER and C. DONALD FROST

Court:TCCA

FOR THE APPELLANT, BREWER:      FOR THE APPELLEE:

Lucien Dale                     Charles W. Burson
221 Fourth Ave. North           Attorney General
Fifth Floor
Nashville, TN 37219             Byron M. Jones
                                Assistant Attorney General
FOR THE APPELLANT, FROST:       450 James Robertson Parkway
                                Nashville, TN 37243-0493
David L. Raybin
Hollins, Wagster & Yarbrough    Victor S. Johnson, III
Nashville, TN                   District Attorney General

                                Paul DeWitt
                                Byron M. Jones
                                Asst. Dist. Attorneys   
                                Nashville, TN
                        
First Paragraph:

The appellant James A. Brewer  was convicted of fourteen
counts and the appellant C. Donald Frost of sixteen counts,
respectively, of violating the securities laws of the State
of Tennessee.  Both appellants were also convicted of four
counts of obtaining money by false pretenses.  Each
appellant received an effective sentence of seven and one
half years, being ordered to serve one hundred days in
confinement in the Davidson County Workhouse with the
balance of the sentences to be served on probation.  The
appellant Brewer was ordered to pay fines in the sum of
$3,600.00 and the appellant Frost was ordered to pay fines
in the sum of $4,200.00. 

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

STATE OF TENNESSEE, v. ROBERT TERRY CROWSON,

Court:TCCA

For the Appellant:              For the Appellee:

Thomas T. Woodall               Charles W. Burson
203 Murrell Street              Attorney General of TN
P.O. Box 1075                   and
Dickson, TN 37065-1075          Charlette Reed Chambers
(On appeal only)                450 James Robertson Parkway
                                Nashville, TN 37243-0493
Robert Marlow 
Asst District Public Defender   William Michael McCown
P.O. Box 1119                   District Attorney General
Fayetteville, TN 37334          and
(At trial and on appeal)        Gary M. Jones 
                                Assistant District Attorney
                                and
                                Robert Crigler
                                Assistant District Attorney
                                Shelbyville, TN 37160

First Paragraph:

The defendant, Robert Terry Crowson, was convicted for
second degree murder in a jury trial in the Circuit Court of
Bedford County.  He was sentenced as a Range I, standard
offender to eighteen years and six months in the custody of
the Department of Correction.  He appeals as of right and
contends (1) that the evidence is insufficient to support a
second degree murder conviction and (2) that his sentence is
excessive because of the trial court's failure to apply
certain mitigating factors.

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

STATE OF TENNESSEE, v. BILLY GENE EARNEST,

Court:TCCA

For the Appellant:              For the Appellee:

A. Russell Brown                Charles W. Burson
Assistant Public Defender       Attorney General of TN
112 Court Square                and
P.O. Box 39                     Eugene Honea              
Lafayette, TN 37083             Asst Attorney General of TN
(At trial and on appeal)        450 James Robertson Parkway
                                Nashville, TN 37243-0493
Chris Eulberg
(Pro Hac Vice)                  Robert W. Stack
925 N.W. 6th                    
(At trial)                      404 James Robertson Parkway
                                Nashville, TN 

                                Tom P. Thompson, Jr.   
                                District Attorney General   
                                and
                                John Wooten               
                                Asst District AG
                                Hartsville, TN 

First Paragraph:

The defendant, Billy Gene Earnest, appeals as of right from
his judgment of conviction in the Criminal Court of Macon
County for second degree murder, a Class A felony.  He was
sentenced to forty years in the custody of the Department of
Correction as a Range III, persistent offender.  In this
appeal as of right, the defendant presents the following
issues:

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

STATE OF TENNESSEE, v. LANNY FUSON, 

Court:TCCA

For the Appellant:              For the Appellee:

Campbell Smoot                  Charles W. Burson
District Public Defender        Attorney General of TN
    and                         and 
Rachel E. Willis                George Linebaugh
Assistant Public Defender       Counsel for the State
Tullahoma, TN                   Nashville, TN 

                                C. Michael Layne
                                District Attorney General
                                Manchester, TN 

First Paragraph:

The defendant, Lanny Fuson, appeals as of right from the
revocation of his probation by the Coffee County Circuit
Court.  He contends that the trial court abused its
discretion by revoking his probation.

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

MICHELLE PIERRE HILL,   v. STATE OF TENNESSEE,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Michelle P. Hill, Pro Se        Charles W. Burson
R.M.S.I./U-5-B-                 Attorney General & Reporter 
Nashville, TN                   
                                Clinton J. Morgan
                                Counsel for the State
                                Nashville, TN

                                Joseph D. Baugh, Jr.
                                District Attorney General

                                Ronald L. Davis
                                Asst. Dist. Attorney General
                                Franklin, TN 

First Paragraph:

Appellant, Michelle P. Hill, was charged with first degree
murder.  Pursuant to a negotiated agreement, appellant pled
guilty to second degree murder in 1993.  He was sentenced as
a range II multiple offender and received 40 years.  He
filed a pro se petition for post-conviction relief.  The
trial court dismissed his petition without conducting an
evidentiary hearing on November 29, 1994.  On April 10,
1995, appellant filed a pro se Motion for Out of Time Notice
of Appeal.  

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

STATE OF TENNESSEE,v. JAMES E. KENNER,

Court:TCCA

For Appellant:              For Appellee:
Monte D. Watkins            Charles W. Burson
Attorney                    Attorney General and Reporter
Nashville, TN               
                            John Patrick Cauley         
                            Assistant Attorney General
                            Nashville, TN 

                            Nicholas D. Bailey
                            Asst. District Attorney
                            Nashville, TN
                        
First Paragraph:

The defendant, James E. Kenner, was convicted of five counts
of aggravated burglary, five counts of theft over $1000.00,
and one count of unlawful possession of a weapon.  The trial
court imposed sentences of fifteen years on each of the
aggravated burglary convictions, twelve years on each of the
theft convictions, and eleven months and twenty-nine days on
the weapon conviction.  Each of the aggravated burglary
sentences are to be served consecutively to each other but
concurrently with the corresponding sentence for theft.  The
unlawful possession of a weapon conviction is to be served
concurrently with one of the theft offenses.  The defendant
qualifies as a career offender.  The effective sentence is
seventy-five years at 60%.

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

TERRY LEWIS, 
v.
METROPOLITAN GENERAL SESSIONS COURT FOR NASHVILLE and
DAVIDSON COUNTY, and STATE OF TENNESSEE,
                    
Court:TCCA

For the Appellant:          For the Appellees:

John E. Herbison            Charles W. Burson
Attorney                    Attorney General and Reporter
Nashville, TN  37204        
                            Merrilyn Feirman 
                            and 
                            Joel W. Perry 
                            Assistant Attorneys General
                            Nashville, TN 

                            William F. Howard
                            Metropolitan Attorney 
                            Nashville, TN

First Paragraph:

The petitioner, Terry Lewis, appeals the trial court's
denial of his petition for writ of habeas corpus.
Two issues are presented for our review: (1)    whether the
trial court properly dismissed the petition based upon lack
of subject matter jurisdiction; and (2) whether the
petitioner's judgment of conviction in the general sessions
court was facially invalid.

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

STATE OF TENNESSEE, v. JOHN ERIC LIPSCOMB,  

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

W. Casey Reed               Charles W. Burson
Attorney at Law             Attorney General & Reporter
Nashville, TN               Nashville, TN
                            
                            Ellen H. Pollack
                            Assistant Attorney General
                            Nashville, TN
                            
                            Victor S. Johnson, III
                            District Attorney General
                            Nashville, TN

                            John C. Zimmermann
                            Asst District Attorney General
                            Nashville, TN
                        
First Paragraph:

The appellant, John Eric Lipscomb, appeals as of right from
a judgment of the trial court revoking his Community
Corrections sentences and sentencing him to serve four (4)
years in the Department of Correction in each count of a
four-count indictment and ordering that three of the
sentences be served consecutively.  The effective sentence
imposed was twelve (12) years.  Two issues are presented for
review.  The appellant contends that the sentences imposed
are excessive; and the trial court abused its discretion in
ordering consecutive sentencing. 

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

STATE OF TENNESSEE,  v. JOHN DENNIS RUSHING,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

JEFFREY A. DeVASHER         CHARLES W. BURSON
Sr Asst Public Defender     Attorney General and Reporter

JOAN A. LAWSON              CHARLOTTE H. RAPPUHN
Sr Asst Public Defender     Assistant Attorney General
Nashville, TN               Nashville, TN   

                            VICTOR S. JOHNSON
                            District Attorney General

                            KATIE MILLER
                            Asst District Attorney General
                            Nashville, TN

First Paragraph:

The Defendant appeals as of right from a jury verdict
convicting him of felony murder and especially aggravated
robbery stemming from the death of Howard Palmer.  The trial
court sentenced the Defendant to serve a life sentence for
the felony murder and a consecutive sentence of twenty years
for the especially aggravated robbery.

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

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