TBALink Opinion-Flash

February 21, 1996 -- Volume #2 -- Number #20 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 : 10
New Opinons From TCCA : 11
New Opinons From AG : Pending

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Jim Moore
TBALink Co-Chief Editor
Opinion-Flash

FELTON ALLEN and wife, BARBARA ALLEN,
v. 
DELTA MATERIALS HANDLING, INC.

Court:TCA

Stuart A. Wilson,
WILSON, McRAE, IVY, SEVIER, McTYIER and STRAIN, 
Memphis, Tennessee
Attorney for Defendant/Appellant.

Marvin A. Bienvenu, Jr.,
GATTI, KELTNER, BIENVENU & MONTESI, Memphis, Tennessee
Attorney for Plaintiffs/Appellees.
                        
First Paragraph:

The plaintiffs, Felton Allen and wife, Barbara Allen sued
Delta Materials Handling, Inc. (Delta) for injuries
sustained by Mr. Allen when he was struck by a forklift that
had been leased from Delta to his employer, The Regina
Company.  The complaint alleges that Delta was negligent in
leasing or renting the forklift to Allen's employer when
Defendant knew or should have known that the brakes were
defective.

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

AUSTIN POWDER COMPANY, RENDRO CONSTRUCITON COMPANY, and D &
P CONSTRUCTION COMPANY,
v.
WALTER THOMPSON,

Court:TCA

E. Jerome Melson of Watson, Hollow & Reeves of Knoxville
For Plaintiffs-Appellees

Henry T. Ogle of Knoxville
For Defendant-Appellant
                        
First Paragraph:

This appeal involves a suit for specific performance of an
agreement to compromise and settle a damage suit. 
Plaintiffs, Austin Powder Company, Renfro Construction
Company, and D & P Construction Company (hereinafter
plaintiffs or Austin Powder) sued defendant, Walter
Thompson, seeking specific performance of an alleged
agreement settling an earlier filed lawsuit (underlying
litigation) brought by Thompson against plaintiffs.

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

BOBBY BLACKMON, v. STEVEN F. GLASER,

Court:TCA

BOBBY BLACKMON
Middle Tennessee Reception Center
Nashville, Tennessee 
PLAINTIFF/APPELLANT, PRO SE

Curtis M. Lincoln
WOODARD, LINCOLN and CRON
Hendersonville, Tennessee 
ATTORNEY FOR DEFENDANT/APPELLEE
                        
First Paragraph:

The plaintiff, Bobby Blackmon has appealed from an order of
the Trial court concluding as follows: IT IS THEREFORE
ORDERED, ADJUDGED AND DECREED that the Defendant, Steven F.
Glaser's, motion for summary judgment is well taken for the
reasons heretofore set out, and shall be granted.The costs
of this cause are taxed to the Plaintiff, Bobby Blackmon,
for which execution may issue, if necessary.

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

WANDA GAYE SEAL COLLINS,  v. CHARLES EDWARD COLLINS,

Court:TCA

JULIA A. MARTIN, Knoxville, for Appellant.

AARON M. FELDMAN, Knoxville, for Appellee.
                        
First Paragraph:

This is a rather sordid divorce case.  The chancellor
granted a divorce and custody of the parties minor child to
the appellee.  We affirm the judgment of the trial court.

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

FRANKLIN SHANE HALSTEAD,
VS.     
NILES-BOLTON ASSOCIATES; DEREK BARTON COMPANY, INC.; DEREK
BARTON COMPANY, INC., d/b/a DEREK BARTON TENNIS COURTS; and
DEREK BARTON TENNIS COURTS,

Court:TCA

For Franklin            For Niles-Bolton Associates:
Shane Halstead:
Daniel L. Clayton       Jefferson C. Orr
Kinnard & Clayton       Manier, Herod, Hollabaugh & Smith 
Nashville, TN           Nashville, TN

                        For Derrick Barton Company, Inc.:

                        Raymond D. Lackey
                        Smith, Lackey, McHale & Whaley
                        Brentwood, TN
                        
First Paragraph:

This appeal involves a personal injury action in which the
plaintiff sought to file a separate suit against previously
unknown defendants in accordance with Tenn. Code Ann. 
20-1-119 (1994).  The Fifth Circuit Court for Davidson
County granted the new defendants motions for summary
judgment on the ground that the complaint was filed one day
late.  The plaintiff asserts on this appeal that the trial
court erred by failing to extend the time for filing his
amended complaint by three days in accordance with Tenn. R.
Civ. P. 6.05.  We have determined that Tenn. R. Civ. P. 6.05
does not extend the deadline for taking the actions required
by Tenn. Code Ann.  20 1-119 and, therefore, affirm the
trial court.

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

DOROTHY HUNTER    
v. 
REGIS HAIRSTYLISTS and REGIS CORPORATION          :

Court:TCA

LINDA J. HAMILTON MOWLES, WITH LEWIS, 
KING, KRIEG, WALDROP & CATRON, 
OF KNOXVILLE, TENNESSEE, FOR APPELLANTS

BRUCE D. FOX, WITH RIDENOUR, RIDENOUR & FOX, 
OF CLINTON, TENNESSEE, FOR APPELLEES
                        
First Paragraph:

The pivotal issue on this appeal is whether or not the trial
court was in error in denying Defendants' motion for a new
trial based on newly discovered evidence.  We hold it was,
and reverse for the reasons hereinafter stated.

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

KIMBERLY LYNN MUSICK KYKER  v. TONY JAMES KYKER 

Court:TCA

GARY L. ADKINS, WITH BILL HOTZ & ASSOCIATES, 
OF KNOXVILLE, TENNESSEE, FOR APPELLANT 

JERRY K. GALYON, WITH GALYON & STOKES, 
OF SEVIERVILLE, TENNESSEE, FOR APPELLEE
                        
First Paragraph:

The  sole issue on this appeal from a judgment in a divorce
proceeding is:  Was it in the best interest of the parties'
infant daughter for her custody to be awarded to her father
instead of her mother?  We hold it was not, and reverse for
the reasons hereinafter stated.

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

JOE IVA MURPHY, v. STATE OF TENNESSEE DEPARTMENT OF SAFETY,

Court:TCA

Lionel R. Barrett, Jr., Nashville, Tennessee
Attorney for Plaintiff/Appellant.

Charles W. Burson, Attorney General and Reporter
Rebecca Lyford, Counsel to the State
Attorney for Defendant/Appellee.
                     
First Paragraph:

Appellant, Joe Iva Murphy, appeals from the judgment of the
Chancery Court for Davidson County, affirming the decision
of the Tennessee Department of Safety ("Department") that
Appellant's 1989 Chevrolet Astro van and $1,589 be forfeited
under the Tennessee Drug Control Act.

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

KAREN REDMON RUYLE, v. BRIAN L. RUYLE,

Court:TCA

Julia J. Tate,
GRACEY, RUTH, HOWARD, TATE & SOWELL, Nashville, Tennessee
Attorney for Defendant/Counter-Plaintiff/Appellant.

J. Randall Hooper,
HOOPER & HOOPER, Brentwood, Tennessee
Attorney for Plaintiff/Counter-Defendant/Appellee.
                        
First Paragraph:

This appeal concerns the primary custody of Paul Alexander
Ruyle, the minor son of Appellee, Karen Redmon Ruyle
("Mother") and Appellant, Brian L. Ruyle ("Father").  The
final divorce decree entered by the trial court awarded the
parties joint custody, with Mother receiving primary
physical possession.  The sole issue on appeal is whether
the trial court committed error in its award of primary
custody.  For reasons hereinafter set forth, we affirm.

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

SHIRLENE WEAVER and husband, FLOYD E. WEAVER,
v. 
CITY OF OAK RIDGE,    

Court:TCA

JOHN C. DUFFY, Watson, Hollow & Reeves, Knoxville, for
Appellant.

W. CLARK MEREDITH, Joyce, Meredith, Flitcroft & Normand, Oak
Ridge, for Appellees.
                      
First Paragraph:

This appeal arises from a judgment of the trial court
awarding damages to the plaintiff, Shirelene Weaver, for
injuries which allegedly resulted from a collision between
an Oak Ridge Police car and an automobile being driven by
Ms. Weaver.  The trial court found the police officer to be
one hundred percent at fault and awarded Mrs. Weaver
$28,608.00 in damages.  The City of Oak Ridge has appealed
claiming that the trial court erred in its apportionment of
fault and the amount of the damages awarded.  We affirm the
trial court.

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

STATE OF TENNESSEE, v. FRANK EDMUND ARNOLD,

Court:TCCA

FOR THE APPELLANT:      FOR THE APPELLEE:

W. LEE LACKEY           CHARLES W. BURSON
P.O. Box 1328           Attorney General and Reporter
Savannah, TN  38372
                        ELIZABETH T. RYAN
                        Assistant Attorney General

                        ROBERT RADFORD
                        District Attorney General

                        JOHN OVERTON
                        Asst District Attorney General

First Paragraph:

The Defendant appeals as of right from a jury verdict
convicting him of five counts of possession of a controlled
substance with intent to sell or deliver.  For these Class D
felonies, he was sentenced as a Range III persistent
offender to five concurrent sentences of ten years each in
the Department of Correction.  On this appeal, he argues
that the evidence is insufficient to support a conviction of
possession with the intent to sell or deliver.  He also
argues that the sentence imposed by the trial court was
excessive.  We affirm the judgment of the trial court.

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

MICHAEL J. BOYD, v. STATE OF TENNESSEE,

Court:TCCA

For the Appellant:          For the Appellee:

Daniel A. Seward            Charles W. Burson
Pillow-McIntyre House       Attorney General and Reporter
707 Adams   
Memphis, TN  38105          Rebecca L. Gundt
                            Assistant Attorney General
(ON APPEAL)                 Criminal Justice Division
                        
                            John W. Pierotti
                            District Attorney General

                            Terry Harris
                            Asst. District Attorney General
                       
First Paragraph:

The appellant, Michael Joe Boyd, whose legal name is now
Mika'eel Abdullah Abdus Samad, appeals as of right from the
dismissal of his petition for post-conviction relief by the
Criminal Court of Shelby County.  On March 10, 1988, the
appellant was convicted by a Shelby County jury of felony
murder and two counts of robbery with a deadly weapon.  The
appellant was sentenced to death by electrocution for the
murder conviction and to life imprisonment for each of the
two counts of robbery with a deadly weapon.  The trial court
ordered that the sentences be served consecutively.  On
September 24, 1990, the Tennessee Supreme Court affirmed the
appellant's convictions and sentences, State v. Boyd, 797
S.W.2d 589 (Tenn. 1990), and on January 22, 1991, the United
States Supreme Court denied certiorari , Boyd v. Tennessee,
498 U.S. 1074, 111 S.Ct. 800 (1991).

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

RICKY CALDWELL, v. STATE OF TENNESSEE,  

Court:TCCA

For the Appellant:          For the Appellee:

Martha Yoakum               Charles W. Burson
District Public Defender    Attorney General and Reporter
Post Office Box 386 
Tazewell, TN  37879         Michelle L. Lehmann
                            Assistant Attorney General  
Charles Herman              Criminal Justice Division
Asst. Public Defender       
    
John Beaty                  William Paul Phillips       
Asst. Public Defender       District Attorney General

                            Michael O. Ripley
(ON APPEAL)                 Asst. District Attorney General

First Paragraph:

The appellant, Ricky Caldwell, appeals from the summary
dismissal of his petition for post-conviction relief.  The
appellant contends that the post conviction court erred in
finding that the petition was barred by the three year
statute of limitations.

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

ERNEST LOYD RAY, v. STATE OF TENNESSEE, 

Court:TCCA

FOR THE APPELLANT:      FOR THE APPELLEE:

VANEDDA PRINCE          CHARLES W. BURSON
P.O. Box 26             Attorney General and Reporter
Union City, TN   
                        ELLEN H. POLLACK
                        Assistant Attorney General

                        PHILLIP BEVINS
                        District Attorney General

                        JAMES E. LANIER
                        Assistant District Attorney General

First Paragraph:

This is an appeal pursuant to Rule 3 of the Tennessee Rules
of Appellate Procedure.  The Defendant filed a petition for
post-conviction relief alleging ineffective assistance of
counsel.  After conducting an evidentiary hearing, the trial
court found that the Defendant had failed to establish that
he was entitled to relief due to the ineffective assistance
of his trial counsel, but the trial court also found that
the Defendant was denied the opportunity for review by the
Tennessee Supreme Court through no fault of his own.  We
agree with the trial court and grant the Defendant
post-conviction relief to allow him to seek review by the
Supreme Court on a delayed basis.

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

L. H. HILL, v. STATE OF TENNESSEE,  

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

WALKER GWINN                CHARLES W. BURSON
Asst Public Defender        Attorney General and Reporter
201 Poplar, Suite 2-01
Memphis, TN                 MICHELLE L. LEHMANN
                            Assistant Attorney General

                            JOHN W. PIEROTTI
                            District Attorney General

                            REGINALD HENDERSON
                            Asst District Attorney General
                        
First Paragraph:

This is an appeal pursuant to Rule 3 of the Tennessee Rules
of Appellate Procedure.  The Defendant filed a petition for
post-conviction relief alleging ineffective assistance of
counsel.  After conducting an evidentiary hearing, the trial
court found that the Defendant had failed to establish that
he was entitled to relief due to the ineffective assistance
of counsel; therefore, the trial court denied the Defendant
post-conviction relief.  We affirm the judgment of the trial
court.

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

STATE OF TENNESSEE, v. FREDERICK JEFFERSON, 

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:


GREGORY D. SMITH                CHARLES W. BURSON
One Public Square               Attorney General/Reporter
Suite 321
Clarksville, TN  37040          MICHELLE L. LEHMANN
(Appeal)                        Attorney for the State                                                                                              450 James Robertson Pkwy.
TOM CRIDER                      Nashville, TN
Public Defender
107 South Court Square          CLAYBURN L. PEEPLES
Trenton, TN  38382              District Attorney General
(Trial and Appeal)      
                                GARRY BROWN
                                Asst. District AG

First Paragraph:

The defendant was indicted and convicted at a jury trial of
the offense of possession of marijuana, a controlled
substance, while incarcerated in the Gibson County jail. 
For this conviction he was sentenced to five years as a
Range I standard offender and assessed a fine of one
thousand dollars ($1000).

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

STATE OF TENNESSEE, v. ROBERT LINTON LAMAR, 

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

VIRGINIA LEE STORY          CHARLES W. BURSON
136 4th Ave., South         Attorney General & Reporter
P. O. Box 1608
Franklin, TN                RENEE F. VIDELEFSKY
                            Attorney for the State
                            
                            ROBERT "GUS" RADFORD
                            District Attorney General

                            VICKI L. SNYDER
                            Asst. District Attorney General

First Paragraph:

The defendant was charged in the indictment with
first-degree murder and was found guilty at a jury trial of
second-degree murder.  For this conviction he received a
maximum Range I sentence of twenty-five years.  It is from
this sentence that the defendant appeals as of right.

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

STATE OF TENNESSEE, v. ERIC CHRISTOPHER MILLER,

Court:TCCA

For Appellant:                  For Appellee:
C. Michael Robbins              Charles W. Burson
Asst. Dist. Public Defender     Attorney General & Reporter
Somerville, TN
                                Rebecca L. Gundt        
                                Assistant Attorney General

                                Jerry Norwood
                                Asst. District AG

First Paragraph:

The defendant, Eric Christopher Miller, was convicted of
possession of over .5 grams of cocaine with the intent to
sell or deliver.  The trial court imposed a Range I sentence
of ten years.

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

STATE OF TENNESSEE, 
v.
THOMAS M. MORGAN and WILLIAM C. TILSON, 

Court:TCCA

FOR THE APPELLANTS:         FOR THE APPELLEE:

Mack Garner                 Charles W. Burson
District Public Defender    Attorney General
318 Court Street
Maryville, TN               Ruth A. Thompson
                            Assistant Attorney General
                        
                            Mike Flynn
                            District Attorney General

                            Philip H. Morton
                            Asst. Dist. Attorney General
                          
First Paragraph:

The appellants, Thomas M. Morgan and William C. Tilson,
appeal from convictions for the offenses of burglary, a
class D felony,  and possession of burglary tools, a class A
misdemeanor, entered by the Circuit Court of Blount County. 
The appellants received sentences of twelve years for the
burglary and concurrent sentences of eleven months and
twenty-nine days for possession of the burglary tools. 
Morgan and Tilson challenge the sufficiency of the evidence
introduced in support of their convictions and the
admissibility of a recorded conversation between the
appellants.  Morgan also disputes his sentencing as a career
offender.

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

STATE OF TENNESSEE, v. DAVID WILLARD PHIPPS, JR.

Court:TCCA

For the Appellant:              For the Appellee:

Lionel R. Barrett, Jr.          Charles W. Burson
Washington Square Two           Attorney General of TN
222 Second Avenue, North        and
Nashville, TN 37201             Christina S. Shevalier                    
                                Asst Attorney General of TN

                                G. Robert Radford            
                                District Attorney General   
    
First Paragraph:


The state was granted an interlocutory appeal from the Henry
County Circuit Court's order that essentially bars the state
from seeking the death penalty for the defendant, David
Willard Phipps, Jr., upon his retrial for first degree
murder.  The defendant was originally convicted of first
degree murder, but this court reversed the conviction and
remanded the case for a new trial.  State v. Phipps, 883
S.W.2d 138 (Tenn. Crim. App. 1994).  The state did not seek
the death penalty in the first trial, but filed a Notice of
Intent to Seek the Death Penalty after the case was
remanded.

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

MORRIS ALLEN RAY, v. STATE OF TENNESSEE,

Court:TCCA

FOR THE APPELLANT:      FOR THE APPELLEE:

JOHN R. CALDWELL        CHARLES W. BURSON
P.O. Box 898            Attorney General and Reporter
Fayetteville, TN        
                        CHARLETTE REED CHAMBERS
                        Counsel for the State

                        MIKE MCCOWN
                        District Attorney General

                        GARY M. JONES
                        ROBERT CRIGLER
                        Assistant District Attorneys General

First Paragraph:

The Petitioner appeals from the denial of his petition for
post-conviction relief after a hearing was conducted by the
trial court.  He was convicted of first degree murder. 
After exhausting his direct appeals, he brought this
petition for post conviction relief.  The trial court denied
the Petitioner's post-conviction petition because the
Petitioner did not meet the burden of proof necessary to
grant the Petitioner a new trial.  We agree with the trial
court.

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

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