TBALink Opinion-Flash

February 27, 1996 -- Volume #2 -- Number #22 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 : 6
New Opinons From TCA : 8
New Opinons From TCCA : 8
New Opinons From AG : Pending

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Jim Moore
TBALink Co-Chief Editor
Opinion-Flash

STATE OF TENNESSEE   v. HAROLD WINTER GRAY  

Court:TSC

For Appellant:          For Appellee:

B.F. "Jack" Lowery      Charles W. Burson
Lebanon, TN             Attorney General & Reporter

                        Eugene J. Honea
                        Assistant Attorney General

                        Tom P. Thompson, Jr.
                        District Attorney General

                        John D. Wootten, Jr.
                        Assistant District Attorney General

First Paragraph:

On September 15, 1992, a Wilson County grand jury indicted
Harold Winter Gray, the defendant, upon a single charge of
carnal knowledge of a female under the age of twelve.  The
indictment alleged that the offense occurred in the early
months of 1950.

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

SUSIE P. HENLEY and KENNETH HENLEY
v. 
LEWIS LATANE COBB, JR.,

Court:TSC

For Plaintiffs-Appellants:      For Defendant-Appellee:

W. Mark Ward                    Jerry D. Kizer, Jr.
Memphis, Tennessee              Dale Conder, Jr.
                                Rainey, Kizer, Butler, 
Reed L. Malkin                  Reviere & Bell, P.L.C.
Memphis, Tennessee              Jackson, Tennessee
                    
First Paragraph:

In this personal injury case, the plaintiffs, Susie and
Kenneth Henley, appeal from the Court of Appeals' affirmance
of the summary judgment granted in favor of the defendant,
Lewis Cobb, on statute of limitations grounds.  This case
presents one issue for our determination: whether the
plaintiffs are entitled to the benefit of the "saving
statute," Tenn. Code Ann. 28-1-105, so as to avoid the
statute of limitations bar under the facts of this case.

URL:http://www.tba.org/tba_files/TSC/HENLEY.OPN.WP6
Opinion-Flash

MODEL CODE OF JUDICIAL CONDUCT

Court:TSC

ATTORNEY: N/A
                        
First Paragraph:

PREAMBLE
Our legal system is based on the principle that an
independent, fair and competent judiciary will interpret and
apply the laws that govern us.  The role of the judiciary is
central to American concepts of justice and the rule of law.
 Intrinsic to all sections of this Code are the precepts
that judges, individually and collectively, must respect and
honor the judicial office as a public trust and strive to
enhance and maintain confidence in our legal system.  The
judge is an arbiter of facts and law for the resolution of
disputes and a highly visible symbol of government under the
rule of law.

URL:http://www.tba.org/tba_files/TSC/MODELJC.REV.WP6
Opinion-Flash

STATE OF TENNESSEE, v. TRACIE REEVES,   
and CONCURRING AND DISSENTING OPINION

Court:TSC

For Plaintiff-Appellee:         For Defendant-Appellant:

Charles W. Burson               Raymond L. Ivey 
Attorney General & Reporter     Ivey, Parish & Johns
                                
Michael E. Moore
Solicitor General

Michael J. Fahey, II
Assistant Attorney General

Guss Radford
District Attorney General

Eleanor Cahill
Assistant District Attorney General
                      
First Paragraph:
The defendant, Tracie Reeves, appeals from the Court of
Appeals' affirmance of the trial court's order designating
her a delinquent child.  The trial court's delinquency
order, which was entered following a jury trial, was based
on the jury's finding that the defendant had attempted to
commit second degree murder -- a violation of Tenn Code Ann.
 39-12-101.  The specific issue for our determination is
whether the defendant's actions constitute a "substantial
step," under 39-12-101(a)(3), toward the commission of
that crime.  For the following reasons, we hold that they
do, and therefore affirm the judgment of the Court of
Appeals.

URL:http://www.tba.org/tba_files/TSC/REEVES.OPN.WP6
URL:http://www.tba.org/tba_files/TSC/REEVES.DIS.WP6
Opinion-Flash

IN RE:  AMENDMENT TO THE CODE OF JUDICIAL CONDUCT, RULE 10,
RULES OF THE SUPREME COURT OF TENNESSEE

Court:TSC

ATTORNEY: N/A
                        
First Paragraph:

In 1990, this Court appointed a Commission to review the
1990 Model Code of Judicial Conduct adopted by the House of
Delegates of the American Bar Association.  After study, the
commission published for public comment its draft proposal
in November of 1993.  The Commission recommended adoption of
the Model Code with certain modifications.  In addition, the
draft proposal was submitted to the Tennessee Judicial
Conference for discussion.

URL:http://www.tba.org/tba_files/TSC/RULE10.ORD.WP6
Opinion-Flash

TANISHA LYNETTE RODDY and JANET L. RODDY
v.
VOLUNTEER MEDICAL CLINIC, INC., and EDGAR PERRY, M.D.

Court:TCA

R. D. HASH, OF MARYVILLE, TENNESSEE, FOR APPELLANTS

JOHN K. HARBER, WITH PRYOR, FLYNN, PRIEST & HARBER, 
OF KNOXVILLE, TENNESSEE, 
FOR APPELLEE VOLUNTEER MEDICAL CLINIC, INC.

EDWARD G. WHITE, II, and WAYNE A. KLINE, 
OF KNOXVILLE, TENNESSEE, 
FOR APPELLEE DR. EDGAR PERRY
                        
First Paragraph:

The Plaintiffs have appealed from a summary judgment for the
Defendants in Plaintiffs' suit alleging medical malpractice
by the Defendants.  We affirm the judgment of the trial
court.

URL:http://www.tba.org/tba_files/TCA/26RODDY.OPN.WP6
Opinion-Flash

ADAMS TV OF MEMPHIS, INC., Licensee of WHBQ-TV
v.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO,
LOCAL 474 and BERNARD LILTON,

Court:TCA

GARY K. SMITH and ARCHIE K. SANDERS, 
Shuttleworth, Smith, McNabb & Williams, 
Memphis, Attorneys for Appellants

DAN M. NORWOOD and JAMES R. BECKER, JR., 
Norwood, Phillips, Deboo, Howard & Grubb, 
Memphis, Attorneys for Appellees.
                        
First Paragraph:

Adams TV of Memphis, Inc. (plaintiff) filed suit in the
Circuit Court of Shelby County against the International
Brotherhood of Electrical Workers, Local 474 (IBEW) and
Bernard Lilton (defendant) seeking to have that court
vacate an arbitration award that reinstated Liltons
employment with plaintiff after being terminated.  The trial
court denied plaintiffs application to vacate. 

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

GORDON BURKS, v. BELZ-WILSON PROPERTIES,

Court:TCA

Mark Ledbetter, Memphis, Tennessee
Dan T. Bing, Memphis, Tennessee
Attorneys for Plaintiff/Appellant.

Joe D. Spicer,
Marc O. Dedman,
SPICER, FLYNN & RUDSTROM, Memphis, Tennessee
Attorney for Defendant/Appellee Pride Construction Company
                        
First Paragraph:

Appellant, Gordon Burks, (Burks) brought this negligence
action against Appellee, Pride Construction Company, Inc.,
(Pride) and various other defendants, in the Circuit Court
of Shelby County.  Pride's motion for summary judgment was
granted and, from that judgment, Burks appeals.

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

ANNA KATHLEEN, ACKERMAN LEGGETT, v.TERRY LYLE LEGGETT,

Court:TCA

DANIEL D. WARLICK, Warlick & Todd, 
Nashville, Attorney for Defendant/Appellant.

GENEVIEVE M. DIX, Memphis, Attorney for Plaintiff/Appellee.
                       
First Paragraph:

Anna Kathleen Ackerman Leggett (plaintiff) obtained an
absolute divorce from Terry Lyle Leggett (defendant) in
the Circuit Court of Shelby County based upon a partial
consent agreement between the parties.  The trial court also
divided the marital estate and awarded plaintiff
rehabilitative alimony and attorneys fees.  The only issue
presented on appeal by defendant is the manner of division
of defendants retirement pension as part of the marital
estate.  We find no error and affirm.

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

CITY OF MARYVILLE, 
v. 
ROBERT N. EDMONDSON and wife, FRANCES L. EDMONDSON,

Court:TCA

Roy D. Crawford of Maryville
For Appellee

Joe Costner of Maryville
For Appellants
                    
First Paragraph:

This appeal involves a challenge to a condemnation
proceeding in which the City of Maryville condemned a
portion of the defendants' real property in order  to
construct and maintain a sewer line.  The facts are as
follows.

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

DEBBRA MATTHEWS, QUENSTON COLEMAN, NAACP, CHATTANOOGA
CHAPTER,
v.
STEVE CONRAD, GENE ROBERTS, MAYOR CITY OF CHATTANOOGA, CITY
COUNCIL MEMBERS,

Court:TCA

MYRON BERNARD MCCLARY
Attorney for Appellants

RANDALL L. NELSON
WM. SHELLEY PARKER, JR.
Attorneys for Appellees
                     
First Paragraph:

Plaintiffs-Appellees, Debbra Matthews, Quenston Coleman, and
the NAACP, Chattanooga Chapter, filed suit alleging that
Ordinance #10079, which amended the Chattanooga City
Charter, is void.  Defendants-Appellees, Steve Conrad, Mayor
Gene Roberts, and the City Council Members, moved to dismiss
the Appellants' suit for failure to state a claim upon which
relief can be granted pursuant to Tenn. R. Civ. P. 12.02(6)
and for failure to join indispensable parties pursuant to
Tenn. R. Civ. P. 19.  The chancellor granted the Appellees'
motion and Appellants perfected the present appeal.

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

CAROL JEAN MOSE, v. JEFFREY NORMAN MOSE,

Court:TCA

Thomas W. Hardin
Hardin & Parks
Attorneys for Plaintiff/Appellant/Counter-Appellee

William C. Barnes
Mary Frances Lyle
Bruce, Weathers, Corley, Dughman & Lyle
Attorneys for Defendant/Appellee/Counter-Appellant
                        
First Paragraph:

This is an appeal from a non-jury divorce action heard in
Chancery form in Maury County, Tennessee.  The Complaint
alleging irreconcilable differences or, in alternative,
inappropriate marital conduct was filed by the appellant,
Carol Jean Mose, on January 7, 1994.  The hearing of all
issues was tried October 14, 1994 and by final order entered
November 4, 1994, Mrs. Mose was awarded an absolute divorce
from the appellee, Jeffrey Norman Mose, on the grounds of
inappropriate marital conduct.  The trial court ordered
distribution of marital assets, payment of medical
insurance, attorneys' fees, and alimony.  Mrs. Mose filed
two motions to alter or amend the final order pursuant to
Rule 59.04, T.R.C.P., on November 23, 1994 and November 29,
1994.  

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

MICHAEL J. REYNOLDS,        
v.
METROPOLITAN NASHVILLE/ DAVIDSON COUNTY, RONNIE SAVAGE, ED
RIGSBY, and UNKNOWN OFFICERS OF THE METROPOLITAN NASHVILLE/
DAVIDSON COUNTY POLICE DEPARTMENT VICE SQUAD,

Court:TCA

E. E. EDWARDS, III
EDWARDS & SIMMONS
Nashville, Tennessee
Attorney for Plaintiff/Appellant

WILLIAM L. PARKER, JR.
METROPOLITAN ATTORNEY
Criminal Justice Center
Nashville, Tennessee
Attorney for Defendants/Appellees
                       
First Paragraph:

The Circuit Court of Davidson County dismissed the
plaintiffs action for failure to prosecute.  We affirm.
The plaintiff, Michael J. Reynolds, working as an undercover
agent for the Metropolitan Nashville Police Department was
shot by a police officer during a drug raid.  Ten days later
the plaintiff signed a release in consideration of the
Metropolita

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

STATE OF TENNESSEE, v.MARK BORUM,   

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Lee Ofman                   Charles W. Burson
Attorney at Law             Attorney General & Reporter
Franklin, TN 37064          Nashville, TN 37243-0493

                            Renee F. Videlefsky
                            Assistant Attorney General

                            Joseph D. Baugh
                            District Attorney General

                            Mark L. Puryear, III
                            Asst District Attorney General

First Paragraph:

The appellant, Mark Borum, was convicted of two (2) counts
of aggravated rape, a Class A felony, one (1) count of
aggravated robbery, a Class B felony, and one (1) count of
aggravated burglary, a Class C felony, following his pleas
of guilty to these offenses.   The trial court found that
the appellant was a standard offender and imposed the
following sentences:

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

STATE OF TENNESSEE, v. STAN JERNIGAN,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Lionel R. Barrett, Jr.      Charles W. Burson
Attorney at Law             Attorney General & Reporter
Nashville, TN 37201
                            Mary M. Bers
                            Assistant Attorney General

                            Victor S. Johnson, III
                            District Attorney General

                            William R. Reed
                            Asst District Attorney General

First Paragraph:

The Davidson County Grand Jury returned a fourteen count
indictment against the appellant, Stan Jernigan.  The
indictment charged the appellant with two (2) counts of
aggravated rape, a Class A felony, eleven (11) counts of
aggravated sexual battery, a Class B felony, and (1) count
of sexual battery, a Class E felony.  The appellant entered
pleas of guilty to five (5) counts of attempt to commit
aggravated sexual battery, a Class C felony, pursuant to a
plea bargain agreement.  Since the parties could not reach
an agreement on the appropriate punishment, a sentencing
hearing was conducted by the trial court.  

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

STATE OF TENNESSEE, v. VICTOR D. MCMILLER,  

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

J.D. HICKMAN                CHARLES W. BURSON
803 Liberty Drive           Attorney General and Reporter
Blountville, TN 37617       
                            JOHN P. CAULEY
                            Assistant Attorney General
    
                            GREELEY WELLS
                            District Attorney General

                            EDWARD E. WILSON
                            Assistant District Attorney

First Paragraph:

Appellant was convicted of aggravated burglary under Tenn.
Code Ann.  39-14-403 (1991) and theft of property under
Tenn. Code Ann.  39-14-103 (1991).  He was sentenced to ten
(10) years in the Department of Corrections and fined five
thousand dollars ($5,000.00).  In this appeal, Appellant
argues that the evidence at trial was insufficient as a
matter of law to sustain the convictions.  Specifically,
Appellant asserts that the testimony at trial was so
contradictory that a rational trier of fact could not have
believed the States theory of the case.  

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

STATE OF TENNESSEE, v. WILLIE ROBERT SEAY,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Comer L. Donnell            Charles W. Burson
District Public Defender    Attorney General & Reporter 
213 North Cumberland St.
Lebanon, TN   37087         William David Bridgers
    (On Appeal)             Assistant Attorney General
                            Criminal Justice Division
James R. Stallings, Jr.     450 James Robertson Parkway
J. Robert Hamilton          Nashville, TN 37243-0493
225 East Market St. 
Lebanon, TN   37087         Doug Hall
(New Trial Hearing)         District Attorney General

Richard Brodhead            David Durham
307 W. Main Asst. Dist.     Attorney General
Lebanon, TN   37087         
       (At Trial)           
                        
First Paragraph:

The appellant, Willie Robert Seay, was convicted by a jury
of two counts of sale of cocaine over .5 grams.  Sentenced
as a Range II multiple offender, the trial court imposed
consecutive fifteen-year sentences running consecutively to
his existing sentences.  The appellant brings this appeal
claiming that:

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

STATE OF TENNESSEE, v.SHEILA ELAINE THOMAS, 

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

On Appeal Only              Charles W. Burson
Thomas T. Woodall           Attorney General & Reporter
Attorney at Law
203 Murrell Street          Clinton J. Morgan
P.O. Box 1075               Assistant Attorney General
Dickson, TN 37056       

At Trial Only
J. Daniel Freemon           Donald W. Schwendimann
Attorney at Law             District Attorney General
Lawrenceburg, TN 
                        
First Paragraph:

This is an appeal as a matter of right from the appellant's
convictions on 11 counts of aggravated burglary and 15
counts of theft, for which she was sentenced to an effective
sentence of 24 years and six months in the Tennessee
Department of Correction ("TDOC").  The appellant was
originally charged with a 37-count indictment.  The multiple
charges were resolved as follows:

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

STATE OF TENNESSEE, v. DARWIN L. WILD,          

Court:TCCA

For the Appellant:          For the Appellee:

Edward C. Miller            Charles W. Burson
Public Defender             Attorney General of Tennessee
P.O. Box 416                and
Dandridge, TN 37725         Hunt S. Brown
                            Asst Attorney General of TN
    
                            Alfred C. Schmutzer, Jr.
                            District Attorney General
                            and
                            James L. Gass
                            Asst District Attorney General
                         
First Paragraph:

The defendant, Darwin L. Wild, is before us in an
interlocutory appeal by permission, T.R.A.P. 9, from the
order of the Jefferson County Circuit Court affirming the
prosecuting attorneys denial of his application for
pretrial diversion.  The sole issue for our review is
whether the trial court erred in affirming the denial.

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

STATE OF TENNESSEE, v. THOMAS WILLIAMS, 

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Ricky L. Jenkins            Charles W. Burson
115 South Main Street       Attorney General & Reporter 
Sparta, TN    38583
(On Appeal)                 Ellen H. Pollack
                            Assistant Attorney General
Joe L. Finley, Jr.          Criminal Justice Division
Asst. Public Defender       
Cookeville, TN   38501
(At Trial)                  William E. Gibson
                            District Attorney General

                            Anthony Craighead
                            John A. Moore
                            Asst. Dist. Attorneys General

First Paragraph:

A jury convicted the appellant, Thomas Williams, of both
forgery and passing a forged instrument and imposed a $405
fine.  Sentenced as a Range III persistent offender, the
appellant received concurrent six-year sentences.  In this
appeal, he raises eight issues as follows:

URL:http://www.tba.org/tba_files/TCCA/WILLIAMS.OP2.WP6
Opinion-Flash

STATE OF TENNESSEE, v. STEVEN WOODARD,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Charles W. Burson               Jay Norman
Attorney General & Reporter     Attorney at Law
                                213 Third Avenue, North
Michael J. Fahey, II            Nashville, TN 37201
Assistant Attorney General
Criminal Justice Division

Victor S. Johnson III   
District Attorney General

Roe Ellen Coleman
Asst. Dist. Attorney General
                      
First Paragraph:

The appellee, Steven Woodard, was indicted for possession of
a controlled substance with the intent to sell.  He filed a
motion to suppress arguing that the evidence was obtained by
an illegal search.  The trial court granted appellee's
motion.  The state appealed.  We affirm.

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

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