TBALink Opinion-Flash

March 04, 1996 -- Volume #2 -- Number #23 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 : 30
New Opinons From TCCA : 22
New Opinons From AG : Pending

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Jim Moore
TBALink Co-Chief Editor
Opinion-Flash

JOHN WAYNE BALDWIN, v. SHERRY DARLENE BALDWIN,

Court:TCA

JEAN MUNROE, Knoxville, for Appellant.

A. BENJAMIN STRAND, JR., Dandridge, for Appellee.
                     
First Paragraph:

This appeal arises from a divorce case.  All issues were
stipulated except the issue of appellant's right of
visitation with the parties' minor child.  The trial court
granted restricted visitation privileges to the appellant. 
We reverse the judgment of the trial court and remand the
case for a further hearing.

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

Robert Bean, Franklin Shaffer, David Autry, Mack Roberts,
Kevin Antle, Tom Nichols, Tammie Beasley, and Roxanne Luce,
v.
Ned Ray McWherter, in his capacity as Governor of the State
of Tennessee, Charles W. Burson, Attorney General of the
Sate of Tennessee, Tennessee Wildlife Resources Commission,
and Gary Myers, Director of the Wildlife Resources Agency,

Court:TCA

ELIZABETH P. McCARTER
Senior Counsel
Office of the Attorney General

F. CLAY BAILEY, JR.
Tune, Entrekin & White
ATTORNEY FOR PLAINTIFFS/APPELLEES
                        
First Paragraph:

Defendants/appellants appeal from the chancery courts
decision overruling appellants motion for summary judgment
and holding that Tennessee Code Annotated section
70-4-403(1), (3) unlawfully delegates legislative authority
to appellants, the Tennessee Wildlife Resources Commission
(TWRC) and the Commissioner of Agriculture
(Commissioner).

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

CANONIE ENERGY, INC., and WGI, INC.
v.
RODNEY KING, MARK HOLBROOK, AMERICAN RESOURCES MANAGEMENT,
INC., AMERICAN GAS TECHNOLOGIES, INC., AMERICAN ENERGY
EXPLORATION, INC., BERROD, INC., RICK CASTOR, and McCROME,
LTD., INC.

Court:TCA

WILLIAM P. SNYDER and ADRIENNE L. ANDERSON OF KNOXVILLE FOR
APPELLANTS MARK HOLBROOK, McCROME, LTD., INC., AMERICAN
RESOURCE MANAGEMENT, INC., AMERICAN ENERGY EXPLORATION,
INC., and AMERICAN GAS TECHNOLOGIES, INC.

H. BRUCE GUYTON OF KNOXVILLE FOR APPELLEES
                        
First Paragraph:

The Defendants appeal a summary judgment entered in favor of
the Plaintiffs for the enforcement of a settlement
agreement. The facts of this case are somewhat complex. 
Canonie Energy, Inc. (CEI) and WGI, Inc. (WGI), which shall
be collectively referred to as Plaintiffs, entered into a
venture with American Resource Management, Inc. (ARM),
American Energy Exploration, Inc., (AEX) and Coal Creek
Manufacturing Company (Coal Creek).   The venture, called
"the Blue Gem Project," was for the exploration of oil and
natural gas in Anderson and Morgan counties.  The venture
also included the drilling and construction of oil and
natural gas wells and the sale of oil and natural gas
produced by those wells.

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

DORA BELL CLARK, v. JAMES LEWIS CLARK,      

Court:TCA

SAM  P. ZERILLA
Martin, Zerilla & Moon
Attorney for Appellant

PATRICIA ANN ODELL
Higgs, Armstrong, White & Johnson, Attorneys
Attorney for Appellee
                       
First Paragraph:

These parties were divorced in March, 1986.  They have one
minor child whose custody was awarded to the appellee
mother.  The initial amount of child support is unclear; but
whatever the amount it was increased to $200.00 per month by
Order entered on May 23, 1990 pursuant to petition filed and
heard.

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

FIRST AMERICAN TRUST COMPANY, Executor of the Estate of
Frances A. Oman, Deceased,
v.
FRANKLIN-MURRAY DEVELOPMENT COMPANY, L.P.,

Court:TCA

CHARLES A. TROST
JOSEPH A. WOODRUFF
Nashville, Tennessee 

THOMAS V. WHITE
Nashville, Tennessee
Attorneys for Plaintiff/Appellee

JOHN A. DAY
DONALD CAPPARELLA
Nashville, Tennessee

GUY C. NICHOLSON
Los Angeles, CA 
Attorneys for Defendant/Appellant
                        
First Paragraph:

The Chancery Court of Williamson County awarded the earnest
money in a real estate transaction to the seller, finding
that the purchaser had breached the contract.  On appeal the
purchaser contends that the seller failed to deliver a
marketable title and that there are factual disputes that
preclude granting summary judgment to the seller.  We affirm
the trial courts decision.

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

JAMES T. FITE, v. STATE OF TENNESSEE, BD OF PAROLES, ET AL.,

Court:TCA

JAMES T. FITE, #124241
N.E.C.C.
Mountain City, Tennessee
Pro Se/Petitioner/Appellant

CHARLES W. BURSON
Attorney General and Reporter

EUGENE J. HONEA
Assistant Attorney General
Attorney for Respondents/Appellees
                      
First Paragraph:

James T. Fite, an inmate in the Tennessee State Correctional
System, petitioned the Chancery Court of Davidson County for
a Writ of Certiorari.  Mr. Fite asked that the court review
the refusal of the Board of Paroles to release him on
parole.  The court dismissed his petition for lack of
subject matter jurisdiction, because it had been filed more
than sixty days after the Board's decision.  We affirm the
trial court, but base our decision on the ground that Mr.
Fite has failed to state a claim upon which relief can be
granted.  See Tenn. R. Civ. P. 12.02(6).

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

DEMETREOUS FLENGAS v. KIMBERLY DENISE FLENGAS

Court:TCA

MARVIN BERKE OF CHATTANOOGA FOR APPELLANT

LESLIE B. McWILLIAMS OF CHATTANOOGA FOR APPELLEE
                      
First Paragraph:

Demetreous Flengas, the husband, and Kimberly Denise
Flengas, the wife, were granted an absolute divorce in
September 1994 in Hamilton County.  Shortly thereafter, the
Trial Court entered its memorandum opinion and order which
directed the division of the parties' assets and
liabilities.  It is from this order that the husband
appeals.

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

LUVELL L. GLANTON, ET AL., 
v. 
SHELBY INSURANCE COMPANY, ET AL.,

Court:TCA

Tusca R. S. Alexis, Nashville, Tennessee
Attorney for Plaintiffs /Appellants.

C. Hayes Cooney, 
WATKINS, McGUGIN, McNEILLY & ROWAN, Nashville, Tennessee
Attorney for Defendants/Appellees.
                        
First Paragraph:

This case is the converse of the typical case where the
insured is insisting that the insurer settle a claim against
the insured within policy limits, thus protecting the
insured from a potential judgment in excess of the policy
limits.

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

BONNIE LYNNE LUDWIG HEZEL, v. WILLIAM MORRIS HEZEL,

Court:TCA

WILLIAM MORRIS HEZEL
Memphis, Tennessee 
Appellant Pro Se

CHARLES A. SEVIER
The Sevier Law Firm
Memphis, Tennessee
Attorney for Appellee
                        
First Paragraph:

It is necessary that we reiterate the in-court statement of
the Presiding Judge that our review of this case is de novo
on the record, accompanied with the presumption that the
judgment is correct unless the evidence otherwise
preponderates.  Tenn. R. App. P., Rule 13(d).  We do not try
the case de novo; our jurisdiction is to review for errors
of fact or law, subject to the presumption, and we cannot
substitute our judgment for that of the trial judge.

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

FLOYD EZELL JACKSON, v. STELLA L. SMITH JACKSON,

Court:TCA

Stephen R. Leffler, Memphis, Tennessee
Attorney for Plaintiff/Appellant.

Mitchell D. Moskovitz, Memphis, Tennessee
Attorney for Defendant/Appellee.
                       
First Paragraph:


The marriage between Floyd Ezell Jackson (Husband) and
Stella L. Jackson (Wife) ended after some 21 years when the
trial court found that both parties shall be awarded a
divorce pursuant to T.C.A.  36-4-129.

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

LINELL JEFFRIES, v. JOE JEFFRIES, JR.,

Court:TCA

LINELL JEFFRIES
Memphis, TN
Pro Se Appellant

SAM ZERILLA
Memphis, Tennessee
Attorney for Appellee
                        
First Paragraph:

This action for damages for malicious prosecution by brother
against brother was filed in the General Sessions Court and
in course was heard de novo by the Circuit Court without a
jury.  Judgment was entered for the plaintiff for $2,500.00
compensatory damages and $500.00 punitive damages.  The
defendant appeals pro se, and presents for review three
issues which we reproduce in haec verba:

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

CYNTHIA C. LEES, Individually and as Trustee and Next of
Friend of CAROLYN HOLDER GLASGOW, and R. H. PURSELL,
Executor for the Estate of WAYNE B. GLASGOW, SR.,
v.
HICKORY POINTE LIMITED PARTNERSHIP, NATIONSBANK OF
TENNESSEE, N.A., and ROBERT E. WOOD,

Court:TCA

Phillip North and David Kimbrough of
North, Pursell & Ramos of Nashville
For Appellees

Randal S. Mashburn and Darwin A. Hindman, III, of
Baker, Donelson, Bearman & Caldwell of Nashville
For Appellants
                        
First Paragraph:

This case involves the validity of two judgment liens on
real estate.  Plaintiffs, Cynthia Lees and R H. Pursell,
obtained judgments against Wayne B. Glasgow, Jr., in Maury
County, Tennessee and Williamson County, Tennessee,
respectively.  Both judgments were recorded in the
Register's Office of Sumner County, Tennessee, on December
18, 1992.

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

JACK LINDSAY, v. GAYLE MARTIN LINDSAY,

Court:TCA

L. CAESAR STAIR, III, BERNSTEIN, STAIR & McADAMS, 
Knoxville, for Plaintiff-Appellant.

BILL W. PETTY and WILLIAM T. MAGILL, O'CONNOR, 
PETTY, CHILD & BOSWELL, 
Knoxville, for Defendant-Appellee.
                      
First Paragraph:

The Trial Judge entered judgment reducing the amount of
alimony payable by defendant, and appellant has appealed.
The parties were divorced in 1978, with an award of alimony
of $3,500.00 per month to the wife.  In 1986 the Court
ordered a reduction of the alimony to $2,580.00 per month.
The petition giving rise to this appeal was filed in 1995,
and responding to the petition after an evidentiary hearing,
the Trial Court, in arriving at his judgment, said:

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

JAMES E. LINKOUS, and wife, PATRICIA FERGUSON LINKOUS,
v. 
DOUGLAS E. BURKHART and WILLIAM A. BURKHART,

Court:TCA

PHILLIP C. LAWRENCE, 
Poole, Lawrence, Thornbury, Stanley & Morgan, 
Chattanooga, for Appellants.

L. HALE HAMILTON, 
Spears, Moore, Rebman & Williams, 
Chattanooga, for Appellees.
                       
First Paragraph:

This is a boundary line dispute.  After a lengthy bench
trial the Chancellor established a common boundary between
the lands of the parties and entered judgment accordingly. 
From this judgment this appeal resulted.  We affirm the
judgment of the trial court.

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

PATSY McMICHAEL, v. JOHN McMICHAEL, 

Court:TCA

SANDRA G. OLIVE, Olive & Olive, Knoxville, for Appellant.

JOHNNY V. DUNAWAY, LaFollette, for Appellee.
                        
First Paragraph:

This appeal results from the trial court's judgment
modifying  the provisions of a marital dissolution agreement
entered into by these parties at the time of their divorce
and incorporated into the final judgment.  Mr. McMichael
petitioned the trial court for a modification because of a
substantial decrease in his salary.  The trial court granted
him relief.  Mrs. McMichael sought relief in this court. 
See McMichael v. McMichael, No. 03A01-9402-CH 00044,

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

ROBERT P. MASON, v. RICK WYKLE and wife CHERYL WYKLE    

Court:TCA

DEBORAH A. YEOMANS, Johnson City, for appellants.

SANDRA LEE STANBERY, Greenville, for appellee.
                      
First Paragraph:

This case arose from a Detainer Warrant filed in the general
sessions court by the plaintiff, Robert Mason, against the
defendants, Rick and Cheryl Wykle.  The Wykles answered the
warrant, denying that they owed the amount sued for by the
plaintiff.  In addition, they filed a counter complaint 
alleging, breach of contract, outrageous conduct, property
damage and violation of the Tennessee Consumer Protection
Act, T.C.A.  47-18-101. 

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

JAMES MILLER    
v. 
MILLER BROTHERS FARMS, INC. GARRY MILLER and ALLEN MILLER

Court:TCA

JOHN W. CLEVELAND OF SWEETWATER FOR APPELLANT

JEFFREY L. CUNNINGHAM OF ATHENS FOR APPELLEES
                       
First Paragraph:

This is the second appeal in a continuing dispute between
four of the sons of Andrew K. Miller, deceased; namely,
James Miller, Larry L. Miller, Garry Miller and Allen
Miller.

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

FRANK O'LEARY AND WIFE, JOANN O'LEARY, AND LARRY JAMES
BROCK, SR., AND WIFE, HAZEL CHADWICK BROCK,
v.
LEONARD E. HALL AND WIFE, ANN C. HALL, AND JAMES CLEMONS AND
WIFE, RUTH CLEMONS,

Court:TCA

GARY R. PATRICK
PATRICK, BEARD, RICHARDSON, P.C.
Chattanooga, Tennessee
Attorney for Appellants

MICHAEL A. WAGNER
WAGNER, NELSON & WEEKS
Chattanooga, Tennessee
Attorney for Appellees
                        
First Paragraph:

Plaintiffs-Appellants, Frank and Joanne O'Leary and Larry J.
and  Hazel C. Brock, filed suit requesting an injunction to
prohibit the Defendants-Appellees, Leonard and Ann Hall and
James and Ruth Clemons, from subdividing the Halls' lot,
which lies between the O'Learys' and the Brocks' land.  The
lower court denied Appellants' request for an injunction.

URL:http://www.tba.org/tba_files/TCA/O'LEARY.OPN.WP6
Opinion-Flash

CHARLES GEORGE PETTY, v. SUSAN FLORINTINE PETTY,

Court:TCA

DICK CLARK
CLARK, BALTIMORE AND REEVES
Nashville, Tennessee
Attorney for Appellant

DOUGLAS THOMPSON BATES, III
Centerville, Tennessee
Attorney for Appellee
                        
First Paragraph:

This appeal raises several questions concerning the lower
court's division of marital property pursuant to a final
decree of divorce.  Plaintiff-Appellant, Charles George
Petty ("Husband"), appeals the trial court's award of
certain real property to Defendant-Appellee, Susan
Florintine Petty ("Wife"), as well as the lower court's
valuation of Husband's pension.

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

MICHAEL RAY PINSON, 
v.
O.K. SMITH, JR., M.D.
and     
NELWYN TODD PORTER, Executrix of the Estate of IRA FORD
PORTER, M.D., Deceased

Court:TCA

LEE M. GREER, III               RALPH WOODSON FARMER, JR.
Greer & Greer                   HUBERT BAILEY JONES
114 S. Poplar Street            Farmer, Moore, Jones, 
Paris, TN                       Hamilton & Lay
P.O. Box 385                    202 S. Main Street      
Attorney/Plaintiff/Appellant    P. O. Box 763
                                Dyersburg, TN  38025-0763
                                Attorneys for Appellee
Gilreath & Associates           
SIDNEY W. GILREATH              THOMAS H. RAINEY
RICHARD L. DUNCAN               MARTY R. PHILLIPS
550 Main Avenue                 Rainey, Kizer, Butler, 
Knoxville, TN                   Reviere & Bell
Jackson, TN  38302-1147         Attorneys for Appellee
Attorneys/Plaintiff/Appellant   
                                JAMES M. GLASGOW
                                127 S. First Street
                                P. O. Box 250
                                Union City, TN  38281-0250
                                Attorney for Appellee

First Paragraph:

This action for damages for asserted medical malpractice,
filed October 15, 1987 in the Circuit Court of Weakley
County, was dismissed on Motion for Summary Judgment, Rule
56, Rules of Civ. Pro.  The Order granting the Motion, which
concluded the rights of the plaintiff, was entered on August
18, 1994.

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

WILLIAM HEATH RILEY, v. KAREN DIANA RILEY,  

Court:TCA

DOROTHY J. POUNDERS
MARTIN B. DANIEL
Memphis, Tennessee 
Attorneys for Appellant

LANGDON UNGER, JR.
Martin, Tennessee 
Attorney for Appellee
                        
First Paragraph:

The issue is whether the trial court erred in confiding
custody of the four-year old son of the parties to his
father.  We think not, because appellate review is de novo
on the record accompanied with the presumption that the
judgment is correct unless the preponderance of the evidence
otherwise preponderates.  Tenn. R. App. P., Rule 13(d).

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

STELLA ROETGER, v. DAVID A. ROETGER,

Court:TCA

F. DULIN KELLY
Hendersonville, Tennessee 
Attorney for Plaintiff/Appellee

TIMOTHY L. TAKACS
Hendersonville, Tennessee
Attorney for Defendant/Appellant
                        
First Paragraph:

The trial court granted Mrs. Roetger an absolute divorce and
custody of the parties' minor child.  The court also divided
the marital property, and ordered Mr. Roetger to pay child
support, rehabilitative alimony and attorney fees.  Mr.
Roetger appealed the award of alimony and attorney fees.  We
affirm the trial court.

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

SAFECO INSURANCE COMPANY OF AMERICA,
v.
SIMPSON BRIDGE COMPANY, INC.,  
and                           
WATER AND LIGHT COMMISSION OF GREENEVILLE AND THE TOWN OF
GREENEVILLE, TENNESSEE,

Court:TCA

DEAN B. FARMER of HODGES, DOUGHTY & CARSON, Knoxville,
for Appellant SAFECO INSURANCE COMPANY OF AMERICA.

DAVID THOMAS BLACK of KISER AND BLACK, Maryville, 
for Appellant SIMPSON BRIDGE COMPANY, INC.

RONALD W. WOODS and DANIEL D. COUGHLIN 
of MILLIGAN & COLEMAN, Greeneville, for Appellees.
                       
First Paragraph:

This is an action brought by Safeco Insurance Company of
America (Safeco) pursuant to the declaratory judgment act,
T.C.A. 29-14-101, et seq.  Safeco is the surety on a
$488,100 performance bond issued to the Water & Light
Commission of Greeneville and the Town of Greeneville,
Tennessee (Greeneville).  The bond was issued to secure the
performance of Simpson Bridge Company, Inc.'s (Simpson
Bridge) obligations under a contract with Greeneville for
the construction of improvements to the Town's water system
as well as the construction of a new raw water pumping
system (collectively referred to as "the project").

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

MARK SCOTT SMITH v. FAITH HORNE SMITH

Court:TCA

MICHAEL A. NOLAN OF KNOXVILLE FOR APPELLANT

MARK SCOTT SMITH, Appellee, Pro Se
                        
First Paragraph:

Appellant Faith Horne Smith appeals a divorce decree entered
by the Chancery Court for Knox County wherein she raises the
following four issues:

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

RASHELL (SHELLY) TEEGARDIN  and husband MARK A. TEEGARDIN,
v.
DENNIS AUSTIN and TACC, INC., and BEAULIEU OF AMERICA, INC.,

Court:TCA

LARRY W. BRIDGESMITH and FAITH KALMAN REYES of CONSTANGY, 
BROOKS & SMITH, Nashville, for Appellant.

JOHN D. BARRY of MILLIGAN, BARRY, HENSLEY & EVANS, 
Chattanooga, for Appellees. 
                    
First Paragraph:

In this appeal, we are asked to decide if an insurer is
obligated to pay its insured's attorney a fee for collecting
the insurer's subrogation interest.  Under the facts of this
case, we find the insurer is not obligated for the
attorney's fee, and reverse the trial court's holding to the
contrary.

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

DONALD L. TATUM and DOROTHY R. TATUM 
v. 
VERTIS J. WORSHAM and FREDA JOHNSON MICHEL

Court:TCA

WILLIAM G. SCHWALL OF CHATTANOOGA FOR APPELLANT

MICHAEL A. ANDERSON OF CHATTANOOGA 
FOR DONALD L. TATUM and DOROTHY R. TATUM 

W. FRANK BROWN, III, OF CHATTANOOGA 
FOR FREDA JOHNSON MICHEL
                        
First Paragraph:

This case originated from a complaint by Donald L. Tatum and
Dorothy R. Tatum against Vertis J. Worsham for specific
performance of a land sale agreement and damages.  Mr. and
Mrs. Tatum amended their complaint to join Freda Johnson
Michel, a second mortgage holder of the subject property. 
Thereafter, Ms. Michel filed a cross-claim against Ms.
Worsham, principally seeking a determination of the balance
owing on the second mortgage which was in dispute.

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

RUTH ANN TRIPP IND. and as next friend of SHARA TRIPP and
SHAWNA TRIPP,
v.
DAVID HURST TRIPP, PAMELA ANN TRIPP AND MILDRED GOODMAN,

Court:TCA

Clinton R. Anderson of Morristown
For Appellant

Clarlie Allen of Oneida
For Appellees
                       
First Paragraph:

This is primarily a will contest suit brought by Ruth Ann
Tripp, the widow of Douglas Tripp, a deceased beneficiary
under the will of Nelia Hurst, deceased.  Ms. Tripp brought
suit in her own behalf and on behalf of the deceased
beneficiary's two minor grandchildren.  The complaint seeks
construction of the Nelia Hurst will to determine ownership
of certain real property described in the complaint.  The
suit also seeks a determination of plaintiff's rights to a
driveway easement granted to her by deed.  

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

TERESA J. WICKS, et al.,
v. 
VETERANS STEEL ERECTION CO., INC., et al.,

Court:TCA

GERALD LARGEN, Kingston, for Appellant.

CHARLES W. BURSEN, Attorney General and Reporter, and DIANNE
STAMEY DYCUS, Senior Counsel, Attorney Generals Office,
Nashville, for Appellee, Attorney General Charles Burson.
                        
First Paragraph:

In this wrongful death action, the Trial court ruled against
appellant, and appellant has appealed and well states the
issue:

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

ROBERT JOHN WILLIAMS,v. MARY ELIZABETH (WILLIAMS) EVANS,

Court:TCA

Judy Winegar Goans, Clinton, Attorney for the Appellant

Mark Silvey, Knoxville, Attorney for the Appellee
                        
First Paragraph:

The appellant sought an award of attorney fees of $31,205.48
and filed an affidavit in explanation of the hours her
attorney had expended in this case, which involved the
custody and support of one child.

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

BENNIE YEARBY, v. HENRY SHANNON, d/b/a UNITED TAXI STAND, 

Court:TCA

ALARIC A. HENRY AND MICHAEL A. KENT, 
Luther, Anderson & Cleary, P.C., Chattanooga for Appellant.

HUGH P. GARNER, Garner, Lewis & Prickett, 
Chattanooga, for Appellee.
                        
First Paragraph:

This case originated in the General Sessions Court for
Hamilton County.  In plaintiff's civil warrant the plaintiff
sought damages for personal injury from the defendants,
Henry Shannon and David W. King.  King was never served with
process and he is not a party to this action.  While the
case was pending in the general sessions court, the parties,
through their attorneys, reached a settlement whereby the
defendant or his liability insurance company was to pay the
plaintiff the sum of $4,500.00. 

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

FRANK BELL, v. STATE OF TENNESSEE,  

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Donald M. Lasley            Charles W. Burson
Attorney at Law             Attorney General & Reporter
Soddy-Daisy, TN             

                            Michael J. Fahey, II
                            Assistant Attorney General

                            Gary D. Gerbitz
                            District Attorney General

                            Thomas J. Evans
                            Asst District Attorney General

                            Rebecca J. Stern
                            Asst District Attorney General
                        
First Paragraph:

The appellant, Frank Bell, appeals as of right from a
judgment of the trial court dismissing his suit for
post-conviction relief after an evidentiary hearing.  The
trial court found that the appellant received the effective
assistance of counsel as guaranteed by the Sixth Amendment
to the United States Constitution and Article I,  9 of the
Tennessee Constitution.  In this Court, the appellant
contends that he was denied his constitutional right to the
effective assistance of counsel because trial counsel (a)
failed to appeal the denial of his motion for psychiatric
evaluation, (b) exercised undue influence in getting the
appellant to plead guilty after the trial had commenced, (c)
failed to keep him informed, (d) failed to investigate and
present all available witnesses, and (e) failed to raise the
issue of double jeopardy as to the offenses of burglary of
an automobile and attempt to commit theft over $1,000. 

URL:http://www.tba.org/tba_files/TCCA/bell2.opn.WP6
Opinion-Flash

STATE OF TENNESSEE, v. RICHARD N. BOUGHNER, 

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:


GUY R. DOTSON, JR.          CHARLES W. BURSON
102 South Maple St.         Attorney General & Reporter
Murfreesboro, TN  
                            ELIZABETH T. RYAN           
                            Assistant Attorney General
                
                            GUY R. DOTSON
                            District Attorney General

                            JOHN PRICE
                            Asst. District Attorney General

First Paragraph:

On July 30, 1994, the defendant was stopped for driving
under the influence of an intoxicant (DUI).  His results
from a breath test on the Intoximeter 3000 indicated a blood
alcohol level of .17 of one percent.  He was indicted by the
Rutherford County Grand Jury for DUI during its October 1994
session.  The indictment returned against the defendant
recites June 30, 1994, as the date of the offense.

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

MICKEY ALLEN BROWN,v. STATE OF TENNESSEE,

Court:TCCA

For the Appellant:              For the Appellee:

Mickey Allen Brown, Pro Se      Charles W. Burson
TDOC # 130138                   Attorney General of TN
Turney Center, Unit 2B/49       and
Route 1                         Clinton J. Morgan
Only, TN 37140-9709             Asst Attorney General of TN                 
                                
                                Victor S. Johnson, III
                                District Attorney General
                                and
                                Cheryl Blackburn
                                Assistant District AG       

First Paragraph:

The petitioner, Mickey Allen Brown, appeals as of right from
the Davidson County Criminal Court's summary dismissal of
his pro se petition for post-conviction relief.  On July 2,
1985, the petitioner pled guilty to assault with intent to
commit first degree murder and received a twenty-year
sentence.  The sentence was to run concurrently with a
thirty-year sentence he was serving in Florida.  He
completed his Florida confinement on December 3, 1991, and
was transferred to Tennessee to serve the remainder of the
Tennessee sentence.  

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

JERRY BUTLER, v. STATE OF TENNESSEE,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

GEORGE MORTON GOOGE         CHARLES W. BURSON
District Public Defender    Attorney General and Reporter

PAMELA J. DREWERY           WILLIAM DAVID BRIDGERS
Assistant Public Defender   Assistant Attorney General

                            JERRY WOODALL
                            District Attorney General

                            DON ALLEN
                            Asst District Attorney General

First Paragraph:

This is an appeal pursuant to Rule 3 of the Tennessee Rules
of Appellate Procedure.  After an evidentiary hearing, the
trial court denied the Petitioner's request for
post-conviction relief from his guilty plea to aggravated
sexual battery.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE, v. THOMAS EDWARD CAPPS, 

Court:TCCA

For the Appellant:          For the Appellee:   
        
John H. Henderson           Charles W. Burson
Asst District PD            Attorney General of Tennessee
407 C Main Street           and
P.O. Box 68                 Sarah M. Branch
Franklin, TN 37065-0068     
                            Joseph D. Baugh, Jr.
                            District Attorney General
                            and
                            Donald Schwendimann
                            Asst District Attorney General

First Paragraph:

The defendant, Thomas Edward Capps, appeals from his
convictions in the Circuit Court of Hickman County for three
counts of simple possession of cocaine.  He received
sentences of eleven months and twenty-nine days for each
offense with two sentences to be served concurrently with
one another but consecutively to the third.  All three
sentences were ordered to be served consecutively to a prior
unserved sentence in Dickson County.  

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

JOHNNY L. COLWELL,  v. STATE OF TENNESSEE,

Court:TCCA

For the Appellant:          For the Appellee:

John E. Herbison            Charles W. Burson
Attorney                    Attorney General and Reporter
Nashville, TN  37204        
    
                            Ellen H. Pollack 
                            Assistant Attorney General
                            Criminal Justice Division

                            Roger Moore
                            Asst. District Attorney General

First Paragraph:

The petitioner, Johnny L. Colwell, appeals the trial court's
dismissal of his petition for post-conviction relief.  The
single issue on appeal is whether the petition is barred by
the statute of limitations.

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

DAVID J. DABNEY, v. STATE OF TENNESSEE, 

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:


KIM G. SIMS                 CHARLES W. BURSON
1279 Lamar Ave.             Attorney General & Reporter
Memphis, TN   38104
                            DARIAN B. TAYLOR
                            Attorney General
                
                            JOHN W. PIEROTTI
                            District Attorney General

                            JAMES C. BEASLEY, JR.
                            Asst. District Attorney General

First Paragraph:

The petitioner Dabney pled guilty to especially aggravated
robbery and was sentenced to twenty years as a Range I
standard offender.  No direct appeal was taken.  The
petitioner filed a petition for post-conviction relief,
alleging that his guilty plea was involuntary because
unintelligently made and that he received ineffective
assistance of counsel.  After a hearing at which the
petitioner and his trial counsel testified, the lower court
denied relief.  We affirm.

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

STATE OF TENNESSEE, v. TREANOUS L. DAVIS,

Court:TCCA

For the Appellant:          For the Appellee:

Terry J. Canady             Charles W. Burson
211 Printer's Alley Bldg.   Attorney General of TN
Suite 400                   and
Nashville, TN 37201         Ellen H. Pollack
                            Asst Attorney General of TN

                            Victor S. Johnson, III
                            District Attorney General                   
                            and
                            Katrin Miller
                            Asst District Attorney General
                    
First Paragraph:

The defendant, Treanous L. Davis, was convicted in a jury
trial in the Davidson County Criminal Court of attempt to
commit second degree murder, a Class B felony, and attempt
to commit aggravated robbery, a Class C felony.  As a Range
II, multiple offender, he was sentenced to seventeen years
for the attempted murder and eight years for the attempted
robbery with the sentences to be served consecutively. 

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

STATE OF TENNESSEE  v. JOHN EISOM,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Julie K. Pillow                 Charles W. Burson
Assistant Public Defender       Attorney General & Reporter
P.O. Box 700
Somerville, Tennessee 38068     Michelle L. Lehmann
                                Counsel for the State
                            
                                William Randolph
                                Assistant Attorney General

First Paragraph:

This is an appeal as of right by the Appellant John Eisom,
from a judgment of the Lauderdale County Criminal Court
approving a jury verdict finding him guilty of second degree
murder and two counts of aggravated assault.

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

STATE OF TENNESSEE, v. EDWARD LEROY HARRIS,

Court:TCCA

For the Appellant:          For the Appellee:

Paul J. Morrow, Jr.         Charles W. Burson
        and                 Attorney General and Reporter
Brock Mehler    
704 18th Ave. South         Christian S. Chevalier
Nashville, TN  37203        Assistant Attorney General                      
                        
                            Al C. Schmutzer, Jr.
                            District Attorney General

                            Richard Vance
                            Asst. District Attorney General
                        
First Paragraph:

The appellant, Edward Leroy Harris, alias "Tattoo Eddie,"
seeks post conviction relief from his convictions of one
count of armed robbery and two counts of premeditated first
degree murder, entered by the Circuit Court of Sevier County
in May, 1988, and the consequent imposition of one sentence
of life imprisonment and two sentences of death by
electrocution.  The convictions and sentences were affirmed
on appeal by the Tennessee Supreme Court.  State v. Harris,
839 S.W.2d 54 (Tenn. 1992), cert. denied, -- U.S. --, 113 S.
Ct. 1368 (1993).

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

WILLIAM RAY HUTCHINS, v. STATE OF TENNESSEE, 

Court:TCCA

For the Appellant:              For the Appellee:

Raymond C. Conkin, Jr.          Charles W. Burson
152 Broad Street, Suite 207     Attorney General of TN
Kingsport, TN 37660             and
                                Michelle L. Lehmann              
                                Asst Attorney General of TN
                    
                                H. Greeley Wells, Jr.  
                                District Attorney General   
                                and
                                Barry Staubus               
                                Assistant District Attorney General            
                        
First Paragraph:

The petitioner, William Ray Hutchins, appeals as of right
from the dismissal of his petition for post-conviction
relief by the Sullivan County Criminal Court.  The
petitioner was convicted of attempted second degree murder,
a Class B felony, pursuant to a guilty plea and received a
sentence of ten years as a Range I, standard offender to be
served in the custody of the Department of Correction.  The
conviction was affirmed on direct appeal.  State v. William
Ray Hutchins, No.  03C01 9302-CR-00044, Sullivan Co. (Tenn.
Crim. App. Dec. 7, 1993), app. denied (Tenn. Apr. 4, 1994).

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

STATE OF TENNESSEE, v. M. STEVEN LILLY,

Court:TCCA

For the Appellant:          For the Appellee:

Gale K. Flanary             Charles W. Burson
Asst. Public Defender       Attorney General and Reporter
Post Office Box 839 
Blountville, TN  37617      Michelle L. Lehmann
                            Assistant Attorney General                          
                            Criminal Justice Division
                        
                            H. Greeley Wells, Jr. 
                            District Attorney General

                            David Overbay
                            Asst. District Attorney General
                       
First Paragraph:

The appellant, M. Steven Lilly, pled guilty in the Criminal
Court of Sullivan County to two counts of sale of marijuana,
class E felonies.  He now appeals from the consequent
imposition of two concurrent eighteen month sentences.  The
sole issue presented for our review is the trial court's
denial of alternative sentencing.  Specifically, the
appellant argues that the trial court should have ordered a
sentence of probation, intensive probation, or community
corrections.

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

FRED RANEY, WARDEN, STATE OF TENNESSEE,
v.
BILLY MCGHEE,   

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Billy McGhee, Pro Se            Charles W. Burson
T.D.O.C. NO. 109355             Attorney General & Reporter
Cold Creek Correctional 
Facility            
Henning, TN                     Eugene J. Honea
                                Assistant Attorney General

First Paragraph:

This is an appeal as of right by the Pro Se Appellant, Billy
McGhee, from the judgment of the Lauderdale County Circuit
Court, denying his Petition for Writ of Habeas Corpus.  The
Appellant contends in his single issue that he stated a
cognizable constitutional claim pursuant to the habeas
corpus statute and that the court erred in transforming the
of habeas corpus into a petition for post-conviction
relief and dismissing it as time barred.

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

STATE OF TENNESSEE  v. RICARDO McCLELLAN,   

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

C.Michael Robbins           Charles W. Burson
Asst District PD            Attorney General & Reporter
                            
                            Hunt S. Brown
                            Assistant Attorney General
                            
                            Perry Hayes
                            Assistant Attorney General
                            
First Paragraph:

This is an appeal as of right by the appellant, Ricardo
McClellan, from a judgment of conviction entered by the
Circuit Court of Hardeman County.  The appellant was charged
with and convicted by a jury of delivery of a Schedule II
controlled substance, to wit; cocaine, in an amount more
than 0.5 grams pursuant to Tenn. Code Ann. 39-17-417. The
trial judge sentenced the defendant to fourteen (14) years
in the State Penitentiary as a Range II  multiple offender,
and affirmed the jury's twenty twenty thousand dollar
($20,000.) fine.  The appellant presents the following
arguments in support of his appeal from his conviction and
sentence.

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

STATE OF TENNESSEE, v. DOUGLAS A. MERRICK,

Court:TCCA

For the Appellant:          For the Appellee:

Mack Garner                 Charles W. Burson
District Public Defender    Attorney General of Tennessee
318 Court Street            and
Maryville, Tennessee        Michelle L. Lehmann
                            Asst Attorney General of TN
                             
                            Michael L. Flynn
                            District Attorney General
                                and
                            Asst District Attorney General
                            Blount County Courthouse
    
First Paragraph:

The defendant, Douglas A. Merrick, was convicted upon pleas
of guilty in the Blount County Circuit Court of two counts
of forgery and two counts of uttering a forged instrument,
Class E felonies.  He was sentenced as a Range I, standard
offender to concurrent one-year sentences for each count and
ordered to pay a total of $878.72 in restitution.  His
sentences are to be suspended and supervised probation
imposed after he serves sixty days in the county jail. 

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

STATE OF TENNESSEE, v. JOSEPH SHANE POWELL,

Court:TCCA

For Appellant:              For Appellee:
George Morton Googe         Charles W. Burson
District Public Defender    Attorney General & Reporter

Pamela J. Drewery           George Linebaugh
Asst. Public Defender       Counsel for the State

                            Don Allen
                            Asst. District Attorney General                                       

First Paragraph:

The defendant, Joseph Shane Powell, entered guilty pleas to
several theft and burglary charges arising out of both
Madison and Chester Counties.  The trial court approved a
plea agreement which provided for an effective sentence of
twelve years.  The defendant was ordered to serve six months
in jail and the balance of the sentence was to be served on
probation.  During the first year, the defendant was placed
on intensive probation.  At the end of this first year, the
defendant was moved to regular probation.  Two years later,
the trial court revoked the probation and reinstated the
twelve-year sentence.

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

STATE OF TENNESSEE v. THOMAS REED

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Jesse H. Ford, III              Charles W. Burson
Attorney at Law                 Attorney General & Reporter
111 West Main, Lower Level
Jackson, Tennessee 38302        Clinton J. Morgan
                                Counsel for the State

                                James W. Thompson
                                Assistant Attorney General

First Paragraph:

This is an appeal as of right by the Defendant, Thomas Reed,
of his conviction in the Criminal Court for Madison County
following a jury trial.  The Defendant was convicted of
aggravated burglary and was sentenced to a period of
confinement of nine (9) years as a Range II Offender and
fined one thousand dollars ($1,000.00).  He presents two
issues for review:

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

STATE OF TENNESSEE, v. JOHNNY ROBINSON,

Court:TCCA

For Appellant:                  For Appellee:
George Morton Googe             Charles W. Burson
District Public Defender        Attorney General
and                             450 James Robertson Parkway
Pamela J. Drewery               Nashville,  TN  37243-0493
Assistant Public Defender               
227 W. Baltimore                Renee F. Videlefsky
Jackson, TN  38301              Assistant Attorney General
                            
                                Don Allen and Nick Nicola
                                Asst. Dist. AG
        
First Paragraph:

The defendant, Johnny N. Robinson, entered pleas of guilt to
driving under the influence, third offense; driving on a
revoked license; driving on the wrong side of the road; and
vehicular assault.  The trial court imposed the following
sentences and fines:  an 11 month and 29 day sentence at 75%
and a $1,000 fine for the DUI; a six month sentence at 75%
and a $250 fine for the driving on a revoked license; a 30
day sentence at 75% and a $50 fine for the driving on the
wrong side of the road; and a four year, Range I sentence
and a $500 fine for the vehicular assault.  The sentences
were ordered to be served concurrently.

URL:http://www.tba.org/tba_files/TCCA/ROBINSN2.OPN.WP6
Opinion-Flash

LARRY D. RUSSELL, v. STATE OF TENNESSEE,    

Court:TCCA

For Appellant:              For Appellee:
Larry D. Russell            Charles W. Burson
Pro Se                      Attorney General & Reporter
Cold Creek Correctional     450 James Robertson Parkway
Facility                    Nashville, TN  37243-0493
P.O. Box 1000
Henning, TN  38041-1000     Michelle L. Lehmann 
                            Assistant Attorney General

                            David C. Henry
                            Asst. District Attorney General
                      
First Paragraph:

The petitioner, Larry D. Russell, appeals from the trial
court's dismissal of his pro se petition for post conviction
relief.  The single issue presented for our review is
whether the trial court properly dismissed the petition as
barred by the three-year statute of limitations without the
appointment of counsel or an evidentiary hearing.  Because
we have been able to conclusively determine that the
petitioner is not entitled to relief, the judgment is
affirmed.

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

STATE OF TENNESSEE, v. JOE W. SMITH,    

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

William D. Massey               Charles W. Burson
100 North Main Street           Attorney General and Reporter
Suite 3010                      
(Appeal Only)
                                Darian B. Taylor
Cary Woods                      Assistant Atty. Gen. & Reporter
147 Jefferson Avenue            
Suite 1011                      
Memphis, Tennessee 38103
(Trial Only)                    John W. Pierotti
                                District Attorney General

                                James C. Beasley
                                Assistant District Attorney General
                                
                                Amy P. Weirich
                                Assistant District Attorney General
                        
First Paragraph:

The appellant, Joe W. Smith, was indicted for murder in the
first degree after he confessed to killing David Jones
outside a pool hall in Shelby County.  The appellant pled
not guilty to the charge, was tried by a Shelby County jury
and found guilty of second degree murder.  His appeal
pursuant to Rule 3(b) of the Tennessee Rules of Appellate
Procedure challenges only the sentence imposed by the trial
court.

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

STATE OF TENNESSEE  v. JEREMY WINSETT

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Charles D. Wright           Charles W. Burson
Attorney at Law             Attorney General & Reporter
Memphis
                            Ellen H. Pollack
                            Asst District Attorney General
    
                            James H. Challen, III
                            Asst District Attorney General
    
                            John W. Pierotti
                            District Attorney General
                        
First Paragraph:

This is an appeal by permission of the Court of Criminal
Appeals from Division VI of the Criminal Court for the
Thirtieth Judicial District of Tennessee at Memphis.  The
appellant, Jeremy A. Winsett, presents an appeal of the
judgment of that trial court affirming the District Attorney
General's decision to deny pre-trial diversion in this case.
 The appellant is charged with two counts of vehicular
homicide, having been arrested in this cause on or about May
26, 1992.
    
URL:http://www.tba.org/tba_files/TCCA/WINSETT.OPN.WP6
Opinion-Flash

STATE OF TENNESSEE  v. SHAWN PHILLIP YEAGER,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Shana C. McCoy                  Charles W. Burson
Asst. District PD               Attorney General & Reporter
B.P.R. #13597                   
P.O. Box 700
Somerville, TN 38068-0700       George P. Linebaugh, Jr.
                                Counsel for the State
                            
                                Christopher S.  Marshburn
                                Assist. District AG
                        
First Paragraph:

This is an appeal as of right by the Defendant, Shawn
Phillip Yeager, of a sentence of the Circuit Court for
Fayette County, following the Defendant's plea of guilty to
the indictment charging, in count one, aggravated rape and,
in count two, aggravated kidnapping.  A sentencing hearing
was had and the Defendant was sentenced to sixteen (16)
years as to count one and nine (9) years as to count two, as
a Range I, Standard Offender, both sentences to run
concurrently.  The Defendant presents one issue for review: 
whether the trial court erred in sentencing him to an
enhanced punishment within the sentencing range based on the
proof before the trial court.  

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

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