TBALink Opinion-Flash

March 22, 1996 -- Volume #2 -- Number #30 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 : 7
New Opinons From TCCA : 10
New Opinons From AG : Pending

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Jim Moore
TBALink Co-Chief Editor
Opinion-Flash

MARCUS ALLEN, 
v
CHRISTINE BRADLEY, COMMISSIONER, DEPARTMENT OF CORRECTION,

Court:TCA

Charles W. Burson, Attorney General and Reporter, 
Counsel for State

Marcus Allen, Pro Se
                        
First Paragraph:

This appeal involves an inmate's allegations that his
release eligibility date was improperly calculated by the
Tennessee Department of Correction.  Plaintiff-Appellant,
Marcus Allen ("Allen"), petitioned the chancery court for a
declaratory judgment seeking, inter alia, a new calculation
of his parole and release eligibility dates. 

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

MARY POOR AYERS, v. JAMES OLIVER AYERS, 

Court:TCA

Mark A. Rassas
RASSAS & RASSAS
Clarksville, TN
ATTORNEY FOR PLAINTIFF/APPELLEE

William L. Harbison
SHERRARD & ROE, P.L.C.
Nashville, TN
ATTORNEY FOR DEFENDANT/APPELLANT
                       
First Paragraph:

This is a divorce case in which the principal bone of
contention is the division of marital property, but the
unusual procedure in the Trial Court must also be reviewed.

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

STATE OF TENNESSEE, EX REL FIRST AMERICAN NATIONAL BANK and
DOUBLE M PARTNERS,
v.
CITY OF FRANKLIN MUNICIPAL PLANNING COMMISSION,

Court:TCA

Michael L. Dagley
Farris, Warfield & Kanady
Nashville, TN
ATTORNEY FOR PLAINTIFF/APPELLANT

Douglas Berry
Weed, Hubbard, Berry & Doughty
Nashville, TN
ATTORNEY FOR DEFENDANT/APPELLEE
                        
First Paragraph:

This is an appeal taken from the trial court's refusal to
issue a writ of mandamus to the Appellee City of Franklin
Municipal Planning Commission ("FMPC")  to conduct a hearing
and rule on the application of the Appellants-Relators First
American National Bank ("First American") and Double M
Partners ("Double M") for issuance of a site permit to build
a convenience storage facility at an intersection in
Franklin, Tennessee, and dismissing the complaint for
mandamus and for declaration that City of Franklin zoning
ordinance 94-16 was invalid.

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

FIRST TENNESSEE BANK NATIONAL ASSOCIATION,  
v. 
THOROUGHBRED MOTOR CARS, INC.,

Court:TCA

JOHN S. HICKS and KATHERINE A. BROWN, Baker, Donelson,
Bearman & Caldwell, Nashville, Attorneys for
Plaintiff/Appellee

ROBERT E. BOSTON and DAVID E. LEMKE, Waller, Lansden, Dortch
& Davis, Nashville, Attorneys for Defendant/Appellee
                        
First Paragraph:

First Tennessee Bank National Association (plaintiff) filed
suit in the Chancery Court of Davidson County against
Thoroughbred Motor Cars, Inc. (defendant) seeking to recover
damages incurred as a result of defendants alleged breach
of an asset purchase agreement to which it claimed to be a
third party beneficiary.  Defendant filed a motion to
dismiss pursuant to T.R.C.P. 9.01 and 12.02(6), contending
that plaintiffs complaint failed to state a claim upon
which relief could be granted because it was not a party or
an intended beneficiary of the asset purchase agreement and
therefore lacked standing to sue under the agreement.

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

JANET K. FLORENCE, v. DAVID G. FLORENCE,

Court:TCA

H. Thomas Parsons,
PARSONS, NICHOLS & JOHNSON, Manchester, Tennessee
Attorney for Plaintiff/Appellant.

Albert F. Moore, 
NEAL & HARWELL, Nashville, Tennessee
Attorney for Defendant/Appellee.
                        
First Paragraph:

This is a modification of child support case involving a
noncustodial parent whose net monthly income exceeds $6,250.
 Appellant, Janet K. Florence, and Appellee, David G.
Florence, are the parents of four daughters who were ages
17, 15, 13 and 10 at the time of trial.  The final divorce
decree, entered in November 1993, awarded custody of the
children to Ms. Florence and ordered Dr. Florence to pay
child support in the amount of $2,500 per month.

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

HERMITAGE HOUSE SQUARE, L.P., v. WALTER D. ENGLAND,     

Court:TCA

THOMAS F. BLOOM
Nashville, TN
Attorney for Plaintiff/Appellant

THOMAS E. STEWART
Madison, TN
Attorney for Defendant/Appellee
                        
First Paragraph:

The payee on a promissory note sued the maker in General
Sessions Court for payment of the last $1,500 due on it. 
The court entered judgment for the payee.  The maker
appealed, and filed a complaint in Circuit Court which was
consolidated with his appeal.  The complaint alleged that
the obligation on the note could not be enforced, because it
represented payment on an illegal transaction.  The makers
argument was that the note represented a commission on a
sale of real estate, in favor of an individual who was not a
real estate broker or agent, in violation of Tenn. Code Ann.
 62-13-101 et seq.

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

DAVID HOWARD and wife DESSIE HOWARD, 
v. 
STEVE MATHIS d/b/a MATHIS CONSTRUCTION COMPANY,

Court:TCA

LYNN PERRY, Cleveland, for Appellants

D. MITCHELL BRYANT of JENNE, SCOTT & BRYANT, Cleveland, 
for Appellee
                        
First Paragraph:

This case arose out of a dispute between the parties over
the construction of the plaintiffs residence.  The
plaintiffs, husband and wife, sued their contractor for
damages caused by breach of the parties' written contract,
and for removal of a contractors lien filed against their
residence.  They also sought damages arising out of the
filing of the lien.  The defendant filed a counterclaim for
monies due for work performed under the contract and for
damages, including attorney fees. 

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

STATE OF TENNESSEE, v. JAMES E. ALLRED, 

Court:TCCA

For the Appellant:              For the Appellee:

Mack Garner                     Charles W. Burson
District Public Defender        Attorney General / Reporter
318 Court Street    
Maryville, TN  37804            George Linebaugh
                                Assistant Attorney General                          
                        
                                Michael L. Flynn
                                District Attorney General

                                Ed Bailey
                                Asst. District AG

First Paragraph:

The appellant, James E. Allred, pled guilty in the Circuit
Court of Blount County to violating the Motor Vehicle
Habitual Offenders Act, a class E felony.  Tenn. Code Ann.
55-10-616(b) (1993).  The trial court sentenced the
appellant to 2 years incarceration in the Tennessee
Department of Correction as a standard, range I offender.
Tenn. Code Ann.  40-35-112(a)(5)(1990).  The trial court
then granted the appellant an alternative sentence of split
confinement, comprising 180 days incarceration in the county
jail followed by a period of supervised probation.  Tenn.
Code Ann.  40-35-104(c)(4)(1994 Supp.);  Tenn. Code Ann.
40-35-306 (1990).

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

STATE OF TENNESSEE, v. DAVID BROCK,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

RANDY G. ROGERS             CHARLES W. BURSON
P.O. Box 507                Attorney General and Reporter
Athens, TN 37371-0507
                            EUGENE J. HONEA
                            Assistant Attorney General
                        
                            TIMOTHY F. BEHAN
                            Legal Assistant

                            JERRY N. ESTES
                            District Attorney General
                        
First Paragraph:

This is an appeal as of right pursuant to Rule 3 of the
Tennessee Rules of Appellate Procedure.  The Defendant was
convicted on a jury verdict of two counts of assault, two
counts of statutory rape, and four counts of contributing to
the delinquency of a minor.

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

STATE OF TENNESSEE, v. DAVID ARNOLD CROSS,

Court:TCCA

For Appellant:              For Appellee:
Richard W. DeBerry          Charles W. Burson
Asst. Public Defender       Attorney General & Reporter
24th Judicial District
P.O. Box 663                Michael J. Fahey, II        
Camden, TN  38320           Assistant Attorney General
                            
                            John Overton
                            Asst. District Attorney General

First Paragraph:

The defendant, David Arnold Cross, was convicted for rape of
a child.  The trial court imposed the maximum, Range I
sentence of twenty-five (25) years.  In this appeal of
right, the defendant claims the evidence was insufficient to
support his conviction and that the sentence was excessive.

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

STATE OF TENNESSEE, v. DAVID W. CROWDER,

Court:TCCA

For the Appellant:          For the Appellee:

Michael L. Debusk           Charles W. Burson
5344 N. Broadway            Attorney General of TN
Knoxville, TN 37918         and
                            Michael E. Moore
                            Solicitor General
                            and
                            Gina J. Barham              
                            Deputy Attorney General of TN

                            William Paul Phillips  
                            District Attorney General   
                            and
                            Clifton H. Sexton               
                            Assistant District AG
                      
First Paragraph:

The defendant, David W. Crowder, entered guilty pleas in the
Criminal Court of Union County for theft of property valued
at over ten thousand dollars, a Class C felony, and simple
possession of marijuana, a Class A misdemeanor.  He received
a sentence of three years as a Range I, standard offender
for the theft conviction concurrent with a sentence of
eleven months and twenty-nine days for the possession of
marijuana conviction and was placed on unsupervised
probation.

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

BILL R. DIXON, JR., v. STATE OF TENNESSEE,
and CONCURRING OPINION

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

                            DONALD ALLEN
                            Assistant District AG
                        
First Paragraph:

The Petitioner, Bill Dixon, brings this appeal after the
trial court's dismissal of his petition for post-conviction
relief.  The Petitioner sought post-conviction relief
alleging that his guilty plea was not entered voluntarily,
understandingly, and knowingly, and further alleging that he
received ineffective assistance of counsel preceding,
during, and after the entry of his guilty plea.  After
conducting an evidentiary hearing, the trial court denied
relief.

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

STATE OF TENNESSEE, v. DENNIS LIVESAY,

Court:TCCA

FOR THE APPELLEE:               FOR THE APPELLANT:

CRAIG L. GARRETT                CHARLES W. BURSON
Paine, Garrett & Bray           Attorney General/Reporter
Attorneys at Law
226 E. Broadway Avenue          EUGENE J. HONEA
Maryville, TN 37801-2404        Assistant Attorney General

                                MIKE FLYNN
                                District Attorney General

                                PHIL MORTON
                                Asst District AG
                        
First Paragraph:

This is an appeal by the State of Tennessee from an order of
the trial court dismissing a charge of driving while under
the influence of an intoxicant.  The trial court judge
dismissed the charge because he found that law enforcement
authorities violated the Defendant's constitutional right to
due process when they refused to allow the Defendant's
personal physician to come to the jail and procure an
additional sample of blood from the Defendant for the
purpose of having performed an independent laboratory
examination to determine his blood alcohol content. 

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

STATE OF TENNESSEE, v. JAMES MCCULLEY,

Court:TCCA

For Appellant:              For Appellee:
H. Chris Trew               Charles W. Burson
Higgins, Biddle,            Attorney General and Reporter
Chester & Trew              
20 Washington Ave. NW       Darian B. Taylor
P.O. Box 410                Assistant Attorney General
Athens, TN  37303           Criminal Justice Division

                            Jerry N. Estes
                            District Attorney General

                            Sarah Bird
                            Asst. District Attorney General
                       
First Paragraph:

The defendant, James McCulley, was convicted in separate
trials of two counts of aggravated robbery.  The trial court
imposed a Range III sentence of thirty years for each count
and ordered the sentences to run consecutively.

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

DARRELL LYNN WEST,  v. STATE OF TENNESSEE,

Court:TCCA

For the Appellant:          For the Appellee:

Leslie M. Jeffress          Charles W. Burson
1776 Riverview Tower        Attorney General and Reporter
900 S. Gay Street   
Knoxville, TN  37902        Charlette Reed Chambers
                            Assistant Attorney General     
                        
                            Randall E. Nichols
                            District Attorney General

                            Zane Scarlett
                            Asst. District Attorney General

First Paragraph:

The appellant, Darrell Lynn West, appeals the dismissal of
his petition for post-conviction relief without an
evidentiary hearing.  After reviewing the record, we affirm
the judgment of the post-conviction court.

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

STATE OF TENNESSEE, v. TONY LYNN ZEOLIA,    

Court:TCCA

For the Appellant:              For the Appellee:

Deborah Black Huskins           Charles W. Burson
Office of Public Defender       Attorney General/Reporter
142 East Market Street  
Johnson City, TN  37601         Michelle L. Lehmann
                                Assistant Attorney General          
                        
                                David E. Crockett
                                District Attorney General

                                Joe C. Crumley, Jr.
                                Asst. District AG

First Paragraph:

The appellant, Tony Zeolia, pled guilty in the Criminal
Court of Washington County to four counts of arson, a class
C felony.  See Tenn. Code Ann. 39-14-301(b)(1991).  For each
count, the appellant was sentenced as a range I standard
offender to five years incarceration with the Tennessee
Department of Correction.  The trial court ordered that the
sentences be served concurrently.  

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

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