TBALink Opinion-Flash

May 30, 1996 -- Volume #2 -- Number #52

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.

This Issue IN THIS ORDER:
09-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
04-New Opinons From TCA
04-New Opinons From TCCA

There are three ways to get the full opinion from the Web: (TBALink members only)

  • Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a plain text version of the opinion.

  • *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WP 6.0 document. version of the opinion.

  • Click the URL Link at end of each Opinion paragraph below. This option will allow you to download the original WP 6.0 document.

Jim Moore
TBALink Co-Chief Editor

STATE OF TN, v. WAYNE BURDIN,

Court:TSC

For Plaintiff-Appellant:        For Defendant-Appellee:

Charles W. Burson               Brett B. Stein
Attorney General & Reporter     Memphis

Kathy Morante
Deputy Attorney General
                       
First Paragraph:

This case presents an appeal from a condition of probation
imposed by the trial court upon a guilty plea to a charge of
sexual battery.  The judgment of the Court of Criminal
Appeals removing the condition is affirmed, and the case is
remanded to the trial court.

Judge: REID, J.

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

ANNA ELIZABETH WULFERT DAVIS,v. SAMMY LYNN DAVIS,           

Court:TSC

For Plaintiff-Appellant:    For Defendant-Appellee:

Lanier Fogg                 Everett B. Gibson
Memphis                     Memphis
                       
First Paragraph:

This case presents for review the decision of the Court of
Appeals reversing the trial court's order that interest on
alimony in solido began to accrue on a certain date prior to
the date of final judgment.  This Court finds that the
applicable statute, though ambiguous, authorizes the trial
court's award of interest.

Judge: REID, J.

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

STATE OF TN, v. TIM0THY D. HARRIS and CRAIG THOMPSON,    

Court:TSC

For Appellant:                  For Appellee Harris:

Charles W. Burson               Harry U. Scruggs
Attorney General & Reporter     Memphis, TN

Amy L. Tarkington               David C. Stebbins
Christina S. Shevalier          (formerly w/ Capital Case
Assistant Attorneys General     Resource Center)
                                Columbus, Ohio

Glenn I. Wright                 For Appellee Thompson:
Gerald Harris
Paul F. Goodman                 John G. Oliva
Assistant District Attorneys    Nashville, TN
                                David C. Stebbins
                                (formerly w/ Capital Case                                  
                                Resource Center)
                                Columbus, Ohio

                                Carolyn Watkins
                                Edward G. Thompson
                                Assistant Public Defenders
                                Memphis, TN
                         
First Paragraph:

The single issue in this consolidated appeal is purely a
question of law and requires a determination of whether a
remand for resentencing is appropriate when an appellate
court in a capital case concludes the sole aggravating
circumstance found by the original sentencing jury is
legally invalid and sets aside the sentence of death. 
Because there is no legal principle which precludes the
State from seeking the death penalty upon resentencing, a
remand for that purpose is appropriate.  

Judge: ANDERSON, C.J.

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

STATE OF TN, 
v. 
FRANKLIN SANDERS, d/b/a MONEYCHANGER, S.P.,

Court:TSC

For Plaintiff-Appellee:         For Defendant-Appellant:

Charles W. Burson               Arch B. Boyd III
Attorney General and Reporter   Memphis
Nashville
                                Lowell H. Becraft, Jr.
Michael E. Moore                Huntsville, AL
Solicitor General
                                Edwin Vieira, Jr.
                                Manassas, VA    
Michael W. Catalano             
Associate Solicitor General

Joel W. Perry
Assistant Attorney General

John W. Pierotti
District Attorney General

Phyllis B. Gardner
Lee Wilson, Jr.
Assistant District Attorneys General
                          
First Paragraph:

The primary issue presented in this case is whether the
exchange of gold and silver coins and bullion for dollars
constitutes the sale of tangible personal property which is
subject to sales tax imposed by Tenn. Code Ann.  67-6-101
et seq.  A related issue is whether the criminal prosecution
of the defendant pursuant to Tenn. Code Ann.  67-1-1440(d)
violated the defendant's constitutional right to due
process.  Both issues are resolved against the defendant. 
The record supports the judgment of conviction affirmed by
the Court of Criminal Appeals.

Judge: REID, J.

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

JAMES STAGGS, Successor and Representative of Mary Staggs,
Deceased,
v. 
NATIONAL HEALTH CORPORATION,                

Court:TSC

For Appellant:                  For Appellee:

Ben Boston                      Paul B. Plant
Christopher V. Sockwell         J. Jay Cheatwood
Boston, Bates & Holt            Harwell, Plant & Cheatwood
                          
First Paragraph:

We review the conclusions of law of the Special Workers'
Compensation Appeals Panel to determine whether an employee
is entitled to collect post judgment interest on an award of
discretionary costs or on medical expenses an employer is
ordered to repay to a third-party health insurance carrier.

Judge: ANDERSON, C.J.

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

JESSE S. TIDWELL, v. STATE OF TN,

Court:TSC

For Appellant:          For Appellee:

Jesse Spence Tidwell    Charles W. Burson
Pro se                  Attorney General and Reporter

                        Michael E. Moore
                        Solicitor General

                        Gordon W. Smith
                        Associate Solicitor General
 
                        Daniel W. Cook
                        Assistant District Attorney
                         
First Paragraph:

The appellant, Jesse S. Tidwell, appeals the trial courts
denial of his petition for post-conviction relief.  At issue
is whether his trial counsel's failure to require the
prosecutor to elect the particular offenses upon which
convictions would be sought deprived him of his
constitutional right to the effective assistance of counsel.
 We have carefully examined the trial and post-conviction
transcripts and have thoroughly considered the contentions
of both parties.  For the reasons discussed below, we find
that counsel's performance failed to satisfy the criteria
established in Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975)
and in Strickland v. Washington, 466 U.S. 558 (1984).  

Judge: BIRCH, J.

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

STATE OF TN  v. TERRY E. WOOD
and DISSENTING OPINION(s)

Court:TSC

FOR THE APPELLANT:          FOR THE APPELLEE:

John H. Henderson, Jr.      Charles W. Burson
Public Defender             Attorney General and Reporter

Maurine C. Hatchett         Christina S. Shevalier
Assistant Public Defender   Assistant Attorney General

                            Joseph D. Baugh
                            District Attorney General

                            Mark Puryear
                            Assistant District Attorney                  
                            General
                         
First Paragraph:

We granted the application of Terry E. Wood, the defendant,
for permission to appeal in order to resolve an issue of
first impression in TN:  whether the return of a
sealed presentment engages an accused person's speedy trial
rights under the Sixth Amendment to the United States
Constitution and Article I,  9, of the TN
Constitution.  After a thorough examination of the record
and careful consideration of the issue, we conclude, for
reasons appearing below, that the return of a presentment,
whether sealed or unsealed, whether the accompanying capias
is executed or unexecuted, is a formal accusation that
engages constitutional speedy trial provisions.  

Judge: Birch, J.

URL:http://www.tba.org/tba_files/TSC/WOODTER.OPN.WP6
URL:http://www.tba.org/tba_files/TSC/WOODTER.DIS.WP6
URL:http://www.tba.org/tba_files/TSC/WOODTER2.DIS.WP6
Opinion-Flash

MARTIN H. AUSSENBERG 
v. 
BRUCE S. KRAMER, DAVID J. COCKE, AND BOROD AND KRAMER,      
                        
Court:TCA

For the Plaintiff/Appellants:   For the Defendant/Appellees:

Stanley J. Kline                J. Alan Hanover
Memphis, TN                     Memphis, TN
                       
First Paragraph:

In this case, Plaintiff, Martin H. Aussenberg
(Aussenberg), appeals the trial courts  valuation of his
former partnerships work-in-progress and accounts
receivable as well as its finding regarding Aussenbergs
interest in the partnerships accounts receivable and
work-in progress.   We affirm the decision of the trial
court.

Judge: HOLLY KIRBY LILLARD, J.

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

WILLIAM ROY HARWELL AND ALICE PATRICIA HARWELL,
v.
RALEIGH RIDGE OWNERS ASSOCIATION, INC., PEARSON BROTHERS
CRANE and ABC MANUFACTURER,

Court:TCA

Forthe Plaintiffs/Appellant:    For the Defendants/Appellees
Ira M. Thomas                   J. Kimbrough Johnson
Memphis, TN                     Memphis, TN
                         
First Paragraph:

This is a negligence case brought by William Harwell
(Harwell) and his wife against Raleigh Ridge Owners
Association (RROA) and two other defendants not involved in
this appeal.  Harwell appeals the trial courts grant of
summary judgment to RROA.  We affirm the trial court. On
February 1, 1992, Harwell sustained personal injuries while
replacing a light on the top of a creosote telephone pole
located in Raleigh Ridge Park.  The pole broke and fell,
resulting in Harwells injuries.   Harwell filed the
Complaint in the instant case against  RROA.

Judge: HOLLY KIRBY LILLARD, JUDGE

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

STATE OF TN, DEPT. OF HUMAN SERVICES,        
v.
GEORGE LEWIS KERSEY and TERESA MARIE KERSEY,        

Court:TCA

LARRY D. WRIGHT
Cleveland, TN
Attorney for Appellants

CHARLES W. BURSON
ATTORNEY GENERAL & REPORTER

MICHELLE K. HOHNKE
ASSISTANT ATTORNEY GENERAL
Attorney for Appellee
                          
First Paragraph:

George and Teresa Kersey appeal the decision of the Bradley
County Juvenile Court which terminated their parental rights
to Edward Kersey, born January 3, 1988; Crystal Kersey, born
January 17, 1990; and twins April and Erica Kersey, born May
4, 1992.   The lower court awarded custody to the TN
Department of Human Services ("DHS"), Appellee.

Judge: ALAN E. HIGHERS, J.

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

WANDA LEE LEHMAN,v. AARON RUSSELL LEHMAN,        

Court:TCA

KELLY STARK, McLean & Stark, Memphis, Attorney for
Appellant.

TED I. JONES, Memphis, Attorney for Appellee.
                      
First Paragraph:

This is a domestic relations case.  Wanda Lee Lehman
(plaintiff) was granted an absolute divorce from Aaron
Russell Lehman (defendant) in the Chancery Court of Shelby
County on September 17, 1992.  In that decree the chancellor
awarded plaintiff alimony in futuro in the amount of $500.00
per month.  Because of plaintiffs poor health and the low
monthly mortgage payment, plaintiff was permitted to live in
the martial home until it was sold.  In the event that the
home was sold, either by agreement of the parties or by
court order, the decree provided that plaintiff would
receive sixty-five (65%) percent of the net equity in the
home with defendant receiving the remaining thirty-five
(35%) percent.  

Judge: TOMLIN, Sr. J.

URL:http://www.tba.org/tba_files/TCA/LEHMAN.MEM.WP6
Opinion-Flash

STATE OF TN, v. MACK EDWARD BROWN,   

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:


RANDALL E. REAGAN           CHARLES W. BURSON
602 Gay St., Suite 905      Attorney General & Reporter
Knoxville, TN  37902
                            MERRILYN FIERMAN
                            Asst. Attorney General          
                
                            RANDALL E. NICHOLS
                            District Attorney General

                            ROBERT JOLLEY
                            Asst. District Attorney General
                        
First Paragraph:

The defendant, Mack Edward Brown, appeals as of right from
the sentence of twenty-five (25) years set by the Knox
County Criminal Court.  Initially, on May 22, 1989, a jury
sentenced the defendant to death after having found him
guilty of first-degree murder.  In the same proceeding, the
jury also convicted the defendant of child neglect, a
misdemeanor for which he received a sentence of eleven
months and twenty-nine days.  After his trial, the defendant
appealed only his murder conviction which the TN
Supreme Court reversed, finding that the defendant was
guilty, instead, of second-degree murder.  The Court then
remanded the defendant's cause to the trial court which
entered the twenty-five year sentence from which he now
appeals.

Judge: PER CURIAM (SCOTT, PEAY & COLTON, S.J.)

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

STATE OF TN, v. ALLEN LEE CAMPBELL,

Court:TCCA

For Appellant:          For Appellee:
M. Jeffrey Whitt        Charles W. Burson
Attorney                Attorney General & Reporter
706 Walnut Street
Suite 902               Hunt S. Brown           
Knoxville, TN  37902    Assistant Attorney General

                        Randall E. Nichols
                        District Attorney General

                        S. Jo Helm
                        Asst. District Attorney General
                       
First Paragraph:

The defendant, Allen Lee Campbell, entered a best interest
plea of guilt to especially aggravated burglary without any
recommendation by the state as to the manner and length of
his sentence.  The trial court imposed a Range I sentence of
eleven years.  The single issue raised on appeal is whether
the sentence imposed was excessive.

Judge: GARY R. WADE, JUDGE

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

STATE OF TN, v. TOMMY NORWOOD,

Court:TCCA

For the Appellant:      For the Appellee

Larry Roddy             Charles W. Burson
723 McCallie Ave.       Attorney General & Reporter
Chattanooga, TN 37403   
                        Elizabeth T. Ryan
                        Asst. Attorney General      

                        William H. Cox, III
                        District Attorney General

                        H.C. Bright
                        Asst. District Attorney General
                     
First Paragraph:

The appellant, Tommy Norwood, was convicted of robbery, a
class C felony.  As a Range III, persistent offender, he was
sentenced to eleven years in the Department of Correction. 
On appeal, he challenges the sufficiency of the evidence and
the trial courts failure to suppress identification
testimony.  We find no error and affirm the judgment of the
trial court.

Judge: William M. Barker, Judge

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

STATE OF TN, v. BRIAN SWICK  

Court:TCCA
                        
FOR THE APPELLANT:          FOR THE APPELLEE:

Greg W. Eichelman           Charles W. Burson
District Public Defender    Attorney General and Reporter

                            Timothy F. Behan
                            Assistant Atty. Gen. & Reporter

                            C. Berkeley Bell, Jr.                                   
                            District Attorney General

                            Eric D. Christiansen
                            Assistant District AG

First Paragraph:

The appellant, Brian Swick, was convicted of felonious
reckless endangerment, a class E felony, by a jury in the
Circuit Court of Greene County.  He was sentenced to serve
fifteen (15) months in the county jail.  On appeal, he
raises the following issues for our consideration:
(1) Whether the evidence adduced at trial was sufficient
to sustain the verdict of the jury.
(2) Whether the trial court erred in refusing to grant a
second continuance to the appellant.
(3) Whether the trial court erred when it refused to
allow the appellant to call the probation officer of a
missing witness for the purpose of explaining to the jury
that the witness was subject to an outstanding warrant.
(4) Whether the sentence imposed by the trial court was
excessive.

Judge: William M. Barker, Judge

URL:http://www.tba.org/tba_files/TCCA/SWICK.OPN.WP6

Feel free to forward this Opinion-Flash on to any attorney you know of with an internet address, who is not a TBALink member. To Join TBALink - Http://www.tba.org/join.html/

Would you like to receive the TBALink Opinion-Flash each day via e-mail?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE
3) Leave the body of the message blank

Non TBA members are WELCOME to subscribe...it's free!!

Would you like to STOP receiving the TBALink Opinion-Flash?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: UNSUBSCRIBE
3) Leave the body of the message blank


© Copyright 1998 Tennessee Bar Association