TBALink Opinion-Flash

June 05, 1996 -- Volume #2 -- Number #54

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.

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06-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
05-New Opinons From TCA
02-New Opinons From TCCA

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TBALink Co-Chief Editor


CHARLES M.  CARY, Jr.   v. CATHY ANN CARY,  

Court:TSC

For Appellant:              For Appellee:

Terry Abernathy             Cathy Ann Cary, Pro Se
Selmer, Tennessee           284 North High
                            Bells, Tennessee  38006
                        
First Paragraph:

We granted this appeal to determine whether a  provision in
an antenuptial agreement by which a prospective spouse
waives alimony is void because it violates public policy. 
The trial court held that such a provision in an antenuptial
agreement, which waived alimony, was valid and enforceable
and, therefore, denied the spouses application for alimony.
The Court of Appeals,, however, reversed, holding that the
waiver of alimony provision was void as against public
policy, and remanded to the trial court to consider whether
to award alimony.

Judge: ANDERSON, C.J.

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

STATE OF TENNESSEE, v. BRIAN KEITH KIMBROUGH,

Court:TSC

For Appellant:                  For Appellee:

Charles W. Burson               A. C. Wharton
Attorney General and Reporter   Shelby Cty Public Defender

Jerry L. Smith                  W. Mark Ward
Deputy Attorney General         Assistant Public Defender
Nashville, TN 37243             Memphis, TN 38103
                      
First Paragraph:

We review this cause in order to address an issue of first
impression:  whether attempt to commit felony-murder exists
as an offense in Tennessee.  We conclude that it does not
and affirm the judgment of the Court of Criminal Appeals
reversing the appellee's conviction.

Judge: Birch, J.

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

IN RE:  IRA H. MURPHY,  
v. 
BOARD OF PROFESSIONAL RESPONSIBILITY,               

Court:TSC

For Appellant:                      For Appellee:

Laura L. Chastain                   A. C. Wharton, Jr.
Deputy Chief Disciplinary Counsel   Memphis, Tennessee
Nashville, Tennessee
                       
First Paragraph:

The issue raised by this appeal is whether the petitioner, a
disbarred attorney, has satisfied the requirements for
reinstatement of his license to practice law contained in
Rule 9, 19.3, Rules of the Supreme Court, by clear and
convincing proof.   A Hearing Panel of the Board of
Professional Responsibility concluded that the petitioner
had failed to carry the burden of proof for reinstatement. 
The Chancery Court, however, reviewed the Hearing Panel
decision and held the petitioner was entitled to
"conditional reinstatement" of his license to practice law.

Judge: ANDERSON, C.J.

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

STATE OF TENNESSEE, v. RICHARD ODOM, a/k/a OTIS SMITH,              
and CONCURRING/DISSENTING OPINION

Court:TSC

FOR THE APPELLANT:              FOR THE APPELLEE:

ON APPEAL
A.C. WHARTON                    CHARLES W. BURSON
Shelby County Public Defender   Attorney General and Reporter

W. MARK WARD                    MICHAEL E. MOORE
Assistant Public Defender       Solicitor General
Memphis, TN                     Nashville, TN

BROCK MEHLER                    
Capital Case Resource Center    
Nashville, TN

AT TRIAL    
EDWARD THOMPSON                 JOHN W. PIEROTTI
CAROLYN WATKINS                 District Attorney General
Assistant Public Defenders
Memphis, TN                     DON D. STROTHER
                                PHILLIP GERALD HARRIS
                                Assistant District Attorneys
                                General
                                Memphis, TN
                    
First Paragraph:

In this capital case, the defendant, Richard Odom, was
convicted by a Shelby County jury of first-degree murder
committed in the perpetration of rape.  At the sentencing
hearing, the jury found three aggravating circumstances
beyond a reasonable doubt:  (1) the defendant had been
previously convicted of one or more violent felonies; (2)
the murder was especially heinous, atrocious, or cruel; and
(3) the murder was committed during the defendant's escape
from lawful custody or from a place of lawful confinement. 
Tenn. Code Ann. 39-13-204 (i)(2), (5), and (8).  The jury
found the aggravating circumstances outweighed the
mitigating circumstances beyond a reasonable doubt and
sentenced the defendant to death by electrocution.  We
address five issues:
(1) Whether the standard of review for trial court
rulings on suppression issues is a "preponderance of the
evidence" standard, or an "any material evidence" standard;
(2)  Whether this Court should adopt a rule of law requiring
the electronic recording of custodial interrogations;
(3) Whether the trial court's failure to admit portions
of the testimony of John Hutson, Ph.D., a clinical
psychologist, at the sentencing phase of the trial, was
reversible error;
(4) Whether the change in Tenn. Code Ann.  39-13-204(e)
adding the language "No distinction shall be made between
mitigating circumstances as set forth in subsection (j) and
those otherwise raised by the evidence which are
specifically requested by either the state or the defense to
be instructed to the jury" is evidence of the legislature's
intent that trial courts specifically charge the jury on
nonstatutory mitigating factors; and
(5) Whether the definition of "serious physical abuse" in
the "heinous, atrocious, and cruel" aggravator of Tenn. Code
Ann.  39-13-204 (i)(5) is unconstitutionally vague.

Judge: Birch, J.

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

STATE OF TENNESSEE, v. MARIO LAMONT WILSON, 

Court:TSC

For the Appellee:       For the Appellant:

Hughie Ragan            Charles W. Burson
Jackson, TN             Attorney General & Reporter

                        Michael E. Moore
                        Solicitor General
                        
                        Michael W. Catalano
                        Associate Solicitor General
                        Nashville, TN 
                            
                        James G. Woodall
                        District Attorney General
    
                        Donald H. Allen
                        Asst. District Attorney General
                        Jackson, TN 
                         
First Paragraph:

A jury convicted defendant, Mario Lamont Wilson, of three
counts of aggravated assault and of felony reckless
endangerment and possession of a deadly weapon with the
intent to commit a felony.  The Court of Criminal Appeals
affirmed Wilsons felony reckless endangerment conviction
and sentence, but reversed and dismissed the convictions for
aggravated assault and possession of a deadly weapon.  We
granted permission to appeal to consider whether the Court
of Criminal Appeals erred when it dismissed Wilsons
convictions for aggravated assault.  Although we conclude
that Wilsons convictions for aggravated assault may not
stand, we do not adopt entirely the reasoning of the Court
of Criminal Appeals.  Rather, we affirm the dismissal of the
aggravated assault charges because the evidence is
insufficient to prove that Wilson intentionally and
knowingly caused another to reasonably fear imminent bodily
injury.

Judge: White, J.

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

MICHELLE LYNN DURHAM and        Gibson Circuit No. 7089
husband ROBERT WAYNE DURHAM,     
v. 
LUTHER WEBB and wife, SUE WEBB, individually and d/b/a
WEBBS BRITISH PETROLEUM STATION and W. PAUL ARNOLD,
individually and d/b/a ARNOLD CONSTRUCTION COMPANY,

Court:TCA

TIMOTHY L. WARNOCK and JOHN B. ENKEMA, Bass, Berry & Sims,
Nashville, Attorneys for Plaintiffs/Appellants.

FLOYD S. FLIPPIN, Adams, Ryal & Flippin, Humboldt Attorney
for Defendants/Appellees Luther Webb and wife, Sue Webb,
individually and d/b/a Webbs British Petroleum Station.
                         
First Paragraph:

Michelle Lynn Durham and Robert Wayne Durham (plaintiffs
or by name)  brought this suit in the Circuit Court of
Gibson, County against Luther Webb and wife Sue Webb,
individually and d/b/a Webbs British Petroleum Station
(defendants), seeking damages for defendants alleged
negligence that caused plaintiff Michelle Durham to fall in
defendants parking lot, causing injuries.  The trial court
granted defendants motion for summary judgment, from which
this appeal is taken.  The sole issue presented is whether
the trial court erred in granting defendants motion for
summary judgment.  We find no error and affirm.

Judge: TOMLIN, Sr. J.

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

ELLERS, OAKLEY, CHESTER and RIKE, INC.,             
v.
DPIC COMPANIES, SECURITY INSURANCE COMPANY OF HARTFORD,
GREAT AMERICAN INSURANCE COMPANIES and ALLIANCE INSURANCE
COMPANY,

Court:TCA

Archie Sanders, III
Memphis, Tennessee
Attorney for Plaintiff/Appellant
                    
Albert C. Harvey
John W. Rodgers
Memphis, Tennessee
Attorneys for Defendants/Appellees
                    
First Paragraph:

RULE 10 ORDER AND OPINION
This matter appears appropriate for consideration pursuant
to Rule 10(a) of the Rules of the Court of Appeals of
Tennessee. In this case, Appellant, Ellers, Oakley, Chester
& Rike, Inc. (hereinafter Ellers), contracted to provide
engineering, architectural, and consultant services to two
companies.  Ellers later sued these companies for breach of
contract, and each filed counterclaims against Ellers.
Ellers had a contract for professional liability insurance
with Appellee, Security Insurance Company of Hartford
(hereinafter Security).  Ellers notified Security of the
counterclaims and took the position that both countersuits
should be treated as one for insurance purposes.  Security
then sent Ellers a letter indicating that the two claims
would be treated separately and that a separate deductible
would be applied to each.  Ellers subsequently filed this
lawsuit against Security.

Judge: HOLLY KIRBY LILLARD, J.

URL:http://www.tba.org/tba_files/TCA/ELLERS.WPD.WP6
Opinion-Flash

ANNE ADAMS HURDLE, By and through her Attorneys-In-Fact,
WALKER HARDY HURDLE, III and WILLIAM F. HURDLE, and WALKER
HARDY HURDLE, III and WILLIAM F. HURDLE, Individually,
v.
WALKER HARDY HURDLE, JR. and Wife, MARY ANN HURDLE

Court:TCA


G. Rice Byars, Jr.
Memphis, Tennessee
Attorneys for Plaintiffs/Appellees
    
Hal Gerber
Lewie R. Polk, III
Memphis, Tennessee
Attorneys for Defendants/Appellants
                                                                                                                                                                               
First Paragraph:

RULE 10 ORDER AND OPINION
This matter appears appropriate for consideration pursuant
to Rule 10(a) of the Rules of the Court of Appeals of
Tennessee. In this case, appellant, Walker Hardy Hurdle,
Jr,. and Appellee, Anne Adams Hurdle, were divorced in 1973.
 They entered into a property settlement agreement which was
incorporated into the divorce decree.  The property
settlement agreement required Mr. Hurdle, inter alia, to
make a will leaving half his estate upon his death to the
parties two sons and to convey certain properties to an
alimony trust.  Mr. Hurdle subsequently remarried and
children were borne of the second marriage.  Appellees filed
this lawsuit alleging that Mr. Hurdle was making huge gifts
of assets to his second wife and their children, dissipating
the estate that would be left to the sons of Mr. Hurdle and
Appellee under Mr. Hurdles will.  Mr. Hurdle denied this
allegation, arguing that the divorce decree required only
that he have a will leaving half his estate to the parties
sons and that he had complied with this requirement.  Mr.
Hurdle also argued that, despite gifts to his second wife
and their children, his estate, including the alimony trust,
is now larger than it was at the time of the divorce decree,
so there was no dissipation of his estate.

Judge: HOLLY KIRBY LILLARD, J.

URL:http://www.tba.org/tba_files/TCA/HURDLEAA.WPD.WP6
Opinion-Flash

KESTERSON FOODS, v. RONNIE W. SCOTT, 

Court:TCA

David A. Riddick of Jackson
For Plaintiff-Appellant

William R. Neese of Dresden
For Defendant-Appellee
                      
First Paragraph:

In this non-jury case, plaintiff, Kesterson Foods, appeals
from the judgment of the trial court dismissing its suit
against defendant, Ronnie Scott.  The pertinent facts have
been stipulated by the parties and are as follows.  On April
5, 1990 Scott, as a limited partner, and James and Norma
Foust, as general partners, formed a limited partnership
entitled Foust and Scott, L.P. (hereinafter
Partnership), the primary purpose of which was to operate
a convenience store in Camden, Tennessee.  Under the terms
of the partnership agreement, Scott made a capital
contribution of $26,000.00 to the Partnership.  The capital
contribution plus 12 percent interest per annum was to be
repaid by the plaintiffs under an amortization plan in sixty
(60) monthly payments of $591.58.  The Partnership failed to
make the scheduled payments to Scott and in June of 1992,
the balance due was $17,026.61.  In March of 1993,  the
Partnership and Scott negotiated a security agreement and
financing statement, giving Scott a security interest in the
convenience stores inventory.  The security agreement
provided, in pertinent part: This security interest is
granted in consideration of the Secured Parties [Scott]
forbearance from declaring a default, demanding payment in
full and starting collection activities and to secure a
certain obligation, evidenced in the Limited Partnership
Agreement dated April 5, 1990, in the principal amount of
twenty-six thousand dollars ($26,000), payable in sixty
monthly installments of principal and interest at a variable
rate, and other charges as provided therein, together with
any extensions, modifications, and renewals thereof.

Judge: W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

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

OWEN SELBY, v. DR. PATRICIO ILABACA and GEORGE WHITWORTH,
        
Court:TCA

David M. Sullivan of Memphis
For Plaintiff-Appellant

Tim Edwards, James F. Horner, of Glassman, 
Jeter, Edwards & Wade, P.C., of Memphis
For Defendant-Appellee, Whitworth
                      
First Paragraph:

This is a libel suit.  Plaintiff, Owen Selby, appeals from
the order of the trial court granting summary judgment to
defendant, George Whitworth.  The sole issue as stated in
plaintiffs brief is: Whether the trial court erred in this
libel action by finding plaintiff had not shown the
defendant acted with actual malice.

Judge: W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

URL:http://www.tba.org/tba_files/TCA/selby.opn.WP6
Opinion-Flash

DAVID ROY GOINS,v. STATE OF TENNESSEE,  

Court:TCCA

For Appellant:                  For Appellee:
Gregory D. Smith                Charles W. Burson
Attorney                        Attorney General & Reporter
One Public Sq., Suite 321
Clarksville, TN  37040          Hunt S. Brown
(on appeal)                     Assistant Attorney General
                                Criminal Justice Division
Sherman Fetterman               450 James Robertson Parkway
Assistant Public Defender       Nashville, TN  37243-0493
P.O. Box 386
Tazewell, TN  37879             Shayne Sexton
(on appeal and at hearing)      Asst. Dist. Attorney General
                                P.O. Box 455
                                Tazewell, TN  37879
                      
First Paragraph:

The petitioner, David Roy Goins, appeals the trial court's
denial of his petition for post-conviction relief.  The
issues presented for our review are as follows:
(1) whether the petitioner received the effective
assistance of counsel; and
(2) whether the petitioner's guilty pleas were knowingly
and voluntarily made.
We find no error and affirm the judgment of the trial court.

Judge: GARY R. WADE, JUDGE

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

STATE OF TENNESSEE,v CAREY MONGER,  

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:


ROGER SEY            		CHARLES W. BURSON
118 S. Main St.             Attorney General & Reporter
Greeneville, TN   37743
                            AMY L. TARKINGTON
                            Asst. Attorney General
                            450 James Robertson Pkwy.                               
                            Nashville, TN  37243-0493
                
                            C. BERKELEY BELL
                            District Attorney General

                            CECIL C. MILLS, JR.
                            Asst. District Attorney General
                            113 W. Church St.           
                            Greeneville, TN   37743
                   
First Paragraph:

The defendant was indicted for driving under the influence
of an intoxicant (DUI) and found guilty of same after a jury
trial.  After a sentencing hearing, the defendant was
sentenced to eleven months, twenty-nine days, with ten days
to be served in confinement  She was also assessed a fine
of $260.00.

Judge: JOHN H. PEAY, Judge

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

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