TBALink Opinion-Flash

June 17, 1996 -- Volume #2 -- Number #55

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:
05-New Opinons From TSC
00-New Opinons From TSC-Rules
05-New Opinons From TSC-Workers Comp Panel
31-New Opinons From TCA
21-New Opinons From TCCA

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George Dean
TBALink Chief Editor


ELSIE M. BALLARD, COL. LEWIS P. BOONE, JR., USAF (Ret.),
OTIS N. FUSSELL, & EDGAR JOHNSON, individually and on behalf
of all others similarly situated, residents of Psalms, Inc.,
a Tennessee non-profit corporation,
v.
RUDOLF HERZKE, CHARLES S. TRAMMEL, JR., RETIREMENT
COMMUNITIES OF AMERICA - TENNESSEE, INC., PSALMS, INC., and
RETIREMENT COMMUNITIES OF AMERICA, INC.,

Court:TSC

For Plaintiffs:             For Defendant, Palms, Inc.:
C. Barry Ward               W. J. Michael Cody
Paul R. Lawler              John W. Chandler, Jr.
Glankler Brown              Douglas F. Halijan
Memphis, Tennessee          Burch, Porter & Johnson
                            Memphis, Tennessee

For Intervenors,            For Defendant, Rudolf Herzke:
The Tennessean and          Hal Gerber
Society of Professional     Lewie R. Polk, III
Journalists:                Gerber Law Offices
William R. Willis           Memphis, Tennessee
Alfred H. Knight                    
Alan D. Johnson
Willis & Knight 
Nashville, Tennessee        For Defendant, Charles Trammell,
                            Jr. and Retirement Communities                          
                            of America  Tennessee, Inc.:
                            J. Alan Hanover
                            James R. Newsom, III
                            Hanover, Walsh, Jalenak & Blair
                            Memphis, Tennessee
 
First Paragraph:

In this appeal we are asked to determine whether the
Chancery Court abused its discretion by modifying a
protective order to allow access to discovery materials
previously protected by the order and by allowing media
intervention.  The Court of Appeals reversed the Chancery
Court, finding an abuse of discretion and reinstated the
protective order which denied access to the discovery
materials.

Judge: ANDERSON, C. J.

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

STATE OF TENNESSEE, v. TIMOTHY D. HARRIS and CRAIG THOMPSON,    

Court:TSC

ATTORNEYS: N/A                          

First Paragraph:

ORDER ON PETITION FOR REHEARING
The Appellees, Timothy  D. Harris and Craig Thompson, have
filed a consolidated petition for rehearing in this case.
After due consideration, the Court concludes that the
petition is without merit and should be denied. It is,
therefore, ORDERED that the Appellees petition for
rehearing be and the same is hereby denied.

Judge: PER CURIAM

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

STATE OF TENNESSEE, v. CLARK LYNN,
DISSENTING OPINION 

Court:TSC

For Appellant:                  For Appellee:

Robert S. Peters                Charles W. Burson
Swafford, Peters & Priest       State Attorney General 
Winchester, TN 
                                Darian B. Taylor
                                Assistant Attorney General
                                Nashville, TN 

First Paragraph:

In this case we must determine what effect a total failure
to follow statutory jury selection procedures has on a
criminal jury trial.  Under the circumstances here, we
conclude that the failure to comply with those important
procedures was prejudicial to the administration of justice.
 Consequently, we reverse the conviction and remand this
case for a new trial.  We discuss the other issues raised on
appeal in the event they reoccur on retrial.

Judge: WHITE, J.

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

STATE OF TENNESSEE, v. JOHNNY LACURTIS PHILLIPS,

Court:TSC

For Appellant:                  For Appellee:

Johnny Lacurtis Phillips        Charles W. Burson
Pro se                          Attorney General/Reporter
Tiptonville, TN             
                                Michael E. Moore
                                Solicitor General

                                Linda A. Ross
                                Solicitor General
                                Nashville, TN 
                  
First Paragraph:

In this cause, we granted review in order to determine
whether the imposition of three convictions for sexual
conduct occurring during a single criminal episode
violates constitutional provisions against double jeopardy. 
After carefully examining the facts and thoroughly
considering applicable law, we conclude that the record
before us supports the imposition of three convictions and
that double jeopardy provisions are not implicated here. 
Accordingly, the judgment of the Court of Criminal Appeals
upholding the convictions is affirmed.

Judge: BIRCH, J.

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

TERESA DAVIS, v. TECUMSEH PRODUCTS COMPANY,
w/ JUDGMENT ORDER

Court: TSC (Workers Comp Panel)

For Appellant:                      For Appellee:

David F. Hessing                    Art D. Wells
Hessing, Ventimiglia & Swayne       Hill Boren P. C
Paris, Tennessee                    Jackson, Tennessee
                      
First Paragraph:

This workers' compensation appeal has been referred to the
Special Workers' Compensation Appeals Panel of the Supreme
Court in accordance with Tenn. Code Ann. section
50-6-225(e)(3) for hearing and reporting of findings of fact
and conclusions of law.  The only issue is the extent of the
claimant's permanent partial disability.  The panel
concludes that the award of benefits on the basis of forty
percent to both arms should be affirmed.

Judge: Loser, Judge

URL:http://www.tba.org/tba_files/TSC_WCP/DAVISTER.OPN.WP6
URL:http://www.tba.org/tba_files/TSC_WCP/DAVISTER.JDG.WP6
Opinion-Flash

REVA PITTS, 
v. 
NATIONAL UNION FIRE INSURANCE COMPANY and SUE ANN HEAD,
DIRECTOR OF THE DIVISION OF WORKERS' COMPENSATION, TENNESSEE
DEPARTMENT OF LABOR, SECOND INJURY FUND

Court: TSC (Workers Comp Panel)

For Appellant, National Union:      For Appellee:

Linda J. Hamilton Mowles            David H. Dunaway
Lewis, King, Krieg, 
Waldrup & Catron                    David H. Dunaway & Assoc.
Knoxville, Tennessee                Lafollette, Tennessee

For Appellant, Second Injury Fund:

Charles W. Burson
Attorney General & Reporter

Sandra E. Keith
Assistant Attorney General
Nashville, Tennessee

First Paragraph:

This workers' compensation appeal has been referred to the
Special Workers' Compensation Appeals Panel of the Supreme
Court in accordance with Tenn. Code Ann. section
50-6-225(e)(3) for hearing and reporting of findings of fact
and conclusions of law.  In this appeal, the employer's
insurer, National Union, asserts that the evidence
preponderates against the trial court's findings that (1)
the claimant's injury was one arising out of her employment,
(2) the claimant is permanently and totally disabled , and
(3) the claimant gave the required notice to the employer. 
The Second Injury Fund (the Fund) asserts that the evidence
preponderates against the trial court's finding that (1) the
claimant is permanently and totally disabled and (2) the
claimant is entitled to more than twenty-two weeks of
temporary total disability.  The panel has concluded that
the judgment should be modified as set forth below.

Judge: Loser, Judge

URL:http://www.tba.org/tba_files/TSC_WCP/PITTVNAT.OPN.WP6
Opinion-Flash

WILLIAM RICHARDSON, v. MURRAY OHIO MANUFACTURING COMPANY,                   
w/ JUDGMENT ORDER

Court: TSC (Workers Comp Panel)

For the Appellant:              For the Appellee: 

Ben Boston                      J. Daniel Freemon
Christopher V. Sockwell         Freemon & Hillhouse  
Boston, Bates & Holt            327 W. Gaines St.
235 Waterloo St.                P.O. Box 787
P.O. Box 357                    Lawrenceburg, TN  38464
Lawrenceburg, TN  38464

First Paragraph:

This workers' compensation appeal has been referred to the
Special Workers' Compensation Appeals Panel of the Supreme
Court in accordance with Tenn. Code Ann.  50-6-225(e)(3)
for hearing and reporting to the Supreme Court of findings
of fact and conclusions of law. The trial court awarded the
plaintiff 15% permanent partial disability to the body as a
whole.  The defendant below appeals, challenging the trial
court's finding that plaintiff retains a permanent
impairment as a result of his work-related  injury.

Judge: BYERS, Senior Judge 

URL:http://www.tba.org/tba_files/TSC_WCP/RICHARDS.OPN.WP6
URL:http://www.tba.org/tba_files/TSC_WCP/RICHARDS.JDG.WP6
Opinion-Flash

IN THE MATTER OF:
AVIS BASS, DECEASED 
CHARLIE HOLLIDAY, EXECUTOR OF THE ESTATE OF RUTH BASS,
DECEASED,
v.
DONNA BASS GROFF,           

Court:TCA

ERNEST A. JETTON
ED MULLIKIN
Memphis, Tennessee
Attorneys for Appellant

H. MORRIS DENTON
Bolivar, Tennessee
Attorney for Appellee
                          
First Paragraph:

This is an appeal from the trial courts order establishing
a years support for decedents widow, Ruth Bass, in the
amount of $14,000.00.  Ruth Bass died prior to this appeal,
and the executor of her estate, Charlie Holliday, was
substituted as appellee.  Appellant is Donna Bass Groff,
daughter of the decedent, who seeks to set aside the order
for years support on the basis that Ruth Bass received a
significant amount of assets that passed outside of the
probate estate.  The trial court held that assets passing
outside of the probate estate could not be considered in
determining the years support pursuant to the version of
T.C.A.  30-2-101 that was in effect at the time of the
decedents death.   For the reasons stated below, we affirm
the judgment of the trial court.

Judge: ALAN E. HIGHERS, J.

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

ESTATE OF WALTER I. BATES, v. GLENDA DAWSON,

Court:TCA

JAMES HARVEY STUTTS of DIXON & STUTTS, Sweetwater, 
for Appellant

B. PRINCE MILLER, JR., Cleveland, for Appellee
                         
First Paragraph:

This is a suit on a promissory note.  After a bench trial,
the court below awarded the plaintiff a judgment for
$16,083.68 and the defendant appealed.  The only issue on
this appeal is whether the evidence preponderates against
the trial courts judgment.  See Rule 13(d), T.R.A.P.  The
trial courts findings in this case are dependent on its
determination regarding the credibility of the witnesses. 
In such a case, a trial courts findings are entitled to
great weight.  Galbreath v. Harris, 811 S.W.2d 88, 91
(Tenn. App. 1990).  Our de novo review of the record does
not persuade us that the evidence preponderates against the
trial courts factually-driven findings.  The judgment below
is affirmed.  Costs on appeal are assessed against the
appellant and her surety.  This case is remanded for
enforcement of the judgment and collection of costs assessed
below, all pursuant to applicable law.

Judge: Susano, J.

URL:http://www.tba.org/tba_files/TCA/BATES.MO.WP6
Opinion-Flash

JERRY T. BEECH CONCRETE CONTRACTOR, INC. v. MARY HENDERSON,

Court:TCA

Maclin P. Davis, Jr.
Nashville, Tennessee
Attorney For Appellee

Joseph K. Dughman
Bruce, Weathers, Corley, Dughman & Lyle
Nashville, Tennessee
Attorney for Appellant
                      
First Paragraph:

This case concerns the payment on a contract for
installation of a concrete driveway.  Jerry T. Beech
Concrete Contractor, Inc. (hereinafter, "Beech") filed suit
against Mary Henderson (hereinafter, "Henderson") on a sworn
account for nonpayment of the contract price for installing
a concrete driveway and a box drain.  Following a bench
trial, the trial court found that Beech and Henderson
contracted to install a driveway and a box drain, but the
trial court determined that Beech had installed the driveway
in an unworkmanlike manner causing it to have defects.  As a
result, the trial court awarded Beech the contract price
offset by the amount of property damage Henderson allegedly
suffered.  Beech appealed, and the appeal is properly before
this Court.  We affirm in part and reverse in part.

Judge: WILLIAM H. WILLIAMS, SENIOR JUDGE

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

TERESA G. BRADFORD, v. DONNIE R. BRADFORD,      

Court:TCA

CLEO GREER HOGAN
107 North Third Street
Clarksville, Tennessee 37041
ATTORNEY FOR PLAINTIFF/APPELLEE

THOMAS R. MEEKS
137 Franklin Street
Clarksville, Tennessee 37040
ATTORNEY FOR DEFENDANT/APPELLANT
                        
First Paragraph:

On May 16, 1996, appellant moved this Court to rule that
this cause is properly before this Court.
It appears that, on June 9, 1995, this Court dismissed a
previous appeal from a judgment that did not dispose of all
issues pending before the Trial Court.
On March 18, 1996, appellant filed in this Court, the
following motion: Comes now, Donnie R. Bradford, pursuant to
Rule 22 of the Tennessee Rules of Appellate Procedure and
respectfully petitions this court for an order which would
allow the appellant, Donnie R. Bradford to proceed with his
appeal from a judgment of the Chancery Court of Montgomery
County, Tennessee.  The movant would show that he filed a
notice of appeal and the court ruled that said notice of
appeal was premature due to a lack of a final order
addressing the issue of back child support.  The movant
would show subsequent to this courts decision, the parties
entered an order which stated that there was no back child
support due at the time of the initial appeal by the
appellant.  (See exhibit one).  The positions of the
appellant and the appellee are the same as they were on the
24th day of May, 1995.  The appellant requests that his
notice of appeal be treated as [if it had] been filed
subsequent to the parties agreed order as evidenced by
Exhibit One of this motion.  The appellant avers that Rule 4
of the Tennessee Rules of Appellate Procedure allows a
premature notice of appeal to be treated as filed after the
entry of the judgment from which the appeal is taken.  The
movant respectfully prays that this court issue an order
requiring the Clerk and Master to transfer the record of the
trial court proceedings to this court so that a proper
review of the trial courts decision can be made.  (See
exhibit two).

Judge: HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

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

THE ESTATE OF WILLIAM WESLEY BURCHFIEL,
v.
FIRST UNITED METHODIST CHURCH OF SEVIERVILLE, TENNESSEE; THE
UNIVERSITY OF TENNESSEE AT KNOXVILLE; WALTERS STATE
COMMUNITY COLLEGE; TENNESSEE BOARD OF REGENTS OF THE
UNIVERSITY AND COMMUNITY COLLEGE SYSTEMS OF TENNESSEE; and
SEVIER COUNTY, TENNESSEE.

Court:TCA

ANNE M. McKINNEY, Knoxville, for Plaintiff-Appellant.

JERRY H. McCARTER, Gatlinburg, for Defendant-Appellee,
Sevier County, Tennessee.

CHRISTINE MODISHER, Nashville, for Defendants-Appellees,
Walters State Community College, Tennessee Board of Regents.

BEAUCHAMP E. BROGAN, and J. ROBERT WALKER, Knoxville, for
Appellee-Defendant, The University of Tennessee.
                         
First Paragraph:

In this action to construe a will, the Trial Court
determined that the Walters State Community Colleges
proposal to build a branch campus would meet the conditions
set forth in the Testators will, and broadly held that any
existing entity under the control of the Tennessee Board of
Regents could be used to meet the conditions set forth in
the will.

Judge: Franks .J

URL:http://www.tba.org/tba_files/TCA/BURCHF.OP.WP6
Opinion-Flash

DREXEL CHEMICAL COMPANY,v. BITUMINOUS INSURANCE CO.,

Court:TCA

MICHAEL F. RAFFERTY
Memphis, Tennessee
Attorney for Appellant

ROBERT D. FLYNN
LOUISE P. GAERIG
Memphis, Tennessee
Attorney for Appellee                      

First Paragraph:

In this case, plaintiff, Drexel Chemical Co., seeks a
declaratory judgment that its insurer, Bituminous Insurance
Co., is obligated to defend and indemnify Drexel in a suit
currently pending in a Tennessee federal district court. 
Both Drexel and Bituminous filed motions for summary
judgment.  The trial court overruled Drexel's motion, but
granted Bituminous' motion, holding that a policy exclusion
relieved Bituminous of its duty to defend and to provide
coverage to Drexel.  Drexel has appealed the trial court's
judgment, arguing that the underlying claims against it are
not excluded by the policy provisions.  For the reasons
stated hereafter, we affirm.

Judge: ALAN E. HIGHERS, J.

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

REBECCA ELLIOTT 
v.
PERRY H. WINDLE, III and BURKHALTER & WINDLE, P.C.

Court:TCA

                          

First Paragraph:

THERESA COLLINS WILLOCKS, OF KNOXVILLE, TENNESSEE, FOR
APPELLANT

R. FRANKLIN NORTON and GEOFFREY D. KRESSIN, WITH NORTON AND
LUHN, OF KNOXVILLE, TENNESSEE, FOR APPELLEES

First Paragraph:

The Plaintiff has appealed from a summary judgment for the
Defendants in her suit for legal malpractice.  We affirm.
In April, 1993, the Plaintiff-Appellant retained the law
firm of Burkhalter & Windle, P.C., including Mr. Perry H.
Windle, III, as a member of the firm, to represent her in an
employment dispute with her former employer, Southern
Skillet Corporation. In May, 1993, Defendants filed suit on
behalf of the Plaintiff against Southern Skillet alleging
violation of the overtime pay provisions of the Fair Labor
Standards Act, violation of the Equal Pay Act, and
retaliating against Plaintiff for filing or instituting a
proceeding under the Fair Labor Standards Act.

Judge: Sanders, Sp.J.

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

CPB MANAGEMENT, INC. and PETER S. BROWN ACCOUNTANCY
CORPORATION,
v.
DON EVERLY, Individually and OLD BLACK CROW, INC.,      

Court:TCA

LARRY D. ASHWORTH
PETER D. HEIL
Nashville, Tennessee
Attorneys for Appellants

R. HORTON FRANK, III
FRANK & FRANK, PLLC
Nashville, Tennessee
Attorney for Appellees

First Paragraph:

Plaintiffs in this case are CPB Management, Inc. (CPB), a
business management services company, and Peter S. Brown
Accountancy Corp. (Brown Accountancy). Peter S. Brown is the
sole officer and stockholder of both CPB and Brown
Accountancy. Defendants are Don Everly of the Everly
Brothers, and Old Black Crow, Inc., the corporate entity
through which Don Everly conducts his business. Plaintiffs
brought this suit against defendants to recover for certain
accounting and management services allegedly performed for
defendants.  The chancellor held that Brown Accountancy was
entitled to recover $5,322.25 from Old Black Crow, Inc.,
pursuant to an express oral contract between the parties,
and that CPB was entitled to recover $33,900.00 from Don
Everly individually, under a theory of unjust enrichment.
Defendants have appealed and presented the following issues
for our review: (1) whether the chancellor erred in awarding
damages to CPB on an unjust enrichment theory when there
existed an express contract between the parties; (2) whether
the trial court erred in holding Old Black Crow, Inc. liable
to Brown Accountancy for accounting services; and (3)
whether the trial court erred in ruling that CPB was not
required to possess a valid certificate of authority in
order to maintain this action.  For the reasons stated
below, we reverse the trial courts judgment in part, and
affirm in part.

Judge: ALAN E. HIGHERS, J.

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

JACQUELINE S. EDENFIELD FLORIAN  v. MARK EMMETT EDENFIELD

Court:TCA

DOUGLAS J. TOPPENBERG OF KNOXVILLE FOR JACQUELINE EDENFIELD FLORIAN

JOHN S. BINGHAM OF KINGSPORT FOR MARK EMMETT EDENFIELD

First Paragraph:

Jacqueline S. Edenfield Florian and her former husband, Mark
Emmett Edenfield, appeal orders entered in the Circuit Court
for Sullivan County.  The appeals arise from two separate
proceedings involving their minor child, which have been
consolidated in this Court.

Judge: Goddard, P.J. 

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

JULIUS GARTON, SUE GARTON EDWARDS and JAMES GARTON,
Individually, and SUE GARTON EDWARDS, on behalf of the
Estate of MARIE GARTON RANDOLPH,    
VS.                     
HENRY NORMAN,               

Court:TCA

DANA DYE
P. O. Box 11 
105 West End Avenue
Centerville, Tennessee 37033
Attorney for Plaintiffs/Appellants

THOMAS T. WOODALL
203 Murrell Street
P. O. Box 1075
Dickson, Tennessee 37056-1075
Attorney for Defendant/Appellee
                        
First Paragraph:

Three of the beneficiaries under the will of their aunt,
Marie Randolph, brought suit against another beneficiary,
Mrs. Randolphs nephew Henry Norman, claiming that he had
misused a confidential relationship with the testator to
deplete her estate prior to her death.  The trial court
entered judgment for Mr. Norman, finding that Mrs. Randolph
had transferred the bulk of her assets to him before a
confidential relationship was established and that there was
no evidence that he exercised undue influence over her. 
There was also no evidence that he failed to adequately
provide for his aunts health care while exercising
responsibility for her under a power of attorney.  We
affirm.

Judge: BEN H. CANTRELL, JUDGE

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

DAVID GEORGE and SHERRY GEORGE, 
v. 
DANIEL MOVING AND STORAGE COMPANY, INC.,

Court:TCA

Joel H. Moseley, Moseley & Moseley, of Nashville
For Appellant

Clinton W. Watkins of Brentwood
For Appellees
                       
First Paragraph:

Defendant, Daniel Moving and Storage Company, Inc., appeals
the trial courts order in a non-jury case awarding damages
of $4,000.00 to Plaintiffs, David and Sherry George. On June
28, 1991, David George signed a contract with defendant
whereby the defendant agreed to move the Georges household
goods from Ooltewah, Tennessee to the Nashville area. When
the Georges originally contacted the defendant, they did not
plan to store their furniture; however, on the day of the
move, Mrs. George inquired about storage because the Georges
had yet to secure a new residence. 

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

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

BENNY GREEN, d/b/a  K.B.STAVES COMPANY  
v. 
KYLE A. JUSTICE                        
ULTIMATE MANUFACTURING, INC.    

Court:TCA

VICTOR PRYOR OF JACKSBORO FOR KYLE A. JUSTICE

JOSEPH G. COKER OF JACKSBORO FOR BENNY GREEN
                         
First Paragraph:

Benny Green, d/b/a  K.B. Staves Company, sues Kyle A.
Justice, assignee of the rights of Ultimate Manufacturing,
Inc., as to a certain instrument denominated a purchase
agreement (see Appendix A) and Ultimate Manufacturing, Inc. 
The suit sought damages totaling $25,000 because of the
Defendants' failure to reimburse Mr. Green $2000, which they
had promised, as well as for their failure to pay for
firewood sold to the Defendants.  Curiously, the suit also
sought a declaration that "no definite or enforceable
contract was ever entered into between the parties.

Judge: Goddard, P.J. 

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

CYNTHIA HOLCOMB,   
v.
KYLE PARKINS and wife, GLORIA PARKINS, and ANDREW JOHNSON
BANK,

Court:TCA

FRANCIS X. SANTORE, JR., Santore and Santore, Greenville for
appellant.

JERRY W. LAUGHLIN and JOHN T. MILBURN ROGERS, Rogers,
Laughlin, Nunnally, Hood and Crum, Greenville for appellees.

First Paragraph:

The appellee, Mrs. Parkins, filed a motion pursuant to Rule
60.02, Tennessee Rules of Civil Procedure, for relief from a
default judgment entered against her in favor of the
appellant, Cynthia Holcomb.  Ms. Holcomb has appealed
claiming that the trial court erred in granting the motion. 
We reverse the trial court.

Judge: McMurray, J.

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

IN THE MATTER OF KAYLA LYNN HOOD, A Minor
DAVID VINEYARD, 
v.       
HEATHER ELAINE HOOD, DONNA HOOD and ALLEN HOOD,           

Court:TCA

CHARLES M. CLIFFORD, Maryville, for Appellant

ROBERT M. COHEN, Maryville, for Appellees

CHARLES W. BURSON, Attorney General & Reporter, and JENNIFER
HELTON SMALL, Deputy Attorney General, General Civil
Division, for the State of Tennessee
                      
First Paragraph:

In this case, David Vineyard seeks to legitimate and
establish a parent-child relationship with his alleged
daughter, Kayla Lynn Hood, who was born to Heather Elaine
Hood (Mother) on November 8, 1994.  Mother opposes
Vineyards attempt to legitimate the child on the ground
that she has not consented to the childs legitimation. 
Mother and her parents filed a motion to dismiss, which the
juvenile court granted, holding, in effect, that a putative
father has no avenue by which to legitimate his child,
absent the mothers consent, under Tennessees legitimation
statutes.

Judge: Susano, J.

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

KYLE A. JUSTICE v. BENNY GREEN, Agent For K.B.Staves        

Court:TCA

VICTOR PRYOR OF JACKSBORO FOR APPELLANT

JOSEPH G. COKER OF JACKSBORO FOR APPELLEE
                   
First Paragraph:

Kyle A. Justice, who appeared pro se in the Trial Court,
appeals dismissal of his suit against Benny Green, seeking
damages for breach of contract.  The Trial Court, on motion
of Mr. Green, dismissed the suit under the doctrine of
former suit pending, there being a prior suit filed by Mr.
Green against Mr. Justice in the Circuit Court for Campbell
County, seeking a declaration of rights as to the contract,
as well as a recovery for its breach.

Judge: Goddard, P.J. 

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

KAREN ELAINE WHITE KITE  v. ARLIN JAY KITE      
w/ D I S S E N T I N G   O P I N I O N

Court:TCA

ROBERT R. SIMPSON, WITH ESHBAUGH, SIMPSON AND VARNER, OF
KNOXVILLE, TENNESSEE, FOR APPELLANT

WILLIAM C. CREMINS OF KNOXVILLE, TENNESSEE, and LAURA RULE
HENDRICKS, OF KNOXVILLE, TENNESSEE, FOR APPELLEE
                    
First Paragraph:

The Plaintiff has appealed from a chancery decree dismissing
her petition for an order of protection because the hearing
on the petition was not held within 10 days of the service
on the Defendant of an ex parte order of protection, as
required by the statute.

Judge: Sanders, Sp.J.

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

KRZYSZTOF KRAKOWIAK,    
v.
THE PAUL REVERE LIFE INSURANCE COMPANY,

Court:TCA

AUGUST C. WINTER
Two Brentwood Commons, Suite 150
750 Old Hickory Boulevard
Brentwood, Tennessee  37027
ATTORNEY FOR PLAINTIFF/APPELLANT

LUIS C. BUSTAMANTE
J. FORD LITTLE
Woolf, McClane, Bright, Allen
  & Carpenter
900 S. Gay Street, Suite 900
P. O. Box 900
Knoxville, Tennessee  37901-0900
ATTORNEYS FOR DEFENDANT/APPELLEE
                        
First Paragraph:

Plaintiff Krzysztof Krakowiak appeals from the trial courts
judgment granting the defendant, The Paul Revere Life
Insurance Company ("Paul Revere") his motion for summary
judgment, and the failure of the trial court to grant its
motion for partial summary judgment.

Judge: SAMUEL L. LEWIS, JUDGE

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

JOHN LAY,  v. SHEILA LAY (JACKSON), 

Court:TCA

JOHNNY V. DUNAWAY, LaFollette, for Appellant.

TERRY M. BASISTA, Jacksboro, for Appellee.
                        
First Paragraph:

In this divorce action, the appellant, Ms. Lay, by choice,
did not make an appearance in the trial court.  A default
judgment was granted awarding a divorce to the appellee, Mr.
Lay.  Some thirteen months later, the appellant filed a Rule
60.02 motion asking for relief from the judgment regarding
the division of marital property.  The trial court denied
the motion.  This appeal resulted.  We affirm the judgment
of the trial court.

Judge: McMurray, J.

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

KNOX-TENN RENTAL COMPANY, and ROBERT C. LOWE,       
v.
THE HOME INSURANCE COMPANY and RONALD L. JENKINS,       

Court:TCA

PHILIP P. DURAND and RONALD L. GRIMM, AMBROSE, WILSON, GRIMM
& DURAND, and ARCHIE R. CARPENTER, CARPENTER & OCONNOR,
Knoxville, for Plaintiffs-Appellants.

THOMAS C. CORTS, ORTALE, KELLEY, HERBERT & CRAWFORD,
Nashville, for Defendant-Appellee, The Home Insurance
Company.
                         
First Paragraph:

Plaintiffs action to require defendant insurance company to
satisfy an alleged balance owing on the plaintiffs state
court judgment was dismissed by the Chancellor, who
determined the judgment between plaintiffs and defendant in
U.S. District Court was res judicata on the claim in this
action.

Judge: Franks. J.

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

MARVIN MCCARLEY and ELLISE MCCARLEY, 
v. 
WEST QUALITY FOOD SERVICE, 

Court:TCA

T. Verner Smith of Jackson
For Appellants

Clinton V. Butler, Jr., and Dale Conder, Jr., of Rainey, Kizer, 
Butler, Reviere & Bell of Jackson
For Appellee
                        
First Paragraph:

Plaintiffs, Ellise and Marvin McCarley, appeal from the
order of the trial court granting summary judgment in favor
of the defendant, West Quality Food Service, doing business
as Kentucky Fried Chicken in Bolivar, Tennessee.

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

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

MIKE WILSON and DENISE WILSON,   
v.
TAMMY McDONALD, and JAMES ALLOWAY,                  
IN RE: ADOPTION OF  SHAWN RUSSELL LANE McDONALD

Court:TCA

DEBRA L. HOUSE of SOUTHEAST TENNESSEE LEGAL SERVICES,
Cleveland, for Appellant

JERRI S. BRYANT of CARTER, HARROD & CUNNINGHAM, Athens, for
Appellees
                      
First Paragraph:

In this case, Mike Wilson and his wife, Denise Wilson, filed
a petition seeking to adopt Shawn Russell Lane McDonald
(Shawn) (DOB: April 27, 1993).  In their petition, they
alleged that the defendant Tammy McDonald, the childs
biological mother, had abandoned her parental rights. 
Following a bench trial on June 26, 1995, the trial judge
found that Ms. McDonald had abandoned all parental rights
with respect to Shawn.  We granted Ms. McDonalds request
for an interlocutory appeal pursuant to Rule 9, T.R.A.P., to
consider her argument that her conduct was not such as to
evince[] a settled purpose to forego all parental duties
and relinquish all parental claims as that concept is
defined and explained in the case of Ex Parte Wolfenden
(Wolfenden), 349 S.W.2d 713 (Tenn. App. 1959) and its
progeny.

Judge: Susano, J.

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

SHEILA FAYE SMITH,  and DIANE KINSEY,               
v
PENINSULA HOSPITAL, INC., THE LIGHTHOUSE TREATMENT CENTER,
THE KESTNER GROUP, INC., and JAMES E. KESTNER, Individually
w/DISSENTING OPINION

Court:TCA

Jerrold L. Becker and Samuel W. Brown, Knoxville, for
Appellant Sheila Faye Smith and for Appellant Diane Kinsey.

Lewis R. Hagood, Robert N. Townsend and Douglas G. Brehm,
Knoxville, for Appellees.
                         
First Paragraph:

These plaintiffs jointly filed a single complaint against
the appellees for damages allegedly arising out of their
refusal to remain silent concerning or to participate in
alleged illegal activities connected with their employment.
They alleged collectively or singly (1) breach of contract,
(2) violations of the Tennessee Human Rights Act, Tenn. Code
Ann.  4-21-101 et seq., (3) invasion of privacy, (4)
intentional infliction of emotional distress, (5) tortious
interference with contractual and non-contractual rights of
employment, and (6) retaliatory discharge in violation of
common law and the Public Protection Act of 1990, Tenn. Code
Ann.  50-1-304, et seq.  The plaintiffs were admittedly
at-will employees.

Judge: INMAN, Senior Judge

URL:http://www.tba.org/tba_files/TCA/SMIT-KIN.OPN.WP6
URL:http://www.tba.org/tba_files/TCA/SMIT-KIN.DIS.WP6
Opinion-Flash

PAGE G. STUART, v. STATE OF TENNESSEE DEPARTMENT OF SAFETY, 

Court:TCA

RICHARD McGEE
Washington Square Two, Suite 417
Nashville, Tennessee 37201

JOHN E. RODGERS, SR.
Suite 1230, First American Center
315 Deaderick Street
Nashville, Tennessee 37238-1230
ATTORNEYS FOR PETITIONER/APPELLANT

CHARLES W. BURSON
Attorney General & Reporter

JOHN ZIMMERMANN
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue, North
Nashville, Tennessee 37201-1649
FOR RESPONDENT/APPELLEE
                       
First Paragraph:

This appeal involves a judicial review of administrative
proceedings before the Commissioner of Safety seeking the
release of property seized by law enforcement officers
pursuant to T.C.A. Section 53-11-451.From September 8, 1992
through June 18, 1993, law enforcement officers seized
various properties allegedly connected with plaintiffs
illegal drug activities. Plaintiff filed timely claims for
release of the following properties: $120,406.00 in U.S.
Currency, seized 9/8/92; $159,227.00 in U.S. Currency,
seized 9/9/92; 1993 GMC Truck, VIN: 2GTEC19K1P1507785,
seized 11/9/92 and 5/21/93; $3,000.00 in U.S. Currency,
seized 4/12/93; $35,260.00 in U.S. Currency, Treasury Check
for $8,820.00 and 100 Boxes of Sport Cards, seized 5/21/93;
$315,000.00 in U.S. Currency, seized 6/3/93; and Two
Cashiers Checks for $3,000.00 and $5,000.00, seized
6/18/93.

Judge: HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

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

TRINA TUCK, v. STATE OF TENNESSEE,  
w/ OPINION CONCURRING IN PART AND DISSENTING IN PART

Court:TCA

RALPH M. MAYLOTT, Oak Ridge, for Appellant.

BEAUCHAMP E. BROGAN, General Counsel, RONALD C. LEADBETTER,
Associate General Counsel, University of Tennessee, and
RHONDA ALEXANDER, Attorney, Knoxville, for Appellee.
                         
First Paragraph:

This is an appeal from the action of the Tennessee Claims
Commissioner in denying the claimant relief sought by a
motion filed pursuant to Rule 60.02, Tennessee Rules of
Civil Procedure.  Specifically, the claimant challenges the
validity of Tennessee Claims Commission Rule
0310-1-1-.01(5)(c).  Claimant insists that the rule is in
contravention of Rule 56, Tennessee Rules of Civil Procedure
and further is a violation of Article 11, Section 8 of the
Tennessee Constitution.  We respectfully disagree and affirm
the judgment of the claims commissioner.

Judge: McMurray, J

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

TAMMY LYNN E. TYNDALL,  v. DONALD RAY TYNDALL,      

Court:TCA

SHERRY B. PATY, Chattanooga, for Plaintiff-Appellee.

J. ESTES COCKE, East Ridge, for Defendant-Appellant.
                       
First Paragraph:

In this divorce action, the mother was awarded custody of
the parties son and daughter, ages four and three at the
time of the divorce.  The husband has appealed, insisting
that it was error for the Trial Court to award custody of
the children to the mother, and then allowing the mother to
move from Chattanooga with the two children to Scott County,
Tennessee.

Judge: Franks. J.

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

DELOY WINNINGHAM,   v. MAYFIELD BROWN and E. R. MCLERRAN,           

Court:TCCA

JOHN PHILIP PARSONS
MADEWELL, JARED, HALFACRE & WILLIAMS
230 North Washington Avenue
Cookeville, Tennessee 38501
Attorney for Plaintiff/Appellant

JAMES D. WHITE, JR.
101 Green Street
Celina, Tennessee 38551
Attorney for Defendants/Appellees
                     
First Paragraph:

This is an action for specific performance and/or damages
arising from an alleged fraudulent inducement to contract. 
The lower court dismissed the plaintiffs claim.  We affirm.

Judge: BEN H. CANTRELL, JUDGE

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

MALCOLM YATES WORLEY, v. RITA K. WORLEY,    

Court:TCA

DOUGLAS THOMPSON BATES, III
P.O. Box 1
Centerville, Tennessee 37033
ATTORNEY FOR PLAINTIFF/APPELLANT

DANA DYE
P.O. Box 11
105 West End Avenue
Centerville, Tennessee 37033
ATTORNEY FOR DEFENDANT/APPELLEE
                        
First Paragraph:

This is a suit and countersuit for divorce in which the wife
was granted an absolute divorce on grounds of inappropriate
marital conduct of the husband.  On appeal, the husband
presents issues which relate only to identification and
division of the marital estate: The parties were married in
1958 and separated in 1995.  Both parties worked during the
marriage Their earnings were approximately equal.  There
are no minor children.

Judge: HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

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

DANITA D. and RODNEY YOUNGBLOOD,
v. 
KITTY REBECCA QUILLIAMS SOLOMON,

Court:TCA

PAUL CAMPBELL, III, Campbell and Campbell, Chattanooga, for
Appellant.

HOYT O. SAMPLES, Samples, Jennings & Pineda, Chattanooga,
for Appellees.
                       
First Paragraph:

This action arises from a typical intersection-traffic-
light automobile accident.  The case was tried before a
jury.  The jury rendered a verdict finding the
defendant-appellant to be 100 percent at fault and
established damages at $4,000 for the plaintiff, Rodney
Youngblood and $11,500.00 for the plaintiff, Danita D.
Youngblood.  A counterclaim was dismissed.  Judgment was
entered on the jury verdict and this appeal resulted.  We
affirm in part and reverse in part.

Judge: McMurray, J.

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

STATE OF TENNESSEE, v. ROBERT J. BURTON, SR.,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

VICTORIA L. DIBONAVENTURA   CHARLES W. BURSON
Attorney at Law             Attorney General and Reporter
209 West Wood Street
Paris, TN  38242            WILLIAM DAVID BRIDGERS
(at trial)                  Assistant Attorney General
                            450 James Robertson Parkway
JOSEPH P. ATNIP             Nashville, TN  37243
District Public Defender
(at new trial)              THOMAS A. THOMAS
                            District Attorney General
LANGDON S. UNGER, JR.
Assistant Public Defender   ALLEN J. STRAWBRIDGE, JR.
27th Judicial District      Assistant District Attorney
P.O. Box 1022               P. O. Box 218
Martin, TN  38237           Union City, TN  38261
(on appeal)
                     
First Paragraph:

A Weakley County Circuit Court jury found Appellant Robert
Burton guilty of one count of rape and one count of incest. 
As a Range I standard offender, Appellant received a
sentence of twelve years for the rape conviction and a
sentence of six years for the incest conviction.  The
sentences were ordered served concurrently.  In this appeal,
Appellant presents two issues for review: (1) whether the
evidence presented at trial is legally sufficient to sustain
convictions for rape and incest; and (2) whether the length
of sentence is excessive.  Additionally, the State presents
an issue unaddressed by Appellant regarding the introduction
of testimony under the fresh complaint doctrine.

Judge: JERRY L. SMITH, JUDGE

URL:http://www.tba.org/tba_files/TCCA/BURTONRB.OP.WP6
Opinion-Flash

STATE OF TENNESSEE, v. BRIAN K. CASS,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Brian K. Cass, Pro Se       Charles W. Burson
2112 Prince Place           Attorney General and Reporter
Savannah, Tennessee 38372   450 James Robertson Parkway
                            Nashville, Tennessee 37243-0493

                            Christina S. Shevalier
                            Assistant Atty. Gen. & Reporter
                            450 James Robertson Parkway
                            Nashville, Tennessee 37243-0493

                            Elizabeth T. Rice
                            District Attorney General
                            302 Market Street
                            Somerville, Tennessee 38068
                            
                            Ed McDaniel
                            Assistant District AG
                            300 Industrial Park
                            Selmer, Tennessee 38375
                       
First Paragraph:

On September 28, 1994, the appellant, Brian K. Cass, was
convicted by a McNairy County jury of the offense of driving
under the influence of an intoxicant.  The jury assessed a
$500.00 fine against the appellant, and the trial court
sentenced him to eleven months and twenty-nine days, with
all but six days in jail suspended.  The appellant,
proceeding pro se, has filed this appeal alleging a
multitude of trial court errors, some of which he contends
are of constitutional proportions.  Specifically, he
contends that he was subjected to an invalid search and
seizure at the time of his arrest; that he was
unconstitutionally denied the right of counsel; that he was
denied his right to compulsory process; and that he was
denied his constitutional right to a fair and impartial
jury.  Additionally, the appellant contends that the trial
judge and the district attorney general and her assistants
had no authority to try and prosecute him for the offense
charged; that the grand jury indictment against him was
defective; and that the petit jury hearing the case was
unlawfully constituted.

Judge: William M. Barker, Judge

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

STATE OF TENNESSEE, v. KENNY CHEATHAM,

Court:TCCA

FOR THE APPELLANT:      FOR THE APPELLEE:

ERIC L. DAVIS           CHARLES W. BURSON
317 Main Street,        Attorney General and Reporter
Franklin, TN 37064
                        ELLEN H. POLLACK
                        Assistant Attorney General
                        450 James Robertson Parkway
                        Nashville, TN 37243-0493

                        JOE D. BAUGH, JR.
                        District Attorney General

                        DEREK SMITH
                        Assistant District Attorney General
                        P.O. Box 937
                        Franklin, TN 37065-0937
                         
First Paragraph: 

The Defendant, Kenny Cheatham, brings this appeal as of
right from a jury verdict convicting him of conspiracy to
sell and deliver cocaine.  For this Class C felony,  the
jury imposed a fine of ten thousand dollars, and the trial
court sentenced him as a Range I standard offender to a
six-year sentence in the Department of Correction.

Judge: DAVID H. WELLES, JUDGE

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

STATE OF TENNESSEE, v. GLEN D. CLAYBORNE,   

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

LARRY E. FITZGERALD         CHARLES W. BURSON
22 North Second Street      Attorney General and Reporter
Suite 410
Memphis, TN  38103          RUTH ANNE THOMPSON
                            Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN  37243

                            JOHN W. PIEROTTI
                            District Attorney General

                            JAMES M. LAMMEY, JR.
                            Assistant District Attorney
                            201 Poplar Avenue
                            Memphis, TN  38104        

First Paragraph:

A Shelby County Criminal Court jury found Appellant Glen
Clayborne guilty of one count of second degree murder and
one count of reckless homicide.  As a Range I standard
offender, Appellant received a sentence of twenty-five years
for the second degree murder conviction and two years for
the reckless homicide conviction.  He also received an eight
year sentence as a result of parole violation.  All
sentences were ordered served consecutively.  In this
appeal, Appellant presents four issues for review: (I)
whether the evidence presented at trial is legally
sufficient to sustain a conviction for second degree murder;
(II) whether the trial court erred in admitting certain
evidence; (III) whether the trial court erred in finding no
mitigating factors in determining the length of his
sentence; and (IV) whether the trial court erred in refusing
to allow Appellants trial counsel to instruct the jury
regarding moral certainty.

Judge: JERRY L. SMITH, JUDGE

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

SHARON ANN CONNER,  v. STATE OF TENNESSEE,

Court:TCCA

For the Appellant:      For the Appellee:
William H. Bell         Charles W. Burson
114 South Main Street   Attorney General of Tennessee
Greeneville, TN 37743   and
                        Eugene J. Honea
                        Assistant Attorney General of TN    
                        450 James Robertson Parkway     
                        Nashville, TN 37243-0493

                        C. Berkeley Bell, Jr.
                        District Attorney General
                            and
                        Cecil Mills, Jr.
                        Assistant District Attorney General
                        113-J W. Church St.
                        Greeneville, TN 37743
                          
First Paragraph:

The petitioner, Sharon Ann Conner, appeals as of right from
the Greene County Criminal Courts dismissal of her petition
for post-conviction relief because it was untimely filed. 
The petitioner was convicted of driving while under the
influence of an intoxicant (DUI) on February 8, 1988.  She
did not appeal her conviction and has served the sentence
she received.

Judge: Joseph M. Tipton, Judge

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

STATE OF TENNESSEE v. CARLOS D. CRUTCHER

Court:TCCA

FOR THE APPELLANT:

J. Estes Cocke
Attorney At Law
4159 Ringgold Road, #106
East Ridge, Tn. 37412

FOR THE APPELLEE:

Charles W. Burson
Attorney General and
Michael J. Fahey, II
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tn. 37243  

Bates Bryan, Jr.
Assistant District Attorney
Courts Building
Chattanooga, Tn.  37402                        

First Paragraph:

Appellant, Carlos  D. Crutcher, appeals as of right from the
trial court's dismissal of his petition for post-conviction
relief. The appellant had originally been charged with First
Degree Murder. On March 14, 1991, appellant pled guilty to
Murder in the Second Degree and received a sentence of 50
years as a Range III offender.

Judge: CHARLES LEE, Special Judge

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

JACKIE RAY FOSTER,  v., STATE OF TENNESSEE, 

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:


THOMAS T. OVERTON           CHARLES W. BURSON
213 Third Ave. N.           Attorney General & Reporter
Nashville, TN   37201
                            ELLEN H. POLLACK
                            Asst. Attorney General
                            450 James Robertson Pkwy.                               
                            Nashville, TN  37243-0493
                
                            VICTOR S. JOHNSON, III
                            District Attorney General

                            JOHN P. SEABORG
                            Asst. District Attorney General
                            200 Washington Square
                            Suite 500
                            Nashville, TN   37201                               

First Paragraph:

The petitioner was indicted for thirty counts of aggravated
rape and fourteen counts of aggravated sexual battery.  He
pled guilty to and was convicted of two counts of aggravated
rape and two counts of aggravated sexual battery.  He was
sentenced as a Range I, standard offender to twenty-five
years for each of the aggravated rape convictions, and
twelve years for each of the aggravated sexual battery
cases, all sentences to run concurrently for an effective
sentence of twenty five years.  This was the sentence
recommended by the State.

Judge: JOHN H. PEAY,  Judge

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

STATE OF TENNESSEE, v. LEONARD A. FOX,  

Court: TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

James V. Ball               Charles W. Burson
Attorney at Law             Attorney General & Reporter 
217 Exchange Avenue
Memphis, TN 38105           John R. Collier
                            Assistant Attorney General
Joseph S. Ozment            Financial Division
Attorney at Law             500 Charlotte Avenue
                            Nashville, TN 37243-0496
                            
                            John W. Pierotti
                            District Attorney General

                            Rhea Clift
                            Asst. Dist. Attorney General
                            201 Poplar Avenue, Third Floor
                            Memphis, TN 38103
                  
First Paragraph:

The appellant, Leonard A. Fox, was convicted of simple
assault and reckless endangerment.  He was sentenced to 11
months 29 days for assault and three years for reckless
endangerment.  His sentences were ordered to run
concurrently.  On appeal, he argues:  (1)  the evidence was
insufficient to sustain a conviction for assault, and (2) 
the evidence was insufficient to sustain a conviction for
reckless endangerment.  The state concedes his first issue. 
As to the appellant's remaining issue, we find the evidence
insufficient to sustain a conviction for reckless
endangerment.  We vacate and dismiss.

Judge: PAUL G. SUMMERS, Judge

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

STATE OF TENNESSEE, v. RAY EDWARD HENSLEY,

Court:TCCA

For Appellant:                  For Appellee:
Thomas E. Cowan                 Charles W. Burson
Cowan and Landstreet, P.C.      Attorney General & Reporter
Colony Square
111 South Main Street           Hunt S. Brown
Elizabethton, TN  37643         Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN  37243-0493

                                Joe C. Crumley, Jr.
                                Asst. District AG
                                First Judicial District
                                P.O. Box 38
                                Jonesborough, TN  37659
                  
First Paragraph:

The defendant, Ray Hensley, was convicted of DUI (third
offense), driving on a revoked license, and unlawful
possession of a weapon.  The trial court imposed consecutive
sentences of 11 months and 29 days (mandatory 150 days in
jail), six months (mandatory 20 days in jail), and thirty
days (mandatory 10 days in jail) respectively.  On appeal,
the defendant challenges the sufficiency of the evidence on
each offense.

Judge: GARY R. WADE, JUDGE

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

STATE OF TENNESSEE, v. ANTHONY B. HESTER,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:


THOMAS A. STOREY            CHARLES W. BURSON
211 Printers Alley          Attorney General & Reporter
Nashville, TN 
                            KAREN M. YACUZZO
                            Asst. Attorney General
                            450 James Robertson Pkwy.                               
                            Nashville, TN  37243-0493
                
                            VICTOR S. JOHNSON, III
                            District Attorney General

                            ROGER MOORE
                            Asst. District Attorney General
                            222 2nd Ave. N.         
                            Washington Square, Suite 500
                            Nashville, TN   37201   
                   
First Paragraph:

The defendant, a pawnbroker, was indicted for, among other
things, knowingly failing to obtain the local address of a
pawnor in violation of T.C.A.  45-6 213 (1993).  The
defendant pled nolo contendere to this charge.

Judge: JOHN H. PEAY, Judge

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

STATE OF TENNESSEE, v. JEROME DAJUAN HILL,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Gerald L. Gulley, Jr.       Charles W. Burson
P.O. Box 1708               Attorney General & Reporter 
Knoxville, TN   
   (On Appeal)              Darian B. Taylor
                            Assistant Attorney General
Laurie  Andrijeski          Criminal Justice Division
4900 Jonquil Lane           450 James Robertson Parkway
Knoxville, TN   37909       Nashville, TN 37243-0493

                            Randall E. Nichols
                            District Attorney General

                            Fred Bright     
                            Asst. Dist. Attorney General
                            City-County Building          
                            Knoxville, TN   37902

First Paragraph:

The appellant, Jerome Dajuan Hill, pled guilty to three
counts of aggravated robbery.  Following a hearing, the
appellant received an eighteen year sentence in each count
as a Range II offender.  The sentences in counts one and two
were ordered to run consecutively with the third sentence
running concurrently with the second.  The appellant appeals
this effective thirty-six year sentence claiming: (1) that
the trial court improperly imposed consecutive sentences and
(2) that the trial court improperly enhanced the sentence
within the sentencing range.  We affirm the sentences
imposed by the trial court.

Judge: PAUL G. SUMMERS, Judge

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

STATE OF TENNESSEE, v. WOODROW FREDERICK JACKSON,               

Court:TCCA

For the Appellant:      For the Appellee:

Vicki H. Hoover         Charles W. Burson
Ainley & Hoover         Attorney General and Reporter
123 North Poplar St.    
Paris, TN 38242         Hunt S. Brown
                        Assistant Attorney General                          
                        Criminal Justice Division
                        450 James Robertson Parkway
                        Nashville, TN 37243-0493                
                        
                        Robert "Gus" Radford
                        District Attorney General

                        Vicki Snyder
                        Asst. District Attorney General
                        P. O. Box 686
                        Huntingdon, TN 38344
            
First Paragraph:

The appellant, Woodrow Frederick Jackson, was convicted of
one count of rape and one count of aggravated kidnapping
following a jury trial in the  Circuit Court of Henry
County.  The trial court sentenced the appellant as a Range
II offender to seventeen years incarceration for the rape
conviction and twenty years incarceration for the aggravated
kidnapping conviction.  The court ordered that the sentences
be served concurrently.  In this appeal as of right, the
appellant raises six issues for our review:
(1) Whether the trial court properly overruled the
appellants challenge to the racial composition of the jury;
(2) Whether the verdict was contrary to the weight of the
evidence presented;
(3) Whether the sentence imposed by the trial court was
harsh, unfair, prejudicial and much greater than the normal
sentence in like cases;
(4) Whether the trial court erred by finding the appellant
to be a Range II offender;
(5) Whether the trial court erred by referring to the knife
allegedly used in the commission of the crime as enhancement
for sentencing when the verdict was for rape and not
aggravated rape; and
(6) Whether the trial court erred by denying the appellant
probation.

Judge: David G. Hayes Judge

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

JERRY L. JOHNS, v. JAMES BOWLEN, Warden,    

Court:TCCA

For the Appellant:          For the Appellee:

Philip A. Condra            Charles W. Burson
District Public Defender    Attorney General and Reporter
    
Frances W. Pryor, Jr.       Amy L. Tarkington
Asst. Public Defender       Assistant Attorney General
P. O. Box 220               Criminal Justice Division
Jasper, TN  37347           450 James Robertson Parkway
                            Nashville, TN 37243-0493                
                        
                            James Michael Taylor
                            District Attorney General
                            First American Bank Building
                            265 3rd Ave., Suite 300
                            Dayton, TN  37321

First Paragraph:

The appellant, Jerry L. Johns, appeals from the order of the
Circuit Court of Bledsoe County dismissing his petition for
writ of habeas corpus. The appellant is currently serving an
effective sentence of seventy-three years pursuant to 1987
Knox County convictions for aggravated kidnapping, assault
with intent to commit first degree murder, armed robbery,
and reckless driving.  He is incarcerated at the Bledsoe
County facility of the Tennessee Department of Correction. 
The appellant contends that his convictions are void,
because the State lacked jurisdiction to try him for the
offenses committed in Knox County.

Judge: David G. Hayes Judge

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

STATE OF TENNESSEE, v. BETTY LEVANDOWSKI,

Court:TCCA

For the Appellant:      For the Appellee:

J. D. Hickman           Charles W. Burson
Attorney at Law         Attorney General and Reporter
830 Liberty Drive   
Kingsport, TN  37663    Hunt S. Brown
                        Assistant Attorney General                          
                        Criminal Justice Division
                        450 James Robertson Parkway
                        Nashville, TN 37243-0493                
                        
                        H. Greeley Wells, Jr.
                        District Attorney General

                        Nancy Harr and Barry Staubus
                        Asst. District Attorneys General
                        Blountville, TN  37617
                       
First Paragraph:

The appellant, Betty Levandowski, appeals from her jury
convictions for the offenses of aggravated child abuse, a
class B felony, and making a false report to a law
enforcement officer, a class A misdemeanor.  In this appeal,
the appellant raises two issues for our review.  First, the
appellant argues that the evidence was insufficient for the
jury to find her guilty of aggravated child abuse.  Second,
the appellant contends that Tenn. Code Ann. 39-16-502(a)(1)
(1991), the statutory provision setting forth the offense of
false reporting to a law enforcement officer, is void
because it is unconstitutionally overbroad and vague.

Judge: David G. Hayes Judge

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

STATE OF TENNESSEE, v. JAMES EDWARD McKNIGHT,   

Court:TCCA

For the Appellant:          For the Appellee:

John Bumpus                 Charles W. Burson
Attorney at Law             Attorney General and Reporter
201 West Main Street    
Suite 204                   Charlotte H. Rappuhn
Murfreesboro, TN  37130     Assistant Attorney General                          
                            Criminal Justice Division
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493                
                        
                            William Whitesell
                            District Attorney General

                            Paul A. Holcombe, III
                            Asst. District Attorney General
                            Rutherford County Judicial Bldg.
                            Murfreesboro, TN 37130
                         
First Paragraph:

On May 10, 1995, the appellant pled guilty in the Rutherford
County Circuit Court to theft of property under $500.00, a
class A misdemeanor.  On June 12, 1995, the trial court
sentenced the appellant to 11 months and 29 days confinement
in the Rutherford County Workhouse.  The trial court set the
percentage of the sentence to be served at seventy-five
percent.  The appellant now presents two issues for our
review.  First, he contends that a release eligibility
percentage of seventy-five percent is excessive.  Second, he
contends that the trial court improperly ordered that his
sentence in the instant case be served consecutively to two
unserved sentences previously imposed pursuant to
misdemeanor convictions for possession of cocaine and drug
paraphernalia.

Judge: David G. Hayes Judge

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

STATE OF TENNESSEE, v. DAVID T. PANN,   

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Edwin C. Lenow              Charles W. Burson
100 North Main Building     Attorney General and Reporter
No. 2325                    450 James Robertson Parkway
Memphis, Tennessee 38103    Nashville, Tennessee 37243-0493

                            Robin L. Harris
                            Assistant Atty. Gen. & Reporter
                            450 James Robertson Parkway
                            Nashville, Tennessee 37243-0493

                            John W. Pierotti
                            District Attorney General

                            Kevin R. Rardin
                            Assistant District Attorney General
                            201 Poplar Avenue
                            Third Floor
                            Memphis, Tennessee 38103
                            
First Paragraph:

The appellant, David T. Pann, appeals as of right from the
judgment of the Shelby County Criminal Court ordering him to
serve his three (3) year sentence for vehicular homicide in
the Shelby County Correctional Center. The sole issue
presented in this appeal is whether the trial court erred
when it refused to order an alternative sentence.

Judge: William M. Barker, Judge

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

STATE OF TENNESSEE  v. EDWINA PASCHAL,  

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

William L. Johnson          Charles W. Burson
Attorney at Law             Attorney General 
Suite 1150
50 North Front Street       George Linebaugh
Memphis, TN 38103           Counsel for the State
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            John W. Pierotti
                            District Attorney General

                            David C. Henry
                            Assistant District Attorney General
                            Memphis, TN 38103
                        
First Paragraph:

Pursuant to her plea of guilty of the offense of theft of
property valued at under $10,000.00, the appellant was
sentenced to serve two years in the Shelby County
Correctional Center.  Her petition for judicial diversion
was granted and her sentence was deferred until March 13,
1997.  However, the State filed a petition to revoke the
suspended sentence which was granted after the trial judge
heard testimony from the probation officer and the
appellant.

Judge: JERRY SCOTT, SPECIAL JUDGE

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

STATE OF TENNESSEE, v. STEPHEN TRACY SHELINE,

Court:TCCA

FOR THE APPELLANT:      FOR THE APPELLEE:

DONALD MART LASLEY      CHARLES W. BURSON
8857 Dayton Pike        Attorney General and Reporter
Soddy-Daisy, TN 37379
                        DARIAN B. TAYLOR
                        Assistant Attorney General
                        450 James Robertson Parkway
                        Nashville, TN 37243-0493

                        GARY D. GERBITZ
                        District Attorney General

                        REBECCA STERN
                        Assistant District Attorney General
                        City-County Courts Building
                        600 Market Street
                        Chattanooga, TN 37402-1972
                          
First Paragraph:

The Defendant, Stephen Sheline, brings this appeal as of
right from a jury verdict convicting him of rape.  He was
sentenced to eight years of split confinement, with eleven
months and twenty-nine days to be served in the county
workhouse and seven years on supervised probation.  He
appeals this conviction.  We reverse the judgment of the
trial court.

Judge: DAVID H. WELLES, JUDGE

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

DARRELL WAYNE TAYLOR, v. STATE OF TENNESSEE,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Darrell Wayne Taylor, Pro Se    Charles W. Burson
R.M.S.I., Unit-II, 106-C        Attorney General/Reporter
Nashville, TN
                                Rebecca L. Gundt
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN   37243


                                John W. Pierotti
                                District Attorney General

                                Robert Carter
                                Assistant District Attorney General
                                201 Poplar Avenue, Suite 301
                                Memphis, TN  38103-1947
                        
First Paragraph:

The appellant is an inmate in the State Penitentiary under
sentence of death for the offense of murder in the
perpetration of a robbery.  On appeal to the Tennessee
Supreme Court his conviction was affirmed.  State v. Taylor,
774 S.W.2d 163 (Tenn. 1989).  Certiorari was denied by the
United States Supreme Court.  Taylor v. Tennessee, 493 U.S.
945, 110 S. Ct. 355, 107 L.Ed. 2d 342 (1989).

Judge: JERRY SCOTT, SPECIAL JUDGE

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

STATE OF TENNESSEE,v. ROBERT L. THOMPSON,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:


JOSEPH L. HORNICK           CHARLES W. BURSON
304 E. College St.          Attorney General & Reporter
Dickson, TN   37055
                            MICHELLE L. LEHMANN
                            Counsel for the State
                            450 James Robertson Pkwy.                               
                            Nashville, TN  37243-0493
                
                            DAN M. ALSOBROOKS
                            District Attorney General

                            ROBERT WILSON
                            Asst. District Attorney General
                            P.O. Box 580
                            Charlotte, TN   37036
                          
First Paragraph:

The defendant was indicted for and pled guilty to the sale
of 5.2 grams of cocaine and possession of marijuana for
resale.  Under a plea agreement, he was sentenced as a Range
I, standard offender, to eight years on the cocaine charge,
a Class B felony, and two years on the marijuana charge, to
run concurrently.  The issue of whether the defendant would
receive a suspended or some other form of alternative
sentence was reserved for a hearing.

Judge: JOHN H. PEAY, Judge

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

STATE OF TENNESSEE, v. CHAD EDWARD WYATT,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Guy T. Wilkinson            Charles W. Burson
District Public Defender    Attorney General & Reporter 

W. Jeffery Fagan            Michael J. Fahey, II
Asst. Dist. PD              Assistant Attorney General
P.O. Box 663                Criminal Justice Division
Camden, TN 38320            450 James Robertson Parkway
Nashville, TN 37243-0493

                            Robert "Gus" Radford
                            District Attorney General

                            Vicki L. Snyder
                            Asst. Dist. Attorney General
                            P.O. Box 686
                            Huntingdon, TN 38344 

First Paragraph:

The appellant, Chad Edward Wyatt, pled guilty to two counts
of theft of property and one count of criminal
responsibility.  He received an effective sentence of two
(2) years incarceration with all but the first ninety (90)
days suspended.  On appeal, he contends that the trial court
should have either placed him on community corrections or
suspended his entire sentence.  We affirm the trial
court.

Judge: PAUL G. SUMMERS, Judge

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

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