TBALink Opinion-Flash

July 1, 1996 -- Volume #2 -- Number #59

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
03-New Opinons From TSC-Workers Comp Panel
06-New Opinons From TCA
07-New Opinons From TCCA

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TBALink Chief Editor

GENE V. AABY, v. JUDY E. AABY STRANGE

Court:TSC

ATTORNEYS: N/A                          

First Paragraph:

Order on Petition To Rehear
The father, Gene V. Aaby, has filed a petition to rehear in
this case, raising several issues.  Of those issues, only
the one pertaining to custody merits further comment by this
Court.

Judge: DROWOTA, J.

URL:http://www.tba.org/tba_files/TSC/AABY.RHR.WP6
Opinion-Flash

STATE OF TENNESSEE, v. CHARLES WILLIAM BARTRAM, 

Court:TSC

For Appellant:                  For Appellee:

Charles Burson                  Michael R. Jones
Attorney General & Reporter     Public Defender
                                Clarksville, Tennessee
Michael E. Moore                
Deputy Attorney General         
Nashville, Tennessee            

Dent Morris
Assistant District Attorney
Springfield, Tennessee                    

First Paragraph:

We granted this appeal to re-examine this Court's adoption
of the so- called "angry wife" exception to the rule that a
warrantless search and seizure is presumed unreasonable
unless there is a valid consent to the search.  Fifty years
ago, in Kelley v. State, this Court viewed the marital
relationship as an agency relationship between the husband
and wife and, therefore, reasoned that the consent of the
wife would bind the husband unless the consenting wife's
actions were hostile and adverse to her husband's interest.

Judge: ANDERSON, J.

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

STATE OF TENNESSEE  v. WILLIAM ALVIN CLEMENTS, JR.

Court:TSC

For Appellee:                   For Appellant:

Charles W. Burson               Dale M. Quillen
Attorney General & Reporter     Michael J. Flanagan
                                Nashville, Tennessee
Kathy Morante
Deputy Attorney General
Nashville, Tennessee

Joseph D. Baugh 
District Attorney General

Ronald L. Davis
Assistant District Attorney
Franklin, Tennessee 
                        
First Paragraph:

This case presents the following issue for our
determination: whether a cash bond, deposited by the parents
of a criminal defendant to ensure the defendants appearance
in court, may be attached to cover fines and costs incurred
by the defendant in connection with the prosecution.  We
hold that the bond may not be so attached, and therefore
reverse the judgment of the Court of Criminal Appeals.

Judge: DROWOTA, J.

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

RESOLUTION TRUST CORPORATION, v. ADOLPH J. BLOCK, et al.,          

Court:TSC

For the Plaintiff-Respondent:   For the Defendants-Petitioners:

Ronald W. Woods                 Bernard E. Bernstein
N. R. Coleman, Jr.              J. Thomas Jones
Milligan & Coleman              Bernstein, Stair & McAdams
Greeneville, TN                 Knoxville, TN

Winthrop A. Short, Jr.          Joseph F. Rosenberg
David J. Pierce                 Dale, Jackson & Rosenberg
Megan E. Burns                  Nashville, TN
Jonathan L. Thorton
Kaufman & Canoles, P.C.         David W. Blankenship
                                Kingsport, TN
John P. Parker
F.D.I.C.                        Thomas A. Peters
Washington, D.C.                Kingsport, TN
                   
First Paragraph:

The United States District Court for the Eastern District of
Tennessee has certified to this Court, pursuant to Rule 23,
Tennessee Supreme Court Rules, the following question:
Whether under Tennessee law the directors and officers of a
Tennessee corporation would be jointly and severally liable
for the collective actions of the board or proportionately
liable under the doctrine of comparative fault.

Judge: WHITE, J.

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

JESSE S. TIDWELL,  v.STATE OF TENNESSEE,

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
                        Nashville, TN 

                        Daniel W. Cook
                        Assistant District Attorney
                        Charlotte, TN
                   
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).  The
appellant has made the requisite showing of prejudice for
all but the incidents on which the testimony at the original
trial was detailed and specific.

Judge: BIRCH, J.

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

DEBBIE G. FARROW, v. PHILLIPS CONSUMER ELECTRONICS COMPANY,          

Court: TSC (Workers Comp Panel)

James L. Milligan, Jr.              Arthur G. Seymour, Jr.
James L. Milligan, Jr. & Asso.      Robert L. Kahn
Knoxville, Tennessee                Knoxville, 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 employee or
claimant, Farrow, contends the evidence preponderates
against the trial court's finding that her injury did not
arise out of her employment.  The panel concludes that the
judgment should be reversed and the case remanded for an
award of benefits.

Judge: Loser, Judge

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

ANNA LUE McKAMEY,v. RED KAP INDUSTRIES,  

Court: TSC (Workers Comp Panel)

For the Appellant:          For the Appellee:

John D. Agee                Robert R. Ramsey
Cooley, Cooley & Agee       Upchurch, Colvard, York & Ramsey
155 E. Race St.             P.O. Box 3549
P.O. Box 730                Crossville, TN 38557
Kingston, TN 37763
                      
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

Judge: INMAN, Senior Judge

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

BRENDA GAIL WARD, 
v. 
UNITED STATES FIDELITY AND GUARANTY COMPANY,

Court: TSC (Workers Comp Panel)

For Appellant:              For Appellee:

Robert R. Davies            David H. Dunaway
Fansler & Williams          David H. Dunaway & Associates
Knoxville, Tennessee        LaFollette, 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 contends the evidence preponderates against the
award of permanent disability benefits.  The panel concludes
the judgment should be reversed and the cased dismissed. 
The only issue litigated at trial was the extent of the
claimant's permanent disability, if any.

Judge: Loser, Judge

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

JAMES M. BLANKENSHIP,
v. 
DONAL CAMPBELL, Commissioner,Department of Correction, et al,

Court:TCA

JAMES M. BLANKENSHIP, Pro Se
S.T.S.R.C.F.
Route #4, P. O. Box 600
Pikeville, Tennessee  37367

CHARLES W. BURSON
Attorney General and Reporter

PATRICIA C. KUSSMANN
Assistant Attorney General
Civil Rights and Claims Division
404 James Robertson Parkway, Suite 2000
Nashville, Tennessee  37243
ATTORNEYS FOR RESPONDENTS/APPELLEES
                         
First Paragraph:

This is an appeal by petitioner, James M. Blankenship, from
the judgment of the trial court dismissing his petition for
declaratory judgment filed pursuant to Tennessee Code
Annotated section 4-5-224.

Judge: SAMUEL L. LEWIS, JUDGE

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

MARGARET DANMOLE,   v. CHARLES L. WRIGHT,

Court:TCA

NEWTON S. HOLIDAY, III
Petway, Blackshear & Cain
208 Third Avenue North
Fifth Floor
Nashville, Tennessee  37201
ATTORNEY FOR PLAINTIFF/APPELLEE

ALAN M. SOWELL
Gracey, Ruth, Howard, Tate & Sowell
150 Second Avenue North
Suite 201
Nashville, Tennessee  37201
ATTORNEY FOR DEFENDANT/APPELLANT
                         
First Paragraph:

Defendant, Charles L. Wright, has appealed from the judgment
of the trial court entered on the jury's verdict for
plaintiff, Margaret Danmole.  The jury awarded plaintiff
$17,000.00 for her injuries and damages sustained as the
result of an automobile accident.

Judge: SAMUEL L. LEWIS, JUDGE

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

BILLY L. GORDON, v. MICHAEL C. GREENE, Commissioner

Court:TCA

GERALD C. RUSSELL
125 E. Broadway Avenue
Maryville, Tennessee  37804
ATTORNEY FOR PETITIONER/APPELLANT

CHARLES W. BURSON
Attorney General and Reporter

REBECCA LYFORD
450 James Robertson Parkway
Nashville, Tennessee  37243-0494
ATTORNEYS FOR RESPONDENT/APPELLEE
                       
First Paragraph:

Petitioner, Billy Gordon, appeals the chancellor's judgment
dismissing his petition for review filed pursuant to the
Uniform Administrative Procedures Act.  Petitioner sought
review of a forfeiture order entered by the Commissioner of
the Tennessee Department of Safety ("Commissioner").  The
order forfeited a 1989 Corvette automobile seized from Beate
Kittel-Glass under the Tennessee Drug Control Act ("TDCA"). 
The pertinent facts are as follows.

Judge: SAMUEL L. LEWIS, JUDGE

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

DEBRA LAMBERTH, 
v.
S? PLUMBING COMPANY, INC., FRED LAMBERTH, JR., ANITA
WOODALL, and MICHAEL LAMBERTH,

Court:TCA

F. DULIN KELLY
CLINTON L. KELLY
629 East Main Street
Hendersonville, Tennessee 37075
Attorney for Plaintiff/Appellant

JOE M. HAYNES
DAVID M. POLLARD, JR.
140 North Main Street
Goodlettsville, Tennessee 37070
Attorneys for Defendants/Appellees
Fred Lamberth, Jr. and Anita Woodall

PHYLLIS D. MORRISS
507 West Court Square
Springfield, Tennessee 37172
Attorney and Guardian Ad Litem for Defendant/Appellee
Michael Lamberth
                         
First Paragraph:

The widow of the sole shareholder of an incorporated
business sought a declaration that she owned the business as
a surviving tenant by the entireties, or that she and her
husband had been partners in the business.  The Chancery
Court of Sumner County denied any relief.  We affirm.

Judge: BEN H. CANTRELL, JUDGE

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

MARVIN ANTHONY MATHEWS, v. RUSSELL X. THOMPSON,

Court:TCA

MARVIN ANTHONY MATHEWS, Pro Se
Cold Creek Correctional Facility
P. O. Box 1000
Henning, Tennessee  38041-1000

WINSTON S. EVANS
PHILLIP B. JONES
Evans, Jones & Reynolds
1810 First Union Tower
150 Fourth Avenue North
Nashville, Tennessee  37219
ATTORNEYS FOR DEFENDANT/APPELLEE
                          
First Paragraph:

This is an appeal by plaintiff/appellant, Marvin Anthony
Mathews, from the chancery court's order finding that the
statute of limitations had run in Plaintiff's legal
malpractice action.

Judge: SAMUEL L. LEWIS, JUDGE

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

MARY TERESA WILLS RYAN v. KEVIN B. RYAN,

Court:TCA

M. ALLEN EHMLING
McClellan, Powers, Ehmling & Dix
116 Public Square
Gallatin, Tennessee  37066
ATTORNEY FOR PLAINTIFF/APPELLEE

NATHANIEL H. KOENIG
150 Second Avenue North
Suite 300
Nashville, Tennessee  37201
ATTORNEY FOR DEFENDANT/APPELLANT
                          
First Paragraph:

The defendant, Kevin B. Ryan ("Father"), has appealed from
the trial court's order changing custody of the parties'
minor child, Sabrina D. Ryan, from joint custody to the
primary custody of the plaintiff, Mary Teresa Wills Ryan
("Mother").

Judge: SAMUEL L. LEWIS, JUDGE

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

JOHNNY C. ABRAMS, v. STATE OF TENNESSEE,    

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

David A. Doyle              Charles W. Burson
District Public Defender    Attorney General & Reporter

                            Clinton J. Morgan
                            Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            Lawrence Ray Whitley
                            District Attorney General
                            113 Main Street, West
                            Gallatin, TN 37066-2803

                            Dee D. Gay
                            Asst. District Attorney General
                            113 Main Street, West
                            Gallatin, TN 37066-2803

First Paragraph:

The appellant, Johnny C. Abrams, appeals as of right from a
judgment of the trial court summarily dismissing his suit
for post-conviction relief.  The trial court found that the 
grounds raised by the appellant were barred by the statute
of limitations.  The appellant contends that the statute of
limitations should not be a bar to his suit because (a) he
has no knowledge of the law, (b) he is indigent and was
unable to obtain counsel to represent him, and (c) he did
not know that his rights had been seriously violated.  The
judgment of the trial court is affirmed.

Judge: Joe B. Jones, Presiding Judge

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

TROY BROADRICK, v. STATE OF TENNESSEE,  

Court:TCCA

For the Appellant:      For the Appellee:

Steven F. Glaser        Charles W. Burson
Asst. Public Defender   Attorney General and Reporter
                        
                        Mary Ann Queen
                        Legal Assistant
                        William David Bridgers
                        Assistant Attorney General                          
                        Criminal Justice Division
                        450 James Robertson Parkway
                        Nashville, TN 37243-0493                
                        
                        Lawrence Ray Whitley        
                        District Attorney General

                        Dee D. Gay
                        Asst. District Attorney General
                        Cordell Hull Building
                        Gallatin, TN  37066
                      

First Paragraph:

The appellant, Troy Broadrick, appeals the trial courts
dismissal of his second petition for post-conviction relief.
 On appeal, the appellant essentially contends that both
trial and appellate counsel were ineffective, thereby
violating the appellants rights under the Sixth and
Fourteenth Amendments to the United States Constitution and
Article I, section 9 of the Tennessee Constitution. 
Moreover, the appellant argues that he was denied a full and
fair hearing of his case, as required by the Fifth and
Fourteenth Amendments of the United States Constitution and
Article I, section 8 of the Tennessee Constitution, by (1)
counsels performance at trial and on direct appeal and (2)
the trial court at his first post-conviction hearing.

Judge: David G. Haynes

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

STATE OF TENNESSEE, v. ROBERT BUTLER,

Court:TCCA

FOR THE APPELLEE:               FOR THE APPELLANT:

Robert W. Ritchie               Charles W. Burson
Wade V. Davies                  Attorney General & Reporter 
Ritchie, Fels & Dillard, P.C.
606 W. Main Street, Suite 300   Darian B. Taylor
P.O. Box 1126                   Assistant Attorney General
Knoxville, TN 37901-1126        Criminal Justice Division
    
                                Randall E. Nichols
                                District Attorney General

                                Robert Jolley
                                Asst. Dist. Attorney General
    
First Paragraph:

Nearly twenty years ago, the appellee was convicted of rape
and sentenced to life imprisonment.  In 1993, he was granted
habeas corpus relief in federal court.  In 1995, a Tennessee
trial court dismissed the appellee's indictment.  The state
appeals and argues that the trial judge abused her
discretion in dismissing the indictment.  We find no abuse
of discretion and affirm.

Judge: PAUL G. SUMMERS,

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

STATE OF TENNESSEE, v. TIM FOX, 

Court:TCCA

For the Appellant:          For the Appellee:

Susanna Laws Thomas         Charles W. Burson
Assistant Public Defender   Attorney General and Reporter
102 Mims Avenue             and
Newport, TN 37821-3614      George Linebaugh
                            Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493 

                            Al Schmutzer, Jr.
                            District Attorney General
                            Sevier County Courthouse
                            Suite 301
                            Sevierville, TN 37862
                       
First Paragraph:

The appellant was convicted by a jury of attempted first
degree murder.   A timely Motion for New Trial was filed and
overruled.  Thereafter, this conviction was appealed as a
matter of right.  Rule 3(b), Tenn. R. App. P.  This appeal
advances two grounds as error by the trial court justifying
a new trial.  First, the appellant contends that the
evidence adduced at trial is insufficient on the issue of
premeditation and deliberation to support a conviction of
attempted first degree murder.  Second, the appellant
contends that the trial judge improperly weighed the
aggravating and mitigating factors in imposing a twenty year
Range I Standard Offender sentence.

Judge: J. S. Daniel Special Judge

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

THOMAS EUGENE GRAHAM,v. STATE OF TENNESSEE, 

Court:TCCA

FOR THE APPELLANT:      FOR THE APPELLEE:

RANDALL L. RUSSELL      CHARLES W. BURSON
# 300, Flatiron Bdg     Attorney General and Reporter
707 Georgia Avenue
Chattanooga, TN 37402   MICHAEL J. FAHEY, II
                        Assistant Attorney General
                        450 James Robertson Parkway
                        Nashville, TN 37243-0495

                        GARY D. GERBITZ
                        District Attorney General

                        REBECCA STERN and
                        BARRY A. STEELMAN
                        Assistant District Attorney General
                        Hamilton County-Chattanooga 
                        Courts Building
                        Chattanooga, TN 37402
                     
First Paragraph:

The Petitioner, Thomas Eugene Graham, brings this appeal as
of right pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure.  The Defendant filed a petition for
post-conviction relief alleging ineffective assistance of
counsel.  After conducting an evidentiary hearing, the trial
court denied relief.  We affirm the judgment of the trial
court.

Judge: DAVID H. WELLES, JUDGE

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

STATE OF TENNESSEE, v. WILLIAM LAYNE MILLER,

Court:TCCA

For Appellant:          For Appellee:
William M. Haywood      Charles W. Burson
Attorney                Attorney General & Reporter
105 First Avenue So.
Lewisburg, TN  37091    Ellen H. Pollack        
                        Assistant Attorney General
                        450 James Robertson Parkway
                        Nashville, TN  37243-0485

                        Michael McCown
                        District Attorney General 
                             
                        Weakley E. Barnard
                        Asst. District Attorney
                        Marshall County Courthouse
                        Lewisburg, TN  37091                       

First Paragraph:

The defendant, William Layne Miller, was convicted of
aggravated burglary.  The trial court imposed a Range III
sentence of twelve years. In this appeal of right, the
defendant presents two issues: (1) whether the trial court
properly admitted evidence of three prior felonies for
impeachment purposes; and (2) whether the trial court
properly classified the defendant as a Range III, persistent
offender.

Judge: GARY R. WADE, JUDGE

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

STATE OF TENNESSEE,         
v.
ANNETTE WHITE, a/k/aANNETTE WATSON, a/k/a ANNETTE MORGAN,           

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:


JOHN P. VALLIANT, JR.       CHARLES W. BURSON
    - and -                 Attorney General & Reporter
PAUL HENSLEY
Sixth Floor, 2 Centre Sq    EUGENE J. HONEA
625 Gay St.                 Asst. Attorney General
Knoxville, TN 37902         450 James Robertson Pkwy.
                            Nashville, TN  37243-0493

                            CHARLES HAWK
                            District Attorney General

                            D. ROGER DELP
                            Asst. District Attorney General
                            P.O. Box 703
                            Kingston, TN 37763
                        
First Paragraph:

The present case involves an appeal of a certified question
of law after the entry of guilty pleas pursuant to Tenn. R.
Crim. P. 37(b)(2)(i).  We find that the defendants issue on
appeal lacks merit, and we therefore affirm the judgment of
the trial court.

Judge: JOHN H. PEAY, Judge

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

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