TBALink Opinion-Flash

October 10, 1996 -- Volume #2 -- Number #87

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

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ZELLA BALENTINE, v. SIMON WHITE 
IN RE: PATERNITY OF ASHLEY  ARRON BALENTINE, a minor,

Court:TCA

T. VERNER SMITH, Jackson, Attorney for plaintiff.

W. LEE LACKEY, Savannah, Attorney for defendant.
                       
Judge: TOMLIN

First Paragraph:

Zella Balentine (plaintiff) filed a petition in the Juvenile Court
of Hardin County seeking to have that court declare Simon White
(defendant) to be the natural father of the parties minor child,
Ashley Balentine.  The Hardin County General Sessions Court, in its
role as Juvenile Court, found defendant to be the father of the child
and awarded plaintiff retroactive child support dating back to
November 1, 1992.  

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

NANCY BUCHANAN, MOTHER, ET AL., NEXT OF KIN OF CORWENDEL D. PERKINS,
DECEASED
v.
HARDEMAN COUNTY, TN and HARDEMAN COUNTY HIGHWAY DEPARTMENT,

Court:TCA

Marcus M. Reaves
Jackson, TN, and
Gulfport, Mississippi
Attorney s for Plaintiffs/Appellants
            
James I. Pentecost                
Jackson, TN
Attorney for Defendants/Appellees

Judge: HOLLY KIRBY LILLARD

First Paragraph:

This matter appears appropriate for consideration pursuant to Rule
10(b) of the Rules of the Court of Appeals of TN. The
plaintiffs/appellants in this cause, Nancy Buchanan, et al.,
("Buchanan") appeal the trial court's grant of summary judgment to
defendants/appellees, Hardeman County, TN, et al., ("Hardeman
County").  After a serious automobile accident on Minnie Hill Road in
Hardeman County, Buchanan filed suit against Hardeman County for
wrongful death, alleging that the road was not properly maintained by
the County.    

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

GRACE THRU FAITH,               
v.
TONY L. CALDWELL, and TONY L. CALDWELL and JOANN P.CALDWELL TRUST,      
v.
EDWARD IRWIN and REBECCA IRWIN,             

Court:TCA

For the Petitioner/Intervening      For the Respondent
Petitioners/ Defendants             /Intervening Plaintiffs/Appellees
/Appellants                         Harold T. Brundige
H. Max Speight                      Martin, TN
Jeffrey W. Parham                   
Martin, TN 
                          
Judge: HOLLY KIRBY LILLARD

First Paragraph:

This is a case involving a trustee's improper accounting procedures
and misuse of funds regarding a trust set up to receive Social
Security Insurance payments.  At issue is whether TN state
courts have subject matter jurisdiction to hear a dispute between a
beneficiary and his representative payee over alleged misuse of Social
Security benefits.  The trial court found it had jurisdiction. 

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

MELANIE MILLER, individually and as Next Friend for ASHLEY MILLER
LUNA, a minor, and Next Friend of GREGORY LUNA, deceased, 
v.
GARY D. NIBLACK, M.D., LABORATORY INVESTMENTS, INC., and REN
LABORATORIES, INC. d/b/a REN HISTOCOMPATIBILITY LABORATORY, A Joint
Venture, and JOHN DOE,

Court:TCA

Lynda F. Teems, Memphis, TN
Attorney for Plaintiffs/Appellants.

J. Cecil McWhirter, Memphis, TN
Sally F. Barron, Memphis, TN
Attorneys for Defendant/Appellee, Laboratory Investments, Inc.

James E. Moffitt,
Reid D. Leitner,
LEITNER, WARNER, MOFFITT, WILLIAMS, DOOLEY, CARPENTER 
& NAPOLITAN, Nashville, TN
Attorneys for Defendnat/Appellee, Ren Laboratories, Inc.
                        
Judge: FARMER

First Paragraph:

This is an action for negligence in the conducting of a paternity
test.  The trial court entered summary judgment in favor of the
appellees, Gary D. Niblack, M.D., Laboratory Investments, Inc. and Ren
Laboratories, Inc. d/b/a Ren Histocompatibility Laboratory, a joint
venture, and John Doe.  The appellants, Melanie Miller, individually
and as next friend for Ashley Miller Luna, a minor,  and next friend
of Gregory Luna, deceased, have appealed presenting the single issue
of whether the trial court erred in doing so.  

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

HOWARD A. WOODS,    
v.
MUTUAL OF OMAHA, And CNA INSURANCE COMPANY, and EASTWOOD HOSPITAL,  

Court:TCA

Howard A. Woods, Pro Se
Plaintiff/Appellant.

Philip E. Mischke,
WYATT, TARRANT & COMBS, Memphis, TN
Attorney for Defendant/Appellee, Mutual of Omaha.
                       
Judge: FARMER

First Paragraph:

This case concerns the validity of a "Compromise Settlement Release"
executed by the appellant, Howard A. Woods (Woods), in favor of the
appellee, Mutual of Omaha (Omaha).  Woods challenges its validity on
the ground of mental incapacity.  The trial court entered summary
judgment in favor of Omaha and Woods has appealed.  

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

BILLY RAY ALBERT, v. STATE OF TN,

Court:TCCA

FOR THE APPELLANT:           FOR THE APPELLEE:

TERRY J. CANADY             CHARLES W. BURSON
211 Printer's Alley Bldg.   Attorney General & Reporter
Nashville, TN   37201
                            EUGENE J. HONEA
                            Asst. Attorney General
                  
                            VICTOR S. JOHNSON, III
                            District Attorney General

                            PAUL DEWITT
                            Asst. District Attorney General
                       
Judge: JOHN H. PEAY

First Paragraph:

The petitioner was convicted by a jury of second-degree murder and
armed robbery.  He was sentenced to forty years for the murder and
twenty-five years for the robbery, consecutive, for an effective
sentence of sixty-five years.  On direct appeal, his convictions were
affirmed and his sentence on the robbery conviction reduced to twenty
years.

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

EDWARD WAYNE BERGDORF v. STATE OF TN 

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

William Joseph Butler           Charles W. Burson
P.O. Box 280                    Attorney General and Reporter
Lafayette, TN 37083
                                Christina S. Shevalier
                                Assistant Attorney General
  
                                Tom. P. Thompson, Jr.
                                District Attorney
                                
                                David Durham
                                Assistant District Attorney
                      
Judge: William M. Barker

First Paragraph:

The appellant, Edward Wayne Bergdorf, appeals as of right the
dismissal of his consolidated petitions which sought both
post-conviction relief and a writ of habeas corpus.  For the reasons
contained herein, we conclude that the trial court properly dismissed
the appellant's petition for a writ of habeas corpus, but erred in
dismissing his petition for post-conviction relief.

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

DAVID BROOKS, v. STATE OF TN,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Edward T. Landis                Charles W. Burson
Attorney at Law                 Attorney General & Reporter

                                Michael J. Fahey, II
                                Assistant Attorney General
                    
                                Gary D. Gerbitz
                                District Attorney General
 
                                David W. Denny
                                Asst. District Attorney General
 
Judge: Joe B. Jones

First Paragraph:

The appellant, David Brooks, appeals as of right from a judgment of
the trial court dismissing his suit for post-conviction relief
following an evidentiary hearing.  The trial court concluded the
appellant had been afforded the effective assistance of counsel
contemplated by the Sixth Amendment to the United States Constitution
and Article I, S 9 of the TN Constitution.  In this Court, the
appellant contends the evidence adduced at the evidentiary hearing
preponderates against the conclusion reached by the trial court
because the evidence established trial counsel were ineffective
because they failed to (a) properly research important issues relevant
to his defense, (b) introduce the victim's prior violent conduct to
establish the victim was the aggressor in the confrontation, and (c)
introduce two tape recordings of the appellant made shortly after his
arrest to establish the degree of his intoxication at the time he
committed the offense.  

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

BILLY NOBLE FORREST AKA BILLY SALEEM EL-AMIN,       
v.
JOHN REES, WARDEN and STATE OF TN,       

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

J. Douglas Dicus                Charles W. Burson
Attorney at Law                 Attorney General

William Bright                  Christina S. Shevalier
Assistant Public Defender       Assistant Attorney General
                                                                
                                Mike Bottoms                                         
                                District Attorney General
                 
                                James G. White, II
                                Assistant District Attorney General
                      
Judge: JERRY SCOTT

First Paragraph:

The Appellant filed a pro se petition for the writ of habeas corpus in
the Circuit Court of Wayne County.  Subsequently, counsel was
appointed to represent him, and an amended petition was filed.

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

STATE OF TN, v. TAYLOR J. HARRISON,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

COMER L. DONNELL            CHARLES W. BURSON
District Public Defender    Attorney General and Reporter

BOBBY JAMES ELLIS           MARY ANNE QUEEN
Assistant Public Defender   Legal Assistant
Gainesboro, TN       
                            MICHAEL J. FAHEY, II
                            Assistant Attorney General
 
                            TOM P. THOMPSON, JR.
                            District Attorney General

                            JOHN D. WOOTTEN, JR.
                            Assistant District Attorney General
                         
Judge: DAVID H. WELLES,

First Paragraph:

The Defendant brings a delayed appeal from his conviction from a Macon
County jury verdict for Aggravated Assault.  The trial court sentenced
him to five years imprisonment as a Range I standard offender. The
Defendant appeals his conviction and his sentence.  

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

SCOTTIE DEWAYNE LIGHT,  v. STATE OF TN,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

GREGORY D. SMITH                CHARLES W. BURSON
Clarksville, TN                 Attorney General and Reporter
 
                                KAREN M. YACUZZO
                                Assistant Attorney General
 
                                VICTOR S. JOHNSON
                                District Attorney General

                                MARY HAUSMAN
                                Assistant District Attorney General
                        
Judge: DAVID H. WELLES

First Paragraph:

This case is here by appeal as of right pursuant to Rule 3 of the
TN Rules of Appellate Procedure.  In the original prosecution,
the petitioner was convicted by jury of first degree murder.  His
conviction was upheld by this Court on direct appeal.  See State v.
Scottie Dewayne Light and Johnny Ward, C.C.A. No. 01C01-9110-CR-00297,
Davidson County (Tenn. Crim. App., Nashville, filed Jan. 21, 1993). 
The petitioner sought post-conviction relief, alleging that he was
denied effective assistance of counsel at trial.  After conducting an
evidentiary hearing, the trial court denied the petition.  I

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

STATE OF TN, v. GROVER LIVESAY,

Court:TCCA

FOR THE APPELLANT:                  FOR THE APPELLEE:

R. RUSSELL MATTOCKS                 CHARLES W. BURSON
Office of the Public Defender       Attorney General and Reporter
Morristown, TN  
                                    HUNT S. BROWN
                                    450 James Robertson Parkway
                                    Nashville, TN  37243

                                    C. BERKELEY BELL
                                    District Attorney General
                        
                                    JOHN DUGGER
                                    Assistant District Attorney
                        
Judge: JERRY L. SMITH

First Paragraph:

A Hamblen County Criminal Court jury found Appellant Grover C. Livesay
guilty of rape of a child.  Following a sentencing hearing, the trial
court imposed a sentence of twenty-five years in the TN
Department of Correction.  In this appeal, Appellant presents the
following issues for review:  (1) whether the evidence presented at
trial is legally sufficient to sustain a conviction for second degree
murder; (2) whether the trial court erred in failing to grant a
mistrial following testimony regarding a request for legal counsel;
(3) whether the trial court erred in allowing the State to discuss the
issue of flight during closing argument; and (4) whether the trial
court erred in determining the length of his sentence.

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

STATE OF TN, v. ONY WAYNE MCELHINEY,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

CAREY J. THOMPSON           CHARLES W. BURSON
Assistant Public Defender   Attorney General and Reporter
P.O. Box 160
Charlotte, TN 37036         CYRIL V. FRASER
   (ON APPEAL)              Assistant Attorney General
                            
Dan Cook                    
102 North Main Street
Ashland City, TN 37016      DAN ALSOBROOKS
   (AT TRIAL)               District Attorney General
                        
                            JAMES W. KIRBY
                            Assistant District Attorney General
                         
Judge: DAVID H. WELLES

First Paragraph:

This is an appeal as of right pursuant to Rule 3 of the TN
Rules of Appellate Procedure.  Upon his plea of nolo contendere, the
Defendant was convicted of four counts of aggravated sexual battery. 
The trial judge sentenced him to four concurrent twelve-year sentences
to be served in the TN Department of Correction.  On appeal,
the Defendant argues that his sentences are excessive. 

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

STATE OF TN, v.LAVAUGHN DOUGLAS SCOTT and HOWARD C. EVANS,           

Court:TCCA

FOR THE APPELLANTS:        FOR THE APPELLEE:


T. ARTHUR JENKINS           CHARLES W. BURSON
P. O. Box 126               Attorney General & Reporter
Manchester, TN 37355
                            KAREN M. YACUZZO
                            Asst. Attorney General
                
                            WILLIAM WHITESELL
                            District Attorney General
  
Judge: JOHN H. PEAY

First Paragraph:

Both defendants were convicted at a jury trial of simple possession of
cocaine, simple possession of marijuana, and possession of drug
paraphernalia.  The defendants were found not guilty on an additional
charge of criminal trespass.  For these misdemeanor convictions, each
defendant received effective sentences of eleven months and
twenty-nine days in the local workhouse.  The defendant Scott's
sentence was ordered to be served consecutively to a previous
conviction in Williamson County.  The sentence of the defendant Evans
was fully suspended, and he was placed on probation.  

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

BOBBY JOE SEAY, v. STATE OF TN,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Terry J. Canady                 Charles W. Burson
Attorney at Law Attorney        General & Reporter 

                                M. Allison Thompson   
                                Assistant Attorney General
                                
 
                                Victor S. (Torry) Johnson III
                                District Attorney General

                                Jon P. Seaborg
                                Asst. Dist. Attorney General

Judge: PAUL G. SUMMER

First Paragraph:

In 1992, the appellant, Bobby J. Seay, was convicted of aggravated
robbery and received an eight-year sentence.  His conviction was
affirmed by this Court.  In 1994, he petitioned for post-conviction
relief alleging ineffective assistance of counsel.  In 1995, following
a hearing, his petition was denied.

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

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