TBALink Opinion-Flash

October 16, 1996 -- Volume #2 -- Number #89

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

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George Dean
TBALink Chief Editor


DANNY KAYE DOCKERY,         
v.
THE BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF
TENNESSEE

Court:TSC

For Appellant:              For Appellee:

Danny K. Dockery            Laura L. Chastain
Pro Se                      Deputy Chief
Memphis, TN                 Disciplinary Counsel
                            Nashville, TN
                        
Judge: BIRCH

First Paragraph:

Danny Kaye Dockery, Esquire, appeals the judgment of the Chancery
Court of Shelby County suspending him from the practice of law for
specified violations of the Code of Professional Responsibility
committed in connection with his representation of Deborah Dalton. 
After a painstaking examination of the record and a thorough
consideration of the issues presented, we find that the record fully
supports the trial court's judgment except as to the amount of money
Dockery must pay Dalton as a prerequisite for reinstatement.

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

STATE OF TENNESSEE  v. CARL LEE MCLEOD  

STATE OF TENNESSEE  v. JAMES YOUNG

Court:TSC

Attorney for Appellant McLeod:      Attorney for the State:

JEFFREY A. DEVASHER                 CHARLES W. BURSON
Senior Assistant Public Defender    Attorney General & Reporter
Nashville, Tennessee            
(On appeal)                         MICHAEL E. MOORE
                                    Solicitor General
PAT MCNALLY                 
Assistant Public Defender           GORDON W. SMITH
Nashville, Tennessee                Associate Solicitor General
(At trial)                          Nashville, Tennessee

Attorney for Appellant Young        NICHOLAS D. BAILEY
                                    Assistant District Attorney
JAMES YOUNG                         General
(Pro se on appeal)                  Nashville, Tennessee
                                    (In McLeod's case only)
MARK J. FISHBURN                
Nashville, Tennessee                T. MICHAEL BOTTOMS
(At trial)                          District Attorney General
                                    Lawrenceburg, Tennessee

                                    ROBERT C. SANDERS
                                    Assistant District Attorney 
                                    General
                                    Columbia, Tennessee
                                    (In Young's case only)
                      
Judge: BIRCH

First Paragraph:

This consolidated appeal centers our attention on the broad, growing
problem in child abuse cases of the admissibility of statements made
by children during the course of a medical examination.  The precise
difficulty arises in attempting to apply evidentiary rules drafted
with adults in mind to cases involving children.   Problems
notwithstanding, we must achieve a balance that fosters the important
governmental interest in protecting children while maintaining
fundamental fairness.

URL:http://www.tba.org/tba_files/TSC/MCLEODY.OP.WP6
Opinion-Flash

VANESSA PHILLIPS, v. PENNSYLVANIA NATIONAL INSURANCE COMPANY,                  

Court:TSC - Workers Comp Panel

For Appellant:              For Appellee:

J. Brent Nolan              P. Richard Talley
Clinton, Tennessee          Dandridge, Tennessee
                       
Judge: Loser

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 contends (1) that the evidence preponderates against the
trial court's finding that the employee suffered an injury by accident
in the course of her employment, (2) that the evidence preponderates
against the trial court's finding that the employee's permanent
impairment is causally related to her employment, (3) that the trial
court erred in awarding medical expenses of an unauthorized provider,
and (4) that the trial court abused its discretion with respect to the
award of discretionary costs.  The panel concludes that the judgment
should be reversed, for the reasons set forth below.

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

SHELBY WILLIAMS INDUSTRIES, v. ALTON SANE,  

Court:TSC - Workers Comp Panel

For the Appellant:              For the Appellee:

Joseph J. Doherty               Fletcher L. Irvin
Wimberly & Lawson               319 East Broadway
Liberty Center                  Newport, TN 37821
P. O. Box 1066
Morristown, TN 37816-1066
                      
Judge: THAYER

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. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. Plaintiff,
Shelby Williams Industries, Inc., instituted suit against Defendant,
Alton Sane, seeking a determination as to whether the defendant had
sustained a work-related injury which was compensable.  The Chancellor
found the claim to be compensable and fixed defendant's permanent
partial disability at fifty percent to the body as a whole.

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

GREENE COUNTY, TENNESSEE v. LISA WARD, JARROD WARD and JORDAN WARD, 

Court:TSC - Workers Comp Panel

For the Appellants:             For the Appellee:

Jack H. Burkhard                W.R. Coleman, Jr.
102 South Main Street           Jeffrey M. Ward
Greeneville, TN  37743          Milligan & Coleman
                                P.O. Box 1060
John T. Milburn Rogers          Greeneville, TN  37744
100 South Main Street
Greeneville, TN  37743                       

Judge: THAYER

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. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. These cases
were instituted by Greene County, Tennessee, plaintiff, against the
dependents of William Guy Ward, deceased, and Robert John Desormeaux,
deceased, defendants, to determine whether the deaths of the two
individuals are compensable under the Workers' Compensation laws of
our state.

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

ADAMS TV OF MEMPHIS, INC. , 
Licensee of WHBQ-TV,    
v.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL 474
and JOHN DEBERRY and MORGAN MURRELL,

Court:TCA

Archie Sanders, III,
SHUTTLEWORTH, SMITH, McNABB & WILLIAMS, Memphis, Tennessee
Attorney for Plaintiff/Appellant.

Dan M. Norwood,
James R. Becker, Jr.,
NORWOOD & DEBOO, Memphis, Tennessee
Attorneys for Defendants/Appellees.
                          
Judge: FARMER

First Paragraph:

Plaintiff-Appellant, Adams TV of Memphis, Inc., Licensee of WHBQ-TV
("Adams TV"), appeals the trial court's order denying Adams TV's
application to vacate an arbitration award in favor of
Defendants-Appellees, International Brotherhood of Electrical Workers,
AFL-CIO, Local 474 ("Union"), John DeBerry ("DeBerry"), and Morgan
Murrell ("Murrell").

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

CITY STATE BANK and THE BANK OF SHARON  
v.
DEAN WITTER REYNOLDS, INC., a Delaware Corporation, and HANK FRANCK,               

Court:TCA

DOUGLAS A. BLACK
THOMAS J. WALSH, JR.
WOLFF ARDIS, P.C.
Memphis, Tennessee
Attorneys for Appellants

EDWARD M. KAPLAN
NATHANIEL L. PROSSER
ARMSTRONG ALLEN PREWITT
GENTRY JOHNSTON & HOLMES
Memphis, Tennessee
Attorneys for Appellees
                    
Judge: ALAN E. HIGHERS

First Paragraph:

This is an interlocutory appeal from the trial court's grant of
partial summary judgment in favor of defendants on the basis of the
statute of limitations.  The primary issue for our determination is
whether there exists a genuine issue of material fact with respect to
when the plaintiff banks discovered or reasonably should have
discovered their cause of action against defendants.  We hold that
this issue was inappropriate for resolution by summary judgment and,
therefore, we reverse the judgment of the court below.

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

ROBIN GAIL HERRERA, v. FERNANDO ANTONIO HERRERA,    

Court:TCA

Stevan L. Black,
BLACK, BOBANGO & MORGAN, Memphis, Tennessee
Attorney for Defendant/Appellant.

David E. Caywood,
Marc E. Reisman,
CAUSEY, CAYWOOD, TAYLOR & McMANUS, Memphis, Tennessee
Attorney for Plaintiff/Appellee.

Judge: FARMER

First Paragraph:

In this divorce action, Fernando Antonio Herrera (hereinafter
"Husband" or "Dr. Herrera") appeals the trial court's determination
regarding the award of custody of the parties' minor children as well
as the amount of child support, rehabilitative alimony, marital debt
and attorney's fees for which Dr. Herrera was held responsible.  In
addition, he also appeals the Chancellor's reliance upon the Guardian
Ad Litem's report and recommendations, the Chancellor's refusal to
disqualify himself from presiding over the contempt proceedings
against Dr. Herrera and the trial court's finding that Dr. Herrera was
guilty of criminal contempt.

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

STATE OF TENNESSEE, v. HAROLD BLEVINS,  

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Raymond Mack Garner             Charles W. Burson
District Public Defender        Attorney General & Reporter 

Natalee Staats Hurley           Elizabeth T. Ryan
Asst. Dist. Public Defender     Assistant Attorney General
419 High Street                 Criminal Justice Division
Maryville, TN 37804             450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                Michael L. Flynn
                                District Attorney General

                                Philip H. Morton
                                Asst. Dist. Attorney General
                                363 Court Street
                                Maryville, TN 37804
                        
Judge: PAUL G. SUMMERS

First Paragraph:

The appellant, Harold Blevins, pled guilty to two counts of forgery,
two counts of uttering, theft under $ 500.00, ten counts of passing a
worthless check, two counts of obtaining a controlled substance by
misrepresentation, and attempt to obtain a controlled substance by
fraud.  He received an effective sentence of four years.  He was
ordered to serve his sentence at the Department of Correction's
Special Needs Facility.  He raises two issues on appeal: 1.  Whether
the trial court erred in sentencing him to a three year sentence out
of a possible range of two to four years for the offense of obtaining
a controlled substance by fraud. 2.  Whether the trial court erred by
refusing to place him on community corrections.

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

STATE OF TENNESSEE, v. RICKY MICHAEL DIXON,     

Court:TCCA

For the Appellant:              For the Appellee:

Jerry S. Sloan                  Charles W. Burson
730 Cherry Street, Suite C      Attorney General and Reporter
Chattanooga, TN  37402  
                                Sarah M. Branch
                                Assistant Attorney General                          
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                William H. Cox III
                                District Attorney General

                                H. C. Bright
                                Asst. District Attorney General
                                Courts Building
                                600 Market Street
                                Chattanooga, TN  37402
                        
Judge: David G. Hayes

First Paragraph:

The appellant, Ricky Michael Dixon, was convicted by a Hamilton County
jury of aggravated kidnapping, aggravated assault, and attempted
sexual battery.  The appellant received, respectively, concurrent
sentences of twenty years confinement in the Department of Correction,
fifteen years confinement in the Department of Correction, and eleven
months and twenty-nine days confinement in the local workhouse.  On
appeal, the appellant presents the following issues: (1) whether the
evidence is insufficient to support his convictions, and (2) whether
his convictions violate the holding of our supreme court in State v.
Anthony, 817 S.W.2d 299 (Tenn. 1991).  After reviewing the record, we
conclude that the evidence is sufficient.  However, in light of the
facts of this case and pursuant to Anthony, we agree that the
appellant's multiple convictions and punishments violate the principle
of fundamental fairness, depriving the appellant of his due process
rights.  For the reasons set forth below, we conclude that fundamental
fairness requires the dismissal of the convictions for the lesser
offenses and that the conviction for the greater offense of aggravated
kidnapping should stand.

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

STATE OF TENNESSEE, v. JACKSON FANN,    

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Eugene B. Dixon                 Charles W. Burson
Attorney at Law                 Attorney General & Reporter
215 Ellis Street                500 Charlotte Avenue
Maryville, TN 37804-4915        Nashville, TN 37243-0497
(Appeal Only)
                                Darian B. Taylor
Kevin W. Shepherd               Assistant Attorney General
Attorney at Law                 450 James Robertson Parkway
404 Ellis Avenue                Nashville TN 37243-0493
Maryville, TN 37801
(Trial Only)                    Michael L. Flynn
                                District Attorney General
                                363 Court Street
                                Maryville, TN 37804-5906

                                Edward P. Bailey, Jr.
                                Assistant District Attorney General
                                363 Court Street
                                Maryville, TN 37804-5906
                          
Judge: Joe B. Jones

First Paragraph:

The appellant, Jackson Fann, was convicted of three counts of
statutory rape, a Class E felony, two counts of contributing to the
unruliness of a minor, a Class A misdemeanor, and contributing to the
delinquency of a minor, a Class A misdemeanor, by a jury of his peers.
 The trial court found the appellant was a standard offender and
imposed a Range I sentence consisting of a $3,000 fine and confinement
for two (2) years in the Department of Correction for each count of
statutory rape. These three sentences are to be served consecutively. 
The trial court sentenced the appellant to confinement for eleven
months and twenty-nine days in the Blount County Jail for each count
of contributing to the unruliness of a minor and contributing to the
delinquency of a minor.  These three sentences are to be served
concurrently to all other sentences.  The effective sentence imposed
by the trial court is confinement for six (6) years in the Department
of Correction and fines totaling $9,000.  In this Court, the appellant
contends the evidence contained in the record is insufficient to
support his convictions because (a) the two victims were accomplices
and (b) their testimony was not corroborated. The judgment of the
trial court is affirmed.  This case is remanded for the entry of an
amended judgment in Count I of indictment number 8227.

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

STATE OF TENNESSEE, v. BARBARA FULLER,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:  

Charles G. Wright, Jr.      Charles W. Burson
253 East 11th Street        Attorney General & Reporter
Chattanooga, TN 37402
                            Sharon S. Selby  
                            Assistant Attorney General
                            Criminal Justice Division
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            Gary D. Gerbitz
                            District Attorney General

                            H.C. Bright   
                            Asst. Dist. Attorney General
                            Courts Building         
                            Chattanooga, TN. 37402

                            Yolanda Mitchell
                            Intern, D.A. Gen. Office 
                            Courts Building
                            Chattanooga, TN 37402
                        
Judge: Robert E. Burch

First Paragraph:

Appellant was charged with two counts of assault and one count of
disorderly conduct.  At a trial by jury, she was convicted of the
first count of assault and acquitted of the second count of assault
and of the disorderly conduct charge.  She appeals of right to this
Court, citing a single issue for review, to wit: the denial of her
pre-trial motion to suppress.

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

STATE OF TENNESSEE, v. JEFF WHITAKER,   

Court:TCCA

For Appellant:
    
Joe H. Walker 
District Public Defender 
Ninth Judicial District
(on appeal)

Walter B. Johnson
Assistant Public Defender
P.O. Box 224 
Harriman, TN 37748
(on appeal and at trial)
For Appellee:

Charles W. Burson
Attorney General & Reporter

Darian B. Taylor
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN  37243-0493

Charles E. Hawk
District Attorney General
P.O. Box 703
Kingston, TN  37763

Frank Harvey
Assistant District Attorney General
P.O. Box 703
Kingston, TN  37763                       

Judge: Gary R. Wade

First Paragraph:

The defendant, Jeff Whitaker, waived his right to a jury trial and
pled guilty to eight counts of rape of a child.  The trial court
imposed a Range l sentence of fifteen years for each count and ordered
concurrent sentences except for counts one, eleven, and sixteen which
are to be served consecutively.  The effective sentence is 45 years.

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

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