TBALink Opinion-Flash

November 1, 1996 -- Volume #2 -- Number #94

Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts.

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00-New Opinons From TSC
03-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
06-New Opinons From TCA
04-New Opinons From TCCA

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IN RE:  AMENDMENT TO RULE 12, RULES OF THE SUPREME COURT OF
TENNESSEE

Court:TSC - Rules

Attorneys: N/A                         

Judge: ADOLPHO A. BIRCH, JR.

First Paragraph:

Rule 12 of the Rules of the Supreme Court of Tennessee is hereby
amended by deleting the Rule in its entirety and substituting in its
place the following: RULE 12.  FIRST DEGREE MURDER TRIAL REPORTS AND
APPEALS IN CAPITAL CASES.

URL:http://www.tba.org/tba_files/TSC_Rules/RULE12.ORD.WP6
Opinion-Flash

IN RE: RULE 28, TENNESSEE SUPREME COURT RULES

Court:TSC - Rules

Attorneys: N/A                         

Judge: PER CURIAM

First Paragraph:

It is hereby ordered that the attached revised Rule 28, Tennesssee
Rules of Post-Conviction Procedure, and appendices shall replace
existing Rule 28 and appendices.

URL:http://www.tba.org/tba_files/TSC_Rules/RULE28AM.ORD.WP6
Opinion-Flash

IN RE:  AMENDMENT TO RULE 29, 
        RULES OF THE SUPREME COURT OF TENNESSEE

Court:TSC - Rules

Attorneys: N/A                         

Judge: ADOLPHO A. BIRCH, JR.

First Paragraph:

Pursuant to Tenn. Code Ann. S20-12-127(a)(2), the Uniform Civil
Affidavit of Indigency document that is presently appended to Rule 29
of the Rules of the Supreme Court is hereby deleted in its entirety
and replaced with the Uniform Civil Affidavit of Indigency document
appended to this Order.

URL:http://www.tba.org/tba_files/TSC_Rules/RULE29AM.ORD.WP6
Opinion-Flash

DAVID F. BUSH,v. BRENDA L. ALLGOOD and  MERCANTILE PROPERTIES, INC.,      

Court:TCA

William B. Bradley
Peach Court Bldg., Suite 210
7105 Peach Court
P.O. Box 1223
Brentwood, Tennessee 37024
ATTORNEY FOR PLAINTIFF/APPELLANT

Thomas I. Carlton, Jr.
Daniel P. Berexa
Cornelius & Collins
Suite 2700
Nashville City Center
511 Union Street
Nashville, Tennessee 37219
ATTORNEY FOR DEFENDANT/APPELLEE
                         
Judge: HENRY F. TODD

First Paragraph:

The Trial Court granted summary judgement dismissing one of the
defendants, Mercantile Properties, Inc., and ordered entry of final
partial judgment pursuant to T.R.C.P. Rule 54.02.  Plaintiff has
appealed.  The remaining defendant, Brenda L. Allgood, is not involved
in this appeal.

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

KEVIN RYAN MOSLEY,  v. TENNESSEE BOARD OF PAROLES, et al.,                      

Court:TCA

KEVIN RYAN MOSLEY
N.C.S.C. 134663
7466 Centennial Boulevard
Nashville, Tennessee 37209-1052
Pro Se/Petitioner/Appellant

CHARLES W. BURSON
Attorney General and Reporter

PATRICIA C. KUSSMANN
Assistant Attorney General
404 James Robertson Parkway
Suite 2000
Nashville, Tennessee 37243
Attorney for Respondent/Appellee
                    
Judge: BEN H. CANTRELL

First Paragraph:

Kevin Mosley, a prisoner in the custody of the Department of
Correction, was twice considered for parole.  On each occasion the
Parole Board declined to release him, citing as its reason the
seriousness of his offense.  Mr. Mosley filed a Petition for
Certiorari with the Chancery Court of Davidson County, contending that
he was entitled to a more definite statement of the Parole Board's
reasons.  The prisoner also argued that the Board erred in failing to
consider the results of a psychological study it had ordered.  The
Chancery Court dismissed the petition.  We affirm the trial court.

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

MARY ALICE BOLTON PRINCE, by and through her conservator, James M.
Bolton, 
v.
ST. THOMAS HOSPITAL; HOSPITAL CORPORATION OF AMERICA; HOSPITAL
CORPORATION OF AMERICA dba HCA EDGEFIELD HOSPITAL; MILLER MEDICAL
GROUP; JACK T. SWAN,M.D.; THOMAS C. FARRAR, M.D.; and LANGDON G.
SMITH,M.D.

Court:TCA

RANDALL L. KINNARD                  ROBERT E. HOEHN
DANIEL L. CLAYTON                   4527 A Highway 70 East
Kinnard & Clayton                   White Bluff, Tennessee  37187
The Woodlawn                        ATTORNEY FOR THOMAS C. FARRAR,M.D.
127 Woodmont Boulevard
Nashville, Tennessee  37205
ATTORNEYS FOR Mrs. Prince/APPELLANT

ROSE P. CANTRELL                    DAVID L. STEED
Parker Lawrence Cantrell & Dean     Cornelius & Collins
200 Fourth Avenue North             2700 Nashville City Center
Fifth Floor                         511 Union Street
Nashville, Tennessee  37219         Nashville, Tennessee  37219
ATTORNEY FOR ST. THOMAS HOSPITAL    ATTORNEY FOR LANGDON G. SMITH,M.D.
and JACK T. SWAN, M.D.              and MILLER MEDICAL GROUP

C.J. GIDEON, JR.
Gideon & Wiseman
NationsBank Plaza
Suite 1900
Nashville, Tennessee  37219
ATTORNEY FOR HOSPITAL CORPORATION
of AMERICA

Judge: SAMUEL L. LEWIS

First Paragraph:

This is an appeal by plaintiff/appellant, Mary Alice Bolton Prince,
from the decision of the trial court granting the motions for summary
judgment of defendants/appellees.  The trial court based its decision
on its finding that Mrs. Prince was fifty percent or more at fault. 
The facts out of which this controversy arose are as follows.

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

RICHARD P. RIENHOLTZ,       
v.
CHRISTINE BRADLEY, Commissioner, and TENNESSEE DEPARTMENT OF
CORRECTION,

Court:TCA

JOHN G. OLIVA
ROBERT P. BALLINGER
Washington Square, Suite 417
222 Second Avenue, North
Nashville, Tennessee 37201
Attorneys for Petitioner/Appellant

CHARLES W. BURSON
Attorney General & Reporter

PATRICIA C. KUSSMANN
Assistant Attorney General
404 James Robertson Parkway
Suite 2000
Nashville, Tennessee  37243
Attorney for Respondents/Appellees                      

Judge: BEN H. CANTRELL

First Paragraph:

Richard P. Rienholtz, an inmate in the Tennessee prison system 
petitioned the Chancery Court of Davidson County for a declaratory
judgment arguing that  the Department of Correction's decision to
extend his parole eligibility date for escape was illegal.  The
chancellor dismissed the petition and we affirm.

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

SUSAN KAY PILGER RIGGS, v. JAMES LANDRY RIGGS,  

Court:TCA

Fred C.Dance, #7004
DANCE, DANCE & LANE
3200 West End Avenue, Suite 101
Nashville, Tennessee 37203
ATTORNEY FOR PLAINTIFF/APPELLANT

David I. Komisar, #9207
211 Printer's Alley Building
Suite 400
Nashville, Tennessee 37201
ATTORNEY FOR DEFENDANT/APPELLEE                      

Judge: HENRY F. TODD

First Paragraph:

The plaintiff/wife has appealed from the judgment of the Trial Court
declaring the parties divorced pursuant to T.C.A. S 36-4-129, placing
child custody in the wife and awarding child support.  The issues on
appeal relate only to support.

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

MARTIN SILVA,   v. JAMES A. CROSSMAN d/b/a JIM CROSSMAN REALTY,

Court:TCA

ROBERT J. NOTESTINE, III
Nashville, Tennessee
Attorney for Appellant

MICHAEL SNEED
Nashville, Tennessee
Attorney for Appellee
                     
Judge: ALAN E. HIGHERS

First Paragraph:

This appeal involves a dispute as to the obligations of the parties
under a lease agreement.  The lessor of the premises, James A.
Crossman, terminated the lease after discovering that the lessee,
Martin Silva, had experienced problems with violence and other
criminal activities at the previous location of his nightclub.  Silva
filed a complaint in the Chancery Court for Davidson County seeking
damages for breach of the lease contract.  The trial court heard the
case without a jury and awarded damages to Silva.  Crossman has
appealed and argues that the trial court erred in failing to find
grounds for rescission of the lease and in awarding damages to Silva. 
For the reasons stated below, we affirm the judgment.

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

STATE OF TENNESSEE, v. TROY ANDERSON,

Court:TCCA

FOR THE APPELLANT:                  FOR THE APPELLEE:


CHARLES M. AGEE, JR.                CHARLES W. BURSON
Attorney at Law                     Attorney General & Reporter
P.O. Box 280
Dyersburg, TN  38025-0280           ROBIN L. HARRIS
                                    Asst. Attorney General
                                    450 James Robertson Pkwy.
                                    Nashville, TN  37243-0493

                                    C. PHILLIP BIVENS
                                    District Attorney General
                                    29th Judicial District
                                    Dyer County Courthouse
                                    Dyersburg, TN  38024
                       
Judge: JOHN H. PEAY

First Paragraph:

The defendant was charged in an indictment returned October 10, 1994,
with the sale of marijuana weighing over one-half ounce.  He was first
tried on January 26, 1995, but the jury was unable to reach a verdict.
 A mistrial was declared, and the defendant was subsequently tried
again.  He was found guilty at a jury trial on April 25, 1995.  The
trial court sentenced him as a range one standard offender to one year
and two months with the Department of Correction, and imposed a fine
of two thousand dollars ($2000).  In this appeal as of right, the
defendant raises the following seven issues: (1)  whether he was
denied his right to a speedy trial; (2)  whether the trial court erred
in refusing to suppress a tape recording of the alleged drug
transaction; (3)  whether the trial court erred in denying the
defendant's request for a change of venue; (4)  whether the trial
court erred in refusing to exclude the testimony of the officer who
allegedly witnessed the drug transaction; (5)  whether the trial court
erred in failing to dismiss the indictment due to the State's alleged
failure to disclose exculpatory evidence; (6)  whether the trial court
abused its discretion by denying alternative sentencing; and (7) 
whether he was denied due process of law when the jury deliberated
only ten minutes before returning with a verdict.

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

STATE OF TENNESSEE, v. JOHNNY JONES and GLADYS CATRON   

Court:TCCA

FOR THE APPELLANT JONES:             FOR THE APPELLEE:


HAROLD D. ARCHIBALD                 CHARLES W. BURSON
Falls Bldg., Ste. 790               Attorney General & Reporter
22 N. Front St.
Memphis, TN   38103                 ELLEN H. POLLACK
                                    Asst. Attorney General
FOR THE APPELLANT CATRON:           450 James Robertson Pkwy.   
                                    Nashville, TN  37243-0493
                
WILLIAM L. JOHNSON                  ELIZABETH RICE
50 N. Front St., Ste. 1150          District Attorney General
Memphis, TN   38103
                                    CHRISTOPHER MARSHBURN
                                    Asst. District Attorney General
                                    302 Market St.
                                    Somerville, TN  38068
                         
Judge: JOHN H. PEAY

First Paragraph:

The defendant, Johnny Jones, was indicted for possessing cocaine with
the intent to deliver; possessing marijuana with the intent to
deliver; possession of a handgun after conviction of a felony; and
resisting arrest.  After a jury trial, he was convicted on all
charges.  The defendant, Gladys Catron, was indicted for possessing
cocaine with the intent to deliver; possessing marijuana with the
intent to deliver; and contributing to the delinquency of a minor. 
The trial court dismissed the last charge, and she was convicted of
the other two charges after a jury trial.  The defendants were tried
together.

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

STATE OF TENNESSEE,v. JAMES CECIL SELLERS,  
w/ OPINION CONCURRING IN RESULTS

Court:TCCA

For Appellant:                      For Appellee:
George Morton Googe                 Charles W. Burson
District Public Defender            Attorney General & Reporter
26th  Judicial District
(on appeal)                         Christina S. Shevalier
                                    Assistant Attorney General
Pamela J. Drewery                   450 James Robertson Parkway
Asst. Public Defender               Nashville, TN  37243-0493
227 W. Baltimore Street             
Jackson, TN  38301                  Don Allen
(on appeal and at trial)            Asst. District Attorney General
                                    P.O. Box 2825
                                    Jackson, TN  38301
                        
Judge: GARY R. WADE

First Paragraph:

The defendant, James Cecil Sellers, was convicted of aggravated
assault, especially aggravated kidnapping, aggravated burglary, and
possession of a deadly weapon during the commission of an offense. 
The trial court imposed the following concurrent sentences:
aggravated assault       5 years    Range I
especially aggravated   18 years    Range I
kidnapping
aggravated burglary      6 years    Range I
possession of a deadly   2 years    Range I
weapon during 
commission of 
an offense
In this appeal as of right, the defendant presents the following
issues for review: (1)  whether the trial court erred by admitting
evidence of prior domestic disputes between the victim and the
defendant; (2)  whether the trial court erred by admitting as rebuttal
a tape recording of a telephone call the victim made to police; (3) 
whether the trial court erred by denying a motion to strike a juror
for cause; (4) whether the weapon count should merge with the
conviction for aggravated assault; (5) whether the trial court erred
by refusing to charge kidnapping as a lesser included offense; and (6)
 whether the trial court erred in the imposition of sentence.

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

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