TBALink Opinion-Flash

March 5, 1997 -- Volume #3 -- Number #027

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 Opinions From TSC
00-New Opinions From TSC-Rules
04-New Opinions From TSC-Workers Comp Panel
05-New Opinions From TCA
12-New Opinions From TCCA

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TBALink Chief Editor


WILBUR E. CAGLE
vs.                         
MIKE UNDERWOOD BUILDERS, INC. and MIKE UNDERWOOD

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellant:                      For Appellee:
Wade M. Boswell                     James R. Lafevor
William T. Magill                   Knoxville, Tennessee
O'Connor, Petty, Child & Boswell
Knoxville, Tennessee                         

Judge: Loser

First Paragraph:

In this appeal, the employer, Underwood, contends the evidence
preponderates against the trial court's findings that (1) the
employee's injury was one arising out of and in the course of
employment, (2) the employer had actual notice of the injury, and (3)
the employee retains a forty percent permanent partial disability to
the right leg from a torn meniscus.  The panel has concluded the
judgment should be AFFIRMED.

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

GWENDOLYN CHESNEY
vs.   
KNOXVILLE GLOVE CO. and  CIGNA INSURANCE CO

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellant:                          For Appellees:
 James L. Milligan, Jr.                 Rebecca B. Murray
Gary T. Dupler                          Kennerly, Montgomery & Finley
Milligan & Associates                   Knoxville, Tennessee                         

Judge: Loser

First Paragraph:

In this appeal, the employee contends the evidence preponderates
against the trial court's award of permanent partial disability
benefits based on twenty-five percent to the body as a whole and in
favor of a higher award.  The panel has concluded the award should be
modified to provide for benefits based on fifty percent to the body as
a whole. AFFIRMED AS MODIFIED.

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

CYNTHIA J. BOWERS LOGUE
vs.
LEAF, INC. and AETNA LIFE and CASUALTY INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:  

FOR APPELLANT:                          FOR APPELLEE:
M. Scott Willhite                       William E. Friedman
80 Monroe Avenue, Suite 650             1205 100 N. Main Building
Memphis, Tennessee 38103                Memphis, Tennessee 38103                        

Judge: Tatum

First Paragraph:

The defendants/appellants Leaf, Inc. and its insurance carrier, Aetna,
present issue:  (1) that the court erred in awarding the plaintiff
permanent disability of 80% to the right upper extremity; (2) that the
court erred in awarding permanent disability benefits in a lump sum.
REVERSED IN PART MODIFIED IN PART OTHERWISE AFFIRMED.

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

DANNY E. WILSON
vs.
CALVIN BURGESS LUMBER COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

For Appellant:                          For Appellee:

S. Roger York                           David J. Deming
Crossville, Tennessee                   Manier, Herod, Hollabaugh 
                                            & Smith                          

Judge: Loser

First Paragraph:

In this appeal, the employee, Wilson, contends the evidence
preponderates against the trial court's finding that his injury did
not arise out of the employment.  This panel affirms the trial court.
AFFIRMED.

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

STATE OF TENNESSEE ex rel.
ROBERT J. EARHART, et al.
vs.
CITY OF BRISTOL, TENNESSEE

Court:TCA

Attorneys: 

David H. Hornick, Nashville, For the Appellants.
Jack W. Hyder,  Bristol, For the Appellee.
                          
Judge: INMAN

First Paragraph:

On January 11, 1995, the Bristol City Council enacted 24 ordinances
annexing various parcels of property abutting U.S. 11-E in Sullivan
County. Nineteen of these ordinances were challenged by an action quo
warranto as provided by T.C.A. S 6-51-102. The jury returned a verdict
that fourteen of these ordinances were reasonable and five were
unreasonable.  A new trial was ordered as to nine (9) of the
ordinances, and a second jury found all nine annexations reasonable. 
Thus, all annexations were found to be reasonable. AFFIRMED.

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

PATRICIA BROADWELL
vs.
THOMAS MICHAEL BROADWELL

Court:TCA

Attorneys:

Andrew Berke, Chattanooga, For the Appellant.
Jacqueline E. Schulten, Chattanooga, For the Appellee.
                          
Judge: INMAN

First Paragraph:

This is a domestic relations case.  The issues are whether the
evidence preponderates against (1) an award of alimony in futuro to
the appellee, (2) the finding that an alleged loan to the parties was
intended as a gift, (3) an award of attorney's fees. AFFIRMED as
MODIFIED.

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

LYNN BERNICE CARRAHER
vs.
MICHAEL THOMAS CARRAHER

Court:TCA

Attorneys:

Andrew Berke and Ronald J. Berke, Chattanooga, For the Appellant.
Steven M. Jacoway, Chattanooga, For the Appellee.

Judge: INMAN

First Paragraph:

The plaintiff's employer had a generous profit-sharing plan to which
the plaintiff was not required to contribute.  The trial judge
declined to treat this fund as marital property because the "plaintiff
didn't earn it, and the defendant didn't contribute to it." AFFIRMED.

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

NATRICE WILLIAMSON DOUGLAS, individually and as next of kin 
of her son, JOHN CAYLON DOUGLAS 
vs.
E & C CARROLL ENTERPRISES, INC., d/b/a/ E & C CONSTRUCTION, 
X. S. SMITH, INC., and POPE'S PLANT FARM, INC

Court:TCA

Attorneys: 

Thomas G. McCroskey and L. Lee Kull, Maryville, For the Appellant,
    Pope's Plant Farm, Inc.
David T. Black, Maryville, For the Appellee Natrice Williamson
    Douglas. 
Francis A. Cain and Robert L. Kahn, Knoxville, for the
    Defendant, X. S. Smith, Inc. 
Joe Nicholson, Maryville, for the Defendant Below, E & C Carroll
    Enterprises, Inc.

Judge: INMAN

First Paragraph:

This is an action for damages for the alleged wrongful death of the
plaintiff's decedent who was electrocuted while erecting a greenhouse
at Pope's Plant Farm in Blount County. AFFIRMED.

URL:http://www.tba.org/tba_files/TCA/DOUGL-N_OPN.WP6
Opinion-Flash

EDNA C. WELCH
vs.
FRANK DEVINEY and AGNES DEVINEY

Court:TCA

Attorneys:

Jeffrey D. Boehm, Chattanooga, for Appellants
Brian M. House, Chattanooga, for Appellee                          

Judge: INMAN

First Paragraph:

This case was filed in the General Sessions Court to recover
possession of a house owned by the plaintiff and occupied by the
defendants.  A default judgment was entered in the General Sessions
Court and the defendants timely perfected an appeal to the Circuit
Court, which ordered the defendants to vacate the property. AFFIRMED.

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

STATE OF TENNESSEE
vs.
JAMES EDWARD ARMSTRONG

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

W. JEFFERY FAGAN                    CHARLES W. BURSON
Asst. District Public Defender      Attorney General & Reporter
P.O. Box 663                    
Camden, Tennessee 38320             ELLEN H. POLLACK
                                    Asst. Attorney General
                                    450 James Robertson Parkway
                                    Nashville, Tennessee 37243 0493

                                    ROBERT G. RADFORD
                                    District Attorney General
                            
                                    VICKI S. SNYDER 
                                    Asst. District Attorney General
                                    P.O. Box 686
                                    Huntingdon, Tennessee 38344                         

Judge: RILEY

First Paragraph:

Defendant Armstrong appeals as of right from a jury verdict of guilty
for the sale of a Schedule II controlled substance (cocaine). 
Sentenced as a Range I standard offender, Armstrong received
thirty-seven (37) months in the Tennessee Department of Correction and
was fined $2,000.  The sole issue for review is whether the evidence
is sufficient to sustain Armstrong's conviction.  AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/ARMSTRON_OP2.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
JERRY HILBERT CARTER

Court:TCCA

Attorneys:        

For the Appellant:                  For the Appellee:
Douglas L. Payne                    Charles W. Burson
114 South Main Street               Attorney General and Reporter
Greeneville, TN  37743  
                                    Robin L. Harris
                                    Assistant Attorney General                  
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    C. Berkeley Bell, Jr.
                                    District Attorney General

                                    Eric D. Christiansen
                                    Asst. District Attorney General
                                    113 J. West Church
                                    Greeneville, TN  37743             

Judge: Hayes

First Paragraph:

The appellant, Jerry Hilbert Carter, was convicted by a Greene County
jury of robbery, a class C felony.  Tenn. Code Ann. S 39-13-401(b)
(1991).  The trial court sentenced the appellant as a range I,
standard offender to six years confinement in the Tennessee Department
of Correction.  The appellant now challenges the sufficiency of the
evidence supporting his conviction, the imposition by the trial court
of the maximum sentence authorized by law, and the trial court's
denial of an alternative sentence. AFFIRMED.

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

ROBERT GLEN COE
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE;
ROBERT C. IRBY                      CHARLES W. BURSON
4345 Mallory Avenue East            Attorney General and Reporter
Memphis, TN 38111               
                                    JOHN P. CAULEY
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    JOHN W. PIEROTTI
                                    District Attorney General

                                    JOHN CAMPBELL
                                    Asst District Attorney General
                                    201 Poplar Avenue, 3rd Floor
                                    Memphis, TN 38103                        

Judge: RILEY

First Paragraph:

Appellant, Robert Glen Coe, appeals from the dismissal of his third
post conviction relief petition.  He has been convicted of first
degree murder, aggravated rape, and aggravated kidnaping.  He was
sentenced to death for first degree murder and received two sentences
of life imprisonment for the other charges. AFFIRMED.

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

STATE OF TENNESSEE
vs.
LEON BARNETT COLLIER

Court:TCCA

Attorneys:   

For the Appellant:                      For the Appellee:
Ardena J. Garth                         Charles W. Burson
District Public Defender                Attorney General and Reporter
    
Donna Robinson Miller                   Michael J. Fahey, II
Asst. District Public Defender          Assistant Attorney General    
William A. Dobson                       Criminal Justice Division
Asst. District Public Defender          450 James Robertson Parkway
Suite 300, 701 Cherry Street            Nashville, TN 37243 0493    
Chattanooga, TN  37402              
                                        Kenneth Rucker
                                        Legal Assistant

                                        William H. Cox III
                                        District Attorney General
                                        City/County Courts Building
                                        Room 300
                                        Chattanooga, TN 37402
                                        
Judge: Hayes

First Paragraph:

The appellant, Leon Barnett Collier, was convicted by a Hamilton
County jury of the first degree murder of Marketta Green and the
attempted first degree murder of Eric Young.  Following these
convictions, the jury sentenced the appellant to life imprisonment
without the possibility of parole for the first degree murder of Ms.
Green.  The trial court imposed a twenty year sentence for the
attempted first degree murder conviction and ordered this sentence to
run consecutively with the sentence of life without parole.  On
appeal, the appellant raises three issues for our determination:  (1) 
whether the evidence was sufficient to support a conviction for first
degree murder and a sentence of life without the possibility of
parole; (2) whether the admission of prior bad acts of the appellant
was error; and (3) whether consecutive sentences were proper.
AFFIRMED.

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

STATE OF TENNESSEE
vs.
RICK J. GOULTRIE

Court:TCCA

Attorneys: 

For Appellant:
A. Wayne Carter
Assistant Public Defender
P.0. Box 1453
Cleveland, TN  37364-1453

For Appellee:
Charles W. Burson
Attorney General & Reporter

Hunt Brown
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN  37243-0493

Joe Rehyansky
Assistant District Attorney General
P.O. Box 1351
Cleveland, TN  37364-1351
                        
Judge: WADE

First Paragraph:

After a jury trial, the defendant, Rick Goultrie, was convicted of
possession of marijuana and public intoxication.  The trial court
imposed consecutive sentences of eleven months twenty-nine days for
the possession conviction and thirty days for the public intoxication
conviction.  The defendant was required to serve seventy-five percent
of the sentences in the county jail. AFFIRMED.

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

STATE OF TENNESSEE
vs.
MARK A. HAROLD

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:
Nat H. Thomas                       Charles W. Burson
Attorney at Law                     Attorney General & Reporter
317 Shelby Street                   500 Charlotte Avenue
Kingsport, TN 37660                 Nashville, TN 37243-0497

                                    Timothy F. Behan
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    H. Greeley Wells, Jr.
                                    District Attorney General
                                    P.O. Box 526
                                    Blountville, TN 37617 0526

                                    Edward W. Wilson
                                    Asst District Attorney General
                                    P.O. Box 526
                                    Blountville, TN 37617 0526                         

Judge: Jones

First Paragraph:

The appellant, Mark A. Harold, was convicted of possessing less than
.5 grams of cocaine with the intent to sell, a Class C felony, and
possessing drug paraphernalia, a Class A misdemeanor, by a jury of his
peers.  The trial court, finding the appellant to be a standard
offender, imposed a Range I sentence consisting of a $100,000 fine and
confinement for three (3) years in the Department of Correction for
possessing cocaine with intent to sell;  and the court imposed a
sentence consisting of a $2,500 fine and confinement for eleven months
and twenty-nine days in the Sullivan County Jail for possessing drug
paraphernalia.  The sentences are to be served concurrently.  One
issue is presented for review.  The appellant contends the trial court
abused its discretion by refusing to grant him an alternative sentence
to incarceration. AFFIRMED.

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

HOWARD CLIFTON KIRBY
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:
David M. Eldridge                   Charles W. Burson
Attorney at Law                     Attorney General & Reporter 
606 W Main Avenue
Knoxville, TN 37901                 Elizabeth T. Ryan
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493
    
                                    Randall E. Nichols
                                    District Attorney General
    
                                    Robert L. Jolley, Jr.   
                                    Asst. Dist. Attorney General
                                    City-County Building
                                    Knoxville, TN 37902                         

Judge: SUMMERS

First Paragraph:

In 1976 the appellant, Howard Clifton Kirby, pled guilty to nine
counts of armed robbery and burglary.  In 1989 he pled guilty to a
single count of third degree burglary and to being a habitual
criminal.  Based upon his prior convictions, he received a life
sentence.  He subsequently filed a petition for post-conviction relief
challenging his 1976 guilty pleas and his 1989 conviction as a
habitual criminal.  His petition contended that his 1976 trial counsel
had a conflict of interest that adversely affected his decision to
plead guilty.  The conflict arose from his trial counsel's
representation of two of the appellant's co-defendants.  The petition
was denied.  This Court, however, reversed the decision and vacated
five of the nine pleas. AFFIRMED.

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

STATE OF TENNESSEE
vs.
MARTY MILLER

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:
CHARLES M. CORN                     CHARLES W. BURSON
Public Defender                     Attorney General and Reporter

STEVE WARD                          EUGENE J. HONEA
Assistant Public Defender           Assistant Attorney General
P.O. Box 647                        450 James Robertson Parkway
Athens, TN 37303                    Nashville, TN 37243-0493

                                    JERRY N. ESTES
                                    District Attorney General
                                    P.O. Box 647
                                    Athens, TN 37303
                        

Judge: WELLES

First Paragraph:

This is an appeal as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure.  The Defendant was convicted by a Monroe
County jury of felony escape. He was sentenced to serve two years in
the Department of Correction and ordered to pay court costs within six
months after his release from incarceration.  The Defendant appeals
both his conviction and sentence and presents the following issues for
review: (1) That the trial court erred by failing to rule that the
probation warrant for which he was under arrest was issued beyond the
statute of limitations and therefore void or voidable; (2) that the
evidence was insufficient to prove the Defendant's guilt beyond a
reasonable doubt; and (3) that the sentence imposed by the trial court
was excessive.  AFFIRMED.

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

DONALD WAYNE STROUTH
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:                      For the Appellee:
Mark E. Olive                           Charles W. Burson
1900 Center Pointe Blvd. #80            Attorney General and Reporter
Tallahassee, FL 32308                           

                                        Jennifer L. Smith
                                        Assistant Attorney General
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493

                                        H. Greeley Wells, Jr.
                                        District Attorney General

                                        Edward E. Wilson
                                        Assistant District Attorney
                                        P.O. Box 526
                                        Blountville, TN 37617
                                        
Judge: Barker

First Paragraph:

The appellant, Donald Wayne Strouth, appeals as of right the denial of
his second post-conviction petition by the Circuit Court of Sullivan
County.  Appellant filed a lengthy amended petition in the trial
court; however, appellant raises only five issues on appeal. AFFIRMED.

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

STATE OF TENNESSEE
vs.
JAMES RANDALL TUBBS

Court:TCCA

Attorneys:   

FOR THE APPELLANT:                  FOR THE APPELLEE:

CHARLES N. GRIFFITH                 CHARLES W. BURSON
415 West Main Street                Attorney General and Reporter
P. O. Box 456                   
Waverly, TN 37185                   ELIZABETH T. RYAN
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0686

                                    G. ROBERT RADFORD
                                    District Attorney General
                                    111 Church St., P. O. Box 686
                                    Huntingdon, TN  38344-0686                       

Judge: RILEY

First Paragraph:

The appellant, James Randall Tubbs, appeals his felony conviction of
vandalism over $1,000.  The sole issue is whether the jury verdict was
a conviction of vandalism under $500 or vandalism over $1,000. 
AFFIRMED.

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

STATE OF TENNESSEE
vs.
MICHELLE WESTFIELD

Court:TCCA

Attorneys:  

For Appellant:                      For Appellee:
Richard A. Fisher                   Charles W. Burson
Attorney                            Attorney General & Reporter
Logan, Thompson, Miller, Bilbo,
   Thompson & Fisher, P.C.          Timothy F. Behan 
Thirty-Second Street                Assistant Attorney General
P.O. Box 191                        450 James Robertson Parkway
Cleveland, TN  37364-0191           Nashville, TN  37243-0493
            
                                    Rebble Johnson 
                                    Asst District Attorney General
                                    Tenth Judicial District 
                                    P.O. Box 1351
                                    Cleveland, TN  37364-1351                        

Judge: WADE

First Paragraph:

The defendant, Michelle Westfield, was convicted of theft over
$10,000.00, a Class C felony.  Tenn. Code Ann. S 34-14-103, -105.  The
trial court imposed a three-year sentence and suspended all but thirty
days, which were to be served in the county jail.  Probation
thereafter is to extend for a period of four years and eleven months.
The defendant was ordered to pay $13,374.50 in restitution. In this
appeal of right, the defendant claims that the trial court erred by
imposing any of the sentence to be served in jail. AFFIRMED.

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

STATE OF TENNESSEE
vs.
BRYAN MATTHEW WILLIS

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:
GUY T. WILKINSON                    CHARLES W. BURSON
District Public Defender            Attorney General and Reporter

W. JEFFERY FAGAN                    M. ALLISON THOMPSON
Asst District Public Defender       Assistant Attorney General
P.O. Box 663                        450 James Robertson Parkway
Camden, Tennessee  38320            Nashville, Tennessee 37243 0493

                                    G. ROBERT RADFORD
                                    District Attorney General

                                    VICKI S. SNYDER
                                    Asst District Attorney General
                                    P.O. Box 686
                                    Huntingdon, TN 38344-0686                        

Judge: RILEY

First Paragraph:

Bryan Matthew Willis appeals his convictions in the Circuit Court of
Henry County.  He was convicted by a jury of three (3) counts of
aggravated burglary and three (3) counts of theft of property.  On
appeal, he argues that the evidence was insufficient for the
convictions based on the uncorroborated testimony of an accomplice.
AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/WILLIS_OPN.WP6

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