TBALink Opinion-Flash

April 30, 1997 -- Volume #3 -- Number #048

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
01-New Opinions From TSC-Rules
00-New Opinions From TSC-Workers Comp Panel
07-New Opinions From TCA
07-New Opinions From TCCA

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George Dean
TBALink Chief Editor

Court:TSC - Rules

Paragraph:

The Rules of the Tennessee Court of Criminal Appeals are amended 
by adding the following, which shall become Rule 21 of this Court:


Rule 21.  Capital Cases and Notice of Appeal--.  In addition to the
content requirements for a Notice of Appeal as set forth in Rule 3(f),
Tenn. R. App. P., the appellant shall prominently state on the notice,
below the docket number, the phrase "CAPITAL CASE APPEAL."  This
requirement shall apply to both direct appeal and post-conviction
capital cases.

URL:http://www.tba.org/tba_files/TSC_Rules/RULE21_RU.WP6
Opinion-Flash

EDWIN H. BUSH and WILLIAM F.
GIBSON, Co-Administrators of    
The Estate of Lonnie Mae Lane
Deceased    
vs.
TONY WESLEY CARRICK, 
Individually and Administrator  
of The Estate of Harvey Wesley  
Carrick, Deceased

Court:TCA

Attorneys:  

ALLEN SHOFFNER  
207 North Spring Street
Shelbyville, TN 37160
    Attorney for Appellants

TAMRA L. SMITH 
NORTON & SMITH
124 East Side Square
P. O. Drawer 37
Shelbyville, TN 37160
    Attorney for Appellee                        

Judge: Goddard

First Paragraph:

The complaint in this case contends that the transfer of funds
represented by a $37,500 certificate of deposit by Mr. Carrick to
himself, rendered the father's estate insolvent and therefore was
fraudulent as to creditors. VACATED AND REMANDED.

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

FIRST FARMERS AND MERCHANTS
NATIONAL BANK OF COLUMBIA,
a national banking association with 
its principal office in Columbia,   
Maury County, Tennessee
vs.
BURT BROTHERS FURNITURE CO.,    
INC., WILLIAM W. HARDISON, SR., 
and DOROTHY M. HARDISON,        
individually, and d/b/a Burt        
Brothers Furniture Co., Inc

Court:TCA

Attorneys:                          

THOMAS H. PEEBLES, IV
WALLER LANSDEN DORTCH & DAVIS
809 South Main Street, Suite 300
P. O. Box 1035
Columbia, TN 38402-1035
    Attorney for Plaintiff/Appellee

DELILAH A. SPEED
P. O. Box 973
Columbia, Tennessee 38402
    Attorney for Defendant/Appellant
    
Judge: CANTRELL

First Paragraph:

The primary question in this case is whether a wife's guaranty of her
husband's debts covers debts for which he later became obligated as a
guarantor.  The Circuit Court of Maury County granted summary judgment
against the wife. We affirm. AFFIRMED AND REMANDED.

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

JOANNE DALLE MAYFIELD
vs.
JOHN DREW MAYFIELD

WITH CONCURRING OPINION


Court:TCA

Attorneys: 

MICHAEL W. BINKLEY, #5930
150 Second Avenue North
Suite 300
Nashville, TN 37201-1902
ATTORNEY FOR PLAINTIFF/APPELLANT

DAVID W. GARRETT, #13248.
Robert L. Jackson & Associates
214 Second Avenue North
Suite 103
Nashville, TN 37201
ATTORNEY FOR DEFENDANT/APPELLEE                         

Judge: TODD

First Paragraph:

In this divorce case, the wife Joanne Dalle Mayfield has appealed from
a decree finding both parties at fault, declaring the parties to be
divorced under TCA S 36-4-129, declaring joint custody of a minor
child with physical custody in the wife, ordering child support,
alimony and attorneys fees and dividing the marital estate. MODIFIED,
AFFIRMED AND REMANDED.

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

ROY L. McCAMEY
VS.
TENNESSEE DEPARTMENT OF 
CORRECTION, et al.

Court:TCA

Attorneys:

Roy L. McCamey
P. O. Box 5000
Northeast Correctional Center
Mountain City, Tennessee 37683-5000
PRO SE/ PETITIONER/APPELLANT

John Knox Walkup
Attorney General and Reporter

Patricia C. Kussmann
Assistant Attorney General
425 Fifth Avenue North
Nashville, Tennessee
ATTORNEY FOR RESPONDENTS/APPELLEES                          

Judge: TODD

First Paragraph:

This is a suit for declaratory judgment which was dismissed by the
Trial Court for failure to state a claim for which relief can be
granted. AFFIRMED AND REMANDED.

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

OUTPATIENT DIAGNOSTIC CENTER
vs.
RALPH CHRISTIAN

WITH CONCURRING OPINION

Court:TCA

Attorneys:   

For the Plaintiff/Appellee:             For the Defendant/Appellant:

John E. Buffaloe, Jr.                   Ralph Christian, Pro Se
Nashville, Tennessee
                       

Judge: KOCH

First Paragraph:

This appeal involves a medical care provider's efforts to hold a
 husband liable for medical services provided to his wife.  The
 husband perfected a de novo appeal in the Circuit Court for Davidson
 County after the provider obtained a judgment against him in general
 sessions court.  Thereafter, the trial court granted the provider's
 motion for summary judgment, and the husband appealed to this court. 
 The husband assails the summary judgment on two grounds: first that
 the record contains no evidence demonstrating that the provider is
 entitled to a judgment as a matter of law and second that he should
 not be held liable for his wife's debt because she was not acting as
 his agent in the transaction and because he did not ratify the debt. 
 We have determined that the summary judgment must be vacated because
 of the absence of an evidentiary foundation for a judgment of any
 sort.

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

STATE OF TENNESSEE
DEPARTMENT OF HUMAN 
SERVICES
vs.
IN THE MATTER OF:
EMMI PRUITT AND         
KARELYN PRUITT,         
                        
JAMI SWAYZE (McCARTHY),

Court:TCA

Attorneys: 

JOHN KNOX WALKUP
Attorney General and Reporter

DOUG EARL DIMOND
Assistant Attorney General
426 Fifth Avenue North
Nashville, Tennessee 37243-0499
    Attorney for Petitioner/Appellee

TIMOTHY S. PRIEST
SWAFFORD, PETERS & PRIEST
100 First Avenue, S.W.
Winchester, Tennessee 37398
    Attorney for Respondent/Appellant                         

Judge: CANTRELL

First Paragraph:

This case involves a question of the jurisdiction of this state over a
juvenile petition filed while the children were visiting here.  The
petition alleged that the children were dependent and neglected
because of acts that occurred in their home state of Michigan.  The
juvenile court of Franklin County assumed jurisdiction, found the
children to be dependent and neglected, and placed them in foster
care.  The circuit court affirmed.  We hold that the lower courts had
no jurisdiction over this proceeding; therefore we reverse the court's
order and dismiss the petition. REVERSED, DISMISSED AND REMANDED.

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

ALVIN SEAGROVES
vs.
TENNESSEE DEPARTMENT OF 
CORRECTION, et al.

Court:TCA

Attorneys: 

For the Plaintiff/Appellant:            For the Defendants/Appellees:

Alvin Seagroves, Pro Se                 Charles W. Burson
                                        Attorney General and Reporter

                                        Patricia C. Kussmann
                                        Nashville, Tennessee
                         
Judge: KOCH

First Paragraph:

This consolidated appeal involves a prisoner's dispute with the
Department of Correction concerning the calculation of his statutorily
authorized sentence credits.  The prisoner, acting pro se, filed two
petitions for declaratory judgment in the Chancery Court for Davidson
County in which he asserted that the Department had not provided him
with the proper credits.  The trial court dismissed the first petition
on the grounds that the prisoner had not exhausted his administrative
remedies and dismissed the second petition on the ground that it had
become moot because the Department had awarded the prisoner his
requested credits.  The prisoner asserts on this appeal that the
Department incorrectly calculated his prison sentence reduction
credits.  We have determined that the calculation discrepancy does not
presently present a justiciable issue because the prisoner has not
sought to resolve this dispute with the Department. AFFIRMED AND
REMANDED.

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

TIMOTHY ANDERSON
vs. 
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

MICHAEL A. WALCHER                  JOHN KNOX WALKUP
Office of the Public Defender       Attorney General and Reporter
1609 College Park Drive
Box 11                              MICHAEL J. FAHEY, II
Morristown, TN 37813-1618           Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                         
                                    C. BERKELEY BELL, JR.
                                    District Attorney General
                                        109 S. Main Street
                                    Suite 501
                                    Greeneville, TN 37743             

                                    JOHN F. DUGGER, JR.
                                    Asst District Attorney General
                                    Hamblen County Justice Center
                                    510 Allison Street
                                    Morristown, TN 37814                         

Judge: CLARK

First Paragraph:

In this appeal the appellant contends that the trial court abused its
discretion in revoking the defendant's probation and in requiring
incarceration when the revocation was based on his inability to pay
costs.  We disagree and therefore affirm the decision of the lower
court. AFFIRMED.

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

EANOS E. HUNT, JR
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For Appellant:
Eanos Earl Hunt, Jr., Pro Se
Northeast Correctional Center
Mountain City, TN 37683-5000

For Appellee:

Charles W. Burson
Attorney General & Reporter

Eugene J. Honea
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN  37243-0493                         

Judge: WADE

First Paragraph:

The petitioner, Eanos Earl Hunt, Jr., appeals from the trial court's
summary dismissal of his application for post-conviction relief.  The
single issue presented on review is whether the trial court erred by
finding that the grounds for relief asserted by the petitioner had
been previously determined or waived and that the statute of
limitations had expired. We affirm the judgment of the trial court.
AFFIRMED.

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

STATE OF TENNESSEE
vs.
BRIAN KEITH MARTIN

Court:TCCA

Attorneys:     

FOR THE APPELLANT:                  FOR THE APPELLEE:

RICHARD G. ROSSER                   CHARLES W. BURSON
102 East Court Square               Attorney General and Reporter
Somerville, TN 38068
                                    CLINTON J. MORGAN
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    ELIZABETH RICE
                                    District Attorney General

                                    CHRISTOPHER MASHBURN
                                    Asst District Attorney General
                                    302 Market Street
                                    Somerville, TN 38068                     

Judge: WELLES

First Paragraph:

The Defendant, Brian Keith Martin, appeals as of right pursuant to
Rule 3 of the Tennessee Rules of Appellate Procedure.  He was
convicted by a Fayette County jury of aggravated burglary.  The trial
court sentenced him as a Range II multiple offender to eight years in
the Department of Correction.  In this appeal, the Defendant presents
five issues for review. AFFIRMED.

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

KENNETH WAYNE O'GUINN
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

FOR THE APPELLANT:                  FOR THE APPELLEE:

CHRISTOPHER M. MINTON               CHARLES W. BURSON
MICHAEL J. PASSINO                  Attorney General and Reporter
Lassiter, Tidwell & Hildebrand
213 Fifth Avenue North              DARIAN B. TAYLOR
Nashville, TN 37219                 Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243

                                    JERRY WOODALL
                                    District Attorney General

                                    AL EARLS
                                    Assistant District Attorney
                                    P. O. Box 2825
                                    Jackson, TN  38302

Judge: SMITH

First Paragraph:


Appellant Kenneth Wayne O'Guinn was convicted of first degree murder
and aggravated rape.  He received a death sentence for the murder
conviction and life imprisonment for the rape conviction.  In this
appeal, Appellant challenges the trial court's dismissal of his
petition for post-conviction relief, presenting the following issues
for review: (1) whether the trial court erred in finding that his
exculpatory evidence claim was previously determined; and (2) whether
the trial court erred in finding that his sufficiency claim was
waived. REVERSED AND REMANDED.

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

RONALD L. PARKER
vs.
BILLY COMPTON, WARDEN

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

CHRISTOPHER M. MINTON               CHARLES W. BURSON
MICHAEL J. PASSINO                  Attorney General and Reporter
Lassiter, Tidwell & Hildebrand
213 Fifth Avenue North              DARIAN B. TAYLOR
Nashville, TN 37219                 Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243

                                    JERRY WOODALL
                                    District Attorney General

                                    AL EARLS
                                    Assistant District Attorney
                                    P. O. Box 2825
                                    Jackson, TN  38302                         

Judge: SMITH

First Paragraph:

This matter is before the Court upon the petitioner's "motion for
reconsideration" of the order entered in the above-captioned cause on
March 4, 1997.  The petitioner also requests the Court to render
"further findings of fact and conclusions of law" in this matter. 
Having reviewed the petitioner's motion, and finding that the same is
not well taken, it is hereby ORDERED that the petitioner's "motion for
reconsideration and further findings of fact and conclusions of law"
is denied.

URL:http://www.tba.org/tba_files/TCCA/PARKE-R1_ORD.WP6
Opinion-Flash

STATE OF TENNESSEE
vs. 
MILES V. TOLLEY

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

ROBERT Y. OAKS                      JOHN KNOX WALKUP
Office of the Public Defender       Attorney General and Reporter
Main Courthouse
Elizabethton, TN 37643              WILLIAM DAVID BRIDGERS
                                    Assistant Attorney General
RANDALL E. REAGAN                   450 James Robertson Parkway
602 Gay Street, Suite 905           Nashville, TN 37243-0493
Knoxville, TN 37902

                                    DAVID E. CROCKETT
                                    District Attorney General
                                    Rt. 19, Box 99
                                    Johnson City, TN 37601

                                    KENNETH C. BALDWIN
                                    Asst District Attorney General
                                    Carter County Courthouse Annex
                                    Elizabethton, TN 37643                        

Judge: CLARK

First Paragraph:

The defendant was charged in the indictments with attempted aggravated
rape and aggravated burglary.  He entered a plea of guilty to
attempted aggravated rape.  Following his sentencing hearing, he was
sentenced to serve eight years in the Department of Corrections.  The
trial court denied the petitioner's request for suspended sentence.

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

CHARLES WILEY
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:    

FOR THE APPELLANT:                  FOR THE APPELLEE:

DAVID B. HILL                       JOHN KNOX WALKUP
301 E. Broadway                     Attorney General and Reporter
Newport, TN 37821
                                    MICHAEL J. FAHEY, II
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493
                        
                                    ALFRED C. SCHMUTZER, JR.
                                    District Attorney General
                                    125 Court Avenue, Room 301-E
                                    Sevierville, TN 37862             

                                    JAMES BRUCE DUNN
                                    Asst District Attorney General
                                    339-A E. Main Street
                                    Newport, TN 37821                      

Judge: CLARK

First Paragraph:

On January 25, 1990, the appellant, Charles Wiley, was convicted by a
jury  of aggravated rape and aggravated kidnapping.  He was sentenced
as a Range I standard offender to a term of twenty-two years on each
conviction.  The sentences were ordered to be served concurrently. 
This court affirmed petitioner's conviction.  State v. Wiley, No. 168
(Tenn. Crim. App., Knoxville, February 12, 1992), perm. app. denied,
June 22, 1992. AFFIRMED.

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

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