TBALink Opinion-Flash

May 16, 1997 -- Volume #3 -- Number #054

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

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TBALink Chief Editor


BETTY BURGESS and CARTER 
BURGESS, Individually and as
Parents an Next Friend of Crockett
Burgess, a minor
vs.
RICK FLOYD and KERNEY CISCO
d/b/a TULLAHOMA CEE BEE STORE

Court:TCA

Attorneys: 

Doyle E. Richardson; Rogers, Richardson & Duncan
	of Manchester, For Appellants

John R. Rucker, Jr.; Rucker, Rucker & Coleman
	of Murfreesboro, For Appellees
                  
Judge: CRAWFORD

First Paragraph:

This is a product liability case.  Plaintiffs, Betty Burgess and
Carter Burgess (the Burgesses), individually and as parents and next
friend of Crockett Burgess, a minor, appeal the trial court's order
granting summary judgment in favor of defendants, Rick Floyd and
Kerney Cisco d/b/a/ Tullahoma Cee Bee Store (Cee Bee Store). 
AFFIRMED.

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

JULIA ANN GENTRY
vs.
JAMES WALTER GENTRY, III

Court:TCA

Attorneys:   

MARK A. RASSAS
JULIA P. NORTH
Rassas & Rassas
Suite 104, Glenn Building
P. O. Box 361
Clarksville, Tennessee  37041-0361
	ATTORNEYS FOR PLAINTIFF/APPELLEE

FRANK J. RUNYON
MARKLEY RUNYON GILL
P. O. Box 1023
Clarksville, Tennessee  37041
	ATTORNEYS FOR DEFENDANT/APPELLANT                       

Judge: LEWIS

First Paragraph:

This is an appeal by the defendant, James Walter Gentry, III, from a
decision of the Montgomery County Chancery Court.  Defendant takes
issue with the court's decision which awarded the plaintiff, Julia Ann
Gentry, a portion of Defendant's stock, ordered Defendant to pay
$550.00 per month in child support, and awarded Plaintiff $8,000.00 as
her share of the equity in the marital property.  Plaintiff also
raises the issue of whether the court erred when it awarded Defendant
control of the assets of the parties' minor child, William Todd
Gentry.  AFFIRMED AS MODIFIED, AND REMANDED.

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

MARGARET SCHINDLER HAAS
vs.
MICHAEL LEE HAAS

Court:TCA

First Paragraph:


The appellant has filed a petition for rehearing stating that this
Court's opinion failed to address the request in her brief that she be
awarded attorney's fees incurred on appeal.  After due consideration,
the appellant's request for an award of attorney's fees occurred on
appeal is denied.

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

GEORGIA KEYS
vs.
MEMPHIS CARWASH, INC. d/b/a
MR. PRIDE'S CARWASH

Court:TCA

Attorneys:     

EUGENE C. GAERIG
Memphis, Tennessee
Attorney for Appellant

LELAND M. McNABB
SHUTTLEWORTH, SMITH, McNABB & WILLIAMS
Memphis, Tennessee
Attorney for Appellee                     

Judge: HIGHERS

First Paragraph:

In this slip and fall case, Georgia Keys ("Plaintiff") filed suit
against Memphis Carwash, Inc., d/b/a Mr. Pride's Car Wash
("Defendant") for injuries sustained from a fall at Defendant's place
of business.  The trial court granted judgment in favor of the
Defendant holding that Plaintiff failed to establish the Defendant's
negligence.  Plaintiff appeals the judgment of the court below arguing
that the trial court erred in holding that the Plaintiff failed to
prove the Defendant's negligence and in making an oral ruling in favor
of the Defendant at the close of the proof before first making its
findings of fact and conclusions of law.  We affirm the judgment of
the trial court. AFFIRMED.

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

RONALD D. McKINNA
vs.	
LASCO, INC.

Court:TCA

First Paragraph:

We have for consideration a thoughtful petition to re-hear in which
the employer insists that our enquiry was abortive since we failed (1)
to examine the proffered reason for the employee's termination, (2) to
examine the plaintiff's evidence of pretext, and (3) to find that age
discrimination was a motivating factor in the determination.

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

TRACY W. MOORE, Deceased, by
Parent and Next of Kin, SHIRLEY
MOORE; and SHIRLEY MOORE,
Individually
vs.
JAMES A. PRESCOTT, II

Court:TCA

Attorneys:  

George L. Morrison, III,
Attorney for Plaintiff/Appellant.

David W. Camp,
WALDROP & HALL, P.A., Jackson, Tennessee
Attorney for Respondent/Appellee Haulers Insurance Company.
                        
Judge: FARMER

First Paragraph:

Plaintiff Shirley Moore, on her own behalf and on behalf of her
deceased son, Tracy W. Moore, appeals the trial court's order granting
the motion for summary judgment filed by Appellee Haulers Insurance
Company, Moore's uninsured motorist carrier.  In granting the motion,
the trial court ruled that the automobile insurance policy issued by
Haulers did not cover Moore's claim because Moore failed to give
prompt notice of the claim to Haulers as required by the policy
provisions. We affirm. AFFIRMED AND REMANDED.

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

GREGORY DEULEY NANCE
vs.
ANGELA MILLIKEN NANCE

Court:TCA

Attorneys:

Kvin S. Terry, Nashville, Tennessee
Attorney for Respondent/Counter-Petitioner/Appellant.

John J. Hollins, Jr.,
HOLLINS, WAGSTER & YARBROUGH, P.C., Nashville, Tennessee
Attorney for Petitioner/Counter-Respondent/Appellee.                          

Judge: FARMER

First Paragraph:

Angela Milliken Nance (Wife) and Gregory Deuley Nance (Husband) were
divorced in 1993.  Wife was awarded custody of the parties' minor
daughter and Husband was awarded visitation.  He filed a petition
seeking to hold Wife in contempt for her willful failure and refusal
to honor the visitation awarded him.  She petitioned the court to find
Husband in contempt for "failing to exercise visitation as required by
the Final Decree" and for failure to pay child support as directed.
AFFIRMED AND REMANDED.

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

ESTATE OF EDWARD P. RUSSELL
Deceased,	
BILL COVINGTON and BRENDA 
JOHNSON
vs.	
VELMA RUSSELL
ERVIN B. and EDWARD P. RUSSELL, JR.

Court:TCA

Attorneys:

Charles C. Cornelius #2761
Nashville City Center,
911 Union Street, Suite 2700
Nashville, Tennessee 38219
ATTORNEY FOR DEFENDANT/APPELLANT

George H. Cate, Jr., #2775
95 White Bridge Road, Suite 503
Cavalier Bldg.
Nashville, Tennessee 37205
ATTORNEY FOR PLAINTIFF/APPELLEE 

Greg Galloway, #4931
101 Antioch Pike, Suite 100 
Nashville, Tennessee 37211
ATTORNEYS FOR INTERVENORS, DEFENDANTS/COUNTER-PLAINTIFFS                          

Judge: TODD

First Paragraph:

The captioned defendant has appealed from an adverse decision of the
Trial Court regarding her interest in real estate.  The undisputed
chain of events leading to this controversy is as follows: In 1965,
Mary L. Covington, a widow, now deceased, purchased in her sole name,
the subject real estate located in Davidson County, Tennessee.  Her
children were the plaintiffs, Bill Covington and Brenda Johnson.

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

BRANDY REBECCA THATCHER.
a minor by next friend, KATHY VAN STORY
vs.
BOBBY PHILLIP WYATT, ROBERT
PHILLIP WYATT and WILLIAM LEA

Court:TCA

Attorneys:      

LEWIS L. COBB
JUSTIN S. GILBERT
SPRAGINS, BARNETT, COBB & BUTLER
Jackson, Tennessee
Attorneys for Appellants

PAT H. MANN, JR.
Brownsville, Tennessee
Attorney for Appellees                    

Judge: HIGHERS

First Paragraph:

In this breach of contract case, Kathy Van Story ("Plaintiff"), as the
next friend of Brandy Thatcher ("Brandy"), seeks a judgment declaring
that the proceeds of Janie Perry Thatcher Wyatt's ("Decedent")
$100,000.00 life insurance policy be held in trust for the benefit of
Brandy.  The trial court ordered that the proceeds of Decedent's life
insurance policy be held in trust until Brandy reaches age twenty-five
or until Brandy has completed her desired college, graduate and
medical school education, whichever is later, and further ordered that
any remaining monies be distributed between Brandy and Bobby Wyatt
("Defendant").  Plaintiff appeals the judgment of the trial court
arguing that the trial judge erred in granting Defendant a one-half
interest in the trust following the latter of Brandy's twenty-fifth
birthday or desired college, graduate and medical school education
asserting that it was the Decedent's intent that the entire trust be
used for the benefit of Brandy.  We reverse the judgment of the court
below. REVERSED.

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

DANNY J. BRANSON
vs.
BILLY COMPTON, WARDEN

Court:TCCA

First Paragraph:

This matter is before the Court upon the state's motion to affirm the
judgment of the trial court under Rule 20, Rules of the Court of
Criminal Appeals.  The case before this Court represents an appeal
from the trial court's denial of the petitioner's petition for writ of
habeas corpus.  The record was filed on February 12, 1997, and the
petitioner's brief was filed on March 11, 1997.  The petitioner was
originally indicted on one count of rape of a child in September 1995,
and subsequently pled guilty to the same in November 1995.  In the
present appeal, the petitioner, relying in part upon State v. Roger
Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. June 20, 1996),
contends the judgment entered against him is void because the
indictment failed to allege the mens rea of the offense charged.

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

STATE OF TENNESSEE
vs.
GEORGE BROOKS

Court:TCCA

Attorneys:   

For the Appellant:                  For the Appellee:

WALKER GWINN                        CHARLES W. BURSON
Asst. Public Defender               Attorney General and Reporter
201 Poplar, Suite 2-01  
Memphis, TN  38103                  SARAH M. BRANCH
                                    Assistant Attorney General                          
                                    Criminal Justice Division
A. C. WHARTON, JR.                  450 James Robertson Parkway
District Public Defender            Nashville, TN 37243-0493                
                        
At Trial:                           WILLIAM GIBBONS
DIANE THACKERY                      District Attorney General
Asst. Public Defender
201 Poplar - 2nd Fl                 P. T. HOOVER
Memphis, Tn  38103                  Asst. District Attorney General
                                    201 Poplar Avenue - 3rd Fl
                                    Memphis, TN  38103                       

Judge: Hayes

First Paragraph:

The appellant, George Brooks, was convicted by a Shelby County jury of
aggravated robbery, a class B felony.  See  Tenn. Code Ann. S 39-13
402 (1991).  The trial court sentenced the appellant to eight (8)
years imprisonment in the Tennessee Department of Correction.  On
appeal, the appellant contends (1) that the convicting evidence is
insufficient, (2) that the trial court failed to instruct the jury on
the statutory definition of "serious bodily injury," and (3) that the
trial court failed to charge the jury on aggravated assault, a lesser
included offense. After a review of the record, we reverse the
judgment of the trial court and remand for a new trial. REVERSED AND
REMANDED.

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

STATE OF TENNESSEE
vs.
STEVEN B. BUGGS

Court:TCCA

Attorneys: 
 
For the Appellant:                  For the Appellee:

A. C. WHARTON, JR.                  CHARLES W. BURSON
District Public Defender            Attorney General and Reporter
    
W. MARK WARD                        SARAH M. BRANCH
Asst. Public Defender               Assistant Attorney General                      
147 Jefferson, Ste. 900             Criminal Justice Division
Memphis, TN  38103                  450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    WILLIAM GIBBONS
                                    District Attorney General

                                    THOMAS HENDERSON
                                    Asst. District Attorney General
                                    201 Poplar Avenue, Third Floor
                                    Memphis, TN  38103                        

Judge: Hayes

First Paragraph:

The appellant, Steven B. Buggs, appeals the verdict of a Shelby County
jury finding him guilty of the offense of murder in the perpetration
of a robbery.  He was sentenced to a term of life imprisonment.  The
sole issue presented on  appeal is whether the evidence is sufficient
to sustain his conviction. After a review of the record, we affirm the
judgment of the trial court. AFFIRMED.

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

RONALD DENNIS CRAFTON
vs.
BILLY COMPTON, WARDEN

Court:TCCA

First Paragraph:

This matter is before the Court upon the state's motion to affirm the
judgment of the trial court under Rule 20, Rules of the Court of
Criminal Appeals.  The case before this Court represents an appeal
from the trial court's denial of the petitioner's petition for writ of
habeas corpus.  The record was filed on March 13, 1997, and the
petitioner's brief was filed on March 19, 1997.  The record indicates
the petitioner was originally indicted on one count rape in July 1991.
In the present appeal, the petitioner, relying in part upon State v.
Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. June 20,
1996), contends the judgment entered against him is void because the
indictment failed to allege the mens rea of the offense charged.

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

DAVID CROSS
vs. 
ROBERT CONLEY, WARDEN

Court:TCCA

First Paragraph:

This matter is before the Court upon the state's motion to affirm the
judgment of the trial court under Rule 20, Rules of the Court of
Criminal Appeals.  The case before this Court represents an appeal
from the trial court's denial of the petitioner's petition for writ of
habeas corpus.  The record was filed on February 20, 1997, and the
petitioner's brief was filed on March 11, 1997.  The petitioner was
originally indicted on one count of rape of a child in July 1994, and
was subsequently found guilty of the same in December 1994.  In the
present appeal, the petitioner, relying in part upon State v. Roger
Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. June 20, 1996),
contends the judgment entered against him is void because the
indictment failed to allege the mens rea of the offense charged.

URL:http://www.tba.org/tba_files/TCCA/CROSS1_ORD.WP6
Opinion-Flash

JAMES LEROY JACKSON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For Appellant:                      For Appellee:
James Leroy Jackson                 Charles W. Burson
Pro Se                              Attorney General & Reporter
Cold Creek Correctional Facility 
P.O. Box 1000                       Clinton J. Morgan
Henning, TN  38041-1000             Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493           
                                    John Overton 
                                    Asst. District Attorney General
                                    Main Street
                                    Savannah, TN  38372                          

Judge: Hayes

First Paragraph:

The petitioner, James Leroy Jackson, appeals the trial court's denial
of his petition for post-conviction relief.  The issue presented for
review is whether the trial court correctly dismissed the petition
without an evidentiary hearing on the basis that it was barred by the
statute of limitations.  We affirm the judgment of the trial court.
AFFIRMED.

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

JAMES W. MASSENGALE
vs.
STATE OF TENNESSEE

Court:TCCA

First Paragraph:

This matter is before the Court upon the state's motion to affirm the
judgment of the trial court under Rule 20, Rules of the Court of
Criminal Appeals.  The case before this Court represents an appeal
from the trial court's dismissal of the petitioner's petition for writ
of habeas corpus.  The record was filed on February 19, 1997, and the
petitioner filed his brief on March 13, 1997.  The petitioner was
originally indicted on one count each of aggravated rape and armed
robbery in June 1981, and was subsequently found guilty of the same in
October 1981.  In the present appeal, the petitioner, relying in part
upon State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim.
App. June 20, 1996), contends the judgment entered against him is void
because the indictment failed to allege the mens rea of the offense
charged.

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

RICKY LEE OLDHAM
vs. 
BILLY COMPTON, WARDEN

Court:TCCA

First Paragraph:

This matter is before the Court upon the state's motion to affirm the
judgment of the trial court under Rule 20, Rules of the Court of
Criminal Appeals.  The case before this Court represents an appeal
from the trial court's denial of the petitioner's petition for writ of
habeas corpus.  The record was filed on February 11, 1997, and the
petitioner filed his brief on March 6, 1997.  It appears the
petitioner was originally indicted on one court of burglary in January
1995, and subsequently pled guilty to the same.  In the present
appeal, the petitioner, relying in part upon State v. Roger Dale Hill,
No. 01C01-9508-CC-00267 (Tenn. Crim. App. June 20, 1996), contends the
judgment entered against him is void because the indictment failed to
allege the mens rea of the offense charged.

URL:http://www.tba.org/tba_files/TCCA/OLDHAM1_ORD.WP6
Opinion-Flash

SYVESSLE REDMOND
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For Appellant:                      For Appellee:
Syvessle Redmond                    Charles W. Burson
Pro Se                              Attorney General & Reporter
No. 121145 
Northwest Correctional Center       Clinton J. Morgan
Route 1, P.O. Box 660               Assistant Attorney General
Tiptonville, TN  38079              450 James Robertson Parkway
                                    Nashville, TN  37243-0493           
                                    Reginald Henderson 
                                    Asst. District Attorney General
                                    Criminal Justice Center
                                    Third Floor
                                    201 Poplar
                                    Memphis, TN  38103                         

Judge: Hayes

First Paragraph:

The petitioner, Syvessle Redmond, appeals the trial court's denial of
his petition for post-conviction relief.  The issue presented for
review is whether the trial court correctly dismissed the petition
without an evidentiary hearing on the basis that it was barred by the
statute of limitations.  We affirm the judgment of the trial court.
AFFIRMED.

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

STATE OF TENNESSEE
vs.
JOHNNY L. SMITH

Court:TCCA

Attorneys:  

For the Appellant:                  For the Appellee:

WALKER GWINN                        CHARLES W. BURSON
Assistant Public Defender           Attorney General and Reporter
201 Poplar, Suite 2-01  
Memphis, TN  38103                  DEBORAH A. TULLIS
                                    Assistant Attorney General                          
                                    Criminal Justice Division
                                    450 James Robertson Parkway
A.C. WHARTON                        Nashville, TN 37243 0493        
District Public Defender        
                        
                                    WILLIAM GIBBONS
                                    District Attorney General

                                    AMY WEIRICH
                                    Asst. District Attorney General
                                    Third Floor
                                    Criminal Justice Complex                        

Judge: Hayes

First Paragraph:

The appellant, Johnny L. Smith, was convicted by a Shelby County jury
of two counts of especially aggravated kidnapping, two counts of
aggravated robbery, one count of aggravated burglary, and one count of
aggravated sexual battery.  At the sentencing hearing, the trial court
imposed an effective sentence of thirty-eight years in the Department
of Correction.  In this appeal as of right, the appellant contends
that the evidence is insufficient to support his convictions and that
his convictions for especially aggravated kidnapping violate the
holding of our supreme court in State v. Anthony, 817 S.W.2d 299
(Tenn. 1991). After review, the judgment of the trial court is
affirmed. AFFIRMED.

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

DONNIE LANE THOMPSON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  


For the Appellant:                  For the Appellee:

WILLIAM JAY REYNOLDS                CHARLES W. BURSON
Attorney for Appellant              Attorney General and Reporter
611 Court Street    
Savannah, TN  38372                 LISA A. NAYLOR
                                    Assistant Attorney General                          
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    G. ROBERT RADFORD
                                    District Attorney General

                                    JOHN OVERTON
                                    Asst. District Attorney General
                                    Hardin County Courthouse
                                    Savannah, TN  38372                        

Judge: Hayes

First Paragraph:

The appellant, Donnie Lane Thompson, appeals as of right from the
denial of his petition for post-conviction relief.  In August, 1993, a
Hardin County jury found the appellant guilty of aggravated burglary,
aggravated assault, evading arrest, vandalism, assault, and escape. 
As a result of these convictions, he is currently serving an effective
sentence of twenty-one years in the Department of Correction.  His
convictions were affirmed on direct appeal to this court.  State v.
Donnie Lane Thompson, No. 02C01-9401-CC-00007.  On March 2, 1995, the
appellant, proceeding pro se, filed this petition for post-conviction
relief.  On March 10, the trial court appointed counsel to represent
the appellant in the post-conviction proceedings.  On September 11,
1995, the petition was denied. AFFIRMED.

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

STATE OF TENNESSEE
vs.
DONALD C. WILLIAMS

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:

WALKER GWINN                        CHARLES W. BURSON
Asst. Public Defender               Attorney General and Reporter
201 Poplar, Suite 2-01  
Memphis, TN  38103                  LARRY M. TEAGUE
(ON APPEAL)                         Assistant Attorney General                          
                                    Criminal Justice Division
A.C. WHARTON                        450 James Robertson Parkway
District Public Defender            Nashville, TN 37243-0493                
KATHLEEN MITCHELL                       
Asst. Public Defender               WILLIAM GIBBONS
Criminal Justice Center             District Attorney General
Second Floor
201 Poplar Avenue                   TERRELL HARRIS and
Memphis, TN  38103                  PHILLIP G. HARRIS 
(AT TRIAL)                          Asst. District Attorneys General
                                    201 Poplar Avenue, Third Floor
                                    Memphis, TN  38103                         

Judge: Hayes

First Paragraph:

The appellant, Donald C. Williams, was convicted by a Shelby County
jury of aggravated robbery, Tenn. Code Ann. S39-13-402(a)(1) (1991),
and sentenced to twelve years confinement in the Department of
Correction.  On appeal, the appellant challenges the sufficiency of
the identification evidence. AFFIRMED.

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

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