TBALink Opinion-Flash

May 23, 1997 -- Volume #3 -- Number #056

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
16-New Opinions From TSC-Workers Comp Panel
25-New Opinions From TCA
11-New Opinions From TCCA

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George Dean
TBALink Chief Editor


DAVID DAVISON
vs.
TFE, INCORPORATED,      
CONTINENTAL INSURANCE   
COMPANY and LARRY BRINTON,
DIRECTOR, DIVISION OF WORKERS'
COMPENSATION, TENNESSEE
DEPARTMENT OF LABOR

Court:TSC - Workers Comp Panel

Attorneys:     

For Appellant:                          For Appellee:

William F. Kendall, III                 Thomas K. McAlexander
Waldrop & Hall                          Christopher L Taylor
Jackson, Tennessee                      Jackson, Tennessee
                     
Judge: Loser

First Paragraph:

In this appeal, the employer and its insurer argue the employee did
not suffer an injury by accident as claimed. AFFIRMED.

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

WILLIAM JERRY FLIPPIN, JR.
vs.
PRODUCTS COMPANY

Court:TSC - Workers Comp Panel

Attorneys:   

For Appellant:                          For Appellee:

Kathryn S. Kibbe                        James T. Ryal
Rainey, Kizer, Butler, Reviere & Bell   Adams, Ryal & Flippin
Jackson, Tennessee                      Humboldt, Tennessee                       

Judge: Loser

First Paragraph:

In this appeal, the employer questions the award of permanent partial
disability benefits as being excessive and contends the award should
be to the first phalange of the thumb rather than to the thumb.
AFFIRMED AS MODIFIED.

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

NORMA GAIL FLOWERS  
vs.
EMERSON MOTOR COMPANY

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellant:                          For Appellee:

P. Allen Phillips                       T. J. Emison, Jr.
Waldrop & Hall                          Alamo, Tennessee
Jackson, Tennessee
                         
Judge: Loser

First Paragraph:

In this appeal, the employer, Emerson Motor Company, contends the
award of permanent partial disability benefits is excessive. 
AFFIRMED.

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

CHARLOTTE FREEMAN
vs.
CPQ COLORCHROME, INC.

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:                      For the Appellee:

David W. Noblit                         Jeffrey W. Rufolo
Leitner, Moffitt, Williams,             Summers, McCrea & Wyatt, P.C.
  Dooley & Napolitan, PLLC              500 Lindsay Street
Third Floor, Pioneer Building           Chattanooga, TN 37402
Chattanooga, TN 37402
                         

Judge: BYERS

First Paragraph:

While lifting a machine at work, plaintiff heard or felt a "pop" in
her neck and experienced a slight tingling in her hands.  Because she
felt little or no pain at that time, she did not immediately suspect
that the "pop" and the tingling might be symptomatic of serious
injury.  When she developed pain in the neck a few days later after
sleeping on the arm, she sought medical care and found that she had
herniated two cervical disks. AFFIRMED.

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

ANITA GARDNER
vs.
WORLD COLOR PRESS, INC.

Court:TSC - Workers Comp Panel

Attorneys:  

For Appellant:                      For Appellee:

Mr. R. Lee Moore, Jr.               Mr. George L. Morrison, III
Farmer, Moore, Jones,               Attorney-at-Law
   Hamilton & Lay                   P. O. Box 182
P. O. Box 763                       Jackson, TN 38302
Dyersburg, TN 38025-0763                            

Judge: Martin

First Paragraph:

The issue presented is whether the trial court erred in finding that
the plaintiff sustained a 20 per cent (20%) permanent partial
disability to both arms. AFFIRMED.

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

PAMELA SUE HIGGINS
vs.
ANGELICA CORPORATION,
    a/k/a ANGELICA UNIFORM  
    GROUP, INC., a/k/a ANGELICA
    MANUFACTURING PLANT

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellant:                          For Appellee:

Mr. David L. Kleinfelter                Ms. Lisa June Cox
Dale, Rosenberg & McLean                Attorney-at-Law
P. O. Box 198258                        64 Lynoak Cove
221 Fourth Ave., North, 5th Floor       Jackson, Tennessee 38305
Nashville, Tennessee 37219-7443                         

Judge: Martin

First Paragraph:

Defendant appeals from the trial court's award of 45 per cent (45%)
permanent partial vocational disability of each arm, following surgery
on each wrist for carpal tunnel syndrome.  Defendant raises three (3)
issues, that the plaintiff's injuries are not causually related to her
employment and therefore, not compensable; that the plaintiff did not
give proper notice as required by Tenn. Code Ann. section 50-6-201;
and that the preponderance of the evidence does not support the trial
judge's finding that the plaintiff suffered a 45 per cent (45%)
permanent partial vocational disability to each arm.  The panel has
concluded that the judgment of the trial court should be affirmed.
AFFIRMED.

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

CAROL A. HILLIARD
vs.
TENNESSEE STATE HOME HEALTH 
SERVICES, INC., now HEALTH PLUS 
OF TENNESSEE, INC. and AETNA    
CASUALTY & SURETY COMPANY

Court:TSC - Workers Comp Panel

Attorneys:     

For Appellant:                      For Appellee, State Farm 
                                    Insurance Company:
Herbert E. Patrick
Clarksville, Tennessee              Tom Corts
                                    Ortale, Kelley, Herbert & Crawford
Gregory D. Smith                    Nashville, Tennessee
Clarksville, Tennessee
                                    For Appellee, Aetna Casualty &
                                    Surety Company:

                                    Tracy Shaw
                                    Howell & Fisher
                                    Nashville, Tennessee
                                    
Judge: Loser

First Paragraph:

The employee contends, in this appeal, that there is a genuine issue
of material fact concerning causation and that the summary judgment of
dismissal should be reversed.  VACATED AND REMANDED.

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

HUBERT HOLCOMB, JR.
vs.
AETNA LIFE AND CASUALTY COMPANY
and
DINA TOBIN, DIRECTOR OF   
DIVISION OF WORKERS'     
COMPENSATION FOR THE STATE 
OF TENNESSEE, DEPARTMENT OF LABOR

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellant:                          For Appellee, Dina Tobin:

John R. Cannon, Jr.                     Charles W. Burson
The Hardison Law Firm                   Attorney General and Reporter
Memphis, Tennessee
                                        Sandra E. Keith
                                        Assistant Attorney General
                                                                                 
Judge: Loser

First Paragraph:

In this appeal, the employer's insurer questions the allowance of
certain credits to the Second Injury Fund (the Fund).  AFFIRMED.

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

BRENDA JOYCE DURHAM 
KONYNDYK
vs.
EAGLE DISPLAYS, INC.    

Court:TSC - Workers Comp Panel

Attorneys:      

For the Appellant:                      For the Appellee:

Clinton H. Swafford                     Robert R. Davies
Swafford, Peters & Priest               Davies, Cantrell & Humphreys
100 First Ave. SW                       150 Second Ave., N, Ste. 225     
Winchester, TN  37398                   P.O. Box 190609 
                                        Nashville, TN  37219-0609                       

Judge: BYERS

First Paragraph:

The plaintiff appeals the trial court's finding that she did not
retain any permanent partial disability as a result of her
work-related injury. AFFIRMED.

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

KENNETH LAYMAN
vs.
HECKETHORN MFG. CO.

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellant:                          For Appellee:

Mr. R. Lee Moore, Jr.                   Mr. George L. Morrison, III
Farmer, Moore, Jones,                   Attorney-at-Law
   Hamilton & Lay                       P. O. Box 182
P. O. Box 763                           Jackson, TN 38302
Dyersburg, TN 38025-0763                         

Judge: Martin

First Paragraph:

In their appeal, the employer contends the award of permanent partial
disability benefits is excessive. AFFIRMED.

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

HAROLD E. MOONEY
vs.
BRECON KNITTING MILLS,
INCORPORATED and AETNA     
LIFE AND CASUALTY COMPANY

Court:TSC - Workers Comp Panel

Attorneys:  

For Appellant:                          For Appellee:

John R. Cannon, Jr.                     Jack V. Delany
The Hardison Law Firm                   Memphis, Tennessee
Memphis, Tennessee                         

Judge: Loser

First Paragraph:

In this appeal, the employer and its insurer contend the claimant's
injury did not arise out of the employment and the award of permanent
partial disability benefits is excessive. AFFIRMED.

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

RANDY PERTUSET
vs.
PARGO'S, INC.

Court:TSC - Workers Comp Panel

Attorneys:                          

For the Appellant:                      For the Appellee:

H. Tom Kittrell, Jr.                    Cyrus L. Booker
1416 Parkway Towers                     Mark A. Baugh
404 James Robertson Parkway             First American Center
Nashville, TN 37219                     315 Deaderick Street
                                        Suite 1280
                                        Nashville, TN 37238-1280
                                        
Judge: BYERS

First Paragraph:

The trial court dismissed the plaintiff's petition for workers'
compensation benefits. The plaintiff raises the following issues:
I.  The trial court erred in finding that the altercation between
the plaintiff and Thomas Wilson, a co employee, was not an "accident"
sufficient to justify an award of workers' compensation benefits.
II. The trial court erred in finding that the medical evidence was
insufficient to justify an award based on a mental or nervous
disorder. AFFIRMED.

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

JAMES RAY SCOTT
vs.
MA HANNA COMPANY,
    d/b/a COLONIAL RUBBER
    WORKS, INC., and RELIANCE
    INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

For Appellants:                     For Appellee:

Mr. Ralph I. Lawson                 Mr. David M. Hardee
Lawson & Lawson                     Hardee, Martin and Jaynes, P.A.
306 Church Ave.                     213 E. Lafayette
Dyersburg, Tennessee 38025-1207     Jackson, Tennessee 38301
                          

Judge: Martin

First Paragraph:

In this appeal, the employer questions the award of permanent partial
disability benefits as being excessive.  AFFIRMED AS MODIFIED.

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

MOLLY FAYE SMALLMAN
vs.
SHELBY WILLIAMS INDUSTRIES, INC.

Court:TSC - Workers Comp Panel

Attorneys:      

For the Appellant:                  For the Appellee:

Douglas R. Beier                    Joseph J. Doherty
Evans & Beier                       Wimberly, Lawson, Norton & Luhn
P.O. Box 1754                       Liberty Center
Morristown, TN 37816-1754           P.O. Box 1066
                                    Morristown, TN  37816-1066
                    
Judge: BYERS

First Paragraph:

The trial court below awarded plaintiff 17% permanent partial
disability to each arm.  Plaintiff appeals, arguing that the evidence
preponderates in favor of a higher award. AFFIRMED.

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

JAMES CLIFFORD TATUM
vs.
METHODIST HOSPITAL OF DYERSBURG

and             
SUE ANN HEAD, DIRECTOR OF   
    THE DIVISION OF WORKERS'
    COMPENSATION, TENNESSEE
    DEPARTMENT OF LABOR 
    SECOND INJURY FUND

Court:TSC - Workers Comp Panel

Attorneys:                          

For Appellant:                          For Appellee:

Ms. Sandra E. Keith                     Mr. Charles M. Agee, Jr.
Assistant Attorney General              Attorney-at-Law
Cordell Hull Bldg., 2nd Floor           P. O. Box 280
426 5th Ave., North                     Dyersburg, TN38025
Nashville, TN 37243

Judge: Martin

First Paragraph: 

The director of the Workers' Compensation Division of Tennessee
Department of Labor, as trustee for the Second Injury Fund (Second
Injury Fund), appeals from the decision of the trial court. JUDGMENTS
OF TRIAL COURT SET ASIDE; CASE REMANDED FOR NEW TRIAL.

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

YASUDA FIRE & MARINE  
INSURANCE COMPANY OF    
AMERICA
vs.
FRANCINE KUNTZ

Court:TSC - Workers Comp Panel

Attorneys:  

For Appellant:                          For Appellee:

Mary Sullivan Moore                     Phillip R. Newman
D. Brett Burrow                         Sarah Hardcastle Hardison
Brewer, Krause, Brooks & Mills          Manier, Herod, Hollabaugh 
Nashville, Tennessee                      & Smith     
                                        Nashville, Tennessee
                        

Judge: Loser

First Paragraph:

This appeal presents us with an issue involving venue in a workers'
compensation case. AFFIRMED.

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

GORDON BURKS
vs.
BELZ-WILSON PROPERTIES, 
(a join venture, comprised of
BELZ INVESTMENT COMPANY,
SPENCE L. WILSON, ROBERT A.
WILSON, KEMMONS WILSON, JR.,
CAROLE A. WILSON-WEST and
DOROTHY E. W. MOORE), BELZ
INVESTMENT COMPANY, INC., 
a corporation; BELZ INVESTMENT
COMPANY, a partnership comprised
of PHILLIP BELZ, JACK A. BELZ
and KEMMONS WILSON; 
WILBLETON GYMNASTICS,
INC., a corporation, and
PRIDE CONSTRUCTION COMPANY,
INC.

Court:TCA

Attorneys: 

Mark Ledbetter of Memphis
Dan T. Bing of Memphis
    For Plaintiff-Appellant

Richard Glassman and James F. Horner
Glassman, Jeter, Edward & Wade, P.C., of Memphis
    For Appellees, Belz-Wilson Properties                         

Judge: CRAWFORD

First Paragraph:

This is a negligence case involving the interpretation and application
of a release.  Plaintiff, Gordon Burks, appeals from the order of the
trial court granting summary judgment to defendants, Belz-Wilson
Properties  (a joint venture), Belz Investment Company (a
partnership), Spence L. Wilson, Robert A. Wilson, Kemmons Wilson, Jr.,
Carole A.Wilson-West, and Dorothy E. W. Moore. REVERSED AND REMANDED.

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

WAYNE ARLE CUNNINGHAM
vs.
DEPARTMENT OF SAFETY,
STATE OF TENNESSEE

Court:TCA

Attorneys:

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

Mr. Howard B. Barnwell, Jr.             Charles H. Burson
Chattanooga, Tennessee                  Attorney General and Reporter

                                        Rebecca Lyford
                                        Assistant Attorney General
                          

Judge: KOCH

First Paragraph:

This appeal involves a father's efforts to regain possession of his
1986 Corvette that was seized incident to his son's arrest for selling
marijuana to an undercover officer.  The Commissioner of Safety,
overruling an administrative law judge's decision to return the
automobile, determined that the father and the son co-owned the
Corvette and ordered its forfeiture subject to the father's and a
secured creditor's interests.  The Chancery Court for Davidson County
affirmed the forfeiture order, and the father appealed to this court. 
We have determined that the record does not contain substantial and
material evidence supporting the Commissioner's conclusion that the
son was the co-owner of his father's Corvette.  Accordingly, we
reverse the forfeiture order. REVERSED AND REMANDED.

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

BETTY S. FRAZIER
vs.
HERITAGE FEDERAL BANK FOR   
SAVINGS AND HERITAGE FEDERAL
BANK SHARES, INC., and now,
pursuant to a plan of merger,
FIRST AMERICAN CORPORATION  
and FIRST AMERICAN NATIONAL
BANK

Court:TCA

Attorneys:  

CECIL W. LAWS, Kingsport, for Plaintiff-Appellee.

JOHN B. PHILLIPS, JEFFREY S. NORWOOD and RAYMOND H. HIXSON, Jr.,
MILLER & MARTIN, Chattanooga, JOHN S. BRYANT and KAREN L. C. ELLIS,
BASS, BERRY & SIMS, PLC, Nashville, and WILLIAM T. GAMBLE, WILSON,
WORLEY, GAMBLE & WARD, P.C., Kingsport, for Defendants-Appellants.
                        
Judge: Franks

First Paragraph:

In this action for damages, the Chancellor determined that plaintiff's
employer had discriminated against plaintiff on the basis of age and
sex, and awarded damages pursuant to the Tennessee Human Rights Act,
(THRA) T.C.A. S4-21-101, et seq.   Defendants have appealed. AFFIRMED 
and REMANDED.

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

EDGAR HAROLD HARRIS, II
vs.
DOMINION BANK OF MIDDLE 
TENNESSEE and DOMINION  
BANKSHARES MORTGAGE CORP.

Court:TCA

Attorneys:   

H. ROWAN LEATHERS, III
RANDALL C. FERGUSON
MANIER, HEROD, HOLLABAUGH & SMITH
First Union Tower - Suite 2200
150 Fourth Avenue North
Nashville, Tennessee 37219
    Attorneys for Plaintiff/Appellee

CHARLES R. RAY
211 Third Avenue North
P. O. Box 198288
Nashville, Tennessee 37219-8288
    Attorney for Defendant/Appellant
                       

Judge: CANTRELL

First Paragraph:

The plaintiff, Edgar Harold Harris, sued the Dominion Bank of Middle
Tennessee for firing him because of his age.  He also sued Dominion
Bankshares Mortgage Group for refusing to hire him for the same
reason.  In each case the jury returned a verdict for the plaintiff
for lost pay and benefits to the date of trial and for past and future
humiliation and embarrassment.  On appeal the defendants argue that
the facts do not support the verdicts, that the verdicts award Mr.
Harris a double recovery, that it was error for the trial judge to
instruct the jury to return general verdicts, and that the trial
judge's charge was otherwise erroneous. REVERSED IN PART, MODIFIED AND
REMANDED.

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

DAWNE HEPP
vs.
JOE B'S, INC

Court:TCA

Attorneys:  

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

Frank J. Runyon                     Patrick J. McHale
Clarksville, Tennessee              Brentwood, Tennessee
                        

Judge: KOCH

First Paragraph:

This appeal involves a customer of a sports bar who was injured as a
result of a fight between other customers.  The customer filed suit in
the Circuit Court for Montgomery County against the sports bar and the
customer who provoked the fight.  The trial court granted a summary
judgment dismissing the claims against the sports bar, and the
customer appealed to this court.  We have determined that the summary
judgment was proper and, therefore, affirm the dismissal of the
customer's claims against the sports bar. AFFIRMED AND REMANDED.

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

THOMAS G. HONEYCUTT and wife    
FANNY M. HONEYCUTT
vs.
BOBBY JERALD PRICE and
wife BETTY J. PRICE

Court:TCA

Attorneys:   

DOUGLAS M. ANDERSON OF KNOXVILLE FOR APPELLANTS

THOMAS PRIVETTE, JR., OF KNOXVILLE FOR APPELLEES
                       

Judge: Goddard

First Paragraph:

Defendants Bobby Jerald Price and his wife, Betty J. Price, appeal a
judgment of the Chancery Court for Knox County wherein the Court fixed
the boundary line between property owned by them and property owned by
Plaintiffs Thomas G. Honeycutt and his wife, Fanny M. Honeycutt, in
accordance with the Honeycutts' insistence. AFFIRMED AND REMANDED.

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

THERESA HYDE
vs.
STATE OF TENNESSEE, THE 
UNIVERSITY OF TENNESSEE, and
THE UNIVERSITY OF TENNESSEE 
AT CHATTANOOGA

Court:TCA

Attorneys:     

LAWRENCE H. PUCKETT OF CLEVELAND FOR APPELLANT

F. R. EVANS OF CHATTANOOGA FOR APPELLEES
                     

Judge: Goddard

First Paragraph:

This case involves a personal injury by the Plaintiff/Appellant,
Theresa Hyde, at a concert held at the University of Tennessee
Chattanooga Arena. AFFIRMED AND REMANDED.

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

EDWARD RAY JOHNSON, SR.
vs.
TOMMYE KAYE JOHNSON

Court:TCA

Attorneys:     

STUART BRIAN BREAKSTONE
LAW OFFICE OF DON OWENS, P.A.
Memphis, Tennessee
Attorney for Appellant

ASA H. HOKE
Memphis, Tennessee
Attorney for Appellee                     


Judge: HIGHERS

First Paragraph:

In this divorce case, Tommy Kaye Johnson ("Wife") filed for divorce
from Edward  Ray Johnson ("Husband") on the grounds of inappropriate
marital conduct and irreconcilable differences.  The trial court
granted both parties a divorce and ordered Husband to pay $800.00 per
month in rehabilitative alimony for eighteen months.  The trial court
awarded custody of the parties' three minor children to the Husband
and ordered Wife to pay child support.  Wife was awarded the Hadley
Street duplexes, and Husband was awarded the Limewood residence, the
Oak Park property and the Clayphil property.  Each party was allowed
to keep all items of personal property currently held in their
possession. The trial court equally divided the parties' account at
Boatman's Bank which contained the parties' remaining fire insurance
proceeds.  The  trial court declined to award Wife a portion of the
Husband's retirement account and ordered each party to pay their own
attorney fees. Husband appeals the judgment of the court below arguing
that the trial court erred in its division of the real property, in
its division of the fire insurance proceeds, and in its award of
rehabilitative alimony. AFFIRMED IN PART AND REVERSED IN PART.

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

WILLIE LOMAX and wife
BOBBIE LOMAX
vs.
HEADLEY HOMES, a Tennessee  
General Partnership composed of 
Dennis Headley and Betty Headley,   
    
AND 

LEADER FEDERAL BANK FOR 
SAVINGS and GEORGE E. BURTON

Court:TCA

Attorneys: 

J. Alan Hanover,
Jeffrey S. Rosenblum,
HANOVER, WALSH, JALENAK & BLAIR, PLLC, Memphis, Tennessee
Attorney for Plaintiffs/Appellants.

Robert E. Craddock, Jr.,
O. John Norris, III,
WYATT, TARRANT & COMBS, Memphis, Tennessee
Attorney for Defendants/Appellees Union Planters National Bank and
George E. Burton.

Judge: FARMER

First Paragraph:

Plaintiffs Willie and Bobbie Lomax appeal the trial court's order
entering summary judgment in favor of Defendants/Appellees Leader
Federal Bank for Savings and George E. Burton.  The trial court
apparently granted the Defendants' motion for summary judgment based
upon the provisions of the Construction Loan Agreement entered into
between the Lomaxes and Leader Federal.  We affirm the trial court's
order as to Defendant George E. Burton.  With regard to Defendant
Leader Federal, however, we reverse and remand for further
proceedings. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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

GERALD L. MARTIN and wife
JUDY A. MARTIN
vs.
PAUL M. TRICE

Court:TCA

Attorneys:  

JERRY SHATTUCK OF CLINTON FOR APPELLANT

ROGER L. RIDENOUR OF CLINTON FOR APPELLEES
                        

Judge: Goddard

First Paragraph:

We granted an interlocutory appeal pursuant to Rule 9 of the Tennessee
Rules of Appellate Procedure to determine if the Trial Court was
correct in allowing the Plaintiffs, Gerald L. Martin and his wife,
Judy A. Martin, to amend their complaint to seek damages for Mrs.
Martin's personal injuries in addition to a loss of consortium claim
she sought in the original complaint. AFFIRMED AND REMANDED.

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

MARILYN MORGAN
vs.
VELMA McCRORY

Court:TCA

Attorneys: 

COREY B. TROTZ
Memphis, Tennessee
Attorney for Appellant

LOUIS F. ALLEN
ROBERT B. C. HALE
WARING COX, PLC
Memphis, Tennessee
Attorneys for Appellee                         

Judge: HIGHERS

First Paragraph:

In this slip and fall case, Marilyn Morgan ("Plaintiff") filed suit
against Velma McCrory ("Defendant") for injuries sustained from a fall
at Defendant's apartment.  The trial court granted the Defendant's
motion for a directed verdict at the close of Plaintiff's proof
holding that Plaintiff's negligence was at least equal to that of the
Defendant because the Plaintiff failed to traverse an alternative
"unobstructed, normal pathway which would have been only slightly a
few feet further out of her way than the other direction."  Plaintiff
appeals the judgment of the court below arguing that the trial court
erred in granting the Defendant's motion for a directed verdict.
AFFIRMED.

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

JOSEPH F. MYERS, and
CARL D. KLIMEK d/b/a
MK ASSOCIATES, 
vs.
PICKERING FIRM, INCORPORATED

Court:TCA

Attorneys:

Richard M. Carter and Scott T. Beall
    Martin, Tate, Morrow & Marston, P.C., of Memphis
    For Plaintiffs-Appellants

Jerry O. Potter and William B. Walk, Jr.
    The Hardison Law Firm, P.C.
    For Defendant-Appellee                            

Judge: CRAWFORD

First Paragraph:

This appeal involves a suit for libel and for procurement of breach of
contract.  AFFIRMED AS MODIFIED AND REMANDED.

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

IN RE: THE ESTATE OF
SHERMAN OVERTON,
    Deceased
        
BETTY OVERTON
vs.
MAE OLMSTEAD, MATTIE GOAD,  
ERVIE OVERTON, GLENNIS PAYNE,
ARLIE OVERTON, and ARVIL
OVERTON

Court:TCA

Attorneys:   

JAMES FRANK WILSON OF WARTBURG FOR APPELLANTS

JOHNNY V. DUNAWAY OF LaFOLLETTE FOR APPELLEE
                       

Judge: Goddard

First Paragraph:

Certain of the children and next of kin of Sherman Overton appeal a
judgment of the Probate Division of the General Sessions Court for
Scott County which first denied their motion to dismiss the petition
for probate filed by Betty Overton, one of their siblings, on the
ground that such an action was barred by the statute of limitations. 
The Probate Judge thereafter found that it was appropriate the estate
be probated.  He then granted letters of administration to Sidney R.
Seals, a licensed attorney, who, according to the Trial Court, was a
disinterested third party. AFFIRMED AND REMANDED.

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

DOROTHY PATTERSON
vs.
GERALD B. AMOS, et ux., 
WILMA J. AMOS

Court:TCA

Attorneys:     

For Appellants:                         For Appellee:

W. LANDIS TURNER                        TOMMY E. DOYLE
Keaton, Turner & Spitzer                Linden, Tennessee
Hohenwald, Tennessee                     

Judge: Susano

First Paragraph:

This case involves a dispute regarding the ownership of real property
fronting on Tom's Creek in Perry County.  The trial court granted the
plaintiff summary judgment, finding that the plaintiff's deed conveyed
to her a strip of land fronting 35 feet on the waters of Tom's Creek. 
The defendants, adjacent property owners, appealed, contending that
there are disputed material facts that make summary judgment
inappropriate.  We agree. VACATED AND REMANDED.

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

JAMES DOYLE RUST, II
vs.
KAREN RUTH WAX RUST GERBMAN

Court:TCA

Attorneys: 

RONALD L. STONE
6th Floor, 211 Printers Alley
Nashville, Tennessee 37201
    Attorney for Plaintiff/Appellant

BRAD W. HORNSBY (At trial)
JAY B. JACKSON (On appeal)
BULLOCK, FLY & McFARLIN
301 N. Spring Street
P. O. Box 398
Murfreesboro, Tennessee 37133-0398
    Attorney for Defendant/Appellee                         

Judge: CANTRELL

First Paragraph:

Mr. Rust experienced a dramatic decline in income after his divorce,
and petitioned for a reduction in his child support obligation. 
Following a lengthy course of litigation, the trial court reduced his
obligation from $1,500 per month to $690 per month, and made the
reduction retroactive to the date he petitioned for the modification.
AFFIRMED AND REMANDED.

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

ELENA TURNER SMITH
vs.
DAVID E. PARTRIDGE and
BEVCO PARKING COMPANY

Court:TCA

Attorneys: 

SHANNON D. FAULKNER, III, OF KNOXVILLE FOR APPELLANT
WILLIAM A. YOUNG and MARY ELIZABETH MADDOX OF KNOXVILLE FOR APPELLEES

Judge: Goddard

First Paragraph:

This is an appeal from a judgment pronounced on a jury verdict
dismissing a suit by Plaintiff Elena Turner Smith against Defendants
David E. Partridge and his employer, Bevco Parking Company.  The suit
sought damages as a result of a vehicular accident occurring on
September 28, 1990, about 9:00 a.m.  The jury verdict found the fault
in the accident should be attributed 75 percent to Ms. Smith and 25
percent to Mr. Partridge.  The jury's verdict was implicitly approved
by the Trial Court in overruling the motion for a new trial, which
raised the preponderance of the evidence issue. AFFIRMED AND REMANDED.

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

STATE OF TENNESSEE, DHS,
and Assignee of:
STACY PETTUS
vs.
ROBERT LEE SMITH

Court:TCA

Attorneys: 

ROBERT LEE SMITH, Pro Se

CHARLES W. BURSON, Attorney General & Reporter, and KIMBERLY M. FRAYN,
Assistant Attorney General, NASHVILLE, FOR DEPARTMENT OF HUMAN
SERVICES

Judge: Goddard

First Paragraph:

Robert Lee Smith appeals judgment of the Anderson County Juvenile
Court which ordered him to pay arrearage of child support payments,
which were originally due Stacy Pettus, to the State of Tennessee in
the amount of $38,354, payable at an amount of $40.00 per month.  The
issues that Mr. Smith, a pro se Appellant, raises on appeal are not
entirely clear from his brief. AFFIRMED AND REMANDED.

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

CARL WILLIAM STROUD, JR.
vs.
SANDRA FAYE STROUD

Court:TCA

Attorneys:    

Paul Bates; Boston, Bates & Holt of Lawrenceburg
    For Appellee

Robert D. Massey of Pulaski
    For Appellant                      

Judge: CRAWFORD

First Paragraph:

This is a child custody case.  Defendant, Sandra Faye Stroud (Mother),
appeals from the order of the trial court granting the petition to
change custody filed by the plaintiff, Carl William Stroud, Jr.
(Father).  VACATED AND REMANDED.

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

JON H. TATE
vs.          
KENNETH MASHBURN

Court:TCA

Attorneys:   

GEORGE F. LEGG and CHADWICK B. TINDELL OF KNOXVILLE FOR APPELLANT

J. REED DIXON OF SWEETWATER FOR APPELLEE
                       

Judge: Goddard

First Paragraph:

In this real estate contract dispute over the return of the Buyer's
earnest money, Jon H. Tate, Buyer of real property, appeals the Monroe
Chancery Court's decision to grant summary judgment in his favor for
only $10,000  plus prejudgment interest as to earnest money that he
paid to the Seller, Kenneth Mashburn.  VACATED AND REMANDED.

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

WINDON H. TAYLOR and
SARAH A. TAYLOR
vs.
T? OFFICE EQUIPMENT, INC.,  
JERALD W. NICHOLS and   
GAYLE J. NICHOLS

Court:TCA

Attorneys:      

For Appellants                      For Appellees

LARRY L. CRAIN                      LOUIS W. OLIVER, III
Brentwood, Tennessee                Hendersonville, Tennessee
                    

Judge: Susano

First Paragraph:

Windon H. Taylor and his wife, Sarah A. Taylor (collectively "the
Taylors"), sued T? Office Equipment, Inc. (T?) and Jerald W. Nichols
and his wife, Gayle J. Nichols (collectively "the Nichols"), alleging
that the defendants had defaulted on a promissory note.  The trial
court found that a default had occurred.  It then held that the
Nichols were obligated under the note to pay $11,960.13 in attorney's
fees.  AFFIRMED IN PART VACATED IN PART REMANDED.

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

TRADE SHOW NETWORK, INC.
vs.
TANNER & ASSOCIATES AND 
MIKE TANNER, individually

Court:TCA

Attorneys:   

W. CARL SPINING
Third Floor, Noel Place
200 Fourth Avenue North
Nashville, TN 37219-8985
    Attorney for Plaintiff/Appellee

G. THOMAS NEBEL
JOHN B. CARLSON
Suite 1425, First American Center
315 Deaderick Street
Nashville, TN 37238-1425
    Attorneys for Defendants/Appellants                       

Judge: CANTRELL

First Paragraph:

In this action to domesticate a Georgia judgment, the trial judge
refused to consider the judgment debtor's answer and counterclaim
because they were filed late.  We hold that under the circumstances of
this case the judgment debtor should have been allowed to file the
answer and counterclaim, but that the answer did not raise any defense
to the foreign judgment.  Therefore, we affirm the order domesticating
the Georgia judgment and remand the cause for consideration of the
counterclaim. AFFIRMED IN PART; REVERSED IN PART: AND REMANDED.

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

DEBORAH TUGGLE
vs.
SHELBY COUNTY GOVERNMENT,
and JAMES BROWN, In His Official
Capacity as Executive Director of
OAKVILLE HEALTH CARE CENTER

Court:TCA

Attorneys:      

CARROLL C. JOHNSON
Memphis, Tennessee
Attorney for Defendants/Appellants

JOEDAE L. JENKINS
Memphis, Tennessee
Attorney for Plaintiff/Appellee                    

Judge: TOMLIN

First Paragraph:

In this workers compensation case, Deborah Tuggle ("Plaintiff") seeks
benefits for injuries sustained while weighing a patient at the
Oakville Health Care Center, an agency of Shelby County Government
("Defendant").  The trial court awarded the Plaintiff $41,463.80 based
upon a forty-five percent permanent partial disability rating to the
body as a whole; $4,895.29 based upon a temporary total disability of
21.2 weeks; $1,329.00 for past medical expenses; and all future
medical expenses reasonably incurred by Plaintiff for treatment of her
cervical and lumbar strain and bilateral carpal tunnel syndrome. The
Defendants appeal the judgment of the trial court arguing that the
Plaintiff did not sustain any permanent disability which arose out of
and in the course of her employment; and, alternatively, if the
Plaintiff did sustain any permanent disability arising out of and in
the course of her employment, then the trial court's award of damages
was excessive. AFFIRMED.

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

JIM VOSS
vs.
SHELTER MUTUAL INSURANCE COMPANY,
SHELTER GENERAL INSURANCE COMPANY,
and SHELTER LIFE INSURANCE COMPANY
OF COLUMBIA MISSOURI

Court:TCA

Attorneys: 

GERALD F. EASTER & KAREN R. CICALA, Memphis, Attorneys for Plaintiff.

JAMES E. CONLEY and JOHN H. DOTSON, Thomason, Hendrix, Harvey, Johnson
& Mitchell, Memphis, Attorneys for Defendants.
                         

Judge: TOMLIN

First Paragraph:

Jim Voss (hereinafter "Voss" or "Plaintiff") filed suit in the Circuit
Court of Shelby County against Shelter Mutual Insurance Company,
Shelter General Insurance Company, and Shelter Life Insurance Company
of Columbia, Missouri, (hereinafter "Shelter" or "Defendant") seeking
damages allegedly caused by a breach of contract, wrongful termination
of agency agreement, retaliatory discharge, and libel and slander. 
The trial court granted summary judgment in favor of Shelter on all
claims except that of retaliatory discharge.  The case was tried to a
jury, which resulted in a verdict in favor of plaintiff in the amount
of $165,077.00.  The trial court overruled Shelter's Motion for a
Judgment NOV, or In the Alternative, for a New Trial.  Shelter has
raised two issues for our consideration on appeal: Whether the trial
court (1) erred in failing to grant its  Motion for a Directed Verdict
at the close of plaintiff's proof as well as at the close of all the
proof; and (2) in failing to properly charge the jury as to the law of
retaliatory discharge.  For the reasons hereinafter stated we reverse
the judgment of the trial court and dismiss. REVERSED AND DISMISSED.

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

DAVID L. WASHINGTON
vs.
DEPARTMENT OF CORRECTION,
ET AL

Court:TCA

Attorneys: 

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

David L. Washington                     Charles W. Burson
Pro Se                                  Attorney General and Reporter

                                        Merrilyn Feirman
                                        Assistant Attorney General              

Judge: KOCH

First Paragraph:

This appeal involves a prisoner's challenge to the Department of
Correction's calculation of his sentence reduction credits.  After
exhausting his departmental remedies, the prisoner filed a declaratory
judgment action in the Chancery Court for Davidson County.  The trial
court granted the Department's motion for summary judgment and
dismissed the complaint.  We have determined that the record does not
support granting a summary judgment and, accordingly, vacate the
judgment pursuant to Tenn. Ct. App. R. 10(b). VACATED AND REMANDED.

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

CONNIE A. WILLIAMS
vs.
MICHAEL C. WILLIAMS

WITH OPINION DISSENTING IN PART AND CONCURRING IN THE RESULT

Court:TCA

Attorneys:          

For the Respondent/Counter          For the Petitioner/
-Petitioner/Appellant:              Counter-Respondent/ Appellee:

Rankin P. Bennett                   Craig P. Fickling        
Cookeville, Tennessee               Cookeville, Tennessee
                

Judge: LILLARD

First Paragraph:

This is a child custody case.  In 1991, the parties divorced pursuant
to a marital dissolution agreement.  Under the agreement, the mother,
Connie A. Montgomery (formerly Williams), was awarded custody of the
parties' sons, with visitation to the father, Michael C. Williams. 
Subsequently, Mr. Williams filed a petition for change of custody,
which was granted by the trial court.  We find insufficient change of
circumstances to justify a change of custody and reverse the decision
of the trial court. REVERSED IN PART, AFFIRMED IN PART AND REMANDED.

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

STATE OF TENNESSEE
vs.
ROBERT HARRISON BLEVINS

Court:TCCA

Attorneys:    

For the Appellant:                  For the Appellee:

David F. Bautista                   Charles W. Burson
District Public Defender            Attorney General of Tennessee
     and                                and             
Debbie Huskins                      Sandy R. Copous
Asst District Public Defender       Asst Attorney General of Tennessee     
142 East Market St.                 450 James Robertson Parkway     
Johnson City, TN 37601              Nashville, TN 37243-0493
(AT TRIAL)
                                    David E. Crockett
Laura Rule Hendricks                District Attorney General
606 W. Main Street                  Route 19, Box 99
P.O. Box 84                         Johnson City, TN 37601
Knoxville, TN 37901-0084                and
     and                            Kent Garland
District Public Defender's Office   Asst District Attorney General
 for the 1st Judicial District      P.O. Box 38
142 East Market Street              Jonesborough, TN 37659
Johnson City, TN 37601
(ON APPEAL)                      

Judge: Tipton

First Paragraph:

The defendant, Robert Harrison Blevins, appeals as of right from a
jury conviction in the Washington County Criminal Court for burglary,
a Class E felony, and vandalism of property valued under five hundred
dollars, a Class A misdemeanor.  He was sentenced as a career offender
to six years in the custody of the Department of Correction for the
felony and to eleven months and twenty-nine days for the misdemeanor
to be served concurrently, but consecutively to previously imposed
sentences.  The trial court also imposed fines totaling five thousand,
five hundred dollars. AFFIRMED.

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

STATE OF TENNESSEE
vs.
PATRICIA CAROL CHERRY

Court:TCCA

Attorneys:          

FOR THE APPELLANT:                  FOR THE APPELLEE:

MICHAEL R. JONES                    CHARLES W. BURSON
District Public Defender            Attorney General & Reporter
109 S. Second St.       
Clarksville, TN 37040               GEORGIA BLYTHE FELNER
                                    Counsel for the State
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493    

                                    JOHN W. CARNEY, JR.
                                    District Attorney General
                                    204 Franklin St. Ste. 200
                                    Clarksville, TN. 37040-3420
    
                                    DENT MORRISS
                                    Asst. District Attorney General
                                    500 South Main St.
                                    Springfield, TN 37172
                                    
Judge: WITT 

First Paragraph:

The defendant, Patricia Carol Cherry, was convicted in a bench trial
in the Robertson County Circuit Court of driving under the influence,
a Class A misdemeanor,  and reckless driving, a Class B misdemeanor. 
On the first count, the trial judge sentenced Cherry to serve eleven
months and twenty-nine  days and to spend twenty-five hours in public
service.  He suspended her driving privileges for one year.   For
reckless driving, she received a six-month sentence concurrent to the
sentence for driving under the influence.  The trial judge ordered her
to serve four days on two consecutive weekends and suspended the
remainder of her sentences.  In this direct appeal, the defendant
challenges the sufficiency of the evidence. AFFIRMED.

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

STATE OF TENNESSEE
vs.
DARYL CONNER

Court:TCCA

Attorneys:

For the Appellant:                  For the Appellee:

MELANIE E. TAYLOR                   CHARLES W. BURSON
and                                 Attorney General and Reporter
WILLIAM JOHNSON 
Attorneys at Law                    MICHAEL J. FAHEY, II
50 Front Street, Suite 1150         Assistant Attorney General  
Memphis, TN  38103                  Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    WILLIAM GIBBONS
                                    District Attorney General

                                    DAVID SHAPIRO
                                    GLEN BAITY
                                    Asst. District Attorneys General
                                    Criminal Justice Complex
                                    Third Floor, 201 Poplar
                                    Memphis, TN  38103                          

Judge: Hayes

First Paragraph:

The appellant, Daryl Conner, was convicted by a Shelby County jury of
robbery.  The sole issue presented on appeal is whether the evidence
adduced at trial is sufficient to support the jury's verdict.
AFFIRMED.

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

STATE OF TENNESSEE
vs.
DANNY RAY DORRIS

Court:TCCA

Attorneys:  

For the Appellant:                  For the Appellee:

David Allen Doyle                   Charles W. Burson
District Public Defender            Attorney General of Tennessee
     and                                and             
Steven F. Glaser                    Peter Coughlan
Assistant Public Defender           Asst Attorney General of Tennessee 
117 East Main Street                450 James Robertson Parkway     
Gallatin, TN 37066                  Nashville, TN 37243-0493

                                    Lawrence Ray Whitley
                                    District Attorney General
                                        and
                                    Dee Gay
                                    Asst District Attorney General
                                    113 East Main Street
                                    Gallatin, TN 37066                        

Judge: Tipton

First Paragraph:

The defendant, Danny Ray Dorris, appeals as of right upon reservation
of a certified question of law from the Sumner County Criminal Court. 
Upon his plea of guilty, the defendant was convicted of felonious
possession with the intent to sell marijuana and sentenced to two
years, with ninety days of his sentence to be served in jail and the
remainder of his sentence to be served in a community corrections
program.  The case arose from a search of the defendant's residence
pursuant to a warrant.  AFFIRMED.

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

STATE OF TENNESSEE
vs.
FRANKIE HILL

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

ROBERT S. PETERS                    CHARLES W. BURSON
Swafford, Peters & Priest           Attorney General & Reporter
100 First Avenue, S.W.
Winchester, TN  37398               MARK H. CHEN
                                    Assistant Attorney General
                                    Civil Rights & Claims Division
                                    404 James Robertson Pkwy.
                                    Ste. 2000
                                    Nashville, TN 37243-0488

                                    C. MICHAEL LAYNE
                                    District Attorney General
                            
                                    STEPHEN E. WEITZMAN
                                    Asst District Attorney General
                                    P.O. Box 147
                                    Manchester, TN  37355                        

Judge: WITT

First Paragraph:

Appellant, Frankie Hill, appeals his conviction of driving while
intoxicated second offense.  In this direct appeal, appellant's sole
issue is whether the evidence presented at his jury trial in Coffee
County Circuit Court was insufficient as a matter of law to support
his conviction.  Upon review of the record before us, we affirm the
judgment of conviction of the trial court. AFFIRMED.

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

RICHARD GARY HORTON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

For the Appellant:                  For the Appellee:

Robert N. Meeks                     Charles W. Burson
3505 Brainerd Road                  Attorney General of Tennessee
P.O. Box 8086                           and             
Chattanooga, TN 37414               Sarah M. Branch
                                    Counsel for the State                               
                                    450 James Robertson Parkway     
                                    Nashville, TN 37243-0493

                                    William H., Cox, III
                                    District Attorney General
                                        and
                                    Bates Bryan, Jr.
                                    600 Market Street, Suite 310
                                    Chattanooga, TN 37402                        

Judge: Tipton

First Paragraph:

The petitioner, Richard Gary Horton, appeals as of right from the
Hamilton County Criminal Court's dismissal of his petition for
post-conviction relief.  The petitioner was convicted of attempted
second degree murder and received a ten-year sentence.  This court
affirmed the petitioner's conviction.  State v. Richard Gary Horton,
No. 03C01-9306-CR-00172, Hamilton County (Tenn. Crim. App. Dec. 2,
1993), app. denied (Tenn. Apr. 4, 1994).  On March 27, 1995, the
petitioner filed a pro se post-conviction petition.  Counsel was
appointed and filed an amended petition that alleges that the
petitioner's counsel was ineffective for failing to investigate the
facts of the case and that the petitioner's due process and equal
protection rights were violated because he was initially indicted for
reckless endangerment but was indicted for attempted first degree
murder in retaliation for his refusal to plead guilty.  The trial
court dismissed the petition after an evidentiary hearing, concluding
that the petitioner failed to establish that he received the
ineffective assistance of counsel or that the attempted first degree
murder indictment was the result of prosecutorial vindictiveness.  The
sole issue for our review is whether the trial court erred by denying
the petition on the prosecutorial vindictiveness ground.  AFFIRMED.

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

STATE OF TENNESSEE
vs.
PENELOPE R. KARNES

Court:TCCA

Attorneys:                          

FOR THE APPELLANT:                  FOR THE APPELLEE:

COMER L. DONNELL                    CHARLES W. BURSON
District Public Defender            Attorney General and Reporter

KAREN G. CHAFFIN                    M. ALLISON THOMPSON
Assistant Public Defender           Assistant Attorney General
213 North Cumberland Street         450 James Robertson Parkway
P.O. Box 888                        Nashville, TN 37243-0493
Lebanon, TN 37087
                                    TOM P. THOMPSON, JR.
                                    District Attorney General

                                    DOUG HALL
                                    Asst District Attorney General
                                    111 Cherry Street
                                    Lebanon, TN 37087
Judge: RILEY

First Paragraph:

The appellant, Penelope R. Karnes, appeals the sentences imposed by
the Criminal Court of Wilson County following her guilty plea to two
(2) counts of vehicular assault.  The trial court ordered her to serve
four (4) years on each count in the Tennessee Department of Correction
to be served consecutively.  On appeal, Karnes claims that the trial
court erred by: (1) imposing excessive sentences; (2) denying
probation; and (3) ordering that the sentences be served
consecutively.  We affirm the judgment of the trial court. AFFIRMED.

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

MARVIN ANTHONY MATHEWS
vs.
STATE OF TENNESSEE

Court:TCCA

First Paragraph:

This matter is before the Court upon the state's motion, pursuant to
Rule 20, Rules of the Court of Criminal Appeals, to affirm the
judgment of the trial court in this case by order rather than formal
opinion.  The above-captioned case represents an appeal from the trial
court's denial of the petitioner's petition for writ of habeas corpus.
 The record was filed on January 17, 1997, and the petitioner filed
his brief on March 27, 1997.  The petitioner is currently serving a
life sentence, having been found to be a habitual criminal, pursuant
to T.C.A. S 39-1-806 (repealed 1989), in 1988.  The petitioner
contends that this statute violates his constitutional right to due
process.  He also contends that the reasonable doubt instruction used
during trial is unconstitutional.

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

STATE OF TENNESSEE
vs.
WILLIE C. TAYLOR

Court:TCCA

First Paragraph:

The appellant, Willie C. Taylor, has filed a petition requesting a
rehearing of the opinion filed in this cause on April 2, 1997.  The
appellant contends that his sentence was illegal and that his guilty
plea should be set aside.  In this petition, the appellant now states
that the Court failed to consider certain facts included in the
record.  However, the appellant would have this Court arrive at
conclusions and make findings of fact which were not found by the
trial court.

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

STATE OF TENNESSEE
vs.
KENNETH L. WARREN

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

JOHN H. HENDERSON                   CHARLES W. BURSON
District Public Defender            Attorney General & Reporter

DIANE CROSIER                       PATRICIA C. KUSSMANN
Assistant Public Defender           Assistant Attorney General
P.O. Box 68                         450 James Robertson Parkway
Franklin, TN 37065-0068             Nashville, TN 37243-0493    
                    
                                    JOSEPH D. BAUGH
                                    District Attorney General
                    
                                    JOHN BARRINGER
                                    Assistant District Attorney
                                    P.O. Box 937
                                    Franklin, TN 37065-0937                         

Judge: WITT

First Paragraph:

The defendant, Kenneth L. Warren, pleaded guilty in Williamson County
Circuit Court to one count of driving under the influence, fourth
offense, and one count of driving on a revoked license.   Both are
Class A misdemeanors.  The trial court sentenced the defendant to
serve eleven months and twenty-nine days for the fourth offense of
driving under the influence, assessed a fine of $1,100, and revoked
his driver's license for five years.  On the second count, the trial
court imposed an additional eleven months and twenty-nine days to be
served consecutively to the sentence in the first count.  However, the
trial court suspended the second sentence and ordered the defendant to
serve the time under intensive probation.  As a condition of his
probation, he must attend at least 90 Alcoholics Anonymous meetings
within the first 90 days of his release from custody.  AFFIRMED
REMANDED IN PART.

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

STATE OF TENNESSEE
vs.
DONNA R. WHALEY

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

Jerry H. Summers                    Charles W. Burson
Jimmy F. Rodgers, Jr.               Attorney General & Reporter 
Attorneys at Law
500 Lindsay Street                  Sandy R. Copous
Chattanooga, TN 37402-1490          Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    William H. Cox III
                                    District Attorney General

                                    John Bobo, Jr.  
                                    Asst District Attorney General
                                    City and County Building
                                    600 Market Street
                                    Chattanooga, TN 37402                        

Judge: SUMMERS

First Paragraph:

The appellant, Donna R. Whaley, was convicted of driving under the
influence (DUI), second offense.  She was sentenced to 11 months 29
days with probation consideration after 120 days service.   The trial
court ordered the suspension of her driver's license for two years and
the payment of a $510 fine.  She appeals. REVERSED AND REMANDED.

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

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