TBALink Opinion-Flash

June 4, 1997 -- Volume #3 -- Number #57

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

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George Dean
TBALink Chief Editor


DEBRA MICHELLE LAMBERT
vs.
FAMOUS HOSPITALITY, INC.,   
a/k/a A.S. HOSPITALITY a/k/a
M W M DEXTER, INC. and  
AMERICAN MOTORIST INSURANCE COMPANY

Court:TSC

Attorneys:

For Plaintiff-Appellee:                 For Defendants-Appellants:  

Joseph Michael Cook                     Carol Mills Hayden
Memphis, TN                             Memphis, TN                           

Judge: DROWOTA

First Paragraph:

In this workers' compensation action, the employer, Famous
Hospitality, Inc., defendant-appellant, has appealed from a judgment
of the Circuit Court of Shelby County finding that the employee, Debra
Lambert, plaintiff-appellee, sustained a 60 percent permanent
impairment to the whole body due to a work-related shoulder injury. 
The trial court also directed the employer to pay various medical and
litigation related expenses incurred by the employee, but did not
require the employer to pay for future medical treatment by doctors
that had been selected by the employee and who had treated her before
trial.  The Special Workers' Compensation Appeals Panel, upon
reference for findings of fact and conclusions of law pursuant to
Tenn. Code Ann. S 50-6-225(e)(5), affirmed the trial court. 
Thereafter, the employer filed a motion for full Court review of the
Panel's decision pursuant to Tenn. Code Ann. S50-6-225(e)(5)(B).  We
granted the motion to determine whether the employee should have been
authorized to seek future medical treatment, at the employer's
expense, from doctors selected by her who had treated her injuries. 
After carefully examining the record before us and considering the
relevant authorities, we affirm the trial court's judgment except to
the extent that the judgment does not authorize future medical
treatment by the employee's treating physicians at the employer's
expense. JUDGMENT OF TRIAL COURT AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED.

URL:http://www.tba.org/tba_files/TSC/LAMBERTD_OPN.WP6
Opinion-Flash

JANTICE L. WEST
vs.
NASHVILLE TENT & AWNING
COMPANY, INC. and GENERAL
ACCIDENT INSURANCE COMPANY

Court:TSC

First Paragraph:

This case is before the Court upon a motion for review pursuant to 
Tenn. Code Ann. S 50-6-225(e)(5)(B), the entire record, including the
order of referral to the Special Workers' Compensation Appeals Panel,
and the Panel's Memorandum Opinion affirming the dismissal of the
plaintiff's claim for workers' compensation benefits on the grounds
that it was untimely under the statute of limitations.

URL:http://www.tba.org/tba_files/TSC/WESTJ_JDG.WP6
Opinion-Flash

CARL STEWART
vs.
CITY OF JOHNSON CITY, TENNESSEE

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:                      For the Appellees:

John Rambo                              Robert J. Jessee
Herrin, Booze & Rambo                   Jessee & Jessee
515 E. Unaka Ave.                       412 W. Unaka Ave.
Johnson City, TN 37601                  P.O. Box 997
                                		Johnson City, TN  37605                         

Judge: BYERS

First Paragraph:

The trial court found the plaintiff had sustained a 60% permanent
partial disability as a result of an industrial injury. AFFIRMED.

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

AMERICAN STEINWINTER 
INVESTOR GROUP, FOR & ON
BEHALF OF AMERICAN 
STEINWINTER, INC.
vs.
AMERICAN STEINWINTER, INC.
vs.
SALVATORE STALLONE and
CLAIRE POPPLER
WALTER C. PRESSLEY

Court:TCA

Attorneys:

Roland M. Lowell #3874                  David Weed
2300 First American Center              # 2900, Third Natl. Fin. Cntr.
Nashville, TN 37238-2075                424 Church Street
ATTORNEY FOR PLAINTIFFS/APPELLEES       Nashville, TN 37219
                              
                                        Keith Jordan                                              
                                        222 Second Ave N, Ste. 360M
                                        Nashville, TN 37201
                                        ATTORNEYS FOR                                     
                                        RECEIVER/APPELLEE
William W. Burton #3237
Daniel, Burton & Associates             Walter C. Pressley
401 W. Main, P.O. Box 960               1219 Franklin Road
Murfreesboro, TN 37133-0960             Brentwood, TN 37024
ATTORNEY FOR DEFENDANTS/APPELLANTS      CROSS-PLAINTIFF/COUNTER 
Salvatore Stallone and Claire Poppler   DEFENDANT/APPELLANT/PRO SE                          

Judge: TODD

First Paragraph:

This appeal presents a most complicated and factually disputed series
of dealings involving numerous parties. The briefs, with
contradictions present the background of the controversy as follows:
Salvatore Stallone was the principal in a Utah Corporation, originally
named Bronco T. Mining, Inc., but subsequently and successively named
Stallone American, Limited, Stallone McComb, Incorporated, and
finally, American Steinwinter, Inc.  The last name was adopted to
pursue a venture involving the marketing of a novel truck designed by
a German firm named Steinwinter International. Neither Steinwinter,
International, nor American Steinwinter, Inc., were made parties to
this suit, but the assets of American Steinwinter, Inc., were attached
and are being liquidated by a receiver appointed in these proceedings.
AFFIRMED AND REMANDED.

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

ERNEST F. BURKE, DANIEL NEWMAN,
JOHN H. "TOMMY" KERKELES, KARL
THOMPSON, STEVE BEECH
vs.
THE TENNESSEE WALKING HORSE 
BREEDERS' & EXHIBITORS' ASSOC. and  
PHIL SNODGRASS, C.L. BAIRD, SR., NEIKA  
WILLIAMS, JUDITH BURGESS, MARIETTA  
GAMBRELL, PAMELA REBAND, W. DAVID   
LANDRUM, JOYCE MORRIS, CHARLES
CLEGHORN, CARROLL BENEDICT, 
ROBERT CHERRY

Court:TCA

Attorneys:    

ROBERT G. WHEELER, JR., ESQ.
Lewis, King, Krieg, Waldrop & Catron, P.C.
P.O. Box 198615
Nashville, TN
ATTORNEY FOR PLAINTIFF/APPELLANT

DIANE M. SEGROVES, ESQ.
Bobo, Hunt & Bobo
P.O. 169
Shelbyville, TN
ATTORNEY FOR DEFENDANTS/APPELLEES                      

Judge: TODD

First Paragraph:

The captioned plaintiff's have appealed from a summary judgment
dismissing their suit to invalidate an election of a board of
directors of Tennessee Walking Breeders and Exhibitor's Association
and all actions of the Board selected in said election. AFFIRMED AND
REMANDED.

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

SUSAN HALL CREECH
vs.
JON KINDRED HALL, SR.

Court:TCA

Attorneys: 

SELMA CASH PATY and PAMELA R. O'DWYER, Paty, Rymer & Ulin, P.C.,
Chattanooga, for appellant.

DAVID HAINES ROTROFF, Chattanooga, for Appellee.                         

Judge: McMurray

First Paragraph:

Plaintiff-Appellant, Susan Hall Creech, (mother) has appealed from an
order of the Chancery Court of Hamilton County modifying a divorce
judgment by changing custody of the parties' minor son, Jon Kindred
Hall Jr., to the appellant, Jon Kindred Hall Sr., (father). AFFIRMED
AND REMANDED.

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

SYLVIA H. DOCKERY
vs.
ESTATE OF JACK C. MASSEY

Court:TCA

Attorneys:  

W. GARY BLACKBURN
JAY C. BALLARD
BLACKBURN, SLOBEY, FREEMAN & HAPPELL, P.C.
2050 NationsBank Plaza
414 Union Street
Nashville, Tennessee 37219
    Attorneys for Plaintiff/Appellant
    
JOHN H. BAILEY, III
PAUL G. JENNINGS
BASS, BERRY & SIMS
2700 First American Center
Nashville, Tennessee 37238
    Attorneys for Defendant/Appellee                        

Judge: CANTRELL

First Paragraph:

In this case the plaintiff pleads lack of consideration and economic
duress, to avoid the enforceability of certain deeds of trust she
signed along with her husband.  The Chancery Court of Davidson County
granted summary judgment to the defendant.  We affirm.

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

ESTATE OF JANE DOE and JOHN DOE
vs.
VANDERBILT UNIVERSITY, INC.
dba VANDERBILT UNIVERSITY
MEDICAL CENTER

Court:TCA

Attorneys: 

ABBY R. RUBENFELD
Rubenfeld & Associates
2505 Hillsboro Road, Suite 201
Nashville, Tennessee  37212

A. BRUCE JONES
PATRICIA DEAN
Holland & Hart
555 17th Street, Suite 3200
P. O. Box 8749
Denver, Colorado  80201
    ATTORNEYS FOR PLAINTIFFS/APPELLANTS

JOHN S. BRYANT
Bass Berry & Sims
2700 First American Center
Nashville, Tennessee  37238-2700
    ATTORNEY FOR DEFENDANT/APPELLEE                         

Judge: LEWIS

First Paragraph:

In August of 1984, Jane Doe was transfused with blood contaminated
with human immunodeficiency  virus (HIV) at Vanderbilt University
Medical Center.  Years later, she and her husband John Doe sued
Vanderbilt University d/b/a Vanderbilt University Medical Center
(Vanderbilt) for its failure in 1987 and 1988 to individually notify
former patients who had received blood transfusions prior to March
1985 that the blood they received was not tested for the HIV virus. 
Finding this case to be governed by the provisions of the Tennessee
Medical Malpractice Act, Tennessee Code Annotated S 29-26-115, the
Davidson County Circuit Court concluded that, absent expert testimony
that Defendant deviated from the recognized standard of acceptable
professional practice for hospitals in Nashville or similar
communities, there existed no genuine issue of material fact.  The
court thus determined that the defendant was entitled to summary
judgment.  REVERSED AND REMANDED.

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

AUBREY L. GILLEY
vs.
MARGARET CULPEPPER, 
As Commissioner of the Tennessee    
Department of Employment Security,  
and FORKLIFTS UNLIMITED, INC.

WITH CONCURRING OPINION


Court:TCA

Attorneys: 

JEFFREY RAPPUHN
Willis & Knight
215 Second Avenue North
Nashville, Tennessee 37201
    ATTORNEY FOR PETITIONER/APPELLANT

GEORGE E. COPPLE, JR.
Suite 218, 172 Second Avenue, North
Nashville, Tennessee 37201
    ATTORNEY FOR RESPONDENT/APPELLEE
    FORKLIFTS UNLIMITED, INC.

CHARLES W. BURSON
    Attorney General and Reporter

KIMBERLY M. FRAYN
Assistant Attorney General
2nd Floor, Cordell Hull Bldg.
426 Fifth Avenue, North
Nashville, Tennessee 37243-0499
    ATTORNEYS FOR RESPONDENT/APPELLEE                         

Judge: LEWIS

First Paragraph:

This is an appeal by petitioner/appellant, Aubrey L. Gilley, from the
decision of the chancery court affirming the decision of the Board of
Review for respondent /appellee, the Tennessee Department of
Employment Security, to deny Mr. Gilley unemployment compensation
benefits.  REVERSED AND REMANDED.

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

PATRICIA ANN JOHNSON GRACE
vs.
ISAAC EVANS GRACE, JR.

Court:TCA

Attorneys: 

Kevin S. Terry, #15267
430 Third Avenue North
Suite 100
Nashville, Tennessee  37201
ATTORNEY FOR PLAINTIFF/COUNTER-DEFENDANT/APPELLEE

G. Kline Preston, IV, #17141
176 Second Avenue North
Suite 500
Nashville, Tennessee 37201
ATTORNEY FOR DEFENDANT/COUNTER-PLAINTIFF/APPELLANT                         

Judge: TODD

First Paragraph:

In this divorce case  the husband, Isaac Evans Grace, Jr., has
appealed from three provisions of the non-jury judgment in favor of
the wife, Patricia Ann Johnson Grace, and presented the following
issues: A.  Whether the Trial Court erred in its division and classi-
fication of the parties' property. B. Whether  the  Trial Court  erred
 in awarding the Wife rehabilitative alimony. C. Whether the Trial
Court erred in awarding the Wife attorneys fees. AFFIRMED IN PART AND
REMANDED.

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

International Collection Services, Inc.
vs. 
Virginia R. Bailey

Court:TCA

Attorneys:  

MICHAEL A. WAGNER
Wagner, Nelson & Weeks
1418 First Tennessee Building
Chattanooga, Tennessee 37402
    ATTORNEY FOR PLAINTIFF/APPELLANT

MARK E. ADKINS
P.O. box 237
Murfreesboro, Tennessee 37133                        

Judge: LEWIS

First Paragraph:

This is an appeal by plaintiff/appellant, International Collection
Services, Inc. ("ICS"), from the decision of the chancery court
granting summary judgment in favor of defendant/appellee, Virginia R.
Bailey.  AFFIRMED AND REMANDED.

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

ROBIN LETHCO and husband,
MARK LETHCO
vs.
JOHN HUFFMAN, M.D.

Court:TCA

Attorneys: 

ROGER L. GILBERT, Gilbert and Faulkner, Knoxville, for Appellants.

D. MICHAEL SWINEY and WYNN C. HALL, Paine, Swiney and Tarwater,
Knoxville, for Appellee.

Judge: McMurray

First Paragraph:

The sole issue on this appeal, as stated by the appellant, is whether
the trial court erred in dismissing this action on motion for summary
judgment.  More properly stated, the issue is whether or not the trial
court abused its discretion by denying a motion for a continuance of
the hearing for summary judgment or alternatively whether the trial
court abused its discretion in denying the plaintiffs relief from the
summary judgment. We find no error on the part of the trial court and
accordingly affirm the judgment. AFFIRMED AND REMANDED.

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

IVA DELL BROWN McALEXANDER
vs.
KENNETH JACKSON McALEXANDER 

Court:TCA

Attorneys: 

Jesse H. Ford, III, FORD & MAYO, Jackson, Tennessee, for
Defendant/Appellant.

Mary Jo Middlebrooks, MIDDLEBROOKS & GRAY, P.A., Jackson, Tennessee,
for Plaintiff/Appellee.

Judge: FARMER

First Paragraph:

Following the trial court's order granting the parties an absolute
divorce, distributing the parties' property, awarding custody of the
parties' four minor children to Iva Dell Brown McAlexander (the
Mother), and ordering Kenneth Jackson McAlexander (the Father) to pay
child support to the Mother pursuant to the Child Support Guidelines,
Father appealed.  The sole issue presented by the Father is whether
the trial court erred in granting custody of the parties' four
children to the Mother. We affirm. AFFIRMED AND REMANDED.

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

HARRY WRIGHT McCLURG
vs.
ANNIE LOU SMITH McCLURG

Court:TCA

Attorneys: 

CHARLES DUNGAN, Dungan & Meares, Maryville, for Appellant.

PERRY P. PAINE, JR., Paine, Garrett & Bray, Maryville, for Appellee.                         

Judge: McMurray

First Paragraph:

This is a divorce action.  No issue is made relating to the divorce
itself.  The controversy between the parties relates to the court's
division of the marital assets.  Upon consideration, we are of the
opinion that the judgment of the trial court fails to provide for an
equitable division of property between the parties.  Accordingly, we
remand the case to the trial court with instructions. VACATED IN PART
AND REMANDED WITH INSTRUCTIONS.

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

SCHAAD'S DO-IT CENTER
vs.
DOYLE K. WALKER and GARY KENNETH WALKER
and
KENNETH R. KRUSHENSKI, trustee
and
FIRST BANK OF EAST TENNESSEE, N.A.

Court:TCA

Attorneys: 

JOSEPH J. LEVITT, JR., Knoxville, for Appellant. 

KENNETH R. KRUSHENSKI, Rogers, Hurst & Krushenski, LaFollette, for
Appellee.
                          
Judge: McMurray

First Paragraph:

The sole determinative issue in this case is whether the appellant's
lien as a materialman as provided in T.C.A. S 66-11 102 is superior to
a deed of trust securing a note payable to the appellee (bank).  The
trial court determined that the deed of trust was superior to the
materialman's lien.  This appeal resulted.  We affirm the judgment of
the trial court. AFFIRMED AND REMANDED.

URL:http://www.tba.org/tba_files/TCA/SCHAAD'S_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE, ex. rel.
DOUGLAS M. SIZEMORE,    
Commissioner of the Department
of Commerce and Insurance for the
State of Tennessee
vs. 
UNITED PHYSICIANS INSURANCE 
RISK RETENTION GROUP

Court:TCA

Attorneys: 

JOHN KNOX WALKUP                    SARAH HIESTAND
Attorney General and Reporter       Assistant Attorney General
                                    Financial Division
                                    500 Charlotte Avenue
                                    Nashville, TN 37243-0496
RENARD A. HIRSCH, JR. #009489
619 Woodland Street
Nashville, TN 37206
ATTORNEYS FOR DEFENDANTS/APPELLEES

HOLLINS, WAGSTER & YARBROUGH
John L. Norris #6007
Suite 2210, SunTrust Center
424 Church Street
Nashville, TN  37219
ATTORNEY FOR CLAIMANT/APPELLANT                         

Judge: TODD

First Paragraph:

This appeal involves the rejection of a claim against a liability
insurer in a chancery receivership.  The appellant, Janina Loshek, was
a patient of Dr. Robert Slutsky who was insured against professional
liability by United Physicians Insurance Retention Group which has
been placed in receivership under T.C.A. SS 56-9-101 et seq. REVERSED
AND REMANDED.

URL:http://www.tba.org/tba_files/TCA/SIZE2_OPN.WP6
Opinion-Flash

ROYCE T. SMITH, individually  
and on behalf of all others 
similarly situated
vs.
FIRST UNION NATIONAL BANK OF TENNESSEE

Court:TCA

Attorneys:  

GORDON BALL, Knoxville, J. KENNETH PORTER, Newport, for Appellants.

WILLIAM S. LOCKETT, JR., Kennerly, Montgomery & Finley, P.C.,
Knoxville and CARL N. PATTERSON, JR., Smith, Anderson, Blount,
Dorsett, Mitchell & Jernigan, L.L.P., Raleigh, NC for appellee.
                        
Judge: McMurray

First Paragraph:

Royce T. Smith (plaintiff) filed this action against First Union
National Bank of Tennessee (bank) ostensibly as a class action.  In
his complaint the plaintiff seeks damages for what is alleged to be
unfair, deceptive and unlawful practices of the bank in the way and
manner it handles multiple checks drawn on the plaintiff's checking
account and presented for payment on the same banking day when the
aggregate of the checks exceeds the balance in the plaintiff's
account.  Specifically, the plaintiff asserts that the bank honors
checks in such a fashion as to maximize the fees charged by the bank
for checks returned for insufficient funds.  The basic premise of the
plaintiff is that the plaintiff honors the largest check (in amount)
first rather than honoring the checks in a way that maximizes the
number of checks that can be paid.  Plaintiff asserts that the bank's
action results in a greater number of checks being returned for
insufficient funds and, hence, greater fees are generated by the bank
and charged to its customers. AFFIRMED AND REMANDED.

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

JERRY WILLIAMS
vs.
MEMPHIS HOUSING AUTHORITY

MABLE MONDAY
vs.
MEMPHIS HOUSING AUTHORITY

Court:TCA

Attorneys: 

Gregory L. Perry
Attorney for Defendant/Appellant.

Alan Bryant Chambers,
Jeff A. Crow, Jr.
CHAMBERS, CROW, DURHAM & HOLTON, LAWYERS, Memphis, Tennessee
Attorney for Plaintiffs/Appellees.                         

Judge: FARMER

First Paragraph:

Defendant Memphis Housing Authority (MHA) appeals several orders
entered by the trial court in favor of two of MHA's former employees,
Plaintiffs/Appellees Jerry D. Williams and Mable Monday (collectively,
the Employees).  In separate actions filed below, the Employees sued
MHA for breach of employment contract.  In both cases, the trial court
entered orders granting the Employees' motions for summary judgment
based on the court's conclusion that MHA's Manual of Operations
constituted part of the employment contract between the parties and,
further, that MHA breached this contract by terminating the Employees
without just cause.  Amending the pleadings to conform to the proof in
the records, the trial court's foregoing orders also granted summary
judgment to the Employees on their claims that, in terminating the
Employees, MHA violated their rights to substantive and procedural due
process.  After conducting a subsequent hearing on the issue of
remedies, the trial court entered final orders granting the Employees
back pay and reinstatement to their former positions with MHA.  Upon
MHA's motion, this court consolidated MHA's appeals of the trial
court's judgments in favor of Williams and Monday because the appeals
involve common questions of law and fact. REVERSED AND REMANDED.

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

STATE OF TENNESSEE
vs.
TYREE P. AUSTIN

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:


JOHN H. HENDERSON                   JOHN KNOX WALKUP
Public Defender                     Attorney General & Reporter
P.O. Box 68
Franklin, Tennessee 37065-0068      RUTH THOMPSON
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, Tennessee 37243 0493

                                    JOSEPH D. BAUGH
                                    District Attorney General

                                    MARK L. PURYEAR, III
                                    Assistant District Attorney
                                    P.O. Box 937 
                                    Franklin, Tennessee 37065 0937
                         

Judge: RILEY

First Paragraph:

The defendant, Tyree P. Austin, appeals as of right from a jury
verdict convicting him of aggravated burglary, a Class C felony, and
theft of property under $500, a Class A misdemeanor.  As a Range I
standard offender, he was sentenced to five (5) years and fined $5,000
for aggravated burglary.  For theft of property under $500, Austin
received eleven months and twenty-nine days to run concurrently with
the burglary sentence.  Austin presents three issues for our review:
1) whether the evidence is sufficient to sustain the convictions; 2)
whether the trial judge erred in failing to submit "every word" of the
charge to the jury in written form; and 3) whether the imposed
sentence is excessive.  Finding no error, the judgment of the trial
court is affirmed. AFFIRMED.

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

JAMES ROBERT BLEVINS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

JOHN E. HERBISON                    JOHN KNOX WALKUP
2016 Eighth Avenue South            Attorney General and Reporter
Nashville, TN 37204
                                    SANDY R. COPOUS
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

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

                                    MICHAEL LaGUARDIA
                                    Asst District Attorney General
                                    Post Office Box 38
                                    Jonesborough, TN 37659                         

Judge: CLARK

First Paragraph:

Appellant appeals as of right from the trial court's dismissal of his
petition for post-conviction relief based on the running of the
statute of limitations.  Appellant contends that the ruling in State
v. Rickman, 876 S.W.2d 824 (Tenn. 1994), clarifying the rule of when
other uncharged instances of sexual conduct can be admitted into
evidence, creates a new, retroactive constitutional rule that voids
his conviction and sentence.  He also asserts a denial of equal
protection.  We disagree and affirm the judgment of the trial court.
AFFIRMED.

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

STATE OF TENNESSEE
vs.
JOHN WAYNE BLUE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

George Morton Googe                 John Knox Walkup
District Public Defender            Attorney General & Reporter
227 West Baltimore Street           500 Charlotte Avenue
Jackson, TN  38301                  Nashville, TN 37243-0497
(Appeal Only)               
                                    Robin L. Harris
Thomas T. Woodall                   Assistant Attorney General
Attorney at Law                     450 James Robertson Parkway
203 Murrell Street                  Nashville, TN 37243-0493
P.O. Box 1075
Dickson, TN  37056-1075             James G. Woodall
(At Trial and of Counsel on Appeal  District Attorney General
                                    P.O. Box 2825
Daniel J. Taylor                    Jackson, TN 38302
Assistant Public Defender       
227 West Baltimore Street           Donald W. Allen
Jackson, TN  38301                  Asst District Attorney General
(Trial Only)                        P.O. Box 2825
                                    Jackson, TN 38302                          

Judge: Jones

First Paragraph:

The appellant, John Wayne Blue (defendant), was convicted of
aggravated robbery, a Class B felony, and aggravated burglary, a Class
C felony, by a jury of his peers.  The trial court found the defendant
was a standard offender in the aggravated robbery case and imposed a
Range I sentence of twelve (12) years confinement in the Department of
Correction.  In the aggravated burglary case, the trial court found
the defendant was a multiple offender and imposed a Range II sentence
of eight (8) years confinement in the Department of Correction.  In
this Court, the defendant contends the State of Tennessee failed to
prove beyond a reasonable doubt the victim sustained "serious bodily
injury" and the sentences imposed by the trial court were excessive. 
After a thorough review of the record, the briefs submitted by the
parties, and the law governing the issues presented for review, it is
the opinion of this Court the judgment of the trial court should be
affirmed. AFFIRMED.

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

KETO BROWN
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

DANE BLUE                           CHARLES W. BURSON
147 Jefferson Avenue                Attorney General and Reporter
Memphis, TN  38103
                                    SARAH M. BRANCH
W. MARK WARD                        Assistant Attorney General
Assistant Public Defender           450 James Robertson Parkway
147 Jefferson Suite 900             Nashville, TN  37243
Memphis, TN  38103
                                    WILLIAM L. GIBBONS
                                    District Attorney General

                                    JAMES M. LAMMEY
                                    Assistant District Attorney
                                    201 Poplar Avenue, Third Floor
                                    Memphis, TN  38103                        

Judge: SMITH

First Paragraph:

Appellant Keto Brown pled guilty in the Shelby County Criminal Court
to two counts of attempted second degree murder.  As a Range I
standard offender, he received an eight year sentence for each
offense.  The trial court ordered the sentences served concurrently,
for an effective sentence of eight years in the Tennessee Department
of Correction.  In this appeal of the denial of a petition for
post-conviction relief, Appellant presents the following issue:
whether he received effective assistance of counsel. AFFIRMED.

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

STATE OF TENNESSEE
vs.
GILBERTO R. CANTU, 
and JOHN P. SCOTT

Court:TCCA

Attorneys:  

FOR THE APPELLANTS:                 FOR THE APPELLEE:

MARVIN E. BALLIN                    JOHN KNOX WALKUP
Attorney At Law                     Attorney General & Reporter
200 Jefferson Avenue, Suite 1250
Memphis, TN  38103                  JANIS L. TURNER
                                    Counsel for the State
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493

                                    JOHN W. PIEROTTI
                                    District Attorney General

                                    ALANDA HORNE
                                    Asst District Attorney General
                                    Shelby County District Attorney
                                     General's Office
                                    201 Poplar Avenue, Third Floor
                                    Memphis, TN  38103                        

Judge: WITT

First Paragraph:

The appellants, Gilberto R. Cantu and John P. Scott, appeal the Shelby
County Criminal Court's denial of judicial diversion and imposition of
a split, partially suspended sentence.  The appellants both pleaded
guilty to possession of a controlled substance and requested judicial
diversion, which was denied.  The court below imposed identical
sentences on the appellants of 14 months confinement, with all but 42
days suspended, and 2 years of probation and payment of fines.  On
review, we affirm both convictions, but we modify the sentence and the
manner of service of the sentence of Gilberto R. Cantu, and we remand
the case in order for the trial court to specify the conviction
offenses with respect to each appellant. AFFIRMED and REMANDED - JOHN
P. SCOTT AFFIRMED, AS MODIFIED and REMANDED - GILBERTO R. CANTU.

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

RICHARD DUANE CARROLL
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:

Gregory D. Smith                    John Knox Walkup
One Public Square                   Attorney General and Reporter
Suite 321                           
Clarksville, TN 37040               Clinton J. Morgan           
(On appeal)                         Assistant Attorney General
                                    450 James Robertson Parkway
William A. Dobson, Jr.              Nashville, TN 37243-0493
Assistant Public Defender
701 Cherry Street
Suite 300                           William H. Cox, III 
Chattanooga, TN 37402               District Attorney General
(At hearing)
                                    Leland Davis
                                    Assistant District Attorney
                                    600 Market Street
                                    Suite 310
                                    Chattanooga, TN 37402                         

Judge: Barker

First Paragraph:

The appellant, Richard Duane Carroll, appeals as of right the denial
by the Hamilton County Criminal Court of his petition for
post-conviction relief.  Appellant's only issue on appeal is whether
he received the effective assistance of counsel prior to entering his
plea of guilty.  Finding no merit to appellant's claims, we affirm the
trial court's denial of relief. AFFIRMED.

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

STATE OF TENNESSEE
vs.
RICKEY COLEMAN

Court:TCCA

Attorneys: 

For Appellant:                      For Appellee:
Shara Flacy                         Charles W. Burson
District Public Defender            Attorney General & Reporter
        
John R. Wingo                       Karen M. Yacuzzo
Assistant Public Defender           Assistant Attorney General
128 North Second Street             Criminal Justice Division
P.O. Box 1208                       450 James Robertson Parkway
Pulaski, TN  38478                  Nashville, TN  37243-0493
            
                                    Mike Bottoms
                                    District Attorney General
                                    252 N. Military Avenue
                                    Lawrenceburg, TN  38464
                        
                                    Richard Dunavant
                                    Asst. District Attorney General                             
                                    10 Public Square 
                                    P.O. Box 1619
                                    Columbia, TN  38401                         

Judge: WADE

First Paragraph:

The defendant, Rickey Coleman, pled nolo contendere to 16 counts of
forgery, 16 counts of passing worthless checks, 3 counts of theft, 3
counts of attempted forgery, and 1 count of assault.  The plea
agreement with the state provided for an effective eight-year sentence
with the trial court to determine the manner of service. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/COLEMAN2_OPN.WP6

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