TBALink Opinion-Flash

June 11, 1997 -- Volume #3 -- Number #59

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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01-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
15-New Opinons From TCA
05-New Opinons From TCCA

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STATE OF TENNESSEE
vs.
DAVID PAUL MARTIN

Court:TSC

Attorneys:

For Appellant:                  For Appellee:

Herbert S. Moncier              John Knox Walkup
Ann C. Short                    Attorney General & Reporter
Knoxville, Tennessee                        
                                Michael E. Moore
                                Solicitor General

                                Kathy Morante
                                Deputy Attorney General

                                Eugene J. Honea
                                Assistant Attorney General
                                Nashville, Tennessee

                                At Trial:
                                Randall E. Nichols
                                District Attorney General
                                Knoxville, Tennessee
                        
                                Robert Jolley
                                Assistant District Attorney
                                Knoxville, Tennessee                          

Judge: ANDERSON

First Paragraph:

We granted review in this case to determine whether a court-ordered
mental evaluation violated the defendant's right against
self-incrimination and the right to counsel under the United States
and Tennessee Constitutions. AFFIRMED.

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

TERRI G. BOWERS
vs.
FREDERICK ALLAN BOWERS

Court:TCA

Attorneys:   

L. CAESAR STAIR, III, BERNSTEIN, STAIR & McADAMS, and ELIZABETH K.B.
MEADOWS, SCHMID, JONES & MEADOWS, PLLC, Knoxville, for
Plaintiff-Appellant.

ROBERT R. SIMPSON and JAMES H. VARNER, JR., ESHBAUGH, SIMPSON AND
VARNER, Knoxville, for Defendant-Appellee.
                       

Judge: Franks.

First Paragraph:

In this custody dispute, the Trial Judge granted custody of the
parties' child to the father, and the mother has appealed. AFFIRMED AS
MODIFIED AND REMANDED.

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

CASEY LYNN BURGESS
vs.
BRENDA LEA (BURGESS) WELCH

Court:TCA

Attorneys:  

PROCTOR UPCHURCH OF CROSSVILLE FOR APPELLANT

BRETT A. YORK and CYNTHIA S. LYONS OF CROSSVILLE FOR APPELLEE
                        
Judge: Goddard

First Paragraph:

By this appeal Casey Lynn Burgess insists that the Trial Court was in
error in dismissing his petition for change of custody of his two
children, custody of whom by the divorce decree was awarded to Ms.
Welch. AFFIRMED AND REMANDED.

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

AEYON CHO
vs.
DAE-YOUNG JEONG

Court:TCA

Attorneys: 

For Appellant                   For Appellee

JAMES M. CRAIN                  JEAN MUNROE
Knoxville, Tennessee            Knoxville, Tennessee

                                LAURA RULE HENDRICKS
                                Eldridge, Irvine & Hendricks
                                Knoxville, Tennessee
                         

Judge: Susano

First Paragraph:

We granted the application of Dae-Young Jeong (Husband) for an
interlocutory appeal pursuant to Rule 9, T.R.A.P., to consider whether
the trial court has subject matter jurisdiction to grant his wife, the
plaintiff Aeyon Cho (Wife), an absolute divorce. AFFIRMED AND
REMANDED.

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

WHITNEY LEIGH DAVIDSON, minor
child, by next friend, ROZAN
DAVIDSON
vs.
DONNA WRIGHT, ET AL

Court:TCA

Attorneys:   

William A. (Bill) Davidson, Knoxville, for Appellants.
Catherine F. Quist, Knoxville, for Appellees.                       

Judge: INMAN

First Paragraph:

The Knox County Board of Education adopted a policy against the
possession of weapons on school campuses for the school year beginning
in September 1995.  Whitney Leigh Davidson was provided a copy of the
West High School Handbook which explained the policy and the
consequences of its violation.  On January 23, 1996, while a junior at
West High School, she was suspended for a violation of the policy. 
Following a series of administrative hearings the Board of Education
held a plenary hearing and upheld the decision to expel Ms Davidson
for one year.  Judicial review resulted in a finding that the Board
had not acted arbitrarily, illegally or beyond its jurisdiction in
expelling Ms. Davidson. AFFIRMED.

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

MABEL DONNELLY
vs.
ROBERT E. WALTER, M.D. and
HERMITAGE NURSING HOME

Court:TCA

Attorneys:

For Appellant                       For Appellee Walter

BOB McDANIEL GREEN                  CHARLES T. HERNDON, IV
Johnson City, Tennessee             Herndon, Coleman, Brading & McKee
                                    Johnson City, Tennessee


                                    For Appellee Hermitage 
                                    Nursing Home

                                    N.R. COLEMAN, JR.
                                    DANIEL D. COUGHLIN
                                    Milligan & Coleman
                                    Greeneville, Tennessee                         

Judge: Susano

First Paragraph:

Plaintiff Mabel Donnelly (Donnelly) appealed the trial court's denial
of her motion to reconsider a grant of summary judgment to the
defendants Dr. Robert E. Walter (Dr. Walter) and Hermitage Nursing
Home (Hermitage).  She presents for our review the question of whether
the denial of her motion to reconsider was an abuse of the trial
court's discretion.  For their part, the defendants contend that
Donnelly's appeal should be dismissed because of her failure to serve
a copy of the notice of appeal on the clerk of this court. We affirm.
AFFIRMED AND REMANDED.

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

FAIRVIEW LIMITED, d/b/a Fairview    
Apartments
vs.
PINKIE DANIEL

Court:TCA

Attorneys: 

Paul E. Drozdowski, Oak Ridge, for Appellant.
Harold P. Cousins, Buxton Law Office, Oak Ridge, for Appellee.
                         

Judge: INMAN

First Paragraph:

The appellant was evicted from her apartment for a violation of the
lease and applicable statutory law, and she appeals. AFFIRMED.

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

RICHARD GAUSE d/b/a ROOFWORKS 
OF TENNESSEE
vs.
JANICE COLE d/b/a RIVERSIDE 
SHOP and JERRY OGLE

Court:TCA

Attorneys:  

ROBERT L. OGLE, JR., Sevierville for Appellant.
JEFF D. RADER, Ogle, Wynn & Rader, Sevierville, for Appellees.
                        

Judge: McMurray

First Paragraph:

This case originated as an action to enforce a lien for work and
materials pursuant to T.C.A. S 66-11-126.  The plaintiff alleged that
he had furnished equipment, labor and materials which were used for
improvements on the property which the defendant, Cole occupied as
lessee and the defendant, Ogle, was an owner.  The defendant, Ogle,
filed an answer, generally stated that he owned an interest in the
subject property but was without sufficient knowledge or information
to form a belief as to the truth of the allegations set forth in the
complaint. AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

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

W. DALE GORDON
vs.
ROBBYN GORDON

Court:TCA

Attorneys:

KEVEN W. SHEPHERD, Maryville, for Appellant.
CHARLIE ALLEN, Oneida, for Appellee.                          

Judge: McMurray

First Paragraph:

This is a divorce case that comes to us in an unusual posture.  The
Husband filed his original complaint on April 3, 1996.  No answer was
filed by the Wife.  A marital dissolution agreement was filed on June
12, 1996.  The marital dissolution agreement provided for the division
of the parties' property and further contained the following
provision: The parties agree that they are equally responsible for the
breakdown of the marriage and respectfully request the court to
declare them divorced rather than awarding a divorce to either party
alone. JUDGMENT VACATED; REMANDED TO THE TRIAL COURT.

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

DEBORAH HENDRIX
vs.
FIRST TENNESSEE NATIONAL        
CORPORATION d/b/a FIRST     
TENNESSEE BANK

Court:TCA

Attorneys:   

James S. Pate, Erwin, for Appellant.
Steven C. Rose, West & Rose, Kingsport, for Appellee.                       

Judge: INMAN

First Paragraph:

This action for damages for defamation and outrageous conduct was
dismissed on motion for summary judgment.  The plaintiff presents the
propriety of the dismissal for appellate review, which is de novo on
the record with no presumption of correctness.  Johnson v. EMPE, Inc.,
837 S.W.2d 62, 68 (Tenn. App. 1992).  AFFIRMED.

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

GLADSTONE RALPH HOBBS
vs.
MOLLIE JANE HOBBS

Court:TCA

Attorneys: 

KENNETH CLARK HOOD, Rogers, Laughlin, Nunnally, Hood & Crum, P.C.,
Greeneville, for Appellant.

ROGER A. WOOLSEY, Greeneville, for Appellee.


Judge: McMurray

First Paragraph:

This is a divorce action.  The defendant (wife) asserts on this
appeal, among other things, that the trial court abused its discretion
in denying a continuance of the trial.  The record reflects that there
was a great deal of confusion as to the way and manner the case was
set for trial because of the resignation of the former Circuit Judge. 
The wife's counsel claims to have had no notice of the trial date
until the day the case was set for trial.  On that date, he applied to
the court for a continuance.  The court continued the case until the
following morning at 7:00 a.m.  Prior to the trial, the court allowed
the wife's attorney to make a motion for a continuance on the record,
with a written motion, to be filed as exhibit No. 1.  Counsel's
affidavit supporting the motion for a continuance was allowed to be
filed as exhibit 2. REVERSED AND REMANDED.

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

KEITH HARDWARE, INC.
vs.
DOUGLAS L. WHITE and wife,
CAROLYN L. WHITE

Court:TCA

Attorneys:  

M. STANLEY GIVENS, ANDERSON, FUGATE, GIVENS, COUNTS & BELISLE, Johnson
City, for Plaintiff-Appellant.

JOHN S. TAYLOR, McKINNON, FOWLER, FOX & TAYLOR, Johnson City, for
Defendants-Appellees.

Judge: Franks

First Paragraph:

The issue on this interlocutory appeal granted pursuant to T.R.A.P.
Rule 9, is whether the lease between the parties is too broad to be
enforceable, as was held by the Trial Court. REMANDED.

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

CORBIN DALE MEADOR
vs.
LINDA J. MEADOR

Court:TCA

Attorneys:

LAWRENCE WILSON OF NASHVILLE FOR APPELLANT
CHARLES D. PATY OF CHATTANOOGA FOR APPELLEE                          

Judge: Goddard

First Paragraph:

The controversy presently on appeal attacks a judgment entered in a
post-divorce petition for contempt, wherein Linda J. Meador seeks to
recover property she contends was awarded her in the divorce decree
and to find her former husband, Corbin Dale Meador in contempt of
court for refusing to deliver the property to her. VACATED AND
REMANDED.

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

ANTHONY W. NANCE,
and BRANDON NANCE
vs.
CHRISTOPHER H. STRUNK

Court:TCA

Attorneys: 

VIC PRYOR, BASISTA, PRYOR & BALLOFF, Jacksboro, for Plaintiffs
Appellants.

DANIEL M. GASS, O'NEIL, PARKER & WILLIAMSON, Knoxville, for
Defendant-Appellee.
    
DENNIS L. BABB and VONDA M. LAUGHLIN, BUTLER, VINES & BABB, Knoxville,
for Defendant-Appellee, Guaranty National Insurance Company.
                         

Judge: Franks

First Paragraph:

In this action arising from a motor vehicle accident, the defendants
were granted summary judgment and plaintiffs have appealed. AFFIRMED
IN PART, REVERSED IN PART, AND REMANDED.

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

FIRST TENNESSEE BANK, NATIONAL 
ASSOCIATION
vs.
JESSE O. QUILLIAN

Court:TCA

Attorneys:

RICHARD A. FISHER, Logan, Thompson, Miller, Bilbo, Thompson & Fisher,
P.C., Cleveland, for Appellant.

THOMAS L. N. KNIGHT, Grisham, Knight & Hooper, Chattanooga, for
Appellee.

Judge: McMurray

First Paragraph:

This case originated as an action to collect monies due under the
terms of a promissory note executed by the defendant to the plaintiff
First Tennessee Bank, National Association.  An answer was filed by
the defendant admitting the execution of the note and that there was
an outstanding balance thereon.  He also filed a counterclaim in which
he sought a setoff and damages for forged checks drawn on his account
and paid by the bank.  The trial court on motion of the plaintiff,
entered a summary judgment against the defendant on the original
complaint and dismissed the counterclaim.  A judgment in the amount of
$34,399.24 was entered against the defendant.  This appeal resulted. 
We affirm the judgment of the trial court. AFFIRMED AND REMANDED.

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

JORGE ARIEL SANJINES, M.D.
vs.
ORTWEIN AND ASSOCIATES, P.C.,
WILLIAM H. ORTWEIN, J. CRIS
HELTON, AND JOHN R. MORGAN

Court:TCA

Attorneys:  

J. ARIEL SANJINES, M.D., pro se.

E. BLAKE MOORE, SPEARS, MOORE, REBMAN & WILLIAMS, Chattanooga, for
Defendant-Appellee, John R. Morgan.

SAMUEL R. ANDERSON and SHANE USARY, LUTHER-ANDERSON, PLLP,
Chattanooga, for Defendants-Appellees, Ortwein & Associates, P.C.,
William H. Ortwein, and J. Cris Helton.
                        

Judge: Franks

First Paragraph:

Plaintiff, incarcerated in prison, brought this action against his
attorneys for alleged malpractice in representing him in the charges
brought against him for criminal conduct. VACATED AND REMANDED.

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

STATE OF TENNESSEE
vs.
CORBY MARTIN BLOUVET, II

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

A. PHILIP LOMONACO                  JOHN KNOX WALKUP
112 Durwood Dr.                     Attorney General & Reporter
Knoxville, TN  37922
                                    ELIZABETH T. RYAN                                   
                                    Asst. Attorney General
                                    450 James Robertson Pkwy.
                                    Nashville, TN  37243-0493

                                    RANDALL E. NICHOLS
                                    District Attorney General

                                    ROBERT L. JOLLEY, JR.
                                    Asst. District Attorney General
                                    City-County Bldg.
                                    Knoxville, TN  37902                         

Judge: PEAY

First Paragraph:

The defendant was indicted by presentment in May of 1991 on numerous
charges related to a spree of robberies and other crimes.  After a day
of trial, the defendant decided to enter a plea of guilty.  He was
convicted of nine counts of aggravated robbery, two counts of
attempted aggravated robbery, and three counts of aggravated
kidnapping.  Following a hearing, the defendant was sentenced.  On
appeal, the defendant questioned the appropriateness of his sentence
and sought to raise a certified question.  This Court and ultimately
the Tennessee Supreme Court determined that the trial court improperly
sentenced the defendant and remanded the case for re-sentencing.  This
Court also determined that while the defendant did not properly
certify his question on appeal, he could attempt to do so upon
completion of the re-sentencing. AFFIRMED.

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

STATE OF TENNESSEE
vs.
RANDLE DAVIS

Court:TCCA

Attorneys:

For the Appellant:                  For the Appellee:

THOMAS T. WOODALL                   CHARLES W. BURSON
203 Murrell Street                  Attorney General and Reporter
Dickson, TN  37056-1075 
                                    ROBIN L. HARRIS         
(ON APPEAL ONLY)                    Assistant Attorney General                          
                                    Criminal Justice Division
                                    450 James Robertson Parkway
GARY F. ANTRICAN                    Nashville, TN 37243 0493
District Public Defender        
P. O. Box 700                       
Somerville, TN  38068               ELIZABETH T. RICE
                                    District Attorney General
(AT TRIAL AND OF COUNSEL
ON APPEAL)                          ED NEAL McDANIEL
                                    Asst. District Attorney General
                                    300 Industrial Drive
                                    Selmer, TN  38375                          

Judge: Hayes

First Paragraph:

The appellant, Randle Davis, was convicted by a McNairy County jury of
delivery of a Schedule II controlled substance, a class C felony. 
Tenn. Code Ann. S 39-17-417 (a)(2) and (c)(2) (1993 Supp.).  The trial
court sentenced the appellant as a standard, range I offender to forty
months incarceration in the Tennessee Department of Correction.  On
appeal, the appellant challenges the sufficiency of the evidence
underlying his conviction, asserts that his sentence is excessive, and
contends that the trial court erred in denying him an alternative
sentence. AFFIRMED.

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

KENNY FOWLER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

For Appellant:                      For Appellee:
Kenny Wayne Fowler                  Charles W. Burson
Pro Se                              Attorney General & Reporter
Reg. No. 13575-076
F.C.I. Memphis                      M. Allison Thompson 
P. O. Box 34550 (Beale-B)           Counsel for the State 
Memphis, TN  38184-0550             450 James Robertson Parkway
                                    Nashville, TN  37243-0493
                                                
                                    C. Phillip Bivens
                                    District Attorney General
                                    P.O. Drawer D
                                    Dyersburg, TN  38024                        

Judge: Jones

First Paragraph:

The petitioner, Kenneth Wayne Fowler, appeals the trial court's denial
of his petition for post-conviction relief.  There was no evidentiary
hearing.  The single issue presented for review is whether the
petition was barred by the statute of limitations. We affirm the
judgment of the trial court. AFFIRMED.

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

STATE OF TENNESSEE
vs.
CHARLES DANIEL GRAY

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:


MARK E. STEPHENS                    JOHN KNOX WALKUP
Public Defender                     Attorney General & Reporter

LESLIE NASSIOS                      ROBIN L. HARRIS                   
Asst. Public Defender               Asst. Attorney General
1209 Euclid Ave.                    450 James Robertson Pkwy.
Knoxville, TN  37921                Nashville, TN  37243-0493

                                    RANDALL E. NICHOLS
                                    District Attorney General

                                    ROBERT L. JOLLEY, JR.
                                    Asst. District Attorney General
                                    City-County Bldg.
                                    Knoxville, TN  37902                         

Judge: PEAY

First Paragraph:

The defendant was indicted on September 21, 1994, for the second
degree murder of Shirlene Miller.  After five days of trial, a jury
convicted him of the indicted offense.  A sentencing hearing was held,
and the defendant was sentenced to twenty-five years in the Tennessee
Department of Correction.  AFFIRMED.

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

STATE OF TENNESSEE
vs.
JOSHUA McDANIEL

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

RANDY G. ROGERS                     JOHN KNOX WALKUP
P. O. Box 507                       Attorney General and Reporter
Athens, TN 37371-0507
                                    MICHAEL J. FAHEY, II
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    JERRY N. ESTES
                                    District Attorney General

                                    SANDRA DONAGHY
                                    Asst District Attorney General
                                    Post Office Box 647
                                    Athens, TN 37303-0647
                        
Judge: CLARK

First Paragraph:

Defendant appeals as of right from his conviction for second degree
murder.  He raises three issues on review: (1) whether his case was
properly transferred from juvenile court to criminal court for trial;
(2) whether the proof is sufficient to support the jury's rejection of
his insanity plea; and (3) whether the trial judge erred in imposing
sentence.  We affirm the judgment of the trial court. AFFIRMED.

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

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