TBALink Opinion-Flash

August 18, 1997 -- Volume #3 -- Number #074

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

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George Dean
TBALink Chief Editor


APRIL L.  DAVIDSON (COOK)
vs.
JEFFREY VENSON DAVIDSON

Court:TCA

Attorneys:

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

Pamela S. Jones                     Jesse H. Ford, III       
Dresden, Tennessee                  Jackson, Tennessee  
                          
Judge:  LILLARD

First Paragraph:

This is a child custody case in which custody of the children has
changed several times between the father and mother.  In this
proceeding, the trial court found a material change of circumstances
warranting a change of custody from the father to the mother. We
affirm. AFFIRMED AND REMANDED.

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

MONROE E. DAVIS,
DAVID SHELTON and
TRACEY CHADWICK
vs.
DON SUNDQUIST, Governor of the  
State of Tennessee, and
CHARLES W. BURSON,  
Attorney General and Reporter for the
State of Tennessee

Court:TCA

Attorneys: 

MONROE E. DAVIS, Pro Se
TDOC # 130909
W.T.H.S.F.
P. O. Box 1050
Henning, Tennessee   38041-1050

CHARLES W. BURSON
Attorney General & Reporter

JEFFREY L. HILL
Assistant Attorney General
Civil Rights and Claims Division
2nd Floor, Cordell Hull Building
426 5th Avenue North
Nashville, Tennessee 37243-0488
ATTORNEYS FOR RESPONDENTS/APPELLEES                         

Judge: LEWIS

First Paragraph:

This is an appeal by petitioners/appellants, Monroe Davis, David
Shelton, and Tracey Chadwick.  Petitioners are inmates in the custody
of the Tennessee Department of Corrections and are appealing the
judgment of the Chancery Court for Davidson County.  The chancery
court dismissed their petition seeking a declaratory judgment that
Tennessee Code Annotated section 40-20-112 is unconstitutional because
it encompasses more than one subject in contravention of article 2,
section 17 of the Constitution of the State of Tennessee. AFFIRMED AND
REMANDED.

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

NORMA JEAN FOSHEE
vs.
SOUTHERN FINANCE AND        
THRIFT CORPORATION, WALTER 
BRUMIT and HORACE BRUMIT

Court:TCA

Attorneys:  

STEVEN C. ROSE OF KINGSPORT FOR APPELLANTS SOUTHERN FINANCE AND THRIFT
CORPORATION and WALTER BRUMIT

THOMAS C. McKEE OF JOHNSON CITY FOR APPELLANT HORACE BRUMIT

FRANCIS X. SANTORE, SR., and FRANCIS X. SANTORE, JR., OF GREENEVILLE
FOR APPELLEE
                        
Judge: Goddard

First Paragraph:

The principal--and, in our view, the determinative- issue presented in
this Rule 9 Interlocutory appeal is whether a plea of double jeopardy
in which the underlying criminal prosecution was dismissed on the
ground that the Trial Court erroneously granted a mistrial in the
first criminal case is a termination favorable to the Plaintiff.
REVERSED AND DISMISSED.

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

WILLIAM R. KEY, Clerk of    
the Criminal Courts of  
Shelby County, Tennessee
vs.
JULIAN T. BOLTON, Chairman
of the Shelby County Board of
Commissioners, and JIM ROUT,
Mayor of Shelby County, Tennessee

Court:TCA

Attorneys: 

DAVID F. KUSTOFF, Memphis, Attorney for Plaintiff.

ALAN G. CRONE, Assistant Shelby County Attorney, Wilder, Crone,
Johnston, Mason & Goodwin, PLC, Memphis, Attorney for Defendants.
                         
Judge: TOMLIN

First Paragraph:

William R. Key, Clerk of the Criminal Courts of Shelby County
(hereafter "Plaintiff") filed a petition in the Criminal Court of
Shelby County against Mark Norris, Chairman of the Shelby County Board
of Commissioners, and Jim Rout, Mayor of Shelby County (hereafter
"Defendants") seeking salary increases for various employees of the
Criminal Court Clerk's Office in Shelby County pursuant to T.C.A. ?
8-20-101 et seq.  Following a bench trial the trial court granted all
of the requested salary increases. REVERSED AND REMANDED.

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

PATRICIA KIREYCZYK and
JOHN KIREYCZYK
vs. 
MF ATHLETIC CLUB, L.P., 
THE ATHLETIC CLUB OF MARYLAND
FARMS, INC., and CLUN SPORTS
INTERNATIONAL-NASHVILLE, INC.

Court:TCA

Attorneys: 

DAVID F. KUSTOFF, Memphis, Attorney for Plaintiff.

ALAN G. CRONE, Assistant Shelby County Attorney, Wilder, Crone,
Johnston, Mason & Goodwin, PLC, Memphis, Attorney for Defendants.
                         
Judge: CAIN

First Paragraph:

This is a "slip and fall" case before the Court for review of the
trial Court action sustaining a Motion for Summary Judgement filed by
the Defendants.

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

The Outdoor Source, Inc.
vs.
Outdoor Entertainment, Inc.

Court:TCA

Attorneys:     

GREGORY D. SMITH
Willis & Knight
215 Second Avenue North
Nashville, Tennessee 37201
    ATTORNEY FOR PLAINTIFF/APPELLANT

L. WEBB CAMPBELL II
Sherrard & Roe, PLC
424 Church Street, Suite 2000
Nashville, Tennessee 37219
    ATTORNEY FOR DEFENDANT/APPELLEE
                     
Judge: LEWIS

First Paragraph:

This is an appeal by plaintiff/appellant, The Outdoor Source, Inc.
("TOSI"), from the chancery court's decision granting the motion for
summary judgment filed by defendant/appellee, Outdoor Entertainment,
Inc. ("OEI"), and overruling TOSI's motion for summary judgment.

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

ROBERT ELLIS ROULETTE
vs.
HEATHER MARIE HICKS ROULETTE

Court:TCA

Attorneys: 

For Appellant                       For Appellee

SANDRA G. OLIVE                     JERRY G. CUNNINGHAM
Olive & Olive                       Kizer & Black
Knoxville, Tennessee                Maryville, Tennessee
                         
Judge: Susano

First Paragraph:

In this post-divorce proceeding, the trial court, following a bench
trial, granted the petition of Robert Ellis Roulette (Father) seeking
sole custody of the parties' child, Cody Dyllan Roulette, age three. 
In so doing, the court modified the parties' judgment of divorce,
which, pursuant to the parties' marital dissolution agreement, had
decreed joint custody and designated Heather Marie Hicks Williams
(formerly Roulette) (Mother) as the residential custodian.  Mother
appealed, arguing that the evidence preponderates against the trial
court's determination that there was a material and substantial change
in the circumstances of the parties and their child justifying a
change of custody. We affirm. AFFIRMED AND REMANDED.

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

ALAN TATE
vs.
STATE OF TENNESSEE  
BOARD OF PAROLES, and
KEVIN MYERS

Court:TCA

First Paragraph:

This is an appeal from the dismissal of a prisoner's common-law writ
of certiorari challenging the decision of the Tennessee Board of
Paroles to deny his application for parole.  After reviewing the
parties' briefs and the entire record, we have determined that the
October 17, 1996 Order of the Fifth Circuit Court for Davidson County
should be affirmed in accordance with Tenn. Ct. App. R. 10(a).

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

WILLIAM TOWNE YOUNG
vs.
MARTHA McCOOL YOUNG

Court:TCA

Attorneys: 

J. RUSSELL HELDMAN
Franklin, Tennessee
Attorney for Appellant

THOMAS C. BINKLEY
JEFFREY ZAGER
TRABUE, STURDIVANT & DeWITT
Nashville, Tennessee
Attorneys for Appellee                         

Judge: HIGHERS

First Paragraph:

In this divorce action, Martha McCool Young ("Wife") was awarded a
divorce from William Towne Young ("Husband") on the grounds of
adultery.  Pursuant to a consent decree of divorce, custody of the
parties' minor child was awarded to Wife.  Wife agreed to obtain
medical insurance coverage for the child through her employer, and the
parties agreed to divide equally the medical expenses of the child
which were not covered by insurance.  Wife was awarded an IRA account
valued at $29,000 which was titled in Husband's name.  In exchange for
Wife's receipt of the IRA account, Husband was forgiven any child and
spousal support arrearage existing through June 30, 1995, and Wife
relinquished any claim she might have against Husband for dissipation
of the marital assets on any person other than Wife. AFFIRMED AS
MODIFIED.

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

STATE OF TENNESSEE
vs.
HOYT EDWARD CARROLL

Court:TCCA

Attorneys: 


FOR THE APPELLANT:                  FOR THE APPELLEE:

GREG W. EICHELMAN                   JOHN KNOX WALKUP
District Public Defender            Attorney General and Reporter

R. RUSSELL MATTOCKS                 CLINTON J. MORGAN
Assistant District Public Defender  Assistant Attorney General
1609 College Park Drive, Box 11     450 James Robertson Parkway
Morristown, TN 37813-1618           Nashville, TN 37243-0493

                                    C. BERKELEY BELL, JR.
                                    District Attorney General

                                    G. DOUGLAS GODBEE
                                    Asst District Attorney General
                                    Hawkins County Courthouse
                                    Rogersville, TN 37857

                                    MICHELLE GREEN
                                    Asst District Attorney General
                                    Greene County Courthouse
                                    Greeneville, TN 37743                         

Judge: RILEY

First Paragraph:

The defendant, Hoyt Edward Carroll, was indicted on one (1) count of
the manufacture of more than one-half () ounce but less than ten (10)
pounds of marijuana, one (1) count of possession of drug
paraphernalia, and one (1) count of  evading arrest.  A Hawkins County
jury convicted him of the manufacture of marijuana and possession of
drug paraphernalia.  The trial court sentenced him to two (2) years in
the Tennessee Department of Correction for the manufacture of
marijuana, and eleven (11) months and  29 days in the county jail for
the possession of drug paraphernalia.  The sentences were ordered to
run concurrently.  On appeal, he contends that the evidence was
insufficient to sustain his convictions, his sentences are excessive,
and the trial court erred in denying alternative sentencing.  We 
AFFIRM  his convictions, but  MODIFY his misdemeanor sentence.
AFFIRMED AS MODIFIED.

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

STATE OF TENNESSEE
vs.
DAVID DAVENPORT

Court:TCCA

Attorneys: 

For Appellant:                      For Appellee:
Gregory D. Smith, Attorney          John Knox Walkup
One Public Square, Ste. 321         Attorney General & Reporter
Clarksville, TN  37040
(on appeal)                         Kenneth W. Rucker 
                                    Assistant Attorney General
Jeff Mueller                        450 James Robertson Parkway
Assistant Public Defender           Nashville, TN  37243-0493
227 West Baltimore      
Jackson, TN  38301                  James W. Thompson 
(at trial & co-counsel on appeal)   Asst. District Attorney General
                                    Lowell Thomas State Office Bldg 
                                    Jackson, TN  38301                         

Judge: WADE

First Paragraph:

The defendant, David Davenport, was convicted of automobile burglary
and theft of property valued over $10,000.  See Tenn. Code Ann. SS 39
14-402(a)(4) (Class E felony), 39-14-101 and -105(4) (Class C felony).
The trial court merged the convictions into a single count of theft
over $10,000 and imposed a Range I sentence of three years. AFFIRMED
AND REMANDED.

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

STATE OF TENNESSEE
vs.
YTOCKIE FULLER

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

GEORGE MORTON GOOGE                 JOHN KNOX WALKUP 
District Public Defender            Attorney General & Reporter

JEFF MUELLER                        WILLIAM DAVID BRIDGERS
Assistant Public Defender           Assistant Attorney General
227 West Baltimore Street           425 Fifth Avenue North 
Jackson, TN  38301-6137             2nd Floor, Cordell Hull Building
                                    Nashville, TN  37243

                                    JAMES G. WOODALL 
                                    District Attorney General

                                    JAMES W. THOMPSON
                                    Asst District Attorney General
                                    Lowell Thomas State Office Building
                                    225 Martin Luther King Drive
                                    P.O. Box 2825
                                    Jackson, TN  38302  
                        
Judge: WOODALL

First Paragraph:

The Defendant, Ytockie Fuller, appeals as of right pursuant to Rule 3
of the Tennessee Rules of Appellate Procedure.  Following a jury trial
in the Circuit Court of Madison County, Defendant was found guilty of
especially aggravated robbery, conspiracy to commit especially
aggravated robbery and possession of a deadly weapon with the intent
to employ in the commission of an especially aggravated robbery. 
Subsequently, the trial judge merged the deadly weapon conviction with
the especially aggravated robbery conviction and dismissed the
conspiracy charge.  AFFIRMED.

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

STATE OF TENNESSEE
vs.
STEVEN J. HAYNES

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

MACK GARNER                         JOHN KNOX WALKUP
District Public Defender            Attorney General & Reporter
419 High St.
Maryville, TN  37804                MARVIN E. CLEMENTS, JR.                             
                                    Asst. Attorney General
                                    450 James Robertson Pkwy.
                                    Nashville, TN  37243-0493

                                    MIKE FLYNN
                                    District Attorney General

                                    PHILLIP MORTON
                                    Asst. District Attorney General
                                    Blount County Courthouse
                                    Maryville, TN  37804    
                        

Judge: PEAY

First Paragraph:

The defendant was declared a Motor Vehicle Habitual Offender in
September 1993.  During a five month period from August 1995 to
January 1996, the defendant was charged with violating the Motor
Vehicle Habitual Offenders Act along with various other traffic
related offenses.  On February 14, 1996, he pled guilty to all
charges.  After a hearing, he received an effective sentence of six
years.  AFFIRMED.

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

JIMMY WAYNE WILSON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For Appellant:                      For Appellee:

Jimmy Wayne Wilson, Pro Se          Charles W. Burson
P. O. Box 5000                      Attorney General and Reporter
Mountain City, TN  37683                        
                                    Elizabeth T. Ryan
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN   37243-0493

                                    H. Greeley Wells, Jr.
                                    District Attorney General

                                    Joseph Eugene Perrin
                                    Asst. District Attorney General
                                    P.O. Box 526
                                    Blountville, TN  37617-0526
                        

Judge: DENDER

First Paragraph:

This is an appeal as of right from the order of the Sullivan County
Criminal Court, dated February 20, 1996, dismissing appellant's
petition for a writ of habeas corpus, without appointing counsel and
without a hearing.  We find no merit in any of the issues raised on
appeal, and the trial court is affirmed. AFFIRMED.

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

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