TBALink Opinion-Flash

August 22, 1997 -- Volume #3 -- Number #076

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
01-New Opinons From TSC-Workers Comp Panel
06-New Opinons From TCA
08-New Opinons From TCCA

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TBALink Chief Editor


STATE OF TENNESSEE
vs.
JUBAL CARSON

Court:TSC

Attorneys: 

For Appellant:                      For Appellee:

Christopher Van Riper               John Knox Walkup
Stuart & Van Riper                  Attorney General & Reporter
Clinton, Tennessee
                                    Michael E. Moore
                                    Solicitor General

                                    Michael J. Fahey, II
                                    Assistant Attorney General
                                    Nashville, Tennessee
                                                
                                    Randall E. Nichols
                                    District Attorney General
                        
                                    Jo Helm
                                    Leon Franks
                                    Asst District Attorney General
                                    Knoxville, Tennessee                         

Judge: ANDERSON

First Paragraph:

The issue presented by this appeal is whether the defendant, who
assisted his co defendants in committing an aggravated robbery, was
criminally responsible under Tenn. Code Ann. S 39-11-402(2) for
additional offenses committed by them. AFFIRMED.

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

TIMMY RAY BEARD
vs.
QUADREX CORPORATION and     
LIBERTY MUTUAL INSURANCE
COMPANY

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:                  For the Appellees:

Gerald L. Gulley, Jr.               Richard K. Evans
P.O. Box 1708                       P.O. Box 777
Knoxville, Tenn.  37901-1708        Kingston, Tenn.  37763                         

Judge: THAYER

First Paragraph:

Defendants, Quadrex Corporation and Liberty Mutual Insurance Company,
have appealed from the trial court's award of 50% permanent partial
disability to the body as a whole.  They contend the court was in
error in fixing any disability for plaintiff's psychological injury
and that the award exceeded the statutory cap of six times the medical
impairment rating of 5%. AFFIRMED.

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

ADAMS TV OF MEMPHIS, INC.
vs.
COMCORP OF TENNESSEE, INC.,
and THOMAS R. GALLOWAY

Court:TCA

Attorneys:                          

LUCIAN T. PERA
CANNON F. ALLEN
MARY A. McNEIL
ARMSTRONG ALLEN PREWITT GENTRY JOHNSTON & HOLMES
Memphis, Tennessee
Attorneys for Appellant

HENRY L. KLEIN
APPERSON, CRUMP, DUZANE & MAXWELL, PLC
Memphis, Tennessee
Attorney for Appellee

Judge: HIGHERS

First Paragraph:

In this breach of contract action, Adams TV of Memphis, Inc.
("Plaintiff" or "Adams TV") filed suit against ComCorp of Tennessee,
Inc. ("ComCorp") and Thomas R. Galloway for breaching several
provisions of their contract (hereinafter the "Adams TV-ComCorp
contract"), which provided for the sale of WHBQ-TV (hereinafter the
"Station").  ComCorp filed a motion to dismiss asserting that even if
ComCorp had breached certain provisions of the Adams TV-ComCorp
contract, such breaches were not material breaches, and Adams TV
incurred no damage as a result.  The trial court granted ComCorp's
motion to dismiss, holding that Adams TV received the entire benefit
of its bargain under the Adams TV-ComCorp contract, that ComCorp did
not materially breach any part of the Adams TV-ComCorp contract, and
that the damages sought by Adams TV were merely consequential and
thereby precluded by section 9.2(c) of the Adams TV-ComCorp contract.
AFFIRMED.

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

STEVE CARROLL and wife,
TAMMY CARROLL
vs.
J. R. ROACH

Court:TCA

Attorneys:

W. J. REYNOLDS, Reynolds & Reynolds Law Firm, Savannah, for
Plaintiffs/Appellants.

CHARLES M. PURCELL, Waldrop & Hall, P.A., Jackson
TERRY ABERNATHY, Law Offices of Terry Abernathy, Selmer 
for Defendant/Appellee.                          

Judge: FARMER

First Paragraph:

Steve Carroll and wife Tammy Carroll sued J. R. Roach to recover for
damages sustained as a result of a vehicular accident between a car
driven by Mr. Carroll and a truck and trailer driven by Mr. Roach.
AFFIRMED AND REMANDED.

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

DECATUR COUNTY BANK
vs.
WELBORN B. DUCK
AND 
CECIL DUCK

Court:TCA

Attorneys:

Welborn B. Duck, Pro Se 

Edwin Townsend, TOWNSEND AND TOWNSEND, Parsons, Tennessee
Attorney for Plaintiff/Counter-Defendant/Appellee.
                          
Judge: FARMER

First Paragraph:

Appellee, Decatur County Bank (Bank), filed suit against Appellant,
Welborn B. Duck (Duck), for reformation of a trust deed and default
upon four promissory notes.  Bank specifically alleged that Duck was
in default on a note dated October 10, 1986 in the principal amount of
$59,518.73; a note dated June 27, 1988 in the principal amount of
$1,003.10; a note dated March 21, 1988 in the principal amount of
$25,043; and a note dated March 23, 1989 in the principal amount of
$6,000, for a total principal indebtedness of $91,564.83. AFFIRMED AND
REMANDED.

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

JOSEPH LEIBOVICH, EXECUTOR OF
THE ESTATE OF EVELYN G. JORDAN
AND JOHN JORDAN
vs.
THE KROGER COMPANY, 
TOPVALCO, INC., MID-SOUTH
AUTOMATIC DOOR AND BESAM,INC.

Court:TCA

Attorneys:

JOHN R. CANNON, JR.
THE HARDISON LAW FIRM
Memphis, Tennessee
Attorney for Appellant

SAM L. CRAIN, JR.
STEPHEN D. CRAWLEY
SCOTT J. CROSBY
Memphis, Tennessee
Attorneys for Appellee                          

Judge: HIGHERS

First Paragraph:

In this personal injury action, Joseph Leibovich ("Plaintiff") filed
suit as the executor of the estate of Evelyn Jordan ("Jordan") and her
husband, John Jordan, for injuries Jordan sustained as a result of
being struck by automatic doors that closed upon her.  Plaintiff
alleged that the negligence of the Defendants, The Kroger Company,
Topvalco, Inc., Mid-South Automatic Door ("Mid-South"), and Besam,
Inc. ("Besam"), combined to cause Jordan's injury. REVERSED AND
REMANDED.

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

CAROL STRONG
vs.
TIMOTHY RALPH STRONG

Court:TCA

Attorneys: 

CAREN DANTZKER, Memphis, Attorney for Plaintiff.
G. KEITH ROGERS, JR., Memphis, Attorney for Defendant.                         

Judge: TOMLIN

First Paragraph:

This case presents a procedural issue involving T.R.C.P. 37.01.  Carol
Strong (hereafter "Wife") filed suit for divorce in the Circuit Court
of Shelby County against Timothy Ralph Strong (hereafter "Husband"). 
Subsequently, Wife served Husband with a set of eighteen
interrogatories.  Husband filed an answer to the complaint as well as
responses to the interrogatories.  Wife thereafter filed a Motion to
Compel Discovery pursuant to T.R.C.P. 37.01, contending that Husband's
responses to four of the interrogatories were incomplete and
insufficient.  The trial court granted Wife's motion to compel and
ordered Husband to answer the four interrogatories.  In addition, the
trial court ordered Husband and his counsel AEI@(eO$P.00 as
sanct'He for failure to cooperate with discovery.  Husband's sole
issue on appeal is whether the trial court erred in ordering Husband
and his counsel to pay Wife the $500.00 pursuant to Rule 37 T.R.C.P.. 
In addition, Wife asks this court to find Husband's appeal to be
frivolous pursuant to T.C.A. 27-1-122. AFFIRMED AND REMANDED.

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

SUNBURST BANK, CARLTON  
BARNES, and ALMA JO BARNES
vs.
ROBERT PATTERSON, SR., SHELBY 
COUNTY TRUSTEE; HAROLD  
STERLING, SHELBY COUNTY 
ASSESSOR OF PROPERTY; JOHN  
ROBERTSON, CLERK & MASTER OF 
THE CHANCERY COURT FOR THE 
THIRTIETH JUDICIAL DISTRICT and 
SHELBY COUNTY, TENNESSEE

Court:TCA

Attorneys: 

For the Plaintiff/Appellee,         For the Plaintiffs/Appellees,  
Sunburst Bank:                      Carlton Barnes and Alma Jo Barnes:

S. Russell Headrick                 Richard L. Winchester
John S. Golwen                      Memphis, Tennessee
Memphis, Tennessee                  
            
For the Defendants/Appellants,      For the Defendants/Appellants, 
Robert Patterson, Jr., Shelby       W. J. Wallace and Norma Wallace:
County Trustee, Harold Sterling, 
Shelby County Assessor              Roger A. Stone
of Property, John Robertson,        Memphis, Tenn.
Clerk & Master of The Chancery 
Court for the Thirtieth Judicial 
District and Shelby County, Tenn.:

Lynn Cobb             
Danny Presley                                              
Memphis, Tennessee                           


Judge: LILLARD

First Paragraph:

In this case, the trial court set aside the tax sale of a tract of
realty because the lack of sufficient notice to the property owners
and the mortgagor violated their constitutional right to due process. 
Relying on Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.
Ct. 2706, 77 L. Ed. 2d 180 (1983), we affirm. AFFIRMED AND REMANDED.

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

STATE OF TENNESSEE
vs.
JERRY BLAYLOCK

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

RICHARD W. DEBERRY (On Appeal)      JOHN KNOX WALKUP
Assistant Public Defender           Attorney General & Reporter
24th Judicial District
P.O. Box 663                        ELLEN H. POLLACK
Camden, TN 38320                    Assistant Attorney General
                                    450 James Robertson Pkwy.
STEPHEN HALE (At Trial)             Nashville, TN 37243-0493
Attorney At Law
P.O. Box 331                        ROBERT RADFORD
Bolivar, TN 38008                   District Attorney General
                                    P.O. Box 686
                                    Huntingdon, TN 38344-0686

                                    JOHN OVERTON
                                    Assistant Dist. Attorney General
                                    Main Street
                                    Savannah, TN 38372                          

Judge: WITT

First Paragraph:

The defendant, Jerry Blaylock, appeals the conviction and sentence he
received in the Circuit Court of Hardin County.  The indictment
alleges as count (1) possession of cocaine with intent to manufacture,
deliver, or sell, a Class B felony, and as count (2) possession of
marijuana, a misdemeanor.  The jury convicted the defendant on both
counts and determined that fines in the amount of $75,000 on count (1)
and $1,250 on count (2) were appropriate.  After a sentencing hearing,
the court imposed the fines and ordered a mid-Range I sentence on
count (1) of ten years and the maximum sentence on count (2), eleven
months, twenty-nine days, to run concurrently.  The trial court
declined to order any form of alternative sentencing. AFFIRMED.

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

WAYNE DILLARD CARVER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:

Laura Rule Hendricks                John Knox Walkup
606 W. Main Street, Suite 350       Attorney General & Reporter
P.O. Box 84                 
Knoxville, TN 37901-0084            Peter M. Coughlin
                                    Assistant Attorney General
                                    425 Fifth Avenue North                                  
                                    2d Floor, Cordell Hull Building
                                    Nashville, TN 37243-0493
                        
                                    Randall E. Nichols
                                    District Attorney 
                            
                                    Ms. Marsha Selecman
                                    Asst District Attorney General 
                                    District Attorney General's Office
                                    City-County Building
                                    Knoxville, TN 37902                         

Judge: BYERS

First Paragraph:

The petitioner was convicted of murder during the commission of a
felony on April 9, 1987 by jury trial, and he was sentenced to life in
prison for this crime.  On March 5, 1991, he filed a petition for
post-conviction relief claiming incompetence of counsel.  The trial
judge denied the petition of the Appellant. AFFIRMED.

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

STATE OF TENNESSEE
vs.
TYRONE CLAY

Court:TCCA

Attorneys:   

For the Appellant:                  For the Appellee:

VANEDDA PRINCE                      CHARLES W. BURSON
Post Office Box 26                  Attorney General and Reporter
Union City, TN  38261   
(ON APPEAL)                         GEORGIA BLYTHE FELNER
                                    Assistant Attorney General                          
                                    Criminal Justice Division
STEVE DAVIS                         450 James Robertson Parkway
District Public Defender            Nashville, TN 37243-0493
P. O. Box 742                   
Dyersburg, TN  38025-0742           C. PHILLIP BIVENS
(AT TRIAL)                          District Attorney General

                                    JAMES E. LANIER
                                    Asst. District Attorney General
                                    P. O. DRAWER E
                                    DYERSBURG, TN  38024                       

Judge: Hayes

First Paragraph:

The appellant, Tyrone Clay, presents a delayed appeal challenging the
length of sentences imposed by the Lake County Circuit Court.  On the
morning of the appellant's scheduled trial, a plea agreement was
reached, whereby the appellant agreed to plead guilty to three class B
felony sales of cocaine in exchange for three concurrent sentences as
a range I offender. In this appeal, the appellant specifically
contends that the trial court failed to consider applicable mitigating
factors which resulted in an excessive sentence. AFFIRMED.

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

MONROE E. DAVIS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:

MICHAEL E. SCHOLL                   CHARLES W. BURSON
212 Adams Avenue                    Attorney General and Reporter
Memphis, TN  38103  
                                    KENNETH W. RUCKER
                                    Assistant Attorney General                          
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    WILLIAM GIBBONS
                                    District Attorney General

                                    RHEA CLIFT
                                    Asst. District Attorney General
                                    Criminal Justice Complex
                                    Suite 301
                                    201 Poplar Street
                                    Memphis, TN  38103                         

Judge: Hayes

First Paragraph:

The appellant, Monroe E. Davis, appeals the Shelby County Criminal
Court's dismissal of his petition for post-conviction relief.  On
October 6, 1989, the appellant pled guilty to one count of second
degree murder and one count of petit larceny. AFFIRMED.

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

STATE OF TENNESSEE
vs.
JERRY WAYNE EDISON

Court:TCCA

Attorneys: 

For Appellant:                      For Appellee:
    
Lu Ann Ballew                       Charles W. Burson
Asst. Public Defender               Attorney General & Reporter
P.O. Box 416
Dandridge, TN  37725                Michael J. Fahey, II
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493   
    
                                    James L. Gass
                                    Asst District Attorney General
                                    P.O. Box 70
                                    Dandridge, TN  37725-0070                         

Judge: WADE

First Paragraph:

A jury found the defendant, Jerry Wayne Edison, guilty of DUI; the
trial court imposed a sentence of eleven months and twenty-nine days,
suspended after the service of seven days in jail, and revoked the
defendant's license for one year.  The sole issue on appeal is whether
the trial court erred by admitting the results of the defendant's
breath test into evidence at trial. AFFIRMED.

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

STATE OF TENNESSEE
vs.
GEORGE E. MARTIN, JR.

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:

George Morton Googe                 Charles W. Burson
District Public Defender            Attorney General of Tennessee
     and                                and
Pamela J. Drewery                   Robin L. Harris
Assistant Public Defender           Asst Attorney General of Tennessee 
227 W. Baltimore Street             450 James Robertson Parkway     
Jackson, TN 38301                   Nashville, TN 37243-0493

                                    Jerry Woodall
                                    District Attorney General
                                        and
                                    Nick Nicola
                                    Asst District Attorney General
                                    P.O. Box 2825
                                    Jackson, TN 38302                         

Judge: Tipton

First Paragraph:

The defendant, George E. Martin, Jr., appeals as of right from his
conviction by a jury in the Circuit Court of Madison County for
possession with the intent to sell cocaine, a Class B felony.  The
trial court sentenced the defendant as a Range I, standard offender to
nine years to serve ninety days in the county jail and eight years and
nine months on community corrections.  The trial court also imposed a
fine of two thousand dollars. AFFIRMED.

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

JIMMY LLOYD McCURRY
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 dismissal of the petitioner's petition for writ of habeas
corpus.  The record was filed on June 3, 1997, and the petitioner
filed his brief on June 18, 1997.

URL:http://www.tba.org/tba_files/TCCA/MCCURRY1_ORD.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
KERWIN L. WALTON

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

A. C. WHARTON                       JOHN KNOX WALKUP
(of counsel on appeal)              Attorney General & Reporter
Shelby County Public Defender
                                    JANIS L. TURNER
W. MARK WARD                        Assistant Attorney General
(on appeal)                         450 James Robertson Parkway
Assistant Public Defender           Nashville, Tennessee 37243 0493
147 Jefferson, Ste. 900             
Memphis, Tennessee   38103          WILLIAM L. GIBBONS
                                    District Attorney General
BETTY THOMAS
(at trial)                          KEVIN RARDIN
Assistant Public Defender           KAREN COOK          
Shelby County PD's Office           Asst District Attorneys General
201 Poplar Ave. - Second Floor      201 Poplar Ave. Ste. 301
Memphis, Tennessee 38103            Memphis, Tennessee 38103 1947                        

Judge: RILEY

First Paragraph:

The defendant, Kerwin L. Walton, appeals as of right from the sentence
imposed by the Shelby County Criminal Court.  He was convicted of
reckless homicide, a Class D felony.  As a Range I, Standard Offender,
the trial court sentenced the defendant to four (4) years
incarceration, to run consecutively to a twenty-five (25) year
sentence for aggravated arson arising out of the same incident.  In
challenging the sentence for reckless homicide, defendant presents two
(2) issues for review: (1) whether the trial court imposed an
excessive sentence by relying upon non-statutory enhancement factors;
and (2) whether the trial court erred by ordering his sentence to be
served consecutively.  The judgment of the trial court is  AFFIRMED.

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

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