TBALink Opinion-Flash

September 18, 1997 -- Volume #3 -- Number #089

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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MARY JOYCE BEATY 
vs. 
JACK LLOYD BEATY, SR.

Court:TCA

Lisa M. Carson; Petersen, Buerger, Moseley & Carson of Franklin 
    For Appellee 
Thomas W. Hardin; Hardin & Parkes of Columbia 
    For Appellant

Judge: CRAWFORD

First Paragraph:

This appeal involves post-divorce proceedings.  Plaintiff, Mary Joyce
Beaty (Wife), appeals the judgment of the trial court awarding an
offset of $17,102.30 to defendant, Jack Lloyd Beaty, Sr. (Husband),
against $9,794.52 in post judgment interest he owed to Wife.

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

CLELLAND DAVID COLLINS, JR.
and wife, CAROL V. COLLINS
vs.
ROGER V. WELLBROOK and wife,
CAROLE I. WELLBROOK

Court:TCA

JACKY O. BELLAR 
212 Main Street 
P. O. Box 332 
Carthage, TN 37030 
Attorney for Plaintiffs/Appellees

JAMES B. DANCE 
216 N. Main Street 
P. O. Box 278 Carthage, TN 37030 
Attorney for Defendants/Appellants

Judge: CANTRELL

First Paragraph:

Appellants present one issue for our review:  Whether the trial court
erred in finding that the statute of frauds did not bar appellees'
recovery of $10,000 plus interest loaned to appellants pursuant to an
oral contract.  Though this contract falls within the statute of
frauds, we find that, under the circumstances of this case, appellants
are equitably estopped from relying on the statute to avoid repayment
of the loan under the terms of the contract.  Accordingly, we affirm
the decision of the trial court.

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

EDNA DANIELS
vs.
DAVID WAYNE DAVIS

Court:TCA

For the Plaintiff/Appellant:            For the Defendant/Appellee:
Keith Jordan                            Thomas F. Mink, II 
Nashville, TN                           Keith W. Blair 
                                        Nashville, TN
Judge: KOCH

First Paragraph:

This appeal involves a woman who fell down a flight of basement stairs
in her son's home.  The woman filed suit against her son in the
Circuit Court for Davidson County alleging that her injuries were
caused by the removal of a handrail and the obstruction of the
illumination on the stairs.  The trial court, relying on Eaton v.
McClain, 891 S.W.2d 587 (Tenn. 1994), granted the son's motion for
summary judgment.  The woman asserts on this appeal that the existence
of genuine factual disputes should have prevented granting a summary
judgment.  While the facts in this case are essentially undisputed, we
have determined that the conclusions to be drawn from the facts are
not.  Accordingly, we vacate the summary judgment.

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

FIRST AMERICAN NATIONAL BANK 
vs. 
NATIONAL PROJECT SERVICES, INC

Court:TCA

ANTHONY J. McFARLAND 
CLISBY H. BARROW 
BRYAN E. LARSON 
2700 First American Center 
Nashville, TN 37238 
Attorneys for Plaintiff/Appellee

ALFRED H. KNIGHT 
215 Second Avenue, North 
Nashville, TN 37201

NADER BAYDOUN 
JOHN I. HARRIS, III 
Nashville City Center 
511 Union Street, Suite 2420 
Nashville, TN 37219-1716 
Attorneys for Defendant/Appellant

Judge: CANTRELL

First Paragraph:

A small business asserts that its bank had an implied duty to give
reasonable notice of its intent to stop extending credit to the
business; that such implied promise was not within the statute of
frauds; and that even if it were within the statute of frauds, the
bank was estopped to raise the statute as a defense.  The Chancery
Court of Davidson County granted summary judgment to the bank.  We
hold that in this case the bank did not have a duty to inform the
customer that it was terminating the customer's credit.  Therefore, 
we affirm the lower court's order.

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

JOHN L. GOODWIN, III 
vs. 
HENDERSONVILLE POLICE  DEPT., DAVID L. KEY,
Police Chief, and R.J. (HANK) THOMPSON, Mayor

Court:TCA

 For the Plaintiff/Appellant:       For the Defendants/Appellees:
John L. Goodwin, III                John R. Bradley 
Pro Se                              Hendersonville, TN

Judge: KOCH

First Paragraph:

This appeal concerns the efforts of a state prisoner to obtain access
to the police investigative files relating to his convictions.  The
prisoner filed suit against the Hendersonville Police Department in
the Circuit Court for Sumner County seeking access to the department's
investigative files on the grounds they contained exculpatory evidence
that had been withheld during his criminal prosecution.  The police
department responded by asserting that criminal proceedings involving
the prisoner were still open because his case had been remanded for
resentencing and that the prisoner did not have standing to seek
relief under the Public Records Act.  Based on the pleadings, the
trial court determined that while the prisoner's prosecution was over,
the prisoner was not entitled to relief under the Public Records Act.
The prisoner has appealed.  We have determined that we cannot reach
the merits of this case because the prisoner's notice of appeal was
untimely.

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

CHRISTOPHER JACOBSEN and JEFFREY JACOBSEN, 
Beneficiaries of the Estate of Edna M. Nissen 
vs. 
RUTH FLATHE, in her capacity as Executrix of the
Estate of Edna M. Nissen and in her Individual Capacity as a
Beneficiary of the Estate of Edna M. Nissen

Court:TCA

For the Plaintiff/Appellee:         For the Defendant/Appellant: 
M. Bradley Gilmore                  G. Thomas Nebel 
Christina Norris                    John B. Carlson 
Parker, Lawrence, Cantrell & Dean   Williams & Associates
Nashville, TN                       Nashville, TN

Judge: KOCH

First Paragraph:

This appeal involves an intrafamily dispute over the meaning of an
elderly widow's will.  After the will was admitted to probate in the
Chancery Court for Williamson County, the sons of one of the legatees
who had predeceased the testator filed a petition for judicial
construction asserting that they were entitled to receive their
mother's share under the antilapse statute.  The trial court granted a
summary judgment in the sons' favor.  On this appeal, the estate's
personal representative, who is also a legatee, asserts that the will
should be construed to give her the predeceased legatee's share.  We
have determined that the trial court correctly decided that the gift
to the deceased legatee did not lapse and, therefore, affirm the
summary judgment.

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

STATE OF TN, ex rel., SHERRY McALLISTER 
vs. 
DANNY GOODE

Court:TCA 

For the Plaintiff/Appellee:         For the Defendant/Appellant: 
John Knox Walkup                    Anita M. Holden 
Attorney General and Reporter       Lebanon, TN

James H. Tucker, Jr.
Assistant Attorney General

Judge: KOCH

First Paragraph:

This appeal involves a non-custodial parent's liability for a sizeable
child support arrearage accumulated over eight years.  The State of
TN petitioned the Circuit Court for Sumner County to require
the non-custodial parent to pay the arrearage and to find the
non-custodial parent in contempt.  The non-custodial parent responded
by requesting a reduction in his child support obligation and by
asserting that he was not in arrears because of a side agreement with
the custodial parent to reduce his child support obligation.  The
trial court declined to give effect to the side agreement or to reduce
the non-custodial parent's child support obligation.  It determined
that the non-custodial parent was in willful civil contempt and
ordered him to pay the $42,700 arrearage to the custodial parent.  The
non-custodial parent takes issue on this appeal with the conclusions
that he owed $42,700 in child support, that he was not entitled to a
prospective reduction in his child support obligation, and that he was
in willful civil contempt.  We have determined that the judgment for
the arrearage should be affirmed but that the judgment for contempt
should be reversed and that the case should be remanded for the
computation of the non-custodial parent's prospective child support
obligation.

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

JEREMY PARENT, A Minor, b/n/f Parents, and 
Guardians MARTIN PARENT and JUDITH PARENT 
vs. 
STATE OF TN

Court:TCA

Michael A. Kent; Cleary & Lockett, P.C. of Chattanooga 
    For Plaintiff-Appellant 
John Knox Walkup, Attorney General and Reporter
Mary M. Bers, Assistant Attorney General 
David T. Whitefield, Senior Counsel 
    For Defendant-Appellee

Judge: CRAWFORD

First Paragraph:

This is an appeal of a TN Claims Commission case.  Plaintiffs,
Jeremy Parent, a minor, by his next friend, and his parents Martin
Parent and Judith Parent (the Parents), appeal the order of the
TN Claims Commission (Commission) granting the State of
TN's motion to dismiss the notice of claim for failure to state
a claim upon which relief can be granted.

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

STATE OF TN 
vs. 
TOMMY A. BACON

Court:TCCA

FOR THE APPELLANT:                  FOR THE APPELLEE: 
Stephen M. Wallace                  Charles W. Burson 
District Public Defender            Attorney General & Reporter

Gale K. Flanary                     Peter M. Coughlan 
Assistant Public Defender           Assistant Attorney General 
P.O. Box 839                        Criminal Justice Division 
Blountville, TN 37617-0839          450 James Robertson Parkway 
                                    Nashville, TN 37243-0493

H. Greeley Wells, Jr. 
District Attorney General

Gregory A. Newman 
Asst District Attorney General 
P.O. Box 526
Blountville, TN 37617-0526

Judge: SUMMERS

First Paragraph:

The appellant, Tommy A. Bacon, was indicted for selling over .5 ounces
of marijuana, possession of over .5 ounces of marijuana with intent to
sell, and possession of drug paraphernalia.  Following a summary
administrative forfeiture, the appellant moved to dismiss his criminal
charges.  He argued that the double jeopardy clause prohibited
criminal prosecution.  The trial judge denied the appellant's motion.
He pled guilty to all three charges, appealing a certified question of
law regarding the double jeopardy issue to this Court.  Upon review,
we affirm the judgment of the trial court.

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

STATE OF TN 
vs. 
CARL ALEXANDER COLE

Court:TCCA

FOR THE APPELLANT                   FOR THE APPELLEE
Clifford K. McGown, Jr.             John Knox Walkup
113 North Court Square              Attorney General and Reporter
Waverly, TN 37185                   450 James Robertson Parkway
                                    Nashville, TN 37243 0493
George Morton Googe     
District Public Defender            Elizabeth T. Ryan           
227 West Baltimore Street           Assistant Attorney General
Jackson, TN 38301                   450 James Robertson Parkway
                                    Nashville, TN 37243 0493
Jeffrey J. Mueller
Assistant Public Defender           James G. Woodall
227 West Baltimore Street           District Attorney General
Jackson, TN 38301                   225 Martin Luther King Drive
                                    Jackson, TN 38302 2825

                                    Shaun A. Brown
                                    Asst District Attorney General
                                    225 Martin Luther King Drive
                                    Jackson, TN 38302 2825
Judge: Barker

First Paragraph:

The Appellant, Carl Alexander Cole, appeals as of right his conviction
and sentence for the sale of more than 0.5 grams of cocaine.  He
argues on appeal that: (1)  The trial court erred in refusing to
permit him to develop proof concerning policies and procedures with
regard to the use of informants in undercover drug purchases and in
refusing his request to make an offer of proof. (2) The trial court
erred in refusing to permit him to question the confidential informant
about the informant's background and employment history. (3) The
sentence imposed by the trial court was excessive and the trial court
erred by not sentencing him to an alternative sentence, such as the
community correction program. We have reviewed the record on appeal
and find no merit to the Appellant's argument.  We affirm.

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

STATE OF TN 
vs. 
WILLIE L. COVINGTON

Court:TCCA

FOR THE APPELLANT:                  FOR THE APPELLEE:
Brett B. Stein                      John Knox Walkup
Attorney at Law                     Attorney General & Reporter
100 North Main Street, Suite 3102   500 Charlotte Avenue
Memphis, TN  38103                  Nashville, TN  37243-0497

                                    Deborah A. Tullis
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493

                                    William L. Gibbons
                                    District Attorney General
                                    201 Poplar Avenue, Suite 301
                                    Memphis, TN  38103

                                    David Henry
                                    Asst District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN  38103

Judge: Jones

First Paragraph:

The appellant, Willie L. Covington (defendant), appeals as of right
from a judgment of the trial court declaring him to be a habitual
motor vehicle offender and barring him from operating a motor vehicle
in the State of TN.  In this Court, the defendant does not
challenge the validity or sufficiency of the prior convictions alleged
in the petition and used by the trial court to support the entry of
its judgment.  However, the defendant contends the use of the prior
convictions to bar him from operating a motor vehicle constitutes an
additional civil penalty violative of the Double Jeopardy Clause of
the Fifth Amendment.

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

OSCAR ELLIS, JR. 
vs. 
STATE OF TN

Court:TCCA

FOR THE APPELLANT:                  FOR THE APPELLEE:
OSCAR ELLIS, JR., pro se            JOHN KNOX WALKUP 
Inmate #25042-83                    Attorney General & Reporter
F.C.I. Memphis 
P.O. Box 34550 (TN-B)               M. ALLISON THOMPSON
Memphis, TN  38184-0550             Assistant Attorney General
                                    2nd Floor, Cordell Hull Building
                                    425 Fifth Avenue North 
                                    Nashville, TN  37243

                                    JOHN W. PIEROTTI
                                    District Attorney General

                                    KAREN COOK 
                                    Asst District Attorney General
                                    201 Poplar Avenue, Ste. 301
                                    Memphis, TN  38103  
Judge: WOODALL

First Paragraph:

The Petitioner, Oscar Ellis, Jr., appeals the order of the Shelby
County Criminal Court dismissing his pro se petition to vacate his
guilty plea or in the alternative for post-conviction relief.  The
trial court treated the petition as one for post-conviction relief and
summarily dismissed it as barred by the statute of limitations.  The
Petitioner's primary argument on appeal is that the Post Conviction
Procedure Act that became effective May 10, 1995, gives him a new
one-year time period in which to file a Petition for Post-Conviction
Relief.  After a review of the record, we affirm the lower court's
denial of post conviction relief.

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

STATE OF TN 
vs. 
LUCKY HUMPHREYS

Court:TCCA

FOR THE APPELLEE:               FOR THE APPELLANT:
WILLIAM K. RANDOLPH             JOHN KNOX WALKUP
P. O. Box 611                   Attorney General and Reporter
Dyersburg, TN 38025-0611        
                                DEBORAH A. TULLIS                                   
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                ELIZABETH T. RICE
                                District Attorney General

                                MARK E. DAVIDSON
                                Assistant District Attorney General
                                302 Market Street
                                Somerville, TN 38068
Judge: RILEY

First Paragraph:

The state appeals the dismissal of an indictment for driving under the
influence of an intoxicant.  The trial court found that the
post-arrest detention of the defendant constituted punishment and
dismissed the indictment based upon a finding of double jeopardy.  We
reverse and reinstate the indictment.

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

ROBERT E. PARKER 
vs. 
STATE OF TN

Court:TCCA

FOR THE Appellant                   FOR THE APPELLEE
Thomas C. Fila                      John Knox Walkup
One Memphis Place                   Attorney General and Reporter
200 Jefferson Avenue, Suite 1025    450 James Robertson Parkway
Memphis, TN 38103                   Nashville, TN 37243 0493
        
                                    Clinton J. Morgan
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243 0493

                                    John W. Pierotti
                                    District Attorney General
                                    201 Poplar Avenue
                                    Memphis, TN 38103 1947
                            
                                    David Henry
                                    Asst District Attorney General
                                    201 Poplar Avenue
                                    Memphis, TN 38103 1947
Judge: Barker

First Paragraph:

The appellant, Robert E. Parker, appeals as of right the judgment of
the Shelby County Criminal Court dismissing his petition for
post-conviction relief.  He argues on appeal that the trial court
erred in finding that he received the effective assistance of counsel.
He contends that the trial court was in error because his trial
counsel failed to conduct an adequate investigation, failed to
adequately and effectively confer with him prior to trial, and failed
to secure the attendance at trial of two witnesses the appellant
believed favorable to his defense.  Following our review of the record
on appeal, we find no reversible error and affirm the trial court's
dismissal of the post-conviction petition.

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

STATE OF TN 
vs. 
KERWIN L. WALTON

Court:TCCA

FOR THE APPELLANT:                  FOR THE APPELLEE:
W. Mark Ward                        John Knox Walkup 
Asst. Shelby Cty PD                 Attorney General & Reporter
147 Jefferson, Suite 900            500 Charlotte Avenue
Memphis, TN  38103                  Nashville, TN  37243-0497
(On Appeal)
                                    Susan Rosen
Betty Jo Thomas                     Assistant Attorney General
Asst. Shelby Cty PD                 450 James Robertson Parkway
201 Poplar Avenue, Suite 2-01       Nashville, TN  37243-0493
Memphis, TN  38103-1947     
(At Trial)                          William L. Gibbons
                                    District Attorney General
OF COUNSEL:                         201 Poplar Avenue, Suite 3-01
                                    Memphis, TN  38103-1947
A C Wharton, Jr.
Shelby County Public Defender       Kevin R. Rardin
201 Poplar Avenue, Suite 2-01       Asst District Attorney General
Memphis, TN  38103-1947             201 Poplar Avenue, Suite 3-01
                                    Memphis, TN  38103-1947

                                    Karen Cook
                                    Asst District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN  38103-1947
Judge: Jones

First Paragraph:

The appellant, Kerwin L. Walton (defendant), was convicted of
aggravated arson, a Class A felony, by a jury of his peers.  The trial
court, finding the defendant was a standard offender, imposed a Range
I sentence of confinement for twenty-five (25) years in the Department
of Correction.  The defendant presents one issue for review.  He
contends the sentence imposed by the trial court was excessive because
the trial court "improperly applied enhancement factors" and
"improperly relied on non-statutory enhancement factors."  After a
thorough review of the record, the briefs submitted by the parties,
and the law governing the issue presented for review, it is the
opinion of this Court that the judgment of the trial court should be
affirmed.

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

STATE OF TN 
vs. 
RANDY S. WATSON

Court:TCCA

FOR THE APPELLANT:                  FOR THE APPELLEE:
BRETT B. STEIN                      JOHN KNOX WALKUP 
100 N. Main Street                  Attorney General and Reporter
Number 3102
Memphis, TN 38103                   KENNETH W. RUCKER
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    WILLIAM L. GIBBONS
                                    District Attorney General

                                    REGINALD HENDERSON
                                    Asst District Attorney General
                                    201 Poplar Avenue, Suite 301 
                                    Memphis, TN 38103
Judge: RILEY

First Paragraph:

Appellant contends the Habitual Motor Vehicle Offender Act (HMVO Act)
violates double jeopardy principles.  On May 9, 1996, appellant was
declared an Habitual Motor Vehicle Offender (HMVO) based upon
appropriate prior convictions.  His motion to dismiss based upon
double jeopardy was denied. We  AFFIRM  the order of the trial court.
     
URL:http://www.tba.org/tba_files/TCCA/watasors_opn.WP6
Opinion-Flash

STATE OF TN 
vs. 
BOBBY G. WATKINS

Court:TCCA

FOR THE APPELLANT:                  FOR THE APPELLEE:
JAMES E. BROCKMAN                   JOHN KNOX WALKUP
203 TN Avenue South                 Attorney General and Reporter
P.O. Box 25
Parsons, TN 38363                   KENNETH W. RUCKER
                                    Assistant Attorney General
                                    425 5th Avenue North
                                    Nashville, TN 37243

                                    JERRY WOODALL
                                    District Attorney General

                                    DONALD ALLEN
                                    Asst District Attorney General
                                    P.O. Box 2825
                                    Jackson, TN 38302
Judge: WELLES

First Paragraph:

The Defendant, Bobby G. Watkins,  appeals as of right pursuant to Rule
3 of the TN Rules of Appellate Procedure.  He was convicted by
a Henderson County jury of one count of impersonation of a licensed
professional, a Class E felony, and one count of violation of the
private investigators licensing act, a Class A misdemeanor.  He was
sentenced to one year for the impersonation of a licensed professional
conviction and eleven months and twenty-nine days for the violation of
the private investigator licensing act, to be served concurrently. 
Both sentences were suspended and the Defendant was placed on
supervised probation conditioned upon his paying all fines and court
costs within ten months.  The Defendant appeals his convictions and
raises two issues: (1) That the evidence was insufficient to support
his convictions; and (2) that the trial court's instructing the jury
with a version of TN Code Annotated section 62-26-202 that was
amended after the crimes were committed was, in effect, a violation of
the prohibition against ex post facto laws.  After a careful review of
the record in this case, we affirm the judgment of the trial court.

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

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