TBALink Opinion-Flash

October 17, 1997 -- Volume #3 -- Number #103

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
04-New Opinons From TCA
10-New Opinons From TCCA

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George Dean
TBALink Chief Editor


PATRICIA J. GUNBY           
and JANICE HAMIL
vs.
THE EQUITABLE LIFE ASSURANCE    
SOCIETY OF THE UNITED STATES,   
DAVID BRYAN, and BOB DUNHAM

Court:TCA

Attorneys:

STEPHEN H. BILLER
MAURICE WEXLER
BAKER, DONELSON, BEARMAN 
& CALDWELL, P.C.
Memphis, Tennessee
Attorneys for Appellants

TIM EDWARDS
JAMES F. HORNER
GLASSMAN, JETER, EDWARDS & WADE
Memphis, Tennessee
Attorneys for Appellees                          

Judge:HIGHERS

First Paragraph:

In these sexual discrimination/sexual harassment cases, consolidated
on appeal,  Plaintiffs, Patricia Gunby ("Gunby") and Janice Hamil
("Hamil"), filed suit against Defendants, The Equitable Life Assurance
Society of the United States ("The Equitable"), David Bryan ("Bryan")
and Bob Dunham ("Dunham"), seeking damages for Defendants' alleged
acts of sexual discrimination and sexual harassment.  The Defendants
filed a motion to compel arbitration and to stay the action pending
arbitration or, in the alternative, to dismiss.  The trial court
denied Defendants' motions.  Defendants appeal the judgment of the
trial court arguing that the trial court erred in denying Defendants'
motion to compel Plaintiffs to submit their claims for sexual
harassment and sexual discrimination to arbitration.  For the reasons
stated hereafter, we reverse the judgment of the trial court.

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

JESSIE W. JONES and wife, 
MELISSA A. JONES
vs. 
TIPTON COUNTY, TENNESSEE

Court:TCA

Attorneys:

W. Timothy Hayes, Jr.; The Hardison Law Firm of Memphis, 
for Appellee

Raleigh E. Sanford, Jr. of Rosemark
For Appellants                          

Judge:CRAWFORD

First Paragraph:

This case involves a suit filed pursuant to the Tennessee Governmental
Tort Liability Act (TGTLA).  Plaintiffs Jessie and Melissa Jones
appeal the order of the trial court granting summary judgment to
defendant Tipton County, Tennessee.

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

WALTER L. WALSH, JR. and    
PREMIER PROPERTIES  
PARTNERSHIP, a Tennessee General    
Partnership 
    
BA, INC. f/k/a MEDICAL DEVICES, 
INC., a Tennessee Corporation, ALAN 
C. FITZPATRICK and BEVERLY R.   
FITZPATRICK

Court:TCA

Attorneys:

Timothy A. Ryan, III, Memphis, Tennessee
Attorney for Defendants/Appellants.


Robert E. Orians, MARTIN, TATE, MORROW & MARSTON, P.C., Memphis, Tn
Attorney for Plaintiffs/Appellees.                          

Judge:FARMER

First Paragraph:

Defendants Alan C. Fitzpatrick and Beverly R. Fitzpatrick appeal the
trial court's order which granted the motion for summary judgment
filed by Plaintiffs/Appellees Walter L. Walsh, Jr., and Premier
Properties Partnership and which awarded the Partnership a judgment of
$38,500 on its claim for breach of fiduciary duty against the
Fitzpatricks.  We reverse the trial court's judgment based on our
conclusion that a genuine issue of material fact exists as to whether
the Fitzpatricks breached their fiduciary duty to the Partnership when
they amended a Partnership lease without the consent of all the
partners.

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

BUD CASH, JR.
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant:                  For the Appellee:

Douglas A. Trant                    John Knox Walkup
900 S. Gay Street                   Attorney General and Reporter
Suite 1502                          
Knoxville, TN 37902                 Sandy R. Copous         
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493


                                    Jerry N. Estes
                                    District Attorney General

                                    G. Scott Kanavos
                                    Assistant District Attorney
                                    93 N. Ocoee Street
                                    Cleveland, TN 37364                          

Judge: Barker

First Paragraph:

The appellant, Bud Cash, Jr., appeals as of right the dismissal by the
Bradley County Criminal Court of his petition for post-conviction
relief.

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

STATE OF TENNESSEE
vs.
CLIFTON EDWARD ELLISON

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:


JOHN H. HENDERSON                   JOHN KNOX WALKUP        
District Public Defender            Attorney General & Reporter
407 C Main St.
P.O. Box 68                         GEORGIA BLYTHE FELNER
Franklin, TN   37065-0068           Counsel for the State
                                    450 James Robertson Pkwy.                               
                                    Nashville, TN  37243-0493
                
                                    JOSEPH D. BAUGH
                                    District Attorney General

                                    DEREK SMITH
                                    Asst. District Attorney General
                                    P.O. Box 937
                                    Franklin, TN   37065-0937                          

Judge:PEAY

First Paragraph:

The defendant was indicted for joyriding, theft and two counts of
aggravated assault by use of a deadly weapon. The State nolled the
theft charge and one count of aggravated assault.  A jury convicted
the defendant of joyriding and the remaining count of aggravated
assault, Class C.  After a hearing, he was sentenced as a Range I
standard offender on the felony charge to four years incarceration,
suspended, with five years probation.  He was sentenced on the
joyriding charge to eleven months, twenty-nine days in jail,
suspended, with eleven months, twenty-nine days probation, concurrent
to the aggravated assault sentence.  As a condition of each of his
periods of probation, he was ordered to serve one hundred days, day
for day, in the county jail.  In this direct appeal, the defendant
challenges the sufficiency of the evidence on the assault conviction
and complains about his sentences.  Upon our review of the record, we
affirm the judgment below.

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

STATE OF TENNESSEE
vs.
JIMMY D. JOHNSON

Court:TCCA

Attorneys:
For the Appellant:              For the Appellee:

Raymond Mack Garner             Charles W. Burson
District Public Defender        Attorney General of Tennessee
     and                        and             
Natalee Staats Hurley           Robin L. Harris
Assistant Public Defender       Assistant Attorney General of Tennessee
318 Court Street                450 James Robertson Parkway     
Maryville, TN 37804-4912        Nashville, TN 37243-0493

                                Michael L. Flynn
                                District Attorney General
                                and
                                Kirk Andrews
                                Assistant District Attorney General
                                363 Court Street
                                Maryville, TN 37804-5906                          

Judge:Tipton

First Paragraph:

The defendant, Jimmy D. Johnson, appeals as of right from the sentence
he received in the Blount County Circuit Court for the offense of
incest, a Class C felony.  The trial court sentenced the defendant as
a Range I, standard offender to five years, requiring him to serve one
year in the county jail and four years in the Community Corrections
Sex Offenders' Program.

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

STATE OF TENNESSEE
vs.
RANDY A. McDONALD

Court:TCCA

Attorneys:
For the Appellant:              For the Appellee:

John H. Henderson               Charles W. Burson
District Public Defender            Attorney General of Tennessee
407 Main Street                 and
Franklin, TN 37065-0068         Clinton J. Morgan
                                Asst Attorney General of Tennessee                  
                                450 James Robertson Parkway     
                                Nashville, TN 37243-0493

                                Joseph D. Baugh, Jr
                                District Attorney General
                                and
                                Emily Walker
                                Assistant District Attorney General
                                Williamson County Courthouse
                                P.O. Box 937
                                Franklin, TN 37065-0937                          

Judge:Tipton

First Paragraph:

The defendant, Randy A. McDonald, was convicted in the Circuit Court
of Williamson County for driving under the influence of an intoxicant
(D.U.I.), fourth offense, driving on a revoked license (D.O.R.L.),
second offense, and evading arrest, Class A misdemeanors, and reckless
driving and resisting arrest, Class B misdemeanors.  For the D.U.I.
conviction, he was fined one thousand dollars and sentenced to eleven
months and twenty-nine days in the county jail with all but nine
months at seventy-five percent suspended.  The trial court fined the
defendant five hundred dollars and sentenced the defendant to eleven
months and twenty-nine days in the county jail to be suspended for the
evading arrest and D.O.R.L. convictions, respectively.  For the
reckless driving and resisting arrest, the court imposed fines of five
hundred dollars and sentences of six months each to be suspended.  The
trial court ordered the defendant to serve his sentences for D.O.R.L.,
evading arrest, reckless driving and resisting arrest concurrent with
each other but consecutive to the D.U.I.

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

STATE OF TENNESSEE
vs.
TONEY L. MOORE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

JOHN H. HENDERSON                   JOHN KNOX WALKUP
District Public Defender            Attorney General and Reporter

LARRY D. DROLSUM                    GEORGIA BLYTHE FELNER
Asst District Public Defender       Assistant Attorney General
407 C Main Street                   450 James Robertson Parkway
P.O. Box 68                         Nashville, TN 37243-0493
Franklin, TN 37065-0068
                                    JOSEPH D. BAUGH, JR.
                                    District Attorney General

                                    JEFF BURKS
                                    Asst District Attorney General
                                    Williamson County Courthouse
                                    Suite G-6
                                    P.O. Box 937
                                    Franklin, TN 37065-0937                         

Judge:RILEY

First Paragraph:

The defendant, Toney L. Moore,  was convicted by a Williamson County
jury of driving after having been declared a Motor Vehicle Habitual
Offender pursuant to Tenn. Code Ann. S 55-10-616.  He was sentenced to
four (4) years in the Tennessee Department of Correction.  On appeal,
he challenges the sufficiency of the convicting evidence and argues
that the trial court erred in denying alternative sentencing.  We
affirm the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
TONEY MOORE

Court:TCCA

Attorneys:


FOR THE APPELLANT:                  FOR THE APPELLEE:

JOHN H. HENDERSON                   JOHN KNOX WALKUP
District Public Defender            Attorney General & Reporter

LARRY D. DROLSUM                    GEORGIA BLYTHE FELNER
Assistant Public Defender           Assistant Attorney General
407-C Main St.                      450 James Robertson Parkway
P.O. Box 68                         Nashville, Tennessee   37243 0493
Franklin, Tennessee 37065-0068                                                      
                                    JOSEPH D. BAUGH, JR.
                                    District Attorney General
                                                                                                                
                                    JEFFREY P. BURKS
                                    Asst District Attorney General
                                    Williamson County Courthouse
                                    Ste. G-6, P.O. Box 937
                                    Franklin, Tennessee  37065 0937
Judge:RILEY

First Paragraph:

The appellant, Toney Moore, appeals the Williamson County Criminal
Court's order revoking his probation and requiring the sentence to be
served consecutively to a new conviction.  He presents two issues for
our review: (1) whether the trial court abused its discretion in
failing to reinstate his probation; and (2) whether the trial court
erred in requiring the original sentence to be served consecutively to
the conviction triggering the probation violation.  The judgment of
the trial court is AFFIRMED.

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

STATE OF TENNESSEE
vs.
MARK T. SCISNEY     
Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

ROBERT S. PETERS                    JOHN KNOX WALKUP 
Swafford, Peters & Priest           Attorney General & Reporter
100 First Avenue, S.W.
Winchester, TN  37398               DEBORAH A. TULLIS
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493

                                    C. MICHAEL LAYNE 
                                    District Attorney General

                                    STEPHEN E. WEITZMAN
                                    Asst District Attorney General
                                    307 South Woodland 
                                    P.O. Box 147
                                    Manchester, TN  37355                          

Judge: WOODALL

First Paragraph:

A Coffee County jury found Defendant guilty of driving under the
influence while operating a commercial motor vehicle in violation of
Tennessee Code Annotated section 55-50-408.  He appeals as of right
pursuant to Rule 3, Tennessee Rules of Appellate Procedure.  In a two
(2) prong attack upon the sufficiency of the evidence, Defendant
argues that the State failed to prove that his blood alcohol
concentration was .04 or more, and also argues that the evidence was
insufficient as the State proved his "alcohol by weight" rather than
his blood alcohol concentration as required by the statute.  The
judgment of the trial court is affirmed.

URL:http://www.tba.org/tba_files/TCCA/scisneym_opn.WP6
URL:http://www.tba.org/tba_files/TCCA/scisneym_con.WP6
URL:http://www.tba.org/tba_files/TCCA/scisneym_dis.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
JEFF WELCH

Court:TCCA

Attorneys:
FOR THE APPELLANT                   FOR THE APPELLEE 

Charles W. Burson                   Philip A. Condra
Attorney General & Reporter         Public Defender
                                    204 Betsy Park Drive
Michael J. Fahey, II                P.O. Box 220
Assistant Attorney General          Jasper, TN  37347
450 James Robertson Parkway
Nashville, TN  37243-0493
                
David E. Crockett
District Attorney General

Lisa Nidiffer Rice
Assistant District Attorney General
Rte. 19 Box 99
Johnson City, TN  37601                          

Judge: BYERS

First Paragraph:

The trial court found that a prison disciplinary finding which
assessed restitution in the sum of $100.00 against the defendant for
damages caused to a prison guard's uniform, when he was assaulted by
the defendant, barred the prosecution of the defendant on a charge of
assault and battery.

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

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