TBALink Opinion-Flash

November 13, 1997 -- Volume #3 -- Number #118

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):
01-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
06-New Opinons From TCA
02-New Opinons From TCCA

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George Dean
TBALink Chief Editor


REGINA DARLENE HUNTER               
vs.
ED BROWN, JR.

Court:TSC

Attorneys:

For Plaintiff-Appellant:            For Defendant-Appellee:

JERROLD L. BECKER                   PATRICK C. COOLEY
Knoxville, TN                       Kingston, TN

                                    JOHN M. MCFARLAND
                                    Kingston, TN
                                    and
                                    THOMAS A. PAVLINIC
                                    Annapolis, MD
                                    As Amicus Curiae
                                                  
Judge:BIRCH

First Paragraph:

In this action for damages, the plaintiff, Regina Darlene Hunter,
alleged that as a child she was sexually abused by the defendant, Ed
Brown, Jr., but was unable to file this action prior to 1993 because
she repressed the memory of the abuse.  The trial court found no
reason to toll the statute of limitations and granted the defendant's
motion for summary judgment.  The Court of Appeals affirmed.

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

LaSALLE DUDLEY
vs.
RAYE P. DUDLEY

Court:TCA

Attorneys:          
David E. Caywood, 
Marc E. Reisman
Causey, Caywood, Taylor, McManus
& Bailey of Memphis, 
For Appellant Defendant-Appellee.           

Sherrie Miller of Memphis,
For Appellee

Judge:CRAWFORD

First Paragraph:

This is a divorce case.  Appellant Lasalle Dudley appeals the order of
the trial court awarding ex-wife Raye Dudley alimony in futuro of $250
per month and $2,500 in attorney fees.

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

LOUIS E. HEIDLE and wife            
DELORIS J. HEIDLE, a/k/a    
S S & Z PROPERTIES                                      
vs.
RANDALL L. McFARLAND

Court:TCA

Attorneys:

TOM McFARLAND OF KINGSTON FOR APPELLANT

JAMES W. BROOKS, JR., OF WARTBURG FOR APPELLEES
                          
Judge:Goddard

First Paragraph:

Randall L. McFarland appeals a judgment of the Chancery Court for
Morgan County, which found--in a suit brought against him by Louis and
Deloris Heidle--that a certain roadway which bisects Mr. McFarland's
property was a public road and required him to remove gates which he
had erected that impeded the free use of the roadway.

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

JEWELL MANESS
vs.
ESTATE OF ACIE LEE MANESS,
Deceased; JAMES LEE MANESS,
WILLIE MANESS & EDWARD MANESS

Court:TCA

Attorneys:

THOMAS ANDERSON, Lexington, Attorney for Plaintiff.

STEPHEN MILAM, Lexington, Attorney for Defendants.
                          
Judge:TOMLIN

First Paragraph:

Mrs. Jewell Maness ("Plaintiff") as administratrix of the estate of
Acie Lee Maness, her deceased husband, filed a petition in the
Chancery Court of Henderson County seeking to set aside or void a
fraudulent conveyance.  Named defendants were the estate, along with
James Lee Maness, Willie Maness and Edward Maness, the three sons of
plaintiff's deceased husband, who were the grantees under a warranty
deed executed by Acie Lee Maness during his life- time.  Plaintiff's
motion for summary judgment was overruled, whereupon the case went to
trial.  Following a hearing, the chancellor dismissed plaintiff's
petition.  On appeal the sole issue for our consideration is whether
or not the chancellor erred in dismissing plaintiff's petition.  We
are of the opinion that the trial court did err.  Accordingly we
reverse and remand.

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

ALMA LANE MORRIS, Executrix 
of the Estate of RAYMOND ALFRED 
MORRIS,                 
vs.
VOIL MORRIS

Court:TCA

Attorneys:

MITCHELL G. TOLLISON
HAWKS & TOLLISON
Humboldt, Tennessee
Attorney for Appellant

L. L. HARRELL, JR.
HARRELL, HARRELL & AGEE
Trenton, Tennessee
Attorney for Appellee
                          
Judge:HIGHERS

First Paragraph:

Alma Lane Morris ("Executrix"), substitute plaintiff and Executrix of
the estate of Raymond Alfred Morris ("Decedent"), appeals the trial
court's order entering a judgment in favor of Voil Morris
("Defendant").  We reverse the trial court's judgment because we hold
that the parties' pleadings conclusively established that funds in
Defendant's possession were held in trust for Decedent and that
Decedent was entitled to the return of approximately $50,000 in trust
funds.

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

LARRY W. SHORTER and JANET      
SHORTER, as parents of NICHOLAS 
G. SHORTER, deceased and        
individually,                                                  
vs.                                
JAMES STEWART McMANUS and       
KATHERYN LOUISE McMANUS

Court:TCA

Attorneys:

WILLIAM A. REEVES, Wise & Reeves, P.C., Knoxville for Appellants.

LINDA J. HAMILTON MOWLES, Lewis, King, Krieg, Waldrop & Catron, P.C.,
Knoxville, for Appellees.
                          
Judge:McMurray

First Paragraph:

This case arises out of a tragic motor scooter accident in which Nick
Shorter, the thirteen year old son of the plaintiffs, was killed.  The
plaintiffs sued the parents of Nick's friend Dusty McManus, who had
driven the scooter to Nick's house. Dusty allowed Nick to ride the
scooter.  Nick was involved in an accident which resulted in his
death.  Plaintiffs seek damages from Dusty's parents alleging that the
defendants are liable under the theories of negligent entrustment,
negligent supervision, negligent maintenance of the vehicle and
negligence per se. The defendants moved for summary judgment which was
granted by the trial court.  This appeal resulted.  We affirm the
judgment of the trial court.

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

BRIAN STEPHENSON        
vs.
TOWN OF WHITE PINE, TENNESSEE

Court:TCA

Attorneys:

J. MICHAEL KERR OF JEFFERSON CITY FOR APPELLANT

DAVID L. McCORD and TIMOTHY E. IRWIN OF KNOXVILLE FOR APPELLEE
                          
Judge:Goddard

First Paragraph:

Brian Stephenson, formerly a police officer of White Pine, was
dismissed from that position by the White Pine Chief of Police and its
Mayor.  Subsequently, a hearing was held before the Town Mayor and
Board of Alderman, and the action in dismissing Mr. Stephenson was
upheld.

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

TERRY PHELPS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEE:

Terry Phelps, Pro Se                John Knox Walkup
Unit 2A-127 Turney Center           Attorney General & Reporter
Route 1                             500 Charlotte Avenue
Only, TN                            Nashville, TN 37243-0497

                                    Elizabeth B. Marney
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    W. Michael McCown
                                    District Attorney General
                                    P.O. Box 904
                                    Fayetteville, TN 37334                          

Judge:Jones

First Paragraph:

The appellant, Terry Phelps (petitioner), appeals as of right from a
judgment of the trial court summarily dismissing his action to
"Modify, Correct, and/or Set Aside Illegally Impose[d] Sentence."  The
trial court dismissed this action because (1) it was barred by the
statute of limitations, and (2) the issue was waived as it was not
raised in a prior action for post-conviction relief.  In this court,
the petitioner presents three issues for review.  He contends (1) the
trial court had jurisdiction to set aside or correct his illegal
sentence, (2) the trial court erroneously treated his action as one
for post-conviction relief and used the statute of limitations as a
bar to granting relief, and (3) the trial court abused its discretion
by ordering consecutive sentencing.   After a thorough review of the
record, the briefs submitted by the parties, and the law governing the
issues 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/phelpst_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
MICHAEL LYNN WALTON

Court:TCCA

Attorneys:
FOR THE APPELLANT:              FOR THE APPELLEE:

LIONEL R. BARRETT, JR.          JOHN KNOX WALKUP 
Attorney at Law                 Attorney General & Reporter
Washington Square Two, 
Ste. 417
222 Second Avenue North         MICHAEL J. FAHEY, II
Nashville, TN  37201            Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                VICTOR S. JOHNSON, III
                                District Attorney General

                                JOHN ZIMMERMAN 
                                Assistant District Attorney General

                                KIMBERLY L. HATTAWAY-HAAS
                                Assistant District Attorney General 
                                Washington Square Two, Suite 500
                                222 Second Avenue North
                                Nashville, TN  37201                          

Judge: WOODALL

First Paragraph:

The Defendant, Michael Lynn Walton, appeals as of right pursuant to
Rule 3 of the Tennessee Rules of Appellate Procedure.  He was
convicted of two counts of official misconduct in one trial and two
counts of rape in another trial.  Both trials were jury trials in the
Criminal Court of Davidson County.  He was sentenced to one (1) year
on each of the official misconduct convictions and eight (8) years on
one rape conviction and nine (9) years on the other rape conviction. 
These sentences were ordered to run concurrently which left the
Defendant with an effective sentence of nine (9) years.  The Defendant
argues three issues in this appeal: (1) whether the evidence was
insufficient to support the convictions for rape; (2) whether the
trial court erred in denying the Defendant's motion for an instruction
as to statutory rape as a lesser included offense; and (3) whether the
trial court erred in denying probation as to the counts of official
misconduct.  We affirm   the judgment of the trial court.

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

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