TBALink Opinion-Flash

Month 01, 1998 -- Volume #4 -- Number #1

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

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George Dean
TBALink Chief Editor


STATE OF TENNESSEE
vs.                             
RAY ANTHONY BRIDGES

Court:TSC

Attorneys:

For Plaintiff-Appellee:             For Defendant-Appellant:
John Knox Walkup                    Larry E. Fitzgerald
Attorney General & Reporter         Memphis, Tennessee
Nashville, Tennessee

Michael E. Moore
Solicitor General
Nashville, Tennessee

Gordon W. Smith
Associate Solicitor General
Nashville, Tennessee

G. Robert "Gus" Radford
District Attorney General
Huntingdon, Tennessee
                          

First Paragraph:

The primary issue in this appeal is whether the warrantless seizure of
cocaine from the defendant's person during a detention and frisk was
constitutionally permissible under the "plain feel" or "plain touch"
doctrine expounded in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct.
2130, 124 L.Ed.2d 334 (1993).  In this case, the trial court denied
the defendant's motion to suppress, and thereafter, the defendant pled
guilty to possession of cocaine with intent to sell, but reserved the
right to appeal the constitutionality of the warrantless seizure
pursuant to Tenn. R. Crim. P. 37(b)(2).  The Court of Criminal Appeals
affirmed the trial court's denial of the motion to suppress. 
Thereafter, we granted permission to appeal.

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

TRACY HAWKS and DALE HAWKS
vs.
CITY OF WESTMORELAND

Court:TSC

Attorneys:

For Plaintiffs-Appellees:           For Defendant-Appellant:
Bruce N. Oldham                     J. Russell Farrar
Oldham & Dunning, LLC               Deborah R. Sowell
Gallatin, Tennessee                 Farrar & Bates
                                    Nashville, Tennessee                           
                                    
Judge:DROWOTA

First Paragraph:

The primary issue in this appeal is whether the City of Westmoreland
had "constructive notice" of the dangerous and defective condition of
the fire hydrants which resulted in the total fire loss of the home of
the plaintiffs, Tracey and Dale Hawks.  Finding that the inoperable
fire hydrants would have been discovered had the City performed an
adequate inspection, the lower courts charged the City with
constructive notice of the dangerous and defective condition and held
it liable to the  plaintiffs for the damages that could have been
avoided had the fire hydrants been operable.  After carefully
considering the record, as well as the briefs and argument of counsel,
we agree that the City should be charged with constructive notice and,
therefore, affirm the judgment of the Court of Appeals upholding the
trial court's judgment in favor of the plaintiffs.

URL:http://www.tba.org/tba_files/TSC/hawks4_opn.WP6
Opinion-Flash

TIMOTHY PAUL MULLINAX
vs.                             
WABASH ALLOYS, CONNELL         
LIMITED PARTNERSHIP and              
CIGNA INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

For Appellant:                              For Appellee:

Kitty Boyte                                 Charles L. Hicks
Gracey, Ruth, Howard, Tate & Sowell         Camden, Tennessee
Nashville, Tennessee
                         

Judge:Loser

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. section 50-6-225(e)(3) for hearing and reporting
of findings of fact and conclusions of law.  The employer and its
insurer contend the evidence preponderates against the trial court's
finding that the employee has a ten percent permanent medical
impairment and in favor of a finding that the employee has a five
percent medical impairment rating.  As discussed below, the panel has
concluded the judgment should be affirmed.

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

BOATMEN'S BANK OF TENNESSEE
vs.
STEVEN K. DUNLAP and    
ABSOLUTELY HILARIOUS    
PRODUCTS, INC.

Court:TCA

Attorneys: 

Harold F. Smith, Jr., Memphis, Tennessee
Attorney for Defendants/Appellants.

Richard M. Carter,
Michael A. Brady,
MARTIN, TATE, MORROW & MARSTON, Memphis, Tennessee
Attorneys for Plaintiff/Appellee.
                         
Judge:FARMER

First Paragraph:

This appeal has been taken from the trial court's order granting
summary judgment in favor of Boatmen's Bank of Tennessee against
Steven K. Dunlap and the trial court's order denying the motion to set
aside the default judgment entered against Absolutely Hilarious
Products, Inc.  For the reasons stated herein, we affirm.

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

GARY L. NORMAN and          
KATHRYN NORMAN
vs.
VICKI LYNN PRATHER and          
RAY PRATHER

Court:TCA

Attorneys:

William A. Cohn of Cordova
For Appellants

Michael L. Robb, Donna T. Snow of
Thomason, Hendrix, Harvey, Johnson & 
Mitchell of Memphis, For Appellees
                          
Judge:CRAWFORD

First Paragraph:

This case involves a vehicle/pedestrian collision.  Plaintiffs, Gary
L. Norman and Kathryn Norman, filed suit against defendants Vicki Lynn
Prather and Ray Prather for personal injuries sustained by Gary L.
Norman when he was struck by a vehicle driven by Vicki Lynn Prather
and owned by Ray Prather.  The complaint alleges that on June 8, 1993,
plaintiff was a pedestrian crossing Central Avenue, north bound, when
he was struck by the Prather vehicle proceeding westbound on Central
Avenue.  The complaint avers that plaintiff was in the turning lane of
Central Avenue when he was struck and that Vicki Lynn Prather was
operating her vehicle without proper care, failed to operate the
vehicle in a reasonable and prudent manner and was operating the
vehicle with reckless disregard for the rights and safety of others. 
The complaint also alleges that Vicki Prather violated the statutes of
the State of Tennessee and Ordinances of the City of Memphis, all of
which directly and proximately caused a collision and the resulting
losses, injuries and damages claimed by plaintiff.  Plaintiff further
avers that Ray Prather was the owner of the automobile driven by Vicki
Prather and that she was driving with his permission and in his
service.

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

JANET LYNN POSNER
vs.
ALAN MARTIN POSNER

Court:TCA

Attorneys:

William P. Zdancewica; Dowden & Zdancewica of Memphiis
For Appellee

Robin H. Rasmussen; Jackson, Shields, Yeiser &
Cantrell of Cordova
For Appellant
                          
Judge:CRAWFORD

First Paragraph:

This appeal concerns the modification of a marital dissolution
agreement incorporated in a final decree of divorce.  Plaintiff, Janet
Lynn Posner (Wife), and defendant, Alan Martin Posner (Husband), were
divorced by final decree entered July 13, 1995.  The decree approved
and incorporated by reference a marital dissolution agreement (MDA)
which, among other things, provided for the joint custody of the minor
children with Wife designated as the primary care giver.  The
agreement specifically provided that Husband would pay child support
as established under the child support guidelines pursuant to T.C.A. S
36-5-101 (e).  The instant case was spawned by the following provision
of the marital dissolution agreement:

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

GRETCHEN BROOKE KAEMMER     
SMITH
vs.
KENNETH LEE SMITH

Court:TCA
                       
Judge:CRAWFORD

First Paragraph:

This appeal concerns a post-divorce proceeding involving child support
and alimony arrearages.  The parties, Gretchen Brooke Kaemmer Smith
(Wife), and Kenneth Lee Smith (Husband), were divorced by decree
entered October 5, 1987.  The parties had six children, and the decree
incorporated a child custody, support and property settlement
agreement.  As pertinent to the issues before us on appeal, Wife was
awarded custody of the children, child support, alimony in solido,
payable in monthly installments, and alimony in futuro, payable in
monthly installments.  In part of 1995 and 1996, Husband had
employment problems and failed to pay all of the monthly installment
obligations provided for in the decree.

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

STATE OF TENNESSEE ex rel.
DANA INMAN RION     
    vs.
PHILIP DURWARD RION

Court:TCA

Attorneys: 

John G. Doak of Nashville
For Appellant

John Knox Walkup, Attorney General and Reporter
Kimberly M. Frayn, Assistant Attorney General
For Appellee
                         
Judge:CRAWFORD

First Paragraph:

This is a child support case.  Philip Rion appeals the order of the
trial court which set child support by imputing to ex-wife the average
annual income for Tennessee families rather than relying on ex-wife's
past earnings and actual earning potential.

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

JIMMIE WAYNE WIGGINTON
vs.
NELLIE FAYE WIGGINTON

Court:TCA
                        
Judge:CRAWFORD

First Paragraph:

This is a divorce case.  Jimmie Wayne Wigginton appeals the order of
the trial court awarding wife alimony in the amount of $1,000 per
month for approximately ten years and $10,000 in attorney fees.

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

STATE OF TENNESSEE
vs.
CLYDE A. EDGESTON

Court:TCCA

Attorneys:

FOR THE APPELLANT:               FOR THE APPELLEE:


GEORGE GOOGE                    JOHN KNOX WALKUP
Public Defender                 Attorney General & Reporter

DANIEL J. TAYLOR                JANICE L. TURNER
Asst. Public Defender           Attorney for the State
327 West Baltimore St.          450 James Robertson Pkwy.   
Jackson, TN 38301               Nashville, TN  37243-0493
                
                                JERRY WOODALL
                                District Attorney General

                                NICK NICOLA
                                Asst. District Attorney General
                                P. O. Box 2825
                                Jackson, TN 38301                          
                                
Judge:PEAY

First Paragraph:

The defendant was convicted on April 12, 1993, on six counts of
reckless endangerment, vandalism over one thousand dollars ($1000),
evading arrest, reckless driving, leaving the scene, driving while his
license was in a revoked status, and violation of the motor vehicle
registration law.  For these convictions he received an effective
sentence of eight years and was placed on intensive probation.  On
August 1, 1994, the defendant was transferred to regular probation.

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

STATE OF TENNESSEE
vs.
JAMES E. HATHAWAY

Court:TCCA

Attorneys: 

For the Appellant:              For the Appellee:

Brad S. Tisdale                 John Knox Walkup
642 Washington, Suite 1         Attorney General and Reporter
Memphis, TN  38105  
                                Kenneth W. Rucker
Charles Waldman                 Assistant Attorney General      
147 Jefferson Ave.              Criminal Justice Division                                
Suite 1101                      450 James Robertson Parkway
Memphis, TN  38103              Nashville, TN 37243-0493                
                        
                                William Gibbons
                                District Attorney General

                                Terrell L. Harris and 
                                David C. Henry
                                Asst. District Attorneys General
                                Criminal Justice Complex, Suite 301
                                201 Poplar Street
                                Memphis, TN  38103
                         
Judge:Hayes

First Paragraph:

The appellant, James E. Hathaway, appeals his jury convictions for the
crimes of especially aggravated robbery and felony murder.  At the
conclusion of the penalty phase of the trial, the jury imposed a
sentence of life imprisonment without the possibility of parole for
the felony murder conviction.  The Criminal Court of Shelby County
sentenced the appellant to twenty-five years for the especially
aggravated robbery conviction, ordering that this twenty-five year
sentence run consecutively to the appellant's life sentence.

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

KEITH D. HENDERSON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

James M. Gulley             John Knox Walkup
Attorney at Law             Attorney General & Reporter
80 Monroe Avenue            500 Charlotte Avenue
Memphis, TN 38103           Nashville, TN 37243-0497

                            Marvin E. Clements, Jr.
                            Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            William L. Gibbons
                            District Attorney General
                            201 Poplar Avenue, Suite 3-01
                            Memphis, TN 38103

                            Dawn Doran
                            Assistant District Attorney General
                            201 Poplar Avenue, Suite 3-01
                            Memphis, TN 38103
                         

Judge:Jones

First Paragraph:

The appellant, Keith D. Henderson (petitioner), appeals as of right
from a judgment of the trial court dismissing his action for
post-conviction relief following an evidentiary hearing.  In this
court, the petitioner contends his guilty plea to second degree murder
was not voluntarily, knowingly, and intelligently entered.  He argues
the plea is infirm because (1) he was not aware of his constitutional
rights or the direct consequences of a guilty plea, (2) neither the
trial court nor counsel advised him of the nature of the offense
before he entered the plea, and (3) he was not advised of the minimum
and maximum penalty for the offense of second degree murder.  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/hndrsnkd_opn.WP6
Opinion-Flash

JOHN EDGAR JUSTICE, JR.
vs.
JIMMY HARRISON, Warden, 
and STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:

John Edgar Justice, Jr., Pro Se     Charles W. Burson
C.C.C.F.                            Attorney General and Reporter
P. O. Box 1000  
Henning, TN  38041                  Deborah A. Tullis
                                    Assistant Attorney General                              
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                         
Judge:Hayes

First Paragraph:

The appellant, John Edgar Justice, Jr., appeals as of right the
summary dismissal of his petition for writ of habeas corpus.  The
appellant is currently serving an effective ten to twenty-six year
sentence at the Cold Creek Correctional facility in Lauderdale County.
 On September 19, 1996, the appellant filed three petitions for writ
of habeas corpus, alleging that his sentences had expired.  The State
filed a motion to dismiss alleging that the appellant's sentences do
not expire until the year 2008.  The trial court granted the State's
motion and dismissed the appellant's petition finding "[the appellant]
has not made a colorable claim for habeas corpus relief."  On appeal,
the appellant contends the trial court erred in finding his sentences
had not expired.

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

STATE OF TENNESSEE
vs.
RICHARD CLINT PATTERSON,    
LINDA CAROL GIBBONS, and    
ROBERT LEE WALKER

Court:TCCA

Attorneys: 

FOR APPELLANT PATTERSON:

GUY T. WILKINSON
District Public Defender

W. JEFFERY FAGAN
Assistant District Public Defender
117 North Forrest Avenue
Camden, TN 38320

FOR APPELLANT GIBBONS:

DAVID H. HORNIK
222 Second Avenue North
Suite 360M
Nashville, TN 37201-1649

FOR APPELLANT WALKER:

N. REESE BAGWELL
116 South Second Street
Clarksville, TN 37040

FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

KENNETH W. RUCKER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

G. ROBERT RADFORD
District Attorney General

TODD A. ROSE
VICKI S. SNYDER
Asst. District Attorneys General
P.O. Box 686
Huntingdon, TN 37344-0686
                        
Judge:RILEY

First Paragraph:

The defendants, Richard Clint Patterson, Linda Carol Gibbons and
Robert Lee Walker, were convicted by a Henry County jury of one (1)
count of manufacturing rock cocaine, one (1) count of simple
possession of rock cocaine, one (1) count of simple possession of
powder cocaine and one (1) count of possession of unlawful drug
paraphernalia.  Patterson was also convicted of one (1) count of
simple possession of marijuana.

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

 REGINALD THOMPSON
 vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:

HOWARD BRETT MANIS
200 Jefferson Avenue
Suite 1313
Memphis, Tennessee 38103

FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

JANIS L. TURNER
Assistant Attorney General
Cordell Hull Building - 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

WILLIAM L. GIBBONS
District Attorney General

JAMES MORTON LAMMEY, JR.
Assistant District Attorney General
201 Poplar Avenue
Suite 301
Memphis, Tennessee 38103
                          
Judge:RILEY

First Paragraph:

Appellant, Reginald Thompson, seeks review of the trial court's denial
of his petition for post-conviction relief.  Appellant pled guilty on
September 8, 1994, to four (4) counts of aggravated robbery and one
(1) count of attempted aggravated robbery in a negotiated plea
agreement.  He received ten (10) years on each of the four (4) counts
of robbery, concurrent, and five (5) years on the count of attempted
aggravated robbery, consecutive, for a total effective sentence of
fifteen (15) years.  The post-conviction petition, filed October 12,
1995, alleged ineffective assistance of counsel and that counsel had
misrepresented the total length of the sentence to be ten (10) years. 
Appellant also alleged that the plea was not freely, voluntarily, and
intelligently entered, indicating that counsel coerced him to plead
guilty to crimes he did not commit.  The post-conviction court
dismissed the petition after an evidentiary hearing.  We affirm the
judgment of the trial court.

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

MARK LEE TYRE
vs.
BILLY COMPTON, WARDEN

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

Mark Lee Tyre, Pro Se           John Knox Walkup
Lake County Reception 
Correctional Facility           Attorney General & Reporter
Route 1, Box 330                500 Charlotte Avenue
Tiptonville, TN 38079           Nashville, TN 37243-0497

                                Elizabeth T. Ryan
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                C. Phillip Bivens
                                District Attorney General
                                P. O. Drawer E
                                Dyersburg, TN 38024                          

Judge:Jones

First Paragraph:

The appellant, Mark Lee Tyre (petitioner), appeals as of right from a
judgment of he trial court summarily dismissing his action for habeas
corpus relief.  The trial court held the petitioner is not entitled to
habeas corpus relief because his sentences have not expired, and the
judgments entered in his case are not void upon the face of the
judgments.  The petitioner contends he is entitled to maintain an
action for habeas corpus to contest the validity of the indictments
based upon this court's decision in State v. Roger Dale Hill, Sr.,
Wayne County No. 01-C-01-9508-CC-00267 (Tenn. Crim. App., Nashville,
June 20, 1996).  He argues the two counts of the indictment in
question failed to set forth the requisite mens rea.

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

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