TBALink Opinion-Flash

January 9, 1998 -- Volume #4 -- Number #006

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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12-New Opinons From TCCA

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TBALink Chief Editor


WILLIAM J. BUNCH
vs.
WALTON I. BUNCH and
STEVEN B. BUNCH

Court:TCA

Attorneys:

L. L. Harrell, Jr.; Harrell & Harrell of Trenton
For Appellee

G. Griffin Boyte of Humboldt
For Appellants
                          
Judge:CRAWFORD

First Paragraph:

This case involves a suit to partition certain real and personal
property owned by three brothers as joint tenants with the right of
survivorship.  Walton and Steven Bunch appeal the order of the trial
court granting the sale for partition.

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

PORTER FREEMAN
vs.
ROBERT RING, COUNTY     
EXECUTIVE, JERRY SHARBER,   
MAYOR, and JAMES JOHNSON,   
ADMINISTRATOR

Court:TCA

Attorneys:

PORTER FREEMAN
7131 Nolensville Road
Nolensville, Tennessee 37135
Pro Se/Plaintiff/Appellant

RICHARD A. BUERGER
306 Public Square
Franklin, Tennessee 37064
Attorney for Defendant/Appellee Robert Ring

DOUGLAS BERRY
Suntrust Center
424 Church Street, Suite 2900
Nashville, Tennessee 37219
Attorney for Defendants/Appellees Jerry Sharber and James Johnson
                          
Judge:BUSSART

First Paragraph:

The appellant sought to enjoin both city and county officials from the
sale of general obligation bonds.  The Chancery Court of Franklin
granted all defendants' motions to dismiss pursuant to Rule 12.02(6)
of the Tennessee Rules of Civil Procedure.  On appeal, we must
determine whether the trial court erred in not considering the
petition for injunction on the merits as against either the city or
the county defendants.

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

TENNESSEE DEPARTMENT OF 
HEALTH, DIVISION OF HEALTH  
RELATED BOARDS and      
THE BOARD OF MEDICAL        
EXAMINERS
vs.
W. DWIGHT FRISBEE, M.D.

Court:TCA

Attorneys: 

For the Plaintiffs/Appellees:           For the Defendant/Appellant:

John Knox Walkup                        Wayne L. Robbins, Jr.
Attorney General and Reporter           Gullett, Sanford, Robinson
                                        & Martin
                                        Nashville, Tennessee
Michelle K. Hohnke
Assistant Attorney General              Daniel D. Warlick
                                        Warlick & Todd
                                        Nashville, Tennessee
                         
Judge:KOCH

First Paragraph:

This appeal presents an issue of first impression concerning the
evidentiary standards applicable to disciplinary proceedings involving
licensed physicians.  The Tennessee Department of Health perfected an
interlocutory appeal to the Chancery Court for Davidson County after
an administrative law judge disqualified its expert witness for
failing to satisfy the locality rule generally applicable in medical
malpractice cases.  The trial court reversed the administrative law
judge's decision after concluding that a physician's conduct should be
measured by a statewide standard of minimum competency rather than a
particularized local standard of care.  While the administrative law
judge's decision was correct with regard to two of the charges, we
affirm the trial court's decision in part because several of the
charges in this proceeding only require proof that a physician has
failed to meet statewide, minimal competency standards.

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

BRIAN DAVID McCRAY
vs.
IRENE CAROL KLANSECK McCRAY

Court:TCA

Judge:TODD

First Paragraph:

The appellee has filed a respectful petition to rehear which has been
duly considered.  The mathematical error in quoting of the record and
other matters mentioned in the petition are insufficient to alter the
decision of this Court.

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

DEMETRA LYREE PARKER
vs.
WARREN COUNTY           
UTILITY DISTRICT

Court:TCA

Attorneys:

ROBERT S. PETERS
SWAFFORD PETERS & PRIEST
Winchester, Tennessee
Attorney for Appellant

DIANNA BAKER SHEW
STEPHEN H. PRICE
FARRIS, WARFIELD & KANADAY, PLC
Nashville, Tennessee
Attorneys for Appellee
                          
Judge:HIGHERS

First Paragraph:

Plaintiff Demetra Lyree Parker appeals the trial court's order
granting the motion for summary judgment filed by Defendant/Appellee
Warren County Utility District.  We reverse the trial court's judgment
based on our conclusion that a genuine issue of material fact exists
as to whether the Utility District responded promptly, adequately, and
effectively to Parker's allegations of sexual harassment against the
Utility District's general manager.

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

UNION PLANTERS NATIONAL 
BANK, as Executor and Trustee   
Under the Will of JAMES A. LeROY,   
Deceased
vs.
BETTYE CLAIRE REINHARDT 
DEDMAN, JOHN DEDMAN, BERNICE    
A. LeROY, JILL LeROY DIMICELI   
and SUE LeROY HENDERSON

Court:TCA

Attorneys:

Marion S. Boyd, Jr., WYATT, TARRANT & COMBS, Memphis, Tennessee
Attorney for Petitioner/Appellant.

Allan J. Wade, BAKER, DONELSON, BEARMAN & CALDWELL, Memphis, TN
Attorney for Respondents/Appellees.
                          
Judge:FARMER

First Paragraph:

Union Planters National Bank ("Bank"), as executor for the estate of
James A. LeRoy ("Testator"), filed an action in the Probate Court of
Shelby County for probate of Testator's will on January 5, 1989.  Bank
subsequently filed suit for declaratory judgment against the
beneficiaries and legatees of Testator's property ("appellees")
alleging that the residuary estate provided for in Testator's will to
pay all death taxes was insufficient to cover his tax liability and
seeking restitution from the appellees for their proportional share. 
Dedman appellees responded by contending that the post-death
appreciation of residuary estate assets and the receipt of income from
those assets had sufficiently increased the value of the residuary
estate to enable it to sufficiently cover all death taxes requested by
Bank.  The Special Master appointed by the trial judge confirmed the
sufficiency of the residuary estate on the date the taxes were due. 
The trial court entered judgment for appellees confirming the report
of the Special Master finding that there was no shortfall in the
residuary estate established by the testator in his will and thus
rendering appellees not liable to Bank for reimbursement of death
taxes in any amount.  We find the decision of the lower court as to
the issue of post-death income to the residuary trust to be in error
and remand.  Due to the complicated facts of this case and our
determination that one issue in this case requires a remand to the
lower court, we will only present the facts relevant to that issue.

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

Winslow Watson
vs.
Tennessee Department of Correction,     
Tennessee Board of Paroles, Correction  
Corporation of America, and Jody Benjamin

Court:TCA

Attorneys:

WINSLOW WATSON, PRO SE
Turney Center Prison
Only, Tennessee 37140

JOHN KNOX WALKUP
Attorney General and Reporter
JOHN R. MILES
Counsel for the State
Cordell Hull Bldg., Second Floor
425 5th Avenue North
Nashville, Tennessee 37243-0488
ATTORNEY FOR THE TENNESSEE DEPARTMENT OF
CORRECTION AND THE TENNESSEE BOARD OF PAROLES
                          
Judge:LEWIS

First Paragraph:

This is an appeal by petitioner/appellant, Winslow Watson, from a
decision of the chancery court dismissing his petition for a
declaratory judgment pursuant to the Declaratory Judgment Act,
Tennessee Code Annotated section 29-14-101 to -113.

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

STATE OF TENNESSEE
vs.
STANLEY H. BAKER

Court:TCCA

Attorneys:

For Appellant:                  For Appellee:

Elaine B. Beeler                Charles W. Burson
Assistant Public Defender       Attorney General and Reporter
P.O. Box 68             
Franklin, TN  37065-0068        Daryl J. Brand 
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN  37243-0493

                                Ronald L. Davis
                                Assistant District Attorney General
                                P.O. Box 937
                                Franklin, TN  37065-0937 
                          
Judge:WADE

First Paragraph:

The defendant, Stanley H. Baker, was convicted of driving under the
influence of an intoxicant, third offense, and driving on a revoked
license.  Tenn. Code Ann. SS 55-10-401 and 55-50-504.  The trial court
imposed concurrent sentences of eleven months and twenty-nine days for
the DUI, third offense, and six months for driving on a revoked
license; all but one hundred twenty days were suspended on each
conviction.  At the time of the offenses, the defendant was serving an
eleven-month and twenty-nine-day sentence on a 1994 DUI conviction. 
The trial court revoked probation and required a thirty-five day
consecutive sentence before reinstatement of the probationary term.

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

SHEDRICK CARRUTHERS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

Shedrick Carruthers, Pro Se     John Knox Walkup
N.E.C.C. ANNEX                  Attorney General & Reporter
P.O. Box 5000
Mountain City, 37683-5000       Clinton J. Morgan
                                Counsel for the State
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                William L. Gibbons
                                District Attorney General

                                Alanda Horne
                                Asst District Attorney General
                                Criminal Justice Complex, Suite 301
                                201 Poplar Avenue
                                Memphis, TN 38103
                                                  
Judge:SUMMERS

First Paragraph:

This case represents an appeal from the dismissal of the petitioner's
petition for post-conviction relief.  On May 10, 1990, the petitioner
pled guilty to aggravated rape and was sentenced to seventeen years
imprisonment.  No appeal was taken.  On January 28, 1997, the
petitioner filed a petition for post conviction relief alleging an
invalid indictment.  Finding that the statute of limitations had
expired, the trial court dismissed the petition without a hearing.

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

STATE OF TENNESSEE
vs.
RICKY HILL KRANTZ

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:

Karl Dean                           Charles W. Burson
District Public Defender            Attorney General of Tennessee
     and                                and               
Jeffrey A. DeVasher                 Christina S. Shevalier              
Michele S. Hall                     Asst Attorney General of TN        
Sheila Jones                        450 James Robertson Parkway
Assistant Public Defenders          Nashville, TN 37243-0493
Stahlman Bldg.              
211 Union Street                    Victor S. Johnson, III
Nashville, TN 37201-5066            District Attorney General 
(ON APPEAL)                             and 
                                    Katrin Novak Miller 
David M. Siegel                     Nicholas Bailey             
Jeff Powell                         Asst District Attorneys General            
Assistant Public Defenders          102 Metro Courthouse
Stahlman Bldg.                      Nashville, TN 37201
211 Union Street
Nashville, TN 37201-5066
(AT TRIAL)
                         
Judge:Tipton

First Paragraph:

The defendant, Ricky Hill Krantz, appeals as of right from his
conviction by a jury in the Davidson County Criminal Court for felony
murder and aggravated assault, a Class C Felony.  The defendant was
sentenced to life imprisonment for the felony murder conviction and as
a Range II, multiple offender to seven years in the custody of the
Department of Correction for the aggravated assault conviction.  The
trial court ordered the defendant's sentences to be served
consecutively.

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

STATE OF TENNESSEE
vs.
ROBERT ALLEN McKENZIE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

Justin Johnson                      John Knox Walkup
Attorney at Law                     Attorney General & Reporter
2131 Murfreesboro Road, Ste 205     500 Charlotte Avenue
Nashville, TN 37217                 Nashville, TN 37243-0497

                                    Ellen H. Pollack
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    Tom P. Thompson, Jr.
                                    District Atty General Pro Tempore
                                    P.O. Box 178
                                    Hartsville, TN 37074-0178
 
                                    John D. Wootten, Jr.
                                    Asst District Atty General
                                    P.O. Box 178
                                    Hartsville, TN 37074-0178
                           
Judge:Jones

First Paragraph:

The issue which this court must resolve is whether the statute of
limitations commences in an accessory after the fact prosecution when
(a) the crime is committed or (b) the principal offender is convicted.
 The trial court found the statute of limitations does not commence
until the principal offender is convicted.  The defendant contends the
statute of limitations commences when the crime of accessory after the
fact is committed.  After a thorough review of the record, the briefs
submitted by the parties, and the law pertaining to the issue
presented for review, it is the opinion of this court the statute of
limitations commenced to run in this prosecution for accessory after
the fact when the offense was committed.  Therefore, the judgment of
the trial court is reversed and the prosecution is dismissed since the
prosecution was barred by the statute of limitations.

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

MICHAEL MCNEIL
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant:          For the Appellee:

Frank Deslauriers           John Knox Walkup
P.O. Box 1156               Attorney General and Reporter
Covington, TN  38019    
                            Deborah A. Tullis
                            Assistant Attorney General                              
                            Criminal Justice Division
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493                
                        
                            James G. (Jerry) Woodall
                            District Attorney General

                            Al Earls
                            Asst. District Attorney General
                            Lowell Thomas State Office Bldg.
                            Jackson, TN  38301
                          
Judge:Hayes

First Paragraph:

The appellant, Michael McNeil, appeals the Madison County Circuit
Court's denial of his petition for post-conviction relief arising from
his 1989 convictions for three counts of grand larceny and three
counts of burglary. These convictions served as triggering offenses
for the jury's finding that the appellant was an habitual criminal. 
Accordingly, the sentences were enhanced to six life sentences.   On
March 30, 1993, the appellant filed a pro se petition for
post-conviction relief alleging ineffective assistance of counsel
based upon (1) a conflict of interest arising from joint
representation of the appellant and his co-defendant and (2) deficient
performance in failing to present an alibi defense.

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

PHILLIP W. POMEROY
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For Appellant:                      For Appellee:

Samuel F. Anderson, Attorney        Charles W. Burson 
2016 Eighth Avenue South            Attorney General and Reporter
Nashville, TN  37204            
                                    Elizabeth B. Marney
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493

                                    Tom Thurman 
                                    Asst District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue North 
                                    Nashville, TN  37201-1649
                          
Judge:WADE

First Paragraph:

The petitioner, Phillip W. Pomeroy, appeals the trial court's
dismissal of his petition for post-conviction relief.  The single
issue presented for review is whether the petition is barred by the
statute of limitations.

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

GARY L. SHIRLEY
vs.
STATE OF TENNESSEE

Court:TCCA
                        
Judge:JONES

First Paragraph:


On April 6, 1994, the petitioner entered guilty pleas to one count of
first degree murder and two counts of attempted first degree murder. 
He was sentenced to life for the murder conviction and twenty-five
years each for the attempt convictions, all of which were run
concurrently.   No appeal was taken.  On October 16, 1996, the
petitioner filed a petition for post-conviction relief alleging
ineffective assistance of counsel and involuntary guilty pleas. 
Finding that the statute of limitations expired, the trial court
dismissed the petition without a hearing.

URL:http://www.tba.org/tba_files/TCCA/shirley2_ord.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
GEROME J. SMITH

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

LIONEL R. BARRETT               JOHN KNOX WALKUP 
Washington Square Two           Attorney General & Reporter
Suite 417
222 Second Avenue, North        LISA A. NAYLOR
Nashville, TN   37201           Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                VICTOR S. JOHNSON
                                District Attorney General Pro Tem

                                KYMBERLY HAAS
                                Assistant District Attorney General

                                SHARON BROX 
                                Assistant District Attorney General
                                Washington Square Two
                                Suite 500 
                                222 Second Avenue, North
                                Nashville, TN  37201 
                          
Judge:WOODALL

First Paragraph:

The Defendant, Gerome J. Smith, appeals as of right from a conviction
of first degree murder following a jury trial in the Sumner County
Criminal Court.  Defendant was subsequently sentenced to life
imprisonment.  In this appeal, Defendant argues that the evidence is
insufficient as a matter of law to allow a rational trier of fact to
conclude that the Defendant committed premeditated first degree
murder.  We affirm the judgment of the trial court.

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

MICHAEL L. SOUTH
vs. 
STATE OF TENNESSEE

Court:TCCA
                          
Judge:HAYES

First Paragraph:

This case represents an appeal from the dismissal of the petitioner's
second petition for post-conviction relief.  The petitioner was
originally convicted of aggravated rape and aggravated robbery, and
received consecutive sentences of sixty and thirty years respectively.
 The petitioner also alleges that he was convicted of aggravated
burglary and theft.  On appeal, this Court affirmed the convictions of
aggravated rape and aggravated robbery; the petitioner apparently did
not appeal the other two convictions.  State v. Michael R. South, No.
02C01-9209-CR-00203 (Tenn. Crim. App., Sept. 15, 1993).  The Supreme
Court denied application for permission to appeal on March 7, 1994.

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

STATE OF TENNESSEE
vs.
TRACEY E. STIGALL

Court:TCCA

Attorneys:

FOR THE APPELLANT:

A. C. WHARTON, JR.
Shelby County Public Defender

TIMOTHY J. ALBERS (Trial)
Assistant Public Defender
201 Poplar, Ste. 201
Memphis, TN 38103  

EDWARD G. THOMPSON (Appeal)   
Assistant Public Defender
212 Adams Avenue
Memphis, TN  38103

FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

SARAH M. BRANCH
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

WILLIAM L. GIBBONS
District Attorney General

DAVID B. SHAPIRO
Assistant District Attorney General
201 Poplar Avenue, Ste. 301
Memphis, TN  38103-1947
                          
Judge:RILEY

First Paragraph:

Defendant, Tracey E. Stigall, was convicted by a Shelby County jury of
the offense of aggravated burglary.  The sole issue in this direct
appeal is whether the trial court erred in failing to charge lesser
offenses.  We AFFIRM the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
BUFFY M. TWADELL

Court:TCCA

Attorneys: 

For Appellant:                      For Appellee:

Steven F. Glaser                    Charles W. Burson 
Assistant Public Defender           Attorney General and Reporter
Eighteenth Judicial District 
117 East Main Street                Karen M. Yacuzzo
Gallatin, TN  37066                 Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493

                                    Thomas Dean 
                                    Asst District Attorney General
                                    113 West Main Street
                                    Gallatin, TN  37066

                         
Judge:WADE

First Paragraph:

The defendant, Buffy Mae Twadell, has been indicted on two counts of
aggravated perjury.  Tenn. Code Ann. S 39-16-703.  The district
attorney general denied the defendant's application for pretrial
diversion.  Thereafter, the trial court denied her petition for a writ
of certiorari.  In this extraordinary appeal made pursuant to Rule 10
of the Tennessee Rules of Appellate Procedure, the defendant insists
that the district attorney general abused his discretion by the denial
of pretrial diversion.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
TYRONE WATKINS

Court:TCCA

Attorneys: 

For Appellant:                      For Appellee:

David A. Doyle                      Charles W. Burson 
District Public Defender            Attorney General and Reporter
Eighteenth Judicial District            
117 East Main Street                Clinton J. Morgan 
Gallatin, TN  37066                 Counsel for the State 
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493

                                    Thomas Dean 
                                    Asst District Attorney General
                                    113 West Main Street
                                    Gallatin, TN  37066
                         
Judge:WADE

First Paragraph:

The defendant, Tyrone Watkins, was convicted on July 18, 1994, of two
Class A misdemeanors.  While allowing pretrial jail credit, the trial
court imposed consecutive sentences of eleven months and twenty-nine
days, the remainder of which was to be served on probation.  On
February 16, 1996, a warrant was issued which resulted in the
revocation of probation.

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

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