TBALink Opinion-Flash

January 14, 1998 -- Volume #4 -- Number #009

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
01-New Opinons From TSC-Workers Comp Panel
11-New Opinons From TCA
08-New Opinons From TCCA

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TBALink Chief Editor


BOBBY L. SMITH
VS.
LAUREN CONSTRUCTORS, INC.,

Court:TSC - Workers Comp Panel
                        
Judge:KILCREASE

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. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.

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

DEROYAL INDUSTRIES, INC.
VS.
RUTH E. JOHNSON,            
COMMISSIONER OF REVENUE,    
STATE OF TENNESSEE

Court:TCA

Attorneys:

John Knox Walkup and Sean P. Scally, Nashville, for the Appellant.

Dale C. Allen and H. Bruce Guyton, Knoxville, for the Appellee.
                          
Judge:INMAN

First Paragraph:

This is a sales tax deficiency case.  The taxpayer filed a
determinative action in the Chancery Court of Claiborne County against
the Commissioner of Revenue, who filed a motion to dismiss alleging
improper venue.  The motion was denied, and the case proceeded to
judgment.  The Commissioner appeals, insisting, inter alia, that the
Chancellor erred in holding that Claiborne County was a proper venue.

URL:http://www.tba.org/tba_files/TCA/deroyal_ca3.WP6
Opinion-Flash

JANICE R. GRAVES and        
JOHN GRAVES
VS.
GRADY'S INC.,               
LAMONTAGNE SELECTED     
WOOD FURNISHINGS, and       
RICHARDSON TURNER       
CONSTRUCTION CO.

Court:TCA

Attorneys:

Philip Durand, Lars E. Schuller, and Andrew L. Colcotronis, Knoxville,
for Appellants.

Linda J. Hamilton Mowles, Knoxville, for Appellees Richardson Turner
Construction Company.

Terrill L. Adkins, Knoxville, for Appellee LaMontagne Selected Wood
Finishings
                          
Judge:INMAN

First Paragraph:

This is the second appeal of this case.  The first opinion is reported
in 906 S.W.2d 463 (Tenn. App. 1995), to which we make reference for
the basis and history of this litigation.  The manufacturer of the
offending booth, LaMontagne, and the general contractor, Richardson
Turner, were dismissed by the trial court which held that the one-year
statute of limitations barred the action since it was filed April 25,
1994 and the accident occurred November 13, 1992.

URL:http://www.tba.org/tba_files/TCA/graves_ca3.WP6
Opinion-Flash

TERESA ANN HUGHES HAREN
VS.
JAMES SKYLER HAREN

Court:TCA

Attorneys:

ROGER E. JENNE, JENNE, SCOTT & BRYANT, Cleveland, for
Plaintiff-Appellant.

JAMES F. LOGAN, JR., LOGAN, THOMPSON, MILLER, BILBO, THOMPSON &
FISHER, P.C., Cleveland, for Defendant-Appellee.
                          
Judge:Franks

First Paragraph:

In this divorce action the appeals focus on the Trial Judge's custody
determination, the award of alimony and child support, and the
division of marital assets.

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

VICKY HARVELL, as next friend of    
JEREMY TRAMMELL WILLIAMS
VS.
MARY WILLIAMS

Court:TCA

Attorneys:

WILLIAM S. FLEMING
207 West Eighth Street
P. O Box 90
Columbia, TN 38402-0090
    Attorney for Plaintiff/Appellee

JANET C. DAVEY
711 North Garden Street
P. O. Box 631
Columbia, TN 38402-0631
    Attorney for Defendant/Appellant
                          
Judge:CANTRELL

First Paragraph:

The trial court declared that a piece of residential property held in
the name of the defendant was subject to the equitable remedy of a
resulting trust for the benefit of her grandson.  The defendant argues
on appeal that the plaintiff was not entitled to such a remedy because
he did not meet the required burden of proof, and because of the
doctrine of unclean hands.  We affirm the trial court.

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

DAVID HENSON and SARAH  
HENSON, Individually and as     
Parents and Next Friends of     
CASEY ERIN HENSON, a Minor
VS.
CARTER EXPRESS, INC.;       
ASTRO ENTERPRISES, INC.; and    
DONALD R. HURT
VS.
KASBAR NATIONAL             
INDUSTRIES, INC.; SATHER    
TRUCKING CORPORATION; and   
DANNY L. WARREN

Court:TCA

Attorneys:

Charles J. Gearhiser and Michael A. Anderson, Chattanooga, and W.
Charles Doerflinger, Lawrenceburg, for Plaintiffs.

John T. Rice, Chattanooga, for Defendants Carter Express, Inc., Astro
Enterprises, Inc., and Donald R. Hurt.

Steven W. Keyt, Chattanooga, for Defendant Sather Trucking
Corporation.
                          
Judge:INMAN

First Paragraph:

A jury awarded Casey Henson, age 15, $155,000.00 for damages for
personal injuries she sustained in a traffic crash.

URL:http://www.tba.org/tba_files/TCA/henson_ca3.WP6
Opinion-Flash

ROBERT L. OGBURN
VS.
TENNESSEE DEPARTMENT OF 
CORRECTION, ET AL.

Court:TCA

Attorneys:

ROBERT L. OGBURN
Cold-Creek Correctional Facility
B-3, Cell #38
Post Office Box 1000
Henning, Tennessee 38041-1000
    Pro Se/Petitioner/Appellant

JOHN KNOX WALKUP
Attorney General and Reporter

JOHN R. MILES
Assistant Attorney General
Cordell Hull Building, Second Floor
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
    Attorney for Respondents/Appellees
                          
Judge:CANTRELL

First Paragraph:

An inmate in the Tennessee prison system sought a declaratory judgment
that the Tennessee Department of Correction's Policy 502.02 was
unconstitutional and that it was also unenforceable because it was not
promulgated according to the Administrative Procedures Act.  The
Chancery Court of Davidson County dismissed the petitioner's claims. 
We affirm.

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

DOROTHY RIDLEY
VS.
BARRY RIDLEY,                   
and                         
RODNEY WHEELER and              
SANDRA WHEELER

Court:TCA

Attorneys:

For Appellant                           For Appellees Wheelers
                                
DEBRA L. HOUSE                          NO APPEARANCE
Southeast Tennessee Legal Services
Cleveland, Tennessee                
                          
Judge:Susano

First Paragraph:

In this case, we must decide if the order of the trial court, from
which this appeal is being pursued, is properly before us.  Our review
of the record persuades us that it is not.

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

VICKY HARVELL, as next friend of    
JEREMY TRAMMELL WILLIAMS
VS.
MARY WILLIAMS

Court:TCA

Attorneys:

WILLIAM S. FLEMING
207 West Eighth Street
P. O Box 90
Columbia, TN 38402-0090
    Attorney for Plaintiff/Appellee

JANET C. DAVEY
711 North Garden Street
P. O. Box 631
Columbia, TN 38402-0631
    Attorney for Defendant/Appellant
                          

Judge:CANTRELL

First Paragraph:

The trial court declared that a piece of residential property held in
the name of the defendant was subject to the equitable remedy of a
resulting trust for the benefit of her grandson.  The defendant argues
on appeal that the plaintiff was not entitled to such a remedy because
he did not meet the required burden of proof, and because of the
doctrine of unclean hands.  We affirm the trial court.

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

GEORGE STINSON,             
EDWARD D. LEWIS and         
GELSCO OF TENNESSEE, INC.
VS.
138 FIFTH AVENUE SOUTH, INC.,   
138 FIFTH AVENUE SOUTH      
ASSOCIATES, L.P., ALBERT DEL    
FAVERO, JR., and METROPOLITAN   
DEVELOPMENT AND HOUSING 
AUTHORITY

Court:TCA
                  
Judge:CANTRELL

First Paragraph:

I concur in the conclusion that paragraph 17 of the lease was not
triggered by the sale from the lessors to MDHA.  I am also of the
opinion that the critical sentence beginning with "All damages awarded
for such taking . . ." refers to a partial taking, because the damages
are described later in the sentence as "compensation for diminution in
value to the leasehold or to the fee of the property herein leased." 
A taking of the whole would not diminish the value of the leasehold or
the fee; it would extinguish the leasehold and the fee and replace
them with a monetary award.

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

STATE OF TENNESSEE      
DEPARTMENT OF HUMAN     
SERVICES,               
JOSHUA A. WILLIAMSON
VS.
CHRISTINA SANDERS

Court:TCA

Attorneys:

Jean Brown Dyer, Lenoir City, for Appellant.

John R. Rosson, Jr., Knoxville, for Appellee.
                          
Judge:INMAN

First Paragraph:

An Order of Legitimation of the child of Joshua Allen Williamson and
Christina Louise Sanders, born September 13, 1995 in West Germany, was
entered on May 21, 1996.

URL:http://www.tba.org/tba_files/TCA/willmson_ca3.WP6
Opinion-Flash

MIKE ALLRED
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

KELLY WILLIAMS              JOHN KNOX WALKUP
P.O. Box 608                Attorney General and Reporter
Livingston, TN 38570
                            DARYL J. BRAND
                            Assistant Attorney General
                            425 5th Avenue North
                            Nashville, TN 37243

                            BILL GIBSON
                            District Attorney General

                            OWEN G. BURNETT
                            Assistant District Attorney General
                            145 South Jefferson Avenue
                            Cookeville, TN 38501
                         
Judge:WELLES

First Paragraph:

The Petitioner, Terry Michael Allred, appeals pursuant to Rule 3 of
the Tennessee Rules of Appellate Procedure the trial court's denial of
his petition for post-conviction relief.  He argues that (1) trial
counsel rendered ineffective assistance, and that (2) he was
prejudiced because the State failed to provide an audiotape regarding
the offense for which he was charged until three days before his
trial.  We affirm the judgment of the trial court.

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

FREDERICK A. AVERY
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:


MARK J. FISHBURN            JOHN KNOX WALKUP
100 Thompson Lane           Attorney General & Reporter
Nashville, TN   37211
                            CLINTON J. MORGAN
                            Counsel for the State
                            425 Fifth Ave. N.           
                            2nd Floor, Cordell Hull Bldg.  
                            Nashville, TN  37243-0493
                
                            VICTOR S. JOHNSON, III
                            District Attorney General
                            
                            ROGER MOORE
                            Asst. District Attorney General
                            500 Washington Sq.
                            222 2nd Ave. N.
                            Nashville, TN   37201   
                          

Judge:PEAY

First Paragraph:

The petitioner filed for post-conviction relief on April 20, 1994; an
amended petition was filed on November 15, 1995.  In response to
charges of felony murder, aggravated robbery, robbery, attempt to
commit robbery, aggravated burglary, theft of property and aggravated
assault, the petitioner pled guilty on August 13, 1993, to
second-degree murder and to robbery.  As part of the plea-bargain, the
remaining charges were dismissed and he was sentenced to twenty-five
years as a Range I standard offender on the murder charge and to a
consecutive term of ten years as a Range II multiple offender on the
robbery charge.  The petitioner contends that his guilty pleas were
the result of ineffective assistance of counsel and therefore not
voluntarily, knowingly and intelligently made.  After an evidentiary
hearing, the court below denied relief.  We affirm.

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


STATE OF TENNESSEE
VS.
ROBERT CHADWELL BROTHERS

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

JOHN B. MELTON, III             JOHN KNOX WALKUP 
120 East Main Street            Attorney General & Reporter
Nations Bank Building 
Third Floor                     EUGENE J. HONEA
Murfreesboro, TN  37133-1336    Assistant Attorney General
                                2nd Floor, Cordell Hull Bldg
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                WILLIAM C. WHITESELL 
                                District Attorney General

                                PAUL A. HOLCOMBE, III
                                Asst District Attorney General
                                Rutherford County Judicial Bldg.
                                Third Floor
                                Murfreesboro, TN  37130                          

Judge:WOODALL

First Paragraph:

The Defendant, Robert Chadwell Brothers, was convicted of assault
following a jury trial in the Rutherford County Circuit Court.  He was
sentenced to serve eleven (11) months and twenty-nine (29) days,
suspended after service of ninety (90) days in the workhouse.  The
court also ordered Defendant to pay restitution to the victim in the
amount of $2,124.10.  In his appeal as of right, Defendant argues two
issues: (1) the trial court erred by failing to grant Defendant a new
trial based upon the State's failure to comply  with Defendant's
discovery request and (2) the trial court erred by not reducing the
amount of restitution ordered at the sentencing hearing.  We affirm
the judgment of the trial court.

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

DANIEL THOMAS HILL
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

Daniel Thomas Hill, Pro Se          John Knox Walkup
#105808 Atty General & Reporter
MCRCF
Box 200                             Clinton J. Morgan
Wartburg, TN 37887                  Counsel for the State
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493
    
                                    Victor S. Johnson, III
                                    District Attorney General

                                    Roger Moore
                                    Asst District Attorney General
                                    Washington Square, Suite 500
                                    222-2nd Avenue North
                                    Nashville, TN 37201-1649
                          

Judge:SUMMERS

First Paragraph:

The appellant, Daniel Thomas Hill, pled guilty to aggravated rape and
armed robbery on September 30, 1985.  On August 27, 1996 he filed a
pro se petition for post-conviction relief, alleging six grounds for
relief.  On October 30, 1996 the trial court entered an order
dismissing the petition, finding that grounds one through five in the
petition were time barred and that issue six, regarding a defective
indictment, was without merit.

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

STATE OF TENNESSEE
VS.
GARY LOUIS MIGGIO

Court:TCCA

Attorneys:

For Appellant:                      For Appellee:

Peter D. Heil, Attorney             John Knox Walkup                
P.O. Box 40651                      Attorney General and Reporter
Nashville, TN  37204
(on appeal)                         Daryl J. Brand      
                                    Assistant Attorney General
David E. Brandon, Attorney          Criminal Justice Division
211 Third Avenue North              450 James Robertson Parkway
Nashville, TN  37201                Nashville, TN  37243-0493
(at trial and on appeal)
                                    Jim Milam 
                                    Asst District Attorney General
                                    Washington Sq. Bldg, Ste 500
                                    222 Second Avenue North 
                                    Nashville, TN  37201-1649 
                          
Judge:WADE

First Paragraph:

The defendant, Gary Louis Miggio, entered a plea of guilt to driving
under the influence of an intoxicant, first offense.  The trial court
imposed a sentence of eleven months and twenty-nine days and suspended
all but four days, which were to be served in jail.  There was a
$250.00 fine.  The defendant reserved the right to appeal a certified
question of law.  Tenn. R. Crim. P. 37(b)(2).

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

CURTIS ANTHONY MILLER
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

Jennie L. Brown                 John Knox Walkup
229 Summit Ridge Drive          Attorney General & Reporter
Nashville, TN 37215
                                Clinton J. Morgan
                                Counsel for the State
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493
    
                                Victor S. Johnson, III
                                District Attorney General

                                Roger Moore
                                Asst District Atty General
                                Washington Square, Suite 500
                                222-2nd Avenue North
                                Nashville, TN 37201-1649
                          
Judge:SUMMERS

First Paragraph:

The appellant, Curtis Anthony Miller, appeals the denial of post
conviction relief.  He was convicted of second degree murder in
February 1993 and was sentenced to twenty years in prison.  This Court
affirmed his conviction in June 1994.  In this post-conviction
petition, the appellant's sole issue is that he was denied effective
assistance of counsel.   An evidentiary hearing was held on August 23,
1996, and the appellant was denied post-conviction relief.  We affirm.

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

STATE OF TENNESSEE
VS.
ANTHONY TURNER

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

CAMPBELL SMOOT                  JOHN KNOX WALKUP
Public Defender                 Attorney General and Reporter

RACHEL E. WILLIS                GEORGIA BLYTHE FELNER
Assistant Public Defender       Assistant Attorney General
605 East Carroll Street         425 5th Avenue North
P.O. Box 260                    Nashville, TN 37243
Tullahoma, TN 37388
                                C. MICHAEL LAYNE    
                                District Attorney General

                                STEPHEN WEITZMAN
                                Asst District Attorney General
                                Manchester, TN 37355
                         
Judge:WELLES

First Paragraph:

The Defendant appeals as of right from the judgment of the trial court
which found him to be in violation of the terms of his community
corrections sentence and ordered that the balance of his six-year
sentence be served in the Department of Correction.  The Defendant
argues that the trial judge abused his discretion in ordering that the
remainder of the Defendant's sentence be served in the Department of
Correction.  We disagree and affirm the judgment of the trial court.

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

STATE OF TENNESSEE
VS.
VENSON EARL WOODARD

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

WILLIAM C. ROBERTS, JR.         JOHN KNOX WALKUP
Suite 1502, Parkway Towers      Attorney General and Reporter
Nashville, TN 37219
                                PETER M. COUGHLAN
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243

                                MIKE MCCOWN
                                District Attorney General

                                ROBERT G. CRIGLER
                                Assistant District Attorney
                                One Public Square, Ste. 300
                                Shelbyville, TN 37206-4211

                          
Judge:SMITH

First Paragraph:

A Bedford County Circuit Court jury found Appellant Venson Woodard
guilty of two counts of aggravated assault. As a Range II multiple
offender, he received a sentence of nine years and eight months in the
Tennessee Department of Correction. The trial court ordered the
sentence to be served consecutive to a sentence for which Appellant
was on parole at the time of the offense. In this appeal, Appellant
presents the following issue for review: whether the trial court
violated its duty to act as a thirteenth juror by refusing to grant
Appellant's motion for a new trial.  Specifically Appellant maintains
the weight of the evidence shows he was acting in self-defense.

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

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