TBALink Opinion-Flash

January 15, 1998 -- Volume #4 -- Number #010

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
04-New Opinons From TSC-Workers Comp Panel
03-New Opinons From TCA
09-New Opinons From TCCA

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George Dean
TBALink Chief Editor


PAM FENNER
vs.
D.B.C. ENTERPRISES and TRAVELERS         
INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

For the Appellant:              For the Appellee:
                                D. Scott Turner
Terry J. Leonard                Thomas F. Preston
HICKS AND LEONARD.              SPICER , FLYNN & RUDSTROM
900 North Court Square          80 Monroe Avenue
P.O. Box 957                    Brinkley Plaza Suite 500
Camden, Tennessee 38320         Memphis, Tennessee 38103 2466
                          
Judge:CHILDERS

First Paragraph:

The trial court granted summary judgment in favor of the defendants
for lack of jurisdiction and dismissed the cause with prejudice at the
plaintiff's cost.

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

EDDIE FREEMAN
vs.
KIMBERLY-CLARK          
CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:

For Plaintiff:                      For Defendant:

Dixie White Ishee                   Carol M. Hayden
Harkavy, Shainberg, Kosten          McDonald Kuhn
& Kaplan                            80 Monroe Ave., Suite 550
530 Oak Court Dr., Suite 350        Memphis, TN 38173-0160
Memphis, TN 38117           
                          
Judge:TOMLIN

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 of
findings of fact and conclusions of law.  The employer,
Kimberly-Clark, appeals and contends that the evidence preponderates
against the trial court's findings (1) in ordering the extension of
temporary total disability benefits through July 1996, and (2) in
ordering the defendant to pay the medical expenses and deposition
costs resulting from Plaintiff's treatment by and the deposition of
Dr. Berry.  The panel concludes that the judgment should be modified
in part and reversed in part.

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

DORIS HENSLEY
vs.
LIBERTY NATIONAL LIFE          
INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

FOR APPELLANT:                      FOR APPELLEE:  
Daniel C. Masten                    David H. Crichton
W. H. (Steve) Stephenson, II        111 West Market Street
346 - 21st Avenue North             Post Office Box 651
Nashville, TN 37203                 Bolivar, TN 38008
                          
Judge:CLARK

First Paragraph:

This worker's compensation appeal has been referred to the special
worker's compensation appeals panel of the Supreme Court in accordance
with Tenn. Code Ann. S50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  Defendant
employer presents only one issue on appeal: whether the Chancellor
erred in attributing the impairment from plaintiff's injury to the
body as a whole rather than to a scheduled member (the foot).  For the
reasons set forth below, we affirm the judgment of the trial court.

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

MICHAEL A. SMITH
vs.
CONTINENTAL CASUALTY            
COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

For Plaintiff:                      For Defendant:

Mr. Thomas K. McAlexander           Mr. Kenneth R. Rudstrom and 
Hill Boren                          Mr. Thomas F. Preston
1269 N. Highland Ave.               Spicer, Flynn and Rudstrom
Jackson, TN 38303                   80 Monroe Avenue
                                    Memphis, TN 38103
                          
Judge:TOMLIN

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with T.C.A. S 50-6 225(e)(3) for hearing and reporting of findings of
fact and conclusions of law.  Following a bench trial, the chancellor
below found that there was no proof that plaintiff injured his back
during the course and scope of his employment, and further found that
plaintiff gave his employer no notice of injury.  On appeal plaintiff
has raised one issue for our consideration: whether the trial court
erred in preventing plaintiff from offering proof as to a specific
injury and notice of injury by sustaining an objection to certain
testimony of plaintiff.  In addition, defendant presents one issue:
whether the evidence preponderates against the chancellor's finding
that plaintiff did not sustain a work-related injury.  We find no
error and affirm.

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

IN RE: THE ESTATE OF PAUL   
F. O'NEAL   
vs.
HAYWOOD CLEMENT 

Court:TCA

Attorneys:

WILLIAM T. AILOR OF KNOXVILLE FOR APPELLANT

LEE E. LEDBETTER OF LENOIR CITY FOR ESTATE OF PAUL F. O'NEAL
                          
Judge:Goddard

First Paragraph:

The origin of this appeal was a claim filed by the Appellant, Haywood
Clement, in the Probate Division of the General Sessions Court for
Loudon County against the Estate of Paul F. O'Neal in the amount of
$2500, to which he contends he is entitled as a result of a
"constructive trust established by the deceased."

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

BILLIE J. RUSSELL, and          
BILLIE J. RUSSELL as Administratrix 
on behalf of Deceased, Robert L. Russell
vs.
Y. N. PAKKALA, M.D. and     
BOLIVAR COMMUNITY HOSPITAL

Court:TCA

Attorneys:

For the Plaintiff/Appellant:        For the Defendants/Appellees:

Charles E. Hodum                    Marty R. Phillips 
Mitzi C. Johnson                    Jackson, Tennessee 
Collierville, Tennessee                           
                          
Judge:LILLARD

First Paragraph:

his is a medical malpractice case.  The trial court granted the
defendants' motion for summary judgment, based on the insufficiency of
the affidavits submitted by the plaintiff in opposition to the motion.
 The plaintiff appeals the trial court's decision.  We remand.

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

EMMA WHITE SMITH
vs.
HUBERT SMITH

Court:TCA
                        
Judge:CRAWFORD

First Paragraph:

This is a divorce case.  Plaintiff, Emma White Smith (Wife) and
defendant, Hubert Smith (Husband), were divorced by decree entered May
16, 1997.

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

STATE OF TENNESSEE
vs.
DANNY D. ANDERSON

Court:TCCA
                        
Judge:SUMMERS

First Paragraph:

This matter is before the Court upon the state's motion, pursuant to
Rule 20, Rules of the Court of Criminal Appeals, to affirm the
judgment of the trial court by order rather than formal opinion.  The
appellant pled guilty on October 9, 1984, to forgery and passing
forged papers, third degree burglary and grand larceny, and grand
larceny and receiving and concealing stolen property.  The appellant
received an effective sentence of four years.  The appellant did not
appeal these convictions.  On April 28, 1997, the appellant filed
motions in the trial court to expunge the record of these convictions.
 The trial court dismissed the motions without a hearing.

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

DONNIE EUGENE BENSON
vs.
STATE OF TENNESSEE

Court:TCCA

Judge:SMITH

First Paragraph:

This matter is before the Court upon the appellant's pro se Request to
Proceed on the Record Without the Filing of Briefs.  The state opposes
the motion.  The appellant is appealing from the dismissal of his
petition for post-conviction relief without a hearing.  In finding
that the appellant's petition was barred by the statute of limitation,
the trial court noted that the appellant pled guilty to one count of
aggravated rape on April 13, 1987.  No appeal was taken.  The trial
court held that the petitioner's claims, which did not fall within any
of the statutorily recognized exceptions, were barred by the statute
of limitation.

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

AUBREY M. BRIGANCE
vs.
STATE OF TENNESSEE

Court:TCCA
                      
Judge:SUMMERS

First Paragraph:

This matter is before the court upon the state's motion, pursuant to
Rule 20, Rules of the Court of Criminal Appeals, to affirm the
judgment of the trial court by order rather than formal opinion.  On
December 4, 1978, the petitioner pled guilty to first degree burglary
and was sentenced to five years imprisonment.  No appeal was taken. 
On May 7, 1996, the petitioner filed a petition for post-conviction
relief alleging an involuntary guilty plea and ineffective assistance
of counsel.  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/brigance_ord.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
JAMES FERNANDEZ

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

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

                                VICTOR S. JOHNSON, III
                                District Attorney General

                                ROGER MOORE 
                                Asst District Attorney General
                                Washington Square, Suite 500 
                                222 Second Avenue South
                                Nashville, TN  37201 
                          
Judge:WOODALL

First Paragraph:

Following a jury trial in Davidson County Criminal Court, James
Fernandez, the Defendant, was convicted of one count of attempt to
commit premeditated first degree murder and one count of felony
murder.  He was sentenced by the trial court to eighteen (18) years
for the conviction of attempt to commit first degree murder and a life
sentence for the conviction of felony murder.  The life sentence was
ordered to be served consecutively to the first sentence of eighteen
(18) years.

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

BILLY RAY IRICK
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

DOUGLAS A. TRANT                JOHN KNOX WALKUP 
900 South Gay Street            Attorney General & Reporter
Ste. 1502, Riverview Tower
Knoxville, TN  37902            AMY L. TARKINGTON 
                                Assistant Attorney General
T. HAROLD PINKLEY               2nd Floor, Cordell Hull Building
CHIMBLISS & BAHNER              425 Fifth Avenue North 
1000 Tallan Building            Nashville, TN  37243-0943
Two Union Square
Chattanooga, TN  37402          RANDALL EUGENE NICHOLS
                                District Attorney General

                                ROBERT L. JOLLEY, JR.
                                Asst District Attorney General
                                400 Main Street
                                P.O. Box 1468
                                Knoxville, TN  37901 
                          
Judge:WOODALL

First Paragraph:

The Petitioner, Billy Ray Irick, appeals as of right pursuant to Rule
3 of the Tennessee Rules of Appellate Procedure from the denial of his
petition for post-conviction relief by the Knox County Criminal Court.
He argues that he received the ineffective assistance of counsel, that
the state's violation of its duty under Brady v. Maryland warrants a
new trial, and that his sentence of death must be put aside because
the four aggravating circumstances found by the jury were invalid.

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

STATE OF TENNESSEE
vs.
GREG SIMMONS

Court:TCCA

Attorneys: 

For Appellant:              For Appellee:

William D. Massey           John Knox Walkup
Attorney                    Attorney General and Reporter
3074 East Street    
Memphis, TN  38128          Georgia Blythe Felner       
                            Counsel for the State 
                            450 James Robertson Parkway
                            Nashville, TN  37243-0493

                            James Challen
                            Asst District Attorney General
                            Shelby County District Attorney 
                            General's Office
                            201 Poplar Avenue, Third Floor
                            Memphis, TN  38103                         

Judge:WADE

First Paragraph:

The defendant, Greg Simmons, pled guilty to two counts of driving on a
revoked license, reckless driving, and simple possession of cocaine. 
For these four Class A misdemeanors, the trial court imposed
concurrent sentences of ninety days and fines of $500.00 on each
count.  The single issue presented for our review is whether the trial
court erred by denying probation or an alternative sentence under the
Community Corrections Act.  We find no error and affirm the judgment
of the trial court.

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

STATE OF TENNESSEE
vs.
DONALD P. SPICER

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:


MARVIN E. BALLIN and                JOHN KNOX WALKUP
MARK A. MESLER (on appeal only)     Attorney General & Reporter
200 Jefferson Ave., Suite 1250
Memphis, TN   38103                 KENNETH W. RUCKER
                                    Asst. Attorney General
                                    450 James Robertson Pkwy.                               
                                    Nashville, TN  37243-0493
                
                                    WILLIAM L. GIBBONS
                                    District Attorney General

                                    JENNIFER S. NICHOLS
                                    Asst. District Attorney General
                                    201 Poplar Ave.
                                    Criminal Justice Ctr --Third Fl.
                                    Memphis,  TN   38103                          

Judge:PEAY

First Paragraph:

The defendant was indicted separately for rape of a child and
aggravated sexual battery.  The offenses were consolidated for a jury
trial at which the defendant was convicted of rape of a child and
misdemeanor assault.  After a hearing, the lower court sentenced him
to eleven months, twenty-nine days on the assault conviction, and to
eighteen years incarceration on the rape conviction; he was also fined
two thousand five hundred dollars ($2500) on each offense.  The
sentences were ordered to run concurrently.

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

STATE OF TENNESSEE
vs.
ALONZO TONY WATSON

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:


PAULA OGLE BLAIR                JOHN KNOX WALKUP
176 2nd Ave. N.                 Attorney General & Reporter
Suite 406
Nashville, TN   37201           LISA A. NAYLOR
      (On appeal)               Asst. Attorney General
                                450 James Robertson Pkwy.   
                                GREGORY D. SMITH                
                                Nashville, TN  37243-0493
One Public Square               
Suite 134                       JOHN CARNEY
Clarksville, TN   37040         District Attorney General
      (At trial)
                                WILLIAM CLOUD
                                Asst. District Attorney General
                                204 Franklin St.
                                Suite 200
                                Clarksville, TN   37040 
                          
Judge:PEAY

First Paragraph:

The defendant was charged with forgery, passing a forged instrument,
robbery and evading arrest.  A jury convicted him of all but the
passing a forged instrument charge, which was dismissed.  He was
sentenced as a Range II multiple offender to two years incarceration
on the forgery conviction; six years incarceration on the robbery; and
eleven months, twenty-nine days in the workhouse for evading arrest. 
In this appeal as of right, the defendant contends that the evidence
is insufficient to support his convictions; that the State's proof
that he committed the evading arrest offense on January 20, 1995, is
at fatal variance with the January 11, 1995, date alleged in the
indictment; that the State failed to prove venue; and that the trial
court erred in refusing to give certain special jury instructions. 
Upon our review of the record, we affirm the judgment below.

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

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