TBALink Opinion-Flash

January 22, 1998 -- Volume #4 -- Number #014

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
03-New Opinons From TCA
10-New Opinons From TCCA

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George Dean
TBALink Chief Editor


JAMES DOLLAR
VS.
FLORIDA STEEL CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:

FOR APPELLANT:                      FOR APPELLEE:
Jerry O. Potter                     Ricky L. Boren
W. Timothy Hayes, Jr.               Jackson, Tennessee
Memphis, Tennessee
                          

Judge:Ash

First Paragraph:

This worker's 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) (1996 Supp.) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law.  In this appeal, the employer, Florida Steel Corporation,
contends:  (1) that the trial court improperly awarded the plaintiff
additional temporary total disability benefits from December 27, 1994
until October 27, 1995, and (2) that the trial court  acted improperly
in awarding the plaintiff permanent total benefits in the amount of
100% to the body as a whole.

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

TERESA DAVIS and husband      
FRANK DAVIS
VS.
MODINE MANUFACTURING CO.,     
CHRISTOPHER VESTULA and MIKE SWEE

Court:TCA

Attorneys:

DAVID A. STUART, Stuart & Van Riper, Clinton, for Appellants.

RALPH A. MORRIS and WENDY L. NUTT, Brittain, Sledz, Morris & Slovak,
Chicago, and EDWARD G. PHILLIPS, Kramer, Rayson, Leake, Rodgers &
Morgan, Knoxville, for Appellee Modine Manufacturing Co.
                          
Judge:McMurray

First Paragraph:

Plaintiff, Teresa Davis, brought this sexual harassment action against
Modine Manufacturing Co. and its employee, Chris Vsetula, alleging
unlawful sexual discrimination in violation of the Tennessee Human
Rights Act, T.C.A. 4-21-101 et seq.  Modine moved for summary judgment
upon all claims.  The Motion was granted. Vsetula did not move for
summary judgment and is not involved in this appeal.  The issue
presented is whether the chancellor erred in granting Modine summary
judgment.  We affirm the judgment of the chancellor.

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

KATHLEEN FERRELL, et al.
VS.
WALTER REPASS, Executor

Court:TCA

Attorneys:

DOUGLAS R. BEIER OF MORRISTOWN FOR APPELLANT

WILLIAM E. PHILLIPS OF ROGERSVILLE FOR APPELLEES
                          
Judge:Goddard

First Paragraph:

This is a suit by Kathleen Ferrell, Alfred Repass, Doris Chapman,
Mabel Moore, and Norman Repass, children of Eulice Repass, and Portia
Fielder, Debra Hays, Matine Switala, and Ronald Pearce, children of a
deceased child of Eulice Repass, seeking to invalidate his will upon
the grounds that he was incompetent to make it and that he was unduly
influenced by his son, Walter Repass, who was sole Beneficiary under
the will.

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

RESIDENTS AGAINST INDUSTRIAL       
LANDFILL EXPANSION, INC. (RAILE),
PERRY RUSSELL, DON BEAL, BETTY   
BEAL, GARY LONG and JUDY LONG
and                                                
DIANNA WILLIAMS
VS.
DIVERSIFIED SYSTEMS, INC. and    
WILLIAM T. ALT

Court:TCA

Attorneys: 

For Appellant                   For Appellee William T. Alt

GARY A. DAVIS                   ELIZABETH G. ALT
Knoxville, Tennessee            Chattanooga, Tennessee


                                For Appellee Diversified
                                Systems, Inc.

                                NO APPEARANCE
                         

Judge:Susano

First Paragraph:

The trial court granted the defendants, Diversified Systems, Inc.
("Diversified") and its attorney, William T. Alt ("Alt"), summary
judgment on the complaint for malicious prosecution and abuse of
process filed by the plaintiffs, Residents Against Industrial Landfill
Expansion, Inc. ("RAILE") and six individuals (collectively, "the
plaintiffs").  Dianna Williams ("Williams") is the only plaintiff who
has appealed.

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


STATE OF TENNESSEE
VS.
JOHNNY LEE BOWMAN

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

RAYMOND C. CONKIN, JR.          JOHN KNOX WALKUP
320 Cherokee St., Suite B       Attorney General and Reporter
Kingsport, TN 37660
                                ELIZABETH T. RYAN
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                DOUGLAS DIMOND
                                Legal Assistant

                                GREELEY WELLS
                                District Attorney General

                                EDWARD WILSON
                                Assistant Attorney General
                                P. O. Box 526
                                Blountville, TN 37617                          

Judge:SMITH

First Paragraph:

Appellant Johnny Lee Bowman appeals from a jury verdict rendered on
September 12, 1995 in the Sullivan County Criminal Court finding him
guilty of aggravated perjury.  As a Range III persistent offender,
Appellant received a sentence of ten years confinement in the
Tennessee Department of Correction.   Appellant presents two issues
for consideration on this direct appeal:  (1) whether claimed memory
loss constitutes a retraction of perjured testimony within the meaning
of Tenn. Code Ann. S 39-16-704; and (2) whether the evidence is
sufficient  to sustain Appellant's conviction for aggravated perjury.

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

STEVE CARROLL
VS.
HOWARD CARLTON, WARDEN

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

STEVE CARROLL, pro se           JOHN KNOX WALKUP 
N.E.C.C. #256046                Attorney General & Reporter
P.O. Box 5000 
Mountain City, TN  37683        ELIZABETH T. RYAN 
                                Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                DAVID CROCKETT 
                                District Attorney General
                                Route 19, Box 99
                                Johnson City, TN  37601 
                          
Judge:WOODALL

First Paragraph:

The Petitioner, Steve Carroll, appeals as of right the trial court's
dismissal of his petition for writ of habeas corpus.  Petitioner
argues four issues in this pro se appeal: (1) the indictments were
defective in that they were not properly signed by the District
Attorney; (2) the trial court erred in dismissing the petition before
the State's response was filed; (3) the trial court erred in allowing
different classes of offenses to be included in the same indictment;
and (4) the trial court violated Tenn. Code Ann. S 29-21-108 in
failing to grant the writ.  We affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCCA/carrolls_opn.WP6
Opinion-Flash
                                                      
STATE OF TENNESSEE
VS.
MARK ROBERT CARTER

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

Andrew Jackson Dearing, III     John Knox Walkup
117 South Main Street           Attorney General & Reporter 
Suite 101
Shelbyville, TN 37160           Georgia Blythe Felner
                                Counsel for the State
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493
    
                                W. Michael McCown
                                District Attorney General

                                Robert Crigler
                                Asst District Attorney General
                                One Public Square, Suite 100
                                Shelbyville, TN 37160
                              

Judge:SUMMERS

First Paragraph:

The appellant, Mark Robert Carter, pled guilty to reckless
endangerment and received a sentence of one year and six months in
jail.  At his sentencing hearing, the appellant requested probation,
but his request was denied.  He now appeals to this Court.

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

STATE OF TENNESSEE
VS.
LINCOLN C.  FRENCHELL

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

Gerald L. Melton                John Knox Walkup
District Public Defender        Attorney General & Reporter

Jeffrey S. Burton               Sarah M. Branch
Assistant Public Defender       Counsel for the State
201 West Main Street            450 James Robertson Parkway
Suite 101, Court Square Bldg.   Nashville, TN 37243-0493
Murfreesboro, TN 37130  
                                William C. Whitesell
                                District Attorney General

                                Paul A. Holcombe, III
                                Asst District Atty General
                                Rutherford County Judicial BLDG
                                Murfreesboro, TN 37130
                              
Judge:SUMMERS

First Paragraph:

The appellant, Lincoln C. Frenchell, pled guilty to theft of property
valued over $1000 and received a sentence of two years supervised
probation with diversion.  However, approximately one month later, the
district attorney's office filed a motion to terminate the appellant's
diversion because he had misrepresented to the court his lack of a
prior criminal record.  The appellant has a felony record in New York.
  Also, while on probation, the appellant violated the conditions of
his probation.  After a revocation/sentencing hearing, the trial court
revoked the appellant's probation and sentenced him to two years in
prison.  He now appeals that  judgment.

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

TERRENCE S. LIDDLE
VS.
RICKY BELL, WARDEN

Court:TCCA

Judge:SMITH

First Paragraph:

    O R D E R
This matter is before the Court upon the state's motion requesting
that the judgment in the above-styled cause be affirmed pursuant to
Rule 20, Tennessee Court of Criminal Appeals Rules.  The appellant
opposes the motion, and he has filed a motion to submit the case for
decision on the record and the appellant's brief.  Based on our
review, we affirm the judgment of the trial court pursuant to Rule 20.

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

DERRICK RICHARDSON
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

ARDENA J. GARTH                     JOHN KNOX WALKUP
District Public Defender            Attorney General and Reporter
11th Judicial District
                                    ROBIN L. HARRIS
DONNA ROBINSON MILLER               Asst Attorney General
Asst District Public Defender       450 James Robertson Parkway
Suite 300 - 701 Cherry St.          Nashville, TN 37243
Chattanooga, TN 37402
                                    BILL COX
                                    District Attorney General

                                    LELAND DAVIS
                                    Asst District Atty General
                                    City and County Courts Building
                                    Chattanooga, TN 37402
                         
Judge:SMITH

First Paragraph:

Appellant Derrick Richardson appeals the trial court's denial of his
petition for post-conviction relief.  He presents the following issue
for review:  whether the trial court erred in finding that Appellant's
counsel rendered effective assistance both at trial and on appeal.

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

LONNIE SIMPSON
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

DOUGLAS JENKINS                 JOHN KNOX WALKUP
Attorney at Law                 Attorney General & Reporter
P.O. Box 724
Morristown, TN  37814           CLINTON J. MORGAN
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493    

                                C. BERKELEY BELL, JR.
                                District Attorney General
                            
                                VICTOR VAUGHN
                                Asst. District Attorney General
                                510 Allison St.
                                Morristown, TN  37814
                         
Judge:WITT

First Paragraph:

The petitioner, Lonnie Simpson, appeals the Hamblen County Criminal
Court's denial of his petition for post-conviction relief.  The
convictions under attack resulted from Simpson's guilty pleas to two
counts of the crime of robbery.  In his petition, Simpson claimed he
was denied the effective assistance of counsel because his attorney
did not adequately investigate his case; therefore, he had no choice
but to plead guilty.  Following a hearing at which Simpson presented
his own testimony as well as that of several witnesses whom he claimed
his attorney should have contacted, the lower court found that
Simpson's guilty pleas were "intelligently, voluntarily and
understandably entered into," rather than being the product of
counsel's ineffectiveness.  As such, the court dismissed the petition.

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

STATE OF TENNESSEE
VS.
DAVID TAYLOR

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

MARK E. STEPHENS                JOHN KNOX WALKUP
District Public Defender        Attorney General and Reporter

PAULA R. VOSS                   MARVIN E. CLEMENTS, JR.
JOHN HALSTEAD                   Assistant Attorney General
Asst Public Defenders           425 5th Avenue North
1209 Euclid Avenue              Nashville, TN 37243
Knoxville, TN 37921
                                RANDALL E. NICHOLS
                                District Attorney General

                                PAULA GENTRY
                                Asst District Attorney General
                                City-County Building
                                Knoxville, TN 37902
                          
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 probation.  He
argues that the trial judge failed to exercise conscientious judgment
and abused his discretion.  We disagree and affirm the judgment of the
trial court.

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

STATE OF TENNESSEE
vs.
JOHN E. TIDWELL

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

John H. Henderson               John Knox Walkup
District Public Defender        Attorney General & Reporter

Elaine B. Beeler                Georgia Blythe Felner
Assistant Public Defender       Counsel for the State
P.O. Box 68                     450 James Robertson Parkway
Franklin, TN 37065-0068         Nashville, TN 37243-0493
    
                                Joseph D. Baugh
                                District Attorney General

                                Ronald Davis
                                Asst District Attorney General
                                P.O. Box 937
                                Franklin, TN 37065                          

Judge:SUMMERS

First Paragraph:

The appellant, John E. Tidwell, pled guilty to aggravated burglary and
theft of property over $1000 in June 1996.  The parties agreed that
the defendant would receive a sentence of three years on the
aggravated burglary and two years on the theft.   The court then
sentenced the appellant to serve five years on probation, with
seventy-five days to be served in jail and 300 hours of community
service work.  The appellant was also ordered to pay restitution.

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

STATE OF TENNESSEE
vs.
ROY DALE WAKEFIELD, JR.

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

TOM WHITESIDE                       JOHN KNOX WALKUP
Attorney at Law                     Attorney General & Reporter
172 Second Ave. N. Ste. 214
Nashville, TN  37201                ELIZABETH B. MARNEY
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493    
                            
                                    VICTOR S. JOHNSON, III
                                    District Attorney General

                                    NICK BAILEY
                                    Asst District Atty General
                                    222 Second Ave North, Ste. 500
                                    Nashville, TN  37201-1649

                         
Judge:WITT

First Paragraph:

The defendant, Roy Dale Wakefield, Jr., appeals his conviction of
aggravated robbery and attempted aggravated robbery.  His conviction
resulted from a jury trial in the Davidson County Criminal Court.  A
Range I offender, Wakefield was given an effective eleven year
sentence, which he is serving in the Department of Correction.

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

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