TBALink Opinion-Flash

March 2, 1998 -- Volume #4 -- Number #039

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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01-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
14-New Opinons From TCA
07-New Opinons From TCCA

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TBALink Chief Editor


PAGE G. STUART 
vs.
STATE OF TENNESSEE          
DEPARTMENT OF SAFETY    

Court:TSC

Attorneys: 

For Appellant:              For Appellee:

RICHARD MCGEE               JOHN KNOX WALKUP
JOHN E. RODGERS, SR.        Attorney General and Reporter
Nashville, TN
                            MICHAEL E. MOORE    
                            Solicitor General

                            GORDON W. SMITH
                            Associate Solicitor General

                            VICTOR S. JOHNSON, III
                            District Attorney General

                            JOHN C. ZIMMERMANN
                            Assistant District Attorney General
                            Nashville, TN
                         

Judge:BIRCH

First Paragraph:

During a wide-ranging investigation, law enforcement officers located
and seized several items of property thought to be used in the conduct
of an illegal drug enterprise.  Criminal charges followed the several
seizures, and Page Stuart, the appellant, pleaded guilty to offenses
involving delivery and conspiracy to deliver large quantities of
marijuana.  The State thereafter instituted administrative proceedings
under Tenn. Code Ann. S 53-11-201 et seq. (1991 & Supp. 1992) for the
forfeiture of the property seized.  Although Stuart challenged the
forfeiture of some of the property, he was not successful, and both
the Chancery Court and the Court of Appeals upheld the forfeiture.

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

ALLSTATE INSURANCE COMPANY  
vs.
AUTO OWNERS INSURANCE COMPANY, INC.,
and RONALD K. MINK

Court:TCA

Attorneys:

BRIAN H. TRAMMELL OF KNOXVILLE FOR APPELLANT

LINDA J. HAMILTON MOWLES OF KNOXVILLE FOR APPELLEE AUTO OWNERS
INSURANCE COMPANY, INC.
                          
Judge:Goddard

First Paragraph:

Allstate Insurance Company ("Allstate") appeals the dismissal of its
suit against Auto Owners Insurance Company ("Auto Owners") and Ronald
K. Mink by Chancellor McDonald, Knox County Chancery Court.  The suit
was the result of Auto Owners' denial of coverage to Mr. Mink, which
forced Allstate to pay to its insured, Susan E. Smith, the sum of
$17,289.33, based on the judgment she received in the Circuit Court
action.  Allstate sought recovery for this amount plus payment made to
Mrs. Smith under the medical coverage of $1712.60 and payment under
the property damage coverage of $2009.54.

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

WILLIAM JOSEPH BELLAMY
vs.
STATE OF TENNESSEE

Court:TCA

Attorneys:

JOHN W. CLEVELAND OF SWEETWATER FOR APPELLANT

JOHN KNOX WALKUP, Attorney General and Reporter, and DAVID T.
WHITEFIELD, Senior Counsel, Civil Rights and Claims Division,
Nashville, For Appellee
                          
Judge:Goddard

First Paragraph:

William Joseph Bellamy appeals a summary judgment granted in the favor
of the State of Tennessee in his suit which, according to the notice
of claim filed with the Tennessee Claims Commission by his attorney.

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

RONNIE BRADFIELD
vs.
STEPHANIE GREEN COLE

Court:TCA

Attorneys: 

RONNIE BRADFIELD a/k/a Paul Farnsworth, pro se
Whiteville, Tennessee

GERALD S. GREEN
Memphis, Tennessee
Attorney for Appellee
                         
Judge:HIGHERS

First Paragraph:

Plaintiff-Appellant ("Plaintiff") brought an action in the trial court
for legal malpractice against his former attorney ("Defendant").  The
court granted summary judgment for Defendant, and Plaintiff has
appealed.

URL:http://www.tba.org/tba_files/TCA/bradfi2r_opn.WP6
Opinion-Flash

JERRY RAY BROWN
vs.
PHILLIP L. DAVIDSON

Court:TCA
                       
Judge:LILLARD

First Paragraph:

Upon consideration of the petition for rehearing of
Plaintiff/Appellant Jerry Ray Brown, the  petition is denied.

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

VICTOR D. BUNCH
vs.
LOUIS A. LLOYD

Court:TCA

Attorneys:

For Appellant                   For Appellee

ROBERT W. KNOLTON               HARRY LILLARD
Kramer, Rayson, Leake,          Oak Ridge, Tennessee
Rodgers & Morgan
Oak Ridge, Tennessee
                          
Judge:Susano

First Paragraph:

The issues before us arise out of an award of discretionary costs. 
Following the entry of an order of compromise and dismissal, the
settling plaintiff timely filed a motion for discretionary costs
pursuant to Rule 54.04(2), Tenn.R.Civ.P.  The defendant opposed the
motion.  The trial court awarded the plaintiff discretionary costs of
$794, and the defendant appealed.

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

MICHAEL EUGENE COPAS
vs.
JULIE MARIE COPAS

Court:TCA

Attorneys: 

For Appellant                   For Appellee

RICHARD T. WALLACE              DWIGHT E. STOKES
Ogle & Wallace, P.C.            Galyon & Stokes
Sevierville, Tennessee          Sevierville, Tennessee
                         
Judge:Susano

First Paragraph:

This is a divorce case.  However, the issues presented for our review
pertain solely to the jurisdiction of the trial court to hear and
determine an interstate child custody dispute under the Uniform Child
Custody Jurisdiction Act ("UCCJA").  The trial court held that it had
jurisdiction under the Tennessee version of the UCCJA to decide
custody and visitation issues pertaining to the parties' only child,
Carver Michael Copas ("Carver").  The child's mother, the defendant
Julie Marie Copas ("Mother"), appealed, arguing that the trial court
lacked jurisdiction under T.C.A. S 36-6-201, et seq., the Tennessee
version of the UCCJA, to address such custody and visitation issues. 
Alternatively, Mother argues that the trial court erred in failing to
communicate with the Florida trial court where Mother had sought a
divorce and custody of Carver.  She claims that the Tennessee court
was required by the provisions of T.C.A. S 36-6-207(c) to communicate
with the Florida court.  We find Mother's first issue to be
dispositive of this appeal.

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

WILMA JEAN LAMPLEY
vs.
GORDON RAY LAMPLEY

Court:TCA
                    
Judge:KOCH

First Paragraph:

I have taken the unusual step of preparing this separate opinion
because the assertions in Mr. Lampley's petition for rehearing require
some response.  The petition states that this court's February 6, 1998
opinion "totally overlooked or refused to acknowledge" Ms. Lampley's
August 1996 mortgage application in which Ms. Lampley states that her
gross monthly income was $6,652.  The petition also asserts that we
must treat this statement as a binding admission by Ms. Lampley
because of our decision in Patterson v. Patterson, App. No. 88-268 II,
1989 WL 5451 (Tenn. Ct. App. Jan. 27, 1989), perm. app. denied (Tenn.
May 1, 1989).  Neither assertion is correct.

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

GENE L. MILLER
vs.
TARA L. STURDIVANT, M.D.,     
JACQUELINE CARUTHERS,         
and DORIS ROSS

Court:TCA

Attorneys:

For Appellant                   For Appellees

GENE L. MILLER, Pro Se          BRUCE A. ANDERSON
Powell, Tennessee               Butler, Vines and Babb, P.L.L.C.
                                Knoxville, Tennessee
                          
Judge:Susano

First Paragraph:

Gene L. Miller filed separate actions against Tara L. Sturdivant,
M.D., Jacqueline Caruthers, and Doris Ross, for alleged medical
malpractice arising out of treatment rendered to him at the Knox
County Health Department.  The complaints were consolidated in
Division Three of the Knox County Circuit Court.  The defendants filed
a joint motion for summary judgment which was supported by the
affidavit of the defendant Sturdivant.  The affidavit negates
essential elements of the plaintiff's causes of action.  The plaintiff
failed to file material of the nature, and in the form, contemplated
by Rule 56.06, Tenn.R.Civ.P.  Since the facts properly before us show
that the defendants are "entitled to a judgment as a matter of law,"
it results that the summary judgment granted to the defendants by the
trial court must be affirmed at the plaintiff's costs.  See Rule
56.04, Tenn.R.Civ.P.  This case is remanded to the trial court for
collection of costs assessed below, pursuant to applicable law.

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

PATRICIA ANNE PEHLMAN
vs.
GREGORY LAWRENCE        
PEHLMAN

Court:TCA

Attorneys: 

Robert L. Crossley, Knoxville, for Appellant.

Wanda G. Sobieski, Knoxville, for Intervenor.
                         
Judge:INMAN

First Paragraph:

At the outset we think it well to observe what this case is not about:
the enforcement of a lien for attorney fees.

URL:http://www.tba.org/tba_files/TCA/pehlman_ca3.WP6
Opinion-Flash

JAMES N. RAMSEY, District      
Attorney General, Seventh      
Judicial District
vs.
TOWN OF OLIVER SPRINGS, et al

Court:TCA

Attorneys:

For Appellant                       For Appellees

JOHN KNOX WALKUP                    JAMES M. WEBSTER
Attorney General & Reporter         Oak Ridge, Tennessee
Nashville, Tennessee

MICHAEL E. MOORE
Solicitor General
Nashville, Tennessee

GORDON W. SMITH
Associate Solicitor General
Nashville, Tennessee
                          
Judge:Susano

First Paragraph:

This is a declaratory judgment action brought by James N. Ramsey
("Ramsey"), District Attorney General for Anderson County (Seventh
Judicial District).  He sued the Town of Oliver Springs ("the Town")
and a number of its officials, seeking a declaration that the Town's
blanket policy and practice of prosecuting Anderson County offenses in
Roane County is unlawful.  This controversy stems from the fact that,
while portions of the Town are located in three counties -- Anderson,
Roane, and Morgan -- the Town's City Court is physically located in
Roane County.  Based on the parties' stipulation of facts, the trial
court concluded that the Town could continue to prosecute state cases
arising in Anderson County, in the City Court physically located in
Roane County, provided that it first obtains a waiver of the right to
venue from each defendant.  Ramsey's appeal followed.

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

JOHN WAYNE SLATE, SR
vs.
STATE OF TENNESSEE, et al.

Court:TCA

Attorneys:

JOHN WAYNE SLATE, SR., Pro Se

JOHN KNOX WALKUP, Attorney General and Reporter, and DAVID T.
WHITEFIELD, Senior Counsel, Civil Rights and Claims Division,
Nashville, For Appellees
                          
Judge:Goddard

First Paragraph:

John Wayne Slate, Sr., who is incarcerated in a penal institution of
this State, appearing pro se, appeals a judgment of the Chancery Court
for Sevier County, which dismissed his complaint (which is styled a
motion) seeking disbarment of Circuit Judge Ben Hooper and Attorney
General Al Schmutzer, Jr.

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

DEBRA A. TIPTON
vs.
JOHN W. HARRIS, JR.

Court:TCA

Attorneys:

John W. Harris, Jr., Pro Se     William Bryan Penn of Memphis
                                For Appellee                          

Judge:CRAWFORD

First Paragraph:

This case involves the issuance of an "Agreed Order of Protection"
pursuant to T.C.A. S 36-3-605 (1996).  Respondent-appellant John W.
Harris, Jr. appeals the issuance of the order, asserting (1) that the
court did not have subject matter jurisdiction, (2) that he did not
agree to the issuance of the order, and (3) that the order was
improperly granted because he was not afforded an opportunity to be
heard.

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

DAVID LEE WALKER
vs.
EXCHANGE INSURANCE      
COMPANY and CHATTANOOGA 
INSURANCE AGENCY, INC.

Court:TCA

Attorneys:

R. Dee Hobbs, Chattanooga, for Appellant.

David P. Hawley, Chattanooga, for Chattanooga Insurance Agency,
Appellee.

W. Gerald Tidwell, Jr., Chattanooga, for Exchange Insurance Company,
Appellee.
                          
Judge:INMAN

First Paragraph:

This action to recover on a policy of fire insurance was resisted on
the ground that the policy was void ab initio because the plaintiff
denied in his application that a prior policy had been canceled, and
because the damaged property had been vacant for more than 60 days in
violation of the policy.

URL:http://www.tba.org/tba_files/TCA/walker_ca3.WP6
Opinion-Flash

HENRY WITT and wife           
MARGARET WITT
vs.
TENNESSEE FARMERS MUTUAL          
INSURANCE COMPANY

Court:TCA

Attorneys:

For Appellant                   For Appellees

DOUGLAS M. CAMPBELL             RICHARD A. FISHER
PAUL CAMPBELL, III              JAMES F. LOGAN, JR.
Campbell & Campbell             Logan, Thompson, Miller, Bilbo,
Chattanooga, Tennessee          Thompson and Fisher, P.C.
                                Cleveland, Tennessee

                                BERT H. BATES
                                Bates, Sellers & Robinson
                                Cleveland, Tennessee
                          

Judge:Susano

First Paragraph:

The plaintiffs, Henry Witt and wife, Margaret Witt ("the Witts"), seek
to domesticate a foreign judgment against Tennessee Farmers Mutual
Insurance Company ("Tennessee Farmers"), pursuant to the provisions of
the Uniform Enforcement of Foreign Judgments Act, T.C.A. S 26-6-101,
et seq.  The judgment sought to be domesticated is based on the
uninsured motorist coverage of an automobile insurance policy issued
by Tennessee Farmers.

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

STATE OF TENNESSEE
vs.
SAMUEL D. BRADEN

Court:TCCA

Attorneys:

FOR THE APPELLANT:                      FOR THE APPELLEE:

HOWELL G. CLEMENTS  (trial & appeal)    JOHN KNOX WALKUP
JANE M. STAHL (appeal)                  Attorney General & Reporter
Attorneys at Law
801 Pine St.                            DARYL J. BRAND
Chattanooga, TN  37401-1749             Assistant Attorney General
                                        Criminal Justice Division
PAUL CROSS (trial)                      450 James Robertson Parkway
CATHERINE CLARK (trial)                 Nashville, TN 37243-0493    
P.O. Box 99
Monteagle, TN  37356                    J. MICHAEL TAYLOR
                                        District Attorney General
                            
                                        THOMAS D. HEMBREE
                                        Asst. District Atty General                         
                                        2d Floor, Lawyers Bldg.
                                        Jasper, TN  37347
                          
Judge:WITT

First Paragraph:

Samuel D. Braden appeals his conviction of the voluntary manslaughter
of his wife.  Braden received his conviction following a jury trial in
the Grundy County Circuit Court and was sentenced to serve six years
in the Department of Correction.

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

STATE OF TENNESSEE
vs.
SCOTTY S. DAVENPORT

Court:TCCA

Attorneys:

For Appellant:                  For Appellee:

Jeffrey A. DeVasher             Charles W. Burson
Assistant Public Defender       Attorney General and Reporter
(on appeal)
                                Lisa A. Naylor
James P. McNamara               Assistant Attorney General
Assistant Public Defender       450 James Robertson Parkway
(on appeal)                     Nashville, TN  37243-0493

David M. Siegel                 Nick Bailey
Assistant Public Defender       Assistant District Attorney General
(at trial)                  
                                Isabel Maumus
1202 Stahlman Building          Assistant District Attorney General
Union Street                    Washington Square, Suite 500
Nashville, TN  37201            222 2nd Ave., North
                                Nashville, TN  37201-1649
                          

Judge:WADE

First Paragraph:

The defendant, Scotty S. Davenport, appeals from his conviction of
aggravated robbery.  The trial court imposed a Range I sentence of
eight years.

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

MAURICE DONALDSON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant               For the Appellee    

Henry R. Allison, III           John Knox Walkup
500 Church Street               Attorney General & Reporter
Fifth Floor                 
Nashville, TN. 37219            Daryl J. Brand
                                Assistant Attorney General
                                2nd Floor Cordell Hull Building
                                425 Fifth Avenue North
                                Nashville, TN. 37243-0493
                            
                                Victor S. Johnson, III
                                District Attorney General

                                Thomas B. Thurman
                                Deputy District Attorney General
                                Washington Square, Ste 500                              
                                222 Second Avenue North
                                Nashville, TN. 37201-1649
                                                                      

Judge:BARKER

First Paragraph:

The appellant, Maurice Donaldson, appeals the Davidson County Criminal
Court's denial of his motion to reopen his post-conviction petition. 
He treats this appeal as one of right and he asks this Court to remand
his case to the trial court for an evidentiary hearing.  We find that
the trial court did not abuse its discretion in denying appellant's
motion to reopen and we dismiss the appeal pursuant to Rule 20 of the
Tennessee Court of Criminal Appeals.

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

GARY T. DOTSON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:


DAVID A. DOYLE                  JOHN KNOX WALKUP
District Public Defender        Attorney General & Reporter
117 E. Main St.
Gallatin, TN   37066            ELIZABETH B. MARNEY
                                Asst. Attorney General
                                450 James Robertson Pkwy.                               
                                Nashville, TN  37243-0493
                
                                LAWRENCE RAY WHITLEY
                                District Attorney General

                                DEE GAY
                                Asst. District Attorney General
                                113 W. Main St.
                                Gallatin, TN   37066
                                                          
Judge:PEAY

First Paragraph:

The petitioner was convicted of first-degree murder and employing a
firearm during the commission of a felony.  These convictions were
affirmed on direct appeal.  State v. Gary Thomas Dotson, No.
89-262-III, Sumner County (Tenn. Crim. App. filed Aug. 3, 1990, at
Nashville).  He is serving a life sentence plus five years for these
offenses.  In December 1992, he filed for post-conviction relief
alleging that his lawyers were ineffective at both his trial and on
direct appeal.  The court below denied relief, which he now appeals. 
He further alleges that the post-conviction court erred when it denied
his motion for forensic and psychological evaluations.  Upon our
review of both the record below and the trial record, we affirm.

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

STATE OF TENNESSEE
vs.
BRIAN KEITH HARDING

Court:TCCA

Attorneys: 

FOR THE APPELLANT:               FOR THE APPELLEE:


JOHN HENDERSON                  JOHN KNOX WALKUP
Public Defender                 Attorney General & Reporter

ELAINE B. BEELER                KAREN M. YACUZZO
Asst. Public Defender           Asst. Attorney General
P.O. Box 68                     450 James Robertson Pkwy.   
Franklin, TN 37065              Nashville, TN  37243-0493
                
                                JOSEPH D. BAUGH
                                District Attorney General

                                RONALD DAVIS
                                Asst. District Attorney General
                                P.O. Box 937
                                Franklin, TN 37065
                         
Judge:PEAY

First Paragraph:

The defendant was indicted on several charges stemming from three
separate incidents.  He was charged with two counts of aggravated
burglary, one count of theft of property valued at less than one
thousand dollars ($1000), and two counts of theft of property valued
at less than five hundred dollars ($500).  He ultimately pled guilty
to two counts of aggravated burglary and one count of theft of
property valued at less than five hundred dollars ($500).  As part of
the plea bargain, he agreed to three year sentences for each of the
aggravated burglaries and a thirty day sentence for the theft; all of
which were to run concurrently.  A sentencing hearing was held to
determine the manner in which the defendant should serve his sentence.
 The trial court denied his request for probation and ordered him to
serve his sentences in the Tennessee Department of Correction.

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

STATE OF TENNESSEE
vs.
MICKEY HARRIS

Court:TCCA

Attorneys:

FOR THE APPELLANT:               FOR THE APPELLEE:


JACKY O. BELLAR                 JOHN KNOX WALKUP
212 Main St.                    Attorney General & Reporter
P.O. Box 332                    
Carthage, TN 37030              CLINTON J. MORGAN
                                Counsel for the State
                                450 James Robertson Pkwy.                               
                                Nashville, TN  37243-0493
                
                                TOM P. THOMPSON
                                District Attorney General

                                DOUGLAS HALL
                                Asst. District Attorney General
                                111 Cherry St.
                                Lebanon, TN 37087
                                                          
Judge:PEAY

First Paragraph:

The defendant was indicted in October 1995 on three counts of passing
worthless checks.  Following a trial, a jury found him guilty of two
counts and ordered him to pay restitution in the amount of ten
thousand three hundred sixty-four dollars and eighty-one cents
($10,364.81).  The trial court sentenced the defendant to three years
for each of his convictions and immediately placed him on Community
Corrections.  The sentences are to run consecutively.  In this appeal
as of right, the defendant challenges the sufficiency of the evidence.
 After a review of the record and applicable law, we find that the
evidence supports the jury's verdict.  Therefore, we affirm the
judgment of the court below.

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

STATE OF TENNESSEE
vs.
TRAMPAS DALE SWEENEY

Court:TCCA

Attorneys:

For the Appellant               For the Appellee

C. Diane Crosier                John Knox Walkup
Assistant Public Defender       Attorney General & Reporter 
P.O. Box 68
Franklin, TN. 37065             Sarah M. Branch
                                Assistant Attorney General
                                2nd Floor Cordell Hull Building 
                                425 Fifth Avenue North
                                Nashville, TN. 37243-0943
    
                                Joseph D. Baugh, Jr.
                                District Attorney General
                                Williamson County Cthse. Ste. G-6
                                P.O. Box 937
                                Franklin, TN. 37065-0937

                                Jeff Burks
                                Asst District Attorney General
                                P.O. Box 937
                                Franklin, TN. 37065-0937
                          
Judge:BARKER

First Paragraph:

The appellant, Trampas Dale Sweeney, appeals as of right the sentences
he received following guilty pleas in the Circuit Court of Williamson
County to the offenses of evading arrest and driving a motor vehicle
while classified as an habitual motor vehicle offender ("HMVO").  The
trial court sentenced the appellant as a Range III persistent offender
and ordered him to serve five (5) years in the Tennessee Department of
Correction for driving a motor vehicle while declared an HMVO, a Class
E felony; and eleven (11) months and twenty-nine (29) days in the
Williamson County Jail for evading arrest, a Class A misdemeanor.  The
sentences were ordered to run concurrently for a total effective
sentence of five (5) years.

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

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