TBALink Opinion-Flash

April 6, 1998 -- Volume #4 -- Number #061

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
07-New Opinons From TCA
08-New Opinons From TCCA

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George Dean
TBALink Chief Editor


DEBORAH ELLIS
vs. 
NATIONAL UNION INSURANC    
COMPANY
and
SUE ANN HEAD

Court:TSC - Workers Comp Panel

Attorneys:

For Appellant:                          For Appellee, Deborah Ellis:

J. Bartlett Quinn                       Thomas L. Wyatt
Fleissner, Cooper, Marcus & Quinn       Summers & Wyatt
Chattanooga, Tennessee                  Chattanooga, Tennessee

                                        For Appellee, 
                                        Second Injury Fund:

                                        John Knox Walkup
                                        Attorney General & Reporter

                                        Sandra E. Keith
                                        Assistant Attorney General
                                        Nashville, Tennessee                          

Judge:Loser

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. section 50-6-225(e)(3) for hearing and reporting
of findings of fact and conclusions of law.  The employer's insurer
and the Second Injury Fund contend the evidence preponderates against
the trial court's finding that the employee's asthma is compensable;
and the employer's insurer contends the condition is not permanent. 
As discussed below, the panel concludes the judgment should be
affirmed.

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

STEVEN COBB
vs.
JOSEPH VINSON, Chairman     
LCRCF Disciplinary Board, et al

Court:TCA

Attorneys:

STEVEN COBB, pro se
Henning, Tennessee

JOHN KNOX WALKUP
Attorney General and Reporter
SOHNIA W. HONG
Assistant Attorney General
Attorneys for Appellee
                          
Judge:HIGHERS

First Paragraph:

Stephen Cobb ("petitioner") filed a pro se Petition for Writ of
Certiorari in the Circuit Court of Lake County against Joseph Vinson,
Chairman of the Lake County Regional Correctional Facility
disciplinary board ("LCRCF"); Billy Compton, warden of LCRCF; and
Donal Campbell ("commissioner"), commissioner of the Tennessee
Department of Correction (collectively "respondents") seeking court
review of actions taken by the prison disciplinary board, prison
warden, and department commissioner.  Due process violations resulting
therefrom were also alleged.  The trial court granted respondents'
motion for dismissal for improper venue and petitioner has appealed. 
On appeal, a single issue was presented for our review: whether the
trial court erred in granting respondents' motion to dismiss for
improper venue.  For reasons state hereinafter, we reverse the
judgment of the trial court and remand.

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

BRIAN KEITH FEATHER
vs.
DOLLY DEKRAFFT FEATHER

Court:TCA

Attorneys:

Clinton S. Swafford, SWAFFORD, PETERS & PRIEST, Winchester, Tennessee
Attorney for Plaintiff/Appellant.

Lucinda E. Smith, DODSON, PARKER & BEHM, Nashville, Tennessee
Attorney for Plaintiff/Appellee.
                          
Judge:FARMER

First Paragraph:

This somewhat protracted litigation began in August 1993 when Brian
Keith Feather (Husband) filed for divorce from Dolly deKrafft Feather
(Wife).  A divorce decree was entered by the chancery court in
September 1994, which, inter alia, dissolved the fifteen year marriage
of the parties and determined custody of their four minor children. 
Separate orders pertaining to the case were entered by the trial court
in August and October, 1995, respectively.  Both parties appealed
therefrom, but this Court in April 1996, determined that the parties'
respective appeals were from a nonfinal judgment.  Litigation
thereafter continued due to the parties' filings of various petitions
for contempt, to rehear and to modify custody.  After additional
hearings, the trial court entered its final judgment in December 1996
from which both parties have appealed.  The primary issues before us
concern the trial court's decisions regarding child custody and
classification and division of the marital estate.  For the reasons
hereinafter stated, we affirm as modified.

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

JOSEPH ANTHONY GANNON and   
GLORIA C. GANNON
vs.
ROBERT KOCH and DEBORAH KOCH

Court:TCA

Attorneys:

Brad W. Hornsby
BULLOCK, FLY & MCFARLAND
301 N. Spring Street
P.O. Box 398
Murfreesboro, TN 37133-0398
ATTORNEY FOR PLAINTIFFS/APPELLEES

Robert A. Maness
MARKS, SHELL, MANESS & MARKS
114 S. 2nd Street
P.O. Box 1149
Clarksville, TN 37041-1149
ATTORNEYS FOR DEFENDANTS/APPELLANTS
                          
Judge:TODD

First Paragraph:

The defendants, Robert and Deborah Koch, have appealed from a non jury
judgment that plaintiffs, Joseph and Gloria Gannon, have a private
easement from their land across the land of defendants for access to
the public way.

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

LINDA LEE HOLLINGSWORTH
vs.
JAMES DAVID HOLLINGSWORTH

Court:TCA

Attorneys:

Rose Palermo, BPR #3330
P.O. Box 121857
Nashville, TN 37212
ATTORNEY FOR PLAINTIFF/COUNTER-DEFENDANT/APPELLEE

Lucinda E. Smith, BPR #5056
DODSON, PARKER & BEHM, P.C.
306 Gay Street, Suite 400
P.O. Box 198066
Nashville, TN 37219-8066
ATTORNEY FOR DEFENDANT/COUNTER-PLAINTIFF/APPELLANT
                          
Judge:TODD

First Paragraph:

In this divorce case, the defendant-counter claimant husband has
appealed from the judgment of the Trial Court dismissing the husband's
counterclaim; granting the wife a divorce on grounds of inappropriate
marital conduct, $750 per month alimony until her death or remarriage,
and $10,000.00 attorneys fees; and dividing the marital estate.

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

JAMES B. OLIVER
vs.
HARRIET C. UPTON

Court:TCA

Attorneys: 

RICHARD DANCE
DANCE, DANCE & LANE
Nashville, Tennessee
Attorney for Appellant

DONALD J. SERKIN
Nashville, Tennessee
Attorney for Appellee
                         
Judge:HIGHERS

First Paragraph:

Defendant Harriet C. Upton, now known as Harriet Cathey, appeals the
trial court's final judgment awarding Plaintiff/Appellee James B.
Oliver the sum of $15,225.66, continuing in effect the lis pendens
filed against the subject property pending Cathey's satisfaction of
the judgment, denying Cathey's request for attorney's fees, and
assessing forty percent (40%) of the costs against Cathey.  We affirm
the judgment in part (with modifications), reverse in part, and remand
for further proceedings.

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

PATTY M. RICHARDS
vs.
O'CONNOR MANAGEMENT,    
INCORPORATED and RUSS   
HACKETT

Court:TCA

Attorneys:

James R. Tomkins, GLASGOW & VEAZEY, Nashville, Tennessee
Attorney for Plaintiff/Appellant.

M. Bradley Gilmore,
Christina Norris,
PARKER, LAWRENCE, CANTRELL & DEAN, Nashville, Tennessee
Attorneys for Defendants/Appellees.
                          
Judge:FARMER

First Paragraph:

Plaintiff Patty M. Richards appeals the trial court's order granting
the motion for summary judgment filed by Defendants/Appellees O'Connor
Management, Inc., and Russ Hackett.  In entering summary judgment in
favor of the Defendants, the trial court dismissed Richards' claims
for outrageous conduct and false imprisonment.  We affirm in part,
reverse in part, and remand for further proceedings.

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

STATE OF TENNESSEE
vs.
BERRY BOWLS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:               FOR THE APPELLEE:

                    
A.C. WHARTON                    JOHN KNOX WALKUP
Public Defender                 Attorney General & Reporter

EDWARD G. THOMPSON              KENNETH RUCKER
Asst. Public Defender           Asst. Attorney General
201 Poplar, Suite 201           425 Fifth Ave. North        
Memphis, TN 38103               Nashville, TN  37243-0493
     (On Appeal)                
                                JOHN W. PIEROTTI
TERESA JONES                    District Attorney General
Asst. Public Defender
     (At the Hearing)           PERRY HAYES
                                Asst. District Attorney General
                                201 Poplar, Suite 301
                                Memphis, TN 38103                         

Judge:PEAY

First Paragraph:

The defendant was indicted on February 15, 1996, for the aggravated
assault of his girlfriend, Jerlean Irvin.  On August 26, 1996, he pled
guilty to simple assault and agreed to a sentence of eleven months,
twenty-nine days.  He also agreed to pay a fifty dollar ($50) fine. 
Following a sentencing hearing, the trial court ordered the defendant
to serve his sentence in the Shelby County Correction Center.  The
defendant now appeals and argues that the trial court erred by not
suspending his sentence.

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

STATE OF TENNESSEE
vs.
KELVIN WADE CLOYD

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

H. Randolph Fallin          John Knox Walkup
Attorney at Law             Attorney General & Reporter 
303 West Main Street
Mountain City, TN 37683     Clinton J. Morgan
                            Counsel for the State
                            425 Fifth Avenue North
                            2d Floor, Cordell Hull Building
                            Nashville, TN 37243-0493

                            David E. Crockett
                            District Attorney General

                            Joe C. Crumley and
                            Michael LaGuardia
                            Asst District Attorneys General
                            P.O. Box 38
                            Jonesborough, TN 37659
                          

Judge:SUMMERS

First Paragraph:

Kelvin Wade Cloyd, the appellant, was convicted of two counts of
vehicular homicide and possession of a controlled substance in the
Washington County Criminal Court.   The issue on appeal is whether the
evidence is sufficient to sustain the jury's verdict on the homicide
counts.  The judgment of the trial court is affirmed.

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

STATE OF TENNESSEE
vs.
MICHAEL DAVENPORT

Court:TCCA

Attorneys:

FOR THE APPELLEE:           FOR THE APPELLANT:

JAMES P. SMITH, JR.         JOHN KNOX WALKUP
300 Thurman Avenue          Attorney General and Reporter
Crossville, TN 38555
                            TIMOTHY F. BEHAN
                            Assistant Attorney General
                            425 Fifth Avenue, North
                            Nashville, TN 37243-0493

                            BILL GIBSON
                            District Attorney General

                            BEN FANN
                            Assistant District Attorney
                            145 South Jefferson Street
                            Cookeville, TN 38501
                          

Judge:SMITH

First Paragraph:

Appellee Michael Davenport was indicted on June 13, 1992 for attempted
first degree murder, aggravated assault, and two counts of reckless
endangerment.  The prosecution, on its own motion, asked that the
aggravated assault charge be dismissed, and the trial court did so on
November 19, 1992.  On November 20, 1992, Appellee was convicted by a
jury in the Cumberland County Criminal Court of aggravated assault. 
As a Range I standard offender, Appellee was sentenced to five years
confinement with the Tennessee Department of Correction.  This Court
affirmed Appellee's conviction.  State v. Michael Davenport, C.C.A.
No. 03C01-9310-CR-00342, Cumberland County (Tenn. Crim. App.,
Knoxville, December 21, 1994).  On January 28, 1997, Appellee filed a
petition for writ of habeas corpus and/or post-conviction relief,
relying upon the Tennessee Supreme Court's decision in State v.
Trusty, 919 S.W.2d 305 (Tenn. 1996).  After hearing the arguments of
counsel, the trial court granted Appellee's petition for writ of
habeas corpus in light of the Trusty decision.  The State presents the
following issue for our consideration on this appeal:  whether the
trial court erred in granting Appellee's petition for writ of habeas
corpus.

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

WILLIE L. HICKS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

GERALD STANLEY GREEN            JOHN KNOX WALKUP
147 Jefferson Ave., Ste 115     Attorney General & Reporter
Memphis, TN 38103           

                                SANDY C. PATRICK
                                Assistant Attorney General
                                Criminal Justice Division
                                2nd Floor Cordell Hull Building
                                425 Fifth Ave. North
                                Nashville, TN 37243-0943    

                                H. GREELEY WELLS
                                District Attorney General   
                
                                BARRY STAUBUS
                                Asst District Attorney General
                                P.O. Box 526
                                Blountville, TN 37617                         

Judge:WITT

First Paragraph:

The petitioner, Willie L. Hicks, appeals pursuant to Rule 3, Tennessee
Rules of Criminal Procedure,  from the Sullivan County Criminal
Court's denial of post-conviction relief.  The petitioner pleaded
guilty in 1994 of the first-degree murder of Yolanda Riley and the
second-degree murder of her sister, Jennifer Riley.  In accordance
with the plea agreement, he received a life sentence with the
possibility of parole in the first-degree murder conviction and a
consecutive sentence of fifteen years for second-degree murder.  On
March 27, 1996, retained counsel filed a timely petition for
post-conviction relief alleging that the attorneys who represented the
petitioner during the plea bargaining and the submission of the plea
were ineffective and that the guilty plea was entered involuntarily. 
After an evidentiary hearing, the post-conviction judge  entered a
thorough and detailed memorandum order finding that Hicks had received
effective assistance of counsel and that the guilty pleas were entered
knowingly and voluntarily.  Therefore, the lower court denied Hicks's
petition for post-conviction relief.

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

STATE OF TENNESSEE
vs.
KEITH A. JACKSON

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:


CHARLES E. WALDMAN              JOHN KNOX WALKUP
147 Jefferson Ave.              Attorney General & Reporter
Suite 1102
Memphis, TN 38103               GEORGIA BLYTHE FELNER
                                Counsel for the State
                                John Sevier Building                                    
                                425 Fifth Ave. North
                                Nashville, TN  37243-0493
                
                                JOHN W. PIEROTTI
                                District Attorney General

                                LEE COFFEE
                                Asst. District Attorney General
                                201 Poplar, Suite 301
                                Memphis, TN 38103
                                                          

Judge:PEAY

First Paragraph:

The defendant was indicted in January 1996 on charges of possession
with intent to sell an amount of marijuana in excess of ten pounds and
possession with intent to deliver marijuana in the same amount.  On
November 18, 1996, he pled guilty to possession with intent to sell an
amount of marijuana under ten pounds, a Class E felony.  After a
hearing, he was sentenced to one year in the county workhouse and was
fined twenty-five hundred ($2,500) dollars.

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

STATE OF TENNESSEE
vs.
DENNIE RAY LODEN

Court:TCCA

Attorneys:

For the Appellant:          For the Appellee:

Dennie Loden, Pro Se        John Knox Walkup 
104 Davis Hollow Road       Attorney General of Tennessee
Kingston, TN 37763          and
                            Michael J. Fahey, II
                            Asst Attorney General of TN                     
                            450 James Robertson Parkway     
                            Nashville, TN 37243-0493

                            Charles E. Hawk
                            District Attorney General
                            and
                            Frank A. Harvey
                            Asst District Attorney General
                            P.O. Box 703
                            Kingston, TN 37763                          

Judge:Tipton

First Paragraph:

The defendant, Dennie Ray Loden, appeals as of right from the judgment
of the Roane County Criminal Court declaring him to be an Habitual
Motor Vehicle Offender (HMVO) who is barred from driving.  He contends
that res judicata barred the trial court from declaring such status
after a previous HMVO petition based upon the same predicate
convictions had been dismissed.  We affirm the trial court.

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

STATE OF TENNESSEE
vs.
ANTHONY EUGENE MOORE

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

Leslie M. Jeffress          John Knox Walkup
Attorney at Law             Attorney General & Reporter
1776 Riverview Tower
900 S. Gay Street           Elizabeth B. Marney
Knoxville, TN 37902         Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN 37243-0493
    
                            Randall E. Nichols
                            District Attorney General

                            Leon Franks
                            Asst District Attorney General
                            City-County Building
                            Knoxville, TN 37902                          

Judge:SUMMERS

First Paragraph:

In December 1994, Anthony Eugene Moore pled guilty to the sale of less
than one-half gram of cocaine and to possession of more than one-half
gram of cocaine with the intent to sell.  He was sentenced to eight
years for intent to sell and to three years for the sale of less than
one-half gram, with the sentences to run consecutively.   After
serving nine months in jail, the appellant was released on the
Community Alternatives to Prison Program (CAPP).   Once released, the
appellant violated the conditions of his probation, and on January 5,
1996, he was arrested.  His probation violations were as follows: rule
(3), failure to make a full and truthful report to his case manager;
rule (8), failure to pay court costs; rule (9), failure to perform
community service; rule (10), failure to pay community corrections
fees; and rule (14), failure to report.

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

SHERMAN SANDERS,                
also known as NEILTON E. SANDERS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

Charles P. Roney                    John Knox Walkup
Attorney at Law                     Attorney General & Reporter
P. O. Box 542                       425 Fifth Avenue, North
Union City, TN  38281-0542          Nashville, TN  37243-0493

                                    Janis L. Turner
                                    Counsel for the State
                                    425 Fifth Avenue, North
                                    Nashville, TN  37243-0493

                                    Thomas A. Thomas
                                    District Attorney General
                                    P. O. Box 218
                                    Union City, TN  38261-0218

                                    James T. Cannon
                                    Asst District Attorney General
                                    P. O. Box 218
                                    Union City, TN  38261-0218
                         

Judge:Jones

First Paragraph:

The appellant, Sherman Sanders, also known as Neilton E. Sanders
(petitioner), appeals as of right from a judgment of the trial court
dismissing his post conviction action following an evidentiary
hearing.  The trial court found the petitioner was afforded the
effective assistance guaranteed by the United States and Tennessee
Constitutions; and pleas of guilty entered by the petitioner were
voluntarily, understandingly, and intelligently entered.  In this
court, the petitioner contends the evidence contained in the record
preponderates against the trial court's findings of fact.  After a
thorough review of the record, the briefs submitted by the parties,
and the law governing the issues presented for review, it is the
opinion of this court that the judgment of the trial court should be
affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals. 
The evidence clearly does not preponderate against the trial court's
findings of fact.

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

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