TBALink Opinion-Flash

April 30, 1998 -- Volume #4 -- Number #070

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
00-New Opinons From TSC-Workers Comp Panel
06-New Opinons From TCA
09-New Opinons From TCCA

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George Dean
TBALink Chief Editor


ELIZABETH BRIGHT            
and THOMAS C. BRIGHT, III   
vs.
SPAGHETTI WAREHOUSE, INC.

Court:TCA

Attorneys:

ROGER W. DICKSON OF CHATTANOOGA FOR APPELLANT

F. FERBER TRACY OF CHATTANOOGA FOR APPELLEE
                          
Judge:Goddard

First Paragraph:

Elizabeth Bright and Thomas C. Bright, III, appeal the dismissal of
their case from the Circuit Court of Hamilton County.  The Brights
filed their lawsuit on August 11, 1995, claiming, inter alia, that
Spaghetti Warehouse, Inc., had fraudulently induced them to form a
corporation and purchase a Spaghetti Warehouse franchise.  The Brights
requested relief in the form of damages not to exceed $2.5 million,
the trebling of actual damages in accordance with the Texas Deceptive
Trade Practices - Consumer Protection Act, and attorney fees plus
court costs and costs of collection.

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

DEBBY W. CALKINS
vs.
JAMES C. CALKINS

Court:TCA

Attorneys:

Stephen K. Barrett, Knoxville, for Appellant.

William A. Mynatt, Jr., Knoxville, for Appellee.
                          
Judge:INMAN

First Paragraph:

A final judgment of divorce was entered in Louisiana in June 1993,
which, inter alia, awarded the plaintiff custody of the children and
$1,050.00 monthly child support.

URL:http://www.tba.org/tba_files/TCA/calkins_ca3.WP6
Opinion-Flash

DELPHIA M. GREENMAN
vs.
BYRON HUTCHINS

Court:TCA

Attorneys: 

CHRISTOPHER VAN RIPER, Stuart & Van Riper, Clinton, for Appellant.

PAUL E. DUNN, CANDIS D. LASLEY, Dunn, MacDonald & Coleman, Knoxville,
and ROGER L. RIDENOUR, Ridenour, Ridenour & Fox, Clinton, for
Appellee.
                         
Judge:INMAN

First Paragraph:

In this case, we are asked to review the propriety of the action of
the trial court in directing a verdict in favor of the defendant,
Byron Hutchins.  The plaintiff, Delphia Greenman, alleged in her
complaint that the defendant, Byron Hutchins, was the driver of a
truck in which she was a passenger.  She further alleged that as a
result of his negligence the truck was involved in an accident in
which she was injured.

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

FORTUNEE HOFFMAN
vs.
BARRY LYNN HOFFMAN  

Court:TCA

Attorneys:

DAVID E. CAYWOOD and DARRELL D. BLANTON OF MEMPHIS FOR APPELLANT

WILLIAM H. HORTON OF CHATTANOOGA FOR APPELLEE
                        
Judge:Goddard

First Paragraph:

Fortunee Hoffman and Barry Lynn Hoffman both appeal a divorce judgment
rendered by the Hamilton County Circuit Court.

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

MARVIN LEE SPENCER
vs.
TIM HUTCHISON, Sheriff                              
and KNOX COUNTY, TENNESSEE

Court:TCA

Attorneys: 

SAM G. SMITH, JR., OF KNOXVILLE FOR APPELLANT

WENDALL HALL, Deputy Law Director, OF KNOXVILLE FOR APPELLEES
                         
Judge:Goddard

First Paragraph:

Appellant Marvin Lee Spencer appeals dismissal of his suit against
Appellees Tim Hutchison, Sheriff of Knox County, and Knox County,
Tennessee.  His complaint alleges that while incarcerated in a Knox
County penal institution he suffered injuries by reason of the
negligence of the Appellees.

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

IN RE:  THE ESTATE OF       
        HENRY M. SWANAY

Court:TCA

Attorneys:

Judith Fain, Johnson City, for the Appellant.

John S. Taylor, Johnson City, for the Appellee.
                          
Judge:INMAN

First Paragraph:

The last will and testament of Henry M. Swanay, who died September 28,
1995, was propounded for probate on February 23, 1996.  He devised and
bequeathed his entire estate to his daughter, Carrie Swanay, whom he
named Executrix.

URL:http://www.tba.org/tba_files/TCA/swanay_ca3.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
SCOTT ANDERSON

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

LAURA RULE HENDRICKS                JOHN KNOX WALKUP
Eldridge, Irvine & Hendricks        Attorney General & Reporter
606 West Main Street, Suite 350
P.O. Box 84                         GEORGIA BLYTHE FELNER
Knoxville, TN 37901-0084            Assistant Attorney General
                                    Cordell Hull Building, 2nd Floor
RAYMOND MACK GARNER                 425 Fifth Avenue North
District Public Defender            Nashville, TN 37243-0493
                            
NATALEE HURLEY                      MICHAEL L. FLYNN
Assistant Public Defender           District Attorney General
415 High Street 
Maryville, TN 37804                 PHILIP MORTON
                                    Asst District Attorney General
                                    363 Court Street
                                    Maryville, TN 37804
                                                      

Judge:CLARK

First Paragraph:

The appellant, Scott Anderson, appeals as of right from the revocation
of his probation by the Blount County Circuit Court.  He argues that
the trial court abused its discretion by permitting hearsay testimony
during his revocation hearing and by failing to make adequate
findings. We affirm the judgment of the trial court.

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

JAMES H. CRAWFORD
vs.
STATE OF TENNESSEE

Court:TCCA
                        
Judge:JONES

First Paragraph:

This matter is before the Court upon the state's motion to affirm the
trial court judgment by order under Rule 20, Rules of the Court of
Criminal Appeals.  This case represents an appeal from the trial
court's dismissal of the petitioner's petition for writ of habeas
corpus.  The record has been filed and the petitioner has submitted
his appellate brief.

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

STATE OF TENNESSEE
vs.
RICKY DAVIS

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

MARK E. STEPHENS                JOHN KNOX WALKUP
District Public Defender         Attorney General & Reporter
                            
PAULA R. VOSS                   CLINTON J. MORGAN
DAVID M. GALL                   Assistant Attorney General
Assistant Public Defenders      Cordell Hull Building, 2nd Floor
1209 Euclid Avenue              425 Fifth Avenue North
Knoxville, TN 37921             Nashville, TN 37243-0493

                                RANDALL E. NICHOLS
                                District Attorney General

                                ZANE SCARLETT
                                Asst District Attorney General
                                City-County Building
                                Knoxville, TN 37902
                          

Judge:CLARK

First Paragraph:

The appellant, Ricky Davis, appeals as of right from the revocation of
his probation, alleging that the trial court abused its discretion by
revoking his probation for reasons not set forth in the violation
warrant and not articulated in the record.  We affirm the decision of
the trial court.

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

STATE OF TENNESSEE
vs.
FREDERICK OTTITUS EDWARDS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:               FOR THE APPELLEE:


JOHN E. HERBISON                JOHN KNOX WALKUP
2016 Eighth Ave., South         Attorney General & Reporter
Nashville, TN 37204
     (On Appeal)                RUTH A. THOMPSON
                                Counsel for the State
JOSEPH P. ATNIP                 425 Fifth Ave., North
Public Defender                 Cordell Hull Bldg., Second Fl.
P.O. Box 734                    Nashville, TN  37243-0493
Dresden, TN 38225               
     (At Trial)                 THOMAS A. THOMAS
                                District Attorney General
                            
                                JIM CANNON
                                Asst. District Attorney General
                                P.O. Box 218
                                Union City, TN 38261                         

Judge:CLARK

First Paragraph:

A Weakley County jury convicted the defendant of four counts of sale
of less than 0.5 grams of cocaine.  The trial court sentenced him to
serve six years on each conviction and ordered the sentences to run
concurrently.  The defendant was also fined two thousand dollars
($2000).  In this appeal as of right, the defendant challenges the
sufficiency of the evidence for one of his convictions, the
uncorroborated accomplice testimony, and the length of his sentences. 
After a review of the record and applicable law, we reverse and
dismiss one of the defendant's convictions for selling cocaine, but
affirm his remaining convictions and the sentences ordered for each of
those convictions.

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

STATE OF TENNESSEE
vs.
WARREN TYRONE FOWLER

Court:TCCA

Attorneys: 

FOR THE APPELLANT:               FOR THE APPELLEE:

EDWARD C. MILLER                 JOHN KNOX WALKUP
P.O. Box 416                     Attorney General & Reporter
Dandridge, TN 37725-0416

                                 ELLEN H. POLLACK
                                 Assistant Attorney General
                                 425 Fifth Avenue North
                                 Nashville, TN 37243-0493

                                 JAMES L. GASS
                                 Assistant Dist. Attorney General
                                 P.O. Box 70
                                 Dandridge, TN 37725-0070
                         
Judge:CLARK

First Paragraph:

A Jefferson County Circuit Court jury convicted the defendant, Warren
Tyrone Fowler, of felony vandalism, two counts of aggravated assault,
and felony evading arrest.  He appeals these convictions pursuant to
Tennessee Rule of Appellate Procedure 3.  On appeal, he claims (1) the
evidence is insufficient to convict him of any of the offenses and (2)
the trial court erred in failing to instruct the jury on the lesser
included offense of facilitation of each of the felony offenses. 
After hearing the parties' arguments and reviewing the record, the
briefs, and the applicable law, we affirm the trial court's judgment.

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

STATE OF TENNESSEE
vs.
JON DOUGLAS HALL

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

JESSE H. FORD, III          JOHN KNOX WALKUP
CLAYTON F. MAYO             Attorney General and Reporter
618 N. Highland         
Jackson, TN 38301           KENNETH W. RUCKER
                            Asst. Attorney General
                            425 Fifth Ave. N.
                            Cordell Hull Bldg., 2nd Fl.
                            Nashville, TN 37243-0493
                    
                            JAMES G. WOODALL
                            District Attorney General       

                            ALFRED LYNN EARLS
                            Asst. District Attorney General
                            Lowell Thomas State Office Bldg.
                            Jackson, TN 38301                          

Judge:PEAY

First Paragraph:

The defendant was indicted for the premeditated first-degree murder of
his estranged wife, Billie Jo Hall.  Upon the defendant's motion, the
case was transferred from Henderson County to Madison County.  On
February 5, 1997, the jury returned a guilty verdict on the charge of
first-degree murder.  After a sentencing hearing held that same day,
the jury sentenced the defendant to death.  The jury found that the
murder was especially heinous, atrocious, or cruel in that it involved
torture or serious physical abuse beyond that necessary to produce
death.  T.C.A. S 39-13-204(i)(5).

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

GARY S. MAYES
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

 FOR THE APPELLANT:             FOR THE APPELLEE:

Rex A. Dale                     John Knox Walkup
Attorney at Law                 Attorney General & Reporter 
208 Bank Street
Lenoir City, TN 37771           Ellen H. Pollack
                                Assistant Attorney General
                                425 Fifth Avenue North
                                Nashville, TN 37243-0493

                                Charles Hawk    
                                District Attorney General

                                Frank Harvey
                                Asst District Attorney General
                                P.O. Box 703
                                Kingston, TN 37763-0703                          

Judge:SUMMERS

First Paragraph:

The petitioner, Gary S. Mayes, filed a petition for habeas corpus
and/or post-conviction relief in the criminal court at Loudon County. 
The court denied the petition as barred by the statute of limitations.
 The petitioner appealed.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
JAMES MCCLENTON

Court:TCCA
                      
Judge:JONES

First Paragraph:

This matter is before the Court upon the state's motion to dismiss. 
Based upon our review of the entire record before the Court, including
the appellant's response to the state's motion, we affirm the judgment
of the trial court pursuant to Rule 20, Rules of the Court of Criminal
Appeals.

URL:http://www.tba.org/tba_files/TCCA/mcclent1_ord.WP6
Opinion-Flash

HARRY MCLEMORE, JR.
vs.
ALTON HESSON, WARDEN

Court:TCCA
                          
Judge:JONES

First Paragraph:

This case represents an appeal from the denial of the petitioner's
petition for writ of habeas corpus.  The petitioner was originally
indicted on one count of rape in May 1965, and he was subsequently
convicted of the same and sentenced to life imprisonment.  In July
1997, the petitioner filed a petition for a writ of habeas corpus
challenging the sufficiency of the indictment entered against him. 
The trial court denied relief.

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

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