TBALink Opinion-Flash

July 9, 1998 -- Volume #4 -- Number #104

What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.

This Issue (IN THIS ORDER):
03-New Opinons From TSC
00-New Opinons From TSC-Rules
02-New Opinons From TSC-Workers Comp Panel
20-New Opinons From TCA
15-New Opinons From TCCA

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Editor-in-Chief, TBALink


STATE OF TENNESSEE
vs.
HOWARD E. KING

Court:TSC

Attorneys:     

For Appellant:					For Appellee:
A. C. WHARTON, JR.				JOHN KNOX WALKUP   
Public Defender      			Attorney General and Reporter

WALKER GWINN					MICHAEL E. MOORE
Assistant Public Defender		Solicitor General
Memphis, Tennessee
								LINDA A. ROSS
								Associate Solicitor General
								Nashville, Tennessee

								WILLIAM L. GIBBONS
								District Attorney General

								DAVID C. HENRY 
								Assistant District Attorney
								Memphis, Tennessee                     

Judge: BIRCH

First Paragraph:

We granted permission to appeal under Tenn. R. App. P. 11 to Howard E.
King, the appellant, in order to address the constitutionality of
Tenn. Code Ann. S 40-35-201(b)(2) (Supp. 1994), which requires trial
courts to instruct juries regarding parole and release eligibility
when a jury instruction on the sentencing range is requested by either
party.  Because we find that the statute does not violate the
separation of powers doctrine or deprive the appellant of his due
process right to a fair trial, we conclude that the statute, as
applied under the circumstances of this case, is constitutional.

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

IN RE:  PETITION OF THE TENNESSEE COMMISSION ON CONTINUING LEGAL
EDUCATION AND SPECIALIZATION TO AMEND TENNESSEE SUPREME COURT RULE 21

Court:TSC

First Paragraph:

The Tennessee Commission on Continuing Legal Education and
Specialization has petitioned the Court to amend Supreme Court Rule 21
to modify and expand various provisions relative to the duties of the
Commission and to the methods by which CLE credit may be earned.

URL:http://www.tba.org/tba_files/TSC/r21oa_ord.WP6
Opinion-Flash

WHITEHAVEN COMMUNITY BAPTIST CHURCH, 
FORMERLY KNOWN AS FAIRWAY
MISSIONARY BAPTIST CHURCH, AND T.L. JAMES, SR. 
vs.
ALCUS HOLLOWAY AND GENEVA HOLLOWAY

Court:TSC

Attorneys:   

FOR APPELLANTS:				FOR APPELLEES:
Charles R. Curbo			Herschel L. Rosenberg
Memphis						Memphis
                       
Judge: HOLDER

First Paragraph:

We granted this appeal to determine whether summary judgment was
properly granted in this case involving claims for recision of
contract and unjust enrichment.  The Court of Appeals affirmed the
trial court's order granting the defendants' motion for summary
judgment on both issues.  Upon review, we affirm the appellate court
as modified.

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

JOHNNY T. BROWN
vs.
STATE OF TENNESSEE

Court:TSC - Workers Comp Panel

Attorneys:  

For the Appellant:					For the Appellee:
Mary G. Moody						Larry R. Dorning
Assistant Attorney General			403 E. Main Street
426 Fifth Avenue North				Hohenwald, Tennessee 38462-1541 
Second Floor, Cordell Hull Bldg.
Nashville, Tennessee 37243			Thomas F. Bloom
									500 Church Street, 5th Floor
									Nashville, Tennessee 37219                        

Judge: CHILDERS

First Paragraph:

In this case the Commissioner of Claims found that the
claimant/appellee was entitled to total disability payments from
August 9, 1994 through November 9, 1994, in the amount of $3,617.57. 
The Commissioner also found that the claimant sustained a permanent
partial impairment of 50% to the body as a whole in the amount of
$55,050.  Further, the Commissioner found that the State was not
liable for payment of any medical expenses incurred for the services
of Jackson-Madison County General associated with the claimant's
August 9, 1994 surgery or for any deposition fees or medical bills of
Dr. George Copple, Dr. Ray Hester or Dr. Joseph P. Rowland. 
Attorney's fees in the amount of $11,733.51 (20%) were awarded to the
claimant.  Because the evidence preponderates in favor of the decision
of the Claims Commissioner, we affirm.

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

PEGGY S. MALLICOAT
vs.
C.R. DANIELS, INC., and	
NORTHBROOK NATIONAL	INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:  

For the Appellant:						For the Appellees:
James L. Milligan, Jr.					Paul D. Hogan
Law Offices of James L. Milligan, Jr.	Hogan & Hogan
  and Associates						620 West Hill Avenue
607 Market Street, 10th Floor			Knoxville, TN  37902
Knoxville, TN  37902
Judge:

First Paragraph:

Review of the findings of fact made by the trial court is de novo upon
the record of the trial court, accompanied by a presumption of the
correctness of the findings, unless the preponderance of the evidence
is otherwise.  Tenn. Code Ann.  S 50-6-225(e)(2); Stone v. City of
McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995). The application of this
standard requires this Court to weigh in more depth the factual
findings and conclusions of the trial court in a workers' compensation
case.  See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456
(Tenn. 1988).

URL:http://www.tba.org/tba_files/TSC_WCP/mallico2_wc.WP6
Opinion-Flash

WILLIAM MICHAEL ANDERTON
vs.
EVELYN ADELE MORGAN ANDERTON

	OPINION ON PETITION FOR REHEARING

Court:TCA

First Paragraph:

Mr. Anderton has filed a Tenn. R. App. P. 39 petition for rehearing
and a Tenn. R. App. P. 14 motion to consider post-judgment facts with
regard to his actual gross income in 1996 and 1997.  Ms. Anderton has
filed a response to these motions.  We have determined that Mr.
Anderton's motions should be granted.

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

ELIZABETH DAVIS BLACK
vs.
MICHAEL WALTER BLACK

Court:TCA

Attorneys:  

David W. Noblitt, Esq., BPR #006685
LEITNER, WILLIAMS, DOOLEY & NAPOLITAN, PLLC
Pioneer Building, Third Floor
Chattanooga, Tennessee 37402
ATTORNEY FOR PLAINTIFF/APPELLANT

Charles G. Jenkins, Jr., BPR #014909
JENKINS & FEATHERSTON, P.C.
102 Betsy Pack Drive
Jasper, Tennessee 37347
ATTORNEY FOR DEFENDANT/APPELLEE                        

Judge: TODD

First Paragraph:

This appeal involves post-divorce petitions for change of custody and
child support.  The mother, Elizabeth Davis Black (Tepas), has
appealed from the judgment of the Trial Court transferring custody of
the eleven year old daughter, Chelsea, from the mother to the father,
Michael Walter Black, and relieving him of the obligation of child
support while the child was in the custody of the father by agreement
of the parties.

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

BOILER SUPPLY COMPANY, INC.
vs.
LUNN REAL ESTATE INVESTMENTS,INC

Court:TCA

Attorneys:   

For Plaintiff/Appellant:				For Defendant/Appellee:
Charles Patrick Flynn					Stephen H. Price
Gerald D. Neenan						FARRIS, WARFIELD & KANADAY
FLYNN AND NEENAN						Nashville, Tennessee
Nashville, Tennessee

John B. Link, III
Nashville, Tennessee
                       
Judge: KOCH

First Paragraph:

This appeal involves a dispute over the interpretation of a provision
allocating the responsibility for paying legal expenses in the event
of a default or breach of two leases.  The lessee filed suit against
the lessor in the Chancery Court for Davidson County seeking a
declaration that the leases had expired and requesting its attorney's
fees in accordance with the provisions of the lease agreements.  The
trial court granted the lessee's motion for summary judgment and
declared that the leases had expired but denied the lessee's claim for
legal expenses.  The lessee has appealed.  We have determined that the
trial court correctly interpreted the lease agreements and, therefore,
affirm the summary judgment.

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

DANNIE JOE CHRISTMAS and 
SHARON CHRISTMAS
vs.
RALPH MOORE and LINDA MOORE

Court:TCA

Attorneys: 

For the Plaintiffs/Appellees:		For the Defendants/Appellants:
Greg Leffew        					Linda Moore & Ralph Moore, Pro Se 
Rockwood, Tennessee  				Harriman, Tennessee                            

Judge: LILLARD

First Paragraph:

This case involves the possession of real estate after foreclosure
proceedings.  After a bench trial, the trial court determined that
Appellees were entitled to possession of the real estate in question. 
We affirm.

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

JAMES E. COLLINS
vs.
TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

Attorneys:  

James E. Collins, #83465
R.M.S.I. Unit 6-A-226
7475 Cockrill Bend Road
Nashville, Tennessee 37209-1010
PRO SE/ PLAINTIFF/APPELLANT

John R. Miles, #013346
Cordell Hull Building, Second Floor
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
ATTORNEY FOR DEFENDANT /APPELLEE                        

Judge: TODD

First Paragraph:

The captioned appellant is a prisoner in the punitive custody of the
Tennessee Department of Correction.  On February 19, 1997, he filed in
the Trial Court a petition for declaratory judgment alleging that on
November 16, 1996, he filed with the Department a petition for a
declaratory order correcting an erroneous entry showing two life
sentences which  have been merged.


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

W. HUDSON CONNERY, JR., ET. AL.
vs.
COLUMBIA/HCA HEALTHCARE	

     WITH CONCURRING OPINION

Court:TCA

Attorneys:  

Robert S. Patterson, #6189
Patricia Head Moskal, #11621
BOULT, CUMMINGS, CONNERS & BERRY, PLC
414 Union Street, Suite 1600
P.O. Box 198063
Nashville Tennessee 37219
ATTORNEYS FOR PLAINTIFFS/APPELLANTS

Paul S. Davidson, #11789 
Charles W. Cook, III, #14274
STOKES & BARTHOLOMEW, P.A.
2800 SunTrust Center
424 Church Street
Nashville Tennessee 37219
ATTORNEYS FOR DEFENDANTS/APPELLEES                        

Judge: TODD

First Paragraph:

Twenty former employees of "HealthTrust," a ____________ sued
HealthTrust and its "successor in interest," Columbia Health Care
Corporation, to recover share of stock (or the value thereof) which
they had purchased with earned bonuses and for the value of shares of
stock due some of the plaintiffs due them upon discharge.  Two of the
plaintiffs nonsuited, leaving eighteen.

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

CONSUMER ADVOCATE DIVISION
VS.
TENNESSEE REGULATORY
AUTHORITY; NASHVILLE GAS COMPANY

Court:TCA

Attorneys:

JOHN KNOX WALKUP
Attorney General & Reporter

L. VINCENT WILLIAMS
Assistant Attorney General
425 Fifth Avenue North
Nashville, Tennessee 37243
	Attorney for Petitioner/Appellant

H. EDWARD PHILLIPS, III
Tennessee Regulatory Authority
460 James Robertson Parkway
Nashville, Tennessee 37243-0505
	Attorney for Respondent/Appellee Tennessee Regulatory Authority

T. G. PAPPAS
JOSEPH F. WELBORN III
2700 First American Center
Nashville, Tennessee 37238

JERRY W. AMOS
P. O. Box 787
Greensboro, North Carolina 27402
	Attorneys for Respondent/Appellee Nashville Gas Company

HENRY WALKER
414 Union Street, Suite 1600
Nashville, Tennessee 37219
	Attorney for Intervening Appellant Associated Valley Industries                          

Judge: CANTRELL

First Paragraph:

his petition under Rule 12, Tenn. R. App. Proc., to review a rate
making order of the Tennessee Regulatory Authority presents a host of
procedural and substantive issues.  We affirm the agency order.


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

JAMES F. COOK, JR.,
d/b/a COOK PROPERTIES
vs.
CONSOLIDATED STORES CORP., BELZ INVESTCO, L.P., URCO, INC., UNION
REALTY CO., LTD., and SOUTH PLAZA CO.

Court:TCA

Attorneys:    

For Plaintiff/Appellant:			For Defendant/Appellee
									Consolidated Stores Corp.:
Hugh C. Howser, Jr.
Kathryn J. Ladd						Karyn C. Bryant
Trabue, Sturdivant & DeWitt			Boult, Cummings, Conners & Berry
Nashville, Tennessee				Nashville, Tennessee

									For Defendants/Appellees Belz,
									URCO, Union Realty, & South Plaza:

									John M. Gillum
									John W. Heacock
									Manier, Herrod, Hollabaugh & Smith
									Nashville, Tennessee                      

Judge: KOCH

First Paragraph:

This appeal involves a dispute over a real estate commission on four
retail properties in Memphis.  After a former client leased these
properties, a real estate broker filed suit in the Chancery Court for
Davidson County seeking a commission from its former client and the
lessors of the four properties.  The trial court granted the former
client's motion for summary judgment and, following a bench trial,
dismissed the broker's claims against the four lessors.  On this
appeal, the broker asserts that the trial court erred by granting his
former client's summary judgment motion and that the evidence
preponderates against the trial court's dismissal of his claims
against the four lessors.  We have determined that the trial court
properly granted the summary judgment motion and that the evidence
does not preponderate against the trial court's judgment in favor of
the four lessors.


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

BENNIE DAY and KAREN DAY
vs.
CITY OF DECHERD, OTIS B. SMITH, JR., MAYOR, HANK WEDDINGTON, BILL VAN
HOOSIER, FRANK GREEN, AND DARYL DONEY, COMMISSIONERS

     WITH CONCURRING OPINION
     
Court:TCA

Attorneys:    

MICHELLE M. BENJAMIN
102 First Avenue, N.W.
P. O. Box 177
Winchester, TN 37398
	Attorney for Petitioners/Appellants

J. RUSSELL FARRAR
DEBORAH R. SOWELL
FARRAR & BATES
211 Seventh Street No., Suite 320
Nashville, Tennessee 37219-1823
	Attorney for Respondents/Appellees
	
Judge: CANTRELL

First Paragraph:

Property owners alleged in a petition for common law certiorari that
the city of Decherd acted arbitrarily and capriciously in refusing to
rezone their property from residential to commercial.  The Chancery
Court of Franklin County dismissed the petition.  We affirm.

URL:http://www.tba.org/tba_files/TCA/daybc_con.WP6
URL:http://www.tba.org/tba_files/TCA/dayb_opn.WP6


CHARLES F. GAULDEN, and Wife,
RUTH S. GAULDEN
vs.
ROBERT L. SCRUGGS, and Wife,                    
JOYCE W. SCRUGGS

Court:TCA

Attorneys: 

ROBERT A. ANDERSON
2021 Richard Jones Road, Suite 350
Nashville, Tennessee 37215
    Attorney for Plaintiffs/Appellants

NADER BAYDOUN
JOHN I. HARRIS III
Suite 2420, Nashville City Center
511 Union Street
Nashville, Tennessee 37219
    Attorneys for Defendants/Appellees                         

Judge: CANTRELL

First Paragraph:

The question in this case is whether a purchaser of mortgaged
property, who pays off the mortgage, takes an assignment of the note
and deed of trust, and subsequently releases the deed of trust, can
then sue the original mortgagee on the note.  The Chancery Court of
Davidson County dismissed the action.  We affirm.

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

GRETCHEN HART
vs.
RONALD RICK HART

Court:TCA

Attorneys: 

J. Russell Heldman, #9989
320 Main Street, Suite 101
Franklin, Tennessee 37064

John J. Hollins, #2452
HOLLINS, WAGSTER & YARBROUGH, P.C.
Suite 2210, SunTrust Center
424 Church Street
Nashville, Tennessee 37219
ATTORNEYS FOR PLAINTIFF/APPELLANT

James G. Martin, III, #3083
FARRIS, WARFIELD & KANADAY, PLC
Eighteenth Floor, SunTrust Center
424 Church Street
Nashville, Tennessee 37219
ATTORNEY FOR DEFENDANT/APPELLEE                         

Judge: TODD

First Paragraph:

This is a post-divorce decree proceeding to adjust the amount of
periodic alimony.  The wife has appealed from the judgment of the
Trial Court increasing the alimony from $1,000 per month to $1,350 per
month.

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

VIRGIL L. HITCHCOCK and 
SHIRLEY R. HITCHCOCK
vs.
ALLEN S. BOYD, JR., M.D., JAMES D. ACKER, M.D., 
and SEMMES-MURPHY CLINIC, INC., 
a Tennessee Professional Corporation

Court:TCA

Attorneys: 
 
For the Plaintiffs/Appellants:      For the Defendants/Appellees:
Al H. Thomas                        Albert C. Harvey 
Ira M. Thomas                       John W. Rodgers   
Memphis, Tennessee                  Memphis, Tennessee                              

Judge:  LILLARD

First Paragraph:

In this medical malpractice case, the plaintiff alleges that counsel
for the defendants committed misconduct during the trial and appeals
the trial court's denial of the plaintiff's motion for a new trial. 
We affirm.

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

K-TESTING LAB, INC.
vs.
ESTATE OF LARRY L. KENNON, 
BRENDA L. KENNON, EXECUTRIX

Court:TCA

Attorneys:  

For the Plaintiff/Appellee:         For the Defendant/Appellant:
Louis R. Lucas                      Warner Hodges, III        
Russell X. Thompson                 Germantown, Tennessee
Memphis, Tennessee                        

Judge: LILLARD

First Paragraph:

At issue in this case is a stock redemption agreement executed by the
owners of a closely held corporation.  The Chancellor issued a
mandatory injunction instructing the holder of the stock certificates
to abide by the stock redemption agreement and turn over the shares to
the corporation, and the holder appealed.  We affirm in part and
reverse in part.

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

IN THE MATTER OF:       
S.M.L., (DOB 12/26/88), 
C.B.L., (DOB 4/14/92),  
D.K.J., (DOB 5/8/93),
    Children under the age of 18

Court:TCA

OPINION ON PETITION FOR REHEARING                         

First Paragraph:

C.L.H. has filed a timely Tenn. R. App. P. 39 petition for rehearing
and a Tenn. R. App. P. 14 motion to consider post-judgment facts.  She
asserts that our original opinion filed on June 12, 1998 misapprehends
material facts with regard to her more recent self-improvement
efforts, and she offers new evidence regarding her educational
attainments and the stability of her living environment.

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

ADOLPH C. LAVIN and JEAN LAVIN,
surviving parents of TROY JAMES 
LAVIN, Deceased, and ADOLPH C.
LAVIN, in his capacity as Administrator
of the estate of TROY JAMES LAVIN,
vs.
ROSS JORDON, SUSAN JORDON,  
and SEAN JORDON

Court:TCA

Attorneys: 

Charles R. Ray, #3188               Vincent E. Wehby, #2288
211 Third Avenue North              501 Union Street, Suite 500
Nashville, Tennessee 37219-8288     Nashville, Tennessee 37219-2305
ATTORNEYS FOR PLAINTIFFS/APPELLANTS

John L. Norris, #6007
HOLLINS, WAGSTER & YARBROUGH, P.C.
Suite 2210, 424 Church Street
SunTrust Center
Nashville, Tennessee 37219
ATTORNEY FOR DEFENDANTS/APPELLEES
                         
Judge: TODD

First Paragraph:

The plaintiff, Adolph C. Lavin and wife, Jean Lavin, surviving parents
of Troy James Lavin, brought this action against Ross and Susan Jordon
and their son, Sean Jordon, for the wrongful death of Troy Lavin, who
was shot and killed by Sean Jordon.  The Trial Judge entered an
interlocutory partial judgment on the pleadings limiting the recovery
from the parents of Sean Jordon to $10,000.00 pursuant to T.C.A. SS
37-10-101, 102 and 103.

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

Lionel L. Lulow and wife, Nancy Lulow
vs.
Earl Poss and Carl Poss

Court:TCA

Attorneys: 

FRANK BUCK
LENA ANN BUCK
124 West Main Street
Smithville, Tennessee 37166
ATTORNEYS FOR THE PLAINTIFFS/APPELLEES

A. VESTER PARSLEY, JR.
111 West Main Street
Smithville, Tennessee 37166
ATTORNEY FOR THE DEFENDANTS/APPELLANTS                         

Judge: BUSSART

First Paragraph:

This is an appeal by defendants/appellants, Earl and Carl Poss, from a
decision of the chancery court in a boundary dispute.  It is the
Posses contention that the chancery court erred when it approved the
survey entered into evidence by the plaintiffs/appellees, Lionel and
Nancy Lulow.

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

CHARLES MONTAGUE
vs.
TENNESSEE DEPARTMENT OF CORRECTIONS

Court:TCA

First Paragraph:

The appellant's second petition for rehearing is denied, and the costs
incident thereto are adjudged against the appellant.

URL:http://www.tba.org/tba_files/TCA/montag3_ord.WP6
Opinion-Flash

ETTA MECHELLE PARKS
vs.
CRAIG DEWAYNE PARK

Court:TCA

Attorneys: 

For Appellant                   For Appellee
JOHNNY V. DUNAWAY               J. STEPHEN HURST
Dunaway Law Office              Rogers, Hurst & Kruskenski
LaFollette, Tennessee           LaFollette, Tennessee
                         
Judge: Susano

First Paragraph:

In this divorce case, the appellant Etta Mechelle Parks argues that
the trial court erred in awarding her former husband, Craig Dewayne
Parks, custody of their two boys, ages seven and almost four.  We do
not find that the evidence preponderates against the trial court's
custody decree.  See Rule 13(d), T.R.A.P.; Hass v. Knighton, 676
S.W.2d 554, 555 (Tenn. 1984).  Accordingly, we cannot say that the
trial court abused its discretion in placing the children's sole
custody with Mr. Parks.  See Grant v. Grant, 286 S.W.2d 349, 350
(Tenn.App. 1954).

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

RAZORBACK MARBLE
MANUFACTURING CO., INC.
vs.
D.D. ROBERTS, ROBERTS CONSTRUCTION COMPANY, NARAN P. PATEL, 
KUSUM N. PATEL, and HERITAGE BANK

Court:TCA

Attorneys:    

RODGER N. BOWMAN
601 North Second Street, Suite 4
Clarksville, Tennessee 37041-1404
    Attorney for Plaintiff/Appellee

LARRY J. WALLACE
118 Franklin Street
Clarksville, TN 37040
    Attorney for Defendants/Appellants                      

Judge: CANTRELL

First Paragraph:

In this construction contract dispute, the Chancery Court of
Montgomery County granted a judgment plus prejudgment interest to
Razorback Marble Manufacturing Company, Inc.   On appeal, Roberts
Construction Company, Inc. and D. D. Roberts, Individually, raise
issues pertaining to the Contractor's Licensing statutes and the
Notice of Non-Payments statute.  Razorback insists that it was due a
larger judgment and a greater award of prejudgment interest.

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

IN THE MATTER OF:
THE ESTATE OF MARY ARDELLE GOWER
WILLIAM STEVEN JONES, Executor of
the Estate of Mary Ardelle Gower
vs.
TYSON ROBERTSON, BESSIE LEWIS,
DANNY GOBBELL, PAT HENKEL and MARILYN WHITTEN

Court:TCA

Attorneys:

JERRY SCOTT
JOHN KEA
Scott & Kea
110 City Center Building
100 East Vine Street
P. O. Box 1216
Murfreesboro, Tennessee  37133-1246
    ATTORNEYS FOR APPELLANT

RANDY HILLHOUSE
Hillhouse & Huddleston
212 Pulaski Street
P. O. Box 787
Lawrenceburg, Tennessee  38464
    ATTORNEY FOR APPELLEES                   

Judge: CAIN

First Paragraph:

Mary Ardelle Gower died on August 11, 1995 in Wayne County, Tennessee
at the age of 73.  Her will was offered for probate by William Steven
Jones, the executor therein named and the sole beneficiary of the
will.

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

WILLIE BACON, JR.
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:
Ardena J. Garth                     Charles W. Burson
District Public Defender            Attorney General of Tennessee
     and                                and             
Donna Robinson Miller               Michael J. Fahey, II
Assistant Public Defender           Asst Attorney General of Tennessee  
Suite 300, 701 Cherry Street        450 James Robertson Parkway     
Chattanooga, TN 37402               Nashville, TN 37243-0493

                                    William H. Cox, III
                                    District Attorney General
                                        and
                                    C. Leland Davis
                                    Asst District Attorney General
                                    City-County Building
                                    Chattanooga, TN 37402                         

Judge: Tipton

First Paragraph:

The petitioner, Willie Bacon, Jr., appeals as of right from the
Hamilton County Criminal Court's denial of post-conviction relief
after an evidentiary hearing.  He contends that he is entitled to
post-conviction relief because the reasonable doubt and malice
instructions given at his trial violated his due process and equal
protection rights and because he received the ineffective assistance
of counsel.  We disagree and affirm the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
OHMAR DESHAWN BRADEN

Court:TCCA

Attorneys:  

For the Appellant:              For the Appellee:

Lionel R. Barrett, Jr.          John Knox Walkup 
Washington Square Two           Attorney General of Tennessee
222 2nd Avenue, North               and
Nashville, TN 37201             Elizabeth B. Marney
                                Asst Attorney General of Tennessee                                          
                                425 Fifth Avenue North      
                                Nashville, TN 37243-0493

                                Victor S. Johnson, III
                                District Attorney General
                                    and
                                Paul DeWitt
                                Assistant District Attorney General
                                Washington Square
                                222 2nd Avenue, North
                                Nashville, TN 37201-1649                        

Judge: Tipton

First Paragraph:

The defendant, Ohmar Deshawn Braden, appeals as of right from his
conviction by a jury in the Davidson County Criminal Court for
reckless homicide, a Class D felony.  He received a three-year
sentence as a Range I, standard offender to be served in the Davidson
County Workhouse.  The defendant presents one issue for review:
whether the evidence was sufficient to support the jury's verdict that
the defendant's conduct in shooting the victim constituted reckless
homicide.  We hold that the evidence was sufficient to support the
conviction for reckless homicide.

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

STATE OF TENNESSEE
vs.
VADA ALLEN BRANCH

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:
G. STEPHEN DAVIS                    JOHN KNOX WALKUP
District Public Defender            Attorney General & Reporter
P.O. Box 742
Dyersburg, TN 38024                 GEORGIA BLYTHE FELNER
                                    Asst. Attorney General
                                    John Sevier Bldg.
                                    425 Fifth Ave., North                                   
                                    Nashville, TN  37243 0493
                
                                    C. PHILLIP BIVENS
                                    District Attorney General
                                    P.O. Box E          
                                    Dyersburg, TN 38024                        

Judge: PEAY

First Paragraph:

The defendant was indicted with (a) possession of cocaine in an amount
over .5 grams with intent to sell or deliver, and (b) possession of
marijuana less than one-half ounce.  Following a bench trial, the
defendant was found guilty of both offenses and sentenced to thirteen
years in the Department of Correction.  In this appeal as of right,
the defendant argues that the evidence is insufficient to support a
conviction for possession of cocaine with intent to sell.  Finding no
merit in the defendant's argument, we affirm.

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

JERRY DWAINE CAMMUSE
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:    

For the Appellant:              For the Appellee:
Terry J. Canady                 John Knox Walkup
Attorney for Appellant          Attorney General and Reporter
211 Printer's Alley Bldg.   
Suite 400                       Elizabeth B. Marney
Nashville, TN  37201            Assistant Attorney General                              
								Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                Victor S. (Torry) Johnson III
                                District Attorney General

                                Rosemary Sexton
                                Asst. District Attorney General
                                Washington Square, Suite 500
                                222-2nd Avenue North
                                Nashville, TN  37201
                      
Judge: Hayes

First Paragraph:

The appellant, Jerry Dwaine Cammuse, appeals the dismissal of his
petition for post-conviction relief by the Davidson County Criminal
Court.  On November 30, 1990, a jury found the appellant guilty of
twenty-two felonies, resulting in an effective sentence of 150 years
imprisonment.  His convictions were affirmed on direct appeal to this
court.  See State v. Cammuse, No. 01C01-9107-CR-00216 (Tenn. Crim.
App. at Nashville, Apr. 29, 1992), perm. to appeal denied, (Tenn.
Sept. 14, 1992).   The appellant filed this pro se petition for
post-conviction relief in April 1995.  In October 1995, following the
appointment of counsel, the petition was amended.  An evidentiary
hearing in this cause was held on April 7, 1997, and the appellant's
petition was dismissed by the trial court on May 6, 1997.   The
appellant appeals this dismissal alleging as error (1) that he was
denied the effective assistance of counsel and (2) prosecutorial
misconduct.

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

JASON JERMAINE DOBBINS
vs.
STATE OF TENNESSEE

Court:TCCA

Judge: WELLES

First Paragraph:

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.  Upon reviewing
the record, we find that the trial court properly held that the
appellant's petition for post-conviction relief was barred by the
one-year statute of limitation.  Accordingly, we affirm the judgment
pursuant to Rule 20.

URL:http://www.tba.org/tba_files/TCCA/dobbins1_ord.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
SIDNEY M. EWING

Court:TCCA

Attorneys: 

For Appellant:                      For Appellee:
John B. Blair, III                  John Knox Walkup
176 Second Avenue North             Attorney General & Reporter
Suite 406
Nashville, TN  37201                Lisa A. Naylor
                                    Assistant Attorney General
                                    Cordell Hull Building, 2ndFloor
                                    Criminal Justice Division
                                    425 Fifth Avenue North
                                    ashville, TN  37243-0493
                        
                                    Kimberly Haas
                                    Asst District Attorney General
                                    Washington Square, Suite 500  
                                    222 Second Avenue North
                                    Nashville, TN  37201-1649                         

Judge: WADE

First Paragraph:

The defendant, Sidney M. Ewing, was convicted of the felony murder and
attempted especially aggravated robbery of James Mayberry and the
simple assault of Gary Frye.  The jury returned a sentence of life
without parole for the felony murder.  The trial court imposed a Range
I, twelve-year sentence for the attempted especially aggravated
robbery conviction and an eleven-month, twenty nine-day sentence for
the simple assault conviction.  All sentences are to be served
concurrently.

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

STATE OF TENNESSEE 
vs.
LARRY FRANKS AND
WILLIAM TURNER

Court:TCCA

Attorneys:  

FOR THE APPELLANT               FOR THE APPELLEE

Bobby McGee                     John Knox Walkup
Attorney at law                 Attorney General and Reporter
P. O. Box 327                   425 Fifth Avenue, North
122 East Main St.               Nashville, TN  37243
Linden, TN  37096
                                Deborah A. Tullis
                                Assistant Attorney General
                                425 Fifth Avenue, North
                                Nashville, TN  378243

                                Joseph D. Baugh
                                District Attorney General

                                Donald W. Schwendiman
                                Assistant District Attorney General
                                Hohenwald, TN                        

Judge: LAFFERTY

First Paragraph:

he defendants, Larry Franks and William Turner, were found guilty of
insurance fraud in violation of Tenn. Code Ann. S 39-14-133 by a Lewis
County jury.  Following the over-ruling of a motion for a new trial,
the trial court sentenced the defendant, Franks, to three (3) years in
the Department of Correction and a fine of $2,500.  Franks was placed
on probation for four (4) years and as a condition of probation was
ordered to serve 45 days, day for day.  The defendant, Turner,
received a sentence of two (2) years in the Department of Correction
and a fine of $1,200.  Turner was placed on a three (3) year probation
term and was ordered to serve 25 days, day for day.

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

STATE OF TENNESSEE
vs.
ALONZO GENTRY

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:
CHARLES S. KELLY                    JOHN KNOX WALKUP
802 Troy Ave.                       Attorney General & Reporter
P.O. Box 507
Dyersburg, TN 38025                 ELIZABETH T. RYAN
                                    Asst. Attorney General
                                    425 Fifth Ave., North
                                    Cordell Hull Bldg., Second Fl.                              
                                    Nashville, TN  37243-0493
                
                                    TOM CRIDER
                                    District Attorney General

                                    BRIAN FULLER
                                    Asst. District Attorney General
                                    110 South College St.
                                    Suite 200
                                    Trenton, TN 38382                          

Judge: PEAY

First Paragraph:

The defendant was indicted on May 19, 1997, on charges of possession
with intent to sell or deliver more than .5 grams of cocaine, evading
arrest, and public intoxication.  The defendant pled guilty to the
first two indicted offenses and was sentenced as a Range I standard
offender to eight years on the possession conviction and to eleven
months, twenty-nine days on the evading arrest conviction.  The
sentences are to be served concurrently.  Prior to pleading guilty,
the defendant reserved a certified question regarding the validity of
the stop and pat down search of his outer clothing.  After a review of
the record and applicable law, we remand this case to the trial court
for findings of fact.

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

STATE OF TENNESSEE
vs.
JAMES ALLEN GOOCH, SR

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:

Mark W. Henderson                   John Knox Walkup 
1719 West End Avenue                Attorney General of Tennessee
Suite 600-E                             and
Nashville, TN 37203                 Georgia Blythe Felner
                                    Asst Attorney General of Tennessee                                          
                                    450 James Robertson Parkway     
                                    Nashville, TN 37243-0493

                                    Lawrence Ray Whitley
                                    District Attorney General
                                        and
                                    Dee Gay
                                    Asst District Attorney General
                                    113 West Main Street
                                    Gallatin, TN 37066                         

Judge: Tipton

First Paragraph:

The defendant, James Allen Gooch, Sr., a/k/a "Angie Foot," appeals as
of right from his conviction upon a guilty plea in the Sumner County
Criminal Court for the sale of under one-half gram of cocaine, a Class
C felony.  The defendant was charged with two counts of selling less
than one-half gram of cocaine, possession of marijuana, and possession
of drug paraphernalia.  Pursuant to an agreement, the defendant
entered a guilty plea to one count of selling less than one-half gram
of cocaine, and the remaining charges were dismissed.  The defendant
was sentenced as a Range I, standard offender to five years in the
custody of the Department of Correction.  The trial court also imposed
a two-thousand-dollar fine.  The defendant contends that the trial
court erred by failing to consider a sentence other than confinement
by the Department of Correction.  We affirm the judgment of the trial
court.

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

STATE OF TENNESSEE
vs.
DAVID L. HATHAWAY   

     WITH CONCURRING OPINION

Court:TCCA

Attorneys:  

For the Appellant:                  For the Appellee:

Phillips M. Smalling                John Knox Walkup
Hassler & Smalling                  Attorney General & Reporter
P.O. Box 340
Byrdstown, TN. 38549                Lisa A. Naylor
                                    Assistant Attorney General
                                    2d Floor, Cordell Hull Building
                                    425 Fifth Avenue North
                                    Nashville, TN. 37243-0493

                                    William E. Gibson
                                    District Attorney General
        
                                    Anthony J. Craighead
                                    Assistant District Attorney 
                                    145 South Jefferson
                                    Cookeville, TN. 38501-3424      

Judge: BARKER

First Paragraph:

The appellant, David L. Hathaway, appeals as of right his conviction
in the Criminal Court of Pickett County.  After a bench trial, he was
convicted of driving under the influence of an intoxicant ("D.U.I.")
and was sentenced to a suspended term of six (6) months and one (1)
hour in the county jail.  The trial court revoked appellant's driver's
license for one (1) year and ordered him to serve forty eight (48)
hours in jail.  Appellant was also ordered to pay a $350 fine. On
appeal, the appellant challenges the admissibility of the results of
his breathalyser examination and the sufficiency of the convicting
evidence.  After a review of the record, we affirm the judgment of the
trial court.

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


STATE OF TENNESSEE
vs.
MARIO HAWKINS

Court:TCCA

Attorneys: 

For the Appellant:              For the Appellee:
William P. Griffin, IV          John Knox Walkup
301 Realtors Bldg.              Attorney General and Reporter
306 Gay Street  
Nashville, TN  37201            Ellen H. Pollack
                                Assistant Attorney General                              
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                Victor S. (Torry) Johnson III
                                District Attorney General

                                Kymberly Haas
                                Asst. District Attorney General
                                Washington Sq., Suite 500
                                222-2nd Ave. N
                                Nashville, TN  37201-1649                         

Judge: Hayes

First Paragraph:

The appellant, Mario Hawkins, was found guilty by a Davidson County
jury of the premeditated first degree murder of Cedric Mosley and was
sentenced to life imprisonment in the Department of Correction. 

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

STATE OF TENNESSEE
vs.
MICHAEL DURAND HOLMES

Court:TCCA

Attorneys:    


FOR THE APPELLANT:              FOR THE APPELLEE:
Greg W. Eichelman               John Knox Walkup
District Public Defender        Attorney General & Reporter

Ethel P. Laws                   Sandy C. Patrick
Assistant District PD           Assistant Attorney General
1609 College Park Dr, Box 11    Criminal Justice Division
Morristown, TN 37813-1618       425 5th Avenue North
                                2nd Floor, Cordell Hull Building
                                Nashville, TN 37243-0493

                                C. Berkeley Bell 
                                District Attorney General  
                                510 Allison Street
                                Morristown, TN 37813                      

Judge: SUMMERS

First Paragraph:

The appellant, Michael Durand Holmes, appeals from the judgment of the
Criminal Court of Hamblen County, affirming the district attorney
general's denial of pretrial diversion.  The appellant seeks to divert
the offense of delivery of a controlled substance, crack cocaine.
The appellant's sole issue on appeal is whether the trial court erred
in finding that the district attorney general did not abuse his
discretion in denying the appellant's application for pretrial
diversion.  We affirm.

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

STATE OF 
vs.
RONNIE L. INGRAM

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:
A C WHARTON                         JOHN KNOX WALKUP
Public Defender                     Attorney General & Reporter

TONY N. BRAYTON                     DOUGLAS D. HIMES
Asst. Public Defender               Asst. Attorney General
       (On Appeal)                  John Sevier Bldg.
                                    425 Fifth Ave., North
DIANE THACKERY                      Nashville, TN  37243-0493
Asst. Public Defender                       
201 Poplar, Ste. 201                WILLIAM L. GIBBONS
Memphis, TN 38103                   District Attorney General
       (At Trial)                   
                                    TERRELL HARRIS
                                    Asst. District Attorney General
                                    201 Poplar Ave., Third Fl.
                                    Memphis, TN 38103
                         
Judge: PEAY

First Paragraph:

The defendant was indicted, charged, and convicted of burglary and
sentenced as a career offender to twelve years imprisonment.  In this
appeal as of right, the defendant argues the evidence was insufficient
to support a conviction for burglary since the State failed to prove
intent to commit theft.  Finding no merit in the defendant's argument,
we affirm.

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


PHILIP E. KNIGHT
vs.
STATE OF TENNESSEE

Court:TCCA

Judge: WELLES

First Paragraph:

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.

URL:http://www.tba.org/tba_files/TCCA/knight1p_ord.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
ANTONIO MORROW

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:
BRETT B. STEIN                      JOHN KNOX WALKUP
236 Adams Ave.                      Attorney General & Reporter
Memphis, TN 38103
                                    DOUGLAS D. HIMES
                                    Asst. Attorney General
                                    John Sevier Bldg.
                                    425 Fifth Ave., North
                                    Nashville, TN  37243 0493
                
                                    WILLIAM L. GIBBONS
                                    District Attorney General

                                    JERRY KITCHEN
                                    Asst. District Attorney General
                                    201 Poplar St., Suite 301
                                    Memphis, TN 38103                         

Judge: PEAY

First Paragraph:

The defendant was convicted of first-degree murder and sentenced to
life imprisonment.  In this appeal as of right, he raises several
issues: I.  Whether the trial court erred in allowing the State to
read the indictment to the jury; II. Whether the trial court correctly
instructed the jury on lesser included offenses; III. Whether the
trial court correctly instructed the jury as to the meaning of
"reasonable doubt"; IV. Whether the trial court correctly instructed
the jury regarding the defense of duress; and V. Whether the trial
court properly refused to instruct the jury on the defense of duress
in the absence of the defense presenting evidence; Finding no merit in
the defendant's arguments, we affirm.

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

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