TBALink Opinion-Flash

August 4, 1998 -- Volume #4 -- Number #113

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):
00-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
5-New Opinons From TCA
7-New Opinons From TCCA

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Lucian T. Pera
Editor-in-Chief, TBALink


ALLSTATE INSURANCE COMPANY
vs.
W. ZANE DANIEL

Court:TCA

Attorneys: 

W. ANDREW FOX
Knoxville, Tennessee
Attorney for Appellant

W. ZANE DANIEL
DANIEL & OBERMAN
Knoxville, Tennessee
Attorney for Appellee                         

Judge:HIGHERS

First Paragraph:

Plaintiff/appellant, Allstate Insurance Company ("appellant"), appeals
the judgment of the trial court awarding defendant/appellee, W. Zane
Daniel ("appellee"), one-third of appellant's subrogation funds.  For
reasons stated hereinafter, we affirm the trial court's judgment.

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

HENRY DANIEL ANDREWS
vs.
LUBRICON, L.P., PROGRESSIVE CAPITAL
INVESTMENT CORP., and CRAMER ENTERPRISES, INC.

Court:TCA

Attorneys:  

MICHAEL B. NEAL
KRIVCHER MAGIDS PLC
Memphis, Tennessee
Attorney for Appellants

RALPH D. GOLDEN
GOLDEN & MATHIS
Memphis, Tennessee
Attorney for Appellee                        

Judge: HIGHERS

First Paragraph:

This appeal is taken from the judgment of the Shelby County Chancery
Court which held that the plaintiff was entitled to a judgment against
the defendants for $263,636.71 arising from an unpaid debt obligation
and unpaid consulting fees.  After due consideration of the appeal,
the Court affirms the ruling of the trial court.

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

PATRICIA P. ASHE
vs.
RADIATION ONCOLOGY ASSOCIATES
and STEVEN L. STROUP, M.D.

Court:TCA

Attorneys:

DAVID RANDOLPH SMITH
ROBERT BLAKE MENZEL
David Randolph Smith & Associates
Nashville, Tennessee  37203
ATTORNEYS FOR PLAINTIFF/APPELLANT

THOMAS A. WISEMAN, III
NationsBank Plaza, Suite 1900
414 Union Street
Nashville, Tennessee  37219-1782
ATTORNEY FOR DEFENDANTS/APPELLEES                          

Judge: CAIN

First Paragraph:

This case was tried before a jury in the Circuit Court in Davidson
County on two issues to-wit:  (1) informed consent and (2)
professional negligence.    On the issue of informed consent the
trial court directed a verdict for the defendant at the conclusion of
the plaintiff's proof.  On the issue of professional negligence a
mistrial was declared when the jury was unable to agree on a verdict.
The case is now before this court on the sole issue of informed
consent.

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

PATRICIA P. ASHE
vs.
RADIATION ONCOLOGY ASSOCIATES
and STEVEN L. STROUP, M.D.

Court:TCA

First Paragraph:

On July 10, 1998 an opinion was released in this case. On July 13,
1998 the Supreme Court released the opinion in Blanchard v. Kellum,
No. 02-S-01-9709-CV-00083. While Blanchard v. Kellum has no effect on
the disposition of this case, certain of the language in this case
relative to informed consent must be altered in order to conform with
Blanchard. The opinion of July 10, 1998 in this case is hereby
withdrawn and the revised opinion this day released is substituted for
the withdrawn July 10, 1998 opinion.

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

RENAISSANCE FINANCIAL SERVICES, INC.
vs. 
RONALD K. BILLBURY and DIANA D. BILLBURY

Court:TCA

Attorneys:

DUDLEY W. TAYLOR, The Taylor Law Firm, Knoxville, for Appellants.  

HENRY T. OGLE, Knoxville, for Appellee.                          

Judge:McMurray

First Paragraph:

Plaintiff Renaissance Financial Services, Inc., brought this action
against Ronald and Diana Billbury to recover a contractual fee for
services allegedly rendered in procuring a bank loan commitment,
intended to finance the Billburys' purchase of a marina.  The
Billburys argued that they were not responsible for the fee because
the president of Renaissance, Clifford C. Renfro, Jr., breached his
fiduciary duty to them by not diligently seeking the financing package
outlined in the parties' contract.  The trial court found that under
the clear and unambiguous terms of the contract, payment of the
"mortgage banking fee" was due to Renaissance, and held the Billburys
responsible for the fee.  The Billburys have appealed from this
judgment.  We affirm the judgment of the trial court.

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

RICKY EARLS
vs.
RICKY BELL

Court:TCCA

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 and the pleadings in this case, we find that it is an
appropriate matter for affirmance under Rule 20.

URL:http://www.tba.org/tba_files/TCCA/earlsr3_ord.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
ROBERT FOX

Court:TCCA

First Paragraph:

This matter is before the Court upon the state's Motion to Dismiss. 
Specifically, the state contends that the appellant failed to properly
certify the questions of law raised in this appeal.  The appellant
opposes the motion.  Upon reviewing the pleadings and the entire
record on appeal, we find that the appellant has failed to properly
reserve the right to appeal a certified question of law, and
therefore, we dismiss the appeal.

URL:http://www.tba.org/tba_files/TCCA/foxr1_ord.WP6
Opinion-Flash

JULIUS GOODMAN
vs.
STATE OF TENNESSEE

Court:TCCA

First Paragraph:

This matter is before the Court upon the state's motion to affirm the
judgment pursuant to Rule 20, Tennessee Court of Criminal Appeals
Rules.  After reviewing the record, the state's motion, and the
appellant's brief, we find that the above-styled appeal should be
dismissed.

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

DON L. HANCOCK
vs.
STATE OF TENNESSEE

Court:TCCA

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.  Finding that the
trial court lacked jurisdiction to consider the appellant's claim, we
affirm the denial of the appellant's petition for habeas corpus
relief.

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

STATE OF TENNESSEE
vs.
LESA MAE MALONE

Court:TCCA

Attorneys:

FOR THE APPELLANT               FOR THE APPELLEE

Robert H. Plummer, Jr.          John Knox Walkup
415 Bridge Street               Attorney General and Reporter
P. O. Box 1361                  425 Fifth Avenue, North
Franklin, TN  37065-1361        Nashville, TN  37243

                                Karen M. Yacuzzo
                                Assistant Attorney General
                                425 Fifth Avenue, North
                                Nashville, TN  37243

                                W. Michael McCown
                                District Attorney General
                                Marshall County Courthouse
                                Lewisburg, TN  37091

                                Weakley E. Barnard
                                Assistant District Attorney General
                                Marshall County Courthouse
                                Lewisburg, TN  37091                          

Judge:LAFFERTY

First Paragraph:

The defendant, Lesa Mae Malone, appeals as of right from the length
and manner of service of a sentence imposed by the Marshall County
Circuit Court for theft of over $60,000, a Class B felony.  She
received a sentence of ten (10) years in the Department of Correction.
 The defendant complains the trial court:  (1) improperly denied the
alternative sentencing of community corrections, (2) improperly used
the defendant's pretrial diversion from 1984 as a conviction and also
an element of the crime to enhance the punishment, and (3) improperly
used the concept of deterrence when there was no evidence to that
effect in the record.  After a review of the evidence in this record,
the briefs of the parties, and the applicable law, we affirm the trial
court's judgment.

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

TONY EDWARD MEADOWS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:
GREG KING
222 Second Avenue North
Suite 360 M
Nashville, TN  37201

FOR THE APPELLEE:
JOHN KNOX WALKUP
Attorney General and Reporter

LISA A. NAYLOR
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

VICTOR S. JOHNSON, III
District Attorney General

STEVE R. DOZIER
Assistant District Attorney General
Washington Square
222 Second Avenue, North
Suite 500 
Nashville, TN  37201                         

Judge:MOORE

First Paragraph:

The petitioner, Tony Edward Meadows, appeals the dismissal of his
petition for post-conviction relief.  Petitioner pleaded guilty to
three (3) counts of aggravated burglary in Case No. 94-D-2180; two (2)
counts of aggravated burglary in Case No. 94-D-2181; and two (2)
counts of aggravated burglary in Case No. 94-D-2128.  Petitioner
received an effective sentence of eighteen (18) years as a Range I
Offender.  Petitioner  was ordered to serve five (5) years on
community corrections and the remaining thirteen (13) years on
supervised probation.  In April, 1996, petitioner's sentence on
community corrections was revoked and his original sentence was
imposed.  On appeal, petitioner raises the issue of ineffective
assistance of counsel for the following reasons:  1. Petitioner's plea
was not made voluntarily, intelligently and understandably as a result
of trial counsel's omissions.  2. Trial counsel made little or no
independent investigation of the facts and circumstances surrounding
the charges.  3. Trial counsel failed to adequately inform petitioner
of the law and defenses of petitioner's case. 4.    Trial counsel
failed to zealously represent petitioner during plea negotiations.
After a review of the post-conviction record on  appeal and the
applicable law, the Court affirms the judgment of the trial court.

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

WILLIAM RADLEY
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant:                  For the Appellee:

C. Diane Crosier                    John Knox Walkup
Assistant Public Defender           Attorney General & Reporter
407 C. Main Street
P.O. Box 68                         Clinton J. Morgan
Franklin, TN. 37065-0068            Assistant Attorney General                              425 Fifth Avenue North  
                                    2d Floor, Cordell Hull Building
                                    Nashville, TN. 37243-0493

                                    Joseph D. Baugh, Jr.
                                    District Attorney General
                
                                    Derek K. Smith
                                    Assistant District Attorney 
                                    Williamson Co. Cthse., Ste. G-6
                                    P.O. Box 937
                                    Franklin, TN. 37065-0937                          

Judge: BARKER

First Paragraph:

The appellant, William Radley, appeals as of right from the Williamson
County Circuit Court's dismissal of his petition for post-conviction
relief.  Appellant's sole issue on appeal is that his trial counsel
was ineffective in failing to timely file an application for
permission to appeal to the Supreme Court following this Court's
decision in the direct appeal.  He contends that he is entitled to a
delayed application for permission to appeal to the Supreme Court in
accordance with Pinkston v. State, 668 S.W.2d 676 (Tenn. Crim. App.
1984), perm. app. denied (Tenn. March 19, 1984).

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


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