TBALink Opinion-Flash

September 15, 1998 -- Volume #4 -- Number #134

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.

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00-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
05-New Opinons From TCA
08-New Opinons From TCCA

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Lucian T. Pera
Editor-in-Chief, TBALink



SHERRY BROWN, as next friend
and natural mother of her minor
children, AMANDA DANETTE
MCMULLIN and ADAM MCMULLIN
VS.
DORRIS MCMULLIN, LARRY
MCMULLIN, HELEN MCMULLIN,
and THE ESTATE OF EUGENE MCMULLIN

Court:TCA

Attorneys:  

JANE M. JENNINGS
231 Mahr Avenue
Post Office Box 794
Lawrenceburg, Tennessee 38464
    Attorney for Plaintiff/Appellee

J. DANIEL FREEMON
Freemon, Hillhouse & Huddleston
327 West Gaines Street
P. O. Box 787
Lawrenceburg, Tennessee 38464
    Attorney for Defendants/Appellants                        

Judge:CANTRELL

First Paragraph:

The dispositive question in this appeal is whether a successor trustee
of a revocable savings account trust has the power after the death of
the original trustee to revoke the trust and claim the trust assets as
his own.  The Chancery court of Lawrence County ordered the trust
assets paid into the Clerk and Master's Office to be held for the
original beneficiaries.  We affirm.

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

CINDY DARLENE WARREN DONEGAN
VS.
JOHN GRAHAM DONEGAN

Court:TCA

Attorneys:         

Neal Lovlace
102 Bank Avenue
P.O. Box A
Centerville, Tennessee  37033
ATTORNEY FOR PLAINTIFF/APPELLEE


Douglas T. Bates, III
P.O. Box 1
Centerville, Tennessee  37033
ATTORNEY FOR DEFENDANT/APPELLANT
                 

Judge:TODD

First Paragraph:

The defendant, John Graham Donegan, has appealed from the judgment of
the Trial Court ordering: 1.    The parties are hereby divorced . . .
. 2.    Custody of three children committed to plaintiff. 3.    Defendant
shall pay child support. 4. Specified visitation...

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

MICHAEL C. GLEAVES
VS.
CHECKER CAB TRANSIT
CORPORATION, INC.,

Court:TCA

Attorneys:        

William D. Leader, Jr., Melissa S. Herring,
Boult, Cummings, Conners & Berry, PLC of Nashville
For Appellee, Michael C. Gleaves

Steven D. Parman, Matthew A. Boyd,
Watkins, McGugin, McNeilly & Rowan, P.L.L.C., of Nashville
For Appellant
                  
Judge:CRAWFORD

First Paragraph:

This case arises from an automobile accident involving a taxicab in
which the taxicab company was held liable for the negligence of the
taxi driver.  Defendant/Appellant Checker Cab Transit Corporation
appeals the judgment of the trial court on the jury verdict awarding
plaintiff $300,000.00 in compensatory damages.

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

SCOTT GRAHAM HARTMAN, KAY
HARTMAN, his mother and duly
qualified conservator and guardian, and
CLEON HARTMAN
VS.
THE UNIVERSITY OF TENNESSEE
THE STATE OF TENNESSEE

Court:TCA

Attorneys:                          
Mr. Paul S. Davidson
424 Church Street, Suite 2800
Nashville, Tennessee 37219
ATTORNEY FOR CLAIMANTS/APPELLANTS


Mr. Ronald C. Leadbetter
Associate General Counsel
The University of Tennessee
810 Andy Holt Tower
Knoxville, Tennessee 37996-0184
ATTORNEYS FOR DEFENDANTS/APPELLANTS

Judge:TODD

First Paragraph:

The captioned claimants have appealed from the decision of the
Tennessee Claims Commission denying their claim against the State and
the University of Tennessee for the catastrophic injury of a student
athlete while engaged in athletic activity.

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

DORIS KEOWN
VS.
FIDDLER'S INN, d/b/a FIDDLERS INN
NORTH and JAH, INC.

Court:TCA

Attorneys:                          
David B. Lyons, #11046
601 Woodland Street
Nashville, Tennessee 37206
ATTORNEY FOR PLAINTIFF/APPELLANT


Scott A. Rhodes, #16870
BREWER, KRAUSE & BROOKS
P.O. Box 23890
Nashville, Tennessee 37202-3890
ATTORNEY FOR DEFENDANTS/APPELLEES

Judge:TODD

First Paragraph:

This is a premises liability case in which the plaintiff, Doris Keown,
sued the defendants, owner and tenant, for injuries sustained by
plaintiff in a fall allegedly caused by a 3 inch rise from a parking
area to the concrete walkway at the entrance of a hotel.  The Trial
Judge rendered summary judgment for the defendants, and plaintiff
appealed.  The sole issue on appeal is the correctness of the summary
judgment.

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

STATE OF TENNESSEE
VS.
ROBERT JAY BRIDWELL

Court:TCCA

Attorneys:                          
For the Appellant:              For the Appellee:

Mack Garner                     John Knox Walkup        
District Public Defender        Attorney General of Tennessee
419 High Street                     and             
Maryville, TN 37801             Georgia Blythe Felner
(AT TRIAL AND ON APPEAL)        Assistant Attorney General of Tennessee
                                425 Fifth Avenue North      
C. Michael Robbins              Nashville, TN 37243-0493
3074 East Street
Memphis, TN 38128               Michael L. Flynn
(ON APPEAL)                     District Attorney General
                                    and
                                Kirk Andrews
                                Assistant District Attorney General
                                Blount County Courthouse
                                Maryville, TN 37804
                                
Judge:TIPTON

First Paragraph:


The defendant, Robert Jay Bridwell, appeals as of right from his
conviction by a jury in the Blount County Circuit Court for aggravated
assault, a Class C felony.  The trial court sentenced the defendant as
a Range I, standard offender to four years, with the defendant to
serve one month in the county jail followed by three years and eleven
months on intensive probation.  It imposed a fine of seven thousand
five hundred dollars.  The defendant contends that the evidence is
insufficient to support his conviction as the assailant and that the
trial court erred by denying full probation.  We hold that the
evidence is sufficient and that the trial court properly sentenced the
defendant.  We affirm the judgment of conviction.

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

DAVID ALLEN BRIMMER
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:                          
For Appellant:                  For Appellee:

W. Thomas Dillard               John Knox Walkup
Ritchie, Fels & Dillard, P.C.   Attorney General and Reporter
606 West Main Street            
Suite 300, P.O. Box 1126        Michael E. Moore 
Knoxville, TN  37901-1126       Solicitor General

                                Darian B. Taylor 
                                Assistant Attorney General 
                                Criminal Justice Division
                                Cordell Hull Building, Second Floor
                                4025 Fifth Avenue North 
                                Nashville, TN  37243-0493
    
                                Jan Hicks
                                Assistant District Attorney General
                                Room 126, Anderson County Courthouse
                                Clinton, TN  37716 

Judge:WADE

First Paragraph:

The petitioner, David Allen Brimmer, was convicted of first degree
murder on March 1, 1991.  A jury imposed the death penalty based upon
a single aggravating circumstance:  that the petitioner was engaged in
the commission of a robbery at the time of the crime.  Tenn. Code Ann.
S 39-13-204(i)(7).  On direct appeal, the conviction and sentence were
affirmed by our supreme court.  State v. Brimmer, 876 S.W.2d 75 (Tenn.
1994).  On April 18, 1995, the petitioner filed a post-conviction
petition alleging, among other things, that he was denied the
effective assistance of counsel.  At the conclusion of the evidentiary
hearing, the trial court denied relief.

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

STATE OF TENNESSEE
VS.
SCOTT ALLAN BYTWERK

Court:TCCA

Attorneys:                          
FOR THE APPELLANT:          FOR THE APPELLEE:

William C. Bright           John Knox Walkup
Assistant Public Defender   Attorney General & Reporter
128 North Second Street     425 Fifth Avenue, North
Pulaski, TN  38478          Nashville, TN  37243-0493

OF COUNSEL:                 Janis L. Turner
                            Assistant Attorney General
Shara A. Flacy              425 Fifth Avenue, North
District Public Defender    Nashville, TN  37243-0493
128 North Second Street
Pulaski, TN  38478          T. Michael Bottoms
                            District Attorney General
                            P. O. Box 459
                            Lawrenceburg, TN  38464-0459
    
                            Lawrence R. Nickell, Jr.
                            Assistant District Attorney General
                            P. O. Box 459
                            Lawrenceburg, TN  38464-0459


Judge:LAFFERTY

First Paragraph:


The defendant, Scott Allan Bytwerk, appeals as of right from a ruling
of the Maury County Circuit Court revoking his post-plea diversion
placement.  The defendant complains the trial court erred in revoking
his post-plea diversion based upon the evidence heard at the
revocation hearing.  After an appropriate review of the record, the
briefs submitted by the parties, and the law governing the issue
presented for review, it is the opinion of this Court that the
judgment of the trial court is affirmed.

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

STATE OF TENNESSEE
VS.
BARBARA J. COTTON

Court:TCCA

Attorneys:       
FOR THE APPELLANT:              FOR THE APPELLEE:

Larry D. Drolsum                John Knox Walkup
Assistant Public Defender       Attorney General & Reporter
407-C Main Street               425 Fifth Avenue, North
Franklin, TN  37065-0068        Nashville, TN  37243-0493

OF COUNSEL:                     Georgia Blythe Felner
                                Assistant Attorney General
John H. Henderson               425 Fifth Avenue, North
District Public Defender        Nashville, TN  37243-0493
407-C Main Street                   
Franklin, TN  37065-0068        Joseph D. Baugh, Jr.
                                District Attorney General
                                Williamson County Courthouse
                                Franklin, TN  37065-0937
    
                                Derek K. Smith
                                Assistant District Attorney General
                                Williamson County Courthouse
                                Franklin, TN  37065-0937
                   

Judge:LAFFERTY

First Paragraph:

The appellant, pursuant to Rule 3 of the Tennessee Rules of Appellate
Procedure, filed an appeal from a sentence imposed by the Williamson
County Criminal Court for the offense of driving on a revoked license.
The appellant, referred to as the defendant, entered a guilty plea, on
July 19, 1997, to the offense of driving on a revoked license. On
September 15, 1997, the trial court ordered the defendant to serve 180
days in the Williamson County Jail and denied alternative sentencing.
After a review of the entire record, the briefs of the parties, and
applicable law, we affirm the trial court's judgment.

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

STATE OF TENNESSEE
VS.
MICHAEL SCOTT FARNER

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

JERRY H. SUMMERS            JOHN KNOX WALKUP
500 Lindsay Street          Attorney General and Reporter
Chattanooga, TN  37402-1490
                            MICHAEL J. FAHEY, II
TIMOTHY W. JONES            Assistant Attorney General
Ogle & Wallace              425 Fifth Avenue North
Court Place, Suite 1        Nashville, TN  37243
121 Court Avenue
Sevierville, TN  37862      JERRY N. ESTES
                            District Attorney General
    
                            SHARI TAYLOE
                            Assistant District Attorney
                            P. O. Box 1351
                            Cleveland, TN  37364-1351                          

Judge:SMITH

First Paragraph:

On March 31, 1988, Appellant, Michael Scott Farner, pled guilty to
second degree murder, assault with intent to commit first degree
murder, and second degree burglary. After a sentencing hearing,
Appellant was sentenced as a standard Range I offender to 35 years for
the second degree murder conviction, 32 years for the assault with
intent to commit murder, and 9 years for the second degree burglary.
All sentences were ordered to run consecutively. Appellant waived his
right to appeal, and Appellant's court-appointed counsel was relieved
from further representation of Appellant. On May 29, 1992, Appellant
filed a pro se Petition for a Writ of Habeas Corpus in the United
States District Court for the Eastern District of Tennessee. Counsel
and a Guardian Ad Litem were appointed. On September 25, 1996,
Appellant's petition for Habeas Corpus was dismissed for failure to
exhaust state remedies. On February 10, 1997, Appellant filed a motion
for a delayed appeal to this Court. On May 28, 1997, this Court
granted the motion for a delayed appeal. Appellant appeals from the
trial court's imposition of an effective sentence of 72 years
incarceration, raising two issues:

1)  whether Appellant should receive less than the maximum sentence
in the range upon conviction of an offense when no enhancing factors
may be properly applied and where two mitigating factors should be
applied; and 2) whether Appellant should be sentenced to concurrent
prison terms when the record indicates that his confinement is not
necessary for the protection of the public, when he may be amenable to
rehabilitation, and when he cannot be properly labeled as a "dangerous
offender".

After a review of the record, we affirm the judgment of the trial
court.

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

STATE OF TENNESSEE
VS.
RICHARD DARRELL MILLER
and JOHNNY WAYNE GARNER

Court:TCCA

Attorneys:                          

For Appellant Miller:       For Appellee:

Robert D. Massey            John Knox Walkup
P.O. Box 409                Attorney General & Reporter
Pulaski, TN  38478
                            Ellen H. Pollack
For Appellant Garner:       Assistant Attorney General
                            425 Fifth Avenue North
Hershell D. Koger           Cordell Hull Building, 2nd Floor
135 N. First Street         Nashville, TN  37243-0493
P.O. Box 1148                       
Pulaski, TN  38478          Mike Bottoms 
                            District Attorney General
                            252 N. Military Avenue  
                            Lawrenceburg, TN  38464
Judge:WADE

First Paragraph:

The defendants, Richard Darrell Miller and Johnny Wayne Garner,
indicted for first degree murder and aggravated arson, were jointly
tried and convicted of voluntary manslaughter and aggravated arson. 
The trial court sentenced each defendant to five years for
manslaughter and fifteen years for aggravated arson.  The sentences
are to be served consecutively.

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

STATE OF TENNESSEE
VS.
TONY MURPHY MCKINNEY

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

MICHAEL A. WALCHER              JOHN KNOX WALKUP
Assistant Public Defender       Attorney General & Reporter
1609 College Park Dr., Box 11
Morristown, TN 37813-1618       CLINTON J. MORGAN   
                                Counsel for the State   
                                425 Fifth Ave. North
                                2d Floor, Cordell Hull Bldg.
                                Nashville, TN 37243-0493    

                                C. BERKELEY BELL
                                District Attorney General
                
                                CECIL E. MILLS, JR.
                                Assistant District Attorney General
                                109 S. Main St.
                                Greeneville, TN 37743                          

Judge:WITT

First Paragraph:

The defendant, Tony Murphy McKinney, appeals pursuant to Rule 3,
Tennessee Rules of Appellate Procedure,  from his judgment of
conviction in the Criminal Court of Greene County for driving under
the influence, a Class A misdemeanor, and for driving with a revoked
license, a Class B misdemeanor.  He was ordered to serve one hundred
percent of an eleven month and twenty- nine day sentence for DUI and
seventy-five percent of a six month sentence for driving on a revoked
license.  In this appeal, the defendant claims that:

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

STATE OF TENNESSEE
VS.
LARRY WILSON

Court:TCCA

Attorneys: 


FOR THE APPELLANT:      FOR THE APPELLEE:

P. RICHARD TALLEY       JOHN KNOX WALKUP
P. O. Box 950           Attorney General and Reporter
Dandridge, TN  37725            
                        SANDY C. PATRICK
                        Assistant Attorney General
                        425 Fifth Avenue North
                        Nashville, TN  37243-0943

                        BERKELEY BELL
                        District Attorney General

                        JOHN DUGGER
                        Assistant District Attorney
                        510 Allison Street
                        Morristown, TN  37814
                         

Judge:SMITH

First Paragraph:

On March 12, 1997, a Hamblen County jury found Appellant, Larry
Wilson, guilty of reckless homicide. The jury imposed a fine of
$5,000. After a sentencing hearing, the trial court sentenced
Appellant to the maximum penalty of four years incarceration to be
served as a Range I standard offender. Appellant appeals from the
trial court's sentence, raising two issues:


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

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