TBALink Opinion-Flash

September 28, 1998 -- Volume #4 -- Number #138

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
04-New Opinons From TSC-Workers Comp Panel
17-New Opinons From TCA
13-New Opinons From TCCA

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Lucian T. Pera
Editor-in-Chief, TBALink



ANGELA BILBREY
vs.
AMERICAN NATIONAL BANK
and TRUST COMPANY

Court:TSC - Workers Comp Panel

Attorneys:  

For Appellant:                 For Appellee:

Randy Wilson                   Ronald J. Berke
James Williams                 Berke, Berke & Berke
Miller & Martin                Chattanooga, 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 appellant contends
the evidence preponderates against the chancellor's findings that the
employee's permanent mental and physical injuries arose out of and in
the course of her employment.  As discussed below, the panel has
concluded the judgment should be affirmed.

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

SCOTT M. SHULTZ 
vs.
BANEBERRY GOLF COURSE and
UNITED STATES FIDELITY &    
GUARANTY COMPANY    

Court:TSC - Workers Comp Panel

Attorneys:

For the Appellants:                 For the Appellee:

Thomas L. Kilday                    James M. Davis
Milligan & Coleman                  214 North Jackson St.
P.O. Box 1060                       Morristown, Tn.  37814
Greeneville, Tn.  37444-1060                          

Judge:THAYER

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. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.

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

LARRY DONALD SETSOR
vs. 
ENGLAND CORSAIR         
UPHOLSTERY MFG. COMPANY, INC.           

Court:TSC - Workers Comp Panel

Attorneys:  

For the Appellant:                  For the Appellee:

William A. Simms                    James M. Davis
ARNETT, DRAPER & HAGOOD             214 North Jackson Street
2300 First Tennessee Plaza          Morristown, TN 37814
Knoxville, TN 37929                        

Judge:INMAN

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with T.C.A. S 50-6-225(e)(3) for hearing and reporting to the Supreme
Court of findings of fact and conclusions of law.

URL:http://www.tba.org/tba_files/TSC-WCP/setsor_wc3.WP6
Opinion-Flash

THE TRAVELERS INSURANCE COMPANY 
vs.
KAREN MORRISETT

Court:TSC - Workers Comp Panel

Attorneys:


For the Appellant:                  For the Appellee:

P. Richard Talley                   David M. Sanders
P.O. Box 950                        800 S. Gay St., Suite 1209
Dandridge, Tenn.  37725             Knoxville, Tenn.  37929                          

Judge:THAYER

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. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.

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

WILLIAM BAUMGARDNER 
and wife,           
SUSAN BAUMGARDNER
vs.
ACD TRIDON NORTH AMERICA, INC.

Court:TCA

Attorneys:

GUY R. DOTSON, JR.
102 South Maple Street
Murfreesboro, Tennessee  37130
ATTORNEY FOR PLAINTIFFS/APPELLANTS

JOHN R. RUCKER, JR.
14 Public Square North
Murfreesboro, Tennessee  37130
ATTORNEY FOR DEFENDANT/APPELLEE                          

Judge:CORLEW

First Paragraph:

This is an appeal by plaintiff from summary judgment rendered by the
trial court in favor of the defendant in a personal injury case.

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

R.S. BRANDT, K.M. LUNDIN,
M.I. LUNDIN, N.B. LUNDIN,
and A.T. WILTSHIRE, JR.,

vs.
BIB ENTERPRISES, LTD., A    
Tennessee Limited Partnership,  
and GREGORY SMITH, Individually,
and VIRGINIA ABERNETHY

Court:TCA

First Paragraph:

Appellees' petition for rehearing has been considered and is
respectfully denied.


URL:http://www.tba.org/tba_files/TCA/brandtr2_ord.WP6
Opinion-Flash

IN RE:  
LAURA ANN CAMPBELL

Court:TCA

Attorneys:

For Plaintiff/Appellant:                For Defendant/Appellee:

William Landis Turner                   No Appearance
KEATON, TURNER & SPITZER
Hohenwald, Tennessee                          

Judge:PARNELL

First Paragraph:

This appeal involves a biological father's attempt to gain custody of
his eleven-year-old daughter.  Apparently ignoring the biological
father's petition for custody, the Perry County Juvenile Court placed
the child in the custody of her former stepfather who had recently
divorced her biological mother.  The father asserts on this appeal
that the juvenile court failed to give him an opportunity to present
evidence to support his petition for custody and also failed to employ
the proper evidentiary standard in deciding to award custody to his
daughter's former stepfather.  We vacate the juvenile court's custody
order because the natural father was not afforded a hearing on his
custody petition and because the juvenile court did not make the
requisite findings of fact to support awarding custody of a child to
someone other than a biological parent.

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

JAMES CARROLL and FORESTINE
CARROLL, for the use and benefit of
the Estate of JESSIECA RENEE 
CARROLL, a minor, deceased, and
JAMES CARROLL and FORESTINE
CARROLL, Individually
vs.
CAROLYN WHITNEY, M.D., 
GROVER W. BARNES, M.D., P.C., 
and LEBONHEUR CHILDREN'S
MEDICAL CENTER, INC., acting
by and through its Agents, Servants,
Employees and Others

Court:TCA

Attorneys:

Carl I. Jacobson of
McKnight, Hudson, Lewis, Ford & Harrison of Memphis
Ross Higman of
Wyatt, Tarrant & Combs of Memphis
For Appellants

Thomas R. Prewitt, Jr. and Donna L. Boyce of Memphis
For Defendant Lebonheur Children's Medical Center

Robert L. J. Spence, Jr. and Chapman Sellers Morrow of
The Hardison Law Firm of Memphis
For Defendants Carolyn Whitney, M.D.
and Grover W. Barnes, M.D., P.C.                          

Judge:CRAWFORD

First Paragraph:

The appeal of this medical malpractice case presents issues concerning
comparative fault principles.  Plaintiffs, James Carroll and Forestine
Carroll, for the use and benefit of the Estate of Jesse Renee Carroll,
a minor, deceased, and James Carroll and Forestine Carroll,
individually, appeal the trial court's judgment on a jury verdict for
defendants, Carolyn Whitney, M.D., Grover W. Barnes, M.D., P.C., and
Lebonheur Children's Medical Center, Inc.

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

CRYE-LEIKE REALTORS, INC.
A Tennessee Corporation
vs.
WDM, INC., a subsidiary of DERLAN,
INDUSTRIES LIMITED, and 
GEORGE C. RICHERT, TRAMMELL
CROW SE, INC. and SCOTT PAHLOW

Court:TCA

Attorneys: 

Roger A. Stone, STONE, HIGGS & DREXLER, Memphis, Tennessee
Attorney for Plaintiff/Appellant.

Anthony Sammons, BRANSON & BEARMAN, PLLC, Memphis, Tennessee
Attorney for Defendants/Appellees WDM, Inc. and George C. Richert.

William L. Hendricks, Jr., GLANKLER BROWN, PLLC, Memphis, Tennessee
Attorney for Defendant/Appellee Trammell Crow SE, Inc.                         

Judge:FARMER

First Paragraph:

In this action for breach of contract and procurement of breach of
contract, Plaintiff Crye-Leike Realtors, Inc., appeals the trial
court's final order entering summary judgment in favor of
Defendants/Appellees WDM, Inc., George C. Richert, Trammell Crow SE,
Inc., and Scott Pahlow.  We reverse the trial court's judgment because
we conclude that the record reveals the existence of genuine issues of
material fact which preclude summary judgment on these claims.

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

BIANCA ARNESHE ASKEW    
DOROTHY LEWIS
vs.
JULIE DONOHO

Court:TCA
                     
Judge:LILLARD

First Paragraph:

Y KIRBY LILLARD, J.

I agree with the result reached by the majority, as well as the
standard of proof adopted by the majority for a non-custodial parent
to regain custody from a nonparent custodian.  However, I write
separately to clarify my understanding of this standard and its
application in this case.

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

MARY F. HALL and
DON K. HALL
vs.
MARY ROSE PIPPIN and
DALE DELANEY

Court:TCA

Attorneys:

For Plaintiffs/Appellees:               For Defendants/Appellants:

Manuel F. Edwards                       William R. Draper
Cookeville, Tennessee                   Cookeville, Tennessee

T. Michael O'Mara                       Thomas F. Bloom
Cookeville, Tennessee                   Nashville, Tennessee

                                        Jerry Scott
                                        Murfreesboro, Tennessee

                                        William Capelle Keaton
                                        Hohenwald, Tennessee                          

Judge:NEAL

First Paragraph:

This appeal stems from a dispute between neighbors over the use of an
old road in rural Putnam County.  After the owners of one tract began
to erect a fence across the road, the owners of the neighboring tract
filed suit in the Chancery Court for Putnam County seeking injunctive
and declaratory relief concerning their right to continue to use the
road to gain access to their property.  The trial court heard the case
without a jury and determined that the disputed road ran along the
roadbed of an old public road and that the abutting landowners had not
abandoned their use of the old road even though it had ceased being
used by the general public.  Accordingly, the trial court granted the
plaintiff landowners an easement over the portion of the defendant
neighbors' property where the old road ran.  On this appeal, the
defendant neighbors assert that the old road had been abandoned by
both the general public and the abutting landowners.  Accordingly,
they insist that the old road could not supply a basis for an
easement.  We have determined that the judgment should be affirmed.

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

MARY F. HALL and
DON K. HALL
vs.
MARY ROSE PIPPIN and    
DALE DELANEY

Court:TCA
                      
Judge:TODD

First Paragraph:

Mary Rose Pippin and Dale Delaney have filed a petition requesting
this court to reconsider its August 19, 1998 opinion in light of seven
exhibits that were not transmitted to this court with the rest of the
record on appeal.  At our request, Mary F. Hall and Don K. Hall have
filed a response to the petition for rehearing.  The clerk and master
has also transmitted a supplemental record containing the seven
missing exhibits and an affidavit concerning the reasons why these
exhibits were not included with the original appellate record.

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

WALTER K. JOHNSON
vs.
TENNESSEE DEPARTMENT OF CORRECTIONS

Court:TCA

Attorneys:

Walter K. Johnson, #94955
R.M.S.I., Unit 6, A-123
7475 Cockrill Bend Road
Nashville, Tennessee 37209-1010
PRO SE/ PLAINTIFF/APPELLANT

John R. Miles, #13346
Counsel for the State
Civil Rights & Claims Division
Cordell Hull Bldg., Second Floor
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
ATTORNEY FOR DEFENDANT/APPELLEE                          

Judge:TODD

First Paragraph:

The captioned petitioner, a prisoner in the custody of the Tennessee
Department of correction, has appealed from the judgment of the Trial
Court dismissing his "Petition for a Declaratory Judgment", which is,
in reality an action seeking review of an administrative decision of
the Department regarding sentence credits.  The grounds of the
dismissal were twofold:  1. Application for judicial review was not
filed within 60 days after final action of the administrative agency
as required by T.C.A. S 4-5-322(b)(1), and  2. Failure to state a
claim for which relief can be granted because the "sentence credits"
sought by petitioner are not matters of right but of discretion by the
administrative authorities.  T.C.A. S 41-21-236(a)(2) and (3).

URL:http://www.tba.org/tba_files/TCA/johnswal_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

BIANCA ARNESHE ASKEW
DOROTHY LEWIS
vs.
JULIE DONOHO

Court:TCA

Attorneys:

MARGARET R. BARR
Memphis, Tennessee
Attorney for Appellant

JAMES F. GOODWIN
Germantown, Tennessee
Attorney for Appellee                          

Judge:HIGHERS

First Paragraph:

This case presents for review a dispute over custody of a minor child
between a parent and a nonparent where a prior judicial decree awarded
custody to the nonparent.  The parent has appealed the trial court's
Rule 41.02(2) dismissal of her petition to restore custody of her
child. We find that the evidence does not preponderate against the
trial court's finding that Donoho failed to satisfy her burden of
proof of establishing a material change in circumstances and,
therefore, affirm.

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

METRIC PARTNERS GROWTH
SUITE INVESTORS, L.P.
vs.
NASHVILLE LODGING COMPANY;          
2300 ELM HILL PIKE, INC.,
    Defendant/Appellant,
and                 
ORLANDO RESIDENCE, LTD.; and    
LA SALLE NATIONAL BANK as       
trustee under that certain pooling 
and servicing agreement dated 
July 11, 1995, for the holders of the
WHP Commercial Mortgage Pass
Through Certificates, Series 1995C1,
and ROBERT M. HOLLAND, JR.,
Trustee

Court:TCA

Attorneys:

ALAN T. FISTER
STEWART, ESTES & DONNELL
424 Church Street
Nashville, Tennessee 37219-2392

MIKE BUCKLEY
CROSBY, HEAFEY, ROACH & MAY
1999 Harrison Street
Oakland, California 94604-2084
    Attorneys for Plaintiff/Appellee

SAMUEL L. FELKER
JOSEPH F. WELBORN, III
BASS, BERRY & SIMS
2700 First American Center
Nashville, Tennessee 37238-2700
    Attorneys for Defendant/Appellant

EUGENE N. BULSO, JR.
BOULT, CUMMINGS, CONNERS & BERRY
414 Union Street
Nashville, Tennessee 37219-8062
Attorney for Defendant/Appellee Orlando Residence, Ltd.

KENNETH M. BRYANT
TRABUE, STURDIVANT & DEWITT
522 Union Street
Nashville, Tennessee 37219-1738

HUNTER T. CARTER
ARENT, FOX, KINTNER, PLOTKIN & KAHN
1050 Connecticut Avenue, N.W.
Washington, D.C.  20036-5339
Attorneys for Defendants/Appellees LaSalle National Bank
and Robert M. Holland                          

Judge:CANTRELL

First Paragraph:

The owner of a hotel subject to a first mortgage sold the building and
its contents to the plaintiff and took a second mortgage to secure the
purchase price.  The plaintiff also operated the hotel under a ground
lease with the owner.  When the owner failed to pay the first
mortgage, the plaintiff sought a declaratory judgment that the owner
was in default, that the plaintiff could pay the first mortgage
directly to the mortgagee, and that the plaintiff was discharged from
its obligation to the owner.  The owner resisted the declaration on
the ground that it had certain defenses against the first mortgagee. 
The Chancery Court of Davidson County granted summary judgment to the
plaintiff.  We affirm.

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

STATE OF TENNESSEE, ex rel.
PEGGY A. RICHARDSON
vs.
MICHAEL W. RICHARDSON

Court:TCA

Attorneys:

JOHN KNOX WALKUP
Attorney General & Reporter

KIMBERLY M. FRAYN
Assistant Attorney General
General Civil Division
425 Fifth Avenue North
Cordell Hull Building, 2nd Floor
Nashville, Tennessee  37243-0499
ATTORNEYS FOR PLAINTIFF/APPELLEE

CLARK LEE SHAW
2525 Lebanon Road
Nashville, Tennessee  37214
ATTORNEY FOR DEFENDANT/APPELLANT
                          

Judge:BUSSART

First Paragraph:

Appellant Michael Richardson is the former husband of Peggy Richardson
and they are the parents of the minor child whose financial support is
the basis for this case.  The State of Tennessee ex rel Ms. Richardson
filed a petition for contempt seeking a judgment for the accumulated
arrearage in child support.  The lower court found Mr. Richardson in
criminal contempt of court pursuant to Tennessee Code Annotated
sections 29-9-102 and 29-9-103 and granted an arrearage judgment
against him in the amount of $18,194.58.  He has appealed to this
court.

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

DEPARTMENT OF HUMAN
SERVICES, and       
THE ASSOCIATION FOR 
GUIDANCE, AID, PLACEMENT
AND EMPATHY 
vs.
ROBERT RUDD

Court:TCA

Attorneys: 

M. ALLEN EHMLING
McClellan, Powers, Ehmling &Dix, P.C.
116 Public Square
Gallatin, TN 37066
ATTORNEY FOR THE PETITIONERS/APPELLEES

J. MICHAEL O'NEIL
P.O. Box 60125
Nashville, TN 37206
ATTORNEY FOR THE RESPONDENT/APPELLANT                         

Judge:CAIN

First Paragraph:

This case represents a father's appeal from an order terminating his
parental rights with regard to three minor children.  On appeal, the
father raises the following issue: "Whether a relative can enjoy the
same placement preference as a parent where termination of parental
rights and non-relative adoption are the only alternative to relative
placement."  Mr. Rudd attempts to advance the position that as long as
a parent or parental relative (in this case a paternal grandmother)
can provide a stable safe environment for a dependent and neglected
child, termination of parental rights is not a viable option under the
statutes.  Appellant seeks to rely on the parental relative-preference
noted in  the Title 37, Chapter 2.  Tenn. Code. Ann. S 37-2-403
(1996).  No statement of facts was filed with the appeal.  See Tenn.
R. App. P. 24 (1998).  Due to appellate counsel's able argument
regarding the rights at stake, this court issued an order to consider
this case on the briefs and technical record alone.

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

MATTHEW SEFFERNICK
vs.
SAINT THOMAS HOSPITAL AND
BARRY E. YARBROUGH, M.D.

Court:TCA

Judge:TODD

First Paragraph:

In accordance with the opinion of the Court filed herein, the petition
to rehear filed by the appellees is denied at the cost of appellees..

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

IN RE: BANKS DEWEY THOMPSON     
CHRISTINE PERRY
vs.
JAMES EARL RUBLEY

Court:TCA

Attorneys:


PAUL D. CROSS
100 Highway 64 West
P. O. Box 99
Monteagle, Tennessee 37356
Attorney for Plaintiff/Appellant

AUBREY L. HARPER
114 North College Street
P. O. Box 588
McMinnville, Tennessee 37111-0588
Attorney for Defendant/Appellee                          

Judge:CANTRELL

First Paragraph:

The trial court set aside the testator's 1992 will on the ground that
the sole beneficiary under that will had exerted undue influence upon
the testator.  We reverse, because we find that the evidence in the
record preponderates against the trial court's finding of undue
influence.

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

JIMMY WAYNE WILSON
vs.
JAMES T. FITE, VIVIEN TROY COOK,
DEWEY SCOTT FRAZIER, JERRY L.
CHILTON, PAUL CARRIER, ET AL.
vs.
STATE OF TENNESSEE, GOVERNOR    
NED RAY McWHERTER, PAROLE
ELIGIBILITY REVIEW BOARD &  
MEMBERS, JIM THRASHER,  
JOHN S. WILDER, JIMMY NAIFEH,
AND CHARLES BURSON, ET AL.

Court:TCA

Judge:TODD

First Paragraph:

Jimmy Wayne Wilson has filed a pro se request for a rehearing,
claiming that this court's opinion of January 16, 1998 is in conflict
with well-established principles of law.  While Rule 39 of the Rules
of Appellate Procedure provides that an appeals court may grant a
rehearing in situations where "the court's opinion is in conflict with
a statute, prior decision, or other principle of law," Mr. Wilson has
not stated any principle of law nor cited any statute that would
require us to find that he is entitled to the relief he seeks.

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

STATE OF TENNESSEE
vs.
DON L. ADKINS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

DAVID NEAL BRADY                JOHN KNOX WALKUP 
District Public Defender        Attorney General & Reporter

JOE L. FINLEY, JR.              CLINTON J. MORGAN
Assistant Public Defender       Assistant Attorney General
215 Reagan Street               2nd Floor, Cordell Hull Building
Cookeville, TN  38501           425 Fifth Avenue North 
                                Nashville, TN  37243

                                WILLIAM EDWARD GIBSON
                                District Attorney General 

                                DAVID A. PATTERSON
                                Assistant District Attorney General
                                145 South Jefferson Avenue
                                Cookeville, TN  38501                         

Judge:WOODALL

First Paragraph:

The Defendant, Don L. Adkins, appeals as of right following his
sentencing hearing in the Cumberland County Criminal Court.  The
Defendant was indicted on four (4) counts of aggravated sexual
battery.  In an agreement with the District Attorney's office,
Defendant agreed to plead guilty to one (1) count of attempted
aggravated sexual battery, a Class C felony.  Defendant also agreed to
a sentence of six (6) years with the trial court to determine the
manner of service of his sentence.  Following the sentencing hearing,
the trial court ordered Defendant to serve his entire sentence in the
Department of Correction.  Defendant argues that the trial court erred
in denying a sentence of split confinement.  We affirm the judgment of
the trial court.

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

STATE OF TENNESSEE
vs.
TIMMY BEAVERS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

CURTIS H. GANN                  JOHN KNOX WALKUP 
District Public Defender        Attorney General & Reporter

DONNA L. HARGROVE               ELIZABETH B. MARNEY
Assistant Public Defender       Assistant Attorney General
                                2nd Floor, Cordell Hull Building
JOHN H. DICKEY                  425 Fifth Avenue North 
Assistant Public Defender       Nashville, TN  37243

MICHAEL D. RANDLES              WILLIAM MICHAEL McCOWN
Assistant Public Defender       District Attorney General
P.O. Box 1119
Fayetteville, TN  37334         WEAKLEY E. BARNARD
                                Assistant District Attorney General
GERALD L. GULLEY, JR.           Marshall County Courthouse, Room 407
P.O. Box 1708                   Lewisburg, TN  37091 
Knoxville, TN  37901-1708
(ON APPEAL ONLY)                         

Judge:WOODALL

First Paragraph:

This appeal by Defendant Timmy Beavers attempts to present a certified
question of law pursuant to Rule 3(b) of the Tennessee Rules of
Appellate Procedure and Rule 37(b)(2) of the Tennessee Rules of
Criminal Procedure.  The certified question Defendant attempts to
present to this Court involves the trial court's denial of a motion to
suppress certain evidence obtained from Defendant.  Because we
conclude that this matter is not properly before us, the judgment
below is affirmed and the appeal is dismissed.

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

TIMOTHY BICKERS, THOMAS
CARTER, and GREGORY HEDGES
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellants:                 For the Appellee:

Lionel R. Barrett                   John Knox Walkup
222 Second Avenue                   Attorney General and Reporter
Suite 418                           
Nashville, TN 37201                 Peter M. Coughlan           
                                    Assistant Attorney General
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493


                                    C. Berkeley Bell, Jr.
                                    District Attorney General
                                    109 S. Main Street
                                    Suite 501
                                    Greeneville, TN 37743                          

Judge:Barker

First Paragraph:

The appellants, Timothy Bickers, Thomas Carter, and Gregory Hedges,
appeal as of right the dismissal in the Greene County Criminal Court
of their petitions for post-conviction relief.  The trial court
granted their motions to reopen, but found that the petitions were
barred by the statute of limitations and that the ground for relief
was waived.  Although we conclude that the trial court erred in
granting the motions to reopen, we nevertheless affirm the trial
court's judgment dismissing the petitions for post-conviction relief.

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

STATE OF TENNESSEE
vs.
DAVID BORNFRIEND

Court:TCCA

Attorneys: 

FOR THE APPELLEE:               FOR THE APPELLANT:

STEVE CONLEY                    JOHN KNOX WALKUP    
BRUCE S. CONLEY                 Attorney General & Reporter 
Conley, Campbell, Moss & Smith 
P.O. Box 427                    ELIZABETH T. RYAN
Union City, TN  38261           Assistant Attorney General 
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                THOMAS A. THOMAS
                                District Attorney General

                                JAMES T. CANNON
                                Assistant District Attorney General
                                P.O. Box 218
                                Union City, TN  38261-0218                         

Judge:WOODALL

First Paragraph:

The Appellant, the State of Tennessee (state), appeals from a judgment
of the trial court suppressing three statements made by David
Bornfriend (defendant) to law enforcement officers.  The state appeals
pursuant to Rule 3(c) of the Tennessee Rules of Appellate Procedure on
the basis that the trial court's order granting the motion to suppress
had the substantive effect of dismissing the indictment against the
defendant.  In this court, the state contends "the trial court
erroneously suppressed the three statements given by the defendant
because none of the statements were involuntary."  After a thorough
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 should be affirmed.

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

STATE OF TENNESSEE
vs.
ANDREW COLE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:


Clifford K. McGown, Jr.             John Knox Walkup
113 North Court Square              Attorney General & Reporter
P.O. Box 26                     
Waverly, TN   37185                 Clinton J. Morgan
(Appeal Only)                       Counsel for the State
                                    425 Fifth Avenue North
Tom W. Crider                       2nd Floor, Cordell Hull Building
District Public Defender            Nashville, TN   37243-0493
107 South Court Square 
Trenton, TN   38382                 Clayburn Peeples
(Trial and Of Counsel on Appeal)    District Attorney General
        
                                    Larry Hardister
                                    Asst. District Attorney General
                                    110 South College Street, Suite 200
                                    Trenton, TN   38382                         

Judge:Wedemeyer

First Paragraph:

On September 16, 1997, the appellant, Andrew Cole, was convicted by a
jury of one count of attempted first degree murder, one count of
attempted second degree murder, one count of aggravated assault and
one count of unlawful possession of a firearm.  In this appeal, the
appellant's sole complaint is that the evidence was insufficient to
support either the attempted first degree murder or attempted second
degree murder convictions.  Following our review of the evidence, we
affirm the convictions.

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

STATE OF TENNESSEE
vs.
ROBERT EMMET DUNLAP, JR.

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

Matthew M. Maddox           John Knox Walkup
Maddox, Maddox & Maddox     Attorney General & Reporter 
19695 East Main Street
P.O. Box 430                Elizabeth T. Ryan
Huntingdon, TN 38344        Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN 37243-0493

                            Robert "Gus" Radford 
                            District Attorney General

                            John W. Overton, Jr.
                            Asst. District Attorney General
                            P.O. Box 686
                            Huntingdon, TN 38344                          

Judge:SUMMERS

First Paragraph:

The appellant, Robert Emmet Dunlap, Jr., was convicted by a jury of
three counts of the sale of cocaine in the Henry County Circuit Court.
The court imposed concurrent sentences of ten years for each
conviction.  The court denied the appellant's motion for a new trial
and this appeal followed.  The appellant presents the following issues
for our review:  I. Whether the trial court erred in denying his
motion to subpoena jurors to determine if the jury received and relied
upon extrajudicial information in reaching their verdict.  II. 
Whether the trial court erred in refusing to order the state to
provide him with the criminal record of the confidential informant who
testified against him.  III. Whether the trial court erred in denying
his motion for a judgment of acquittal on count five of the indictment.

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

SEAN PATRICK GOBLE
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

SEAN P. GOBLE, pro se           JOHN KNOX WALKUP 
R.M.S.I., U-5    B110           Attorney General & Reporter
7475 Cockrill Bend Road
Nashville, TN  37209            ELLEN H. POLLACK
                                Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                C. BERKELEY BELL
                                District Attorney General 
                                109 South Main Street
                                Greeneville, TN  37743                         

Judge:WOODALL

First Paragraph:

The Petitioner/Appellant, Sean Patrick Goble, appeals as of right from
the trial court's order dismissing his petition for post-conviction
relief.  The petition was dismissed without an evidentiary hearing.

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

JEFFERY J. HANKINS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

GEORGE MORTON GOOGE             JOHN KNOX WALKUP
District Public Defender        Attorney General & Reporter
(On Appeal)         
                                GEORGIA BLYTHE FELNER
DANIEL J. TAYLOR                Counsel for the State
Asst. Public Defender           Criminal Justice Division       
227 West Baltimore Street       Cordell Hull Building, Second Floor
Jackson, TN   38301             425 Fifth Avenue North
(At PC Hearing)                 Nashville, TN   37243-0493
            
                                Jerry Woodall
                                District Attorney General
                
                                Al Earls
                                Asst. District Attorney General
                                P.O. Box 2825
                                Jackson, TN   38301                          

Judge:WEDEMEYER

First Paragraph:

On October 13, 1993, the petitioner was convicted by a jury on two
counts of aggravated robbery and one count of use of a weapon in the
commission of a felony and upon a guilty plea to possession of
cocaine.  On direct appeal, the aggravated robbery counts were
affirmed; however, the use of a weapon conviction was reversed.  State
v. Jeffery Hankins, No. 02C01-9404-CC-00069 (Tenn. Crim. App. Jan. 11,
1995).  On March 25, 1996, the petitioner filed a petition for
post-conviction relief in which he claimed that his trial counsel was
ineffective.  Following an evidentiary hearing, the trial court denied
the petition.  From this denial, the petitioner appeals.

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

STATE OF TENNESSEE
vs.
JOHN R. LEWIS

Court:TCCA

Attorneys:


FOR THE APPELLANT:              FOR THE APPELLEE:

Randall E. Self                 John Knox Walkup
P. O. Box 501                   Attorney General & Reporter
Fayetteville, TN  37334         425 Fifth Avenue, North
                                Nashville, TN  37243-0493

                                Karen M. Yacuzzo
                                Assistant Attorney General
                                425 Fifth Avenue, North
                                Nashville, TN  37243-0493

                                William M. McCown
                                District Attorney General
                                215 East College
                                Fayetteville, TN  37334

                                Weakley E. Barnard
                                Assistant District Attorney General
                                Marshall County Courthouse, Room 407
                                Lewisburg, TN  37091                          

Judge:LAFFERTY

First Paragraph:

The defendant, John R. Lewis, was convicted of aggravated sexual
battery by a Lincoln County jury. The trial court imposed a sentence
of ten (10) years in the Department of Correction.

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

STATE OF TENNESSEE
vs. 
COREY LEMONT POWELL

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

MICHAEL E. SCHOLL                   JOHN KNOX WALKUP 
200 Jefferson Avenue, Suite 202     Attorney General & Reporter
Memphis, TN  38103
                                    DOUGLAS D. HIMES 
                                    Assistant Attorney General
                                    2nd Floor, Cordell Hull Building
                                    425 Fifth Avenue North
                                    Nashville, TN  37243

                                    ELIZABETH T. RICE
                                    District Attorney General 

                                    CHRISTOPHER MARSHBURN
                                    Asst. District Attorney General
                                    302 Market Street 
                                    Somerville, TN  38068                          

Judge:WOODALL

First Paragraph:

The Defendant, Corey Lemont Powell, appeals as of right from his
conviction in the Fayette County Circuit Court.   Defendant was
indicted on three counts, including especially aggravated robbery,
murder during the perpetration of a robbery, and premeditated first
degree murder.  Following a jury trial, Defendant was convicted of
second degree murder, felony murder and especially aggravated robbery.
The trial court merged the second degree murder conviction with the
felony murder conviction and sentenced Defendant to serve a life
sentence for felony murder concurrent with a sentence of fifteen (15)
years for the especially aggravated robbery conviction.  Defendant
submits the following issues for appellate review: 1) whether the
trial court erred in denying Defendant's motion to suppress his
statement;  2) whether the trial court erred in refusing Defendant
access to the results of a polygraph test for use as evidence; 3)
whether the trial court erred by refusing to suppress evidence of the
murder weapon and the ballistics test; 4) whether the trial court
erred in denying Defendant's motion regarding the striking of specific
jurors and motion for a change of venue; 5) whether the trial court
erred in denying Defendant's motion for a mistrial due to admission of
evidence of Defendant's arrest; 6) whether the trial court erred in
refusing to admit testimony regarding Defendant's restricted access to
the telephone during police questioning; 7) whether the trial court
erred in overruling Defendant's motion for a judgment of acquittal; 8)
whether the trial court erred by refusing to charge lesser included
offenses of premeditated first degree murder; and 9) whether the trial
court erred by allowing prosecutorial misconduct during the trial. 
After a thorough review of the record and the briefs in this matter,
we affirm the judgment of the trial court in all respects.

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

ANTONIO SWEATT
vs.
STATE OF TENNESSEE

Court:TCCA

Judge:RILEY

First Paragraph:

This matter is before the Court upon motion of the state to affirm the
judgment of the trial court pursuant to Rule 20, Rules of the Court of
Criminal Appeals.  This case represents an appeal from the trial
court's denial of the petitioner's petition for writ of habeas corpus.
 The petitioner pled guilty to two counts of aggravated rape in 1990
and received an effective 25 year sentence.  No appeal was taken.  In
his present petition, the petitioner claims that he was induced to
plead guilty by a misrepresentation of the extent of his sentence and
that his sentence has expired.  Specifically, the petitioner claims he
was informed that he would be released from prison after serving 30%
of his effective sentence because he was sentenced as a Range I
offender.

URL:http://www.tba.org/tba_files/TCCA/sweatt2_ord.WP6
Opinion-Flash

ARTHUR R. TURNER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

DAVID A. COLLINS                    JOHN KNOX WALKUP 
211 Printers Alley Building         Attorney General & Reporter
Fourth Floor 
Nashville, TN  37203                TIMOTHY F. BEHAN
                                    Assistant Attorney General
                                    2nd Floor, Cordell Hull Building
                                    425 Fifth Avenue North 
                                    Nashville, TN  37243

                                    VICTOR S. JOHNSON, III
                                    District Attorney General

                                    NICHOLAS A. BAILEY
                                    Asst. District Attorney General
                                    Washington Square 
                                    222 Second Ave. North, Suite 500
                                    Nashville, TN  37201-1649                          

Judge:WOODALL

First Paragraph:

The Petitioner, Arthur R. Turner, appeals as of right the trial
court's dismissal of his petition of post-conviction relief. 
Petitioner raises the following two issues in this appeal:  (1)
whether he received the effective assistance of counsel and (2)
whether it was plain error for the trial court to run his aggravated
rape sentence consecutive to his other sentences.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE
vs.
JAMIE WALKER

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
Union City, TN  38282-0542          CLINTON J. MORGAN
                                    Assistant Attorney General
                                    425 Fifth Ave. N., 2d Floor
                                    Nashville, TN  37243-0493

                                    ELIZABETH T. RICE
                                    District Attorney General

                                    MARK DAVIDSON
                                    Asst. District Attorney General
                                    P.O. Box 562, 302 Market St.
                                    Somerville, TN 38068                          

Judge:WITT

First Paragraph:

The defendant, Jamie Walker, entered best-interest guilty pleas to
three counts of statutory rape in the Lauderdale County Circuit Court.
 With the consent of the state and the trial court, he reserved the
certified question of whether the trial court correctly determined he
was competent to stand trial.  Thereafter, he perfected his appeal to
this court, and that certified question is now before us for
consideration.  After studying the record and the briefs of the
parties, we have determined (1) that the certified question is
properly before us, and (2) the trial court did not abuse its
discretion in ruling the defendant was competent to stand trial. 
Accordingly, we affirm the judgment of the trial court.

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

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