TBALink Opinion-Flash

September 30, 1998 -- Volume #4 -- Number #140

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):
01-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
05-New Opinons From TCA
09-New Opinons From TCCA

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Editor-in-Chief, TBALink


WIN MYINT and wife PATTI K. MYINT
VS.
ALLSTATE INSURANCE COMPANY

Court:TSC

Attorneys: 

For Appellants:         For Appellee:

JOSEPH H. JOHNSTON      BARRY FRIEDMAN
Nashville, TN           PAIGE WALDROP MILLS
                        JOHN D. SCHWALB
                        Nashville, TN

                        JON L. FLEISCHAKER
                        Louisville, KY

                        For Amicus Curiae:

                        EDWARD K. LANCASTER
                        Columbia, TN
                        Tennessee Farmers Mutual Ins. Co.

                        J. RICHARD LODGE
                        E. CLIFTON KNOWLES
                        Nashville, TN
                        State Farm Mutual Automobile Insurance
                         Company

                        THOMAS H. PEEBLES, III
                        G. BRIAN JACKSON
                        Nashville, TN
                        National Association of Independent Insurers
                         and The Alliance of American Insurers

                        JOHN KNOX WALKUP
                        STEPHEN C. KNIGHT
                        Nashville, TN
                        State of Tennessee                         

Judge:BIRCH

First Paragraph:

In this cause, the insuror refused to pay a claim under a policy of
insurance.  The insured contends that such refusal constitutes an
"unfair or deceptive act or practice," in violation of the Consumer
Protection Act, Tenn. Code Ann. SS 47-18-101, et seq.  In contrast,
the insuror insists that Tenn. Code Ann. S 56- 7-105, commonly known
as the "bad faith statute," is the exclusive remedy for the bad faith
denial of an insurance claim.  Because Title 56, Chapters 7 and 8 of
the Tennessee Code comprehensively regulates the insurance industry,
the insuror insists that the acts and practices of an insurance
company are never subject to the Consumer Protection Act.

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

WAYNE BRAYFIELD and DON
CHADWELL, INDIVIDUALLY AND
d/b/a PLEASANTVILLE STUDIO TWO
VS.
KENTUCKY NATIONAL INSURANCE COMPANY

Court:TCA

Attorneys:  

LOUISE R. FONTECCHIO
Bruce, Weathers, Corley, Dughman & Lyle
2075 First American Center
315 Deaderick Street
Nashville, Tennessee 37238-0275
ATTORNEY FOR PLAINTIFFS/APPELLANTS

GARY A. BREWER
PARKS T. CHASTAIN
Brewer, Krause, Brooks & Mills
Suite 2600, The Tower
611 Commerce Street
P.O. Box 23890
Nashville, Tennessee 37202-3890
ATTORNEY FOR THE DEFENDANT/APPELLEE                        

Judge:BUSSART

First Paragraph:

This is an appeal by plaintiffs/appellants, Wayne Brayfield and Don
Chadwell, from a jury verdict and order of the trial court  awarding 
defendant/ appellee, Kentucky National Insurance Company, $64,754.54. 
Appellants contend any misrepresentations were immaterial as a matter
of law, the trial court incorrectly instructed the jury, Appellee's
counsel made improper statements during his closing argument, errors
committed during voir dire tainted the jury, and the trial court
allowed inadmissable evidence.  The pertinent facts are as follows.

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

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
                         
Judge:TODD

First Paragraph:

The appellees have filed a petition asking the Court to rule that the
appeal in this case was frivolous.  We find that the appeal was not
frivolous and overrule the petition. It is therefore ordered that the
petition be overruled.

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

ENOCH GEORGE, Sheriff of Maury County, Tennessee
VS.
ED HARLAN, County Executive of Maury County, Tennessee

Court:TCA

Attorneys:  

Robert L. Holloway, Jr., #6535
FLEMING, HOLLOWAY, FLYNN & SANDS
207 West 8th Avenue
Columbia, Tennessee 38401
ATTORNEY FOR PLAINTIFF/APPELLEE


William H. Dale, Jr.
611 North Main Street
Columbia, Tennessee 38401

Thomas W. Hardin, #2873
HARDIN & PARKES
102 West 7th Street
Columbia, Tennessee 38401
ATTORNEYS FOR DEFENDANT/APPELLANT                        

Judge:TODD

First Paragraph:

The County Executive of Maury County has appealed from a judgment of
the Circuit Court of Maury County authorizing the Sheriff of Maury
County to employ additional assistants and to increase the wages of
some existing assistants.

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

AMY L. JOHNSON
VS.
HAROLD G. JOHNSON

Court:TCA

Attorneys:  

Curtis M. Lincoln, Hendersonville, Tennessee
Attorney for Defendant/Appellant.

Robert G. Ingrum, PHILLIPS & INGRUM, Gallatin, Tennessee
Attorney for Plaintiff/Appellee.                        

Judge:FARMER

First Paragraph:

This is a divorce case.  Harold G. Johnson (Husband) and Amy L.
Johnson (Wife) were married on October 22, 1988 when he was 47 and she
was 20 years old.  During the marriage, the parties adopted a son,
Justin, born January 11, 1991.  In April 1997, the trial court entered
a final decree declaring the parties divorced pursuant to T.C.A. S
36-4-129.  Husband has appealed from the final decree, challenging the
correctness of the trial court's decisions regarding child custody,
alimony and classification and division of the marital estate.  For
the reasons hereinafter expressed, we affirm.

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

ROZANNE F. WRIGHT (FOLK-SCHMIDT)
VS.
JAN H. SCHMIDT

Court:TCA                          

Judge:HIGHERS

First Paragraph:

Appellant has filed a petition to rehear, which, after due
consideration, is respectfully denied.

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

STATE OF TENNESSEE
VS.
EDGAR ALLEN ANDERSON

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

MICHAEL R. JONES            JOHN KNOX WALKUP
District Public Defender    Attorney General & Reporter
110 Public Square               
Springfield, TN 37172       CLINTON J. MORGAN
                            Counsel for the State
                            425 Fifth Ave. North
                            2nd Floor, Cordell Hull Bldg.
                            Nashville, TN. 37243-0493

                            JOHN WESLEY CARNEY, JR.
                            District Attorney General
                            204 Franklin St., Suite 300
                            Clarksville, TN 37040-3420

                            DENT MORRISS
                            Asst. Dist. Attorney General
                            500 So. Main St.
                            Springfield, TN 37172                         

Judge:WITT

First Paragraph:

The defendant, Edgar Allen Anderson, appeals pursuant to Rule 3 of the
Tennessee Rules of Appellate Procedure from his conviction for
aggravated burglary.  Appellant was tried before a jury, convicted,
and sentenced by the trial court to serve five years as a Range I,
Standard Offender.

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

STATE OF TENNESSEE
VS.
AARON COOPER

Court:TCCA

Attorneys:   

FOR THE APPELLANT:          FOR THE APPELLEE:

David A. Collins            John Knox Walkup
Attorney at Law             Attorney General & Reporter 
211 Printers Alley Bldg.
4th Floor
Nashville, TN 37201         Daryl Brand
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN 37243-0493

                            Victor S. (Torry) Johnson III
                            District Attorney General

                            Nicholas Bailey
                            Assistant District Attorney General
                            222 2nd Avenue North
                            Washington Square Building
                            Nashville, TN 37201                       

Judge:SUMMERS

First Paragraph:

In November 1996, Aaron Cooper, the appellant, was convicted by a jury
of aggravated robbery in the Davidson County Criminal Court.  The
trial court sentenced him to eight years in the Department of
Correction as a Range I standard offender.  The appellant raises the
following issues for our review: (1) whether Tennessee Code Annotated
S 39-13-402(a)(1) (1991) is unconstitutionally vague and (2) whether
the evidence is sufficient to support his conviction.  The judgment of
the trial court is affirmed.

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

STATE OF TENNESSEE
VS.
JERRY HUSKINS

Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:

JOHN KNOX WALKUP                DON DICKERSON
Attorney General & Reporter     Attorney at Law
                                310-D E. Broad St.
ELIZABETH B. MARNEY             Cookeville, TN  38501
Assistant Attorney General
425 Fifth Ave. N., 2d Floor
Nashville, TN  37243-0493

WILLIAM EDWARD GIBSON
District Attorney General

TONEY CRAIGHEAD
Asst. District Attorney General
145 S. Jefferson Ave.
Cookeville, TN  38501                        

Judge:WITT

First Paragraph:

We granted the state's petition for an interlocutory appeal in this
prosecution for driving under the influence to review the Putnam
County Criminal Court's order suppressing the results of the
defendant's blood alcohol test.  The trial court suppressed the
evidence because the law enforcement officer who ordered the test
failed to warn the defendant as required by Tennessee Code Annotated
section 55-10-406(a)(2)  that failure to give a sample would result in
suspension of the defendant's driver's license.  For the reasons that
follow, we find the trial court's ruling in error.  Accordingly, we
reverse the order suppressing the evidence and remand this matter to
the trial court for further proceedings consistent with this opinion.

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

CARL EUGENE JORDAN
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:
    

CARL EUGENE JORDAN, Pro Se      JOHN KNOX WALKUP
    (On Appeal)                 Attorney General & Reporter

DEANNA BELL-JOHNSON             LISA A. NAYLOR
211 Third Ave., North           Asst. Attorney General  
Nashville, TN  37201            425 Fifth Ave., North   
    (At Hearing)                Nashville, TN  37243
                            
                                VICTOR S. JOHNSON, III
                                District Attorney General
                
                                STEVE DOZIER
                                Asst. District Attorney General
                                Washington Square Bldg., Suite 500
                                222 Second Ave., North
                                Nashville, TN  37201-1649                         

Judge:PEAY

First Paragraph:

On January 23, 1981, the petitioner pled guilty to aggravated rape,
armed robbery, and second-degree murder.  He was then sentenced to
three concurrent forty year sentences.  On May 2, 1986, this Court
granted the petitioner post-conviction relief and vacated the guilty
plea on a finding that the trial court had failed to fully comply with
required procedure in a determination of whether the guilty plea was
made knowingly and voluntarily.  State v. Jordan, No. 85-265-111(Tenn.
Crim. App. at Nashville, May 2, 1986).

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

STATE OF TENNESSEE
VS.
JAMES ROY JERNIGAN

Court:TCCA

Attorneys:  

FOR THE APPELLANT:      FOR THE APPELLEE:

MICHAEL R. JONES        JOHN KNOX WALKUP
Public Defender         Attorney General & Reporter
110 Public Square
Springfield, TN 37172   LISA A. NAYLOR
                        Assistant Attorney General
                        Criminal Justice Division
                        425 Fifth Ave. North
                        2d Floor, Cordell Hull Bldg.
                        Nashville, TN 37243-0493    

                        JOHN WESLEY CARNEY, JR.
                        District Attorney General
                        204 Franklin St.
                        Suite 200
                        Clarksville, TN 37040-3420
                        
                        DENT MORRISS
                        Assistant District Attorney General
                        500 S. Main St.
                        Springfield, TN 37172                        

Judge:WITT

First Paragraph:

A jury in the Robertson County Circuit Court convicted the defendant,
James Roy Jernigan, of aggravated burglary, and the trial court
sentenced him to serve ten years in the Department of Correction as a
Range III, persistent offender.  The defendant now appeals his
conviction and sentence alleging that various acts of prosecutorial
misconduct denied him a fair trial and that the state failed to prove
beyond a reasonable doubt that he was eligible for sentencing as a
Range III, persistent offender.  After reviewing the record before us
and the applicable law, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE
VS.
GERALD D. LOVELACE,

Court:TCCA

Attorneys:   

FOR THE APPELLANT:              FOR THE APPELLEE:

GREGORY D. SMITH                JOHN KNOX WALKUP
Attorney at Law                 Attorney General & Reporter
One Public Square, Suite 321
Clarksville, TN  37040          GEORGIA BLYTHE FELNER
                                Counsel for the State
                                425 Fifth Ave. N., 2d Floor
                                Nashville, TN  37243-0493
    
                                JOHN WESLEY CARNEY, JR.
                                District Attorney General
    
                                WILLIAM CLOUD
                                Asst. District Attorney General
                                204 Franklin St., Suite 200
                                Clarksville, TN 37040
                       

Judge:WITT

First Paragraph:

The defendant, Gerald D. Lovelace, appeals from his convictions of two
counts of attempted second degree murder and one count of reckless
endangerment.  Lovelace received his convictions at the conclusion of
a jury trial in the Montgomery County Circuit Court.  The trial court
sentenced him to serve concurrent sentences of eleven years, six
months for each of his two attempted second degree murder convictions
and two years for his reckless endangerment conviction.  In this
direct appeal, Lovelace challenges the length of his effective
sentence.  After a review of the record and the briefs of the parties,
we affirm the judgment of the trial court.

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

STATE OF TENNESSEE
VS.
MICHAEL M. TAYLOR

Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:

MONTE D. WATKINS                JOHN KNOX WALKUP
Attorney at Law                 Attorney General & Reporter
176 Second Ave. N., Ste. 300
Nashville, TN  37201            LISA A. NAYLOR
                                Counsel for the State
                                425 Fifth Ave. N., 2d Floor
                                Nashville, TN  37243-0493
    
                                VICTOR S. JOHNSON, III
                                District Attorney General

                                LILA STATOM
                                Asst. District Attorney General
                                Washington Square, Ste. 500
                                222 Second Ave. N.
                                Nashville, TN  37201-1649                       

Judge:WITT

First Paragraph:

The defendant, Michael M. Taylor, appeals from the conviction of
second degree murder he received in the Davidson County Criminal Court
for the killing of Tuesdai Hayes.  Taylor is presently serving a
23-year sentence in the Department of Correction.  In this direct
appeal, he challenges the sufficiency of the convicting evidence, the
court's admission of rebuttal testimony of an unsequestered witness,
and the length of the sentence imposed.  After reviewing the record
and the parties' briefs and having heard oral arguments on the issues,
we find no error in the proceedings below and affirm the judgment of
the trial court.

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

JUAN PEREZ WALKER
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:   

FOR THE APPELLANT:                  FOR THE APPELLEE:

THOMAS H. MILLER                    JOHN KNOX WALKUP
(On Appeal)                         Attorney General & Reporter
Post Office Box 681662
Franklin, TN 37064                  CLINTON J. MORGAN
                                    Counsel for the State
MARTIN A. KOOPERMAN                 Criminal Justice Division
(At the Post-Conviction Hearing)    425 Fifth Ave. North
603 Woodland St.                    Nashville, TN 37243-0493    
Nashville, TN 37206
                                    VICTOR S. JOHNSON, III
                                    District Attorney General
                    
                                    PAM ANDERSON
                                    Assistant District Attorney General
                                    Washington Square, Suite 500
                                    222 2nd Ave. N.
                                    Nashville, TN 37201-1649                       

Judge:WITT

First Paragraph:

Juan Perez Walker, the petitioner, appeals pursuant to Rule 3 of the 
Tennessee Rules of Criminal Procedure from the trial court's dismissal
of his petition for post-conviction relief.  He contends that the
trial court erred in finding that his attorney had provided effective
assistance of counsel and that he knowingly and voluntarily entered
his guilty plea.

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

STATE OF TENNESSEE
VS.
SANFORD L. WILSON,

Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:

THOMAS H. MILLER                JOHN KNOX WALKUP
Attorney at Law                 Attorney General & Reporter
P.O. Box 681662
Franklin, TN  37068-1662        MARVIN E. CLEMENTS, JR.
                                Asst. Attorney General
                                425 Fifth Ave. N., 2d Floor
                                Nashville, TN  37243-0493
    
                                VICTOR S. JOHNSON, III
                                District Attorney General

                                DAN HAMM
                                Asst. District Attorney General
                                Washington Square
                                222 Second Ave. N., Ste. 500
                                Nashville, TN 37201-1649                        

Judge:WITT

First Paragraph:

The defendant, Sanford L. Wilson, appeals from his conviction of
felony reckless endangerment.  He received his conviction at the
conclusion of a jury trial in the Davidson County Criminal Court.  The
trial court imposed a two-year sentence.  In this direct appeal,
Wilson appeals the length and manner of service of that sentence. 
Having reviewed the record and the briefs of the parties, we find no
error of law requiring reversal and affirm the judgment of the trial
court.

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


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