TBALink Opinion-Flash

November 10, 1998 -- Volume 4 -- Number 164

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 Opinion(s) from the Tennessee Supreme Court
02-New Opinion(s) from the Tennessee Supreme Court Workers Comp Panel
00-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04-New Opinion(s) from the Tennessee Court of Appeals
06-New Opinion(s) from the Tennessee Court of Criminal Appeals
00-New Judicial Ethics Opinion(s)
00-New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Lucian T. Pera
Editor-in-Chief, TBALink



DOROTHY MARABLE
VS.
KEY INDUSTRIES, INC. and TRAVELERS INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellants:                 For Appellee:

Sean Antone Hunt                Stacy A. Turner
Spicer, Flynn & Rudstrom        Clarksville, Tennessee
Nashville, 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 employer, Key, and
its insurer, Travelers, insist the chancellor erred in (1) awarding
benefits as a percentage to the body as a whole, (2) making an award
in excess of six times the highest medical impairment rating and (3)
awarding benefits based on one hundred percent to the body as a whole.
 As discussed below, the panel has concluded the award should be
modified down to one based on forty-eight percent to the body as a
whole.

Our review is de novo upon the record of the trial court, accompanied
by a presumption of correctness of the findings of fact, unless the
preponderance of the evidence is otherwise.  Tenn. Code Ann. section
50-6-225(e)(2).  Conclusions of law are subject to de novo review on
appeal without any presumption of correctness.  Spencer v. Towson
Moving and Storage, Inc., 922  S.W.2d  508  (Tenn. 1996).

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

HENRY A. SHERRILL
VS.
PULASKI RUBBER COMPANY

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:              For the Appellee:

Richard C. Mangelsdorf, Jr.     Raymond W. Fraley, Jr.
Leitner, Williams, Dooley &     Johnny D. Hill, Jr.
  Napolitan, PLLC               205 East Market Street
2300 First American Center      P.O. Box 572
Nashville, TN  37238            Fayetteville, TN  37334                         

Judge:BYERS

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. The trial
judge found the plaintiff was permanently disabled and awarded a lump
sum judgment of $81,953.20 on November 3, 1997. The defendant says the
record does not support the finding that the lump sum award is proper
because the record fails to show that the lump sum award is in the
plaintiff's best interest or that he can wisely manage the lump sum
payment. We remand this case to the trial court for further
proceedings.

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

LUCY L. BOND
VS.
BELLE MEADE FUND PARTNERS, L.P.; BRANCH PROPERTY, L.P.,
BRANCH PROPERTY LTD. PARTNERSHIP

Court:TCA

Attorneys: 

Keith Jordan, BPR #3000
222 Second Avenue, North
Suite 360-M
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFF/APPELLANT


M. Bradley Gilmore, #13804
PARKER, LAWRENCE, CANTRELL & DEAN
200 Fourth Avenue North
Fifth Floor
Nashville, Tennessee 37219
ATTORNEY FOR DEFENDANTS/APPELLEES
                         

Judge:KOCH

First Paragraph:

The plaintiff sued for injury suffered when she stepped into a hole in
the asphalt surface of a parking lot provided for customers of Kroger
Company.  Kroger was dismissed by nonsuit, and the remaining
defendants were dismissed by summary judgment.  Plaintiff appealed and
presented the following issue: I.   Whether a genuine issue of
material fact has been raised by the plaintiff/appellant, so as to
warrant this cause to be tried on its merits.

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

CATHY P. McMANAMAY
VS.
CHARLES T. McMANAMAY

WITH CONCURRING OPINION

Court:TCA

Attorneys:   

Gregory D. Smith
One Public Square, Suite 321
Clarksville, Tennessee 37040
ATTORNEY FOR PLAINTIFF/APPELLEE

Mark A. Rassas
Julia P. North
RASSAS & RASSAS
P.O. Box 361
Suite 104, Glenn Building
Clarksville, Tennessee 37040
ATTORNEYS FOR DEFENDANT/APPELLANT                       

Judge:TODD

First Paragraph:

In this divorce case, the defendant husband has appealed from a decree
awarding the plaintiff a divorce on grounds of irreconcilable
differences and dividing the marital estate.  The husband has
presented the issues in the following form:

1.  The Trial Court rushed the trial, making it difficult for the
defendant/appellant to fully present his case.

2.  The Trial Court erred by awarding the plaintiff/appellee an
interest in the defendant/appellant's separate property.

3.  The Trial Court erred in refusing to make any division in
marital property that was held solely in the plaintiff/appellee's
name.

4.  The Trial Court erred in awarding the divorce to the
plaintiff/appellee despite overwhelming grounds in favor of the
defendant/appellant.

URL:http://www.tba.org/tba_files/TCA/mcmancp_opn.WP6

CONCURRING OPINION:
URL:http://www.tba.org/tba_files/TCA/mcmancp_con.WP6
Opinion-Flash

GARY WAYNE ROBERTSON
VS.
LORI VANHOOSER ROBERTSON

Court:TCA

Attorneys:  

For Appellant                     For Appellee

LEROY PHILLIPS, JR.               SHERRY B. PATY
Phillips & Caputo                 Paty, Rymer & Ulin, P.C.
Chattanooga, Tennessee            Chattanooga, Tennessee                        

Judge:SUSANO

First Paragraph:

This is a divorce case.  The trial court granted Lori Vanhooser
Robertson ("Wife") a divorce on the ground set forth at T.C.A. S
36-4-101(3); awarded the parties joint custody of their 16-year-old
son; ordered Gary Wayne Robertson ("Husband") to pay Wife child
support of $387 per month plus 21% of part of Husband's future
increases in net income; awarded Wife rehabilitative alimony of $250
per month for 12 months, beginning with the month of October, 1997;
divided the parties' property and debts; denied Wife's request for
attorney's fees; and made other decrees not relevant to a resolution
of the issues now before us.

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

SI J. WILLIAMS
VS.
MARY C. WILLIAMS

WITH CONCURRING OPINION

Court:TCA

Attorneys:   

V. Michael Fox, #13875
First American Center 
20th Floor
315 Deaderick Street
Nashville, Tennessee 37238
ATTORNEY FOR PLAINTIFF/COUNTER-DEFENDANT/APPELLEE

Carol L. Soloman, #6649
Casey Moreland, #11069
Washington Square, Suite 400
214 Second Avenue, North
Nashville, Tennessee 37201
ATTORNEYS FOR DEFENDANT/COUNTER-PLAINTIFF/APPELLANT                       

Judge:TODD

First Paragraph:

In this divorce case, Mary C. Williams, hereafter "wife" has appealed
from the judgment of the Trial Court awarding her a divorce from Si J.
Williams, hereafter "husband," custody, child support, alimony,
insurance, fees and division of property.

URL:http://www.tba.org/tba_files/TCA/williams_opn.WP6

CONCURRING OPINION:
URL:http://www.tba.org/tba_files/TCA/william2_con.WP6
Opinion-Flash

RICHARD CALDWELL
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:
    
    DAVID C. STEBBINS
    330 South High Street
    Columbus, OH 43215
    
    JOHN G. OLIVA
    601 Woodland Street
    Nashville, TN 37206

FOR THE APPELLEE:
    
    JOHN KNOX WALKUP
    Attorney General and Reporter
    
    MARVIN E. CLEMENTS, JR.
    Assistant Attorney General
    Cordell Hull Building, 2nd Floor
    425 Fifth Avenue North
    Nashville, TN  37243-0493
    
    JAMES G. WOODALL
    District Attorney General
    
    ALFRED L. EARLS
    Assistant District Attorney General
    225 Martin Luther King Dr.
    P.O. Box 2825
    Jackson, TN 38302-2825                         

Judge:RILEY

First Paragraph:

The petitioner, Richard Caldwell, appeals the trial court's dismissal
of his second petition for post-conviction relief.  The
post-conviction court dismissed the petition without an evidentiary
hearing, finding the petition barred by the statute of limitations and
the issues either previously determined or waived.  For reasons
outlined below, the judgment of the trial court is  AFFIRMED.

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

STATE OF TENNESSEE
VS.
JOE E. JACKSON

Court:TCCA

Attorneys:     

FOR THE APPELLANT:                  FOR THE APPELLEE:

A.C. WHARTON                        JOHN KNOX WALKUP
Shelby County Public Defender       Attorney General & Reporter

DIANNE THACKERY                     CLINTON J. MORGAN   
Assistant Public Defender           Counsel for the State
(At trial)                          425 Fifth Ave. North
                                    2d Floor, Cordell Hull Bldg.
W. MARK WARD                        Nashville, TN 37243-0493    
Assistant Public Defender               
(On appeal)
Suite 2-01, 201 Poplar Ave.         WILLIAM L. GIBBONS
Memphis, TN 38103                   District Attorney General
                        
                                    DAVID HENRY
                                    Assistant District Attorney General
                                    201 Poplar Ave., Suite 301
                                    Memphis, TN 38103
                     

Judge:WITT

First Paragraph:

The defendant, Joe E. Jackson, appeals from his convictions in the
Shelby County Criminal Court for unlawfully and knowingly obtaining a
motor vehicle valued at more than a thousand dollars but less than ten
thousand dollars and for unlawfully and knowingly exercising control
over the same vehicle. The trial court entered judgment only on the
first count of the indictment and sentenced the defendant  to serve
twelve years in the Department of Correction as a career offender.  In
this appeal, the defendant contends (1) that the evidence presented at
trial is insufficient to identify him beyond a reasonable doubt as the
person who committed the offense and (2) that the jury's dual findings
of guilt violate double jeopardy principles.  We affirm the
defendant's conviction for theft under the first count of the
indictment and dismiss the second count.

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

LUTHER S. LUTEN
VS.
STATE OF TENNESSEE

Court:TCCA

Judge:RILEY

First Paragraph:

In this post-conviction matter, the petitioner originally pled guilty
to two (2) counts of robbery, one (1) count of attempted robbery, and
three (3) counts of simple assault.  He received an effective sentence
of eight (8) years as a Range II, multiple offender. The petitioner
filed a pro se petition for post-conviction relief.  The primary
ground was ineffective assistance of counsel.  The petitioner claimed
his trial counsel failed to investigate available defenses, including
an alibi defense, and failed to interview witnesses.  He further
contended his guilty plea was involuntary.

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

THOMAS EDWARD MURPHY, JR.
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

For the Petitioner          For the Respondent

Andrew S. Johnston          John Knox Walkup
108 E. Court Square         Attorney General and Reporter
Somerville, TN 38068                
                            Clinton J. Morgan
                            Assistant Attorney General
                            425 Fifth Avenue South
                            Nashville, TN 37243-0493
                            
                            Elizabeth T. Rice
                            District Attorney General
                            302 Market Street
                            Somerville, TN 38068-1600                        

Judge:WEDEMEYER

First Paragraph:

The petitioner appeals the trial court's dismissal of his petition for
post-conviction relief.  The petitioner was originally convicted of
the second degree murder of his daughter and was sentenced to eighteen
years imprisonment.  State v. Thomas Edward Murphy, Jr., No.
02C01-9502-CC-00032 (Tenn. Crim. App., June 28, 1996), perm. to app.
denied, (Tenn., Dec. 23, 1996).  The petition filed below challenges
various aspects of counsel's effectiveness, prosecutorial misconduct
and trial court errors.  After conducting a hearing, the
post-conviction court found that the petitioner received effective
assistance of counsel.  In the order outlining its findings and
conclusions, the trial court did not specifically address the other
claims raised in the petition.

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

STATE OF TENNESSEE
VS.
MICHAEL AARON SCOTT, a/k/a ERIN SCOTT

Court:TCCA

Attorneys: 

FOR THE APPELLANT:      FOR THE APPELLEE:

Dwayne D. Maddox, III   John Knox Walkup
19695 East Main Street  Attorney General & Reporter
P. O. Box 827           425 Fifth Avenue, North
Huntingdon, TN  38344   Nashville, TN  37243-0493

                        Marvin E. Clements, Jr.
                        Assistant Attorney General
                        425 Fifth Avenue, North
                        Nashville, TN  37243-0493

                        G. Robert Radford
                        District Attorney General
                        111 Church Street, P. O. Box 686
                        Huntingdon, TN  38344-0686

                        Eleanor Cahill
                        Assistant District Attorney General
                        111 Church Street, P. O. Box 686
                        Huntingdon, TN  38344-0686                         

Judge:LAFFERTY

First Paragraph:

The appellant, Michael Aaron Scott, referred herein as the defendant,
appeals as a matter of right from a judgment entered by the Carroll
County Circuit Court as a result of a jury finding him guilty of sale
of cocaine and imposing a fine of $10,000.  In his single appellate
issue, the defendant asks whether there was sufficient credible
evidence to support a conviction in this case as a matter of law. 
After a review of the evidence in this record, the briefs of all
parties, and the applicable law, we find there was sufficient evidence
to support the defendant's conviction and affirm the trial court's
judgment.

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

JESSE LEVENT THARPE
VS.
STATE OF TENNESSEE

Court:TCCA

Judge:RILEY

First Paragraph:

The petitioner appeals the trial court's denial of post-conviction
relief.  He previously pled guilty to eight (8) counts of aggravated
robbery and received an agreed effective sentence of sixteen (16)
years as a Range I, standard offender.

Petitioner contends that he was induced to plead guilty due to the
ineffective assistance of counsel.  He testified trial counsel failed
to adequately investigate, failed to properly research the law and
erroneously told him that sixteen (16) years was the minimum sentence
for aggravated robbery.  Trial counsel's testimony contradicted the
petitioner's testimony in all material respects as did the affidavit
signed by the petitioner on the date of the guilty plea.

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


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