TBALink Opinion-Flash

November 23, 1998 -- Volume 4 -- Number 172

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):
02-New Opinion(s) from the Tennessee Supreme Court
00-New Opinion(s) from the Tennessee Supreme Court Workers Comp Panel
01-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
06-New Opinion(s) from the Tennessee Court of Appeals
04-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



STATE OF TENNESSEE
VS.
CHRISTA GALE PIKE

Court:TSC

Judge:PER CURIAM

First Paragraph:

A petition for rehearing has been filed on behalf of appellant.  After
consideration of the same, the Court is of the opinion that the
petition should be and the same is hereby denied at the cost of
appellant.

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


STATE OF TENNESSEE
VS.
PAUL DENNIS REID

AND 

STATE OF TENNESSEE
VS.
CHRISTOPHER DAVIS

Court:TSC

Attorneys:    


FOR APPELLANT REID:             FOR STATE OF TENNESSEE:
J. Michael Engle                John Knox Walkup
Asst Metro Public Defender      Attorney General & Reporter
Nashville, Tennessee
                                Michael E. Moore
Michael R. Jones                Solicitor General
Public Defender                         
19th Judicial District          Kathy Morante
Clarksville, Tennessee          Assistant District Attorney General
                                Nashville, Tennessee
FOR APPELLANT DAVIS:
Hershell Koger                  Victor S. Johnson, III 
Pulaski, Tennessee              District Attorney General 
                                20th Judicial District
Niles Nimmo
Nashville, Tennessee            John Wesley Carney, Jr. 
                                District Attorney General
                                19th Judicial District
                                            
FOR AMICUS CURIAE:
Tennessee Association Criminal Defense Lawyers
Jefferson T. Dorsey
Nashville, Tennessee                      

Judge:DROWOTA

First Paragraph:

We granted and consolidated the applications for permission to appeal
filed on behalf of Paul Dennis Reid and Christopher Davis to consider
the following three important questions of criminal procedure.

1. Whether a defendant must give pre-trial notice of the intent to
introduce expert testimony of his or her mental condition as
mitigation at the sentencing phase of a capital trial?

2. If so, whether, at the request of the State, the trial court may
order a mental examination of the defendant by a mental health expert
selected by the State?

3.  If so, what procedures should be followed in connection with this
notice and examination?

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

IN RE: AMENDMENT TO RULE 13, RULES OF THE SUPREME COURT OF TENNESSEE    

Court:TSC - Rules
                  
Judge:ANDERSON

First Paragraph:

Rule 13 of the Rules of the Supreme Court of Tennessee is hereby
amended by adding the underlined portion to S 6(a):

URL:http://www.tba.org/tba_files/TSC_Rules/R13audit_ord.WP6
Opinion-Flash

JAMES M. BEAM and JOYCE A. BEAM, Individually and as Next of Kin of
KAREN H. BEAM, Deceased, and Next Friend of LANCE B. BEAM, A Minor
VS.
UNITED SERVICES AUTOMOBILE ASSOCIATION, and/or USAA CASUALTY INSURANCE
COMPANY, and/or USAA GENERAL INDEMNITY COMPANY

Court:TCA

Attorneys:     

FRANCIS A. CAIN and BEVERLY DEAN NELMS, Frantz, McConnell, & Seymour,
LLP, Knoxville, for Appellants.

MARK E. FLOYD, Pryor, Flynn, Priest & Harber, Knoxville, for
Appellees.

Judge:MCMURRAY

First Paragraph:

This appeal involves the determination of whether there is insurance
coverage on three separate insurance policies -- two automobile
policies and a personal umbrella policy.  The plaintiffs, James and
Joyce Beam, had purchased insurance coverage from the defendant,
United Services Automobile Association (USAA).  The plaintiffs, whose
daughter was killed in an automobile accident, filed a declaratory
action against USAA seeking a judgment as to whether uninsured
motorist (UM) coverage was included under their personal umbrella
policy and whether USAA had acted in "bad faith" by denying coverage. 
In its answer, USAA denied that the plaintiffs could recover under
both automobile policies and under their personal umbrella policy. 
With court approval, the plaintiffs amended their complaint to allege
that the two automobile policies could be "stacked," thereby allowing
them a greater recovery.

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

JAN LORENA NEWSOME
VS.
QUALITY BODY SHOP, INC.

Court:TCA

Attorneys:    

JOHN M. FOLEY OF KNOXVILLE FOR APPELLANT

DAIL R. CANTRELL OF CLINTON FOR APPELLEE                      

Judge:GODDARD

First Paragraph:

Quality Body Shop, Inc., appeals a judgment rendered against it in
favor of Jan Lorena Newsome in the amount of $30,000,  The damages
were awarded as a result of a jury finding that Quality Body Shop,
Inc., violated the Tennessee Consumer Protection Act in connection
with the repair of her wrecked automobile.

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

TRUDY R. SWATZELL PARMAN
VS.
MARK ROBERT SWATZELL and COVEY DIANE KELLEY SWATZELL

Court:TCA

Attorneys: 

TRUDY R. SWATZELL PARMAN, Pro Se

JACK H. BURKHARD OF GREENEVILLE FOR APPELLEES                         

Judge:GODDARD

First Paragraph:

Trudy Rose Swatzell, now Parman, prosecuting this case--both below and
on appeal--pro se, filed a complaint on April 6, 1998, which is styled
"Petition to Correct Adoption Agreement" against her former husband,
Mark Robert Swatzell and his present wife, Covey Dianne Kelly
Swatzell.  Ms. Swatzell had adopted the children of Ms. Parman and Mr.
Swatzell--Jessica Nicole Swatzell (d.o.b. 7/2/81), and Chuck Robert
Swatzell (d.o.b. 5/23/83)--by a decree filed in February 1992.

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

C. M. REAGAN
VS.
TROY MALONE, SANDRA MALONE and DAN CONNELLY

Court:TCA

Attorneys: 

MARVIN BERKE OF CHATTANOOGA FOR APPELLANT DAN CONNELLY

SCOTT N. BROWN, JR., and SCOTT A. MILLER OF CHATTANOOGA FOR APPELLEE                         

Judge:GODDARD

First Paragraph:

This is an appeal by Dan Connelly from an order entered by the
Chancellor pursuant to a motion by C. M. Reagan, seeking to discover
assets of Mr. Connelly for the purpose of satisfying a judgment
rendered in Mr. Reagan's favor.

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

JERRY LYNN SHORTER
VS.
MARGARET MAE SHORTER

Court:TCA

Attorneys: 

JERRY LYNN SHORTER, pro se.

DENISE TERRY STAPLETON, TERRY, TERRY & STAPLETON, Morristown, for
Appellant.

Judge:FRANKS

First Paragraph:

In this divorce action the Trial Court decreed the parties' separate
marital property, divided the marital estate, and granted the parties
a divorce pursuant to T.C.A. S36-4-129(b). The wife has appealed and
raises these issues: 1. The Court erred in not awarding alimony.

2.  The Court erred in not equitably dividing the marital estate;
and

3.  The Court erred in not making an equitable distribution of the
husband's military retirement.

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

WESTWOOD GROUP PARTNERSHIP
VS.
DAVID L. MOORE, M.D.

Court:TCA

Attorneys: 

BARBARA W. CLARK, Moore & Clark, P.C., Knoxville, for Appellant.


DAIL R. CANTRELL, Cantrell, Pratt & Varsalona, Clinton, for Appellee.                         

Judge:MCMURRAY

First Paragraph:

This appeal involves a commercial lease dispute between the Westwood
Group Partnership (the landlord) and Dr. David L. Moore (the tenant). 
Each party sued the other for breach of the lease agreement.  After a
bench trial, the trial court ruled that the tenant breached the lease
by not paying the rent, and awarded the landlord rent payments, late
fees and attorney's fees in the total amount of $5,390.00.  The tenant
appeals this ruling.  We affirm the judgment of the trial court and
agree with the appellee that this is a frivolous appeal.

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

GENE H. CRANK
VS.
STATE OF TENNESSE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:
    
    GENE H. CRANK, Pro Se
    #108161
    South Central Correctional Center
    Apollo AA-225
    P.O. Box 279
    Clifton, TN  38425-0279

FOR THE APPELLEE:
    
    JOHN KNOX WALKUP
    Attorney General and Reporter
    
    KAREN M. YACUZZO
    Assistant Attorney General
    Cordell Hull Building, 2nd Floor
    425 Fifth Avenue North
    Nashville, TN  37243-0493
    
    VICTOR S. JOHNSON III
    District Attorney General
    222 - 2nd Avenue North
    Washington Square, Suite 500
    Nashville, TN  37201-1649                         

Judge:RILEY

First Paragraph:

Petitioner appeals the summary dismissal of his petition for writ of
habeas corpus.  The petitioner claims his indictment for aggravated
rape and first degree burglary was void for failing to set forth the
requisite mens rea.  However, the record does not contain the
indictment at issue, thereby precluding the Court from conducting an
adequate review.  Nevertheless, assuming that the indictment reads as
claimed by petitioner, we find no merit to his claim and AFFIRM the
trial court's dismissal of the habeas corpus petition.

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

STATE OF TENNESSEE
VS.
DENNIS R. GILLILAND

WITH CONCURRING OPINION

Court:TCCA

Attorneys: 

FOR THE APPELLANT:
    
    GUY T. WILKINSON
    District Public Defender
    24th Judicial District
    117 North Forrest Avenue
    P.O. Box 663
    Camden, Tennessee 38320
    
    VICKI S. SNYDER
    Assistant Dist. Public Defender
    24th Judicial District

FOR THE APPELLEE:
    
    JOHN KNOX WALKUP
    Attorney General and Reporter
    
    JOHN P. CAULEY
    Assistant Attorney General
    Cordell Hull Building, 2nd Floor
    425 Fifth Avenue North
    Nashville, TN  37243-0493
    
    DAN M. ALSOBROOKS
    District Attorney General
    
    JAKE LOCKERT
    SUZANNE M. LOCKERT
    Assistant Dist. Attorneys General
    Court Square, P.O. Box 580
    Charlotte, TN 37036-0580                         

Judge:RILEY

First Paragraph:

The defendant, Dennis R. Gilliland, appeals as of right his conviction
for felony murder by a Dickson County jury.  He received a sentence of
life without the possibility of parole.  The defendant raises the
following issues on appeal:

(1)  the trial court erred in admitting testimony regarding the
defendant's involvement in two (2) homicides three (3) weeks before
the instant offense;

(2)  the trial court erred in admitting into evidence currency found
outside the Dickson County police station;

(3)  the defendant was unfairly prejudiced when he appeared before the
jury in handcuffs;

(4)  the state did not prove venue by a preponderance of the evidence;

(5)  the trial court erred in admitting into evidence certain personal
effects of the victim without requiring a proper chain of custody;

(6)  the evidence was insufficient to justify the guilty verdict;

(7)  the trial court erred by ruling that the state's withdrawal of
its intent to seek the death penalty did not include a withdrawal of
its intent to seek life without parole;

(8)  the trial court considered improper factors in sentencing the
defendant to life without parole; and

(9)  newly discovered evidence warrants a new trial.

The defendant's conviction is affirmed, but the case is remanded for
resentencing.

URL:http://www.tba.org/tba_files/TCCA/gillildr_opn.WP6
Opinion-Flash
CONCURRING OPINION:
URL:http://www.tba.org/tba_files/TCCA/gillilan_con.WP6
Opinion-Flash

WILLIAM C. HIGHTOWER
VS.
STATE OF TENNESSEE

Court:TCCA

Judge:RILEY

First Paragraph:

Appellant, William C. Hightower, appeals the trial court's denial of
his motion to correct an illegal sentence.  The trial court previously
revoked his probation and ordered an effective eight-year sentence to
run consecutively to a fifteen-year Alabama sentence.

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

STATE OF TENNESSEE
VS.
TURNER P. WILLIAMS

Court:TCCA

Attorneys:    

FOR THE APPELLANT:          FOR THE APPELLEE:

CHARLES R. RAY              JOHN KNOX WALKUP
211 Third Avenue North      Attorney General and Reporter
P. O. Box 198288
Nashville, TN  37219-8288   LISA A. NAYLOR
                            Assistant Attorney General
JAMES BRYAN LEWIS           425 Fifth Avenue North
217 Second Avenue North     Nashville, TN  37201-1649
Nashville, TN  37201-1649
                            VICTOR S. JOHNSON
                            District Attorney General

                            GEORGE BONDS
                            Assistant District Attorney
                            Washington Square, Suite 500
                            Nashville, TN  37201-1649                         

Judge:SMITH

First Paragraph:

On May 19, 1997, a Davidson County jury found Appellant, Turner
Williams, guilty of Driving Under the Influence of an Intoxicant,
first offense. The trial court sentenced Appellant to eleven months
and twenty-nine days incarceration, all suspended except for two days,
the remainder to be served on probation. Appellant filed a timely
notice of appeal, raising two issues on appeal: (1) Whether the trial
court erred in admitting into evidence highly prejudicial statements
made by Appellant which were not probative of guilt and were allegedly
introduced for the purpose of inflaming and prejudicing the jury in
violation of Rule 403 of the Tennessee Rules of Evidence; and (2)
Whether the trial court erred in refusing to suppress the results of a
field sobriety test where the officer gave the test under such adverse
conditions that the results were invalid and should not have been
presented to the jury.

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

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


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