February 08, 1999
Volume 5 -- Number 018

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink from Tennessee's three appellate courts.

This Issue (IN THIS ORDER):
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
06 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




E. L. EDWARDS, III, Nashville, for Appellant.

JEFFREY L. LEVY, Bruce, Weathers, Corley, Dughman & Lyle, Nashville,
for Appellee.


First Paragraph:

In this divorce case, Glenda Benning (wife) challenges the trial
court's award of permanent alimony to James Benning (husband).  After
the wife filed for divorce and the parties separated, the husband
moved into the same apartment with one Jaylene Deen.  On appeal, the
wife argues that the trial court erred in finding that the statutory
presumption found at T.C.A. S 36-5-101(a)(3) had been rebutted by the
evidence presented by the husband.  We affirm the judgment of the
trial court.


WILLIAM H. LANCE, EMMA LEE LANCE VS. LARRY H. STREET d/b/a STREET CONSTRUCTION Court:TCA Attorneys: Grant C. Glassford; Stokes & Bartholomew of Nashville For Plaintiffs-Appellants Warren M. Smith of Nashville For Defendant-Appellee Judge:CRAWFORD First Paragraph: This is a premises liability case. Plaintiffs-Appellants, William H. Lance and Emma Lee Lance, appeal the order of the trial court granting summary judgment to Defendant-Appellee, Larry H. Street d/b/a Street Construction. The facts as determined from the pretrial depositions of Lance and Street are basically undisputed. Lance is a real estate agent, and on March 22, 1996, was showing some clients houses in different subdivisions. The clients, while riding through the Tanglewood subdivision indicated interest in a house that was under construction with a "for sale" sign in the yard. The property was owned by Street and was under construction at the time. Lance did not have a listing for this particular property and the "for sale" sign in the yard indicated that the listing agent was Oscar Jones, Jr. Lance and his clients decided to enter the house in order to inspect, although there was no one else present on the property. It is customary for real estate agents to take clients onto property that is under construction, and Lance was familiar with potential dangers at construction sites. http://www.tba.org/tba_files/TCA/Lancewm_opn.WP6
ROBERT S. LIPMAN VS. FIRST NATIONAL BANK OF BOSTON and ALEXANDER H. McNEIL, J. VIRGINIA McNEIL, R & J KNOXVILLE, INC. Court:TCA Attorneys: Robert D. Tuke and Stephen K. Rush, Nashville, for Appellant. Paul C. Ney, Jr. and Leesa A. Hinson, Nashville, for Appellee. Judge:INMAN First Paragraph: The trial court granted the motion of defendant First National Bank of Boston ("First National") for summary judgment, which the plaintiff ("Lipman"] appeals, insisting that there are genuine issues of material fact. Lipman filed suit against Alex and Virginia McNeil (husband and wife), First National Bank of Boston, and R & J Knoxville, Inc., when a real estate limited partnership involving the McNeils as general partners and Lipman as one of a number of limited partners sold the real property it owned, resulting in the loss of Lipman's investment because the proceeds from the sale were insufficient to reimburse the partners. Lipman asserted that, in entering into a Settlement Agreement with First National and selling the partnership property, the McNeils had conspired with the bank to deprive him of his investment, and that the bank had induced the McNeils to breach their limited partnership agreement and/or the fiduciary duty they owed to him. http://www.tba.org/tba_files/TCA/Lipman_ca1.WP6
JAMES PRINCE, d/b/a BIG JIM, INC. VS. CHARLES CAMPBELL, Individually and d/b/a LIMOUSINES BY KC Court:TCA Attorneys: L. Bruce Peden of Columbia For Appellee Keith Jordan of Nashville For Appellant Judge:CRAWFORD First Paragraph: This appeal involves a motion to set aside a judgment. Defendant/cross-plaintiff, Charles Campbell (Campbell), appeals the judgment of the trial court awarding money damages to plaintiff/cross-defendant, James Prince (Prince). This case arose from a contract entered into between the parties in April 1995 in which Campbell agreed to transfer a limousine from his business to Prince in exchange for the opportunity to run Prince's "World Famous Stagecoach Lounge." Prince filed suit against Campbell for breach of contract and fraud in August 1995 alleging that Campbell failed to make lease payments on the property and refused to transfer the limousine agreed upon in the contract. Campbell's answer denied the material allegations and asserted a counterclaim for conversion, fraud, and breach of contract. http://www.tba.org/tba_files/TCA/Princej_opn.WP6
STATE OF TENNESSEE, ex rel, Doug Sizemore, Commissioner of Commerce and Insurance for the State of Tennessee VS. UNITED PHYSICIANS INSURANCE RISK RETENTION GROUP WITH CONCURRING OPINION Court:TCA Attorneys: RENARD A. HIRSCH, SR. ROBIN L. HARRIS Smith & Hirsch 619 Woodland Street Nashville, Tennessee 37206 ATTORNEYS FOR JEANNE BARNES BRYANT RECEIVER FOR UNITED PHYSICIANS INSURANCE RISK RETENTION GROUP MARTIN SIR 221 Fourth Avenue, North Fifth Floor Nashville, Tennessee 37219 ATTORNEY FOR APPELLANT, ESTATE OF BLENDORA ECHOLS Judge:BUSSART First Paragraph: This is an appeal from a memorandum and order of the chancellor affirming and adopting the Special Master's report pursuant to Rule 53 of the Tennessee Rules of Civil Procedure. The issue is whether the lower court erred in this action. Our review is de novo upon the record accompanied by a presumption of correctness as to the findings of fact by the chancellor. Tenn.R.App.P.13(d). http://www.tba.org/tba_files/TCA/Unitedph_opn.WP6 CONCURRING OPINION: http://www.tba.org/tba_files/TCA/Sizemore_con.WP6
STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES VS. TAMRA LEANN VIAR and JOHN FITZGERALD GROSS, (Present Whereabouts Unknown and THE UNKNOWN FATHER OF KATELYN NICOLE VIAR, (Present Whereabouts Unknown Respondents. IN THE MATTER OF: KATELYN NICOLE VIAR Court:TCA Judge:INMAN First Paragraph: We have reviewed the Petition to Rehear filed on behalf of the Attorney General and conclude that the Petition should be denied for the following reasons. 1. The Attorney General contends that the State has proved the gounds set out in T.C.A. S 36-117(g)(3)(A), thereby justifying termination of parental rights. We find, however, that the testimony concerning the mother's current relationship with her child does not meet the requirements of 36-117-(g)(3)(A)(i) and (iii) by clear and convincing evidence. http://www.tba.org/tba_files/TCA/Viar_prh.WP6
STATE OF TENNESSEE VS. CHARLES FRANK BANKSTON Court:TCCA Attorneys: For the Appellant: For the Appellee: Don W. Poole Charles W. Burson 732 Cherry Street Attorney General of Tennessee Chattanooga, TN 37402 and Elizabeth T. Ryan Assistant Attorney General of Tennessee 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 William H. Cox District Attorney General and David Denny Assistant District Attorney General 600 Market Street Chattanooga, TN 37402 Judge:TIPTON First Paragraph: The defendant, Charles Frank Bankston, appeals as of right following his convictions by a jury in the Criminal Court of Hamilton County of second degree murder, a Class A felony, and reckless endangerment with a deadly weapon, a Class E felony. He received sentences of twenty-five years and two years to be served concurrently in the custody of the Department of Correction. http://www.tba.org/tba_files/TCCA/Bankston_opn.WP6
RICHARD CAPANYOLA VS. STATE OF TENNESSEE ORDER Court:TCCA Judge:WELLES First Paragraph: This matter is before the Court upon the state's motion to affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. After reviewing the state's motion, the appellant's brief, and the record on appeal, the Court finds that this is an appropriate matter for affirmance under Rule 20. http://www.tba.org/tba_files/TCCA/Capanyol_ord.WP6
GARY JUNE CAUGHRON VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Randall E. Reagan John Knox Walkup 2643 Kingston Pike Attorney General of Tennessee Knoxville, TN 37919 and Kenneth W. Rucker Asst Attorney General of Tennessee Gerald L. Gulley, Jr. 425 Fifth Avenue North 607 Market Street Nashville, TN 37243-0493 P.O Box 1708 Knoxville, TN 3790 Alfred C. Schumtzer District Attorney General and Steve Hawkins Assistant District Attorney General 125 Court Avenue Sevierville, TN 37862 Judge:TIPTON First Paragraph: The petitioner, Gary June Caughron, appeals as of right from the Sevier County Circuit Court's denial of post-conviction relief as to the guilt phase of his trial. He was convicted in 1990 for the first degree murder of Ann Robertson Jones and received the death penalty. He was also convicted of first degree burglary and assault with the intent to commit rape for which he received consecutive ten-year sentences. The convictions and sentences were affirmed on direct appeal to the Tennessee Supreme Court. State v. Caughron, 855 S.W.2d 526 (Tenn. 1993), cert. denied, 510 U.S. 979, 114 S. Ct. 475 (1993). http://www.tba.org/tba_files/TCCA/Caughrog_opn.WP6
STATE OF TENNESSEE VS. JAMES H. CRAWFORD Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: GALE K. FLANARY (on appeal) JOHN KNOX WALKUP Assistant Public Defender Attorney General & Reporter P.O. Box 839 Blountville, TN 37617 CLINTON J. MORGAN Assistant Attorney General LARRY R. DILLOW (at trial) Criminal Justice Division Attorney at Law 425 Fifth Ave. North 421 E. Market St. 2d Floor, Cordell Hull Bldg. Kingsport, TN 37660 Nashville, TN 37243-0493 H. GREELEY WELLS, JR. District Attorney General JOSEPH EUGENE PERRIN Assistant District Attorney General 140 Blountville Bypass P.O. Box 526 Blountville, TN 37617-0526 Judge:WITT First Paragraph: The defendant, James H. Crawford, appeals pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure from two convictions for reckless aggravated assault as entered in the Criminal Court of Sullivan County. Reckless aggravated assault is a Class D felony, and the defendant is currently serving a six-year sentence in the Department of Correction. In this appeal, he challenges the sufficiency of the evidence and contends that the trial court erred in ordering him to serve the two three-year sentences consecutively. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Crawfrd_opn.WP6
STATE OF TENNESSEE VS. CRAIG MICAH LEAK Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Gregory D. Smith John Knox Walkup One Public Square, Suite 321 Attorney General & Reporter Clarksville, TN 37040 (On Appeal) Douglas D. Himes Assistant Attorney General Charles L. Johnson, II 425 Fifth Avenue North 508 Franklin Street Nashville, TN 37243-0493 Clarksville, TN 37040 (At Trial) John W. Carney, Jr. District Attorney General Steven Garrett Assistant District Attorney General 204 Franklin Street, Suite 200 Clarksville, TN 37040-3420 Judge:LAFFERTY First Paragraph: The appellant, Craig Micah Leak, was convicted of two counts of aggravated robbery and one count of aggravated kidnapping. The trial court imposed consecutive twelve-year sentences on each count, with a release eligibility of thirty percent. The appellant challenges these sentences, arguing that (1) the trial court misapplied certain enhancement factors and his sentences are, therefore, excessive; and (2) the order of consecutive service was not warranted. We affirm in part, vacate in part, and remand to the trial court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/Leakcm_opn.WP6
RAYFORD B. MARTIN VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MARK E. STEPHENS JOHN KNOX WALKUP Public Defender Attorney General and Reporter JOHN HALSTEAD MICHAEL J. FAHEY, II PAULA R. VOSS Assistant Attorney General Assistant Public Defenders 425 Fifth Avenue North 1209 Euclid Avenue Nashville, TN 37243 Knoxville, TN 37921 RANDALL E. NICHOLS District Attorney General MARSHA SELECMAN Assistant District Attorney General City-County Building Knoxville, TN 37902 Judge:WELLES First Paragraph: This is an appeal as of right from the trial court's denial of post-conviction relief from convictions based upon guilty pleas. The Defendant entered guilty pleas, with sentencing left to the discretion of the trial judge, to two counts of aggravated kidnapping, two counts of aggravated rape, and four counts of armed robbery. At the sentencing hearing conducted on April 3, 1989, he received a total effective sentence of 150 years. This Court affirmed his sentences on direct appeal. The Defendant filed a petition for post-conviction relief in December of 1991; and following appointment of counsel, he filed a supplemental petition in June of 1997. The trial court conducted a hearing and denied the petition in July of 1997. The Defendant now appeals the trial court's ruling. We affirm, but we grant Defendant relief in the form of a delayed appeal. http://www.tba.org/tba_files/TCCA/Martinrb_opn.WP6

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