July 01, 1999
Volume 5 -- Number 091

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
04 New Opinion(s) from the Tennessee Court of Appeals
05 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


HBO DIRECT, INC.
VS.
RUTH E. JOHNSON, Commissioner of    
Revenue, State of Tennessee

Court:TCA

Attorneys:                          
For the Plaintiff/Appellee:     For the Defendant/Appellant: 

Charles A. Trost                John Knox Walkup      
Michael G. Stewart              Steven D. Thomas                
Nashville, Tennessee            Nashville, Tennessee

Bernard Nash
Leslie R. Cohen
Laura B. Feigin
Appearing Pro Hac Vice
Washington, D.C.

Judge:KOCH

First Paragraph:

This case involves a contest of Tennessee sales and use tax assessed by
the defendant Tennessee Commissioner of Revenue.  The plaintiff
satellite programming television company argues that its services are
not taxable telecommunications because, as "broadcast[s] . . . for
public consumption," the satellite television services are excluded from
the definition of taxable telecommunications.  The trial court granted
summary judgment in favor of the plaintiff satellite programming
television company.  The defendant Commissioner appeals.  We affirm.

http://www.tba.org/tba_files/TCA/Hbodirec_opn.WP6






CHERYL LYNN (DOUGLAS)   
HUMPHREY
VS.
DAVID ARNOLD HUMPHREY

Court:TCA

Attorneys:                          
DAVID ARNOLD HUMPHREY
TURNEY CENTER 4B/20
ROUTE ONE
ONLY, TENNESSEE  37140-9709

DEFENDANT/APPELLANT
    PRO-SE


TIMOTHY L. TAKACS
201 WALTON FERRY ROAD
HENDERSONVILLE, TENNESSEE 37077-0364

ATTORNEY FOR PLAINTIFF/APPELLEE

Judge:COTTRELL

First Paragraph:

Appellant David A. Humphrey commenced this pro se appeal to challenge
the trial court's Final Decree granting a divorce to Appellee Cheryl
Lynn (Douglas) Humphrey on the ground of inappropriate marital conduct. 
He asserts that the divorce should have been granted to him or the court
should have simply declared the parties divorced.  He also challenges
the trial court's child custody and visitation order, asking that in
person visitation be required.  Finally, he objects to the assessment of
costs against him.

http://www.tba.org/tba_files/TCA/Humphrey_opn.WP6






CARL MILLIKEN
VS.
STEVEN FELDT, LORI FELDT,   
and ROBERT GASKIN

Court:TCA

Attorneys:                          
WALTER H. STUBBS
554 West Main Street
Gallatin, Tennessee  37066
    ATTORNEY FOR PLAINTIFF/APPELLANT



CURTIS M. LINCOLN
175 East Main Street, 2nd Floor
Hendersonville, Tennessee  37075
    ATTORNEY FOR DEFENDANTS/APPELLEES
    
Judge:CAIN

First Paragraph:

This case involves an appeal from the Sumner County Circuit Court's de
novo review of a case from General Sessions Court, in which only one of
the General Sessions Defendants perfected an appeal to circuit court.

http://www.tba.org/tba_files/TCA/Milliken_opn.WP6






LORI PARR, SUE MURRAY,      
OLLIE STUART, KEVIN     
SELLERS, MARY LOU DAVY
VS.
TOWER MANAGEMENT    
COMPANY, CEDAR PARK 
MOBILE HOME ESTATES,    
CATHY BORN, ANN SNELL

Court:TCA

Attorneys:                          
LORI PARR, Pro Se
1784 West Northfield Blvd., Box 267
Murfreesboro, Tennessee  37129

SUE MURRAY STEWART, Pro Se
1263 Wenlon Drive
Murfreesboro, Tennessee  37130


BARBARA J. PERUTELLI
Schulman, LeRoy & Bennett
501 Union Street, 7th Floor
P. O. Box 190676
Nashville, Tennessee  37219-0676

Judge:CAIN

First Paragraph:

This case started with a five page complaint in the Circuit Court of
Rutherford County, Tennessee and expanded to occupy the known universe.

Plaintiffs, Lori Parr, Sue Murray, Ollie Stuart, Kevin Sellers and Mary
Lou Davy, employed attorney, Lawrence H. Hart, to file suit against
Tower Management Company, Cedar Park Mobile Home Estates, Cathy Born,
and Ann Snell, collectively and individually.

http://www.tba.org/tba_files/TCA/Parrlori_opn.WP6






CLAUDE FRANCIS      
GARRETT
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:                          
FOR THE APPELLANT:      FOR THE APPELLEE:
                        
DWIGHT E. SCOTT         JOHN KNOX WALKUP
4024 Colorado Avenue    Attorney General and Reporter
Nashville, TN 37209
                        ELIZABETH T. RYAN
                        Assistant Attorney General
                        425 Fifth Avenue North
                        Nashville, TN 37243

                        VICTOR S. JOHNSON
                        District Attorney General

                        JOHN ZIMMERMANN
                        Assistant District Attorney General
                        Washington Square, Suite 500
                        222 Second Avenue North
                        Nashville, TN 37201-1649
                        
Judge:WELLES

First Paragraph:

In 1993 the Defendant, Claude Francis Garrett, was convicted of felony
murder and sentenced to life imprisonment.  On direct appeal to this
Court, his conviction was affirmed, and the Tennessee Supreme Court
denied the Defendant's application for permission to appeal.  The
Defendant subsequently filed a petition for post-conviction relief,
which was later amended after appointment of counsel.  The trial court
denied relief on July 15, 1998.  Pursuant to Tennessee Code Annotated S
40-30-216 and Rule 3(b) of the Tennessee Rules of Appellate Procedure,
the Defendant now appeals as of right the trial court's denial of
post-conviction relief.  We reverse the order of the trial court and
remand for findings of fact and conclusions of law as mandated by
statute.

http://www.tba.org/tba_files/TCCA/Garrettc_opn.WP6






STATE OF TENNESSEE
VS.
CALVIN D. HAVNER

Court:TCCA

Attorneys:                          
FOR THE APPELLANT:          FOR THE APPELLEE:

PAUL D. CROSS               PAUL G. SUMMERS     
1020 West Main Street       Attorney General & Reporter 
P.O. Box 99         
Monteagle, TN 37356         CLINTON J. MORGAN
                            Assistant Attorney General
                            425 Fifth Ave. N., 2d Floor                             
                            Nashville, TN  37243-0493
                    
                            JAMES MICHAEL TAYLOR
                            District Attorney General
                            265 Third Avenue, Suite 300
                            Dayton, TN 37321
                            
                            STEVEN H. STRAIN
                            Assistant District Attorney
                            P.O. Box 130
                            Jasper, TN 37347-0130
                            
Judge:WITT

First Paragraph:

The defendant, Calvin D. Havner, appeals from his conviction for theft
of property over $1000 but less than $10,000, a Class D felony, in the
Marion County Circuit Court.  The trial court imposed a sentence of two
years and six months with the defendant serving eleven months and 29
days in the local jail subject to work release privileges and the
remainder on probation.  In this direct appeal, the defendant raises two
issues: (1) whether the trial court erred in giving a "missing witness"
jury instruction and in prohibiting the defendant from testifying that
he was afraid of the missing witness, and (2) whether the trial court
properly sentenced the defendant by not granting straight probation or
community corrections.  After a review of the record, the briefs of the
parties, and the applicable law, we affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TCCA/Havnerc_opn.WP6






STATE OF TENNESSEE
VS.
ALLEN R. JORDAN

Court:TCCA

Attorneys:                          
FOR THE APPELLANT:          FOR THE APPELLEE:

JOHN H. HENDERSON           PAUL G. SUMMERS     
District Public Defender    Attorney General & Reporter 
            
LARRY DROLSUM               GEORGIA BLYTHE FELNER
Assistant Public Defender   Assistant Attorney General
P.O. Box 68                 425 Fifth Ave. N., 2d Floor 
Franklin, TN 37065-0068     Nashville, TN  37243-0493
                    
                            JOSEPH D. BAUGH, JR.
                            District Attorney General

                            DEREK K. SMITH
                            Assistant District Attorney General
                            P.O. Box 937
                            Franklin, TN 37065-0937
                            
Judge:WITT

First Paragraph:

The defendant, Allen R. Jordan, appeals from his sentence imposed for
especially aggravated robbery, a Class A felony, in the Williamson
County Circuit Court.  After the defendant pleaded guilty, the trial
court imposed a sentence of 24 _ years in the Tennessee Department of
Correction.  In this direct appeal, the defendant challenges the length
of the sentence imposed.  After a review of the record, the briefs of
the parties, and the applicable law, we affirm the sentence.

http://www.tba.org/tba_files/TCCA/Jordana_opn.WP6






STATE OF TENNESSEE
VS.
KENNETH MOATS

Court:TCCA

Attorneys:                          
For Appellant:          For Appellee:

George H. Waters        John Knox Walkup
Independent Contractor  Attorney General & Reporter
419 High Street
Maryville, TN  37804    Todd R. Kelley
                        Assistant Attorney General
                        425 Fifth Avenue North                                  
                        2nd Floor, Cordell Hull Building                                
                        Nashville, TN  37243-0493       
                    
                        Charles Carpenter
                        Assistant District Attorney General
                        363 Court Street
                        Maryville, TN  37804
                        
Judge:WADE

First Paragraph:

The defendant, Kenneth Moats, pled guilty to the voluntary manslaughter
of his son, Gene Moats, and the Class E felony reckless endangerment of
his granddaughter, Michelle Gribble.  The state approved a plea
agreement which provided for concurrent three-year and one-year
sentences respectively with the trial court to determine the manner of
service.  After an extensive sentencing hearing, the trial court ruled
that the three-year sentence would be suspended after service of ten
months in the Blount County Jail.  Immediate probation was granted on
the one-year sentence.  The sole issue on appeal is whether the trial
court erred by refusing to grant immediate probation on the three-year
term.

We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/Moatsk_opn.WP6






STATE OF TENNESSEE
VS.
DANIEL M. TIDWELL

Court:TCCA

Attorneys:                          
FOR THE APPELLANT:          FOR THE APPELLEE:

J. TIMOTHY STREET           MICHAEL E. MOORE    
136 Fourth Ave., South      Solicitor General 
Franklin, TN 37064          
                            KIM R. HELPER
                            Assistant Attorney General
                            425 Fifth Ave. N., 2d Floor                             
                            Nashville, TN  37243-0493
                    
                            JOSEPH D. BAUGH, JR.
                            District Attorney General

                            LEE DRYER
                            Assistant District Attorney
                            P.O. Box 937
                            Franklin, TN 37065-0937
                            
Judge:WITT

First Paragraph:

The defendant, Daniel M. Tidwell, appeals from his conviction for
resisting arrest, a Class B misdemeanor, in the Williamson County
Circuit Court.  The trial court imposed a sentence of six months to be
suspended after serving ten days in the local jail.  In this direct
appeal, the defendant challenges the sufficiency of the evidence and the
manner of service of his sentence.  After a review of the record, the
briefs of the parties, and the applicable law, we affirm the judgment of
the trial court.

http://www.tba.org/tba_files/TCCA/Tidwelld_opn.WP6

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