July 13, 2000
Volume 6 -- Number 110

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.

This Issue (IN THIS ORDER):
 
00 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
08 New Opinion(s) from the Tennessee Court of Appeals
06 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
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

SCOTTY BAILES BUILDER
VS.
ALLEN H. DAVIS      

Court:TSC - Workers Comp Panel

Attorneys:

For the Appellant:              For the Appellee:

Ronald J. Zuker                 J. Eric Harrison
Vaughan and Zuker               Wimberly, Lawson & Seale
112 Durwood Drive               550 Main Avenue
Knoxville, TN 37922             Knoxville, TN 37901                          

Judge: GODDARD

First Paragraph:

This workers' compensation appeal has been referred to the 
Special Workers' Compensation Appeals Panel of the Supreme Court in
accordance with Tennessee Code Annotated S 50-6-225(e)(1) for hearing
and reporting to the Supreme Court of findings of fact and conclusions
of law.

http://www.tba.org/tba_files/TSC_WCP/bailessco.wpd





HARRY W. BORDERS, d/b/a RISK MANAGEMENT ASSOCIATES v. RONNIE J. B.
CROW, d/b/a RONNIE CROW INSURANCE SERVICE

Court:TCA

Attorneys: 

Dennis L. Tomlin, Hendersonville, For Appellant

Lee D. Anderson, Nashville, For Appellee                         

Judge: CRAWFORD

First Paragraph:

This is a suit by employee for compensation allegedly due after
discharge under oral contract of employment.  Upon finding that the
discharge was for cause, the jury nevertheless returned a verdict for
the employee for post-discharge compensation.  On the employer's
appeal, we vacate that part of the judgment awarding post-discharge
compensation.

http://www.tba.org/tba_files/TCA/bordershar.wpd





JOSEPH SPOTTSWOOD CROWELL v. MAYME MODENA ROBERSON CROWELL
OPINION DENYING PETITION FOR REHEARING

Court:TCA

Judge: SUSANO

First Paragraph:

The appellee has filed a petition for rehearing pursuant to Tenn. R.
App. P. 39.  In the first ground of his petition, he asserts that we
made a mistake in computing the "[a]djustment re: North Carolina
property" reflected on page 8 of our opinion.  The appellee is in
error in this assertion.  We purposely utilized an adjusting figure of
$141,915 rather than $140,447.50 -- the latter figure being fifty
percent of the value of the marital property share of the North
Carolina property.  The larger figure was a "plug" figure used to
achieve equality in the overall division of the parties' marital
property.  Since it will be necessary to transfer funds to consummate
this division, we deemed it equitable in this case to equally divide
the parties' marital estate.  The trial court found that equality was
equitable and the evidence does not preponderate against this finding.

http://www.tba.org/tba_files/TCA/CrowellJS.wpd





RONALD L. DAVIS v. DONAL CAMPBELL, COMMISSIONER, et al.

Court:TCA

Attorneys:

Ronald L. Davis, Only, Tennessee, Pro Se

Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, and Pamela S. Lorch, Assistant Attorney General,
for the appellee, Donal Campbell, Commissioner, and the Tennessee
Department of Correction

Judge: CANTRELL

First Paragraph:

A prison inmate filed an action in the Chancery Court of Davidson
County seeking a declaratory judgment that his sentence should be
corrected.  He sought to proceed on an affidavit showing his inability
to pay costs.  The Commissioner of Correction moved to dismiss under
Rule 12.02(2) and (6), Tenn. R. Civ. P.  The Chancery Court of
Davidson County dismissed the action because the plaintiff had failed
to pay the costs and expenses in prior cases in violation of Tenn.
Code Ann. S  41-21-812.  The court also ruled that the complaint
failed to state a cause of action.  We affirm the trial court.

http://www.tba.org/tba_files/TCA/davisronaldl.wpd





JIMMY HOBBS v. ANN MARIE HOBBS

Court:TCA

Attorneys:

Jimmy Hobbs, Dunlap, Tennessee, Pro Se.

M. Keith Davis, Dunlap, Tennessee, for the appellee, Ann Marie Hobbs

Judge: CANTRELL

First Paragraph:

Two years after a divorce, and eight months after the divorce decree
was affirmed on appeal, the former husband filed a pro se motion
asking the trial court to review new evidence and to find that he had
been defrauded and denied his constitutional rights in the divorce
proceeding.  The trial court treated the pleading as a motion under
Rule 60, Tenn. R. Civ. P., and held that the motion was (1) untimely
and (2) not supported by the proof submitted by the movant.  We affirm
the trial court.

http://www.tba.org/tba_files/TCA/hobbsj.wpd





PETER GREGG McKEE v. PENNY MARIE PEARSALL McKEE
WITH OPINION DENYING PETITION FOR REHEARING
CORRECTED OPINION

Court:TCA

Attorneys:

Robert L. Holloway, Jr., Columbia, Tennessee, for the appellant, Penny
Marie Pearsall McKee.

Thomas W. Hardin and Darren J. Scoggins, Columbia, Tennessee, for the
appellee, Peter Gregg McKee.                          

Judge: KOCH

First Paragraph:

This appeal involves the financial aspects of a marriage that lasted
less than ten years.  Both parties sought a divorce and vigorously
joined issue over the classification of their property, the division
of the marital estate, and the wife's demands for spousal support and
attorney's fees.  Following a bench trial, the Chancery Court for
Maury County declared the parties divorced.  The trial court also
awarded the parties their separate property, distributed 37% of the
marital estate to the wife, and declined to award the wife spousal
support.  On this appeal, the wife takes issue with the trial court's
classification and division of the property and its refusal to award
her either spousal support or attorney's fees.

http://www.tba.org/tba_files/TCA/Mckeepg.wpd


OPINION DENYING PETITION FOR REHEARING
http://www.tba.org/tba_files/TCA/McKeepg_reh.wpd





CHERYL S. MURPHY v. CARL D. MARTIN, et al.

Court:TCA

Attorneys:

Cheryl S. Murphy, Antioch, Tennessee, Pro Se                          

Judge: CANTRELL

First Paragraph:

The trial court dismissed this negligence action for the failure to
prosecute.  On appeal the plaintiff asserts that she did not have
adequate notice that her lawsuit was in jeopardy.  We affirm the trial
court.

http://www.tba.org/tba_files/TCA/murphycs.wpd





IN THE MATTER OF T.S. AND M.S.

Court:TCA

Attorneys:

J.G. Mitchell, III, Murfreesboro, Tennessee, for the appellant, Tina
Rena Stacey.

Paul G. Summers, Attorney General and Reporter and Douglas Earl
Dimond, Assistant Attorney General, for the appellee, State of
Tennessee, Department of Children's Services.

Judge: COTTRELL

First Paragraph:

This case involves the termination of parental rights regarding  two
children who were removed from the parental home by the Department of
Children's Services in 1995 and placed in foster care.  The mother was
ordered to take steps to remedy the deficiencies in the home and made
some efforts to comply.  After four years, DCS petitioned to terminate
the mother's parental rights.  The trial court found that the mother
had failed to substantially comply with the Plan of Care and
terminated the mother's rights on grounds (1) that the conditions that
led to the children's removal continued to persist with little
likelihood of remedy and (2) that the mother was incompetent to
adequately provide for the children.  Because DCS has established
grounds for termination and has also established that termination is
in the best interest of the children, we affirm.

http://www.tba.org/tba_files/TCA/TSMS.wpd





CATHY LEE BARNES WILLIAMS v. RODNEY LEE WILLIAMS
CORRECTED OPINION

Court:TCA

Attorneys: 

Mary Anne Kevil, LaGrange, Kentucky, for the appellant, Cathy Lee
Barnes Williams.

F. Dulin Kelly and Andy L. Allman, Henderson, Tennessee, for the
appellee, Rodney Lee Williams.                         

Judge: LILLARD

First Paragraph:

This is a post-divorce petition for reduction in alimony.  The wife's
income had increased because she began working full-time instead of
part-time, and her expenses decreased because the parties' son
graduated from college and the parties' daughter, living with the
wife, was close to obtaining her professional license.  The husband
was unemployed at the time of the hearing.  The trial court granted
the husband's petition, finding that husband's decrease in income was
temporary, but holding that the wife's  increase in income, combined
with the decrease in her expenses, constituted a substantial and
material change in circumstances sufficient to justify a reduction in
alimony.

http://www.tba.org/tba_files/TCA/WilliamsCathyL.wpd





STATE OF TENNESSEE v. RONALD WAYNE ASHBY

Court:TCCA

Attorneys:

Larry Wallace, Assistant Public Defender, Fayetteville, Tennessee, for
the appellant, Ronald Wayne Ashby, at trial.  Robert Massey, Pulaski,
Tennessee, for the appellant, Ronald Wayne Ashby, at sentencing and
motion for new trial.

Paul G. Summers, Attorney General & Reporter, Jennifer L. Bledsoe,
Assistant Attorney General, William Michael McCown, District Attorney
General, Ann L. Filer, Assistant District Attorney, for the appellee,
State of Tennessee.                          

Judge: WILLIAMS

First Paragraph:

The defendant appeals his aggravated burglary conviction.  He asserts
that insufficient evidence supported the jury verdict, that the trial
court improperly admitted evidence of another crime, and that his
sentence is excessive.  We conclude that sufficient evidence supported
the verdict and that the "other crime" evidence was properly admitted.
 We affirm the sentence.

http://www.tba.org/tba_files/TCCA/AshbyRW.wpd





STATE OF TENNESSEE v. JOSEPH S. BURRIS, JR.

Court:TCCA

Attorneys: 

Darrell L. Scarlett, Murfreesboro, Tennessee for the appellant, Joseph
S. Burris, Jr.

Paul G. Summers, Attorney General and Reporter, Kim R. Helper,
Assistant Attorney General, and William C. Whitesell, Jr., District
Attorney General, for the appellee, State of Tennessee.                         

Judge: WOODALL

First Paragraph:

Defendant brought extraordinary appeal to challenge trial court's
decision to withdraw acceptance of Defendant's guilty plea following
clarification of the terms of the plea.  We hold that the trial court
properly exercised its authority.  The case is remanded for
continuation of proceedings consistent with this opinion.

http://www.tba.org/tba_files/TCCA/burrisjs.wpd





CHARLES D. BURTON v. STATE OF TENNESSEE
ORDER

First Paragraph:

The petitioner, Charles D. Burton, appeals the order of the Davidson
County Criminal Court denying his petition for post conviction relief.
 In March of 1998, the petitioner pled guilty to two (2) counts of
kidnapping and one (1) count of aggravated assault and was sentenced
as a Career Offender to consecutive terms of five (5) years for each
count.  Subsequently, the petitioner filed the present petition for
post-conviction relief, alleging, inter alia, that trial counsel was
ineffective for failing to inform him that his sentences would run
consecutively and for failing to explain to him the difference between
concurrent and consecutive sentences.  After an evidentiary hearing,
the trial court denied the petition.  After a thorough review of the
record before this Court, we affirm the trial court's judgment
pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.

http://www.tba.org/tba_files/TCCA/burtoncharles_ORD.wpd





STATE OF TENNESSEE v. JOYCE NEWMAN

Court:TCCA

Attorneys: 

Philip A. Condra, Public Defender, and B. Jeffrey Harmon, Assistant
Public Defender, Jasper, Tennessee, for the appellant, Joyce Newman.

Paul G. Summers, Attorney General and Reporter, Lucian D. Geise,
Assistant Attorney General, James Michael Taylor, District Attorney
General, and Steven H. Strain, Assistant District Attorney General,
for the appellee, State of Tennessee.                         

Judge: GLENN

First Paragraph:

The defendant pled guilty in Sequatchie County to two counts of
selling a Schedule II substance and was sentenced to confinement for
four years and six months.  After serving six months, she was placed
in community corrections.  Subsequently, an affidavit was filed by her
probation officer, alleging that she had violated her Community
Services Behavioral Contract in several ways, including "breaking
house arrest."  Following a hearing, the trial court agreed that the
defendant had violated the house arrest provision of the contract and
ordered that she serve the remainder of her sentence with the
Department of Correction.

http://www.tba.org/tba_files/TCCA/newmanj.wpd





STATE OF TENNESSEE v. MICHAEL S. REID

Court:TCCA

Attorneys:

Tony L. Maples, Nashville, Tennessee attorney for the appellant 
Michael S. Reid

Paul G. Summers, Attorney General & Reporter, Marvin E. Clements, Jr.,
Assistant Attorney General for the appellee State of Tennessee                          

Judge: SMITH

First Paragraph:

The Williamson County grand jury indicted the appellant, Michael S.
Reid, with one (1) count of driving under the influence, third
offense, one (1) count of driving on a revoked license and one (1)
count of criminal impersonation.  The appellant pled guilty to driving
on a revoked license and criminal impersonation and, after a jury
trial, was found guilty of driving under the influence, third offense.
 The trial court sentenced the appellant to concurrent terms of eleven
(11) months and twenty-nine (29) days, suspended after service of 180
days, for driving under the influence, third offense and six (6)
months, suspended after service of ten (10) days, for driving on a
revoked license.

http://www.tba.org/tba_files/TCCA/reidmichael.wpd





STATE OF TENNESSEE v. SERIA D. WARD

Court:TCCA

Attorneys:

Timothy V. Potter, Dickson, Tennessee, (on appeal), and William C.
Roberts, Jr., Nashville, Tennessee (at trial), for the appellant,
Seria D. Ward.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, Kim R. Helper, Assistant Attorney General, Victor
S. Johnson, III, District Attorney General, and Nicholas A. Bailey,
Assistant District Attorney General, for the appellee, State of
Tennessee.                          

Judge: GLENN

First Paragraph:

The defendant was convicted in Davidson County of especially
aggravated robbery and sentenced to confinement for seventeen years. 
He appealed the conviction, alleging that the evidence was
insufficient to convict him of the offense, that his videotaped
confession should have been excluded, and that his trial counsel was
ineffective.  Based upon our review, we affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TCCA/wardsd.wpd

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