TBALink Opinion-Flash

December 2, 1996 -- Volume #2 -- Number #108

Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts.

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00-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
08-New Opinons From TCA
09-New Opinons From TCCA

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TBALink Chief Editor


RICKY LEE FARLEY
vs. 
DONNA ELAINE FARLEY

Court:TCA

ATTORNEY FOR PLAINTIFF/APPELLANT    ATTORNEY FOR DEFENDANT/APPELLEE 

THOMAS J. DRAKE, JR.                WM. G. WILKINSON
305 Fourteenth Avenue, North        Stinnett & Wilkinson
Nashville, TN 37203                 106 Frey Street
                                    P. O. Box 125
                                    Ashland City, TN 37015

Judge: LEWIS

First Paragraph:

This is an appeal by plaintiff Ricky Lee Farley, from the judgment of
the chancery court which changed custody of his two minor children
from him to their mother, Donna Elaine Farley, defendant/appellee.
AFFIRMED AND REMANDED.

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

RUSSELL HENRY HASTINGS
vs. 
CAROLYN LOUISE HASTINGS

Court:TCA

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

Mark A. Free                    Christopher L. Dunn
Columbia, TN                    Columbia, TN 
                         
Judge: LILLARD

First Paragraph:

This is a divorce case in which the wife seeks payment of an asserted
arrearage in child support.  The trial court held that the husband had
paid child support in accordance with the order in effect at that
time, and dismissed the petition for arrearage.  We affirm in part and
reverse in part and remand.

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

TRACY HAWKS and DALE HAWKS
VS.
CITY OF WESTMORELAND

Court:TCA

ATTORNEY FOR PLAINTIFF/APPELLANT    ATTORNEY FOR DEFENDANTS/APP

Bruce N. Oldham                     Christina U. Douglas
OLDHAM & DUNNING                    FARRAR & BATES
109 Public Square                   P.O. Box 80838
Gallatin, TN  37066                 Nashville, TN 37208

Judge: TODD

First Paragraph:

The defendant, City of Westmoreland, has appealed from a non jury
judgment awarding the plaintiffs $50,000 damages for enlargement of
fire damage to plaintiff's home as a result of the inability of fire
fighters to obtain water from fire hydrants near the home. The
judgment of the Trial Court is affirmed.

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

PAUL D. MARTIN
VS.
DEPARTMENT OF CORRECTION

Court:TCA

Pro Se/Petitioner/Appellant             Attorney General and Reporter
       
PAUL D. MARTIN                          CHARLES W. BURSON           
Riverbend Maximum Security Ins.         
7475 Cockrill Bend Industrial Rd.       Attorney for Respondent/Appellee
Nashville, TN 37209-1010         
                                        PATRICIA C. KUSSMANN        
                                        Assistant Attorney General
                                        404 James Robertson Parkway
                                        Nashville, TN 37243
    
Judge: CANTRELL

First Paragraph:

A prisoner in the custody of the the Department of Correction was
accused of assaulting a prison guard.  After a hearing, disciplinary
sanctions were imposed against the inmate, including a postponement of
his release eligibility date. He filed a Petition for Certiorari in
the Chancery Court, arguing that he had acted in self-defense, and
that irregularities in the hearing procedure were in violation of
departmental procedures.  The Chancery Court dismissed the petition
for untimeliness. We affirm the trial court.

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

HERBERT E. ROSE, SR. and
vs. 
H.C.A. HEALTH SERVICES OF                     
TN, INC., et al.

DANIEL D. HOFFMAN
vs. 
H.C.A. HEALTH SERVICES OF
TN, INC., et al.

Court:TCA

For the Plaintiffs/Appellants:      For the Defendants/Appellees: 
                              
Larry D. Wilks                      C. J. Gideon, Jr.
Sidney W. Gilreath                  William S. Walton
Nashville, TN                       Nashville, TN

Gregory D. Smith
Clarksville, TN                         

Judge: LILLARD

First Paragraph:

This case involves two cases consolidated on appeal, the first filed
by plaintiff Herbert Rose and the second by plaintiff Daniel Hoffman.
Both cases are medical malpractice actions involving the use of
pedicle screws in spinal column surgery.  In both, the trial court
granted summary judgment in favor of defendant H.C.A. Health Services
of TN, Inc., d/b/a Centennial Medical Center. Both plaintiffs
submitted affidavits from the same expert, and the trial court
disallowed the affidavits of the plaintiffs' expert on the basis that
he did not meet the requirements of Tenn. Code Ann. S 29-26-115(b). We
affirm.

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

GARY BERNARD SANDERS
VS. 
DON SUNQUIST, ET.AL.

Court:TCA                         

Judge: TODD

First Paragraph:

The appellant has filed a respectful petition to rehear which has been
duly considered and is respectfully denied.

URL:http://www.tba.org/tba_files/TCA/SANDERS1_ORD.WP6
Opinion-Flash

THOMAS TARPLEY
VS.
CHARLES TRAUGHBER, CHAIRMAN, TN BOARD OF PAROLES

Court:TCA                         

Judge: TODD

First Paragraph:

The appellant has filed a respectful petition to rehear which has been
duly considered and is respectfully denied.

URL:http://www.tba.org/tba_files/TCA/TARPLEY1_ORD.WP6
Opinion-Flash

WESTERN EXPRESS, INC.
VS.
INTERESTED UNDERWRITERS AT LLOYD'S, LONDON

Court:TCA

Attorney for Plaintiff/Appellant    Attorneys for Defendant/Appellee

ISHAM B. BRADLEY                    LEX A. COLEMAN
500 Wilson Pk. Cir., Ste. F218      RICHARD R. RUTH
Brentwood, TN 37027                 RUTH, McCARTHY & COLEMAN, P.C.
                                    1600 First TN Building
                                    701 Market Street
                                    Chattanooga, TN 37402
                                    
Judge: CANTRELL

First Paragraph:

This appeal raises the question of whether Tenn. Code Ann. S56
37-110(d) requires an insurer of personal property to notify
lienholders that the coverage has been cancelled before the
cancellation is effective as to the property owner. We affirm the
chancellor's decision resolving the question against the property
owner.

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

STATE OF TN
vs. 
ANTONIO ERASMO ALVARADO

Court:TCCA

For Appellant:              For Appellee:

Jan R. Patterson            Charles W. Burson
Attorney                    Attorney General and Reporter
225 West Baltimore          
Suite B                     Charlotte H. Rappuhn
Jackson, TN  38301          Assistant Attorney General
(on appeal)                 Criminal Justice Division
                            450 James Robertson Parkway
John Dickey                 Nashville, TN  37243-0493
District Public Defender
                            W. Michael McCown
Robert Marlow               District Attorney General
Assistant Public Defender
P.O. Box 1119               Robert G. Crigler
Fayetteville, TN  37334     Asst. District Attorney General
                            Bedford County Courthouse
Curtis Gann                 Shelbyville, TN  37160      
Assistant Public Defender   
P.O. Box 1119               Gary M. Jones
Fayetteville, TN  37334     Asst. District Attorney General
                            Bedford County Courthouse
                            Shelbyville, TN  37160
Judge: WADE

First Paragraph:

OPINION: The defendant, Antonio Erasmo Alvarado, was convicted of
attempted felony murder, aggravated assault, aggravated rape and
aggravated burglary.  The jury acquitted the defendant of the charge
of theft of property.  The trial court imposed a Range I, effective
sentence of fifty (50) years and approved fines totaling $70,000.
REVERSED AND DISMISSED IN PART; AFFIRMED IN PART.

CONCURRING: I [JUDGE CANTRELL] concur fully with the majority opinion,
given the present state of the law.  However, I would hope that our
Supreme Court would revisit its holding in State v. Kimbrough, 924
S.W.2d 888 (Tenn. 1996), relative to there being no crime of attempt
to commit felony murder.

DISSENTING & CONCURRING: I [JUDGE SUMMERS] agree with the majority's
dismissal of the attempted felony murder conviction. Our Supreme
Court, in State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996), ruled that
attempted felony murder is not a crime in TN. I would find that
the attempted second degree murder conviction could be revived.  After
the jury spoke, no reason exists to invalidate its verdict.  The
appellant should be sentenced for that conviction without the state's
having to try him again.

URL:http://www.tba.org/tba_files/TCCA/ALVARADO_OPN.WP6
URL:http://www.tba.org/tba_files/TCCA/ALVARADO_CON.WP6
URL:http://www.tba.org/tba_files/TCCA/ALVARADO_DIS.WP6
Opinion-Flash

AMOS COPENY
vs.
STATE OF TN

Court:TCCA

For the Appellant:              For the Appellee:

A. Christian Lanier, III        Charles W. Burson
Suite 150, 615 Lindsay St.      Attorney General and Reporter
Chattanooga, TN  37403  
                                Elizabeth T. Ryan
                                Assistant Attorney General 
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                William H. Cox III
                                District Attorney General

                                Rebecca Stern
                                Asst. District Attorney General
                                Court Building, 600 Market St.
                                Chattanooga, TN  37402                         

Judge: HAYES

First Paragraph:

The appellant, Amos Copeny, appeals the Hamilton County Criminal
Court's order denying his petition for post-conviction relief.  In
this appeal, the appellant contends that his trial counsel was
ineffective for: (A) failing to meet with the appellant sufficiently
to present an effective defense; (B) failing to interview the
witnesses for either the defense or the State; (C) failing to carry
out a "test drive" of the appellant's alleged route to determine
whether the State's theory of the case was possible; (D) failing to
properly prepare for the trial of the case; and (E) failing to adopt a
strategy in defending the appellant. After a review of the record and
the brief of both parties, we affirm the order of the trial court
denying post-conviction relief.

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

FRANK CRITTENDEN
vs.
STATE OF TN

Court:TCCA

For the Appellant:              For the Appellee:

F. Thomas Giambattista          Charles W. Burson
1008 17th Avenue South          Attorney General and Reporter
Nashville, TN  37212    
                                Mary Anne Queen
                                Legal Assistant

                                Charlotte H. Rappuhn    
                                Assistant Attorney General                          
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                Victor S. (Torry) Johnson III
                                District Attorney General

                                William Reed
                                Asst. District Attorney General
                                Washington Square, Suite 500
                                222-2nd Avenue North
                                Nashville, TN 37201-1649                         

Judge: HAYES

First Paragraph:

The appellant, Frank Crittenden, appeals the Davidson County Criminal
Court's dismissal of his petition for post-conviction relief.  In his
petition, the appellant alleges that, but for the ineffective
assistance of his trial counsel, he would have timely filed a notice
of appeal from the trial court's sentencing decision.  Consequently,
the appellant asks this court to find that, due to this constitutional
violation, he is entitled to a delayed appeal of his original
sentences. After reviewing the record, we conclude that the
appellant's issue is without merit. Accordingly, we affirm the trial
court's order denying post conviction relief.

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

STATE OF TN
vs.
ROBERT ANTHONY DEVITO

Court:TCCA

For the Appellant:                  For the Appellee:

N. Reese Bagwell                    Charles W. Burson
The Bagwell Law Firm                Attorney General and Reporter
P.O. Box 427                        450 James Robertson Parkway
116 S. Second St.                   Nashville, TN 37243-0493
Clarksville, TN 37041
                                    Sarah M. Branch
                                    450 James Robertson Parkway
                                    Nashville, TN 37243

                                    John Wesley Carney, Jr.
                                    District Attorney General

                                    Steven L. Garrett
                                    Assistant District Attorney
                                    204 Franklin St., Suite 200
                                    Clarksville, TN 37041                         

Judge: BARKER

First Paragraph:

This is a direct appeal by appellant, Robert Anthony Devito, from a
conviction in the Montgomery County Circuit Court of first degree
felony murder.  He received a sentence of life imprisonment. Appellant
raises the following issues on appeal: (1) the unavailability of
Jencks material and co-defendant David Howington's testimony deprived
appellant of his Sixth Amendment constitutional rights; (2) the
trial court erred in failing to honor an informal agreement between
the State and co-defendant Howington; (3) the trial court erred in not
ordering a mistrial when co-defendant Howington stated that he had
been threatened by the district attorney; and (4) the trial court
erred in admitting the preliminary hearing testimony of co-defendant
Howington because it was hearsay. Finding the trial court committed no
error, we affirm the conviction.

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

STATE OF TN  
vs.
SHANE ETHRIDGE

Court:TCCA

FOR THE APPELLANT               FOR THE APPELLEE

Franklin D. Brabson             Charles W. Burson
2806 Natchez Trace              Attorney General and Reporter
Nashville, TN 37212             450 James Robertson Parkway
                                Nashville, TN 37243-0493
Jeffrey S. Pulley           
176 Second Ave. N., Ste. 600    William D. Bridgers
Nashville, TN 37201-1916        Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                Lawrence R. Whitley
                                District Attorney General
                                113 W. Main Street
                                Gallatin, TN 37066-2803

                                Dee Gay 
                                Assistant District Attorney General
                                113 W. Main Street
                                Gallatin, TN 37066-2803

                                Kathi Phillips
                                Assistant District Attorney General
                                113 W. Main Street 
                                Gallatin, TN 37066-2803                         

Judge: BARKER

First Paragraph:

The Appellant, Shane Ethridge, appeals as of right his sentence for
delivery of a controlled substance.  Consolidated with this appeal is
also Appellant's appeal from the denial of his petition for
post-conviction relief.  On April 29, 1994, the Appellant was the
delivery man in a drug sale to a police informant.  After being
apprehended, the Appellant confessed to the crime and plead guilty to
one count of delivery of cocaine.  The trial court sentenced the
Appellant to eight years, with one year to be served in jail and seven
years in community corrections. AFFIRMED - RULE 20 ORDER.

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

STATE OF TN
vs. 
CHRISTOPHER LIGHT

Court:TCCA

FOR THE APPELLANT               FOR THE APPELLEE

Franklin D. Brabson             Charles W. Burson
2806 Natchez Trace              Attorney General and Reporter
Nashville, TN 37212             450 James Robertson Parkway
                                Nashville, TN 37243-0493
Jeffrey S. Pulley           
176 Second Ave.N., Ste. 600     William D. Bridgers
Nashville, TN 37201-1916        Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                Lawrence R. Whitley
                                District Attorney General
                                113 W. Main Street
                                Gallatin, TN 37066-2803

                                Dee Gay 
                                Assistant District Attorney General
                                113 W. Main Street
                                Gallatin, TN 37066-2803

                                Kathi Phillips
                                Assistant District Attorney General
                                113 W. Main Street 
                                Gallatin, TN 37066-2803                         

Judge: SUMMERS

First Paragraph:

The appellant, Christopher Light, pled guilty to three counts of
aggravated burglary, five counts of theft of property, one count of
vandalism, and one count of auto burglary.  He was sentenced as a
Range II offender to an effective sentence of thirty four years
incarceration.  On appeal, he argues that the trial court erred in
ordering counts one through four consecutively and that his sentence
was excessive. AFFIRMED.

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

KENNETH TEAGUE
vs. 
STATE OF TN

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

THOMAS G. MCCROSKEY         CHARLES W. BURSON
100 N. Court St.            Attorney General & Reporter
Maryville, TN 
                            ELIZABETH T. RYAN
                            Asst. Attorney General
                            450 James Robertson Pkwy. 
                            Nashville, TN 
                
                            MIKE FLYNN
                            District Attorney General

                            EDWARD P. BAILEY, JR.
                            Asst. District Attorney General
                            363 Court St.       
                            Maryville, TN                          

Judge: PEAY

First Paragraph:

After a jury trial, the petitioner was convicted of aggravated
assault, second-degree burglary while possessing a firearm, and two
counts of aggravated kidnapping.  His convictions were affirmed on
direct appeal.  He petitioned for post conviction relief alleging that
his indictment was multiplicitous and therefore in violation of his
constitutional rights against double jeopardy, and that he had
received ineffective assistance of counsel.  After a hearing, the
court below denied relief. We affirm.

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

STATE OF TN
vs. 
CHARLES DAVID WELLS

Court:TCCA

For the Appellant:              For the Appellee:

Stephen M. Wallace              Charles W. Burson
District Public Defender        Attorney General and Reporter
    
Gale K. Flanary                 Elizabeth T. Ryan
Asst. Public Defender           Assistant Attorney General    
Post Office Box 839             Criminal Justice Division
Blountville, TN  37617          450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                H. Greeley Wells, Jr.
                                District Attorney General

                                Phyllis Miller
                                Asst. District Attorney General
                                Blountville, TN  37617                         

Judge: HAYES

First Paragraph:

The appellant, Charles David Wells, was indicted by a Sullivan County
Grand Jury in a two count presentment charging him with one count of
aggravated robbery and one count of aggravated assault.  Pursuant to a
negotiated plea agreement with the State, the appellant pled nolo
contendere to one count of robbery as a range II offender and one
count of aggravated assault as a range I offender.  The agreed
sentence was seven years for the robbery conviction and three years
for the aggravated assault conviction, to run concurrently.  The
manner of service of the sentence was left to the discretion of the
trial court.  Following a sentencing hearing, the Sullivan County
Criminal Court denied any form of alternative sentence and imposed a
sentence of incarceration in the Department of Correction.  The
appellant now appeals this decision. After a review of the record, we
affirm the judgment of the trial court.

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

STATE OF TN
vs. 
PATRICIA YOW WILCOX

Court:TCCA

FOR THE APPELLANT:                  FOR THE APPELLEE:

Laura Rule Hendricks                Charles W. Burson
Appellant Contract Attorney         Attorney General & Reporter 
    for the
Dist. Public Defenders Conference   Janis L. Turner   
810 Henley Street                   Attorney for the State
Knoxville, TN 37902                 Criminal Justice Division
                                    450 James Robertson Parkway
Comer L. Donnell                    Nashville, TN 37243-0493
District Public Defender    
                                    Tom P. Thompson, Jr.
A. Russell Brown                    District Attorney General
Asst. Dist. Public Defender
213 N Cumberland Street             John D. Wootten, Jr.
P.O. Box 888                        Asst. Dist. Attorney General
Lebanon, TN 37087-0888              203 Greentop Street
                                    P.O. Box 178
                                    Hartsville, TN 37074-0178                          

Judge: SUMMERS

First Paragraph:

The appellant, Patricia Wilcox, was convicted by a jury of second
degree murder and sentenced to twenty-five years confinement in the
Department of Correction.  On appeal she raises the following issues
for our review: 1. Whether the trial court erred in denying the
appellant's motion for mistrial after the prosecutor made comments
regarding the appellant's invocation of her constitutional right
against self- incrimination; 2. Whether the trial court erred in
denying the appellant's motion to review the notes of a testifying
witness; 3. Whether the trial court erred in refusing to allow the
appellant to introduce the prior arrest  record of the decedent; 4.
Whether the evidence was sufficient to support a verdict of guilt
beyond a reasonable doubt; and 5. Whether the sentence imposed was
excessive. After reviewing the record, we find no reversible error. 
The judgment of the trial court is affirmed.

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

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