TBALink Opinion-Flash

July 22, 1996 -- Volume #2 -- Number #65

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.

This Issue IN THIS ORDER:
01-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
04-New Opinons From TCA
02-New Opinons From TCCA

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George Dean
TBALink Chief Editor


STATE OF TENNESSEE, v. RICHARD ODOM, a/k/a OTIS SMITH               
CONCURRING/DISSENTING OPINION

Court:TSC

ATTORNEYS: N/A

First Paragraph:

I fully concur in the majoritys decision affirming the
conviction in this case. I also agree with the majority that
the trial courts refusal to admit into evidence as
mitigation the testimony of Dr. John Hutson was error which
requires a reversal and a remand for re-sentencing. 
However, I dissent from the majoritys analysis of the
constitutionality and sufficiency of the evidence to support
the aggravating circumstance, Tenn. Code Ann. 
39-13-204(i)(5), as amended in 1989.

Judge: E. RILEY ANDERSON, Chief Justice

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

STATE OF TENNESSEE, on behalf of LINDA PEREGORY ARNETT
v.
HASKELL ARNETT  

IN THE MATTER OF: TRAVIS CHRISTOPHER SHANE
PEREGORY, A child under 18 years of age

Court:TCA

IVAN M. LILLY OF JOHNSON CITY FOR APPELLANT

CHARLES W. BURSON, Attorney General & Reporter, and MICHAEL
K. HOHNKE, Assistant Attorney General, NASHVILLE, FOR
APPELLEE
                     
First Paragraph:

The dispositive issue of this appeal is whether that portion
of an order of legitimation entered in the Juvenile Court
for Washington County on April 1, 1986, setting child
support for Travis Peregory in the amount of "$00" is void.

Judge: Goddard, P.J. 

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

SCHOOL CALENDAR COMPANY, INC.,  
v.
JOE HUDDLESTON, in his official capacity as COMMISSIONER OF
REVENUE, STATE OF TENNESSEE,

MORRISON PRINTING COMPANY, INC.,
v.
JOE HUDDLESTON, in his official capacity as COMMISSIONER OF
REVENUE, STATE OF TENNESSEE,

Court:TCA

CHARLES W. BURSON, Attorney General and Reporter, and SEAN
P. SCALLY, Assistant Attorney General, Tax Division,
Nashville, for Appellant

BARRY W. EUBANKS of NORTON AND LUHN, P.C., Knoxville, for
Appellees
                     
First Paragraph:

These consolidated cases involve sales and use tax
deficiencies assessed by the Commissioner of Revenue
(Commissioner).  The taxpayers, School Calendar Company
(SCC) and Morrison Printing Company, Inc. (Morrison), filed
separate actions against the Commissioner pursuant to T.C.A.
 67-1-1801 seeking a determination that the assessments
were improperly made.  These suits were heard by the trial
judge at a joint bench trial on August 22 and 23, 1995.  He
found that the assessments were not legally justified and
entered judgment for the taxpayers.  The Commissioner
appealed.  We affirm.

Judge: Susano, J.

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

STATE OF TENNESSEE DEPARTMENT OF HUMAN SERVICES
v.
DORA MARTIN SCOTT PAUL RICHARD MARTIN

IN THE MATTER OF: CHARLES DAVID MARTIN, Age 12 Years, DOB:
8/6/93

Court:TCA

M. DREW ROBINSON OF CLEVELAND FOR APPELLANT

CHARLES W. BURSON, Attorney General & Reporter, and WILLIAM
ASHBY SMITH, JR., Assistant Attorney General, NASHVILLE, FOR
APPELLEE
                       
First Paragraph:

Dora Martin Scott appeals the Juvenile Courts order
terminating her parental rights with regard to her son,
Charles David Martin.

Judge: Goddard, P.J.

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

TED C. SMITH, 
v. 
THE SHELBY INSURANCE COMPANY OF THE SHELBY INSURANCE GROUP,

Court:TCA

ALBERT J. HARB of HODGES, DOUGHTY & CARSON, Knoxville, for
Appellant

MARK S. DESSAUER of HUNTER, SMITH & DAVIS, Kingsport, for
Appellee
                         
First Paragraph:

This is a declaratory judgment action.  The complaint seeks
a declaration that a loss caused by damage to the
plaintiffs building is covered under a commercial property
insurance policy issued by The Shelby Insurance Company
(Shelby).  Following a bench trial, the Chancellor held that
there was coverage under the policy and awarded the
plaintiff a judgment for $12,352.92.  Shelby appeals,
arguing that there is no coverage because the premises were
vacant at the time of the loss.  It also argues that the
loss is not covered because the policy excludes coverage for
damages [c]aused by or resulting from theft.  
Judge:  Susano, J.

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

STATE OF TENNESSEE, 
v. 
JOHNNY WAYNE HARRIS, and GARY L. (JAKE) HARRIS

Court:TCCA

FOR THE APPELLANTS:         FOR THE APPELLEE:

FRED M. LANCE               CHARLES W. BURSON
804 West Market Street      Attorney General and Reporter
Johnson City, TN 37601
Attorney for J Harris       ELIZABETH T. RYAN
                            Assistant Attorney General
                            450 James Robertson Parkway
JAMES BOWMAN                Nashville, TN 37243-0493
128 E. Market Street
Johnson City, TN 37604      DAVID CROCKETT
Attorney for G Harris       District Attorney General
                            
                            LISA NIDIFFER
                            Asst District Attorney General
                            2nd Floor Courthouse
                            Erwin, TN 37650
                       
First Paragraph:

This is an appeal as of right pursuant to Rule 3 of the
Tennessee Rules of Appellate Procedure.  Johnny Harris was
convicted of attempted first degree murder and Jake Harris
was convicted of attempted first degree murder by aiding and
abetting Johnny Harris.  They were convicted by jury in a
joint trial.  Each defendant was sentenced to twenty-five
(25) years as a Range I offender.  A fine of fifty thousand
dollars ($50,000.00), as set by the jury, was also imposed. 
We affirm but modify in part the judgment of the trial
court.

Judge: DAVID H. WELLES, JUDGE

URL:http://www.tba.org/tba_files/TCCA/HARRIS2D.OPN.WP6
Opinion-Flash

STATE OF TENNESSEE, 
v. 
DAVEY JOE VINEYARD,and JIMMY LEE COCKBURN,

Court:TCCA

FOR THE APPELLANTS              FOR THE APPELLEE

Kenneth L. Miller               Charles W. Burson
Logan, Thompson, Miller, Bilbo, Attorney General & Reporter  
    Thompson & Fisher, P.C.
P.O. Box 191                    Hunt S. Brown
Cleveland, TN  37364-0191       Assistant Attorney General                                  
                                450 James Robertson Parkway
                                Nashville, TN  37243-0493
                    
                                Jerry N. Estes
                                District Attorney General
                               
                                Joseph A. Rehyansky
                                Asst District AG
                                93 Ocoee St. N., Ste. 200
                                P.O. Box 1351
                                Cleveland, TN  37364
                         
First Paragraph:

The defendants entered pleas of guilty and reserved the
right to appeal the issue of whether the search and seizure
flowing from the stop of their vehicle was unlawful.  The
trial judge found the search to be lawful.  We find the
search was the result of a pretextual stop and not based on
probable cause.

Judge: JOHN K. BYERS SENIOR JUDGE

URL:http://www.tba.org/tba_files/TCCA/VINEYARD.OPN.WP6

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