TBALink Opinion-Flash

October 22, 1996 -- Volume #2 -- Number #91

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

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George Dean
TBALink Chief Editor


JUANITA D. BEAN,v. ROYAL INSURANCE COMPANY  and CKR INDUSTRIES, INC.,   

Court:TSC - Workers Comp Panel

For the Appellant:                  For the Appellee:

Randolph A. Veazey              Clinton H. Swafford
Connie Jones                    SWAFFORD, PETERS & PRIEST
GLASGOW & VEAZEY                100 First Avenue, SW
Washington Square               Winchester, Tennessee 37398
222 Second Ave N., Suite 312
P. O. Box 198681
Nashville, Tennessee 37219
                         
Judge: CHILDERS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  Our review
is de novo on the record accompanied by a presumption that the
findings of fact of the trial court are correct unless the evidence
preponderates otherwise.  Tenn. Code Ann. S 50-6-225(e)(2). The trial
court awarded Ms. Bean $8,831.04 permanent partial disability
benefits, representing forty-eight (48) weeks at the benefit rate of
$183.98 per week, or twelve percent (12%) to the body as a whole;
future medical expenses pursuant to the Tennessee Workers'
Compensation Act; and reasonable costs of Dr. Rodriguez services. The
trial court also allowed attorneys fees of twenty percent (20%) of the
award, in the amount of $1,766.21,  to be paid in lump sum.

URL:http://www.tba.org/tba_files/TSC_WCP/BEAN.OPN.WP6
Opinion-Flash

HELEN CARROLL, v.MOORE AND ASSOCIATES and TRAVELERS INSURANCE COMPANY,                              

Court:TSC - Workers Comp Panel

FOR APPELLEE:                          FOR APPELLANTS:

ROBERT S. PETERS                       W. RITCHIE PIGUE        
100 First Avenue, S.W.                 WILLIAM G. McCASKILL, JR.
Winchester, TN 37398                   One Union Street        
                                       P. O. Box 198169
                                       Nashville, TN 37219-8169

Judge: RUSSELL

First Paragraph:

This appeal from the judgment of the trial court in a workers'
compensation case has been referred to the Special Workers'
Compensation Appeals Panel of the Supreme Court in accordance with
Tennessee Code Annotated Section 50-6-225 (e)(3) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law. The injured employee was awarded compensation for a 65% permanent
occupational disability to her right arm.  The court also ordered the
recovery of the medical charges of Dr. Keith Brown, who treated the
employee without the express prior approval of the employer.

URL:http://www.tba.org/tba_files/TSC_WCP/CARROLL.OPN.WP6
Opinion-Flash

DONNA FORRESTER,            
v.
OSHKOSH B'GOSH and TRAVELERS INSURANCE COMPANY,

Court:TSC - Workers Comp Panel

FOR APPELLANT:              FOR APPELLEES:  
Charles L. Hicks            William Ritchie Pigue
Post Office Box 424         William G. McCaskill, Jr.
9 N. Court Square           One Union Street
Camden, TN 38320            Post Office Box 198169
                            Nashville, TN 37219-8169
                         
Judge: CLARK

First Paragraph:

This worker's compensation appeal has been referred to the special
worker's compensation appeals panel of the Supreme Court in accordance
with Tenn. Code Ann. S50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. In this
appeal, the employer contends the award of permanent partial
disability benefits based on thirty (30%) percent to the body as a
whole is excessive.  This panel concurs, and modifies the award of the
trial court for the reasons stated below.

URL:http://www.tba.org/tba_files/TSC_WCP/FORRESTE.OPN.WP6
Opinion-Flash

BILLY GIBSON,               
v.
AETNA CASUALTY AND SURETY CO. and WOLF TREE EXPERTS, INC.,  

Court:TSC - Workers Comp Panel

For the Appellants:             For the Appellee:

David E. Smith                  Dwight E. Stokes
Hodges, Doughty & Carson        119 Court Avenue
617 West Main Street            Sevierville, TN 37862
P. O. Box 869
Knoxville, TN 37901-0869
                          
Judge: THAYER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. Plaintiff,
Billy Gibson, was awarded 100 percent permanent disability benefits by
the Circuit Court of Sevier County as a result of an accident on June
24, 1991, when he fell backward from a truck to the ground injuring
his back.  Defendants, Wolf Tree Experts, Inc. and The Aetna Casualty
and Surety Company, have appealed insisting the evidence preponderates
against the finding of total disability.

URL:http://www.tba.org/tba_files/TSC_WCP/GIBSONB.OPN.WP6
Opinion-Flash

ANGELA K. HILL,             
v.
ROYAL INSURANCE COMPANY and CKR INDUSTRIES, INC.,       

Court:TSC - Workers Comp Panel

For the Appellant:              For the Appellee:

Randolph A. Veazey              Clinton H. Swafford
Connie Jones                    SWAFFORD, PETERS & PRIEST
GLASGOW & VEAZEY                100 First Avenue, SW
Washington Square               Winchester, Tennessee 37398
222 Second Ave N.,Suite 312
P. O. Box 198681
Nashville, Tennessee 37219
                       
Judge: CHILDERS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  Our review
is de novo on the record accompanied by a presumption that the
findings of fact of the trial court are correct unless the evidence
preponderates otherwise.  Tenn. Code Ann. S 50-6-225(e)(2). The trial
court awarded Plaintiff Hill $16,212.00 permanent partial disability
benefits, representing eighty (80) weeks at the benefit rate of
$202.65 per week, or twenty percent (20%) permanent partial disability
to the body as a whole; and future medical expenses pursuant to the
Tennessee Workers' Compensation Act.  The trial court also allowed an
attorneys fee of twenty percent (20%) of the award, in the amount
$3,242.40, to be paid in lump sum.

URL:http://www.tba.org/tba_files/TSC_WCP/HILL.OPN.WP6
Opinion-Flash

BARBARA ANN HOLT,           
v.
ROYAL INSURANCE COMPANY and CKR INDUSTRIES, INC.,       
    
Court:TSC - Workers Comp Panel

For the Appellant:              For the Appellee:

Randolph A. Veazey              Clinton H. Swafford
Connie Jones                    SWAFFORD, PETERS & PRIEST
GLASGOW & VEAZEY                100 First Avenue, SW
Washington Square               Winchester, Tennessee 37398
222 Second Avenue North
P. O. Box 198681
Nashville, Tennessee 37219
                        
Judge: CHILDERS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  Our review
is de novo on the record accompanied by a presumption that the
findings of fact of the trial court are correct unless the evidence
preponderates otherwise.  Tenn. Code Ann.  S 50-6-225(e)(2). The trial
court awarded Ms. Holt $13,196.80 permanent partial disability
benefits, representing eighty (80) weeks at the benefit rate of
$164.96 per week, or twenty percent (20%) to the body as a whole; and
future medical benefits pursuant to the Tennessee Workers'
Compensation Act.  The trial court also allowed attorneys fees of
twenty percent (20%) of the award, in the amount of $2,639.36, to be
paid in lump sum.

URL:http://www.tba.org/tba_files/TSC_WCP/HOLT.OPN.WP6
Opinion-Flash

JOHNNY JOBE,  v. M. K. FERGUSON, and  SECOND INJURY FUND,                  

Court:TSC - Workers Comp Panel

For Appellant:                 For Appellee, Jobe:

Donald B. Oakley               J. Anthony Farmer
Morristown, Tennessee          Knoxville, Tennessee

                               For Appellee, Second Injury Fund:

                               Charles W. Burson
                               Attorney General & Reporter

                               Dianne Stamey Dycus
                               Senior Counsel
                               Nashville, Tennessee
                         
Judge:  Loser

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. section 50-6-225(e)(3) for hearing and reporting
of findings of fact and conclusions of law.  The issue in this appeal
is whether the award of permanent disability benefits is excessive. 
As discussed below, we have concluded the judgment should be modified.

URL:http://www.tba.org/tba_files/TSC_WCP/JOBEVMKF.OPN.WP6
Opinion-Flash

KERRY ALAN NAPIER,  
v. 
CINCINNATI CASUALTY INSURANCE COMPANY and NORTH CENTRAL TELEPHONE
COOPERATIVE,

Court:TSC - Workers Comp Panel

For the Appellants :            For the Appellee: 
                    
Jacky O. Bellar                 Frank D. Farrar
212 Main St.                    William Joseph Butler 
P.O. Box 332                    Farrar & Holliman
Carthage, TN  37030             102 Scottsville Hwy.
                                P.O. Box 280
                                Lafayette, TN  37083                       

Judge: INMAN

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. The issue in
this case is whether the award of 75 percent disability to the
plaintiff's right hand is in accord with the preponderance of proof. 
Appellate review is confined to a review de novo on the record,
accompanied by a presumption that the trial judge's findings of fact
are correct unless the evidence otherwise preponderates.  T.C.A. S
50-6-225(e)(2).  A concomitant rule is that we are as enabled as the
trial judge to judge the probative worth of depositional testimony.  
Landers v. Fireman's Fund Ins. Co., 775 S.W.2d 355, 356 (Tenn. 1989).

URL:http://www.tba.org/tba_files/TSC_WCP/NAPIER.OPN.WP6
Opinion-Flash

SHIRLEY DIANE TRAIL,            
v.
ROYAL INSURANCE COMPANY and CKR INDUSTRIES, INC.,   

Court:TSC - Workers Comp Panel

For the Appellant:              For the Appellee:

Randolph A. Veazey              Clinton H. Swafford
Connie Jones                    SWAFFORD, PETERS & PRIEST
GLASGOW & VEAZEY                100 First Avenue, SW
Washington Square               Winchester, Tennessee 37398
222 Second Avenue North
P. O. Box 198681
Nashville, Tennessee 37219
                    
Judge: CHILDERS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.   Our review
is de novo on the record accompanied by the presumption that the
findings of fact of the trial court are correct unless the evidence
preponderates otherwise.  Tenn. Code Ann. S 50-6-225(e)(2). The trial
court awarded Ms.  Trail $19,421.00 permanent partial disability
benefits, representing one-hundreed (100) weeks at the benefit rate of
$194.21 per week, or twenty five percent (25%) to the body as a whole;
and future medical benefits pursuant to the Tennessee Workers'
Compensation Act.  The trial court also allowed attorneys fees of
twenty percent (20%) of the award, in the amount of $3,884.20, to be
paid in a lump sum.

URL:http://www.tba.org/tba_files/TSC_WCP/TRAIL.OPN.WP6
Opinion-Flash

RALPH D. WEST,              
v.
SONIC DRIVE-IN and ANCO INTERSTATE INSURANCE COMPANY,

Court:TSC - Workers Comp Panel

For the Appellants:             For the Appellee: 
                    
W. Stuart Scott                 Jacky O. Bellar
SunTrust Center, 14th Floor     212 Main St. 
424 Church St.                  P.O. Box 332
Nashville, TN  37219            Carthage, TN  37030 
                       
Judge: CHILDERS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. The
plaintiff alleged that he injured his back on November 27, 1991 while
employed as a cook.  He sought medical treatment about one month later
and in course was referred to Dr. Fonda Bondurant, an orthopedic
surgeon in Lebanon, Tennessee, who performed a hemilaminectomy and
discectomy on January 27, 1992.  The surgery was successful, and the
plaintiff was released to return to work on March 31, 1992.  Utilizing
the AMA Guidelines, Dr. Bondurant gave the plaintiff an impairment
rating of eight percent "strictly because he had surgical intervention
performed."

URL:http://www.tba.org/tba_files/TSC_WCP/WEST.OPN.WP6
Opinion-Flash

BARNES & NOBLE SUPERSTORES,INC., d/b/a BOOKSTAR,        
v.
JOE B. HUDDLESTON, COMMISSIONER OF REVENUE, STATE OF TENNESSEE,

Court:TCA

CHARLES W. BURSON
Attorney General & Reporter

SEAN P. SCALLY
Assistant Attorney General
Nashville, Tennessee
Attorneys for Defendant/Appellant

MARIAN F. HARRISON
ALAN D. JOHNSON
WILLIS & KNIGHT
Nashville,Tennessee
Attorneys for Plaintiff/Appellee

Judge: ALAN E. HIGHERS

First Paragraph:

In this case, the Tennessee Commissioner of Revenue ("Commissioner")
appeals from the trial court's grant of summary judgment in favor of
Bookstar.  The primary issue with which we are presented is whether
Bookstar's sale of cards that entitle its customers to a discount on
merchandise is subject to Tennessee sales tax.  We hold that these
sales are not subject to taxation.  Consequently, we affirm the
judgment of the court below.

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

IN THE MATTER OF:SEAN MICHAEL CRAWFORD, a minor under 18 years of age   
THOMAS MATTHEW CIHLAR,  
v.
MARY ANN CRAWFORD and RONALD SHANE CRAWFORD,

Court:TCA

WAYNE DETRING
103 Hazel Path Court
Hendersonville, Tennessee  37075
ATTORNEY FOR PETITIONER/APPELLEE

JOHN L. SCHLECHTY
222 Second Avenue North
Suite 360M
Nashville, Tennessee  37201
ATTORNEY FOR RESPONDENTS/APPELLANTS
                        
Judge: SAMUEL L. LEWIS

First Paragraph:

In this appeal respondents, Mary Ann Crawford and Ronald Shane
Crawford, question the trial judge's decision to deny Mary Ann
Crawford's motion to dismiss the petition of petitioner, Thomas
Matthew Cihlar, to "legitimate" Mary Ann Crawford's biological child.

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

JASON NARENKIVICIUS, v. WILLIAM M. LOCANTE, D.D.S.,

Court:TCA

GEORGE BAILEY, Memphis, Attorney for Plaintiff.

RICHARD GLASSMAN, Glassman, Jeter, Edwards & Wade, Memphis, Attorney
for Defendant.
                        
Judge: TOMLIN

First Paragraph:

This is a dental malpractice case.  Jason Narenkivicius ("Plaintiff")
filed suit against William Locante, D.D.S. ("Defendant") in the
Circuit Court of Shelby County, alleging that the defendant had been
guilty of negligence in performing a routine root canal procedure on
him, that later produced an infection.  Following a bench trial the
court gave plaintiff a judgment in the amount of two thousand two
hundred thirty five and 68/100 ($2235.68) dollars in special damages
and forty thousand ($40,000.00) dollars in compensatory damages.

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

DONALD R. SHADRICK, and wife, VALERIE SHADRICK, 
v.
CENTENNIAL MEDICAL CENTER and WESLEY L. COKER, M.D., 

Court:TCA

G. Thomas Nebel, John B. Carlson
Williams & Associates, P.C. of Nashville
For Plaintiffs-Appellants

Robert L. Trentham, G. Brian Jackson
Trabue, Sturdivant & DeWitt of Nashville
For Appellee, Wesley L. Coker

C. J. Gideon, Jr., William S. Walton of Nashville
For appellee, HCA Health Service of Tennessee d/b/a
Centennial Medical Center
                       
Judge: W. FRANK CRAWFORD

First Paragraph:

Plaintiffs, Donald R. Shadrick and wife, Valerie Shadrick (hereinafter
Mr. Shadrick), appeal from the order of the trial court that granted
summary judgment to defendants, Centennial Medical Center (CMC) and
Wesley L. Coker, M.D. In December of 1988, plaintiff Donald Shadrick
suffered a disabling work-related back injury.  In March of 1989, Mr.
Shadrick began seeing Dr. Wesley Coker, an orthopaedic surgeon in
Nashville.  After examining Mr. Shadrick, Dr. Coker determined that
surgery was necessary, and on April 13, 1989, Dr. Coker performed a
percutaneous dissectomy on Mr. Shadrick's spine.  Dr. Coker's office
notes for April 18, 1989, indicate that Mr. Shadrick's back pain
increased following the surgery.  On May 12, 1989, Dr. Coker performed
a second surgery on Mr. Shadrick in which he excised one of the discs
in Mr. Shadrick's spine.  Dr. Coker's notes following the second
surgery indicate that Mr. Shadrick continued to experience pain in his
back following the surgery.  On February 5, 1990, Dr. Coker performed
a third surgery on Mr. Shadrick's spine.  The third surgery involved
the injection of a steroid into his back.  Dr. Coker's March 6, 1990
notes state that the steroid injection did not alleviate Mr.
Shadrick's pain, and that following the injection "[h]is pain, in
fact, is somewhat worse across his foot into his right leg in a
classic distribution which he had described all along."

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

STATE OF TENNESSEE, ex. rel., DOUGLAS M. SIZEMORE, Commissioner of the
Department of Commerce and Insurance for the State of Tennessee,                
v.
MUTUAL INSURANCE COMPANY OF TENNESSEE,              

Court:TCA

CHARLES W. BURSON
Attorney General and Reporter

GINA J. BARHAM (BPR 10368)
Deputy Attorney General
500 Charlotte Avenue
Nashville, Tennessee 37243-0485
ATTORNEY FOR PLAINTIFF/APPELLEE

DONALD R. O'GUIN, SR.
2204 Lebanon Road
Nashville, Tennessee 37214
PRO SE FOR DEFENDANT/APPELLANT
                          
Judge: HENRY F. TODD

First Paragraph:

This appeal arises from the termination of the receivership of Mutual
Insurance Company of Tennessee which originated on May 12, 1977.  The
former president of the corporation and a claimant against the estate
has appealed from the final order of the Trial Court which reads as
follows: This  cause  came  on  to  be heard before  the Honorable C.
Allen  High  on  May 5, 1995, upon the motion  of the Special Deputy
Commissioner David S. Weed, for an order permitting him to remit the
remaining unclaimed assets of the receivership to the Division  of 
Unclaimed  Property,  to  approve the final accounting, to dissolve
the receivership, to  release the Special Special Deputy Commissioner
from any further obligations and to  dismiss  the  case.   Whereupon 
after  consideration  of  the motion,  arguments  of  counsel  and 
statements of  Donald  R. O'Guin, Sr. and the entire record in this
cause, the Court found that the motion was well taken and should be
granted.

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

CAROL DENISE LICK STAPLES,  v. MELVIN RAY STAPLES,  

Court:TCA

John S. Wilder, Sr.,        Andrew S. Johnston of Somerville, 
Defendant-Appellant.        For Appellee

                            Richard G. Rosser of Somerville
                            For Appellant
                        
Judge: CRAWFORD

First Paragraph:

This appeal involves child custody and visitation ordered by the trial
court in a final decree of divorce. Plaintiff, Carol Denise Lick
Staples (hereinafter Mother), and defendant, Melvin Ray Staples
(hereinafter Father), were divorced by decree entered March 3, 1995. 
The decree awarded each a divorce from the other upon grounds of
inappropriate marital conduct and divided the marital property.  The
decree awarded temporary custody of their four year old child, Thomas,
to Mother, but postponed a decision on the issue of permanent custody.
 After hearings to determine the issue of permanent custody and
visitation, the court entered an order on September 13, 1995 that
awarded joint custody of the child to the parties with Mother having
custody and control from August 15 to June 15 of each year, and Father
having custody and control from June 15 to August 15 of each year. 
The order granted Father visitation rights consisting of weekends in
Minnesota provided that Mother has two weeks advanced notice, half of
Christmas vacation and spring school vacation in Tennessee.  The order
also provided that each party may call the child by telephone while he
is in the custody of the other and that each party may be with the
child on the child's birthday.  Father filed a "Motion to Alter,
Amend, Rehear, or for New Trial" which was denied by the trial court. 
Father has appealed and presents four issues for review:  (1) whether
the trial court erred in considering the report of Mother's
psychiatrist; (2) whether the trial court erred in granting joint
custody of the parties' minor child with Mother being designated as
the custodial parent; (3) whether the trial court erred in its order
of visitation rights; and (4) whether the trial court erred in denying
Father's Motion to Alter, Amend, Rehear or for New Trial.

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

IN RE: ESTATE OF ROBERT E. YATES, DECEASED, 
FRED MAYO, JR., 
v.
ARCHIE N. SPAIN, NATIONSBANK, INC., Executor of the Estate of Robert
E. Yates, Deceased, and TREVECCA NAZARENE COLLEGE, INC.,

Court:TCA

V. Michael Fox; Bruce, Weathers, Corley, Dughman & Lyle
of Nashville, for Appellant

J. Robin McKinney, Jr. and Thomas T. Overton
of Nashville, for Appellee, Spain

T. Richard Travis; Manier, Herod, Hollabaugh & Smith
of Nashville, for Appellee, Nationsbank
                         
Judge: W. FRANK CRAWFORD

First Paragraph:

This appeal involves a dispute concerning the purported wills of
Robert E. Yates, deceased.  The record on appeal, which consists only
of the technical record, reflects a most bizarre series of
proceedings. The record indicates that Robert E. Yates died on July
22, 1994.  On August 11, 1994, Nationsbank filed a petition in the
Probate Court of Davidson County to probate the will of the decedent,
dated July 13, 1994, in common form, and to be appointed executor of
the estate as designated in the will.  An order was entered on August
11, 1994, signed by R. H. Bradshaw, Jr., Probate Master, that admits
said will to probate and appoints Nationsbank as executor of the
estate.

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

DON ZSELTVAY,               
v.
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE,

Court:TCA

DAN R. ALEXANDER, #7065
2016 8th Avenue South
Nashville, Tennessee 37204
ATTORNEY FOR PLAINTIFF/APPELLANT

ERIKA GEETTER, #14617
2016 8th Avenue South
Nashville, Tennessee 37204
ATTORNEY FOR DEFENDANT/APPELLEE
                         
Judge: HENRY F. TODD

First Paragraph:

The plaintiff, Don Zseltvay, has appealed from the judgment of the
Trial Court dismissing his suit to enforce the Tennessee Open Meetings
Act as to an action of the Board of Parks and Recreation and to
invalidate a resolution of the Metropolitan Council because it was not
based upon a valid action of the Board.

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

STATE OF TENNESSEE v. MICHAEL ALDERSON

Court:TCCA

For the Appellant:              For the Appellee:
Gregory D. Smith                Charles W. Burson
Contract Appellate Defender     Attorney General of Tennessee
One Public Squire                   and 
Clarksville, TN 37040           Kimbra Spann     
(AT TRIAL AND ON APPEAL)        Assistant Attorney General of Tennessee
                                450 James Robertson Parkway
John P. Damron                  Nashville, TN 37243-0493
District Public Defender
P.O. Box 1208                   T. Michael Bottoms        
Pulaski, TN 38478               District Attorney General   
(At TRIAL)                      P.O. Box 459
                                Lawrenceburg. TN 38464-0459
                                    and
                                Robert C. Sanders
                                Assistant District Attorney General            
                                22 Public Square
                                Columbia, TN 38402-1619
                          
Judge:Joseph M. Tipton

First Paragraph:

The defendant, Michael Alderson, appeals as of right from the
sentences imposed by the Maury County Circuit Court after it revoked
his placement in the South Central Tennessee Community Correction
Program.  The trial court sentenced the defendant, as a Range I,
standard offender, to a four-year term in the custody of the
Department of Correction for aggravated assault, a Class C felony, a
consecutive one-year term for selling a counterfeit controlled
substance, a Class E felony, and a concurrent
eleven-month-twenty-nine-day term for evading arrest, a Class A
misdemeanor.  The defendant contends that the trial court erred by
enhancing the aggravated assault sentence to one year above the
minimum and by requiring the two felony sentences to be served
consecutively.  He does not contest the revocation.

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

STATE OF TENNESSEE v. GILL AUSTIN

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:
MICHAEL R. JONES            CHARLES W. BURSON
Public Defender             Attorney General and Reporter
113 Sixth Avenue, West
Springfield, TN 37172       CLINTON J. MORGAN
                            Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            JOHN CARNEY
                            District Attorney General

                            DENT MORRISS
                            Assistant District Attorney General
                            500 S. Main Street
                            Springfield, TN 37172
                          
Judge:DAVID H. WELLES

First Paragraph:

This is an appeal pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure.  The Defendant appeals from an order of the trial
court which denied the Defendants motion to correct an illegal
sentence, and also denied the Defendants motion for street time. 
We find no error and affirm the judgment of the trial court.

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

STATE OF TENNESSEE V. ANDRE CHAMBERLAIN

Court:TCCA

FOR THE APPELLANT                   FOR THE APPELLEE
Robert P. Ballinger                 Charles W. Burson
Washington Square Two, Ste. 417     Attorney General and Reporter
222 Second Avenue, North            450 James Robertson Parkway
Nashvillle, Tennessee 37201         Nashville, Tennessee 37243-0493                 
Richard McGee                       Karen M. Yacuzzo 
Washington Square Two, Ste. 417     Assistant Attorney General
222 Second Avenue, North            450 James Robertson Parkway
Nashvillle, Tennessee 37201         Nashville, Tennessee 37243-0493
                                    
                                    Katrin Miller
                                    Assistant District Attorney General
                                    Washington Square, Ste. 500                             
                                    222 Second Avenue, South
                                    Nashvillle, Tennessee 37201

                                    Paul DeWitt
                                    Assistant District Attorney General
                                    Washington Square, Ste. 500                             
                                    222 Second Avenue, South
                                    Nashvillle, Tennessee 37201
                         
Judge:William M. Barker

First Paragraph:

The Appellant, Andre Chamberlain, appeals as of right his convictions
and sentences for possession of 300 grams of a controlled substance
with intent to sell and two counts of aggravated assault.  He argues
on appeal that: (1) Evidence introduced at trial should have been
suppressed because it was obtained as a result of an unlawful
investigatory stop. (2) The evidence presented at trial was
insufficient to establish the serious bodily injury element of
aggravated assault. (3) The evidence presented at trial was
insufficient to establish possession of 300 grams of a controlled
substance with intent to sell. (4)  The trial court erred in
imposing consecutive sentences.

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

WILLIAM HATMAKER V. STATE OF TENNESSEE

Court:TCCA

For the Appellant:              For the Appellee:
R. Jackson Rose                 Charles W. Burson
Route 2, Box 1-R                Attorney General of Tennessee
Nettleton Road                      and
Harrogate, TN 37752             Michael J. Fahey, II
                                Asst Attorney General of Tennessee                  
                                450 James Robertson Parkway     
                                Nashville, TN 37243-0493

                                William Paul Phillips
                                District Attorney General
                                P.O. Box 10
                                Huntsville, TN 37756-0010

                                Michael O. Ripley
                                Assistant District Attorney General
                                P.O. Box 323
                                Kingston, TN 37757-0323
                          
Judge:Joseph M. Tipton

First Paragraph:

The petitioner, William Hatmaker, appeals as of right from the
judgment of the Criminal Court of Campbell County denying his petition
for post-conviction relief.  Pursuant to an agreement, the petitioner
entered a guilty plea on July 6, 1991, to first degree murder, while
charges of conspiracy and solicitation to commit first degree murder
were dismissed.  The petitioner is currently serving a life sentence
in the Department of Correction.  He asserts on appeal (1) that he
received the ineffective assistance of counsel and (2) that he did not
voluntarily and knowingly enter his guilty plea.  We disagree.

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

THOMAS HEBRON V. STATE OF TENNESSEE

Court:TCCA

FOR THE APPELLANT:                  FOR THE APPELLEE:
Tommie Hebron, Pro Se               Charles W. Burson
West TN High Security Facility      Attorney General & Reporter 
P.O. Box 1050
Henning, TN 38041-1050              Karen M. Yacuzzo
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    Joseph D. Baugh, Jr.
                                    District Attorney General

                                    Ronald L. Davis
                                    Asst. Dist. Attorney General
                                    P.O. Box 937
                                    Franklin, TN 37064
                        

Judge:Joseph M. Tipton

First Paragraph:

The appellant was convicted of first degree murder.  He was sentenced
to life imprisonment.  The Tennessee Supreme Court denied permission
to appeal in 1986.  In 1987, the appellant was denied habeas corpus
relief.  In 1989, the appellant filed his first petition for
post-conviction relief.  The petition was dismissed.  In 1994, he
filed a Petition for Habeas Corpus and/or Post-Conviction Relief.  His
second petition was summarily dismissed.  In 1995, the appellant filed
a Motion to Reopen First Post-Conviction Relief.  The motion was
dismissed and the appellant appeals.

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

STATE OF TENNESSEE V. STEVE MCCAIN

Court:TCCA

FOR THE APPELLANT:                  FOR THE APPELLEE:


JOHN HENDERSON                  CHARLES W. BURSON
Public Defender                 Attorney General & Reporter
407 C Main St.
P.O. Box 68                     TIMOTHY F. BEHAN
Franklin, TN   37065-0068       Asst. Attorney General
                                450 James Robertson Pkwy.                               
                                Nashville, TN  37243-0493
                
                                JOE D. BAUGH
                                District Attorney General

                                MARK L. PURYEAR, III
                                Asst. District Attorney General
                                P.O. Box 937            
                                Franklin, TN   37065-0937
                          
Judge: JOHN H. PEAY

First Paragraph:

The defendant was indicted on two counts of aggravated robbery and one
count of theft of property valued over one thousand dollars ($1000). 
He pled guilty to one count of aggravated robbery, a class B felony,
with sentencing left to the court.  After a hearing, the court below
sentenced the defendant as a Range I standard offender to ten years
incarceration.  A Range I sentence for a class B felony is not less
than eight and not more than twelve years.  T.C.A. S 40-35-112(a)(2)
(1990 Repl.).  The defendant appeals as of right, complaining that his
sentence is excessive.  Finding no error, we affirm the sentence set
by the trial court.

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

STATE OF TENNESSEE, v. ROBERT F. ODOM,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

W. Casey Reed               Charles W. Burson
Attorney at Law             Attorney General & Reporter 
211 Printer's Alley Bldg.,  
Suite 400 
Nashville, TN 37201         Michael J. Fahey, II
                            Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            Victor S. (Torry) Johnson
                            District Attorney General

                            Kymberly Haas
                            Asst. Dist. Attorney General
                            Washington Square, Suite 500
                            222-2nd Avenue North
                            Nashville, TN 37201-1649 
                          
Judge: PAUL G. SUMMERS

First Paragraph:

The appellant petitioned for habeas corpus relief.  He alleged that
his sentence had expired.  As can be gleaned from the record, he was
sentenced to nine years in 1986.  He was paroled in 1989.  He violated
his parole and was returned to custody in 1992.  He was re-paroled in
1993.  He again violated his parole and was taken into custody in
1994.  The parole board refused to provide the appellant credit for
"street time," due to his parole violations, and recalculated his
sentence.

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

STATE OF TENNESSEE, v. JACK PROTZMAN,   

Court:TCCA

For the Appellant:                  For the Appellee:

William Carter Conway               Charles W. Burson
236 Court Square                    Attorney General and Reporter
Suite 205                           450 James Robertson Parkway
Franklin, TN 37064                  Nashville, TN 37243-0493

Joe P. Binkley, Sr.                 Sarah M. Branch
First American Center               450 James Robertson Parkway
Suite 2395                          Nashville, TN 37243
315 Deadrick Street
Nashville, TN 37238                 Joseph D. Baugh
(On Appeal Only)                    District Attorney General

                                    Derek K. Smith
                                    Assistant District Attorney
                                    P.O. Box 937
                                    Franklin, TN 37065-0937
                         
Judge: William M. Barker

First Paragraph:

The appellant, Jack Protzman, appeals as of right the sentence he
received after pleading guilty in the Williamson County Circuit Court
to possession with intent to sell not less than ten (10) pounds nor
more than seventy (70) pounds of marijuana.  He was sentenced to the
maximum eight (8) years as a Range II offender and a $50,000 fine was
imposed.  Appellant raises three issues on appeal: (1) the trial court
violated sentencing principles when it sentenced him to the maximum
term and imposed the maximum fine; (2) the trial court erred in
ordering that the current sentence be served consecutively to any
outstanding sentences in North Carolina or Texas; and (3) the trial
court erred in not allowing proof of a mitigating factor.

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

STATE OF TENNESSEE, v. JOHN WAYNE SLATE,

Court:TCCA

FOR THE APPELLANT:      FOR THE APPELLEE:

EDWARD C. MILLER        CHARLES W. BURSON
Public Defender         Attorney General and Reporter
P. O. Box 41
Dandridge, TN  37725    HUNT S. BROWN
                        Assistant Attorney General
                        450 James Robertson Parkway
                        Nashville, TN  37243

                        AL SCHMUTZER, JR.
                        District Attorney General

                        STEVEN R. HAWKINS
                        Assistant District Attorney
                        Sevierville, TN  37862
                      
Judge: JERRY L. SMITH

First Paragraph:

Appellant John Wayne Slate appeals the judgment of the Sevier County
Criminal Court imposing a twenty-five year sentence for his second
degree murder conviction.  Appellant presents the following issues for
review: (1) whether the trial court erred in refusing to expunge his
conviction for first degree murder and (2) whether his sentence is
excessive.

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

STATE OF TENNESSEE v. GARY W. WITHERSPOON

Court:TCCA

For the Appellant:              For the Appellee:
Larry D. Drolsum                Charles W. Burson
Assistant Public Defender       Attorney General of Tennessee
407 C Main Street                   and
P.O. Box 68                     Clinton J. Morgan
Franklin, TN 37068-0068         Counsel for the State   
                                450 James Robertson Parkway     
                                Nashville, TN 37243-0493
     
                                Joseph D. Baugh, Jr.
                                District Attorney General
                                    and
                                Jeff P. Burks
                                Assistant District Attorney General
                                Williamson County Courthouse
                                P.O. Box 937
                                Franklin, TN 37065-0937
                         
Judge:Joseph M. Tipton

First Paragraph:

The defendant, Gary W. Witherspoon, appeals as of right from his
convictions by a jury in the Williamson County Circuit Court for
burglary, a Class D felony, and theft over five hundred dollars, a
Class E felony.  As a Range II, multiple offender, he received
consecutive sentences of eight and four years, respectively, and was
fined $500.00 for each offense.  The defendant challenges the
sufficiency of the  evidence for his theft conviction and the
consecutive nature of his sentences.

URL:http://www.tba.org/tba_files/TCCA/WITHERS2.OPN.WP6

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