TBALink Opinion-Flash

January 15, 1997 -- Volume #3 -- Number #006

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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01-New Opinions From TSC
00-New Opinions From TSC-Rules
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10-New Opinions From TCCA

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JERRY BAIN and wife SUE BAIN
VS.
DR. WAYNE WELLS
AND
NATIONAL MEDICAL ENTERPRISES, INC., NEW BEGINNINGS CENTER, UNIVERSITY
MEDICAL CENTER and NATIONAL RECOVERY CENTERS OF Supreme Court AMERICA

Court:TSC

Attorneys: 

FOR PLAINTIFFS/APPELLEES:       FOR DEFENDANTS/APPELLANTS:
Henry Clay Barry                William C. Moody
Lebanon, Tennessee              Moody, Whitfield & Castellarin
                                Nashville, Tennessee                                    
                          
Judge: DROWOTA

First Paragraph:

Defendants, National Medical Enterprises, Inc., New Beginnings Center,
University Medical Center and National Recovery Centers of America,
sought and obtained permission to appeal from the Court of Appeals'
affirmance of the trial court's denial of their request for summary
judgment.  We are asked to determine whether a hospital's policy of
placing patients known to be infected with the human immunodeficiency
virus (HIV or the AIDS virus) in the same room with patients who are
not infected with the virus without warning or obtaining the consent
of the non-infected patients constitutes outrageous conduct or
negligent infliction of emotional distress. TRIAL COURT AND COURT OF
APPEALS REVERSED.

URL:http://www.tba.org/tba_files/TSC/BAIN3_OPN.WP6
Opinion-Flash

STEFANIE LYNNE BRUMIT
VS.
WALTER JESSEE BRUMIT

Court:TCA

Attorneys:  

For Appellant                   For Appellee
T. WOOD SMITH                   EDWARD L. KERSHAW
Greeneville, Tennessee          Leonard & Kershaw
                            	Greeneville, Tennessee                    

Judge: Susano

First Paragraph:

This post-divorce litigation presents issues revolving around the
custody of the parties' only child, Emily Constance Brumit (Emily)
(DOB: November 22, 1989).  At the time of the parties' divorce in
1993, Stefanie Lynne Brumit (Mother) was awarded sole custody.  In the
present chapter of this litigation, Walter Jessee Brumit (Father)
seeks to change the child's custodial arrangement to that of joint
custody.  The trial court denied Father's petition; modified the
visitation arrangement; and ordered that the child's
previously-ordered psychological therapy would take place in Florida
rather than in Tennessee. AFFIRMED AND REMANDED.

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

EDDIE HEATH
VS.
JAYNE S. CRESON, WAYLON WININGER, and PAT HUTCHINSON
A. C. GILLESS

Court:TCA

Attorneys:

For the Plaintiff/Appellant:    For the Defendants/Appellees:
Eddie Heath, Pro Se             Donnie E. Wilson
Memphis, Tennessee              Paul A. Robinson, Jr.
                                Memphis, Tennessee
                                            
Judge: LILLARD

First Paragraph:

In this action, Plaintiff Eddie Heath ("Heath") filed a pro se
complaint for declaratory judgment to determine whether he provides a
taxable service under the Business Tax Act.  Heath brought suit
against A.C. Gilless ("Gilless"), the Shelby County Sheriff,  Jayne S.
Creson ("Creson"), the Shelby County Clerk, as well as two employees
of the Shelby County Clerk's Office, Waylon Wininger ("Wininger") and
Pat Hutchinson ("Hutchinson").  The trial court dismissed Heath's
complaint, finding that it failed to state a claim upon which relief
could be granted.  We affirm.

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

MICHAEL MORAT, individually, and MORAT'S INSURANCE AGENCY, INC., a
Tennessee Corporation,
VS.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

Court:TCA

Attorneys:                          

Eugene C. Gaerig,
Memphis, Tennessee
Attorney for Plaintiffs-Appellants.

Fred P. Wilson,
WILSON, McRAE, IVY, McTYIER AND STRAIN, Memphis, Tennessee
and
Alan Strain, Memphis, Tennessee
Attorneys for Defendant-Appellee.

Judge: FRANKS

First Paragraph:

Plaintiff Michael Morat is an insurance agent with the Morat Insurance
Agency, Inc., in Memphis.  The genesis of this dispute occurred in
1981, when plaintiffs sent a policy change request form to defendant
to change the motor vehicle insured by defendant under the assigned
risk plan through this agency for the insured, J.W. Whitten.  Whitten
was in the process of purchasing a 1981 Cadillac and plaintiffs, after
exploring the possibility of insurance from other companies, agreed to
Whitten's request to apply to substitute the 1981 Cadillac for the
motor vehicle on the existing assigned risk policy.  Michael Morat
filled out the application for change, which Whitten signed.  The
plaintiff noted on the form that it was a replacement vehicle and in
the application in the space for "cost new", the plaintiff filled in
$25,000.00.  In a box on the form, plaintiff noted that the vehicle
had not been altered.  Upon defendant's receipt of the application,
the change was processed and the 1981 Cadillac became the insured
vehicle. AFFIRMED AND REMANDED.

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

CITY OF JOHNSON CITY, TENNESSEE
VS.
OUTDOOR WEST, INC. OF TENNESSEE

Court:TCA

Judge: Susano

First Paragraph:

The appellee has filed a petition for rehearing.  In the petition, the
appellee contends that our opinion "failed to properly consider the
evidence and the specifics of the trial judge's ruling" concerning the
testimony of William Miller, one of the experts who testified on
market value.  While conceding in its petition that Miller testified
that "if canceled the lease would be worth $4,600", the appellee
points out, and we agree, that Miller did not adopt $4,600 as his
opinion of value; however, we disagree with appellee's opinion
regarding the significance of this latter fact.  The appellee
concludes, as did the trial judge, that the jury was properly
instructed that it could not return a verdict for less than $59,500,
the value that was adopted by Miller as his opinion of value, and the
lowest opinion of value adopted by either of the expert witnesses. 
Appellee contends that we were wrong when we held that the trial judge
committed reversible error when he placed a lower limit of $59,500 on
the jury's verdict.  We respectfully disagree. The petition for
rehearing is DENIED.

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

DOROTHY C. THOMPSON 
VS.
CHARLES EDWARD THOMPSON

Court:TCA

Attorneys: 

BRETT A. YORK and CYNTHIA S. LYONS, WITH DONALD JAKE GAMBLE &
ASSOCIATES, OF CROSSVILLE, TENNESSEE, FOR APPELLANT

TOM BEESLEY, OF CROSSVILLE, TENNESSEE, FOR APPELLEE
                       
Judge: Sanders

First Paragraph:

The Plaintiff has appealed from a judgment of divorce, insisting the
trial court made an inequitable division of marital property.  We
cannot agree, and affirm.

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

NORMA C. TOLLIVER
VS. 
CLEO CARICO, et al
VS.
BILLY E. CALL, et ux
VS.
BETTY JO SEATS and JUNIOR PAUL HOLCOMB  
VS.
CLEO CARICO and husband, HARRY CARICO
VS.
BILLY E. CALL, BERNICE E. CALL, BETTY JO SEATS, and 
JUNIOR PAUL HOLCOMB

Court:TCA

Attorneys:                          

DAVID W. BLANKENSHIP OF KINGSPORT FOR APPELLANT
TIMOTHY W. HUDSON OF BRISTOL FOR APPELLEES

Judge: Goddard

First Paragraph:

In this boundary line dispute the Trial Court essentially fixed the
boundary line between property owned by Norma C. Tolliver--widow of
John Tolliver--and their two daughters, Johnnie Wilson and Vera
Hockett, and property owned by Cleo Carico, as insisted by Mrs.
Tolliver and her daughters, which prompted Mrs. Carico to appeal and
raise as her single issue, which we re-state, that the evidence
preponderates against the Trial Court's findings. AFFIRMED AND
REMANDED.

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

CLYDE TULL
VS.
PAUL WILSON

Court:TCA

Attorneys:                          

Michael L. Weinman,
TATUM AND TATUM, Henderson, Tennessee
Attorney for Plaintiff-Appellant.

Michael T. Tabor,
Jackson, Tennessee
Attorney for Defendant-Appellee.

Judge: FRANKS

First Paragraph:

In this action the plaintiff sought extraordinary relief to prevent
defendant from interfering with plaintiff's use of a roadway, and for
damages for past interference.  Plaintiff averred that he was entitled
to use the roadway because it was either a public road or he had
acquired the right through prescriptive use. AFFIRMED AND REMANDED.

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

STATE OF TENNESSEE
VS.
ROBERT R. BLACK

Court:TCCA

Attorneys:   

For the Appellant:                  For the Appellee:
Martha J. Yoakum                    Charles W. Burson
District Public Defender            Attorney General and Reporter
    
Laura Rule Hendricks                Karen M. Yacuzzo
Appellant Contract Attorney         Assistant Attorney General         
for the District Public Defenders   Criminal Justice Division                           
	Conference		                450 James Robertson Parkway                
810 Henley Street                	Nashville, TN 37243
									Knoxville, TN  37902        
                        
                                    William Paul Phillips
                                    District Attorney General
                                    P. O. Box 10
                                    Huntsville, TN  37756                       

Judge: Hayes

First Paragraph:

The appellant, Robert R. Black, was convicted by a Campbell County
jury of two counts of aggravated sexual battery, a Class B felony.
Tenn. Code Ann. S 39-13-504 (1991).  For each offense, the trial court
sentenced the appellant as a standard, range I offender to ten years
imprisonment in the Tennessee Department of Correction.  See Tenn.
Code Ann. S 40-35-112(a)(2) (1990).  The court ordered concurrent
service of the sentences.  The appellant now challenges the
sufficiency of the evidence supporting his convictions and further
asserts that his sentences are excessive. Following a review of the
record, we affirm the judgment of the trial court.

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

IVORY BROWN
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

For the Appellant:              For the Appellee:
Tom W. Crider                   Charles W. Burson
District Public Defender        Attorney General and Reporter
    
Periann S. Houghton             Sarah M. Branch
Asst. Public Defender           Assistant Attorney General  
107 S. Court Square             Criminal Justice Division
Trenton, TN  38282              450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                Clayburn L. Peeples
                                District Attorney General
                                109 East First Street
                                Trenton, TN  38382                        

Judge: Hayes

First Paragraph:

The appellant, Ivory Brown, appeals the Haywood County Circuit Court's
order denying his petition for post-conviction relief.  In this
appeal, the appellant contends that he was denied his constitutional
right to the effective assistance of counsel.  In his brief, the
appellant alleges that his trial counsel was ineffective based upon
counsel's: (A) failure to apprise the appellant of the charges against
him; (B) failure to contact "three to four" witnesses named by the
appellant; (C) failure to request a special jury instruction on
missing witnesses; and (D) failure to adequately prepare for trial.
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/BROWNIV_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
ROBERT CHAPMAN

Court:TCCA

Attorneys:  

For the Appellant:              For the Appellee:
Kim G. Sims                     Charles W. Burson
1729 Lamar Avenue               Attorney General and Reporter
Memphis, TN 38104               
                                Robin L. Harris
                                Assistant Attorney General
                                450 James Robertson Parkway 
                                Nashville, TN 37243-0493

                                John W. Pierotti
                                District Attorney General

                                David C. Henry
                                Assistant District Attorney
                                Criminal Justice Complex
                                Third Floor
                                201 Poplar
                                Memphis, TN 38103                        

Judge: Barker

First Paragraph:

The appellant, Robert Chapman, appeals as of right the sentences he
received as a result of convictions in the Shelby County Criminal
Court for attempted second degree murder and reckless endangerment. 
He was sentenced as a Range I standard offender to twelve (12) years
on the attempted second degree murder conviction and two years in a
workhouse for the reckless endangerment conviction.  The sentences
were ordered to be served consecutively. AFFIRMED.

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

STATE OF TENNESSEE
VS.
LEON BARNETT COLLIER

Court:TCCA

Attorneys:                          

For the Appellant:              For the Appellee:

Ardena J. Garth                 Charles W. Burson
District Public Defender        Attorney General and Reporter

Donna Robinson Miller           Michael J. Fahey, II
Asst. District Public Defender  Assistant Attorney General    
William A. Dobson               Criminal Justice Division
Asst. District Public Defender  450 James Robertson Parkway
Suite 300, 701 Cherry Street    Nashville, TN 37243
Chattanooga, TN  37402              
                                Kenneth Rucker
                                Legal Assistant

                                William H. Cox III
                                District Attorney General
                                City/County Courts Building
                                Room 300
                                Chattanooga, TN 37402

Judge: Hayes

First Paragraph:

The appellant, Leon Barnett Collier, was convicted by a Hamilton
County jury of the first degree murder of Marketta Green and the
attempted first degree murder of Eric Young.  Following these
convictions, the jury sentenced the appellant to life imprisonment
without the possibility of parole for the first degree murder of Ms.
Green.  The trial court imposed a twenty year sentence for the
attempted first degree murder conviction and ordered this sentence to
run consecutively with the sentence of life without parole. After
reviewing the record and applicable case law, we conclude that the
trial court did not commit error.  Accordingly, we affirm.

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

ROGER DAY
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:   

FOR THE APPELLANT:              FOR THE APPELLEE:
J. Blake Anderson               Charles W. Burson
Attorney at Law                 Attorney General & Reporter
200 East Main, Suite 110        500 Charlotte Avenue
Jackson, TN 38301               Nashville, TN 37243-0497

                                Clinton J. Morgan
                                Counsel for the State
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                James G. Woodall
                                District Attorney General
                                P.O. Box 2825
                                Jackson, TN 38302-2825

                                Donald H. Allen
                                Assistant District Attorney General
                                P.O. Box 2825
                                Jackson, TN 38302-2825
                       

Judge: Jones

First Paragraph:

The appellant, Roger Day, appeals as of right from a judgment of the
trial court dismissing his suit for post-conviction relief.  He
contends he was denied his constitutional right to the effective
assistance of counsel, and his guilty plea was neither voluntarily nor
intelligently entered. The evidence offered by the appellant during
the hearing is relatively weak.  Where the testimony of the appellant
and trial counsel, who testified for the state, conflicted, the trial
court resolved the conflicts in favor of the state.  In short, the
evidence in this case does not preponderate against the facts found by
the trial court. AFFIRMED.

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

LOUIS FRANCIS GIANNINI
VS
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

ROBERT M. FRIEDMAN          CHARLES W. BURSON
LAWRENCE W. WHITE           Attorney General and Reporter
Suite 3400
100 North Main Building     DEBORAH A. TULLIS
Memphis, TN 38103           Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            JOHN W. PIEROTTI
                            District Attorney General

                            DAVID SHAPIRO
                            Assistant District Attorney General
                            Criminal Justice Complex, Third Floor
                            201 Poplar
                            Memphis, TN 38103
                         

Judge: WELLES

First Paragraph:

The Defendant, Louis Giannini, appeals as of right the trial court's
denial of his petition for post-conviction relief and writ of error
coram nobis.   He presents the following issues for review: (1) That
the trial court erred by denying him a new trial from a writ of error
coram nobis because of newly discovered evidence; (2) that the
Defendant's due process rights were violated because he was force
medicated when he appeared at trial; and (3) that defense counsel
rendered ineffective assistance. AFFIRMED.

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

STATE OF TENNESSEE
VS.
MARVIN HILL, JR.

Court:TCCA

Attorneys:                          

R. Mack Garner                      Charles W. Burson
District Public Defender            Attorney General & Reporter
419 High Street                     500 Charlotte Avenue
Maryville, TN 37804                 Nashville, TN 37243-0497

                                    Elizabeth T. Ryan
                                    ASsistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    Michael L. Flynn
                                    District Attorney General
                                    363 Court Street
                                    Maryville, TN 37804-5906

                                    Edward P. Bailey, Jr.
                                    Assist. District Attorney General
                                    363 Court Street
                                    Maryville, TN 37804-5906


Judge: Jones

First Paragraph:

The appellant, Marvin Hill, Jr., appeals as of right from a judgment
of the trial court revoking his community corrections sentence.  The
appellant admits that he violated the conditions of his sentence.  He
tested positive for marijuana on two separate occasions; he failed to
report to the probation officer; and he violated the curfew.  In this
Court, he claims that the evidence adduced at the hearing was
insufficient to justify a revocation of the community corrections
sentence.  After a thorough review of the record, the briefs submitted
by the parties, and the law that controls the issue presented for
review, it is the opinion of this Court that the judgment of the trial
court should be affirmed pursuant to Rule 20, Tennessee Court of
Criminal Appeals.

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

JAMES JACKIE JONES
VS
CHARLES L. NOLES, WARDEN

Court:TCCA

Attorneys: 

For Appellant:                      For Appellee:
James Jackie Jones, Pro Se          Charles W. Burson
Cold Creek Correctional Facility    Attorney General & Reporter
P.O. Box 1000   
Henning, TN  38041                  Hunt S. Brown
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493
                                                
                                    Jerry N. Estes
                                    District Attorney General
                                    10th Judicial District
                                    Madison Avenue
                                    Athens, TN  37303                         

Judge: WADE

First Paragraph:

The pro se petitioner, James Jackie Jones, appeals the trial court's
denial of his petition for writ of habeas corpus.  The sole issue
presented for review is whether the dismissal was proper.  We hold
that it was and affirm the judgment of the trial court.

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

STATE OF TENNESSEE
VS.
TIMOTHY S. MYRICK

Court:TCCA

Attorneys: 

For the Appellant:              For the Appellee:

Guy T. Wilkinson                Charles W. Burson
District Public Defender        Attorney General and Reporter
    
Richard W. DeBerry              Sarah M. Branch
Asst. District Public Defender  Assistant Attorney General             
P. O. Box 663                	Criminal Justice Division
Camden, TN  38320           	450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                G. Robert Radford
                                District Attorney General

                                John Overton
                                Asst. District Attorney General
                                Hardin County Courthouse
                                Savannah, TN  38372                         

Judge: Hayes

First Paragraph:

The appellant, Timothy S. Myrick, appeals from a sentence imposed by
the Hardin County Circuit Court upon his plea of guilty to one count
of possession of a schedule II drug (hydromorphone) with intent to
deliver or sell, a class C felony; and to one count of unlawful
possession of drug paraphernalia, one count of failure to report an
accident, and one count of public intoxication, all misdemeanors. 
Pursuant to a negotiated plea, the appellant received an effective
sentence of three years as a range I offender.  The manner of service
of the sentence was submitted to the trial court for determination. 
Following a sentencing hearing, the trial court denied any form of
alternative sentence and imposed a sentence of incarceration in the
Department of Correction.  In this appeal, the appellant challenges
the trial court's denial of alternative sentencing. AFFIRMED.

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

STATE OF TENNESSEE
VS.
DALE KEVIN WATTERSON

Court:TCCA

Attorneys:                          

FOR THE APPELLANT:                  FOR THE APPELLEE:
ETHEL P. LAWS                       CHARLES W. BURSON
503 North Jackson St.               Attorney General & Reporter
Morristown, TN  37814
                                    ELIZABETH T. RYAN                                   
                                    Asst. Attorney General
                                    450 James Robertson Pkwy.
                                    Nashville, TN  37243-0493

                                    C. BERKELEY BELL
                                    District Attorney General

                                    VICTOR VAUGHN
                                    Asst. District Attorney General
                                    510 Allison St.
                                    Morristown, TN  37814
Judge: PEAY

First Paragraph:

The defendant was indicted in October 1995 for driving under the
influence (DUI).  The indictment included a second count alleging that
the defendant had been previously convicted three times of DUI in
violation of T.C.A. S 55-10-403.  On November 9, 1995, he was
convicted by a jury of DUI.  The defendant waived a bifurcated trial
as to the issue of his fourth offense and pled guilty to that offense.
 In exchange for this plea, the trial court agreed to impose the
minimum fine for the fourth offense.  The defendant was sentenced to
eleven months and twenty-nine days with a release eligibility date of
seventy-five percent.  AFFIRMED.

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

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