TBALink Opinion-Flash

February 21, 1997 -- Volume #3 -- Number #023

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 Opinions From TSC
00-New Opinions From TSC-Rules
08-New Opinions From TSC-Workers Comp Panel
12-New Opinions From TCA
17-New Opinions From TCCA

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George Dean
TBALink Chief Editor


THOMAS R. MURRAH
vs.    
AETNA LIFE AND CASUALTY

Court:TSC - Workers Comp Panel

Attorneys:                          

FOR APPELLANT:                  FOR APPELLEE:  
Karen R. Cicala                 A. Wilson Wages
80 Monroe Avenue                Alice L. Gallaher
Suite 410                       8120 Highway 51 North
Memphis, TN 38103               #7
                                Millington, TN 38053
                                
Judge: CLARK

First Paragraph:

In this appeal, the employer contends that the award of permanent
partial disability benefits based on twenty (20%) percent to each
upper extremity is excessive.  The employer also questions the trial
court's decision to commute to a lump sum the payment of forty (40%)
percent of the total award in addition to attorney fees. AFFIRMED.

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

DARIN M. POTTS
vs.
BEAMAN BOTTLING COMPANY and LUMBERMENS MUTUAL CASUALTY COMPANY

Court:TSC - Workers Comp Panel

Attorneys:                          

For the Appellants:                 For the Appellee: 
Richard C. Mangelsdorf, Jr.         Philip W. Kendrick
2300 First American Ctr.            5115 Maryland Way
Nashville, TN  37238-2300           Brentwood, TN  37027
    
Judge: BYERS

First Paragraph:

The trial judge found the plaintiff was 30% permanently partially
disabled as a result of a work-related injury occurring on March 4,
1994.  The trial court ordered the payment of temporary total
disability benefits from May 23, 1994 through July 5, 1994.  The trial
court held that plaintiff was not entitled to reimbursement for
unauthorized medical expenses. AFFIRMED AND REMANDED.

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

ALAN LEE PRESSLEY
vs.            
UNITED STATES FIDELITY AND GUARANTY COMPANY

Court:TSC - Workers Comp Panel

Attorneys:      

For Appellant:                      For Appellee:
Daryl R. Fansler                    Jennifer P. Craig
Fansler & Williams                  Moore & Smith
Knoxville, Tennessee                Knoxville, Tennessee
                    
Judge: Loser

First Paragraph:

In this appeal, the employer's insurer contends the evidence
preponderates against the trial court's finding that the employee has
suffered an injury arising out of the employment. AFFIRMED.

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

RONNIE SETTLES
vs.   
SHARPS MILL FOREST PRODUCTS INC. and OLD REPUBLIC 
INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:   

FOR APPELLANTS:                     FOR APPELLEE:  
Christopher V. Sockwell             Steve Beal
P. O. Box 357                       22 Monroe Street
Lawrenceburg, TN 38464              Lexington, TN 38351

Bennett L. Pugh
1700 Financial Center
505 N. 20th Street
Birmingham, AL 35203-2607                       

Judge: CLARK

First Paragraph:

The trial court awarded the plaintiff a permanent partial disability
of ten (10%) percent to the body as a whole and found his proper
compensation rate to be $366.68.  Defendants have appealed, alleging
that plaintiff did not prove that his facial disfigurement materially
affected his employability, and that the trial court erred in setting
the compensation rate at $366.68. AFFIRMED AS MODIFIED.

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

PEGGY J. SKAGGS
vs.     
PREFERRED RISK MUTUAL INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellant:                       For Appellee:
Julia S. Howard                      Donald B. Oakley
Hodges, Doughty & Carson             Morristown, Tennessee
Knoxville, Tennessee                         

Judge: Loser

First Paragraph:

The employer's insurer contends the evidence preponderates against the
trial court's finding that the employee's fatal heart attack arose out
of his employment. AFFIRMED.

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

JAMES W. SMITH
vs.   
WILSON COUNTY CONCRETE CO., INC. and AETNA CASUALTY & SURETY CO.

Court:TSC - Workers Comp Panel

Attorneys:                          

FOR THE APPELLANTS:                    FOR THE APPELLEE:
WILLIAM B. JAKES III                   HUGH GREEN            
ALICE MARGARET ESSARY                  100 Public Square     
300 James Robertson Parkway            Lebanon, TN 37081  
Court Square Building                                       
Nashville, TN 37210

Judge: RUSSELL

First Paragraph:

James W. Smith, the plaintiff/appellee, age 60, was a 35 years loyal
and totally satisfactory employee of the defendant/appellant concrete
marketing company.  His job was operating and maintaining a truck used
for mixing and delivering concrete, as well as doing mechanic and
other maintenance shop work. AFFIRMED.

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

DOUGLAS WAYMON TAYLOR
vs.    
BGL MINING COMPANY, INC. and AMERICAN MINING INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:   

For the Appellant:                  For the Appellees:
Thomas L. Wyatt                     Donald E. Warner
SUMMERS, McCREA & WYATT             Sean A. Hunt
Chattanooga, Tennessee              LEITNER, MOFFITT, WILLIAMS,
                                    DOOLEY & NAPOLITAN
                                    Nashville, Tennessee

                       
Judge: Brandt

First Paragraph:

The fundamental issue in this case is whether an injury on the way
from work occurring on a road neither owned nor maintained by the
employer, but which is the only available route from the work place,
was an injury "arising out of and in the course of employment." Tenn.
Code Ann. S50-6-102(a)(4). AFFIRMED.

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

ANGELA THURMAN
vs.                             
CNA INSURANCE COMPANIES and TRW COMMERCIAL STEERING DIVISION

Court:TSC - Workers Comp Panel

Attorneys:  

FOR APPELLANTS:                          FOR APPELLEE:
DAVID J. DEMING                          E. GUY HOLLIMAN       
First Union Tower, Suite 2200            WILLIAM JOSEPH BUTLER 
150 Fourth Avenue North                  P. O. Box 280          
Nashville, TN 37219-2494                 Lafayette, TN 37083                        

Judge: RUSSELL

First Paragraph:

The injured employee, Angela Thurman, age 28, suffered an injury
during the course and scope of her employment on September 7, 1994,
when a metal housing weighing between forty and fifty pounds fell from
a table onto her left foot.  The foot was crushed.  Subsequent medical
treatment included three surgical operations to free tendons, remove
dead tissue and facilitate healing. AFFIRMED, AS MODIFIED.

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

FRANCES W. ALMANY; and WILLIAM T. HALL and wife, 
NORMA JEAN HALL and LAWYERS TITLE INSURANCE CORP., by and on 
behalf of ROBERT L. WOODS
vs.
THOMAS A. CHRISTIE and wife, MARIA L. CHRISTIE; and 
GAIL P. PIGG, Substitute Trustee

Court:TCA

Attorneys: 

MICHAEL W. EDWARDS
177 E. Main Street
Hendersonville, Tennessee 37075

THOMAS F. BLOOM
500 Church Street, 5th Floor
Nashville, Tennessee 37219
    Attorneys for Plaintiffs/Appellants

GAIL P. PIGG
219 Second Avenue, North
First Floor Suite
Nashville, Tennessee 37201
    Attorney for Defendants/Appellees                         

Judge: CANTRELL

First Paragraph:

The question we must decide in this case is whether a purchaser of
real estate, whose purchase money is used in the closing to pay off
two prior mortgages, is subrogated to a position superior to a third
mortgage.  The Chancery Court of Sumner County refused to recognize
the subrogation. AFFIRMED AND REMANDED.

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

DAVID T. BAILEY and KNOX COUNTY E. LYNN WAGNER, in their own
03A01-9606-CV-00190 right and derivatively for the use and benefit of
Southeastern Healthcare Services, L.P.
vs.
TOM HOLBERT, as general partner of Southern Healthcare Services,
L.P.and MOORE'S PHARMACY, INC. d/b/a MARCUM'S HEALTHCARE SERVICES, and
CARL MARCUM, GINA MARCUM PINNEY, and TOM HOLBERT, as officers,
directors and/or employees and agents of and for Moore's Pharmacy,
Inc.and TOM HOLBERT, CARL MARCUM, and GINA MARCUM PINNEY, Individually

Court:TCA

Attorneys: 

DALE C. ALLEN and H. BRUCE GUYTON OF KNOXVILLE FOR APPELLANTS DAVID T.
BAILEY and E. LYNN WAGNER

WILLIAM K. ROGERS OF KINGSPORT FOR APPELLEE TOM HOLBERT

PATRICK LEDFORD OF KINGSPORT FOR APPELLEES MOORE'S PHARMACY, CARL
MARCUM and GINA MARCUM PINNEY

Judge: Goddard

First Paragraph:

This is a suit by David T. Bailey and E. Lynn Wagner in their own
right and derivatively for the use and benefit of Southeastern
Healthcare Services, L.P., a Limited Partnership in which they were
partners, against Tom Holbert, as general partner, Moore's Pharmacy,
Inc., d/b/a Marcum's Healthcare Services, and Carl Marcum and Gina
Marcum Pinney, as Officers and Directors and/or Employees and Agents
of and for Moore's Pharmacy, Inc., and Tom Holbert, Carl Marcum and
Gina Marcum Pinney, Individually.  The suit stems from the purchase by
Southeastern Healthcare Services of a unit dosage pharmacy business
from Moore's Pharmacy, Inc., for the sum of $275,000.  The complaint
alleged a cause of action for negligent mis- representation and breach
of warranty. AFFIRMED IN PART; VACATED IN PART and REMANDED.

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

GORDON L. BIRGE
vs.
THE BOEING COMPANY

Court:TCA

Attorneys:

JENNIFER B. MORTON and CAROL S. NICKLE, NICKLE & MORTON, LLC,
Knoxville, for Plaintiff-Appellee.

THOMAS M. HALE, KRAMER, RAYSON, LEAKE, RODGERS & MORGAN, Knoxville,
for Defendant-Appellant.

Judge: Franks

First Paragraph:

In this action for breach of contract, the Chancellor determined that
plaintiff was not entitled to recover damages, but declared the
contract could possibly be enforced in a subsequent action.  The
defendant has appealed from this judgment. AFFIRMED AS MODIFIED.

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

JOSEPH CHIDESTER and wife, KATHLEEN CHIDESTER 
vs.
L. D. ELLISTON, O.D.,

Court:TCA

Attorneys:

STEPHEN R. LEFFLER
LINDA D. FUTRELL
Memphis, Tennessee
Attorneys for Appellants

WILLIAM W. DUNLAP, JR.
Memphis, Tennessee
Attorney for Appellee                          

Judge: HIGHERS

First Paragraph:

In this medical malpractice action, the Plaintiffs, Joseph and
Kathleen Chidester, filed suit against the Defendant, Dr. L. D.
Elliston, for failing to diagnose the Plaintiff's malignant tumor. 
The trial court granted the Defendant's motion for summary judgment
holding that the Plaintiffs' cause of action is barred by the one year
statute of limitations.  The Plaintiffs' have appealed the trial
court's order arguing that the statute of limitations does not bar
this action because the Plaintiffs' cause of action did not accrue
until the Plaintiff's malignancy recurred. REVERSED AND REMANDED.

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

FRANK COLLIER AUCTION & REALTY COMPANY
vs.
JOE M. RICE and WAYNE B. GLASGOW, JR.
vs.
JOE E. HOLLAND d/b/a HOLLAND LAND SURVEYING

Court:TCA

Attorneys:  

JOHN L. WHITFIELD, JR.
Cavalier Building
95 White Bridge Road, Suite 509
Nashville, Tennessee 37205
    ATTORNEY FOR PLAINTIFF/APPELLEE

PHILLIPS M. SMALLING
P. O. Box 340
Byrdstown, Tennessee 38549
    ATTORNEY FOR DEFENDANT/APPELLANT                        

Judge: LEWIS

First Paragraph:

This is an appeal by defendant/appellant, Joe M. Rice, from the
decision of the trial court awarding Rice $5,600.00 tendered by
interpleader and dismissing his claims against plaintiff/appellee,
Frank Collier Auction & Realty Company ("Collier"), and defendant,
Wayne B. Glasgow.  The facts out of which this matter arose are as
follows. AFFIRMED AND REMANDED.

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

RONALD L. DAVIS
vs.
TENNESSEE DEPARTMENT OF CORRECTION and DONAL CAMPBELL, Commissioner

Court:TCA

Attorneys: 

RONALD L. DAVIS, PRO SE
N.W.C.C.
Rt. 1 Box 660
Tiptonville, TN 38079

CHARLES W. BURSON
Attorney General and Reporter

BRENDA RHOTON LITTLE
Counsel for the State
Parker, Allen & Crawford
Suite 511, Cummins Station
209 10th Avenue, South
Nashville, Tennessee 37203
    ATTORNEY FOR RESPONDENTS/APPELLEES                         

Judge: LEWIS

First Paragraph:

This is an appeal by petitioner/appellant, Ronald L. Davis, from the
decision of the chancery court granting the motion for summary
judgment filed by respondents/appellees, the Tennessee Department of
Correction ("the Department") and Donal Campbell, Commissioner.  The
order resulted in the dismissal of Petitioner's petition for a
declaratory judgment that the Department had incorrectly calculated
Petitioner's release eligibility date and thereby violated the Ex Post
Facto Clause of the United State Constitution. AFFIRMED AND REMANDED.

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

LOVELL & MALONE, INC.
vs.
COMMONWEALTH LIFE INSURANCE COMPANY and CAPITAL HOLDING CORPORATION

Court:TCA

Attorneys: 

FRED E. COWDEN, JR.
211 Third Avenue North
P. O. Box 198288
Nashville, Tennessee 37219
    Attorney for Plaintiff/Appellee

WILLIAM R. O'BRYAN, JR.
MARY ELLEN MORRIS
TRABUE, STURDIVANT & DEWITT
511 Union Street
2500 Nashville City Center
Nashville, Tennessee 37219-1738
    Attorneys for Defendants/Appellants                         

Judge: CANTRELL

First Paragraph:

The Chancery Court entered a judgment for the plaintiff mortgage loan
correspondent, finding that the defendant insurance company had
breached the correspondent agreement by refusing to pay the required
termination fee after terminating the contract without cause.  The
insurance company argues on appeal that it was not obligated to pay
the fee, because valid grounds existed for the termination. AFFIRMED
AND REMANDED.

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

FRANCES ULRICH
vs.
WILLIAM AUGUST ULRICH

Court:TCA

Attorneys:   

ROGER A. SINDLE
103 Bluegrass Commons Boulevard
P. O. Box 738
Hendersonville, Tennessee 37077-0738 
    ATTORNEY FOR PLAINTIFF/APPELLEE

CURTIS M. LINCOLN
175 East Main Street
Hendersonville, Tennessee 37075
    ATTORNEY FOR DEFENDANT/APPELLANT                       

Judge: LEWIS

First Paragraph:

This is an appeal by defendant William August Ulrich (the "Husband"),
from the judgment of the trial court finding him in contempt for
violating the court's final order regarding alimony to be paid to his
former wife, plaintiff Frances Ulrich (the "Wife").  Finding the
amount of alimony arrearages to be $1,668.47, the court ordered the
Husband to pay this amount and set forth the method for calculating
future alimony payments.  In addition, the Court awarded the Wife
$3,687.50 in attorney's fees. AFFIRMED AND REMANDED.

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

VENTURE EXPRESS, INC.
vs.
RAEFORD TRUCKING COMPANY, MOTOR TRUCK EQUIPMENT, INC., R. L. KEITH,
Individually, and HERBERT KEITH, Individually, and JOSEPH KEITH,
Individually

Court:TCA

Attorneys:  

ROLAND M. LOWELL
BRUCE, WEATHERS, CORLEY, DUGHMAN & LYLE
First American Center, 20th Floor
315 Deaderick Street
Nashville, Tennessee 37238-2075
    Attorney for Plaintiff/Appellant

DOUGLAS E. JONES
JONES & ROGERS
SunTrust Bank Building, Suite 1550
201 Fourth Avenue, North
Nashville, Tennessee 37219
    Attorney for Defendants/Appellees                        

Judge: CANTREL

First Paragraph:

The primary question in this appeal is whether a contract reciting a
separate consideration for a non-compete provision amounts to a
promise to pay that amount if the seller breaches the non-compete
provision.  The Chancery Court of Davidson County held that the
contract did not provide for liquidated damages. AFFIRMED AND
REMANDED.

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

WASTE MANAGEMENT, INC. OF TENNESSEE
vs.
SOUTH CENTRAL BELL TELEPHONE COMPANY

Court:TCA

Attorneys: 

For the Plaintiff/Appellee:         For the Defendant/Appellant:
Angus Gillis, III                   Steven E. Anderson
SCHULMAN, LeROY & BENNETT           BASS, BERRY & SIMS
Nashville, Tennessee                Nashville, Tennessee
                         
Judge: KOCH

First Paragraph:

This appeal stems from an incident in which a piece of broken
telephone pole being dragged behind a garbage truck struck a
pedestrian.  The pedestrian sued the owner of the truck, the truck
driver, and the telephone company in the Circuit Court for Davidson
County.  After the truck's owner settled all the pedestrian's claims,
the trial court conducted a bench trial on the remaining claims
between the truck owner and the telephone company and awarded the
truck owner a $27,114.47 judgment against the telephone company.  On
this appeal, the telephone company asserts that the final judgment is
inconsistent with the trial court's initial finding that the
intervening negligence of an unknown driver, not the telephone
company's installation or maintenance of its equipment, proximately
caused the pedestrian's injuries. MODIFIED AND REMANDED.

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

LINDA RUTH DALTON WELCH
vs.
GARY MITCHELL WELCH

Court:TCA

Attorneys:    

Carl R. Ogle, Jr., Jefferson City, for the Appellant
Kelley Hinsley, Morristown, for the Appellee                      

Judge: INMAN

First Paragraph:

A final judgment was entered in this case on July 11, 1988. A motion
to reconsider was filed August 10, 1988.  It remained dormant for
eight years, and was denied June 25, 1996.  The defendant filed a
Notice of Appeal on July 24, 1996, from the Order denying the motion
to reconsider. DISMISSED.

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

BRIAN WOLNEY and WIFE, MELISSA WOLNEY 
vs.
LISA M. EMMONS and WELLS FARGO ARMORED SERVICE CORPORATION

Court:TCA

Attorneys: 

For the Plaintiffs/Appellants:      For the Defendants/Appellees:
Stanley J. Kline                    Marc O. Dedman           
Memphis, Tennessee                  Memphis, Tennessee                         

Judge: LILLARD

First Paragraph:

This is a suit for damages brought by Plaintiff Brian Wolney
("Wolney"), with his wife Melissa Wolney, against Defendants Wells
Fargo Armored Service Corporation ("WFA") and Lisa M. Emmons
("Emmons").  Wolney sued for personal injuries he sustained in an
accident while riding as a passenger in a vehicle driven by Emmons,
but owned by WFA.  The trial court granted summary judgment in favor
of WFA, finding that Wolney's tort claim against WFA was barred
because Wolney was WFA's statutory employee.  The Wolneys appeal the
grant of summary judgment. AFFIRMED.

URL:http://www.tba.org/tba_files/TCA/WOLNEY2_OPN.WP6
URL:http://www.tba.org/tba_files/TCA/WOLNEY2_ORD.WP6
Opinion-Flash

CHARLES AUSTIN
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:    

For the Appellant:                  For the Appellee:
KATHLEEN G. MORRIS                  CHARLES W. BURSON
P.O. Box 128091                     Attorney General and Reporter
Nashville, TN 37212
                                    ELLEN H. POLLACK
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    VICTOR S. JOHNSON, III
                                    District Attorney General

                                    NICHOLAS D. BAILEY
                                    Asst. District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue, N.
                                    Nashville, TN 37201-1649                      

Judge: RILEY

First Paragraph:

The petitioner, Charles Austin, appeals the order of the Criminal
Court of Davidson County denying his petition for post-conviction
relief.  Petitioner filed his petition for post-conviction relief
alleging ineffective assistance of counsel.  The trial court found
that petitioner did not prove ineffective assistance of counsel under
the standard established by the United States Supreme Court in
Strickland v. Washington and dismissed the petition.  AFFIRMED.

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

CHARLES AUSTIN
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:
DWIGHT E. SCOTT                     CHARLES W. BURSON
4100 Colorado Avenue                Attorney General and Reporter
Nashville, TN 37209
                                    DARYL J. BRAND
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    VICTOR S. JOHNSON, III
                                    District Attorney General

                                    NICHOLAS D. BAILEY
                                    Assist District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue, N.
                                    Nashville, TN 37201-1649                        

Judge: RILEY

First Paragraph:

The petitioner, Joe Thomas Baker, Jr., appeals the order of the
Criminal Court of Davidson County dismissing his petition for writ of
habeas corpus.  He is presently serving concurrent sentences of life
imprisonment and 35 years for first degree murder and armed robbery. 
After a hearing, the trial court found that he was in the lawful
custody of the Tennessee Department of Correction and dismissed his
petition. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/BAKERJT2_OPN.WP6
Opinion-Flash

ROY BARNETT
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant:                      For the Appellee:
Roy Barnett #111627                     Charles W. Burson
Southeastern Tennessee State            Attorney General and Reporter
 Correctional Facility                          
Route 4, Box 600
Pikeville, TN 37367                     Eugene Honea
                                        Assistant Attorney General
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493

                                        C. Berkeley Bell, Jr.
                                        District Attorney General

                                        John F. Dugger, Jr.
                                        Assistant District Attorney
                                        510 Allison Street
                                        Morristown, TN 37814                          

Judge: Barker

First Paragraph:

The appellant, Roy Barnett, appeals as of right the summary dismissal
of his post-conviction petition by the Hamblen County Criminal Court. 
Appellant is currently serving three (3) concurrent thirty-five (35)
year sentences as a result of his 1986 convictions for three (3)
counts of aggravated sexual battery.  The convictions were affirmed by
this Court in 1987.  See State v. Roy Barnett, No. 240 (Tenn. Crim.
App. at Knoxville, July 8, 1987).  He filed this post-conviction
petition, pro se, on September 29, 1995 alleging ineffective
assistance of counsel, prosecutorial misconduct and improper action
taken by the trial judge.  This is appellant's first petition for
post-conviction relief. AFFIRMED PURSUANT TO RULE 20.

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

VICTOR JAMES CAZES
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:
Peter D. Heil                       Charles W. Burson
Attorney at Law                     Attorney General & Reporter
P.O. Box 40651                      500 Charlotte Avenue
Nashville, TN 37204                 Nashville, TN 37243-0497

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

                                    John W. Pierotti
                                    District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103
        
                                    John W. Campbell
                                    Assist District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103                        

Judge: Jones

First Paragraph:

The appellant, Victor James Cazes, appeals as of right from a judgment
of the trial court summarily dismissing his suit for post-conviction
relief.  The trial court found the ground asserted is not cognizable
in a post-conviction suit because it does not embrace a constitutional
issue, the ground was previously determined, and, assuming arguendo
the ground is actionable, it was harmless error in the context of the
trial record.  The appellant contends he is entitled to an evidentiary
hearing because the trial court ignored Tenn. R. Evid. 609(a)(3),
which "impermissibly burdened Appellant's right to testify." AFFIRMED.

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

STATE OF TENNESSEE
vs.
STACY DOWLEN

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:
Michael R. Jones                    Charles W. Burson
District Public Defender            Attorney General & Reporter 
113 Sixth Avenue, West
Springfield, TN 37172               Susan Rosen
                                    Counsel for the State
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493
    
                                    John Wesley Carney, Jr.
                                    District Attorney General
    
                                    Dent Morriss    
                                    Asst. Dist. Attorney General
                                    507 Public Square
                                    Springfield, TN 37172                         

Judge: SUMMERS

First Paragraph:

The appellant, Stacy Dowlen, was indicted for first degree murder.  He
was found guilty by a jury of second degree murder.  He appeals
raising the following issues for our review:  (1)  whether the
evidence was sufficient to support his conviction; and (2)  whether
the trial court erred in allowing the prosecution to examine its own
witness using prior inconsistent statements. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/DOWLEN_OPN.WP6
Opinion-Flash
 
STATE OF TENNESSEE
vs.
ANTHONY F. DRIES

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:
Michael J. Gatlin                   Charles W. Burson
Attorney at Law                     Attorney General & Reporter 
643 South Highland B
Memphis, TN 38103                   Robin L. Harris
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    William L. Gibbons
                                    District Attorney General(Present)

                                    John W. Pierotti
                                    District Attorney General (Former)  
                                    Thomas Henderson
                                    Asst. Dist. Attorney General
                                    Criminal Justice Complex
                                    Third Floor
                                    201 Poplar
                                    Memphis, TN 38103                         

Judge: SUMMERS

First Paragraph:

The appellant, Anthony F. Dries, pled nolo contendere to one count of
possession of a gambling device and two counts of gambling promotion. 
He was fined one hundred dollars.  He filed a motion to dismiss and
expunge.  The motion was denied.  On appeal, he argues that his plea
should have been voided because prosecution was commenced outside the
statute of limitations.  We disagree and affirm the trial court.
AFFIRMED.

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

ALEJANDROS GAUNA
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:     

FOR THE APPELLANT                   FOR THE APPELLEE
Shara A. Flacy                      Charles W. Burson
District Public Defender            Attorney General and Reporter
                                    450 James Robertson Parkway
William C. Bright                   Nashville, TN  37243
Assistant Public Defender
22nd Judicial District              M. Allison Thompson
122 No. 2nd Street                  Assistant Attorney General
P.O. Box 1208                       450 James Robertson Parkway
Pulaski, TN 38478                   Nashville, TN  378243

                                    T. Michael Bottoms
                                    District Attorney General

                                    Lee Bailey
                                    Asst. Dist. Attorney General
                                    10 Public Square, Box 1619
                                    Columbia, TN  38401
                     

Judge: LAFFERTY

First Paragraph:

The appellant, Alejandros Gauna, has appealed as of right from a
judgment of the trial court of the Circuit Court of Maury County in
revoking the appellant's probation.  The appellant presents two issues
for consideration:  (1)  the trial court committed error in allowing
hearsay statements of a Georgia probation officer, who was not
present, into evidence at a revocation hearing; and (2)  the trial
court erred in ordering the appellant to serve the remainder of his
sentence and not considering an alternative sentence. AFFIRMED.

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

GREGORY L. HATTON
vs.
STATE OF TENNESSEE

Court:TCCA

Judge: JONES

First Paragraph:

This matter is before the Court upon the state's motion to affirm the
judgment of the trial court under Rule 20, Rules of the Court of
Criminal Appeals.  The case before this Court represents an appeal
from the trial court's denial of the petitioner's petition for writ of
habeas corpus.  The record was filed on November 14, 1996, and the
petitioner filed his brief on December 12, 1996.  Though the record
does not contain the indictment at issue, thereby precluding the Court
from conducting an adequate review, the petitioner asserts in his
brief that he was originally indicted for rape in July 1977, and was
subsequently convicted of the same.  In the present appeal, the
petitioner, relying in part upon State v. Roger Dale Hill, No.
01C01-9508 CC-00267 (Tenn. Crim. App. June 20, 1996), contends the
judgment entered against him is void because the indictment failed to
allege the mens rea of the offense charged.

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

STATE OF TENNESSEE
vs.
EDWARD FRANK HENRY

Court:TCCA

Attorneys:     

FOR THE APPELLANT:                  FOR THE APPELLEE:
EDWARD HENRY                        CHARLES BURSON
Pro Se                              Attorney General & Reporter
Southcentral Correctional Center
P.O. Box 279, X-E124                LISA NAYLOR
Clifton, Tennessee 38425-0279       Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, Tennessee 37243-0493

                                    DAN ALSOBROOKS
                                    District Attorney General

                                    JAMES KIRBY
                                    Assist District Attorney General
                                    105 Sycamore Street 
                                    Ashland City, Tennessee 37015                     

Judge: RILEY

First Paragraph:

The defendant appeals from the denial of pretrial jail credits.  In
his original sentencing hearing, Henry received two consecutive
twenty-year sentences for two counts of aggravated rape.  On appeal,
the Supreme Court reversed the consecutive sentences and ordered the
sentences to run concurrently.  State v. Henry, 834 S.W.2d 273 (Tenn.
1992).  Henry then experienced problems with the Department of
Correction (DOC) regarding the calculation of his pretrial jail
credits.  Apparently at the request of DOC, Henry filed a motion with
the trial court to amend the judgments so as to reflect equal pretrial
jail credit on each count.  The trial court concluded that he was
entitled to pretrial jail credit only as to one case.  The state
maintains that pretrial jail credit for both cases gives Henry a
double credit.  REMANDED FOR FURTHER PROCEEDINGS.

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

STATE OF TENNESSE 
vs.
MARY HOPSON

Court:TCCA

Attorneys: 

FOR THE APPELLANT                   FOR THE APPELLEE
James D. White, Jr.                 Charles W. Burson
Attorney at Law                     Attorney General and Reporter
101 Green St.                       450 James Robertson Parkway
Celina, TN  38551                   Nashville, TN  37243
-----
                                    Michael J. Fahey, II
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  378243

                                    William Locke
                                    District Attoney General
                                    Pro Tempore
                                    P. O. Box 410
                                    McMinnville, TN  37110                         

Judge: LAFFERTY

First Paragraph:

This is an interlocutory appeal under Rule 9 of the Tennessee Rules of
Appellate Procedure to decide whether the district attorney general
abused his discretion in denying pre-trial diversion.  The trial court
affirmed the denial.  AFFIRMED.

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

ANDREA JONES
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

FOR THE APPELLANT:                  FOR THE APPELLEE:
Andrea Jones, Pro Se                Charles W. Burson
Lake County Regional Facility       Attorney General & Reporter
Route 1, Box 330                    500 Charlotte Avenue
Tiptonville, TN 38079-9775          Nashville, TN 37243-0497

                                    Deborah A. Tullis
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    John W. Pierotti
                                    District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103

                                    Alanda Horne
                                    Assist District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103

Judge: Jones

First Paragraph:

The appellant, Andrea Jones, has appealed as of right from a judgment
of the trial court summarily dismissing his suit for post-conviction
relief.  The trial court found the ground alleged in the petition is
not cognizable in a post-conviction suit and the suit is barred by the
statute of limitations.  The appellant contends the sentences imposed
by the trial court are illegal.  After a thorough review of the
record, the briefs submitted by the parties, and the law which governs
the issue presented for review, it is the opinion of this Court the
judgment of the trial court should be affirmed pursuant to Rule 20,
Tennessee Court of Criminal Appeals. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/JONES3_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
RICHARD RICARDO KING

Court:TCCA

Attorneys:     

For the Appellant:                  For the Appellee:
JEFFREY A. DeVASHER                 CHARLES W. BURSON
(on appeal)                         Attorney General and Reporter
Senior Assistant Public Defender
1202 Stahlman Building              SARAH M. BRANCH
Nashville, TN 37201                 Assistant Attorney General
                                    Criminal Justice Division
ROBERT M. ROBINSON                  450 James Robertson Parkway
(at sentencing hearing)             Nashville, TN 37243
Assistant Public Defender               
1202 Stahlman Building              VICTOR S. JOHNSON, III
Nashville, TN 37201                 District Attorney General
                            
                                    JOHN ZIMMERMANN
                                    Asst. District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue, N.
                                    Nashville, TN 37201-1649                     

Judge: RILEY

First Paragraph:

Richard Ricardo King appeals the sentences imposed by the Criminal
Court of Davidson County following his guilty plea to one (1) count of
the sale of cocaine over .5 grams and three (3) counts of the sale of
cocaine in an amount over 26 grams.  The appellant was sentenced to
ten (10) years confinement on each count to be served concurrently.  
The appellant claims that his sentences are excessive as a Range I,
Standard Offender in light of certain mitigating factors not
considered by the trial court.  T.C.A. S 40-35-113.  Further, he
claims that one of the enhancement factors considered by the trial
court was not allowed by the statute, thereby rendering the ten-year
sentences unreasonable.  T.C.A. S40-35-114(8). AFFIRMED.
 
URL:http://www.tba.org/tba_files/TCCA/KINGRR_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
KEITH BRANDON LYTE

Court:TCCA

Attorneys: 

For the Appellant:                  For the Appellee:
G. Stephen Davis                    Charles W. Burson
District Public Defender            Attorney General of Tennessee
208 N. Mill Avenue                      and             
P.O. Box 742                        Sarah M. Branch
Dyersburg, TN 38025-0742            Assistant Attorney General 
                                        of Tennessee 
                                    450 James Robertson Parkway     
                                    Nashville, TN 37243-0493

                                    C. Phillip Bivens
                                    District Attorney General
                                    P.O. Drawer E
                                    Dyersburg, TN 38024                         

Judge: Tipton

First Paragraph:

The defendant, Keith Brandon Lyte, appeals as of right from his
sentences imposed by the Lake County Circuit Court for his two
convictions of possession of over one-half gram of cocaine for resale,
Class B felonies.  As a Range I, standard offender, he received
concurrent sentences of ten years in the custody of the Department of
Correction and was fined $2,000.00 for each conviction.  The defendant
contends that the trial court erred by refusing to grant him some form
of sentencing alternative to confinement.  We disagree. AFFIRMED.

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

TERRY MERRELL
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:
THURMAN T. McLEAN, Jr.              CHARLES W. BURSON
Dale, Rosenberg & McLean            Attorney General and Reporter
221 Fourth Avenue, N.
Fifth Floor                         LISA A. NAYLOR
Nashville, TN 37219                 Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    VICTOR S. JOHNSON, III
                                    District Attorney General

                                    KATRIN NOVAK MILLER
                                    Assist District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue, N.
                                    Nashville, TN 37201-1649                          

Judge: RILEY

First Paragraph:

The petitioner, Terry Merrell, appeals the order of the Criminal Court
of Davidson County dismissing his petition for writ of habeas corpus. 
He is presently serving a four (4) year sentence for aggravated
assault.  After a hearing, the trial court found that he was in the
lawful custody of the Tennessee Department of Correction and dismissed
his petition.  AFFIRMED.

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

STATE OF TENNESSEE
vs.         
CHRISTIE QUICK

Court:TCCA

Attorneys:

FOR THE APPELLANT                   FOR THE APPELLEE
Thomas C. Faris                     Charles W. Burson
101 S. College Street               Attorney General and Reporter
Public Square                       450 James Robertson Parkway
Winchester, Tennessee 37398         Nashville, Tennessee 37243-0493
                    
                                    Timothy F. Behan                                        
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, Tennessee 37243-0493

                                    C. Michael Lane
                                    District Attorney General
                                    P.O. Box 147   
                                    Manchester, Tennessee 37355

                                    Stephen E. Weitzman
                                    Assist District Attorney General
                                    P.O. Box 147   
                                    Manchester, Tennessee 37355                          

Judge:  Barker

First Paragraph:

The Appellant, Christie Quick, appeals the Coffee County Circuit
Court's judgment affirming the Coffee County assistant district
attorney's denial of her pretrial diversion.  She argues on appeal
that the assistant district attorney abused his discretion when he
denied the pretrial diversion.  We have carefully reviewed the record
on appeal and we agree.  REVERSED AND REMANDED.

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

KENNETH WAYNE SAMS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:   

FOR THE APPELLANT:                  FOR THE APPELLEE:
Marian C. Fordyce                   Charles W. Burson
Attorney at Law                     Attorney General & Reporter
129 Second Avenue, North            500 Charlotte Avenue
Nashville, TN 37201                 Nashville, TN 37243-0497

                                    Michael J. Fahey, II
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    Victor S. Johnson, III
                                    District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue, North
                                    Nashville, TN 37201-1649

                                    William R. Reed
                                    Assist District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue, North
                                    Nashville, TN 37201-1649                       

Judge: Jones

First Paragraph:

The appellant, Kenneth Wayne Sams, appeals as of right from the
judgment of the trial court dismissing his suit for post-conviction
relief after an evidentiary hearing.  The trial court found that the
pleas of guilty entered by the appellant were voluntarily, knowingly,
and intelligently entered.  The court further found the appellant
received the effective assistance of counsel as guaranteed by the
Sixth Amendment to the United States Constitution and Article I, S 9
of the Tennessee Constitution.  In this Court, the appellant
challenges both findings of fact made by the trial court. AFFIRMED
PURSUANT TO RULE 20.

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

ANTHONY SCALES
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:
MARK CHAPMAN                        CHARLES W. BURSON
3608 Chesapeake Drive               Attorney General and Reporter
Nashville, TN 37207
                                    TIMOTHY F. BEHAN
                                    Assist District Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    VICTOR S. JOHNSON
                                    District Attorney General

                                    KATRIN NOVAK MILLER
                                    Assist District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue North
                                    Nashville, TN 37201-1649                        

Judge: WELLES

First Paragraph:

This is an appeal as of right from the judgment of the trial court
denying the Petitioner post-conviction relief.  The Petitioner
presents only one issue for review: That his trial counsel rendered
ineffective assistance by failing to present a witness for his defense
at a pretrial hearing to suppress evidence. AFFIRMED.

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

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