TBALink Opinion-Flash

October 28, 1997 -- Volume #3 -- Number #109

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

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TBALink Chief Editor


LINDA GRANTHAM and      
WILBURN GRANTHAM
VS.
JACKSON-MADISON COUNTY  
GENERAL HOSPITAL DISTRICT

Court:TSC

Attorneys:

FOR APPELLANTS:                 FOR APPELLEE:

William G. Hatton               Jerry D. Kizer, Jr.
Bolivar                         Dale Conder, Jr.
                                Jackson
                          
Judge:HOLDER

First Paragraph:

This appeal addresses a plaintiff's ability to amend a complaint to
reflect a defendant's correct name under the relation back provisions
of Rule 15.03.  The trial court permitted the plaintiffs to amend
their complaint.  The appellate court reversed, holding that the
plaintiffs were precluded from amending their complaint to reflect a
new defendant because notice was served on the defendant after the
expiration of the statute of limitations.  We reverse the appellate
court and hold that:  (1)  the amendment did not name a new party for
purposes of Rule 15.03; and (2) the amendment relates back to the
original filing of the complaint.

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

WILLIAM GAYLE WARREN
VS.
THE ESTATE OF JERRY N. KIRK,        
DECEASED AND BELTON DUNCAN d/b/a    
DELTA TREE SERVICE          
                
Court:TSC

Attorneys:
For Plaintiff-Appellant:                    For Defendant-Appellee:

 Joseph C. Langston                         Stephen Craig Kennedy
 Langston, Langston, Michael                Deusner & Kennedy
 & Bowen, P.A.                              Selmer
 Bonneville, MS

 Kent E. Smith
 Webb, Sanders, Deaton, 
 Balducci, Smith & Faulks
 Oxford, MS
                          
Judge:REID

First Paragraph:

This case presents for review the question of whether summary judgment
is appropriate under Tenn. Code Ann. S 55-10-311 (1993), where the
defendant asserts in an action for injury caused by the negligent
operation of the defendant's automobile, that at the time of the
accident, there was no agency or master-servant relationship between
the defendant and the driver.

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

                IN RE: AMENDMENT TO RULE 12,    
                 RULES OF THE SUPREME COURT 
                        OF TENNESSEE        

Court:TSC - Rules
                         
Judge: Anderson

First Paragraph:

Rule 12 of the Rules of the Supreme Court of Tennessee is hereby
amended by deleting the second paragraph of Section 2 in its entirety
and substituting in its place the following.

URL:http://www.tba.org/tba_files/COURT/FILENAME
Opinion-Flash

                        SUPREME COURT OF TENNESSEE
                    STATE LIST FOR PERMISSION TO APPEAL
                            October 27, 1997        

Court:TSC - Rules
                         
URL:http://www.tba.org/tba_files/TSC_RULES/rule12_amd.WP6
Opinion-Flash

W. M. BARR & COMPANY, INC.
vs.
COMMERCIAL UNION INSURANCE      
COMPANIES           

Court:TCA

Attorneys:

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

Carl H. Langschmidt, Jr.            Bruce D. Brooke  
Cannon F. Allen                     Memphis, Tennessee
Memphis, Tennessee                  Frank C. Bedinger, III, Of Counsel
                                    Atlanta, Georgia 
                                             
Judge: LILLARD

First Paragraph:
    
In this case, the plaintiff sought to establish the existence and
contents of lost insurance policies allegedly issued by the defendant
insurance company.  The trial court found that the policies existed
for the years in question, found the proof sufficient to determine the
terms of the policies, and found the defendant responsible for each
policy.  We affirm in part and reverse in part.

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

JAMES ROBINSON
vs.
CUNA MUTUAL INSURANCE GROUP

Court:TCA

Attorneys:

    Clyde W. Watson of Camden
    For Plaintiff-Appellee

    J. Whitten Gurkin of Memphis
    For Defendant-Appellant
                          
Judge:CRAWFORD

First Paragraph:

This case involves a claim under a disability credit insurance policy.
 Defendant, CUNA Mutual Insurance Group (CUNA), appeals from the order
of the trial court denying its motion for summary judgment and
granting summary judgment to plaintiff, James Robinson.

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

MOZELLA WRIGHT and
CLEVIN WRIGHT
vs.
CITY OF ROSSVILLE, TENNESSEE

Court:TCA

Attorneys:

Lanier Fogg, Memphis, Tennessee
Attorney for Plaintiffs/Appellants.

Charles A. Sevier, SEVIER & PHILLIPS, P.C., Memphis, Tennessee
Attorney for Defendant/Appellee City of Rossville, Tennessee.
                          
Judge:FARMER

First Paragraph:

Mozella Wright appeals from the judgment of the trial court dismissing
her cause of action for personal injuries sustained in an automobile
accident against the City of Rossville ("City" or "Appellee").  It is
alleged that Mrs. Wright's injuries resulted from the negligence of
John Beasley, Jr., a sergeant with the Rossville Police Department. 
The trial court dismissed the complaint upon finding Mrs. Wright 50%
or more negligent after a bench trial.  For reasons expressed below,
we affirm.

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

STATE OF TENNESSEE
vs.
TYRONE CLAY

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

VANEDDA PRINCE                  CHARLES W. BURSON
Post Office Box 26              Attorney General and Reporter
Union City, TN  38261   
(ON APPEAL)                     GEORGIA BLYTHE FELNER
                                Assistant Attorney General                          
                                Criminal Justice Division
STEVE DAVIS                     450 James Robertson Parkway
District Public Defender        Nashville, TN 37243-0493                 
P. O. Box 742                   
Dyersburg, TN  38025-0742       
                                C. PHILLIP BIVENS
(AT TRIAL)                      District Attorney General

                                JAMES E. LANIER
                                Asst. District Attorney General
                                P. O. DRAWER E
                                DYERSBURG, TN  38024                          

Judge: Hayes

First Paragraph:

The appellant, Tyrone Clay, presents a delayed appeal challenging the
length of sentences imposed by the Lake County Circuit Court.  On the
morning of the appellant's scheduled trial, a plea agreement was
reached, whereby the appellant agreed to plead guilty to three class B
felony sales of cocaine in exchange for three concurrent sentences as
a range I offender.  The State had previously filed notice of its
intent to seek enhanced punishment of the appellant as a range II,
multiple offender based upon allegations of four prior felony
convictions.  The trial court subsequently sentenced the appellant to
three concurrent eleven year sentences for these offenses.    In this
appeal, the appellant specifically contends that the trial court
failed to consider applicable mitigating factors which resulted in an
excessive sentence.

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

STATE OF TENNESSEE
VS.
TERESA FITHIAM

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEE:

SUSANNA L. THOMAS                   JOHN KNOX WALKUP
Assistant Public Defender           Attorney General and Reporter
102 Mims Avenue
Newport, TN 37821                   MARVIN E. CLEMENTS, JR.
                                    Assistant Attorney General
                                    425 5th Avenue North
                                    Nashville, TN 37243

                                    AL SCHUMTZER, JR.
                                    District Attorney General

                                    JAMES B. DUNN
                                    Asst District Attorney General
                                    339A East Main Street
                                    Newport, TN 37821
                          

Judge:WELLES

First Paragraph:
                                    
This is a direct appeal from a guilty plea pursuant to Rule
37(b)(2)(ii) of the Tennessee Rules of Criminal Procedure.  Pursuant
to a plea agreement, the Defendant pleaded guilty to one count of DUI
and one count of child endangerment.  Both offenses are Class A
misdemeanors.  As part of the agreement, she was sentenced to a
forty-eight (48) hour mandatory incarceration plus eleven (11) months
and twenty-seven (27) days of probation for the DUI conviction and a
mandatory thirty (30) day incarceration plus ten (10) months and
twenty-nine (29) days of probation for the child endangerment
conviction.  Also, the Defendant reserved the right to appeal the
"legality" of her sentence.  In this appeal, she argues that the
statute imposing a mandatory thirty-day incarceration period for child
endangerment is unconstitutional as cruel and unusual punishment
violative of the Eighth and Fourteenth Amendments to the United States
Constitution.  We dismiss the appeal and affirm the judgment of the
trial court.

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

STATE OF TENNESSEE
vs.
CONNIE L. FULTON

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

ROBERT M. BRANNON, JR.          JOHN KNOX WALKUP 
295 Washington, Suite 3         Attorney General & Reporter
Memphis, TN  38103 
                                DEBORAH A. TULLIS 
                                Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                JOHN W. PIEROTTI
                                District Attorney General

                                PERRY HAYES 
                                Asst District Attorney General
                                201 Poplar Street, Suite 301
                                Memphis, TN  38103                            

Judge:WOODALL

First Paragraph:

The Defendant, Connie L. Fulton, appeals as of right the determination
of the Shelby County Criminal Court that the sentences she received
for various convictions should be served by incarceration and not by
alternative sentencing.  The Defendant entered guilty pleas to three
counts of theft, one count of reckless driving, and one count of
driving a motor vehicle while her license was revoked, canceled, or
suspended.  Pursuant to a negotiated plea agreement, the Defendant was
sentenced to two years as a Range I Standard Offender for her
conviction for theft over $500.  This sentence was ordered to be
served concurrently with her two nine-month sentences for theft under
$500, her 90-day sentence for  reckless driving, and her 90-day
sentence for driving while her license was revoked, suspended, or
canceled.  After an evidentiary hearing, the trial court ordered the
sentences to be served totally by incarceration.  In her sole issue on
appeal, the Defendant argues that the trial court erred in denying her
alternative sentencing.  We affirm the judgments of the trial court.

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

RICKY HARRIS
vs.
BILLY COMPTON, WARDEN

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

RICKY HARRIS, PRO SE                JOHN KNOX WALKUP 
#121445, L.C.R.C.F                  Attorney General & Reporter
Route 1, Box 330
Tiptonville, TN  38079-9775         CLINTON J. MORGAN 
                                    Asst Attorney General
                                    2nd Floor, Cordell Hull Building
                                    425 Fifth Avenue North 
                                    Nashville, TN  37243

                                    C. PHILLIP BIVENS 
                                    District Attorney General
                                    P.O. Drawer E 
                                    Dyersburg, TN  38024
                          

Judge:WOODALL

First Paragraph:

Petitioner, Ricky Harris, appeals the trial court's denial of his
petition for  writ of habeas corpus.  The Petitioner was indicted and
pled guilty to a forgery charge.  Subsequently he was convicted of
first degree murder.  Currently, Petitioner is serving a life sentence
on the first degree murder conviction which is consecutive to a
three-year sentence for forgery.  In this appeal, the Petitioner,
relying on State v. Roger Dale Hill, C.C.A. No. 01C01 9508-CC-00267, 
Wayne County (Tenn. Crim. App., Nashville, June 20, 1996), perm. to
app. granted, (Tenn. 1996), contends the judgment entered against him
on the forgery charge is void because the indictment failed to allege
the mens rea of the offense.  We affirm the judgment of the trial
court.

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

STATE OF TENNESSEE
vs.
MELVIN EDWARD HENNING

Court:TCCA

Attorneys:
For the Appellant:              For the Appellee:

C. MICHAEL ROBBINS              JOHN KNOX WALKUP
202 S. Maple, Suite C           Attorney General and Reporter
Covington, TN  38019    

ON APPEAL                       ELIZABETH T. RYAN
                                Assistant Attorney General  
                                GEORGE MORTON GOOGE     
                                Criminal Justice Division
District Public Defender        450 James Robertson Parkway
227 W. Baltimore Street         Nashville, TN 37243 0493        
Jackson, TN  38301      
                        
AT TRIAL                        JAMES G. (JERRY) WOODALL    
                                District Attorney General

                                DONALD H. ALLEN
                                Asst. District Attorney General
                                P. O. Box 2825
                                Jackson, TN  38302
                          

Judge:Hayes

First Paragraph:

The appellant, Melvin Edward Henning, appeals his Madison County jury
convictions for the crimes of attempted first degree murder, attempted
second degree murder, two counts of aggravated assault, and possession
of a deadly weapon during the commission of a felony.   Following the 
sentencing hearing, the trial court sentenced the appellant, as a
range I offender, to twenty-four years for attempted first degree
murder and to eleven years for attempted second degree murder; and, as
a range II offender, to nine years for each aggravated assault
conviction and to three years for the weapons conviction.  The trial
court further ordered that the two attempted homicide convictions run
consecutively to each other but concurrent with all remaining
sentences, for a total effective sentence of thirty-five years in the
Tennessee Department of Correction.

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

STATE OF TENNESSEE
VS.
ERNEST LEON POWERS, JR.

Court:TCCA

Attorneys:
FOR THE APPELLANT:              FOR THE APPELLEE:

LYNN DOUGHERTY                  JOHN KNOX WALKUP
HUDSON & DOUGHERTY              Attorney General & Reporter
131 Eighth Street
P.O. Box 189                    KENNETH W. RUCKER
Bristol, TN  37621              Assistant Attorney General
                                425 Fifth Avenue North 
                                2nd Floor, Cordell Hull Building
                                Nashville, TN  37243

                                H. GREELEY WELLS, JR.
                                District Attorney General

                                PHYLLIS H. MILLER
                                Asst District Attorney General
                            
                                BARRY P. STAUBUS
                                Asst District Attorney General
                                P.O. Box 526 
                                Blountville, TN  37617-0526                          

Judge:WOODALL

First Paragraph:

The Defendant, Ernest Leon Powers, Jr., was convicted of felony
murder, in the perpetration of robbery, and especially aggravated
robbery following a jury trial in the Sullivan County Criminal Court. 
Defendant was sentenced to life imprisonment on the felony murder
conviction, and the trial court sentenced him to twenty (20) years for
the conviction of especially aggravated robbery.  The sentences were
ordered  to be served consecutively.  In this appeal as of right
pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure,
Defendant presents five issues:  (1) The trial court erred by denying
his motion to suppress statements taken from Defendant by law
enforcement officers in violation of his protection against
self-incrimination and his right to counsel; (2) the evidence was
insufficient to sustain the convictions of felony murder and
especially aggravated robbery; (3) the trial court erred by overruling
his objection to the admissibility of a photograph of the victim which
the Defendant argues the probative value was far outweighed by the
prejudicial effect; (4) the trial court erred in denying his motion
for new trial based upon an alternate juror falsely swearing during
voir dire; and (5) the trial court erred by ordering the sentences to
be served consecutively.  Finding the evidence to be sufficient and no
reversible error, we affirm the judgment of the trial court.

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

SHANNON L. SMITH, KEITH VERSIE
AND MICHAEL L. WOFFORD
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

Richard B. Fields                   John Knox Walkup
Attorney at Law                     Attorney General & Reporter
699 Jefferson Avenue                500 Charlotte Avenue
Memphis, TN 38105                   Nashville, TN 37243-0497

George Kendricks                    Michael J. Fahey, II
L. Song Richardson                  Assistant Attorney General
Attorneys at Law                    450 James Robertson Parkway
99 Hudson Street, Suite 1601        Nashville, TN 37243-0493
New York, NY 10013              
                                    William L. Gibbons
Steven W. Hawkins                   District Attorney General
Attorney at Law                     201 Poplar Avenue, Suite 3-01
918 F Street, N.W., Suite 601       Memphis, TN 38103
Washington, DC 20004
                                    John W. Campbell
                                    Asst District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103
                          

Judge: Jones

First Paragraph:

The issue this Court must resolve in this extraordinary appeal is
whether the trial court abused its discretion by disqualifying counsel
in this post conviction proceeding based upon a conflict of interest
amongst the petitioners.  After a thorough review of the record, the
briefs of the parties, and the law governing the issue presented for
review, it is the opinion of this Court the judgment of the trial
court should be reversed and this action remanded to the trial court
for further proceedings consistent with this opinion.

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

FREDERICK NATHAN VANN
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:
For the Appellant:                  For the Appellee:

Robert W. Ritchie                   Charles W. Burson
606 W. Main Street                  Attorney General of Tennessee
Suite 300                           and
P.O. Box 1126                       Michael J. Fahey, II
Knoxville, TN 37901-1126            Asst Attorney General of Tennessee                  
									450 James Robertson Parkway     
                                    Nashville, TN 37243-0493

                                    Charles E. Hawk
                                    District Attorney General
                                    and
                                    D. Roger Delp
                                    Frank A. Harvey
                                    Asst District Attorneys General
                                    P.O. Box 703
                                    Kingston, TN 37763
                                                  

Judge: Tipton

First Paragraph:

The petitioner Frederick Nathan Vann, appeals as of right from the
Morgan County Criminal Court's denial of his petition for
post-conviction relief.  The petition alleges that this court erred in
the petitioner's direct appeal by affirming the denial of his motion
to suppress and that the trial court's instruction on premeditation
and deliberation violated his due process rights.  The trial court
dismissed the petition, concluding that the suppression issue had been
previously determined and that the petitioner's constitutional rights
were not violated by the jury instructions given at his trial.  The
petitioner now contends that the suppression issue was not previously
determined because he was not accorded a full and fair hearing on the
issue in the direct appeal.  He also contends that the jury
instructions violated his constitutional rights.  We affirm the trial
court's dismissal of the petition.

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

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