TBALink Opinion-Flash

March 23, 1998 -- Volume #4 -- Number #053

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

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George Dean
TBALink Chief Editor


WAYNE LEE AND       
C. EDDIE SHOFFNER
vs.
ROBERT TUTTLE, JAMES K. LOOPE,  
ELEANOR Y. BREEDING,    
STEWART COLLINGSWORTH, and  
BETTY MANNING
and
BILLY RAY CHEEK and 
BRUCE SEAL

Court:TSC

Attorneys:

FOR DEFENDANTS/APPELLANTS:

A. Benjamin Strand, Jr.
Dandridge

FOR APPELLEE LEE:               FOR APPELLEE SHOFFNER:

Michael G. Hatmaker             Mark C. Travis
Jacksboro                       Morristown
                          
Judge:HOLDER

First Paragraph:

This is an election contest alleging irregularities or mistakes in
vote counting in the 1994 election for Claiborne County Sheriff and
Circuit Court Clerk.  The issue with which we are confronted is
whether votes shall be recounted when contestants allege that
irregularities in vote tallying caused their defeat.  The Court of
Appeals ordered a recount pursuant to Blackwood v. Hollingsworth, 195
Tenn. 427, 260 S.W.2d 164 (1953).  Upon review, we reverse.  We
distinguish the present case from Blackwood on the basis that
Blackwood dealt with fraud and not mere irregularities or honest
mistakes.  We hold that the plaintiffs are not entitled to relief as
they have neither shown fraud nor to a mathematical certainty that but
for the irregularities they would have been victorious.

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

SHEILA FAYE HAGEN MCCALL BARNETT
vs.
RONALD EDWARD BARNETT, SR.

Court:TCA

Attorneys: 

Jack Norman, Jr. of Nashville
Thomas F. Bloom of Nashville
For Appellee

Clark Lee Shaw of Nashville
Larry Houston Hagar of Nashville
For Appellant
                         
Judge:CRAWFORD

First Paragraph:

Plaintiff, Sheila Faye Hagen McCall Barnett (Wife), and defendant,
Ronald Edward Barnett, Sr. (Husband), were divorced by decree entered
January 9, 1997.  Husband appeals and presents issues concerning
property division, alimony, and attorney's fees.

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

CUSTOM BUILT HOMES
vs.
G. S. HINSEN COMPANY, INC.

Court:TCA

Attorneys:

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

Robert H. Plummer, Jr.              Phillip B. Jones
Franklin, Tennessee                 EVANS, JONES & REYNOLDS
                                    Nashville, Tennessee
                                                              
Judge:KOCH

First Paragraph:

This appeal arises out of a dispute over the workmanship of
residential renovations.  The interior designer hired by the owner to
undertake the renovations withheld final payment to the contractor who
performed the work because the owner was dissatisfied with the
renovations.  After the contractor obtained a judgment against the
interior designer in the Williamson County General Sessions Court, the
interior designer perfected an appeal to the Circuit Court for
Williamson County and filed a counterclaim against the contractor. 
Following a bench trial, the trial court dismissed the interior
designer's claims against the contractor and entered a judgment
against the interior designer for the remaining balance of the
construction contract.  The interior designer has appealed.  While the
trial court erroneously concluded that the Contractor's Licensing Act
of 1976 prevented the interior designer from pursuing its claims
against the contractor, we have concluded that the trial court reached
the proper result.  Accordingly, we affirm the judgment.

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

JOHN JAY HOOKER
vs.
SEN. FRED D. THOMPSON
and
JOHN JAY HOOKER
vs.
DON SUNDQUIST, ET AL.

Court:TCA

Judge:TODD

First Paragraph:

The appellant has filed a respectful petition to rehear, which we have
considered and found to be without merit.

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

STATE OF TENNESSEE,         
DEPT. OF CHILDREN'S SERVICES
vs.
WINIFRED LYNN MOSS

Court:TCA

Attorneys:

J. MICHAEL O'NEIL
Nashville, Tennessee
Attorney for Appellant

JOHN KNOX WALKUP
Attorney General & Reporter
DOUGLASS EARL DIMOND
Assistant Attorney General
Nashville, Tennessee
Attorneys for Appellee
                          
Judge:HIGHERS

First Paragraph:

Defendant/Appellant, Winifred Moss ("Moss"), appeals the judgment of
the trial court terminating his parental rights and in failing to
award custody of his children to a family member instead of foster
parents.  Moss contends that because the termination proceeding was
performed without his presence, it was in violation of his due process
rights.  We disagree and affirm the judgment of the trial court.

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

STATE OF TENNESSEE, DEPARTMENT  
OF CHILDREN'S SERVICES
vs.
AMY DIANE BOTTOMS and BRIAN             
BOTTOMS, SR.

IN THE MATTER OF:               
BRIAN SCOTT BOTTOMS, JR.            
ISRAEL VAUGHN BOTTOMS           
ELIJAH KEANE BOTTOMS

Court:TCA

Attorneys:

JOHN KNOX WALKUP
Attorney General and Reporter

DOUGLAS EARL DIMOND, BPR No. 17953
Assistant Attorney General
425 Fifth Avenue, South
Cordell Hull Building, 2nd Floor
Nashville, TN 37243-0499
ATTORNEY FOR PETITIONER/APPELLEE

LESLIE BARRETT KINKEAD, BPR No. 13299   
P.O. Box 270683
Nashville, TN 37227-0683
ATTORNEY FOR RESPONDENT/APPELLANT, AMY DIANE BOTTOMS

J. MICHAEL O'NEAL, BPR No. 014654
P.O. BOX 60125
Nashville, TN 37206
ATTORNEY FOR RESPONDENT/APPELLANT, BRIAN SCOTT BOTTOMS, SR.                          

Judge:TODD

First Paragraph:

Brian Bottoms, Sr., and Amy Bottoms have appealed from the judgment of
the Juvenile Court, terminating their parental rights in respect to
Brian Scott Bottoms, aged 7, Israel Vaughn Bottoms, aged 5, and Elijah
Keane Bottoms, aged 2, and placing them in the legal guardianship of
AGAPE with the right to place them for adoption.

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

JIMMY WAYNE WILSON

JAMES T. FITE, VIVIEN TROY COOK,    
DEWEY SCOTT FRAZIER, JERRY L.   
CHILTON, PAUL CARRIER, ET AL.
vs.
STATE OF TENNESSEE, GOVERNOR    
NED RAY McWHERTER, PAROLE   
ELIGIBILITY REVIEW BOARD &  
MEMBERS, JIM THRASHER,      
JOHN S. WILDER, JIMMY NAIFEH,       
AND CHARLES BURSON, ET AL.

Court:TCA
                       
Judge:TODD

First Paragraph:

Jimmy Wayne Wilson has filed a pro se request for a rehearing,
claiming that this court's opinion of January 16, 1998 is in conflict
with well established principles of law.  While Rule 39 of the Rules
of Appellate Procedure provides that an appeals court may grant a
rehearing in situations where "the court's opinion is in conflict with
a statute, prior decision, or other principle of law," Mr. Wilson has
not stated any principle of law nor cited any statute that would
require us to find that he is entitled to the relief he seeks.

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

JENNIFER O. WILSON
vs.
LARRY ARNOLD WILSON

Court:TCA

Attorneys:

JOHN E. HERBISON, Nashville, Attorney for Plaintiff.

EARL J. PORTER, JR., Nashville, Attorney for Defendant.
                          
Judge:TOMLIN

First Paragraph:

Jennifer O. Wilson ("plaintiff") filed suit for divorce against Larry
A. Wilson ("defendant") in the Circuit Court of Davidson County. 
During the course of this litigation, certain restraining orders were
issued by the court.  Thereafter, defendant filed a petition against
plaintiff for contempt.  The petition failed to specify whether  civil
or criminal sanctions were being sought.  Plaintiff filed a
counterclaim for contempt against defendant.

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

RANDALL KEITH ATTAWAY
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

RANDALL KEITH ATTAWAY,          JOHN KNOX WALKUP
PRO SE                          Attorney General & Reporter
M.C.R.C.F. P.O. Box 2000        
Wartburg, TN 37887-2000         TIMOTHY F. BEHAN
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493    

                                CHARLES HAWK
                                District Attorney General
                
                                FRANK HARVEY
                                Asst District Attorney General                      
                                P.O. Box 703
                                Kingston, TN 37763
                          
Judge:WITT

First Paragraph:

Randall Keith Attaway, the petitioner, appeals pursuant to Rule 3,
Tennessee Rules of Appellate Procedure, from the trial court's
dismissal of his petition for writ of habeas corpus.  In May, 1994,
the petitioner pled guilty to theft of property worth more than
$10,000 but less than $60,000, felony jail escape, and several counts
of possession with the intent to sell various controlled substances. 
He received Range III sentences of fifteen years on the theft charge,
six years for escape, fifteen years for one possession count and eight
years for each of the others.  In his petition, Attaway challenges
only his conviction for felony escape.  Although the petitioner
contends that the trial judge erred by dismissing his petition without
appointing counsel or holding an evidentiary hearing, his major
contention is that his conviction for felony escape is void because
the indictment failed to the allege the mens rea for that offense.

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

WESLEY BARNES
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:              For the Appellee:

Ardena J. Garth                 John Knox Walkup
District Public Defender        Attorney General of Tennessee
     and                        and             
Richard Heinsman and            Michael J. Fahey, II
Donna Robinson Miller           Assistant Attorney General of TN           
Assistant Public Defenders      450 James Robertson Parkway     
701 Cherry Street               Nashville, TN 37243-0493
Chattanooga, TN 37402
 (AT TRIAL)                     William H. Cox
                                District Attorney General
Ardena J. Garth                 and
District Public Defender        Leland Davis
     and                        Asst District Attorney General
Donna Robinson Miller           600 Market Street
Assistant Public Defender       Courts Building
Suite 300                       Chattanooga, TN 37402
701 Cherry Street
Chattanooga, TN 37402
(ON APPEAL)                         

Judge:Tipton

First Paragraph:

The petitioner, Wesley Barnes, appeals as of right from the denial of
his petition for post-conviction relief by the Hamilton County
Criminal Court.  He seeks relief from his conviction upon a guilty
plea for attempt to commit aggravated arson resulting in an eight-year
sentence.  He claims that the trial court incorrectly found that he
received the effective assistance of counsel.  Particularly, the
petitioner asserts that his trial attorney failed to investigate the
case, intervened into negotiations without retained counsel's
permission, pressured him into pleading guilty, and misadvised him
that he was facing a life sentence on the original aggravated arson
charge.  We affirm the trial court.

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

STATE OF TENNESSEE
vs.
MICHAEL K. CHRISTIAN, JR

Court:TCCA

Attorneys: 

For Appellant:                  For Appellee:
Gale Flanary                    Charles W. Burson
Assistant Public Defender       Attorney General & Reporter
P.O. Box 839
Blountville, TN  37617          Timothy F. Behan
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN  37243-0493       
                        
                                Joseph Eugene Perrin
                                Asst District Attorney General
                                P.O. Box 526
                                Blountville, TN  37617
                                         
Judge:WADE

First Paragraph:

The defendant, Michael K. Christian, Jr., was convicted of attempted
first-degree murder, attempted aggravated kidnapping, two counts of
burglary, theft over $500, and theft under $500.  The trial court
imposed an effective sentence of twenty-five years.

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

STATE OF TENNESSEE
vs.
JAMES DALE GRINDSTAFF

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:
STEVE McEWEN                        JOHN KNOX WALKUP
Asst. District Public Defender      Attorney General & Reporter
142 E. Market St.
Johnson City, TN  37601             CLINTON J. MORGAN
                                    Assistant Attorney General                          
                                    450 James Robertson Parkway                         
                                    Nashville, TN 37243-0493

                                    DAVID E. CROCKETT
                                    Dist. Attorney General
                                    
                                    MICHAEL LaGUARDIA
                                    Asst. Dist. Attorney General
                                    P.O. Box 38
                                    Jonesborough, TN  37659
                          
Judge:WITT

First Paragraph:

The defendant, James Dale Grindstaff, stands convicted of DUI
following trial before a jury of his peers in the Washington County
Criminal Court.  He asks this court to reverse his conviction based
upon the admission of (1) evidence about the horizontal gaze nystagmus
test and the results of his performance of that test without proper
scientific foundation, and (2) breathalyser test results where the
state conceded the arresting officer had not continuously observed the
defendant for 20 minutes prior to administration of the test.  For the
reasons that follow, we agree with the defendant and reverse his
conviction and remand for a new trial.

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

STATE OF TENNESSEE
vs.
DAVID GLEN HAYNES

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

Stephen M. Wallace              Charles W. Burson
District Public Defender        Attorney General of Tennessee
     and                        and             
Gale K. Flanary                 Janis L. Turner
Asst Dist. Public Defender      Counsel for the State                   
P.O. Box 839                    450 James Robertson Parkway     
Blountville, TN 37617           Nashville, TN 37243-0493

                                H. Greeley Wells, Jr.
                                District Attorney General
                                and
                                Phyllis H. Miller
                                Asst District Attorney General
                                P.O. Box 526
                                Blountville, TN 37617
                          
Judge:Tipton

First Paragraph:

The defendant, David Glen Haynes, appeals as of right from an order of
the Sullivan County Criminal Court reversing its earlier grant of
intensive probation.  On July 13, 1995, the defendant was convicted of
aggravated burglary and aggravated assault, Class C felonies, in the
Sullivan County Criminal Court upon his entry of guilty pleas.  The
defendant was sentenced as a Range I, standard offender to concurrent
sentences of five years.  The trial court ordered that the defendant
serve his sentences consecutively to the sentences imposed in an
unrelated case.  The trial court initially granted intensive
probation, but it reconsidered and reversed its decision after
granting the state's petition for a rehearing based upon the
defendant's commission of an assault upon his girlfriend that was not
revealed at the sentencing hearing.  The defendant contends that the
trial court erroneously granted the state's petition to rehear and
erroneously denied probation.  We affirm the judgment of the trial
court.

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

TERRY T. LAMM
vs.             
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

KEVIN SHEPHERD              JOHN KNOX WALKUP
404 Ellis Ave.              Attorney General & Reporter
Maryville, TN 37804         
                            MICHAEL J. FAHEY, II
                            Assistant Attorney General
                            Criminal Justice Division
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493    

                            MICHAEL L. FLYNN
                            District Attorney General
                
                            PHILIP MORTON
                            Asst District Attorney General
                            363 Court St.
                            Maryville, TN 37804
                          
Judge:WITT

First Paragraph:

The petitioner, Terry T. Lamm, appeals pursuant to Rule 3 of the
Tennessee Rules of Appellate Procedure from the Blount County Circuit
Court's denial of post-conviction relief.  In 1994, a jury found the
petitioner guilty of leaving the scene of an accident, and the trial
judge sentenced him to eleven months and twenty-nine days with sixteen
days to be served on weekends or work release and the balance on
probation.  State v. Terry T. Lamm, No. 03C01-9401-CR-0030, slip op.
at 2 (Tenn. Crim. App., Knoxville, October 6, 1995).  Lamm was free on
bond while his conviction was on appeal.  When this court found that
the evidence was legally sufficient to sustain his conviction and
affirmed the trial court's denial of full probation, he fled the
jurisdiction.  The capias was never served.

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

THOMAS CALVIN MANEY, JR.
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

THOMAS CALVIN MANEY, JR.        JOHN KNOX WALKUP
N.E.C.C. #216056, Pro se        Attorney General & Reporter
P.O. Box 5000
Mountain City, TN  37683        SANDY COPOUS PATRICK
                                Assistant Attorney General
                                2d Floor Cordell Hull Building
                                425 Fifth Ave. North
                                Nashville, TN  37243-0943

                                JERRY N. ESTES
                                District Attorney General
                                130 Washington Ave.
                                P.O. Box 647
                                Athens, TN  37371-0647                          

Judge:WITT

First Paragraph:

Thomas Calvin Maney, the petitioner, appeals the Bradley County
Criminal Court's dismissal of his post-conviction petition on February
29, 1996.   From the scant record before us we learn that the
petitioner pleaded guilty on March 11, 1994 and was sentenced to serve
eleven months and twenty-nine days.    The petitioner filed a petition
for post-conviction relief on July 7, 1994 alleging ineffective
assistance of counsel, prosecutorial misconduct, and falsification of
official documents.   The trial court dismissed the petition by a
written order dated February 29, 1996 because the petitioner failed to
appear at a hearing scheduled two days earlier.  The order was not
filed until June 3, 1996.  According to a letter in the record, the
petitioner filed a motion to reconsider the dismissal on February 3,
1997.  The record contains no copy of the motion.  He filed a notice
of appeal on March 24, 1997.

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

STATE OF TENNESSEE
vs.
ROBERT H. McCURDY

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

CHARLIE ALLEN               JOHN KNOX WALKUP
P.O. Box 5027               Attorney General and Reporter
Oneida, TN 37841
                            TIMOTHY F. BEHAN
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN 37243
    
                            WILLIAM PAUL PHILLIPS
                            District Attorney General

                            E. SHAYNE SEXTON
                            Assistant District Attorney General
                            P.O. Box 323
                            Jacksboro, TN 37757                          

Judge:WELLES

First Paragraph:

The Defendant, Robert H. McCurdy, appeals as of right pursuant to Rule
3 of the Tennessee Rules of Appellate Procedure.  He was convicted by
a Union County jury of two counts of aggravated sexual battery and two
counts of contributing to the delinquency of a minor.   He was
sentenced as a standard, Range I offender to consecutive sentences of
eight years for each count of aggravated sexual battery.  The
sentences for contributing to the delinquency of a minor were ordered
to run concurrently with the aggravated sexual battery sentences.  The
Defendant raises three issues in this appeal: (1) That the trial court
erred by failing to properly charge the jury regarding possible
sentences or to charge the jury that the Defendant would be required
to serve one hundred percent of his sentences for aggravated sexual
battery; (2) that the trial court erred by ruling that Tennessee Code
Annotated section 40 35-201 is unconstitutional; and (3) that the
trial court erred by ordering the aggravated sexual battery sentences
to be served consecutively.  We affirm the Defendant's convictions. 
We reverse the trial court's finding that the sentences should be
served consecutively and remand for the entry of an order consistent
with this opinion.

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

STATE OF TENNESSEE
vs.
HAROLD LEON SUTTON, JR.

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:
EDWARD C. MILLER (appeal)       JOHN KNOX WALKUP
District Public Defender        Attorney General & Reporter
P.O. Box 416
Dandridge, TN  37725            SANDY C. PATRICK
                                Assistant Attorney General 
ALAN FELTES (trial)             450 James Robertson Pkwy.
Attorney at Law                 Nashville, TN 37243-0493
159 W. Main St.
Sevierville, TN                 ALFRED C. SCHMUTZER, JR.
                                Dist. Attorney General
                                   
                                STEVEN R. HAWKINS
                                Asst. Dist. Attorney General
                                Sevier County Courthouse
                                Sevierville, TN
                          
Judge:WITT

First Paragraph:

The defendant, Harold Leon Sutton, Jr., appeals from his conviction of
the crime of aggravated sexual battery.  Sutton was found guilty by a
jury of his peers in the Sevier County Criminal Court.  He is
presently serving a nine year sentence in the Department of
Correction.

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

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