TBALink Opinion-Flash

October 5, 1998 -- Volume #4 -- Number #142

What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.

This Issue (IN THIS ORDER):
00-New Opinons From TSC
01-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
05-New Opinons From TCA
03-New Opinons From TCCA

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Lucian T. Pera
Editor-in-Chief, TBALink



OPINION NO. 98-4

Court:TSC - Rules                        

Judge:Peete

First Paragraph:

We have been asked to render an ethics opinion regarding the Code of
Judicial Ethics, specifically, whether a judge or judicial candidate
can respond to probative questionnaires submitted to the judge or
candidate by special advocacy groups which ask the judge or judicial
candidate the manner in which the candidate would rule in specific
cases, controversies or issues likely to come before the court,
pending endorsement by such group.

URL:http://www.tba.org/tba_files/TSC-RULES/98-4_OPN.WP6
Opinion-Flash

LINDA ADKINS
VS.
RICK KECK and TORBETT AUTO SUPPLY

Court:TCA

Attorneys:  

R. Jackson Rose, Harrogate, for the Appellant.

James D. Estep, III, Tazewell, for the Appellee, Rick Keck.

David L. Hill, Knoxville, for the Appellee, Torbett Auto Supply, Inc.
                        

Judge:INMAN

First Paragraph:

The plaintiff suffered an alleged whiplash injury on March 17, 1994
when her vehicle was struck from behind by the vehicle operated by the
defendant Keck, who was on the business of his co-defendant.  The jury
returned a verdict for the plaintiff for $9,340.00 and apportioned 15
percent of the fault to her, apparently accepting the defendant Keck's
testimony that the brake lights on the plaintiff's car were
inoperable.

URL:http://www.tba.org/tba_files/TCA/adkins_ca3.WP6
Opinion-Flash

JEREMY P. CRYE, a Minor, by
his next friend and Mother
BEVERLY A. ROGERS, and
BEVERLY A. ROGERS, Individually
VS.
LLOYD C. NORTON and MARY B. NORTON

Court:TCA

Attorneys:   

Herbert S. Moncier and David S. Wigler, Knoxville, for Appellants.

Paul D. Hogan, Knoxville, for Apellee Mary P. Norton.
                       

Judge:INMAN

First Paragraph:

The plaintiff, Jeremy P. Crye, seeks to impose liability on Mary B.
Morton for the act of her son, Lloyd C. Norton, in shooting him.  The
trial judge granted her motion for summary judgment without
enlargement.  The plaintiff appeals, and presents for review the issue
of whether the proof relevant to the motion established a genuine
dispute of a material fact, thus requiring a merit trial.

URL:http://www.tba.org/tba_files/TCA/crye_ca3.WP6
Opinion-Flash

IN THE MATTER OF:
The adoption of DAMON ALAN KRATOCHVIL
        A Minor

by

JAMES L. COONE and SONJA COONE
VS.
DANNY ALAN KRATOCHVIL

Court:TCA

Attorneys:    

BRUCE H. GUTHRIE, II, Chattanooga, for Appellant.
GLENNA M. RAMER, Chattanooga, for Appellees.

Judge:McMurray

First Paragraph:

In this adoption case, Danny Alan Kratochvil (respondent) appeals the
trial court's order terminating his parental rights regarding his son,
Damon Alan Kratochvil.  The biological mother's parental rights were
terminated by default judgment, and she is not a party to this appeal.
We affirm the judgment of the trial court.

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

KAREN LYNN PILCHER and HUSBAND KEITH A. PILCHER
VS.
A. L. MONEYMAKER, JR., and wife ROBERTA MONEYMAKER

Court:TCA

Attorneys:   

MICHAEL W. RITTER OF OAK RIDGE FOR APPELLANTS

HAROLD P. COUSINS, JR., and GEORGE H. BUXTON, III, OF OAK RIDGE
FOR APPELLEES                       

Judge:GODDARD

First Paragraph:

A. L. Moneymaker, Jr., and his wife Roberta Moneymaker appeal a
judgment rendered by the Trial Court against them in the amount of
$36,000 as a result of personal injuries sustained by  Karen Lynn
Pilcher and loss of consortium of her husband, Keith A. Pilcher.  The
suit arose as a result of a collision occurring on September 3, 1994,
about 10:00 a.m., between a female dog named Spec, alleged to be owned
by Mr. and Mrs. Moneymaker, and a bicycle being ridden by Mrs. Pilcher
on Dutch Valley Road in Anderson County.

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

LARRY G. RELFORD
VS. 
WILLIAM DeROCHIE and STEVE LaFON

Court:TCA

Attorneys:

SAM G. SMITH, JR., OF KNOXVILLE FOR APPELLANT
ROBERT A. CRAWFORD OF KNOXVILLE FOR APPELLEE STEVE LaFON

Judge:GODDARD

First Paragraph:

Larry G. Relford, an employee of William DeRochie, sued Mr. DeRochie
and Steve LaFon, seeking damages for injuries received by him when he
fell from a scaffold while framing a personal residence being erected
for Mr. LaFon under a contract with Mr. DeRochie, the general
contractor.  As best we understand the complaint, it is grounded upon
two theories--first, that Mr. LaFon failed to provide a safe place for
Mr. Relford to work and, second, that Mr. LaFon was, as contemplated
by T.C.A. 50-6-111, a statutory employer and subject to the provisions
of the Tennessee Workers' Compensation Statute.

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

STATE OF TENNESSEE
VS.
KENNETH W. ERVIN

WITH DISSENT

Court:TCCA

Attorneys:  

FOR THE APPELLANT:          FOR THE APPELLEE:


MACK GARNER                 JOHN KNOX WALKUP
District Public Defender    Attorney General & Reporter
419 High St.
Maryville, TN 37804         JANIS L. TURNER
                            Asst. Attorney General
                            John Sevier Bldg.
                            425 Fifth Ave., North
                            Nashville, TN  37243-0493
                
                            MIKE FLYNN
                            District Attorney General

                            EDWARD P. BAILEY, JR.
                            Asst. District Attorney General
                            363 Court St.
                            Maryville, TN 37804                       

Judge:HAYES

First Paragraph:

The appellant, Kenneth W. Ervin, appeals the sentences imposed by the
Blount County Circuit Court following revocation of his Community
Corrections sentences.  The appellant's placement in the Community
Corrections program stemmed from his guilty pleas to three class C
felonies.  This appeal is before this court from a previous remand of
the sentencing hearing following revocation.  Upon remand, the trial
court increased the term imposed for each of the multiple sentences by
one year and modified the previously ordered concurrent sentences to
reflect that they be served consecutively.  In this appeal, the
appellant contends (1) that the trial court erred in increasing his
sentences by one year; (2) that the trial court erred in ordering his
sentences to run consecutively; and (3) that, because the plea
agreement violated mandatory consecutive sentencing requirements, he
should have been allowed to withdraw his guilty pleas.

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

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

STATE OF TENNESSEE
VS.
CECIL EUGENE McGUIRE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:          FOR THE APPELLEE:

DENNIS CAMPBELL             JOHN KNOX WALKUP
Assistant Public Defender   Attorney General & Reporter
140 A Court Ave.
Sevierville, TN 37862       MICHAEL J. FAHEY    
                            Assistant Attorney General  
                            Criminal Justice Division
                            425 Fifth Ave. North
                            2d Floor, Cordell Hull Bldg.
                            Nashville, TN 37243-0493    

                            ALFRED C. SCHMUTZER, JR.
                            District Attorney General
                
                            STEVEN R. HAWKINS
                            Assistant District Attorney General
                            125 Court Ave., Suite 301
                            Sevierville, TN 37862                        

Judge:WITT

First Paragraph:

The Sevier County Grand Jury indicted  sixteen-year old Cecil Eugene
McGuire for aggravated rape, aggravated sexual battery, and aggravated
burglary.  After a trial, the jury acquitted the defendant of
aggravated rape and aggravated burglary but found him guilty of
aggravated sexual battery and aggravated criminal trespass, a lesser
grade offense of aggravated burglary.  The trial court sentenced him
to serve eleven years in the custody of the Department of Correction
as a Range I, standard offender for the Class B felony, concurrently
with eleven months and twenty-nine days for the Class A misdemeanor.

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

STATE OF TENNESSEE
VS.
STEVEN TOLBERT

Court:TCCA

Attorneys:           

FOR THE APPELLANT:              FOR THE APPELLEE:

A. CHRISTIAN LANIER, III        JOHN KNOX WALKUP
615 Lindsay Street, Suite 150   Attorney General & Reporter
Chattanooga, TN 37402
            
                                ELLEN H. POLLACK
                                Assistant Attorney General
                                425 Fifth Avenue North
                                Nashville, TN 37243-0493

                                WILLIAM H. COX, III
                                District Attorney General
        
                                THOMAS J. EVANS
                                Assistant District Attorney General
                                600 Market Street - Courts Bldg.
                                Chattanooga, TN 37402               

Judge:

First Paragraph:

The defendant was indicted for first-degree premeditated murder and
was convicted of that offense by a jury.  He was subsequently
sentenced to life imprisonment.  He now appeals as of right from his
conviction and raises the following issues for review: (1) sufficiency
of the evidence;
(2) exclusion of certain testimony concerning the victim's alleged
propensity for violence;
(3) admission of the E-911 audio tape;
(4) allowing the State to question him regarding his prior
incarceration;
(5) use of improper jury instructions;
(6) failure to sequester the jury;
(7) ineffective assistance of counsel; and
(8) exclusion of evidence that the victim had used marijuana.
Upon our review of the record, we affirm the conviction.

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


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