TBALink Opinion-Flash

December 16, 1998 -- Volume 4 -- Number 180

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 Opinion(s) from the Tennessee Supreme Court
00-New Opinion(s) from the Tennessee Supreme Court Workers Comp Panel
00-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
05-New Opinion(s) from the Tennessee Court of Appeals
10-New Opinion(s) from the Tennessee Court of Criminal Appeals
00-New Judicial Ethics Opinion(s)
00-New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Editor-in-Chief, TBALink



J. C. BRADFORD & COMPANY,
a Tennessee Limited Liability Company
VS.
SOUTHERN REALTY PARTNERS,
a Tennessee General Partnership, 
and WESTON MANAGEMENT 
COMPANY, A Delaware Corporation

Court:TCA

Attorneys:  

Carl H. Langschmidt, Jr.; Bobby M. Leatherman; Parke S. Morris;
Armstrong Allen Prewitt Gentry Johnston & Holmes, PLLC, of Memphis
For Appellant

J. Alan Hanover; James R. Newsom III;
Hanover, Walsh, Jalenak & Blair, PLLC, of Memphis
For Appellee, Southern Realty Partners

Martin W. Brown of Memphis
For Appellee, Weston Management Company                        

Judge:CRAWFORD

First Paragraph:

This is a case involving allegations of fraudulent and negligent
misrepresentation and violation of the Tennessee Consumer Protection
Act.  Plaintiff, J.C. Bradford & Co. (Bradford), appeals from the
trial court's decree dismissing its complaint and awarding judgment on
the counterclaims of defendants, Southern Realty Partners (Southern)
and Weston Management Company (Weston).

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

BRAXTON D. DIXON
VS.
STEVE BRYAN

Court:TCA

Attorneys:  

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

C. Tracey Parks                     William Kennerly Burger
Gallatin, Tennessee                 Murfreesboro, Tennessee       
                                                            

Judge:LILLARD

First Paragraph:

This is an action brought under the Tennessee Consumer Protection Act.
 The suit arose out of a contract to sell an antebellum log home to be
dismantled and moved.  The trial court found that the defendant
knowingly engaged in a deceptive trade practice, and awarded the
plaintiff treble damages and attorney's fees.  We affirm.

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

HOME BUILDERS ASSOCIATION OF MIDDLE TENNESSEE
VS.
MAURY COUNTY, TENNESSEE,

CHARLES W. BURSON, State of Tennessee Attorney General

Court:TCA

Attorneys:  

For the Plaintiff/Appellee,         For the Defendant/Appellant:
Home Builders Association of
Middle Tennessee:

L. Bruce Peden                      John Knox Walkup   
Columbia, Tennessee                 Charles L. Lewis  
                                    Forrest B. Bigham
                                    Nashville, Tennessee                        
        
Judge:LILLARD

First Paragraph:

This case is a challenge to the constitutionality of a county tax. 
After authorizing the tax, the county adopted a resolution that the
tax would not be imposed, and no such taxes have been collected.  The
trial court denied the State's motion to dismiss.  We reverse, finding
that there is no justiciable controversy.

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

ROGERS McKINLEY
VS.
CHARLES TRAUGHBER and ROBERT BYRD

Court:TCA

Attorneys: 

ROGER McKINLEY, Pro Se
Route 4 Box 600
Pikeville, Tennessee  37367


JOHN KNOX WALKUP
Attorney General and Reporter

MICHAEL MOORE
Solicitor General

PAMELA S. LORCH
Assistant Attorney General
Civil Rights and Claims Division
Second Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, Tennessee  37243-0488
    ATTORNEYS FOR CHARLES TRAUGHBER
                         

Judge:CAIN

First Paragraph:

This appeal involves a state prisoner's challenge to the decision of
the Tennessee Board of Paroles denying him parole.  The petitioner
filed a pro se petition for a writ of certiorari in the chancery court
seeking review of the Board's decision.  The trial court granted the
respondent's motion to dismiss pursuant to Rule 12.02(6) of the
Tennessee Rules of Civil Procedure.  We affirm.

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

DAVID PALMER
VS.
TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

Attorneys:   

DAVID PALMER, Pro Se
#116977 NECX  POB  5000
Mountain City, Tennessee  37683


JOHN KNOX WALKUP
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

SOHNIA W. HONG
Assistant Attorney General
Civil Rights and Claims Division
Second Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, Tennessee  37243
    ATTORNEYS FOR DEFENDANT/APPELLEE                       

Judge:CAIN

First Paragraph:

This appeal involves a state prisoner's efforts to obtain judicial
review of a decision of the Tennessee Department of Correction.  After
the Department denied the prisoner the relief that he sought in his
Petition for Declaratory Order, the prisoner filed a pro se "Petition
for Judicial Review and/or Petition for a Declaratory Judgment and/or
Petition for Common-law Writ of Certiorari" in the Chancery Court of
Davidson County.  The trial court granted the Department's motion to
dismiss pursuant to Rule 12.02(6) of Civil Procedure.  We affirm the
dismissal of the prisoner's petition because it fails to state a claim
upon which relief can be granted.

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

STATE OF TENNESSEE
VS.
DARRYL J. BAILEY

Court:TCCA

Attorneys: 


FOR THE APPELLANT:          FOR THE APPELLEE:

MARVIN E. BALLIN            JOHN KNOX WALKUP
MARK E. MESLER              Attorney General and Reporter
200 Jefferson Ave,Ste 1250
Memphis, TN  38103          SARAH M. BRANCH
                            Assistant Attorney General
                            425 Fifth Avenue
                            Nashville, TN  37243
    
                            WILLIAM L. GIBBONS
                            District Attorney General

                            THOMAS D. HENDERSON
                            Assistant District Attorney
                            201 Poplar Avenue
                            Memphis, TN  38103                         

Judge:SMITH

First Paragraph:

On September 23, 1994, a Shelby County jury convicted Appellant Darryl
J. Bailey of murder committed during the perpetration of a robbery and
sentenced him to life imprisonment.  Appellant challenges his
conviction, raising the following issues: 1) whether the evidence was
sufficient to support his conviction; and 2) whether the trial court
erred when it ruled that a statement of a co-defendant could not be
introduced into evidence.

After a review of the record, we reverse the judgment of the trial
court and remand for a new trial.

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

STATE OF TENNESSEE
VS.
WILLIAM DORRIS BUCY, II

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

MATTHEW M. MADDOX           JOHN KNOX WALKUP
MADDOX, MADDOX, & MADDOX    Attorney General & Reporter
P. O. Box 430
Huntingdon, TN 38344        MARVIN E. CLEMENTS  
                            Assistant Attorney General
                            Criminal Justice Division
                            425 Fifth Ave. North
                            2d Floor, Cordell Hull Bldg.
                            Nashville, TN 37243-0493    

                            ROBERT "GUS" RADFORD
                            District Attorney General
                            P. O. Box 686
                            Huntingdon, TN 38344
                    
                            TODD ROSE
                            Assistant District Attorney General
                            P.O. Box 94
                            Paris, TN 38242                         

Judge:WITT

First Paragraph:

A jury in the Henry County Circuit Court convicted the defendant,
William Dorris Bucy, II, of possession of more than one-half ounce of
marijuana with the intent to manufacture, deliver, or sell, and
possession of drug paraphernalia.  The trial court sentenced the
defendant to one year for possession of marijuana, a class E felony,
and to a concurrent sentence of eleven months and twenty-nine days for
possession of drug paraphernalia, a class A misdemeanor.  The trial
court ordered the defendant to serve six months of his sentence in the
county jail and the balance on intensive probation.  In addition, the
trial judge imposed fines of $5,000 and $750.  In this appeal, the
defendant contends that the trial court erred in denying his motion to
suppress the materials obtained through the use of invalid search
warrants and that the trial court abused its discretion in admitting
various irrelevant but prejudicial items into evidence. We affirm the
defendant's convictions.

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

DAVID CLIFF
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:          FOR THE APPELLEE:

WILLIAM K. RANDOLPH         JOHN KNOX WALKUP
120 N. Mill St., Suite 303  Attorney General and Reporter
P. O. Box 611           
Dyersburg, TN  38025-0611   MARVIN E. CLEMENTS, JR.
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN  37243
        
                            PHILLIP BIVENS
                            District Attorney General
                            P. O. Drawer E
                            Dyersburg, TN  38025                        

Judge:SMITH

First Paragraph:

This matter represents an appeal by Appellant, David Cliff from the
Dyer County Circuit Court's dismissal of his pro se petition for
post-conviction relief.  Appellant is currently serving a fourteen
(14) year sentence for a conviction of aggravated assault.  On appeal,
Appellant raises the following issue for review: whether the trial
court erred in denying Appellant's pro se motion for a new trial based
upon the claim of ineffective assistance of counsel.

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

STATE OF TENNESSEE
VS.
RONNIE L. GRAHAM

Court:TCCA

Attorneys:   

FOR THE APPELLANT:
    
    TERRY D. SMART
    371 Carroll Avenue
    Memphis, TN  38105

FOR THE APPELLEE:
    
    JOHN KNOX WALKUP
    Attorney General and Reporter
    
    PETER M. COUGHLAN
    Assistant Attorney General
    Cordell Hull Building, 2nd Floor
    425 Fifth Avenue North
    Nashville, TN  37243-0493
    
    WILLIAM L. GIBBONS
    District Attorney General
    
    J. ROBERT CARTER, JR.
    Assistant District Attorney General
    Criminal Justice Complex 
    201 Poplar Avenue, Suite 301
    Memphis, TN  38103-1947
                       

Judge:RILEY

First Paragraph:

Defendant was convicted by a Shelby County jury of driving under the
influence of an intoxicant in violation of Tenn. Code Ann. S
55-10-401.  The trial court fined him $600 and sentenced him to serve
45 days, all but 48 hours suspended, followed by  11 months and 29
days on probation.  In cross-appeals the defendant challenges the
admissibility of breath alcohol test results from a Siemens Alcomat
device; the state challenges the sentence imposed.  This court
concludes that the test results were erroneously admitted and that the
sentence imposed was improper.  Thus, we REVERSE AND REMAND with the
admonition that should defendant be found guilty upon retrial, the
proper sentence is 11 months and 29 days with an appropriate portion
of that sentence suspended and the balance on probation.

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

STATE OF TENNESSEE
VS.
CARLOS D. HAYWOOD

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

A. C. WHARTON, JR.              JOHN KNOX WALKUP
Shelby County Public Defender   Attorney General & Reporter

BARRY KUHN                      ELIZABETH T. RYAN
Assistant Public Defender       Assistant Attorney General
(At Trial)                      Criminal Justice Division
                                425 Fifth Ave. North
WALTER GWINN                    2d Floor, Cordell Hull Bldg.
Assistant Public Defender       Nashville, TN 37243-0493    
(On Appeal)
201 Poplar Ave., Suite 201      WILLIAM L. GIBBONS
Memphis, TN 38103-1947          District Attorney General
                
                                PATIENCE R. BRANHAM
                                LEE V. COFFEE
                                Assistant District Attorneys General
                                201 Poplar Ave., Suite 301
                                Memphis, TN 38103-1947                         

Judge:WITT

First Paragraph:

The defendant, Carlos D. Haywood, was convicted in a jury trial in the
Shelby County Criminal Court of felony murder and attempt to commit
especially aggravated robbery.  After a bifurcated trial in which the
state sought a life sentence without the possibility of parole, the
jury found that the aggravating circumstance did not outweigh the
mitigating circumstances beyond a reasonable doubt and sentenced the
defendant to life with the possibility of parole. The trial court
sentenced the defendant to a consecutive sentence of twelve years as a
Range I offender for attempted especially aggravated robbery, a class
B felony.   In this appeal, the defendant contends (1) that the
evidence is legally insufficient to sustain his convictions, (2) that
the trial court erred in admitting testimony about the defendant's
gang affiliation, (3) that admission of five photographs of the
victim's body taken during the autopsy were unfairly prejudicial, and
(4) that his sentence is excessive.  Our review of the record has
uncovered no error requiring reversal of the defendant's convictions. 
We find, however, that the trial court incorrectly applied several
enhancement factors to the defendant's sentence.  Therefore, we affirm
the judgment of the trial court but modify the defendant's sentence
for attempted especially aggravated robbery.

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

STATE OF TENNESSEE
VS.
JOHNNY LAWRENCE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

A.C. WHARTON                JOHN KNOX WALKUP
Public Defender             Attorney General and Reporter

WALKER GWINN                GEORGIA BLYTHE FELNER
Assistant Public Defender   Assistant Attorney General
201 Poplar Avenue           425 Fifth Avenue North
Memphis, TN 38103           Nashville, TN 37243

                            WILLIAM GIBBONS
                            District Attorney General

                            DAVID C. HENRY
                            Assistant District Attorney General
                            Criminal Justice Complex, Suite 301
                            201 Poplar Avenue
                            Memphis, TN 38103                         

Judge:WELLES

First Paragraph:

The Defendant, Johnny Lawrence, pursuant to Tennessee Rule of
Appellate Procedure 3(b), appeals as of right his convictions for
driving under the influence of an intoxicant--second offense and
reckless driving.  The sole issue for review by this Court is whether
his conviction on both charges under the facts of this case violates
Defendant's right against double jeopardy as provided by the Tennessee
Constitution.  We conclude that it does not, and we affirm the verdict
of the jury as approved by the trial court.

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

STATE OF TENNESSEE
VS.
RATHAL PERKINS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

CLIFFORD K. McGOWN, JR.     JOHN KNOX WALKUP
113 North Court Square      Attorney General and Reporter
P.O. Box 26
Waverly, TN 37185           CLINTON J. MORGAN
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN 37243

                            CLAYBURN L. PEEPLES
                            District Attorney General
                            109 East First Street
                            Trenton, TN 38382
                         

Judge:WELLES

First Paragraph:

The Defendant, Rathal Perkins, was convicted of first degree murder
and sentenced to life imprisonment.  He now appeals his conviction,
pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure.  The
Defendant presents only one issue on appeal: whether the evidence is
sufficient to support a finding of premeditation to sustain his
conviction for first degree murder.  We affirm the judgment of the
trial court.

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

STATE OF TENNESSEE
VS.
GEORGE WASHINGTON

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

A.C. WHARTON                JOHN KNOX WALKUP
Public Defender             Attorney General and Reporter

WALKER GWINN                GEORGIA BLYTHE FELNER
Assistant Public Defender   Assistant Attorney General
201 Poplar Avenue           425 Fifth Avenue North
Memphis, TN 38103           Nashville, TN 37243-0493

                            WILLIAM GIBBONS
                            District Attorney General
    
                            JULIE MOSLEY
                            Assistant District Attorney General
                            Criminal Justice Complex, Suite 301
                            201 Poplar Avenue
                            Memphis, TN 38103                          

Judge:WELLES

First Paragraph:

The Defendant, George Washington, pursuant to Tennessee Rule of
Appellate Procedure 3(b), appeals as of right his conviction for
driving under the influence of an intoxicant.  The sole issue we
review on appeal is whether the evidence presented at trial was
sufficient to convict Defendant of that offense.  We conclude that the
evidence overwhelmingly supports the finding of Defendant's guilt, and
we therefore affirm his conviction.

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

STATE OF TENNESSEE
VS.

CHRISTOPHER A. WILLIAMS

Court:TCCA

Attorneys:   

For Appellant:              For Appellee:

James V. Ball               John Knox Walkup
Attorney at Law             Attorney General & Reporter
217 Exchange Avenue             
Memphis, TN  38105          Peter M. Coughlan
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Cordell Hull Building, Second Floor
                            Nashville, TN  37243-0493
                            
                            Patience Branham
                            Assistant District Attorney General
                            Criminal Justice Complex
                            201 Poplar Street, Suite 301
                            Memphis, TN  38103                       

Judge:WADE

First Paragraph:

The defendant, Christopher A. Williams, was indicted for first degree
murder, felony murder and attempted aggravated robbery and tried as an
adult.  The first trial ended in a mistrial.  In the second trial, the
jury could not reach a verdict on either of the murder indictments but
found the defendant guilty of attempted aggravated robbery.  The
defendant, fourteen years old at the time of the offense, was
sentenced as a Range I offender to six years in the county workhouse
and fined $1,000.00.  In this appeal of right, the defendant
challenges the sufficiency of the evidence.

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

WALTER JAMES WILSON
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:      FOR THE APPELLEE:

MARY CAY JERMANN        JOHN KNOX WALKUP
P.O. Box 3410           Attorney General and Reporter
Memphis, TN 38173
                        DOUGLAS D. HIMES
                        Assistant Attorney General
                        425 Fifth Avenue North
                        Nashville, TN 37243-0493

                        WILLIAM GIBBONS
                        District Attorney General

                        MICHAEL H. LEAVITT
                        Assistant District Attorney General
                        Criminal Justice Complex, Suite 301
                        201 Poplar Avenue
                        Memphis, TN 38103                        

Judge:WELLES

First Paragraph:

The Petitioner, Walter Wilson, was convicted of second degree murder
based upon a guilty plea.  He now appeals as of right the trial
court's denial of post-conviction relief, pursuant to Tennessee Code
Annotated S 40-30-216 and Rule 3(b) of the Tennessee Rules of
Appellate Procedure.  We affirm the judgment of the trial court.

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


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