TBALink Opinion-Flash

January 17, 1996 -- Volume #2 -- Number #04 Opinion-Flash

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 and the TN Attorney General.

This Issue:
New Opinons From TSC : 1
New Opinons From TCA : 6
New Opinons From TCCA : 1
New Opinons From AG : Pending

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Jim Moore
TBALink Co-Chief Editor
Opinion-Flash

Document Name  :ARNOLD.OPN.WP6
Court          :TSC


For Appellants:             For Appellees:

Michael Richards            Charles A. Wagner, III
Courtney N. Pearre          Knoxville, TN
John R. Branson
Memphis, TN

                        
First Paragraph:

We accepted this application for review, filed by Morgan
Keegan & Company, Inc. and D. Stanley Shelton pursuant to
Tenn. R. App. P. 11, in order to clarify the standard under
which a final decision rendered by an arbitration panel may
be judicially reviewed.  We find that under the facts and
circumstances here present, the review conducted by the
Court of Appeals was unduly extensive; we reverse the
judgment and reinstate the order of the trial court
upholding the ruling of the arbitration panel.

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

Document Name  :BUCKINGH.OPN.WP6
Court          :TCA


Ricky L. Wood, Parsons, Tennessee
Attorney for Defendants/Appellants.

Paul Kevin Carter, 
MILAM AND CARTER, Lexington, Tennessee
Attorney for Plaintiffs/Appellees.

                        
First Paragraph:

This case arises out of a complaint filed in the Chancery
Court of Decatur County by Appellees, Donald and Catherine
Buckingham (Buckinghams), against Appellants, Martha
Thomas, Ricky Thomas, Sheila Thomas, Bobby D. Thomas and
Jamie Page (Thomases).  In their complaint, the Buckinghams
alleged that they were entitled to access their property by
means of an  old road, which traverses the Thomases'
property.  The trial court ruled that the Buckinghams, as
abutting landowners of a once public road, had the right to
access over the road.  The Thomases have appealed this
judgment.

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

Document Name  :DROZD.OPN.WP6
Court          :TCA


CLYDE PAUL HOLLAND
ATTORNEY FOR PLAINTIFF/APPELLANT

LUTHER E. CANTRELL, JR.
DAVIES, CANTRELL, HUMPREYS & McCOY
ATTORNEY FOR DEFENDANTS/APPELLEES

PAMELA BINGHAM BROUSSARD
ASSISTANT ATTORNEY GENERAL
ATTORNEY GENERAL'S OFFICE - TAX DIVISION
ATTORNEY FOR INTERVENOR

                        
First Paragraph:

From the decision of the Trial Court dismissing a portion of
the original complaint and from the subsequent decision of
the Trial Court granting summary judgment for the
Defendants as to a second ground of recovery sought, the
Plaintiff was granted an interlocutory appeal to this
court.      The evidence shows that the Plaintiff and her
daughter purchased a condominium in the Hermitage Villa
Condominiums for the purpose of a residence for the
Plaintiff.  The condominiums had been developed by
Defendant Gary Waller, and consisted of some ninety-six
duplex units.  Defendant Hillsboro Property Management
Company, Inc. managed the condominiums, and Hermitage
Village Condominiums Homeowners Association, Inc. is
alleged to have been a homeowners association formed to
oversee the development of the condominiums.  It is
undisputed that on the evening of April 11, 1990, at
approximately 8:00 p.m., the Plaintiff was attempting to
traverse a distance of some twenty feet across her yard to
the door of her condominium, aided by the use of her
walker, when one leg of the walker sank in a hole in the
yard which had been created by a mole or some yard pest. 
It is further undisputed that this caused the Plaintiff's
walker to become unstable, causing the Plaintiff to fall to
the ground, breaking her hip.

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

Document Name  :JACO.OPN.WP6
Court          :TCA


THOMAS F. BLOOM, Nashville, 
Attorney for Petitioner/Appellant

CHARLES W. BURSON, Attorney General & Reporter, 
and MICHELLE K. HOHNKE, Assistant Attorney General
Attorneys for Respondent/Appellee

                       
First Paragraph:

This appeal involved judicial review of an administrative
decision regarding the denial of petitioners application
for benefits for care at a nursing home facility.  The
chancellor granted the motion to dismiss of the Department
of Health, Bureau of Medicaid (respondents or by name) on
the ground that the trial court did not have subject matter
jurisdiction due to the failure of petitioner to cause a
summons to be properly issued and served on the Department
within the sixty (60) day time limit specified in T.C.A. 
4-5-322(b)(1).  The sole issue presented for review by this
court is whether the chancellor erred in dismissing
petitioners suit for judicial review for lack of subject
matter jurisdiction.  We find no error and affirm.

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

Document Name  :MULLINS.OPN.WP6
Court          :TCA


J. Cecil McWhirter,
Paul M. O'Brien,
MCWHIRTER & WYATT, Memphis, Tennessee
Attorney for Defendant/Cross-Defendant/Appellant, 
Hong Jin Crown Corporation.

Fred M. Ridolphi, Jr.,
HUMPHREYS DUNLAP WELLFORD ACUFF & STANTON, P.C., Memphis, TN
Attorney for Plaintiff/Appellee, Diane Mullins.

Jerry E. Mitchell,
Rebecca Adelman,
THOMASON, HENDRIX, HARVEY, JOHNSON & MITCHELL, Memphis, TN
Attorneys for Defendant/Cross-Plaintiff/Appellee, 
Harley-Davidson Yamaha BMW of Memphis, Inc.

Robert L. J. Spence, Jr.,
THE HARDISON LAW FIRM, Memphis, Tennessee
Attorney for Defendant/Cross-Defendant/Appellee, 
Sullivan Brothers Distributors.

                        
First Paragraph:

This is an interlocutory appeal by Appellant, Hong Jin Crown
Corporation (HJC), from the trial court's denial of its
motions to dismiss, as to Appellee, Harley-Davidson Yamaha
BMW of Memphis, Inc. (Harley-Davidson), on the grounds of
lack of personal jurisdiction and the running of the
statute of limitations, and as to Appellee, Diane Mullins
(Mullins), on the additional ground of insufficiency of
process and service of process.

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

Document Name  :ROSS.OPN.WP6
Court          :TCA


T. TURNER SNODGRASS
Attorney for Plaintiff/Respondent/
Counter-Petitioner/Appellant

GRAYSON SMITH CANNON
Attorney for Defendant/Petitioner
Counter-Respondent/Appellee

                        
First Paragraph:

From the decision of the Trial Court modifying the final
decree of divorce between the parties, terminating payments
of spousal support previously ordered to be paid by the
husband to the wife, the wife appeals.

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

Document Name  :SMITHC.OPN.WP6
Court          :TCA


THOMAS C. BINKLEY
C. BRIAN JACKSON
TRABUE, STURDIVANT & DeWITT
ATTORNEYS FOR PLAINTIFFS/APPELLEES

THOMAS L. WHITESIDE
ATTORNEY FOR DEFENDANTS/APPELLANTS

                       
First Paragraph:

From the decision of the Trial Court establishing a boundary
line dividing tracts of land owned by the parties, the
Defendants appeal.

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

Document Name  :RYANS.OPN.WP6
Court          :TCCA


FOR THE APPELLANT:               FOR THE APPELLEE:

JOE H. WALKER                   CHARLES W. BURSON
District Public Defender        Attorney General & Reporter

WALTER B. JOHNSON               CLINTON J. MORGAN
Asst. Public Defender           Asst. Attorney General
P.O. Box 334                    450 James Robertson Pkwy.
Harriman, TN 37748              Nashville, TN  37243-0493
(At Trial and On Appeal)
                                CHARLES E. HAWK
                                District Attorney General

                                FRANK A. HARVEY
                                Asst. District AG
                                P.O. Box 703
                                Kingston, TN 37763  

                       
First Paragraph:

The defendant was charged in the indictment with aggravated
child abuse.  On October 11, 1994, he pled guilty to child
abuse, a class A misdemeanor under T.C.A.  39-15-401(a). 
At the sentencing hearing on December 16, 1994, the
defendant requested that the trial court place him on what
is commonly known as "judicial diversion" under T.C.A.
40-35-313.  The trial court denied the defendant's request
and instead sentenced him to eleven months and twenty-nine
days with a community corrections program.  In this appeal
as of right, the defendant challenges the trial court's
denial of his request for judicial diversion.  We find that
the defendant's issue lacks merit, and his sentence is
therefore affirmed.

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

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