TBALink Opinion-Flash

January 30, 1996 -- Volume #2 -- Number #11

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 : 7; New Opinons From TCA : 5; New Opinons From TCCA : 1; New Opinons From AG : Pending

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Click the URL Link at end of each Opinion Paragraph below. This option will allow you to download the original WP 6.0 document.

Jim Moore
TBALink Co-Chief Editor
Opinion-Flash

BOBBY L. CAMPER, II,
v.
DANIEL B. MINOR, Administrator ad litem of the 
ESTATE OF JENNIFER L. TAYLOR, and SHARON R. BARNETT,    

Court:TSC

For Plaintiff-Appellant:        For Defendants-Appellees:

John P. Chiles                  Jack M. Vaughn
Kingsport, Tennessee            Fuller & Vaughn
                                Kingsport, Tennessee
Thomas F. Bloom
Nashville, Tennessee
                       
First Paragraph:

In this negligent infliction of emotional distress case, the
plaintiff Bobby L. Camper, II, appeals from the Court of
Appeals' judgment granting the defendants a summary
judgment.  This case presents two issues for our
determination: (1) whether a non-negligent driver who
suffered no substantial physical injury may recover for
emotional injuries under the facts presented in this case;
and (2) whether the "family purpose doctrine" survives the
adoption of comparative negligence and the abolition of
joint and several liability.

URL:http://www.tba.org/tba_files/TSC/CAMPER.OPN.WP6


TATE OF TENNESSEE, v. BILLY D. FRASIER,
And DISSENTING OPINION

Court:TSC

For Appellee:                   For Appellant:

Charles W. Burson               Donald G. Dickerson
Attorney General & Reporter     Cookeville, Tennessee

Kathy Morante
Deputy Attorney General
Nashville, Tennessee

William Edward Gibson 
District Attorney General
Thirteenth Judicial District

Owen G. Burnett
Assistant District Attorney
Cookeville, Tennessee   
                        
First Paragraph:

This case presents the following issues for our
determination: (1) whether a person who has been stopped by
the police for driving under the influence (DUI) has a
right, under either the state or federal constitutions, to
consult with an attorney prior to making a decision as to
whether to submit to or refuse a blood or breath test; and
(2) whether such a person's state or federal constitutional
right against self-incrimination prohibits a refusal to
submit to such a test from being admitted as evidence at
trial, when the person was not informed that the evidence
could be used against him or her.  We answer both questions
in the negative, and therefore affirm the judgment of the
Court of Criminal Appeals, which declined to suppress the
evidence of the refusal.

URL:http://www.tba.org/tba_files/TSC/FRASIERB.OPN.WP6
URL:http://www.tba.org/tba_files/TSC/FRASIERB.DIS.WP6


JOSIE GRAY, ADMIN OF THE ESTATE OF PEGGY M. BUSH, DECEASED, 
v. 
FORD MOTOR COMPANY, 

Court:TSC

For Plaintiff-Appellant:        For Defendants-Appellees:
Stephen L. Swann                Ward DeWitt, Jr.
Arlington, VA                   Mary Ellen Morris
                                Trabue, Sturdivant & DeWitt
AMICUS CURIAE:

E. Blake Moore
John B. Bennett
Spears, Moore, Rebman & Williams
                        
First Paragraph:

Pursuant to Rule 23, Rules of the Tennessee Supreme Court,
the Court has accepted for decision the following question
of law certified by the Sixth Circuit Court of Appeals:
Whether principles of comparative fault should apply in
Tennessee medical malpractice actions so as to result in
the apportionment of damages between the estate of a
decedent who acted negligently in causing an initial injury
and a physician who negligently treated the decedent for
that injury.

URL:http://www.tba.org/tba_files/TSC/GRAYJ.OPN.WP6


JOSEPH CARL OWENS,  
v.
TRUCKSTOPS OF AMERICA, TRUCKSTOPS OF AMERICA, INC., 
AND B.P. AMERICA, INC.,
v.
B. MICHAEL DESIGN, INC., AND VITRO PRODUCTS, INC.,
And DISSENTING (IN PART) OPINION

Court:TSC

For Plaintiff/Appellant:    For Defendants/Third-Party
                            Plaintiffs/Appellees:   
Steve North
Mark North                  Barry L. Howard 
Nashville                   Michael H. Johnson
                            Gracey, Ruth, Howard, Tate
                            & Sowell

                            For Third-Party Defendants/
                            Appellees:  

                            Martin D. Holmes
                            Stewart, Estes & Donnell
                    
                            John M. Bryant, Jr.
                            W. Bryan Brooks
                            Brewer, Krause & Brooks
                        
First Paragraph:

This interlocutory appeal presents for determination the
principles of comparative fault applicable to the
assessment of liability among joint tortfeasors and the
application of those principles to this transitional case,
in which the cause of action accrued prior to the decision
in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992).  The
decision of the Court of Appeals is modified and the case
is remanded to the trial court.

URL:http://www.tba.org/tba_files/TSC/OWENSJC.OPN.WP6
URL:http://www.tba.org/tba_files/TSC/OWENSJC.DIS.WP6


STATE OF TENNESSEE, v. JOSEPH R. RICCI, & JOSEPH D. RICCI,

Court:TSC

For the Appellant:                  For the Appellees:

Charles W. Burson                   Mark C. Scruggs
Attorney General and Reporter       Nashville, TN  
                
Eugene J. Honea
Assistant Attorney General

Victor S. Johnson, III
District Attorney General

Deb U. Smith
Assistant District Attorney General             
                        
First Paragraph:

In this case we are called upon to determine whether the
application of the pre-1989 statute of limitations to the
offenses for which defendants were indicted violates the ex
post facto provisions of the United States and Tennessee
constitutions.  We find that the circumstances of this case
do not implicate the ex post facto provisions.  The
applicable statute of limitations does not bar prosecution
of defendants for those security fraud violations that
occurred after September 28, 1988, or for earlier
violations which could not have been reasonably discovered
prior to that date.

URL:http://www.tba.org/tba_files/TSC/RICCIJR.OPN.WP6


RICKEY ALLEN FRY, v. JANE ANN CERMOLA,
    
Court:TCA

DOUGLAS R. BEIER of EVANS & BEIER, Morristown, 
for Appellant

ETHEL P. LAWS, Morristown, for Appellee
                       
First Paragraph:

The Hamblen County Juvenile Court awarded the custody of
Rikki Jacqueline Fry, a minor, to her father, Ricky Allen
Fry.  The trial court's order modified an earlier custody
decree of the same court.  The child's mother, Jane Ann
Cermola, appeals, challenging the correctness of the trial
court's order.  The appellee contends that we do not have
jurisdiction of this appeal because, so the argument goes,
the appellant did not file her notice of appeal in
compliance with T.R.A.P. 3(e) and 4(a).

URL:http://www.tba.org/tba_files/TCA/CERMOLA.OPN.WP6


STEVE GILLIAM  d/b/a STEVE'S AUTO TRIM AND UPHOLSTERY 
v. 
AUTO OWNERS MUTUAL INSURANCE COMPANY  

Court:TCA

A. BENJAMIN STRAND, JR., WITH STRAND & GODDARD, 
OF DANDRIDGE, TENNESSEE, FOR APPELLANT

LINDA J. MOWLES and ERIC S. NOWINSKI, 
WITH LEWIS, KING, KRIEG, WALDROP & CATRON, 
OF KNOXVILLE, TENNESSEE, FOR APPELLEE
                        
First Paragraph:

Plaintiff has appealed from a decree sustaining Defendant's
motion for summary judgment based on material
misrepresentations in Plaintiff's application for
insurance, which increased the risk of loss to Defendant.

URL:http://www.tba.org/tba_files/TCA/GILLIAMS.OPN.WP6


JAMES HOLDEN and MARINA HOLDEN  
v.
BOBBY L. FRAZIER, DORIS J. FRAZIER,D. D. ROBERTS, EDITH
ROBERTS, MONTY F. SAMS, and REMAX REAL ESTATE ONE OF
MORRISTOWN, INC.

Court:TCA

CLINTON R. ANDERSON, OF MORRISTOWN, TENNESSEE, 
FOR APPELLANTS BOBBY L. FRAZIER AND DORIS J. FRAZIER

C. DWAINE EVANS, OF MORRISTOWN, TENNESSEE, 
FOR APPELLANTS D. D. ROBERTS AND EDITH ROBERTS

VIRGINIA A. SCHWAMM, WITH TOWLE & SCHWAMM, 
OF KNOXVILLE, TENNESSEE, FOR APPELLEES
                
First Paragraph:

The pivotal issue on this appeal is, where the purchasers of
a residence sue their grantors and the grantors to
plaintiffs' grantors for damages based on a defective
septic tank sewer system which did not conform to the
restrictive covenants relating to a sub-surface sewage
disposal system, may the trial court, in lieu of awarding
or denying damages, sua sponte, order and decree as follow:

URL:http://www.tba.org/tba_files/TCA/HOLDENJ.OPN.WP6


WILLIAM LEON MARCUS, v. SIDNEY W. GILREATH, 

Court:TCA

Carl Winkles, Knoxville, For the Appellant.

Richard L. Duncan, Knoxville, For the Appellee.
                        
First Paragraph:

This non-jury action, which sought recovery of the balance
of a fee allegedly owing to the plaintiff, a toxicologist,
by the defendant, an attorney, was dismissed following
presentation of the evidence.  Our review is de novo on the
record accompanied with the presumption that the judgment
is correct unless the evidence otherwise preponderates. 
Tenn. R. App. P. 13(d).

URL:http://www.tba.org/tba_files/TCA/MARCUS.OPN.WP6


BRENDA UNDERWOOD,
v.
MacMILLAN/McGRAW-HILL SCHOOL PUBLISHING COMPANY, and its
general partners, McGRAW-HILL SCHOOL PUBLISHING, INC. and
MacMILLAN SCHOOL PUBLISHING, INC.,

Court:TCA

Steven F. Dobson and Stacie L. Caraway, 
Chattanooga, For the Appellant.

Jeffrey S. Norwood and Karen M. Smith, 
Chattanooga, For the Appellee.
                        
First Paragraph:

This action to recover a contractual bonus was decided
adversely to the plaintiff on the narrow ground that she
was not on the defendant's payroll on January 1, 1993,
allegedly a condition precedent to her entitlement to the
bonus.
    
URL:http://www.tba.org/tba_files/TCA/UNDERWOD.OPN.WP6


STATE OF TENNESSEE, v. TIMOTHY GOSE,    

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Charles W. Burson               A. Philip Lomonaco
Attorney General & Reporter     Attorney at Law

Merrilyn Feirman
Assistant Attorney General

Randall E. Nichols
District Attorney General

Zane M. Scarlett
Assistant District Attorney General
                        
First Paragraph:

The State of Tennessee appeals as of right from a judgment
of the trial court setting aside a conviction for vehicular
homicide and granting Timothy Gose's post trial motion for
judgment of acquittal.  The state contends that "[t]he
evidence adduced at trial was sufficient to find the
defendant guilty of vehicular homicide."  This Court finds
that the evidence contained in the record is insufficient,
as a matter of law, to support a finding by a rational
trier of fact that Gose was guilty of vehicular homicide
beyond a reasonable doubt.

URL:http://www.tba.org/tba_files/TCCA/GOSE.OPN.WP6

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