TBALink Opinion-Flash

December 11, 1996 -- Volume #2 -- Number #114

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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00-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
14-New Opinons From TCA
01-New Opinons From TCCA

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TBALink Chief Editor


DAVID A. ALEXANDER and MACLIN P. DAVIS, JR.
VS.	
JULIA ANN WHITE INMAN

DISSENTING OPINION

Court:TCA

Anne C. Martin #15536               Ward DeWitt, Jr. #2626
DODSON, PARKER & BEHM               TRABUE, STURDIVANT & DEWITT
Harlan Dodson, III #2368            511 Union Street
306 Gay Street, Suite 400           2500 Nashville City Center
P.O. Box 198806                     Nashville, Tennessee 37219
Nashville, Tennessee 37219-8806     ATTORNEY FOR DEFENDANT/APPELLEE 
ATTORNEY FOR PLAINTIFF/APPELLANT

Judge: TODD

First Paragraph:

The defendant, Julia Ann White Inman has appealed from the judgment of
the Trial Court awarding the plaintiffs, Dave A. Alexander and Maclin
P. Davis, $141,000 for balance due plaintiffs for legal services in
her divorce case. MODIFIED AND REMANDED.

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

WALTER A. DICKMAN
VS. 
HOMES OF LEGEND, INC. And MEADOWS HOMES, INC.

CONCURRING OPINION

Court:TCA

RICHARD M. BROOKS               	CHARLES W. McKINNEY
215 Smotherman Avenue           	Two East Main Street
P.O. Box 255                    	Gordonsville, TN 38563
Carthage, TN 37030
ATTORNEY FOR PLAINTIFF/APPELLANT

KIMBERLY K. WHALEY              	DANIEL H. RADER III
B.P.R. #11186                   	Moore, Rader, Clift and Fitzpatrick
McHale, Lackey & Whaley         	46 North Jefferson Avenue
101 Westpark Drive, Suite 135   	Cookeville, TN 38502
Brentwood, Tennessee 37027
ATTORNEY FOR DEFENDANT/APPELLEE                         

Judge: TODD

First Paragraph:

The plaintiff, Walter A. Dickman, has appealed from a summary judgment
dismissing his action for his personal injuries sustained by
electrical shock while attempting to repair an electric furnace in a
mobile home manufactured by the defendant Homes of Legend, Inc. and
sold by Meadows Homes, Inc. REVERSED, VACATED AND REMANDED.

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

NANCY T. FRANCIS
vs.
REBECCA RUSSELL FRANCIS

Court:TCA

CLYDE A. DUNN, Newport, for Plaintiff-Appellant.
ROY T. CAMPBELL, JR., Newport, for Defendant-Appellee.                        

Judge: FRANKS

First Paragraph:

This action was brought to enforce a monetary judgment obtained by
plaintiff in North Carolina against the defendant. Defendant filed a
motion to dismiss stating inter alia that the judgment was obtained
without jurisdiction over defendant in the state of North Carolina,
and "because an action for alienation of affections has been abolished
by statute in Tennessee and is no longer recognized in this state."
The costs of the appeal are assessed to the appellee, and the cause
remanded.

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

LUVELL L. GLANTON
VS.
SHIRLEY BECKLEY

CONCURRING OPINION

Court:TCA

ROBERT A. ANDERSON, #6029
2021 Richard Jones Road, Suite 350
Nashville, Tennessee 37215
    ATTORNEYS FOR PLAINTIFF/APPELLANT

CHARLES GALBREATH, #2779
211 Union Street, Suite 901
Nashville, Tennessee 37201
    ATTORNEY FOR DEFENDANT/APPELLEE

Judge: TODD

First Paragraph:

The captioned plaintiff has appealed from an unsatisfactory judgment
in this suit arising from a joint real estate investment. VACATED AND 
REMANDED.

URL:http://www.tba.org/tba_files/TCA/GLANTON1_OPN.WP6
URL:http://www.tba.org/tba_files/TCA/GLANTONL_CON.WP6
Opinion-Flash

RICKY HEMBREE
VS.
CHARLES TRAUGHBER, CHAIRMAN OF THE TENNESSEE BOARD OF PAROLES,

CONCURRING OPINION

Court:TCA

EDWARD C. MILLER
Public Defender
P. O. Box 416
Dandridge, Tennessee 37725
Attorney for Petitioner/Appellant

CHARLES W. BURSON
    Attorney General and Reporter

PATRICIA C. KUSSMANN
Assistant Attorney General
404 James Robertson Parkway
Suite 2000
Nashville, Tennessee 37243
    Attorney for Respondent/Appellee                     

Judge: TODD

First Paragraph:

A prisoner in the custody of the Department of Correction had his
sentence reduced, and subsequently asked the Parole Board to grant him
a new hearing.  The Board considered his request, but declined to
grant the hearing.  The prisoner then filed a Petition for Certiorari
in the Chancery Court.  The court dismissed the Petition for failure
to state a claim upon which relief can be granted.  We affirm.

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

HAROLD HENSLEY and wife, LIDIA HENSLEY
VS.
RONNIE HENSLEY BRITT

Court:TCA

HAROLD H. COLE
326 West Drive, Box 170
White House, TN 37188
ATTORNEY FOR PLAINTIFFS/APPELLANTS

ROBERT G. INGRUM                    NATHAN HARSH
117 East Main Street                Guardian Ad Litem
Gallatin, TN 37066                  123 Public Square
                                    Gallatin, TN 37066
ATTORNEY FOR DEFENDANT/APPELLEE                         

Judge: TODD

First Paragraph:

The captioned plaintiffs have appealed from a non-jury judgment of the
Trial Court in their favor and against the captioned defendant in the
amount of $14,607.51.  Plaintiffs had sued for $86,000.00, arising out
of a series of transactions between the parties. AFFIRMED AND REMANDED.

URL:http://www.tba.org/tba_files/TCA/HENSLEY_OP2.WP6
Opinion-Flash

CHARLES G. KEY
VS.
EDWIN B. RASKIN COMPANY

Court:TCA

GEORGE E. COPPLE, JR.
Suite 218
172 Second Avenue, North
Nashville, Tennessee 37201
    Attorney for Plaintiff/Appellant

DAVID J. WHITE, JR.
WHITE & REASOR
3305 West End Avenue
Nashville, Tennessee 37203
    Attorney for Defendant/Appellee                        

Judge: CANTRELL

First Paragraph:

The issue on appeal is whether a lease entered into by the same
parties for a subsequent term is a renewal of the original lease,
thereby entitling the plaintiff to a real estate commission.  The
chancellor held that the new lease was not a renewal of the old one. 
We affirm that decision but modify the chancellor's order and delete
the judgment for the plaintiff for a part of the commission earned
during the first period. AFFIRMED AND REMANDED.

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

ROGER D. LANCASTER and CHERYL A. LANCASTER
VS. 
WILL C. ROBINETTE and DOROTHY ROBINETTE

Court:TCA

Gene Hallworth
Harry L. Weddle III
P.O. Box 938
Columbia, TN 38402-0938
    ATTORNEY FOR PLAINTIFFS/APPELLANTS

John T. Horton
BREWER, KRAUSE, BROOKS & MILLS
611 Commerce Street, Suite 2600
Nashville, TN 37203
    ATTORNEY FOR DEFENDANTS/APPELLEES                         

Judge: TODD

First Paragraph:

The plaintiffs, husband and wife, sued the defendants, brother and
sister in-law, for personal injuries suffered by the plaintiff husband
in a fall inside a tobacco drying barn owned by defendants. The Trial
Court granted summary judgment to the defendants. AFFIRMED AND
REMANDED.

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

HARRIET TERESA MARTIN
VS.
WASHMASTER AUTO CENTER, U.S.A., d/b/a WASHMASTERS AUTO CENTERS, and
MURFREESBOROROAD AUTOWASH CORPORATION, d/b/a WASHMASTERS AUTO
CENTERS

Court:TCA

LARRY R. WILLIAMS
CAROLYN E. UNDERWOOD
LARRY R. WILLIAMS, P.C.
329 Union Street
Nashville, Tennessee 37219-0632
    Attorneys for Plaintiff/Appellee

THOMAS PINCKNEY
ANDY ROWLETT
HOWELL & FISHER
Court Square Building
300 James Robertson Parkway
Nashville, Tennessee 37201-1107
    Attorneys for Defendants/Appellants                         

Judge: CANTRELL

First Paragraph:

In this slip and fall case, the main issue on appeal is whether there
is any evidence to support the plaintiff's verdict.  We resolve that
issue against the plaintiff and enter a judgment for the defendant in
accordance with the motion made at the end of all the evidence.
REVERSED AND REMANDED.

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

WILLIAM J. PICKETT
VS. 
LANA NEWTON PICKETT

Court:TCA

Hon. Joe W. Henry, Jr.
Attorney at Law
P.O. Box 458
Pulaski, TN 38478
ATTORNEY FOR PLAINTIFF/APPELLEE

Hon. Andrea Huddleston
Attorney at Law
P.O. Box 787
Lawrenceburg, TN 38464
ATTORNEY FOR DEFENDANT/APPELLANT                          

Judge: TODD

First Paragraph:

In this divorce case, the defendant counter-claimant  wife has
appealed from the judgment of the Trial Court declaring the parties to
be divorced "pursuant to the statute," dividing the marital estate,
granting custody of a minor child to the plaintiff-father, and
ordering the mother to pay child support. AFFIRMED AND REMANDED.

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

BETTY SMITH, RACHEL CHILDRESS AND THE PLAY CENTER NURSERY, INC.
vs. 
MARK REED and MELISSA REED, KINGSPORT PUBLISHING CORP., Keith Wilson,
Publisher, Kingsport Times-News, Tom Como, Managing Editor, Kingsport
Times-News, Allison Mechem, Reporter, Kingsport Times-News,
AND ALLISON MECHEM, Individually

Court:TCA

D. MITCHELL BRYANT, JENNE, SCOTT & BRYANT, Cleveland, and KARMEN K.
CAMPBELL, HOW, CAMPBELL & LEE, Sweetwater, for Plaintiffs Appellants.

DAVID W. BLANKENSHIP, Kingsport, and DAVID L. MARBURGER and BETH A.
BRANDON, BAKER & HOSTETLER, of counsel, for Defendants Appellees.
                        
Judge: FRANKS

First Paragraph:

In this action, the Trial Court granted summary judgment, and
plaintiffs have appealed. Plaintiff Smith is the owner of the Play
Center Nursery daycare, and plaintiff Childress is an employee at the
daycare.  The Reeds filed criminal charges against the plaintiffs
after they found blisters on the inside of their two year old son's
mouth.  The Reeds attributed those blisters to Ms. Smith's
disciplining their son.  She was accused of making their son, who had
been biting other children, touch his mouth to a hot pepper.  The
charges of child abuse were dismissed following a preliminary hearing.
AFFIRMED and REMANDED.

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

ELWIN N. SOUTH, SR.
VS.
TENNESSEE BOARD OF PAROLES

Court:TCA

ELWIN N. SOUTH, SR.
Lake County Regional Correctional Facility
Route 1, Box 330
Tiptonville, Tennessee 38079
    Pro Se/Petitioner/Appellant

CHARLES W. BURSON
Attorney General and Reporter

PATRICIA C. KUSSMANN
Assistant Attorney General
404 James Robertson Parkway
Suite 2000
Nashville, Tennessee 37243                         

Judge: CANTRELL

First Paragraph:

The Tennessee Board of Paroles declined to grant parole to a prisoner
in the custody of the Department of Correction.  He petitioned the
Chancery Court for a Writ of Certiorari.  The court dismissed his
petition.  We affirm.

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

JOE LARRY TURNBO
VS.
BRENDA JANE (THOMPSON) TURNBO

Court:TCA

MICHAEL W. BINKLEY
150 Second Avenue, N.
Suite 300
Nashville, Tennessee  37219
    ATTORNEY ON APPEAL FOR PLAINTIFF/APPELLANT

DENNIS PLUNK
404 W. Main Street
Savannah, Tennessee  38372
    ATTORNEY AT TRIAL FOR PLAINTIFF/APPELLANT

CLAUDIA S. JACK
Jack & Jack, Attorneys
22 Public Square
Columbia, Tennessee  38402-0827
    ATTORNEYS FOR DEFENDANT/APPELLEE

THOMAS W. HARDIN
102 W. 7th Street
Columbia, Tennessee 38402
    ATTORNEYS FOR DEFENDANT/APPELLEE                         

Judge: TODD

First Paragraph:

The husband appealed from a judgment granting to the wife an absolute
divorce, alimony in futuro, and division of marital property.  The
husband also complains of the refusal of the Trial Judge to recuse
himself because of alleged improprieties. MODIFIED, AFFIRMED AND
REMANDED.

URL:http://www.tba.org/tba_files/TCA/TURNBO2_OP.WP6
Opinion-Flash

BARBARA WOODALL
vs. 
STATE OF TENNESSEE DEPARTMENT OF HUMAN SERVICES

Court:TCA

W. ANDREW FOX, Knoxville, for Plaintiff-Appellant.

CHARLES W. BURSON, Attorney General and Reporter, WILLIAM J. MARETT,
JR., Assistant Attorney General, Nashville, for Defendant-Appellee.

Judge: FRANKS

First Paragraph:

Responding to a motion to dismiss, the Trial Court dismissed
plaintiff's action on the grounds that judicial review was premature.
Plaintiff, an employee of the Tennessee Department of Human Services,
filed proceedings against the agency asserting that she was entitled
to back pay for work performed outside her required duties.  At the
fifth step of the appeals process, the Tennessee Civil Service
Commission ("Commission") denied her a hearing on the grounds that her
complaint was "non-grievable" under Tenn. Comp. Rules and Regulations
1120-11-.08 (10), (12) (1994). AFFIRMED and REMANDED.

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

STATE OF TENNESSEE
VS.
BENITA COLLINS

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:
MACK GARNER                     CHARLES W. BURSON
Public Defender                 Attorney General & Reporter
419 High St.
Maryville, TN   37804           M. ALLISON THOMPSON               
(On Appeal)                     Counsel for the State   
                                450 James Robertson Pkwy.           
JIMMY KYLE DAVIS                Nashville, TN  37243-0493
713 Market St.  
Knoxville, TN   37901           MIKE FLYNN
                                District Attorney General
                                Blount County Courthouse
                                Maryville, TN   37801                            

Judge: PEAY

First Paragraph:

The defendant was indicted on one count of embezzlement, one count of
theft over sixty thousand dollars ($60,000), and one count of theft
over ten thousand dollars ($10,000).  She pled guilty to all three
counts, leaving her sentence to the court's determination.  After a
sentencing hearing, the court sentenced her as a Range I standard
offender. The defendant now appeals as of right, complaining that the
sentencing court misapplied mitigating and enhancement factors,
thereby imposing excessive sentences, and that it erred by refusing to
grant her an alternative sentence. AFFIRMED AS MODIFIED.

URL:http://www.tba.org/tba_files/TCCA/COLLINSB_OP2.WP6

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