TBALink Opinion-Flash

February 15, 1996 -- Volume #2 -- Number #17 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 : 11
New Opinons From TCCA : 2
New Opinons From AG : Pending

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Jim Moore
TBALink Co-Chief Editor
Opinion-Flash

BENNIE WOODSON, as Administrator of the Estate of Elizabeth
W. Terrell, Deceased, and as Administrator of the Estate of
John Thomas Woodson, Deceased, 
v. 
PORTER BROWN LIMESTONE COMPANY, INC. and FELIX EWING MORRIS,

Court:TSC

For Plaintiff/Appellant:    For Defendants/Appellees:

Ann Buntin Steiner          Robert E. Hoehn
Frank Steiner               John B. Carlson
STEINER & STEINER           WATKINS, McGUGIN,
Nashville, TN               McNEILLY & ROWAN
                            Nashville, TN  
First Paragraph:

In this appeal from the Cheatham County Circuit Court, we
are confronted by a unique aberration of the rules of law
announced by the United States Supreme Court in Batson v.
Kentucky,  Powers v. Ohio, and Edmondson v. Leesville
Concrete Company, Inc..  In that series of cases, the United
States Supreme Court recognized first,  that the criminal
defendant's rights are violated when race-based challenges
exclude a juror from service, Batson v. Kentucky,  475 U.S.
79 (1985);  second, that the exclusion likewise violates a
juror's rights, Powers v. Ohio, 499 U.S. 400 (1991); and
third, that the juror's and litigant's rights are viable in
civil, as well as criminal, cases.  Edmondson v. Leesville
Concrete  Company, Inc.,  500 U.S. 614 (1991).  In the case
before the Court we must consider the impact of these rules
in a civil case in which the excluded minority juror
declines to serve.

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

ALBERT LEE CRAIN, v. VELMA CHRISTINE CRAIN,

Court:TCA

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

Barbara J. Walker               Thomas L. Whiteside
Columbia, Tennessee             Fowlkes & Whiteside
                                Nashville, Tennessee

First Paragraph:

This appeal involves the dissolution of a 27-month marriage.
After declaring the parties divorced pursuant to Tenn. Code
Ann. 36-4-129(b) (1991), the Chancery Court for Maury County
awarded the parties the property held in their separate
names and declined to award the wife rehabilitative spousal
support.  The wife now takes issue with the trial courts
denial of her request for rehabilitative spousal support. 
We have determined that the wife is not entitled to spousal
support under the facts of this case and, therefore, affirm
the judgment.

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

LEMUEL A. DUCKETT,   v. SHEILA ANN DUCKETT,

Court:TCA

GLENNA M. RAMER, Chattanooga, for Appellant

HARRY BERKE of BERKE, BERKE & BERKE, Chattanooga, for
Appellee

First Paragraph:

This appeal arises out of post-divorce proceedings.  The
issues raised by the appellant, Lemuel A. Duckett (Father),
cause us to focus on a hearing before the trial court on
October 24, 1994.  At that hearing, the court received proof
with respect to two pleadings--a petition for contempt filed
by Sheila Ann Duckett (Mother), and a petition to modify
filed by Father.  In her petition, Mother claimed that
Father was in contempt because of his failure to make
payments on a child support arrearage of $7,650 established
by an order entered April 20, 1994.  Father, on the other
hand, sought the custody of the parties' only child, Lee
Belton Duckett, who was 17-1/2 years old at the time of the
hearing.

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

EMMA JEAN ELDREDGE,  v. BILLY W. MONAGHAN and wife, KATHY
MONAGHAN,

Court:TCA

Barrett T. Painter, Cleveland, For the Appellant

James F. Logan, Jr., Cleveland, For the Appellee

First Paragraph:

This action for damages and for rescission of a deed
executed and delivered on March 7, 1990 was dismissed for
failure by the plaintiff to carry the burden of proof.  She
appeals, insisting that the evidence preponderates against
the judgment of dismissal.  Our standard of review is de
novo on the record accompanied by the presumption that the
judgment is correct unless the evidence otherwise
preponderates.  Tenn. R. App. P. 13(d).  We affirm for the
reasons following.

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

REGINA DARLENE HUNTER v. ED BROWN, JR. 
and  CONCURRING OPINION

Court:TCA

JERROLD L. BECKER and LUCINDA M. ALBISTON 
OF KNOXVILLE FOR APPELLANT

PATRICK C. COOLEY OF KINGSTON FOR APPELLEE

First Paragraph:

Darlene Hunter filed this action against Ed Brown, Jr., on
July 15, 1993, alleging that he sexually abused her during
1981 and 1982.  In his answer, Mr. Brown denied the
allegations of the complaint and averred that the action was
barred by T.C.A. 28-3 104(a), the one-year statute of
limitations applicable to personal injury actions.  On
January 31, 1995, the Trial Court granted summary judgment
to Mr. Brown, ruling that the statute of limitations barred
Ms. Hunter's claim.  Ms. Hunter appeals the Trial Court's
ruling, insisting that her suppressed memory of the event
tolled the running of the statute of limitations.

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

JOHNNY KING, v. CITY OF CARYVILLE,

Court:TCA

PHILIP A. KAZEE of SEXTON, SEXTON, & KAZEE, P.C., Oneida,
for Appellant.

CARROL D. KILGORE of BRANSTETTER, KILGORE, STRANCH &
JENNINGS, Nashville, for Appellee.

First Paragraph:

This is a breach of contract action.  The defendant City of
Caryville (Caryville or City) refused to honor a contract
admittedly executed by its Mayor.  The contract granted the
plaintiff Johnny King (King) the exclusive right to operate
and manage a solid waste landfill for the City.  The trial
court granted Caryville's Tenn. R. Civ. P. 12.02(6) motion
to dismiss, finding that under the provisions of
[Caryville's] statutory Charter and particularly of T.C.A.
former  6-2-201(1) and (19), the power [to authorize the
contract] could only be exercised by following the formal
requisites for the adoption of ordinances and not by mere
resolution of the City Council, so that the Resolution
adopted and the Contract entered into are ultra vires and
therefore null and void under T.C.A. former  6-2-103(b).

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

HUBERT MOREE, v. CAROL BRYANT and ROGER MOREE,

Court:TCA

FLOYD E. HUTCHERSON, Rockwood, for Plaintiff-Appellant.

JOHN D. AGEE, COOLEY, COOLEY & AGEE, Kingston, for
Defendants Appellees.

First Paragraph:

In this action, grantor's father sought to set aside a deed
to his children.  The Trial Court refused to grant relief
and the father has appealed.

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

JACK A. MORRIS,  v. RICHARD JOHNSON, ET AL,

Court:TCA

Richard L. Dunlap Paris, Tennessee 
ATTORNEY FOR PLAINTIFF/APPELLEE

John D. Drake Murfreesboro, Tennessee 
ATTORNEY FOR DEFENDANT/APPELLANT

First Paragraph:

The Defendant appeals from a judgment in favor of the
Plaintiff rendered by the trial judge, sitting without a
jury, in a case brought by a licensed real estate broker to
recover his sales commission from the owner of the real
estate.  The owner listed his property with the Plaintiff
realtor, who obtained the signatures of a prospective buyer
and the seller on an Agreement of Sale.  The sale was never
closed.  We affirm the award of a judgment below for the
amount of the commission.

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

CECELIA C. MUNSEY, As Administratrix of the Estate of
Lillian E. Collins
v. 
JOHN CHARLES BARRETT, JR, ALLSTATE INSURANCE, and NANCY
BARKER McNUTT, as Administratrix of the Estate of Wiley O.
Collins

Court:TCA

THOMAS C. JESSEE OF JOHNSON CITY and THOMAS DOSSETT OF
KINGSPORT FOR APPELLANT

REBECCA OTTINGER CUTSHAW OF GREENEVILLE FOR APPELLEE JOHN
CHARLES BARRETT, JR.

First Paragraph:

Cecelia C. Munsey, as Administratrix of the estate of her
mother, Lillian E. Collins, appeals a $10,000 judgment
rendered in her favor against John Charles Barrett, Jr., and
the Allstate Insurance Company, uninsured motorist carrier
for the vehicle being operated by her husband, in which she
was a passenger.

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

IN RE: ESTATE OF ERA MAE CRAWFORD, WAGGONER RICHARDSON,
CHARLES RICHARDSON AND JUANITA MIZE,
v.
PAT M. FRALEY, SUCCESSOR EXECUTRIX, ESSIE BILES and ANDY
BILES,

Court:TCA

JOE W. HENRY, JR.
HENRY, HENRY, STACK,
GARNER & SPEER, P.C.
Pulaski, Tennessee
Attorney for Plaintiffs/Appellants

FRED I. WOMACK
Fayetteville, Tennessee

DON WYATT
Fayetteville, Tennessee 
Attorneys for Defendants/Appellees

First Paragraph:

This is an appeal from a decision by the trial court holding
that the persons who joined in the petition to probate a
will in common form could not subsequently contest the will.
 We reverse the trial court on the issue actually decided
and remand the cause for further proceedings on the issue of
estoppel.

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

SAM TUCKER and wife DOROTHY TUCKER
v.
HOLIDAY OUT IN AMERICA AT TANSI CAMPSITE SUBDIVISION NO. 1
PROPERTY OWNERS ASSOCIATION 

Court:TCA

HARRY D. SABINE OF CROSSVILLE FOR APPELLANT

HENRY T. OGLE OF KNOXVILLE FOR APPELLEES

First Paragraph:

In this suit Sam Tucker and his wife Dorothy Tucker sue
Holiday Out In America At Tansi CampSite Subdivision No. 1
Property Owners Association, seeking a declaration that the
Association's attempt to amend the master deed applicable to
all lots in the subdivision, which precluded them from
receiving water from November 16 through March 14 of the
ensuing year was unenforceable.

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

STATE OF TENNESSEE,  v. JAMES BRADLEY,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

ELLERY E. HILL              CHARLES W. BURSON
Charter Federal Building    Attorney General and Reporter
Knoxville, TN       
                            AMY L. TARKINGTON
                            Assistant Attorney General

                            JERRY N. ESTES
                            District Attorney General

                            STEVE WARD
                            Assistant District Attorney

First Paragraph:

At a bench trial the Appellant, James Bradley, was convicted
in the Monroe County Criminal Court of two counts of
assault.  He received concurrent sentences of eleven months
and twenty-nine days and a $250 fine on each count.
Following service of sixty days incarceration, the balance
of the sentences were suspended.  In this direct appeal, the
Appellant maintains that the trial judge erroneously
rejected the theory the Appellant acted in self-defense.  We
find no such error and affirm the conviction.

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

LAWRENCE MOORE, v. STATE OF TENNESSEE,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Mark E. Stephens                Charles W. Burson
District Public Defender        Attorney General/ Reporter

David Gall                      Randall E. Nichols  
Assistant Public Defender       District Attorney General
Knoxville, Tennessee            
                                Hunt S. Brown
                                Asst Atty. Gen. / Reporter
                                                            
                                Zane Scarlett
                                Assistant District Attorney General

First Paragraph:

This is an appeal as of right by the appellant, Lawrence
Moore, from a judgment entered in the Knox County Criminal
Court dismissing his petition entitled "Petition for Writ of
Habeas Corpus Without Application to Tenn. Code Ann. 29-21
104."  Although styled as a petition for writ of habeas
corpus, the trial court treated the petition as one seeking
post-conviction relief, and upon motion of the State,
dismissed the petition as being time-barred pursuant to
Tennessee Code Annotated section 40-30-102.

URL:http://www.tba.org/tba_files/TCCA/MOORE3.OPN.WP6
Opinion-Flash

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