TBALink Opinion-Flash

March 07, 1996 -- Volume #2 -- Number #24 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 : 0
New Opinons From TCA : 13
New Opinons From TCCA : 3
New Opinons From AG : Pending

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Jim Moore
TBALink Co-Chief Editor
Opinion-Flash

DONNA JUNE ARCHER and JAMES DAVID ARCHER, Individually and
as Administrators of the Estate of VERNA LEE ARCHER,
v.
BURTON PLAZA ASSOCIATES, LTD., and AMERICAN MANAGEMENT
COMPANY, INC.,

Court:TCA

WILLIAM E. PHILLIPS, Phillips and Hale, Rogersville, for
Appellants.

TRACEY SHAW, Howell and Fisher, Nashville, for Appellees.
                     
First Paragraph:

This is an action for wrongful death.  The plaintiffs seek
to recover damages from the owners and operators of the
Burton Plaza Apartments complex in Rogersville.  The
plaintiffs assert that the defendants were negligent in
failing to provide proper security and protection for the
occupants of the apartments. 

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

DOROTHY LOUISE BECK, v. WENDELL LEE BECK,   

Court:TCA

PERRY P. PAINE, JR. and H. ALLEN BRAY of PAINE, GARRETT &
BRAY, Maryville, for Appellant

H. CHRIS TREW of HIGGINS, BIDDLE, CHESTER & TREW, Athens,
for Appellee
                        
First Paragraph:

This is a divorce case.  The lower court's judgment
dissolved a marriage that had endured, tumultuously at
times, for over 29 years.  The trial judge granted the
46-year old plaintiff, Dorothy Louise Beck (Wife), a divorce
on the ground of adultery; awarded her custody of the
parties' two minor children;

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

CAROLYN BRUCE and husband, JOHN DAVID BRUCE,
v.
ROBERT OLIVE AND SANDRA G. OLIVE, Individually and d/b/a
Olive and Olive, P.C.,

Court:TCA

Lynn M. Lauderback of Kingsport
For Plaintiffs-Appellants

R. Franklin Norton, Geoffrey D. Kressin,
Norton & Luhn, P.C., of Knoxville
For Defendants-Appellees
                      
First Paragraph:

This is a legal malpractice case.  Plaintiffs, Carolyn
Bruce, and husband, John David Bruce, appeal from the order
of the trial court granting summary judgment to defendants,
Robert Olive and Sandra G. Olive, individually and d/b/a
Olive & Olive, P.C..

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

CHERYL ANN CUPPLES, v. LUTHER WAYNE CUPPLES,

Court:TCA

Lloyd R. Tatum, 
TATUM AND TATUM, Henderson, Tennessee
Attorney for Plaintiff/Appellant.

Mary Jo Middlebrooks, 
MIDDLEBROOKS & GRAY, P.A., Jackson, Tennessee
Attorney for  Defendant/Appellee.
                       
First Paragraph:

This divorce action involves dissolution of the 25 year
marriage between Appellant, Cheryl Ann Cupples ("Wife"), and
Appellee, Luther Wayne Cupples ("Husband").  Wife filed for
divorce in September 1992, citing irreconcilable differences
and inappropriate marital conduct.  Husband counterclaimed
for divorce alleging inappropriate marital conduct.  Both
parties sought custody of their minor son, Jonathan, age 10
at the time of trial.  On appeal, Wife cites as error the
trial court's award of an absolute divorce and custody of
the child to Husband, its failure to award her alimony and
its division of the marital estate.

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

LISA ANN DANGLER                
v.
EDWARD EUGENE DANGLER, father, PATRICIA G. DANGLER, and
EDWARD C. DANGLER, grandparents,

Court:TCA

WALTER L. OLSON, Nashville
Attorney for Petitioner/Appellant

THOMAS W. HARDIN, Hardin & Parkes, Nashville
Attorney for Respondents/Appellees
                        
First Paragraph:

This case involves the application and interpretation of
certain provisions of the Uniform Child Custody Jurisdiction
Act (UCCJA) as enacted by the states of Missouri and
Tennessee, T.C.A.  36-6-201 to 36-6-225 (1991), as well as
the Federal Parental Kidnapping Prevention Act (PKPA).  28
U.S.C.A.  1738A (1994). The courts of this state first
became involved with this tragic set of complicated
circumstances when Lisa Ann Dangler (petitioner), a
resident of Missouri, filed suit in the Circuit Court of
Maury County, Tennessee (Tennessee trial court) seeking to
have that court enroll a foreign judgment from the state of
Missouri and to enforce a writ of habeas corpus issued by
the Circuit Court of Barry County, Missouri (Missouri trial
court), which had as part of a divorce proceeding in that
court in 1983 awarded petitioner custody of  the parties
minor child.  

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

ECI BUILDING COMPONENTS, INC.,
v. 
CHANL-LOC DOCKS, INC. and GENE SMITH,

Court:TCA

J. Myers Morton, Knoxville, Attorney for the Appellant, ECI
Building Components, Inc.

C. Paul Harrison, Knoxville, Attorney for the Appellee,
Marine Dock & Supply, Inc.
                       
First Paragraph:

A judgment was entered against the defendants, jointly, on
September 2, 1992.  A garnishment in aid of a writ of
execution was issued by the Clerk on January 19, 1993 to
Marina Dock and Supply, Inc., which answered by letter on
January 20, 1993 that it "was not indebted to the defendant
at the time of the service of the garnishment."

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

BRENDA L. GRAY, v. STEPHEN D. GRAY,

Court:TCA

JOE P. BINKLEY, SR.
Nashville

JOHN BELL WHITESELL
Nashville
ATTORNEYS FOR PLAINTIFF/APPELLEE

CAROL L. SOLOMAN
Nashville

THOMAS F. BLOOM
Nashville
ATTORNEYS FOR DEFENDANT/APPELLANT
                       
First Paragraph:

Following a marriage of approximately eight years, Wife
filed a complaint for absolute divorce in November 1993.  In
her complaint, she alleged adultery, inappropriate marital
conduct, and irreconcilable differences.  Husband answered
and filed a counter-complaint which alleged cruel and
inhuman treatment, inappropriate marital conduct, and
irreconcilable differences.

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

TINA HARVEY et ux,  v. GENETH WOLFER, D.O., 

Court:TCA

Selma Cash Paty, Chattanooga, For the Appellant

David E. Harrison and Tonya Kennedy McIntosh, Chattanooga,
For the Appellee
                        
First Paragraph:

Initially, this action was one for damages for the alleged
medical malpractice of the defendant in dropping the
plaintiff Tina Harvey or preventing her from falling and
fracturing her ankle after an injection which may have
caused numbness in her legs.

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

JAMES JENNINGS, v. CHARLES TRAUGHBER, ET AL,

Court:TCA

JAMES JENNINGS, pro se
Clifton, Tennessee

CHARLES W. BURSON
Attorney General and Reporter

EUGENE J. HONEA
Assistant Attorney General
Attorneys for Appellee
                        
First Paragraph:

Petitioner James Jennings, an inmate at CCA-South Central
Correctional Center acting pro se, sought judicial review of
the decision rendered by the Tennessee Board of Parole
("TBOP"), revoking Petitioner's parole, by common law writ
of certiorari.  The Chancery Court, Davidson County, granted
the Motion to Dismiss filed by Respondent, Charles
Traughber, Chairman, TBOP.  Petitioner appeals the
chancellor's decision.

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

DUANE A. PETERS, v. COMMONWEALTH ASSOCIATES,

Court:TCA

KEVIN W. SHEPHERD, Maryville, for Appellant.

DAVID T. BLACK and C. EDWIN SHOEMAKER of KIZER AND BLACK,
Maryville, for Appellee.
                        
First Paragraph:

This is an action brought by Duane A. Peters (Peters) for
alleged violations of the Tennessee Securities Act of 1980
and the Tennessee Consumer Protection Act of 1977.  Peters'
suit against Commonwealth Associates (Commonwealth) arose
out of investments made by Peters through David Dudkin, an
agent of Commonwealth.  Commonwealth moved to stay this
action and to compel arbitration of Peters' claims pursuant
to T.C.A.  29-5-301 et seq., the Uniform Arbitration Act. 
In support of its motion, Commonwealth relied upon a written
agreement, signed by Peters, wherein he agreed to submit all
controversies between the parties to arbitration.

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

JEFFREY KEITH PHILLIPS and JENNIFER PHILLIPS,   
v. 
EUGENE RUSSELL,

Court:TCA

TIMOTHY S. BELISLE, Anderson, Fugate, Givens, Counts, &
Belisle, Johnson City, for Appellant.

ROBERT J. JESSEE, Johnson City, for Appellees.
                        
First Paragraph:

The parties to this appeal entered into a contract whereby
the appellant was to construct a home for the appellees. 
Problems developed between the parties which resulted in an
action by the plaintiffs-appellees to recover damages from
the defendant-appellant for defective workmanship in the
construction and to remove a cloud from their title
resulting from a lien filed by the defendant.  

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

LYNDA DIANE SCHMIDT, v. GLENN VERN SCHMIDT, 

Court:TCA

Selma Cash Paty, Chattanooga, For the Appellant 

Barrett T. Painter, Cleveland, For the Appellee 
                    
First Paragraph:

The trial court awarded the plaintiff rehabilitative alimony
of $1,000.00 monthly for 24 months.  The plaintiff appeals,
insisting that the award is (1) inadequate to her needs and
(2) should have been in futuro.  No other issue is
presented.

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

BRIAN WEIFORD d/b/a ELITE CABLE TELEVISION COMPANY,
v.
FIELDS DEVELOPMENT CO., INC., d/b/a DEERFIELD RESORT,

Court:TCA

ANDREW N. HALL, Wartburg, for Appellant.

JOSEPH C. COKER, Jacksboro, for Appellee.
                        
First Paragraph:

This is an appeal from the judgment of the trial court
granting the appellee's motion for summary judgment.  We
affirm the judgment of the trial court.

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

STATE OF TENNESSEE, v. KENNETH MCFARLAND,

Court:TCCA

For Appellant:              For Appellee:
Periann S. Houghton         Charles W. Burson
Asst. Public Defender       Attorney General & Reporter

                            George Linebaugh                                    
                            Counsel for the State
                            Criminal Justice Division

                            Clayburn L. Peeples
                            District Attorney General
                            and
                            Garry Brown
                            Asst. District Attorney General
                        
First Paragraph:

The defendant, Kenneth McFarland, was convicted of
aggravated robbery and, as a standard offender, received a
Range I sentence of twelve years.  On appeal, the defendant
claims the evidence was insufficient to support the verdict.

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

STATE OF TENNESSEE, v. JAMES RUSSELL NEILL, JR.,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

W. J. Reynolds              Charles W. Burson
Attorney at Law             Attorney General & Reporter 

                            William David Bridgers
                            Assistant Attorney General

                            Robert "Gus" Radford
                            District Attorney General
    
                            John Overton
                            Asst. Dist. AG       
                        
First Paragraph:

Following a trial before a Hardin County jury, the
appellant, James Russell Neill, Jr., was found guilty of
driving under the influence of an intoxicant.  He was
sentenced to eleven months and twenty-nine days with all but
ten days suspended.  In this appeal as of right, the
appellant alleges that the evidence was insufficient to
support his conviction.  Upon a review of the record in this
case, we agree that the evidence is insufficient as a matter
of law to sustain a conviction for driving under the
influence of an intoxicant.  However, the evidence is more
than sufficient to sustain a conviction for the lesser
included offense of driving while impaired in violation of
Tennessee Code Annotated section 55-10-415(a)(1)(A). 

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

STATE OF TENNESSEE, v. DEANDRADE PHILLIPS,

Court:TCCA

For the Appellant:          For the Appellee:

Randall E. Reagan           Charles W. Burson
602 Gay Street              Attorney General and Reporter
Knoxville, TN  37902    
                            Amy L. Tarkington
                            Assistant Attorney General                      
                            Criminal Justice Division
                
                            H. Greeley Wells, Jr.   
                            District Attorney General

                            David Overbay
                            Asst. District Attorney General
                       
First Paragraph:

The appellant, Deandrade "DeeDee" Phillips, appeals as of
right from the judgment of conviction and the sentence
entered by the Criminal Court of Sullivan County.  On July
14, 1994,  the appellant was found guilty by a jury of one
count of sale of cocaine in excess of one-half gram, a class
B felony.  On August 29, 1994, the trial court sentenced the
appellant to ten years in the state penitentiary as a range
I, standard offender.  The appellant now seeks our review of
the conviction and sentence challenging (1) the sufficiency
of the evidence and (2) the sentence imposed by the trial
court.

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

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