TBALink Opinion-Flash

March 29, 1996 -- Volume #2 -- Number #32 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 : 2
New Opinons From TCA : 11
New Opinons From TCCA : 7
New Opinons From AG : Pending

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Jim Moore
TBALink Co-Chief Editor
Opinion-Flash

KULTURA, INC.,  v. SOUTHERN LEASING CORPORATION,

Court:TSC

For Plaintiff-Appellant:        For Defendant-Appellee:

Douglas L. Dutton               Frederick L. Conrad, Jr.
Hodges, Doughty & Carson        Andrew L. Colocotronis  
Knoxville                       Ambrose, Wilson, Grimm
                                and Durand
                        
First Paragraph:

This case presents for decision the liability of a "UCC-1"
filer who fails to timely file a termination statement.  The
plaintiff, Kultura, Inc., asserts that pursuant to Tenn.
Code Ann.  47-9-404(1) (1992), it is entitled to damages
for the loss of the sale of its business and attorney's
fees, and the statutory penalty of $100.00, as the result of
the defendant's, Southern Leasing Corporation's, failure to
file a termination statement under TN's Uniform
Commercial Code. 

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

GARY WORLEY AND PHYLLIS WORLEY, INDIVIDUALLY AND AS
CONSERVATORS FOR THE ESTATE OF PHILLIP WORLEY,
v. 
WEIGEL'S, INC.,     

Court:TSC

For Plaintiffs-Appellees:       For Defendant-Appellant:

George F. Legg                  Darryl G. Lowe
Becky H. Halsey                 Lisa A. Lowe
Stone & Hinds, P.C.             Lowe, Shirley & Yeager
Knoxville                       Knoxville
                        
First Paragraph:

This case presents for review the liability of a seller of
alcoholic beverages to a person under 2l years of age.  The
trial court granted summary judgment of no liability to the
seller.  The Court of Appeals reversed on the finding that
the case presents issues for the jury.  This Court finds
that, pursuant to public policy expressly declared by the
legislature regarding liability for the sale of intoxicating
liquors, the seller in this case is not liable for the
injuries alleged, as a matter of law.

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

EILEEN M. BLAKE, on her own behalf and on behalf of all
others similarly situated within the State of TN,
v.
ABBOTT LABORATORIES, INC., BRISTOL-MYERS SQUIBB CO., and
MEAD JOHNSON & CO.,

Court:TCA

GORDON BALL, Knoxville, for the Appellant.

ROBERT J. WALKER and R. DALE GRIMES, Bass Berry and Simms,
Nashville, for Bristol-Myers Squibb Co., and Mead Johnson
Company.

CHARLES W. BURSON, Attorney General and Reporter, MICHAEL E.
MOORE, Solicitor General, PERRY ALLAN CRAFT, Deputy Attorney
General, and VERNON A. MELTON, JR., Amicus Curiae.
                    
First Paragraph:

This case originated in the Circuit Court for Blount County.
 The complaint ostensibly attempted to state a class action
against the defendants, alleging a violation of The
TN Unfair Trade Practices Act, (T.C.A.  47-25-101
et seq.), hereinafter referred to as The Trade Practices
Act, and The TN Consumer Protection Act, (T.C.A. 
47-18-101 et seq.)  No order has been entered pursuant to
Rule 23.03, TN Rules of Civil Procedure, allowing the
case to proceed as a class action.

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

DAVID BROCK, ANGEL BURRAGE, TRESA COOPER, SHARON CRAWFORD,
KAREN CLARK HICKMAN, CAROLYN HINES, LAJUANA JONES, W. RUTH
OBEN, MARY OLDAKER, AND MARTHA SMITH,                
v.
PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, PATTY
CROCKER, NAOMI SMITHERMAN, AND DONNA WILCOX,

Court:TCA

LYNN PERRY, Cleveland, for Appellants

CHRISTOPHER H. STEGER and KAREN M. SMITH of MILLER & MARTIN,
Chattanooga, for Appellees
                       
First Paragraph:

In the joint complaint filed in this action, each of the ten
plaintiffs asserted an individual cause of action against
their former employer, Provident Life and Accident Insurance
Company (Provident), and three of the companys supervisors.
 Each of the plaintiffs relied upon similar facts in
charging that Provident had breached an employment contract,
had breached its implied covenant of good faith and fair
dealing, and had been guilty of the tort of negligent
misrepresentation.  

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

AMALIA DEUS, M.D.,  
v. 
HAROLD NEVELS, M.D., RUPERT A. FRANCIS, M.D., and MEHARRY
MEDICAL COLLEGE, a Division of George W. Hubbard Hospital,

Court:TCA

CHARLES HAMPTON WHITE
CORNELIUS & COLLINS
Nashville, TN
Attorney for Plaintiff/Appellant

C. HAYES COONEY
WATKINS, McGUGIN, McNEILLY & ROWAN
Nashville, TN
Attorney for Defendants/Appellees
                        
First Paragraph:

The only question raised on this appeal is whether Meharry
Medical College breached its contract with a medical
postgraduate student when it discharged her in March of
1993.  The Chancery Court of Davidson County dismissed the
complaint, finding that at the time of her discharge the
plaintiff did not have a contract for a definite term.  We
reverse.

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

RUBY HARDEN, by Conservator WANDA FUZZELL,
v.
FREDIA WADLEY, M.D., Commissioner TN Department of
Health, Bureau of Medicaid,

Court:TCA

SHEARON W. HALES
DAVID KOZLOWSKI
Legal Services of South
 Central TN, Inc.
Columbia, TN
ATTORNEYS FOR PETITIONER/APPELLANT

CHARLES W. BURSON
Attorney General and Reporter

LISA A. YACUZZO
Assistant Attorney General
ATTORNEYS FOR RESPONDENT/APPELLEE
                        
First Paragraph:

Petitioner/appellant, Ruby Harden by conservator Wanda
Fuzzell (Ms. Harden), appealed and asked this court to
reverse the judgment of the Chancery Court for Davidson
County which affirmed a denial of Medicaid benefits to Ms.
Harden for nursing home care.  Ms. Harden contends that the
decision of the respondent/appellee, Fredia Wadley,
Commissioner of the TN Department of Health, Bureau
of Medicaid, denying her Medicaid benefits, is arbitrary and
capricious.  

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

IMOGENE HICKS AND HUSBAND, CARL HICKS, v. PAUL MILLER,              

Court:TCA

THOMAS K. McALEXANDER
HILL, BOREN, DREW & MARTINDALE
Jackson, TN
Attorney for Plaintiffs/Appellants

BILLY J. STOKES
FANSLER & WILLIAMS
Knoxville, TN
Attorney for Appellee
                       
First Paragraph:

The present appeal arises out of a multi-car automobile
accident that occurred on August 30, 1991, in Campbell
County, TN.  Plaintiffs Imogene and Carl Hicks appeal
the jury's verdict assessing equal liability to both Mrs.
Hicks and the Defendant, Paul Miller, and awarding damages
to neither party.

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

SHARON HUFFMAN, THE SURVIVING MOTHER OF SHARON ELAINE
BLEDSOE, A MINOR,
v.
BRUCE A. BALDWIN, et al AND HARRIS WEBB,

Court:TCA

Harry Wiersema, Jr., Knoxville, TN
Brenda L. Lindsay, Knoxville, TN
Attorneys for Plaintiff/Appellant.

Arthur B. Goddard,
GODDARD & GAMBLE, Maryville, TN
Attorney for  Defendant/Appellee, Harris Webb.
                       
First Paragraph:

This appeal results from the trial court's grant of summary
judgment in favor of the one remaining defendant, Harris
Webb.  The plaintiff, Sharon K. Huffman, is the surviving
mother of Sharon Elaine Bledsoe, a minor, who was killed in
an automobile accident on June 5, 1987. 

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

DWAYNE EDWYNN INGRAM, v. CATHERINE HALL INGRAM, 

Court:TCA

Kay Farese Turner of Memphis
Charles W. McGhee of Memphis    
For Plaintiff-Appellee

Stevan L. Black of Memphis
Vicki J. Singh of Memphis
For Defendant-Appellant
                        
First Paragraph:

This is a child custody case.  Dwayne Edwynn Ingram (Father)
and Catherine Hall Ingram (Mother) were divorced by decree
entered June 16, 1992.  The decree provided for joint legal
custody of the parties' minor child, Matthew, born February
9, 1989, with Father having primary physical custody. 
Mother appealed to this Court and, while the appeal was
pending, filed a Petition for Change of Custody in chancery
court.   

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

FREDRIKA JO IRVIN,  v. TERRY LEE IRVIN, 

Court:TCA

Russell E. Freeman, HAYNES, WALKER AND FREEMAN,
Goodlettsville, TN for Defendant/Appellant.

F. Dulin Kelly, KELLY & KELLY, Hendersonville, TN for
Plaintiff/Appellee.
                        
First Paragraph:

Following the entry of the divorce decree, Terry Lee Irvin
(Husband) appeals from the trial courts award of permanent
support to Fredrika Jo Irvin (Wife), contending that the
court erred in awarding permanent support versus
rehabilitative support. 

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

HARSE RAY and wife, FLORENCE RAY, v. JAMES ANTHONY SCOTT,

Court:TCA

SHERIDAN C. RANDOLPH, Cleveland, for Appellants

PHILLIP C. LAWRENCE of POOLE, LAWRENCE, THORNBURY, STANLEY &
MORGAN, Chattanooga, for Appellee
                        
First Paragraph:

This is a grandparents visitation rights case.  We are
asked to review the judgment of the Circuit Court of Bradley
County dismissing the grandparents complaint.

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

SAFETY OPTICAL DIVISION OF MID-SOUTH OPTICAL LABORATORIES, 
INC.,
v.                      
NATIONAL RAILROAD PASSENGER CORP.,

Court:TCA

FRANK P. PINCHAK, WITT, GAITHER & WHITAKER, P.C.,
Chattanooga, for Plaintiff-Appellant.

HARRY R. CASH, GRANT, KONVALINKA & HARRISON, P.C.,
Chattanooga, for Defendant-Appellee.
                        
First Paragraph:

In this action in debt, the Trial Judge entered judgment
against defendant for $5,368.57, but refused to award
plaintiff attorneys fees, interest and costs, and plaintiff
has appealed.

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

CHRISTIE SHONDELLE ELDER        
BOONE VANDERPOOL,           
v.
DOUGLAS CLINTON BOONE,          
v.
ANN SEAT,                   

Court:TCA

JAMES L. CURTIS
Nashville, TN
Attorney for Respondent/Appellant

JERRY W. HAMLIN
Ashland City, TN
Attorney for Petitioner/Appellee
                        
First Paragraph:

The paternal grandmother of an eight year old girl filed a
petition against the girls mother for enforcement of her
visitation rights and for contempt.  The mother
counter-petitioned to terminate the grandmothers visitation
rights.  The proof showed that the mother had agreed to
include regular visitation by the grandmother in the final
decree of divorce, that the grandmother had exercised her
visitation for about four years, without objection by the
mother...

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

STATE OF TN, v. ANDRE S. BLAND,  

Court:TCCA

For the Appellant               For the Appellee

Patricia Ann Odell              Charles W. Burson
50 North Front St.              Attorney General / Reporter
Memphis, TN 38103               Nashville, TN 

William L. Johnson              William David Bridgers
50 North Front St.              Assistant District AG
Memphis, TN 38103               Nashville, TN 

                                John. W. Pierotti
                                District Attorney General

                                Thomas Henderson
                                Assistant District Attorney General

First Paragraph:

The appellant, Andre S. Bland, was convicted of attempted
aggravated robbery, especially aggravated robbery, attempted
first-degree murder, and first-degree murder.  In the
sentencing hearing, the jury found one aggravating
circumstance, that the murder was especially heinous,
atrocious, or cruel in that it involved torture or serious
physical abuse beyond that necessary to produce death. 

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

WILLIAM L. HAMPTON  v. STATE OF TN,  

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Charles M. Corn             Charles W. Burson
District Public Defender    Attorney General and Reporter 
                            450 James Robertson Parkway
Richard Hughes, Jr.         Nashville, TN 37243-0493
Assistant Public Defender
P.O. Box 1453               Darian B. Taylor            
Cleveland, TN        Assistant Atty. Gen. & Reporter                             
                            
                            Jerry N. Estes                                      
                            District Attorney General

                            Rebble S. Johnson                                       
                            Asst District Attorney General
    
First Paragraph:

The appellant, William L. Hampton, appeals as of right the
dismissal of his petition for post-conviction relief by the
Bradley County Criminal Court.

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

LESTER DALE HERRON, v. STATE OF TN,  

Court:TCCA

For the Appellant:      For the Appellee:

Pro Se                  Charles W. Burson
                        Attorney General and Reporter
    
                        Ruth A. Thompson
                        Assistant Attorney General                          
                        
                        C. Berkeley Bell, Jr.
                        District Attorney General

                        Doug Godbee
                        Asst. District Attorney General
                        
First Paragraph:

The appellant, Lester Dale Herron, appeals pro se the
dismissal of his petition for post-conviction relief without
the appointment of counsel or an evidentiary hearing.  In
this appeal, the appellant presents essentially two issues
for our review.  First, the appellant argues that the
post-conviction court's order of dismissal does not comply
with Tenn. Code Ann. 40-30-118(b) (1990).  
 
URL:http://www.tba.org/tba_files/TCCA/HERRONLD.OPN.WP6
Opinion-Flash

STATE OF TN, v. MICHAEL J. HOWARD,

Court:TCCA

For Appellant               For Appellee
Marvin E. Ballin            Charles W. Burson
Ballin & Ballin, P.C.       Attorney General & Reporter
Memphis,  TN        
                            Michael J. Fahey, II
                            Assistant Attorney General

                            John W. Pierotti
                            District Attorney General
                            and
                            Jennifer S. Nichols
                            Asst. District Attorney General

First Paragraph:

The defendant, Michael J. Howard, appeals his conviction for
aggravated sexual battery.  The trial court initially
imposed a Range I sentence of eight years, to be suspended
to require the defendant to serve a two-year sentence with
the Community Corrections Program.  Later, the trial court
rescinded the suspended sentence, reinstated the eight-year
sentence, and fined the defendant $5,000.

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

STATE OF TN, v. RONNIE DALE PHILLIPS,  

Court:TCCA

For the Appellant:          For the Appellee:

Randall A. York             Charles W. Burson
and                         Attorney General of TN
Proctor Upchurch            and
P.O. Box 3349               Clinton J. Morgan
Crossville, TN 38557        Asst Attorney General of TN

                            William E. Gibson
                            District Attorney General
                            and
                            Ben Fann
                            David Patterson 
                            Asst District AG

First Paragraph:

The defendant, Ronnie Dale Phillips, appeals from a jury
conviction in the Criminal Court of Cumberland County for
voluntary manslaughter, a Class C felony.  He received a
sentence of four years and eight months as a Range I,
standard offender to be served in the custody of the
Department of Correction and a fine of five thousand
dollars. 

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

STATE OF TN,             
v.
STEVEN DEWAYNE TRANSOU, ROBERT JAMES JOHNSON, JAMES EDWARD
SIMMONS, DONALD WAYNE GEANES, AND MITCHELL W. WILLIAMSON,

Court:TCCA

FOR THE APPELLANTS:             FOR THE APPELLEE:

Joe H. Byrd, Jr.                Charles W. Burson
203 S. Shannon Street,          Attorney General & Reporter
Jackson, TN 38302-2764          450 James Robertson Parkway
(Counsel for Transou)           Nashville, TN 37243-0493

Joseph L. Patterson             Ellen H. Pollack
225 West Baltimore,             Assistant Attorney General
Jackson, TN 38301               450 James Robertson Parkway 
(Counsel for Johnson)           Nashville, TN 37243-0493

James D. Gass                   James G. Woodall
203 S. Shannon Street,          District Attorney General
Jackson TN 38301                P.O. Box 2825
(Counsel for Simmons)           Jackson, TN 38302-2825

G. William Hymers, III          Lawrence E. Nicola
107 S. Shannon Street           Asst. District AG
Jackson, TN 38301               P.O. Box 2825
(Counsel for Geanes)            Jackson, TN 38302-2825

George Morton Googe
District Public Defender
    and
Daniel J. Taylor
Assistant Public Defender
227 West Baltimore Street
Jackson, TN 38301
(Counsel for Williamson)
                       
First Paragraph:

The appellants, Steven Dewayne Transou, Robert James
Johnson, James Edward Simmons, Donald Wayne Geanes, and
Mitchell W. Williamson, were convicted of possessing more
than one-half gram of crack cocaine with intent to sell or
deliver, a Class B felony, and possession of drug
paraphernalia, a Class A misdemeanor, by a jury of their
peers.  Williamson was also convicted of possessing
marijuana, a Class A misdemeanor. 
    
URL:http://www.tba.org/tba_files/TCCA/TRANSOU.OPN.WP6
Opinion-Flash

STATE OF TN, v. JASON WINDHAM,   

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

DONNA ROBINSON MILLER       CHARLES W. BURSON
Chattanooga, TN             Attorney General and Reporter
  37402
                            ELIZABETH T. RYAN
                            Assistant Attorney General
    
                            GARY D. GERBITZ
                            District Attorney General
        
                            H.C. BRIGHT
                            Assistant District Attorney
                        
First Paragraph:

In August of 1994, Appellant Jason Windham pled guilty to
one count of aggravated burglary, one count of burglary of a
vehicle, two counts of attempted burglary of a business, two
counts of theft of property over $1000, two counts of
burglary of a business, one count of theft of property under
$500, one count of possession of marijuana, and one count of
possession of drug paraphernalia.  

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

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