TBALink Opinion-Flash

April 30, 1996 -- Volume #2 -- Number #42 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 : 14
New Opinons From TCCA : 9
New Opinons From AG : Pending

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Jim Moore
TBALink Co-Chief Editor
Opinion-Flash

SHIRLEY IRENE BRAY COX, v. TOM ED COX, JR.,

Court:TCA

HAROLD D. BALCOM, JR., Kingston, for Appellant.

J. POLK COOLEY, COOLEY, COOLEY & AGEE, Rockwood, for
Appellee.
                       
First Paragraph:

In this divorce action, the wife appeals the findings by the
Trial Court relative to the property distribution, and the
husband argues the Court erred in admitting an exhibit.

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

WILLIAM R. DAUGHERTY and wife   
v. 
SANDOR L. BRAUN and DON ANDERSON, Individually, and SANDOR
L. BRAUN and DON ANDERSON as Co-Partners associated and in
business as BRAUN-ANDERSON PARTNERSHIP and BRAUN
CONSTRUCTION CORPORATION,

Court:TCA

C. MARK TROUTMAN, McCord & Troutman, Knoxville, for
Appellants.

BEECHER A. BARTLETT, JR., and ADRIENNE L. ANDERSON, Kramer,
Rayson, Leake, Rodgers & Morgan, Knoxville, for appellees.
                       
First Paragraph:

This case originated as an action seeking damages for breach
of a construction contract.  After a lengthy bench trial,
the court found in favor of the plaintiffs against the
defendant, Braun Construction Company only and dismissed the
action as to the remaining defendants.  He likewise
dismissed a counterclaim filed by Braun Construction
Company.  Judgment was duly entered in favor of the
plaintiffs in the amount of eighteen thousand, three hundred
eighteen dollars and three cents ($18,318.03). 

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

LILLIAN H. EDWARDS, v. JASON ALAN MILLER,  

Court:TCA

JAMES S. THOMPSON, Logan, Thompson, Miller, Bilbo, Thompson
& Fisher, P.C., Cleveland, for the Appellant.

PAUL H. DIETRICH, Dietrich, Dietrich & Powers, Cleveland,
for the Appellee.
                        
First Paragraph:

This case arose out of an automobile accident.  The
plaintiff, a pedestrian, was struck by a car being driven by
the defendant.  At the close of the plaintiff's proof, the
court directed a verdict in favor of the defendant thereby
giving rise to this appeal.  We affirm the judgment of the
trial court.

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

CATHY ANN GRACEY, v. JOSEPH DOUGLAS GRACEY, JR.,

Court:TCA

DAVID M. SIBLEY, Chattanooga, for Appellant

ALBERT L. WATSON, III, Chattanooga, for Appellee
                        
First Paragraph:

This is a post-divorce case.  It revolves around the efforts
of the appellant, Joseph Douglas Gracey, Jr. (Father), to
move with his two minor children from the Hamilton County
area to California.  The trial court entered an order on
July 5, 1995, changing the custody of the parties minor
child, Anna Rebekah Lee Gracey (Anna), from Father to the
childs mother, the appellee Cathy Ann Gracey (Mother).  The
order provided that the custody of the other minor child,
Joshua Joel Gracey (Joshua), would remain with Father.  The
order, by implication, allowed Father to move to California
with Joshua.  

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

AMANDA HOFFMAN b/n/f, KAREN BUCHANAN, Plaintiff/Appellant.
BLUE CROSS/BLUE SHIELD OF TENNESSEE, Intervening Plaintiff,
v.
JOSEPH E. WILKINS,

Court:TCA

Lucien Dale, Nashville, Tennessee
Thurman T. McLean, 
DALE, ROSENBERG & McLEAN, Nashville, Tennessee
Attorneys for Plaintiff/Appellant.

David J. White,
WHITE & REASOR, Nashville, Tennessee
Attorney for Defendant/Appellee.
                        
First Paragraph:

This is an appeal by Appellant, Amanda Hoffman, b/n/f Karen
Buchanan, from the trial courts grant of summary judgment
in favor of the appellee, Joseph E. Wilkins.

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

JOHN JACO, v. DEPARTMENT OF HEALTH, BUREAU OF MEDICAID,

Court:TCA

THOMAS F. BLOOM, Nashville, Attorney for
Petitioner/Appellant

CHARLES W. BURSON, Attorney General & Reporter, and MICHELLE
K. HOHNKE, Assistant Attorney General, Nashville Attorneys
for Respondent/Appellee
                        
First Paragraph:

This appeal involves the judicial review of an
administrative decision regarding the denial of petitioners
application for benefits for care at a nursing home
facility.  The chancellor granted the motion to dismiss of
the Department of Health, Bureau of Medicaid (respondent
or State) on the ground that the trial court did not have
subject matter jurisdiction due to the failure of petitioner
to cause a summons to be properly issued and served on the
Department within the sixty (60) day time limit specified in
T.C.A.  4-5-322(b)(1) (1991).  

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

LUTHER, ANDERSON, CLEARY & RUTH, P.C.,  GARY CARNES,
Individually and as next friend of MICHAEL CARNES, a minor,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
and LEROY BRATTON and PATRICIA BRATTON,

Court:TCA

DAVID L. FRANKLIN of LUTHER, ANDERSON & CLEARY, P.C.,
Chattanooga, for Appellants.

JOSEPH R. WHITE of SPEARS, MOORE, REBMAN & WILLIAMS,
Chattanooga, for Appellee.
                        
First Paragraph:

In this appeal, we are asked to decide whether an insurer is
entitled to collect its claimed subrogation interest, and,
if so, whether the insurer must pay the insureds attorney a
fee for collecting that interest from third party
tortfeasors.  We affirm the trial courts ruling that the
insurer is entitled to reimbursement of its subrogation
interest, free of the attorneys fee.

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

THOMAS H. MEEKS, d/b/a T.R. AGRI-SYSTEMS
v.
FRANK WHEATLEY  

Court:TCA

RANDY SELLERS OF CLEVELAND FOR APPELLANT

ROGER E. JENNE OF CLEVELAND FOR APPELLEE
                       
First Paragraph:

This is a suit by Thomas H. Meeks, d/b/a T.R. Agri Systems,
against Frank Wheatley to recover the amount owed on a
contract he alleges he had with Mr. Wheatley to remove and
re install interior equipment necessary for Mr. Wheatley's
poultry production enterprise.

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

STATE OF TENNESSEE, DEPARTMENT OF HUMAN SERVICES,
v.                      
BONNIE SUE NORTON and RICK NORTON, 
IN THE MATTER OF: CODY JAY NORTON DALLAS RAY NORTON
(Children under the age of 18 years)

Court:TCA

CHARLES W. BURSON, Attorney General & Reporter and MICHELLE
K. HOHNKE, Assistant Attorney General, Nashville, for
Petitioner-Appellee.

DAVID L. LEONARD, LEONARD & KERSHAW, Greeneville, for
Defendants-Appellants.
                       
First Paragraph:

In this action the Trial Court terminated the parental
rights of appellants to the children ages six and seven at
the time of trial.

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

MELVIN SHEETS,  v. BOBBY JOE KYLE and DENNIS KYLE,          

Court:TCA

J. REED DIXON of DIXON & STUTTS, Sweetwater, for Appellants.

J. POLK COOLEY of COOLEY, COOLEY & AGEE, Rockwood, for
Appellee.
                       
First Paragraph:

Melvin Sheets sued Bobby Joe Kyle (Bobby Kyle) for breach of
contract.  He sought damages and other relief.  He later
amended his complaint to add Bobby Kyles son, Dennis Kyle,
as an additional party defendant.  Sheets alleged that he
had purchased standing oak timber from the Kyles, for which
he paid $14,500.  He charged that after he started to
harvest the timber, Bobby Kyle refused to let him continue. 
After a bench trial, the Chancellor entered judgment for
Sheets and awarded him $20,000 in damages.  The trial court
held the Kyles jointly and severally liable.  

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

THERESA STANBURY and spouse, JOHN H. STANBURY,
v.
BRIAN E. BACARDI and HOSPITAL CORPORATION OF AMERICA, d/b/a
CENTENNIAL MEDICAL CENTER,
and CONCURRING IN PART & DISSENTING IN PART

Court:TCA

Helen S. Rogers
JONES, ROGERS & FITZPATRICK
Nashville, Tennessee 
ATTORNEY FOR PLAINTIFFS/APPELLEES

Lela M. Hollabaugh
MANIER, HEROD, HOLLABAUGH & SMITH
Nashville, Tennessee 
ATTORNEY FOR DEFENDANTS/APPELLANTS
                        
First Paragraph:

The defendant, Brian E. Bacardi, has appealed from a jury
verdict and judgment awarding plaintiff, Theresa Stanbury,
$211,000 and her husband, John H. Stanbury, $10,000, as
damages for alleged malpractice in surgery and treatment of
Mrs. Stanbury.  The other captioned defendant, Hospital
Corporation of America, was dismissed by nonsuit and is not
involved in this appeal.

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

WEST POINTE PROPERTIES  
v. 
BILLY EUGENE FRYE and WADE M. BOSWELL, Trustee

Court:TCA

JAMES W. HODGES, JR., OF MEMPHIS FOR APPELLANT

WADE M. BOSWELL OF KNOXVILLE FOR APPELLEES
                       
First Paragraph:

West Pointe Properties, a partnership composed of two
separate corporations, in which Ronnie C. Frye was a
principal, sued Billy Eugene Frye and Wade M. Boswell,
Trustee, seeking a determination that the lien created by a
certain deed of trust on property which West Pointe now owns
had expired and that the lien created thereby was
unenforceable.  The complaint also sought a temporary
restraining order prohibiting the Defendants from proceeding
with a foreclosure sale.

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

JOANNE WHITE & DAVID WHITE, 
v. 
TENNESSEE FARMERS MUTUAL INSURANCE COMPANY,

Court:TCA

ANDREW HUME OWENS
Memphis, Tennessee
Attorney for Appellant

JERE FONES
THORP AND FONES
Memphis, Tennessee
Attorney for Appellees
                        
First Paragraph:

The primary issue in this case is whether the insured
complied with certain notice provisions of an automobile
liability insurance policy issued by defendant.  The trial
court held that there was sufficient compliance with the
policy and entered judgment against the defendant insurance
company.  For the reasons stated below, we affirm.

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

STATE OF TENNESSEE,v. DAVID M. ALLEN,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Brenda S. Bramlett          Charles W. Burson
Attorney at Law             Attorney General & Reporter 
724 North Main Street
P.O. Box 967                Michelle L. Lehmann
Shelbyville, TN 37160       Counsel for the State
 
                            William Michael McCown
                            District Attorney General

                            Gary M. Jones
                            Asst. Dist. Attorney

First Paragraph:

The appellant, David M. Allen, pled guilty to incest.  The
trial judge sentenced him to five years confinement and
denied his request for alternative sentencing.  Appellant
appeals, arguing that the trial court erred in denying him
alternative sentencing.  We affirm the trial judge.

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

MICHAEL A. FOURNIER,v. STATE OF TENNESSEE,  
and DISSENTING OPINION

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Andrew Jackson Dearing, III     Charles W. Burson
117 S. Main Street, Suite 101   Attorney General & Reporter 
Shelbyville, TN   37160
                                William David Bridgers
                                Assistant Attorney General

                                William Michael McCown
                                District Attorney General

                                Weakley E. Barnard
                                Asst. Dist. Attorney General

First Paragraph:

The petitioner, Michael A. Fournier, was tried in the
general sessions court for Marshall County on a warrant
charging him with driving under the influence (fifth
offense).  Following the proof, the judge took the case
under advisement.  Two weeks later, the judge announced that
he had found the petitioner guilty of DUI.  Petitioner's
counsel was shocked because he had had ex parte
communications with the judge and thought the judge was
going to find the petitioner not guilty.  

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

ANTHONY I. HAYES,   v. STATE OF TENNESSEE,  

Court:TCCA

FOR THE APPELLANT:      FOR THE APPELLEE:

ANTHONY HAYES, Pro-Se   CHARLES W. BURSON
NECC Box 5000           Attorney General and Reporter
Mountain City, TN 
                        EUGENE J. HONEA
                        Assistant Attorney General
 
                        JERRY N. ESTES
                        District Attorney General

                        STEVE WARD
                        Assistant District Attorney General

First Paragraph:

This is an appeal as of right from an order of the trial
court dismissing a petition for post-conviction relief
without an evidentiary hearing.  The trial court ruled that
all of the issues raised in the petition had either been
previously determined or had been waived, and furthermore
that consideration of the petition was barred by the statute
of limitations.  We affirm the order of the trial court.

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

STATE OF TENNESSEE, v. JANET LUTRY, 

Court:TCCA

For the Appellant:          For the Appellee:

Lu Ann Ballew               Charles W. Burson
Asst. Public Defender       Attorney General and Reporter
P. O. Box 416   
Dandridge, TN  37725        Christina S. Shevalier  
                            Assistant Attorney General                          
                        
                            Alfred C. Schmutzer, Jr.
                            District Attorney General

                            James Gass
                            Asst. District Attorney General
                        
First Paragraph:

The appellant, Janet Lutry, pursuant to Rule 9, Tenn. R.
App. P., appeals from the judgment of the Criminal Court of
Jefferson County, affirming the district attorney general's
denial of pre-trial diversion.  The appellant seeks to
divert the offense of forgery, a class E felony.  The sole
issue in this appeal is whether the trial court erred in
finding that the district attorney general did not abuse his
discretion in denying her application for pre-trial
diversion.

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

STATE OF TENNESSEE, v. RONALD LEBRON MADDEN,  

Court:TCCA

For the Appellant:          For the Appellee:

Charles G. Wright           Charles W. Burson
253 East 11th Street        Attorney General of Tennessee
Chattanooga, TN             and
                            Hunt S. Brown
                            Asst Attorney General of TN

                            William H. Cox, III
                            District Attorney General
                            and
                            H.C. Bright, Jr.
                            Assistant District AG
  
First Paragraph:

The defendant, Ronald Lebron Madden, was convicted in two
separate jury trials in the Criminal Court of Hamilton
County for conspiracy to sell cocaine, attempt to sell or
deliver cocaine, felonious possession of counterfeit
controlled substances, evading arrest, and robbery.  For the
conspiracy to sell cocaine and the attempt to sell or
deliver cocaine, Class C offenses, the defendant received
respective sentences of ten years as a Range III, persistent
offender. 

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

STATE OF TENNESSEE, v. TERRY TAYLOR, 

Court:TCCA

For the Appellant:          For the Appellee:

Peter M. Olson              Charles W. Burson
114 Franklin Street         Attorney General of Tennessee
Clarksville, TN  37040      and
                            Sharon S. Selby              
                            Asst Attorney General of TN

                            Dan Mitchum Alsobrooks 
                            District Attorney General   
                            and
                            Wally Kirby               
                            Asst District Attorney General            

First Paragraph:

The defendant, Terry Taylor, appeals from his conviction in
the Cheatham County Circuit Court, following a bench trial,
for statutory rape, a Class E felony.  He received a
sentence of one year as a Range I, standard offender to be
served in the Cheatham County Workhouse.  In this appeal as
of right he presents the following issues:

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

BRYAN SCOTT VEAL, v. STATE OF TENNESSEE,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

MARK E. STEPHENS            CHARLES W. BURSON
District Public Defender    Attorney General and Reporter
Sixth Judicial District
                            EUGENE J. HONEA
PAULA R. VOSS               Asst District Attorney General
Assistant Public Defender   
                            RANDALL E. NICHOLS
                            District Attorney General
                        
                            STEVE GARRETT
                            Asst District Attorney General

First Paragraph:

This is an appeal as of right from an order of the trial
court dismissing a petition for post-conviction relief
without an evidentiary hearing.  The trial court ruled that
consideration of the petition was barred by the statute of
limitations.  We affirm the order of the trial court.

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

STATE OF TENNESSEE, v. RAYMOND THOMAS,  

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

MICHAEL R. JONES            CHARLES W. BURSON
Public Defender             Attorney General and Reporter
                
FRED W. LOVE                GEORGE LINEBAUGH
Assistant Public Defender   Assistant District Attorney

                            JOHN CARNEY
                            District Attorney General

                            DENT MORRISS
                            Assistant District Attorney General
 
First Paragraph:

The Defendant appeals as of right from the judgment of the
trial court which found him to be in violation of the terms
of his probation.  The Defendant argues that the trial judge
failed to exercise conscientious judgment and abused his
discretion.  We disagree and affirm the judgment of the
trial court.

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

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