TBALink Opinion-Flash

May 16, 1996 -- Volume #2 -- Number #47

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.

This Issue IN THIS ORDER:
7 New Opinons From TSC
- New Opinons From TSC-Rules
- New Opinons From TSC-Workers Comp Panel
1 New Opinons From TCA
2 New Opinons From TCCA

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Jim Moore
TBALink Co-Chief Editor

STATE OF TENNESSEE, v. DAREL G. BOLIN,
and DISSENTING OPINION

Court:TSC

For the Appellant:              For the Appellee:                                               
Joe L. Finley, Jr.              Charles W. Burson
Assistant Public Defender       Attorney General & Reporter
Cookeville, Tennessee
                                Michael E. Moore
                                Solicitor General

                                Gordon W. Smith
                                Assistant Solicitor General
                                Nashville, Tennessee
    
                                William E. Gibson                                       
                                District Attorney General
                                Cookeville, Tennessee

                                David A. Patterson
                                Asst District Attorney Gen.
                                Cookeville, Tennessee                       

First Paragraph:

The defendant, Darel G. Bolin, appeals from the Court of
Criminal Appeals' affirmance of his conviction for the
aggravated sexual battery of a nine year old girl.  This
case presents two issues for our determination: (1) whether
the admission at trial of a social worker's testimony, which
consisted of a general statement that young victims of
repeated sexual abuse have trouble remembering when the
specific events of abuse occurred, constitutes reversible
error; and (2) whether the verdict was an impermissible
"patchwork" because the evidence did not support the jury's
finding of aggravated sexual battery. For the reasons set
forth below, we conclude that no reversible error occurred,
and therefore, we affirm the judgment of the Court of
Criminal Appeals.

Judge: FRANK F. DROWOTA III - JUSTICE

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

MICHAEL D. BRADSHAW,v. OLD REPUBLIC INSURANCE COMPANY,                  

Court:TSC

For Plaintiff/Appellant:        For Defendant/Appellee:

Donald R. Coffey                Steven B. Johnson
Knoxville, TN                   Knoxville, TN
                         
First Paragraph:

In this cause, we must determine whether a Tennessee
employee who pursued benefits in the foreign state in which
the injury occurred is barred from pursuing benefits in
Tennessee for the same injury.  The trial court determined
that the doctrine of election of remedies barred the claim. 
We agree with the trial courts ruling.

Judge: ADOLPHO A. BIRCH, JR., Justice

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

KAREN HELTON, Surviving Widow of WILLIAM T. HELTON, 
v. 
KNOX COUNTY, TENNESSEE, 

Court:TSC

For Appellant:                      For Appellee:

John E. Owings, Chief Deputy        Tricia I. Dennis
Knox County Law Director            Alley & Dennis
Knoxville, TN 37902                 Chattanooga, TN 37443
                   
First Paragraph:

William T. Helton was killed when the vehicle he was driving
went off the Coward Mill Bridge in Knox County.  His widow
brought suit under the Tennessee Governmental Tort Liability
Act (GTLA), on the theory that the county was liable for the
death of her husband and damage to his automobile.  She
relied on Tenn. Code Ann. 29-20-203, which removes
governmental immunity "for any injury caused by a defective,
unsafe, or dangerous condition of any street, alley,
sidewalk or highway, owned and controlled by such
governmental entity."  She alleged that the bridge was
unsafe because there were no guardrails on it.  After a
bench trial, the court found that the physical aspects of
the roadway approaching the bridge and the bridge itself
were not "defective, unsafe, or dangerous" and dismissed the
case.

Judge: ADOLPHO A. BIRCH, JR., Justice

URL:http://www.tba.org/tba_files/TSC/HELTONK.OP.WP6
Opinion-Flash

STATE OF TENNESSEE v. DONALD C. MCCARY
and DISSENTING OPINION

Court:TSC

For Appellant:              For Appellee:

Bruce H. Guthrie, II        Charles w. Burson
Chattanooga, TN             Attorney General and Reporter

Daniel G. Davis             Amy L. Tarkington
Beverly Hills, CA           Assistant Attorney General
                            Nashville, TN

                            Stanley J. Lanzo
                            Asst  District Attorney General
                            Chattanooga, TN
                       
First Paragraph:

The appellant, Donald C. McCary, was convicted of thirteen
sex offenses:  two counts of aggravated sexual battery,
three counts of rape, six counts of statutory rape, and two
counts of sexual battery.  The trial court imposed the
maximum sentence for each offense and ordered each to be
served consecutively--an effective sentence of seventy-two
years.  The Court of Criminal Appeals affirmed the trial
court's judgments.  At issue is whether the trial court
correctly admitted into evidence testimony concerning
uncharged and unindicted sexual offenses committed by McCary
several years prior to the date of the alleged commission of
the offenses on trial.

Judge: ADOLPHO A. BIRCH, JR., Justice

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

VALENCIA SPENCER, as Natural Parent and Legal Guardian of
Natasha Spencer, a Minor, and TERESA PLUMMER, as Natural
Parent and Legal Guardian of Cornay Cordale Plummer, a
Minor,
v.
TOWNSON MOVING & STORAGE, INC.      

Court:TSC

For Plaintiffs-Appellees:       For Defendant Appellant:

O. Michael Carter               Charles W. Dooley
Terry L. McGhehey               Sean Antone Hunt
Chattanooga, TN                 Chattanooga, TN
                       
First Paragraph:

In this workers' compensation appeal, we consider the trial
courts interpretation of the death benefit provisions of
the Workers' Compensation Act in calculating benefits and
determine whether the trial court erred in ordering a
partial commutation of attorneys' fees.  The standard of
review by this Court in workers compensation cases is de
novo upon the record, accompanied by a presumption of the
correctness of the factual findings, unless the
preponderance of the evidence is otherwise.  Tenn. Code Ann.
50-6-225(e)(Supp. 1995); Fink v. Caudle, 856 S.W.2d 952,
958 (Tenn. 1993).  This case, however, involves questions of
law.  Thus, we are not bound by the preponderance of the
evidence standard, and we review questions of law de novo
without limitation.  Ridings v. Ralph M. Parsons Co., 914
S.W.2d 79, 80 (Tenn. 1996); Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

Judge: ADOLPHO A. BIRCH, JR., Justice

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

CARTER COUNTY BOARD OF EDUCATION
v.
CARTER COUNTY EDUCATION ASSOCIATION and CHELE DUGGER

Court:TCA

CHARLES HAMPTON WHITE, RICHARD L. COLBERT, and REBECCA WELLS
DAMAREE, WITH CORNELIUS & COLLINS, OF NASHVILLE, TENNESSEE,
FOR APPELLANTS.

JOHN K. BANKS and THOMAS R. BANKS, WITH BANKS AND BANKS, OF
ELIZABETHTON, TENNESSEE, FOR APPELLEE
                       
First Paragraph:

The pivotal issue on this appeal is whether a county school
board which has entered into a collective bargaining
agreement with the teachers' union has the non-delegable
right to employ the principal of a school, or is the action
of the school board subject to binding arbitration at the
behest of the union and a member seeking the position.  We
hold it is a non-delegable duty of the board not subject to
binding arbitration, and affirm the trial court.

Judge: Clifford E. Sanders, Sp.J.

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

STATE OF TENNESSEE, v. ROBERT BOSTON,   

Court:TCCA

For the Appellant:              For the Appellee:

Leslie S. Hale                  Charles W. Burson
Asst. Public Defender           Attorney General / Reporter
Post Office Box 839 
Blountville, TN  37617          Elizabeth T. Ryan
                                Assistant Attorney General                  
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                

                                Frank A. Harvey
                                District AG Pro Tem
                                Kingston, TN  37763
                    
First Paragraph:

The appellant, Robert Boston, appeals the sentencing
decision of the Sullivan County Criminal Court, contending
that the trial court should have granted him full probation
or an alternative sentence pursuant to the Tennessee
Community Corrections Act of 1985.

Judge: DAVID G. HAYES, Judge    

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

STATE OF TENNESSEE, v. JEFF BEASLEY,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

PHILLIP REED                CHARLES W. BURSON
250 E. Broadway, # 106      Attorney General and Reporter
Maryville, TN 37804
                            ELIZABETH T. RYAN
                            Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            MIKE FLYNN
                            District Attorney General

                            PHILIP MORTON
                            Asst District Attorney General
                            363 Court Street
                            Maryville, TN 37804
                         
First Paragraph:

This is an appeal as of right pursuant to Rule 3 of the
Tennessee Rules of Appellate Procedure.  The Defendant
entered pleas of guilty to thirteen counts of aggravated
burglary, one count of attempted aggravated burglary, ten
counts of theft of property valued at more than one thousand
dollars, and three counts of theft of property valued at
more than five hundred dollars.  In exchange for his guilty
pleas to these various felonies, the Defendant received an
agreed effective sentence of eight years as a Range I
standard offender.  The manner of service of the sentences
was left to the discretion of the trial judge.  The trial
court denied the Defendants request for a sentence
alternative to incarceration and ordered the sentences
served with the Department of Correction.  The Defendant
appeals from the refusal of the trial court to allow his
sentence to be served either on probation or in the
community corrections program.  We affirm the judgment of
the trial court.

Judge: DAVID H. WELLES, JUDGE

URL:http://www.tba.org/tba_files/TCCA/CARTERED.OPN.WP6

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