TBALink Opinion-Flash

July 29, 1996 -- Volume #2 -- Number #68

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.

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04-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
05-New Opinons From TCA
00-New Opinons From TCCA

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STATE OF TENNESSEE,  v. DERRON BURROUGHS,

Court:TSC

For Appellant:                  For Appellee:

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

R. Scott Carpenter              Darian B. Taylor
Assistant Public Defender       Assistant Attorney General
Knoxville, TN                   Nashville, TN

                                Randall E. Nichols
                                District Attorney General

                                Tony Stansberry
                                Assistant District Attorney General         
                                Knoxville, TN

Judge: BIRCH, C.J.

First Paragraph:

We accepted this case in order to discuss the criteria for determining
when the action of a private individual in conducting a warrantless
search of a dormitory room qualifies the individual as a state agent
and the conduct as state action.  In this case, we have concluded that
the individual was not a state agent.

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

KENNETH R. JOHNSON and RONDA JOHNSON,               
v.
WILLIAM E. HARDIN, M.D. and FAMILY MEDICINE ASSOCIATES,

Court:TSC

For the Appellants:     For the Appellees:

Steve North             Robert L. Trentham
Nashville, TN           Mark Tyler Seitz
                        TRABUE, STURDIVANT & DeWITT
Daniel D. Warlick       Nashville, TN               
WARLICK & TODD          
Nashville, TN   
                      
Judge: WHITE, J.

First Paragraph:

In this case plaintiffs contend that the trial courts  unauthorized
"dynamite charge" to the deadlocked jury requires that the judgment be
set aside and a new trial granted.  Defendants, however, urge that we
should sustain the Court of Appeals dismissal of this appeal based on
plaintiffs failure to comply with Rule 24, Tennessee Rules of
Appellate Procedure.  For the reasons discussed below, we conclude
that the intermediate courts dismissal of the appeal was error and
that the case must be remanded for a new trial because the trial
courts instruction to the deadlocked jury violated Tennessee law.

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

NANCYE L. LUCIUS and RICHARD S. BURNS,v. CITY OF MEMPHIS,               

Court:TSC

For Appellant Lucius:           For Appellee:

John J. Heflin, III             Monice Moore Hagler
BOURLAND, HELFIN, ALVAREZ,      L. Kenneth McCown, Jr.
HOLLEY & MINOR                  Memphis, TN
Memphis, TN

For Appellant Burns:    

Melanie M. Shuttleworth
SHUTTLEWORTH & WILKINSON
Memphis, TN
                         
Judge: WHITE, J.

First Paragraph:

In this suit for personal injury and property damage, the Court must
decide whether municipalities are liable for post-judgment interest on
judgments rendered under the Governmental Tort Liability Act
(hereafter GTLA), Tenn. Code Ann.  29-20-101 et seq. (1980 Repl. &
1995 Supp.).  For the reasons explained below, we hold that judgments
obtained pursuant to the GTLA accrue post-judgment interest.  The
judgment of the Court of Appeals holding to the contrary is therefore
reversed and that of the trial court reinstated.

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

FREDERICK TURNER RAY, a Minor by Next Friend and Natural Mother, ERMA
L. HOLMAN,
v.
BIC CORPORATION,        

Court:TSC

For Plaintiff/Petitioner:       For Defendant/Respondent:

L. Anthony Deal                 J. Brook Lathram      
Paul Berry Cooper, III          Susan M. Clark
Memphis, TN                     Memphis, TN  
                        
Judge: WHITE, J.

First Paragraph:

In this Rule 23 case we are called upon to address whether our
products liability statute, codified at Tennessee Code Annotated
Section 29-28-101  -108, provides for a risk-utility test in addition
to the consumer expectation test for determining whether a product is
unreasonably dangerous.  For the reasons set forth below, we hold that
our present statute provides for two tests: the consumer expectation
test and the prudent manufacturer test.  The latter requires
risk-utility balancing in its application.

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

BEAMAN BOTTLING COMPANY,    
v.
JOE B. HUDDLESTON, as Commissioner of Revenue for the State of
Tennessee,

Court:TCA

JAMES W. CAMERON, III
C. MARK PICKRELL
Harwell Howard Hyne
Gabbert & Manner, P.C.
1800 First American Center
315 Deaderick Street
Nashville, Tennessee  37238
ATTORNEYS FOR PLAINTIFF/APPELLANT

CHARLES W. BURSON
Attorney General and Reporter

JONATHAN D. SHELL
Assistant Attorney General
Attorney General's Office
Tax Division
404 James Robertson Parkway
Suite 2121
Nashville, Tennessee  37243-0489
ATTORNEYS FOR DEFENDANT/APPELLEE
                      
Judge: SAMUEL L. LEWIS, JUDGE

First Paragraph:

Plaintiff, Beaman Bottling Company (Beaman), appeals the decision of
the chancery court granting summary judgment in favor of defendant,
the Commissioner of Revenue for the State of Tennessee
(Commissioner).  On appeal, Beaman claims that the court erred in
finding that Beaman was not exempt from the tax imposed by Tennessee
Code Annotated section 67-4-402(b), the privilege tax on bottlers and
manufactures of soft drinks.  The facts out of which this matter arose
are as follows.

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

HOOVER, INC.,   
v. 
RUTHERFORD COUNTY, A Political Subdivision of the State of Tennessee;
ED ELAM County Court Clerk of Rutherford County, Tennessee; and
CHARLES W. BURSON, Attorney General of the State of Tennessee

Court:TCA

GRANDVILLE S. R. BOULDIN, JR.
122 North Church Street
Murfreesboro, Tennessee 37130
ATTORNEY FOR PLAINTIFF/APPELLANT

JEFF REED
16 Public Square North
P.O. Box 884
Murfreesboro, Tennessee 37133-0884
ATTORNEY FOR  DEFENDANT/APPELLEE
                        
Judge:HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

First Paragraph:

The Plaintiff, Hoover, Inc., has appealed from a summary judgment
dismissing its suit against the captioned defendants seeking refund of
mineral severance taxes paid under protest. On appeal, the only issue
presented by Plaintiff is:
Whether Chapter 111, Private Acts of 1983, authorizing the collection
of severance tax by Rutherford County, was unconstitutional.

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

JUDY PARRISH,
v. 
HOSPITAL CORPORATION OF AMERICA, d/b/a CENTENNIAL MEDICAL CENTERS   

Court:TCA

C. J. Gideon, Jr.
GIDEON & WISEMAN
414 Union Street 
Suite 1900, NationsBank Plaza
Nashville, TN 37219
ATTORNEY FOR PLAINTIFF/APPELLEE

Sonya W. Henderson
218 W. Main Street
Suite One
Murfreesboro, Tennessee 37130
ATTORNEY FOR DEFENDANT/APPELLANT
                       
Judge: HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

First Paragraph:

The captioned Plaintiff has appealed from a summary judgment
dismissing her suit against the captioned Defendant for the wrongful
death of Whitney Parrish by suicide while a patient in Defendants
hospital.

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

THOMAS S. TOWE and AMBASSADOR REALTY & INVESTMENT CORPORATION,      
v. 
JEFFREY S. BROCK,           

Court:TCA

HOLLINS, WAGSTER & YARBROUGH, P.C.
James L. Weatherly, Jr. #0954
2210 SunTrust Center, 22nd Floor
424 Church Street
Nashville, Tennessee  37219
ATTORNEY FOR PLAINTIFFS/APPELLANTS

WEED, HUBBARD, BERRY &  DOUGHTY
Douglas Berry #6927
Suite 2900
Third National Financial Center
Nashville, Tennessee  37219
ATTORNEYS FOR DEFENDANT/APPELLEE
                        
Judge: HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

First Paragraph:

The captioned Plaintiffs have appealed from the judgment of the Trial
Court dismissing their suit against the captioned defendant for breach
of contract on grounds of res judicata (decided in a previous action).

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

JOHN RUSSELL WALKER and SHARON DENISON WALKER,  
v.
VLD, INC., d/b/a McDONALD'S, B.F. MYERS FURNITURE and APPLIANCE
COMPANY, INC., SK PRODUCTS CORP., GL FURNITURE (PAHANG) SDN. BHD.,
GENERAL LUMBER FURNITURE SDN. BHN., McDONALD'S CORPORATION, EM-CAR
ENTERPRISES AND LANG FURNITURE (PAHANG) SDN. BHD.,

Court:TCA

RICHARD BARANYI
P. O. Box 2183
Hendersonville, Tennessee  37075
ATTORNEY FOR PLAINTIFFS/APPELLEES

KATHERINE A. BROWN
Baker, Donelson, Bearman
  & Caldwell
1700 Nashville City Center
511 Union Street
Nashville, Tennessee  37219
ATTORNEY FOR DEFENDANTS/APPELLANTS
                       
Judge: SAMUEL L. LEWIS, JUDGE

First Paragraph:

We granted permission to appeal pursuant to Tennessee Rule of
Appellate Procedure 9 to determine whether the trial court correctly
held that defendants/appellants, GL Furniture (Pahang) Sdn. Bhd. ("GL
Furniture") and General Lumber Furniture Sdn. Bhn. ("GLFSB"), were
properly served with process and were properly before the trial court.
 The facts out of which this case arose are as follows.

URL:http://www.tba.org/tba_files/TCA/WALKERJO.OPN.WP6

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