TBALink Opinion-Flash

August 1, 1996 -- Volume #2 -- Number #70

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:
00-New Opinons From TSC
00-New Opinons From TSC-Rules
02-New Opinons From TSC-Workers Comp Panel
08-New Opinons From TCA
05-New Opinons From TCCA

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George Dean
TBALink Chief Editor


JOYCE JONES,                
v.
NEW YORK UNDERWRITERS INSURANCE COMPANY,            

Court:TSC - Workers Comp Panel

For the Appellant:              For the Appellee:

Robert D. Van de Vuurst         William S. Todd
Steven H. Trent                 Todd & Dossett, P. C.
Baker, Donelson, Bearman        134 W. Center Street
& Caldwell                      Kingsport, TN 37660
207 Mockingbird Lane
P. O. Box 3038
Johnson City, TN 37602
                          
Judge: John K. Byers, Senior Judge

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann.  50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. Plaintiff
alleged injury to her back and neck at work.  The trial judge awarded
her 15 percent permanent partial disability to the body as a whole. We
affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TSC_WCP/JONESJOY.OPN.WP6
Opinion-Flash

LARRY H. MULL, v. TRANSPORT SOUTH, INC.,

Court:TSC - Workers Comp Panel

For the Appellant:              For the Appellee:

Glenn R. Copeland               C. Douglas Dooley
Copeland & Whittenburg          D. Scott Bennett
3505 Brainerd Road              Leitner, Warner, Moffitt, Williams
Chattanooga, TN 37411           Dooley & Napolitan, PLLC
                                Third Floor, Pioneer Building
                                Chattanooga, TN 37402
                         
Judge:

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann.  50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. The
employee/plaintiff injured his right arm while working as a truck
driver for defendant. The trial judge awarded plaintiff 12 percent
disability to the right arm. We find that the evidence preponderates
against an award of 12 percent and in favor of an award of 20 percent
permanent partial disability to the right arm and we affirm the
judgment of the trial court as so modified.

URL:http://www.tba.org/tba_files/TSC_WCP/MULLLH.OPN.WP6
Opinion-Flash

STEVE STAFFORD DENNISON, v. MARILYN EDWARDS DENNISON,

Court:TCA

LARRY HAYES, JR.
Boult, Cummings, Conners & Berry
414 Union Street, Suite 1600
P. O. Box 198062
Nashville, Tennessee  37219
ATTORNEY FOR PLAINTIFF/APPELLEE

MACLIN P. DAVIS, JR.
DARWIN A. HINDMAN, III
1700 Nashville City Center
511 Union Street
Nashville, Tennessee  37219
ATTORNEYS FOR DEFENDANT/APPELLANT

Judge:SAMUEL L. LEWIS, JUDGE

First Paragraph:

This is an appeal by defendant, Marilyn Edwards Dennison, from the
trial court's Final Decree of Divorce as amended by the court's order
of 20 July 1995.  The pertinent facts are as follows.
The parties were married in June 1971.  Shortly thereafter, they moved
to Louisville, Kentucky so that plaintiff, Steve Stafford Dennison,
could pursue a job opportunity with the Coca Cola Company.  In June
1973, the company transferred plaintiff to Nashville where the parties
lived for three years.  In 1976, the parties moved again after
plaintiff took an advertising job in Kansas City, Missouri.  In 1981,
plaintiff took a job in Chicago, Illinois and the parties moved to
Chicago.  

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

HELEN E. KING,  
v.
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE,            
w/CONCURRING OPINION

Court:TCA

DAN R. ALEXANDER
2016 8th Avenue, South
Nashville, Tennessee 37204
ATTORNEY FOR PLAINTIFF/APPELLANT

THE DEPARTMENT OF LAW OF THE
METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY

JAMES L. MURPHY, III
Director of Law

WM. MICHAEL SAFLEY,
Metropolitan Attorney
204 Metropolitan Courthouse
Nashville, Tennessee 37201
FOR DEFENDANT/APPELLEE
                         
Judge: HENRY F. TODD

First Paragraph:

Plaintiff, Helen E. King, has appealed from an unsatisfactory non-jury
judgment in her suit against the captioned municipality for wrongful
discharge. The complaint prayed for judgment for back pay and
benefits and reinstatement.

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

DAWN PERKERSON, v. MICHAEL FREDERICK PERKERSON, 

Court:TCA

MIKE W. BINKLEY
150 Third Avenue North
Suite 300
Nashville, Tennessee 37201
Attorney for Petitioner/Appellee

WHITNEY KEMPER
KEMPER & MCLEMORE, P.L.C.
144 Second Avenue North
Suite 333
Nashville, Tennessee 37201
Attorney for Respondent/Appellant
                        
Judge: BEN H. CANTRELL, JUDGE

First Paragraph:

The appellant, Michael Perkerson, was convicted by the Circuit Court
of Davidson County on four counts of criminal contempt and sentenced
to a total of forty days in jail.  On appeal he asserts that he did
not receive the procedural safeguards required in a criminal
proceeding, that he was denied a jury trial, and that the trial judge
applied the wrong standard of proof for a finding of guilt.  The
appellee asserts that this is a frivolous appeal.  We affirm the trial
court.  We also find that this is not a frivolous appeal.

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

SHEILA PROFFITT, v. PRISON HEALTH SERVICES, INC.,
w/CONCURRING OPINION

Court:TCA

RONALD W. McNUTT
Williams and Dinkins
203 Second Avenue, North
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFF/APPELLANT

CYRUS L. BOOKER
Booker & Associates
First American Center, Suite 1280
315 Deaderick Street
Nashville, Tennessee 37238-1280
ATTORNEY FOR DEFENDANT/APPELLEE
                         
Judge: HENRY F. TODD

First Paragraph:

The captioned Plaintiff has appealed from a summary judgment
dismissing her suit for failure of the Defendant to provide needed
treatment to Plaintiff.  

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

MARY SANDERS, v. STEVE SANDERS and JANET SANDERS,

Court:TCA

JOHN AARON HOLT
Jacobs & Holt
311 White Bridge Road
Nashville, Tennessee  37209
ATTORNEY FOR PLAINTIFF/APPELLEE

WHITNEY KEMPER
Kemper & McLemore
144 Second Avenue North
Suite 333
Nashville, Tennessee  37201
ATTORNEY FOR DEFENDANTS/APPELLANTS
                        
Judge: SAMUEL L. LEWIS, JUDGE

First Paragraph:

This is an appeal by defendants/appellants, Steve and Janet Sanders,
from the trial court's judgment which found they had wrongfully
executed on a judgment against plaintiff/appellee, Mary Sanders.  The
court awarded appellee a judgment against appellants for compensatory
damages of $700.87, attorney's fee of $3,750.00, and punitive damages
of $5,000.00.

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

SHELCO CORPORATION,         
v.
RANDALL BARKER and CARLENA L. BARKER,
v.
CAMPBELL COUNTY ROAD DEPARTMENT by its Road Supervisor, J.T. LEACH and
ARNSTON SHARP,

Court:TCA

FRANK DOSSETT, LaFollette, for Appellee/Complainant/Counter Defendant.

KENNETH R. KRUSHENSKI, LaFollette, for Appellants/Defendants/
Counter-Plaintiffs and Third-Party Plaintiffs.
                         
Judge: Franks. J.

First Paragraph:

This action was precipitated when defendants blocked plaintiff's means
of ingress and egress to their property across defendants' land.  The
issue for the Trial Court was whether the roadway was a public road,
and the Trial Judge granted plaintiff's summary judgment, stating:
The right-of-way in question is a public road and there is no evidence
of an intent to abandon the same by Campbell County, Tennessee, and
there is no controversy of material facts in the record.

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

STATE OF TENNESSEE, v. RICKY LYNN GOINS,

Court:TCCA

For the Appellant:              For the Appellee

Stephen M. Wallace              Charles W. Burson
District Public Defender        Attorney General & Reporter
P.O. Box 839                    450 James Robertson Parkway
Blountville, TN 37617           Nashville, TN 37243-0493

Richard A. Tate                 Hunt S. Brown           
Asst. Public Defender           Asst. Attorney General
P.O. Box 839                    450 James Robertson Parkway
Blountville, TN 37617           Nashville, TN 37243-0493

                                Carl K. Kirkpatrick
                                District Attorney General

                                Phyllis Miller
                                Asst. District Attorney General
                                P.O. Box 526
                                Blountville, TN 37617

                                David Glenn Overbay
                                Asst. District Attorney General     
                                P.O. Box 526
                                Blountville, TN 37617           
                         
Judge: William M. Barker, Judge

First Paragraph:

The appellant, Ricky Lynn Goins, was convicted of the first degree
murder of Kenneth Ray Roberts and the attempted first degree murder of
Savonna Sanders.  He was sentenced to life imprisonment for the former
conviction and to twenty years in the Department of Correction for the
latter conviction.  The sentences are to be served concurrently.

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

STATE OF TENNESSEE, v. JAMES PERRY HYDE,

Court:TCCA

For the Appellant:          For the Appellee:

Greg Eichelman              Charles W. Burson
Public Defender             Attorney General and Reporter
    
Russell Mattocks            Kimbra R. Spann
Asst. Public Defender       Assistant Attorney General               
1609 College Park Drive     Criminal Justice Division
Morristown, TN              450 James Robertson Parkway
                            Nashville, TN 37243-0493                
                        
                            C. Berkeley Bell
                            District Attorney General

                            John Dugger
                            Asst. District Attorney General
                            510 Allison Street
                            Morristown, Tn  37814
 
Judge: David G. Hayes

First Paragraph:

The appellant, James Perry Hyde, was convicted by a Hamblen County
jury of rape of a child.  Tenn. Code Ann.  39-13-522 (1994 Supp.). 
The jury imposed a fine of fifty thousand dollars, and the trial court
sentenced the appellant to twenty-five years incarceration in the
Tennessee Department of Correction.  On appeal, the appellant raises
the following issues: (1)   whether the prosecutor engaged in
misconduct warranting a mistrial and/or reversal of the appellants
conviction; (2) whether the trial court should have suppressed the
appellants statements to investigators; (3) whether the trial
court should have suppressed the victims statements to examining
physicians; (4) whether the evidence adduced at trial is sufficient
to sustain the appellants conviction;

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

STATE OF TENNESSEE,  v. DOUGLAS BRIAN IRWIN,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Gerald C. Russell           Charles W. Burson
Attorney at Law             Attorney General & Reporter
125 East Broadway Avenue    450 James Robertson Parkway
Maryville, TN 37084         Nashville, TN 37243-0497

                            Hunt S. Brown
                            Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            Michael L. Flynn
                            District Attorney General
                            363 Court Street
                            Maryville, TN 37804-5906

                            Edward P. Bailey, Jr.
                            Assistant District Attorney General
                            363 Court Street
                            Maryville, TN 37804-5906                          

Judge: Joe B. Jones, Presiding Judge

First Paragraph:

The appellant, Douglas Brian Irwin, entered a plea of guilty to the
offense of contributing to the delinquency of a minor, a Class A
misdemeanor.  The trial court sentenced the appellant to serve eleven
months and twenty-nine days in the Blount County Jail.  The sentence
was suspended, and the appellant was granted immediate probation.  The
appellant, with the consent of the trial court and the assistant
district attorney general, reserved the following certified question:
Would the act of this sexual intercourse constitute the offense of
contributing to the delinquency of a minor under this indictment
number C-7302?  The parties agree that this issue is dispositive of
the prosecution in this case. 

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

STATE OF TENNESSEE, v. JONATHAN MALADY,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

MR. ROBERT M. BRANNON, JR.      CHARLES W. BURSON
Attorney at Law                 Attorney General and Reporter
295 Washington St., Suite 3
Memphis, TN 38103-1911          HUNT S. BROWN
                                Attorney Generals Office
                                450 James Robertson Parkway
                                Nashville, TN 37243

                                JOHN W. PIEROTTI
                                District Attorney General

                                CHARLES BELL
                                Assistant District Attorney
                                Criminal Justice Complex
                                3rd Floor
                                Memphis, TN 38103
                         
Judge: LYNN W. BROWN, SPECIAL JUDGE

First Paragraph:

The appellant, Jonathan D. Malady, appeals from an order of the trial
court declaring him to be an habitual offender pursuant to the Motor
Vehicle Habitual Offender Act, T.C.A. 55-10-601, et. seq.  We affirm
the judgment of the trial court and remand for the proper entry of
judgment.

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

GEORGE A. RUFF, v. STATE OF TENNESSEE,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Chris Ralls                 Charles W. Burson
Attorney at Law             Attorney General & Reporter
343 High Street             450 James Robertson Parkway
Maryville, TN 37804         Nashville, TN 37243-0497

                            Eugene J. Honea
                            Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            Michael L. Flynn
                            District Attorney General
                            363 Court Street
                            Maryville, TN 37804-5906

                            Kirk E. Andrews
                            Assistant District Attorney General
                            363 Court Street
                            Maryville, TN 37804-5906
                          
Judge: Joe B. Jones, Presiding Judge

First Paragraph:

The appellant, George A. Ruff, appeals as of right from a judgment of
the trial court denying his petition for post-conviction relief.  The
trial court found that the appellant was denied his right to file an
application for permission to appeal in the Supreme Court, but it did
not have jurisdiction to grant the relief sought.  The appellant
contends that this Court should vacate its prior judgment and
reinstate it so that he can pursue an application for permission to
appeal. This Court has made a thorough review of the record, the
briefs of the parties, and the authorities governing the issue
presented for review.  It is the opinion of this Court that the relief
sought by the appellant should be granted.  

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

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