TBALink Opinion-Flash

August 22, 1996 -- Volume #2 -- Number #77

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
00-New Opinons From TSC-Workers Comp Panel
16-New Opinons From TCA
03-New Opinons From TCCA

There are three ways to get the full opinion from the Web: (TBALink members only)

  • Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a plain text version of the opinion.

  • *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WP 6.0 document. version of the opinion.

  • Click the URL Link at end of each Opinion paragraph below. This option will allow you to download the original WP 6.0 document.

George Dean
TBALink Chief Editor


SUSAN LEE BARTLEY  v. WILLIAM EDGAR BARTLEY, III 

Court:TCA

DAVID M. SIBLEY, OF CHATTANOOGA, TN, FOR APPELLANT 

R. DEE HOBBS, OF CHATTANOOGA, TN, FOR APPELLEE

Judge: Sanders

First Paragraph:

The Plaintiff has appealed from the order of the division of marital
property in a divorce proceeding where a divorce was granted to the
parties pursuant to TCA  36-4-129.

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

ESTATE OF WALTER BATES, Candy Green, Personal Representative,
v.
EARL WILLIAMS and wife, GAIL WILLIAMS,              

Court:TCA

B. PRINCE MILLER, JR., Cleveland, for Plaintiff-Appellee.

JOE G. BAGWELL, Knoxville, for Defendants-Appellants.
                          
Judge: Franks. J.

First Paragraph:

This dispute arose over the use of a roadway separating the parties
properties.  The Chancellor determined that defendants had
reconstructed the roadway and rendered impassable the remaining
portion of the old roadway.  The Chancellor was of the opinion that
there is a common easement between the parties and concluded: since
the defendants have made the improvements, it is not only fair but
pertinent that the plaintiffs have the right of ingress and egress
over the road, but they will be required to contribute $1,500.00 to
the defendants for the work the latter people did in making such
repairs. 

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

FRANCES TREW CAMPBELL
v.
MORTIMER LAWRENCE TREW, MORTIMER E. TREW, and ONETA C. TREW

Court:TCA

W. LEE MADDUX and RONALD D. GORSLINE OF CHATTANOOGA FOR APPELLANT

WILLIAM P. BIDDLE, III, and JEFFREY L. CUNNINGHAM OF ATHENS FOR
APPELLEES
                        
Judge:  Goddard, P.J.

First Paragraph:

This is a family dispute wherein Frances Trew Campbell sues her
brother, Mortimer Lawrence Trew, and her parents, Mortimer E. Trew and
Oneta C. Trew, seeking to recover an interest in certain real and
personal property, as well as an accounting from them as to the rents
and profits from the real property and a general store in which she
claims to be a partner.

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

CSJ TRAVEL, INC., v. STEVEN PAYNE,  

Court:TCA

L. Lee Kull, Maryville, For the Appellant

David T. Black, Maryville, For the Appellee
                        
Judge: INMAN

First Paragraph:

These parties entered into an employment agreement on August 30, 1993
for an indefinite term.  Compensation was to be fixed by the Board of
Directors; the defendant agreed to maintain the confidentiality of the
employers business records and, for a period of one year after the
date of termination of employment and within 250 miles from Maryville,
the defendant agreed that he will not, directly or indirectly own,
manage, operate control, be employed by, participate in, or be
connected in any manner with the ownership, management, operation or
control of any travel agency, firm, company or other entity that in
any manner solicits business from any of the accounts, clients or
customers that are the accounts, clients or customers of Employer or
the accounts that Employee, during the term of his employment
hereunder, in any manner services, handles, or produces or that are
assigned to Employee, or that in any way, directly or indirectly,
competes with Employer.

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

LAURA DAVIS v. JOHNNY DOUGLAS DAVIS 

Court:TCA

MINDY NORTON SEALS OF MORRISTOWN and P. RICHARD TALLEY OF DANDRIDGE AT
TRIAL; SARAH Y. SHEPPEARD OF KNOXVILLE ON APPEAL FOR LAURA DAVIS

PAUL G. WHETSTONE OF MORRISTOWN FOR JOHNNY DOUGLAS DAVIS
                          
Judge: Goddard, P.J.

First Paragraph:

Laura Davis appeals that portion of a divorce decree which awarded
custody of Kristin (minor child of the parties, who was just over
three-and-a-half years old at the time of the initial hearing below)
to her father, Johnny Douglas Davis.  She also contends the Trial
Court was in error "in failing to delete from the final judgment those
provisions added by husband's counsel but not ordered by the Judge." 

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

JOHN DAVID FENLEY,  v. LINDA DIANE McFALL FENLEY,

Court:TCA

JUDITH FAIN, Erwin, Attorney for Appellant

MARK D. SLAGLE, Johnson City, Attorney for Appellee
                         
Judge: Susano, J.

First Paragraph:

This is a post-divorce case.  John David Fenley (Father), a
psychiatrist, filed a petition for change of custody of the parties
child, Caitlin Ann Fenley (DOB: June 8, 1990).  At the time of the
divorce, the childs custody, by agreement of the parties and approval
of the trial court, had been placed with the childs mother, the
respondent Linda Diane McFall Fenley (Mother).  At the close of
Fathers proof, the trial court, acting sua sponte, dismissed the
petition.  It then went further and modified the visitation rights of
Father. Mother, being dissatisfied with the new visitation decree,
appealed. 

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

DIANNA FRITTS AND RUTH WILLIAMS,                    
v.
JERRY ABBOTT AND LINDA ABBOTT, IN RE: Estate of Charles Williams

Court:TCA

GERALD C. RUSSELL, Maryville, for Plaintiffs-Appellants.

F. D. GIBSON, Maryville, for Defendants-Appellees.
                         
Judge: Franks. J.

First Paragraph:

Plaintiffs are personal representatives of the estate of Charles J.
Williams, and brought this action to set aside conveyances
Williams made to defendants.  After an evidentiary hearing, the Trial
Judge, without a jury, entered judgment for defendants and plaintiffs
have appealed.

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

MARY GASKINS and Husband,KEN GASKINS,
v.
GILBERT G. STEIN, D.D.S., GILBERT G. STEIN, D.D.S., P.C., DOW CORNING
CORPORATION and ST. FRANCIS HOSPITAL, INC. FOUNDATION,

Court:TCA

Alan R. Wolfe,
WILLIAMS, McDANIEL & WOLFE, P.C., Memphis, TN
Attorney for Plaintiffs/Appellants.

Darrell E. Baker, Jr.,
SHUTTLEWORTH, SMITH, McNABB & WILLIAMS, Memphis, TN
Jerry O. Potter, Memphis, TN
Attorneys for Defendants/Appellees, Gilbert G. Stein, D.D.S. and
Gilbert G. Stein, D.D.S., P.C.
                     
Judge: FARMER, J.

First Paragraph:

In this dental malpractice action, Plaintiffs-Appellants, Mary K.
Gaskins and Ken Gaskins (the Gaskins or Plaintiffs) appeal the
trial courts grant of summary judgment in
favor of Defendants-Appellants, Gilbert G. Stein, D.D.S., and Gilbert
G. Stein, D.D.S., P.C. (Dr. Stein or Defendant) based upon the
three-year medical malpractice statute of repose.

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

FAYE GENTRY,v. JENNIFER McGAHA,     

Court:TCA

THOMAS V. TESTERMAN, Newport, for Petitioner-Appellee.

WILLIAM LEIBROCK, Newport, for Respondent-Appellant.
                          
Judge: Franks. J.

First Paragraph:

In this action to enforce visitation rights by the paternal
grandparents, the Trial Judge ordered visitation and the mother has
appealed.

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

MARY KILGORE,               
v.
DONNY R. GARNER, individually and d/b/a Donny R. Garner Insurance
Agency and NATIONWIDE INSURANCE COMPANY,

Court:TCA

Catherine M. White, Chattanooga, For the Appellant 

Richard A. Smith, Chattanooga, For the Appellee 
                        
Judge: INMAN

First Paragraph:

This is an action for damages for sexual harassment in violation of
the TN Human Rights Act, T.C.A.  4-21-401, et seq.  The
defendant Donny Garner owns a small entrepeneurial insurance agency. 
At times material, he employed three persons.  In 1988, he contracted
with Nationwide to sell its insurance products exclusively; the
contract provided, inter alia, that Mr. Garner had the right to
exercise independent judgment as to time, place and manner of
soliciting insurance, servicing insurance and otherwise carrying out
the terms of the Agreement.  

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

KNOXVILLE UTILITIES BOARD v. LENOIR CITY UTILITIES BOARD  

Court:TCA

TERRY G. VANN, CITY ATTORNEY, OF LENOIR CITY, and ROBERT B. LITTLETON
and AMANDA HAYNES YOUNG, WITH TRABUE, STURDIVANT & DeWITT, OF
NASHVILLE, TN, FOR APPELLANT

ROBERT R. CAMPBELL and JAMES M. CORNELIUS, JR., WITH HODGES, DOUGHTY &
CARSON, OF KNOXVILLE, TN, FOR APPELLEE
                      
Judge: Sanders

First Paragraph:

The only issue on appeal of this declaratory judgment suit is whether
the taking by the City of Knoxville's Utilities Board of the
properties of the Lenoir City's Utilities Board, used for the sale and
distribution of electricity in an area annexed by the City of
Knoxville, is governed by TCA  6-51-111 or TCA  6-51-112.  We affirm
the holding of the trial court that it is governed by  6-51-111.

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

RUTH HALL LANE,                
v..
ESTATE OF THOMAS ROBERT E. LANE, Deceased, NELLE ANNE JOHNSON LANE,
Executrix, and NELLE ANNE JOHNSON LANE, Individually,

Court:TCA

DOUGLAS M. ANDERSON of ANDERSON & ANDERSON, Knoxville, for Appellant

JOHN E. McDONALD of JOYCE, MEREDITH, FLITCROFT & NORMAND, Oak Ridge,
and JAMES C. CONE of JENKINS & JENKINS, Knoxville, for Appellees
                         
Judge: Susano, J

First Paragraph:

Ruth Hall Lane (Ruth) filed a petition for widows rights, including
an elective share of the estate of Thomas Robert E. Lane (Robert),
asserting that she is the surviving spouse of the deceased.  In so
doing, she challenges the validity of a decree granting Robert an ex
parte divorce, said decree being entered on September 29, 1958, by the
Trial Justice Court of Anderson County.  Roberts will leaves his
estate to Nelle Anne Johnson Lane (Nelle), to whom he was married on
February 17, 1959, and to whom he remained married until his death on
July 29, 1994.  

URL:http://www.tba.org/tba_files/TCA/LANERH.OP.WP6
Opinion-Flash

SARAH JO PEETE, v. SHELBY COUNTY HEALTH CARE CORPORATION,

Court:TCA

Ira M. Thomas,
Al H. Thomas,
THOMAS & THOMAS, Memphis, TN
Attorney for Plaintiff/Appellant.

Mark S. Norris,
Cannon F. Allen,
ARMSTRONG ALLEN PREWITT GENTRY JOHNSTON & HOLMES, Memphis, TN
Attorney for Defendant/Appellee.
                         
Judge: FARMER, J.

First Paragraph:

In this negligence action, Plaintiff-Appellant, Sarah Jo Peete (Ms.
Peete or Plaintiff), appeals the trial courts grant of summary
judgment in favor of Defendant-Appellee, Shelby County Health Care
Corporation (The Med or Defendant).

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

STATE OF TN, ex rel.
STEPHANIE SCOTT 
v. 
MARK BROWN  

Court:TCA

CLIFFORD E. WILSON OF MADISONVILLE FOR APPELLANT

CHARLES W. BURSON, Attorney General & Reporter, and James H. Tucker,
Jr., Assistant Attorney General, OF NASHVILLE FOR APPELLEE
                          
Judge: Goddard, P.J.

First Paragraph:

Mark Brown appeals a judgment of the Circuit Court for Bradley County
which found that he was the father of Kara Danielle Stephens, who was
born on May 4, 1977, and attained her 18th birthday during the
pendency of this suit.

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

JULIA SUTTLES  v. STEVE SUTTLES and SIERRA MERRELL            

Court:TCA

PAUL G. WHETSTONE, OF MORRISTOWN, TN, FOR APPELLANT

JULIA SUTTLES, PRO SE FOR APPELLEE, OF CHURCH HILL, TN
                          
Judge: Sanders

First Paragraph:

Defendant Steve Suttles appeals from a judgment for contempt of an
order of protection granted to the Plaintiff pursuant to TCA 
36-3-601, et seq.

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

DANIEL LEROY WORD, v. ALICE ANN WORD,       

Court:TCA

HUBERT D. PATTY, Maryville, for Appellant

MARTHA MEARES, Maryville, and JOHN E. McDONALD of JOYCE, MEREDITH,
FLITCROFT & NORMAND, Oak Ridge, for Appellee
                          
Judge: Susano, J.

First Paragraph:

This is a divorce case.  Daniel Leroy Word, the original plaintiff,
appeals.  He claims that the trial courts division of the parties
property is inequitable; that the court improperly considered fault in
dividing the property; that the courts award of lump sum alimony is
not appropriate under the factors set forth at T.C.A. 
36-5-101(d)(1)(A)-(L); that the court should not have ordered him to
pay a portion of his wifes attorney fee; and that the court erred in
requiring him to pay the debt on her automobile.  He also raises as an
issue the failure of the trial court to order the court reporters who
attended the trial and other hearings to prepare a transcript of the
evidence received at those proceedings.  

URL:http://www.tba.org/tba_files/TCA/WORDDL.OP.WP6
Opinion-Flash

JAMES E. MARTIN, v. STATE OF TN,    

Court:TCCA

For the Appellant:          For the Appellee:

Jesse Farr                  Charles W. Burson
Attorney at Law             Attorney General and Reporter
707 Georgia Avenue
Suite 401, Flatiron Bldg.   
Chattanooga, TN 37402       Timothy F. Behan
                            Assistant Attorney General                          
                            Criminal Justice Division
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493                
                        
                            William H. Cox III          
                            District Attorney General

                            David Denny
                            Asst. District Attorney General
                            600 Market Street
                            Courts Building
                            Chattanooga, TN  37402
                        
Judge: David G. Hayes

First Paragraph:

The appellant, James E. Martin, appeals from the Hamilton County
Criminal Courts denial of his petition for post-conviction relief. 
In 1988, the appellant pled guilty to first degree murder and armed
robbery.  Pursuant to the plea agreement, the trial court imposed two
concurrent life sentences.  The appellant first contends that his
pleas of guilty were not knowing and voluntary, i.e. made with
knowledge of the relevant circumstances and likely consequences.
King v. Dutton, 17 F.3d 151, 153 (6th Cir.), cert. denied,     U.S.   
, 114 S.Ct. 2712 (1994)(citation omitted).  Second, the appellant
asserts that appointed counsel were ineffective in failing to ensure
that the appellant was capable of understanding the guilty plea
proceeding.

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

STATE OF TN,    v. TIM JAMES NORWORD,   

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:


KENNETH L. MILLER           CHARLES W. BURSON
P.O. Box 191                Attorney General & Reporter
Cleveland, TN   37364
                            HUNT S. BROWN
                            Asst. Attorney General
                            450 James Robertson Pkwy.                               
                            Nashville, TN  37243-0493
                
                            JERRY N. ESTES
                            District Attorney General

                            JOE REHYANSKY
                            Asst. District Attorney General
                            P.O. Box 191
                            Cleveland, TN   37364                          

Judge: JOHN H. PEAY

First Paragraph:

The defendant was indicted for simple possession of less than one-half
ounce of marijuana, possession of drug paraphernalia, and driving on a
revoked license.  He signed a waiver of his right to a jury trial,
entering guilty pleas for all offenses.  The defendant reserved a
certified question of law regarding the trial courts denial of his
motion to suppress all evidence obtained during an alleged illegal
investigative stop.  In this appeal as of right, the defendant asserts
that, since the stop was made without a warrant and without reasonable
suspicion, all resulting evidence should be suppressed.  

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

STATE OF TN,    v. JOHN DAVID RANKIN, Jr.,  

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

LAURA RULE HENDRICKS        CHARLES W. BURSON
Contract Attorney for the   Attorney General and Reporter
District PD Office
2nd Judicial District       TIMOTHY F. BEHAN
810 Henley Street           Assistant Attorney General
Knoxville, TN 37902         450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            GREELEY WELLS
                            District Attorney General

                            EDWARD WILSON
                            Assistant District Attorney General
                            Blountville, TN 37617
                        
Judge: JERRY L. SMITH

First Paragraph:

A Sullivan County Criminal Court jury convicted Appellant John David
Rankin, Jr. of failure to appear at the Sullivan County jail on
December 15, 1993, to serve sentences imposed for two theft
convictions.  As a Range II offender, Appellant received the minimum
sentence of two years.  The trial court ordered the sentence served
consecutive to the sentences for theft.  In this appeal, Appellant
presents the following issues for review: (1) whether the evidence
presented at trial is legally sufficient to sustain a conviction for
failure to appear; (2) whether the trial court erred in refusing to
allow Appellant to testify as to statements made by his attorney; (3)
whether the trial court erred in conducting the sentencing hearing
almost five months after conviction; and (4) whether the trial court
erred in ordering the sentence served consecutive to the sentences for
theft.

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

Feel free to forward this Opinion-Flash on to any attorney you know of with an internet address, who is not a TBALink member. To Join TBALink - Http://www.tba.org/join.html/

Would you like to receive the TBALink Opinion-Flash each day via e-mail?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE
3) Leave the body of the message blank

Non TBA members are WELCOME to subscribe...it's free!!

Would you like to STOP receiving the TBALink Opinion-Flash?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: UNSUBSCRIBE
3) Leave the body of the message blank


© Copyright 1998 Tennessee Bar Association