TBALink Opinion-Flash

September 05, 1996 -- Volume #2 -- Number #79

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:
07-New Opinons From TSC
00-New Opinons From TSC-Rules
10-New Opinons From TSC-Workers Comp Panel
00-New Opinons From TCA
09-New Opinons From TCCA

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TBALink Chief Editor


BLANCHE BILBREY AND CECIL ASBERRY, v. VESTEL SMITHERS,          

Court:TSC

For Plaintiffs-Appellees:       For Defendant-Appellant:

Phillips M. Smalling            Onnie L. Winebarger
Byrdstown                       Byrdstown
                        
Judge: REID, J.

First Paragraph:

This case presents for review the right of a child born out of wedlock
to inherit from his natural father who died prior to the amendment of
Tenn. Code Ann. 31-2-105(a)(2)(B) (Supp. 1995) in 1978.  The record
supports the finding of paternity, but the claimant failed to
establish the right to inherit as required by the statute; however,
the appellant is estopped to deny the claimant's asserted interest in
the decedent father's real property.

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

CAPE FEAR PAGING COMPANY, d/b/a CUE PAGING OF TENNESSEE
AND KENTUCKY,               
v.
JOE B. HUDDLESTON, COMMISSIONER OF REVENUE, STATE OF TENNESSEE,,

Court:TSC

For Plaintiff-Appellant:        For Defendant-Appellee:

C. Michael Norton               Charles W. Burson
Janet P. Sparkman               Attorney General & Reporter
Wyatt, Tarrant & Combs          Nashville
Nashville
                                Michael E. Moore
                                Solicitor General
                                Nashville

                                Charles L. Lewis
                                Deputy Attorney General
                                Nashville
                        
Judge: REID, J.

First Paragraph:

This case presents for review the decision of the Court of Appeals,
affirming the judgment of the trial court, which denied the appellant
taxpayer's claim for the refund of sales taxes.  This Court finds that
the taxpayer is entitled to the refund claimed.  The Court of Appeals
is reversed.

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

GENEVA COFFEY,  
v. 
FAYETTE TUBULAR PRODUCTS, LIVINGSTON DIVISION, DANAHER CORPORATION

Court:TSC

For Plaintiff-Appellant:        For Defendant-Appellee: 

Ernest C. Onks, Sr.             W. Kerby Bowling
Cookeville, Tennessee           W. Kerby Bowling II
                                Joseph M. Crout
Ronald Thurman                  M.V. Tichenor
Craig P. Fickling               Memphis, Tennessee
Ronald Thurman & Associates
Cookeville, Tennessee   
                         
Judge: DROWOTA, J.

First Paragraph:

In this retaliatory discharge action, the plaintiff, Geneva Coffey,
appeals from two aspects of the Court of Appeals judgment: (1) its
suggested remittance of the punitive damage award from $500,000 to
$150,000; and (2) its disallowance of the $20,000 in front pay
awarded by the trial court.  After a careful consideration of the law
and the record in this case, we conclude that the Court of Appeals
erred in both respects.  Therefore, we reverse that courts judgment,
and reinstate, in its entirety, the judgment rendered by the trial
court.

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

DANNY RAY HARRELL,  v. THE MINNESOTA MUTUAL LIFE INSURANCE COMPANY,

Court:TSC

For Appellant:                  For Appellee:

Rufus W. Beamer, Jr.            Arthur G. Seymour, Jr.
Knoxville, Tennessee            Robert L. Kahn
                                FRANTZ, McCONNELL & SEYMOUR
                                Knoxville, Tennessee
                          
Judge: ANDERSON, J

First Paragraph:

We granted this appeal to determine whether we should retain "the
Distretti Rule" adopted by this Court sixty-seven years ago.  The rule
provides that before a death will be considered accidental under the
terms of an insurance contract, the means, as well as the result, must
be involuntary, unexpected, and unusual.

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

OLD HICKORY ENGINEERING & MACHINE COMPANY, INC., 
v. 
PHILLIP HENRY AND JEFF SHEPARD,

Court:TSC

For Plaintiff-Appellee:         For Defendants-Appellants:

John M. Cannon                  Joseph Y. Longmire, Jr. n
Cannon, Cannon & Cooper,        Jones, Longmire & Sindle 
  P.C.                          Goodlettsville
Goodlettsville
                       
Judge: REID, J.

First Paragraph:

This case presents for review the decision of the Court of Appeals
reversing the trial court's dismissal of the complaint.  The Court of
Appeals held that the complaint, which was signed only by the
non-lawyer president of the corporate plaintiff, was "not void" and
that the subsequent appearance of a lawyer on behalf of the plaintiff
"corrected the defect" in the pleading.  That court ordered that the
suit be allowed to proceed to trial even though the complaint was
filed on the last day permitted by the savings statute, Tenn. Code
Ann. 28-1-105 (Supp. 1995).  The decision by the Court of Appeals is
reversed.

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

FRANK L. WHITE, v. HUBERT A. McBRIDE, EXECUTOR

Court:TSC

For Plaintiff-Appellant:            For Defendant-Appellee:

Frank J. Glankler, Jr.              James T. Bland, Jr.
Robert L. Hutton                    Memphis, Tennessee
Glankler Brown
Memphis, Tennessee

Judge: DROWOTA, J.

First Paragraph:

This case presents the question of whether the plaintiff, attorney
Frank White, may recover attorneys fees from the estate of Kasper
McGrory.  This broad question may, in turn, be divided into two
specific subissues: (1) whether the contingency fee contract between
White and McGrory is clearly excessive under Disciplinary Rule 2-106
of the Code of Professional Responsibility, Tenn. Sup. Ct. R. 8,  and
is, thus, unenforceable; and (2) if the contingency fee contract is
unenforceable, whether White may, nevertheless, recover attorneys
fees on a quantum meruit basis.  

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

ELI MIKE, AN INDIVIDUAL; JAMES A. SCHRAMPFER, AN INDIVIDUAL; AND JANE
N. FORBES, AS TRUSTEE IN BANKRUPTCY FOR THE ESTATE OF DAVID L. OSBORN,
v.
PO GROUP, INC., A TENNESSEE CORPORATION; JAMES W. (BILL) ANDERSON III,
AN INDIVIDUAL; AND THE ESTATE OF HAROLD L. JENKINS,

Court:TSC

For Plaintiffs-Appellants:      For Defendants-Appellees:

Gary M. Brown                   William L. Harbison
Matthew J. Sweeney, III         L. Webb Campbell, II
John C. Tishler                 Andrew J. Pulliam
Tuke, Yopp & Sweeney            Sherrard & Roe, P.L.C.
Nashville                        Nashville

                                Denty Cheatham
                                Cheatham & Palermo
                                Nashville
                         
Judge: REID, J.

First Paragraph:

This case presents for review the decision of the Court of Appeals,
affirming an award of summary judgment in favor of the defendants. 
The Court of Appeals held that the plaintiffs' suit charging the
breach by a majority shareholder of a fiduciary duty owed to minority
shareholders is barred by the one year statute of limitations.  This
Court concludes that the applicable period of limitations is three
years and  remands the case to the trial court to determine whether
plaintiffs' action was time-barred.

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

JOE BOATMAN,                
v.
WW OF MEMPHIS, INC. d/b/a ADVANCE MUFFLER & AUTO SERVICE and AMERISURE
INSURANCE COMPANY,
w/JUDGMENT ORDER

Court:TSC - Workers Comp Panel

For the Appellants:             For the Appellee: 

Carol Mills Hayden              Cecil G. Keltner
80 Monroe Ave., Ste. 550        219 Adams Ave.
Memphis, TN 38173-0160          Memphis, TN 38103
                        
Judge: BYERS

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 trial
court awarded plaintiff 50% permanent partial disability to each arm. 
Defendant challenges 1) the finding of permanent vocational disability
to the right arm and 2) the finding of 50% permanent partial
disability to each arm.

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

JIMMY McCARVER, v. TECUMSEH PRODUCTS COMPANY,
w/JUDGMENT ORDER

Court:TSC - Workers Comp Panel

For Appellant:                       For Appellee:

David F. Hessing                     Robert T. Keeton
Hessing, Ventimiglia & Swayne        Keeton Law Offices
Paris, Tennessee                     Huntingdon, Tennessee

Judge: Loser

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. section 50-6-225(e)(3) for hearing and reporting
of findings of fact and conclusions of law.  In this appeal, the
employer, Tecumseh, contends that the evidence preponderates against
the trial court's finding that the employee's disability arose out of
the employment.  The panel agrees.

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

REBA JOYCE MOODY, STATUORY REPRESENTATIVE OF JAMES JUNIOR MOODY
v.
PHELPS SECURITY, INC.  and FIDELITY and CASUALTY CO. OF NEW YORK
w/JUDGMENT ORDER

Court:TSC - Workers Comp Panel

FOR APPELLANT:                      FOR APPELLEE:

Ronald W. Kim                       James F. Eggleston
Steve Taylor                        Suite 3016, 100 N. Main
Kim, Wilcox & McArthur              Memphis, Tennessee
6363 Poplar Avenue, Suite 60l                       
Memphis, Tennessee
                          
Judge: Tatum

First Paragraph:

Suit was filed in the Circuit Court at Memphis by Reba Joyce Moody as
representative of the estate of her deceased husband, James Junior
Moody, against Phelps Security, Inc., the employer, and Fidelity and
Casualty Co. of New York, the employer's workers' compensation
insurance carrier.  The plaintiff sued for workers' compensation
benefits as a result of an accidental injury that allegedly caused the
death of James Junior Moody, including a portion of the medical
expenses incurred.   

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

BLANCHE RENE SMITH, v. BRUCE HARDWOOD FLOORS,   
w/JUDGMENT ORDER

Court:TSC - Workers Comp Panel

For the Appellant:              For the Appellee:

William F. Kendall, III         Mary Dee Perkins
Robert B. Vandiver, Jr.         George L. Morrison, III
WALDROP & HALL, P.A.            201 E. Baltimore
106 South Liberty Street        Jackson, TN 38301
Jackson, TN 38301
                   
Judge: BYERS

First Paragraph:

Plaintiff was working at Bruce Hardwood Floors when she injured her
right shoulder in October of 1991 while lifting pieces of wood from a
conveyor belt.  In May of 1992, she complained to her treating
physician of pain in her hands and wrists.  She alleged work-related
permanent disability as a result of these conditions.  The trial court
awarded plaintiff 33 percent permanent partial disability to each arm.

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

SANDRA WHITEHEAD,v. EXPRESS SERVICES, INC., 
w/JUDGMENT ORDER

Court:TSC - Workers Comp Panel

For Appellant:              For Appellee:

Sam L. Crain, Jr.           Ricky L. Boren
Laurie Meehan               Hill Boren P.C.
Burch, Porter & Johnson     Jackson, Tennessee
Memphis, Tennessee
                         
Judge: Loser

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. section 50-6-225(e)(3) for hearing and reporting
of findings of fact and conclusions of law.  In this appeal, the
employer, Express Services, contends the trial court's award of
permanent partial disability benefits on the basis of eighty percent
permanent partial disability to the left arm is excessive.  The panel
has concluded that the award should be modified to provide permanent
partial disability benefits on the basis of fifty percent to the left
arm.

URL:http://www.tba.org/tba_files/TSC_WCP/WHITEHED.OPN.WP6
URL:http://www.tba.org/tba_files/TSC_WCP/WHITEHEA.JDG.WP6
Opinion-Flash

JACQUES B. BENNETT, v. STATE OF TENNESSEE,  

Court:TCCA

FOR THE APPELLANT:                  FOR THE APPELLEE:


A. CHRISTIAN LANIER, III            CHARLES W. BURSON
Suite 150, 615 Lindsay St.          Attorney General & Reporter
Chattanooga, TN   37403
                                    TIMOTHY F. BEHAN
                                    Asst. Attorney General
                                    450 James Robertson Pkwy.                               
                                    Nashville, TN  37243-0493
                
                                    WILLIAM H. COX, III
                                    District Attorney General

                                    DAVID DENNY
                                    Asst. District Attorney General
                                    Courts Bldg.,  600 Market St.
                                    Chattanooga, TN   37402                       

Judge: JOHN H. PEAY

First Paragraph:

The petitioner was indicted for first-degree murder and conspiracy to
commit first-degree murder.  The State filed a notice of intent to
seek the death penalty.  The petitioner pled guilty to first-degree
murder and received a sentence of life imprisonment.  He took no
appeal as of right but filed a petition for post-conviction relief. 
After a hearing, the lower court denied the petition.

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

STATE OF TENNESSEE, v. REGINALD BONNER, 

Court:TCCA

For the Appellant:              For the Appellee:

Howard L. Wagerman              Charles W. Burson
100 North Main, Suite 2003      Attorney General of Tennessee
Memphis, TN 38103               and
(AT TRIAL)                      Ellen H. Pollack
                                Assistant Attorney General of Tennessee                     
                                450 James Robertson Parkway     
Howard L. Wagerman              Nashville, TN 37243-0493
Howard B. Manis
100 North Main, Suite 2003      John W. Pierotti, Jr.
(ON APPEAL)                     District Attorney General
                                and 
                                Paul F. Goodman
                                
Judge: Joseph M. Tipton

First Paragraph:

The defendant, Reginald Bonner, appeals as of right from the Shelby
County Criminal Courts refusal to sentence him under the Tennessee
Community Corrections Act of 1985.  See T.C.A. 40-36-101--106. 
Pursuant to agreement, the defendant pled guilty to second degree
murder, a Class A felony, and was sentenced as a Range I standard
offender to twenty years in the Department of Correction.  He
petitioned for a community corrections sentence, claiming that he had
special needs for treatment in the community for a drug problem, but
the trial court held that he was ineligible.  The defendant contends
that he is eligible for such a sentence.  We disagree.

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

STATE OF TENNESSEE, v. DAVID COX,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Mack Garner                 Charles W. Burson
District Public Defender    Attorney General & Reporter 
419 High Street
Maryville, TN 37804         Robin L. Harris
                            Assistant Attorney General
                            Criminal Justice Division
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            Michael L. Flynn
                            District Attorney General

                            Philip H. Morton
                            Asst. Dist. Attorney General
                            363 Court Street
                            Maryville, TN 37804-5906
                     
Judge: PAUL G. SUMMERS

First Paragraph:

The appellant, David Cox, appeals the trial courts revocation of his
probation.  We affirm.

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

SCOTT L. DEEM,  v. STATE OF TENNESSEE,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Gregory D. Smith                Charles W. Burson 
One Public Sq., Ste. 321        Attorney General of Tennessee
Clarksville, TN.  37040         and 
                                Kimbra Spann    
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                John Wesley Carney, Jr.
                                District Attorney General
                                and
                                Arthur Bieber
                                Assistant District Attorney General
                                204 Franklin St. Suite 200
                                Clarksville, TN 37041
                       
Judge: PER CURIAM

First Paragraph:

The petitioner, Scott L. Deem, appeals from the trial courts denial
of his second petition for post-conviction relief.  The single issue
presented for review is whether the trial court properly dismissed the
petition without an evidentiary hearing.  We affirm.

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

GREGORY LEVERETT, v. STATE OF TENNESSEE,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Gregory Leverett, Pro Se        Charles W. Burson
N.W.C.C.                        Attorney General & Reporter 
Route 1, Box 660
Tiptonville, TN 38079           Eugene J. Honea
                                Assistant Attorney General
    
                                Gary D. Gerbitz
                                District Attorney General (Former)

                                Yolanda Mitchell
                                Asst. Dist. Attorney General
                          
Judge: PAUL G. SUMMERS

First Paragraph:

The appellant, Gregory Leverett, pled guilty to rape.  He was
sentenced to twelve years incarceration.  He petitioned for
post-conviction relief.  The petition was dismissed as untimely.  He
now appeals that dismissal.  We respectfully reverse and remand for an
evidentiary hearing.

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

STATE OF TENNESSEE, v. JERRY L. MATHEWS,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

CHARLES F. FLEET            CHARLES W. BURSON
The Cohn Law Firm           Attorney General and Reporter
Koger Center - Sutie 300
65 Germantown Court         MICHELLE L. LEHMANN
Memphis, TN  38018          Assistant Attorney General

                            ELIZABETH RICE
                            District Attorney General

                            JERRY NORWOOD
                            Assistant District Attorney

Judge: JERRY L. SMITH

First Paragraph:

Appellant Jerry L. Mathews was convicted of a single count of
aggravated assault arising out of a domestic dispute wherein Mathews
shot and wounded his son.  Appellant was also indicted for shooting at
his two daughters; however, he was acquitted of these charges.  For
the single aggravated assault conviction, Appellant was sentenced as a
Range I standard offender to three (3) years in the Department of
Correction.  The sentence was suspended except for 90 days which
Appellant was ordered to ser

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

STATE OF TENNESSEE, v. SAMUEL SCOTT MINTON,

Court:TCCA

For the Appellant:      For the Appellee:

J. Arnold Fitzgerald    Charles W. Burson
P. O. Box 227           Attorney General & Reporter
1470 Market Street          
Dayton, TN 37321        Hunt S. Brown
                        Michael J. Fahey, II
                        Assistant Attorneys General
                        450 James Robertson Parkway
                        Nashville, TN 37243-0493


                        Jerry N. Estes
                        District Attorney General

                        Joe Rehyansky
                        Rebble Johnson
                        Assistant District Attorneys General
                        10th Judicial District
                        P. O. Box 1351
                        Cleveland, TN 37311

Judge: JOHN K. BYERS

First Paragraph:

The defendant was convicted of the following offenses and sentenced to
serve the punishments therefore as follows: Conspiracy to commit
aggravated burglary with a sentence of two years running consecutive
to counts 2 - 11; Aggravated rape (5 counts) with a sentence of twenty
years running consecutive to counts 1 and 7-11; Especially aggravated
kidnaping with a sentence of twenty years running consecutive to
counts 1-6 and 8-11; Especially aggravated robbery with a sentence of
twenty years running consecutive to all counts except 10; Judgment of
dismissal as to aggravated assault; Especially aggravated burglary
with a sentence of ten years to run consecutive to all other counts
except count 8; and Theft of over $1,000. with a sentence of four
years to run consecutive to all other counts.

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

STATE OF TENNESSEE, v. KENNETH D. ODIE, 

Court:TCCA

For the Appellant:              For the Appellee:

Mark A. Saripkin                Charles W. Burson
Attorney at Law                 Attorney General and Reporter
296 Washington Avenue   
Memphis, TN  38103              Ellen H. Pollack
                                Assistant Attorney General  
Joseph S. Ozment                Criminal Justice Division
Attorney at Law                 450 James Robertson Parkway
217 Exchange Avenue             Nashville, TN 37243 0493        
Memphis, TN  38103      
                        
                                John W. Pierotti
                                District Attorney General

                                Jennifer Nichols
                                Asst. District Attorney General
                                201 Poplar Avenue, Third Floor
                                Memphis, TN  38103                          

Judge: David G. Hayes

First Paragraph:

The appellant, Kenneth D. Odie, appeals from the trial courts denial
of an alternative sentence.  The appellant pled guilty in the Criminal
Court of Shelby County to possession of cocaine in excess of one-half
gram with the intent to sell, a class B felony.  Tenn. Code Ann. 
39-17-417(c)(1) (1992).  The plea agreement provided for a sentence of
eight years.  According to the plea agreement, the trial court was to
determine the manner of service of the sentence.  The trial court
ordered that the appellant serve his entire sentence in the Department
of Correction.  On appeal, the appellant contends that the trial court
should have granted the appellant probation or community corrections.

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

ZACHARY C. ROBINSON,v. STATE OF TENNESSEE,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

William Lee Brown           Charles W. Burson
Attorney at Law Attorney    General & Reporter 
706 Walnut Street
Suite 902                   Eugene J. Honea
Knoxville, TN 37902         Assistant Attorney General
    
                            Randall E. Nichols
                            District Attorney General

                            Marsha Selecman
                            Asst. Dist. Attorney General
                        
Judge: PAUL G. SUMMERS

First Paragraph:

The appellant, Zachary C. Robinson, seeks post-conviction relief from
convictions occurring between 1977 and 1981.  Although he has fully
served the sentences associated with those convictions, he asserts
that he was not apprised of the possible future ramifications of those
convictions.  The trial judge dismissed the petition as untimely. 
Upon review, we find no error of law mandating reversal.  The trial
court's dismissal is affirmed in accordance with Tenn. R. Ct. Crim.
App., Rule 20.

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

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