TBALink Opinion-Flash

September 18, 1996 -- Volume #2 -- Number #82

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

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George Dean
TBALink Chief Editor


STATE OF TENNESSEE, v. JOE L. ANDERSON, 

Court:TSC

For Appellant:                      For Appellee:

Charles W. Burson                   Richard B. Fields
Attorney General & Reporter         Memphis, Tennessee

Michael E. Moore
Solicitor General

Gordon W. Smith
Associate Solicitor General

Eugene J. Honea
Assistant Attorney General
Nashville, Tennessee

Jerry Wallace
Assistant District Attorney
Decaturville, Tennessee                       

Judge: ANDERSON, J.

First Paragraph:

We granted this appeal to clarify the standards by which courts
determine whether a person being questioned by law enforcement
officers is in custody, and therefore entitled to the warnings
mandated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966).

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

ANITA K. BEETS, et al., 
v. 
PIONEER WESTERN PROPERTIES CORPORATION, et al.,

Court:TSC

FOR PLAINTIFFS/APPELLEES:       FOR DEFENDANTS/APPELLANTS:

Herbert S. Moncier              John D. Schwalb
Ann Short                       Brewer, Krause, Brooks & Mills
Knoxville, Tennessee            Nashville, Tennessee 
                         
Judge: PER CURIAM

First Paragraph:

Upon further consideration of the record and the oral argument in this
cause, the Court is of the opinion that the Court of Appeals has
reached the right result upon the issues presented to this Court for
review.   The application for permission to appeal was improvidently
granted.

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

PAMELA DIANNE LOMAX COHEN,  v. JAY STEVEN COHEN,

Court:TSC

For the Plaintiff:          For the Defendant:

Vance Cramb, Jr.            Fred C. Dance
Nashville, TN               DANCE, DANCE & LANE
                            Nashville, TN  
                          
Judge: WHITE, J.

First Paragraph:

This divorce case raises two important questions involving the
classification of marital property under our statutes.  The first
question is whether an interest in an unvested retirement plan is
marital property.  The second question is whether increased equity in
separate real property is martial property.  The trial court declined
to consider the husbands interest in an unvested retirement plan as
marital property, but did conclude that the increased equity in the
husbands separate real property was marital property subject to
division.  The Court of Appeals reversed on both counts.  We granted
permission to appeal to determine whether the legislatures definition
of marital property set forth in Tennessee Code Annotated Section
36-4-121 (1)(b) includes either unvested retirement plans or increased
equity in separate real property.  

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

PETITION OF ATTORNEY ISAIAH S. GANT, FOR REVIEW AS UNDER THE COMMON
LAW WRIT OF CERTIORARI
                            
IN RE: HOURLY COMPENSATION RATE OF COURT APPOINTED COUNSEL IN STATE OF
TN V. COURTNEY MATHEWS, MONTGOMERY COUNTY NO. 33791

Court:TSC

For Petitioner:                 For Respondent:

William P. Redick, Jr.          Charles W. Burson
Whites Creek, TN                Attorney General and Reporter

                                Kathy Morante
                                Deputy Attorney General
                                Nashville, TN
                         
Judge: BIRCH, C.J.

First Paragraph:

Isaiah S. Gant, appointed counsel in a capital case,  petitions this
Court for review of the refusal of the Director of the Administrative
Office of the Courts  to compensate him at a rate higher than that
established in Rule 13, Rules of the Supreme Court of Tennessee. 
Because we find that the Director, in rejecting Gants claim, neither
exceeded his jurisdiction nor acted illegally, arbitrarily, or
fraudulently, we affirm the ruling of the Director.

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

LOUIS GLAZER, M.D., v. FIRST AMERICAN NATIONAL

Court:TSC

For Plaintiff-Appellee:     For Defendant-Appellant:

Henry L. Klein              Gary L. Jewel
Apperson, Crump, Duzane     Jewel & Rich
& Maxwell                   Memphis, Tennessee
Memphis, Tennessee
                         
Judge: DROWOTA, J.

First Paragraph:

In this case involving a claim for conversion under  47-3-419 of the
Tennessee Uniform Commercial Code (UCC), the defendant, First American
National Bank (FANB), appeals from the Court of Appeals affirmance of
the trial courts judgment in favor of the plaintiff, Louis Glazer,
M.D.  The sole issue for our determination is whether the trial
courts award of consequential or special damages to Glazer was proper
under the facts of this case.   For the reasons that follow, we hold
that the award was not proper.  Therefore, the judgment of the Court
of Appeals is reversed.

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

DOROTHY CAROLINE JONES, v., CURTIS LAMAR JONES,

Court:TSC

For Plaintiff-Appellee:         For Defendant-Appellant:
    
William H. Hall                 Selma Cash Paty
Soddy-Daisy, Tennessee          Paty, Rymer & Ulin, P.C. 
                                Chattanooga, Tennessee                         

Judge: DROWOTA, J.

First Paragraph:

This child support case presents a single issue for our consideration:
whether the trial court erred in finding that the child support
guidelines were inapplicable, and thereafter setting the child support
at an amount approximately 30% less than that called for in the
guidelines.  For the reasons that follow, we conclude that the grounds
relied upon by the trial court are insufficient to justify a downward
deviation from the guidelines; therefore, we reverse the judgment of
the trial court and Court of Appeals.

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

STATE OF TENNESSEE, v. SHERYL L. PENDERGRASS,       

Court:TSC

For Appellant:                  For Appellee:

Lionel R. Barrett, Jr.          Charles W. Burson
Lionel R. Barrett, Jr., P.C.    Attorney General & Reporter
Nashville, Tennessee
                                Michael E. Moore
John Pellegrin                  Solicitor General
Gallatin, Tennessee
                                Gordon W. Smith
                                Associate Solicitor General
                                Nashville, Tennessee

                                Lawrence Ray Whitley
                                District Attorney General
                                and
                                Dee David Gay
                                Assistant District Attorney General
                                Gallatin, Tennessee                          

Judge: ANDERSON, J.

First Paragraph:

The threshold issue in this appeal is whether the defendant, Sheryl L.
Pendergrass, in pleading guilty to a drug charge, explicitly reserved
the right to appeal a certified question of law that was dispositive
of the case, in accordance with the requirements of Tenn. R. Crim. P.
37(b)(2)(iv) as it was interpreted by this Court in State v. Preston,
759 S.W.2d 647 (Tenn. 1988).

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

N. THOMAS PURSELL, JR., 
v.
FIRST AMERICAN NATIONAL BANK, CHARLES WHITE, ANITA WHITE, and CHARLES
BAGSBY, d/b/a TENNESSEE AUTO RECOVERY,

Court:TSC

For Appellant:                  For Appellees:

Phillip North                   E. Clifton Knowles
A. Gregory Ramos                Anthony J. McFarland
NORTH, PURSELL & RAMOS          Joseph F. Welborn, III
Nashville, Tennessee            BASS, BERRY & SIMS
                                Nashville, Tennessee                         

Judge: ANDERSON, J.

First Paragraph:

We granted this appeal to determine whether the actions of a bank
following repossession of collateral for a loan form the basis for an
action under the Tennessee Consumer Protection Act, Tenn. Code Ann. 
47-18-101, et seq.  The trial court granted the defendants motion to
dismiss for failure to state a claim, and the Court of Appeals
affirmed, concluding that the bank's actions did not constitute a
violation of the Consumer Protection Act because they did not affect
the conduct of any trade or commerce, as those terms are defined in
the statute.

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

RAY F. SHARP, JR. and NELL SHARP,               
v.
GREER E. RICHARDSON, M.D., CAMPBELL CLINIC, INC., and PFIZER HOSPITAL
PRODUCTS GROUP, INC.,

Court:TSC

For Appellants:                 For Appellees, Greer E. Richardson,                         
M.D. and Campbell Clinic, Inc.:
Everett B. Gibson
Everett B. Gibson Law Firm      Buckner Wellford
Memphis, Tennessee              THOMASON, HENDRIX, HARVEY,                        
JOHNSON & MITCHELL              Memphis, Tennessee


                                For Appellee, Pfizer Hospital   
                                Products Group, Inc.:

                                Philip E. Mischke
                                WYATT TARRANT & COMBS
                                Memphis, Tennessee                        

Judge: ANDERSON, J. 

First Paragraph:

The dispositive issue in this appeal is whether the Tennessee savings
statute applies to save an action which was initially filed within the
one-year products liability statute of limitations and the products
liability statute of repose, but which was voluntarily dismissed and
refiled beyond the six-year statute of repose.  We hold that it does. 
The Court of Appeals' judgment is reversed and the cause remanded to
the trial court.

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

LARRY COLEMAN,  v. KIMBERLY-CLARK CORPORATION
w/JUDGMENT ORDER

Court:TSC - Workers Comp Panel

For Appellant:                For Appellee:

McDonald Kuhn                 B. J. Wade
Carol Mills Hayden            Lori J. Keen
Memphis, Tennessee            Glassman, Jeter, Edwards & Wade
                              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 contends the award of permanent partial disability benefits
is excessive and that the trial judge "erred in failing to use the AMA
Guides to the Evaluation of Permanent Impairment, Fourth Edition, to
review the anatomical impairment assigned by" the operating surgeon. 
The employee contends the award is inadequate.  The panel has
concluded the judgment should be affirmed as modified herein.

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

GARY ALLEN FERRELL, 
v. 
BATESVILLE CASKET COMPANY, INC. and KEMPER INSURANCE CO
w/JUDGMENT ORDER

Court:TSC - Workers Comp Panel

For the Appellant:                  For the Appellees: 

Othal Smith, Jr.                    Bryan Essary
Stouffer Tower, Ste. 3121           Gideon & Wiseman
611 Commerce St.                    NationsBank Plaza, Ste. 1900
Nashville, TN 37203                 414 Union St.
                                    Nashville, TN 37219-1782

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 dismissed the plaintiffs complaint as barred by the statute of
limitations.  The plaintiff appeals this ruling. We affirm the
judgment of the trial court.

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

WOODROW CECIL FOSTER,   
v.
COFFEE COUNTY HIGHWAY DEPARTMENT and COFFEE COUNTY, TENNESSEE,
w/JUDGMENT ORDER

Court:TSC - Workers Comp Panel

For Appellant:                      For Appellee:

Steven A. Dix                       Robert Peters
McClellan, Powers, Ehmling & Dix    Swafford, Peters, O'Neal & Priest
Murfreesboro, Tennessee             Winchester, 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 questions the trial court's conclusion that the claim is not
barred by Tenn. Code Ann. section 50-6-203, a one year statute of
limitation.  The employer also contends the award of permanent partial
disability benefits based on forty-five percent to the body as a whole
is excessive.  This panel finds that the judgment should be affirmed.

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

ANTHONY S. HOPSON,v. PROTEIN TECHNOLOGIES,  
w/JUDGMENT ORDER
    
Court:TSC - Workers Comp Panel

For Appellant:                       For Appellee:

Kenneth R. Rudstrom                  Tim Edwards
Spicer, Flynn & Rudstrom             Lori J. Keen
Memphis, Tennessee                   Glassman, Jeter, Edwards & Wade
                                     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 contends only that the award of permanent partial disability
benefits on the basis of fifty percent to the arm is excessive.  The
panels finds the award should be reduced to one based on based on
thirty-five percent to the arm.

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

FRANCES REYNOLDS KELLERMAN, v. FOOD LION, INC., 
w/JUDGMENT ORDER

Court:TSC - Workers Comp Panel

For Appellant:                          For Appellee:

Jonathan Cole                           James F. Conley
Baker, Donelson, Bearman & Caldwell     Copeland, Conley & Hazard
Nashville, Tennessee                    Tullahoma, 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 contends (1) the chancellor erred in not accepting the
opinion testimony of the claimant's treating physician, (2)  the
claimant's back injury is not compensable because the evidence failed
to establish that "the accident either otherwise injured her or
advanced the severity of her preexisting condition, (3) that the
chancellor erred in considering expert medical testimony not based on
reasonable medical certainty, and (4) the award of permanent partial
disability benefits is excessive.  

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

MART E. KOBECK, v. MURRAY, INC.,    
w/JUDGMENT ORDER

Court:TSC - Workers Comp Panel

For the Appellant:              For the Appellee:

Ben Boston                      Wayne F. Hairrell
Christopher V. Sockwell         Hairrell & Jennings
Boston, Bates & Holt            P. O. Drawer H
P. O. Box 357                   200 Mahr Avenue
Lawrenceburg, TN 38464          Lawrenceburg, TN 38464                         

Judge: BYER

First Paragraph:

Plaintiff injured his neck at work in October of 1991 and subsequently
underwent anterior cervical disc removal, dissection and fusion after
which he did not recover.  The trial judge found the plaintiff to be
80 percent vocationally impaired as a result of his work injury.

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

HARVEY WAYNE McMAHAN, v. ROYAL INSURANCE COMPANY,

Court:TSC - Workers Comp Panel

For the Appellant:              For the Appellee:

Frank Q. Vettori                Roger Ridenour
P. O. Box 217                   P. O. Box 530
Knoxville, TN 37901-0217        Clinton, TN 37717-0530
                        
Judge: INMAN,

First Paragraph:

The plaintiff alleged that he injured his back in an unexplained
manner on August 20, 1993 while working for Universal Tire, Inc., that
he might not be able to return to his normal occupation, and that any
benefits he was awarded should be paid in a lump sum.  To these
allegations the employers insurer entered a general denial.  Trial
resulted in a finding that the medical proof is not objectively
strong with some inference that the plaintiff is exaggerating his
limitations.  The plaintiff was found to be ten percent permanently
partially disabled and was awarded benefits accordingly.  The
defendant appeals, insisting that the evidence preponderates against
the judgment.  

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

RAYMOND PHILLIPS, v. LINCOLN BRASS WORKS, INC.,     

Court:TSC - Workers Comp Panel

For the Appellant:              For the Appellee:

Janet L. Hogan                  John T. March
603 Main Avenue, 5th Floor      P. O. Box 231
Knoxville, TN 37902             LaFollette, TN 37766

Judge: INMAN

First Paragraph:

This appeal involves two complaints for workers compensation benefits
which were consolidated for trial.  The first action was filed on
March 10, 1989 for low back injuries which allegedly were sustained on
February 17, 1989 and March 8, 1989.  On March 25, 1991 the plaintiff
filed another complaint alleging a low back injury on February 27,
1991.

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

B? CORPORATION d/b/a U.C. CONSULTANTS, 
v.
STEPHEN L. THOMAS and THOMAS & THORNGREN, INC., 

Court:TCA

J. MICHAEL JACOBS
STEVEN B. McCLOUD
ATTORNEYS FOR THE APPELLANT
311 White Bridge Rd.
Nashville, TN     37209

CRAIG V. GABBERT
C. MARK PICKRELL
ATTORNEYS FOR THE APPELLEES
1800 First American Center
315 Deaderick St.
Nashville, TN    37238
Judge:

First Paragraph:

This is the second appeal of a case involving a Nashville business,
B? Corporation, and  four of its former employees.  In 1994 B? sued
the four in the Chancery Court for Davidson County claiming they
violated covenants not to compete, breached fiduciary duties,
converted U.C. property, unfairly competed, and benefited from unjust
enrichment.  The chancery court granted one defendant, Kris Thorngren,
summary judgment.  B? then appealed to this court, and we reversed
the chancery courts judgment on several issues.   Later, the chancery
court granted summary judgment in favor of defendant Stephen Thomas. 
The chancery court also granted the corporate defendant Thomas &
Thorngren Inc.s motion for summary judgment.  B? appeals from those
judgments.  B? argues that the chancery court erred in ruling that
Mr. Thomas employment agreement expired prior to his departure from
B?.  B? also faults the chancery courts decision to grant Stephen
Thomas and Thomas & Thorngren summary judgment, and to award Stephen
Thomas his legal fees and costs. 

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

LINDA PATRICIA SHERWOOD EVANS,  v. DAVID WALLING EVANS, 

Court:TCA

DAVID F. GORE
RAMSEY B. LEATHERS, JR.
ELIZABETH L. ALLISON
BLACKBURN, SLOBEY, FREEMAN & HAPPELL
414 Union Street, Suite 2050
NationsBank Plaza
Nashville, Tennessee 37219
Attorneys for Plaintiff/Appellee

ROBERT H. PLUMMER, JR.
415 Bridge Street
P. O. Box 1361
Franklin, Tennessee 37065-1361
Attorney for Defendant/Appellant                         

Judge: BEN H. CANTRELL

First Paragraph:

The husband has appealed the trial courts judgment awarding the wife
a divorce on the ground of inappropriate marital conduct, awarding her
permanent alimony, and awarding her $5,000 out of a 1982 gift from her
mother as her separate property.  We modify the judgment as to the
gift and the alimony.

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

EDNA FORBES, 
v.
WILSON COUNTY EMERGENCY COMMUNICATION DISTRICT 911 BOARD and W. J.
MCCLUSKEY,
w/CONCURRENCE IN PART, DISSENT IN PART

Court:TCA

W. Gary Blackburn, Blackburn, Slobey, Freeman & Happell
of Nashville, For Appellants

Margaret L. Behm, Anne C. Martin, Dodson Parker & Behm
of Nashville, For Appellee
                       
Judge: W. FRANK CRAWFORD

First Paragraph:

This case involves the Tennessee open meetings law and the Tennessee
handicap discrimination law.  Plaintiff, Edna Forbes, alleges that
defendants, Wilson County Emergency Communication District 911 Board
and W.J. McCluskey, Chairman, violated the Tennessee Handicap
Discrimination Act and the Tennessee open meetings act.  After a jury
trial with the use of special interrogatories, the court entered an
order on the jury verdicts which found violations of both acts and 
awarded plaintiff $65,975.00 in back pay, $38,675.00 in front pay,
$250,000.00 in damages for humiliation and embarrassment, and
$50,000.00 for punitive damages.  The court also awarded plaintiffs
attorney $50,000.00 in fees and $6,455.00 in expenses.  

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

H. PATRICK HEFFERNAN,   
v.
HEFFERNAN, BALLINGER, POUNDS, AND YARBROUGH, INC. and LYNN H.
BALLINGER, CHARLES O. POUNDS and ROBERT A. YARBROUGH,

Court:TCA

Carl H. Langschmidt, Jr.,
ARMSTRONG ALLEN PREWITT GENTRY 
JOHNSTON & HOLMES, Memphis, Tennessee
Attorneys for Defendant/Appellant Heffernan, Ballinger, Pounds, and
Yarbrough, Inc.

Joseph W. Barnwell, Jr.,
EVANS & PETREE, Memphis, Tennessee
Attorney for Plaintiff/Appellee.
                         
Judge: FARMER, J.

First Paragraph:

This litigation was initiated by Appellee, H. Patrick Heffernan,
against Ballinger, Pounds and Yarbrough, Inc., formerly Heffernan,
Ballinger, Pounds and Yarbrough, Inc., and Glen H. Ballinger, Charles
O. Pounds and Robert A. Yarbrough, to recover the earned commissions
and share of corporate profits allegedly due him.  The trial court
referred the matter to the clerk and master who, after a hearing,
determined that Heffernan was entitled to compensation in the amount
of $44,242.92.  The masters report was affirmed by the chancellor who
entered judgment for Heffernan accordingly.  The Corporation has
appealed, presenting the following issues for our review: 1.  Whether
the Chancellor and the Clerk and Master erred in concluding that
Heffernan did not owe Heffernan, Ballinger, Pounds and Yarbrough, Inc.
$15,620.01 for commissions he placed in his own agency for his
personal benefit while he was still an employee of Heffernan,
Ballinger, Pounds and Yarbrough, Inc. 2.  Whether the Chancellor and
Clerk and Master erred in holding that the corporation should have
given Heffernan a partial distribution of profit of $22,680. 3. 
Whether the Chancellor and the Clerk and Master erred in concluding
that the plaintiff  was entitled to receive commissions which the
corporation owed him for the fiscal year ending May 31, 1987. 4. 
Whether the Chancellor and Clerk and Master erred in concluding that
Heffernan did not have to repay his loan of $15,000 to the
corporation.

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

SHERMAN ALEXANDER HENDERSON,v. W.G. LUTCHE, et al,  

Court:TCA

SHERMAN ALEXANDER HENDERSON, Pro Se
L.C.R.C.F.
Rural Route 1, Box 330
Tiptonville, Tennessee  38079

CHARLES W. BURSON
Attorney General and Reporter

PATRICIA C. KUSSMANN
Assistant Attorney General
Civil Rights and Claims Division
404 James Robertson Parkway
Suite 2000
Nashville, Tennessee  37243
ATTORNEYS FOR RESPONDENTS/APPELLEES                      

Judge: SAMUEL L. LEWIS

First Paragraph:

This is an appeal as of right by petitioner/appellant, Sherman
Alexander Henderson, from the judgment of the Chancery Court for
Davidson County dismissing petitioner's complaint.

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

JULIA JONES VS. SAMUEL ROBERT JONES, JR.
w/CONCURRING IN PART and DISSENTING IN PART

Court:TCA

GARY M. WILLIAMS
116 Shivel Drive
Hendersonville, Tennessee 37075
    Attorney for Plaintiff/Appellee

JOE P. BINKLEY
First American Center, Suite 2395
315 Deaderick Street
Nashville, Tennessee 37201

THOMAS F. BLOOM
500 Church Street, 5th Floor
Nashville, Tennessee 37219
(Appeal Only)
    Attorneys for Defendant/Appellant
                          
Judge: BEN H. CANTRELL

First Paragraph:

The trial court granted the parties a divorce, and awarded joint
custody of the four children of the marriage to both parents.  Actual
physical custody of the two older children was granted to the father;
physical custody of the two younger children was granted to the
mother.  The father appealed, arguing that he was the more fit parent,
that it was error to separate the children, and that he should have
been granted physical custody of all four.  We reverse the award of
joint custody to both parents.  In all other respects, we affirm the
trial court.

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

BILL KIGER, PAYNE C. GORDON, BARBARA BRIDGES, CHARLES CARMEN and JEAN
HOLMES, in their capacity as officers of the Nashville Electric
Service Employees Association, Inc.,
VS.
BETTY NIXON, DR. ALBERT BERRY, JAMES JOHNSON, KEVIN LAVENDER and TOM
JACKSON, in their capacities as members of the Electric Power Board
and the Electric Employees Civil Service and Pension Board of the
Metropolitan Government of Nashville and Davidson County, Tennessee,

Court:TCA

MARIAN F. HARRISON
JEFFREY RAPPUHN
WILLIS & KNIGHT
Nashville, Tennessee
Attorneys for Appellants

D. KIRK SHAFFER
NANCY A. VINCENT
STOKES & BARTHOLOMEW, P.A.
Nashville, Tennessee
Attorneys for Appellees
                          
Judge: ALAN E. HIGHERS

First Paragraph:

Petitioners are officers of the Nashville Electric Service Employees
Association (NESEA), who brought this action seeking to invalidate
the decision of the Board of Directors (Board) of the Nashville
Electric Service (NES) to outsource its data processing operations
to a private sector vendor. Petitioners alleged that the Board
exceeded its jurisdiction and violated certain provisions of the
Metropolitan Charter.  The trial court granted summary judgment in
favor of the Board, holding that the Boards decision was within its
jurisdiction and was supported by substantial and material evidence. 
It is from this judgment that petitioners have appeal

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

ARTHUR WELLING LAGRONE, VS. SALLI EULALIA LAGRONE, 

Court:TCA

Herbert R. Rich of Nashville
    For Appellee

Carol L. McCoy of Nashville
    For Appellant
                          
Judge: W. FRANK CRAWFORD

First Paragraph:

This appeal involves a dispute concerning the provisions of a Marital
Dissolution Agreement incorporated in a divorce decree and a Qualified
Domestic Relations Order entered pursuant thereto.

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

SYLVESTER LOGAN, v. HOWARD RICHARDS, 

Court:TCA

Jimmie McIntyre of Memphis
Richard F. Vaughn of Memphis
For Appellant

R. Linley Richter of Memphis
For Appellee

                          
Judge: CRAWFORD

First Paragraph:

Defendant, Howard Richards, appeals from the judgment of the trial
court, sitting without a jury, that awarded damages to plaintiff,
Sylvester Logan.

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

CHARLES W. MCDONALD, VS. JOYCE L. COTTON

Court:TCA

Charles W. McDonald of Memphis
    Pro Se
    
William L. Hagan
    Friedman, Sissman and Heaton, P.C. of Memphis
    For Defendant-Appellee                          

Judge: W. FRANK CRAWFORD

First Paragraph:

This appeal involves a suit by an attorney against his former client
for attorneys fees due pursuant to a contract and for a statutory
attorneys lien.  The complaint of plaintiff, Charles W. McDonald,
filed November 22, 1994, alleges that he is a duly licensed attorney
in the State of Tennessee, and that he had a written contract of
employment with defendant, Joyce LaFaye Cotton, to represent her in
connection with her wrongful termination by the State of Tennessee
Department of Youth Development.  The contract of employment was
attached as Exhibit A to the complaint.  The complaint avers that as a
result of plaintiffs legal services, the defendant was reinstated to
her position as a state employee and awarded back pay from the date of
her termination.  Plaintiff avers that the fees due for legal services
is $14,981.00.  

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

ESTATE OF FRED MOORE, JR. VS. MRS. FRED (LONDA) MOORE, JR

Court:TCA

E.E. EDWARDS, III
JAMES A. SIMMONS
1707 Division Street, Suite 100
Nashville, Tennessee  37203-2701
    ATTORNEYS FOR PLAINTIFF/APPELLANT

JAMES V. DORAMUS
GREGORY MITCHELL
Doramus & Trauger
The Southern Turf Building
222 Fourth Avenue North
Nashville, Tennessee  37219-2102
    ATTORNEYS FOR DEFENDANT/APPELLEE
                          
Judge: SAMUEL L. LEWIS

First Paragraph:

Plaintiff/appellant, Jennifer Ellen Moore Akin, appeals from the
chancery court's decision to deny her motion for summary judgment and
to grant the motion for summary judgment of defendant/appellee, Mrs.
Fred (Londa) Moore, Jr.

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

THERRELL PRESSGROVE and UNITED INSURANCE SERVICE, INC. 
VS. 
FRANK BURNS and ELIZABETH BURNS

Court:TCA

STEPHEN R. LEFFLER
Memphis, Tennessee
Attorney for Appellants

LEWIS K. GARRISON
Memphis, Tennessee
Attorney for Appellee
                          
Judge: ALAN E. HIGHERS

First Paragraph:

Plaintiff brought this action to enforce a settlement agreement
resolving a suit for interference with the peaceful enjoyment of
plaintiffs business premises.  The trial court held that there
existed an enforceable settlement agreement, and entered judgment in
favor of plaintiff.  Defendants argue on appeal that the agreement was
unenforceable because their attorney lacked authorization to offer the
subject settlement amount.  We find defendants contention to be
without merit; therefore, we affirm the trial courts judgment.

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

MICHELLE QUINN, v. SHELBY COUNTY,   

Court:TCA

CARROLL C. JOHNSON
Memphis, Tennessee
Attorney for Defendant/Appellant
                        
Judge: ALAN E. HIGHERS

First Paragraph:

In this action for personal injury, Shelby County appeals from the
trial courts judgment awarding compensation for permanent partial
disability and chiropractic fees to plaintiff. The county contends
that the trial court erred in finding that plaintiff suffered
permanent partial disability as a result of the accident and in
permitting plaintiff to recover her chiropractic fees.  We find these
allegations of error to be well-taken; therefore, we reverse the trial
courts judgment.

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

DONALD AND MELISSA RUSSELL, v. ROBERT SCOTT GILES,      

Court:TCA

J. HAROLD NICHOLS
SPICER, FLYNN & RUDSTROM
Memphis, Tennessee
Attorney for Appellant

RUSSELL J. JOHNSON
Memphis, Tennessee
Attorney for Appellees
                      
Judge: ALAN E. HIGHERS

First Paragraph:

This interlocutory appeal involves a suit to recover damages for
personal injury and property damage arising out of an automobile
accident.  Defendant, Robert Scott Giles, appeals  from the  trial
courts denial of his motion for summary judgment.

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

MICHELLE YOUNG (SMITH), v. RODNEY SMITH,

Court:TCA

Attorneys:  N/A                        

Judge: W. FRANK CRAWFORD,

First Paragraph:

O R D E R
The Opinion in this case was filed August 14, 1996, and on August 28,
1996, plaintiff-appellant lodged with the Clerk of this Court
Plaintiff/Appellants Petition for Rehearing.

URL:http://www.tba.org/tba_files/TCA/SMITHROD.ORD.WP6
Opinion-Flash

STATE OF TENNESSEE v. WILLIAM S. DEDMON

Court:TCCA

For the Appellant:              For the Appellee:

Gerald L. Melton                Charles W. Burson
District Public Defender        Attorney General of Tennessee
     and                        and
Jeannie Kaess                   Charlotte H. Rappuhn
Assistant Public Defender       Assistant Attorney General of Tennessee     
201 West Main St.               450 James Robertson Parkway     
Murfreesboro, TN 37130          Nashville, TN 37243-0493
(ON APPEAL)
                                William C. Whitesell, Jr.
Russell N. Perkins              District Attorney General
Assistant Public Defender       and         
201 West Main St.               John W. Price
Murfreesboro, TN 37130          Assistant District Attorney General
(AT TRIAL)                      303 Rutherford County Courthouse
                                Murfreesboro, TN                           

Judge: Joseph M. Tipton

First Paragraph:

The defendant, William S. Dedmon, was convicted by a jury in the
Rutherford County Criminal Court for forgery, a Class D felony.  As a
Range I, standard offender, he was sentenced to a minimum term of two
years to be served on probation.  In this appeal as of right, the
defendant contends that (1) the evidence was insufficient to support
his conviction, and (2) the trial court erred in admitting four
savings withdrawal slips into evidence.  We conclude that the evidence
was sufficient and that the trial court did not commit error.

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

STATE OF TENNESSEE, v. ERIC W. FRIEDL,

Court:TCCA

FOR THE APPELLANT:      FOR THE APPELLEE:

JAMES R. GARTS, JR.     CHARLES W. BURSON
One Commerce Square     Attorney General and Reporter
Suite 2700  
Memphis, TN  38103      ELLEN POLLACK
                        Attorney Generals Office
                        450 James Robertson Parkway
                        Nashville, TN  37243

                        JOHN PIEROTTI
                        District Attorney General

                        CHARLES BELL
                        Assistant District Attorney
                        201 Poplar Avenue
                        Memphis, TN  38103                          

Judge: JERRY L. SMITH

First Paragraph:

Appellant Eric W. Friedl entered a plea of guilty to the offense of
vehicular assault.  As part of the plea agreement, the State
recommended that he receive a sentence of 1.8 years confinement.  No
agreement was reached with respect to the issue of whether Appellants
sentence would be suspended in whole or in part; that matter was to be
determined by the trial court following a hearing.  The trial court
accepted the guilty plea and, following a hearing, granted Appellant a
partial suspension of sentence but ordered him to serve 120 days of
weekend confinement in the county workhouse.  Appellant claims in this
appeal that he should have received full suspension of his sentence. 
He claims that the trial court adopted an erroneous standard in
denying full suspension of the sentence and that there is no proof
that confinement is necessary to deter further acts of drunken
driving.

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

STATE OF TENNESSEE, v. PATRICK O. GIPSON,
STATE OF TENNESSEE, v. JIMMY G. HARMON  

Court:TCCA

FOR THE APPELLANTS:             FOR THE APPELLEE:

LIONEL R. BARRETT, JR.          CHARLES W. BURSON
Washington Square Two-Suite     Attorney General and Reporter
222 Second Avenue, North
Nashville, TN 37201             KAREN M. YACUZZO
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                VICTOR S. JOHNSON
                                District Attorney General

                                BERNARD F. MCEVOY
                                Assistant District Attorney General
                                Washington Square-Suite 500
                                222 Second Avenue, North
                                Nashville, TN                      

Judge: DAVID H. WELLES

First Paragraph:

These are appeals pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure.  Each Defendant appeals from separate orders of
the trial court finding him to be an habitual traffic offender.  On
appeal, each Defendant argues that the trial court erred by not
dismissing the States petition to have him declared an habitual
offender on the grounds that the petition was barred by the District
Attorney Generals delay in bringing the petition or by the equitable
doctrine of laches.  We disagree and affirm the judgments of the trial
court.

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

FRANK GLENN HALL,v. DAVID MILLS, WARDEN, and STATE OF TENNESSEE

Court:TCCA

For the Appellant:              For the Appellee:

Frank Glenn Hall, Pro Se        Charles W. Burson
Turney Center Ind. Prison       Attorney General and Reporter
Route No. 1
Only, TN   37140-9709   
                                Cyril V. Fraser
                                Assistant Attorney General                          
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493
                                                
                                Joseph D. Baugh, Jr.                                
                                District Attorney General

                                Ronald Davis
                                Asst. District Attorney General
                                
Judge: David G. Hayes

First Paragraph:

The appellant, Frank Glenn Hall, appeals as of right from the Hickman
County Circuit Court's denial of his application for writ of habeas
corpus.  He is currently confined at the Turney Center facility of the
Department of Correction where he is serving a fifty year sentence for
ten armed robbery convictions.  The appellant's convictions, resulting
from a jury verdict in Rutherford County, were affirmed by this court
on appeal.  State v. Frank Glenn Hall, No. 88-186-III, (Tenn. Crim.
App. at Nashville, Feb. 9, 1989).  In February, 1992, the appellant
petitioned for post-conviction relief claiming ineffectiveness of
trial counsel.  The Rutherford County Criminal Court denied the
appellant's claim for post-conviction relief.  This dismissal was
affirmed by this court.  Frank Glenn Hall v. State, No.
01C01-9205-CC-00157 (Tenn. Crim. App., Sept. 8, 1992).   

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

STATE OF TENNESSEE, v. SHERRY HAYNES,

Court:TCCA

FOR THE APPELLEE:               FOR THE APPELLANT:

SHARA A. FLACY                  CHARLES W. BURSON
District Public Defender        Attorney General and Reporter

JOHN R. WINGO                   KAREN M. YACUZZO
Assistant Public Defender       Assistant Attorney General
128 North Second Street         450 James Robertson Parkway
Pulaski, TN 38478               Nashville, TN 37243-0493

                                MIKE BOTTOMS
                                District Attorney General
                                252 North Military Avenue
                                Lawrenceburg, TN 38464                          

Judge: DAVID H. WELLES

First Paragraph:

This is an appeal pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure.  The State of Tennessee appeals from a judgment
of the trial court which allowed the Defendant to serve her four-year
sentence for vehicular homicide and vehicular assault in the Community
Corrections Program.  We reverse the trial courts judgment and remand
this case for further sentencing proceedings.

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

STATE OF TENNESSEE, v. CHARLES EDWARD JACKSON,
w/CONCURRING OPINION

Court:TCCA

FOR THE APPELLANT:                  FOR THE APPELLEE:


ARDENA J. GARTH                     CHARLES W. BURSON
District Public Defender            Attorney General & Reporter

DONNA ROBINSON MILLER               DARIAN B. TAYLOR
Asst. District Public Defender      Asst. Attorney General
701 Cherry St., Suite 300           450 James Robertson Pkwy.
Chattanooga, TN  37402              Nashville, TN  37243-0493

                                    GARY D. GERBITZ
                                    District Attorney General

                                    LELAND DAVIS
                                    Asst. District Attorney General
                         
Judge: JOHN H. PEAY

First Paragraph:

The defendant was charged in the indictment with attempted
first-degree murder.  He was found guilty at a jury trial and was
sentenced to twenty-two years in the Department of Correction.  In
this appeal as of right, the defendant challenges the sufficiency of
the convicting evidence and the length of his sentence.  We find that
the defendants issues are without merit,and his conviction and
sentence are therefore affirmed.

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

STATE OF TENNESSEE, v. LESLIE HUEL SMITH,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

Terry J. Canady                 Charles W. Burson
211 Printers Alley Bldg.        Attorney General & Reporter
Suite 400                       450 James Robertson Parkway
Nashville, TN 37201             Nashville, TN 37243-0497
(On Appeal)
                                Christina S. Shevalier
Mark J. Fishburn                Assistant Attorney General
Parkway Towers, Suite 2121      450 James Robertson Parkway
404 James Robertson Parkway     Nashville, TN 37243-0493
Nashville, TN 37219
(At Trial)                      Victor S. Johnson, III
                                District Attorney General
                                222 Second Avenue North, Suite 500
                                Nashville, TN 37201-1649
                        
                                Jon P. Seaborg
                                Assistant District Attorney General
                                222 Second Avenue North, Suite 500
                                Nashville, TN 37201-1649

                                Patty S. Ramsey
                                Assistant District Attorney General
                                222 Second Avenue North, Suite 500
                                Nashville, TN 37201-1649                         

Judge: Joe B. Jones

First Paragraph:

The appellant, Leslie Huel Smith, was convicted of murder in the
second degree, a Class A felony, and theft under $10,000, a Class D
felony, by a jury of his peers.  The trial court found that the
appellant was a standard offender and imposed the following Range I
sentences: (a) murder second degree, confinement for twenty five (25)
years in the Department of Correction and (b) theft, confinement for
eight (8) years in the Department of Correction.  These sentences are
to be served consecutively to an Alabama sentence.  In this case, the
appellant presents three issues for review.  He contends that the
evidence is insufficient to support his convictions, the trial court
erred in denying his motion to dismiss on the ground the state did not
try him within the time constraints of the Interstate Compact on
Detainers, and he was denied his constitutional right to the effective
assistance of counsel.  

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

STATE OF TENNESSEE, v. KENNETH WILSON,

Court:TCCA

FOR THE APPELLANT:      FOR THE APPELLEE:

GERALD STANLEY GREEN    CHARLES W. BURSON
301 Washington Avenue   Attorney General and Reporter
Memphis, TN 38103
                        BERNARD W. GREENE
                        Assistant Attorney General
                        500 Charlotte Avenue
                        Nashville, TN 37243-0496

                        JOHN W. PIEROTTI
                        District Attorney General

                        KEVIN RARDIN
                        Assistant District Attorney General
                        Shelby County District Attorneys Office
                        
Judge: DAVID H. WELLES

First Paragraph:

This is an appeal as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure.  The Defendant was convicted on a jury
verdict of theft of property with a value over $60,000.  He appeals
his conviction presenting four issues for review: (1) That the trial
court erred when it instructed criminal responsibility and by not
instructing ignorance or mistake of fact; (2) that the law enforcement
officials exhibited outrageous conduct constituting entrapment, and
that the trial court erred in not instructing as to entrapment; (3)
that the evidence presented at trial was insufficient to support the
verdict of guilt; and (4) that the proof of the value of the shirts
was insufficient to sustain a conviction for theft over $60,000.  

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

STATE OF TENNESSEE, v. SANDY EUGENE WOMACK,

Court:TCCA

For the Appellant:              For the Appellee:

Collier W. Goodlett             Charles W. Burson
Asst. Public Defender           Attorney General and Reporter
109 South Second Street 
Clarksville, TN  37040          Mary Ann Queen
                                Legal Assistant
                                William David Bridgers
                                Assistant Attorney General                          
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                John Wesley Carney, Jr.
                                District Attorney General

                                Arthur Bieber
                                Asst. District Attorney General
                                204 Franklin Street, Suite 200
                                Clarksville, TN  37040                         

Judge: David G. Hayes

First Paragraph:

The appellant, Sandy Eugene Womack, appeals from the Montgomery County
Criminal Courts denial of his petition seeking post-conviction
relief.  The appellant was convicted in 1989 of one count of armed
robbery and one count of robbery.  The appellant is currently serving
a 50 year sentence and a concurrent 15 year sentence for these
convictions.  The convictions and sentences were affirmed on direct
appeal.  State v. Womack, No. 01C01-9003 CC-00077 (Tenn. Crim. App. at
Nashville), perm to appeal denied, (Tenn. 1990).  In this appeal, the
appellant contends that he received ineffective assistance of counsel
at trial.

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

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