TBALink Opinion-Flash

October 04, 1996 -- Volume #2 -- Number #85

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:
01-New Opinons From TSC
00-New Opinons From TSC-Rules
04-New Opinons From TSC-Workers Comp Panel
27-New Opinons From TCA
08-New Opinons From TCCA

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George Dean
TBALink Chief Editor


STATE OF TENNESSEE, EX REL.,        
Appellant,                  
v.                          
BROOK THOMPSON, State Coordinator of Elections          
RILEY DARNELL, Secretary of State,                  
CHARLES BURSON, Attorney General of Tennessee           
DON SUNDQUIST,Governor of the State of Tennessee            
PENNY WHITE,Justice of the Supreme Court of Tennessee,
In their respective official capacities,
Defendants                  
                                                        
STATE OF TENNESSEE EX REL., LEWIS LASKA                 
Appellant,                  
                            
BROOK THOMPSON, Coordinator of Elections,               

Court:TSC

FOR APPELLANT HOOKER            FOR STATE DEFENDANTS
John J. Hooker, Pro Se              
Robert L. Delaney               Charles W. Burson
Nashville                       Attorney General & Reporter
                            
FOR APPELLANT LASKA             Andy D. Bennett
Bob Lynch, Jr.                  Associate Chief Deputy
Nashville                       
                                Michael W. Catalano
FOR INTERVENOR KING             Associate Solicitor General
John K. King, Pro Se                
Knoxville                       
                         
Judge: BY THE SPECIAL COURT

First Paragraph:

These consolidated cases arise from the efforts of appellants, Lewis
Laska and John Jay Hooker, to have their names placed on the ballot
for the August 1, 1996, statewide election to the office of Supreme
Court Justice.  The deadline for filing nominating petitions for this
election was 12:00 noon on May 16, 1996, in accordance with T.C.A. 
2-5-101.

URL:http://www.tba.org/tba_files/TSC/HOOKER2.OPN.WP6
Opinion-Flash

DANNY J. ADAMS,     
v.
LIBERTY MUTUAL INSURANCE COMPANY and PLUMLEY COMPANIES, INC., and U.
S. TOOL & GAUGE, INC.,
w/JUDGMENT ORDER

Court:TSC - Workers Comp Panel

FOR APPELLANT:                  FOR APPELLEES:  

Catherine B. Clayton            Lisa June Cox
Spragins, Barnett, Cobb         64 Lynoak Cove
& Butler                        Jackson, TN 38305
Post Office Box 2004
Jackson, TN 38302-2004          Floyd S. Flippin
                                Adams, Ryal & Flippin
                                Post Office Box 160
                                Humboldt, TN 38343
                         
Judge: CLARK

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.
Liberty Mutual Insurance Company (Liberty Mutual) and Plumley
Companies, Inc. (Plumley) have appealed the trial courts decision
requiring them to pay plaintiff workers compensation benefits based
on fifty percent permanent impairment to the body as a whole.  Liberty
Mutual and Plumley raise four issues: 1.    Should Plumley be
responsible for a shoulder injury that did not occur during
plaintiffs employment there? 2. Is plaintiffs shoulder injury
claim against Plumley barred by his misrepresentation of his physical
condition? 3.   Is plaintiffs claim of a shoulder injury barred by
his failure to give timely notice to Plumley? 4.    Should plaintiffs
subsequent employer, defendant U. S. Tool & Gauge (U. S. Tool) be
responsible for any aggravation to his shoulder where plaintiff did
not seek medical treatment until he had worked for U. S. Tool for
about five months?


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

FLORINE VANDYKE 
v. 
PLUMLEY RUBBER COMPANY and LIBERTY MUTUAL INSURANCE CO.,    
w/JUDGMENT ORDER

Court:TSC - Workers Comp Panel

For Appellants:                     For Appellee:

Catherine B. Clayton                Ricky L. Boren
Spragins, Barnett, Cobb & Butler    Hill Boren 
Jackson, Tennessee                  Jackson, Tennessee
                          
Judge: White

First Paragraph:

This workers compensation appeal has been referred to the Special
Workers Compensation Appeals Panel of the Supreme Court in accordance
with Tennessee Code Annotated section 50-6-225 (e)(3) for hearing and
reporting of findings of fact and conclusions of law.  In this appeal,
the employer, Plumley Rubber Company and the insurance carrier,
Liberty Mutual, contend the trial court erred in granting judgment for
medical expenses to the employee after they had been paid by the
employees health plan.  The panel agrees and reverses the judgment of
the trial court.

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

VICTORIA NGOZI ANENE v. JOHN NNAMDI ANENE

Court:TCA

JOHN R. MELDORF, III, OF HIXSON FOR APPELLANT
PHILLIP C. LAWRENCE OF CHATTANOOGA FOR APPELLEE
                        
Judge: Goddard

First Paragraph:

The Defendant, John Nnamdi Anene appeals a judgment of the Circuit
Court of Hamilton County granting Victoria Ngozi Anene's petition for
divorce and awarding her custody of their three minor children.  Mr.
Anene raises five issues on appeal, two of which are jurisdictional. 
(See appendix.)  As to the jurisdictional issues, we find that the
Circuit Court of Hamilton was correct in assuming jurisdiction to hear
both the divorce and custody issues.  We find the remaining issues to
be without merit.

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

GROVER R. BASS, v. JOHN C. KIMBROUGH,           

Court:TCA

ROGER A. STONE
STONE, HIGGS, and DREXLER
Memphis, Tennessee
Attorney for Appellant

WILLIAM A. COHN
THE COHN LAW FIRM
Cordova, Tennessee
Attorney for Appellee
                      
Judge: ALAN E. HIGHERS

First Paragraph:

This case concerns liability in connection with the default on a
promissory note for the purchase of stock in a closely held
corporation.  After a bench trial, the trial court awarded a judgment
in favor of the plaintiff and also awarded attorneys fees to
plaintiff.  Two principal issues are before the Court.  The first is
whether the plaintiff gave the necessary parties proper notice of
default under the terms of the promissory notes executed by the
parties.  The second is whether the guarantor of the promissory notes
is liable under the personal guaranty if proper notice was, in fact,
given.  We find that the trial court was correct in its holding that
proper notice was given and that the personal guarantor was liable. 
Accordingly, we affirm the trial courts conclusion.

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

BELLSOUTH TELECOMMUNICATIONS, INC.,     
v.
KEITH BISSELL, STEVE HEWLETT, SARA KYLE, Constituting the Tennessee
Public Service Commission,

Court:TCA

FOR APPELLANT:                  FOR APPELLEES:

Bennett L. Ross                 Dianne F. Neal
Nashville, Tennessee            Public Service Commission
                                Nashville, Tennessee

FOR INTERVENOR                  FOR TENNESSEE CONSUMERS:
AT? COMMUNICATIONS, INC:       Charles W. Burson
                                Attorney General & Reporter
Val Sanford
John Know Walkup                Michael E. Moore
Nashville, Tennessee            Solicitor General
                            
                                L. Vincent Williams
                                Consumer Advocate Division
                                Nashville, Tennessee
                         
Judge: BEN H. CANTRELL

First Paragraph:

The Tennessee Public Service Commission ordered the completion of a
previously authorized investigation of the future earnings of
BellSouth Telecommunications, despite legislative developments that
stripped the Commission of its authority to use such an investigation
to set telephone rates.  BellSouth filed a petition with this court
for review of the PSCs order, arguing that completion of the
investigation was inconsistent with the legislative purpose.  We
reverse the Commissions order and remand the case for further
consideration by the Tennessee Regulatory Commission.

URL:http://www.tba.org/tba_files/TCA/BELLS1.OPN.WP6
Opinion-Flash

ARTHUR BLAIR, v. MARILYN BADENHOPE, 

Court:TCA

CHARLES G. CURRER, Knoxville, for Petitioner-Appellant.

JOHN T. MILBURN ROGERS, ROGERS, LAUGHLIN, NUNNALLY, HOOD & CRUM,
Greeneville, for Respondent-Appellee.
                         
Judge: Franks

First Paragraph:

Joy Badenhope is the child of Susan Badenhope and Arthur Blair.  Susan
Badenhope, a resident of North Carolina, died when the child was less
than one year old.  After her death, Joy began residing with her
maternal grandmother, Marilyn Badenhope, in Tennessee.  The
grandmother was granted custody by a North Carolina court in an action
for custody she filed some two months after the mothers death.  The
father soon thereafter moved to Tennessee and filed an action in
Tennessee to increase visitation and attain custody.

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

RICHARD BRIGGS and STEPHANIE R. BRIGGS,            
v.
RIVERSOUND LIMITED PARTNERSHIP, WILLIAM S. NIX d/b/a WSN ENTERPRISES,
GENERAL PARTNER, and DARYL WAGNER,

Court:TCA

DAVID N. GARST, Lewis, King, Krieg & Waldrop, P.C., Knoxville for
appellant.

DAVID E. SMITH, Hodges, Doughty & Carson, Knoxville, for Appellee.

Judge: McMurray

First Paragraph:

The single issue in this case is whether a remote purchaser  of a home
may maintain a negligence action against the builder of the home
despite a lack of contractual privity.  The trial court granted
summary judgment in favor of the defendant and this appeal resulted. 
We reverse the judgment of the trial court.

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

ADA BELL BROWN and BEVERLY J. EVERETT, MARION EVERETT BARTON, and
GERALD JOSEPH EVERETT,                  
v.
RALPH EVERETT (individually and as Executor of the Estate of Joseph
Robert Everett), HERBERT D. EVERETT, JAMES R. EVERETT, DORIS D.
HIGGINS, KATIE T. TOMLINSON and LAURA SHAW,

Court:TCA

DAVID R. SWAFFORD, SWAFFORD & SWAFFORD, Pikeville, for
Plaintiffs-Appellees.

EDWIN Z. KELLY, JR., KELLY, KELLY & GOUGER, P.C., Jasper, for
Defendants-Appellants, Ralph Everett, James R. Everett, Doris D.
Higgins, Katie G. Tomlinson, and Laura Shaw.
                          
Judge: Franks

First Paragraph:

In this contest of the will of the deceased, Joseph Everett, a jury
returned special verdicts that the deceased did not have sufficient
mental capacity to make a valid will, and Joseph Robert Everett,
Deceased, was unduly influenced by Ralph Everett on March 11 to the
extent that such influence amounted to coercion, destroying the free
will of the deceased and substituting his will for the deceased and
compelling the deceased to make a disposition he otherwise would not
have made.

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

DANA LYNNE BURLESON, v. MICKEY DWAYNE BURLESON, 

Court:TCA

James F. Butler,
SPRAGINS, BARNETT, COBB & BUTLER, Jackson, Tennessee
Attorney for Defendant/Appellant.

Carthel L. Smith, Jr., Lexington, Tennessee
Attorney for Plaintiff/Appellee.
                         
Judge: FARMER

First Paragraph:

Defendant-Appellant, Mickey Dwayne Burleson (Father), appeals the
trial courts judgment denying his petition to modify the child
custody provisions of the parties final divorce decree.

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

FAYE LOUISE TAYLOR CHADWELL 
v. 
ALBERT CHADWELL and CONSOLIDATION COAL COMPANY  

Court:TCA

JERROLD L. BECKER and LUCINDA M. ALBISTON OF KNOXVILLE FOR APPELLANTS

JOHNNY V. DUNAWAY OF LaFOLLETTE OF KNOXVILLE FOR APPELLEE
                         
Judge:  Goddard

First Paragraph:

In this post-divorce proceeding, the Chancellor found that certain
assets owned by Albert Chadwell at the time of the parties divorce
were marital assets and that his former wife, Faye Louise Taylor
Chadwell, was entitled to a judgment against him of $94,320 which
included interest from the date of the divorce.  The Chancellor also
impressed a lien against certain real estate originally owned by Mr.
Chadwell, who later purported to transfer an interest to his present
wife.  Both the real estate and the home Mr. Chadwell erected thereon
were paid for in part with the assets in dispute in this appeal.

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

JOSEPH COLLINS, III  v. HELENE LAROSE CLEGG,  

Court:TCA

Attorneys:  N/A                        

Judge: HOLLY KIRBY LILLARD

First Paragraph:

RULE 10 ORDER AND OPINION
This matter appears appropriate for consideration pursuant to Rule
10(a) of the Rules of the Court of Appeals of Tennessee. The facts in
this case are well summarized in the Memorandum Opinion by the
Honorable Joe G. Riley: The mother and father lived together in
Michigan for approximately fifteen (15) years but were never married. 
They had a daughter, Cnanah, now seven (7) years of age.

URL:http://www.tba.org/tba_files/TCA/COLLINS3.OPN.WP6
Opinion-Flash

MICHAEL SCOTT EVANS,    v. KAREN MARIE BISSON STEELMAN, 
w/DISSENTING OPINION & CONCURRING OPINION

Court:TCA

CLARK LEE SHAW
2525 Lebanon Road
Nashville, Tennessee 37214

STEVEN M. MOORE
30 Music Square West, Suite 301
Nashville, Tennessee 37203
Attorneys for Petitioner/Appellant

PHILLIP W. DUER
MARY ARLINE EVANS
214 Third Avenue, North
Nashville, Tennessee 37201
Attorneys for Respondent/Appellee

CHARLES W. BURSON
Attorney General & Reporter

JENNIFER HELTON SMALL
Deputy Attorney General
1510 Parkway Towers
Nashville, Tennessee
Intervenor
                          
Judge: BEN H. CANTRELL

First Paragraph:

In this appeal we are asked to re-visit the question of whether a man
who fathers a child by a married woman may legitimate the child.  The
Davidson County Juvenile Court held that the legitimation statute
allowing a putative father to legitimate a child not born in lawful
wedlock applied only to children born to unmarried women.  If that
interpretation holds, the appellant attacks the constitutionality of
the statute on due process and equal protection grounds.  We affirm
the lower courts interpretation of the statute and reject the
appellants contention that the statute is constitutionally defective.

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

JEANNIE FARROW,             
v.
CHARLES F. BARNETT AND FORT SANDERS PARKWEST MEDICAL CENTER,    

Court:TCA

CARL R. OGLE, JR.
P.O. Box 129
Jefferson City, TN 37760
ATTORNEY FOR PLAINTIFF/APPELLANT

ROBERT H. WATSON, JR.
JOHN C. DUFFY
Watson, Hollow and Reeves, P.L.C.
1700 First Tennessee Plaza Tower
800 South Gay Street
Post Office Box 131
Knoxville, Tennessee 37901-0131
ATTORNEYS FOR DEFENDANT/APPELLEE
CHARLES F. BARNETT, M.D.

F. MICHAEL FITZPATRICK
Arnett, Draper & Hagood
2300 First Tennessee Plaza
Knoxville, Tennessee 37929-2300
ATTORNEY FOR DEFENDANT/APPELLEE
FORT SANDERS PARKWEST MEDICAL CENTER

Judge: SAMUEL L. LEWIS

First Paragraph:

This is an appeal by plaintiff/appellant, Jeannie Farrow, from two
orders of the trial court which granted the motion to dismiss filed by
defendant/appellee, Charles F. Barnett, M.D. (Dr. Barnett), and the
motion for summary judgment filed by defendant/appellee, Fort Sanders
Parkwest Medical Center (the Medical Center).  In its orders, the
trial court concluded that plaintiff failed to file her action within
the applicable statute of limitations.  The facts out of which this
controversy arose are as follows.

URL:http://www.tba.org/tba_files/TCA/FARROWJ2.OPN.WP6
Opinion-Flash

LAMAR FLETCHER, v. JOHN W. CAMPBELL,

Court:TCA

Lamar Fletcher, Pro Se

Donnie E. Wilson, County Attorney, Memphis, Tennessee
Danny Presley, Executive Assistant County Attorney, Memphis, Tennessee
For Defendant/Appellee.
                        
Judge: FARMER

First Paragraph:

Plaintiff-Appellant, Lamar Fletcher (Fletcher), appearing pro se,
appeals the trial courts order granting the motion to dismiss filed
by Defendant-Appellee, JohnW. Campbell (Campbell). In May 1995,
Fletcher filed a complaint for fraud against Campbell.  The essence of
Fletchers fraud claim was that Campbell, Fletchers former attorney,
testified untruthfully at a December 1992 hearing held on Fletchers
petition for post-conviction relief in a criminal case and that,
relying upon these misrepresentations, the criminal court judge
hearing the case denied Fletchers petition.

URL:http://www.tba.org/tba_files/TCA/fletchr2.opn.WP6
Opinion-Flash

DEBRA JEWELL YOUNG FORD, v. DENNIS CLIFFORD FORD,  

Court:TCA

STEPHEN DAVIS CRUMP, Chancey, Kanavos & Crump, Cleveland, for
Appellant.

ROGER E. JENNE, Jenne, Scott & Bryant, Cleveland, for appellee.
                        
Judge: McMurray

First Paragraph:

This appeal arises from the judgment of the trial court which, among
other things, awarded a divorce to the defendant, provided for custody
of the parties' minor children and made a division of the marital
estate.  We affirm the judgment of the trial court.

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

PAMELA LEMOINE FORD, v. MICHAEL BURKE FORD,     

Court:TCA

MARTIN B. DANIEL
Memphis, Tennessee
Attorney for Appellant

MARK D. JOHNSTON
Dyersburg, Tennessee
Attorney for Appellee
                          
Judge: ALAN E. HIGHERS

First Paragraph:

In this post-divorce proceeding, Pamela Ford (wife) filed a petition
to modify child support and alimony.  Although the trial court
declined to increase alimony,  the court increased the amount of child
support that Michael Ford (husband) was obligated to pay based upon
his increased income.  Wife has appealed and argues that the trial
court erred in several respects.  First, she asserts that the trial
court erred in holding that the husbands receipt of principal from an
irrevocable trust is not gross income as that term is defined within
the child support guidelines.  Next, she contends that the trial court
improperly failed to consider the value of the trust in increasing
child support.  Furthermore, wife argues that the trial court should
have imputed income to husband based upon his voluntary unemployment. 
Finally, wife argues that the trial court erred in denying her request
for an increase in alimony.  For the reasons stated below, the
judgment below is affirmed in part, reversed in part, and remanded for
further proceedings.

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

FRED JOHNS, ADMINISTRATOR OF THE ESTATE OF SUE EVA JOHNS,
v.
TAKOMA ADVENTIST HOSPITAL,

Court:TCA

DAVID W. BLANKENSHIP, Kingsport, for Plaintiff/Appellant.

ROY F. SATTERWHITE, III, and JAMES H. LONDON, LONDON, AMBURN &
THOMFORDE, P.C., Knoxville, for Defendant/Appellee.
                        
Judge: Franks

First Paragraph:

In this action for damages for personal injuries to the deceased, the
complaint alleged the deceased "was placed in a room while in
defendant hospital, and on April 18, 1991, she was found lying on the
floor with injuries about her head and face."  It was further alleged
that "it was not learned until well after her death, in conversation
with the physicians of the plaintiff decedent, that the decedent more
likely would have survived for many years had she not fallen . . ."

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

SUSAN KAY MALIK, v. KAFAIT U. MALIK,    

Court:TCA

RUSSELL C. WINSTON
Memphis, Tennessee
Attorney for Appellant

JAMES B. FISHER, JR.
Memphis, Tennessee
Attorney for Appellee
                      
Judge: ALAN E. HIGHERS

First Paragraph:

In this post-divorce proceeding, Kafait U. Malik (husband) appeals
from the trial courts judgment ordering him to cash out and/or borrow
against his pension and retirement funds in order to satisfy the
courts prior distribution of marital property to Susan K. Malik
(wife).

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

MARK McCAIN,v. AIRPORT HONDA and BOB RUTHERFORD,

Court:TCA

KEVIN W. SHEPHERD, Maryville, for Plaintiff-Appellant.

BEECHER A. BARTLETT, JR., and ADRIENNE L. ANDERSON, KRAMER, RAYSON,
LEAKE, RODGERS & MORGAN, Knoxville, for Defendants Appellees.
                         
Judge: Franks

First Paragraph:

In this action asking damages for alleged retaliatory discharge, the
Trial Court granted employer summary judgment, and plaintiff has
appealed.  We affirm.

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

BILLY GWINN MITCHELL,
v.
SAM F. COLE, JR., Substitute Trustee, ESTATE OF PRUDENCE REYNOLDS, and
GERALD W. PICKENS,Administrator CTA,

Court:TCA

Attorneys: N/A                         

Judge: Hewitt P. Tomlin

First Paragraph:

ORDER
Plaintiff has timely filed a petition to rehear in this cause. After
full consideration the petition is respectfully denied.

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

TERI MICHELLE PARKER, v. RICHARD KEN PARKER, 

Court:TCA

For the Plaintiff/Appellant:    For the Defendant/Appellee:

Robert Clive Marks              Laurence M. McMillan, Jr.
Clarksville, Tennessee          Clarksville, Tennessee
                       
Judge: HOLLY KIRBY LILLARD

First Paragraph:

In this case, Plaintiff-Appellant, Teri Michelle Parker (Wife),
appeals the trial courts decision to award custody of the parties'
child, Dylan Ken Parker, to Defendant-Appellee, Richard Ken Parker
(Husband), alleging that the custody determination was based on the
effects of racial prejudice.  We affirm the trial courts award of
custody to Husband.

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

RONNIE WILSON PERRY, v. MARLA RENEE PERRY (ROBINSON)

Court:TCA

For the Plaintiff/Appellee:     For the Defendant/Appellant:

Jessica Dawn Dugger             Jon S. Jablonski
Gregory S. Gill                 Nashville, Tennessee
Lebanon, Tennessee 
                          
Judge: HOLLY KIRBY LILLARD

First Paragraph:

This is a child custody case.  Appellant Marla Perry sought to move
out of state with the minor children of her previous marriage.  In
response, Appellee Ronnie Perry filed a petition seeking a change in
custody. The trial court held that custody would be changed in the
event that the mother moved out state.  We reverse, based on the
Tennessee Supreme Courts decision in Aaby v. Strange, 924 S.W.2d 623
(Tenn. 1996)

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

ELMER RICHARDSON, Individually, and as Surviving Spouse of Goldie H.
Richardson, Deceased
v.
CITY OF KNOXVILLE  
    
Court:TCA

SHARON E. BOYCE OF KNOXVILLE FOR APPELLANT

JOHN T. JOHNSON, JR., OF KNOXVILLE and BILL FAIN OF SEYMOUR FOR
APPELLEE
                          
Judge: Goddard

First Paragraph:

The City of Knoxville appeals judgments rendered in favor of Elmer
Richardson, surviving spouse of Goldie H. Richardson, for personal
injuries received by him and the wrongful death of his wife in the
amount of $30,000, and $130,000, respectively.

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

WENDY SETTERS, individually and as the parent of the minors, Melanie
Ann Setters and Nicole Krystal Setters,
v.
PERMANENT GENERAL ASSURANCE CORPORATION,                  

Court:TCA

For Appellant           For Appellee 

E.L. PARKER, III        JERRY M. MARTIN
Etowah, Tennessee       Knoxville, Tennessee  
                          
Judge: Susano

First Paragraph:

This is a declaratory judgment action.  In the complaint, Wendy
Setters (Mrs. Setters) seeks a declaration that an exclusion in her
automobile insurance policy is invalid as against public policy; and,
alternatively, that the exclusion, due to an ambiguity in the
insurance policy, is unenforceable against her.  The subject provision
excludes the extension of liability coverage to an insured when that
persons negligence causes injury to a family member.  Relying on this
exclusion, the defendant, Permanent General Assurance Corporation
(Permanent General), denied coverage with respect to claims asserted
by Mrs. Setters individually and on behalf of her children arising
solely out of injuries sustained by the children in an automobile
accident.  The accident was caused, in part, by the negligent driving
of her husband.  The trial court granted Permanent Generals motion
for judgment on the pleadings, finding the exclusion to be valid,
enforceable and not violative of the public policy of Tennessee.
Plaintiff appeals, raising two issues that present the following
questions:1.  Is a provision in an automobile insurance policy
excluding coverage for liability to a family member violative of the
public policy of Tennessee? 2.  Is the liability coverage in the
subject policy ambiguous so as to warrant a strict construction
against Permanent General?
 
URL:http://www.tba.org/tba_files/TCA/SETTERS.OPN.WP6
Opinion-Flash

LINDA DIANE STAMPS, v. STEPHEN RAY STAMPS,

Court:TCA

STEPHEN RAY STAMPS, Pro Se.                         

Judge: FARMER

First Paragraph:

Stephen Ray Stamps appeals the judgment of the trial court dismissing
his Petition for Visitation Rights for lack of jurisdiction.  The
parties were divorced in the court below and Linda Diane Stamps was
awarded custody of the parties minor daughter.  Mr. Stamps was
incarcerated at that time.

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

SUSAN RENEE WRIGHT WILLIAMSON,v. JOHN HOUSTON WILLIAMSON,   

Court:TCA

PERRY P. PAINE, JR., PAINE, GARRETT & BRAY, Maryville, for
Plaintiff-Appellant.

JERRY G. CUNNINGHAM, KIZER & BLACK, Maryville, for Defendant Appellee.
                         
Judge: Franks

First Paragraph:

In this divorce action the Trial Court awarded to each party an
absolute divorce from the other on the grounds of inappropriate
marital conduct.  The Court awarded the custody of the parties two
minor children to the mother, ordered the father to pay child support
based upon the guidelines, and in dividing the parties marital estate
concluded that their home was a gift from the husbands parents to him
alone, and therefore separate property.  From this latter
determination, the wife has appealed.

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

WILLIAM A. WINNINGHAM, Executor of the Estate of Alston Winningham,
v.
TAMMY K. WINNINGHAM,            

Court:TCA

JOHN R. OFFICER, Livingston, for Appellant.

HARRY D. SABINE, Sabine & Douglas, P.C., Crossville, for Appellee.
                        
Judge: McMurray

First Paragraph:

We are called upon in this appeal to determine whether relying on the
advice of an attorney in filing an unfounded will contest constitutes
probable cause sufficient to avoid the enforcement of a forfeiture
clause in the will.  For the reasons set forth below, we find that
such reliance does constitute probable cause, and reverse the judgment
of the trial court.

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

STATE OF TENNESSEE,v. BRIAN K. COLLINS, 

Court:TCCA

For Appellant:                  For Appellee:

Gale Flanary                    Charles W. Burson
Assistant Public Defender       Attorney General & Reporter
Office of the Public Defender   
P.O. Box 839                    Clinton J. Morgan
Blountville, TN  37617          Assistant Attorney General 
                                450 James Robertson Parkway
                                Nashville, TN  37243

                                Nancy Harr
                                Assistant District Attorney General
                                Second Judicial District
                                P.O. Box 526
                                Blountville, TN  37617
                         
Judge: GARY R. WADE

First Paragraph:

The defendant, Brian K. Collins, was convicted of violating a habitual
traffic offender order, violation of registration, and evading arrest.
 He was sentenced as a range one offender to two years for violating
the order, thirty days for violation of registration, and eleven
months and twenty nine days for evading arrest, all to be served
concurrently.  This is his appeal of right.

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

STATE OF TENNESSEE, v. KATHERINE H.GALLAHER 

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

MR. J. DANIEL FREEMON           CHARLES W. BURSON
Attorney at Law                 Attorney General and Reporter
Freemon and Hillhouse
P.O. Box 787
Lawrenceburg, TN 38426          CHARLOTTE H. RAPPUHN
                                Attorney Generals Office
                                450 James Robertson Parkway
                                Nashville, TN 37243

                            
                                JOHN W. OVERTON
                                Asst. District Attorney General
                                Main Street
                                Savannah, TN 38372
                         
Judge: LYNN W. BROWN

First Paragraph:

The appellant, Katherine H. Gallaher, pleaded guilty in the Criminal
Court for Hardin County, Tennessee, to the offense of driving under
the influence of an intoxicant, second offense.  The trial court
imposed a sentence of 11 months and 29 days of which the appellant was
required to serve 180 days in jail followed by 5 months and 29 days of
supervised probation.  Her drivers license was revoked for three
years and a fine of six hundred dollars was imposed.  The only issue
presented in this appeal is whether the sentence imposed by the trial
court is appropriate.  We affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCCA/gallahr2.opn.WP6
Opinion-Flash

STATE OF TENNESSEE, v. JOSEPH A. MILLS, JR.,        

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Natalee S. Hurley           Charles W. Burson
Assistant Public Defender   Attorney General & Reporter
419 High Street             450 James Robertson Parkway
Maryville, TN 37804         Nashville, TN 37243-0497

OF COUNSEL:                 Timothy F. Behan
                            Assistant Attorney General
R. Mack Garner              450 James Robertson Parkway
District Public Defender    Nashville, TN 37243-0493
419 High Street
Maryville, TN 37804         Michael L. Flynn
                            District Attorney General
                            363 Court Avenue
                            Maryville, TN 37804-5906

                            Phillip H. Morton
                            Assistant District Attorney General
                            363 Court Avenue
                            Maryville, TN 37804-5906
                         
Judge: Joe B. Jones

First Paragraph:

The appellant, Joseph A. Mills, Jr., was convicted of driving while
under the influence, a Class A misdemeanor, by a jury of his peers. 
It is not clear whether the appellant was sentenced for a second or
third offense.  The trial court imposed a sentence consisting of a
fine in the amount of $1,350 and confinement for eleven months and
twenty-nine days in the Blount County Jail.  The trial court suspended
all but 180 days of the sentence and placed the appellant on probation
for the balance of the sentence.  In this Court, the appellant
contends that the evidence is insufficient to support his conviction
and the sentence imposed is excessive.  After a thorough review of the
briefs submitted by the parties, the record, and the authorities that
control the issues presented for review, it is the opinion of this
Court that the appellants conviction should be affirmed.  This cause
is remanded to the trial court for a determination of whether the
appellant was sentenced as a second or third offender.

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

STATE OF TENNESSEE, v. RICHARD REDMOND, 

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

MR. ORVIL L. ORR            CHARLES W. BURSON
Attorney at Law             Attorney General and Reporter
204 S. College St.
P.O. Box 351                ROBIN L. HARRIS
Trenton, TN 38382           Attorney Generals Office
                            450 James Robertson Parkway
                            Nashville, TN 37243

                            CLAYBURN L. PEEPLES
                            District Attorney General
                            28th Judicial District  
                            109 East First Street
                            Trenton, TN 38382

                            LARRY HARDISTER
                            Assistant District
                            Attorney General
                            109 East First Street
                            Trenton, TN 38382
                            
Judge: LYNN W. BROWN

First Paragraph:

The appellant, Richard Redmond, indicted for two counts of aggravated
assault, entered a plea of guilty in the Circuit Court for Crockett
County to a single offense of felony reckless endangerment, receiving
a sentence of two years with thirty days to be served in custody. 
Subsequently he filed a petition for post-conviction relief alleging
that his guilty plea was not entered knowingly, voluntarily and
intelligently.  The petition also alleged that he received ineffective
assistance from his counsel at the guilty plea.  The trial court
denied relief, from which judgment the appellant has appealed by right
to this court.

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

STATE OF TENNESSEE, v. ALLEN RAY RICKER,        

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

T. Wood Smith                   Charles W. Burson
Attorney at Law                 Attorney General & Reporter
128 South Main Street           500 Charlotte Avenue
Greeneville, TN 37743           Nashville, TN 37243-0497

                                Darian B. Taylor
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                C. Berkley Bell
                                District Attorney General
                                113 West Church St., Suite 401
                                Greeneville, TN 37745

                                Michelle Green
                                Asst. District Attorney General                             
                                113 West Church St., Suite 401
                                Greeneville, TN 37745
                        
Judge: Joe B. Jones

First Paragraph:

The appellant, Allen Ray Ricker, was convicted of 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 a Range I sentence
of confinement for three (3) years in the Department of Correction. 
The appellant contends that the trial court committed error of
prejudicial dimensions by: (a) denying his motion for a judgment of
acquittal at the conclusion of the states case in chief because the
state failed to prove the venue of the offense and failed to prove
that the person named in the indictment was the owner of the wrecker
in question, and (b) permitting the state to reopen its case in chief
to prove the venue of the offense.  After a thorough review of the
record, the briefs submitted by the parties, and the law that governs
the issues presented for review, it is the opinion of this Court that
the judgment of the trial court should be affirmed.

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

STATE OF TENNESSEE, v. WILLIAM HERBERT STITTS,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

GEORGE MORTON GOOGE             CHARLES W. BURSON
District Public Defender        Attorney General and Reporter
227 W. Baltimore St.
Jackson, TN 38301               CHARLETTE REED CHAMBERS
                                Attorney Generals Office
PAMELA DREWERY                  450 James Robertson Parkway
Asst. Public Defender           Nashville, TN 37243-0493
227 West Baltimore Street
Jackson, TN 38301               DON ALLEN
                                Asst. District Attorney General
                                P.O. Box 2825
                                Jackson, TN 38301
                        
Judge: LYNN W. BROWN

First Paragraph:

The appellant, William Herbert Stitts, was convicted upon trial by
jury of aggravated robbery.  The trial court imposed a sentence of
eleven years.  In this appeal of right the appellant raises two
issues: 1) whether the proof at trial was sufficient to support a
verdict of guilty, and 2) whether the sentence imposed was proper. 

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

STATE OF TENNESSEE, v. JOHN RUSSELL TURNER, 

Court:TCCA

For the Appellant:              For the Appellee:

Mack Garner                     Charles W. Burson
District Public Defender        Attorney General and Reporter
318 Court Street    
Maryville, TN  37801            Michael J. Fahey, II
                                Assistant Attorney General  
                                Mary Ann Queen,
                                Legal Assistant
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                Michael L. Flynn
                                District Attorney General

                                Charles Carpenter
                                Asst. District Attorney General
                                Blount County Courthouse
                                Maryville, TN  37801
                          
Judge: David G. Hayes

First Paragraph:

The appellant, John Russell Turner, appeals from his conviction by a
jury for driving under the influence of an intoxicant.  The Circuit
Court of Blount County sentenced the appellant to eleven months and
twenty-nine days incarceration in the county jail and suspended all
but five days.  On appeal, the appellant contends that the evidence
adduced at trial is insufficient to support a conviction, because the
State failed to prove that he intended to operate a vehicle.

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

STATE OF TENNESSEE,         
v.
DAVEY JOE VINEYARD, and JIMMY LEE COCKBURN,         

Court:TCCA

FOR THE APPELLANTS                  FOR THE APPELLEE

Kenneth L. Miller                   Charles W. Burson
Logan, Thompson, Miller, Bilbo,     Attorney General & Reporter  
Thompson & Fisher, P.C.
P.O. Box 191                        Hunt S. Brown
Cleveland, TN  37364-0191           Assistant Attorney General                                  
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493
                    
                                    Jerry N. Estes
                                    District Attorney General
                               
                                    Joseph A. Rehyansky
                                    Asst District Attorney General
                                    93 Ocoee St. N., Ste. 200
                                    P.O. Box 1351
                                    Cleveland, TN  37364
                    
Judge: JOHN K. BYERS

First Paragraph:

The Defendants entered pleas of guilty and reserved the right to
appeal the following issue only: DID THE TRIAL COURT ERR IN DENYING
DEFENDANTS MOTION TO SUPPRESS BECAUSE THE STOP OF DEFENDANTS VEHICLE
WAS MADE WITHOUT PROBABLE CAUSE AND WAS A PRETEXTUAL STOP MADE FOR
ILLEGAL REASONS?

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

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