TBALink Opinion-Flash

October 09, 1996 -- Volume #2 -- Number #86

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

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George Dean
TBALink Chief Editor


ETHEL FAYE GEORGE,
v. 
CLYDE WAYNE ALEXANDER, and PHILLIP R. JONES, M.D.,  
w/ CONCURRING OPINION

Court:TSC

For Plaintiff-Appellant:            For Defendants-Appellees:

R. Stephen Doughty                  Rose P. Cantrell
Weed, Hubbard, Berry & Doughty      George A. Dean
Nashville, TN                       Parker, Lawrence, Cantrell & Dean
                                    Nashville, TN

Judge: DROWOTA

First Paragraph:

In this medical malpractice case, the plaintiff, Ethel Faye George,
appeals from the Court of Appeals affirmance of a judgment based on a
jury verdict in favor of the defendants, Clyde Wayne Alexander, M.D.
and Phillip R. Jones, M.D.  This case presents the following issue for
our determination: whether a defendant in a negligence case must,
pursuant to Rule 8.03 of the TN Rules of Civil Procedure, plead
comparative fault as an affirmative defense if the defendant wishes to
introduce evidence that a person other than itself caused the
plaintiffs injury.   We conclude that the defendant is required to
affirmatively plead comparative fault in such a situation; and because
that was not done in this case, we reverse the judgment of the Court
of Appeals.

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

MITCHELL BRIAN RAMSEY,  v. JAMES G. BEAVERS, 

Court:TSC

For Appellant:          For Appellee:

Mark T. Young           Thomas A. Williams
Hixson, TN              LEITNER, WARNER, MOFFITT,
                        WILLIAMS, DOOLEY &
                        NAPOLITAN
                        Chattanooga, TN 
 
Judge: WHITE

First Paragraph:

In this case we are faced with the issue of the continued viability of
the zone of danger test as a limitation on liability when plaintiff is
neither physically injured nor in an area where physical injury is
possible.  We conclude that in cases such as this, in which plaintiff
sensorily observes the injury and resulting death of his mother,
recovery should be allowed under circumstances in which the incident
which produces the emotional injuries and the emotional injuries are
reasonably foreseeable.

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

WALTER P. VOGEL,            
v.
WELLS FARGO GUARD SERVICES, and DINA TOBIN, DIRECTOR OF THE DIVISION
OF WORKERS COMPENSATION, TN DEPARTMENT OF LABOR, SECOND INJURY
FUND, STATE OF TN, and CHARLES BURSON, ATTORNEY GENERAL FOR THE
STATE OF TN,

Court:TSC

For the Defendant/Appellants            For Plaintiff/Appellee Vogel:
Wells Fargo Guard Services:
                                        David H. Dunaway
Ernest D. Bennett, III                  DAVID H. DUNAWAY &
Nashville, TN                           ASSOCIATES
                                        LaFollette, TN
For Defendants/Appellants
Dina Tobin and Charles Burson:

Charles W. Burson
Attorney General and Reporter               

Dianne Stamey Dycus
Senior Counsel
Civil Division
                       
Judge: WHITE

First Paragraph:

In this workers' compensation case, we are asked to review the trial
courts determination that TN Code Annotated Section 50-6
207(4)(A)(i) is unconstitutional and that plaintiff is entitled to
life-time workers compensation benefits.  Having considered the
positions of  the parties, the plain language and the legislative
intent of the statute, and relevant authority in other jurisdictions,
we reverse.

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

SHERRY WIMLEY,          
v.
LINDA RUDOLPH, Commissioner of the TN Department of Human Services,

Court:TSC

For Appellant:                          For Appellee:
    
Charles W. Burson                       David Kozlowski
Attorney General and Reporter           Legal Services of South                                 
Central TN, Inc.
Michael E. Moore                        Tullahoma, TN
Solicitor General

Dianne Stamey Dycus
Senior Counsel
CIVIL DIVISION
                          
Judge: WHITE

First Paragraph:

The issue in this case is whether plaintiff can combine an original
action under 42 U.S.C.  1983 with a petition for judicial review
under the Uniform Administration Procedures Act when the sole relief
requested under the Section 1983 claim is an award of attorney fees. 
We affirm the Court of Appeals decision allowing plaintiff an award
of attorney fees.

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

ELLA MAE BROWN, v. MARVIN DOUGLAS BROWN,

Court:TCA

CAROL DOWNTON
Nashville, TN 37216
Attorney for Plaintiff/Counter-Defendant/Appellee

MARVIN DOUGLAS BROWN, #78585
Nashville, TN 37209-1010
Pro Se/Defendant/Counter-Plaintiff/Appellant
                          
Judge: BEN H. CANTRELL

First Paragraph:

The wife of a prisoner in the custody of the TN Department of
Correction filed for divorce, claiming that her husband was guilty of
inappropriate marital conduct.  The husband answered and
counterclaimed, and moved the court to order the wife to file a Bill
of Particulars, setting forth the facts she was relying upon as
grounds for the pending divorce.  The court did not respond to the
husbands motion, nor did it respond to the husbands Motion for Writ
of Habeas Corpus ad Testificandum, but granted the wife an absolute
divorce without affording the husband the opportunity to present any
evidence.  

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

STATE OF TN DEPARTMENT OF HUMAN SERVICES, and WILLIAM D.GARDNER and
JOANN GARDNER,
v.
DANA D. DEFRIECE,             

Court:TCA

For Appellant                   For Appellees Gardners
                            
DEBRA L. HOUSE                  RANDY G. ROGERS
Southeast TN Legal              Athens, TN
Services                    
Cleveland, TN
                        
Judge: Susano

First Paragraph:

The trial court terminated the parental rights of Dana D. Defriece
(Mother) to her son, John Defriece (John) (DOB: January 9, 1988). 
Mother appeals, raising three issues that present the following
questions: 1.  Is the proper appeal route in this case directly to the
Court of Appeals or rather to circuit court for a de novo hearing? 2. 
Do the allegations of the intervening petition satisfy the
requirements of T.C.A.  37-1-147(a) (1991)? 3.  Is the trial courts
termination of Mothers parental rights supported by clear and
convincing evidence?

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

RONALD D. MACKIE and BRENDA L. MACKIE   
v.
DAVID K. HINCHY and PEARLINE HINCHY     

Court:TCA

FLETCHER L. ERVIN OF NEWPORT FOR APPELLANTS

R. J. TUCKER OF NEWPORT FOR APPELLEES
                        
Judge:  Goddard

First Paragraph:

David K. Hinchy and Pearline Hinchy, who are residents of Indiana,
appeal judgments of the Chancery Court for Cocke County.  The
Chancellor, first, granted a default judgment against them in favor of
Ronald D. Mackie and Brenda L. Mackie, who are residents of Florida. 
The Court also ordered the sale of certain real estate, the proceeds
of which would be applied to the satisfaction of the indebtedness
secured by the real estate and, preliminarily, a personal judgment in
the amount of $18,200, plus interest at the rate of 8.65 percent per
annum from October 1, 1989.  Second, after sale of the property and
giving credit for payments previously made, he awarded a deficiency
judgment in the amount of $15,719.97, which included court costs and
expenses of the sale.

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

RICHARD D. PHILLIPS
v.
INTERSTATE HOTELS CORPORATION #L07 and INTERSTATE HOTELS CORPORATION
#L07, d/b/a CHATTANOOGA MARRIOTT and KICKS LOUNGE

Court:TCA

ANITA B. HARDEMAN OF CHATTANOOGA FOR APPELLANT

KARL M. TERRELL and CHRISTOPHER TERRELL OF ATLANTA, GEORGIA, FOR
APPELLEE
                          
Judge: Goddard

First Paragraph:

In this case, the Plaintiff, Richard D. Phillips, sues Interstate
Hotels Corporation and Interstate Hotels Corporation #L07, d/b/a
Chattanooga Marriott and Kicks Lounge, seeking damages by reason of
the Defendants violating his civil rights under the provisions of
T.C.A. 4-21-301(2).

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

JIMMY E. SMITH, v. CONNIE SUE ARGO SMITH,   
w/CONCURRING IN PART AND DISSENTING IN PART

Court:TCA

LARRY B. STANLEY
Stanley & Bratcher
McMinnville, TN 
ATTORNEY FOR PLAINTIFF/APPELLEE

BERNARD SMITH
BPR #2609
McMinnville, TN 
ATTORNEY FOR DEFENDANT/APPELLANT

THOMAS F. BLOOM
BPR No. 11950
Nashville, TN 
ATTORNEY FOR DEFENDANT/APPELLANT
                        
Judge: HENRY F. TODD

First Paragraph:

The counter-plaintiff, Connie Argo Smith, appeals from the Trial
Courts judgment awarding her a divorce on grounds of cruel and
inhuman treatment.  The Trial Court also awarded her the marital
residence and contents, a 1990 Astro Mini Van, and $100,000.00 cash.
The Trial Court required the counter-defendant, Jimmy E. Smith, to pay
all marital debts including the mortgage on the home.  The court also
awarded Mr. Smith a farm, commercial property, the Smart Station
property, a houseboat, a bass boat, a Chevrolet truck, Mercedes
automobile, riding mower, tractor, personal effects and unspecified
stocks.

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

UNITED NATIONAL REAL ESTATE, INC.,  
v.
C. F. THOMPSON AND COLUMBIA AUTO PARTS, INC.,               

Court:TCA

Robert L. Holloway, Jr.
FLEMING, HOLLOWAY & FLYNN, P.C.
B.P.R. #6535
Columbia, TN 
ATTORNEY FOR PLAINTIFFS/APPELLANTS

William Landis Turner 
KEATON, TURNER & SPITZER
Columbia, TN
ATTORNEY FOR DEFENDANT/APPELLEE
                     
Judge: HENRY F. TODD

First Paragraph:

This is a suit by a judgment creditor to set aside a fraudulent
transfer of assets and to subject said assets to the satisfaction of
the judgment. In September, 1985, Columbia Auto Parts, Inc., executed
with United National Real Estate, Inc., an Exclusive Listing
Agreement for the sale of the assets of Columbia Auto Parts, Inc.  In
October, 1985, Columbia Auto Parts, Inc. contracted to sell said
assets to Al Carroll.  In March, 1986, the sale was concluded, and the
proceeds were deposited in the corporate bank account. 

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

TERRY YATES,                    
v.
THE CHATTANOOGA POLICE DEPARTMENT, ERVIN DINSMORE, Public Safety
Administrator for THE CITY COUNCIL FOR THE CITY CHATTANOOGA, TN
and THE CITY OF CHATTANOOGA,

Court:TCA

LEONARD CAPUTO, Phillips & Caputo, Chattanooga, for Appellant.


KENNETH O. FRITZ, and MICHAEL A. McMAHAN, Chattanooga, for Appellee.
                        
Judge: McMurray

First Paragraph:

This is an appeal from the judgment of the chancery court for Hamilton
County, whereby the court affirmed the decision of the City Council of
the City of Chattanooga finding the appellant, a police officer,
guilty of violating Chattanooga Police Manual Orders and imposing
disciplinary sanctions.  We affirm the judgment of the trial court.

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

STATE OF TN, v. ELLA ENSLEY and  JAMES SCOTT MCCULLEY    

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:
ENSLEY:

Charles M. Corn             Charles W. Burson
District Public Defender    Attorney General & Reporter 

A. Wayne Carter and         Jerry L. Smith  
Mack McCoin                 Deputy Attorney General (former)
Asst. Public Defender       Criminal Justice Division
P.O. Box 1453               450 James Robertson Parkway
Cleveland, TN 37364-1476    Nashville, TN 37243-0493

FOR THE APPELLANT           Jerry N. Estes
MCCULLEY:                   District Attorney General

Conrad Finnell              Rebble Johnson
P.O. Box 1476               Asst. Dist. Attorney General
Cleveland, TN   37364                    
                            
William W. Reedy
P.O. Box 628
Athens, TN 37371-0628
                       
Judge: PAUL G. SUMMERS

First Paragraph:

At a joint trial, the appellants, Ella Ensley and James Scott
McCulley, were each convicted of two counts of first degree murder. 
Appellant McCulley was also convicted of two counts of attempted
second degree murder.  Ensley received two consecutive life sentences.
 McCulley was sentenced to life without parole in the first degree
murder convictions and to consecutive thirty year sentences in the
attempted second degree murder convictions.  From these convictions
and sentences both appeal.

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

DONALD ESLICK and  ROBERT RAPPUHN,  v. STATE OF TN, 

Court:TCCA

For the Appellants:             For the Appellee:

Donald Eslick and               Charles W. Burson
Robert Rappuhn, Pro Se          Attorney General of TN
R.M.S.I., Unit 6                and
7475 Cockrill Bend Ind. Blvd.   Merrilyn Feirman
Nashville, TN 37209-1010        Assistant Attorney General of TN                               
                              
                                Jerry N. Estes
                                District Attorney General
                        
Judge: Joseph M. Tipton

First Paragraph:

The petitioners, Donald Eslick and Robert Rappuhn, appeal as of right
from the McMinn County Criminal Courts denial of their petition to
expunge public records regarding aggravated rape and murder charges
that were resolved in their favor.  The trial court concluded that the
record of those charges were so intertwined with the aggravated
kidnapping convictions received by the petitioners that expunction
should not occur.  The petitioners contend that the records pertaining
to the dismissed or acquitted charge are to be expunged pursuant to
T.C.A. 40-32-101 even though they are convicted upon another charge
arising from the same indictment.  Also, they contend that the trial
judge should have recused himself from this case because he was the
assistant district attorney who prosecuted them for the relevant
criminal charges.  The state acknowledges that a remand for further
consideration may be appropriate, but it makes no response to the
recusal claim. 

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

STATE OF TN, v. RICKY THOMPSON,  
w/CONCURRING AND DISSENTING OPINION

Court:TCCA

FOR THE DEFENDANT:              FOR THE APPELLEE:

JOHN G. OLIVA                   CHARLES W. BURSON
(Appellate Counsel)             Attorney General & Reporter
CAPITAL CASE RESOURCE CENTER    
1225 17th Avenue South          CECIL H. ROSS
Nashville, TN  37212            Assistant Attorney General
                                450 James Robertson Pkwy.
JAMES H. STUTTS         
Assistant Public Defender       JERRY N. ESTES
P.O. Box 629                    District Attorney General
Sweetwater, TN  37874
                                STEVE HAWKINS
JERRI S. BRYANT                 Assistant District Attorney General
CARTER, HARROD & CUNNINGHAM     203 Madison Ave.
1 Madison Ave.                  P.O. Box 647
P.O. Box 885                    Athens, TN  37303-0647
Athens, TN  37371- 0885

ISAIAH S. GANT
CAPITAL CASE RESOURCE CENTER
1225 17th Avenue South
Nashville, TN  37212
                          
Judge: DAVID H. WELLES

First Paragraph:

In this capital case, the Defendant, Ricky Thompson, was convicted of
first degree murder, aggravated assault, and arson.  After the
sentencing hearing, the jury found two aggravating circumstances:  (1)
 that the defendant knowingly created a great risk of death to two or
more persons, other than the victim murdered, during the act of
murder; and  (2)  that the murder was extremely heinous, atrocious, or
cruel in that it involved torture or serious physical abuse beyond
that necessary to produce death.  Tenn. Code Ann.   39-13-204(i)(3)
and (5) (1991).  The jury found that the State had proven beyond a
reasonable doubt that the aggravating circumstances outweighed any
mitigating circumstances and sentenced the Defendant to death by
electrocution.  

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

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