TBALink Opinion-Flash

October 14, 1996 -- Volume #2 -- Number #88

Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts.

This Issue IN THIS ORDER:
00-New Opinons From TSC
00-New Opinons From TSC-Rules
14-New Opinons From TSC-Workers Comp Panel
05-New Opinons From TCA
05-New Opinons From TCCA

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George Dean
TBALink Chief Editor



DEBORAH JEAN BARNER, v.EMERSON ELECTRIC COMPANY,

Court:TSC - Workers Comp Panel

For Appellant:                      For Appellee:

Thomas F. Ventimiglia               Charles L. Hicks  
Hessing, Ventimiglia & Swayne       Camden, TN  
Paris, TN                       
                       
Judge: Holder

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court pursuant to
Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting of findings
of fact and conclusions of law.  Our scope of review of findings of
fact by the trial court is de novo upon the record of the trial court,
accompanied by a presumption of correctness, unless the preponderance
of the evidence is otherwise. 

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

BOBBY G. DICKENS,   v. TRAVELERS INSURANCE COMPANY, 

Court:TSC - Workers Comp Panel

For Appellant:                                  For Appellee:

Wm. Ritchie Pigue                               Hugh E. Green
William G. McCaskill, Jr.                       Lebanon, TN
Taylor, Philbin, Pigue, Marchetti & Bennett
Nashville, TN            
                          
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's insurer contends the award of permanent partial disability
benefits is excessive.  

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

JOSEPH H. JARREAU,  v. VANLINER INSURANCE COMPANY,

Court:TSC - Workers Comp Panel

For Appellant:              For Appellee:

David W. Piper              Peter S. Rosen
Nashville, TN        Levine, Mattson, Orr & Geracioti
                         
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.  This appeal presents the
questions whether and under what circumstances, if any, an injured
worker may give up his right to future medical expenses.  The panel
concludes the trial court's judgment, approving a settlement in which
the right to future medical expenses was voluntarily surrendered for
consideration, should be affirmed.

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

VICKY LADD, v. PERMA-VIEW PROCESSED GLASS,

Court:TSC - Workers Comp Panel

For the Appellant:                  For the Appellee:
Stephen K. Heard                    Cleo G. Hogan
Nashville, TN                Clarksville, TN
                  

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. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. Plaintiff
injured her back on December 8, 1989 while working for defendant. The
trial judge set the weekly benefit rate at $144.67, ordered defendant
to pay certain discretionary costs and awarded plaintiff 35 percent
permanent vocational disability.

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

KENNETH W. LEACH, v. DRIVER POWER LEASING & HUMBOLDT EXPRESS,

Court:TSC - Workers Comp Panel

For Appellant:

J. Matthew Powers
Leitner, Warner, Moffitt, Williams, Dooley, Carpenter & Napolitan
Nashville, TN

For Appellee:

Shelley I. Stiles
Brentwood, TN
                      
Judge: Gayden

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
defendant asserts that the trial court erred in finding that the
claimant was injured in the course and scope of his employment.  In
the alternative, defendant contends that if the injury were work
related the trial court's award was excessive.  

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

NATIONAL HEALTHCORP, L.P.,  v. JAMES PUCKETT,               

Court:TSC - Workers Comp Panel

For the Appellant:              For the Appellee:

D. Russell Thomas               John R. Rucker, Jr.
Murfreesboro, TN                Murfreesboro, TN
                         
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. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. The employer
filed this complaint asking the trial court to determine whether the
employee sustained any permanent partial disability as a result of an
incident at work in which he was in an elevator which fell or sped
downward for ten floors.

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

ST. PAUL FIRE & MARINE INSURANCE COMPANY and LINEAL GROUP, INC.,
v.
CECIL CARRICK,              

Court:TSC - Workers Comp Panel

For the Appellant:              For the Appellee:

Kent E. Krause                  William Burton
BREWER, KRAUSE, BROOKS          DANIEL, BURTON & ASSOCS. 
  & MILLS                       401W. Main, P. O. Box 960
Suite 2600, The Tower           Murfreesboro, TN  37133-0960
Nashville, TN  37203                
                         
Judge: CHILDERS

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. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. The trial
court awarded Defendant/Counter-Plaintiff 85% permanent partial
disability to the left lower extremity.  Plaintiff/Counter-Defendant
below appeals, arguing that the trial court erred in finding that the
employee's testimony was credible; that the employee failed to prove
that he sustained a permanent injury which arose out of and in the
course of his employment; that the employee failed to give proper
notice of his injury; that the evidence does not support an award of
85% to the lower extremity; and that the medical treatment awarded by
the trial court was unauthorized and should not have been allowed.

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

AMERICAN ENVIRONMENTAL PROTECTION, INC.,              
v.
BOARD OF EDUCATION OF THE MEMPHIS CITY SCHOOLS, and ENVIRONMENTAL
PROTECTION SYSTEMS, INC.,

Court:TCA

ANDREW M. CATE
DAVID J. WAYNICK
WAYNICK, CATE & TAYLOR
Nashville, TN
Attorneys for Appellant

ERNEST G. KELLY, JR.
EVANS & PETREE
Attorney for Appellee, Board of Education
of the Memphis City Schools

MICHAEL B. NEAL 
KRIVCHER, MAGIDS, NEAL, 
COTTAM & CAMPBELL, P.C.
Attorney for Appellee, Environmental 
Protection Systems, Inc.
                        
Judge: ALAN E. HIGHERS

First Paragraph:

American Environmental Protection, Inc. ("AEP") appeals from the trial
court's judgment holding that it was not entitled to recover the costs
of removing asbestos containing materials that were in excess of the
amounts specified in the original bid documents.   AEP has raised two
issues for our consideration, which are: (1) whether the evidence
preponderates against the trial court's finding that AEP received
adequate compensation for its services, and (2) whether the evidence
preponderates against the trial court's finding that AEP was barred
from recovery due to its negligence and/or assumption of the risk. 

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

AUTOMOTIVE FINANCIAL SERVICES, INC., a TN Corporation, JOHN C.
KIMBROUGH and VALERIE B. KIMBROUGH, 
v.
AZALEA TERRACE PARTNERS, LTD., a TN limited partnership,
And PHILLIP BAUM,

Court:TCA

Roger A. Stone, Memphis, TN
Attorney for Plaintiffs/Appellants.

Paul J. Posey, Jr.,
GLANKLER BROWN, Memphis, TN
Attorney for Defendant/Appellee Azalea Terrace Partners, Ltd.                       

Judge: FARMER

First Paragraph:

This is an action seeking to recover for the defective construction of
a residence.  On September 22, 1988, Appellant, Automotive Financial
Services, Inc. (Automotive), contracted to purchase the residence
located at 650 Azalea Terrace Circle from Appellee, Azalea Terrace
Partners, Ltd. (Azalea).  John and Valerie Kimbrough, the remaining
appellants in this action, were to reside in the home.  The contract
included a punch list of items for completion or repair.  At closing,
on September 30, 1988, Automotive received a one year warranty of
construction from the contractor of the home, Phillip Baum. 

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

TERRY JARNIGAN and wife, KATHY JARNIGAN                
v.
CITY OF NEWPORT UTILITIES BOARD 
and ARLIE STUART and wife, SHERRY STUART                
v.
CITY OF NEWPORT UTILITIES BOARD                         

Court:TCA

SHANNON D. FAULKNER, III, WITH GILBERT AND FAULKNER, OF KNOXVILLE,
TN FOR APPELLANTS

JAMES C. McSWEEN, JR., OF NEWPORT, TN, FOR APPELLEE
                         
Judge: Sanders

First Paragraph:

These two personal injury cases grew out of the same accident, filed
by the same attorney at the same time, against the same Defendant.  No
order of consolidation is in the record before us but they were tried
together and are before us on a joint record and will be treated as
having been consolidated both at trial and on this appeal.

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

JOYCE McCLELLAN   v. CITY OF KNOXVILLE           

Court:TCA

DANIEL F. McGEHEE, WITH McGEHEE & NEWTON, OF KNOXVILLE, TN, FOR
APPELLANT

SHARON E. BOYCE, OF KNOXVILLE, TN, FOR APPELLEE
                         
Judge: Sanders

First Paragraph:

The Plaintiff has appealed from an order dismissing her complaint for
personal injuries, based on Defendant's motion pursuant to Rule
12.02(6), TRCP, for failure to state a claim upon which relief can be
granted.  We affirm.

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

JAMES T. MORROW and wife, DONNA J. MORROW, ET AL, 
v.
BETTY BOBBITT in her capacity as County Trustee for Fayette County,
TN, and ANNE HILL,

Court:TCA

Attorneys:  N/A                        

Judge: FARMER, J.

First Paragraph:

ORDER
Appellant Anne Hill has filed a respectful petition for rehearing and
Appellees have filed a response.  After due consideration, the
petition for rehearing is denied.  Costs are taxed to Appellant Anne
Hill.

URL:http://www.tba.org/tba_files/TCA/MORROWJT.OP2.WP6
Opinion-Flash

DONALD W. BURLISON, v. STATE OF TN,

Court:TCCA

FOR THE APPELLANT:               FOR THE APPELLEE:


JOHN HENDERSON                  CHARLES W. BURSON
Public Defender                 Attorney General & Reporter

LARRY D. DROLSUM                KAREN M. YACUZZO
Asst. Public Defender           Asst. Attorney General  
Franklin, TN                 
                                JOE D. BAUGH
                                District Attorney General

                                RONALD L. DAVIS
                                Asst. District Attorney General
                        
Judge: JOHN H. PEAY

First Paragraph:

The petitioner was convicted by a jury of first-degree murder and
aggravated assault.  His convictions were affirmed on direct appeal. 
He subsequently filed a petition for post-conviction relief alleging
ineffective assistance of counsel at both the trial and appeal levels,
and an improper jury instruction. 

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

JOHNNY EUGENE JOHNSON,  v. STATE OF TN,  

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

GREGORY SMITH               CHARLES W. BURSON
One Public Square           Attorney General and Reporter
Suite 321       
Clarksville, TN  37040      ROBIN L. HARRIS
                            450 James Robertson Parkway
                            Nashville, TN  37243-0943

                            JOHN CARNEY
                            District Attorney General

                            CHARLES BUSH
                            Assistant District Attorney
                         
Judge: JERRY L.SMITH

First Paragraph:

Appellant, Johnny Eugene Johnson, appeals from the dismissal of his
petition for post-conviction relief.  Appellant is serving an
effective twenty year sentence following his conviction on two counts
of aggravated rape and two counts of aggravated sexual battery.  This
conviction was affirmed on direct appeal.  State v. Johnson, No.
01C01-9107-CC-00194, 1992 WL 25006 (Tenn. Crim. App. Feb. 14, 1992),
perm. to app. den., (Tenn. 1992).  In  this, his first post-conviction
petition, filed February 10, 1993, Appellant claims his trial attorney
rendered ineffective assistance of counsel.  

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

DOWELL LEWIS SHANNON, v. STATE OF TN 

Court:TCCA

FOR THE APPELLANT                   FOR THE APPELLEE

Comer L. Donnell                    Charles W. Burson
District Public Defender            Attorney General and Reporter
213 North Cumberland Street         450 James Robertson Parkway
Post Office Box 888                 Nashville, TN 37243-0493
Lebanon, TN 37087                    
                                    William D. Bridges  
                                    Assistant Attorney General
        
                                    Tom P. Thompson, Jr.
                                    District Attorney General

                                    H. Douglas Hall 
                                    Asst District Attorney General
                         
Judge: William M. Barker

First Paragraph:

This is an appeal as of right from the Wilson County Criminal Court's
dismissal without a hearing of Appellant's post-conviction relief
petition.  Appellant claims that he was denied the effective
assistance of counsel in violation of both the United States
Constitution and the TN Constitution.  We find that there is no
merit to Appellant's claim and accordingly affirm the trial court's
dismissal of Appellant's petition.

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

STATE OF TN  v. CALVIN WAYNE SUGGS,      

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:   

Shipp R. Weems                  Charles W. Burson
District Public Defender        Attorney General and Reporter
                               
Steve Stack                    
Assistant Public Defender 
23rd Judicial District          Darian B. Taylor 
P.O. Box 160                    Assistant Attorney General
Charlotte, TN  37036            Criminal Justice Division 
(on appeal)                     
                                
Jerry V. Smith 
Littleton, Smith & Roberts      Robert S. Wilson 
300 N. Main Street              and
Dickson, TN  37055              Christopher L. Young 
(at trial)                      Asst. District Attorneys General 
                               
Judge: ROBERT E. CORLEW, III

First Paragraph:

From the decision of the Trial Court finding the Defendant guilty of
second-degree murder and reckless endangerment, and sentencing him to
serve twenty (20) years as a Range I Standard Offender for the
conviction for murder, and two (2) years, concurrently, for reckless
endangerment, the Defendant appeals.

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

STATE OF TN, v. SAMMIE LEE TAYLOR,   

Court:TCCA

For the Appellant:          For the Appellee:

Christopher L. Nearn        Charles W. Burson
100 North Main Bldg         Attorney General and Reporter
Memphis, TN  38103  
and                         Amy L. Tarkington
Arthur E. Quinn             Assistant Attorney General        
860 Ridge Lake Blvd        
Memphis, TN 38120           
                            John W. Pierotti
                            District Attorney General

                            James Challen and
                            John Campbell
                            Asst. District Attorneys General
                          
Judge: David G. Hayes

First Paragraph:

The appellant, Sammie Lee Taylor, Jr., appeals his jury convictions
for the crimes of especially aggravated kidnapping, especially
aggravated robbery, aggravated sexual battery, and felony murder.  At
the conclusion of the penalty phase of the trial, the jury imposed a
sentence of life imprisonment without the possibility of parole for
the felony murder conviction.  The Criminal Court of Shelby County
sentenced the appellant to an effective sentence of sixty-two years
for the remaining three convictions, ordering that this sixty-two year
sentence run consecutively to the appellant's life sentence. 

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

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