TBALink Opinion-Flash

March 12, 1997 -- Volume #3 -- Number #029

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 Opinions From TSC
00-New Opinions From TSC-Rules
00-New Opinions From TSC-Workers Comp Panel
10-New Opinions From TCA
00-New Opinions From TCCA

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George Dean
TBALink Chief Editor


JAMES L. GARRETT
vs.
DON MCDOUGLE, former Commissioner of Public Works 
for the City of Lebanon, and THOMAS ATCHLEY, Commissioner 
of Public Works for the City of Lebanon, and the 
CITY OF LEBANON, TENNESSEE

Court:TCA

Attorneys: 

Calvin P. Turner
202 East Gay Street
Lebanon, TN 37087
ATTORNEY FOR PLAINTIFF/APPELLANT

J. Russell Farrar
William N. Bates
P.O. Box 80838
Nashville, TN 37208
ATTORNEYS FOR DEFENDANTS/APPELLEES                         

Judge: TODD

First Paragraph:

The defendants, City of Lebanon, Don McDougle, former Commissioner of 
Public Works, and Thomas Atchley, present Commissioner of Public
Works, have appealed from a summary judgment in favor of the
plaintiff, James L. Garrett awarding him $72,087.85 for wrongful
discharge plus $9,218.75 attorneys fees, and restoring him to his
employment with the City of Lebanon. REVERSED AND REMANDED.

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

HOOVER, INC.
vs.
METROPOLITAN BOARD OF ZONING APPEALS 
FOR DAVIDSON COUNTY, TENNESSEE

Court:TCA

Attorneys: 

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

Thomas V. White                     Robert H. Jennings, Jr.
Tune, Entrekin & White              Nashville, Tennessee
Nashville, Tennessee
                                    James R. Tomkins
George A. Dean                      Glasgow & Veazey
Parker, Lawrence, Cantrell & Dean   Nashville, Tennessee
Nashville, Tennessee
                                    Herbert R. Rich
                                    Nashville, Tennessee

                                    Carrol D. Kilgore
                                    Branstetter, Kilgore, Stranch                                   
                                    & Jennings      
                                    Nashville, Tennessee                         

Judge: KOCH

First Paragraph:

This expedited appeal involves the efforts of a quarry operator to
obtain a conditional use permit to operate at another location in
Davidson County.  The operator filed a petition in the Chancery Court
for Davidson County seeking judicial review of the decision of the
Metropolitan Board of Zoning Appeals to deny a conditional use permit.
 On the second appeal from the trial court, this court reversed the
Board's decision and remanded the case for further proceedings.  The
trial court thereafter remanded the case to the Board with directions
to consider the operator's application in light of the record at the
original hearing together with additional evidence of changed
conditions in the area since the original hearing.  The operator
asserts on this appeal that the trial court should have ordered the
Board to issue the conditional use permit.  While the trial court
correctly remanded the case to the Board with directions to deliberate
and make a decision, we have determined that it erred by permitting
the parties to introduce new evidence once the case is remanded to the
Board.  We have determined that the Board's deliberations should be
limited to the evidence presented at the original hearing. MODIFIED
AND REMANDED.

URL:http://www.tba.org/tba_files/TCA/HOOVERIN_OP2.WP6
Opinion-Flash

CHARLES JACKSON
vs.
CORRECTIONS CORPORATION OF AMERICA, et al.

Court:TCA

Attorneys: 

TOM ANDERSON #7104
Frankie K. Stanfill #016518
P.O. Box 483
Lexington, TN 38251
ATTORNEYS FOR PETITIONERS/APPELLEES

CHARLES JACKSON #202911
W.T.H.S.F., Route 2
Green Chapel Road
Henning, TN 38041
PRO SE/PLAINTIFF/APPELLANT                         

Judge: TODD

First Paragraph:

The captioned plaintiff has appealed from an order of the Trial Court
dismissing his "Petition for Certiorari pursuant to T.C.A. S 27-8-101"
seeking relief from disciplinary action of the captioned defendants
who are employees of Correction Corporation of America, a private
prison contractor.  The petition alleges that the disciplinary action
(not specified), was taken violated T.C.A. S41-24-110. REVERSED,
VACATED AND REMANDED.

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

ALICE LIVINGSTON, as parent and next friend 
of DAVID JONATHAN LIVINGSTON, a minor, and 
DAVID JONATHAN LIVINGSTON individually 
vs.
UPPER CUMBERLAND HUMAN RESOURCE AGENCY

Court:TCA

Attorneys:                          

JERRY LEE BURGESS
Courthouse Square
One South Jefferson Street
Cookeville, Tennessee 38501
    Attorney for Plaintiffs/Appellees

J. RUSSELL FARRAR
WILLIAM N. BATES
211 Seventh Avenue No., Suite 320
Nashville, Tennessee 37219-1823
    Attorney for Defendant/Appellant
    
Judge: CANTRELL

First Paragraph:

The issues in this case, brought under the Tennessee Governmental Tort
Liability Act, include the trial judge's allocation of fault and the
award of damages. AFFIRMED AND REMANDED.

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

CHARLES LORIA
vs.
FLORENCE M. LORIA

Court:TCA

Attorneys:

Mark W. Henderson
P.O. Box 8822
Gallatin, TN 37066              
ATTORNEY FOR PLAINTIFF/APPELLANT

William Carter Conway
236 Court Square
Franklin, TN 37064
ATTORNEY FOR DEFENDANT/APPELLEE                          

Judge: TODD

First Paragraph:

In this appeal by the husband from a divorce decree, the only issue is
the award of alimony in futuro rather than rehabilitative alimony. 
Subordinate issues are the ability of the wife to work, her needs, and
the ability of the husband to supply her needs. MODIFIED AND REMANDED.

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

FRANK RUDY HEIRS ASSOCIATES, 
SHONEY'S INN OF MUSIC VALLEY, LTD.
vs.
SHOLODGE, INC.

Court:TCA

Attorneys:     

Charles Patrick Flynn, Gerald D. Neenam of Nashville
    For Plaintiffs-Appellees

Eugene N. Bulso, Jr. of Boult, Cummings, Conners & Berry, PLC
    of Nashville, for Defendant-Appellant                     

Judge: CRAWFORD

First Paragraph:

This appeal basically involves the interpretation of a contract. 
Defendant, Sholodge, Inc., appeals from the order of the trial court
granting partial summary judgment to the plaintiff, Shoney's Inn Of
Music Valley, Ltd.  The trial court ruled that Sholodge breached its
Limited Partnership Agreement with Frank Rudy Heirs Associates, and,
therefore, granted partial summary judgment to Shoney's Inn of Music
Valley, Ltd. (Partnership).  The trial court referred the issue of
damages to a Special Master.  The trial court confirmed the report of
the Special Master and awarded damages of $3,045,031.00 to the
Partnership.  The order was made final pursuant to Tenn.R.Civ.P. 54.02
and Sholodge has appealed. REVERSED AND REMANDED.

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

BIENVENIDO T. SAMSON, M.D.
vs.
HARTSVILLE HOSPITAL, INC.

Court:TCA

Attorneys: 

EDDIE TAYLOR
DONOHO, TAYLOR & TAYLOR
204 Court Street
P. O. Box 179
Hartsville, Tennessee 37074
    Attorney for Plaintiff/Appellee

LUIS C. BUSTAMANTE
J. FORD LITTLE
WOOLF, MCCLANE BRIGHT, ALLEN & CARPENTER
900 S. Gay Street, Suite 900
P. O. Box 900
Knoxville, Tennessee 37901-0900
    Attorneys for Defendant/Appellant                         

Judge: CANTRELL

First Paragraph:

The appellant hospital has asked this court to review the question of
whether Dr. Samson should be required to submit his dispute with the
hospital to binding arbitration after the termination of a contract
between them.  The hospital insisted on arbitration, and the doctor
chose to pursue his rights through the courts. The Chancery Court of
Trousdale County found that the arbitration clause in the contract was
no longer binding on the doctor, and it enjoined the hospital from
pursuing arbitration.  REVERSED AND REMANDED.

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

MICHELLE CREIGHTON TERRY
vs.
GARY D. NIBLACK, M.D. and LABORATORY INVESTMENTS, INC., 
d/b/a GENE PROOF TECHNOLOGIES

Court:TCA

Attorneys:   

Carol L. Soloman, #6649
L.R. Demarco, #2652
Washington Square, Suite 400
214 Second Avenue No.
Nashville, TN 37201-1602
ATTORNEY FOR PLAINTIFF/APPELLANT

Michael M. Castellarin, #12015
Moody, Whitfield & Castellarin
95 White Bridge Road
Suite 509, Cavalier Building
Nashville, TN 37205-1427
ATTORNEYS FOR DEFENDANTS/APPELLEES                       

Judge: TODD

First Paragraph:

The plaintiff, Michelle Creighton Terry, has appealed from the
dismissal of her suit against the defendants, Gary D. Niblack, M.D.
and Laboratory Investments, Inc., d/b/a Gene Proof Technologies, for
damages resulting from an erroneous result or report of result of a
test for paternity, and failure to timely notify plaintiff of the
error. REVERSED, VACATED AND REMANDED.

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

WASTE MANAGEMENT, INC., OF TENNESSEE    
vs.
SOUTH CENTRAL BELL TELEPHONE COMPANY

Court:TCA

Attorneys:

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

Angus Gillis, III                   Steven E. Anderson
SCHULMAN, LeROY & BENNETT           BASS, BERRY & SIMS
Nashville, Tennessee                Nashville, Tennessee                          

Judge: KOCH

First Paragraph:

This appeal stems from an incident in which a piece of broken
telephone pole being dragged behind a garbage truck struck a
pedestrian.  The pedestrian sued the owner of the truck, the truck
driver, and the telephone company in the Circuit Court for Davidson
County.  After the truck's owner settled all the pedestrian's claims,
the trial court conducted a bench trial on the remaining claims
between the truck owner and the telephone company and awarded the
truck owner a $27,114.47 judgment against the telephone company.  On
this appeal, the telephone company asserts that the final judgment is
inconsistent with the trial court's initial finding that the
intervening negligence of an unknown driver, not the telephone
company's installation or maintenance of its equipment, proximately
caused the pedestrian's injuries.  We find that the judgment must be
modified because of the lack of evidence establishing a causal
connection between the pedestrian's injuries and the telephone
company's installation and maintenance of its lines and poles.
MODIFIED AND REMANDED.

URL:http://www.tba.org/tba_files/TCA/WASTEB1_OPN.WP6
Opinion-Flash

SARA EVELYN EVANS YOUNG
vs.
BOBBY HUGH YOUNG

Court:TCA

Attorneys:                          

IRWIN VENICK
DOBBINS & VENICK
2100 West End Avenue, Suite 850
Nashville, Tennessee 37203
    Attorney for Plaintiff/Appellant

JACK NORMAN, JR.
213 Third Avenue, North
Nashville, Tennessee 37201
    Attorney for Defendant/Appellee
    
Judge: CANTRELL

First Paragraph:

The Circuit Court of Davidson County refused to hold Bobby Hugh Young
in civil contempt for failing to perform certain parts of a divorce
decree.  We must decide if the dismissal of a civil contempt petition
is appealable, and if so, did the trial judge err in refusing to find
the respondent in contempt.  We hold that the refusal to impose civil
contempt sanctions is appealable, but we affirm the trial judge's
decision not to hold Mr. Young in civil contempt. AFFIRMED AND
REMANDED.

URL:http://www.tba.org/tba_files/TCA/YOUNGS_OPN.WP6

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