TBALink Opinion-Flash

Month 18, 1997 -- Volume #3 -- Number #030

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.

02-New Opinions From TSC
00-New Opinions From TSC-Rules
03-New Opinions From TSC-Workers Comp Panel
04-New Opinions From TCA
02-New Opinions From TCCA

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George Dean
TBALink Chief Editor




For Appellant:                      For Appellee:

Nashville, TN                       Attorney General and Reporter

                                    MICHAEL E. MOORE
                                    Solicitor General

                                    LINDA A. ROSS
                                    Associate Solicitor General

                                    EUGENE J. HONEA
                                    Assistant Attorney General
                                    Nashville, TN

                                    VICTOR S. JOHNSON, III
                                    District Attorney General

                                    CHERYL A. BLACKBURN
                                    Asst. District Attorney General
                                    Nashville, TN                      

Judge: BIRCH

First Paragraph:

John Derrick Martin, the defendant, was convicted by a jury on four
counts of possession and sale of cocaine in various amounts.  The
trial judge sentenced Martin to consecutive ten-year sentences and
imposed a fine of $10,000 for each count. The Court of Criminal
Appeals affirmed the convictions, modified the sentences, and remanded
the cause to the trial court so that a jury could determine the fine.


BETTY CORLEW THOMAS vs. STATE BOARD OF EQUALIZATION; KELSEY JONES, Executive Secretary State Board of Equalization; HELEN JAMES, Administrative Law Judge, State Board of Equalization; METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY; PHIL BREDESEN, Mayor, Metropolitan Government of Nashville and Davidson County; METROPOLITAN BOARD OF EQUALIZATION FOR NASHVILLE AND DAVIDSON COUNTY; JO ANN NORTH, Assessor of Property, Metropolitan Government of Nashville and Davidson County; and CHARLIE CARDWELL, Trustee, Metropolitan Government of Nashville and Davidson County, Court:TSC Attorneys: For Appellant: For Appellees: JOSEPH H. JOHNSTON JOHN KNOX WALKUP Nashville, TN Attorney General and Reporter CHRISTINE LAPPS Assistant Attorney General Nashville, TN Judge: BIRCH First Paragraph: This cause chronicles the efforts of Betty Corlew Thomas, the appellant, to challenge the valuation placed on her home by the Tax Assessor for Metropolitan Nashville-Davidson County. In the initial stages, Thomas proceeded without a lawyer; it was during this period of self-representation that the administrative judge, employed by the state board of equalization ("state board"), dismissed her appeal. Thomas challenged this action, but in the process, she skipped two of the administrative steps that she could have taken and sought judicial review in the Chancery Court. Finding that Thomas had failed to exhaust her administrative remedies, the trial court dismissed her appeal. The Court of Appeals affirmed the trial court's judgment. REVERSED AND REMANDED. URL: http://www.tba.org/tba_files/TSC/THOMASBD_OPN.WP6

DAVID K. BURNETTE vs. THE TRAVELERS INSURANCE COMPANY and LARRY BRINTON, JR., DIRECTOR SECOND INJURY FUND Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Sandra E. Keith Richard C. May Office of Attorney General Welchel, May & Daniel 1510 Parkway Towers P. O. Box 11407 404 James Robertson Pkwy. Knoxville, TN 37939-1407 Nashville, TN 37243-0499 Judge: THAYER First Paragraph: This appeal has resulted from a finding by the trial court that plaintiff, David K. Burnette, was entitled to 100 percent permanent disability benefits as a result of his injury on December 18, 1994. Since he had a prior award of disability, the court apportioned the award by directing his employer, Target Stores, to pay 15 percent and the State's Second Injury Fund to pay the remaining 85 percent. AFFIRMED AS MODIFIED IN PART; REVERSED IN PART AND REMANDED. URL: http://www.tba.org/tba_files/TSC_WCP/BURNETTE_OPN.WP6

LEA INDUSTRIES vs. CHARLES HIXON Court:TSC - Workers Comp Panel Attorneys: For the Appellant For the Appellee: Richard Baker Debra L. Fulton Gilreath & Associates Frantz, McConnell & Seymour P. O. Box 1270 P. O. Box 39 550 Main Ave., Suite 600 Knoxville, Tenn. 37901 Knoxville, Tenn. 37901 Sandra E. Keith Assistant Attorney General 1510 Parkway Towers 404 James Robertson Parkway Nashville, Tenn. 37243-0499 Judge: THAYER First Paragraph: The appeal has resulted from a finding by the trial court that Defendant, Charles A. Hixon, was entitled to permanent disability benefits of 17.5% to the body as a whole. The Chancellor was of the opinion the award was limited to 2-1/2 times the medical impairment rating of 7% pursuant to T.C.A. S 50-6-241(a)(1). MODIFIED AND AFFIRMED. URL: http://www.tba.org/tba_files/TSC_WCP/LEA_OPN.WP6

DAVID B. MASE vs. COCA-COLA ENTERPRISES, INC. Court:TSC - Workers Comp Panel Attorneys: For the Appellant For the Appellee: Paul D. Hogan, Jr. James R. LaFevor Hogan & Hogan, Attys. Rowland & Rowland 620 W. Hill Ave. 312 Gay Street Knoxvillle, Tenn. 37902 P.O. Box 2111 Knoxville, Tenn. 37901-2111 Judge: THAYER First Paragraph: Defendant, Coca-Cola Enterprises, Inc., has appealed from the trial court's action in awarding plaintiff, David B. Mase, 35% permanent partial disability to the body as a whole. AFFIRMED. URL: http://www.tba.org/tba_files/TSC_WCP/MASE_OPN.WP6

ESTATE OF RICHARD J. HENDERSON, deceased and RONALD W. KOCHER, Executor vs. DR. A. DEAN MIRE, THE BAPTIST HEALTH SYSTEM OF EAST TENNESSEE, INC., d/b/a BAPTIST HOSPITAL OF EAST TENNESSEE, INC. Court:TCA Attorneys: ABBY R. RUBENFELD, Nashville, for Appellant. R. FRANKLIN NORTON, G. GARY SPANGLER and W. MITCHELL CRAMER, Wimberly, Lawson, Norton, & Luhn, Knoxville, for Appellees Baptist Health System of East Tennessee, Inc., or Baptist Hospital of East Tennessee, Inc. STEPHEN C. DAVES, O'Neal, Parker & Williamson, Knoxville, for Dr. Mire. Judge: McMurray First Paragraph: The plaintiff filed an unsigned complaint without a proper bond or pauper's oath, alleging medical malpractice against all defendants. The defendants filed motions for summary judgment which were granted by the court. Judgment was accordingly entered dismissing the action as to all defendants. This appeal resulted. We affirm the judgment of the trial court. AFFIRMED AND REMANDED. URL: http://www.tba.org/tba_files/TCA/HENDERSR_OPN.WP6

REMCO EQUIPMENT SALES, INC. vs. MARY K. MANZ and EDWARD H. MANZ, III Court:TCA Attorneys: For Appellants For Appellee LLOYD A. LEVITT J. CHRISTOPHER HALL Levitt & Levitt Shumacker & Thompson, P.C. Chattanooga, Tennessee Chattanooga, Tennessee Judge: Susano First Paragraph: We are asked to review a portion of the trial court's judgment entered on a jury verdict. The jury found, among other things, that the plaintiff Remco Equipment Sales, Inc. (Remco) was entitled to recover attorney fees as a result of a dispute arising out of a commercial transaction with the defendant Edward H. Manz, III (Manz). In order to resolve this dispute, we must decide if an earlier written rental agreement between the parties--one that provides for attorney fees in case of a dispute--can be used as a basis for a fee award growing out of a subsequent non-documented transaction between these same parties. The trial court ruled that it could. The jury's verdict followed. Manz appealed. REVERSED IN PART AFFIRMED IN PART REMANDED. URL: http://www.tba.org/tba_files/TCA/REMCO_OPN.WP6

BEVERLY SUE SHELL vs. WILLIAM A. LAW Court:TCA Attorneys: For Appellant For Appellee JOHN S. TAYLOR TIMOTHY R. WILKERSON McKinnon, Fowler, Fox & Taylor R. WAYNE CULBERTSON Johnson City, Tennessee Kingsport, Tennessee Judge: Susano First Paragraph: In its present posture, this is a child support case. At an earlier time, the trial court entered judgment on a jury verdict finding that the defendant William A. Law (Father) is the biological father of Adam C. Law. We affirmed the judgment establishing paternity, and the Supreme Court denied permission to appeal. On remand, the trial court addressed issues that it had reserved in the earlier judgment. The court decreed, among other things, that Father was liable to Beverly Sue Shell (Mother) for back child support in the amount of $12,992.18. It also set child support prospectively at $631 per month. Mother appealed. AFFIRMED IN PART VACATED IN PART REMANDED. URL: http://www.tba.org/tba_files/TCA/SHELL_OPN.WP6

THE UNIVERSITY OF TENNESSEE vs/ PRUDENTIAL INSURANCE CO., et al Court:TCA Attorneys: Robert R. Davies, Fansler & Williams, Knoxville, for the Appellant Beauchamp Brogan and Rhonda Alexander, Knoxville, for the Appellee Judge: INMAN First Paragraph: On March 11, 1991, David A. Dugan was driving an automobile owned by Diana K. Burns and insured by Prudential Property & Casualty Company which afforded coverage, inter alia, for medical expenses incurred by an insured, an insured operator, or a passenger in the insured vehicle as a result of bodily injury arising out of the operation and use of the vehicle. While driving Burns' vehicle with her permission, Dugan was injured when he ran into the rear of a tractor trailer and was admitted to the University of Tennessee Medical Center in Knoxville for treatment of his injuries. He was discharged two days later, after the incurrence of medical bills in the amount of five thousand sixty and 76/100ths dollars ($5,060.76). AFFIRMED as MODIFIED. URL: http://www.tba.org/tba_files/TCA/UNIVOFTN_OPN.WP6

STATE OF TENNESSEE vs. JIMMY CULLOP, JR. Court:TCCA Attorneys: For Appellant: For Appellee: Laura Rule Hendricks Charles W. Burson Eldridge, Irvine & Hendricks Attorney General & Reporter Attorneys 606 West Main Street, Suite 350 Michael J. Fahey, II P.O. Box 84 Assistant Attorney General Knoxville, TN 37901-0084 450 James Robertson Parkway (on appeal) Nashville, TN 37243-0493 Terry Jordan Joseph Eugene Perrin Assistant Public Defender Asst District Attorney General P.O. Box 839 P.O. Box 526 Blountville, TN 37617 Blountville, TN 37617 (at trial) Judge: WADE First Paragraph: The defendant, Jimmy Cullop, Jr., was convicted of possession of contraband while in jail under Tennessee Code Annotated S 39-16-201. The trial court imposed a Range I, four-year sentence. The sentence was ordered to be served consecutively to his prior sentence. AFFIRMED. URL: http://www.tba.org/tba_files/TCCA/CULLOP_OPN.WP6

STATE OF TENNESSEE vs. MARK CHRISTOPHER DAVIS Court:TCCA Attorneys: For Appellant: Alan R. Beard 737 Market Street, Suite 601 Chattanooga, TN 37402 For Appellee: Charles W. Burson Attorney General & Reporter Susan Rosen Counsel for the State 450 James Robertson Parkway Nashville, TN 37243-0493 Thomas J. Evans Assistant District Attorney General 600 Market Street, Third Floor Chattanooga, TN 37402 Judge: WADE First Paragraph: The defendant, Mark Christopher Davis, was convicted of second degree murder. The trial court classified the defendant as a Range I offender and imposed a twenty-year sentence. In this appeal of right, the defendant challenges the sufficiency of the evidence and claims the trial court erred by admitting his incriminating, pretrial statements. AFFIRMED. URL: http://www.tba.org/tba_files/TCCA/DAVISMC_OPN.WP6

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