TBALink Opinion-Flash

April 28, 1997 -- Volume #3 -- Number #046

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.

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01-New Opinions From TSC
02-New Opinions From TSC-Rules
00-New Opinions From TSC-Workers Comp Panel
22-New Opinions From TCA
00-New Opinions From TCCA

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George Dean
TBALink Chief Editor


STATE OF TENNESSEE
vs.
HENRY EUGENE HODGES

WITH DISSENTING OPINION


Court:TSC

Attorneys:    

FOR APPELLANT:                      FOR APPELLEE:
    
Brock Mehler                        Charles W. Burson
Nashville, Tennessee                Attorney General & Reporter
                            
Donald Dawson                       Kathy Morante
Bruce, Weathers, Corley,            Deputy Attorney General
Dougman & Lyle  
Nashville, Tennessee                Nashville, Tennessee                            
Michael E. Terry                    Victor S. Johnson, III
Nashville, Tennessee                District Attorney General 
                                    Nashville, Tennessee

                                    Thomas B. Thurman
                                    Asst District Attorney General
                                    Nashville, Tennessee

                                    Renee R. Erb
                                    Asst District Attorney General
                                    Nashville, Tennessee                      

Judge: DROWOTA

First Paragraph:

In this capital case, the trial court accepted pleas of guilty entered
by the defendant, Henry Eugene Hodges, to first-degree premeditated
murder  and especially aggravated robbery.  The trial court conducted
a capital sentencing hearing to determine the sentence on the
conviction for premeditated murder in accordance with Tenn. Code Ann.
S 39-13-204(1991 Repl. & Supp. 1996).  In the sentencing hearing, the
jury found three aggravating circumstances: (1) "[t]he defendant was
previously convicted of one or more felonies, other than the present
charge whose statutory elements involve the use of violence to the
person;" (2) "[t]he murder was especially heinous, atrocious or cruel
in that it involved torture or serious physical abuse beyond that
necessary to produce death;" and (3) "[t]he murder was committed while
the defendant was engaged in committing, or was an accomplice in the
commission of, or attempting to commit, or fleeing after committing a
robbery."  Tenn. Code Ann. S39-13-204(I)(2), (I)(5) and (I)(7) (1991
Repl.).  Finding that the three aggravating circumstances outweighed
mitigating circumstances beyond a reasonable doubt, the jury sentenced
the defendant to death by electrocution. TRIAL COURT AND COURT OF
CRIMINAL APPEALS AFFIRMED.

URL:http://www.tba.org/tba_files/TSC/HODGESH_OPN.WP6
URL:http://www.tba.org/tba_files/TSC/HODGESH_DIS.WP6
Opinion-Flash

IN RE:  AMENDMENT TO RULE 24 
        RULES OF THE SUPREME COURT OF TENNESSEE

PROCEDURES GOVERNING PETITIONS FOR WAIVER OF PARENTAL CONSENT FOR
ABORTIONS ON MINORS


Court:TSC - Rules

First Paragraph:

Rule 24 of the Rules of the Supreme Court of Tennessee is hereby
amended by deleting the text of the rule in its entirety and replacing
it with the following: Rule 24.  Rules of procedure governing
petitions for waiver of parental consent  for abortions by minors. --
Pursuant to Tennessee Code Annotated S37-10-304 (i), this rule is
promulgated to ensure that proceedings governing petitions for waiver
of parental consent for abortions by minors are conducted in an
expeditious and anonymous manner.

URL:http://www.tba.org/tba_files/TSC_Rules/RULE24_ORD.WP6
Opinion-Flash

IN RE:  RULE 31 OF THE RULES OF THE TENNESSEE SUPREME COURT


Court:TSC - Rules

First Paragraph:

Pursuant to the requirements of Supreme Court Rule 31, S 11 (A)(7),
the Commission on Alternative Dispute Resolution has recommended to
the Court for certification and approval the individuals listed in
Exhibit A to this Order as having met the eligibility requirements of
Supreme Court Rule 31, subject in certain cases to fulfilling the
additional training requirements set forth in Rule 31, S13(c)(3).

URL:http://www.tba.org/tba_files/TSC_Rules/RULE31_OR3.WP6
Opinion-Flash

ALLSTATE LIFE INSURANCE CO.
VS.
ELIZABETH BARBER, in her individual capacity and as Special
Administratrix of the Estate of Raymond Joe Barber

TORI L. HOLLINGSWORTH, in her individual capacity

Court:TCA

Attorneys: 

BRYAN HOWARD
HOLTON, HOWARD & GOODMAN
424 Church Street
Nashville, Tennessee 37219

PAUL S. DAVIDSON
CHARLES W. COOK, III
STOKES & BARTHOLOMEW, P.A.
424 Church Street
Nashville, Tennessee 37219
    Attorneys for Defendant/Appellee

ROBERT J. NOTESTINE, III
104 Woodmont Boulevard
Suite 115
Nashville, Tennessee 37205
    Attorney for Defendant/Appellant                        

Judge: CANTRELL

First Paragraph:

This case involves the interpretation of a form designating the
appellant as the beneficiary on a life insurance policy.  The trial
court held that the appellant took the policy proceeds as the executor
of the decedent's estate and not as the sole beneficiary.  We affirm.
AFFIRMED AND REMANDED.

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

BAPTIST HOSPITAL, ET AL.
VS.
TENNESSEE DEPARTMENT OF HEALTH

Court:TCA

Attorneys:

CHARLES W. BURSON
Attorney General and Reporter

SUE A. SHELDON
Assistant Attorney General
Cordell Hull Building, 2nd Floor
426 5th Avenue, North
Nashville, Tennessee 37243-0499
    ATTORNEYS FOR DEFENDANTS/APPELLANTS

WILLIAM B. HUBBARD
Weed, Hubbard, Berry & Doughty
Third National Financial Center
424 Church Street, Suite 2900
Nashville, Tennessee 37219

SANFORD E. PITLER
ELIZABETH A. McFALL
Bennett & Bigelow
1111 Third Avenue, Suite 1580
Seattle, Washington, 98101
    ATTORNEYS FOR PLAINTIFFS/APPELLEES                          

Judge: LEWIS

First Paragraph:

This is an appeal by defendants/appellants, the Tennessee Department
of Health and the Tennessee Department of Finance and Administration
("the State"), from a decision of the Tennessee Claims Commission
("the Commission") denying the State's motion to dismiss
plaintiff/appellee's claim.  REVERSED AND REMANDED.

URL:http://www.tba.org/tba_files/TCA/BAPTIST2_OPN.WP6
Opinion-Flash

BLUE CROSS-BLUE SHIELD OF TENNESSEE
vs.
CITY OF LAWRENCEBURG

Court:TCA

Attorneys: 

ROBERT G. NORRED, JR
JANE M. STAHL
Spears, Moore, Rebman & Williams
801 Pine Street, P.O. Box 1749
Chattanooga, Tennessee 37401-1749
    ATTORNEYS FOR PLAINTIFF/APPELLANT

ALAN C. BETZ
White & Betz, Attorneys
22 Public Square, P.O. Box 488
Lawrenceburg, Tennessee 38464
    ATTORNEY FOR DEFENDANT/APPELLEE                         

Judge: LEWIS

First Paragraph:

This is an appeal by plaintiff/appellant, Blue Cross-Blue Shield of
Tennessee ("Blue Cross"), from the trial court's decision which
dismissed Blue Cross's complaint requesting reimbursement from the
City of Lawrenceburg ("the City") for certain claims paid by Blue
Cross.  AFFIRMED AND REMANDED.

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

BRENDA BONDY
vs.
ARNOLD WAYNE MARTIN

Court:TCA

Attorneys:  

For Appellant                       For Appellee

CHARLES E. RIDENOUR                 RANDY G. ROGERS
Sweetwater, Tennessee               Athens, Tennessee                        

Judge: Susano

First Paragraph:

This is a paternity case.  After blood tests showed a 99.999%
probability of paternity, the defendant Arnold Wayne Martin (Father)
acknowledged that he is the father of Melissa Gail Dixon, age 16. 
Based upon Father's acknowledgment, the trial court entered a judgment
of paternity.  As pertinent to this appeal, the trial court also
ordered Father to pay the plaintiff Brenda Bondy (Mother) child
support of $63 per week, effective November 21, 1995, the date on
which the petition in this case was filed.  Mother appealed, arguing
that the trial court should have awarded her support back to August 3,
1979, the child's date of birth.  She also argues that the trial
court's award of fees for her counsel is inadequate.  Finally, she
seeks fees for services rendered by her attorney on this appeal.
VACATED IN PART AFFIRMED IN PART REMANDED.

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

DORIS M. DARDEN
vs.
ALVIN C. YORK, MEDICAL CENTER, and BILLY J. STOKES, 
Commissioner of the Tennessee Department of Employment Security

WITH CONCURRING OPINION

Court:TCA

Attorneys:

Doris M. Darden
3226 Masonwood Drive
Nashville, TN 37207
ATTORNEY FOR PLAINTIFF/APPELLANT

Jeffrey E. Wilson
500 James Robertson Parkway
12th Floor
Nashville, TN 37245-0100
ATTORNEY FOR DEFENDANT/APPELLEE                          

Judge: TODD

First Paragraph:

The petitioner, Doris M. Darden, has appealed from the non-jury
judgment of the Trial Court dismissing her petition for certiorari,
and affirming the decision of the Board of Review denying petitioner's
claim for unemployment benefits.  AFFIRMED AND REMANDED.

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

PHILLIP G. DEBORD
vs.
TENNESSEE BOARD OF PAROLES

Court:TCA

Attorneys:  

DOUGLAS A. TRANT
900 South Gay Street
Suite 1502
Knoxville, Tennessee  37902
    ATTORNEY FOR PETITIONER/APPELLANT

JOHN KNOX WALKUP
Attorney General and Reporter

JOHN R. MILES
Civil Rights and claims Division
Cordell Hull Building, Second Floor
425 5th Avenue North
Nashville, Tennessee  37243-0488
    ATTORNEYS FOR RESPONDENT/APPELLEE
                        
Judge: LEWIS

First Paragraph:

This is an appeal by petitioner/appellant, Phillip G. Debord, from the
decision of the chancery court dismissing his petition for review or,
in the alternative, for writ of certiorari.  The petition asked the
court to review a decision of the Tennessee Board of Paroles ("the
Board") which denied Petitioner parole. AFFIRMED AND REMANDED.

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

CAROLYN MARIE DRAKE
vs.
DAVID CARL DRAKE

Court:TCA

Attorneys:  

HUGH P. GARNER, GARNER, LEWIS & PRICKETT, Chattanooga, for
Petitioner-Appellee.

CHARLES J. GEARHISER and MYRLENE R. MARSA, GEARHISER, PETERS, LOCKABY
& TALLANT, PLLC, Chattanooga, for Respondent-Appellant.
                        
Judge: Franks

First Paragraph:

Petitioner and Respondent are sister and brother, and the Trial Court
issued an order of protection in response to the petition filed,
following an abbreviated trial. VACATED AND REMANDED WITH
INSTRUCTIONS.

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

PAUL GLEN DRAPER
vs.
CURT REAVER and RICHARD ALAN TACEY, JR.

Court:TCA

Judge: KOCH

First Paragraph:

OPINION ON PETITION FOR REHEARING

Curt Reaver has filed a petition for rehearing pursuant to Tenn. R.
App. P. 39 requesting this court to reconsider the portion of its
April 11, 1997 opinion vacating the trial court's summary judgment
dismissing Paul Draper's property damage claim against him.  He
correctly points out that our earlier opinion did not specifically
address his defense that his collision with Mr. Tacey's vehicle did
not cause property damage to either Mr. Draper or his vehicle.  We
grant the petition for the purpose of addressing this issue.

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

JERRY DALE DUFFEY
vs.
WILLIAM CHARLES LEE, et al

Court:TCA

Attorneys:

JERRY DALE DUFFEY, Pro Se
NCSC 7466 Centennial Blvd.
Nashville, Tennessee  37209-1052

CHARLES W. BURSON
Attorney General & Reporter

MARK H. CHEN
Civil Rights & Claims Division
Cordell Hull Building, 2nd Floor
Nashville, Tennessee  37243-0488
    ATTORNEYS FOR DEFENDANTS/APPELLEES                          

Judge: LEWIS

First Paragraph:

This is an appeal by plaintiff/appellant, Jerry Dale Duffey, from the
chancery court's judgment dismissing his complaint against Defendants.
Plaintiff was indicted on thirty-one counts of theft of property by
fraud and/or deceit.  After all was said and done, Plaintiff was
convicted on twenty four of the counts and was sentences to fourteen
years and one month.  The Court of Criminal Appeals affirmed the
conviction. AFFIRMED AND REMANDED.

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

JOHN KOHL & COMPANY, P.C.,
JOHN B. KOHL, III, and HELEN H. KOHL,
Individually, and JOHN B. KOHL, III,
TRUSTEE, as Trustee of the John Kohl &
Company, P.C. Profit Sharing Plan
vs.
DEARBORN & EWING, a Tennessee
General Partnership, and DAN E. HUFFSTUTTER

Court:TCA

Attorneys: 

STEVEN C. DOUSE
King & Ballow
1200 Noel Place
200 Fourth Avenue, North
Nashville, Tennessee  37219
    ATTORNEY FOR PLAINTIFFS/APPELLANTS

JOHN BRANHAM
KATHRYN BARNETT
Branham & Day
150 Fourth Avenue North
Suite 1910
Nashville, Tennessee  37219
    ATTORNEYS FOR DEFENDANTS/APPELLEES                         

Judge: LEWIS

First Paragraph:

This is an appeal by plaintiffs/appellants, John and Helen Kohl, from
a decision of the Davidson County Circuit Court.  The trial court
awarded Plaintiffs a total of $33,091.05 for the legal malpractice of
defendants/appellees, Dearborn & Ewing and Dan E. Huffstutter, and
held the remainder of Plaintiffs' claims were barred by the statute of
limitations. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

MARGARET S. LEMM
vs.
GARY L. ADAMS

GARY L. ADAMS
vs.
ANNA FRIESENHAHN

Court:TCA

Attorneys:  

CHARLES C. MORROW
MORROW, BOWHAN & ASSOCIATES
Nashville, Tennessee
Attorney for Appellants

BARBARA J. PERUTELLI
SCHULMAN, LeROY & BENNETT, P.C.
Nashville, Tennessee
Attorney for Appellee                        

Judge: HIGHERS

First Paragraph:

In this boundary dispute, Plaintiff Margaret S. Lemm and Third-Party
Defendant Anna Friesenhahn appeal the trial court's order entering
summary judgment in favor of Defendant/Appellee Gary L. Adams.  In
granting Adams' motion for summary judgment, the trial court ruled
that, as a matter of law, Lemm's action for trespass and injunctive
relief was barred by Adams' adverse possession of the disputed
property for a period in excess of seven years. We affirm. AFFIRMED.

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

FREDA G. MOON
vs.
ST. THOMAS HOSPITAL

Court:TCA

Attorneys:

HARLAN DODSON, III
ANNE C. MARTIN
JULIE K. SANDINE
Dodson, Parker & Behm
306 Gay Street
400 Realtors Building
P. O. Box 198066
Nashville, Tennessee  37219
    ATTORNEYS FOR PLAINTIFF/APPELLANT

MARY MARTIN SCHAFFNER
Howell & Fisher
Court Square Building
300 James Robertson Parkway
Nashville, Tennessee  37201-1107
    ATTORNEY FOR DEFENDANT/APPELLEE                          

Judge: LEWIS

First Paragraph:

This law suit arose out of the death of Ray Elmer Garrett which
occurred while he was a patient at St. Thomas Hospital, the defendant
below.  Finding that, as a matter of law, the events surrounding Mr.
Garrett's death were not reasonably foreseeable, the Davidson County
Circuit Court granted the defendant hospital summary judgment.  Freda
Moon, the decedent's daughter, has appealed to this court arguing that
this was not a proper case for summary judgment.  We disagree. 
Accordingly, we affirm the decision of the trial court. AFFIRMED AND
REMANDED.

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

NATIONAL LOANS, INC., Jackson, Tennessee, 
Memphis, Tennessee, Milan, Tennessee
vs.
TENNESSEE DEPARTMENT OF FINANCIAL INSTITUTIONS

Court:TCA

Attorneys: 

For the Petitioner/Appellant:       For the Respondent/Appellee:

William B. Hubbard                  Charles W. Burson
Brenner Lackey Van Meter            Attorney General and Reporter
Weed, Hubbard, Berry & Doughty
Nashville, Tennessee                Michael E. Moore
                                    Solicitor General
W.J. Michael Cody
Burch, Porter and Johnson           Janet M. Kleinfelter
Memphis, Tennessee                  Assistant Attorney General

Lynn Fitch Mitchell
Holcomb, Dunbar, Connell, 
Chaffin & Willard                   For the Intervenors:
Jackson, Mississippi
                                    Val Sanford
                                    Gullett, Sanford, Robinson                                  
                                    & Martin
                                    Nashville, Tennessee                         

Judge: KOCH

First Paragraph:

This appeal involves the revocation of the certificates of
registration of three branch offices of an industrial loan and thrift
company.  The Commissioner of Revenue, sitting for the Commissioner of
Financial Institutions, revoked the certificates after determining
that the company's real estate loan charges and its handling of credit
life insurance death claims violated the Industrial Loan and Thrift
Act.  The company sought judicial review in the Chancery Court for
Davidson County.  After remanding the case for discovery relating to
the company's selective enforcement claim, the trial court affirmed
the revocation of two of the branch offices' certificates and reversed
the revocation of the third office's certificate.  The company asserts
on this appeal that the administrative law judge improperly limited
additional discovery concerning its selective enforcement claim, that
the Department of Financial Institutions was selectively enforcing the
Industrial Loan and Thrift Act, and that the revocation of the
certificates of its two branch offices was not supported by
substantial and material evidence.  The Department asserts that the
trial court erred by reversing its revocation of the third branch
office's certificate.  We have determined that additional discovery
concerning the selective enforcement claim was not warranted, that the
Department did not selectively enforce the Industrial Loan and Thrift
Act, and that the evidence supports the revocation of all three branch
offices' certificates of registration. AFFIRMED IN PART; REVERSED IN
PART; AND REMANDED.

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

WILLIAM P. NEWTON
vs.
JAMES S. COX

Court:TCA

Judge: FARMER

First Paragraph:

The appellee has filed a motion for a rehearing in this matter. 
Contrary to Appellee's assertion, this Court did not rule that the
contract between Ms. Newton and Mr. Cox was voided.  Perhaps Appellee
interpreted the portion on page 2 of our opinion which states that
"the Supreme Court's decision in Newton v. Cox, 878 S.W.2d 105
(Tenn.), cert. denied, 115 S.Ct. 1889 (1994), confirmed that Newton
had the right to void the fee contract entered into by the parties" as
referring to all of the parties to the contract rather than to the
parties to the present suit, Mr. Newton and Mr. Cox.

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

JAMES PRICE
vs.
TENNESSEE CIVIL SERVICE COMMISSION

Court:TCA

Attorneys:

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

J. Ronnie Greer                     Charles W. Burson
Greeneville, Tennessee              Attorney General and Reporter

                                    James C. Floyd
                                    Assistant Attorney General                          

Judge: KOCH

First Paragraph:

This appeal involves an employee of the Tennessee Department of Mental
Health and Mental Retardation who was terminated for using excessive
force against a resident at Green Valley Development Center.  The
employee filed a petition for judicial review in the Chancery Court
for Davidson County alleging that the Civil Service Commission's
decision to uphold his termination was not supported by substantial
and material evidence. The trial court affirmed the Commission's
termination order, and the employee has perfected this appeal.  We
have determined that the decision to terminate the employee is
supported by substantial and material evidence and, therefore, affirm
the trial court in accordance with Tenn. R. App. P. 10(b). AFFIRMED
AND REMANDED.

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

PROFILL DEVELOPMENT, INC.
vs.
DON DILLS, COMMISSIONER OF THE TENNESSEE DEPARTMENT 
OF ENVIRONMENT AND, CONSERVATION, ET AL

Court:TCA

Attorneys:  

J. Alan Hanover,
James R. Newsom, III,
Helen L. Keith,
HANOVER, WALSH, JALENAK & BLAIR, PLLC, Memphis, Tennessee
Attorneys for Plaintiff/Appellant.

Charles W. Burson, Attorney General and Reporter
Elizabeth P. McCarter, Senior Counsel 
Attorney for Defendants/Appellees Don Dills and Charles W. Burson

Gary A. Davis, Knoxville, Tennessee
Attorney for Defendant/Appellee West Tennesseans for Clean Water and
Environment.

Judge: FARMER

First Paragraph:

his appeal from a declaratory judgment lawsuit arose out of
Appellant's attempts to construct and to operate a solid waste
landfill.  In 1992, Profill Development, Inc. (hereinafter, "Profill")
applied to the Tennessee Department of Environment and Conservation
(hereinafter, "Department") for a solid waste disposal permit to
construct and to operate a "Class I disposal facility" in Gallaway,
Fayette County, Tennessee.  The Tennessee Solid Waste Disposal Act,
T.C.A. S68-211-101 et seq. (1996) authorizes the Tennessee Solid Waste
Disposal Control Board (hereinafter, "the Board") to promulgate rules
governing solid waste processing and disposal facilities. AFFIRMED AND
REMANDED.

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

MICHAEL RASMUSSEN and wife  
CINDY RASMUSSEN
vs.
MROT, INC. and WILLIAM G. ROYSTER

Court:TCA

Attorneys: 

For the Plaintiffs/Appellants:      For the Defendants/Appellees:

Michael J. Philbin                  John Thomas Feeney
William G. McCaskill, Jr.           Lee Anne Murray
TAYLOR, PHILBIN, PIGUE,             FEENEY & LAWRENCE
    MARCHETTI & BENNETT             Nashville, Tennessee
Nashville, Tennessee
                         
Judge: KOCH

First Paragraph:

This appeal involves an over-the-road truck driver who was injured
while a stack of commercial truck tires was being unloaded from the
trailer on his truck.  The driver filed a negligence action in the
Circuit Court for Davidson County against the tire service company
where the tires were being delivered and the operator of the forklift
carrying the tires when they fell.  The trial court determined that
the doctrine of res ipsa loquitur was inapplicable to this case and
granted the defendants' motion for summary judgment.  The driver
asserts on this appeal that he made out a prima facie case of
negligence under the doctrine of res ipsa loquitur.  We affirm the
summary judgment. AFFIRMED AND REMANDED.

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

AMANDA MARIE SMITH, 
CHARLES BRENT SMITH,    
and wife CONNIE SMITH
vs.
THE CASTNER-KNOTT
DRY GOODS COMPANY

Court:TCA

Attorneys: 

For the Plaintiffs/Appellants:      For the Defendant/Appellee:

Ronald H. Bice, Jr.                 D. Randall Mantooth
Nashville, Tennessee                Leitner, Warner, Moffitt, 
                                        Williams, Dooley & Napolitan
                                    Nashville, Tennessee
                         
Judge: KOCH

First Paragraph:

This appeal concerns a seven-year-old girl who was injured when a
decorative mirrored tile fell from a wall in a department store.  The
child and her parents filed a negligence action against the department
store in the Circuit Court for Davidson County.  The trial court
granted the department store's motion for summary judgment.  On this
appeal, the child and her parents assert that summary judgment was
improper because of factual disputes concerning the department store's
knowledge of the mirrored tiles' condition and because the undisputed
facts made out a prima facie case of liability under the doctrine of
res ipsa loquitur.  We affirm the summary judgment. AFFIRMED AND
REMANDED.

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

SOUTHERN REHABILITATION 
SPECIALISTS, INC.
vs.
ASHLAND HEALTH CARE CENTER, INC., d/b/a OAKMONT 
CARE CENTER; and DON L. BREWER, GARY BREWER, 
GARY G. BROWN, and S. W. CREEKMORE, JR.,
PARTNERS d/b/a OAKMONT CARE CENTER              

MONARCH NURSING HOME, INC.

Court:TCA

Attorneys:   

ROBERT A. ANDERSON
Nashville, Tennessee
Attorney for Appellant, Ashland Health Care Center, Inc.

ROBERT L. PERRY, JR.
Ashland City, Tennessee
Attorney for Appellee, Southern Rehabilitation Specialists, Inc.
                     
Judge: HIGHERS

First Paragraph:

Defendant Ashland Healthcare Center, Inc. (Ashland), appeals the
judgment entered against it in this breach of contract action.  The
contract at issue was between Plaintiff/Appellee Southern
Rehabilitation Specialists, Inc. (Southern Rehab), and Oakmont
Healthcare Center (Oakmont).  In imposing liability against Ashland,
the trial court ruled that Pete Prins, the administrator of Oakmont
and an employee of third party defendant Monarch Nursing Homes, Inc.
(Monarch), had the authority to bind Ashland to the contract between
Southern Rehab and Oakmont.  For the reasons hereinafter stated, we
reverse the judgment against Ashland and remand for further
proceedings. REVERSED AND REMANDED.

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

UNITED BRAKE SYSTEMS, INC., dba MIDLAND GRAU HEAVY DUTY
SERVICE CENTER, ECHLIN, INC., BRAKE SYSTEMS, INC. and FRICTION
MATERIALS, INC. 
vs.
AMERICAN ENVIRONMENTAL PROTECTION, INC.
and     
LEE BARR

Court:TCA

Attorneys: 

PHILIP M. KIRKPATRICK
JOHN E. ANDERSON
Stewart, Estes & Donnell
SunTrust Center
424 Church Street, 14th Floor
Nashville, Tennessee  37219-2392
    ATTORNEYS FOR PLAINTIFFS/APPELLEES

JOE F. GILLESPIE, JR.
6408-A Clarksville Highway
Joelton, Tennessee 37080
    ATTORNEY FOR DEFENDANT/APPELLEE
    LEE BARR

JOSEPH L. LACKEY, JR.
Lackey, Rodgers, Price & Snedeker
1230 First American Center
Nashville, Tennessee  37238-1230 
    ATTORNEYS FOR DEFENDANT/APPELLANT
    AMERICAN ENVIRONMENTAL PROTECTION, INC.                         

Judge: LEWIS

First Paragraph:

This is an appeal by defendant/appellant, American Environmental
Protection, Inc. ("AEP"), from a jury verdict rendered in the Davidson
County Chancery Court.  The jury determined AEP was liable to
plaintiff/appellee, United Brake Systems, Inc. ("UBS"), for
misrepresentation, conversion, and unfair competition.  In addition,
the court directed a verdict against AEP on UBS's breach of contract
claim.  The jury awarded UBS $130,892.00, court costs, attorney's
fees, and $100,000.00 in punitive damages.  The jury also determined
AEP was liable to defendant/appellee, Lee Barr, for misrepresentation
and awarded him $25,000.00 plus legal fees. AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.

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

JOSEPH G. WALKER, ET AL.
vs.
BOARD OF EDUCATION OF WILSON COUNTY

Court:TCA

Attorneys:

WILLIAM L. HARBISON
Sherrard & Roe, PLC
424 Church Street, Suite 2000
Nashville, Tennessee 37219
    ATTORNEY FOR APPELLANT LALETA SHIPPER

HENRY CLAY BARRY
106 South College Street
Lebanon, Tennessee 37087
    ATTORNEY FOR APPELLANT ALLEN BARRY

ERNEST W. COTTEN
202 East Gay Street
Lebanon, Tennessee 37087
    ATTORNEY FOR APPELLANT JOSEPH G. WALKER

MICHAEL R. JENNINGS
Wilson County Attorney
326 N. Cumberland Street
Lebanon, Tennessee 37087
    ATTORNEY FOR APPELLEE BOARD OF EDUCATION
    OF WILSON COUNTY                          

Judge: LEWIS

First Paragraph:

This is an appeal by plaintiffs/appellants, Joseph G. Walker, Laleta
Shipper and Allen Barry, from a decision of the trial court dismissing
their complaint to recover attorneys' fees from defendant/appellee,
the Board of Education of Wilson County ("the Board"). AFFIRMED AND
REMANDED.

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

JANET L. WOLF and   
GERALD S. BOWKER
vs.
DON SUNDQUIST, in  his official capacity as Governor of the State of
Tennessee; JOHN KNOX WALKUP, in his official capacity as Attorney
General of the State of Tennessee; VICTOR S. JOHNSON, III, in his
official capacity as District Attorney General for the 20th Judicial
District for the State of Tennessee, and DAN M. ALSOBROOKS, in his
official capacity as District Attorney General for the 23rd Judicial
District of the State of Tennessee, and as representatives of all
District Attorneys General in the State of Tennessee

Court:TCA

Attorneys:        

For the Plaintiffs/Appellants:      For the Defendants/Appellees:

Irwin Venick                        Jerry L. Smith
DOBBINS & VENICK                    Deputy Attorney General
Nashville, Tennessee                Nashville, Tennessee                  

Judge: KOCH

First Paragraph:

This appeal involves the right of persons unalterably opposed to the
death penalty to serve as jurors in capital murder cases.  Two persons
who had been excused for cause in separate capital cases filed suit in
the Circuit Court for Davidson County, seeking a declaration that
excusing prospective jurors who, as a matter of religious conscience,
could not consider imposing the death penalty violated the prospective
jurors' constitutional rights.  The trial court dismissed the
complaint, and the jurors appealed.  We have determined that the
practice of excluding jurors whose religious principles prevent them
from considering the death penalty regardless of the law and the
evidence is not an unconstitutional religious test, does not violate
the jurors' constitutionally protected freedom of religion, and does
not unconstitutionally discriminate against these jurors. 
Accordingly, we affirm the judgment. AFFIRMED AND REMANDED.

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

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