TBALink Opinion-Flash

August 26, 1997 -- Volume #3 -- Number #078

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):
03-New Opinons From TSC
00-New Opinons From TSC-Rules
02-New Opinons From TSC-Workers Comp Panel
08-New Opinons From TCA
05-New Opinons From TCCA

There are three ways to get the full opinion from the Web: (TBALink members only)

  • Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a plain text version of the opinion.

  • *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WP 6.0 document. version of the opinion.

  • Click the URL Link at end of each Opinion paragraph below. This option will allow you to download the original WP 6.0 document.

George Dean
TBALink Chief Editor


TAMMY R. GANZEVOORT 
vs. 
RICHARD B. RUSSELL et al

Court:TSC

First Paragraph:

The plaintiff-appellant has filed a petition to rehear;  the Attorney
General, on behalf of the State, seeks permission to join in the
petition and file an amicus brief, which applications are granted.

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

JOHN JACO 
vs. 
DEPARTMENT OF HEALTH, BUREAU OF MEDICAID

Court:TSC

Attorneys:

For Petitioner-Appellee:            For Respondent-Appellant:

Thomas F. Bloom                     John Knox Walkup 
Nashville                           Attorney General and Reporter 
                                    Nashville

                                    Michael E. Moore 
                                    Solicitor General

                                    Michelle K. Hohnke 
                                    Nashville

Judge: REID

First Paragraph:

This case presents for review the decision of the Court of Appeals
reversing the trial court's dismissal of a petition for judicial
review of an administrative decision.  The judgment of the Court of
Appeals is AFFIRMED.

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

HAROLD E. STEELE, DON PETERSON et al 
vs. 
THE INDUSTRIAL DEVELOPMENT BOARD OF THE METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY et al

Court:TSC

Attorneys:

For Defendant/Petitioner            For Plaintiffs-Respondents:
David Lipscomb University:                  
                                    Joseph H. Johnston
Bradley A. MacLean                  Nashville
Stephen H. Price                    
Farris, Warfield & Kanaday
Nashville

For Defendant/Sovran Bank & Sovran
Bank/Tennessee:

Robert J. Warner, Jr.
Boult, Cummings, Conners & Berry
Nashville

For Industrial Development          For Metropolitan
Board of Nashville and              Government of Nashville and
Davidson County:                    Davidson County:            
Bobby D. Davis                      James L. Charles
McKinney & Davis                    James L. Murphy, III    
Madison                             Paul D. Krivacka
                                    Nashville

For Amicus Curiae State of          For Amicus Curiae Tennessee
Tennessee:                          Municipal League and
                                    Tennessee County Services
Charles W. Burson                   Association:
Attorney General & Reporter
Nashville                           George E. Barrett
                                    Phillip A. Purcell
Michael W. Catalano                 Barrett, Johnston & Parsley
Associate Solicitor General         Nashville

Judge: REID

First Paragraph:

Pursuant to Rule 23, Rules of the Tennessee Supreme Court, the Court
has accepted the following question of law certified by the United
States District Court for the Middle District of Tennessee: Whether
bonds which contain a "liquidity demand" provision, giving bondholders
the right to collect the face value of the bonds upon giving seven (7)
days notice, are bonds "maturing in six (6) months or less from the
date of issuance" within the meaning of Tenn. Code Ann. S
67-2-101(1)(B)(i), such that the interest on the bonds is exempt from
the Tennessee "Hall Income Tax" under Tenn. Code Ann. S67-2-101 et
seq. The decision is that interest on the bonds is subject to the
State income tax.

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

IRA ANTONIO TENPENNY 
vs. 
USAIR, INC.

Court:TSC - Workers Comp Panel

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEES:

JOHN THOMAS FEENEY                  STEVE C. NORRIS 
LEE ANNE MURRAY                     28 Middleton Street 
P.O. Box 198685                     Nashville, TN 37210             
Nashville, TN 37219-8685

Judge: RUSSELL

First Paragraph:

The trial court found that on January 25, 1995, Ira Antonia Tenpenny
sustained a disc herniation at L4-5 with nerve compression in the
course and scope of his employment by USAIR, INC.  The court further
found that Mr. Tenpenny was temporarily and totally disabled from
January 25, 1995, to June 30, 1995; and that he returned to work with
a 17% permanent partial disability to the body as a whole.  Judgment
was also entered for past and future medical expenses and certain
discretionary costs.

URL:http://www.tba.org/tba_files/TSC_WCP/TENPENNY_OPN.WP6
Opinion-Flash

TAMMY S. WATSON JAMES 
vs. 
LIBERTY MUTUAL INSURANCE COMPANY and BETTY
BUSH d/b/a/ McDONALDS OF LAWRENCEBURG

Court:TSC - Workers Comp Panel

Attorneys:

For the Appellant           For the Appellee    For the Appellee
Liberty Mutual Ins. Co:     Tammy S. Watson:    Betty Bush:

Paul Bates                  Herschel D. Koger   D.Randall Mantooth
Christopher V. Sockwell     P. O. Box 1148      James Lee Deckard
Boston, Bates & Holt        Pulaski, TN 38478   Leitner, Williams, 
P.O. Box 357                (on appeal)         Dooley & Napolitan
Lawrenceburg, TN 38464                          2300 1st American Ctr.
Roger N. Hayes                                  Nashville 37238 
P. O. Box 409 
Pulaski, TN 38478 (at trial)

Judge: BYERS

First Paragraph:

The plaintiff originally claimed injury to the right arm while working
at La Del Manufacturing Company and injury to or aggravation of a
pre-existing injury to the left arm at her later employment at
McDonalds of Lawrenceburg.  The two cases were consolidated for trial,
and the trial court dismissed the second employer after the hearing.
Plaintiff was awarded 35% permanent partial disability to each upper
extremity, and the first employer was found liable for both injuries.
AFFIRMED.

URL:http://www.tba.org/tba_files/TSC_WCP/WATSONTS_OPN.WP6
Opinion-Flash

CREATIVE KITCHENS & INTERIORS, Inc. 
vs. 
WILLIAM F. BALE AND BECKY BALE
vs. 
SUSAN SPROUSE SEALS

Court:TCA

Attorneys:

For Appellants                      For Appellees

GAIL F. WORTLEY                     CHARLES A. WAGNER III
Knoxville, Tennessee                Wagner, Myers & Sanger, P.C.
Knoxville, Tennessee

Judge: Susano

First Paragraph:

Creative Kitchens & Interiors, Inc. (CKI) sued William F. and Becky
Bale ("the Bales") for specific performance of two contracts for
design consulting services and the furnishing of cabinets and counter
tops for the Bales' home.  The Bales filed a counterclaim against CKI
and a third-party complaint against Susan Sprouse Seals ("Seals"),
CKI's president. AFFIRMED AND REMANDED.

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

ELBERT W. CREED, SR., and PEGGY CREED 
vs. 
TRACY ALLEN VALENTINE and
SWAIN & SONS TRANSPORT, INC.

Court:TCA

Attorneys:

STEPHEN A. VICKERS, Bristol, Virginia, for Appellants. 
RICK L. POWERS, Arnett, Draper & Hagood, Knoxville, for Appellees.

Judge: McMurray

First Paragraph:

This case originated as an action to recover damages for personal
injuries allegedly suffered in a motor vehicle accident. AFFIRMED AND
REMANDED.

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

STEVE ELDRIDGE and wife, LORI ELDRIDGE 
vs. 
THE CITY OF TRENTON

Court:TCA

Attorneys:

PAUL F. RICE UTLEY & LATIMER, PC Jackson, Tennessee Attorney for
Appellant
T. J. EMISON, JR. Alamo, Tennessee ROBERT KINTON Trenton, Tennessee
Attorneys for Appellee

Judge: HIGHERS

First Paragraph:

In this personal injury action, Steve Eldridge ("Plaintiff") and his
wife, Lori Eldridge ("Wife"), filed suit against the City of Trenton
("Defendant") for injuries and damages sustained when Plaintiff was
shot in the face by an armed robber while working as a clerk in a
liquor store. REVERSED AND DISMISSED.

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

BRUCE HUTTON, Administrator of the Estates of Floyd Hutton 
and Lena Hutton, Deceased 
vs. 
CITY OF SAVANNAH, TENNESSEE

Court:TCA

Attorneys:

JAMES A. HOPPER Savannah, Tennessee Attorney for Appellant

EDWARD L. MARTINDALE, JR. DREW AND MARTINDALE, P.C. Jackson, Tennessee
Attorney for Appellee

Judge: HIGHERS

First Paragraph:

In this wrongful death action, Defendant City of Savannah appeals the
trial court's final judgment awarding $260,000 to Plaintiff/Appellee
Bruce Hutton, administrator of the estates of his parents, Floyd and
Lena Hutton.  AFFIRMED AS MODIFIED.

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

JAMES L. JONES, et al 
vs. 
RANDALL J. HARRIS, MAYOR et al

Court:TCA

Attorneys:

J. Thomas Caldwell Ripley, Tennessee Attorney for
Plaintiffs/Appellants

Charles T. Dyer Wilkes & Dyer Dyersburg, Tennessee Attorney for
Defendants/Appellees

Judge: HIGHERS

First Paragraph:


The Plaintiffs appeal the trial court's final judgment which upheld
the action of the Board of Mayor and Aldermen of the Town of Halls in
entering into a two-year contract with a private contractor for the
collection of solid waste. AFFIRMED.

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

ELEANOR W. PAEHLER, (As Executrix for the Estate 
of Louis Paehler, Deceased) 
vs. 
UNION PLANTERS NATIONAL BANK, INC., 
WEBSTER SAFE AND LOCK CO., INC., 
"BARBIE" ARCHIBALD, JEAN JOHNSON and SCOTT FISHER

Court:TCA

Attorneys:

Eleanor W. Paehler, Pro Se 
Robert L. Crawford and Johnathan P. Lakey;
Wayatt, Tarrant & Combs of Memphis For Appellees, 
Union Planters Bank, Inc., "Barbie" Archibald and Jean Johnson

Judge: CRAWFORD

First Paragraph:

This case involves the alleged theft of the contents of a safe deposit
box.  Plaintiff, Eleanor W. Paehler, appeals the order of the trial
court granting summary judgment to defendants, Union Planters National
Bank, Barbie Archibald, and Jean Johnson. AFFIRMED.

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

STATE OF TENNESSEE DEPARTMENT OF HEALTH/ 
CHILDREN'S SERVICES 
vs. 
JULIE ROGOISH

Court:TCA

Attorneys:

JOHN KNOX WALKUP, Attorney General and Reporter and DIANNE STAMEY
DYCUS, Senior Counsel, Attorney General's Office, Nashville, for
Petitioner-Appellee.

TIMOTHY L. BALDRIDGE, BALDRIDGE & WHEATLEY, P.C., Knoxville, 
for Respondent-Appellant.

Judge: Franks

First Paragraph:

The genesis of this dispute was an order entered by the Juvenile Court
of Knox County declaring defendant's child to be dependent and
neglected, with the temporary custody of the child to the state.
VACATED AND REMANDED.

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

RAVENWOOD PHASE II HOMEOWNERS
ASSOCIATION, GEORGE A. BELLVILLE,
and SUSAN L. PATTON
vs.
FRANKLIN PROPERTY I, LTD.,  
and BILL HODGES

Court:TCA

Attorneys:

For Appellants                      For Appellees

DONALD E. OVERTON                   CLARENCE RISIN
GLENNA W. OVERTON                   STEPHEN G. ANDERSON
Overton & Overton                   Baker, Donelson, Bearman &
Knoxville, Tennessee                Caldwell
                                    Knoxville, Tennessee

Judge: Susano

First Paragraph:

The trial court granted the motion of defendants, Franklin Property I,
Limited, and Bill Hodges ("Franklin"), for sanctions against the
plaintiffs, Ravenwood Phase II Homeowners Association, Inc., George A.
Bellville, and Susan L. Patton ("Ravenwood") and their attorneys, for
failure to comply with an order compelling Ravenwood to respond to
Franklin's interrogatories and requests for production of documents.
AFFIRMED AND REMANDED.

URL:http://www.tba.org/tba_files/TCA/RVNWDPH2_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
DAVID E. JOHNSON

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

LARRY E. FITZGERALD                 JOHN KNOX WALKUP
22 N. Second St., Ste. 410          Attorney General and Reporter
Memphis, TN 38103
                                    GEORGIA BLYTHE FELNER
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    JOHN W. PIEROTTI
                                    District Attorney General

                                    KEVIN R. RARDINI
                                    Asst District Attorney General
                                    Criminal Justice Complex, ste 301
                                    201 Poplar Street
                                    Memphis, TN 38103

Judge: WELLES

First Paragraph:

The Defendant appeals as of right from the sentence imposed on him by
the trial court upon the Defendant's plea of guilty to a charge of
Class D felony theft.  The Defendant was sentenced to the minimum of
two years for his crime, with ninety days to be served in confinement
and the balance to be served on probation.  On appeal, he argues that
the trial court erred in denying him full probation. AFFIRMED.

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

STATE OF TENNESSEE
vs.
RICHARD MADKINS

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

Richard Madkins, pro se             John Knox Walkup 
TDOC #107546                        Attorney General & Reporter
CCA-South Central Correctional Ctr  500 Charlotte Avenue
P. O. Box 279                       Nashville, TN  37243-0497
Clifton, TN  38425-0279
(On Appeal)                         Sarah M. Branch
                                    Assistant Attorney General
L. Kathleen Mitchell                450 James Robertson Parkway
Assistant Public Defender           Nashville, TN  37243-0493
201 Poplar Avenue, Suite 201
Memphis, TN  38103-1947             John W. Pierotti
(At Trial)                          District Attorney General
                                    201 Poplar Avenue, Suite 301
                                    Memphis, TN  38103-1947

                                    Lee V. Coffee
                                    Asst District Attorney General
                                    201 Poplar Avenue, Suite 301
                                    Memphis, TN  38103-1947

                                    Terrell L. Harris
                                    Asst District Attorney General
                                    201 Poplar Avenue, Suite 301
                                    Memphis, TN  38103-1947

Judge: Jones

First Paragraph:

The appellant, Richard Madkins (defendant), was convicted of
especially aggravated robbery, a Class A felony, by a jury of his
peers.  The trial court, finding the defendant to be a career
offender, imposed the maximum sentence within Range III, consisting of
a $50,000 fine and confinement for sixty (60) years in the Department
of Correction. AFFIRMED.

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

NATHANIEL FORD
vs.
STATE OF TENNESSEE

Court:TCCA

First Paragraph:

This matter is before the Court upon the state's motion, pursuant to
Rule 20, Rules of the Court of Criminal Appeals, to affirm the
judgment of the trial court in this case by order rather than formal
opinion.  The above-captioned case represents an appeal from the trial
court's dismissal of the petitioner's petition for writ of habeas
corpus.

URL:http://www.tba.org/tba_files/TCCA/NFORD1_ORD.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
DAVID PRICE

Court:TCCA

Attorneys:

For the Appellant:                  For the Appellee:

Joseph P. Atnip                     Charles W. Burson
District Public Defender            Attorney General of Tennessee
          and                       and             
James David Kendall                 Marvin E. Clements, Jr.
Assistant Public Defender           Ass Attorney General of Tennessee 
P.O. 111 Main Street                450 James Robertson Parkway     
Box 734                             Nashville, TN 37243-0493
Dresden, TN 38225
(AT TRIAL)                          Thomas A. Thomas
                                    District Attorney General
James H. Bradberry                  and
P.O. Box 789                        Jim Cannon
Dresden, TN 38225                   Asst District Attorney General
(AT TRIAL AND ON APPEAL)            P.O. Box 218
                                    Union City, TN 38261
Judge: Tipton

First Paragraph:

The defendant, David Price, was convicted upon his guilty plea in the
Circuit Court of Weakley County for possession with the intent to sell
marijuana, a Class E felony.  He received a sentence of one year in
the custody of the Department of Correction as a Range I, standard
offender to be served in the county jail and a fine of two thousand
dollars.  The defendant appeals as of right a certified question of
search and seizure law that is dispositive of this case: whether the
stop and subsequent search of the defendant's vehicle violated his
Fourth Amendment rights under the United States Constitution and
Article I, Section 7 of the Tennessee Constitution.  See T.R.A.P.
3(b); Tenn. R. Crim. P. 37(b).  AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/PRICE-D_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
WILLIAM HERBERT STITTS

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

THOMAS T. WOODALL                   JOHN KNOX WALKUP
203 Murrell Street                  Attorney General and Reporter
Dickson, TN  37056-1075
                                    ELLEN H. POLLACK
GEORGE MORTON GOOGE                 Assistant Attorney General
District Public Defender            450 James Robertson Parkway
227 West Baltimore Street           Nashville, TN  37243
Jackson, TN  38301
                                    JERRY WOODALL
                                    District Attorney General

                                    DON ALLEN
                                    Assistant District Attorney
                                    P. O. Box 2825
                                    Jackson, TN  38301

Judge: SMITH

First Paragraph:

A Madison County Circuit Court jury found Appellant William Herbert
Stitts guilty of aggravated robbery.  As a Range I standard offender,
he received a sentence of twelve years in the Tennessee Department of
Correction.  The trial court ordered the sentence served concurrent
with another Madison County sentence for aggravated robbery but
consecutive to a Georgia sentence for theft by deception and false
report of a crime. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/STITTSHE_OPN.WP6

Feel free to forward this Opinion-Flash on to any attorney you know of with an internet address, who is not a TBALink member. To Join TBALink - Http://www.tba.org/join.html/

Would you like to receive the TBALink Opinion-Flash each day via e-mail?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE
3) Leave the body of the message blank

Non TBA members are WELCOME to subscribe...it's free!!

Would you like to STOP receiving the TBALink Opinion-Flash?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: UNSUBSCRIBE
3) Leave the body of the message blank


© Copyright 1998 Tennessee Bar Association