TBALink Opinion-Flash

September 15, 1997 -- Volume #3 -- Number #086

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


MARVIN McCARLEY AND 
ELLYSE McCARLEY
vs.
WEST QUALITY FOOD SERVICE
d/b/a KENTUCKY FRIED CHICKEN

Court:TSC

Attorneys: 

FOR APPELLEE:                       FOR APPELLANTS:

Clinton V. Butler, Jr.              T. Verner Smith
Dale Conder, Jr.                    Jackson
Rainey, Kizer, Butler,
    Reviere & Bell
Jackson                         

Judge: HOLDER

First Paragraph:

The plaintiffs, Marvin and Ellyse McCarley, appeal the summary
dismissal of their complaint alleging that Mr. McCarley received food
poisoning after ingesting food improperly prepared by the defendant,
Kentucky Fried Chicken.  The trial court granted the defendant's
motion for summary judgment.  The Court of Appeals affirmed and held
that the plaintiffs' proof was insufficient to establish the element
of causation.  We granted appeal to address:  (1)  the Court of
Appeals' analysis in summary judgment dispositions; and (2)  the
quantum and type of proof plaintiffs must proffer to survive summary
dismissal in negligent food poisoning cases.  Upon review, we reverse
and remand for further proceedings consistent with this opinion. COURT
OF APPEALS REVERSED CASE REMANDED.

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

WILLIAM ROBINSON, a/k/a 
BILLY C. ROBINSON
vs.
JAMES R. OMER, SR.

Court:TSC

Attorneys: 

FOR PLAINTIFF/APPELLEE:             FOR DEFENDANT/APPELLANT:

Robert L. Callis                    Winston S. Evans
Callis & Hershey                    Evans, Jones, & Reynolds
Mt. Juliet, Tennessee               Nashville, Tennessee
                         
Judge: DROWOTA

First Paragraph:

The plaintiff, William Robinson, brought this action against the
defendant, attorney James R. Omer, Sr., alleging negligent
misrepresentation.  Robinson asserts that he agreed to secretly
videotape the sexual encounters of his friend, and Omer's client,
Dewey Lineberry, in reliance upon Omer's erroneous advice that the
videotaping was legally permissible.   Robinson initiated this action
seeking to recover compensatory and punitive damages after he settled
the civil lawsuits which were filed against him by some of the women
who were secretly taped. COURT OF APPEALS REVERSED IN PART JUDGMENT OF
TRIAL COURT REINSTATED.

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

KAY E. BLACKWOOD, JR.
vs.
THE BERKLINE CORPORATION 
and CONTINENTAL CASUALTY 
CORPORATION

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellants:                     For Appellee:

Mark C. Travis                      Frank D. Farrar
Cookeville, Tennessee               William Joseph Butler
                                    Lafayette, Tennessee                         

Judge: Loser

First Paragraph:

The appellants contend (1) the award of permanent partial disability
benefits is excessive, (2) it was error for the trial judge to become
a witness in the case and (3) the trial judge abused his discretion by
commuting permanent partial benefits to a lump sum.  The panel has
concluded the award of permanent partial disability benefits should be
modified and, as modified, paid in a lump sum, and the evidential
remarks of the trial judge were harmless in light of our modification.

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

JOSEPH CRAIG
vs.    
MURRAY GUARD, INC. and     
FIREMAN'S FUND INSURANCE CO

Court:TSC - Workers Comp Panel

Attorneys:   

For Appellants:                         For Appellee:

Mark H. Floyd                           Wm. Ritchie Pigue
Susan G. Lindsey                        William G. McCaskill, Jr.
Floyd & Tudor                           Taylor, Philbin, Pigue, 
Nashville, Tennessee                        Marchetti & Bennett          
                                        Nashville, Tennessee                        

Judge: Loser
 
First Paragraph:

In this appeal, the employer and its insurer contend the injury did
not arise out of the employment and that the award of permanent
partial benefits is excessive.  The employee contends the award is
inadequate. AFFIRMED.

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

JOANN GLOVER
vs.
PHILIPS CONSUMER ELECTRONICS
COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

For the Appellant:                  For the Appellees:

G.P. Gaby                           Robert Payne Cave, Sr.
Milligan & Coleman                  104 N. College St.
P.O. Box 1060                       Greeneville, TN  37743
Greeneville, TN 37744-1060                          

Judge: BYERS

First Paragraph:

The plaintiff, who was 38 years of age at the time of this trial and
who has a meager education, testified she fell over a fan on September
15 or 16, 1993 while working for the defendant and injured her back.
The trial judge awarded 31% permanent partial disability to the body
as a whole.  We affirm in part and reverse in part. 

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

ABIGAIL S. HACKETT
vs.
THE FIDELITY & CASUALTY 
COMPANY OF NEW YORK and  
G.F. OFFICE FURNITURE

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:                      For the Appellees:

Elaine Youngblood                       E. Guy Holliman
OTALE, KELLY, HERBERT & CRAWFORD        Lafayette, Tennessee
Nashville, Tennessee                             

Judge: Brandt

First Paragraph:

This case presents the issue of whether permanent partial disability
("PPD") awards of 50% and 25% are excessive in light of anatomical
disability ratings of 12% and 5%.  We conclude that the awards were
not excessive and affirm the trial court's decision.  

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

BRENDA GAIL HOWELL
vs.
MURRAY, INC.

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellant:                          For Appellee:

Ben Boston                              Hershell D. Koger
Christopher V. Sockwell                 Pulaski, Tennessee
Lawrenceburg, Tennessee                         

Judge: Loser

First Paragraph:

The appellant employer insists (1) the award of permanent partial
disability benefits based on sixty percent to the body as a whole is
excessive, (2) the trial court applied an incorrect compensation rate,
and (3) the trial court erred in commuting the award to a lump sum. 
The lump sum issue was withdrawn during oral argument.

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

CHARLES H. SMITH
vs. 
KINETIC CONCEPTS, INC.

Court:TSC - Workers Comp Panel

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:
                            
AUGUST C. WINTER                    D. BRETT BURROW       
Two Brentwood Commons               BREWER, KRAUSE, BROOKS & MILLS
Suite 150                           Suite 2600, The Tower       
750 Old Hickory Boulevard           611 Commerce Street
Brentwood, TN 37027                 Nashville, TN 37203
                         
Judge: RUSSELL

First Paragraph:

We have carefully reviewed and weighed all of the evidence presented
to the chancellor.  The employee appellant contends that he is owed
temporary total and temporary partial benefits denied by the trial
judge, and that the award of 24% permanent partial disability to the
body as a whole is too low.  REVERSED IN PART, AFFIRMED IN PART and
REMANDED.

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

ROBERT STONE
vs.                         
SATURN CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:
                            
J. ANTHONY ARENA                    THOMAS H. PEEBLES, IV 
SCHULMAN, LEROY & BENNETT, P.C.     DANA C. McLENDON, III
P.O. Box 190676                     WALLER, LANSDEN, DORTCH      
Nashville, TN 37219-0676             & DAVIS
                                    P. O. Box 1035
                                    Columbia, TN 38402-1035
                       
Judge: RUSSELL

First Paragraph:

Robert Stone, the appellant, was an assembly line worker for the
Saturn Corporation when, on December 17, 1991, he injured his right
shoulder, elbow and wrist.  AFFIRMED.

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

SHIRLEY WILLIAMS
vs.
SWEETWATER HOSPITAL 
ASSOCIATION

Court:TSC - Workers Comp Panel

Attorneys:  

For the Appellant:              For the Appellee:

John W. Cleveland               Lynn C. Peterson
Cleveland & Cleveland           Wimberly Lawson Norton & Luhn, PLLC
120 W. Morris Street            P. O. Box 2467
Sweetwater, Tennessee 37874     Knoxville, Tennessee 37901-2467                        

Judge: BYERS

First Paragraph:

Plaintiff alleged a work-related aggravation of a pre-existing
non-work related back condition.  She alleged that medical expenses
and temporary total disability benefits had been paid by the employer
but sought permanent partial disability, future medical expenses and
discretionary costs. AFFIRMED.

URL:http://www.tba.org/tba_files/TSC_WCP/WILLIAMS3_OPN.WP6
Opinion-Flash

STEVEN D. BASS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

Steven D. Bass, Pro Se              Charles W. Burson
214227 NECC                         Attorney General & Reporter 
P.O. Box 5000
Mountain City, TN 37683-5000        Peter M. Coughlan
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493
    
                                    David E. Crockett   
                                    District Attorney General
                                    Route 19, Box 99
                                    Johnson City, TN 37601                                       

Judge: SUMMERS

First Paragraph:

The appellant, Steven D. Bass, pled guilty to three counts of
aggravated robbery and one count of aggravated rape.  He received an
effective sentence of fifteen years incarceration.   Thereafter, he
filed a petition for habeas corpus relief alleging that the indictment
against him was fatally insufficient.  The trial court denied the
appellant's petition.  He appeals the trial court's decision by
asserting that State v. Hill, No. 01C01 9508-CC-00267 (Tenn. Crim.
App. at Nashville, June 20, 1996), supports the proposition that the
judgment entered against him is void because the indictment failed to
allege the requisite mens rea for aggravated rape. AFFIRMED.

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

STEVEN D. BASS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:                      FOR THE APPELLEE:


LARRY EDWARD CLAWSON, pro se            JOHN KNOX WALKUP
Federal Correctional Institution        Attorney General & Reporter
P.O. Box 4000  Whitley A
Manchester, KY   40962-4000             MICHAEL J. FAHEY, II
                                        Asst. Attorney General
                                        450 James Robertson Pkwy.
                                        Nashville, TN  37243-0493
                
                                        DAVID CROCKETT
                                        District Attorney General
                                        Rt. 19, Box 99
                                        Johnson City, TN   37601                          

Judge: PEAY

First Paragraph:

The petitioner pled guilty on June 5, 1985, to armed robbery.  He took
no direct appeal from this conviction.  This petition for
post-conviction relief was filed on May 9, 1996.  The court below
dismissed the petition finding that it was barred by the three year
statute of limitations.  We affirm.

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

STATE OF TENNESSEE
vs.
STEVEN F. FARR

Court:TCCA

Attorneys:

FOR THE APPELLANT                   FOR THE APPELLEE

Julie A. Martin                     John Knox Walkup
P.O. Box 426                        Attorney General & Reporter
Knoxville, TN  37901-0426
                                    Marvin E. Clements, Jr.
                                    Assistant Attorney General      
                                    450 James Robertson Parkway 
                                    Nashville, TN  37243 0493   
                
                                    Randall E. Nichols                                      
                                    District Attorney General       

                                    Charme Johnson          
                                    Asst District Attorney General
                                    City-County Bldg.
                                    Knoxville, TN  37901-0426                          

Judge: BYERS

First Paragraph:

The defendant was convicted of two counts of the rape of a child and
two counts of aggravated sexual battery.  He was sentenced to serve 23
years on each rape conviction and 11 years on each of the aggravated
sexual battery convictions as a Range 1 offender.  AFFIRMED.

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

STATE OF TENNESSEE
vs.
LATHANIEL HANEY

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

Susanna L. Thomas                   John Knox Walkup
Assistant Public Defender           Attorney General & Reporter
102 Mims Avenue                     500 Charlotte Avenue
Newport, TN 37821-3614              Nashville, TN 37243-0497

OF COUNSEL:                         Marvin E. Clements, Jr.
                                    Assistant Attorney General
Edwin C. Miller                     450 James Robertson Parkway
District Public Defender            Nashville, TN 37243-0493
P.O. Box 416
Dandridge, TN 37725                 Alfred C. Schmutzer, Jr.
                                    District Attorney General
                                    125 Court Avenue, Suite 301E
                                    Sevierville, TN 37862

                                    Charles E. Atchley, Jr.
                                    Asst District Attorney General
                                    125 Court Avenue, Suite 301E
                                    Sevierville, TN 37862                         

Judge: Jones

First Paragraph:

The appellant, Lathaniel Haney (defendant), was convicted of five (5)
counts of selling cocaine, a Class B felony, two counts of selling
cocaine, a Class C felony, and simple possession of marijuana, a Class
A misdemeanor, by a jury of his peers.  The trial court found the
defendant was a multiple offender and imposed the following Range II
sentences: cases 6124, 6125, 6128, 6129, and 6130, sale of cocaine,
confinement for eighteen (18) years in the Department of Correction in
each case; and cases 6126 and 6127, sale of cocaine less than one-half
gram, confinement for eight (8) years in the Department of Correction
in each case.  AFFIRMED.

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

WILLIAM LEWIS HOWELL
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

LESLIE M. JEFFRESS                  JOHN KNOX WALKUP
1776 Riverview Tower                Attorney General and Reporter
900 S. Gay Street
Knoxville, TN 37902                 MARVIN E. CLEMENTS, JR.
                                    Assistant Attorney General
                                    Cordell Hull Building, 2nd Floor
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    RANDALL E. NICHOLS
                                    District Attorney General
                        
                                    CHARME JOHNSON
                                    Asst District Attorney General
                                    City-County Building
                                    Knoxville, TN 37902                         

Judge: WELLES

First Paragraph:

The Defendant appeals as of right from the trial court's dismissal of
his petition for post-conviction relief without conducting an
evidentiary hearing and without considering the merits of the
petition.  We reverse the judgment of the trial court and remand this
case for further proceedings. REVERSED AND REMANDED.

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

STATE OF TENNESSEE
vs.
PATRICIA LAWSON

Court:TCCA

Attorneys:  

FOR THE APPELLANT                   FOR THE APPELLEE

Herbert Holcomb                     John Knox Walkup
101 Church Street                   Attorney General & Reporter
Rogersville, TN 37857
                                    Marvin E. Clements, Jr.
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493
                            
                                    C. Berkeley Bell, Jr.
                                    District Attorney General

                                    William Floyd Rhea
                                    Asst District Attorney General                              
                                    North Court Street                                      
                                    Sneedville, TN 37869                        

Judge: BYERS

First Paragraph:

On September 26, 1994, the petitioner filed a petition for
post-conviction relief in which she asserts the following issues: A.
Whether Ms. Lawson's plea of guilty was voluntary despite her mental
condition at the time said plea was entered? B. Whether Ms. Lawson was
denied effective assistance of counsel, in that despite her diminished
mental capacity at the times surrounding her case preparation and
entry of her guilty plea, defense counsel did not move the Court for a
mental evaluation. AFFIRMED.

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

EUGENE MONTGOMERY
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:

A. James Andrews
Attorney at Law
606 W. Main St.
Knoxville, Tn.  37902
    
FOR THE APPELLEE:

Charles W. Burson
Attorney General and
Michael J. Fahey
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tn. 37243  

Kenneth Baldwin
Assistant District Attorney
900 E. Elk Ave.
Elizabethton, Tn. 37643                         

Judge: LEE

First Paragraph:

This is an appeal as of right from a judgment of the trial court
summarily dismissing the appellant's petition for post-conviction
relief. The appellant originally filed a writ of habeas corpus.  The
trial court apparently treated the writ as a petition for post
conviction relief and dismissed the petition without appointing
counsel or conducting an evidentiary hearing.  The judgment of the
trial court is reversed. This matter is remanded to the trial court
for an appointment of counsel and an evidentiary hearing.


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

DAVID E. RUTHERFORD 
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant:                  For the Appellee:

Mark E. Stephens                    John Knox Walkup
District Public Defender            Attorney General & Reporter
Sixth Judicial District         
                                    Sandy R. Copous
Paula R. Voss                       Assistant Attorney General
John Halstead                       450 James Robertson Parkway 
Assistant Public Defender           Nashville, TN 37243-0493
1209 Euclid Avenue
Knoxville, TN 37921                 Randall E. Nichols                                      
                                    District Attorney General

                                    Marsha Selecman
                                    Asst District Attorney General
                                    City-County Bldg.
                                    Knoxville, TN  37902                          

Judge: BYERS

First Paragraph:

The appellant was convicted and sentenced to twenty years as a range I
standard offender in September 1984.  On September 17, 1993 the
appellant filed a motion reduction of sentence under Rule 35 of the
Tennessee Rules of Criminal Procedure. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/rutherfo_cca.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