TBALink Opinion-Flash

October 22, 1997 -- Volume #3 -- Number #106

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 Opinons From TSC
02-New Opinons From TSC-Rules
03-New Opinons From TSC-Workers Comp Panel
07-New Opinons From TCA
02-New Opinons From TCCA

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George Dean
TBALink Chief Editor


ALMA JEAN GRAYSON                
vs.
HEALTHTRUST, INC.-                 
THE HOSPITAL COMPANY   

Court:TSC - Workers Comp Panel

Attorneys:

For the Appellant:                  For the Appellee
Ann Buntin Steiner                  W. Reese Willis, III
Steiner & Steiner                   Willis & Knight
214 Second Avenue North             215 Second Avenue North
Suite 203                           Nashville, TN 37201
Nashville, TN 37201-1644 
                          

Judge:WEATHERFORD

First Paragraph:

Plaintiff Alma Jean Grayson, has appealed from the action of the trial
court in dismissing her claim for failure to give timely notice as
required by TENN. CODE ANN. Section 50-6-201 and 50-6-202.

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

TRACY JENKINS       
vs.
BRIDGESTONE/FIRESTONE, INC.

Court:TSC - Workers Comp Panel

Attorneys:
For the Appellant:                      For the Appellees:

Katherine Boyte                         Michael J. Vetter
Julia J. Tate                           BREWER, KRAUSE, 
GRACEY, RUTH, HOWARD, TATE &            BROOKS & MILLS       
    SOWELL                              Nashville, Tennessee  
Nashville, Tennessee                    
                                        Charles R. Niewold
                                        Nashville, Tennessee
                                                          
Judge:Brandt

First Paragraph:

The dispute is between the employee, Tracy Jenkins, her employer,
Bridgestone/Firestone, and her employer's previous insurer, Yasuda
Fire & Marine Insurance Company.  The controversy results from
Jenkins' increased disability following a court-approved workers'
compensation settlement. We conclude that the increased disability is
compensable and pursuant to Tenn. Code. Ann. S50-6-231 she is entitled
to an increase in the previous award.  The statute authorizes the
modification of an award on the ground of increase or decrease of
incapacity due solely to the injury.

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

EMILY MILLS
vs.
BAPTIST HOSPITAL OF EAST        
TENNESSEE, INC

Court:TSC - Workers Comp Panel

Attorneys:

For the Appellant:                  For the Appellee:

James M. Moore                      Barry K. Maxwell
MOORE & SMITH, P.C.                 Reuben N. Pelot, IV
706 Walnut Street, Suite 600        EGERTON, McAFEE, ARMISTEAD
Knoxville, TN 37902                 & DAVIS, P.C.
                                    500 First American Center
                                    P. O. Box 2047
                                    Knoxville, TN 37901                          

Judge:BYERS

First Paragraph:

The trial court found the plaintiff had sustained a 10 percent
vocational impairment to her left lower extremity as a result of an
injury to her knee on September 25, 1991.  The trial court further
found the plaintiff reached maximum medical improvement on March 3,
1993.  Additionally, the trial court found the defendant was not
liable for medical bills incurred by the plaintiff after March 3,
1993.

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

                    JUDICIAL ETHICS COMMITTEE
                    ADVISORY OPINION NO. 97-3


Court:TSC - Rules
                        
First Paragraph:

The committee has been asked to render an opinion for a chancellor
concerning a request he has received from a city police department to
assist them on his "non-judicial time" in firearms training and as a
member of the police department's competing pistol team.  In order to
receive liability insurance coverage, to upgrade his certification as
a firearms instructor, and in order to compete on the police
department's pistol team, it is necessary that he receives a
commission from the police department.

URL:http://www.tba.org/tba_files/TSC_RULES/alissant_wpd.WP6
Opinion-Flash

                    IN RE:  AMENDMENT TO RULE 10,
                RULES OF THE SUPREME COURT OF TENNESSEE
                    CODE OF JUDICIAL CONDUCT


Court:TSC - Rules
                        
First Paragraph:

Rule 10 of the Rules of the Supreme Court of Tennessee, which sets out
the Code of Judicial Conduct, is hereby amended by deleting Section C
of Canon 5 and the accompanying commentary, and replacing it.

URL:http://www.tba.org/tba_files/TSC_RULES/RULE10_AD2.WP6
Opinion-Flash

FAITH BALLARD
vs.
JOHN WETZEL

Court:TCA

Attorneys:

CHRISTOPHER VAN RIPER, STUART & VAN RIPER, Clinton, for Plaintiff
Appellant.

BILL W. PETTY, O'CONNOR , PETTY, CHILD & BOSWELL, Knoxville, for
Defendant-Appellee.
                          
Judge:Franks

First Paragraph:

In this action to recover a Corvette motor vehicle, the Trial Judge,
after trial, ruled that the defendant was entitled to possession of
the vehicle.

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

ANNETTE CHRISTENBERRY       
and J.G. CHRISTENBERRY
vs.
HENRY S. NELSON, JR., M.D., ET AL,

Court:TCA

Attorneys:
ANNETTE CHRISTENBERRY, Pro Se, Seymour, Tennessee.

HOWARD H. VOGEL and STEPHEN C. DAVES, O'NEIL, PARKER & WILLIAMSON,
Knoxville, for Defendants-Appellees.
                          
Judge:Franks

First Paragraph:

In this medical malpractice action, the Trial Court granted the
defendant, Henry S. Nelson, Jr., M.D., summary judgment, and
plaintiffs have appealed.

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

JOYCE BERRYHILL and         
CARTINA BERRYHILL   
vs.
RON G. SWINEA and wife,         
WILLIE JO SWINEA

WILLIAM TUCKER; RANDY TUCKER    
and wife, DONNA E. TUCKER   
CLELAND EZELL and wife, 
SHIRLEY EZELL               

MARGIE L. NEWTON

Court:TCA

Attorneys:
RANDY HILLHOUSE
327 West Gaines Street
P. O. Box 787
Lawrenceburg, Tennessee 38464   
Attorney for Plaintiffs/Appellants

CHARLES W. HOLT, JR.
P. O. Box 357
Lawrenceburg, Tennessee 38464
Attorney for Defendants/Appellees

PAUL PLANT
P. O. Box 399
Lawrenceburg, Tennessee 38464
Attorney for Defendant                          

Judge: CANTRELL

First Paragraph:

The parties to this boundary line dispute all acknowledged that the
deeds to their respective properties described their common boundary
as a straight line, but they differed as to the correct placement of
that line.  After hearing all the proof, the trial court ordered a new
survey to establish a boundary line whose bearings changed in
mid-course, giving each of the parties some of what they claimed.  We
reverse the order of the trial court, because we can find no evidence
in the record to support it.

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

SUSAN LYNN MARTIN BJORK     
(STROUTH)
vs.
JAMES ALBERT BJORK

Court:TCA

Attorneys:
PHILIP E. SMITH
ROBERT TODD JACKSON
Nashville, Tennessee
Attorneys for Appellant


R. STEVEN WALDRON
TERRY A. FANN
WALDRON & FANN
Murfreesboro, Tennessee
Attorneys for Appellee
                          
Judge: HIGHERS

First Paragraph:

Susan Lynn Martin Bjork Strouth (Mother) appeals the trial court's
orders changing temporary and permanent custody of two of the parties'
minor children to Appellee James Albert Bjork (Father).

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

KEVIN CALDWELL
vs.
NISSAN MOTOR MANUFACTURING  
CORPORATION, U.S.A.

Court:TCA

Attorneys:

Shelley I. Stiles
5214 Maryland Way, #210
Brentwood, TN 37027
ATTORNEY FOR PLAINTIFF/APPELLANT

Andree Sophia Blumstein
SHERROD & ROE PLC
424 Church St., Suite 2000
Nashville, TN 37219
ATTORNEY FOR DEFENDANT/APPELLEE,                           

Judge:TODD

First Paragraph:

The plaintiff, Kevin Caldwell, has appealed from a summary judgment
dismissing his suit against Nissan Manufacturing Corp. U.S.A., his
former employer, for damages resulting from the termination of his
employment in retaliation for his claiming workers compensation
benefits.

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

GARY W. PHELPS
vs.
TENNESSEE BOARD OF PAROLES, 
ET AL.,

Court:TCA

Attorneys:

For the Plaintiff/Appellant:        For the Defendants/Appellees:

Gary W. Phelps, Pro Se              J. Knox Walkup
                                    Attorney General and Reporter

                                    Patricia C. Kussmann
                                    Assistant Attorney General
                          
Judge:KOCH

First Paragraph:

This appeal involves a state prisoner's efforts to obtain judicial
review of the decision of the Tennessee Board of Paroles to deny him
parole.  After exhausting his available remedies before the Board, the
prisoner filed a petition for writ of certiorari in the Chancery Court
for Davidson County challenging the Board's decision.  The trial court
dismissed the petition on the ground that it had not been filed within
sixty days as required by Tenn. Code Ann. S 27-9-102 (1980).  We find
that the petition was timely filed and, therefore, vacate the order of
dismissal.

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

WILLIAM SELLERS
vs.
MICHAEL ANDERSON

Court:TCA

Attorneys:

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

Philip D. Irwin                     Robert E. Hoehn
Neal & Harwell                      Rabin P. Nimmo
Nashville, Tennessee                Nimmo, Hoehn, Kirt & Partin
                                    Nashville, Tennessee
                          
Judge:KOCH

First Paragraph:

This appeal involves the dismissal of a de novo appeal from general
sessions court for failure to comply with a local rule requiring that
these appeals be set for trial within forty-five days.  After the
Circuit Court for Davidson County dismissed his appeal, the appellant
filed a Tenn. R. Civ. P. 60.02(1) motion seeking relief from the
judgment.  The trial court denied the motion, and the appellant has
appealed to this court.  We have determined that the appellant
demonstrated grounds for relief under Tenn. R. App. P. 60.02(1) and
accordingly vacate the order denying the appellant's motion for
post-judgment relief.

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

STATE OF TENNESSEE
vs.
CHRISTOPHER ALLEN BERNSTEIN

Court:TCCA

Attorneys:
FOR THE APPELLANT:              FOR THE APPELLEE:

ROBERT M. COHEN                 JOHN KNOX WALKUP
Attorney at Law                 Attorney General & Reporter
303 High Street
Maryville, TN  37804            TIMOTHY F. BEHAN
                                Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                MICHAEL L. FLYNN
                                District Attorney General

                                KIRK E. ANDREWS 
                                Assistant District Attorney General
                                363 Court Street 
                                Maryville, TN  37804-5906                          

Judge:WOODALL

First Paragraph:

The Defendant, Christopher Allen Bernstein, appeals as of right
pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure.  The
Blount County Grand Jury returned an indictment charging Defendant
with rape.  Pursuant to a plea agreement, he pled guilty to the charge
and received an agreed sentence of eight (8) years as a Range I
Standard Offender.  As part of the plea agreement, Defendant was
afforded a sentencing hearing for the trial court to determine the
manner of service of the sentence.  The trial court ordered Defendant
to serve the entire sentence in the Department of Correction.  In this
appeal, Defendant raises two issues:  (1) He argues that the
conviction should be reversed and the charges dismissed because the
indictment fails to allege the mens rea, and (2) he argues the trial
court erred in ordering him to serve his entire sentence in the
Department of Correction.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
RANDY SCOTT MORRELL

Court:TCCA

Attorneys:
For the Appellant:                  For the Appellee:

Stephen M. Wallace                  Charles W. Burson
District Public Defender            Attorney General of Tennessee
     and                            and             
Terry Jordan                        Darian B. Taylor
Assistant Public Defender           Asst Attorney General of Tennessee 
P. O. Box 839                       450 James Robertson Parkway     
Blountville, TN 37617-0839          Nashville, TN 37243-0493

                                    H. Greeley Wells, Jr.
                                    District Attorney General
                                    and
                                    Gene Perrin
                                    Nancy S. Harr
                                    Asst District Attorneys General
                                    P.O. Box 526
                                    Blountville, TN 37617-025                          

Judge:Tipton

First Paragraph:

The defendant, Randy Scott Morrell, is before us in an extraordinary
appeal, T.R.A.P. 10, from the order of the Sullivan County Criminal
Court affirming the prosecuting attorney's denial of his application
for pretrial diversion.  The sole issue for our review is whether the
trial court erred by affirming the denial.

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

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