TBALink Opinion-Flash

November 19, 1997 -- Volume #3 -- Number #121

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
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
12-New Opinons From TCA
03-New Opinons From TCCA

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George Dean
TBALink Chief Editor


WILLIAM JEFF BOYLE
vs.
VIRGINIA THOMAS

Court:TCA

Attorneys:

For the Plaintiff/Appellee:         For the Defendants/Appellants

Robert A. McLean                    Kenneth R. Shuttleworth   
Thomas J. Walsh, Jr.                Archie Sanders, III
Memphis, Tennessee                  Memphis, Tennessee            
                                            
Judge: LILLARD

First Paragraph:

This is a dog bite case that was heard by an arbitrator.  The trial
court vacated the arbitration award on the basis that the arbitrator
misapplied the law.  Based on Arnold v. Morgan Keegan & Co., 914
S.W.2d 445 (Tenn. 1996), we reverse.

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

SUSIE BUCHANAN
vs.
MEMPHIS LIGHT, GAS & WATER      
DIVISION

Court:TCA

Attorneys:

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

Brett B. Stein                      James F. Greer            
Memphis, Tennessee                  Memphis, Tennessee             
                                            
Judge: LILLARD

First Paragraph:

This case involves a de novo appeal from general sessions court to
circuit court.  The plaintiff obtained a default judgment in general
sessions court.  On appeal to circuit court, the defendant sought to
assert the applicable statute of limitations.  The trial court ruled
that the defendant had waived the defense by failing to raise it in
the general sessions court.  We reverse.

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

LARRY CORDER
vs.
AUTRY GATEWOOD

Court:TCA
                        
Judge:LILLARD

First Paragraph:

In this case, Plaintiff/Appellant, Larry Corder, has appealed from the
judgment of the Trial Court dismissing his suit against the defendant,
Autry Gatewood.  In its order of September 16, 1996, the trial court
entered judgment in favor of the Defendant/Counter-Plaintiff in the
amount of $762.25 in actual damages and $3,500.00 in punitive damages.

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

KITSIE LEE HENDRIX
vs.
JAMES S. COX & ASSOCIATES,      
JAMES S. COX, RUSSELL FOWLER,   
SCOTT F. MAY, and KENNETH       
OWEN KING

Court:TCA

Attorneys:

For the Defendant/Appellee,         For the Defendant/Appellee, 
Kenneth Owen King:                  Scott F. May:

Alan R. Strain                      Scott F. May
Memphis, Tennessee                  Memphis, Tennessee 

For the Defendants/Appellees,       For the Plaintiff/Appellant:
James S. Cox & Associates, 
James S. Cox
and Russell Fowler:                 Duncan E. Ragsdale
                                    Memphis, Tennessee
Hal Gerber   
Lewie R. Polk, III
Memphis, Tennessee            
                                            
Judge: LILLARD

First Paragraph:

This is a malicious prosecution case.  In the suit underlying the
malicious prosecution claim, the trial court ruled in a manner
favorable to the Appellees, and the trial court's ruling was reversed
on appeal by this Court.  In the subsequent malicious prosecution
action, the trial court granted summary judgment in favor of the
Defendant/Appellees.  Based on the trial court's ruling in the
underlying lawsuit, we find that the trial court in this case properly
granted summary judgment, and therefore affirm.

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

HARRIS HUGHES, JR., 
vs.
TENNESSEE SEEDS OF  
BROWNSVILLE, INC., WATERFIELD   
GRAIN CO., INC., LINDA FREEMAN, 
in her capacity as Manager of   
TENNESSEE SEEDS OF  
BROWNSVILLE, INC., FMC  
CORPORATION, and MILES  
CORPORATION

Court:TCA

Attorneys:

Robert L. Green,
Darryl D. Gresham,
NEELY, GREEN, FARGARSON, BROOKE & SUMMERS, Memphis, Tennessee
Steven R. Walker, Memphis, Tennessee
Attorneys for Plaintiff/Appellant.

James M. Doran, Jr.,
E. Frances Coughlin,
MANIER, HEROD, HOLLABAUGH & SMITH
Attorneys for Defendants/Appellees Tennessee Seeds of Brownsville,
Inc., Waterfield Grain Co., Inc., and Linda Freeman.

Matthew J. Sweeney, III, Nashville, Tennessee
Lee Davis Thames, Jackson, Mississippi
Michael E. McWilliams, Jackson, Mississippi
Attorneys for Defendant/Appellee FMC Corporation.

Larry E. Killebrew,
Bradley E. Trammell,
BAKER, DONELSON, BEARMAN & CALDWELL, Memphis, Tennessee
Jack E. Urquhart,
John W. Ghezzi,
HOTLZMAN & URQUHART, P.C., Houston, Texas
Attorneys for Defendant/Appellee Miles, Inc.                          

Judge:FARMER

First Paragraph:

Plaintiff Harris Hughes, Jr., appeals the trial court's order entering
summary judgment in favor of Defendants/Appellees Tennessee Seeds of
Brownsville, Inc., Waterfield Grain Company, Linda Freeman (in her
capacity as manager of Tennessee Seeds), FMC Corporation, and Miles
Corporation.  We reverse in part the trial court's judgment based on
our conclusion that the Federal Insecticide, Fungicide and Rodenticide
Act (FIFRA) does not preempt all of Hughes' state-law claims against
the Defendants.

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

MONTEE H. CARRUTHERS JOHNSON,
vs.
NATHAN JOHNSON

Court:TCA

Attorneys:

For the Plaintiff/Appellant:        For the Defendant/Appellee:
James V. Ball                       Arthur Mayhall    
Memphis, Tennessee                  Harry Scruggs, Jr.       
                                    Memphis, Tennessee 
                         
Judge: LILLARD

First Paragraph:

This is a divorce case involving an Illinois decree.  An Illinois
court granted a divorce to the husband and awarded the marital
residence in Tennessee to the husband.  The Tennessee trial court
enforced the Illinois court's award of property, and the wife appeals.
 Because the Illinois court did not have personal jurisdiction over
the wife, we reverse and remand.

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

CITY OF MEMPHIS
vs.
CIVIL SERVICE COMMISSION OF     
THE CITY OF MEMPHIS, AND        
DAVID LOCASTRO

Court:TCA

Attorneys:

For the Plaintiff/Appellee:         For the Defendant/Appellant, 
                                    David Locastro:

Monice Moore Hagler                 William D. Massey                
Alicia A. Howard                    Memphis, Tennessee             
Memphis, Tennessee
                          
Judge: LILLARD

First Paragraph:

This case involves the review of a decision by the City of Memphis
Civil Service Commission.  A firefighter was terminated for conduct
unbecoming a firefighter.  The Civil Service Commission reinstated the
employee, and the trial court reversed that decision.  We find that
the decision of  the Civil Service Commission was not arbitrary or
capricious and was supported by substantial and material evidence. 
Consequently, we reverse the decision of the trial court.

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

MISSISSIPPI FARM BUREAU         
MUTUAL INSURANCE COMPANY,   
vs.
LATONIA SCRUGGS JONES and   
THOMAS JONES

Court:TCA

Attorneys:

For the Plaintiff/Appellee:         For the Defendants/Appellants:
Melanie M. Shuttleworth             Phil Zerilla, Jr.        
Memphis, Tennessee                  Memphis, Tennessee 
                                           
Judge: LILLARD

First Paragraph:

In this case, an insurance company sought declaratory judgment on the
issue of whether the language in the insurance policy automatically
increased the policy's coverage limits to those required by
Tennessee's Financial Responsibility Law, absent certification of the
policy.  The trial court ruled that it did not.  We affirm.

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

BRENDA PRATT
vs.
SMART CORPORATION

Court:TCA

Attorneys:

For Appellant                   For Appellee

DONALD K. VOWELL                DAN D. RHEA
ROBERT R. CARL II               Arnett, Draper & Hagood
Vowell & Carl                   Knoxville, Tennessee
Knoxville, Tennessee

JAMES H. HICKMAN III
Knoxville, Tennessee

THOMAS A. SNAPP
Ayres & Parkey
Knoxville, Tennessee
                          
Judge:Susano

First Paragraph:

The plaintiff, Brenda Pratt ("Pratt"), filed suit to recover a portion
of the payment made by her to the defendant, Smart Corporation
("Smart"), for copies of her medical records.  The trial court granted
Smart's motion for summary judgment, concluding that the relevant
statute does not permit a "recovery for this plaintiff against this
defendant."  Pratt appealed.

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

ALOMA ROBIN RANDOLPH
vs.
TIMOTHY CHARLES RANDOLPH

Court:TCA

Attorneys:

For Appellant                   For Appellee

EDWARD KERSHAW                  ROGER A. WOOLSEY
Leonard & Kershaw               Woolsey & Woolsey
Greeneville, Tennessee          Greeneville, Tennessee
                          
Judge:Susano

First Paragraph:

Following a bench trial, the court below modified the parties'
judgment of divorce by changing the custody of their minor child,
Brandon Charles Randolph (DOB: February 19, 1990), from Aloma Robin
Randolph ("Mother") to Timothy Charles Randolph ("Father").  Mother
appealed, arguing that the trial court erred in finding that a
material change in circumstances had occurred since the divorce.

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

KENNETH R. RUDSTROM,            
EXECUTOR OF THE ESTATE OF   
FRANK E. MUSTIN, Deceased
vs.
RONALD S. TERRY, Individually and   
d/b/a RONALD S. TERRY           
CONSTRUCTION CO., INC.

Court:TCA

Attorneys:

For the Appellant:              For the Appellee:

S. Newton Anderson              Rex L. Brasher, Jr.
Memphis, Tennessee              Memphis, Tennessee     
                          
Judge: LILLARD

First Paragraph:

This case involves a claim against an estate for money allegedly
loaned to the decedent while he was alive.  The trial court found the
evidence sufficient to establish that the check written to the
decedent was a loan, not payment on a debt.  We affirm.

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

WALTER D. WILLS, III
vs.
RAY B. GILL, III

Court:TCA

Attorneys:

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

Mark D. Griffin                     James W. Surprise
Memphis, Tennessee                  Memphis, Tennessee    
                                                
Judge: LILLARD

First Paragraph:

This is an arbitration case.  The appellant argues that the
arbitrator's award should have been vacated because it was handed down
long after the time period for rendering a decision set forth in the
arbitration agreement.  Because this issue was not raised before the
trial court, we affirm.

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

STATE OF TENNESSEE
vs.
CARLOS COMAN

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

Jan R. Patterson                John Knox Walkup
Attorney at Law                 Attorney General & Reporter
225 West Baltimore, Suite B     500 Charlotte Avenue
Jackson, TN 38301               Nashville, TN 37243-0497

                                Kenneth W. Rucker
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-4351

                                James G. Woodall
                                District Attorney General
                                P.O. Box 2825
                                Jackson, TN 38302-2825

                                James W. Thompson
                                Assistant District Attorney General
                                P.O. Box 2825
                                Jackson, TN 38302-2825

                                Christopher J. Schultz
                                Assistant District Attorney General
                                P.O. Box 2825
                                Jackson, TN 38302-2825                          

Judge:Jones

First Paragraph:

The appellant, Carlos Coman (defendant), was convicted of second
degree murder, a Class A felony, by a jury of his peers.  The trial
court, finding the defendant to be a standard offender, imposed a
Range I sentence consisting of confinement for twenty (20) years in
the Department of Correction.  In this court, the defendant presents
five issues for review.  He contends the evidence is insufficient to
support his conviction.  He also contends the trial court committed
error of prejudicial dimensions by denying his motion to suppress the
statement he gave to the police, excluding the terms of the victim's
plea bargain agreement prior to his murder, failing to give an
instruction on identification, and imposing an excessive sentence. 
After a thorough review of the record, the briefs submitted by the
parties, and the law governing these issues, it is the opinion of this
court that the judgment of the trial court should be affirmed.

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

STATE OF TENNESSEE
vs.    
DAVID SCOTT MOSS

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

WILLIAM DAN DOUGLAS, JR.        JOHN KNOX WALKUP 
109 North Main                  Attorney General & Reporter
Ripley, TN  38063   
                                CLINTON J. MORGAN 
                                Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                ELIZABETH T. RICE 
                                District Attorney General

                                MARK DAVIDSON
                                Assistant District Attorney General
                                302 Market Street
                                P.O. Box 562
                                Somerville, TN  38068                          

Judge: WOODALL

First Paragraph:

The Defendant, David Scott Moss, appeals as of right from his
conviction of driving under the influence of an intoxicant (DUI)
following a non jury trial in the Circuit Court of Lauderdale County. 
In his sole issue on appeal, the Defendant argues that the evidence
was insufficient to sustain the conviction.  We affirm the judgment of
the trial court.

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

STATE OF TENNESSEE,
vs.
MICHAEL T. WARE

Court:TCCA

Attorneys:
FOR THE APPELLANT:              FOR THE APPELLEE:

A. C. WHARTON                   JOHN KNOX WALKUP
Public Defender                 Attorney General and Reporter

WALKER GWINN                    GEORGIA BLYTHE FELNER
Assistant Public Defender       Assistant Attorney General
201 Poplar, Suite -01           425 5th Avenue North
Memphis, TN 38103               Nashville, TN 37243

                                JOHN W. PIEROTTI
                                District Attorney General

                                AMY WEIRICH
                                Assistant District Attorney General
                                Criminal Justice Complex, Suite 301
                                201 Poplar Street
                                Memphis, TN 38103                          

Judge: WELLES

First Paragraph:

The Defendant, Michael T. Ware, was convicted by a Shelby County jury
of one count of felony murder.  He was sentenced to life imprisonment.
 He appeals his conviction raising one issue: That the evidence was
legally insufficient to support the verdict of guilt.  As subparts to
this issue, he asserts that the conviction was based on accomplice
testimony without sufficient corroboration and that the testimony of
the accomplice was essentially "bought" by the prosecution and
violative of his due process rights.  We affirm the judgment of the
trial court.

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

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