TBALink Opinion-Flash

November 21, 1997 -- Volume #3 -- Number #122

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
16-New Opinons From TCA
04-New Opinons From TCCA

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TBALink Chief Editor


DOUGLAS AMES and wife,          
SIDNEY STROUD AMES,         
vs.
PHILLIPS BUILDERS, INC.

Court:TCA

Attorneys:

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

D. Russell Thomas                       Todd E. Panther    
Sonya W. Henderson                      Nashville, Tennessee
Murfreesboro, Tennessee
                          
Judge: LILLARD

First Paragraph:

This is a negligence case, involving the construction and repair of a
residential building.  The plaintiff owner of a condominium alleged
that the builder's negligence resulted in the presence of a harmful
microorganism in the building.  The trial court granted summary
judgment in favor of the builder.  We affirm.

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

WALTER J. BIDDLE, SR.
vs.
NORFOLK SOUTHERN RAILWAY        
COMPANY

Court:TCA

Attorneys:

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

Patrick S. O'Brien                  Everett B. Gibson         
C. Marshall Friedman                Ralph T. Gibson                
St. Louis, Missouri                 Memphis, Tennessee            

Eugene A. Laurenzi
Memphis, Tennessee
                                            
Judge: LILLARD

First Paragraph:

This case involves a claim of negligence under the Federal Employers'
Liability Act.  The plaintiff railroad employee suffered foot and
ankle injuries from walking on oversized ballast over an extended
period of time.  The jury found the railroad fifty percent negligent
and the employee fifty percent negligent.  In response to a post-trial
motion, the trial court struck the jury's finding that the employee
was negligent.  We affirm.

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

EDWIN HAROLD BURNETTand wife,       
CAROL HOFFMAN BURNETT,      
vs.
CHARLES HAMBY

Court:TCA

Attorneys:

For the Plaintiffs/Appellees:           For the Defendant/Appellant:

Darrell L. Scarlett                     Larry K. Tolbert         
Murfreesboro, Tennessee                 Murfreesboro, Tennessee         

                                        C. Tracey Parks
                                        Gallatin, Tennessee
                          
Judge: LILLARD

First Paragraph:

This case involves a restrictive covenant in a subdivision.  The
Appellant sought to construct a "driveway" across a residential
subdivision lot to provide ingress and egress to property located
outside the subdivision.  The trial court found that the proposed
driveway would violate a restrictive covenant forbidding the use of
any subdivision lot for any purpose not residential, and permanently
enjoined construction of the driveway.  We affirm.

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

JEANETTE FRAZIER
vs.
STONEY KYLE GEORGE and, 
SHERMAN A. GEORGE

Court:TCA

Attorneys:

Doyle E. Richardson, ROGERS, RICHARDSON & DUNCAN, Manchester,
Tennessee
Attorney for Plaintiff/Appellant.

Barbara J. Perutelli, SCHULMAN, LeROY & BENNETT, P.C., Nashville,
Tennessee
Attorney for Defendants/Appellees.
                          
Judge:FARMER

First Paragraph:

The plaintiff, Jeanette Frazier, sued the defendants, Stoney Kyle
George and Sherman A. George, for injuries and damages sustained as a
result of an automobile accident on November 16, 1994.  The complaint
alleges that the plaintiff was traveling north on U.S. Hwy. 41 when
defendant Stoney Kyle George crossed the southbound lane of the
highway and struck the vehicle driven by the plaintiff.  It is alleged
in the complaint and admitted that the George vehicle was owned by
Sherman A. George, driven by his son Stoney and was a family purpose
vehicle.

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

ALEXANDER FRIEDMANN
vs.
CHARLES BASS, et al.

Court:TCA

Attorneys:

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

Alexander Friedmann, Pro Se         John Knox Walkup
                                    Attorney General and Reporter

                                    Michael E. Moore
                                    Solicitor General

                                    Sohnia W. Hong
                                    Assistant Attorney General
                          
Judge:KOCH

First Paragraph:

This appeal involves a prison disciplinary proceeding.  After being
found guilty of engaging in an unauthorized monetary transaction, the
prisoner filed a petition for common-law writ of certiorari in the
Chancery Court for Davidson County alleging that the disciplinary
proceeding violated his due process rights.  The trial court granted
the prison officials' motion for summary judgment and dismissed the
petition on the ground that the petitioner had failed to make out a
due process claim as a matter of law.  We affirm the summary judgment
in accordance with Tenn. Ct. App. R. 10(b).

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

LARRY LeMASTERS
vs.
LINDA LeMASTERS ROSS

Court:TCA

Attorneys: 

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

Daniel C. Masten                    Charles Galbreath
Richard D. Taylor, Jr.              Nashville, Tennessee
V.A. (Bo) Melton, Jr.
Nashville, Tennessee
                         
Judge:KOCH

First Paragraph:

This appeal concerns the enforceability of an Indiana judgment for
unpaid child support.  The judgment creditor filed an action to
register and enforce the judgment in the Circuit Court for Davidson
County.  The judgment debtor contested the enforceability of the debt
on the ground that it had been discharged in bankruptcy.  Following a
bench trial, the trial court held that the judgment had not been
discharged,  and the judgment debtor appealed.  We affirm the trial
court's conclusion that the debt for unpaid child support was not
dischargeable in bankruptcy.

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

ANDREW D. MITCHELL and wife,    
VIRGINIA K. MITCHELL
vs.
MELVIN C. RENO and wife, ALTA M.    
RENO, and EDDIE ALFORD

Court:TCA

Attorneys:

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

John B. Melton, III                 Frank Buck               
Murfreesboro, Tennessee             Smithville, Tennessee           
                         
Judge: LILLARD

First Paragraph:

This is a boundary line case.  The litigants are adjacent landowners. 
Appellants initiated proceedings against Appellees for the wrongful
cutting of timber.  Appellees then filed a counter claim asking the
trial court to establish the boundary between the adjacent tracts of
land.  The trial court established the boundary line in favor of
Appellees but found that Appellants were entitled to damages for
timber cut from their property.  We affirm.

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

IN RE: JEFFREY THOMAS MORGAN

Court:TCA

Attorneys:

For the Appellee, United Methodist      For the Appellees, 
Adoption Services:                      Adopting Couple:            

Diana L. Schmied                        Kevin W. Weaver
Bartlett, Tennessee                     Cordova, Tennessee

For the Appellant, The Tohono           For Jeffrey Thomas Morgan
                                        By His
O'odham Nation:                         Court-Appointed Attorney
                                        Ad Litem:

Mark E. Curry                           Kay F. Turner 
Sells, Arizona                          Attorney Ad Litem
                                        Memphis, Tennessee
Russell C. Winston
Memphis, Tennessee
                          
Judge: LILLARD

First Paragraph:

This is an adoption case in which the Tohono O'odham Indian Nation
seeks to intervene pursuant to the federal Indian Child Welfare Act. 
The trial court denied the motion to intervene, finding the Act
inapplicable under the "existing Indian family doctrine."  In a case
of first impression in Tennessee, we affirm the decision of the trial
court.

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

NORMAN DEAN NILSEN
vs.
JENNIFER LEA BLACK

Court:TCA

Attorneys:

NORMAN DEAN NILSEN
318 6th Avenue S. #117
Seattle, Washington 98104
    Pro Se/Plaintiff/Appellee

GORDON W. RAHN
TROY L. BROOKS
127 South Third Street
Clarksville, Tennessee 37040
    Attorneys for Defendant/Appellant
                          
Judge:CANTRELL

First Paragraph:

The divorced father of a fourteen year old girl filed a Petition for
Writ of Habeas Corpus in the Chancery Court of Montgomery County, to
compel the mother to return the girl to his physical custody in the
state of Washington.  The trial court found that custody jurisdiction
remained in the state of Washington, and that a prior order of the
Washington court had transferred custody to the petitioner.  The court
accordingly granted the writ.  We affirm.

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

CHRISTOPHER C. RINGLING
vs.
TENNESSEE BOARD OF PAROLES

Court:TCA

Attorneys:

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

Christopher C. Ringling, Pro Se         John Knox Walkup
                                        Attorney General and Reporter

                                        John R. Miles
                                        Counsel for the State                          
Judge:KOCH

First Paragraph:

This appeal involves a prisoner's efforts to be released on parole in
accordance with the terms of his plea bargain agreement.  After the
Tennessee Board of Paroles declined to release him on parole, the
prisoner filed a petition for common-law writ of certiorari in the
Circuit Court for Davidson County alleging that the Board had acted
arbitrarily and illegally by failing to honor the terms of his plea
agreement.  The trial court, treating the Board's motion to dismiss as
one for summary judgment, dismissed the petition, and the prisoner has
appealed.  While the trial court should not have converted the motion,
we have determined that the prisoner's petition should be dismissed
for failure to state a claim upon which relief can be granted.

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

IN RE:                      
                        
ESTATE OF ALLA MAE LOCKE    
SIMMONS, DECEASED           
vs.
CHRISTINE LOCKE FOSTER, ET AL.

Court:TCA

Attorneys:

For the Defendants/Appellants:      For the Petitioner/Appellee:

Allen Shoffner                      John C. Shofner          
Shelbyville, Tennessee              Shelbyville, Tennessee
                         
Judge: LILLARD

First Paragraph:

This case involves the petition of the administrator of an estate to
probate an allegedly stolen will.  The trial court found that the will
had been stolen and admitted the will to probate.  We affirm.

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

WILLIAM TOWNE YOUNG
vs.
MARTHA McCOOL YOUNG,

Court:TCA

Judge:HIGHERS

First Paragraph:

The appellant has filed a petition to rehear, alleging that the Court
overlooked her constitutional argument relative to the Tennessee Child
Support Guidelines.

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

ALEXANDER ZANETIS, and wife, THELMA 
ZANETIS
vs.
DAVID MCMACKIN and BOATMEN'S        
NATIONAL MORTGAGE COMPANY, INC.

Court:TCA

Attorneys:

CHARLES GALBREATH, #2779
211 Union Street, Suite 901
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFFS/APPELLANTS

WINSTON S. EVANS, #6281
EVANS, JONES & REYNOLDS
1810 First Union Tower
150 Fourth Avenue, North
Nashville, Tennessee 37219-2424
ATTORNEY FOR DEFENDANTS/APPELLEES
                          
Judge: TODD

First Paragraph:

The captioned plaintiffs have appealed from a summary judgment
dismissing their suit against the captioned defendants.

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

STATE OF TENNESSEE
vs.
DANNY HORN

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

David Neal Brady                Charles W. Burson
District Public Defender        Attorney General of Tennessee
     and                        and             
H. Marshall Judd                Clinton J. Morgan
Assistant Public Defender       Asst Attorney General of Tennessee     
215 Reagan Street       
                                450 James Robertson Parkway     
Cookeville, TN 38501            Nashville, TN 37243-0493

                                William Edward Gibson
                                District Attorney General
                                and
                                Ben Fann
                                Asst District Attorney General
                                145 South Jefferson Avenue
                                Cookeville, TN 38501
                          
Judge:Tipton

First Paragraph:

The defendant, Danny Horn, appeals as of right from the sentence to
confinement imposed by the Putnam County Criminal Court for his
conviction of attempted aggravated sexual battery, a Class C felony. 
As a Range I, standard offender, the defendant received a sentence of
six years in the custody of the Department of Correction.  On appeal,
the defendant contends that the trial court erred by denying probation
or some other form of sentencing alternative to confinement.       We
affirm the trial court.

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

STATE OF TENNESSEE
vs.
DAVID PALMER

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

KARL DEAN                           JOHN KNOX WALKUP
Public Defender                     Attorney General and Reporter

JEFFREY A. DeVASHER (appeal only)   KAREN M. YACUZZO
Senior Assistant Public Defender    Assistant Attorney General
1202 Stahlman Building              450 James Robertson Parkway
Nashville, TN 37201                 Nashville, TN 37243-0493

WENDY S. TUCKER                     VICTOR S. JOHNSON, III
SHEILA JONES                        District Attorney General
Assistant Public Defenders
1202 Stahlman Building              WILLIAM R. REED
Nashville, TN 37201                 Asst District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue, N.
                                    Nashville, TN 37201-1649

                          
Judge: RILEY

First Paragraph:

The defendant, David Palmer, was convicted by a Davidson County jury
of aggravated child abuse.  He was sentenced as a Class A felon to
seventeen (17) years as a Standard Offender in the Tennessee
Department of Correction.

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

STATE OF TENNESSEE
vs.
TIMOTHY MARK REDD

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

A. JACKSON DEARING, III         JOHN KNOX WALKUP 
117 South Main Street           Attorney General & Reporter
Suite 101
Shelbyville, TN  37160          PETER M. COUGHLAN
                                Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                WILLIAM MICHAEL McCOWN
                                District Attorney General

                                ROBERT G. CRIGLER 
                                Assistant District Attorney General
                                One Public Square, Suite 300 
                                Shelbyville, TN  37160 
                          
Judge:WOODALL

First Paragraph:

The Defendant, Timothy Mark Redd, appeals as of right following a jury
trial in the Circuit Court of Bedford County.  He was convicted of
attempted burglary, assault, resisting arrest, and possession of
burglary tools.  He argues on appeal (1) that the evidence was
insufficient to support the conviction for assault, (2) that the trial
court erred by not merging the conviction for possession of burglary
tools with the conviction for attempted burglary, (3) that the trial
court erred by not merging the conviction for resisting arrest with
the conviction for assault, (4) that the trial court erred by ordering
consecutive sentencing, and (5) that the trial court erred by ordering
a sentence of split confinement for the conviction of attempted
burglary.  We affirm the convictions and sentences, but modify the
manner of service

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

STATE OF TENNESSEE
vs.    
DAVID C. VOLZ

Court:TCCA

Attorneys:

FOR THE APPELLEE:               FOR THE APPELLANT:

LEE OFMAN                       JOHN KNOX WALKUP 
317 Main Street, Suite 203      Attorney General & Reporter
Franklin, TN  37064 
                                KAREN M. YACUZZO 
                                Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                JOSEPH D. BAUGH, JR.
                                District Attorney General

                                DEREK K. SMITH 
                                Asst District Attorney General
                                Williamson Cty Courthouse, Ste. G-6
                                P.O. Box 937 
                                Franklin, TN  37065-0937
                          
Judge:WOODALL

First Paragraph:

The State appeals as of right from the trial court's order granting
the Defendant's motion to suppress evidence.  In this felony
possession of marijuana case, the action of the trial court had the
substantive effect of dismissing the indictment against Defendant. 
The issue on appeal is whether or not the trial court erred by
granting the Defendant's motion to suppress the evidence.  We agree
with the State and reverse the trial court's order granting the motion
to suppress and remand this case for further proceedings.

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

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