TBALink Opinion-Flash

January 5, 1998 -- Volume #4 -- Number #002

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
00-New Opinons From TCCA

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George Dean
TBALink Chief Editor


JULIE ANN BARNETT
VS.
STANLEY EARL BARNETT

Court:TCA

Attorneys:

W. H. STEPHENSON, II, Nashville, Attorney for plaintiff.

LOUISE R. FONTECCHIO, Nashville, Attorney for defendant.
                          
Judge:TOMLIN

First Paragraph:

Julie Ann Barnett ("mother") filed a petition in the Circuit Court of
Davidson County against Stanley Barnett ("father") seeking to have
custody of the parties' three minor children vested in her rather than
father.  Father filed a counter complaint alleging that mother was in
contempt of court for violating earlier court orders regarding
visitation and alienation of affections of the children.  Following a
hearing, the trial court denied the petition, finding that mother had
failed to prove a material change of circumstances to justify change
of custody.  The trial court also denied father's petition to have
mother cited for contempt of court.  On appeal, mother raises the
single issue of the trial court's denial of her petition to change
custody.  Father contends that the trial court was in error in not
finding mother in contempt and in addition seeks to have mother's
appeal declared to be frivolous.

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

LINDA BRAGG
VS.
METROPOLITAN GOVERNMENT OF  
NASHVILLE AND DAVIDSON      
COUNTY

Court:TCA

Attorneys:

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

James L. Murphy, III                Nancy K. Corley   
William Michael Safley              V. Michael Fox   
Nashville, Tennessee                Kelley A. Sauls   
                                    Nashville, Tennessee
                          
Judge:LILLARD

First Paragraph:

This is a slip and fall case under the Governmental Tort Liability
Act.  The heel of the  plaintiff's shoe caught in a hole as she
descended the stairs of a government building, resulting in injuries. 
The trial court found the defendant to be 100% negligent and awarded
damages to the plaintiff. The defendant appeals, contending that the
hole in the steps was not a dangerous and defective condition or, in
the alternative, that it was open and obvious.  We affirm.

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

JOSEPHINE BROWN, WHITFIELD  
BROWN, and EARLINE CULP
vs.
DR. KENNETH KUDSK and       
UT MEDICAL GROUP, INC.

Court:TCA

Attorneys:

CURTIS D. JOHNSON, JR.
JOHNSON & SETTLE
Memphis, Tennessee
Attorney for Appellant

J. KIMBROUGH JOHNSON
THOMASON, HENDRIX, HARVEY,
JOHNSON & MITCHELL
Memphis, Tennessee
Attorney for Appellee
                          
Judge:HIGHERS

First Paragraph:

This is an appeal from a summary judgment in a medical malpractice
case.  The trial court entered an order of summary judgment on behalf
of Defendant, Dr. Kenneth Kudsk ("Dr. Kudsk").  Plaintiffs, Josephine
Brown ( "Brown"), Whitfield Brown, and Earline Culp,  appeal the
judgment citing, inter alia, errors in the trial court's granting of
summary judgment when the Plaintiffs' expert affidavits and deposition
testimony were proper responsive proof to the Defendant's motion for
summary judgment.  For reasons stated herein, we affirm the trial
court's judgment.

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

JERRY ALLEN ESTIS and SHEILA     
MARIE ESTIS
VS.
WILLIAM CARROLL KELLEY       
and PHILLIP WAYNE KELLEY

Court:TCA

Attorneys:

Barbara J. Walker, #007093
P.O. Box 1574
Columbia, TN 38402-1574         
ATTORNEY FOR PLAINTIFFS/APPELLEES

William Carroll Kelley
TDOC #97104
SCCF/DB-230
P.O. Box 279
Clifton, TN 38425-0279
 PRO SE FOR DEFENDANTS/APPELLANTS
                          
Judge:TODD

First Paragraph:

On June 22, 1983, this suit was filed on behalf of Jerry Allen Estis
and Shelia Marie Estis, minor children, for the wrongful death of
their parents at the hands of William Carroll Kelley and Phillip Wayne
Kelley on June 23, 1982.

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

BRENDA FARMER
vs.
DEPT. OF CHILDREN SERVICES

THERESA FARMER/ESTES
vs.
DEPT. OF CHILDREN SERVICES

Court:TCA

Attorneys:

Stacy L. Miller, 
1808 West End Avenue, Suite 701
Nashville, TN. 37203
ATTORNEY FOR PLAINTIFF/APPELLANT (Theresa Carol Farmer-Estes)

Kathleen G. Morris,
P.O. Box 128091
Nashville, TN. 37212
ATTORNEY FOR PLAINTIFF/APPELLANT (Brenda Farmer)

John Knox Walkup
Attorney General and Reporter

Douglas Earl Dimond
Assistant Attorney General
General Civil Division
2nd Floor Cordell Hull Bldg.
425 Fifth Avenue, North,
Nashville, TN. 37243-0499
ATTORNEY FOR DEFENDANT/APPELLEE
                          
Judge:CAIN

First Paragraph:

These consolidated cases represent two separate family units running
an essentially parallel course in the Juvenile Court of Davidson
County.

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

JERRY HAMMOCK and wife      
RUBY HAMMOCK, et al.
vs.
SUMNER COUNTY, TENNESSEE

Court:TCA

Judge:TODD

First Paragraph:

Sumner County has filed a timely petition for rehearing in accordance
with Tenn. R. App. P. 39 requesting this court to reconsider its
December 5, 1997 opinion because it misapprehends the application of
Tenn. R. Civ. P. 26.02(3) and 26.02(4).  Citing Taylor v.
Anderson-Tully Co., 151 F.R.D. 295, 296 (W.D. Tenn. 1993), the County
asserts that the routine disclosure of an expert's report prior to
deposing the expert is "not a practice to be encouraged."  We
respectfully disagree.  Accordingly, the petition for rehearing is
denied.

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

CHARLES MULLE, JR.
vs.
KATHY REESE MULLE YOUNT

Court:TCA

Attorneys:

J. RUSSELL HELDMAN
320 Main Street, Suite 101
Franklin, Tennessee 37064

ROBERT L. JACKSON
One Washington Square
214 Second Avenue, North, Suite 103
Nashville, Tennessee 37201
    Attorneys for Petitioner/Appellee

PEGGY D. MATHES
EDWARD L. HILAND
214 Second Avenue North, Suite 105
Nashville, Tennessee 37201
    Attorneys for Respondent/Appellant
                          
Judge:CANTRELL

First Paragraph:

In this custody and visitation case, the trial court modified the
father's visitation schedule, and found the mother to be in contempt
of its prior orders.  The mother argues on appeal that since Tennessee
has not been the home state of the minor child since 1988, the
Tennessee courts no longer have jurisdiction over matters involving
him.  We disagree, and we affirm the trial court.

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

FREDRICKA A. STEINER
vs.
THE PARMAN CORPORATION

Court:TCA

Judge:TODD

First Paragraph:

The plaintiff-appellant has filed a respectful petition to rehear
which has been duly considered and is hereby respectfully denied.

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

FREDDIE STEWART
vs.
HCA HEALTH SERVICES OF      
TENNESSEE, INC. d/b/a           
CENTENNIAL MEDICAL CENTER

Court:TCA

Attorneys:

For Plaintiff/Appellant:            For Defendant/Appellee:

John K. Maddin, Jr.                 C.J. Gideon, Jr.
MADDIN, MILLER & McCUNE             William S. Walton
Nashville, Tennessee                GIDEON & WISEMAN
                                    Nashville, Tennessee
                          
Judge:KOCH

First Paragraph:

This case involves the theft of a motorcycle from a hospital parking
garage.  The visitor whose motorcycle was stolen filed a bailment
action against the hospital in the Circuit Court for Davidson County. 
The hospital moved for summary judgment on the ground that no bailment
was created. The trial court agreed and summarily dismissed the case. 
The visitor asserts on this appeal that the trial court should not
have granted the summary judgment because the record contains material
factual disputes concerning the existence of a bailment.  We find that
the material facts are not in dispute and that a bailment was not
created as a matter of law.  Accordingly, we affirm the summary
judgment.

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

JOE LARRY TURNBO
vs.
BRENDA JANE (THOMPSON) TURNBO

Court:TCA

Attorneys:

MICHAEL W. BINKLEY
150 Second Avenue, N.
Suite 300
Nashville, Tennessee  37219
ATTORNEY ON APPEAL FOR PLAINTIFF/APPELLANT

DENNIS PLUNK
404 W. Main Street
Savannah, Tennessee  38372
ATTORNEY AT TRIAL FOR PLAINTIFF/APPELLANT

CLAUDIA S. JACK
Jack & Jack, Attorneys
22 Public Square
Columbia, Tennessee  38402-0827
ATTORNEYS FOR DEFENDANT/APPELLEE

THOMAS W. HARDIN
102 W. 7th Street
Columbia, Tennessee 38402
ATTORNEYS FOR DEFENDANT/APPELLEE
                          
Judge:TODD

First Paragraph:

The husband appealed from a judgment granting to the wife an absolute
divorce, alimony in futuro, and division of marital property.  The
husband also complains of the refusal of the Trial Judge to recuse
himself because of alleged improprieties.

URL:http://www.tba.org/tba_files/TCA/turnbo2_op.WP6
Opinion-Flash

JOE LARRY TURNBO
vs.
BRENDA JANE (THOMPSON) TURNBO       

Court:TCA

Judge:TODD

First Paragraph:

The opinion filed by this Court on December 11, 1996, is withdrawn,
and a revised opinion filed simultaneously with this order is
substituted therefor.

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

DAWN LOUISE WADDELL             
WILLIAMS

RICHARD DANCE and           
FRED C. DANCE
vs.
THOMAS WICKLIFF COMER,          
Individually and as Trustee, et al.

Court:TCA

Attorneys:

For the Plaintiff/Appellee:         For the Appellants,
                                    Richard Dance and Fred C. Dance:

John R. Phillips, Jr.               Richard Dance            
Timothy R. Rector                   Fred C. Dance
Gallatin, Tennessee                 Attorneys Pro Se
                                    Nashville, Tennessee
                          
Judge:LILLARD

First Paragraph:

This case involves the interpretation of a contingency fee employment
agreement for two attorneys.  The attorneys were employed by the
plaintiff to file suit to challenge the validity of a trust and deed. 
After the plaintiff requested that the attorneys withdraw from
representing her, the case was settled.  The attorneys thereafter
filed a motion for attorney's fees under the contingency fee contract.
 The trial court denied the attorneys' motion for attorney's fees.  We
affirm.

URL:http://www.tba.org/tba_files/TCA/williaco_opn.WP6

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