TBALink Opinion-Flash

January 7, 1998 -- Volume #4 -- Number #004

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
06-New Opinons From TSC-Workers Comp Panel
04-New Opinons From TCA
06-New Opinons From TCCA

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TBALink Chief Editor


SANDRA KAY CORNELISON
vs.
NORTHWEST TENNESSEE ECONOMIC    
DEVELOPMENT COUNCIL

Court:TSC - Workers Comp Panel

Attorneys:

For the Appellant:                      For the Appellee:

Robert O. Binkley                       Jeffrey A. Garrety
Jeffery G. Foster                       Patrick N. Parker
RAINEY, KIZER, BUTLER, REVIERE,
 & BELL, P.L.C.                         LAW OFF. OF JEFFREY A. GARRETY
105 South Highland Avenue               65 Stonebridge Boulevard
P.O. Box 1147                           Jackson, Tennessee 38305
Jackson, Tennessee 38302-1147 
                          
Judge:CHILDERS

First Paragraph:

The plaintiff sustained an injury to her back during the course of
employment on March 1, 1994.  Based on her age, education, lack of
transferable job skills, the nature and extent of her injury, job
opportunities for similarly injured workers and all other relevant
vocational factors, the trial judge awarded her permanent partial
disability benefits of 50% to the body as a whole.

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

RICKY MCFARLAND
vs.
CHAMPION HOME BUILDERS

Court:TSC - Workers Comp Panel

Attorneys:

FOR APPELLANT:                      FOR APPELLEE:
P. Allen Phillips                   Ricky L. Boren
Jackson, Tennessee                  Jackson, Tennessee
                          
Judge:Ash

First Paragraph:

This worker's compensation appeal was referred to the Special Workers'
Compensation Appeals Panel of the Supreme Court in accordance with
Tenn. Code Ann. S 50-6-225(e)(3) (1996 Supp.) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law.  In this appeal, the employer, Champion Home Builders, contends
that: (1) the trial court erred in finding that the plaintiff had
sustained a compensable injury; and (2) the trial court erred in
assessing a 50 % permanent partial disability to the body as a whole. 
The panel finds that the judgment of the trial court should be
affirmed.

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

KATHY REYNOLDS
vs.
LIFE CARE CENTERS OF AMERICA,       
INC., d/b/a LIFE CARE CENTERS OF        
BRUCETON AND HOLLOW ROCK,                   
                            
BIRMINGHAM FIRE INSURANCE       
COMPANY OF PENNSYLVANIA c/o     
CRAWFORD AND COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

For the Appellant:                          For the Appellee:

Lori J. Keen                                Charles L. Hicks    
Carl Wyatt                                  ATTORNEY AT LAW 
GLASSMAN, JETER, EDWARDS & WADE, P.C.       9 North Court Square
26 North Second Street                      P.O. Box 957
Memphis, Tennessee 38103                    Camden, Tennessee 383320
                          
Judge:CHILDERS

First Paragraph:

The trial court awarded the plaintiff 50% permanent partial disability
to the right arm and 25% to the left arm.  The trial court also
awarded temporary total disability for the period between 6/30/95 and
1/16/96 (22 weeks) at the $152.24 compensation rate totaling $5,023.92
, medicals and mileage, future medical on arms only, attorney's fees
in lump sum and discretionary costs.

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

HERCHEL SEAGRAVES
vs.
PLAZA MACHINE AND TOOL

Court:TSC - Workers Comp Panel

Attorneys:

FOR APPELLANT:                      FOR APPELLEE:
S. Newton Anderson                  Clayton Mayo
Memphis, Tennessee                  Jackson, Tennessee
                          
Judge:Ash

First Paragraph:

This worker's compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S  50-6 225(e)(3) (1996 Supp.) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law.  In this appeal, the employer Plaza Machine and Tool, contends: 
(1) that the evidence preponderates against the trial court's finding
that the plaintiff suffered a permanent partial disability from his
work related injury; (2) that the award of permanent partial
disability benefits based on 47 % to the body as a whole is excessive;
and (3) that the trial court erred by not permitting Plaza Machine and
Tool to introduce into evidence the testimony of its private
investigator, his written report, and his video tape of Mr. Seagraves.
 The employee, in his cross appeal, contends that the trial court
should have found that Mr. Seagraves suffered 100% disability to the
body as a whole.  The panel finds that the judgment of the trial court
should be affirmed.

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

CRAIG WARRINGTON
vs.
EMERSON ELECTRIC COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

For the Appellant:                  For the Appellee:   

Harold R. Gunn                      P. Allen Phillips
Attorney at Law                     WALDROP AND HALL P.A.
P.O. Box 444                        106 South Liberty Street
Humboldt, Tennessee 38343           P.O. Box 726
                                    Jackson, Tennessee 38301
                          
Judge:CHILDERS

First Paragraph:

The trial court granted the defendant's "Motion to Dismiss" finding
that the plaintiff had failed to carry his burden of proof of
causation between the alleged work injury and the permanent
impairment.  We find that the evidence preponderates in favor of the
trial court's decision and we affirm.

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

JEANETTE WILSON
vs.
TECUMSEH PRODUCTS           
COMPANY         

Court:TSC - Workers Comp Panel

Attorneys: 

For Plaintiff:                  For Defendant:

Gayden Drew, IV                 David F. Hessing
Drew & Martindale, P.C.         105 E. Wood Street
470 N. Parkway, Suite C         Paris, TN 38242
Jackson, TN 3830                
                         
Judge:TOMLIN

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with T.C.A. S 50-6-225(e)(3) for hearing and reporting of findings of
fact and conclusions of law.  Tecumseh Products Company ("defendant")
has raised the following issues by this appeal: Did the trial court
err (1) in finding that plaintiff's vocational disability arose out of
and in the course of her employment, (2) in awarding plaintiff
temporary total disability and ordering defendant to pay certain
medical expenses, (3) in finding that plaintiff sustained a forty
percent permanent partial disability to her right arm and thirty
percent permanent partial disability to her left arm, and (4) in
charging certain discretionary costs incurred by plaintiff to
defendant.  We find no error and affirm.

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

SUZANNE MONIQUE SWILLEY ELY 
vs.
KENNETH RAY ELY

Court:TCA

Attorneys:

DAIL R. CANTRELL, WITH CANTRELL, PRATT & VARSALONA, OF CLINTON, 
TENNESSEE, FOR APPELLANT 

WM. STANTON MASSA, III, OF KNOXVILLE, TENNESSEE, FOR APPELLEE
                          
Judge:Sanders

First Paragraph:

The pivotal issue on this appeal is whether or not the trial court
erred in its calculation of the gross income of the obligor for
determining his child support obligation.

URL:http://www.tba.org/tba_files/TCA/127ely_opn.WP6
Opinion-Flash

KOHN ASHMORE, b/n/f ANGELA      
ASHMORE and RODNEY ASHMORE his  
natural parents and natural     
guardian and ANGELA ASHMORE     
and RODNEY ASHMORE,             
individually
vs.
HAMILTON COUNTY, TENNESSEE, a   
political subdivision of the   
State of Tennessee

Court:TCA

Attorneys:

JOHN R. MELDORF, III, Hixon, for Appellants.

DAVID W. NORTON, Chattanooga, for Appellee.
                          
Judge:McMurray

First Paragraph:

The plaintiffs instituted this action against Hamilton County
(defendant) charging that the defendant was negligent in maintaining
Levi Road in that the county allowed shrubbery to grow along the
right-of-way of Levi Road which impaired the vision of persons
entering upon the roadway from adjacent properties. No roadway
intersection was involved in the accident. The minor plaintiff, Kohn
Ashmore, entered upon Levi Road from the lawn of property owned by a
Mr. Sands.  After a bench  trial the trial court entered judgment in
favor of the defendant.  It is from this judgment that the plaintiffs'
appeal.  We affirm the judgment of the trial court.

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

GERRY SUE HASEK
vs.
DONNA KEENE HOLT and GILREATH   
AND ASSOCIATES

Court:TCA

Attorneys: 

DAVID W. BLANKENSHIP, Kingsport, for Appellant.

R. FRANKLIN NORTON, GEOFFREY D. KRESSIN, and W. MITCHELL CRAMER,
Norton & Luhn, P.C., for Appellees.
                         
Judge:McMurray

First Paragraph:

This is a legal malpractice action.  The Plaintiff alleges that she
employed the defendants to represent her in a medical malpractice
claim against Baptist Hospital of East Tennessee, Dr. Robert Hall or
the proper party to be sued.  Suit was brought against Baptist
Hospital of East Tennessee and was, after mediation, eventually
settled.  Dr. Hall was not sued.  The failure to bring an action
against Dr. Hall is the basis of this action.

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

WILLIAM T. RAWLS
vs.
N.V. HODGE, NORFOLK SOUTHERN      
RAILWAY COMPANY, DYCHO        
COMPANY, INC., AND JAMES        
MOYER MASSEY

Court:TCA

Attorneys:

ROBERT E. PRYOR, Pryor, Flynn, Priest & Harber, Knoxville, for
Appellant.

JOHN W. BAKER, JR., Baker, McReynolds, Byrne, O'Kane, Shea & Townsend,
Knoxville, for Appellees N.V. Hodge and Norfolk Southern Railway
Company.

HOWARD H. VOGEL & ANDREW CRAIG TROUTMAN, O'Neil, Parker & Williamson,
Knoxville, for Appellee Dycho Company, Inc.
                          
Judge:McMurray

First Paragraph:

William T. Rawls (plaintiff) brought this action to recover damages
resulting from a collision between a truck in which he was a passenger
and a train owned by Norfolk Southern Railway Company.  The truck was
being driven by the defendant, James Massey.  The train engineer was
the defendant, N. V. Hodge.  Rawls alleged that Norfolk Southern's
locomotive was at the time of the collision being operated in a
negligent manner under the circumstances existing at the crossing
where the accident took place.  He alleged that Hodge failed to give
warning by blowing the train's whistle or horn, and that the crossing
was not sufficiently marked by adequate warning devices.  Rawls also
sued Dycho Company, the owner of the land adjacent to the railway,
alleging that a fence which Dycho had placed on its land, together
with various structures and objects inside the fence, constituted a
dangerous obstruction which blocked the view of the oncoming train.

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

FRANK E. ADAMS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

WILLIAM C. ROBERTS, JR.         JOHN KNOX WALKUP
Suite 1502, Parkway Towers      Attorney General and Reporter
Nashville, TN 37219
                                JANIS L. TURNER
                                Assistant Attorney General
                                425 5th Avenue North
                                Nashville, TN 37243

                                VICTOR S. JOHNSON
                                District Attorney General

                                KATRIN MILLER
                                Assistant District Attorney General
                                Washington Square, Suite 500
                                222 2nd Avenue North
                                Nashville, TN 37201-1649
                        
Judge:WELLES

First Paragraph:

The Petitioner appeals the trial court's denial of his petition for
post conviction relief.  He was convicted by a jury on February 14,
1991, of felony murder and two counts of aggravated robbery.  He was
sentenced to life imprisonment for the count of felony murder and ten
(10) years for each count of aggravated robbery, all to be served
consecutively for an effective sentence of life plus twenty (20)
years.  His motion for new trial was denied on March 15, 1991.  This
Court affirmed his convictions on October 29, 1992, and his
application for appeal to our supreme court was denied on June 28,
1993.  State v. Adams, 859 S.W.2d 359 (Tenn. Crim. App. 1992), perm.
to appeal denied (Tenn. 1993).  The Petitioner filed a pro se petition
for post-conviction relief on October 21, 1993.

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

STATE OF TENNESSEE
vs.
TRAVIS E. BIRCHFIELD

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

Cary C. Taylor                  John Knox Walkup
Attorney at Law                 Attorney General & Reporter
P.O. Box 148                    500 Charlotte Avenue
Kingsport, TN 37662             Nashville, TN 37243-0497

                                Clinton J. Morgan
                                Counsel for the State
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                H. Greeley Wells, Jr.
                                District Attorney General
                                P.O. Box 526
                                Blountville, TN 37617-0526

                                Joseph E. Perrin
                                Assistant District Attorney General
                                P.O. Box 526
                                Blountville, TN 37617-0526
                          
Judge:Jones

First Paragraph:

The appellant, Travis E. Birchfield (defendant), was convicted of
aggravated assault, a Class C felony, by a jury of his peers.  The
trial court found the defendant was a persistent offender and imposed
a Range III sentence consisting of confinement for eleven (11) years
in the Department of Correction.  In this court, the defendant
presents one issue for review.  He contends the trial court committed
error of prejudicial dimensions by finding he was a persistent
offender.  He argues there were only four felony convictions which
could be used to determine the range in this case.  In this case, five
Class E felonies were statutorily mandated as a prerequisite to
classifying an accused as a persistent offender.  After a thorough
review of the record, the briefs submitted by the parties, and the law
governing the issue presented for review, 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/brchfldt_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
ANTHONY CHARLES GODSEY

Court:TCCA

Attorneys:

For Appellant:                      For Appellee:

Robert Y. Oakes                     John Knox Walkup
Office of the Public Defender       Attorney General and Reporter
First Judicial District     
Main Courthouse                     Georgia Blythe Felner
Elizabethton, TN  37643             Counsel for the State 
                                    450 James Robertson Parkway
Gerald L. Gulley, Jr.               Nashville, TN  37243-0493
Attorney
P.O. Box 1708                       Kenneth C. Baldwin
Knoxville, TN  37901-1708           Asst District Attorney General
(on appeal only)                    900 East Elk Avenue
                                    Elizabethton, TN  37643 
                          
Judge:WADE

First Paragraph:

The defendant, Anthony Charles Godsey, was indicted by a Carter County
Grand Jury for aggravated sexual battery.  Pursuant to a plea
agreement, the defendant entered a guilty plea to sexual battery, a
Class E felony.  Tenn. Code Ann. S 39-13-505.  The trial court
approved a Range I, five-year sentence but denied the defendant's
application for probation.

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

STATE OF TENNESSEE
vs.
ROGERS L. MCKINLEY

Court:TCCA

Attorneys:

For the Appellant                   For the Appellee
                
Rogers L. McKinley, pro se          Charles W. Burson
T.D.O.C. No. 138372                 Attorney General & Reporter
Route 4, Box 600
Pikeville, TN. 37367                Peter M. Coughlan
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN. 37243-0493

                                    J. Michael Taylor
                                    District Attorney General

                                    James W. Pope, III
                                    Asst District Attorney General
                                    265 Third Avenue, Ste. 300
                                    Dayton, TN. 37321
                          
Judge:BARKER

First Paragraph:

The appellant, Rogers L. McKinley, appeals the Bledsoe County Criminal
Court's dismissal of his petition for a writ of habeas corpus.  In
1990, the appellant entered guilty pleas and was convicted of two
counts of rape and one count of aggravated burglary.  The trial court
sentenced the appellant as a Range II multiple offender to concurrent
sentences of fifteen (15) years for each rape and ten (10) years for
the aggravated burglary.  No direct appeal was taken from those
convictions and sentences.

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

STATE OF TENNESSEE
vs.
CARLA SMITH

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

Michael R. Jones                John Knox Walkup
District Public Defender        Attorney General & Reporter 

Collier W. Goodlett, Jr.        Daryl J. Brand
Assistant Public Defender       Assistant Attorney General
109 S. Second Street            Criminal Justice Division
Clarksville, TN 37040           450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                John W. Carney, Jr.
                                District Attorney General
    
                                Steven L. Garrett
                                Asst District Attorney General
                                204 Franklin Street, Suite 200
                                Clarksville, TN 37040                          
                                
Judge:SUMMERS

First Paragraph:

The appellant, Carla Smith, pled guilty to assault and driving on a
revoked license.  She received an effective sentence of eleven months
and twenty-nine days probation.  A probation violation warrant issued
alleging that the appellant failed to report, did not fulfill
educational requirements, and did not pay various fees and fines.  The
hearing court found the allegations and the warrant to be valid and
revoked the appellant's probation.  She appeals to this Court.  We
affirm the court's disposition.

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

STATE OF TENNESSEE
vs.
CHARLES DANA WOODRUFF, ALSO 
KNOW AS VICTOR WALKER

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

D. Clifton Barnes                   John Knox Walkup
Off. of the Dist. Public Defender   Attorney General & Reporter
1609 College Park Drive             500 Charlotte Avenue
Morristown, TN 37813-1618           Nashville, TN 37243-0497

Laura D. Perry                      Timothy F. Behan
Attorney at Law                     Assistant Attorney General
503 North Jackson Street            450 James Robertson Parkway
Morristown, TN 37814                Nashville, TN 37243-0493

                                    C. Berkley Bell
                                    District Attorney General
                                    113-J W. Church Street
                                    Greeneville, TN 37745

                                    John F. Dugger, Jr.
                                    Asst District Attorney General
                                    Hamblen County Justice Center
                                    510 Allison Street
                                    Morristown, TN 37814
                          

Judge:Jones

First Paragraph:

The appellant, Charles Dana Woodruff, also known as Victor Walker
(defendant), was convicted of theft in excess of $60,000, a Class B
felony, and theft in excess of $10,000, a Class C felony, by a jury of
his peers.  The trial court found that the defendant was a standard
offender and imposed the following Range I sentences: (a) a fine of
$25,000 and confinement for twelve (12) years in the Department of
Correction for theft in excess of $60,000, and (b) a fine of $10,000
and confinement for six (6) years in the Department of Correction for
theft in excess of $10,000.  The sentences are to be served
consecutively for an effective sentence of eighteen (18) years.  In
this court, the defendant  presents five issues for review.  He
contends (a) the evidence is insufficient, as a matter of law, to
support his conviction for theft in excess of $60,000; (b) the
evidence is insufficient, as a matter of law, to support his
conviction for theft in excess of $10,000; (c) he, an
African-American, was tried by an all white jury, thus denying him a
fair jury trial by his peers; (d) it  was improper for the prospective
jurors to hear a prospective juror say if he was found guilty, he
should receive the maximum sentence allowable by law; and (e) the
sentences imposed by the trial court are excessive.  After a thorough
review of the record, the briefs submitted by the parties, and the law
governing the issues presented for review, it is the opinion of this
court that the judgment of the trial court is affirmed pursuant to
Rule 20, Tennessee Court of Criminal Appeals.

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

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