TBALink Opinion-Flash

February 16, 1998 -- Volume #4 -- Number #030

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
01-New Opinons From TSC-Workers Comp Panel
11-New Opinons From TCA
03-New Opinons From TCCA

There are three ways to get the full opinion from the Web: (TBALink members only)

  • Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a plain text version of the opinion.

  • *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WP 6.0 document. version of the opinion.

  • Click the URL Link at end of each Opinion paragraph below. This option will allow you to download the original WP 6.0 document.

George Dean
TBALink Chief Editor


WILLIAM ALLEN FRAZIER
vs.
LANDAIR SERVICES, INC.,     
d/b/a LANDAIR TRANSPORT, INC.

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:              For the Appellee:

Howard R. Dunbar                Steven H. Trent, Esq.
Dunbar & Dunbar                 Baker, Donelson, Bearman & Caldwell
P.O. Box 1215                   207 Mockingbird Lane
Johnson City, TN 37605          P.O. Box 3038
                                Johnson City, TN 37602
                         
Judge:BYERS

First Paragraph:

The plaintiff alleged in his petition that he was injured while
unloading a trailer while in the employment of the defendant.  The
defendant filed a Motion for Summary Judgment supported by affidavits,
and the plaintiff answered the motion by filing affidavits also.  The
trial judge granted summary judgment to the defendant and dismissed
the plaintiff's petition.

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

DEBORAH L. CARSON,          
next of kin and parent of               
MALLORY D. LEDBETTER
vs.
AGRI-PRODUCTS SPECIAL MARKETS,   
INC. d/b/a SUNCOAST, and            
ARMOR-ALL PRODUCTS CORP.,       
and ORGAIN BUILDING SUPPLY, CO.

Court:TCA
                         
Judge:TODD

First Paragraph:

This appeal involves a wrongful death case filed by the parent of a
six year-old child.  The parent filed suit in the Circuit Court for
Montgomery County alleging that her daughter's death was caused by
exposure to a household cleaning product marketed and distributed by
Armor-All Corporation.  The complaint named as defendants Armor-All
Corporation, Agri-Products Special Markets, Inc., the company from
whom Armor-All had purchased the line of household cleaning products,
and Orgain Building Supply Company, the company from whom the parents
had purchased the product.  The complaint also alleged four causes of
action including negligence, strict liability, misrepresentation, and
breach of warranty.

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

BILLY and LOIS CULP
vs.
J. B. HINSON and ROY PEVAHOUSE  
d/b/a/ PEVAHOUSE BROTHERS

Court:TCA

Attorneys:

W. ANDREW YARBROUGH
P.O. Box 456
504 Highway 64 East
Waynesboro, Tennessee 38485
ATTORNEY FOR PLAINTIFFS/APPELLEES

J. DOUGLAS DICUS
P.O. Box 1119
210B So. Main Street
Waynesboro, Tennessee 38485
ATTORNEY FOR DEFENDANTS/APPELLANTS
                          
Judge:TODD

First Paragraph:

This is a suit by purchasers of a home against the builder-seller and
the septic system contractor for rescission or damages for failure of
the septic system of the home.  The Trial Judge rendered a non jury
judgment in favor of the plaintiffs and against all defendants for
$5,246; and defendants have appealed.

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

CARA ANNETTE HOLLIS
vs.
FREEMAN HARDIN HOLLIS

Court:TCA

Attorneys:

CAROL L. SOLOMAN, Nashville, Tennessee
Attorney for Defendant/Appellant

VIRGINIA LEE STORY, Franklin, Tennessee
Attorney for Plaintiff/Appellee
                          
Judge:FARMER

First Paragraph:

This divorce case involves the dissolution of the twenty-one year
marriage of Cara Annette Hollis (Wife) and Freeman Hardin Hollis
(Husband).  The trial court entered a final decree declaring the
parties divorced pursuant to T.C.A. S 36-4-129(b).  Husband has
appealed from the final decree, challenging the trial court's
decisions regarding child custody and alimony.  For reasons as
hereinafter stated, we affirm.

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

STATE OF TENNESSEE, CHILD   
SUPPORT SERVICES OF         
DAVIDSON COUNTY,  EX REL.       
CETTA COBBLE JACKSON
vs.     
HUBERT RUSSELL, 
IN THE MATTER OF:           
TIMOTHY BRYANT DEWAN COBBLE 
A Child Under the Age of Eighteen

Court:TCA

Attorneys:

JOHN KNOX WALKUP
Attorney General & Reporter

KIMBERLY M. FRAYN
Assistant Attorney General
2nd Floor Cordell Hull Building
425 Fifth Avenue, North
Nashville, Tennessee 37243-0499
    Attorney for Petitioner/Appellee

EVALINA C. CHEADLE
129 Second Avenue North
Nashville, Tennessee 37201
    Attorney for Respondent/Appellant
                          
Judge:CANTRELL

First Paragraph:

The primary question presented by this appeal is whether a Juvenile
Referee's decision giving a father credit for social security payments
made to his child could be reversed by the Juvenile Judge after it
allegedly had become final.  The State argues that a change in the law
makes the issue moot.  We reject the mootness argument and affirm the
lower court's order reversing the Referee's decision.

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

MAURICE KARR and            
MAURICE KARR, Trustee
vs.
PAUL C. GIBSON a/k/a            
PAUL CALVIN GIBSON

Court:TCA

Attorneys:

For Plaintiffs/Appellees:       For Defendant/Appellant:

Robert J. Notestine, III        Ramsey B. Leathers, Jr.
Nashville, Tennessee            Blackburn, Slobby, Freeman & Happell
                                Nashville, Tennessee
                          

Judge:KOCH

First Paragraph:

This appeal involves a deficiency judgment obtained against a Canadian
resident following service by publication.  The Canadian resident
filed a Tenn. R. Civ. P. 60.02 motion in the Chancery Court for
Davidson County seeking to set aside the default judgment obtained
against him on the grounds that service by publication was ineffective
and that he received no notice of the lawsuit before the trial court
granted the default judgment.  The trial court denied the motion, and
the Canadian resident has appealed.  We have determined that the
judgment must be set aside because a personal judgment cannot be
rendered against a nonresident defendant who is served only by
publication.

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

JOHN WATSON LITTLE and LESLIE   
EARL LITTLE, Executors for the  
Estate of LESLIE H. LITTLE, deceased.
vs.
MICHAEL HOGAN, JEFF PAYNE,  
and MIKE WILHELM TRUCKING, INC.

Court:TCA

Attorneys:

D. Russell Thomas, Herbert M. Schaltegger
218 W. Main St., Suite One
Murfreesboro, TN 37130
ATTORNEY FOR PLAINTIFFS/APPELLANTS

James D. Kay Jr.
Washington Square One, Suite 340M
222 Second Avenue, North
Nashville, TN 37201
ATTORNEY FOR DEFENDANTS/APPELLEES
                          
Judge:TODD

First Paragraph:


The captioned executors filed this suit to recover damages for the
wrongful death of 88 year old Leslie H. Little, deceased, who lost his
life in a motor vehicle collision at the intersection of North Main
Street and Colloredo Boulevard in Shelbyville, Bedford County,
Tennessee.  Movement of traffic through the intersection was
controlled by the multicolored lights of an ordinary traffic control
signal.

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

ROGER PERRY and DORIS PERRY
vs.
DONALD VAN HISE and JOSEPHINE    
VAN HISE, individually, and d/b/a    
VAN HISE CONSTRUCTION        
COMPANY

Court:TCA

Attorneys: 

Aubrey Harper, BR: 015817
P.O. Box 588
McMinnville, TN 37110               
ATTORNEY FOR PLAINTIFFS/APPELLANTS

J. Hilton Conger, BR: 3607              Thomas Bratcher, BR: 3869
200 South Third Street                  P.O. Box 568
Smithville, TN 37166                    McMinnville, TN 37110
ATTORNEYS FOR DEFENDANTS/APPELLEES
                         
Judge:TODD

First Paragraph:

This appeal involves the construction of a home.  Plaintiffs engaged
one of the defendants, Donald Van Hise, (hereafter, the defendant) to
construct a home on their property.  On May 24, 1994, defendant signed
a proposal to construct the house, reserving the right to withdraw the
proposal within 30 days, if not accepted by plaintiff.  One of the
plaintiffs signed an acceptance of the proposal.  The other did not. 
On June 25, 1994, defendant tendered another proposal on different
terms, which proposal was accepted by both plaintiffs.  The second
proposal contained an estimated time of completion of 3-1/2 - 4-1/2
months.  Both proposals contained a base contract price subject to
revision for changes during construction.  Both contracts refer to
"plans and specifications" but the record contains no plan and only a
partial set of specifications.  The plans and specifications were not
specifically prepared for plaintiffs, but were "generic," that is,
sold on the general market, to be altered as desired; and alterations
were made, producing part of the present controversy.

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

KEVIN SANDERS and wife,     
PATRICIA SANDERS, Property          
Owners and Citizens of Lincoln      
County, Tennessee
vs.
JERRY MANSFIELD, County     
Executive, and DONNY RAY HUDSON,    
Road Superintendent, Both of        
Lincoln County, Tennessee

Court:TCA

Attorneys:

WILLIAM W. BURTON
P. O Box 960
401 West Main Street
Murfreesboro, TN 37133-0960
    Attorney for Plaintiffs/Appellants

ROBERT W. SIMMS
P. O. Box 53
104 North Main Street
Fayetteville, Tennessee 37334
    Attorney for Defendants/Appellees
                          
Judge:CANTRELL

First Paragraph:

The primary question in this appeal is whether a road that splits the
appellants' farm is a public road.  Kevin Sanders and his wife filed
suit against two Lincoln County officials, to enjoin enforcement of a
county resolution that required them to remove stock gaps on a road
that crossed their farm.  The trial court dismissed the complaint and
granted the defendants' counterclaim to enjoin the plaintiffs from
willfully allowing their cattle to roam at large along the road.  We
affirm the trial court.

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

KARLA WYNETTE SHERRELL
vs.
ROBBIE JAMES SHERRELL

Court:TCA

Attorneys:

CHARLES W. HOLT, JR.
BOSTON, BATES, HOLT & SOCKWELL
235 Waterloo Street
P. O. Box 357
Lawrenceburg, TN 38464
    Attorney for Plaintiff/Appellee

DAVID L. ALLEN
200 Mahr Avenue
P. O. Box 369
Lawrenceburg, Tennessee 38464
    Attorney for Defendant/Appellant
                         
Judge:CANTRELL

First Paragraph:

In this divorce case, we granted the husband's Motion for
Interlocutory Appeal solely on the question of the trial court's
jurisdiction to determine the custody of the parties' three year old
son.  Our examination of the applicable law and of the facts in the
record lead us to find that the requirements of the Uniform Child
Custody Jurisdiction Act (UCCJA) preclude the trial court from
deciding child custody without first conferring with the court in the
child's home state of Texas.

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

MARCUS WEST
vs.
TENNESSEE DEPARTMENT OF 
CORRECTION and MORGAN   
COUNTY REGIONAL PRISON

Court:TCA

Attorneys: 

MARCUS WEST, PRO SE
TDOC No. 234495
C.C.W.C.
Caller #1
Roan Mt., Tennessee 37687

JOHN KNOX WALKUP
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

SOHNIA W. HONG
Assistant Attorney General
Civil Rights and Claims Division
2nd Floor Cordell Hull Building
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
ATTORNEY FOR THE RESPONDENTS/APPELLEES
                         
Judge:LEWIS

First Paragraph:

This is an appeal by petitioner/appellant, Marcus West, from an order
of the trial court granting the motion to dismiss for failure to state
a basis for a writ of certiorari or summary judgment of
respondents/appellees, the Tennessee Department of Correction ("the
Department") and the Morgan County Regional Facility ('the Facility").

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

STATE OF TENNESSEE
vs.
MAURICE TRAVON JOHNSON

Court:TCCA

Attorneys: 

For the Appellant:              For the Appellee:

Mark E. Stephens                John Knox Walkup 
District Public Defender        Attorney General of Tennessee
and                             and
John Halstead                   Georgia Blythe Felner
Assistant Public Defender       Asst Attorney General of Tennessee      
1209 Euclid Avenue          	450 James Robertson Parkway     
Knoxville, TN 37921             Nashville, TN 37243-0493
(AT TRIAL)
                                Randall E. Nichols
Mark E. Stephens                District Attorney General
District Public Defender        and
and                             Paula Gentry and C. Leon Franks
Paula R. Voss                   Asst District Attorney General
Assistant Public Defender       City County Building
1209 Euclid Avenue              Knoxville, TN 37902
Knoxville, TN 37921
(ON APPEAL)                         

Judge:Tipton

First Paragraph:

The defendant, Maurice Travon Johnson, appeals as of right from the
revocation of his probation by the Knox County Criminal Court.  He
contends that the trial court abused its discretion by revoking his
probation.  We affirm the revocation.

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

CHARLES EDWARD ORREN
vs.
HOWARD CARLTON, Warden  
and STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant:                  For the Appellee:

Charles Edward Orren, Pro Se        John Knox Walkup
N.E.C.C. #108907                    Attorney General and Reporter
P.O. Box 5000   
Mountain City, TN  37683            Michael J. Fahey, II
                                    Asst Attorney General                               
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                                                  
Judge:Hayes

First Paragraph:

The appellant, Charles Edward Orren, appeals the Johnson County
Criminal Court's dismissal of his pro se petition for writ of habeas
corpus.  The appellant was originally indicted by the Washington
County Grand Jury for aggravated rape on May 6, 1985. He pled guilty
to this charge in August, 1985 and received a sentence of thirty years
imprisonment.  The instant petition was filed on February 10, 1997. 
In seeking issuance of the writ of habeas corpus, the appellant
contends that the judgment entered against him is void because the
indictment failed to allege the mens rea of the offense charged.  The
trial court dismissed the appellant's petition finding that the
allegations concerning the sufficiency of the indictment are not
cognizable in habeas corpus proceedings and should have been raised on
direct appeal.  Additionally, the court included in its findings that,
at the time of the offense, proof of a culpable mental state was not
required.  The appellant appeals the trial court's ruling.

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

TOMMY HORTON TATE
vs.
CHARLES JONES, WARDEN

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

Tommy Horton Tate, Pro Se       John Knox Walkup
M.C.R.C.F.                      Attorney General of Tennessee
P.O. Box 2000                   and             
Wartburg, TN 37887              Michael J. Fahey, II
                                Asst Attorney General of Tennessee                  
                                450 James Robertson Parkway     
                                Nashville, TN 37243-0493

                                Charles E. Hawk, Jr.
                                District Attorney General
                                and
                                Frank Harvey
                                Asst District Attorney General
                                P.O. Box 703
                                Kingston, TN 37763
                          
Judge:Tipton

First Paragraph:

The petitioner, Tommy Horton Tate, appeals as of right the Morgan
County Criminal Court's denial of his petition for habeas corpus
relief.  He contends that his convictions for rape of a child are void
because the indictments do not allege the required mens rea.

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

Feel free to forward this Opinion-Flash on to any attorney you know of with an internet address, who is not a TBALink member. To Join TBALink - Http://www.tba.org/join.html/

Would you like to receive the TBALink Opinion-Flash each day via e-mail?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE
3) Leave the body of the message blank

Non TBA members are WELCOME to subscribe...it's free!!

Would you like to STOP receiving the TBALink Opinion-Flash?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: UNSUBSCRIBE
3) Leave the body of the message blank


© Copyright 1996-1997 Tennessee Bar Association