TBALink Opinion-Flash

February 23, 1998 -- Volume #4 -- Number #035

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
12-New Opinons From TCA
08-New Opinons From TCCA

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George Dean
TBALink Chief Editor


DENNIS O'NEIL MILLIGAN
vs.
TEN-STATE, INC.

Court:TSC - Workers Comp Panel

Attorneys:

FOR APPELLANT:                  FOR APPELLEE:

William F. Kendall, III         Keith S. Carlton
Waldrop & Hall, P.A.            Wood & Carlton
Jackson, Tennessee              Corinth, Mississippi
                          
Judge:Lanier

First Paragraph:

On or about July 9, 1993, while employed by the defendant, the
claimant was attempting to move a mobile home with the assistance of
fellow employees when his foot slipped and he was caused to twist and
fall to his knee.  He felt a burning sensation in his  lower back
shortly thereafter and reported this to his supervisor.  The company
referred him to a Dr. Howard Thomas, who in turn referred him to Dr.
R. J. Hornsby.  In the course of his examinations and treatments by
these physicians, he underwent not only an MRI, an EMG and nerve
conduction study, but also an epidural block and myelogram, which gave
him a severe spinal headache.  Because he continued to complain of
pain in the low back upon examination, he was also evaluated by a
physical therapist, who reported, ". . . he was totally inconsistent
in every test and no impairment was noted that was consistent." 
(Notes of Dr. Hornsby).

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

MAURICE DeVORE
vs.
DELOITTE & TOUCHE

Court:TCA

Attorneys:

For Plaintiff/Appellant:            For Defendant/Appellee:

Susan S. Garner                     William S. Walton
Robert J. Turner                    John S. Lewis
TURNER LAW OFFICES                  GIDEON & WISEMAN
Nashville, Tennessee                Nashville, Tennessee
                          
Judge:KOCH

First Paragraph:

This appeal involves an employment discrimination action filed by a
computer programmer who was discharged by a large national accounting
firm because of inadequate performance.  The programmer filed suit in
the Chancery Court for Davidson County alleging that his former
employer had terminated him because of his race and because he had
filed a discrimination charge with the Equal Employment Opportunity
Commission.  The trial court granted the employer's motion for summary
judgment, and the programmer appealed to this court.  We have
determined that the programmer has failed to demonstrate that he will
be able to produce competent, admissible evidence concerning essential
elements of his claims and, therefore, affirm the summary judgment.

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

JAMES DILLARD and wife,         
THELMA DILLARD
vs.
THE VANDERBILT UNIVERSITY       
and CENTRAL PARKING SYSTEM, INC.

Court:TCA

Attorneys:

For Plaintiffs/Appellants:          For Defendants/Appellees:

Anthony E. Hagan                    Joseph F. Welborn, III
Lebanon, Tennessee                  Bass, Berry & Sims
                                    Nashville, Tennessee
                          
Judge:KOCH

First Paragraph:

This appeal concerns a woman who was injured when she tripped over a
brightly painted concrete tire stop in a hospital parking garage.  The
woman and her husband filed a negligence action in the Circuit Court
for Davidson County against the owner and operator of the parking
garage.  The trial court granted the defendants' motion for summary
judgment, and the plaintiffs have appealed.  We affirm the summary
judgment because the defendants did not have a duty to protect patrons
from the tire stop.

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

CINDY DOOLEY (BLALOCK)
vs.
JOHN R. DOOLEY

Court:TCA

Attorneys: 

Thomas D. Frost, Murfreesboro, Tennessee
Attorney for Defendant/Appellant.

Jim Wiseman, WISEMAN & SCHNEIDER, Murfreesboro, Tennessee
Attorney for Plaintiff/Appellee.
                         
Judge:FARMER

First Paragraph:

John R. Dooley (Father) appeals from the order of the trial court
finding him in contempt of court for nonpayment of child support
pursuant to an Indiana divorce decree terminating his marriage to
Cindy Dooley (Blalock) (Mother).  The order also addresses
reimbursement for medical expenses, payment of future medical bills,
an increase in child support, a wage assignment and an award of
attorney's fees.  Father contends that the trial court's order should
be set aside because that court did not have personal jurisdiction
over him.

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

DAVID JOHN ERDLY
vs.
JANENE MARIE ERDLY

Court:TCA

Attorneys: 

R. E. Lee Davies
HARTZOG, SILVA & DAVIES
123 Fifth Avenue, North
P.O. Box 664
Franklin, TN 37065-0664
ATTORNEY FOR PLAINTIFF/APPELLANT

Virginia Lee Story
JOHNSTON, STORY, ALLEN & ABERNATHY
136 Fourth Avenue, South
P.O. Box 1608
Franklin, TN 37065-1608
ATTORNEY FOR DEFENDANT/APPELLEE
                         
Judge:TODD

First Paragraph:

The plaintiff, David John Erdly, has appealed from the judgment of the
Trial Court dismissing his suit for divorce, dividing the marital
estate, awarding plaintiff child custody and support and awarding the
defendant, Janene Marie Erdly, alimony for the remainder of her life.
    
URL:http://www.tba.org/tba_files/TCA/erdlydj_opn.WP6
Opinion-Flash

JAMES DANIEL GEYER, JR.
vs.
KATHLEEN HELEN GEYER

Court:TCA

Attorneys:

JOSEPH E. FORD
McBEE & FORD
17 So. College Street
Winchester, Tennessee 37398
Attorney for Plaintiff/Appellant

ROBERT F. HAZARD
COPELAND, CONLEY & HAZARD
111 West Grundy Street
P. O. Box 176
Tullahoma, Tennessee 37388
Attorney for Defendant/Appellee
                          
Judge:CANTRELL

First Paragraph:

This case arises from the divorce of James Geyer (the Husband) and
Kathleen Geyer (the Wife).  The trial court decreed the parties
divorced and awarded custody of their minor child to the Wife.  In
addition, the court ordered that the Wife be designated the custodian
of an account which was the sole property of the child.  The Husband
has brought this appeal before the Court of Appeals.

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

THOMAS W. HARRISON,     
TERRY HARRISON, and     
BRENDA KENNAMORE
vs.
EARL LAURSEN and            
DOLORITA LAURSEN

Court:TCA

Attorneys: 


For Plaintiffs/Appellees:           For Defendants/Appellants:

M. Andrew Hoover                    John S. Colley, III
ANDREW HOOVER & ASSOCIATES          COLLEY & COLLEY
Pulaski, Tennessee                  Columbia, Tennessee
                         
Judge:KOCH

First Paragraph:

This appeal stems from a contractual dispute over the sale of a
128-acre farm in Giles County.  The sellers filed suit in the Chancery
Court for Giles County alleging that the buyers had breached their
contract by defaulting on their payments.  The buyers counterclaimed
that the sellers had breached the contract by failing to provide city
water for the property.  The trial court, sitting without a jury,
rescinded the contract, awarded the sellers their unpaid interest as
well as the buyers' previous payments, and dismissed the buyers'
counterclaim.  This court reversed the damages portion of the judgment
and remanded the case for another trial on the issue of damages only. 
The case has been tried four additional times since that appeal.  The
buyers have now appealed to this court for the third time following a
$32,901.54 jury verdict for the sellers in the fifth trial.  We have
determined that the judgments against the buyers must again be vacated
because the trial court erroneously refused to permit one of the
buyers, who was representing himself, to testify and because the
judgment against the other buyer was reversed by this court on the
second appeal.

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

CURTIS LANDRY, JR., d/b/a       
LANDRY AND ASSOCIATES
vs.
JOHN DANIEL RUDD

Court:TCA

Attorneys:

Stephen W. Pate
218 West Main Street
Suite One
Murfreesboro, TN 37130
ATTORNEY FOR PLAINTIFF/APPELLEE

William Kennerly Burger
301 North Spring Street
Murfreesboro, TN 37133-0398
ATTORNEY FOR DEFENDANT/APPELLANT
                          
Judge:TODD

First Paragraph:

The defendant, John Daniel Rudd, has appealed from a judgment of the
Trial Court allowing the enrollment of two foreign judgments, both in
favor of the plaintiff, John Landry and against the defendant.

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

RESIDENTS AGAINST INDUSTRIAL    
LANDFILL EXPANSION, INC.
vs.
TENNESSEE DEPARTMENT OF     
ENVIRONMENT AND CONSERVATION    
and DIVERSIFIED SYSTEMS, INC.

Court:TCA

Attorneys:

For Residents Against Industrial    For the Dept. of Environment
Landfill Expansion, Inc.:           and Conservation:

Gary A. Davis                       John Knox Walkup
Knoxville, Tennessee                Attorney General and Reporter

                                    Barry Turner
                                    Deputy Attorney General

                                    For Diversified Systems, Inc.:

                                    R. Louis Crossley, Jr.
                                    Knoxville, Tennessee
                                                          
Judge:KOCH

First Paragraph:

This appeal involves a dispute over a decision by the Tennessee
Department of Environment and Conservation to grant a solid waste
disposal permit to expand an existing industrial waste landfill in
McMinn County.  A nonprofit corporation whose members reside near the
landfill filed a petition for common law writ of certiorari in the
Chancery Court for Davidson County challenging the permitting
decision, and the Department moved to dismiss the petition on the
ground that it was not timely.  The trial court declined to dismiss
the petition but also declined to set aside the Department's decision
to grant the permit.  On this appeal, the opponents of the landfill
expansion take issue with the permitting procedures and with the
evidentiary foundation of the Department's decision, and the
Department asserts that the petition should have been dismissed
because it was not timely filed.  Since we have determined that the
landfill's opponents did not timely file their petition, we reverse
the order denying the motion to dismiss without addressing the
opponents' substantive challenges to the Department's permitting
decision.

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

BOBBY ROBERSON
vs.
MARTHA BRASFIELD, Commr., et al.

Court:TCA

Attorneys: 

BOBBY ROBERSON, pro se
Henning, Tennessee

JOHN KNOX WALKUP
Attorney General & Reporter
STEVEN A. HART
Special Counsel
Nashville, Tennessee
Attorney for Appellee
                         
Judge:HIGHERS

First Paragraph:

Plaintiff, Bobby Roberson ("Roberson"), appeals the order of the trial
court granting the motion of  Defendants, Martha Brasfield,
Commissioner of the Tennessee Claims Commission ("Commissioner");
Jimmy Harrison, Warden of Cold Creek Correctional Facility
("C.C.C.F."); and Roy Kelly, correctional officer at C.C.C.F., to
dismiss the action under Tennessee Rule of Civil Procedure 12.02 for
failure to state a claim upon which relief can be granted and for lack
of subject matter jurisdiction.  Roberson appeals the trial court's
judgment.  For reasons stated hereinafter, we affirm the judgment of
the trial court.

URL:http://www.tba.org/tba_files/TCA/robersnb.opn
Opinion-Flash

WILLIAM JEFFREY TARKINGTON
vs.
REBECCA JUANITA TARKINGTON

Court:TCA
                        
Judge:TODD

First Paragraph:

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

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

VENTURE EXPRESS, INC.
vs.
MICHAEL E. ZILLY, Ind., ZILLY       
TRANSPORTATION SERVICES,    
INC., and ZILLY SERVICES, LLC

Court:TCA

Attorneys:

W. LEE CORBETT
DAVID F. LEWIS
CORBETT CROCKETT & LECKRONE
Nashville, Tennessee
Attorneys for Appellants

DAVID W. KIOUS
Murfreesboro, Tennessee
Attorney for Appellee
                          
Judge:HIGHERS

First Paragraph:

Defendants Michael E. Zilly, Zilly Transportation Services, Inc., and
Zilly Transportation Services, LLC, appeal the trial court's judgment
awarding $78,000 to Plaintiff/Appellee Venture Express, Inc.  We
reverse the judgment because we conclude that the evidence does not
support the trial court's ruling that Zilly breached his fiduciary
duty to Venture Express.

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

FREDERICK A. BUTLER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

GARLAND ERGUDEN             JOHN KNOX WALKUP 
242 Poplar Avenue           Attorney General & Reporter
Memphis, TN  38103 
                            JANIS L. TURNER 
                            Assistant Attorney General
                            2nd Floor, Cordell Hull Building
                            425 Fifth Avenue North 
                            Nashville, TN  37243

                            JOHN W. PIEROTTI 
                            District Attorney General 

                            PAUL GOODMAN 
                            Assistant District Attorney General
                            201 Poplar Avenue - Third Floor
                            Memphis, TN  38103
                          
Judge:WOODALL

First Paragraph:

The Appellant, Frederick A. Butler, appeals as of right from the trial
court's dismissal of his petition for post-conviction relief following
an evidentiary hearing.  The issue presented for review, as stated in
Appellant's brief, is as follows:  "The trial judge erred in finding
that Petitioner's guilty plea was knowing and voluntary and not the
product of ineffective assistance of counsel."  After a review of the
entire record on appeal, the arguments of counsel, and the applicable
law, we affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCCA/butlerfa.opn
Opinion-Flash

STATE OF TENNESSEE
vs.
ELIZABETH R. CAMPBELL

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

Donald E. Spurrell              John Knox Walkup
Attorney at Law                 Attorney General & Reporter
128 East Market Street          500 Charlotte Avenue
Johnson City, TN 37604          Nashville, TN 37343-0497
(Trial and Appeal)
                                Peter M. Coughlan 
Stacey L. Street                Assistant Attorney General
Attorney at Law                 450 James Robertson Parkway
630 Elk Avenue                  Nashville, TN 37243-0493
Elizabethton, TN 37643
(Trial Only)                    David E. Crockett
                                District Attorney General
                                Route 1, Box 99
                                Johnson City, TN 37641

                                Kenneth C. Baldwin
                                Asst District Attorney General
                                Carter County Courthouse Annex
                                Elizabethton, TN 37643

                                Steven R. Finney
                                Asst District Attorney General
                                Carter County Courthouse Annex
                                Elizabethton, TN 37643
                          
Judge:Jones

First Paragraph:

The appellant, Elizabeth R. Campbell (defendant), was convicted of
criminally negligent homicide, a Class E felony, by a jury of her
peers.  The trial court, finding the defendant to be a standard
offender, imposed a Range I sentence consisting of a $3,000 fine and
confinement for one (1) year in the Department of Correction.  In this
court, the defendant contends the trial court should have suspended
her sentence and placed her on probation or imposed some form of
alternative sentence.  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/cmpbler_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
MATTIE MARCELLA DAVIS,          
aka MATTIE HILL

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

Hershell D. Koger           John Knox Walkup
Attorney at Law             Attorney General & Reporter
P.O. Box 1148               425 Fifth Avenue, North
Pulaski, TN 38478           Nashville, TN 37243-0497

                            Georgia B. Felner
                            Counsel for the State
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            W. Michael McCown 
                            District Attorney General
                            P. O. Box 904
                            Fayetteville, TN 37334

                            Weakley E. Barnard
                            Assistant District Attorney General
                            Marshall County Courthouse, Fourth Floor
                            Lewisburg, TN 37091
                         

Judge:Jones

First Paragraph:

The appellant, Mattie Marcella Davis, also known as Mattie Hill
(defendant), was convicted of theft over the value of $1,000, a Class
D felony, following her plea of guilty to this offense.  The trial
court found the defendant was a standard offender and imposed a Range
I sentence consisting of confinement for twenty-five (25) months in
the Department of Correction pursuant to a plea agreement.  In this
court, the defendant contends the trial court abused its discretion by
refusing to impose an alternative sentence.  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 pursuant
to Rule 20, Tennessee Court of Criminal Appeals.

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

Franko D. Fykes
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

Franko Donell Fykes,Pro Se          John Knox Walkup
TDOC No. 109999                     Attorney General and Reporter
Cold Creek Correctional Facility
P.O. Box 1000
Henning, TN 38041-1000              Lisa A. Naylor
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243

                                    Victor S. Johnson
                                    District Attorney General

                                    Nick Bailey
                                    Assistant District Attorney
                                    Washington Square, Ste 500
                                    Nashville, TN 37201-1649
                         
Judge:SMITH

First Paragraph:

In this appeal of the summary dismissal of his post-conviction
petition Appellant, Franko Donell Fykes, asks this Court to review the
validity of his conviction entered upon his pleas of guilty on March
20, 1986.  Appellant pled guilty to aggravated rape and burglary of an
automobile.  As part of the plea agreement Appellant received
sentences totaling forty-four years.

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

STATE OF TENNESSEE
vs.
CHRISTOPHER DALE GIBBS

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

LIONEL BARRETT              JOHN KNOX WALKUP
222 Second Ave. N.          Attorney General & Reporter
Nashville, TN 37201         
                            LISA A. NAYLOR
                            Assistant Attorney General
                            Criminal Justice Division
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493    

                            DAN MITCHUM ALSOBROOKS
                            District Attorney General
                            Court Square, P.O. Box 580
                            Charlotte, TN 37036-0580

                            JAMES W. KIRBY
                            Asst District Attorney General
                            105 Sycamore St.
                            Ashland City, TN 37015-1806
                          
Judge:WITT

First Paragraph:

The defendant, Christopher Dale Gibbs, was convicted in a jury trial
in the Cheatham County Circuit Court of vehicular homicide by reckless
driving, a Class C felony.  The defendant pleaded guilty to leaving
the scene of an accident, a Class E felony.  As a Range I, standard
offender, he received a six-year sentence for vehicular homicide and a
consecutive two-year sentence for leaving the scene.  In this direct
appeal,  the defendant challenges the sufficiency of the evidence and
contends that his sentences are excessive and that the trial judge
erred in imposing consecutive sentences.

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

STATE OF TENNESSEE
vs.
JOHN H. HACKNEY

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

L. GILBERT ANGLIN               JOHN KNOX WALKUP 
8 Lincoln Square                Attorney General & Reporter
1535 West Northfield Blvd.
Murfreesboro, TN  37129         KAREN M. YACUZZO 
                                Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North 
                                Nashville, TN  37243

                                WILLIAM C. WHITESELL 
                                District Attorney General 

                                JOHN W. PRICE, III
                                Asst District Attorney General
                                303 Rutherford County Judicial Bldg.
                                Murfreesboro, TN  37130 
                         
Judge:WOODALL

First Paragraph:

The Defendant, John Harold Hackney, appeals as of right his conviction
of first offense DUI following a jury trial in the Circuit Court of
Rutherford County.  The trial court sentenced Defendant to eleven (11)
months and twenty-nine (29) days, with all but four (4) days
suspended.  In this appeal, Defendant argues that the trial court
erred in not suppressing the results of his Intoximeter 3000 test
because he was not observed for the requisite twenty minute period
prior to administration of the test.  We affirm the judgment of the
trial court.

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

STATE OF TENNESSEE
vs.
MICHAEL D. HARVEY

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

J. Colin Morris             John Knox Walkup
Attorney at Law             Attorney General & Reporter
204 West Baltimore
P.O. Box 1623               Janis L. Turner     
Jackson, TN 38302-1623      Counsel for the State
                            Criminal Justice Division
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493     

                            Jerry Woodall
                            District Attorney General
                        
                            Donald H. Allen
                            Asst District Attorney General
                            State Office Building, Suite 201-A
                            P.O. Box 2825
                            Jackson, TN 38302
                                      
Judge:SUMMERS

First Paragraph:
    
The appellant, Michael D. Harvey, pled guilty to two counts of
aggravated burglary, theft of property over $1000, and theft of
property under $500.  In September 1996 the trial court sentenced the
defendant as a Range I, standard offender, to six years for each count
of the aggravated burglary, four years for the theft of property over
$1000, and eleven months and twenty-nine days for the theft of
property under $500.  All of the appellant's sentences were to run
concurrently.

URL:http://www.tba.org/tba_files/TCCA/harveymd.opn
Opinion-Flash

STATE OF TENNESSEE
vs.
EDWARD EARL HUDDLESTON

Court:TCCA

Attorneys: 

For the Appellant:              For the Appellee:

C. Michael Robbins              John Knox Walkup
3074 East Street                Attorney General and Reporter
Memphis, TN  38128  
                                Elizabeth T. Ryan
(ON APPEAL)                     Assistant Attorney General                              
                                Criminal Justice Division
                                450 James Robertson Parkway
Tom W. Crider                   Nashville, TN 37243 0493            
District Public Defender    
107 South Court Square                      
Trenton, TN  38382              Clayburn Peeples, Jr.           
                                District Attorney General
(AT TRIAL)                      110 South College Street
                                Suite 200
                                Trenton, TN  38382
                         
Judge:Hayes

First Paragraph:

The appellant, Edward Earl Huddleston, appeals his jury conviction for
rape of a child, a class A felony.  The trial court sentenced the
appellant to the presumptive sentence of twenty years in the Tennessee
Department of Correction. On appeal, the appellant first contends that
the trial court erred in finding the eight year old victim competent
to testify against him.  Second, he asserts that the trial court erred
when it failed to find as a mitigating factor that the appellant
neither caused nor threatened to cause the victim serious bodily
injury.

URL:http://www.tba.org/tba_files/TCCA/hudlstne.opn

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