TBALink Opinion-Flash

March 30, 1998 -- Volume #4 -- Number #057

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):
04-New Opinons From TSC
00-New Opinons From TSC-Rules
01-New Opinons From TSC-Workers Comp Panel
00-New Opinons From TCA
03-New Opinons From TCCA

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George Dean
TBALink Chief Editor


COLEMILL ENTERPRISES, INC.
vs.                           
JOE HUDDLESTON, Commissioner    
of Tennessee Department of Revenue

Court:TSC

Attorneys:

For the Plaintiff:          For the Defendant:

Richard L. Colbert          John Knox Walkup
Cornelius & Collins         Attorney General and Reporter
Nashville, Tennessee                    
                            Michael E. Moore
                            Solicitor General
                            
                            Charles L. Lewis
                            Deputy Attorney General
                            
                            Gary N. Meade, Jr.
                            Assistant Attorney General
                            Nashville, Tennessee 
                          
Judge:Drowota

First Paragraph:

We granted the applications of both Colemill Enterprises, Inc. and the
Department of Revenue in this action in which Colemill Enterprises,
Inc., pursuant to Tenn. Code Ann. S 67-1-1801, challenges an
assessment against it of state and local sales taxes.  The assessment
was based on transactions whereby Colemill Enterprises, Inc.
substantially modified airplanes for out-of-state customers.

URL:http://www.tba.org/tba_files/TSC/colmilen_opn.WP6
Opinion-Flash

HAZEL MAXINE COLN and       
husband, CARL F. COLN
vs.
CITY OF SAVANNAH, TENNESSEE
and
DEBBIE VANCLEAVE
vs.
MATTHEW MARKOWSKI and       
wife, DIANE MARKOWSKI

Court:TSC

Attorneys:

For Appellants, Coln:           For Appellee, City of Savannah:
Edward L. Martindale, Jr.       James A. Hopper
DREW AND MARTINDALE             Savannah, Tennessee
Jackson, Tennessee


For Appellant, Vancleave:       For Appellees, Markowski:
James H. Bradberry              Russell E. Reviere
JAMES H. BRADBERRY              Bradford D. Box
   & ASSOCIATES                 RAINEY, KIZER, BUTLER, REVIERE
Dresden, Tennessee              & BELL, P.L.C.
                                Jackson, Tennessee

                         
Judge:ANDERSON

First Paragraph:

We granted permission to appeal in two premises liability cases to
determine a common question to both - whether and to what extent the
traditional open and obvious rule eliminating a landowner's duty to
one injured as a result of an open and obvious danger continues to be
viable after the adoption of comparative fault in McIntyre v.
Balentine, 833 S.W.2d 52 (Tenn. 1992).

URL:http://www.tba.org/tba_files/TSC/colnhm_opn.WP6
Opinion-Flash

MICHAEL SCOTT EVANS
vs.
KAREN MARIE BISSON STEELMAN
and
IN THE MATTER OF: SEAN MICHAEL      
CRAWFORD, A CHILD UNDER 18      
YEARS OF AGE, THOMAS MICHAEL    
CIHLAR
vs.
MARY ANN CRAWFORD and           
RONALD SHANE CRAWFORD

Court:TSC

Attorneys: 

Attorneys for Appellant Evans:      Attorneys for Appellee Steelman:

Clark Lee Shaw                      Philip W. Duer
Nashville, Tennessee                Nashville, Tennessee           

                                    Mary Arline Evans
                                    Nashville, Tennessee 

Attorney for Appellant Cihlar:      Attorney for Appellees Crawford:
    
Wayne Detring                       John L. Schlechty
Hendersonville, Tennessee           New York, New York

Attorney for Amicus Curiae,         Attorney for the State of TN:
Samuel T. Bartle, M.D.:
R. Miles Mason                      John Knox Walkup
Memphis, Tennessee                  Attorney General & Reporter

Of Counsel:                         Michael E. Moore
Professor Barbara Kritchevsky       Solicitor General
Memphis, Tennessee          
                                    Linda A. Ross
                                    Associate Solicitor General
    
                                    Kimberly M. Frayn
                                    Assistant Attorney General
                                    Nashville, Tennessee 
                             
Judge:ANDERSON

First Paragraph:

We granted the applications for permission to appeal and consolidated
these two cases to decide whether, pursuant to Tenn. Code Ann. S
36-2-202 (1996 Repl.)(repealed 1997), a child is "born out of wedlock"
when the child's mother is married, but not to the biological father,
at the time of the child's birth.  If not "born out of wedlock," the
biological father has no standing to legitimate the child.

URL:http://www.tba.org/tba_files/TSC/evansms_opn.WP6
Opinion-Flash

CONSUMER ADVOCATE DIVISION, 
OFFICE OF THE ATTORNEY      
GENERAL, STATE OF           
TENNESSEE
vs. 
H. LYNN GREER, CHAIR; SARA          
KYLE, DIRECTOR, and MELVIN                      
MALONE, DIRECTOR,           
CONSTITUTING THE TENNESSEE          
REGULATORY AUTHORITY,           
and BELLSOUTH                   
TELECOMMUNICATIONS, INC.

Court:TSC

Attorneys:

For Appellants - 
Greer, Kyle & Malone:                   For Appellees
Paul C. Ney Jr.                         John Knox Walkup
Gregory Mitchell                        Attorney General & Reporter
DORAMUS, TRAUGER & NEY          
Nashville, Tennessee                    Michael E. Moore
                                        Solicitor General
For Appellants - BellSouth
Guy Hicks                               L. Vincent Williams
BELLSOUTH TELECOMMUNICATIONS            Consumer Advocate 
Nashville, Tennessee                    Office of Attorney General
                                        Nashville, Tennessee
Bennett L. Ross
BELLSOUTH TELECOMMUNICATIONS
Atlanta, Georgia
                          
Judge:DROWOTA

First Paragraph:

We granted this appeal to determine two issues: (1) whether the
petition to intervene filed with the Tennessee Regulatory Authority
("TRA"), by the Consumer  Advocate Division of the Attorney General's
Office ("Advocate"), constituted a written complaint; and  (2) whether
the TRA is statutorily required to hold a contested case hearing upon
the filing of a written complaint.

URL:http://www.tba.org/tba_files/TSC/tennreg_opn.WP6
Opinion-Flash

BETTY A. PRIMM
vs.
KANTUS CORPORATION and  
THE YASUDA FIRE & MARINE    
INS. CO. OF AMERICA

Court:TSC - Workers Comp Panel

Attorneys:

For the Appellants:                 For the Appellees:

John R. White                       Charles G. Blackard
Charles L. Rich                     155 Franklin Road, Suite 155
202 First National Bank Bldg.       Brentwood, Tennessee 37027
P. O. Box 169
Shelbyville, TN 37162
                          
Judge:INMAN

First Paragraph:

Appellate review requires that we presume that the judgment of the
trial court is correct. Rule 13(d), T. R. A. P. We indulge no other
presumptions, but look to see where the preponderance of the evidence
lies.  T.C.A. S 50-6 225(e)(2).  It is axiomatic that the essential
elements of a workers' compensation case, like any other, must be
proved, and that the plaintiff must bear the burden of proof.  There
are no presumptions at the trial level.  See, Tindall v. Waring Park
Ass'n., 725 S.W.2d 935 (Tenn. 1987).  While we do not substitute our
judgment for that of the trial judge, we are as well positioned to
judge the probative worth of depositional testimony.  Cooper v. INA,
884 S.W.2d 446 (Tenn. 1994).

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

STATE OF TENNESSEE
vs.
MICHAEL DEANGELO GREEN

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

EDWARD T. LANDIS                JOHN KNOX WALKUP
Suite 327, Doctors Building     Attorney General and Reporter
744 McCallie Avenue                 
Chattanooga, TN 37408           MICHAEL J. FAHEY, II
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                GARY D. GERBITZ 
                                District Attorney General
                        
                                DAVID DENNY
                                Asst District Attorney General
                                Suite 300, Court Building
                                Chattanooga, TN 37402
                         
Judge:CRAFT

First Paragraph:

The defendant, Michael Deangelo Green, was tried by a Hamilton County
jury on twelve indictments, all consolidated for trial, which resulted
from a crime spree committed between July 6 and July 11, 1993.

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

STATE OF TENNESSEE
vs.
RICKY LEBRON HUFF

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

DONNA R. MILLER                     JOHN KNOX WALKUP
Office of the Public Defender       Attorney General and Reporter
Suite 300, 701 Cherry Street            
Chattanooga, TN 37402               MICHAEL J. FAHEY, II
                                    Assistant Attorney General
For Appeal Only:                    450 James Robertson Parkway
RANDALL E. REAGAN                   Nashville, TN 37243-0493
602 Gay Street, Suite 905
Knoxville, TN 37902                 GARY D. GERBITZ
                                    District Attorney General
                        
                                    LELAND DAVIS
                                    Asst District Attorney General
                                    City-County Courts Building
                                    Chattanooga, TN 37402
                          
Judge:CRAFT

First Paragraph:

The defendant, Ricky Lebron Huff, appeals as of right from a jury
conviction for aggravated robbery.

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

STATE OF TENNESSEE
vs.
ADRIAN D. SMITH

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

Ardena J. Garth                     John Knox Walkup
District Public Defender            Attorney General & Reporter

Donna Robinson Miller               Marvin E. Clements, Jr.     
Asst District Public Defender       Assistant Attorney General
701 Cherry Street, Suite 300        425 5th Avenue North
Chattanooga, TN 37402               Nashville, TN 37243-0493            
                                    William H. Cox
                                    District Attorney General  

                                    Barry Steelman
                                    Asst District Attorney General
                                    600 Market Street--Courts Bldg
                                    Chattanooga, TN 37402
                                                  
Judge:SUMMERS

First Paragraph:

Adrian D. Smith pled guilty to aggravated assault and resisting a
stop.  In October 1996 the trial court sentenced the appellant as a
Range I, standard offender, to three years for the aggravated assault
conviction and to six months for the resisting a stop conviction.  His
sentences were to run concurrently.  The trial court denied the
appellant's request for an alternative sentence.

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

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