TBALink Opinion-Flash

June 2, 1998 -- Volume #4 -- Number #083

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):
06-New Opinons From TSC
01-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
02-New Opinons From TCA
08-New Opinons From TCCA

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TBALink Chief Editor


STATE OF TENNESSEE
vs.
JAMES J. BENSON,

Court:TSC

Attorneys:

For Plaintiff-Appellee:         For Defendant-Appellant:

John Knox Walkup                William H. Farmer
Attorney General & Reporter     Stephen W. Grace
Nashville                       Waller Lansden Dortch & Davis
                                Nashville
Michael E. Moore
Solicitor General
Nashville

Gordon W. Smith
Associate Solicitor General
Nashville

Amy L. Tarkington
Assistant Attorney General
Nashville

Joseph D. Baugh, Jr.
District Attorney General
Franklin                          

Judge:REID

First Paragraph:

This case presents for review the appeal by the petitioner, James J.
Benson, from the judgment of the Court of Criminal Appeals affirming
the trial court's denial of his petition for post-conviction relief. 
The petitioner asserts that he was denied the right to a fair trial
before an impartial judge because the judge who presided over his
criminal trial solicitated a bribe from him. The judgment denying the
petition is reversed, and the petitioner is granted a new trial.

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

CASTLEWOOD, INC.
vs.
ANDERSON COUNTY, TENNESSEE; PATSY   
STAIR, TRUSTEE; OWEN K. RICHARDSON,
TAX ASSESSOR; CITY OF OAK RIDGE,    
TENNESSEE; AND THE TENNESSEE STATE  
BOARD OF EQUALIZATION

Court:TSC

Attorneys: 

For Plaintiff-Appellant:        For Defendants-Appellees:

Bernard E. Bernstein            David A. Stuart
Knoxville                       Clinton

Doris C. Allen                  Robert W. Wilkinson
Knoxville                       Oak Ridge

                                John Knox Walkup
                                Attorney General & Reporter
                                Nashville

                                Michael E. Moore
                                Solicitor General
                                Nashville

                                Christine Lapps
                                Assistant Attorney General
                                Nashville                         

Judge:REID

First Paragraph:

This case presents for review the Court of Appeals' decision that the
classification as industrial and commercial of two or more condominium
units rented by the owner to others for their use as residences does
not violate Article II, Section 28 of the Tennessee Constitution.  Nor
does the statute violate the equal protection clause of the United
States Constitution.  That decision is affirmed.

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

PATRICIA LOVE
vs.
AMERICAN OLEAN TILE COMPANY 
and LIBERTY MUTUAL INSURANCE    
COMPANY
and
SUE ANN HEAD, DIRECTOR OF THE   
DIVISION OF WORKERS'        
COMPENSATION, STATE OF      
TENNESSEE

Court:TSC

Attorneys:

For the Appellant:                  For the Appellee, Sue Ann Head,
                                    Director of the Division of Workers' 
Lisa June Cox                       Compensation:
Jackson
                                    John Knox Walkup
For the Appellees, American Olean   Attorney General and Reporter
Tile Company and American Mutual
Insurance Company:                  Sue A. Sheldon
                                    Assistant Attorney General
Lewis L. Cobb
Catherine B. Clayton                Sandra E. Keith
Jackson                             Assistant Attorney General

                                    Dianne Stamey Dycus
For the Amicus Curiae,              Senior Counsel  
Tennessee Trial Lawyers             
Association:                            
                            
J. Anthony Farmer
Knoxville                          

Judge:DROWOTA

First Paragraph:

In this workers' compensation action, the employee, Patricia Love,
plaintiff-appellant, has appealed from a judgment of the Circuit Court
of Madison County awarding her permanent total disability benefits to
age 65 or until the payment of such benefits reached the maximum total
benefit.  The trial court apportioned the award 67.5 percent to the
Second Injury Fund and 32.5 percent to the employer, American Olean
Tile Company, and its insurer, Liberty Mutual Insurance Company,
defendants-appellees.  The Special Workers' Compensation Appeals
Panel, upon reference for findings of fact and conclusions of law
pursuant to Tenn. Code Ann. S 50-6-225(e)(5), affirmed the trial
court.  Thereafter, the employee filed a motion for full Court review
of the Panel's decision.  We granted the motion for review to
determine (1) whether it was error not to have awarded benefits
payable to age 65 notwithstanding the maximum total benefit, and (2)
whether the apportionment between the employer and the Second Injury
Fund was correct.  After examining the record before us and
considering the relevant authorities, we  reverse the decision of the
lower courts to subject the employee's award to the maximum total
benefit.  However, we affirm the apportionment of the award between
the employer and the Second Injury Fund under Tenn. Code Ann. S
50-6-208(a).

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

WIN MYINT and wife              
PATTI K. MYINT
vs.
ALLSTATE INSURANCE COMPANY

Court:TSC

Attorneys: 

For Appellants:                 For Appellee:

JOSEPH H. JOHNSTON              BARRY FRIEDMAN
Nashville, TN                   PAIGE WALDROP MILLS
                                JOHN D. SCHWALB
                                Nashville, TN

                                JON L. FLEISCHAKER
                                Louisville, KY
                         

Judge:BIRCH

First Paragraph:

In this cause, the insuror refused to pay a claim under a policy of
insurance.  The insured contends that such refusal constitutes an
"unfair or deceptive act or practice," in violation of the Consumer
Protection Act, Tenn. Code Ann. SS 47-18-101, et seq.  In contrast,
the insuror insists that Tenn. Code Ann. S 56-7-105, commonly known as
the "bad faith statute," is the exclusive remedy for the bad faith
denial of an insurance claim.  Because Title 56, Chapters 7 and 8 of
the Tennessee Code comprehensively regulates the insurance industry,
the insuror insists that the acts and practices of an insurance
company are never subject to the Consumer Protection Act.

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

NORTHWEST AIRLINES, INC.,       
FEDERAL EXPRESS CORPORATION,        
AMERICAN AIRLINES, INC., FLAGSHIP   
AIRLINES, AND DELTA AIR LINES,  
INC.
vs.
TENNESSEE STATE BOARD OF EQUALIZATION
and
CSX TRANSPORTATION, INC.
vs.
TENNESSEE STATE BOARD OF EQUALIZATION
and
ILLINOIS CENTRAL RAILROAD COMPANY
vs.
TENNESSEE STATE BOARD OF EQUALIZATION

Court:TSC

Attorneys: 
        
For Plaintiffs-Petitioners:             For Defendant-Respondent:

Stephen D. Goodwin                      John Knox Walkup
Janis Wild Kesser                       Attorney General & Reporter
Baker, Donelson, Bearman & Caldwell     Nashville
Memphis
                                        Jimmy G. Creecy 
James W. McBride                        Chief Special Counsel
Baker, Donelson, Bearman & Caldwell     Nashville
Washington, D.C.
                                        Daryl J. Brand
                                        Senior Counsel
                                        Nashville
                         

Judge:REID

First Paragraph:

Pursuant to Rule 23 of the Rules of the Supreme Court of Tennessee,
this Court has accepted from the United States District Court for the
Middle District of Tennessee a certified question of law regarding the
effect of the 1996 amendment to Tenn. Code Ann. S 67-5-1512(b)(2) on
the calculation of interest on property tax payments and refunds.

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

SUPREME COURT OF TENNESSEE
STATE LIST FOR PERMISSION TO APPEAL
June 1, 1998    

Court:TSC - Rules

URL:http://www.tba.org/tba_files/TSC_RULES/statelst30_61.WP6
Opinion-Flash

WAYNE MILLER and    
ELIZABETH ANN MILLER
vs.
DAVID WILLBANKS, M.D.,  
HAMBLEN PEDIATRIC   
ASSOCIATES, INC. and    
MORRISTOWN-HAMBLEN  
HOSPITAL ASSOCIATION,   
    
Court:TCA

Attorneys: 

Judy McCarthy, Knoxville, Tennessee
Dennis M. McCarthy, Knoxville, Tennessee
Attorneys for Plaintiffs/Appellants.

Douglas L. Dutton, Knoxville, Tennessee
Amy V. Hollars, Knoxville, Tennessee
Attorneys for Defendants/Appellees David Willbanks, M.D. and Hamblen
Pediatric Associates, P.C.

R. Franklin Norton, Knoxville, Tennessee
Gary G. Spangler, Knoxville, Tennessee
Attorneys for Defendant/Appellee Morristown-Hamblen Hospital
Association
                         
Judge:FARMER

First Paragraph:

Plaintiffs Wayne and Elizabeth Ann Miller appeal the trial court's
summary judgment which dismissed the Millers' claims for outrageous
conduct and negligent infliction of emotional distress against
Defendants/Appellees David Willbanks, M.D., Hamblen Pediatric
Associates, Inc., and Morristown-Hamblen Hospital Association.  We
affirm the trial court's judgment based on our conclusion that, even
when viewed in the light most favorable to the Millers, the evidence
fails to support a cause of action for these claims against the
Defendants.

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

BERNARD S. RUBIN
vs.
JENNIFER RUBIN

Court:TCA

Attorneys:

SELMA CASH PATY OF CHATTANOOGA FOR APPELLANT

B. PRINCE MILLER, JR., OF CLEVELAND FOR APPELLEE
                          
Judge:Goddard

First Paragraph:

Jennifer Rubin appeals a final judgment of the Trial Court entered on
June 5, 1997.  The Trial Court placed primary physical custody of the
parties' only child, a daughter, 16 months of age at that time, with
the father and ordered Ms. Rubin to pay child support in the amount of
$150 per month.  She also appeals a further order of the Trial Court
in connection with a custody hearing entered on August 22, 1997, which
awarded sole custody of the child to the father.

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

STATE OF TENNESSEE
vs.
JOHN JASON BAKENHUS

Court:TCCA

Attorneys: 

For Appellant:                  For Appellee:

Gregory D. Smith                John Knox Walkup
One Public Square, Ste. 321     Attorney General and Reporter
Clarksville, TN  37040          
(on appeal)                     Janis L. Turner
                                Counsel for the State
Edward E. DeWerff               Criminal Justice Division
103 S. Third Street             Cordell Hull Building, Second Floor
Clarksville, TN  37040          425 Fifth Avenue North
(at trial)                      Nashville, TN  37243-0493
        
                                Arthur F. Bieber
                                Assistant District Attorney General
                                204 Franklin Street, Ste. 200
                                Clarksville, TN  37040                         

Judge:WADE

First Paragraph:

The defendant, John Jason Bakenhus, was indicted for aggravated arson,
two counts of arson, three counts of civil rights intimidation,
aggravated burglary, theft of property over five hundred dollars and
theft of property under five hundred dollars.  The jury returned
guilty verdicts on all nine counts.  The trial court imposed a Range
I, effective sentence of twenty-two and one-half years and ordered
restitution in excess of  $65,000.  The defendant was convicted for
the same acts in federal court.  The state and federal sentences are
to be served concurrently.

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

DAVID M. FARMER
vs.
STATE OF TENNESSEE,

Court:TCCA

Attorneys: 

For Appellant:                  For Appellee:

G. Kline Preston, IV            John Knox Walkup
Attorney                        Attorney General and Reporter
Washington Sq. Two, Ste 416
222 Second Avenue North         Clinton J. Morgan
Nashville, TN  37201            Counsel for the State                                   
                                425 Fifth Avenue North, Second Fl 
                                Cordell Hull Building 
                                Nashville, TN  37243-0493

                                James W. Milam
                                Asst District Attorney General
                                Washington Square, Suite 500
                                222 Second Avenue North 
                                Nashville, TN  37201                         

Judge:WADE

First Paragraph:

The petitioner, David M. Farmer, appeals from the trial court's denial
of his petition for post-conviction relief.  The issues presented for
review are whether the original sentence violated the due process
rights of the petitioner, whether the plea agreement violated the
terms of Rule 11(e)(3) of the Tennessee Rules of Criminal Procedure,
and whether the original, conditional sentence of six years, which was
later increased to ten years, qualified as an unlawful, indeterminate
sentence.

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

CAREY GILES FRALIX
vs.
STATE OF TENNESSEE

Court:TCCA

Judge:PEAY

First Paragraph:

This matter is before the Court upon the state's motion requesting
that the judgment in the above-styled cause be affirmed pursuant to
Rule 20, Tennessee Court of Criminal Appeals Rules.

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

STATE OF TENNESSEE
vs.
JOHN CHRISTOPHER JACKSON

Court:TCCA

Attorneys:

For Appellant:                      For Appellee:

Lionel R. Barrett, Jr.              John Knox Walkup
Attorney                            Attorney General and Reporter
Washington Sq. Two - Ste  417           
222 Second Avenue North             Lisa A. Naylor
Nashville, TN  37201                Assistant Attorney General
                                    Cordell Hull Building, Second Fl 
                                    Criminal Justice Division 
                                    425 Fifth Avenue North
                                    Nashville, TN  37243-0493

                                    Katrin Miller
                                    Asst District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue North 
                                    Nashville, TN  37201                          

Judge:WADE

First Paragraph:

The defendant, John Christopher Jackson, entered guilty pleas to six
counts of aggravated robbery accomplished with a deadly weapon and one
count of robbery.  Tenn. Code Ann. SS 39-13-401, -402.  A forgery
count was dismissed.  The trial court imposed a Range I sentence of
nine years for three of the aggravated robberies; these sentences were
ordered to be served consecutively.  Range I, eight-year sentences
were imposed on each of the remaining aggravated robberies and a
three-year sentence was imposed for the simple robbery; all of these
sentences were ordered to be served concurrently.  The effective
sentence is twenty-seven years.

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

STATE OF TENNESSEE
vs.
JOHN WILLIAM KUHLMAN

Court:TCCA

Attorneys: 

FOR THE APPELLANT:

JOHN WILLIAM KUHLMAN, Pro Se
341 Stable Drive
Franklin, TN  37064
FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

DARYL J. BRAND
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN  37243-0493

JOSEPH D. BAUGH, JR.
District Attorney General

JEFFREY P. BURKS
Assistant District Attorney General
Williamson County Courthouse
Suite G-6
P.O. Box 937
Franklin, TN  37065-0937                         

Judge:RILEY

First Paragraph:

The defendant, John William Kuhlman, was convicted by a Williamson
County jury of assault, the Class B misdemeanor.  The trial court
sentenced him to six (6) months in the county jail and approved the
jury's assessment of a fine of $2,500.  On appeal, defendant presents
several issues for our review, including:  (1) whether the evidence is
sufficient to support the jury's verdict; (2) whether the state proved
his sanity at the time of the offense; (3) whether his preliminary
hearing was held in violation of Tenn. R. Crim. P. 5; (4) whether the
trial court erred in refusing to strike hearsay evidence; and (5)
whether he was denied his right against self-incrimination when he was
compelled to testify at his sentencing hearing.  We affirm defendant's
conviction; however, because the jury imposed a fine that exceeds the
statutory maximum for a Class B misdemeanor, we remand so that a new
jury may be empaneled on the sole issue of fixing a fine.

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

STATE OF TENNESSEE
vs.
RICKY GENE WILKERSON,           
AND TINA LYNN WILKERSON

Court:TCCA
                         
Judge:SMITH

First Paragraph:

This matter is again before the Court upon the state's motion
requesting that the judgment in the above-styled cause be affirmed
pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules. 
Previously, this Court ordered that the appellants would have 10 days
to request that the trial court clerk certify and transmit a
supplemental record which included the final judgments.  The
supplemental record is now before the Court, and after reviewing the
pleadings and the entire record on appeal, we find that this is an
appropriate case for affirmance pursuant to Rule 20 and therefore,
grant the state's motion.

URL:http://www.tba.org/tba_files/TCCA/wilkers3_ord.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
JAMES CLAYTON YOUNG, JR.

Court:TCCA
                       
Judge:WITT

First Paragraph:

DISSENTING AND CONCURRING OPINION

Although I concur in the treatment of most issues and concur in the
remand for a new trial, I respectfully depart from the majority on the
issue of sufficiency of the evidence to support felony murder and the
somewhat related issue of the redaction of the defendant's pretrial
statement.  For the reasons explained below, I would dismiss the
felony murder charge and remand for retrial as to second-degree
murder.

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

STATE OF TENNESSEE
vs.
JAMES CLAYTON YOUNG, JR.

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

R. STEVEN WALDRON           JOHN KNOX WALKUP
TERRY A. FANN               Attorney General & Reporter
202 West Main St.                   
Murfreesboro, TN  37130     DARYL J. BRAND
                            Assistant Attorney General
                            Criminal Justice Division
                            450 James Robertson Parkway
                            Nashville, TN  37243-0493   

                            WILLIAM C. WHITESELL, JR.
                            District Attorney General
                            303 Rutherford County Judicial Bldg.
                            Murfreesboro, TN  37130
                          

Judge:WADE

First Paragraph:

The defendant, James Clayton Young, was convicted of felony murder, a
Class A felony.  The trial court imposed a life sentence.  The grand
jury had returned a three-count indictment that included charges of
deliberate and premeditated murder, felony murder in the perpetration
of a rape or an attempted rape, and unlawful disposal of a corpse. 
The defendant pled guilty to the unlawful disposal of a corpse and
received a one-year sentence to be served concurrently with the life
sentence for felony murder.  Neither that conviction nor the sentence
is at issue in this appeal.  The trial judge granted the defendant's
motion for judgment of acquittal on the first degree murder charge and
had instructed the jury on second degree murder, voluntary
manslaughter, reckless homicide, and criminally negligent homicide.

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

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