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TBALink Opinion-Flash
July 24, 1998 -- Volume #4 -- Number #107
What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.
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- 01-New Opinons From TSC-Workers Comp Panel
- 05-New Opinons From TCA
- 03-New Opinons From TCCA
- 03-New Opinons From TSC
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Lucian T. Pera
Editor-in-Chief, TBALink
FRANCES BLANCHARD vs. ARLENE KELLUM, D.D.S. Court"TSC Attorneys: FOR APPELLANT: FOR APPELLEE: TIMOTHY A. RYAN III GEORGE P. BAILEY MEMPHIS MEMPHIS Judge: HOLDER First Paragraph: This case arose out of a petition for order of contempt filed in this Court by the Board of Professional Responsibility against John Mark Hancock. The petition alleged that Hancock violated an order of suspension previously entered by this Court by failing to comply with Tenn. Sup. Ct. R. 9, S 18, which requires a suspended attorney to notify clients of an order of suspension, move for withdrawal from pending cases, provide notice to adverse attorneys when clients have not obtained substitute counsel, and refrain from taking new cases. URL:http://www.tba.org/tba_files/TSC/blanchaf_opn.WP6
WILLIAM J. CHASE, JR., AS ADMINISTRATOR C.T.A.
OF THE ESTATE OF BETTY LOU STIDHAM, DECEASED
vs.
THE CITY OF MEMPHIS
Court"TSC
Attorneys:
FOR DEFENDANT/APPELLANT/ FOR PLAINTIFF/APPELLEE/CROSS-
CROSS-APPELLEE: APPELLANT:
Robert M. Fargarson John J. Heflin III
Martin W. Zummach Memphis
Memphis
OF COUNSEL: FOR INTERVENOR, STATE OF
Monice Moore Hagler TENNESSEE:
Memphis
John Knox Walkup
Attorney General and Reporter
Meredith DeVault
Senior Counsel, Civil Rights and
Claims Division
Judge: HOLDER
First Paragraph:
This case involves a tort action against the defendant, City of
Memphis, arising out of a woman's death when she was mauled by two pit
bull dogs. The Court of Appeals held that the City was immune under
the Governmental Tort Liability Act ("GTLA") but removed the immunity
pursuant to the common law special duty exception to the public duty
doctrine. The issues with which we are now confronted are whether:
(1) the City animal shelter's failure to follow-up on an order
requiring the owner of the dangerous dogs to enroll his dogs in
obedience school was immune under the GTLA as a discretionary act or
omission; and (2) whether the public duty doctrine's special duty
exception can be employed to remove immunity conferred under the GTLA.
We hold that the City's actions or inactions in this case were not
immune under the GTLA and that the special duty exception to the
public duty doctrine cannot be employed to remove immunity conferred
under the GTLA. The decision of the Court of Appeals is reversed.
URL:http://www.tba.org/tba_files/TSC/chasewj_opn.WP6
IN RE: JOHN MARK HANCOCK
Court"TSC
Attorneys:
For John Mark Hancock: For Board of Professional
Ralph E. Harwell Responsibility:
RALPH E. HARWELL, P.C. William W. Hunt, III
Knoxville, Tennessee Disciplinary Counsel
Nashville, Tennessee
Judge: ANDERSON
First Paragraph:
This case arose out of a petition for order of contempt filed in this
Court by the Board of Professional Responsibility against John Mark
Hancock. The petition alleged that Hancock violated an order of
suspension previously entered by this Court by failing to comply with
Tenn. Sup. Ct. R. 9, S 18, which requires a suspended attorney to
notify clients of an order of suspension, move for withdrawal from
pending cases, provide notice to adverse attorneys when clients have
not obtained substitute counsel, and refrain from taking new cases.
URL:http://www.tba.org/tba_files/TSC/hancockj_opn.WP6
BRODERICK KELSEY
vs.
KRAFT FOOD SERVICES, INC.
and TRAVELERS INDEMNITY
COMPANY OF ILLINOIS
Court"TSC - Workers Comp Panel
Attorneys:
For Appellants: For Appellee:
Robert J. Uhorchuk John D. McMahan
Thomas E. LeQuire G. Brent Burks
Spicer, Flynn & Rudstrom McMahan & Associates
Chattanooga, Tennessee Chattanooga, Tennessee
Judge: Loser
First Paragraph:
The appellants contend the trial court's award of benefits based on
six times the medical impairment rating is excessive. The appellee
contends the award is inadequate because the chancellor erred in
"finding three of the four factors listed under Tenn. Code Ann.
section 50-6-242 were not proven by clear and convincing evidence" and
that the award of benefits based on forty-two percent to the body as a
whole is inadequate. The appellee also contends the chancellor erred
in failing to award its vocational expert's fee as discretionary
costs. As discussed below, the panel has concluded the judgment
should be affirmed.
URL:http://www.tba.org/tba_files/TSC_WCP/kelsvkra_doc.WP6
SUPREME COURT OF TENNESSEE
STATE LIST FOR PERMISSION TO APPEAL
July 20, 1998
Court"TSC - Rules
URL:http://www.tba.org/tba_files/TSC_Rules/statelist35_doc.WP6
PATRICIA P. ASHE
vs.
RADIATION ONCOLOGY ASSOCIATES
and STEVEN L. STROUP, M.D.
Court"TCA
Attorneys:
DAVID RANDOLPH SMITH ROBERT BLAKE MENZEL David Randolph Smith &
Associates Nashville, Tennessee 37203 ATTORNEYS FOR
PLAINTIFF/APPELLANT
THOMAS A. WISEMAN, III NationsBank Plaza, Suite 1900 414 Union Street
Nashville, Tennessee 37219-1782 ATTORNEY FOR DEFENDANTS/APPELLEES
Judge: CAIN
First Paragraph:
This case was tried before a jury in the Circuit Court in Davidson
County on two issues to-wit: (1) informed consent and (2)
professional negligence. On the issue of informed consent the trial
court directed a verdict for the defendant at the conclusion of the
plaintiff's proof. On the issue of professional negligence a mistrial
was declared when the jury was unable to agree on a verdict. The case
is now before this court on the sole issue of informed consent.
URL:http://www.tba.org/tba_files/TCA/ashep_opn.WP6
EARNESTINE COLE
vs.
STATE OF TENNESSEE
Court"TCA
Attorneys:
William B. Raiford, III; Merkel & Cocke, P.A. of Clarksdale,
Mississippi For Appellant
Beauchamp E. Brogan, General Counsel JoAnn C. Cutting, Assistant
General Counsel For Appellee
Judge: CRAWFORD
First Paragraph:
This is a medical malpractice case tried by the Tennessee Claims
Commission. Claimant/Appellant Earnestine Cole (Cole) appeals from
the judgment of the Claims Commission for Defendant/Appellee State of
Tennessee. Cole filed this complaint alleging that she had a tubal
ligation and sterilization performed while a patient at the Regional
Medical Center in Memphis, Tennessee. She avers that she was under
the care and treatment of Dr. Lynn Ware, a medical resident employee
of the State of Tennessee at the University of Tennessee School of
Medicine, who was under the supervision of Dr. Bertram Buxton, a
professor at the university. Cole essentially alleges that the
defendant, State of Tennessee, through its employees, breached the
recognized standard of acceptable professional practice in its medical
treatment, thus resulting in her becoming pregnant after the operation
was performed.
URL:http://www.tba.org/tba_files/TCA/coleerne_opn.WP6
RONALD COLLIER
vs.
TENNESSEE DEPARTMENT OF CORRECTION, ET AL.
Court"TCA
Attorneys:
Ronald Collier, #74897 TCIP, U5B103 Route 1 Only, Tennessee 37140-9709
PRO-SE FOR PLAINTIFF/APPELLANT
JOHN KNOX WALKUP Attorney General and Reporter
MICHAEL E. MOORE Solicitor General
SOHNIA W. HONG, BPR #17415 Civil Rights and Claims Division 2nd Floor,
Cordell Hull Building 425 5th Avenue North Nashville, Tennessee 37243
ATTORNEYS FOR DEFENDANTS/APPELLEES
Judge: TODD
First Paragraph:
The captioned prisoner confined in the punitive custody of the
Tennessee Department of Correction filed in the Trial Court a
"Petition for Declaratory Judgment," naming as defendants the
Department, its Commissioner and W. G. Lachie, Legal Assistant. The
latter individual is identified by the petition as a legal assistant
to "the defendant."
URL:http://www.tba.org/tba_files/TCA/collierr_opn.WP6
ROBERT L. DeLANEY
vs.
BROOK K. THOMPSON, et al.
Court"TCA
Attorneys:
For Plaintiff/Appellee: For Defendants/Appellants:
Robert L. DeLaney John Knox Walkup
Nashville, Tennessee Attorney General and Reporter
Michael E. Moore
Solicitor General
Michael W. Catalano
Associate Solicitor General
For Amicus Curiae
American Judicature Society:
Harris A. Gilbert
Patricia J. Cottrell
Barry Friedman
Wyatt, Tarrant & Combs
Nashville, Tennessee
Judge: RUSSELL
First Paragraph:
This is an expedited appeal before a special panel of the Middle
Section of the Tennessee Court of Appeals sitting in Nashville. The
subject matter is the constitutional validity of the Tennessee Plan
for the selection and retention of state judges as established by the
General Assembly and documented in T.C.A. Secs. 17-4-101, et seq.
URL:http://www.tba.org/tba_files/TCA/delaneyr_opn.WP6
JAMES DAVID GATLIN
vs.
DEANNA E. GATLIN
Court"TCA
Attorneys:
For the Plaintiff/Appellant: For the Defendant /Appellee:
David M. Livingston Deanna E. Gatlin, Pro Se
Brownsville, Tennessee Trenton, Tennessee
For the Minor Child, William James
Nathan Melton:
Jerald M. Campbell, Jr.
Trenton, Tennessee
Judge: LILLARD
First Paragraph:
This is a paternity case. The mother and father married after the
child was born, and later divorced. In the divorce decree, the father
was ordered to pay child support. The father later sought to set
aside the order of child support and requested parentage testing. The
trial court denied the father's petition, and he appealed. We affirm.
URL:http://www.tba.org/tba_files/TCA/gatlinjd_opn.WP6
STATE OF TENNESSEE
vs.
BRYAN E. BASTEL
Court"TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Edward Witt Chandler John Knox Walkup
Attorney at Law Attorney General & Reporter
2502 Mt. Moriah Rd., # A100
Memphis, TN 38115 Marvin E. Clements, Jr.
Assistant Attorney General
Criminal Justice Division
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243
William L. Gibbons
District Attorney General
Lee Coffee
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103
Judge: SUMMERS
First Paragraph:
Originally charged with aggravated assault, the appellant, Bryan
Bastel, pled guilty to assault in the Shelby County Criminal Court.
The court denied the appellant's petition for a suspended sentence and
sentenced him to serve thirty days in the Shelby County Correctional
Center. He appeals. The sole issue for our review is whether the
trial court erred in denying an alternative sentence. We affirm the
judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/bastelbr_opn.WP6
STATE OF TENNESSEE
vs.
MICHAEL BENSON
Court"TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Guy T. Wilkinson John Knox Walkup
Public Defender Attorney General & Reporter
Richard DeBerry Douglas D. Himes
Assistant Public Defender Assistant Attorney General
605 Court Street, Suite 3 425 Fifth Avenue North
Savannah, TN 38372 Nashville, TN 37243-0493
Robert "Gus" Radford
District Attorney General
John Overton
Assistant District Attorney General
P.O. Box 484
Savannah, TN 38372
Judge: SUMMERS
First Paragraph:
The appellant, Michael Benson, appeals his sentence of six years for
the killing of his brother-in-law, Donnie Ray Qualls. On June 4,
1997, the appellant pled guilty to voluntary manslaughter pursuant to
a negotiated plea agreement and received a six-year sentence as a
Range I, standard offender. A sentencing hearing was held on August
4, 1997, and the trial court denied the appellant's request for an
alternative sentence. He was ordered to serve his sentence in
confinement. The appellant's sole issue on appeal is whether the trial
court erred by denying him probation. We affirm the appellant's
sentence.
URL:http://www.tba.org/tba_files/TCCA/bensonmi_opn.WP6
STATE OF TENNESSEE
vs.
MELVIN BOYD, JR.
Court"TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
G. STEPHEN DAVIS JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
P. O. Box 742
Dyersburg, TN 38025-0742 GEORGIA BLYTHE FELNER
Asst. Attorney General
John Sevier Bldg.
425 Fifth Ave., North
Nashville, TN 37243 0493
C. PHILLIP BIVENS
District Attorney General
P. O. Drawer E
Dyersburg, TN 38024
Judge: PEAY
First Paragraph:
ollowing a jury trial, the defendant was found guilty of driving after
having been declared a motor vehicle habitual offender pursuant to
T.C.A. S 55-10 616. The trial court sentenced him to two years in the
Tennessee Department of Correction. He now appeals as of right,
challenging the sufficiency of the evidence to support his conviction
and arguing that the trial court erred in failing to consider and
order an alternative sentence. Finding no merit in the defendant's
arguments, we affirm his conviction and sentence.
URL:http://www.tba.org/tba_files/TCCA/boydmjr_opn.WP6
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