TBALink Opinion-Flash

August 19, 1998 -- Volume #4 -- Number #121

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.

This Issue (IN THIS ORDER):
00-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
11-New Opinons From TCA
00-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.

Lucian T. Pera
Editor-in-Chief, TBALink



DOROTHY BALES
vs.     
RENEE BALES SNYDER,
DONNA BALES STEPP, and
ANTHONY BALES 

Court:TCA

Attorneys:

JIM W. STAMBAUGH OF MORRISTOWN FOR APPELLANT

R. DAVID BENNER OF KNOXVILLE FOR RENEE BALES SNYDER and DONNA BALES
STEPP

KELLEY HINSLEY OF MORRISTOWN FOR ANTHONY BALES                          

Judge:Goddard

First Paragraph:

This is a suit by Plaintiff-Appellant Dorothy Bales against
Defendants-Appellees Renee Bales Snyder, Donna Bales Stepp and Anthony
Bales.  Ms. Snyder and Ms. Stepp are her step children, being the
daughters by a prior marriage of her deceased husband, Donnie Bales. 
Anthony Bales, who is a minor 14 years old and is represented by a
guardian ad litem, is the son of Donnie Bales and Dorothy Bales.

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

WILLIAM ROSS ALLEN BRITTON
vs.
PENNY JEAN BRITTON

Court:TCA

Attorneys:

For Appellant                   For Appellee

DAVID L. LEONARD                K. KIDWELL KING
Leonard & Kershaw               King & King
Greeneville, Tennessee          Greeneville, Tennessee                          

Judge:Susano

First Paragraph:

In this post-divorce proceeding, the trial court modified the parties'
1994 divorce judgment by awarding William Ross Allen Britton
("Father") custody of Cody Allen Britton (DOB:  June 21, 1991) and
Mariah Cheyenne Britton (DOB: January 27, 1993).  The divorce judgment
had placed the children's custody with Penny Jean Britton ("Mother")
based upon the parties' marital dissolution agreement.  Mother
appealed the modification order, contending that there had not been a
change in circumstances since the divorce such as to warrant a change
of custody.

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

JEANNIE FARROW
vs.
CARL R. OGLE, JR.

Court:TCA

Attorneys:

LARRY C. VAUGHAN OF KNOXVILLE FOR APPELLANT

CARL R. OGLE, JR., Pro Se                          

Judge:Goddard

First Paragraph:

In this legal malpractice suit, Jeannie Farrow appeals a summary
judgment rendered against her in favor of Carl R. Ogle, Jr., on the
ground that her claim was barred by the applicable statute of
limitations.  Ironically, the underlying suit which gave rise to the
present litigation was one for personal injuries filed by Mr. Ogle on
behalf of Mrs. Farrow and was also dismissed because it was barred by
the statute of limitations.

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

ED FRAZIER
vs.
COCKE COUNTY BEER BOARD,
WILLIAM HAL CUTSHAW, AND
JOHNNIE ARTHUR STYLES,
d/b/a AMOCO EXPRESS

Court:TCA

Attorneys:

JOHN B. BUNNELL, Newport, for Plaintiff-Appellant.

CLYDE A. DUNN, Newport, for Defendants-Appellees.                          

Judge:Franks

First Paragraph:

Plaintiff filed his complaint as "Petition for Writ of Certiorari in
Granting Package and Beer Sales License" on June 16, 1997, and charged
"that defendant Cocke County Beer Board improperly granted a package
beer permit to defendants . . . on or about October 7, 1996, in
Newport, Cocke County, Tennessee, contrary to Tennessee Code Annotated
S57-5-105(b)(1)."  Responding to a Motion to Dismiss, the Trial Judge
held:  The petition for certiorari filed by the plaintiff was not
filed within the sixty day time period prescribed by T.C.A. S27-9-102,
and, further, it appearing to the Court that the permitees no longer
have a beer permit issued by Cocke County, Tennessee, but, to the
contrary, have a beer permit issued from the City of Newport, the
issues are rendered moot.  Accordingly, the complaint is dismissed. .
. .  The Beer Board's actions are judicially reviewed by a statutory
writ of certiorari, which is "the sole remedy and exclusive method of
review of any action or order. . . ."  T.C.A. S57-5-108 and 109.  The
procedure for this right of review is established in T.C.A. S27-9-101
et seq., and T.C.A. S27-9-102 provides in pertinent part that
petitioner "shall, within sixty (60) days from the entry of the order
or judgment, file a petition of certiorari in the Chancery Court . . .
."

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

ERNEST LEON FRIZZELL
vs.
RAYMOND LEON FRIZZELL

Court:TCA

Attorneys:

For Appellant                   For Appellee

HOWARD B. BARNWELL, JR.         ROBERT D. BRADSHAW
Chattanooga, Tennessee          B. STEWART JENKINS
                                Jenkins & Bradshaw, P.C.
                                Chattanooga, Tennessee                          

Judge:Susano

First Paragraph:

The plaintiff, Ernest Leon Frizzell ("Father"), seeks damages for the
breach of an alleged oral agreement with his son, the defendant,
Raymond Leon Frizzell ("Son").  Following a bench trial, the court
entered judgment against Son for $32,500.  Son appealed, raising a
number of issues that essentially present three issues for our review:
1.  Is the claim set forth in the complaint -- based, as it is, on an
oral agreement -- barred by the statute of frauds, specifically T.C.A.
S 29-2-101(a)(4)? 2.  Does the oral agreement upon which the plaintiff
relies violate the parol evidence rule? 3.  Does the evidence
preponderate against the trial court's judgment?

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

PAUL EDWARD HENRY, et ux,
ELIZABETH ANN HENRY
vs.
NOVA, INC

Court:TCA

Attorneys:

DONALD E. OVERTON and GLENNA W. OVERTON, OVERTON & OVERTON, Knoxville,
for Plaintiffs-Appellants.

BEECHER A. BARTLETT, JR., KRAMER, RAYSON, LEAKE, RODGERS & MORGAN,
Knoxville, for Defendant-Appellee.

Judge:Franks

First Paragraph:

In this action, plaintiffs sued defendant for "money damages" on the
grounds of "misrepresentation, mutual mistake, breach of warranty and
negligence regarding the purchase of a new residence" from defendant. 
The recision of the sale was also sought.

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

VIRGINIA LAMBERT, SUPERIOR 
HOME HEALTH CARE OF MIDDLE
TENNESSEE, INC., and LEGION
INSURANCE COMPANY
vs.
INVACARE CORPORATION and
NATIONAL MEDICAL EQUIPMENT OF
THE SOUTHEAST, INC.

Court:TCA

Attorneys:

For Appellant Virginia Lambert      For Appellee Invacare Corp.

SONYA W. HENDERSON                  SAMUEL L. FELKER
Thomas, Henderson & Pate            JOHN C. HAYWORTH
Murfreesboro, Tennessee             Bass, Berry & Sims, P.L.C.
                                    Nashville, Tennessee

For Appellants Superior Home        For Appellee National Medical
Health Care of Middle Tennessee,    Equipment of the Southeast,    
Inc. and Legion Insurance Company   Inc.

JOHN THOMAS FEENEY                  KENNETH R. STARR
Feeney & Lawrence, P.L.L.C.         Starr & Daniell, P.C.
Nashville, Tennessee                Chattanooga, Tennessee                          

Judge:Susano

First Paragraph:

Plaintiff Virginia Lambert ("Lambert") was injured on August 22, 1995,
while in the course and scope of her employment with the plaintiff
Superior Home Health Care of Middle Tennessee, Inc. ("Superior"). 
Lambert's injuries occurred while she was using a mechanical lift
manufactured by defendant Invacare Corporation ("Invacare") and leased
to Superior by defendant National Medical Equipment of the Southeast,
Inc. ("National").  As Lambert was transferring a patient from a chair
to a bed, one of the lift's wheels came off, forcing Lambert to bear
the patient's weight and causing an injury to her back.  As a result,
Lambert received workers' compensation benefits, which were paid on
behalf of Superior by the plaintiff Legion Insurance Company
("Legion").

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

HEATHER MARIE LONG
vs.
ROBERT DEAN CROXDALE

Court:TCA

Attorneys: 

ROBERT R. SIMPSON, Eshbaugh, Simpson and Varner, Knoxville, for
Appellant.

JIM W. STAMBAUGH, Stambaugh Law Office, Morristown, for Appellee.                         

Judge:McMurray

First Paragraph:

This is a child custody case.  Heather Long (mother) and Robert
Croxdale (father) each filed a petition seeking full custody, or in
the alternative, primary residential custody of their son, Travis Dean
Croxdale, who was born April 27, 1993.  The trial court awarded
primary custody to the father, with the mother having physical custody
during two months in the summer.  The mother appeals, asserting that
the court should have awarded her primary custody.  We affirm the
judgment of the trial court.

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

JAMES ODOM, SR.
vs.
CITY OF CHATTANOOGA, TENNESSEE

Court:TCA

Attorneys:

For Appellant                   For Appellee

ROBERT D. BRADSHAW              LAWRENCE W. KELLY
Jenkins & Bradshaw, P.C.        PHILLIP A. NOBLETT
Chattanooga, Tennessee          Chattanooga, Tennessee                          

Judge:Susano

First Paragraph:

The plaintiff, James Odom, Sr. ("Odom"), sued the City of Chattanooga
("the City") under the Tennessee Governmental Tort Liability Act
("GTLA"), seeking damages for injuries suffered in the course of his
employment with the City's Department of Public Works.  Odom alleges
that he suffered a back and wrist injury as a result of his extended
use of a jackhammer and the performance of other strenuous labor
without the aid of proper equipment.  Following a bench trial, the
trial court found in favor of the City and dismissed the case.  Odom
appealed, raising issues that present the following questions for our
review: 1.  Does the evidence preponderate against the trial court's
finding that the plaintiff failed to prove that the City violated
various training provisions and the general duty clause of the
Tennessee Occupational Safety and Health Act of 1972?  2.  Does the
evidence preponderate against the trial court's finding that the
plaintiff failed to prove that the City violated its Personnel
Ordinances?  3.  Was the City's decision to place its limited number
of backhoes on certain projects to the exclusion of others a
discretionary function so as to preserve the City's immunity from suit
based on the plaintiff's claim that he was injured because he was
doing work that should have been performed by a backhoe?

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

JERRY W. RAGON and JERRY    
LEBRON RAGON, a Partnership
d/b/a ACTION LINEN SERVICE
vs.
O'CHARLEY'S, INC.

Court:TCA

Attorneys: 

ROBERT D. BRADSHAW and B. STEWART JENKINS, JENKINS & BRADSHAW, P.C.,
Chattanooga, for Plaintiffs-Appellees.

JOHN G. JACKSON, CHAMBLISS, BAHNER & STOPHEL, Chattanooga, for
Defendant-Appellant.

Judge:Franks

First Paragraph:

In this breach of contract action for damages, the jury returned
special verdicts in plaintiffs' favor, and the Chancellor entered a
judgment for damages against defendant.  Defendant has appealed.  The
issues on appeal raised by defendants are:  1.  Whether the
Chancellor erred in not sustaining O'Charley's objection to defective
verdict, or in the alternative in not granting a new trial, as the
jury's verdict was inconsistent and contrary to the manifest weight of
the evidence?  II.  Whether in the alternative, the Chancellor erred
in refusing to suggest a remittitur, as the jury's award of damages
was excessive and contrary to the manifest weight of the evidence? 
III.    Whether the Chancellor erred in failing to grant O'Charley's
motion in limine, and/or for directed verdict on the alleged Hixson
contract.  As the proof clearly showed, the plaintiff destroyed and
rescinded a copy of the alleged contract with the intent to release
O'Charley's from any obligation it may have had under the alleged
contract?

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

WANDA GAIL REVELS (KIRK)
vs.
L. E. REVELS, JR.

Court:TCA

Attorneys:

MITCHELL A. BYRD OF CHATTANOOGA FOR APPELLANT

JOHN R. MORGAN OF CHATTANOOGA FOR APPELLEE                          

Judge:Goddard

First Paragraph:

Responding to a motion pursuant to T.C.A. 26-2-216 relative to
installment payments to stay garnishments, the Trial Court ordered L.
E. Revels to pay the sum of $250 per month on a judgment previously
rendered against him in the amount of $39,508.50, which represented
his delinquency as to alimony payments.

URL:http://www.tba.org/tba_files/TCA/revelsw_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