TBALink Opinion-Flash

October 19, 1998 -- Volume #4 -- Number #149

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):
05-New Opinion(s) from the Tennessee Supreme Court
01-New Opinion(s) from the Tennessee Supreme Court Workers Comp Panel
00-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
09-New Opinion(s) from the Tennessee Court of Appeals
01-New Opinion(s) from the Tennessee Court of Criminal Appeals
00-New Judicial Ethics Opinion(s)
00-New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Editor-in-Chief, TBALink



STATE OF TENNESSEE
VS.
WILLIAM E. HALL AND DERRICK D. QUINTERO

Court:TSC

Judge:DROWOTA

First Paragraph:

A petition for rehearing has been filed on behalf of the appellants. 
After consideration of the same, a majority of the Court is of the
opinion that the petition should be and the same is hereby denied at
the cost of appellant.

URL:http://www.tba.org/tba_files/TSC/hall&qui_prh.WP6
Opinion-Flash

DENNIS R. KINZIG
VS.
JERRY ARINO

Court:TSC                          

Judge:PER CURIAM

First Paragraph:

We granted the appellant's Rule 10 Application for Extraordinary
Appeal in order to review the decision of the Middle Section of the
Court of Appeals.  After due consideration of the briefs, applicable
authority, and oral argument of the parties, we conclude that the
appeal was improvidently granted.  It is, therefore, ORDERED that the
appeal is hereby dismissed at costs to the appellant for which
execution may issue if necessary.

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

JABARI ISSA MANDELA
VS.
DONAL CAMPBELL, COMMISSIONER, THE TENNESSEE DEPARTMENT OF
CORRECTION

LUTHER DAVIS
VS.
JIM ROSE, ASSISTANT COMMISSIONER OF THE
TENNESSEE DEPARTMENT OF CORRECTION; KEVIN MYERS,
WARDEN; AND RUSTY HARVILLE, DISCIPLINARY BOARD CHAIRMAN

Court:TSC

Attorneys: 

FOR APPELLANTS MANDELA AND      FOR APPELLEES CAMPBELL, ROSE,
DAVIS:                          MYERS AND HARVILLE:

FRANK J. SCANLON                JOHN KNOX WALKUP
MATTHEW A. BOYD                 ATTORNEY GENERAL AND REPORTER
Nashville
                                MICHAEL E. MOORE
                                SOLICITOR GENERAL
FOR AMICUS CURIAE, CORRECTIONS
CORPORATION OF AMERICA:         MICHAEL W. CATALANO
                                ASSOCIATE SOLICITOR GENERAL
WILLIAM B. HUBBARD              Nashville
Nashville

                                FOR APPELLEES MYERS AND 
                                HARVILLE:

                                TOM ANDERSON
                                Lexington                         

Judge:HOLDER

First Paragraph:

We granted this consolidated appeal to address the following important
issues:  (1)  whether the Department of Correction's disciplinary
policy # 9502.01 improperly delegates responsibility of prison
discipline to a private contractor; and (2)  whether the Department of
Correction's disciplinary policies are "rules" within the ambit of the
Uniform Administrative Procedures Act.  We have carefully reviewed the
relevant statutes, law, and the parties' briefs.  We hold that policy
# 9502.01 is not an improper delegation and that the disciplinary
policies before us are not "rules" within the ambit of the Uniform
Administrative Procedures Act.  Tenn. Code Ann. S 4-5-102(10).  The
appellants' claims are dismissed.

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

STATE OF TENNESSEE
VS.
GUSSIE WILLIS VANN

Court:TSC

Judge:DROWOTA

First Paragraph:

A petition for rehearing has been filed on behalf of appellant.  After
consideration of the same, a majority of the Court is of the opinion
that the petition should be and the same is hereby denied at the cost
of appellant.

Justice Birch and Special Justice Reid adhere to the views expressed
in their original dissenting opinion.

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

STATE OF TENNESSEE
VS.
WILLIE WILLIAMS, JR.

Court:TSC

Judge:DROWOTA

First Paragraph:

A petition for rehearing has been filed on behalf of the appellants. 
After consideration of the same, a majority of the Court is of the
opinion that the petition should be and the same is hereby denied at
the cost of appellant.

Justice Birch and Special Justice Reid adhere to the views expressed
in their original dissenting opinion.

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

SHIRLEY J. MYERS
VS.
"CLASSIC EXPRESS" INCORPORATED and GUARANTEE
AND LIABILITY INS. CO.

Court:TSC - Workers Comp Panel

Attorneys:   

For the Appellants:             For the Appellee:

Robert J. Uhorchuk              Charles C. Guinn, Jr.
Suite 407 James Building        #4 Washington Avenue
735 Broad Street                P.O. Box 946
Chattanooga, TN  37402          Athens, TN  37371-0946                       

Judge:BYERS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. Review of
the findings of fact made by the trial court is de novo upon the
record of the trial court, accompanied by a presumption of the
correctness of the findings, unless the preponderance of the evidence
is otherwise.  Tenn. Code Ann.  S 50-6-225(e)(2); Stone v. City of
McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995). The application of this
standard requires this Court to weigh in more depth the factual
findings and conclusions of the trial court in a workers' compensation
case.  See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456
(Tenn. 1988). The trial court awarded the plaintiff death benefits for
her husband's death, which he found arose out of and in the course of
his employment with the defendant. The defendant appeals and raises
the following issue: "Whether the trial court erred in its finding of
compensability and awarding employee's wife death benefits for a heart
attack sustained by employee?"

We find the trial court did not err in awarding the plaintiff death
benefits and affirm the judgment of the trial court.

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

SUSAN MANQUELLA ADAMS
VS.
EARNIE BRYAN ADAMS

Court:TCA

Attorneys: 

Randle W. Hill, Jr., #12113
329 Union Street
P.O. Box 190632
Nashville, Tennessee 37219-0632
ATTORNEYS FOR PLAINTIFF/COUNTER-DEFENDANT/APPELLANT

Robert L. Jackson, #2486
ROBERT L. JACKSON & ASSOCIATES
214 Second Avenue, North
Suite 103
Nashville, Tennessee 37201
ATTORNEY FOR DEFENDANT/COUNTER-PLAINTIFF/APPELLEE                         

Judge:TODD

First Paragraph:

Susan Manquella Adams, hereafter referred to as the wife, has appealed
from the judgment of the Trial Court declaring her and her husband,
Earnie Bryan Adams, to be divorced, awarding joint custody of two
children with alternating physical custody in each parent, and
providing for child support and other incidentals.

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

LARRY B. FOX
VS.
CITY OF DOVER and HEATH B. STEVENS

Court:TCA

Attorneys:  

William H. Poland, BPR #5818
POLAND & POLAND
408 Franklin Street
Clarksville, Tennessee 37040
ATTORNEY FOR PLAINTIFF/APPELLANT

Gregory P. Patton, BPR #14984
HURT, PATTON & PEAY, P.L.C.
308 South Second Street
Clarksville, Tennessee 37040
ATTORNEY FOR DEFENDANTS/APPELLEES                        

Judge:TODD

First Paragraph:

The plaintiff, Larry B. Fox, has appealed from a partial final
judgment dismissing the defendant, Heath B. Stevens, and Tennessee
Farmers Mutual Insurance Company, plaintiff's uninsured motorist
insurer, pursuant to T.R.C.P. Rule 54.02.

Plaintiff presents the following issue: Whether the ninety (90) day
period specified in T.C.A. S 20-1-119 9 is tolled until a defendant
pleads his affirmative defense of comparative fault in accordance with
T.R.C.P. 8.03.

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

PATRICIA HITCHCOCK IRWIN
VS.
DON JEWELL IRWIN

Court:TCA

Attorneys: 

Larry H. Hagar, #11275
Stan Davis, #18618
214 Third Avenue, North
Nashville, Tennessee 37201
ATTORNEYS FOR PLAINTIFF/APPELLEE

Helen S. Rogers
SunTrust Building, Suite 1550
201 Fourth Avenue, North
Nashville, Tennessee 37219
ATTORNEY FOR DEFENDANT/APPELLANT                         

Judge:TODD

First Paragraph:

In this divorce case the husband has appealed from the judgment of the
Trial Court which declared the parties to be divorced on grounds of
irreconcilable differences, awarded joint custody of their minor child
to the parties with principal custody in the wife, and divided the
marital estate.

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

LIFETIME BOOKS, INC. Successor in Interest to FELL PUBLISHERS, INC.
VS.
THOMAS NELSON PUBLISHERS, INC.

Court:TCA

Attorneys:  

NORMAN GILLIS
NORMAN GILLIS & ASSOCIATES
713 18th Avenue South
Nashville, Tennessee 37203
    Attorney for Plaintiff/Appellant

JAY S. BOWEN
TIMOTHY L. WARNOCK
SARAH W. ANDERSON
GREGORY S. REYNOLDS
OWEN RILEY WARNOCK & JACOBSON, PLC
1906 West End Avenue
Nashville, Tennessee 37203
    Attorneys for Defendant/Appellee                        

Judge:CANTRELL

First Paragraph:

This appeal involves an interpretation of a "first refusal" provision
in a publishing contract.  The Circuit Court of Davidson County
dismissed an action claiming that the publisher breached the
provision.  We affirm.

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

RONNIE POOL and LINDA PARKS, Co-Administrators for the Estate of  
NATHAN POOL, and as next of kin of Nathan Pool
VS.
STATE OF TENNESSEE

Court:TCA

Attorneys: 

For the Plaintiffs/Appellants:          For the Defendant/Appellee:

Robert S. Peters                        John Knox Walkup
SWAFFORD, PETERS & PRIEST               Attorney General and Reporter
Winchester, Tennessee
                                        Michael Moore
                                        Solicitor General

                                        Kimberly J. Dean
                                        Deputy Attorney General                         

Judge:KOCH

First Paragraph:

This appeal involves the death of a motorist whose vehicle was swept
off a flooded highway bridge during a torrential rainfall.  The
administrators of the motorist's estate filed a claim with the
Tennessee Claims Commission asserting that state highway officials
knew or should have known about the flooded condition on the bridge
and negligently failed either to avert the flooding on the bridge or
to warn motorists of the bridge's unsafe condition.  Following an
evidentiary hearing, the claims commissioner entered judgment for the
State because the claimants had failed to prove that the state
employees had sufficient notice of the bridge's dangerous condition to
enable them to close the bridge to the public.  The administrators of
the motorist's estate assert on this appeal that the evidence does not
support the claims commissioner's decision.  We affirm the claims
commissioner's dismissal of the claim.

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

PENELOPE LYNN RAYBURN
VS.
GREGORY SHANE RAYBURN

Court:TCA

Attorneys:   

JERRY W. HAMLIN
110 Frey Street
Ashland City, Tennessee 37015
    Attorney for Plaintiff/Appellant

STEVE D. GIBSON
112 S. Main Street
Ashland City, Tennessee 37015
    Attorney for Defendant/Appellee                       

Judge:CANTRELL

First Paragraph:

The trial court granted the husband an absolute divorce and gave him
custody of the parties' three children.  The wife argues on appeal
that the trial court erred by determining the issue of child custody
without considering the mandatory statutory factors found in Tenn.
Code Ann. S 36-6-106.  We affirm the trial court.

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

MARY P. SOLIMA
VS.
DAVID J. SOLIMA

Court:TCA

Attorneys:    

For Plaintiff/Appellee:         For Defendant/Appellant:

Edward P. Silva                 Mike W. Binkley
Hartzog, Silva & Davies         Nashville, Tennessee
Franklin, Tennessee                      

Judge:KOCH

First Paragraph:

This appeal involves a bitter change of custody proceeding.  Two years
after the divorce, the father filed a petition in the Chancery Court
for Williamson County seeking  custody of three of the parties' five
children on the ground that the mother was progressively alienating
the children from him.  The mother counterclaimed for increased child
support.  Following a bench trial, the trial court declined to change
the custody of the children and increased the father's child support. 
The father asserts on this appeal that the trial court erred by
refusing to find that the circumstances had changed sufficiently to
warrant a change in the custody of the parties' three youngest
children.

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

RANDALL DEAN STANCLIFF
VS.
PATRICIA SUSAN STANCLIFF

Court:TCA

Attorneys: 

Roger Hudson, #7014
16 Public Square North
Murfreesboro, Tennessee 37130
ATTORNEY FOR PLAINTIFF/APPELLEE

P. Edward Schell
136 Fourth Avenue South
Franklin, Tennessee 37064
ATTORNEY FOR DEFENDANT/APPELLANT                        

Judge:TODD

First Paragraph:

In this divorce case, the defendant-wife has appealed from the
judgment of the Trial Court presenting the following issues:
I.  Whether the Chancery Court erred in finding that Appellant was
not entitled to an award of rehabilitative alimony.

II. Whether the Chancery Court erred in finding that Appellant was
entitled to the sum of Three Thousand Six Hundred $3,600.00) Dollars
as alimony in solido.

The plaintiff-husband presents an additional issue claiming attorney's
fee on appeal.

In contrast to the brevity of the issues, the facts, proceedings and
disposition by the Trial Court are rather lengthy and complicated.

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

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES
VS.
N.A.A. and J.M.A.

Court:TCA

Attorneys: 

For Plaintiff/Appellee:             For Defendants/Appellants:

John Knox Walkup                    Sam Wallace, Sr.
Attorney General and Reporter       Nashville, Tennessee

Douglas Earl Dimond
Assistant Attorney General                         

Judge:KOCH

First Paragraph:

This appeal involves the termination of the parental rights of the
parents of four children between seven and thirteen years of age.  The
children were removed from their parents' custody in 1991 after their
mother was accused of physically abusing their infant cousin who later
died of her injuries.  In April 1997 the Tennessee Department of
Children's Services petitioned the Cheatham County Juvenile Court
seeking to terminate the mother's and father's parental rights.  The
juvenile court conducted a bench trial and terminated the parents'
parental rights.  On this appeal, the parents assert that the decision
is not supported by clear and convincing evidence.  We affirm the
judgment terminating the parents' parental rights because the
Department has presented clear and convincing evidence establishing
the statutory grounds for terminating parental rights and
demonstrating that the children's best interests will be best served
if they can be integrated into a stable and permanent home as soon as
possible.

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

STATE OF TENNESSEE
VS.
STEVE ANTHONY RUTH

Court:TCCA

Attorneys:   

For the Appellant:              For the Appellee:

Stephen M. Wallace              John Knox Walkup        
District Public Defender        Attorney General of Tennessee
     and                        and             
Richard Tate                    Todd R. Kelley
Assistant Public Defender       Asst Attorney General of Tennessee
P.O. Box 839                    425 Fifth Avenue North      
Blountville, TN 37617-0839      Nashville, TN 37243-0493

                                H. Greeley Wells, Jr.
                                District Attorney General
                                and
                                Edward Wilson
                                Assistant District Attorney General
                                P.O. Box 526
                                Blountville, TN 37617                       

Judge:TIPTON

First Paragraph:

The defendant, Steve Anthony Ruth, appeals as of right from his
conviction in the Sullivan County Criminal Court following a jury
trial for attempt to obtain a controlled substance by fraud, a Class D
felony.  The defendant was sentenced as a Range II, multiple offender
to five years in the custody of the Department of Correction to be
served consecutively to prior sentences, and he was fined two hundred
fifty dollars.  The defendant contends that the evidence is
insufficient to support his conviction.  We affirm the judgment of
conviction pursuant to Rule 20, Tenn. Ct. Crim. App. R.

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


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