TBALink Opinion-Flash

October 21, 1998 -- Volume #4 -- Number #150

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 Opinion(s) from the Tennessee Supreme Court
02-New Opinion(s) from the Tennessee Supreme Court Workers Comp Panel
00-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
08-New Opinion(s) from the Tennessee Court of Appeals
00-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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Lucian T. Pera
Editor-in-Chief, TBALink



RITA TRULL
VS.
KENTUCKY LAKE OIL CO.   

Court:TSC - Workers Comp Panel

Attorneys:  

For the Appellant:                          For the Appellee:

Thomas K. McAlexander                       Lee M. Greer, III
Hill Boren                                  Greer & Greer
1269 North Highland Avenue                  114 South Poplar Street
P.O. Box 3539                               P.O. Box 385
Jackson, TN 38303-0539                      Paris, TN 38242                        

Judge:HOLDER

First Paragraph:

This worker's 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) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. The parties
have raised two issues for the Panel's consideration: I.    Whether
the trial court properly granted the defendant's motion for summary
judgment finding the plaintiff to be an independent contractor?

II. Whether the trial court properly denied the defendant's motion
for summary judgment on the issue of notice?

The plaintiff asserts that the trial court erred when it granted the
defendant's motion for summary judgment and found the plaintiff to be
an independent contractor.  The defendant asserts that the trial court
erred when it failed to rule that the plaintiff's claim for worker's
compensation benefits was barred due to the plaintiff's failure to
timely notify the defendant of the claimed injury.  For the following
reasons, we find that genuine issues of material fact exist as to both
issues making summary judgment inappropriate.

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

ELIZABETH A. WILSON
VS.
WORTHCO, INC. (d/b/a McDonald's Store #5092) and LUMBERMENS
MUTUAL CASUALTY COMPANY

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellants:         For the Appellee:

Steven W. Maroney           Jimmy C. Smith
Waldrop & Hall, P.A.        Conley Campbell Moss Smith
106 S. Liberty              317 South Third Street
Jackson, TN  38301          P.O. Box 427
                            Union City, TN  38261                         

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. The trial
judge found the plaintiff had suffered a compensable injury and
entered a judgment in her favor of 50 percent vocational impairment to
the body as a whole. The defendant raises the following issues:
I.  Whether the trial court erred in rejecting Defendant's Motion to
Dismiss     on grounds that the statute of limitations had expired
prior to the filing     of Plaintiff's claim.

II. Whether the trial court erred in finding that Plaintiff's
alleged injury was      compensable and not a non-compensable
aggravation of a pre-existing   condition.

III.    Whether the trial court erred in finding that the Plaintiff
sustained a fifty   percent (50%) permanent partial disability to
the body as a whole.

We affirm the judgment of the trial court.

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

RUSTY JOLENE BEAL
VS.
JOHN DOE and Tennessee Farmers Mutual Insurance Company

Court:TCA

Attorneys: 

GEORGE M. ALLEN
Wischhof & Allen
110 Glancy Street, Suite 207
Goodlettsville, Tennessee  37072
    ATTORNEY FOR PLAINTIFF/APPELLEE



THOMAS H. PEEBLES
G. BRIAN JACKSON
Trabue, Sturdivant & DeWitt
511 Union Street
25th Floor, Nashville City Center
Nashville, Tennessee  37219
    ATTORNEYS FOR DEFENDANTS/APPELLANTS
                         

Judge:CAIN

First Paragraph:

This is an appeal by Tennessee Farmers Mutual Insurance Company and an
unknown motorist alleged to be uninsured pursuant to the provisions of
Tennessee Code Annotated section 56-7-1201(e).

Rusty Jolene Beal filed suit against James M. Sloan as driver, and
William Sloan as owner of a vehicle which struck plaintiff vehicle in
the rear on White Bridge Road, Nashville, Tennessee January 2, 1994. 
The allegations asserted proximate negligence, family purpose doctrine
and injuries to the plaintiff.

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

BETTILYNN GAY FORD
VS.
BRION LEONARD FABIAN FORD

Court:TCA

Attorneys: 

For the Plaintiff/Appellee:         For the Defendant/Appellant:

Kathryn G. Brinton                  G. Kline Preston, IV
Nashville, Tennessee                Nashville, Tennessee                         

Judge:KOCH

First Paragraph:

This appeal involves a dispute over the calculation of child support. 
Seven years after the divorce, the custodial parent petitioned the
Circuit Court for Davidson County for increased child support for the
parties' teenage son in light of funds the noncustodial parent was
receiving from his mother's estate.  The trial court heard the
evidence without a jury and increased the noncustodial parent's child
support obligation from $50 per week to $750 per month.  On this
appeal, the noncustodial parent asserts that the trial court erred by
increasing his child support and by requiring him to pay the custodial
parent's legal expenses.  We affirm the trial court's decision to
increase the noncustodial parent's child support and to require him to
pay a portion of the custodial parent's legal expenses.  However, we
modify the amount of the noncustodial parent's monthly child support
obligation and remand the case to the trial court to recalculate the
amount of child support arrearage in a manner consistent with this
opinion.

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

CHARLES HOLIFIELD
VS.
TDOC COMMISSIONER DONAL CAMPBELL, CORRECTIONS CORP.
OF AMERICA

Court:TCA

Attorneys:

Charles Holifield, #154529
S.C.C.F. Annex Section C-130
P.O. Box 279, Carroll Road
Clifton, Tennessee 38425
PRO SE/PLAINTIFF/APPELLANT


Patricia Kussmann, #15506
Assistant Attorney General
425 Fifth Avenue North
Cordell Hull Building, Second Floor
Nashville, Tennessee 37243-0488
ATTORNEY FOR DEFENDANTS/APPELLEES                          

Judge:TODD

First Paragraph:

One of the plaintiffs, Charles Holifield, a prisoner in the custody of
the Tennessee Department of Correction, has appealed from the
dismissal of his suit against the Commissioner of Correction and
Corrections Corporation of America for failure to state a claim for
which relief can be granted.  The other plaintiff joined in the
complaint but has not appealed.

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

FREDERIC B. INGRAM
VS.
WILLIAM F. EARTHMAN

Court:TCA

Attorneys:  

For the Plaintiff/Appellee:     For the Defendant/Appellant:

James V. Doramus                Maclin P. Davis, Jr.
Gregory Mitchell                H. Buckley Cole
Doramus & Trauger               Jonathan Cole
Nashville, Tennessee            Baker Donelson Bearman & Caldwell
                                Nashville, Tennessee                        

Judge:KOCH

First Paragraph:

This appeal involves a dispute between two former friends and business
associates over a sizeable personal debt.  After one of the friends
failed to repay a $1,700,000 loan, the friend who had loaned the money
filed suit in the Chancery Court for Davidson County seeking to
recover the loan and interest.  The borrower asserted that the lender
had delayed too long in filing suit and counterclaimed for allegedly
unpaid compensation and retirement benefits.  A jury awarded the
lender $5,667,122.84 on the debt, and the trial court, with the
parties' consent, awarded the lender an additional $400,000 for his
legal expenses.  On this appeal, the  borrower raises numerous issues
relating to the denial of his motions for directed verdict, the
adequacy of the jury instructions, the instructions limiting the use
of the evidence of the lender's prior criminal conviction, and the
excessiveness of the verdict.  We have determined that the judgment
should be affirmed.

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

ANNA BELLE LYNN
VS.
RICHIE BLUE

Court:TCA

Attorneys:   

DAVID D. WOLFE
505 West College
Dickson, Tennessee  37055
    ATTORNEY FOR PLAINTIFF/APPELLANT



JOHN LEE WILLIAMS
102 South Court Square
Waverly, Tennessee  37185
    ATTORNEY FOR DEFENDANTS/APPELLEES                       

Judge:CAIN

First Paragraph:

This is an appeal from the action of the Chancery Court of Humphreys
County, Tennessee upholding a denial by the county beer board of a
beer permit to the applicant.  Tennessee Code Annotated section
57-5-105(e)(Supp. 1998) provides that judicial review of a beer
board's denial of an application for a permit to sell beer shall be
"in the manner as authorized under 57-5-108."  Tennessee Code
Annotated section 57-5-108(d) provides for "review by statutory writ
of certiorari, with a de novo trial as a substitute for an appeal."

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

MIKE MIERZEJEWSKI and FURNITURE PARTNERS, INC.
VS.
BS ENTERPRISES, INC., and BELINDA SHATZER d/b/a T. J.
BAKER'S FURNITURE

Court:TCA

Attorneys: 

For Appellants                    For Appellees

FRED T. HANZELIK                  ELIZABETH G. ALT
BRENT JAMES                       WILLIAM T. ALT
Hanzelik & James                  William T. Alt, P.C.
Chattanooga, Tennessee            Chattanooga, Tennessee                         

Judge:SUSANO

First Paragraph:

This suit in chancery was filed by Furniture Partners, Inc., against
T. J. Baker's Furniture.  It arises out of a failed business
relationship.  The complaint asked the trial court to issue a "writ of
replevy" for items of furniture and a temporary restraining order
(TRO).  After granting the TRO, the Chancellor referred the issues
made by the pleadings to a master.  Following the trial court's
receipt of the master's report, the plaintiff filed an answer to the
defendant's counterclaim, in which answer the plaintiff requested a
trial by jury.  The court denied the plaintiff's request for a jury
trial; confirmed the master's report; and entered a judgment for
$39,916.36 on the defendant's counterclaim.  The plaintiff appealed,
contending, in its sole issue, that it is entitled to a jury trial
pursuant to the authority of Article I, Section 6, of the Tennessee
Constitution and T.C.A. S 21-1-103.

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

THE SHERWIN-WILLIAMS COMPANY
VS.
RUTH E. JOHNSON, Commissioner of Revenue, State of Tennessee

Court:TCA

Attorneys:

MICHAEL D. SONTAG
BRYAN W. METCALF
Bass, Berry & Sims
2700 First American Center
Nashville, Tennessee  37238-2700

MICHAEL T. CUMMINS
JOSEPH F. TIMMONS
The Sherwin Williams Co.
101 Prospect Avenue, N.W.
Cleveland, Ohio  44115  
    ATTORNEYS FOR PLAINTIFF/APPELLANT

JOHN KNOX WALKUP
Attorney General and Reporter

JOE C. PEEL
Cordell Hull Building, Second Floor
425 Fifth Avenue North
Nashville, Tennessee  37243-0489
    ATTORNEYS FOR DEFENDANT/APPELLEE                          

Judge:CAIN

First Paragraph:

Plaintiff Sherwin-Williams Company filed suit pursuant to Tennessee
Code Annotated section 67-1-1802 seeking a refund of corporate excise
taxes with respect to tax years 1987, 1988, 1989 and 1990.  The appeal
presents three questions, to-wit: 1.    Is return of capital from cash
investments includable in the denominator under T.C.A. 67-4-811(g)(1)?
2.  If the answer to question 1 is affirmative, did the commissioner
properly exercise his discretion under T.C.A. 67-4-812(a) in varying
the statutory formula? 3.   Is Sherwin-Williams' refund claim for the
year 1987 barred by the statute of limitations?

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

JANET ANN YOUNG
VS.
JAMES ROBERT YOUNG

Court:TCA

Attorneys:   

For Plaintiff/Appellant:            For Defendant/Appellee:

W. David Kelley                     Robert L. Huskey
Haynes Hull Rieder & Ewell          Manchester, Tennessee
Tullahoma, Tennessee

Randall W. Morrison
Tullahoma, Tennessee                       

Judge:KOCH

First Paragraph:

This appeal involves the custody of a six-year-old girl.  Both parents
sought a divorce and custody of the child.  Following a bench trial,
the Chancery Court for Coffee County granted the father the divorce
and gave custody of the child to the mother solely because the
father's employment as a long-haul truck driver prevented him from
being the custodial parent.  The father quickly obtained local
employment and filed a timely post-trial motion requesting custody. 
The trial court granted the motion and awarded custody of the child to
the father.  The mother asserts on this appeal that the trial court
had no basis for changing custody and that she was comparatively more
fit to be the child's custodian.  We have determined that the trial
court's custody determination was proper.

URL:http://www.tba.org/tba_files/TCA/youngja_opn.WP6


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