TBALink Opinion-Flash

November 16, 1998 -- Volume 4 -- Number 167

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):
04-New Opinion(s) from the Tennessee Supreme Court
00-New Opinion(s) from the Tennessee Supreme Court Workers Comp Panel
00-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
06-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.
STEVEN BOLDEN

Court:TSC

Attorneys: 

For Appellant:              For Appellee: 
Vanedda Prince              John Knox Walkup
FOWLER, PRINCE & WEBB       Attorney General & Reporter
Union City, Tennessee               
                            Michael E. Moore
                            Solicitor General

                            Kathy Morante
                            Deputy Attorney General

                            Kenneth W. Rucker
                            Assistant Attorney General
                            Nashville, Tennessee

                            At Trial:
                            C. Phillip Bivens
                            District Attorney General
                            Dyersburg, Tennessee                         

Judge:ANDERSON

First Paragraph:

We granted this appeal to determine two issues:  first, whether a
co-defendant's testimony pursuant to a plea agreement with the
prosecution violated the defendant's rights to due process of law and
a fair trial under the United States and Tennessee Constitutions; and
second, whether the trial court erred in charging the jury to consider
the lesser included offense of second degree murder over the
defendant's objection.

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

JOHN L. RICE
VS.
VERONICA J. SABIR

WITH DISSENTING OPINION

Court:TSC

Attorneys: 

For Appellant:                  For Appellee:
Samuel R. Anderson              John D. McMahan         
Shane Usary                     G. Brent Burks
David L. Moss                   McMAHAN & ASSOCIATES
LUTHER-ANDERSON, PLLP           Chattanooga, Tennessee
Chattanooga, Tennessee
                         

Judge:ANDERSON

First Paragraph:

In this premises liability case, the issue is whether the owner of a
house owed a duty of care to warn a contractor of the existence of
mildew on the house roof upon which he had been hired to work and from
which he fell and was injured.

URL:http://www.tba.org/tba_files/TSC/ricejohn_opn.WP6
Opinion-Flash
DISSENTING OPINION:
URL:http://www.tba.org/tba_files/TSC/ricejohn_dis.WP6
Opinion-Flash

THE TENNESSEAN, a division of Gannett Satellite Information
Network, Inc., and FRANK SUTHERLAND
VS.
ELECTRIC POWER BOARD OF NASHVILLE

Court:TSC

Attorneys: 

For Appellants:             For Appellee:
Alfred H. Knight            Larry Stewart
WILLIS & KNIGHT             Charles W. Cook
Nashville, Tennessee        Nancy A. Vincent
                            STOKES & BARTHOLOMEW, P.A.
                            Nashville, Tennessee
                
                            Eugene Ward
                            N.E.S. General Counsel
                            Nashville, Tennessee                         

Judge:ANDERSON

First Paragraph:

We granted this appeal to address two questions of first impression
under the Tennessee Public Records Act:  first, whether a government
agency should be required to disclose its customer names, addresses,
and telephone numbers as a public record, even though it did not
maintain the information in its computer in the exact format in which
it had been requested; and second, whether the same government agency
may require payment of costs incurred in disclosing the information
and the cost of notifying its customers that the information had been
requested.

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

MICHELLE CREIGHTON TERRY
VS.
GARY D. NIBLACK, M.D. and LABORATORY INVESTMENTS,   
INC., D/B/A GENE PROOF TECHNOLOGIES

Court:TSC

Attorneys:

For Appellants:                 For Appellee:

Michael M. Castellarin          Carol L. Soloman
MOODY, WHITFIELD &              L. R. DeMarco
  CASTELLARIN                   Nashville, Tennessee
Nashville, Tennessee                          

Judge:ANDERSON

First Paragraph:

We granted this appeal to determine when the one-year statute of
limitations commenced for the plaintiff to file her suit alleging that
the defendants negligently performed an inaccurate paternity blood
test, which excluded from paternity the natural father of her child. 
The trial court dismissed the suit because it was not filed within one
year of when the plaintiff learned the results of the blood test.  The
Court of Appeals reversed, concluding that the statute did not
commence until the date the plaintiff learned the results of a second
blood test that differed from the first blood test.

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

TIMOTHY A. BALTZ
VS.
PAM BALTZ KNIGHT

Court:TCA

Attorneys:   

For Plaintiff/Appellant:            For Defendant/Appellee:

William S. Fleming                  Claudia S. Jack
Columbia, Tennessee                 Columbia, Tennessee                       

Judge:KOCH

First Paragraph:

This appeal involves the authority of the Maury County Juvenile Court
to modify an Arkansas court's decree involving the custody of two
children.  Five years after the children and their mother moved to
Tennessee, the father filed a petition in the Maury County Juvenile
Court seeking sole custody and child support.  The juvenile court
entered an agreed order on September 8, 1995, granting each of the
parents custody of one of their daughters.  However, approximately
eight months later, the juvenile court determined that it lacked
subject matter jurisdiction to modify the Arkansas custody decree and
vacated its September 8, 1995 order.  The father has appealed.  We
agree that the Maury County Juvenile Court did not have subject matter
jurisdiction over this matter and, therefore, affirm the juvenile
court's decision invalidating its own order.

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

LARRY ROGER BARNETT
VS.
SUSAN MARIE BARNETT

Court:TCA

Attorneys:  

For Plaintiff/Appellee:         For Defendant/Appellant:

Rondal Thomas Wilson            Michael E. Giffin
Patricia Diane Cook             Robertson Worsham Gregory & Giffin
Shelbyville, Tennessee          Tullahoma, Tennessee                        

Judge:KOCH

First Paragraph:

This appeal involves two parents' interstate competition for the
custody of their children.  The husband filed a divorce complaint in
the Chancery Court for Bedford County two days after the wife
commenced proceedings for separate maintenance and child support in
Florida.  Following a bench trial, the Tennessee court granted the
husband a divorce and awarded him sole custody of the parties' three
children.  On this appeal, the wife asserts that the Tennessee court
did not have jurisdiction over the husband's divorce complaint and
that the trial court should not have exercised jurisdiction over the
child custody and visitation issues.  While we find that the trial
court had jurisdiction over the custody issues in this case, we have
determined that the trial court should not have exercised its
jurisdiction and should have deferred to the Florida court where the
wife's petition for separate maintenance was pending.  Accordingly, we
vacate the custody determination.

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

JAMES MARK BLICK
VS.
STEPHEN W. KENT, M.D., et al

Court:TCA

Attorneys: 

MARK R. OLSON
OLSON & OLSON, PLC
Clarksville, Tennessee
Attorney for Appellant


DAN L. NOLAN
MARIE ANTOINETTE JOINER
BATSON, NOLAN, BRICE, HARVEY & WILLIAMSON, PLLC
Clarksville, Tennessee
Attorneys for Appellees                         

Judge:HIGHERS

First Paragraph:

In this medical malpractice action, Plaintiff James Mark Blick appeals
the trial court's final order entering summary judgment in favor of
Defendants/Appellees Stephen W. Kent, M.D., William D. Shippen, M.D.,
Robert Douglas Doty, M.D., and Robert Hector, P.A.  For reasons
hereinafter stated, we reverse the trial court's judgment and remand
for further proceedings.

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

PEGGY JEAN BRADFORD
VS.
JAMES WILLIAM ANDERSON and MYRA ALEA

IN RE:   Rachel Lee Anderson

Court:TCA

Attorneys: 

J. BROOKS FOX
MOORE & HEDGES
105 N. Atlantic Street
P. O. Box 1810
Tullahoma, Tennessee 37388
    Attorney for Petitioner/Appellant

H. THOMAS PARSONS
PARSONS, NICHOLS & JOHNSON
101 West Main Street
Manchester, Tennessee 37355
    Attorney for Respondents/Appellees                         

Judge:CANTRELL

First Paragraph:

This is a custody dispute between the child's father and the child's
maternal grandmother, who was nominated as the custodian in the will
of the child's mother.  The Circuit Court of Coffee County awarded
custody to the father and his mother.  We affirm.

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

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES
VS.
BONNIE FINEOUT, CLAYTON FINEOUT

IN THE MATTER OF:

CLAYTON VANCE FINEOUT, JR., D.O.B. 3-22-87; REBECCA LOUISE
FINEOUT, D.O.B. 3-26-88; JEREMY VANCE FINEOUT, D.O.B. 11-17-83

Court:TCA

Attorneys:  

JOHN KNOX WALKUP
Attorney General & Reporter

DOUGLAS EARL DIMOND
Assistant Attorney General
425 Fifth Avenue, North
Nashville, Tennessee 37243-0499
    Attorney for Petitioner/Appellee

JOHN B. HOLT
HOLT & KROEGER
121 5th Avenue West
Springfield, Tennessee 37172
    Attorney for Defendant/Appellant                        

Judge:CANTRELL

First Paragraph:

The trial court terminated the mother's parental rights, following a
hearing for which she failed to appear.  She argues on appeal that the
court erred in refusing to grant her a continuance, and that the
Department of Children's Services failed to establish sufficient
grounds for termination of parental rights under Tenn. Code Ann. S
36-1-113.  We affirm the trial court.

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

HEIDI MARLIES SOMMERVILLE (CALUGER) and GERICKE SOMMERVILLE
VS.
JERRY WILLIAM SOMMERVILLE

Court:TCA

Attorneys:  

RANDLE W. HILL, JR.
329 Union Street
P. O. Box 19632
Nashville, Tennessee  37219-0632
    ATTORNEY FOR PLAINTIFFS/APPELLANTS


BRUCE N. OLDHAM
SUE HYNDS DUNNING
Oldham & Dunning
109 Public Square
Gallatin, Tennessee  37066
    ATTORNEYS FOR DEFENDANT/APPELLEE                        

Judge:CAIN

First Paragraph:

This appeal presents another chapter in continuing domestic litigation
not likely to end with this appeal.

Jerry Sommerville ("Mr. Sommerville" or "Appellee") and Heidi
Sommerville (now Caluger) ("Ms. Caluger" or "Appellant") are the
parents of two daughters, Gericke Sommerville and Kara Sommerville. 
The parties entered into a Marital Dissolution Agreement on February
12, 1994 which was incorporated into a Final Decree of Divorce entered
March 14, 1994.  The decree provided that the Mother would have
custody of the parties' youngest daughter Kara with visitation set for
the Father.  The older child, Gericke, was already emancipated at the
time of the divorce and attending college.  Jerry Sommerville was to
pay $886.00 per month child support for the minor child Kara.

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

STATE OF TENNESSEE
VS.
J. B. McCORD

Court:TCCA

Attorneys: 

For the Appellant:              For the Appellee:

Dale Clement Potter             Charles W. Burson
District Public Defender        Attorney General of Tennessee
31st Judicial District          and
P.O. Box 510                    Christina S. Shevalier
McMinnville, TN 37110           Assistant Attorney General
        and                     Criminal Justice Division
Isaiah S. Gant                  450 James Robertson Parkway
c/o Dale Clement Potter         Nashville, TN 37243-0493    
P.O. Box 510           
McMinnville, TN 37110           William Locke
                                District Attorney General
                                and
                                Robert Boyd
                                Assistant District Attorney General
                                31st Judicial District
                                P.O. Box 410
                                McMinnville, TN 37110                         

Judge:TIPTON

First Paragraph:

The defendant, J. B. McCord, appeals as of right from his judgment of
conviction for second degree murder, a Class A felony.  The Cumberland
County Circuit Court imposed a sentence of thirty-eight years to be
served in the Department of Correction as a Range II, multiple
offender.  In this appeal, the defendant presents the following
issues: 1. whether the evidence presented at trial is sufficient to
sustain beyond a reasonable doubt defendant's conviction for second
degree murder;

2. whether the defendant was legally competent to stand trial;

3. whether the trial court should have suppressed defendant's
statement because the police officers failed to honor the defendant's
right to remain silent; and

4. whether the trial testimony of an attorney violated the defendant's
attorney-client privilege;

After a thorough review of the record on appeal and upon careful
consideration of the applicable law, we affirm the judgment of the
trial court.

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


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