TBALink Opinion-Flash

December 9, 1998 -- Volume 4 -- Number 176

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):
02-New Opinion(s) from the Tennessee Supreme Court
02-New Opinion(s) from the Tennessee Supreme Court Workers Comp Panel
01-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
05-New Opinion(s) from the Tennessee Court of Appeals
08-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



ANNE CROSSETT
VS.
BABCOCK INDUSTRIES, FAULTLESS CASTER DIVISION
and THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA

JUDGMENT ORDER

Court:TSC

Judge: PER CURIAM

First Paragraph:

This case is before the Court upon the entire record, including the
order of referral to the Special Workers' Compensation Appeals Panel,
and the Panel's Memorandum Opinion setting forth its findings of fact
and conclusions of law, which are incorporated herein by reference.
Whereupon, it appears to the Court that the Memorandum Opinion of the
Panel should be accepted and approved; and ...

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

MILLER HIGH
VS.
GF OFFICE FURNITURE, LTD.

Court:TSC

Judge: PER CURIAM

First Paragraph:

This case is before the Court upon the entire record, including the
order of referral to the Special Workers' Compensation Appeals Panel,
and the Panel's Memorandum Opinion setting forth its findings of fact
and conclusions of law, which are incorporated herein by reference.
Whereupon, it appears to the Court that the Memorandum Opinion of the
Panel should be accepted and approved; and ...

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

JAMIA B. GARDNER
VS.
MODINE MANUFACTURING COMPANY, INC. and SENTRY INSURANCE CO.
and
DINA TOBIN, DIRECTOR OF THE SECOND INJURY FUND

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellants:         For the Appellees:

Michael J. Mollenhour       Roger E. Ridenour
P.O. Box 9299               P.O. Box 530
Knoxville, Tenn.  37940     Clinton, Tenn.  37717-0530

                            Kathleen W. Stratton
                            425 Fifth Avenue North
                            2nd Floor, Cordell Hull Bldg.
                            Nashville, Tenn.  37243                         

Judge:THAYER

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 employer, Modine Manufacturing Company, Inc., has appealed from
the action of the trial court in awarding the employee, Jamia B.
Gardner, 80% permanent partial disability to each arm.  The trial
court dismissed the case against the Second Injury Fund.

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

WILLIAM E. WALDEN
VS.
NEW LIFE MINISTRIES d/b/a NEW LIFE MATERNITY HOME

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:              For the Appellee:

Ginger F. Wilson                Roger E. Jenne
P.O. Box 1083                   P.O. Box 161
Cleveland, Tenn.  37364-1083    Cleveland, Tenn.  37364
                        

Judge:THAYER

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 employer, New Life Bible Church, Inc., has perfected this appeal
from a ruling of the trial court in awarding the employee, William E.
Walden, a judgment in the sum of $34,187.64 representing a recovery
for unpaid medical expenses in the sum of $33,193.69 and for
reimbursement of travel expenses in the sum of $993.95.

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

SUPREME COURT OF TENNESSEE
STATE LIST FOR PERMISSION TO APPEAL

Court:TSC - Rules

URL:http://www.tba.org/tba_files/TSC_Rules/statelst_127.WP6
Opinion-Flash

FREDERIC B. INGRAM
VS.
WILLIAM F. EARTHMAN

CORRECTED OPINION (p. 37) -- Original filed 10/21/98

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

SHIN YI (SUNNY) LIEN and wife, ANN LIEN
VS.
RUTH COUCH, individually, and BIG RIDGE EMU RANCH, INC.

Court:TCA

Attorneys: 

For Plaintiffs/Appellants:      For Defendants/Appellees:

Wm. Kennerly Burger             Jeff Reed
Murfreesboro, Tennessee         Murfree, Cope, Hudson & Scarlett
                                Murfreesboro, Tennessee                         

Judge:KOCH

First Paragraph:

This appeal involves an interstate contract dispute over ten pairs of
emu chicks.  Two Tennessee residents declined to honor their contract
to purchase the chicks after the Arkansas breeders attempted to
substitute chicks different from those advertised for sale.  The
breeders filed a breach of contract suit in Arkansas against the
purchasers seeking to recover the unpaid purchase price, and the
purchasers filed suit in the Circuit Court for Wilson County seeking
to recover their down payment as well as treble damages and attorney's
fees under the Tennessee Consumer Protection Act.  After the breeders
obtained a judgment in Arkansas against the purchasers, they moved to
dismiss the purchasers' Tennessee lawsuit on the ground that the
Arkansas judgment was res judicata to the purchasers' Tennessee
claims.  The trial court agreed and dismissed the purchasers' claims. 
On this appeal, the purchasers assert that the Arkansas judgment
should not have precluded them from pursuing their Tennessee Consumer
Protection Act claims in Tennessee.  We agree because the Arkansas
court did not have the power to award the full measure of relief the
purchasers are seeking in the Tennessee proceedings.

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

ROBERT E. MAYERS
VS.
MILLER MEDICAL GROUP, MILLER MEDICAL GROUP, 
An Affiliate of Baptist Healthcare Group; RUSSELL D. WARD, M.D.
and MICHEL KUZUR, M.D.,

Court:TCA

Attorneys:  

ROBERT E. MAYERS, Pro Se
1525 Naples Avenue
Nashville, Tennessee  37207

ROBERT E. PARKER
RICHARD F. RUSSELL
200 Fourth Avenue North, 5th Floor
Nashville, Tennessee  37219
    ATTORNEYS FOR DEFENDANTS/APPELLEES                        

Judge:CAIN

First Paragraph:

Plaintiff, Robert E. Mayers, acting pro se in this medical malpractice
action, appeals the decision of the Circuit Court of Davidson County
denying his application for relief under Tennessee Rules of Civil
Procedure 60.02 from a final summary judgment rendered in favor of the
defendants.

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

JAMES ROWLAND MOORE
VS.
KAREN OWEN MOORE

Court:TCA

Attorneys:      

LINDA F. BURNSED
AMY BRYSON SMITH
424 Church Street, Suite 1750
Nashville, Tennessee 37219
    Attorneys for Plaintiff/Appellant

SANDRA JONES
213 Third Avenue, North
Nashville, Tennessee 37201
    Attorney for Defendant/Appellee                    

Judge:CANTRELL

First Paragraph:

After a 1996 divorce by the Circuit Court of Davidson County the
husband filed an independent damages action in the chancery court,
alleging that the wife fraudulently induced him to enter into the
divorce settlement.  The wife filed a Rule 60.02 motion in the divorce
court seeking a declaration that she was not guilty of fraud.  The
divorce court ruled that the chancery court was bound by the circuit
court's judgment and that the husband must pay $2500 in attorney's
fees to the wife for services in the Rule 60.02 motion.  We reverse.

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

PERMANENT GENERAL ASSURANCE CORPORATION
VS.
GILBERT WATERS

PEGGY RICHARDSON, RODGERICK WATERS, BEVERLY BATEY

Court:TCA

Attorneys:  

JOHN B. ALLYN
301 Plus Park Boulevard, Ste. 10
Nashville, Tennessee 37217
    Attorney for Plaintiff/Appellant

JOSEPH L. LACKEY, JR.
1230 First American Center
Nashville, Tennessee 37238-1230
    Attorney for Defendants/Appellees
                        

Judge:CANTRELL

First Paragraph:

This case involves an exclusion in an automobile liability policy for
a person operating the automobile without a reasonable belief that
that person is entitled to do so.  The Circuit Court of Davidson
County dismissed the insurance company's action for a declaratory
judgment.  We reverse, and declare that the exclusion precluded
coverage by the company.

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

STATE OF TENNESSEE
VS.
IVAN JIMENEZ

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

JOHN E. HERBISON            JOHN KNOX WALKUP
2016 Eighth Avenue South    Attorney General and Reporter
Nashville, TN  37204
                            DARYL J. BRAND
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN  37243-0493

                            MIKE BOTTOMS
                            District Attorney General

                            LEE BAILEY
                            Assistant District Attorney
                            P. O. Box 1619
                            Columbia, TN  38464                         

Judge:SMITH

First Paragraph:

On June 14, 1994, Appellant, Ivan Jimenez, pled guilty in Maury County
to the sale of cocaine, a Class C felony. Initially the trial court
sentenced Appellant to three years, six months to be served in
incarceration and the remainder to be served on probation. The trial
court also fined Appellant $2,000. The sentence was to run concurrent
to sentences from a different Maury County case, to two Giles County
cases, and to two Lawrence County cases. On October 12, 1994, the
trial court entered an amended judgment, ordering Appellant to three
years in Community Corrections, with the first six months of that
sentence to be served in the county jail. The other provisions of the
judgment remained the same. On August 13, 1996, the trial court
revoked Appellant's probation and ordered that he serve 60 days in the
county jail before being released on community corrections. On January
6, 1997, the trial court issued a warrant against Appellant for
violation of the conditions of Community Corrections. After a hearing
on April 24, 1997, the trial court revoked Appellant's community
corrections sentence and ordered that "he go into the custody of the
sheriff to serve the sentence previously imposed."

URL:http://www.tba.org/tba_files/TCCA/jimeniv_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
MICHAEL T. KEEN

Court:TCCA

Attorneys:   

FOR THE APPELLANT:          FOR THE APPELLEE:

DAVID A. DOYLE              JOHN KNOX WALKUP 
District Public Defender    Attorney General & Reporter
18th Judicial District
117 East Main Street        CLINTON J. MORGAN
Gallatin, TN  37066         Assistant Attorney General
                            2nd Floor, Cordell Hull Building
                            425 Fifth Avenue North 
                            Nashville, TN  37243

                            LAWRENCE RAY WHITLEY 
                            District Attorney General

                            SALLIE WADE BROWN 
                            Assistant District Attorney General
                            18th Judicial District
                            113 West Main Street
                            Gallatin, TN  37066                       

Judge:WOODALL

First Paragraph:

Michael T. Keen, the Defendant, appeals as of right following his
sentencing hearing in the Sumner County Criminal Court.  Defendant was
indicted for vehicular homicide and DUI, second offense.  In an
agreement with the State, Defendant pled guilty to vehicular homicide,
a Class B felony, and agreed to an eight (8) year sentence, with the
trial court to determine the manner of service of the sentence. 
Following his sentencing hearing, the trial court ordered Defendant to
serve eight (8) years in the Tennessee Department of Correction.  In
his appeal, Defendant argues that the trial court erred in refusing to
grant an alternative sentence.  We affirm the judgment of the trial
court.

URL:http://www.tba.org/tba_files/TCCA/keenmt_opn.WP6
Opinion-Flash

JOHN McDONALD
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:
    
    JOHN McDONALD, Pro Se
    #125039
    P.O. Box 5000
    Mountain City, TN  37683-5000

FOR THE APPELLEE:
    
    JOHN KNOX WALKUP
    Attorney General and Reporter
    
    TODD R. KELLEY
    Assistant Attorney General
    Cordell Hull Building, 2nd Floor
    425 Fifth Avenue North
    Nashville, TN  37243-0493
    
    VICTOR S. JOHNSON III
    District Attorney General
    
    KATY NOVAK MILLER
    Assistant District Attorney General
    222 - 2nd Avenue North
    Washington Square, Suite 500
    Nashville, TN  37201-1649                        

Judge:RILEY

First Paragraph:

Petitioner appeals the dismissal of his motion to re-open petition for
post- conviction relief.  He claims that the 1987 indictment for
aggravated rape and aggravated sexual battery under which he was
convicted failed to vest jurisdiction in the trial court as per State
v. Hill, 954 S.W.2d 725 (Tenn. 1997).  After a thorough review of the
record provided, we find this claim to be without merit and AFFIRM the
decision of the trial court.

URL:http://www.tba.org/tba_files/TCCA/mcdonald_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
SHERYL L. PENDERGRASS

Court:TCCA

Attorneys:  

FOR THE APPELLANT:          FOR THE APPELLEE:

DAVID A. DOYLE              JOHN KNOX WALKUP
District Public Defender    Attorney General & Reporter
117 E. Main St.
Gallatin, TN  37066         DARYL J. BRAND
Clifton, TN  38425          Senior Counsel for the State
                            425 Fifth Ave. N., 2d Floor
                            Nashville, TN  37243-0493

                            LAWRENCE RAY WHITLEY
                            District Attorney General

                            DEE GAY
                            Asst. District Attorney General
                            113 W. Main St.
                            Gallatin, TN  37066                        

Judge:WITT

First Paragraph:

The defendant, Sheryl L. Pendergrass, appeals a certified question of
law pursuant to Rule 37(b)(2)(I), Tennessee Rules of Criminal
Procedure.  In the Sumner County Criminal Court, the defendant pleaded
guilty to three drug offenses, subject to reservation of the certified
question.  In her certified question, the defendant contends that law
enforcement officers infringed on her rights to be free of
unreasonable searches and seizures pursuant to the Fourth Amendment of
the United States Constitution and article 1, section 7 of the
Tennessee Constitution.  We affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCCA/pendergr_opn.WP6
Opinion-Flash

WILLIE ROBERT SEAY
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys:   

FOR THE APPELLANT:
    
    WILLIE ROBERT SEAY, Pro Se
    #141848
    Unit 6-A-102
    Riverbend Maximum Security Prison
    7475 Cockrill Bend Industrial Road
    Nashville, TN 37209-1010

FOR THE APPELLEE:
    
    JOHN KNOX WALKUP
    Attorney General and Reporter
    
    CLINTON J. MORGAN
    Assistant Attorney General
    Cordell Hull Building, 2nd Floor
    425 Fifth Avenue North
    Nashville, TN  37243-0493
    
    TOM P. THOMPSON, JR.
    District Attorney General
    
    DAVID DURHAM
    Assistant District Attorney General
    111 Cherry Street
    Lebanon, TN 37087-3609
                       

Judge:RILEY

First Paragraph:

The petitioner, Willie Robert Seay, appeals the trial court's summary
dismissal of his petition for post-conviction relief.  The petitioner
claims the trial court erred in dismissing his petition for
post-conviction relief and presents the following issues for review:

(1)  whether the evidence presented at trial was sufficient to support
his convictions;

(2) whether trial counsel was deficient in stipulating that the
substance sold by the petitioner was cocaine;

(3) whether trial counsel was ineffective in stipulating as to the
amount of cocaine sold; and

(4) whether trial counsel was ineffective in stipulating "that the
drugs alleged to have been sold by the defendant existed."

URL:http://www.tba.org/tba_files/TCCA/seaywr_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
PAUL J. SEYMOUR

Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:

JULIE A. MARTIN                 JOHN KNOX WALKUP 
Attorney at Law                 Attorney General & Reporter
P.O. Box 426 
Knoxville, TN  37901-0426       GEORGIA BLYTHE FELNER
(On Appeal)                     Assistant Attorney General
                                2nd Floor, Cordell Hull Building
STEPHEN M. WALLACE              425 Fifth Avenue North 
District Public Defender        Nashville, TN  37243

LESLIE S. HALE                  H. GREELEY WELLS, JR.
Assistant Public Defender       District Attorney General 
P.O. Box 839
Blountville, TN  37617-0829     EDWARD EUGENE WILSON 
(At Trial)                      Assistant District Attorney General
                                140 Blountville Bypass
                                P.O. Box 526 
                                Blountville, TN  37617-0526                        

Judge:WOODALL

First Paragraph:

The Defendant, Paul Junior Seymour, appeals as of right from the
revocation of his probation by the Sullivan County Criminal Court.  He
contends that the trial court erred in revoking his probation.  We
affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCCA/seymorpj_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
CAROLYN STRICKLAND

Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:

COMER L. DONNELL                JOHN KNOX WALKUP 
District Public Defender        Attorney General & Reporter

HOWARD L. CHAMBERS              TIMOTHY F. BEHAN
Assistant Public Defender       Assistant Attorney General
213 North Cumberland Street     2nd Floor, Cordell Hull Building
P.O. Box 888                    425 Fifth Avenue North 
Lebanon, TN  37087              Nashville, TN  37243

                                TOM P. THOMPSON, JR. 
                                District Attorney General

                                JOHN D. WOOTTEN, JR.
                                Assistant District Attorney General
                                P.O. Box 178 
                                Hartsville, TN  37074                        

Judge:WOODALL

First Paragraph:

The Petitioner, Carolyn Strickland, appeals the order of the Jackson
County Criminal Court dismissing her petition for post-conviction
relief.  In her sole issue on appeal, Petitioner argues she was
incompetent to stand trial due to the medication she was taking during
the trial and was, therefore, denied her right to due process and a
fair trial.

URL:http://www.tba.org/tba_files/TCCA/strckldc_opn.WP6
Opinion-Flash

JOE L. UTLEY
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

William A. Lane             John Knox Walkup
3236 Dilton Mankin Road     Attorney General & Reporter
Murfreesboro, TN  37127     425 Fifth Avenue, North
                            Nashville, TN  37243-0493

                            Timothy Behan
                            Assistant Attorney General
                            425 Fifth Avenue, North
                            Nashville, TN  37243-0493

                            Victor S. (Torry) Johnson, III
                            District Attorney General
                            222 Second Avenue, North
                            Suite 500
                            Nashville, TN  37201-1649

                            Thomas B. Thurman
                            Deputy District Attorney General
                            222 Second Avenue, North
                            Suite 500
                            Nashville, TN  37201-1649                         

Judge:LAFFERTY

First Paragraph:

The appellant, Joe L. Utley, appeals as of right from a judgment of
the Davidson County Criminal Court denying his petition for
post-conviction relief.  The petitioner alleges that trial and
appellate counsel rendered ineffective assistance in several areas. 
After a through review of the record, we REMAND to the trial court
with instructions to enter a findings of fact and conclusions of law.

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


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