June 15, 1999
Volume 5 -- Number 081

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink 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' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
03 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


NATHAN BREWER
VS.
LINCOLN BRASS WORKS, INC.

Court:TSC

Judgment Order

First Paragraph:

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

http://www.tba.org/tba_files/TSC/Brewern_reh.WP6






MARY MATTHEWS
VS.
PICKETT COUNTY, TENNESSEE,
LARRY PEEK and DANA DOWDY

Court:TSC

Attorneys:                          
FOR PETITIONER:                 FOR RESPONDENTS:

JOSEPH A. JOHNSTON              ALAN T. FISTER
MAX MENDELSOHN                  JEFFREY M. BEEMER
Nashville                       Nashville


FOR AMICUS CURIAE, TENNESSEE    FOR AMICI CURIAE, THE TENNESSEE
MUNICIPAL LEAGUE RISK           TASK FORCE AGAINST DOMESTIC
MANAGEMENT POOL:                VIOLENCE; LAWYERS' ASSOCIATION
                                FOR WOMEN, MARION GRIFFIN
ROBERT H. WATSON, JR.           CHAPTER, and TENNESSEE LAWYERS
JOHN C. DUFFY                   ASSOCIATION FOR WOMEN:
Knoxville
                                CHRISTINA NORRIS
                                Nashville
FOR AMICUS CURIAE, TENNESSEE
ASSOCIATION OF LEGAL SERVICES:

THEODORE R. KERN
Knoxville

Judge:HOLDER

First Paragraph:

This case comes to us on a certified question of law.  The petitioner,
Mary Matthews, filed this action in the United States District Court
against the respondents, Pickett County, Tennessee, Larry Peek, and Dana
Dowdy.  The district court held that the petitioner's negligence action
was barred by the public duty doctrine, which shields public entities
and public employees from tort liability for injuries caused by a breach
of a duty owed to the public at large.  The petitioner appealed to the
Sixth Circuit Court of Appeals.  The Sixth Circuit Court of Appeals
certified the following question for our resolution:  "May the existence
of an order of protection give rise to a 'special duty' to protect, and,
if so, does the special duty extend to the protection of property?"  We
accept certification and hold under the facts of this case that the
special duty exception to the public duty doctrine is applicable. 
Accordingly, the respondents may be held liable for the petitioner's
damages under the Governmental Tort Liability Act ("GTLA"), Tenn. Code
Ann. S 29-20-201 et seq.

http://www.tba.org/tba_files/TSC/Mattmary_opn.WP6






NPS ENERGY SERVICES, INC.
VS.
WILLIAM E. RANKIN

Court:TSC

Judgement Order

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 It is, therefore, ordered
that the Panel's findings of fact and conclusions of law are adopted and
affirmed, and the decision of the Panel is made the judgment of the
Court. Costs will be paid by defendant/appellant, for which execution
may issue if necessary. IT IS SO ORDERED on June 15, 1999.

http://www.tba.org/tba_files/TSC/Nps_jo.WP6






NICK ALLEN PARKER
VS.
TRAVELER'S INDEMNITY COMPANY
and THE AETNA CASUALTY AND      
SURETY COMPANY

Court:TSC

Judgement Order

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 It is, therefore, ordered
that the Panel's findings of fact and conclusions of law are adopted and
affirmed, and the decision of the Panel is made the judgment of the
Court. Costs will be paid by defendants/appellants, for which execution
may issue if necessary. IT IS SO ORDERED on June 15, 1999.

 http://www.tba.org/tba_files/TSC/Park_jo.WP6






County Junvenile Court
S.M.C. and J.L.C.               
Nos. 08-06-49 & 9619-24593

Court:TCA

Attorneys:                          
Thomas H. Miller
Franklin, Tennessee
Attorney for Petitioner/Appellant, David Edward Chaphe, Jr.

J. Michael O'Neil
Nashville, Tennessee
Attorney for Petitioner/Appellant, Sonya Chaphe

Paul G. Summers, Attorney General & Reporter
Douglas Earl Diamond, Assistant Attorney General
Nashville, Tennessee
Attorney for Respondent/Appellee

Judge:SHOOKHOFF

First Paragraph:

Respondents David Edward Chaphe, Jr. ("Mr. Chaphe") and Sonya Chaphe
("Mrs. Chaphe") (collectively "Chaphes" or "Appellants") appeal from the
judgement of the Juvenile Court which terminated the Chaphes' parental
rights to daughter, S.M.C. and son, J.L.C.

http://www.tba.org/tba_files/TCA/Chaphe_opn.WP6






KATHERINE THERESA DeVAULT
VS.
JAMES CANON DeVAULT, JR

Court:TCA

Attorneys: 
                         
LEW CONNER
JAMES H. DRESCHER
Stokers & Bartholomew, P.A.
424 Church Street, Suite 2800  
Nashville, Tennessee  37219
    ATTORNEYS FOR PLAINTIFF/APPELLEE


KARLA C. HEWITT
Hatchett & Hewitt
211 Donelson Pike, Suite 4
Nashville, Tennessee  37214
    ATTORNEY FOR DEFENDANT/APPELLANT
    
Judge:CAIN

First Paragraph:

This appeal involves a dispute over child support for the parties' two
minor children.  The trial court denied the Father's petition to modify
the support as it had been set in the final decree.  In addition, the
court placed a lien on two of the Father's properties and awarded fees
to the Mother's attorney.  On appeal, we affirm the court's decision
with regard to child support and attorney fees.  However, regarding the
lien, we modify the trial court's decision such that a lien remains on
only one of the Father's properties.  Accordingly, the decision of the
trial court is affirmed as modified and remand for further proceedings.

http://www.tba.org/tba_files/TCA/Devaultk_opn.WP6






KENTUCKY NATIONAL   
INSURANCE CO.
VS.
ROBERT G. GARDNER and,  
SANDRA L. GARDNER

Court:TCA

Attorneys:  
                        
J. R. Slobey,
BLACKBURN, SLOBEY, FREEMAN & HAPPELL, P.C., Nashville, Tennessee
Attorney for Plaintiff/Counter-Defendant/Appellant.


F. Dulin Kelly,
Clinton L. Kelly,
Andy L. Allman,
KELLY & KELLY, Hendersonville, Tennessee
Attorneys for Defendants/Counter-Plaintiffs/Appellees.

Judge:FARMER

First Paragraph:

Plaintiff Kentucky National Insurance Company appeals the trial court's
judgment awarding Defendants/Appellees Robert G. and Sandra L. Gardner
the sum of $56,750 under a commercial property insurance policy that
Kentucky National previously had issued to the Gardners.  The trial
court's judgment also awarded the Gardners $14,062.50 in prejudgment
interest.  We reverse the trial court's judgment based upon our
conclusion that the court erred in failing to enforce a provision of the
insurance policy which prohibited the Gardners from taking any action
after a loss that would impair Kentucky National's subrogation rights.

http://www.tba.org/tba_files/TCA/Kentuckn_opn.WP6






STATE OF TENNESSEE
VS.
STEVE CLICK, JR.,

Court:TCCA

Attorneys:                          
FOR THE APPELLANT:                  FOR THE APPELLEE:


MACK GARNER                         PAUL G. SUMMERS     
District Public Defender            Attorney General & Reporter
419 High Street
Maryville, TN  37804                TODD R. KELLEY
                                    Assistant Attorney General
GERALD L. GULLEY, JR., ESQUIRE      425 Fifth Avenue North
P.O. Box 1708                       2nd Floor, Cordell Hull Bldg.
Knoxville, TN  37901                Nashville, TN 37243
                            
                                    MICHAEL L. FLYNN
                                    District Attorney General
                            
                                    KIRK ANDREWS
                                    Assistant District Attorney 
                                    363 Court Square
                                    Maryville, TN  37804
                            
Judge:CLARK

First Paragraph:

The appellant, Steve Click, Jr., appeals as of right the sentencing
determination of the Blount County Circuit Court.  He pled guilty to
four counts of aggravated burglary, a Class C felony, three counts of
theft over $1,000.00, a Class D felony, and one count of theft over
$500.00, a Class E felony.  The trial court sentenced him as a Range I
standard offender to serve  three-year sentences for each aggravated
burglary, two-year sentences for each count of theft over $1,000.00, and
a one-year sentence for the count of theft over $500.00.  All sentences
were run concurrent to one another.  Appellant also received a two-year
consecutive sentence for the Class E felony offense of theft over
$500.00 committed while he was released on bond following his arrest on
the original charges.  The sole issue on appeal is whether the trial
court abused its discretion in failing to impose an alternative
sentence.  Following our review of the record, we affirm the judgment of
the trial court.

http://www.tba.org/tba_files/TCCA/Click_doc.WP6






STATE OF TENNESSEE
VS.
THOMAS I. FREEMAN, JR

Court:TCCA

Attorneys:                          
FOR THE APPELLANT:          FOR THE APPELLEE:


MACK GARNER                 PAUL G. SUMMERS     
District Public Defender    Attorney General & Reporter
419 High Street
Maryville, TN  37804        TODD R. KELLEY
                            Assistant Attorney General
                            425 Fifth Avenue North
                            2nd Floor, Cordell Hull Bldg.
                            Nashville, TN 37243
                            
                            MICHAEL L. FLYNN
                            District Attorney General
                            
                            KIRK ANDREWS
                            Assistant District Attorney 
                            363 Court Square
                            Maryville, TN  37804
                            
Judge:CLARK

First Paragraph:

The appellant, Thomas I. Freeman, Jr., appeals as of right the
sentencing decision of the Blount County Circuit Court.  The appellant
pled guilty to one count of aggravated burglary, a Class C felony, and
one count of theft under $500.00, a Class A misdemeanor.  The length and
manner of service of sentence were determined by the trial court at a
sentencing hearing.  The court sentenced the appellant to four years six
months for aggravated burglary and eleven months twenty-nine days at 70%
for theft.  The sentences were run concurrently.  The appellant was
required to serve one year in the county jail followed by three years
six months of supervised probation, including one year of intensive
probation.  After a review of the record, we affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TCCA/Freeman_doc.WP6






STATE OF TENNESSEE
VS.
WILLIAM D. WARE 

Court:TCCA

Attorneys:                          
FOR THE APPELLANT:          FOR THE APPELLEE:

JOHN S. COLLEY, III         JOHN KNOX WALKUP
P. O. Box 1476              Attorney General and Reporter
Columbia, TN  38402-1476
                            DARYL J. BRAND
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN  37243

                            THOMAS M. BOTTOMS
                            District Attorney General

                            JESSE DURHAM
                            Assistant Attorney General
                            252 N. Military Ave., Ste. 202
                            Lawrenceburg, TN  38464
                        
Judge:SMITH

First Paragraph:

In February of 1995, the Wayne County Grand Jury indicted Appellants
William D. Ware and Virginia Ware for manufacture of marijuana and also
indicted Mr. Ware for manufacture of LSD.  Appellants subsequently filed
a motion to suppress all evidence that was seized from their property
and from an adjoining neighbor's property by the police on September 29
and 30, 1994.  The trial court conducted a hearing on the motion to
suppress on July 3, 1996.  Appellants then filed a supplemental motion
to suppress on July 12, 1996.  By letter dated August 14, 1996, the
trial court denied the motion to suppress.  On August 15, 1996,
Appellants asked the trial court to address the search of the adjoining
neighbor's property where the LSD was found.  The trial court
subsequently entered an order on March 4, 1997, that denied the motion
to suppress in its entirety.  Appellants pled guilty to the above
charges on August 13, 1997.  That same day, the trial court sentenced
Mr. Ware to a term of eight years for the LSD conviction, with one year
of confinement followed by seven years of probation.  The trial court
also sentenced Ms. Ware to two years of probation for the marijuana
conviction.  After a sentencing hearing on October 9, 1997, the trial
court sentenced Mr. Ware to a term of two years for the marijuana
conviction, with seven months of confinement followed by one year and
five months of probation.  Both Appellants challenge their convictions
and Mr. Ware challenges his sentence for the marijuana conviction,
raising the following issues: 
1) whether the helicopter surveillance of their property from an
altitude of 300 feet violated Appellants' constitutional rights;
2) whether the search warrant was tainted by an earlier warrantless
entry onto Appellants' property; 
3) whether the search of an adjoining neighbor's property violated
Appellants' rights; and
4) whether the trial court should have imposed full probation for the
sentence for Mr. Ware's marijuana conviction.

After a review of the record, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/Warewill_opn.WP6

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