October 25, 1999
Volume 5 -- Number 146

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):
 
02 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
11 New Opinion(s) from the Tennessee Court of Appeals
04 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


STATE OF TENNESSEE
VS.
CHARLES D. FOWLER

WITH DISSENTING OPINION 

Court:TSC

Attorneys:  

FOR APPELLANT:                  FOR APPELLEE:

PAUL G. SUMMERS                 ROBERT S. PETERS
Attorney General and Reporter   Winchester

MICHAEL E. MOORE
Solicitor General

DARYL J. BRAND
Associate Solicitor General
Nashville                        

Judge: HOLDER

First Paragraph:

We granted this appeal to determine whether payment by a fifty-three-
year-old male for "straight sex" with what he perceived to be a
fifteen-year-old boy could constitute a substantial step toward the
commission of statutory rape.  Upon review, we hold that the evidence
in this case supported the jury's finding that the defendant's conduct
constituted a substantial step toward the commission of statutory
rape.  The decision of the Court of Criminal Appeals is reversed, and
the defendant's conviction for attempted statutory rape is reinstated.

http://www.tba.org/tba_files/TSC/FOWLERCD.wpd

DISSENTING OPINION:
http://www.tba.org/tba_files/TSC/FowlerD_dis.wpd





GERALDINE GARRETT
VS.
TOWN OF LIVINGSTON, TN and AETNA CASUALTY and SURETY COMPANY

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 ...

http://www.tba.org/tba_files/TSC/Garrett_wc.wpd





WADDELL GRAY
VS.
UNITED PARCEL SERVICE, INC.
OHIO d/b/a UNITED PARCEL
SERVICE and LIBERTY MUTUAL
FIRE INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellants:                 For the Appellee:

Richard D. Click                    Roscoe A. Feild
Eugene Stone Forrester, Jr.         239 Adams Avenue
Farris, Mathews, Branan & Hellen    Memphis, TN  38103  
One Commerce Square, Suite 2000 
Memphis, TN  38103                              

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).

http://www.tba.org/tba_files/TSC_WCP/Graywadd.wpd





JAMES R. BALDWIN
VS.   
THE KNOX COUNTY BOARD OF EDUCATION

Court:TCA

Attorneys: 

THOMAS R. HENLEY of LUFKIN, HENLEY & CONNER, Knoxville, for Appellant

RICHARD T. BEELER, Knox County Law Director, and MARY ANN STACKHOUSE,
Deputy Law Director, for Appellee

Judge: GODDARD

First Paragraph:

This appeal involves an action for back wages by James R. Baldwin, the
Plaintiff/Appellant and a former employee of the Knox County School
Board, the Defendant/Appellee.  Mr. Baldwin argues that he is owed
approximately $32,187 in wages.  Upon the filing of his complaint, Mr.
Baldwin moved for summary judgment, and the Board likewise moved for
summary judgment on the ground of res judicata when it filed its
answer to Mr. Baldwin's complaint.

http://www.tba.org/tba_files/TCA/baldwinjam.wpd





SALLY SUTTON BRITT
VS.
BOBBY GLENN BRITT

Court:TCA

Attorneys: 

ROBERT D. ARNOLD of ARNOLD, HAYNES & SANDERS, Johnson City, for
Appellant

JUDITH FAIN, Johnson City, for Appellee                         

Judge: GODDARD

First Paragraph:

This appeal involves an action to determine whether the Trial Court
erred in its division of the marital estate.  Sally Sutton Britt, the
Plaintiff/Appellant, presents as her sole issue, which we restate,
whether the Trial Court erred in its valuation of her Civil Service
Retirement Account in its division of the marital estate in her
divorce from Bobby Glenn Britt, the Defendant/Appellee.

http://www.tba.org/tba_files/TCA/brittsal.wpd





REGINA L. CABLE
VS.
CHARLES EDWARD CLEMMONS, JR.

Court:TCA

Attorneys: 

JONATHAN A. MOFFATT OF KNOXVILLE FOR APPELLANT

THEODORE R. KERN OF KNOXVILLE FOR APPELLEE
                         

Judge: GODDARD

First Paragraph:

Appellant Charles E. Clemmons, Jr., appeals an order entered in a
hearing contending he had violated a previous no contact order of
protection entered by the Trial Court in favor of Appellee Regina L.
Cable.


http://www.tba.org/tba_files/TCA/cablereg.wpd





CHATTANOOGA ASSOCIATES, LIMITED PARTNERSHIP
VS.
CHEROKEE WAREHOUSES, INC

Court:TCA

Attorneys: 

For the Appellant:                  For the Appellee:
Frank P.  Pinchak                   Bruce C.  Bailey
WITT, GAYTHER & WHITAKER, P.C.      CHAMBLISS, BAHNER & STOPHEL, P.C.
1100 SunTrust Bank Building         1000 Tallan Building
736 Market Street                   Two Union Square
Chattanooga, TN 37402-4856          Chattanooga, TN 37402                         

Judge: SWINEY

First Paragraph:

This is an appeal from an Order of the Chancery Court of Hamilton
County awarding Plaintiff  $46,249.47 for the cost of construction
(repaving) on the parking lot of a storage warehouse which Chattanooga
Associates Limited Partnership ("Plaintiff") leased to Cherokee
Warehouses, Inc. ("Defendant"), plus late fee and attorney's fees,
under the terms of the Lease, for a total judgment of $71,288.77.

http://www.tba.org/tba_files/TCA/chattan.wpd





JOHNNY J. CRASS, JR.
VS.
STATE OF TENNESSEE

Court:TCA

Attorneys: 

For the Appellants:             For the Appellee:
Johnny Joe Crass, Jr.           Paul G. Summers
7204 Larkspur Lane Lot 47       Attorney General and Reporter
Powell, TN 37849                
                                Arthur Crownover II
                                Assistant Attorney General
                                Civil Rights and Claims Division
                                Cordell Hull Building, 2nd Floor
                                425 Fifth Avenue North
                                Nashville, TN 37243-0488                         

Judge: SWINEY

First Paragraph:

This is an appeal from an Order of the Tennessee Claims Commission
which dismissed the Petitioner/Appellant's claim for false
imprisonment.  The dismissal by the Claims Commission was based upon
its determination that Appellant had not stated a cause of action
subject to the jurisdiction of the Commission, and that Appellant had
failed to file his claim within the applicable one year statute of
limitations.

http://www.tba.org/tba_files/TCA/crass-3.wpd





JOHN DAVIS, and wife CLAUDIA DAVIS, d/b/a/ C & J ENTERPRISES
VS.
MICHAEL E.  McINERNEY and KOTZ AND SANGSTER, P.C.,

Court:TCA

Attorneys: 

For the Appellants:             For the Appellee
Arthur M. Fowler                Kotz & Sangster, P.C.:
McKinnon, Fowler, Fox           Rick J.  Bearfield
& Taylor                        Suite 1, Wesley Plaza
130 East Market Street          2513 Wesley Street
Johnson City, TN 37604-5711     P.  O.  Box 4210 CRS
                                Johnson City, TN 37602
                                                                         
For the Appellee
Michael E.  McInerney:
Michael McInerney, Pro Se

Judge: SWINEY

First Paragraph:

This is an appeal from an Order of the Chancery Court for Johnson
County granting Defendants' Motion for Summary Judgment.  Appellant
raises the issue of whether the Trial Court erred in granting summary
judgment.  Appellees contend the existence of a contract of guaranty
is a question of law for the Court, which the Court properly decided
based on undisputed facts, and that the Trial Court properly granted
summary judgment.  For the reasons herein stated, we reverse the
judgment of the Trial Court and remand the case to the Trial Court for
further proceedings consistent with this Opinion.

http://www.tba.org/tba_files/TCA/davis.wpd





CAROLYN B. ERWIN
VS.
METHODIST MEDICAL CENTER OF OAK RIDGE

Court:TCA

Attorneys: 

For the Appellant:                  For the Appellee:
J. Anthony Farmer                   Robert W. Knolton
Knoxville                           Knoxville                         

Judge: SWINEY

First Paragraph:

This is an appeal from the Trial Court's dismissal of a negligence
action brought against Methodist Medical Center of Oak Ridge,
Defendant/Appellee, arising from a workplace injury to
Plaintiff/Appellant, an employee of a contract service provider.  In
addition to filing suit against her direct employer under the
Tennessee Workers' Compensation Act, Plaintiff sued Defendant in tort,
alleging negligence related to her workplace injury.  Defendant moved
for dismissal under Tenn. R. Civ. P. Rule 12.02(6), asserting immunity
from tort suit under the exclusive remedy provision of the Tennessee
Workers' Compensation Act.  The Trial Court dismissed the cause of
action, finding that Defendant was a principal contractor under Tenn.
Code Ann. S 50-6-113.  For the reasons herein stated, we affirm the
Trial Court's dismissal of Plaintiff's tort action.

http://www.tba.org/tba_files/TCA/ErwinC.wpd





IN RE: THE ESTATE OF FRED FILYAW
 
George Pritchett and Barbara Pritchett
VS.
HARVEY LUNSFORD

Court:TCA

Attorneys: 

For the Appellants:             For the Appellee:
John W. Cleveland               Vance L. Baker, Jr.
CLEVELAND & CLEVELAND           114 Washington Ave. 
120 W. Morris Street            P. O. Box 1085
Sweetwater, TN 37874            Athens, TN 37371-1085                         

Judge: SWINEY

First Paragraph:

This is an appeal from an Order of the Probate Court of McMinn County
which denied the claim of George and Barbara Pritchett ("Appellants")
against the estate of Fred Filyaw for meals they provided to the
decedent over a period of eight years.  The sole issue presented for
appeal is whether the Probate Court erred in denying Appellants' claim
for reimbursement for meals  furnished to Mr. Filyaw by the Appellants
over the eight year period.  We affirm the judgment of the Probate
Court.

http://www.tba.org/tba_files/TCA/filyaw_dra.wpd





SONJA FOX, Attorney-In-Fact For Johnny Fox
VS.
RON OSTERHOUT and SANDRA OSTERHOUT

Court:TCA

Attorneys:  

RON OSTERHOUT and TANA OSTERHOUT, APPELLANTS, Pro Se

ROBIN S. KUYKENDALL OF KNOXVILLE FOR APPELLEE                         

Judge: GODDARD

First Paragraph:

Ron Osterhout and Tana Osterhout appeal a judgment of the Johnson City
Law Court that ordered the return of a 1988 Mazda pickup truck to
Johnny Fox, which Mr. Osterhout insists had been sold to him by Mr.
Fox.  The judgment also taxed costs of the case against Mr. and Mrs.
Osterhout.

http://www.tba.org/tba_files/TCA/foxson_opn.wpd





TERESA D. GILLENWATERS
VS.
JAMES E.W. GILLENWATERS, III

Court:TCA

Attorneys: 

JOHN D. LOCKRIDGE and SCARLETT A. BEATY, LOCKRIDGE, VALONE & BEATY,
PLLC, Knoxville, for Appellant.

MARTHA MEARES and ANNE M. STAIR, Maryville, for Appellee.                         

Judge: FRANKS

First Paragraph:

In this divorce action, the Trial Judge awarded custody of the
parties' child to the father, which custody award is the sole issue on
appeal by the mother.

http://www.tba.org/tba_files/TCA/gillenwtrst.wpd





CHERYL GREEN, individually and on behalf of SEAN ENIX
VS.
HAMBLEN COUNTY BOARD OF EDUCATION and LESLIE BROOKS

Court:TCA

Attorneys: 

For the Appellant:              For the Appellee:
Michael C. Murphy               Janet L. Hogan
Morristown                      Knoxville                         

Judge: SWINEY

First Paragraph:

This is an appeal from the Trial Court's grant of
Defendants'/Appellees' motion to dismiss a negligence suit arising
from an injury to a student in a public school gym class, where suit
was originally filed in Hamblen County General Sessions Court and
"transferred" by the General Sessions Judge to Hamblen County Circuit
Court under the exclusive jurisdiction provision of the Tennessee
Governmental Tort Liability Act, Tenn. Code Ann.S 29-20-101 et seq. 
Upon motion of Defendants, the Circuit Court found the claims of
Plaintiff Cheryl Green barred by operation of the one year statute of
limitations, and the Defendants immune to tort negligence claims of
minor Plaintiff Sean Enix under Tenn Code Ann. S 29-20-205 as
discretionary functions.  For the reasons stated herein, the Order of
the Trial Court is affirmed dismissing Plaintiff Green's claims,
reversed as to Plaintiff Sean Enix's claims, and remanded to the Trial
Court for further proceedings consistent with this Opinion on the
claims of Sean Enix.

http://www.tba.org/tba_files/TCA/Greenc.wpd





STATE OF TENNESSEE
VS.
WILLIAM R. BEGLEY, III

Court:TCCA

Attorneys:  

For the Appellant:              For the Appellee:

Leslie Hale                     Paul G. Summers
Assistant Public Defender       Attorney General of Tennessee
Post Office Box 889             and
Blountville, TN 37617           Marvin S. Blair, Jr.
(AT TRIAL)                      Assistant Attorney General of Tennessee
                                425 Fifth Avenue North      
                                Nashville, TN 37243
Larry S. Weddington
200 Seventh Street
Bristol, TN 37620
(ON APPEAL)                        

Judge: TIPTON

First Paragraph:

The defendant, William R. Begley, III, was convicted in the Sullivan
County Criminal Court upon his no contest pleas to one count of
possession of marijuana, a Class A misdemeanor; eight counts of theft
of property less than five hundred dollars, a Class A misdemeanor; and
fifteen counts of vandalism of property valued over five hundred
dollars, a Class E felony.  He received an effective sentence of six
years in the Department of Correction as a Range I, standard offender.
 In this appeal as of right, the defendant contends that he should
have received a community corrections sentence.  We affirm the
sentence imposed by the trial court.

http://www.tba.org/tba_files/TCCA/Begley.wpd





STATE OF TENNESSEE
VS.
CRAIG STEPHEN BOURNE

Court:TCCA

Attorneys: 

For Appellant:                  For Appellee:

Joseph S. Harrison              Paul G. Summers 
Office of the Public Defender   Attorney General and Reporter
P.O. Box 839
Blountville, TN  37617          Todd R. Kelley  
                                Assistant Attorney General
Gale K. Flanary                 425 Fifth Avenue North 
Assistant Public Defender       Second Floor, Cordell Hull Building
266 Blountville Bypass          Nashville, TN  37243-0493
Blountville, TN  37617
and                             Teresa Murray-Smith 
Gerald L. Gulley, Jr.           and 
Contract Appellate Defender     Greg Newman 
P.O. Box 1708                   Assistant District Attorneys General
Knoxville, TN  37901-1708       P.O. Box 526
(on appeal)                     Blountville, TN  37617                         

Judge: WADE

First Paragraph:

The defendant, Craig Stephen Bourne, was convicted of attempted second
degree murder, aggravated burglary, and especially aggravated
kidnaping.  The trial court imposed an eight-year sentence for
attempted second degree murder, a six-year sentence for aggravated
burglary, and a twenty-five year sentence for especially aggravated
kidnaping.  Because the sentences for attempted second degree murder
and especially aggravated kidnaping were ordered to be served
consecutively, the effective sentence is thirty-three years.  The
trial court imposed fines totaling $48,250.00 for the three offenses.

http://www.tba.org/tba_files/TCCA/Bournecs.wpd





STATE OF TENNESSEE
VS.
MATTHEW S. FITZGERALD

Court:TCCA

Attorneys:  

For Appellant:          For Appellee:

Michael G. Hatmaker     Paul G. Summers 
Attorney                Attorney General and Reporter
P.O. Drawer 417             
571 Main Street         Michael J. Fahey, II
Jacksboro, TN  37757    Assistant Attorney General
                        Criminal Justice Division
                        425 Fifth Avenue North 
                        Nashville, TN  37243

                        Paul Phillips
                        District Attorney General
                        P.O. Box 10
                        Huntsville, TN  37756 

                        Michael O. Ripley 
                        Assistant District Attorney General
                        P.O. Box 323
                        Jacksboro, TN  37757                        

Judge: WADE

First Paragraph:

The defendant, Matthew S. Fitzgerald, was convicted of two counts of
child endangerment, Class A misdemeanors.  Tenn. Code Ann.  S
55-10-414(1).  The trial court merged the judgment on Count Two into
Count One and imposed an eleven-month, twenty-nine day sentence at
seventy-five percent.  The defendant was ordered to serve thirty days
in jail, had his driver's license revoked, and was fined $1,000.00.

http://www.tba.org/tba_files/TCCA/Fitzgrdm.wpd





STATE OF TENNESSEE
VS.
CHARLES ERIC GOODWIN

Court:TCCA

Attorneys: 

For Appellant:                  For Appellee:

Allen R. Beard, Attorney        Paul G. Summers
615 Lindsay Street, Suite 110   Attorney General and Reporter
Chattanooga, TN  37403-0110     
                                R. Stephen Jobe
                                Assistant Attorney General
                                Criminal Justice Division
                                425 Fifth Avenue North 
                                Second Floor, Cordell Hull Building
                                Nashville, TN  37243-0493

                                C. Leland Davis 
                                and
                                Caldwell Huckabay
                                Assistant District Attorneys General
                                City and County Courts Building 
                                Chattanooga, TN  37402                         

Judge: WADE

First Paragraph:

The defendant, Charles Eric Goodwin, was convicted in a bench trial of
the second degree murder of Gregory Billups, Jr., and the attempted
second degree murder of Eddie Birdsong.  The trial court imposed
concurrent, Range I sentences of twenty-five years and twelve years,
respectively.  In this appeal of right, the defendant challenges the
sufficiency of the evidence as to each conviction and contends that
certain of the testimony should not have been excluded from
consideration.

http://www.tba.org/tba_files/TCCA/Goodwinc.wpd

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