TBALink Opinion-Flash

December 17, 1996 -- Volume #2 -- Number #117

Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts.

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00-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
06-New Opinons From TCA
03-New Opinons From TCCA

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TBALink Chief Editor


JOAN DOUGLAS and GERMANTOWN REALTY, INC., d/b/a COLDWELL BANKER
vs. 
FRANK TIBBS and AFSAMEH M. TIBBS

Court:TCA

JAMES H. KEE                        J. MICHAEL FLETCHER
780 Ridge Lake Blvd., Ste. 202      5583 Murray Avenue, Suite 100
Memphis, TN 38120                   Memphis, TN 38119
    Attorney for Appellant              Attorney for Appellee                          

Judge: INMAN

First Paragraph:

This action to recover a commission on the sale of real estate was
dismissed at the close of the plaintiff's case.  She appeals and
presents for review the propriety of the dismissal of her case.
REVERSED and REMANDED.

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

MARY KINDRED, On Her Own Behalf And As Next Of Kin Of Marcus Briggs
VS. 
THE BOARD OF EDUCATION OF MEMPHIS CITY SCHOOLS, ET AL

Court:TCA

Jack McNeil, Memphis 
for Plaintiff/Appellant

Ernest G. Kelly, Jr., EVANS & PETREE, Memphis
for Defendants/Appellees

Judge: FARMER

First Paragraph:

In this wrongful death action, Plaintiff-Appellant Mary Kindred
(Plaintiff), on her own behalf and as next of kin of Marcus Briggs,
appeals the trial court's judgment entered in favor of
Defendants-Appellees Board of Education of Memphis City Schools,
Willie Anderson, and Raybon Hawkins (Defendants). AFFIRMED AND
REMANDED.

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

SAMUEL D. LOWERY, JR.
vs. 
ARLENE FAIRES, individually and as a representative of an association
of persons purportedly acting under the name of Pets are Lovable
Society, a/k/a PALS, DON BIRD, individually and as Deputy Sheriff of
Bradley County

Court:TCA

JAMES F. LOGAN, JR., Logan, Thompson, Miller, Bilbo, Thompson &
Fisher, P.C., Cleveland, for Appellant.

ELAINE B. WINER and KEN E. JARRARD, Rice, Kreitzer & Winer, P.C.,
Chattanooga, for Appellee, Arlene Faires, et al.

ASHLEY L. OWNBY, Cleveland, for Appellee, Pets are Lovable Society
a/k/a PALS.
                       
Judge: MCMURRAY

First Paragraph:

In this case, the trial court dismissed the complaint on motion for
summary judgment.  A motion to amend the complaint was pending at the
time the motion for summary judgment was granted.  The trial court
refused to consider the motion to amend.  This appeal resulted.  We
reverse the judgment of the trial court and vacate the order granting
the summary judgment.

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

TERRY E. McLEESE, JR.   
vs. 
TAMMY LYNN McLEESE

Court:TCA

W. BROWN HAWLEY, II             THOMAS F. VENTIMIGLIA
TERESA McCAIG MARSHALL          7445 Reynoldsburg Rd.
308 W. Washington St.           Springville, TN 38256
Paris, TN 38242                     Attorney for Appellee
    Attorney for Appellant                            

Judge: INMAN

First Paragraph:

Custody of the five-year-old son of these parties was awarded to the
appellee-mother in a post-divorce hearing.  The parties initially
agreed upon joint custody.  The father appeals, complaining
essentially that the Chancellor relied too heavily on the tender years
doctrine.  We cannot substitute our judgment for that of the
Chancellor, but are bound by the limitations imposed by Tenn. R. App.
P., Rule 13(d).  Unless the evidence preponderates against the
judgment, we must affirm.

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

KENNETH DALE NANCE
vs. 
TINA LOUISE NANCE

Court:TCA

W. BROWN HAWLEY, II             THOMAS V. VENTIMIGLIA
TERESA McCAIG MARSHALL          117 East Wood Street
308 W. Washington St.           Paris, TN 38242
Paris, TN 38242                     Attorney for Appellee
    Attorneys for Appellant                         

Judge: INMAN

First Paragraph:

Custody of the five-year old son of these parties was awarded to his
mother, the propriety of which the appellant-father questions.  Our
review of the findings of the trial court is de novo upon the record
of the trial court, accompanied by a presumption of the correctness of
the finding, unless the preponderance of the evidence is otherwise. 
Tenn. Code Ann. S 50-6-225(3)(2).  Stone v. City of McMinnville, 896
S.W.2d 584 (Tenn. 1991).  We cannot substitute our judgment for that
of the trial judge, and we are not positioned to evaluate the
credibility of the parties or their witnesses.

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

SHOLODGE, INC.
vs.
W. MIKE GARY, d/b/a SHONEY'S INN OF CHATTANOOGA

Court:TCA

EUGENE N. BULSO, JR., OF NASHVILLE FOR APPELLANT
ARVIN H. REINGOLD OF CHATTANOOGA FOR APPELLEE                          

Judge: GODDARD

First Paragraph:

This is an appeal from a judgment entered by the Hamilton County
Circuit Court in a suit arising from a dispute over a 30-year hotel
management contract which was terminated three years into its term.
VACATED AND REMANDED.

URL:http://www.tba.org/tba_files/TCA/SHOLODGE_OP2.WP6
Opinion-Flash

BARRY L. CHILDRESS  
vs. 
STATE OF TENNESSEE

Court:TCCA

    For the Appellant:          For the Appellee:
Lisa M. Mack                Charles W. Burson
846 Oak St.                 Attorney General & Reporter
Chattanooga, TN  37403          
                            Elizabeth T. Ryan
                            Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            William H. Cox III
                            District Attorney General

                            Rebecca Stern
                            Assistant District Attorney General
                            11th Judicial District
                            600 Market ST., Ste. 310
                            Chattanooga, TN  37402
                            
Judge: BYERS

First Paragraph:

The defendant was convicted of aggravated burglary on June 26, 1991
and sentenced to serve 15 years at 45% service.  On February 9, 1994,
he filed a petition for post-conviction relief, claiming that his
counsel at the trial and on the original appeal were incompetent.
AFFIRMED.

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

STATE OF TENNESSEE
VS. 
DONNIE HUTCHERSON

Court:TCCA

    FOR THE APPELLANT:               FOR THE APPELLEE:
GUY WILKINSON                   CHARLES W. BURSON
Public Defender                 Attorney General & Reporter

W. JEFFERY FAGAN                WILLIAM DAVID BRIDGERS
Asst. Public Defender           Asst. Attorney General
P.O. Box 663                    450 James Robertson Pkwy.   
Camden, TN 38320                Nashville, TN 37243-0493
                
                                ROBERT RADFORD
                                District Attorney General

                                VICKI SNYDER
                                Asst. District Attorney General
                                Henry County Courthouse
                                Court Sq.
                                Paris, TN 38242

Judge: PEAY

First Paragraph:

The defendant was indicted for selling less than .5 grams of cocaine
and was convicted of this offense by a jury.  After a hearing, he was
sentenced to three years, six months in the Tennessee Department of
Correction and fined ten thousand dollars ($10,000).  In this appeal
as of right, the defendant challenges only the sufficiency of the
evidence.  After a review of the record, we affirm.

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

LARRY DARNELL LAKE
vs. 
STATE OF TENNESSEE

Court:TCCA

W. BROWN HAWLEY, II             THOMAS V. VENTIMIGLIA
TERESA McCAIG MARSHALL          117 East Wood Street
308 W. Washington St.           Paris, TN 38242
Paris, TN 38242                     Attorney for Appellee
    Attorneys for Appellant   
                          
Judge: INMAN

First Paragraph:

The appellant, Larry Darnell Lake, pled guilty, on May 9, 1988, to two
counts of armed robbery.  Subsequently, the Hardeman County Circuit
Court sentenced the appellant to forty years imprisonment on each
count to run concurrently.  No direct appeal was taken.  On April 29,
1989, the appellant timely filed a petition for post-conviction relief
alleging ineffective assistance of counsel.  The trial court dismissed
the petition.  On January 18, 1995, the appellant filed a second
post-conviction petition alleging the ineffectiveness of
post-conviction counsel.  This petition was dismissed as time-barred. 
The appellant now appeals this dismissal.

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

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