TBALink Opinion-Flash

December 24, 1996 -- Volume #2 -- Number #122

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.

This Issue IN THIS ORDER:
01-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
09-New Opinons From TCA
03-New Opinons From TCCA

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George Dean
TBALink Chief Editor


ROGER A. PERRY
vs. 
SENTRY INSURANCE COMPANY,
LARRY BRINTON, JR., DIRECTOR, DIVISION OF WORKERS' COMPENSATION,
TENNESSEE DEPARTMENT OF LABOR, SECOND INJURY FUND

Court:TSC

For Plaintiff-Appellee:             For Defendant-Appellee:
Ward S. Whelchel                    James T. Shea, IV
C. Edward Daniel                    Baker, McReynolds, Byrne,
Knoxville                           Brackett, O'Kane & Shea
                                    Knoxville

                                    For Defendant-Appellant:
                                    Anne T. Widseth
                                    Knoxville

                                    Sandra E. Keith
                                    Assistant Attorney General
                                    Nashville
    
                                    Charles W. Burson
                                    Attorney General & Reporter 
                                    Nashville                          

Judge: REID

First Paragraph:

This case presents for review the decision of the Chancery Court of
Union County apportioning a workers' compensation award for permanent
total disability between the employer and the Second Injury Fund.  The
trial court found the award is controlled by Tenn. Code Ann. S
50-6-208(a) (Supp. 1996).  A Workers' Compensation Panel, upon
reference for findings of fact and conclusions of law pursuant to
Tenn. Code Ann. S 50-6-225(e)(5) (Supp. 1996), found the award is
controlled by section (b) of Tenn. Code Ann. S 50-6-208.  The judgment
of the trial court is affirmed as modified.

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

STEVE BEST  
vs.                      
SOUTHERN SKILLET CORPORATION

Court:TCA

HARRY WIERSEMA, JR., OF KNOXVILLE FOR APPELLANT
H. ALLEN BRAY OF MARYVILLE FOR APPELLEES                         

Judge: Goddard

First Paragraph:

This is a suit by Steve Best against his former employer, Southern
Skillet Corporation and other related entities, first seeking to
recover for their failure to pay him overtime under the Fair Labor
Standards Act of 1938 (29 U.S.C. 201, et seq.) in connection with his
employment.  The second count of the complaint seeks damages for
breach of contract because the Defendants had failed to honor their
agreement to provide him certain benefits when he was employed.
VACATED AND REMANDED.

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

BARBARA BRADLEY as administratrix of the estate of PAUL J. BRADLEY
vs.
DR. JOHN M. FOX

Court:TCA

For Appellant                   For Appellee

DAVID E. WAITE                  DARRYL G. LOWE
CLINT J. WOODFIN                LISA A. LOWE
Brown & Waite                   Lowe, Shirley & Yeager
Knoxville, Tennessee            Knoxville, Tennessee                          

Judge: Susano

First Paragraph:

This dental malpractice case was brought by Barbara Bradley,
administrator of the estate of her son, Paul J. Bradley, seeking
damages for his wrongful death.  Mr. Bradley, a 32-year old diabetic,
died as a result of Ludwig's Angina, a condition which developed from
a severe infection after his tooth was extracted by the defendant
dentist, Dr. John M. Fox.  Ms. Bradley alleges, among other things,
that Dr. Fox failed to appropriately administer antibiotics to her
son, and that this failure proximately caused the condition that led
directly to his death.  Following the close of Ms.  Bradley's proof,
the trial court directed a verdict in favor of Dr. Fox, on the ground
that the plaintiff had not proven that Dr. Fox's failure to administer
antibiotics was the proximate cause of Paul J. Bradley's death.  Ms.
Bradley appeals. AFFIRMED AND REMANDED.

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

STEVEN BROOKS
vs.
NETWORKS OF CHATTANOOGA, INC.,
D/B/A CONNECTING POINT COMPUTER
OF CHATTANOOGA, ROBERT KNOWLING
and FRANK BLAIR, III

Court:TCA

WILLIAM H. HORTON, Horton, Maddox & Anderson, PLLC, Chattanooga, for
Appellants Networks of Chattanooga, Inc., and Robert E. Knowling.
FLOSSIE WEILL, Weill & Weill, Chattanooga, for Steven Brooks.
                          
Judge: McMurray

First Paragraph:

This appeal involves the interpretation of a written lease agreement. 
The plaintiff-appellant, Steven Brooks, purchased a commercial
building in Chattanooga in which Networks of Chattanooga operated a
computer store known as Connecting Point Computer of Chattanooga. 
Networks and its president, Robert E. Knowling, were  defendants in
the case below and also raise issues on appeal. AFFIRMED IN PART,
VACATED IN PART, REVERSED IN PART AND REMANDED.

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


BRENDA EDMUNDSON
v.
DENNIS and WILMA PRATT, and DETECTIVE LARRY JOHNSON 
and KNOX COUNTY SHERIFF'S DEPARTMENT

Court:TCA

For Appellant                   For Appellees
                                Larry Johnson and Knox
Brenda Edmundson, Pro Se        County Sheriff's Department
Knoxville, Tennessee            
                                MARY ANN STACKHOUSE
                                Deputy Knox County Law Director
                                Knoxville, Tennessee

                                For Appellees
                                Dennis and Wilma Pratt

                                CARL W. ESHBAUGH
                                Eshbaugh, Simpson and Varner
                                Knoxville, Tennessee                          

Judge: Susano

First Paragraph:

The plaintiff filed a civil warrant in the Knox County General
Sessions Court for false arrest and other related matters.  After an
adverse judgment there, the plaintiff appealed to Circuit Court.  On
June 17, 1996, an order was entered in that court dismissing the
plaintiff's causes of action against defendants Larry Johnson and the
Knox County Sheriff's Department.  This case was finally concluded at
the trial court level when the suit against the remaining defendants,
Dennis Pratt and Wilma Pratt, was dismissed on their motion by
judgment entered August 6, 1996.  On Friday, September 6, 1996, the
thirty-first day following the entry of the judgment, the plaintiff
filed a notice of appeal. APPEAL DISMISSED REMANDED.

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

PERRY HART and wife REBA HART
vs.
TOMMY CASEY

JO ALICE CASEY, FIRST NATIONAL 
BANK OF JACKSON, EMC MORTGAGE 
COMPANY AND WESTERN UNITED 
ASSURANCE COMPANY

Court:TCA

Ricky L. Wood of Parsons
For Plaintiffs-Appellants

J. Alan Rheney and Jonathan O. Steen
Spragins, Barnett, Cobb & Butler of Jackson
For Defendant-Appellee                          

Judge: CRAWFORD

First Paragraph:

This appeal involves a "land sale - purchase agreement" between Perry
Hart and wife, Reba Hart (Buyers) and Tommy Casey (Seller).  Buyers
appeal from the judgment of the trial court finding that the "land
sale - purchase agreement" between the parties had been terminated and
ordering that Seller was the owner of the property. REVERSED AND
REMANDED.

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

VIRGINIA RUTH MATHELY
vs.
JOHNNY G. MATHELY

Court:TCA

Attorney for Appellant          Attorney for Appellee
ALAN R. BEARD                   CHARLES D. PATY
Chattanooga, Tennessee          Paty, Rymer & Ulin, P.C.
                                Chattanooga, Tennessee                          

Judge: Susano

First Paragraph:

This is a post-divorce proceeding.  Virginia Ruth Mathely filed a
complaint against her former husband, Johnny G. Mathely, seeking a
modification of the then-existing order obligating him to pay alimony
in futuro of $100 per week.  Following a hearing, the court modified
its order by increasing the alimony payment to $125 per week,
beginning May 24, 1996, and ending December 31, 1997.  The court's
modification order provides that beginning in 1998, Mr. Mathely's
spousal support obligation will revert to $100 per week.  Husband
appealed, arguing that the trial court erred in awarding a temporary
increase in alimony predicated on medical bills incurred by Ms.
Mathely since the entry of the previous order for alimony.  We affirm.

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

LORENA MAE RICE and husband ALVIS MICHAEL RICE
vs.
KNOXVILLE UTILITIES BOARD and RONALD HANSEN

Court:TCA

JOHN R. ROSSON, JR., Knoxville, for Appellants. DOUGLAS L. DUTTON,
Hodges, Doughty and Carson, Knoxville, for Appellee, Knoxville
Utilities Board. JOHN O. THREADGILL, Knoxville, for Appellee, Ronald
Hansen.
                       
Judge: McMurray

First Paragraph:

This case arose from an accident wherein the plaintiff, Lorena Mae
Rice, fell when she stepped on a water meter cover located on the
property of the defendant, Ronald Hanson, and allegedly controlled by
both Hanson and the Knoxville Utilities Board.  The case was dismissed
on defendants' motions for summary judgment.  This appeal resulted. 
We affirm the judgment of the trial court.

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

JAMES R. STROUD and 
wife, SHELBY JEAN STROUD
vs. 
ESTATE OF JETER EDWARD
WARDREP, JR., JETER E.
WARDREP, III, BILLY E.
HAMRICK, JAMES HAMRICK,
CAROLYN EADS, and
JAMES C. WARDREP

Court:TCA

For Appellants                  For Appellees
DOUGLAS L. DUTTON               EARL S. AILOR
AMY V. HOLLARS                  Knoxville, Tennessee
Hodges, Doughty & Carson
Knoxville, Tennessee                          

Judge: Susano

First Paragraph:

The plaintiffs, James R. Stroud and wife, Shelby Jean Stroud,
proceeding pro se, filed a complaint for specific performance against
the co-executors of the Estate of Jeter Edward Wardrep, Jr., and Mr.
Wardrep's heirs.  They seek to enforce a written contract between them
and the deceased in which the latter agreed to sell them property at
4001 Crestfield Road, Knoxville.  Following a non-jury hearing, the
Chancellor dismissed the complaint. REVERSED AND REMANDED.

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

DAVID MICHAEL WILLIAMS  
vs.     
BETTY JOAN WILLIAMS

Court:TCA

WILLIAM E. FRIEDMAN             ALICE L. GALLAHER
1205 100 North Main Building    A. Wages Law Firm
Memphis, TN 38103               8120 Highway 51 North #7    
Attorney for Appellant          Memphis, TN 38119
                                Attorney for Appellee                          

Judge: INMAN

First Paragraph:

Failure to pay ordered child support generated all of the issues in
this case, one of which is directed to the jurisdiction of the
Chancery Court to entertain the petition for contempt. AFFIRMED IN
PART, REVERSED IN PART, and REMANDED.

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

STATE OF TENNESSEE
vs.
WILLIE LEE BALLARD

Court:TCCA

For Appellant:                          For Appellee:

Hank Hill                               Charles W. Burson
Hank Hill & Associates, Attys., P.C.    Attorney General and Reporter
701 Cherry Street, Suite 200
Chattanooga, Tennessee  37402           Robin L. Harris
                                        Assistant Attorney General
                                        Criminal Justice Division
                                        450 James Robertson Parkway
                                        Nashville, TN   37243-0493

                                        Gary D. Gerbitz
                                        District Attorney General

                                        C. Leland Davis
                                        David Denny
                                        Asst. District Atty General
                                        600 Market Street
                                        Courts Building
                                        Chattanooga, Tennessee  37402                          

Judge: DENDER

First Paragraph:

On April 29, 1995, appellant was found guilty by a jury of two counts
of aggravated assault.  On April 27, 1995, appellant had pleaded
guilty to the offenses of attempted especially aggravated robbery and
attempted aggravated robbery of the same victims of the aggravated
assaults.  On June 30, 1995, the trial court sentenced appellant to
eleven years for attempted especially aggravated robbery, five years
for attempted aggravated robbery and six and five years respectively
on the aggravated assaults.  The trial court found that the appellant
was a dangerous offender and ordered the five year sentence for
attempted aggravated robbery to be served consecutively to the eleven
year sentence for attempted especially aggravated robbery.  The trial
court ordered the sentences for aggravated assault to run concurrently
with the first sentence.  At the hearing on the Motion For New Trial,
the trial court vacated the convictions for aggravated assault and
ruled that those charges merged with the attempted robbery charges. 
This left appellant with a sentence of eleven years plus a sentence of
five years to be served consecutive to the sentence of eleven years,
for a net sentence of sixteen years.  This is appellant's appeal as of
right. SENTENCE MODIFIED.

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

STATE OF TENNESSEE
vs.
STANLEY MATHEWS

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

BRETT B. STEIN              CHARLES W. BURSON
236 Adams Avenue            Attorney General and Reporter
Memphis, TN  38103
                            MICHELLE L. LEHMANN
                            Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN  37243

                            JOHN W. PIEROTTI
                            District Attorney General
    
                            KEVIN R. RARDIN
                            Assistant District Attorney
                            201 Poplar Avenue
                            Memphis, TN  38103                          

Judge: SMITH

First Paragraph:

A Shelby County Criminal Court jury convicted Appellant Stanley
Mathews of driving under the influence.  According to the record,
Appellant, as a third offender, received a sentence of seven months. 
The trial court ordered him to serve 120 days of the sentence followed
by probation for a period of eleven months and twenty-nine days.  In
this appeal, Appellant presents the following issue: whether the
evidence presented at trial is legally sufficient to sustain a
conviction for driving under the influence. AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/MATTHEWS_OP2.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
STANLEY MATHEWS

Court:TCCA

For Appellant:                  For Appellee:
Lionel R. Barrett, Jr.          Charles W. Burson
Washington Square Two, Ste.     417 Attorney General & Reporter
222 Second Avenue, North
Nashville, TN  37201            Christina S. Shevalier
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN  37243-0493                               
                                Tom P. Thompson, Jr. 
                                District Attorney General 

                                John Wootten
                                Asst. District Attorney General
                                203 Greentop Street
                                P.O. Box 178
                                Hartsville, TN 37074-0888                          

Judge: WADE

First Paragraph:

The defendant, Landon Roberts, was convicted of involuntary
manslaughter.  See Tenn. Code Ann. S 39-2-221 (repealed 1989).  The
trial court imposed a two-year sentence, with one year to be served in
the county jail and the remainder suspended.  The sole issue on appeal
is whether the evidence is sufficient to support the conviction.
AFFIRMED.

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

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