TBALink Opinion-Flash

June 03, 1996 -- Volume #2 -- Number #53

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:
00-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
07-New Opinons From TCA
00-New Opinons From TCCA

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Synthia Jo Gaines Benson, v. John Thomas Benson, IV,

Court:TCA

VICKY V. KLEIN
509 Lentz Drive
Madison, Tennessee 37116-0608
ATTORNEY FOR RESPONDENT/APPELLANT


JOHN M. L. BROWN
221 Fourth Avenue North
Second Floor
Nashville, Tennessee 37219
PHILIP E. SMITH
213 Third Avenue North
Nashville, Tennessee 37201
ATTORNEYS FOR PETITIONER/APPELLEE
                       
First Paragraph:


This is an appeal by respondent/appellant, John Thomas
Benson, IV, from a decision of the trial court that awarded
petitioner/appellee, Synthia Jo Gaines Benson, $4,299.83 for
child support arrearages, $3,946.92 for the college expenses
of the parties' son, John Thomas Benson, V, and $750.00 for
attorney's fees.  The pertinent facts are as follows.

Judge: SAMUEL L. LEWIS, JUDGE

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

ROBERT COX, Adminstrator of the Estate of Linda Cox Johnson,
Deceased,
v.
GENERAL CARE CORP.  d/b/a HCA REGIONAL HOSPITAL OF JACKSON,
BEVERLYANN JETTON, NURSE, SHEWANNA MACKEY, RECEPTIONIST, and
JOSEPH RAGON M.D.,

Court:TCA

For the Plaintiff/Appellant:    For the Defendants/Appellees
William A. Cohn                 Sadia S. Staton     
Cordova, Tennessee              Jackson, Tennessee
                   
                                John D. Burleson
                                Jackson, Tennessee
                        
First Paragraph:

This is a wrongful death suit brought by Robert Cox (Cox),
as administrator of the estate of the decedent, Linda Cox
Johnson (Johnson), alleging medical malpractice against
General Care Corporation, d/b/a HCA Regional Hospital of
Jackson (HCA), and several of its emergency room personnel. 
The trial court granted summary judgment to HCA.  Cox
appeals the summary judgment as well as the trial courts
denial of Coxs motions to strike the affidavit of HCAs
expert and amend the Complaint.  Cox also appeals the
alleged denial of a motion to consolidate the case at bar
with a related suit; however, the record is silent as to
what, if any, action the trial court took regarding this
motion.  We affirm the trial courts denial of Coxs motion
to strike the affidavit of HCAs expert and the entry of
summary judgment in favor of HCA.   We find no error
regarding amendment of the Complaint, and the consolidation
issue is pretermitted by our affirmance of the trial courts
entry of summary judgment.

Judge: HOLLY KIRBY LILLARD, JUDGE

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

WOODROW DAVIS AND SAMMIE MAI DAVIS,
v.
PAUL W. BAKER AND PAMELA M. BAKER,

Court:TCA

For the Plaintiffs/Appellants:  For the Defendants/Appellees

John W. Palmer                  Nathan J. Dearing, III
Dyersburg, Tennessee            Dyersburg, Tennessee
                         
First Paragraph:

This is a boundary line dispute involving the ownership and
right of possession of a strip of land lying between the
properties of Plaintiffs, Woodrow Davis and Sammie Mai Davis
("Plaintiffs" or "the Davises"), and Defendants, Paul W.
Baker and Pamela M. Baker ("Defendants" or "the Bakers"). 
After a lengthy bench trial the Chancellor established the
boundary at the fence line erected by the Defendants and
entered judgment accordingly.  The Davises appealed this
decree.  We affirm the decision of the trial court.

Judge: HOLLY KIRBY LILLARD, JUDGE

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

LOUIS DREYFUS CORPORATION,  
v. 
JOE B. HUDDLESTON, Commissioner of Revenue, State of
Tennessee,

Court:TCA

For the Plaintiff/Appellee:     For the Defendant/Appellant:

Charles A. Trost                Charles W. Burson
L. Beth Evans                   Attorney General and Reporter
Waller,Lansden,Dortch & Davis           
Nashville, Tennessee            Michael E. Moore
                                Solicitor General

                                Michael W. Catalano
                                Associate Solicitor General
                        
First Paragraph:

This appeal involves the corporate excise tax liability of a
nondomiciliary corporation that carries on part of its
business in Tennessee.  The Commissioner of Revenue assessed
deficiencies against the corporation because it had not
included in its business income the investment earnings from
the bond trading activities of one of its divisions.  The
corporation disagreed with the assessment but paid the
alleged deficiencies and filed suit in the Chancery Court
for Davidson County.  Following a bench trial, the trial
court found that the income from the bond trading activities
was business income but that the bond trading activities
were not part of the corporations unitary business. 
Accordingly, the trial court ordered the commissioner to
refund $124,475.58 in taxes and interest.  The commissioner
asserts on this appeal that the evidence does not support
the trial courts conclusion that the earnings of the bond
trading division were non-unitary with the earnings of the
corporations other divisions.  We affirm the judgment.

Judge: WILLIAM C. KOCH, JR.

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

FAIRWAY VILLAGE CONDOMINIUM ASSOCIATION, INC., A Non-Profit
Corporation; CARROLL B. CLARK and wife, JEAN CLARK; RONALD
L. HANSEN; GENE J. THARPE and wife, BETTY H. THARPE; EDWARD
J. RICE and wife, SHEILA O. RICE; KENNETH D. WINGERT and
wife, MARGARET D. WINGERT; For Themselves Individually And
As Representatives of a Class,
v.
CONNECTICUT MUTUAL LIFE INSURANCE COMPANY; BOYLE INVESTMENT
COMPANY; S.B. CONDO CORP.,

Court:TCA

David F. Leake,
William King Self,
BENHAM LEAKE, Memphis, Tennessee
Martin B. Daniel, Memphis, Tennessee
Attorneys for Plaintiffs/Appellants.

Ernest G. Kelly, Jr.,
EVANS & PETREE, Memphis, Tennessee
Attorney for Defendants/Appellees.
                      
First Paragraph:

In this class action lawsuit, Plaintiffs-Appellants, Fairway
Village Condominium Association, Inc., Carroll B. and Jean
Clark, Gene J. and Betty Tharpe, Edward J. and Sheila O.
Rice, Kenneth and Margaret D. Wingert and Ronald L. Hansen
appeal the trial courts grant of summary judgment in favor
of Defendants-Appellees, Connecticut Mutual Life Insurance
Company (CMLI), Boyle Investment Company (BIC) and S.B.
Condo Corporation (SBCC).  Plaintiffs are comprised of
individual condominium owners of Fairway Village
Condominiums and their homeowners association.   Defendants
are separate corporations which, according to the
allegations of Plaintiffs complaint, have participated in
the construction, marketing and management of Fairway
Village Condominiums.

Judge: FARMER, J.

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

TEDDIE FUSTON GREENE,       
v.
JEANETTE BAYER, Individually and JEANETTE BAYER, Trustee,

Court:TCA

KEITH S. SMARTT
107 College Street
McMinnville, Tennessee 37110
ATTORNEY FOR PLAINTIFF/APPELLANT

Thomas O. Bratcher
STANLEY & BRATCHER
100 West Main Street
P.O. Box 568
McMinnville, Tennessee 37110
ATTORNEY FOR DEFENDANT/APPELLEE
                          
First Paragraph:

The plaintiff, Teddie Fuston Greene, has appealed from the
summary dismissal of her suit against the defendant,
Jeanette Bayer, individually and as trustee, seeking
partition of their respective interests in certain ancestral
realty.

Judge: HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

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

H. PATRICK HEFFERNAN,
v.
HEFFERNAN, BALLINGER, POUNDS, AND YARBROUGH, INC. and LYNN
H. BALLINGER, CHARLES O. POUNDS and ROBERT A. YARBROUGH,

Court:TCA

Carl H. Langschmidt, Jr.,
ARMSTRONG ALLEN PREWITT GENTRY 
JOHNSTON & HOLMES, Memphis, Tennessee
Attorneys for Defendant/Appellant Heffernan, Ballinger,
Pounds, and Yarbrough, Inc.

Joseph W. Barnwell, Jr.,
EVANS & PETREE, Memphis, Tennessee
Attorney for Plaintiff/Appellee.
                     
First Paragraph:

This litigation was initiated by Appellee, H. Patrick
Heffernan, against Ballinger, Pounds and Yarbrough, Inc.,
formerly Heffernan, Ballinger, Pounds and Yarbrough, Inc.,
and Glen H. Ballinger, Charles O. Pounds and Robert A.
Yarbrough, to recover the earned commissions and share of
corporate profits allegedly due him.  The trial court
referred the matter to the clerk and master who, after a
hearing, determined that Heffernan was entitled to
compensation in the amount of $44,242.92.  The masters
report was affirmed by the chancellor who entered judgment
for Heffernan accordingly.  The Corporation has appealed,
presenting the following issues for our review:
1.  Whether the Chancellor and the Clerk and Master erred in
concluding that Heffernan did not owe Heffernan, Ballinger,
Pounds and Yarbrough, Inc. $15,620.01 for commissions he
placed in his own agency for his personal benefit while he
was still an employee of Heffernan, Ballinger, Pounds and
Yarbrough, Inc.
2.  Whether the Chancellor and Clerk and Master erred in
holding that the corporation should have given Heffernan a
partial distribution of profit of $22,680.
3.  Whether the Chancellor and the Clerk and Master erred in
concluding that the plaintiff  was entitled to receive
commissions which the corporation owed him for the fiscal
year ending May 31, 1987.
4.  Whether the Chancellor and Clerk and Master erred in
concluding that Heffernan did not have to repay his loan of
$15,000 to the corporation.

Judge: FARMER, J.

URL:http://www.tba.org/tba_files/TCA/HEFFERN.OPN.WP6

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