TBALink Opinion-Flash

October 31, 1996 -- Volume #2 -- Number #93

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
03-New Opinons From TSC-Workers Comp Panel
04-New Opinons From TCA
03-New Opinons From TCCA

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George Dean
TBALink Chief Editor



HARLEY R. RUCKER,v. ROCKWOOD ELECTRIC UTILITIES, et al,                    

Court:TSC - Workers Comp Panel

For the Appellant:              For the Appellee:

James L. Milligan, Jr.          John T. Batson, Jr.
607 Market St., 10th Flr.       Suite 1700, First Tennessee Plaza
Knoxville, TN 37902             800 S. Gay Street
                                P. O. Box 313
                                Knoxville, TN 37902

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. Plaintiff
was injured when he fell and hit his arm on a buzz saw while cutting
trees along utility lines as an employee of Woodland Tree Service,
which had a contract to cut the trees for Rockwood Electric Utilities.

URL:http://www.tba.org/tba_files/TSC_WCP/RUCKER.OPN.WP6
Opinion-Flash

BARBARA WALLACE, v. CADILLAC CURTAIN COMPANY,

Court:TSC - Workers Comp Panel

FOR APPELLANT:                      FOR APPELLEE:

Steven C. Grubb                     Thomas F. Preston
5400 Poplar Avenue, Suite 300       Brinkley Plaza
Memphis, TN 38119-3680              80 Monroe Avenue, Suite 500
                                    Memphis, TN 38102-2465

Judge: CLARK

First Paragraph:

This worker's compensation appeal has been referred to the special
worker's compensation appeals panel of the Supreme Court in accordance
with Tenn. Code Ann. S50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. Trial in
this matter was conducted February 9, 1995.  On May 22, 1995, the
Chancellor entered a final judgment denying compensation to plaintiff
and dismissing her lawsuit.

URL:http://www.tba.org/tba_files/TSC_WCP/WALLACE.OPN.WP6
Opinion-Flash

BRIAN MATTHEW WOOSLEY,  v. TOWNSEND ELECTRIC COMPANY,

Court:TSC - Workers Comp Panel

For Appellant:                              For Appellee:

James E. Conley, Jr. & John Dotson          George L. Morrison III
Thomason Hendrix                            201 East Baltimore
2900 One Commerce Square                    Jackson, TN 
Memphis, TN 

Judge: Holder

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court pursuant to
Tenn. Code Ann. S 50-6 225(e)(3) for hearing and reporting of findings
of fact and conclusions of law. Our scope of review of findings of
fact by the trial court is de novo upon the record of the trial court,
accompanied by a presumption of correctness, unless the preponderance
of the evidence is otherwise.  Tenn. Code Ann. S 50-6-225(e)(2). The
sole question raised on appeal is whether the evidence preponderates
against the chancellor's holding that the employee's injury arose out
of the course and scope of his employment.  For the reasons set forth
below, we affirm the trial court.

URL:http://www.tba.org/tba_files/TSC_WCP/WOOSLEY.OPN.WP6
Opinion-Flash

CAROLYN J. HUNT, and husband, FRANK HUNT, v. MARK J. SHAW,

Court:TCA

For Appellants                      For Appellee

JOHN M. WOLFE, JR.                  JOHN T. RICE
Chattanooga, Tennessee              KEN E. JARRARD
                                    Rice, Kreitzer & Winer, P.C.
                                    Chattanooga, Tennessee

Judge: Susano

First Paragraph:

Over a period of 39-1/2 months, the plaintiffs, Carolyn J. Hunt and
her husband, Frank Hunt, filed three separate complaints in the trial
court against the defendant Mark J. Shaw.  The complaints were
identical in substance; each sought damages arising out of personal
injuries sustained in an automobile accident on December 22, 1990. The
trial court granted the defendant's motion to dismiss.  The plaintiffs
appealed.  The basic issue before us is whether the third complaint
was timely filed.  The plaintiffs also seem to argue that their second
lawsuit was properly served and, furthermore, was never formally
dismissed.

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

PERSHING McCARTER, v. BARBARA McCARTER,

Court:TCA

FRANK L. FLYNN, JR., Pryor, Flynn, Priest & Harber, Knoxville, for
Appellant.

G. KENNETH GILLILAND, Sevierville, for Appellee.

Judge: McMurray

First Paragraph:

This is an appeal from a judgment in a divorce action. The marriage
was of very short duration.  The court granted a divorce to the
appellee husband (plaintiff) and divided the marital property between
the parties.  The plaintiff was, among other things, required to pay
rehabilitative alimony for twenty-four months and to pay the
appellant-wife (defendant) for certain items of household furnishings
that she had given up because of the marriage.  Additionally, the
court required the plaintiff to pay the  defendant's attorney fees in
the amount of $5,000.00.

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

JONATHAN K. SHIPLEY v. THE PERSONNEL ADVISORY BOARD FOR THE CITY OF
OAK RIDGE, TN, et al.

Court:TCA

DAVID A. STUART OF CLINTON FOR APPELLANT

LEWIS R. HAGOOD and ROBERT N. TOWNSEND OF KNOXVILLE FOR JEFFREY J.
BROUGHTON AND THE CITY OF OAK RIDGE

ROBERT W. WILKENSON OF OAK RIDGE FOR THE PERSONNEL ADVISORY BOARD AND
THE MEMBERS THEREOF

Judge:  Goddard

First Paragraph:

This is an appeal from a judgment entered by the Anderson County
Circuit Court upholding an administrative  decision of the Defendant
Personnel Advisory Board of the City of Oak Ridge.  The PAB affirmed
the decision of Jeffery J. Broughton, Oak Ridge City Manager, to
terminate the employment of Plaintiff Jonathan K. Shipley, a police
officer for the City of Oak Ridge.

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

BEE STRICKLAND, v. ANDERSON DYE and ISAAC McLEMORE

Court:TCA

A. WAYNE HENRY, Loudon, for Appellant.

JOHN CARSON III, White, Carson & Alliman, for Appellees.

Judge: McMurray

First Paragraph:

This case originated as a boundary line dispute.  Suit was filed in
1979.  After a trial on the merits, the judgment was set aside on the
grounds of newly discovered evidence.  The case was eventually
referred to a Special Master.  The Special Master's report was
ratified by the Chancery Court for Monroe County and incorporated into
a judgment.  The judgment was filed with the clerk and master on
November 13, 1995.  The appellant's brief states that in early
December, 1995, the Appellant mailed a Motion for a New Trial or in
the Alternative to Alter or Amend the Judgment to the clerk and
master.  The clerk and master, however, never received the motion, and
the judgment became final.  These facts are not disputed.

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

STATE OF TENNESSEE, v. ANTHONY WAYNE BERNDT

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

David Gall                      Charles W. Burson
Assistant Public Defender       Attorney General & Reporter
1209 Euclid Avenue              500 Charlotte Avenue
Knoxville, TN 37921             Nashville, TN 37243-0497

OF COUNSEL:                     Timothy F. Behan
                                Assistant Attorney General
Mark E. Stephens                450 James Robertson Parkway
District Public Defender        Nashville, TN 37243-0493
1209 Euclid Avenue              
Knoxville, TN 37921             Randall E. Nichols
                                District Attorney General
                                400 Main Street
                                Knoxville, TN 37901-1468

                                Charme P. Johnson
                                Assistant District Attorney General
                                400 Main Street
                                Knoxville, TN 37901-1468

Judge: Joe B. Jones

First Paragraph:

The appellant, Anthony Wayne Berndt, was convicted of rape of a child,
a Class A felony, by a jury of his peers.  The trial court found that
the appellant was a standard offender and imposed a Range I sentence
consisting of confinement for seventeen (17) years in the Department
of Correction.  One issue is presented for review.  He contends that
the "trial court erred in overruling [his] request to charge the jury
as to the lesser included offense of aggravated sexual battery." After
a thorough review of the record, the briefs submitted by the parties,
and the authorities which govern the issue presented by the appellant,
it is the opinion of this Court that the judgment of the trial court
should be affirmed pursuant to Rule 20, Tennessee Court of Criminal
Appeals.

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

STATE OF TENNESSEE, v. KENNETH W. ERVIN,

Court:TCCA

FOR THE APPELLANT:              FOR THE APPELLEE:

R. Mack Garner                  Charles W. Burson
District Public Defender        Attorney General & Reporter
419 High Street                 500 Charlotte Avenue
Maryville, TN 37804             Nashville, TN 37243-0497

                                Elizabeth T. Ryan
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                Michael L. Flynn
                                District Attorney General
                                363 Court Street
                                Maryville, TN 37804-5906

                                Edward P. Bailey, Jr.
                                Asst. District Attorney General
                                363 Court Street
                                Maryville, TN 37804-5906
                                
Judge: Joe B. Jones

First Paragraph:

The appellant, Kenneth W. Ervin, appeals as of right from a judgment
of the trial court revoking his community corrections sentence and
increasing his total sentence by one (1) year.  The appellant candidly
admits that he "clearly violated the rules of his Community
Corrections contract in several respects."  He presents the following
issue for review: "[W]hether or not the trial court acted within its
discretion in resentencing the Appellant to five years instead of the
four years to which he was originally sentenced."  After a thorough
review of the record, the briefs submitted by the parties, and the law
governing the issue raised by the appellant, it is the opinion of this
Court that the judgment of the trial court should be affirmed.

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

STATE OF TENNESSEE, v. RICKY LYNN MOORE

Court:TCCA

For Appellant:                  For Appellee:
Mack Garner                     Charles W. Burson
District Public Defender        Attorney General & Reporter
419 High Street
Maryville, TN  37804            Elizabeth T. Ryan
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN  37243-0493           
                        
                                Mike Flynn
                                District Attorney General
                                363 Court Street
                                Maryville, TN  37801
    
Judge: GARY R. WADE

First Paragraph:

The defendant, Ricky Lynn Moore, pled guilty to one count of burglary
and one count of theft over $1000.  At the time of these offenses, the
defendant was on intensive probation for a 1992 aggravated robbery
conviction.  The plea agreement provided for Range I, concurrent
two-year sentences on each count and restitution in the amount of
$6550.  After revoking probation and ordering the defendant to serve
his eight-year robbery sentence, the trial court ordered the burglary
and theft sentences to be served consecutively to the eight-year
robbery sentence.  The single issue on appeal is whether the trial
court erred by ordering the sentences to be served consecutively.  We
affirm the trial court.

URL:http://www.tba.org/tba_files/TCCA/MOORE.OP2.WP6

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