TBALink Opinion-Flash

January 31, 1997 -- Volume #3 -- Number #014

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 Opinions From TSC
00-New Opinions From TSC-Rules
00-New Opinions From TSC-Workers Comp Panel
09-New Opinions From TCA
01-New Opinions From TCCA

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George Dean
TBALink Chief Editor


JAMES & CAROLYN CHRISMAN
vs.
HILL HOME DEVELOPMENT, INC., JIM HILL, ROBERT G. CAMPBELL, ROBERT G.
CAMPBELL & ASSOC., INC., SOUTHLAND COMMUNITIES, INC., BATSON, HIMES &
NORVELL, GARY F. NORVELL and WHANIS ALI RGHEBI,         
                        
and                     

LAURA BAILEY and SOUTHLAND REALTORS, BETTER HOMES & GARDENS

Court:TCA

Attorneys:

Donald E. Overton and Glenna W. Overton, Knoxville For the Appellants.
Terrill L. Adkins, Knoxville, For Appellees, Hill Home Development,
Inc. and Jim Hill. 
Robert H. Green, Knoxville, For Appellees, Robert G. Campbell and
Robert G. Campbell & Assoc., Inc.
James M. Cornelius, Jr., Knoxville, For Appellee, Southland
Communities, Inc.
R. Loy Waldrop, Jr., Knoxville, For Appellees, Batson, Himes &
Norvell, Gary F. Norvell and Wanis Ali Rghebi.

Judge: INMAN

First Paragraph:

This is an action for the abatement of a continuing nuisance and for
accrued damages to the residence of the plaintiffs caused by
rechannelled and reinforced surface waters from nearby property.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

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

THURSTON ANDREW HELMS
vs.
MICHAEL C. GREENE,  
COMMISSIONER, TENNESSEE DEPARTMENT OF SAFETY

WITH PARTIAL DISSENTING OPINION

Court:TCA

Attorneys:

For the Plaintiff/Appellant:    For the Defendant/Appellee: 
E.E. Edwards, III               Charles W. Burson
James A. Simmons                Attorney General and Reporter
EDWARDS & SIMMONS
                                Rebecca Lyford
                                Counsel to the State

                         
Judge: KOCH

First Paragraph:

This appeal involves the forfeiture of over $31,000 seized from the
bank accounts of a suspected cocaine trafficker.  The Commissioner of
Safety summarily ordered the forfeiture after no one filed a timely
claim for the money.  Shortly thereafter, the person from whose bank
accounts the money had been seized filed a claim and requested the
Commissioner to reconsider the forfeiture because he had not received
adequate notice of the forfeiture proceeding.  The Commissioner denied
the request, and the claimant filed a petition for review in the
Chancery Court for Davidson County challenging the adequacy of the
notice and the constitutionality of the administrative forfeiture
procedure.  The trial court upheld the constitutionality of the
forfeiture statutes and the validity of the forfeiture proceeding. We
AFFIRM the judgment.

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

NEW LIFE CORPORATION OF AMERICA
vs.
THOMAS NELSON, INC.

Court:TCA

Attorneys:

MICHAEL L. DAGLEY
G. A. PURYEAR IV
FARRIS, WARFIELD & KANADAY
SunTrust Center, 19th Floor
424 Church Street
Nashville, Tennessee 37219
    Attorneys for Plaintiff/Appellant

JAY S. BOWEN
TIMOTHY L. WARNOCK
BOWEN RILEY WARNOCK & JACOBSON, PLC
704 18th Avenue North
Nashville, Tennessee 37203
    Attorneys for Defendant/Appellee                          

Judge: CANTRELL

First Paragraph:

This is a dispute over the sale of a license to produce and distribute
recordings of the King James version of the Bible.  The Chancery Court
of Davidson County held that the seller failed to satisfy a condition
precedent to the buyer's obligation to perform.  We AFFIRM.

URL:http://www.tba.org/tba_files/TCA/newlife2_opn.WP6
Opinion-Flash

OLA OWENS
vs.
CHARLES R. GERNT and THE ESTATE OF BRUNO GERNT, INC. 
and HOOD COAL COMPANY

Court:TCA

Attorneys: 

OLA OWENS, Pro Se
Rt. Box 88
Jamestown, Tennessee 38556

JAMES P. ROMER
Neal, Craven, Romer & Rains
P. O. Box 797
Jamestown, Tennessee 38556
    ATTORNEY FOR RESPONDENTS/APPELLEES                         

Judge: LEWIS

First Paragraph:

This is an appeal by petitioner/appellant, Ola Owens, from the
chancellor's dismissal of her petition pursuant to Tennessee Rule of
Civil Procedure 12.02(6).  Petitioner filed a "Petition to Establish
Title to Real Property" in May 1996.  She claimed rights in a 5,000
acre tract of land which the state granted to Isham Railey in 1836. 
Respondents filed a motion to dismiss pursuant to Rule 12.02(6) of the
Tennessee Rules of Civil Procedure.  The chancellor heard arguments on
the motion and filed an opinion.  He found that Petitioner was the
owner of the surface rights to a two acre tract of land which was part
of the Bruno Gernt estate. The court also found that Petitioner did
not have a viable claim to the entire Bruno Gernt estate and 
dismissed her suit. AFFIRMED AND REMANDED.

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

MOTHER DOE, as next friend and natural guardian 
of her minor sons, JOHN DOE A AND JOHN DOE B
vs.
ROY R. ROGERS, et al

Court:TCA

Attorneys: 

CAROL S. NICKLE & JENNIFER B. MORTON, Nickle and Morton, Knoxville,
for appellants.
ROBERT H. WATSON, JR. and ARTHUR F KNIGHT, III, Watson, Hollow &
Reeves, Knoxville for Appellees.

Judge: McMurray

First Paragraph:

In this action, the plaintiffs sued a multitude of defendants arising
from incidents alleged to constitute sexual molestation of the minor
children, John Doe A and John Doe B by the defendant, Roy R. Rogers,
while Rogers was employed as a school crossing guard by the City of
Oak Ridge.  A voluntary nonsuit was taken as to the defendant, Rogers.
 Summary judgments were entered in favor of other defendants and these
judgments are not before the court on this appeal.  The only remaining
defendants are the City of Oak Ridge and Timothy Braaten.  Summary
judgment was entered in favor of the City of Oak Ridge and the
defendant, Timothy Braaten.  For reasons hereinafter stated, we AFFIRM
the judgment of the trial court.

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

SHERI WEINER (KIRSHNER) RUBIN
vs.
HOWARD LEE KIRSHNER

Court:TCA

Attorneys:  

Mike W. Binkley
500 2nd Avenue
Suite 300
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFF/APPELLANT

John J. Hollins
SunTrust Center, Suite 2210
424 Church Street
Nashville, Tennessee 37064

J. Russell Heldman
320 Main Street, Suite 101
Franklin, Tennessee 37064
ATTORNEYS FOR DEFENDANT/APPELLEE
                        
Judge: TODD

First Paragraph:

The captioned defendant has appealed from the results of post-divorce
decree proceedings regarding child custody, support visitation and
education, and attorneys fees.  Both parties have filed issues for
review by this Court. On March 20, 1989, the parties were divorced by
judgment of the Probate Court.  The Court approved and adopted a
Marital Dissolution Agreement which provided for joint custody, with
the children primarily residing with the plaintiff (wife).  The
agreement also allowed the defendant husband liberal visitation. Child
support was established at $145 per month per child, and provisions
were made for special expenses. AFFIRMED IN PART, REMANDED IN PART.

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

CHARLES S. SEXTON, JUDGE OF THE TRIAL JUSTICE COURT 
OF SEVIER COUNTY,TENNESSEE 
vs.
SEVIER COUNTY, TENNESSEE

Court:TCA

Attorneys:  


For Appellant                   For Appellee

T.E. FORGETY, JR.               RICHARD T. WALLACE
Rainwater, Forgety & Jones      Ogle & Wallace, P.C.
Dandridge, Tennessee            Sevierville, Tennessee                        

Judge: Susano

First Paragraph:

This is a suit by a judge--whose judgeship was created by a private
act--seeking salary supplements provided by general law.  Charles S.
Sexton, Judge of the Sevier County Trial Justice Court, sued Sevier
County (County) claiming that he is entitled to supplements as
additional compensation for his juvenile and probate jurisdiction. 
While conceding that the Sevier County Trial Justice Court and the
salary for that court were established by private act, Judge Sexton
nevertheless contends that the County is required to pay him in
accordance with T.C.A. S 16-15-5001, et seq., and T.C.A. S 16-15-205,
statutes addressing the compensation of general sessions court judges.
He points out that the County paid his predecessor the sought-after
supplements as if the latter was covered by the general law.  Judge
Sexton seeks equal treatment. REVERSED COMPLAINT DISMISSED REMANDED.

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

CHARLES S. SEXTON, JUDGE OF THE TRIAL JUSTICE COURT 
OF SEVIER COUNTY, TENNESSEE 
vs.
SEVIER COUNTY, TENNESSEE

Court:TCA

Attorneys: 

Guy R. Dotson, Jr., of Murfreesboro For Appellants
Thomas L. Reed, Jr. and Jerry E. Farmer of Murfreesboro, For Appellee

Judge: CRAWFORD

First Paragraph:

Plaintiffs, Jimmie and Helen Victory, appeal from the judgment of the
trial court dismissing their case against the defendant, City of
Murfreesboro.  The Victorys were injured in Murfreesboro when their
car was struck in the rear by a vehicle driven by Ronnie Hickman who
was being chased by a Murfreesboro policeman. AFFIRMED.

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

MARILYN SUE ROBERTS and JOYCE L. WISDOM
vs.
BLOUNT MEMORIAL HOSPITAL

Court:TCA

Attorneys:

J. MIKEL DIXON, Knoxville, for Appellants.
CARL P. McDONALD and ARTHUR B. GODDARD, Maryville, for Appellee.

Judge: McMurray

First Paragraph:

This is an appeal from the judgment of the trial court sustaining
motions for summary judgment filed on behalf of the Blount Memorial
Hospital (defendant).  In their complaint, the plaintiffs charged that
a male nurse, Jody Maddry, sexually assaulted them while they were
patients in the defendant hospital and seek damages on a theory of
vicarious liability.  They further assert that the hospital was guilty
of independent negligence in failing to adequately investigate
Maddry's background before his employment by the defendant; failure to
report the incident as required by law, medical malpractice and
failure to follow their own internal policies.  The plaintiffs alleged
further that the defendant had violated their civil rights. AFFIRMED
IN PART, REVERSED IN PART AND REMANDED.

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

STATE OF TENNESSEE
vs.
JAMES DISON

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

Edward C. Miller                Charles W. Burson
Public Defender                 Attorney General and Reporter
P. O. Box 416   
Dandridge, TN  37725            Darian B. Taylor
                                Assistant Attorney General                          
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                Alfred C. Schmutzer, Jr.
                                District Attorney General

                                Stephen R. Hawkins
                                Asst. District Attorney General
                                Courthouse
                                Sevierville, TN  37862                          

Judge: Hayes

First Paragraph:

The appellant, Jimmy Dison, was convicted by a Sevier County jury of
raping his sister, AD, in violation of Tenn. Code Ann. S 39-13-522
(1994 Supp.).  The trial court imposed a sentence of twenty-five years
confinement in the Tennessee Department of Correction, the maximum
sentence authorized by law.  Tenn. Code Ann. S 39-13-522(b); Tenn.
Code Ann. S 40-35-112(a)(1) (1990). AFFIRMED.

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

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