TBALink Opinion-Flash

February 7, 1997 -- Volume #3 -- Number #017

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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02-New Opinions From TSC
00-New Opinions From TSC-Rules
00-New Opinions From TSC-Workers Comp Panel
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03-New Opinions From TCCA

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TBALink Chief Editor


APRIL WALLACE, VICKIE GWIN, ET AL.
vs.
NATIONAL BANK OF COMMERCE, ET AL.

Court:TSC

Attorneys: 
For Plaintiff-Appellant:        For Defendant-Appellee:
Allan J. Wade                   Charles W. Burson
Memphis                         Attorney General & Reporter
                                Nashville

OF COUNSEL:                     Daryl J. Brand
                                Senior Counsel
Baker, Donelson, Bearman,       Attorney General's Office
   & Caldwell                   Nashville
Memphis
                         

Judge: Reid

First Paragraph:

The petition to rehear filed by the plaintiffs appellants insists that
the Court should have remanded this case to the trial court for trial
rather than dismiss the case on summary judgment.  The petition to
rehear is denied.

URL:http://www.tba.org/tba_files/TSC/wallacea_op2.WP6
Opinion-Flash

ESTATE OF ATLAS DUNCAN WILLIAMS, DECEASED, 
CAROLYN S. WILLIAMS, EXECUTRIX 
vs. 
JOE B. HUDDLESTON, COMMISSIONER OF REVENUE 
OF THE STATE OF TENNESSEE

Court:TSC

Attorneys:
For Plaintiff-Appellant:        For Defendant-Appellee:
Allan J. Wade                   Charles W. Burson
Memphis                         Attorney General & Reporter
                                Nashville

OF COUNSEL:                     Daryl J. Brand
                                Senior Counsel
Baker, Donelson, Bearman,         Attorney General's Office
   & Caldwell                   Nashville
Memphis
                          

Judge: REID

First Paragraph:

This case presents for review the decision of the Court of Appeals
that where the surviving spouse has elected against the decedent's
will and taken the statutory elective share the maximum allowable
deduction for Tennessee inheritance tax purposes is the value of the
elective share less an amount equal to one-third of the decedent's
secured debts.  That decision is reversed, and the judgment of the
trial court that the entire value of the elective share qualifies for
the marital deduction is reinstated. JUDGMENT OF COURT OF APPEALS SET
ASIDE; JUDGMENT OF TRIAL COURT AFFIRMED; CASE REMANDED.

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

MOHAMMAD AL-HADDAD
vs.
WALTER RITTER AND WIFE, HELMA RITTER

Court:TCA

Attorneys: 

LAWRENCE WILSON
2400 Crestmoor Road Suite 314
Nashville, Tennessee 37215
    Attorney for Plaintiff/Appellee

WILLIAM CARTER CONWAY
236 Court Square, Suite 205
Franklin, Tennessee 37064
    Attorney for Defendants/Appellants                         

Judge: CANTRELL

First Paragraph:

Pursuant to Rule 11, Tenn. R. Civ. P., the trial court sanctioned the
appellants and their attorneys.  The appellants argue on appeal that
they cannot be sanctioned under Rule 11 because they did not sign the
offending pleading and that the facts do not establish a violation of
the rule.  We hold that a party may be sanctioned under Rule 11
without actually signing the pleadings, but we find that the facts of
this case do not justify a Rule 11 sanction and that the proof fails
to show any expenses incurred as a result of the alleged violation. 
Therefore we reverse the judgment against the appellants for
sanctions. REVERSED AND REMANDED.

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

BRADLEY MARK BUTLER
vs.
PRINCE E. SPRADLIN and wife, SYLVIA S. SPRADLIN

Court:TCA

Judge: FARMER

First Paragraph:

The purpose of this litigation was to establish the boundary
line between property owned by the Plaintiff, Bradley Mark Butler, and
the defendants, Prince E. Spradlin and Sylvia S. Spradlin.  Each party
presented several witnesses and exhibits including the testimony of
their respective surveyors.  Upon completion of the evidence, the
chancellor made findings of fact including a finding that the
plaintiff had established his title by a clear preponderance of the
evidence.  The court accepted the survey of Eddie Coleman, the
surveyor who testified in behalf of the plaintiff, and established the
property line according to the Coleman survey.

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

AETNA INSURANCE COMPANY and 
CHURCH OF GOD OF PROPHECY,
(HICKORY VALLEY ROAD)
vs.
LITTLE GIANT MFG. CO., INC. and     
EDWIN L. WIEGAND DIVISION OF
EMERSON ELECTRIC COMPANY

Court:TCA

Attorneys:

Daniel J. Ripper, Chattanooga, For the Appellant.
James P. Anderson,Jr.,  Chattanooga, For the Appellee, Little Giant
Mfg. Co., Inc. 
Douglas M. Campbell, Chattanooga, For the Appellee, Edwin L. Wiegand,
Division of Emerson Electric Co.                  

Judge: INMAN

First Paragraph:

This complaint was filed by the Church of God of Prophecy against the
Little Giant Mfg. Co. and Kick-Shaw, Inc., alleging that its property
was destroyed by fire caused by a defective water heater manufactured
by Little Giant and sold to the plaintiff by Kick-Shaw, Inc.  Various
defenses were interposed by the defendants, none of which is relevant
to the issue before us.  Thereafter, the complaint was repeatedly
amended; new parties came and went; and, in its present posture, the
plaintiffs are Aetna Insurance Company and Church of God of Prophecy
and the defendants are Little Giant Mfg. Co., Inc. and Emerson
Electric Company. VACATED AND REMANDED.

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

CITY BANK & TRUST COMPANY and
B. TIMOTHY PIRTLE, Trustee
vs.
DAVE ALLEN WEBB and DEBBIE LYNN WEBB

Court:TCA

Attorneys:  

TIMOTHY L. REED
Suite 302, City Bank Building
McMinnville, Tennessee 37110
    ATTORNEY FOR PLAINTIFFS/APPELLEES

KEITH S. SMARTT
107 College Street
P. O. Box 869-B
McMinnville, Tennessee 37110
    ATTORNEY FOR DEFENDANTS/APPELLANTS                        

Judge: LEWIS

First Paragraph:

This is an appeal by defendants Dave Allen Webb and wife Debbie Lynn
Webb, from the trial court's judgment setting aside a foreclosure sale
and, in effect, putting the parties in the same position they were in
before the foreclosure. AFFIRMED AND REMANDED.

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

MAVIS A. COMBS
vs.
THE METROPOLITAN GOVERNMENT 
OF NASHVILLE and DAVIDSON
COUNTY, and the CIVIL SERVICE
COMMISSION

Court:TCA

Attorneys:  

DAVID I. KOMISAR
211 Printer's Alley Building
Suite 400
Nashville, Tennessee 37201
    ATTORNEY FOR PETITIONER/APPELLANT

JAMES L. MURPHY, III
Director of Law
The Department of Law of the
Metropolitan Government of
Nashville and Davidson County

WM. MICHAEL SAFLEY
Metropolitan Attorney
204 Metropolitan Courthouse
Nashville, Tennessee 37201
    ATTORNEY FOR RESPONDENTS/APPELLEES                        

Judge: LEWIS

First Paragraph:

This is an appeal by petitioner/appellant, Mavis A. Combs, from the
decision of the Davidson County Chancery Court upholding the decision
of respondent/appellee, the Metropolitan Civil Service Commission
("the Commission"), to deny Ms. Combs in-line-of-duty injury leave. 
AFFIRMED AND REMANDED.

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

AMANDA CAROL CROSLIN and
PHYLLIS CROSLIN BAKER
vs.
DANNY KEITH CROSLIN, wife
BETTY JEAN CROSLIN and
STANLEY GARDNER HASKINS

Court:TCA

Attorneys: 

Jessica Dawn Dugger and Gregory S. Gill of
Rochelle, McCulloch & Auds in Lebanon
For Respondents-Appellants, Croslin

Hugh Green of Lebanon
For Petitioners-Appellees, Croslin and Baker                         

Judge: CRAWFORD

First Paragraph:

This is an adoption case.  Petitioners, Amanda Croslin and Phyllis
Croslin Baker, the adoptive child's mother and maternal grandmother
respectively, filed a petition to set aside the adoption of the child,
Danna Elisabeth Croslin, by the maternal grandfather, Danny Keith
Croslin, and his wife, Betty Jean Croslin.  Also named as a defendant
in the petition is Stanley Gardner Haskins, the adoptive child's
natural father.  From the order of the trial court nullifying and
setting aside the adoption, Danny Keith Croslin has appealed. REVERSED
AND REMANDED.

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

ROSCOE W. FIELDS, SR.
vs.
BOBBY RAY McGEE and 
LILLIAN BEAN

Court:TCA

Attorneys:  

Roscoe W. Fields, Pro Se, Appellant
Mary Ann Stackhouse, Knoxville, For Appellees                        

Judge: INMAN

First Paragraph:

Mr. Fields says that Joe Torrence, the Circuit Court Clerk of Davidson
County, charged him an excessive fee for a certified copy of a traffic
citation, for which he attempted to seek redress in General Sessions
Court of Knox County. AFFIRMED.

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

JAMES FLETCHER and  
RONALD LANIER FLETCHER
vs.
KENNETH STERLIN VASSER

Court:TCA

Attorneys: 

JOHN B. INGLESON
3017 Poston Avenue
Nashville, Tennessee 37203
    Attorney for Plaintiffs/Appellees

J. STANLEY ROGERS
ROGERS, RICHARDSON & DUNCAN
100 North Spring Street
Manchester, Tennessee 37355
    Attorney for Defendant/Appellant                         

Judge: CANTRELL

First Paragraph:

The holder of an easement across his neighbor's property sought to
replace two gates with cattle guards.  The Chancery Court of Coffee
County denied the request. AFFIRMED AND REMANDED.

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

STATE OF TENNESSEE      
DEPARTMENT OF HUMAN 
SERVICES
vs.
CHARLENE AVERY FOUNTAIN

Court:TCA

Judge: CANTRELL

First Paragraph:

This appeal came on to be heard upon the record from the Juvenile
Court of Knox County and briefs filed on behalf of the respective
parties.  Upon consideration thereof, this court is of the opinion
that there is no reversible error in the trial court's judgment.
AFFIRMED.

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

BARBARA GATLIN
vs.
STATE OF TENNESSEE
DEPARTMENT OF HUMAN SERVICES
IN THE MATTER OF:   
FELICIA GATLIN, a child under the age of 18.    

Court:TCA

Attorneys:

KATHLEEN G. MORRIS
P. O. Box 128091
Nashville, Tennessee 37212
    Attorney for Petitioner/Appellant

CHARLES W. BURSON
Attorney General and Reporter

SUE A. SHELDON
Assistant Attorney General
Cordell Hull Building, 2nd Floor
426 5th Avenue North
Nashville, Tennessee 37243-0499
    Attorney for Respondent/Appellee                          

Judge: CANTRELL

First Paragraph:

The Juvenile Court of Davidson County terminated Barbara Gatlin's
parental rights respecting her ten year old daughter, Felicia. 
Because we find that the record does not contain clear and convincing
evidence of abandonment, we reverse.

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

ERMA HARDESTY and JIM HARDESTY
vs.
SERVICE MERCHANDISE COMPANY, INC.

WITH CONCURRING OPINION


Court:TCA

Attorneys: 

Hal Gerber, Memphis, Tennessee
Lewie R. Polk, III, Memphis, Tennessee
And
Shawn Ellis,
WILHOIT EDUMUNDSON TERANDO & HOPKINS, Poplar Bluff, Missouri
Attorneys for Plantiffs/Appellants.

Gail O. Mathes, Memphis, Tennessee
Attorney for Defendant/Appellee.                         

Judge: FARMER

First Paragraph:

This appeal is taken from the trial court's order of June 7, 1995,
granting summary judgment in favor of Defendant Service Merchandise
Company, Inc. (hereinafter, "Service Merchandise").  Specifically, the
trial court found that there was no proof of a dangerous condition
created by Service Merchandise and no proof that Service Merchandise
had either actual or constructive notice that a dangerous condition
existed.  Upon consideration of the record before us, the trial
court's order is affirmed. AFFIRMED AND REMANDED.

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

DOROTHY H. LONG
VS.
DAVID G. LONG and RELEASE
COATINGS OF TENNESSEE, INC.

Court:TCA

Attorneys: 

DAVID E. CAYWOOD, Memphis, Attorney for Plaintiff.
HAL GERBER and KAREN R. CICALA, Memphis, Attorneys for Defendants.

Judge: TOMLIN

First Paragraph:

In this divorce case Dorothy H. Long ("Wife") filed suit for divorce
in the Chancery Court of Shelby County from David G. Long ("Husband")
alleging inappropriate marital conduct.  Husband filed an answer and a
cross-complaint.  The parties stipulated that Husband was guilty of
inappropriate marital conduct.  The chancellor entered an order
awarding Wife a divorce on these grounds.  The chancellor at the same
time appointed a Special Master and assigned him the responsibility of
ascertaining if either party had dissipated or secreted marital assets
during the marriage, determining the value of certain marital property
and the current ownership of same and recommending to the court an
appropriate division of marital assets, along with alimony, if any, as
well as the assessment of costs and fees.  After several hearings, the
Special Master filed his final report to the chancellor covering the
scope of his assignment.  The chancellor affirmed the findings of the
Special Master and included the Master's findings in his final decree.
MODIFIED AND AFFIRMED.

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

RICHARD E. PERRY, and wife, TAMELIA PERRY 
vs.
TERRY FLATFORD, and wife, TERESA FLATFORD, BRENDA DYE, GORDON WHITE,
REMAX PREFERRED PROPERTIES, INC., DAVID SNELSON, BEVERLY V. McMAHAN,
CROSSROADS REALTY, JIM PEMBERTON, JR., RANDY BUTTON & ASSOCIATES,
INC., d/b/a EAST TENNESSEE APPRAISAL GROUP and HARRY W. FERSNER

Court:TCA

Attorneys:  

Lewis S. Howard, Jr., Knoxville, for Appellant Brenda Dye
Boyd W. Venable, III, Knoxville, for Appellants White and Remax
Johnny V. Dunaway, LaFollette, for Appellees Perry                        

Judge: INMAN

First Paragraph:

This is an action for damages allegedly sustained by the plaintiffs as
a result of misrepresentations made to them in their purchase of a
residence. VACATED and REMANDED.

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

RIVERS RUN PROPERTIES, INC.
vs.
CITY OF OAK RIDGE, TENNESSEE

Court:TCA

Attorneys:                          

Robert W. Wilkinson, Oak Ridge, For the Appellant
Bernard E. Bernstein, Knoxville, For the Appellee.

Judge: INMAN

First Paragraph:

This is an action for a declaratory judgment that the plaintiff is
entitled to acquire a 12.38 acre tract of unimproved land from the
defendant City. AFFIRMED.

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

VICKIE ELAINE 
vs.
JEREMY PERCY JULIAN SPIEGEL

Court:TCA

Attorneys: 

TERRY A. FANN
WALDRON AND FANN
202 West Main Street
Murfreesboro, Tennessee 37130
    Attorney for Plaintiff/Appellee

MARLENE ESKIND MOSES
EISENSTEIN, MOSES & MOSSMAN
Suite 500
One Church Street Building
Nashville, Tennessee 37201
    Attorney for Defendant/Appellant                         

Judge: CANTRELL

First Paragraph:

The issues on appeal in this divorce case include the restrictions put
on the father's visits with his minor daughter and the award of
attorneys fees to the mother.  We affirm the judgment of the trial
court.

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

NATHAN JACK TOLER, a minor child, b/n/f SHIRLEY LACK and SHIRLEY LACK,
next of kin and as Administratrix of the Estate of Nathan Jack Toler, Jr.
vs.
CITY OF COOKEVILLE, d/b/a COOKEVILLE GENERAL HOSPITAL, NATIONAL
EMERGENCY SYSTEMS, INC., d/b/a "NES", and MARK GIESE, D.O.,
Individually, and RAY FULLER, M.D., M.D. Individually, and BAPTIST
CONVENIENT CARE EAST, P.C., d/b/a BAPTIST CONVENIENT CARE CENTERS, INC.

Court:TCA

Attorneys:

HELEN S. ROGERS
201 Fourth Avenue North, Suite 1550
Nashville, Tennessee 37219

LARRY L. CRAIN
101 Westpark Drive, Suite 250
Brentwood, Tennessee 37027
    ATTORNEYS FOR PLAINTIFFS/APPELLANTS

DARRELL G. TOWNSEND
DERRICK C. SMITH
Howell & Fisher
Court Square Building
300 James Robertson Parkway
Nashville, Tennessee 37201-1107
    ATTORNEYS FOR DEFENDANT/APPELLEE                          

Judge: LEWIS

First Paragraph:

Appellee, Dr. Mark Giese, is one of several defendants involved in a
medical malpractice suit arising out of the alleged wrongful death of
Nathan Jackson Toler, Jr.  The trial court entered an interlocutory
order granting summary judgment to Dr. Giese based upon the
plaintiffs' failure to properly secure service of process on him. 
Pursuant to Tenn. R. App. P. 9, Plaintiffs have appealed.  We have
determined that the trial court was correct and therefore affirm the
grant of summary judgment.

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

STATE OF TENNESSEE
vs.
KEETA BURDEN

Court:TCCA

Attorneys: 
FOR THE APPELLANT:              FOR THE APPELLEE:

JAMES H. BRADBERRY              CHARLES W. BURSON
Branberry, Crowe & MacLeod      Attorney General and Reporter
P. O. Box 765
Dresden, TN  38225              CYRIL V. FRASER
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN  37243

                                THOMAS A. THOMAS
                                District Attorney General
    
                                JAMES T. CANNON
                                Assistant District Attorney
                                414 South Fourth Street
                                Union City, TN  38261-0218                           

Judge: SMITH

First Paragraph:

This is an appeal as of right from the judgment of the Circuit Court
of Obion County, granting Appellant's motion to modify her sentence,
but denying her full probation.  See, Tenn. R. Crim. P. 35.  Appellant
was convicted upon a plea of guilty of the offense of theft of
property in excess of $60,000, a Class B felony.  Her original
sentence, imposed April 17, 1995, was to a term of eight years in the
Department of Correction as a Range I standard offender.  The sentence
was suspended except for one year which Appellant was ordered to serve
in the Obion County Jail.  A probationary period was imposed for the
balance of the term and restitution ordered as a condition thereof.
AFFIRMED PURSUANT TO RULE 20.

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

WILLIE CLAYBROOK
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For Appellant:
Tom W. Crider
District Public Defender

Periann S. Houghton
Assistant Public Defender
107 South Court Square
Trenton, TN  38282

For Appellee:
Charles W. Burson
Attorney General & Reporter

M. Allison Thompson
Counsel for the State
450 James Robertson Parkway
Nashville, TN  37243-0493

Robert Radford
District Attorney General Pro Tem 
P.O. Box 686
Huntingdon, TN  38344                         

Judge: WADE

First Paragraph:

The petitioner, Willie Claybrook, appeals the trial court's denial of
post-conviction relief.  In this appeal of right, two issues are
presented for our review:  (1)  whether the petitioner was denied
effective assistance of counsel; and (2)  whether the trial court's
order denying relief met the minimum statutory requirements. AFFIRMED.

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

STATE OF TENNESSEE
vs.
STEVEN D. KING

Court:TCCA

Attorneys:  For Appellant:      For Appellee:
William L. Johnson              Charles W. Burson
Attorney at Law                 Attorney General & Reporter
50 North Front Street
Suite 1150                      Sarah M. Branch 
Memphis, TN  38103              Counsel for the State 
                                450 James Robertson Parkway
                                Nashville, TN  37243-0493       

                                Paul F. Goodman     
                                and
                                Judson W. Phillips 
                                Assistant District Attorneys General 
                                Third Floor, Criminal Justice Complex
                                201 Poplar Avenue
                                Memphis, TN  38103                        

Judge: WADE

First Paragraph:

The defendant, Steven D. King, was convicted of especially aggravated
kidnapping, especially aggravated robbery, and felony murder.  The
trial court imposed concurrent sentences of 25 and 23 years for the
kidnapping and robbery and a consecutive life sentence for the felony
murder. AFFIRMED.

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

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