TBALink Opinion-Flash

May 06, 1997 -- Volume #3 -- Number #050

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
06-New Opinions From TCA
02-New Opinions From TCCA

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George Dean
TBALink Chief Editor



KRISINDA BOWERS, A Minor,
by next friend, TAMMY K. BOWERS 
and STEVE BOWERS
vs. 
STEPHEN HAMMOND, THE JACKSON
CLINIC PROFESSIONAL ASSOCIATION,
and THE JACKSON-MADISON COUNTY
GENERAL HOSPITAL

Court:TCA

Attorneys: 

JOEL PORTER
BURCH, PORTER & JOHNSON
Memphis, Tennessee
Attorney for Plaintiff/Appellant

JAMES BELEW WEBB
FLIPPIN, COLLINS, HUEY & WEBB
Milan, Tennessee
Attorney for Plaintiff/Appellant

MARTY R. PHILLIPS
RAINEY, KIZER, BUTLER, REVIERE & BELL, P.L.C.
Jackson, Tennessee
Attorney for Appellees, Stephen Hammond & 
The Jackson Clinic Professional Association

JERRY D. KIZER, JR.
PATRICK W. ROGERS
RAINEY, KIZER, BUTLER, REVIERE & BELL, P.L.C.
Jackson, Tennessee
Attorneys for Appellee Jackson-Madison County
General Hospital District                         

Judge: HIGHERS

First Paragraph:

Plaintiff Krisinda Bowers, a minor, by next friends Tammy K. Bowers
and Steve Bowers (Krisinda's parents), appeals the trial court's order
entering summary judgment in favor of Defendants/Appellees Stephen
Hammond, The Jackson Clinic Professional Association, and
Jackson-Madison County General Hospital.  In dismissing the complaint,
the trial court ruled that Krisinda's action against the Defendants
was barred by the three-year statute of repose applicable to medical
malpractice actions and, further, that Krisinda's action against the
Hospital was barred by her failure to comply with the statutory notice
requirements formerly applicable to actions against governmental
entities.  We affirm in part and reverse in part. AFFIRMED IN PART,
REVERSED IN PART AND REMANDED.

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

CHARLES R. BROWDER and
TERESA NOLAND BROWDER
vs.
JERRY C. MORRIS and 
CHRIS CASTLEBERRY, ET AL

Court:TCA

Attorneys:   

Randall J. Fishman,
Mark A. Mesler,
BALLIN, BALLIN & FISHMAN, P.C., Memphis, Tennessee
Attorney for Plaintiffs/Appellants.

J. Cecil McWhirter,
McWHIRTER & WYATT, Memphis, Tennessee
Attorney for Defendants/Appellees Jerry C. Morris and Chris
Castleberry.

James W. Cook,
CARD, COOK & HOLT, Memphis, Tennessee
Attorney for Defendant/Appellee General Accident Group.

Robert L. Moore, 
THOMAS, HENDRIX, HARVEY, JOHNSON & MITCHELL, Memphis, Tennessee
Attorney for Defendant/Appellee Paul Davis Systems, Inc.                       

Judge: FARMER

First Paragraph:

This is an interlocutory appeal by appellants, Charles R. and Teresa
Noland Browder, from the trial court's denial of a motion seeking to
amend their complaint to name an additional party defendant pursuant
to T.C.A. S 20-1-119.  The statute was enacted in response to the
supreme court's decision in McIntyre v. Balentine, 833 S.W.2d 52
(Tenn. 1992), which abolished the doctrine of contributory negligence
in Tennessee and adopted principles of comparative fault.  The statute
allots a plaintiff in cases of comparative fault additional time
beyond the normal running of the statute of limitations within which
to join a previously unnamed defendant by either amendment of the
complaint or institution of a separate action.  The issue presented
here is whether the statute as enacted contemplates the joinder of a
third party defendant whose liability, if any, is vicarious only.
AFFIRMED AND REMANDED.

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

ROSSLYN JEAN CARRIER
vs.
GENE ALLEN CARRIER

Court:TCA

Attorneys: 

James F. Butler; Spragins, Barnett,
Cobb & Butler of Jackson
For Appellee

Joe H. Byrd, Jr., of Jackson
For Appellant                         

Judge: CRAWFORD

First Paragraph:

This is a divorce case.  Defendant, Gene Allen Carrier (Husband),
appeals the order of the trial court dividing the marital property and
awarding alimony to the plaintiff, Rosslyn Jean Carrier (Wife).
AFFIRMED AND REMANDED.

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

ERICA REBECCA HURD, deceased
by and through her parents and next
friends, CHARLES and VIRGINIA   
HURD, and CORTNEY DESHAUN
RAGLAND, a minor, by and through his
next friend, WANDA KAY GRIME
vs.
DAVID WOOLFORK, individually and 
as an agent, servant, employee, Sheriff,
and representative of MADISON
COUNTY, TENNESSEE and 
MADISON COUNTY, TENNESSEE

Court:TCA

Attorneys: 

Larry C. Sanders,
GARRETY & SANDERS, P.C., Jackson, Tennessee
Attorney for Plaintiffs/Appellants.

Blake Anderson, Jackson, Tennessee
Attorney for Defendant/Appellee, Daivd Woolfork, Individually.

James I. Pentecost,
WALDROP & HALL, P.A., Jackson, Tennessee
Attorney for Defendants/Appellees Sheriff David Woolfork and Madison
County, Tennessee.

Judge: FARMER

First Paragraph:

Plaintiffs Erica Rebecca Hurd, deceased, by and through her parents
and next friends, Charles and Virginia Hurd, and Cortney Deshaun
Ragland, a minor, by and through his next friend, Wanda Kay Grimes,
appeal the trial court's order dismissing their wrongful death actions
against Defendants/Appellees Madison County and David Woolfork,
Madison County's Sheriff. We affirm. AFFIRMED AND REMANDED.

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

BEVERLY DIANNE (PRIVETTE) MOORE 
vs.
GARY THOMAS MOORE

Court:TCA                          

Judge: CRAWFORD

First Paragraph:

Appellant's Petition to Rehear is not well-taken and is denied.

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

JUDY MARGARET JACKSON VIROSTEK 
vs.
JAMES R. VIROSTEK

Court:TCA

Attorneys: 

MIMI PHILLIPS, Norwood, Philips, Deboo, Howard & Grubb, Memphis, 
Attorney for Plaintiff.

ROBERT A. TALLEY, Brown, Brasher, & Smith, Memphis, Attorney for
Defendant.

Judge: TOMLIN

First Paragraph:

Judy Margaret Jackson Virostek ("Wife") filed suit for divorce in the
Chancery Court of Shelby County against James R. Virostek ("Husband").
Following a bench trial the chancellor entered a decree awarding Wife
a divorce on the grounds of irreconcilable differences.  The divorce
decree also incorporated therein by reference a Marital Dissolution
Agreement ("MDA") awarding custody of the parties' minor child to Wife
as well as providing that Husband would pay child support along with
rehabilitative alimony to Wife.  Thereafter Husband filed a motion to
modify the divorce decree relative to the payment of child support and
alimony.  Wife responded with a counter-petition seeking to have
Husband held in contempt for failure to abide by the terms of the MDA.
Following a hearing the chancellor denied Husband's petition to
modify relative to the payment of alimony and child support.  The
court also found Husband in contempt of court for failing to abide by
the provisions of the MDA, ordered Husband to disperse funds from the
trust account of the parties' minor son to satisfy an outstanding
tuition balance at the son's private school and ordered Husband to pay
Wife's attorney fees, approximating $15,000.00.  REVERSED IN PART AND
AFFIRMED IN PART.

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

SEDLEY ALLEY
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

For the Appellant                   For the Appellee

Arthur E. Quinn                     Charles W. Burson
Suite 360                           Attorney General and Reporter
860 Ridge Lake Boulevard            450 James Robertson Pkwy.
Memphis, TN  38120                  Nashville, TN  37243-0493

Timothy R. Holton                   Amy L. Tarkington
Suite 705                           Assistant Attorney General
200 Jefferson Avenue                450 James Robertson Pkwy.
Memphis, TN  38103                  Nashville, TN  37243-0493

                                    John W. Pierotti
                                    District Attorney General

                                    Henry P. Williams
                                    John W. Campbell                                        
                                    Asst District Attorneys General
                                    201 Poplar Avenue
                                    Memphis, TN  38103                       

Judge: Wade

First Paragraph:

The petitioner, Sedley Alley, appeals from the trial court's denial of
post-conviction relief and presents the following issues for our
review: (1) whether he was denied a fair trial due to the
impartiality of the trial judge; (2) whether a prospective juror
was improperly dismissed; (3) whether he was denied the effective
assistance of counsel at trial and on direct appeal; (4) whether
the post-conviction court erroneously denied the petitioner expert
services; (5) whether the post-conviction court erroneously denied
the petitioner the opportunity to make an offer of certain mitigating
proof; (6) whether the prosecutor committed reversible error during
trial; (7) whether the trial court committed reversible error
during trial; (8) whether the trial court properly instructed the jury
at the guilt and penalty phases of the trial; and (9)   whether the
Tennessee death penalty statute is unconstitutional. We affirm the
judgment. AFFIRMED.

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

STATE OF TENNESSEE
vs.
PRESTON CARTER

Court:TCCA

Attorneys:   

FOR THE APPELLANT:                  FOR THE APPELLEE:

Glenn I. Wright                     Charles W. Burson
Suite 800                           Attorney General and Reporter
200 Jefferson Avenue                500 Charlotte Avenue     
Memphis, TN 38103                   Nashville, TN 37243-0497
                            
Howard L. Wagerman                  Amy L. Tarkington
200 Jefferson Avenue, Ste           1313 Assistant Attorney General
Memphis, TN 38103                   450 James Robertson Pkwy.
                                    Nashville, TN 37243-0493

                                    John W. Pierotti
                                    District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103
                            
                                    Phillip Gerald Harris
                                    Asst District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103

                                    Reginald R. Henderson
                                    Asst District Attorney General
                                    201 Poplar Avenue, Suite 3-01
                                    Memphis, TN 38103                       

Judge: Jones

First Paragraph:

The appellant, Preston Carter, (defendant), was convicted of two
counts of murder in the first degree following his pleas of guilty to
these two offenses.  A jury of his peers set his punishment at death
by electrocution for both offenses.  The jury found one aggravating
circumstance, namely, the murders were especially heinous, atrocious,
or cruel in that they involved torture or serious physical abuse
beyond that necessary to produce death. AFFIRMED.

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

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