TBALink Opinion-Flash

October 20, 1997 -- Volume #3 -- Number #104

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):
01-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
06-New Opinons From TCA
05-New Opinons From TCCA

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TBALink Chief Editor


THERESA STANBURY and spouse
JOHN STANBURY
vs.
BRIAN E. BACARDI

Court:TSC

Attorneys:

For Plaintiffs-Appellants:          For Defendant-Appellee:
Helen Sfikas Rogers                 Lela M. Hollabaugh
JONES, ROGERS & FITZPATRICK         MANIER, HEROD, HOLLABAUGH & SMITH
Nashville, Tennessee                Nashville, Tennessee

                          
Judge:DROWOTA

First Paragraph:

In this appeal we must determine whether the common law "continuing
medical treatment doctrine" remains viable in Tennessee and operates
to toll the statute of limitations in medical malpractice cases until
the termination of treatment or the physician/patient relationship. 
Relying upon that doctrine, the plaintiffs, Theresa and John Stanbury,
argue that the Court of Appeals erred by dismissing this medical
malpractice action which was filed within one year of Theresa
Stanbury's last office visit with the defendant Dr. Brian E. Bacardi,
a podiatrist.   The Court of Appeals found the doctrine inapplicable
under the facts of this case, and, in addition observed that its
applicability has been eroded or eliminated in this State by judicial
and legislative adoption of the discovery rule.  In a separate
opinion, Judge Koch concluded that the doctrine has been completely
subsumed into the discovery rule, and he urged that its abolition be
expressly recognized.

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

ROBERT E. ADCOX and         
DONALD F. GRAEF
vs.
SCT PRODUCTS

Court:TCA

Attorneys:

CHARLES R. RAY
Nashville, Tennessee
Attorney for AppellantS

RICHARD R. PARKER
WILLIAM S. RUTCHOW
Nashville, Tennessee
Attorneys for Appellee                          

Judge:HIGHERS

First Paragraph:

Plaintiffs Robert E. Adcox and Donald F. Graef (collectively, the
Employees) appeal the trial court's order dismissing their actions for
breach of employment contract, promissory estoppel, and fraudulent
inducement against Defendant/Appellee SCT Products.  For the reasons
hereinafter stated, we affirm the trial court's dismissals.

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

IN RE:                  
MADISON RENEE BAIRD     
                        
WILLIAM ALAN BROWN
vs.                             
MANDY RENEE BAIRD

Court:TCA

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

John B. Melton, III                     Darrell L. Scarlett
Murfreesboro, Tennessee                 Murfreesboro, Tennessee

                          
Judge:KOCH

First Paragraph:

This appeal concerns a dispute over a nonmarital child's surname. 
Approximately six weeks after the child's birth, the father filed a
legitimation petition in the Rutherford County Juvenile Court seeking
to establish paternity, to set visitation, and to give the child his
surname.  Following a bench trial, the juvenile court changed the
child's surname from her mother's name to a hyphenated name that
included both parents' surnames.  On this appeal, the mother takes
issue with the trial court's order changing the child's surname.  We
reverse the portion of the trial court's order changing the child's
surname because we have determined that the father has not carried his
burden of proving that changing the child's surname is in her best
interests.

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

STATE OF TENNESSEE, ex rel, 
MARIE OSONG DAVIS,          
vs.
DAVID MATIKKE

Court:TCA

Attorneys:

JOHN KNOX WALKUP
Attorney General & Reporter
KIMBERLY M. FRAYN
Assistant Attorney General
Nashville, Tennessee
Attorneys for Appellant

PAUL N. RUDOLPH
Nashville, Tennessee
Attorney for Appellee                          

Judge:HIGHERS

First Paragraph:

Plaintiff State of Tennessee, on behalf of Marie Osong Davis, appeals
the trial court's order modifying the child support obligation of
Defendant/Appellee David Matikke.  The trial court's order of
modification reduced Matikke's child support obligation from $580 per
month to $342.33 per month.  For the reasons hereinafter stated, we
reverse the trial court's modification order and reinstate the trial
court's previous order requiring Matikke to pay child support in the
amount of $580 per month.

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

FIRST AMERICAN NATIONAL BANK,   
vs.                         
NATIONAL PROJECT SERVICES,  
INC.,

Court:TCA
                        
Judge:TODD

First Paragraph:

The appellant has filed a petition to rehear.  Upon consideration of
the petition and the entire record in this case, it is the judgment of
the court that the petition should be overruled.

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

CHARLES MONTAGUE
vs.
TENNESSEE DEPARTMENT OF 
CORRECTION, ET AL.,

Court:TCA

Attorneys:

For the Plaintiff/Appellant:            For the Defendants/Appellees:

Charles Montague, Pro Se                Charles W. Burson
                                        Attorney General and Reporter

                                        Jeffrey L. Hill
                                        Assistant Attorney General
                                        Civil Rights and Claims Division
                          

Judge:KOCH

First Paragraph:

This appeal involves a prisoner's efforts to obtain judicial review of
a disciplinary action taken by the Department of Correction.  The
prisoner filed a petition for declaratory judgment in the Chancery
Court for Davidson County seeking review of discipline he received for
engaging in sexual misconduct with a visitor.  The trial court granted
the Department's motion for summary judgment and dismissed the
petition.  The prisoner asserts on this appeal that the trial court
should not have dismissed his petition.  We have determined that the
petition was not timely filed and, therefore, affirm the trial court
in accordance with Tenn. Ct. App. R. 10(b).

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

LARRY D. TURNLEY
vs.
TENNESSEE DEPARTMENT OF 
CORRECTION
Court:TCA

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

Larry D. Turnley, Pro Se                Charles W. Burson
                                        Attorney General and Reporter

                                        Darian B. Taylor
                                        Assistant Attorney General
                                        Criminal Justice Division
                          

Judge:KOCH

First Paragraph:

This appeal involves a dispute over a state prisoner's release
eligibility date.  After the Tennessee Department of Correction did
not respond to his request for a declaratory ruling, the prisoner
filed a declaratory judgment action in the Chancery Court for Davidson
County seeking a declaration that his release eligibility date was
September 2000.  The Department filed a motion for summary judgment
supported by an affidavit setting out its release eligibility date
calculations.  After the trial court dismissed his petition, the
prisoner perfected this appeal.  We agree with the trial court's
conclusion that the material facts are not in dispute and,
accordingly, affirm the summary judgment.

URL:http://www.tba.org/tba_files/TCA/turnleyl_opn.WP6
Opinion-Flash
    
MARK L. GRIMES
vs.
BILLY COMPTON, WARDEN

Court:TCCA

Attorneys:

FOR THE APPELLANT:  FOR THE APPELLEE:

Mark L. Grimes, Pro se              John Knox Walkup
Route 1, Box 330                    Attorney General & Reporter 
Tiptonville, TN 38079-9775
                                    Deborah A. Tullis  
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-4351

                                    C. Phillip Bivens   
                                    District Atty General
                                    P.O. Drawer E
                                    Dyersburg, TN 38024                          

Judge:SUMMERS

First Paragraph:

The appellant, Mark L. Grimes, pled guilty to rape.  He was sentenced
to twelve years incarceration in the Tennessee Department of
Correction.  He, thereafter, filed a petition for habeas corpus
relief.  In his petition he alleged that the indictment against him
was insufficient for failing to allege a mens rea.  He contends his
conviction is void.  The trial court dismissed the petition finding
that it was not proper for habeas corpus review.  The trial court
based this finding on the fact that the appellant's conviction was not
void on its face and that his sentence had not expired.  He appeals
this dismissal.  Upon review, we affirm.

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

JAMES EDWARD LOPER
vs.
BILLY COMPTON, Warden,  
and STATE OF TENNESSEE

Court:TCCA

Attorneys:
For the Appellant:              For the Appellee:

JAMES EDWARD LOPER, Pro Se      CHARLES W. BURSON
Register Number 253396          Attorney General and Reporter
Route 1, Box 330    
Tiptonville, TN  38079-9775     KENNETH W. RUCKER
                                Assistant Attorney General                              
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                C. PHILLIP BIVENS
                                District Attorney General
                                P. O. Drawer E
                                Dyersburg, TN  38024                          

Judge: Hayes

First Paragraph:

The appellant, James Edward Loper, appeals the trial court's dismissal
of his pro se application for writ of habeas corpus.  On September 5,
1995, the appellant pled guilty in the Madison County Circuit Court to
one count of rape of a child, one count of aggravated rape, and one
count of aggravated sexual battery. The appellant is currently serving
an effective fifteen year sentence at the Lake County Regional
Correctional Facility for these offenses.  On October 11, 1996, the
appellant filed an application for a writ of habeas corpus alleging
that the judgments entered against him are void because the indictment
failed to allege the mens rea of the offenses charged.  On October 14,
1996, finding that "allegations concerning the sufficiency of the
indictments are not subject to habeas corpus relief," the trial court
dismissed the appellant's petition.  The appellant now appeals the
trial court's dismissal.

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

HARVEY QUALLS
vs.
BILLY COMPTON, Warden,  
and STATE OF TENNESSEE

Court:TCCA

Attorneys:
For the Appellant:              For the Appellee:

HARVEY QUALLS, Pro Se           CHARLES W. BURSON
Register Number 150422          Attorney General and Reporter
Route 1, Box 330    
Tiptonville, TN  38079-9775     KENNETH W. RUCKER
                                Assistant Attorney General                              
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                C. PHILLIP BIVENS
                                District Attorney General
                                P. O. Drawer E
                                Dyersburg, TN  38024
                                                  

Judge: Hayes

First Paragraph:

The appellant, Harvey Qualls, appeals the trial court's dismissal of
his pro se application for writ of habeas corpus.  On March 18, 1991,
the appellant pled guilty in the Shelby County Criminal Court to two
counts of aggravated rape for which he received an effective sentence
of twenty-five years.   The appellant is currently confined at the
Lake County Regional Correctional Facility for these offenses.  On
August 12, 1996, the appellant filed an application for a writ of
habeas corpus alleging that the judgment entered against him for the
November 1989 aggravated rape is void because the indictment failed to
allege the mens rea of the offense charged.  On August 16, 1996, the
trial court found that the appellant's petition failed to state "a
proper subject of habeas corpus relief since the judgment is not void
on its face" and dismissed the petition.  The appellant now appeals
the trial court's dismissal.

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

STATE OF TENNESSEE
vs.
WILBERT K. ROGERS       
(A.K.A. PERSON ROGERS)

Court:TCCA

Attorneys:
FOR THE APPELLANT:                  FOR THE APPELLEE:

A. C. WHARTON, JR.                  JOHN KNOX WALKUP 
Shelby County Public Defender       Attorney General and Reporter
                        
WALKER GWINN (On appeal)            SARAH M. BRANCH            
TONY N. BRAYTON (At trial)          Assistant Attorney General
Assistant Public Defenders          450 James Robertson Parkway
201 Poplar Ave.                     Nashville, TN 37243-0493
Suite 201                           
Memphis, TN 38103                   WILLIAM GIBBONS
                                    District Attorney General

                                    AMY WEIRICH
                                    Asst District Attorney General
                                    201 Poplar Ave.
                                    Suite 301
                                    Memphis, Tennessee 38103                          

Judge:RILEY

First Paragraph:

Defendant was convicted by a Shelby County jury of second degree
murder and sentenced to thirty-three (33) years as a Range II,
Multiple Offender.  Defendant brings one issue for our review: whether
the judgment should be modified to criminal attempt to commit murder
because the victim's death did not occur within a year and a day of
the alleged mortal wound.  We find that the Criminal Sentencing Reform
Act of 1989 abolished this common law defense and affirm the judgment
of the trial court.

URL:http://www.tba.org/tba_files/TCCA/rogerswk_opn.WP6
Opinion-Flash
    
MICHAEL R. SOUTH,    
vs.
BILLY COMPTON, WARDEN

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:

Michael R. South, Pro se            John Knox Walkup
Route 1, Box 330                    Attorney General & Reporter 
Tiptonville, TN 38079-9775
                                    Kenneth W. Rucker  
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-4351

                                    C. Phillip Bivens   
                                    District Attorney General
                                    P.O. Drawer E
                                    Dyersburg, TN 38024                           

Judge: SUMMERS

First Paragraph:

The appellant, Michael R. South, pled guilty to aggravated rape.  He
was sentenced to twenty years incarceration in the Tennessee
Department of Correction.  He, thereafter, filed a petition for habeas
corpus relief.  In his petition he alleged that the indictment against
him was insufficient for failing to allege a mens rea.  He contends
his conviction is void.  The trial court dismissed the petition
finding that it was not proper for habeas corpus review.  The trial
court based this finding on the fact that the appellant's conviction
was not void on its face and that his sentence had not expired.  He
appeals this dismissal.  Upon review, we affirm.

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

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