TBALink Opinion-Flash

March 4, 1998 -- Volume #4 -- Number #041

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
07-New Opinons From TCA
00-New Opinons From TCCA

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George Dean
TBALink Chief Editor


LUCY B. ANDERSON, INDIV. & AS   
ADMIN. OF THE ESTATE OF BILLY   
JOE ANDERSON, DECEASED  
vs.
LENZING U.S.A.  

Court:TSC - Workers Comp Panel

Attorneys:

For the Appellant:              For the Appellee:

Phillip L. Boyd                 Donald B. Oakley
P.O. Box 298                    P.O. Box 1853
Rogersville, Tenn. 37857        Morristown, Tenn.  37816

Edward R. Sempkowski
425 North Jackson St.
Morristown, Tenn.  37814
                          
Judge:THAYER

First Paragraph:

The appeal has been perfected by Lucy Anderson, widow and
administratrix of the Estate of Billy Joe Anderson, deceased, from a
ruling by the trial court that her claim for death benefits was not
compensable as she failed to establish her husband's death was caused
by his work activities.

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

MARTHA SHUPE
vs.
INSURANCE COMPANY OF        
PENNSYLVANIA

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:              For the Appellee:

Nan R. Jenne                    Thomas D. Dossett
Timothy W. Conner               134 W. Center Street
507 S. Gay Street               Kingsport, Tn.  37660
1130 First American Center
Knoxville, Tn.  37902
                         
Judge:THAYER

First Paragraph:

The appeal was perfected by the employer, Insurance Company of
Pennsylvania, from a decision of the trial court awarding the
employee, Martha Jane Shupe, 90% permanent partial disability to the
body as a whole.

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

JOEY SWEAT
vs.
SUPERIOR INDUSTRIES, INC.

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:              For the Appellee:
Steven H. Trent                 Howell H. Sherrod, Jr.
BAKER, DONELSON,                SHERROD, STANLEY,
    BEARMAN & CALDWELL          LINCOLN & GOLDSTEIN
207 Mockingbird Lane            249 East Main Street
P. O. Box 3038                  Johnson City, Tennessee 37604-5707
Johnson City, Tennessee 37602
                        
Judge:INMAN

First Paragraph:

This is a psoriatic arthritis case, an on-going debilitating
condition, which pre-existed the plaintiff's employment.  He alleges
that he was asymptomatic prior to his employment by the defendant and
that the nature of his job triggered his symptoms and worsened the
underlying disease.  The defendant says that only the symptoms, i.e.,
pain and swelling, were exacerbated by employment (as any physical
activity would do) but that the disease per se was not worsened.

URL:http://www.tba.org/tba_files/TSC_WCP/sweat_wc3.WP6
Opinion-Flash

RUSSELL KEITH BERRY
vs.
BRIAN LEE BERRY and PAULA     
FAYE BERRY

Court:TCA

Attorneys:

RUSSELL KEITH BERRY, pro se Appellant.

HOWELL H. SHERROD, JR., Sherrod, Stanley, Lincoln & Goldstein, Johnson
City, for Appellees.
                          
Judge:McMurray

First Paragraph:

Plaintiff, Russell Keith Berry, brought this action on behalf of
himself and his grandmother.  He alleged that his grandmother, Lorena
Beryl Berry, is mentally incompetent and physically ill and that the
defendants, his brother and sister-in-law, gained unfair advantage of
her incompetency by fraudulently taking control of all her worldly
possessions.  The plaintiff also alleged the defendants converted his
personal property while he was incarcerated.  Defendants moved for
summary judgment.  The motion was granted and the complaint dismissed.
 This appeal resulted.   We find there are genuine issues of material
fact and reverse the trial court's judgment.

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

LAWRENCE DIXSON and wife,     
     MARY DIXSON
     vs.
ATLANTIC SOFT DRINK COMPANY,  
also d/b/a Pepsi Cola Company

Court:TCA

Attorneys:

SHERMAN AMES, III, Gillenwater, Nichol & Ames, Knoxville, for
Appellants.

EDWARD U. BABB, Butler, Vines & Babb, PLLC, Knoxville, for Appellee.
                          
Judge:McMurray

First Paragraph:

At approximately 1:00 on Christmas morning of 1995, a pickup truck
which had been stolen from the defendant Atlantic Soft Drink Company's
business compound, crashed into the plaintiffs' residence, allegedly
causing property damage and personal injury to the plaintiffs. 
Plaintiffs, in their complaint asserted that the defendant was
negligent in leaving the keys inside the unlocked truck and providing
inadequate security for the parking lot where company vehicles were
left.  The plaintiffs also sought to impose liability on the defendant
under the doctrine of respondeat superior.  The defendant moved for
summary judgment.  Summary judgment was granted and the complaint
dismissed.  This appeal resulted.  We affirm the judgment of the trial
court.

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

INTERSTATE MECHANICAL         
CONTRACTORS, INC.
vs.
MCH PARTNERS; JIMMY R. REAGAN 
d/b/a PRECISION CONSTRUCTION  
COMPANY; HOME FEDERAL SAVINGS 
& LOAN ASSOCIATION OF UPPER   
EAST TENNESSEE; DON CONSEEN   
d/b/a DC SERVICE AND SALES;   
and CAROLYN MINNIS            
ROBERT CALLAWAY

DON CONSEEN d/b/a DC SERVICE    
& SALES
vs.
JIMMY R. REAGAN
and                                                                         
HOWARD SEXTON

Court:TCA

Attorneys:

STEVEN E. MARSHALL, Marshall & Delius, Sevierville, for Appellants.

EDWARD H. HAMILTON, Brabson, Yates & Hamilton, P.L.C., Sevierville,
for Appellee.
                          
Judge:McMurray

First Paragraph:

This appeal involves a payment dispute between the plaintiff, Don
Conseen, a subcontractor doing business as DC Service & Sales, and
defendants Jimmy R. Reagan and Howard Sexton, doing business as
Precision Construction Company, a general contractor.  Plaintiff sued
for payment for construction work which he testified was requested and
approved by defendants, and for which he was promised payment by the
defendants.  An evidentiary hearing was held.  The defendants
presented no proof at trial.  The chancellor granted plaintiff a
judgment for $19,267.45, the amount sought by the plaintiff.  The
defendants appealed.  We affirm the judgment of the trial court.

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

MEESE & ASSOCIATES, INC.
vs.
EDDIE POWERS and DAVID HICKS

REBECCA CAR KIRKLIN
vs.
MEESE & ASSOCIATES, INC.

Court:TCA

Attorneys:

A. THOMAS MONCERET
Knoxville, Tennessee
Attorney for Appellant

TERRY M. BASISTA
BASISTA, PRYOR & BALLOFF
Jacksboro, Tennessee
Attorney for Appellees, Eddie Powers and David Hicks
and Intervening Appellee, Rebecca Carr Kirklin
                         
Judge:HIGHERS

First Paragraph:

Plaintiff, Meese & Associates, Inc. ("plaintiff"), appeals the
judgment of the trial court  awarding Intervening Plaintiff/Appellee,
Rebecca Kirklin ("Kirklin"), the real estate commission for the sale
of Defendants/Appellees', Eddie Powers ("Powers") and David Hicks
("Hicks") (collectively "defendants"), property by Kirklin.  For
reasons stated hereinafter, we reverse the decision of the trial court
and remand.

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

W. STEVEN RENFRO, JR.
vs.
JOHN DOE

Court:TCA

Attorneys: 

DAIL R. CANTRELL, Cantrell, Pratt & Varsalona, Clinton, for Appellant.

JANET L. HOGAN, Hogan & Hogan, Knoxville, for Appellee Ohio Casualty
Insurance. Company.
                         
Judge:McMurray

First Paragraph:

This is an appeal from a summary judgment entered in favor of Ohio
Casualty Insurance Company, an unnamed party brought before the court
pursuant to T.C.A. S 56-7-1206.  The question before us is whether the
plaintiff, Steven Renfro, is an insured within the meaning of Ohio
Casualty's uninsured motorist (UM) policy provisions.  The precise
issue is whether the plaintiff, at the time of his injury, was
"occupying" the covered vehicle as that term is defined in the policy
under consideration.  The trial court found, on motion for summary
judgment, that the plaintiff was not "occupying" the vehicle.  We
reverse the judgment of the trial court.

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

SCENIC HELICOPTERS, INC. and    
SCENIC HELICOPTER RIDES, LIMITED
vs.
CITY OF SEVIERVILLE,        
TENNESSEE

Court:TCA

Attorneys:

Linda J. Hamilton Mowles, Knoxville, for Appellant.

Dwight E. Stokes, Sevierville, for Appellee.
                          
Judge:INMAN

First Paragraph:

This complaint sought a writ of mandamus to require the City  to issue
a sign permit, or, alternatively, to review the action of the City in
denying the application for a permit. The Chancellor found that the
action of the Board of Zoning Appeals in denying the permit was
arbitrary and ordered the issuance of the permit.  We affirm.

URL:http://www.tba.org/tba_files/TCA/scenic_ca3.WP6
Opinion-Flash

SOUTHLAND REALTORS, INC.
vs.
TABOR CONSTRUCTION      
COMPANY, INC.

Court:TCA

Attorneys:

Thomas R. Henley, Knoxville, for Appellant.

C. Paul Harrison, Knoxville, for Appellee.
                          
Judge:INMAN

First Paragraph:

The trial court allowed the plaintiff a recovery of a commission for
the sale of real estate. The defendant appeals, insisting that (1) the
plaintiff was not a party to the sales agency contract and thus had no
standing to file this action, (2) the agency contract expired before
performance, (3) the plaintiff "performed no useful work," and (4) the
record "cannot support a judgment for anyone."  Each of these issues
alleges that the trial court erred in failing to grant summary
judgment.

URL:http://www.tba.org/tba_files/TCA/southlan_ca3.WP6

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