TBALink Opinion-Flash

June 19, 1998 -- Volume #4 -- Number #096

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
01-New Opinons From TSC-Rules
02-New Opinons From TSC-Workers Comp Panel
09-New Opinons From TCA
07-New Opinons From TCCA

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TBALink Chief Editor


WILLIAM FLETCHER
vs.
WAUSAU INSURANCE COMPANY
NATIONAL SURETY CORPORATION     
and TANKNOLOGY CORPORATION  
INTERNATIONAL

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:                  For the Appellees:

Robert R. Davies                    John D. Agee
Stokes, Fansler & Williams          Cooley, Cooley & Agee
One Centre Square, Suite 200            155  East Race Street
620 Market Street                   P.O. Box 730
P.O. Box 2644                       Kingston, Tenn.  37763
Knoxville, Tenn.  37901
                                    David E. Smith
                                    Hodges, Doughty & Carson
                                    617 West Main Street
                                    P.O. Box 869
                                    Knoxville, Tenn.  37901-0869
                         
Judge:THAYER

First Paragraph:

The trial court awarded plaintiff, William Fletcher, 20% permanent
partial disability to the body as a whole and other statutory benefits
against defendant, Wausau Insurance Company, and defendant-employer,
Tanknology Corporation International.  The claim was dismissed as to
defendant, National Surety Corporation, and there has been no appeal
from the order of dismissal.

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

BOBBY LEE POWERS
vs.
AETNA CASUALTY & SURETY     
COMPANY         
and
DINA TOBIN, DIRECTOR OF THE     
SECOND INJURY FUND

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:                  For the Appellees:

J. William Coley                    Roger L. Ridenour
Hodges, Doughty & Carson            Ridenour, Ridenour & Fox
617 Main Street                     P.O. Box 530
P.O. Box 869                        Clinton, Tn.  37717-0530
Knoxville, Tn.  37901-0869
                                	Sandra E. Keith
                                	Assistant Atty. General
                                	425 5th Avenue North
                                	2nd Floor, Cordell Hull Bldg.
                                	Nashville, Tn.  37243-0499
                         
Judge:THAYER

First Paragraph:

The trial court found plaintiff, Bobby Lee Powers, to be 100% disabled
and awarded benefits for a period of 400 weeks pursuant to the
provisions of T.C.A.        S 50-6-242.  The judgment recited
plaintiff was "found to have a 100 percent permanent, partial
disability."  Defendant insurance carrier, Aetna Casualty & Surety
Company, was held liable for 80% of the award and the remaining 20%
was allocated to the Second Injury Fund.

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

SUPREME COURT OF TENNESSEE
STATE LIST FOR PERMISSION TO APPEAL
June 15, 1998   

Court:TSC - Rules

URL:http://www.tba.org/tba_files/TSC_RULES/statelst32_wpd.WP6
Opinion-Flash

DANNY CARD
vs.
TENNESSEE CIVIL SERVICE                             
COMMISSION and the TENNESSEE    
DEPARTMENT OF ENVIRONMENT   
AND CONSERVATION

Court:TCA

Attorneys:

FRANK J. SCANLON
214 Second Avenue, North
Suite 300
Nashville, Tennessee 37201
Attorney for Petitioner/Appellant

JOHN KNOX WALKUP
Attorney General and Reporter

WILLIAM J. MARETT, JR.
Assistant Attorney General
425 5th Avenue North, 2nd Floor
Nashville, Tennessee 37243-0490
Attorney for Respondents/Appellees
                          
Judge:CANTRELL

First Paragraph:

The issue in this appeal is whether the Tennessee Civil Service
Commission abused its discretion when it dismissed the appellant's
Step V grievance because he failed to furnish the documentation
required for the hearing in a timely fashion.  The Chancery Court of
Davidson County dismissed the petition to review the Commission's
action.  We affirm.

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

JAMES CHASE, JR.
vs.
PHYSIOTHERAPY ASSOCIATES, 
INC., F. WILLIAM HACKMEYER, JR., 
and EVERETT P. HAILEY

Court:TCA

Attorneys:

Eugene C. Gaerig of Memphis
For Appellant

John W. Leach of Memphis
Spicer, Flynn & Rudstrom of Memphis, of Counsel
For Appellees
                          
Judge:CRAWFORD

First Paragraph:

This is premises liability suit.  Plaintiff, James Chase, Jr. (Chase),
appeals the trial court's entry of a judgment on the jury verdict
finding that the defendants, F. William Hackmeyer, Jr. and Everett P.
Hailey, were 50% negligent and that Chase was 50% negligent, therefore
barring Chase's recovery.

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

PAMELA A. GORDON and        
SAMMY D. GORDON
vs.
DR. DONALD WILSON, M.D.,        
and THE JACKSON CLINIC      
PROFESSIONAL ASSOCIATION

Court:TCA

Attorneys:

AL H. THOMAS
IRA M. THOMAS
THOMAS & THOMAS
Memphis, Tennessee
Attorneys for Appellants

MARTY R. PHILLIPS
KEVIN J. YOUNGBERG
RAINEY, KIZER, BUTLER, REVIERE & BELL, P.L.C.
Jackson, Tennessee
Attorneys for Appellees
                          
Judge:HIGHERS

First Paragraph:

Plaintiffs Pamela A. and Sammy D. Gordon appeal the trial court's
judgment dismissing their medical malpractice action against
Defendants/Appellees Donald Wilson, M.D., and the Jackson Clinic
Professional Association.  The trial court dismissed the Gordons'
action based on their failure to comply with the trial court's
previous discovery order.  We conclude that the trial court did not
abuse its discretion when it dismissed the Gordons' action and, thus,
we affirm the trial court's judgment.

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

ELMER R. KINNEY and wife,       
VESTA L. KINNEY
vs.
WAYMON H. HALE
Court:TCA

Attorneys: 

CHARLES S. RAMSEY, JR.
114 North Spring Street
Manchester, Tennessee 37355
Attorney for Plaintiff/Appellant

B. TIMOTHY PIRTLE
Third Floor, City Bank Building
McMinnville, Tennessee 37110
Attorney for Defendant/Appellee
                         
Judge:CANTRELL

First Paragraph:

In an action for breach of warranty, misrepresentation, and negligent
design or construction of a house, the Circuit Court of Warren County
granted summary judgment to the vendor.  On appeal the purchaser
argues that the trial judge mis-applied the law and overlooked facts
in the record that make summary judgment improper.  We affirm the
trial court.

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

KATHLEEN M. LYLE
vs.
MICHELSON ASSET MANAGEMENT, INC.,   
and                         
CREEKSTONE APARTMENTS ASSOCIATES, L.P. 
and                         
CREEKSTONE MANAGEMENT, L.L.C.

Court:TCA

Attorneys: 

Cleve Weathers, #2418
BRUCE, WEATHERS, CORLEY, DUGHMAN & LYLE
First American Center
Suite 2075
315 Deaderick Street
Nashville, Tennessee 37238-2075
ATTORNEY FOR PLAINTIFF/APPELLANT

William B. Jakes, III, #10247
HOWELL & FISHER
Court Square Building
300 James Robertson Parkway
Nashville, Tennessee 37201
ATTORNEY FOR DEFENDANT/APPELLEE
                         
Judge:TODD

First Paragraph:

The appellant, Kathleen M. Lyle, has appealed from a summary judgment
dismissing her suit against her landlord, the captioned defendants,
for injuries received in a slip and fall on a common area of the
leasehold premises.

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

ELI MIKE, an individual, JAMES A.   
SCHRAMPFER, an individual, and  
JANE B. FORBES, as Trustee in       
bankruptcy for the estate of DAVID L.   
OSBORN
vs.
PO GROUP, INC., a Tennessee         
corporation; JAMES W. (BILL)        
ANDERSON, III, an individual; and   
HAROLD L. JENKINS, an individual

Court:TCA

Attorneys: 

John C. Tishler, #13441
TUKE, YOPP & SWEENEY
17th Floor, Third National Bank Bldg.
201 Fourth Avenue North
Nashville, Tennessee 37219-2040
ATTORNEY FOR PLAINTIFFS/APPELLANTS

William L. Harbison, #7012
Andrew J. Pulliam, #16863
SHERRARD & ROE
424 Church Street, Suite 2000
Nashville, Tennessee 37219

D. Denty Cheatham
CHEATHAM & PALERMO
43 Music Square West
P.O. Box 121857
Nashville, Tennessee 37212-1857
ATTORNEYS FOR DEFENDANTS/APPELLEES                         

Judge:TODD

First Paragraph:

The captioned plaintiffs' have appealed from a summary judgment
dismissing plaintiffs' actions against the corporate defendant for the
value of their stock as dissenting minority shareholders and their
action against the individual defendants for breach of fiduciary duty
as corporate directors.

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

EVERETT C. SIMMONS, M.D.
vs.
RUTH E. JOHNSON,                                    
COMMISSIONER OF REVENUE,    
STATE OF TENNESSEE

Court:TCA

Attorneys:

EVERETT C. SIMMONS, M.D.
P. O. Box 339
Grimesland, North Carolina 27837
Pro Se/Plaintiff/Appellant

JOHN KNOX WALKUP
Attorney General & Reporter

STACY E. GIBSON
Assistant Attorney General
425 Fifth Avenue North
Nashville, Tennessee 37243-0489
Attorney for Defendant/Appellee
                          
Judge:CANTRELL

First Paragraph:

A doctor who maintained medical licenses in both Tennessee and North
Carolina received an assessment for payment of the Tennessee
professional privilege tax.  He filed suit against the Commissioner of
Revenue, challenging the imposition of the tax on the ground that he
was not actively engaged in the practice of medicine in Tennessee. 
The trial court granted summary judgment to the Commissioner.  We
affirm.

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

DEBORAH L. WALLER and       
WILLIAM WALLER
SHELTER INSURANCE       
COMPANIES
vs.
DONALD H. AMMON,            
SAMELSON-LEON CO., INC., and    
NICOTIANA ENTERPRISES, INC.

Court:TCA

Attorneys:

For Shelter Insurance Companies:    For Deborah L. and William Waller:

Joseph M. Huffaker                  Thomas C. Gorham
Ortale, Kelley, Herbert & Crawford  James L. Woodard & Associates
Nashville, Tennessee                Franklin, Tennessee
                          
Judge:KOCH

First Paragraph:

This appeal involves a dispute between a motorist and her insurance
company over the company's subrogation claim and its obligation to pay
the motorist the maximum amount of its policy's medical expense
coverage.  Following a collision in which her vehicle was struck from
the rear, the motorist brought suit in the Circuit Court for
Williamson County against the driver of the other vehicle and his
employer.  The motorist's insurance company intervened to recover from
the defendants the payments it made to the motorist for part of her
medical expenses.  The motorist eventually settled with the
defendants, and the trial court dismissed all claims against the
defendants after they paid into court an amount equal to the payments
for medical expenses advanced by the motorist's insurer.  The motorist
thereafter moved for summary judgment on her claims for the funds paid
into court and for the unpaid medical expenses under her insurance
policy.  The trial court awarded the motorist the funds paid into
court and also gave her  a judgment for the unpaid medical expenses up
to her insurance policy's limits.  We have determined that the summary
judgment was unwarranted and, accordingly, vacate the judgment and
remand the case for further proceedings.

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

CONSTANCE ANNE YANCE
vs.
JERRY LEE YANCE

Court:TCA

Attorneys: 

Jeffrey A. Smith, Trenton, Tennessee, for Petitioner/Appellant.

Robert Kinton, Trenton, Tennessee, for Respondent/Appellee.
                         
Judge:FARMER

First Paragraph:

Constance Ann Yance and Jerry Lee Yance were divorced by decree
entered June 30, 1995.  Mr. Yance was ordered to pay alimony in the
amount of $75 per week until the death or remarriage of Ms. Yance.

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

STATE OF TENNESSEE
vs.
JOHNNY K. BLANKENSHIP

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

Mack Garner                     John Knox Walkup 
District Public Defender        Attorney General of Tennessee
419 High Street                 and
Maryville, TN 37804             Todd R. Kelley       
(AT TRIAL)                      Asst Attorney General of Tennessee                                          
                                425 Fifth Avenue North          
John E. Herbison                Nashville, TN 37243-0493
2016 Eighth Avenue South
Nashville, TN 37204             Michael L. Flynn  
(ON APPEAL)                     District Attorney General
                                and
                                Philip Morton
                                Asst District Attorney General
                                363 High Street
                                Maryville, TN 37804
                         
Judge:Tipton

First Paragraph:

The defendant, Johnny K. Blankenship, appeals as of right from his
conviction upon a guilty plea in the Blount County Circuit Court for
obtaining a controlled substance by forgery, a Class D felony.  The
trial court sentenced the defendant as a Range I, standard offender to
three years incarceration in the custody of the Department of
Correction to be suspended and served on probation after serving
thirty days in the county jail.  The trial court also imposed a five
hundred dollar fine.  The defendant contends that the sentence imposed
is excessive and that the trial court erred by denying full probation.
 We affirm the judgment of conviction.

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

STATE OF TENNESSEE
vs.
TERRON PAUL BORDEN

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:

Lloyd R. Tatum              John Knox Walkup
Tatum, Tatum & Weinman      Attorney General & Reporter 
Attorneys at Law
124 E. Main Street          Peter M. Coughlan
P.O. Box 293                Assistant Attorney General
Henderson, TN 38340         425 Fifth Avenue North
                            2nd Floor, Cordell Hull Building
                            Nashville, TN 37243-0493

                            Elizabeth T. Rice
                            District Attorney General

                            Ed Neal McDaniel
                            Asst District Attorney General
                            302 Market Street
                            Somerville, TN 38068
                          
Judge:SUMMERS

First Paragraph:

The appellant, Terron Paul Borden, was arrested on February 28, 1997,
in McNairy County for driving on a revoked license, speeding, and
violation of the Motor Vehicle Habitual Offenders Act (HMVO).  He
retained a lawyer.  Counsel appeared with him in the McNairy County
General Sessions Court on April 18, 1997.  Plea negotiations ensued. 
The appellant entered a guilty plea to driving on a revoked license. 
He waived his right to a preliminary hearing on the HMVO charge.  A
true bill of indictment was returned by the McNairy County Grand Jury
on the HMVO charge on June 9, 1997.

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

STATE OF TENNESSEE
vs.
CHRISTOPHER DAVIS           

Court:TCCA

Judge:Peay

First Paragraph:

The defendant has filed application for permission to appeal pursuant
to T.R.A.P. 9 from an order of the Davidson County Criminal Court.  In
opposing the application, the state relies on its response in State v.
Paul Dennis Reid, Jr., No. 01C01-9805-CC-00213. After reviewing the
pleadings, we grant the defendant's Rule 9 application in the present
case  and affirm as modified the trial court's order.

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

STATE OF TENNESSEE
vs.
RAYMOND W. HOUSTON

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:


WILLIAM H. BELL             JOHN KNOX WALKUP
114 South Main St.          Attorney General & Reporter
Greeneville, TN 37743
                            JANIS L. TURNER
                            Counsel for the State
                            425 Fifth Ave., North
                            Cordell Hull Bldg., Second Fl.                              
                            Nashville, TN  37243-0493
                
                            C. BERKELEY BELL
                            District Attorney General

                            CECIL C. MILLS, JR.
                            Asst. District Attorney General
                            P.O. Box 1876
                            Greeneville, TN 37744                          

Judge:PEAY

First Paragraph:

The defendant was convicted of driving while under the influence,
second offense, and of failure to yield.  The trial court sentenced
him to eleven months, twenty-nine days with a seventy-five percent
release eligibility for the driving while under the influence and
thirty days for the failure to yield.  In this appeal as of right, the
defendant argues that the evidence was insufficient to support his
convictions and that his sentence is excessive.  He also challenges
rulings made by the trial court with regard to witness testimony. 
After a review of the record and applicable law, we find no merit to
the defendant's arguments and, therefore, affirm the judgment of the
court below.

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

STATE OF TENNESSEE
vs.
RICKY DALE McNEESE

Court:TCCA

Attorneys:

FOR THE APPELLANT:          FOR THE APPELLEE:


EDWARD KERSHAW              JOHN KNOX WALKUP
128 South Main St.          Attorney General & Reporter
Suite 102
Greeneville, TN 37743       ELLEN H. POLLACK
                            Asst. Attorney General
                            425 Fifth Ave., North
                            Cordell Hull Bldg., Second Fl.                              
                            Nashville, TN  37243-0493
                
                            C. BERKELEY BELL
                            District Attorney General

                            ERIC D. CHRISTIANSEN
                            Asst. District Attorney General
                            109 South Main St.
                            Greeneville, TN 37743                          

Judge:PEAY

First Paragraph:

The Greene County grand jury indicted the defendant on one count of
driving while under the influence.  Following a trial, a jury
convicted him of the charged offense.  Immediately following the
verdict, the trial judge sentenced him to eleven months, twenty-nine
days with all but ten days suspended.

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

STATE OF TENNESSEE
vs.
DONDIE EUGENE TIDWELL

Court:TCCA

Judge:Peay

First Paragraph:

The defendant has filed application for permission to appeal pursuant
to T.R.A.P. 9 from an order of the Rutherford County Circuit Court. 
In opposing the application, the state relies on its response in State
v. Paul Dennis Reid, Jr., No. 01C01-9805-CC-00213.  After reviewing
the pleadings, we grant the defendant's Rule 9 application in the
present case  and affirm as modified the trial court's order.

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

STATE OF TENNESSEE
vs.
DEVON WELLS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

JOHN HARWELL DICKEY             JOHN KNOX WALKUP 
District Public Defender        Attorney General & Reporter

CURTIS H. GANN                  JANIS L. TURNER 
Assistant Public Defender       Assistant Attorney General
105 South Main                  2nd Floor, Cordell Hull Building
P.O. Box 1119                   425 Fifth Avenue North 
Fayetteville, TN  37334         Nashville, TN  37243

                                WILLIAM MICHAEL McCOWN
                                District Attorney General

                                WEAKLEY E. BARNARD
                                Asst District Attorney General

                                J.B. COX
                                Asst District Attorney General
                                P.O. Box 904 
                                Fayetteville, TN  37334                          

Judge:WOODALL

First Paragraph:

The Defendant, Devon Wells, appeals his convictions of two counts of
sale of a Schedule II controlled substance following a jury trial in
the Lincoln County Circuit Court. The trial court sentenced him as a
Range II Multiple Offender to two consecutive sentences of nine (9)
and seven (7) years.  He was also fined a total of $100,000 for the
two convictions.  In this appeal, Defendant argues that the evidence
was insufficient to establish guilt beyond a reasonable doubt and that
the sentence imposed was excessive and contrary to law.  We affirm the
judgment of the trial court.

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

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