TBALink Opinion-Flash

June 26, 1998 -- Volume #4 -- Number #098

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
08-New Opinons From TCA
06-New Opinons From TCCA

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Lucian T. Pera
Editor-in-Chief, TBALink


HAROLD TREG COTTON
vs.
EPSCO, INC.

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:                  For the Appellee:
    
Steven A. Dix                       Paul A. Bates
McClellan, Powers, Ehmling &        Christopher V. Sockwell
  Dix, P.C.                         Boston, Bates, Holt & Sockwell
201 West Main Street, Suite 201     235 Waterloo Street
Murfreesboro, TN  37130             P.O. Box 357
                                    Lawrenceburg, TN  38464
                         
Judge:BYERS

First Paragraph:

Review of the findings of fact made by the trial court is de novo upon
the record of the trial court, accompanied by a presumption of the
correctness of the findings, unless the preponderance of the evidence
is otherwise.  Tenn. Code Ann.  S 50-6-225(e)(2).  Stone v. City of
McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995).

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

KEVIN CURTIS
vs.                                       
GRUNDY COUNTY SHERIFF'S          
DEPARTMENT, et al

Court:TSC - Workers Comp Panel

Attorneys: 

FOR THE PLAINTIFF/APPELLANT:        FOR THE DEFENDANTS/APPELLEES:
                            
JEFFREY M. ATHERTON                 WILLIAM A. LOCKETT    
FOX & FARMER                        CLEARY & LOCKETT         
200 Franklin Bldg.                  530 Pioneer Bank Bldg.       
Chattanooga, TN 37411               801 Broad Street         
                                    Chattanooga, TN 37402
                         
Judge:RUSSELL

First Paragraph:

This case is before us on an interlocutory appeal.  Kevin Curtis, then
a deputy sheriff for Grundy County and a part-time fireman for the
city of Tracy City, accidentally shot himself in the left hand while
cleaning his pistol.  He sued both the Grundy County Sheriff's
Department and Tracy City for worker's compensation benefits on the
theory that he was injured while contemporaneously working for both. 
Each defendant moved for summary judgment, which relief was denied
Tracy City but granted to the Grundy County Sheriff's Department.  A
discretionary appeal from the dismissal of the Grundy County Sheriff's
Department was granted.

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

CHARLOTTE HULL
vs.
EMRO MARKETING COMPANY,
KWIK SAK, INC., 
RELIANCE INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:                      For the Appellee (Plaintiff):

William M. Billips                      Steve C. Norris     
Ortale, Kelley, Herbert & Crawford      28 Middleton Street
200 Fourth Avenue North, 3rd Floor      Nashville, TN  37210
Nashville, TN  37219
                                        For the Appellees:

                                        Richard E. Spicer
                                        Spicer, Flynn & Rudstrom, PLLC
                                        424 Church Street, Suite 1350
                                        Nashville, TN  37219-2305
                         
Judge:BYERS

First Paragraph:

The trial court found that the plaintiff suffered an injury by
accident on February 23, 1995 and was entitled to an award of 22
percent permanent partial impairment to the body as a whole (
$14,080.00 for permanent partial disability and $960.00 for temporary
total disability payable in a lump sum), medical expenses incurred
after March 9, 1995, and future medical treatment caused by the
injury.  The trial court ruled that Emro Marketing Company ("Emro")
was liable for the award because it was the employer at the time of
the most recent injury that bore a causal relation to the plaintiff's
incapacity.

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

MICKEY ATKINS
vs.
TAMMY SUE GROOMS and          
JEFFREY CHARLES GROOMS

Court:TCA

Attorneys:

REBECCA D. SLONE, Slone & Slone, Dandridge, for Appellant.                  

WILLIAM M. LEIBROCK, Newport, for Appellees.                          

JOHN KNOX WALKUP, Attorney General and Reporter, and SUE A. SHELDON,
Assistant Attorney General, for Intervenor, STATE OF TENNESSEE.
                          
Judge:McMurray

First Paragraph:

The plaintiff in this action sought a decree of paternity and to
legitimate a child, Jeffrey Chase Grooms, of whom he claimed to be the
biological father.  At the time of Jeffrey's birth, the appellee,Tammy
Grooms,(the mother) was legally married to appellee, Jeffrey Charles
Grooms.  The trial court dismissed Atkins' petition under the res
judicata doctrine, finding that the previous decree of divorce between
the appellees had conclusively determined that the appellees were the
legal parents of the child.  The trial court also found that Atkins
had no standing to file a paternity or legitimation petition.

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

CANONIE ENERGY, INC. and    
WGI, INC.
vs.
TENNESSEE ENERGY PIPELINE   
AND STORAGE COMPANY

Court:TCA

Attorneys: 

Lewis S. Howard, Jr., Knoxville, for Appellant.

H. Bruce Guyton, Knoxville, for Appellee.
                         
Judge:INMAN

First Paragraph:

This is an action for a declaratory judgment.

URL:http://www.tba.org/tba_files/TCA/canonie_ca3.WP6
Opinion-Flash

HELEN EBLEN and KYLE E. BEVERLY,
and wife, JUDITH T. BEVERLY
vs.
LUCILLE JOHNSON and CHERYL ROUSE

Court:TCA

Attorneys: 

KATHLEEN E. McGEECHAN, Kingston, for Appellant.

HAROLD D. BALCOM, JR., Kingston, for appellees, Helen Eblen, Kyle E.
Beverly and wife, Judith T. Beverly.

JOHN AGEE, Cooley, Cooley & Agee, Kingston, for appellee, Lucille
Johnson.
                         
Judge:McMurray

First Paragraph:

Generally stated, this is a boundary line dispute. The plaintiffs and
the defendant, Lucille Johnson, settled all issues between them.  The
defendant, Rouse, was the immediate vendee from the vendor, Johnson. 
Rouse filed a cross-claim against Johnson seeking rescission and
reimbursement for improvements allegedly made on the property
purchased from Johnson.  Johnson also filed a cross-claim against
Rouse, alleging that Rouse was trespassing on her property by virtue
of having built a fence on Johnson's property.  She sought damages and
injunctive relief.  After a bench trial, the trial court established
the common boundaries between the litigants and dismissed the
cross-claims.  From the judgment of the trial court, the defendant,
Rouse has appealed.  We affirm the judgment of the trial court.

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

DENVER PAT HANKINS and wife,   
MICHELLE L. HANKINS
vs.
ROBIN DWAYNE SEATON and PET     
INCORPORATED

Court:TCA

Attorneys:

DANIEL D. COUGHLIN, Milligan & Coleman, Greenville, for the
Intervenor-Appellant, Tennessee Farmers Mutual Insurance Company.

ROGER A. WOOLSEY, Greenville, for the Plaintiffs-Appellees and Third
Party Defendant-Appellee.
                          
Judge:McMurray

First Paragraph:

This action was originally brought by the plaintiffs-appellees to
recover damages for personal injuries and related expenses incurred in
a motor vehicle accident.  The plaintiffs did not make any claim for
property damages.  Plaintiffs' property damage was paid under their
contract of insurance with the intervenor, Tennessee Farmers Mutual
Insurance Company (Tennessee Farmers).  Tennessee Farmers also paid
plaintiffs' medical expenses in the amount of $1,619.00. The
plaintiffs executed a subrogation agreement in favor of Tennessee
Farmers.  Tennessee Farmers' total subrogation claim was for
$4,720.00, representing the medical expenses and $3,101.00 paid for
property damages.

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

JAKE O. PURKEY and TEAM      
TECHNOLOGIES, INC.
vs.
DENNIS PURKEY, d/b/a WEST END 
SERVICE CENTER

Court:TCA

Attorneys:

EDWARD J. WEBB, JR., K. JEFF LUETHKE, Hunter, Smith & Davis, Johnson
City, for Appellant.

C. DWAINE EVANS, Evans & Beier, Morristown, for Appellees.
                          
Judge:McMurray

First Paragraph:

In this bailment case, plaintiffs, Jake Purkey and Team Technologies,
Inc., filed suit after their trucks were destroyed in a fire at the
West End Service Center's (defendant) place of business.  A jury found
the defendant liable for the value of the trucks and also for the
rental expenses incurred by Team Technologies in procuring a
substitute vehicle after its truck was destroyed.  The defendant,
Dennis Purkey, owner of the West End Service Station (West End),
appeals, arguing there is no material evidence to support the jury's
verdict.  We affirm the judgment of the trial court.

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

ROBERT REDMOND and wife,    
RUBY REDMOND
vs.
GREAT AMERICAN INSURANCE    
COMPANIES and               
ATHENS INSURANCE COMPANY

Court:TCA

Attorneys:

Jeffrey L. Cunningham, Athens, for Appellant, Great American Ins. Co.

Charles E. Ridenour, Sweetwater, for Appellees. 
                          
Judge:INMAN

First Paragraph:

This is an action to recover on a policy of fire insurance issued on
August 9, 1994 by Great American Insurance Company through its local
agency, Athens Insurance Company.  The insured property was destroyed
by fire on July 2, 1995.  Coverage was denied because the claimants
made a material misrepresentation in their application for the policy.
 The Chancellor found that the plaintiffs misrepresented their loss
history, but held that the unrevealed loss was not material and
allowed a recovery.  The defendant appeals and presents for review the
issue of whether the concealment of a prior loss from wind damage was
a material misrepresentation which increased the risk of loss, and
thus voided the policy.  Our review of the findings of fact made by
the trial Court is de novo upon the record of the trial Court,
accompanied by a presumption of the correctness of the finding, unless
the preponderance of the evidence is otherwise. Tenn. R. App. P., Rule
13(d); Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996).

URL:http://www.tba.org/tba_files/TCA/redmond_ca3.WP6
Opinion-Flash

BONNIE ROACH
vs.
JAMES V. RENFRO and         
TTI, INC.
 and
TTI, Inc.
vs.
DOYLE MARTIN

Court:TCA

Attorneys: 

LEWIS A. COMBS, JR., Knoxville, for Appellant.
 
DUDLEY W. TAYLOR, The Taylor Law Firm, and JIMMY KYLE DAVIS,
Knoxville, for Appellee.
                         
Judge:McMurray

First Paragraph:

These consolidated cases involves a dispute over the rights to
possession and ownership of certain real estate parcels in Knox and
Loudon Counties and for damages claimed to have been suffered by the
wrongful cutting of timber.  The plaintiff, Bonnie Roach, and
defendant, James V. Renfro, lived together for over a decade, during
which time Renfro was legally married to someone else.  Several
parcels of land were acquired during the course of the parties'
cohabitation.  All but one of the parcels were titled in the name of
TTI, Inc., a company owned by Renfro.  In 1995, approximately sixteen
years after the parties ceased cohabitation, during which time Roach
had lived on and maintained the property in question, she filed a
complaint for declaratory judgment seeking a declaration that she
owned the property.  The trial court held that: (1) Roach had no
interest in the parcels titled in TTI's name, and (2) that she and
Renfro owned, as tenants in common, the parcel titled in both their
names.  Roach appeals the first part of the judgment, and Renfro
appeals the second.  We affirm the trial court's judgment.

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

PAULA M. YORK and           
BRIAN YORK
vs.
SEVIER COUNTY AMBULANCE 
AUTHORITY, ET AL, and       
BLUE CROSS/BLUE SHIELD of   
TENNESSEE

Court:TCA

Attorneys: 

Daniel M. Gass, Knoxville, for Appellants.

Richard T. Wallace, Sevierville, and Stephen J. Cox, Knoxville, for
Appellees.
                         
Judge:INMAN

First Paragraph:

Paula York and her son, Brian York, age 9, were injured in a collision
on November 4, 1994 in which Ms. York's automobile was struck from
behind by a Sevier County Ambulance.  She sustained severe injuries
and Brian sustained a traumatic arthrotomy of the left knee, a broken
left femur, permanent scarring of his legs and psychological injuries.
They filed suit against Sevier County Ambulance Authority on June 22,
1995.

URL:http://www.tba.org/tba_files/TCA/york_ca3.WP6
Opinion-Flash

JAMES RUSSELL GANN
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

PRO SE                      JOHN KNOX WALKUP
                            Attorney General & Reporter

                            TIMOTHY E. BEHAN
                            Assistant Attorney General
                            Cordell Hull Bldg., Second Floor
                            425 Fifth Avenue, North
                            Nashville, TN 37243-0493

                            CHARLES E. HAWK, JR.
                            District Attorney General

                            FRANK HARVEY
                            Assistant District Attorney
                            P. O. BOX 703
                            KINGSTON, tn 37763                         

Judge:ACREE

First Paragraph:

The appellant, James Russell Gann, appeals as of right the trial
court's dismissal of his petition for a writ of habeas corpus.   We
affirm the trial court.

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

STATE OF TENNESSEE
vs.
GORDON SCOTT KATZ

Court:TCCA

Attorneys:

FOR THE APPELLANT:                  FOR THE APPELLEE:


JOHN KNOX WALKUP                    J. THOMAS MARSHALL, JR.
Attorney General & Reporter         District Public Defender

MICHAEL J. FAHEY, II                NANCY MEYER
Assistant Attorney General          Assistant Public Defender
Cordell Hull Building - 2nd Floor   101 South Main Street 
425 Fifth Avenue North              Suite 450
Nashville, TN 37243                 Clinton, TN 37716

JAMES N. RAMSEY
District Attorney General

JAN HICKS
Assistant District Attorney
127 Anderson County Courthouse
Clinton, TN 37716                          

Judge:CLARK

First Paragraph:

The State of Tennessee appeals from the action of the trial court
granting defendant's motion for judgment of acquittal after a jury
convicted the defendant of auto burglary and theft of property under
$500.00.  The judgment of the trial court is reversed.

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

STATE OF TENNESSEE
vs.
THOMAS EUGENE LESTER

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:

Ardena J. Garth                 John Knox Walkup
District Public Defender        Attorney General and Reporter
                            
Rich A. Heinsman, Jr.           Clinton J. Morgan   
Assistant Public Defender       Assistant Attorney General
(At trial)                      425 Fifth Avenue North
                                Nashville, TN 37243-0493
Donna R. Miller
Assistant Public Defender
701 Cherry Street, Suite 301    William H. Cox, III         
Chattanooga, TN 37402           District Attorney General
(On appeal)
                                C. Leland Davis
                                Assistant District Attorney
                                600 Market Street, Suite 310
                                Chattanooga, TN 37402
                          

Judge:Barker

First Paragraph:

The appellant, Thomas Eugene Lester, appeals as of right his
conviction in the Hamilton County Criminal Court of aggravated
assault.  He received a sentence of six years to be served on
intensive probation as a Range I offender.  On appeal, he challenges
only the sufficiency of the evidence.  We affirm appellant's
conviction.

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

STATE OF TENNESSEE
vs.
DAVID RAY McCORMICK

Court:TCCA

Attorneys:

FOR THE APPELLANT                   FOR THE APPELLEE

John Knox Walkup                    Jeffrey A. Devasher
Attorney General and Reporter       Assistant Public Defender
425 Fifth Avenue, North             (On Appeal)
Nashville, TN  37243

Karen M. Yacuzzo                    Stephen G. Young
Assistant Attorney General          Assistant Public Defender
425 Fifth Avenue, North             (At Hearing)
Nashville, TN  378243               1202 Stahlman Bldg.
                                    Nashville, TN  37201
Jim Milam
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN  37201-1649
                          
Judge:LAFFERTY

First Paragraph:

The defendant, David McCormick, pled guilty to aggravated assault. 
The trial court, after a sentencing hearing, sentenced the defendant
to confinement in the community corrections for six years.  As
conditions of this placement in community corrections, the trial court
required the defendant to pay for electronic monitoring; ordered house
arrest except for employment; and ordered the defendant to pay fifty
percent of his net income for restitution and costs.

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

CHARLES D. PRICE
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

THOMAS A. LONGABERGER           JOHN KNOX WALKUP
300 James Robertson Parkway     Attorney General and Reporter
Nashville, Tn  37201
                                ELLEN H. POLLACK
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, Tn  37243

                                VICTOR S. JOHNSON
                                District Attorney General
    
                                STEVE DOZIER
                                Assistant District Attorney
                                Washington Sq., Ste. 500
                                222-2nd Avenue North
                                Nashville, TN  37201-1649                          

Judge:SMITH

First Paragraph:

On November 17, 1995, Appellant, Charles D. Price, entered a guilty
plea to being a habitual motor vehicle offender. After the plea, but
before sentencing, Appellant broke his back. As a result of requiring
medical care and physical therapy to help him recover from his
accident, Appellant agreed to a three year and one day sentence so
that he could be sent to the Special Needs Facility. Appellant began
serving his sentence November 20, 1995. He was granted parole on
February 7, 1997, but was reincarcerated after a parole violation on
March 4, 1997. Appellant filed a writ of habeas corpus in the trial
court, claiming that the sentence imposed in his case was illegal in
that he was improperly sentenced as a Range II offender. Appellant was
released from state custody in November 30, 1997.

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

STATE OF TENNESSEE 
vs.
RODNEY J. D. SMITH

Court:TCCA

Attorneys: 

FOR THE APPELLANT               FOR THE APPELLEE

Shara A. Flacy                  John Knox Walkup
Public Defender                 Attorney General and Reporter
22nd Judicial District          425 Fifth Avenue, N.
128 N. Second St.               Nashville, TN  37243
Pulaski, TN  38478

Daniel J. Runde                 Karen M. Yacuzzo
Assistant Public Defender       Assistant Attorney General
22nd Judicial District          425 Fifth Avenue, N.
128 N. Second St.               Nashville, TN  378243
Pulaski, TN  38478
                                Mike Bottoms
                                District Attorney General
                                P. O. Box 459 
                                Lawrenceburg, TN  38464

                                James G. White
                                Asst District Attorney General
                                P. O. Box 459
                                Lawrenceburg, TN  38464
                         

Judge:LAFFERTY

First Paragraph:

The defendant presents an appeal as of right from the judgment of the
trial court denying probation or an alternative sentence.  On December
6, 1996, the defendant entered a plea of nolo contendere in cause
#15,529 to facilitation to commit murder second degree, agreeing to a
sentence of eight (8) years; in cause #15, 298, to the
offense of robbery, agreeing to a sentence of three (3) years
consecutive to #15, 529; in cause #15, 299, in counts one and two to
the offense of robbery, agreeing to a sentence
of six (6) years concurrently on each count; in cause # 15,300, in
counts one and two to the offense of robbery, agreeing to a sentence
of six (6) years concurrently on each
count; and in cause #15,301 to the offense of robbery, agreeing to a
sentence of four (4) years consecutive to causes #15,529 and #15,298. 
The agreed sentence was a Range I, maximum of 15 years and it was
understood the defendant would seek probation or an alternative
sentence.

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

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