TBALink Opinion-Flash

July 24, 1998 -- Volume #4 -- Number #107

What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.

This Issue (IN THIS ORDER):
03-New Opinons From TSC
01-New Opinons From TSC-Rules
01-New Opinons From TSC-Workers Comp Panel
05-New Opinons From TCA
03-New Opinons From TCCA

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Lucian T. Pera
Editor-in-Chief, TBALink


FRANCES BLANCHARD 
vs. 
ARLENE KELLUM, D.D.S.

Court"TSC

Attorneys:

FOR APPELLANT:                  FOR APPELLEE: 
TIMOTHY A. RYAN III             GEORGE P. BAILEY 
MEMPHIS                         MEMPHIS

Judge: HOLDER

First Paragraph:

This case arose out of a petition for order of contempt filed in this
Court by the Board of Professional Responsibility against John Mark
Hancock.  The petition alleged that Hancock violated an order of
suspension previously entered by this Court by failing to comply with
Tenn. Sup. Ct. R. 9, S 18, which requires a suspended attorney to
notify clients of an order of suspension, move for withdrawal from
pending cases, provide notice to adverse attorneys when clients have
not obtained substitute counsel, and refrain from taking new cases.

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

WILLIAM J. CHASE, JR., AS ADMINISTRATOR C.T.A. 
OF THE ESTATE OF BETTY LOU STIDHAM, DECEASED
vs. 
THE CITY OF MEMPHIS

Court"TSC

Attorneys:

FOR DEFENDANT/APPELLANT/    FOR PLAINTIFF/APPELLEE/CROSS-
CROSS-APPELLEE:             APPELLANT:
Robert M. Fargarson         John J. Heflin III
Martin W. Zummach           Memphis
Memphis
OF COUNSEL:                 FOR INTERVENOR, STATE OF
Monice Moore Hagler         TENNESSEE:
Memphis
                            John Knox Walkup
                            Attorney General and Reporter

                            Meredith DeVault
                            Senior Counsel, Civil Rights and
                            Claims Division
Judge: HOLDER

First Paragraph:

This case involves a tort action against the defendant, City of
Memphis, arising out of a woman's death when she was mauled by two pit
bull dogs.  The Court of Appeals held that the City was immune under
the Governmental Tort Liability Act ("GTLA") but removed the immunity
pursuant to the common law special duty exception to the public duty
doctrine.  The issues with which we are now confronted are whether:
(1)  the City animal shelter's failure to follow-up on an order
requiring the owner of the dangerous dogs to enroll his dogs in
obedience school was immune under the GTLA as a discretionary act or
omission; and (2)  whether the public duty doctrine's special duty
exception can be employed to remove immunity conferred under the GTLA.
We hold that the City's actions or inactions in this case were not
immune under the GTLA and that the special duty exception to the
public duty doctrine cannot be employed to remove immunity conferred
under the GTLA.  The decision of the Court of Appeals is reversed.

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


IN RE:  JOHN MARK HANCOCK

Court"TSC

Attorneys:

For John Mark Hancock:                  For Board of Professional
Ralph E. Harwell                        Responsibility:
RALPH E. HARWELL, P.C.                  William W. Hunt, III
Knoxville, Tennessee                    Disciplinary Counsel
                                        Nashville, Tennessee

Judge: ANDERSON

First Paragraph:

This case arose out of a petition for order of contempt filed in this
Court by the Board of Professional Responsibility against John Mark
Hancock.  The petition alleged that Hancock violated an order of
suspension previously entered by this Court by failing to comply with
Tenn. Sup. Ct. R. 9, S 18, which requires a suspended attorney to
notify clients of an order of suspension, move for withdrawal from
pending cases, provide notice to adverse attorneys when clients have
not obtained substitute counsel, and refrain from taking new cases.

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

BRODERICK KELSEY 
vs. 
KRAFT FOOD SERVICES, INC. 
and TRAVELERS INDEMNITY
COMPANY OF ILLINOIS

Court"TSC - Workers Comp Panel

Attorneys:

For Appellants:                         For Appellee:
Robert J. Uhorchuk                      John D. McMahan
Thomas E. LeQuire                       G. Brent Burks
Spicer, Flynn & Rudstrom                McMahan & Associates
Chattanooga, Tennessee                  Chattanooga, Tennessee
Judge: Loser

First Paragraph:

The appellants contend the trial court's award of benefits based on
six times the medical impairment rating is excessive.  The appellee
contends the award is inadequate because the chancellor erred in
"finding three of the four factors listed under Tenn. Code Ann.
section 50-6-242 were not proven by clear and convincing evidence" and
that the award of benefits based on forty-two percent to the body as a
whole is inadequate.  The appellee also contends the chancellor erred
in failing to award its vocational expert's fee as discretionary
costs.  As discussed below, the panel has concluded the judgment
should be affirmed.

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

SUPREME COURT OF TENNESSEE 
STATE LIST FOR PERMISSION TO APPEAL 
July 20, 1998

Court"TSC - Rules

URL:http://www.tba.org/tba_files/TSC_Rules/statelist35_doc.WP6
Opinion-Flash

PATRICIA P. ASHE
vs.
RADIATION ONCOLOGY ASSOCIATES
and STEVEN L. STROUP, M.D.

Court"TCA

Attorneys:

DAVID RANDOLPH SMITH ROBERT BLAKE MENZEL David Randolph Smith &
Associates Nashville, Tennessee  37203 ATTORNEYS FOR
PLAINTIFF/APPELLANT

THOMAS A. WISEMAN, III NationsBank Plaza, Suite 1900 414 Union Street
Nashville, Tennessee  37219-1782 ATTORNEY FOR DEFENDANTS/APPELLEES

Judge: CAIN

First Paragraph:

This case was tried before a jury in the Circuit Court in Davidson
County on two issues to-wit:  (1) informed consent and (2)
professional negligence. On the issue of informed consent the trial
court directed a verdict for the defendant at the conclusion of the
plaintiff's proof.  On the issue of professional negligence a mistrial
was declared when the jury was unable to agree on a verdict. The case
is now before this court on the sole issue of informed consent.

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

EARNESTINE COLE 
vs. 
STATE OF TENNESSEE

Court"TCA

Attorneys:

William B. Raiford, III; Merkel & Cocke, P.A. of Clarksdale,
Mississippi For Appellant

Beauchamp E. Brogan, General Counsel JoAnn C. Cutting, Assistant
General Counsel For Appellee

Judge: CRAWFORD

First Paragraph:

This is a medical malpractice case tried by the Tennessee Claims
Commission.  Claimant/Appellant Earnestine Cole (Cole) appeals from
the judgment of the Claims Commission for Defendant/Appellee State of
Tennessee.  Cole filed this complaint alleging that she had a tubal
ligation and sterilization performed while a patient at the Regional
Medical Center in Memphis, Tennessee.  She avers that she was under
the care and treatment of Dr. Lynn Ware, a medical resident employee
of the State of Tennessee at the University of Tennessee School of
Medicine, who was under the supervision of Dr. Bertram Buxton, a
professor at the university.  Cole essentially alleges that the
defendant, State of Tennessee, through its employees, breached the
recognized standard of acceptable professional practice in its medical
treatment, thus resulting in her becoming pregnant after the operation
was performed.

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

RONALD COLLIER 
vs. 
TENNESSEE DEPARTMENT OF CORRECTION, ET AL.

Court"TCA

Attorneys:

Ronald Collier, #74897 TCIP, U5B103 Route 1 Only, Tennessee 37140-9709
PRO-SE FOR PLAINTIFF/APPELLANT

JOHN KNOX WALKUP Attorney General and Reporter

MICHAEL E. MOORE Solicitor General

SOHNIA W. HONG, BPR #17415 Civil Rights and Claims Division 2nd Floor,
Cordell Hull Building 425 5th Avenue North Nashville, Tennessee 37243
ATTORNEYS  FOR DEFENDANTS/APPELLEES

Judge: TODD

First Paragraph:

The captioned prisoner confined in the punitive custody of the
Tennessee Department of Correction filed in the Trial Court a
"Petition for Declaratory Judgment," naming as defendants the
Department, its Commissioner and W. G. Lachie, Legal Assistant.  The
latter individual is identified by the petition as a legal assistant
to "the defendant."

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

ROBERT L. DeLANEY 
vs. 
BROOK K. THOMPSON, et al.

Court"TCA

Attorneys:

For Plaintiff/Appellee:         For Defendants/Appellants:
Robert L. DeLaney               John Knox Walkup
Nashville, Tennessee            Attorney General and Reporter

                                Michael E. Moore
                                Solicitor General

                                Michael W. Catalano
                                Associate Solicitor General

                                For Amicus  Curiae
                                American Judicature Society:                        
                                Harris A. Gilbert
                                Patricia J. Cottrell
                                Barry Friedman
                                Wyatt, Tarrant & Combs
                                Nashville, Tennessee
                                
Judge: RUSSELL

First Paragraph:

This is an expedited appeal before a special panel of the Middle
Section of the Tennessee Court of Appeals sitting in Nashville.  The
subject matter is the constitutional validity of the Tennessee Plan
for the selection and retention of state judges as established by the
General Assembly and documented in T.C.A. Secs. 17-4-101, et  seq.

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

JAMES DAVID GATLIN
vs.
DEANNA E. GATLIN

Court"TCA

Attorneys:

For the Plaintiff/Appellant:            For the Defendant /Appellee:
David M. Livingston                     Deanna E. Gatlin, Pro Se
Brownsville, Tennessee                  Trenton, Tennessee

For the Minor Child, William James
Nathan Melton:
Jerald M. Campbell, Jr.
Trenton, Tennessee

Judge: LILLARD

First Paragraph:

This is a paternity case.  The mother and father married after the
child was born, and later divorced.  In the divorce decree, the father
was ordered to pay child support.  The father later sought to set
aside the order of child support and requested parentage testing.  The
trial court denied the father's petition, and he appealed.  We affirm.

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

STATE OF TENNESSEE
vs.
BRYAN E. BASTEL

Court"TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:
Edward Witt Chandler            John Knox Walkup
Attorney at Law                 Attorney General & Reporter 
2502 Mt. Moriah Rd., # A100     
Memphis, TN 38115               Marvin E. Clements, Jr.
                                Assistant Attorney General
                                Criminal Justice Division
                                Cordell Hull Building, 2nd Floor
                                425 Fifth Avenue North
                                Nashville, TN 37243

                                William L. Gibbons
                                District Attorney General

                                Lee Coffee
                                Assistant District Attorney General
                                201 Poplar Avenue, Suite 301
                                Memphis, TN 38103

Judge: SUMMERS

First Paragraph:

Originally charged with aggravated assault, the appellant, Bryan
Bastel, pled guilty to assault in the Shelby County Criminal Court. 
The court denied the appellant's petition for a suspended sentence and
sentenced him to serve thirty days in the Shelby County Correctional
Center.  He appeals.  The sole issue for our review is whether the
trial court erred in denying an alternative sentence.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE
vs.
MICHAEL BENSON

Court"TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:
Guy T. Wilkinson                John Knox Walkup
Public Defender                 Attorney General & Reporter

Richard DeBerry                 Douglas D. Himes
Assistant Public Defender       Assistant Attorney General
605 Court Street, Suite 3       425 Fifth Avenue North
Savannah, TN 38372              Nashville, TN 37243-0493
                
                                Robert "Gus" Radford        
                                District Attorney General
                        
                                John Overton    
                                Assistant District Attorney General
                                P.O. Box 484
                                Savannah, TN 38372

Judge: SUMMERS

First Paragraph:

The appellant, Michael Benson, appeals his sentence of six years for
the killing of his brother-in-law, Donnie Ray Qualls.  On June 4,
1997, the appellant pled guilty to voluntary manslaughter pursuant to
a negotiated plea agreement and received a six-year sentence as a
Range I, standard offender.  A sentencing hearing was held on August
4, 1997, and the trial court denied the appellant's request for an
alternative sentence.  He was ordered to serve his sentence in
confinement. The appellant's sole issue on appeal is whether the trial
court erred by denying him probation.  We affirm the appellant's
sentence.

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

STATE OF TENNESSEE
vs.
MELVIN BOYD, JR.

Court"TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:
G. STEPHEN DAVIS                JOHN KNOX WALKUP
District Public Defender        Attorney General & Reporter
P. O. Box 742
Dyersburg, TN 38025-0742        GEORGIA BLYTHE FELNER
                                Asst. Attorney General
                                John Sevier Bldg.
                                425 Fifth Ave., North                                   
                                Nashville, TN  37243 0493
                
                                C. PHILLIP BIVENS
                                District Attorney General
                                P. O. Drawer E  
                                Dyersburg, TN 38024

Judge: PEAY

First Paragraph:

ollowing a jury trial, the defendant was found guilty of driving after
having been declared a motor vehicle habitual offender pursuant to
T.C.A. S 55-10 616.  The trial court sentenced him to two years in the
Tennessee Department of Correction.  He now appeals as of right,
challenging the sufficiency of the evidence to support his conviction
and arguing that the trial court erred in failing to consider and
order an alternative sentence.  Finding no merit in the defendant's
arguments, we affirm his conviction and sentence.

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

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