TBALink Opinion-Flash

August 21, 1998 -- Volume #4 -- Number #124

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.

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00-New Opinons From TSC
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Lucian T. Pera
Editor-in-Chief, TBALink


FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
vs.
RONALD A. WHITE, BERYL A. WHITE,
and DEBRA K. WHITE

Court:TCA

Attorneys:

F. D. GIBSON, Maryville, for Appellants.

GORDON D. FOSTER, Lacy & Winchester, Knoxville, for Appellee.

Judge:McMurray

First Paragraph:

This action was instituted in the Chancery Court for Blount County
seeking to revive, by scire facias, a judgment previously obtained by
the plaintiff against the defendants.  The previous judgment had been
obtained in the Circuit Court of Blount County.  The chancellor
elected to order this action transferred to the circuit court rather
than dispose of the matter in chancery court.  The chancery court
action was filed less than ten (10) years after the previous judgment
was obtained in circuit court.  Ten (10) years had expired, however,
before the action was transferred to the circuit court.  The
defendants moved to dismiss the circuit court action on the grounds
that the ten year statute of limitations for judgments as provided in
T.C.A. S 28-3-110 had expired.  The motion was overruled.  Thereafter,
judgment was entered reviving and extending the previous judgment for
a new statutory period.  This appeal resulted.  We affirm the judgment
of the trial court.

URL:http://www.tba.org/tba_files/TCA/1sttnbkn_opn.WP6
Opinion-Flash

LEROY DAMRON
vs.
YELLOW FREIGHT SYSTEM, INC.,
JERI ELLISON, CAROL HERTHEL

Court:TCA

Attorneys:

Leroy Damron
514 Temple Ford Road
Shelbyville, Tennessee 37160
PRO SE FOR PLAINTIFF/APPELLANT

Wade B. Cowan
315 Deaderick Street
Suite 1425
Nashville, Tennessee 37238-1425
ATTORNEY FOR DEFENDANTS/APPELLEES

Judge:TODD

First Paragraph:

The plaintiff, Leroy Damron, has appealed from a summary judgment
dismissing his suit against his former employer Yellow Freight
Systems, Inc., (hereafter "Yellow") and two of its office employees
for wages withheld because of levy process issued by the U.S. Internal
Revenue Service (hereafter IRS) to collect delinquent income taxes
assessed against plaintiff.  Plaintiff presents the following issues:
I. Whether the trial court erred in failing to consider that the
Notice of Levy was defective. II. Whether trial court erred in
granting summary judgment in favor of defendant/appellee, Yellow
Freight System, Inc., on the grounds that there was no relief
available from state courts and Tennessee Law because
defendant/appellee had immunity under the Internal Revenue Code for
turning over wages in compliance with a defective Notice of Levy
issued by the Internal Revenue Service.

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

MARY F. HALL and DON K. HALL
vs.
MARY ROSE PIPPIN and DALE DELANEY

Court:TCA

Attorneys:

For Plaintiffs/Appellees:           For Defendants/Appellants:
Manuel F. Edwards                   William R. Draper
Cookeville, Tennessee               Cookeville, Tennessee

T. Michael O'Mara                   Thomas F. Bloom
Cookeville, Tennessee               Nashville, Tennessee

Judge:KOCH

First Paragraph:

This appeal stems from a dispute between neighbors over the use of an
old road in rural Putnam County.  After the owners of one tract began
to erect a fence across the road, the owners of the neighboring tract
filed suit in the Chancery Court for Putnam County seeking injunctive
and declaratory relief concerning their right to continue to use the
road to gain access to their property.  The trial court heard the case
without a jury and determined that the disputed road ran along the
roadbed of an old public road and that the abutting landowners had not
abandoned their use of the old road even though it had fallen into
disrepair.  Accordingly, the trial court granted the plaintiff
landowners an easement over the portion of the defendant neighbors'
property where the old road ran.  On this appeal, the defendant
neighbors assert that the old public road had been abandoned and that
the disputed road did not run along the roadbed of the old road. 
Accordingly, they insist that the old road could not supply a basis
for an easement.  We have determined that the judgment should be
affirmed.

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

DONALD EUGENE HARRIS
vs.
GLENN S. BUCKSPAN, M.D., individually and
GLENN S. BUCKSPAN, M.D.,P.C.

Court:TCA

Attorneys:

LARRY D. ASHWORTH
227 Second Avenue, North
Nashville, Tennessee  37201

PETER D. HEIL
P. O. Box 40651
Nashville, Tennessee  37204
ATTORNEYS FOR PLAINTIFF/APPELLANT

C. J. GIDEON, JR.
JOE W. ELLIS, II 
NationsBank Plaza, Suite 1900
414 Union Street 
Nashville, Tennessee  37219-1782 
ATTORNEYS FOR DEFENDANT/APPELLEE

Judge:CAIN

First Paragraph:

This is a medical malpractice action in which the plaintiff appeals
from a directed verdict in favor of the defendant.

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

JEROME R. HERBISON and 
MARGARET H. HERBISON 
vs. 
HANSEN CHRYSLER-PLYMOUTH, INC.

Court:TCA

Attorneys:

Robert L. Whittaker, #17209 
1712 Parkway Towers 
404 James Robertson Parkway 
Nashville, Tennessee 37219

John E. Herbison, #12659 
2016 Eighth Avenue South 
Nashville, Tennessee 37204 
ATTORNEYS FOR PLAINTIFFS/APPELLANTS

Gareth S. Aden, #2371 
GULLETT, SANFORD, ROBINSON & MARTIN, PLLC 
230 Fourth Avenue North, 3rd Floor
P.O. Box 198888 
Nashville, Tennessee 37219-8888 
ATTORNEY FOR DEFENDANT/APPELLEE

Judge:TODD

First Paragraph:

The plaintiffs, Jerome R. And wife Margaret Herbison, have appealed
from the summary dismissal of their suit against the defendant, Hansen
Chrysler-Plymouth, Inc., for injuries received by Mr. Herbison on the
premises of the defendant when he tripped on a metal strip imbedded in
the concrete floor on the premises of defendant.

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

BARBARA JEAN HOPPER 
vs. 
DAVID C. TABOR, Individually and 
d/b/a EAST TENNESSEE HEMOTOLOGY-ONCOLOGY, P.C.

Court:TCA

Attorneys:

THOMAS R. BANDY, III, Kingsport, for Appellant.

CHARLES T. HERNDON IV, Johnson City, for Appellees.

Judge:McMurray

First Paragraph:

This is a medical malpractice case.  The defendants filed a motion for
summary judgment supported by the affidavit of defendant, Dr. David C.
Tabor, which, among other things, specifically stated that he was
familiar with the standard of care for physicians and surgeons
practicing the specialty of oncology in Johnson City, Tennessee, and
similar communities.  He further deposed that at all times, in his
care and treatment of the plaintiff's decedent, Mark A. Hopper, he
"conformed to the standard of care for physicians in the practice of
oncology and did not deviate or depart therefrom."  Thus, Dr. Tabor,
through his affidavit, prima facie, established that he was entitled
to judgment as a matter of law absent countervailing evidence
presenting a genuine issue of a material fact.

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

STEVE W. KILLIAN 
vs. 
TABOR CONSTRUCTION, INC.

Court:TCA

Attorneys:

THOMAS R. HENLEY, Lufkin, Henley & Conner, Knoxville, for Appellant.

C. PAUL HARRISON, Long Ragsdale & Waters, Knoxville, for Appellee.

Judge:McMurray

First Paragraph:

This is an action for breach of contract.  The plaintiff alleged in
his complaint that he had contracted with the defendant whereby the
defendant was to construct a house for him.  During the course of the
construction, he removed the defendant from the job, allegedly for
breach of contract, and hired a substitute to complete the project.
The defendant denied that it had breached the contract, but on the
contrary, filed a counterclaim seeking damages from the plaintiff
alleging that the plaintiff was the party guilty of breaching the
contract.  After a bench trial, the court took the matter under
advisement and subsequently issued a memorandum opinion wherein the
original complaint was dismissed.  The plaintiff was found to have
breached the contract with the defendant, however, the court found
that no damages had been proved and gave no judgment for damages on
the counterclaim.  The defendant appealed.  We modify the judgment of
the trial court and affirm as modified.

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

KENNETH RAY MAYFIELD, SR. 
vs. 
NANCY PRECELLA MAYFIELD

Court:TCA

Judge:Inman

First Paragraph:

Appellant seeks rehearing or reconsideration of the memorandum opinion
filed by this Court on July 30, 1998, and for cause avers that "no
marital dissolution agreement was ever signed or entered by the
parties.  The parties simply appeared before the court and announced
an agreement to the court."  Further, that "wife, nor her counsel, had
no time to retract the agreement at that time, as it was not learned
by counsel, until the next day, that the verbal agreement which Wife
stated before the court had actually been coerced by Husband under
duress."

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

MICHAEL MEYERS 
vs. 
MARK A. COLE

Court:TCA

Attorneys:

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

Stephen M. Miller                   George E. Copple, Jr. 
Nashville, Tennessee                Nashville, Tennessee

Judge:LILLARD

First Paragraph:

This case involves the dissolution of a partnership formed to create
and sell music.  The trial court determined the partners' respective
rights in some properties and ordered some items sold.  We remand.

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

GERALD A. OTTINGER 
vs. 
KIMBERLY S. OTTINGER

Court:TCA

Attorneys:

J. RONNIE GREER, Greeneville, for Appellant.

CLYDE A. DUNN, Newport, for Appellee

Judge:McMurray

First Paragraph:

This is a child custody case in which both Gerald Ottinger (father)
and Kimberly Ottinger (mother) filed petitions for primary residential
custody of their daughter, Marlah Whitley Ottinger.  The trial court
granted joint legal custody to the parties and awarded primary
residential custody to the father.  The mother appeals, asserting that
the court should have awarded her primary residential custody.  We
affirm the judgment of the trial court.

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

REBA PINSON 
vs. 
HOPKINS SURVEYING GROUP, INC.

Court:TCA

Attorneys:

CHARLES P. DUPREE, Chattanooga, for Appellant.

R. DEE HOBBS, Chattanooga, for Appellee.

Judge:McMurray

First Paragraph:

The genesis of this action is a property boundary line dispute between
the plaintiff and others.  Plaintiff, Reba Pinson, filed suit against
Hopkins Surveying Group, Inc., alleging that she had hired the
defendant to survey her property in conjunction with the boundary line
dispute.  Here she alleges that the defendant negligently and
erroneously conducted a survey of the disputed property line.
Defendant moved for summary judgment and the trial court granted the
motion and dismissed the case.  This appeal resulted.  We affirm the
judgment of the trial court.

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

CHARLES STEPHEN SANFORD 
vs. 
TENNESSEE DEPARTMENT OF ENVIRONMENT &
CONSERVATION and TENNESSEE CIVIL SERVICE COMMISSION

Court:TCA

Attorneys:

James G. Stranch III 
Bryan E. Pieper 
Branstetter, Kilgore, Stranch &
Jennings of Nashville 
For Appellee

John Knox Walkup, Attorney General and Reporter 
Eugenia B. Whitesell,
Assistant Attorney General 
For Appellants

Judge:CRAWFORD

First Paragraph:

This is an appeal from the trial court's reversal of a final order of
the Tennessee Civil Service Commission (the Commission).  The
Commission's final order upheld Petitioner/Appellee Charles Sanford's
termination of employment with the Department of Environment and
Conservation (TDEC) based on insubordination.  The trial court
reversed the Commissioner's order, finding that it was not supported
by substantial and material evidence.

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

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