TBALink Opinion-Flash

December 18, 1998 -- Volume #4 -- Number #181

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):
00-New Opinion(s) from the Tennessee Supreme Court
00-New Opinion(s) from the Tennessee Supreme Court Workers Comp Panel
00-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
13-New Opinion(s) from the Tennessee Court of Appeals
00-New Opinion(s) from the Tennessee Court of Criminal Appeals
00-New Judicial Ethics Opinion(s)
00-New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Lucian T. Pera
Editor-in-Chief, TBALink


ROBERT E. BANKS and wife
DOROTHY BANKS
vs.
POLK COUNTY, TENNESSEE, ET AL

Court:TCA

Attorneys: 

JAMES F. LOGAN, JR., LOGAN, THOMPSON, MILLER, BILBO, THOMPSON &
FISHER, P.C., Cleveland, for Plaintiffs-Appellants.
DAVID F. HARROD, CARTER, HARROD & CUNNINGHAM, Athens, for
Defendant-Appellee, Polk County.

Judge: Franks

First Paragraph:

Plaintiffs' action to rescind a deed granted to defendant county for
construction of a road across plaintiffs' property, and/or for damages
for breach of contract, was dismissed by the Trial Judge at conclusion
of plaintiffs' proof, and plaintiffs have appealed. 

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

IN THE MATTER OF:  
THE ESTATE OF LEN C. BELEW, 
DECEASE

SANDRA BELEW
vs.
DAVID HUGHES BELEW

Court:TCA

Attorneys: 

J. MIKEL DIXON, Knoxville, for Appellant.
ANNA F. HINDS, JAMES P. MYNATT, JR., Stone & Hinds, P.C., Knoxville,
for Appellee.

Judge: McMurray

First Paragraph:

This case involves a question of the validity of an antenuptial
agreement.  After the decedent Len Belew's death, his widow, Sandra
Belew (petitioner) filed a petition for an elective share of his
estate.  After a hearing, the Clerk & Master found enforceable an
antenuptial agreement between petitioner and decedent which provided
that each party "hereby waives, releases and relinquishes all right,
title, estate and interest, statutory or otherwise, [to] ... spousal
elective share ... ."  Upon exception to the Master's report by
petitioner, the Knox County Chancery Court approved and upheld the
Master's findings and conclusions.  The issue presented is whether the
petitioner knowledgeably entered into the antenuptial agreement.  Both
the Clerk & Master and the Chancery Court answered this question in
the affirmative.  We affirm the judgment of the trial court.

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

CITY OF CHATTANOOGA, TENNESSEE
and HAMILTON COUNTY, TENNESSEE
vs. 
CLASSIC REFINERY, INC., GARY
FILLERS, and THE UNITED STATES
OF AMERICA/INTERNAL REVENUE SERVICE

Court:TCA

Attorneys: 

HAROLD L. NORTH, JR., OF CHATTANOOGA FOR CLASSIC REFINERY, INC., AND
GARY FILLERS
M. KENT ANDERSON, Assistant U.S. Attorney, OF CHATTANOOGA FOR INTERNAL
REVENUE SERVICE
DOUGLAS M. COX OF CHATTANOOGA FOR CITY OF CHATTANOOGA and HAMILTON
COUNTY

Judge: Goddard

First Paragraph:

Classic Refinery Inc., and Gary Fillers, the sole stockholder of
Classic, appeal an order of taking rendered by the Circuit Court of
Hamilton County in favor of the City of Chattanooga, and Hamilton
County, Tennessee.  This order awarded the City and County fee simple
title in property owned by Classic and located adjacent to the Finley
Stadium Project in downtown Chattanooga. 

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

GARLENA GALE DAVENPORT
vs.
BRADLEY CURTIS DAVENPORT

Court:TCA

Attorneys: 

CHARLES H. CHILD, O'CONNOR, PETTY, CHILD & BOSWELL, Knoxville, for
Appellant-Plaintiff.
THOMAS F. MABRY, Oak Ridge, for Appellee-Defendant.                         

Judge: Franks

First Paragraph:

In this custodial dispute, the Trial Judge ordered 50/50 visitation,
i.e., a rigid alternate weekly schedule between the parents on the
grounds there had been a material change in circumstances to justify
the changed visitation schedule. 

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

REVIS DALE DUBBERLY
vs.
LYNN TRUCK SERVICES, INC.,
d/b/a E.D.S. OF ATHENS
and 
CLAUDE AND BETTY THOMPSON

Court:TCA

Attorneys: 

ROBERT J. UHORCHUK, SPICER, FLYNN & RUDSTROM, PLLC, Chattanooga, for
Appellee, Lynn Truck Service, Inc.
RANDY G. ROGERS, Athens, for Defendants-Appellants.                         

Judge: Franks

First Paragraph:

Plaintiff Dubberly brought suit for workers compensation benefits, and
defendant Lynn Truck Service ("Lynn") settled the claim.  The Trial
Court then held that defendant Claude Thompson was obligated to
compensate Lynn for the amount of this settlement with plaintiff
Dubberly.  Thompson has appealed. 

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

MALCOLM ELAM
VS.
STEVEN R. SEIVERS, ESQ

Court:TCA

Attorneys: 

JERROLD L. BECKER and SAMUEL W. BROWN OF KNOXVILLE FOR APPELLANT
R. FRANKLIN NORTON, GEOFFREY D. KRESSIN and W. MITCHELL CRAMER OF
KNOXVILLE FOR APPELLEE

Judge: Goddard

First Paragraph:

In this legal malpractice suit Malcolm Elam sues Steven R. Seivers, an
attorney who he had employed to prepare warranty and trust deeds on
two separate pieces of property, alleging that he was responsible for
damages resulting to Mr. Elam in failing to record the trust deeds. 
One tract is described as the Jonathan Lane property and the other as
the Wainwright Road property.  The warranty deeds conveyed the two
tracts to Terry R. Fowler and the trust deeds conveyed them in trust
to secure the purchase price owed Mr. Elam. 

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

CARL LAWSON, Administrator oF
the Estate of JEFFREY LYNN 
LAWSON, and BESSIE and CARL
LAWSON, as next of kin to
JEFFREY LYNN LAWSON
VS.
STATE OF TENNESSEE

Court:TCA

Attorneys: 

For Appellants                  For Appellee
THOMAS RICHARD SPRADLIN         JOHN KNOX WALKUP
Morristown, Tennessee           Attorney General and Reporter
                                Nashville, Tennessee
DENISE TERRY STAPLETON
Terry, Terry & Stapleton        ARTHUR CROWNOVER II
Morristown, Tennessee           Assistant Attorney General
                                Nashville, Tennessee                         

Judge: Susano

First Paragraph:

This appeal involves a claim for post-trial, prejudgment interest.  It
arises out of an action for damages brought by Bessie and Carl Lawson
("the claimants") for the wrongful death of their son, Jeffrey Lynn
Lawson ("Mr. Lawson").  After Mr. Lawson, an inmate at the
Southeastern Tennessee State Regional Correctional Facility in
Pikeville, Tennessee, was murdered by another inmate, the claimants
filed this action against the State of Tennessee with the Tennessee
Claims Commission.  The matter was tried before Claims Commissioner
Michael S. Lacy ("Commissioner") on June 29 and 30, 1994.  Some three
years later, on July 28, 1997, the Commissioner entered judgment in
favor of the claimants for $75,000, finding that the State had been
negligent in the care, custody and control of Mr. Lawson. 

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

USI CAR EXCHANGE, INC. and CHARLES  
R. WEEMS, Individually
VS.
LONG PONTIAC COMPANY and ALLAN  
LEDFORD, Individually
VS.
ALLAN LEDFORD, Individually and wife, 
TERRI LEDFORD, Individually; ALLAN     
LEDFORD d/b/a PRESTIGE CLEANERS,       
a Sole Proprietorship; SIGNATURE AUTO 
CREDIT, INC.; MIDDLE TENNESSEE MOTOR  
CARS, INC.; GAMBLE MOTOR COMPANY,     
INC.; WSI CAR EXCHANGE, INC.;         
CHARLES R. WEEMS, Individually; ROBERT
OLIVER, Individually and wife, LOIS   
OLIVER, Individually

Court:TCA

Attorneys:  

For Appellant                       For Appellee Charles R. Weems
                                    and USI Car Exchange, Inc.
F. SCOTT LEROY                      
Leitner, Williams, Dooley           DAVID B. KESLER
 & Napolitan, PLLC                  STACIE L. CARAWAY
Chattanooga, Tennessee              Spears, Moore, Rebman &
                                        Williams
                                    Chattanooga, Tennessee
                                    For Appellee Middle
                                    Tennessee Motor Cars, Inc.

                                    NADER BAYDOUN
                                    STEPHEN KNIGHT
                                    Baydoun & Reese, P.A.
                                    Nashvile, Tennessee

                                    For Appellee Gamble
                                    Motor Company, Inc.

                                    K. STEPHEN POWERS
                                    LISA M. PATE
                                    Witt, Gaither & Whitaker, P.C.
                                    Chattanooga, Tennessee
                        

Judge: Susano

First Paragraph:

This is an action for damages filed by Long Pontiac Company ("Long"),
against multiple defendants, arising out of the defalcations of Long's
agent, Allan Ledford ("Ledford").  Long appealed from the trial
court's judgment, arguing that the trial court erred in granting
summary judgment to the defendants, Charles R. Weems ("Weems"), USI
Car Exchange, Inc. ("USI"), Gamble Motor Company, Inc. ("Gamble"), and
Middle Tennessee Motor Cars, Inc. ("MTMC"), all of whom acknowledge
purchasing automobiles from Ledford at Long's place of business. 
Long, in its complaint for fraud, conspiracy to defraud, conversion,
and gross negligence, alleges that the defendants knew or should have
known (a) that Ledford was engaging in criminal activity to defraud
Long and (b) that Ledford was exceeding the authority granted to him
by Long.  The trial court concluded that no genuine issues of material
fact existed with respect to Long's claims and, furthermore, that the
defendants were entitled to summary judgment as a matter of law.

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

IVA MADDOX
VS.
LOUDON COUNTY BOARD OF   
ZONING APPEALS

Court:TCA

Attorneys: 

HUBERT PATTY OF MARYVILLE FOR APPELLANT
HARVEY L. SPROUL OF LENOIR CITY FOR APPELLEE                         

Judge:Goddard

First Paragraph:

Iva Maddox initiated this lawsuit in the Chancery Court of Loudon
County by filing a complaint against the County of Loudon, later
amended by consent to substitute the Loudon County Board of Zoning
Appeals as the party Defendant.  Ms. Maddox sought to overturn a
ruling of the Board of Zoning Appeals that she was not entitled to a
variance as to set-back lines with regard to an addition to her home.

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

TOMMALISA L. MIFFLIN
VS.
RANDOLPH L. MIFFLIN

Court:TCA

Attorneys: 

DARRYL W. HUMPHREY, Knoxville, for Appellant.
DONNY M. YOUNG, Louisville, for Appellee.                         

Judge: McMurray

First Paragraph:

This is an appeal from a final decree granting a divorce to the
appellee, granting joint custody of the parties' minor child with the
appellee to be the custodial parent, awarding child support, and
making other provisions, none material to this appeal.  We affirm the
judgment of the trial court.

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

PHYLLIS PHILLIPS
AND
ARNOLD PHILLIPS
VS.
VICTORIA LIEB

Court:TCA

Attorneys: 

For Appellants                  For Appellees
STEPHEN A. MARCUM               CHARLES B. SEXTON
P. EDWARD PRATT                 PHILIP A. KAZEE
JASON I. EPSTEIN                Sexton, Sexton & Kazee, P.C.
Baker, Donelson, Bearman,       Oneida, Tennessee
  & Caldwell
Knoxville, Tennessee                         

Judge: Susano

First Paragraph:

This is a negligence action arising out of a two-vehicle collision
that occurred on U.S. Highway 27 ("Highway 27") near its intersection
with Main Street in Oneida, Tennessee.  The jury returned a verdict
for the plaintiff, Phyllis Phillips, in the amount of $25,000, finding
the defendant, Victoria Lieb, 100% at fault.  The defendant appealed,
arguing that the trial court erred in its charge to the jury.

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

BROMLEY SAMMONS
VS.
FLETCHER MILLER and JEAN MILLER

Court:TCA

Attorneys: 

D. MITCHELL BRYANT, Cleveland, for Appellant.
ARVIN H. REINGOLD, Chattanooga, for Appellees.                         

Judge: McMurray

First Paragraph:

The appellant, Bromley Sammons, and the appellees, Fletcher and Jean
Miller, own adjoining tracts of land in Hamilton County, Tennessee. 
Mr. Sammons' eastern property line adjoins the Millers' western
property line.  Mr. Sammons first filed an action regarding the
subject boundary line in 1983, but that action was dismissed for
failure to prosecute.  At some time, the action was reinstated and
then dismissed several times before it was finally heard by the trial
court in November 1997.

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

JAN WATERS
VS.
STATE OF TENNESSEE

Court:TCA

Attorneys:  

ROGER E. JENNE and MICHAEL E. JENNE, Cleveland, for
Claimant-Appellant.

JOHN KNOX WALKUP, Attorney General and Reporter, and GEORGE COFFIN,
JR., and LAURA T. KIDWELL, Assistant Attorneys General, Nashville, for
Defendant-Appellee.

Judge: Franks

First Paragraph:

In this action, the Claims Commission denied and dismissed claimant's
claim. Claimant has appealed. Claimant is the surviving spouse of
Joshua Scott Waters who died as the result of an accident occurring on
January 19, 1991, in Polk County, Tennessee, while Waters was
traveling east on Highway 64.  He lost control of his vehicle and his
truck left the roadway and plunged into the Ocoee River, where Waters
died.

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

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