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 and the TN Attorney General.
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BOBBY L. CAMPER, II, v. DANIEL B. MINOR, Administrator ad litem of the ESTATE OF JENNIFER L. TAYLOR, and SHARON R. BARNETT, Court:TSC For Plaintiff-Appellant: For Defendants-Appellees: John P. Chiles Jack M. Vaughn Kingsport, Tennessee Fuller & Vaughn Kingsport, Tennessee Thomas F. Bloom Nashville, Tennessee First Paragraph: In this negligent infliction of emotional distress case, the plaintiff Bobby L. Camper, II, appeals from the Court of Appeals' judgment granting the defendants a summary judgment. This case presents two issues for our determination: (1) whether a non-negligent driver who suffered no substantial physical injury may recover for emotional injuries under the facts presented in this case; and (2) whether the "family purpose doctrine" survives the adoption of comparative negligence and the abolition of joint and several liability. URL:http://www.tba.org/tba_files/TSC/CAMPER.OPN.WP6 TATE OF TENNESSEE, v. BILLY D. FRASIER, And DISSENTING OPINION Court:TSC For Appellee: For Appellant: Charles W. Burson Donald G. Dickerson Attorney General & Reporter Cookeville, Tennessee Kathy Morante Deputy Attorney General Nashville, Tennessee William Edward Gibson District Attorney General Thirteenth Judicial District Owen G. Burnett Assistant District Attorney Cookeville, Tennessee First Paragraph: This case presents the following issues for our determination: (1) whether a person who has been stopped by the police for driving under the influence (DUI) has a right, under either the state or federal constitutions, to consult with an attorney prior to making a decision as to whether to submit to or refuse a blood or breath test; and (2) whether such a person's state or federal constitutional right against self-incrimination prohibits a refusal to submit to such a test from being admitted as evidence at trial, when the person was not informed that the evidence could be used against him or her. We answer both questions in the negative, and therefore affirm the judgment of the Court of Criminal Appeals, which declined to suppress the evidence of the refusal. URL:http://www.tba.org/tba_files/TSC/FRASIERB.OPN.WP6 URL:http://www.tba.org/tba_files/TSC/FRASIERB.DIS.WP6 JOSIE GRAY, ADMIN OF THE ESTATE OF PEGGY M. BUSH, DECEASED, v. FORD MOTOR COMPANY, Court:TSC For Plaintiff-Appellant: For Defendants-Appellees: Stephen L. Swann Ward DeWitt, Jr. Arlington, VA Mary Ellen Morris Trabue, Sturdivant & DeWitt AMICUS CURIAE: E. Blake Moore John B. Bennett Spears, Moore, Rebman & Williams First Paragraph: Pursuant to Rule 23, Rules of the Tennessee Supreme Court, the Court has accepted for decision the following question of law certified by the Sixth Circuit Court of Appeals: Whether principles of comparative fault should apply in Tennessee medical malpractice actions so as to result in the apportionment of damages between the estate of a decedent who acted negligently in causing an initial injury and a physician who negligently treated the decedent for that injury. URL:http://www.tba.org/tba_files/TSC/GRAYJ.OPN.WP6 JOSEPH CARL OWENS, v. TRUCKSTOPS OF AMERICA, TRUCKSTOPS OF AMERICA, INC., AND B.P. AMERICA, INC., v. B. MICHAEL DESIGN, INC., AND VITRO PRODUCTS, INC., And DISSENTING (IN PART) OPINION Court:TSC For Plaintiff/Appellant: For Defendants/Third-Party Plaintiffs/Appellees: Steve North Mark North Barry L. Howard Nashville Michael H. Johnson Gracey, Ruth, Howard, Tate & Sowell For Third-Party Defendants/ Appellees: Martin D. Holmes Stewart, Estes & Donnell John M. Bryant, Jr. W. Bryan Brooks Brewer, Krause & Brooks First Paragraph: This interlocutory appeal presents for determination the principles of comparative fault applicable to the assessment of liability among joint tortfeasors and the application of those principles to this transitional case, in which the cause of action accrued prior to the decision in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). The decision of the Court of Appeals is modified and the case is remanded to the trial court. URL:http://www.tba.org/tba_files/TSC/OWENSJC.OPN.WP6 URL:http://www.tba.org/tba_files/TSC/OWENSJC.DIS.WP6 STATE OF TENNESSEE, v. JOSEPH R. RICCI, & JOSEPH D. RICCI, Court:TSC For the Appellant: For the Appellees: Charles W. Burson Mark C. Scruggs Attorney General and Reporter Nashville, TN Eugene J. Honea Assistant Attorney General Victor S. Johnson, III District Attorney General Deb U. Smith Assistant District Attorney General First Paragraph: In this case we are called upon to determine whether the application of the pre-1989 statute of limitations to the offenses for which defendants were indicted violates the ex post facto provisions of the United States and Tennessee constitutions. We find that the circumstances of this case do not implicate the ex post facto provisions. The applicable statute of limitations does not bar prosecution of defendants for those security fraud violations that occurred after September 28, 1988, or for earlier violations which could not have been reasonably discovered prior to that date. URL:http://www.tba.org/tba_files/TSC/RICCIJR.OPN.WP6 RICKEY ALLEN FRY, v. JANE ANN CERMOLA, Court:TCA DOUGLAS R. BEIER of EVANS & BEIER, Morristown, for Appellant ETHEL P. LAWS, Morristown, for Appellee First Paragraph: The Hamblen County Juvenile Court awarded the custody of Rikki Jacqueline Fry, a minor, to her father, Ricky Allen Fry. The trial court's order modified an earlier custody decree of the same court. The child's mother, Jane Ann Cermola, appeals, challenging the correctness of the trial court's order. The appellee contends that we do not have jurisdiction of this appeal because, so the argument goes, the appellant did not file her notice of appeal in compliance with T.R.A.P. 3(e) and 4(a). URL:http://www.tba.org/tba_files/TCA/CERMOLA.OPN.WP6 STEVE GILLIAM d/b/a STEVE'S AUTO TRIM AND UPHOLSTERY v. AUTO OWNERS MUTUAL INSURANCE COMPANY Court:TCA A. BENJAMIN STRAND, JR., WITH STRAND & GODDARD, OF DANDRIDGE, TENNESSEE, FOR APPELLANT LINDA J. MOWLES and ERIC S. NOWINSKI, WITH LEWIS, KING, KRIEG, WALDROP & CATRON, OF KNOXVILLE, TENNESSEE, FOR APPELLEE First Paragraph: Plaintiff has appealed from a decree sustaining Defendant's motion for summary judgment based on material misrepresentations in Plaintiff's application for insurance, which increased the risk of loss to Defendant. URL:http://www.tba.org/tba_files/TCA/GILLIAMS.OPN.WP6 JAMES HOLDEN and MARINA HOLDEN v. BOBBY L. FRAZIER, DORIS J. FRAZIER,D. D. ROBERTS, EDITH ROBERTS, MONTY F. SAMS, and REMAX REAL ESTATE ONE OF MORRISTOWN, INC. Court:TCA CLINTON R. ANDERSON, OF MORRISTOWN, TENNESSEE, FOR APPELLANTS BOBBY L. FRAZIER AND DORIS J. FRAZIER C. DWAINE EVANS, OF MORRISTOWN, TENNESSEE, FOR APPELLANTS D. D. ROBERTS AND EDITH ROBERTS VIRGINIA A. SCHWAMM, WITH TOWLE & SCHWAMM, OF KNOXVILLE, TENNESSEE, FOR APPELLEES First Paragraph: The pivotal issue on this appeal is, where the purchasers of a residence sue their grantors and the grantors to plaintiffs' grantors for damages based on a defective septic tank sewer system which did not conform to the restrictive covenants relating to a sub-surface sewage disposal system, may the trial court, in lieu of awarding or denying damages, sua sponte, order and decree as follow: URL:http://www.tba.org/tba_files/TCA/HOLDENJ.OPN.WP6 WILLIAM LEON MARCUS, v. SIDNEY W. GILREATH, Court:TCA Carl Winkles, Knoxville, For the Appellant. Richard L. Duncan, Knoxville, For the Appellee. First Paragraph: This non-jury action, which sought recovery of the balance of a fee allegedly owing to the plaintiff, a toxicologist, by the defendant, an attorney, was dismissed following presentation of the evidence. Our review is de novo on the record accompanied with the presumption that the judgment is correct unless the evidence otherwise preponderates. Tenn. R. App. P. 13(d). URL:http://www.tba.org/tba_files/TCA/MARCUS.OPN.WP6 BRENDA UNDERWOOD, v. MacMILLAN/McGRAW-HILL SCHOOL PUBLISHING COMPANY, and its general partners, McGRAW-HILL SCHOOL PUBLISHING, INC. and MacMILLAN SCHOOL PUBLISHING, INC., Court:TCA Steven F. Dobson and Stacie L. Caraway, Chattanooga, For the Appellant. Jeffrey S. Norwood and Karen M. Smith, Chattanooga, For the Appellee. First Paragraph: This action to recover a contractual bonus was decided adversely to the plaintiff on the narrow ground that she was not on the defendant's payroll on January 1, 1993, allegedly a condition precedent to her entitlement to the bonus. URL:http://www.tba.org/tba_files/TCA/UNDERWOD.OPN.WP6 STATE OF TENNESSEE, v. TIMOTHY GOSE, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Charles W. Burson A. Philip Lomonaco Attorney General & Reporter Attorney at Law Merrilyn Feirman Assistant Attorney General Randall E. Nichols District Attorney General Zane M. Scarlett Assistant District Attorney General First Paragraph: The State of Tennessee appeals as of right from a judgment of the trial court setting aside a conviction for vehicular homicide and granting Timothy Gose's post trial motion for judgment of acquittal. The state contends that "[t]he evidence adduced at trial was sufficient to find the defendant guilty of vehicular homicide." This Court finds that the evidence contained in the record is insufficient, as a matter of law, to support a finding by a rational trier of fact that Gose was guilty of vehicular homicide beyond a reasonable doubt. URL:http://www.tba.org/tba_files/TCCA/GOSE.OPN.WP6
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