November 15, 1999
Volume 5 -- Number 156

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

This Issue (IN THIS ORDER):
 
06 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
02 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 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

						
						
FRIZZELL CONSTRUCTION COMPANY, INC.
VS.
GATLINBURG, L.L.C.

Court:TSC

Attorneys: 

For the Appellant:                  For the Appellee:
C. Paul Harrison                    Bernard E. Bernstein
Knoxville, Tennessee                Knoxville, Tennessee    

Donald A. Harper                    Celeste H. Herbert
Greenville, South Carolina          Knoxville, Tennessee
                         

Judge: BARKER

First Paragraph:

In this appeal, we address two primary issues: (1) whether the
contract in this case providing for construction of a hotel in
Tennessee "involves" interstate commerce so as to implicate the
Federal Arbitration Act, and (2) whether the chancery court erred in
withholding contract formation issues from arbitration.  We hold that
the contract in this case plainly involves interstate commerce and
that the parties did not intend to arbitrate a claim of fraudulent
inducement to enter a contract. Therefore, in accordance with the
Federal Arbitration Act, the chancery court properly retained
jurisdiction over the claim of fraudulent inducement to enter a
contract.  The judgment of the Court of Appeals is affirmed.

http://www.tba.org/tba_files/TSC/FRIZZELL.wpd



STATE OF TENNESSEE VS. JON DOUGLAS HALL Court:TSC Attorneys: For the Appellant: For the Appellee: Jesse H. Ford, III Paul G. Summers Clayton F. Mayo Attorney General and Reporter Jackson, Tennessee (At Trial) Michael C. Moore Solicitor General C. Mark Donahoe Jackson, Tennessee Alice B. Lustre (On Appeal) Assistant Attorney General Nashville, Tennessee James G. Woodall District Attorney General Alfred Lynn Earls Asst. District Attorney General Jackson, Tennessee Judge: BARKER First Paragraph: The defendant, Jon Douglas Hall, was indicted for first degree premeditated murder in the strangulation and drowning death of his wife, Billie Jo Hall. The State filed notice of its intent to seek the death penalty. Pursuant to the defendant's motion for a change of venue, the case was transferred from Henderson County to Madison County for a trial by jury. Following presentation of evidence in the guilt phase, the jury found the defendant guilty of first degree murder as charged. After a sentencing hearing, the jury concluded that the evidence established one aggravating circumstance: that "[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death." Tenn. Code Ann. S 39-13-204(i)(5) (1991). Finding that this aggravating circumstance outweighed any mitigating circumstances beyond a reasonable doubt, the jury sentenced the defendant to death. On appeal, the Court of Criminal Appeals affirmed both the conviction and sentence. Thereafter, pursuant to Tenn. Code Ann. S 39-13-206(a)(1) (1997), the case was docketed in this Court for automatic review. http://www.tba.org/tba_files/TSC/halljd.wpd
WAYNE MILLER AND ELIZABETH ANN MILLER VS. DAVID WILLBANKS, M.D., HAMBLEN PEDIATRIC ASSOCIATES, INC., AND MORRISTOWN-HAMBLEN HOSPITAL Court:TSC Attorneys: For the Appellants For the Appellees Judy Pinkston McCarthy Douglas L. Dutton Knoxville, Tennessee Knoxville, Tennessee Dennis M. McCarthy Amy V. Hollars Knoxville, Tennessee Knoxville, Tennessee R. Franklin Norton Knoxville, Tennessee Gary G. Spangler Knoxville, Tennessee Judge: BARKER First Paragraph: We granted this appeal to decide whether the Court of Appeals erred in holding that expert medical or scientific proof of a serious mental injury is required to support the plaintiffs' claims for intentional infliction of emotional distress. The trial court granted the defendants' motion for summary judgment because the plaintiffs failed to have available expert proof to corroborate their claims of having sustained serious mental injuries. The Court of Appeals affirmed the trial court's dismissal of the case. After careful consideration of the record in this case, the applicable law, and the arguments of the parties, we conclude that expert medical or scientific proof of a serious mental injury is generally not required to support a claim for intentional infliction of emotional distress. Accordingly, for the reasons herein, we reverse the Court of Appeals and remand this case to the trial court for further proceedings. http://www.tba.org/tba_files/TSC/Millerw.wpd
NAPOLEON MOMON VS. STATE OF TENNESSE WITH CONCURRING/DISSENTING OPINION Court:TSC Attorneys: For the Appellant: For the Appellee: Stephen M. Goldstein Paul G. Summers Chattanooga, Tennessee Attorney General & Reporter Michael E. Moore Solicitor General Daryl J. Brand Associate Solicitor General Nashville, Tennessee William H. Cox, III District Attorney General 11th Judicial District Rodney C. Strong Assistant District Attorney Chattanooga, Tennessee Judge: DROWOTA First Paragraph: The appellant, Napoleon Momon, requested permission to appeal from a decision of the Court of Criminal Appeals holding that he was not denied effective assistance of counsel when his trial counsel failed to allow him to testify at his own trial. After careful consideration, we find it unnecessary to reach the issue of whether the facts of this case give rise to a claim of ineffective assistance of counsel. Instead we hold that a criminal defendant's right to testify is a fundamental constitutional right guaranteed both by Article I, section 9 of the Tennessee Constitution and by the Fifth and Fourteenth Amendments to the United States Constitution. As such, the right must be personally waived by the criminal defendant. In all cases tried or retried hereafter, trial courts should adhere to the procedural guidelines set forth herein to ensure that the defendant personally waives his or her right to testify. The appellant in this case was denied his fundamental right to testify when trial counsel unilaterally waived the right. Although the harmless error doctrine may be applied to a violation of the fundamental right to testify, the record on appeal before this Court has not been sufficiently developed to permit a determination of whether or not the error in this case is harmless beyond a reasonable doubt. Accordingly, we remand this case to the trial court for a hearing at which the State will bear the burden of demonstrating that the error was harmless beyond a reasonable doubt. If, however, the State fails to meet its burden, the trial court must vacate the appellant's conviction. http://www.tba.org/tba_files/TSC/momon_opn.wpd CONCURRING/DISSENTING OPINION: http://www.tba.org/tba_files/TSC/MOMONM_con.wpd
STATE OF TENNESSEE VS. ROBERT A. PAYNE Court:TSC Attorneys: FOR APPELLANT: FOR APPELLEE: JEFFREY A. DEVASHER MICHAEL E. MOORE Assistant Public Defender Solicitor General Nashville ELLEN H. POLLACK J. MICHAEL ENGLE Assistant Attorney General Assistant Public Defender Nashville ALAN CALHOUN Assistant Public Defender Nashville Judge: HOLDER First Paragraph: We granted this appeal to determine whether the offense of reckless endangerment can be committed against the public at large. We conclude that reckless endangerment can be committed against the public at large but, to prove the charge, the State must show that a representative of that group was in an area in which a reasonable probability of danger existed. We affirm one conviction for reckless endangerment and hold that the evidence was insufficient to support the remaining charge of reckless endangerment. Accordingly, we vacate that conviction and modify the defendant's sentence to 46 years. http://www.tba.org/tba_files/TSC/Paynera.wpd
STATE OF TENNESSEE VS. LAWRENCE RALPH, JR. Court:TSC Attorneys: FOR APPELLANT: FOR APPELLEE: Paul G. Summers Aubrey L. Harper Attorney General & Reporter McMinnville, Tennessee Michael E. Moore Solicitor General Daryl J. Brand Associate Solicitor General Nashville, Tennessee William M. Locke District Attorney General 31st Judicial District McMinnville, Tennessee Thomas J. Miner Assistant District Attorney McMinnville, Tennessee Judge: DROWOTA First Paragraph: The sole issue in this appeal is whether the due process analysis delineated in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991) bars the defendant's separate convictions for burglary and theft of the same automobile. The Court of Criminal Appeals, in a split decision, applied the due process analysis of Anthony and vacated the defendant's burglary conviction on the ground that it was essentially incidental to the theft of the car. One judge dissented and argued that the analysis adopted in Anthony does not apply in the context of this case. For the reasons that follow, we agree with the dissenting judge and hold that the analysis adopted in Anthony does not apply to bar the defendant's separate convictions of burglary and theft. Accordingly, the judgment of the Court of Criminal Appeals vacating the defendant's conviction of burglary is reversed, and the judgment of the trial court is reinstated. http://www.tba.org/tba_files/TSC/ralphlrj.wpd
SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/CERTLIST_1115.wpd
IN RE: AMENDMENT TO RULE 28, RULES OF THE TENNESSEE SUPREME COURT Court:TSC - Rules Judge: DROWOTA First Paragraph: Rule 28 of the Rules of the Supreme Court of Tennessee is hereby amended by deleting the text of Section 2(G) in its entirety and replacing it with the following new Section 2(G) http://www.tba.org/tba_files/TSC_Rules/rule28_ord.wpd

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