April 19, 2000 Volume 6 -- Number 058 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. This Issue (IN THIS ORDER):   01 New Opinion(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 06 New Opinion(s) from the Tennessee Court of Appeals 00 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 New Opinion(s) from the Tennessee Attorney General (PDF format) 00 New Judicial Ethics Opinion(s) 00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Lucian T. Pera Editor-in-Chief, TBALink STATE OF TENNESSEE, et al. v. BROWN & WILLIAMSON TOBACCO CORPORATION, et al. v. GREGORY BENNETT PERRY and STEVE LLOYD CHAMPION, et al. Court:TSC Attorneys: J. D. Lee and David C. Lee, Knoxville, Tennessee, for intervenors-appellants, Steven Lloyd Champion, et al. Gordon Ball, Knoxville, Tennessee, for intervenors-appellants, Gregory Bennett Perry, et al. Judge: DROWOTA First Paragraph: The issue in this appeal is whether two groups of individuals should be allowed to intervene in a suit filed by the State of Tennessee against several tobacco product manufacturers. The State's suit against the tobacco defendants sought money damages, declaratory relief, and injunctive relief in connection with the marketing and sale of tobacco products in Tennessee. The trial court (Chancellor Irvin Kilcrease, Jr.) approved a settlement between the State and the tobacco defendants and dismissed the State's complaint. The trial court also rejected attempts to intervene in the State's suit by two groups of individuals, the first seeking damages from tobacco companies for increased medical insurance premiums, and the second consisting of tobacco users seeking damages from tobacco companies and their lawyers seeking attorney's fees. The trial court (Chancellor Carol L. McCoy) dismissed a declaratory judgment action filed by one of the groups of proposed intervenors. Both groups of the proposed intervenors appealed, and this Court granted an expedited appeal under Tenn. Code Ann. S 16-3-201(d). For the reasons explained hereafter, the trial courts are affirmed. http://www.tba.org/tba_files/TSC/BrownW.wpd IN RE: AMENDMENT TO RULE 1, RULES OF THE SUPREME COURT Court:TSC - Rules Judge: ANDERSON First Paragraph: Rule 1, Rules of the Supreme Court, is hereby amended by deleting the last sentence of the rule and by substituting in its place the following: The Tennessee Rules of Appellate Procedure shall be cited as T.R.A.P. or as Tenn. R. App. P. IT IS SO ORDERED. http://www.tba.org/tba_files/TSC_Rules/Rule1_amd.wpd GLENDA JENNINGS, et vir KEITH JENNINGS VS. KENNETH CASE, M.D.; and CASE MEDICAL CLINIC, P.C.; P.C.; W. DAVID STEWART, M.D.; and ASSOCIATED SURGEONS Corrected Opinion Repost from Monday, April 17, 2000 With Concurring Opinion Court:TCA Attorneys: ROBERT J. SHOCKEY 2400 Crestmoor Road, Suite 307 Nashville, Tennessee 37215 JAMES E. MOFFITT 1013 Vista Circle Franklin, Tennessee 37067 ATTORNEYS FOR PLAINTIFFS/APPELLANTS ROSE P. CANTRELL PHILLIP L. NORTH GEORGE A. DEAN North, Pursell & Ramos Parker, Lawrence, Cantrell & Dean Nations Bank Plaza 200 Fourth Avenue North Suite 1850 5th Floor, Noel Place Nashville, Tennessee 37219-1783 Nashville, Tennessee 37219 ATTORNEYS FOR DEFENDANTS/APPELLEES Judge: CAIN First Paragraph: This is a medical malpractice action in which the trial court granted summary judgment to both defendant physicians. The plaintiff has appealed arguing that there existed genuine issues of material fact. We agree with the plaintiff and reverse the decision of the trial court. http://www.tba.org/tba_files/TCA/Jengsgle.wpd Concurring Opinion: http://www.tba.org/tba_files/TCA/Jennings_con.WP6 ANN MARIE RUTHERFORD KECK, v. RICHARD LEN KECK Court:TCA Attorneys: Judith Fain, Johnson City, Tennessee for the Appellee. Thomas C. Jessee, Johnson City, Tennessee for the Appellant. Judge: Franks First Paragraph: The parties to this divorce action had an antenuptial agreement which the Trial Court held did not preclude consideration of the increase in value of the marital residence as a marital asset. Husband has appealed. http://www.tba.org/tba_files/TCA/kecka.wpd MAX E. PASS, SR., as Administrator of the Estate of Max E. Pass, Jr., deceased, and SHIRLEY WILLIAMS, as Administratix of the Estate of Martha N. Pass, deceased, v. SHELBY AVIATION, INC. Court:TCA Attorneys: R. Alan Pritchard, Memphis, Tennessee, for the appellant, Shelby Aviation, Inc. Gary K. Smith and Bryant C. Witt, Memphis, Tennessee, for the appellees, Max E. Pass, Sr. and Shirley Williams. Judge: LILLARD First Paragraph: This is an interlocutory appeal in a breach of warranty case. The plaintiffs' decedents were killed in an airplane crash. The estates sued the aviation company that performed the annual inspection on the airplane, on a theory of breach of warranty. The trial court denied the defendant's motion to dismiss, holding that the transaction was subject to the warranty provisions of Article 2 of the Uniform Commercial Code. Permission for interlocutory appeal was granted on this issue. We reverse, utilizing the predominant purpose test to determine if a mixed transaction of goods and services is subject to the Uniform Commercial Code, and holding that the transaction in this case was predominantly the provision of a service, not subject to the warranty provisions of the UCC. http://www.tba.org/tba_files/TCA/passme.wpd JOSEPH R. PATTON, JR., et ux. v. MICHAEL KRUSZEWSKI, et al. Court:TCA Attorneys: Robert B. Gaia, Memphis, For Appellant, Michael Kruszewski Roger A. Stone, Memphis, For Appellant, Sandra Goodman (Kruszewski) Manuel P. Scarmoutsos, Memphis, For Appellees Judge: CRAWFORD First Paragraph: This is a misrepresentation case in a real estate transaction. Plaintiffs purchased a home from defendant, Michael Kruszewski, and defendant, Sandra Goodman, who acted as the real estate agent for Kruszewski. Plaintiffs filed a suit for rescission and money damages. After a non-jury trial, the trial court found that both defendants were in violation of T.C.A. S S 66-5-201 - 66-5-210, by failing to disclose foundation problems in the house and awarded damages to plaintiffs. Defendants have appealed. http://www.tba.org/tba_files/TCA/pattonjoe.wpd JOY DAWKINS ROY and SAM D. DAWKINS, et ux VS. W. T. DIAMOND, JR. CORRECTED OPINION Court:TCA Attorneys: LLOYD R. TATUM TATUM & WEINMAN Henderson, Tennessee Attorney for Appellant J. HOUSTON GORDON Covington, Tennessee Attorney for Appellees Judge: HIGHERS First Paragraph: In this legal malpractice case, W.T. Diamond Jr. appeals from a jury verdict entered against him in the Circuit Court of Madison County awarding plaintiffs Joy Dawkins Roy and Sam D. Dawkins $68,800 in compensatory damages and $25,000 in punitive damages. http://www.tba.org/tba_files/TCA/royjoy.wpd PAMELA JUNE (HUTCHINSON) SWEAT v. JAMES RETERS SWEAT, III Court:TCA Attorneys: Middlebrooks & Gray, Jackson, For Appellant Terry Abernathy, Selmer, For Appellee Judge: CRAWFORD First Paragraph: This is a child custody case. Pamela June Hutchinson Sweat (Wife) filed for divorce against James Reters Sweat, III (Husband) in the General Sessions Court of McNairy County. After a non-jury trial, the court awarded joint custody of the parties two minor sons but made no determination of child support. Wife has appealed. http://www.tba.org/tba_files/TCA/sweatpam.wpd PLEASE FORWARD THIS E-MAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! See the intrsuctions at the beginning of this edition of Opinion Flash. JOIN TBALink! 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