August 13, 2001 Volume 7 — Number 147 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):   00 New Opinion(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 07 New Opinion(s) from the Tennessee Court of Appeals 02 New Opinion(s) from the Tennessee Court of Criminal Appeals 01 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. Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink MACK BROWN v. DWIGHT W. OGLE, ET AL. Court:TCA Attorneys: Carl W. Eshbaugh of Knoxville for the Appellant Wayne A. Ritchie of Knoxville for the Appellees Judge: GODDARD First Paragraph: This is a suit wherein the Plaintiff seeks damages by reason of the Defendants conspiring to deprive him of his rightful share in assets of a corporation, Toni Motel, Inc. The suit was filed on September 16, 1983, as a share holder's derivative suit and was ultimately dismissed by the Trial Court under the doctrine of laches on the part of the Plaintiff. The order of dismissal was entered on January 14, 1999, nunc pro tunc as of December 14, 1998. The Plaintiff appeals contending laches does not apply, particularly since the suit was timely filed. We find the Trial Court's action was appropriate and affirm the judgment entered. http://www.tba.org/tba_files/TCA/brownmac.wpd WILLIAM H. DAVIS v. DAIRA F. DAVIS Court:TCA Attorneys: Jerry W. Laughlin, Greeneville, Tennessee, for the Appellant, William H. Davis. K. Karl Spalvins, Knoxville, Tennessee, for the Appellee, Daira F. Davis. Judge: GODDARD First Paragraph: This appeal from the Cocke County Circuit Court questions whether the Trial Court erred in dividing the marital estate. Mr. Davis appeals the Trial Court's valuation of his closely held corporation, the payment of some debt by Mr. Davis, and the award of permanent periodic alimony to Ms. Davis. We affirm the decision of the Trial Court as modified and remand for such further proceedings, if any, consistent with this opinion. We adjudge costs of the appeal against the Appellant, William H. Davis and his surety. http://www.tba.org/tba_files/TCA/daviswill.wpd MARTIN HERRICK, et ux. v. MIKE FORD CUSTOM BUILDERS, LLC Court:TCA Attorneys: R. Francene Kavin, Brentwood, Tennessee, for the appellant, Mike Ford Custom Builders, LLC. P. Edward Schell, Franklin, Tennessee, for the appellees, Martin Herrick and Lydia Herrick. Judge: FARMER First Paragraph: The Herricks entered into a sales agreement with Mike Ford for the construction of a home. The sales agreement provided that the deposit paid by the Herricks became non-refundable upon the presentation of a loan commitment letter. The Herricks presented Mike Ford with a loan commitment letter from Southeastern Mortgage Company which was conditioned upon proof of employment. Mr. Herrick was terminated from his employment, and, as a result, Southeastern denied the Herricks' loan application. The Herricks demanded Mike Ford return their deposit. Mike Ford refused, contending that the deposit became non-refundable at the time the Southeastern loan commitment letter was presented. Both parties filed motions for summary judgment. The trial court granted summary judgment in favor of the Herricks. We reverse and remand. http://www.tba.org/tba_files/TCA/herrickmartin.wpd OLALEE HERRON McCLARAN v. DON M. McCLARAN Court:TCA Attorneys: August C. Winter, Brentwood, Tennessee, for the Appellant, Don M. McClaran Terry A. Fann, Murfreesboro, Tennessee, for the Appellee, Olalee Herron McClaran Judge: GODDARD First Paragraph: Plaintiff Olalee Herron McClaran sues her son, Defendant Don M. McClaran, seeking compensatory and punitive damages for his mishandling of funds coming into his hands as her attorney in fact in connection with the sale of certain real estate. The jury awarded both compensatory and punitive damages, resulting in this appeal wherein Mr. McClaran complains of the exclusion of evidence, the Trial Court's directing a verdict as to two claims in his counter-complaint, the seating of a six- person, rather than a 12-person jury, and the excessiveness of the punitive damage award. We affirm. http://www.tba.org/tba_files/TCA/mcclaranola.wpd ROGER RITCHIE, et al. v. TOMMY PITNER, et al. Court:TCA Attorneys: Arthur F. Knight, III, and Samuel W. Brown, Knoxville, Tennessee for the Appellant Tommy Pitner. John K. Harber, Knoxville, Tennessee for the Appellees Marian Enterprises, Inc., and Dr. Joseph Tabery. Judge: SWINEY First Paragraph: This lawsuit arises out of a Letter of Intent entered into between two of the various parties to this action. The Trial Court entered judgment on the issue of which party was entitled to possession of the property, but did not rule on any of the remaining claims. Because the judgment appealed from is not a final judgment for purposes of Rule 3 of the Tenn. R. App. P., we dismiss the appeal. http://www.tba.org/tba_files/TCA/ritchier.wpd RICHARD D. THOMPSON v. HERBERT G. ADCOX Court:TCA Attorneys: Barry L. Abbott, Chattanooga, Tennessee, for the appellant, Herbert G. Adcox. Robert D. Bradshaw, Chattanooga, Tennessee, for the appellee, Richard D. Thompson. Judge: SUSANO First Paragraph: This is an action to collect on a check. The plaintiff's suit was brought pursuant to T.C.A.S 47-29- 101 (Supp. 2000), a statute dealing with dishonored checks and drafts. William Aubrey Thompson ("the elder Thompson") and his adult son, Richard D. Thompson ("the plaintiff") (collectively referred to as "the Thompsons"), agreed to loan Darlene Lane-Detman $60,000. The Thompsons agreed to make the loan but only upon the condition that the defendant, Herbert G. Adcox, would guarantee repayment by delivering to the plaintiff a personal check in the amount of $60,000, post- dated to the due date of Lane-Detman's obligation. Adcox agreed and subsequently delivered a post- dated check for $60,000 payable to the plaintiff. After Lane-Detman failed to repay the loan when due, Adcox stopped payment on his post-dated check. The plaintiff responded by suing Adcox. Following a bench trial, the court below awarded the plaintiff a judgment against Adcox for $90,378.97. Adcox appeals, arguing that the trial court erred (1) in holding that Adcox's "post-dated check" is a "check" as that term is used in T.C.A. S 47-29-101 and in "borrowing" the concept of an inference of fraudulent intent from the criminal worthless check statute; (2) in denying his motion to dismiss at the close of the plaintiff's proof; (3) in making an award of more than $500 over the face amount of the check in violation of T.C.A. S 47-29-101(d); (4) in excluding Adcox's testimony that Lane-Detman told him to stop payment on his check because the deal was off; and (5) in finding that the evidence preponderates that Adcox acted with fraudulent intent when he stopped payment on his check. We affirm. http://www.tba.org/tba_files/TCA/thompsonrd.wpd RHONDA LYN VAUGHAN v. JOSEPH CLYDE VAUGHAN Court:TCA Attorneys: Judy A. Oxford, Franklin, Tennessee, for the appellant, Joseph Clyde Vaughan. Vincent Zuccaro, Brentwood, Tennessee, for the appellee, Rhonda Lyn Vaughan. Judge: LILLARD First Paragraph: This is a divorce case in which alimony is in dispute. The trial court awarded alimony in futuro to the wife in the amount of $750 per month until her death or remarriage, and ordered the husband to purchase a $100,000 life insurance policy for the benefit of the wife. The trial court also ordered the husband to pay $1,500 of the wife's attorney's fees. The husband appeals, arguing that alimony in futuro was inappropriate because the wife is self-sufficient with her income as a nanny. In the alternative, the husband argues that rehabilitative alimony is more appropriate. We affirm the judgment of the trial court in all respects. http://www.tba.org/tba_files/TCA/vaughanrl.wpd STATE OF TENNESSEE v. THOMAS DEE HUSKEY Court:TCCA Attorneys: Herbert S. Moncier and Gregory P. Isaacs, Knoxville, Tennessee, for the appellant, Thomas Dee Huskey. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Erik W. Daab, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Jennifer Welch, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Thomas Dee Huskey, brings this interlocutory appeal, contending that the double jeopardy protections of the United States and Tennessee Constitutions bar a retrial following the jury's deadlock on four counts of first degree murder. He argues that the trial court failed to declare a mistrial and manifest necessity did not compel one, that prosecutorial misconduct and judicial overreaching precipitated the jury's inability to reach a verdict, and that the trial court erroneously failed to accept the jury's special verdicts. We conclude that double jeopardy does not bar a retrial. http://www.tba.org/tba_files/TCCA/huskeytd524.wpd STATE OF TENNESSEE v. JERRY RAY SIMPSON Court:TCCA Attorneys: Danny C. Garland, II, Knoxville, Tennessee (on appeal); Robert Cohen, Maryville, Tennessee (at trial), for the appellant, Jerry Ray Simpson. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Michael L. Flynn, District Attorney General; and John Bobo, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: A Blount County jury convicted the Defendant, Jerry Ray Simpson of driving under the influence and driving on a revoked license. In this appeal as of right, the Defendant raises the single issue of whether the trial court erred by failing to strike an alternate juror for cause due to his employment as a police officer in an adjacent jurisdiction. Finding no error, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/simpsonjr.wpd Salary of Overton County General Sessions Judge Date: August 7, 2001 Opinion Number: 1-122 http://www.tba.org/tba_files/AG/OP122.pdf 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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