Opinion Flash
January 7, 2002
Volume 8 — Number 004

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
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
08 New Opinion(s) from the Tennessee Court of Appeals
01 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
 

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


DONALD PICKLESIMER v. MCKEE FOODS CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:   

Robert D. Bradshaw, of Chattanooga, Tennessee, for appellant, Donald
Picklesimer.

J. Bartlett Quinn and Charles D. Lawson, of Chattanooga, Tennessee,
for appellee, McKee Foods Corporation.                       

Judge: THAYER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann.S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  The trial
court awarded the employee 72 percent permanent partial disability to
the body as a whole.  The employee appealed insisting his disability
was 100 percent.  Judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TSC_WCP/picklesimer.wpd

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0107.wpd

LAQUITA AILSWORTH v. AUTOZONE, INC., et al.

Court:TCA

Attorneys:

John Montague, James S. Powell, Carroll C. Johnson, III, Memphis, TN,
for Appellant

Sam L. Crain, Jr., Memphis, TN, for Appellee Autozone, Inc.

Robert A. Cox, James F. Horner, Memphis, TN, for Appellees S. Richard
Bauman and Bauman Realty Company, Inc.
 
Judge: HIGHERS

First Paragraph:

This appeal arises from the fall of the Appellant outside the Appellee
store.  The Appellant filed a complaint against the Appellees in the
Circuit Court of Shelby County alleging that her injuries were
proximately caused by the Appellees' negligence in allowing an icy
condition to exist on the walkway in front of the store.  The
Appellees filed motions for summary judgment.  The trial court granted
the Appellees' motions for summary judgment.

The Appellant appeals the grant of summary judgment in favor of the
Appellees by the Circuit Court of Shelby County.  For the reasons
stated herein, we reverse the trial court's decision.

http://www.tba.org/tba_files/TCA/ailsworthlaquita.wpd

WALTER D. CUNNINGHAM and DAVID CUNNINGHAM v. JOHN F. PATTERSON

Court:TCA

Attorneys:

Scott B. Peatross, Memphis, Tennessee, for the appellant, John F.
Patterson.

Clyde W. Keenan, Memphis, Tennessee, for the appellees, Walter D.
Cunningham and David L. Cunningham.                         

Judge: LILLARD

First Paragraph:

This is a tort case involving trespass, assault and battery.  The
plaintiffs, father and son, sued the defendant, the son's neighbor,
after an altercation between the father and the neighbor.  Following a
bench trial, the trial court found, by a preponderance of the
evidence, that the defendant committed trespass against the son, and
assault and battery against the father, and the trial court awarded
compensatory and punitive damages.  The defendant neighbor appeals. 
We affirmed in part, reverse in part and modify, finding that there is
not clear and convincing evidence to support an award of punitive
damages, and that the evidence preponderates in favor of a reduced
amount of compensatory damages.

http://www.tba.org/tba_files/TCA/cunninghamwd.wpd

DONNA HOOVER HARRIS v. RULON T. HARRIS and PAIGE PEMBERTON WILLIAMS v. F. FORD BEACH, JR.

Court:TCA

Attorneys:    

James M. Allen, Memphis, TN, for Appellant

G. Keith Rogers, Jr., Collierville, TN, for Intervenor/Appellee                      

Judge: HIGHERS

First Paragraph:

This appeal involves a realtor's commission for a failed sale of real
property that was  jointly owned by parties to a divorce.  Upon the
divorce of the property owners, the court ordered that their residence
be sold.  Having a listing agreement with a realtor in place, a
contract for the purchase of the property was signed.  After
difficulty consummating the sale, the realtor and the purchaser
intervened in the divorce and were granted specific performance of the
contract.  The court's order set a closing date and an alternative
divestiture closing date in case the parties again refused to
cooperate.  As contemplated by the court, the divorcing property
owners failed to attend the closing and a date for the divestiture
closing was set. A foreclosure was to occur, however, before the
divestiture closing.  One hour before the foreclosure, the purchaser
under the contract acquired the note and allowed the foreclosure to
proceed.  The purchaser then acquired the remaining interest in the
property at the foreclosure.  The chancery court ordered the purchaser
to pay to the realtor a commission on the amount paid for the note. 
The purchaser appealed, and for the following reasons, we reverse.

http://www.tba.org/tba_files/TCA/harrisdh.wpd

IN RE:  D.L.K., a Child Under 18 Years of Age

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. GLENDA ANN KINNIE

Court:TCA

Attorneys:   

Pamela Drewery-Rodgers, Selmer, Tennessee, for the appellant, Glenda
Ann Kinnie.

Paul G. Summers, Attorney General and Reporter, and Pamela A.
Hayden-Wood, Nashville, Tennessee, for the appellee, State of
Tennessee Department of Children's Services.

Judge: LILLARD

First Paragraph:

This is a termination of parental rights case.  The child was born
with crack cocaine in his system and was admitted into the neonatal
intensive care unit at birth.  His mother did not visit him, and has
no personal relationship with him.  The State filed a petition for
termination of the mother's parental rights based on abandonment and
the fact that the child had been removed from his mother's custody for
at least six months prior to the petition and the statutory
preconditions had been met.  The trial court granted the State's
petition, finding that clear and convincing evidence supported the
allegations, and that terminating the mother's parental rights was in
the best interest of the child.  We affirm.

http://www.tba.org/tba_files/TCA/inredlk.wpd

SUZANNE JONES, et al. v. METRO ELEVATOR COMPANY, et al.

Court:TCA

Attorneys:

Thomas K. McAlexander, Jackson, TN, for Appellant

R. Douglas Hanson, Memphis, TN, for Appellee, Metro Elevator Company

David J. Pflaum and Erik O. Thorngren, Nashville, TN, for Appellee,
Wayne Tomlinson & Associates                         

Judge: HIGHERS

First Paragraph:

This appeal involves claims for injuries sustained by the plaintiff
while riding in an elevator.  The plaintiff brought suit against
numerous parties including the company managing the building and the
company under contract to service the elevators in the building.  The
circuit court granted a motion for summary judgment as to the company
managing the building.  The case proceeded to trial, however, against
the company under contract to service the elevators.  After the
circuit court refused to instruct the jury on the doctrine of res ipsa
loquitur, the jury returned a verdict in favor of the elevator service
provider.  The plaintiff appeals the grant of summary judgment and the
refusal to instruct the jury on the doctrine of res ipsa loquitur and
for the following reasons, we affirm.

http://www.tba.org/tba_files/TCA/joness.wpd

TERRY LITTLEJOHN v. BOARD OF PUBLIC UTILITIES OF PARIS, TENNESSEE

Court:TCA

Attorneys:    

Edward Robertson, Clarksville, TN, for Appellant

Fred N. McLean, Paris, TN, for Appellee                      

Judge: HIGHERS

First Paragraph:

This appeal arises from the personal injuries sustained by the
Appellant as a result of an electrical shock he received while roofing
a house in Henry County, Tennessee.  The Appellant filed a complaint
against the Appellee under the Governmental Tort Liability Act in the
Circuit Court of Henry County.  Following a bench trial, the trial
court assessed thirty-five percent of the fault to the Appellant and
sixty-five percent of the fault to the Appellee.  The trial court
found that the total amount of damages sustained by the Appellant was
$25,000.00.  The trial court reduced the total amount of damages by
thirty-five percent which resulted in an award of damages to the
Appellant in the amount of $16,250.00.

The Appellant appeals the decision of the Circuit Court of Henry
County assessing  thirty- five percent of the fault to the Appellant
and awarding damages in the amount of $16,250.00.  For the reasons
stated herein, we affirm in part and reverse in part the trial court's
decision.

http://www.tba.org/tba_files/TCA/littlejohnt.wpd

ROSE CONSTRUCTION, INC. v. RAINTREE DEVELOPMENT COMPANY, LLC

Court:TCA

Attorneys:

Christopher M. Caputo, Michael I. Less, and Clifton M. Lipman,
Memphis, Tennessee, for the appellant, Rose Construction, Inc. 

Larry E. Parrish, Memphis, Tennessee, for the appellee, Raintree
Development, LLC.

Judge: LILLARD

First Paragraph:

This is an arbitration case.  The plaintiff construction company
agreed to construct the defendant developer's planned development
project.  When disputes arose out of the parties' performance, they
terminated the contract.  The parties then entered into arbitration. 
The arbitration panel found in favor of the plaintiff for $974,068.00
plus interest, including a $250,000 award for attorney's fees.  The
plaintiff filed an action in the chancery court, seeking confirmation
of the award.  The defendant asked the chancery court to vacate the
arbitration award.  The trial court vacated the entire award, finding
that the arbitration panel exceeded its authority in awarding
attorney's fees.  The plaintiff construction company appeals.  We
reverse, finding that the award of attorney's fees is authorized under
the parties' contract, and remand the case for confirmation of the
arbitration award in toto.

http://www.tba.org/tba_files/TCA/rose.wpd

EVA WOODS v. COUNTY OF DYER, et al.

Court:TCA

Attorneys: 

Charles M. Agee, Jr., Dyersburg, TN, for Appellant

J. Michael Gauldin, Dyersburg, TN, for Appellees                         

Judge: HIGHERS

First Paragraph:

This appeal arises from the Appellees' denial of an application for a
beer permit filed by the Appellant.  The Appellant filed a petition
for writ of certiorari against the Appellees in the Circuit Court of
Dyer County.  Following a hearing on the petition for writ of
certiorari, the trial court affirmed the decision of the Appellees and
dismissed the petition for writ of certiorari.  The Appellant appeals
the dismissal of the petition for writ of certiorari by the Circuit
Court of Dyer County.  For the reasons stated herein, we affirm the
trial court's decision.

http://www.tba.org/tba_files/TCA/woodseva.wpd

STATE OF TENNESSEE v. JERRY RAY DAVIDSON

Court:TCCA

Attorneys:

Brock Mehler, Nashville, Tennessee (appeal only); Michael J. Love
(trial and appeal); Collier W. Goodlett, Clarksville, Tennessee (trial
only), for appellant, Jerry Ray Davidson.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; Alice B. Lustre, Assistant Attorney General; Dan
Alsobrooks, District Attorney General, for appellee, State of
Tennessee. Judge: SMITH

First Paragraph:

The appellant, Jerry Ray Davidson, was found guilty by a jury of
premeditated first degree murder and aggravated kidnapping. 
Thereafter, the jury sentenced the appellant to death based upon the
finding of three aggravating circumstances: the appellant had
previously been convicted of one or more violent felonies; the murders
were knowingly committed while the appellant was engaged in committing
a felony, i.e., aggravated kidnapping; and the appellant knowingly
mutilated the body of the victim after death.  The appellant received
a consecutive twenty year sentence for the kidnapping conviction.  On
appeal, the appellant raises the following issues:

1.  Whether the trial erred when it denied the appellant's motions
to change venue, strike the venire and grant additional peremptory
challenges;

2.  Whether the evidence is sufficient to sustain the convictions;

3.  Whether a witness for the prosecution should have been allowed
to offer opinion testimony;

4.  Whether the trial court correctly instructed the jury about the
unanimity of its verdict;

5.  Whether the jury's verdict is proper;

6.  Whether the prosecutor has unlimited discretion in seeking the
death penalty;

7.  Whether the death penalty is imposed in a discriminatory manner;
and

8.  Whether Tennessee courts employ an adequate proportionality
review.

Having thoroughly considered all of these issues and having fully
reviewed the appellate record in this case, we affirm the convictions
and the sentence of death imposed for first degree murder.

http://www.tba.org/tba_files/TCCA/davidsonjr.wpd

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