Opinion Flash

January 10, 2002
Volume 8 — Number 007

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
04 New Opinion(s) from the Tennessee Court of Appeals
03 New Opinion(s) from the Tennessee Court of Criminal Appeals
07 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


DENNIS ARMONEIT v. ELLIOTT CRANE SERVICE, INC., et al.

Court:TCA

Attorneys:

Daniel J. Ripper, Chattanooga, Tennessee, for the appellant, Elliott
Crane Service, Inc.

Sean Antone Hunt, Nashville, Tennessee, for the intervenors, Fox Ridge
Homes, Inc.

J. Mitchell Grissim, Jr. and John P. Sheahan, Jr., Nashville,
Tennessee, for the appellee, Dennis Armoneit.

Sarah Hardison, Nashville, Tennessee, for the intervenors, Continental
Casualty Company.

Judge: KOCH

First Paragraph:

This appeal arises from an accident involving a crane rented by the
plaintiff's employer to aid in a construction project.  The plaintiff
was helping to attach trusses being lifted by the crane to the roof of
a house when the crane's allegedly negligent operation caused him to
fall from the roof.  The plaintiff filed suit against the owner of the
crane in the Circuit Court for Davidson County, alleging that the
owner was vicariously liable for the crane operator's actions.  The
owner of the crane, relying on its standard rental agreement form,
sought indemnity from the plaintiff's employer.  On the plaintiff's
employer's motion for partial summary judgment, the trial court held
that the owner of the crane was vicariously liable for the crane
operator's alleged negligence and that the indemnity agreement was
void as contrary to public policy.  The owner of the crane has
appealed.  We hold that the trial court erred by granting partial
summary judgment on the employer's respondeat superior claim but that
the trial court properly determined that the indemnity provision in
the crane owner's rental agreement is void.

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

LINDA MARIE CHAMBERLAIN FRYE v. RONNIE CHARLES FRYE

Court:TCA

Attorneys:

Donald K. Vowell, Knoxville, Tennessee, for the Appellant Ronnie
Charles Frye.

Herbert S. Moncier and Ursula Bailey, Knoxville, Tennessee for
Appellee Herbert S. Moncier.                         

Judge: SWINEY

First Paragraph:

This suit was filed in July of 1999 to enforce two judgments in favor
of attorney Herbert S. Moncier ("Plaintiff") against Ronnie Charles
Frye ("Defendant").  The Trial Court granted judgment in favor of
Plaintiff in the amount of $32,242.29.  In the first appeal to this
Court, we concluded the action was not filed timely, vacated the
judgment in favor of Plaintiff, and dismissed the lawsuit.  No appeal
was taken from that decision.  The present appeal involves the Trial
Court's holding of Defendant in criminal contempt for willfully
disobeying post-judgment orders of the Trial Court to respond to
discovery and appear for deposition.  These orders were entered and
the alleged contemptuous conduct occurred before the underlying
judgment was reversed by this Court.  We affirm.

http://www.tba.org/tba_files/TCA/fryelm2.wpd

STATE OF TENNESSEE ex rel. COMMISSIONER OF TRANSPORTATION v. MEDICINE
BIRD BLACK BEAR WHITE EAGLE, et al.

Court:TCA

Attorneys:  

M.S. and William B. Cain, J., joined.

Paul G. Summers, Attorney General and Reporter, and Michael Moore,
Solicitor General, for the appellant, State of Tennessee.

Virginia Lee Story, Franklin, Tennessee and John E. Herbison,
Nashville, Tennessee, for the Tennessee Commission of Indian Affairs
and Toye Heape, Executive Director of the Tennessee Commission of
Indian Affairs.

Joe W. McCaleb, Hendersonville, Tennessee, for the appellees, Medicine
Bird Black Bear White Eagle, Albert Bender, Leela Vaughn, Rogers
Clinch, Grady Jones, Michael Simms, Norman Totten, Sheila Totten, Edna
Faye, Dale Mitchell, Robin Lockwood, and Anita Stevens.

Joseph H. Johnston, Nashville, Tennessee, for the appellees, Gilbert
Cupp, Dan Kirby, and Marion Dunn.

Judge: KOCH

First Paragraph:

This appeal involves the efforts of the Tennessee Department of
Transportation to widen the intersection of Hillsboro Road and Old
Hickory Boulevard in Williamson County.  After the discovery of two
ancient graves near the intersection, the Department filed suit in the
Chancery Court for Williamson County seeking permission to relocate
the human remains found on the property and to discontinue the use of
the property as a burial ground.  Over the Department's objection, the
trial court permitted the Tennessee Commission of Indian Affairs, its
executive director, and fifteen individual Native Americans to
intervene to oppose the relocation of the graves.  After disqualifying
the Attorney General and Reporter from representing the Commission,
the trial court appointed two private lawyers to represent the
Commission.  We granted the Department's application for an
extraordinary appeal to determine (1) whether the Commission, its
executive director, and the individual Native Americans meet the
qualifications in Tenn. Code Ann. S 46-4-102 (2000) to participate in
these proceedings as "interested persons," (2) whether the Attorney
General and Reporter should have been disqualified from representing
the Commission and its executive director, and, if so, (3) whether the
trial court has authority to appoint private counsel to represent the
Commission and its executive director.  We have determined that
neither the Commission, nor its executive director, nor the fifteen
individual Native Americans meet the statutory requirements to
participate as "interested persons" in these proceedings and that
denying "interested person" status to the individual Native Americans
does not interfere with their free exercise rights or rights of
conscience guaranteed by U. S. Const. amend. I and Tenn. Const. art.
I, S 3.  We have also determined that the trial court erred by
disqualifying the Attorney General and Reporter from representing the
Commission and its executive director and by appointing private
attorneys to represent the Commission.  Accordingly, we reverse and
vacate the trial court's orders and remand the case for further
proceedings consistent with this opinion.

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

ROBERT VAUGHN ODOM v. MARY JO ODOM

Court:TCA

Attorneys:  

Jeffrey L. Levy, Nashville, Tennessee, for the appellant, Mary Jo
Odom.

Karla C. Hewitt, Nashville, Tennessee, for the appellee, Robert Vaughn
Odom.                        

Judge: KOCH

First Paragraph:

This appeal involves a bitter custody dispute over three children
between the ages of nine and fourteen.  During the divorce proceeding
in the Chancery Court for Dickson County, the parties agreed that the
mother would have custody of the children and also agreed on
visitation arrangements that accommodated the mother's planned move to
another state.  Several months after the entry of the divorce decree,
the father petitioned to change custody and to hold the mother in
contempt for interfering with his relationship with the children. 
During the ensuing three years, the parties traded allegations of
sexual and physical abuse of the children and other misconduct. 
Following a bench trial in December 1998, the trial court found that
there had been a material change in the children's circumstances and
granted the father custody of the children.  On this appeal, the
mother asserts that she was denied due process by the trial court's
refusal to require the parties and their children to undergo a
psychological examination and that the trial court unlawfully
delegated its judicial authority to a psychologist who had been
counseling the children.  We have determined that the mother received
an essentially fair hearing on this custody dispute and, therefore,
affirm the trial court.

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

STATE OF TENNESSEE v. ALFONZO E. ANDERSON

Court:TCCA

Attorneys:

Alfonzo Anderson, Pro Se.

Paul G. Summers, Attorney General & Reporter; Mark E. Davidson,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Paul Goodman, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Alfonzo E. Anderson appeals the Shelby County Criminal Court's denial
of his petition for the writ of habeas corpus.  He claims that the
indictment charging him with first degree felony murder is
insufficient to allege the offense because it does not allege a
factual basis for the underlying felony, attempted aggravated robbery.
 Because we agree with the lower court that the indictment
sufficiently alleges the crime of first degree felony murder, we
affirm.

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

GREGORY W. CLEMENTS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:  

Gregory W. Clements, Henning, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; John W. Pierotti, District Attorney
General; and Paul Goodman, Assistant District Attorney General, for
the appellee, State of Tennessee.                        

Judge: MCGEE OGLE

First Paragraph:

The petitioner, Gregory W. Clements, pled guilty in the Shelby County
Criminal Court to one count of second degree murder and was sentenced
as a Range II offender to thirty-five years incarceration in the
Tennessee Department of Correction.  The petitioner filed a petition
for post-conviction relief, alleging that his sentence is illegal. 
The post-conviction court dismissed the petition, due to the
expiration of the applicable statute of limitations.  The petitioner
now appeals.  Upon review of the record and the parties' briefs, we
affirm the judgment of the post-conviction court.

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

STATE OF TENNESSEE v. PERDIDO COOK

Court:TCCA

Attorneys:

AC Wharton, Jr., Public Defender; Garland Erguden, Assistant Public
Defender, Memphis, Tennessee, for the Appellant, Perdido Cook.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; J. Ross Dyer, Assistant Attorney General; William
L. Gibbons, District Attorney General; and Rosemary Andrews, Assistant
District Attorney General, for the Appellee, State of Tennessee.                         

Judge: HAYES

First Paragraph:

The Appellant, Perdido Cook, was convicted by a Shelby County jury of
especially aggravated robbery, aggravated robbery, and attempted
aggravated robbery.  The trial court sentenced Cook to serve 25 years
for the especially aggravated robbery conviction, 8 years for the
aggravated robbery conviction, and 3 years for the attempted
aggravated robbery conviction.  All sentences were to be served
concurrently.  On appeal, Cook raises the following issues for our
review: (1) Whether the evidence is sufficient to support the
convictions; and (2) whether the imposition of the maximum sentence of
25 years for especially aggravated robbery is justified in view of the
trial court's misapplication of certain enhancement factors.  After
review, we find no reversible error and affirm the judgment of the
trial court.

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

Elected Judge Receiving Honorarium

Date: January 2, 2002

Opinion Number: 02-004                          

http://www.tba.org/tba_files/AG/OP4.pdf

Fundraising by Multicandidate Political Campaign Committee with
Legislator as Treasurer

Date: January 3, 2002

Opinion Number: 02-005                         

http://www.tba.org/tba_files/AG/OP5.pdf

Use of BEP Funding to Pay for Teachers' Health Insurance Increases in
Premium

Date: January 4, 2002

Opinion Number:  02-006                        

http://www.tba.org/tba_files/AG/OP6.pdf

Board of Veterinary Medical Examiners

Date: January 4, 2002

Opinion Number:  02-007                         

http://www.tba.org/tba_files/AG/OP7.pdf

Constitutional Impediment to Individual Holding County and City Office

Date: January 9, 2002

Opinion Number:  02-008                         

http://www.tba.org/tba_files/AG/OP8.pdf

Qualifying to Run for Office of Sheriff

Date: January 9, 2002

Opinion Number: 02-009                          

http://www.tba.org/tba_files/AG/OP9.pdf

State Senate - Redistricting Plan - Constitutionality

Date: January 10, 2002

Opinion Number:  02-010                        

http://www.tba.org/tba_files/AG/OP10.pdf

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