Opinion FlashJanuary 10, 2002Volume 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.
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Howard H. Vogel 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 PLEASE FORWARD THIS E-MAIL! 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