Opinion Flash

March 25, 2002
Volume 8 — Number 054

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):
 
03 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
04 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


CONNIE JEAN GIVENS  v.  ED MULLIKIN, administrator ad litem of the
estate of LARRY McELWANEY, et al.

Court:TSC

Attorneys:

Nathan W. Kellum, Memphis, Tennessee, for the appellant, Ed Mullikin,
administrator ad litem of the estate of Larry McElwaney.

Leo Bearman, Jr., Robert M. Glover, and Launice P. Sills, Memphis,
Tennessee, for the appellant, Allstate Insurance Company.

William H. Fisher, III, Memphis, Tennessee, for the appellee, Connie
Jean Givens.                          

Judge: BARKER

First Paragraph:

The principal issue in this case is whether an insurance carrier and
an insured may be held vicariously liable for the alleged tortious
actions of an attorney hired to defend the insured.  The trial court
held that the plaintiff's complaint stated a claim of vicarious
liability against the defendant insured and his insurance carrier for
abuse of process, inducement to breach express and implied contracts
of confidentiality, inducement to breach a confidential relationship,
and invasion of privacy.  The Court of Appeals affirmed the trial
court's ruling with respect to the vicarious liability issue, though
it dismissed the claims for inducement to breach a confidential
relationship and invasion of privacy.  The defendants then appealed to
this Court, and we now hold that an insurer and an insured may be held
vicariously liable for the tortious acts or omissions of an attorney
hired to defend the insured, if the attorney's tortious actions were
directed, commanded, or knowingly authorized by the insurer or by the
insured.  We further hold that the complaint in this case states a
claim of vicarious liability against the insurer alone for abuse of
process.  The judgment of the Court of Appeals is affirmed in part and
reversed in part.

http://www.tba.org/tba_files/TSC/givensc.wpd


HEIRS OF NEIL G. ELLIS  v.  THE ESTATE OF VIRGIE MAE ELLIS

Court:TSC

Attorneys:

Laurie Y. Young, Murfreesboro, Tennessee, for the appellants, the
Heirs of Neil G. Ellis, consisting of William Oliver Ellis, James T.
Ellis, III, Linda Wright, Henry Louis Bunce, Marjorie B. Edwards,
Catherine B. Hall, Erma Doyle Davis, Vera Sue Haire, Empie L. Bunce,
Margaret A. Brown, James F. Bunce, Karen Proctor Hall, and William T.
Proctor.

William W. Burton, Murfreesboro, Tennessee, for the appellee, the
Estate of Virgie Mae Ellis.                          

Judge: BARKER

First Paragraph:

The issue in this case is whether property held in a tenancy by the
entirety is subject to the 120-hour survival rule contained in section
31-3-120 of the Tennessee Uniform Simultaneous Death Act.  Three days
after her husband's death, Mrs. Ellis died of unrelated natural
causes, and her will was admitted to probate.  The husband's heirs
sought to intervene in the probate proceeding, claiming that because
Mrs. Ellis did not survive her husband for 120 hours, section 31-3-120
deems both to have died "simultaneously."  Consequently, they argued,
Tennessee Code Annotated section 31-3- 104 authorized them to seek a
one-half interest in the entireties property.  The trial court denied
the motion to intervene, and the Court of Appeals affirmed.  On appeal
to this Court, we hold that section 31-3-120 does not require one
spouse to survive the other by 120 hours in order to obtain fee simple
title to property formerly held by the entirety.  We also hold that
the General Assembly, in enacting section 31-3-120, did not intend to
define the term "simultaneously" in section 31-3-104 as meaning
"within 120 hours."  Instead, we conclude that the legislature
intended that this term should continue to receive its ordinary
construction, meaning "at the same time."  The judgment of the Court
of Appeals is affirmed.

http://www.tba.org/tba_files/TSC/heirsofellis.wpd


TRAU-MED OF AMERICA, INC. d/b/a/ BELLEVUE CLINIC  v.  ALLSTATE
INSURANCE COMPANY, et al.

Court:TSC

Attorneys: 

R. Layne Holley, Memphis, Tennessee, and William H. Frye, Jackson,
Tennessee, for the appellants, Allstate Insurance Company, Vickie
Harris, Charles E. Ferrell, Leslie Johnson, and Ron Iden.

Ed M. Hurley, Memphis, Tennessee, for the appellee, Trau-Med of
America, Inc., d/b/a Bellevue Clinic.                         

Judge: BARKER

First Paragraph:

The plaintiff, a medical clinic, filed an action against the
defendants alleging, among other things, tortious interference with
business relationships and civil conspiracy.  The defendants filed a
motion to dismiss, which the trial court granted.  The Court of
Appeals reversed the trial court's dismissal of these claims, finding
that the facts alleged in the complaint were sufficient to state
claims upon which relief could be granted.  This case is now before us
to determine whether the trial court should have granted the
defendant's motion to dismiss.  We hold that the complaint in this
case alleges sufficient facts to state a cause of action for tortious
interference with business relationships.  However, we dismiss the
plaintiff's claim of civil conspiracy for failure to satisfy the
plurality requirement necessary to establish an actionable conspiracy
claim.  Consequently, we affirm in part and reverse in part the
judgment of the Court of Appeals and remand this case to the trial
court for further proceedings consistent with this opinion.

http://www.tba.org/tba_files/TSC/traumed.wpd


SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0325.wpd


SUSAN BRANNON COOPER v. KENT CLARK COOPER

Court:TCA

Attorneys: 

Christine Mahn Sell, Chattanooga, Tennessee, for the Appellant, Kent
Clark Cooper.

Rosemarie L. Bryan, Chattanooga, Tennessee, for the Appellee, Susan
Brannon Cooper.                         

Judge: GODDARD

First Paragraph:

This appeal from the Chancery Court of Hamilton County questions
whether the Trial Court erred in increasing Ms. Cooper's alimony
award.  Additionally, it questions whether the Trial Court erred in
awarding attorney's fees to Ms. Cooper and in refusing to dismiss her
Answer and Counter- Complaint.  We affirm the decision of the Trial
Court in part and reverse in part and remand.

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


STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. JENNIFER A.
GORRELL, et al.

Court:TCA

Attorneys:

J. Russell Pryor, Greeneville, Tennessee, for the
Appellant/Counter-Appellee, Jennifer Gorrell

Paul G. Summers, Attorney General and Reporter and Elizabeth C.
Driver, Assistant Attorney General, Nashville, Tennessee, for the
Appellee/Counter-Appellant,  State of Tennessee, Department of
Children's Services                          

Judge: GODDARD

First Paragraph:

The State of Tennessee, acting through the Department of Children's
Services, seeks the termination of parental rights as to A.L.L. and
C.H.G.  The Trial Judge declined to terminate the parental rights as
to A.L.L., and awarded permanent custody of her to the Department of
Children's Services.  The State appeals this determination.  He did
terminate the parental rights of both the mother and the father as to
C.H.G., which the mother appeals.  We affirm.

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


WILLIAM HARWELL PERRY v. RICKI C. CHILDS PERRY

WITH TWO CONCURRING OPINIONS

Court:TCA

Attorneys:

J. Thomas Caldwell, Ripley, TN, for Appellant

Julie D. Byrd, Tina Lum Perrusquia, Bartlett, TN, for Appellee                          

Judge: HIGHERS

First Paragraph:

The Appellant and the Appellee were divorced by final decree of
divorce entered by the Chancery Court of Tipton County.  The trial
court ordered the Appellant to pay the Appellee rehabilitative alimony
on a temporary basis for two years.  The trial court stated that the
parties would return to court prior to the expiration of the two year
period to determine whether rehabilitative alimony should continue. 
Prior to the expiration of the two year period, the Appellee filed a
petition to modify the final decree of divorce to continue alimony
payments and a petition for contempt.  The Appellant filed a petition
for an order closing rehabilitative alimony.  The trial court held a
hearing on the petitions.  Following the hearing, the trial court
ordered the Appellant to pay the Appellee rehabilitative alimony for
three additional years.  The trial court ordered the Appellant to pay
the Appellee's attorney's fees.

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

CONCURRING OPINION 1
http://www.tba.org/tba_files/TCA/perrywmhc_con.wpd

CONCURRING OPINION 2
http://www.tba.org/tba_files/TCA/perrywmhc_con2.wpd


JUDITH LYNN SILVEY v. DARREL C. SILVEY

Court:TCA

Attorneys:

John P. Konvalinka and Mathew D. Brownfield, Chattanooga, Tennessee,
for Appellant, Judith Lynn Silvey.

Roger E. Jenne, Cleveland, Tennessee, for Appellee, Darrel C. Silvey.                          

Judge: FRANKS

First Paragraph:

In this divorce action the Trial Court granted divorce ordered
rehabilitative alimony, child support and divided the marital
property.  Issues on appeal include the valuation, classification and
division of marital property and the award of alimony.  We affirm in
part, vacate in part and remand.

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


STACEY J. STANLEY v. DANIEL RING, et al.

Court:TCA

Attorneys:

David L. Hamblen, Union City, Tennessee, for the appellant, Stacey J.
Stanley.

Bruce Moss, Union City, Tennessee, for the appellees, Daniel Ring and
wife, Deon Ring, Jerry Bond and wife, Jackie Bond, Robert Rose and
Paul Seger and wife, Georgette Seger.                          

Judge: FARMER

First Paragraph:

This case concerns riparian rights to a privately owned lake in a
subdivision in Obion County.  The trial court found that the
boundaries of lots abutting the lake extend into the lake, and that
the owners of these lots have riparian rights to limited use of the
lake as reasonable under the circumstances.  We modify in part and
affirm in part.

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


SHARRON FAYE STINNETT v. DAVID F. FERGUSON

Court:TCA

Attorneys:

Charles H. Child, Knoxville, Tennessee, for Appellant.

Jerry G. Cunningham and Melanie E. Davis, Maryville, Tennessee, for
Appellee.

Judge: FRANKS

First Paragraph:

In this divorce action, the issue on appeal is whether the Trial Court
placed the correct value on the marital equity in wife's motel
property.  We affirm the value determined by the Trial Court.

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


STATE OF TENNESSEE v. GREGORY SCOTT ALLISON

Court:TCCA

Attorneys: 

Julie A. Rice, Knoxville, Tennessee (on appeal); Raymond M. Garner,
District Public Defender; and Shawn G. Graham, Assistant District
Public Defender, Maryville, Tennessee (at trial), for the appellant,
Gregory Scott Allison.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Michael L. Flynn, District Attorney
General; and Kirk E. Andrews, Assistant District Attorney General, for
the appellee, State of Tennessee.                         

Judge: TIPTON

First Paragraph:

The defendant, Gregory Scott Allison, appeals from the Blount County
Circuit Court's revoking his probation that was ordered for his
sentences for burglary and theft.  The defendant contends that
although the trial court may have been justified in finding that he
violated the terms of his probation, it erred in sentencing him to
confinement.  We affirm the judgment of the trial court.

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


MARIO LAMBERT v. JACK MORGAN, WARDEN

Court:TCCA

Attorneys:

Mario Lambert, Only, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; and Ron Davis, District Attorney General.                          

Judge: WELLES

First Paragraph:

The Defendant, Mario Lambert, appealed as of right from the trial
court's dismissal of his petition for writ of habeas corpus.  This
Court held that the trial court was without authority to sentence the
Defendant as a Range I standard offender with a thirty percent release
eligibility for the offense of second degree murder.  We therefore
concluded that, based on the record before us, the sentence imposed
appeared to be an illegal sentence.  We therefore reversed the
judgment of the trial court dismissing the petition and remanded the
case for further proceedings.  See Mario Lambert v. Jack Morgan,
Warden, No. M1999-02321-CCA-R3-PC, 2001 Tenn. Crim. App. LEXIS 599
(Nashville, Aug. 7, 2001).  On January 23, 2002, our supreme  court
remanded this case to us, directing us to reconsider our opinion in
light of State v. Burkhart, 566 S.W.2d 871 (Tenn. 1978), and further
directed us, on remand, to "clarify the action to be taken by the
Criminal Court pursuant to the opinion of the Court of Criminal
Appeals when the case is remanded to the trial court."  We again
reverse the judgment of the trial court summarily dismissing the
habeas corpus petition and remand this case to the trial court for
further proceedings.

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


COREY L. MALONE v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

Mike Anderson, Nashville, Tennessee, for the appellant, Corey L.
Malone.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; and Kymberly Haas, Assistant District Attorney
General, for the appellee, State of Tennessee.                           

Judge: RILEY

First Paragraph:

The petitioner originally pled guilty, pursuant to a negotiated plea
agreement, to second degree murder and especially aggravated robbery
for an effective sentence of twenty years.  The petitioner filed a
post-conviction relief petition, which was denied by the
post-conviction court.  In this appeal, the petitioner contends (1) he
received ineffective assistance of counsel, and (2) his guilty pleas
were unknowingly and involuntarily entered.  After review, we affirm.

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


PATRICK E. SIMPSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:  

Patrick E. Simpson, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Victor S. Johnson, III, District
Attorney General; and Jon P. Seaborg, Assistant District Attorney
General, for the appellee, State of Tennessee.                          

Judge: RILEY

First Paragraph:

The petitioner originally pled guilty, pursuant to a negotiated plea
agreement, to two counts of aggravated assault for agreed sentences of
three years on each count, to run concurrently with each other but
consecutively to a parole violation.  The petitioner over two years
later filed a "Petition for Review of Sentence" with the trial court
alleging the judgment form omitted mention of the agreed upon pretrial
jail credits.  The trial court dismissed the petition finding it was
without jurisdiction since the petitioner was "serving his sentence
with TDOC for his parole violation."  The petitioner challenges this
ruling in this appeal, and additionally alleges he is serving his
sentence in the Department of Correction, rather than at the Davidson
County Workhouse, in contravention of his written plea agreement.  We
dismiss the appeal.

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

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