Opinion FlashJuly 12, 2002
Volume 8 Number 119
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
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Howard H. Vogel
RONALD M. GUY v. MUTUAL OF OMAHA INSURANCE COMPANY Court:TSC Attorneys: Herbert E. Gerson and Thomas J. Walsh, Jr., Memphis, Tennessee, for the appellant, Mutual of Omaha Insurance Company. Donald A. Donati and William B. Ryan, Memphis, Tennessee, for the appellee, Ronald M. Guy. Douglas S. Johnston, Jr., Nashville, Tennessee, and R. Sadler Bailey, Memphis, Tennessee, for the Amicus Curiae, Tennessee Trial Lawyers Association. Judge: BARKER First Paragraph: The principal issue in this case is whether the Tennessee "Whistleblower" Act, Tenn. Code Ann. S 50-1-304, preempts the common law tort of retaliatory discharge when an at-will employee is discharged for reporting illegal or unethical activity. The defendant has appealed a denial of its motion for summary judgment, arguing that section 50-1-304 governs all claims by employees who assert that they have been discharged for whistleblowing activity and, therefore, that the plaintiff must prove that the sole reason for his discharge was his reporting of another agent's illegal conduct. On appeal to this Court, we hold (1) that the statute does not preempt the common law tort, and thus, under the common law, the plaintiff need only demonstrate that his whistleblowing activity was a substantial factor motivating his discharge; and (2) that a genuine issue of material fact exists as to whether the plaintiff's whistleblowing activity was a substantial factor in his discharge. Consequently, we affirm the judgment of the Court of Appeals denying summary judgment in this case. http://www.tba.org/tba_files/TSC/guyronaldm.wpd
STATE OF TENNESSEE v. AARON JAMES Court:TSC Attorneys: Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Gordon W. Smith, Associate Solicitor General, for the appellant, State of Tennessee. Jeffrey A. DeVasher, Nashville, Tennessee, for the appellee, Aaron James. Judge: BARKER First Paragraph: The defendant, Aaron James, was charged with aggravated robbery, especially aggravated kidnapping, and attempted felony escape. Under the felony escape statute, Tenn. Code Ann. S 39- 16-605, the State sought to prove, as an element of the offense, that the defendant was being held for a felony at the time of his escape. The defendant offered to stipulate that he had been convicted, and was being held as a felon in lieu of having his specific prior offenses presented to the jury. The State refused to stipulate, and at trial, the deputy warden of the prison testified to each of the defendant's prior felony convictions to prove the defendant's status as a convicted felon. The defendant was subsequently convicted on all charges. He appealed his aggravated robbery and especially aggravated kidnapping convictions, arguing that his offer to stipulate rendered evidence of his prior convictions irrelevant and unfairly prejudicial. The Court of Criminal Appeals reversed the defendant's judgments of conviction, holding that the trial court erred by allowing the State to introduce evidence of the defendant's prior felonies to prove the "prior-conviction" element of the offense of felony escape. On appeal by the State, we hold (1) that the defendant's prior felonies constitute relevant evidence establishing the prior-conviction element of the offense of felony escape; but (2) that when the sole purpose of introducing the defendant's prior convictions is to prove the "prior-conviction" element of the charged offense, and when the defendant offers to stipulate to this element, the probative value of this evidence is, as a matter of law, outweighed by the risk of unfair prejudice under Tennessee Rule of Evidence 404(b). Consequently, because we find that the error in permitting the State to introduce the names of the defendant's prior felonies was not harmless, we reverse his convictions for aggravated robbery and especially aggravated kidnapping, and we remand the case for a new trial. The judgment of the Court of Criminal Appeals is affirmed. http://www.tba.org/tba_files/TSC/jamesaaron.wpd
STATE OF TENNESSEE v. JOHN EDWARD JOHNSON, JR. Court:TSC Attorneys: Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, for the appellant, State of Tennessee. Lance E. Webb, Union City, Tennessee, and Ronald D. Krelstein, Germantown, Tennessee, for the appellee, John Edward Johnson, Jr. Judge: ANDERSON First Paragraph: We granted review to address the following certified question that was reserved by the defendant following his guilty plea to unlawful possession of a weapon pursuant to Tenn. Code Ann. S 39-17-1307(b)(1)(A): "After an individual has had his full rights of citizenship restored pursuant to Tenn. Code Ann. S 40-29-101, et seq., following a conviction of aggravated assault with a deadly weapon, can he be convicted of a violation of Tenn. Code Ann. S 39-17-1307(b)(1)(A), or is he allowed to possess a handgun?" A majority of the Court of Criminal Appeals concluded that the defendant could lawfully possess a handgun in his residence because his citizenship rights had been restored pursuant to Tenn. Code Ann. S 40-29-101, et seq. We granted the State's application for permission to appeal to address this issue of first impression. After reviewing the record and applicable authority, we hold that the legislature intended that a person who has been convicted of a felony involving the use or attempted use of force, violence, or a deadly weapon cannot possess a handgun, even where his or her citizenship rights have been restored. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and this case is remanded to the trial court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/johnsonjohnedward.wpd
ROBERT L. POWELL, JR. v. BLALOCK PLUMBING AND ELECTRIC AND HVAC, INC., et al. Court:TSC Attorneys: David Brett Burrow and Gordon C. Aulgur, Nashville, Tennessee, and Delicia R. Bryant, Knoxville, Tennessee, for the appellants, Blalock Plumbing Electric & HVAC, Inc. and Federated Insurance Company. Clinton W. Swafford, John Robert Colvin, and Michael D. "Mickey" Hall, Winchester, Tennessee, for the appellee, Robert C. Powell. Judge: HOLDER First Paragraph: The sole issue in this workers' compensation appeal is whether Tenn. Code Ann. S 50-6-241(a)(1) applies to limit the claimant's award of permanent partial disability to two and one-half times the medical impairment rating of 10% to the body as a whole. The trial court determined that the claimant had not made a meaningful return to work and awarded the claimant four times the medical impairment rating, or 40% to the body as a whole. The Special Workers' Compensation Appeals Panel agreed with the trial court's ruling. We granted full court review of this case. After careful consideration, we affirm the trial court's judgment. http://www.tba.org/tba_files/TSC/powellr_opn.wpd
ROBERT L. POWELL, JR. v. BLALOCK PLUMBING AND ELECTRIC AND HVAC, INC., et al. Court:TSC BIRCH CONCURRING http://www.tba.org/tba_files/TSC/powellr_con.wpd
ROBERT L. POWELL, JR. v. BLALOCK PLUMBING AND ELECTRIC AND HVAC, INC., et al. Court:TSC BARKER DISSENTING http://www.tba.org/tba_files/TSC/powellr_dis.wpd
ALFRED AKIN, et al. v. KYLAN THOMPSON, et al. Court:TCA Attorneys: John B. Carlson and Anna B. Williams, Nashville, Tennessee, for the appellants, Alfred Akin and wife, Peggy Akin Michael H. Johnson and K. Melissa Bradford, Nashville, Tennessee, for the appellees, Kylan Thompson and Pamela Williams Judge: JONES First Paragraph: The plaintiff Alfred Akin was rear-ended by a vehicle driven by the defendant Kylan Thompson, who was uninsured. The Allstate Insurance policy on the Akin vehicle provided uninsured motorist coverage with limits of $100,000 per person and $300,000 per occurrence. Though in his personal vehicle, Mr. Akin was in the course and scope of his employment with the Metropolitan Nashville Water Works when injured. Metro government does not have a workers' compensation program, but has a benefit program for on-the-job injuries, under which it paid more than $100,000 for medical bills and disability benefits. The trial court held that Allstate's limits were reduced by amounts paid "under any workers' compensation law, disability law, or similar law . . . ." and also found that the loss of consortium claim of Mrs. Akin was derivative in nature and subject to the same $100,000 "each person" limit and reduction. We affirm the trial court's grant of summary judgment in favor of Allstate. http://www.tba.org/tba_files/TCA/akinalfred.wpd
JACK COLBOCH v. QUALITY FORD, INC., et al. Court:TCA Attorneys: Mark A. Cowan, Morristown, Tennessee, for the Appellant, Quality Ford, Inc. Jana D. Terry, Morristown, Tennessee, for the Appellee, Jack Colboch. Judge: GODDARD First Paragraph: finding Quality Ford, Inc., an automobile dealership, liable for damages caused to Jack Colboch's automobile by an independent body shop pursuant to a manufacturer's warranty. We affirm the decision of the Trial Court. http://www.tba.org/tba_files/TCA/colbochjack.wpd
RICKEY STEPHAN COTTEN v. TENNESSEE BOARD OF PAROLES Court:TCA Attorneys: Rickey S. Cotten, Lowell, Florida, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Quisha A. Light, Assistant Attorney General, for the appellee, Tennessee Board of Probation and Paroles. Judge: COTTRELL First Paragraph: Petitioner was arrested in Florida for grand theft auto while on parole under a sentence in Tennessee. After beginning his sentence on the Florida conviction in a Florida prison, the Petitioner filed a "request for leave to waive revocation hearing, admission to violation of parole and request to have parole hearing in absentia and affidavit" with the Board of Paroles of Tennessee. The Board did not respond, so Petitioner filed a writ of mandamus with the Circuit Court for Davidson County to compel the Board to render a decision regarding his parole revocation. The trial court denied the writ and dismissed the petition because mandamus was not the appropriate remedy and the Petitioner was not in custody of the State of Tennessee for the purposes of parole revocation. We agree and affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/cottenr.wpd
WILLA BELL HUSKEY v. JERRY MARTIN Court:TCA Attorneys: Steven B. Ward, Madisonville, for the appellant, Jerry Martin. Clifford E. Wilson, Madisonville, for the appellee, Willa Bell Huskey. Judge: SUSANO First Paragraph: This is a property line dispute. The defendant Jerry Martin appeals the trial court's finding that the parties' shared boundary line is as alleged in the original complaint. Martin argues that the evidence preponderates against the trial court's factual findings regarding the location of the boundary line. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCA/huskeywb.wpd
IN RE: THE ESTATE OF LONZO H. KELLEY Court:TCA Attorneys: Rodger N. Bowman and Lisa Kesting Best, Clarksville, Tennessee, for the Appellant The Estate of Lonzo H. Kelley. Richard L. Colbert, J. Frank Rudy, Jr., and W. Gregory Miller, Nashville, Tennessee, for the Appellee Heritage Bank. Judge: SWINEY First Paragraph: Lonzo Kelley operated a grocery store and borrowed a total of $250,000 from Heritage Bank ("Defendant") to operate the store. After Mr. Kelley died and there was no person or entity willing to assume control of the store, Defendant assumed operation of the store with the stated intent of protecting the assets, some of which were perishable. Defendant also believed the store would be more valuable at the time of foreclosure if it continued to remain open up until the time of sale. Defendant purchased new inventory and continued to operate the store until foreclosure took place. After foreclosure, and after deducting all expenses, etc., approximately $3,874.88 remained, which Defendant kept on deposit. Several years later, The Estate of Lonzo H. Kelley ("Plaintiff") filed suit making numerous challenges to Defendant's accounting practices, the manner in which Defendant operated the store, as well as its legal right to assume control of the store. Both parties filed motions for summary judgment. The Trial Court granted judgment to Plaintiff in the amount of $9,132.09, but determined Defendant was within its rights to assume control of the store and had not engaged in any wrongful acts while operating the store. Plaintiff appeals. We affirm. http://www.tba.org/tba_files/TCA/kelleyl.wpd
MARY EDITH KELLEY, et al. v. MAHLON JOHNS Court:TCA Attorneys: Billy C. Jack and Claudia S. Jack, Columbia, Tennessee, for the appellant Mahlon Johns. David L. Allen, Lawrenceburg, Tennessee, and Glenn L. Cox, Columbia, Tennessee, for the appellees, Mary Edith Kelley, Linda Orton, Evelyn Dolley, Nina Severson, Billie Johns, and Frankie Bostick. Judge: KOCH First Paragraph: This appeal involves an intra-family dispute over the validity of an 88-year-old decedent's will leaving his farm to one of his nine children. After the will was admitted to probate in the Maury County Probate Court, six of the decedent's children filed suit in the Circuit Court for Maury County asserting that their father lacked testamentary capacity when he executed the will and that the will had been procured by undue influence by the child who received the farm. A jury determined that a confidential relationship existed between the decedent and his son when the disputed will was executed and that the will was procured by undue influence. Accordingly, the trial court entered an order invalidating the will and setting aside the pending probate proceeding. On this appeal, the child who received the farm from his father insists that the evidence does not support the jury's findings that he had a confidential relationship with his father and that he exerted undue influence over his father with regard to the substance of the will. We have determined that the record contains material evidence to support the jury's verdict and, therefore, affirm the judgment. http://www.tba.org/tba_files/TCA/kelleyme.wpd
EMILY LEWIS v. LIFE CARE CENTERS OF AMERICA, INC. Court:TCA Attorneys: Jes Beard, Chattanooga, Tennessee, for the Appellant, Emily Lewis Robert W. Sauser and Alison T. Shaw, Chattanooga, Tennessee, for the Appellee, Life Care Centers of America, Inc. Judge: GODDARD First Paragraph: Emily Lewis, a student enrolled in a Certified Nursing Assistant's training program operated and supervised by Nursetrainers, Inc., sues Life Care Centers of America, Inc. The suit seeks damages for injuries resulting to Ms. Lewis, who was taking training to become a Certified Nursing Assistant. As a result of Life Care's negligence, the original complaint alleged several other causes of action, all of which have been abandoned on appeal. We affirm. http://www.tba.org/tba_files/TCA/lewisemily.wpd
ROBERT F. MARENGO AND FRANCINE R. MARENGO V. TERRY BOWEN (Original opinion filed 12/10/01 vacated and replaced with opinion filed 7/12/02.) Court:TCA Attorneys: Jeffrey L. Levy, Nashville, Tennessee, and Michael Fox, Nashville, Tennessee, for the appellants, Robert and Francine Marengo. Sharon Potter, Crossville, Tennessee, for the appellee, Terry Bowen. Judge: ASH First Paragraph: This is an appeal from the judgment of the Chancellor regarding the judicial dissolution of a continuing partnership. The trial court determined the valuation of the withdrawing partner's interest in the company, and his obligation to the partnership, should be accounted for when there is an actual distribution of funds. The trial court also concluded it was proper to add an additional $20,000 as a going concern adjustment to the valuation of the partnership, the calculation of certain salary adjustments were proper, a marketability and/or minority discount does not apply to the partnership, and an adjustment for a portion of the continuing partnership's legal and professional expenses was granted. After reading the record and hearing oral arguments, this Court affirms the trial court's determination offsetting the withdrawing partner's debt to the partnership when there is an actual distribution of funds and reverses the trial court's addition of $20,000 as a going concern value to the valuation of the partnership. We also affirm the trial court's salary adjustments, refusal to apply a minority and/or marketability discount, and adjustment for a portion of the partnership's legal and professional expenses. The judgment of the trial court is affirmed in part, reversed in part, and remanded for recalculation of the value of the withdrawing partner's interest as consistent with this order. Costs of this appeal shall be split between the appellant and the appellee. http://www.tba.org/tba_files/TCA/marengoro1.wpd
SCOTT D. MICHAEL v. ELLIS P. JAKES Court:TCA Attorneys: Randall W. Burton, Brentwood, Tennessee, for the appellant, Scott D. Michael. Cecil D. Branstetter, Carrol D. Kilgore, Nashville, Tennessee, for the appellee, Ellis P. Jakes. Judge: COTTRELL First Paragraph: This appeal involves two neighbors, Mr. Michael and Mr. Jakes, who share a boundary line and now dispute who owns land that is within the calls of Mr. Jakes's deed but has been used by Mr. Michael, in part for a portion of the driveway to his house. Mr. Michael lived on his lot for eleven (11) years prior to the filing of this suit and believed for some time after he purchased his lot that his driveway and a strip of land adjacent to it were within the calls of his deed. Mr. Jakes had a survey of the land performed, which showed that a portion of the driveway and the strip adjacent to it were owned by Mr. Jakes and not Mr. Michael. Mr. Jakes erected a fence along the driveway. Mr. Michael then filed suit claiming that he owned the disputed property under the doctrine of adverse possession or, in the alternative, owned the right to use the property by prescriptive easement. Mr. Michael also claimed an interest in the land pursuant to Tenn. Code Ann. S 28-2-103, the statute of limitations provision, which bars ejectment of an adverse possessor after seven (7) years of continued, open, and notorious use and possession. Mr. Michael later amended his complaint to allege forcible entry and detainer by Mr. Jakes. The trial court granted summary judgment for Mr. Jakes and stated in its final order that Mr. Michael had no interest in the property at issue. Mr. Michael now appeals that ruling. We reverse the grant of summary judgment in part. http://www.tba.org/tba_files/TCA/michaels.wpd
CHARLES MONTAGUE v. CHIEF RON STREET, et al. Court:TCA Attorneys: Charles Montague, Mountain City, Tennessee, Appellant, Pro Se John Rambo, Johnson City, Tennessee, for the Appellees, Chief of Police Ron Street, City of Johnson City, Washington County, TN Judge: GODDARD First Paragraph: This is a suit by Charles Montague, an inmate of the Penal System of this State, who was convicted of first degree murder and is presently serving a life sentence. The Defendants are Ron Street, Chief of Police of the City of Johnson City and Washington County. http://www.tba.org/tba_files/TCA/montaguecharles1.wpd
STATE OF TENNESSEE v. JOHN EARL TURNER, ALIAS Court:TCCA Attorneys: Mark Stephens, District Public Defender, and Aubrey L. Davis, Assistant Public Defender, Knoxville, Tennessee, for the appellant, John Earl Turner, Alias. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Robert L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, John Earl Turner, appeals as of right from the judgment of the trial court, which found him to be in violation of the terms of the probation he was serving for two separate, non- related convictions. After a hearing, the trial judge ordered the Defendant incarcerated for the balance of the sentences, which were being served consecutively to each other. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/turnerje.wpd
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