Opinion FlashOctober 8, 2002Volume 8 — Number 177 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. This Issue (IN THIS ORDER):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel TENNESSEE SMALL SCHOOL SYSTEMS, et al. v. NED RAY McWHERTER, et al. Court:TSC Attorneys: Lewis R. Donelson, Christopher G. Boling, Jonathan J. Cole, Angie C. Davis and Marianne Bell Matthews, Memphis, Tennessee, for the plaintiffs-appellants, Tennessee Small School Systems, et al. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Kate Eyler, Deputy Attorney General; and Kimberly J. Dean, Deputy Attorney General, Nashville, Tennessee, for the defendants-appellees, Ned Ray McWherter, et al. Karl F. Dean and James L. Charles, Nashville, Tennessee, for the intervenors-appellees, Metropolitan Nashville-Davidson County Public School System. Mary Neil Southerland, Chattanooga, Tennessee, for the intervenors-appellees, Chattanooga- Hamilton County Public School System. Jack Mitchell, Clarksville, Tennessee, for the intervenors-appellees, Clarksville-Montgomery County Public School System. Jerry D. Kizer, Jackson, Tennessee, for the intervenors-appellees, Jackson-Madison County Public School System. Michael Moyers, Knoxville, Tennessee, for the intervenors-appellees, Knox County Public School System. Ernest G. Kelly, Memphis, Tennessee, for the intervenors-appellees, Memphis City Public School System. Thomas A. Varlan, Knoxville, Tennessee, for the intervenors-appellees, Sevier County Public School System. Thomas R. Russell, Memphis, Tennessee, for the intervenors-appellees, Shelby County Public School System. E. Patrick Hull, Kingsport, Tennessee, for the intervenors-appellees, Sullivan County Public School System. Judge: ANDERSON First Paragraph: This is the third appeal to this Court of the plaintiffs' suit challenging the constitutionality of the manner in which the State funds public education. In the first appeal, we held that the State was required by the Tennessee Constitution to maintain and support a system of public schools that affords substantially equal educational opportunities to all students, and we found that the State's school funding scheme unconstitutionally denied equal educational opportunities to all students. Tennessee Small School Sys. v. McWherter, 851 S.W.2d 139 (Tenn. 1993) ("Small Schools I"). In the second appeal, we conditionally upheld a new funding plan allocating funds to school systems according to a formula based on the cost of forty-three components necessary for a basic education, known as the Basic Education Program ("BEP"), Tenn. Code Ann. SS 49-3-351 to -360. Tennessee Small School Sys. v. McWherter, 894 S.W.2d 734 (Tenn. 1995) ("Small Schools II"). We found, however, that the omission of a requirement for equalizing teachers' salaries was a significant defect in the Basic Education Program ("BEP"), which put the entire plan at risk both functionally and legally, and we concluded that "the plan must include equalization of teachers' salaries according to the BEP formula" in order for the plan to be constitutional. Id. at 738. In this third appeal, the question is whether the State's current method of funding salaries for teachers - the salary equity plan found in Tennessee Code Annotated S 49-3-366 - equalizes teachers' salaries "according to the BEP formula" or whether it fails to do so and violates equal protection by denying students substantially equal educational opportunities. The trial court dismissed the case after finding that the State had met its constitutional obligation to equalize teachers' salaries under Small Schools II. The plaintiffs then filed a motion asking this Court to assume jurisdiction of the appeal, see Tenn. Code Ann. S 16-3-201 (Supp. 2001), asserting that the State failed to comply with this Court's directive in Small Schools II to equalize teachers' salaries according to the BEP formula for funding public education. We granted the motion. After careful consideration of the record and applicable authorities, we find that the salary equity plan embodied in Tennessee Code Annotated S 49-3-366 does not equalize teachers' salaries according to the BEP formula and contains no mechanism for cost determination or annual cost review of teachers' salaries, unlike the BEP conditionally approved in Small Schools II. We further find that no rational basis exists for structuring a basic education program consisting entirely of cost- driven components while omitting the cost of hiring teachers, the most important component of any education plan and a major part of every education budget. Therefore, the lack of teacher salary equalization in accordance with the BEP formula continues to be a significant constitutional defect in the current funding scheme. Accordingly, we hold that the salary equity plan fails to comply with the State's constitutional obligation to formulate and maintain a system of public education that affords a substantially equal educational opportunity to all students. The trial court's judgment dismissing the case is reversed and the case is remanded. http://www.tba.org/tba_files/TSC/smallsch.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_1007.wpd A T & T CORP. v. RUTH JOHNSON, COMMISSIONER OF REVENUE, STATE OF TENNESSEE Court:TCA Attorneys: Gregory G. Fletcher, Memphis, Tennessee, for appellant, AT&T Corp. Paul G. Summers, Attorney General & Reporter; Charles L. Lewis, Deputy Attorney General; Daryl J. Brand, Associate Solicitor General, for the appellee, State of Tennessee Judge: CANTRELL First Paragraph: This case involves (1) the issue of the liability of AT&T for sales and use taxes assessed by the Commissioner for the years 1990 through 1994, and (2) the issue of whether the Chancery Court had subject matter jurisdiction to adjudicate a claim for refund of taxes where the taxpayer failed to file a formal claim for each of the years, 1993 excepted, "under oath and supported by proper proof." AT&T sold telephone central office equipment and provided engineering services to BellSouth and insisted that these sales and services were industrial machinery and therefore exempt from sales and use taxes. http://www.tba.org/tba_files/TCA/att.wpd JOHNNY JESS DAVIS, et al. v. ESTATE OF JOHNNIE REX FLYNN, et al. Court:TCA Attorneys: Lewis S. Howard, Jr. and Delicia R. Bryant, Knoxville, Tennessee, for the appellants, Johnny Jess Davis and Linda Diane Davis. L. Caesar Stair, III and Margo J. Maxwell, Knoxville, Tennessee, for the appellees, Estate of Johnnie Rex Flynn by Charles I. Poole, executor, and Barbara Flynn. Judge: SUSANO First Paragraph: Johnny Jess Davis and his wife, Linda Diane Davis, sued Johnnie Rex Flynn and his wife, Barbara Flynn, for breach of a written option agreement containing a right of first refusal as to real property in Sevier County. The defendants' answer denies the allegations of the complaint; significantly, it fails to raise any affirmative defenses. Following a bench trial, the court below entered judgment for the plaintiffs in the amount of $851,000. The defendants filed two post-judgment motions; one to amend the pleadings to conform to the proof and another for a new trial or, in the alternative, to alter or amend the judgment. The trial court denied the motion to amend the pleadings, but granted the defendants a new trial. Following a new trial before a different judge, the court below again found for the plaintiffs. This time it awarded them a judgment in the amount of $381,000. The plaintiffs appeal, and both parties raise issues pertaining to both trials. We find the trial court abused its discretion in awarding the defendants a new trial. Accordingly, we vacate the second judgment and reinstate the original judgment for the plaintiffs. http://www.tba.org/tba_files/TCA/davisjj2.wpd THOMAS DYER v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Judge: CANTRELL OPINION DENYING PETITION FOR REHEARING http://www.tba.org/tba_files/TCA/dyertrehear.wpd CECELIA G. HUTCHESON v. ANDREW W. HUTCHESON Court:TCA Attorneys: Andrew W. Hutcheson, appellant, Demorest, Georgia, Pro Se. Phillip Mark Walker, Goodlettsville, Tennessee, for appellee, Cecelia G. Hutcheson. Judge: CANTRELL First Paragraph: Before these parties were married, Husband earned $60,000.00 per year as an independent insurance agent. Wife earned $50,000.00 yearly as a registered nurse. After their marriage in 1986, Husband never earned more than $10,000.00 yearly. Wife became disabled in 1997 and thereafter received social security benefits. She was awarded alimony of $150.00 weekly upon a finding that Husband was reasonably capable of earning an income from which he could pay this amount. He disagrees. We affirm. http://www.tba.org/tba_files/TCA/hutchesonc.wpd PATRICK L. MCCOLLUM v. DAN HUFFSTUTTER Court:TCA Attorneys: Michael D. Noel, Nashville, For Appellant, Dan Huffstutter Stephen C. Knight, Nashville, For Appellee, Patrick L. McCollum Judge: CRAWFORD First Paragraph: This is an appeal from a Judgment on a jury verdict for Plaintiff. Plaintiff sued Defendant on grounds of trespass, abuse of process, and outrageous conduct arising from Defendant's attempt to serve a writ of possession at Plaintiff's place of business. A jury found for Plaintiff on all grounds. Defendant appeals, alleging seven grounds for reversal: (1) The Trial Court erred in not dismissing the complaint on the grounds of an executed Settlement Agreement and Full Release of All Claims; (2) The Trial Court erred in failing to grant a new trial on the grounds of newly discovered evidence; (3) The Trial Court erred in not granting Defendant's Motion for Summary Judgment, and in failing to grant the Defendant's Motion for Directed Verdict; (4) The jury verdict should be set aside and the complaint dismissed on the grounds of an oral agreement not to file civil proceedings; (5) The Trial Court erred in failing to give the special instructions requested by the Defendant; (6) The Trial Court erred in not granting a new trial on the grounds of improper conduct by counsel for the Plaintiff; (7) The verdict and remittitur were excessive and given under the influence of passion and prejudice. We affirm. http://www.tba.org/tba_files/TCA/mccullomp.wpd DIANA MORRIS v. STATE OF TENNESSEE Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, Michael W. Catalano, and Mark Alexis Hudson, for the appellant, State of Tennessee. Bill Hodde, Madison, Tennessee, for the appellee, Diana Morris. Judge: KOCH First Paragraph: This appeal involves a dispute between the State of Tennessee and a former employee of the Department of Correction arising out of a work-related injury. After the Department discharged her for failing to return to work, the employee filed a retaliatory discharge claim with the Tennessee Claims Commission asserting that she had actually been fired because she had filed a workers' compensation claim. The Tennessee Court of Appeals determined that the Commission lacked subject matter jurisdiction over retaliatory discharge claims and vacated the Commission's $300,000 award to the employee. While the employee's appeal was pending before the Tennessee Supreme Court, the Tennessee General Assembly retroactively broadened the Commission's jurisdiction to include retaliatory discharge claims. The Tennessee Supreme Court reversed this court's decision and remanded the case to this court for further consideration. We have determined that the Tennessee General Assembly may enact retroactive laws waiving the State's sovereign immunity with regard to past events, and we accede to the Tennessee Supreme Court's decision in this case that the General Assembly validated the results of this proceeding. We also have concluded that the Commission had authority to award front pay damages. Accordingly, we affirm the Commission's award. http://www.tba.org/tba_files/TCA/morrisd.wpd MAURICE SCHWEGMAN, et al. v. SHELBY D. HOWARD, III, et al. Court:TCA Attorneys: James A. Freeman, III, and John R. Callcott, Nashville, Tennessee, for the appellants Maurice Schwegman, et al. Wallace W. Dietz and Henry L. Hipkens, Nashville, Tennessee, and Michael J. Rusnak, Stephen J. Peters, and David I. Rubin, Indianapolis, Indiana, for the appellees Shelby D. Howard, III, et al. Judge: PERRY First Paragraph: Maurice Schwegman filed a complaint alleging claims for breaches of fiduciary duty by appellees, Shelby D. Howard and Malcolm L. Greeno, in their capacity as shareholders with Schwegman in a closely held corporation, breaches of fiduciary duty by Howard and Greeno in their capacity as officers and directors of the closely held corporation, and for breach of contract between Howard and Schwegman with respect to the assignment of an interest in another closely held company. The chancellor granted the appellees' motion for summary judgment and dismissed the case. We reverse as to the breach of contract issue and affirm as to all other issues. http://www.tba.org/tba_files/TCA/schwegmanm.wpd ANTONIO L. SWEATT v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Judge:CANTRELL OPINION DENYING PETITION FOR REHEARING http://www.tba.org/tba_files/TCA/sweattarehear.wpd LESLIE SWEATT (ACKERMAN) v. MICHAEL SWEATT Court:TCA Attorneys: John M. Cannon, Goodlettsville, Tennessee, for the appellant, Leslie Sweatt (Ackerman). Jeffrey S. Pulley, Nashville, Tennessee, for the appellee, Michael Sweatt. Judge: PERRY First Paragraph: Mother appeals the trial court's denial of her motion to set aside what she characterizes as a "default judgment" awarding custody of the parties' minor children to the Father. Because the Mother's procedural due process rights were protected by the trial court, and the trial court heard evidence regarding factors which must be considered by a court in making custody modifications, we affirm. http://www.tba.org/tba_files/TCA/sweattl.wpd TEXTRON FINANCIAL CORPORATION v. ELAINE E. POWELL, et al. Court:TCA Attorneys: Stephen C. Knight, Nashville, Tennessee, for the appellants, Elaine E. Powell and John E. Powell. Melissa Blackburn, Nashville, Tennessee, for the appellee, Textron Financial Corporation. Judge: FARMER First Paragraph: This dispute arises out of a personal guaranty executed by the defendants securing a loan. Following a trial by jury, the court below awarded the plaintiff $68,330 in damages plus attorney's fees and costs. On appeal, the defendants contend that the court below erred in applying the parol evidence rule to evidence which would show mistake and in not permitting the defendants to amend their answer. We reverse the judgment entered below and remand for a new trial. http://www.tba.org/tba_files/TCA/textron.wpd STATE OF TENNESSEE v. CHARLES BERRY BOURNE, JR. Court:TCCA Attorneys: Carrie W. Kersh, Clarksville, Tennessee (at trial); Roger Eric Nell, District Public Defender; and Collier W. Goodlett, Assistant District Public Defender (on appeal), for the appellant, Charles Berry Bourne, Jr. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant appeals his conviction by a jury for the offense of arson and the resulting five-year sentence. The issues presented for our review are: (1) whether the evidence was sufficient to support the verdict; (2) whether the trial court erred in allowing an investigator to testify as an expert in arson investigation; (3) whether the trial court erred in not dismissing the indictment based upon the state's failure to provide proper discovery; and (4) whether the trial court erred in applying a sentencing enhancement factor. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/bournecb.wpd STATE OF TENNESSEE v. STEVEN D. FISH Court:TCCA Attorneys: Eugene B. Dixon (on appeal) and Jerry G. Cunningham (at trial), Maryville, Tennessee, for the appellant, Steven D. Fish. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Mike Flynn, District Attorney General; and Kirk Andrews and Edward P. Bailey, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: As a result of his guilty plea to one count of attempted rape of a child, the appellant, Steven D. Fish, was sentenced to eight years incarceration in the Tennessee Department of Correction, with thirty days to be served in confinement and the balance served on supervised probation. After the appellant began serving his probationary sentence, a probation violation warrant was issued. Subsequent to a probation revocation hearing, the trial court found that the appellant had violated the terms of his probation and ordered the appellant to serve the remainder of his sentence in confinement. On appeal, the appellant alleges that the trial court erred in revoking his probation. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/fishs.wpd STATE OF TENNESSEE v. JAMES ANDREW NICHOLS Court:TCCA Attorneys: Dan T. Bryant and L. Scott Grissom, Assistant Public Defenders, McMinnville, Tennessee, for the appellant, James Andrew Nichols. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Clement Dale Potter, District Attorney General; and Thomas J. Miner, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pled guilty to three Class C felony drug offenses. Following a sentencing hearing, the trial court imposed sentences of five years in the Tennessee Department of Correction for each offense and ordered that the sentences be served consecutively for an effective sentence of fifteen years. On appeal, the Defendant challenges the lengths, the manner of service, and the consecutive nature of the sentences. After review, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/nicholsja.wpd STATE OF TENNESSEE v. FRANK MICHAEL VUKELICH Court:TCCA Attorneys: Peter J. Strianse and Kimberly Shawn Hodde, Nashville, Tennessee, for the appellant, Frank Michael Vukelich. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and John C. Zimmerman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals the order of the Davidson County Criminal Court directing the clerk of that court to apply the defendant's funds, which were obtained through an attachment directed to the Metro Trustee, to the defendant's fines and court costs. We conclude the state improperly sought to enjoin enforcement of the chancery court's order relating to the distribution of these funds by seeking an injunction in the criminal court. We further conclude the funds were held by the Metro Trustee in custodia legis for the chancery court and were not subject to attachment. Therefore, we reverse the judgment of the criminal court. http://www.tba.org/tba_files/TCCA/vukelichfm_opn.wpd STATE OF TENNESSEE v. FRANK MICHAEL VUKELICH Court:TCCA HAYES DISSENTING http://www.tba.org/tba_files/TCCA/vukelichfm_dis.wpd DUI prosecution of drivers of motorized riding lawnmowers Date: September 30, 2002 Opinion Number: 02-102 http://www.tba.org/tba_files/AG/2002/OP102.pdf Construction of a Bridge on a State Road by a Non-Profit Foundation Date: October 1, 2002 Opinion Number: 02-103 http://www.tba.org/tba_files/AG/2002/OP103.pdf DUI Defendant's Rights to Designate Towing Company Date: October 1, 2002 Opinion Number: 02-104 http://www.tba.org/tba_files/AG/2002/OP104.pdf Register of Deeds' Legal Liability For Not Recording A Deed Date: October 1, 2002 Opinion Number: 02-105 http://www.tba.org/tba_files/AG/2002/OP105.pdf Collinwood City Judge Serving as Collinwood City Attorney Date: October 1, 2002 Opinion Number: 02-106 http://www.tba.org/tba_files/AG/2002/OP106.pdf Consequence of Attorney Refusing Appointment by Juvenile Court to Represent Parent or Child Date: October 1, 2002 Opinion Number: 02-107 http://www.tba.org/tba_files/AG/2002/OP107.pdf TennCare Open Enrollment for the Medically Eligible Date: October 1, 2002 Opinion Number: 02-108 http://www.tba.org/tba_files/AG/2002/OP108.pdf PLEASE FORWARD THIS E-MAIL! 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