Opinion Flash

October 8, 2002
Volume 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):
01 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
10 New Opinion(s) from the Tennessee Court of Appeals
04 New Opinion(s) from the Tennessee Court of Criminal Appeals
06 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


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

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