December 19, 2002
Volume 8 Number 223
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):
||New Opinion(s) from the Tennessee Supreme Court
||New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
||New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
||New Opinion(s) from the Tennessee Court of Appeals
||New Opinion(s) from the Tennessee Court of Criminal Appeals
||New Opinion(s) from the Tennessee Attorney General (PDF format)
||New Judicial Ethics Opinion(s)
||New Formal Ethics Opinion(s) from the Board of Professional Responsibility
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Howard H. Vogel
JOANNE CARTER v. FIRST SOURCE FURNITURE GROUP
S. Newton Anderson and Gayle B. Lakey, Memphis, Tennessee, for the
appellant, First Source Furniture Group.
Gregory A. Petrinjak and Mark P. Barnett, Jackson, Tennessee, for the
appellee, Joanne Carter.
In this workers' compensation case, we granted the defendant's motion
for review pursuant to Tennessee Code Annotated section 50-6-225(e)
primarily to determine whether the trial court erred by finding that
the two and one-half times cap on the permanent partial disability
award set forth in Tennessee Code Annotated section 50-6-241(a)(1) did
not apply, where the plaintiff was fired by the employer for gross
misconduct prior to being treated for her injury. We hold that an
employer should be permitted to enforce workplace rules without being
penalized in a workers' compensation case. Thus, the trial court
erred in refusing to apply the two and one-half times cap found in
Tennessee Code Annotated section 50-6-241(a)(1). Furthermore, under
our review, where expert medical testimony is by deposition, we may
draw our own conclusions about the weight and credibility to be given
to the medical testimony. Given the disagreement between the
evaluating and treating physicians over the surgical procedure
performed on the plaintiff, we are of the opinion that the physician
who actually performed the surgery was better situated to understand
and rate the resulting impairment. We adopt the medical impairment
rating of the treating physician, equating to 6% to the body as a
whole and set the plaintiff's permanent partial disability at 15% to
the body as a whole.
JOHN T. KING v. ANNE B. POPE
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Janet M. Kleinfelter, Senior Counsel,
Nashville, Tennessee, for Appellant, Anne B. Pope, Commissioner of the
Tennessee Department of Commerce and Insurance.
R. Louis Crossley, Jr., Knoxville, Tennessee, and W. Davidson Broemel,
Nashville, Tennessee, for Appellee, John T. King.
In this case, we must decide whether a pay telephone sale-leaseback
program marketed and sold by the plaintiff constitutes an investment
contract, and thus a security under the Tennessee Securities Act of
1980. In finding that the program was a security, the trial court
applied the definition of "investment contract" adopted by the Court
of Criminal Appeals in State v. Brewer, 932 S.W.2d 1 (Tenn. Crim.
App.), perm. app. denied (Tenn. 1996). Under this test, an
investment contract exists where (1) An offeree furnishes initial
value to an offeror, and (2) a portion of this initial value is
subjected to the risks of the enterprise, and (3) the furnishing of
the initial value is induced by the offeror's promises or
representations which give rise to a reasonable understanding that a
valuable benefit of some kind, over and above the initial value, will
accrue to the offeree as a result of the operation of the enterprise,
and (4) the offeree does not receive the right to exercise practical
and actual control over the managerial decisions of the enterprise.
Brewer, 932 S.W.2d at 11 (quoting State v. Hawaii Market, 485 P.2d
105, 109 (Haw. 1971)).
The Court of Appeals rejected the Brewer test and instead adopted the
federal test for determining whether a particular transaction is an
investment contract. See United Hous. Found., Inc. v. Forman, 421
U.S. 837 (1975); SEC v. W.J. Howey Co., 328 U.S. 293 (1946).
Applying this test, the Court of Appeals held that the pay telephone
sale-leaseback program at issue in this case is not a security. After
careful consideration, we agree with the trial court's finding that
the appropriate test for determining the presence of an investment
contract is set forth in Brewer. Applying this test, we agree with
the trial court that the plaintiff's payphone sale-leaseback program
is an investment contract and that the plaintiff was thus marketing
and selling unregistered securities in violation of Tennessee law.
GLORIA B. LANE v. W.J. CURRY & SONS
Elder Shearon, III, Memphis, Tennessee, for the plaintiff-appellant,
Gloria B. Lane.
Robert A. Cox and James F. Horner, Jr., Memphis, Tennessee, for the
defendant-appellee, W.J. Curry & Sons.
We granted review in this case to determine whether a landowner can
bring a nuisance action against an adjoining landowner when tree
branches and roots from the adjoining landowner's property encroach
upon and damage the neighboring landowner's property. The plaintiff
asserts that encroaching branches and roots from the defendant's trees
constitute a nuisance for which she is entitled to seek damages. The
defendant responds that the plaintiff's sole remedy is self-help and,
therefore, the plaintiff may not recover for any harm caused by the
defendant's trees. The trial court and Court of Appeals agreed with
the defendant, and held that an adjoining landowner's only remedy is
self-help and that a nuisance action cannot be brought to recover for
harm caused by encroaching tree branches and roots.
We have determined that self-help is not the sole remedy of an
adjoining landowner and that a nuisance action may be brought when
tree branches and roots from the adjacent property encroach upon and
damage the neighboring landowner's property. Although encroaching
trees and plants are not nuisances merely because they cast shade,
drop leaves, flowers, or fruit, or just because they encroach upon
adjoining property either above or below the ground, they may be
regarded as a nuisance when they cause actual harm or pose an imminent
danger of actual harm to adjoining property. If so, the owner of the
tree or plant may be held responsible for harm caused by it and may
also be required to cut back the encroaching branches or roots,
assuming the encroaching vegetation constitutes a nuisance. We do
not, however, alter existing Tennessee law that the adjoining
landowner may, at his own expense, cut away the encroaching vegetation
to the property line whether or not the encroaching vegetation
constitutes a nuisance or is otherwise causing harm or potential harm
to the adjoining property. We further find that the record in this
case is sufficient to establish liability for nuisance. Accordingly,
the judgment of the Court of Appeals affirming the trial court's
dismissal of the case is reversed. The case is remanded to the trial
court for a determination of damages and other appropriate relief.
AMERICAN NATIONAL PROPERTY & CASUALTY COMPANIES v. JAMES E. ROBERTS, et al.
Alan M. Sowell, Nashville, Tennessee, for the appellant, American
National Property and Casualty Companies.
Keith Jordan, Nashville, Tennessee, and J. Thomas Smith, Franklin,
Tennessee, for the appellee, James E. Roberts.
Michael P. Dolan, Nashville, Tennessee, for the appellee, Stephen E.
Harry A. Wilson, Jr., Indianapolis, Indiana, and Phillip B. Jones,
Nashville, Tennessee, for the appellees, Donald R. Yeoman and Janice
Larry L. Crain, Brentwood, Tennessee, for the appellee, Jeffrie Todd
Shelley I. Stiles, Brentwood, Tennessee, for the appellee, Mike Keil &
James D. Kay, Jr. and Matthew Brothers, Nashville, Tennessee, for the
appellee, George Durnin & Assoc., Inc., d/b/a Tennessee Car & Van
This appeal involves a coverage dispute between the driver of a rented
van and his insurance company. Following a single-vehicle accident
that killed one passenger and injured two others, the driver's
insurance company denied coverage because the driver was not operating
the van with its owner's permission. Thereafter, the insurance
company filed a declaratory judgment action in the Chancery Court for
Davidson County. The trial court denied the insurance company's
motion for summary judgment after concluding that the term "owner" as
it appeared in the policy was ambiguous. Thereafter, the trial court
granted the driver's motion for summary judgment after concluding, as
a matter of law, that he had been operating the rented van with the
owner's permission. We have determined that the trial court should
not have granted the driver a summary judgment because the record
contains material factual disputes regarding whether the driver was
operating the rented van with the owner's permission.
ANR PIPELINE CO., COLONIAL PIPELINE CO., COLUMBIA GULF TRANSMISSION
CO., et al. v. TN BOARD OF EQUALIZATION
Harlan Dodson, III, and Paul Parker, Nashville, Tennessee, for the
appellant, ANR Pipeline.
Everett B. Gibson, Memphis, Tennessee, and Ron L. Quigley, Atlanta,
Georgia, for the appellant, Colonial Pipeline Company.
Brigid M. Carpenter, Nashville, Tennessee, James W. McBride,
Washington, D.C., and Stephen Dorr Goodwin, Memphis, Tennessee, for
the appellants, Columbia Gulf Transmission, East Tennessee Natural
Gas, Midwestern Gas Transmission, Southern Natural Gas Company,
Tennessee Gas Pipeline Company, Texas Eastern Transmission
Corporation, Texas Gas Transmission Corp., and Trunkline Gas Co.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Mary Ellen Knack, Assistant Attorney General;
Robert Lee, Staff Attorney, for the appellee, State of Tennessee.
James Charles and Jennifer Clinard Surber, Nashville, Tennessee, for
Intervenor, Metropolitan Government of Nashville & Davidson Co.
Jean Dyer Harrison, Nashville, Tennessee, and Jeffrey Dean Moseley,
Franklin, Tennessee for Intervenor, Williamson County Government.
Pipelines for the transport of petroleum products were installed
sub-surface by various companies which acquired easements over
affected freeholds. These pipelines were assessed as real estate for
purposes of taxation. Petitions for Review were filed by the Pipeline
Companies alleging that the pipelines were personal property. The
decision of the Board of Equalization is reversed.
TERESA LYNN KIDWELL ATKINS v. RONAL LEE ATKINS
Danny C. Garland, II, Knoxville, Tennessee, for the appellant, Ronal
Sherry L. Mahar, Knoxville, Tennessee, for the appellee, Teresa Lynn
This is a divorce case involving the enforceability of a
reconciliation agreement ("the Agreement"), providing that Teresa Lynn
Kidwell Atkins ("Wife") will not make a claim "in any subsequent
[d]ivorce [s]uit or [l]egal [p]roceeding" to a mobile home and acreage
titled in the name of Ronal Lee Atkins ("Husband"). The trial court
held that the Agreement - which was some nine years old when Wife
filed the instant divorce action - was no longer enforceable. The
court then found the subject property to be marital property and
proceeded to award it to Wife as a part of her equitable division of
marital property. Husband appeals, insisting that he is entitled to
the mobile home and acreage pursuant to the terms of the Agreement.
TERESA LYNN KIDWELL ATKINS v. RONAL LEE ATKINS
THE TENNESSEE DEPARTMENT OF HEALTH, et al. v. GARY C. BOYLE, M.D., et al.
Thomas C. Jessee, Johnson City, Tennessee, for the appellants, Gary C.
Boyle, M.D., Wesley A. Adams, Jr., M.D., Adams & Boyle, P.C., d/b/a
The Women's Center; Angus McDonald Green Crook, M.D., Debra Jo Adams,
Leisa Boyle, Welshwood Partnership, Adams & Boyle Partnership, and
Regina Taylor Hensley.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Michael W. Catalano, Associate Solicitor General;
and E. Blaine Sprouse, Assistant Attorney General, for the appellee,
State of Tennessee.
The issue in this case is the constitutionality of a Tennessee statute
requiring a private clinic that performs a "substantial number" of
abortions to acquire a certificate of need from the Health Facilities
Commission and a license from the Department of Health. The Chancery
Court of Davidson County upheld the statute, enjoined the defendants
from operating without a certificate and a license, and imposed
substantial monetary sanctions for civil contempt. We hold that the
statute violates relevant provisions of the United States and
Tennessee Constitutions. We therefore reverse the judgment below and
dismiss the contempt charge.
BILLY ALLAN BRASWELL, et ux. v. AC and S, INC., et al.
Hugh B. Bright, Jr., Michael J. King, and Robert L. Vance, for
Appellant, National Service, Industries, Inc.
Mike G. Nassios, Timothey M. McLaughlin and Robert S. Patterson,
Knoxville, Tennessee, for Appellees, Billy Allan Braswell, Nannie Mae
Bunton and Henry L. Bales.
The Trial Court allowed plaintiff to add seller as party to products
liability action more than one year after injury and denied seller
summary judgment on defense of the statute of limitations. We affirm.
FIRST NATIONAL BANK OF CHICAGO, et al. v. CUMBERLAND BEND INVESTORS, L.P., et al.
Steven C. Douse, Nashville, Tennessee, for the appellant, The First
National Bank of Chicago.
Gary S. Rubenstein, Nashville, Tennessee, for the appellees,
Cumberland Bend Investors, L.P.; River Investors, Inc.; William Moss
Wilson; and Debra C. Stanton.
This appeal involves a dispute between a buyer and a seller of
commercial property in Nashville over the buyer's obligation to
indemnify the seller for legal expenses incurred in a successful
defense of a suit for commissions filed by the former manager of the
property. The seller filed suit in the Chancery Court for Davidson
County seeking to recover its legal expenses from the buyer under the
theories of indemnification and contribution. The trial court granted
the buyer's motion for summary judgment and dismissed the complaint
because the seller failed to prove that it had an express or implied
right to indemnification and because, as a matter of law, contribution
was inappropriate under the circumstances. We concur and, therefore,
affirm the trial court's dismissal of the complaint.
THE ESTATE OF ALLINE ELIZABETH GLASGOW, CLARENCE E. BIGGS, et al. v.
VIRGIL S. WHITTUM, et al.
James Robin McKinney, Jr., Nashville, Tennessee, for the appellant,
Virgil S. Whittum.
Paul T. Housch, Nashville, Tennessee, for the appellees, Clarence E.
Biggs, Raymond Glasgow, Jr., R.B. Biggs, Richard Biggs, and William
Proponents appeal judgment of the trial court on a jury verdict
against the Will on a finding of undue influence by the proponents
upon the testatrix. We affirm the judgment of the trial court.
JOHN JAY HOOKER v. DON SUNDQUIST, et al.
Paul G. Summers, Attorney General and Reporter, Michael E. Moore
Solicitor General, and Janet M. Kleinfelter, Senior Counsel, for the
Appellants, Governor Don Sundquist, Paul Summers, Lt. Governor John
Wilder and Jimmy Naifeh.
John Jay Hooker, Pro se.
This case involves an appeal from an order denying a motion for Rule
11 sanctions. We reverse and remand.
KANTA KEITH, et al. v. GENE ERVIN HOWERTON, et al.
Donald K. Vowell and Elizabeth K. Johnson, Knoxville, Tennessee, for
the appellants, Kanta Keith and Walter Jackson.
Craig L. Garrett, Maryville, Tennessee, for the appellees, Gene Ervin
Howerton and Easy Money, Inc.
This case is on appeal for the second time. In the first appeal, we
held that the defendants violated the Tennessee Consumer Protection
Act ("the Act") in certain pawn transactions with the plaintiffs. We
remanded the case to the trial court for a determination of whether
the plaintiffs were entitled to treble damages and attorney's fees
under the Act. Following a bench trial on these issues, the court
below determined that the plaintiffs were not entitled to treble
damages, but that they were entitled to a slight augmentation of their
compensatory awards. In addition, the trial court awarded attorney's
fees and costs, in amounts which are substantially less than those
claimed by counsel. The plaintiffs appeal, arguing that the trial
court erred in refusing to award treble damages and in its award of
fees and costs. By way of a separate issue, the defendants argue that
the trial court erred in granting a declaratory judgment to the
plaintiff, Kanta Keith ("Mr. Keith"), following the death of his wife,
the plaintiff, Darlene Keith ("Mrs. Keith"). We affirm in part,
vacate in part and remand.
DAVID RALPH LILES, et al. v. REBECCA SUE MITCHELL, et al.
Anthony E. Hagan, Lebanon, Tennessee, for the appellant, Mark Steven
Susan M. Merry, Lebanon, Tennessee, for the appellees, David Ralph
Liles and Barbara Ann Liles.
Mark Steven Blair appeals the action of the trial judge in granting
custody of his minor child, born out of wedlock, to the maternal
grandparents. Finding that a substantial risk of harm might occur to
the minor child if custody was placed with Mr. Blair and that the
biological mother of the child was incarcerated, the trial court
vested custody of the child in the maternal grandparents with
substantial visitation rights given to Mr. Blair, the biological
father. We affirm the judgment of the trial court.
JOSEPH MCCULLOUGH, et ux. v. JOHNSON CITY EMERGENCY PHYSICIANS, P.C., et al.
David C. Lee, J.D. Lee, Knoxville, Tennessee, for the Appellants,
Joseph McCullough, et. ux.
Jimmie C. Miller, Nancy C. Eastridge, Kingsport, Tennessee, for the
Appellees, Johnson City Emergency Physicians, P.C. and Linda Monteith,
Jeffrey M. Ward, Greeneville, Tennessee, for the Appellee, Cardiology
Consultants of Johnson City, P.C.
Charles T. Herndon, IV, Johnson City, Tennessee, for the Appellees,
Brett Wyche, M.D. and Wyche and Wyche, M.D., P.C.
Joseph McCullough ("Mr. McCullough") suffered an acute anterior
myocardial infarction on September 1, 1997. He was treated in the
hospital by Albert R. Blacky, M.D. ("Dr. Blacky") of Cardiology
Consultants of Johnson City, P.C. ("Cardiology Consultants") and
placed on anticoagulation therapy. Later the same month, Mr.
McCullough was treated by Linda Monteith, M.D. ("Dr. Monteith") of
Johnson City Emergency Physicians, P.C. ("Johnson City Emergency
Physicians") and Brett Wyche, M.D. ("Dr. Wyche") of Wyche and Wyche,
M.D., P.C. ("Wyche & Wyche"), for various complaints. Around
September 27, 1997, Mr. McCullough suffered a massive cerebellar
hemorrhage resulting in permanent impairment. Mr. McCullough and his
wife ("Plaintiffs" or "Appellants") sued Johnson City Medical Center
Hospital, Inc. ("the Hospital"); Dr. Monteith; Johnson City Emergency
Physicians; Dr. Wyche; and Wyche & Wyche. Plaintiffs later filed a
second amended complaint adding Cardiology Consultants and Kmart
Corporation ("Kmart") as defendants. The various defendants answered
the second amended complaint alleging comparative fault against
Cardiology Consultants. Cardiology Consultants and Kmart were granted
summary judgment. Several days into trial, Plaintiffs moved for leave
to file a third amended complaint re-adding Cardiology Consultants as
a defendant relying on Tenn. Code Ann. S 20-1-119. The Trial Court
denied this motion as well as Plaintiffs' motion for a mistrial. The
jury rendered a defense verdict. Plaintiffs appeal. We affirm.
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