Opinion Flash

January 7, 2003
Volume 9 — Number 004

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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
06 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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


JESSICA DIANE TOMS v. JAMES ANTHONY TOMS, et al.

Court:TSC

Attorneys: 

William T. Winchester, Memphis, Tennessee, for the appellant, Jessica
Diane Toms.

Wendy S. Dabbous, Memphis, Tennessee, for the appellee, James Anthony
Toms.

William M. Monroe, Memphis, Tennessee, for the intervenors-appellees,
Gerald Williams and Robin Williams.

Barbaralette G. Davis, Christina A. Zawisza, Nancy Percer Kessler, and
Webb A. Brewer, Memphis, Tennessee, for the amicus curiae, Memphis
Area Legal Services, Inc.

Marc E. Reisman, Memphis, Tennessee, for the guardian ad litem, Susan
A. Hinsley.

Judge: HOLDER

First Paragraph:

This case is before the Court on an interlocutory appeal pursuant to
Rule 10 of the Tennessee Rules of Appellate Procedure.  In this
extraordinary appeal, Appellant asserts that the trial court erred in
granting temporary custody of her two children to their paternal
grandparents during the pendency of the underlying divorce action. 
Specifically, she claims that the trial court erred in failing to
conduct an evidentiary hearing and in considering only the guardian ad
litem's reports in making its custody determination.  Having carefully
reviewed the issues raised by the parties, we hold that the trial
court erred in basing its decision to change custody solely upon the
guardian ad litem's reports.  Accordingly, we reverse the judgment of
the trial court awarding custody to the grandparents and remand the
case for proceedings consistent with this opinion.

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

LOREN BORDERS v. LUCIAN BORDERS, et al.

Court:TCA

Attorneys:

Fletcher W. Long and Gregory D. Clayton, Memphis, Tennessee, for the
appellant, Loren Borders.

Philip C. Kelly, Mark T. Smith, Gwynn K. Smith, Gallatin, Tennessee,
for the appellee, Lucian Borders.                    

Judge: FARMER

First Paragraph:

Trial court held that doctrine of collateral estoppel barred
Appellant's civil suit against Appellee for damages stemming from an
alleged assault where Appellant had previously been convicted of
assaulting Appellee during the incident in question.  We reverse and
remand.

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

SHERITA L. DONALDSON v. LANA BEAVERS, M.D.

Court:TCA

Attorneys:

Thomas Pinckney, Nashville, For Appellant, Lana Beavers, M.D.

William Kennerly Burger, Murfreesboro, For Appellee, Sherita L.
Donaldson                         

Judge: CRAWFORD

First Paragraph:

Patient filed medical malpractice action against physician alleging
negligence in performance of operation procedure and negligence in
physician's post-operative care.  Jury returned verdict for physician
on the issue of negligent post-operative care but deadlocked on the
issue of negligence in performance of surgery.  Trial court declared a
mistrial and entered an order denying physician's motion for entry of
final judgment on the issue of post-operative care and ordering a new
trial on all of patient's claims.  Physician was granted interlocutory
appeal.  The only issue for review is whether, under the circumstances
of this case, a new trial should be confined only to the issues of the
physician's negligence in performing the surgery.  We affirm and
remand.

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

IN THE MATTER OF: TONY W. HEDGE 

Court:TCA

Attorneys:

William H. Farmer, Nashville, TN, for Appellant

Paul G. Summers, Attorney General & Reporter, Kim R. Helper, Assistant
Attorney General, Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This appeal arises from a contempt proceeding against Attorney Andrew
J. Shookhoff.  The juvenile court held Mr. Shookhoff in contempt for
his failure to appear at a review hearing involving his minor client. 
This appeal ensued.  For the following reasons, we reverse.

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

PATRICK MCGEE v. TIMOTHY BEST, et al.
(Originally filed 6/18/2002; makes correction on page 22.)

Court:TCA

Attorneys:

G. Kline Preston, IV, Nashville for Appellant, Patrick McGee

Tim K. Garrett, Nashville, For Appellees, Timothy Best, Robert Frank,
David Ingram, Ingram Entertainment, Inc., and McGee, Best, Frank &
Ingram LLC

Judge: CRAWFORD

First Paragraph:

This case involves the termination of membership and employment of a
member of an LLC.  The terminated member and employee filed suit
against the LLC and the other members thereof alleging breach of
contract, breach of covenant of good faith and fair dealing, breach of
fiduciary duty, civil conspiracy, unfair competition, fraud, and
misrepresentation.  The trial court granted defendants' motion for
judgment on the pleadings as to all claims except the claim for breach
of contract and breach of the covenant of good faith and fair dealing.
Thereafter, the trial court granted defendants' motion for summary
judgment on the remaining two claims.  Plaintiff appeals.  We affirm,
modify, reverse in part, and remand.

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

TERESA LYNN (MACKIE) SCALES v. KENNETH ALLAN MACKIE

Court:TCA

Attorneys:

Louise R. Fontecchio, Nashville, TN, for Appellant

Charlotte U. Fleming, Angela Childress, Nashville, TN, for Appellee                     

Judge: HIGHERS

First Paragraph:

This appeal arises from the denial of a petition to modify visitation
with a minor child.  The trial court denied the father's petition,
finding that the father failed to show that as a result of a material
change in circumstance, his daughter had been harmed or was at risk of
substantial harm due to the existing visitation arrangement.  The
primary issue on appeal is whether the trial court applied the correct
legal standard in dismissing the father's petition.  For the following
reasons, we reverse and remand.

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

VANTAGE FINANCIAL CORPORATION v. THOMAS S. McNIEL

Court:TCA

Attorneys: 

Mark A. Baugh, Nashville, Tennessee, for the appellant, Thomas S.
McNiel

Phillip Byron Jones, Nashville, Tennessee, for the appellee, Vantage
Financial Corporation

Judge: MALOAN

First Paragraph:

This appeal arises from summary judgment being granted in favor of the
plaintiff on a promissory note and compromise agreement.  On this
appeal, the defendant contends summary judgment was inappropriate
because genuine issues of material fact existed as to whether the
plaintiff had waived its rights under the promissory note and
compromise agreement and whether the defendant was in default.  We
affirm and find the plaintiff is entitled to summary judgment as a
matter of law.

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

STATE OF TENNESSEE v. FRANKIE DONALD RELEFORD

Court:TCCA

Attorneys:

Julie A. Rice, Knoxville, Tennessee, for the appellant, Frankie Donald
Releford.

Paul G. Summers, Attorney General & Reporter; Braden H. Boucek,
Assistant Attorney General; Greeley Welles, District Attorney General;
and Joseph Perrin, Assistant District Attorney General, for the
appellee, State of Tennessee.                        
 
Judge: SMITH

First Paragraph:

The defendant, Frankie Donald Releford, brings this direct appeal of
his convictions for possession of cocaine with intent to sell or
deliver, possession of marijuana, possession of drug paraphernalia, to
wit, rolling papers, and destruction of evidence.  The trial court
sentenced the defendant to serve  an aggregate eleven-year sentence. 
In this appeal, the defendant alleges (1) that the trial court
erroneously denied his motion to suppress drugs and drug paraphernalia
seized in a search incident to his arrest, (2) that the trial court
erroneously allowed a witness to testify regarding the results of two
spectrophotometer tests without sufficiently establishing the
reliability of those instruments, (3) that the evidence is
insufficient to support his convictions, (4) that the trial court
erred by refusing to grant his motion for new trial on the basis of
newly discovered evidence, and (5) that the trial court improperly
sentenced him.  After reviewing the record and applicable case law, we
find that none of the defendant's allegations merit relief and
therefore affirm the judgment of conviction.

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

STATE OF TENNESSEE v. MICHAEL J. YOUNG

Court:TCCA

Attorneys:

Patrick T. McNally and Joseph T. Howell, Nashville, Tennessee, for the
appellant, Michael J. Young.


Paul G. Summers, Attorney General and Reporter; Christine M. Lapps,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and John W. Price, III, Assistant District Attorney
General, for the appellee, State of Tennessee.                       

Judge: RILEY

First Paragraph:

The defendant pled guilty to two counts of sexual battery by an
authority figure and two counts of  statutory rape.  He received
agreed sentences totaling five years.  The defendant sought
alternative sentencing from the trial court, which was denied.  In
this appeal, the defendant argues the trial court improperly denied
alternative sentencing.  We affirm the judgment of the trial court.

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

County Legislative Body - Voting Requirement to Transact Business

Date: January 3, 2003

Opinion Number: 03-001                         

http://www.tba.org/tba_files/AG/2003/OP1.pdf

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