Opinion FlashJanuary 7, 2003Volume 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):
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 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 PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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