March 25, 2003
Volume 9 Number 053
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
SAM THOMAS BURNETT v. BOARD OF PROFESSIONAL RESPONSIBILITY
Cecil D. Branstetter, Sr., Nashville, Tennessee, for the appellant,
Sam Thomas Burnett.
William Walter Hunt, III and Sandra Garrett, Nashville, Tennessee, for
the appellee, Board of Professional Responsibility.
This appeal involves the petition of Sam Thomas Burnett for
reinstatement to the practice of law pursuant to Tennessee Supreme
Court Rule 9, section 19. The sole issue on appeal is whether the
petitioner has the competency and learning in law required to practice
law in this State. Both the hearing committee and the trial court
found the petitioner to be morally fit to practice law in this State
and determined that his resumption of the practice of law will not be
detrimental to the integrity and standing of the bar or the
administration of justice or subversive to the public interest. The
Board has not challenged these findings on appeal.
Petitioner argues that the Chancery Court erred by conditioning the
reinstatement of his license to practice law upon successful
completion of the Tennessee bar examination. The Board of
Professional Responsibility ("Board") responds that the Chancery Court
properly applied Board of Professional Responsibility v. Davis, 696
S.W.2d 528 (Tenn. 1985), which requires successful completion of the
essay portion of the Tennessee bar examination as a condition of
reinstatement in cases, such as this one, where the petitioner has not
practiced law for a period of ten years. We are constrained to
disagree. While Davis created a presumption that generally requires
successful completion of the essay portion of the bar examination for
persons seeking reinstatement who have not practiced law for ten years
or more, this presumption may be overcome with clear and convincing
proof that the petitioner has taken specific steps during the course
of the suspension to maintain competency and knowledge of Tennessee
law. The petitioner has offered evidence sufficient to overcome the
presumption. Specifically, the record reflects that the petitioner
obtained the required number of continuing legal education courses
throughout his suspension, that he reviewed the advance sheets
reporting Tennessee appellate decisions throughout his suspension,
that he worked in law-related fields throughout his suspension, both
while incarcerated and after his release, that following his release
from prison he assisted two of his children in their law school
studies and in their preparations for the bar examination, and that he
discusses legal issues and legal developments on a regular basis with
his children and other attorneys and also on a radio talk show in
Nashville. We hold that the petitioner has offered clear and
convincing evidence of his "competency and learning in law" which
overcomes the presumption requiring successful completion of the essay
portion of the Tennessee bar examination as a condition to
reinstatement. Having satisfied the criteria, the petitioner is
reinstated without condition. The judgment of the Chancery Court
granting the petition for reinstatement therefore is affirmed as
BEALE STREET DEVELOPMENT CORPORATION v. GEORGE MILLER, et al. and
CURTIS CALVIN v. GEORGE B. MILLER
Robert A. Wampler, Memphis, TN, for Appellant
Brian S. Miller, Memphis, TN, for Appellee
This is a disagreement over the exercise of an option contract. The
Appellant asserts that he was prevented from exercising his option.
For the reasons stated below, we affirm the trial court's ruling that
the Appellant never made an unconditional tender of the funds required
to exercise the option, and thus did not properly exercise the option
during its term.
GAIL JONES CARSON, et al. v. DAIMLERCHRYSLER CORPORATION
Eugene A. Laurenzi, Memphis, Tennessee, Cyrus Mehri, Michael Kanovitz,
Washington, D.C., Jonathan Shub, Philadelphia, PA, Steve W. Berman and
Clyde A. Platt, Seattle, WA, and Cornish F. Hitchcock, Washington,
D.C., for the appellant, Gail Jones Carson.
J. Brook Lathram and Mia Gianotti Henley, Memphis, Tennessee, Charles
A. Newman, Kathy A. Wisniewski and Ann K. Covington, St. Louis,
Missouri, for the appellee, DaimlerChrysler Corporation.
The trial court dismissed plaintiff's cause of action upon finding it
moot. We affirm.
IN THE MATTER OF: D.A.H., DOB: 12/11/00,
A Child Under 18 Years of Age
Claiborne H. Ferguson, Memphis, For Appellant, Timothy Cope
Kevin W. Weaver, Cordova, For Appellee, Mid-South Christian Services,
Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond,
Assistant Attorney General, Intervenor, In Defense of Tenn.Code Ann.,
This is a termination of parental rights case. The father appeals
from the order of the juvenile court terminating parental rights to
his child. Specifically, the father asserts that the grounds for
termination cited by the trial court are no longer applicable based on
the Supreme Court's recent holding in Jones v. Garrett, 92 S.W.3d 385
(Tenn. 2002). Because we find a distinction between the instant case
and Jones v. Garrett, we affirm the order of the trial court.
GURKIN'S DRIVE-IN MARKET v. ALCOHOL AND LICENSING COMMISSION OF THE
CITY OF COLLIERVILLE
Leslie I. Ballin and James W. Curry, Memphis, Tennessee, for the
appellant, Gurkin's Drive-In Market.
Edward J. McKenney, Jr., Memphis, Tennessee, for the Collierville Beer
Appellant was found by the Beer Board to be in violation of a city
ordinance prohibiting the sale of beer to a minor. The Board
suspended Appellant's beer permit for forty-five days. It is
contended on appeal that the proceedings should be held null and void
because the hearing began with a prayer and further contended that the
trial court applied the wrong standard of review. We affirm.
ARTHUR INGRAM, JR., ET AL. v. BEAZER HOMES CORPORATION d/b/a
PHILLIPS BUILDERS, INC.
Todd E. Panther, Nashville, Tennessee, for Appellant, Beazer Homes
Corporation, d/b/a Phillips Builders, Inc.
Paul T. Housch, Nashville, Tennessee, for Appellees, Arthur Ingram,
Jr., et al.
This litigation arises from the 1994 sale of a newly constructed house
and lot backing up to a subdivision common area with an existing
natural sinkhole, which is utilized for surface water drainage from
several nearby lots. During development of the subdivision the
defendant filled the area including a portion of the lot purchased by
the plaintiffs. In 1997, the plaintiffs became concerned about the
ground settling in their back yard and about perceived dangers of the
nearby sinkhole. They sued the defendant as subdivision developer,
house builder, and seller of the property and sought rescission or
alternative relief. The Chancery Court ordered rescission with the
plaintiffs recovering the appreciated value at the time of trial and
the cost of improvements, plus prejudgment interest on that total, but
without any setoff for the rental value during the plaintiffs'
occupancy. We reverse and remand due to errors in the trial court's
calculation of the amount payable upon rescission and related issues.
While we could affirm the rescission, we are reluctant to limit the
parties and the trial court to that remedy, since we anticipate
additional proof by the parties and a significantly different result
RUSSELL M. LIPSEY, Individually and d/b/a SECURITY WATCH and SECURITY
WATCH, INC. v. PROTECH FIRE SYSTEMS, INC. and JERRY PANNELL
Edward M. Bearman, Memphis, Tennessee, for appellant, Russell M.
Lipsey, Individually and d/b/a Security Watch and Security Watch, Inc.
John R. Cannon, Jr., Memphis, Tennessee, for appellees, Protech Fire
Systems, Inc. and Jerry Pannell.
This is a negligence case. The owner of a three-story historic
building was remodeling it. He called a fire sprinkler company to
move a sprinkler pipe. The repairman cut one of the sprinkler pipes
and, thinking it was a "dead pipe," pushed it behind some sheetrock
without capping it. The sprinkler system was regulated by an air
compressor that filled the pipes with pressurized air until the system
was triggered to allow water to flow through the pipes. The repairman
left before the compressor completely charged the system, that is,
before the air pressure reached the required level to hold the water
back. Two days later, water began rushing out of a sprinkler pipe,
causing extensive damage to the building. The owner sued the fire
sprinkler company for damage to the building and its contents as well
as for interruption of his business. At the trial, there was
conflicting testimony about whether the water came out of the pipe
that the repairman cut or whether it came out of another pipe. The
jury found that both parties were zero percent responsible; thus, the
owner recovered no damages. The owner moved for judgment
notwithstanding the verdict or for a new trial. Both motions were
denied. The owner appeals, and we affirm.
PERRY MARCH v. LAWRENCE LEVINE, et al.
Corrections made to pages: 16, 20 and 24
John E. Herbison, Nashville, Tennessee, for the appellant, Perry
C.J. Gideon, Jr. and Margaret J. Moore, Nashville, Tennessee, for the
appellees, Lawrence Levine and Carolyn Levine, as Next Friends of
Janet Levine March, as Next Friends of Samson March and Tzipora March;
Children Janet Levine March, and in their Individual Capacities.
This matter is a dispute between Absentee Janet March's parents,
Lawrence and Carolyn Levine, and her husband, Perry March. The case
began as an in rem battle over the Absentee's property after Perry
March opened an absentee estate following Janet's disappearance.
However, the Levines, thirty-one months after the absentee estate was
opened, asked to amend the proceedings and add a claim for wrongful
death against Perry March. The court allowed the amendment. Perry
March incurred citations for civil contempt of court, and the Levines
were eventually granted a default judgment as a result of his
contempt. A judgment for $113,500,000.00 in damages was entered
against him. Perry March appealed. We find that the trial court
abused its discretion in allowing the wrongful death action, and we
reverse the trial court. The default judgment for wrongful death and
the award for damages against Perry March are reversed.
CITY OF OAKLAND, TENNESSEE v. LENITA McCRAW, et al.
Brian L. Kuhn and Thomas J. Walsh, Jr., For Appellants, Town of
Hickory Withe, Tennessee and Mayor David Shelton
Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, Ann Louise Vix, Senior Counsel, Nashville, For
Appellant, Members of the Fayette County Election Commission
Richard J. Myers, Memphis, For Appellee, City of Oakland
This is a municipal incorporation case which tests the
constitutionality of Chapter 129, Public Acts of 2001, codified as
T.C.A. S 6-1-210(b) and also presents the issue of whether the action
instituted by an adjoining incorporated municipality to invalidate the
incorporation of the neighboring area is an election contest governed
by the limitation period established by T.C.A. S 2- 17-105. The trial
court held that Chapter 129, Public Acts of 2001, is unconstitutional
and further held that the incorporated municipality's action to
invalidate the unincorporated area's referendum election and to revoke
its charter is not an election contest governed by T.C.A. S 2-17-105.
The territory seeking incorporation appeals, and the county election
commission that certified the election appeals by the Tennessee
Attorney General, defending the constitutionality of the subject Act.
STATE OF TENNESSEE v. CHRISTOPHER A. DAVIS
Herschell D. Koger, Pulaski, Tennessee, for the Appellant, Christopher
Paul G. Summers, Attorney General and Reporter; Gill R. Geldreich,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Tom Thurman and Katrin Miller, Assistant District
Attorneys General, for the appellee, State of Tennessee.
The Appellant, Christopher A. Davis, was found guilty by a jury of two
counts of first degree murder, two counts of especially aggravated
robbery, and two counts of especially aggravated kidnapping. The jury
sentenced the Appellant to death for each of the first degree murder
convictions. The Appellant presents the following issues in this
appeal as of right: (1) The trial court erred by not granting the
Appellant's motion to disqualify the Davidson County District Attorney
General's office from prosecuting the case; (2) the trial court erred
by not granting the Appellant's motion to prohibit the State from
relying upon the Appellant's prior murder conviction as an aggravating
circumstance, because the conviction was for a crime committed while
the Appellant was a juvenile; (3) the trial court erred by not
suppressing the statement the Appellant made to police; (4) the trial
court erred by denying defense counsel's motion to be allowed to
withdraw from representing the Appellant; (5) the trial court erred by
granting the State's motion to require the Appellant to supply the
State information concerning mental health expert testimony to be
presented during the sentencing phase of the trial; (6) the trial
court erred by allowing a physician who did not perform the autopsy to
testify concerning the autopsy and evidence obtained in connection
therewith; (7) the trial court erred in allowing victim impact
evidence to be introduced; (8) that the evidence presented at trial
was insufficient to support a finding of guilt beyond a reasonable
doubt; (9) that the evidence presented was insufficient to support the
jury's finding that the aggravating circumstances outweighed any
mitigating circumstances beyond a reasonable doubt; (10) that the
evidence presented was insufficient to support a finding that the
aggravating factors were established beyond a reasonable doubt; (11)
that Tennessee's death penalty statutory scheme is unconstitutional in
several instances; (12) that the trial court erred in allowing certain
cross-examination of defense witnesses; and (13) that the cumulative
effect of errors made at trial denied the Appellant a fair trial in
violation of his due process rights. Based on our review of the
record on appeal, we affirm both the Appellant's convictions and the
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