Opinion Flash

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):
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
08 New Opinion(s) from the Tennessee Court of Appeals
01 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 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




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.                      


First Paragraph:

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 Court:TCA Attorneys: Robert A. Wampler, Memphis, TN, for Appellant Brian S. Miller, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: 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. http://www.tba.org/tba_files/TCA/bealest.wpd
GAIL JONES CARSON, et al. v. DAIMLERCHRYSLER CORPORATION Court:TCA Attorneys: 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. Judge: FARMER First Paragraph: The trial court dismissed plaintiff's cause of action upon finding it moot. We affirm. http://www.tba.org/tba_files/TCA/carsong.wpd
IN THE MATTER OF: D.A.H., DOB: 12/11/00, A Child Under 18 Years of Age Court:TCA Attorneys: Claiborne H. Ferguson, Memphis, For Appellant, Timothy Cope Kevin W. Weaver, Cordova, For Appellee, Mid-South Christian Services, Inc. Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Assistant Attorney General, Intervenor, In Defense of Tenn.Code Ann., Sec. 36-1-113(g)(9)(A) Judge: CRAWFORD First Paragraph: 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. http://www.tba.org/tba_files/TCA/dah.wpd
GURKIN'S DRIVE-IN MARKET v. ALCOHOL AND LICENSING COMMISSION OF THE CITY OF COLLIERVILLE Court:TCA Attorneys: 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 Board. Judge: FARMER First Paragraph: 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. http://www.tba.org/tba_files/TCA/gurkins.wpd
ARTHUR INGRAM, JR., ET AL. v. BEAZER HOMES CORPORATION d/b/a PHILLIPS BUILDERS, INC. Court:TCA Attorneys: 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. Judge: JONES First Paragraph: 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 upon remand. http://www.tba.org/tba_files/TCA/ingram.wpd
RUSSELL M. LIPSEY, Individually and d/b/a SECURITY WATCH and SECURITY WATCH, INC. v. PROTECH FIRE SYSTEMS, INC. and JERRY PANNELL Court:TCA Attorneys: 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. Judge: LILLARD First Paragraph: 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. http://www.tba.org/tba_files/TCA/lipsey.wpd
PERRY MARCH v. LAWRENCE LEVINE, et al. Corrections made to pages: 16, 20 and 24 Court:TCA Attorneys: John E. Herbison, Nashville, Tennessee, for the appellant, Perry March. 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. Judge: CAIN First Paragraph: 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. http://www.tba.org/tba_files/TCA/marchperrycorr.wpd
CITY OF OAKLAND, TENNESSEE v. LENITA McCRAW, et al. Court:TCA Attorneys: 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 Judge: CRAWFORD First Paragraph: 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. We affirm. http://www.tba.org/tba_files/TCA/oakland.wpd
STATE OF TENNESSEE v. CHRISTOPHER A. DAVIS Court:TCCA Attorneys: Herschell D. Koger, Pulaski, Tennessee, for the Appellant, Christopher A. Davis. 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. Judge: WELLES First Paragraph: 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 sentences imposed. http://www.tba.org/tba_files/TCCA/davisca.wpd

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