Opinion Flash

March 28, 2003
Volume 9 — Number 056

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):
00 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
07 New Opinion(s) from the Tennessee Court of Appeals
04 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




Gregory M. O'Neal, Winchester, For Appellant, Richard Dale Ford

Gerald L. Ewell,Jr., Tullahoma, For Appellees, Jeffrey L. Campora and
Coyle Clark                          


First Paragraph:

This case involves a dispute arising from a Promissory Note executed
by and between the Appellant/Maker and Appellee/Payee.  Specifically,
Appellant asserts that he signed the Note in a representative capacity
and, therefore, he is not personally liable on the Note.  The Circuit
Court of Franklin County granted Appellee's Motion for Summary
Judgment, entering a Judgment against Appellant for principal,
interest, and costs.  Appellant appeals from this Judgment.  We

EDWARD KEITH GRAY v. JOHNSON MOBILE HOMES OF TENNESSEE, INC. a/k/a JOHNSON HOMES and FLEETWOOD HOMES OF TENNESSEE, INC. and GREEN TREE FINANCIAL SERVICING CORPORATION Court:TCA Attorneys: Scottie O. Wilkes, Memphis, Tennessee, for appellant, Edward Keith Gray. Evan Nahmias, Memphis, Tennessee, for appellee, Fleetwood Homes of Tennessee, Inc. Judge: LILLARD First Paragraph: This is a contract case. The buyer contracted to purchase a mobile home. After the home was delivered, the buyer inspected it and found it to be in unsatisfactory condition. The buyer complained to the seller and then to the manufacturer, each of whom attempted to remedy the problems. The buyer found the repairs to be unacceptable and revoked his acceptance of the mobile home. The buyer sued the seller, the manufacturer, and the finance company. The buyer settled with the finance company. The seller became insolvent and did not appear at the trial. Consequently, the buyer went to trial against the seller and the manufacturer, with only the manufacturer present. The trial court found for the buyer and apportioned the damages between the seller and the manufacturer. On appeal, the buyer argues that the trial erred in apportioning the damages between the seller and the manufacturer, and in awarding him insufficient damages. The manufacturer argues that the trial court erred in denying its motion for involuntary dismissal, and in awarding damages against the manufacturer. We affirm. http://www.tba.org/tba_files/TCA/gray.wpd
STATE OF TENNESSEE DEPT. OF CHILDREN'S SERVICES v. D.D.B. a/k/a D.B.M. Court:TCA Attorneys: Worth Lovett, Clarksville, Tennessee, for Appellant, D.D.B., a/k/a D.B.M. Paul G. Summers, Attorney General & Reporter, Douglas Earl Dimond, Assistant Attorney General, Nashville, Tennessee, for Appellee, State of Tennessee Dept. of Children's Services. Judge: HARGROVE First Paragraph: This appeal arises from the termination of parental rights by the juvenile court. We affirm the juvenile court. http://www.tba.org/tba_files/TCA/inreddb.wpd
RICHARD LEE v. CITY OF LAVERGNE, et al. Court:TCA Attorneys: Gregory H. Oakley, Nashville, Tennessee, for the appellants, City of LaVergne and Howard Morris. Richard Lee, Murfreesboro, Tennessee, Pro Se. Judge: WALLACE First Paragraph: The cause was heard by the Chancery Court for Rutherford County, on a petition for Writ of Certiorari. The Chancellor remanded the case and ordered the City of LaVergne to provide plaintiff a hearing before the City Administrator. The City appealed. We find the appellee was an at will employee, and as such, has no property interest in his job. Therefore, a due process claim is inapplicable. Appellee relies upon the City of LaVergne Employee Manual. The Manual does not contain clear and binding language to create a contract of employment, and does not create any property rights in appellee. Therefore, the judgment of the Chancellor is reversed. http://www.tba.org/tba_files/TCA/leer.wpd
PACIFIC DESIGN VENTURES, INC., et al. v. BIG RIVER BREWERIES, INC., et al. Court:TCA Attorneys: Kenneth R. Jones, Jr., Nashville, Tennessee, for the appellants, Pacific Design Ventures, Inc., Randall A. Waters, Jack F. Smart, and Kevin L. McGhee. Robert E. Boston and W. Travis Parham, Nashville, Tennessee, for the appellees, Big River Breweries, Inc., 111 Broadway Partners, L.P., Leonard Kinsey & Associates, Ltd., Randy Hammock, and Tim P. Hennen. Judge: WALLACE First Paragraph: The Chancery Court of Davidson County granted summary judgment and dismissed appellants' suit. On appeal, the appellants argue the Chancellor erred in striking their response to appellees' statement of undisputed facts, amended complaint and affidavit supporting the amended complaint as being late-filed. We find the Chancellor did not abuse his discretion, and we also find summary judgment was appropriate. Therefore, we affirm. http://www.tba.org/tba_files/TCA/pacificdesignventures.wpd
KURT SERAPHINE v. AQUA BATH COMPANY, INC., et al. Court:TCA Attorneys: Steven A. Riley, Taylor A. Cates, Nashville, Tennessee, for the appellant, Kurt Seraphine. Brian A. Lapps, Jr., Jason D. Fisher, Nashville, Tennessee, for the appellees, Aqua Bath Company, Inc., George McAllister and Charles Dorris. Judge: COTTRELL First Paragraph: This is an appeal from the grant of Appellees' motion for summary judgment. Appellant, a former employee of Appellee company, brought various claims against the company, and the company's top executives. Against the company, Appellant sought damages and specific performance based on an alleged breach of a stock option agreement and damages for breach of the implied duty of good faith and fair dealing. Against the individual defendants, Appellant sued on claims of statutory and common law inducement to breach. Appellees counterclaimed for a declaratory judgment that Appellant had no option to purchase shares in the company because the option expired when his employment terminated. Summary judgment was granted on Appellees' declaratory judgment claim and Appellant's claims were dismissed. We reverse the trial court's holding that the stock option expired with termination of employment, but find Appellant has not demonstrated a breach of the stock option agreement or his right to any remedy thereunder. We affirm the trial court's grant of summary judgment on the breach of duty of good faith and intentional interference claims. http://www.tba.org/tba_files/TCA/seraphinek.wpd
ROBERT JACKSON STEPHENSON v. MARY FRANCES STEPHENSON Court:TCA Attorneys: L. L. Harrell, Jr., Trenton, TN, for Appellant John Van den Bosch, Jr., Jackson, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal involves a will contest. The trial court found the testator to be competent at the time the will was executed and held that the will was the "complete, whole, true and valid Last Will and Testament" of the testator. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/stephrj.wpd
STATE OF TENNESSEE v. BOYD L. JONES, III Court:TCCA Attorneys: Jeffery Jones, Memphis, Tennessee, for the appellant, Boyd L. Jones, III. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William L. Gibbons, District Attorney General; and Tom Hoover, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Boyd L. Jones, III, pled guilty to possession of marijuana. As part of his plea agreement, he expressly reserved with the consent of the trial court and the State the right to appeal three related certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). The certified questions of law stem from the trial court's denial of the Defendant's motion to suppress. The central issue in this appeal is whether law enforcement officers violated the Defendant's Fourth Amendment right to be free from unreasonable searches and seizures when they entered his residence without a search warrant and detained him until they obtained written consent to search from the lessee of the residence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/jonesbl.wpd
STATE OF TENNESSEE v. MICHAEL LEWIS Court:TCCA Attorneys: Gary F. Antrican, District Public Defender (at trial and on appeal); and Michael Lewis, Pro Se (at trial), for the appellant, Michael Lewis. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey Anne Brewer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Lauderdale County jury convicted the defendant, Michael Lewis, of reckless aggravated assault. On appeal, the defendant contends (1) the evidence was insufficient to support the conviction; (2) the trial court erred in conducting an ex parte hearing outside the presence of the defendant and his attorney; (3) the trial court erred in permitting a witness to testify to statements made by the co- defendant; (4) the trial court erred in refusing to admit into evidence a letter allegedly written by the victim; and (5) the trial court erred in permitting the defendant to represent himself. Upon reviewing the record and the applicable law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lewism.wpd
ISAAC MILHOLEN v. STATE OF TENNESSEE Court:TCCA Attorneys: Lloyd R. Tatum, Henderson, Tennessee, for the appellant, Isaac Milholen. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner, Isaac Milholen, was convicted in 1997 of rape of a child and incest and sentenced to twenty-three years and eight years, respectively. His convictions were affirmed on direct appeal. Subsequently, he filed a petition for post-conviction relief alleging ineffective assistance of counsel. The post-conviction court dismissed his petition because he had brought an ineffective assistance of counsel claim in his direct appeal, and he now appeals that dismissal. We affirm the order of the post-conviction court dismissing the petition. http://www.tba.org/tba_files/TCCA/milholen.wpd
STATE OF TENNESSEE v. ROBERT MILLER Court:TCCA Attorneys: George Morton Googe, District Public Defender (on appeal), and David H. Crichton, Assistant District Public Defender (on appeal and at sentencing), for the appellant, Roger Miller. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Robert Miller, who represented himself at trial, was convicted of vandalism over $500 and criminal trespass. After the trial, the defendant was appointed counsel. The trial court ordered concurrent sentences of two years and thirty days, respectively, with all but ten days suspended, to be served in community corrections. In this appeal of right, the defendant asserts (1) that he did not knowingly and voluntarily waive his right to counsel; (2) that the trial court erred by the omission of a jury instruction; and (3) that the evidence was insufficient. Because the defendant was denied the assistance of counsel at trial, the judgments of conviction are reversed and the causes are remanded for a new trial. http://www.tba.org/tba_files/TCCA/millerrt.wpd
College and University Security Information Act -- Criminal Sanctions Date: March 25, 2003 Opinion Number: 03-031 http://www.tba.org/tba_files/AG/2003/OP31.pdf

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