Opinion Flash

April 25, 2003
Volume 9 — Number 075

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

SUPRENA BROOKS, et al. v. MICHAEL BROOKS

Court:TCA

Attorneys: 

Suprena Brooks, Pro Se

Michael K. Brooks, Pro Se                         

Judge: CRAWFORD

First Paragraph:

This is a pro se proceeding apparently seeking property allegedly due
plaintiffs pursuant to a decedent's will which has not been probated
and to award plaintiffs a money judgment against the executor named in
the will.  After a nonjury trial, the trial court granted judgment to
defendant.  Plaintiffs have appealed.  We affirm.

http://www.tba.org/tba_files/TCA/brookssuprena.wpd
								
								
THE TOWN OF COLLIERVILLE, TENNESSEE v. NORFOLK SOUTHERN RAILWAY
COMPANY, JANE PORTER FEILD and JOEL H. PORTER, and SCHILLING, INC.

Court:TCA

Attorneys:

Ralph T. Gibson, Memphis, Tennessee, for appellant, Norfolk Southern
Railway Company.

Robert A. McLean and Georgia A. Robinette, Memphis, Tennessee, for
appellee, Town of Collierville, Tennessee.

John McQuiston, II, Memphis, Tennessee, for appellee, Schilling, Inc.

Joel H. Porter, Memphis, Tennessee, for appellees, Joel H. Porter and
Jane Porter Feild.

Judge: LILLARD

First Paragraph:

This is a condemnation case on appeal for the second time.  At three
places at which roads were to cross over an existing railroad track,
the town filed a petition to condemn property in which the railroad
owned a right-of-way, in order to build railroad crossings.  The trial
court initially found that the railroad could not challenge the town's
right to take the property and granted the town's motion for the writs
of possession.  The railroad appealed for the first time.  In the
first appeal, this Court reversed the trial court and found that the
railroad was entitled to a hearing to determine whether the railroad
crossings would materially impair or interfere with the railroad's
prior use of the rights-of-way.  On remand, the trial court found that
they would not, thus concluding that the town had the right to condemn
the property.  The trial court then considered the damages for the
condemnation.  The railroad sought incidental damages related to its
depreciation costs, as well as costs for its increased exposure to
liability because of the additional crossings.  The trial court
determined that the railroad, as a matter of law, could not recover
depreciation costs, and also held that the railroad failed to produce
proof to support an award of damages for increased liability exposure.
 The railroad appeals.  We affirm, finding that the railroad can
recover neither depreciation costs nor damages for increased exposure
to liability from the additional crossings.

http://www.tba.org/tba_files/TCA/collierville.wpd
								
								
STATE OF TENNESSEE ex rel. THE COMMISSIONER OF THE DEPARTMENT OF
TRANSPORTATION v. TOMMIE GOODWIN and ARLENE GOODWIN

Court:TCA

Attorneys:

Paul G. Summers, Attorney General & Reporter, and George G. Boyte,
Jr., Assistant Attorney General, Jackson, Tennessee, for the
appellant, State of Tennessee ex rel. Commissioner of the Department
of Transportation.

Richard Gossum, Trenton, Tennessee, for the appellees, Tommie Goodwin
and Arlene Goodwin.                       

Judge: LILLARD

First Paragraph:

This is a condemnation case.  The State filed a petition to condemn a
portion of property owned by the defendants for the improvement of a
highway.  The defendants did not challenge the State's right to
condemn the property, but they asserted that the amount proffered by
the State as payment for the property was inadequate.  After a jury
trial, the jury returned a verdict of $13,500.  The defendants moved
for a new trial or, in the alternative, for an additur.  The trial
court concluded that the jury's verdict did not adequately compensate
the defendants for either their financial loss or the loss to their
business resulting from the condemnation, so it granted the motion for
an additur, suggesting an additur of $12,000.  The State accepted the
additur under protest and now appeals.  We affirm, finding that the
trial court's suggested additur did not constitute an impermissible
award for lost profits.

http://www.tba.org/tba_files/TCA/goodwint.wpd
								
								
GINGER SWEETON v. ANGELA ORANGE, et al.

Court:TCA

Attorneys:

Marshall A. Raines, Jr., Jasper, For Appellant, Ginger Sweeton

James S. Stephens, Tracy City, For Appellees, Angela Orange, James
Orange, and David Caldwell                         

Judge: CRAWFORD

First Paragraph:

This is a dispute between two adjoining property owners concerning the
location of the common boundary between their respective properties. 
A survey of the line indicates that the land in question is property
of Appellees.  Appellant contends that, due to actions taken by her
predecessors in interest, she has claim to the property by virtue of
adverse possession.  The trial court found that the land in question,
with the exception of certain buildings used for storage, is the
property of Appellees.  Appellant appeals.  We affirm.

http://www.tba.org/tba_files/TCA/sweetonginger.wpd
								
								
SHARON TAYLOR v. DOUGLAS BUTLER and CITY AUTO SALES

Court:TCA

Attorneys:

Sam F. Cole, Jr., Memphis, Tennessee, for the appellant, Sharon
Taylor.

Joseph D. Barton, Millington, Tennessee, for the appellees, Douglas
Butler and City Auto Sales.                         

Judge: LILLARD

First Paragraph:

This case involves the enforceability of an arbitration agreement.  In
June 1998, the plaintiff signed a contract to buy a used car from the
defendant car dealership for approximately $10,000.  In the sales
contract, the plaintiff agreed to pay the dealership approximately
$1,000 as a down payment on the car and finance the remainder.  The
sales contract included an arbitration provision.  The plaintiff gave
the dealership the down payment, and the dealership gave the plaintiff
 possession of the car pending final approval of the financing. 
Approximately a week later, the car dealership told the plaintiff that
her application for financing had been rejected, and asked her to
return the car.  The plaintiff refused.  The dealership then
repossessed the car and kept the down payment and other personal
property that the plaintiff had in the car.  The plaintiff sued the
dealership, claiming fraud, violation of the Tennessee Consumer
Protection Act, and conversion.  The dealership filed a motion to
dismiss, arguing that the plaintiff's claims were subject to the
arbitration provision in the sales contract.  The trial court
dismissed the plaintiff's lawsuit, and the plaintiff now appeals.  We
reverse, finding that the plaintiff stated a claim for fraudulent
inducement of the contract, which is not subject to the arbitration
provision.

http://www.tba.org/tba_files/TCA/taylors.wpd
								
								
MARGARET WIGHTMAN v. TRUMAN D. CLOUSE and wife, BETTY SUE CLOUSE, and
DOUGLAS CLOUSE

Court:TCA

OPINION ON PETITION FOR REHEARING

http://www.tba.org/tba_files/TCA/wightman1.wpd
								
								
Constitutionality of Imposing the Tennessee Sales Tax on Newspaper
Sales

Date: April 16, 2003

Opinion Number: 03-045                          

http://www.tba.org/tba_files/AG/2003/OP45.pdf
								
								
Charter Schools

Date: April 16, 2003

Opinion Number: 03-046                         

http://www.tba.org/tba_files/AG/2003/OP46.pdf
								
								
Mandatory testing to determine blood alcohol level

Date: April 22, 2003

Opinion Number: 03-047                         

http://www.tba.org/tba_files/AG/2003/OP47.pdf
								
								
Liability of Driver to Passengers Not Wearing Safety Belts

Date: April 22, 2003

Opinion Number: 03-048                        

http://www.tba.org/tba_files/AG/2003/OP48.pdf
								
								
Reverse Raffle and Auction as Lottery

Date: April 22, 2003

Opinion Number: 03-049                         

http://www.tba.org/tba_files/AG/2003/OP49.pdf
								
								
Bail Bond Secured by Real Estate

Date: April 22, 2003

Opinion Number: 03-050                         

http://www.tba.org/tba_files/AG/2003/OP50.pdf
								
								
Powers of the Watauga River Regional Water Authority

Date: April 23, 2003

Opinion Number: 03-051                         

http://www.tba.org/tba_files/AG/2003/OP51.pdf
								
								
Constitutionality of H.B. 652

Date: April 24, 2003

Opinion Number: 03-052                         

http://www.tba.org/tba_files/AG/2003/OP52.pdf

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