May 14, 2003
Volume 9 Number 088
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
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||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
IN RE: AMENDMENTS TO RULE 43 AND RULE 8, RPC 1.15 RULES OF THE
SUPREME COURT OF TENNESSEE
WAYNE BAILIFF, et al. v. STATE OF TENNESSEE, et al.
Russell Willis, Nashville, Tennessee, for the appellants, Wayne and
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Mary M. Bers, Senior Counsel, for the appellee,
State of Tennessee.
In these consolidated appeals a wife appeals the order of the
Tennessee Claims Commission dismissing her claim for loss of
consortium because it was not brought as a part of her husband's
claim, and the husband and wife appeal the Davidson County Circuit
Court's denial of their motion to amend to add the wife's claim to the
husband's action against the State of Tennessee and other defendants.
We reverse the action of the Claims Commission and remand the wife's
claim to the Circuit Court for trial.
NICOLE MARIE LUSCH BUSS-FLINN v. JAMES MICHAEL FLINN
Johnny V. Dunaway, LaFollette, Tennessee, for the Appellant James
Philip R. Crye, Jr., Clinton, Tennessee, for the Appellee Nicole Marie
Nicole Marie Lusch Buss-Flinn ("Mother") filed a Complaint for Divorce
in the General Sessions Court for Campbell County. In the complaint,
Mother sought, inter alia, a divorce from James Michael Flinn
("Father") as well as primary residential custody of the parties'
minor daughter. After Mother and daughter moved to Anderson County
and Father moved to Roane County, Father filed a request to have the
case moved to Anderson County pursuant to Tenn. Code Ann. S 36-5-3004.
The Trial Court denied Father's request for a transfer. After a
trial on the merits, the Trial Court granted Mother a divorce based on
Father's inappropriate marital conduct and designated Mother as the
primary residential parent of the child. Father appeals, claiming the
Trial Court erred in not transferring the case to Anderson County, in
granting a divorce to Mother, and in not awarding him coequal
parenting time. We affirm.
NEIL M. FRIEDMAN v. LYNN W. BROWN
Thomas E. Cowan, Jr., Elizabethton, Tennessee, for Appellant.
Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General and Kimberly J. Dean, Deputy Attorney General,
Nashville, Tennessee, for Appellee.
Plaintiff sued Trial Judge for wrongful incarceration. Trial Court
held Judge was immune for actions taken against plaintiff in court.
On appeal, we affirm.
CITY OF KNOXVILLE v. LUMARI HARSHAW
Michael P. McGovern, Knoxville, Tennessee, for the Appellant, Lumari
Angela R. Bolton, Knoxville, Tennessee, for the Appellee, City of
While on patrol, Officer Gerald Thomas George ("the Officer") heard a
"thumping bass noise" coming from a vehicle "at least 100 yards" away.
The Officer stopped the vehicle and issued a citation for violation
of section 18-5 of the City of Knoxville noise ordinance ("Ordinance")
to the driver, Lumari Harshaw ("Defendant"). The Trial Court found
Defendant violated the Ordinance. Defendant appeals claiming the City
of Knoxville ("City") failed to prove an element of the charge,
specifically that the noise was "audible to a person of normal hearing
sensitivity more than fifty (50) feet from [the] vehicle." We affirm.
RICHARD HUMPHREY v. JEANETTA GAMMAGE, et al.
Robert L. Whitaker, Nashville, Tennessee, for the appellant, Richard
Gerald Wayne Davis, Nashville, Tennessee, for the appellees, Jeanetta
Gammage and Deborah Gammage.
This appeal arose after the trial court granted summary judgment for
Jeanetta Gammage and Deborah Gammage against Richard Humphrey in his
petition to establish paternity of Karenda Raines. Because the
petitioner could not establish any issues of material facts as grounds
to proceed with his petition, we affirm the judgment of the trial
J.C. BRADFORD & CO., LLC, et al. v. DOUGLAS O. KITCHEN
John A. Day and Todd McKee, Brentwood, Tennessee and A. Lee Parks and
David C. Ates, Atlanta, Georgia, for the appellant, Douglas Kitchen.
William L. Harbison and L. Webb Campbell, II, Nashville, Tennessee and
Robert J. Kriss and Bennett E. Kaplan, Chicago, Illinois, attorneys
for appellee, J. C. Bradford & Co., LLC.
Robert J. Walker and John C. Hayworth, Nashville, Tennessee, attorneys
for appellee, Jeffrey E. Powell.
James F. Sanders and Thomas H. Dundon, Nashville, Tennessee, attorneys
for appellee, James C. Bradford, Jr.
The principal issue in this case is whether the defendant, a member or
partner of J.C. Bradford, Inc., waived his right to the arbitration of
his claim for damages against the defendants allegedly resulting from
various machinations involving fraud and deceit and the violation of
Federal and State Securities Laws, by joining a plaintiff class in an
action for damages in the U.S. District Court which was voluntarily
dismissed after pending four months. The Chancellor held that the
defendant filed the District Court action with full knowledge of the
facts and thus made an election of remedies, thereby waiving his right
of arbitration. We disagree, and reverse the judgment granting an
injunction against arbitration.
DORSEY EUGENE MCGAHEE, et al. v. JAMES M. DUKES, et al.
Robin Ruben Flores, Chattanooga, Tennessee, for the appellants, Dorsey
Eugene McGahee and Gary Cross.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; and Pamela S. Lorch, for the appellees, James M.
Dukes, Warden of West Tennessee State Penitentiary, and the
Commissioner of the Tennessee Department of Correction.
Two state prisoners placed in administrative segregation petitioned
the Chancery Court of Davidson County for a writ of certiorari to
review the action of the prison disciplinary board. The court held
that the petition did not state a claim for relief because
administrative segregation is not an atypical or significant hardship
on the petitions in relation to the ordinary incidents of prison life.
MICHAEL TODD DRINNON v. STATE OF TENNESSEE
Wayne R. Stambaugh, Morristown, Tennessee, for the Appellant, Michael
Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; and C. Berkeley Bell, Jr., District
Michael Todd Drinnon appeals the dismissal of his second petition for
post-conviction relief and attacks his convictions for a variety of
reasons, mostly related to the claimed ineffectiveness of his trial
counsel. The post-conviction court dismissed the petition as raising
issues that had been previously determined and for failure to allege
or establish grounds for reopening his previous petition. We affirm.
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