Opinion Flash

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):
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
07 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


IN RE:  AMENDMENTS TO RULE 43 AND RULE 8, RPC 1.15 RULES OF THE
SUPREME COURT OF TENNESSEE

http://www.tba.org/tba_files/TSC_Rules/rule43form_ord.wpd
								
WAYNE BAILIFF, et al. v. STATE OF TENNESSEE, et al. Court:TCA Attorneys: Russell Willis, Nashville, Tennessee, for the appellants, Wayne and Edna Bailiff. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mary M. Bers, Senior Counsel, for the appellee, State of Tennessee. Judge: CANTRELL First Paragraph: 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. http://www.tba.org/tba_files/TCA/bailiffw.wpd
NICOLE MARIE LUSCH BUSS-FLINN v. JAMES MICHAEL FLINN Court:TCA Attorneys: Johnny V. Dunaway, LaFollette, Tennessee, for the Appellant James Michael Flinn. Philip R. Crye, Jr., Clinton, Tennessee, for the Appellee Nicole Marie Lusch Buss-Flinn. Judge: SWINEY First Paragraph: 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. http://www.tba.org/tba_files/TCA/flinnnm.wpd
NEIL M. FRIEDMAN v. LYNN W. BROWN Court:TCA Attorneys: 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. Judge: FRANKS First Paragraph: Plaintiff sued Trial Judge for wrongful incarceration. Trial Court held Judge was immune for actions taken against plaintiff in court. On appeal, we affirm. http://www.tba.org/tba_files/TCA/friedmann.wpd
CITY OF KNOXVILLE v. LUMARI HARSHAW Court:TCA Attorneys: Michael P. McGovern, Knoxville, Tennessee, for the Appellant, Lumari Harshaw. Angela R. Bolton, Knoxville, Tennessee, for the Appellee, City of Knoxville. Judge: SWINEY First Paragraph: 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. http://www.tba.org/tba_files/TCA/harshawl.wpd
RICHARD HUMPHREY v. JEANETTA GAMMAGE, et al. Court:TCA Attorneys: Robert L. Whitaker, Nashville, Tennessee, for the appellant, Richard Humphrey. Gerald Wayne Davis, Nashville, Tennessee, for the appellees, Jeanetta Gammage and Deborah Gammage. Judge: JOHNSON First Paragraph: 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 court. http://www.tba.org/tba_files/TCA/humphreyr.wpd
J.C. BRADFORD & CO., LLC, et al. v. DOUGLAS O. KITCHEN Court:TCA Attorneys: 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. Judge: CAIN First Paragraph: 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. http://www.tba.org/tba_files/TCA/jcbradford.wpd
DORSEY EUGENE MCGAHEE, et al. v. JAMES M. DUKES, et al. Court:TCA Attorneys: 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. Judge: CANTRELL First Paragraph: 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. We affirm. http://www.tba.org/tba_files/TCA/mcgaheede.wpd
MICHAEL TODD DRINNON v. STATE OF TENNESSEE Court:TCCA Attorneys: Wayne R. Stambaugh, Morristown, Tennessee, for the Appellant, Michael Todd Drinnon. Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney General; and C. Berkeley Bell, Jr., District Attorney General. Judge: WITT First Paragraph: 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. http://www.tba.org/tba_files/TCCA/drinnonmichaelt.wpd

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