Opinion FlashJuly 2, 2003Volume 9 — Number 117 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel SHIRLEY K. HENSLEY v. ENGLAND/CORSAIR UPHOLSTERY MANUFACTURING COMPANY, INC., et al. Court:TSC - Workers Comp Panel Attorneys: J. Steven Collins, of Knoxville, Tennessee, for Appellants, England/Corsair Upholstery Manufacturing Company, Inc., and Lumbermen's Underwriting Alliance. Edwin A. Anderson, of Knoxville, Tennessee, for Appellee, Shirley K. Hensley. Judge: THAYER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann.S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded 50 percent permanent partial disability to the body as a whole. The employer has appealed insisting the expert medical testimony is not sufficient to support the award. The judgment is affirmed. http://www.tba.org/tba_files/TSC_WCP/hensleys.wpd DLLP, LLC, dba BIG NINE PRODUCTIONS v. INTERNATIONAL CREATIVE MANAGEMENT, INC., aka ICM, et al. Court:TCA Attorneys: Robert E. Cooper, Jr., Samuel L. Felker, and Andrea T. McKellar, Nashville, Tennessee, attorneys for appellants, International Creative Management, Inc., aka ICM, and Rock on Tours, Inc. H. Wayne Grant, Harry Cash, and Steven W. Grant, Chattanooga, Tennessee, attorneys for appellee, DLLP, LLC, dba Big Nine Productions. Judge: SUSANO First Paragraph: DLLP, LLC, dba Big Nine Productions ("DLLP") sued International Creative Management, Inc., aka ICM ("ICM") and Rock On Tours, Inc. (collectively "the defendants") for damages and other relief arising out of the alleged failure of the defendants to follow through with a concert featuring the defendants' principal, a musical group known as the Moody Blues. The defendants moved the court to compel arbitration under an alleged agreement providing for arbitration in New York City. The trial court ordered arbitration, but decreed that it would be conducted in Chattanooga. The defendants appeal, arguing that the trial court was without authority to order arbitration other than in New York City. By way of a separate issue, the appellee, DLLP, contends that the trial court ordered "non-binding" arbitration and that it erred in doing so in the absence of the parties' consent, said consent being required by Tenn. Sup. Ct. R. 31, Sec. 3(d). It seeks an outright reversal of the court's order. We hold that the trial court ordered "binding" arbitration; that such arbitration was required under the terms of the parties' agreement; and that the trial court erred in failing to order that the arbitration would be conducted in New York City. Accordingly, we modify the trial court's order. As modified, the order is affirmed. http://www.tba.org/tba_files/TCA/bignine.wpd WILLIS EDWARDS, et al. v. KATHERINE L. HECKMANN, et al.
Court:TCA
Attorneys:
Timothy P. Webb, Jacksboro, Tennessee, for the Appellants Willis
Edwards and Wendell Edwards.
Lee Dan Stone, III, Tazewell, Tennessee, for the Appellees Katherine
L. Heckmann and Gregory Heckmann.
Judge: SWINEY
First Paragraph:
This appeal involves a boundary line dispute between Willis Edwards
and Wendall Edwards ("Plaintiffs") and Katherine and Gregory Heckmann
("Defendants"). Plaintiffs and Defendants presented proof from their
respective surveyors regarding the appropriate boundary line for the
disputed area of land. The surveyors testified in detail regarding
the natural and artificial landmarks, etc., they relied upon in
arriving at their differing conclusions. The Trial Court concluded
Defendants' surveyor was accurate and entered judgment accordingly.
Plaintiffs appeal. We affirm.
http://www.tba.org/tba_files/TCA/edwardsw.wpd
RONNIE A. JONES, et al. v. GEORGE STOKELY, et al.
Court:TCA
Attorneys:
William McMahan Leibrock, Newport, Tennessee, for the appellants,
Ronnie A. Jones and Vonda H. Jones.
Thomas V. Testerman, Newport, Tennessee, for the appellees, George
Stokely and Sheila Y. Stokely.
Judge: SUSANO
First Paragraph:
This is a boundary line dispute. The plaintiffs, Ronnie A. Jones and
his wife, Vonda H. Jones ("the Jones"), appeal the trial court's
finding that the property line they share with their neighbors, the
defendants George Stokely and his wife, Sheila Y. Stokely ("the
Stokelys"), is as alleged in the Stokelys' counterclaim. The Jones
contend: (1) that the evidence preponderates against the trial court's
determination of the location of the boundary line; (2) that the trial
court committed reversible error when it admitted into evidence, as
ancient records, certain maps and documents; and (3) that the trial
court abused its discretion when it refused to grant the Jones a new
trial based upon "newly discovered" evidence. We affirm.
http://www.tba.org/tba_files/TCA/jonesra.wpd
KHB HOLDINGS, INC. v. MARK A. DUNCAN, et al.
Court:TCA
Attorneys:
Raymond E. Lacy and Cynthia Lacy Wagner, Knoxville, Tennessee, for the
appellants, KHB Holdings, Inc. and Kenneth H. Boyd.
John T. Sholly, Knoxville, Tennessee, for the appellees, Mark A.
Duncan and Tina L. Duncan.
Judge: SUSANO
First Paragraph:
KHB Holdings, Inc. ("KHB") sued Mark A. Duncan and Tina L. Duncan
("the Duncans"), alleging that the Duncans had terminated KHB's
contract to construct a residence for them. The trial court found
that KHB's corporate charter had been revoked two years prior to the
date on which KHB ostensibly contracted with the Duncans; denied KHB's
motion to substitute its sole shareholder, Kenneth H. Boyd ("Boyd"),
for the corporation; and held that KHB had failed to establish it was
entitled to recover based upon a theory of quantum meruit. We affirm.
http://www.tba.org/tba_files/TCA/khb.wpd
PRUDENTIAL BOTTS & ASSOCIATES REALTORS, INC. v. R & E PROPERTIES, LLC, et al. Court:TCA Attorneys: Timothy R. Simonds, Rossville, Georgia, and Damon J. Lee, Cleveland, Tennessee, for the Appellants, R & E Properties, LLC, Paula Ellis, and James Runion James F. Logan, Jr., and James S. Thompson, Cleveland, Tennessee, for the Appellee, Prudential Botts & Associates Realtors, Inc. Judge: GODDARD First Paragraph: In this case Prudential Botts & Associates Realtors, Inc., a real estate agency, sues R & E Properties, LLC, and one of its principals, Paula Ellis, and her father, James Runion, who advised and exerted influence over his daughter in connection with the business of R & E. The suit alleges that the Defendants violated the Tennessee Consumer Protection Act, T.C.A. Title 47, Chapter 17, resulting in damages to Prudential because a real estate transaction did not close as a result of misstatements made by the individual Defendants, thereby causing Prudential to lose a commission it otherwise would have received. After a plenary trial the Chancellor found in favor of the Plaintiff and awarded it $147,000 in compensatory damages; $97,000 in attorney fees; and $45,000 in pre-judgment interest. We reverse and dismiss. http://www.tba.org/tba_files/TCA/prudent.wpd CAROLE J. TAYLOR, et al. v. ANDREA B. SMITH, et al. Court:TCA Attorneys: J. Taylor Walker, Chattanooga, Tennessee, for the appellants, Carole J. Taylor and George Taylor. Daniel J. Ripper, Chattanooga, Tennessee, for the appellee, Allstate Insurance Company. Judge: SUSANO First Paragraph: This is a personal injury action that arises out of a two-vehicle accident. Carole J. Taylor and her husband, George Taylor, sued the driver and owner of the uninsured vehicle that hit Mrs. Taylor's vehicle in the rear. They also caused process to be served on their uninsured motorist carrier. The jury returned a verdict in favor of Mrs. Taylor for $10,000. It declined to award Mr. Taylor any damages on his loss of consortium claim. The plaintiffs appeal, asserting that the jury's verdicts are not supported by material evidence; that the trial court gave an incomplete jury charge regarding aggravation of a pre-existing condition; and that the trial court erred in failing to grant a new trial. We hold that the jury's verdicts are not supported by material evidence. We vacate the trial court's judgment and remand for a new trial. http://www.tba.org/tba_files/TCA/taylorcj.wpd ANN UTTER (FORMERLY MOONEYHAN), EXECUTRIX OF THE ESTATE OF JERRY A.
MOONEYHAN, DECEASED v. HOWELL H. SHERROD, JR.
Court:TCA
Attorneys:
Thomas C. Jessee, Johnson City, Tennessee, for the Appellant, Howell
H. Sherrod, Jr.
Robert D. Arnold, Johnson City, Tennessee, for the Appellee, Ann Utter
(formerly Mooneyhan), Executrix of the Estate of Jerry A. Mooneyhan,
deceased.
Judge: SWINEY
First Paragraph:
Howell H. Sherrod, Jr. ("Defendant") and Jerry A. Mooneyhan ("Dr.
Mooneyhan") were partners. Defendant sued Dr. Mooneyhan regarding one
of their partnership projects, Quality Dental Products. Dr. Mooneyhan
died during the pendency of that matter. That suit resulted in a jury
verdict for Dr. Mooneyhan that was affirmed on appeal. After the
Quality Dental Products suit, Defendant withheld Dr. Mooneyhan's
portion of the rents from another partnership property, the Bristol
building. Ann Utter (formerly Mooneyhan) as Executrix of the Estate
of Jerry A. Mooneyhan, deceased ("Plaintiff"), sued Defendant in
chancery court seeking partition of the Bristol building and an
accounting as to another partnership business, World Tech Fibers.
Defendant claimed the chancery court lacked jurisdiction because he
previously had filed a claim against the estate in probate court,
which, Defendant argued, caused jurisdiction to be vested solely in
the probate court. The Trial Court determined it had jurisdiction
over the partition action and issues relating only to the Bristol
building and World Tech Fibers. The Trial Court ordered and then
confirmed partition by sale, awarded Plaintiff a judgment for certain
sums related to the Bristol building and World Tech Fibers, and
awarded Defendant a winding up fee as the surviving partner.
Defendant and Plaintiff each appeal. We affirm in part, reverse in
part, and remand.
http://www.tba.org/tba_files/TCA/uttera.wpd
SUSAN KLAMON WHITON (LEEDOM) v. ALAN LOUIS WHITON Court:TCA Attorneys: Sarah Yarber Sheppeard and Jason H. Long, Knoxville, Tennessee, for the Appellant, Alan L. Whiton Dale Alan Everett, Knoxville, Tennessee, for the Appellee, Susan K. Whiton (Leedom) Paul G. Summers, Attorney General & Reporter, and Kim Beals, Assistant Attorney General, Office of the Attorney General, Nashville, Tennessee, for the Intervening Petitioner, State of Tennessee Judge: GODDARD First Paragraph: Opinion on Remand from the Supreme Court. http://www.tba.org/tba_files/TCA/whitons.wpd JOHANN ROSHE WOLMARANS v. LIFESTYLE FURNISHINGS, a/k/a/UNIVERSAL FURNITURE LIMITED, INC. Court:TCA Attorneys: Johann Roshe Wolmarans, Appellant, Pro Se Joseph J. Doherty, Morristown, Tennessee, for the Appellee, Lifestyle Furnishings, a/k/a Universal Furniture Limited, Inc. Judge: GODDARD First Paragraph: Johann Roshe Wolmarans sues Lifestyle Furnishings, a/k/a Universal Furniture Limited, Inc., for an injury he received on its premises. The complaint as amended seeks damages under the theory of premises liability and also under the Worker's Compensation Statute. The Trial Court found that the Plaintiff was an independent contractor and dismissed his worker's compensation claim. Thereafter, a jury trial was held as to the premises liability claims and the jury found that the injury received by the Plaintiff was due entirely to his own fault. The Plaintiff appeals, raising a host of issues which we find are without merit and affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/wolmar.wpd STATE OF TENNESSEE v. JOE A. GALLAHER Court:TCCA Attorneys: J. Thomas Marshall, Jr., District Public Defender, for the appellant, Joe A. Gallaher. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; James N. Ramsey, District Attorney General; Janice G. Hicks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Joe A. Gallaher, was convicted by an Anderson County Criminal Court jury of first degree felony murder. Upon finding that the defendant knowingly committed, solicited, directed, or aided in the murder while having a substantial role in attempting to commit robbery, the jury sentenced the defendant to life without parole. See Tenn. Code Ann. S 39-13-204(i)(7). The defendant appeals, claiming that (1) his confession should have been suppressed, (2) photographs of the victim before and after his death should have been excluded from the evidence, (3) a surveillance videotape of the offense and a transcript of the recording should have been excluded, (4) the jury should have been instructed on the offense of facilitation of first degree murder, (5) the jury should not have been instructed that lesser included offenses should only be considered if it found the defendant not guilty of first degree murder, (6) the jury should not have been instructed that a participant in a robbery is guilty of felony murder if a death ensues, and (7) the evidence is insufficient to prove the aggravating circumstance. We affirm the conviction. http://www.tba.org/tba_files/TCCA/gallaherj.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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