Opinion Flash

July 2, 2003
Volume 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):
00 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
09 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


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

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