Opinion Flash

July 31, 2003
Volume 9 — Number 137

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
07 New Opinion(s) from the Tennessee Court of Appeals
07 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

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.

Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


GLENN BASHAM dba GLENN BASHAM NURSERY v. HENRY TILLAART, ET AL.

Court:TCA

Attorneys:                          

Paul Cross, Monteagle, Tennessee, for the appellant, Glenn Basham dba
Glenn Basham Nursery

John C. Harrison, Chattanooga, Tennessee, for the appellees, Henry
Tillaart and Marlin Tillaart dba Dutchmaster Nurseries.

Judge: SUSANO

First Paragraph:

The plaintiff, Glenn Basham, doing business as Glenn Basham Nursery,
sued Henry Tillaart and Martin Tillaart ("the individual defendants"),
who are identified in the complaint as Ontario, Canada businessmen,
for monies due as a result of a commercial sale of nursery stock.  The
style of the complaint refers to the trade name of the individual
defendants as "Dutchmaster Nurseries."  Over six years later, the
plaintiff moved the trial court to substitute a Canadian corporation,
i.e., "Dutchmaster Nurseries, Ltd.," for the individual defendants. 
The individual defendants moved to dismiss the complaint for
"insufficiency of service of process."  They also claimed that the
plaintiff's cause of action was barred by the statute of limitation. 
The trial court denied the motion to amend.  It granted the motion to
dismiss the complaint.  The plaintiff appeals, arguing that the motion
to dismiss should have been denied and that he should have been
permitted to amend his complaint to name the correct defendant.  We
affirm.

http://www.tba.org/tba_files/TCA/bashamg.wpd

FLYNN'S LICK COMMUNITY CENTER & VOLUNTEER FIRE DEPARTMENT v.
BURLINGTON INSURANCE COMPANY

Court:TCA

Attorneys:                          

Richard M. Brooks, Carthage, Tennessee, and Michael E. Evans,
Nashville, Tennessee, for the appellant, Flynn's Lick Community Center
& Volunteer Fire Department.

John R. Hellinger and Raymond G. Prince, Nashville, Tennessee, for the
appellee, Burlington Insurance Company.

Judge: KIRBY

First Paragraph:

This is a claim under the Tennessee Consumer Protection Act.  In 1997,
the plaintiff community center purchased liability insurance from the
defendant insurance company for an annual Halloween event described as
a "haunted house and hay ride."  During the event, an accident
occurred on the hayride.  Later, three lawsuits were filed against the
community center by parties who were allegedly injured in the hayride
accident.   The community center filed a claim with the insurance
company.  The insurance company provided a defense under a reservation
of rights but disputed coverage.  The insurance company then filed a
declaratory judgment action in federal court on the issue of whether
the claim was covered under the policy.  While the federal suit was
pending, the insurance company paid to settle the three underlying
claims.  Thereafter, the federal suit was dismissed by stipulation of
the parties.  The community center filed the instant lawsuit under the
Tennessee Consumer Protection Act, Tennessee Code Annotated S
47-18-101 et seq., seeking about $20,000 in attorney's fees it
expended in defending the federal action.  It alleged that the
insurance company engaged in unfair and deceptive conduct by filing
the declaratory judgment action.  After a jury trial, the jury held in
favor of the insurance company.  The community center now appeals.  We
affirm the jury's verdict, finding that the trial court committed no
reversible error, and that the jury's verdict was supported by
material evidence in the record.

http://www.tba.org/tba_files/TCA/flynnslick.wpd

TINA MARIE HUDGENS STAFFORD GRAY v. GLEN ALLEN GRAY

Court:TCA

Attorneys:                          

David L. Goad, Murfreesboro, Tennessee, for the appellant, Tina Marie
Hudgens Stafford Gray.

John T. Blankenship, Murfreesboro, Tennessee, for the appellee Glen
Allen Gray.

Judge: CANTRELL

First Paragraph:

The trial court granted the parties a divorce, classified the
husband's auto salvage business as his separate property, and divided
the property the parties had acquired during their marriage.  On
appeal, the wife contends that the trial court erred by not
considering the auto salvage business to be marital property, and by
ordering a property division that was inequitable as to her.  We
affirm the trial court.

http://www.tba.org/tba_files/TCA/graytmhs.wpd

JANET RYAN HILMAN V. RANDOLPH HILMAN

Court:TCA

Attorneys:                          

James Harris, III, Nashville, Tennessee, for the appellant, Janet Ryan
Hilman.

Matthew F. Mayo, Nashville, Tennessee, for the appellee, Randolph
Hilman.

Judge: ASH

First Paragraph:

This appeal arises from the trial court's denial of a contempt
petition brought to enforce the provision in a marital dissolution
agreement regarding the father's obligation to pay one-half of child's
uncovered medical expenses. The trial court found the petitioning
mother failed to present sufficient evidence of which expenses were
medical and covered by the marital dissolution agreement and the
petitioning mother acted unilaterally in incurring these extraordinary
charges for treatment of the minor child. We affirm the trial court.

http://www.tba.org/tba_files/TCA/hilmanjanetr.wpd

NORMA JEAN PENDOLA, BEVERLY KAY STEWART, DORIS FAYE SAJER, AND WILLIAM
H. MILLIGAN, JR. V. SHIRLEY ANN BUTLER

Court:TCA

Attorneys:                          

Ricky L. Wood, Parsons, Tennessee, for appellants, Norma Jean Pendola,
Beverly Kay Stewart, Doris Fay Sajer, and William H. Milligan, Jr.

Tommy E. Doyle, Linden, Tennessee, for appellee, Shirley Ann Butler.

Judge: KIRBY

First Paragraph:

This is an undue influence and fraud case.  The father executed a will
leaving his personal and real property to one daughter, with the
remainder of his estate to be divided among all five of his children. 
The daughter moved from Chicago to Tennessee to care for the father. 
The father added the daughter's name to his checking account and
bought a mobile home in which he and the daughter lived.  The daughter
utilized money from the joint checking account for her personal
benefit.  Later, the father executed a power of attorney in the
daughter's favor.  The daughter then transferred one of the father's
certificates of deposit to herself.  When the father died, no funds
remained to be divided among the five siblings. The father's other
four children filed suit against the daughter, alleging undue
influence.  The trial court referred the case to a special master, who
found there was no confidential relationship prior to execution of the
power of attorney.  The special master found, however, that a
confidential relationship existed after the execution of the power of
attorney.  The trial court found that the daughter rebutted the
presumption of undue influence and invalidity of the transaction that
took place after execution of the power of attorney.  The trial court
then concurred in the special master's findings.  The plaintiffs
appeal. We affirm as to the transactions prior to execution of the
power of attorney.  We reverse as to the transaction after execution
of the power of attorney, concluding that the presumption of the
invalidity of that transaction was not rebutted by clear and
convincing evidence of the fairness of the transaction.

http://www.tba.org/tba_files/TCA/pendolanj.wpd

BOBBY WAYNE RAINS, ET AL. v. BEND OF THE RIVER, ET AL.

Court:TCA

Attorneys:                          

Richard W. Mattson, Nashville, Tennessee, for the appellant, Bend of
the River.

John E. Acuff, Cookeville, Tennessee, for the appellees, Bobby Wayne
Rains, Sandy Gail Rains, John Rains, and Adriane Rains.

R. Douglas Hanson, Memphis, Tennessee, for the amicus curiae,
Tennessee Defense Lawyers Association.

Judge: KOCH

First Paragraph:

This appeal involves an eighteen year old who committed suicide with
his parents' .25 caliber handgun.  The parents filed suit in the
Circuit Court for Putnam County against the retailer who sold their
son ammunition for the handgun shortly before his death.  They later
amended the complaint to seek loss of consortium damages for
themselves and their son's surviving siblings.  The trial court denied
the retailer's motion for summary judgment regarding the wrongful
death claims, as well as the retailer's motion to dismiss the loss of
consortium claims.  Thereafter, the trial court granted the retailer
permission to seek a Tenn. R. App. P. 9 interlocutory appeal from its
refusal to dismiss the wrongful death and loss of consortium claims. 
We granted permission to appeal and have now determined that the trial
court erred by denying the retailer's Tenn. R. Civ. P. 56 and 12.02(6)
motions because, based on the undisputed facts, the suicide was not
reasonably foreseeable and was the independent, intervening cause of
the young man's death.

http://www.tba.org/tba_files/TCA/rainsbw.wpd

DANIEL SHERWOOD, ET AL. v. MICROSOFT CORPORATION, ET AL.
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

Leo Bearman, Jr., Memphis, Tennessee, James A. DeLanis, Richard H.
Stout, Nashville, Tennessee, for the appellants, Microsoft Corporation
and Does 1 through 100, inclusive.

C. Dewey Branstetter, Jr., James G. Stranch, III, George E. Barrett,
Edmund L. Carey, Nashville, Tennessee, for the appellees, Daniel
Sherwood, Roy Coggins and wife Sheila Coggins d/b/a Microfilm Services
and William Overton, Individually and on behalf of all others
similarly situated.

Judge: COTTRELL

First Paragraph:

In this appeal, Plaintiffs, purchasers of Microsoft software, sued
Microsoft alleging that the company violated the Tennessee Trade
Practices Act and the Tennessee Consumer Protection Act and claiming
that they paid inflated prices for software due to Microsoft's alleged
violations of Tennessee antitrust law.  Microsoft filed a motion to
dismiss arguing that Tennessee antitrust law applies to activities
that are predominantly intrastate in character and that Microsoft's
business is predominantly interstate.  Microsoft also argued that
indirect purchasers have no cause of action under the Tennessee Trade
Practices Act.  The trial court found that federal law does not
provide a remedy for indirect purchasers in antitrust cases and,
consequently, those purchasers must have a Tennessee state law remedy.
 The trial court denied the motion to dismiss the claims of the
indirect purchasers, but because direct purchasers have a federal law
remedy, dismissed the claims of the direct purchasers.  We affirm in
part, reverse in part, and hold: (1) indirect purchasers may bring an
action for damages under the Tennessee Trade Practices Act; (2) the
Tennessee Trade Practices Act applies to activity that has substantial
effects on commerce within the state, and Plaintiffs have made
sufficient allegations of such effects; and (3) the Tennessee Consumer
Protection Act does not apply to antitrust causes of action or
anticompetitive conduct.

http://www.tba.org/tba_files/TCA/sherwoodd_opn.wpd

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/sherwoodd_con.wpd

JAMES CLARK BLANTON, III v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

David A. Collins, Nashville, Tennessee, for the appellant, James Clark
Blanton, III.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General, Victor S. Johnson, District Attorney
General; and Jon Seaborg, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

A Davidson County grand jury indicted the petitioner, James Clark
Blanton, III, of two counts of especially aggravated robbery, two
counts of especially aggravated kidnapping, and one count of coercion
of a witness.  The petitioner pled guilty to two counts of especially
aggravated robbery with an agreement that he would serve two
concurrent sentences of fifteen years each at 100%.  The petitioner
filed a post-conviction petition alleging that he received ineffective
assistance of counsel.  The post-conviction court held an evidentiary
hearing to determine the merits of the petitioner's claim and
subsequently denied the petition in a written order.  The petitioner
now appeals that denial.  After reviewing the petitioner's claims and
the evidence presented at the post-conviction hearing, we find that
none of his allegations merit relief.

http://www.tba.org/tba_files/TCCA/blantonjames.wpd

STATE OF TENNESSEE v. HAROLD RUSSELL GREGORY

Court:TCCA

Attorneys:                          

David L. Raybin (at motion for new trial hearing and on appeal) and V.
Michael Fox (at trial), Nashville, Tennessee, for the appellant,
Harold Russell Gregory.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; and David Gregory Vorhaus, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON
 
First Paragraph:

The defendant, Harold Russell Gregory, was convicted in the Davidson
County Criminal Court of driving under the influence (DUI), second
offense, a Class A misdemeanor.  The trial court sentenced him to
eleven months, twenty-nine days to be served as forty-five days, day
for day, in the county jail and the remainder to be served on
probation.  In addition, the trial court suspended the defendant's
driving privileges for two years, ordered that he participate in an
alcohol evaluation and treatment program, and imposed a six hundred
dollar fine.  The defendant appeals, claiming (1) that the evidence is
insufficient to support his conviction; (2) that the trial court
should have granted his motion to suppress evidence that was obtained
pursuant to an illegal stop; (3) that his request for an attorney was
not an express refusal to take a breathalyzer test; and (4) that the
trial court erred by refusing to allow a defense witness to testify. 
We affirm the trial court's actions.

http://www.tba.org/tba_files/TCCA/gregoryharoldru.wpd

JAMES P. HYDE v. HOWARD CARLTON, WARDEN, and STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

James P. Hyde, pro se.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, James P. Hyde, appeals the trial court's denial of his
petition for writ of habeas corpus.  Because the petitioner has failed
to state a claim for habeas corpus relief, the state's motion is
granted and the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/hydejp.wpd

STATE OF TENNESSEE v. MIKEL U. PRIMM

Court:TCCA

Attorneys:                          

Didi Christie, Brownsville, Tennessee, for the appellant, Mikel U.
Primm.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; Dan Alsobrooks, District Attorney General;
and Kim Menke, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: SMITH

First Paragraph:

A Dickson County jury convicted the defendant, Mikel U. Primm, of
possession of drug paraphernalia and failure to appear.  The trial
court sentenced the defendant to serve eleven months and twenty-nine
days for his possession of drug paraphernalia conviction and two years
for failure to appear conviction, for which he was classified as a
Range II multiple offender.  The trial court ordered the defendant to
serve these sentences concurrently.  The defendant now brings this
direct appeal challenging his convictions and his sentence, alleging
that (1) the evidence introduced at trial is insufficient to support
his two convictions, (2) the trial court erroneously denied, within
the hearing of the prospective jurors, the defense motion for a
continuance, and (3) that the trial court improperly sentenced him by
failing to apply several relevant mitigating factors.  After a
thorough review of the record, we find that none of the defendant's
allegations merit relief and therefore affirm the judgments of the
trial court.

http://www.tba.org/tba_files/TCCA/primmmikel.wpd

STATE OF TENNESSEE v. JOHNNY D. ROBERTS

Court:TCCA

Attorneys:                          

Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher,
Assistant Public Defender (on appeal); and Laura Dykes, Deputy Public
Defender (at trial), for the appellant, Johnny D. Roberts.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Bret Thomas Gunn, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Johnny D. Roberts, was convicted by a Davidson County
Criminal Court jury of aggravated rape and aggravated sexual battery. 
The trial court merged the defendant's convictions into one conviction
for aggravated rape and sentenced him as a Range I, violent offender
to twenty- five years in the Department of Correction.  The defendant
appeals, claiming that (1) the evidence is insufficient to support his
convictions, (2) the trial court erroneously admitted into evidence a
tape recording and transcript of the victim's 9-1-1 telephone call to
the police, (3) the trial court erred by failing to declare a mistrial
after the prosecutor commented on the defendant's failure to testify,
and (4) the trial court erred by refusing to apply a mitigating factor
in sentencing him.  We affirm the judgment of conviction.

http://www.tba.org/tba_files/TCCA/robertsjohnnyd.wpd

STATE OF TENNESSEE v. STEVEN SHELTON

Court:TCCA

Attorneys:                          

Douglas L. Payne, Greeneville, Tennessee, for the appellant, Steven
Shelton.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; C. Berkeley Bell, District Attorney
General; and Cecil Mills, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Steven Shelton, was convicted by a jury in the Greene
County Criminal Court of theft of property valued $1000 or more but
less than $10,000, a Class D felony.  The trial court sentenced the
appellant as a Range I standard offender to two years six months
confinement in the Greene County Jail.  On appeal, the appellant
argues that the evidence was insufficient to support his conviction
and that the trial court erred in denying alternative sentencing. 
Upon review of the record and the parties' briefs, we affirm the
judgment of the trial court.  However, we remand to the trial court
for the correction of the judgment of conviction to reflect the fine
imposed by the jury.

http://www.tba.org/tba_files/TCCA/sheltons.wpd

VANCE E. SHELTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

J. Russell Pryor, Greeneville, Tennessee, for the Appellant, Vance E.
Shelton.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Thomas E. Williams, III, Assistant Attorney
General, for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Vance E. Shelton, appeals the dismissal of his petition
for post-conviction relief by the Greene County Criminal Court.  In
1996, Shelton was convicted of one count of rape of a child and one
court of aggravated sexual battery.  Shelton collaterally attacks
these convictions arguing that he received ineffective assistance of
counsel, which resulted in prejudice to his defense.  After review, we
conclude that Shelton was denied his right to the effective assistance
of counsel, as guaranteed by the Sixth Amendment, with respect to his
conviction for aggravated sexual battery.  With regard to his
conviction for rape of a child, we conclude no relief is warranted. 
Accordingly, Shelton's conviction and sentence for aggravated sexual
battery is vacated and remanded for a new trial.

http://www.tba.org/tba_files/TCCA/sheltonvancee.wpd

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi


HomeContact UsPageFinderWhat's NewHelp
© Copyright 2003 Tennessee Bar Association