Opinion FlashJuly 31, 2003Volume 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):
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 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! 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