Opinion Flash

August 5, 2003
Volume 9 — Number 140

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):
01 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
06 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


STATE OF TENNESSEE v. CHRISTOPHER M. FLAKE
WITH 2 (TWO) DISSENTING OPINIONS

Court:TSC

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Kim R. Helper, Assistant Attorney General; William
L. Gibbons, District Attorney General; Thomas D. Henderson and John W.
Campbell, Assistant District Attorneys General, for the appellant,
State of Tennessee.

Leslie I. Ballin, Memphis, Tennessee, and Steven E. Farese, Ashland,
Mississippi,  for the appellee, Christopher M. Flake.

Judge: DROWOTA

First Paragraph:

The defendant, Christopher Flake, was indicted by the Shelby County
Grand Jury on two counts of premeditated first degree murder for the
shooting deaths of Mike Fultz and Fred Bizot. The facts surrounding
the shootings were not contested at trial.  Instead, the defense
focused upon establishing the affirmative defense of insanity.  See
Tenn. Code Ann. S 39-11-501.  The jury rejected the insanity defense,
however, and found the defendant guilty on both counts of premeditated
first degree murder.  The defendant was sentenced to consecutive
sentences of life imprisonment without the possibility of parole.  The
trial court entered a judgment in accordance with the jury's verdict,
and the defendant appealed, asserting, among other things, that the
insanity defense had been established by clear and convincing evidence
and that the jury had erred in rejecting it.  The Court of Criminal
Appeals agreed with the defendant, modified the verdict to not guilty
by reason of insanity, and remanded the case to the trial court for
further proceedings in accordance with Tennessee Code Annotated
section 33-7-303.  The State filed an application for permission to
appeal arguing that the intermediate appellate court had erred by
reversing the jury's verdict.

http://www.tba.org/tba_files/TSC/flake_opn.wpd

DISSENTING OPINION #1
http://www.tba.org/tba_files/TSC/flake_dis.wpd

DISSENTING OPINION #2
http://www.tba.org/tba_files/TSC/flake2_dis.wpd

RONNIE E. ERWIN v. MOON PRODUCTS, INC.

Court:TCA

Attorneys:                          

Jay S. Bowen, Timothy L. Warnock, Amy C. Martin, Nashville, TN, for
Appellant

William T. Ramsey, Michael G. Mason, Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This is an appeal from a denial of an application to compel
arbitration.  For the following reasons, we affirm the court below.

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

THOMAS W. HARRISON, ET AL. v. EARL LAURSEN, ET AL.

Court:TCA

Attorneys:                          

Earl Laursen and Dolorita Laursen, Pulaski, Tennessee, Pro Se.

M. Andrew Hoover, Pulaski, Tennessee, for the appellees, Thomas W.
Harrison, Terry Harrison, and Brenda Kennamore.

Judge: KOCH

First Paragraph:

This is the fourth appeal regarding the sale of a 128-acre farm in
Giles County.  The sellers originally sued the buyers in the Chancery
Court for Giles County in 1991, alleging that the buyers had breached
the contract by defaulting on their payments.  The buyers
counterclaimed, asserting that the sellers had breached the contract
by failing to provide city water to the property and that the sellers
had committed fraud and violated the Tennessee Consumer Protection
Act.  On the first appeal, this court affirmed the trial court's
judgment rescinding the sale but remanded the case with directions to
address the question of damages.  The case was tried five more times
and was appealed twice.  In the sixth trial, a jury awarded the buyers
$32,444.42.  On this the fourth appeal, the buyers take issue with the
trial court's exclusion of evidence regarding the sellers' alleged
fraud, the jury's calculation of the increased value of the property,
and the trial court's refusal to award them prejudgment interest.  We
affirm the judgment.

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

JOSEPH NEIL NOLEN v. AMY JAY NOLEN 

Court:TCA

Attorneys:                          

Irene R. Haude, Nashville, Tennessee, for the appellant, Joseph Neil
Nolen.

Douglas Thompson Bates, III, Centerville, Tennessee, for the appellee,
Amy Jay Nolen and Third Party Custodian, Jeannie LaCasse.

Ronald Kilgore, Nashville, Tennessee for appellee, LaDonna Miller,
Third Party Custodian.

Judge: ASH

First Paragraph:

This appeal arises from the trial court's decision to award custody of
the parties' minor children to third party custodians.  After finding
each parent unfit, the chancellor awarded custody of the daughter to
the mother's aunt and the son was awarded to an unrelated third party.
 Parenting time was established every first and second weekend with
the third party custodians having the third weekend.  Holiday
parenting time was also included.  Most importantly the siblings were
reunited during these times with their parents.  Both parties were
ordered to split the child support obligation owed to the third
parties. The father filed this appeal. We affirm.

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

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

Court:TCA

Attorneys:                          

Richard W. Mattson, Nashville, Tennessee, and Daniel H. Rader, III,
Cookeville, 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.

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

TIFFANY T. SENN (WILLIAMS) v. ROMANDO LADELL HAYNES

Court:TCA

Attorneys:                          

Sarah H. Cope, Murfreesboro, Tennessee, for the appellant, Tiffany T.
Senn (Williams).

Robert Todd Jackson and Patricia Campbell, Nashville, Tennessee, for
the appellee, Romando Ladell Haynes.

Judge: CAIN

First Paragraph:

Tiffany T. Senn (Williams) appeals the action of the Juvenile Court of
Rutherford County, changing the primary residential custody of her
minor child from Tiffany Senn to the biological father of the child,
Romando Haynes.  We affirm the action of the trial court.

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

DANIEL SHERWOOD, ET AL. v. MICROSOFT CORPORATION, ET AL.
CORRECTED 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.

CORRECTED OPINION
http://www.tba.org/tba_files/TCA/sherwoodd.wpd

STATE OF TENNESSEE v. DONALD WADE GOFF

Court:TCCA

Attorneys:                          

Julie A. Rice, Knoxville, Tennessee (on appeal); Martha J. Yoakum,
District Public Defender (at trial); and Charles Herman, Assistant
District Public Defender (at trial), for the Appellant, Donald Wade
Goff.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; William Paul Phillips, District Attorney
General; and John A. Steakley, Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant appeals from jury-trial convictions for multiple counts
of rape of a child, rape, incest,  contributing to the delinquency of
a minor, and attempted rape.  In this appeal, the defendant challenges
the sufficiency of the evidence related to his rape and contributing
to the delinquency of  a minor convictions, alleges that the trial
court committed reversible error in failing to sever the charged
offenses, and complains that his effective 80-year sentence is
excessive.  Based on our review, we find insufficient evidence to
support the rape convictions, dismiss those convictions without
prejudice to further prosecution on lesser-included offenses, reverse
one conviction of contributing to the delinquency of a minor and
dismiss that charge, and remand for modification of the defendant=s
sentences on the remaining convictions.

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

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