Opinion FlashAugust 5, 2003Volume 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):
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 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 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! 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