Opinion Flash

August 25, 2003
Volume 9 — Number 154

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
08 New Opinion(s) from the Tennessee Court of Appeals
04 New Opinion(s) from the Tennessee Court of Criminal Appeals
05 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


BRINDA J. HILL v. ARCADE MARKETING PRINTING, INC.

Court:TSC - Workers Comp Panel

Attorneys:                          

John W. McClarty, of Chattanooga, Tennessee, for the appellant, Brinda
J. Hill.

H. Austin Pedigo, of Chattanooga, Tennessee, for the appellant, Arcade
Marketing, Inc.

Judge: BYERS

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
plaintiff appeals the trial court's decision resolving all issues in
favor of the defendant and dismissing the plaintiff's complaint,
finding specifically: that the plaintiff failed to give proper,
statutorily required notice of her alleged injuries; that the
plaintiff's alleged injuries were not causally related to her job with
the defendant company; and that the plaintiff was estopped from
pursuing workers' compensation benefits for her alleged injuries.  We
affirm the judgment of the Chancery Court.

http://www.tba.org/tba_files/TSC_WCP/hillb.wpd

EDWIN BOOTH v. FRED'S, INC.
WITH DISSENTING OPINION

Court:TCA

Attorneys:                          

Charles W. Hill, Memphis, For Appellant, Fred's, Inc.

Stephen W. Vescovo, Timothy R. Johnson, Memphis, For Appellee, Edwin
Boothe

Judge: CRAWFORD

First Paragraph:

Defendant-employer terminated plaintiff-employee for cause based on
plaintiff's negligent performance of executive duties. 
Plaintiff-employee sued employer for benefits due under employment
contract and certain pension plans.  Issues at non-jury trial included
whether termination was for cause and the effective date of
termination.  The trial court awarded plaintiff damages pursuant to
the employment contract finding, in part, that employer failed to
comply with employment contract provision requiring written notice of
termination at least 90 days prior to termination for cause.  Trial
court also awarded plaintiff benefits under two stock option plans. 
Defendant employer appeals.  We affirm in part and reverse in part.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCA/boothe_dis.wpd

DONOVAN K. DAVIS v. RAY MAPLES, TENNESSEE BOARD OF PROBATION AND
PAROLES

Court:TCA

Attorneys:                          

Donovan K. Davis, Henning Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Shay B. Winebarger, Assistant Attorney General, for
the appellee, Ray Maples, Tennessee Board of Probation and Parole.

Judge: COTTRELL

First Paragraph:

An inmate brought this action to seek judicial review of the Board of
Paroles decision to deny him parole.  Because a prisoner has no
liberty interest in early release, we affirm the dismissal of the due
process claims brought herein.  We affirm dismissal of that portion of
the petition that alleges that the denial of parole was arbitrary and
capricious, but specifically hold that Mr. Davis may pursue
administrative appeal of that denial.  We reverse dismissal of the
claim that the Board's decision to defer Mr. Davis's next meeting with
the Board for eleven years is not arbitrary and capricious, and remand
that claim for further proceedings.

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

IN RE: HUNTER EDEN, A Minor Child, SOMMER EASTMAN v. DAVID EDEN

Court:TCA

Attorneys:                          

J. Todd Faulkner, Nashville, Tennessee, for the appellant, Sommer
Eastman.

Mark T. Smith, Gallatin, Tennessee, for the appellee, David Eden.

Judge: ASH

First Paragraph:

This appeal arises from the trial court's decision to remove custody
of the minor child from the mother and place him with the father.  The
trial court considered testimony regarding the stability of the
parents as well as the medical condition of the mother.  The court
modified the custody arrangement and ordered the mother to pay child
support.  The mother filed this appeal.  We affirm.

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

MEDTRONIC, INC., ET AL. v. NuVASIVE, INC., ET AL.

Court:TCA

Attorneys:                          

Glen G. Reid, Jr., Memphis, For Appellants, Nuvasive, Inc., Rufus L.
Bennett, Keith Valentine and Pat Miles

William Z. Pentelovitch and Mary R. Vasaly, Minneapolis, Minnesota;
Sam B. Blair, Jr., Memphis, For Appellees, Medtronic, Inc. and
Medtronic Sofamor Danek, Inc.

Judge: CRAWFORD

First Paragraph:

This is an appeal from a Final Order enjoining Appellant from
indemnifying its employees in their lawsuit against Appellees. 
Appellant's employees were previously employed by Appellee.  Appellee
and Appellant are competing corporations who, prior to this lawsuit,
entered into a Settlement Agreement with a forum selection clause
forbidding Appellant from suing Appellee outside Tennessee for an
eighteen month period.  In a lawsuit instigated in California by
Appellees' former employees, Appellant agreed to fund the litigation
and to indemnify those employees against any attorney fees incurred by
the employees.  Appellees' suit seeks to enjoin Appellants from
further funding of the employees' action.  The trial court granted the
injunction and Appellants appeal.  We affirm.

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

SDS & ASSOCIATES, INC. v. BUILDING PLASTICS, INC.

Court:TCA

Attorneys:                          

Daniel F. B. Peel, Charles M. Weirich, Jr., Memphis, For Appellant,
SDS & Associates, Inc.

Michael G. McLaren, Michael W. Higginbotham, Memphis, For Appellee
Building Plastics, Inc.

Judge: CRAWFORD

First Paragraph:

This appeal involves breach of contract action by appellant
corporation which provided telecommunication services to appellee
corporation.  Appellee corporation filed a counter-claim for breach of
a separate contract between the parties whereby appellant was to
provide freight auditing services to appellee.  The trial court
rendered judgment for appellant on the first contract in an amount
less than that sued for and rendered judgment for the appellee on the
counter-claim.  Appellant appeals.  We affirm.

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

JAMES J. TATE, SR. v. GLENDA BINGHAM TATE

Court:TCA

Attorneys:                          

Christine Brasher, Springfield, Tennessee, for the appellant, Glenda
Bingham Tate.

Grayson Smith Cannon, Goodlettsville, Tennessee, for the appellee,
James J. Tate, Sr.

Judge: FARMER

First Paragraph:

This appeal concerns the propriety of the trial court's property
division between divorcing parties.  As part of its division of the
marital property, the trial court ordered that Husband transfer a
home, which was his separate property, to Wife.  The trial court also
awarded Wife $4,500.00 as her interest in a Mercedes automobile which
the parties purchased for $15,000.00.  We affirm in part, reverse in
part, and remand.

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

WATKINS, McGUGIN, McNEILLY & ROWAN, PLLC v. ADEDAMOLA O. ONI, M.D.

Court:TCA

Attorneys:                          

Michael V. Thompson, Nashville, Tennessee, for the appellant,
Adedamola O. Oni, M.D.

Mark J. Downton, Nashville, Tennessee, for the appellee, Watkins,
McGugin, McNeilly & Rowan, PLLC.

Judge: COTTRELL

First Paragraph:

Law firm brought suit in 2001 against former client to recover payment
for services.  The client argued that the law firm represented him on
several different matters, the oldest of which was beyond the six year
statute of limitations in Tenn. Code Ann. S 28-3-109 and therefore
recovery by the law firm was precluded.  After a bench trial, the
trial court found that the law firm had represented the client
continuously from 1991 to 1998 and that the six year statute of
limitations did not preclude recovery.  The trial court entered a
judgment against the client for the amount of attorney's fees owed
plus prejudgment interest.  The client appealed.  Because the evidence
does not preponderate against the trial court's findings, we affirm.

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

BOBBY WYLIE AND JANIE WYLIE v. FARMERS FERTILIZER & SEED COMPANY,
INC., SHIRLEY HANKS, AND J. B. SIMMONS

FARMERS FERTILIZER & SEED COMPANY, INC., v. BITUMINOUS CASUALTY
CORPORATION, KEITH J. SILER, AND SILER THORNTON AGENCY, INC.

Court:TCA

Attorneys:                          

C. Timothy Crocker and Michael A. Carter, Milan, Tennessee, for the
appellant, Farmers Fertilizer & Seed Company, Inc.

Mark D. Johnston, Dyersburg, Tennessee, for the appellees, Bobby Wylie
and Janie Wylie.

Parks T. Chastain, Nashville, Tennessee, for the appellee, Bituminous
Casualty Corporation.

Gary H. Nichols, Dyersburg, Tennessee, for the appellees, Keith J.
Siler and Siler Thornton Agency, Inc.

Judge: KIRBY

First Paragraph:

This case involves damage to an orchard.  The plaintiffs' orchard was
located entirely in Gibson County.  The defendant fertilizer company
was located in Dyer County.  The plaintiff orchard owners sued the
fertilizer company, alleging that the trees in their orchard were
damaged by the negligent spraying of herbicides on nearby crops.  The
lawsuit was filed in the Dyer County circuit court.  The fertilizer
company moved to dismiss for lack of venue, asserting that the action
was local in nature and had to be filed in the county in which the
orchard was situated.  The trial court denied the motion to dismiss,
finding that the action was transitory, not local, in nature and was
properly filed in Dyer County.  The fertilizer company was granted an
interlocutory appeal from that decision.  We reverse, finding that the
action is primarily local, not transitory, in nature and was required
to have been brought in Gibson County.  In the interest of justice,
however, we remand to the trial court with instructions to transfer
the case to Gibson County, pursuant to Tennessee Code Annotated S
16-1-116.

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

STATE OF TENNESSEE v. SHUN D. JONES

Court:TCCA

Attorneys:                          

Charles Waldman, Memphis, Tennessee, for the Appellant, Shun D. Jones.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; J. Ross Dyer, Assistant Attorney General; William
L. Gibbons, District Attorney General; and Camille McMullen, Assistant
District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Shun D. Jones, was convicted by a Shelby County jury of
two counts of rape and was sentenced to twenty years in the Tennessee
Department of Correction. On appeal, he argues that the evidence
presented at trial was insufficient to support the verdict. After
review, we find no error and affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. ROBERT L. LEACH, JR.

Court:TCCA

Attorneys:                          

Ross E. Alderman, District Public Defender; and Jeffrey A. DeVasher
and C. Dawn Deaner (on appeal), and Laura C. Dykes and Amy D. Harwell
(at trial), Assistant Public Defenders, for the appellant, Robert L.
Leach, Jr.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Thomas B. Thurman, Deputy District Attorney General; and
Kathy Morante and Katrin Novak Miller, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Robert L. Leach, Jr., was found guilty by a jury of two
counts of premeditated murder, two counts of felony murder, one count
of aggravated rape, and one count of especially aggravated robbery. 
The felony murder convictions were merged into the premeditated murder
convictions.  The jury sentenced the defendant to death based upon the
finding that the aggravating circumstances outweighed the mitigating
circumstances beyond a reasonable doubt.  As to victim Sarah McBride,
the jury found three aggravating circumstances: the defendant had
previously been convicted of one or more violent felonies; the murder
was especially heinous, atrocious, or cruel in that it involved
torture or serious physical abuse beyond that necessary to produce
death; and the murder was knowingly committed by the defendant while
committing or attempting to commit robbery or aggravated rape. As to
victim Jean Poteet, the jury found the same three aggravating
circumstances and the additional aggravating circumstance that the
victim was seventy years of age or older or was particularly
vulnerable due to a significant handicap or significant disability,
physical or mental.   The trial court sentenced the defendant to
consecutive sentences of twenty-five years for the especially
aggravated robbery and aggravated rape convictions.  In this appeal,
the defendant raises numerous issues relating to the sufficiency of
the evidence, evidentiary rulings, jury instructions, the
constitutionality of the death penalty, and the application of certain
capital case procedures.  We conclude that no harmful error exists,
and we affirm the convictions and sentences.  The case should be
remanded, though, for correction of clerical errors by which the
judgments for Counts 5 and 6 have respectively been switched to Counts
6 and 5.

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

STATE OF TENNESSEE v. JEFFERY McCRANEY

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; John H. Bledsoe, Assistant Attorney General; C.
Phillip Bivens, District Attorney General; Lance E. Webb, Assistant
District Attorney General, for the appellant, State of Tennessee.

Larry Fitzgerald, Memphis, Tennessee, for the appellee, Jeffery
McCraney.

Judge: WEDEMEYER

First Paragraph:

This is an appeal by permission, pursuant to Rule 9 of the Tennessee
Rules of Appellate Procedure.  The Defendant, Jeffery McCraney, was
indicted by the Dyer County Grand Jury for various narcotics charges
arising out of the search of his motor vehicle.  The trial court
suppressed the evidence obtained as a result of that search, ruling
that the search of the Defendant's vehicle was unconstitutional.  The
State filed a motion for interlocutory appeal, which was granted by
the trial court.  We granted the State permission to appeal, and the
State asserts that the trial court erred when it granted the
Defendant' s Motion to Suppress.  We hold that the trial court did not
err by granting the motion because the search of the Defendant's
vehicle violated constitutional protections against unreasonable
searches and seizures.

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

STATE OF TENNESSEE v. MARCUS THOMPSON

Court:TCCA

Attorneys:                          

Steve McEwen, Mountain City, Tennessee (on appeal); William A.
Kennedy, Blountville, Tennessee (on appeal); and James Bowman, Johnson
City, Tennessee (at trial), for the appellant, Marcus Thompson.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Robert Montgomery, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Marcus Thompson, was convicted in the Sullivan County
Criminal Court of one count of conspiracy to sell or deliver cocaine,
one count of possession of cocaine with the intent to sell or deliver,
and one count of selling and delivering cocaine.  The trial court
imposed a total effective sentence of forty years incarceration in the
Tennessee Department of Correction and fines totaling $150,000.  On
appeal, the appellant raises several issues for our review, including
speedy trial, sufficiency of the evidence, double jeopardy,
evidentiary rulings, and sentencing.  Upon review of the record and
the parties' briefs, we affirm the judgments of the trial court but
reduce the amount of the appellant's fines to a total amount of
$50,000.

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

Constitutionality of 2003 Amendments to Professional Privilege Tax

Date: August 19, 2003

Opinion Number: 03-100                          

http://www.tba.org/tba_files/AG/2003/op100.pdf

Authority of Tennessee Corrections Institute to Waive Compliance with
Minimum Jail Standards

Date: August 19, 2003

Opinion Number: 03-101                        

http://www.tba.org/tba_files/AG/2003/op101.pdf

Memphis City School System -- Consolidation or Unification of Special
School Districts

Date: August 19, 2003

Opinion Number: 03-102                         

http://www.tba.org/tba_files/AG/2003/op102.pdf

Business Tax -- Not Impermissible Double Taxation

Date: August 19, 2003

Opinion Number: 03-103                        

http://www.tba.org/tba_files/AG/2003/op103.pdf

Applicability of child abuse and neglect statute for purposes of
applying the $500.00 privilege tax pursuant to Tenn. Code Ann.
40-24-107(a)(1)(B)

Date: August 19, 2003

Opinion Number: 03-104                         

http://www.tba.org/tba_files/AG/2003/op104.pdf

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