Opinion FlashAugust 25, 2003Volume 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):
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 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 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! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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