Opinion FlashSeptember 04, 2003Volume 9 — Number 161 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 GAIL ALLEN, ET AL. v. SATURN CORPORATION, ET AL. Court:TCA Attorneys: Michael D. Galligan and Richard A. Dorris, McMinnville, Tennessee, for the appellants, Gail Allen and Larry Allen. Nancy S. Jones, Mark W. Peters, and Eileen E. Burkhalter, Nashville, Tennessee, for the appellee, Saturn Corporation. Judge: CANTRELL First Paragraph: Appellants, Gail and Larry Allen, sustained injuries when a tent collapsed during a thunderstorm at a Homecoming at the Saturn Corporation in Spring Hill. They brought suit for their injuries caused by negligence in maintenance and construction of the tent. They dismissed or settled their claims with all Defendants except Saturn Corporation. Saturn filed a Motion for Summary Judgment arguing that Appellants were unable to establish a prima facie case of the Appellee's negligence. The trial court granted Appellee's Motion for Summary Judgment. We affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/alleng.wpd DENVER AREA MEAT CUTTERS AND EMPLOYERS PENSION PLAN, DERIVATIVELY ON BEHALF OF CLAYTON HOMES, INC. v. JAMES L. CLAYTON, ET AL. Court:TCA Attorneys: John A. Lucas and John G. Brock, Knoxville, Tennessee, and Jerry G. Cunningham, Maryville, Tennessee, for the appellants, James L. Clayton, Kevin T. Clayton, C. Warren Neel, B. Joe Clayton, Steven G. Davis, Dan W. Evins, Wilma H. Jordan, Thomas N. McAdams, and Clayton Homes, Inc. George E. Barrett, Douglas S. Johnston, Jr., Timothy L. Miles, James G. Stranch, III, and C. Dewey Branstetter, Nashville, Tennessee; Darren J. Robbins, Randall J. Baron, A. Rick Atwood, Jr., and Mary K. Blasy, San Diego, California; and David R. Duggan, Maryville, Tennessee, for the appellees, Denver Area Meat Cutters and Employers Pension Plan. Judge: SUSANO First Paragraph: The focus of this litigation is upon the merger of Clayton Homes, Inc., a publicly-owned Delaware corporation whose stock was, until recently, traded on the New York Stock Exchange, with B Merger Sub Inc., also a Delaware corporation. B Merger Sub Inc. was a wholly-owned subsidiary of Berkshire Hathaway, Inc. The latter company is a publicly-owned Delaware corporation; its stock is traded on the New York Stock Exchange. We granted an extraordinary appeal to the defendant Clayton Homes, Inc., and the individual defendants, all of whom were members of that corporation's pre-merger board of directors, in order to review the trial court's order of August 18, 2003, attached as Appendix A to this opinion. The defendants' application for review - filed pursuant to the provisions of Tenn. R. App. P. 10 - asks us to determine "(1) whether the [trial court] properly granted Plaintiff's request for a [temporary restraining order]; (2) whether the [trial court] properly found that Plaintiff retained standing to maintain its derivative claims [;] and[] (3) whether the [trial court] properly lifted the stay previously issued in this action." We hold (1) that the trial court's "status quo" order - essentially a temporary injunction - was erroneously issued and, accordingly, we vacate that order; (2) that the plaintiff lacks standing to pursue its stockholders' derivative claims, and, consequently, we vacate the trial court's order denying the defendants' motion to stay as to those claims; (3) that the trial court should dismiss the plaintiff's stockholders' derivative claims upon the filing of an appropriate motion to dismiss; and (4) that the trial court did not err in permitting, at this time, the plaintiff's putative class action lawsuit for damages to proceed forward in the court below. The trial court's order is vacated in part and affirmed in part and this case is remanded to the trial court with instructions. We direct that the order issued pursuant to this opinion will be stayed until 4:30 p.m. EDT, September 8, 2003, in order to afford each of the parties an opportunity to request further appellate review by the Supreme Court. http://www.tba.org/tba_files/TCA/denver.wpd In the Matter of the Estate of Nola Layne Deskins, NONA DESKINS SANDERS, LIOUBOV V. DESKINS and ESTATE OF THOMAS A. DESKINS, v. RANDALL DESKINS and THELMA DESKINS Court:TCA Attorneys: Ronald T. Hill, Knoxville, Tennessee, for Appellants. C. Dan Scott, Sevierville, Tennessee, for Appellees. Judge: FRANKS First Paragraph: In this Estate dispute, the Trial Court dismissed claims of two claimants. We affirm, dismissal of claimant who died on grounds his Estate had no standing to proceed. We reinstate the action of the other claimant on grounds she is not estopped to maintain her action. http://www.tba.org/tba_files/TCA/deskinsn.wpd ANGELA KAMILLE DRAPER, as parent, survivor and next friend of BRYANNA FAITH DRAPER, deceased, v. STATE OF TENNESSEE Court:TCA Attorneys: Paul R. Wohlford, and Kenneth D. Hale, Bristol, Tennessee, for Appellant. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Heather C. Ross, Senior Counsel, Nashville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: In action against the State of Tennessee and a state employee, the Commissioner held he had no jurisdiction of the claims. On appeal, we affirm. http://www.tba.org/tba_files/TCA/drapera.wpd IN RE: ESTATE OF ELIZABETH A. HAYNES KENNETH HUGHES, ET UX. v. ESTATE OF ELIZABETH A. HAYNES Court:TCA Attorneys: Mark Stewart, Winchester, For Appellant, Estate of Elizabeth A. Haynes Mickey Hall, Winchester, For Appellees, Kenneth Hughes and Elaine Hughes Judge: CRAWFORD First Paragraph: This appeal involves a claim filed against an estate for recovery for personal services rendered by claimants, husband and wife, to the decedent. The probate court granted the claim. Estate appeals. We reverse. http://www.tba.org/tba_files/TCA/hughesk.wpd LABOR-KRAFT, INC. v. DONALD E. LEAGUE, ET AL. Court:TCA Attorneys: Paul R. White and Robert F. Spann, for the Appellant, Labor-Kraft, Inc. Robert L. Callis, for the Appellees, Donald E. League and Helen F. League. Michael R. Jennings, Wilson County Attorney, Lebanon, Tennessee, for the Appellees, State of Tennessee, in and for its own behalf and for the use and benefit of Wilson County, Tennessee, and the City of Watertown, Tennessee and the City of Lebanon, Tennessee. Judge: FARMER First Paragraph: This dispute arises from a tax sale of real property in Wilson County. The County failed to give notice of the sale to plaintiff, who held a properly recorded deed of trust. The trial court determined the debt secured by the deed of trust had been paid and that the County's failure to give notice accordingly was harmless error. We affirm. http://www.tba.org/tba_files/TCA/laborkraft.wpd LINDA LAWS, EXECUTRIX OF THE ESTATE OF MARY EULA SLOAT, DECEASED v. WATER AND LIGHT COMMISSION OF THE TOWN OF GREENEVILLE, ET AL. Court:TCA Attorneys: Jeffrey M. Ward, Greeneville, Tennessee, for the Appellant, Water and Light Commission of the Town of Greeneville, Tennessee, et al J. Ronnie Greer, Greeneville, Tennessee, for the Appellee, Linda Laws, in Her Capacity as Executrix of the Estate of Mary Eula Sloat, Deceased Judge: GODDARD First Paragraph: This appeal questions whether the Trial Court erred in its judgment against the Appellant/Defendant, Water and Light Commission of the Town of Greeneville, Tennessee, for personal injuries sustained by a Greeneville resident as a result of the smoking of sewer lines by the Appellant. We affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/lawsl.wpd JOHN MCCONKEY v. STATE OF TENNESSEE
Court:TCA
Attorneys:
Charles Galbreath, Nashville, Tennessee, for the Appellant, John
McConkey.
Paul G. Summers, Michael E. Moore, and Martha A. Campbell, Nashville,
Tennessee, for the Appellee, State of Tennessee.
Judge: SWINEY
First Paragraph:
John McConkey ("Plaintiff") had a vasectomy performed by a
state-employed doctor. Plaintiff experienced swelling and pain after
the operation, which he claimed caused him to lose time at work and
caused problems in his marriage. Plaintiff underwent two subsequent
surgeries including the removal of his left testicle. Plaintiff
brought this claim against the doctor who performed the vasectomy.
Plaintiff had no expert witness at trial. After trial, the Claims
Commission ("Commission") entered an order holding, inter alia, that
Plaintiff did not carry his burden of proof to establish a res ipsa
loquitur case. Plaintiff appeals. We affirm.
http://www.tba.org/tba_files/TCA/mcconkeyj.wpd
SOUTHEAST DRILLING AND BLASTING SERVICES, INC. v. HU-MAC CONTRACTORS, LLC, ET AL. Court:TCA Attorneys: Timothy W. Burrow, Nashville, Tennessee, for the appellee, Southeast Drilling and Blasting Services, Inc. Brigid M. Carpenter, Nashville, Tennessee, for the appellants, Hu-Mac Contractors, LLC, et al. Judge: STEWART First Paragraph: This case comes to the Court by an appeal from the Chancery Court of Davidson County. Southeast Drilling and Blasting Services, Inc., hereinafter referred to as "Southeast", brought suit against Hu-Mac Contractors, LLC, Hu-Mac Contractors, Fieldstone Homes, LLC, d/b/a Hu- Mac Contractors, hereinafter referred to as "Hu-Mac", and FVN, LLC for breach of contract. At trial, Southeast stipulated the only party they dealt with was Hu-Mac Contractors, LLC. After a two day bench trial, the Chancellor entered a judgment against Hu-Mac finding there was an unsigned written contract between the parties. The Chancellor determined Southeast was entitled to its lost profits, prejudgment interest, and attorneys fees pursuant to the Prompt Pay Act of 1991 (TCA SS66-34-101, et seq.). After a review of the record, this Court reverses the Trial Court in part and affirms it in part and remands to the Trial Court for action consistent with this Opinion. http://www.tba.org/tba_files/TCA/southeastdrill.wpd STATE OF TENNESSEE v. RHONDA CLOER Court:TCCA Attorneys: Conrad Finnell, Cleveland, Tennessee, for the appellant, Rhonda Cloer. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kathy D. Aslinger, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Sandra N. Donaghy, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Polk County Grand Jury indicted the Defendant for three counts of vehicular homicide, four counts of aggravated assault, and twelve counts of failure to stop a school bus at a railroad crossing. The Defendant filed an application for pretrial diversion, and the trial court ordered that a pretrial diversion report be completed. Upon completion of the report, the Assistant District Attorney General denied the application, and the Defendant appealed to the District Attorney General, who also denied the application. The trial court granted a writ of certiorari and, thereafter, affirmed the District Attorney General's decision. The Defendant sought, and was granted, permission to take an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. We granted the Defendant's application for interlocutory review to address the Defendant's contention that the State abused its discretion by denying her application for pretrial diversion. After a thorough consideration of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/cloerr.wpd STATE OF TENNESSEE v. JACKIE LEE GRAY Court:TCCA Attorneys: William C. Barnes, Jr., Columbia, Tennessee, for appellant, Jackie Lee Gray. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; and Mike Bottoms, District Attorney General, for appellee, State of Tennessee. Judge: SMITH First Paragraph: On January 28, 2002, the appellant, Jackie Lee Gray, pleaded guilty to two counts of misdemeanor assault, one count of vandalism under $500, one count of public intoxication, and one count of resisting arrest. The judgments in the technical record reflect that the appellant was ordered to serve an effective sentence of six months incarcerated and six months on probation for his convictions. On August 6, 2002, this court granted the appellant's motion to late-file a transcript of the evidence. On September 26, 2002, the Circuit Court of Maury County had not yet received the transcript and therefore sent the technical record to the court. The appellant now brings this appeal claiming that the trial court improperly ordered him to serve a portion of his sentence in jail. Because the transcript of the sentencing hearing is not before this Court we have no choice but to affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/grayjackie.wpd STATE OF TENNESSEE v. WILLIAM HENRY VAUGHAN, IV Court:TCCA Attorneys: Hershell Koger (on appeal) and J. Russell Parkes (at trial), Pulaski, Tennessee, for the appellant, William Henry Vaughan, IV. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Mike Bottoms, District Attorney General; and Robert C. Sanders, Richard Dunavant, and Patrick Butler, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, William Henry Vaughan, IV, was convicted by a jury of first degree premeditated murder and aggravated arson. He was sentenced to life imprisonment for the murder and to twenty- five years for the arson, with the sentences to be served consecutively. In this direct appeal, the Defendant makes the following claims: (1) the trial court erred in denying his motion to suppress; (2) he was denied his right to a speedy trial; (3) the sequestered jury was separated; (4) the trial court erred by admitting a police officer's written report in its entirety; (5) he was deprived of his fundamental constitutional right to testify; (6) the evidence is not sufficient to support his convictions; and (7) he was deprived of the effective assistance of counsel. Because we find that the Defendant was deprived of his fundamental constitutional right to testify, and because the State has failed to demonstrate that the deprivation was harmless beyond a reasonable doubt, we vacate the Defendant's convictions and remand this matter for a new trial. http://www.tba.org/tba_files/TCCA/vaughanwh.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? ... 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