Opinion Flash

September 04, 2003
Volume 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):
00 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
09 New Opinion(s) from the Tennessee Court of Appeals
03 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


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

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