Opinion FlashSeptember 22, 2003Volume 9 — Number 172 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 AMPRITE ELECTRIC COMPANY v. TENNESSEE STADIUM GROUP, LLP Court:TCA Attorneys: Phillip Byron Jones, Nashville, Tennessee, attorney for appellant, Amprite Electric Company. Craig V. Gabbert, Jr., Nashville, Tennessee, and F. Barry McCabe, Atlanta, Georgia, for the appellee,, Tennessee Stadium Group, LLP. Todd E. Panther, Nashville, Tennessee, for the Amicus Curiae, The American Subcontractors Association, American Subcontractors Association of Middle Tennessee, and American Subcontractors Association of Western Tennessee. Judge: INMAN First Paragraph: The electrical subcontractor on the Adelphia Stadium job was required by the contractor, on 212 occasions, to perform extra work. Although the subcontract provided that written change orders must precede and authorize extra work, this requirement was soon mutually abandoned because the contractor, encouraged by the owner, was concerned about a timely completion. The principal issue concerns the dollar amount of compensation for the extra work. Amprite priced its extra work according to manuals used in the construction industry, as contrasted to its actual costs plus 10 percent, as the subcontract provides. Amprite concedes that although its actual costs plus 10 percent were substantially less than the amounts claimed, the contractor was estopped to deny the greater compensation. The trial court held that the contract was abandoned and that, in lieu, a different contract would be implied. Amprite was accordingly awarded compensation for "8686 hours never worked, $90,245.00 for materials never purchased and $6,877.00 for taxes never paid,"for a total recovery of $1,131,311.66. Contractor appeals insisting that the contract was not abandoned and that its provisions control. We hold that the requirement of written change orders was waived by mutual agreement but that the remainder of the contract was enforceable. The judgment is modified to allow a recovery of $170,084.00. http://www.tba.org/tba_files/TCA/amprite.wpd LORI ANN BATES v. JOSEPH LYNN BATES Court:TCA Attorneys: Andy L. Allman, Hendersonville, For appellant, Joseph Lynn Bates Thomas J. Drake, Jr., Nashville, For Appellee, Lori Ann Bates Judge: CRAWFORD First Paragraph: This is an appeal from a final decree of divorce, involving issues of appreciation involving Husband's property, award of attorney fees, and division of marital property and debt. Husband appeals. We affirm as modified herein and remand for such further proceedings as may be necessary. http://www.tba.org/tba_files/TCA/bateslori.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; Edward J. Fuhr, Stacy M. Colvin, Eric H. Feiler, and Terence J. Rasmussen, Richmond, Virginia; Gregory P. Williams, Wilmington, Delaware; 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 on the merger of (1) Clayton Homes, Inc., a Delaware corporation, which was, pre-merger, a publicly-owned corporation whose stock was traded on the New York Stock Exchange, with (2) B Merger Sub Inc., also a Delaware corporation. B Merger Sub Inc. was, pre-merger, 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 JOHN DOE 1, A MINOR CHILD, BY NEXT FRIEND, JANE DOE 1; JANE DOE 1, INDIVIDUALLY; AND JOHN DOE 2 v. ROMAN CATHOLIC DIOCESE OF NASHVILLE, ET AL. Court:TCA Attorneys: John A. Day, Christopher J. Pittman, Kelly J. Smits, Brentwood, Tennessee, for the appellants, John Doe 1, Jane Doe 1, and John Doe 2. Thomas F. Mink, Keith W. Blair, Nashville, Tennessee, for the appellee, Roman Catholic Diocese of Nashville. Judge: COTTRELL First Paragraph: This appeal involves claims of intentional infliction of emotional distress through outrageous conduct. John Doe 1, his mother, and John Doe 2 seek to hold the Roman Catholic Diocese of Nashville liable for injuries caused by the alleged outrageous conduct of the Diocese in its dealings with Edward McKeown, a former priest, who sexually molested John Doe 1 and John Doe 2 a number of years after his affiliation with the Diocese ended. The trial court granted the Diocese's summary judgment motion, finding the Does had failed as a matter of law to satisfy the threshold requirements for stating a claim for the tort of outrageous conduct. The plaintiffs appeal that decision. Because we find the summary judgment motion was properly granted, we affirm the trial court. http://www.tba.org/tba_files/TCA/doej.wpd TRINITY INDUSTRIES, INC. v. McKINNON BRIDGE COMPANY, INC. Court:TCA Attorneys: David J. Sneed, Cynthia B. Ferguson, Brentwood, For Appellant, McKinnon Bridge Company, Inc. Hugh C. Howser, Jr., Mary Ellen Morris, David L. Johnson, Nashville, For Appellee, Trinity Industries, Inc. Judge: CRAWFORD First Paragraph: In this case, appellant-contractor for construction of a bridge entered into a contract with appellee-subcontractor for the fabrication and delivery of structural steel. By virtue of an indemnity clause in the contract, the trial court held the contractor liable to the subcontractor for the amounts expended by the subcontractor in settlement of a lawsuit filed against it and for the expenses incurred in the defense of the lawsuit. Contractor appeals. We affirm. http://www.tba.org/tba_files/TCA/trinity.wpd STATE OF TENNESSEE v. CHRISTOPHER G. GREENWOOD REVISED OPINION WITH COURT MEMO Court:TCCA Attorneys: Kenneth Quillen, Nashville, Tennessee, for the appellant, Christopher G. Greenwood. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Georgia B. Felner, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was convicted of driving under the influence of an intoxicant with a blood alcohol content of .10% or more, third offense. On appeal, he contends: (1) the trial court erred in denying his motion for a mistrial after the jury heard evidence of other crimes committed by the defendant; (2) the trial court erred in barring testimony of the arresting officer that he opined the defendant's blood alcohol content was rising at the time of the blood withdrawal; and (3) the evidence was insufficient to support the conviction because the state presented no evidence extrapolating his .12% test result back to the time he was driving. We affirm the judgment of the trial court. REVISED OPINION http://www.tba.org/tba_files/TCCA/greenw_opn.wpd COURT MEMO http://www.tba.org/tba_files/TCCA/greenw_memo.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! 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