Opinion FlashOctober 09, 2003Volume 9 — Number 184 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 LESLIE M. BUCHHOLZ v. TENNESSEE FARMERS LIFE REASSURANCE COMPANY Court:TCA Attorneys: Robert B. Littleton, David L. Johnson, Nashville, For Tennessee Farmers Life Reassurance Company Danny R. Ellis, Jackson, For Appellee, Leslie Buchholz Judge: CRAWFORD First Paragraph: Beneficiary of life insurance policy sued insurer to collect proceeds of policy. Insurer defended on the ground that the policy had lapsed for nonpayment of premium before the expiration of the thirty-one day grace period provided in the policy. The beneficiary contends that the grace period had not expired prior to the death of the insured, because the premium payment date in the policy was changed by the insurer's accepting premiums from an automatic bank withdrawal on the latter date. Alternatively, beneficiary contends that acceptance by the insurer of the premiums on the latter date was a representation to the insured and relied upon by him to his detriment that the premium was due on the latter date and the grace period began on that date. The trial court denied the insurer's motion for a summary judgment and granted the insured's motion for a summary judgment. Insurer appeals. We vacate and grant summary judgment to insurer. http://www.tba.org/tba_files/TCA/buchh.wpd DALE SUPPLY COMPANY v. YORK INTERNATIONAL CORP., ET AL. Court:TCA Attorneys: Ronald George Harris, Nashville, Tennessee, for the appellant, York International Corp. John Anthony Wolf, Baltimore, Maryland, for the appellant, York International Corp. Joel Randall Hooper, Brentwood, Tennessee, for the appellee, Dale Supply Company. Judge: HELDMAN First Paragraph: The sole determinative issue on appeal is whether an agreement which mandates arbitration in the event of claims or disputes "arising out of or relating in any way to the relationship of the parties or this Agreement, or the breach thereof," requires arbitration of tort claims including acts arising after the parties' contractual relationship ended. We hold that arbitration of claims of tortious interference with contracts or business relations is required under the terms of the parties' agreement and reverse the judgment of the trial court. http://www.tba.org/tba_files/TCA/dale.wpd ETHEL HICKS, ET AL., DERIVATIVELY ON BEHALF OF UNION PACIFIC CORPORATION v. DREW LEWIS, ET AL. Court:TCA Attorneys: Mary L. Wolff and Katherine L. Frazier, Memphis, Tennessee; William S. Lerach,, Travis E. Downs, III, James R. Hail, and Mary K. Blasy, San Diego, California; George E. Barrett, Douglas S. Johnston, Timothy L. Miles, and James G. Stranch, III, Nashville, Tennessee, for the appellants, Ethel Hicks, et al. Leo Bearman, Jr., Memphis, Tennessee, for the appellees, Drew Lewis, Richard K. Davidson, Philip F. Anschutz, E. Virgil Conway, Thomas J. Donohue, Archie W. Dunham, Spencer F. Eccles, Ivor J. Evans, Elbridge T. Gerry, Jr., Judith Richards Hope, Richard J. Mahoney, James Robinson, III, Steven R. Rogel, Richard D. Simmons, and Ernesto Zedillo Ponce de Leon. Robin Rasmussen, Cordova, Tennessee, for the appellees, Leo H. Suggs, James D. Douglas, Robert Cecil, Mike Eastman, Joe Jasmer, Richard Pair, Jeff Seegert, Donald Tuggle, and Dwayne Williams. Clifford Pierce, Jr., Memphis, Tennessee, for the nominal appellees, Union Pacific Corporation and Overnite Transportation Company. Judge: KIRBY First Paragraph: This is a shareholders derivative action. The plaintiff shareholders sued the defendant Utah corporation and its board of directors and officers, claiming that the defendants' unlawful labor violations caused financial damage to the corporation of approximately $1 billion dollars. The defendants moved to dismiss because the plaintiffs failed to make a pre-suit demand on the corporation to take corrective action, as is required under Utah law. The plaintiffs asserted that the law of Tennessee applied, and that under Tennessee law, a pre-suit demand is not required when making such a demand would be futile. The trial court granted the defendants' motion to dismiss, applying the law of Utah. The plaintiffs now appeal. We affirm, finding that the law of the state of incorporation applies to issues related to the pre-suit demand requirement and that, under the law of Utah, the plaintiffs' failure to make a pre-suit demand on the corporation mandates dismissal of the lawsuit. http://www.tba.org/tba_files/TCA/hickse.wpd MARC J. KAYEM, M.D. v. WILLIAM ROBERT STEWART, JR., M.D. Court:TCA Attorneys: Scott C. Williams and Stephanie S. Maxwell, Columbia, Tennessee, for the appellant, Marc J. Kayem, M.D. Thomas W. Hardin and Patrick M. Carter, Columbia, Tennessee, for the appellee, William Robert Stewart, M.D. Judge: FARMER First Paragraph: Plaintiff filed suit to recover sums allegedly due under a contract of employment. The trial court awarded partial summary judgment to defendant, finding plaintiff was not entitled to certain percentages of accounts receivable. The trial court further found plaintiff had breached the contract and a covenant not to compete, and awarded defendant a judgment of $12,500. The trial court also awarded defendant's attorney's fees. We affirm in part, reverse in part, and remand. http://www.tba.org/tba_files/TCA/kayemmarcj.wpd GREGORY MORRIS v. SHELBY COUNTY GOVERNMENT Court:TCA Attorneys: A. Wilson Wages, Millington, Tennessee, for the appellant, Gregory L. Morris. Carroll C. Johnson, Memphis, Tennessee, for the appellant, Shelby County Government. Judge: KIRBY First Paragraph: This is a claim for on-the-job injury benefits. The plaintiff was a jailer in the defendant county sheriff department. While at work, the plaintiff fell down an escalator onto his knees. He did not receive medical treatment at that time. Over seven months later, the plaintiff began working a shift at the jail that required him to stand during the entire shift, causing pain and swelling in his knees. Consequently, the plaintiff underwent surgery on both of his knees. The plaintiff filed a lawsuit seeking on-the-job injury benefits for the time he was off work recovering from the surgeries. The trial court held that he was not entitled to the benefits, finding that the expert medical testimony did not establish that the condition for which the plaintiff underwent surgery arose out of his employment. The plaintiff now appeals. We affirm, concluding that the evidence does not preponderate against the trial court's finding that the plaintiff had not proved causation. http://www.tba.org/tba_files/TCA/morrisg.wpd TOWN OF OAKLAND v. TOWN OF SOMERVILLE, ET AL. Court:TCA Attorneys: Richard J. Myers, Memphis, Tennessee, for the appellant, Town of Oakland. J. Kevin Walsh and James R. Newsom, III, Memphis, Tennessee, for the appellees, Town of Somerville, et al. Judge: KIRBY First Paragraph: This is an annexation case. The plaintiff municipality passed an ordinance annexing adjoining property. The annexation was to be effective ninety days later. The property to be annexed was also near the defendant municipality, which had a greater population than the plaintiff municipality. After the plaintiff municipality passed the annexation ordinance, prior to its effective date, the defendant passed an ordinance to annex the same property. Almost two years later, the plaintiff filed this lawsuit, seeking a declaratory judgment that the defendant's annexation ordinance was invalid, because it attempted to annex property that the plaintiff had already annexed. The trial court granted the defendants' motion to dismiss, determining that the plaintiff had had ninety days in which to challenge the ordinance in a quo warranto action pursuant to Tennessee Code Annotated S 6-51-103, and its failure to do so within that time limit was fatal to its claim. The plaintiff now appeals. We reverse, finding that the remedy of declaratory judgment was available to challenge the validity of an annexation ordinance, and that the ninety-day requirement for a quo warranto action does not apply to such a declaratory judgment lawsuit. http://www.tba.org/tba_files/TCA/oakland.wpd IN THE MATTER OF THE ESTATE OF JOAN FORSHEA PEARSON, DECEASED Court:TCA Attorneys: William G. Hatton, Bolivar, Tennessee, for the appellant Bonnie White, Executrix for the estate of Joan Forshea Pearson. H. Morris Denton, Bolivar, Tennessee, for the appellee Bonnie Rudd. Judge: KIRBY First Paragraph: This case involves a claim against a decedent's estate. The claimant asserted that the decedent loaned her a significant sum of money. The executrix of the estate excepted to the claim. Despite considerable evidence of suspicious surrounding circumstances, the trial court claim was allowed. Since we are unable to determine the basis for the trial court's ruling, we remand for clarification of the record. http://www.tba.org/tba_files/TCA/pearson.wpd GEORGE CAMPBELL, JR. v. BRUCE WESTBROOKS, WARDEN Court:TCCA Attorneys: George Campbell, Jr., Henning, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; and William L. Gibbons, District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, George Campbell, Jr., was convicted by a jury of felony murder and aggravated assault. He was sentenced to life imprisonment for the felony murder conviction and ten years confinement for the aggravated assault conviction. Subsequently, the petitioner filed a pro se petition for writ of habeas corpus, alleging that his convictions were void because the trial court was without jurisdiction to render judgment. The trial court summarily dismissed the petition and the petitioner appealed to this court. Upon review of the record and the parties' briefs, we affirm the trial court's dismissal of the petition for writ of habeas corpus. http://www.tba.org/tba_files/TCCA/campb.wpd STATE OF TENNESSEE v. RICHARD COLE, III Court:TCCA Attorneys: Jeff Mueller, Jackson, Tennessee, for the Appellant, Richard Cole, III. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and Garry G. Brown, District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Richard Cole, III appeals from the Crockett County Circuit Court's imposition of an effective 50-year sentence for his convictions of especially aggravated kidnapping and two counts of aggravated rape. The individual sentence for each of the three Class A felonies was set at 25 years, and the aggravated rape sentences were imposed concurrently with each other and consecutively to the especially aggravated kidnapping sentence. The defendant complains on appeal that the individual sentences are too lengthy and that there is no basis for consecutive sentencing. Upon review, we modify the defendant's individual sentences to 21 years for the two aggravated rape convictions and 21 years for the especially aggravated kidnapping conviction. We find partial consecutive sentencing appropriate and impose an effective sentence of 42 years. http://www.tba.org/tba_files/TCCA/coler.wpd STATE OF TENNESSEE v. TERRY LYNN ROBERTS Court:TCCA Attorneys: Guy T. Wilkinson, District Public Defender, and Billy R. Roe, Jr., Assistant District Public Defender, for the appellant, Terry Lynn Roberts. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; G. Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Terry Lynn Roberts, was convicted by a Carroll County Circuit Court jury of rape of a child, a Class A felony; aggravated sexual battery, a Class B felony; and rape, a Class B felony. The trial court sentenced him to consecutive sentences of twenty-five years for the rape of a child conviction, eleven years for the aggravated sexual battery conviction, and twelve years for the rape conviction. The defendant appeals, claiming that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/roberts.wpd STATE OF TENNESSEE v. FRED TAYLOR SMITH Court:TCCA Attorneys: J. Barney Witherington, IV, for the appellant, Fred Taylor Smith. Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Fred Taylor Smith, entered pleas of guilt to driving under the influence and driving under the influence per se. See Tenn. Code Ann. S 55-10-401(a)(1)-(2). The trial court merged the two convictions and imposed a sentence of 11 months and 29 days with a requirement of service of 75%. As a part of the plea agreement, the defendant reserved a certified question of law challenging the validity of the investigatory stop. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/smithf.wpd STATE OF TENNESSEE v. BRIAN L. WOODS Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee, for the Appellant, Brian L. Woods. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Brent C. Cherry, Assistant Attorney General; C. Phillip Bivens, District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Brian L. Woods, was convicted by a Dyer County jury of second degree murder and received a twenty-four-year sentence to be served in the Department of Correction. In this appeal as of right, Woods raises the following issues for our review: (1) whether the trial court erred by permitting a witness to testify in violation of the rule of sequestration; (2) whether the evidence is sufficient to support his conviction; and (3) whether his sentence of twenty-four years is excessive. After a review of the issues presented, we conclude that Woods' challenges are without merit. The judgment of conviction and sentence are affirmed. http://www.tba.org/tba_files/TCCA/woodsb.wpd STATE OF TENNESSEE v. JAMES ADMERAL YANDAL Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Joseph P. Atnip, District Public Defender, and William K. Randolph, Assistant Public Defender (at trial and on appeal), for the appellant, James Admeral Yandal. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Thomas A. Thomas, District Attorney General; and Kevin D. Alpin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his conviction and sentence for selling a Schedule VI drug over one-half ounce, a violation of Tennessee Code Annotated section 39-17-417(a)(3), a Class E felony. The defendant alleges that the delay between the offense date and his conviction was a due process violation and that his four-year sentence as a Range II offender was excessive. We conclude that neither issue is meritorious and affirm the judgment from the trial court. http://www.tba.org/tba_files/TCCA/yandal.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! 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