Opinion Flash

November 21, 2003
Volume 9 — Number 214

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
04 New Opinion(s) from the Tennessee Court of Appeals
06 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


MELINDA ANDERSON, ET AL. v. BRETT WILDER, ET AL.

Court:TCA

Attorneys:                          

Brian C. Quist, Knoxville, for the Appellants, Melinda Anderson, Alan
B. Zimmerman, Cherry W. Zimmerman, Charles F. Quade, Janine R. Quade,
William Thompson & Associates, Inc., Michael A. Atkins, Sherry Lynn
Turner, and Patrick L. Martin

Lewis S. Howard, Jr. and Heather R. Gunn, Knoxville, for the
Appellees, Brett Wilder, Dee Dee Wilder, Michael E. Cox, Lamarr Stout,
Anna Stout, Timothy Welles, Kelly Welles, Dennis Freeman, and Rhonda
Shockley

Judge: GODDARD

First Paragraph:

This case involves a dispute between members of a limited liability
company ("LLC") entitled FuturePoint Administrative Services, LLC. 
The Plaintiffs were expelled from the LLC by a vote of the Defendants,
who together owned 53% of FuturePoint.  The Plaintiffs received a
buyout price of $150.00 per ownership unit in FuturePoint after they
were expelled, pursuant to the operating agreement of the LLC. 
Shortly after the expulsion, the Defendants sold 499 ownership units,
amounting to a 49.9% interest in the LLC, to a third party at a price
of $250.00 per ownership unit.  Plaintiffs filed this action,
alleging, among other things, that the Defendants' actions violated
their fiduciary duty and duty of good faith to Plaintiffs.  Defendants
moved for summary judgment, arguing that their actions were authorized
by the operating agreement and that they acted in good faith in
expelling the Plaintiffs.  The Trial Court granted summary judgment in
Defendants' favor.  We vacate the order of summary judgment and
remand.

http://www.tba.org/tba_files/TCA/andersm.wpd

CARL EVANS, ET AL. v. CLARENCE DOUGLAS, ET AL.

Court:TCA

Attorneys:                          

Michael A. Wagner, Chattanooga, Tennessee, for the Appellant, Clarence
Douglas

Fred S. Clelland, Chattanooga, Tennessee, for the Appellees, Carl
Evans and Sharon Evans

John C. Cavett, Jr., Chattanooga, Tennessee, for the Appellee, Rick
McManus

Judge: GODDARD

First Paragraph:

This is a suit by Carl Evans and his wife Sharon Evans against
Clarence Douglas, Heritage Realty, Care Free Home Center, Inc., and
Rick McManus.  The suit sought damages because a lot they supposed
they were buying from Mr. Douglas was not the lot they owned, but one
adjacent thereto.  Heritage Realty was sued as the employer of Mr.
Douglas and Care Free Home Center, Inc., as the seller of a modular
home which was placed on the wrong lot, and putting the Evanses in
touch with Mr. Douglas.  Rick McManus was the owner of the lot upon
which the modular home was placed, although no relief was sought
against him.  Mr. McManus, however, did file a counter-complaint
seeking rents from the Evanses for their use of his lot.  The Trial
Court awarded a judgment to the Evanses against Mr. Douglas only,
under the Tennessee Consumer Protection Act, and a judgment in favor
of Mr. McManus against the Evanses for rental value of the property,
as well as discretionary costs.   We affirm as modified.

http://www.tba.org/tba_files/TCA/evanscarl.wpd

ANTUAN J. FOXX v. JAMES NEELY, ET AL.

Court:TCA

Attorneys:                          

Frank J. Scanlon, Nashville, Tennessee, for the appellant, Antuan J.
Foxx.

Paul G. Summers, Attorney General and Reporter; and Warren A. Jasper,
Assistant Attorney General, for the appellee James Neely,
Commissioner, Tennessee Department of Labor and Workforce Development.

Judge: CLEMENT

First Paragraph:

This is an appeal by a former employee whose unemployment compensation
benefits were denied on the basis of work-related misconduct,
specifically for allegedly refusing to perform certain work as
requested by a supervisor.  The claim for benefits was denied by the
Employment Security Division of the Tennessee Department of Labor and
Workforce Development. The employee filed a petition with the Chancery
Court for judicial review.  The Chancery Court affirmed.  The employee
asserts that the denial of his claim is not supported by substantial
and material evidence.  We find there is substantial and material
evidence to support the denial of benefits and affirm the trial court.

http://www.tba.org/tba_files/TCA/foxxvneely.wpd

CITY OF KNOXVILLE v. ENTERTAINMENT RESOURCES, LLC.

Court:TCA

Attorneys:                          

Philip N. Elbert and Richard L. Gaines, Nashville, Tennessee, for the
Appellant, Entertainment Resources, LLC.

Angela R. Bolton, Beverly B. Clemer, Hillary B. Jones and Michael S.
Kelley, Knoxville, Tennessee,  for the Appellee, City of Knoxville

Judge: GODDARD

First Paragraph:

This appeal questions the constitutionality of Knoxville Code S 16-468
and asserts that the Trial Court erred in its grant of a temporary
injunction against the Appellant, Entertainment Resources, LLC.  We
declare the ordinance unconstitutional, reverse the judgment of the
Trial Court and remand.

http://www.tba.org/tba_files/TCA/knoxvill.wpd

STATE OF TENNESSEE v. TRACI L. CREWS

Court:TCCA

Attorneys:                          

Edward J. Gross, Nashville, Tennessee, for the appellant, Traci L.
Crews.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General;  Ronald L. Davis, District Attorney
General; and Sharon E. Guffee, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant entered a best interest plea to theft over $10,000, as a
Range I, standard offender.  She was sentenced to six years, with
eight months of confinement and the remainder suspended with ten years
of intensive probation.  Restitution was included.  On appeal of her
sentence, the sentence was modified to three years and the remaining
terms of the sentence affirmed in all respects.

http://www.tba.org/tba_files/TCCA/crewstl.wpd

FRANK CRITTENDEN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Michael A. Colavecchio, Easterly & Associates, Nashville, Tennessee,
for the Appellant, Frank Crittenden.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Phil
Wehby, Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Frank Crittenden, appeals the Davidson County Criminal
Court's dismissal of his petition for post-conviction relief. 
Crittenden pled guilty to eight counts of aggravated rape and,
following a sentencing hearing, received an effective one-hundred-year
sentence in the Department of Correction.  On appeal, the single issue
presented for our review is whether Crittenden was denied the
effective assistance of counsel.  Following a review of the record, we
affirm the judgment of the post-conviction court dismissing the
petition.

http://www.tba.org/tba_files/TCCA/crittende.wpd

STATE OF TENNESSEE v. WILLIAM O. EWERLING

Court:TCCA

Attorneys:                          

Gregory D. Clayton, Nashville, Tennessee, for the Appellant, William
O. Ewerling.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; J. Ross Dyer, Assistant Attorney General; Victor S.
Torry, III, District Attorney General; and Scott McMurtry and Doug
Thurman, Assistant District Attorney General, for the Appellee, State
of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, William O. Ewerling, appeals his conviction by a
Davidson County jury for driving under the influence of an intoxicant
(DUI), first offense.  On appeal, Ewerling raises three issues for our
review: (1) whether the trial court's admission of certain evidence at
trial was error; (2) whether the evidence was sufficient to support
his conviction; and (3) whether Ewerling's refusal to submit to a
breath alcohol test was protected by his Fifth Amendment right against
self-incrimination.  Because the record on appeal fails to include
either a transcript of the evidence from Ewerling's trial or a
statement of the evidence as permitted by Tenn. R. App. P. 24, we find
that these issues are procedurally defaulted.  Accordingly, the
judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/ewerlin.wpd

STATE OF TENNESSEE v. REGINALD D. HUGHES

Court:TCCA

Attorneys:                          

Fannie J. Harris, Smith, Hirsch, Blackshear & Harris, Nashville,
Tennessee, for the Appellant, Reginald D. Hughes.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth T. Ryan, Assistant Attorney General;  
Ronald L. Davis, District Attorney General; and Mary Katharine White,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Reginald D. Hughes, was convicted by a Williamson
County jury of felony evading arrest and misdemeanor possession of
cocaine.  As a result of these convictions, Hughes was sentenced as a
Range III persistent offender to an effective sentence of five years
in the Department of Correction.  The single issue presented for our
review is whether the evidence was sufficient to support the verdicts.
 After review of the record, we find the evidence sufficient and
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/hughes.wpd

STATE OF TENNESSEE v. TERESA GAIL PRESSON

Court:TCCA

Attorneys:                          

William B. Lockert, III, District Public Defender; Chris L. Young,
Assistant District Public Defender (on appeal); and Mitchell B. Dugan,
Dickson, Tennessee (at trial), for the appellant, Teresa Gail Presson.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney
General; and Kim G. Menke, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Teresa Gail Presson, appeals from the Dickson County
Circuit Court's order revoking her probation that she received upon
her guilty plea to theft of property valued more than $10,000 but less
than $60,000.  The defendant contends that although she violated her
probation, the trial court erred by ordering her to serve the
remainder of her sentence in confinement.  We affirm the judgment of
the trial court.

http://www.tba.org/tba_files/TCCA/presso.wpd

STATE OF TENNESSEE v. GARRETT NICHOLAS SONS

Court:TCCA

Attorneys:                          

Mary K. Longworth, Loudon, Tennessee, for the appellant, Garrett
Nicholas Sons.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; J. Scott McCluen, District Attorney
General; and Daryl Roger Delp, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant pled guilty to aggravated robbery and felony evading
arrest.  The trial court ordered the sentences for the offenses
committed in Loudon County to be served consecutively to a sentence
for robbery in Knox County.  The defendant contends on appeal that the
trial court erred in imposing consecutive sentencing.  The trial court
did not err in imposing consecutive sentencing because the defendant
was on probation when the current offenses were committed.  The
judgments of the trial court are affirmed.

http://www.tba.org/tba_files/TCCA/sonsgn.wpd

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