Opinion FlashNovember 21, 2003Volume 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):
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 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 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? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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