Opinion Flash

January 07, 2004
Volume 10 — Number 004

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
05 New Opinion(s) from the Tennessee Court of Appeals
02 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

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.

Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


ARTHUR CREECH, ET AL. v. ROBERT R. ADDINGTON, ET AL.

Court:TCA

Attorneys:                          

David H. Parton, Gatlinburg, Tennessee, for the Appellants, Arthur
Creech and wife, Glenda Creech; Claude Hatfield and wife, Deborah
Hatfield; Wayne Martin and wife, Alice Martin; Brent Chitwood and
Marvin B. Chitwood, Jr., d/b/a Triad Partners; Darlene Reinier; Vicki
Jacobs; Joann L. (Maddy) Wolfe; Laurel Group, Inc.; and Golden Girls,
Inc.

Rick L. Powers and Dan D. Rhea, Knoxville, Tennessee, for the
Appellees, D.C. Parker and Richard B. Flowers.

Judge: SWINEY

First Paragraph:

The plaintiffs leased land in Mississippi from D.C. Parker and Richard
B. Flowers ("Defendants") for the purpose of building motels on the
land.  Plaintiffs claim they were told by Defendants' agent that
financing was in place to build immediately and that this
representation induced them to enter into the leases.  Financing never
materialized and the motels never were built.  Plaintiffs sued
Defendants, the parties expected to provide financing, and others. 
Defendants filed a motion for summary judgment, which the Trial Court
granted.  Plaintiffs appeal.  We vacate and remand.

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

CHER LYNN HOGUE  v. JOSEPH RANDOLPH HOGUE, JR.

Court:TCA

Attorneys:                          

Robert J. Turner, Nashville, Tennessee, for the appellant, Joseph
Randolph Hogue.

Rose Palermo, Nashville, Tennessee, for the appellee, Cher Lynn Hogue.

Judge: CLEMENT

First Paragraph:

Chancellor found father of minor child, who told child he is gay, in
contempt for violating restraining order which prohibited father "from
taking the child around or otherwise exposing the child to his gay
lover(s) and/or his gay lifestyle."  Father appeals, asserting the
restraining order was overbroad and/or vague, not issued pursuant to
Tenn. R. Civ. P. 65.03, and had expired prior to the alleged offense. 
While we find the restraining order was issued properly and not overly
broad, we find the father's act of telling child he is gay did not
violate the restraining order as written.

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

TENNESSEE INDUSTRIAL MACHINERY COMPANY, INC. v. ACCURIDE CORPORATION

Court:TCA

Attorneys:                          

Bradley A. MacLean, James B. Johnson, Nashville, TN, for Appellant

James T. DuBois, D. Scott Porch, IV, Columbia, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This appeal involves the lower court's award of a garnishment judgment
against Accuride Corporation, as well as its subsequent denial of
Accuride's Tenn. R. Civ. P. 59.04 motion to alter or amend the
judgment.  For the following reasons, we reverse the judgment of the
lower court and remand for further proceedings.

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

JAMES L. WAGNER, M.D. v. ROBERT FLEMING, JR., ET AL.

Court:TCA

Attorneys:                          

Douglas M. Cox, Chattanooga, for the appellants, Robert Fleming, Jr.
and Charles Schenck.

William G. Colvin and Everett L. Hixson, Jr., Chattanooga, for the
appellee, James. L. Wagner, M.D.

Judge: SUSANO

First Paragraph:

James L. Wagner, M.D. ("the plaintiff") scheduled a public auction to
sell his Bledsoe County property.  The plaintiff rejected the high
bids received at the auction, believing them to be too low.  He then
sued Robert Fleming, Jr. and Charles Schenck ("the defendants"),
alleging that their activities depressed the bids at the auction.  He
sued the defendants under the Tennessee Consumer Protection Act, Tenn.
Code Ann. S 47-18-101, et seq. ("the Act"), and under the common law
tort theories of injurious falsehood and defamation.  The jury
returned a verdict in favor of the plaintiff, awarding him $20,000 in
damages.  The trial court also awarded attorney's fees to the
plaintiff under the Act.  We reverse and remand.

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

JAMES L. WEST, ET AL. v. FRANK LUNA

Court:TCA

Attorneys:                          

Brad W. Hornsby, Aaron S. Guin, Murfreesboro, Tennessee, for the
appellant, Frank Luna.

R. Whitney Stevens, Jr., Fayetteville, Tennessee, for the appellees,
James L. West and wife, Nancy West; W. Thomas Norman and wife, Kathryn
Norman; Paul Johnson and wife, Elizabeth Johnson; Margaret C.
Jennings; David R. McCauley and wife, Rachel McCauley; Hubert C.
Jennings and wife, Syble Jennings; Delbert McGee; Richard McGee and
wife, Jean McGee; Roger J. Jones and wife, Wanda M. Jones; Paul D.
Sain and wife, Cara Sain; Carl Kinkle; Ernest L. Jennings and wife,
Sharon Jennings; Ray Barhorst and wife, Fay Barhorst.

Judge: CAIN

First Paragraph:

This appeal is the second in a 24 year long dispute over a proposed
raceway in Lincoln County.  After hearing additional proof as this
Court required in West v. Luna, No. 01A01-9707-CH-00281, 1998 WL
467106 (Tenn.Ct.App.1998), the trial court entered a new injunction
prohibiting the defendant Luna from operating a race track on Old
Boonshill Road in Lincoln County.  In this appeal, Mr. Luna challenges
the trial court's injunction as noncompliant with our decision in the
first appeal, and in imposing a noise limitation effectively making
the race track a nuisance per se.  We affirm the trial court.

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

TIMOTHY BICKERS, THOMAS CARTER, AND GREGORY HEDGES v. STATE OF
TENNESSEE

Court:TCCA

Attorneys:                          

Timothy Bickers, Thomas Carter, and Gregory Hedges, Mountain City,
Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; and C. Berkeley Bell, Jr., District
Attorney General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The petitioners, Timothy Bickers, Thomas Carter, and Gregory Hedges,
appeal the post-conviction court's dismissal of their joint pro se
petition for post-conviction relief.  On appeal, the petitioners
contend: (1) due process mandates the statute of limitations be
tolled; and (2) the post-conviction court erred in denying their
motion for recusal.  We affirm the post-conviction court's dismissal
of the petition.

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

STATE OF TENNESSEE v. GERALD L. "PETE" SHIRLEY

Court:TCCA

Attorneys:                          

Julie A. Rice, Knoxville, Tennessee, for the appellant, Gerald L.
Shirley.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; David H. Findley, Assistant Attorney General;
William Paul Phillips, District Attorney General; John W. Galloway,
Jr., and Lori Ann Phillips-Jones, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Scott County jury convicted the Defendant, Gerald L. "Pete" Shirley,
 of especially aggravated kidnapping, one count of aggravated sexual
battery, five counts of aggravated rape, one count of aggravated
assault as a lesser-included offense of attempted second degree
murder, and another count of aggravated assault.  The trial court
imposed an aggregate sentence of sixty years in prison.  On appeal,
the Defendant contends the following: (1) the trial court erred in
permitting the jury to take the "bill of particulars" into the jury
room during deliberations; (2) the Defendant's convictions for
aggravated rape by digital penetration and aggravated rape by oral sex
violate the principles of double jeopardy and duplicity of offenses;
(3) the trial court erred in failing to dismiss or merge the
especially aggravated kidnapping conviction into one of the aggravated
rape convictions; (4) the trial court erred in refusing to permit the
jury to review a copy of the statement that the victim gave to a
police officer; (5) the trial court erred in failing to instruct on
the lesser-included offense of false imprisonment; (6) insufficient
evidence exists to support the convictions; and (7) the trial court
erred in sentencing the Defendant to an effective sixty-year sentence.
 After thoroughly reviewing the record, we conclude that the trial
court committed plain error by instructing the jury that aggravated
assault was a lesser included-offense of attempted second degree
murder.  Accordingly, we reverse the Defendant's conviction of
aggravated assault in count eleven of the indictment and modify his
sentence to an aggregate fifty years in prison.  We affirm the
Defendant's remaining convictions.

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

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi


HomeContact UsPageFinderWhat's NewHelp
© Copyright 2004 Tennessee Bar Association