Opinion FlashFebruary 11, 2004Volume 10 — Number 028 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 B & L CORPORATION v. THOMAS AND THORNGREN, INC., ET AL. WITH CONCURRING OPINION Court:TCA Attorneys: Craig V. Gabbort, Jr. and D. Alexander Fardon, Nashville, For Thomas and Thorngren, Inc. and Stephen L. Thomas Robert E. Boston, Nashville, For Kris R. Thorngren Robert J. Mendes and Robin B. White, Nashville, for B&L Corporation Judge: CRAWFORD First Paragraph: Plaintiff corporation sued former employees/officers alleging breach of non-compete agreements, breach of fiduciary duty, conversion, unfair competition, intentional inducement to breach a contract, and unjust enrichment. The trial court granted employees summary judgment on all claims and, on appeal, this Court affirmed the trial court's grant of summary judgment on breach of non-compete agreements and conversion of intangible personal property claims. This Court reversed the summary judgment on the remaining claims and remanded the case for trial. The pending case on remand was voluntarily dismissed in the trial court and, subsequently, plaintiff sued defendants for the same remanded claims. Defendants moved to dismiss on the doctrine of res judicata (splitting cause of action) and the trial court denied the motion. After a trial on the merits, the trial court entered monetary judgment against defendants. Defendants appeal. We affirm in part as modified and reverse in part. http://www.tba.org/tba_files/TCA/blcorporation_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/blcorporation_con.wpd JAY JOHNSON, ET AL. v. REED WELCH, ET AL. Court:TCA Attorneys: Jay S. Bowen, Timothy L. Warnock, Taylor A. Cates, Nashville, Tennessee, for the appellants, Reed Welch, Olive Welch, Quality Metal Treating, Inc., and S&S Screw Machine Co., Inc. S. Roger York, Crossville, Tennessee; William S. Walton, Nashville, Tennessee, for the appellees Jay Johnson and QMT Quality Metal Treating, Inc. Judge: COTTRELL First Paragraph: This appeal involves a business dispute with multiple claims for breach of three separate contracts. The trial court found Reed Welch and his company, S& S Screw Machine Company, Inc., in breach in various ways and awarded a total of $1,032,133.15 in damages to Jay and Gail Johnson, both personally and as the owners of Quality Metal Treating, Inc. We affirm in part and reverse in part the judgment of the trial court. http://www.tba.org/tba_files/TCA/johnsonjay.wpd SUE KNIGHTON v. CHARLES E. HAYES, SR. Court:TCA Attorneys: William A. Cohn, Cordova, For Appellant, Charles E. Hayes, Sr. Kirk A. Caraway, Memphis, For Appellee, Sue Knighton Judge: CRAWFORD First Paragraph: Appellee-wife of deceased spouse sued a notary public and his bonding company for damages resulting in the notary public's taking the acknowledgment of the signature of wife's imposter to a waiver of retirement benefits and completing the acknowledgment certificate. The trial court found that the notary public owed a duty of reasonable care which he breached resulting in damage to appellee-wife and entered judgment for wife. Notary public appeals. We affirm. http://www.tba.org/tba_files/TCA/knightonsue.wpd STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. DAVID MICHAEL McBEE, SR., ET AL. Court:TCA Attorneys: Mickey Hall, Winchester, Tennessee, for the appellant, David Michael McBee, Sr. Tammy Brewer, Winchester, Tennessee, Pro Se. Janet M. Songer, Guardian Ad Litem, Winchester, Tennessee, Pro Se. Paul G. Summers, Attorney General & Reporter; Juan G. Villasenor, Assistant Attorney General; Dorothy Defore Buck, Winchester, Tennessee, for the appellee, Tennessee Department of Children's Services. Judge: CAIN First Paragraph: Father appeals the termination of his parental rights as to his two children. The parents are divorced and Mother's parental rights were also terminated; however, she did not appeal. As the trial court made no findings of fact in accordance with Tennessee Code Annotated section 36-1-113(k), we remand this case for a finding of facts by the trial court. http://www.tba.org/tba_files/TCA/mcbeedavidm.wpd ZION HILL BAPTIST CHURCH, Through Its Trustees v. GARRY J. TAYLOR, ET UX. Court:TCA Attorneys: Jack Gritton, Murfreesboro, TN, for Appellants Dicken E. Kidwell, Murfreesboro, TN, for Appellee Judge: HIGHERS First Paragraph: This case involves a dispute over the existence and location of two easements and a request for a mandatory injunction. The first disputed easement arises from the usage of the Plaintiff's property by adjacent owners and the second disputed easement arises from a transfer of property from the Defendants to Plaintiff. The trial court below found that only one of the disputed easements was before the court as an issue and found the easement existed over Plaintiff's land. In addition, the trial court did not issue, and made no findings regarding, the mandatory injunction requested by Defendants. For the following reasons, we affirm in part and remand. http://www.tba.org/tba_files/TCA/zionhill.wpd ADRIAN R. ARNETT v. STATE OF TENNESSEE Court:TCCA Attorneys: J. Liddell Kirk, Knoxville, Tennessee (on appeal); and Gerald L. Gulley, Jr., Knoxville, Tennessee (at trial) for the appellant, Adrian R. Arnett. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Philip Morton, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Adrian R. Arnett, timely filed a petition for post-conviction relief, attacking his convictions for two counts of aggravated rape, one count of especially aggravated kidnapping, one count of aggravated robbery, one count of aggravated assault, and one count of setting fire to personal property. Following an evidentiary hearing, the petition was dismissed by the trial court. On appeal, he raises one issue: his trial counsel rendered ineffective assistance of counsel by failing to properly request funding for and obtaining the services of an independent expert in forensic DNA analysis in order to challenge DNA evidence introduced by the State. After a review of the record, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/arnettadrianr.wpd STATE OF TENNESSEE v. GENE BOOKER Court:TCCA Attorneys: Edwin C. Lenow, Memphis, Tennessee, for the appellant, Gene Booker. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Betsy Carnesale, Assistant District Attorney General, for the appellant, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Gene Booker, was convicted by a jury in the Shelby County Criminal Court of aggravated robbery, especially aggravated kidnapping, and being a convicted felon in possession of a handgun. Following a sentencing hearing, the trial court sentenced the appellant to an effective sentence of fifty-one years in the Tennessee Department of Correction. On appeal, the appellant contends that 1) the evidence was insufficient to sustain his convictions and 2) the trial court erred in determining that the offense of being a felon in possession of a handgun should be tried with the other offenses. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/bookergene.wpd THADDEUS D. DANIEL v. STATE OF TENNESSEE CORRECRED OPINION Court:TCCA Attorneys: Thaddeus D. Daniel, Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; and William H. Cox, III, District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Thaddeus D. Daniel, appeals the trial court's dismissal of his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Tenn. Ct. Crim. App. R. The petition presents no cognizable claim for habeas corpus relief, does not state the cause or pretense of the petitioner's restraint, and was not filed in the appropriate court. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed. CORRECTED OPINION http://www.tba.org/tba_files/TCCA/danielthaddeusd.wpd JAMES E. SWIGGETT v. HOWARD CARLTON, WARDEN and the STATE OF TENNESSEE Court:TCCA Attorneys: James E. Swiggett, pro se. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The Petitioner, James E. Swiggett, appeals the trial court's dismissal of his petition for writ of habeas corpus. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner has not established that the trial court was without jurisdiction to convict or sentence him or that his sentence has expired. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/swiggettjamese.wpd Constitutionality of Tenn. Code Ann. S 57-3-402 as applied to mail order sales of wine to retail customers Date: January 30, 2004 Opinion Number: 04-010 http://www.tba.org/tba_files/AG/2004/op10.pdf Tennessee Tribune as a "newspaper" for purposes of publication of official notices Date: February 3, 2004 Opinion Number: 04-011 http://www.tba.org/tba_files/AG/2004/op11.pdf 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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