Opinion Flash

February 11, 2004
Volume 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):
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
04 New Opinion(s) from the Tennessee Court of Criminal Appeals
02 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


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!
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