Opinion FlashFebruary 19, 2004
Volume 10 Number 033
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):
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Howard H. Vogel
JOHN DOE v. JANE DOE Court:TSC Attorneys: John Edward Herbison, Nashville, Tennessee, for the Petitioner, John Doe. Douglas M. Fisher, Nashville, Tennessee, for the Respondent, Jane Doe. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michael W. Catalano, Associate Solicitor General; Steven A. Hart, Special Counsel, for the State of Tennessee. Ronald D. Krelstein, Germantown, Tennessee, for the Amicus Curiae, Richard Roe. Judge: BARKER First Paragraph: The petitioner, an attorney identified as John Doe, filed a petition for contempt alleging violations by the respondent, an attorney identified as Jane Doe, of the confidentiality requirement of Rule 9, section 25 of the Rules of the Tennessee Supreme Court. The Court directed the parties to address as a threshold matter the constitutionality of Rule 9, section 25. After considering the arguments of the parties, the Attorney General and amicus curiae, and analyzing the applicable law, we hold that section 25 of Rule 9 violates free speech protections of Article I, section 19 of the Tennessee Constitution and the First Amendment to the United States Constitution. We further conclude that sanctions for criminal contempt are not appropriate under the circumstances of this case. Accordingly, the petition for contempt is denied. http://www.tba.org/tba_files/TSC/doej.wpd
PEGGY GASTON v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY CORRECTED OPINION Court:TSC Attorneys: H. Chris Trew, Athens, Tennessee, for the Appellant, Tennessee Farmers Mutual Insurance Company. Larry B. Nolen, Athens, Tennessee, for the Appellee, Peggy Gaston. Judge: ANDERSON First Paragraph: We granted review to decide whether there was sufficient evidence to require a jury to determine whether the insurer waived compliance with insurance policy provisions requiring the insurer's consent to a third-party settlement by its insured. After the insurance company denied her claim, the insured filed a complaint alleging breach of contract, violation of the Tennessee Consumer Protection Act, and bad faith. The trial court directed a verdict for the insurance company, finding that the insured failed to comply with the subrogation provisions of her policy and that the insurance company did not waive these provisions. The Court of Appeals reversed. After reviewing the record and applicable authority, we agree with the Court of Appeals that there was evidence from which a reasonable jury could find that the insurance company waived the subrogation provisions. We also conclude that the insured was not required to demonstrate that the insurance company had not been prejudiced and that the trial court improperly directed verdicts on the insured's claims under the Tennessee Consumer Protection Act and the bad faith statute. We therefore affirm the Court of Appeals' judgment and remand to the trial court for a new trial. CORRECTED OPINION http://www.tba.org/tba_files/TSC/gastonpeggy.wpd
IN RE: AMENDMENT TO RULE 9, RULES OF THE TENNESSEE SUPREME COURT Court:TSC - Rules Judge: DROWOTA First Paragraph: Simultaneously with the entry of this order, the Court is releasing its opinion in John Doe v. Jane Doe, No. M2003-01142-SC-S25-BP. In that opinion, we held that the confidentiality requirement set out in section 25 of Rule 9, Tenn. S. Ct. R., violates the free speech protections of Article I, section 19 of the Tennessee Constitution and of the First Amendment to the United States Constitution. We stated in the opinion that we would publish a proposed amendment to Rule 9, section 25, addressing the constitutional concerns discussed in the opinion. http://www.tba.org/tba_files/TSC_Rules/rul9s25_ord.wpd
JAMES W. HUNTER, ET AL. v. METROPOLITAN BOARD OF ZONING APPEALS, ET AL. Court:TCA Attorneys: C. LeAnn Smith, Nashville, Tennessee, for the appellants, James W. Hunter and James R. Hunter. Karl Dean, J. Brooks Fox, and John L. Kennedy, Nashville, Tennessee, for the appellees, Metropolitan Board of Zoning Appeals and Metropolitan Government of Nashville and Davidson County. Judge: KOCH First Paragraph: This appeal involves a Nashville landowner's efforts to avoid constructing a landscape buffer on his industrial property. The landowner submitted plans to construct a new building that included a buffer but then did not construct the buffer. After the landowner failed to obtain a use and occupancy permit, he sought a variance from the landscape buffer requirement. The Board of Zoning Appeals denied the requested variance, and the landowner filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County asserting that the Board erred by declining to grant the variance. We have determined that the Board did not act arbitrarily, capriciously, or illegally and, therefore, affirm the trial court. http://www.tba.org/tba_files/TCA/hunterjw.wpd
BASIL MARCEAUX v. THE CITIZEN DAVID NORTON Court:TCA Attorneys: Basil Marceaux, pro se Appellant. Ronald D. Wells and Stacy Lynn Archer, Chattanooga, Tennessee, for the Appellee David Norton. Judge: SWINEY First Paragraph: Basil Marceaux ("Plaintiff") filed this lawsuit against "The Citizen David Norton." David Norton ("Defendant") is the Soddy Daisy City Court Judge. Plaintiff brought this lawsuit because Defendant had found him guilty of violating the Tennessee Financial Responsibility Law and imposed a fine. Plaintiff claims these actions by Defendant violated his federal constitutional rights. The Trial Court dismissed Plaintiff's complaint after concluding, inter alia, that Defendant was judicially immune. Plaintiff appeals, and we affirm. http://www.tba.org/tba_files/TCA/marceau.wpd
STATE OF TENNESSEE v. DEMPSEY HAROLD, JR. Court:TCCA Attorneys: John S. Anderson, Rogersville, Tennessee, for the appellant, Dempsey Harold, Jr. Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; and Victor J. Vaughn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Dempsey Harold, Jr., was convicted of vandalism under $500, a Class A misdemeanor. The trial court imposed a sentence of eleven months and twenty-nine days, with the defendant to be eligible for work release or other such programs after service of 30 percent in confinement. See Tenn. Code Ann. S 40-35-302(d). In this appeal, the defendant alleges that the evidence is insufficient to support the conviction and that the trial court erred by imposing a sentence of confinement. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/harolddempsey.wpd
Remote-Controlled Railroad Locomotives Date: February 11, 2004 Opinion Number: 04-022 http://www.tba.org/tba_files/AG/2004/op22.pdf
Constitutionality of notice requirement for write-in candidates Date: February 12, 2004 Opinion Number: 04-023 http://www.tba.org/tba_files/AG/2004/op23.pdf
Effect of Public Chapter No. 175 of the Acts of 2003 on Expungement of Records in Criminal Cases. Date: February 12, 2004 Opinion Number: 04-024 http://www.tba.org/tba_files/AG/2004/op24.pdf
Protection from civil or criminal liability for medical personnel taking blood samples Date: February 12, 2004 Opinion Number: 04-025 http://www.tba.org/tba_files/AG/2004/op25.pdf
Interpretation of Tenn. Code Ann. S41-4-140 Date: February 12, 2004 Opinion Number: 04-026 http://www.tba.org/tba_files/AG/2004/op26.pdf
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