Opinion Flash

February 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):
02 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Court of Appeals
01 New Opinion(s) from the Tennessee Court of Criminal Appeals
05 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.

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


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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