Opinion Flash

March 8, 2004
Volume 10 — Number 045

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
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
01 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

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


SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0308.wpd

WENDELL FREELS and wife, GWENETH FREELS v. GUS W. CHILTON

Court:TCA

Attorneys:                          

James Frank Wilson, Wartburg, Tennessee, for Appellants.

William A. Newcomb, Harriman, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

Plaintiffs obtained two judgments in General Sessions Court.  On
appeal to Circuit Court the second judgment was vacated for lack of
jurisdiction.  On appeal we affirm.

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

TODD HUTCHESON v. IRVING MATERIALS, INC., d/b/a IMI

Court:TCA

Attorneys:                          

Mark R. Olson, Clarksville, Tennessee, for the appellant, Todd
Hutcheson.

Martin C. Giner, Nashville, Tennessee, for the appellee, Irving
Materials, Inc., d/b/a IMI.

Judge: CLEMENT

First Paragraph:

Plaintiff filed suit for breach of contract and negligence alleging
that concrete provided by Defendant did not meet specifications. 
Defendant filed counterclaim for Plaintiff's unpaid bill.  Plaintiff
failed to timely respond to requests for admissions.  Defendant filed
motion to have requests deemed admitted, which the trial court
granted.  Plaintiff took no remedial action until seven months later,
after Defendant filed its motion for summary judgment that was
primarily based on the now disputed admissions.  Plaintiff then filed
Tenn. R. Civ. P. 36.02 motion for relief from the admissions.  Trial
court denied Plaintiff's motion for relief, granted Defendant's
summary judgment, awarding damages against Plaintiff, and dismissed
Plaintiff's cause of action against Defendant.  This is an appeal from
the trial court's denial of Plaintiff's motion for relief pursuant to
Tenn. R. Civ. P. 36.02, and the trial court's granting of Defendant's
motion for summary judgment, rendering judgment in favor of Defendant.
 We affirm the trial court.

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

TENNESSEE ENVIRONMENTAL COUNCIL, INC., ET AL. v. BRIGHT PAR 3
ASSOCIATES, L.P., ET AL.

Court:TCA

Attorneys:                          

John P. Konvalinka, Charles G. Fisher and Jim K. Petty, Chattanooga,
Tennessee, Attorneys for Appellants, Tennessee Environmental Council,
Inc., Coalition for Responsible Progress and Sandy Kurtz.

Roger W. Dickson, W. Scott Parrish, Philip A. Langford and Alison
Bales Martin, Chattanooga, Tennessee, Attorneys for Appellees, Bright
Par 3 Associates, L.P.; Corker Group, Inc; Osborne Building
Corporation and DBS Corporation.

Russell W. Gray and Robert M. Steele, Chattanooga, Tennessee,
Attorneys for Appellee, Wal-Mart Real Estate Business Trust.

Judge: INMAN

First Paragraph:

A conservation easement affecting property adjoining South Chickamauga
Creek in Chattanooga was created in 1996.  Property zoned for business
and owned and developed by some of the Defendants is adjacent to the
easement.  The Plaintiffs allege that the development and construction
activities of the Defendants adversely and unlawfully affect the
easement.  The complaint was dismissed upon a ruling that the
Plaintiffs had no standing to enforce the easement, notwithstanding
the language of the Conservation Easement Act, Tennessee Code
Annotated S 66-9-301, et. seq., that it may be enforced by the "holder
and/or beneficiaries" of the easement.  The controversy centers on the
meaning of the word "beneficiaries."  We hold that any resident of
Tennessee is a beneficiary of the easement, and thus has standing to
enforce it.

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

STATE OF TENNESSEE v. TERRY STEVEN BROOKSHIRE

Court:TCCA

Attorneys:                          

Julie A. Rice, Knoxville, Tennessee (on appeal); and Joseph Costner
and Andy Long, Maryville, Tennessee (at trial), for the appellant,
Terry Steven Brookshire.

Paul G. Summers, Attorney General & Reporter; Braden H. Boucek,
Assistant Attorney General; and William Reed, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Terry Steven Brookshire, was convicted of aggravated
robbery, a Class B felony.  See Tenn. Code Ann. S 39-13-402.  The
trial court ordered a sentence of eight years.  In this appeal of
right, he contends that the trial court erred by admitting his
videotaped statement, in which he remained silent in response to the
detective's last questions, in its entirety.  The judgment of the
trial court is affirmed.

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

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