Opinion Flash

April 26, 2004
Volume 10 — Number 080

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):
01 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
05 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
10 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


JAMES H. KELLEY, et al. v. MIDDLE TENNESSEE EMERGENCY PHYSICIANS,
P.C., et al.
CORRECTED OPINION

Court:TSC

Attorneys:                          

C. J. Gideon, Jr., Brian Cummings, and Kenneth P. Flood, Nashville, Tennessee, for the Appellants, John Cage, M.D. & Mid-State Cardiology Associates, P.C.

Daniel L. Clayton, Nashville, Tennessee, and Steven R. Walker, Memphis, Tennessee, for the Appellees, James H. Kelley, Joshlane Rachel Ware, and Joseph Lovell Ware. 

Judge: BARKER

First Paragraph:

We granted review to determine whether the trial court erred in
granting summary judgment to the defendants in this medical
malpractice lawsuit.  The trial court concluded that there was no
genuine issue of material fact and that, as a matter of law, no
physician-patient relationship existed.  The Court of Appeals reversed
the judgment of the trial court.  After careful review of the record
before us and the applicable authorities, we conclude that there are
disputed issues of fact as to the existence of a physician-patient
relationship, and we therefore affirm the decision of the Court of
Appeals.  The case is remanded to the trial court for further
proceedings consistent with this opinion.

CORRECTED OPINION
http://www.tba.org/tba_files/TSC/kelleyjh.wpd

SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0426.wpd

CASTLETON CAPITAL COMPANY, L.L.C.   v. LUCIUS E. BURCH, III

Court:TCA

Attorneys:                          

W. Gary Blackburn and Mathew R. Zenner, Blackburn & McCune, P.C., for
the Appellant, Lucius E. Burch, III.

Charles W. McElroy, White & Reasor, Nashville, Tennessee, for the
Appellee, Castleton Capital Company, LLC.

Judge: CORLEW

First Paragraph:

The Plaintiff filed suit seeking to recover a deficiency on a loan
executed by the Defendant and another left owing after foreclosure
upon real estate.  The Defendant had purchased a parcel of real estate
from a company in which he was a director, and had assumed
responsibility for repayment of a loan secured by that real estate. 
The Defendant denied liability, and alleged mutual mistake and
negligent misrepresentation surrounding the loan against the lender
because the loan documents he signed contained language regarding
cross-collateralization involving a separate parcel of real estate
formerly owned by the company in which the Defendant was a director,
which real estate was sold two days prior to assumption of the loan
obligations by the Defendant.  Following a bench trial, the Chancellor
granted judgment for the Plaintiff for $134,127.65 and attorneys' fees
totaling $73,417.37, for a total judgment of $207,545.02.   The
Defendant appealed.  We affirm.

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

GREAT RIVER INSURANCE COMPANY V. EDISON AUTOMATION, INC.

Court:TCA

Attorneys:                          

Glenn B. Rose and Angela Childress, Harwell, Howard, Hyne, Gabbert &
Manner, PC, Nashville, Tennessee, for the Appellant, Edison
Automation, Inc.

Randall C. Ferguson,  Branstetter, Kilgore, Stranch & Jennings,
Nashville, Tennessee, for the Appellee, Great River Insurance Company.

Judge: CORLEW

First Paragraph:

The Plaintiff filed suit for Declaratory Judgment seeking the order of
the Court declaring that losses suffered by the insured were not
covered losses under a general policy of business insurance.  At issue
is the interpretation of the insurance contract and a determination as
to whether insurance coverage existed where the insured expended money
and time fabricating parts for a custom project upon the mistaken
belief that it had obtained a sub-contract, but where no such
agreement existed inasmuch as the purchase order upon which the
insured relied was forged by an employee of the insured.  Motions for
Summary Judgment were filed by each party.  The Trial Court granted
the insurance company's motion for Summary Judgment, from which the
insured appealed.  For the reasons stated herein, we affirm the Trial
Court, and also determine that Declaratory Judgment should be granted
in favor of the insurance company, determining that no coverage exists
for the loss suffered by the insured.

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

PATRICK N. LAWSON v. BRIDGET O'MALLEY

Court:TCA

Attorneys:                          

Duncan E. Ragsdale, Memphis, Tennessee, for the appellant, Bridget
O'Malley.

Nancy H. Schiller, Memphis, Tennessee, for the appellee, Patrick N.
Lawson.

Judge: KIRBY

First Paragraph:

This case involves the subject matter jurisdiction of Juvenile Court. 
The mother and the father were divorced by final decree entered in
Chancery Court in 1990.  The final Chancery Court decree provided that
the mother would have custody of the parties' two children, and that
the father would pay child support to the mother.  Subsequently, the
father filed a dependency and neglect action in Juvenile Court, and he
was awarded permanent custody of the children.  Subsequently, he filed
a petition in the Juvenile Court below for child support.  The
Juvenile Court granted the father's petition, ordering the mother to
pay child support to the father.  The mother now appeals.  We reverse,
finding that the Juvenile Court did not have subject matter
jurisdiction to decide matters of child support between these parties,
because the Chancery Court had previously assumed jurisdiction over
such issues.

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

CHARLIE SPELL, III d/b/a CNS MANAGEMENT, ET AL. v. PATTI LABELLE, ET
AL.

Court:TCA

Attorneys:                          

Jef Feibelman, Memphis, Tennessee, for the Appellants, Patti Labelle,
Pattonium, Inc. and Michelle Bellamy Buck d/b/a Bella Marketing.

Reginald L. Eskridge and Janelle R. Eskridge, Memphis, Tennessee, for
the appellee, Charlie Spell, III d/b/a CNS Management and C & S
Consultants.

Judge: FARMER

First Paragraph:

Plaintiff sued Defendant for breach of contract.  Defendant filed a
motion to dismiss the complaint based upon an arbitration provision
contained in the parties' contract.  The trial court entered an order
staying litigation pending arbitration but found the site provision,
providing that all disputes shall be settled by arbitration in
Chicago, Illinois, unconscionable.  The trial court reformed the
parties' contract so that the arbitration would be governed by
Tennessee law and occur in Memphis, Tennessee.  Defendants appealed
this decision.  We reverse in part, affirm in part and remand.

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

WILLIAM W. YORK v. TENNESSEE BOARD OF PROBATION AND PAROLE
PETITION FOR REHEARING

Court:TCA

Judge: CAIN

First Paragraph:

The State of Tennessee has filed a Petition to Rehear in this case
asserting that the February 17, 2004 decision of this Court is in
conflict with Davis v. Maples, No. M2002-02564-COA-R3-CV, 2003 WL
22002660 (Tenn.Ct.App. Aug. 25, 2003).

PETITION FOR REHEARING
http://www.tba.org/tba_files/TCA/yorkwmw_pet.wpd

STATE OF TENNESSEE v. STANLEY RAY DAVIS IN RE: RAY D. DRIVER, d/b/a
DRIVER BAIL BONDS

Court:TCCA

Attorneys:                          

Joel H. Moseley, Sr., Nashville, Tennessee, for the appellant, Ray D.
Driver, d/b/a Driver Bail Bonds.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William Paul Phillips, District Attorney
General; and Michael O. Ripley, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

Ray D. Driver appeals the Campbell County Criminal Court's ordering
that his bail bonding company, Driver Bail Bonds, pay Stanley Ray
Davis's fine and court costs after Mr. Davis failed to appear at a
general sessions court probation hearing.  The appellant claims that
T.C.A. S 40-11- 138(b) relieved his company from liability under the
bond when the defendant pled guilty and was sentenced by the general
sessions court.  He also claims that his company is not liable for the
defendant's fine and court costs because the defendant's bail bond did
not state that Driver Bail Bonds would be responsible for them.  We
hold that Driver Bail Bonds remained obligated under the bond and that
the company must pay the fine and court costs.  The trial court is
affirmed.

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

STATE OF TENNESSEE v. PAUL GRAHAM

Court:TCCA

Attorneys:                          

Carrie W. Gasaway, Clarksville, Tennessee, for the appellant, Paul
Graham.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; John Wesley Carney, Jr.,
District Attorney General; and Arthur F. Bieber, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant was convicted by a jury of second degree murder of his
wife.  The defendant appeals his conviction and sentence and alleges
the following errors: (1) the evidence was insufficient to support the
conviction; (2) the admission of hearsay testimony and failure to give
a curative instruction; (3) the admission of expert opinion that the
death was a result of homicidal violence when cause was undetermined;
(4) cumulative errors required a new trial; and (5) improper
sentencing. After review, we conclude that there is no reversible
error and affirm the conviction and sentence.

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

Constitutionality of HB 2627 Regarding Recognition of Same-Sex Civil
Unions or Domestic Partnerships

Date: April 19, 2004

Opinion Number: 04-066                         

http://www.tba.org/tba_files/AG/2004/op66.pdf

Assessment of House Bill 2633 / Senate Bill 2594

Date: April 20, 2004

Opinion Number: 04-067                        

http://www.tba.org/tba_files/AG/2004/op67.pdf

Constitutionality of House Bill 3592

Date: April 21, 2004

Opinion Number: 04-068                         

http://www.tba.org/tba_files/AG/2004/op68.pdf

Constitutionality of SB 3217 Amending Title 40, Chapter 39, Regarding
Sex Offenders

Date: April 21, 2004

Opinion Number: 04-069                         

http://www.tba.org/tba_files/AG/2004/op69.pdf

Duties of Jail Inspectors under Tenn. Code Ann. S 41-4-116

Date: April 21, 2004

Opinion Number: 04-070                         

http://www.tba.org/tba_files/AG/2004/op70.pdf

Preparation and Use of Forms By Courts; Practice of Law

Date: April 21, 2004

Opinion Number: 04-071                         

http://www.tba.org/tba_files/AG/2004/op71.pdf

Charitable Gaming Implementation Law

Date: April 21, 2004

Opinion Number: 04-072                          

http://www.tba.org/tba_files/AG/2004/op72.pdf

Charter Schools: Application/Denial Procedure for Type II Charter
Schools

Date: April 21, 2004

Opinion Number: 04-073                          

http://www.tba.org/tba_files/AG/2004/op73.pdf

Constitutionality of Decoupling Former Governors' Retirement Allowance
from Increase in Governor's Salary

Date: April 22, 2004

Opinion Number: 04-074                        

http://www.tba.org/tba_files/AG/2004/op74.pdf

Vacancy on County Commission

Date: April 23, 2004

Opinion Number: 04-075                         

http://www.tba.org/tba_files/AG/2004/op75.pdf

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