Opinion FlashApril 26, 2004Volume 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):
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. Howard H. Vogel 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 PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! 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