Opinion Flash

May 18, 2004
Volume 10 — Number 096

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


FREEMAN INDUSTRIES LLC v. EASTMAN CHEMICAL COMPANY, ET 

Court:TCA

Attorneys:                          

John S. Bingham, Kingsport, Tennessee, for the appellant, Freeman
Industries LLC.

William T. Gamble, Kingsport, Tennessee, and Thomas Demitrack,
Cleveland, Ohio, for the appellee, Eastman Chemical Company.

S. Morris Hadden, Kingsport, Tennessee, for the appellees, Hoechst
Aktiengesellschaft; Nutrinova Nutrition Specialties & Food
Ingredients, GmbH; Daicel Chemical Industries, Ltd.; and Nippon Gohsei
Industries, Ltd (Michael D. Blechman and Jennifer B. Patterson, New
York, New York, of counsel for the appellees, Hoechst
Aktiengesellschaft and Nutrinova Nutrition Specialties & Food
Ingredients, GmbH; Herbert S. Washer and Jennifer Wendy, New York, New
York, of counsel for the appellee, Daicel Chemical Industries, Ltd.;
Eugene Illovsky and Peter Stern, Walnut Creek, California, of counsel
for the appellee, Nippon Gohsei Industries, Ltd.).

Judge: SUSANO

First Paragraph:

In this antitrust case, Freeman Industries LLC ("Freeman") sued
Eastman Chemical Company ("Eastman") and others for damages, alleging
that the defendants engaged in the illegal price-fixing of sorbates, a
generic label for several food preservatives.  Freeman, who purchased
products containing sorbates from entities in New York State, brought
suit under the Tennessee Trade Practices Act ("the TTPA") and pursuant
to a theory of unjust enrichment.  In addition, Freeman sought class
certification for all other individuals and entities similarly
situated in thirty-five states, including New York, but,
significantly, not including the state of  Tennessee.  Following a
hearing on the defendants' motion to dismiss, the trial court granted
the motion with respect to the TTPA claim, holding that the TTPA does
not apply to indirect purchasers or out-of-state transactions.  At a
subsequent hearing, the trial court denied Freeman's motion for class
certification; and also denied the defendants' motion for summary
judgment on Freeman's unjust enrichment claim.  Both sides appeal. 
Because we find that the trial court reached a conclusion that is
contrary to the decision of this court in the case of Sherwood v.
Microsoft Corp., No. M2000-01850-COA-R9-CV, 2003 WL 21780975 (Tenn.
Ct. App. M.S., filed July 31, 2003) (Tenn. R. App. P. 11 application
pending) - which decision was released after the trial court rendered
its decision - we  modify the trial court's judgment by deleting that
portion of the court's decision holding the TTPA does not apply to
indirect purchasers.  In all other respects, we affirm the trial
court's judgment.

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

BEVERLEY MILLER, ET AL. v. UNITED AUTOMAX

Court:TCA

Attorneys:                          

Kevin A. Snider of Germantown For Appellants, Beverley Miller and
Cassandra Meyer

Gary C. McCullough of Germantown For Appellee, United Automax

Judge: CRAWFORD

First Paragraph:

Appellants sued Appellee on theories of common law misrepresentation
and violation of the Tennessee Consumer Protection Act, arising from
the sale of a used vehicle.  A jury returned a verdict for Appellants
on both theories and Appellants elected to take their remedy under the
common law claim, which included an award of punitive damages.  The
trial court denied Appellants' prayer for attorney fees, which were
not available under the common law remedy but only under the Consumer
Protection Act claim.  Having been denied attorney fees, Appellants
requested that they be allowed to amend their election of remedies. 
This request was denied.  Appellants appeal.  We affirm.

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

STATE OF TENNESSEE v. TERRY R. McCULLOCH

Court:TCCA

Attorneys:                          

Kent L. Booher, Lenoir City, Tennessee, for the appellant, Terry R.
McCulloch.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; J. Scott McCluen, District Attorney
General; and Frank A. Harvey, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Terry R. McCulloch, pled guilty to DUI, third offense,
and driving on a revoked license, reserving as a certified question of
law whether the trial court erred in denying his motion to suppress
evidence obtained as a result of a driver's license roadblock stop. 
On appeal, he argues that the roadblock stop was unconstitutional. 
Following our review, we reverse the judgment of the trial court and
dismiss the charges against the defendant.

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

STATE OF TENNESSEE v. CAREY STANFORD RICHMOND

Court:TCCA

Attorneys:                          

Larry S. Weddington, Bristol, Tennessee, for the Appellant, Carey
Stanford Richmond.

Paul G. Summers, Attorney General & Reporter; Michelle R. Chapman,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Robert H. Montgomery, Assistant District Attorney
General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Carey Stanford Richmond, appeals from the Sullivan
County Criminal Court's imposition of incarcerative sentencing for
numerous conviction offenses and for an additional probation
violation.  She claims that she was entitled to alternative sentences,
and because we disagree, we affirm.

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

STATE OF TENNESSEE v. REGINALD STACY SUDDERTH

Court:TCCA

Attorneys:                          

Herbert S. Moncier, Knoxville, Tennessee, for the appellant, Reginald
Stacy Sudderth.

Paul G. Summers, Attorney General and Reporter; Joseph F. Whalen,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Joseph E. Perrin and Barry Staubus, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

In 1998, the defendant, through former counsel, entered into a letter
agreement with the Blount County District Attorney General which
provided that he would be granted immunity for the murder of Andre
Jackson if he provided information and cooperated in the prosecution
of the murder of Gary Huskey and passed a polygraph examination
administered by the Federal Bureau of Investigation ("FBI") as to the
Huskey murder.  The defendant subsequently was indicted for first
degree murder and conspiracy to commit first degree murder.  He then
filed a motion to dismiss the indictment, claiming, inter alia, that
the polygraph was unfair, that he had not failed the test, and that
the State breached its agreement to provide another polygraph. 
Following hearings, the trial court dismissed the motion, and the
defendant filed an interlocutory appeal.  After review, we affirm the
judgment of the trial court dismissing the motion, but remand for
entry of corrected minutes reflecting that the trial court denied the
defendant's motion to dismiss.

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

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