Opinion Flash

June 29, 2004
Volume 10 — Number 124

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


IN RE: AMENDMENT TO RULE 19, RULES OF THE TENNESSEE SUPREME COURT

Court:TSC - Rules

Judge: DROWOTA

First Paragraph:

On October 17, 2003, the Court entered an order publishing a proposed
amendment to Rule 19, governing appearances pro hac vice in Tennessee
courts.  The order set a period for the filing of comments by the
public, the bench and the bar.  The Court subsequently extended the
comment period until February 16, 2004.  Among the comments received
by the Court was the "Comment of Tennessee Bar Association Concerning
Proposed Amendment to Tennessee Supreme Court Rule 19 on Pro Hac Vice
Admission."

http://www.tba.org/tba_files/TSC_Rules/rule19_ord.wpd

IN RE: PETITION TO ADOPT PROPOSED SUPREME COURT RULE 44

Court:TSC - Rules

Judge: PER CURIAM

First Paragraph:

On April 14, 2004, the Board of Professional Responsibility ("Board")
filed a "Petition to Reconsider, Alter or Amend" Rule 8, RPC 7.6 and
Rule 44 of the Rules of the Supreme Court of Tennessee.  In summary,
the petition states that the Board "mailed initial registration
packets and forms to twenty-six (26) organizations which were
preliminary [sic] identified as potential intermediary
organizations[.]"  The petition states that the Board has received
responses from a number of those organizations, some of which assert
that they are not intermediary organizations  for purposes of Rule 44.
 The petition asks the Court to alter or amend Rule 8, RPC 7.6 and
Rule 44 "for clarification and guidance to the Board relating to the
issues identified [in the petition]."  The petition, however, does not
explicitly state any particular legal issue(s), nor does it present
the Court with any specific recommendations as to amendments that the
Board deems advisable or necessary.  For the reasons stated below, the
Court respectfully denies the petition.

http://www.tba.org/tba_files/TSC_Rules/rule44_ord.wpd

BURCHELL INSURANCE SERVICES, INC., v. WESTERN SIZZLIN STEAKHOUSE OF
DYERSBURG, SONNY W. DENTON AND RITA M. DENTON

Court:TCA

Attorneys:                          

H. Scott Reams, Morristown, Tennessee, for Appellant.

Mark A. Cowan, Morristown, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

Action by corporation for judgment on promissory notes representing
loans made to partnership resulted in Judgment against defendant
partner for one-half of amount of the loans plus interest and
attorney's fees.  On appeal we affirm.

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

THERESA CALDWELL, ET AL. v. CANADA TRACE, INC.

Court:TCA

Attorneys:                          

W. Ray Jamieson, Memphis, TN, for Appellant Theresa L. Caldwell

William E. Friedman, Memphis, TN, for Appellants M. J. Pocrass & Susan
Pocrass

J. D. Barton, Millington, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves the attachment of a mobile home and its subsequent
transport to a storage facility.  The Appellee sued out an attachment
on the Appellants' mobile home to secure payment of past rent due on a
tenancy at Appellee's trailer park.  Appellee had the mobile home
transported after it was attached and Appellants sued Appellee for
damages to the mobile home.  The Shelby County General Sessions Court
found in favor of Appellants, and Appellee appealed to the Circuit
Court.  The Circuit Court found in favor of Appellee, and Appellants
now appeal to this Court.  For the following reasons, we affirm in
part, reverse in part, and remand for further proceedings.

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

CBM PACKAGE LIQUOR, INC., ET AL., v. THE CITY OF MARYVILLE, ET AL.

Court:TCA

Attorneys:                          

A. Thomas Monceret, Knoxville, Tennessee, for the Appellants, CBM
Package Liquor, Inc. and Celeste B. Meunier.

John C. Duffy, Knoxville, Tennessee, for the Appellees, the City of
Maryville and the ity council for the City of Maryville.

Judge: FRANKS

First Paragraph:

In this case it is argued that the Trial Court erred in approving the
decision of the Appellees, the City of Maryville and the City Council
for the City of Maryville, to issue certificates of compliance to
three applicants as a precondition to each such applicant securing a
license to operate a retail liquor store from the Tennessee Alcoholic
Beverage Commission.  We affirm the judgment of the Trial Court and 
remand

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

DERON A. HATTON v. CSX TRANSPORTATION, INC.

Court:TCA

Attorneys:                          

Patrick S. O'Brien and Jeffrey E. Chod, St. Louis, Missouri; Richard
L. Widerkehr, Chattanooga, Tennessee, attorneys for appellant, Deron
A. Hatton.

Gareth S. Aden and Christopher W. Cardwell, Nashville, Tennessee,
attorneys for appellee, CSX Transportation, Inc.

Judge: INMAN

First Paragraph:

This is a an action for damages under FELA wherein the Plaintiff
claimed that he was negligently exposed to toxic chemicals in the
workplace.  The Defendant pleaded, inter alia, the defense of the
three-year statute of limitations, to which the discovery rule was
applicable.  This issue was bifurcated and tried separately, to the
same jury, which found in favor of the Plaintiff.  On the issues of
liability, causation, and damages [the second phase of the trial] the
jury found in favor of the Defendant.  Plaintiff appeals, claiming
that the issue of the statute of limitation should not have been
bifurcated, that the court should have directed a verdict for the
Plaintiff on account of OSHA violations, and the exclusion-admission
of expert testimony.  Finding no error, the judgment is affirmed.

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

PATRICIA HENDERSON JOLLEY, ET AL. v. WANDA K. HENDERSON

Court:TCA

Attorneys:                          

James B. Johnson, Nashville, Tennessee, and Kevin B. Wilson,
Chattanooga, Tennessee, for the appellant, Patricia Henderson Jolley.

Harry K. Hays, Chattanooga, Tennessee, for the appellant, Howard E.
Henderson, Jr.

Robin L. Miller, Chattanooga, Tennessee, for the appellee, Wanda K.
Henderson

Judge: SUSANO

First Paragraph:

This is a will contest case.  Patricia Henderson Jolley and Howard E.
Henderson, Jr. (collectively "the Contestants") appeal the chancery
court's judgment that they do not have standing to contest their
father's will.   The Contestants contend that the chancery court erred
in addressing the issue of their standing and in other ways.  They
argue that their stepmother, Wanda K. Henderson ("the Executrix"),
failed to raise the standing issue and, as a consequence, waived it. 
They also rely on alleged procedural errors and contend that they do
have standing.  We affirm.

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

LAUREL VALLEY PROPERTY OWNERS ASSOCIATION, INC. v. JAMES P.
HOLLINGSWORTH, III, ET AL.

Court:TCA

Attorneys:                          

L. Lee Kull and Irma G. Freestate, Maryville, Tennessee, for the
appellants, James P. Hollingsworth, III, Sallie Hollingsworth,
Tennessee Mountain Limited Partnership, Tennessee Greystone Limited
Liability Company, Laurel Valley Investments, Inc., and Richard Gross.

Melanie E. Davis, Maryville, Tennessee, for the appellee, Laurel
Valley Property Owners Association, Inc.

Judge: SUSANO

First Paragraph:

Laurel Valley Property Owners Association, Inc. ("the Plaintiff")
filed a declaratory judgment action against James P. Hollingsworth,
III and others pursuant to Tenn. Code Ann. S 29-14-101 et. seq. for a
determination of the "right[s] and responsibilities of the parties"
with respect to a purported easement over private roads owned either
by the Plaintiff or a non-party to this case, Richard G. Heinshon. 
The trial court determined that Mr. Hollingsworth and the other
defendants did not have a right to traverse or otherwise use the
roads.  As a consequence of this holding, the trial court entered a
permanent injunction and ordered the erection of a permanent barrier
on the defendants' property.  We affirm in part and reverse in part.

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

IN THE MATTER OF: THE CONSERVATORSHIP OF CLAYTON O. LOVLACE, III
CLAYTON O. LOVLACE, JR.  v. SUSAN VERLAINE IRVINE LOVLACE

Court:TCA

Attorneys:                          

David L. McGuffey, Chattanooga, Tennessee, for the appellant, Clayton
O. Lovlace, Jr.

James G. Martin, III and Gregory D. Smith, Nashville, Tennessee, for
the appellee, Susan Verlaine Irvine Lovlace.

Judge: FARMER

First Paragraph:

The trial court granted Mother's petition for conservatorship of the
parties' disabled son; enforced MDA provision requiring Father to pay
child support beyond child attaining age of majority; increased
Father's child support obligation; and ordered Father to continue to
maintain life and disability insurance.  We affirm.

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

A.D. Doe and M.A. Doe v. May et al.

Court:TCA

Attorneys:                          

Herbert Moncier, Knoxville, Tennessee, for the appellant.

Mary Ann Stackhouse, Knoxville, Tennessee, for Knox County and the
Sheriff in his official capacity.

Dean B. Farmer, Knoxville, Tennessee, for the Sheriff in his
individual capacity.

Judge: CANTRELL

First Paragraph:

The plaintiff A.D. Doe for himself and his daughter M.A. Doe sued the
Sheriff of Knox County and the County itself for damages when M.A. Doe
was allegedly raped by a deputy sheriff.  The complaint alleged that
the sheriff was liable on his bond and on his oath of office and that
Tenn. Code Ann. S 8-8-302 imposed liability on the County because the
deputy was acting "by virtue of or under color of the office."  The
Circuit Court of Knox County dismissed the complaint against the
Sheriff and the County for the failure to state a claim.  We affirm.

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

ONVIL ROBINSON, ET AL. v. DOROTHY R. CURREY, ET AL.

Court:TCA

Attorneys:                          

Larry L. Crain, Brentwood, Tennessee, for the Appellants, Onvil
Robinson and Lara Fyfe.

William M. Foster, Chattanooga, Tennessee, for the Appellees, Dorothy
R. Currey and Jack L. Currey.

Judge: SWINEY

First Paragraph:

Onvil Robinson and Lara Fyfe  ("Plaintiffs") sued Dorothy R. Currey
and Jack L. Currey  ("Defendants") regarding a condominium unit
Plaintiffs purchased from Defendants.  Plaintiffs based their claims
against Defendants upon the Tennessee Consumer Protection Act, Tenn.
Code Ann. S 47-18-101 et. seq., and the Tennessee Residential Property
Disclosures Act, Tenn. Code Ann. S 66-5-201 et. seq.  Plaintiffs later
conceded the Tennessee Consumer Protection Act did not apply to
Defendants.  The Trial Court granted Defendants summary judgment on
the Tennessee Residential Property Disclosures Act claim.  Plaintiffs
filed a Rule 59 motion to alter or amend, which the Trial Court denied
citing both procedural and substantive problems with Plaintiffs' case.
 Plaintiffs appeal.  We affirm.

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

STATE OF TENNESSEE v. KEWAN JACKSON

Court:TCCA

Attorneys:                          

Kevin E. Childress, Memphis, Tennessee, for the appellant, Kewan
Jackson.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Patience Branham and Vanessa King, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Kewan Jackson, was found guilty by a jury in the Shelby
County Criminal Court of criminally negligent homicide and reckless
aggravated assault.  The appellant received a total effective sentence
of three years in the Shelby County Workhouse.  On appeal, the
appellant challenges the sufficiency of the evidence supporting his
convictions and the refusal of the trial court to remove a juror. 
Upon our review of the record and the parties' briefs, we affirm the
judgments of the trial court.

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

DAVID ALLEN LANE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Douglas L. Payne, Greeneville, Tennessee, for the appellant, David
Allen Lane.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; and Eric D. Christiansen, Assistant
District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, David Allen Lane, appeals both the post-conviction
court's ruling regarding his post- conviction relief and the denial of
his motion to withdraw his guilty plea.   The judgment of the trial
court denying the motion to withdraw the guilty plea is affirmed. 
Because the petitioner was denied the effective assistance of counsel
and because the post-conviction court failed to comply with the
requirements of State v. Boyd, 51 S.W.3d 206 (Tenn. 2000), the
judgment of the post-conviction court vacating and reinstating the
judgment is reversed, the judgment is vacated and the cause is
remanded for proceedings not inconsistent with this opinion.

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

MICHAEL R. LEWIS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

William Dan Douglas, Jr., Ripley, Tennessee, for the Appellant,
Michael R. Lewis.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; Elizabeth T. Rice, District Attorney General; and
Tracey A. Brewer, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Michael R. Lewis, appeals the Lauderdale County
Circuit Court's dismissal of his petition for post-conviction relief. 
On appeal, he claims that ineffectiveness of trial counsel resulted in
an invalid, 2001 jury conviction of reckless aggravated assault and
that post-conviction relief from the conviction is warranted.  Because
the record supports the post-conviction court's findings and
conclusion, we affirm.

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

STATE OF TENNESSEE v. ROBERT L. STEVENSON

Court:TCCA

Attorneys:                          

Brett B. Stein, Memphis, Tennessee, for the appellant, Robert L.
Stevenson.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Betsy Lynn Carnesale, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Shelby County Criminal Court jury convicted the defendant, Robert L.
Stevenson, of burglary of a building, a Class D felony, and the trial
court sentenced him as a career offender to twelve years in the
Department of Correction.  The defendant appeals, claiming (1) that
the evidence is insufficient to support his conviction and (2) that
the trial court erred by allowing the state to impeach him with prior
convictions.  We affirm the judgment of the trial court.

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

Local Governing Body; Local School District; Funding

Date: June 24, 2004

Opinion Number: 04-098                        

http://www.tba.org/tba_files/AG/2004/op98.pdf

Defendant's Liability for Court Costs in Pretrial Diversion Program

Date: June 24, 2004

Opinion Number: 04-099                         

http://www.tba.org/tba_files/AG/2004/op99.pdf

Liability of Statewide Independent Living Council

Date: June 24, 2004

Opinion Number: 04-100                         

http://www.tba.org/tba_files/AG/2004/op100.pdf

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