Opinion FlashJune 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):
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Howard H. Vogel
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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