Opinion FlashAugust 31, 2004Volume 10 — Number 168 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 CONNIE LEE ARNOLD v. STATE OF TENNESSEE Court:TSC Attorneys: Mark A. Brown, Knoxville, Tennessee, for the Appellant-Petitioner, Connie Lee Arnold. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Elizabeth B. Marney, Assistant Attorney General, for the Appellee-Respondent, State of Tennessee. Judge: HOLDER First Paragraph: We granted permission to appeal to determine whether the petitioner's petition for post-conviction relief states a colorable claim of ineffective assistance of counsel. We hold that the petition does state a colorable claim. Therefore, the judgment of the Court of Criminal Appeals is reversed, and the case is remanded to the post-conviction court for the appointment of counsel. http://www.tba.org/tba_files/TSC/arnoldconniel.wpd SHARON TAYLOR v. DOUGLAS BUTLER and CITY AUTO SALES
WITH CONCURRING AND DISSENTING IN PART OPINION
Court:TSC
Attorneys:
Joseph D. Barton, Millington, Tennessee, for the appellant, City Auto
Sales.
Sam F. Cole, Jr., Memphis, Tennessee, for the appellee, Sharon Taylor.
Judge: BARKER
First Paragraph:
We granted permission to appeal in this case to determine whether a
claim for fraudulent inducement to a contract must be submitted to
arbitration when the contract's arbitration clause covers "all claims,
demands, disputes or controversies" and states that it is governed by
the Federal Arbitration Act ("FAA"). We hold that parties may agree
to arbitrate claims of fraudulent inducement despite prohibition of
arbitration of such claims under Tennessee law, and because the
parties in this case specifically agreed that the FAA governs the
arbitration clause, they agreed to arbitrate the claim for fraudulent
inducement of the contract. However, we also find that the
arbitration clause in this case is unconscionable and therefore void
because it reserves the right to a judicial forum for the defendants
while requiring the plaintiff to submit all claims to arbitration.
For these reasons, the trial court's dismissal of the complaint is
overruled, and the decision of the Court of Appeals is affirmed.
http://www.tba.org/tba_files/TSC/taylorsharon_opn.wpd
CONCURRING AND DISSENTING IN PART OPINION
http://www.tba.org/tba_files/TSC/taylorsharon_con.wpd
DAVID B. CLONINGER v. CITY OF DYERSBURG, TENNESSEE, ET AL. Court:TSC - Workers Comp Panel Attorneys: W. Lewis Jenkins, Jr., and Mark L. Hayes, Dyersburg, Tennessee, for the Appellant, David B. Cloninger. John D. Burleson and Latosha Mason Dexter, Jackson, Tennessee, for the Appellees, City of Dyersburg, Tennessee, and TML Risk Management Pool. Judge: ANDERSON First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Chancellor determined that the employer rebutted the statutory presumption that the employee's stroke arose out of his employment as a police officer, see Tenn. Code Ann. S 7-51-201(a)(1) (1998), and that the employee failed to establish that the stroke arose out of his employment. After reviewing the record and applicable authority, we conclude that the evidence in the record does not preponderate against the Chancellor's findings. We therefore affirm the judgment. http://www.tba.org/tba_files/TSC_WCP/cloningerdb.wpd EDWIN R. OLIVER EX REL. EDWIN C. OLIVER v. PROLOGIS TRUST, ET Court:TSC - Workers Comp Panel Attorneys: John Robert Cannon, Jr., Memphis, Tennessee, for appellant, ProLogis Trust. Clyde W. Keenan, Memphis, Tennessee, for appellee, Edwin R. Oliver, Individually as next friend of Edwin C. Oliver, a minor. Judge: WEATHERFORD First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of facts and conclusions of law. In this case the trial court held that ProLogis Trust and Steve Graves were employers of the employee, Edwin C. Oliver pursuant to Tenn. Code Ann. S 50-6-113 and awarded workers' compensation benefits for an injury to his left lower extremity. The sole issue presented for review is whether the defendant ProLogis Trust, at the time of the employee's accident, was the employee's statutory employer as defined by Tenn. Code Ann. S 50-6-113, and therefore liable for workers' compensation benefits. For the reasons discussed in this opinion, we find that the judgment of the trial court should be reversed as to the defendant, ProLogis Trust http://www.tba.org/tba_files/TSC_WCP/oliveredwin.wpd BRADLEY C. FLEET, ET AL. v. LEAMON BUSSELL, ET AL. Court:TCA Attorneys: Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellant, Integon General Insurance. Philip L. Boyd, Rogersville, Tennessee, and Jeffrey W. Helton, Pineville, Kentucky, for the appellees, Bradley C. Fleet and Herbert C. Fleet, Jr. Judge: SUSANO First Paragraph: Bradley C. Fleet and his father, Herbert C. Fleet, Jr., residents of the state of Virginia, sued tortfeasors Leamon Bussell and Clarence Bussell, residents of Claiborne County, seeking damages arising out of an automobile accident in Claiborne County involving vehicles driven by the plaintiff Bradley C. Fleet and the defendant Leamon Bussell. The plaintiffs caused process to be served upon their uninsured motorist carrier, Integon General Insurance ("Integon"). The trial court granted the plaintiffs' motion for summary judgment against Integon, finding that Virginia law - which is indisputably applicable in this case - permits the stacking of uninsured motorist/underinsured motorist ("UM/UIM") coverage. Integon appeals. We reverse the trial court's decree granting the plaintiffs summary judgment. Further, we grant Integon's motion for summary judgment and dismiss the plaintiffs' claim against Integon. http://www.tba.org/tba_files/TCA/fleetb.wpd MITCHELL LLOYD MAGILL v. MARY R. MAGILL
Court:TCA
Attorneys:
Scarlett Beaty Latham, Albany, Kentucky, for the appellant, Mitchell
Lloyd MaGill.
Tom McFarland, Kingston, Tennessee, for the appellee, Mary R. MaGill.
Judge: SUSANO
First Paragraph:
This is a divorce case. The trial court granted Mary R. MaGill
("Wife") a divorce based upon the inappropriate marital conduct of her
spouse, Mitchell Lloyd Magill ("Husband"); awarded Wife rehabilitative
alimony of $600 per month for four years, plus attorney's fees of
$600; and divided the parties' marital property. Husband appeals the
trial court's award of rehabilitative alimony. In a separate issue,
Wife contends that the trial court failed to divide marital assets in
the form of two businesses, i.e., MaGill Electric and C Lounge. She
also seeks an award of damages for a frivolous appeal. We affirm.
http://www.tba.org/tba_files/TCA/magillml.wpd
ROANE COUNTY v. WESTON TUCKER, ET AL.
Court:TCA
Attorneys:
Tom McFarland, Kingston, Tennessee, for the appellant, Roane County.
Jack H. McPherson, Jr., Kingston, Tennessee for the appellees, Weston
Tucker and Mary Louise Tucker.
Judge: SUSANO
First Paragraph:
Weston Tucker and Mary Louise Tucker ("the defendants") subdivided and
sold land in Roane County for residential use. Roane County filed a
declaratory judgment action against the defendants contending that the
defendants "have failed to have a subdivision plat approved by the
Regional Planning Commission" and that the new road/easement
constructed by the defendant is unpaved and "approximately thirteen
(13) feet wide", and "drainage has generated a complaint by a
neighboring property owner." Roane County asked the court to, among
other things, declare that the land in question is subject to the
Roane County Subdivision Regulations ("the regulations"); grant
injunctive or other relief; enforce the regulations; and declare the
rights and/or liabilities of each party under the regulations. In
their answer, the defendants contend that an official in the Roane
County Zoning Office represented to them that the subdivision of land
into parcels of more than 5 acres does not need approval from the
Roane County Planning Commission ("the planning commission"). The
trial court dismissed the case, finding, among other things, that
Roane County's actions in attempting to prosecute the defendants
civilly and criminally were "discriminatory, arbitrary and
capricious."
http://www.tba.org/tba_files/TCA/roaneco.wpd
STATE OF TENNESSEE v. DAVID LEE BELLAMY WITH CONCURRING OPINION Court:TCCA Attorneys: Julie A. Rice, Knoxville, Tennessee, for the appellant, David Lee Bellamy Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; Greeley Wells, District Attorney General; and Rebecca Davenport, Assistant District Attorney General, for the appellant, State of Tennessee. Judge: SMITH First Paragraph: The appellant, David Lee Bellamy, plead guilty to violation of an habitual traffic offender order, two counts of reckless aggravated assault, four counts of reckless endangerment, driving under the influence, driving under the influence, fourth offense, improper passing, and driving left of center, with the sentence to be determined by the trial court. After a sentencing hearing, the trial court sentenced the appellant to an effective sentence of twelve years. Unsatisfied with the denial of alternative sentencing, the appellant now appeals. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/bellamydavidl_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/bellamydavidl_con.wpd Legal Relationship Between Tennessee Commission of Indian Affairs and Tennessee Native American Convention and Advisory Council of the Tennessee Indian Affairs Date: August 24, 2004 Opinion Number: 04-138 http://www.tba.org/tba_files/AG/2004/op138.pdf Judicial Residence Date: August 24, 2004 Opinion Number: 04-139 http://www.tba.org/tba_files/AG/2004/op139.pdf Sales Tax Exemption for Energy Fuels Sold Directly to Consumer for Residential Use Date: August 26, 2004 Opinion Number: 04-140 http://www.tba.org/tba_files/AG/2004/op140.pdf PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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