Opinion FlashAugust 31, 2004
Volume 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):
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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
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