Opinion Flash

October 7, 2004
Volume 10 — Number 194

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
04 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


SUSAN BEGLEY v. STATE OF TENNESSEE AND TENNESSEE DEPARTMENT OF
TRANSPORTATION
WITH DISSENTING OPINION

Court:TCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Michael B. Leftwich, Assistant Attorney
General, for the Appellant, State of Tennessee.

Gregory K. Haden, Kingsport, Tennessee, for the Appellee, Susan
Begley.

Judge: SWINEY

First Paragraph:

In May of 2000, a car being driven eastbound on Interstate 40 ("I-40")
in Knox County by Jeremy Roark left the travel lane and crossed the
rumble strips onto the inside shoulder of the road where it collided
with a Tennessee Department of Transportation ("TDOT") truck parked
during routine litter pick-up.  Mr. Roark was killed in the accident
and the TDOT employee operating the truck that day, Kenneth Siler, was
injured.  Susan Begley, Mr. Roark's mother ("Plaintiff"), brought suit
against the State of Tennessee.  The case was transferred to the
Claims Commission ("the Commission") and was tried.  The Commission
held, inter alia, that a reasonable person standard applied and that
it was not reasonable for the TDOT truck to be parked on the shoulder.
 The Commission assessed 45% of the fault for the accident to Mr.
Roark and 55% to the State and awarded Plaintiff a judgment for
$300,000.  The State appeals claiming the Commission lacked
jurisdiction, there was insufficient evidence that each element of the
negligence cause of action had been met, and there was insufficient
evidence to support a finding that Mr. Roark was less than 50% at
fault.  We affirm.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCA/begleysusan_dis.wpd

DOUGLAS C. BOONE v. BRIAN MORRIS, ET AL.

Court:TCA

Attorneys:                          

Sam Wallace, Springfield, Tennessee; Gary Rubenstein, Nashville,
Tennessee, for the appellant, Douglas C. Boone.

John D. Richardson and Teresa A. Boyd, Memphis, Tennessee, for the
appellees, Brian Morris, and Madison Security Services.

Alan Sowell, Nashville, Tennessee, for the appellee Major Grubbs.

Judge: COTTRELL

First Paragraph:

After plaintiff took a voluntary nonsuit, he re-filed his personal
injury action within one year of the dismissal relying on the saving
statute.  The trial court granted the defendants' respective motions
for summary judgment and dismissal, finding the second suit
time-barred because plaintiff had not complied with Tenn. R. Civ. P.
41.01.  We conclude that "service" under Tenn. R. 41.01 means service
under Tenn. R. Civ. P. 5, not service of process under Tenn. R. Civ.
P. 4.  We also hold that the defendants moving for summary judgment
did not allege or present evidence that they did not receive the order
of voluntary dismissal and dismissed complaint from the first suit. 
Consequently, we reverse the grant of summary judgment.  We also
conclude that the extension of the statute of limitations set out in
Tenn. Code Ann. S 20-1-119(a) and (b) is not available to a plaintiff
in a lawsuit recommenced, pursuant to the saving statute, after a
nonsuit.  Therefore, we affirm the grant of the motion to dismiss the
defendant who was added after the original defendants named him as a
party responsible for some or all of the injuries complained of.

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

BRENDI  KAPLAN (formerly BUGALLA) v. JOHN A. BUGALLA

Court:TCA

Attorneys:                          

James Glasgow Martin and Gregory Dye Smith, Nashville, Tennessee, for
the appellant, Brenda Bugalla Kaplan.

David William Garrett, Nashville, Tennessee, for the appellee, John A.
Bugalla.

Judge: CAIN

First Paragraph:

This case involves a petition to modify child support.  By court
approved Marital Dissolution Agreement executed May 10, 2002, child
support payable by the father was set at $4,000 per month.  At the
time of the agreement and divorce decree father was earning in excess
of $20,000 per month.  The parties did not appeal the May 10, 2002
judgment, but on September 4, 2002 the mother filed a petition to
increase child support in order to accommodate attendance of the two
children to private school.  The trial judge denied the petition.  We
affirm the action of the trial court.

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

DWAYNE SAMFORD v. JENNIE OGLES, ET AL.

Court:TCA

Attorneys:                          

John D. Drake, Murfreesboro, Tennessee, for the appellant, Dwayne
Samford.

David W. Kious, Murfreesboro, Tennessee, for the appellee, Jennie
Ogles and Snow and Wall Realtors.

Judge: CLEMENT

First Paragraph:

Purchaser of residential property filed this negligent
misrepresentation action against the real estate agent and broker
alleging they knew of flooding, failed to communicate that information
to Plaintiff and thus were liable for negligent misrepresentation. 
The trial court dismissed Plaintiff's complaint on summary judgment
holding that there was no evidence that Defendants misrepresented
their knowledge of the property.  We affirm.

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

STATE OF TENNESSEE v. BRYANT DUNN

Court:TCCA

Attorneys:                          

Charles L. Moffatt, IV, Bristol, Tennessee, for the appellant, Bryant
Dunn.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; H. Greeley Wells, Jr., District
Attorney General; and Rebecca H. Davenport and Joseph Eugene Perrin,
Assistant District Attorneys General, for the appellee, State of
Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Bryant Dunn, pled guilty to theft over one thousand
dollars, a Class D felony, and the Sullivan County Criminal Court
sentenced him to two years incarceration in the Department of
Correction.  The defendant appeals, claiming that the trial court
erred by denying him probation or alternative sentencing.  We affirm
the trial court.

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

DEMETRIUS K. HOLMES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Liddell Kirk, Knoxville, Tennessee, for the appellant.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Randall E. Nichols, District
Attorney General; and Philip Morton, Assistant Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Demetrius K. Holmes, was convicted by a jury of first
degree felony murder and especially aggravated robbery.  The
Defendant's convictions were affirmed on direct appeal.  See State v.
Demetrius K. Holmes, No. E2001-00660-CCA-R3CD, 2002 WL 1611565 (Tenn.
Crim. App., Knoxville, July 23, 2002).  The Defendant subsequently
petitioned for post-conviction relief, alleging that he received
ineffective assistance of counsel at trial, in conjunction with his
motion for new trial, and on direct appeal.  After an evidentiary
hearing, the trial court denied relief.  Finding constitutional error
in the jury instructions provided at the Defendant's trial and
ineffective assistance of appellate counsel in failing to raise the
error on direct appeal, we vacate the Defendant's convictions and
remand this matter for a new trial.

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

STATE OF TENNESSEE v. PATRICK POTTER

Court:TCCA

Attorneys:                          

Steve McEwen, Mountain City, Tennessee (on appeal), and Raymond Mack
Garner, District Public Defender (at trial), for the appellant,
Patrick Potter.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Michael L. Flynn, District
Attorney General; and Robert L. Headrick, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON
 
First Paragraph:

The defendant, Patrick Potter, appeals from the Blount County Circuit
Court's revoking his probation that he received for his guilty pleas
to rape, a Class B felony; reckless endangerment, a Class E felony;
and setting fire to personal property or land, a Class E felony. 
Although the defendant acknowledges that he violated his probation, he
contends that the trial court erred by ordering him to serve the
remainder of his sentences in confinement.  We affirm the judgments of
the trial court.

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

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