Opinion FlashOctober 7, 2004Volume 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):
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 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 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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