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Today's Opinions: October 28, 2004
Volume 10 — Number 208
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.
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
05 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
02 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

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 or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.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. • Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.
Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

MICHAEL GUFFY, ET AL. v. TOLL BROTHERS REAL ESTATE, INC., ET AL.

Court:TCA

Attorneys:                          

C. Dewees Berry, IV and Kristin J. Hazelwood, Nashville, Tennessee,
for the appellants, Toll Brothers Real Estate, Inc., and Wilson
Concord, L.P.

Jean Dyer Harrison, Nashville, Tennessee, for the appellees, Michael
Guffy and wife, Rosemary Guffy; Joseph Primm and wife, Jacqueline
Primm; Michael Felks and wife, Jennifer Felks; and Glen Fine and wife,
Theresa Fine.

Judge: SUSANO

First Paragraph:

Toll Brothers Real Estate, Inc., and Wilson Concord, L.P.,
(collectively "Toll Brothers"),  seek review of the trial court's
order denying Toll Brothers' motion to compel arbitration.  Michael
Guffy and his wife, Rosemary Guffy, along with other  plaintiffs (all
plaintiffs being herein collectively referred to as "the Guffys"),
filed separate complaints against Toll Brothers alleging, among other
causes of action, that they were fraudulently induced to enter into an
Agreement of Sale ("the Agreement") with Toll Brothers for the
construction and purchase of a residence.  A provision in the
Agreement provides that disputes between the parties would be
submitted to arbitration.  Based upon this provision, Toll Brothers
moved to stay the court proceedings and to compel arbitration.  The
trial court denied Toll Brothers' motion, finding that the arbitration
provision did not apply to the Guffys' claim of fraudulent inducement
to enter into the contract.  The trial court also held that the
arbitration provision was invalid because it was not initialed or
additionally signed as required by the Tennessee Uniform Arbitration
Act ("the TUAA").  Arguing that the Federal Arbitration Act ("the
FAA") governs the parties' arbitration agreement, Toll Brothers
appeals.   We vacate the trial court's order denying arbitration and
remand for further proceedings.

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

KANTA KEITH, DARLENE KEITH, WALTER JACKSON, and THOMAS A. SNAPP,
Personal Representative of the Estate of Darlene Keith v. GENE ERVIN
HOWERTON and EASY MONEY, INC.

Court:TCA

Attorneys:                          

Donald K. Vowell and Elizabth K. Johnson, Knoxville, Tennessee, for
Appellants.

Craig L. Garrett, Maryville, Tennessee, for Appellees.

Judge: FRANKS

First Paragraph:

The Trial Court awarded plaintiffs' attorneys fees pursuant to the
Consumer Protection Act.  On appeal we modify by increasing the award
of fees.

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

REBECCA PAIGE MULKEY (HURD) v. BRADLEY WARREN MULKEY
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

Stephen L. Gilly, Kingsport, Tennessee, for the Appellant Rebecca
Paige Mulkey (Hurd).

R.B. Baird, III, Rogersville, Tennessee, for the Appellee Bradley
Warren Mulkey

Judge: SWINEY

First Paragraph:

Rebecca Paige Mulkey ("Mother") and Bradley Warren Mulkey ("Father")
were divorced in 1996.  The parties agreed that Mother would be the
primary residential parent of their two minor daughters with Father
having reasonable visitation rights.  Several years later and after
Mother had remarried, Father filed a Petition for Change of Custody
claiming the older child had been physically abused by her
step-father.  The Trial Court temporarily transferred custody of the
children to Father and indicated this arrangement would be reviewed
periodically.  After the older child recanted her allegations of
physical abuse, the Trial Court ordered that she be examined by a
psychiatrist.  An examination was undertaken and the psychiatrist
concluded there was no evidence of abuse "of any kind."  The Trial
Court later entered a judgment and held that its previous temporary
decision to designate Father as the primary residential parent was to
be the final determination.  Mother appeals claiming the Trial Court
erred when it transferred custody of the children to Father because
Father failed to prove there had been a material change in
circumstance.  We agree and reverse the judgment of the Trial Court.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/mulkeyrebeccap_con.wpd

CITY OF CHATTANOOGA v. MARK  T. ROBARDS

Court:TCA

Attorneys:                          

Howard Barnwell, Chattanooga, Tennessee, for the appellant, Mark T.
Robards.

Kenneth O. Fritz, Chattanooga, Tennessee, for the appellee, City of
Chattanooga.

Judge: SUSANO

First Paragraph:

Mark T. Robards, owner of Robards Express, a trucking company, seeks
reversal of the trial court's judgment finding that he violated the
zoning ordinance of the City of Chattanooga by operating a trucking
company on his property.  The trial court determined that Robards'
business is a manufacturing business, a non-conforming use in a
commercial zone.  Robards proffers that his non- conforming use was
grandfathered in by virtue of the fact that the two previous users of
the property used it for similar purposes.  We affirm the judgment of
the trial court.

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

CHARLES H. WEBB v. CHRISTIAN WERNER, ET AL.

Court:TCA

Attorneys:                          

Douglas R. Beier, Morristown, for Appellant Charles H. Webb.

Kenneth W. Ward, Knoxville, for Appellee Allstate Insurance Company.

Judge: LEE

First Paragraph:

This is an automobile accident case wherein the Plaintiff sued the
driver of the other vehicle, Christian Werner, a Swiss citizen, and
Allstate Insurance Company, Plaintiff's uninsured motorist insurance
carrier.  Allstate moved for summary judgment, alleging that since
Plaintiff failed to obtain timely service of process against Werner,
pursuant to Tenn. R. Civ. P. 3, the Plaintiff's action was barred by
the one-year statute of limitations.  The trial court granted Allstate
summary judgment as regards Plaintiff's personal injury claim.  We
affirm the judgment of the trial court in this interlocutory appeal.

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

STATE OF TENNESSEE v. TERRY W. BEAN

Court:TCCA

Attorneys:                          

Amanda McClendon (at trial and on appeal) and Justin Johnson (at
trial), Nashville, Tennessee, for the appellant, Terry W. Bean.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Shelli Neal, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Terry W. Bean, was convicted of vandalism over $1,000,
a Class D felony.  He was sentenced to two years incarceration in the
Tennessee Department of Correction, followed by six years of
supervised probation.  On appeal, the appellant challenges the
sufficiency of the evidence supporting his felony conviction, the
amount of restitution imposed, and the denial of his right to testify.
 Upon our review of the record and the parties' briefs, we affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. WILLIAM H. MORRIS, JR.

Court:TCCA

Attorneys:                          

David N. Brady, District Public Defender, and John B. Nisbet, III,
Assistant Public Defender, for the appellant, William H. Morris, Jr.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; William E. Gibson, District Attorney
General; and William M. Locke, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant, William H. Morris, Jr., challenges the revocation of
his probation, specifically contending that:  (1) the trial court was
without jurisdiction to reinstate his sentence because his
probationary period had expired, (2) the trial court abused its
discretion in reinstating his previous sentence, and (3) the trial
court erred in failing to grant the defendant's request for bond
pending appeal.  After careful review, the judgment of the trial court
is affirmed.

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

Worthless Checks

Date: October 25, 2004

Opinion Number: 04-156

http://www.tba.org/tba_files/AG/2004/op156.pdf

Police Chaplain's Authority to Perform Marriage

Date: October 25, 2004

Opinion Number: 04-157

http://www.tba.org/tba_files/AG/2004/op157.pdf

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