Understanding the New Limited Liability Company Act
May 18 - Tennessee Bar Center, Nashville

An all new Limited Liability Company Act is moving its way through the
Tennessee General Assembly. The new act will make sweeping changes to
Tennessee's current LLC laws.  Attend an in-depth seminar conducted by
the TBA committee that drafted the new act to learn how it will affect
LLC practice here in Tennessee.

Today's Opinions: May 5, 2005
Volume 11 — Number 085
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
06 New Opinion(s) from the Tennessee Court of Appeals
05 New Opinion(s) from the Tennessee Court of Criminal Appeals
06 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. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • 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


JAMES EDWARD DUNN v. KNOX COUNTY SHERIFF'S DEPARTMENT MERIT SYSTEM
COUNCIL, ET AL.

Court:TCA

Attorneys:                          

MaryAnn Stackhouse, Deputy Knox County Law Director, Knoxville,
Tennessee, for the appellant, Knox County Sheriff's Department Merit
System Council.

Herbert S. Moncier and David S. Wigler, Knoxville, Tennessee, for the
appellee, James Edward Dunn.

Judge: SUSANO

First Paragraph:

Following a hearing, the Knox County Sheriff's Department Merit System
Council ("the Council") voted to uphold Sheriff Tim Hutchison's
termination of the plaintiff, James Edward Dunn. Dunn filed a petition
for writ of certiorari in the trial court. He also filed a separate
complaint in the same court alleging that the Council had violated the
Open Meetings Act. Each side filed a motion for summaryjudgment on
this latter issue. The trial court denied both motions. The trial
court then held that the Council's decision to uphold Dunn's
termination was supported by material evidence; but the court remanded
the case to the Council, because the court held that the Council had
failed to follow one of its procedural rules. Both parties have raised
issues on appeal. We affirm.

http://www.tba.org/tba_files/TCA/2005/dunnj50505.pdf

KEVIN EASLEY v. LARRY C. BAKER AND GARY H. BAKER d/b/a LEGEND'S BAR
AND GRILL

Court:TCA

Attorneys:                          

Tusca R.S. Alexis and Luvell L. Glanton, Nashville, Tennessee,
attorneys for the appellant, Kevin Easley.

Randolph A. Veazey, Nashville, Tennessee, attorney for the appellees,
Larry C. Baker and Gary H. Baker d/b/a Legend's Bar and Grill.

Judge: CAIN

First Paragraph:

The unsuccessful Plaintiff, Kevin Easley, appeals the trial court's
grant of summary judgment in favor of Larry G. and Gary H. Baker,
d/b/a Legend's Bar and Grill. On appeal, Easley argues that the record
presents a genuine issue of fact on the question of whether Defendants
provided adequate notice of a dangerous condition. We affirm the trial
court.

http://www.tba.org/tba_files/TCA/2005/easleyk50505.pdf

MARTHA HALLOWELL v. VESTCO, INC., d/b/a WENDY'S, ET AL.

Court:TCA

Attorneys:                          

Beth Stricklin Bates of Jackson For Appellant, Martha Hallowell

Paul G.Summers, Attorney General and Reporter; Warren A.Jasper,
Assistant Attorney General For Appellee, Commissioner James Neeley

Judge: CRAWFORD

First Paragraph:

Appellant was asked to leave her job after she failed to comply with
an order from her supervisor to comply with the dress code. Appellant
was denied unemployment benefits because of work-related misconduct
which was affirmed by the Board of Review. Appellant filed a Petition
for Judicial Review in the chancery court. The chancery court affirmed
the Board of Review and Appellant appeals. We affirm.

http://www.tba.org/tba_files/TCA/2005/hallowellm50505.pdf

WILLIAM EDWARD HARGROVE v. MERRIELLEN HARGROVE

Court:TCA

Attorneys:                          

Clifford K. McGown, Jr., Waverly, TN, for the appellant Merriellen
(Hargrove) Warstler

Michael U. King, Huntingdon, TN, for the appellee William Edward
Hargrove

Judge: KIRBY

First Paragraph:

This case is about post-divorce modification of child support. At the
time of the parties' divorce, they adopted a permanent parenting plan
which designated the father as the primary residential parent of the
parties' son and the mother as the primary residential parent of the
parties' daughter. Each had a child support obligation to the other,
which was offset with the father paying the difference to the mother.
The daughter graduated from high school. As a result, the father's
child support obligation to the mother was terminated, and the mother
was ordered to pay increased child support to the father for their
son. The trial court also ordered the mother to reimburse the father
for the son's health insurance premiums and to pay the father's
attorney's fees. The mother appeals, arguing that her child support
obligation could not be modified because the evidence did not indicate
a significant variance in the mother's income as required by Tennessee
law. We affirm the ruling of the trial court as modified.

http://www.tba.org/tba_files/TCA/2005/hargrovew50505.pdf

IN RE ADOPTION OF JOHN ALLEN KLESHINSKI AND KEVIN RAY KLESHINSKI
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

Susan E. McCown, Fayetteville, Tennessee, for the appellant, Julia
Elizabeth Kleshinski.

N. Andy Myrick, Jr., Fayetteville, Tennessee, for the appellees,
Chirlena Jean Kleshinski and John Edward Kleshinski.

Judge: KIRBY

First Paragraph:

This is a termination of parental rights case. The mother and father
were married, and two sons were born during the marriage. The father
physically abused the mother during the marriage. In 1996, the parties
divorced. Later in 1996, a consent order was entered giving the father
custody of the children. The order did not require the mother to pay
child support. Both parties remarried, and the mother moved to
Alabama. The mother exercised visitation with the children until the
early part of 1999. Around that time, the mother stopped visiting the
children entirely. The father claimed that he did not know why the
mother stopped visiting, and the mother said that the father and his
new wife threatened her with physical harm if she attempted to see her
sons. About four and a half years after the mother's last attempt to
visit with the children, the father and his new wife filed this
petition to terminate the mother's parental rights and to permit the
father's new wife to adopt the children. The father and his new wife
asserted that the mother had abandoned the children by willfully
failing to support or visit them. The trial court terminated the
mother's parental rights but declined to permit the adoption at that
time. The mother now appeals. We reverse the finding of the willful
failure to support and affirm the finding of willful failure to visit.
However, we vacate the termination of parental rights on the basis
that the trial court failed to make specific written findings
regarding the best interest of the children, and remand for further
proceedings on this issue.

http://www.tba.org/tba_files/TCA/2005/kleshinskij50505.pdf

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/2005/kleshinskij_con50505.pdf

JOYCE NIPPER v. AXTROM INDUSTRIES, INC. ET AL.

Court:TCA

Attorneys:                          

Richard E. Spicer, Nashville, Tennessee, for the appellant, Avanti USA
Ltd.

Betty Lou Taylor and Christi L. Dalton, Hartsville, Tennessee, for the
appellee, Joyce Nipper.

Judge: KOCH

First Paragraph:

This products liability action involves the explosion of a pepper
spray product. The purchaser filed suit in the Circuit Court for
Trousdale County against the product's manufacturer and the store that
sold her the product. After the manufacturer filed an amended answer
asserting comparative fault of the manufacturer of one of the
product's component parts, the plaintiff filed an amended complaint
naming the component's manufacturer as an additional defendant.
However, the plaintiff failed to cause a summons to be issued until
more than ninety days after the filing of the amended answer. The
component's manufacturer moved to dismiss the amended complaint
because the summons had not been timely issued in accordance with
Tenn. Code Ann. B 20-1-119 (Supp. 2004). After the trial court denied
its motion, the component's manufacturer filed an application for a
Tenn. R. App. P. 10 appeal. We have determined that the trial court
departed from the accepted and usual course of judicial proceedings.
Accordingly, we grant the component part's manufacturer's application
for an extraordinary appeal and vacate the trial court's order denying
its motion to dismiss.

http://www.tba.org/tba_files/TCA/2005/nipperj50505.pdf

STATE OF TENNESSEE v. AARON EDWIN AYTES

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
Assistant Attorney General; WilliamE. Gibson, District Attorney
General; and John Moore, Assistant District Attorney General, for the
Appellant, State of Tennessee.

David N. Brady, District Public Defender; and Cynthia S. Lyons and
John B. Nisbet, III, Assistant District Public Defenders, for the
Appellee, Aaron Edwin Aytes.

Judge: WITT

First Paragraph:

This is a state appeal from the Cumberland County Criminal Court's
suppression of a handgun seized pursuant to a warrantless search of
the defendant's vehicle. Because a "good faith" exception to the
exclusionary rule has not been adopted as a facet of the state
constitution, we affirm.

http://www.tba.org/tba_files/TCCA/2005/aytesa50505.pdf

EDWARD BEARD v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Edward Beard, pro se

Paul G. Summers, Attorney General and Reporter; David E. Coenen,
Assistant Attorney General; Garry G. Brown, District Attorney General;
and Gary Brown, Assistant District Attorney General, for the Appellee,
State of Tennessee

Judge: WEDEMEYER

First Paragraph:

This appeal arises from the post-conviction court's dismissal of the
Petitioner's petition for postconviction relief. The Petitioner,
Edward Beard, pled guilty to one count of rape, and the trial court
sentenced him to eight years in prison, to be served at 100%. The
Petitioner filed a pro se petition for post-conviction relief. The
trial court summarily dismissed the Petitioner's petition because the
Petitioner failed to submit any facts in support of his claims for
relief. Finding no error in the judgment of the post-conviction court,
we affirm the dismissal of the Petitioner's petition for
postconviction relief.

http://www.tba.org/tba_files/TCCA/2005/bearde50505.pdf

STATE OF TENNESSEE v. KATHY CHANCE CUTSHAW

Court:TCCA

Attorneys:                          

Joseph Costner, Maryville, Tennessee (at trial) and Julie A.Rice,
Knoxville, Tennessee (on appeal) for the appellant, Kathy Chance
Cutshaw.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Mike Flynn, District Attorney General; and
Ellen Berez, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Kathy Chance Cutshaw, was convicted by a jury of
aggravated assault by use or display of a deadly weapon, a Class C
felony. See Tenn. Code Ann. S 39-13-102(a)(1)(B), (d)(1). Following a
sentencing hearing, the trial court sentenced the Defendant as a Range
I standard offender to four years and six months, to be served in
split confinement. The Defendant now appeals her sentence, contending
that the trial court erred in ordering her to serve any time in
confinement. We modify the Defendant's sentence to four years but
otherwise affirm the trial court's judgment.

http://www.tba.org/tba_files/TCCA/2005/cutshawk50505.pdf

STATE OF TENNESSEE v. PHILANDER T. FLEMING

Court:TCCA

Attorneys:                          

James M.Gulley (at trial and on appeal) and Kevin Balkwill (at trial),
Memphis, Tennessee, for the appellant, Philander T. Fleming.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; WilliamL. Gibbons, District Attorney
General; and Glen Baity, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Philander T. Fleming, was convicted by a jury in the
Shelby County Criminal Court of voluntary manslaughter. The trial
court sentenced the appellant to nine years incarceration in the
Tennessee Department of Correction. On appeal, the appellant
challenges the trial court's ruling on his motion to suppress and the
sufficiency of the evidence supporting his conviction. 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/2005/flemingp50505.pdf

STATE OF TENNESSEE v. FRAZIER FASHUN PERRY

Court:TCCA

Attorneys:                          

Clifford K.McGown, Jr., Waverly, Tennessee (on appeal), Jim W.Horner,
District Public Defender and H. Tod Taylor, Assistant Public Defender,
Dyersburg, Tennessee (at trial), for the appellant, Frazier Fashun
Perry.

Paul G.Summers, Attorney General &Reporter; Seth P.Kestner, Assistant
Attorney General; Phillip Bivens, District Attorney General; and Karen
Burns, Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Frazier Fashun Perry, was indicted for: (1) possession
of cocaine over .5 grams with the intent to sell or deliver; (2)
possession of marijuana over one-half ounce with the intent to sell or
deliver; and (3) being a drug felon in possession of a handgun. The
appellant filed a motion to suppress the items seized as a result of
the execution of a "no knock" search warrant. The trial court denied
the motion to suppress and the appellant entered a guilty plea to
possession of more than .5 grams of cocaine with the intent to resell,
a Class B felony. As part of the plea agreement, the appellant
reserved a certified question of law to determine whether exigent
circumstances existed to justify execution of the "no knock" search
warrant in violation of Tennessee Rules of Criminal Procedure 41(e).
The appellant filed a timely notice of appeal. We determine that the
trial court did not err in denying the motion to suppress as the State
proved that exigent circumstances existed which justified the issuance
of a "no knock" search warrant. Therefore, we affirm the judgment of
the trial court.

http://www.tba.org/tba_files/TCCA/2005/perryf50505.pdf

Banning Lobbyists and Their Employers from Boards and Commissions 

Date: May 3, 2005

Opinion Number: 05-067

http://www.tba.org/tba_files/AG/2005/op67.pdf

Constitutionality of House Bill No. 8 / Promotional Contests 

Date: May 3, 2005

Opinion Number: 05-068 

http://www.tba.org/tba_files/AG/2005/op68.pdf

Duty of Health Care Providers to Report Potential DUI or Drug Use /
Right Against Self- Incrimination

Date: May 3, 2005

Opinion Number: 05-069

http://www.tba.org/tba_files/AG/2005/op69.pdf

Voluntary Pre-K for Tennessee Act of 2005 (HB 2333, SB 2317)

Date: May 3, 2005

Opinion Number: 05-070

http://www.tba.org/tba_files/AG/2005/op70.pdf

Abortion Laws/Status

Date: May 3, 2005

Opinion Number: 05-071

http://www.tba.org/tba_files/AG/2005/op71.pdf

Sessions of the Chancery and Circuit Courts of the 1st Judicial
District

Date: May 3, 2005

Opinion Number: 05-072

http://www.tba.org/tba_files/AG/2005/op72.pdf

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi

TBALink HomeContact UsPageFinderWhat's NewHelp

© Copyright 2005 Tennessee Bar Association