Update your contact information!
Now you can let the TBA know of your new contact information over the
web. Just follow the link below and we'll update your record in our
database.

Today's Opinions: July 12, 2005
Volume 11 — Number 131
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.
02 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
01 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

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


STATE OF TENNESSEE v. EDWIN GOMEZ and JONATHAN S. LONDONO
CORRECRED OPINION (ORIGINALLY ISSUED 4-15-2005)

Court:TSC

Attorneys:                          

Glenn R. Funk and Cynthia M. Fort, Nashville, Tennessee, attorneys for
Appellant, Edwin Gomez.

David A. Collins, Nashville, Tennessee, and James Stafford, Houston,
Texas, Attorneys for Appellant, Jonathan S. Londono.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Gordon W. Smith, Associate Solicitor General;
Victor S. (Torry) Johnson III, District Attorney General; and Bret
Gunn and Roger Moore, Assistant District Attorneys General, for the
Appellee, State of Tennessee.

David L. Raybin, Nashville, Tennessee and Wade V. Davies, Knoxville,
Tennessee, for Amicus Curiae, The Tennessee Association of Criminal
Defense Lawyers.

Judge: DROWOTA

First Paragraph:

We granted this appeal to determine whether the defendants are
entitled to relief on their claim that admission of testimony about a
co-defendant's oral statement violated their Sixth Amendment right to
confrontation and whether the defendants' sentences were imposed in
violation of their Sixth Amendment right to trial by jury. We conclude
that admission of testimony about a co-defendant's oral statement
violated the defendants' Sixth Amendment right to confrontation
because the defendants had no prior opportunity to cross-examine the
codefendant. See Crawford v. Washington, __ U.S. __, 124 S. Ct. 1354
(2004). Nevertheless, we conclude that Gomez is not entitled to relief
on this claim because he has failed to preserve it for review and has
failed to establish the prerequisites for obtaining relief via plain
error review. Although Londono preserved the issue for plenary
appellate review, we conclude that he is not entitled to relief
because the constitutional error is harmless beyond a reasonable
doubt. Finally, we conclude that the defendants' sentences were not
imposed in violation of their Sixth Amendment right to jury trial. See
United States v. Booker, __ U.S. __, 125 S. Ct. 738 (2005); Blakely v.
Washington, __ U.S. __, 124 S. Ct. 2531 (2004). Thus, the defendants
are not entitled to relief on this claim. Accordingly, the judgment of
the Court of Criminal Appeals is affirmed.

CORRECTED OPINION
http://www.tba.org/tba_files/TSC/2005/gomeze71205.pdf

MURFREESBORO MEDICAL CLINIC, P.A. v. DAVID UDOM
CORRECTED OPINION (ORIGINALLY ISSUED 6-29-2005)

Court:TSC

Attorneys:                          

Douglas B. Janney, III, Nashville, Tennessee, for the appellant, David
Udom.

Josh A. McCreary, Murfreesboro, Tennessee, for the appellee,
Murfreesboro Medical Clinic, P.A.

Judge: BARKER

First Paragraph:

The issue presented in this case is whether a covenant not to compete
is enforceable between a physician and his former employer, a private
medical clinic. The trial court concluded that the non-compete
agreement was enforceable and enjoined the physician from establishing
a medical practice at a location within the restricted area. The Court
of Appeals affirmed the trial court's decision that the non-compete
agreement was enforceable, but reversed the grant of the temporary
injunction and remanded the case to the trial court for further
determinations with respect to the agreement's "buy-out" provision.
After a thorough review of the issues presented, including
considerations of public policy, we reverse the Court of Appeals'
judgment. We hold that except for those specifically prescribed by
statute, physicians' covenants not to compete are unenforceable and
void.

CORRECTED OPINION
http://www.tba.org/tba_files/TSC/2005/murfreesborom71205.pdf

ED THOMAS BRUMMITTE, JR. v. ANTHONY LAWSON, ET AL.

Court:TCA

Attorneys:                          

Douglas T. Jenkins, Rogersville, Tennessee, for Appellants, Anthony
Lawson and Kathy Lawson.

Joseph E. May, Mount Carmel, Tennessee, for Appellee, Ed Thomas
Brummitte.

Judge: LEE

First Paragraph:

This appeal arises out of a dispute over the proper location of the
boundary line between property of the plaintiff and property of the
defendants. The trial court held that the boundary line was as
established by the plaintiff's surveyor. On appeal, the defendants
argue that the trial court's judgment should be vacated for failure to
join necessary parties or reversed because the evidence preponderates
against the trial court's findings as to the proper location of the
disputed boundary line. It is our determination that only the
plaintiff's and the defendants' propertyrights were affected by the
trial court's ruling and, therefore, we hold that there was no failure
to join any necessary parties in the case. We further hold that the
evidence does not preponderate against the trial court's conclusion as
to the proper location of the boundary line. The judgment of the trial
court is affirmed and the cause is remanded.

http://www.tba.org/tba_files/TCA/2005/brummittee71205.pdf

KEITH EDWARD GARRETT, v. PRISCILLA LOUISE GARRETT, et al., ESTATE OF
LUTHER GASTON GARRETT
CORRECTED OPINION (ORIGINALLY ISSUED 5-27-2005)

Court:TCA

Attorneys:                          

Thomas Harding Potter, Nashville, Tennessee, for Appellant. 

James P. Romer, Jamestown, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

In this second appeal of this case, the Trial Court had ruled that
appellee was entitled to a dwelling house and all improvements on land
owned by the Deceased. Appellant appeals this and numerous issues. We
affirm.

CORRECTED OPINION
http://www.tba.org/tba_files/TCA/2005/garrettk71205.pdf

CHRISTINE PAMELA SCHOOF GOFORTH v. TERRY JAMES GOFORTH

Court:TCA

Attorneys:                          

Jeffery L. Stimpson of Munford, Tennessee for Appellant, Christine
Pamela Schoof Goforth

No appearance by Appellee

Judge: CRAWFORD

First Paragraph:

This is an appeal from a final decree of divorce as it concerns
custody of the parties' children. The trial court awarded primary
residential custody to Father and provided for visitation with Mother.
Mother appeals asserting that, pursuant to the factors set out in
T.C.A. B36-6-106, she should have been named primary residential
parent. We affirm

http://www.tba.org/tba_files/TCA/2005/goforthc71205.pdf

SPENCER D. LAND, ET AL. v. JOHN L. DIXON, ET AL.

Court:TCA

Attorneys:                          

James R. McKoon and John R. Hegeman, Chattanooga, Tennessee, for the
Appellants, Spencer D. Land and Action Building and Development, LLC.

Roger W. Dickson and James T. Williams, Chattanooga, Tennessee, for
the Appellees, John L. Dixon, Henry Glascock, John L. Dixon &
Associates, Inc., and The Glascock Company d/b/a The Henry B. Glascock
Company.

Judge: LEE

First Paragraph:

This action arises from a sale of real estate by auction. Plaintiffs,
the high bidders on the property, sued the auctioneer and the real
estate broker, alleging professional negligence in conducting the
auction, misrepresentation, and violation of the Tennessee Consumer
Protection Act. The trial court granted the Defendants' motion for
dismissal of the complaint for failure to state a claim upon which
relief can be granted, pursuant to Tenn. R. Civ. P. 12.02(6), and the
Plaintiffs appeal. After careful review, we affirm the trial court's
dismissal of Plaintiffs' cause of action based on misrepresentation
and alleged violation of the Consumer Protection Act, but vacate the
dismissal of the claim for professional negligence, and remand for
trial.

http://www.tba.org/tba_files/TCA/2005/lands71205.pdf

RHONDA (QUALLS) NEWMAN v. GARY RONALD NEWMAN

Court:TCA

Attorneys:                          

G. Kline Preston, IV, Nashville, Tennessee, for the appellant, Gary
Ronald Newman.

Ed Neal McDaniel, Savannah, Tennessee, for the appellee, Rhonda
(Qualls) Newman.

Judge: KIRBY

First Paragraph:

This appeal involves a charge of civil contempt. The plaintiff wife
and defendant husband were divorced by final decree entered in May
2001. In the final decree, the husband was ordered to pay the wife
alimony in futuro as well as marital debts. He did not do so. In
December 2003, the wife filed a petition in the trial court, seeking
to hold the husband in contempt as well as an award of the
alimonyarrearage. Thewife gave the husband notice of the contempt
proceedings bymailing a copy of the petition and notice of hearing to
the husband's counsel of record. At the hearing, the husband's counsel
moved to dismiss the petition for contempt, arguing that the husband
had not received proper notice of the hearing. This motion was denied,
and the husband was held in contempt of court and ordered jailed until
the contempt was purged. The husband nowappeals. We affirm, concluding
that the husband received sufficient notice of the petition for
contempt.

http://www.tba.org/tba_files/TCA/2005/newmanr71205.pdf

ARLEN WHISENANT v. BILL HEARD CHEVORLET, INC.

Court:TCA

Attorneys:                          

Charles A. Sevier and James E. King, Jr., of Memphis, for Appellant,
Bill Heard Chevorlet, Inc.

Kevin A. Snider of Germantown for Appellee, Arlen Whisenant

Judge: CRAWFORD

First Paragraph:

Appellee brought suit against Appellant, a car dealership, after
experiencing problems with purchased vehicle. Among other things,
Appellee alleged fraud in the inducement. Appellant sought to enforce
arbitration agreement in the contract for sale. The trial court ruled
that, under Tennessee law, claims of fraud in the inducement are not
arbitrable. Appellant appeals the trial court's judgment. Finding no
error, we affirm.

http://www.tba.org/tba_files/TCA/2005/whisenanta71205.pdf

CORNELIUS RICHMOND v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Cornelius Richmond, Henning, Tennessee, Pro Se.

Paul G.Summers, Attorney General and Reporter; Rachel
E.Willis,Assistant Attorney General; and William L. Gibbons, District
Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Cornelius Richmond, appeals the Shelby County Criminal
Court's dismissal of his petition for post-conviction relief from his
convictions for seven counts of aggravated robbery. He claims that
Tennessee's Post-Conviction Procedure Act as applied to his case
violates the due process clause and that the trial court erred in
sentencing. We affirm the trial court.

http://www.tba.org/tba_files/TCCA/2005/richmondc71205.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