TennBarU, the TBA Elder Law Section and the National Academy of Elder
Law Attorneys Present: Elder Law Basics
August 19-21 - Gaylord Opryland Hotel in Nashville

This program covers the breadth of elder law. The distinguished
faculty for this program includes past NAELA presidents and authors of
several national treatises on elder law. Level of instruction is basic
and intermediate. A unique aspect of this program is its focus on a
case study, in which participants will develop a long-term care plan
under the tutelage of experienced elder law attorneys. This course
provides 15.75 hours of general and one hour dual CLE credit.

Today's Opinions: July 18, 2005
Volume 11 — Number 135
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
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

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


DIANE BUTTON v. MITCHELL WAITE

Court:TCA

Attorneys:                          

Lorie S. Nachlis, San Francisco, California and Marlene Eskind Moses,
Nashville, Tennessee, for the appellant, Mitchell Waite.

Philip Edward Schell, Franklin, Tennessee, for the appellee, Diane
Button. Joanie Lucie Abernathy, Franklin, Tennessee, Guardian Ad
Litem.

Judge: KOCH

First Paragraph:

This extraordinary appeal involves the efforts of a mother to
circumvent the orders of a trial court in Hawaii regarding
psychological counseling for her child. After moving to Tennessee, the
mother declined to accept the Hawaii court's selection of a therapist
for the child and filed a petition in the Chancery Court for
Williamson County for the purpose of frustrating the Hawaii court's
order. The trial court, exercising its temporary emergency
jurisdiction pursuant to Tenn. Code Ann. S 36-6-219 (2001),
countermanded the Hawaii court's order. The child's father then filed
this extraordinary appeal pursuant to Tenn. R. App. P. 10. We have
determined that the trial court's exercise of emergency jurisdiction
so far departs from the accepted and usual course of judicial
proceedings as to require immediate review pursuant to Tenn. R. App.
P. 10. Because the Hawaii court's selection of the child's therapist
does not constitute "an emergency" as contemplated by Tenn. Code Ann.
S 36-6-219, we vacate the trial court's order and remand the case with
instructions to enter an order dismissing the case for lack of
jurisdiction

http://www.tba.org/tba_files/TCA/2005/buttond71805.pdf

CLAUDE L. GLASS v. GEORGE UNDERWOOD, JR.

Court:TCA

Attorneys:                          

Claude L. Glass, Knoxville, Tennessee, pro se, Appellant.

Stephen C. Daves, Knoxville, Tennessee, for the Appellee, George
Underwood, Jr.

Judge: LEE

First Paragraph:

This is a legal malpractice case. The plaintiff sued his former
lawyer, claiming the lawyer was negligent in his representation of the
plaintiff in a case involving alleged racial discrimination. Upon our
finding that the defendant supported his motion for summary judgment
with expert proof that he did not violate the applicable standard of
care in his representation of the plaintiff and our further finding
that the plaintiff submitted no expert proof that the defendant did
violate the applicable standard of care, we affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TCA/2005/glassc71805.pdf

EDWARD A. MILLER v. KERRY KELK

Court:TCA

Attorneys:                          

Wanda G. Sobieski and Diana M. Messer, Knoxville, Tennessee, for the
Appellant Edward A. Miller.

James R. Hickman, Jr., Sevierville, Tennessee, for the Appellee Kerry
Kelk.

Judge: SWINEY

First Paragraph:

On July 10, 1997, Edward A.Miller ("Father") was designated the
primary residential parent for the parties minor child. Kerry L. Kelk
("Mother") was not ordered to pay any child support at that time as
that order was silent on the issue of child support. No order
requiring Mother to pay child support was entered until May 26, 1999.
In the May 1999 order, the Trial Court refused to award Father any
retroactive child support back to when he was awarded custody. The
Trial Court in a later order also held Father responsible for all of
the health insurance premiums covering the child from November of 1999
through March of 2002. The Trial Court held each party responsible for
one-half of the health insurance premiums from that date on. We
conclude that the Trial Court erred in refusing to award retroactive
child support to Father for the period from when he was designated the
primary residential parent up until May 26, 1999. We further conclude
that the Trial Court erred by refusing to hold Mother responsible for
all of the child's health insurance premiums.

http://www.tba.org/tba_files/TCA/2005/millere71805.pdf

ARLEN WHISENANT v. BILL HEARD CHEVROLET, INC.
CORRECTED OPINION (ORIGINALLY ISSUED 7-12-2005)

Court:TCA

Attorneys:                          

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

CORRECTED OPINION
http://www.tba.org/tba_files/TCA/2005/whisenanta71805.pdf

STATE OF TENNESSEE v. JOHN PAUL ARNETT

Court:TCCA

Attorneys:                          

Robert Y. Oaks, Assistant Public Defender, Elizabethton, Tennessee,
for the appellant, John Paul Arnett.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner,
Assistant Attorney General; Joe Crumley, District Attorney General;
Ken Baldwin, Assistant District Attorneys General, for the appellee,
State of Tennessee.

Judge: SMITH

First Paragraph:

The defendant was indicted by the Carter County Grand Jury for two (2)
counts of third offense DUI and one (1) count driving on a revoked
license.  The defendant filed a motion to suppress which was denied by
the trial court.  The defendant later agreed to a guilty plea subject
to a certified question of law.  The certified question, which is
presented on appeal to this Court, is: whether the trial court erred
by failing to hold that the defendant was unlawfully arrested without
a warrant, for a misdemeanor (driving under the influence 2  offense,
and driving on a revoked license first offense), nd not committed in
the presence of an officer, and not subject to an exception allowing
warrantless arrests under Tennessee Code Annotated section 40-7-103,
thereby rendering any evidence gained from such unlawful arrest
inadmissible, which would result in the dismissal of the indictment. 
We conclude that the certified question is not dispositive of the
case, and we do not have jurisdiction. Therefore, we dismiss the
appeal for lack of jurisdiction.

http://www.tba.org/tba_files/TCCA/2005/arnettj71805.pdf

STATE OF TENNESSEE v. CHESTER FLOYD COLE

Court:TCCA

Attorneys:                          

Mike Mosier, Jackson, Tennessee, for the appellant, Chester Floyd
Cole.

Paul G.Summers, Attorney General and Reporter; BlindAkrawi, Assistant
AttorneyGeneral; James G. (Jerry) Woodall, District Attorney General;
and Alfred L. Earls, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner challenges the dismissal of his petition for
post-conviction relief, contending that trial counsel was ineffective
in: (1) failing to call requested witnesses; and (2) failing to
adequately communicate with him. Upon review, we conclude that the
evidence presented does not preponderate against the post-conviction
court's findings; therefore, we affirm.

http://www.tba.org/tba_files/TCCA/2005/colec71805.pdf

STATE OF TENNESSEE v. LARRY HOLMES

Court:TCCA

Attorneys:                          

Charles E. Waldman, Memphis, Tennessee, for the appellant, Larry
Holmes.

Paul G. Summers, Attorney General and Reporter; David E. Coenen,
Assistant Attorney General; William L. Gibbons, District Attorney
General; James A. Wax, Jr., and Michelle Parks, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

AShelbyCountyjury convicted the defendant, Larry Holmes,of four counts
of especiallyaggravated kidnapping, a Class A felony, two counts of
aggravated robbery, a Class B felony, and one count of aggravated
burglary, a Class C felony. The trial court merged the two aggravated
robbery convictions into the especially aggravated kidnapping
convictions and sentenced the defendant as a repeat violent offender
to concurrent sentences of fifty-five years at one hundred percent for
the especially aggravated kidnapping conviction and as a career
offender to fifteen years for the aggravated burglary conviction to be
served consecutively to the especially aggravated kidnapping sentences
for an effective sentence of seventy years. On appeal, the defendant
contends that (1) the evidence was not sufficient to support his
convictions for especially aggravated kidnapping and aggravated
robbery, (2) the trial court erred by denying his request for a
mistrial based upon a misstatement by an officer testifying for the
state, and (3) the trial court erred in imposing his sentences. We
affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/holmesl71805.pdf

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