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Today's Opinions: August 25, 2005
Volume 11 — Number 163
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.
01 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
07 New Opinion(s) from the Tennessee Court of Appeals
08 New Opinion(s) from the Tennessee Court of Criminal Appeals
04 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

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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


FREEMAN INDUSTRIES, LLC v. EASTMAN CHEMICAL COMPANY, ET AL. 

Court: TSC

Attorneys:

Barry C. Barnett, Dallas, Texas; Daniel R. Karon, Cleveland, Ohio;
Isaac L. Diel and Rex A. Sharp, Prairie Village, Kansas; John S.
Bingham, Kingsport, Tennessee; and Todd R. Seelman, Denver, Colorado,
for the appellant, Freeman Industries, LLC.

Herbert S. Washer, New York, New York, and Morris Hadden, Kingsport,
Tennessee, for the appellee, Daicel Chemical Industries, Ltd.

Michelle K. Fisher and Thomas Demitrack, Cleveland, Ohio, and William
T. Gamble, Kingsport, Tennessee, for the appellee, Eastman Chemical
Company.

Jennifer B. Patterson and Michael D. Blechman, New York, New York, and
Morris Hadden, Kingsport, Tennessee, for the appellees, Hoechst
Aktiengesellschaft and Nutrinova Nutrition Specialities & Food
Ingredients, GmbH.

Eugene G. Illovsky, Walnut Creek, California, and Morris Hadden,
Kingsport, Tennessee, for the appellee, Nippon Gohsei Industries, Ltd.

Judge: HOLDER

We granted permission to appeal to determine: 1) whether an indirect
purchaser may bring an action under the Tennessee Trade Practices Act
against defendants involved in an price-fixing scheme; 2) whether the
conduct complained of falls within the scope of the act; and 3)
whether the trial court erred in declining to grant summary judgment
to the defendants as to the plaintiffās unjust enrichment claim.We
conclude that although an indirect purchaser may bring an action under
the Tennessee Trade Practices Act, the conduct complained of in this
case did not substantially affect Tennessee commerce and thus falls
outside the scope of the act.We further conclude that to sustain an
unjust enrichment claim, the plaintiff is not required to: 1)
establish that the defendants received a direct benefit or 2) exhaust
all remedies against the party with whom the plaintiff is in privity
if the pursuit of the remedies would be futile.Because the plaintiff
failed to provide a factual basis to support its bare allegation that
any attempt to exhaust its remedies would have been futile, the trial
court erred in failing to grant the defendantsā motion for summary
judgment on the unjust enrichment claim.Accordingly, the judgment of
the Court of Appeals is affirmed in part and reversed in part, and the
case is remanded to the trial court for further proceedings in
accordance with this opinion.

http://www.tba.org/tba_files/TSC/2005/freeman82505.pdf

I N THE MATTER OF: A.L.N. AND B.T.N. 

Court: TCA

Attorneys:

J. Stephen Mills, Nashville, Tennessee, for the appellant, J.N.

Douglas E. Dimond, Nashville, Tennessee, and Larry L. Crain,
Brentwood, Tennessee, for theappellee, M.I.

Nick Perenich, Nashville, Tennessee, guardian ad litem.

Judge: CLEMENT

Father appeals the termination of his parental rights to his two minor
children, arguing thatPetitioner, the childrenās maternal grandmother,
did not show by clear and convincing evidence that Father had
abandoned his children.Father also asserts that because there is no
transcript oraudio recording of the trial courtās hearing this court
is unable to conduct an adequate appellate review. We agree with
Father and find that due to the lack of a transcript or audiotape of
theevidence presented at the termination hearing, we are unable to
determine whether clear and convincing evidence supported the
termination of his parental rights.Consequently, Father hasbeen
deprived of an effective review on appeal.We therefore vacate the
judgment of the trial court terminating Fatherās parental rights and
remand for further proceedings.

http://www.tba.org/tba_files/TCA/2005/aln82505.pdf

RONNIE SHANE ASHLEY v. TRACY LYNN JONES,ET AL.

Court: TCA

Attorneys:

M. Keith Siskin, Murfreesboro, Tennessee, for the appellant, Tracy
Lynn Jones.

Paul G. Summers, Attorney General and Reporter; Warren A. Jasper,
Assistant AttorneyGeneral, for the appellee, Ronnie Shane Ashley.

Judge: COTTRELL

The trial court ordered a divorced father to pay his former wife $124
a week in child support inaccordance with the child support
guidelines.After the father was laid off from his job, he asked the
Department of Human Services to lower his child support obligation
because of reducedincome.Acting under Tenn. Code Ann. ¤ 36-5-103(f),
the agency cut the fatherās obligation in half without prior
notification to the mother.She filed a complaint in Chancery Court,
arguingthat the Department had taken away her property right without
due process and in reliance upon a statute and administrative rules
that violated the separation of powers under the
TennesseeConstitution.The trial court dismissed her complaint.We
reverse the trial court.

http://www.tba.org/tba_files/TCA/2005/ashleyr82505.pdf

GUY G. BIGGER, JR.,ET AL. v. ANTHONY I. FIELDS, GUY M. FIELDS,PATRICK
E. SMITH, ET AL.

Court: TCA

Attorneys:

William L. Abernathy, Jr., Shelbyville, Tennessee, for the appellant,
Guy G. Bigger, Jr.

C. Dewees Berry, IV, Nashville, Tennessee, and Kristen J. Hazelwood,
Nashville, Tennessee, forthe appellee, Patrick E. Smith

Judge: HARRIS

As found by the trial court, appellant, Guy G. Bigger, Jr., was
defrauded by Anthony Fields andGuy Fields with regard to the sale of a
332 acre tract of land in Marshall County, Tennessee. The Fieldsā
conveyed a portion of the tract to the appellee, Patrick Smith.Mr.
Bigger broughtsuit seeking, among other things, to set aside the
Fieldsā deed to Mr. Smith alleging it to be a fraudulent
conveyance.The trial court found Mr. Smith to be a bona fide purchaser
who gaveadequate consideration for the transfer and denied relief as
to Smith.Mr. Bigger appealed challenging the findings of the trial
court.We find the evidence does not preponderate againstthe trial
courtās findings and affirm.

http://www.tba.org/tba_files/TCA/2005/biggerg82505.pdf

ROBERT KENDALL BROADBENT v. SHARI KATHERINE LANGHI BROADBENT

Court: TCA

Attorneys:

Thomas F. Bloom, Nashville, Tennessee, for the appellant, Robert
Kendall Broadbent.

Rose Palermo, Nashville, Tennessee, for the appellee, Shari Katherine
Langhi Broadbent.

Judge: KOCH

This appeal involves a dispute over the responsibility for investment
losses incurred by a spousebefore and during the partiesā
marriage.After only one year of marriage, the husband filed suit for
divorce in the Circuit Court for Davidson County.The wife
counterclaimed for divorce and,among other relief, sought alimony in
solido to offset the loss of her separate property resulting from the
husbandās aggressive stock market trading.Following a bench trial, the
trial courtgranted the wife a divorce on the ground of inappropriate
marital conduct and then, employing a comparative fault analysis,
determined that the husband should pay the wife $51,500 in alimonyin
solido to reimburse her for her separate property lost in the stock
market.The husband has appealed.We have determined that the wife is
not entitled to be reimbursed for the losses causedby the husbandās
investments.

http://www.tba.org/tba_files/TCA/2005/broadbentr82505.pdf

C. NOELLE CHAFFIN v. MARCUS ELLIS

Court: TCA

Attorneys:

Martin S. Sir and Donald Capparella, Nashville, Tennessee, for the
appellant, Marcus Ellis.

J. Nick Shelton and R. Reid Street, Franklin, Tennessee, for the
appellee, C. Noelle Chaffin.

Judge: KIRBY

This is a divorce and child custody case.The husband and the wife were
married in February1998.Throughout the marriage, they lived together
with the husbandās mother.The partiesā relationship began to
deteriorate soon after the wedding.The wife felt that the husband and
hismother were controlling and oppressive, while the husband felt that
the wife was unfit.One child was born of the marriage.In October 2000,
the wife filed the instant petition for divorce.After a nine-day
trial, the trial court granted a divorce to the wife on the ground of
inappropriate marital conduct, and designated the wife as the primary
residential parent of the partiesā child.The trial court also awarded
the wife a portion of her attorneyās fees and discretionary costs.
From that decision, the husband now appeals.We affirm, finding that
the evidencepreponderates in favor of the trial courtās opinion in all
respects.

http://www.tba.org/tba_files/TCA/2005/chaffinc82505.pdf

SREE,ET AL. v. JACQUBHAI CHAMPANERIA

Court: TCA

Attorneys:

Phillilp Leon Davidson, Nashville, Tennessee, for the appellant, SREE.

David B. Herbert, Julie Bhattacharya Peak, Nashville, Tennessee, for
the appellee, JacqubhaiChampaneria.

Judge: CAIN

The plaintiffs appeal the action of the trial court in granting
Defendantās Motion for SummaryJudgment on the basis of res
judicata.Specifically, Plaintiffs complain of the action of the
trialcourt in allowing Defendant to belatedly amend his answer in
order to assert res judicata as a defense.Plaintiffs sought attorneyās
fees which the trial court denied.We affirm the action ofthe trial
court.

http://www.tba.org/tba_files/TCA/2005/sree82505.pdf

BERNICE WALTON WOODLANDAND JOHN L. WOODLANDv. GLORIA J. THORNTON

Court: TCA

Attorneys:

Don G. Owens, III, Memphis, Tennessee, for the appellant, Gloria J.
Thornton.

Kim E. Linville, Covington, Tennessee, for the appellee, Bernice
Walton Woodland.

Judge: KIRBY

This is a personal injury case arising out of an automobile
accident.The defendant rear-endedthe plaintiffās vehicle, and the
plaintiff filed this lawsuit against the defendant for the damages
resulting from the accident.A jury trial was held.At the conclusion of
the trial, the juryawarded the plaintiff compensatory damages,
including an amount for future pain and suffering and permanent
injury.The trial court entered a judgment on the verdict.The defendant
filed amotion to alter or amend the judgment, arguing that some
elements of the juryās verdict were not supported by the evidence at
trial.The motion was denied.The defendant now appeals.Weaffirm in
part, reverse in part, and remand for the trial court to amend the
judgment to conform with the evidence at trial.

http://www.tba.org/tba_files/TCA/2005/woodlandb82505.pdf

STATE OF TENNESSEE v. SAMUEL T. CRAVENS

Court: TCCA

Attorneys:

John E. Appman, Jamestown, Tennessee, for the Appellant, Samuel T.
Cravens.

Paul G. Summers, Attorney General & Reporter; Preston Shipp, Assistant
Attorney General;William Paul Phillips, District Attorney General; and
John Galloway, Assistant District Attorney General, for the Appellee,
State of Tennessee.

Judge: WITT

The defendant, Samuel T. Cravens, was convicted by a Fentress County
jury of two counts ofvehicular assault and one count of assault.The
defendant argues on appeal that the evidence fails to support the
convictions because the witness testimony upon which the convictions
arebased is inherently impossible and irreconcilable with the physical
evidence and because the state failed to prove that the defendantās
intoxication was the proximate cause of the victimsāinjuries.After
thoroughly reviewing the record and applicable authorities, we find
sufficient evidence to support the convictions and, therefore, affirm
the trial courtās judgments.

http://www.tba.org/tba_files/TCCA/2005/cravenss82505.pdf

STATE OF TENNESSEE v. JOHN DILLIHUNT

Court: TCCA

Attorneys:

Nat H. Thomas, Kingsport, Tennessee, for the appellant, John
Dillihunt.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi,
Assistant Attorney General; H.Greeley Wells, Jr., District Attorney
General; and Robert H. Montgomery, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, John Dillihunt, was convicted of delivery of less than
.5 grams of cocaine within1000 feet of a school, a Class B felony, for
which he was sentenced as a Range I, standard offender, to eight years
in the Department of Correction to be served at 100% and fined
$7500.1On appeal, although the defendant raises four issues, we
believe they can be condensed into one: whether the evidence was
sufficient to support his conviction.Following our review, we
affirmthe judgment of the trial court but remand for entry of a
corrected judgment.

http://www.tba.org/tba_files/TCCA/2005/dillihuntj82505.pdf

STATE OF TENNESSEE v. LARRY DALE DRIVER

Court: TCCA

Attorneys:

Roger Eric Nell, District Public Defender, for the appellant, Larry
Dale Driver.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General;John Wesley Carney, Jr., District Attorney
General; and B. Dent Morriss, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: TIPTON

The Robertson County Circuit Court convicted the defendant, Larry Dale
Driver, of assault, aClass A misdemeanor, following a bench trial.The
trial court imposed a sentence of eleven months, twenty-nine days,
with probation following 180 days in jail.On appeal, the
defendantcontends that the evidence was insufficient to support his
conviction and that the trial court erred by denying him judicial
diversion.We affirm the trial court.

http://www.tba.org/tba_files/TCCA/2005/driverl82505.pdf

WILLIE L. HICKS, JR. v. KEVIN MYERS, WARDEN and theSTATE OF TENNESSEE

Court: TCCA

Attorneys:

Willie L. Hicks, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General,for the Appellee, State of Tennessee.

Judge: WITT

The petitioner, Willie L. Hicks, appeals from the trial court's order
dismissing his petition forwrit of habeas corpus. The state has filed
a motion requesting that this court affirm the trial court's denial of
relief pursuant to Rule 20 of the Rules of the Court of Criminal
Appeals. Thepetitioner has failed to establish that he is entitled to
habeas corpus relief.Accordingly, the state's motion is granted and
the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/hicksw82505.pdf

STATE OF TENNESSEE v. EARNEST GWEN HUMPHREY
WITH CONCURRING OPINION

Court: TCCA

Attorneys:

Michael D. Galligan and John P. Partin, McMinnville, Tennessee, for
the appellant, EarnestGwen Humphrey.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Senior Counsel;William E. Gibson, District Attorney General; and
Benjamin W.Fann and William M. Locke, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Earnest Gwen Humphrey, was convicted by a jury in the
White County CriminalCourt of second degree murder.The trial court
imposed a sentence of twenty-two years incarceration in the Tennessee
Department of Correction.On appeal, the appellant raisesmultiple
issues for our review, including challenges to the voir dire of the
jury, the sufficiency of the evidence, prosecutorial misconduct, and
the jury instructions.Upon our review of the recordand the partiesā
briefs, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/humphreye82505.pdf

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/2005/humphreye_con82505.pdf

STATE OF TENNESSEE v. GREGORY MULLINS
WITH DISSENTING OPINION

Court: TCCA

Attorneys:

Joseph F. Harrison, Assistant Public Defender, Blountville, Tennessee,
for the appellant,Gregory Mullins.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General;Greeley Wells, District Attorney General;
and Joseph E. Perrin, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WADE

The defendant, Gregory Mullins, was convicted of two counts of
violating the vehicleregistration law, two counts of driving on a
suspended license, two counts of criminal impersonation, one count of
speeding, one count of misdemeanor evading arrest, and one countof
felony evading arrest.The trial court imposed a Range III, career
offender sentence of six years for the felony evading arrest offense;
concurrent terms of forty-five days for each of thedriving on a
suspended license offenses; eleven months, twenty-nine days for the
misdemeanor evading arrest offense; and forty-five days for each of
the criminal impersonation offenses.Inaddition, the defendant was
fined $50 for each of the vehicle registration offenses; $50 for the
speeding offense; $500 for each of the driving on a suspended license
offenses; $3,000 for thefelony evading arrest offense; $2,500 for the
misdemeanor evading arrest offense; $500 for one of the impersonation
offenses; and $250 for the remaining impersonation offense.In this
appeal,the defendant asserts that the evidence is not sufficient to
support several of his convictions and that the dual convictions for
misdemeanor evading arrest and felony evading arrest violateprinciples
of double jeopardy.Because the convictions for felony and misdemeanor
evading arrest violate the principles of double jeopardy, the
conviction for misdemeanor evading arrestmust be merged into the
conviction for felony evading arrest.Otherwise, the judgment of the
trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/mullinsg82505.pdf

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/2005/mullinsg_dis82505.pdf

STATE OF TENNESSEE v. LAWRENCE RALPH, SR.

Court: TCCA

Attorneys:

Dan T. Bryant, District Public Defender; and L. Scott Grissom,
Assistant Public Defender,McMinnville, Tennessee, (on appeal); Russell
L. Leonard, Winchester, Tennessee, (at trial), for the appellant,
Lawrence Ralph, Sr.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant AttorneyGeneral; and Clement Dale Potter, District Attorney
General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Lawrence Ralph, Sr., was convicted
of failure to display adriverās license, a Class C misdemeanor;
resisting arrest, a Class B misdemeanor; and simple possession of a
Schedule III controlled substance, a Class A misdemeanor.The trial
courtsentenced Defendant to concurrent terms of thirty days for his
failure to display a driverās license conviction, six months for his
resisting arrest conviction, and eleven months, twenty-nine daysfor
his simple possession conviction, for an effective sentence of eleven
months and twenty-nine days.The trial court suspended all but 120 days
of Defendantās effective sentence, and placedDefendant on
probation.Defendant does not challenge the sufficiency of the evidence
supporting his conviction for simple possession.On appeal, Defendant
argues that: (1) the trialcourt erred in denying his motion to
suppress; (2) the evidence was insufficient to support his convictions
for resisting arrest and failure to display a driverās license; and
(3) the trial courterred in determining the percentage of Defendantās
effective sentence which must be served in confinement.After a review
of the record, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/ralphl82505.pdf

STATE OF TENNESSEE v. MICHELLE TIPTON 
CORRECTED OPINION

Court: TCCA

Attorneys:

Dennis Campbell, Sevierville, Tennessee, for the Appellant, Michelle
Tipton.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Al Schmutzer, Jr., District Attorney
General; and Steve Hawkins, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Michelle Tipton, was convicted by a Sevier County jury
of the first degree felony murder and second degree murder of Pamela
Hale.The trial court merged the second degree murder conviction with
her first degree felony murder conviction, resulting in a sentence of
life imprisonment.On appeal, Tipton raises the following issues for
our review: (1) whether the evidence was sufficient to support the
verdicts; (2) whether the District Attorney Generalās office should
have been disqualified from prosecuting the case based upon
Appellantās co-counselās subsequent employment with the State; (3)
whether the testimony of two witnesses should have been excluded due
to disclosure violations; (4) whether the trial court abused its
discretion in admitting into evidence certain photographs of the
deceased and a portion of the deceasedās skull; (5) whether the
Stateās closing argument was proper; (6) whether the trial court erred
in admitting her codefendantās statement; and (7) whether the trial
court should have instructed the jury with regard to parole
eligibility.After a review of the record, we reverse Tiptonās
conviction for second degree murder based on the trial courtās failure
to instruct the jury concerning the natural and probable consequences
rule.However, a review of the issues raised on appeal reveals no
error.Accordingly, Tiptonās conviction and sentence for first degree
felony murder are affirmed.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/2005/tiptonm82505.pdf

English-only Driver's License Tests

Date: August 17, 2005

Opinion Number: 05-125

http://www.tba.org/tba_files/AG/2005/op125.pdf

Legislator as President of the Tennessee Professional Fire Fighters
Association

Date: August 22, 2005

Opinion Number: 05-126

http://www.tba.org/tba_files/AG/2005/op126.pdf

Education Requirement for City Judges

Date: August 22, 2005

Opinion Number: 05-127

http://www.tba.org/tba_files/AG/2005/op127.pdf

Regulation of Public Water Systems Under the Safe Drinking Water Act 

Date: August 22, 2005

Opinion Number: 05-128

http://www.tba.org/tba_files/AG/2005/op128.pdf

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