Dial in to great CLE seminars

The TennBarU Teleseminar series offers you the chance to hear leading national experts discuss timely topics from the convenience of your office or home. All TennBarU Teleseminars are broadcast via telephone at noon central time.

http://www.tba.org/TennBarU

  
TODAY'S OPINIONS: Tuesday, September 13, 2005
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 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
10 - TN Court of Appeals
06 - TN Court of Criminal Appeals
05 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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

THOMAS SALLEE v. TYLER BARRETT
CORRECTED OPINION ORIGINALLY ISSUED 8/18/2005

Court: TSC

Attorneys:

David William Haines, Jr., Clarksville, Tennessee, for the appellant, Tyler Barrett.

Phillip Leon Davidson, Nashville, Tennessee, for the appellee, Thomas Sallee.

James Russell Farrar and Mary Byrd Ferrara, Nashville, Tennessee, for the Amicus Curiae, Tennessee Municipal League Risk Management Pool.

Judge: BARKER

This appeal arises from a claim for negligent infliction of emotional distress. The defendant, a police officer, accidently discharged his gun while standing behind the plaintiff, startling the plaintiff. The trial court granted the defendantās motion to dismiss for failure to state a claim, concluding that the defendant was immune from suit pursuant to the Governmental Tort Liability Act, Tennessee Code Annotated section 29-20-310(b) (2000). The trial court also denied the plaintiffās motion to amend his complaint to add the City of Clarksville as a defendant. The Court of Appeals reversed, finding that section 29-20-205(2), which retained immunity for governmental entities for the ćinfliction of mental anguishä 1 caused by its employee applied to both negligent, as well as intentional infliction of mental anguish. We reverse the Court of Appeals and reinstate the trial courtās order granting the motion to dismiss in favor of the defendant. With regard to the plaintiffās motion to amend his complaint, we find that the trial court did not abuse its discretion in denying that motion, as the requirements of Tennessee Rule of Civil Procedure 15.03 were not met.

CORRECTED OPINION
http://www.tba.org/tba_files/TSC/2005/salleet91305.pdf


BEHROUZ AMINI v. CTI, INC., ET AL.

Court: TCA

Attorneys:

Behrouz Amini, pro se Appellant.

J. Chadwick Hatmaker and Robert L. Vance, Knoxville, Tennessee, for the Appellees CTI, Inc.,James Kelly Milam, and Terry Douglass.

Judge: SWINEY

Behrouz Amini (ćPlaintiffä) was employed at CTI, Inc., for over six years when his employmentwas terminated in January of 1999. Plaintiff claims that after he was terminated, the defendants prohibited him from taking various documents and other items of his property including twowritten stock option agreements he received while employed by CTI, Inc. Plaintiff claims that the defendants converted various items of his personal and professional property, including hisstock option agreements. Plaintiff had ninety days to exercise his stock options after his employment was terminated, but claims he did not exercise these rights because the defendantshad converted the stock option agreements which detailed these rights. The Trial Court granted the defendantsā motion for summary judgment. We affirm in part, vacate in part, and remand forfurther proceedings.

http://www.tba.org/tba_files/TCA/2005/aminib91305.pdf


TERI LYNN COCHRAN v. L.V.R. & R.C., INC., ET AL.

Court: TCA

Attorneys:

Robert L. Huskey, Manchester, Tennessee, for the appellant, Teri Lynn Cochran.

Josh A. McCreary, Murfreesboro, Tennessee, for the appellees, L.V.R. and R.C., Inc., Rbea J.Cochran and Larry Vickers d/a/b The Home Place.

Judge: FARMER

Plaintiff brought an action for corporate dissolution pursuant to Tennessee Code Annotated ¤ 48-24-301(2)(B). The trial court granted Defendantsā motion to dismiss for failure to state a claim. We affirm in part, reverse in part and remand for further proceedings.

http://www.tba.org/tba_files/TCA/2005/cochrant91305.pdf


SHARON ANN COSBY v. STATE OF TENNESSEE DEPARTMENT OF HUMAN SERVICES

Court: TCA

Attorneys:

Theresa-Vay Smith, Oak Ridge, Tennessee, for the appellant, Sharon Ann Cosby.

Paul G. Summers, Attorney General and Reporter; Pamela A. Hayden-Wood, Senior Counsel,for the appellee, State of Tennessee, Department of Human Services.

Judge: COTTRELL

The Tennessee Department of Human Services decided that a divorced mother of four was noteligible for assistance under the Stateās Families First Program because she and her former husband shared equal residential placement time with the children. After exhausting heradministrative appeals, the mother filed a complaint for judicial review of the departmentās decision. The trial court affirmed the departmentās action. Because the denial of eligibility wasbased on a departmental policy not promulgated as a rule under the Administrative Procedures Act, we reverse.

http://www.tba.org/tba_files/TCA/2005/cosbys91305.pdf


ROBERT C. deJAEGER v. JENNIFER deJAEGER

Court: TCA

Attorneys:

Shawn J. McBrien, Lebanon, Tennessee, for the appellant, Robert C. deJaeger.

James L. Curtis, Nashville, Tennessee, for the appellee, Jennifer deJaeger.

Judge: FARMER

The parties were divorced based on stipulated grounds. Husband appeals the award of propertyto Wife. We reverse and remand.

http://www.tba.org/tba_files/TCA/2005/dejaegerr91305.pdf


EATHERLY CONSTRUCTION COMPANY v. HTI MEMORIAL HOSPITAL D/B/A MEMORIAL HOSPITAL

Court: TCA

Attorneys:

Todd E. Panther, Nashville, Tennessee, for the appellant, HTI Memorial Hospital Corporationd/b/a Nashville Memorial Hospital.

Angus Gillis, III, Nashville, Tennessee, for the appellee, Eatherly Construction Company.

Judge: CLEMENT

This is a breach of contract action arising from the construction of a water line and pumpingstation for a new hospital. Eatherly Construction Company filed suit to recover $35,250 for installation of 705 linear feet of twelve-inch ductile iron pipe that was omitted from its bid and$10,000 of retainage funds withheld by the owner, HTI Memorial Hospital Corporation. The hospital denied Eatherlyās claims and filed a counterclaim to recover inter alia liquidateddamages of $500 per day for each day the construction was delayed beyond the agreed completion date and attorney fees. The trial court summarily dismissed Eatherlyās bidding errorclaim of $35,250 and the hospitalās claim for attorney fees. Following a bench trial, Eatherly was awarded the $10,000 retainage while the hospitalās claim for liquidated damages wasdismissed. Both parties appealed. We affirm.

http://www.tba.org/tba_files/TCA/2005/eatherly91305.pdf


DON C. M CNEIL v. ZAIDOUN NOFAL

Court: TCA

Attorneys:

Renard Astarie Hirsch, Sr., Nashville, Tennessee, for the appellant, Don McNeil.

David Lyons, Nashville, Tennessee, for the appellee, Zaidoun Nofal.

Judge: CAIN

This appeal arises from the sellerās suit to enforce two notes as partial consideration for a seller-financed purchase of a business and inventory. The purchaser responded alleging fraud and negligent misrepresentation as an affirmative defense and counterclaim respectively. The trialcourt found in favor of the seller for the full amount of the lesser note, awarding attorney fees and interest as provided therein. The court found in favor of the purchaser on his counterclaimfor negligent misrepresentation. In addition, the trial court found comparative fault on the part of the purchaser affecting the negligent misrepresentation damages. The court then offset recoveryon the greater of the two notes with the amount of negligent misrepresentation damages awarded. The court denied the sellerās claim for attorney fees and interest on the note. We reverse the trialcourtās finding of negligent misrepresentation and its reduction applied to the greater note; we affirm the trial courtās judgment as to the lesser note. The cause is remanded for a determinationof attorney fees consistent with this opinion.

http://www.tba.org/tba_files/TCA/2005/mcneild91305.pdf


BEVERLY J. ROUSE v. STATE OF TENNESSEE

Court: TCA

Attorneys:

Jason E. Legg, Knoxville, Tennessee, for the appellant, Beverly Jane Rouse.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; andPamela S. Lorch, Senior Counsel, for the appellee, State of Tennessee.

Judge: SUSANO

Beverly Jane Rouse (ćthe Claimantä) suffered serious injuries when she tripped and fell on theuneven floor of a roofed, open-air picnic area at Brushy Mountain State Prison. The Claims Commission (ćthe Commissionä) dismissed the Claimantās action against the State of Tennessee,holding that the uneven floor was not a dangerous condition as that concept is found in Tenn. Code Ann. ¤ 9-8-307(a)(1)(C) (Supp. 2004). The Claimant appeals. We vacate theCommissionās judgment and remand for further proceedings.

http://www.tba.org/tba_files/TCA/2005/rouseb91305.pdf


PAUL TRUITT v. STEPHANIE PALMER, ET AL.
CORRECTED OPINION ORIGINALLY ISSUED 8/18/2005

Court: TCA

Attorneys:

Jonathan C. Stewart, Nashville, TN, for Appellant

David E. High, Peter D. Heil, Nashville, TN, for Appellees Stephanie Palmer, and Palmer-WMVC, Inc., previously known as West Meade Veterinary Clinic, P.C.

Judge: HIGHERS

This appeal arises out of an action filed by the plaintiff seeking damages for breach of an oralcontract, intentional misrepresentation, defamation, and conversion. The plaintiff voluntarily dismissed his claims against Dr. Michele Lutz. The trial court granted Dr. Michael Lutzās andWest Meade Veterinary Clinic, LLCās motion for partial summary judgment, and the plaintiff voluntarily dismissed his remaining claims against Dr. Michael Lutz and West Meade VeterinaryClinic, LLC. The trial court granted Stephanie Palmerās, Palmer-West Meade Veterinary Clinic, Inc.ās, and West Meade Veterinary Clinic, PCās motion for partial summary judgment, leavingonly the plaintiffās claim for unpaid bonuses or commissions. The trial court awarded the plaintiff $6,307.85, representing unpaid commissions and bonuses. The plaintiff now appeals tothis Court, and, for the following reasons, we reverse and remand for further proceedings.

CORRECTED OPINION
http://www.tba.org/tba_files/TCA/2005/truittp91305.pdf


MICHAEL LOUIS WELCH v. JENNIFER RACHELLE WELCH

Court: TCA

Attorneys:

Harold F. Johnson, Jackson, for the appellant, Jennifer Rachelle Welch.

James T. Ryal, Jr., Humboldt, Tennessee, for the appellee, Michael Louis Welch.

Judge: FARMER

The juvenile court granted Appelleeās Rule 60.02 Motion to vacate its prior order of legitimation.We reverse.

http://www.tba.org/tba_files/TCA/2005/welchm91305.pdf


TERESA ANN (WOODBY) WILSON v. JOHN GREGORY WILSON

Court: TCA

Attorneys:

Russell E. Edwards, Hendersonville, Tennessee, for the appellant, Teresa Ann (Woodby)Wilson.

John Michael Garrett, Nashville, Tennessee, for the appellee, John Gregory Wilson.

Judge: CLEMENT

This is an appeal from a divorce action in which the Wife appeals the trial courtāsdecision regarding the partiesā parenting time with their minor child. Wife also appeals the trial courtās decision to award her engagement and wedding rings to Husband. We affirm the trialcourtās ruling as to the parenting plan. As for the engagement and wedding rings, we reverse the judgment as to the wedding rings finding they were a completed gift from Husband to Wife.

http://www.tba.org/tba_files/TCA/2005/wilsont91305.pdf


STATE OF TENNESSEE v. JERRY BELL

Court: TCCA

Attorneys:

Tony N. Brayton (on appeal), Robert Wilson Jones (on appeal), William E. Robilio (at trial), and Harry Sayle (at trial), Memphis, Tennessee, for the appellant, Jerry Bell.

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

Judge: OGLE

The appellant, Jerry Bell, was convicted by a jury in the Shelby County Criminal Court of two counts of aggravated robbery and one count of aggravated burglary. The appellant received a total effective sentence of twenty years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting his convictions and the sentences imposed for those convictions. Upon review of the record and the partiesā briefs, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/bellj91305.pdf


ERIC B. BLAKEMORE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

C. Anne Tipton, Memphis, Tennessee, for the appellant, Eric B. Blakemore.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Emily Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner appeals the denial of his post-conviction petition, in which he asserted that trial counsel was ineffective in: (1) failing to secure an independent mental evaluation; and (2) failing to demand a speedy trial. Upon review, we conclude that the evidence does not preponderate against the findings of the post-conviction court; therefore, we affirm.

http://www.tba.org/tba_files/TCCA/2005/blakemoree91305.pdf


ANTHONY LEON MOORE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

J. Colin Morris, Jackson, Tennessee, for the appellant, Anthony Leon Moore.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Emily Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Anthony Leon Moore, appeals from the post-conviction courtās denial of postconviction relief. On appeal, he contends that the post-conviction court erred in finding that he received the effective assistance of counsel. Following our review, we affirm the denial of postconviction relief.

http://www.tba.org/tba_files/TCCA/2005/moorea91305.pdf


STATE OF TENNESSEE v. SHIRLEY ANNETTE RUDD

Court: TCCA

Attorneys:

Charles S. Kelly, Dyersburg, Tennessee (at trial); and Timothy Boxx, Dyersburg, Tennessee (on appeal), for the Appellant, Shirley Annette Rudd.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James Cannon, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

An Obion County jury found the defendant, Shirley Annette Rudd, guilty of facilitating the manufacture of methamphetamine, possession of methamphetamine with intent to sell or deliver, and conspiracy to manufacture methamphetamine. See Tenn. Code Ann. ¤¤ 39-11-403, -12-103, 17-417 (2003). Pretrial, the defendant had moved to suppress methamphetamine seized from her person. The trial court conducted an evidentiary hearing and concluded that the evidence had been legally seized. The defendant challenges that ruling on appeal. After reviewing the record, applicable authorities, and the briefs of the parties, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/rudds91305.pdf


CHRISTOPHER JEROME TAYLOR v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David L. Douglas, Somerville, Tennessee, for the Appellant, Christopher Jerome Taylor.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Terry D. Dycus, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Christopher Jerome Taylor, appeals the Fayette County Circuit Courtās denial of his petition for post-conviction relief. On appeal, Taylor argues that he was denied his Sixth Amendment right to the effective assistance of counsel. After review of the record, we affirm the denial of post-conviction relief.

http://www.tba.org/tba_files/TCCA/2005/taylorc91305.pdf


STATE OF TENNESSEE v. RONNIE WOODALL

Court: TCCA

Attorneys:

Tony N. Brayton (on appeal) and Rusty White (at trial) for the appellant, Ronnie Woodall.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Scott Bearup, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Ronnie Woodall, was convicted of rape of a child by a Shelby County jury and sentenced as a violent offender to twenty-two years in the Tennessee Department of Correction at one-hundred percent. On appeal, the defendant challenges: (1) the sufficiency of the convicting evidence, and (2) the trial courtās application of a sentencing enhancement. Following our review of the record and the applicable law, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/woodallr91305.pdf


Agricultural Education Programs in Public Education

TN Attorney General Opinions

Date: 2005-09-07

Opinion Number: 05-137

http://www.tba.org/tba_files/AG/2005/OP137.pdf

Liability for Drug Court Participation

TN Attorney General Opinions

Date: 2005-09-08

Opinion Number: 05-138

http://www.tba.org/tba_files/AG/2005/op138.pdf

Part-Time General Sessions Judge on Utility Board

TN Attorney General Opinions

Date: 2005-09-12

Opinion Number: 05-139

http://www.tba.org/tba_files/AG/2005/op139.pdf

Part-Time General Sessions Judge on Utility Board

TN Attorney General Opinions

Date: 2005-09-12

Opinion Number: 05-140

http://www.tba.org/tba_files/AG/2005/op140.pdf

Department of Childrenās Services Employee Running for County Commission

TN Attorney General Opinions

Date: 2005-09-12

Opinion Number: 05-141

http://www.tba.org/tba_files/AG/2005/op141.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 instructions 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