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TODAY'S OPINIONS: Wednesday, October 12, 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.

02 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
03 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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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

ANGELA KAMILLE DRAPER, AS PARENT, SURVIVOR AND NEXT FRIEND OF BRYANNA FAITH DRAPER, DECEASED v. LARRY H. WESTERFIELD, ET AL.

Court: TSC

Attorneys:

Andrew T. Wampler and Richard Mann Currie, Jr., Kingsport, Tennessee, for the Appellant, Larry H. Westerfield.

Kenneth D. Hale and Paul Raymond Wohlford, Bristol, Tennessee, for the Appellee, Angela Kamille Draper.

Judge: HOLDER

In this appeal, we must determine: (1) whether the defendant, a doctor, is immune from liability pursuant to Tennessee Code Annotated section 37-1-410(a) (1996) in connection with his review of a child abuse victimās medical records as requested by authorities investigating allegations of child abuse; (2) whether the defendant has a common law duty to report suspected child abuse; and (3) whether Tennessee Code Annotated section 37-1-401, et. seq. (1996) provides a private right of action for failure to report suspected child abuse. We conclude that immunity under Tennessee Code Annotated section 37-1-410(a) is afforded only to those who actually report harm. Because the determination of whether the defendant reported harm involves a genuine issue of material fact, the Court of Appeals correctly held that the trial court erred in granting summary judgment on this issue. We further conclude that by reviewing the victimās medical records, the defendant undertook a duty to use reasonable care in reviewing the records and reporting his findings and conclusions to the investigators. Finally, we hold that because the plaintiff did not assert a private right of action pursuant to Tennessee Code Annotated section 37-1-401, et. seq. in her complaint, the Court of Appeals erred in addressing the issue. 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 consistent with this opinion.

http://www.tba.org/tba_files/TSC/2005/drapera101205.pdf


MARIE B. JENNINGS v. SEWELL-ALLEN PIGGLY WIGGLY, ET AL.

Court: TSC

Attorneys:

Claiborne Hambrick Ferguson, Memphis, Tennessee, for the Appellant-Plaintiff, Marie B. Jennings.

John Barry Burgess, Thomas C. Quinlen, and Richard Sorin, Memphis, Tennessee, for the AppelleeDefendant, Sewell-Allen Piggly Wiggly.

Judge: HOLDER

The trial court granted summary judgment to the defendant in this premises liability action in which the plaintiff alleges that she slipped and fell on a substance located in the defendantās supermarket. The plaintiff appealed. Because the appellate record in this case is inadequate to determine the basis for the appelleeās motion or the trial courtās judgment, we reverse the judgment of the Court of Appeals, vacate the trial court's grant of summary judgment, and remand this case to the trial court for further proceedings consistent with this opinion.

http://www.tba.org/tba_files/TSC/2005/jenningsm101205.pdf


TRISTA LARAE DENTON, ET AL. v. CHRISTOPHER LORN PHELPS

Court: TCA

Attorneys:

James M. Crain, Knoxville, Tennessee, attorney for appellant, Christopher Phelps.

John D. Lockridge, Knoxville, Tennessee, attorney for appellee, Trista Denton.

William C. Cremins, Knoxville, Tennessee, attorney for intervening appellee, Harley Denton.

Judge: INMAN

Orders of Protection were either largely ignored or scornfully defied by the defendant with the sometime quiescense of the plaintiff who was possibly afflicted with the Stockholm Syndrome. Her father intervened and presented a motion for contempt against the defendant which resulted in the defendantās conviction of eleven (11) instances of criminal contempt. The defendant refused to attend the trial because of his later asserted and ill-based fear that he would not have a fair trial, and he was tried in absentia. Days later, he was tried and convicted of another nine (9) discrete violations of the Order of Protection. The defendant assails the first convictions as violative of his constitutional rights. In light of State v. Far, 51 S.W.3d 222 (Tenn. Ct. Crim. App. 2001) ćthat a trial in absentia [is allowable] only when the defendant is first present at trialä the eleven (11) convictions at the first trial are reversed. The nine (9) convictions at the second trial are affirmed.

http://www.tba.org/tba_files/TCA/2005/dentont101205.pdf


DAN MITCHELL D/B/A EAGLE CDI v. JOHN OWENS, and wife ROSE MARIE OWENS

Court: TCA

Attorneys:

Monty L. Walton, Knoxville, Tennessee, for appellant.

J. Patrick Stapleton, Sevierville, Tennessee, for appellees.

Judge: FRANKS

Plaintiff filed an action to compel arbitration. Defendant filed an action for damages. The Trial Court combined the actions and denied arbitration and the parties proceeded to trial and final judgment. The Trial Court inter alia held that plaintiffs waived issue of arbitration. On appeal, we affirm.

http://www.tba.org/tba_files/TCA/2005/mitchelld101205.pdf


ESTATE OF ALFRED O. WOODEN, ET AL. v. EVELYN HUNNICUTT, ET AL.

Court: TCA

Attorneys:

John R. Bradley, Portland, Tennessee, for the appellant, Evelyn Hunnicutt and Volunteer State Bank.

Peter D. Heil, Nashville, Tennessee, for the appellees, Estate of Alfred Odell Wooden, Kelly D. Wooden and Stacey Stafford, as Co-Administrators of the Estate of Alfred Odell Wooden, and individually.

Judge: CAIN

Testatorās two children, individually and as co-administrators of testatorās estate, brought a suit against alleged transferee to whom testator purportedly conveyed real property, seeking to set aside the deed evidencing such transaction on the grounds of forgery. The Chancery Court for Robertson County, Tennessee, Judge Carol A. Catalano, held that the signature of testator was forged and set aside the deed. The Court affirms the judgment of the trial court in all respects.

http://www.tba.org/tba_files/TCA/2005/woodena101205.pdf


JOE DAVIS MARTIN, JR. v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Joe Davis Martin, Jr., Pro Se, Mountain City, Tennessee.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;and Joe Crumley, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The petitioner, Joe Davis Martin, Jr., appeals from the trial courtās denial of his pro se petitionfor habeas corpus relief. In that petition, the petitioner sought a writ of habeas corpus to release him from his sentences for attempted first degree murder, first degree murder, and attemptedsecond degree murder based on what he alleged was the trial courtās improper interpretation and application of Tennessee Code Annotated section 40-35-115(a). We are persuaded that the trialcourt was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals.Accordingly, the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/martinj101205.pdf


ASHLEY NESBITT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Ashley Nesbitt.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stephanie Johnson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

A Shelby County jury convicted the petitioner of several crimes including first degree murder, attempted first degree murder, attempted first degree premeditated murder and aggravated robbery. On direct appeal, we reversed and dismissed the conviction for attempted first degree premeditated murder. The petitioner then filed a petition for post-conviction relief alleging several grounds. The post-conviction court denied his petition in a written order. We affirm the post-conviction courtās judgment.

http://www.tba.org/tba_files/TCCA/2005/nesbitta101205.pdf


HAROLD BERNARD SCHAFFER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Timothy Boxx, Dyersburg, Tennessee, for the appellant, Harold Bernard Schaffer.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The petitioner pled guilty to one count of failure to appear in case number 00-99 stemming from the terms included in a previous guilty plea in case number 99-228. The petitioner then filed a petition for post-conviction relief stating he was afforded ineffective assistance of counsel in case number 00-99. The post-conviction court denied this petition. On appeal, the petitioner argues that he was afforded ineffective assistance of counsel in his guilty plea for case number 00-99 and that his guilty plea for case number 99-228 is unenforceable because it lacks clarity. We affirm the denial of the petition by the post-conviction court.

http://www.tba.org/tba_files/TCCA/2005/schafferh101205.pdf


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