UPCOMING PROGRAM FOCUSES ON NEW LLC ACT Need to know about the new Tennessee LLC Act? TennBarU give you an opportunity to learn about this important act from some of the experts who were involved in drafting it. The three-hour seminar on the LLC Act will be in Chattanooga and Memphis on Dec. 14 and in Nashville on Dec. 15. https://www.tba.org/onsiteinfo/llc_2005.html    TODAY'S OPINIONS: Monday, October 31, 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. 00 - TN Supreme Court 00 - TN Worker's Comp Appeals 00 - TN Supreme Court - Rules 17 - TN Court of Appeals 00 - TN Court of Criminal Appeals 00 - 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 MATTHEW BALLARD v. SERODINO, INC. Court: TCA Attorneys: B. Stewart Jenkins, Chattanooga, Tennessee, for the appellant, Matthew Ballard. Robert W. Sauser, Chattanooga, Tennessee, for the appellee, Serodino, Inc. Judge: SUSANO Matthew Ballard filed this action pursuant to the federal Jones Act, seeking damages for the injuries he sustained when he fell on the deck of a barge owned and operated by his employer, Serodino, Inc. (ãthe defendantä). The jury returned a verdict assessing 75% of the fault to the plaintiff and 25% of the fault to the defendant. As a consequence of the juryâs allocation of fault, the plaintiff was awarded $37,500, i.e., 25% of the total damages found by the jury. The plaintiff appeals, arguing that there is no material evidence to support a finding that he was 75% at fault. He also argues that the trial court erred in failing to grant his motion for a directed verdict. We affirm. http://www.tba.org/tba_files/TCA/2005/ballardm103105.pdf MARIA ANGELA STEFANELLI BELL v. JULIAN BAKER BELL, III. Court: TCA Attorneys: John P. Konvalinka, Chattanooga, Tennessee, for appellant. William H. Horton, Chattanooga, Tennessee, for appellee. Judge: FRANKS The divorced mother was permitted by the Trial Court to relocate with her two children to Cincinnati, Ohio from Hamilton County, Tennessee. The father has appealed. We affirm. http://www.tba.org/tba_files/TCA/2005/bellm103105.pdf ALBERT BENDER ET AL. v. METROPOLITAN GOVERNMENT ET AL. Court: TCA Attorneys: Albert M. Bender, Antioch, Tennessee, Pro Se. Karl F. Dean, Director of Law; J. Brooks Fox, and John L. Kennedy, Nashville, Tennessee, for the appellee, Metropolitan Government. Judge: KOCH This appeal involves the plaintiffsâ efforts to overturn a decision of the Metropolitan Planning Commission. After the plaintiffsâ first complaint was dismissed for failure to name the Metropolitan Government of Nashville and Davidson County as a defendant and for improper service of process, the plaintiffs filed a nearly identical complaint naming the Metropolitan Government as a defendant. The trial court dismissed the second suit in part because the claims were barred by the sixty (60) day statute of limitations provided by Tenn. Code Ann. ¤ 27-9-102 (2000). We affirm. http://www.tba.org/tba_files/TCA/2005/bendera103105.pdf ARNOLD BILTCLIFFE v. HAILEYâS HARBOR, INC. Court: TCA Attorneys: James L. Harris, Nashville, Tennessee, for the appellant, Arnold Biltcliffe. R. Francene Kavin, Brentwood, Tennessee, for the appellee, Haileyâs Harbor, Inc. Judge: KOCH This appeal involves a dispute between a truck driver and the author of a letter sent to the truck driverâs employer that resulted in his termination. The truck driver filed suit against the author of the letter and the authorâs employer in the Circuit Court for Davidson County seeking damages for defamation, intentional interference with his employment contract, and intentional interference with a business relationship. The case went to trial against only the employer of the letterâs author. After the trial court directed a verdict on the intentional interference with the employment contract claim, a jury awarded the truck driver $65,000 on his defamation claim but returned a defendantâs verdict on the intentional interference with a business relationship claim. The trial court later granted a judgment in accordance with a motion for a directed verdict on the defamation claim but failed to rule on the defendant employerâs alternative motion for a new trial. We have determined that the trial court erred by granting the motion for a judgment in accordance with the motion for a directed verdict. Accordingly, we reverse the order dismissing the truck driverâs defamation claim and remand the case to the trial court to rule on the defendantâs motion for a new trial. http://www.tba.org/tba_files/TCA/2005/biltcliffea103105.pdf TINA COX, ET AL. v. SHELL OIL COMPANY, ET AL. Court: TCA Attorneys: Langdon S. Unger, Jr. of Martin, Tennessee; Paul M. O'Connor III, Seth A. Moskowitz, and JonAvins of New York, New York for Appellants, Hoechst Celanese Corporation Albert C. Harvey of Memphis, Tennessee and Charles Anthony Maness of Union City,Tennessee for Appellants, Shell Oil Company Gordon Ball of Knoxville, Tennessee for Petitioner/Appellant, Gordon Ball Leo Bearman, Jr. of Memphis, Tennessee; Robert G. McDowell and Lea Carol Owen ofNashville, Tennessee; James M. Glasgow, Jr. of Union City, Tennessee for Appellees, Richard M. Leslie, Richard M. Leslie, P.A., and Shutts and Bowen, LLP Judge: CRAWFORD In a class-action case, in which a settlement had been agreed to, certain members of theclass were allowed to opt out of the class action based on the representations of their purported attorneys that their clients had been notified of the settlement and the proposed opt out and thatthey approved of same. Subsequently, litigation was commenced by the former members of the class in another jurisdiction, and the original defendants were compelled to defend the caseincurring expenses, including attorney fees. The original defendants, and one of the attorneys for the class, filed motions against the purported attorneys for the opted out class members for themto show cause why they should not be held in contempt of court for making false representations to the court that resulted in the court allowing the opt out. The respondent attorneys moved todismiss the motions filed on the basis that, if there was contempt, it was criminal only and on the basis of judicial estoppel. The trial court ruled in favor of respondent attorneys holding that anycontempt was criminal and not civil and on the basis of judicial estoppel. The motions of the original defendants and a plaintiffs' attorney were dismissed. The defendants and plaintiffs'attorney have appealed. We affirm. http://www.tba.org/tba_files/TCA/2005/coxt103105.pdf URSULA DANIELS v. GEORGE BASCH, ET AL. Court: TCA Attorneys: Lawrence D. Wilson, Nashville, Tennessee, for the appellant, Ursula Daniels. Derrick C. Smith, Nashville, Tennessee, for the appellees, George Basch and ReMax Elite. Judy A. Oxford, Franklin, Tennessee, for the appellees, Brett Wickham and Susan Wickham. Judge: CAIN Purchaser of a residence filed a suit against sellers and real estate agent for rescission of the contract and damages, claiming that Defendants engaged in misrepresentation by suppressing or concealing the existence of a TVA easement along the backside of the property. The Davidson County Chancery Court granted Defendants summary judgment and Plaintiff appealed. The judgment of the trial court is affirmed in all respects. http://www.tba.org/tba_files/TCA/2005/danielsu103105.pdf KATHRYN HENLEY DAVIDSON v. RICHARD LEONARD DAVIDSON Court: TCA Attorneys: John J. Hollins, Jr., Nashville, Tennessee, for the appellant, Kathryn Henley Davidson. Jennifer Davis Roberts, Dickson, Tennessee, for the appellee, Richard Leonard Davidson. Judge: KOCH This appeal involves the division of marital property following the dissolution of a nine-yearmarriage. The wife filed a complaint for divorce in the Chancery Court for Dickson County. Following a bench trial, the court granted the wife a divorce on the ground of inappropriatemarital conduct, divided the partiesâ marital estate, and denied the wifeâs requests for spousal support and attorneyâs fees. The wife takes issue on this appeal with the manner in which thetrial court classified, valued, and divided the partiesâ property. We have determined that the trial courtâs decision regarding the partiesâ marital estate must be modified with regard to the divisionof the increase in the value of the marital home and the increase in the value of the husbandâs retirement. Accordingly, we modify the judgment and affirm. http://www.tba.org/tba_files/TCA/2005/davidsonk103105.pdf JAMES MICHAEL EDENFIELD v. KARA LEIGH COOPER EDENFIELD Court: TCA Attorneys: The divorced mother was permitted by the Trial Court to relocate with her two children to Cincinnati, Ohio from Hamilton County, Tennessee. The father has appealed. We affirm. Denise Terry Stapleton, Morristown, Tennessee, for the appellee, James Michael Edenfield. Judge: COTTRELL The chief point of contention in this bitterly fought divorce case involves the valuation and disposition of a one-half interest in a service company which the husband and his business partner founded and worked for during the marriage. Both parties had asked the court to award the husband the share of the business, and the wife had asked the court to award her the monetary equivalent of one-half its value. Instead, the trial court awarded the business to the wife, together with all the debt associated with it. The wife argues on appeal that actions by the husband rendered the company valueless and the distribution of property and debt was, consequently, inequitable. Because we find that the business had no value apart from the efforts of its principals, we modify the valuation of property and allocation of debt. Because of the modification, we remand the case to the trial court to reconsider the question of attorney fees. http://www.tba.org/tba_files/TCA/2005/edenfieldj103105.pdf ENVISION PROPERTIES, LLC v. PAUL RICHARD JOHNSON, ET AL. Court: TCA Attorneys: Glenn T. McColpin, Chattanooga, Tennessee, for the Appellant, Paul Richard Johnson. Lynn Perry, Cleveland, Tennessee, for the Appellee, Envision Properties, LLC. Judge: LEE This is a suit to quiet title to real property. The issue presented is whether the trial court correctly decreed that any legal or equitable interest of Paul Richard Johnson in the real property purchased by Envision Properties, LLC was extinguished by operation of the doctrine of adverse possession. Based on the stipulated proof, we hold that there was not clear and positive proof of adverse possession sufficient to constitute an ouster of a co-tenant. Therefore, Paul Richard Johnson has an undivided one-fifth interest in the property. The judgment of the trial court is reversed. http://www.tba.org/tba_files/TCA/2005/envision103105.pdf EDWARD JOHNSON, ET AL. v. KATIE E. WILSON, ET AL. Court: TCA Attorneys: Larry B. Nolen, Athens, Tennessee, for the appellants, Katie E. Wilson and Sherrell Wilson. C. Edward Daniel, Knoxville, Tennessee, for the appellees, Edward Johnson and wife, Glenda Johnson. Judge: SUSANO This litigation arose out of an automobile accident. The parties settled the plaintiffsâ claims for $30,000; in due course, the defendantsâ insurance carrier paid the plaintiffs the full amount of the settlement. Sometime after the payment had been made, the defendants moved the trial court to hold the plaintiffs and their attorney in contempt because of their failure to satisfy the lien of a third party and because of their failure to pay a $500 attorneyâs fee ordered by the trial court. The trial court denied the motion. The defendants appeal the trial courtâs action, but only with respect to the courtâs failure to hold the plaintiffsâ attorney in contempt. We affirm and hold that the defendantsâ appeal is frivolous in nature. http://www.tba.org/tba_files/TCA/2005/johnsone103105.pdf DAVID ANTHONY NORMAN v. MELISSA DAWN NORMAN Court: TCA Attorneys: John D. Schwalb, D. Scott Porch, IV, Franklin, Tennessee, for the appellant, Melissa Dawn Norman. Rose Palermo, Nashville, Tennessee, for the appellee, David A. Norman. Judge: CAIN In this third appeal from a Williamson County divorce, the wife challenges the trial courtâs valuation and distribution of the marital estate and award of alimony upon remand. Both parties seek an award of attorneyâs fees. The husband seeks damages for frivolous appeal. We affirm the trial courtâs valuation and distribution and award of alimony and deny the husbandâs frivolous appeal damages request. http://www.tba.org/tba_files/TCA/2005/normand103105.pdf CONNIE J. NORRIS v. EAST TENNESSEE CHILDRENâS HOSPITAL, ET AL. Court: TCA Attorneys: J. Mikel Dixon, Knoxville, Tennessee, for the appellant, Connie J. Norris. Bruce A. Anderson, Knoxville, Tennessee, for the appellee, East Tennessee Childrenâs Hospital. Robert H. Watson, Jr. and Nathan D. Rowell, Knoxville, Tennessee, for the appellees, Robert R. Madigan, M.D., and Cameron J. Sears, M.D. James H. London and Margaret G. Klein, Knoxville, Tennessee, for the appellee, Howard C. Filston, M.D. Dixie W. Cooper and Amy D. Hampton, Nashville, Tennessee, for the appellee, Donald H. Nguyen, M.D. Judge: SUSANO This is a medical malpractice case arising out of the postoperative treatment and care of Emit Greg Norris (ãthe childä), the minor child of Connie J. Norris (ãthe plaintiffä). At the conclusion of the plaintiffâs case-in-chief, the remaining defendants moved for a directed verdict. The trial court determined that the plaintiff had failed to present a prima facie case of acts or omissions of medical negligence that proximately caused the condition that resulted in the childâs death. Accordingly, the trial court granted the defendantsâ motion and dismissed the plaintiffâs case. The plaintiff appeals. We affirm. http://www.tba.org/tba_files/TCA/2005/norrisc103105.pdf JAMES LESTER QUALLS v. RANDY CAMP, in his official capacity as Commissioner of Personnel and Executive Secretary of the Civil Service Commission, ET AL. Court: TCA Attorneys: Paul G. Summers, Attorney General and Reporter, and Eugenie B. Whitesell, Senior Counsel, for the Appellants, Randy Camp, in his official capacity as Commissioner of Personnel and Executive Secretary of the Civil Service Commission, and Quentin White, in his official capacity as Commissioner of the Tennessee Department of Correction. Larry D. Woods, Nashville, Tennessee, for the appellee, James Lester Qualls. Judge: FARMER Petitioner, James Lester Qualls, appealed the decision of the Civil Service Commission, which had overturned the Administrative Law Judgeâs decision and reinstated the Department of Correctionsâ disciplinary actions against Mr. Qualls. Upon determining that the Civil Service Commission had failed to make written findings for review, the chancery court vacated the order and remanded the matter to the Civil Service Commission for findings. Mr. Qualls filed a motion to alter or amend the judgment to include an award of attorneyâs fees. The chancery court granted the motion and awarded attorneyâs fees pursuant to 42 U.S.C. ¤ 1988. The Civil Service Commission and Department of Corrections filed a motion to alter or amend in chancery court and now appeal to this Court, asserting this action does not fit within 42 U.S.C. ¤ 1988 and, alternatively, the attorneyâs fees award is unreasonable. We dismiss for lack of subject matter jurisdiction. http://www.tba.org/tba_files/TCA/2005/quallsj103105.pdf CAROL LYN ROBERTS v. WILLIAM FREDERICK ROBERTS Court: TCA Attorneys: Bruce Hill, Sevierville, Tennessee, for the appellant, Carol Lyn Roberts. Dennis C. Campbell, Sevierville, Tennessee, for the appellee, William Frederick Roberts. Judge: SUSANO In this post-divorce proceeding, Carol Lyn Roberts (ãMotherä) seeks to relocate to North Carolina with the partiesâ minor child, Victoria Noel Roberts (DOB: June 25, 1997). William Frederick Roberts (ãFatherä) filed a petition in opposition to the move. Following a bench trial, the court determined, under Tenn. Code Ann. ¤ 36-6-108, that the parties were spending ãsubstantially equal intervals of timeä with their child and that it was in the childâs best interest to remain in Tennessee. Accordingly, the court denied Motherâs request to relocate. Mother appeals. For the reasons stated herein, we vacate the trial courtâs decision and grant Motherâs request to relocate with the child. http://www.tba.org/tba_files/TCA/2005/robertsc103105.pdf FREDDIE J. RODRIGUE v. CHARLES TRAUGHBER ET AL. Court: TCA Attorneys: Freddie J. Rodrigue, Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Jennifer L. Brenner, Nashville, Tennessee, for the appellees, Tennessee Board of Probation and Parole and Charles Traughber. Judge: KOCH This appeal arises out of a prisonerâs Petition for Writ of Certiorari seeking review of a decision of the Tennessee Board of Probation and Parole to deny him parole. Because the petition was not properly verified as required by Tenn. Code Ann. ¤ 27-8-104(a) and 106 (2000), we affirm the trial courtâs judgment dismissing the petition. http://www.tba.org/tba_files/TCA/2005/rodriguef103105.pdf IN RE T.L., N.L., & D.L. Court: TCA Attorneys: Jere Franklin Ownby III, Knoxville, Tennessee, for the appellant, C.L.R. Gary Fox, Lenoir City, Tennessee, for the appellant, D.F. Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Senior Counsel, and Amy T. Master, Assistant Attorney General, for the appellee, State of Tennessee Department of Childrenâs Services. Judge: SUSANO The trial court terminated the parental rights of a mother and the two fathers of her three children. 1 As to the fathers, the court terminated the rights of C.L.R. (ãFather1ä) with respect to his minor child, T.L. (DOB: September 4, 1997) and the rights of D.F. (ãFather2ä) with respect to his minor children, N.L. (DOB: September 16, 1999) and D.L. (DOB: September 11, 2000). Both fathers appeal, arguing, inter alia, that the evidence preponderates against the trial courtâs dual findings ö said by the trial court to be made by clear and convincing evidence ö that grounds for termination exist and that termination is in the best interest of the children. We affirm in part and reverse in part. http://www.tba.org/tba_files/TCA/2005/tl103105.pdf PATTI ZAKOUR v. UT MEDICAL GROUP, INC., ET AL. Court: TCA Attorneys: Daniel A. Seward of Memphis, Tennessee for Appellant, Patti Zakour John H. Dotson of Memphis, Tennessee for Appellees, UT Medical Group, Inc. and Scott Craig,M.D. Judge: CRAWFORD The jury returned a verdict for the defendant doctors and medical clinic in this medicalmalpractice action. The plaintiff argues on appeal that the trial court committed reversible error at several stages of the trial, including jury selection, witnessâ testimony and jury instructions.Further, the plaintiff argues that there was insufficient evidence to support the juryâs verdict. We affirm the trial court. http://www.tba.org/tba_files/TCA/2005/zakourp103105.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! 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