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| TODAY'S OPINIONS: Wednesday, December 21, 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
07 - TN Court of Appeals
00 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
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Howard H. Vogel
| IN RE B.N.W.
L.R. DeMarco, Nashville, Tennessee, for the Appellant, Debra Whitehead.
Mike J. Urquhart, Nashville, Tennessee, for the Appellant, William C. Spann.
Stephen S. Ogle, Nashville, Tennessee, for the Appellee, Robbie Whitehead.
This appeal involves the decision of the Davidson County, Tennessee, Juvenile Court to decline to
exercise jurisdiction, other than temporary emergency jurisdiction, in a child custody case under the
Uniform Child Custody Jurisdiction and Enforcement Act. The judgment of the trial court is
IN RE ESTATE OF JOSEPH OWEN BOOTE, JR.
None - bench verdict
On October 21, 2005, this court issued an opinion vacating the trial court’s December 14,
2001 order admitting Joseph Owen Boote, Jr.’s will and first two codicils to probate in solemn form.
In re Estate of Boote, No. M2002-02234-COA-R3-CV, 2005 WL 2739287, at *21 (Tenn. Ct. App.
Oct. 21, 2005). We instructed the trial court on remand to determine first whether the third codicil
to Mr. Boote’s will was properly executed, and then, if the trial court determined that it was, to
conduct further proceedings preliminary to a will contest. In re Estate of Boote, 2005 WL 2739287,
at *21. On October 31, 2005, Mr. Boote’s daughters, Helen Boote Shivers and Linda Boote
Gerritsen, filed a timely petition for rehearing, and on November 3, 2005, we entered an order
requesting supplemental briefing on one of the issues raised in the petition. Ms. Shivers and Ms.
Gerritsen, as well as Martha M. Boote, Mr. Boote’s widow, have now filed their supplemental briefs.
Having carefully considered the petition for rehearing and the supplemental briefs, we deny the
petition for rehearing.
CITY OF CLARKSVILLE v. MARCUS DIXON and ANTHONY P. BARNETT
David Haines, City Attorney, Clarksville, TN, for Appellant
Stacy A. Olson, Clarksville, TN, for Appellee, Marcus Dixon
Sharon T. Massey, Clarksville, TN, for Appellee, Anthony P. Barnett
In this appeal, we are asked to determine whether the trial court erred when it granted two petitions
for writ of certiorari, held that the city court’s penalties issued to Marcus Dixon and Anthony Barnett
violated Article VI, Section 14 of the Tennessee Constitution, and held that the city court’s
procedure for collection of fines in chronological order violated public policy. The appellant asserts
(1) that the appellees’ use of petitions for writ of certiorari were used impermissibly as a substitute
for appeal; (2) that the issues raised by the appellees in their petitions for writ of certiorari were
barred by the doctrine of res judicata; (3) that the Tennessee Supreme Court’s decision in Davis v.
City of Chattanooga, 54 S.W.3d 248 (Tenn. 2001), applied prospectively and, thus, did not apply
to the appellees’ penalties; and (4) that the city court’s collection of fines in chronological order was
not against public policy. We affirm in part and reverse in part the decision of the trial court, and
remand for further proceedings consistent with this opinion.
IN RE: ESTATE OF HAROLD L. JENKINS, DECEASED DOLORES HENRY JENKINS v. JONI L. JENKINS, ET AL.
Timothy L. Warnock, Amy C. Kurzweg, Michael D. Sontag, Nashville, TN, for Appellant
Charles W. McElroy, Brenda Rhoton Clark, Nashville, TN, for Appellees
In this appeal, we are asked by the appellant to determine whether the probate court erred when it
did not include income earned from the decedent’s intellectual property after July 1, 2000 when it
calculated the surviving spouse’s elective share under the changing fraction method pursuant to the
Tennessee Uniform Principal and Income Act. The appellees assert that this issue was decided inthe first appeal of this case and that the ruling in that appeal is the law of the case. We affirm.
W. ROBERT VANCE, JR., ET AL. v. ROBERT C. McEWAN, M.D., ET AL.
John S. Golwen and Kristen Wright, Memphis, Tennessee, for the appellant, W. Robert Vance, Jr.,
d/b/a Moriah Properties.
Blanchard E. Tual , Eric E. Hudson, and Ben Scott, Memphis, Tennessee, for the appellees, Robert
C. McEwan, M.D., Dane Flippin, M.D. and Edward Caldwell, M.D., d/b/a Park Manor Clinic, and
This case arises from lease negotiations between Plaintiff W. Robert Vance, Jr. (“Plaintiff”) and
Defendants, Robert C. McEwan, Dane Flippen, and Edward Caldwell (“the Defendants”). After the
Defendants ultimately decided not to sign a lease with Plaintiff, Plaintiff filed suit against
Defendants asserting claims for (1) breach of agreement to enter into a lease agreement; (2) breach
of lease agreement; (3) detrimental reliance; (4) fraud and misrepresentation; and (5) negligent
misrepresentation. After a trial on the merits, the trial court entered an order disposing of Plaintiff’s
contract claims. Plaintiff subsequently filed a “Motion for New Trial or, in the Alternative, to Alter
or Amend Judgment and/or Make and/or to Make Additional Findings of Fact Pursuant to Tennessee
Rules of Civil Procedure 59.02, 59.04, and 52.02,” which the trial court denied. Plaintiff appealed.
Because we find that the trial court failed to execute a final order disposing with all of Plaintiff’s
asserted causes of action, we dismiss this appeal for lack of subject matter jurisdiction under Rule
3(a) of the Tennessee Rules of Appellate Procedure.
STATE OF TENNESSEE, ET AL. v. WANDA DEAN WALLACE, ET AL.
Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; and Sharon
G. Hutchins, Assistant District Attorney General, for the appellee, State of Tennessee, on relation
of the Commissioner of the Department of Transportation.
James W. Fisher, Jr., Goodlettsville, Tennessee, for the appellee, Wanda Dean Wallace and
Montgomery County, Tennessee (for tax purposes only).
The State of Tennessee appeals the assessment of discretionary costs in an eminent domain action.
The property owner was awarded her discretionary costs after the jury awarded her damages in
excess of that tendered by the State. The State contends it is exempt from discretionary costs in
eminent domain actions. We agree.
THE WESTCHESTER COMPANY, LLC v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE
Richard M. Smith and Darren A. Olsen, Nashville, Tennessee, for the appellant, The Westchester
Karl F. Dean, Director of Law, J. Brooks Fox and John L. Kennedy, Metropolitan Attorneys,
Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County,
This dispute arose after the Metropolitan Government of Nashville and Davidson County (“Metro”)
rezoned property owned by the plaintiff, The Westchester Company, LLC (“Westchester”), from
multi-family to single-family. As a result of the zoning change, Westchester was unable to carry
through with its contract to sell the property to a third party for the development of multi-family
town houses. Westchester sought a declaratory judgment as to whether it had a vested right in the
previous zoning classification by virtue of the fact (1) that it relied upon statements made by Metro
employees regarding the then-existing zoning and Westchester’s rights under that zone; (2) that the
rezoning caused it to lose the profit it would have received under the contract; and (3) that it is
potentially liable for breach of contract. As an alternative theory of recovery, Westchester argued
that the zoning change amounted to an unconstitutional taking of its property. The trial court ruled
in favor of Metro and dismissed Westchester’s claims. Westchester appeals, but only as to the trial
court’s determination that it did not have a vested right in the previous zoning. We affirm.
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