TennBarU End-of-Year CLE Blowout offers 150+ courses If you still need a few hours of CLE credit to meet your 2005 obligations, TennBarU is ready to help. From Dec. 27 to Dec. 30, TennBarU will be showing videos of our top CLE programs from 7 a.m. to 7 p.m. every day. Drop in and take as many hours as you need. Four programs will be showing at all times. https://www.tba.org/onsiteinfo/endofyear_2005.html    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 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 IN RE B.N.W. Court: TCA Attorneys: 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. Judge: 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 affirmed. http://www.tba2.org/tba_files/TCA/2005/bnw122105.pdf IN RE ESTATE OF JOSEPH OWEN BOOTE, JR. Court: TCA Attorneys: None - bench verdict Judge: KOCH 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. http://www.tba2.org/tba_files/TCA/2005/bootej122105.pdf CITY OF CLARKSVILLE v. MARCUS DIXON and ANTHONY P. BARNETT Court: TCA Attorneys: 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 Judge: HIGHERS 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. http://www.tba2.org/tba_files/TCA/2005/clarksville122105.pdf IN RE: ESTATE OF HAROLD L. JENKINS, DECEASED DOLORES HENRY JENKINS v. JONI L. JENKINS, ET AL. Court: TCA Attorneys: Timothy L. Warnock, Amy C. Kurzweg, Michael D. Sontag, Nashville, TN, for Appellant Charles W. McElroy, Brenda Rhoton Clark, Nashville, TN, for Appellees Judge: HIGHERS 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. http://www.tba2.org/tba_files/TCA/2005/jenkinsh122105.pdf W. ROBERT VANCE, JR., ET AL. v. ROBERT C. McEWAN, M.D., ET AL. Court: TCA Attorneys: 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 Patrick Lloyd. Judge: FARMER 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. http://www.tba2.org/tba_files/TCA/2005/vancew122105.pdf STATE OF TENNESSEE, ET AL. v. WANDA DEAN WALLACE, ET AL. Court: TCA Attorneys: 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). Judge: CLEMENT 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. http://www.tba2.org/tba_files/TCA/2005/wallacew122105.pdf THE WESTCHESTER COMPANY, LLC v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE Court: TCA Attorneys: Richard M. Smith and Darren A. Olsen, Nashville, Tennessee, for the appellant, The Westchester Company, LLC. 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, Tennessee. Judge: SUSANO 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. http://www.tba2.org/tba_files/TCA/2005/westchester122105.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.tba2.org/op_flash.php UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! 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