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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


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