Opinion Flash

July 12, 2002
Volume 8 — Number 119

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.

This Issue (IN THIS ORDER):
 
04 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
10 New Opinion(s) from the Tennessee Court of Appeals
01 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


RONALD M. GUY  v.  MUTUAL OF OMAHA INSURANCE COMPANY 

Court:TSC

Attorneys:

Herbert E. Gerson and Thomas J. Walsh, Jr., Memphis, Tennessee, for
the appellant, Mutual of Omaha Insurance Company.

Donald A. Donati and William B. Ryan, Memphis, Tennessee, for the
appellee, Ronald M. Guy.

Douglas S. Johnston, Jr., Nashville, Tennessee, and R. Sadler Bailey,
Memphis, Tennessee, for the Amicus Curiae, Tennessee Trial Lawyers
Association.                         

Judge: BARKER

First Paragraph:

The principal issue in this case is whether the Tennessee
"Whistleblower" Act, Tenn. Code Ann. S 50-1-304, preempts the common
law tort of retaliatory discharge when an at-will employee is
discharged for reporting illegal or unethical activity.  The defendant
has appealed a denial of its motion for summary judgment, arguing that
section 50-1-304 governs all claims by employees who assert that they
have been discharged for whistleblowing activity and, therefore, that
the plaintiff must prove that the sole reason for his discharge was
his reporting of another agent's illegal conduct.  On appeal to this
Court, we hold (1) that the statute does not preempt the common law
tort, and thus, under the common law, the plaintiff need only
demonstrate that his whistleblowing activity was a substantial factor
motivating his discharge; and (2) that a genuine issue of material
fact exists as to whether the plaintiff's whistleblowing activity was
a substantial factor in his discharge.  Consequently, we affirm the
judgment of the Court of Appeals denying summary judgment in this
case.

http://www.tba.org/tba_files/TSC/guyronaldm.wpd

STATE OF TENNESSEE  v.  AARON JAMES 

Court:TSC

Attorneys:

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Gordon W. Smith, Associate Solicitor General, for
the appellant, State of Tennessee.

Jeffrey A. DeVasher, Nashville, Tennessee, for the appellee, Aaron
James.                          

Judge: BARKER

First Paragraph:

The defendant, Aaron James, was charged with aggravated robbery,
especially aggravated kidnapping, and attempted felony escape.  Under
the felony escape statute, Tenn. Code Ann. S 39- 16-605, the State
sought to prove, as an element of the offense, that the defendant was
being held for a felony at the time of his escape.  The defendant
offered to stipulate that he had been convicted, and was being held as
a felon in lieu of having his specific prior offenses presented to the
jury.  The State refused to stipulate, and at trial, the deputy warden
of the prison testified to each of the defendant's prior felony
convictions to prove the defendant's status as a convicted felon.  The
defendant was subsequently convicted on all charges.  He appealed his
aggravated robbery and especially aggravated kidnapping convictions,
arguing that his offer to stipulate rendered evidence of his prior
convictions irrelevant and unfairly prejudicial.  The Court of
Criminal Appeals reversed the defendant's judgments of conviction,
holding that the trial court erred by allowing the State to introduce
evidence of the defendant's prior felonies to prove the
"prior-conviction" element of the offense of felony escape.  On appeal
by the State, we hold (1) that the defendant's prior felonies
constitute relevant evidence establishing the prior-conviction element
of the offense of felony escape; but (2) that when the sole purpose of
introducing the defendant's prior convictions is to prove the
"prior-conviction" element of the charged offense, and when the
defendant offers to stipulate to this element, the probative value of
this evidence is, as a matter of law, outweighed by the risk of unfair
prejudice under Tennessee Rule of Evidence 404(b).  Consequently,
because we find that the error in permitting the State to introduce
the names of the defendant's prior felonies was not harmless, we
reverse his convictions for aggravated robbery and especially
aggravated kidnapping, and we remand the case for a new trial.  The
judgment of the Court of Criminal Appeals is affirmed.

http://www.tba.org/tba_files/TSC/jamesaaron.wpd

STATE OF TENNESSEE v. JOHN EDWARD JOHNSON, JR.

Court:TSC

Attorneys:     

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Mark E. Davidson, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and James T. Cannon,
Assistant District Attorney General, for the appellant, State of
Tennessee.

Lance E. Webb, Union City, Tennessee, and Ronald D. Krelstein,
Germantown, Tennessee, for the appellee, John Edward Johnson, Jr.

Judge: ANDERSON

First Paragraph:

We granted review to address the following certified question that was
reserved by the defendant following his guilty plea to unlawful
possession of a weapon pursuant to Tenn. Code Ann. S
39-17-1307(b)(1)(A):  "After an individual has had his full rights of
citizenship restored pursuant to Tenn. Code Ann. S 40-29-101, et seq.,
following a conviction of aggravated assault with a deadly weapon, can
he be convicted of a violation of Tenn. Code Ann. S
39-17-1307(b)(1)(A), or is he allowed to possess a handgun?"  A
majority of the Court of Criminal Appeals concluded that the defendant
could lawfully possess a handgun in his residence because his
citizenship rights had been restored pursuant to Tenn. Code Ann. S
40-29-101, et seq.

We granted the State's application for permission to appeal to address
this issue of first impression.  After reviewing the record and
applicable authority, we hold that the legislature intended that a
person who has been convicted of a felony involving the use or
attempted use of force, violence, or a deadly weapon cannot possess a
handgun, even where his or her citizenship rights have been restored. 
Accordingly, the judgment of the Court of Criminal Appeals is
reversed, and this case is remanded to the trial court for further
proceedings consistent with this opinion.

http://www.tba.org/tba_files/TSC/johnsonjohnedward.wpd

ROBERT L. POWELL, JR. v. BLALOCK PLUMBING AND ELECTRIC AND HVAC, INC.,
et al.

Court:TSC

Attorneys:

David Brett Burrow and Gordon C. Aulgur, Nashville, Tennessee, and
Delicia R. Bryant, Knoxville, Tennessee, for the appellants, Blalock
Plumbing Electric & HVAC, Inc. and Federated Insurance Company.

Clinton W. Swafford, John Robert Colvin, and Michael D. "Mickey" Hall,
Winchester, Tennessee, for the appellee, Robert C. Powell.

Judge: HOLDER

First Paragraph:

The sole issue in this workers' compensation appeal is whether Tenn.
Code Ann. S 50-6-241(a)(1) applies to limit the claimant's award of
permanent partial disability to two and one-half times the medical
impairment rating of 10% to the body as a whole.  The trial court
determined that the claimant had not made a meaningful return to work
and awarded the claimant four times the medical impairment rating, or
40% to the body as a whole.  The Special Workers' Compensation Appeals
Panel agreed with the trial court's ruling.  We granted full court
review of this case.  After careful consideration, we affirm the trial
court's judgment.

http://www.tba.org/tba_files/TSC/powellr_opn.wpd

ROBERT L. POWELL, JR. v. BLALOCK PLUMBING AND ELECTRIC AND HVAC, INC.,
et al.

Court:TSC

BIRCH CONCURRING

http://www.tba.org/tba_files/TSC/powellr_con.wpd

ROBERT L. POWELL, JR. v. BLALOCK PLUMBING AND ELECTRIC AND HVAC, INC.,
et al.

Court:TSC

BARKER DISSENTING

http://www.tba.org/tba_files/TSC/powellr_dis.wpd

ALFRED AKIN, et al. v. KYLAN THOMPSON, et al.

Court:TCA

Attorneys: 

John B. Carlson and Anna B. Williams, Nashville, Tennessee, for the
appellants, Alfred Akin and wife, Peggy Akin

Michael H. Johnson and K. Melissa Bradford, Nashville, Tennessee, for
the appellees, Kylan Thompson and Pamela Williams                         

Judge: JONES

First Paragraph:

The plaintiff  Alfred Akin was rear-ended by a vehicle driven by the
defendant Kylan Thompson, who was uninsured.  The Allstate Insurance
policy on the Akin vehicle provided uninsured motorist coverage with
limits of $100,000 per person and $300,000 per occurrence.  Though in
his personal vehicle, Mr. Akin was in the course and scope of his
employment with the Metropolitan Nashville Water Works when injured. 
Metro government does not have a workers' compensation program, but
has a benefit program for on-the-job injuries, under which it paid
more than $100,000 for medical bills and disability benefits.   The
trial court held that Allstate's limits were reduced by amounts paid
"under any workers' compensation law, disability law, or similar law .
. . ." and also found that the loss of consortium claim of Mrs. Akin
was derivative in nature and subject to the same $100,000 "each
person" limit and reduction.  We affirm the trial court's grant of
summary judgment in favor of Allstate.

http://www.tba.org/tba_files/TCA/akinalfred.wpd

JACK COLBOCH v. QUALITY FORD, INC., et al. 

Court:TCA

Attorneys:  

Mark A. Cowan, Morristown, Tennessee, for the Appellant, Quality Ford,
Inc.

Jana D. Terry, Morristown, Tennessee, for the Appellee, Jack Colboch. 
                      

Judge: GODDARD

First Paragraph:

finding Quality Ford, Inc., an automobile dealership, liable for
damages caused to Jack Colboch's automobile by an independent body
shop pursuant to a manufacturer's warranty.  We affirm the decision of
the Trial Court.

http://www.tba.org/tba_files/TCA/colbochjack.wpd

RICKEY STEPHAN COTTEN v. TENNESSEE BOARD OF PAROLES

Court:TCA

Attorneys:

Rickey S. Cotten, Lowell, Florida, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Quisha A. Light, Assistant Attorney General, for
the appellee, Tennessee Board of Probation and Paroles.                        

Judge: COTTRELL

First Paragraph:

Petitioner was arrested in Florida for grand theft auto while on
parole under a sentence in Tennessee.  After beginning his sentence on
the Florida conviction in a Florida prison, the Petitioner filed a
"request for leave to waive revocation hearing, admission to violation
of parole and request to have parole hearing in absentia and
affidavit" with the Board of Paroles of Tennessee.  The Board did not
respond, so Petitioner filed a writ of mandamus with the Circuit Court
for Davidson County to compel the Board to render a decision regarding
his parole revocation.  The trial court denied the writ and dismissed
the petition because mandamus was not the appropriate remedy and the
Petitioner was not in custody of the State of Tennessee for the
purposes of parole revocation.  We agree and affirm the decision of
the trial court.

http://www.tba.org/tba_files/TCA/cottenr.wpd

WILLA BELL HUSKEY v.  JERRY MARTIN

Court:TCA

Attorneys:  

Steven B. Ward, Madisonville, for the appellant, Jerry Martin.

Clifford E. Wilson, Madisonville, for the appellee, Willa Bell Huskey.                        

Judge: SUSANO

First Paragraph:

This is a property line dispute.  The defendant Jerry Martin appeals
the trial court's finding that the parties' shared boundary line is as
alleged in the original complaint.  Martin argues that the evidence
preponderates against the trial court's factual findings regarding the
location of the boundary line.  We affirm the trial court's judgment.

http://www.tba.org/tba_files/TCA/huskeywb.wpd

IN RE:  THE ESTATE OF LONZO H. KELLEY

Court:TCA

Attorneys:   

Rodger N. Bowman and Lisa Kesting Best, Clarksville, Tennessee, for
the Appellant The Estate of Lonzo H. Kelley.


Richard L. Colbert, J. Frank Rudy, Jr., and W. Gregory Miller,
Nashville, Tennessee, for the Appellee Heritage Bank.                       

Judge: SWINEY

First Paragraph:

Lonzo Kelley operated a grocery store and borrowed a total of $250,000
from Heritage Bank ("Defendant") to operate the store.  After Mr.
Kelley died and there was no person or entity willing to assume
control of the store, Defendant assumed operation of the store with
the stated intent of protecting the assets, some of which were
perishable.  Defendant also believed the store would be more valuable
at the time of foreclosure if it continued to remain open up until the
time of sale.  Defendant purchased new inventory and continued to
operate the store until foreclosure took place.  After foreclosure,
and after deducting all expenses, etc., approximately $3,874.88
remained, which Defendant kept on deposit.  Several years later, The
Estate of Lonzo H. Kelley ("Plaintiff") filed suit making numerous
challenges to Defendant's accounting practices, the manner in which
Defendant operated the store, as well as its legal right to assume
control of the store.  Both parties filed motions for summary
judgment.  The Trial Court granted judgment to Plaintiff in the amount
of $9,132.09, but determined Defendant was within its rights to assume
control of the store and had not engaged in any wrongful acts while
operating the store.  Plaintiff appeals.  We affirm.

http://www.tba.org/tba_files/TCA/kelleyl.wpd

MARY EDITH KELLEY, et al. v. MAHLON JOHNS

Court:TCA

Attorneys:  

Billy C. Jack and Claudia S. Jack, Columbia, Tennessee, for the
appellant Mahlon Johns.

David L. Allen, Lawrenceburg, Tennessee, and Glenn L. Cox, Columbia,
Tennessee, for the appellees, Mary Edith Kelley, Linda Orton, Evelyn
Dolley, Nina Severson, Billie Johns, and Frankie Bostick.

Judge: KOCH

First Paragraph:

This appeal involves an intra-family dispute over the validity of an
88-year-old decedent's will leaving his farm to one of his nine
children.  After the will was admitted to probate in the Maury County
Probate Court, six of the decedent's children filed suit in the
Circuit Court for Maury County asserting that their father lacked
testamentary capacity when he executed the will and that the will had
been procured by undue influence by the child who received the farm. 
A jury determined that a confidential relationship existed between the
decedent and his son when the disputed will was executed and that the
will was procured by undue influence.  Accordingly, the trial court
entered an order invalidating the will and setting aside the pending
probate proceeding.  On this appeal, the child who received the farm
from his father insists that the evidence does not support the jury's
findings that he had a confidential relationship with his father and
that he exerted undue influence over his father with regard to the
substance of the will.  We have determined that the record contains
material evidence to support the jury's verdict and, therefore, affirm
the judgment.

http://www.tba.org/tba_files/TCA/kelleyme.wpd

EMILY LEWIS v. LIFE CARE CENTERS OF AMERICA, INC.

Court:TCA

Attorneys:

Jes Beard, Chattanooga, Tennessee, for the Appellant, Emily Lewis

Robert W. Sauser and Alison T. Shaw, Chattanooga, Tennessee, for the
Appellee, Life Care Centers of America, Inc.                     

Judge: GODDARD

First Paragraph:

Emily Lewis, a student enrolled in a Certified Nursing Assistant's
training program operated and supervised by Nursetrainers, Inc., sues
Life Care Centers of America, Inc.  The suit seeks damages for
injuries resulting to Ms. Lewis, who was taking training to become a
Certified Nursing Assistant.  As a result of Life Care's negligence,
the original complaint alleged several other causes of action, all of
which have been abandoned on appeal.  We affirm.

http://www.tba.org/tba_files/TCA/lewisemily.wpd

ROBERT F. MARENGO AND FRANCINE R. MARENGO V. TERRY BOWEN
(Original opinion filed 12/10/01 vacated and replaced with opinion
filed 7/12/02.)

Court:TCA

Attorneys:

Jeffrey L. Levy, Nashville, Tennessee, and Michael Fox, Nashville,
Tennessee, for the appellants, Robert and Francine Marengo.

Sharon Potter, Crossville, Tennessee, for the appellee, Terry Bowen.

Judge: ASH

First Paragraph:

This is an appeal from the judgment of the Chancellor regarding the
judicial dissolution of a continuing partnership.  The trial court
determined the valuation of the withdrawing partner's interest in the
company, and his obligation to the partnership, should be accounted
for when there is an actual distribution of funds.  The trial court
also concluded it was proper to add an additional $20,000 as a going
concern adjustment to the valuation of the partnership, the
calculation of certain salary adjustments were proper, a marketability
and/or minority discount does not apply to the partnership, and an
adjustment for a portion of the continuing partnership's legal and
professional expenses was granted.  After reading the record and
hearing oral arguments, this Court affirms the trial court's
determination offsetting the withdrawing partner's debt to the
partnership when there is an actual distribution of funds and reverses
the trial court's addition of $20,000 as a going concern value to the
valuation of the partnership.  We also affirm the trial court's salary
adjustments, refusal to apply a minority and/or marketability
discount, and adjustment for a portion of the partnership's legal and
professional expenses.  The judgment of the trial court is affirmed in
part, reversed in part, and remanded for recalculation of the value of
the withdrawing partner's interest as consistent with this order. 
Costs of this appeal shall be split between the appellant and the
appellee.

http://www.tba.org/tba_files/TCA/marengoro1.wpd

SCOTT D. MICHAEL v. ELLIS P. JAKES

Court:TCA

Attorneys: 

Randall W. Burton, Brentwood, Tennessee, for the appellant, Scott D.
Michael.

Cecil D. Branstetter, Carrol D. Kilgore, Nashville, Tennessee, for the
appellee, Ellis P. Jakes.                         

Judge: COTTRELL
 
First Paragraph:

This appeal involves two neighbors, Mr. Michael and Mr. Jakes, who
share a boundary line and now dispute who owns land that is within the
calls of Mr. Jakes's deed but has been used by Mr. Michael, in part
for a portion of the driveway to his house. Mr. Michael lived on his
lot for eleven (11) years prior to the filing of this suit and
believed for some time after he purchased his lot that his driveway
and a strip of land adjacent to it were within the calls of his deed. 
Mr. Jakes had a survey of the land performed, which showed that a
portion of the driveway and the strip adjacent to it were owned by Mr.
Jakes and not Mr. Michael.  Mr. Jakes erected a fence along the
driveway.  Mr.  Michael then filed suit claiming that he owned the
disputed property under the doctrine of adverse possession or, in the
alternative, owned the right to use the property by prescriptive
easement.  Mr. Michael also claimed an interest in the land pursuant
to Tenn. Code Ann. S 28-2-103, the statute of limitations provision,
which bars ejectment of an adverse possessor after seven (7) years of
continued, open, and notorious use and possession.  Mr. Michael later
amended his complaint to allege forcible entry and detainer by Mr.
Jakes.  The trial court granted summary judgment for Mr. Jakes and
stated in its final order that Mr. Michael had no interest in the
property at issue.  Mr. Michael now appeals that ruling.  We reverse
the grant of summary judgment in part.

http://www.tba.org/tba_files/TCA/michaels.wpd

CHARLES MONTAGUE v. CHIEF RON STREET, et al.

Court:TCA

Attorneys:

Charles Montague, Mountain City, Tennessee, Appellant, Pro Se

John Rambo, Johnson City, Tennessee, for the Appellees, Chief of
Police Ron Street, City of Johnson City, Washington County, TN                   

Judge: GODDARD

First Paragraph:

This is a suit by Charles Montague, an inmate of the Penal System of
this State, who was convicted of first degree murder and is presently
serving a life sentence.  The Defendants are Ron Street, Chief of
Police of the City of Johnson City and Washington County.

http://www.tba.org/tba_files/TCA/montaguecharles1.wpd

STATE OF TENNESSEE v. JOHN EARL TURNER, ALIAS 

Court:TCCA

Attorneys:

Mark Stephens, District Public Defender, and Aubrey L. Davis,
Assistant Public Defender, Knoxville, Tennessee, for the appellant,
John Earl Turner, Alias.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Robert L. Jolley, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, John Earl Turner, appeals as of right from the judgment
of the trial court, which found him to be in violation of the terms of
the probation he was serving for two separate, non- related
convictions.  After a hearing, the trial judge ordered the Defendant
incarcerated for the  balance of the sentences, which were being
served consecutively to each other.  We affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TCCA/turnerje.wpd

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