Opinion Flash

September 22, 2003
Volume 9 — Number 172

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):
00 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
05 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


AMPRITE ELECTRIC COMPANY v. TENNESSEE STADIUM GROUP, LLP

Court:TCA

Attorneys:                          

Phillip Byron Jones, Nashville, Tennessee, attorney for appellant,
Amprite Electric Company.

Craig V. Gabbert, Jr., Nashville, Tennessee, and F. Barry McCabe,
Atlanta, Georgia, for the appellee,, Tennessee Stadium Group, LLP.

Todd E. Panther, Nashville, Tennessee, for the Amicus Curiae, The
American Subcontractors Association, American Subcontractors
Association of Middle Tennessee, and American Subcontractors
Association of Western Tennessee.

Judge: INMAN

First Paragraph:

The electrical subcontractor on the Adelphia Stadium job was required
by the contractor, on 212 occasions, to perform extra work.  Although
the subcontract provided that written change orders must precede and
authorize extra work, this requirement was soon mutually abandoned
because the contractor, encouraged by the owner, was concerned about a
timely completion.  The principal issue concerns the dollar amount of
compensation for the extra work.  Amprite priced its extra work
according to manuals used in the construction industry, as contrasted
to its actual costs plus 10 percent, as the subcontract provides. 
Amprite concedes that although its actual costs plus 10 percent were
substantially less than the amounts claimed, the contractor was
estopped to deny the greater compensation.  The trial court held that
the contract was abandoned and that, in lieu, a different contract
would be implied.  Amprite was accordingly awarded compensation for
"8686 hours never worked, $90,245.00 for materials never purchased and
$6,877.00 for taxes never paid,"for a total recovery of $1,131,311.66.
 Contractor appeals insisting that the contract was not abandoned and
that its provisions control.  We hold that the requirement of written
change orders was waived by mutual agreement but that the remainder of
the contract was enforceable.  The judgment is modified to allow a
recovery of $170,084.00.

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

LORI ANN BATES v. JOSEPH LYNN BATES

Court:TCA

Attorneys:                          

Andy L. Allman, Hendersonville, For appellant, Joseph Lynn Bates

Thomas J. Drake, Jr., Nashville, For Appellee, Lori Ann Bates

Judge: CRAWFORD

First Paragraph:

This is an appeal from a final decree of divorce, involving issues of
appreciation involving Husband's property, award of attorney fees, and
division of marital property and debt.  Husband appeals.  We affirm as
modified herein and remand for such further proceedings as may be
necessary.

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

DENVER AREA MEAT CUTTERS AND EMPLOYERS PENSION PLAN, DERIVATIVELY ON
BEHALF OF CLAYTON HOMES, INC. v. JAMES L. CLAYTON, ET AL.

Court:TCA

Attorneys:                          

John A. Lucas and John G. Brock, Knoxville, Tennessee; Edward J. Fuhr,
Stacy M. Colvin, Eric H. Feiler, and Terence J. Rasmussen, Richmond,
Virginia; Gregory P. Williams, Wilmington, Delaware; and Jerry G.
Cunningham, Maryville, Tennessee, for the appellants, James L.
Clayton, Kevin T. Clayton, C. Warren Neel, B. Joe Clayton, Steven G.
Davis, Dan W. Evins, Wilma H. Jordan, Thomas N. McAdams, and Clayton
Homes, Inc.

George E. Barrett, Douglas S. Johnston, Jr., Timothy L. Miles, James
G. Stranch, III, and C. Dewey Branstetter, Nashville, Tennessee;
Darren J. Robbins, Randall J. Baron, A. Rick Atwood, Jr., and Mary K.
Blasy, San Diego, California; and David R. Duggan, Maryville,
Tennessee, for the appellees, Denver Area Meat Cutters and Employers
Pension Plan.

Judge: SUSANO

First Paragraph:

The focus of this litigation is on the merger of (1) Clayton Homes,
Inc., a Delaware corporation, which was, pre-merger, a publicly-owned
corporation whose stock was traded on the New York Stock Exchange,
with (2) B Merger Sub Inc., also a Delaware corporation.  B Merger Sub
Inc. was, pre-merger, a wholly-owned subsidiary of Berkshire Hathaway,
Inc.  The latter company is a publicly-owned Delaware corporation; its
stock is traded on the New York Stock Exchange.  We granted an
extraordinary appeal to the defendant Clayton Homes, Inc., and the
individual defendants, all of whom were members of that corporation's
pre-merger board of directors, in order to review the trial court's
order of August 18, 2003, attached as Appendix A to this opinion.  The
defendants' application for review - filed pursuant to the provisions
of Tenn. R. App. P. 10 - asks us to determine "(1) whether the [trial
court] properly granted Plaintiff's request for a [temporary
restraining order]; (2) whether the [trial court] properly found that
Plaintiff retained standing to maintain its derivative claims [;]
and[] (3) whether the [trial court] properly lifted the stay
previously issued in this action."  We hold (1) that the trial court's
"status quo" order - essentially a temporary injunction - was
erroneously issued and, accordingly, we vacate that order; (2) that
the plaintiff lacks standing to pursue its stockholders' derivative
claims, and, consequently, we vacate the trial court's order denying
the defendants' motion to stay as to those claims; (3) that the trial
court should dismiss the plaintiff's stockholders' derivative claims
upon the filing of an appropriate motion to dismiss; and (4) that the
trial court did not err in permitting, at this time, the plaintiff's
putative class action lawsuit for damages to proceed forward in the
court below.  The trial court's order is vacated in part and affirmed
in part and this case is remanded to the trial court with
instructions.  We direct that the order issued pursuant to this
opinion will be stayed until 4:30 p.m. EDT, September 8, 2003, in
order to afford each of the parties an opportunity to request further
appellate review by the Supreme Court.

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

JOHN DOE 1, A MINOR CHILD, BY NEXT FRIEND, JANE DOE 1; JANE DOE 1,
INDIVIDUALLY; AND JOHN DOE 2 v. ROMAN CATHOLIC DIOCESE OF NASHVILLE,
ET AL.

Court:TCA

Attorneys:                          

John A. Day, Christopher J. Pittman, Kelly J. Smits, Brentwood,
Tennessee, for the appellants, John Doe 1, Jane Doe 1, and John Doe 2.

Thomas F. Mink, Keith W. Blair, Nashville, Tennessee, for the
appellee, Roman Catholic Diocese of Nashville.

Judge: COTTRELL

First Paragraph:

This appeal involves claims of intentional infliction of emotional
distress through outrageous conduct.  John Doe 1, his mother, and John
Doe 2 seek to hold the Roman Catholic Diocese of Nashville liable for
injuries caused by the alleged outrageous conduct of the Diocese in
its dealings with Edward McKeown, a former priest, who sexually
molested John Doe 1 and John Doe 2 a number of years after his
affiliation with the Diocese ended.  The trial court granted the
Diocese's summary judgment motion, finding the Does had failed as a
matter of law to satisfy the threshold requirements for stating a
claim for the tort of outrageous conduct.  The plaintiffs appeal that
decision.  Because we find the summary judgment motion was properly
granted, we affirm the trial court.

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

TRINITY INDUSTRIES, INC. v. McKINNON BRIDGE COMPANY, INC.

Court:TCA

Attorneys:                          

David J. Sneed, Cynthia B. Ferguson, Brentwood,  For Appellant,
McKinnon Bridge Company, Inc.

Hugh C. Howser, Jr., Mary Ellen Morris, David L. Johnson, Nashville,
For Appellee, Trinity Industries, Inc.

Judge: CRAWFORD

First Paragraph:

In this case, appellant-contractor for construction of a bridge
entered into a contract with appellee-subcontractor for the
fabrication and delivery of structural steel.  By virtue of an
indemnity clause in the contract, the trial court held the contractor
liable to the subcontractor for the amounts expended by the
subcontractor in settlement of a lawsuit filed against it and for the
expenses incurred in the defense of the lawsuit.  Contractor appeals. 
We affirm.

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

STATE OF TENNESSEE v. CHRISTOPHER G. GREENWOOD
REVISED OPINION WITH COURT MEMO

Court:TCCA

Attorneys:                          

Kenneth Quillen, Nashville, Tennessee, for the appellant, Christopher
G. Greenwood.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Georgia B. Felner, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The defendant was convicted of driving under the influence of an
intoxicant with a blood alcohol content of .10% or more, third
offense.  On appeal, he contends: (1) the trial court erred in denying
his motion for a mistrial after the jury heard evidence of other
crimes committed by the defendant; (2) the trial court erred in
barring testimony of the arresting officer that he opined the
defendant's blood alcohol content was rising at the time of the blood
withdrawal; and (3) the evidence was insufficient to support the
conviction because the state presented no evidence extrapolating his
.12% test result back to the time he was driving.  We affirm the
judgment of the trial court.

REVISED OPINION
http://www.tba.org/tba_files/TCCA/greenw_opn.wpd

COURT MEMO
http://www.tba.org/tba_files/TCCA/greenw_memo.wpd

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