Opinion Flash

August 31, 2004
Volume 10 — Number 168

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):
02 New Opinion(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
01 New Opinion(s) from the Tennessee Court of Criminal Appeals
03 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


CONNIE LEE ARNOLD v. STATE OF TENNESSEE

Court:TSC

Attorneys:                          

Mark A. Brown, Knoxville, Tennessee, for the Appellant-Petitioner,
Connie Lee Arnold.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Elizabeth B. Marney, Assistant Attorney
General, for the Appellee-Respondent, State of Tennessee.

Judge: HOLDER

First Paragraph:

We granted permission to appeal to determine whether the petitioner's
petition for post-conviction relief states a colorable claim of
ineffective assistance of counsel.  We hold that the petition does
state a colorable claim.  Therefore, the judgment of the Court of
Criminal Appeals is reversed, and the case is remanded to the
post-conviction court for the appointment of counsel.

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

SHARON TAYLOR  v.  DOUGLAS BUTLER and CITY AUTO SALES
WITH CONCURRING AND DISSENTING IN PART OPINION

Court:TSC

Attorneys:                          

Joseph D. Barton, Millington, Tennessee, for the appellant, City Auto
Sales.

Sam F. Cole, Jr., Memphis, Tennessee, for the appellee, Sharon Taylor.

Judge: BARKER

First Paragraph:

We granted permission to appeal in this case to determine whether a
claim for fraudulent inducement to a contract must be submitted to
arbitration when the contract's arbitration clause covers "all claims,
demands, disputes or controversies" and states that it is governed by
the Federal Arbitration Act ("FAA").  We hold that parties may agree
to arbitrate claims of fraudulent inducement despite prohibition of
arbitration of such claims under Tennessee law, and because the
parties in this case specifically agreed that the FAA governs the
arbitration clause, they agreed to arbitrate the claim for fraudulent
inducement of the contract.  However, we also find that the
arbitration clause in this case is unconscionable and therefore void
because it reserves the right to a judicial forum for the defendants
while requiring the plaintiff to submit all claims to arbitration. 
For these reasons, the trial court's dismissal of the complaint is
overruled, and the decision of the Court of Appeals is affirmed.

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

CONCURRING AND DISSENTING IN PART OPINION
http://www.tba.org/tba_files/TSC/taylorsharon_con.wpd

DAVID B. CLONINGER v. CITY OF DYERSBURG, TENNESSEE, ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

W. Lewis Jenkins, Jr., and Mark L. Hayes, Dyersburg, Tennessee, for
the Appellant, David B. Cloninger.

John D. Burleson and Latosha Mason Dexter, Jackson, Tennessee, for the
Appellees, City of Dyersburg, Tennessee, and TML Risk Management Pool.

Judge: ANDERSON

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  The
Chancellor determined that the employer rebutted the statutory
presumption that the employee's stroke arose out of his employment as
a police officer, see Tenn. Code Ann. S 7-51-201(a)(1) (1998), and
that the employee failed to establish that the stroke arose out of his
employment.  After reviewing the record and applicable authority, we
conclude that the evidence in the record does not preponderate against
the Chancellor's findings.  We therefore affirm the judgment.

http://www.tba.org/tba_files/TSC_WCP/cloningerdb.wpd

EDWIN R. OLIVER EX REL. EDWIN C. OLIVER v. PROLOGIS TRUST, ET 

Court:TSC - Workers Comp Panel

Attorneys:                          

John Robert Cannon, Jr., Memphis, Tennessee, for appellant, ProLogis
Trust.

Clyde W. Keenan, Memphis, Tennessee, for appellee, Edwin R. Oliver,
Individually as next friend of Edwin C. Oliver, a minor.

Judge: WEATHERFORD

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann.  S 50-6-225(e)(3) for hearing and reporting to
the Supreme Court of findings of facts and conclusions of law. In this
case the trial court held that ProLogis Trust and Steve Graves were
employers of the employee, Edwin C. Oliver pursuant to Tenn. Code Ann.
S 50-6-113 and awarded workers' compensation benefits for an injury to
his left lower extremity.  The sole issue presented for review is
whether the defendant ProLogis Trust, at the time of the employee's
accident, was the employee's statutory employer as defined by Tenn.
Code Ann. S 50-6-113, and therefore liable for workers' compensation
benefits.  For the reasons discussed in this opinion, we find that the
judgment of the trial court should be reversed as to the defendant,
ProLogis Trust

http://www.tba.org/tba_files/TSC_WCP/oliveredwin.wpd

BRADLEY C. FLEET, ET AL. v. LEAMON BUSSELL, ET AL.

Court:TCA

Attorneys:                          

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellant,
Integon General Insurance.

Philip L. Boyd, Rogersville, Tennessee, and Jeffrey W. Helton,
Pineville, Kentucky, for the appellees, Bradley C. Fleet and Herbert
C. Fleet, Jr.

Judge: SUSANO

First Paragraph:

Bradley C. Fleet and his father, Herbert C. Fleet, Jr., residents of
the state of Virginia, sued tortfeasors Leamon Bussell and Clarence
Bussell, residents of Claiborne County, seeking damages arising out of
an automobile accident in Claiborne County involving vehicles driven
by the plaintiff Bradley C. Fleet and the defendant Leamon Bussell. 
The plaintiffs caused process to be served upon their uninsured
motorist carrier, Integon General Insurance ("Integon").   The trial
court granted the plaintiffs' motion for summary judgment against
Integon, finding that Virginia law - which is indisputably applicable
in this case - permits the stacking of uninsured motorist/underinsured
motorist ("UM/UIM") coverage.  Integon appeals.  We reverse the trial
court's decree granting the plaintiffs summary judgment.  Further, we
grant Integon's motion for summary judgment and dismiss the
plaintiffs' claim against Integon.

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

MITCHELL LLOYD MAGILL v. MARY R. MAGILL

Court:TCA

Attorneys:                          

Scarlett Beaty Latham, Albany, Kentucky, for the appellant, Mitchell
Lloyd MaGill.

Tom McFarland, Kingston, Tennessee, for the appellee, Mary R. MaGill.

Judge: SUSANO

First Paragraph:

This is a divorce case.  The trial court granted Mary R. MaGill
("Wife") a divorce based upon the inappropriate marital conduct of her
spouse, Mitchell Lloyd Magill ("Husband"); awarded Wife rehabilitative
alimony of $600 per month for four years, plus attorney's fees of
$600; and divided the parties' marital property.  Husband appeals the
trial court's award of rehabilitative alimony.  In a separate issue,
Wife contends that the trial court failed to divide marital assets in
the form of two businesses, i.e., MaGill Electric and C Lounge.  She
also seeks an award of damages for a frivolous appeal.  We affirm.

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

ROANE COUNTY v. WESTON TUCKER, ET AL.

Court:TCA

Attorneys:                          

Tom McFarland, Kingston, Tennessee, for the appellant, Roane County.

Jack H. McPherson, Jr., Kingston, Tennessee for the appellees, Weston
Tucker and Mary Louise Tucker.

Judge: SUSANO

First Paragraph:

Weston Tucker and Mary Louise Tucker ("the defendants") subdivided and
sold land in Roane County for residential use.  Roane County filed a
declaratory judgment action against the defendants contending that the
defendants "have failed to have a subdivision plat approved by the
Regional Planning Commission" and that the new road/easement
constructed by the defendant is unpaved and "approximately thirteen
(13) feet wide", and "drainage has generated a complaint by a
neighboring property owner."  Roane County asked the court to, among
other things, declare that the land in question is subject to the
Roane County Subdivision Regulations ("the regulations"); grant
injunctive or other relief; enforce the regulations; and declare the
rights and/or liabilities of each party under the regulations.  In
their answer, the defendants contend that an official in the Roane
County Zoning Office represented to them that the subdivision of land
into parcels of more than 5 acres does not need approval from the
Roane County Planning Commission ("the planning commission").  The
trial court dismissed the case, finding, among other things, that
Roane County's actions in attempting to prosecute the defendants
civilly and criminally were "discriminatory, arbitrary and
capricious."

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

STATE OF TENNESSEE v. DAVID LEE BELLAMY
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Julie A. Rice, Knoxville, Tennessee, for the appellant, David Lee
Bellamy

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; Greeley Wells, District Attorney General;
and Rebecca Davenport, Assistant District Attorney General,  for the
appellant, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, David Lee Bellamy, plead guilty to violation of an
habitual traffic offender order, two counts of reckless aggravated
assault, four counts of reckless endangerment, driving under the
influence, driving under the influence, fourth offense, improper
passing, and driving left of center, with the sentence to be
determined by the trial court.  After a sentencing hearing, the trial
court sentenced the appellant to an effective sentence of twelve
years.  Unsatisfied with the denial of alternative sentencing, the
appellant now appeals.  We affirm the judgment of the trial court.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/bellamydavidl_con.wpd

Legal Relationship Between Tennessee Commission of Indian Affairs and
Tennessee Native American Convention and Advisory Council of the
Tennessee Indian Affairs

Date: August 24, 2004

Opinion Number: 04-138                         

http://www.tba.org/tba_files/AG/2004/op138.pdf

Judicial Residence

Date: August 24, 2004

Opinion Number: 04-139          

http://www.tba.org/tba_files/AG/2004/op139.pdf

Sales Tax Exemption for Energy Fuels Sold Directly to Consumer for
Residential Use

Date: August 26, 2004

Opinion Number: 04-140                         

http://www.tba.org/tba_files/AG/2004/op140.pdf

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