LawTech 2005
April 14 - Tennessee Bar Center, Nashville

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Today's Opinions: March 29, 2005
Volume 11 — Number 058
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.
01 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
09 New Opinion(s) from the Tennessee Court of Appeals
00 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

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


SHERRY HUNTER, ADMINISTRATRIX OF THE ESTATE OF LAWRENCE HUNTER,
DECEASED v. JAY MICHAEL URA, M.D., ET AL.
WITH DISSENTING OPINION

Court:TSC

Attorneys:                          

Gary K. Smith and C. Phillip M. Campbell, Memphis, Tennessee, for the
Appellant, Sherry Hunter.

E. Reynolds Davies, Jr., Ed R. Davies, and Daniel D. Warlick,
Nashville, Tennessee, for the Appellees, Jay Michael Ura, M.D., and
Nashville Anesthesia Services.

Judge: ANDERSON

First Paragraph:

We granted this appeal to determine whether the trial court committed
reversible error in granting the plaintiff eight peremptory challenges
during jury selection, whether the trial court properly denied a
motion for a mistrial after the plaintiff cross-examined a defense
expert witness with a prior statement, whether the trial court
properly allowed the plaintiff to cross-examine a defense expert with
an alleged learned treatise, and whether the trial court properly
excluded the deposition of a defense expert witness.  The Court of
Appeals held that the trial court committed reversible error on these
four issues, reversed the jury's verdict in favor of the plaintiff,
and remanded for a new trial.  The intermediate court chose not to
review numerous remaining issues raised by the parties.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TSC/huntersherry_dis.wpd

NANCY CAROL CANTRELL v. JAMES MARK CANTRELL

Court:TCA

Attorneys:                          

Thomas F. Bloom, Nashville, Tennessee, and Virginia Lee Story,
Franklin, Tennessee, for the appellant, Nancy Carol Cantrell.

J. Timothy Street and William Donnell Young, Jr., Franklin, Tennessee,
for the appellee, James Mark Cantrell.

Judge: CLEMENT

First Paragraph:

This is a divorce proceeding in which the parties accused each other
of inappropriate marital conduct.  The trial court granted both
parties a divorce, and custody of the parties' child was awarded to
Husband along with child support.  Marital property, mostly debts, was
allocated in part to Husband and in part to Wife.  The trial court
declined to assess attorney fees.  Wife appealed claiming that she
should have been granted the divorce and custody of the child.  Wife
also claimed that the marital debts were not allocated equitably and
that she should have been awarded her attorney fees.  We modify in
part and affirm.

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

DON SMITH FORD, LINCOLN-MERCURY, INC. v. DOUG BOLINGER, ET AL.

Court:TCA

Attorneys:                          

Mark D. Edmonds, Jonesborough, Tennessee, for the appellant, Doug
Bolinger.

E. Ronald Chesnut, Greeneville, Tennessee, for the appellee, Don Smith
Ford, Lincoln-Mercury, Inc.

Thomas L. Kilday and Deborah F. Roberts, Greeneville, Tennessee, for
the appellee, Gary Hoese, dba Gary's Used Cars.

Jerry W. Laughlin, Greeneville, Tennessee, for the appellee, East Gate
Motors, Inc.

Judge: SUSANO

First Paragraph:

Don Smith Ford, Lincoln-Mercury, Inc. sued Doug Bolinger based upon
theories of negligent misrepresentation, breach of contract and
violations of the Tennessee Consumer Protection Act ("the TCPA").  The
plaintiff averred that the defendant failed to disclose substantial
body damage to his vehicle, which vehicle the defendant traded to the
plaintiff in connection with his purchase from the plaintiff of a new
Ford Explorer.  The defendant denied the plaintiff's allegations and
filed a third-party complaint against previous owners of the vehicle,
Gary Hoese, dba Gary's Used Cars ("Hoese") and East Gate Motors, Inc.
("East Gate").  The defendant's third-party complaint is based upon
alleged common law violations and upon the theory that Hoese and East
Gate violated the TCPA in failing to disclose the condition of the
vehicle's title.  The trial court found that the defendant was liable
to the plaintiff for negligently misrepresenting the condition of the
vehicle and awarded it damages in the amount of $17,085.  In addition,
the trial court dismissed the defendant's third-party claims against
Hoese and East Gate and, without stating the basis of its action,
awarded attorney's fees to them, as well as to the plaintiff.  The
defendant appeals, arguing, inter alia, that the trial court erred in
finding him liable for negligent misrepresentation; that the trial
court erred in failing to hold Hoese and East Gate liable to the
defendant; and that the trial court's awards of attorney's fees was
improper.  We vacate the trial court's fee awards to the plaintiff,
Hoese, and East Gate pending further proceedings in the trial court. 
The balance of the trial court's judgment is affirmed.

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

JANICE S. JOHNSON v. MARK L. JOHNSON

Court:TCA

Attorneys:                          

Grant C. Glassford, Franklin, Tennessee, for the appellant, Mark L.
Johnson.

Andrew J. Pulliam, Nashville, Tennessee, for the appellee, Janice S.
Johnson.

Judge: KOCH

First Paragraph:

This appeal involves the jurisdiction of the Circuit Court for
Davidson County over a dispute regarding custodial accounts
established for the benefit of a divorced couple's children.  The
father moved to dismiss the mother's suit on the ground that the
Circuit Court for Williamson County where the divorce had been granted
had jurisdiction over the claim.  The trial court denied the motion
but permitted the father to pursue an interlocutory appeal to this
court. The parties have now filed a stipulation for an accelerated
civil appeal in accordance with Tenn. Ct. App. R. 13.  We granted the
interlocutory appeal, and now we vacate the order denying the father's
motion to dismiss, and remand the case to the trial court with
directions to transfer the case to the Circuit Court for Williamson
County.

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

IN THE MATTER OF: L.T.P.

Court:TCA

Attorneys:                          

Lucy D. Hooper, Newport, Tennessee, for the appellant, C.P.

No appearance on behalf of the appellee, J.A.B.

Judge: SUSANO

First Paragraph:

The trial court terminated the parental rights of C.P. ("Mother") with
respect to her minor child, L.T.P. ("the child") (DOB: December 28,
2000), and granted the petition of J.A.B. ("the Petitioner") to adopt
the child.  Mother appeals, arguing, inter alia, that she was not
properly served with the petition to terminate her parental rights,
and that she was not afforded all of the rights guaranteed to her by
Tenn. Code Ann. S 36-1-113(f) (Supp. 2004).  We reverse and dismiss
the petition.

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

RICHARD E. MILLER v. BERNARD STONE, ET AL.

Court:TCA

Attorneys:                          

Michael E. Richardson, Chattanooga, Tennessee, for the appellant,
Richard E. Miller.

Donald J. Aho and Alison Bales Martin, Chattanooga, Tennessee, for the
appellee, Bernard Stone, Individually, and in his capacity as
Co-Trustee of the Estate of W. Terry Lindsay and as Co-Trustee of the
Irrevocable Trust of W.S. Lindsay.

Michael R. Campbell, Chattanooga, Tennessee, for the appellee, Greta
B. Lindsay, Individually, and in her capacity as Co-Executor of the
Estate of W. Terry Lindsay and as Co-Trustee of the Irrevocable Trust
of W.S. Lindsay.

Judge: SUSANO

First Paragraph:

Richard E. Miller, in his capacity as an officer and director of
Duncan Electric Company, Inc. ("Duncan Electric"), brought this action
against the company's other directors, Bernard Stone and Greta B.
Lindsay (collectively "the defendants"), alleging that they had
breached certain fiduciary duties owed to him.  Stone and Lindsay each
moved for summary judgment on the basis that a settlement agreement
and release entered into by the parties in a prior and separate
lawsuit barred the plaintiff's present action.  The trial court
granted the defendants' motions and ordered the plaintiff to pay their
attorney's fees.  The plaintiff appeals, arguing that the trial court
erred in granting summary judgment to the defendants.  We affirm.

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

MARSHALL TONEY NAVE, ET AL. v. PHYLLIS GRINDSTAFF NAVE

Court:TCA

Attorneys:                          

David S. Haynes, Bristol, Tennessee, for the appellant, Phyllis
Grindstaff Nave.

Arthur M. Fowler, III, Johnson City, Tennessee, for the appellee,
Marshall Toney Nave, filed on his behalf by Terri Nave King,
Conservator.

Judge: SUSANO

First Paragraph:

In this annulment action, Terri Nave King ("the Conservator") filed a
petition to annul the marriage of her ward - her father, Marshall
Toney Nave ("Husband") - to Phyllis Grindstaff Nave ("Wife"), on the
ground that Husband was mentally incapable of entering into a marriage
contract at the time of the wedding ceremony.  After a two-day trial,
the court below took the case under advisement.  Before the court
rendered its decision, Husband died.  Subsequently, the court entered
an order, finding that Husband's mental incapacity was a proper ground
for annulling his marriage to Wife; the order was entered nunc pro
tunc to the date of the final day of the trial, which had taken place
some three months prior to Husband's death.  Wife appeals, arguing,
inter alia, that the Conservator lacked the authority to file an
annulment petition on Husband's behalf; that the trial court erred in
entering its order nunc pro tunc; that the Conservator is judicially
estopped from filing an action for annulment; and that the evidence
preponderates against the trial court's finding of mental incapacity. 
We affirm.

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

JUDITH D. PICKERN v. ROBERT M. PICKERN

Court:TCA

Attorneys:                          

M. Keith Davis, Dunlap, Tennessee, for the Appellant, Robert M.
Pickern.

Elizabeth Greer Adams, Dunlap, Tennessee, for the Appellee, Judith D.
Pickern

Judge: LEE

First Paragraph:

This is an appeal from a finding of contempt following the enrollment
of a foreign decree.  The issue presented is whether Mr. Pickern could
be held in civil contempt of court for his failure to pay alimony upon
the enrollment of the foreign decree when a petition for contempt had
not been filed.  Following a hearing, the trial court enrolled the
foreign decree, found Mr. Pickern in willful contempt of court,
awarded Ms. Pickern judgment for the alimony arrearage and her
attorney's fees,  and ordered the sale of Mr. Pickern's real property
to satisfy the alimony arrearage unless he paid the judgment within
ninety days.  We hold that the trial court properly enrolled the
foreign decree, but its actions were premature regarding the civil
contempt because no petition had been filed seeking this relief.
Therefore, we affirm the enrollment of the foreign decree and the
judgment for the alimony arrearage, but vacate the finding of civil
contempt and the award of attorney's fees.

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

RANDY E. RICE, PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES NEIL
RICE v. ANDREW JOHNSON BANK, ET AL.

Court:TCA

Attorneys:                          

Bryan B. Martin and Thomas C. McKee, Johnson City, Tennessee, for the
Appellant, Randy E. Rice, as personal representative of the Estate of
James Neil Rice.

Thomas L. Kilday, Greeneville, Tennessee, for the Appellee, Andrew
Johnson Bank.

Lewis S. Howard, Jr. and Heather Gunn Anderson, Knoxville, Tennessee,
for the Appellee, Mountain Life Insurance Company.

Judge: SWINEY

First Paragraph:

James Neil Rice ("Mr. Rice") applied to Mountain Life Insurance
Company ("Mountain Life") for a credit life insurance policy to cover
the principal amount of a loan made to him by Andrew Johnson Bank
("the Bank").  When Mr. Rice died, Randy E. Rice, Personal
Representative of the Estate of James Neil Rice ("Plaintiff"), made
demand upon Mountain Life and the Bank to tender the policy proceeds
to satisfy the loan.  When Mountain Life and the Bank refused this
demand, Plaintiff filed suit.  Both  Mountain Life and the Bank filed
motions for summary judgment.  The Trial Court granted the motions for
summary judgment holding, inter alia, that no contract of insurance
existed because Mr. Rice's application never was approved or accepted
by Mountain Life and, therefore, no insurance policy was issued to Mr.
Rice.  Plaintiff appeals the grant of summary judgment.  We vacate and
remand.

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

JOHN WILLIAM THOMAS v. NORMA E. PINO-RUTKOWSKI

Court:TCA

Attorneys:                          

Broderick L. Young, Knoxville, Tennessee, for the Appellant Norma E.
Pino-Rutkowski.

Dail R. Cantrell, Clinton, Tennessee, for the Appellee John William
Thomas

Judge: SWINEY

First Paragraph:

This is an appeal from a jury verdict in favor of John William Thomas
("Plaintiff") in the amount of $190,095, of which $53,295 was for
relocation expenses and increased rent.  Plaintiff was injured when he
was struck by a vehicle driven by Norma E. Pino-Rutkowski
("Defendant") while Defendant was backing out of a parking space.  Due
to his poor eyesight, Plaintiff does not have a driver's license and
has to walk to work.  Plaintiff claimed he was required to move much
closer to work because he could no longer walk as far as he could
before being injured.  Plaintiff sought as part of his damages his
relocation expenses and the $300 in his increased monthly rent. 
Defendant claims on appeal that Plaintiff was required to specifically
plead these damages and because he failed to do so, that portion of
the jury's verdict cannot stand.  Defendant also claims the Trial
Court erred when it allowed Plaintiff's granddaughter to testify and
when it told the jury that "although the law in Tennessee may require
insurance, you are not to consider the presence of insurance in this
case."  We agree with Defendant, and we vacate the judgment in its
entirety and remand for a new trial.

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

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