The ADA Act: The First 15 Years
May 19 - Tennessee Bar Center, Nashville

On July 26, 2005, we will celebrate the 15th Anniversary of the
signing of the Americans with Disabilities Act. This session will
cover the 1-2-3’s of the ADA as we look back on where we have come
from and envision where we are headed. The Course Offerings will
include substantive sessions in:
•Title I (Litigating Employment Discrimination cases in Tennessee)
•Title II (Panel discussion of Lane v.Tennessee from the front line
attorneys)
•Title III (Recent developments in Public Accommodation Accessibility
litigation from national experts, Fox & Robertson, P.C.)

This CLE is designed to be valuable to beginners and seasoned
practitioners alike, and will be followed by a reception for all
participants to meet the faculty and network.

Today's Opinions: May 4, 2005
Volume 11 — Number 084
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 New Opinion(s) from the Tennessee Supreme Court
01 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
03 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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


CHARLENE BENNETT v. MAGNA SEATING SYSTEMS, ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Mitchell G. Tollison, Jackson, Tennessee, for the Appellant, Charlene
Bennett.

P. Allen Phillips, Jackson, Tennessee, and Michael J. Cash, Lexington,
Tennessee, for the Appellees, Magna Seating Systems d/b/a Milan
Seating Systems (USA) and Continental Casualty Company.

Judge: BRASSFIELD

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with. Tennessee Code Annotated section 50-6-225(e)(3) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law. In this appeal, the Employee, Charlene Bennett, insists that the
trial court erred in dismissing her complaint, finding that she had
failed to prove that her injuries arose out of and in the course of
her employment. For the reasons set out below, the Panel has concluded
that the evidence fails to preponderate against the findings of the
trial court. Judgment of the trial court is affirmed with costs
assessed against the employee.

http://www.tba.org/tba_files/TSC_WCP/2005/bennettc50405.pdf

J. STEPHEN AMISON, ET AL. v. JACK D. McCARTY, ET AL.

Court:TCA

Attorneys:                          

John C. Cavett, Jr., Chattanooga, Tennessee, for the appellants, Jack
D. McCarty and wife, Bertha B. McCarty.

J. Michael Sharp and D. Mitchell Bryant, Cleveland, Tennessee, for the
appellees, J. Stephen Amison and wife, Pamela G. Amison.

Judge: SUSANO

First Paragraph:

J. Stephen Amison and wife, Pamela G. Amison ("the plaintiffs"),
purchased a house from Jack D. McCarty and wife, Bertha B. McCarty
("the defendants"). Thereafter, the plaintiffs sued the defendants for
damages and, in the alternative, for rescission of the contract of
purchase. The plaintiffs alleged that, unbeknownst to them when the
contract was signed and when the sale subsequently was closed, the
house was infested with termites; that the defendants had prior
knowledge of the termite infestation; and that the defendants
intentionally or negligently misrepresented the true condition of the
house. Following a bench trial, the court decreed rescission, awarded
the plaintiffs discretionary costs, and denied the plaintiffs' request
for their attorney's fees. Both sides raise issues on appeal. We
affirm.

http://www.tba.org/tba_files/TCA/2005/amisonj50405.pdf

PATSY HILL OAKLEY v. JAMES SPENCER OAKLEY

Court:TCA

Attorneys:                          

David E. Caywood, Memphis, TN, for appellant James Spencer Oakley
James O. Parker

Sam Blaiss, Memphis, TN, for appellee Patsy Hill Oakley

Judge: KIRBY

First Paragraph:

This is a divorce case about division of marital assets, on appeal for
the second time. Initially, the trial court divided the marital assets
by granting each party approximately half. The husband appealed,
arguing, inter alia, that the wife should not receive a share of his
separately owned business or a share of the appreciation in value of
his separately owned securities. This Court held that the wife was not
entitled to a share of the appreciation in value of the husband's
separately owned securities. As to the business, this Court held that
the wife was entitled only to a share of any appreciation in its
value, and remanded to the lower court for a determination of the
amount of any such appreciation in the value of the business. On
remand, the trial court eliminated the wife's award of a share of the
increase in value of the securities, as ordered by this Court, and
found that there was no evidence of any increase in the value of the
business. No other changes were made to the division of marital
property, with the result being that the wife's award, while smaller
in value, was proportionally larger than the husband's award. The
husband appealed a second time, arguing that this new division was
inequitable. We affirm.

http://www.tba.org/tba_files/TCA/2005/oakleyp50405.pdf

VANESSA SIRCY v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON
COUNTY, TENNESSEE

Court:TCA

Attorneys:                          

J. Brooks Fox and John Kennedy, Nashville, Tennessee, for the
Appellant, Metropolitan Government of Nashville and Davidson County,
Tennessee.

Shelley I. Stiles and John A. Barney, Brentwood, Tennessee, for the
Appellee, Vanessa Sircy

Judge: FARMER

First Paragraph:

This is a breach of contract action involving employment with a
government municipality. In this case, the defendant municipality
offered the plaintiff a job as a dispatcher at an annual salary of
approximately$30,000, and the plaintiff accepted the position.
Meanwhile,the defendant underwent job reclassifications and salary
restructuring. On the second day of the plaintiff's employment with
the defendant, she was informed that she would be paid an annual
salary of approximately $24,000. After working for approximately five
and one-half months for the defendant, the plaintiff resigned, citing
the uncertainty regarding whether the defendant wouldadjust her
salary, as they had suggested. Following her resignation, the
plaintiff brought this action. Following a bench trial, the trial
court determined that the defendant had made promises of employment at
a certain salary that induced the plaintiff to resign her position at
her former employment, and the defendant had breached those promises.
As a result, the trial court found that the plaintiff had suffered
damages in the amount of $16,500. The defendant has appealed the
judgment of the trial court. Because we conclude that the trial court
erroneously calculated damages, we modify the judgment of the trial
court.

http://www.tba.org/tba_files/TCA/2005/sircyv50405.pdf

DOROTHY TUCKER v. SIERRA BUILDERS, et al.
CORRECTED OPINION

Court:TCA

Judge: FRANKS

First Paragraph:

The majority's analysis of the Consumer Protection Act is just
excellent, however, I respectfully disagree with the majority's
opinion that All American did not violate the Act in its
representations made to this plaintiff. I agree with the majority's
detailed history of the TCPA and that it is much broader in scope than
common-law fraud, that it must be construed liberally to protect
consumers, and that the plaintiff must prove an "unfair" or
"deceptive" act by the defendant. I also agree that "the essence of
deception is misleading consumers by a merchant's statements, silence,
or actions." I disagree with the majority's conclusion, however, that
All American did not act deceptively in its dealings with Ms. Tucker,
and I believe that the majority opinion overlooks certain key facts in
this regard. The majority neither accords the Trial Court the
presumption of correctness in its fact finding as required by Rule
13(d), nor does it defer to the Trial Court on the issue of the
credibility of the witnesses.

CORRECTED OPINION
http://www.tba.org/tba_files/TCA/2005/tuckerd_dis50205.pdf

TENNESSEE DIVISION OF THE UNITED DAUGHTERS OF THE CONFEDERACY v.
VANDERBILT UNIVERSITY
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

Douglas E. Jones and Robert J. Notestine, III, Nashville, Tennessee,
for the appellant, the Tennessee Division of the United Daughters of
the Confederacy.

William N. Ozier and Leona Marx, Nashville, Tennessee, for the
appellee, Vanderbilt University.

Judge: KOCH

First Paragraph:

This appeal involves a dispute stemming from a private university's
decision to change the name of one of its dormitories. An organization
that donated part of the funds used to construct the dormitory filed
suit in the Chancery Court for Davidson County asserting that the
university's decision to rename the dormitory breached its
seventy-year-old agreement with the university and requesting
declaratory and injunctive relief and damages. Both the university and
the donor filed motions for summary judgment. The trial court,
granting the university's motion, determined that the university
should be permitted to modify the parties' agreement regarding the
dormitory's name because it would be "impractical and unduly
burdensome" to require the university to continue to honor the
agreement. The donor organization appealed. Wehave determined that the
summaryjudgment must be reversed because the university has failed to
demonstrate that it is entitled to a judgment as a matter of law.
Furthermore, based on the essentially undisputed facts, we have
determined that the donor is entitled to a partial summary judgment
because the university has breached the conditions placed on the
donor's gift and, therefore, that the university should be required to
return the present value of the gift to the donor if it insists on
renaming the dormitory.

http://www.tba.org/tba_files/TCA/2005/udc50405.pdf

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/2005/udc_con50405.pdf

STATE OF TENNESSEE v. ROSE MARY ADAMS

Court:TCCA

Attorneys:                          

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Rose
Mary Adams.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General; and Kevin McAlpin, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

After the trial court denied her motion to suppress, the defendant,
Rose Mary Adams, entered a best interest guilty plea to possession
with intent to deliver a Schedule II controlled substance,
methamphetamine, a Class C felony, and to possession of drug
paraphernalia, a Class A misdemeanor. After conducting a sentencing
hearing, the trial court sentenced the defendant to four years in the
Community Correction program after four months of service in the
county jail and fined the defendant $2,000 for the possession with
intent to sell conviction. For the possession of drug paraphernalia
conviction, the defendant received a concurrent sentence of eleven
months and twentynine days with all but four months suspended. The
defendant now appeals a certified question of law challenging the
trial court's denial of her motion to suppress the evidence. We affirm
the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/adamsr50405.pdf

BRAD EVERETT JONES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Rebecca S. Mills, Ripley, Tennessee, for the appellant, Brad Everett
Jones.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Tracey A. Brewer, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner appeals the denial of his petition for post-conviction
relief from his convictions for felony evading arrest, possession of a
Schedule VI controlled substance, and driving on a revoked license,
arguing that the post-conviction court erred in finding that his
guilty pleas were knowing and voluntary and that he received the
effective assistance of trial counsel. Following our review, we affirm
the denial of the petition.

http://www.tba.org/tba_files/TCCA/2005/jonesb50405.pdf

STATE OF TENNESSEE v. WILLIAM HENRY WILSON

Court:TCCA

Attorneys:                          

Julie A. Rice, Knoxville, Tennessee (on appeal) and Mack Garner,
Maryville, Tennessee (at trial) for the appellant, William Henry
Wilson.

Paul G. Summers, Attorney General and Reporter; David E. Coenen,
Assistant Attorney General; Michael L. Flynn, District Attorney
General; Michael A. Gallegos, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, William Henry Wilson, pled guilty to one count of
delivery of .5 grams or more of a schedule II controlled substance,
and to one count of delivery of less than .5 grams of a schedule II
controlled substance. The trial court sentenced the Defendant to an
effective sentence of ten years, and the Defendant appeals, contending
that his sentence is excessive. Finding no reversible error, we affirm
the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/wilsonw50405.pdf

Tennessee Commission on Indian Affairs Tribal Recognition Criteria

Date: May 2, 2005

Opinion Number: 05-066

http://www.tba.org/tba_files/AG/2005/op66.pdf

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi

TBALink HomeContact UsPageFinderWhat's NewHelp

© Copyright 2005 Tennessee Bar Association