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Today's Opinions: May 31, 2005
Volume 11 — Number 102
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
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
05 New Opinion(s) from the Tennessee Court of Appeals
02 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


State of Tennessee Justice Information Tracking System State List for
Permission to Appeal

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/2005/certlist053105.pdf

CHRISTY MICHELLE BERRY v. LESTER STEPHEN BERRY
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

Morna Kathleen Reynolds McHargue, Knoxville, Tennessee, for the
Appellant, Christy Michelle Berry.

John Thomas Jones and Elizabeth K. B. Meadows, Knoxville, Tennessee,
for the Appellee, Lester Stephen Berry.

Judge: LEE

First Paragraph:

This is a post divorce child custody case. The trial court changed
custody to the father based upon the mother's homosexuality and the
effect it would have on the child as he grew older. We hold that the
evidence preponderates against the trial court's finding that there
had been a material change in circumstances to justify a change of
custody in the absence of proof that the mother's sexual orientation
had affected or would affect the child's well-being in any meaningful
way. Accordingly, the trial court's decision is reversed.

http://www.tba.org/tba_files/TCA/2005/berryc53105.pdf

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/2005/berryc_con53105.pdf

IN RE: THE ESTATE OF JOSEPH OWEN BOOTE, JR., DECEDENT, ET AL. v. HELEN
BOOTE SHIVERS, ET AL.

Court:TCA

Attorneys:                          

Andree Sophia Blumstein and WilliamL.Harbison of Nashville for
Appellants, Helen Boote Shivers and Linda Boote

T. Richard Travis of Nashville for Appellee, The Estate of Joseph Owen
Boote, Jr., Martha M. Boote, Personal Representative

Judge: CRAWFORD

First Paragraph:

Appellants are residuary beneficiaries of their father's estate. They
challenge the estate's payment of attorney fees and expenses incurred
by executrix (the widow of testator and stepmother of Appellants) in
unsuccessfully defending against her removal as executrix. Appellants
contend that because litigation concerning the removal of their
stepmother as executrix was solely for the personal benefit of the
executrix and was necessitated by her neglect in administering the
estate, the trial court erred as a matter of law in ordering the
attorney fees and expenses incurred in defending against the removal
petition be paid out of the estate. Appellee, the former executrix,
contends that the trial court did not err in exercising its discretion
in ordering legal fees to be paid out of estate. Finding that the
trial court erred in ordering the expenses paid out of the estate, we
reverse and remand.

http://www.tba.org/tba_files/TCA/2005/bootej53105.pdf

GARY FLANARY, ET AL. v. CARL GREGORY DODGE OF JOHNSON CITY, LLC
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

Gordon Ball, Knoxville, Tennessee, for the appellant, Gary Flanary, on
behalf of himself and all others similarly situated.

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellee, Carl
Gregory Dodge of Johnson City, LLC.

Judge: SUSANO

First Paragraph:

Gary Flanary filed suit against Carl Gregory Dodge of Johnson City,
LLC ("the dealership") and alleged that the dealership, without
negotiation and without his knowledge or consent, had charged him with
an "administrative fee" in connection with his purchase of a vehicle.
Flanary claimed that this practice violated, inter alia, the Tennessee
Consumer Protection Act ("the TCPA"). He sought class action
certification. The dealership filed a motion for summary judgment,
relying upon the arbitration agreement ("the Agreement") signed by
Flanary at the time he purchased the vehicle. It contended that
Flanary was bound to arbitrate any claims he had against the
dealership. The trial court stated that it personally did not believe
an agreement to arbitrate under the circumstances of this case was
fair; but, nevertheless, it opined that it felt compelled by the
current state of the law to hold that arbitration was mandated by the
terms of the Agreement. Flanary appeals the trial court's order
requiring him to submit to arbitration. We affirm the judgment below
to the extent the trial court, albeit reluctantly, held that the
Agreement, on its face, is enforceable. However, based upon our
determination that the Agreement was never accepted by the dealership,
we vacate so much of the trial court's judgment as holds that the
parties entered into a contract to arbitrate. Accordingly, we remand
for further proceedings on Flanary's complaint.

http://www.tba.org/tba_files/TCA/2005/flanaryg53105.pdf

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/2005/flanaryg_con53105.pdf

KEITH EDWARD GARRETT, v. PRISCILLA LOUISE GARRETT, et al., ESTATE OF
LUTHER GASTON GARRETT

Court:TCA

Attorneys:                          

Thomas Harding Potter, Nashville, Tennessee, for Appellant. 

James P. Romer, Jamestown, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

In this second appeal of this case, the Trial Court had ruled that
appellee was entitled to a dwelling house and all improvements on land
owned by the Deceased. Appellant appeals this and numerous issues. We
affirm.

http://www.tba.org/tba_files/TCA/2005/garrettk53105.pdf

JOSEPH PARKER, JR., v. JOSEPH PARKER, SR.

Court:TCA

Attorneys:                          

Patrick T. Phillips, Knoxville, Tennessee, for appellant. 

Monica J. Franklin, Knoxville, Tennessee, for appellee.

Judge: FRANKS

First Paragraph:

Appellant, who successfully fended off appellee's Petition to Appoint
conservation for appellant, asked for attorney's fees from appellee
pursuant to Tenn. Code Ann. S 34-1-114, which the Trial Court denied.
We affirm.

http://www.tba.org/tba_files/TCA/2005/parkerj53105.pdf

THOMAS EUGENE GRAHAM v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Thomas Eugene Graham, Tiptonville, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The pro se petitioner, Thomas Eugene Graham, appeals from the trial
court's order denying the petitioner's motion to reopen his
post-conviction petition. The states moves the court to affirm the
judgment of the trial court pursuant to Rule 20 of this court's rules.
The motion was properly denied for lack of merit. Accordingly, the
state's motion is granted and the judgment of the trial court is
affirmed.

http://www.tba.org/tba_files/TCCA/2005/grahamt53105.pdf

STATE OF TENNESSEE v. TERRY EDWARD JONES

Court:TCCA

Attorneys:                          

Richard A. Spivey, Kingsport, Tennessee, for the Appellant, Terry
Edward Jones.

Paul G. Summers, Attorney General & Reporter; William G. Lamberth, II,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and J. Lewis Combs, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Terry Edward Jones pleaded guilty to solicitation of first degree
murder, for which he received an eight-year incarcerative sentence.
Aggrieved of the trial court's failure to grant his request for
alternative sentencing, he brings the instant appeal challenging his
manner of service. After a thorough review of the record and
applicable law, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/jonest53105.pdf

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