September 20, 1999 Volume 5 -- Number 126 What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink from Tennessee's three appellate courts. This Issue (IN THIS ORDER):   02 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 07 New Opinion(s) from the Tennessee Court of Appeals 01 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 New Judicial Ethics Opinion(s) 00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: 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. *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WordPerfect 6.0 version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original WordPerfect 6.0 document. Lucian T. Pera Editor-in-Chief, TBALink STATE OF TENNESSEE VS. MARVIN K. FERGUSON Court:TSC Attorneys: For Appellant: For Appellee: DENNIS L. TOMLIN JOHN KNOX WALKUP Hendersonville, TN Attorney General and Reporter MICHAEL E. MOORE Solicitor General MICHAEL W. CATALANO Assistant Attorney General Nashville, TN JOE C. CRUMLEY, JR. District Attorney General Johnson City, TN Judge:BIRCH First Paragraph: The question presented for our determination is: What are the factors which should guide the determination of the consequences that flow from the State's loss or destruction of evidence which the accused contends would be exculpatory? The State urges that we adopt the bad faith analysis announced in Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). Two reasons prompt us to reject this analysis: (1) we find, under the circumstances, that the due process principles of the Tennessee Constitution are broader than those enunciated in the United States Constitution; and (2) fundamental fairness, as an element of due process, requires that the State's failure to preserve evidence that could be favorable to the defendant be evaluated in the context of the entire record. http://www.tba.org/tba_files/TSC/FERGUSOM_OPN.WP6 SONNY LUTHER JOHNSON VS. TRANSPORTATION UNLIMITED, INC. Court:TSC Judgment Order First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court. Costs will be paid one-half to each party, for which execution may issue if necessary. IT IS SO ORDERED on September 20, 1999. http://www.tba.org/tba_files/TSC/johns_jo.wpd.WP6 TIMOTHY W. BURROW VS. RUSSELL E. BARR, Individually and d/b/a MAIN STREET MOTORS Court:TCA Attorneys: G. KLINE PRESTON, IV Nashville, Tennessee Attorney for Appellant ROLLIE L. WOODALL Nashville, Tennessee Attorney for Appellee Judge:HIGHERS First Paragraph: This lawsuit arises from Timothy Burrow's purchase of a used car from Russell Barr (d/b/a Main Street Motors), where, unbeknownst to Burrow, significant mechanical problems that greatly affected the car's value existed at the time of sale. In this appeal, Timothy Burrow appeals the trial court's sua sponte involuntary dismissal of his claims at trial, which occurred before Burrow was afforded the opportunity to fully present the facts and his evidence. Based upon the following, we reverse and vacate the trial court's dismissal, and remand this case to the trial court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/Burrowti_opn.WP6 AMANDA LINN CASHION VS. STATE OF TENNESSEE Court:TCA Attorneys: Amanda Linn Cashion, Memphis, pro se for Appellant. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Martha A. Tarleton, Senior Counsel, Nashville, for Appellee. Judge:INMAN First Paragraph: This claim against the State for damages for alleged libel was filed with the Division of Claims Administration on October 7, 1998, and subsequently transferred to the Claims Commission, whose decision was upheld by the Chancery Court. The claimant, a former probationary staff attorney for the Department of Mental Health and Mental Retardation, alleges that she was libeled by an opinion of the Court of Appeals styled Cashion v. Robertson, and reported in 955 S.W.2d 60 (Tenn. Ct. App. 1997), which reviewed and affirmed the judgment of the Chancery Court. http://www.tba.org/tba_files/TCA/CASHION_CA1.WP6 ROBERT C. JONES VS. RANDY LEE PEARL Court:TCA Attorneys: For the Appellant: For the Appellee: KEITH S. SMARTT BYRAN ESSARY McMinnville, Tennessee Nashville, Tennessee EDWARD A. HADLEY Nashville, Tennessee Judge:SWINEY First Paragraph: This litigation arises out of a motor vehicular accident in Warren County, Tennessee. Plaintiff-Appellant, Robert C. Jones ("Plaintiff"), was driving a pick up truck with an attached trailer, and the Defendant-Appellee, Randy L. Pearl ("Defendant"), was operating a tractor trailer when the trucks collided. The jury returned a verdict apportioning one hundred percent of the neligence to Plaintiff. Plaintiff's motion for a new trial was denied by the Trial Court. The issues to be addressed in this Opinion are: (1) whether the Trial Judge applied the correct standard of review in his role as the thirteenth juror in denying the Plaintiff's motion for new trial, and (2) if the answer to issue number one is yes, is the jury's verdict supported by material evidence? For the reasons herein stated, we affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/JONESRC_OPN.WP6 ED REEVES, d/b/a ED'S IMPORTS VS. GRANITE STATE INSURANCE CO. Court:TCA Attorneys: ERNEST D. BENNETT, III TAYLOR, PHILBIN, PIGUE, MARCHETTI & BENNETT, PLLC 2908 Poston Avenue Nashville, Tennessee 37203 Attorney for the Defendant/Appellant ROBERT S. PETERS 100 First Avenue S.W. Winchester, Tennessee 37398 Attorney for Plaintiff/Appellee Judge:COTTRELL First Paragraph: This is an action to recover upon an insurance policy insuring an automobile against loss. The named insured, Mr. Nance, the owner of the automobile, is not a party to the action. Instead, the suit was brought by Ed Reeves, doing business as Ed's Imports, in his capacity as the loss payee named in the insurance policy. This appeal involves the rights of the loss payee under the loss payable provision of the insurance contract where, after the loss, the insurance company canceled the policy retroactively due to a discovered misrepresentation in the application by the insured. The trial court ruled in favor of the appellee, Ed's Imports. We affirm. http://www.tba.org/tba_files/TCA/Reeves_Opn.wpd.WP6 Dissenting Opinion: http://www.tba.org/tba_files/TCA/Reeves v_ Granite.dis.WP6 CAROLYN REQUE and PAUL REQUE VS. MONTEAGLE TRUCK PLAZA, INC., JIMMY STILES, AND NETWORK HEALTH PLAN Court:TCA Attorneys: For the Appellants: For the Appellees: ANDREW L. BERKE RANDOLPH A. VEAZEY Berke, Berke & Berke JAMES R. TOMKINS Chattanooga, Tennessee Glasgow & Veazey Nashville, Tennessee Judge:SWINEY First Paragraph: This is an appeal from the final judgment of the Circuit Court of Franklin County, Chancellor Jeffrey F. Stewart sitting by interchange, granting defendants'/appellees' motion to dismiss for failure of the plaintiffs/appellants to timely file their tort claims within the one-year statute of limitations, Tenn. Code Ann. S 28-3-104. The Trial Court rejected plaintiffs' argument that Tenn. Code Ann. S 28-1-105, one of the Tennessee "saving statutes," preserved their cause of action first filed in a Wisconsin state court, dismissed by the Wisconsin state court for lack of jurisdiction over the defendants after the Tennessee statute of limitations had expired, and then filed in Tennessee. The issue raised by plaintiffs is whether Tenn. Code Ann. S 28-1-105 operates to save a cause of action first brought in a foreign state court, dismissed for lack of jurisdiction, and subsequently filed in a Tennessee court within one year of the dismissal, but outside the one-year statute of limitations of Tenn. Code Ann. S 28-3-104. For the reasons herein stated, we affirm the Trial Court's dismissal of the plaintiffs' complaint. http://www.tba.org/tba_files/TCA/REQUE_OPN.WP6 BRUCE WALKER and VICTORIA WALKER VS. ARROW EXTERMINATORS, INC. and DOUG SNYDER, Individually Court:TCA Attorneys: For the Plaintiffs/Appellants: For the Defendants/Appellees: James L. Harris D. Brett Burrow Nashville, Tennessee Sharon E. England Nashville, Tennessee Judge:LILLARD First Paragraph: This case involves alleged negligence in the termite inspection of a house. The trial court granted summary judgment in favor of the defendant exterminators, finding insufficient evidence of termite infestation at the time of inspection. We affirm. http://www.tba.org/tba_files/TCA/Walkerbv_opn.WP6 STATE OF TENNESSEE VS. FRANK KENNETH TALLEY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: SCOTT DANIEL JOHN KNOX WALKUP 401 W. Main St. Attorney General and Reporter Murfreesboro, TN 37133-0960 KAREN M. YACUZZO Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 BILL WHITESELL District Attorney General PAUL A. HOLCOMBE, III Assistant District Attorney Rutherford County Judicial Bldg. Murfreesboro, TN 37130 Judge:SMITH First Paragraph: The appellant, Frank Kenneth Talley, Jr., was convicted by a Rutherford County jury of three (3) counts of rape, a Class B felony. The trial court sentenced Appellant as a Range II Multiple Offender to concurrent sentences of thirteen (13) years for each offense. http://www.tba.org/tba_files/TCCA/TALLEYFR_wpd.WP6 PLEASE FORWARD THIS EMAIL! 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 TBALink! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/ 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! 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