January 25, 2000
Volume 6 -- Number 011

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):
00 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
05 New Opinion(s) from the Tennessee Court of Appeals
02 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

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Lucian T. Pera
Editor-in-Chief, TBALink






For Appellant                  For Appellee

Cheek & Wheeler, PLC           Anderson, Fugate, Givens & Belisle
Johnson City, Tennessee        Johnson City, Tennessee  


First Paragraph:

This declaratory judgment action was filed by Vermont Mutual Insurance
Company ("Vermont Mutual") against its insured, the defendant Marta
Chiu ("Chiu").  It was prompted by Chiu's filing of a claim following
a fire loss at her house.  A jury found that Chiu had made material
misrepresentations in her application for a homeowner's insurance
policy; however, the jury found that these misrepresentations were not
made with an intent to deceive.  The trial court then found that there
was insufficient evidence that Chiu's misrepresentations had increased
Vermont Mutual's risk of loss pursuant to T.C.A. S 56-7-103;
accordingly, the trial court found that Chiu's loss was covered under
the policy.  Vermont Mutual appeals, contending that the trial court
erred in finding that there was not an increase in the risk of loss as
a consequence of Chiu's misrepresentations.  We reverse.


KELLY RENEE TROUT CONNELL VS. BRIAN SUTHERLAND CONNELL Court:TCA Attorneys: For Appellant For Appellee WILLIAM H. HORTON SELMA CASH PATY Horton, Maddox Chattanooga, Tennessee & Anderson, PLLC Chattanooga, Tennessee Judge: SUSANO First Paragraph: This is a post-divorce proceeding that addresses the custody of Chase Sutherland Connell ("Chase") (DOB: July 11, 1990) and Dalis Paige Connell ("Dalis") (DOB: May 16, 1992). The custodial parent, Kelly Renee Trout Connell ("Mother"), filed a motion seeking the trial court's permission to move to California with the children. Their father, Brian Sutherland Connell ("Father"), resisted Mother's motion and also filed a petition seeking a change of custody. The trial court granted Mother's request and, following a later hearing, denied Father's petition, finding that Father had failed to prove a change of circumstances warranting a change of custody. Father appeals from both orders, arguing that the trial court erred (1) in permitting Mother to move with the children; and (2) in finding that he had failed to prove a change of circumstances such as to require a change in custody. We affirm. http://www.tba.org/tba_files/TCA/Connellkrt.wpd
DON L. CULBREATH VS. FIRST TENNESSEE BANK NATIONAL ASSOCIATION Court:TCA Attorneys: Leo Bearman, Jr., John C. Speer, Michael C. Patton, BAKER, DONELSON, BEARMAN & CALDWELL, P.C., Memphis, Tennessee Attorneys for Defendant/Counter-Plaintiff/Appellant Seymour Rosenberg, LAW OFFICES OF SEYMOUR S. ROSENBERG, Memphis, Tennessee R. Sadler Bailey, Andrew M. Clarke, C. Philip M. Campbell, BAILEY & CLARKE, Memphis, Tennessee Attorneys for Plaintiff/Counter-Defendant/Appellee Judge: FARMER First Paragraph: This cause of action stems from the events leading to the execution of a $150,000 loan and the assignment of a deed of trust to secure the loan. In the bifurcated trial below, the trial court entered judgment against the defendant for $209,156 in compensatory damages and $9 million in punitive damages. We affirm the award of compensatory damages and reverse the award of punitive damages. http://www.tba.org/tba_files/TCA/Culbreathdl.wpd
DAVID W. KENT VS. EDWARDS & ASSOCIATES, INC., AERONAUTICAL ACCESSORIES, INC., AERONAUTICAL PLASTICS, INC., AERONAUTICAL ROTOR BLADES, INC., GLORIA M. WOLFE, EXECUTRIX OF THE ESTATE OF JAMES A. WOLFE, and ROBERT B. McNAB Court:TCA Attorneys: For the Appellant: For the Appellees: Cecil W. Laws, Kingsport Robert D. Van de Vuurst, Johnson City Franklin L. Slaughter, Bristol Alice K. Corker, Johnson City Carl McAfee, Norton, Virginia Judge: SWINEY First Paragraph: This is an appeal by David W. Kent ("Plaintiff") under T.R.A.P. Rule 9 alleging error in the Trial Court's ruling on a Motion for Summary Judgment filed by Defendants/Appellees, related corporations and two individuals who were the shareholders, directors and officers of the companies. Plaintiff was an employee of one or more of the Defendant companies, and filed suit after his employment was terminated for outrageous conduct, interference with employment contract, conspiracy to interfere with employment contract, retaliatory discharge, and conspiracy relating to retaliatory discharge. http://www.tba.org/tba_files/TCA/Kent.wpd
MARSHA McDONALD VS. SAMUEL CLINTON COWAN Court:TCA Attorneys: STEPHEN R. LEFFLER Memphis, Tennessee Attorney for Appellant STEVAN L. BLACK VICKIE HARDY JONES Memphis, Tennessee Attorneys for Appellee Judge: HIGHERS First Paragraph: Samuel Cowan appeals from two orders of the Circuit Court of Shelby County which set the amount of child support arrearages owed by Mr. Cowan. For the reasons stated herein, we vacate the judgment of the trial court and remand the case for further proceedings. http://www.tba.org/tba_files/TCA/McDonaldmar.wpd
STATE OF TENNESSEE VS. JOHN MICHAEL BANE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOSEPH S. OZMENT PAUL G. SUMMERS 369 Main Street Attorney General and Reporter Memphis, TN 38103 AMY L. TARKINGTON Charles S. Kelly Assistant Attorney General 802 Troy Avenue 425 Fifth Avenue North Dyersburg, TN 38025 Nashville, TN 37243 WILLIAM L. GIBBONS District Attorney General THOMAS D. HENDERSON KEVIN R. RARDIN Assistant District Attorneys General Criminal Justice Complex, Suite 301 201 Poplar Avenue Memphis, TN 38103 Judge: WELLES First Paragraph: This is an appeal from a new sentencing hearing ordered by the Tennessee Supreme Court. The appellant was originally convicted of murder during the perpetration of a robbery. The jury sentenced the appellant to death, finding that the murder was especially heinous, atrocious or cruel and that the murder was committed during the perpetration of a felony. http://www.tba.org/tba_files/TCCA/banejm.wpd
WALTER BLAIR VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: PAMELA J. DREWERY PAUL G. SUMMERS 102 E. Baltimore, Ste 121 Attorney General & Reporter Jackson, TN 38301 R. STEPHEN JOBE Asst. Attorney General 425 Fifth Ave. North Nashville, TN 37243-0493 CLAYBURN L. PEEPLES District Attorney General LARRY HARDISTER Asst. District Attorney General 110 College St., Suite 200 Trenton, TN 38382 Judge: PEAY First Paragraph: The petitioner, Walter Blair, pled guilty to second-degree murder. As part of the plea agreement, he was sentenced as a Range III persistent offender to forty-five years; absent the plea agreement, petitioner would have been classified as a Range I offender. Petitioner filed for post-conviction relief, which was denied after a hearing. http://www.tba.org/tba_files/TCCA/BLAIRW.wpd

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