May 15, 2001
Volume 7 — Number 089

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.

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 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

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Lucian T. Pera
Editor-in-Chief, TBALink



Thomas F. Bloom and Robyn Ryan, Nashville, Tennessee, for the
appellant, Clark Matthew Earls.

P. Edward Schell, Franklin, Tennessee, for the appellee, Shirley Ann


First Paragraph:

This extraordinary appeal involves the efforts of one party to
effectuate an opinion of this court which the Tennessee Supreme Court
declined to review.   On the first appeal, this court reversed
portions of the trial court's final decree and remanded the case with
specific directions regarding the details of the order to be entered.
After the Tennessee Supreme Court denied the wife's application for
permission to appeal, the husband asked the trial court to enter an
order consistent with the directions in this court's opinion.  After
conducting two hearings, the trial court declined to enter the
proposed order.  We have granted the husband's application for an
extraordinary appeal because the trial court, by its refusal to enter
a judgment consistent with this court's opinion, has so far departed
from the accepted and usual course of judicial proceedings that
immediate review of its actions is required.  We now (1) vacate the
trial court's orders filed after March 29, 2001, (2) direct the clerk
of the trial court to enter this opinion and the order accompanying it
as the final order in this proceeding, and (3) direct that this case
be assigned to another judge in the Twenty-First Judicial District for
any further proceedings.

MERRIMACK MUTUAL FIRE INSURANCE COMPANY v. GLORIA C. BATTS Court:TCA Attorneys: Raymond G. Prince, Nashville, Tennessee, for the appellant, Gloria C. Batts. Paul T. Chastain, Nashville, Tennessee, for the appellee, Merrimack Mutual Fire Insurance Company. Judge: KOCH First Paragraph: This appeal involves a dispute between a homeowner and her insurance company regarding the damages to her house caused by the tornado that struck Nashville on April 16, 1998. When they could not agree on the amount of the loss, both parties invoked the insurance policy's provision for the appointment of appraisers. After the parties' two appraisers could not agree on the amount of the loss, the two appraisers selected a third appraiser who eventually agreed with the homeowner's appraiser regarding the amount of the loss. The insurance company filed suit in the Chancery Court for Davidson County, seeking a declaratory judgment that it was required to pay the homeowner less than one-half of the amount of the loss calculated by the two appraisers. Both parties filed motions for partial summary judgment. The trial court granted the insurance company's motion, concluding that the insurance policy's appraisal clause was not an agreement for binding arbitration and that the appraisers had not been empowered to determine whether parts of the claimed damage had been caused by a peril covered by the policy. The homeowner takes issue with both of the trial court's legal conclusions on this appeal. We have determined that the trial court interpreted the insurance policy correctly and, therefore, that the trial court properly concluded that the insurance company was entitled to a judgment as a matter of law.
KATRINKA A. STALSWORTH, et al. v. ROBERT A. GRUMMON Court:TCA Attorneys: Douglas Berry and R. Stephen Doughty, Nashville, Tennessee, for the appellants, Katrinka A. Stalsworth and Jim Stalsworth. Phillip North, Tom Shumate, and Michael F. Jameson, Nashville, Tennessee, for the appellee, Robert A. Grummon. Judge: KOCH First Paragraph: This appeal involves the dismissal of a patient's medical malpractice complaint pursuant to Tenn. R. Civ. P. 41.02. After the patient voluntarily dismissed her first complaint following opening arguments, the Circuit Court for Sumner County ordered her to pay her surgeon $3,023.85 in discretionary costs. The patient did not pay the discretionary costs she had previously been ordered to pay. After the patient refiled her complaint, the trial court stayed the proceedings on the surgeon's motion and later dismissed the patient's complaint for failure to prosecute and for failure to comply with the court's order directing her to pay the surgeon's discretionary costs. On this appeal, the patient asserts that the trial court erred by dismissing her renewed complaint. We affirm the trial court because the patient had ample warning that her claim was subject to dismissal and had been afforded a reasonable opportunity to comply with the trial court's order directing her to pay the surgeon's discretionary costs.
STATE AUTO INSURANCE COMPANIES v. GORDON CONSTRUCTION, INC., et al. Court:TCA Attorneys: David B. Brogdon, Dickson, Tennessee, for the Defendant/Appellant, Gordon Construction, Inc.. Michael P. Mills and Joseph E. Clifton, Nashville, Tennessee, for the Plaintiff/Appellee, State Auto Insurance Companies. Judge: LILLARD First Paragraph: This is an insurance coverage case. A commercial general liability insurer filed suit for declaratory judgment to determine whether it had a duty to defend the insured, a construction company. The underlying lawsuit against the insured alleged breach of contract and breach of express and implied warranties in failing to perform work in a good and workmanlike manner. The trial court granted a motion for summary judgment to the insurer, finding that the insurance policy did not require it to defend against the suit. The insured appeals, and we affirm, finding that there was no "occurrence" under the terms of the insurance policy.
NORMA TILLMAN v. LEO P. HAFFEY, et al. Court:TCA Attorneys: Kenneth R. Jones, Jr.; William D. Martin, Nashville, For Appellant, Norma Tillman Leo P. Haffey, Pro Se, Nashville Judge: CRAWFORD First Paragraph: Plaintiff filed a complaint on August 30, 1999 alleging a cause of action for malicious prosecution and abuse of process arising out of a suit filed against her by defendants. Plaintiff's cause of action accrued when the defendants, as the plaintiffs in the underlying case, voluntarily dismissed their case on September 14, 1998. When plaintiff filed the complaint, summons was issued by the court clerk, but was retained by plaintiff's counsel and returned unserved. An alias summons was issued on November 1, 1999, and defendants were served November 5, 1999. Defendants filed a motion to dismiss, which was granted by the trial court on the ground that the case was barred by the statute of limitations reasoning that the filing of the suit and retaining the process did not toll the running of the statute of limitations. Plaintiff has appealed. We vacate and remand.
STATE OF TENNESSEE v. ANTONIO TERAN SEAY Court:TCCA Attorneys: Comer Donnell, Public Defender; Virginia Townzen, Assistant Public Defender, Lebanon, Tennessee; and John B. Nisbet, III, Cookeville, Tennessee, for the appellant, Antonio Teran Seay. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and David Durham, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: Upon his guilty plea, the Defendant was sentenced to two concurrent ten year sentences to be served on community corrections. Several months into service of his sentences, the Defendant was arrested and his community corrections sentences were revoked. The trial court subsequently resentenced the Defendant to two consecutive ten year sentences. The Defendant now appeals, contending that the trial court was without authority to impose consecutive sentences and that consecutive sentences are improper. We affirm the trial court's judgment.
CYRUS D. WILSON v. STATE OF TENNESSEE Court:TCCA Attorneys: William A. Lane, Murfreesboro, Tennessee, for the appellant, Cyrus D. Wilson. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Kymberly L.A. Haas, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Cyrus D. Wilson, was convicted by a jury of first degree murder and sentenced to life in prison. His conviction was affirmed on direct appeal. The Defendant subsequently filed for post-conviction relief alleging that he had received ineffective assistance of counsel at trial and that his trial was tainted by due process violations. After an evidentiary hearing the post-conviction court denied relief. The Defendant now appeals as of right. The judgment of the post-conviction court is affirmed.

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