Opinion Flash

May 21, 2002
Volume 8 — Number 89

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.

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
06 New Opinion(s) from the Tennessee Court of Appeals
01 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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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. C.H.H. In re:
 A.N.R.

Court:TCA

Attorneys:  

Lawrence M. House, Knoxville, Tennessee, for the Appellant, C.H.H.

Paul G. Summers and Douglas Earl Dimond, Nashville, Tennessee, for the
Appellee, State of Tennessee, Department of Children's Services.                        

Judge: SWINEY

First Paragraph:

The State of Tennessee, Department of Children's Services ("DCS")
filed a petition seeking to terminate the parental rights of C.H.H.
("Father"), the biological father of the minor child, A.N.R.
("Child").  The Trial Court granted DCS' petition to terminate
Father's parental rights.  Father appeals.  We affirm as modified and
remand.

http://www.tba.org/tba_files/TCA/chh.wpd

ROY R. FERGUSON v. STATE OF TENNESSEE

Court:TCA

Attorneys:

Samuel W. Brown, Knoxville, Tennessee, for the Appellant Roy R.
Ferguson.

Eugenie B. Whitsell, Senior Counsel, and Elizabeth Martin, Senior
Counsel, Nashville, Tennessee, for the Appellee State of Tennessee.   
                     
Judge: SWINEY

First Paragraph:

Roy R. Ferguson ("Plaintiff") filed suit in the Claims Commission
against the State of Tennessee ("Defendant") after he was denied
tenure at Roane State Community College ("Roane State").  Plaintiff
claimed Defendant, by and through its agents, failed to follow its
policies and procedures, thereby violating the implied covenant of
good faith and fair dealing in his employment contract.  Defendant
filed a motion to dismiss alleging, inter alia, the covenant of good
faith and fair dealing  could not form the basis of a breach of
contract claim against the State because it was not in writing. 
Defendant also argued the Claims Commission ("Commission") lacked
subject matter jurisdiction over the claim.  The Commission concluded
it did not have jurisdiction over Plaintiff's claim because the
implied covenant of good faith and fair dealing was not written.  The
Commission further concluded Plaintiff's claim should have been
brought pursuant to the provisions of the Uniform Administrative
Procedures Act and not in the Claims Commission, and dismissed the
complaint for lack of subject matter jurisdiction.  We affirm, as
modified.

http://www.tba.org/tba_files/TCA/fergusonrr.wpd

JAMES E. GUNTER v. TIM E. EMERTON

Court:TCA

Attorneys: 

John E. Appman, Jamestown, Tennessee, for the appellant, James E.
Gunter.

Keith L. Edmiston, Knoxville, Tennessee, for the appellee, Tim E.
Emerton                         

Judge: CANTRELL

First Paragraph:

In this action against a police officer for invasion of privacy by
placing the plaintiff in false light the trial court granted summary
judgment to the defendant.  On appeal, the plaintiff claims that the
trial judge erred by granting summary judgment on a defense not raised
by the defendant.  We affirm.

http://www.tba.org/tba_files/TCA/gunterje.wpd

ORLANDO RESIDENCE, LTD. v. NASHVILLE LODGING CO., et al.

Court:TCA

Attorneys:

Samuel L. Felker and Joseph F. Welborn, III, Nashville, Tennessee for
the appellants, Nashville Lodging Company, Nashville Residence
Corporation and Kenneth E. Nelson.

Eugene N. Bulso, Jr. and Rebecca C. Blair, Nashville, Tennessee for
the appellee, Orlando Residence, Ltd.                      

Judge: CANTRELL

First Paragraph:

This is an action for damages for the fraudulent conveyance of a
Nashville hotel to defeat the rights of a creditor of the original
owner.  After a trial and two prior appeals, the Chancery Court of
Davidson County tried the case on the merits again in August of 2000. 
The jury returned a verdict in favor of the plaintiffs for $797,615. 
The defendants assert on appeal that the statute of limitations barred
the claim, that the trial court erred in miscalculating the
defendants' claim for restitution, and that there is no evidence in
the record to support a finding that the transfer was fraudulent.  We
reverse the lower court's ruling that as a matter of law the statute
of limitations had not run.  In all other respects we affirm the lower
court's judgment.

http://www.tba.org/tba_files/TCA/orlandores.wpd

ANNE B. POPE, et al. v. LEUTY & HEATH, PLLC, et al.

Court:TCA

Attorneys:  

William W. Gibson, J. Graham Matherne, Andrew B. Campbell, Lyle Reid,
and Jonathan D. Rose, Nashville, Tennessee, for the appellant, Anne B.
Pope.

Charles G. Copeland and Robert C. Richardson, Ridgeland, Mississippi,
for the appellant, George Dale.

Douglas Schmidt, Kansas City, Missouri, for the appellant, Scott B.
Lakin.

Susan M. Loving, Edmond, Oklahoma, for the appellant, Carroll Fisher.

Ronald G. Harris, Nashville, Tennessee, for the appellee, Continental
Casualty Company.                        

Judge: CANTRELL

First Paragraph:

The receivers of a group of insolvent life insurance companies 
brought a malpractice action against an accounting firm that had
performed allegedly negligent audits of the companies.  The accounting
firm denied any negligence, and filed a third party complaint against
its professional liability insurer, requesting payment of benefits
under an expired policy.  The trial court dismissed the third-party
complaint, ruling that the insurance policy was a claims-made policy
and that the insurer was no longer obligated to its former insured.  
The court certified its order as final for purposes of appeal.  We
have concluded that the trial court was correct, and we affirm its
order.

http://www.tba.org/tba_files/TCA/popeab.wpd

JO ANNE SILVERMAN v. KRSNA, INC.

Court:TCA

Attorneys:

Randolph A. Veazey and Warren M. Smith, Nashville, Tennessee, for the
appellant, KRSNA, Inc.

James S. Higgins and R. Lee Martin, Nashville, Tennessee, for the
appellee, Jo Anne Silverman.                       

Judge: CANTRELL

First Paragraph:

A woman who was severely scalded by the water in a motel bathtub sued
the motel owner under several theories.  She filed a motion for
partial summary judgment on her theory of negligence per se, arguing
that the defendant had not complied with provisions of the 1994
plumbing code designed to prevent such injuries.  The defendant
responded that it did not have to comply with the 1994 code, because
the plumbing system and hot water heaters in the motel were installed
before 1994, and were in compliance with the codes in existence at the
time of their installation.  The trial court denied the summary
judgment motion.  The court also ruled that while the defendant was
not required to comply with a provision of the 1994 code that mandated
the installation of certain safety devices in hot water systems, it
was required to comply with a provision that established a maximum
water temperature setting of 120 degrees Fahrenheit.  Because of the
potential impact of its ruling on the ultimate outcome of this case,
the court granted the parties permission to apply to this court for
interlocutory appeal, which we granted.  We affirm the denial of
summary judgment, but reverse the trial court's ruling that makes part
of the 1994 code retroactive.

http://www.tba.org/tba_files/TCA/silvermanja.wpd

STATE OF TENNESSEE v. TRACY FARRELL

Court:TCCA

Attorneys:

William A. Buckley, Jr. (at trial), William Donaldson and Julie A.
Rice (on appeal), for the Appellant, Tracy Farrell.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
and Shari Tayloe, Assistant District Attorney General, for the
Appellee, State of Tennessee.                      

Judge: WITT

First Paragraph:

The defendant, Tracy Farrell, appeals from his eleven drug convictions
rendered by a McMinn County Criminal Court jury.  On appeal he
challenges the trial court's failure to grant a severance of offenses.
 We have determined that the trial court did not abuse its discretion
in denying the motion to sever offenses, and we affirm the conviction
judgments.

http://www.tba.org/tba_files/TCCA/farrelltracy.wpd

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