Opinion FlashNovember 07, 2003Volume 9 — Number 205 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):
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, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel RANDY ARNWINE v. UNION COUNTY BOARD OF EDUCATION, ET AL. Court:TSC Attorneys: Lynn Tarpy and Thomas M. Leveille, Knoxville, Tennessee, for the appellant, Randy Arnwine. Jenny Coques Rogers and John C. Duffy, Knoxville, Tennessee, and Charles W. Cagle, Nashville, Tennessee, for the appellees, Union County Board of Education and David F. Coppock. Judge: BIRCH First Paragraph: We granted permission to appeal in this case to determine whether the Union County Board of Education had authority to enter into a four-year employment contract with an assistant superintendent. The trial court found that the parties' four-year contract was valid. The Court of Appeals reversed the trial court's decision, concluding that no statutory authority existed for the Union County Board of Education to enter into a multi-year employment contract with an assistant superintendent. We affirm the decision of the Court of Appeals. http://www.tba.org/tba_files/TSC/arnwinerandy.wpd PEGGY GASTON v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY Court:TSC Attorneys: H. Chris Trew, Athens, Tennessee, for the Appellant, Tennessee Farmers Mutual Insurance Company. Larry B. Nolen, Athens, Tennessee, for the Appellee, Peggy Gaston. Judge: ANDERSON First Paragraph: We granted review to decide whether there was sufficient evidence to require a jury to determine whether the insurer waived compliance with insurance policy provisions requiring the insurer's consent to a third-party settlement by its insured. After the insurance company denied her claim, the insured filed a complaint alleging breach of contract, violation of the Tennessee Consumer Protection Act, and bad faith. The trial court directed a verdict for the insurance company, finding that the insured failed to comply with the subrogation provisions of her policy and that the insurance company did not waive these provisions. The Court of Appeals reversed. After reviewing the record and applicable authority, we agree with the Court of Appeals that there was evidence from which a reasonable jury could find that the insurance company waived the subrogation provisions. We also conclude that the insured was not required to demonstrate that the insurance company had not been prejudiced and that the trial court improperly directed verdicts on the insured's claims under the Tennessee Consumer Protection Act and the bad faith statute. We therefore affirm the Court of Appeals' judgment and remand to the trial court for a new trial. http://www.tba.org/tba_files/TSC/gastonp.wpd STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. BERNADETTE BERNICE CLARK, ET AL. Court:TCA Attorneys: Jason C. Scott, Trenton, For Appellant, Bernadette Bernice Clark Paul G. Summers, Attorney General and Reporter; Pamela A. Hayden-Wood, Nashville, For Appellee, Tennessee Department of Children's Services Judge: CRAWFORD First Paragraph: This is a termination of parental rights case. The mother appeals from the order of the Juvenile Court of Gibson County, terminating her parental rights. Specifically, the mother asserts that the grounds cited for termination are not supported by clear and convincing evidence in the record. Because we find clear and convincing evidence in the record to support the trial court's findings, we affirm. http://www.tba.org/tba_files/TCA/clarkb.wpd JOHN WAYNE GOODMAN v. CITY OF SAVANNAH and SAVANNAH BOARD OF COMMISSIONERS Court:TCA Attorneys: David M. Sullivan, Memphis, Tennessee, for appellant, John Wayne Goodman. John C. Duffy, Knoxville, Tennessee, and James A. Hopper, Savannah, Tennessee, for appellees, City of Savannah and Savannah Board of Commissioners. Judge: KIRBY First Paragraph: This is an age discrimination case involving a mandatory retirement policy. A firefighter employed by the defendant municipality was forced to retire at age sixty-two pursuant to the municipality's mandatory retirement policy. The firefighter then filed this lawsuit against the municipality, asserting that the mandatory retirement policy violates the Tennessee Human Rights Act by discriminating against him based on his age. The trial court granted summary judgment in favor of the municipality. The firefighter appeals. We affirm, finding that Tennessee Code Annotated section 8-36-205 authorizes the municipality to adopt a mandatory retirement policy without being required to establish age as a bona fide occupational qualification. http://www.tba.org/tba_files/TCA/goodmanj.wpd IN RE: C.L.J. Court:TCA Attorneys: Kelli Barr Summers, Brentwood, Tennessee, for the appellant. J. L. Thompson, III, Nashville, Tennessee, for the appellees. Judge: KOCH First Paragraph: This appeal involves a dispute over the custody of an eight-year-old boy. The child's parents never married and engaged in a protracted, bitter custody dispute until the father died of cancer in 2003. Immediately after the father's death, his sister and brother-in-law filed a petition in the Davidson County Juvenile Court seeking custody of the child. The child's mother opposed the petition, asserting that her custodial rights were superior to those of the boy's aunt and uncle. The juvenile court granted temporary custody of the child to his aunt and uncle pending a hearing. The court also determined that the child's mother could not gain custody of her son unless she proved that she would be able to adequately fulfill her parenting responsibilities. The juvenile court granted the mother's request for an interlocutory appeal, and this court granted the petition to determine whether the juvenile court applied the correct legal standard for custody disputes between a biological parent and non-parents. We have determined that the juvenile court has not employed the correct standard in this case and that the child's mother is entitled to have custody of her son unless the trial court determines that returning the child to his mother will expose him to a risk of substantial harm. http://www.tba.org/tba_files/TCA/inreclj.wpd GWENDOLYN JACKSON, ET AL. v. ZODIE HAMILTON, ET AL. Court:TCA Attorneys: Stanley H. Less, Memphis, TN, for Appellants John D. Richardson, Teresa A. Boyd, Memphis, TN, for Appellees Judge: HIGHERS First Paragraph: This action arises out of an automobile accident, and Plaintiffs' claimed damages of lost wages, loss of consortium, medical expenses, and pain and suffering. The case was tried before a jury, who found in favor of the Plaintiffs and awarded one of the Plaintiffs $600. Plaintiffs appeal the verdict, and this Court reverses and remands the case for a new trial. http://www.tba.org/tba_files/TCA/jacksg.wpd DENNIS JOSLIN COMPANY, LLC, as assignee of FIRST AMERICAN NATIONAL BANK, JACKSON v. WILLIAM L. JOHNSON Court:TCA Attorneys: W. Lewis Jenkins, Jr., Dyersburg, TN, for Appellant R. Scott Pietrowski, Jackson, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from the order of the lower court denying Joslin's request for a deficiency judgment against Johnson. Joslin based its request upon a December 13, 1990 order of the Chancery Court of Madison County, Tennessee that obligated Johnson to repay a debt to FANB, Joslin's predecessor in interest. The lower court denied Joslin's prayer for relief, and discharged Johnson's obligation to satisfy the prior judgment, for two reasons. First, the lower court based its judgment on the failure of FANB to dispose of Johnson's collateral in a commercially reasonable manner. Second, the trial court found that the doctrine of laches bars Joslin's claim. For the following reasons, we affirm the ruling of the lower court. http://www.tba.org/tba_files/TCA/joslin.wpd LESLIE ANN ROBINSON v. WILLIAM L. FULLITON AND VALERIE T. CORDER Court:TCA Attorneys: James R. Garts, Jr., and Shannon E. Holbrook, Memphis, Tennessee, for the appellant, Valerie T. Corder. Mimi Phillips, Memphis, Tennessee, for the appellant, William L. Fulliton. Ronald Krelstein and Rebecca Miller, Memphis, Tennessee, for the appellee, Leslie Ann Robinson. Judge: KIRBY First Paragraph: This case involves the trial court's refusal to expunge the records of a criminal contempt proceeding. In the underlying divorce action, the wife moved for criminal contempt sanctions against the husband's attorney. The trial court assigned a special prosecutor to investigate the criminal contempt charges against the attorney. The special prosecutor later determined that there was insufficient evidence of contempt. The attorney thereafter requested that the trial court expunge the public records relating to the charge of criminal contempt under the expungement statute, Tennessee Code Annotated S 40-32-101(a)(1). The trial court denied the attorney's request, concluding that the statute did not apply to a criminal contempt proceeding within the meaning of the statute. The attorney now appeals. Although the rules of appellate procedure do not provide for the attorney to appeal the trial court's decision relating to expungement, the appeal will be treated as a petition for a writ of certiorari. We now grant the writ and reverse the trial court's decision, concluding that the expungement statute applies insofar as the contempt charges were criminal in nature. http://www.tba.org/tba_files/TCA/robinsonla.wpd TOYOTA MOTOR CREDIT CORPORATION v. STATE OF TENNESSEE DEPARTMENT OF SAFETY
Court:TCA
Attorneys:
Paul G. Summers, Attorney General, and Richard H. Dunavant, Assistant
Attorney General, Nashville, Tennessee, for the appellant, State of
Tennessee Department of Safety.
Randall J. Spivey, Nashville, Tennessee, for the appellee, Toyota
Motor Credit Corporation.
Judge: GLENN
First Paragraph:
This case involves the seizure and forfeiture of a leased vehicle.
The Department of Safety ("the Department") sent a notice of the
forfeiture proceedings to the corporate owner/lessor at the address
listed on the vehicle's certificate of title. Because the owner had
moved two years previously and the Postal Service had ceased
forwarding its mail, the unopened certified letter was returned to the
Department marked "Not Deliverable as Addressed Unable to Forward."
The Department took no further steps to locate the owner and summarily
ordered the forfeiture of the vehicle. Upon learning of the
forfeiture, the owner filed a petition for a stay and reconsideration,
which the Department denied. The owner then filed a petition for
review in the Chancery Court of Davidson County in which it challenged
the adequacy of the notice procedure. The trial court ruled the
notice procedure did not meet constitutional due process requirements
under the circumstances, in which the corporate owner had a registered
agent for service of process whose name and address were easily
obtainable through the Secretary of State's Office. The Department
appeals, arguing that due process does not require that it seek out a
corporate owner that has failed to notify the Department of its change
of address, as required by Tennessee Code Annotated section 55-4-131.
We affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCA/toyota.wpd
STATE OF TENNESSEE v. CARLOS GREEN Court:TCCA Attorneys: Robert Wilson Jones, District Public Defender; and Garland Ergueden, Cathy A. Hailey, and Michael J. Johnson, Assistant Public Defenders, for the appellant, Carlos Green. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; William L. Gibbons, District Attorney General; and Kim Kea Harris and Jerry R. Kitchen, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was found guilty of first degree premeditated murder and sentenced to life imprisonment. The defendant now appeals contending that (1) the trial court erred by allowing the defendant's impeachment with inadmissible evidence, and (2) he was denied a fundamentally fair trial because of improper questions and argument by the prosecution. We hold that (1) the defendant's impeachment was improper, however, the error was harmless, and (2) the State's questions and argument were not improper, and even if they were improper, they did not rise to the level of plain error. http://www.tba.org/tba_files/TCCA/greenc.wpd STATE OF TENNESSEE v. TERRANCE HEARD Court:TCCA Attorneys: C. Anne Tipton, Memphis, Tennessee, for the appellant, Terrance Heard. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; Terry Harris, Assistant Judge: WEDEMEYER First Paragraph: A Shelby County Grand Jury indicted the Defendant, Terrance Heard, along with fourteen other members of the "Gangster Disciples" street gang, for first degree premeditated murder, murder in the perpetration of a kidnapping, murder in the perpetration of a robbery, and especially aggravated kidnapping after two men were kidnapped and beaten by the gang, leaving one victim dead. A Shelby County jury convicted the Defendant of first degree premeditated murder, murder in the perpetration of a kidnapping, and two counts of especially aggravated kidnapping, and the trial court merged the murder convictions, imposed a life sentence with the possibility of parole for the murder conviction and twenty-five years for each count of especially aggravated kidnapping, and ordered all the sentences to run consecutively. The Defendant now appeals, contending the following: (1) that the trial court erred by denying the Defendant's motion to suppress the pre-trial identification of the Defendant made by a witness and by limiting cross-examination of the witness regarding this identification; (2) that the assistant district attorney improperly commented on the state of mind of the victim and a co-defendant during his opening statement to the prejudice of the Defendant; (3) that the trial court erred by allowing a witness to testify as to the victim's state of mind just prior to his murder concerning the Gangster Disciples; (4) that the trial court erred by denying the Defendant's request for a special jury instruction addressing the theories of duress and mere presence; and (5) that the evidence presented at trial was insufficient for a rational trier of fact to find the Defendant guilty beyond a reasonable doubt. We find no reversible error and conclude that sufficient evidence exists in the record to support the Defendant's convictions. Accordingly, we affirm the trial court's judgments. http://www.tba.org/tba_files/TCCA/heardt.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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