Opinion Flash

February 5, 2004
Volume 10 — Number 024

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
03 New Opinion(s) from the Tennessee Court of Appeals
00 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


CLEMMYE MULLENIX BERGER v. BRENDA O'BRIEN, ET AL.

Court:TCA

Attorneys:                          

Patrick M. Ardis, Memphis, For Appellants, Harold G. Walter and Wolff
Ardis, P.C.

Michael F. Pleasants, Memphis, For Appellee, Morris Jack Berger, Sr.

Richard M. Carter and Elizabeth J. Landrigan, Memphis, For Appellee,
Sylvia Galassi Berger As Trustee of the Trusts for the Benefit of
Bianca Berger

Judge: CRAWFORD

First Paragraph:

This appeal involves the trial court' s denial of additional fees and
expenses sought by guardian ad litem and attorney ad litem incurred in
defending the previous appeal by an appellant contesting a judgment
against him for a portion of the guardian ad litem and attorney ad
litem fees incurred in the course of the trial court proceedings.  In
the previous appeal, this Court denied the application of the attorney
ad litem and guardian ad litem for damages for frivolous appeal.  The
trial court denied the motion seeking additional fees and expenses and
the guardian ad litem and attorney ad litem have appealed.  We affirm.

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

PHILLIP LUCAS, ET AL. v. STATE OF TENNESSEE, MICHAEL E. COLLINS, ET
AL. v. STATE OF TENNESSEE

Court:TCA

Attorneys:                          

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; Dawn Jordan, Rebecca Lyford, George Coffin,
Nashville, Tennessee, for the appellant, State of Tennessee.

Mart G. Fendley, Clarksville, Tennessee, for the appellee, Phillip
Lucas.

Tony R.. Dalton, Chad D. Emerson, Knoxville, Tennessee, for the
appellee, Michael E. Collins.

Judge: CAIN

First Paragraph:

These consolidated cases present two separate factual situations
involving alleged liability of the state under the Tennessee Claims
Commission Act, Tennessee Code Annotated section 9-8-301, et seq., for
dangerous conditions existing on two separate highways.  In both cases
the State asserted in defense discretionary function immunity. 
Because this defense is central to both cases, the Claims Commission
consolidated the cases for consideration of the applicability of
discretionary function immunity.  In an en banc order, the Commission,
construing Tennessee Code Annotated section 9-8- 307(d) and cases
based upon that section, overruled the State's motions for summary
judgment.  We hold that under the plain and unambiguous provisions of
Tennessee Code Annotated section 9-8- 307(d) the State is not entitled
to assert discretionary function immunity in actions under the
Tennessee Claims Commission Act and affirm the judgment of the Claims
Commission.

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

ORIGINAL CHRIST TEMPLE CHURCH v. ALEXANDER & ASSOCIATES, INC.

Court:TCA

Attorneys:                          

Trippe S. Fried, Nashville, Tennessee, for the appellant, Original
Christ Temple Church.

David B. Scott, Nashville, Tennessee, for the appellee, Alexander &
Associates, Inc.

Judge: ASH

First Paragraph:

Between 1989 and 1991, appellant Original Christ Temple Church
("Church") contacted appellee Alexander & Associates, Inc.
("Alexander") to procure an insurance policy to cover its church
building and contents in the event of loss.  Church claims the
original policy with Aetna Casualty and Surety guaranteed Church "100%
replacement cost coverage."  In 1993, Alexander ceased writing
insurance policies for Aetna, and Alexander procured a replacement
policy for Church through a new insurer.  On November 3, 1999,
Church's building was completely destroyed by fire.  Church filed a
complaint against Alexander on January 4, 2001 alleging negligence
based on Alexander's failure to advise Church of changes in its
insurance coverage.  Church additionally sought relief on grounds of
fraud, intentional interference with contract rights, fraudulent
concealment, negligent misrepresentation and breach of fiduciary duty.
 Church claimed its new policy issued by Alexander in 1993 did not
guarantee the same amount of replacement cost coverage as its original
policy.  Alexander filed an answer on February 7, 2001 denying all
allegations and raising an affirmative defense of statute of
limitations.  On June 3, 2002, Alexander filed a motion for summary
judgment asserting Church's complaint was time-barred by the
applicable statute of limitations.  In an order entered August 15,
2002, the trial court granted Alexander's summary judgment motion
finding the statute of limitations, as set forth in T.C.A. S 28-3-105,
expired prior to Church's filing of its complaint.  Notice of this
appeal soon followed.  For the reasons set forth below, the order of
the trial court granting summary judgment based on the applicable
statute of limitations is reversed.

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

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