Opinion FlashFebruary 5, 2004Volume 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):
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 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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