Opinion Flash

March 22, 2004
Volume 10 — Number 055

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):
01 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
08 New Opinion(s) from the Tennessee Court of Appeals
06 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


CINDERELLA FERRELL OSBORNE v. MOUNTAIN LIFE INSURANCE COMPANY
CORRECTED OPINION

Court:TSC

Attorneys:                          

Lewis S. Howard, Jr. and Heather R. Gunn, Knoxville, Tennessee, for
the Appellant, Mountain Life Insurance Company.

Douglas T. Jenkins, Rogersville, Tennessee, for the Appellee,
Cinderella Ferrell Osborne.

Judge: ANDERSON

First Paragraph:

We granted review to determine whether the defendant credit life
insurance company was estopped from relying on policy language which
excluded coverage if an insured received medical treatment for and
died from a disease within six months of the date of coverage.  The
trial court granted summary judgment to the credit life insurance
company based on the policy exclusion.  The Court of Appeals reversed,
holding that the defendant was estopped from relying on the policy
exclusion and ordering payment of the policy benefits to the
plaintiff, widow of the insured.  After reviewing the record and
applicable authority, we conclude that the trial court correctly
granted summary judgment for the defendant and that the Court of
Appeals erred in holding that the defendant was estopped from relying
on the policy exclusion.  We therefore reverse the judgment of the
Court of Appeals and reinstate the judgment of the trial court.

CORRECTED OPINION
http://www.tba.org/tba_files/TSC/osbornecf.wpd

BLAKE BURTON and MICHAEL BURTON, v. HARDWOOD PALLETS, INC., ROBERT
MCKENZIE, and EDWIN REEVES

Court:TCA

Attorneys:                          

Michael A. Anderson, Chattanooga, Tennessee, for Appellants.

Scott N. Brown and Neil A. Brunetz, Chattanooga, Tennessee, for
Appellees.

Judge: FRANKS

First Paragraph:

The Trial Court granted defendants Summary Judgment on claims of fraud
in the inducement to contract.  On appeal, we Affirm.

http://www.tba.org/tba_files/TCA/burtonb.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/christtemple.wpd

BOBBY R. ESSARY v. JOHN R. ESSARY

Court:TCA

Attorneys:                          

Marcus M. Reaves, Denmark, TN, for Appellant

Stephen L. Hughes, Milan, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves a Chancery Court's denial of the Appellant's Motion
to Set Aside Judgment pursuant to Rule 60.02 of the Tennessee Rules of
Civil Procedure.  For the following reasons, we affirm the lower
court's denial of this motion and remand for further proceedings.

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

LANEY BRENTWOOD HOMES, LLC v. EARL PRECHTEL, ET AL.

Court:TCA

Attorneys:                          

Larry E. Parrish, Memphis, TN, for Appellant

Edward L. McKenney, Jr., Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case arises from the denial of Plaintiff's application for a
building permit.  Plaintiff appealed the Building Inspector's denial
of said permit to the Board of Zoning Appeals, which upheld the
denial.  Plaintiff then appealed to the Chancery Court of Shelby
County by way of common-law writ of certiorari.  Again, the denial of
the permit was affirmed.  Plaintiff then sought our review of the
denial.  For the following reasons, we dismiss the instant appeal on
the basis of mootness.

http://www.tba.org/tba_files/TCA/laneyb.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/lucasp.wpd

CHARLES W. MOORE, ET AL. v. CLYDE GREEN, ET AL.

Court:TCA

Attorneys:                          

Grant W. Smith, Goodlettsville, Tennessee, for the appellants Ray
Swing, Juanita Swing Sircy, Jeanne Swing Pennington, and James Edward
Swing, and Homer R. Ayers, Goodlettsville, Tennessee, for the
appellants Charles W. Moore and Linda Moore Maggart, Executrix for the
Estate of William Herschel Moore, a/k/a Herschel Moore, deceased.

William H. Lassiter, Jr. and Jordan S. Keller, Nashville, Tennessee,
for the appellee Clyde Green.

Judge: MADDUX

First Paragraph:

This appeal involves a dispute concerning the estate of Nellie K.
Ellis.  The plaintiffs, Charles W. Moore, Linda Moore Maggart
(Executrix of the estate of Herschel Moore, deceased), Ray Swing,
Juantia Swing Sircy, Jeane S. Pennington, and James E. Swing,
contested the decision to admit the will to probate.  Their position
is that the will is invalid because of a train of circumstances which
shows the will was (1) not properly executed, (2) the testator lacked
sufficient mental capacity, or (3) the beneficiary exercised undue
influence over the testator.  The trial court granted the defendant
Clyde Green summary judgment, holding that the will was properly
executed and that the plaintiffs did not adequately prove undue
influence or lack of mental capacity.  We affirm the trial court's
decision.

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

BOBBY R. POSEY, and wife, SABRINA POSEY, and DALE TEAGUE, on behalf of
themselves and all others similarly situated, v. DRYVIT SYSTEMS, INC.,
BARTON-RILEY COMPANY, LLC, BLAZER HOMES, INC., JAMES EDWARD PEE,
POLY-M CONTRACTORS, INC., REEVE CONSTRUCTION COMPANY, INC., and
THORNTON CONSTRUCTION COMPANY, INC.

Court:TCA

Attorneys:                          

Angelia D. Morie, Nashville, Tennessee, and Julie Muth Goodman,
Lexington, Kentucky, for Appellants.

Gordon Ball, Knoxville, Tennessee, Gary E. Mason, Washington, DC,
Stuart C. Markman, Tampa, Florida, and Everette L. Doffermyre,
Atlanta, Georgia, for Appellees.

Ellis A. Sharp and Jon M. Cope, Knoxville, Tennessee, and Peter W.
Morgan, R. Bruce Holcomb, and Maria Colsey Heard, Washington, DC, for
Appellee, Dryvit Systems, Inc.

Judge: FRANKS

First Paragraph:

In this class action, the Trial Court refused to permit Homebuilders
and individual claimants to intervene.  On appeal, we reverse as to
Homebuilders, but affirm as to the individual claimants.

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

URSULA WIMPEE v. GRANGE MUTUAL CASUALTY COMPANY

Court:TCA

Attorneys:                          

Craig B. Flood, II, Memphis, TN, for Appellant

Howard B. Manis, Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This appeal, from a grant of summary judgment, involves the
interpretation of a homeowner's insurance policy.  The lower court
found that the policy covered water damage caused by the back- up of
the neighborhood's exterior sewers and drains.  For the following
reasons, we reverse the judgment of the lower court and remand for
further proceedings.

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

STATE OF TENNESSEE v. CARLOS SALVADOR ANGEL, JR.
WITH ORDER

Court:TCCA

Attorneys:                          

Cynthia F. Burnes, Nashville, Tennessee, for the Appellant, Carlos
Salvador Angel, Jr.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Thomas E. Williams, III, Assistant Attorney
General; Victor S. (Torry) Johnson III, District Attorney General; and
Brian Holmgren, Assistant District Attorney General, for the Appellee,
State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Carlos Salvador Angel, Jr., was convicted of aggravated
sexual battery by a Davidson County jury and sentenced to ten years in
the Department of Correction.  On appeal, Angel argues that: (1) the
admission of testimony by his former girlfriend, who was not the
victim in this case, was irrelevant and unduly prejudicial and (2) the
ten-year sentence imposed was excessive.  After review of the record,
the judgment of conviction and sentence are affirmed.

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

ORDER
http://www.tba.org/tba_files/TCCA/angelcarloss_ord.wpd

CHARLES CRENSHAW, PRO SE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Charles Crenshaw, pro se.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams,
Assistant Attorney General, for the appellee, State of  Tennessee.

Judge: HAYES

First Paragraph:

This matter is before the Court upon the State's motion to affirm the
judgment of the trial court pursuant to Rule 20, Rules of the Court of
Criminal Appeals. The Petitioner, Charles Crenshaw, appeals the trial
court's denial of his motion for arrest of judgment. Finding that the
instant petition is not proper as either a motion in arrest of
judgment, petition for post-conviction relief, or application for writ
of habeas corpus relief, we affirm the dismissal of the trial court.

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

MARQUEZ CRENSHAW v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Bruce A. Poag, Nashville, Tennessee, for the appellant, Marquez
Crenshaw.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Senior Counsel; Victor S. Johnson, III, District Attorney General; and
Stephen Douglas Thurman and Brian Keith Holmgren, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Marquez Crenshaw, appeals the Davidson County Criminal
Court's denial of his petition for post-conviction relief from his
five especially aggravated kidnapping convictions, his especially
aggravated robbery conviction, and his aggravated burglary conviction
and resulting effective sentence of twenty-seven years.  He claims he
received the ineffective assistance of counsel, primarily regarding
the failure to present alibi evidence.  We affirm the judgment of the
trial court.

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

REGINALD D. HUGHES, PRO SE v. DAVID MILLS, WARDEN

Court:TCCA

Attorneys:                          

Reginald D. Hughes, pro se.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General, for the appellee, State of  Tennessee.

Judge: HAYES

First Paragraph:

This matter is before the Court upon the State's motion to affirm the
judgment of the trial court by opinion pursuant to Rule 20, Rules of
the Court of Criminal Appeals.  The Petitioner is appealing the trial
court's denial of habeas corpus relief.  A review of the record
reveals that the Petitioner is not entitled to habeas corpus relief. 
Accordingly, the State's motion is granted and the judgment of the
trial court is affirmed.

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

EDDIE J. PHIFER v. STATE OF TENNESSEE
CORRECTED OPINION

Court:TCCA

Attorneys:                          

Eddie J. Phifer, pro se, Crestview, Florida.

Paul G. Summers, Attorney General & Reporter; Kathy Aslinger,
Assistant Attorney General; John Carney, District Attorney General;
and Dent Morriss, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Eddie J. Phifer, was found guilty of aggravated rape
and aggravated kidnapping and sentenced to twenty-five years for each
conviction to be served consecutively.  The appellant filed a motion
for a new trial on June 20, 1980 and another motion for a new trial on
June 30, 1980.  The trial court denied the motion for a new trial on
March 6, 1981 and no appeal was filed.  In July, 2003, the appellant
filed a petition for writ of habeas corpus alleging that he is
entitled to habeas corpus relief because a judgment was never rendered
against him.  The trial court dismissed the petitions. After a review
of the record before this Court we AFFIRM the judgment of the trial
court.

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

CORRECTION MEMO
http://www.tba.org/tba_files/TCCA/phifereddie_cor.wpd

STATE OF TENNESSEE v. TIMOTHY P. WILMOTH

Court:TCCA

Attorneys:                          

Virginia Lee Story, Franklin, Tennessee, for the appellant, Timothy P.
Wilmoth.

Paul G. Summers, Attorney General & Reporter; Christine M. Lapps,
Assistant Attorney General; Sharon E. Guffee, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Timothy P. Wilmoth, pled guilty to possession of less
than .5 grams of cocaine and misdemeanor evading arrest.  The trial
court imposed concurrent sentences of six years and eleven months,
twenty-nine days, respectively.  All but thirty days was suspended. 
Later, the defendant's probation was revoked and he was ordered to
serve the sentence in the Department of Correction.  In this appeal as
of right, the defendant concedes a violation of the terms of his
probation, but asserts that he should have been returned to probation
or placed on community corrections.  The judgment of the trial court
is affirmed.

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

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