Opinion FlashMarch 22, 2004Volume 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):
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 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 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! 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