Opinion FlashAugust 4, 2004
Volume 10 Number 149
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):
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Howard H. Vogel
JOHN R. ALBAMONT v. TOWN OF PEGRAM, TENNESSEE Court:TCA Attorneys: Robert W. Rutherford and David H. Hornik, Nashville, Tennessee, for the appellant, John R. Albamont. Shannon C. Smith, Nashville, Tennessee, for the appellee, Town of Pegram, Tennessee. Judge: CLEMENT First Paragraph: Owner of commercial property in Pegram, Tennessee, filed suit against the Town of Pegram challenging the validity of Pegram's sewer tap privilege fee, asserting that the fee bears no reasonable relationship to the demand placed on the sewer system and therefore is capricious, arbitrary and unreasonable. The trial court granted summary judgment for the Town of Pegram and dismissed the action. We find there are material facts in dispute and therefore reverse the decision of the trial court granting summary judgment. http://www.tba.org/tba_files/TCA/albamontjr.wpd
STATE OF TENNESSEE, EX REL., REBA ALEXANDER v. MICHAEL WILLIAMS STATE OF TENNESSEE, EX REL., MICHAEL SPRINGFIELD v. RITA R. SHELBY Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, and Stuart F. Wilson-Patton, Senior Counsel, for the appellant, State of Tennessee. Judge: FARMER First Paragraph: This is a consolidated appeal of two lawsuits in which the trial court refused to enforce or modify child support orders administratively issued under Tennessee Code Annotated 36-5-103(f). The trial court dismissed the State's petitions in both actions. We vacate the orders of dismissal and remand for proceedings on the merits. http://www.tba.org/tba_files/TCA/alexand.wpd
KEITH ROBERT ALLEN, ET AL. v. STATE OF TENNESSEE Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Dawn Jordan, and Rebecca Lyford, Assistant Attorneys General, for the appellant, State of Tennessee. R. Curtis Mabbitt, Muskegon, Michigan and Richard T. Matthews, Columbia, Tennessee, for the appellees, Keith Robert Allen, and wife, Carol Elizabeth Allen, Individually and as Administrators of the Estate of Robert Keith Allen. Judge: CAIN First Paragraph: The Claims Commission awarded damages to Plaintiffs individually and as administrators of the Estate of their son, Robert Keith Allen. The state was held liable under Tennessee Code Annotated section 9-8-307(a)(1)(I) and (J). We affirm the judgment of the Claims Commission. http://www.tba.org/tba_files/TCA/allenkeithr.wpd
SUSAN GREEN v. LEON MOORE, ET AL. Court:TCA Attorneys: Pam M. Spicer, Nashville, Tennessee, for the appellant, Susan Green. Eugene N. Bulso, Jr., Barbara Hawley Smith, and Joseph Gaspar DeGaetano, Nashville, Tennessee, for the appellees, Leon Moore, ShoLodge, Inc., and ShoLodge Franchise Systems, Inc. Judge: CLEMENT First Paragraph: This appeal pertains to an alleged breach of a settlement agreement arising from a prior dispute between the parties. The plaintiff brought this action to recover damages resulting from an insulting remark allegedly made by an executive of her former employer in violation of a prior settlement agreement that contained a non-disparagement provision. As a result of the alleged breach, the plaintiff claims she was not permitted to serve as Director of Sales for twenty-seven motels, for which she would have received additional compensation, and was precluded from advancing with her new employer. The trial court dismissed plaintiff's claims on summary judgment. Plaintiff appealed. We affirm. http://www.tba.org/tba_files/TCA/greensusan.wpd
MARION P. GURKIN, III v. ROY WOOD, INDIVIDUALLY, ASSOCIATES GENERAL INSURANCE, INC., TENNESSEE INSURANCE COMPANY, A MEMBER OF THE INGRAM INDUSTRIES INSURANCE GROUP, PERMANENT GENERAL ASSURANCE CORPORATION, PERMANENT GENERAL COMPANIES AND INGRAM INDUSTRIES INSURANCE GROUP Court:TCA Attorneys: Gary R. Wilkinson and John P. Wade, Memphis, for the appellants Permanent General Insurance Companies, Permanent General Assurance Corp., Tennessee Insurance Company, and Ingram Industries Insurance Group. Richard S. Taube, Louis P. Chiozza, and Steven Rand Walker, Memphis, for the appellee Marion P. Gurkin, III. J. Kimbrough Johnson, Memphis, for the appellee Roy Wood. Judge: KIRBY First Paragraph: This case involves an automobile insurance claim. The insured's family owned a chain of convenience stores. The insured applied for a personal automobile insurance policy. The insurance agent completed the application, indicating that the vehicle was for personal use, and the insured approved it. Later, the insured suffered personal injuries from a traffic accident and submitted a claim to the insurance company. The insurance company asserted that the vehicle was owned by the family convenience store chain and was used for business purposes. On this basis, the insurance company refused to pay the claim and rescinded coverage, alleging there were material misrepresentations in the insured's application. The insured filed this lawsuit against the insurance company and its agent, and the insurance company filed a cross-claim against the agent. After a bench trial, the trial court found that the vehicle was not owned by the family business and was not used for business purposes, and that consequently there was insurance coverage and the agent was not liable. The insurance company appeals. We affirm, finding that the evidence supports the trial court's findings that the insured owned the vehicle individually, that the insured did not use the vehicle for business purposes, and that the agent was not negligent. http://www.tba.org/tba_files/TCA/gurkinmp.wpd
NORMAN HAMBY v. STATE OF TENNESSEE Court:TCA Attorneys: Stephen R. Leffler, Memphis, Tennessee, for the appellant, Norman Hamby. Peter M. Foley, Knoxville, Tennessee, for the appellee, University of Tennessee. Judge: FARMER First Paragraph: Plaintiff filed suit against Defendant seeking damages for injuries caused by a fall that occurred on Defendant's premises. The Tennessee Claims Commission ruled in favor of Defendant. Plaintiff appealed to this Court. This Court reversed the commission's decision and remanded for a determination of comparative fault. Upon remand, the commission ruled that Defendant had breached its duty but found that Plaintiff was at least 50% at fault for his injuries, thereby barring Plaintiff's recovery. In the absence of a transcript to support Plaintiff's position, we must affirm the commission's ruling. http://www.tba.org/tba_files/TCA/hambynorm.wpd
BRUCE MCGEHEE, M.D. v. OTIS A. PLUNK, M.D. Court:TCA Attorneys: William P. Zdancewicz, Memphis, Tennessee, for the appellant, Otis A. Plunk, M.D. Stephen R. Leffler, Memphis, Tennessee, for the appellee, Bruce McGehee, M.D. Judge: FARMER First Paragraph: A judgment was rendered against corporation, of which Defendant is 100% owner. Plaintiff sought to recover judgment from Defendant's corporation but was unsuccessful. Plaintiff filed suit against Defendant alleging that conveyance made between corporation and Defendant was fraudulent. The trial court found the conveyance fraudulent and assessed the judgment against the Defendant, personally. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/mcgeheeb.wpd
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