Opinion Flash

August 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):
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
07 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


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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