Opinion Flash

September 14, 2004
Volume 10 — Number 177

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
08 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


FIRST TENNESSEE BANK NATIONAL ASSOCIATION v. BAD TOYS, INC., ET AL.

Court:TCA

Attorneys:                          

R. Wayne Culbertson, Kingsport, Tennessee and Terry Risner, Mount
Carmel, Tennessee, for the Appellants, Bad Toys, Inc., Larry N. Lunan,
and Susan H. Lunan.

Robert L. Arrington, Kingsport, Tennessee, for the Appellee, First
Tennessee Bank National Association.

Judge: SWINEY

First Paragraph:

First Tennessee Bank National Association ("the Bank") sued Bad Toys,
Inc. and Larry N. Lunan  on a note that allegedly was "fully mature,
owing and unpaid."  The note had been cross- collateralized with two
other notes payable to the Bank.  The three notes and the attendant
guaranty agreements and security agreements were executed either by
Bad Toys, Inc., Larry N. Lunan, or Susan H. Lunan ("Defendants" or as
appropriate "the Lunans").  In addition to other collateral, shares of
stock were pledged as collateral for the notes.  Bad Toys, Inc. and
Larry N. Lunan answered the complaint and filed a counter-complaint in
which Susan H. Lunan joined as a counter-plaintiff.  The
counter-complaint alleged, in part, that the Bank had breached its
fiduciary duty to the Lunans by failing to sell the pledged stock and
that the Bank either had been grossly negligent or had intentionally
caused harm to Defendants by refusing to sell the stock.  The Bank
filed a motion to dismiss and for summary judgment.  Defendants
opposed by filing the Lunans' affidavit claiming that the Bank had
agreed to sell the shares of stock as soon as they were pledged, even
though the Lunans were forbidden by an agreement with other
shareholders from selling the stock themselves, and that the Bank
failed to sell the shares of stock as it had agreed to do.  The Trial
Court held the Lunans' affidavit should be stricken, in part, and
granted the Bank summary judgment.  Defendants appeal.  We affirm.

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

YVONNE FOSTER v. MOLLIS WILSON, ET AL.

Court:TCA

Attorneys:                          

Jerry Stokes and Theresa H. Patterson of Memphis for Appellant, Yvonne
Foster

Melanie M. Stewart and Matthew S. Russell of Memphis for Appellee,
Mollis Wilson Andrew H. Owens of Memphis for Appellees, William R.
Lilley and William Lucy, d/b/a Big Bear Towing

Judge: CRAWFORD

First Paragraph:

This case arises out of an automobile accident.  Appellant appeals
from a Judgment entered on a jury verdict.  The jury found the two
Defendants to each be 50% at fault and Plaintiff to be 0% at fault. 
The jury awarded $0 damages to the Plaintiff.  We find that the trial
court did not err in its duty as thirteenth juror and that there is
material evidence to support the verdict.  We affirm.

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

WOODROW JERRY HAWKINS v. CASE MANAGEMENT INCORPORATED, ET AL.

Court:TCA

Attorneys:                          

Woodrow J. Hawkins, Pro Se

Cheryl M. Hearn, Memphis, For Appellees, Case Management Incorporated
and Rosaline McGee

Judge: CRAWFORD

First Paragraph:

This is an appeal from the trial court's grant of
Defendants/Appellees' motion for summary judgment.  Under T.C.A.
S40-38-108, the trial court found that Defendants/Appellees were
immune from prosecution for their alleged failure to properly inform
Plaintiff/Appellant of his possible right to recover from the
Tennessee Criminal Injury Compensation Fund.  We affirm.

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

STATE OF TENNESSEE, EX REL., ASHLEY MITCHELL v. PATRICK D. ARMSTRONG

Court:TCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter, and Stuart F.
Wilson-Patton, Senior Counsel for the Office of the Attorney General,
for the appellant State of Tennessee.

Patrick D. Armstrong, pro se.

Judge: KIRBY

First Paragraph:

This is a Title IV child support case.  The mother established
paternity against the father in juvenile court,  and the father was
ordered to pay child support.  Prior to establishing the father's
paternity, the mother had intermittently received public assistance. 
Consequently, the father was to send the child support payments to the
State's collection and disbursement unit, pursuant to Title IV,
chapter D of the Social Security Act.  The father failed to pay the
required child support.  The State then intervened by filing a
petition for contempt against the father.  In the contempt hearing,
the mother asked that the father's child support obligation be
terminated.  The trial court suspended the father's obligation to pay
current child support in a set amount through the State disbursement
unit, with the understanding that the father would pay child support
in an undetermined amount directly to the mother, pursuant to an
unwritten private agreement between the mother and the father.  The
father was required to make payments to the State on his past
arrearages.  The State appealed.  We reverse and remand, holding that
the trial court was required to have the child support payments, in a
set amount that comports with the child support guidelines, sent to
the State collection and disbursement unit, and remand for
modification of the amount paid on the father's arrearages.

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

ONE COMMERCE SQUARE, LLC v. AUSA LIFE INSURANCE COMPANY, INC.

Court:TCA

Attorneys:                          

Henry C. Shelton and Amy M. Pepke of Memphis for Appellant, One
Commerce Square, LLC

Henry L. Klein and Bruce M. Smith of Memphis for Appellee, AUSA Life
Insurance Company, Inc.

Judge: CRAWFORD
 
First Paragraph:

Appellant purchaser of commercial building sued appellee seller to
recover payment of a tenant improvement allowance made by the appellee
to a tenant pursuant to a lease agreement assigned to the purchaser as
part of the transaction.  The trial court granted appellee seller
summary judgment based upon a construction of the terms of the
assignment transferring the lease to the purchaser.  Appellant
purchaser appeals.  We affirm.

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

BENJAMIN S. PRESSNELL, ET AL. v. STEVE HIXON, ET AL.

Court:TCA

Attorneys:                          

Carl R. Ogle, Jr., Jefferson City, Tennessee, for the appellants,
Steve Hixon and wife, Betty Hixon.

Michael G. Hatmaker, Jacksboro, Tennessee, for the appellees, Benjamin
S. Pressnell and Rhandie L. Parker.

Judge: SUSANO

First Paragraph:

This case essentially involves a dispute between the owners of
adjoining properties in Grainger County.  Specifically, the dispute
focuses on (1) the ownership of a private road ("the disputed private
road"); (2) the easement rights, if any, of the plaintiff Benjamin S.
Pressnell with respect to a right-of-way over the property of the
defendants Steve Hixon and wife, Betty Hixon; and (3) damages
allegedly sustained by Pressnell and another plaintiff by virtue of
the Hixons' interference with Pressnell's right to use the disputed
private road and the easement.  The trial court, following a bench
trial, found the issues in favor of the plaintiffs.  The defendants
appeal.  We affirm.

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

DANNY SILSBE v. HOUSTON LEVEE INDUSTRIAL PARK, LLC

Court:TCA

Attorneys:                          

John L. Ryder, Memphis, for the appellant, Danny Silsbe.

John D. Horne, Memphis, for the appellee, Houston Levee Industrial
Park, LLC.

Judge: KIRBY

First Paragraph:

This is a contract case.  On December 21, 2001, the parties entered
into a contract granting the plaintiff an option to purchase real
property.  The plaintiff was required to exercise his option by 5:00
p.m., January 21, 2002, either by delivering written notice by that
date to the defendant corporation, or by mailing written notification,
postmarked no later than January 21, 2002.  At the time the contract
was executed, the parties were unaware that January 21 was a national
holiday recognizing Martin Luther King, Jr.  On January 21, 2002, the
plaintiff attempted to hand-deliver written notification of his intent
to exercise the option, found no one at the defendant's office at the
time and mistakenly assumed the office was closed because of the
holiday.  On January 22, the plaintiff hand-delivered written notice
to the defendant.  The defendant maintained that the option had
expired.  The plaintiff filed this lawsuit, seeking a declaratory
judgment that the January 22 notice was timely and that the defendant
was obligated to sell him the property pursuant to the option
contract.  After a trial, the trial court held in favor of the
defendant, finding that the option had expired.  The plaintiff
appeals, arguing impossibility of performance and mutual mistake.  We
affirm, finding that the trial court did not err in concluding that
the doctrines of impossibility of performance and mutuality of mistake
are not applicable.

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

DARRELL TAYLOR v. ALLSTATE INSURANCE COMPANY

Court:TCA

Attorneys:                          

Darrell Taylor, appellant, pro se.

Howard B. Hayden, Memphis, Tennessee, for the appellee, Allstate
Insurance Company.

Judge: KIRBY

First Paragraph:

This is an action to collect on a homeowner's insurance policy.  The
roof and attic of the plaintiff's home sustained about $9,800 in
damages.  The plaintiff filed a claim on the homeowner's insurance
policy he had purchased from the defendant insurance company.  The
claim was denied.  The plaintiff filed the instant lawsuit to recover
the insurance proceeds.  After the plaintiff presented his proof, the
trial court entered a judgment in favor of the insurance company.  The
plaintiff now appeals.  Based on the sparse record on appeal, we
affirm.

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

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