Opinion FlashSeptember 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):
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Howard H. Vogel
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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