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Court: TCA


John M. Neal, Knoxville, Tennessee, for the appellant Cincinnati Insurance Company.

D. Andrew Saulters, Deron H. Brown, Nashville, Tennessee, for the appellee, Mid-South Drillers Supply, Inc.

C. Bradford Marsh, J. Christopher Fox, II, Atlanta, Georgia; Elizabeth Lane Guenther, Russell B. Morgan, Nashville, Tennessee, for the appellee, Eaton Aeroquip, Inc.


The issue presented by this appeal is whether a trial court may exercise its discretion granted under rules 34 and 37 of the Tennessee Rules of Civil Procedure to dismiss a party's case for spoliation of evidence where the spoliation may have been inadvertent rather than intentional. We hold that the trial court has the discretion to sanction a party by dismissal of its case where the party's destruction of evidence severely prejudices an adverse party's defense irrespective of whether the destruction was inadvertent or intentional. We accordingly affirm the trial court judgement.


Court: TCA


Carlton Clark, Tiptonville, Tennessee, appellant, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Joshua D. Baker, Assistant Attorney General, Civil Rights and Claims Division, Office of the Attorney General, Nashville, Tennessee, for the appellee, Tennessee Board of Probation and Paroles.


The petitioner, Carlton Clark ("Prisoner"), is serving an eight-year prison sentence for drug possession. He appeals the decision of the Tennessee Board of Probation and Paroles ("Parole Board" or "Board") denying him parole, arguing that the Board's decision was wrongfully based solely upon the "seriousness of [his] offense," and further that the Board wrongfully rescheduled his next parole hearing for three years after the initial hearing, rather than one year. The state argues that the courts lack jurisdiction over Prisoner's appeal because the initial filing, on the very expiration date of the 60-day statutory deadline, was not verified by an affidavit, and, therefore, the trial court never acquired jurisdiction and the Parole Board's ruling became final. The trial court agreed with the state and dismissed the case with prejudice. We affirm.


Court: TCA


Mathew R. Zenner and Donald Capparella, Nashville, Tennessee, for the appellant, Foster Business Park, LLC.

Sam J. McAllester, III, and William J. Haynes, III, for the appellee, J & B Investments, LLC.

Roger G. Jones and Austin L. McMullen, Nashville, Tennessee, for the appellee, The Bank of Nashville.


The plaintiff, a debtor under a promissory note, brought this action against two defendants, the bank that issued a promissory note to the plaintiff and the holder of the note for charging and attempting to collect a rate of interest the plaintiff contends was usurious. In the Complaint, the plaintiff contends that two defendants engaged in unconscionable conduct under Tenn. Code Ann. section 47-14- 117(c) and unfair and deceptive practices in violation of the Tennessee Consumer Protection Act. The bank's conduct at issue pertains to its issuance of a promissory note to Foster that contained a default rate of interest of 24 percent, which the plaintiff contends is usurious. The conduct of the other defendant, the holder of the note, pertains to its attempts to collect the default rate of interest. The Chancellor dismissed the plaintiff's complaint upon the defendants' Tenn. R. Civ. P. 12.02(6) motions to dismiss, concluding that the interest was not usurious, and therefore, the complaint failed to state a claim upon which relief could be granted. We affirm.


Court: TCA


Gary C. Shockley and Courtney H. Gilmer, Nashville, Tennessee, for the appellant, H&R Block Eastern Tax Services, Inc.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Sarah Ann Hiestand, Senior Counsel, Financial Division, Office of the Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Commerce and Insurance, Division of Insurance.


This case presents a pure and novel question of law regarding the Tennessee statutory definition of insurance. At issue is the "Peace of Mind" program ("POM program") offered by H&R Block Eastern Tax Services, Inc. ("Block") to customers who hire Block to prepare their tax returns. Essentially, Block offers its customers the option of purchasing, for an additional fee, an enhanced version of Block's basic guarantee of the accuracy of its tax-preparation services. Block promises customers who purchase the POM program that, in the event Block makes an error which results in the customer's tax liability being initially underestimated, Block will pay up to $5,000 of the customer's newly revealed tax liability. The Tennessee Department of Commerce and Insurance ("the State") contends - and the Commissioner of that department declared - that the POM program is a contract of insurance under T.C.A. section 56-7-101 as it was written when this case began, and, therefore, Block is subject to various penalties under that statute because it was not licensed to sell insurance. The trial court upheld the Commissioner's ruling. We disagree with both the Commissioner and the trial court, and find that the POM program is not properly characterized as insurance under the statute. Accordingly, we reverse.

With Dissenting Opinion

Court: TCCA


Barry H. Valentine, Newport, Tennessee, for the Appellant, Karl Daniel Forss.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; James B. Dunn and Amanda H. Inman, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Karl Daniel Forss, appeals the sentencing decision of the Cocke County Circuit Court. Under the terms of a plea agreement, Forss entered "open" pleas of guilty to the offenses of attempted aggravated robbery, aggravated assault, and aggravated criminal trespass. The plea agreement provided that the length and manner of the sentences would be determined by the trial court, that Forss would be sentenced as a Range I, standard offender, that the aggravated assault conviction would merge with the attempted aggravated robbery conviction, and that the misdemeanor sentence for the aggravated criminal trespass conviction would run concurrently with the attempted aggravated robbery conviction. Following the sentencing hearing, the trial court imposed an effective sentence of six years in confinement. Forss now appeals the length and manner of his six-year felony sentence. After a thorough review of the record and the arguments of the parties, we modify Forss' six-year sentence for attempted aggravated robbery to reflect a sentence of four years. We affirm the denial of alternative sentencing. We remand to the trial court for entry of an amended judgment to reflect this sentencing modification.

THOMAS dissenting

Conflict of Interest: Health Care Network Arrangement

TN Attorney General Opinions

Date: 2008-01-31

Opinion Number: 08-15


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