Opinion Flash

November 07, 2003
Volume 9 — Number 205

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):
02 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
02 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


RANDY ARNWINE v. UNION COUNTY BOARD OF EDUCATION, ET AL.

Court:TSC

Attorneys:                          

Lynn Tarpy and Thomas M. Leveille, Knoxville, Tennessee, for the
appellant, Randy Arnwine.

Jenny Coques Rogers and John C. Duffy, Knoxville, Tennessee, and
Charles W. Cagle, Nashville, Tennessee, for the appellees, Union
County Board of Education and David F. Coppock.

Judge: BIRCH

First Paragraph:

We granted permission to appeal in this case to determine whether the
Union County Board of Education had authority to enter into a
four-year employment contract with an assistant superintendent.  The
trial court found that the parties' four-year contract was valid.  The
Court of Appeals reversed the trial court's decision, concluding that
no statutory authority existed for the Union County Board of Education
to enter into a multi-year employment contract with an assistant
superintendent.  We affirm the decision of the Court of Appeals.

http://www.tba.org/tba_files/TSC/arnwinerandy.wpd

PEGGY GASTON v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY

Court:TSC

Attorneys:                          

H. Chris Trew, Athens, Tennessee, for the Appellant, Tennessee Farmers
Mutual Insurance Company.

Larry B. Nolen, Athens, Tennessee, for the Appellee, Peggy Gaston.

Judge: ANDERSON

First Paragraph:

We granted review to decide whether there was sufficient evidence to
require a jury to determine whether the insurer waived compliance with
insurance policy provisions requiring the insurer's consent to a
third-party settlement by its insured.  After the insurance company
denied her claim, the insured filed a complaint alleging breach of
contract, violation of the Tennessee Consumer Protection Act, and bad
faith.  The trial court directed a verdict for the insurance company,
finding that the insured failed to comply with the subrogation
provisions of her policy and that the insurance company did not waive
these provisions.  The Court of Appeals reversed.  After reviewing the
record and applicable authority, we agree with the Court of Appeals
that there was evidence from which a reasonable jury could find that
the insurance company waived the subrogation provisions.  We also
conclude that the insured was not required to demonstrate that the
insurance company had not been prejudiced and that the trial court
improperly directed verdicts on the insured's claims under the
Tennessee Consumer Protection Act and the bad faith statute.  We
therefore affirm the Court of Appeals' judgment and remand to the
trial court for a new trial.

http://www.tba.org/tba_files/TSC/gastonp.wpd

STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. BERNADETTE
BERNICE CLARK, ET AL.

Court:TCA

Attorneys:                          

Jason C. Scott, Trenton, For Appellant, Bernadette Bernice Clark

Paul G. Summers, Attorney General and Reporter; Pamela A. Hayden-Wood,
Nashville, For Appellee, Tennessee Department of Children's Services

Judge: CRAWFORD

First Paragraph:

This is a termination of parental rights case.  The mother appeals
from the order of the Juvenile Court of Gibson County, terminating her
parental rights.  Specifically, the mother asserts that the grounds
cited for termination are not supported by clear and convincing
evidence in the record.  Because we find clear and convincing evidence
in the record to support the trial court's findings, we affirm.

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

JOHN WAYNE GOODMAN v. CITY OF SAVANNAH and SAVANNAH BOARD OF
COMMISSIONERS

Court:TCA

Attorneys:                          

David M. Sullivan, Memphis, Tennessee, for appellant, John Wayne
Goodman.

John C. Duffy, Knoxville, Tennessee, and James A. Hopper, Savannah,
Tennessee, for appellees, City of Savannah and Savannah Board of
Commissioners.

Judge: KIRBY

First Paragraph:

This is an age discrimination case involving a mandatory retirement
policy.  A firefighter employed by the defendant municipality was
forced to retire at age sixty-two pursuant to the municipality's
mandatory retirement policy.  The firefighter then filed this lawsuit
against the municipality, asserting that the mandatory retirement
policy violates the Tennessee Human Rights Act by discriminating
against him based on his age.  The trial court granted summary
judgment in favor of the municipality.  The firefighter appeals.  We
affirm, finding that Tennessee Code Annotated section 8-36-205
authorizes the municipality to adopt a mandatory retirement policy
without being required to establish age as a bona fide occupational
qualification.

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

IN RE: C.L.J.

Court:TCA

Attorneys:                          

Kelli Barr Summers, Brentwood, Tennessee, for the appellant.

J. L. Thompson, III, Nashville, Tennessee, for the appellees.

Judge: KOCH

First Paragraph:

This appeal involves a dispute over the custody of an eight-year-old
boy.  The child's parents never married and engaged in a protracted,
bitter custody dispute until the father died of cancer in 2003. 
Immediately after the father's death, his sister and brother-in-law
filed a petition in the Davidson County Juvenile Court seeking custody
of the child.  The child's mother opposed the petition, asserting that
her custodial rights were superior to those of the boy's aunt and
uncle.  The juvenile court granted temporary custody of the child to
his aunt and uncle pending a hearing.  The court also determined that
the child's mother could not gain custody of her son unless she proved
that she would be able to adequately fulfill her parenting
responsibilities.  The juvenile court granted the mother's request for
an interlocutory appeal, and this court granted the petition to
determine whether the juvenile court applied the correct legal
standard for custody disputes between a biological parent and
non-parents.  We have determined that the juvenile court has not
employed the correct standard in this case and that the child's mother
is entitled to have custody of her son unless the trial court
determines that returning the child to his mother will expose him to a
risk of substantial harm.

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

GWENDOLYN JACKSON, ET AL. v. ZODIE HAMILTON, ET AL.

Court:TCA

Attorneys:                          

Stanley H. Less, Memphis, TN, for Appellants

John D. Richardson, Teresa A. Boyd, Memphis, TN, for Appellees

Judge: HIGHERS

First Paragraph:

This action arises out of an automobile accident, and Plaintiffs'
claimed damages of lost wages, loss of consortium, medical expenses,
and pain and suffering.  The case was tried before a jury, who found
in favor of the Plaintiffs and awarded one of the Plaintiffs $600. 
Plaintiffs appeal the verdict, and this Court reverses and remands the
case for a new trial.

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

DENNIS JOSLIN COMPANY, LLC, as assignee of FIRST AMERICAN NATIONAL
BANK, JACKSON v. WILLIAM L. JOHNSON

Court:TCA

Attorneys:                          

W. Lewis Jenkins, Jr., Dyersburg, TN, for Appellant

R. Scott Pietrowski, Jackson, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This appeal arises from the order of the lower court denying Joslin's
request for a deficiency judgment against Johnson.  Joslin based its
request upon a December 13, 1990 order of the Chancery Court of
Madison County, Tennessee that obligated Johnson to repay a debt to
FANB, Joslin's predecessor in interest.  The lower court denied
Joslin's prayer for relief, and discharged Johnson's obligation to
satisfy the prior judgment, for two reasons.  First, the lower court
based its judgment on the failure of FANB to dispose of Johnson's
collateral in a commercially reasonable manner.  Second, the trial
court found that the doctrine of laches bars Joslin's claim.  For the
following reasons, we affirm the ruling of the lower court.

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

LESLIE ANN ROBINSON v. WILLIAM L. FULLITON AND VALERIE T. CORDER

Court:TCA

Attorneys:                          

James R. Garts, Jr., and Shannon E. Holbrook, Memphis, Tennessee, for
the appellant, Valerie T. Corder.

Mimi Phillips, Memphis, Tennessee, for the appellant, William L.
Fulliton.

Ronald Krelstein and Rebecca Miller, Memphis, Tennessee, for the
appellee, Leslie Ann Robinson.

Judge: KIRBY

First Paragraph:

This case involves the trial court's refusal to expunge the records of
a criminal contempt proceeding.  In the underlying divorce action, the
wife moved for criminal contempt sanctions against the husband's
attorney.  The trial court assigned a special prosecutor to
investigate the criminal contempt charges against the attorney.  The
special prosecutor later determined that there was insufficient
evidence of contempt.  The attorney thereafter requested that the
trial court expunge the public records relating to the charge of
criminal contempt under the expungement statute, Tennessee Code
Annotated S 40-32-101(a)(1).  The trial court denied the attorney's
request, concluding that the statute did not apply to a criminal
contempt proceeding within the meaning of the statute.  The attorney
now appeals.  Although the rules of appellate procedure do not provide
for the attorney to appeal the trial court's decision relating to
expungement, the appeal will be treated as a petition for a writ of
certiorari.  We now grant the writ and reverse the trial court's
decision, concluding that the expungement statute applies insofar as
the contempt charges were criminal in nature.

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

TOYOTA MOTOR CREDIT CORPORATION v. STATE OF TENNESSEE DEPARTMENT OF SAFETY

Court:TCA

Attorneys:                          

Paul G. Summers, Attorney General, and Richard H. Dunavant, Assistant
Attorney General, Nashville, Tennessee, for the appellant, State of
Tennessee Department of Safety.

Randall J. Spivey, Nashville, Tennessee, for the appellee, Toyota
Motor Credit Corporation.

Judge: GLENN

First Paragraph:

This case involves the seizure and forfeiture of a leased vehicle. 
The Department of Safety ("the Department") sent a notice of the
forfeiture proceedings to the corporate owner/lessor at the address
listed on the vehicle's certificate of title.  Because the owner had
moved two years previously and the Postal Service had ceased
forwarding its mail, the unopened certified letter was returned to the
Department marked "Not Deliverable as Addressed Unable to Forward." 
The Department took no further steps to locate the owner and summarily
ordered the forfeiture of the vehicle.  Upon learning of the
forfeiture, the owner filed a petition for a stay and reconsideration,
which the Department denied.  The owner then filed a petition for
review in the Chancery Court of Davidson County in which it challenged
the adequacy of the notice procedure.  The trial court ruled the
notice procedure did not meet constitutional due process requirements
under the circumstances, in which the corporate owner had a registered
agent for service of process whose name and address were easily
obtainable through the Secretary of State's Office.  The Department
appeals, arguing that due process does not require that it seek out a
corporate owner that has failed to notify the Department of its change
of address, as required by Tennessee Code Annotated section 55-4-131. 
We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. CARLOS GREEN

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender; and Garland Ergueden,
Cathy A. Hailey, and Michael J. Johnson, Assistant Public Defenders,
for the appellant, Carlos Green.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Kim Kea  Harris and Jerry R. Kitchen, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant was found guilty of first degree premeditated murder and
sentenced to life imprisonment.  The defendant now appeals contending
that (1) the trial court erred by allowing the defendant's impeachment
with inadmissible evidence, and (2) he was denied a fundamentally fair
trial because of improper questions and argument by the prosecution. 
We hold that (1) the defendant's impeachment was improper, however,
the error was harmless, and (2) the State's questions and argument
were not  improper, and even if they were improper, they did not rise
to the level of plain error.

http://www.tba.org/tba_files/TCCA/greenc.wpd

STATE OF TENNESSEE v. TERRANCE HEARD

Court:TCCA

Attorneys:                          

C. Anne Tipton, Memphis, Tennessee, for the appellant, Terrance Heard.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; J. Ross Dyer, Assistant Attorney General; William
L. Gibbons, District Attorney General; Terry Harris, Assistant

Judge: WEDEMEYER

First Paragraph:

A Shelby County Grand Jury indicted the Defendant, Terrance Heard,
along with fourteen other members of the "Gangster Disciples" street
gang, for first degree premeditated murder, murder in the perpetration
of a kidnapping, murder in the perpetration of a robbery, and
especially aggravated kidnapping after two men were kidnapped and
beaten by the gang, leaving one victim dead.  A Shelby County jury
convicted the Defendant of first degree premeditated murder, murder in
the perpetration of a kidnapping, and two counts of especially
aggravated kidnapping, and the trial court merged the murder
convictions, imposed a life sentence with the possibility of parole
for the murder conviction and twenty-five years for each count of
especially aggravated kidnapping, and ordered all the sentences to run
consecutively.  The Defendant now appeals, contending the following:
(1) that the trial court erred by denying the Defendant's motion to
suppress the pre-trial identification of the Defendant made by a
witness and by limiting cross-examination of the witness regarding
this identification; (2) that the assistant district attorney
improperly commented on the state of mind of the victim and a
co-defendant during his opening statement to the prejudice of the
Defendant; (3) that the trial court erred by allowing a witness to
testify as to the victim's state of mind just prior to his murder
concerning the Gangster Disciples; (4) that the trial court erred by
denying the Defendant's request for a special jury instruction
addressing the theories of duress and mere presence; and (5) that the
evidence presented at trial was insufficient for a rational trier of
fact to find the Defendant guilty beyond a reasonable doubt.  We find
no reversible error and conclude that sufficient evidence exists in
the record to support the Defendant's convictions.  Accordingly, we
affirm the trial court's judgments.

http://www.tba.org/tba_files/TCCA/heardt.wpd

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