OSHA: Most Frequently Cited Standards of 2010

The following were the top 10 most frequently cited standards in fiscal year 2010 (October 1, 2009 through September 30, 2010):

1. Scaffolding, general requirements, construction (29 CFR 1926.451)
2. Fall protection, construction (29 CFR 1926.501) 
3. Hazard communication standard, general industry (29 CFR 1910.1200) 
4. Ladders, construction (29 CFR 1926.1053) 
5. Respiratory protection, general industry (29 CFR 1910.134) 
6. Control of hazardous energy (lockout/tagout), general industry (29 CFR 1910.147) 
7. Electrical, wiring methods, components and equipment, general industry (29 CFR 1910.305) 
8. Powered industrial trucks, general industry (29 CFR 1910.178)
9. Electrical systems design, general requirements, general industry (29 CFR 1910.303) 
10. Machines, general requirements, general industry (29 CFR 1910.212) 

The following are the standards for which OSHA assessed the highest penalties in fiscal year 2010 (October 1, 2009 through September 30, 2010):

1. Fall protection, construction (29 CFR 1926.501) 
2. Electrical, general requirements, construction (29 CFR 1926.403)
3. Safety training and education, construction (29 CFR 1910.21) 
4. Control of hazardous energy (lockout/tagout), general industry (29 CFR 1910.147)
5. Machines, general requirements, general industry (29 CFR 1910.212)
6. General duty clause (Section 5(a)(1) of the OSH Act)
7. Excavations, requirements for protective systems, construction (29 CFR 1926.652)
8. Lead, general industry (29 CFR 1910.1025)
9. Grain handling facilities (29 CFR 1910.272)
10. Ladders, construction (29 CFR 1926.1053)

For more detailed information, visit Frequently Cited OSHA Standards. At that site, you can generate a report on the most frequently cited federal or state OSHA standards by your SIC code and the number of employees in your establishment.

Article located at:  http://www.osha.gov/dcsp/compliance_assistance/frequent_standards.html

Court Reviews a Judgment in Favor of a Bank against Defaulting Borrowers

GREENBANK, F/K/A GREENE COUNTY BANK v. BARBARA J. THOMPSON, ET AL. (Tenn. Ct. App. December 29, 2010)

Bank provided a loan to Borrowers for the purchase of real property and construction of a log cabin home. After Borrowers defaulted on the loan, Bank sold the property at a foreclosure sale.

Bank then initiated a lawsuit alleging conversion, negligent business representation, and promissory fraud. Bank also sought a deficiency judgment for the difference in the amount owed on the loan and the foreclosure sale price. After a bench trial, the trial court awarded a judgment for $61,782.12 and a deficiency judgment for $300,644.92 in favor of Bank. Borrowers appeal. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/greenbank_122910.pdf

Court Reviews Whether the Trial Court Properly Held Home Inspectors Individually Liable in a Negligence Case

JOHN GALLON, ET AL. v. HARRY ELBERSON, ET AL. (Tenn. Ct. App. December 1, 2010)

The plaintiff home buyers filed suit against two home inspectors and a home inspection company after discovering defects in the home that were not mentioned in the inspection report. The court found that the defendants were negligent and granted the plaintiffs a judgment for damages against the home inspectors and the inspection company, individually, jointly and severally.

The defendants argue on appeal that the judgment was not supported by the evidence and that in holding them individually liable, the court pierced the corporate veil without the proof of the extraordinary circumstances normally required for a court to do so.

We affirm the finding of liability and the judgment for damages, but we vacate the judgment as to one of the individual defendants, because the evidence preponderated against the trial court's finding that he was in partnership with the other individual defendant.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/gallonj_120110.pdf

Court Reviews Whether a Construction Company is Entitled to a Modification of the Incentive Provision of a Contract with TDOT

RAY BELL CONSTRUCTION CO., INC. v. STATE OF TENNESSEE, TENNESSEE DEPARTMENT OF TRANSPORTATION (Tenn. Ct. App. November 29, 2010)

This case concerns an alleged breach of contract involving the incentive clause of a Tennessee Department of Transportation ("TDOT") road construction contract. Before the Claims Commission, TDOT argued that the contract language was clear in prohibiting an extension, alteration, or amendment of the incentive clause.

The Claims Commission agreed with the position of Ray Bell Construction Company ("RBCC") that it was entitled to a modification of the incentive provision. To so find, the Commission held that "a definite latent ambiguity exists for which parol evidence not only is admissible, but frankly, absolutely necessary in both understanding and deciding the issues in this case." TDOT has appealed. We affirm the decision of the Claims Commission.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/raybell_112910.pdf

SWINEY, Dissenting:
http://www.tba2.org/tba_files/TCA/2010/raybell_DIS_112910.pdf

Court Reviews Whether a Quantum Meruit Award and the Denial of an Offset was proper in a case between a Construction Company and a Demolition Subcontractor

DILLARD CONSTRUCTION, INC. v. HAVRON CONTRACTING CORP. ET AL. (Tenn. Ct. App. November 23, 2010)

The only parties left litigating in what started out as a complex construction dispute are, on one side, Dillard Construction, Inc , and, on the other, Dillard's demolition subcontractor, Havron Contracting Corp. After a bench trial and several post-trial motions, the court held that:

(1) Dillard, while not having a contract with Havron, was required by quantum meruit to pay Havron $91,100 for work performed by Havron's subcontractors;
(2) Dillard was not entitled to an offset against that judgment for damage done to electrical equipment by Havron's subcontractor;
(3) Havron was entitled to recover from Dillard, under a "passthrough" indemnity theory, the attorney's fees awarded against Havron and in favor of its subcontractor; and
(4) Havron was not entitled to recover the attorney's fees that it, Havron, incurred in defending against the claims of its subcontractor.

Dillard appeals challenging both the quantum meruit award and the denial of an offset. Havron challenges the trial court's denial of indemnification for attorney's fees Havron incurred in defending the claims of its subcontractor. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/dillardconstruction_112310.pdf

Court Reviews Damages Owed in a Defective Driveway Case

EARL FAULKNER, ET AL. v. TOM EMMETT CONSTRUCTION COMPANY (Tenn. Ct. App November 18, 2010)

Earl and Faye Faulkner ("Plaintiffs") hired Tom Emmett Construction Company ("Defendant") to construct a new driveway at their home in Knox County. Plaintiffs refused to pay $8,000 of the total $18,000 contract price because they were dissatisfied with the workmanship of the driveway.

Plaintiffs sued Defendants seeking as damages what it would cost to remove and replace the allegedly defective driveway. Defendant asserted that the driveway was properly constructed and filed a counterclaim for the remaining $8,000 balance owed on the oral contract.

Following a bench trial, the Trial Court concluded that any problems with the driveway were not sufficient to require that it be removed and replaced. Because there was a problem with how the concrete on one portion of the driveway had been poured, the Trial Court required Plaintiffs to pay Defendant only $5,000 of the remaining $8,000 owed on the contract. Plaintiffs appeal. We affirm as modified.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/faulknere_111810.pdf

Court Reviews a Construction Financing Case between Financier and Property Owner

WADE PHELPS/PHELPS HARRINGTON CONSTRUCTION CO., INC. v. C & C CONSTRUCTION CO., LLC, ET AL. (Tenn. Ct. App. November 10, 2010)

Contractor agreed to build duplex for property owner, with plaintiff providing construction financing. At closing, contractor was paid, but contractor did not pay plaintiff as agreed. Plaintiff sued property owner, contractor, and bank.

We previously affirmed the trial court's grant of summary judgment to the bank, finding that contractor and plaintiff were in a joint venture, such that payment to contractor was payment to plaintiff.

Property owner then moved for summary judgment, which the trial court granted. Because we find no separate agreement between property owner and plaintiff requiring repayment directly to plaintiff, plaintiff's cause of action against property owner is precluded, and the trial court's grant of summary judgment is affirmed.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/wadephelps_111010.pdf

Court Reviews Whether Purchaser of Recently-Foreclosed Property has Standing to Bring a Suit Against Property’s Sellers

PROVIDENCE CROSSINGS, LLC v. SC REALTY CAPITAL, L.P., SC CAPITAL, LLC, AND SMITH REALTY INTERESTS, L.P. (Tenn. Ct. App. November 3, 2010)

Purchaser of landlocked property brought action against the sellers, seeking to recover damages allegedly caused by the failure of the sellers to complete a road extension or otherwise to insure reasonable access to the property, which had been purchased for development of multi-family rental units.

The trial court granted summary judgment to the sellers, finding that the right of the purchaser to proceed with the action was extinguished when the bank that provided financing for the development of the property foreclosed on the loan secured by the property and subsequently sold the property to another entity. The court concluded that the purchaser did not have standing to pursue the claims.

Finding that a genuine issue of material fact exists as to whether the purchaser's cause of action was included in the assets foreclosed upon, we reverse the judgment of the trial court and remand for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/providencecrossings_110310.pdf

CLEMENT concurring in the judgement
http://www.tba2.org/tba_files/TCA/2010/providencecrossings_CON_110310.pdf

Court Reviews a Contractor’s Mistake in Making a Construction Bid

PRESTIGE LAND COMPANY v. BRIAN MULLINS EXCAVATING CONTRACTORS, INC. (Tenn. Ct. App. October 29, 2010)

Prestige Land Company ("Developer") owned land upon which it intended to build a commercial shopping center. An estimate to complete the project was obtained. Thereafter, the project was opened up for bidding. Brian Mullins Excavating Contractors, Inc. ("Contractor") bid on the project. Although Contractor's bid was significantly lower than the next lowest bid, it was only 10% lower than the estimated costs of construction. Contractor was unaware that it had made a unilateral mistake in its bid. Contractor was awarded the project. Eventually, Contractor was unable to complete the project because it ran out of money due to its unilateral bidding mistake.

Developer sued for breach of contract, and Contractor filed a counterclaim for fraud and other claims. The Trial Court awarded Contractor a judgment for $101,357.05. Finding no clear and convincing evidence of fraud by Developer, we vacate the judgment for Contractor and enter a judgment for Developer in the amount of $128,326.56.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/prestigeland_102910.pdf

Court Reviews Whether Defendant Signed A Credit Application in His Personal Capacity

84 LUMBER COMPANY v. R. BRYAN SMITH, ET AL. (Tenn. Ct. App. October 28, 2010)

84 Lumber Company ("84 Lumber") sued R. Bryan Smith ("Smith") and Allstates Building Systems, LLC ("Allstates") for a balance owed on an open account. Both sides filed motions for summary judgment. The Circuit Court granted 84 Lumber summary judgment, and entered a judgment against Smith and Allstates in the amount of $27,611.31 plus attorney's fees and costs in the amount of $6,500.00. Smith appeals to this Court.

We find that Smith did not sign the credit application in his personal capacity and, therefore, did not guarantee Allstates' debt. We reverse the grant of summary judgment against Smith, and grant summary judgment to Smith. We affirm the grant of summary judgment against Allstates.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/84lumber_102810.pdf

SUSANO, concurring in part and dissenting in part:
http://www.tba2.org/tba_files/TCA/2010/84lumber_CON_102810.pdf

TN Supreme Court Reviews Whether an Appraisal can Form the Basis of a Fraudulent Misrepresentation Claim

JOSEPH DAVIS ET AL. v. PATRICK J. McGUIGAN ET AL. (Tenn. October 26, 2010)

This appeal arises from a trial court's grant of summary judgment in an action against a real estate appraiser for fraudulent misrepresentation and for violation of the Tennessee Consumer Protection Act. A husband and wife alleged that the appraiser, who was hired by the bank financing the husband and wife's home construction, recklessly overestimated the value of their proposed construction and that they reasonably relied on the appraisal value to their detriment.

The Court of Appeals affirmed the trial court's ruling, holding that an appraisal is an opinion that cannot form the basis for a fraudulent misrepresentation claim. We hold that an opinion can form the basis of a fraudulent misrepresentation claim. We further hold that genuine issues of material fact preclude summary judgment as to the husband and wife's claims against the appraiser. We reverse the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/davisj_102610.pdf

KOCH and CLARK, dissenting:
http://www.tba2.org/tba_files/TSC/2010/davisj_DIS_102610.pdf

Court Reviews Summary Judgment Ruling in a Case Between a Home Purchaser and a Licensed Contractor

NATALIE HAGAN v. MICHAEL PHIPPS ET AL. (Tenn. Ct. App. September 29, 2010)

This appeal involves claims by a home purchaser against a licensed contractor and a business associate of the unlicensed builder who built the home in question and sold it to the plaintiff. The trial court granted the contractor defendant's motion for summary judgment on all claims against him based upon its conclusions that the unlicensed builder was not the agent of the licensed contractor and that there was no predicate tort for civil conspiracy because the builder intended to use the house for his personal residence. Because we find that there are issues of material fact that must be resolved, we reverse the trial court's grant of summary judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hagann_092910.pdf

Court Reviews Priority Issues in a Case Involving Lien Enforcement

EAST TENNESSEE GRADING, INC., v. BANK OF AMERICA, N.A., et al. (Tenn. Ct. App. September 28, 2010)

Plaintiff brought this action to enforce a lien for excavation and road work done in a residential development, because the owner had not paid for the construction work performed. An agreed judgment was entered as to plaintiff's claims against defendant, Seven Lakes Development, awarding judgment against that defendant for materials and labor performed on the property. One parcel of property, however, totaling 6.36 acres was owned by defendants Coughlins, which was subject to a deed of trust in favor of Bank of America. The Trial Court held that Bank of America had priority over plaintiff as to 1.9 acres because plaintiff had not filed its Notice of Lien timely to maintain priority over the subsequent owners pursuant to Tenn. Code Ann. section 66-11-112. The Trial Court also held that plaintiff had priority over Bank of America as to 4.46 acres because plaintiff's Notice of Lien was filed before the Amended Deed of Trust in favor of Bank of America was filed. On appeal, we affirm the Judgment of the Trial Court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/easttenngrading_092810.pdf

Court Reviews the Enforceability of a Materialman's Lien

CENTURY FIRE PROTECTION, LLC., v. FOWLERS' HOLDINGS, LLLP., et al. (Tenn. Ct. App. September 16, 2010)

Plaintiff alleged that it delivered materials and provided labor for the installation of a fire protection system on the property of defendant and defendant had failed to pay money still owed under the contract. Plaintiff sought a materialmen's lien to enforce any judgment obtained against defendant for the amount of monies owed under the contract. Defendants answered, filed a counter-complaint and raised multiple defenses. The Trial Court conducted an evidentiary hearing and ruled in plaintiff's favor, holding that plaintiff was entitled to recover monetary damages and the materialmen's lien would be enforced. Defendants have appealed and we affirm the Judgment of the Trial Court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/centuryfire_091610.pdf

Court reviews directed verdict order in a case about a leaky building

E & J CONSTRUCTION COMPANY v. LIBERTY BUILDING SYSTEMS, INC. (Tenn. Ct. App. August 27, 2010)

E & J Construction Company ("Plaintiff") purchased a metal building from Liberty Building Systems, Inc. ("Defendant"). The metal building was purchased by Plaintiff for one of its customers, Camel Manufacturing Company ("Camel"). Plaintiff constructed the metal building for Camel and connected it to an existing building. Almost from the outset, there was a problem with leaking. Plaintiff sued Defendant raising various claims including, among others, breach of contract. After the Trial Court granted Defendant's motion for partial summary judgment, the case proceeded to trial on the few remaining claims. At the conclusion of Plaintiff's proof, the Trial Court granted Defendant's motion for directed verdict. Plaintiff appeals. We reverse the grant of a directed verdict on Plaintiff's breach of contract claim and remand for further proceedings. The judgment of the Trial Court otherwise is affirmed.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/ejconstruction_082710.pdf

Court reviews breach of contract and prompt pay notice issues in a case involving residential subdivision developers

CLAIBORNE HAULING, LLC v. WISTERIA PARK, LLC (Tenn. Ct. App. August 16, 2010)

Claiborne Hauling, LLC, contracted with Wisteria Park, LLC, to perform the excavating and grading, including installation of storm sewers and sanitary sewers, for a residential subdivision Wisteria was developing. The contract calls for Claiborne Hauling to commence work on November 6, 2006, with a substantial completion date of April 5, 2007. The contract further provides that Claiborne Hauling will receive a bonus of $500 per day for early completion but will pay a $500 per day "penalty" if completion extends past May 31, 2007. Claiborne did not finish by May 31, 2007.

Wisteria "fired" Claiborne Hauling during a heated exchange in August 2007, and confirmed termination of the contract in a letter from counsel. The ground stated for termination is failure to complete the project by May 31, 2007. However, Wisteria did not secure approval of its plans for construction of the sewer system until June 8, 2007.

When Wisteria did not pay the invoices and change orders outstanding at the time of the termination, Claiborne Hauling first sent a "prompt pay notice" and then filed this action alleging breach of contract against Wisteria. Wisteria answered and filed a counterclaim asserting, among other things, that it was entitled to recover $500 per day from May 31, 2007, until substantial completion, as liquidated damages.

After a bench trial, the court found that Wisteria was guilty of the first material breach and awarded Claiborne Hauling a judgment in the amount of $301,430.62, which included attorney fees under the Prompt Pay Act, Tenn. Code Ann. section 66-34-602 (2004). Wisteria appeals. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/claibornehauling_081610.pdf

Court reviews suit against Planning Commission challenging their approval of a Planned Unit Development

ANDREW BERNARD SHUTE, JR., ET AL. v. METROPOLITAN GOVERNMENT OF NASHVILLE, DAVIDSON COUNTY, TENNESSEE, ET AL. (Tenn. Ct. App. August 6, 2010)

The Nashville Metropolitan Council approved a Planned Unit Development (PUD) for a large residential subdivision to be constructed by Habitat for Humanity. The Metropolitan Planning Commission subsequently approved a site plan for the first phase of the subdivision, over the objections of neighboring landowners, who then challenged the approval by filing a petition for writ certiorari in the Chancery Court. The petitioners also mounted a challenge against the entire project based on the ground that the PUD had become "inactive" because construction had not yet begun, even though six years had passed since it was initially approved. The Planning Commission rejected the challenge, finding that the project was still "active" and, therefore, that the PUD did not have to go through the process of approval for a second time. The neighbors then filed a second petition for writ of certiorari.

The trial court consolidated the two petitions and heard arguments that the procedures the Planning Commission followed in reaching its decisions violated the petitioners' constitutional rights. The court dismissed both petitions, ruling that the Planning Commission had not acted illegally, arbitrarily or fraudulently, and that the petitioners' constitutional rights were not violated. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/shutea_080610.pdf

Court reviews whether a city is estopped from refusing to re-zone property based on a verbal commitment

STONEYBROOK GOLF COURSE, LLC v. CITY OF COLUMBIA (Tenn. Ct. App. July 27, 2010)

Stoneybrook Golf Course, LLC, purchased approximately 190 acres of land ("the Property") - on part of which was located a golf course - with plans to develop the vacant land surrounding the course. Before purchasing the Property, Stoneybrook met with the mayor and other officials of the City of Columbia and received their verbal assurances of strong support for the annexation of the 190 acres into the City and the re-zoning of the area to permit the building of condominiums.

After Stoneybrook purchased the Property, the city council of Columbia refused to go forward with the annexation and re-zoning until a comprehensive land use plan could be completed against which to evaluate the proposed re-zoning. Stoneybrook filed this action against the City, claiming, in essence, that the City's refusal to act promptly in accord with the verbal "commitment" constitutes an unconstitutional moratorium and, alternatively, that the City is estopped from refusing to re-zone the Property. The trial court dismissed the complaint on the pleadings. Stoneybrook appeals. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/stoneybrook_072710.pdf

Court reviews contract between consumer and utility board

GARY COOPER v. CLINTON UTILITIES BOARD (Tenn. Ct. App. July 23, 2010)

Plaintiff brought this action, charging defendant utility breached its contract with plaintiff to construct a line and deliver electricity to his property. Defendant filed a Motion for Summary Judgment and the Trial Judge held that there was no meeting of the minds between the parties and defendant was not obligated to construct a line to deliver electricity to plaintiff's dwelling. On appeal, we affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/cooperg_072310.pdf

Court reviews fairness of mediation agreement between parties

ROB MATLOCK d/b/a ROB MATLOCK CONSTRUCTION v. REGINA M. ROURK (Tenn. Ct. App. July 21, 2010)

A homeowner and a contractor agreed to use mediation to resolve their disagreement over the contractor's bill for home renovations. The mediation resulted in an agreement, signed by both parties and their attorneys, which provided that the homeowner would pay the contractor $14,000 and that the parties would release each other from any and all claims. The homeowner paid $11,000, but refused to pay the rest. The contractor sued for the deficiency and filed a motion for summary judgment. The homeowner argued that she did not owe the money because the mediation procedure was unfair and because it did not comply with the requirements of Supreme Court Rule 31. The trial court granted summary judgment to the contractor and ordered the homeowner to pay him $3,000. We affirm the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/matlockr_072110.pdf

Court reviews whether construction company violated the terms of a settlement agreement

BERKELEY PARK HOMEOWNERS ASSOCIATION, INC., ET AL. v. JOHN TABOR, ET AL. (Tenn. Ct. App. July 20, 2010)

Berkeley Park Homeowners Association, Inc., and Southern Traditions Partners, LLC (collectively referred to as "Berkeley Park") filed a motion for contempt against John Tabor and Tabor Construction, Inc. (collectively called "Tabor"), seeking to enforce a 20061 mediated settlement agreement governing the construction of a house being built by Tabor in Southern Traditions' development known as Berkeley Park Subdivision. Berkeley Park alleged that Tabor was in violation of numerous provisions of the mediated agreement, while Tabor contended that the parties had reached another agreement in 2007 that superseded the earlier agreement.

Following a bench trial, the court held that there was no superseding agreement and that the evidence clearly and convincingly showed Tabor had violated the provisions of the mediated agreement. The court entered judgment in favor of Berkeley Park, awarding it damages of $34,042.11, including attorney's fees. Tabor appeals. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/taborj_072010.pdf

Attorney General reviews proposed contracts for home stabilization.

Contracts for home stabilization following damage from vertical settlement

The Attorney General reviews whether these proposed contracts constitute contracts of insurance under Tennessee law. Using a hypothetical fact pattern and contract proposal, the Attorney General analyzes the service-indemnity test and contingency issues and determines that yes, certain contracts for home stabilization are indeed contracts of insurance under Tennessee law.

Opinion may be found at:
http://www.tba2.org/tba_files/AG/2010/ag_10_85

Court reviews whether trial court properly found for the State and granted a new trial to 2nd Defendant in a case involving interstate "crash cushions"

REGINALD DENARD USHER, SON OF REGINALD SMITH, DECEASED v. CHARLES BLALOCK & SONS, INC. ET AL. (Tenn. Ct. App. June 30, 2010)

Reginald Smith ("the Decedent") died when the exposed metal edge of a device known as a "Guardrail Energy-Absorbing Terminal" ("the crash cushion") penetrated the window of the cab of his moving overturned tractor-trailer and cut him nearly in half.

His son, Reginald Denard Usher ("the plaintiff"), filed this action in the trial court against Charles Blaylock & Sons, Inc. The plaintiff also filed a claim against the State with the Tennessee Claims Commission. The essence of the claims is that the crash cushion was negligently placed at the end of a series of concrete barriers that served to separate traffic entering on and exiting from the roadway connecting to the temporary end of Interstate 140 in Blount County.

The alleged negligence was the failure to install a "transition panel" between the last concrete barrier and the crash cushion. Such a panel is designed to cover the otherwise exposed edge of the crash cushion thereby preventing vehicles from "snagging" the exposed metal edge. Eventually, the claim against the State was joined with the claim against Blaylock.

The case was tried to a jury with the circuit judge sitting as the Claims Commissioner; the jury was utilized by the trial judge in an advisory capacity with regard to the claim against the State. The jury returned a verdict in favor of the plaintiff. The jury found that the plaintiff's total damages were $2,000,000. It apportioned fault 25% to the Decedent, 37.5% to the State, and 37.5% to Blaylock. Acting as the Claims Commissioner, the trial court went against the advice of the jury and dismissed the claim against the State. The court found (1) that the plaintiff failed to carry the burden of proof with respect to the applicable standard of care for installing crash cushions; (2) that the plaintiff failed to prove a breach of duty; and (3) that, in any event, the Decedent was at least 50% at fault for speeding through a construction zone in foggy conditions.

Later, the trial court granted Blalock's motion for judgment notwithstanding the verdict and entered judgment in its favor. The court held (1) that Blalock was not responsible, as a matter of law, for leaving off the transition panel because the State's inspector on the scene "directed" Blalock to leave it off; (2) that the plaintiff failed to carry the burden of proving, by expert testimony, what a reasonably prudent contractor would have done under the circumstances; and (3) again, that the Decedent was at least 50% at fault. The court, acting as 13th juror, conditionally granted Blalock a new trial in the event the judgment in its favor was vacated or reversed. The plaintiff appeals.

We affirm the judgment in favor of the State. We vacate the judgment in favor of Blalock and remand for a new trial as to that defendant.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/usherr_063010.pdf

Court reviews whether a contractor can prosecute a subcontractor's claim against TDOT on their behalf as a "pass-through" claim

KAY AND KAY CONTRACTING, LLC v. TENNESSEE DEPARTMENT OF TRANSPORTATION (Tenn. Ct. App. June 25, 2010)

Kay and Kay Contracting, LLC ("Contractor") entered into a contract with the Tennessee Department of Transportation ("TDOT") to build a bridge in Campbell County, Tennessee. Contractor subsequently entered into a subcontract with Whitley County Stone, LLC ("Subcontractor") to provide the excavation and grading work on the project. Subcontractor does not have a written contract with TDOT.

Both Contractor and Subcontractor filed claims with the Claims Commission alleging they were owed money by TDOT. Subcontractor was dismissed as a party because it did not have a written contract with TDOT, as required by Tenn. Code Ann. section 9-8-307(a)(1)(L). The Commissioner, however, determined that Contractor was allowed to prosecute Subcontractor's claim as a "pass-through" claim. The sole issue on this interlocutory appeal is whether Tenn. Code Ann. section 9-8-307(a)(1)(L) removes the State's sovereign immunity such that Contractor can assert a "pass-through" claim against TDOT on Subcontractor's behalf. We conclude that sovereign immunity from such a claim is not removed, and we reverse the judgment of the Claims Commission.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/kayandkay_062510.pdf

Court reviews whether trial court properly found that Appellant was an unlicensed contractor

GLEN CRUZEN v. AYMAN AWAD (Tenn. Ct. App. June 25, 2010)

This case arises out of the alleged breach of a contractual agreement entered by and between Appellant and Appellee for the repair and renovation of a commercial building. Appellant filed suit, asserting that Appellee had failed to fully compensate Appellant for his work on the building. The trial court granted Appellee's motion for summary judgment, finding that Appellant was an unlicensed contractor under Tenn. Code Ann. secton 62-6-102, and that his recovery was, therefore, limited to actual documented expenses under Tenn. Code Ann. section 62-6-103(b). Finding no error, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/cruzeng_062510.pdf

State Senate Committee considers mandatory installation of Carbon Monoxide alarms for new residential construction

SENATE LOOKS AT REQUIRING CO2 ALARMS FOR NEW CONSTRUCTION.

Carbon monoxide alarms - Legislation, Senate Bill 3581, was approved by Senate Commerce Committee members this week to require new residential construction to contain a carbon monoxide alarm detector. The detectors can be combined with smoke detectors. Carbon monoxide cannot be detected through normal human senses as it is odorless and invisible. Each year in the U.S., 400 people die and 20,000 seek hospital treatment due to carbon monoxide poisoning. The cost of the detectors is as low as $20.00.

The Senate Bill may be accessed at this address:
http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=SB3581

Worker's Compensation bill addresses gaps in coverage while protecting small businesses

The Senate Finance Committee approved legislation that creates a procedure for sole proprietors, partners, officers of corporations, and members of limited liability companies engaged in the construction industry to file for an exemption from obtaining workers' compensation insurance on themselves.  The legislation, Senate Bill 3591, comes after the General Assembly voted earlier this year to suspend a new law requiring sole proprietors and partners engaged in the construction industry to carry workers' compensation coverage on themselves.  The new law was suspended due to unintended effects of the measure. 
 
The legislation represents a consensus of all parties after several months of negotiations between those impacted by this matter.  It is designed to address concerns over gaps in coverage and provides exemptions so that small businesses will not be harmed.  It also addresses provability, verifiability and accountability in our state's worker's compensation law. 
 
The proposal aims to address gaps in coverage for workers in the various construction fields without harming small business owners.  The bill reinstates the requirement that sole proprietors and partners engaged in the construction industry carry workers' compensation insurance on themselves but provides a mechanism for exemption.  
 
Those eligible for the exemption, include:
- Up to three officers of a corporation
- Certain members of a  limited liability company, if they own at least 30 percent of the company
- Partners that own at least 30 percent of a limited partnership
- Sole proprietors
- Up to three members of a family-owned business
 
The bill requires any construction services provider requesting exemption, which has not been issued a valid license from the Board of Licensing Contractors, to obtain first a construction services provider registration from the Secretary of State.  They may then apply to the Secretary of State's office either in person or online for an exemption.  No more than three persons on any one commercial job are eligible for an exemption. The bill also requires the provider requesting an exemption be current in paying all taxes. 
 
The cost, under the bill, would total $200 every two years for a construction service provider registration and exemption.  A construction service provider that has been issued a license by the Board of Licensing Contractors would pay $100 every two years for an exemption.  Costs incurred by a construction service provider will be significantly less than a worker's compensation insurance premium based on the construction service provider's payroll.  The bill also increases the penalties against an employer engaged in the construction industry who fails to comply with the law.
 
Finally, the bill creates an offense for an employer knowingly to coerce a job applicant to obtain a worker's compensation exemption or to fire an employee due to failure to receive an exemption.  The proposal establishes a task force that will study the effects of employee misclassification in the construction industry.
 
The bill is supported by the National Federal of Independent Businessmen and the Home Builders Association of Tennessee.  

Court reviews denial of motion to compel arbitration in a recission of contract case

FRANKE ELLIOTT, ET AL. v. ICON IN THE GULCH, LLC (Tenn. Ct. App. May 20, 2010)

Purchasers of pre-construction condominium units sued the developer seeking rescission of their contracts to purchase the units. The developer filed a motion to compel mediation and/or arbitration pursuant to the contract. The trial court denied the motion and the developer appeals. Finding error, we reverse and remand.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/elliottf_052010.pdf

Workers Compensation update: Lawmakers strike deal on independent contractors

According to the Tennessean, lawmakers have struck a deal on how to cover independent contractors for accidents on the job. Yesterday, a House committee passed a new bill that would let the owners of small construction firms opt out of Tennessee's workers' compensation insurance program if they can prove they have no employees other than themselves.

The full story may be found at: http://www.tennessean.com/article/20100429/NEWS0201/4290322/1009/NEWS02

"The bill essentially would undo a 2008 law that would have required all contractors to have workers' comp insurance, even if they had no employees and were covered for accidents by their own health insurance policies." Id.

"The new bill — which is supported by groups representing large and small contractors — would limit exemptions to contractors that can show they own at least 30 percent of the company they work for and that they have either a supervisory role or are performing the work themselves." Id.

"Contractors would have to reapply for exemptions every two years. They could have to pay a $50 filing fee, money that would be used for enforcement." Id.

Court reviews whether a city failed on its three defenses in a case brought by two trade contractors

LEE MASONRY, INC. v. CITY OF FRANKLIN, TENNESSEE STANSELL ELECTRIC COMPANY, INC. V. CITY OF FRANKLIN, TENNESSEE (Tenn. Ct. App. April 29, 2010)

Two trade contractors alleged that the City breached its contract with them by failing to take reasonable measures to guard against delays and disruptions by other contractors in the City's coordination, management, and scheduling of the contractors and by failing to pay the retainages they were due. The contractors sought damages for the delays.

The City raised three defenses: (1) the "no damages for delays" provision of the contracts; (2) untimely notice of claims by the contractors; and (3) the contractors' acknowledgment and acceptance of time extensions without a reservation for increased compensation in the change orders they executed. The trial court concluded that all three of the City's defenses failed and awarded damages to the contractors. We affirm the trial court's decisions.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/leemasonry_042910.pdf

Court reviews whether the city of Franklin did, in fact, fail on its three defenses in a breach of contract claim

LEE MASONRY, INC. v. CITY OF FRANKLIN, TENNESSEE STANSELL ELECTRIC COMPANY, INC. V. CITY OF FRANKLIN, TENNESSEE (Tenn. Ct. App. April 29, 2010)

Two trade contractors alleged that the City breached its contract with them by failing to take reasonable measures to guard against delays and disruptions by other contractors in the City's coordination, management, and scheduling of the contractors and by failing to pay the retainages they were due. The contractors sought damages for the delays. The City raised three defenses: (1) the "no damages for delays" provision of the contracts; (2) untimely notice of claims by the contractors; and (3) the contractors' acknowledgment and acceptance of time extensions without a reservation for increased compensation in the change orders they executed. The trial court concluded that all three of the City's defenses failed and awarded damages to the contractors. We affirm the trial court's decisions.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/leemasonry_042910.pdf

Court reviews whether construction company was relieved of its contractual obligation due to a material breach as a result of prospective buyers' failure to pay

COREY GERULIS AND WIFE SARA FELMLEE v. DANIEL A. JACOBUS, ET AL. (Tenn. Ct. App. April 26, 2010)

Prospective buyers entered into a contract with construction company for purchase of a home; the contract was amended to provide that a garage would be constructed. A letter was subsequently prepared specifying a time for the buyers to tender payment for the garage. The buyers failed to secure a loan to finance construction of the garage until a year after closing. When the construction company refused to build the garage for the amount specified in the contract amendment, the buyers initiated this action.

The trial court found that the letter clarified the amendment by setting a time for performance and that the buyers' failure to pay within that time was a breach of the agreement which relieved the construction company of its contractual obligations; the court consequently dismissed buyers' action. Finding that there was not an agreement between the parties, the trial court's determination that the letter clarified the amendment is reversed. Finding that a reasonable time for performance was 90 days from closing on the home, and that the buyers' failure to tender payment within such period was a material breach, we affirm the trial court's determination that the construction company was relieved of its contractual obligations.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/gerulisc_042610.pdf

Court reviews whether failure to tender payment constitutes a material breach and relieves a construction company of its contractual obligations

COREY GERULIS AND WIFE SARA FELMLEE v. DANIEL A. JACOBUS, ET AL. (Tenn. Ct. App. April 26, 2010)

Prospective buyers entered into a contract with construction company for purchase of a home; the contract was amended to provide that a garage would be constructed. A letter was subsequently prepared specifying a time for the buyers to tender payment for the garage. The buyers failed to secure a loan to finance construction of the garage until a year after closing. When the construction company refused to build the garage for the amount specified in the contract amendment, the buyers initiated this action.

The trial court found that the letter clarified the amendment by setting a time for performance and that the buyers' failure to pay within that time was a breach of the agreement which relieved the construction company of its contractual obligations; the court consequently dismissed buyers' action. Finding that there was not an agreement between the parties, the trial court's determination that the letter clarified the amendment is reversed. Finding that a reasonable time for performance was 90 days from closing on the home, and that the buyers' failure to tender payment within such period was a material breach, we affirm the trial court's determination that the construction company was relieved of its contractual obligations.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/gerulisc_042610.pdf

Court reviews trial court's grant of summary judgment and award of attorney's fees

BOBBY R. HOPKINS v. DOYLE K. RIGGS, ET AL. (Tenn. Ct. App. April 15, 2010)

Bobby R. Hopkins (Hopkins) sued Doyle K. Riggs and Ruth Riggs (the Riggs) alleging, in part, that the Riggs had contracted to construct a road on the Riggs' property for Hopkins' use and had failed to construct an adequate road. The Riggs filed a motion for summary judgment and the Trial Court granted them summary judgment. The Riggs then sought attorney's fees pursuant to the parties' contract. The parties then reached an agreement with regard to attorney's fees, an agreement which the Riggs subsequently alleged was breached by Hopkins. The Riggs then filed a motion and the Trial Court entered an order granting the Riggs additional attorney's fees.

Hopkins appeals to this Court raising issues regarding the grant of summary judgment and the award of attorney's fees. We affirm the grant of summary judgment, hold that the Riggs were entitled to an award of attorney's fees pursuant to the parties' contract, vacate the Trial Court's November 25, 2008 Order granting additional attorney's fees, and remand this case to the Trial Court for entry of an order that complies with the parties' August 6, 2008 agreement.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hopkinsb_041510.pdf

Court reviews summary judgment ruling and award of attorney's fees in a case about road construction

BOBBY R. HOPKINS v. DOYLE K. RIGGS, ET AL. (Tenn. Ct. App. April 15, 2010)

Bobby R. Hopkins (Hopkins) sued Doyle K. Riggs and Ruth Riggs (the Riggs) alleging, in part, that the Riggs had contracted to construct a road on the Riggs' property for Hopkins' use and had failed to construct an adequate road. The Riggs filed a motion for summary judgment and the Trial Court granted them summary judgment. The Riggs then sought attorney's fees pursuant to the parties' contract. The parties then reached an agreement with regard to attorney's fees, an agreement which the Riggs subsequently alleged was breached by Hopkins. The Riggs then filed a motion and the Trial Court entered an order granting the Riggs additional attorney's fees. Hopkins appeals to this Court raising issues regarding the grant of summary judgment and the award of attorney's fees.

We affirm the grant of summary judgment, hold that the Riggs were entitled to an award of attorney's fees pursuant to the parties' contract, vacate the Trial Court's November 25, 2008 Order granting additional attorney's fees, and remand this case to the Trial Court for entry of an order that complies with the parties' August 6, 2008 agreement.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/hopkinsb_041510.pdf

Court reviews trial court's interpretation of a settlement agreement

THOMAS GAZLAY, d/b/a PERSONALIZED PLANTING, INC., v. TULSI ASSOCIATES, et al., and THE ESTATE OF HOWARD SEXTON, for decedent HOWARD SEXTON, et al., d/b/a PRECISION CONSTRUCTION COMPANY (Tenn. Ct. App. April 8, 2010)

Plaintiff subcontractor, sued contractor, who constructed a hotel for co-defendant owner of hotel for breach of contract. Construction company cross-filed against defendant hotel owner. The Trial Court, after hearing proof, entered a joint settlement judgment against both defendants on behalf of the plaintiff and based the judgment on the terms of the settlement agreement which had been entered in a prior action in a suit between the defendants. The owner of the hotel appealed. We hold the Trial Court erred in its interpretation of the settlement agreement between the defendants, and set aside the judgment against appellant and direct that the contractor is liable for all the damages awarded, based on appellants' cross-action against the contractor.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/gazlayt_040810.pdf

Court reviews trial court's interpretation of a settlement agreement between a contractor and a hotel owner

THOMAS GAZLAY, d/b/a PERSONALIZED PLANTING, INC., v. TULSI ASSOCIATES, et al., and THE ESTATE OF HOWARD SEXTON, for decedent HOWARD SEXTON, et al., d/b/a PRECISION CONSTRUCTION COMPANY (Tenn. Ct. App. April 8, 2010)

Plaintiff subcontractor, sued contractor, who constructed a hotel for co-defendant owner of hotel for breach of contract. Construction company cross-filed against defendant hotel owner. The Trial Court, after hearing proof, entered a joint settlement judgment against both defendants on behalf of the plaintiff and based the judgment on the terms of the settlement agreement which had been entered in a prior action in a suit between the defendants. The owner of the hotel appealed.

We hold the Trial Court erred in its interpretation of the settlement agreement between the defendants, and set aside the judgment against appellant and direct that the contractor is liable for all the damages awarded, based on appellants' cross-action against the contractor.

Opinion Available At:
http://www.tba2.org/tba_files/TCA/2010/gazlayt_040810.pdf

Court reviews trial court's decision in a case about a boundary dispute

MARILOU GILBERT v. DON BIRDWELL and wife, CHRISTINE BIRDWELL (Tenn. Ct. App. April 1, 2010)

This case arises from a boundary line dispute. Appellants appeal the trial court's denial of their petition to reopen proof after the court rendered its decision, establishing the disputed boundary in accordance with the Appellee's survey. Finding no error, we affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/gilbertm_040110.pdf

Court reviews trial court decision not to reopen proof in a case regarding a boundary dispute

MARILOU GILBERT v. DON BIRDWELL and wife, CHRISTINE BIRDWELL (Tenn. Ct. App. April 1, 2010)

This case arises from a boundary line dispute. Appellants appeal the trial court's denial of their petition to reopen proof after the court rendered its decision, establishing the disputed boundary in accordance with the Appellee's survey. Finding no error, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/gilbertm_040110.pdf

Court reviews TCPA damages awards and breach of warranty and contract claims

SCOTT CAMPBELL, ET AL. v. WILLIAM H. TEAGUE, ET AL. (Tenn. Ct. App. March 31, 2010)

This is a construction case. Appellants/Builders appeal the trial court's award of damages to Appellees/Homeowners pursuant to the Tennessee Consumer Protection Act, and arising from Appellants/Builders' breach of warranty and contract. Discerning no error, we affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/campbells_033110.pdf

Court reviews whether trial court properly awarded damages pursuant to the TN Consumer Protection Act

SCOTT CAMPBELL, ET AL. v. WILLIAM H. TEAGUE, ET AL. (Tenn. Ct. App. March 31, 2010)

This is a construction case. Appellants/Builders appeal the trial court's award of damages to Appellees/Homeowners pursuant to the Tennessee Consumer Protection Act, and arising from Appellants/Builders' breach of warranty and contract. Discerning no error, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/campbells_033110.pdf

Attorney General Reviews Fees and Regulations for Construction of Schools in Special School Districts

Fees and regulations for construction of schools in special school districts (TN Attorney General Opinion 10-27, March 9, 2010)

The attorney general reviews two questions:
1. Can a city require a special school district to pay building permit and plan review fees for construction and/or renovation of a school located within the city limits?
2. Does a special school district have to conform to planning and zoning regulations of the city for school district-owned property located within the city limits?

He concludes that the answers to both questions depend on the provisions of the private act creating the special school district and the local planning and zoning regulations, because special school districts are created by the Tennessee General Assembly.

Opinion may be found at:
http://www.tba2.org/tba_files/AG/2010/ag_10_27.pdf

Court reviews validity of materialman's lien

BOLON CUSTOM KITCHENS v. ROBERT AND NORMA PARMAN (Tenn. Ct. App. March 8, 2010)

Materials supplier filed suit to enforce a lien upon property for unpaid costs of improvement to the residence; the trial court granted supplier's motion for summary judgment. The property owners appeal, asserting that supplier's lien was barred by the filing of the Notice of Completion or, in the alternative, that supplier's Notice of Lien was not properly filed with the Register's Office. Finding that supplier had a valid lien, the trial court's judgment is affirmed.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/parmanr_030810.pdf

TSC holds collecting additional privilege taxes based on additional square footage is prohibited

HOME BUILDERS ASSOCIATION OF MIDDLE TENNESSEE, ET AL. v. WILLIAMSON COUNTY, ET AL. (Tenn.Ct.App. February 25, 2010)

This appeal involves a question of law concerning the interpretation of the Williamson County Adequate Facilities Tax Act, which imposes a privilege tax based upon the gross square footage of new construction in Williamson County. In 2005, the County notified certain builders of new residential construction that a review for the period from January 1, 1998, through December 31, 2003, indicated that the builders owed an additional amount of privilege tax because the actual square footage of the completed construction was greater than the projected square footage at the time the privilege tax was paid. The builders objected to payment of the additional privilege tax and filed an action for declaratory judgment, contending that the County's belated collection attempts were in derogation of the Act.

The trial court granted summary judgment in favor of the County, and the Court of Appeals affirmed. We accepted this case for review to determine whether, after the privilege tax is paid based upon the projected square footage of new development before construction, the County is authorized to collect an additional privilege tax after construction based upon the actual completed square footage. We hold that after the County collects the privilege tax based upon the projected square footage, the language of the Act prohibits the County from later collecting additional privilege taxes based upon the actual square footage of the completed project. Accordingly, we reverse the judgment of the Court of Appeals, vacate the trial court's grant of summary judgment in favor of the County, grant summary judgment in favor of the builders, and remand to the trial court for further proceedings as necessary.

The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TSC/2010/homebuilders_022510.pdf

A dissenting opinion may be found here:
http://www.tba2.org/tba_files/TSC/2010/homebuilders_diss_022510.pdf

Court reviews trial court's decision in a case about a disfunctional partnership

BEVERLY MORAN v. ELLIOT WILLENSKY (Tenn. Ct. App. February 3, 2010)

This case arises from a partnership gone bad. The trial court found that the Appellant wrongfully dissociated from the partnership. Pursuant to the Tennessee Uniform Partnership Act, Tenn. Code Ann. section 61-1-101 et seq., the trial court awarded Appellee project costs, and winding up costs, including attorney's fees. Appellant appeals. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/moranb_020310.pdf

Court reviews whether trial court properly dismissed materialman's lien

E. W. STEWART LUMBER CO. v. MEREDITH CLARK & ASSOCIATES, LLC AND LEROY DODD (Tenn. Ct. App. January 29, 2010)

Supplier of building materials filed materialman's lien on property after contractor failed to pay for materials provided for building a house on the property. On cross motions for summary judgment, the trial court struck down liens the supplier had filed against the subject property and dismissed the supplier's action; supplier appeals. Finding error, we reverse and remand to the trial court for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/stewart_012910.pdf

Can a municipality charge a fee for a building permit on agricultural land

Ability of Municipalities to Charge a Fee for Building Permits for Agricultural (AG January 28, 2010)

Tenn. Code Ann. 6-54-126 does not prohibit a municipality from charging a fee for building permits on agricultural land. It is only concerned with a municipality's power to regulate use of the land and not with it's ability to require a building permit.

The full text of this opinion may be found on the TBA website at:
 http://www.tba2.org/tba_files/AG/2010/ag_10_12.pdf

Court reviews whether property owner is protected against a remote material supplier's lien

E. W. STEWART LUMBER CO., D/B/A STEWART BUILDER SUPPLY v. MEREDITH CLARK & ASSOCIATES, LLC AND LEROY Tenn.Ct.App. January 28, 2010)

Supplier of building materials filed materialman's lien on property after contractor failed to pay for materials provided for building a house on the property. On cross motions for summary judgment, the trial court struck down liens the supplier had filed against the subject property and dismissed the supplier's action; supplier appeals. Finding error, we reverse and remand to the trial court for further proceedings.

The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2010/stewart_012910.pdf

Appeals court affirms trial court ruling of failure to state a claim

LEONARD PORTER, JR. ET AL. v. CITY OF CLARKSVILLE ET AL. (Tenn. Ct. App. January 25, 2010)

This action arises from the issuance of stop work orders that prevented the plaintiffs from completing the construction of their new residence. The plaintiffs brought this action against the City of Clarksville and the Clarksville Building and Codes Department under the Governmental Tort Liability Act (GTLA) asserting numerous and varied claims, including claims for false statements, fraud, deception, conspiracy, discrimination, malicious harassment, coercion, and violation of due process, and requested financial damages, emotional damages, and punitive damages. The defendants filed a Tenn. R. Civ. P. 12.02(6) Motion to Dismiss on the grounds that the action was a de facto appeal of the administrative hearing on the stop work orders and that the defendants were immune under the GTLA. The trial court granted the motion to dismiss finding that the plaintiffs failed to state a claim upon which relief could be granted. We affirm.

The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2010/porterl_012610.pdf

TCA overturns trial court ruling regarding TCPA

CITICAPITAL COMMERCIAL CORPORATION v. CLIFFORD COLL (Tenn. Ct. App. January 19,2010)

A finance company that owned a security interest in a Hyundai excavator appeals the award of a judgment against it in favor of a consumer for violations of the Tennessee Consumer Protection Act. The consumer alleged in his complaint that the creditor and the equipment company that sold the excavator to the consumer had engaged in unfair and deceptive trade practices, because the excavator was defective when it was delivered, it never worked properly, and the defendants failed to make repairs and refused to permit him to trade for another excavator. The financing company denied any wrongdoing and asserted the one-year statute of limitations as an affirmative defense. The equipment company that sold the excavator went out of business and dissolved prior to trial. The only claim tried was the consumer's TCPA claim against the finance company.

The trial court denied the finance company's Tenn. R. Civ. P. 50.01 motion for a directed verdict on the statute of limitations defense, finding that the TCPA claim was timely filed within the five-year statute of repose. At the conclusion of the jury trial, the consumer prevailed on his TCPA claim and the trial court awarded treble damages and attorneys' fees based on a finding the finance company "willfully and knowingly" violated the TCPA. We have determined the TCPA claim was barred by the one-year statute of limitations; therefore, the trial court erred in denying the motion for a directed verdict, and the judgment of the trial court is reversed.

The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2010/citicapital_012010.pdf

Tennessee Legislature suspends Workers' Compensation regulations. Sources indicate either until March 28, 2010 or 2011.

From the Knoxville Bar Association's legislative update: "Worker's Compensation -- The General Assembly approved legislation calling for immediate suspension of a new law to require sole proprietors and partners engaged in the construction industry to carry workers' compensation coverage on themselves due to unintended effects of the act. The law will be suspended until March 28, 2010. In the meantime, the legislature will discuss alternative ways to address gaps in coverage for workers in companies of all sizes in the various construction fields in order to address the problem without harming small business owners."

However, other independent sources say the regulations are suspended until March 28, 2011.

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