APPELLATE COURT OPINIONS

This is an appeal by petitioner/appellant, Lue Ann Smith, from an order of the Franklin County Circuit Court quashing her writ of certiorari. The writ suspended the decisions of respondent/appellee, the Winchester City Council (“the Council”), allowing intervening petitioner, Karl Smith, permission and denying Appellant permission to sell fire works within the City of Winchester. The facts out of which this matter arose are as follows.

The University of the South, residuary legatee under the will of Foster Hume, deceased, has appealed from the judgment of the Probate Court holding that a specific devise to Meredith Klank was not extinguished by ademption and therefore the subject of the specific devise did not become a part of the residuary estate.

The orders handed down by the Tennessee Board of Medical Examiners on March 6, 1995 can stand only if the board’s conclusions are supported by substantial and material evidence. See Tenn. Code Ann. § 4-5-322(h)(5) (Supp. 1996). Cases of this sort require either admissions by the accused physician, Williams v. State Dep’t of Health & Env’t, 880 S.W.2d 955, 958 (Tenn. Ct. App. 1994), or expert proof concerning the standard of professional conduct alleged to have been violated. Williams v. Tennessee Bd. of Medical Examiners, App. No. 01A01-9402-CH-00060, 1994 WL 420910, at *6-8 (Tenn. Ct. App. Aug. 12, 1994) (No Tenn. R. App. P. 11 application filed).

The captioned plaintiffs have appealed from the summary dismissal of their various claims by the trial court. The various claims and defenses on appeal arose from a failed investment scheme, and are illustrated by the following issues presented by the parties:

In this capital case, the appellants, William Eugene Hall and Derrick Desmond Quintero, were each convicted by a jury of two counts of murder during the perpetration of first-degree burglary, three counts of grand larceny, one count of petit larceny, and three counts of first-degree burglary. After a hearing, the jury sentenced each of the appellants to a life sentence for the murder of Buford Vester. As to the murder of Myrtle Vester, the jury found the following five aggravating factors: (1) the appellants were previously convicted of one or more felonies involving the use or threat of violence; (2) the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind; (3) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the appellants or another; (4) the murder was committed while the appellants were engaged in committing, or were accomplices in the commission of, or were attempting to commit, or were fleeing after committing or attempting to commit any first-degree murder, arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb; and (5) the murder was committed by the appellants while they were in lawful custody or in a place of lawful confinement or during their escape from lawful custody or from a place of lawful confinement. See T.C.A. § 39-2-203(i)(2), (5), (6), (7), (8) (1982). The jury found that there were no mitigating circumstances sufficiently substantial to outweigh the aggravating circumstances and sentenced the appellants to death by electrocution for the murder of Mrs. Vester.

This appeal involves the enforcement of a 47-year-old restrictive covenant in a residential subdivision in Tullahoma. After a physician converted one of the homes in the subdivision into a medical clinic, a group of property owners filed suit in the Chancery Court for Coffee County seeking declaratory and injunctive relief to enforce a restrictive covenant requiring the property in the subdivision to be used for residential purposes. The trial court, sitting without a jury, determined that the restrictive covenant remained enforceable, directed the physician to remove an illuminated exterior sign, and awarded attorney’s fees to the property owners. On this appeal,  the physician takes issue with the enforcement of the restrictive covenant and with the award of attorney’s fees. While we affirm the enforcement of the restrictive covenant, we reverse the award of attorney’s fees.

This appeal addresses the issue of whether the “innocent co-insured doctrine,” first recognized by our supreme court in Spence v. Allstate Insurance Co., 883 S.W.2d 586 (Tenn. 1994), should be extended so as to permit the appellant, Richard E. Finch (Finch) to recover under an insurance policy, issued by the appellee, Tennessee Farmers Mutual Insurance Company (TFMIC), for loss to property held jointly with his co-insured spouse whose intentional acts caused the loss. The trial court  interpreting Tennessee case law to disallow such recovery primarily “on the basis of policy considerations,” entered a summary judgment for TFMIC.1 Finch challenges the correctness of that decision. For reasons to be set forth, we reverse and remand.

The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion, it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.
 

The captioned petitioners sought judicial review and reversal of the administrative order of the respondent Board subjecting them to discipline for professional misconduct. From a judgment affirming the administrative order, the petitioners have appealed, presenting the issue for review in the following terms: The Petitioner-Appellants, Frank McNiel, M.D. and Janet McNiel, M.D., respectfully submit that the issue presented for review in this case is whether or not the Tennessee Board of Medical Examiners’ decision to discipline their license to practice medicine in Tennessee should be reversed pursuant to T.C.A. §4-5-322(h) of the Tennessee Uniform Administrative Procedures Act, in that the decision was not supported by substantial and material evidence and was otherwise arbitrary and capricious.

The Trial Court and this Court have granted permission to the Hurst Construction Co., Inc., to appeal from an interlocutory order of the Trial Court overruling the motion of Hurst Construction Co., Inc., for summary judgment on grounds of the statute of limitations.