Court of Appeals Opinions - 2^nd Quarter 2004

The following Opinions are available for download:

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Cases posted the week of 06/28/2004
Melanie Gibson vs. Ernestine Francis - E2003-02226-COA-R3-CV View
Sevier County - This tort action arises out of a two-vehicle accident. At trial, the defendant Ernestine W. Francis admitted liability. The jury returned a verdict in favor of the plaintiff Melanie Sue Gibson for property damage in the amount of $6,900; however, the jury declined to award her any damages on her claim for personal injuries. On appeal, the plaintiff argues that the trial court did not properly perform its role as thirteenth juror; that the verdict is contrary to the weight of the evidence; and that the trial court erred when it re-instructed the jury in response to a question from that body. We affirm.

Gregor Nadler vs. Mountain Valley Chapel Business Trust - E2003-00848-COA-R3-CV View
Sevier County - Gregor Nadler ("the plaintiff") took a default judgment in the amount of $68,270.98 against Gerald H. Lucas ("Mr. Lucas") in a Florida proceeding. The judgment survived Mr. Lucas's subsequent bankruptcy filing. The plaintiff domesticated his judgment in Tennessee and then filed suit against, inter alia, the Mountain Valley Chapel Business Trust and Mr. Lucas, claiming (1) that Mr. Lucas had engaged in a fraudulent conveyance when he formed the trust and (2) that the trust was his alter ego. Following a bench trial, the court dismissed the plaintiff's complaint. From this judgment, the plaintiff appeals, challenging the trial court's rulings with respect to his fraudulent conveyance and alter ego claims. In addition, the plaintiff raises an evidentiary issue. We affirm.

Ruby Tuesday, Inc. vs. Gerald Largen - E2003-01795-COA-R3-CV View
Roane County - This case started out as a dispute over the title to a twenty to thirty-five foot wide strip along a state highway. The Chancery Court of Roane County held that the defendant held the title, but that the plaintiff had an access easement over the property. The defendant asserts on appeal that the Court erred because the plaintiff never claimed an easement in its pleadings and that the Court simply created one. The plaintiff asserts that the Court erred in finding that the defendant held the title to the property. We affirm.

Jeffrey Lynn Miller vs. Jerry Ellison, et al - E2003-02732-COA-R3-CV View
Campbell County - Plaintiff, a customer who was injured when assaulted on the premises, brought action for damages against the owners-lessors of the premises and others. The Circuit Court, Campbell County, Conrad Troutman, Judge, dismissed the action as to the owners-lessors for failure to state a claim upon which relief could be granted, and plaintiff appeals. We affirm.

Quinton Armstrong vs. Michael Magill - W2003-00207-COA-R3-CV View
Shelby County - This is a claim for unemployment benefits. The claimant was terminated from her employment at the defendant business. Her separation notice indicated that she was terminated for improper conduct and having a disrespectful attitude. Subsequently, the claimant filed a claim for unemployment benefits. The agency denied benefits. The claimant appealed. The appellate tribunal conducted a telephonic hearing and affirmed the denial of benefits. The claimant filed the instant petition for judicial review, claiming that the administrative proceedings were so fundamentally flawed that her procedural due process rights were violated. The trial court denied the petition and affirmed the denial of benefits. The claimant now appeals. We affirm, finding that the claimant's due process rights were not violated, and that there is substantial and material evidence to support the denial of benefits.

Mary Williams vs. Jeweline Crenshaw - W2003-01029-COA-R3-CV View
Shelby County - Plaintiff brought suit on a defectively executed joint will, arguing that, despite its infirmities as a testamentary instrument, it is still enforceable as a contract for the benefit of a third party. In her suit, Plaintiff sought to recover certain property, purportedly covered by the defective joint will, that Decedent had devised to Defendant in a subsequent will. The lower court granted Defendant's motion for summary judgment, finding that the defective joint will does not constitute an enforceable contract. For the following reasons, we affirm.

Deron A. Hatton vs. CSX Transportation - E2003-01831-COA-R3-CV View
Hamilton County - This is a an action for damages under FELA wherein the Plaintiff claimed that he was negligently exposed to toxic chemicals in the workplace. The Defendant pleaded, inter alia, the defense of the three-year statute of limitations, to which the discovery rule was applicable. This issue was bifurcated and tried separately, to the same jury, which found in favor of the Plaintiff. On the issues of liability, causation, and damages [the second phase of the trial] the jury found in favor of the Defendant. Plaintiff appeals, claiming that the issue of the statute of limitation should not have been bifurcated, that the court should have directed a verdict for the Plaintiff on account of OSHA violations, and the exclusion-admission of expert testimony. Finding no error, the judgment is affirmed.

Onvil Robinson vs. Dorothy Currey - E2003-01847-COA-R3-CV View
Hamilton County - Onvil Robinson and Lara Fyfe ("Plaintiffs") sued Dorothy R. Currey and Jack L. Currey ("Defendants") regarding a condominium unit Plaintiffs purchased from Defendants. Plaintiffs based their claims against Defendants upon the Tennessee Consumer Protection Act, Tenn. Code Ann. § 47-18-101 et. seq., and the Tennessee Residential Property Disclosures Act, Tenn. Code Ann. § 66-5-201 et. seq. Plaintiffs later conceded the Tennessee Consumer Protection Act did not apply to Defendants. The Trial Court granted Defendants summary judgment on the Tennessee Residential Property Disclosures Act claim. Plaintiffs filed a Rule 59 motion to alter or amend, which the Trial Court denied citing both procedural and substantive problems with Plaintiffs' case. Plaintiffs appeal. We affirm.

CBM Package Liquor vs. City of Maryville - E2003-01220-COA-R3-CV View
Blount County - In this case it is argued that the Trial Court erred in approving the decision of the Appellees, the City of Maryville and the City Council for the City of Maryville, to issue certificates of compliance to three applicants as a precondition to each such applicant securing a license to operate a retail liquor store from the Tennessee Alcoholic Beverage Commission. We affirm the judgment of the Trial Court and remand

Burchell Insurance vs. Western Sizzlin Steakhouse - E2003-01001-COA-R3-CV View
Hamblen County - Action by corporation for judgment on promissory notes representing loans made to partnership resulted in Judgment against defendant partner for one-half of amount of the loans plus interest and attorney's fees. On appeal we affirm.

A.D. Doe & M.A. Doe vs. May - E2003-01642-COA-R3-CV View
Knox County - The plaintiff A.D. Doe for himself and his daughter M.A. Doe sued the Sheriff of Knox County and the County itself for damages when M.A. Doe was allegedly raped by a deputy sheriff. The complaint alleged that the sheriff was liable on his bond and on his oath of office and that Tenn. Code Ann. § 8-8-302 imposed liability on the County because the deputy was acting "by virtue of or under color of the office." The Circuit Court of Knox County dismissed the complaint against the Sheriff and the County for the failure to state a claim. We affirm.

Laurel Valley Property Owners vs. James Hollingsworth - E2003-01936-COA-R3-CV View
Blount County - Laurel Valley Property Owners Association, Inc. ("the Plaintiff") filed a declaratory judgment action against James P. Hollingsworth, III and others pursuant to Tenn. Code Ann. § 29-14-101 et. seq. for a determination of the "right[s] and responsibilities of the parties" with respect to a purported easement over private roads owned either by the Plaintiff or a non-party to this case, Richard G. Heinshon. The trial court determined that Mr. Hollingsworth and the other defendants did not have a right to traverse or otherwise use the roads. As a consequence of this holding, the trial court entered a permanent injunction and ordered the erection of a permanent barrier on the defendants' property. We affirm in part and reverse in part.

Patricia Jolley vs. Wanda Henderson - E2003-01406-COA-R3-CV View
Hamilton County - This is a will contest case. Patricia Henderson Jolley and Howard E. Henderson, Jr. (collectively "the Contestants") appeal the chancery court's judgment that they do not have standing to contest their father's will. The Contestants contend that the chancery court erred in addressing the issue of their standing and in other ways. They argue that their stepmother, Wanda K. Henderson ("the Executrix"), failed to raise the standing issue and, as a consequence, waived it. They also rely on alleged procedural errors and contend that they do have standing. We affirm.

Clayton O. Lovlace, Jr. v. Susan Lovlace - M2003-01274-COA-R3-CV View
Hickman County - The trial court granted Mother's petition for conservatorship of the parties' disabled son; enforced MDA provision requiring Father to pay child support beyond child attaining age of majority; increased Father's child support obligation; and ordered Father to continue to maintain life and disability insurance. We affirm.

Theresa Caldwell vs. Canada Trace - W2003-00264-COA-R3-CV View
Shelby County - This case involves the attachment of a mobile home and its subsequent transport to a storage facility. The Appellee sued out an attachment on the Appellants' mobile home to secure payment of past rent due on a tenancy at Appellee's trailer park. Appellee had the mobile home transported after it was attached and Appellants sued Appellee for damages to the mobile home. The Shelby County General Sessions Court found in favor of Appellants, and Appellee appealed to the Circuit Court. The Circuit Court found in favor of Appellee, and Appellants now appeal to this Court. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

Marks, Shell & Maness v. Cynthia T. Mann - M2002-00652-COA-R3-CV View
Montgomery County - This cause is a civil suit for damages against Gary and Cynthia Mann resulting from Cynthia Mann's embezzlement of funds totaling $550,000.00 from the law firm of Marks, Shell, and Maness. The trial court found Mr. and Mrs. Mann jointly and severably liable for the loss. Mr. Mann appeals. We affirm the ruling of the trial court.

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Cases posted the week of 06/21/2004
Scott Greer d/b/a A-1 Septic Tank v. George Willis - M2003-02507-COA-R3-CV View
Wilson County - This appeal involves an action for breach of an oral contract to pump out a swimming pool. The Circuit Court for Wilson County conducted a bench trial and awarded the plaintiff a judgment against both the owner of the pool and the affiliate real estate broker who requested the work. We have concluded that the evidence does not support the judgment against the property owner but affirm the judgment against the broker.

State, ex rel. Laura Fabrizio vs. Richard Cadmus - E2003-01556-COA-R3-CV View
Loudon County - In 2001, the trial court entered an order ("the 2001 order") awarding the State of Tennessee ex rel. Laura Fabrizio ("the State") a child support arrearage of $9,785. Subsequently, the same court, by order entered March 25, 2003, confirmed a referee's "Findings and Recommendations" adding interest of $2,152.70 to the original award. Richard R. Cadmus ("Father") seeks to go behind the 2001 order in an attempt to invalidate it on a number of grounds. The State, on the other hand, complains that the interest calculated by the referee and approved by the trial court is incorrect. We find no basis in the record submitted to us for disturbing the trial court's last order. Accordingly, we affirm.

Stefan Olaru vs. Steven Brown - E2003-02875-COA-R3-CV View
Hamilton County - Stefan Olaru filed an action for malpractice against his former attorney, Steven D. Brown. The trial court dismissed the complaint based upon the defendant's plea of a discharge in bankruptcy. The plaintiff appeals. We affirm.

Ralph Harwell vs. Jophn Watson - E2003-1796-COA-R3-CV View
Knox County - Conservator brought action to recover assets for the Estate of Carolyn Brown which had been given to defendant by Brown. The Chancellor invoked the constructive trust doctrine and ordered assets returned to the Estate. On appeal, we affirm.

Chattanooga Agricultural Assoc. vs. William Sapp - E2003-01984-COA-R3-CV View
Bledsoe County - The Trial Court held defendant's purchase money security interest in cattle had priority over plaintiffs' prior security interest. On appeal, we affirm.

Sam Wilson vs. Jerry Esch - W2003-02866-COA-R3-CV View
Weakley County - The trial court awarded Appellee recision of a contract for purchase of an automobile. We affirm

Donald Hargrove v. Nashville & Davidson County - M2003-00289-COA-R3-CV View
Davidson County - This appeal involves a dispute regarding the procedures for returning a formerly disabled police officer to work. After the Employee Benefit Board of the Metropolitan Government of Nashville and Davidson County determined that the former officer was no longer disabled, the Metropolitan Nashville Police Department directed him to report to a 13-week training class. Fearing that he could lose both his disability pension and his job if he failed the training class, the officer filed suit in the Chancery Court for Davidson County seeking a declaratory judgment that the Department lacked the authority to require him to complete the training class before returning him to work. The trial court determined that requiring the officer to complete the training class before returning him to active duty was not inconsistent with Nashville's charter or ordinances. The officer perfected this appeal. We affirm the trial court's conclusion that the Department has the authority to require the officer to complete the training before returning him to active duty.

In Re: C.K.G., C.A.G., C.L.G. - M2003-01320-COA-R3-JV View
Williamson County - Unmarried couple in their forties decide to have children. Due to the woman's concern that she may be too old to produce viable eggs, the couple engaged the services of an in vitro fertilization clinic and signed contracts required by the clinic, following which the clinic obtained eggs from an anonymous female donor, which were fertilized with the man's sperm and then implanted in the woman who carried them full term resulting in the birth of triplets. Thereafter, the couple separated and the woman filed for custody. The man answered and asserted that the woman is not the mother or a legal parent of the children because she was merely a gestational surrogate who has no genetic tie to the children. The man further asserted that the children have no mother because the egg donor waived her parental rights. The trial court held that the woman is the mother of the children, awarded joint custody to the couple and primary custody to the woman. The man appealed. We affirm, finding that the woman is a legal parent and the mother of the children based on the intent of the parties.

In Re The Estate of Clarice Lee Miller - M2003-01241-COA-R3-CV View
Davidson County - This case involves the rights of a survivor in a joint bank account. During her lifetime, the decedent sold certain real property, put the proceeds in a separate bank account, and executed a will leaving half of the proceeds to her niece. The bank account in which the proceeds were deposited was a joint account between the decedent and her brother. The brother had power of attorney over the decedent's affairs and was the named executor in the her will. After the decedent died, the decedent's will was admitted to probate. The brother, as executor, filed a petition asking for instructions as to the proper disposition of the money in the joint bank account. The trial court held that, when the funds were placed in the joint bank account, the bequest to the niece was adeemed and the funds were no longer a part of the decedent's estate. Therefore, the trial court determined that the brother, as the joint account holder with a right of survivorship, was entitled to all of the proceeds. The named beneficiary now appeals. We reverse, concluding that the evidence preponderates against a finding that the bank account was a joint tenancy with a right of survivorship.

Dennis Allen vs. City of Memphis - W2003-00396-COA-R3-CV View
Shelby County - This appeal raises the validity of an ordinance passed by the City of Memphis annexing a portion of Shelby County. Appellants contend that Appellees violated the Open Meetings Act when such ordinance was passed. All parties filed motions for summary judgment and the trial court granted Appellees' motion. For the following reasons, we reverse the decision of the trial court and remand for further proceedings consistent with this opinion.

Jim Pratt vs. J.W. Gibson d/b/a J.W. Gibson Co. - E2003-00114-COA-R3-CV View
Roane County - This appeal involves competing claims for breach of contract. J.W. Gibson d/b/a J.W. Gibson Company ("Defendant"), entered into an oral contract with Pratt Masonry Company ("Pratt Masonry") for Pratt Masonry to furnish masonry work on a house. When the work was completed, Defendant refused to pay, claiming the masonry work was so defective that all the bricks had to be removed and replaced. Pratt Masonry filed suit seeking payment for the work performed under the oral contract. Defendant counterclaimed for damages incurred in having to remove and replace the bricks. The Trial Court concluded Pratt Masonry breached the contract by performing substandard masonry work, but Defendant failed to prove it was necessary to remove and replace all the bricks. Both parties appeal. We modify the judgment of the Trial Court and remand.

Marjorie Delapp vs. Arthur Pratt, In Re: Estate of Mary Armstrong Pratt - E2003-02213-COA-R3-CV View
Knox County - Marjorie Delapp, Mary Sherrod, and Elsie Caton ("Plaintiffs") sued their brother, Arthur David Pratt ("Defendant") claiming, in part, that Defendant exercised undue influence over their mother, Mary Armstrong Pratt ("the Deceased") to induce the Deceased to make a will in Defendant's favor. After a jury trial, judgment was entered holding the Deceased was competent to make the will, that a confidential relationship existed between Defendant and the Deceased, and that the will was not the last will and testament of the Deceased. Defendant appeals claiming, in part, that the Trial Court erred in allowing testimony regarding his alleged racial prejudice to be introduced and in failing to grant a mistrial after reference was made to his alleged sexual misconduct. Defendant also argues there is no material evidence to support the jury's verdicts of confidential relationship and undue influence and that the Trial Court erred in denying his objection to the entry of judgment. We affirm

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Cases posted the week of 06/14/2004
Lani Arnold v. Terry Davis - M2003-00620-COA-R3-CV View
Davidson County - This case involves the interpretation of certain provisions of a Trust Instrument. The trial court found a latent ambiguity in the Instrument, allowed extrinsic evidence, and granted Appellee's Motion for Summary Judgment. Appellant appeals. We affirm.

James Ray Bartlett v. Gail Corder - M2003-00863-COA-R3-CV View
Lincoln County - An inmate who was convicted and sentenced for passing worthless checks filed suit against six officers of the court for conspiracy, violation of his constitutional rights, and various derelictions of duty. The plaintiff asked the trial court to sanction the defendants by impeachment and/or disbarment. He also asked for $33 million in monetary damages. The trial court dismissed the Complaint for failure to state a claim for which relief can be granted. We affirm.

Judith Harber vs. Leader Federal - W2003-01523-COA-R3-CV View
Shelby County - This case involves the wrongful payment of funds by Defendant over Plaintiff's forged signature. The lower court found that the majority of Plaintiff's claims are barred by former Tenn. Code Ann. § 47-4-406, which places a one-year limit on certain claims by bank customers seeking to recover losses occasioned by unauthorized signatures. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

David Sharp vs. State - W2004-00044-COA-R3-CV View
An inmate filed a claim with the Claims Commission contending negligence on the part of the Tennessee Department of Correction in miscalculating his sentence credits. The Commission dismissed for lack of jurisdiction, the inmate appealed, and we affirm.

In re: DMD & JLA - W2003-00987-COA-R3-PT View
Shelby County - The trial court denied Appellants' petition for termination of Mother's parental rights and returned physical custody of children to Mother. We reverse and remand for determination of whether termination is in the best interests of the children. We vacate the order returning physical custody to Mother.

In matter of: T.S.R. - W2003-01321-COA-R3-JV View
Shelby County - The juvenile court entered an order declaring Appellant the father of T.S.R. and ordered child support. Appellant failed to pay child support and incurred an arrearage of $27,051.68. Appellant petitioned the court for Rule 60.02 relief from the final order and requested a blood paternity test. The DNA test indicated that Appellant was not the father. The trial court relieved Appellant of his ongoing child support but required him to pay the child support arrearage. For the following reasons, we affirm.

In Re: Petition for Change of Name, Charles Grannis - M2003-01242-COA-R3-CV View
Davidson County - The trial court denied a Petition for Name Change. Among the allegations the Petitioner raises on appeal are that the master or special judge who denied his Petition was biased against him and that she was not authorized to act as a judge. We do not find sufficient evidence of bias in the record to justify reversal on that ground. We do find that the record is devoid of proper documentation of the basis of the master's authority to sit as a substitute judge. However, we need not determine whether reversal is required because of that deficiency, because we find that the trial court failed to articulate and the record fails to demonstrate any legally sufficient reason for denying the Petition. Therefore, the denial and dismissal of the Petition must be vacated.

Stephanie Hartman vs. Daryl Hartman - E2003-02380-COA-R3-CV View
Rhea County - The divorce judgment approved a MDA which provided that the minor children would reside with their father in Rhea County while mother was working in Atlanta. When not working, mother had custody. Two years after the divorce, father petitioned for custody, alleging that at the time of the divorce it was contemplated that mother would return to Tennessee and share equal parenting time. Mother counter-claimed for custody. Father was awarded primary custody. The judgment is vacated and the case is remanded for a hearing on the comparative fitness of each parent.

Tammy Joiner v. James Griffith - M2003-00536-COA-R3-JV View
Montgomery County - This appeal involves a child support and visitation dispute. Mother and Father, never married, have two minor children. The parties lived together from 1997 until March 2001, when Father was arrested for domestic assault. Father moved out of the residence. Mother filed a complaint seeking to be the primary residential parent, requested child support and arrearages and asked for temporary support and attorney fees. The juvenile court placed primary custody of the children with Mother, set visitation, and ordered Father to pay $4,000 a month in child support plus $31,586 in arrearages. Father appealed, taking issue with visitation, child support, arrearages, and the court's failure to make findings of fact regarding the alleged domestic assault. Mother appealed claiming the court erred by rejecting most of her claim for her attorney fees. We affirm the trial court's determinations concerning child support and visitation, modify the offset against the arrearage owed for child support, and reverse and remand Mother's request for attorney fees. Further, we find that the trial court is not required to make written findings of fact concerning the domestic abuse charge because the alleged domestic assault was not against a minor.

Jennifer Whitley v. Richard Whitley - M2003-00045-COA-R3-CV View
Giles County - This is a divorce case involving the classification and division of property in a marriage of relatively short duration. Prior to marriage, the parties lived for a few months with the husband's parents before moving to a farm purchased by the husband with a down payment provided by his parents. The wife gave birth to the parties' child a few months after the move, and the parties subsequently married. Twenty-two months later, the wife filed for divorce. Both before and during the marriage, the wife assisted the husband with his cattle farming operation as well as with improvements to the property. The trial court found the farm to be marital property under the doctrine of transmutation, assigned it a value of $100,000, and awarded it to the husband. The trial court awarded most of the farm equipment and forty-eight head of cattle to the husband as his separate property and divided the marital property between the parties, with the husband awarded the remainder of the farm machinery and all but eleven head of cattle, and the wife awarded a 1987 Chevrolet Cavalier, the remaining cattle, and a cash judgment of $27,000 for her "substantial contributions to the farm and farming operation." The husband was assigned sole responsibility for the marital debt. The husband appeals, arguing that the trial court improperly classified, valued, and distributed the property. We conclude that the trial court correctly found that the farm was marital property, but erred in its valuation of the farm and in its distribution of the marital property. Accordingly, we modify the trial court's cash judgment to the wife to $11,886.50, which represents one-half of the equity in the farm at the time of the divorce and one-half of the unaccounted-for proceeds from the husband's sale of cattle in violation of an automatic injunction in the case.

Anna Miller vs. Eduardo Miller - W2003-00851-COA-R3-CV View
Madison County - This appeal arises from a divorce action. We affirm in part, reverse in part, and remand.

Carol Hazen vs. John Hazen - W2002-00778-COA-R3-CV View
Shelby County - Wife filed the present divorce action seeking, inter alia, alimony. The trial court awarded Wife alimony in futuro based upon a perceived need rather than a demonstrative need. For the following reasons, we reverse.

Gary Baker v. Roane State Community College - M2003-01163-COA-R3-CV View
Davidson County - This case involves the timeliness of a grievance filed by Appellant, an employee of Roane State Community College. The hearing officer determined that such grievance was not filed within the limitations period. Appellant appealed this decision to the Chancery Court of Davidson County, which affirmed the decision of the hearing officer. Appellant now appeals to this Court and we affirm.

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Cases posted the week of 06/07/2004
In Re: D.C.L & T.H.L. - E2003-00937-COA-R3-JV View
Knox County - The trial court terminated the parental rights of G.L. and his wife, S.L., to their children, D.C.L. and T.H.L. The court awarded guardianship of the children to their maternal grandmother, S.P. The children’s father appeals. We affirm.

Barbara Rodgers vs. Charles Rodgers, Jr. - E2003-01902-COA-R3-CV View
Blount County - Appellant filed a petition to reduce his child support obligation following his loss of employment as a mechanical engineer and his inability to find other employment. Relief was denied, notwithstanding that two children had attained their majority, and the petition was dismissed. Judgment reversed and case remanded.

Lloyd Sweezy vs. Kathy Sweezy - E2003-00970-R3-CV View
Hamilton County - Husband proposed that the marital residence be sold, with the proceeds used for the payment of marital debts. The proposal was accepted but Husband complains on appeal that some of wife’s debts were not marital debts. Judgment of contempt vacated. Remained of judgment affirmed.

Albert Thompson vs. Johnny Sanders - W2003-00139-COA-R3-CV View
Shelby County - The issue in this case is whether we have subject matter jurisdiction over this appeal. The plaintiff sued the defendants for, among other things, breach of contract, fraud, and intentional infliction of emotional distress. On July 15, 2002, the trial court entered an order granting summary judgment in favor of the defendants. Thirty-two (32) days later, on August 16, 2002, the plaintiff filed a motion to alter or amend the judgment. The trial court denied the motion to alter or amend, and the plaintiff now appeals. This Court, sua sponte, asked the parties for supplemental briefs regarding whether the appeal was timely. In light of the undisputed facts, we must hold that the plaintiff's motion to alter or amend was untimely and, consequently, that the plaintiff's notice of appeal was untimely. Therefore, we must dismiss this appeal for lack of subject matter jurisdiction.

Allen Blankenship vs. Gibson County. - W2003-00735-COA-R3-CV View
Gibson County - This is a zoning case. The property owner applied to re-zone the property from agricultural to business. The Tennessee Department of Economic and Community Development and the county planning commission recommended that the County Commission deny the property owner's application. The County Commission voted to deny the application. The plaintiff/appellant property owner filed a complaint for declaratory judgment in chancery court, seeking to overturn the decision. The defendant/appellee County Commission filed a motion for summary judgment, which was granted. The property owner now appeals. We affirm, finding no genuine issue of material fact and that the County Commission had a rational basis for its decision.

Jeffrey Hopmayer v. Aladdin Industries - M2003-01583-COA-R3-CV View
Davidson County - Plaintiff filed suit alleging Defendant breached its employment contract by failing to provide Plaintiff with phantom units when Plaintiff was terminated without cause. Defendant denied that Plaintiff's phantom units had vested, and therefore, Plaintiff was not entitled to any phantom units at the time of his termination. The trial court found that the letter memorializing the Defendant's offer of employment was sufficiently definite and met the other requirements for a valid contract, including mutual assent. The trial court also found that the terms of the employment contract did not include any vesting requirements for Plaintiff's phantom units. As a result, the trial court found that Defendant had breached its employment contract and awarded Plaintiff the value of his phantom units contained in the employment agreement plus pre-judgment interest dating back to Plaintiff's termination. Defendant appeals. We affirm.

In Re: B.B. & T.S.B. - M2003-01234-COA-R3-PT View
(Concur) - View
Perry County - This appeal involves a petition filed by the Department of Children's Services to terminate the parental rights of Mother to two of her minor children. The trial court granted the petition and Mother appeals the decision. Because we find there was not clear and convincing evidence of a ground for termination, we reverse the judgment.

Joann Glassell vs. Richard Glassell - E2003-01602-COA-R3-CV View
Knox County - Joann Mallinak Glassell ("Plaintiff") was represented by attorney James M. Crain ("Crain") throughout divorce proceedings she filed against Richard Lee Glassell ("Defendant"). After a trial, the Trial Court ordered the equity from the sale of the marital residence to be divided equally between the parties. The Trial Court then applied various off-sets to the amount awarded Plaintiff, thereby reducing the net amount of Plaintiff's recovery to $0.00. The Trial Court concluded that Crain's attorney's fee lien was lower in priority to the various off-sets. Crain appeals, claiming the Trial Court improperly subordinated his attorney's fee lien to the off-sets and that his lien should be given priority. We modify the judgment of the Trial Court and affirm as modified.

State Resources Corp. vs. Thomas Talley - W2003-01775-COA-R3-CV View
Crockett County - Appellee purchased Appellant's overdue Note from FDIC, who was receiver of The Bank of Alamo. Appellee sought to enforce the Note and trial court entered Judgment for Appellee. Appellant contends that Appellee had no right to enforce the Note because Appellee was not a holder in due course. Since no defenses to enforcement were raised by Appellant, the question of whether Appellee is a holder in due course is irrelevant. We affirm.

Lillian Griffis v. Davidson County Board of Education - M2003-00230-COA-R3-CV View
Davidson County - This is an appeal from the grant of Appellee's Motion for Summary Judgment, involving the interpretation of a 1908 Deed, which created a fee simple determinable with a possibility of reverter. Finding that the reversionary language was triggered upon the property ceasing to be used as a classroom facility, we reverse and grant summary judgment to the non-moving Appellants.

Lance Lanier v. Hubert Bane - M2000-03199-COA-R3-CV View
Smith County - Plaintiff guest passenger appeals the trial court's denial of recovery in his action against his host driver for injuries suffered in a one car accident. The jury found him to be 50% responsible for his own injuries and upon such verdict the trial court entered judgment for the defendant. We affirm the action of the trial court.

Raymond Rollins. v. The Electric Power Board - M2003-00865-COA-R3-CV View
Sumner County - This appeal concerns a complaint of negligence filed by the appellants Raymond and Sharon Rollins against the Electric Power Board of Metropolitan Nashville and Davidson County (NES). The alleged negligence involved the cutting and removal by NES of three trees on the appellants' property. The Rollins appeal the trial court's final order in favor of NES. We affirm.

Diann Parnell vs. Victor Ivy - W2003-00023-COA-R3-CV View
Madison County - This is a legal malpractice case. The client filed suit in federal court against a municipality for the death of her husband under the Governmental Tort Liability Act and U.S.C. § 1983. The federal court dismissed the GTLA claim but retained the §1983 claims. The client dismissed her attorneys, hired new counsel and filed the GTLA claim in state court. The state court dismissed the GTLA claim because, while the GTLA claim was pending in federal court, the applicable statute of limitations expired. The client sued her original attorneys for malpractice. Shortly thereafter, the client settled the remaining § 1983 claims against the municipality. The defendant attorneys filed a motion for summary judgment in the malpractice case, arguing that the settlement with the municipality on the §1983 claims mandated dismissal of the legal malpractice claim. The trial court granted the summary judgment motion. The client appealed. We reverse, holding that the damages sought in the legal malpractice lawsuit are separate and distinct from the damages sought in the underlying lawsuit, and therefore settlement of the underlying lawsuit does not shield the former attorneys from liability.

Vinson Alexander Jr. vs. Jackson Radiology Assoc. - W2002-02702-COA-R3-CV View
Madison County - The trial court imposed sanctions on Plaintiff, who undisputedly spoiled evidence and lied in a sworn deposition, and dismissed Plaintiff's cause of action. On appeal, Dr. Alexander argues that dismissal was improper. We affirm.

Anna Peycheck vs. Donald Rutherford - W2003-01805-COA-R3-JV View
Shelby County - Appellant filed petition seeking credit against child support arrearage for necessaries provided to minor children. The trial court granted Appellant $10,236.50 in credit toward his support arrearage. Appellant appeals asserting that the trial court erred in giving a percentage of necessaries provided. Finding that the Appellant did not meet his burden of proof in his claim for necessaries and that the evidence in record preponderates against the trial court's findings, we reverse in part, affirm in part and remand.

National Insurance v. Katherine Simpson - M2002-03109-COA-R3-CV View
Rutherford County - This appeal involves a dispute regarding an exclusion from liability coverage in an automobile insurance policy for family members. Following a collision injuring its insured's half brother, the insurer filed suit in the Chancery Court for Rutherford County seeking a declaratory judgment that the exclusion applied to the half brother's claims against the insured. Following a bench trial, the trial court determined that the exclusion did apply to the half brother's claims. Both the insured and her half brother have appealed. We affirm the trial court's construction of the insurance policy.

Larry Parrish vs. Robert Marquis - E2004-00875-COA-RM-CV View
Knox County - In this malicious prosecution case the Appellants, Larry E. Parrish and Larry E. Parrish, P.C., contend that the Knox County Circuit Court erred in granting motions for summary judgment filed by the Appellees, Robert S. Marquis and Ronald C. Koksal. We reverse the Circuit Court's judgment of dismissal as to Mr. Koksal and we affirm the Circuit Court's judgment of dismissal as to Mr. Marquis on alternative grounds.

In Re: C.D.C., Jr. - E2003-01832-COA-R3-PT View
Greene County - This is a proceeding to terminate the parental relationship between father and son. The mother's relationship had been previously terminated at her request. The trial court terminated the father's parental relationship on statutory grounds of non-support, non visitation, and best interests. Father essentially argues that his son, who was born February 12, 1996 in Texas, was hidden from him, thereby frustrating his efforts to support or visit him. The trial court found that the Respondent had little credibility, that he had no permanent address, and that he failed to keep anyone apprised of his address for the last four years. Judgment affirmed.

Howard & Suzanne Levy v. James & Rhonda Franks, Lindsey Butler & Tennessee Valley Homes - M2002-02730-COA-R3-CV View
Williamson County - This case involves a dispute between neighbors. The plaintiffs owned a one-acre parcel of property in a rural setting almost completely surrounded by a sixteen-acre parcel of property owned by the defendants. The defendant larger landowners began building structures and storing equipment in an escalating commercial use of their property. The plaintiff small landowners complained to county officials that the defendants' use of their property constituted a zoning violation. The ensuing dispute between the two landowners was marked by the defendants engaging in threatening and intimidating behavior and the plaintiffs repeatedly complaining to authorities and incessantly documenting and videotaping the defendants' activities. Finally, the plaintiffs sued the defendants for, among other things, malicious harassment, outrageous conduct, civil conspiracy, and malicious prosecution. The trial court found in favor of the plaintiffs on the malicious prosecution claim but declined to award punitive damages. The trial court dismissed the remaining claims. The plaintiffs appeal. We affirm the dismissal of the plaintiffs' claims of malicious harassment and civil conspiracy. We reverse the dismissal of the plaintiffs' claim for outrageous conduct, finding that the defendants' behavior rose to the level of outrageous conduct, and remand for an award of damages on this claim. Finally, we reverse the denial of an award of punitive damages on the plaintiffs' malicious prosecution claim.

Kay Dulin vs. Michael Dulin - W2002-02758-COA-R3-CV View
Shelby County - Father of minor child appeals the trial court's order finding him in contempt of court, assessing arrearages of child support and attorney fees on the ground that the court lacked personal jurisdiction in the original divorce action and all subsequent proceedings. We affirm.

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Cases posted the week of 05/31/2004
Wanda Sandlin v. George Sandlin - M2003-00775-COA-R3-CV View
Putnam County - Wife filed for divorce alleging irreconcilable differences or, in the alternative, that Husband was guilty of inappropriate marital conduct. The trial court granted Wife an absolute divorce on the basis of Husband's stipulated inappropriate marital conduct. The trial court further ordered a distribution of marital property and debt, awarded wife alimony in futuro and attorney's fees, and required Husband to maintain a life insurance policy to secure his alimony obligation. Husband appeals. We affirm the award of alimony in futuro, distribution of marital property and debt, and the award of attorney's fees as alimony in solido. However, we vacate the requirement to provide life insurance and remand.

Parris Lester v. Cracker Barrel - M2003-02409-COA-R3-CV View
Wilson County - This appeal concerns a restaurant's liability for the conduct of an employee who verbally abused and bumped a customer. The customer filed suit against the restaurant in the Circuit Court for Wilson County seeking damages for intentional infliction of emotional distress. The trial court granted the restaurant a summary judgment and the customer appealed. The sole issue on appeal is whether the employee was acting within the scope of his employment when he harassed and bumped the customer. Because we find as a matter of law the employee was not acting within the scope of his employment, we affirm the summary judgment.

Kevin Demers v. Walter Whittenburg - M2003-00184-COA-R3-CV View
(Concur) - View
Robertson County - This case involves two Rule 12.02(6) motions to dismiss converted to motions for summary judgment through the filing of additional affidavits with Plaintiff's response to these motions. Although the trial court dismissed all claims against Defendants for failure to state a claim under Rule 12.02(6), we must review the evidence using a Rule 56 motion for summary judgment standard. Plaintiff alleged numerous business torts, conspiracy, intentional infliction of emotional distress, and defamation in this action against Defendants. However, Plaintiff failed to provide any evidence from which a jury could return a verdict in favor of Plaintiff on any count alleged. The trial court also granted Rule 11 sanctions against Plaintiff. The judgment of the trial court is affirmed, but on summary judgment grounds.

Dana Friedenstab v. Martha Short - M2003-00603-COA-R3-CV View
(Dissent) - View
Williamson County - The plaintiffs bring this appeal from the trial court's summary judgment in favor of the defendant. We affirm.

Cheryl O'Brien v. Rheem Mfg. - M2003-00530-COA-R3-CV View
Montgomery County - In this appeal an unsuccessful plaintiff seeks review of a jury verdict approved by the trial court, in favor of the defendant manufacturer. We affirm.

State v. Jamie Burnette - M2003-01742-COA-R3-PT View
Lincoln County - This appeal involves the juvenile court's termination of parental rights to two children, A.L.B. (d.o.b. 10/25/96), and B.L.B. (d.o.b. 12/01/98). Appellant argues that the trial court's findings regarding abandonment of the children, persistent conditions, and the children's best interests are unsupported by clear and convincing evidence. We affirm the trial court.

John McVoy v. Mary Ann Parks - M2003-01841-COA-R3-CV View
Sumner County - This appeal involves an order of protection. After several public confrontations with his former girlfriend, the petitioner sought an order of protection from the Chancery Court for Sumner County. The trial court granted the order of protection, and the former girlfriend appealed to this court. Because the evidence does not preponderate against the trial court's decision, we affirm.

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Cases posted the week of 05/24/2004
Carla Downing vs. Joseph Downing - W2003-00561-COA-R3-CV View
Davidson County - This is an appeal from the trial court's order, which increases Appellant/Father's child support obligation to an amount consistent with the Tennessee Child Support Guidelines. Appellant contends that the trial court erred in failing to consider his extensive visitation with the child in declining to deviate downward from the guidelines. We affirm.

Author Turner vs. State - W2003-02889-COA-R3-CV View
This case involves a claim for negligence brought by Appellant, an inmate in the custody of the Tennessee Department of Correction. Appellant filed a claim with the Tennessee Division of Claims Administration, which was subsequently transferred to the Tennessee Claims Commission. The Commission determined the claim was time barred, and Appellant appealed this decision to this Court. We reverse and remand for further proceedings.

Clifford Johnson v. Nissan North America - M2003-01165-COA-R10-CV View
Rutherford County - Former employee of Nissan North America, Inc. filed this action against Nissan alleging retaliatory discharge following his filing of a workers' compensation claim. A discovery dispute ensued wherein Nissan objected claiming the requests were not relevant and that it would violate the Americans with Disabilities Act if it provided the discovery. The trial court modified the discovery and ordered Nissan to: 1) list every employee terminated between August 2000 and January 2002 and the reason for the termination; 2) identify which of these employees filed workers' compensation claims or received workers' compensation benefits within one year preceding their respective termination; and 3) identify each employee that Nissan or its agents either conducted surveillance on or requested that surveillance be conducted on between August 2000 and January 2002. We reverse, finding that the plaintiff failed to make a compelling showing of relevance and failed to establish that the value of the discovery sought, which pertained to information contained in the personnel and medical records of current and former employees of Nissan, outweighed the privacy interests of those individuals who were not parties to this action.

Estate of Lisa Duncan v. State of Tennessee - M2003-01105-COA-R3-CV View
This case involves the death of a passenger who was involved in a high speed police chase. The Tennessee Claims Commission granted summary judgment to the State and passenger's personal representative appealed, primarily on the ground that the Claims Commission erred in granting summary judgment prior to an opportunity to take the discovery deposition of the involved highway patrolman. We affirm.

Robert Carrier vs. Speedway Motorsports - E2002-02724-COA-R3-CV View
Sullivan County - This case involves a dispute as to exactly what property was leased to the plaintiff, Robert L. "Larry" Carrier. In January, 1996, the plaintiff and his family sold their 100% stock ownership interest in National Raceways, Inc., to the defendant, Speedway Motorsports, Inc. ("SMI"). National Raceways, Inc., operated the well-known Bristol Motor Speedway ("the Speedway"). In conjunction with the sale, the parties executed a lease agreement, wherein SMI leased back a portion of the Speedway's property to the plaintiff. The plaintiff filed suit against SMI and Bristol Motor Speedway, Inc., the new corporate name of National Raceways, Inc., claiming that the defendants had breached the lease by interfering with the plaintiff's leasehold interest. Specifically, the plaintiff claims that the lease covers a 15.54 acre parcel of land lying adjacent to the grandstand at the racetrack. The defendants answered, denying that they had breached the lease and asserting that the subject matter of the lease is limited to three buildings on the 15.54 acre tract rather than to the entire tract. The defendants also filed a counterclaim for an unpaid debt. Following a bench trial, the court found in favor of the plaintiff, concluding that the lease involves the entire parcel of land rather than just the three buildings. It ultimately awarded the plaintiff damages of $2,401,728. The trial court dismissed the defendants' counterclaim. From this judgment, both sides appeal. We affirm the dismissal of the counterclaim, but reverse the trial court's judgment in favor of the plaintiff on the original complaint. That complaint is dismissed at the plaintiff's costs.

Randall C. Hagy vs. Commisssioner, Tennessee Department of Labor and Workforce Development and Tennessee Distributuion, Inc. - E2003-01685-COA-R3-CV View
Sullivan County - Employee was discharged from employment for refusing to follow orders. The Commissioner denied employee unemployment benefits, and employee appealed to the Court which affirmed the ruling of the Commissioner. On appeal to this Court, we affirm.

Dr. Kenneth F. Freels, vs. Joseph C. Taylor & Associates - E2003-01788-COA-R3-CV View
Knox County - Plaintiffs sought recovery of cashier's check on theory of bailment or resulting or constructive trust. From an adverse Judgment by the Chancellor, plaintiffs appealed. We affirm.

Jerry Rogers vs. David & Vanetta Davis - E2003-01240-COA-R3-CV View
Polk County - The trial court awarded plaintiff judgment for rents on property occupied by defendants, but refused judgment for defendants for improvements made by them to plaintiff's property. On appeal, we reverse and award defendants judgment for improvements made to the property and modify plaintiff's judgment for the rental value of land.

Chris Birdwel vs. David Psimer - E2003-01270-COA-R3-CV View
Sullivan County - Action for Judgment on loan was defended on grounds defendant sold note to plaintiffs. The Trial Court held agreements violated statute of frauds and plaintiff failed to prove loan. On appeal, we reverse.

Wanda Moody vs. Timothy Hutchison - E2003-01325-COA-R3-CV View
Knox County Commissioner Wanda Moody ("Plaintiff") made a Public Records Act request for numerous documents in the possession of Timothy Hutchison, the Sheriff of Knox County ("Defendant"). Defendant responded and provided some, but not all of the requested documents. Plaintiff eventually sought to have Defendant held in criminal contempt claiming at least fifty of his responses to the various document requests were false. After a trial on the criminal contempt charges, the Trial Court concluded Defendant made "at least six" false representations which amounted to criminal contempt, and imposed the maximum fine of $50 for each offense, for a total of $300. Defendant appeals claiming, among other things, that the proof failed to establish that he was guilty beyond a reasonable doubt of criminal contempt. We affirm the judgment of the Trial Court.

Anna Floyd vs. Johnny Tesar - E2004-00025-COA-R3-CV View
Sevier County - Anna Faye Floyd, Michael Everette Floyd, and David Earl Floyd, minor children, by and through their mother and natural guardian Linda Floyd ("Plaintiffs"), sued Johnny Tesar, Marsell Tesar, Jobey Green, Wilburn Green, and Martha Lee ("Defendants") to quiet title to land in Sevier County, Tennessee. After a bench trial, the Trial Court held, inter alia, that the minor Plaintiffs are the true owners of the land, and that Defendants Johnny Tesar and Marsell Tesar had committed fraud upon the Plaintiffs, knowingly clouded Plaintiffs' title, and trespassed upon Plaintiffs' land. The Trial Court also awarded Plaintiffs damages and attorney's fees against Defendants Johnny Tesar and Marsell Tesar. Defendants appeal but raise no specific issues on appeal and point to no error in the record. We affirm.

Nicko Santiago vs. Joy Cooper - W2003-01882-COA-R3-CV View
Weakley County - Plaintiff, a minor student, brought suit for damages arising from an eye injury he sustained during recess at school. The Defendants, which are both governmental entities, moved for summary judgment, arguing that they are immune from suit and that Plaintiff cannot, as a matter of law, establish the elements of his negligence claim. After conducting a hearing, the trial court granted the Defendants summary judgment on both grounds. For the following reasons, we affirm the ruling of the lower court.

Leroy Mosby vs. Memphis Transit - W2003-00451-COA-R3-CV View
Shelby County - This case arises out of a motor vehicle accident, which resulted in the death of Deceased, a fare-paying passenger of a bus. Plaintiffs, Deceased's heirs, brought a wrongful death action against the driver of the Cadillac in the bus/car collision and Defendants, the driver of the bus and the Memphis Area Transit Authority. At the close of Plaintiffs' proof, the trial court granted Defendants' motion for involuntary dismissal pursuant to Rule 41.02(2) of the Tennessee Rules of Civil Procedure. For the reasons stated below, we affirm the decision of the trial court.

Ruffin Building Systems. vs. Larry Varner - E2003-01677-COA-R3-CV View
Sullivan County - Larry Gene Varner and Todd Duncan ("Defendants") contracted with Joel Frazier d/b/a Timberline Construction Company ("Timberline") for construction of a building on Defendants' property. Timberline then contracted with Ruffin Building Systems, Inc. ("Plaintiff") for Plaintiff to provide certain materials for the construction. Defendants paid Timberline, but Timberline never paid Plaintiff. Plaintiff sued Defendants on its materialman's lien. The Trial Court granted Defendants summary judgment holding, inter alia, that Plaintiff did not comply with the notice requirements of Tenn. Code Ann. § 66-11-115. Plaintiff appeals. We affirm.

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Cases posted the week of 05/17/2004
State in its own behalf, and for the use and benefit of the Metropolitan Government of Nashville v. Delinquent Taxpayers as shown on the 1998 Real Property Tax Records, Mark R. Feger - M2001-00531-COA-R3-CV - M2001-00531-COA-R3-CV View
Davidson County - This appeal involves a dispute over a statutory right of redemption by a creditor from a real property delinquent tax sale. The plaintiff, James E. Brown appealed the chancery court decision overruling the plaintiff's Motions to Intervene and Dismiss and granting of the statutory right of redemption. His argument is that: (1) the chancery court is an improper jurisdiction for failure of proper due process, (2) the defendant's attempt to exercise the power of eminent domain and the use of Tennessee Code Annotated §§ 67-5-2701, et seq violate the federal and state constitutions, and (3) the defendants engineered a fraudulent sale of the plaintiff's rightful property. The chancery court overruled the plaintiff's motion to dismiss, holding the plaintiff did not provide adequate proof of improper jurisdiction, or due process, or unconstitutionality of controlling statute, or fraud. We affirm the chancery court's decision.

First National of North America v. Michael Marks - M2002-03104-COA-R3-CV View
(Dissent) - View
Davidson County - Plaintiff First National of North America, LLC (FNNA) brought a claim for unjust enrichment against Michael Marks. Marks had refinanced his home mortgage through Morgan International, which was owned by Jerry Levine. The purpose of the refinancing was to pay off an existing mortgage owing to a third party and to obtain net proceeds of approximately $44,000 for Marks' other needs. Unknown to Marks, the funds for Marks' loan were provided to Levine by FNNA pursuant to a Commercial Loan and Servicing Agreement between FNNA and Levine. The refinancing transaction closed and Marks received net proceeds of $44,394 at the closing; however, Morgan International/Levine failed to pay off the pre-existing mortgage owing to First American National Bank. For almost a year Marks was unaware that the pre-existing mortgage was not paid off for Levine secretly paid the monthly installments owing to First American. Once Levine ceased making the payments, First American initiated foreclosure proceedings against Marks. Marks paid the arrearage and maintained the mortgage with First American. Marks sued Levine and Morgan International. FNNA intervened as a party plaintiff against Levine and Marks. FNNA obtained a judgment based on contract against Levine but Levine was discharged in bankruptcy without any recovery to FNNA. Thereafter, FNNA obtained a judgment against Marks for $38,000, on the theory of unjust enrichment, plus pre-judgment interest. Marks appealed claiming he had a contractual relationship with FNNA that precluded a recovery under unjust enrichment. We affirm.

Tonya Ray v. William Ray v. Stephen Staggs - M2003-01158-COA-R3-CV View
Davidson County - Natural father of minor twin children appeals trial court's final order of custody and visitation on multiple grounds, alleging primarily that (1) the trial court erred in awarding visitation to stepfather; (2) the trial court erred in refusing to change children's surname to that of their natural father; and (3) the trial court improperly based its opinion on a sealed psychological report. We affirm in part, reverse in part, and remand.

Freeman Industries vs. Eastman Chemical - E2003-00527-COA-R9-CV View
Sullivan County - In this antitrust case, Freeman Industries LLC ("Freeman") sued Eastman Chemical Company ("Eastman") and others for damages, alleging that the defendants engaged in the illegal price-fixing of sorbates, a generic label for several food preservatives. Freeman, who purchased products containing sorbates from entities in New York State, brought suit under the Tennessee Trade Practices Act ("the TTPA") and pursuant to a theory of unjust enrichment. In addition, Freeman sought class certification for all other individuals and entities similarly situated in thirty-five states, including New York, but, significantly, not including the state of Tennessee. Following a hearing on the defendants' motion to dismiss, the trial court granted the motion with respect to the TTPA claim, holding that the TTPA does not apply to indirect purchasers or out-of-state transactions. At a subsequent hearing, the trial court denied Freeman's motion for class certification; and also denied the defendants' motion for summary judgment on Freeman's unjust enrichment claim. Both sides appeal. Because we find that the trial court reached a conclusion that is contrary to the decision of this court in the case of Sherwood v. Microsoft Corp., No. M2000-01850-COA-R9-CV, 2003 WL 21780975 (Tenn. Ct. App. M.S., filed July 31, 2003) (Tenn. R. App. P. 11 application pending) – which decision was released after the trial court rendered its decision – we modify the trial court's judgment by deleting that portion of the court's decision holding the TTPA does not apply to indirect purchasers. In all other respects, we affirm the trial court's judgment.

Beverly Miller vs. United Automax - W2003-01394-COA-R3-CV View
Shelby County - Appellants sued Appellee on theories of common law misrepresentation and violation of the Tennessee Consumer Protection Act, arising from the sale of a used vehicle. A jury returned a verdict for Appellants on both theories and Appellants elected to take their remedy under the common law claim, which included an award of punitive damages. The trial court denied Appellants' prayer for attorney fees, which were not available under the common law remedy but only under the Consumer Protection Act claim. Having been denied attorney fees, Appellants requested that they be allowed to amend their election of remedies. This request was denied. Appellants appeal. We affirm.

Dana Ellis vs. Susan Ellis - E2003-01327-COA-R3-CV View
Hamilton County - Several years after Dana Bryan Ellis ("Father") and Susan Lynn Ellis (Johnson) ("Mother") were divorced, Mother filed a petition seeking to increase Father's child support payments. Father filed a counterclaim seeking a downward deviation in his child support payments claiming he was exercising visitation in excess of that contemplated by the Child Support Guidelines. After a trial, the Trial Court found Father's annual gross wages were $80,000 and set current child support payments based on that amount. The Trial Court also awarded retroactive child support to the date the petition for modification was filed and concluded the retroactive support also should be based on Father's current salary of $80,000. The Trial Court denied Father's request for a downward deviation after concluding it was in the best interests of the children not to reduce Father's child support payment. Father appeals. We affirm in part, vacate in part, and remand.

Nissan North America v. Linda Haislip - M2003-00813-COA-R3-CV View
Davidson County - The trial court determined that, under Tennessee Code Annotated § 67-5-904, Nissan North America was not liable for ad valorem tax on personal property owned by Nissan but used by its contractors to make component parts for Nissan. We reverse.

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Cases posted the week of 05/10/2004
In Re: Adoption of T.A.M. - M2003-02247-COA-R3-CV View
(Concur) - View
Lincoln County - This appeal involves the termination of the parental rights of an incarcerated biological father of a five-year-old child. The child's mother and her new husband filed a petition in the Chancery Court for Lincoln County seeking to terminate the biological father's parental rights and to approve the new husband's adoption of the child. Following a bench trial, the trial court entered an order on August 29, 2003 granting the petition to terminate the biological father's parental rights on the ground of abandonment. The biological father appealed. We concur with the trial court's conclusion that the father abandoned his child by willfully failing to support and visit the child and that terminating the biological father's parental rights is in the child's best interests. Accordingly, we affirm the judgment.

Troy Sterling Fuller v. Janie Marie Nicholson - M2003-00083-COA-R3-CV View
Wilson County - This is primarily a child custody dispute. The father and mother lived together with their infant son and the mother's two older sons in the mother's house trailer before moving into a house purchased by the mother with a down payment provided by the father. When their son was approximately eight months old, the parties separated and thereafter began a contentious legal battle over his custody. Following a bench trial, the trial court awarded the mother primary custody, granted the father broad visitation rights, and denied the father's request for the return of his down payment and closing costs, finding there was no equity in the house. The father appeals the trial court's award of primary custody to the mother and its denial of his request for the return of his down payment and closing costs. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

In matter of K.G. - W2003-00809-COA-R3-PT View
Dyer County - Mother appeals the trial court's order terminating parental rights and decree of guardianship. We affirm and vacate, in part.

Edwin Earl Sanborn v. Carlotta Joan Sanborn - M2003-00418-COA-R3-CV View
Davidson County - After twenty-five years of marriage, Father filed for divorce asserting irreconcilable differences and inappropriate marital conduct due to Mother's alleged prescription drug abuse. Father requested that he be the primary residential parent of the parties' two minor children. Mother filed an answer and counterclaim also requesting to be the primary residential parent. The trial court granted Father the divorce but designated Mother as the primary residential parent. Father appealed, asserting that the trial court erred in designating Mother as the primary residential parent and in setting the residential schedule. We affirm.

Stanley Desgranges dba Stanley's Excavating vs Gordon L. Meyer, et al - E2003-02006-COA-R3-CV View
Knox County - The primary and dispositive issue before us is one of first impression in Tennessee. We are asked to decide whether false statements made in a notice of lien duly served on the property owners, properly filed for recordation, and thereafter followed by the timely filing of a suit to enforce the lien, all pursuant to the provisions of Tenn. Code Ann. § 66-11-101, et seq., are absolutely privileged. We hold that, in such a case, the statements in the lien are made in the course of a judicial proceeding, are absolutely privileged, and, hence, cannot form the basis for a suit for damages on a libel of title theory. We reverse the judgment of the trial court holding to the contrary and dismiss the original defendants' counterclaim seeking damages for libel of title.

Allie Jane Collins, et vir vs. Dana Edwards, M.D., et al - E2003-01508-COA-R3-CV View
Hamblen County - The trial judge dismissed this medical malpractice action on the ground that the statute of limitations had run. On appeal, we vacate and remand.

Donna S. Young vs. Fred C. Hartley, M.D., et al - E2002-02925-COA-R3-CV View
Washington County - Donna S. Young ("Plaintiff") sued Fred C. Hartley, M.D. ("Defendant") claiming that during a tubal ligation, defendant negligently performed additional surgeries upon plaintiff's vaginal area without her consent and that those extra surgeries caused plaintiff to suffer physical and emotional damage. After trial, the jury returned a verdict in defendant's favor. Plaintiff appeals raising, among other things, several questions regarding the admission of evidence at trial. We affirm.

Ruskin A. Vest, Jr., et al. v. Duncan-Williams, Inc. - M2003-02690-COA-R3-CV View
Maury County - Plaintiffs sued defendant alleging that defendant was negligent, breached its fiduciary duty, and committed fraud and state securities act violations in brokering the sale of municipal bonds to plaintiffs. Defendant filed a motion to dismiss for lack of subject matter jurisdiction and improper venue based upon an arbitration agreement plaintiffs entered into with a third party. The trial court denied defendant's motion to dismiss and defendant appealed. After reviewing the record, we hold that defendant has failed to prove that it is an intended third party beneficiary of the arbitration agreement. We affirm.

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Cases posted the week of 05/03/2004
Arthur McRae et al vs. Knox County, et al - E2003-01990-COA-R3-CV View
Knox County - This is a zoning dispute involving billboards. Its posture is not traditional because the Board of Zoning Appeals and the owner of the billboards are in agreement. The Board granted the owner two variance from a zoning ordinance; this action was challenged by the Appellees who claimed that the erection of the billboards adversely affected the value, use, and enjoyment of their property, which vested them with a special interest and entitlement to file a petition for certiorari for a judicial review of the Board's action. The Writ was granted, and a hearing resulted in a finding that the action of the Board of Zoning Appeals was unlawful and capricious.

In Re: Nellie Elizabeth Crowell - M2002-02285-COA-R3-CV View
Davidson County - This is a Will construction case. The decedent's Will provided that her estate would be distributed to her husband. However, the husband predeceased the decedent leaving no issue. The only remaining provision in the Will provided that her estate would be distributed to certain orphan's homes if she and her husband died at the same time. The trial court found it unreasonable to construe the Will to require simultaneous death and distributed the estate to the orphan's homes. We hold that the Will contains a failed condition resulting in intestate succession. We reverse and remand.

Jonathan Inman vs. Wilbur Raymer - E2003-01964-COA-R3-CV View
Cumberland County - The real property addressed in the complaint was sold at a tax sale on March 20, 2002. That sale was confirmed by a judgment of the trial court entered April 4, 2002. The sale was prompted by the apparent nonpayment of 1996 property taxes. When the defendants, Wilbur S. Raymer and wife, Lois O. Raymer ("the previous owners"), failed to avail themselves of their right to redeem the property "within one (1) year after entry of [the] order of confirmation of the tax sale" see Tenn. Code Ann. § 67-5-2702(a) (2003), the plaintiffs, Jonathan Inman and wife, Keena Inman ("the present owners") – who had received title to the property as a result of a Clerk & Master's Deed dated April 4, 2003 – filed a complaint against the previous owners to quiet title. The trial court, acting sua sponte, dismissed the complaint, but did so without prejudice. The court concluded that Tenn. Code Ann. § 67-5-2504(d) (2003) prevents the present owners from suing to quiet title prior to the expiration of the three-year period set forth in that statute. The present owners appeal. We affirm.

Stacey Hill vs. Donna Hill - E2003-02173-COA-R3-CV View
Hamilton County - Donna Elizabeth Frazier Hill ("Mother") filed a complaint against Stacey G. Hill ("Father") seeking to modify the parties' Permanent Parenting Plan ("the parenting plan"). Father responded and filed a counterclaim. Mother proposed a revised plan that would reduce Father's visitation time and increase his child support obligation. The trial court denied Mother's revised plan with respect to the oldest child, but granted her proposed changes with respect to the other children. The trial court designated Father as the primary residential parent of the oldest child and increased his child support obligation for the younger children; however, the trial court refused to order Mother to pay child support for the oldest child on the ground that Father "has not required the [oldest] child to comply with the original Parenting Plan based on the child's expressed desires." Father appeals, arguing that the trial court erred in deviating from the Child Support Guidelines ("the Guidelines") based upon the ground espoused by the court. We vacate so much of the trial court's order as absolves Mother of any obligation to support the oldest child in the custody of Father.

Waynell C. Burnett vs. Teddy Sundeen - E2003-01404-COA-R3-CV View
Blount County - In this litigation arising out of an automobile accident, Waynell C. Burnette ("the plaintiff") filed a motion asking the trial court to sanction Teddy Sundeen and Elhame Dauti ("the defendants") for a discovery abuse. Acting under the authority of Tenn. R. Civ. P. 37.02, the court entered a judgment by default against both defendants and, in the same order, awarded the plaintiff damages of $100,000. The defendants appeal, contending that they were not afforded proper notice of the plaintiff's intention to raise the issue of damages at the hearing on the motion for sanctions. We vacate so much of the trial court's order as awards the plaintiff unliquidated damages of $100,000.

Danie Hamilton vs. T & W of Knoxville- E2003-02004-COA-R3-CV View
Knox County - By special verdict the jury found that the defendant automobile dealer willfully and knowingly violated the Consumer Protection Act by selling the Plaintiff a used Lexus automobile that had been wrecked but nevertheless was a certified vehicle under the manufacturer's guidelines. More than a year later - after the Plaintiff himself wrecked the vehicle and drag-raced it various times - he discovered that some panels had been re-painted, leading to the conclusion that the vehicle had been wrecked before he purchased it. The dealer agreed to repurchase the vehicle which was left in its charge, but the Plaintiff, after consulting counsel, returned to the Defendant's place of business and removed the vehicle. The jury assessed damages of $4000.00, remitted to $2500.00. The Plaintiff moved for treble damages and attorney fees: the Defendant moved for judgment NOV, because the issue of "willful and knowing" violation of the Tennessee Consumer Protection Act is a question of law for the court. The motion for judgment NOV was granted. Plaintiff was awarded $5000.00 attorney fees which he claims is inadequate. We affirm.

Melissa Hoffmeister vs. John Kenneth Hoffmeister - E2003-02022-COA-R3-CV View
Knox County - The custody of a four-year old boy is the pivotal issue in this case. The Chancellor found that the father was the better qualified to be the primary residential custodian of his son following a recitation of the bizarre conduct of the mother. We affirm.

Kelvin Shoughrue vs. St. Mary's Medical - E2003-00116-COA-R3-CV View
Knox County - In this appeal in a medical malpractice lawsuit, the Appellants, J.D. Lee and the law firm of Lee, Lee & Lee, contend that the Knox County Circuit Court erred in its award of attorneys' fees. We affirm the judgment of the Trial Court and remand.

John Johnson vs. Bernice Wade - W2003-02020-COA-R3-CV View
Gibson County - This case involves a dispute over the ownership of certain real property abutting the parcels of two neighboring landowners in Gibson County, Tennessee. The trial court rendered a judgment for Appellee finding that Appellee owned the disputed property. Additionally, the trial court awarded Appellee her attorney's fees incurred in defending against and counter-suing the Appellant. We affirm the trial court and remand for further proceedings consistent with this opinion.

Patricia Dell vs. Cecelia Wright - W2003-00461-COA-R3-CV View
Shelby County - Plaintiff brought suit alleging that Defendant committed medical malpractice in the treatment of Plaintiff's deceased father. Upon conclusion of the trial, the jury found that Plaintiff knew or should have known that Defendant's negligence caused injury to her father more than one year prior to commencement of Plaintiff's suit. Consequently, the trial court entered judgment on the verdict for Defendant, finding that Plaintiff's action is barred by the applicable one-year statute of limitations. Plaintiff appeals the verdict of the jury. For the following reasons, we affirm.

Dorothy Bryant vs. Damon Bryant - W2003-01906-COA-R3-CV View
Obion County - This case involves an antenuptial agreement. Prior to their marriage, the husband and wife entered into an antenuptial agreement which stated that each party waived his or her interest in any property acquired after the marriage in the individual spouse's name. After a nearly twenty-year marriage, the wife filed for divorce. During the divorce proceedings, the wife argued that the antenuptial agreement should not affect the trial court's division of property acquired during the marriage. The trial court enforced the antenuptial agreement, awarding all property held in the husband's name to the husband, regardless of whether it would otherwise have been classified as marital property. The wife appeals. We affirm, finding that the wife waived her interest in the property under the antenuptial agreement and that the evidence does not preponderate against either the enforceability of the agreement or the trial court's division of property.

Samuel Humphreys vs. Richard Selvey - W2002-02788-COA-R3-CV View
Shelby County - Plaintiff, Tennessee buyer, filed complaint in Shelby County, Tennessee circuit court against South Carolina seller for fraudulent, unlawful, and tortious conduct in connection with contract for purchase of antique soda dispensers. Seller filed motion to dismiss, alleging as grounds lack of personal jurisdiction and improper venue, and trial court granted motion on both grounds. Buyer appeals trial court's finding that there were insufficient contacts to establish personal jurisdiction of seller. We reverse and remand.

James Peach vs. Robert Medlin - W2003-02152-COA-R3-CV View
Benton County - Land owner filed complaint alleging trespass and seeking the removal of structures and signs erected by appellants encroaching upon his property. Owner further sought injunction prohibiting appellants from continued, unauthorized use of roads running across his property. The trial court found that appellants had an easement for use of one of two roads. The trial court's final order granted owner's request for attorney's fees. Both parties raise issues on appeal. We affirm in part and reverse in part.

Joeann Davis vs. Frankie Davis - W2002-02521-COA-R3-JV View
Shelby County - Appellant seeks relief, under Tenn. R. Civ. P. 60.02, from final order setting child support obligations. Finding no extraordinary circumstances, extreme hardship, or excusable neglect, we affirm.

Jimmie Lipford vs. First Family Financial - W2003-01208-COA-R3-CV View
Hardeman County - Plaintiffs in this lawsuit seek damages for fraud and under the Tennessee Consumer Protection Act. The trial court excluded parol evidence and awarded Defendant summary judgment. We reverse.

Mohammad Refieetary vs. Maryam Rafieetary - W2003-00121-COA-R3-CV View
Shelby County - This case concerns issues of alimony, child support, and dependency exemptions, arising from the divorce of Husband and Wife. Following a hearing, the trial court awarded Wife rehabilitative alimony, ordered Husband to pay 80% of Child's uninsured medical expenses over $500, awarded each party the dependency exemption for Child on alternating years, and ordered Husband to pay for Child's violin lessons and Boy Scout expenses. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Dept. Children Serv. vs. Pamela Atkison - W2003-02109-COA-R3-PT View
Gibson County - This case involves the termination of the parental rights of Mother and Father over Child. Only Mother appeals the Juvenile Court's decision. Specifically, the Juvenile Court found clear and convincing evidence to terminate Mother's parental rights on the basis of abandonment, persistent conditions, and noncompliance with the permanency plan. In addition, Mother appeals the trial court's denial of her motion to transfer the case and have the issue presented to a jury. Finally, Mother asserts the trial court judge erred when he did not recuse himself. For the following reasons, we affirm the decision of the trial court.

Dept. Children Serv. vs. Sandra Lilly - W2003-02156-COA-R3-PT View
Lauderdale County - This case arises from the termination of parental rights of Mother and Father. Only Mother has appealed the decision of the trial court, terminating her parental rights on the grounds that (1) she abandoned Child by failing to visit, (2) she abandoned Child by failing to provide more than token support, and (3) the conditions which led to Child's removal still persist. Mother appeals arguing that the State of Tennessee Department of Children's Services failed to carry its burden of proof for these grounds. In addition, Mother argues that the Department of Children's Services failed to prove that such termination of parental rights is in the best interest of Child. Finally, Mother argues the trial court committed prejudicial error when it allowed the rebuttal testimony of a witness in violation of the sequestration rule. For the following reasons, we affirm the decision of the trial court.

Wayne Jerrolds vs. Robert/Mitsy Kelley vs. Eddie Whitlow - W2003-00739-COA-R3-CV View
Hardin County - This cases involves an action for declaratory judgment regarding an easement for the benefit of a landlocked parcel. The lower court found that an easement does exist and that the owners of the servient parcel are not entitled to monetary damages. On appeal, the owners of the servient parcel maintain that the lower court demonstrated bias in its comments from the bench and, further, that it erred in failing to award damages. For the following reasons, we affirm the ruling of the trial court.

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Cases posted the week of 04/26/2004
Children's Services v. Julie & Brian Taylor; In the Matter of: S.A.T. & B.K.T. - M2003-01680-COA-R3-JV View
Wayne County - This case involves the termination of Mother's and Father's parental rights to their children, though only Mother appeals the decision of the Juvenile Court. After conducting a hearing, the lower court found that there was clear and convincing evidence to terminate Mother's parental rights on the bases of persistent conditions, noncompliance with the permanency plan, and abandonment. On appeal, Mother challenges each of the three grounds given for termination. For the following reasons, we affirm the ruling of the trial court.

Child Bride Music v. Jackson - M2002-02789-COA-R3-CV View
Davidson County - Assignee appeals the judgment of the trial court holding it to be bound to a reclamation of rights provision in the contract between its assignor and a grantor of copyright interests. We affirm the judgment of the trial court.

Beth Collins v. James Coode - M2002-02557-COA-R3-CV View
Montgomery County - This appeal involves a dispute regarding the post-divorce move by a primary residential parent from Clarksville to Knoxville. Upon receiving notice of the planned move, the non-residential parent petitioned the Chancery Court for Montgomery County to prevent the move or to change custody. The trial court conducted a bench trial and denied the petition. On this appeal, the non-residential parent asserts that the court applied the wrong relocation standards because it mistakenly concluded that the parents had not been spending substantially equal amounts of time with their children. We conclude that the record supports the trial court's conclusion that the parents had not spent substantially equal time with the children, and therefore, we affirm the judgment.

John Jay Hooker v. Don Sundquist - M2003-02042-COA-R3-CV View
Davidson County - This case involves Rule 11 sanctions. The plaintiff filed a lawsuit challenging the practice of serving meat and drink at political fund raisers, alleging that the practice violates Article X, section 3 of the Tennessee Constitution. The defendants filed a motion to dismiss, based in part on the fact that the plaintiff had previously filed similar lawsuits against other defendants upon the same constitutional grounds, and that these prior lawsuits had been dismissed. The trial court granted the defendants' motion to dismiss. The defendants then filed a motion for sanctions pursuant to Rule 11 of the Tennessee Rule of Civil Procedure. This motion was denied. The defendants appealed, and this Court reversed the denial of sanctions and remanded the case to the trial court. On remand, the trial court imposed as a sanction a screening mechanism whereby any complaint filed by the plaintiff within the next two years must be reviewed by a special master to ensure that it is not legally frivolous or duplicative. The plaintiff now appeals that order, claiming that the sanction imposed violates his constitutional rights. We affirm, concluding that the sanction imposed is reasonable and does not deprive the plaintiff of his constitutional rights.

Gilbert Smith v. Betty Darmohray - M2003-00236-COA-R3-JV View
Rutherford County - In this appeal a father seeks review of the juvenile court's refusal to modify his child support obligation. We affirm.

Karen Thomas v. Robert Mayfield - M2000-02533-COA-R3-CV View
Montgomery County - This appeal challenges the trial court's dismissal of the Plaintiff's action, re-filed after the expiration of the initial statutory period of limitation. We affirm the trial court and deny Appellant's Motion for Transfer pursuant to Tennessee Code Annotated section 16-1-116.

In Re: B.N.S. - M2003-02524-COA-R3-PT View
Marion County - This appeal involves the termination of the parental rights of a twelve-year-old child. The Hamilton County Juvenile Court placed the child in the custody of her uncle and aunt because she was chronically absent from school. The uncle and aunt later moved to Marion County. After the uncle and aunt decided that they no longer desired to have custody of the child, the Marion County Juvenile Court placed the child in the custody of the Department of Children's Services. Approximately fifteen months later, the Department filed a petition in the Marion County Juvenile Court to terminate the biological parents' parental rights. The juvenile court granted the termination petition after overruling the mother's objection that the petition should not have been filed in Marion County. The child's mother has appealed. We have determined that the order must be reversed because venue for this termination proceeding does not lie in Marion County.

Elizabeth Oliver v. Marc Oliver - M2002-02880-COA-R3-CV View
Davidson County - This appeal involves a father's effort to obtain primary physical custody of his now twelve-year-old daughter. Approximately three months after the parties' divorce, the father filed a petition in the Circuit Court for Davidson County seeking to hold the mother in criminal contempt for interfering with his visitation and for alienating their daughter. He later amended his petition to seek primary physical custody. Following a bench trial, the trial court held the mother in contempt but declined to change custody from the mother to the father. The father has appealed. We have determined that the trial court did not err by denying the father's petition to change custody.

Castleton Capital Co. v. Lucius Burch - M2001-01597-COA-R3-CV View
Davidson County - The Plaintiff filed suit seeking to recover a deficiency on a loan executed by the Defendant and another left owing after foreclosure upon real estate. The Defendant had purchased a parcel of real estate from a company in which he was a director, and had assumed responsibility for repayment of a loan secured by that real estate. The Defendant denied liability, and alleged mutual mistake and negligent misrepresentation surrounding the loan against the lender because the loan documents he signed contained language regarding cross-collateralization involving a separate parcel of real estate formerly owned by the company in which the Defendant was a director, which real estate was sold two days prior to assumption of the loan obligations by the Defendant. Following a bench trial, the Chancellor granted judgment for the Plaintiff for $134,127.65 and attorneys' fees totaling $73,417.37, for a total judgment of $207,545.02. The Defendant appealed. We affirm.

Great River Insurance v. Edison Automation - M2001-01635-COA-R3-CV View
Davidson County - The Plaintiff filed suit for Declaratory Judgment seeking the order of the Court declaring that losses suffered by the insured were not covered losses under a general policy of business insurance. At issue is the interpretation of the insurance contract and a determination as to whether insurance coverage existed where the insured expended money and time fabricating parts for a custom project upon the mistaken belief that it had obtained a sub-contract, but where no such agreement existed inasmuch as the purchase order upon which the insured relied was forged by an employee of the insured. Motions for Summary Judgment were filed by each party. The Trial Court granted the insurance company's motion for Summary Judgment, from which the insured appealed. For the reasons stated herein, we affirm the Trial Court, and also determine that Declaratory Judgment should be granted in favor of the insurance company, determining that no coverage exists for the loss suffered by the insured.


William York v. Board of Probation and Parole - M2003-00822-COA-R3-CV (Rehear) View
Davidson County - The State of Tennessee has filed a Petition to Rehear in this case asserting that the February 17, 2004 decision of this Court is in conflict with Davis v. Maples, No. M2002-02564-COA-R3-CV, 2003 WL 22002660 (Tenn.Ct.App. Aug. 25, 2003).

Patrick Lawson vs. Bridget O'Malley - W2003-00080-COA-R3-JV View
Shelby County - This case involves the subject matter jurisdiction of Juvenile Court. The mother and the father were divorced by final decree entered in Chancery Court in 1990. The final Chancery Court decree provided that the mother would have custody of the parties' two children, and that the father would pay child support to the mother. Subsequently, the father filed a dependency and neglect action in Juvenile Court, and he was awarded permanent custody of the children. Subsequently, he filed a petition in the Juvenile Court below for child support. The Juvenile Court granted the father's petition, ordering the mother to pay child support to the father. The mother now appeals. We reverse, finding that the Juvenile Court did not have subject matter jurisdiction to decide matters of child support between these parties, because the Chancery Court had previously assumed jurisdiction over such issues.

Charlie Spell III/CNS Mgmt. vs. Patti LaBelle - W2003-00821-COA-R3-CV View
Shelby County - Plaintiff sued Defendant for breach of contract. Defendant filed a motion to dismiss the complaint based upon an arbitration provision contained in the parties' contract. The trial court entered an order staying litigation pending arbitration but found the site provision, providing that all disputes shall be settled by arbitration in Chicago, Illinois, unconscionable. The trial court reformed the parties' contract so that the arbitration would be governed by Tennessee law and occur in Memphis, Tennessee. Defendants appealed this decision. We reverse in part, affirm in part and remand.

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Cases posted the week of 04/19/2004
Gloria Windsor v. DeKalb County Board of Education - M2002-00954-COA-R3-CV View
Dekalb County - This appeal involves an attempt by a dismissed tenured teacher to obtain common-law certiorari review of her dismissal. After voluntarily dismissing her own Petition for Review properly filed pursuant to Tennessee Code Annotated section 49-5-513, she challenges the chancellor's Order dismissing her Petition for Common Law Writ of Certiorari. We affirm the action of the trial court.

Howard Fisher v. State - M2003-01007-COA-R3-CV View
An inmate in the custody of the Department of Correction filed a claim in the Tennessee Claims Commission for the loss of seventy-eight cartons of cigarettes, which he alleged were removed from his prison cell during a search. The Commission denied his claim. We affirm the Claims Commission.

In Re: A.M.F. and Z.T.F.; Dept. of Children's Srvcs. v. Lisa Frazie - M2003-01276-COA-R3-PT View
Maury County - This is a termination of parental rights case. The parents appeal from the order of the Juvenile Court of Maury County, terminating their parental rights. Specifically, the parents assert 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.

In Re: M.E.W. & J.W.W. - M2003-01739-COA-R3-PT View
Lincoln County - This appeal involves a petition filed by the Department of Children's Services to terminate the parental rights of Mother to her two minor children. The trial court denied the petition, and the Department appeals. We have determined that the trial court's judgment must be vacated because the trial court failed to make the specific findings of facts and conclusions of law regarding the children's best interest required by Tenn. Code Ann. § 36-1-113(k).

Monumental Life Ins. v. Linda Donoho - M2003-00269-COA-R3-CV View
Wilson County - In this interpleader action, two former spouses of the decedent who are mothers of the decedent's three surviving children filed conflicting claims under two marital dissolution agreements alleging beneficial interests in a $50,000 life insurance policy. One claimed an interest for herself; the other claimed an interest for her two children. The matters in dispute arise from inconsistencies in marital dissolution agreements resulting from the decedent's two divorces, and pertain to the duty of the decedent to maintain life insurance and the beneficiary designations. The trial court granted one of two competing motions for summary judgment ruling against the second wife by dividing the proceeds equally among the decedent's three children. We reverse and modify holding that the second wife, not the decedent's third child, was the designated beneficiary of the disputed policy pursuant to the second marital dissolution agreement and that the decedent's first two children had vested interests in the insurance proceeds as mandated by the first marital dissolution agreement.

Dept of Children's Srvcs v. Juanita Culbertson; In the Matter of W.J.R.C. and S.D.H. - M2003-01700-COA-R3-PT View
Marshall County - This is a termination of parental rights case. Mother appeals from the order of the Juvenile Court of Marshall County, terminating her parental rights. Specifically, 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.

Rita Werne vs. Robert Sanderson - W2003-02118-COA-R3-CV View
Shelby County - The trial court found Plaintiff was the owner of disputed stock, but had failed to prove monetary damages. We affirm in part and remand for further proceedings regarding damages.

Lauderdale Co. Bank vs. Lisa Wiggins - W203-01479-COA-R3-CV View
Lauderdale County - Plaintiff Lauderdale County Bank filed a declaratory judgment action to determine the obligations of the parties arising from its payment of a forged check. The trial court awarded summary judgment in favor of Defendant Newcourt Financial, holding Newcourt Financial was entitled to the proceeds of the check. Plaintiff appeals. We reverse.

Kenneth Martin v. Martha Martin - M2002-02350-COA-R3-CV View
Sumner County - After a sixteen-year marriage and two children, Husband and Wife both filed for divorce. Wife stipulated that Husband was entitled to a divorce. After hearing the evidence, the trial court fashioned a parenting plan which named Mother the primary residential parent with visitation for Husband; accepted the parties' stipulation with respect to the marital property; divided the remaining contested marital property; and ordered the parties to pay their own attorney's fees. Husband appeals. We affirm the judgment of the trial court.

Ronald Satterfield vs. Renata Bluhm - E2003-01609-COA-R3-CV View
Knox County - Plaintiff's claims for defendants aiding and abetting the State in terminating him and for libel and slander, tortious interference with his employment contract, outrageous conduct, and negligence were dismissed in the Trial Court by summary judgment. Plaintiff has appealed. We affirm the Trial Court's Judgment.

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Cases posted the week of 04/12/2004
JJ & TK Corp. v. City of Fairview - M2003-00087-COA-R3-CV View
Williamson County - In this case the defendant, the Board of Commissioners of the City of Fairview, declined to grant a certificate of compliance to the plaintiffs, who sought to operate a retail liquor store at the entrance of Bowie Nature Park in Fairview, Tennessee. The plaintiffs contend they met all the legal requirements in effect at the time of their application; and that the defendant based its decision on a pending ordinance which required a minimum distance of 1000 feet between liquor stores and public parks. The trial court granted summary judgment for the defendant. We reverse the decision of the trial court.

Daniel Stevenson v. Tracy Stevenson - M2002-02970-COA-R3-CV View
Rutherford County - This appeal arises from the trial court's award of primary residential custody of the parties' minor children to their father. We affirm.

Nelson Foster vs. State - E2003-02740-COA-R3-CV View
Sullivan County - Plaintiff's civil rights action against an Assistant District Attorney for prosecutorial misconduct was dismissed by the Chancellor. On appeal, we affirm.

Alice Atkins vs. State - E2003-01255-COA-R3-CV View
The Claims Commissioner awarded damages for personal injuries to claimants on grounds the State was liable under Tennessee Code Annotated § 9-8-307(a)(1)(I). On appeal, we affirm.

Helaine Richberger vs. The West Clinic - W2003-00141-COA-R3-CV View
Shelby County - Plaintiff filed medical malpractice action against clinic, treating nurse, and supervising physician for injuries suffered as a result of alleged negligent chemotherapy treatment. Trial court granted summary judgment in favor of defendants, finding that registered nurse was not qualified as an expert on the issue of medical causation, and further noting that the deposition testimony of lone expert physician failed to establish that the plaintiff's injuries were caused by the negligence of the defendants. Plaintiff appeals. We affirm.

James Ward vs. Susan Ward - W2003-01630-COA-R3-CV View
Shelby County - Wife appeals trial court's ruling on remand that former husband did not dissipate substantial marital assets through extramarital relationship, specifically asserting that the trial court failed to properly consider or apply the two-prong test set forth by the appellate court for determining whether dissipation has occurred. We affirm.

Guy Varnadoe vs. Shelton McGhee Jr. - W2003-01341-COA-R3-CV View
(Dissent) - View
Shelby County - Following a remand by this Court, the trial court entered judgment in favor of the Plaintiff in the amount of $10,464.80 plus post-judgment interest from the time of filing of the trial court's original judgment. Defendants appeal. We affirm.

Kenneth Mitchell v. Homer Chance - M2002-01239-COA-R3-CV View
Humphreys County - This appeal involves a dispute between neighbors regarding the use of a county road in rural Humphreys County. After one of the landowners began to use the road to cross the neighboring landowners' property, the neighboring landowners erected barricades in the road and later filed a trespass action in the Chancery Court for Humphreys County. The landowners who desired to use the road counterclaimed to establish their right of way along the road. Following a bench trial, the trial court sided with the landowners desiring to use the road. On this appeal, the landowners who desire to prevent the use of the road take issue with the trial court's refusal to consider parol evidence regarding the meaning of the references to the road in the deeds. We affirm the trial court's decision that the references to the road in the deeds are not ambiguous, as well as its decision to admit extrinsic evidence to determine the location of the road. We have also determined that the evidence fully supports the trial court's decision regarding the location and dimensions of the road.

Sierra Summerall v. Department of Correction - M2002-02033-COA-R3-CV View
Davidson County - This appeal arises from a prisoner disciplinary proceeding at the West Tennessee State Penitentiary. After a disciplinary board punished him for possession of marijuana, the prisoner filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County asserting that the Department of Correction had deprived him of due process by substantially departing from its Uniform Disciplinary Policies. The trial court dismissed the petition because it was not timely filed. The prisoner has appealed. We affirm the trial court.

Julie Jiles vs. State - E2003-01005-COA-R3-CV View
Julie Jiles ("Plaintiff") and her husband, Bryan Jiles, sued the State of Tennessee ("State") for medical malpractice regarding medical care Plaintiff received at the Sevier County Health Department. The case was tried before the Claims Commission and an Order of Judgment was entered in March of 2003, holding, inter alia, that the standard of care was not breached and dismissing Plaintiff's case. In dicta, the Judgment also suggested that another health care provider was the proximate cause of Plaintiff's damages. Plaintiff appeals. We affirm.

City of Chattanooga vs. Cinema 1 - E2003-01038-COA-R3-CV View
Hamilton County - David Franklin ("Franklin") operates an adult bookstore in Chattanooga known as Cinema 1, Inc. ("Cinema 1"). Numerous undercover visits by Chattanooga Police Department officers discovered a significant amount of sexual activity happening at Cinema 1. This sexual activity violated the Chattanooga city ordinance regulating adult oriented establishments. Based on police reports detailing what the undercover officers observed at Cinema 1, the Mayor of Chattanooga revoked Franklin's adult oriented establishment license, a decision later affirmed by the Chattanooga City Council and then the Trial Court. The primary issues on appeal concern whether the Chattanooga ordinance regulating adult oriented establishments provides the necessary procedural safeguards required by the First Amendment to be considered facially constitutional under the federal Constitution. We conclude the licensing scheme provides the necessary First Amendment procedural safeguards. We further conclude that there was sufficient evidence presented to revoke Franklin's license. The judgment of the Trial Court, therefore, is affirmed.

AT&T Corp. v. Ruth Johnson - M2003-00148-COA-R3-CV View
Davidson County - This appeal concerns a challenge to the Commissioner's franchise and excise tax assessment. On cross-motions for summary judgment the chancellor found for the Commissioner. We affirm.

Steven Elliott v. Ginger E