Court of Appeals Opinions - 3^rd Quarter 2005

The following Opinions are available for download:

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Cass posted the week of 09/26/2005
Thomas Albert Dolan v. Bruce Poston, et al. - M2003-02573-COA-R3-CV View
Davidson County - The plaintiff is a former University of Tennessee faculty member. He was dismissed from his position after the defendant corporate officer circulated a letter to government officials accusing him of using numerous deceptions in the procurement of a grant from the United States Department of Energy. The plaintiff's pro se defamation lawsuit named the defendant in both his individual and his corporate capacities. The trial court dismissed the claim against the defendant in his individual capacity under Tenn. R. Civ. P. 12.02(6) and certified the dismissal as final under Tenn. R. Civ. P. 54.02 so it could be appealed. We reverse the trial court.

CMH Homes, Inc. vs. Darrell McEachron - E2004-02189-COA-R3-CV View
Blount County - Plaintiff purchased real property at delinquent tax sale and in a declaratory judgment action the Trial Court held the sale included a mobile home located on the land. On appeal, we reverse.

Robin Craster vs. Thrifty Rent-A-Car System, et al - E2004-01948-COA-R3-CV View
Knox County - The parties filed Motions for Summary Judgments. The Trial Court granted defendants' Motion which stated defendant was not a proper party and insurance policy issued to plaintiff did not cover plaintiff's damages. On appeal, we affirm.

Carol Murphy vs. Jennifer Ann Janowitz - E2005-00736-COA-R3-CV View
Knox County - Respondent appeals to set aside an Order of Protection entered by the Trial Court. She argues the evidence does not support the Order. We affirm.

Ron Searcy, D/B/A Restoration Contractors v. John Herold - M2003-02037-COA-R3-CV View
Sumner County - This appeal involves a dispute between a homeowner and a contractor over the validity of an arbitration award. After the arbitrator awarded the contractor $52,725, the contractor filed a complaint in the Circuit Court for Sumner County to confirm the award and to recover the costs of the arbitration. The homeowner challenged the award on the ground that he had not been afforded a hearing. The contractor filed a motion for summary judgment, a motion to dismiss the homeowner's counterclaim, and a motion for attorney's fees under the arbitration agreement. The trial court, granting the contractor's motions, confirmed the $52,725 arbitration decision and awarded the contractor $500 in arbitration expenses and $2,205 in attorney's fees. The homeowner has appealed. We have determined that the arbitration award must be vacated because of the arbitrator's failure to provide the parties a hearing before rendering his decision.

Larry & Brenda Morris d/b/a East Tennessee Motors vs. Insurance & Investment Solutions - E2004-02950-COA-R3-CV View
Bradley County - The plaintiffs suffered damage to personal property at a location other than as described in a policy of insurance. They failed in their attempt to recover on the policy, and filed suit against the issuing agency, claiming that the agency knew or should have known that they desired coverage not only at their business address but also at their residence. The signed application listed only their service address, and the loss occurred at their residence. Summary judgment was entered for the defendant.

Gregory Bryant-Bruce, Jr., et al. v. State - M2002-03059-COA-R3-CV View
This appeal involves a dispute between the State of Tennessee and the parents of a profoundly ill infant regarding the State's responsibility for the medical care the child received while in the State's custody. After regaining custody of their child, the parents filed a claim in the Tennessee Claims Commission against the Tennessee Department of Human Services and certain of its employees, alleging, among other things, that the Department and its employees had negligently failed to investigate the causes of the child's medical condition and had negligently failed to ensure that the child received proper medical care while he was in foster care. After the Commission dismissed the claim in its entirety, the child's mother perfected this appeal on behalf of her son. She raises only one issue – whether the Commission erred by holding that the doctrine of quasi-judicial immunity barred her claim that the Department and its employees negligently failed to supervise the medical care her child received while he was in foster care. Even though we have determined that the Commission misapplied the doctrine of quasi-judicial immunity in this case, we have concluded, based on the undisputed facts, that the Department was entitled to dismissal of the parents' claim as a matter of law.

Kerry Hibdon v. George J. Grabowski, et al. - M2004-01050-COA-R3-CV View
Warren County - Plaintiff/Appellant owner of jet ski customizing business brought defamation action against defendants alleging libel, civil conspiracy and false light invasion of privacy stemming from statements defendants made about plaintiff, which were published on an Internet news group. The trial court held that venue was proper in Warren County, Tennessee, and that the court had jurisdiction over out-of-state resident defendants. Finding that plaintiff was a public figure for purposes of libel action, that plaintiff could not prove actual malice, and that plaintiff failed to show actual damage, the trial court granted summary judgment in favor of the defendants. Plaintiff appeals. We affirm in part, reverse in part, and remand.

In RE: Zaylen R. - M2003-00367-COA-R3-JV View
Wilson County - This appeal involves a dispute over the custody of a non-marital child. The child's father requested the Wilson County Juvenile Court to designate him as the child's primary residential parent because of the mother's history of substance abuse. Following a bench trial, the juvenile court designated the mother as the child's primary residential parent and established a visitation schedule for the father. The court also ordered the father to pay child support and to maintain insurance for the child. The father asserts on this appeal (1) that the juvenile court's findings of fact were insufficient, (2) that the evidence does not support designating the mother as the child's primary residential parent, and (3) that the court based its decision on the outmoded tender years doctrine. We affirm the juvenile court's order.

Texaco Refining & Marketing v. Department of Environment & Conservation - M2004-00281-COA-R3-CV View
Davidson County - Texaco Refining & Marketing, Inc. applied for reimbursement of remediation expenses pursuant to the Tennessee Petroleum Underground Storage Tank Act. When Texaco's application was denied by the Tennessee Department of Environment and Conservation, Division of Underground Storage Tanks, Texaco filed this Declaratory Judgment action seeking a ruling that it was eligible for reimbursement from the storage tank fund. The Chancery Court granted Texaco's motion for summary judgment from which the Department appeals. We reverse finding Texaco was not in substantial compliance with the Act because it failed to timely report releases of petroleum, and it had no vested right to reimbursement.

Eleanor Bell et al. v. Roger Todd - M2003-00192-COA-R3-CV (Rehear) View
Cannon County - On September 14, 2005, we issued an opinion in this case vacating the trial court's judgment awarding compensatory and punitive damages to the Bell family. On September 21, 2005, the Bell family filed a petition for rehearing and a motion to consider post-judgment facts premised upon the February 2, 2005 convictions of Roger Todd for first degree murder, especially aggravated robbery, and especially aggravated kidnapping. The petition does not explain the reason for the delay in informing this court of these convictions.

William E. Castle v. Department of Correction, et al. - E2005-00874-COA-R3-CV View
Morgan County - This is a personal injury lawsuit filed by William E. Castle ("Plaintiff"), an inmate at the Brushy Mountain Correctional Complex. As a trustee, Plaintiff was allowed to work as a carpenter for the defendant State of Tennessee, Department of Correction (the "State"). Rick Cox Construction Company was a contractor building an addition to the Batley Baptist Church, and Plaintiff and other inmates assisted with this construction. Plaintiff was injured when he fell from a scaffold while working at the Batley Baptist Church. Plaintiff bought this negligence claim against the State, Rick Cox Construction Company, and Batley Baptist Church. The Trial Court granted the State's motion to dismiss based on sovereign immunity. The Trial Court later granted motions for summary judgment filed by the remaining two defendants. Plaintiff appeals, and we affirm.

City-County Federal Credit Union v. Suzanne E. Linboe - E2005-00577-COA-R3-CV View
Monrie County - City-County Federal Credit Union ("Plaintiff") filed suit in the General Sessions Court seeking over $12,000 it claimed was owed on a VISA credit card it had issued to Suzanne E. Linboe ("Defendant"). After Plaintiff was awarded a judgment by the General Sessions Court, Defendant appealed to the Circuit Court. Defendant filed a motion to dismiss and Plaintiff filed a motion for summary judgment. The Circuit Court denied Defendant's motion to dismiss and granted Plaintiff's motion for summary judgment, awarding Plaintiff a judgment for $15,323.10. Defendant appeals, and we affirm.

Tracey Omohundro v. Stephen C. Arnsdorff - E2005-00315-COA-R3-CV View
Hamilton County - The issues in this case are whether the trial court erred in granting a non-custodial parent unsupervised visitation and in limiting the number of witnesses at trial. Father, the custodial parent of the minor child, contends that the trial court's grant of unsupervised visitation to mother is not in the child's best interest and ignores evidence that mother abused the child. Father also argues that the trial court erred in refusing to hear witness testimony as to mother's abuse of the child and as to mother's mendacity. We find that the evidence supports a finding that unsupervised visitation is in the child's best interest and, therefore, the trial court's award of unsupervised visitation to mother was not an abuse of discretion. We further find that the witness testimony excluded by the trial court was cumulative, and therefore the trial court did not abuse its discretion in excluding the witnesses. Accordingly, we affirm the judgment of the trial court and remand.

In Re: MEI, DOB 12/23/97, Jason Allen Ingle and Kerrie Michelle Ingle vs. Elizabeth Faye Ingle - E2004-02096-COA-R3-PT View
Hamilton County - The Trial Court refused to terminate the mother's parental rights to MEI. On appeal, we vacate the Judgment and remand for further proceedings.

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Cass posted the week of 09/19/2005
Edward Gayland Belcher vs. Georgia Hammond Belcher - E2004-02712-COA-R3-CV View
Grainger County - The issue in this post-divorce case is whether there was an accord and satisfaction of a judgment awarded pursuant to a marital dissolution agreement. Georgia Hammond Belcher filed a petition to enforce the parties’ marital dissolution agreement, and to hold her former husband, Edward Gayland Belcher, in contempt for failing to comply with its terms. Mr. Belcher responded that the parties had reached an accord and satisfaction whereby they orally agreed that Mr. Belcher would not pay Ms. Belcher the $10,000 he owed her under the marital dissolution agreement, in return for Mr. Belcher allowing Ms. Belcher to move back into the marital residence and paying her living expenses in their attempt to reconcile. The parties subsequently lived together for approximately 2½ years, during which time Mr. Belcher paid, among other things, Ms. Belcher’s living expenses. After the reconciliation attempt failed, Ms. Belcher filed her motion for contempt and to enforce the marital dissolution agreement. The chancellor ruled that Mr. Belcher proved an accord and satisfaction between the parties, and dismissed Ms. Belcher’s petition. Finding that the evidence does not preponderate against the Chancellor’s decision, we affirm the judgment of the trial court.

In Re: Estate of Wayne Doyle Bennett - E2004-02007-COA-R3-CV View
Knox County - Angela Clabough filed a claim against the estate of Wayne Doyle Bennett, claiming she was his illegitimate daughter. The administratrix of the estate filed an exception to the claim arguing, among other things, that the claim was time barred. After a hearing, the Clerk and Master filed a report recommending to the Chancery Court that the claim be disallowed because it was filed untimely. An exception to the Master’s Report was filed and after a hearing before the Chancery Court, the Chancellor agreed with the recommendation of the Clerk and Master and dismissed the claim as being untimely. We affirm.

Melvin Perry vs. Bruce Westbrooks - W2005-00904-COA-R3-CV View
Lauderdale County - This is a petition for a writ of certiorari filed by a prison inmate. The petitioner prisoner was found guilty on the charge of “failure to participate” in work as instructed by a prison official. He lost his prison job and was sentenced to a brief period of segregation and a $5.00 fine. After exhausting his administrative appeals, he filed an application for a writ of certiorari in the trial court, naming as respondents the warden and the disciplinary board. The trial court granted the respondents’ motion to dismiss the complaint for failure to state a claim upon which relief could be granted. The petitioner now appeals. We reverse and remand to the trial court for issuance of the writ.

Will Henderson vs. Clear Channel - W2004-02903-COA-R3-CV View
Shelby County - This is a defamation case. After listening to a local talk radio show, the plaintiffs filed a lawsuit against the defendants, asserting that the defendants had broadcast defamatory material on the radio show concerning the plaintiffs’ business practices. There was no recording of the talk radio show. In a bench trial, many witnesses testified about statements made on the show. After the trial, the trial court found that there were so many different versions, there was no way to determine what was actually said on the radio program. The trial court concluded that, assuming unflattering statements were made, they did not damage the plaintiffs’ reputations. The trial court also concluded that, even if the statements made were defamatory, the plaintiffs did not prove any injury. The plaintiffs appeal. We affirm, finding that the evidence does not preponderate against the trial court’s decision.

Murel Laughlin vs. Cheryl M. Fillers - E2005-00107-COA-R3-CV View
Greene County - In 1997, a car driven by Cheryl M. Fillers (“Defendant”) crossed into the on-coming lane of traffic and collided with a wrecker driven by Murel Laughlin (“Plaintiff”). Plaintiff sued and the case was tried before a jury. At the close of proof, the trial court directed a verdict on the issue of liability in favor of plaintiff. The jury returned its verdict, and a judgment was entered in accordance with the verdict in September 2004, awarding plaintiff damages for, among other things, damage to his wrecker. Plaintiff filed a motion for new trial or to alter or amend the judgment. The trial court denied the motion for new trial or to alter or amend, and specifically approved the verdict of the jury. Plaintiff appeals claiming that the award for damages to his wrecker was inadequate and insufficient as a matter of law, and that the trial court erred in refusing to grant a new trial based upon alleged improper and inflammatory statements made by defense counsel in the presence of the jury. We affirm.

Ford Motor Credit Company v. Ruth E. Johnson, Commissioner of Revenue, State of Tennessee - M2004-00050-COA-R3-CV View
Davidson County - Ford vehicles leased by its dealers are simultaneously purchased by Ford Credit, a wholly owned subsidiary of the Ford Motor Company. Ford Credit is subject to a franchise tax which is determined by the book value of its tangible personal property owned or used in Tennessee. If the leased vehicles are finished goods inventory, their value is excluded from the calculation of franchise taxes. The trial court ruled that the leased vehicles were not held by Ford Credit for sale, and thus did not qualify as finished goods inventory. Ford Credit appeals. The judgment is affirmed.

Teresa Ann (Woodby) Wilson v. John Gregory Wilson - M2004-02954-COA-R3-CV View
Robertson County - Appellant, Teresa Ann (Woodby) Wilson, filed a motion on September 19, 2005 asking the court to address her request for attorney fees incurred on appeal. Appellant properly raised the issue in her brief and the court failed to address the issue in the opinion filed on September 12, 2005. The Appellant contends she was partly successful on appeal, prevailing on the issue of the rings, and therefore it would be unjust if she were not awarded attorney fees incurred on appeal. While Appellant makes a good point, it must be noted that both parties were partly successful and partly unsuccessful on the more significant issue – that of parenting time. Considering all relevant factors, the court is of the opinion the parties should bear their own costs incurred on appeal, including attorney fees.

Brenda and Stanley Morrison v. Citizen State Bank -  M2004-00263-COA-R3-CV View
Marion County - This is the third action between Stanley Morrison and Citizen State Bank concerning a series of promissory notes and security agreements. In the first action, Citizen State Bank filed a civil warrant in General Sessions Court against Stanley Morrison to recover a deficiency judgment and repossess a truck that was collateral on a series of loans. The bank obtained a default judgment against Morrison and repossessed the truck when Morrison failed to appear in court. Morrison failed to timely appeal the default judgment. Thereafter, Morrison and his wife filed this action challenging the validity of the default judgment and seeking damages for fraud, misrepresentation, and conversion of property, contending four of six promissory notes and security agreements that the judgment was based upon were forgeries. The trial court held this action was barred by res judicata and dismissed it on summary judgment. We affirm the dismissal of this action on the basis of collateral estoppel.

The Travelers Indemnity Company of America, et al v. Moore and Associates - M2004-01233-COA-R3-CV View
Sumner County - The insurer of a general construction contractor brought an action for a declaration that it had no duty to defend or indemnify the contractor against the claims raised against the contractor in a demand for arbitration. The Chancery Court for Sumner County, Tennessee, Judge Tom E. Gray, granted summary judgment to the contractor, holding that the insurer, as a matter of law, had a duty to defend the contractor in the arbitration. The court reserved ruling on whether the insurer had a duty to indemnify the contractor for damages paid as a result of the arbitration settlement until after the arbitration proceeding. This Court affirms the trial court’s judgment in all respects.

Frederick Martin Umans v. Deborah Lynne Umans - M2004-00095-COA-R3-CV View
Davidson County - Appellee, Deborah Umans, filed a Petition to Rehear her request for attorney’s fees incurred on appeal. Because Ms. Umans was required to incur attorney’s fees on appeal to defend child support and alimony and because she took no position with regard to the criminal contempt issue, we agree she is entitled to an award of attorney’s fees. Consequently, based on the record before us, we award Ms. Umans her reasonable attorney’s fees incurred on appeal. We remand to the trial court for determination of the amount of such reasonable fees.

Stanley Arthur Lawson v. Vonda Lea (Lawson) Mattox - M2005-02159-COA-R10-CV View
Lawrence County - The mother has filed a Tenn. R. App. P. 10 application for an extraordinary appeal from an ex parte Emergency Temporary Parenting Plan Order entered by the Chancery Court for Lawrence County on September 6, 2005. The mother asserts the trial court lacked jurisdiction to enter the order because it had transferred the case to the Chancery Court for Rutherford County in 2001. The father now agrees that the trial court lacks jurisdiction. We grant the application for an extraordinary appeal and vacate the Emergency Temporary Parenting Plan Order.

Ada Travis v. Blaise Ferraraccio, et al. - M2003-00916-COA-R3-CV View
Montgomery County - This appeal involves the medical care a now deceased patient received after he severely injured himself in an accident at home. The patient and his wife filed a medical malpractice action in the Circuit Court for Montgomery County against the emergency room physician, the staff physician, and the neurologist who treated him immediately after the accident. Two of the physicians and their employer filed a motion for summary judgment supported by the two physicians’ affidavits that the care they rendered the patient was consistent with the applicable standard of care. After the patient died from a heart attack unrelated to this litigation, the patient’s wife opposed the summary judgment motion with depositions from two out-of-state physician experts and an affidavit from one of them concluding that the conduct of the two defendant physicians violated the standard of care and had caused their patient to suffer permanent quadriplegia. The trial court concluded that the testimony of the wife’s experts was inadmissible under the locality rule and granted the summary judgment motion. The court thereafter denied the wife’s motion to alter or amend which was accompanied by affidavits from both of her experts and certified the order as final pursuant to Tenn. R. Civ. P. 54.02. The patient’s wife has appealed. We have concluded that the trial court erred by excluding one of the wife’s expert witnesses. Accordingly, we vacate the summary judgment.

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Cass posted the week of 09/12/2005
Karissa Renee Josephson Kelley v. John Michael Kelley - M2004-01202-COA-R3-CV View
Davidson County - This is an appeal from a final decree of divorce as it concerns the award of child support. Husband appeals and asserts that the trial court erred in the method used to calculate his child support obligation. The trial court arrived at the child support by averaging three years of Husband’s income as opposed to basing it upon his actual income. Since the trial court made no written finding that Husband was voluntarily underemployed before deviating from the Tennessee Child Support Guidelines, we reverse and remand.

Sammy Hargrove v. State of Tennessee, Department of Safety - M2004-00410-COA-R3-CV View
Davidson County - The appellee’s automobile was forfeited, after notice and hearing, for a violation of the DUI law. He was arrested and indicted for DUI, but an order nolle prosequi was entered. The appellee argues that the forfeiture statute cannot be enforced absent a conviction for DUI. The trial court agreed. Judgement reversed.

Raymond T. Schmidt, Jr. v. Barbara J. Schmidt - M2004-01350-COA-R3-CV View
Montgomery County - This is a petition to modify alimony. The divorce decree required that the husband pay the wife alimony of $1,500 per month for ten years or until she remarries. The husband filed this petition to terminate his alimony obligation, asserting that there had been a material change in circumstances. The wife maintained that the alimony award was alimony in solido and, therefore, not subject to modification. The husband filed a motion for summary judgment on the issue of whether the alimony award was modifiable. The trial court held that the alimony award was alimony in solido, not subject to modification. From that order, husband now appeals. We reverse, concluding that the award was alimony in futuro and, therefore, subject to modification.

Deborah L. Carpenter v. Rick L. Carpenter - M2004-00668-COA-R3-CV View
Sumner County - This appeal involves the financial aspects of the dissolution of a 23-year marriage. The issues contested on appeal include the division of the marital property, the amount and type of alimony awarded, the satisfaction of a certain judgment, the admission of an expert’s testimony, the denial of attorney’s fees and the request for frivolous appeal damages. We affirm the trial court in all respects and deny the request for damages.

Eleanor Bell, et al. v. Roger Todd - M2003-00192-COA-R3-CV View
Cannon County - This appeal arises from a wrongful death suit filed by a murder victim’s family against the person accused of the murder. The victim’s family filed suit in the Circuit Court for Cannon County seeking compensatory and punitive damages from the accused and to set aside the accused’s transfer of his real property to two friends following his arrest. After the accused failed to answer, the trial court granted the victim’s family a default judgment on the question of liability, granted a writ of attachment for the accused’s real property after setting aside the transfer as fraudulent, and ordered a jury trial on the question of damages. Thereafter, the accused filed a motion to set aside the default judgment, an answer, a motion to hold the trial in abeyance, and a motion to release funds to enable him to hire a lawyer. The trial court did not address these motions, and a jury awarded the victim’s family $600,000 in compensatory damages and $80,000 in punitive damages. The accused murderer has appealed. We have determined that the judgment must be vacated because of the trial court’s failure to address the accused murderer’s pending motions before conducting the trial on the question of damages.

Shirley Russell, Ph.D., et al. v. Meharry Medical College - M2004-01049-COA-R3-CV View
Concur - View
Davidson County - Plaintiff, a college professor, appeals the dismissal of her breach of employment contract action upon summary judgment. She was employed by Meharry Medical College for thirty-three (33) years but was not tenured because the tenure program, adopted in 1984, was never implemented. She is seeking entitlement to formal tenure, or de facto tenure. She also seeks damages, claiming she was entitled to but did not receive twelve (12) months notice her contract of employment would not be renewed. The trial court found plaintiff had not attained de facto tenure and had waived her claim for tenure. It also held plaintiff’s employment contract entitled her to six (6) months notice her employment would not be renewed and she the requisite notice. We affirm.

Troy A. Clark v. Jennifer Dawn Clark - M2004-01824-COA-R3-CV View
Davidson County - This is an appeal from a divorce action in which the husband argues that the trial court failed to make an equitable division of the marital estate. Specifically, the husband challenges the trial court’s treatment of certain real property as the wife’s separate property, and he challenges the valuation placed on their vehicles. Finding the appeal meritorious, we reverse and remand for a new division of the marital estate.

Michael Welch vs. Jennifer Welch - W2004-01455-COA-R3-JV View
Madison County - The juvenile court granted Appellee’s Rule 60.02 Motion to vacate its prior order of legitimation. We reverse.

Beverly J. Rouse vs. State of Tennessee - E2004-02142-COA-R3-CV View
Beverly Jane Rouse (“the Claimant”) suffered serious injuries when she tripped and fell on the uneven floor of a roofed, open-air picnic area at Brushy Mountain State Prison. The Claims Commission (“the Commission”) dismissed the Claimant’s action against the State of Tennessee, holding that the uneven floor was not a dangerous condition as that concept is found in Tenn. Code Ann. § 9-8-307(a)(1)(C) (Supp. 2004). The Claimant appeals. We vacate the Commission’s judgment and remand for further proceedings.

Behrouz Amini vs. CTI, Inc., et al - E2004-02083-COA-R9-CV View
Knox County - Behrouz Amini (“Plaintiff”) was employed at CTI, Inc., for over six years when his employment was terminated in January of 1999. Plaintiff claims that after he was terminated, the defendants prohibited him from taking various documents and other items of his property including two written stock option agreements he received while employed by CTI, Inc. Plaintiff claims that the defendants converted various items of his personal and professional property, including his stock option agreements. Plaintiff had ninety days to exercise his stock options after his employment was terminated, but claims he did not exercise these rights because the defendants had converted the stock option agreements which detailed these rights. The Trial Court granted the defendants’ motion for summary judgment. We affirm in part, vacate in part, and remand for further proceedings.

Teri Lynn Cochran v. L.V.R. & R.C., Inc., et al. - M2004-01382-COA-R3-CV View
Coffee County - Plaintiff brought an action for corporate dissolution pursuant to Tennessee Code Annotated § 48-24-301(2)(B). The trial court granted Defendants’ motion to dismiss for failure to state a claim. We affirm in part, reverse in part and remand for further proceedings.

Sharon Ann Cosby v. State of Tennessee Department of Human Services - M2003-02696-COA-R3-CV View
Davidson County - The Tennessee Department of Human Services decided that a divorced mother of four was not eligible for assistance under the State’s Families First Program because she and her former husband shared equal residential placement time with the children. After exhausting her administrative appeals, the mother filed a complaint for judicial review of the department’s decision. The trial court affirmed the department’s action. Because the denial of eligibility was based on a departmental policy not promulgated as a rule under the Administrative Procedures Act, we reverse.

Robert C. deJaeger v. Jennifer deJaeger - M2004-00529-COA-R3-CV View
Wilson County - The parties were divorced based on stipulated grounds. Husband appeals the award of property to Wife. We reverse and remand.

Eatherly Construction Company v. HTI Memorial Hospital D/B/A Memorial Hospital - M2003-02313-COA-R3-CV View
Davidson County - This is a breach of contract action arising from the construction of a water line and pumping station for a new hospital. Eatherly Construction Company filed suit to recover $35,250 for installation of 705 linear feet of twelve-inch ductile iron pipe that was omitted from its bid and $10,000 of retainage funds withheld by the owner, HTI Memorial Hospital Corporation. The hospital denied Eatherly’s claims and filed a counterclaim to recover inter alia liquidated damages of $500 per day for each day the construction was delayed beyond the agreed completion date and attorney fees. The trial court summarily dismissed Eatherly’s bidding error claim of $35,250 and the hospital’s claim for attorney fees. Following a bench trial, Eatherly was awarded the $10,000 retainage while the hospital’s claim for liquidated damages was dismissed. Both parties appealed. We affirm.

Don C. McNeil v. Zaidoun Nofal - M2003-03099-COA-R3-CV View
Davidson County - This appeal arises from the seller’s suit to enforce two notes as partial consideration for a seller-financed purchase of a business and inventory. The purchaser responded alleging fraud and negligent misrepresentation as an affirmative defense and counterclaim respectively. The trial court found in favor of the seller for the full amount of the lesser note, awarding attorney fees and interest as provided therein. The court found in favor of the purchaser on his counterclaim for negligent misrepresentation. In addition, the trial court found comparative fault on the part of the purchaser affecting the negligent misrepresentation damages. The court then offset recovery on the greater of the two notes with the amount of negligent misrepresentation damages awarded. The court denied the seller’s claim for attorney fees and interest on the note. We reverse the trial court’s finding of negligent misrepresentation and its reduction applied to the greater note; we affirm the trial court’s judgment as to the lesser note. The cause is remanded for a determination of attorney fees consistent with this opinion.

Teresa Ann (Woodby) Wilson v. John Gregory Wilson - M2004-02954-COA-R3-CV View
Robertson County - This is an appeal from a divorce action in which the Wife appeals the trial court’s decision regarding the parties’ parenting time with their minor child. Wife also appeals the trial court’s decision to award her engagement and wedding rings to Husband. We affirm the trial court’s ruling as to the parenting plan. As for the engagement and wedding rings, we reverse the judgment as to the wedding rings finding they were a completed gift from Husband to Wife.

Sonya Renee Vaden Ausley v. Dempsey Renea Ausley, Jr. - M2004-01360-COA-R3-CV View
Sumner County - This appeal involves an alimony award granted by the trial court to Plaintiff Sonya Ausley. While the divorce in this case was pending, the trial court ordered Defendant to pay $17,000 to the Clerk and Master of the court after Defendant willfully refused to pay temporary support and further disposed of a $34,000 social security disability settlement in violation of court order. The trial court later granted Plaintiff $5775 from the funds as temporary support. In the final divorce decree, the trial court awarded Plaintiff the remaining $11,225 balance as lump sum transitional alimony. Defendant appeals, arguing that 1) the trial court erred in failing to classify Defendant’s social security benefits as marital or separate prior to ordering its division, 2) the trial court’s order that Defendant pay half of his social security benefits into the Clerk and Master constituted in improper presumption that such benefits were marital property, and 3) that Defendant’s social security benefits were exempt from garnishment under Tenn. Code Ann. § 26-2-111. We affirm.

David E. Conn v. Oksoon Conn - M2004-00995-COA-R3-CV View
Maury County - In this divorce case, Husband/Appellant appeals and raises issues involving the division of certain marital property. Finding that the trial court did not abuse its discretion in making its division of the marital property, we affirm.

Sandra K. Williams vs. Ronnie Lloyd Williams - E2004-02439-COA-R3-CV View
Claiborne County - In this divorce case, Wife contends that the trial court erred in designating Husband primary residential custodian of the parties’ minor child, in its valuation and division of marital assets and debts, and in failing to award Wife spousal support and attorney’s fees. We affirm the judgment of the trial court with respect to all of these issues except for the issue pertaining to spousal support. With respect to that issue, we hold that Wife is entitled to alimony in futuro based upon a showing of need and Husband’s ability to pay.

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Cases posted the week of 09/05/2005
Robert Hugh Benson vs. Deborah Watkinson - E2004-01989-COA-R3-CV View
Bradley County - Robert Hugh Benson ("Father") sued Deborah Watkinson ("Mother") for divorce. The parties have two minor children. The Trial Court granted the parties a divorce and designated Father as the primary residential parent with Mother to have no overnight visitation due to a finding of her alcohol abuse. Mother appeals to this Court. We modify the judgment only to order Father to attend and complete an anger management course, and affirm as so modified.

Roderick McDavis v. Nashville and Davidson County - M2004-00055-COA-R3-CV View
Davidson County - A Metropolitan Nashville police officer seeks judicial review of the Final Order of the Civil Service Commission of Metropolitan Government pursuant to Tennessee Code Annotated section 4-5-322 following his termination from Metropolitan Government service. After reviewing the record, the Chancery Court of Davidson County determined that the decision of the Civil Service Commission was not arbitrary and capricious and was supported by substantial and material evidence. The judgment of the Chancellor is affirmed.

Department of Children's Services vs. M.C.M.M.C. and M.E.C. - E2005-00390-COA-R3-PT View
Sullivan County - This is a parental rights termination case. The father appeals the trial court's decision terminating his parental rights to his three children. The father argues, inter alia, that the evidence preponderates against the trial court's finding that grounds for termination exist and that termination is in the best interest of the children. We conclude that the evidence preponderates against the decision of the trial court and therefore, we reverse.

Vernon F. Frame v. Davidson Transit Organization - M2004-01960-COA-R3-CV View
Davidson County - Former Fleet Manager of Davidson Transit Organization contends he was demoted because of his age in violation of the Tennessee Human Rights Act. Tenn. Code Ann. § 4-21-401(a)(1). The employer conceded the employee had presented a prima facie case of employment discrimination; however, it contended a prima facie case was insufficient when the employer presented a non-discriminatory reason for its decision. The trial court agreed. The summary dismissal was based upon a finding the burden of proof had shifted back to the employee who was required to, but did not provide additional evidence of age discrimination. An employee's prima facie case, combined with sufficient evidence to find the employer's stated reason for its employment decision false may permit the trier of fact to conclude the employer unlawfully discriminated. The employee provided evidence from which a jury could conclude the employer's stated reason for its employment decision was not credible, thus summary judgment was not appropriate. We, therefore, vacate the summary dismissal and remand for further proceedings.

Sandra E. Fox (Gwirtsman) v. Harry E. Gwirtsman - M2004-00664-COA-R3-CV View
Davidson County - Father appeals from a modification of the residential schedule for his three children which was triggered by Mother's move to another county and the resultant burden on the children of commuting to and from school. Because the evidence supports the trial court's decision, we affirm the trial court's judgment.

In RE: Estate of William C. Marks - M2002-02735-COA-R3-CV View
Wilson County - This appeal involves a monetary claim filed against an estate by the decedent's fiancée. After the decedent died before completing the arrangements for his fiancée's financial security, the fiancée filed a claim against his estate in the Wilson County Probate Court seeking to recover lost wages, the reasonable value of the services she rendered to the decedent, and the income she expected to earn as a trustee of a trust established by the decedent. A jury returned a general verdict awarding the fiancée $475,000 and the possession of an automobile. The trial court thereafter denied the estate's post-trial motions, including its motion for a judgment in accordance with its motion for a directed verdict and for a new trial, and the estate appealed. We have concluded that the trial court erred by submitting the lost wages and lost trustee income claims to the jury and that the evidence does not support a verdict of $475,000 on the claim for the reasonable value of the fiancée's services. Accordingly, we vacate the judgment and remand the case for a new trial solely on the fiancée's claim for the reasonable value of the compensable services she rendered to the decedent.

Moses Pieny v. United Imports, Inc. - M2004-01695-COA-R3-CV View
Davidson County - The appellant, United Imports, Inc. ("United") seeks relief from a circuit court's order on its appeal from a general sessions action brought by the late Moses Pieny. Pursuant to a Local Rule of Practice, the circuit court's order dismissed United's appeal and adopted the general sessions order in favor of the deceased plaintiff. We reverse the order of the trial court and remand the case to the circuit court for dismissal of the claim.

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Cases posted the week of 08/29/2005
Thom Shepherd v. Maximus Entertainment Group - M2003-01664-COA-R3-CV View
Davidson County - This appeal involves a dispute between a country music songwriter and a music publishing company arising out of an "exclusive co-publishing agreement" relating to the song "Riding with Private Malone" and other works. Because of the parties' dispute, ASCAP declined to release royalties for "Riding with Private Malone" to either the songwriter or the publisher. The songwriter filed suit in the Chancery Court for Davidson County seeking a determination that the publishing company had breached the agreement and that he was entitled to receive the royalties held by ASCAP because all the rights to "Riding with Private Malone" had reverted to him. Both parties filed motions for summary judgment. The trial court concluded that the songwriter was not entitled to the withheld royalties. After the trial court denied his motion to amend his complaint to seek money damages, the songwriter appealed. We have concluded that the trial court erred by holding that the songwriter was not entitled to the withheld royalties and that the trial court properly denied the songwriter's motion to amend his complaint.

Rickey W. Pendleton v. Nashville and Davidson County - M2004-01910-COA-R3-CV View
Davidson County - Plaintiff seeks to recover from the Metropolitan Government of Nashville and Davidson County for injuries received when he was arrested by officers of the Nashville Metropolitan Police. In his complaint, Plaintiff asserts that the actions of the officers constituted an assault and battery, and further argues that the government is vicariously liable through respondeat superior. The trial court granted summary judgment in favor of the government after finding that a stand alone allegation of respondeat superior was insufficient to sustain a claim under the Tennessee Governmental Tort Liability Act for damages resulting from intentional torts. Rather, the court held that Plaintiff needed to plead a separate and distinct claim of negligence on the part of the Metropolitan Government. Plaintiff has appealed the ruling of the trial court. Because we find that the trial court correctly found that the GTLA requires a plaintiff to assert separate claims of negligence against governmental entities in cases arising from intentional torts, we affirm.

Sherman Henderson vs. David Mills - W2005-01040-COA-R3-CV View
Lauderdale County - Appellant is an inmate in the custody of the Tennessee Department of Correction. Appellant filed suit against the Warden of the West Tennessee State Penitentiary on grounds of retaliation and violation of inmate's civil rights arising from inmate's reclassification and transfer. The trial court granted Warden's Tenn. R. App. P. 12.02 Motion to Dismiss. Inmate appeals. We affirm.

Edward Lee Burch v. McKoon, Billings & Gold, et al. - M2004-00083-COA-R3-CV View
Sequatchie County - This is an action to quiet title filed by the grantor against an assignee of the grantees relative to an installment land contract. Remote grantees of the grantor were joined as third party defendants by the original defendant/assignee relative to portions of the land involved in the installment land contract and held by the third party defendants under deeds from the grantor. The trial judge granted summary judgment to the grantor and against the assignee of the grantees in the installment land contract. He further granted summary judgment to the remote grantees of the grantor in the third-party action by the assignee against them. The assignee appeals, and we affirm the judgment of the trial court.

Edward Earl DeWerff v. Christine Connie DeWerff - M2004-01283-COA-R3-CV View
Montgomery County - The trial court denied Father's petition to decrease child support upon finding Father was voluntarily underemployed. It also determined Father's previous payments of child support in excess of the court ordered amount were a gift and refused to credit them to Father's subsequent arrearage. Father appeals. We affirm.

In the Matter of J.A.F. - MM2003-03047-COA-R3-CV View
Dickson County - This is an appeal from a Circuit Court determination, in a de novo appeal from juvenile court, that a juvenile was delinquent on the basis of a sale of marijuana to another juvenile. The defendant argues on appeal that the evidence presented was insufficient for a finding of guilt beyond a reasonable doubt. We agree, and we reverse the trial court.

Estate of Jewell Turner: John Le Cornu vs. Dolores Archie & Frede Clements W2004-02123-COA-R3-CV View
Madison County - This is a will contest. In May 2002, the decedent had a stroke at age ninety-five. She had no children, and the plaintiff nephew and the defendant niece and defendant nephew took over her care. The three parties established a conservatorship, became co-conservators, and placed the decedent in a local nursing home. Later, the parties agreed to move the decedent to a nursing home closer to the defendants. Soon after the move, without informing the plaintiff, the defendants brought a lawyer to the decedent so that she could draft a last will and testament. In October 2003, the decedent died. The decedent's will left her $550,000 residuary estate to the defendants, and left only two pieces of furniture to the plaintiff. The plaintiff filed the instant petition to contest the will, alleging that the decedent was unduly influenced by the defendants. After a bench trial, the trial court upheld the will, concluding that the burden of proving undue influence had not been met. The plaintiff now appeals. We affirm, finding that the evidence supports the trial court's finding that the decedent received independent advice in the drafting of her will.

Center for Digestive Disorders & Clinical Research vs. Ronald J. Calisher & Norman A. Lazerine - E2004-02309-COA-R3-CV View
Hamilton County - Plaintiff sued defendants alleging breach of contract and tortious conduct on the part of defendants resulting in damages to plaintiff. The Trial Court granted defendants summary judgment and plaintiff has appealed. On appeal, we affirm the Judgment of the Trial Court.

Bernice/John Woodland vs. Gloria Thornton - W2004-02829-COA-R3-CV View
Fayette County - This is a personal injury case arising out of an automobile accident. The defendant rear-ended the plaintiff's vehicle, and the plaintiff filed this lawsuit against the defendant for the damages resulting from the accident. A jury trial was held. At the conclusion of the trial, the jury awarded the plaintiff compensatory damages, including an amount for future pain and suffering and permanent injury. The trial court entered a judgment on the verdict. The defendant filed a motion to alter or amend the judgment, arguing that some elements of the jury's verdict were not supported by the evidence at trial. The motion was denied. The defendant now appeals. We affirm in part, reverse in part, and remand for the trial court to amend the judgment to conform with the evidence at trial.

Huan Ouyang vs. Xiaohui Chen - W2004-00335-COA-R3-CV View
Shelby County - This is a divorce case. The parties were declared divorced in February 2003. The divorce decree reserved issues regarding their minor child, property valuation and distribution, alimony, and attorney's fees. After a hearing on the reserved issues, the trial court granted the wife alimony and designated her the primary residential parent of their child, set child support, and distributed the marital property. The husband appealed the trial court's decision on all of the reserved issues. We affirm the trial court's decision, with modification on the issue of the husband's residential parenting time.

Donald Hopper vs. Betty Moling - W2004-02410-COA-R3-CV View
Madison County - The plaintiff, an unlicensed home improvement contractor, entered into an agreement with the defendant/homeowner to make certain improvements to her existing home. Shortly after the plaintiff left the job site, the defendant/homeowner began to experience several problems associated with the plaintiff's work. The defendant/homeowner paid to have the defects repaired and/or completed. The plaintiff filed a petition against the defendant/homeowner to enforce a materialman's lien. The defendant/homeowner filed a counter-complaint seeking damages for breach of contract, breach of implied warranties, fraud, and violations of the Tennessee Consumer Protection Act. At the conclusion of the bench trial, the chancellor held that the plaintiff's conduct amounted to constructive fraud, thereby voiding the contract; the plaintiff was only entitled to recover the cost of his labor and materials under quantum meruit; and the defendant/homeowner was entitled to damages, attorney's fees, and discretionary costs. The plaintiff appealed to this Court to contest the chancellor's inclusion of certain costs in the damage award, the limitation of his quantum meruit recovery, the finding of constructive fraud, and the award of attorney's fees to the defendant/homeowner. The defendant/homeowner appealed the chancellor's exclusion of certain costs from the damage award and the method used by the chancellor in calculating the damages. We affirm in part and vacate in part.

Patricia Hazlerig vs. Millington Telephone - W2004-01657-COA-R3-CV View
Shelby County - This case involves the doctrine of res judicata. The plaintiff telephone customer paid a fee to the defendant telephone company to block calls to 900 numbers from being made from her phone. Despite this, charges for 900 calls continued to appear on the customer's bill. The customer disputed this, and the telephone company cut off her telephone service. The customer filed a claim against the telephone company in general sessions court for breach of contract and the telephone company filed a counterclaim for the unpaid charges for the 900 number calls. The general sessions court ruled in favor of the telephone company, and the customer appealed to the circuit court. The circuit court ruled in favor of the customer. The customer then filed a separate lawsuit against the telephone company in chancery court, seeking injunctive relief to require the telephone company to reinstate her telephone service. The telephone company answered, and later sought to amend its answer to plead the defense of res judicata. The chancery court refused to allow amendment of the answer to assert the defense. The chancery court then ruled in favor of the telephone customer. The telephone company appeals, asserting that the chancery court erred in not allowing amendment of its answer to assert the defense of res judicata. We affirm, finding that the principle of res judicata did not apply and the chancery court did not abuse its discretion in declining to permit amendment of the answer.

Babajide Familoni vs. Univ. of Memphis - W2004-02077-COA-R3-CV View
Shelby County - This case is about subject matter jurisdiction. A professor employed by the University of Memphis filed a lawsuit in chancery court against the University, alleging claims under the Tennessee Human Rights Act and failure to execute a settlement agreement on his discrimination claims. The University filed a motion to dismiss the complaint, asserting that the chancery court did not have subject matter jurisdiction to hear contract claims against an agency of the State of Tennessee. The trial court granted the motion, finding that it did not have subject matter jurisdiction to hear the complaint. We affirm in part and reverse and remand, finding that the chancery court has subject matter jurisdiction over claims for discrimination under the Tennessee Human Rights Act.

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Cases posted the week of 08/22/2005
SREE, et al. v. Jacqubhai Champaneria, - M2004-00613-COA-R3-CV View
Davidson County - The plaintiffs appeal the action of the trial court in granting Defendant’s Motion for Summary Judgment on the basis of res judicata. Specifically, Plaintiffs complain of the action of the trial court in allowing Defendant to belatedly amend his answer in order to assert res judicata as a defense. Plaintiffs sought attorney’s fees which the trial court denied. We affirm the action of the trial court.

Cathy Lee Barnes Williams v. Rodney Lee Williams, - M2004-00070-COA-R3-CV View
Davidson County - Former wife, Cathy Williams, appeals the action of the trial court in reducing the alimony in futuro obligation of former husband, Rodney Williams, from $4,000 per month to $2,000 per month based on a finding that a substantial and material change in circumstances sufficient to justify the decrease had occurred. The judgment of the trial court is affirmed.

John Dolle, et al. v. Marvin Fisher, et al. - E2003-02356-COA-R3-CV View
Sevier County - John and Christina Dolle ("Plaintiffs") entered into a contract with Fisher Builders, Inc., for the construction of a single family residence. Plaintiffs eventually obtained a judgment against Fisher Builders, Inc., for breach of contract and breach of warranty. Plaintiffs' judgment against Fishers Builders, Inc. was for $61,102, plus interest and costs. After the judgment against Fisher Builders, Inc., became final, Plaintiffs filed this lawsuit against Marvin Fisher, the president, secretary, sole director, and sole stockholder of Fisher Builders, Inc. Plaintiffs claimed, inter alia, that Fisher Builders, Inc., was a sham corporation, the corporate veil should be pierced, and Fisher should be held personally liable for the judgment against his corporation. The Trial Court agreed and entered a judgment against Fisher personally. We affirm.

Mold-Tech USA v. Holley Performance Products - E2004-01938-COA-R3-CV View
Hamilton County - Mold-Tech USA, LLC ("the Supplier") brought this action against Holley Performance Products, Inc. ("the Manufacturer") for breach of contract, seeking to recover the cost of component parts purchased by the Supplier in connection with its contract with the Manufacturer. Following a bench trial, the court found that the Manufacturer had breached the contract, and the court awarded the Supplier $79,436.87 in damages. In addition, the court awarded the Supplier prejudgment interest at the rate of 4% per annum. The Manufacturer appeals, arguing that the trial court erred in finding for the Supplier because the Supplier failed to comply with the pertinent provisions of the Tennessee version of the Uniform Commercial Code. The Manufacturer also contends that the Supplier is not entitled to prejudgment interest. We affirm.

Michael Ingle, et al. v. Aaron Lilly Construction - E2004-02756-COA-R3-CV View
Sullivan County - Michael E. Ingle and his wife, Melissa R. Ingle ("the plaintiffs"), purchased a house from Aaron Lilly Construction, LLC ("the defendant"). The defendant had constructed the residence and the plaintiffs were the initial purchasers. The plaintiffs began to experience problems with their home and filed suit against the defendant on several theories, including a violation of the Tennessee Consumer Protection Act ("the TCPA"). The trial court, following a bench trial, found that the plaintiffs were entitled to recover, but not under the TCPA. The defendant appeals, arguing that the trial court erred in admitting the testimony of one of the plaintiffs' expert witnesses. They also claim that the evidence preponderates against the amount of damages found by the trial court. The plaintiffs, on the other hand, challenge the trial court's ruling with respect to their claim under the TCPA. We affirm.

Rabia Kafozi, et al.. v. Windward Cove - E2004-01791-COA-R3-CV View
Hamilton County - Rabia Kafozi and Audry C. Kafozi ("Plaintiffs") signed an installment sales contract to purchase real property from Windward Cove, LLC ("Defendant"). Plaintiffs made some, but not all of the payments as scheduled. Defendant declared a default and then sold the real property to another party. Plaintiffs sued Defendant seeking, among other things, either specific performance or the return of payments made by them. The case was tried and the Trial Court held, inter alia, that the installment sales contract did not set a due date and, therefore, Plaintiffs never were in default. Defendant appeals claiming the Trial Court erred in interpreting the installment sales contract. We reverse, and dismiss Plaintiffs' claims.

Carol Bracken Orten v. Thaddeus Charles Orten - E2004-02987-COA-R3-CV View
(Dissent) - View
Knox County - Carol Bracken Orten ("Wife") sued Thaddeus Charles Orten ("Husband") for a divorce. During the course of discovery, Husband refused to provide certain financial information as he felt the information to be irrelevant. After Husband failed to appear without explanation at the second Trial Management Conference, the Trial Court entered a default judgment against Husband as a sanction for his actions. Husband's attorney immediately withdrew from the case and the Trial Court then proceeded to distribute the marital property and award Wife alimony and child support based solely on Wife's uncontested testimony. Husband secured new counsel and filed a motion to alter or amend the judgment, or for a new trial. The Trial Court denied Husband's motion and this appeal followed. We affirm.

Sheryl Heggs v. Wilson Inn Nashville-Elm Hill - M2003-00919-COA-R3-CV View
Davidson County - This appeal involves a dispute between a hotel and a guest who slipped on a wet tile floor as she was making her way to an elevator on one of the hotel's guest floors. The guest filed a negligence action against the hotel in the Circuit Court for Davidson County, and the hotel answered and filed a motion for summary judgment. The trial court granted the hotel's motion after determining, as a matter of law, that the hotel had satisfied its duty to the guest by setting out a yellow "wet floor" warning sign and that the guest was fifty percent or more at fault for her injuries. The guest has appealed. We have determined that the hotel has not demonstrated that it is entitled to a judgment as a matter of law and, therefore, we vacate the summary judgment.

In Re: Audrey S. & Victoria L. - M2004-02758-COA-R3-PT View
(Concur) - View
Davidson County - This appeal involves the termination of the parental rights of a biological mother who is serving a lengthy prison sentence. Following years of drug abuse, criminal conduct, periodic incarceration, and inconsistent attention to the needs of her two children, the mother pled guilty to charges of especially aggravated kidnaping and aggravated robbery and was sentenced to serve concurrent terms of fifteen and twelve years in prison. Following her incarceration, the fathers of both children filed petitions to terminate her parental rights. The juvenile court consolidated these petitions with the mother's petition for visitation and appointed guardians ad litem for the children. The guardians ad litem later filed a joint petition to terminate the mother's parental rights, and the fathers voluntarily dismissed their termination petitions. Following a bench trial, the juvenile court entered orders terminating the mother's parental rights to both children on three grounds. The mother has appealed. We have determined that the record contains clear and convincing evidence to support terminating the mother's parental rights on two of the three grounds relied upon by the court and to support the court's conclusion that terminating the mother's parental rights is in the children's best interests.

In Re: C.L.M., M.M.M., and S.D.M. - M2005-00696-COA-R3-PT View
Dickson County - Mother appeals the Dickson County Juvenile Court's Order terminating her parental rights to three children, C.L.M., M.M.M., and S.D.M. Father does not challenge the trial court's termination of his parental rights. We affirm the judgment of the trial court.

The City of Humboldt, et al. v. J.R. McKnight, et al. - M2002-02639-COA-R3-CV View
Davidson County - This lawsuit is about the operation and funding of public schools educating the children in Gibson County. Since 1981 the county has not operated a county school system, and all K-12 students have been in schools operated by the municipal and special school systems. The county ceased operating schools when a 1981 Private Act created the Gibson County Special School District. This arrangement was ratified by a 2002 Public Act stating that where all K-12 students are eligible to be served by city and special school systems, the county is not required to operate a separate county school system or have a county board of education. The trial court held that the 2002 Act was unconstitutional as special legislation and that the 1981 Act, though constitutional, was illegal. It ordered the dissolution of the Gibson County Special School District and that the county undertake operation of the schools not included in the other municipal or special school systems within the county. The court further found that the county was required to levy a countywide property tax to fund the local share of education costs and divide the proceeds among all school systems in the county. We hold that the 2002 Act does not violate Article XI, Section 8 of the Tennessee Constitution and, consequently, there is no obligation for the county to operate a county school system. We also conclude that the facts do not establish any disparity of educational opportunity among the school systems in the county and, consequently, the principles and holdings in the Small Schools cases do not apply to require a specific organizational structure and do not preclude the method used in Gibson County. Finally, we conclude the county is not required to levy a countywide property tax for schools. Accordingly, we reverse the trial court's judgment.

Clyde Edwards v. Sarah Ann Edwards - E2004-02490-COA-R3-CV View
(Concur/Dissent) - View
Unicoi County - This is a post-divorce case. Clyde Edwards ("Husband") appeals the trial court's denial of his motion to modify his alimony obligation to his former wife, Sarah Ann Edwards ("Wife"). Husband's original motion was premised on the fact that Wife was living with her adult daughter and son-in-law. We affirm.

Sherri LaDue v. Brian LaDue - E2004-02481-COA-R3-CV View
Knox County - Sherri Morgan LaDue ("Wife") alleged in the trial court that her husband, Brian Charles LaDue ("Husband"), had viciously and repeatedly attacked and beaten her in violation of an order of protection. The trial court found that Husband had committed 19 violations of the order, and that each violation constituted an act of criminal contempt. The court determined that the appropriate punishment for each violation was the maximum period of incarceration – ten days in jail. The court imposed 19 consecutive sentences, i.e., 190 days in jail, effective June 9, 2005. In its final judgment, the trial court directed that "a judge who may sentence [Husband] in the future should not have the discretion to give 190 days credit for time served for any of the same 190 days for which [Husband] is now being sentenced for criminal contempt." Husband appeals. We modify the judgment of the trial court. As modified, the judgment is affirmed.

Cumberland County Bank v. Dee Downs Eastman, et al. - E2005-0220-COA-R3-CV View
Cumberland County - The Cumberland County Bank ("the bank") filed an unlawful detainer action in general sessions court against Dee Downs Eastman. The bank sought to obtain possession of real property conveyed to it following the bank's foreclosure of deeds of trust securing promissory notes executed by Ms. Eastman. The general sessions court entered judgment for possession "for which a Writ of Possession may issue." Ms. Eastman appealed to the trial court and, along with the Dee Downs Eastman Revocable Trust ("the trust"), filed in that court a counterclaim that essentially challenged the validity of the foreclosure sale by which the bank acquired its title to the subject property. The trial court granted the bank summary judgment as to all issues. Ms. Eastman and the trust appeal. We affirm.

Stephanie Watson vs. Timothy Watson - W2004-00633-COA-R3-CV View
Henderson County - This case is about parental relocation and child custody. The parents of a minor child divorced in 2001. Both parents lived in Lexington, Tennessee, and, at the time of the divorce, agreed to joint custody. The child alternated daily between the parents' homes. In 2002, the mother remarried and moved to Murfreesboro, Tennessee. The mother petitioned the court to designate her as primary residential parent and allow her to move the child with her to Murfreesboro. The father opposed the petition and asked the court to designate him as the primary residential parent. The trial court found that it was in the child's best interest to move to Murfreesboro with the mother, and designated her as primary residential parent. The father appealed. We affirm, finding that the evidence does not preponderate against the trial court's decision to designate mother as primary residential parent and permit the child to move with her.

Ben Pruitt vs. City of Memphis Civil Serv. - W2004-01771-COA-R3-CV View
Shelby County - This is an appeal from the trial court's reversal of an administrative decision. The plaintiff police officer was involved in a one-car collision while driving a police van. At the time, he was on sick leave and was not authorized to be driving the van. The van contained numerous high-powered police weapons. After the accident, the officer locked the van and left it at the accident scene overnight. The next day, the officer notified the police department about the accident. The officer was later terminated for his conduct arising out of the accident. The officer appealed his termination to the Civil Service Commission, which upheld the termination. The officer then filed the instant lawsuit in the lower court, seeking a review of the Commission's decision. The trial court reversed the Commission, holding that no material evidence supported its decision to uphold the termination. From that decision, the City now appeals. We reverse the decision of the trial court and uphold the Civil Service Commission's decision to terminate the plaintiff officer, finding material evidence in the record to support the Civil Service Commission's decision.

Ronnie Ashley v. Tracy Jones, et al. - M2003-02411-COA-R3-CV View
Rutherford County - The trial court ordered a divorced father to pay his former wife $124 a week in child support in accordance with the child support guidelines. After the father was laid off from his job, he asked the Department of Human Services to lower his child support obligation because of reduced income. Acting under Tenn. Code Ann. § 36-5-103(f), the agency cut the father's obligation in half without prior notification to the mother. She filed a complaint in Chancery Court, arguing that the Department had taken away her property right without due process and in reliance upon a statute and administrative rules that violated the separation of powers under the Tennessee Constitution. The trial court dismissed her complaint. We reverse the trial court.

Robert Broadbent v. Shari Broadbent - M2003-00583-COA-R3-CVC View
Davidson County - This appeal involves a dispute over the responsibility for investment losses incurred by a spouse before and during the parties' marriage. After only one year of marriage, the husband filed suit for divorce in the Circuit Court for Davidson County. The wife counterclaimed for divorce and, among other relief, sought alimony in solido to offset the loss of her separate property resulting from the husband's aggressive stock market trading. Following a bench trial, the trial court granted the wife a divorce on the ground of inappropriate marital conduct and then, employing a comparative fault analysis, determined that the husband should pay the wife $51,500 in alimony in solido to reimburse her for her separate property lost in the stock market. The husband has appealed. We have determined that the wife is not entitled to be reimbursed for the losses caused by the husband's investments.

In the Matter of: A.L.N. and B.T.N. - M2004-02830-COA-R3-PT View
Davidson County - Father appeals the termination of his parental rights to his two minor children, arguing that Petitioner, the children's maternal grandmother, did not show by clear and convincing evidence that Father had abandoned his children. Father also asserts that because there is no transcript or audio recording of the trial court's hearing this court is unable to conduct an adequate appellate review. We agree with Father and find that due to the lack of a transcript or audiotape of the evidence presented at the termination hearing, we are unable to determine whether clear and convincing evidence supported the termination of his parental rights. Consequently, Father has been deprived of an effective review on appeal. We therefore vacate the judgment of the trial court terminating Father's parental rights and remand for further proceedings.

Guy G. Bigger, Jr., et al. v. Anthony I. Fields, Guy M. Fields, Patrick E. Smith, et al. - M2004-01489-COA-R3-CV View
Marshall County - As found by the trial court, appellant, Guy G. Bigger, Jr., was defrauded by Anthony Fields and Guy Fields with regard to the sale of a 332 acre tract of land in Marshall County, Tennessee. The Fields' conveyed a portion of the tract to the appellee, Patrick Smith. Mr. Bigger brought suit seeking, among other things, to set aside the Fields' deed to Mr. Smith alleging it to be a fraudulent conveyance. The trial court found Mr. Smith to be a bona fide purchaser who gave adequate consideration for the transfer and denied relief as to Smith. Mr. Bigger appealed challenging the findings of the trial court. We find the evidence does not preponderate against the trial court's findings and affirm.

Melinda Anderson v. Donald Anderson, Sr. - M2004-00078-COA-R3-CV View
Davidson County - In this extended post-divorce battle over child support, alimony, property division and various other imaginative issues, the trial court granted summary judgment to the defendant. The judgment of the trial court is vacated, and the cause is remanded for trial of specific issues.

Eloris Presley v. Charles Sattler - M2002-02868-COA-R3-CV View
Davidson County - This appeal involves a former wife's efforts to recover damages from her former husband for misdeeds during their marriage and following their divorce. Approximately ten years after the parties' divorce in Louisiana, the former wife filed a pro se complaint in the Circuit Court for Davidson County seeking to recover $10,000,000 from her former husband for "eight years of trauma and distress, abuse and torture." The former husband filed a pro se "exception" to the trial court's subject matter jurisdiction. The trial court dismissed the complaint, and the former wife has appealed. We affirm the dismissal of the complaint.

Frederick Umans v. Deborah Umans - M2004-00095-COA-R3-CV View
Davidson County - Former husband appeals trial court's denial of a reduction in alimony, the effective date of the child support reduction, the award of attorney's fees and the finding of criminal contempt. The trial court is affirmed in all respects except the finding of criminal contempt which is reversed for lack of proof of willfulness.

James Breer vs. Quentin White - W2005-00702-COA-R3-CV View
Lauderdale County - Petitioner/Appellant is an inmate in the custody of the Tennessee Department of Correction. This appeal arises from the Appellant's filing of the underlying pro se petition for common-law writ of certiorari, seeking review of the Warden's decision to move him from one housing unit to another. The trial court dismissed Inmate's case based upon its determination that the Warden's decision was administrative, as opposed to judicial, in nature and that, as such, the common-law writ of certiorari was not the proper vehicle for review. Inmate appeals. We affirm.

Linda Diane Stutz vs. David Larry Stutz - E2004-01399-COA-R3-CV View
Hamilton County - This case involves a divorce and the validity of a postnuptial agreement. Mr. and Ms. Stutz were married more than twenty years. During most of the marriage, they wanted to have children but were unsuccessful. When a child became available for adoption, Ms. Stutz was elated and aggressive in her actions to secure the adoption of the child, but Mr. Stutz was opposed to the adoption of the child. Over the course of several weeks, Ms. Stutz attempted to change Mr. Stutz's mind regarding the adoption. Finally, she suggested that in exchange for his consent to the adoption, they would enter into an agreement dividing the marital estate and in the event Mr. Stutz was unhappy being a father they would divorce and follow the agreement previously determined. The result was a lengthy postnuptial agreement, which among other things, divided the marital estate giving most of the marital property to Mr. Stutz. Within a few years of the signing of the postnuptial agreement and the adoption, Ms. Stutz filed for divorce. The trial court upheld the validity of the postnuptial agreement with the exception of a section which attempted to waive and/or significantly limit Mr. Stutz's child support obligation. The trial court also granted a divorce to the parties upon Mr. Stutz's motion without conducting an evidentiary hearing. Ms. Stutz appeals. We hold that the postnuptial agreement is invalid as it is contrary to public policy. We further hold that the trial court erred in granting a divorce to the parties in the absence of a stipulation to or proof of grounds for divorce. Accordingly, we reverse the trial court's decision and remand this case for a trial on the division of the marital estate, alimony, divorce, and any remaining issues.

Edward Rabbit, et al. v. Daniel L. Mills - M2004-01103-COA-R3-CV View
Davidson County - This appeal involves a decision by the Davidson County Circuit Court to grant a petition for a writ of scire facias after expiration of the ten-year statute of limitations. In granting the petition, the trial court first found that the debtor was equitably estopped from asserting the defense of the statute of limitations because of his bad faith and willful misconduct. Next, the trial court found that the judgment creditors timely filed their petition for a writ of scire facias because the ten-year statute of limitations had been tolled by debtor's filing of a Chapter 13 bankruptcy case and also by the entry of the Order for Payment by Installments. The debtor appealed to this Court. The judgment of the trial court is reversed.

Sara Fischer v. The Eldon Stevenson, Jr. Scholarship Fund - M2004-00352-COA-R3-CV View
Davidson County - This appeal arises from a trial court's order granting Appellee's motion which was labeled a motion to dismiss but treated as a motion for summary judgment. The trial court determined that Appellant lacked standing to bring her cause of action, and, alternatively, was barred from bringing her claim by the doctrine of collateral estoppel. Appellant seeks review by this Court, and, for the following reasons, we affirm.

DeAngelo Newman vs. Lisa Myatt - E2004-02890-COA-R3-CV View
Washington County - The father filed a Petition to change custody of minor son from mother to father. Upon hearing evidence, the Trial Court held there had been a material change of circumstances and it was in the child's best interest to award custody to the father. On appeal, we affirm.

Sylvia Wilson vs. Emily Price - E2004-02873-COA-R3-CV View
Cumberland County - Plaintiff Price brought this cause of action for ejectment. Defendant Wilson invoked the affirmative defenses of adverse possession, the statutory limitations period prescribed at Tennessee Code Annotated § 28-2-103, and laches. The trial court determined that Defendant had not met the elements of adverse possession upon finding Defendant's use of Plaintiff's property was permissive. The trial court entered judgment for Plaintiff, and Defendant appeals. We reverse in part, vacate in part, and remand for entry of judgment consistent with this opinion.

Robert Fuller, Jr. vs. Lynn Fuller - E2004-02537-COA-R3-CV View
Bradley County - In this post-divorce action, Robert William Fuller, Jr. ("Father") filed a petition seeking, among other things, a modification of the custody arrangement with respect to the parties' minor son, Ryan; an enforcement of parenting time with both Ryan and his daughter, Caitlyn; and a finding of contempt against his former wife, Lynn Gail Harrison, formerly Fuller ("Mother"). Mother filed a counterclaim, seeking an increase in child support. Following a hearing, the trial court essentially denied Father's petition. It left Mother as the primary residential parent of both children. In addition, the trial court ordered that Father's visitation with Caitlyn would be at the sole discretion of a named counselor. The trial court did not find Mother in contempt. Father appeals. We affirm in part, reverse in part, and modify in part.

Kim Wells, et al vs. Hamblen County, et al - E2004-01968-COA-R3-CV View
Hamblen County - The trial court dismissed an action against the county arising from a deputy sheriff's allegedly negligent failure to arrest a man who had just assaulted his former girlfriend, the mother of his child. The man later murdered his young son. The mother of the child appealed. Because the public duty doctrine provided a shield from liability, and the complaint did not allege facts sufficient to establish the special duty exception, we affirm the trial court.

Cherryle E. Sexton v. Jim K. Duncan, et al. - M2004-01142-COA-R3-CV View
Rutherford County - This is an appeal from the granting of defendant's motion for summary judgment in a wrongful death action filed by the plaintiff, widow of Charles B. Sexton, against the estate of Lester W. Martin. Both Mr. Sexton and Mr. Martin were employed by LoJac Enterprises, Inc. (LoJac), and were traveling from a job site to their residences when they were involved in an automobile accident resulting in their deaths. The vehicle in which they were traveling was owned by LoJac, was assigned to Mr. Sexton but was being operated by Mr. Martin. The plaintiff, Mrs. Sexton, received workers' compensation benefits as the result of the death of her husband. The trial court, having determined that Martin was acting within the course of his employment with LoJac, granted motion for summary judgment filed in behalf of the Martin estate based upon the exclusive remedy provisions of Tennessee Code Annotated § 50-6-108. We affirm.

Kina Crider vs. County of Henry, TN - W2005-00223-COA-R3-CV View
Henry County - The plaintiff filed a motion for summary judgment with the trial court. After conducting a hearing on the motion, the trial court entered an order which amounted to a denial of the plaintiff's motion. Accordingly, the trial court's order does not constitute a final judgment which the plaintiff may appeal to this Court. This appeal stands dismissed for lack of appellate jurisdiction.

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Cases posted the week of 08/15/2005
Linda Kissell d/b/a Full Moon Sports Bar & Driving Range vs. McMinn County Commission, et al - E2004-02938-COA-R3-CV View
(Concur) - View
MacMinn County - This case involves the Petitioner's application for a permit to sell beer both on and off-premises of her proposed business establishment. The trial court affirmed the Appellee McMinn County Commission's decision to deny the permit, pursuant to Tenn. Code Ann. § 57-5-105, on grounds that Petitioner's application contained a false statement. Petitioner contends on appeal that she should have been granted the permit because she did not know the statement was false at the time she made it, and because she attempted to amend the application to correct the false statement prior to the hearing before the McMinn County Chancery Court. We affirm the judgment of the trial court.

Jay Christenberry vs. Doris Christenberry - E2004-02193-COA-R3-CV View
Blount County - This is an appeal of a divorce action in which the Wife argues that the trial court failed to make an equitable distribution of the marital estate and the trial court erred in dismissing her independent lawsuit against Husband, and a corporation owned by Husband, for wages claimed to be earned by Wife and owing by the corporation. We hold that the distribution of marital property should be modified so as to award Wife sole ownership of the marital home, subject to Husband's right of first refusal to purchase the home in the event it is sold, and Husband's right to visit and maintain the gravesite of the parties' daughter, located near the home on part of the marital estate, upon Husband's providing reasonable notice to Wife. We further find that the trial court erred in dismissing Wife's lawsuit against Husband and therefore vacate the trial court's order dismissing with prejudice the Wife's lawsuit against Husband and the corporation. We affirm the trial court's ruling in all other respects.

City of Oak Ridge vs. Diana Brown - E2004-01574-COA-R3-CV View
Anderson County - Diana Ruth Brown ("the defendant") was stopped by a City of Oak Ridge police officer and cited for speeding. Following an adverse decision in municipal court, the defendant appealed to the trial court. The trial court ruled that the defendant could not pursue, in the trial court, her assertion and defense that the posted speed limit of 45 mph was not legally established. Subsequently, that court found her guilty of speeding and imposed its judgment. The defendant appeals. Both sides raise issues. We vacate and remand for further proceedings.

Cathy Gurley, et al. v. Matt King, et al. - M2003-02897-COA-R3-CV View
Davidson County - This is a breach of contract action wherein the trial court granted summary judgment to Defendant on the grounds that the contract was too uncertain and indefinite to be enforced. The action of the trial court is reversed, and the case remanded for trial on its merits.

Rhonda D. Duncan v. Rose M. Lloyd, et al. - M2004-01054-COA-R3-CV View
Davidson County - The trial court awarded summary judgment to Defendants based on Plaintiff's failure to respond to Defendants' statements of undisputed facts. We affirm.

Beverly Healthcare Brandywood v. Betty L. Gammon, et al. - M2003-03117-COA-R3-CV View
Sumner County - Nursing home brought suit against former resident's daughters seeking to recover amounts owed for resident's care by setting aside alleged fraudulent conveyances to the daughters. We affirm the judgment of the trial court setting aside a portion of the conveyances as fraudulent.

Ed Brennan v. Giles County Board of Education - M2004-00998-COA-R3-CV View
Giles County - Appellant requested certain records under the Public Records Act. After an in camera review, the trial court determined that these records were not accessible under that Act as they fell outside the definition of public or state records found at T.C.A. §10-7-301(6). On appeal, Appellant contends that, by virtue of the fact that the requested documents were made during business hours and were made or stored on computers owned by the school system, these facts, per se, make them "public records". Finding that the trial court did not err in performing an in camera review to determine whether any of the requested documents fell within the purview of the statutory definition, we affirm.

American Heritage Apartments v. Bill Bennett, et al. - M2003-02595-COA-R3-CV View
Davidson County - A nonprofit corporation which owns an apartment complex that provides housing to low-income individuals applied for an exemption from ad valorem property taxes pursuant to Tenn. Code Ann. § 67-5-212. The Assessment Appeals Commission of the State Board of Equalization determined that the owner was not entitled to a property tax exemption, and the Davidson County Chancery Court affirmed the denial of exemption. The owner appealed. We affirm.

James Crain vs. Baptist Hosp. - W2004-00477-COA-R3-CV View
Shelby County - In this premises liability suit, we are called upon to evaluate the trial court's grant of summary judgment to the defendant/landowner. The trial court concluded that, as a matter of law, the injured plaintiff, an employee of an independent contractor performing electrical work on the premises, could not establish that the defendant/landowner owed him a duty. Since the plaintiff could not establish an essential element of his negligence cause of action, the trial court granted the defendant/landowner's motion for summary judgment. We affirm.

Emerson Russell, et al vs. Ted Brown, Jr.,et al - E2004-01855-COA-R3-CV View
Hamilton County - Emerson E. Russell ("the plaintiff") and his wife, Angie Russell, brought this suit for medical malpractice against Dr. Ted W. Brown, Jr., seeking damages associated with injuries allegedly suffered by the plaintiff as a result of a surgical procedure performed by Dr. Brown. The plaintiff also named as a defendant Dr. S. Morgan Smith, the anesthesiologist who attended the plaintiff's surgery. In the complaint, the plaintiff averred, among other allegations, that he was not adequately informed of alternative treatments for his snoring problem, and that he was not fully advised of the attendant risks of the procedure performed by Dr. Brown. A jury returned a verdict for the defendants. Following the trial, the defendants filed separate motions for discretionary costs, which motions were granted in part and denied in part. The plaintiff and his wife appeal, arguing that the plaintiff was not furnished sufficient information to enable him to give "informed" consent to the surgery performed by Dr. Brown. They also contend that the trial court's charge to the jury on the issue of informed consent did not adequately instruct the jury on the subject. Finally, they raise several issues pertaining to evidentiary matters. As a separate issue, the defendants contend that the trial court's awards of discretionary costs were inadequate. We affirm the judgment of the trial court with respect to the jury's verdict. We modify the trial court's two awards of discretionary costs. As modified, those awards are affirmed.

Janice DeLong v. The Vanderbilt University - M2002-02655-COA-R3-CV View
Davidson County - This appeal involves the collateral consequences of the dismissal of a wrongful death claim for failure to prosecute. The mother of a student who fell to his death from a dormitory window filed suit in both state and federal court against the university her son was attending. After the state proceedings lay dormant for over one year, the Circuit Court for Davidson County dismissed the complaint for failure to prosecute. Thereafter, the university moved to dismiss the federal suit on the ground that the dismissal of the state suit was res judicata with regard to the federal claim. The mother filed a Tenn. R. Civ. P. 60 motion in state court requesting modification of the dismissal order to reflect that it was not an adjudication on the merits. The state court denied the mother's request for Tenn. R. Civ. P. 60 relief and also denied her request for permission to file a Tenn. R. App. P. 9 appeal. The mother has appealed both decisions. We have determined that the trial court erred by denying the mother's Tenn. R. Civ. P. 60 motion.

Emily Ray vs. James Ray, Sr. - E2004-01622-COA-R3-CV View
Greene County - In this divorce case, husband argues that the trial court erred in awarding wife rehabilitative alimony and attorney's fees and contends that a post-judgment change in circumstances warrants termination of alimony. Because husband failed to submit a transcript or statement of evidence, failed to support his argument with citations of authority and appropriate references to the record, and failed to raise the issue of post- judgment change of circumstances prior to appeal, we affirm the judgment of the trial court and remand.

Nancy McDaniel vs. Harold McDaniel - E2004-02996-COA-R3-CV View
Washington County - The Trial Court held appellant's retirement was not a material change of circumstances so as to enable appellant to reduce his alimony payments. On appeal, we reverse.

Debra Johnson, et al vs. Dupree Oil Co.. - E2004-01433-COA-R3-CV View
Hamilton County - Plaintiff was injured in a fall and the jury returned a verdict for damages against defendant which was approved by the Trial Court. On appeal, we affirm.

Cathy Chapman, et al vs. Rick Bearfield - E2004-02596-COA-R3-CV View
Washington County - retained attorney Rick J. Bearfield ("Defendant") to represent them in a medical malpractice action. During the course of this representation, Defendant filed an amended complaint repudiating a theory of the case originally alleged. Plaintiffs later hired new counsel and filed a legal malpractice action against Defendant. Defendant filed a motion for summary judgment, which the Trial Court granted on the grounds that Plaintiffs' expert's affidavit was deficient technically and did not comply with the locality rule. We vacate the grant of summary judgment.

Paul Truitt v. Stephanie Palmer, et al. - M2003-02757-COA-R3-CV View
Davidson County - This appeal arises out of an action filed by the plaintiff seeking damages for breach of an oral contract, intentional misrepresentation, defamation, and conversion. The plaintiff voluntarily dismissed his claims against Dr. Michele Lutz. The trial court granted Dr. Michael Lutz’s and West Meade Veterinary Clinic, LLC’s motion for partial summary judgment, and the plaintiff voluntarily dismissed his remaining claims against Dr. Michael Lutz and West Meade Veterinary Clinic, LLC. The trial court granted Stephanie Palmer’s, Palmer-West Meade Veterinary Clinic, Inc.’s, and West Meade Veterinary Clinic, PC’s motion for partial summary judgment, leaving only the plaintiff’s claim for unpaid bonuses or commissions. The trial court awarded the plaintiff $6,307.85, representing unpaid commissions and bonuses. The plaintiff now appeals to this Court, and, for the following reasons, we reverse and remand for further proceedings.

City of New Johnsonville v. Kevin E. Handley, et al. & Gene Plant, et al., v. Kevin E. Handley, et al. - M2003-00549-COA-R3-CV View
(Concur) - View
Humphreys County - This appeal involves protracted litigation over a parcel of land conveyed by the City of New Johnsonville, Tennessee, to a member of the New Johnsonville City Council. The mayor, on behalf of the city, subsequently filed suit against the councilman seeking to nullify the transaction. During the pendency of that litigation, several taxpayers filed their own suit against the councilman alleging the same causes of action set forth in the city’s complaint. The city and the councilman ultimately settled their lawsuit. The taxpayers’ lawsuit continued, ultimately naming the city as a defendant. The trial court partially granted the defendants’ motions for summary judgment by ruling that the taxpayers did not have standing to contest the land transaction between the city and the councilman. The court ruled that the taxpayers did have standing to continue with their other causes of action concerning allegations that the councilman engaged in illegal business transactions with the city. The taxpayers subsequently took a voluntary nonsuit on their remaining claims and filed an appeal to this Court to contest the trial court’s grant of summary judgment on their claim regarding the land transaction. We vacate the trial court’s decision regarding the land transaction, and we remand for further proceedings not inconsistent with this opinion.

Timothy/Sarah Riley vs. Richard Whybrew - W2004-02522-COA-R3-CV View
Shelby County - This case is about nuisance and infliction of emotional distress. The plaintiff homeowners and their minor child lived in a house in a subdivision. The defendant landowner owned a house next door to the plaintiffs’ home. The defendant landowner rented his house to tenants. The tenants allegedly began to engage in disturbing conduct, including illegal drug use, discharging firearms, and harassment. The plaintiffs sued the tenants and the defendant landowner for nuisance and for intentional and negligent infliction of emotional distress. The defendant landowner filed a motion for summary judgment, asserting that the plaintiffs had no medical evidence of their emotional distress. Counsel for the plaintiffs did not respond to the motion for summary judgment and did not notify the plaintiffs of the pending motion. The trial court granted summary judgment in favor of the landowner. The plaintiffs later got a new attorney and filed a motion to set aside this judgment. The trial court set aside the grant of summary judgment, to enable the plaintiffs to file a response. After the plaintiffs filed a response, the trial court again granted summary judgment in favor of the landowner. We affirm the grant of summary judgment as to the claim of intentional infliction of emotional distress, and reverse as to claims of nuisance and negligent infliction of emotional distress.

V.C. Morton vs. L.R. Morton, et al - E2003-02784-COA-R3-CV View
Blount County - V.C. Morton (“Wife”) sued L.R. Morton (“Husband”) for a divorce. Wife later amended her complaint to allege that Husband had fraudulently transferred real estate and personal property to the parties’ two adult sons (“James and Mace Morton”) in an attempt to deprive Wife of her rights to that marital property. James and Mace Morton were added as named defendants to the suit. Prior to trial, all parties stipulated to the return of the real estate and personal property that Husband had transferred to James and Mace Morton for distribution in the divorce. After a bench trial, the trial court found and held, inter alia, that Husband had committed a fraud in fact by transferring the property to the sons, granted the divorce, and distributed the parties’ property. Husband appeals claiming that the property distribution was inequitable and that the trial court erred in ordering him to provide medical insurance coverage to Wife for the remainder of her life. James and Mace Morton also appeal claiming the trial court erred in depriving them of their right to a jury trial, by finding that the transactions between Husband and James and Mace Morton were a fraud in fact, and by classifying certain farm equipment and machinery as marital property. We modify the property division, and affirm as modified.

Eric and Suzanne Mumford vs. State - E2004-03025-COA-R3-CV View
Plaintiffs sued the State for alleged negligence of one of its drivers license examiners in conducting an applicant’s road test which resulted in an accident. The Commissioner dismissed the case at conclusion of plaintiffs’ proof. On appeal, we affirm.

State of Tennessee ex rel. Deborah Belford vs. Steven Green - E2004-00311-COA-R3-JV View
Knox County - The appeal involves child support arrearages incurred by Steven Green (“Father”) over a period spanning almost five years. For the first two years of this five-year period, Father lived in North Carolina before moving to Tennessee in December of 2000. The Juvenile Court concluded it did not have personal jurisdiction over Father sufficient to allow it to enter a judgment against him for retroactive child support for the time before Father moved to Tennessee. We conclude the Juvenile Court had personal jurisdiction over Father, reverse that portion of the final judgment, and remand for further proceedings.

Kevin Joseph Costley v. Vicki Brown (Costley) Benjamin - M2004-00375-COA-R3-CV View
Wilson County - Following divorce, the mother was awarded primary custody of the parties’ two young children. Five years later, she acquiesced to letting the older child, a son, live primarily with his father. The father then petitioned the trial court for primary custody of both children. The court named him the primary residential parent for the older child, but left the mother as the primary residential parent for the parties’ younger child, a daughter. Less than a year later, the father filed another petition for modification of the parenting arrangement regarding the daughter, asking that primary residential placement be with him. This time, the trial court granted the petition, reasoning that the father would never relent in his efforts to obtain primary residential placement and that the parents’ continuing struggle was detrimental to the child’s well-being. We reverse the trial court because we do not believe that the father has demonstrated a proper ground for modification of the prior parenting arrangement and because the proof shows that the mother is more inclined than the father to encourage the child’s relationship with the other parent.

Michael Lord v. Meharry Medical College School of Dentistry - M2004-00264-COA-R3-CV View
Davidson County - A former dental student appeals trial court’s dismissal of his claim against Meharry Medical College wherein the student asked the court to revise a failing grade and reinstate the student in school after he had been dismissed for poor academic performance. We affirm.

Wings Manufacturing Corp. v. Roy D. Lawson, et al. - M2004-00265-COA-R3-CV View
Coffee County - This case involves the calculation of damages for lost profits arising from a breached contract between two apparel companies. The seller claimed that the trial court failed to take into account the costs it incurred manufacturing the goods, resulting in an excessive award for the buyer. The buyer contended that the trial court was correct in adopting the calculation of damages that the buyer presented. It appears to us that because the buyer never accepted the goods in question, it was not obligated to pay the seller for those goods and was entitled to reimbursement for the $50,000 the seller wrongfully withdrew from the buyer’s letter of credit. We accordingly affirm the trial court.

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Cases posted the week of 08/08/2005
In The Matter Of: M.A.R. and J.S.R. - E2005-00255-COA-R3-PT View
Knox County - This is a parental termination case. The parents' next door neighbors overheard the mother striking, cursing, and threatening her daughter over a baby monitor and recorded the incident. The tape also captured the father coming home from work and asking the mother about certain marks on the child. The neighbors subsequently turned the tape over to the Tennessee Department of Children's Services. The juvenile court placed the children in the protective custody of the department, and the department implemented a permanency plan requiring the mother and father, among other things, to undergo therapy. The department subsequently filed a petition in the juvenile court seeking to terminate the parents' parental rights. The juvenile court found that the department proved each ground alleged by clear and convincing evidence and that termination was in the children's best interest. We affirm.

State ex rel. Karl F. Dean v. George L. VanHorn, et al. - M2002-01969-COA-R3-CV View
Davidson County - This appeal involves the courts' power to require a property owner to post a bond to regain possession of real property on which a public nuisance had been maintained. After the Metropolitan Government of Nashville and Davidson County filed suit in the Criminal Court for Davidson County seeking to enjoin the operation of a brothel at a Nashville address, the property owner conveyed the property to a Nevada corporation. Even though the new property owner agreed to the entry of an order permanently enjoining the operation of a house of prostitution on the premises, the city insisted that the new owner should also be required to post a $20,000 bond to assure compliance with the injunction. The trial court acceded to the city's request and conditioned the restoration of the property to the owner's control on the owner posting a $20,000 cash bond. The owner has appealed. We have determined that the trial court erred by conditioning the property owner's lawful use of its property on the filing of an open-ended bond.

Leighann M. Gullett v. Michael J. Hopkins - M2003-02086-COA-R3-CV View
Coffee County - This is a post-divorce change of custody proceeding wherein the trial court found no substantial change of circumstances and denied the Petition. The judgment of the trial court is affirmed.

In the Matter of: J.L. - M2005-00286-COA-R3-PT View
Sumner County - Mother appeals the termination of her parental rights to her child, J.L. The trial court terminated the mother's parental rights on the grounds of abandonment, persistence of conditions, and substantial noncompliance with the permanency plan. The trial court also found the termination of the mother's parental rights was in the child's best interest. We affirm.

In Re: D.M.S., G.H.S., and T.M.S. - M2004-02584-COA-R3-PT View
Davidson County - Mother appeals the Davidson County Juvenile Court's Order Terminating her parental rights to three children, T.M.S., and D.M.S. and G.H.S. Father of D.M.S. challenges the trial court's termination of his parental rights. We affirm the decision of the trial court in all respects.

Lee Pittman v. Williamson County - M2003-02860-COA-R3-CV Amos E. View
Williamson County - This appeal comes from the trial court's dismissal of the plaintiff's governmental tort liability claim and its denial of the plaintiff's Motion to Alter or Amend based on newly discovered evidence. We affirm the trial court in all respects.

Qualls v. Henrietta J.Q. Klutts, In re: the Estate of Henry Qualls - M2003-01850-COA-R3-CV View
Perry County - The pro se Appellant has asked this Court to review the lower court's denial of his petition contesting the manner in which the executrix administered the estate. Specifically, the Appellant seeks certain personal property from his father's estate he argues the Appellee, his sister, is unlawfully withholding as executrix. The Appellant filed a statement of the evidence with this Court in