Court of Appeals Opinions - 4^th Quarter 2000

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The following Tennessee Court of Appeals Opinions are available for download:

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Cases Posted the Week of (12/25/2000)
Fain v. Fain - M1999-02261-COA-R3-CV View
In this post-divorce proceeding, Clifton Dean Fain ("Father") filed a petition seeking sole custody of the parties' minor child. Susan Lorraine Fain ("Mother") counterclaimed for a modification of the joint custody arrangement or, in the alternative, for sole custody of the child. The trial court awarded Mother sole custody. Father appeals the award of sole custody to Mother. He also challenges the award of attorney's fees to Mother and questions the fairness of the quantum of his visitation time with the child. Mother seeks attorney's fees for this appeal. We affirm.

Maelene Fowler vs. Jerry Wilbanks - W2000-00452-COA-R3-CV View
Plaintiffs sued to enjoin Defendant from denying their right to use a private dirt and gravel road on Defendant's property in order to access their property. The trial court held that Plaintiffs established an easement by implication and/or prescription in the private road, and enjoined Defendant from preventing Plaintiffs' future access to the road. Defendant appeals.

Jerry Luster vs. Alan Bargery, et al - W2000-00022-COA-R3-CV View
Prisoner filed petition for habeas corpus alleging that he received an amended sentence of six years for drug violation instead of the original eight-year sentence with probation. Petitioner alleges that upon revocation of probation, he was ordered to serve the eight-year sentence instead of the six-year amended sentence. The trial court dismissed the petition, and petitioner has appealed.

Nancy Record vs. Brian Record - W2000-01294-COA-R3-CV View
Husband appeals a final decree of divorce as it pertains to an upward deviation of child support, division of marital property and debt, and the award of alimony in solido for attorney fees. We affirm as modified.

Chris Farley vs. Charles Ellis, et al - W2000-00354-COA-R3-CV View
Plaintiff sued defendants to enforce alleged oral agreement to convey real estate or alternatively for damages. The trial court found that the oral agreement violated the statute of frauds, but ordered, under the doctrine of equitable estoppel, the specific performance of the oral agreement. Defendants have appealed.

Elpidio Placencia vs. Lauren Placencia - W1999-01812-COA-R3-CV View
Elpidio Placencia vs. Lauren Placencia - W1999-01812-COA-R3-CV (Concur) View
This is a post-divorce action involving custody and relocation of the parties' minor child. Father, primary custodial parent, filed a petition to relocate, and Mother filed a petition for change of custody. The trial court awarded custody of the child to Mother, and Father appealed. This Court reversed the custody award and remanded the case to the trial court. Pending application for permission to appeal to the Supreme Court, Mother filed a petition for stay of execution and a temporary injunction and also requested a change of custody based on changed circumstances. After the Supreme Court denied the application for permission to appeal, the trial court entered its order denying Mother's request for a hearing on her petition and denying other relief sought. Mother has appealed to this Court.

Charles Shoffner vs. Billy Enterprises - W1999-01609-COA-R3-CV View
This is a slip and fall case. The plaintiff was injured while bowling at the defendant's bowling alley. While he was bowling, his beeper fell from his belt onto the bowling lane. The plaintiff crossed the foul line to retrieve his beeper, and slipped on the oiled surface. He sued the bowling alley for his injuries, asserting that the bowling alley failed to adequately warn him of the danger of crossing the foul line. The trial court granted a directed verdict in favor of the defendant, finding that the bowling alley had no duty to warn the plaintiff, and that the plaintiff was more than 50% at fault for the accident. The plaintiff appeals. We affirm, finding that, under the undisputed facts, the plaintiff was more than 50% at fault for the accident.

G.L. Omohundro, et al vs. Paul Harrison, et al - E2000-00666-COA-R3-CV View
This is a suit by investors in The Great Smoky Mountain Opry Corporation against a number of defendants including Paul Harrison. The trial court found a violation of the Tennessee Securities Act of 1980 and awarded the plaintiffs a judgment for $56,932.50. Harrison appeals, contending that the judgment should be reversed. We affirm.

State, Ex Rel., Tammy Davenport vs. Gerald Partridge - E1999-02779-COA-R3-CV View
This appeal from the Hamilton County Juvenile Court concerns whether the Juvenile Court erred in determining the child support obligation of the Appellant, Gerald Lamont Partridge. We vacate the order of the Juvenile Court and remand for further findings of fact.

Paul Farnsworth, a/k/a Ronnie Bradfield vs. Donita Moore - E2000-01623-COA-R3-CV View
The Plaintiff, an inmate of the penal system of this State, sues the Warden of the Southeastern Tennessee State Regional Correctional Facility and certain other officials of the facility seeking monetary damages and an injunction based on five separate causes of action. The Trial Court dismissed his complaint, finding that because he refused to submit to a medical evaluation provided by the Defendant pursuant to the orders of the Court, the Court was unable to make an evaluation and as a result of his violation of Tenn.R.Civ.P. 41.02, dismissed his suit. We affirm.

Robert Covert vs. Kimberloy Covert - E2000-00864-COA-R3-CV View
Robert Covert vs. Kimberloy Covert - E2000-00864-COA-R3-CV (Concur/Dissent) View
Mother and Father were divorced and Mother moved to Oklahoma with the two minor children. A Marital Dissolution Agreement was incorporated into the final decree. The MDA provided that in return for Mother giving up all rights to Father's military retirement pay, Father would pay all marital debt. Father's separation from the military was anticipated at the time of the divorce. Father received severance pay upon his separation, not retirement pay because he only had 17 years of service. The Trial Court found that the pay Father received upon his separation was severance pay rather than retirement, and was considered income for the purposes of determining child support. The Trial Court, however, did not award Mother any of the pay for child support. The Trial Court also ordered Mother to either provide transportation for the children one way from Oklahoma on two major visitations per year or Father was to receive credit of $200 against his child support for providing transportation both ways. Mother appealed. We affirm the judgment of the Trial Court.

Sharon Kelly vs. George Evans, III - E1999-00417-COA-R3-CV View
This is a suit initiated by Sharon S. Sarli (now Kelly) against George Leroy Evans, III, wherein she sought a determination that he was the father of her child. After Mr. Evans stipulated that he was indeed the father of the child, the Referee and the Juvenile Judge made various determinations relative to custody, child support and the like. Mrs. Kelly, being dissatisfied with a number of the determinations in the Referee's last order which on appeal was in the main affirmed by the Juvenile Judge, filed this appeal. We vacate the judgment of the Juvenile Court and remand the case for further proceedings.

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Cases Posted the Week of (12/18/2000)
Next Generation, Inc. vs. Wal-Mart - M2000-00114-COA-R3-CV View
In this contract dispute, the jury awarded damages to Wal-Mart, Inc., and the Trial Court concurred. Next Generation, Inc., appealed raising issues as to the admissibility of evidence and the Trial Court's instructions to the jury. We affirm.

Arms vs. Stanton - M2000-00811-COA-R3-CV View
In what started out as an order of protection proceeding but later turned into a "divorce" action, the original plaintiff, James Vertner Arms, who was the counter-defendant in the "divorce" case, filed a third-party action against Richard D. Stanton, individually and doing business as Shiloh Family, Ltd. ("Stanton"). Stanton had purchased a tract of real property from the counter-plaintiff, Tammy Lou Arms, subsequent to the institution of her "divorce" action against Mr. Arms. The trial court determined that Mr. Arms and Tammy Lou Arms were not validly married; it proceeded to set aside the transfer as a fraudulent conveyance and awarded Stanton a judgment against Tammy Lou Arms for $50,000. Stanton appeals, arguing that the trial court erred in setting aside the conveyance. We reverse.

Castleman vs. Castleman - M2000-00270-COA-R3-CV View
Mother appeals the trial court's denial of her motion to set aside a default judgment awarding divorce to Father, distributing marital property, and awarding custody of the minor child to Father. Because no evidence was heard regarding factors which must be considered by a court in making these determinations, we reverse the trial court's denial of her motion to set aside the default judgment and remand this matter for a trial on the merits.

Henderson vs. Dept. of Safety - M1999-01911-COA-R3-CV View
Kenneth Henderson appeals pro se from an order of the Chancery Court of Davidson County dismissing his case for failure to prosecute his petition for review under Tennessee Code Annotated section 4-5-322 under which he sought judicial review of a judgment of Administrative Law Judge Marian Wall, which judgment had become final on December 29, 1995 with petition for reconsideration being denied on January 28, 1996. We affirm the action of the trial judge.

Moss vs. Vanderbilt Univ. Med. Ctr. - M1999-01321-COA-R3-CV View
Pro se Plaintiff appeals the dismissal by the trial court of his case on the basis of failure to assert a claim upon which relief can be granted. We affirm the action of the trial court.

Searle vs. Pfister - M2000-00731-COA-R3-CV View
The unmarried parents of a young child separated, and the mother subsequently filed a petition to modify the father's visitation so she could move to California with her new boyfriend. The trial court initially denied her petition, but reversed itself after the mother and the boyfriend married. On appeal, the father argues that the trial court erred because it failed to recognize the mother's vindictive motive. We affirm the trial court.

Seibers vs. Pepsi-Cola Bottling Co. - M1999-02559-COA-R3-CV View
This case involves a dispute between a lawyer and his former client over a fee in a personal injury case. The client discharged the lawyer before the case was concluded and agreed to give the lawyer a lien on the potential recovery for the work the lawyer had already performed. When the lawyer attempted to collect his fee after the case was settled by another lawyer, the former client asserted that the lawyer should forfeit his fee because he engaged in unethical conduct. Following a bench trial, the trial court found that the lawyer had "technically" violated Tenn. S. Ct. R. 8, DR 5-105(A) but that the lawyer's conduct had not prejudiced the client and that the client had waived his conflict-of-interest claims. Accordingly, the trial court awarded the lawyer $69,525.83 in legal fees and expenses. We affirm the trial court's judgment.

Stan Wallace Mosley vs. Carrie Lynn Mosley - E2000-01445-COA-R3-CV View
This appeal arises from a bifurcated trial in a divorce action. After hearing the parties' proof in the second phase regarding alimony, child support and division of property, the Trial Court entered a Judgment which the Trial Court designated as "final." The Judgment, however, does not satisfy the requirements of Rule 54.02 of the Tennessee Rules of Civil Procedure. The Trial Court did not decide the issue of whether excess retained earnings of Telescan, Inc., a company in which Stan Wallace Mosley ("Husband") is a 90% shareholder, should be imputed as income to Husband. The Judgment states that this issue will be considered by the Trial Court in the future. Husband appeals the Judgment but does not raise the issue of Telescan's excess retained earnings. Carrie Lynn Mosley ("Wife") contends that the Trial Court erred by failing to impute the excess retained earnings of Telescan to Husband's personal income for purposes of calculating his child support obligation. We dismiss this appeal because the Judgment is not a final judgment from which an appeal lies.

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Cases Posted the Week of (12/11/2000)
The Bogatin Law Firm vs. Hallum Motors - W2000-00409-COA-R3-CV View
Appellee, an Arkansas corporation, and Appellant, a Delaware corporation authorized to do business in Arkansas and Tennessee, entered into an asset sales agreement for the sale and purchase of assets relating to an automobile dealership in West Memphis, Arkansas. Earnest money was placed in escrow with the Bogatin Law Firm, PLC in Memphis, Tennessee. Dispute concerning the asset sales agreement arose, and both parties made claim to the earnest money. The Bogatin Law Firm filed a complaint for interpleader in Shelby County, Tennessee. Appellee filed a motion to dismiss based upon improper venue which the trial court granted. We reverse, finding that venue in Shelby County was proper and that Appellee submitted to jurisdiction in Shelby County, Tennessee.

Lindsey, Bradley & Maloy vs. Media Marketing Systems, Inc., et al - E2000-00678-COA-R3-CV View
This appeal involves a grant of summary judgment to Defendant Sam Cooper, the sole shareholder, president and CEO of his co-defendant, Media Marketing Systems, Inc. Lindsey, Bradley & Maloy ("Plaintiff") brought suit against Sam Cooper and Media Marketing for breach of contract stemming from an agreement between Plaintiff and Media Marketing. Plaintiff sought to pierce Media Marketing's corporate veil so as to render Defendant personally liable for the debt owed under the agreement. Plaintiff also made claims against Defendant for his alleged individual tortious conduct related to the agreement. Both Plaintiff and Defendant filed motions for summary judgment. The Trial Court denied Plaintiff's motion but granted Defendant's motion. Plaintiff appeals and argues that it is entitled to summary judgment on the issue of whether Media Marketing's corporate veil should be pierced due to Defendant's conduct. Plaintiff also contends that Defendant should not have been granted summary judgment because there are genuine issues of material fact. We reverse in part and affirm in part.

Elliott vs. The Blakeford at Green Hills - M2000-00365-COA-R3-CV View
The Director of Food Service at the defendant retirement home injured her hand on the job, and was terminated by her supervisor. She filed suit against her employer, claiming that she had been discharged in retaliation for making a workers' compensation claim. At the close of the plaintiff's proof, the trial court granted the defendant's motion for directed verdict. We reverse.

Fontenot vs. Fontenot - M1999-02322-COA-R3-CV View
This appeal arises from the trial court's division of marital property and martial debt, award of alimony, and award of attorney's fees. After reviewing the record and applicable law, the trial court's judgment is affirmed as modified.

Isbell vs. Travis Electric Co., et al - M1999-00052-COA-R3-CV View
After Plaintiff resigned from his job and attempted to start his own competing business, his former manager informed a mutual client of the circumstances surrounding his resignation. Plaintiff sued his former employer and its service manager, alleging slander, libel, defamation, and tortious interference with contract. The trial court directed a verdict for Defendants, and Plaintiff appeals, arguing that the trial court misapplied the substantial truth doctrine, failed to apply the doctrine of implication, and was incorrect in its finding that no contract existed between Plaintiff and his new company's main client. Plaintiff also insists that, by failing to grant a new trial so that he could add an allegation of invasion of privacy, the court ignored the proper legal consequences arising from the disclosure of a confidential drug test. For the following reasons, we affirm the decision of the trial court.

Moore vs. Moore - M1999-02301-COA-R3-CV View
In this divorce case, the husband argues that the trial court erred in the way it classified and distributed the parties' marital property. We agree that the trial court's implied classification of the parties' home on Pleasant Cove Road was erroneous as a matter of law, but we find that its disposition of the property was nonetheless within the court's authority and discretion. We accordingly modify the final decree to reflect our view of its correct classification, but otherwise affirm the trial court.

Owen vs. Martin - M1999-02305-COA-R3-CV View
The trial court found that a mother and her adult son had both breached an oral contract whereby the son agreed to pay off the mortgage on his mother's home and to permit her to remain there for the rest of her life, and the mother agreed to give the son her equity in the home upon her death, and to allow him to use a garage apartment in the home until that time. We reverse the trial court's finding that there was an enforceable contract between the parties, but we impress a resulting trust on the son's interest in the home, which inures to his mother's benefit.

Sheucraft vs. Roberts - M1999-01645-COA-R3-CV View
This is a custody dispute between the maternal grandparents, Petitioners, and the biological father, Respondent. The child, Lexie, was born to Dewey and Lisa Roberts in October of 1991 and was seven years of age at the June 1999 trial. In 1995, Dewey Roberts and Lisa Sheucraft Roberts separated, and Lisa Roberts and Lexie moved in with the Petitioners. Ms. Roberts and the child continued to reside with the Petitioners until her unexpected death in 1998 from a brain aneurysm related to a cocaine overdose. The Respondent has a history of drug and alcohol abuse and, at the time of trial, was involved in an abusive relationship with a female companion. The trial court, applying the "substantial harm" test of Bond v. McKenzie, 896 S.W.2d 546 (Tenn. 1995), found that to change the residential arrangements from the grandparents' home to the father's home would be devastating to the child and would result in substantial harm to her. The trial court further found that it is in the child's best interests to spend the majority of her time with the maternal grandparents. Respondent appeals and we affirm the judgment of the trial court.

Suntrust Bank vs. Johnson - M1997-00202-COA-R3-CV View
This appeal involves a dispute between a commercial bank and the Tennessee Department of Revenue regarding the bank's claim for a refund of the sales taxes paid in connection with defaulted retail installment sales contracts purchased from various automobile dealers. After the Department denied its refund claim, the bank sued the Commissioner of Revenue in the Chancery Court for Davidson County seeking a refund. Both parties eventually sought a summary judgment. The trial court granted the Commissioner's motion for summary judgment after concluding that it did not have jurisdiction to consider the bank's claim. Alternatively, the trial court held that the bank was not entitled to the requested refund because it was not the dealer who originally remitted the sales tax to the Department. We have determined that the trial court erred by determining that it lacked jurisdiction to consider the bank's refund claim. However, we have also determined that the trial court correctly concluded that the bank was not entitled to the requested refund because it was not the dealer who remitted the sales tax at issue.

Jill Rabuck vs. Robert Lewis Rabuck - E2000-00474-COA-R3-CV View
In this divorce case, Husband appeals the amount and type of alimony awarded to Wife and the Trial Court's award of Wife's attorney fees. The Trial Court first awarded Wife $5,800 per month alimony in futuro, but after hearing arguments of counsel on Husband's Motion to Alter or Amend, reduced the award to $4,800 alimony in futuro and $1,000 per month for 24 months as rehabilitative alimony. After the Trial Court's Judgment was filed, our Supreme Court held, in Crabtree v. Crabtree, 16 S.W.3d 356 (Tenn. 2000), that a concurrent award of rehabilitative and in futuro alimony is inconsistent. Accordingly, Wife may receive alimony in futuro or rehabilitative alimony but she may not receive both concurrently. We therefore modify the Trial Court's Judgment to reflect that Wife is awarded $5,800 per month alimony in futuro for 24 months, and $4,800 per month alimony in futuro thereafter. We affirm the Trial Court's award of Wife's attorney fees at trial but decline to award Wife's attorney fees on appeal.

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Cases Posted the Week of (12/04/2000)
Local 760 IBEW, et al vs. City of Harriman and Harriman Utility Board - E2000-00367-COA-R3-CV View
This appeal from the Roane County Chancery Court concerns whether the Chancery Court erred in determining that a collective bargaining agreement entered into between Appellant, Local Union 760 of the International Brotherhood of Electrical Workers, and Appellees, the City of Harriman and the Harriman Utility Board, is null and void. We affirm the decision of the Chancery Court and remand for further proceedings, if any, consistent with this opinion. We adjudge costs of the appeal against the Appellants.

Jeffrey Harris vs. Percy Pitzer - W2000-00187-COA-R3-CV View
This case involves the incarceration of the Appellant in the state of Tennessee pursuant to a contract between the Wisconsin Department of Corrections and Corrections Corporation of America. The Appellant filed a Petition for Habeas Corpus Relief in the Circuit Court of Hardeman County. The trial court entered an order granting the Appellee's Motion to Dismiss for failure to state a claim upon which relief could be granted. The Appellant appeals from the dismissal of his Petition filed in the Circuit Court of Hardeman County. For the reasons stated herein, we affirm the trial court's decision.

Joseph Canepari vs. George Summers - W2000-00527-COA-R3-CV View
This is a suit for the partition of land. The Appellees brought a Complaint for Partition of Land by Sale in the Chancery Court of Fayette County. The Appellants answered and brought a counterclaim requesting the trial court to order the Appellees' one third-interest in the property to be partitioned by sale to the Appellants. The Chancery Court of Fayette County found for the Appellees, ordering the property to be sold by partition.

Taylor Mehrhoff Co. - W1999-00413-COA-R3-CV View
Plaintiffs, Landowners, sued adjoining landowners, seeking a judgment determining the location of a disputed boundary line. The trial court found that Defendants had: (1) established record title to the disputed property; (2) established the boundary line in recorded deeds and trust deeds, and by the conduct, implied agreement, acquiescence and recognition of adjoining property owners; and (3) proven title by adverse possession of the disputed property. Plaintiffs-Landowners have appealed.

Edward Tuggle vs. AMISUB - W1999-02444-COA-R3-CV View
Patient sued hospital for injuries sustained when she fell after hospital personnel failed to respond to her call for assistance to go to the bathroom. Patient went to the bathroom without incident and then decided to bathe her feet while she was out of bed. Patient filled a pan of water and sat in a chair bathing her feet when the telephone rang. When she got up to answer the telephone across the room, her wet feet slipped on the floor, and she fell, sustaining injuries. The trial court granted hospital summary judgment, and patient has appealed.

Shirley Marcum vs. Michael Trippett - W1999-00255-COA-R3-CV View
This appeal involves the interpretation of a marital dissolution agreement pertaining to a division of marital property. The trial court interpreted the agreement to require Husband to begin paying $1,200.00 per month to Wife for her interest in the marital property, an insurance agency. Husband has appealed.

Robinson Property vs. Yoanne Russell - W2000-00331-COA-R3-CV View
This case arises out of a $23,800.00 debt incurred by appellee Yo Anne Russell at the Horseshoe Casino and Hotel in Robinsonville, Mississippi. The court below granted summary judgment to Yo Anne Russell because the court held that the debt represented by the drafts is unenforceable in Tennessee due to public policy considerations embodied in section 29-19-101 of the Tennessee Code. Plaintiff appeals from the court below, arguing that the trial court erred in granting summary judgment to Defendant Yo Anne Russell. For the reasons stated hereafter, we reverse the judgment of the trial court.

Allied Business vs. Abraham Musa - W1999-00378-COA-R3-CV View
This appeal involves a breach of contract regarding a commission owed for the sale of a business. Allied, the broker, claims that Abed Amro owes it a commission based on the contract between the parties. Amro, however, claims that he is not liable under the Listing Agreement even though it is undisputed that he signed the contract. The trial court held that Allied was not entitled to a judgment against Amro because Amro did not have an ownership interest in the business that was sold. We reverse.

Trau-Med vs. Allstate - W1999-01524-COA-R3-CV View
Plaintiff medical clinic filed a complaint against an insurance company and several of its employees alleging, inter alia, that the defendants tortiously interfered with their business relationship, that the attorneys supplied by the insurance company to represent its insured were guilty of abuse of process and that the defendants conspired to destroy plaintiff's reputation in business. The trial court dismissed the complaint for failure to state a claim upon which relief can be granted. Plaintiff has appealed.

Connie Givens vs. Ed Mullikin - W1999-01783-COA-R9-CV View
Plaintiff filed this action against defendant in an underlying personal injury suit and the defendant's liability insurance carrier, alleging that the defendants are vicariously liable for the actions of the attorneys the insurance company hired pursuant to its policy to represent the insured in defense of plaintiff's personal injury suit. The complaint alleges that said attorneys were guilty of abuse of process, invasion of privacy, inducing the breach of a confidential relationship, inducing the breach of an implied contract of confidentiality, and inducing the breach of an express contract. The trial court denied defendants' motions to dismiss, and this case is before this Court on a Tenn.R.App.P. 9 interlocutory appeal.

Eric Petty, a child - W2000-00907-COA-R3-CV View
This case involves an appeal regarding the lower court's determination that Eric Dylan Petty was a delinquent child. In February 2000, a petition was filed with the Juvenile Court of Obion County alleging that Eric Dylan Petty committed the delinquent acts of aggravated assault and vandalism. The juvenile court determined that Petty was delinquent and ordered him committed to the Tennessee Department of Children's Services. After a de novo hearing, the circuit court also declared Petty delinquent based on the acts of aggravated assault and vandalism and affirmed Petty's commitment to the Department of Children's Services. This appeal followed.

American Indemnity vs. Foy Trailer - W2000-00397-COA-R3-CV View
American Indemnity Company sought a declaratory judgment that its commercial general liability (CGL) policy did not cover claims made by Ms. Johnson against the Appellants in her federal court complaint and that it did not have a duty to defend Appellants in the federal action. The Chancery Court for Shelby County held that there was no coverage and no duty to defend. Appellants appealed. We affirm.

Robert Burton vs. Kent Gearin - W1999-01022-COA-R3-CV View
The Appellee was appointed by the Circuit Court of Weakley County to represent the Appellant in his petition for post conviction relief. The circuit court denied the Appellant's petition, and the Tennessee Court of Criminal Appeals affirmed. The Appellant filed a complaint for legal malpractice against the Appellee. The Appellant also filed a motion to hold the matter in abeyance until he was released from prison. The trial court failed to rule on the motion for abeyance. The trial court entered summary judgment in favor of the Appellee. The Appellant appeals the trial court's grant of summary judgment in favor of the Appellee and the trial court's failure to rule on the motion for abeyance. For the reasons stated herein, we reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion.

Mary Schremp vs. David Schremp - W1999-01734-COA-R3-CV View
Mother, the custodial parent of minor children, desired to relocate out of state to live with her new husband. Father protested the move and filed a petition in opposition. Finding that Mother's new husband could easily move to Memphis to live with his new family and that dislocating the children was not in their best interest, the trial court granted the petition. We affirm.

In re: Stephanie Ann Linville, a minor - M2000-01097-COA-R3-CV View
This appeal arises from the trial court's grant of an award of child support to the appellee, the child's paternal grandmother and legal custodian, from the child's mother. For reasons stated herein, we affirm the judgment of the trial court.

Lafferty vs. City of Winchester - M1997-00224-COA-R3-CV View
This appeal involves a dispute between the owners of a bed and breakfast and the City of Winchester regarding a proposed expansion of the business's bar and banquet facilities. When the city's Board of Zoning Appeals declined to approve the expansion, the owners of the bed and breakfast filed a petition for a common-law writ of certiorari in the Circuit Court for Franklin County challenging the Board's decision. After reviewing the record of the proceedings before the Board, the trial court determined that the Board acted within its discretion when it declined to approve the proposed expansion of the bed and breakfast. We affirm the judgment of the trial court.

Russo vs. Russo - M1999-02380-COA-R3-CV View
This appeal arises from an action for divorce initiated by Donald Joseph Russo ("Husband") against Debra Ann Russo ("Wife"). The trial court granted Wife an absolute divorce and alimony in futuro; awarded custody of the parties' minor children to Wife; ordered Husband to pay child support in the amount of thirty-two hundred dollars per month with additional child support of two thousand dollars per month to be placed in educational trust for parties' minor children; and awarded the majority of marital assets to Wife. Husband appeals.

Harry Barnett and Elizabeth Barnett, vs. Gary L. Lane and Donnal L. Lane - E2000-00967-COA-R3-CV View
Plaintiffs, purchasers of house from defendants, were awarded damages for defects in house not revealed by defendants. Plaintiffs appeal, asking punitive damages and an increase in compensatory damages. We affirm.

James W. Hunter vs. Shirley C. Hunter - E2000-00662-COA-R3-CV View
In this divorce case, Shirley C. Hunter ("Wife") appeals, arguing that the trial court erred (1) in classifying and dividing the parties' property; (2) in refusing to find James W. Hunter ("Husband") in contempt for failing to pay Wife's medical bills; (3) in restricting Wife's spousal support award to one of alimony in solido of $7,200; (4) in awarding Husband a judgment against Wife for $5,068.53 in connection with Wife's use of his vehicle; and (5) in failing to award Wife her attorney's fees. We vacate the trial court's judgment ordering Wife to pay for her use of Husband's vehicle. In all other respects, the judgment of the trial court is affirmed.

Beavers vs. The Lebanon Democrat Newspaper - M1999-02401-COA-R3-CV View
This appeal arises from an action initiated by Plaintiffs, Mae and Jerry Beavers, against the Defendant newspaper, the Lebanon Democrat, for libel and slander. The Beavers' claim arises out of two separate articles published by the newspaper. The trial court granted the newspaper's motion for summary judgment, holding that the first article was substantially true and the second article was a non-actionable opinion. The Beavers appeal.

General Bancshares vs. Volunteer Bank & Trust - M2000-00231-COA-R3-CV View
The Plaintiff, General Bancshares, Inc., filed a declaratory judgment action asking the Trial Court to declare a restrictive covenant in its warranty deed unenforceable. Defendant Volunteer Bank & Trust's predecessor in title of the property at issue originally placed the restriction on the property several years ago. Plaintiff contends, among other arguments, that the restrictive covenant does not bind it as a remote grantee because the restrictive clause does not contain specific "successors and assigns" language. Both parties filed Motions for Summary Judgment, and the Trial Court granted Defendant's Motion. Plaintiff appeals. We affirm.

Hodges vs. TN Atty. General - M2000-00550-COA-R3-CV View
This appeal arises from the dismissal of a prisoner's pro se complaint for failure to prosecute. The Chancery Court for Davidson County dismissed the complaint eleven months after it was filed because the prisoner had failed to provide summonses and copies of the complaint for service on the defendants. The prisoner has appealed to this court. Instead of arguing that the trial court erred by dismissing his complaint for failure to prosecute, the prisoner has simply renewed the assertions he made in the trial court that his sentence credits have been calculated incorrectly and that he should be released on parole. We determined that the trial court properly dismissed the complaint for failure to prosecute.

Kennedy vs. Kennedy - M1997-00219-COA-R3-CV View
This appeal involves a man's efforts to use his voluntary early retirement as a basis for ending his spousal support obligation. Three years after the divorce, the man filed a petition in the Circuit Court for Davidson County seeking to end his responsibility to pay child support. His former wife responded by filing a petition seeking to hold him in contempt for failure to pay spousal support. Following a bench trial, the trial court dismissed the man's petition, held him in contempt, and entered a $3,106 judgment against him for back spousal support. On this appeal, the man asserts that the trial court erred by declining to relieve him of his alimony obligation because of his inability to pay and his former spouse's lack of need. We affirm the trial court's judgment.

Mandrell vs. McBee - M2000-00108-COA-R3-CV View
This is a partnership dispute occasioned by the misappropriation of partnership funds by two of the five partners. In an earlier appeal in this case, this Court affirmed the judgment of the Trial Court awarding damages to the innocent partners but increased the amount of that judgment. This Court then remanded the case to the Trial Court, which heard further proof and made findings as to the distribution of partnership assets. In this appeal, a Defendant partner seeks reversal of the Trial Court's valuation and accounting of the partnership assets and computation of prejudgment interest. We find the concurrent findings of fact by the Special Master and the Trial Court are supported by material evidence in the record, and that the Special Master and the Trial Court properly interpreted this Court's earlier Opinion. Accordingly, we affirm the decision of the Trial Court in all respects.

David Roberts vs. Essex Microtel Assoc.,et al - E2000-01356-COA-R3-CV View
David Roberts vs. Essex Microtel Assoc.,et al - E2000-01356-COA-R3-CV (Concur & Dissent) View
Plaintiff registered as a guest at Defendant's hotel. For various reasons, the desk clerk asked to see Plaintiff's driver license. Plaintiff produced his driver license for inspection by the desk clerk. For those same reasons, the desk clerk later telephoned the police. She provided the 911 police dispatcher with certain information from Plaintiff's driver license. With this information, the police discovered that an individual with the same date of birth and a similar name was wanted in Florida on a narcotics trafficking charge. The police came to the hotel, questioned Plaintiff, and then took Plaintiff into custody. After detaining Plaintiff at the police station for two hours, the police determined that Plaintiff was not the suspect wanted in Florida and returned Plaintiff to the hotel. Plaintiff sued the hotel owner and the desk clerk for malicious prosecution, wrongful arrest, false imprisonment and invasion of privacy, but later proceeded only on the invasion of privacy and false imprisonment counts. The Trial Court granted Defendants' Motion for Summary Judgment. We affirm.

HMC Technologies Corp.vs. Siebe, Inc. - E2000-01093-COA-R3-CV View
In this declaratory judgment action, the plaintiff, HMC Technologies Corp. a/k/a HMC Technologies, Inc. ("HMC"), sued to enforce an indemnification provision contained in a proposal submitted to, and accepted by, the defendant, Siebe, Inc. - Robertshaw Tennessee Division ("Robertshaw"). Both parties moved for summary judgment. The trial court entered judgment in favor of HMC. We reverse.

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Cases Posted the Week of (11/20/2000)
Tinkham vs. Beasley - M1999-02809-COA-R3-CV View
Tinkham vs. Beasley - M1999-02809-COA-R3-CV (Dissent) View
This appeal involves the proper measure of damages for breach of a contract for real estate. Because the evidence does not preponderate against the trial court's explicit finding that the value of the house at the time of breach was the same amount as the contract price, and because the proper measure of damages is the difference between those two amounts, we must reverse the trial court's award of damages to the sellers.

Sammartano vs. Sammartano - M1999-00415-COA-R3-CV View
In this divorce case, the defendant/wife appeals complaining of an inequitable division of marital assets, an inadequate award of rehabilitative alimony and the denial of attorney fees. As modified herein, we affirm the decision of the trial court

Ford vs. Humphres - M1999-00423-COA-R3-CV View
This appeal involves a dispute over the estate of Ms. Thelma Humphres, who was found by the trial court to have died intestate owning a one-half interest in her home and the approximately twenty acres on which it was locataed. She also owned some personal items which sold for $1,355.50. Appellant, Joy Ford, one of Ms. Humphres eight children, believed that Ms. Humphres had executed a will leaving her mother's entire one-half interest in the home and property to her. Ms. Ford objected to the administration of her mother's estate by her brother, Appellee, Danny Humphres, and attempted to prove a lost will. Ms. Ford failed to prove a lost will, and the property was subsequently sold to pay the estate's debts. As Ms. Ford owned the other one-half interest in her mother's property, she objected to the sale of this property. She also objected to the allocation of costs and fees related to the sale and the general administration of her mother's estate. All of her objections were overruled. She now appeals the trial court's actions in these matters. We affirm the trial court.

Allman vs. Allman - M1997-00251-COA-R3-CV View
This appeal involves a dispute over the interpretation of a provision in the marital dissolution agreement giving the wife an automobile but requiring the husband to continue making the car payments. After the automobile was totally destroyed in a one-vehicle accident, the wife's insurance company paid the balance remaining on the car loan. After the husband refused to pay the wife an amount equal to the balance of the car loan, the wife filed a petition in the Circuit Court for Sumner County seeking to hold him in contempt. Following a bench trial, the trial judge ordered the husband to pay the wife $7,644.22 representing the balance of the loan when the automobile was destroyed, as well as $1,355 for her legal expenses. We have determined that the marital dissolution agreement allocated the risk of loss of the automobile to the wife and, therefore, reverse the $7,644.22 judgment. We have also determined that the $1,355 judgment must be vacated and that the case should be remanded for further proceedings.

Martino vs. Dyer - M1999-02397-COA-R3-CV View
The trial court granted the motion of an attorney seeking collection of a pro rata share of his fee from a hospital lien against his client's settlement. The effect of the trial court's order is to require the hospital to pay fees to an attorney it did not hire. We reverse the judgment.

Douglas Shanklin vs. UT Medical - W1999-01982-COA-R3-CV View
This appeal arises from a trial court's finding that a subsequent action by Doctor was barred under the doctrine of res judicata due to the court's decision in an earlier case. On appeal, Doctor argued that his earlier action for age discrimination and retaliation in violation of the Tennessee Human Rights Act was not the same as the current action, which involves breach of contract and unjust enrichment. We affirm the trial court's ruling.

The Pointe vs. Lake Mgmt. - W2000-00211-COA-R3-CV View
This appeal arises from a declaratory judgment action to determine rights in a privately-owned lake. Plaintiffs purchased land adjacent to the artificially-created lake for the purpose of developing residential lots. Subsequent to the sale of the property, Plaintiffs' grantor conveyed title to the lake to Defendant. Defendant claims it has the right to control use of the lake and that Plaintiffs have no right to lake access without Defendant's permission. The trial court granted Defendant's motion for summary judgment on the grounds that: (1) the lake is unnavigable, and no riparian rights can therefore flow to adjoining landowners; (2) the Defendant, as owner of the land subjacent to the lake, has a right to the unimpeded use and control of the property; and (3) any use of the lake by the adjoining property owners without Defendant's consent would constitute a trespass. Plaintiffs appeal.

Estate of W.O. McIntyre - W1999-01700-COA-R3-CV View
This is a will contest. The decedent committed suicide after writing several notes in which he expressed his wish that the bulk of his estate pass to his wife of eighteen years, with specific bequests to his children. The decedent's children contested the validity of the disposition, arguing that the decedent lacked testamentary capacity to execute a will at the time that he wrote the notes. After a jury trial, the jury found that the decedent had testamentary capacity and that the handwritten notes constituted a valid holographic will. The children appeal, arguing that the burden of proving testamentary capacity should have been placed on the will's proponents, due to the decedent's depression and resulting suicide, and that the evidence did not support the jury's verdict. We affirm, finding that the trial court did not err in its instructions on the burden of proof and that there is material evidence to support the jury's verdict.

Donnie Johnson vs. Centex - W2000-00072-COA-R9-CV View
This appeal arises from an injury by Worker who fell through a hole in the roof while working on a construction site. Worker brought suit against the Owner, the General Contractor and Builder, who through its construction of precast concrete panels had created the hole. The trial court granted Owner and General Contractor summary judgment on the basis that both were acting in the capacity of a general contractor and were thus exempt from suit under the workers' compensation statutes. Builder, even through it no longer had control of the area where Worker was injured, was denied summary judgment on the basis that OSHA regulations created a non-delegable duty to prevent injuries. We affirm the trial court's granting of summary judgment to Owner and General Contractor. We reverse the trial court's denial of summary judgment for Builder, finding that OSHA regulations do not create a duty for Builder.

State vs. Demetrius McNeil - W2000-00276-COA-R3-CD View
Juvenile convicted in criminal court in de novo trial of appeal from juvenile court appeals the criminal court order denying his motion pursuant to Tenn.R.Crim.P. 36 to correct a clerical error. Juvenile asserts that although the criminal court ruled that there was no clerical error, the criminal court, in failing to remand the case to a juvenile court, committed plain error for which relief should be granted. Upon finding that the criminal court had no jurisdiction to retain the case, the case is remanded to the criminal court to modify the sentencing order by remanding to the juvenile court.

Pam Hamblen vs. Richard Davidson - W2000-00144-COA-R3-CV View
This appeal arises from a personal injury suit in which Plaintiff alleged that her ex-husband had negligently infected her with the virus which causes genital herpes. The trial court granted Defendant's motion for summary judgment, finding that: (1) the one-year statute of limitations, T.C.A. § 28-3-104, barred Plaintiff's claim; (2) Plaintiff failed to establish that Defendant knew or should have known he had herpes, and owed her a duty to warn her of his condition; and (3) Plaintiff failed to establish that she contracted the virus from Defendant. Plaintiff appeals.

Jennifer Thomas vs. Stephen Thomas - W1999-00284-COA-R3-CV View
In this divorce case, the trial court, among other things, made a division of marital property, awarded Wife alimony in solido, made an award of child support, and ordered payments of various debts by the parties. Both parties have appealed presenting issues concerning the court's above stated actions.

Rhonda Moffitt vs. Paul Moffitt - W1999-02403-COA-R3-CV View
In this divorce case, Husband appeals the trial court's final decree as it deals with the division of marital property, the division of marital debt (including crediting Wife for monies spent prior to the sale of the marital home), and child support arrearages. We affirm.

Harold Angus vs. Western Hert. - W2000-00902-COA-R3-CV View
This appeal arises from a dispute between Contractor and Insurer over insurance coverage during a building demolition project. During the project, Contractor knowingly damaged an adjacent structure. When suit was brought against Contractor by the owners of the adjacent structure, Insurer refused coverage. The trial court found Insurers' policy and endorsement to be ambiguous and thus unenforceable. We disagree, finding that the policy and endorsement are not ambiguous and that they clearly state that Insurer will provide no coverage for intentional damage to other structures. We reverse the trial court's ruling and find that Insurer is not liable under the policy.

Johnny McGowan vs. Robert Gibson,e t al - E2000-01385-COA-R3-CV View
Plaintiff's Complaint was dismissed by the Trial Court on the basis plaintiff's action was time barred by Tenn. Code Ann. §41-21-806. We vacate and remand.

E.L. Billingsley and Oneida Farms, Inc. vs. Alvin D. Escue - E2000-00463-COA-R3-CV View
The Trial Judge granted defendant summary judgment on grounds the action was time-barred. We affirm.

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Cases Posted the Week of (11/13/2000)
Linda Taylor vs. James Taylor - E2000-00476-COA-R3-CV View
This appeal arises from a divorce in which the Trial Court awarded Linda May Taylor ("Wife"), age 58, alimony until she reaches age 65 or she retires, whichever occurs first. Wife was also awarded the parties' home. The Trial Court granted James Arnold Taylor ("Husband"), age 61, his interest in the marital home but ordered that Wife does not have to pay Husband for his interest in the marital home until Wife reaches age 65. Husband appeals. We affirm.

Mark Addaman, et al vs. Gwendolyn Lanford - E2000-00816-COA-R3-CV View
Plaintiffs, residential sellers, sued an appraiser for negligent misrepresentation and breach of contract when her appraisal was far below the contract sales price of their home. The sales contract was contingent upon the appraised value being equal at least to the sales price. The buyers declined to purchase the home based on the failure of that contingency. Defendant moved for a directed verdict because the appraisal was performed at the request of and for the benefit and guidance of the mortgagor and not the seller, and because the sellers did nothing in reliance upon the appraisal. The Trial Court denied the motion for a directed verdict on the negligent misrepresentation theory. The jury returned a verdict in favor of the Plaintiffs. Recovery for the tort of negligent misrepresentation requires that the information provided by the Defendant be given for the Plaintiffs' benefit and guidance and that the Plaintiffs justifiably rely on that information. While Plaintiffs were affected by the appraisal, it was not done for their benefit and guidance, and they did not justifiably rely upon the information. Therefore, Plaintiffs have no cause of action against the appraiser for negligent misrepresentation. The judgment is reversed, and the Complaint is dismissed.

Lawrence Westfall vs. Brentwood Svc. Grp, Inc. - E2000-01086-COA-R3-CV View
Lawrence O. Westfall filed suit against his former employer, Brentwood Service Group, Inc., seeking payment of post-employment commissions allegedly due him. The defendant counterclaimed for breach of a non-competition/non-disclosure agreement. Following a bench trial, the court below awarded post-employment commissions to the plaintiff and dismissed the defendant's counterclaim, finding that the parties had not agreed to the non-competition/non-disclosure agreement. The employer now appeals, claiming that the plaintiff is not entitled to post-employment commissions and that the trial court erred in failing to enforce the parties' alleged non-competition/non-disclosure agreement. We affirm.

A.W. Brewer vs. Fi-Shock, Inc. - E1999-01988-COA-R9-CV View
This is a Rule 9 interlocutory appeal for a determination as to whether federal district court had exclusive subject matter jurisdiction to hear this matter. The Appellee filed suit in Circuit Court averring that he was the owner of an invention known as "The Boss", and he had entered into a License Agreement with Fi-Shock, Inc., in which Fi-Shock agreed to manufacture, market and sell "The Boss" and compensate Mr. Brewer, and that Fi-Shock breached the agreement. Mr. Brewer further averred that Fi-Shock intentionally interfered with his property rights, thereby denying him compensation to which he was entitled and that his invention was protected by a United States Patent. Mr. Brewer sued for compensatory damages not to exceed $1,000,000. Fi-Shock filed a motion to dismiss averring that only the United States District Court had subject matter jurisdiction under 28 U.S.C. § 1338(a). The trial court denied the motion. Defendant sought an Rule 9 interlocutory appeal which was granted by the Trial Court and this Court. We affirm the decision of the Trial Court.

Sonny Gilliam, et al vs. Loriann Calcott, et al - E1999-02365-COA-R3-CV (Correction from 03/30/2000) View

Judd's Inc. vs. Dors L. Muir, et al - E1999-01836-COA-R3-CV View
In this appeal Doris and Allan Muir insist that the Chancellor was in error in not allowing their homestead exemption as to certain funds realized from the sale of real estate to satisfy a judgment previously entered against them. Their attorney, W. Richard Baker, Jr., insists that the Chancellor was in error in not enforcing a lien for his attorney fees that he claimed was properly perfected as to the same funds. We affirm.

Mitchell Bingham vs. Tammy Bingham - E1999-01768-COA-R3-CV View
In this post-divorce case, Mitchell Blain Bingham filed a petition seeking the custody of his minor child. The trial court, instead, awarded the child's custody to the child's paternal grandparents, who, prior to the trial court's order awarding them custody, were not parties to the action and had not previously petitioned for custody. Both of the child's parents appeal the award of custody to the paternal grandparents. We vacate the trial court's judgment and remand for further proceedings.

In re: Estate of Willette Bonita Carnahan - M1999-00494-COA-R3-CV View
This appeal arises from a will contest in which the defendant has appealed from a jury verdict invalidating a will on the grounds of unsound mind and undue influence. The deceased executed two wills. The first will was executed in 1985 naming the plaintiff who was a friend, employee, and the son of the family who cared for her in her later years as the sole beneficiary. The second will was executed in 1993 naming the defendant, a man who share cropped tobacco on her farm and was paid to mow her lawn, as the sole beneficiary. The plaintiff alleged that at the time the latter will was executed, the testator was of unsound mind and had been unduly influenced by the defendant. At trial, the jury returned special findings that the deceased was not of sound and disposing mind on December 29, 1993, when the second will was executed and that she was unduly influenced by the defendant in making the last will and testament. On appeal, the defendant presents three issues: (1) whether there was material, substantial evidence to support the jury findings, (2) whether the trial judge erred in instructing the jury regarding a presumption of undue influence and the burden of proof on finding a confidential relationship, and (3) whether the trial court erred in assessing court costs against the defendant and not awarding him attorneys fees. We affirm the judgment.

Mahan vs. Mahan - M1999-01366-COA-R3-CV View
In this divorce case, the husband appeals the award of custody of the children to the wife, the admission of certain evidence at trial, and the redistribution of marital property on a post-judgment motion following his bankruptcy. We affirm the trial court.

Burgess vs. Tie Co. 1, LLC - M1999-02232-COA-R3-CV View
In this slip and fall action the Trial Court granted defendant summary judgment. We vacate and remand.

Clifton vs. Acosta-Delgado - M2000-00253-COA-R3-CV View
This is a post-divorce child custody dispute. The mother filed a petition to regain custody of the parties' three children after she had entered into an agreed order in 1995 granting custody to the defendant father. After hearing testimony on, inter alia, the father driving while intoxicated with the children in the car with him, the trial court found a material change in circumstances, granted custody to the mother, and ordered the father to pay child support. The father appeals, arguing that there was not a material change in circumstances sufficient to warrant a change in custody, that the trial court inappropriately considered his child support arrearage prior to the 1995 agreed order, and that the trial court miscalculated his income, resulting in an unreasonably high child support award. We affirm, finding a material change in circumstances warranting a change in custody, and finding that the evidence does not preponderate against the award of child support.

Heatherly vs. Merrimack Mutual Fire Ins. Co. - M1998-00906-COA-R10-CV View
This extraordinary appeal involves a dispute between two homeowners whose house was damaged by fire and the two insurance adjusting companies hired by the homeowners' insurance carrier to investigate their claim. Believing that their claim had been fraudulently processed, the homeowners filed suit in the Circuit Court for Sumner County against their insurance carrier and the two adjusting companies. The three defendants moved to dismiss the complaint as to the adjusting companies. After the trial court denied the motions and declined to grant an interlocutory appeal, the two adjusting companies petitioned for a Tenn. R. App. P. 10 extraordinary appeal. We granted the application and now reverse the trial court's denial of the motion to dismiss because the homeowners have conceded that they have no breach of contract claim against the adjusting companies and because we have concluded that the homeowners' claims are barred by the statute of limitations.

Miller vs. Miller - M1999-00724-COA-R3-CV (Correction - originally filed 8/31/00) View
In this divorce, both Husband and Wife have appealed contesting the trial court's division of marital property and alimony awards. The division of marital property is affirmed, alimony awards are modified, and the case is remanded for a determination of the value of Husband's retirement plan and a proper division thereof.

Stacy's Carpet Steam Cleaning Co. vs. David McNeely, et al - E1999-01880-COA-R3-CV View
Stacy's Carpet Steam Cleaning Company d/b/a Bent Nail Construction, the Plaintiff, appeals a judgment from the Carter County Chancery Court. The Plaintiff's issues are whether the Trial Court erred in calculating the damages, erred in failing to award prejudgment interest, and erred in failing to enforce a mechanic's lien. The Defendants raise an issue insisting the parties reached an accord and satisfaction or a new contract. We affirm the judgment of the Trial Court pursuant to Rule 10 of this Court as to the Plaintiff's issues one and two and as to the Defendants' issue and modify its judgment as to the Plaintiff's issue three regarding enforcement of its lien.

Rentenbach Constructors, Inc. vs. Eli Bowen, et al - E2000-01213-COA-R3-CV View
This appeal from the Jefferson County Chancery Court concerns whether the Chancery Court erred in determining that Appellant, Rentenbach Constructors, Incorporated is obligated to indemnify Appellees, Mathews Corporation and Ball Corporation under the terms of a construction contract entered into between Rentenbach and Ball. We reverse the decision of the Chancery Court in this respect and remand for further proceedings, if any, consistent with this opinion. We adjudge costs of the appeal against the Appellees, Ball Corporation and Mathews Corporation.

Arthur Blair vs. Marilyn Badenhope - E1999-02748-COA-R3-CV View
Arthur Blair vs. Marilyn Badenhope - E1999-02748-COA-R3-CV (Dissent) View
Arthur Blair ("Father") petitioned the Trial Court to modify a prior custody decree entered by a North Carolina court. Marilyn Badenhope, the child's maternal grandmother, has had custody of the child since the child's infancy. This is Father's second attempt in the Tennessee courts to obtain a modification of the North Carolina decree. In this suit, the Trial Court denied Father's petition, holding that Father failed to show that a material change in circumstances had occurred such that substantial harm to the child would not result if Father was awarded custody. Father appeals and contends that the Trial Court erroneously found no showing of a material change in circumstances and that substantial harm would result to the child if the child was placed in Father's custody. The grandmother does not dispute the Trial Court's ultimate decision, but she contends that the Trial Court only had to inquire as to whether a material change of circumstances had occurred and did not have to determine whether substantial harm would result to the child if custody was changed. We affirm.

Andrews vs. Salter - M1998-00953-COA-R3-CV View
The defendant's automobile ran into the rear of the plaintiff's car. After the collision, the plaintiff learned that she had sustained a ruptured disk and commenced the underlying action, seeking compensation for both personal injury and property damage. At trial, the court admitted evidence that the plaintiff had been involved two prior accidents within the past ten months. The trial court granted a directed verdict to the plaintiff on the issue of liability for the accident, but left open the question of whether the defendant's actions caused the plaintiff's injuries. The jury awarded the plaintiff $2,500 in damages, notwithstanding the fact that her undisputed medical expenses were substantially higher. The plaintiff appealed, arguing that the admission of the prejudicial and irrelevant evidence of prior accidents was error and that the jury improperly speculated on the cause of her injuries. The evidence of the prior accidents was limited, included no proof of personal injuries, and included no connection between the mere occurrence of these accidents and the plaintiff's injuries. Because the evidence of the prior collisions invited speculation, we reverse.

In re: Estate of Ralph I. Cammack, deceased - M1999-02382-COA-R3-CV View
This is a dispute between the deceased testator's second wife and the two children of his first marriage. The testator and his wife executed mutual and reciprocal wills which passed the bulk of their estate to the survivor. The spouses agreed, and their wills reflected, that when the survivor died, the estate was to go equally to the testator's children. In conjunction with the wills, the spouses executed an agreement that they would not change their wills even after the death of the other. After the testator's death, the wife began dissipating the estate, selling the family home, and giving her own child the testator's expensive grandfather clock. In an effort to preserve the estate, the testator's children commenced the underlying action, seeking to establish a resulting trust. After the trial court granted the wife's motion for summary judgment, the testator's children lodged this appeal. Because testator's will gave the wife his estate in fee simple, she inherited the real property as tenant by entirety, and there is no clear and convincing evidence that the testator intended her merely to hold the property in trust for his children, we must affirm.

Clark vs. Lemley - M1999-01271-COA-R3-CV View
This case arises from a dispute between neighbors over the use of an old road which connected Appellant's landlocked farm to a public roadway. The road crossed Appellees' property. After Appellees erected a locked gate across the old road, Appellant sought injunctive relief to permit access to the old road. After a trial, the court found that the old road was never a public road and that no prescriptive easement existed. The court declined to provide the requested relief. Because the evidence does not preponderate against the trial court's findings, we affirm.

Jarvis vs. Jarvis - M1998-00905-COA-R3-CV View
This appeal involves the dissolution of a five-year marriage in the Circuit Court for Rutherford County. Following a bench trial, the trial court granted the wife a divorce on the ground of inappropriate marital conduct, divided the marital estate, and ordered the husband to pay long-term spousal support. The trial court also directed the husband to maintain the wife's health insurance for three years and to reimburse her for medical expenses incurred prior to the divorce. On this appeal, the husband takes issue with the decision to award the wife the divorce, the classification and division of the marital property, and the long-term spousal support award. We have determined that the spousal support award should be modified and that the remaining portions of the trial court's decree should be affirmed.

Stone vs. Stone - M1997-00218-COA-R3-CV View
This appeal involves a former spouse's efforts to extricate himself from the spousal support obligations contained in a marital dissolution agreement. Approximately one year after the entry of the divorce decree approving the agreement, the former husband requested the Chancery Court for Putnam County to set the agreement aside because he did not have independent legal advice and his judgment was impaired by antidepressant medication when he signed the agreement. The trial court modified portions of the decree but did not relieve the former husband of his spousal support obligation. Thereafter, the former husband filed a second motion seeking to terminate or reduce his spousal support obligations because of his former wife's improved financial circumstances. The trial court again declined to relieve the former husband of his obligation to pay spousal support. On this appeal, the former husband renews his argument that he should no longer be required pay spousal support because of his former wife's improved financial circumstance and his own weakened financial condition. We affirm the trial court's decision that the former husband has failed to prove the existence of a substantial, material change in circumstances that would warrant modifying his spousal support obligation.

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Cases Posted the Week of (11/06/2000)
Whittington-Barrett vs. Johnson - E2000-00700-COA-R3-CV View
This is a suit between two inmates of the State of Tennessee. The Plaintiff, a transsexual, seeks a declaratory judgment "to establish the rights of the Plaintiff," and damages, attorney fees and costs against the Defendant because of sexual harassment. The cause of action alleges violation of various sections of the Constitutions of the State of Tennessee and the United States of America and of the Civil Rights Act of 1964. The Trial Judge dismissed the complaint because there was "no claim of state action in Plaintiff's complaint, nor is this an employer/employee situation." We affirm.

Reagan vs. Connelly, et al - E2000-00451-COA-R3-CV View
C.M. Reagan filed this action seeking to collect a money judgment previously obtained against the defendant Dan Connelly ("Connelly"), which judgment was based upon Connelly's guaranty of a note executed by his brother-in-law. Following a bench trial, the court below found that Connelly had fraudulently conveyed three pieces of real property to the defendant corporation, Dan Connelly, Inc. ("the Corporation"). With respect to a fourth piece of property, the trial court found that its transfer to the Corporation was not fraudulent. The trial court, however, went on to disregard the separate identity of the Corporation and find that 96% of the value of the fourth piece of property was available to satisfy the underlying judgment. This determination was based upon the trial court's finding that Connelly owned that percentage of the Corporation's stock. The Corporation and its record shareholders appeal. We affirm in part and reverse in part.

Edmond Brothers Supply Co., Inc. vs. Boyle and Adams, et al - E1999-027310-COA-R3-CV View
Edmond Brothers Supply Company, Inc. ("Plaintiff"), a building materials supplier, sold materials to a contractor for use in a construction project for Bristol Regional Women's Center, P.C., ("Defendant"). Plaintiff did not send statements to Defendant because the contractor instructed Plaintiff not to bill Defendant. When the project was completed, the contractor took the Plaintiff's final bill to Defendant for payment. Defendant's office manager sent a check in full payment to Plaintiff, but Defendant stopped payment on the check and refused to pay the bill. Plaintiff brought suit against Defendant, individual defendants, and a partnership to enforce a materialmen's lien for the outstanding debt. All defendants denied enforceability of the lien. The Trial Court dismissed the action to enforce the materialmen's lien, dismissed the action against the individual defendants and the partnership, and granted judgment to Plaintiff against Defendant on an agency theory. The Trial Court found that the contractor had authority to make the purchases for Defendant and that since Defendant had used the materials in its building, Defendant was obligated to pay for them, despite its instruction to the contractor not to charge any materials for the project. Defendant appeals this judgment. We hold that the contractor had no actual, implied, apparent, or ostensible authority to charge building materials to Defendant. We reverse the judgment of the Trial Court, and dismiss the Complaint against Defendant.

Roden, et al vs. Heck, et al - E2000-00969-COA-R3-CV View
This case involves a chicken -- more specifically a rooster -- that allegedly ran "afoul" of the law. James Roden and his wife, Janet Roden, brought this action against their neighbors, Clark Heck, Sr., and Clark Heck, Jr., after Mr. Roden was injured by a chicken that had escaped from the defendants' property. The trial court granted the defendants summary judgment. We affirm.

Domincovitch vs. Wilson Co. Bd. of Zoning Appeals - M1999-02334-COA-R3-CV View
Petitioner/Appellant, Gregory Domincovitch ("Petitioner") made a request to the Wilson County Board of Zoning Appeals for a "use permissible on appeal" to establish a 250 foot communication tower on his A-1 zoned property. Defendant/Appellee, Wilson County Board of Zoning Appeals ("the Board") denied this request. Mr. Domincovitch petitioned for Writ of Certiorari to the chancery court and subsequently filed a Motion for Summary Judgment in that court. The chancellor granted Petitioner's Motion for Summary Judgment finding that the Board did not have jurisdiction to deny the permit for construction of the communications tower. The Board appealed the chancery court's decision. We affirm the chancery court's ruling finding that Petitioner had presented evidence fulfilling all requirements set out in Wilson County's zoning ordinance regarding cell tower location, and thus, the Board had no jurisdiction to deny the permit to Petitioner.

Inscoe, et al vs. Kemper, et al - M1999-00741-COA-R3-CV View
This appeal arises from a suit filed by Inscoe seeking the return of earnest money held in escrow for the purchase of Kemper's residence. When Inscoe decided not to purchase the residence, Kemper refused to return the earnest money. The trial court found in favor of Inscoe and ordered the return of the earnest money. In making its finding, the court stated that Inscoe's promise to buy was illusory and there was no meeting of the minds, thus the contract was void and unenforceable. Kemper appeals.

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Cases Posted the Week of (10/30/2000)
Jim Hockaday vs. Dennis Freels - E1999-02719-COA-R3-CV View
This is an action for conversion of a $10,169.59 check. Responding to the plaintiff's allegations, the defendant claimed he had authority to negotiate the check because he and the plaintiff had orally entered into a partnership or joint venture. Following a bench trial, the court below found that no such relationship existed and that the defendant had wrongfully converted the check. We affirm.

William Davidson vs. Richard Holtzman, et al - E2000-01091-COA-R3-CV View
The jury awarded the plaintiff, William Davidson, damages for breach of two oral contracts between Davidson and his former employer, the defendant Richard Holtzman, who, at the time the contracts were made, was the sole shareholder of the defendant Engel Stadium Corporation ("the Corporation"). Defendants appeal, arguing (1) that one of the agreements is barred by the Statute of Frauds; (2) that the same agreement is too indefinite to be enforced; and (3) that the trial court erred in admitting the testimony of another former employee of Holtzman. We affirm.

Scott Yother vs. Laine Yother - E2000-01046-COA-R3-CV View
In this post-divorce case, Elaine Hines Yother ("Mother") appeals from an order awarding primary residential custody of the parties' minor child, Avery Raechelle Yother (DOB: April 2, 1995), to the child's father, Scott Christopher Yother ("Father"). Mother argues (1) that the trial court lacked subject matter jurisdiction to modify the custodial arrangement decreed in the parties' divorce judgment; and, alternatively, (2) that the evidence preponderates against the trial court's judgment changing custody. Because we find that the trial court lacked subject matter jurisdiction to address the issue of custody, we reverse the judgment below.

City of Chattanooga vs. Kevin Davis - E2000-00664-COA-R3-CV View
City of Chattanooga vs. Kevin Davis - E2000-00664-COA-R3-CV (Concur) View
City of Chattanooga vs. Kevin Davis - E2000-00664-COA-R3-CV (Dissent) View
The defendant was found guilty of violating a city ordinance proscribing reckless driving. A Chattanooga city court judge imposed a "penalty" of $300. On his appeal to the Hamilton County Criminal Court, the defendant was again found guilty, but this time his punishment was set at $50. The trial court went further and permanently enjoined the City of Chattanooga from "imposing or trying to collect" fines or penalties in excess of $50 for ordinance violations. The trial court also declared the state statutes and city ordinance providing for the assessment of penalties up to $500 for such violations to be unconstitutional and/or invalid. We affirm the trial court's imposition of a $50 fine. We reverse the judgment of court declaring the statutes and city ordinance unconstitutional and/or invalid. We further reverse the judgment of the court enjoining the City from collecting fines or penalties in excess of $50.

Cheryl N. Buckner, et al vs. David F. Hassell, M.D., et al - E1999-02564-COA-R3-CV View
Ronald L. Buckner was diagnosed with a rare form of melanoma which ultimately resulted in his death. His wife, Cheryl N. Buckner, brought this medical malpractice action against her husband's family physician, Dr. David F. Hassell. The Trial Court excluded portions of the testimony of Mr. Buckner's dermatologist and dermatopathologist due to Ms. Buckner's failure to name these physicians as expert witnesses in her answers to interrogatories pursuant to Tenn. R. Civ. P. 26. The jury returned a verdict in favor of Dr. Hassell, and thereafter, Ms. Buckner filed a Motion for New Trial based upon the weight of the evidence and the Trial Court's exclusion of the dermatologist's testimony regarding the standard of care. The Trial Court denied the Motion. On appeal, Ms. Buckner contends that the Trial Court erred in excluding the testimony at issue because Dr. Hassell did not suffer any prejudice from these physicians not having been identified as expert witnesses in Plaintiff's answers to interrogatories as his attorney was aware of the dermatologist's opinions prior to his deposition for proof, and because each of these treating physicians whose testimony was excluded was not a Rule 26 expert witness. We affirm.

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Cases Posted the Week of (10/23/2000)
Dunlap vs. Fortress Corp. and Covenant Health - E2000-00103-COA-R3-CV View
Plaintiff's action for personal injuries sustained at defendant's fitness center was dismissed by the Trial Court because plaintiff's agreement with the center contained an exculpatory clause. We vacate the Judgment.

Thomas Fain Dalton vs. Lynda F. Dalton - E2000-00255-COA-R3-CV View
Father's Petition to change custody of the parties' minor children was granted. The mother's Petition for an increase in child support was dismissed. We ordered increase in child support to date of filing.

Beasley Cotton Co. vs. Ralph - W1999-00273-COA-R3-CV View
This appeal arises from a breach of contract between Farmer and Broker. After signing a contract to deliver cotton to Broker, Farmer failed to do so. Broker was then forced to purchase the cotton elsewhere for a substantial loss and brought suit to recover the losses. At the start of the trial, Farmer requested that the trial court dismiss the case and order the parties to proceed to arbitration. Finding that Farmer had waived his rights under the contract to arbitration, the trial court refused. Proceeding with the case, court found that Farmer had breached the contract and awarded damages to Broker. We affirm.

Russell vs. Russell - E1999-02742-COA-R3-CV View
This appeal from the Hamilton County Chancery Court concerns whether the Trial Court erred in awarding primary residential responsibility of the minor child to the Appellee, Burgess Stephen Russell. The Appellant, Linda Sharion Russell, appeals the decision of the Chancery Court. We affirm the decision of the Trial Court and remand for further proceedings, if any, consistent with this opinion. We adjudge costs of the appeal against the Appellant, Linda Sharion Russell and her surety.

Bailey vs. Bailey - W1999-01000-COA-R3-CV View
This is a divorce case involving child custody. Mother and Father are divorced and have one minor child. The trial court granted custody of the minor child to Father. Mother appeals, arguing that the trial court erroneously based its decision on her lack of relationship with her father, the child's maternal grandfather. We affirm.

Sandra Silverstein vs. William Rice - W1999-01336-COA-R3-CV View
This is a suit to enforce a past child support obligation. The mother filed suit against the father, seeking past due child support payments, health insurance premiums and medical costs for the parties' three minor children. The trial court held for the mother, and granted her a judgment for the child support arrearages, health insurance and medical costs, attorney's fees and pre-judgment interest on the child support arrearages. The father appeals, arguing, inter alia, that the trial court erred by failing to prorate his child support obligation as each child attained majority. We affirm, holding that the trial court was not required to prorate the child support obligation as each child attained majority, because the child support award was a lump sum for all of the children and the amount was below the guideline amount for the remaining minor children.

Cunningham vs. Cunningham - W1999-02054-COA-R3-CV View
This appeal involves a divorce after seven years of marriage. The trial court granted the wife a divorce, divided the property, awarded the wife rehabilitative alimony and alimony in solido, awarded child support for the parties' minor child, established an educational trust fund, and ordered the husband to maintain life insurance for so long as he is obligated to pay child support. On appeal, husband takes issue with all of the above and also raises the constitutionality of the child support guidelines. In addition, wife takes issue with the failure of the trial court to award her litigation expenses. We have determined that the trial court's judgment should be affirmed in part, reversed in part and remanded.

Shirley Williams vs. Donald Thrailkill - W1999-01032-COA-R3-CV View
This case involves visitation rights for an aunt of the minor child. In 1992, the aunt and her husband were granted visitation rights by the Shelby County Juvenile Court. In 1997, after the child's father had moved with the child to Tipton County, the aunt and her husband filed a petition in the Tipton County Juvenile Court to hold father in contempt for failing to abide by the visitation order, to change custody, and alternatively to enforce visitation. After an evidentiary hearing, the Tipton County Juvenile Court held that the prior Shelby County Juvenile Court order granting visitation to aunt was in full force and effect and incorporated the Shelby County order and its order by reference. Father has appealed.

Laurie Thornton vs. Countrywide Inc. - W1999-02086-COA-R3-CV View
This is a consolidated appeal of two cases, each involving a trust deed on residential real property owned by Husband and Wife as tenants by the entirety. Husband was individually indebted to the holders of the trust deeds, and wife joined in the trust deeds to convey her "marital" interest in the property. Wife contends that her execution of the trust deeds merely conveyed her survivorship interest and did not convey her current possessory interest. Also, as to one of the loans, Wife contends that it was a consumer loan, and the lender/holder of the trust deed violated the Truth and Lending Act, 15 USC § 1601 et seq. The chancery court granted summary judgment to the holders of the trust deeds, and Wife has appealed.

Matter of Fannie Barnhill - W2000-00289-COA-R3-CV View

Will contestant voluntarily dismissed chancery court proceeding to contest will. Subsequently, contestant filed another notice to contest the will. The trial court, on motion, dismissed the proceeding as barred, because it had previously been dismissed, and such an action is within an exception to Tenn.R.Civ.P. 41.01 (1). Contestant has appealed.

Blumberg vs. Dept. of Human Svcs. - M2000-00237-COA-R3-CV View
Frederic Blumberg ("Blumberg") filed a petition against his wife in the Sumner County Circuit Court, seeking all his wife's marital assets and an increase in his minimum monthly maintenance needs allowance. On September 16, 1998, the Sumner County Circuit Court issued an Order requiring Mrs. Blumberg to pay as support for the benefit of Mr. Blumberg, all of her monthly income. Subsequently, Blumberg applied for Medicaid benefits on behalf of Mrs. Blumberg, administered by the Tennessee Department of Human Services ("DHS"), for which he was approved. On October 26, 1998, Blumberg received notice from DHS that his request for an income allocation was denied. Thereafter, Blumberg requested an administrative hearing appealing the denial of spousal allocations. On December 8, 1998, an administrative hearing with DHS was held, and Blumberg's appeal was denied. The Chancery Court affirmed the decision of the DHS, finding that the support order was not validly adjudicated because of lack of notice to DHS. This appeal followed.

Hall vs. Metro Gov't - M1999-01590-COA-R3-CV View
On September 11, 1997, Dr. Bill M. Wise, Director of Schools for the Metropolitan Nashville Public Schools, sent Appellant Cecilia F. Hall ("Ms. Hall") a letter informing her that he had presented charges against her to the Metropolitan Board of Public Education ("Board") recommending her dismissal. Ms. Hall requested in writing a hearing before the Board concerning the charges brought against her. The Board convened for the hearing on March 17, 1998. Before the hearing the two parties reached what they thought was an adequate settlement. However, the proposed settlement agreement was never signed by Ms. Hall. Subsequently, the Board terminated Ms. Hall on June 1, 1998. Ms. Hall filed a Petition for Writ of Certiorari with the Davidson County Chancery Court seeking judicial review pursuant to Tenn. Code Ann. § 49-5-513. The Board filed a Motion for Summary Judgment on the grounds that Ms. Hall waived her right to hearing and was properly terminated. The trial court granted the Board's motion. On October 28, 1999, Ms. Hall filed a Notice of Appeal and this litigation resulted.

Hunt vs. Claybrooks, et al - M1999-01582-COA-R3-CV View
This litigation began as a pro bono case. Defendant/Appellant James Goodner ("Goodner") represented himself pro se on October 22, 1997 at the General Sessions Court and received a judgment against him. Goodner timely appealed the decision to the Circuit Court. Plaintiff/Appellee Allie Mae Hunt ("Hunt") died after the case was appealed from the General Sessions Court to the Circuit Court for Davidson County, Tennessee. Thereafter, the trial court dismissed Goodner's appeal and this case took on a different character. David E. Danner ("Danner") filed a Rule 60.02 motion to get the case reinstated, allegedly accusing Hunt's attorney, C. Bennett Harrison ("Harrison") of "fraud, misrepresentation or other misconduct." Harrison filed a response to the motion containing a motion for Rule 11 sanctions against Danner. Subsequently, Danner asked for sanctions against Harrison, which were denied. Hunt's case was reinstated, but the trial court ordered Danner to pay attorney fees of $100 to Harrison as a sanction of Rule 11. We affirm and modify the trial court's decision.

Madu vs. Madu - M1999-02302-COA-R3-CV View
This appeal involves the dissolution of a three-year marriage between a naturalized citizen and a foreign national attending school on a temporary student visa. Soon after the parties were divorced by agreement in the Circuit Court for Davidson County, the foreign national sought to set the divorce aside because of its effect on her efforts to remain in the United States. The trial court declined to set the divorce aside. The foreign national asserts on this appeal that the trial court should not have declared the parties divorced and that the trial court erred by denying her motion for a new trial based on newly discovered evidence. We have determined that the record supports the trial court's decision to declare the parties divorced and that the trial court did not err when it denied the foreign national's post-trial motion. Accordingly, we affirm the judgment.

Rackley vs. DeKalb Co. Fire Dept. - M2000-00885-COA-R3-CV View
A purchaser of real property invited the DeKalb County Volunteer Fire Department to burn down a house on the property for training purposes. After the house was destroyed, the seller re-took possession of the property, because the buyer failed to pay the rest of the purchase price. The seller brought suit against the County for inverse condemnation and trespass. The trial court dismissed the complaint. We affirm.

Simmons vs. Harris - M2000-00227-COA-R3-CV View
The basis of this litigation began as a discrimination suit filed against Middle Tennessee State University ("MTSU") on March 2, 1995. The Appellant Tracy Simmons (‘Simmons") hired the Appellee James Harris ("Harris") to represent him in his action against MTSU. The discrimination suit was ultimately dismissed on May 10, 1995. Simmons then appealed to the Sixth Circuit Court of Appeals, and on July 11, 1997, the Court of Appeals affirmed the dismissal. Simmons subsequently filed a complaint against Harris with the Board of Professional Responsibility, which was later dismissed. Harris then brought an action against Simmons for attorney's fees. The controversy now before us concerns the suit brought by Simmons alleging legal malpractice, malicious prosecution, and abuse of process against Harris. On October 14, 1999, Harris filed a Motion for Summary Judgment and on December 14, 1999, the trial court granted Harris' motion, dismissing claims for malicious prosecution, abuse of process, and legal malpractice. Thereafter, Simmons submitted a Motion to Reconsider, which was denied. This appeal ensued.

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Cases Posted the Week of (10/16/2000)
Neely vs. McDonald - M2000-00099-COA-R3-CV View
This appeal involves a negligence claim asserted against two members of the Nashville Metropolitan Police Department. The Davidson County Circuit Court dismissed the case on the grounds the action was precluded by the Tennessee Governmental Tort Liability Act.

Horton vs. Parole Eligibility Review Bd. - M1999-02617-COA-R3-CV View
An inmate in custody of the Department of Correction filed a petition for a common law Writ of Certiorari alleging that the Board of Paroles acted arbitrarily and illegally in denying him parole. The trial court entered a motion to dismiss for failure to state a claim upon which relief can be granted. This appeal followed and we affirm the trial court.

Geldreich vs. Hall - M1999-02258-COA-R3-CV View
This appeal arises from a suit initiated by Geldriech ("Investors") alleging breach of fiduciary duty, fraud, and conversion by Hall in his capacity as corporate officer. When Hall failed to answer and appear for hearing, Investors' motion for default judgment was granted. Thereafter, Hall filed a motion to strike the default judgment that was denied by the court below. Hall appeals the trial court's failure to grant him relief from the default judgment.

Clark vs. Farrell - M1999-01945-COA-R3-CV View
This is an appeal by the defendant from an action of the trial court in assessing discretionary costs against the defendant. The trial court entered an order of dismissal with prejudice on finding that "the parties have settled all matters in controversy . . ." which order was approved for entry by counsel for both parties. The plaintiff filed a motion for discretionary costs pursuant to Tenn. R. Civ. P. 54.04(2). The trial court then granted discretionary costs to the plaintiff in the amount of $2,185.75. We reverse.

Rutherford Co. Bd. of Ed. vs. Rutherford Co. Comm. - M1999-00288-COA-R3-CV View
This is a declaratory judgment action on undisputed facts. The question for disposition is whether the Public Building Authorities Act of 1971 authorizes the Rutherford County Commission to direct the Rutherford County Public Buildings Authority to hire architects, select a contractor and prepare school building design plans for presentation to the Rutherford County School Board. The trial court held that it is the responsibility of the Rutherford County Board of Education to plan, locate, erect and furnish public schools in Rutherford County and that the Rutherford County Commission was without authority to direct the Rutherford County Public Buildings Authority to act in this respect. We affirm the trial court.

Tammy C. Powell vs. Charley Crisp, et al - E1999-02539-COA-R3-CV View
This is a suit wherein Tammy C. Powell, formerly Bird, seeks custody of her minor children, Joshua Daniel Bird (DOB 2/2/86) and Cherish Richelle Bird (DOB 8/25/88), who are now in the custody of her parents. The Trial Court was of the opinion that the Court of Indian Offenses of the Eastern Band of Cherokee Indians, located in Cherokee, North Carolina, the Court which initially awarded a divorce to Richard Bird and later granted custody of the children to the maternal grandparents, Charley and Peggy Crisp, had exclusive jurisdiction of any action seeking to change custody, and accordingly dismissed the petition. We affirm.

McBee vs. HCA Health Svcs. of TN - M2000-00271-COA-R3-CV View
This appeal involves a hospital patient who was injured in a fall two days following surgery. The patient and her husband filed suit against the hospital in the Circuit Court for Davidson County alleging that her attending nurse had negligently permitted her to ambulate without adequate assistance and support. The hospital filed a motion for summary judgement supported by the attending nurse's affidavit stating that she had complied with the applicable standard of care for the post-operative ambulation of surgical patients. The patient did not submit any countervailing expert affidavits, and the trial court granted the hospital's summary judgment motion. On this appeal, the patient asserts that she should not have been required to file countervailing expert affidavits either because her complaint was based on simple negligence or because the attending nurse's negligence was so plain that no expert testimony was required. We find that the patient's complaint is for medical malpractice and that the attending nurse's conduct is not so plainly negligent that it obviates the necessity of expert proof. Accordingly, we affirm the trial court.

Peltz vs. Peltz - M1999-02299-COA-R3-CV View
The issue on appeal is whether a notary was negligent when she attached her certificate to a forged signature on a deed. The Chancery Court of Williamson County held that she was not. We affirm.

In the Matter of C.D.B., S.S.B. & S.E.B. - M2000-00232-COA-R3-CV View
This case involves the termination of parental rights. Upon a petition filed by the Tennessee Department of Children's Services, the Montgomery County Juvenile Court entered a final decree terminating the Appellant's parental rights.

Ward vs. Turner - M1999-00719-COA-R3-CV View
This appeal arises out of a custody dispute between maternal and paternal grandparents. The issue of custody arose after the children's parents were killed in an automobile accident. The Overton County Circuit Court reversed the judgment of the juvenile court and awarded custody to the maternal grandparents.

Russell Graves vs. Kraft Foods - W1999-02010-COA-R3-CV View
This appeal arises from an appeal made from general sessions court to chancery court. The appellee, Kraft General Foods (Kraft), appealed a general sessions judgment to chancery court. Appellants, Mr. Graves and Ms. Cross, filed motions to dismiss, while Kraft filed a motion to transfer to circuit court. The chancery court denied the motions to dismiss and granted the motion to transfer. On review, we find that the chancery court lacked any subject matter jurisdiction over the appeal. In addition, we find no statutory authority providing for chancery court to transfer such appeals. As such, Kraft did not make a timely appeal of the general sessions judgment. The circuit court's denial of the motions to dismiss is reversed.

Alfred Tompkins vs. Annie's Nannies - W1999-00372-COA-R3-CV View
Plaintiffs' nine year old child, Alexandria, while under the direction of her day care center, broke both kneecaps while participating in a downhill race. Plaintiffs sued the day care center on a negligence theory, arguing that the day care center breached their duty of care. The trial court directed a verdict for the day care center, finding that the injuries sustained by the nine year old were not foreseeable, and, thus, no duty of care arose. Additionally, at trial, plaintiffs' counsel made an offer of proof whereby testimony was introduced that two girls fell and bumped heads in a race immediately preceding Alexandria's. The trial court excluded this testimony from the jury. Plaintiffs allege error. We affirm.

General Construction vs. Greater St. Thomas - W1999-00829-COA-R3-CV View
This appeal arises from a building contract dispute. Owner and the General Contractor disagreed on several issues of cost and construction. When the dispute could not be settled, the parties sued each other for breach of contract. The General Contractor was awarded a judgment and the Owner filed a ‘Motion to Alter or Amend/New Trial' not signed by the Owner's trial attorney. The General Contractor filed a ‘Motion to Strike' the Owner's motion, stating that an ‘attorney of record' had not filed the motion within the required period. Upon receiving a copy of the General Contractor's motion, the Owner's trial lawyer signed the motion. Nevertheless, the trial court granted the ‘Motion to Strike.' On appeal, Owner argued that an undisputed ‘attorney of record' had signed the motion as permitted under the Tennessee Rules of Civil Procedure. We agree that the trial court's granting of the ‘Motion to Strike' was in error and remand this case for consideration of the Owner's ‘Motion to Alter or Amend/New Trial.'

Mickey Billinsley vs. Diane Billingsley - W1999-00338-COA-R3-CV View
This case concerns a husband's efforts to terminate his obligation to pay his ex-wife $216.67 per month in alimony in futuro because of the post-divorce increase in his former wife's income. The trial court denied the husband's petition, finding that there had not been a change in circumstances sufficient to warrant the termination of the spousal support obligation. We affirm.

Christyal Simmons vs. Jimie Simmons - W1999-01393--COA-R3-CV View
This appeal arises from a petition by a non-custodial Father for a modification of his child support obligation. After several delays, the court refused to modify the Father's obligation on the basis that he had fallen behind on his support payments between the filing of the petition and the date upon which the court finally considered the matter. In addition, the trial court found him in contempt of court for failing to make his payments and ordered his incarceration. On appeal, Father argues that the trial court improperly refused to modify his child support obligation upon his first request. In addition, he asks that this court vacate the contempt ruling on the basis that he did not willfully disobey the court's order. We remand to the trial court for a modification of the Father's child support obligation based on his current income and order this modification prospectively applied from the date of his first petition. We also vacate the trial court's contempt ruling.

Jerry Worrell vs. Ann Worrell - W1999-01786-COA-R3-CV View
This appeal arises from a dispute over insurance proceeds between Nephews, as remaindermen of their Aunt's life estate, and their Aunt, as the life tenant of certain property. The trial court awarded the Aunt sole rights to insurance proceeds obtained after the destruction of that property to the exclusion of the Nephews. The Nephews appeal that ruling as well as the trial court's omission of certain hearsay testimony, and its failure to award them declaratory judgment. We affirm the rulings of the trial court.

Purchased Parts vs. Royal Appl. Co. - W1999-01550-COA-R3-CV View
This appeal involves a dispute over jurisdiction. The court below dismissed the case for lack of personal jurisdiction over the defendant, Royal Manufacturing Corporation. Appellant Purchased Parts Group, Inc. appeals from the trial court's decision.

William Fleming vs. Leatha Fleming - W1999-01978-COA-R3-CV View
This appeal involves the division of marital property and award of alimony in futuro in an action for divorce. Husband receives retirement income from the United States Army. Wife has an annuity through her employer which accrued during the parties' marriage. The circuit court awarded Wife $150 a month as alimony in futuro, but ruled that the parties should keep their retirement accounts as separate property. Husband has appealed, and both parties present issues for review.

Stephen Stamps vs. Victoria Dibonaventura - W1999-00534-COA-R3-CV View
This case arises from the Appellee's legal representation of the Appellant in a Petition for Post Conviction Relief. The Appellant's Petition was denied by the Criminal Court of Henry County and the Court of Criminal Appeals. After denial of his Application for Permission to Appeal by the Tennessee Supreme Court, the Appellant filed a Complaint of Legal Malpractice with the Circuit Court of Henry County. The trial court dismissed the Appellant's Complaint following a Motion to Dismiss filed by the Appellee. The Appellant appeals from the dismissal of his Complaint filed in the Circuit Court of Henry County. For the reasons stated herein, we affirm the trial court's decision.

City of Bolivar vs. Clarence Goodrum - W1999-01952-COA-R3-CV View
The city and county filed suit in chancery court against landowner to collect delinquent fees due for solid waste disposal assessed pursuant to authority granted by T.C.A. § 68-211-835 (g). The chancery court entered judgment against landowner for the amount of deliquent fees and pursuant to T.C.A. § 68-211-835 (g)(4) impressed a lien on the landowner's property. Landowner has appealed.

Bio-Medical vs. K.R. Chary - W1999-01727-COA-R3-CV View
This is a lawsuit to enforce covenants not to compete. The plaintiffs are private companies that own and operate dialysis medical clinics in West Tennessee. The plaintiffs brought an action against the defendant physicians to enforce covenants not to compete contained in agreements for the sale of the dialysis clinics and other related employment agreements. The trial court granted summary judgment to the physicians on the ground that the covenants are void because they are contrary to public policy. We affirm in part, reverse in part, and remand, finding the covenants enforceable to the extent that they do not prevent the defendant physicians from practicing medicine in their specialty.

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Cases Posted the Week of (10/09/2000)
Bennett vs. Putnam Co. - M1999-00716-COA-R3-CV View
This appeal arises from a collision involving a Putnam County ambulance parked at the site of a previous automobile accident. Plaintiff, a bystander who stopped to assist the motorist in the original accident, was severely injured when he was pinned between the parked ambulance and an approaching vehicle. Plaintiff filed suit against the County, alleging that the paramedics who responded to the original accident were negligent in their placement of the ambulance and in failing to control the accident scene pending the arrival of law enforcement personnel. Plaintiff also alleged negligence per se based upon the ambulance driver's violation of T.C.A. § 55-8-158. The circuit court under doctrine of comparative negligence allocated ten percent fault to county based on common law negligence and negligence per se for violation of statute. County appeals.

Consumer Advocate Div. vs. TN Reg. Authority - M1999-01699-COA-R12-CV View
This appeal involves price regulation of telecommunication companies pursuant to T.C.A. § 65-5-209. In September, 1998, United Telephone Southeast filed its 1998 Annual Price Regulation filing with the Tennessee Regulatory Authority. The filing proposed an increase in rates for non-basic services. In determining the amount of the increase, UTSE combined the calculations of annual maximum increases based on the rates of inflation for the three preceding years and applied this cumulative figure to UTSE's rates in effect in June 1995. The TRA approved the price regulation plan. The Consumer Advocate Division appeals that approval under Rule 12 of the Tennessee Rules of Appellate Procedure.

Cumberland Bank vs. Smith - M2000-00052-COA-R3-CV View
A creditor filed an action to sell a parcel of the debtor's real estate to satisfy a judgment lien on the property. The Chancery Court of Smith County granted the relief requested. The judgment debtor asserts on appeal that the underlying judgment and a nulla bona sheriff's return are void. For the reasons set forth in our opinion below, we affirm the action of the lower court.

State, ex rel Boren vs. Town of Orlinda - M1999-02240-COA-R3-CV View
This appeal arises from property owners' quo warranto challenge to an ordinance annexing their property. Property owners allege that the annexation was not reasonably necessary for their health, safety, and welfare and for the annexing municipality. Prior to trial, the trial court denied Defendant's motion in limine which sought to exclude testimony of the property owners, a comparison of the services offered by the annexing municipality and a neighboring municipality interested in annexing the disputed area, evidence regarding the public hearing on annexation, and evidence of the annexing municipality's other annexations. The jury returned a verdict for Plaintiffs, finding the annexation was not reasonable, and the trial court entered judgment thereon. Defendant appeals.

Sweatt vs. Bd. of Paroles - M1999-02265-COA-R3-CV View
Appellant Antonio L. Sweatt brings this Petition for a Common Law Writ of Certiorari regarding the Tennessee Board of Paroles' decision to deny him parole based on the seriousness of the offense that he committed. Appellant avers that the Board of Paroles acted illegally or arbitrarily in denying his parole because appellant asserts that his guilty plea agreement included the agreement that he would only serve thirty percent of his twenty-five-year sentence and then he would be released on parole.

Dept. of Transportation vs. Sunset Marine and Resort - M1999-00880-COA-R3-CV View
This appeal arises out of what can loosely be defined as a condemnation case. The State of Tennessee, acting through the Department of Transportation, received an easement from the Corps of Engineers for the purpose of building a bridge across Dale Hollow Lake in Pickett County, Tennessee. The bridge was to be built across land owned by the United States and operated by the Defendants as a resort and marina under a lease for commercial purposes. The State filed a Petition for Condemnation against the leaseholder in the Pickett County Circuit Court seeking to take the land under its power of eminent domain. The trial court determined that the State could not take the land based on the Supremacy Clause of the United States Constitution. However, the State had already begun work on the project, and, ultimately, the bridge was completed. The court held a trial to determine the damages which the leaseholder had suffered as a result of the bridge being placed across the leasehold. The trial court granted a partial directed verdict and awarded the leaseholder $287,115. The trial court also awarded the leaseholder $100,000 as attorneys' fees in lieu of injunctive relief. The State appeals from the partial directed verdict and the award of attorneys' fees.

Allen vs. Allen - M1999-00748-COA-R3-CV View
In this divorce case, Husband appeals the trial court's decree as it deals with the division of the marital property (including an award to Wife a part of military retirement), alimony, and child support. We affirm as modified.

Bryant vs. Bryant - M1999-01280-COA-R3-CV View
Petitioners filed a petition to terminate the parental rights of the biological father and for adoption of two minor children based on abandonment by the father. On the first appeal, this Court reversed the trial