TN AOC - Court of Appeals Opinions 4th Qtr 2001

The following Opinions are available for download:

Cases posted the week of 12/24/2001
Richard Crowe vs. First American - W2001-00800-COA-R3-CV View
McNairy County - Owner of a pickup truck sued the bank that financed the purchase for conversion after the bank repossessed the truck. The trial court entered judgment on a jury verdict for plaintiff in the amount of $250,000.00. Bank appeals. We affirm in part reverse in part and remand.

Joseph Pierce Sr. vs. CCA - W2001-00595-COA-R3-CV View
Hardeman County - Plaintiff, an inmate at a correctional facility, filed a complaint against the facility's private management company and its employees, alleging negligence, intentional infliction of emotional distress, assault and battery, medical malpractice under Tennessee state law, and violations of prisoner's rights under the United States Constitution. The trial court dismissed the complaint for failure to state a claim upon which relief can be granted. Inmate appeals. We reverse and remand.

Johnson vs. CCA - W2001-00595-COA-R3-CV View
Hardeman County - This is an appeal from an order of the trial court granting a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. We reverse in part and affirm in part.

Mitchell Anderson vs. Dr. Ken Warren - W2000-02649-COA-R3-CV View
Gibson County - Buyers of home sued sellers for damages resulting from numerous defects in home not disclosed to buyers and in direct contradiction of the representations made about the property. The trial court found sellers had fraudulently misrepresented the condition of the property and awarded damages. Sellers appeal. We affirm.

Myrtle Brown vs. Norma Daly - W2001-00953-COA-R3-CV View
Shelby County - This appeal involves the disputed ownership of real property. Appellee claims title to the land by prescription, or in the alternative, under the doctrine of laches. After a jury trial, the trial court entered a judgment in favor of Appellee. Appellants assert that the trial court erred by admitting a check into evidence as proof that Appellee's predecessor in interest lived on the property without the permission of Appellants. We agree that the trial court erred by admitting the check, but we affirm the judgment of the trial court because the record contains material evidence to support the jury's findings and corresponding verdict.

Ricky Brown Sr. vs. C.O.I. Majors - W2001-00536-COA-R3-CV View
Hardeman County - This appeal arises from the dismissal of the Appellant's petition for writ of certiorari seeking review of disciplinary action and the confiscation of property. The Circuit Court of Hardeman County dismissed the Appellant's petition for writ of certiorari for the Appellant's failure to comply with section 41-21-801, et seq. of the Tennessee Code, for lack of subject matter jurisdiction, and for failure to state a claim upon which relief can be granted. The Appellant appeals the dismissal of his petition for writ of certiorari. For the reasons stated herein, we affirm the trial court's decision.

Indymac Mortgage vs. John/Emma Kauffman & Joe Kirsch - W2000-01453-COA-R3-CV View
Shelby County - This case involves the equitable subrogation of a mortgage. The plaintiff filed a complaint to enjoin the defendants from executing foreclosure on property and to request equitable subrogation, seeking to have priority over the defendants' lien, which was recorded first. The trial court granted the plaintiff's request for subrogation. The defendants appeal. We reverse, finding that the evidence does not support a grant of equitable subrogation.

Guy Varnadoe vs. Shelton McGhee Jr. - W2001-00075-COA-R3-CV View
Shelby County - This appeal arises from a breach of contract claim brought by the Appellee against the Appellants in the Chancery Court of Shelby County. The trial court entered a consent order, referring the case to a special master. Pursuant to the consent order, the trial court directed the special master to conduct an investigation and report his findings to the trial court. The special master conducted an investigation and submitted his report to the trial court. The special master concluded that the Appellee was entitled to full payment under the contract but that the Appellants were entitled to a set-off. The trial court entered a judgment in the Appellee's favor and gave the Appellants a set-off. The trial court ordered that the fees approved by the special master be divided equally between the Appellants and the Appellee.

Comm. DOT vs. Frances Patrick & Frank Duncan - W2001-00397-COA-R3-CV View
Hardin County - This appeal involves the owner of an undivided five-sixths interest in property acquiring the remaining one-sixth interest from her co-tenants under the doctrine of title by prescription. The circuit court made finding of facts indicating that the prescriptive holder of the property held the property exclusively and uninterrupted for more than a twenty year period. Further, the circuit court found that no co-tenants were under a disability to assert their rights during the twenty year period and that no permission was given to the prescriptive holder to possess the property. Based on these findings of fact, the circuit court ruled that under the doctrine of title by prescription, the prescriptive holder had acquired full title in the property. For the following reasons, we affirm the decision of the circuit court.

Scarlett/Patrick Spencer vs. James Aydlotte - W2001-00995-COA-R3-CV View
Gibson County - This is a suit for the termination of parental rights. The Appellants filed a petition in the Chancery Court of Gibson County to terminate the Appellee's parental rights to his child. Following a hearing, the trial court entered an order denying the Appellants' petition. The Appellants appeal the trial court's order denying the Appellants' petition to terminate the Appellee's parental rights. For the reasons stated herein, we affirm the trial court's decision.

Richard Norton vs. Randy Eckman - W2001-00762-COA-R3-CV View
Hardeman County - The Plaintiff, an inmate in a correctional facility, has appealed the trial court's grant of Defendant's motion to dismiss for failure to state a claim upon which relief can be granted. We reverse the order of dismissal and remand to the trial court to dispose of the Plaintiff's summary judgment motion.

Dorothy Owen vs. George Summers - W2001-00727-COA-R3-CV View
Fayette County - This is an action to set aside a warranty deed. Plaintiff-Grantor filed suit on February 11, 1997, to set aside a deed executed July 11, 1989, on the grounds of fraud and mental incompetency. The defendant grantee denied fraud and mental incompetency and affirmatively relied upon the seven-year statute of limitations. Following a jury trial, which ended in a mistrial, the parties stipulated that the case be submitted to the chancellor who conducted the trial for a nonjury determination from the trial transcript and trial exhibits. The chancellor found that the seven-year statute of limitations had been tolled by virtue of the grantor's mental incompetence, the deed was procured by fraud, and that the grantor was mentally incompetent on the date of the execution of the deed. The chancellor rescinded the deed. Defendant-Grantee has appealed. We affirm.

Thomas Wynns III vs. Rae Cummings - W2000-02156-COA-R3-CV View
Shelby County - This case involves a dispute between Thomas Clinton Wynns, III ("Thomas") and Rae Ann Cummings ("Rae Ann"), the son and granddaughter of Mrs. Leola Wynns ("Leola"), concerning Leola's mental capacity and ability to manage her own affairs. Plaintiff, Thomas, holder of a power of attorney from his mother, filed a complaint against the defendant, Rae Ann, seeking to have Rae Ann turn over to him all of Leola's assets in possession of Rae Ann. Rae Ann filed an answer to the complaint and a petition for appointment of a conservator for Leola and for an injunction against Thomas from removing any more of her assets. After a nonjury trial, the trial court found that the court had jurisdiction to appoint a conservator for Leola; that the facts warranted the appointment of a conservator; that the power of attorney held by Thomas and a will executed by Leola in 1998 were void, and that the quit claim deed executed on April 22, 1999, in favor of Thomas, was also void. Thomas appeals. We affirm in part, vacate in part, and remand.

Eddie Cooley v. Joe May - M2001-01162-COA-R3-CV View
Sequatchie County - This appeal involves a state prisoner's efforts to obtain an accounting for the sentence credits he earned while incarcerated in the Sequatchie County Jail. After the prisoner discovered that the Tennessee Department of Correction had received no information from the Sheriff of Sequatchie County regarding his sentence credits, he filed a petition for writ of mandamus in the Circuit Court for Sequatchie County seeking to compel the sheriff to calculate his sentence credits and forward the information to the Department. The sheriff filed a pro se response asserting that the prisoner forfeited any sentence credits he may have earned by violating his parole. Thereafter, the District Attorney General for the Twelfth Judicial District moved to dismiss the prisoner's petition for lack of subject matter jurisdiction. The trial court granted the motion and dismissed the petition. The prisoner has now appealed. We have determined that the trial court erred by concluding that it lacked subject matter jurisdiction to consider the prisoner's petition. Accordingly, we reverse and remand the case for further proceedings.

Patricia Gore v. George Gore - M2000-02412-COA-R3-CV View
Williamson County - This appeal arises from a complaint for divorce filed by the Appellee in the Circuit Court of Williamson County. The trial court awarded the Appellee a divorce on the grounds of inappropriate marital conduct and adultery. The trial court divided the marital property and ordered the Appellant to pay the Appellee alimony in futuro and child support for the parties' two minor children. The trial court ordered the Appellant to maintain life insurance to secure the alimony and child support obligations. Additionally, the trial court entered a permanent injunction restraining the Appellant from taking the children in the presence of the Appellant's girlfriend.

Susan Green v. Leon Moore, et al. - M2000-03035-COA-R3-CV View
Williamson County - This appeal arises from the breach of a settlement agreement entered into by the Appellants and the Appellee. The Appellee filed a complaint against the Appellants in the Circuit Court for Williamson County, seeking damages for loss of reputation, embarrassment, humiliation, lost wages, loss of earning capacity, and loss of the ability to advance. The Appellants filed a motion to dismiss on the basis that the action was barred by the statute of limitations. The trial court granted in part and denied in part the motion to dismiss.

Wanda Grubbs v. Rae Pilkington - M2000-02965-COA-R3-CV View
Maury County - Plaintiff was injured when attacked by defendant's dog on August 7, 1996 at defendant's Maury County residence. Plaintiff filed suit against defendant on August 7, 1997. Process was returned September 12, 1997, with notation "unable to locate, moved to KY." On November 30, 1998, the trial court dismissed the complaint for failure to renew process pursuant to Tenn.R.Civ.P. 3. On August 6, 1999, plaintiff filed another suit against defendant, and she was duly served by certified mail at her Kentucky address. The trial court granted defendant's motion for summary judgment finding that from the undisputed facts, plaintiff could not rely upon the tolling statute, T.C.A. § 28-1-111, and that plaintiff's action is barred by the one-year statute of limitation. Plaintiff appeals. We affirm.

Ishaaq (aka Alonzo Stewart) v. Dept. of Correction, et al. - M2000-01957-COA-R3-CV View
Davidson County - Ishaaq, a prisoner in the Department of Corrections serving a combined 130 year sentence for Class X felonies committed prior to July 1, 1982, seeks to rescind a waiver by which he chose, in 1987, to gain the sentence reduction credit benefits applicable to him under Tennessee Code Annotated section 41-21-236. He seeks to rescind the waiver under the belief that he would thereby become eligible for mandatory parole. The trial judge dismissed his complaint, and we affirm the action of the trial court.

Lois Miller v. James Miller - M2001-00501-COA-R3-CV View
Davidson County - In this appeal from the Chancery Court for Davidson County Dr. Richard Wilson, the Plaintiff/Appellant, contends that the Chancellor erred in affirming an Administrative Judge's decision that Dr. Wilson engaged in conduct warranting his dismissal as a tenured faculty member at the University of Tennessee at Chattanooga, the Defendant/Appellee, for violation of the University's policy against sexual harassment. We reverse the judgment of the Chancery Court and remand for further proceedings consistent with this opinion. We adjudge costs against the University of Tennessee at Chattanooga.

David Pitts v. Floyd Blackwell - M2000-01733-COA-R3-CV View
Franklin County - This appeal involves the decision of a probate court to approve the amended first and final accounting of a conservatorship and award attorney's fees for the conservator's defense of the accounting. The conservator, owner of a funeral home, conducted a $26,367.75 funeral for the conservatee. An interested party objected to approval of the funeral expenses and a hearing was held. The probate court ordered the conservator to return the proceeds from a prepaid burial life insurance policy to the estate, but confirmed the accounting in all other respects. For the following reasons, we affirm in part, reverse in part, vacate in part and remand for further proceedings.

Doris Sanders v. Samuel Sanders, Jr. - M1998-00978-COA-R3-CV View
Davidson County - This appeal involves a former spouse's right to post-judgment interest on an award of alimony in solido. After her former husband failed to pay the alimony in solido required by the final divorce decree, the former wife filed a petition in the Circuit Court for Davidson County seeking $9,847.68 in post-judgment interest. The trial court recognized that the post-judgment interest had accrued but decided not to award the interest to the former wife unless her former husband failed to make his future periodic alimony payments in a timely manner. When her former husband began to pay his alimony payments late, the former wife renewed her request for the post-judgment interest. The trial court found that the former husband had been delinquent in his alimony payments but again declined to order the former husband to pay the post-judgment interest if he prepaid the remaining balance of his periodic alimony. The former wife has appealed from the trial court's repeated refusal to award her the post-judgment interest on her alimony in solido award. We have determined that the former wife was entitled to post-judgment interest as a matter of law and, therefore, that the trial court erred by failing to award her $9,847.68 for post-judgment interest.

Richard Wilson v. University of Tennessee at Chattanooga - M2000-02573-COA-R3-CV View
Davidson County - In this appeal from the Chancery Court for Davidson County, Dr. Richard Wilson, the Plaintiff/Appellant, contends that the Chancellor erred in affirming an Administrative Judge's decision that Dr. Wilson engaged in conduct warranting his dismissal as a tenured faculty member at the University of Tennessee at Chattanooga, the Defendant/Appellee, for violation of the University's policy against sexual harassment. We reverse the judgment of the Chancery Court and remand for further proceedings consistent with this opinion. We adjudge costs against the University of Tennessee at Chattanooga.

Dee Woolman v. Earl Woolman - M2000-02346-COA-R3-CV View
Williamson County - The Appellant and the Appellee are the parents of three minor children. Following the Appellant and the Appellee's divorce, they shared joint legal and physical custody of the children. The Appellant filed a Petition for Modification of Custody in the Circuit Court of Williamson County seeking to relocate with the children to Illinois. Following the close of the Appellant's proof at the hearing on the Petition, the Appellee made a Motion to Dismiss. The trial court granted the Motion to Dismiss and awarded attorney's fees to the Appellee. The Appellant appeals the order entered by the Circuit Court of Williamson County granting the Motion to Dismiss and awarding attorney's fees to the Appellee. For the reasons stated herein, we affirm in part and reverse in part the trial court's decision. We remand the case to the trial court for further proceedings consistent with this opinion.

Steffone McClendon vs. Dr. Elaine Bunick - E2001-02816-COA-RM-CV View

State ex rel. Benjamin Bowman, et al vs. City of Elizabethton - E2001-00597-COA-R3-CV View
Carter County - In this condemnation suit the landowners, whose property was originally proposed to be annexed but later excluded, appeal the Trial Judge's determination that they have no standing to prosecute the suit contesting the annexation. Other landowners who were in the original annexation ordinance and remained therein after the amended ordinances excluding realtors, sought to intervene and contest the City's right to annex. Their suit was likewise dismissed upon a finding by the Trial Court that they had not filed an exception within the 30-day period allowed by Statute. We affirm the Trial Court's resolution both as to the Realtors and the parties attempting to intervene.

Dept.of Children's Services vs. D.G.S.L. - E2001-00742-COA-R3-JV View
Knox County - In this appeal, D.G.S.L. ("Mother") challenges the termination of her parental rights, claiming there was insufficient proof to establish grounds for termination or that it was in the best interest of the children to terminate the parent-child relationship. Mother also claims her due process rights were violated when she did not receive notice of the initial hearings in this matter and, therefore, was not present or represented at those hearings. We affirm the decision of the Juvenile Court terminating Mother's parental rights.

Yolannda Solomon vs. Brad Hager, et al - E2000-02586-COA-R3-CV View
Hamblen County - This lawsuit finds its genesis in the construction of a residence. The plaintiff, Yolanda Solomon, filed suit against Allstate Insurance Company, alleging breach of contract and seeking damages and a bad faith penalty for Allstate's failure to pay her claim under a builder's risk policy covering her under-construction residence. Solomon later amended her complaint to seek additional damages under the Tennessee Consumer Protection Act. By way of a special verdict, the jury found (1) that the insurance policy provided coverage for Solomon's loss; (2) that Allstate had acted in bad faith in denying her claim; and (3) that Allstate had violated the Consumer Protection Act. As modified by the trial court, Allstate was ordered to pay $101,098, the full amount of the plaintiff's coverage less the deductible; a 25% bad faith penalty; $1,500 under the Consumer Protection Act; attorney's fees; discretionary costs; and prejudgment interest. Allstate appeals, challenging, among other things, the jury's finding of coverage, the assessment of the bad faith penalty, evidentiary and jury instruction rulings, and the amount of damages. We affirm.

Donna Sharon Presley vs. Clavin Herman Shadrick, et al . - E2001-00015-COA-R3-JV View
Anderson County - This is a custody and guardianship suit between petitioners, neither of whom is the biological or adoptive parent of the set of twins ("Children") who are at the center of this dispute. The parties in this appeal are, on one side, the Children's maternal great uncle and his wife, Calvin Herman Shadrick and Willie Mae Shadrick ("Shadricks"), and, on the other side, the children's paternal grandmother, Donna Sharon Presley ("Presley"). The trial court granted custody and guardianship of the Children to the Shadricks. Presley appeals. We affirm

In re: Estate of J. Crawford Murphy vs. Robert A. Murphy, et al. - E2001-01112-COA-R3-CV View
Sevier County - In this case the Probate Court held that the personal representative of the Estate of Mae Thompson Murphy did not have authority to dissent from the will of her husband, J. Crawford Murphy, and thereby take an elective share of his estate. We find that T.C.A. 31-4-105 gives the personal representative this right and reverse the judgment of the trial court.

Cases posted the week of 12/17/2001
Ellen Hopson Bell vs. William Hall Bell - E2001-01348-COA-R3-CV View
Greene County - In this divorce case, the trial court awarded Ellen Hopson Bell ("Wife") an absolute divorce, and ordered William Hall Bell ("Husband") to pay one-half of her attorney's fees. Husband appeals, arguing that the trial court erred in awarding attorney's fees without a hearing. We vacate the trial court's grant of attorney's fees and remand for further proceedings.

Philip Owens vs Bristol Motor Speedway, Inc. - E2000-02667-COA-R3-CV View
Sullivan County - In this putative class action suit, the plaintiff, Philip Owens, alleges that the defendant, Bristol Motor Speedway, Inc. ("Bristol Speedway"), engaged in a conspiracy to fix the prices of souvenirs sold at its racetrack. The trial court denied certification of the alleged class and granted Bristol Speedway's motion for summary judgment as to the plaintiff's individual claims. We affirm.

Sunnycrest Apartments, Ltd., et al vs. Williams Gaines, as Assessor - E2001-00885-COA-R3-CV View
Unicoi County - In general terms, this litigation focuses on the efforts of two real property owners to challenge, through administrative channels, the results – as applied to their properties – of a county-wide reappraisal of property in Unicoi County. The owners initially contested the values assigned to their properties for 1997. While their appeal for 1997 was pending, they filed another appeal, this time with respect to the 1998 tax year. After the values assigned by the tax assessor for 1997 were reduced on appeal, the property owners voluntarily dismissed their 1998 appeal and moved the State Board of Equalization ("the State Board") to apply the lowered 1997 values to 1998 and subsequent tax years. The Board denied this request and the property owners sought review in the trial court. The defendants moved the court to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. The trial court granted the motion and the property owners appealed. We affirm.

Pamela Cantrell vs. James Cantrell - E2001-00259-COA-R3-CV View
Bradley County - Pamela K. Cantrell ("Wife") filed for divorce from James Michael Cantrell, Jr. ("Husband"). This was the second time the parties had been married to each other. After a trial, the Trial Court awarded Wife a divorce on the basis of Husband's inappropriate marital conduct. The Trial Court divided the marital assets and awarded Wife rehabilitative alimony. Husband's main issues on appeal challenge the division of marital assets and award of rehabilitative alimony. We modify the rehabilitative alimony award and affirm the division of marital assets.

Wright Medical Tech. vs. Bernard Grisoni & Biogeneration Inc. - W2000-01302-COA-R7-CV View
Shelby County - This case involves the alleged use of confidential information by an ex-employee. The defendant employee worked for the plaintiff employer developing a medical product. The employee signed an agreement prohibiting the use of confidential information after his employment ended, but did not sign a non-competition agreement. The employee was terminated and thereafter began manufacturing a competing medical product. The plaintiff employer sued and obtained a temporary injunction prohibiting the ex-employee from manufacturing the product. The trial court later dissolved the injunction. Subsequently, it found the defendant employer liable for malicious prosecution and punitive damages, awarding damages of over $9 million. The employer appeals. We affirm in part, reverse in part and modify. We reverse the finding of malicious prosecution, holding that the evidence is insufficient to establish malice or lack of probable cause. We also reverse the award of punitive damages. We affirm the trial court's dissolution of the injunction against the former employee, and find that the compensatory damages are limited by the amount of the injunction bond. Consequently, the award of compensatory damages is modified to this amount.

Boardwalk Regency Corp. v. Roy Patterson and Trump Taj Mahal Assoc. v. Roy Patterson - M1999-02805-COA-R3-CV View
Putnam County - This appeal involves the efforts of two Atlantic City casinos to collect the gambling debts of a Tennessee resident. After obtaining default judgments against the Tennessee resident in New Jersey, the casinos twice attempted to file their judgments in the Chancery Court for Putnam County in accordance with the Uniform Enforcement of Foreign Judgments Act. On both occasions, the trial court declined to file the judgments after finding that they were irregular and that they were not properly authenticated. On the second occasion, the trial court also concluded that its refusal to file the first set of judgments precluded the casinos from filing the second set of judgments. The casinos have appealed. We have determined that the second set of judgments meet the requirements for filing and enforcement under the Uniform Enforcement of Foreign Judgments Act and that the casinos' unsuccessful efforts to file the first set of judgments does not prevent them from filing the second set of judgments. Accordingly, we reverse the trial court's order denying the application to enforce the foreign judgments.

Chantal Eldridge v. Putnam County - M2000-02963-COA-R3-CV View
This is a case about the Open Records Act as applied to the telephone records of a Drug Task Force. After the Chancery Court of Putnam County ordered the County to produce the records, the County appealed, arguing that the records fit an exception to the Act or that the County should be able at the plaintiff's expense to redact the records to delete confidential information. We modify the chancellor's order to allow the County to redact the records at their own expense.

Marie Hawks v. Michael Greene, Comm. Dept of Safety - M1999-02785-COA-R3-CV View
Marie Hawks v. Michael Greene, Comm. Dept of Safety - M1999-02785-COA-R3-CV ( Concur) View
Davidson County - The Tennessee Department of Safety, appellant, seeks review of the decision of the Chancery Court for Davidson County reversing the State's order forfeiting the vehicle owned by Ms. Marie Hawks, appellee. Because we find that forfeiture of the van, under the facts of this case, constitutes an excessive fine, we affirm the trial court.

John Pointer, et al. v. Tennessee Equity Capital Corp. - M1999-01934-COA-R3-CV View
Davidson County - A now defunct company and its owner sued a former creditor on the basis the creditor's control and management of the company damaged it so that it was no longer a profitable business, causing the stock to lose value. The trial court granted summary judgment to the defendants because the only competent evidence established that the company was never profitable and that no action by the defendants caused the demise of the company. We affirm.

Christell Staggs v. William Sells, et al. - M2000-03095-COA-R3-CV View
Putnam County - This case involves a claim of negligent misrepresentation in the sale of a home. The trial court found that Defendants' statements and actions constituted negligent misrepresentation of the condition of the property resulting in $25,000.00 in damages to Plaintiff. However, the trial court also found, applying principles of comparative fault, that Defendants were 60% at fault and Plaintiff was 40% at fault. A judgment of $15,000 was, thus, assessed against Defendants. Defendants appeal the court's finding of negligent misrepresentations, as well as the amount of damages determined by the court to be suffered by Plaintiff. We affirm.

Gloria Neuenschwander vs. Roy Neuenschwander - E2001-00306-COA-R3-CV View
Knox County - Trial Judge refused to recuse, set amount of alimony, and established rental value of parties' property. On appeal we reverse the change in the amount of alimony by the Trial Court, but otherwise affirm.

Cases posted the week of 12/10/2001
Alfred Bibbins, a/k/a Ed Owens vs. T.R. Gunn - E2001-01070-COA-R3-CV View
Hamilton County - The plaintiff filed a complaint seeking money damages and other relief against the defendant. The complaint alleges that the plaintiff is entitled to the requested relief based on past defamatory statements and anticipated "libelous and slanderous statements that damage plaintiff's reputation." The trial court dismissed the complaint "for lack of proof." We affirm.

Blake Burton, et al vs. Hardwood Pallets, Inc., et al - E2001-00547-COA-R3-CV View
Hamilton County - This appeal involves a dispute between the sellers of a business and the bank that financed a portion of the purchase price. The plaintiffs, Blake Burton and Michael Burton, entered into an agreement with the defendant, Hardwood Pallets, Inc., to sell the Burtons' pallet manufacturing business. As partial consideration for the sale, Hardwood Pallets executed an unsecured promissory note to the Burtons in the amount of $1,000,000. Additional consideration for the sale was obtained by way of an $800,000 loan from the defendant, AmSouth Bank, to Hardwood Pallets; as a part of the bank transaction, Hardwood Pallets pledged its assets as collateral. As a condition to the making of the loan, AmSouth required the Burtons to execute a subordination agreement. When Hardwood Pallets defaulted on the bank loan, AmSouth sold the collateral at a private sale. Litigation ensued. In addition to suing Hardwood Pallets and its shareholders, the Burtons sued AmSouth, alleging procurement of breach of contract and civil conspiracy to defraud. AmSouth filed a counterclaim, alleging that the Burtons breached the subordination agreement. It also filed a motion for summary judgment, asserting that it acted within its rights under the subordination agreement. The trial court entered a judgment in favor of AmSouth pursuant to Tenn. R. Civ. P. 54.02. We affirm.

Allison Coats v. Smyrna/Rutherford County Airport Authority - M2000-00234-COA-R3-CV View
Rutherford County - This action was brought by the plaintiff against the defendant following two requests by the plaintiff pursuant to the Tennessee Public Records Act for certain documents relating to the Smyrna Airport negotiations with Wiggins Group, PLC./Plane Station, Inc. The plaintiff alleged a statutory right to inspect certain documents. Ultimately, the trial court ordered all of the documents released to the plaintiff, but ordered correspondence addressed to or signed by the SRCAA attorney placed under seal pending appeal. The principal issue on this appeal is whether the appellee is entitled to the documents under seal pursuant to Tennessee Code Annotated section 10-7-503.

Kathie King v. Billy King - M2001-00275-COA-R3-CV View
Giles County - This is an appeal of a divorce proceeding presented to the trial court in an unusual manner, by agreement of all parties and all attorneys. Husband appeals the final judgment, and we affirm in part and reverse in part.

Milliken Group, Inc. v. Hays Nissan, Inc. - M2001-00506-COA-R3-CV View
Davidson County - This dispute arises from a contract for capital improvements entered into between the plaintiff and the agent of the defendant. The primary issues on appeal are whether the agent had the authority to bind the defendant to the contract, and whether the trial court erred in limiting the amount of damages awarded to the plaintiff. We affirm in part and modify the judgment.

Wills Electric Co., Inc. v. Hassan Mirsaidi - M2000-02477-COA-R3-CV View
Davidson County - A general contractor withheld the final payment for work completed by his electrical subcontractor, and the subcontractor sued for breach of contract. The trial court awarded the subcontractor the contracted-for amount, as well as pre-judgment interest and consequential damages. We reverse the award of consequential damages. In all other respects, we affirm the trial court.

Tip's PackageStore, Inc. vs. Commercial Ins. Mgrs., Inc. - E2000-02070-COA-R3-CV View
Knox County - Plaintiffs H. Wayne Tipton ("Tipton") and Tip's Package Store, Inc., (Tip's) brought this lawsuit against George P. Taylor ("Taylor") and Commercial Insurance Managers, Inc., ("Commercial") seeking indemnification for an agreed judgment entered against Tip's in a lawsuit involving the tragic deaths of two young University of Tennessee students. Plaintiffs claim that Defendants improperly obtained for them an "occurrence" liability policy as opposed to a "claims made" liability policy, thereby resulting in a lack of insurance coverage for the wrongful death claims. After a jury trial, the Chancery Court entered judgment in favor of both Plaintiffs in the amount of $1,000,000 for indemnification based on the jury's answers to interrogatories. Defendants appeal, arguing, among other things, that: (1) the statute of limitations had run; (2) a covenant not to execute entered into between the families of the deceased young women and Plaintiffs extinguished any potential liability; and (3) the jury's responses to interrogatories were fatally inconsistent. We affirm in part, reverse in part, and remand.

Michael Sampson, et al vs. Burl Winnie - No. E2000-02268-COA-R3-CV View
Roane County - Michael Blain Sampson and Grace Parton ("Plaintiffs") brought suit against Burl Winnie d/b/a Winnie High Tech Heating and Air Conditioning ("Defendant"), alleging breach of contract and violation of the Tennessee Consumer Protection Act. Defendant installed a new gas heating and air conditioning unit in Plaintiffs' home, and shortly thereafter, Plaintiffs became dissatisfied with the new unit's performance and Defendant's installation of the unit. The Trial Court dismissed Plaintiffs' Tennessee Consumer Protection Act claim but awarded Plaintiffs damages for breach of contract in the amount of $2,600. Plaintiffs appeal. We affirm.

Charles Hardy, et al. v. Robert Miller, et al. - M1998-00940-COA-R3-CV View
Davidson County - This appeal involves a dispute among members of a joint venture regarding their rights under suretyship agreements each member signed to guarantee a loan to the joint venture. After the joint venture defaulted, the bank looked to the members of the joint venture for payment of the debt. After three members of the joint venture paid the bank more than their prorated share of the debt, they filed suit in the Chancery Court for Davidson County against a former member, seeking contribution for the amount they had paid in excess of their prorated share. The former member counterclaimed, seeking to recover the payments he had made to the bank on the joint venture's debt. Following a bench trial, the trial court concluded that the members were co-sureties, awarded the three members a $150,145.10 judgment against the former member, and denied the former member's counterclaim. The former member appealed, arguing that his former co-venturers lost their right to contribution when they expelled him from the joint venture and that he is entitled to be reimbursed for the payments he made to the bank on the joint venture's debt. We have determined that each member of the joint venture agreed to be severally liable to the bank for the joint venture's debt and, therefore, that the members were not entitled to contribution from the former member. We have also concluded that the trial court correctly dismissed the former member's counterclaim.

Williamson County, et al. v. State Board of Equalization - M2000-03178-COA-R3-CV View
Davidson County - In this case, a consortium of counties and cities appeals the decision of the Chancery Court of Davidson County upholding the action of the Tennessee State Board of Equalization in applying depreciable life schedules forming a part of Tennessee Code Annotated section 67-5-903(f) to commercial and industrial tangible personal property and in holding that personal property is not constitutionally required to be valued at its actual value in the implementation of Tennessee Code Annotated section 67-5-1509(a). The only issues before this court are the constitutionality of Tennessee Code Annotated section 67-5-903(f) and Tennessee Code Annotated section 67-5-1509(a). We hold both statutes to be constitutional and affirm the Chancellor.

Guy Wilson, et al. v. Thompson Const. Co., et al. - M2000-03200-COA-R3-CV View
Sumner County - This is a suit by Guy Wilson and his wife Rhessa, owners of a building in Gallatin, Tennessee, against their general contractor in the construction of an addition to the building and against their electrical subcontractor. The complaint charges negligence in the use of a defective fiberglass ladder that broke as Guy Wilson was climbing on it to inspect the work. The trial court held that the general contractor, Thompson Construction Company, had breached no duty of care to Plaintiffs and that the electrical contractor, Gary R. Boyd, was an independent contractor for whose alleged negligence Thompson Construction Company was not vicariously liable. On such basis, the trial court granted summary judgment to Thompson Construction Company on all issues and, pursuant to Tennessee Rules of Civil Procedure 54.02, entered final judgment on all issues in favor of Thompson Construction Company. Plaintiffs appeal, and we affirm the trial court.

Daniel Taylor v. Donal Campbell, et al. - M2000-02843-COA-R3-CV View
Davidson County - On July 3, 2000, Appellant filed his civil complaint based upon punishment imposed for a disciplinary infraction while a prisoner at Turney Center in Only, Tennessee. On July 18, 2000, the trial judge, sua sponte, dismissed the complaint, and this appeal followed. We affirm the trial court.

American Child Care, Inc. v. Dept. of Human Services, et al. - M2000-01790-COA-R3-CV View
Davidson County - This appeal arises from the trial court's denial of appellant American Child Care, Inc.'s, request for attorney's fees resulting from an administrative action in which appellant's license was suspended and later reinstated. The trial court later granted appellee summary judgment on all issues, including attorney's fees. We reverse the trial court's decision denying the appellant's application and remand to the trial court to set a reasonable fee for the appellant.

Jo Anne Hofmeister v. John Hofmeister - M2000-00363-COA-R3-CV View
Davidson County - A series of post-divorce petitions resulted in a hearing on July 22, 1999 in which no witnesses were called nor any sworn testimony offered. Based on the petitions, the answers, and the statements of counsel, the court modified the final decree of divorce with respect to the husband's obligations to pay the wife's medical insurance premiums, medical expenses, and life insurance premiums. The court also denied the wife's petition for post-judgment interest on a payment to the wife that had been ordered in the final decree. The wife appeals on the grounds that (1) there were no pleadings or proof justifying the amendments and (2) the court erred in not granting her petitions. We affirm the trial court.

Vandal Doss v. Tennessee Farmers Mutual Ins. Co. - M2000-01971-COA-R3-CV View
Sumner County - This is an appeal from the Judgment of the Chancellor for Sumner County, Tennessee, dismissing Vondal Doss's Complaint against Tennessee Farmers Mutual Insurance Company, alleging breach of contract for failure to make payment for medical expenses pursuant to the medical payment coverage contained in two insurance policies and the Defendant's Counter-Complaint for subrogation. Doss had suffered a personal injury as a result of an auto accident which occurred on April 8, 1993 involving a third-party tort-feasor. Plaintiff/Appellant filed a Motion to Appeal on August 2, 2000. The Judgment of the Chancellor is affirmed on all counts. Doss's claim for additional post-settlement medical payments is denied as a result of the execution of the Release and Order of Compromise and Settlement which extinguished Tennessee Farmers' subrogation rights. Tennessee Farmers' claim for reimbursement is denied. Costs of this Appeal are assessed to the Appellant.

Robert Marengo & Francine Marengo v. Terry Bowen - M2000-02379-COA-R3-CV View
Putnam County - This is an appeal from the judgment of the Chancellor regarding the judicial dissolution of a continuing partnership. The trial court determined the withdrawing partner's debt should not be offset against his capital account in assessing his dissolution date value until the valuation of the business was made by the court, it was proper to add an additional $20,000 as a going concern adjustment to the valuation of the partnership, certain salary adjustments were proper, and a marketability and/or minority discount does not apply to the partnership. This Court concluded the trial court's determination offsetting the withdrawing partner's debt to the partnership as of the trial date was proper, the trial court erred in adding an additional $20,000 as a going concern value to the valuation of the partnership, the trial court's salary adjustment was proper, the trial court's refusal to apply a minority and/or marketability discount was proper, and the trial court's adjustment for a portion of the partnership's legal and professional expenses was proper. The judgment of the trial court is affirmed in part, reversed in part, and remanded for recalculation of the value of the withdrawing partner's interest as consistent with this order. Costs of this appeal shall be split between the appellant and the appellee.

Janet Harper, et al. v. Keith Churn, et al. - M2000-02353-COA-R3-CV View
Davidson County - This is a personal injury case arising from a vehicular collision. The plaintiffs, the Harpers, and the defendants, Mr. Churn and Mr. Beard, along with several others, were traveling together in a rented vehicle at the time of the collision. Mr. Churn was the driver of the vehicle; Mr. Beard was the pastor of the parties' church. At trial, the Harpers asserted that Mr. Churn was negligent in his operation of the vehicle. Additionally, the Harpers claimed that Mr. Beard was vicariously liable for their injuries, or in the alternative, that Mr. Beard was liable under the theory of negligent entrustment. The trial court granted Mr. Beard's motion for a directed verdict, and the jury found in favor of Mr. Churn. The Harpers appeal both decisions. We affirm the judgment of the trial court.

Anthony Myers, et al. v. Allen Bryan, III - M2000-03188-COA-R3-CV View
Williamson County - This case originated as a suit against a subdivision developer, W. Allen Bryan, III, ("Bryan"), for fraud, negligent misrepresentation, and violation of the Tennessee Consumer Protection Act, all predicated on the failure of a subdivision plat plan to reflect an existing drainage easement. Thereafter, Bryan filed a third-party complaint seeking indemnification from the surveyor who prepared the plat plan, Ragan-Smith, Associates, Inc. ("Ragan-Smith"), in the event Bryan was cast in judgment. On this Tenn. R. App. P. 54.02 appeal, we are presented with the issue of whether Bryan's cause of action for failure to reflect the drainage easement on the plat plan is barred by the four-year statute of repose for surveying errors. The court below granted Ragan-Smith summary judgment, finding that Bryan's claim is barred by the aforesaid statute of repose. Bryan appeals, arguing that Ragan-Smith is not entitled to summary judgment because, according to Bryan, the omission of the drainage easement is an engineering error, not a surveying error, and hence, so the argument goes, the subject claim is not barred by the four-year statute of repose for surveying errors. In the alternative, Bryan argues that even if the failure to reflect the drainage easement on the plat plan is a surveying error, his third-party complaint was timely filed. We affirm.

In re: Estate of M.L. Wakefield, Deceased - M1998-00921-COA-R3-CV View
In re: Estate of M.L. Wakefield, Deceased - M1998-00921-COA-R3-CV ( Concur/Dissent) View
Davidson County - This case involves a dispute over the compensation sought by two of three co-executors of a will that was drafted by one of them. The will provided that the executors should be "paid fees equal to those fees customarily charged by NationsBank of Nashville." The two co-executors each received an interim payment of $50,000 in compensation, and then sought additional payments under the fee schedule. The adult beneficiaries of the will challenged the amount of compensation sought by the co-executors. Disagreements and tensions continued between the beneficiaries and the two non-family co-executors, and, after strong suggestion by the probate court, the two non-family co-executors resigned. The probate court heard evidence on the fee request and refused to award additional fees. The court also ordered the attorney co-executor, co-trustee to disgorge over $70,000 in attorney fees paid by the testamentary trust's major asset, a corporation formerly owned solely by testator. The co-executors, co-trustees were the directors of the corporation, and the disgorged fees had been paid pursuant to a retainer agreement pre-existing the testator's death. On appeal, the two co-executors contest these rulings. In a cross-appeal, the beneficiaries argue that the probate court erred in denying their request that the co-executors disgorge additional fees. We modify the trial court's award of reasonable fees but otherwise affirm.
Elizabeth Hickman vs. Celia Jordan - W2000-03070-COA-R3-CV View
Madison County - This dispute stems from an accident in a restaurant parking lot in which a pedestrian, the plaintiff, was struck by a vehicle driven by the defendant, who was backing-up through the parking lot. The jury in this case found the defendant driver not at fault. We affirm.

Jessie Anthony vs. Melbourne Holland - W2001-00745-COA-R3-CV View
Madison County - This is an appeal from a judgment by the trial court, sitting without a jury, that the defendant's negligence was not the proximate cause of plaintiff's injuries. We hold that the evidence does not preponderate against the factual findings of the trial court. We therefore affirm.

Sandra Harris vs. John Harris - W2000-00358-COA-R3-CV View
Shelby County - This case involves a dispute over child support. After the mother and father divorced, the father agreed to pay child support. Subsequent to several hearings regarding many different issues, the mother sued the father to collect child support arrearage. At trial, the father argued that the mother should not be heard because of an earlier contempt charge. The father also argued that any arrearage should be set-off by his earlier judgment against the mother. The trial court found the father was in arrears in the amount of $21,753.00 and granted judgement to the mother. The father appeals this judgment. We affirm the trial court's decision and remand for a calculation of attorney's fees.

Taylor Brown vs. Jerry Nowlin - W2001-01455-COA-R3-CV View
Shelby County - This dispute addresses the applicability of the "made whole" doctrine to the subrogation rights of TennCare, Tennessee's medicaid waiver program, where the insured and the tortfeasor reached a settlement agreement without the participation or consent of TennCare. We hold that the made whole doctrine did apply to TennCare at the time this case was settled and the order entered. Affirmed.

Cases posted the week of 12/03/2001
State, ex rel Steven Wrzesniewski, vs. Lori Miller - E2001-00317-COA-R3-CV View
Blount County - Appellant was not ordered to pay child support when divorce was granted. Subsequently, retroactive child support was ordered. On appeal, we affirm.

Joseph Beaucamp v. Board of Paroles, et al. - M1998-00960-COA-R3-CV View
Davidson County - This appeal involves a dispute between a prisoner and the Tennessee Board of Paroles over the prisoner's right to sentence credits against his Tennessee conviction for time served in Arkansas penal institutions. After the Board declined to give him credit for this time, the prisoner filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County asserting that the Board had acted illegally by refusing to abide by the terms of his Arkansas sentence. The trial court dismissed the petition, and the prisoner has appealed. We affirm the dismissal of the petition because Tennessee is not bound by the terms of the criminal sentences imposed by the courts of Arkansas.

Yona Boyd, et al. v. Donald Bruce, M.D., et al. - M2000-03210-COA-R3-CV View
Davidson County - This is an appeal of the trial court's order denying plaintiff's relief pursuant to Tenn.R.Civ.P. 60.01. We affirm the trial court.

Yona Boyd, et al. v. Prime Focus, Inc., et al. - M2000-02105-COA-R3-CV View
Davidson County - This case began as a dispute between the plaintiffs and their employers. The defendant was awarded summary judgment, and plaintiffs were sanctioned by the court pursuant to Rule 11 of the Tennessee Rules of Civil Procedure. Plaintiffs now appeal this sanction. We affirm sanctions but modify the order.

Michael Fry v. Yuriko Fry - M2000-02969-COA-R3-CV View
Davidson County - Pursuant to the wife's motion under Rule 60, Tenn. R. Civ. P., the trial court amended the division of the husband's Navy pension contained in an agreed order of divorce. We reverse the trial court's judgment.

Robert Odom v. Mary Odom - M1999-02811-COA-R3-CV View
Dickson County - This appeal involves a bitter custody dispute over three children between the ages of nine and fourteen. During the divorce proceeding in the Chancery Court for Dickson County, the parties agreed that the mother would have custody of the children and also agreed on visitation arrangements that accommodated the mother's planned move to another state. Several months after the entry of the divorce decree, the father petitioned to change custody and to hold the mother in contempt for interfering with his relationship with the children. During the ensuing three years, the parties traded allegations of sexual and physical abuse of the children and other misconduct. Following a bench trial in December 1998, the trial court found that there had been a material change in the children's circumstances and granted the father custody of the children. On this appeal, the mother asserts that she was denied due process by the trial court's refusal to require the parties and their children to undergo a psychological examination and that the trial court unlawfully delegated its judicial authority to a psychologist who had been counseling the children. We have determined that the mother received an essentially fair hearing on this custody dispute and, therefore, affirm the trial court.

Thomas Smythe v. Phil Jones, et al . - M2000-02062-COA-R3-CV View
Williamson County - In this suit wherein the Plaintiff, Thomas a. Smythe, seeks damages against the Defendant, Donald Cowan, for willfully interfering with contractual relations between Mr. Smythe and Phil Jones, the Trial Court granted summary judgment because in his opinion the Statute of Limitations barred the claim asserted. We affirm.

Alexander C. Wells v. State - M2001-00144-COA-R3-CV View
Appellant, Dr. Alexander C. Wells, was a professor at Tennessee State University ("TSU"). He was relieved of his teaching duties in 1992 and was asked to remove his property from the office and laboratory space he occupied at TSU. He moved some of his belongings in 1995. His remaining belongings were boxed and moved to the campus warehouse in 1996 because the space had been reassigned. When he retrieved his belongings in 1997, he found several items missing. Appellant then brought a claim in the Tennessee Claims Commission asking the State of Tennessee to return his property or, in the alternative, give him monetary compensation for the lost items. The Commission held that TSU had not been negligent in the care, custody and control of appellant's property. Therefore, the State was not liable for the missing property. We affirm the decision of the Commission.

Linda Musick vs. Calvin Musick - E2001-01140-COA-R3-CV View
Sullivan County - The Trial Court granted parties a divorce, divided marital property, and awarded alimony. The parties have appealed on issues of evidence, division of marital property, the granting of alimony, and wife's attorney's fees. We affirm.

Alvin Bates vs. Dr. Joseph Metcalf - E2001-00358-COA-R3-CV View
Alvin Bates vs. Dr. Joseph Metcalf - E2001-00358-COA-R3-CV ( Dissent) View
Alvin Bates vs. Dr. Joseph Metcalf - E2001-00358-COA-R3-CV ( Concur) View
Anderson County - In this appeal from the Circuit Court for Anderson County, the Plaintiff/Appellant, Alvin Bates, contends that the Trial Court erred in failing to grant him a directed verdict in his cause of action against the Defendant/Appellee, Dr. Joseph Metcalf, IV, for medical malpractice and medical battery. Mr. Bates further contends that the Trial Court committed other errors with respect to the admission and exclusion of evidence and that there was no material evidence to support the jury's verdict in favor of Dr. Metcalf. We affirm the judgment of the Trial Court and we adjudge costs of appeal against Mr. Bates and his surety.

Linda Greene vs. Dr. Woody Stinson - E2001-00628-COA-R3-CV View
Linda Greene vs. Dr. Woody Stinson - E2001-00628-COA-R3-CV ( Dissent) View
Jefferson County - The plaintiff was under the care of the defendant dentist for the crowning of six teeth. As a part of this procedure, the defendant placed a "tray" filled with impression material in her mouth. The plaintiff claims that she swallowed some of the impression material which, according to her, later had to be surgically removed from her intestines. She sued the dentist, alleging that he violated the applicable standard of care in a number of ways. The court below granted the defendant summary judgment based, in part, on its finding that the defendant did not know the plaintiff had swallowed impression material. The trial court also held that the plaintiff's expert was not qualified to offer an opinion as to the applicable standard of care in Jefferson County. The plaintiff appeals, arguing that the defendant is not entitled to summary judgment because, she argues: 1) the record contains evidence that the defendant was aware that the plaintiff had swallowed the impression material; and 2) her expert was qualified to offer his opinion as to the standard of care. We affirm.

Cases posted the week of 11/26/2001
William R. Varner vs. City of KnoxviIle - E2001-00329-COA-R3-CV View
Knox County - By way of a complaint for writ of certiorari, the plaintiff challenges the decision of the Knoxville City Council ("the City Council") to deny his application to rezone his .5 acre lot from low density residential to commercial for the expansion of a used car lot located on adjacent property. Following a bench trial, the court below dismissed the complaint. We affirm.

Karmen Lane v. Richard Lane - M2000-01135-COA-R3-CV View
Davidson County - This appeal challenges an award of child support which did not include private school tuition of the minor daughter, a division of property that did not take into account alleged dissipation of assets by the husband, a child support award that did not deviate upwards from the Guidelines because of lack of visitation, and a finding of criminal contempt. Also at issue is whether the trial court erred in awarding alimony in futuro rather than rehabilitative alimony. We affirm the judgment of the trial court with respect to all issues except to hold that pursuant to the Tennessee Child Support Guidelines, private school tuition is an "extraordinary educational expense" which husband obligor must pay.

Raymond Mueller v. Denise Mueller - M2001-00098-COA-R3-CV View
Williamson County - In this appeal of a divorce decree, the husband argues that the rehabilitative alimony awarded to the wife is excessive, and that his visitation schedule unnecessarily limits the time he can spend with his son. We affirm the award of rehabilitative alimony, but reduce its duration to three years. We also remand this case to the trial court for reconsideration of the visitation schedule.

Old Republic Surety Co. v. Morris Eshaghpour - M1999-01918-COA-R3-CV View
Davidson County - The defendant purchased a building permit bond from the plaintiff surety company and executed an indemnity agreement to hold the surety harmless against all loss, liability and expenses the company might sustain on the bond. A claim was made against the bond regarding a home built by the defendant. The surety company notified the defendant, investigated the claim, and eventually settled with the claimant. In this lawsuit to collect under the indemnity agreement, the trial court granted summary judgment to the surety. The defendant argues that summary judgment was inappropriate because the motion was not properly supported according to the Rules of Civil Procedure and, alternatively, the issue of whether the surety acted reasonably and in good faith in settling the claim precludes summary judgment. We disagree and affirm the summary judgment on the issue of liability, but remand for proof on total damages.

Thomas White v. Kathy White - M2000-02674-COA-R3-CV View
Sumner County - This appeal arises from the Appellant's filing of a Petition to Modify the Final Decree of Divorce in the Circuit Court of Sumner County. The Appellant requested a downward deviation in child support and a reduction in alimony. The Appellant also requested that he no longer be required to reimburse the Appellee for health insurance coverage. The Appellee filed a Counter-Petition requesting an upward deviation in child support. Following a trial on the Petition and Counter-Petition, the trial court entered an order reducing the Appellant's child support obligation to $1,000.00 per month. The trial court declined to modify the award of rehabilitative alimony and health insurance coverage. The Appellant appeals the decision of the Circuit Court of Sumner County setting child support at $1,000.00 per month and refusing to modify the award of rehabilitative alimony and health insurance coverage. For the reasons stated herein, we affirm in part and reverse in part the trial court's decision.

George Tipton vs. Axis Fabrication & Machine Co. - E2001-00258-COA-R3-CV View
George Tipton vs. Axis Fabrication & Machine Co. - E2001-00258-COA-R3-CV ( Concur/Dissent) View
Blount County - This is a personal injury case. George Michael Tipton and his wife, Kristie Tipton, filed suit seeking damages flowing from injuries that Tipton sustained when he attempted to catch a piece of metal coming from a cutting machine owned by the defendant Axis Fabrication & Machine Company ("Axis") and being operated at the time by an Axis' employee, the defendant Jeff Thomas. Following the close of the plaintiffs' proof, the defendants moved for a directed verdict, which the trial court granted. The trial court based its decision on its finding that the plaintiffs had failed to prove that the defendants did not act with reasonable care. The plaintiffs appeal. We vacate the judgment of the trial court and remand for further proceedings.

State ex rel Mickey Phillips vs. Gwen Knox - E2000-02988-COA-R3-JV View
Anderson County - The Trial Court found Gwen Knox ("Knox") to be in civil contempt for failure to pay child support. This is the second appeal in this case. This Court, in State ex rel. Phillips v. Knox, No. E1999-00205-COA-R3-CV, 2000 WL 217936, at * 2 (Tenn. Ct. App. Feb. 25, 2000), vacated and remanded the Trial Court's dismissal of Knox's Second Petition to Vacate and Modify the Trial Court's order finding that Knox was in contempt for failure to pay child support. On remand, the Trial Court denied Knox's petition, again holding, among other things, Knox in civil contempt but reducing Knox's incarceration time for contempt from thirty days to ten days and her purge amount from $1,000 to $100. Knox appeals. We reverse, in part, and affirm, in part.

Mark Wishon, et ux vs. Ear, Nose, & Throat Associates, PC., et al - E2001-01031-COA-R3-CV View
Washington County - Plaintiffs appeal from summary judgments in medical malpractice case granted to defendants, and from the Trial Court's refusal to grant them a voluntary dismissal during the pendency of the summary judgment motions. We affirm.

Barbara Gaskins vs. Roger Gaskins - E2000-02915-COA-R3-CV View
Greene County - This appeal from the Circuit Court of Greene County questions whether the Trial Court erred in awarding Ms. Gaskins alimony for a seven year period. Mr. Gaskins appeals the decision of the Circuit Court of Greene County. We affirm the decision of the Trial Court as modified and remand for further proceedings consistent with this opinion. We adjudge costs of the appeal against the Appellant, Roger Arthur Gaskins, and his surety.

Frances Powers vs. Mark Terry, et al - E2001-00108-COA-R3-CV View
Roane County - This litigation focuses on a dispute between the former wife of the late James Spencer Terry – a pharmacist – and the parties' children. Following Mr. Terry's death, his former spouse sued the children, claiming that she was the beneficial owner of Union Drug Co., a drugstore in Harriman. She based her claim on the language of the parties' marital dissolution agreement ("MDA"). Following a bench trial, the court below found that, prior to his death, Mr. Terry had sold the drugstore and that the children, as his heirs at law, were entitled to the proceeds from the sale. The trial court also found the plaintiff did not have a legal interest in the drugstore's bank account and certificates of deposit. We affirm.

Harold Jackson vs. Jim Rout - W2000-02974-COA-R3-CV S. View
Shelby County - Citizen filed a petition against county mayor, county sheriff, and county commissioner of public records alleging that he was not furnished the records that he had requested. The trial court sustained the respondent's motion to dismiss for failure to state a claim upon which relief can be granted. Petitioner appeals. We reverse.

Bowman Reid vs. Express Logistics - W2001-00236-COA-R3-CV View
Shelby County - This appeal involves a dispute over post-employment commissions. The defendant orally agreed to pay the plaintiff a commission of 25% on revenues the defendant received due to the plaintiff's work. When the plaintiff resigned from the defendant's company, the defendant refused to continue to pay the plaintiff those commissions. The trial court determined that the parties were without an oral or written contract regarding post-employment commissions and granted the defendant's motion for summary judgment. The plaintiff appeals on the grounds that Tennessee law requires commissions to continue post-employment, that the parties had a written contract regarding post–employment commissions, and that the parties had an oral contract regarding post-employment commissions. For the reasons below, we affirm in part, reverse in part, and remand the case to the trial court for further proceedings in accordance with this opinion.

Joan Schmitt vs. James Smith - W2000-01726-COA-R3-CV View
Shelby County - This dispute arises from an action to enforce an attorney's lien in a divorce action. Appellant contends that a separate suit is required to enforce the lien, and, further, that the lien was lost through the attorney's failure to have it noted in the final judgment. Appellant also submits that the trial court erred in issuing injunctive relief without notice, hearing or bond against proceeds of marital property against which the lien was filed. We hold that the attorney's lien was lost due to failure to note it in the final judgment or by a timely Rule 59.04 motion to alter or amend the judgment. We further hold that the Rule 65.07 exception to the requirements of injunctive relief in some domestic relations cases does not apply to the case at bar, where, although the original suit was a divorce action, the issue presented for resolution is essentially based on contract.

Terminix International Co. v. Department of Labor - M2001-00174-COA-R3-CV View
Davidson County - This matter is before the Court upon a petition seeking judicial review of our administrative order. The Petition was initiated in the Chancery Court of Davidson County, Tennessee, wherein the appellants challenged the jurisdiction of the Tennessee Department of Labor, Division of Occupational Safety and Health ("TOSHA") to conduct safety inspections concerning pesticide applicators (i.e., persons who apply pesticides) and to enforce such regulations. The Chancery Court ruled that the Tennessee Occupational Safety and Health Review Commission (TOSHA) has subject matter jurisdiction to conduct inspections and issue citations concerning the safety of pesticide applicators in the work place. We affirm.

Jackson-Madison County General Hospital District v. Health Facilities Commission - M1999-02804-COA-R3-CV View
Davidson County - This appeal involves a dispute between two hospitals regarding one hospital's desire to expand its intensive care and open-heart surgery services. After Methodist Healthcare-Jackson Hospital applied to the Tennessee Health Facilities Commission for a certificate of need, Jackson-Madison County General Hospital District objected on the ground that the proposed services would unnecessarily duplicate services it was already providing. Even though the Commission denied the application, the Commission's staff issued the certificate of need after the Attorney General and Reporter opined that the Commission's vote on reconsideration was inconsistent with the Commission's enabling statute. Rather than pursuing a contested case hearing before the Commission, Jackson-Madison County filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County asserting that the Commission's vote to deny the certificate of need was proper and that one Commission member who voted to approve the certificate should have been disqualified because of a financial conflict of interest. The trial court granted the writ of certiorari but, following a hearing, dismissed the writ because Jackson-Madison County had not exhausted its administrative remedies. Jackson-Madison County appealed to this court. While this appeal was pending, Jackson-Madison County requested and received a contested case hearing before an administrative law judge sitting in place of the Commission. After the administrative law judge determined that the Commission's vote to deny Methodist Healthcare's application for a certificate of need was proper and that one of the Commission members who voted to grant the certificate of need should have been disqualified, Jackson-Madison County moved to dismiss its appeal. Methodist Healthcare opposed dismissing the appeal. We have determined that the trial court properly dismissed Jackson-Madison County's petition for writ of certiorari and that this appeal should be dismissed.

Trinity Industries, Inc. v. McKinnon Bridge Co., Inc. - M2000-00510-COA-R3-CV View
Davidson County - An uncompleted highway bridge over the Tennessee River collapsed, triggering a lengthy and convoluted course of litigation between the parties involved in its construction. Litigation began when the company that fabricated the bridge's structural steel components sued the general contractor for non-payment on the contract. The general contractor filed a counter-claim which alleged that the fabricator had breached the contract by producing defective steel components that caused the collapse. The contractor named some of its other subcontractors as third party defendants, claiming that they also bore some responsibility for the collapse of the bridge. In a series of orders, the trial court dismissed the counterclaim and third party claims, and declared that its judgments were final for purposes of Tenn. R. Civ. P. Rule 54.02. After this court heard oral argument on the first of the Rule 54.02 appeals, but before it could issue an opinion, the trial court conducted a hearing on the merits of the steel fabricator's claim, and rendered a judgment in its favor. We affirm the judgment for the price of the steel and the judgment for the fabricator on the general contractor's counterclaim. We reverse the judgment dismissing the third party claims.

Stacy Harris v. Thomas Hall - M2000-00784-COA-R3-CV View
Williamson County - This case was transferred to a judge in another county for "binding mediation," and the mediating judge entered an order dismissing the lawsuit and enjoining plaintiff from certain actions, including further litigation. The original trial court later denied the plaintiff's Tenn. R. Civ. P. 60.02 motion for relief from orders, and the plaintiff appealed. We find the trial court had no authority to order the case to any alternative dispute resolution procedure other than one established in Tenn. R. Sup. Ct. 31, that the mediating judge had no authority to dispose of the case and, consequently, all orders entered by that judge are void. We reverse the trial court's denial of Rule 60.02 relief, vacate orders entered in the court of the mediating judge, and remand for further proceedings.

Joy Porter vs. Money Tree Finance Corp. - E2001-01142-COA-R3-CV View
Washington County - The plaintiff, Joy McVey Porter, entered into a loan agreement – referred to as a title pledge agreement – with the defendant, Money Tree Finance Corporation II, LLC d/b/a Cash Express, II ("Money Tree"). The agreement contains an arbitration provision wherein the parties agree to arbitrate all disputes "arising out of" the agreement. Pursuant to the agreement, Money Tree loaned Porter $500 in exchange for the title to her automobile. When Porter defaulted, Money Tree sold her vehicle and attempted to collect the loan deficiency remaining after the sale. Money Tree's efforts prompted Porter to file this suit alleging that Money Tree's collection efforts violated the Tennessee Consumer Protection Act, T.C.A. § 47-18-101, et seq. Porter also alleges that Money Tree violated the Federal Truth in Lending Act, 15 U.S.C. § 1601, et seq., by failing to provide an accurate statement of all financing charges in the body of the agreement. Money Tree moved the court to require arbitration. The trial court held that Porter was not required to submit her claims to arbitration because, according to the lower court, those claims do not "aris[e] out of" the agreement. Money Tree appeals pursuant to T.C.A. § 29-5-319(a)(1). We reverse.

Roberts vs. Everhart Steel Const. Co. Inc. - E2001-00187-COA-R3-CV View
Hamilton County - In this action for damages for personal injuries allegedly caused by defendant's negligence, a jury awarded damages. On appeal, we conclusively presume the Judgment is correct, because we cannot review all of the evidence heard by the jury.

Jimmy Wilson v. State - M2000-02934-COA-R3-CV View
Davidson County - By opinion of this Court dated August 27, 1999, dismissal by the trial court of Plaintiff's Petition for Declaratory Judgment or Common Law Writ of Certiorari complaining about computation of his sentence reduction credits was affirmed with costs assessed against Petitioner. He then attempted to have his inmate trust account shielded from collection of court costs by claiming exceptions under Tennessee Code Annotated section 26-2-101, et seq. The trial court denied his application and he filed timely appeal. We affirm the trial judge.

Kenneth Varney v. Heather Roemer - M2000-03234-COA-R3-CV View
Sumner County - This is a post-divorce custody case in which Father alleged a change of circumstances due to step-father disciplining the two minor children in an inappropriate manner, Mother not being able to provide a stable and consistent home and school environment, the children experiencing emotional problems while in Mother's home, and Mother voluntarily relinquishing custody. The trial court found that Father failed to demonstrate a change of circumstances warranting change of custody. Although the two children had been living with Father, the court refused to change the initial award of custody to Mother. We find that the evidence preponderates against the trial court's determination regarding changes in circumstances and that, by focusing on one alleged incident of inappropriate discipline, the court failed to consider other circumstances relevant to the inquiry.

James Saylor v. Dept. of Correction - M2000-02118-COA-R3-CV View
Davidson County - Appellant, a prison inmate, filed an action challenging the Department of Correction's calculation of his sentence. The action was dismissed in the trial court and costs were assessed against Appellant. He petitioned the trial court to rule that he was entitled to claim the personal property exemption provided for in Tenn. Code Ann. § 26-2-103 (2000). The trial court denied this relief and this appeal resulted. We affirm the court below.

Johnetta Nelson v. Innovative Recovery Svcs. Inc. - M2000-03109-COA-R3-CV View
Davidson County - This is a declaratory judgment action by Ruby Nelson against Innovative Recovery Services, Inc. ("IRSI"), subrogation recovery agent for Tennessee Coordinated Care Network, d/b/a Access ..MedPLUS ("TCCN"), a health maintenance organization under TennCare. TCCN paid $6,266.75 in medical expenses for Ruby Nelson and, under TennCare statutes, had a subrogation interest in this amount as to any third party recovery by Ms. Nelson. The Complaint asserts that TCCN is liable to attorneys for Ruby Nelson for attorney's fees in the amount of one-third of the subrogation interest. The Chancellor held TCCN not liable for attorney's fees to the attorneys representing Ruby Nelson, and we affirm the judgment of the Chancellor.

Jon Hall v. Bill McLesky, et al. - M2000-01857-COA-R3-CV View
Davidson County - A death row inmate filed a Petition for Declaratory Judgment, claiming that employees of the Department of Correction had caused his attorney's phone number to be removed from an approved calling list, and had refused to restore the number to the list in a timely way. The inmate named seven employees of the Department and a private telephone company as defendants, and demanded monetary damages. The trial court dismissed the action, because the petitioner failed to comply with the mandatory requirements of the Uniform Administrative Procedures Act. Because we do not believe the petitioner was entitled to relief under any of the theories he advanced, we affirm the trial court.

Charles Bobo v. Dept. of Corrections - M2000-00517-COA-R3-CV View
Davidson County - Appellant, a prison inmate, filed, in the Chancery Court of Davidson County, a Petition for Writ of Certiorari questioning disciplinary actions against him by the Department of Corrections. The petition was dismissed by the Chancellor with costs assessed against Appellant. Appellant then sought exemption of his inmate trust account from execution for costs asserting that Tennessee Code Annotated Section 26-2-103 rendered his trust account and personal property to a value of $4,000 exempt from execution for court costs. The Chancellor held Tennessee Code Annotated Section 26-2-103 to be inapplicable, and we affirm the Chancellor.

Cases posted the week of 11/19/2001
Tex Helton, et al vs. Colonial Loan Assoc., Inc. et al - E2001-00060-COA-R3-CV View
Hawkins County - Tex Helton and his wife sue Colonial Loan Association, Inc., and Lakeview Motors, Inc., seeking damages in connection with Colonial Loan's repossession of an automobile sold to them by Lakeview Motors. The Trial Court granted a summary judgment as to Colonial Loan. The claim as to Lakeview Motors has been concluded and this appeal only concerns the granting of a summary judgment in favor of Colonial Loan. We vacate the order granting summary judgment and remand.

Anthony McNabb, et ux vs. Highways, Inc., et al - E2001-00867-COA-R3-CV View
Polk County - Plaintiffs' action for damages for personal injury allegedly due to defendant's negligence, was dismissed by the Trial Judge for failure of plaintiffs to join all alleged tort feasors in one action. On appeal, we vacate and remand.

Cases posted the week of 11/12/2001
Phillip Ledford vs. Bradley Memorial Hospital - E2001-00291-COA-R3-CV View
Bradley County - The plaintiffs, Phillip A. Ledford ("Ledford") and his wife, Elizabeth Ledford, filed suit against the defendants, Daniel V. Johnson, M.D., Bradley Memorial Hospital ("the Hospital"), and Southeast Tennessee Orthopedics, Inc. ("Southeast"), alleging medical malpractice arising out of surgery performed by Dr. Johnson on Ledford's broken arm. The trial court granted the defendants summary judgment. We affirm.

In Re: Estate of Lois Chandler - E2000-03055-COA-R3-CV View
Knox County - Buster Chandler, Jr. ("Chandler") was appointed administrator of the estate of his mother, Lois Chandler, who died intestate in 1998. Chandler is incarcerated in Kentucky for a murder he committed in 1990. Chandler requested the Chancery Court arrange for his transportation from prison in Kentucky to Knoxville, Tennessee, so he could be present for the hearing regarding the closing of his mother's estate and so he could meet with the Knox County Attorney General regarding his murder conviction in Kentucky. Chandler argued that the Attorney General wanted to try him for the murder in Knoxville and would assist in obtaining a pardon from the governor of Kentucky. The Chancery Court denied his request, closed his mother's estate, and assessed court costs against Chandler as administrator. Chandler appeals. We affirm the Chancery Court.

Thelia Barrett v. White House Utility District - M2000-02426-COA-R3-CV View
Wilson County - This appeal challenges an award of damages made to the plaintiff by the trial judge after a bench trial. Defendant claims the trial judge's finding of causation is contrary to the weight of the evidence, that the damages are excessive and that it was error to award discretionary costs. Plaintiff claims that the award was inadequate. We affirm the trial court in all respects.

State v. Mark Doolen - M2000-01953-COA-R3-CD View
Dickson County - A thirteen-year-old boy was convicted of vandalism in juvenile court, and was ordered to pay restitution of over $6,600. He claimed that the amount of restitution was excessive, and appealed to the circuit court, which affirmed the juvenile court's determination. We affirm the order of restitution, but modify the amount, for the reasons set out below.

Ben Hambrick v. Donal Campbell, Commissioner - M2000-02907-COA-R3-CV View
Davidson County - A prisoner filed a petition for writ of certiorari more than sixty days after the entry of the order he was appealing from, in violation of Tenn. Code. Ann. § 27-9-102. The trial court dismissed the petition because of lack of jurisdiction. We affirm the trial court.

Dwayne Hawkins v. Patrick Hart - M2000-02449-COA-R3-CV View
Davidson County - This matter began when Plaintiffs signed an agreement to purchase an automobile dealership from Defendant, Patrick Hart. Defendant Hart refused to honor this agreement and later agreed to sell the dealership to Defendant, Nelson Bowers. The current case flows from these breach of contract and inducement of breach of contract actions previously dismissed by the trial court and appealed to this Court. We are now asked to determine whether the trial court correctly applied the Court of Appeals decision in this matter. Plaintiffs appeal two orders issued by the trial court on remand: (1) an order dismissing claims for conversion and interference with business relations against the Bowers Defendants, reinstating the discretionary costs previously vacated by this Court in favor of the Bowers Defendants, and denying Plaintiffs' motion to amend to add additional claims and parties; and (2) a second order dismissing Plaintiffs' separate action against European Motors and Sonic Automotive, parties whom Plaintiffs had previously tried to join in the original action. We find that the trial court correctly interpreted and applied the Court of Appeals decision and affirm both orders in their entirety.

Ray White v. Regions Financial Corp. - M2000-02957-COA-R3-CV View
Davidson County - In this appeal from the Circuit Court for Davidson County, the Plaintiff/Appellant, F. Ray White, contends that the Trial Court erred in granting the Defendant/Appellee, Regions Financial Corporation, a summary judgment against him with regard to his cause of action for age discrimination under the Tennessee Human Rights Act. We affirm the judgment of the Trial Court and we adjudge costs of appeal against Mr. White and his surety.

Shirley Pegues vs. Lester Graves - W2000-02831-COA-R3-CV View
Shelby County - Plaintiffs, husband and wife, sued physician when wife became pregnant after physician had performed a pregnancy avoidance procedure and allegedly guaranteed the results thereof. Defendant moved for a directed verdict which the trial court granted, but plaintiffs contend that it was granted after plaintiffs took a nonsuit. Plaintiffs appeal. We reverse.

Patrick Reinshagen vs. PHP Companies, Inc. - E2001-00025-COA-R3-CV View
Hamilton County - In this action for breach of employment contract and defamation, the Trial Court granted summary judgment to defendants. Plaintiff appealed. We affirm.

Roy Shanks vs. Hazel Albert - E2001-00066-COA-R3-CV View
Hamblen County - Roy Michael Shanks appeals dismissal of his suit seeking to overturn a determination of the Board of Review that he was not entitled to unemployment compensation because of misconduct. We concur in the determination of the Chancellor and affirm.

James Jones vs. Pierce Garrett, a/k/a Perry Garrett - E2000-00196-COA-R3-CV View
Hamblen County - This is a suit wherein James Lee Jones, III, and his wife seek a determination that Pierce Brandon Garrett, a/k/a Perry Garrett, has abandoned his son so that they may adopt him. The Trial Judge found by clear and convincing evidence that abandonment had occurred, but did not make any finding as to the best interest of the child. We affirm the finding as to abandonment and remand the case for a determination as to best interest.

Robert McNabb vs. Steve Hatfield - E2000-02511-COA-R3-CV View
Hamilton County - Robert Lee McNabb and Roberta McNabb Poteet ("Plaintiffs") brought a partition action against Steve Hatfield and Almeda Hatfield ("Defendants") and Mary R. Edwards, concerning property located in Chattanooga, Tennessee ("Property"). The Property originally was owned by the parties' grandparents. During the pendency of this matter at the trial level, Plaintiffs voluntarily dismissed Mary R. Edwards from this suit. Defendants, who had possessed the Property and paid taxes on it since 1977, filed a counterclaim in which they requested the Trial Court quiet title in their favor. Defendants filed a Motion for Summary Judgment, arguing they were the true owners of the Property under the theories of adverse possession and title by prescription. Defendants also argued in their motion that they were entitled to the statutory presumption under Tenn. Code Ann. § 28-2-109 that they were the prima facie owners of the Property because they paid property taxes for more than twenty years, and that Plaintiffs' claim of ownership was barred by Tenn. Code Ann. § 28-2-110 due to Plaintiffs' failure to pay property taxes for more than twenty years. The Trial Court partially granted Defendants' motion, holding that Defendants were entitled to judgment as a matter of law as to Plaintiffs. The Trial Court held that Mary R. Edwards had a claim of ownership to the Property but was no longer a party to the partition action. The Trial Court concluded that the only effect of its judgment was to hold that Plaintiffs have no legal interest in the Property. Plaintiffs appeal. We reverse, in part, and affirm, in part.

Cases posted the week of 11/05/2001
Cedric Franklin vs. Dept. of Correction - M2001-00279-COA-R3-CV View
Cedric Franklin vs. Dept. of Correction - M2001-00279-COA-R3-CV ( Concur) View
Davidson County - A prison disciplinary board found a minimum security prisoner to be guilty of violation of state law. The prisoner filed a Petition for Writ of Certiorari, claiming that the board had denied him due process. The trial court dismissed the petition. We affirm.

Charles Holcomb vs. Sverdrup Technology, Inc. - M2000-00536-COA-R3-CV View
Coffee County - This case involves an age discrimination claim under the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101 et seq. Plaintiff received oral and written notice of his termination on August 29, 1995, and a certified letter regarding benefits and confirming the termination on September 5, 1995. The termination was to be effective as of September 29, 1995. Two new employees were hired on October 1, 1995, and their hirings caused Plaintiff to believe he had been terminated because of his age. Plaintiff did not file suit until September 23, 1996, and the case was dismissed based on failure to file within the one year statute of limitations. We affirm on the ground that Plaintiff was given unequivocal notice on August 29 and, therefore, failed to meet the statute of limitations.

David Palmer v. Dept. of Correction - M2000-02351-COA-R3-CV View
Davidson County - Appellant, prison inmate, filed a "Petition for Judicial Review and/or Petition for a Declaratory Judgment and/or Petition for Common Law Writ of Certiorari," in the chancery court contesting the denial of relief in his petition for a declaratory order with the Tennessee Department of Correction. The petition for declaratory order challenged his imposed sentence by virtue of subsequent legislation. The trial court dismissed the petition for failure to state a claim upon which relief can be granted and assessed costs against the appellant. This Court affirmed on appeal and assessed the costs of appeal to appellant. Appellant then filed in the trial court a "Motion to Waive Court Costs, Motion to Assert Exemption Rights Under Appellate Precedent," pursuant to T.C.A. § 26-2-101 et seq. The trial court dismissed the petition and appellant has appealed. We affirm.

Billy Sadler vs. Bd. of Probation and Parole - M2001-02341-COA-R3-CV View
Davidson County - A prisoner who was denied parole filed a Petition for Writ of Certiorari, challenging, on constitutional grounds, the procedures followed by the Parole Board. The trial court dismissed the petition. We affirm.

Kelly Seibers vs. Douglas Clouse - M2000-03218-COA-R3-JV View
White County - This appeal challenges a custody decision. The juvenile court awarded the parents joint custody with the father to have primary physical custody of the child. Appellant/mother challenges the juvenile court's comparative fitness analysis and the award of primary physical custody of the child to the father. As discussed below, we affirm the judgment of the juvenile court granting the father primary physical custody. The juvenile court was correct that it is in the best interest of the child to remain primarily with the father as he provides the better living environment.

Dept. of Children's Svcs. vs. Jennifer Whited, et al - M2000-03213-COA-R3-JV View
Dickson County - This appeal involves the termination of parental rights. The juvenile court terminated the parental rights of both parents. Appellant/mother challenges the juvenile court's termination of her rights contending the juvenile court erred by allowing in certain documentary evidence, that the evidence did not clearly and convincingly establish that termination was in the child's best interest, the court failed to state affirmatively that termination was in the best interest of the child, and the petition for termination was defective as it did not explicitly state the statutorily mandated language of Tenn. Code Ann. § 36-1-113(d)(3)(C) (Supp. 2000). As discussed below, we affirm the judgment of the juvenile court.

Bill Campbell, Executor, vs. Blount Memorial Hospital - E2001-00717-COA-R3-CV View
Blount County - Patient sustained injuries in defendant's emergency room. The Trial Court granted a Tenn. R. Civ. P. Rule 41.02(2) Motion to defendant. Plaintiff appealed. We affirm.

Lindsay Taylor vs. Al Beard, et al - W2001-00347-COA-R3-CV View
Shelby County - This appeal involves a grant of summary judgment, which dismissed loss of parental consortium claims brought by the children of a parent injured in an automobile accident. The children seek review of existing Tennessee precedent that fails to recognize loss of parental consortium causes of action resulting from the personal injury of a parent. For the following reasons, we affirm the decision of the trial court and decline to create a new cause of action.

Jack Coleman vs. City of Memphis - W2000-02865-COA-R3-CV View
Shelby County - This appeal arises out of a dispute over an annexation ordinance passed by the City of Memphis. The trial court granted summary judgment to Defendants due to its finding that Plaintiffs did not properly file a complaint contesting the annexation ordinance. For the following reasons, we affirm.

Arthur Anderson vs. Edwin Roberson - W2000-01879-COA-R3-CV View
Shelby County - This appeal presents the sole issue of in personam jurisdiction of a nonresident corporation and the nonresident individual owning a majority interest in the corporation by virtue of their activities, as described in the Tennessee Long Arm statute, or alternatively, as co-conspirators with defendants, subject to the jurisdiction of the court.

Lisa Heath vs. Memphis Radiology - W2000-02770-COA-R3-CV View
Shelby County - This is a medical malpractice case. Plaintiff sued physician, radiological group and hospital, alleging failure to discover and diagnose her malady resulting in permanent physical impairment. The trial court entered judgment for the defendants on a jury verdict, and plaintiff appealed asserting evidentiary errors and the failure of the trial judge to perform his duty as the thirteenth juror. We affirm

James Moody vs. William Lea - W2000-02916-COA-R3-CV View
Dyer County - This appeal involves a dispute over an oral contract to lease farming equipment. The agreement provided that the defendant could use the plaintiff's farming equipment for an amount to be determined by a formula. The defendant began farming his land, intending to plant cotton, when the Mississippi River rose and the backwater covered his property. Because the backwater remained on the land for such a long period of time, the defendant could no longer grow cotton; he had to grow soybeans instead. Subsequently, the defendant refused to pay the plaintiff the amount the plaintiff claimed under the contract, and the plaintiff sued. The trial court held that the contract was enforceable and that the defendant's performance was not excused by the doctrine of frustration of commercial purpose. The defendant appeals the ruling of the trial court. For the reasons below, we affirm in part, reverse in part, and remand the case to the trial court to modify the judgment.

William Eaton vs. Elnora Eaton - W2001-00576-COA-R3-CV View
Tipton County - This case involves the sale of the plaintiff's land to the defendant. The plaintiff's attorney in fact, pursuant to a valid durable power of attorney, sold the land to the defendant. The trial court held that the transaction between the attorney in fact and the defendant was fair, valid and binding as to the plaintiff. The plaintiff, by next friend, appeals the ruling of the trial court. We affirm the judgment of the trial court.

Eddie McPeak vs. Mufflers Inc. - W2001-00471-COA-R3-CV View
Madison County - This appeal concerns the proper amount of damages due to the Plaintiff after the Defendant damaged the engine in the Plaintiff's 1970 Dodge Challenger. Three witnesses provided testimony on the proper amount of damages that should be awarded to the Plaintiff. The trial court utilized the testimony of the Defendant's expert witness in assessing damages. The Plaintiff appeals the trial court's judgment, asserting that the Defendant's witness relied on untrustworthy information in forming his expert opinion. For the reasons set forth below, we affirm the judgment of the trial court.

Harold Lee Jackson vs. Jim Rout - W2000-02974-COA-R3-CV (Order withdrawing opinion) View

Ruby Foshie vs. Warren Foshie In Re: Willis Foshie - E2000-02837-COA-R3-CV View
Hamblen County - This appeal challenges the Trial Court's conclusion that Willis Foshie's wife, Ruby Foshie, and his daughter, Darlene Holbert, ("Petitioners") should be appointed co-conservators over the estate and person of Willis Foshie, and the Trial Court's conclusion that Willis Foshie's gift of a truck to his grandson, Warren Foshie, was the result of undue influence. We were provided neither a trial transcript nor a complete and accurate statement of the evidence which complies with Tenn. R. App. P. 24(c). We affirm.

Donald Miller, et al vs. Choo Choo Partners - E2001-00007-COA-R3-CV View
Donald Miller, et al vs. Choo Choo Partners - E2001-00007-COA-R3-CV ( Dissent) View
Hamilton County - Donald Miller and his wife, Terry Miller, filed suit seeking damages associated with injuries that Mr. Miller allegedly sustained when he fell while getting into a bathtub enclosure at a hotel owned by the defendant Choo Choo Partners, L.P. The jury returned a verdict for the plaintiffs. As remitted by the trial court, Miller was awarded $1,000,000 and his wife was awarded consortium damages of $175,000. The defendant appeals, arguing, inter alia, that it was entitled to a directed verdict because the plaintiffs failed to establish that the defendant's negligence caused Miller's back and neck injuries. We affirm.

Vince Mullins vs. Theresa Mullins - E2001-00912-COA-R3-CV View
Greene County - The Trial Court granted parties a divorce, awarded custody of minor child to mother, and ordered rehabilitative alimony and attorney's fees to mother. Husband appealed. We affirm.

Sue Plemmons vs. Mike Graves - E2001-00733-COA-R3-CV View
Monroe County - This case involves whether Mike and Bonnie Graves d/b/a/ GRESCO ("Defendants" or "Lessees") breached a commercial lease with Sue S. Plemmons ("Plaintiff" or "Lessor"). The lease was entered into in 1983 and permitted the installation of a billboard on Plaintiff's property. Plaintiff claims Lessees breached the lease when they paid the rent for 1999 late and when they refused to pay an increase from $250 to $1,500 in the annual rent. The Trial Court held that Lessees did not breach the lease and dismissed the case. We affirm.

Cases posted the week of 10/29/2001
Jenny C. Walker vs. James M. Walker - M2001-00087-COA-R3-CV View
Robertson County - After the parties separated, the husband borrowed a substantial amount of money to complete the renovation of marital property and to pay household expenses. The trial court divided the marital property pursuant to divorce, classifying the husband's post-separation loans as marital debt. The wife argues on appeal that the trial court erred in its classification and division of the post-separation debts. We affirm the trial court.

Ronald Strickland vs. Tami M. Franklin - M2001-00331-COA-R3-CV View
Houston County - This appeal involves the custody of a child born out of wedlock to a mother who was at all times married to another man. The trial court awarded the mother custody. The father of the child now appeals. We have determined that the trial judge did not err in failing to recuse himself and properly awarded custody to the mother. Accordingly, we affirm.

Ricky Riddle, et al. vs. Heartland Nursery Company - M2000-02190-COA-R3-CV View
Franklin County - In this action to collect the purchase price for the sale of nursery stock, the buyer alleged that the goods did not conform to the contract and that the number of units delivered was significantly short of the number specified in the invoice. The buyer also filed a counterclaim for the damage to its professional reputation resulting from the seller's breach. The Circuit Court of Franklin County resolved all the issues in favor of the seller and rendered judgment for the balance of the purchase price. Because we find that the buyer had accepted the goods and failed to carry his burden of proving that they were defective, we affirm.

Arthur L. Rawlings, Jr. vs. The John Hancock Mutual Life Ins. Co., et al. M2000-03191-COA-R3-CV View
Davidson County - This appeal involves a dispute between a decedent's estranged husband and brother over the proceeds of a $12,000 life insurance policy. When he discovered that his deceased wife had removed him as the beneficiary of her policy, the husband filed suit in the Circuit Court for Davidson County seeking to invalidate the change of beneficiary form. Following a bench trial, the trial court found that the decedent lacked the capacity to change the beneficiary on her life insurance policy and that the decedent's brother had procured the change through undue influence. Accordingly, the trial court awarded the decedent's husband the proceeds of her life insurance policy as well as $350 that his brother-in-law had removed from a joint account using a power of attorney he obtained from the decedent. We have determined that the evidence does not support the trial court's conclusion that the decedent lacked capacity to change the beneficiary of her life insurance policy and that the decedent's husband never asserted an undue influence claim in the trial court. Accordingly, we reverse the judgment and remand the case with directions to award the proceeds of the life insurance policy to the decedent's brother.

Yona Boyd, et al. vs. Donald Bruce, M.D., et al. - M2000-03211-COA-R3-CV View
Davidson County - This appeal arises from the third effort of the plaintiffs to obtain compensation and other employment benefits from their former employer. The same claims were first filed in Chancery Court against the doctor and his management company, and the complaint was dismissed for failure to state a claim upon which relief can be granted and failure to join an indispensable party. Thereafter, the plaintiffs filed suit in Chancery Court against the company which supplied the employee handbook and other services to the doctor. That case was dismissed on a motion for summary judgment. The plaintiffs then again filed suit against the doctor-employer in Circuit Court. The Circuit Court dismissed the case by converting the doctor-employer's motion for Rule 11 sanctions into a motion to dismiss on the basis of res judicata. The plaintiffs now appeal that dismissal to this court. We affirm the trial court's dismissal.

El-Shabazz Ahkeen vs. Donal Campbell, et al. - M2000-02411-COA-R3-CV View
Davidson County - A state prisoner appeals the trial court's dismissal of his petition for writ of certiorari seeking judicial review of sanctions imposed in prison disciplinary proceedings. He asserts the proceedings denied him due process and that the board's failure to follow Department of Correction policies and procedures constituted an illegality under state law grounds for common law writ of certiorari. We affirm the trial court and hold (1) the sanctions imposed did not trigger due process protections, (2) the alleged failure to follow specific procedures did not amount to failure to follow the essential requirements of the law in the context of prison disciplinary proceedings, and (3) there was evidence to support the board's finding.

Roger E. White vs. K. David Myers, et a l - E1999-02642-COA-R3-CV View
Union County - The Plaintiff, Roger E. White, filed suit seeking damages, attorney's fees, and court costs for multiple violations of the Fair Debt Collection Practices Act against two attorneys. Defendant K. David Myers was voluntarily dismissed with prejudice from the suit. Union County Chancery Court granted a motion for summary judgment on behalf of Defendant-Appellee, Roger D. Hyman. The court also granted Mr. Hyman's motion for sanctions against Mr. White and his attorney, J. Philip Harber. Mr. White did not appeal. Mr. Harber filed a notice of appeal as to the award of sanctions and also the amount of the sanctions. We affirm the decision of the trial court.

Marta Monzon vs. Miguel Angel Monson - E2000-03155-COA-R3-CV View
Hamilton County - The appellant, Marta Monzon, filed her notice of appeal more than 30 days after the entry of the trial court's final judgment. As a consequence of this late filing, we are without jurisdiction to hear this appeal. Accordingly, the appeal is dismissed.

Howard Zoldessy vs. Ingrid Davis, et al - E2000-02526-COA-R3-CV View
Anderson County - Upon the application of Howard Zoldessy, a temporary injunction was issued by the trial court against the defendants, Ingrid Davis and Arthur Davis. The Davises are the parents of Zoldessy's deceased wife and the grandparents of Zoldessy's daughter, Rachel. The injunction in question prohibits the defendants "from coming about [Howard Zoldessy] and his daughter, Rachel Zoldessy, or contacting him in any manner whatsoever." Following a bench trial, the trial court found that both defendants had committed willful criminal contempt by "coming about [Zoldessy's] residence on October 4, 1999." Each defendant was sentenced to 48 hours imprisonment for their contempt. Mr. Davis was also found in contempt for sending letters to Zoldessy and was sentenced to an additional term of imprisonment of 48 hours. The defendants appeal the trial court's findings of contempt, as well as the sentences imposed. We affirm the finding of contempt as to the letters sent to Zoldessy; however, we reverse the finding of contempt for the defendants' purported "coming about" Zoldessy and his daughter.

John Hopkins d/b/a Richland Creek Sod Farm vs. Polo Development - E2001-01331-COA-R3-CV View
Knox County - The sub-contractor plaintiff filed a lien against property owned by Gettysvue Partners, L.P., and leased to Polo Development, L.L.C. Kilmers, Inc., had contracted with Polo Development to construct a golf course thereon, and subcontracted with the plaintiff to supply sod for the course. The plaintiff was discharged by Kilmers and claimed a balance owing of $190,278.41. A performance bond had been posted by Kilmers as general contractor, a copy of which was filed by Gettysvue Partners pursuant to Tenn. Code Ann. § 66-11-142(b)(1) for the purpose of discharging the lien. The plaintiff consequently did not sue out the attachment required by Tenn. Code Ann. § 66-11-126. Two years after the complaint was filed the court ruled that the bond was ineffective because the insurance company was not licensed in Tennessee. Gettysvue Partners filed a motion for summary judgment because the plaintiff failed to sue out an attachment. The motion was granted. We affirm.

Dan McCoy vs. Susan Mizell - E2001-00008-COA-R3-CV View
Blount County - This appeal involves the application of T.C.A. § 47-29-101, a statute dealing with civil liability for dishonored checks and drafts. The lessors of a residence sued their lessee alleging that the latter acted with "fraudulent intent" when she stopped payment on a rent check given to the plaintiffs. Following a bench trial, the court below found that the defendant's action in stopping payment on the $650 rent check triggered the provisions of T.C.A. § 47-29-101. The court awarded the plaintiffs the face amount of the check, as well as interest, treble damages capped at $500, and attorney's fees of $1,500 – a total of $2,720.52. In the same judgment, the court also awarded the plaintiff damages for breach of the lease, finding these damages – before the allowance of a credit to avoid a double recovery – to be $1,483.25. The defendant only appeals the judgment awarded under T.C.A. § 47-29-101. She argues that the trial court erred in its application of that statute to the facts of this case. The plaintiffs contend that the defendant's appeal is frivolous, thus entitling them to damages pursuant to the provisions of T.C.A. § 27-1-122. We modify the judgment below to delete the award of $2,720.52 to the plaintiffs under T.C.A. § 47-29-101. This modification also requires us to modify the trial court's award for breach of the lease so as to increase that award to $1,493.25. As modified, the trial court's judgment is affirmed.

Edna Cooksey, et al vs. HCA Health Services of TN - M2001-00303-COA-R3-CV View
Davidson County - The only question in this appeal is whether the injury a patient suffered during post-operative care resulted from a medical procedure and, therefore, required expert proof to establish the hospital's liability. The Circuit Court of Davidson County held that the complaint sought damages for professional negligence and that since the plaintiff did not rebut the hospital's motion for summary judgment with any expert proof, the complaint must be dismissed. We affirm.

William Hood vs. Patsy Hood - M2001-00206-COA-R3-CV View
Sequatchie County - The parties executed a marital dissolution agreement pursuant to divorce, which required the wife to transfer her interest in a 36 acre tract of marital property to the husband, and the husband to sell the tract, with the net proceeds to be divided between the parties. The wife subsequently quitclaimed her interest in the property, and the trial court incorporated the marital dissolution agreement into the Final Decree of Divorce by reference. When the wife filed a motion to enforce the agreement, the trial court ruled that any lien on the property the wife had acquired by virtue of the agreement was extinguished when she signed the quitclaim deed. We reverse the trial court.

In re: Estate of Guy White - M2001-00632-COA-R3-CV View
Giles County - This appeal involves a dispute between a widow and her six sons regarding a small tract of property her estranged husband conveyed to the sons approximately nine months before he died. The widow filed a petition in the Chancery Court for Giles County seeking appellate review of the Giles County Probate Court's orders. She also sought a declaration that the decedent's conveyance to the sons was a fraudulent