Court of Appeals Opinions - 1^st Quarter 2003

The following Opinions are available for download:

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Cases posted the week of 03/31/2003
Larry Benton v. Vanderbilt University - M2002-00085-COA-R3-CV View
Davidson County - This is a case of first impression regarding the enforceability of an arbitration agreement against a third party. The plaintiff was a passenger in an automobile accident and was treated at the defendant hospital. The hospital filed a statutory hospital lien against any proceeds the plaintiff might recover in any lawsuit arising out of the car accident. The plaintiff later successfully sued the tortfeasor for the injuries he sustained in the accident. Thereafter, the hospital sought to recover under its lien for the balance of the plaintiff's medical bills that were not paid to the hospital by the plaintiff's insurance carrier. The plaintiff filed this action against the hospital, claiming that the hospital's practice of balance billing violates the institution agreement between the hospital and the plaintiff's insurance carrier. The hospital filed a motion in the trial court to compel arbitration, pursuant to an arbitration provision contained in the institution agreement. The trial court denied that motion. The hospital now appeals the denial of its motion to compel arbitration. We reverse, concluding that the plaintiff, a third-party beneficiary to the institution agreement seeking to enforce his rights under that agreement, is bound by the arbitration provision contained within that agreement.

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Cases posted the week of 03/24/2003
Edward Gray vs. Johnson Mobile Homes - W2001-01982-COA-R3-CV View
Hardeman County - This is a contract case. The buyer contracted to purchase a mobile home. After the home was delivered, the buyer inspected it and found it to be in unsatisfactory condition. The buyer complained to the seller and then to the manufacturer, each of whom attempted to remedy the problems. The buyer found the repairs to be unacceptable and revoked his acceptance of the mobile home. The buyer sued the seller, the manufacturer, and the finance company. The buyer settled with the finance company. The seller became insolvent and did not appear at the trial. Consequently, the buyer went to trial against the seller and the manufacturer, with only the manufacturer present. The trial court found for the buyer and apportioned the damages between the seller and the manufacturer. On appeal, the buyer argues that the trial erred in apportioning the damages between the seller and the manufacturer, and in awarding him insufficient damages. The manufacturer argues that the trial court erred in denying its motion for involuntary dismissal, and in awarding damages against the manufacturer. We affirm.

Robert Stephenson vs. Mary Stephenson - W2002-01064-COA-R3-CV View
Madison County - This appeal involves a will contest. The trial court found the testator to be competent at the time the will was executed and held that the will was the "complete, whole, true and valid Last Will and Testament" of the testator. For the following reasons, we affirm.

Jeffrey Camporal v. Richard Ford - M2002-01409-COA-R3-CV View
Franklin County - This case involves a dispute arising from a Promissory Note executed by and between the Appellant/Maker and Appellee/Payee. Specifically, Appellant asserts that he signed the Note in a representative capacity and, therefore, he is not personally liable on the Note. The Circuit Court of Franklin County granted Appellee's Motion for Summary Judgment, entering a Judgment against Appellant for principal, interest, and costs. Appellant appeals from this Judgment. We affirm.

Richard Lee v. City of Lavergne - M2001-02098-COA-R3-CV View
Rutherford County - The cause was heard by the Chancery Court for Rutherford County, on a petition for Writ of Certiorari. The Chancellor remanded the case and ordered the City of LaVergne to provide plaintiff a hearing before the City Administrator. The City appealed. We find the appellee was an at will employee, and as such, has no property interest in his job. Therefore, a due process claim is inapplicable. Appellee relies upon the City of LaVergne Employee Manual. The Manual does not contain clear and binding language to create a contract of employment, and does not create any property rights in appellee. Therefore, the judgment of the Chancellor is reversed.

Pacific Design Ventures v. Big River Breweries - M2001-02395-COA-R3-CV View
Davidson County - The Chancery Court of Davidson County granted summary judgment and dismissed appellants' suit. On appeal, the appellants argue the Chancellor erred in striking their response to appellees' statement of undisputed facts, amended complaint and affidavit supporting the amended complaint as being late-filed. We find the Chancellor did not abuse his discretion, and we also find summary judgment was appropriate. Therefore, we affirm.

Kurt Seraphine v. Aqua Bath - M2000-02662-COA-R3-CV View
Davidson County - This is an appeal from the grant of Appellees' motion for summary judgment. Appellant, a former employee of Appellee company, brought various claims against the company, and the company's top executives. Against the company, Appellant sought damages and specific performance based on an alleged breach of a stock option agreement and damages for breach of the implied duty of good faith and fair dealing. Against the individual defendants, Appellant sued on claims of statutory and common law inducement to breach. Appellees counterclaimed for a declaratory judgment that Appellant had no option to purchase shares in the company because the option expired when his employment terminated. Summary judgment was granted on Appellees' declaratory judgment claim and Appellant's claims were dismissed. We reverse the trial court's holding that the stock option expired with termination of employment, but find Appellant has not demonstrated a breach of the stock option agreement or his right to any remedy thereunder. We affirm the trial court's grant of summary judgment on the breach of duty of good faith and intentional interference claims.

State Dept of Children's Srvcs v. D.D.B. - M2002-00523-COA-R3-JV View
Montgomery County - This appeal arises from the termination of parental rights by the juvenile court. We affirm the juvenile court.

Dept of Human Srvcs. / Dept of Children Srvcs. v. Debra Wilson - M2002-00233-COA-R3-JV View
Dept of Human Srvcs. / Dept of Children Srvcs. v. Debra Wilson - M2002-00233-COA-R3-JV (Dissent) View
Warren County - This case involves the State's request that the parents of a minor child taken into the State's custody pay child support retroactive to the date the child was taken into custody. The State did not request such support until almost two years after the child was taken into custody. The trial court refused to grant the State support beyond the date of the filing of the petition requesting support. We affirm, as modified.

Sue Ann Bowser v. John Bowser - M2001-01215-COA-R3-CV View
Maury County - Prior to a determination on a complaint for divorce filed by Ms. Bowser, the trial court found the parties to be married pursuant to the common law of Ohio after their first divorce in that state in 1984. The trial court then classified and distributed the marital property and denied Ms. Bowser's request for rehabilitative or in futuro alimony. We affirm the decision of the trial court finding that a common law marriage existed, affirm the trial court's distribution of property, modify the alimony decision and remand the cause for further proceedings consistent with this opinion.

Leroy McBee v. David Elliott - M2002-00277-COA-R3-CV View
Franklin County - In this case, a brother and sister dispute who is the actual owner of property formerly owned by their deceased parents. We are asked to decide if the trial court properly relied upon promissory estoppel and adverse possession to recognize that the brother had a defense to this claim for possession. We affirm the decision of the trial court.

Ingram v. Beazer Homes - M2001-01641-COA-R3-CV View
Davidson County - This litigation arises from the 1994 sale of a newly constructed house and lot backing up to a subdivision common area with an existing natural sinkhole, which is utilized for surface water drainage from several nearby lots. During development of the subdivision the defendant filled the area including a portion of the lot purchased by the plaintiffs. In 1997, the plaintiffs became concerned about the ground settling in their back yard and about perceived dangers of the nearby sinkhole. They sued the defendant as subdivision developer, house builder, and seller of the property and sought rescission or alternative relief. The Chancery Court ordered rescission with the plaintiffs recovering the appreciated value at the time of trial and the cost of improvements, plus prejudgment interest on that total, but without any setoff for the rental value during the plaintiffs' occupancy. We reverse and remand due to errors in the trial court's calculation of the amount payable upon rescission and related issues. While we could affirm the rescission, we are reluctant to limit the parties and the trial court to that remedy, since we anticipate additional proof by the parties and a significantly different result upon remand.

Russell Lipsey vs. Protech Sys. - W2001-01785-COA-R3-CV View
Shelby County - This is a negligence case. The owner of a three-story historic building was remodeling it. He called a fire sprinkler company to move a sprinkler pipe. The repairman cut one of the sprinkler pipes and, thinking it was a "dead pipe," pushed it behind some sheetrock without capping it. The sprinkler system was regulated by an air compressor that filled the pipes with pressurized air until the system was triggered to allow water to flow through the pipes. The repairman left before the compressor completely charged the system, that is, before the air pressure reached the required level to hold the water back. Two days later, water began rushing out of a sprinkler pipe, causing extensive damage to the building. The owner sued the fire sprinkler company for damage to the building and its contents as well as for interruption of his business. At the trial, there was conflicting testimony about whether the water came out of the pipe that the repairman cut or whether it came out of another pipe. The jury found that both parties were zero percent responsible; thus, the owner recovered no damages. The owner moved for judgment notwithstanding the verdict or for a new trial. Both motions were denied. The owner appeals, and we affirm.

City of Oakland vs. Lenita McGraw - W2002-01552-COA-R3-CV View
Fayette County - This is a municipal incorporation case which tests the constitutionality of Chapter 129, Public Acts of 2001, codified as T.C.A. § 6-1-210(b) and also presents the issue of whether the action instituted by an adjoining incorporated municipality to invalidate the incorporation of the neighboring area is an election contest governed by the limitation period established by T.C.A. § 2-17-105. The trial court held that Chapter 129, Public Acts of 2001, is unconstitutional and further held that the incorporated municipality's action to invalidate the unincorporated area's referendum election and to revoke its charter is not an election contest governed by T.C.A. § 2-17-105. The territory seeking incorporation appeals, and the county election commission that certified the election appeals by the Tennessee Attorney General, defending the constitutionality of the subject Act. We affirm.

In Matter of D.A.H. - W2002-00733-COA-R3-JV View
Shelby County - This is a termination of parental rights case. The father appeals from the order of the juvenile court terminating parental rights to his child. Specifically, the father asserts that the grounds for termination cited by the trial court are no longer applicable based on the Supreme Court's recent holding in Jones v. Garrett, 92 S.W.3d 385 (Tenn. 2002). Because we find a distinction between the instant case and Jones v. Garrett, we affirm the order of the trial court.

Gail Carson vs. Diamler Chrysler - W2002-03088-COA-R3-CV View
Shelby County - The trial court dismissed plaintiff's cause of action upon finding it moot. We affirm.

Beale St. Dev. vs. George Miller - W2001-01133-COA-R3-CV View
Shelby County - This is a disagreement over the exercise of an option contract. The Appellant asserts that he was prevented from exercising his option. For the reasons stated below, we affirm the trial court's ruling that the Appellant never made an unconditional tender of the funds required to exercise the option, and thus did not properly exercise the option during its term.

Gurkin's Market vs. Alcohol/Licensing Comm. - W2002-01648-COA-R3-CV View
Shelby County - Appellant was found by the Beer Board to be in violation of a city ordinance prohibiting the sale of beer to a minor. The Board suspended Appellant's beer permit for forty-five days. It is contended on appeal that the proceedings should be held null and void because the hearing began with a prayer and further contended that the trial court applied the wrong standard of review. We affirm.

Rick Williams vs. Angela Williams - E2002-01995-COA-R3-CV View
Rhea County - The Trial Court in this divorce action, granted the parties a divorce and divided marital property. The husband appeals, seeking additional marital property. We affirm.

Ben Wilson vs. Kate Wilson Ward - E2001-02177-COA-R3-CV View
Greene County - The Trial Court, exercising its equitable powers, ordered property sold and proceeds distributed in accordance with the terms of a Will in an estate closed in 1982. On appeal, we affirm.

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Cases posted the week of 03/17/2003
In Re: Shiann Horner - E2002-00588-COA-R3-JV View
Greene County - This appeal focuses on the trial court's guardianship decree regarding Shiann Marie Horner (DOB: November 18, 1996) ("the child"). When the child's mother died, she moved in with her father, Charles E. Horner ("the father"), in Greene County. Following the father's incarceration as a result of his second arrest for driving under the influence of an intoxicant ("DUI"), the child started living full-time with her weekend caregivers, Ralph L. Hensley and Diana Hensley ("the Greeneville couple"), a married couple who are not related to the child by blood or marriage. The child's maternal aunt, Lori Lynn Kopsi, a resident of Menominee, Michigan ("the Michigan aunt"), filed a petition seeking custody of the child. The Greeneville couple responded with their own petition for custody. Following a hearing on the competing petitions, the trial court determined that it was in the child's best interest that the Greeneville couple should serve as the child's guardian. The Michigan aunt appeals, challenging the trial court's judgment. We affirm.

Ferryl McClain vs. Richard McClain - E2002-00913-COA-R3-CV View
Sullivan County - This is a divorce case. The trial court dissolved the parties' marriage based upon a stipulated ground for divorce; divided the marital property; and awarded Richard Perry McClain ("Father") primary physical custody of the parties' two minor children. Ferryl Theresita McClain ("Mother") appeals the grant of custody to Father. In addition, she raises several procedural issues. We affirm.

Adrian Scaife vs.Chantelle Roberson - E2002-02666-COA-R3-CV View
Hamilton County - John D. Knowles, Jr. ("Deceased") died intestate in December of 2000. A Petition for Intestate Administration ("Petition") filed in April of 2001, listed Adrian Scaife ("Plaintiff") as one of Deceased's daughters. This Petition never was granted. Several months later, an Amended Petition for Intestate Administration ("Amended Petition") was filed. The Amended Petition listed Plaintiff as an heir, but did not state Plaintiff's relationship to the Deceased. A. Chantelle Roberson ("Defendant") sought to be appointed administratrix of the Deceased's estate (the "Estate") and signed the Amended Petition. The Amended Petition was granted and Defendant was named administratrix of the Estate in June of 2001. The Notice to Creditors for the Estate was published in June and July of 2001. Notice to Creditor letters were sent to all known creditors and any persons having claims, or believed to have claims, against the Estate. Plaintiff received a copy of the Letters of Administration and a Notice to Creditor letter informing her that in order to inherit from the Deceased, she would need to establish paternity within the four month time period allowed to creditors for filing claims. Plaintiff took no steps to establish paternity within the four month period. In February of 2002, Plaintiff sued seeking to prohibit Defendant from denying Plaintiff is a child of the Deceased. The Trial Court granted Defendant summary judgment. Plaintiff appeals. We affirm.

State v. Travis Thompson - M2001-02354-COA-R3-CV View
Davidson County - This case involves the Tennessee Health Club Act. The defendant/appellees purchased a health club and failed to obtain a certificate of registration. Three months later, the health club owners obtained a certificate of registration. The State of Tennessee, through the Attorney General, filed a lawsuit against the health club owners alleging violations of the Tennessee Consumer Protection Act and the Health Club Act seeking injunctive relief, substantial fines, and several hundred thousand dollars in restitution. The trial court granted partial summary judgment to the health club owners, holding that the remedies under the Health Club Act were available only to consumers, not the State, and that there was no proof of an "ascertainable loss" under the Tennessee Consumer Protection Act. The trial court also granted the health club owners' request for attorney's fees and costs. The State appeals. We affirm in part and reverse in part, finding, inter alia, that the State may seek remedies under the Health Club Act on behalf of consumers, affirming the trial court's ruling that proof of an ascertainable loss is required, and affirming the award of attorney's fees.

Shirley Barlow v. Jarvis Barlow - M1999-00749-COA-R3-CV View
Wilson County - These parties were married for twenty-seven years before the wife abandoned the marriage and sought a divorce which was uncontested. She was awarded one-half of the net marital estate, and rehabilitative alimony. Wife appeals, claiming that because of her illness she is entitled to more than 50 percent of the marital property, is entitled to alimony in futuro rather than rehabilitative alimony, and is entitled to attorney fees. We affirm the trial court's judgment, except as to the period of spousal support, which is extended from three years to five years. We also remand this case to the trial court for a determination of whether the post-judgment facts alleged by the husband warrant a further modification of the alimony award.

James E. Johnson v. Bd. of Medical Examiners - M2002-00048-COA-R3-CV View
Davidson County - This case involves the revocation of a physician's medical license. A patient saw a physician regarding a chronic skin condition. A series of unorthodox treatment methods resulted in the patient having upper respiratory problems, pain, dizziness, blurred vision, a small stroke, infection, and an abscess that had to be surgically drained and removed. As a result, the Tennessee Department of Health filed charges against the physician. After an administrative hearing, the Tennessee Board of Medical Examiners found that the physician engaged in unprofessional and unethical conduct, committed acts of gross malpractice, and demonstrated a pattern of incompetence and ignorance in the course of medical practice. The Board revoked the physician's medical license and assessed civil penalties. The physician sought judicial review in the chancery court. The chancellor affirmed the civil penalties but reversed the Board's revocation of the physician's medical license. The Tennessee Department of Health and the Tennessee Board of Medical Examiners appeal, arguing that the trial court substituted its judgment for the judgment of the Board. We reverse the ruling of the trial court, finding that the Tennessee Board of Medical Examiners did not abuse its discretion, did not act arbitrarily or capriciously, and that its revocation of the physician's medical license was supported by substantial and material evidence. Thus, we reinstate the Board's decision to revoke the physician's medical license.

Margaret Wightman vs. Truman Clouse - E2002-00318-COA-R3-CV View
Cumberland County - The Trial Court held plaintiff was entitled to use roadway across defendants' land. On appeal, we affirm.

John Moore vs. Teresa Moore - E2001-03028-COA-R3-CV View
Greene County - John Paul Moore appeals a judgment in a divorce proceedings, complaining that the Trial Court should have awarded him primary parenting rather than shared parenting with the child's mother, Teresa Ann Moore. He also complains that the Court erred in awarding an attorney fee to Ms. Moore in the amount of $300. Our standard of review as to both issues is whether the Trial Court abused its discretion. We find the Trial Court properly exercised its discretion and affirm.

Alica Rakestraw vs. Gregory Rakestraw - E2002-01151-COA-R3-CV View
Bradley County - The sole issue in this divorce case is whether the Trial Court reached the correct decision regarding custody of the parties' child. The Court granted primary custodial care of the parties' daughter, Kendra Paige Rakestraw, then 10 years old, to Gregory Keith Rakestraw ("Father"). Alica Delane Rakestraw ("Mother") argues on appeal that the evidence preponderates against the Court's exercise of discretion in rendering its custody decision, and that the Court erred in denying her motion to alter or amend the judgment and her motion for a new trial. We affirm the judgment of the Trial Court in all respects.

Hellen Wilson vs. CSX Transportation - E2002-00291-COA-R9-CV View
Hamilton County - This interlocutory appeal raises the question of the admissibility of the testimony of three expert witnesses which the Plaintiff, Hellen M. Wilson, sought to present at trial. The Trial Court excluded the expert testimony of Dr. William J. Nassetta and certified pursuant to T.R.A.P. Rule 9 the following question for this Court: "whether the testimony of the expert witness, William J. Nassetta, M.D., as reflected in [his] attached affidavit,. . .is admissible under the doctrine of the Tennessee Supreme Court decision in McDaniel v. CSX Transportation, Inc." The Trial Court also granted permission to CSX Transportation (CSXT) to appeal its ruling admitting the testimony of two other expert witnesses offered by the Plaintiff. We hold that the testimony of all three expert witnesses is admissible under the principles enunciated in McDaniel.

Dudley Eastbourne vs. Roger Brumitte - E2002-00068-COA-R3-CV View
Loudon County - In this appeal from the Chancery Court for Loudon County the Appellant, Roger Brumitte d/b/a Roger Brumitte Construction, argues that the Trial Court erred in awarding the Appellees, Dudley C. Eastbourne and wife Barbara A. Eastbourne, damages for defects in the construction of their home. We affirm the judgment of the Trial Court as modified and remand for enforcement of the judgment and collection of costs below.

Perry March v. Lawrence Levine, et al - M2000-01955-COA-R3-CV View
Perry March v. Lawrence Levine, et al - M2000-01955-COA-R3-CV (Dissent) View
Davidson County - This matter is a dispute between Absentee Janet March's parents, Lawrence and Carolyn Levine, and her husband, Perry March. The case began as an in rem battle over the Absentee's property after Perry March opened an absentee estate following Janet's disappearance. However, the Levines, thirty-one months after the absentee estate was opened, asked to amend the proceedings and add a claim for wrongful death against Perry March. The court allowed the amendment. Perry March incurred citations for civil contempt of court, and the Levines were eventually granted a default judgment as a result of his contempt. A judgment for $113,500,000.00 in damages was entered against him. Perry March appealed. We find that the trial court abused its discretion in allowing the wrongful death action, and we reverse the trial court. The default judgment for wrongful death and the award for damages against Perry March are reversed.

Felicia Webb vs. Ernest Gillespie - W2001-02828-COA-R3-JV View
Felicia Webb vs. Ernest Gillespie - W2001-02828-COA-R3-JV (Dissent) View
Shelby County - This is a child support case. Father is the pastor of a church. Mother contends that Father uses a church bank account for his personal use. Mother argues that the funds in this account minus legitimate church expenses should be imputed to Father as income for purposes of calculating child support. The trial court found that it could not determine Father's income and, following the Child Support Guidelines, imputed $25,761.00 to him as income. We affirm.

Pravin Patel vs. Douglas Bayliff - W2002-00238-COA-R3-CV View
Shelby County - This is an appeal from a grant of summary judgment. The underlying case concerned the sale of a home to the Appellants that, subsequent to the closing, evidenced termite damage. Appellant buyers claim that the Appellee sellers are responsible for this damage under various theories of recovery, all of which were dismissed by the trial court. Appellants further assert that the Appellee termite company is responsible for the damages because they failed to disclose on the termite inspection report that the home had been repeatedly treated for termites by that same company. We affirm in part, reverse in part, and remand.

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Cases posted the week of 03/10/2003
Cynthia Lee Bratton vs. Michael Wayne Bratton - E2002-00432-COA-R3-CV View
Hamblen County - In divorce action the trial court granted divorce, refused to enforce a postnuptial agreement, divided marital property, awarded alimony and child support. On appeal, we affirm.

Robert M. Overholt, M.D., et al vs. Hugh Ray Wilson - E2002-01479-COA-R3-CV View
Knox County - In this suit, Plaintiffs Robert M. Overholt, Joe W. Black, and Michael D. Price sue Defendant Hugh Ray Wilson, seeking possession of a portrait of long-time University of Tennessee football coach, General Robert R. Neyland. The suit also sought injunctive relief as to a proposed sale of the portrait by Mr. Wilson in connection with a bankruptcy sale of assets of a corporation owned by him. Mr. Wilson's sole defense of the suit was that it was barred by T.C.A. 28-3-105(2), the three-year statute of limitations for recovery of personal property. The trial court submitted to the jury a single question regarding the only material factual dispute, and upon receipt of the jury's finding held that the statute of limitations was not a viable defense and granted judgment in favor of the Plaintiffs. Mr. Wilson appeals and raises four issues, hereinafter set out, for our consideration. We find that they are without merit and affirm.

The Oceanics Schools, Inc. vs. Clifford E. Barbour, Jr. - E2002-00181-COA-R3-CV View
Knox County - The Oceanics Schools, Inc. ("the plaintiff") filed what it characterizes as an action to enforce the judgment ("the OSC judgment") it had previously obtained against Operation Sea Cruise, Inc. ("OSC"). In that action, the plaintiff sued Clifford E. Barbour, Jr., the alleged alter ego of the corporation, seeking to pierce the corporate veil of OSC in order to enforce the OSC judgment against Barbour. The trial court found that Barbour was in fact the alter ego of OSC; consequently, the court allowed the plaintiff to pierce the corporate veil to enforce the OSC judgment against Barbour. He appeals, raising a number of issues. As modified, the judgment of the trial court is affirmed

Wylie B. Dowlen v. Gary Matthews - M2001-03160-COA-R3-CV View
Montgomery County - This appeal arises from a police officer's lawsuit against a Clarksville resident for assault, defamation, and intentional infliction of emotional distress after the officer responded to a noise complaint at the resident's home. The trial judge directed a verdict for the defendant. We affirm the trial court.

Karen Gale Engel v. Jerry Burton Young, Sr. - M2001-00734-COA-R3-CV View
Wilson County - This appeal arose after a paternity and custody proceeding was resolved by the trial court in which custody of the child was granted to Mother and visitation was granted in part to Father and in part to the child's half-siblings, Father's adult daughters. Mother appeals, arguing that the third party visitation order violates her constitutional rights as a parent and that she should have been awarded the tax deduction for the child. Because the trial court was incorrect in ordering the third party visitation, we reverse that portion of the trial court's decision which awarded visitation to the child's half-siblings. Because the trial court did not abuse its discretion in awarding the tax deduction to Father, we affirm that portion of the trial court's decision. We also decline to award Mother attorney's fees on appeal

In the Matter of: A.J.H., A Child under 18 Years of Age - M2002-01568-COA-R3-JV View
White County - The trial court terminated the parental rights of the father of a three-year-old boy on several statutory grounds, including abandonment and failure to remedy conditions that prevent him from providing a safe home for the child. See Tenn. Code Ann. § 36-1-113(g). We affirm the trial court.

Dawn Larsen Niceley v. James Jacob Niceley, IV - M2001-02182-COA-R3-CV View
Robertson County - After a sixteen-year marriage and one child, Husband and Wife both filed for divorce. After hearing the evidence, the trial court fashioned a parenting plan which named Husband the primary residential parent during the school year and named Wife the primary residential parent during the summer and most holidays and school breaks; valued and divided the marital property; and awarded Wife attorney's fees as alimony in solido. We affirm the parenting plan and the distribution of marital property but reverse the award of attorney's fees because the trial court found Wife was not economically disadvantaged.

David J. Williams v. Tennessee Department of Correction - M1999-01661-COA-R3-CV View
Davidson County - This appeal involves a dispute between a prisoner and the Department of Correction regarding the expiration date of his Class X life sentence for aggravated rape. After unsuccessfully petitioning the Department for a declaratory order, the prisoner filed a petition for declaratory judgment in the Chancery Court for Davidson County asserting that the Department's Disciplinary Punishment Guidelines require the Department to treat his life sentence as one that fully expires in thirty years. The trial court granted the Department's Tenn. R. Civ. P. 12.02(6) motion, and the prisoner has appealed. We have determined that the trial court properly determined that the prisoner had failed to state a claim upon which relief can be granted. Accordingly, we affirm the judgment dismissing the prisoner's complaint.

Carlos Castillion vs. Sarah Castillion - E2002-01310-COA-R3-CV View
Hamilton County - In this divorce case, the husband questions on appeal the valuation of marital property and distribution made by the Trial Court. We affirm the Trial Court.

Charles Whited vs. Christy Fleenor - E2002-01185-COA-R3-JV View
Sullivan County - Trial Court ordered child's surname changed from mother's to father's. We reverse.

Charles Head v. James Gibson - M1999-00656-COA-R3-CV View
Davidson County - This is an appeal from a judgment granting a motion for summary judgment in favor of State Farm Mutual Automobile Insurance Co. that the uninsured motorist coverage offered to the plaintiffs was not implicated under the circumstances of this litigation. We affirm.

Mitzi Blair v. John Blair - M2001-02790-COA-R3-CV View
Sumner County -This divorce case involves issues of property classification and division regarding real property purchased by Wife prior to the parties' marriage and titled jointly in both Wife and Husband's names. The property became the marital residence where the couple lived during their marriage, but the majority of payments on the house mortgage were made by Wife's parents. Husband contributed virtually nothing to the marriage and substantially dissipated the couples assets through gambling and drug use. The trial court found the house to be marital property and divided the equity by giving the first $75,000.00 to Wife, as her original contribution, then dividing the remaining equity between the parties: 75% to Wife, 25% to Husband. Husband claims that half of the $75,000.00 down payment was a gift made to him by Wife prior to the marriage and, thus, his separate property. We affirm the decision of the trial court.

Naomi Hausler v. Discounts R. Us - M2002-01465-COA-R3-CV View
Smith County - Plaintiff, pro se, appeals the action of the trial court in denying her Petition in the Nature of a Petition to Vacate a Void Judgment and Collateral Attack. We affirm the trial court.

Rickey Moorman v. Dept of Correction - M1999-02675-COA-R3-CV View
Davidson County - This appeal involves a dispute between a prisoner and the Tennessee Department of Correction regarding the calculation of his sentence credits and his release eligibility date. After unsuccessfully petitioning for a declaratory order, the prisoner filed a petition in the Chancery Court for Davidson County seeking a declaratory judgment regarding his entitlement to sentence credits as well as a determination that he was entitled to immediate release. The trial court granted the Department's Tenn. R. Civ. P. 12.02(6) motion to dismiss, and the prisoner has appealed. We affirm the trial court's conclusion that the prisoner's petition fails to state a claim upon which relief can be granted.

Dept of Children's Services v. Florence Hoffmeyer - M2002-00076-COA-R3-JV View
Dept of Children's Services v. Florence Hoffmeyer - M2002-00076-COA-R3-JV (Dissent) View
Robertson County - The natural parents of a seventeen year old girl appeal the action of the Juvenile Court of Robertson County terminating their parental rights based upon a finding of severe child abuse under Tennessee Code Annotated section 36-1-113(g)(4). Because the appellate record is incomplete, we vacate the judgment and remand the case to the trial court for further proceedings.

Barbara Vargo v. Lincoln Brass Works - M1999-00734-COA-R3-CV View
Davidson County - This appeal involves a dispute between an employee and her former employer over severance pay. After the employee obtained a $13,750 judgment in the Metropolitan General Sessions Court of Davidson County, the employer perfected a de novo appeal to the Circuit Court for Davidson County. Following a bench trial, the trial court concluded that the employee had a vested right to severance pay under the employer's severance policy and awarded the employee $15,262.50. The employer has appealed. We have determined that the employer's severance policy contained an enforceable contractual obligation to pay severance pay to eligible employees. In the absence of proof that the employee was ineligible, we find that the trial court correctly interpreted and applied the severance policy. Accordingly, we affirm the judgment.

Hoover, Inc. v. Metro Nashville Board of Zoning Appeals - M2001-00924-COA-R3-CV View
Davidson County - This is the fourth appeal from a zoning board's denial of a conditional use permit. In April 1992, the petitioner stone processing company filed an application with the respondent zoning board for a conditional use permit to operate a rock quarry. After years of litigation, the board issued findings of fact and denied the petitioner's application. The application was denied in part because the reclamation plan in the petitioner's proposal used water as fill material, contrary to the specification in the applicable ordinance that solids be used as fill material. The petitioner filed a petition for a writ of certiorari, arguing that the board's decision was arbitrary and capricious because reclamation plans using water as fill material had been approved in the past. The trial court denied the writ and upheld the board's decision. The stone processing company appealed. We affirm, finding that the board's decision was not arbitrary or capricious, and that material evidence supported the board's decision.

J.W., a minor & Jeana Watts, Individually v. Maury County - M2001-02768-COA-R3-CV View
Maury County - This is a Tennessee Governmental Tort Liability Act case. The defendant county employed a school resource officer at a county school. A fourteen-year-old student at the school attempted suicide while at home. The mother of the student asked the officer to counsel the son. In the course of doing so, the officer invited the student to spend the night at the officer's home. While the student was at the officer's home, the officer gave him alcohol and sexually assaulted him. The mother filed suit against the county on behalf of her son and herself, alleging that the county was liable under the Tennessee Governmental Tort Liability Act for negligently hiring, disciplining, and training the officer, and that the county was liable for the officer's intentional torts under T.C.A. § 8-8-302. The trial court granted the county's motion for summary judgment. On the appeal, the plaintiffs assert that the officer, when he sexually assaulted the student, was acting "in the scope of his employment" under the TGTLA, and that he was acting "by virtue of or under color of [his] office" under T.C.A. § 8-8-302. We affirm in part and reverse in part, finding that the officer was not acting "in the scope of his employment," but that a genuine issue of material fact exists as to whether the officer was acting "by virtue of or under color of [his] office."

Mill Creek Associates v. Jackson Foundation - M2001-02811-COA-R3-CV View
Dickson County - This is an unjust enrichment case. The plaintiff design firm was contacted by the defendant foundation to develop designs and a budget for the construction of a science theater. The chief designer of the firm worked on the project and presented a proposal to the foundation. The foundation neither accepted nor rejected the design firm's proposal. Instead, the foundation hired the design firm's chief designer. Part of the designer's duties with the foundation was to work on the science theater project "in house." The foundation refused to pay the design firm a fee for its work on the project. The design firm then sued the foundation on a theory of unjust enrichment for the work performed on the project while the chief designer was still at the firm. The trial court found that since the project was never completed, the preliminary designs did not confer a value on the foundation and, consequently, the foundation had not been unjustly enriched. The design firm now appeals. We reverse, finding that the work performed by the design firm constituted a benefit to the foundation, and that it would be unjust for the foundation to retain that benefit without paying the design firm for the value of the benefit.

David Norman v. Melissa Norman - M2002-01084-COA-R3-CV View
Williamson County - This extraordinary appeal arises from the trial court's denial of Husband's petition to reduce child support and alimony. The trial court found there was no significant variance of fifteen percent (15%) to modify child support. The trial court also determined that there was no justification for a decrease in alimony payments. The trial court reserved the issues relating to unclean hands and attorney fees. The parties raise multiple issues on appeal. For the following reasons, we vacate in part, reverse in part and remand.

Jackson Rose vs. Rick Welch - E2002-02042-COA-R3-CV View
Claiborne County - Attorney R. Jackson Rose ("Plaintiff") was hired by Rick Welch ("Defendant') to defend him on drug related criminal charges. The parties agreed to a flat fee of $25,000 for this legal representation. A retainer of $5,000 was paid up-front. Defendant signed a promissory note for the remaining $20,000. Defendant claims he lost confidence in Plaintiff's ability to adequately represent him after Defendant paid a total of $6,850 in attorney fees. Defendant discharged Plaintiff and obtained new counsel. Plaintiff sued for breach of contract. Defendant filed a counterclaim for legal malpractice and also claimed as a defense, inter alia, that Plaintiff's representation fell below the professional standard of care. The case was tried to a jury. After all of the proof was presented, the Trial Court directed a verdict for Plaintiff because Defendant had offered no expert proof to support his counterclaim or his defense to the breach of contract claim. We hold expert proof was not necessary in order for Defendant to prove he lost confidence in Plaintiff and discharged him with cause for that reason. We, therefore, reverse the entry of the directed verdict as to that issue only and remand the case for trial on the sole issue of termination for cause because of Defendant's "loss of confidence." We affirm all other aspects of the Trial Court's judgment.

Robyn Kenyon v. Albert Handal - M2000-01523-COA-R3-CV View
Sumner County - This appeal involves a medical malpractice action. After her baby was delivered stillborn, a patient filed suit in the Circuit Court for Sumner County against her obstetrician and the hospital, alleging that their negligent supervision of her labor after she arrived at the hospital caused the death of her baby. Both the obstetrician and the hospital filed properly supported motions for summary judgment. The trial court granted the motions after determining that the affidavit by the patient's medical expert had not been timely filed and did not comply with Tenn. Code Ann. § 29-26-115(a)(1), (b) (Supp. 2002). The patient filed a Tenn. R. Civ. P. 59.04 motion limited to the dismissal of her claim against the obstetrician. She supported the motion with the revised affidavit by her medical expert and her lawyer's affidavit explaining his efforts to comply with Tenn. R. Civ. P. 56. The trial court denied the patient's motion. On this appeal, the patient asserts that the trial court should have excused her tardy response to the obstetrician's summary judgment motion and that her medical expert's revised affidavit satisfies Tenn. Code Ann. § 29-26-115(a)(1), (b). We have determined that the trial court should have excused the patient from Tenn. R. Civ. P. 56.04's deadline for serving and filing opposing affidavits. However, we have also determined that affidavits of the patient's medical expert do not satisfy Tenn. Code Ann. § 29-26-115(a)(1). Accordingly, we affirm the summary judgment dismissing the patient's complaint against her obstetrician.

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Cases posted the week of 03/03/2003
Lilliam Corrado Executrix,. Est. of B. Connatser vs. Barbara Hickman- E2002-1703-COA-R3-CV View
Sevier County - This case involves a property line dispute. Both sides claim ownership of the disputed lots under deeds that have been of record for more than thirty years. Plaintiffs' deed is senior to Defendants'. The deeds created an interlock. Defendants' predecessors in title built a house in approximately 1965 that encroaches into the interlock. Defendants also have maintained a small strip of land to the west of this encroachment since that time. Plaintiffs used the northernmost portions of the disputed land for various uses including cutting firewood, erecting a television antenna and a dog pen, and building tree houses. Defendants claim ownership of the entire interlock under Tenn. Code Ann § 28-2-105 by adverse possession. The Trial Court granted Defendants ownership of the portion of land the house encroaches upon and the strip of land west of the encroachment that Defendants had maintained, but held the title to the remainder of the disputed property was Plaintiffs' by virtue of their senior record title. Defendants appeal. We affirm.

Mason Manor Apt. vs. Tawana Anthony - W2002-01769-COA-R3-CV View
Tipton County - Appellee, a privately owned, government subsidized apartment complex, filed an unlawful detainer action seeking to evict Appellant for numerous infractions of the lease. On the same day that the action was filed, Appellee had given Notice to Vacate to Appellant. The Notice to Vacate gave Appellant thirty (30) days to vacate the apartment. The General Sessions Court of Tipton County and the Circuit Court of Tipton County, on appeal, entered judgment for possession in favor of Appellee. Appellant appeals on the basis that the unlawful detainer action was filed prematurely in light of the additional thirty (30) days given by the Notice to Vacate. We reverse and remand.

American Indemnity v. Iron City Lumber - M2002-00650-COA-R3-CV View
Lawrence County - This case involves an insurance company's appeal of the trial court's decision that the company has a duty to defend its insured under a commercial general liability policy. Applying Texas law, we find that no such duty exists and, accordingly, reverse the decision of the trial court.

William A. Dalton v. Gerald Dale - M2002-01205-COA-R3-CV View
Davidson County - Defendant appeals adverse summary judgment as to diminution in value of a 1995 Jaguar XJ6 automobile based upon alleged undisputed expert testimony. Judgment is reversed, and the case is remanded.

Doris Dennis v. White Way Cleaners - M2002-00502-COA-R3-CV View
Davidson County - A supervisory employee of a dry cleaning firm filed suit against her employer alleging she was terminated from her job and replaced by a man. She contended that her employer's action was motivated by gender discrimination, in violation of the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101. The defendant argued that her termination was not based on discrimination, but was the result of a general downsizing and reorganization of the work force. The trial court granted summary judgment to the employer. We reverse, because we believe the plaintiff raised a genuine issue of material fact as to the reasons behind her termination.

Randy Hensley v. Dept of Correction - M2001-02343-COA-R3-CV View
Randy Hensley v. Dept of Correction - M2001-02343-COA-R3-CV (Concur) View
Davidson County - An inmate in a correctional institution sought a review of the punishment imposed by a disciplinary committee after finding that the inmate tested positive for drugs and attempted to alter a drug screen. The Chancery Court of Davidson County dismissed the petition for certiorari because the punishment alleged was not atypical or did not result in significant hardship to the petitioner. Therefore, the petition did not state a claim on which relief could be granted. We affirm.

J.D. Hickman v. Board of Parole - M2001-02346-COA-R3-CV View
Davidson County - Inmate filed a motion for declaratory relief regarding his rights to access certain materials held by the Board of Probation and Parole and sought an order from the trial court mandating the production of those materials at the expense of the Board. The trial court denied the motion for summary judgment filed by the inmate and dismissed the action in its entirety because the requirements for a mandatory injunction had not been met, but stated that the inmate was not prohibited from again seeking the materials by identifying the specific documents he wanted copied and paying in advance for the copies. We affirm the trial court's decision to deny the motion for summary judgment, but reverse the dismissal and remand.

John A. Higginbotham v. Anne Cleve - M2002-00899-COA-R3-CV View
Lincoln County - Anne Cleve appeals, pro se, the action of the trial judge in refusing to set aside a judgment entered against her enforcing a foreign judgment entered in the Circuit Court of Madison County, Alabama. We affirm the action of the trial judge.

In Re: T.L.R and A.W.R. - M2002-01101-COA-R3-JV View
Robertson County - This case involves the termination of parental rights. The mother of the two young children at issue had a history of cocaine and marijuana abuse. In September 1999, the state department of children's services obtained custody of the children and placed them in a foster home. While the children were in foster care, the mother participated in drug rehabilitation programs and attempted to obtain permanent employment. The mother made some progress, but repeatedly relapsed back into drug and alcohol use, and failed to procure a permanent job or a permanent residence. In August 2001, the State filed a petition to terminate the mother's parental rights. The trial court granted the State's petition. The mother now appeals. We affirm, finding clear and convincing evidence that the mother had failed to comply with the permanency plan, that conditions that prevented the children's safe return still persisted, and that termination of the mother's parental rights is in the children's best interest.

Jerry T. Beech Concrete v. Larry Powell Builders - M2001-02709-COA-R3-CV View
Davidson County - In this appeal from the trial court's award of attorneys fees, Appellant seeks review of the trial court's refusal to award the full amount of fees sought. We modify the trial court's findings and affirm as to the amount of the award.

Clinton Lien v. Nashville and Davidson County - M2002-00721-COA-R3-CV View
Chief Emmett H. Turner, of the Metropolitan Government of Nashville and Davidson County Police Department, discharged Appellant from employment as a police officer for certain violations of various rules and regulations. The officer appealed his discharge and, after a hearing, the Administrative Law Judge reduced his penalty to a thirty day suspension. The appeal was further heard before the Civil Service Commission, which reversed the ALJ and upheld the dismissal of the officer. The Chancery Court of Davidson County upheld the action of the Civil Service Commission. The officer appeals, and we affirm the judgment of the trial court.

Jabari Mandela v. Donal Campbell - M1998-00208-COA-R3-CV View
Davidson County - This appeal involves a dispute between a prisoner and the Tennessee Department of Correction regarding the Department's mail policy. After the Department returned two packages addressed to him to their respective senders and denied his request for a declaratory order, the prisoner filed a petition in the Chancery Court for Davidson County seeking a declaratory judgment that the Department's policy should have been promulgated as a rule under Tennessee's Uniform Administrative Procedures Act and that returning the packages was inconsistent with the warden's statutory obligation to "receive" an incarcerated prisoner's property. The trial court upheld the policy and its application to the prisoner, and the prisoner has appealed. We affirm.

David Norman v. Melissa Norman - M2001-02796-COA-R3-CV View
Williamson County - This appeal arises from a divorce proceeding. The trial court, finding the Husband completely at fault, granted Wife a divorce. The trial court also distributed the parties' marital property, awarded Wife long-term alimony, set the child support amount and ordered Husband to pay $30,000 of Wife's attorney fees. The parties raise multiple issues on appeal. For the following reasons, we vacate in part, reverse in part and remand.

Janis Oliver-Gill v. Jerry T. Krohn - M2001-02327-COA-R3-CV View
Williamson County - This appeal involves a suit brought by the buyer of certain real property against the builder and seller of that home seeking damages for, inter alia, negligent construction. From a jury verdict rendered in favor of the defendant, the plaintiff appeals. We affirm.

Robert Pirtle v. Board of Paroles - M1998-00454-COA-R3-CV View
Davidson County - This appeal involves a dispute between a prisoner and the Tennessee Board of Paroles regarding the revocation of his parole. After exhausting his administrative remedies, the prisoner filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County asserting that he did not commit the crime that triggered the revocation of his parole. The trial court eventually dismissed the petition on the ground that it was not timely filed, and the prisoner has appealed. While his appeal was pending, the prisoner was released from the Department of Correction. Accordingly, because this appeal is now moot, we vacate the trial court's order and remand the case with directions to dismiss the prisoner's petition.

John Rhoades v. Michael Taylor - M2001-00643-COA-R3-CV View
Sumner County - This appeal involves a conflict between neighbors over whether the Taylors have a right to use a gravel driveway located on property owned by the Rhoades to access their property. The trial court found that an implied easement was proved. The Rhoades appeal that judgment to this court arguing that the Taylors failed to prove two elements necessary for a finding of an implied easement. We affirm the trial court's judgment.

Charles Rooker v. Donal Campbell - M1999-01657-COA-R3-CV View
Davidson County - This appeal involves a dispute between a prisoner and the Department of Correction over his release eligibility date. Dissatisfied with the response to his petition for a declaratory order, the prisoner filed a petition for a declaratory judgment in the Chancery Court for Davidson County, asserting that the extension of his release eligibility date violated the Department's policy regarding punishment for escape and the terms of his plea agreement. He also claimed that the Department had wrongfully deprived him of sentence reduction credits. The trial court dismissed the petition, and the prisoner has appealed. We affirm.

Leroy Smith v. Ronald Gourley - M2002-00044-COA-R3-CV View
The Chancery Court of Sumner County denied enforcement of a lease with an option to purchase. On appeal the lessee argues that the chancellor erred in refusing to allow a copy of the lease/option to be introduced into evidence after he testified that the original had been lost. We find that the chancellor refused to allow the lease/option into evidence because of a lack of trustworthy proof regarding its execution. Therefore, we affirm.

State ex rel. Anne Pope vs. United States Fire - E2002-01092-COA-R3-CV View
Hamilton County - This is a suit by the State of Tennessee, ex rel. Anne B. Pope, in her official capacity as Commissioner of the Tennessee Department of Commerce and Insurance, against the following Defendants: United States Fire Insurance Company; United States Fidelity and Guaranty Company; Employers Reinsurance Corporation; Utica Mutual Insurance Company; Insurance Company of North America; and Safeco Insurance Company of America. The suit seeks to require the Defendant Corporations to deposit with a Receiver approved by the Chancery Court the principal amount of the last rider to a bond that they had executed to ensure payment of worker's compensation benefits that might be owed by North American Royalties, Inc., and its subsidiaries, Wheland Holding Company, Inc., Wheland Manufacturing Company, Inc., and Wheland Foundry, LLC. The suit was initiated because North American Realties, Inc., which sought bankruptcy protection, was self-insured pursuant to T.C.A. 50-6-405. A number of employees who contended they were entitled to benefits under the Worker's Compensation Statute intervened, insisting that the Companies which had executed the bonds were liable for the aggregate amount thereof, rather than the amount shown on the last rider issued as to the bonds in question. The Trial Court found in favor of the Insurance Companies. We affirm.

Sandra Sparkman & Joe Sparkman vs. Bluecross Blueshield - E2002-00932-COA-R3-CV View
Hamilton County - Plaintiffs' action was dismissed by the Trial Court on the grounds plaintiffs failed to exhaust administrative appeals. On appeal, we Vacate and Remand.

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Cases posted the week of 02/24/2003
Kevin Haney vs. Brad Copeland - E2002-00845-COA-R3-CV View
Knox County - Kevin C. Haney and his wife, Marilyn Sue Melhorn ("the buyers"), purchased a retail business from Brad Copeland ("the seller") for $200,000. When their business failed, the buyers sued the seller for rescission and, in the alternative, for compensatory and punitive damages, alleging fraud and breach of contract. Following a bench trial, the buyers were awarded incidental and punitive damages totaling $99,053. The buyers appeal, arguing that they were entitled to additional damages equal to the amount of the purchase price. We affirm.

Kenneth Hinton vs. Estate of John Knowles, Jr. - E2002-02493-COA-R3-CV View
Hamilton County - Estate appealed Trial Court's Judgment that plaintiff was the son of decedent. We affirm.

Dept of Children's Srvcs vs. A.N.G. & S.L.G - E2002-01114-COA-R3-JV View
Greene County - The State of Tennessee, Department of Children's Services ("State" or "DCS") obtained temporary custody of the three minor children of A.N.G. ("Mother") and S.L.G. ("Father")(collectively referred to as "Parents") after Parents' two year old son was found in a roadway near their home. DCS later sought to terminate Parents' parental rights. After a trial, the Juvenile Court determined there were sufficient grounds to terminate Parents' parental rights and doing so was in the best interests of the children. Parents appeal, claiming DCS failed to prove by clear and convincing evidence that there were sufficient grounds to terminate their parental rights. Parents also claim DCS failed to prove by clear and convincing evidence that termination of their parental rights would be in the best interests of the children. We affirm the judgment of the Juvenile Court.

Cathy Anderton v. Gerald Anderton - M1998-00950-COA-R3-CV View
Rutherford County -The trial court awarded rehabilitative alimony to wife who, in her complaint, did not seek alimony but who testified at discovery that she was indigent and needed financial assistance. Husband argues that absent a pleaded request for alimony, the trial court was powerless to award it. The trial court disagreed. We affirm. Husband's petition alleging that wife was in criminal contempt for failing to allow visitation with the child of the parties was dismissed, and husband appeals. An acquittal of criminal contempt cannot be appealed.

Taunya Martin v. Department of Employment Security - M1997-00184-COA-R3-CV View
Davidson County - This appeal involves a worker's attempts to obtain unemployment compensation benefits. After the Department of Employment Security's Board of Review upheld the denial of her claim, the employee filed a pro se petition for writ of certiorari in the Chancery Court for Davidson County seeking judicial review of the denial of her claim. The Department moved to dismiss the petition because the employee had failed to name all the parties required by Tenn. Code Ann. § 50-7-304(i)(1) (Supp. 1998) (superseded 1999) and failed to state a claim upon which relief could be granted. The trial court granted the Department's motion and dismissed the petition. The employee has appealed. While we concur that the employee's petition failed to name all the required parties, we have determined that dismissing the petition was not the proper remedy. We have also determined that the employee's petition states, albeit inartfully, a ground upon which relief could be granted. Accordingly, we vacate the dismissal of the employee's petition.

Smith County v. Dave Enoch - M1999-00063-COA-R3-CV View
Smith County filed this action to enjoin the maintenance of an automobile junkyard within one thousand (1,000) feet of a county road pursuant to the authority of Private Acts. The defendant admitted his violation of the Private Acts, but pleaded (1) the asserted lack of standing of the County to file the action, and (2) the asserted unconstitutionality of the Acts. The Chancellor sustained both defenses. We reverse.

Paul Rector v. Elizabeth Halliburton - M1999-02802-COA-R3-CV View
Davidson County - The residence owned by Mrs. Halliburton had no access owing to highway construction. She acquired a driveway easement from the adjoining landowner, who later sold the property to Mr. Rector. An electric service line extended across the front of Mr. Rector's property which was relocated. Mr. Rector's efforts to purchase the Halliburton property were unavailing, and he began a policy of harassment presumably to acquire the property. He claimed, inter alia, that the easement terminated because it was improperly maintained, and that NES moved the service line without his permission and hence was guilty of trespass. Mrs. Halliburton filed a counterclaim for damages, charging Mr. Rector with trespass and outrageous conduct. Mr. Rector's suit was dismissed, and the counterclaim of Mrs. Halliburton was sustained. The dismissal of Mr. Rector's suit is affirmed; the award of attorney fees to Mrs. Halliburton is reversed; the case is remanded for a determination of the damages sustained by Mrs. Halliburton, including punitive damages.

Rebecca McMurry v. Metro Government of Nashville - M2000-02902-COA-R3-CV View
Davidson County - This appeal is brought by an employee of the Metropolitan Government of Nashville and Davidson County who slipped and fell while working and, as a result, injured her knee. The employee brought suit pursuant to the Tennessee Governmental Tort Liability Act to recover damages for her lost earning capacity, pain and suffering, and expenses. Prior to this suit, Metro paid the employee's medical expenses and compensated her for the work that she missed during her recovery. The trial judge awarded the employee $24,000, finding that Metro was at fault, but that the employee's injury was merely the exacerbation of a previous knee injury. The trial court also awarded the employee $2,858.30 in discretionary costs, but disallowed a $900 charge for the trial preparation fee of the employee's expert. The employee appeals the trial court's final order. We affirm the trial court in all respects.

Mark Percy v. Dept of Correction - M2001-01629-COA-R3-CV View
Davidson County - This appeal involves a dispute between a multiple rapist and the Tennessee Department of Correction regarding the prisoner's sentence expiration date. The prisoner filed a petition for a declaratory order in the Chancery Court for Davidson County asserting that the Department had misclassified him and that he was eligible to be released because his sentence had expired. The Department responded with a motion for summary judgment supported by an affidavit of a sentencing technician asserting that the prisoner had been correctly classified and that his sentence had not expired. The trial court granted the summary judgment and dismissed the petition. We find that the trial court reached the correct result, and, therefore, we affirm the judgment dismissing the prisoner's petition.

Quentin Cavnar v. State - M2002-00609-COA-R3-CV View
This appeal involves the diagnosis and treatment of a person who was briefly hospitalized at Middle Tennessee Mental Health Institute. Following his release, the patient filed a claim with the Tennessee Claims Commission asserting that he had been misdiagnosed and that the staff had subjected him to mental abuse and torture. The Commission dismissed the patient's complaint after he failed to file a timely response to the State's Tenn. R. Civ. P. 12.02(6) motion to dismiss, and the patient has appealed. We have determined that the Commission properly dismissed the patient's claim, not only because of his tardy response but also because the response fails to state a claim upon which the Commission may grant relief.

Thomas Dougherty v. Joyce Parry - M2002-00757-COA-R3-CV View
Sumner County - A divorced father petitioned the court to transfer custody of his two children from his former wife to himself. The trial court dismissed the petition, finding that the father had not met the threshold requirement for change of custody by proving a material change of circumstances. We find that there has been such a change of circumstances, and we remand this case to the trial court with instructions to determine the best interest of the children.

Michael Harrington v. Grant Smith - M2002-00840-COA-R3-CV View
Davidson County - Defendant appeals a grant of summary judgment against him on a promissory note and an additional judgment against him for breach of contract. We affirm the action of the trial court.

Elizabeth Whitaker vs. Lawson Whitaker - E2002-00847-COA-R3-CV View
Hamilton County - In this post-divorce case, Lawson S. Whitaker, III ("Father") filed a complaint against Elizabeth Donahue Whitaker ("Mother"), seeking to hold her in contempt of court for depriving him of visitation privileges and parenting time with the parties' minor daughter, Grace Anne Whitaker (DOB: September 6, 1996) ("the child"). In response, Mother filed, inter alia, a counterclaim for contempt and for modification of the parties' Parenting Plan. The trial court found a substantial and material change in circumstances justifying a modification of the Parenting Plan. In addition, the trial court held Father in contempt due to his failure to follow the court's prior orders and for harassing Mother. Father appeals both the modification and the court's finding of contempt. Mother seeks attorney's fees for this appeal. We affirm and remand to the trial court for that court to set attorney's fees for Mother in connection with this appeal.

Teresa Malone vs. Shane Maddox - E2002-01403-COA-R3-CV View
Hamilton County - This case focuses on an insurance company's liability under the uninsured motorist ("UM") provisions of an automobile insurance policy. It arises out of an automobile accident involving Teresa Malone ("the policyholder") and Shane Maddox ("the uninsured motorist"). The policyholder appeals the trial court's judgment decreeing that the policyholder's uninsured motorist carrier, Harleysville Mutual Insurance Company ("the UM carrier"), cannot be held liable for prejudgment interest under the facts of this case because such an award would cause the total judgment against the UM carrier to exceed the UM coverage limit in the policy. We affirm.

James Glover vs. Tetyana Glover - E2002-01690-COA-R3-CV View
Hamblen County - The trial court entered a judgment granting the complaint for annulment filed by James Eugene Glover ("Husband"). Within 30 days of the entry of the judgment, Tetyana Glover ("Wife") filed a motion seeking to set aside the judgment. She claims that she did not have prior notice that the complaint was to be considered on June 19, 2002, the date on which the record reflects this case was heard. The trial court, finding that it lacked jurisdiction to consider Wife's motion, denied her request to set aside the judgment. Wife appeals. We vacate the trial court's order refusing to consider Wife's motion and remand this matter to the trial court for consideration of the motion.

Edward Howell vs. NHC Healthcare - E2002-01321-COA-R3-CV View
Knox County - The Trial Court refused to enforce an Agreement for Mediation and Arbitration. On appeal, we Affirm.

Henry Watson vs. L.B. Ball - E2002-00072-COA-R3-CV View
Polk County - A Chancery Court judgment was entered in 1980, providing Henry Watson and Evelyne Watson ("the Watsons") an easement across land currently owned by L.B. Ball and Wilma Rose Ball ("the Balls"). The judgment held the Watsons had acquired an easement "for the purpose of providing ingress and egress for farm equipment only and for no other purpose." The Watsons did not use the easement or take any steps to prepare it for use for nearly twenty years. In 1999, the Watsons began construction of a road within the easement. Joe Browder and Gail Browder ("the Browders"), owners of adjoining property, placed a gate across the easement. The Watsons sued for injunctive relief. Trial was held and an order was entered on May 14, 2001, holding, inter alia, the easement had not been abandoned and that the Balls were not entitled to damages for destruction of trees within the easement. In response to the Balls' motion for additional findings of fact, an order was entered on November 13, 2001, that provided a definition of "farm equipment." The Balls appeal. We affirm.

Brenda Buchanan vs. Berkley Buchanan - E2002-00915-COA-R3-CV View
Knox County - This is a divorce case. Both parties sought a divorce. Brenda Watson Buchanan ("Wife") was granted an absolute divorce from Berkley Ottie Buchanan ("Husband") on the ground of inappropriate marital conduct. In its judgment, the trial court decreed, among other things, that Wife was to be paid alimony in the amount of $750 per month for 24 months; costs of $579.70; and attorney's fees of $1,850. Husband appeals contending that the trial court erred in making all of these decrees. We affirm.

In matter of: S.Y., J.Y., and D.Y. - W2002-00593-COA-R3-JV View
Shelby County - Department of Children's Services filed petition to terminate parental rights of mother of dependent and neglected minor children. Department's termination petition was based on allegations of abandonment, mother's failure to substantially comply with a permanency plan, and the removal of the children for at least six months with little likelihood that the condition causing removal will be remedied. Juvenile Court granted petition terminating mother's parental rights. Mother appeals, asserting that juvenile court violated her due process rights by failing to appoint an attorney for the dependent and neglect proceeding, and erred in concluding that clear and convincing evidence exists to support findings that warrant termination of parental rights. We affirm.

James Jordan Jr. vs. Kelly Jordan - W2002-00854-COA-R3-CV View
Shelby County - This case involves the enrollment of a foreign divorce decree, enforcement of the child support obligation therein, and the modification of the visitation privileges set out in the decree. The trial court enrolled the foreign decree, entered judgment for arrearages and child support, and amended the enrolled judgment as to the visitation privileges for Father. Father appeals. We affirm.

Michael Higgins vs. Sheriff A.C.Gilles Jr. - W2001-02829-COA-R3-CV View
Shelby County - Petitioner, off-duty deputy sheriff, was arrested during bust of known drug house for possession of drug paraphernalia. Upon deputy sheriff's arrest, Internal Affairs twice ordered petitioner to submit to drug test. At time of requests, petitioner did not have assistance of counsel; however, two Sheriff's Association representatives were present and available for consultation. Petitioner refused both orders, but on third day following arrest, after consulting with an attorney, voluntarily requested drug test. Department refused request, and subsequently charged petitioner with insubordination, possession and use of illegal drugs, and conduct unbecoming an officer. After hearing before the Deputy Chief, petitioner was terminated. Civil Service Merit Board upheld termination, and petitioner filed common law writ of certiorari with chancery court. Chancery court affirmed the Civil Service Merit Board. We affirm.

A.I.J.J. Inc. vs. Norman Weizer - W2002-00975-COA-R3-CV View
Shelby County - This dispute regards a contractual obligation of an employee to repay recruitment costs incurred by his employer should he leave his position within a two year period. The trial court applied Florida law to the dispute and awarded judgment to the employer. We hold the contract is governed by New York law. We further find the provision was not applicable where the employee was terminated and reverse the judgment.

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Cases posted the week of 02/17/2003
Precision Electric vs. State - E2002-01340-COA-R3-CV View
This litigation arises out of an accident involving a truck owned by Precision Electric Company, Inc. ("the Claimant") and a vehicle owned by the State of Tennessee ("the State"). The Claimant filed a claim against the State with the Tennessee Claims Commission, seeking compensatory damages of $19,845 for, inter alia, the diminution in value of the Claimant's vehicle and a loss of net profits. The case was tried before an Administrative Law Judge ("the ALJ"). The ALJ awarded the Claimant $2,217 for a wrecker bill and certain interest charges, but declined to award the remaining elements of damages sought, finding that the Claimant had failed to carry its burden of proof with respect to these latter damages. On appeal, the Claimant argues that the ALJ erred in refusing to award the full amount of damages sought by it. We affirm.

Amy Butler v. Michael Butler - M2002-00347-COA-R3-CV View
Davidson County - The mother of a minor child, as custodial parent, appeals the action of the trial court in denying her application to relocate with the child from the Nashville area to the Dallas-Ft. Worth, Texas area pursuant to Tennessee Code Annotated section 36-6-108(d). We affirm the action of the trial court.

In the Matter of: CAF - M2002-00516-COA-R3-JV View
Putnam County - The trial court terminated the parental rights of the mother and the biological father of a three-year-old girl. It ruled, however, that there were no legal grounds to terminate the parental rights of another man who had signed a voluntary acknowledgment of paternity, but who admitted that he was not the actual father. We affirm the trial court's actions as to the child's biological mother and father, but reverse as to the other respondent.

In the Matter of: D.M. & M.M. - M2002-01317-COA-R3-JV View
Dickson County - The Juvenile Court terminated the parental rights of the mother of two small children. We reverse, because we do not believe the State has proven the grounds for termination by clear and convincing evidence, or that it is in the children's best interest to have their mother's rights terminated.

Pigeon Forge vs. William Loveday - E2002-00643-COA-R3-CV View
Sevier County - Landowner seeks a new trial in eminent domain case on grounds that the Trial Court admitted in evidence the price paid for the land 19 years earlier. We reverse the Trial Court's Judgment.

Nancy Martin vs. Charles Martin - E2001-01569-COA-R3-CV View
Sevier County - Charles Howard Martin appeals a judgment of the Trial Court which awarded Nancy Barnard Martin a divorce and certain other relief. We affirm.

Cinderella Osborne vs. Mountain Life Ins. - E2002-01023-COA-R3-CV View
Hawkins County - This appeal raises a question of coverage under a policy of credit life insurance. The Plaintiff, Cinderella Ferrell Osborne, brought this action against Mountain Life Insurance Company ("Mountain Life"), alleging that it wrongfully denied her claim under a credit life insurance policy on the life of her deceased husband, Kenneth Scott Osborne. The Trial Court granted Mountain Life's motion for summary judgment, finding that Mr. Osborne died within six months after the effective date of coverage, from a disease for which he received medical treatment within six months of the effective date of the insurance. The Court held that these facts triggered a limitation of liability provision in the policy, which limited Ms. Osborne's recovery to the premium paid. We reverse the judgment of the Trial Court.

Bellsouth BSE v. Tennessee Reg. Authority - M2000-00868-COA-R12-CV View
BellSouth BSE, Inc. appeals from an order of the Tennessee Regulatory Authority denying BSE's application for certification as a competing local exchange company in those areas where BSE's affiliate, BellSouth Telecommunications, is the incumbent provider of local services. Because the TRA denied the petition on the basis that such certification may be inconsistent with the goal of fostering competition and could be potentially adverse to competition, as opposed to establishing conditions or requirements designed to ensure that anticompetitive practices did not occur, we vacate the order as beyond the agency's statutory authority.

Dorothy Files v. Bobby Files - M2002-00132-COA-R3-CV View
Rutherford County - This case was presented to the Trial Court upon Petition to Domesticate a Foreign Decree, to Modify and to Increase Child Support and Amended Petition to Domesticate a Foreign Decree, to Modify Custody, for Contempt, and to Increase Child Support. The Trial Court granted defendant's Tennessee Rules of Civil Procedure No. 12.02 Motion to Dismiss finding that in this case according to Tennessee Code Annotated § 36-5-2611 that Tennessee lacked subject matter jurisdiction to modify child support and that pursuant to Tennessee Code Annotated 36-5-218 Tennessee had not subject matter jurisdiction to modify the child custody and visitation provision of the Missouri decree. We affirm.

Frank Fly v. Simple Pleasures - M2002-01385-COA-R3-CV View
Rutherford County - Landlord appeals an Order granting summary judgment to Tenant on the effect of a holdover tenancy after the expiration of the term of the lease. We affirm the judgment of the trial court.

Jennifer Norman v. Steven Norman - M2001-01281-COA-R3-CV View
Davidson County - This appeal is the culmination of a lengthy and bitter child support battle. When the parties were divorced in 1994 by the Law Court for Washington County, the wife was awarded custody of their child, and the husband was required to pay child support. The court also approved the parties' marital dissolution agreement that, among other things, provided for annual child support adjustments and obligated the husband to provide the wife with a copy of his annual federal income tax return. The case was transferred to the Circuit Court for Davidson County after the wife and child moved to Nashville. In November 1999, the mother requested the trial court to increase child support and to hold the husband in contempt for failing to provide her copies of his tax returns. Following a bench trial, the trial court not only increased the child support prospectively but also awarded the wife $19,026 in retroactive child support back to 1996. The husband asserts on this appeal that the trial court erred by awarding retroactive child support. We have determined that the trial court did not err by awarding child support back to 1996 because the wife had filed a motion to modify child support in 1996 that had never been acted upon. Accordingly, we affirm the judgment.

State et rel. Kathy Jones v. Timothy Spivey - M2002-00610-COA-R3-JV View
Warren County - This appeal concerns an action by the state seeking enforcement of certain support orders in the juvenile court pursuant to Title IV-D of the Social Security Act, 42 U.S.C. §§ 651 et seq. The State of Tennessee, ex rel. Kathy E. Jones sought an order from the Warren County Juvenile Court requiring the payment of $7,195 in child support and finding Timothy Spivey in contempt of said court for the failure to pay the child support arrearage. From the order of the trial court forgiving all but $864.85 of the child support arrearage and refusing to find Spivey in contempt, the state appeals.

Penny Taylor v. Christy Sowell - M2002-00535-COA-R3-JV View
Davidson County - Christy Sowell appeals an Order terminating her parental rights as to her child, S.P.S. The trial court, finding abandonment by willful failure to support and willful failure to visit the minor child, entered an Order terminating her parental rights. We affirm the action of the trial court.

Stella Keltner vs. Open Lake Sporting Club - W2002-00449-COA-R3-CV View
Lauderdale County - This is a dispute over ownership of the Right Hand Arm portion of Open Lake. The trial court awarded summary judgment to Open Lake Sporting Club. Having determined that there are genuine issues of material facts, we reverse and remand for further proceedings.

Christopher Robinson vs. William Fulliton - W2001-01753-COA-R3-CV View
Shelby County - This is a wiretapping case. A husband and a wife were experiencing marital difficulties. During that time, the husband tape recorded a telephone conversation between his wife and her brother without the knowledge of either. When the brother found out, he filed a lawsuit against the husband, his brother-in-law, seeking damages under the civil damages provision of the Tennessee wiretapping statutes, Tenn. Code Ann. § 39-13-603. The trial court, sitting without a jury, held that the husband was liable to his brother-in-law, and awarded nominal compensatory damages, litigation expenses, and attorney's fees. The husband and the brother-in-law both appeal that decision, arguing that the damage award was erroneous. We reverse the trial court's award of damages, finding that the statute requires that, when a violation is established, the trial court must award either the actual damages or the statutory minimum penalty of $10,000, whichever is greater.

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Cases posted the week of 02/10/2003
Department of Children's Services vs. F.E.B. - E2001-00942-COA-R3-JV View
This appeal from the Knox County Juvenile Court questions whether the Juvenile Court erred in terminating the parental rights of the Appellant, F.E B., with respect to his child, R.B., upon petition of the Appellee, State of Tennessee Department of Children's Services. We affirm the judgment of the Juvenile Court and remand for collection of costs.

Andrew Downs vs. Crystal Bailey/Joni Downs - W2002-01362-COA-R3-JV View
Tipton County - This is a child custody case. The two children involved were born to the mother and father during their marriage. In 1998, the mother and father were unable to care properly for the children, so the mother's sister (the children's aunt) obtained temporary custody. The mother and father divorced in 1999. In 2000, the father filed a petition for custody, claiming that he and his common-law wife could provide a stable home for the children. The aunt sought to retain custody. The mother intervened, arguing that, if permanent custody were not granted to the aunt, then custody should be awarded to her. After a hearing, the trial court granted custody to the father. The mother and the aunt appeal, both claiming that they are entitled to custody. We affirm, finding that the father's rights are superior to those of the aunt, and that the trial court did not err awarding custody to the father rather than the mother.

Ronald Crafton vs. John Van den Bosch Jr. - W2002-00679-COA-R3-CV View
Madison County - The appellant, an attorney, was sued by his client for legal malpractice for failure to file a motion for post-conviction relief in a criminal matter. Appellant's Motion for Summary Judgment was denied and he appeals. We affirm.

Hal Gerber vs. Virginia Segal - W2001-01709-COA-R3-CV View
Hal Gerber vs. Virginia Segal - W2001-01709-COA-R3-CV (Dissent) View
Shelby County - This case addresses a fee dispute between an attorney and his client. The trial court granted the attorney summary judgment as to the reasonableness of his fee. We reverse the grant of summary judgment, and likewise the final judgment, as both were the direct result of an erroneous application of the doctrine of judicial estoppel.

Charles Leatherwood vs. Joseph Wadley - W2002-01994-COA-R3-CV View
Henderson County - Plaintiff spectator/invitee was struck and injured by wheel that broke and caromed from defendant driver's racing vehicle during a stock car race at defendant-owner's motor speedway. Plaintiff brought claims against defendants alleging negligence, gross negligence, and strict liability for failure to exercise the required degree of care in the operation of, or participation in, an ultrahazardous activity, and included an additional action against defendant-driver seeking recovery on strict liability grounds under the Tennessee Products Liability Act. Wife of spectator joined in suit against defendants, seeking recovery for loss of consortium. The circuit court granted defendants' individual summary judgment motions. We affirm.

Wanda F. Cherry, et al vs. First State Bank - E2002-00981-COA-R3-CV View
Sevier County - Wanda F. Cherry and Daniel R. Greene ("Plaintiffs") are the owners of property located on the parkway in Pigeon Forge. Wayne Burroughs ("Burroughs") owned property adjacent to the Plaintiffs' property, but Burroughs' property did not adjoin the parkway. Burroughs leased Plaintiff's property and used their property and his property to operate a business. During this time, Burroughs borrowed money from First State Bank ("Defendant"). Burroughs' leasehold interest in Plaintiffs' property was part of the collateral for this loan. After Burroughs filed for bankruptcy, his leasehold interest in Plaintiffs' property was sold at auction. Defendant was the highest bidder at the auction. Defendant paid rent for a period of time, but then stopped paying rent. Plaintiffs sued for past due rent. The Trial Court granted summary judgment to Plaintiffs and awarded damages totaling $127,968.60. Defendant appeals the grant of summary judgment to Plaintiffs. We affirm.

In the Matter of: A.W. & J.W. - M2002-01665-COA-R3-JV View
Wilson County - The Juvenile Court of Wilson County terminated the parental rights of both parents to two young daughters. The mother appeals, asserting that the court erred in finding: (1) that the Department of Children's Services made reasonable efforts to reunite the family, (2) that she failed to substantially comply with the goals in the permanency plans, (3) that she failed to remedy the conditions that prevented the children's return to her, and (4) that the best interests of the children required the termination of her parental rights. We affirm the judgment of the juvenile court.

In the Matter of: Conservatorship of Ellen Groves - M2000-00782-COA-R3-CV View
Montgomery County - This appeal involves the conservatorship of an elderly widow. Both the widow's brother-in-law and a niece filed petitions in the Chancery Court for Montgomery County requesting to be appointed her conservator. Following a bench trial, the trial court determined that the widow was "competent" and, therefore, dismissed both conservatorship petitions. The trial court also disapproved the brother-in-law's accounting of his expenditures on the widow's behalf and directed the brother-in-law and his wife to return the widow's real and personal property to her. On this appeal, the widow's brother-in-law asserts that the trial court erred (1) by refusing to appoint him conservator, (2) by refusing to approve reimbursing him for his expenses in caring for his sister-in-law, and (3) by directing him to return his sister-in-law's real and personal property. We have determined that the evidence preponderates against the trial court's conclusions that the widow is not disabled and that she does not need a conservator. However, we have also determined that the trial court properly declined to reimburse the widow's brother-in-law for his expenses in caring for her and properly ordered him to return her real and personal property.

Jenny Parrott v. John Abraham - M2001-02938-COA-R3-JV View
Montgomery County - Appellant/Father appeals dismissal of his petition seeking to be named residential custodian of his minor child. The trial court found that Tennessee was not the "home" state of the child under Tennessee Code Annotated section 36-6-216 and dismissed the case for lack of subject matter jurisdiction. We reverse.

Denise Ashworth vs. Greene County - E2002-00500-COA-R3-CV View
Denise Ashworth, the proprietress of a bed and breakfast in Greene County, filed a declaratory judgment action challenging the constitutionality of a hotel/motel privilege tax authorized by private act of the General Assembly ("the Act") and approved by the Greene County Commission. Among other relief, she seeks the return of approximately $3,000 in taxes collected by her from patrons and paid by her under protest to Greene County. While her suit was pending, the trial court permitted an individual who had stayed one night at a local motel to intervene in this case. The gravamen of his complaint was the same as that of Ashworth's. The trial court granted the defendants summary judgment as to Ashworth's claim, finding that she was not the taxpayer under the Act and, consequently, did not have standing to pursue her claim. As to the intervenor's claim, the trial court held that the Act was unconstitutional and ordered that he be refunded the sum of $1.61, the amount of the tax that he had paid under protest, plus interest. Only Ashworth appeals. She contends that the traditional concept of standing should be broadened to permit her to pursue her claim. We affirm the judgment of the trial court.

John Garland vs. Tonia Garland - E2002-00949-COA-R3-CV View
Rhea County - In this divorce action, the wife appeals the alimony award and amount of attorney's fees awarded to her. On appeal, we Affirm as Modified.

Promus Hotels vs. Martin, Cole, Dando, Robertson - W2002-01028-COA-R3-CV View
Shelby County -This is an appeal from an Order denying Appellant's Motion to Compel Arbitration. Appellant filed a third-party claim against its subcontractor, Appellee, for indemnity. The Subcontract between the parties contained an agreement to arbitrate. Appellant contends that the agreement binds Appellee to arbitrate the matter. Appellee contends that it is not bound to arbitrate due to an exception in the Subcontract. We affirm and remand.

James Clark vs. Jim Rose - W2002-01245-COA-R3-CV View
Lauderdale County - This case involves a prisoner's allegations that correctional personnel failed to follow internal policies and procedures concerning administrative segregation of prisoners, thus denying him his due process rights. As we are unable to determine from the record if Appellant's continued presence in administrative segregation is actually non-punitive in nature, we reverse the trial court's dismissal of Appellant's petition.

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Cases posted the week of 02/03/2003
Jackie Wright & Kimberly Green vs. Azalea Rains - E2002-01107-COA-R3-CV View
Loudon County - Cager M. Casey ("Deceased") executed a revocable inter vivos trust agreement in July of 1992. The trust named a number of family members and friends as beneficiaries ("Appellees"). In January of 1999, Deceased executed a will. While this will does not specifically reference the trust, it does direct Deceased's PaineWebber stock be sold at his death and the proceeds given to Jackie L. Wright, Kimberly A. Green ("Appellants") and other members of the Wright family. Deceased owned no stock in PaineWebber. However, the trust was administered by UBS PaineWebber, Inc. ("PaineWebber"). Appellants submitted the 1999 will for probate and were granted letters testamentary. PaineWebber refused to turn over the trust investments absent court order. Appellants sued Appellees and PaineWebber. After trial, the Probate Court entered its judgment on November 29, 2001, holding the 1999 will did not alter the trust and the trust would, by its terms, distribute the trust assets to the trust beneficiaries. Appellants appeal the November 29, 2001 judgment. We affirm.

Margarette Adair v. Vincent Scalf d/b/a V & T Topsoil - M2001-00677-COA-R3-CV View
Davidson County - This is an action to abate a temporary nuisance of dust and noise attributable to the removal, processing and sale of topsoil ostensibly incidental to the development of real property owned by the defendant Scalf adjacent to the residence of the plaintiff, and for damages. A declaratory judgment against the Metro Government that it failed to enforce its zoning regulations was denied. Metro Government cross-claimed for declaratory relief that Mr. Scalf's removal, processing and sale of topsoil on residential property was forbidden by Ordinance. This relief was granted. The judgment, as modified, is affirmed.

Michael Cantrell v. Walker Die Casting - M2001-00693-COA-R3-CV View
Marshall County - This case involves a denial of medical benefits for injuries sustained in an automobile accident. The Appellee was covered under an employee benefit plan which falls within the purview of the Employee Retirement Income Security Act of 1974 (ERISA). The trial court granted summary judgment for the Appellee as to the Appellant's liability for payment of the expenses resulting from the accident. We reverse the decision of the trial court, finding Appellee's failure to exhaust his administrative remedies prior to filing suit fatal to his cause.

Eilene Copenhagen v. Roger Copenhagen - M2002-00217-COA-R3-CV View
Davidson County - Appellant, former wife of Appellee, filed a Petition seeking to convert alleged rehabilitative alimony into permanent alimony in futuro and requesting certain other relief, including all accrued and vested benefits in her former husband's retirement plan. The trial court dismissed the Petition in its entirety holding the alimony previously awarded to be alimony in solido. We reverse the finding as to the character of the alimony previously awarded and affirm as to all other relief sought. The case is remanded to the trial court for further proceedings.

Charles Garrison v. James Stamps - M2001-02900-COA-R3-CV View
Wilson County - Charles Garrison and James C. Stamps were involved in an automobile accident on October 10, 1998 wherein Garrison was seriously injured. Stamps was uninsured, and Garrison was beneficiary of uninsured motorists coverage under policies of insurance issued to his parents. With no suit ever filed against Stamps, Garrison and his parents reached an agreement with the uninsured motorists carriers whereby the carriers paid the limits of their uninsured motorists coverage. Charles Garrison being a minor, a Petition for court approval of the settlement was filed naming Stamps as the defendant, and an Order was entered approving the settlement. Garrison then filed suit against Stamps, which suit was met with a Summary Judgment Motion by Stamps claiming that he was released from liability by the settlement Order. Garrison filed a Tennessee Rule of Civil Procedure 60.02 Motion seeking to have the settlement Order revised to reflect the true facts of the settlement. This Motion was granted, and Stamps appeals. We hold that Stamps is without standing to assert any rights under the settlement Order and, on this basis, affirm the judgment.

Insura Property & Casualty Ins. v. Terry Ashe - M2002-00374-COA-R3-CV View
Wilson County - This is a declaratory judgment action wherein Plaintiff insurance company seeks a declaration as to coverage under its commercial general liability insurance policy issued to Lineberry Properties, Inc. Defendant, Dewey Lineberry, and his wholly owned corporate entities, Defendants Lineberry Properties, Inc. and Lawdog Communications, LLC, sought defense and indemnity from Plaintiff insurance company relative to a defamation, libel, slander, and outrageous conduct complaint previously filed against them in the Circuit Court for Wilson County, Tennessee by Defendants, Terry and Judy Ashe. The trial court granted summary judgment to the insurance company holding that the general commercial liability policy provided no coverage as to the underlying action. We affirm the trial court.

Donna Mancuso-Bertone v. Michael Braswell - M2002-00025-COA-R3-CV View
Wilson County - The mother of a fourteen year old male child appeals the action of the trial judge in denying her Petition for a change of custody. The trial court found that no material change of circumstances had been established by the evidence that would justify change of custody. We affirm the action of the trial court.

Alison Rinner v. Robert Rinner - M2001-02307-COA-R3-CV View
Davidson County - This is a divorce case. The father and mother were both forty-one years old and had a six-year-old daughter. The trial court ordered the father to pay rehabilitative alimony, child support, and a portion of the mother's attorney's fees. On appeal, the father argues that the trial court improperly considered bonus money the father had received, that it erred in not ordering that child support on income in excess of $10,000 be placed in trust, that it erred in ordering him to pay rehabilitative alimony and a portion of the mother's attorney's fees, and also erred in failing to assign tax liability regarding certain stock options. We affirm the trial court's calculation of child support, the decision not to pay a portion of the child support into a trust, the order to pay rehabilitative alimony and a portion of the mother's attorney's fees, and find that the trial court was not required to assign tax liability as to the stock options.

Sylvester Young v. Nashville & Davidson County - M2000-02455-COA-R3-CV View
A prisoner allegedly slipped and fell on a wet floor in the Davidson County Jail, injuring his back. He brought suit against the Metropolitan Government of Nashville and Davidson County for deprivation of civil rights and negligence. The Chancery Court dismissed his civil rights claim on a Rule 12.02(6) motion, and transferred the negligence claim to Circuit Court. After a bench trial, the Circuit Court dismissed the negligence claim. We affirm.

Sandra Elmore vs. Greg Cruz - E2001-03136-COA-R3-CV View
Hamilton County - In this case the Appellant/Defendant, City of Chattanooga, appeals the judgment of the Circuit Court for Hamilton County awarding the Appellee/Plaintiff, Sandra Yvonne Elmore, compensatory damages for injuries sustained as a result of her arrest and imprisonment by the Chattanooga Police Department. We vacate the judgment of the Trial Court and remand.

Nancy Webber vs. Gary Webber - E2002-01355-COA-R3-CV View
Anderson County - The Trial Court held it had jurisdiction over marital property and alimony. Husband argued since the divorce was granted in Nevada, the Nevada Decree was res judicata on these issues. We affirm.

Frances Jones ex rel. Nell Hampton vs. LaFollette Nursing Home - E2002-01183-COA-R3-CV View
Campbell County - Frances B. Jones, on behalf of her mother, Nell Hampton, sues LaFollette Nursing Home, alleging Ms. Hampton was entitled to damages for improper care given to her while a resident patient there. The Trial Court granted a summary judgment in favor of the Nursing Home upon finding that Ms. Hampton's claim was barred by the applicable statutes of limitations and that she introduced no proof to rebut the Nursing Home's proof that they met the appropriate standard of care in ministering to Ms. Hampton. We dismiss the appeal.

In Re: Estate of Adam Burress - E2002-00320-COA-R3-CV View
Scott County - This appeal involves several issues regarding the disposition of certain assets of and relating to the estate of Adam James Burress ("Decedent"), who died intestate in a one-car accident on March 5, 2001. The Trial Court imposed an equitable lien on the insurance proceeds of an automobile collision policy in favor of Eva Burress, the Decedent's grandmother, in the amount which the Court found she loaned to Decedent in order to purchase the automobile, which was totally destroyed in the accident. The Appellant, Sue Michelle Burress ("Widow"), Decedent's wife, argues on appeal that the Trial Court erred in failing to award her the insurance proceeds, and in ruling that payment of the funeral expenses should take precedence over the spousal support allowances and all other claims. The Appellees, Roy and Eva Burress, Decedent's grandparents, and Jeff and Linda Burress, Decedent's parents, have appealed the Court's ruling that the mobile home in which Decedent and Widow lived prior to their separation was not permanently affixed to the grandparents' land and thus was the Widow's personal property. We modify the judgment so as to provide that the Widow's statutory year's support allowance is exempt from claim against the estate for reimbursement of funeral expenses. We affirm the judgment of the Trial Court in all other respects.

LaFollette Medical vs. The City of LaFollette - E2001-02902-COA-R3-CV View
Campbell County - This is a suit initiated by LaFollette Medical Center and its Board of Trustees against the City of LaFollette, seeking to prohibit the sale of LaFollette Medical Center without a consent of the Board of Trustees. The Trial Court, in a preliminary ruling, held that the City did have authority to sell the facility, but that the proceeds of the sale would be held in trust to be used for one of the original purposes for which the Hospital was built–to render indigent health care. We affirm.

Joe H. Parks v. George Eslinger - M1999-02027-COA-R3-CV View
Maury County - This second appeal in this dispute involves the trial court's modifications of a special master's report regarding the liabilities of the parties after the dissolution of their partnership. The special master reported that one partner, Mr. Eslinger, owed the other partner, Mr. Parks, $10,051.30. Mr. Parks objected, and the trial court modified the special master's report, awarding Mr. Parks an additional $45,427.04, and ordered that Mr. Eslinger pay the costs of the special master. Mr. Eslinger now appeals the trial court's modifications and award of costs. Because the record does not support the trial court's modifications, we reverse and reinstate the master's findings as amended. We modify the award of the costs of the special master.

Arthur Stigall v. Bronson M. Lyle - M2001-00803-COA-R3-CV View
Houston County - The plaintiff filed this action in the Chancery Court of Houston County seeking to quiet title to a parcel of property located there. The court granted the defendants' Tenn. R. Civ. P. 12.02 motion to dismiss the plaintiff's complaint, and imposed sanctions pursuant to Tenn. R. Civ. P. 11. Although the appellant raises legitimate issues as to the grounds cited for dismissing the complaint, we nevertheless affirm, finding that the complaint conclusively shows that the plaintiff has no colorable title to the subject property.

Boyd Stinson v. Brenda Sue Bobo - M2001-02704-COA-R3-CV View
Williamson County - This appeal involves a conflict between n