Court of Appeals Opinions - 2^nd Quarter 2001

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

---

Cases posted the week of 06/25/2001
In Re: Adoption of J.R.W. - E2000-01335-COA-R3-CV View
R.J.W. ("the Wife of the Adopter") instituted this action against her sister-in-law, K.D.W., seeking to set aside the adoption of K.D.W.'s natural son, J.R.W., by the plaintiff's late husband, M.W. ("the Adopter"), some eleven years earlier. The trial court dismissed the petition. We affirm.

Loreta MCCollum, et al vs. James Connatser - E2000-02561-COA-R3-CV View
On May 9, 1997, Alleen C. McCroskey ("the decedent") passed away, leaving two children, Loretta C. McCollum and James W. Connatser, Jr. McCollum, individually and as administratrix of the decedent's estate, filed suit against her brother, claiming that Connatser, as a result of undue influence on the decedent and/or conversion, wrongfully obtained monies that now rightfully belong to the decedent's estate. The trial court granted Connatser summary judgment, and McCollum appealed. We vacate the grant of summary judgment and remand for further proceedings.

Berta Lee vs. Daniel Lee - W2000-01918-COA-R3-CV View
This is a divorce case in which wife/mother was awarded custody of the parties' only minor son. Husband/father, acting pro se, appeals the trial court's decision with regard to the award of custody, the division of a retirement account, and attorney fees. We affirm.

Denise Leach vs. Jack Leach - W2000-00935-COA-R3-CV View
This is a post-divorce dispute over the mother's desire to relocate with the parties' two minor children. The mother sought to relocate after receiving a job offer in South Carolina, contending that the move was for career advancement. The father opposed the relocation, arguing that the real reason for the move was vindictive or to interfere with his visitation rights. The father also sought to reduce child support. The trial court found that the reasonable purpose for the mother's move was career advancement and allowed relocation. It ordered the father to pay a portion of the children's travel expenses, denied the petition to reduce child support, and ordered the father to pay a portion of the mother's attorney's fees. The father now appeals. We affirm in part and modify in part.

Elizabeth Cates vs. Herbert Cates - W1999-02359-COA-R3-CV View
This is a divorce dispute. Prior to divorce, the wife left the marital home, taking some of the parties' joint cash savings. On the day of the divorce hearing, the husband stipulated as to his inappropriate marital conduct, and the divorce was granted to the wife on that ground. The wife was awarded approximately 51% of the marital estate, rehabilitative alimony, and attorney's fees. The trial court excluded from its division of marital property the money the wife took when she moved out. The husband appeals. We affirm.

Billy McKinnie vs. CCA - W2000-02006-COA-R3-CV View
Inmate brought action against defendants pursuant to 42 U.S.C. § 1983, alleging violations of his First Amendment right to access to the courts, his Fourth Amendment right to freedom from unreasonable searches and seizures, violations of Article I, sections 7 and 32 of the Constitution of Tennessee, as well as state law claims for intentional infliction of emotional distress, harassment, battery, and breach of contract. Defendants filed a Tennessee Rules of Civil Procedure Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted. The trial court granted the motion to dismiss. We affirm.

Darrell Smith vs. Chattanooga Medical Investors, Inc. d/b/a Life Care Center Chattanooga - E2000-01352-COA-R3-CV View
Plaintiff's action for breach of contract for nursing home services was dismissed by the Trial Judge on Summary Judgment. On appeal, we hold plaintiff was third party beneficiary on contracts between the State of Tennessee and defendant.

Joanne Lett vs. Collis Foods, Inc., et al - E2000-02776-COA-R3-CV View
This case presents the question of whether, under the facts presented here, the defendant employer owed a duty to a third person to prevent an intoxicated employee from leaving work and driving home. The employee, Lynda Mills, was intoxicated when she reported for her shift of work at the Waffle House. Her employer – sued as Collis Foods, Inc. and Waffle House, Inc. (collectively referred to herein as "Collis Foods") – attempted, without success, to sober up Mills. Collis Foods' manager then ordered an assistant manager to clock Mills out, which was done. Mills refused an offer of a ride home and drove herself. On the way home, she collided with the plaintiff, JoAnne Lett, seriously injuring her. Lett filed suit against Mills and later amended her complaint to add Collis Foods as a party defendant. The trial court granted Collis Foods summary judgment. Lett appeals, asserting that Collis Foods owed her a duty of reasonable care. We affirm.

Johnson City, TN vs. Steven Taylor & Elease Taylor - E2000-02491-COA-R3-CV View
In this condemnation action, defendants attempted to appeal during pendency of the action in the Trial Court. This Court determined there was no basis to treat the issue as either an interlocutory appeal or extraordinary appeal, and dismissed appeal.

Tonya Sexton vs. Hartco Flooring Co. - E2000-02489-COA-R3-CV View
The Trial Court granted defendant summary judgment on plaintiff's claims of sexual harassment and retaliatory discharge from employment. On appeal, we affirm judgment on the sexual harassment claim, but vacate and remand on claim of retaliatory discharge.

Hopewell Baptist Church vs. Southeast Window Mfg. Co., et al - E2000-02699-COA-R3-CV View
Hopewell Baptist Church brought suit against defendant Southeast Window Mfg. LLC., alleging that it was a successor corporation and liable under a contractual warranty given by its predecessor. The Trial Court ruled that the defendant was a successor corporation and had expressly or impliedly assumed the obligations under its predecessor's warranty through the acts of its agent. We reverse.

---

Cases posted the week of 06/18/2001
Harry M. Pack vs. Tina Lewin Ponak - M2000-02285-COA-R3-CV View
The Lincoln County Circuit Court granted the appellee's motion for summary judgment allowing the sale of real property held as joint tenants with the right of survivorship. We find, however, that whether there is an agreement not to partition the property is a disputed question of fact. We reverse the trial court and remand for further proceedings in accordance with this opinion.

Terry Howard vs. Jack Morgan, et al - M2000-00548-COA-R3-CV View
In this case, a prisoner appeals from dismissal of his lawsuit on the basis that the allegation of poverty in his affidavit of indigency was false. Because the record includes a certified copy of the prisoner's trust account statement showing a balance from $1,100 to over $1,200, we affirm.

Audie Lowe, et al vs. Bill Goad, et al - E2000-02056-COA-R3-CV View
Audie Lowe, Hilda Lowe, and Sheilda Mills ("Plaintiffs") brought this boundary line suit against members of their family, Bill Goad, Mattie Goad, Eugene Olmstead, and Mae Olmstead ("Defendants"). Plaintiffs allege their predecessor-in-title, Arlie Overton, had an agreement with Defendants' predecessor-in-title, Sherman Overton, that a fence ("Fence") would serve as the boundary line. Plaintiffs' deed does not include the disputed area up to the fence. After a trial, the Trial Court dismissed Plaintiffs' complaint, holding that the Fence was not the boundary line by agreement or acquiescence. Plaintiffs appeal. We affirm.

Shirley Breeding vs. Robert Edwards, et al - E2000-01900-COA-R3-CV View
We are asked to decide whether the Supreme Court's decision in the case of Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000), is applicable to a case in which a plaintiff seeks to recover under the uninsured motorist provisions of its policy based upon the alleged negligence of an unknown motorist, the existence of whom is first asserted by a named defendant. In the instant case, a vehicle driven by the plaintiff Shirley Irene Breeding was struck by a vehicle driven by the defendant Robert Lewis Edwards and owned by the defendant Johnston Coca Cola Bottling Group, Inc. ("Johnston"). She filed a complaint against these defendants within the period of the statute of limitations and secured the service of process upon her uninsured motorist ("UM") carrier, the appellee Farmers Insurance Exchange ("Farmers"). Outside the period of the statute of limitations, the defendants amended their answer to allege that an unknown motorist caused or contributed to the accident. Within 90 days, Breeding amended her complaint to add John Doe, i.e., the unknown driver, as a party defendant. Farmers moved to dismiss the claim against it. It relied on Brown, a slip and fall case. The trial court agreed with Farmers and dismissed Breeding's claim. Breeding appeals, asserting, inter alia, that Brown does not apply to the instant case. We reverse.

Jonathan Wilson vs. Sandra Wilson - E2000-01374-COA-R3-CV View
This appeal from the Loudon County General Sessions Court questions whether the Trial Court erred in awarding a change of residential custody from Appellant, Sandra Kay Wilson to Appellee, Jonathan David Wilson. Ms. Wilson appeals the decision of the General Sessions Court. We affirm the decision of the Trial Court and remand for such further proceedings, if any, consistent with this opinion. We adjudge costs of the appeal against the Appellant, Ms. Sandra Kay Wilson and her surety.

Mary Costa, Sue Henard, et al vs. James Clayton, LaRue Homes, et al - E2000-02627-COA-R3-CV View
Plaintiffs' action to invalidate an agreement between the defendants to grant an easement as consideration for land was found to be meritorious by the Trial Judge, and plaintiffs were granted summary judgment. On appeal, we affirm.

Donald Andrews vs. Barbara Andrews - M2000-00163-COA-R3-CV View
In this post-divorce case, each party sought modification of the child support order. The obligor father sought a decrease based on the older child's eighteenth birthday and graduation from high school. The obligee mother sought an increase based upon her belief that the father's income had increased. The trial court ordered a decrease based upon the older child's emancipation, but increased the amount due for the remaining minor child. The mother appeals, contending that the trial court failed to consider some of the father's work related benefits when setting the support. Because the mother had the burden of proving additional income to the father, and because she failed to meet that burden, we affirm the trial court.

Julius Hill vs. Perrigo of Tennessee - M2000-02452-COA-R3-CV View
This is an appeal from a grant of summary judgment to defendant, former employer of plaintiff. The plaintiff claims that he was fired in violation of the whistleblower statute, Tenn. Code Ann. § 50-1-304. The trial court found that the plaintiff failed to establish the prima facie elements under the statute, specifically, that the reason for his firing was solely because of his alleged reports of illegal activities. For the reasons below, we affirm.

Ronald Robinette vs. Mark Johnson - M2000-01514-COA-R3-CV View
This appeal involves a dispute over a promissory note. The jury below found for the Plaintiff. We affirm the trial court and remand for a determination of reasonable attorneys' fees incurred by Plaintiff with respect to this appeal.

Don Williams vs. Donal Campbell - M2000-01821-COA-R3-CV View
A prison disciplinary board extended the release eligibility date of an inmate, after finding him guilty of assaulting a guard. He filed a petition for writ of certiorari which challenged the method used by the Department of Correction to calculate his new release eligibility date. The trial court dismissed the petition. We affirm.

Melissa Steen vs. Evans Steen - M2000-00313-COA-R3-CV View
The appellee has filed a Petition for Rehearing. After careful consideration, we deny the appellee's petition. Appellee bases his petition on his belief that this court's opinion is not supported by the facts of the case and that this court did not properly weigh the trial court's assessment of the witnesses' credibility. This court overturned the decision of the trial court, and held that the mother should have primary custody of the children.

Cathy Allen vs. John Allen - W2000-01844-COA-R3-CV View
This appeal arises from a divorce action to end a fifteen year marriage. At the time of trial, Husband was forty-nine years old and Wife was forty-three years old and had been suffering from lupus for ten years. The trial court awarded Wife alimony in futuro, amounting to $1,300 per month which was to be increased to $1,800 per month after the latter of one year from entry of the final divorce decree or when the parties' son no longer resided with Wife. The trial court also awarded Wife her attorney's fees in the amount of $7,500. Husband appealed. We affirm.

Paul Holmes vs. Christy Holmes - W2000-01759-COA-R3-CV View
This is an appeal from a final decree of absolute divorce in which custody of the parties' minor son was given to the father for the school year and to the mother during the summer months when regular school is not in session. We affirm.

Shawn Farien vs. Regina Farien - W2000-00656-COA-R3-CV View
This is a child custody case. The parties and their minor child lived in Tennessee with the father's parents. The mother moved to Georgia with the child to live with her parents. Custody was awarded to the mother, and the father was granted broad visitation rights. The father appeals. We affirm, finding that the custody award is based in large part on the trial court's determinations of credibility and assessment of the parties' demeanor, and finding that the evidence does not preponderate against the award of custody to the mother.

Robert Richardson vs. Deborah Richardson - W2000-02374-COA-R3-CV View
Robert Richardson vs. Deborah Richardson - W2000-02374-COA-R3-CV ( Concur) View
This is a post-divorce custody case. Father filed a petition for change of custody of the parties' minor children alleging material change of circumstances. After a nonjury trial, the trial court denied Father's petition, and Father appeals. We affirm.

In matter of Hannah Parlow - W2000-01462-COA-R3-CV View
After paternity was established and Mother was granted custody of minor daughter, Father filed petition to change custody on the ground of material change of circumstances consisting of Mother's remarriage to an allegedly violent man, and Mother's intention to move with the child out of the state. The juvenile referee denied the petition and, upon a de novo trial before a special juvenile judge of the juvenile court, Father's petition was denied. Father has appealed. We affirm.

Julia Crews vs. Buckman Lab - W2000-01834-COA-R3-CV View
Plaintiff, attorney employed in legal department of corporation, sued the corporation for retaliatory discharge. Plaintiff alleges that she was discharged in retaliation for her reporting her superior, general counsel of the corporation, for the unauthorized practice of law, because her supervisor was unlicensed in the State of Tennessee. The trial court dismissed plaintiff's complaint pursuant to Tenn.R.Civ.P. 12.02(6) for failure to state a claim upon which relief can be granted. Plaintiff appeals. We affirm.

Estate of Paul Arthur Burns - W1999-01888-COA-R3-CV View
This is a claim against an estate. The trial court allowed a claim against the estate for $12,000 in past due child support, even though the claimant failed to file her claim within the period prescribed by the notice to creditors. The guardian ad litem for a minor beneficiary of the estate appeals. We hold that "actual notice" to creditors under Tennessee Code Annotated § 30-2-307 means notice (1) that the decedent has died, and (2) that the estate proceedings have commenced and the time period within which claims must be filed. The record in this case does not show when the claimant received such "actual notice." Consequently, we remand to the trial court for clarification of the record on this issue.

Jodie Willis vs. Alan Willis - W2000-01613-COA-R3-CV View
Father petitioned the court for a reduction in his child support obligation based upon a significant variance between his former salary and his current salary. The trial court determined Father to be voluntarily underemployed. The trial court imputed Father's base salary as potential income but did not impute Father's overtime pay. As a result, the trial court reduced Father's child support obligation by ten dollars per week. We affirm the trial court's determination that Father was voluntarily underemployed; however, we reverse and remand the trial court's determination of Father's potential income.

Aubrey Lightford vs. Allen Lightford - W2000-02712-COA-R3-CV View
Husband appeals final decree of divorce presenting issues pertaining to amount of child support and division of marital property. Husband did not file a transcript of the evidence, nor did he file a statement of the evidence. We affirm.

Holly Paul vs. Thomas Paul - E2000-02161-COA-R3-CV View
Holly Lynn Coleman Paul ("Wife") filed a complaint seeking a divorce from Thomas Frazier Paul ("Husband") on the basis of inappropriate marital conduct or, in the alternative, irreconcilable differences. Husband filed a counterclaim seeking a divorce on the ground of inappropriate marital conduct. The Trial Court granted Husband the divorce, divided the marital property which the parties could not divide by agreement prior to trial, awarded custody of the two minor children to Husband, and granted visitation to Wife. Wife appeals challenging the Trial Court's determinations on all of these issues. We affirm as modified.

Estate of Nan Francis vs. Karl Francis - M2000-01110-COA-R3-CV View
This appeal involves a dispute between a widow and her stepson regarding the disposition of a jointly owned certificate of deposit. After her stepson liquidated the certificate of deposit and used the proceeds to obtain another certificate of deposit in his own name, the widow filed suit in the Chancery Court for Cheatham County seeking her share of the funds. The stepson filed a counterclaim, alleging that the widow had contributed to his father's death by failing to provide needed medical care and seeking reimbursement for his father's funeral expenses. The widow died while the suit was pending, and her estate was substituted as a party. After dismissing the stepson's wrongful death claim, the trial court determined that the widow's estate and her stepson should receive equal shares of the proceeds of the account remaining after the payment of a joint debt of the widow's husband and her stepson and that the widow's estate should reimburse the stepson for the expenses he incurred in connection with his father's funeral. On this appeal, the widow's estate asserts that the trial court erred by ordering that the funds in the account be used to repay the joint debt and by ordering it to reimburse the stepson for his father's funeral expenses. We have determined that the trial court properly distributed the proceeds of the deposit account. However, we have also determined that the trial court erred by directing the widow's estate to reimburse the stepson for his father's funeral expenses.

Virnie Fulks vs. J. Hulan Watson, et al - M1999-02800-COA-R3-CV View
This declaratory judgment action was filed by a dissatisfied school system employee who was transferred from his position as Manager of Property, Plant, and Maintenance to the position of maintenance worker and ultimately was informed that he would not be rehired. The employee claimed these employment actions were improper because he was tenured and certified. He also sought additional compensation or compensatory time for extra hours he worked. The trial court determined that the employee was not tenured, could be transferred, and was entitled to only a limited amount of compensatory time. The court also found that the superintendent had authority not to renew the employment with proper notice, but that sufficient notice of nonrenewal had not been provided. We affirm.

Billy George vs. Misty George Mullican - M2000-01106-COA-R3-CV View
This appeal arises from a child custody action. After divorce, Mother was awarded custody of Child. Father later filed a petition for contempt charging that Mother was denying him visitation. Mother denied these charges and counter-filed claiming that Father had failed to meet his support obligations. While these matters were pending, Mother filed a report with the Department of Children's Services that Father had sexually molested Child. Mother later admitted these charges to be false, and as a result, Father gained temporary custody of Child. Mother later filed this petition requesting the return of Child to her custody. The trial court refused, instead finding that Father was the more fit parent and awarding him permanent custody. Mother appealed this decision. We affirm.

Donna Martin vs. Mary Coleman, et al - M1999-02238-COA-R3-CV View
This is a dispute over real property which was the subject of an installment land sales contract between the parties and over the proceeds of an insurance policy after the dwelling on the property burned. The trial court ordered that the title to the property be divested from the Seller and be vested in the Buyer and that the remaining proceeds of the insurance policy be awarded to Buyer after all overdue payments of taxes and insurance and the incurred clean up costs were deducted. The Seller appeals on the grounds that the evidence was contrary to the judgment and that the plaintiff had breached the contract and is entitled to neither the property nor the insurance proceeds. For the reasons below, we affirm the judgment as modified.

---

Cases posted the week of 06/11/2001
Roy Schrimsher vs. Sherry Schrimsher - E2000-02169-COA-R3-CV View
This is a post divorce custody dispute. Mother seeks custody of the two minor children because she believes the children are dependent and neglected. Father seeks an increase in child support for the children. Mother requested the Trial Judge to hear the testimony of the children who were 12 and 11 at the time. The children were the witnesses to the acts complained of in the petition to change custody. Mother could only present hearsay evidence from the children. The Trial Judge refused to hear the testimony of the children and continued custody with Father and increased Mother's child support. Mother then filed this appeal. We vacate the decision of the trial court and remand for the purpose hereinafter set out.

Kristin Huntley vs. William Huntley - E2000-01718-COA-R3-CV View
In this child support modification action, the Trial Court held that a significant variance existed between William Sidney Huntley's ("Defendant") child support obligation set by the parties' Marital Dissolution Agreement ("MDA") and the amount mandated by the Child Support Guidelines ("Guidelines"). The Trial Court ordered an increase in child support consistent with the Guidelines. Because the Guidelines' flat percentage amount of child support totaled approximately $6,600 per month, the Trial Court ordered it be divided between child support payments of $3,100 and payments to a non-educational trust ("Trust") in the amount of $3,500. Defendant appeals and primarily contends that his child support obligation should not be increased to the Guidelines' flat percentage amount because that amount exceeds a reasonable amount of child support and because the MDA controls his child support obligation despite any increases in his income. Kristin B. Huntley ("Plaintiff") also raises issues on appeal, primarily regarding the Trust. We affirm.

Janet Scarbrough vs. Edd Scarbrough - W2000-01807-COA-R3-CV View
This appeal involves issues stemming from the parties' divorce. The trial court terminated Husband's obligation to pay rehabilitative alimony. In addition, the trial court valued Husband's life estate in certain real property at $200,000.00, and the court awarded Wife $100,000.00. Both parties appeal the decision of the trial court. For the following reasons, we affirm.

Linda O'Mary vs. Protech Builders, Inc. - E2000-02539-COA-R3-CV View
The plaintiff, Linda O'Mary, brought this action against the defendant, Protech Builders, Inc., seeking damages for the defendant's alleged faulty construction of an addition to the plaintiff's home. Before trial, the parties entered into a settlement agreement, under the terms of which the defendant agreed to perform certain repairs, including "replac[ing]" any wood in the back wall of the addition showing signs of water damage, and to pay the plaintiff $2,000 in attorney's fees. When the defendant refused to remove several water-damaged studs from the back wall, the plaintiff filed a motion seeking, inter alia, to set the case for a full trial on the merits. The trial court found that the plaintiff was unreasonable in demanding that the water-damaged studs be removed. The court below concluded that the defendant's efforts to perform the repairs, along with its payment of $2,000 to the plaintiff, operated as an accord and satisfaction. The trial court denied the plaintiff's motion and dismissed her complaint. We reverse and remand for further proceedings.

---

Cases posted the week of 06/04/2001
Mary LouiseCase vs. Billy Ray Case - M2000-00547-COA-R3-CV View
This is a divorce case. The parties were married for twenty-five years and had no children. The wife was employed full-time and had a pension, and the husband was unemployed and disabled. The trial court granted a divorce to the wife on the grounds of inappropriate marital conduct by the husband, classified and divided the marital property without determining the value of the wife's pension, and made no provision for spousal support for the husband. The husband appeals. We affirm the grant of the divorce to the wife and affirm the decision not to award alimony to the husband. We reverse in part and remand for the trial court to classify the wife's pension plan as marital property, determine its value, and equitably divide it between the parties.

Arthur Armstrong, a/k/a Haki Al-Bey vs. Dept. of Correction, et al - M2000-02328-COA-R3-CV View
An inmate who was found guilty of three disciplinary infractions challenged those convictions by filing a Petition for Writ of Certiorari. The trial court dismissed the Petition. We affirm the trial court.

Brennco Inc. vs. Chattanooga Better Housing Comm. - E2000-01508-COA-R3-CV View
Plaintiff's action for an order restraining defendant from demolishing plaintiff's buildings was ultimately dismissed, after plaintiff failed to meet conditions set by the Court to keep the restraint in place. On appeal, we affirm.

William Fowler, as surviving parent of David Fowler, dec. vs. Ralph Davenport and Jason Richards - E2000-02509-COA-R3-CV View
The Trial Court granted defendants summary judgment on the grounds plaintiff's action was time-barred. We reverse and remand.

Patricia Mora vs. Gilberto Mora - W1999-02483-COA-R3-CV View
This case involves a dispute stemming from the parties' divorce in 1991. The divorce decree provided that Ms. Mora and the parties' adult daughter could live in the marital home for thirty months following the divorce, at which time the home was to be put on the market for sale and the proceeds divided. After the thirty month period expired, Mr. and Ms. Mora attempted to settle the dispute concerning the marital home. The parties each executed documents, and a dispute arose as to which document embodied the parties' intentions. The trial court ruled on the parties' settlement dispute, and the court also appointed Ms. Mora as the adult daughter's guardian and ordered that Mr. Mora provide support for his daughter. For the following reasons, we affirm in part and reverse in part.

Victor Williams vs. Percey Pitzer - W2000-00028-COA-R3-CV View
This is a habeas case. A Wisconsin inmate housed in a Tennessee prison filed a petition for a writ of habeas corpus. The prisoner was incarcerated in Tennessee pursuant to a contract between the Wisconsin correctional department and a private corporation. In his petition, the prisoner alleged that the Wisconsin correctional department did not have the authority to transfer him across state lines, and thus, his incarceration in Tennessee was illegal. The trial court dismissed his petition for failure to state a claim upon which relief can be granted. The plaintiff prisoner appealed. We affirm.

Guardianship of Courtney Hodges - W2000-01424-COA-R3-CV View
This appeal arises from the deed and devise of property to Courtney Warner Hodges, a minor, by her great grandmother, now deceased. The Appellee brought a petition for appointment of a guardian for Courtney in the Probate Court of Shelby County. The petition stated that Courtney needed a guardian to represent her interests and collect and invest her income from the property. The petition also stated that the income interest to Courtney was not encumbered by trust. Following a hearing, the trial court entered an order for management of minor's estate. The trial court found that the evidence was insufficient to impose oral trusts upon the property.

Robin Berry, et al vs. Wilson County Board of Zoning Appeals, et al - M2000-01995-COA-R3-CV View
The Wilson County Board of Zoning Appeals denied Petitioner's request to establish a flea market or a gift shop/deli shop in property zoned C-3 (Highway Commercial). The Board denied Petitioner's request, finding that the Petitioner's proposed businesses were neither permitted uses nor uses permissible on appeal. Petitioner appealed the decision of the Board of Zoning Appeals to the chancery court. The chancery court reversed the decision of the Wilson County Board of Zoning Appeals. For the following reasons, we affirm.

David Britt vs. Donal Campbell, et al - M2000-01423-COA-R3-CV View
A prison inmate escaped from custody and was recaptured. After a disciplinary hearing, the Department of Correction extended his Release Eligibility Date so that he would have to serve an additional 20% of his sentence before being considered for parole. The prisoner filed a Petition for Declaratory Judgment, contending that the Department's action violated statutory and constitutional law. The trial court dismissed the Petition. We affirm.

Julia Leach Bryan vs. James Leach - M1998-00922-COA-R3-CV View
This case involves post-divorce disputes over alimony and child support and issues of contempt of court. The father commenced this appeal after the trial court declined to modify or terminate his alimony obligation and awarded the mother more than $50,000 in child support arrearages and, later, found the father in contempt of court and ordered him to pay a fine of $100 per day until all judgments were paid to the mother. On appeal, the father argues that his alimony obligation should have terminated or decreased, that a portion of his child support payments should be placed in trust for the benefit of the children, and that the trial court erred by fining him for contempt. We affirm the trial court's orders but modify the fine imposed upon the father.

In the Matter of: C.L.H., d/o/b 7/23/95, and L.L.H., Jr., d/o/b 9/12/97 - M2000-02799-COA-R3-JV View
The juvenile court of Dickson County granted a petition to terminate the parental rights of the natural parents of two children. The parents raise several issues on appeal, including (1) the juvenile court's refusal to grant a continuance, and (2) the court's conclusion that the grounds for termination were proved by clear and convincing evidence. We affirm the termination of parental rights.

James Kirchner vs. Jacqueline Kirchner - M2000-02102-COA-R3-CV View
The trial court granted the husband a divorce, divided his military pension between the parties, and awarded the wife rehabilitative alimony. The wife argued on appeal that she should have been given a greater share of the husband's pension, and that the alimony award was inadequate. We affirm the property division and the amount of the alimony award, but remand this case to the trial court for a determination of whether a change of circumstances would entitle the wife to an extension in the duration of the award.

Wessington House Apartments vs. Ashley Clinard - M1999-01029-COA-R3-CV View
Appellee, a privately owned, government subsidized apartment complex filed an unlawful detainer action seeking to evict appellant, Ashley Clinard, after a small amount of marijuana was found in her apartment. A guest admitted to having the marijuana despite Ms. Clinard's expressed prohibition against drugs in her apartment. The circuit court entered a judgment for possession of the premises against the defendant, interpreting provisions of the lease, one required by federal law and the other allowed by Tennessee law, to permit eviction of a tenant for drug related actions of a guest, even without the knowledge of the tenant. Based upon the Tennessee Supreme Court's decision in Memphis Housing Authority v. Thompson, 38 S.W.3d 504 (Tenn. 2001), holding that a tenant may not be evicted for drug related criminal activities of a guest, under federally-required lease provisions, unless the tenant knew or should have known of the activity and failed to take reasonable steps to prevent it, and because the evidence shows that Ms. Clinard had no reason to know that her guest had marijuana in her apartment, we conclude the eviction based on that provision must be reversed. Additionally, because we find that temporary mere presence of a small amount of marijuana does not constitute "a violent act" or "a real and present danger to the health, safety or welfare of the life or property of other tenants or persons," we conclude that state law does not authorize the summary eviction. Accordingly, we reverse the trial court.

---

Cases posted the week of 05/28/2001
In the Matter of: A.M.B., D.O.B. 6-13-95 - M2000-01130-COA-R3-CV View
The only question involved in this appeal is whether it was in the best interests of a minor child to terminate the parental rights of the child's mother. The Juvenile Court of Putnam County found that fact against the mother. We affirm.

Pamela Bencriscutto vs. Lamesia Simmons & Brooke Lucas vs. L. Simmons - M2000-01816-COA-R3-CV View
This consolidated appeal concerns a multiple vehicle automobile collision which occurred during interstate rush hour traffic in Nashville. Lamesia A. Simmons' vehicle came into contact with the rear portion of Paula C. Bencriscutto's vehicle during an attempted lane change. This impact then caused the Bencriscutto vehicle to come into contact with Brooke A. Lucas' vehicle. Lawsuits were instituted in the Circuit Court of Davidson County by both Lucas and Bencriscutto against Simmons to recover damages associated with the collision. These suits were consolidated for trial and this subsequent appeal. At the close of the Plaintiffs' proof the court directed a verdict in favor of the plaintiffs and against Simmons. The issue of damages was then submitted to the jury with a verdict of $9,947.69 being returned in favor of Bencriscutto and in the amount of $5,482.50 for Lucus. Ms. Simmons appeals insisting that the trial court erred in granting the directed verdict. We affirm the action of the trial court in directing the verdict and the damage award.

Dorothy Cathcart vs. James Tillar, et al - M2000-01439-COA-R3-CV View
This case presents the issue of whether the administrator of an estate breached his fiduciary duty, under the circumstances herein presented, when he failed to see that an asset of the estate worth in excess of $10,000 was properly insured. We find that Defendant breached his duty when, after he was informed by Plaintiff that she had paid off the bank note on the mobile home after attempting to sell it, he failed to make any inquiries into who would pay the insurance, how the insurance would be paid, when the insurance was due, or whether any insurance was in effect. This breach of duty caused loss to the estate when the mobile home was destroyed by a tornado while uninsured. As a result, we find Defendant liable to the estate in the amount of $11,415, as this is the amount the proof showed would have been paid by insurance.

Eddie Dorris, et al vs. Jeffery Crisp - M2000-02170-COA-R3-CV View
Over four months after signing a surrender of her parental rights and consent for her minor child to be adopted, Appellee filed a Petition to Set Aside Surrender on the basis of a procedural defect. The Chancellor held that Appellee had abandoned the child, that the surrender executed by Appellee on June 24, 1999 should be set aside because there was no home study performed prior to the surrender, and dismissed the petitions for adoption. The Chancellor ordered the child returned to the custody of Appellee, which order was stayed by this Court September 19, 2000. The adoptive parents appeal raising the following issues for consideration: (1) Whether the mother has standing to attack the surrender on the basis of a lack of a home study, (2) whether the surrender is valid, and (3) whether the trial court was limited to the criteria set forth in Tennessee Code Annotated section 36-1-113(h) in determining whether termination of parental rights was in the child's best interests. We reverse and find the surrender valid.

Madge Fell,e t al vs. Gloria Rambo, et al - M2000-02100-COA-R3-CV View
This case is before the Court on appeal from the action of the trial judge in overruling a Rule 60.02 Motion for Relief From a Final Judgment. Non-jury trial on the merits of the case resulted in a judgment of the trial court finding no lack of capacity of Nannie Bell Crockett and no undue influence exerted upon her. That same final judgment held that Plaintiffs, as remaindermen, under the will of John E. Crockett, received at the death of Nannie Bell Crockett, the remaining proceeds from the sale of a farm during her lifetime, which farm had been willed to her for life by her husband, John E. Crockett, with unlimited power of disposition. On appeal, this Court reversed the judgment of the trial court, finding that the pre-1981 version of Tennessee Code Annotated section 66-1-106 (1993) applied to the case, and that the sale of the farm by the life tenant with unlimited power of disposition, terminated the interest of the remaindermen, and that the remaindermen were not entitled to the proceeds of the sale of the farm still remaining in the possession of Nannie Bell Crockett at the time of her death. This judgment is now final and is reported in Fell v. Rambo, 36 S.W.2d 837 (Tenn. Ct. App. 2000). On remand, the trial court denied the Rule 60.02 motion in issue on this appeal and we affirm the trial court.

Ruth Holland vs. Maybron Holland, Jr. - M1999-02791-COA-R3-CV View
This appeal stems from a divorced couple's decision to modify the terms of an agreed order regarding the payment of their marital debt. Almost six years after the parties were divorced in the Chancery Court for Maury County, the husband agreed to release the wife from her obligation to pay a portion of the marital debt in return for her agreement to use her credit to help him purchase a new truck. After the wife repossessed the husband's new truck, the husband requested the trial court to enforce the original agreed order. The trial court determined that the original agreed order remained valid and awarded the husband $18,944 representing the payments the wife should have made under the agreed order. The wife asserts on this appeal that the parties' agreement to modify the agreed order was valid and that she had performed her obligations under the agreement. We agree and, accordingly, reverse the judgment for the husband and direct the trial court to enter an order releasing the wife from her obligation under the agreed order.

Betty Johnson, et al vs. Charles Settle, M.D., et al - M1999-01237-COA-R3-CV View
This is an appeal of a jury verdict based on personal injuries plaintiff received as a result of the wrong acetic acid solution being applied during a colposcopy. Metro Medical Supply, Inc., the supplier of the acid, appeals the trial court's decisions on post trial motions and the amount of the remittitur. Among other grounds, Metro Medical asserts that it is not liable because any acts or omissions on its part were too remote and that there were intervening superceding causes that were the legal and proximate cause of plaintiff's injuries. We agree, and for the reasons below, we find that Metro Medical was not legally liable to plaintiffs and any negligence on its part was superceded by unforeseeable intervening causes. Accordingly, the judgment against Metro Medical Supply, Inc. is reversed.

In The Matter of The Estate of Ruth Calfee - E2000-01720-COA-R3-CV View
After this Court reversed a jury verdict of favor of the Will of Ruth Margaret Calfee, a second jury trial was conducted. The second jury also found in favor of the Will. Proceeding pro se on appeal, Appellants argue that the Trial Court erred in not granting a directed verdict in their favor on the issue of whether the decedent received independent advice concerning her Will. Appellants also claim error in the jury instructions that were given, and further assert that several other necessary jury instructions were not given at all. Because all of these issues have been waived, we affirm the judgment of the Trial Court.

State Farm Ins. Co. vs. Charles Schubert, et al - E2000-02054-COA-R3-CV View
State Farm Insurance Company filed a declaratory judgment action seeking a determination as to its liability under the uninsured motorist ("UM") coverage of an automobile insurance policy issued to Charles Schubert. Schubert and his wife had obtained judgments against an uninsured motorist totaling $330,000. Of this amount, Schubert was awarded $260,000 for his injuries. His wife, Clara Schubert, was awarded $70,000 for loss of consortium. At the time of the automobile accident that gave rise to the underlying claims, Schubert was acting within the course and scope of his employment; as a result of his injuries, he received workers' compensation benefits of $89,518.08. We are asked to decide how much of the UM single-person coverage limit of $100,000 is payable in view of the language of the following provision of the policy as it applies to the UM coverages:

Any loss or expense paid or payable under any worker's compensation law...will not be paid again as damages under [the uninsured motorist] coverages.

The insured contends that he is entitled to $100,000; State Farm argues that its liability is limited to $10,481.92, being the difference between the UM coverage limit of $100,000 and the amount of the compensation payments. The trial court agreed with State Farm. We reverse.

Package Express Center, Inc. vs. Doug Maund & Emm-Dee Drug Co. - E2000-02059-COA-R3-CV View
Package Express Center, Inc. vs. Doug Maund & Emm-Dee Drug Co. ( Concur/Dissent) View
In this breach of contract action, the Trial Judge enforced a non-compete provision by injunction and awarded damages. We reverse the issuance of the injunction and remand to establish reasonable damages for breach of the agreement.

Blanche Bunch vs. Robert Sharp - E1999-02524-COA-R3-CV View
In this boundary line dispute, the Trial Judge established the boundary between the parties' lands and Plaintiff has appealed. We affirm.

Jennifer Gregg vs. Shirley McKay, Diane Farley, and Michael Floyd - E2000-01754-COA-R3-CV View
This is a suit seeking damages for sexual harassment filed by the Plaintiff/Appellant, Jennifer Gregg, in the Circuit Court for Sevier County against the Defendants/Appellees, Shirley McKay and Diane Farley. The Trial Court sustained the Defendants' motion for summary judgment . We vacate the judgment of the Trial Court and remand for further proceedings consistent with this opinion. Costs of appeal are adjudged against the Defendants.

Daniel Lowe vs. Faytella Lowe - E2000-01456-COA-R3-CV View
In this divorce case, the trial court dissolved a childless marriage of 5 1/2 years. Daniel Ed Lowe ("Husband") appeals, arguing that the trial court erred (1) in declaring the parties' antenuptial agreement void and (2) in granting Faytella D. Lowe ("Wife") half of the increase in value of Husband's retirement benefits accrued during the marriage. We affirm.

George Clayton vs. Betty Clayton - E2000-01413-COA-R3-CV View
This is a divorce case. The trial court granted the counter-plaintiff, Betty L. Clayton ("Wife"), a divorce from the original plaintiff, George M. Clayton ("Husband"), on the ground of inappropriate marital conduct; divided the parties' marital property; identified and decreed the distribution of their separate property; and awarded Wife alimony in solido of $325,000, plus attorney's fees of $15,000. Husband appeals the division of property, the amount of the alimony award, and the award of attorney's fees. We affirm.

Brenda Tipton vs. Richard Jones, et al - E2000-01860-COA-R3-CV View
Brenda L. Tipton ("Plaintiff") filed this lawsuit seeking damages for personal injury. Allstate Insurance Company ("Allstate"), Plaintiff's uninsured motorist carrier, filed a motion in limine seeking to exclude portions of the testimony of Plaintiff's treating physician because it was not based upon a reasonable degree of medical certainty. Allstate also claimed that the jury verdict was excessive and it was entitled to a remittitur or a new trial. We affirm the Trial Court's evidentiary rulings and its refusal to grant a remittitur or new trial.

Tennessee Farmers Mutual Ins. Co. vs. Robert Westmoreland, et al - E2000-02693-COA-R3-CV View
Tennessee Farmers Mutual Insurance Company ("Plaintiff") filed a declaratory judgment action claiming that the homeowner's insurance policy issued to Robert and Elizabeth Westmoreland ("Defendants") was void due to material misrepresentations made on the application for insurance by Mr. Westmoreland. Defendants claim they provided the correct information, but it was incorrectly recorded by the insurance agent. The Trial Court granted Plaintiff's motion for summary judgment. We affirm.

Teddy Tedder/Maurice Tedder vs. Union Planters - W1999-01971-COA-R3-CV View
The plaintiff worked for a temporary employment agency and was assigned to work for a bank. The plaintiff fell in the bank parking lot as she was reporting to work. She filed a negligence lawsuit against the bank for her injuries. The trial court granted the bank's motion for summary judgment on the basis that the plaintiff was a co-employee of the bank under the loaned servant doctrine; therefore, the suit was precluded under the workers' compensation statute. The plaintiff appeals. We affirm, finding that the plaintiff was a co-employee of the bank under the loaned servant doctrine.

Derrick Webb vs. Marvell Collier - W1999-01682-COA-R3-CV View
This is a false arrest case. The plaintiff was arrested by one of the defendants, a security guard, in a Kroger grocery store. The plaintiff sued the security guard, Kroger, and others. The uncontroverted evidence showed that the security guard was an employee of a private security firm and not an employee of Kroger. The trial court granted Kroger's motion for summary judgment. We reverse, finding that Kroger may be held liable under some circumstances for the actions of a security guard who is an independent contractor.

Michael Youmans vs. Samuel Coleman - W2000-00150-COA-R3-CV View
This is a construction case. The general contractor sued the homeowner for failing to make payment under the contract and for failing to pay for "extras" not contained in the original contract. The homeowner asserted that the general contractor failed to make certain corrections to the home, and that he did not agree to pay for "extras." After a bench trial, the trial court held for the homeowner. The general contractor appeals. We affirm, finding that the trial court's decision was based on its determination of the credibility of the witnesses.

Hansom Davis vs. Alfred Earls - W2000-00280-COA-R3-CV View
This is a suit by a prisoner against his former lawyer. The prisoner, convicted of rape and other crimes, was represented by the defendant, a former assistant public defender, in an unsuccessful attempt to obtain post-conviction relief. The prisoner later sought post conviction relief again in Circuit Court, proffering an affidavit purportedly signed by his victim recanting her statement that the prisoner had raped her. By this time, the defendant was no longer an assistant public defender, but had become employed as an assistant district attorney general. The defendant received information that the affidavit proffered by the prisoner was a forgery, and instigated proceedings that led to the prisoner's indictment for subornation of perjury. The prisoner sued the defendant attorney for breach of contract, official misconduct, and negligence per se. The trial court granted the defendant's motion to dismiss and/or for summary judgment. The prisoner appeals, and we affirm.

Billy Hembree, et al vs. State - M2000-00767-COA-R3-CV View
Lester Peavyhouse, having been found not guilty by reason of insanity after an April 1985 attack upon his sister with a hatchet, was committed by the Circuit Court of Stewart County to the Middle Tennessee Mental Health Institute ("MTMHI") in Nashville for involuntary care and treatment on March 1, 1988. In January 1989, he was transferred from MTMHI to Luton Community Mental Health Center subject to a mandatory outpatient therapy plan. In July 1989, he was transferred to Vanderbilt Mental Health Center Adult Outpatient Services section. Ultimately, Peavyhouse enrolled as a student at Austin Peay State University with out patient therapy through Harriet Cohn Center in Clarksville. On October 31, 1991, Peavyhouse entered a private residence in Clarksville with a .410 gauge shotgun and shot to death Misty Harding and Billy Hembree, seriously wounded David Ross and Robert Huff, and committed aggravated assaults upon Charity Baggett, Deanna Shepherd, Walter Scott Palmer, and Jeffery Underwood. Peavyhouse was convicted on all charges and sentenced to two consecutive life terms in prison plus fifty-six years. The estates of Harding and Hembree, together with the other victims of the October 31, 1991 assaults, brought suit against the State of Tennessee before the Tennessee Claims Commission charging MTMHI with negligence in the January 23, 1989 release of Peavyhouse from a secure treatment facility. The Tennessee Claims Commission rendered judgment in favor of the claimants and the State of Tennessee Appeals. We affirm the judgment of the Claims Commission.

Consumer Advocate Div., on behalf of TN Consumers vs. TN Regulatory Authority & BellSouth Telecomm., Inc. - M1999-01170-COA-R12-CV View
This is an appeal from an order by the Tennessee Regulatory Authority. The Tennessee Regulatory Authority denied the Consumer Advocate Division‘s request for a declaratory order as to the applicability of Tennessee Code Annotated §§ 65-5-208(a) and 65-5-209 to a telephone company's proposed tariff. It also denied the Consumer Advocate Division's request for a declaratory order as to the applicability of a previous order by the Authority approving the telephone company's application for price regulation, dismissed its claim for breach of contract, and denied its request for injunctive relief. Consequently, the proposed tariff was approved. The Consumer Advocate Division appeals. We affirm.

B. Gayden Pate, et al vs. C & S of Tenn., Inc., et al - M2000-02283-COA-R3-CV View
The plaintiffs signed a contract for the purchase of a new home, conditional on their ability to sell their present home and to obtain a mortgage loan. They gave the defendant developer $30,000 as earnest money. When they were unable to sell their home, they asked for the return of the earnest money. The defendant refused, and the purchasers sued. The trial court ordered the defendant to return the $30,000. We affirm, but we modify the court's judgment to assess interest and attorney fees against the sellers.

Johnnie Roberts vs. Carl England - M1999-02688-COA-R3-CV View
This is an appeal from a bench trial involving a boundary dispute between the parties. Testimony of the parties, other witnesses, the deeds, and the surveys of each party's surveyor were admitted into evidence. Considering all of the testimony and documentation submitted, the trial court held that the boundary as stated by the plaintiff's surveyor was the proper boundary. The sole issue on appeal is whether the plaintiff failed to join a third party adjoining land owner as an indispensable and necessary party, thereby resulting in the failure of the trial court to properly resolve fully and completely the dispute. For the reasons below, we vacate the judgment of the trial court and remand.

In the matter of Leola Dedman vs. Mary Murphy - W2000-00086-COA-R3-CV View
This appeal arises from an order of the Probate Court of Shelby County surcharging George Henderson, executor and trustee of the estate of Leola Dedman, in the amount of $11,018.29. This Court granted Mr. Henderson's T.R.A.P. Rule 10 Application for Extraordinary Appeal as to the surcharge. For the reasons stated herein, we affirm the trial court's decision.

De Lage Financial vs. Earthlab Productions - W2000-02232-COA-R3-CV View
This appeal involves a contract dispute. The Appellant alleges that the Appellees made one payment but then failed to continue making payments as per the terms of the agreement. The Appellees, however, assert that consideration for the contract is lacking. At the close of Plaintiff's proof at trial, Defendants moved for an involuntary dismissal pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure, which the trial court granted. For the following reasons, we affirm the decision of the court below.

Walter Chandler vs. Canale & Co. - W2000-02067-COA-R3-CV View
Plaintiff appeals from a grant of summary judgment in favor of the defendants. The complaint alleged the plaintiff had a partnership with the defendants and accused the defendants of breach of contract. The trial court granted summary judgment for the defendants on the basis of judicial estoppel, concluding the plaintiff had previously testified under oath in prior litigation that he had no ownership interest in the business. We affirm the judgment of the trial court.

Larry Barnes vs. Goodyear - W2000-01607-COA-R3-CV View
This is a suit for wrongful termination under the Tennessee Handicap Act, remanded to this Court by the Tennessee Supreme Court. After a jury trial, the jury found that the employer regarded the employee as handicapped and terminated his employment in violation of the Tennessee Handicap Act. The jury awarded the employee $150,000 in back pay and $150,000 for humiliation and embarrassment. The trial court suggested a remittitur, reducing the back pay award to $100,000, and reducing the award for humiliation and embarrassment to $75,000. The defendant was ordered to pay approximately $30,000 in attorney's fees and court costs. The plaintiff employee accepted the remittitur under protest, and both parties appealed. This Court reversed, holding that there was insufficient evidence to permit the jury to find that the employer regarded the plaintiff as "suffering from an impairment which substantially limited a major life activity." Based on this holding, all remaining issues were pretermitted. The Tennessee Supreme Court reversed this Court's holding, finding that there was material evidence to support the jury verdict. The Supreme Court remanded the case for resolution of the pretermitted issues. On remand, we affirm the trial court's remittitur of the award for humiliation and embarrassment, affirm the trial court's award of attorney's fees and court costs, and reverse and remand the trial court's remittitur of the back pay award.

Susan Weissfeld vs. Steven Weissfeld - E2000-02233-COA-R3-CV View
In this divorce action the Trial Court divided marital property, set child support, and granted wife limited rehabilitative alimony. Wife appealed. We affirm, as modified.

---

Cases posted the week of 05/21/2001
Cassie Gilliland vs. Billy Pinkley - W2000-00982-COA-R3-CV View
Plaintiffs appeal from a grant of summary judgment in favor of defendant Vision Care Properties, Inc., and the refusal of the trial court to subsequently grant relief under Tenn. R. Civ. P. 60.02. The complaint alleged that the minor child, Cassie Gilliland, was attacked and injured by a vicious dog owned by, and kept at the home of, defendant Billy Ray Pinkley, which residence was leased to Pinkley by defendant Vision Care Properties, Inc. Subsequent to the grant of summary judgment, plaintiffs sought Rule 60.02 relief based upon an affidavit of Pinkley which was inconsistent with his prior affidavit. We affirm the trial court in all respects.

Jeffrey Butler vs. City of Jackson - W2000-02154-COA-R3-CV View
This case is before the court for the second time. Defendant was tried in city court for violation of five separate city ordinances and was fined a total of $250.00 for the five violations. After a de novo trial in circuit court, defendant was found guilty of violating the five separate ordinances and was fined a total of $250.00. This Court reversed the conviction on two of the five ordinances and affirmed the convictions on three of the ordinances. The case was remanded to the trial court to determine the amount of fine for the three violations. On remand, the trial court assessed fines totaling $750.00, being $250.00 for the violation of each of the three ordinances. Defendant has appealed. We reverse the trial court and set defendant's fine at $250.00 for violation of the three city ordinances.

Delois Armstrong vs. James Coleman - W2000-01122-COA-R3-CV View
In two cases consolidated for appeal, the petitioners, mothers that are provided child support enforcement and paternity establishment services by the State of Tennessee pursuant to federal and state law, appeal the orders of the trial court setting periodic child support and establishing child support arrearages. The trial court failed to follow the child support guidelines, stating that the guidelines are an unconstitutional violation of the equal protection clause of both the state and federal constitutions insofar as the guidelines do not allow credit to a payor-parent for obligations imposed by child support orders concerning children born to the payor-parent subsequent to the subject child. We reverse and remand.

Judy (Kendrick) Shoemake vs. Timothy Lee Kendrick - E2000-01318-COA-R3-CV View
In this appeal from the Chancery Court for Hamilton County the Appellant, Judy (Kendrick) Shoemake questions whether the Trial Court erred in granting a petition to modify custody filed by the Appellee, Timothy Lee Kendrick, and whether the Trial Court erred in its determination of the amount due her for child support arrearage and unreimbursed medical expenses paid by her on behalf of the parties' minor children. We reverse in part, modify in part and remand for further proceedings, if any, consistent with this opinion. We adjudge costs of the appeal against Judy (Kendrick) Shoemake and Timothy Lee Kendrick equally.

City of Knoxville, et al vs. Robert J. Taylor, et al - E2000-02329-COA-R3-CV View
This is an appeal from a judgment entered in the Chancery Court for Knox County imposing certain punishment as to two members of the Knoxville Police Force, Officer Robert J. Taylor and his father, Sergeant Dick Taylor. The Administrative Hearing Officer at the initial hearing found no misconduct on the part of the Taylors which would justify any penalty. The Taylors appeal contending the Chancellor was in error and there was substantial and material evidence to support the Hearing Officer's determination. As to Sergeant Taylor we reverse the Chancellor's determination and as to Officer Taylor we affirm.

Gerald Hopper vs. Patricia Hopper - M2000-01444-COA-R3-CV View
Wife appeals final decree of divorce as it pertains to a division of marital property and alimony in futuro award. The trial court charged Wife with entire amount of advance from house-sale proceeds and failed to award Wife one-half of Husband's retirement. Wife appeals. We modify the division of marital property and affirm as modified.

Johnny Conaway vs. Semiko L. Lewis (Conaway) - M2000-00617-COA-R3-CV View
This is a suit by an incarcerated prisoner seeking a divorce from his unincarcerated wife. The complaint alleges that the parties have no children and seeks divorce on the grounds of adultery and desertion. The defendant was before the court by personal service of process and did not answer the complaint. The prisoner sought default judgment which motion was never acted upon by the trial court. The circuit court clerk served a notice on the parties in this case on January 7, 2000, that since the case had been filed since December 9, 1998 and not prosecuted, it was subject to dismissal for failure to prosecute. On February 29, 2000, the case was dismissed for failure to prosecute. The prisoner/plaintiff timely appealed and we reverse the action of the trial court.

Michael Ray Brenneman vs. Margaret Ann Redd Brenneman - M2000-00890-COA-R3-CV View
This appeal involves the dissolution of a 31-year marriage by the Circuit Court for Wilson County. Following a bench trial, the trial court declared the parties divorced and divided their marital property but declined to award the wife spousal support. On this appeal, the wife asserts that the trial court erred by declining to grant her spousal support. We have determined that the trial court placed too much emphasis on the value of the wife's share of the marital estate when it declined to grant her spousal support. Accordingly, we have determined that the judgment should be amended to award the wife spousal support in the amount of $200 per month until she reaches sixty-five years of age. We also remand the case to the trial court to calculate a reasonable award for the wife's legal expenses.

Franklin County, TN vs. The Town of Monteagle, TN, et al - M2000-02453-COA-R3-CV View
This is an annexation by referendum case. Monteagle is located in Grundy County. Its corporate limits extend to Franklin County. Interested residents of the area sought to be annexed in Franklin County petitioned Monteagle to be annexed. Monteagle adopted a Resolution for the referendum. Nineteen out of twenty eligible voters favored annexation. Franklin County filed a complaint for injunctive relief, which was granted upon a finding that the Resolution was not properly published. Monteagle appealed, but in the interim, adopted another Resolution for a referendum. The voters again favored annexation. The County challenged the second referendum by a Rule 52 motion alleging that Monteagle repealed the Resolution for the second referendum thus making it a nullity.

Melissa Jane (Nichols) Steen vs. Evans Harrington Steen - M2000-00313-COA-R3-CV View
In this custody case the General Sessions Court of Wilson County changed its custody order from joint care and control with primary custody in the father to exclusive custody in the father and standard visitation to the mother. The record shows, however, that the mother has had primary custody of the children since the divorce and that both parties are fit parents. They each love the children and take good care of them. Under those circumstances, we hold that there is a presumption in favor of continuity of placement. Therefore, we reverse the lower court's order and grant primary custody to the mother.

Rochelle McDonald vs. Percy Jones - W2000-00575-COA-R3-CV View
This is an appeal of an order changing custody of the parties' minor child. Father filed a petition for change of custody, alleging that the change was in the best interests of the child. The juvenile court, upon rehearing of father's petition to change custody, reconfirmed the original order changing custody to the father. Mother appeals. We reverse the order of the juvenile court and hold that custody of the minor child be returned to his mother.

Robert McCurley vs. Harold Angus - W2000-01348-COA-R3-CV View
This is an action in negligence arising out of the demolition by the Appellee of a condemned building in Jackson, Tennessee pursuant to a contract with the city of Jackson. The demolished building was located adjacent to the Appellants' building, and the two buildings shared a party wall. The Appellants' building sustained damages as a result of the demolition of the condemned building. The Appellants brought a complaint against the Appellee in the Circuit Court of Madison County, alleging negligence on the part of the Appellee. The jury found in favor of the Appellee. The Appellants appeal from the entry of a jury verdict in favor of the Appellee. For the reasons stated herein, we affirm the trial court's decision.

Tom B. Harris, Jr., Administrator C.T.A., et al vs. Sarah Ann Coles, et al - 2000-02334-COA-R3-CV View
The trial court held that the terms of a promissory note did not entitle its beneficial owners to compound interest arising from the obligor's failure to make timely installment payments, but only to simple interest on the principal. We affirm.

Carolyn Marie Leasure White, et al vs. Timothy Wade Moody - M2000-01778-COA-R3-CV View
This is a suit wherein the Plaintiffs seek a termination of the Defendant father's parental rights and an adoption by the mother's present husband. The Trial Court terminated the father's rights and granted the adoption. We vacate and remand for a determination of the best interest of the child as required by T.C.A. 36-1-113(c)(2).

Steffone McClendon vs. Dr. Elaine Bunick - E1999-02814-COA-R3-CV View
In this medical malpractice action, Plaintiff appeals the trial court's entry of summary judgment in favor of the Defendant, Dr. Bunick. For the reasons set forth below, we affirm the trial court in all respects.

Knox County Ex Rel., Thomas Schumpert vs. Union Livestock Yard, Inc. - E2000-02702-COA-R3-CV View
In the instant case, the trial court dismissed a condemnation petition filed by Knox County. The court then proceeded to award the defendant landowner $30,000 in expenses pursuant to the provisions of T.C.A. § 29-17-812. The landowner appeals, arguing that the trial court erred in failing to award all of its claimed expenses. The landowner also seeks attorney's fees and expenses related to this appeal. We affirm the trial court's judgment that the landowner is entitled to an award of expenses, but we find that the evidence preponderates in favor of a larger award. We also find that the landowner is entitled to its attorney's fees and expenses incurred as a result of this appeal. As modified, we affirm.

Terry Yates vs. City of Chattanooga, et al - E2000-02064-COA-R3-CV View
Chattanooga Police Officer Terry Yates filed a petition for certiorari in the trial court, claiming that he was denied due process in connection with an adverse employment decision. Yates, who was demoted from the rank of sergeant in 1994, sought reinstatement to his former rank. An administrator initially reinstated him, but subsequently rescinded the reinstatement. Yates claimed that the rescission was a "demotion," and, consequently, demanded a hearing before the defendant City Council for the City of Chattanooga ("the City Council"). Following a hearing, the City Council found that the administrator did not have the authority to reinstate Yates to his former rank. This being the case, the City Council found that there had been no "demotion" by virtue of the subsequent rescinding of the reinstatement. The trial court agreed with the City Council and dismissed Yates' petition. He appeals. We affirm.

State, ex rel, Purlie Page, vs Ricardo Trabal - E2000-02738-COA-R3-CV View
This action to establish paternity was dismissed by the Trial Court on the grounds of estoppel and laches. We reinstate the action and remand.

---

Cases posted the week of 05/14/2001
State vs. Ewing - W2000-01190-COA-R3-PC View
This is an appeal by a juvenile from an order of the circuit court granting the State's motion to dismiss her petition for post-commitment relief. The grounds stated in the petition are that she was given an illegal sentence when the juvenile court, having found her delinquent in that she committed "theft under $500.00, violation of aftercare," imposed a determinate sentence of 2 years. We reverse and remand.

Charles Montague vs. Michael Kellum - E2000-02732-COA-R3-CV View
In this legal malpractice action, the Trial Court granted summary judgment to the Defendant, Michael D. Kellum ("Defendant"). Defendant submitted a Rule 56.03 statement and the affidavit of an expert witness in support of his motion. Charles Montague ("Plaintiff"), did not file either a Rule 56.03 response or a contravening affidavit. Prior to deciding Defendant's motion, the Trial Court stayed Plaintiff's discovery until it decided Defendant's motion. Plaintiff, who is incarcerated, had previously served discovery requests upon Defendant which had not been answered. Plaintiff appeals. We vacate the judgment of the Trial Court.

Susan Sellers vs. Randall Sellers - W2000-01475-COA-R3-CV View
This appeal involves a belated attempt by the appellant, Randall Lee Sellers, to obtain relief from child support obligations based upon a claim that he is not the biological father of the child. For the following reasons, we affirm the judgment of the trial court.

Phillip Page vs. Lucille Page - W2000-01314-COA-R3-CV View
Phillip Page vs. Lucille Page - W2000-01314-COA-R3-CV ( Concur/Dissent) View
This appeal arises from a divorce action to end a twenty-five year marriage. Wife was forty-nine years old and who served as a homemaker for the majority of the marriage. Husband was also forty-nine years old and worked as a sales manager earning approximately $95,000 in salary and a bonus check that varied based upon the profit of his employer. This bonus check was typically $40,000. Wife was granted a divorce on the grounds of inappropriate marital conduct and awarded rehabilitative alimony of approximately $40,000 a year for the next five years, as well as alimony in solido of 25% of Husband's bonus check for the next five years. Wife was also awarded 50% of husband's retirement plan. Wife appealed arguing that she was entitled to an award of alimony in futuro, to a larger yearly alimony award, and that an award of alimony in solido based upon the future earnings of Husband could not be granted. We affirm as modified.

Sandra Allman vs. Hut's, Inc. - W2000-01829-COA-R3-CV View
This appeal arises from the alleged fall of the Appellant outside the Appellee gas station and convenience store. The Appellant brought a complaint against the Appellee in the Circuit Court of Gibson County, alleging that the Appellee negligently maintained its premises which was a proximate cause of the Appellant's injuries. The Appellee filed a motion for summary judgment, alleging that the Appellant was unable to prove that the Appellee owed a duty to the Appellant or breached a duty. The trial court granted the Appellee's motion for summary judgment. The Appellant appeals the grant of summary judgment in favor of the Appellee by the Circuit Court of Gibson County. For the reasons stated herein, we reverse the trial court's decision.

State, ex rel. Jerry Woodall vs. D&L Inc. - W1999-00925-COA-R3-CV View
This is a public nuisance case. The State filed a petition for abatement of a public nuisance against the defendants, the owners and operators of an adult entertainment club. The trial court found that the club constituted a "nuisance" under Tennessee Code Annotated § 29-3-101(a)(2), enjoined the defendants from operating a business on the premises, and entered an order allowing the forfeiture of the defendants' fixtures and property on the premises. The defendants appeal. We affirm in part, reverse in part, and modify. We hold that Tennessee Code Annotated § 29-3-101(a)(2) is not unconstitutionally vague, and affirm the finding that the defendants' place of business constituted a public nuisance. We reverse in part because the trial court's injunctive order goes beyond that which is allowable under the nuisance statute.

In matter D.I.S., - W2000-00061-COA-R3-CV View
This case involves the termination of parental rights. The juvenile court, sua sponte, dismissed the petition to terminate the parental rights of the mother at the end of the petitioner's proof. The petitioner appeals. We affirm, finding that there is sufficient evidence to support the trial court's finding that termination of the mother's parental rights would not be in the child's best interest.

Wright Medical vs. Ortohmatrix Inc. - W2000-02744-COA-R3-CV View
Plaintiff filed a complaint against defendant to collect sums due pursuant to a contract. Defendant filed a motion to compel arbitration asserting that by virtue of a subsequently executed document, exclusive distribution and purchase agreement, arbitration is required because the documents form one contract. The trial court denied the motion for arbitration, and defendant has appealed pursuant to T.C.A. § 29-5-319. We affirm.

Suntrust Bank vs. Steven Dorrough - E2000-01331-COA-R3-CV View
In this action to enforce a Guaranty Agreement executed by defendant, the Trial Judge granted plaintiff summary judgment. Defendant appealed. We affirm.

Dept. of Children's Scvs. vs. M.A.D. - E2000-02501-COA-R3-JV View
The State of Tennessee, Department of Children's Services ("Department") obtained temporary custody of the three minor children of M.A.D. ("Mother") after she was arrested and the children's father was already in jail. A Permanency Plan ("Plan") was developed which required Mother to take several affirmative steps in order to regain custody and provide an appropriate home for her children. When Mother failed to comply with the Plan, the Juvenile Court terminated her parental rights after concluding there was clear and convincing evidence that there had been substantial noncompliance by Mother with the Plan. The Juvenile Court also found clear and convincing evidence that the conditions which led to the children's removal still persisted and prevented the children's safe return to Mother, that there was little likelihood that these conditions would be remedied at an early date so that the children could be returned safely to Mother, and that continuing the parent/child relationship would greatly diminish the children's chances of early integration into a safe, stable and permanent home. The Juvenile Court also concluded there was clear and convincing evidence that termination of Mother's parental rights was in the best interests of the three children. Mother appeals the termination of her parental rights. We affirm.

Clark Earls vs. Shirley Earls - M1999-00035-COA-R3-CV View
This extraordinary appeal involves the efforts of one party to effectuate an opinion of this court which the Tennessee Supreme Court declined to review. On the first appeal, this court reversed portions of the trial court's final decree and remanded the case with specific directions regarding the details of the order to be entered. After the Tennessee Supreme Court denied the wife's application for permission to appeal, the husband asked the trial court to enter an order consistent with the directions in this court's opinion. After conducting two hearings, the trial court declined to enter the proposed order. We have granted the husband's application for an extraordinary appeal because the trial court, by its refusal to enter a judgment consistent with this court's opinion, has so far departed from the accepted and usual course of judicial proceedings that immediate review of its actions is required. We now (1) vacate the trial court's orders filed after March 29, 2001, (2) direct the clerk of the trial court to enter this opinion and the order accompanying it as the final order in this proceeding, and (3) direct that this case be assigned to another judge in the Twenty-First Judicial District for any further proceedings.

Merrimack Mutual Fire Ins. Co. vs. Gloria Batts - M1999-00078-COA-R3-CV View
This appeal involves a dispute between a homeowner and her insurance company regarding the damages to her house caused by the tornado that struck Nashville on April 16, 1998. When they could not agree on the amount of the loss, both parties invoked the insurance policy's provision for the appointment of appraisers. After the parties' two appraisers could not agree on the amount of the loss, the two appraisers selected a third appraiser who eventually agreed with the homeowner's appraiser regarding the amount of the loss. The insurance company filed suit in the Chancery Court for Davidson County, seeking a declaratory judgment that it was required to pay the homeowner less than one-half of the amount of the loss calculated by the two appraisers. Both parties filed motions for partial summary judgment. The trial court granted the insurance company's motion, concluding that the insurance policy's appraisal clause was not an agreement for binding arbitration and that the appraisers had not been empowered to determine whether parts of the claimed damage had been caused by a peril covered by the policy. The homeowner takes issue with both of the trial court's legal conclusions on this appeal. We have determined that the trial court interpreted the insurance policy correctly and, therefore, that the trial court properly concluded that the insurance company was entitled to a judgment as a matter of law.

Katrinka Stalsworth, et al vs. Robert Grummon - M2000-02352-COA-R3-CV View
This appeal involves the dismissal of a patient's medical malpractice complaint pursuant to Tenn. R. Civ. P. 41.02. After the patient voluntarily dismissed her first complaint following opening arguments, the Circuit Court for Sumner County ordered her to pay her surgeon $3,023.85 in discretionary costs. The patient did not pay the discretionary costs she had previously been ordered to pay. After the patient refiled her complaint, the trial court stayed the proceedings on the surgeon's motion and later dismissed the patient's complaint for failure to prosecute and for failure to comply with the court's order directing her to pay the surgeon's discretionary costs. On this appeal, the patient asserts that the trial court erred by dismissing her renewed complaint. We affirm the trial court because the patient had ample warning that her claim was subject to dismissal and had been afforded a reasonable opportunity to comply with the trial court's order directing her to pay the surgeon's discretionary costs.

State Auto Ins. Companies vs. Gordon Construction, Inc., et al - M1999-00785-COA-R3-CV View
This is an insurance coverage case. A commercial general liability insurer filed suit for declaratory judgment to determine whether it had a duty to defend the insured, a construction company. The underlying lawsuit against the insured alleged breach of contract and breach of express and implied warranties in failing to perform work in a good and workmanlike manner. The trial court granted a motion for summary judgment to the insurer, finding that the insurance policy did not require it to defend against the suit. The insured appeals, and we affirm, finding that there was no "occurrence" under the terms of the insurance policy.

Norma Tillman vs. Leo Haffey, et al - M2000-02196-COA-R3-CV View
Plaintiff filed a complaint on August 30, 1999 alleging a cause of action for malicious prosecution and abuse of process arising out of a suit filed against her by defendants. Plaintiff's cause of action accrued when the defendants, as the plaintiffs in the underlying case, voluntarily dismissed their case on September 14, 1998. When plaintiff filed the complaint, summons was issued by the court clerk, but was retained by plaintiff's counsel and returned unserved. An alias summons was issued on November 1, 1999, and defendants were served November 5, 1999. Defendants filed a motion to dismiss, which was granted by the trial court on the ground that the case was barred by the statute of limitations reasoning that the filing of the suit and retaining the process did not toll the running of the statute of limitations. Plaintiff has appealed. We vacate and remand.

Shawn Farien vs. Regina Farien - W2000-00656-COA-R3-CV View
This is a child custody case. The parties and their minor child lived in Tennessee with the father's parents. The mother moved to Georgia with the child to live with her parents. Custody was awarded to the mother, and the father was granted broad visitation rights. The father appeals. We affirm, finding that the custody award is based in large part on the trial court's determinations of credibility and assessment of the parties' demeanor, and finding that the evidence does not preponderate against the award of custody to the mother.

David Eason vs. Melissa Bruce - W2000-01326-COA-R3-CV View
This is a post-divorce child custody case. In its initial decree, the trial court found that neither parent demonstrated sufficient interest or ability to care for the minor children and custody was awarded to the maternal grandparents. Subsequently, the trial court awarded joint custody of the children to the father and the maternal grandparents. Father petitioned for sole custody which the trial court denied. Father appeals. We affirm.

---

Cases posted the week of 05/07/2001
Martin Walker vs. Howard Carlton, et al - E2000-00171-COA-R3-CV View
The Plaintiff, an inmate of the Penal System of this State, sues various prison officials and the American Correctional Association for damages incident to other inmates stealing his property and assaulting him. The Trial Court dismissed the case as to all Defendants. We affirm under the authority granted by Rule 10 of this Court.

Marcus Mooneyham vs. Harold Cates - E2000-01337-COA-R3-CV View
Marcus Mooneyham, former General Sessions Judge of Cocke County, seeks by this suit to recover a mental health commitment supplement which he contends he is entitled to receive by virtue of his position as Juvenile Judge. The Trial Court found adversely, and further found that because he was not acting in good faith he was required to repay the County $8912.94. We affirm the judgment of the Trial Court that he was not entitled to the supplement he claimed and was required to repay the County the sum assessed.

Linda Asher vs. Eugene Asher - E2000-00821-COA-R3-CV View
In this appeal from the Claiborne County Chancery Court the Appellant, Linda Ward Asher, questions whether the Chancery Court erred in granting her an absolute divorce, in failing to award her alimony in futuro, and in failing to require that the Appellee, Eugene Asher, be required to maintain health insurance coverage on her behalf. Mr. Asher questions whether the Chancery Court erred in finding that funds withdrawn by him from a Putnam Investment savings account should be counted against his equitable share of the marital property and in finding that Ms. Asher should be awarded alimony. We affirm the judgment of the Chancery Court as modified and remand for further proceedings, if any, consistent with this opinion. We adjudge costs of this appeal against the Ashers equally.

Jerry Beech Concrete Contractor, Inc. vs. Larry Powell Builders, Inc., et al - M2000-01704-COA-R3-CV View
This is an action by a contractor to receive the balance due under a contract for the construction of two buildings. The owner counterclaimed for damages alleging lack of good workmanship. A principal issue concerned attorney fees, and whether a document purporting to be a contract was, in fact, a contract. We hold that the document proffered by the plaintiff was accepted as a contract by the defendant, and that the attorney fee provision is enforceable.

Tommy Burgess, et al vs. Bill Fuller, d/b/a Bill Fuller Landscaping - M2000-02094-COA-R3-CV View
In this dispute over a landscaping contract, the Circuit Court of Maury County held that the contractor breached the agreement. The defendant contends that the court rewrote the agreement. We disagree and affirm the judgment of the trial court.

State, ex rel Woody Hartley vs. Jennifer Robinson - M2000-01625-COA-R3-CV View
After divorce, Husband was ordered to pay child support to Wife for care of his minor children. Husband was employed as a commercial truck driver by Company. Thereafter, Husband was diagnosed with seizure disorder that required medication to treat. As a result, Husband lost his commercial trucking license as mandated by Federal Regulations. Upon losing his job as a commercial truck driver, Husband accepted a warehouse position with Company for considerably less money. He petitioned the court for a reduction of child support commensurate with his lower salary. The trial court found that he was underemployed and denied the reduction. Husband appealed. Although he failed to submit a transcript or statement of the evidence in the record, the trial court's order contains stipulated facts. We reverse and remand for entry of order reducing child support.

The John Lee Co., Inc. vs. Lamar Haynes, et al - M2000-02407-COA-R3-CV View
The plaintiff, a manufacturers' representative, filed this action for a declaratory judgment that it is not indebted to the defendant for commissions on sales of tee shirts manufactured by Tee Jays Manufacturing Company and sold to Planet Hollywood, in light of the fact that the defendant's sole participation was to arrange a meeting between buyer and seller. The Chancellor found the plaintiff was liable for the commission under a contract theory. We affirm.

Arthur Kerr vs. Christina Kerr - M2000-01730-COA-R3-CV View
The trial court granted the parties a divorce, divided the marital property, and ordered child support, but not alimony. On appeal, the wife argues that the trial court erred in its division of marital property and in its failure to award her rehabilitative alimony. We affirm the trial court.

In re: Estate of Pauline Maddox - M1998-00925-COA-R3-CV View
This appeal involves the testamentary intent of an 89-year-old widow who died leaving a sizeable estate. After one of the decedent's grandsons, acting as her executor, submitted for probate a February 1991 will and a June 1995 codicil, the decedent's surviving daughter filed a will contest proceeding in the Chancery Court for Sumner County, alleging that the will had been procured by the executor's undue influence and that the distribution of the estate should be governed by a 1989 holographic instrument. Following a bench trial, the trial court upheld the validity of the 1991 will and the 1995 codicil. On this appeal, the decedent's daughter asserts that the trial court erred by determining that the 1991 will and the 1995 codicil expressed the decedent's testamentary wishes rather than the 1989 document. We have determined that the evidence supports the trial court's conclusions and, therefore, affirm the judgment.

Krishnalal Patel, et al vs. Dileep Patel - M2000-00583-COA-R3-CV View
The SREE General Partnership was formed for the purpose of owning and managing motel property in Nashville, Tennessee. During the ownership period, the property deteriorated. The partners sued a co-partner for breach of fiduciary duty, claiming that his negligent management of the property was what caused the deterioration and resulting economic loss. The trial court ruled for the defendant. We affirm.

James Pyburn, et al vs. Bill Heard Chevrolet - M2000-02322-COA-R3-CV View
James C. Pyburn ("Plaintiff") filed a complaint styled "Class Action Complaint" against Bill Heard Chevrolet ("Defendant") arising from Plaintiff's purchase of a 1999 Chevrolet van. Plaintiff claims he was told by Defendant that it could arrange financing through General Motors Acceptance Corporation ("GMAC") at competitive rates offered by GMAC. Plaintiff alleges that he did not obtain GMAC's real interest rate, but instead received a "secretly inflated" interest rate, and that Defendant was paid a kickback on the interest rate over and above the lender's real interest rate. Plaintiff sued pursuant to the Tennessee Consumer Protection Act ("TCPA"), T.C.A. § 47-18-101, et seq., and also asserted several common law theories of recovery. At the time of the purchase, Plaintiff and Defendant executed an Arbitration Agreement ("Agreement") covering the claims currently asserted by Plaintiff. Defendant moved to compel arbitration pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. § 2. The Trial Court held that the FAA applied, that the Agreement did not need separate consideration to be enforceable, that it was not an unenforceable adhesion contract, and that TCPA claims in general were amenable to arbitration under the FAA. The Trial Court further held, however, that this particular Agreement was not enforceable because of the unavailability of class action or injunctive relief in an arbitral forum, and because the costs of arbitration were "potentially prohibitive" since Plaintiff's claims were so small. We reverse the Trial Court's holding that the Agreement is not enforceable.

Dept. of Children's Services vs. D.S. - M2000-02380-COA-R3-JV View
The parental rights of the petitioner (Mother) to her child , "R.", born January 29, 1997 during her Mother's incarceration, were terminated upon a finding that statutory grounds therefore were proved by clear and convincing evidence. Weighing very carefully the Mother's constitutional right to care for her child, on the one hand, and the best interests of the child, on the other, we vacate the judgment and remand for further proceedings.

Bobby King vs. City of Gatlinburg - E2000-00734-COA-R3-CV View
The Trial Court refused to entertain plaintiff's action on the grounds there was no justiciable controversy between the parties. We affirm.

Steven Hull vs. Susan Hull and Garth Eddy - E2000-02696-COA-R3-CV View
In this action to recover proceeds on life insurance policies required by a divorce decree for the children, the Trial Judge held the children were entitled to the proceeds, rather than the beneficiary named in the policies. We affirm.

Jack Hutter, vs. Robert Cohen & John Hutter vs. Allen Bray - E1999-01859-COA-R3-CV View
Jack Hutter, vs. Robert Cohen & John Hutter vs. Allen Bray - E1999-01859-COA-R3-CV ( Dissent) View
In these actions charging legal malpractice, the Trial Court granted summary judgment to defendants on the grounds that the defendants' actions did not deviate from the standard of conduct required of them. We affirm.

Anna Williams vs. James Williams, II - E2000-03005-COA-R3-CV View
In this post-divorce case, Anna M. Williams ("Mother") filed a petition against James K. Williams, II ("Father"), seeking a modification of the parties' divorce judgment, which judgment, inter alia, had awarded the parties joint custody of their minor daughter, Ashlyn Brooke Williams (DOB: July 20, 1996). The petition sought an alteration of Father's visitation schedule and an increase in Father's child support obligation. In response, Father filed, inter alia, a petition for change of custody. The trial court found a substantial and material change in circumstances and awarded Father sole custody of Ashlyn. We reverse.

Linda Gage vs. Riley Gage - W1999-01513-COA-R3-CV View
This is a divorce case. The wife filed for divorce approximately fourteen months after she moved out of the marital home. The husband filed an answer and counter-complaint for divorce. The trial court granted the divorce to the wife and awarded her half of the value of the husband's pension and alimony in futuro. Husband appeals. We affirm.

Dana Scott vs. Edward Sellers - W2000-00422-COA-R3-CV View
This is a personal injury and wrongful death case arising from a collision between a pickup truck and a tractor trailer truck. The five-year-old son of plaintiffs Dana Scott and Shane Thurmon died as a result of the accident. The driver of the car was an "on call" employee of his father's business at the time. The plaintiffs sued the driver of the car and his father, alleging vicarious liability under the doctrine of respondeat superior and under the family purpose doctrine. Plaintiff Dana Scott also sued for consortium-type damages for the loss of her son. Although referring to it as a directed verdict, the trial court, pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure, entered an involuntary dismissal in favor of the defendants on the vicarious liability issue, under both respondeat superior and the family purpose doctrine, and on the loss of filial consortium claim. The trial court awarded damages, inter alia, to Dana Scott for the wrongful death of her son and to Carl Fuhs for personal injuries based upon his negligent infliction of emotional distress claim. We hold the following: (1) employer is not vicariously liable under the doctrine of respondeat superior for acts or omissions of "on call" employee when employee is not acting within the course and scope of his employment; (2) the requirements of the family purpose doctrine were met and defendant Donald Sellers, Sr. is vicariously liable under this theory; (3) parents may recover filial consortium damages in wrongful death actions for the death of their child; (4) the trial court's wrongful death award to Dana Scott was supported by the evidence; (5) Carl Fuhs sufficiently established a claim for negligent infliction of emotional distress; and (6) the personal injury award to Carl Fuhs is affirmed.

---

Cases posted the week of 04/30/2001
Karen Stempa, et al vs. Walgreen Co., et al - E2000-02223-COA-R3-CV View
Karen Stempa, et al vs. Walgreen Co., et al - E2000-02223-COA-R3-CV ( Concur) View
Karen and John Stempa ("Plaintiffs") sued several defendants after Karen Stempa allegedly suffered permanent hearing loss when she was prescribed and took Erythromycin. The Complaint was filed on May 1, 1998. Immediately after filing the Complaint, Plaintiffs' original attorney instructed the court clerk not to issue any summonses "yet." No summonses were issued until April 29, 1999, with all but one defendant being served on May 27, 1999. Defendants who were served filed motions to dismiss claiming Plaintiffs failed to comply with the provisions of Rules 3 and 4 of the Tenn. R. Civ. P. and, therefore, the action was not commenced within the applicable statute of limitations. Plaintiffs obtained new counsel. The motions to dismiss were granted by the Trial Court. Once an alias summons was issued and served on the remaining defendant, a similar motion to dismiss was granted by the Trial Court on the same basis. Plaintiffs appeal, arguing that their claims were filed timely because summonses were issued within one year of the filing of the Complaint as provided for by Rule 3 of Tenn. R. Civ. P. We reverse and remand.

Ginger Cheryl Eatherly vs. Dwight Eatherly - M2000-00886-COA-R3-CV View
This post-divorce case involves modification of child support. Following a hearing, the trial court found the father to be voluntarily underemployed and ordered him to pay $200 per week in child support, almost twice the previously ordered amount. Father appeals, contending that the record contains no proof that he is voluntarily underemployed and no proof of his potential income. Because we find the record is insufficient to support the trial court’s findings, we vacate the order and remand for additional findings of fact.

State et al vs. Mary Freeman - M2000-02750-COA-R3-JV View

The Juvenile Court of Dickson County ordered the adoptive mother of a child the court had placed in State custody to refund the special needs adoption subsidy she receives from the State. The mother insists on appeal that the subsidy should have been accounted for by using it as part of her gross income in calculating her child support obligation under the support guidelines. We affirm the order of the juvenile court.

Elizabeth Moxham vs. Eric Crafton, et a l - M2000-00803-COA-R3-CV View
During the trial of a construction dispute, the parties reached a settlement in the hallway of the courthouse, and subsequently announced the terms of their agreement to the trial court. Before the agreed order was entered, however, the plaintiff attempted to withdraw her consent. The plaintiff argues on appeal that the trial court erred by signing and entering the agreed order, and by denying her motion to set it aside. We affirm the trial court.

Charles Sigler d/b/a Laverte's Market vs. Beer Permit Board of the Metropolitan Gov't of Nashville - M2000-01728-COA-R3-CV View
Mr. Cook, a minor, purchased beer from Mr. Sigler after showing his brother’s valid Tennessee Driver’s License. Mr. Sigler’s beer permit was temporarily suspended for violation of a metropolitan code prohibiting the sale of beer to a minor. Mr. Sigler’s appeals, arguing that he could not have done anything more to prevent the sale to a minor and that, accordingly, he should not be penalized. We affirm.

Don Stonecipher vs. Estate of M.E. Gray, Jr., et al - M1998-00980-COA-R3-CV View
This is an appeal from a chancery court jury trial on a dispute arising from a contract to buy a wrecker and salvage yard business for 1.1 million dollars. The purchaser alleged that the seller fraudulently induced him to contract to buy the business because after the parties reached an agreement on the purchase, the seller took items contemplated to be included in the contract without the buyer's knowledge. On the other hand, the seller's estate asserted a breach of contract claim because the note's balloon payment was overdue. After a trial, the jury decided that the seller had concealed or withheld items that the parties contemplated to be part of the contract, that the seller made misrepresentations as to what was to be included in the contract, he knew the misrepresentations were false at the time made, and he intended the buyer to rely on the misrepresentations. The jury decided that, had the buyer known the items were missing, he would not have declined to enter into the purchase at all but, instead, would have negotiated a lower price. Therefore, the court entered a verdict dismissing the buyer's complaint for rescission, awarded him a set-off and entered judgment against him for the balance of the note plus interest minus the set-off. Costs were apportioned between the parties and each party was ordered to pay its own attorney's fees. Both parties appeal. For the reasons below, we affirm the judgment of the trial court in part, vacate in part, and remand.

Murray Body vs. Jim Lamarr - M2000-02111-COA-R9-CV View
Murray E. Body ("Plaintiff") filed this personal injury suit against the owner of a jet ski, Jim Lamarr ("Defendant"). Plaintiff sustained physical injuries while pulling ski ropes into his boat when Defendant's jet ski ran over Plaintiff's ski ropes. Plaintiff had a boating policy ("Policy") with Continental Insurance Company ("Continental") which had uninsured boater limits of $100,000. Defendant had a liability policy with limits of $50,000. Plaintiff contends that his damages exceed Defendant's limits and that his Policy should be interpreted to provide coverage for accidents involving underinsured boaters. Continental filed a Motion to Dismiss, arguing that the Policy's language clearly and unambiguously does not provide coverage for underinsured boaters. The Trial Court treated Continental's motion as a Motion for Summary Judgment and granted the motion. Plaintiff was granted an interlocutory appeal. We affirm.

Martha Langschmidt vs. Carl Langschmidt - W1999-00434-COA-R3-CV View
Martha Langschmidt vs. Carl Langschmidt - W1999-00434-COA-R3-CV ( Concur/Dissent) View
This is a divorce case. The trial court held that the increase in the value of certain assets owned by the husband prior to the marriage, including Individual Retirement Accounts ("IRAs"), was marital property and equitably divided it. The trial court also awarded the wife a portion of her attorney’s fees as alimony. The husband appeals. We affirm in part and reverse in part, holding that the trial court erred when in classifying the increase in value of the husband’s non-IRA assets to be marital property when there was no proof that the wife substantially contributed to the preservation or appreciation of the property. We affirm the trial court’s classification of increases in the husband’s IRAs as marital property, and its equitable division of the marital property. We reverse as to the award to the wife of a portion of her attorney’s fees.

Estate of Velma Russell vs. Knox County - E2000-02692-COA-R3-CV View
The Estate of Velma Monroe Russell, which was substituted as a party Plaintiff after the death of Mrs. Russell after the suit was filed but prior to trial, sues Knox County for injuries to her as a result of an automobile accident at a four-way-stop intersection. The Trial Court found the County was guilty of no negligence proximately causing the accident and the injuries to Mrs. Russell. We affirm.

Paul Crews, et al vs. Hooters Restaurant of Nashville, Inc., et al - M1999-02813-COA-R3-CV View
This appeal involves two shootings during an attempted armed robbery of a restaurant, that left one man dead and one man wounded. The parents of the deceased victim and the wounded victim and his wife filed suit in the Circuit Court for Davidson County against the restaurant and the persons who attempted to rob the restaurant, alleging that the restaurant had negligently failed to use reasonable care to protect its patrons from foreseeable harm. The trial court granted the restaurant a summary judgment and dismissed the negligence claim against it. The plaintiffs, relying on McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891 (Tenn. 1996), assert on this appeal that the trial court erred by granting the restaurant's summary judgment motion. We concur with the trial court's conclusion that the material facts are not in dispute and that the restaurant is entitled to a judgment as a matter of law because it demonstrated that the plaintiffs would be unable to prove an essential element of their case. Accordingly, we affirm the trial court's order dismissing the claims against the restaurant.

First American Trust Co. vs. Franklin-Murray Development Company, L.P. - M1998-00984-COA-R3-CV View
This appeal involves a post-judgment receivership proceeding commenced while the case was pending on appeal. The seller of a large tract of Brentwood property obtained a judgment against the defaulting purchaser in the Chancery Court for Williamson County. While the purchaser's appeal was pending, the seller proceeded to execute on its judgment and requested the trial court to appoint a receiver to protect the interests of the purchaser's creditors. After the trial court appointed a receiver, the purchaser's former law firm filed a claim with the receiver for over $100,000 in unpaid legal expenses. When the seller's judgment against the purchaser was satisfied outside of the receivership proceeding, the trial court granted the receiver's motion to dissolve the receivership without addressing the law firm's claim. The law firm asserts on this appeal that the trial court should not have closed the receivership until its claim was addressed.