Court of Appeals Opinions - 2^nd Quarter 2007

This Page Last Updated: November 05, 2007 at 11:53.19 hours

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Cases posted the week of 06/25/2007
Darrell Honeycutt v. Debbie Ann Honeycutt - E2006-1460-COA-R3-CV View
Anderson County - After approximately five years of marriage, Darrell Honeycutt (“Husband”) sued Debbie Ann Honeycutt (“Wife”) for divorce. The case was tried and the Trial Court entered a Judgment of Divorce, inter alia, awarding the parties a divorce, incorporating the parties’ Marital Dissolution Agreement, and reserving several issues including ones involving the distribution of specific items of real and personal property. After a further hearing, the Trial Court entered an order finding and holding that the couple’s six breeding dogs had a value of $30,000; a Toyota RAV4 (“the Toyota”) had a value of $18,000; Husband was to be awarded the breeding dogs and the Toyota; and the marital residence was to be sold at public auction with Wife to receive the first $48,000 from the sale. Husband appeals to this Court raising issues primarily regarding the valuation and distribution of the breeding dogs and the Toyota. We affirm.

Crystal Lashea Caldwell v. Joshua Randall Hill - E2007-00082-COa-R3-CV View
Cocke County - Father and Mother entered into an agreed permanent parenting plan following their separation in 2004. In 2005, Father requested a modification of the plan to increase his co-parenting time with the parties’ daughter. The petition to modify was filed shortly after the trial court increased his child support from $30 per week to more than $100 per week, and also less than a week after his marriage to his longtime girlfriend. The trial court found that Father’s marriage and the fact that he had quit smoking marijuana were both material changes of circumstance, and that Father should receive equal parenting time with the child. Mother appeals. After careful review, we find that there has been no material change of circumstance justifying reconsideration of the parties’ parenting arrangement. Accordingly, we reverse the trial court’s modification of the parenting plan and remand.

Aaron Burkhart v. Wells Fargo Bank West, N.A., et. al - E2006-01402-COA-R3-CV View
McMinn County - Aaron Burkhart (“Plaintiff”) sued Wells Fargo Bank West, N.A. (“Wells Fargo”), Wilson & Associates, PLLC (“W&A”), and Robert M. Wilson, Jr. (“Wilson”) alleging, among other things, misrepresentation and violation of the Tennessee Consumer Protection Act, § 47-18-101 et seq., in connection with the purchase of real property by Plaintiff at a foreclosure sale. All defendants filed motions for summary judgment, which the Trial Court granted. Plaintiff appeals. We affirm.

Terry Paul, et. al. v. Merit Construction, Inc. - E2006-00839-COA-R3-CV View
Polk County - Terry Paul and Alan Paul (“Plaintiffs”) are the owners and operators of Paul Brothers Construction. Plaintiffs entered into an oral contract with Merit Construction, Inc. (“Defendant”) to provide masonry work on a project on which Defendant was the general contractor. After providing masonry work for several months, Plaintiffs were presented by Defendant with a written subcontract. The written subcontract contained an alternative dispute resolution process which included binding arbitration. After this lawsuit was filed, Defendant filed a motion to stay these proceedings and to compel Plaintiffs to submit to mediation and/or arbitration. The Trial Court concluded that Plaintiffs had not agreed to the terms of the written subcontract and denied the motion. We affirm.

Boyce McCall, Sr., et. al v. Ernest Bennett, et. al - E2006-02396-COA-R3-CV View
Knox County - In this appeal from the trial court’s judgment based upon a jury verdict denying plaintiff’s suit for personal injuries, the plaintiff raises multiple issues and requests that the case be remanded for new trial. We affirm the trial court’s judgment upon our determination that the jury’s verdict was supported by material evidence and that all other issues were waived as a result of the plaintiff’s failure to preserve them by contemporaneous objection or by motion for new trial.

Lester M. Chavez, et. al v. Broadway Electric Service Corp - E2006-02429-COA-R3-CV View
Knox County - The Plaintiffs, Lester M. Chavez, Roger S. Davy, and Judith Chavez, were formerly employed at the U.S. Department of Energy (“DOE”) facility in Rocky Flats, Colorado. The Plaintiffs moved to Tennessee to work at the DOE facilities in Oak Ridge for the Defendant. Mr. Chavez and Mr. Davy were told by the Defendant that there was enough work for them for “ten years.” Mrs. Chavez was promised a job with the Defendant for one year. When the work did not materialize as anticipated, the Plaintiffs brought this action for breach of contract, fraudulent misrepresentation, and promissory estoppel against the Defendant. The trial court, applying the promissory estoppel doctrine, awarded Mr. Chavez damages in the amount of $25,661 and awarded Mr. Davy $31,219 in damages. The trial court found that the Defendant breached an oral employment contract with Mrs. Chavez, and awarded her damages in the amount of $4,463. We affirm the trial court’s factual findings, but disagree with the trial court’s conclusion that the facts support a judgment for Mr. Chavez and Mr. Davy under the promissory estoppel doctrine. Specifically, we hold that the employer’s representations to the Plaintiffs regarding the general condition of the job market in Oak Ridge were too ambiguous and vague to be held as “promises” supporting an action for damages. In the absence of an enforceable employment contract and any finding of misrepresentation or fraud on the employer’s part, we reverse the judgment for Plaintiffs Mr. Chavez and Mr. Davy under promissory estoppel. We affirm the trial court’s judgment awarding Mrs. Chavez damages for breach of an oral employment contract for a one-year period.

City of Brentwood, Tennessee, et al. v. Metropolitan Board of Zoning Appeals, et al. - M2005-01379-COA-R3-CV View
Davidson County - In this case, the City of Brentwood appealed to the Metro Board of Zoning Appeals the Metro zoning administrator’s approval of a permit for a billboard on the basis it was located along a road designated as a scenic route. The board approved the permit, and the trial court denied relief under common law writ of certiorari. Brentwood also raised before the board the issue of compliance with a Metro ordinance establishing minimum distance requirements between billboards. Because of the state of the record, the trial court remanded that issue to the Board. We affirm the trial court’s judgment on the scenic route issue, and we affirm the remand with modification.

Ailene Toliver v. Bobby D. Wall - M2006-00910-COA-R3-CV View
Montgomery County - Trial court ordered foreclosure on a deed of trust finding obligor failed to prove failure of consideration for the lien. We reverse.

Dyersburg Suburban Consolidated Utility District v. The City of Dyersburg, et al. - W2006-01704-COA-R3-CV View
Dyer County - This appeal involves a dispute between a city and a rural water association as to which entity is entitled to provide water service to a proposed subdivision. The rural association has a defined service district in which it is empowered to provide water service, and most of the disputed property lies within the rural association’s boundaries. However, the city annexed the proposed subdivision and now claims that it has the exclusive right to provide water service to the property. The rural association argues that 7 U.S.C. § 1926(b), the Anti-Curtailment Provision of the Consolidated Farm and Rural Development Act, protects its service area and prohibits the city from providing water service to the property. The trial court granted summary judgment to the city, finding the federal statute inapplicable. For the following reasons, we affirm in part, reverse in part and remand for further proceedings.

Deborah Lane vs. William Montgomery, et al - E2006-01643-COA-R3-CV View
Roane County - Deborah Lane filed a complaint against William Montgomery within one year of a three-vehicle automobile accident, in which, according to the complaint, she was injured as a result of the defendant’s negligence. When the plaintiff filed her suit, she secured the service of process and a copy of the complaint on her uninsured motorist carrier, USAA Insurance Company (“USAA”). In his answer to the complaint, Montgomery generally denied any negligence and liability to the plaintiff. Later, in a response to one of the plaintiff’s interrogatories, Montgomery specifically stated that he was not involved in the accident involving the plaintiff. The trial court granted Montgomery summary judgment. Following the grant of summary judgment and some 26 months after the accident, the plaintiff filed an amended complaint substituting an unknown person, “John Doe,” for Montgomery as the sole named defendant. USAA filed a motion for summary judgment, asserting, inter alia, that, since the plaintiff’s claim against “John Doe” was barred by the statute of limitations, her claim against USAA was also barred. The trial court granted USAA’s motion. The plaintiff appeals. We affirm.

Wayne Joiner v. Carole Carter, et al. - M2003-02248-COA-R3-CV View
Davidson County - A member of the Sumner County YMCA was terminated from membership in the organization because of inappropriate sexual comments he allegedly directed toward female staff members. He brought pro se lawsuits against numerous employees of the YMCA, first in United States District Court, claiming that their actions had violated his civil rights, slandered him, invaded his privacy, and caused him humiliation and embarrassment. The federal court dismissed his complaint for lack of jurisdiction. A subsequent complaint in the Circuit Court of Davidson County alleging substantially the same facts was also dismissed, for failure to state a claim for which relief can be granted. Undeterred, the plaintiff then filed a nearly identical complaint in the same court. The trial court dismissed the complaint on the basis of res judicata. We affirm the trial court.

Mary Teresa Basham and William Bennett Collins, Jr., Co-Executors of the Estate of Estelle A. Ray v. Diane Ray Duffer, James F. Ray and Martin Ray - M2004-02704-COA-R3-CV View
Robertson County - Appellants served as the deceased’s attorneys-in-fact, and brought suit against the three parties who previously cared for the deceased. The deceased was an elderly widow with little experience in handling her own money. Appellants alleged that Appellees mishandled the deceased’s funds for their own personal benefit. The trial court found no breach of duty on the part of Appellees, declaring the deceased to have been competent at the time of the dissipation of her funds, and therefore dismissed the case. We affirm in part and reverse in part.

Western Express, Inc. v. Dollar General Corporation - M2005-02580-COA-R3-CV View
Davidson County - A trucking company filed suit to compel a consignee of paper goods to pay for shipping charges after the consignor went into bankruptcy while owing the trucker $750,000 for transporting those same goods. The trucker argued that there is a presumption under both common law and federal statute that a consignee of goods is subject to secondary liability for such charges. The consignee argued that the presumption does not apply under the circumstances of this case and that it had not entered into any contract with the trucker requiring it to make direct payments for shipping. After a hearing, the trial court granted summary judgment to the consignee and dismissed the trucking company’s claim. We affirm the trial court.

Paul G. Summers, in his official capacity as Attorney General and Reporter for the State of Tennessee, et al. v. Creative Learning Child Care Center, Inc., et al. - M2006-01389-COA-R3-CV View
Davidson County - This is an appeal by the plaintiff from a final judgment awarding attorneys’ fees to the defendants’ former counsel. The issue on appeal arises out of the denial of the plaintiff’s Motion for Summary Judgment which was accompanied by a 62 page Statement of Undisputed Material Facts containing assertions of facts grouped into 114 paragraphs with citations to the facts in the record the trial court deemed wholly inadequate. As a sanction for failing to comply with Tennessee Rule of Civil Procedure 56.03, the trial court awarded the defendants attorneys’ fees. Finding that the Tennessee Rules of Civil Procedure do not authorize a monetary sanction for failure to comply with Rule 56.03, we vacate the award of attorneys’ fees.

Shanette Collier Chandler v. Kylan Chandler - W2006-00493-COA-R3-CV View
Shelby County - This appeal arises from a custody dispute involving a minor child. The plaintiff mother filed a complaint for divorce against the defendant father. The parties entered into a marital dissolution agreement as to property and debt division, but they could not come to an agreement on custody for their three-year-old son. A trial was held on the custody and visitation issues. The trial court granted the divorce, named the mother the primary residential parent of the child, and gave the mother full decision-making authority for the child. The parenting plan adopted by the court allowed the father visitation on alternating weekends and holidays, and for four weeks each summer. The trial court awarded the mother the federal tax exemption for the child, as well as $1,500 in attorney’s fees that she incurred litigating the custody issue. The father appeals the trial court’s initial custody decision regarding visitation and decision-making, and the award to the mother of the federal tax exemption and attorney’s fees. We affirm in part, and reverse in part.

Denver & Beverly Thacker v Allan M. Ball & Donnie Ball - E2006-01876-COA-R3-CV View
Hawkins County - Plaintiffs alleged that defendant Alan Ball’s dog had injured Denver and sought damages. Defendant denied owning the dog and averred that his son, Donnie Ball, owned the animal. Plaintiffs amended their complaint adding Donnie Ball as a defendant, and further averred that Donnie Ball was acting as agent for Alan in caring for the animal. The Trial Court granted Alan Ball summary judgment on the issue of agency and in a trial a jury returned a verdict in Alan Ball’s favor but awarded damages to plaintiffs against Donnie Ball. The Trial Court granted an additur to the damage award and plaintiffs appealed. We affirm the Judgment of the Trial Court.

State of Tennessee Department of Human Services v. Priest Lake Community Baptist Church, et al. - M2006-00302-COA-R3-CV View
Davidson County - This case involves a church that operates a “Bible School” program on weekdays for approximately twelve hours, which cares for many children. The church operated its Bible School for four years without a license, until the Department of Human Services investigated and informed the church of Tennessee’s child care licensing requirements. The church still did not seek a license, and it continued to operate its Bible School despite an injunction prohibiting the church from operating without a license. The church and certain members were eventually held in contempt of the court’s injunction. The trial court entered a permanent injunction preventing the church from operating its Bible School unless or until it obtained a license. The church appeals, claiming that the licensing requirement and certain regulations applicable to licensed child care centers violate its constitutional right to free exercise of religion. For the following reasons, we affirm.

Morris A. Ray v. Jean A. Ray - M2006-02257-COA-R3-CV View
and
Morris A. Ray v. Jean A. Ray - M2006-02709-COA-R3-CV
Davidson County - Husband appeals the dismissal of his Complaints for Divorce. In a confusing series of pleadings created by Husband, his two separate Complaints for Divorce were dismissed. One was dismissed for failing to pay the filing fee and the other for procedural deficiencies. We affirm the dismissal of the matter in which Husband failed to pay the requisite filing fee. We, however, reverse the dismissal of the first Complaint for Divorce, which was dismissed for alleged procedural deficiencies, and remand for further proceedings.

Cases posted the week of 06/18/2007
Metropolitan Government of Nashville & Davidson County, TN v. Metro Employee Benefit Board and Aubrey Clay Whitworth - M2006-00720-COA-R3-CV View
Davidson County - In this administrative appeal, the Metropolitan Government of Nashville and Davidson County (Metro) challenges the lower court’s affirmance of a grant of “in line of duty” (IOD) benefits to a park ranger. The award of IOD benefits required the park ranger’s hypertension to have been caused by his work conditions and ultimately depended upon the applicability of the Tennessee Heart and Hypertension Act (the Act) to the park ranger’s case. The pertinent section of the Act establishes a rebuttable presumption of causation for law enforcement officers suffering disability, illness, or death from heart disease or hypertension. Throughout the proceedings, including this appeal, Metro has contended that the Act does not apply to the park ranger because he is not employed by the Metro Police Department as required by the statute. The lower court ruled that, for purposes of the Act, the park ranger met this requirement because his commission as a special policeman remained under the control of the Metro Police Department and because his job duties and training were equivalent to those of Metro police officers. We affirm.

Peggy Gaston vs. Tennessee Farmers Mutual Insurance Company - E2006-01103-COA-R3-CV View
McMinn County - This case involves issues pertaining to under-insured motorist coverage, the Tennessee Consumer Protection Act (“the TCPA”), the insurance bad faith statute, and the subject of prejudgment interest. In an earlier appeal, the Supreme Court reversed the trial court’s judgment directing a verdict for the insurance company at the conclusion of the plaintiff’s proof. In doing so, the High Court held that there was evidence from which a jury could reasonably conclude that the insurance company had waived the subrogation provisions of the plaintiff’s policy. The Supreme Court also held that issues relating to the TCPA and the bad faith statute were for the trier of fact. On remand, the parties waived a jury and the case proceeded to trial before the court. At the conclusion of the trial, the court (1) found that the plaintiff’s insurance company had waived the subrogation provisions of the policy precluding it from asserting non-compliance with those provisions as a defense to the plaintiff’s claim for under-insured motorist coverage; (2) awarded the plaintiff $25,000 based upon (a) the under-insured motorist coverage of the policy and (b) the insurance company’s violation of the TCPA; (3) granted the plaintiff a judgment for attorney’s fees; (4) found that the insurance company was not guilty of bad faith; (5) denied the plaintiff’s request for treble damages; and (6) refused to award prejudgment interest. The insurance company appeals. Both parties raise issues. We reverse the trial court’s refusal to award prejudgment interest. In all other respects, the judgment of the trial court is affirmed. Furthermore, we hold that the plaintiff is entitled to her reasonable attorney’s fees and costs associated with this appeal.

Marguerite Evans Chitwood Akers v. Michael Todd Akers - M2006-01130-COA-R3-CV View
Williamson County - In this divorce proceeding, both parties appeal the trial court’s classification and division of the marital estate. Wife also appeals the trial court’s failure to award her an annulment. The judgment of the trial court is affirmed in all respects.

Smith Bros, Inc. v. Union City Insurance Agency, Inc., et all - W2006-02097-COA-R3-CV View
Obion County - The trial court awarded summary judgment in favor of Defendants in this negligence action. We affirm.

John Ruff v. Raleigh Assembly of God Church, Inc. - W2006-01255-COA-R3-CV View
Shelby County - On remand pursuant to Tennessee Code Annotated § 27-3-128, the trial court awarded summary judgment to Defendant with respect to Plaintiff’s claim for assault. We affirm.

Richard Coburn Mercer vs. Marilyn Lucretia Hadley - E2006-00900-COA-R3-CV View
Hamilton County - This is a post-divorce case. Richard Coburn Mercer (“Husband”) filed a petition seeking a reduction in his alimony obligation to his former spouse, Marilyn Lucretia Hadley (“Wife”). She filed a counterclaim seeking a judgment for an alimony arrearage. She also sought other relief. The trial court denied Husband’s petition and awarded Wife an arrearage of $2,000. Wife appeals, asserting that the trial court erred (1) in allowing Husband a $6,000 credit against his $7,975 alimony arrearage; (2) in failing to decree that she was entitled to an equitable division of an employment severance package that Husband started receiving shortly after the parties’ divorce; and (3) in the taxing of a special master’s fee and in failing to tax Husband with the cost of a transcript of the hearing before the master. Husband, on the other hand, argues that the trial court erred in awarding Wife a $1,500 attorney’s fee. He also seeks damages for a frivolous appeal. We modify in part, reverse in part, and affirm in part. We reject Husband’s contention that Wife’s appeal is frivolous in nature.

Joann A. Boyatt v Boyce Wayne Boyatt, et al - E2006-01462-COA-R3-CV View
Scott County - The issue we are confronted with in this case is whether the trial court properly dismissed a divorce case, thus leaving the parties married. Wife filed a complaint for divorce, alleging grounds of inappropriate marital conduct and irreconcilable differences. Husband filed a counter-complaint in which he requested a divorce based on inappropriate marital conduct, irreconcilable differences, and adultery. At trial, both parties admitted that they had committed adultery. The trial court continued the case for three weeks to give Husband and Wife an opportunity to divide the marital estate themselves, rather than having the trial court perform the task. However, the parties were unable to reach an agreement, and, at the next court date, Wife moved to dismiss both her complaint and Husband’s counter-complaint. The trial court granted Wife’s motion and dismissed the case. Husband appeals. After careful review, we find the trial court erred in dismissing the divorce action. We vacate and remand for entry of an order declaring the parties divorced on the ground of inappropriate marital conduct.

Michael Rowdy Echols v Joyce Butler Echols - E2006-02319-COA-R3-CV View
Knox County - In this divorce case, Husband argues that under the doctrine of judicial estoppel, the trial court was precluded from awarding Wife spousal support in excess of the amount she listed as the value of her divorce settlement in the bankruptcy schedules she signed under oath and filed over two years prior to the divorce trial. Husband also argues that the trial court erred in the division of marital property and in awarding Wife transitional alimony in the amount of $500 per month for one year and attorney’s fees in the amount of $50,250. In the absence of evidence that the prior statement of value in Wife’s bankruptcy schedules was willfully false, we hold that the doctrine of judicial estoppel is not applicable in this case. We further hold that the trial court’s division of marital property and award of transitional alimony was equitable and was supported by the evidence. However, we hold that the grant of attorney’s fees to Wife in the amount of $50,250 was excessive and should be reduced to $15,000. Accordingly, the judgment of the trial court is affirmed in all respects, except that the award of attorney’s fees to Wife is reduced to $15,000.

Michael & Sherry Clawson, et al v Michael L. Burrow, et al - E2006-02099-COA-R9-CV View
Carter County - Defendant who had been sued in tort sought summary judgment on the ground that plaintiffs had accepted Worker’s Compensation benefits. The Trial Court refused to grant summary judgment and this Court granted an interlocutory appeal. We affirm the ruling of the Trial Court and remand for further proceedings.

Kathy Williams Hicks v. Roger Carl Hicks - M2006-00082-COA-R3-CV View
Davidson County - In an action for divorce, Husband appeals the trial court’s divorce award, the division of the marital estate, and the award of attorney’s fees and court costs. Husband also alleges that the trial court was prejudiced against his attorney. We affirm the decision of the trial court and find that Husband’s appeal was frivolous, thus warranting the award of damages.

Cases posted the week of 06/11/2007
Trina Green v. James G. Neeley, et al. - M2006-00481-COA-R3-CV View
Maury County - Claimant appeals the denial of her claim for unemployment benefits, arguing that the denial was not based on substantial and material evidence since the only proof of work-related misconduct offered by her former employer was hearsay. We reverse the judgment of the chancery court, finding that although the hearsay evidence was admissible, the testimony was uncorroborated due to the failure of the unemployment agency to maintain a proper record. Thus, we find that the former employer failed to present substantial and material evidence sufficient to support the denial of Claimant’s unemployment benefits.

Cydnie Browning O'Rourke v. James Patrick O'Rourke - M2006-01071-COA-R3-CV View
Williamson County - The trial court disqualified a law firm representing the wife in post-divorce proceedings. An attorney who had represented the husband joined the firm, which later began representing the wife. It was not disputed that the attorney who had represented the husband was disqualified from representing the wife. The trial court imputed this disqualification to the attorney’s new firm. We affirm the trial court’s order.

Marvin M. Boren, as husband of Dorothy Faye Boren v. Mark T. Weeks, M.D., d/b/a Emergency Medicine Associates and Sterling - M2007-00628-COA-R9-CV View
Warren County - This Tenn. R. App. P. 9 interlocutory appeal concerns a hospital’s liability for the alleged negligence of an emergency room physician. The trial court granted the hospital summary judgment as to all claims except those alleging an ostensible or apparent agency relationship between the physician and the hospital. Because the steps taken by the hospital to disavow that the physician was an agent of the hospital were sufficient to preclude the plaintiff’s claims based on apparent agency, we reverse the trial court’s order denying summary judgment.

Amanda Lynn DeWald, and husband, Thomas B. DeWald v. HCA Health Services of Tennessee, Inc., d/b/a Stonecrest Medical Center, and Adrian Lamballe - M2006-02369-COA-R9-CV View
Rutherford County - This Tenn. R. App. P. 9 interlocutory appeal concerns a hospital’s liability for the alleged negligence of a radiologist with staff privileges at the hospital, based upon the theory of apparent agency. The trial court overruled the hospital’s motion for summary judgment on the issue of apparent agency, but granted the hospital permission to appeal pursuant to Tenn. R. App. P. 9. Because the steps taken by the hospital to disavow that the radiologist was an agent of the hospital were sufficient to preclude the plaintiffs’ claims based on apparent agency, we reverse the trial court’s order denying summary judgment.

Alvin King v. Shelby Co. Gov't Civil Service Merit Bd - W2006-02537-COA-R3-CV View
Shelby County - This is the second appeal of a case involving the termination of a county employee. The petitioner was a deputy jailor for the County Sheriff’s Department. His employment was terminated because he failed to report an injured inmate. The county’s administrative board upheld the termination. The petitioner then filed a petition for writ of certiorari in the trial court. The trial court denied the writ, and the petitioner appealed. In the first appeal, the trial court’s order was vacated and the cause was remanded for reconsideration under the standard of review set forth in the Uniform Administrative Procedures Act, see T.C.A. § 4-5-322. On remand, the trial court entered a revised order, affirming the termination. The petitioner now appeals the revised order. We affirm, finding that the petitioner received a fair hearing before the administrative board and that the board’s decision was supported by substantial evidence.

St of TN, ex rel Sullivan County v Delinquent Taxpayers - E2005-02561-COA-R3-CV View
Sullivan County - This case involves a tax sale in Sullivan County, Tennessee. The Trial Court found and held, inter alia, that the assignment of the right to redeem was for nominal value and to allow the assignment would amount to fraud on the Probate Court and creditors of the deceased owner’s estate. No transcript or statement of the evidence was included in the record on appeal. We affirm.

Bobby Reinhardt vs. Wanda Neal, et al - E2006-02438-COA-R3-CV View
Hamblen County - This is an election contest case brought by Bobby Reinhardt (“Reinhardt”) seeking to have the election for Hamblen County Commissioner, District 4, set aside on the basis that there were two illegal votes and those two votes were equal to the margin by which his opponent won the election. Following a hearing and a recount, Reinhardt’s opponent was declared the winner by the Trial Court. Reinhardt appeals, and we affirm.

Wayne's Construction, Inc. vs. William Jones, et al - E2006-00535-COA-R3-CV View
Knox County - William and Patricia Jones (the “Homeowners”) contracted with Wayne’s Construction, Inc. (“Wayne’s Construction”) to build the Homeowners a new house. During construction, the Homeowners encountered numerous significant problems with the quality of the construction, including problems with the structural integrity of the house. The Homeowners eventually discharged Wayne’s Construction. Wayne’s Construction filed this lawsuit seeking over $23,000 it claimed was earned prior to its being discharged. The Homeowners filed a counterclaim seeking a significant amount of compensatory damages which they claimed resulted from the shoddy construction. Following a trial, the Trial Court dismissed the complaint filed by Wayne’s Construction and entered a judgment for the Homeowners for $139,250 and then trebled this amount pursuant to the Tennessee Consumer Protection Act. The only issue on appeal concerns whether the proof preponderates against the Trial Court’s determination as to the amount of damages incurred by the Homeowners. We conclude that it does not and affirm the judgment of the Trial Court.

Cases posted the week of 06/04/2007
In Re: Conservatorship of Gladys R. Burchard, et al vs. Ralph o. Burchard - E2006-01252-COA-R3-CV View
Hamilton County - Petitioner intervened in this action, averring that the conservator for her mother had died and asked that she be appointed conservator of her mother. The Trial Court appointed a successor conservator and ruled that petitioner had no standing to contest the conservatorship and to be appointed conservator since she was a non-resident of the State. On appeal, we affirm the Judgment of the Trial Court.

In Re: Estate of G. Wallace Creswell, Oral Ruth Creswell vs. James Stewart Creswell - E2006-01741-COA-R9-CV View
Blount County - In this Estate, the parties in open court announced the terms of settlement between them of the entire Estate. Appellant sought to set aside the settlement on the grounds of duress, but after an evidentiary hearing the Trial Court refused to set aside the settlement. On appeal, we affirm.

Christy L. Taylor v. Randall Robinson, Jr. - M2006-00109-COA-R3-JV View
Rutherford County - The mother of a twelve year old boy filed a petition to establish the paternity of the child. A DNA test confirmed that the man named in the petition was indeed the biological father, and he agreed to pay temporary child support during the pendency of the case. The mother asked the court to order the father to pay retroactive child support back to the date of the child’s birth, in accordance with the child support guidelines. After a hearing, the trial court decided that a deviation from the guidelines was warranted because of the mother’s failure to inform the father of his possible paternity prior to filing the legitimation petition. The court accordingly ordered that retroactive support be paid only from the date of the filing of the petition. We affirm the trial court, but remand this case so the court can state in its order the “the total amount of retroactive support that would have been paid retroactively to the birth of the child, had a deviation not been made by the court,” as is required by Tenn. Code Ann. § 36-2-311(a)(11)(F).

James Franklin Brooks v. Sheila Brooks Travis - M2005-00768-COA-R3-CV View
Lawrence County - Mother appeals the trial court’s decision to modify the parties’ permanent parenting plan. The trial court modified the parties’ parenting plan after Mother remarried and moved out of state. Mother contends the facts do not support a finding of a material change in circumstances. Finding that the facts support the trial court's finding of a material change in circumstances and the determination that the modification was in the best interests of the children, we affirm.

WATCO, a joint venture comprised of Wayne Todd and Wilson Holdings, LP v. Pickering Environmental Consultants, Inc., a TN Corporation - W2006-00978-COA-R3-CV View
Shelby County - The plaintiff, a real estate development company, conditionally agreed to purchase real property from a trustee bank if the bank first obtained a satisfactory “Phase I” environmental site assessment of the property. The trustee bank hired the defendant environmental consulting company to perform a Phase I environmental site assessment. After performing an assessment, the defendant prepared a report in which it represented that it had conformed with the applicable professional standard in its assessment, that it had not detected any hazardous materials or environmental concerns at the subject property due to current or past uses of the property, that it had not identified any significant environmental concerns in the surrounding area of the subject property, and that it did not recommend further environmental review of the subject property. The plaintiff purchased the subject property in 1995. During residential development of the subject property in 2004, the plaintiff discovered the remains of a municipal garbage dump which had previously existed adjacent to the subject property, and which extended under a portion of the subject property. The plaintiff had the garbage removed and the land filled, and development was delayed as a result. The plaintiff development company sued the defendant environmental consulting company, alleging professional negligence and negligent misrepresentation. A bench trial was held, and the trial court entered judgment in favor of the defendant. For the following reasons, we affirm.

State of Tennessee ex. rel., C. M. and J. J. v. L. J. - M2005-02401-COA-R3-JV View
Warren County - The sole issue on appeal is whether a parent who is incarcerated for the commission of a crime is willfully or voluntarily unemployed for purposes of child support. The State of Tennessee filed a petition to set child support while the parent was incarcerated relying on Tenn. Comp. R. & Regs. § 1240-2-4-.04(3)(d)(ii)(2005), which provides that “any intentional choice or act that affects a parent’s income” constitutes willful underemployment or unemployment. The trial court, relying on Pennington v. Pennington, No. W2000-00568-COA-R3-CV, 2001 WL 277993, at *4 (Tenn. Ct. App. Mar. 14, 2001), denied the petition to set child support for the period the parent was incarcerated. We affirm.

Virginia Dell Person v. James R. Wilson, et al., and Coffee County, Tennessee, et al. - M2006-00873-COA-R3-CV View
Montgomery County - This appeal arises from a two-car accident at the intersection of two county roads in Coffee County. The sixteen year-old driver of one of the two vehicles and his parents and sister, who were passengers in his vehicle, filed suit against the County for injuries they sustained in the accident, contending the County was at fault for failing to properly maintain the stop sign and vegetation at the intersection. The trial court attributed 50% of the fault to the County and 50% of the fault to the sixteen year-old driver. Because he was 50% at fault, the sixteen year-old driver was not awarded damages against the County; however, his parents and sister were awarded judgments against the County for 50% of their damages. On appeal, the County contends the parents are barred from recovering against it due to their negligence and negligent entrustment. The County also contends his sister was negligent for riding in the vehicle. We affirm.

Bradford Jason Lewis v. NewsChannel 5 Network, L.P., et. al. - M2005-00458-COA-R3-CV View
Davidson County - This appeal involves a television news story about the discipline of a high ranking official of the Metropolitan Nashville Police Department who interceded with a subordinate to prevent his brother-in-law’s arrest. Following the broadcast, the police official and his brother-in-law filed separate lawsuits against the television station and three of its employees in the Circuit Court for Davidson County seeking damages for libel and false light invasion of privacy. The televison station and its employees filed a motion for summary judgment based on the common-law fair report privilege and on its defense that the heightened “actual malice” burden of proof applied to all claims. In response, the police official’s brother-in-law asserted that he should not be held to the “actual malice” standard because he was a private person and because the news story involved a matter of purely private concern. The trial court granted the summary judgment and dismissed the complaints filed by the police official and his brother-in-law. With specific regard to the police official’s brother-in-law, the court determined that the television station and its employees were shielded by the fair report privilege. It also concluded that the police official’s brother-in-law was not a public figure for the purpose of his libel claim but that he had failed to demonstrate that he would be able to carry his burden of proof to establish a simple negligence claim against the television station and its employees. The court also concluded that the actual malice burden of proof applied to the false light invasion of privacy claim and that the police official’s brother-in-law had failed to establish that the television station and its employees had acted with actual malice. Only the police official’s brother-in-law appealed. He asserts that the trial court erred by applying the fair report privilege and by concluding that he could not successfully prove that the television station and its employees had been negligent in their investigation and broadcast of the news story. We have determined (1) that the trial court erred by holding that the fair report privilege applies in this case; (2) that the police official’s brother-in-law is a limited purpose public figure and, therefore, cannot recover damages unless he can prove that the television station and its employees acted with actual malice; and (3) that the police official’s brother-in-law cannot prove that the television station and its employees acted with actual malice in the investigation and broadcast of the news story.

James W. Clark, Jr. v. Wayne Medical Center and Hubert Langley, M.D. - M2005-00699-COA-R3-CV View
Wayne County - Inmate filed medical malpractice action against Hospital and Doctor alleging that Defendants negligently diagnosed and failed to treat his fractured mandible. The trial court granted Defendants’ motions for summary judgment. Inmate appeals the dismissal of his Complaint against Doctor and other related errors. We affirm the judgment of the trial court in all respects.

Jerry L. Johns v. William Dalton, et al. - M2005-01784-COA-R3-CV View
Davidson County - The trial court dismissed Petitioner’s petition for writ of certiorari. We affirm.

Cases posted the week of 05/28/2007
Jennifer (Crum) Jones vs. Johnny L. Crum - E2006-02420-COA-R3-CV View
Greene County - Mother and Father were divorced in 2001, at which time they agreed to share custody of their two children on an alternating week basis. In 2006, Mother filed a petition to modify the decree by naming her primary residential parent and increasing her parenting time. Following mediation, the parties submitted a mediated agreement and Temporary Parenting Plan, which substantially increased Mother’s parenting time, to the trial court for approval. The trial court refused to enter the agreement, primarily because it did not provide for child support in accordance with this state’s Child Support Guidelines. Following a hearing, the trial court denied Mother’s petition, finding that there was no material change in circumstance that would justify a change in custody. Mother appeals. After careful review, we find no error and affirm.

Upper Norris Conservation Club, Inc. vs. Town of Cumberland Gap - E2006-01963-COA-R3-CV View
Claiborne County - Upper Norris Conservation Club, Inc. (“the Club”), a private club in Cumberland Gap, Tennessee (the “Town”), applied to the Town’s beer board for a permit to sell beer in its restaurant. The board denied the Club’s application on the ground that the Town’s beer ordinance limited the number of active beer permits to three and that no permits were then available. The Club appealed to the Chancery Court for Claiborne County, which, in a de novo hearing, ordered the issuance of the beer permit, finding that there was one beer permit available and that Cumberland Gap had shown no reason why the permit should not be issued to the Club. The Town appealed the Chancery Court’s order. After careful review, we affirm.

Nanci I. Holden vs. Paul D. Holden - E20060-00902-COA-R3-CV View
Hamilton County - This is a post-divorce case. Paul D. Holden (“Husband”) filed a petition against his former spouse, Nanci I. Holden (“Wife”), seeking to modify the parties’ residential parenting plan pertaining to their minor children. Around the same time, the Department of Children’s Services (“DCS”) received an anonymous referral regarding the children’s “safety and possible sexual abuse” at Wife’s residence. The trial court subsequently appointed a guardian ad litem for the children. The court found, as was recommended by the guardian ad litem, that Husband was entitled to more parenting time with the children. The court also found that there was no foundation for the complaint made to DCS regarding the children. The court ordered Husband to pay the fees of the guardian ad litem. Husband appeals that order. We affirm.

Cherie D. Baird Teague vs. Steven Paul Teague - E2006-02386-COA-R3-CV View
Campbell County - At an earlier time, the trial court granted Cherie D. Baird Teague (“Wife”) a legal separation from Steven Paul Teague (“Husband”). Five years later, Husband filed an “Answer and [Counterclaim]” in the legal separation proceeding seeking an absolute divorce. Wife filed a motion to dismiss the counterclaim predicated upon her assertion that both of the parties were then living in a different county. The trial court granted the motion. Husband appeals. We affirm.

Allen W. Hughes v. TN Department of Corrections - M2005-01254-COA-R3-CV View
Davidson County - Inmate filed petition for declaratory judgment under the Uniform Administrative Procedures Act (UAPA) challenging the legality of the Tennessee Department of Correction’s policy for conducting urinalysis testing of inmates. The chancery court dismissed Inmate’s petition determining that the challenged policy was not subject to declaratory action under the UAPA. The judgment of the chancery court is affirmed.

Anthony Adams v. TN Department of Corrections - M2005-00471-COA-R3-CV View
Hickman County - A prisoner filed a petition for certiorari in the Davidson County Chancery Court, seeking review of the actions of the prison disciplinary board. The court found that the action had been filed in an improper venue and transferred the matter to the Hickman County Circuit Court, pursuant to Hawkins v. Tenn. Department of Correction, 127 S.W.3d 749 (Tenn. Ct. App. 2002). The Hickman County Circuit Court dismissed the petition on several grounds, including the petitioner’s failure to file an affidavit with the court listing every lawsuit or claim previously filed by the inmate, together with specific information about each of those filings, as is required by Tenn. Code Ann. § 41-21-805. We affirm the trial court.

Mark A. Noblin v. Chad P. Christiansen - M2005-01316-COA-R3-CV View
Rutherford County - Defendant appeals the trial court’s finding that he breached an oral contract to develop a residential project and committed fraud. The parties presented different versions of their arrangement, and the trial court found the defendant lacked credibility. The evidence supports the trial court’s determination that the parties had an oral agreement to build a house on a residential lot and split the profits. The trial court’s holding that the defendant committed fraudulent acts to deprive the plaintiff of his interest in the property is also supported by the evidence. We affirm.

Elonia Cantrell v. Michael M. Williams - M2005-00413-COA-R3-CV View
Warren County - The trial court found the defendant guilty of contempt “by the preponderance of the evidence” for violating a protective order and sentenced him to five days in jail. We reverse because the trial court applied the wrong standard of proof.

Matthew Flory & Christi Flory v John Arnold Fitzgerald - E2006-02077-COA-R3-CV View
Rhea County - Plaintiffs purchased property from defendant by Warranty Deed which stated the property contained 15 acres. Plaintiffs subsequently learned in litigation with a neighbor over the boundary line, that the parcel only contained 10.66 acres. Plaintiffs then filed this action against defendant to recover damages and the Trial Court held that plaintiffs were entitled to damages under the warranties in the Deed in the amount of $6,660.00 for the shortage of acreage plus costs and the judgment they incurred in the boundary line dispute with their neighbor. On appeal, we affirm the Judgment of the Trial Court.

Donna Funk v Target National Bank/Target Visa - E2006-02010-COA-R3-CV View
Knox County - In this suit on a credit card debt, the Trial Court granted plaintiff summary judgment on the amount claimed. On appeal, we affirm.

Diana B. Hannahan v Terry Q. Hannahan - E2006-02188-COA-R3-CV View
Cumberland County - The trial court held Husband in contempt because he failed to comply with the terms of a post-divorce agreed order which modified the terms of the divorce decree regarding the disposition of the marital residence. On appeal, Husband argues that the agreed order was void because the trial court was without jurisdiction to modify the divorce decree after it became final. We hold that the agreed order, which was a modification of the divorce decree by the parties, was valid and enforceable. Accordingly, the trial court did not err in enforcing the terms of the agreed order by holding Husband in contempt of court for noncompliance with the order.

Charles Smith, Executor of the Estate of Ethel Rogers Smith v Jerry Smith - E2006-01732-COA-R3-CV View
Hamblen County - The issue in this case is whether the trial court erred in denying the plaintiff’s Tenn. R. Civ. P. 60.02 motion for relief from judgment. Following a bench trial and judgment in favor of the defendant, a third party provided additional materials pursuant to an agreed discovery order, which were not previously disclosed to the parties before trial. The plaintiff filed a motion pursuant to Rule 60.02, requesting that the judgment be set aside based on this newly discovered evidence. The plaintiff also argued that the doctrines of equitable estoppel and judicial estoppel should be applied to grant relief from the judgment. The trial court denied the motion, and the plaintiff appealed. After careful review, we find that the trial court incorrectly applied the law in deciding on the plaintiff’s Rule 60.02 motion. Therefore, we vacate and remand.

Kenneth Buckner, et al v Charles Yarber - E2006-00475-COA-R3-CV View
Bradley County - Kenneth Buckner and his wife, Brenda Buckner, and Eugene Buckner and his wife, Linda Buckner, sued Charles Yarber seeking, among other things, to reform or rescind certain deeds pertaining to real property located in Bradley County, Tennessee. The case was tried without a jury and the Trial Court entered an order finding and holding, inter alia, that certain deeds from Charles Yarber and Pearl Yarber to Kenneth and Brenda Buckner, and to Eugene and Linda Buckner were void and were set aside, and that fee simple title was vested in the heirs of Anderson Yarber. All parties filed motions to alter or amend the judgment. After hearing argument on the motions to alter or amend, the Trial Court entered an order finding and holding, inter alia, that fee simple title vested in the heirs of Anderson Yarber per capita, that the property at issue had been reduced by a valid conveyance of 11.3 acres, and that certain deeds from Pearl Yarber to Charles Yarber were set aside. All parties appealed to this Court. We modify the Trial Court’s order, in part, to show that a one-half undivided interest in the 57.5 acre tract at issue vested in the heirs of Anderson Yarber by representation. We reverse the Trial Court’s order, in part, and hold that the deeds from Pearl Yarber to Charles Yarber were valid conveyances, as reformed, and are not to be set aside, and we further hold that the 57.5 acre tract was not reduced by a conveyance of 11.3 acres. We further affirm the Trial Court’s order, in part, holding that the deeds from Pearl Yarber and Charles Yarber to Kenneth and Brenda Buckner, and to Eugene and Linda Buckner were void and are set aside. We remand this case to the Trial Court for a partition of the 57.5 acre tract pursuant to this Opinion.

Danny R. King v. Tennessee Board of Paroles - M2005-02821-COA-R3-CV View
Davidson County - Danny R. King (“Plaintiff”) committed the offenses of aggravated kidnapping and aggravated rape in 1981 and was sentenced to two concurrent life sentences. Plaintiff first became eligible for parole in 2004. The Tennessee Board of Paroles (the “Board”) denied parole. After unsuccessfully appealing the parole denial administratively, Plaintiff filed a petition for writ of certiorari with the Trial Court. Plaintiff’s primary argument is his claim that the Board improperly applied a version of the statute governing parole of sex offenders which was amended after he committed the crimes. Plaintiff claims the version of the statute as it existed when he committed the crimes should have been applied and application of the statute as amended resulted in an ex post facto violation. The Trial Court determined there was no ex post facto violation and dismissed the petition. We affirm.

Patrick McGee v. Timothy Best, Robert Frank, McGee, Best, Frank and Ingram, LLC and Ingram Entertainment, Inc. - M2005-02631-COA-R3-CV View
Davidson County - The plaintiff filed this action against a limited liability company and some of its members following the termination of his membership in and employment with the company. This is the third lawsuit filed by him arising out of the same set of facts. The plaintiff filed a notice of voluntary dismissal in this third case – a dismissal which the trial court ultimately found to be an adjudication on the merits. The court awarded the defendants a judgment against the plaintiff in the amount of $2,475 for fees and costs associated with their defense of this action. The plaintiff appeals this monetary award. We reverse.

Denise Elizabeth Bailey Price v. Gregory Ross Price - M2005-02704-COA-R3-CV View
Sumner County - Denise Elizabeth Bailey Price (“Wife”) filed an amended complaint seeking a legal separation from Gregory Ross Price (“Husband”). Husband responded with a counterclaim requesting an absolute divorce. Following a bench trial, the court declared the parties divorced and awarded Wife “transitional” alimony in a gross amount of $1,821 per month for 36 months. The trial court also decreed that each party would be responsible for the party’s own attorney’s fees. Wife appeals, challenging the trial court’s failure to grant her a legal separation. Wife also raises an issue with respect to the type and amount of alimony awarded by the trial court. She also challenges the trial court’s refusal to award her any portion of the fees of her counsel. We modify the trial court’s alimony award to make it an award of alimony in futuro to terminate upon the death or remarriage of Wife. The judgment of the trial court, as modified, is affirmed.

Thomas G Erickson v Ruth Christine Erickson-Mitchell - M2006-00895-COA-R3-CV View
Williamson County - In this divorce action, Husband appeals the trial court’s decision to invalidate the parties’ Prenuptial Agreement and the decision to award alimony in the form of attorney’s fee to Wife. The trial court found that Husband inadequately disclosed his financial position. The trial court also found that Husband materially misrepresented to Wife, prior to the marriage, that he was a social drinker and not an alcoholic. Finding the evidence preponderates against the trial court’s findings, we reverse the trial court’s decision to invalidate the Prenuptial Agreement. We also find the Prenuptial Agreement bars an award of attorney’s fees to Wife.

William W. York v. TN Board of Probation and Parole - M2005-01488-COA-R3-CV View
Davidson County - In 2001, the appellant, a pro se prisoner, petitioned the chancery court for a writ of certiorari regarding the parole board’s decision denying him parole and setting a date for his next parole hearing ten years later. The chancery court granted the parole board’s motion to dismiss the petition, and the prisoner appealed. This Court affirmed the chancery court’s decision to dismiss the petition insofar as the prisoner alleged error with the decision to deny parole, but reversed and remanded as to the decision to defer parole consideration for ten years, finding it arbitrary. On remand, the chancery court ordered a second parole hearing, but later vacated the order. However, a second hearing had already been held at which the parole board again denied parole and set a date for the next parole hearing six years from the date of this second hearing. The chancery court ruled that the decision of the parole board to defer parole consideration for six years was not arbitrary, and concluded that the prisoner had been granted the relief to which he was entitled, dismissing the petition. The prisoner timely appealed to this Court. We affirm, as modified.

William H. Nix, III v. Richard T. Sutton - M2006-00960-COA-R3-CV View
Wilson County - The appellant contends that the circuit court erred in dismissing his appeal from general sessions court when he failed to appear on the date of the hearing. He claimed that he had gone to the wrong courthouse on the hearing date. We affirm.

Cases posted the week of 05/21/2007
C.S.C., et al vs. Knox County Bd of Education, et al - E2006-01155-COA-R3-CV View
Knox County - In this class action lawsuit filed against the Knox County Board of Education and its superintendent, the trial court awarded the Plaintiffs a portion of their attorney’s fees pursuant to 42 U.S.C. § 1988. The Defendants argue on appeal that the trial court erred in finding the Plaintiffs to be “prevailing parties” in the litigation and that the trial court’s award of attorney’s fees was unwarranted and erroneous. We hold that although the Plaintiffs were not successful on all of their claims, they achieved enough success in their lawsuit to be “prevailing parties.” We find no abuse of the trial court’s discretion in awarding Plaintiffs $45,000 in attorney’s fees, and consequently affirm.

John Wayne Webb vs. Brandon O.Canada, et al - E2006-01701-COA-R3-CV View
Concurring Opinion - View
Knox County - John Wayne Webb was injured in a car wreck and filed suit against two other drivers. A jury found defendant Brandon O. Canada to be solely at fault and awarded Mr. Webb $723,426.27 in compensatory damages against Mr. Canada. An order was entered awarding Mr. Webb judgment against Mr. Canada in the amount of $723,426.27 and dismissing the case as to the other driver, Douglas D. Townsend. Mr. Canada filed a motion seeking a new trial or in the alternative, a remittitur. Following a hearing, the trial court suggested a remittitur in the amount of $125,000. Final judgment was entered on July 24, 2006, referencing the remittitur and reducing the amount of the judgment to $598,426.27. On appeal, Mr. Canada argues that he is entitled to a new trial because Mr. Webb never accepted the remittitur, the verdict was excessive, and the remittitur was inadequate. After review, we find no error and affirm.

James W. Hindman, III v. John Doe, John Doe Company and Specialty Risk Insurance Company - M2006-01034-COA-R3-CV View
Davidson County - This appeal involves a dispute regarding the availability of uninsured motorist coverage for a motorist who was seriously injured after striking a large rock in the roadway. The motorist filed suit in the Circuit Court for Davidson County against the unknown owner and operator of the dump truck whom he believed were responsible for the rock being in the roadway. He also made an uninsured motorist claim against his own insurance company. A jury apportioned fault between the motorist and the unknown owner or operator and assessed the motorist’s damages. The trial court entered a $143,925 judgment for the motorist against his insurance carrier. Thereafter, the trial court determined that the jury’s award for medical expenses exceeded the motorist’s proof and suggested a $10,135.55 remittitur. The motorist accepted the remittitur under protest, and the trial court entered a $134,296.23 judgment for the motorist. On this appeal, the insurance carrier asserts that the motorist failed to prove that an unknown, uninsured motorist caused the rock to be in the roadway and that he had not been negligent in his efforts to locate the owner or operator of the dump truck. The motorist takes issue with the trial court’s decision to suggest a remittitur. We have determined that the record contains sufficient evidence to support a judgment against the insurance carrier and that the trial court did not err by suggesting a remittitur.

In The Matter Of: G. M. H. and R. S. H. - M2006-02665-COA-R3-PT View
Overton County - The termination of father’s parental rights for abandonment under Tenn. Code Ann. § 36-1-102(1)(A)(iv) and for incarceration for more than ten years under § 36-1-113(g)(6) is affirmed.

Bank of America, N.A. vs.Michael J. Darocha - E2007-00063-COA-R3-CV View
Johnson County - The bank filed a complaint upon sworn account to collect a past due balance owed by defendant “Michael J. Darocha” on a credit card account. Mr. Darocha filed no responsive pleading to the bank’s complaint, and the trial court entered default judgment against him. The trial court’s judgment included findings that Mr. Darocha had a security interest in an entity designated “MICHAEL J. DAROCHA.” Thereafter, a notice of appeal was filed on behalf of “MICHAEL J. DAROCHA©™.” In the absence of any evidence that the entity “MICHAEL J. DAROCHA©™” was adversely affected by the trial court’s judgment, the appeal is dismissed, and the judgment of the trial court is affirmed.

Basil Marceaux vs. Barrett Painter,et al - E2006-01444-COA-R3-CV View
Bradley County - Basil Marceaux filed this lawsuit claiming, among other things, that he had the right to dictate what news was published or broadcast by local and national newspapers and television stations. The lawsuit was properly dismissed by the Trial Court. This frivolous appeal from the dismissal of the frivolous lawsuit followed. Several of the defendants request an award of damages pursuant to Tenn. Code Ann. § 27-1-122 for having to defend this frivolous appeal. We affirm the judgment of the Trial Court and remand for a hearing pursuant to Tenn. Code Ann. § 27-1-122 as to those defendants who requested damages for the frivolous appeal.

In Re: B.S.G. - E2006-02314-COA-R3-PT VIew
Hamblen County - The trial court terminated the parental rights of G.G. (“Mother”) with respect to her minor child, B.S.G. (DOB: February 2, 2004) (“the child”), upon its finding – said to be by clear and convincing evidence – that grounds for termination existed and that termination was in the best interest of the child. Mother appeals. We affirm.

Rudolph Powers v. TN Board of Probation and Parole - M2005-01529-COA-R3-CV View
Davidson County - This appeal involves a prisoner seeking parole. The petitioner was convicted in 1981 and is serving a life sentence. In 2004, he was denied parole based on the severity of his offense. He filed the instant petition for a common-law writ of certiorari, claiming violations of his constitutional right to equal protection and due process, and a violation of the ex post facto clause of the Constitution. The trial court dismissed the petition on its face, finding that it failed to state a claim upon which relief could be granted. The petitioner filed this appeal. We affirm, concluding that the petition does not state a claim for relief.

St of Tennessee ex. rel., Patsy Young v. Danny Fish - M2005-02671-COA-R3-CV View
Warren County - This case involves the modification of child support by a special judge. The parties divorced in 1994, and the father was ordered to pay child support for the parties’ minor child. In 1998, the father filed a petition to be relieved from paying child support. A hearing on the father’s motion was held in 1999 by the clerk and master of the trial court, sitting as a special judge. After the hearing, the special judge entered an order reducing the father’s child support obligation. In 2004, the State, on behalf of the mother, filed the instant petition for child support arrears. In the motion, the State argued that the father’s arrearage must be calculated using the original amount of his child support obligation because the 1999 order entered by the clerk and master acting as special judge was invalid. The trial court held that, although proper procedure may not have been followed, the clerk and master was a de facto judge acting under color of right. Therefore, the father’s arrearage was calculated using the reduced amount of child support. The State now appeals, arguing that the 1999 order entered by the clerk and master was invalid and that the arrearage should be calculated using the original child support amount. We affirm, concluding that the clerk and master was acting as a de facto judge under the circumstances of this case, and that the 1999 order entered by him is the operative order from which the father’s child support arrearage should be calculated.

TN Department of Children's Services v. D. D. W. - M2006-02639-COA-R3-PT View
Montgomery County - The mother of two children appeals the termination of her parental rights. The trial court terminated her parental rights on the grounds of substantial noncompliance with the permanency plans. The trial court also found the termination of Mother’s rights to be in the best interest of the children. We affirm.

Allen Shawn Dye v. Amanda Layne Fowler - M2006-01896-COA-R3-CV View
Lewis County - The primary residential parent of the parties' eleven-year-old child requested permission to relocate to Georgia because her husband accepted employment that provided a significant increase in pay and better opportunities for advancement. The father opposed the relocation. The trial court, which made no findings of fact, denied the request based upon the conclusion the relocation did not have a reasonable purpose. We have determined the evidence preponderates in favor of the finding that the mother had a reasonable purpose for relocating to Georgia. Therefore, we reverse the judgment of the trial court and remand with instructions to grant the requested relocation to Georgia.

The State of Tennessee on the relation of Ed Cunningham d/b/a Beds to Go v. Reagan Farr - M2006-00676-COA-R3-CV View
Davidson County - This appeal involves a dispute between a taxpayer and the Tennessee Department of Revenue regarding liability for sales and use and business taxes. The taxpayer originally filed suit in Blount County, but the case was transferred by agreement to the Chancery Court for Davidson County. Thereafter, the taxpayer filed an amended complaint seeking either a writ of mandamus to require the Commissioner of Revenue to make an assessment of the taxes owed or a declaratory judgment that no additional taxes were owed. The Commissioner moved to dismiss the amended complaint. The trial court granted the motion after concluding that it lacked subject matter jurisdiction to grant declaratory relief and that the taxpayer’s mandamus claim was not yet ripe. The taxpayer appealed. While the appeal was pending, the Commissioner issued an assessment seeking $358,997.07 in taxes, penalties, and interest. We have determined that this case is now moot because the Commissioner has provided the taxpayer with the assessment it sought.

James E. Goodale, et al. v. Tammy Bunnell, et al. - W2003-01919-COA-R3-CV - W2003-01919-COA-R3-CV View
Shelby County - Plaintiff purchasers sued Defendant sellers, real estate agent, and real estate company alleging intentional fraud and seeking rescission of a contract to purchase real property and punitive damages. The matter was tried by a jury, which awarded Plaintiffs rescission of the contract and assessed punitive damages against Defendant real estate agent. The trial court further awarded Plaintiffs discretionary costs and attorney’s fees, which it assessed against Defendant sellers and real estate agent jointly and severally. The jury also determined real estate agent was an independent contractor and that Defendant real estate company was, therefore, not vicariously liable for punitive damages. Plaintiffs and Defendant sellers subsequently entered into a confidential, sealed settlement under which Plaintiffs received a substantial partial refund of the purchase price and retained ownership of the real property. Defendant real estate agent appeals the award of punitive damages and the award of attorney’s fees. Appellant additionally asserts the post-trial settlement between Plaintiffs and Defendant sellers resulted in an election of damages as a remedy or, alternately, in accord and satisfaction of the judgment. Plaintiffs cross-appeal, asserting the jury verdict finding that Defendant real estate agent was an independent contractor is not supported by the evidence. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

State of Tennessee on Relation of Carrie Roberts v. Tom Wall, Sheriff of Dickson County and Jeffrey A. White, Intervenor - M2006-00363-COA-R3-CV View
Dickson County - The Trial Court granted petitioner a Writ of Habeas Corpus and ordered her release from custody. A Tennessee Juvenile Court has found petitioner in contempt of court and incarcerated her for failing to obey the Tennessee Court’s Order which had changed the custody of her child to the father. Previously to the Tennessee Order a State of Maine Court had awarded the petitioner custody of the child. On appeal, we affirm the Trial Court’s grant of the Writ.

State of TN, ex rel., o/b/o C. V. v. Mark Visser, et al. - M2006-01229-COA-R3-JV VIew
Sumner County - Adoptive parents of minor child executed a voluntary surrender of their parental rights and, thereafter, sought termination of their child support obligations. The trial court granted the relief sought. The State of Tennessee, on behalf of the minor child, appeals on the ground that T.C.A. § 36-1-111(r)(1)(A) requires a parent who executes a voluntary surrender of parental rights to continue paying child support until the child is adopted. We reverse and remand.

HCA Health Services of Tennessee d/b/a Centennial Medical Center v. Dorothy Barron - M2005-00627-COA-R3-CV View
Davidson County - HCA Health Services of Tennessee, which does business as Centennial Medical Center (“HCA”), filed an emergency petition seeking to have a conservator appointed for a patient, Dorothy Barron. The trial court appointed a guardian ad litem and an attorney ad litem for Ms. Barron. Following a hearing, the court appointed a temporary conservator. Later, the temporary conservator approved a transfer of Ms. Barron to a nursing home. The trial court later dismissed the petition insofar as it sought the appointment of a permanent conservator. Ms. Barron appeals claiming she was denied due process of law and equal protection of the law in violation of the Fourteenth Amendment to the United Stated Constitution. We affirm.

Troy A. Clark v. Jennifer Dawn Clark - M2006-00934-COA-R3-CV View
Davidson County - This is the second appeal of a property division following the dissolution of an almost thirteen-year marriage. After a remand on the issue of the division of marital property, Troy Allen Clark (Husband) contends that the trial court divided the marital estate in an inequitable fashion and that it erroneously increased the value of real property awarded to him by refusing to subtract likely capital gains taxes from its market value. Husband also challenges the trial court’s post-remand award to Jennifer Dawn Clark (Wife) of half the attorney’s fees incurred for the preparation of a Qualified Domestic Relations Order [QDRO] that was ordered in the divorce proceeding. We affirm in part, reverse in part, and remand for entry of judgment.

Patrick McGee v. Tommy Jacobs, Jacobs, Cohen & McCormick, PLLC CPAS - M2005-01340-COA-R3-CV View
Davidson County - Appellant asserts the circuit court erred by dismissing this action as untimely under the savings statute. We affirm.

Ashton Scott Adams, Surviving Minor Son of Candace M. Farris, Deceased, by and Through his Next Friend and Father, Randy Scott Adams v. Hendersonville Hospital Corp. - M2006-01068-COA-R3-CV View
Sumner County - Patient presented to hospital emergency department with complaints of high fever, body aches (specifically in her right knee and calf), vomiting, nausea, and diarrhea. Approximately four and a half hours later, patient was discharged from the emergency room with a diagnosis of flu and dehydration. The patient died three days later, and an autopsy revealed that the cause of death was septic shock, secondary to a bacterial infection. In the suit against the hospital and treating physician, Appellant submitted three suggested jury instructions to the trial court, all three of which were denied. Appellant appeals the trial court’s denial of the three jury instructions, as well as a specific portion of the instructions given to the jury. The judgment of the trial court is reversed and the case remanded for a new trial.

Robert E. Tate v. Western Express, Inc. - M2006-00650-COA-R3-CV View
Davidson County - The trial court dismissed a buyer’s counterclaim under an asset purchase agreement. The buyer’s counterclaim was an effort to recover from an individual party to the agreement for amounts buyer spent in satisfaction of seller’s debts although buyer did not assume such liabilities as well as other costs or losses associated with the asset purchase. Based on the obligations undertaken by the individual and the record before us, we affirm the trial court’s grant of summary judgment to the individual as to some claims and the grant of Rule 41.02 dismissal of the other claims.

France Isabelle Ter Weele Wine v. Jeffrey M Wine - M2006-00855-COA-R3-CV View
Williamson County - ldren appeals the denial of his post-divorce petition to reduce child support and for Tenn. R. Civ. P. 60.02(5) relief from his alimony in solido obligation. He was earning $80,000 a year when the parties entered into the Marital Dissolution Agreement in July 2004 but was fired two weeks prior to the entry of the Final Decree of Divorce on September 27, 2004. Two months later, he was indicted for theft of property over $60,000, and remained in custody for one month until family posted his bond. Thereafter, he filed a petition to reduce child support and for Rule 60.02(5) relief from his alimony in solido obligation. The mother admitted there was a significant variance but opposed the petition contending the father was willfully underemployed because the conduct for which he was fired was willful. The trial court denied the petition to reduce child support upon a finding the father failed to prove the significant variance was not caused by his willful and voluntary underemployment. We reverse the denial of the petition to reduce child support because the trial court erroneously placed the burden on the father to prove that he was not willfully underemployed when the burden of proof was on the mother. We affirm the denial of Rule 60.02(5) relief because the father’s decision to assume the alimony in solido obligation was a free, calculated, and deliberate choice, and his failure to anticipate a significant change in his earning capacity did not constitute a circumstance for which Rule 60.02(5) relief should be granted.

Elias H Attea Jr v Andrew S Eristoff & Jorge Reyes - M2005-02834-COA-R3-CV View
Cheatham County - This appeal involves a dispute between a Tennessee resident and two taxing authorities of the State of New York involving the Tennessee resident’s business activities in New York. The Tennessee resident filed suit against the New York taxing authorities in the Chancery Court for Cheatham County, alleging that their telephone calls and letters attempting to collect the disputed taxes amounted to intentional infliction of emotional distress. The taxing authorities moved to dismiss the complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim upon which relief could be granted. The trial court granted the motion after concluding that it lacked personal jurisdiction over the New York Taxing authorities. The Tennessee resident appealed. We have determined that the trial court properly concluded that it lacked personal jurisdiction and that the complaint was also due to be dismissed for both lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted.

Henry Benson v. Harry A. Herbst and Bridgestone Americas Holding, Inc. - M2006-00660-COA-R3-CV View
Davidson County - This appeal illustrates the fate that awaits plaintiffs who file suit in general sessions court when their damages exceed the court’s jurisdictional limits. After the plaintiff was seriously injured in an automobile accident, he filed suit in the Davidson County General Sessions Court against the driver of the other vehicle and the other driver’s employer. On the date of the hearing, the defendants confessed judgment and agreed to pay the damages sought in the general sessions warrant. Over the plaintiff’s objection, the general sessions court entered a $14,999 judgment against the defendants. The plaintiff thereafter perfected a de novo appeal to the Circuit Court for Davidson County. The defendants moved to dismiss the appeal for lack of subject matter jurisdiction on the ground that the general sessions court judgment was not “adverse” to the plaintiff. The trial court dismissed the case for lack of subject matter jurisdiction, and the plaintiff appealed. Like the trial court, we have determined that the general sessions judgment was not adverse to the plaintiff because he had received all the relief he requested from the general sessions court. Accordingly, the trial court did not err by dismissing the de novo appeal for lack of subject matter jurisdiction.


Cases posted the week of 05/14/2007
Granville Payne v. W. W. Scott Dube and Mid South Orthopedic - M2005-02696-COA-R3-CV View
Davidson County- This appeal involves a pro se medical malpractice complaint filed against an orthopedic surgeon in the Circuit Court for Davidson County. After the patient took no action for more than one year, the trial court clerk notified him that his complaint would be dismissed if the case was not set for trial within thirty days. When the patient failed to set the case, the trial court dismissed his complaint. The patient then filed a motion to set aside the order of dismissal and requested additional time to retain counsel and to develop a factual basis for the complaint. The trial court declined to set aside the order of dismissal, and the patient appealed. We have determined that the trial court was fully justified in dismissing the complaint given the patient’s multiple violations of the Tennessee Rules of Civil Procedure.

Robert Turner v. Ricky Bates d/b/a RB Auto Sales - M2005-02285-COA-R3-CV View
Davidson County- This appeal involves a dispute regarding the consequences of a default in payment of a car note. The purchaser defaulted on the note five months after purchasing the vehicle, and the dealer repossessed the vehicle and resold it. Thereafter, the purchaser filed suit against the dealer in the Davidson County General Sessions Court seeking to recover $3,000 of his $3,400 down payment on the theory that the dealer had wrongfully repossessed and sold the vehicle because he had paid the dealer a $400 “payment in the hole” to be used whenever he failed to make a required payment. The general sessions court awarded the purchaser $3,000, and the dealer perfected a de novo appeal to the Circuit Court for Davidson County. The trial court determined that there had been a miscommunication between the purchaser and the dealer regarding the application of the $3,400 down payment and ordered the dealer either to pay the purchaser $2,000 or to give the purchaser a $3,000 credit toward the purchase of another vehicle from the dealer. The dealer has appealed. We have determined that the plain language of the parties’ contract compels reversal of the trial court’s judgment.

James David Gamble v. Susan Marie Gamble - M2006-00797-COA-R3-CV View
Williamson County - This appeal involves a dispute over spousal support following the dissolution of a 24-year marriage. The Chancery Court for Williamson County granted the wife a divorce on the ground of inappropriate marital conduct and awarded her $2,500 per month in alimony in futuro. The husband takes issue on this appeal with the trial court’s decision to award the wife alimony in futuro rather than rehabilitative alimony and with the amount of the alimony. We have determined that the trial court’s decision with regard to spousal support is supported by the record and that the wife is entitled to an additional award for the reasonable and necessary legal expenses she has incurred on appeal.

Steve Biggers v. Transport Services, Inc. - M2006-01549-COA-R3-CV View
Davidson County - This appeal involves the termination of an independent contractor’s contract to provide courier services. The independent contractor filed suit in the Circuit Court for Davidson County alleging that the employer did not have just cause to terminate the contract. After the trial court set aside a default judgment for the independent contractor, the employer filed an answer and a motion for summary judgment. Following a hearing, the trial court granted a summary judgment for the employer after concluding that the undisputed facts demonstrated that the employer had just cause to terminate the independent contractor. On this appeal, the independent contractor insists that the trial court erred by setting aside the default judgment and by determining that the employer was entitled to a judgment as a matter of law. We have determined that the undisputed facts support the trial court’s conclusion that the employer was entitled to a judgment as a matter of law.

Leslie Reese v. Jeffrey Mark Klocko - M2005-02600-COA-R3-CV View
Davidson County- Leslie Roehm Reese (“Wife”) filed a complaint seeking a divorce from Jeffrey Mark Klocko (“Husband”). Husband filed a counter-claim also seeking a divorce. While this litigation was pending, Husband was convicted of sexually abusing his step-daughter and was sent to prison. After Husband was sent to prison, his attorney withdrew from the case. Thereafter, Husband filed a pro se motion seeking to participate in the divorce trial by telephone. The Trial Court never ruled on Husband’s motion and proceeded with the trial without Husband being allowed to participate. Husband appeals claiming, among other things, that the Trial Court erred when it failed to rule on his motion seeking to participate in the trial by telephone. We agree with Husband, vacate the judgment of the Trial Court, and remand for further proceedings.

Peter Paul Mitrano v. Matthan Houser - M2005-02287-COA-R3-CV View
Overton County- The trial court dismissed this action for unpaid rent pursuant to the res judicata doctrine, holding that all claims and issues raised by the complaint were or could have been previously litigated in the New Hampshire court system and were resolved in the Defendant tenant’s favor. The trial court also granted the Defendant’s motion for sanctions under Tenn. R. Civ. P. 11 and ordered the Plaintiff to pay $1,500 of Defendant’s attorney’s fees. We hold that under applicable New Hampshire law, the judgment entered by a New Hampshire Superior Court dismissing Plaintiff’s previous action for unpaid rent against the same Defendant because of Plaintiff’s repeated discovery abuses and flagrant disregard of court orders is a judgment on the merits for purposes of the res judicata doctrine. We therefore affirm the trial court’s dismissal of this action. However, because we find that the procedural “safe harbor” provisions of Tenn. R. Civ. P. 11.03 were not complied with in this case, we reverse the trial court’s award of attorney’s fees as sanctions.

Sharon Hunt Matlock v. Claude Mark Matlock - M2004-01379-COA-R3-CV View
Humphreys County - In an action for divorce, Wife appeals the division of the marital debts and assets, the amount of her rehabilitative alimony award, and the court’s decision to name Husband primary residential parent of the parties’ two minor children. We affirm the judgment of the trial court on all issues except the classification and award of Husband’s 401(k) retirement account.

Linus Thornton v. James A. Massey, et al. - W2006-01417-COA-R3-CV View
Hardin County - This lawsuit concerns Plaintiff’s claim under the parties’ lease agreement for a percentage of the sale price generated by the auction sale of Defendant’s real property, and Defendant’s counter-claim for payments due on promissory notes. The trial court entered judgment in favor of Plaintiff on both the lease claim and counter-claim. We affirm in part, vacate in part, and remand.

Joyce A. Underwood, et al v Nat'l Alarm Services, Inc. - E2006-00107-COA-R3-CV View
Knox County - Ms. Underwood and four children were injured when her home caught fire in the early morning hours of July 21, 1999; two of the children died shortly after being transported to the hospital. Ms. Underwood sued the alarm company that provided emergency monitoring services for the home, alleging several theories of negligence. The contract between the parties contained a limitation of liability/liquidated damages clause, which limited the recovery of Ms. Underwood to $250. The trial court granted summary judgment to the alarm company, finding that: (1) the alarm company did not owe a duty to Ms. Underwood because she had failed to pay monthly monitoring fees due under the contract; (2) the exculpatory and limitation of liability clauses in the contract were valid; and (3) the alarm company established that it was not negligent, and Ms. Underwood failed to present evidence creating a genuine issue of material fact for trial. We hold that the alarm company did owe a duty to Ms. Underwood, despite her failure to pay fees, and that the limitation of liability clause at issue in the contract is valid and limits Ms. Underwood’s recovery to $250. We also find that there are genuine issues of material fact which preclude the granting of summary judgment. Therefore, we affirm in part and reverse in part.

Herman Charles Heikkenen v. Janice Lee Heikkenen - M2005-01084-COA-R3-CV View
White County - On this appeal, the sole issue is whether the trial court erred in awarding $1,500.00 per month as alimony in futuro to the wife. Finding no basis for determining the trial court abused its discretion in awarding alimony in this amount, we affirm.

Latecia Gail Watson DiChristina v. Mark William DiChristina - M2006-00025-COA-R3-CV View
Warren County - On this appeal from a divorce action, the husband alleges the trial court erred in awarding wife alimony in futuro in the amount of $600.00 per month, in admitting into evidence an indictment charging him with unlawful sexual contact with wife’s minor daughter and in finding that husband had implicated himself in misconduct toward the daughter. We find no error and affirm.

Cases posted the week of 05/07/2007
Brenda J. Woodward vs. Michael V. Woodward - E2006-01110-COA-R3-CV View
Dissenting Opinion - View
Hamilton County - In this divorce case, Husband argues that the trial court erred in its classification, valuation, and division of the marital estate, including the award to Wife of $1,000 to “equalize the marital property division.” Upon our determination that the evidence did not support an award of $1,000 to Wife to equalize the marital property division, the trial court’s judgment is vacated in that regard. In all other respects, Husband failed to show that the evidence preponderated against the trial court’s decision, and the judgment is affirmed.

Phillips Contractor's and Management, LLC vs. Stealth Group, LLC, et al - E2006-01960-COA-R3-CV View
Loudon County - In this breach of contract case, the trial court awarded the plaintiff contractor the remaining gross balance due under its construction contract with the defendants. Upon our determination that the award of damages should have been the plaintiff’s lost net profits, we vacate the trial court’s judgment and remand.

Sonia Cristina Lee Hastie vs. David Graham Hastie - E2006-01874-COA-R3-CV View
Knox County - Sonia Cristina Lee Hastie (“Wife”) sued David Graham Hastie (“Husband”) for divorce. The case was tried and the Trial Court entered a Judgment for Absolute Divorce finding and holding, inter alia, that Wife was entitled to a divorce on the grounds of inappropriate marital conduct; Wife was entitled to 50% of the portion of Husband’s military pension accrued during the marriage, which constitutes 12% of the monthly net pay; Wife was awarded $100 per month as alimony in futuro specifically for payment of her medical insurance benefits until Wife is approved for Medicare or some other form of disability type health insurance coverage; and Wife was awarded an additional $250 per month as alimony in futuro. Husband appeals to this Court raising issues regarding the awards of alimony in futuro. We affirm.

James H. Kelley, Surviving Spouse of Lillie Donnette Kelley, Deceased, et al. v. Middle Tennessee Emergency Physicians, P.C., et al. - M2006-00517-COA-R3-CV View
Davidson County- The appeal arises from the summary dismissal of a medical malpractice action against a cardiologist and his cardiology group. The decedent’s surviving family alleges the decedent’s death was the result of medical malpractice. The trial court dismissed the claim finding the plaintiff failed to prove the element of causation as required by Tenn. Code Ann. § 29-26-115 (a)(3) . The plaintiff contends the evidence was sufficient to survive summary dismissal. Finding no error, we affirm.

In Re: J.H.S. - E2006-02433-COA-R3-PT View
Greene County - The Juvenile Court terminated the parental rights of P.S. (“Mother”) to her six year old son, J.H.S. The trial court found, by clear and convincing evidence, that grounds for terminating Mother’s parental rights existed and that termination of her parental rights was in the best interest of the child. Mother appeals challenging the termination of her parental rights. We modify the judgment and affirm as so modified.

Marks, Shell & Maness, et al. v. Cynthia T. Mann, et al. - M2006-01142-COA-R3-CV View
Montgomery County - A judgment lienholder appeals from a trial court’s determination that a purchase money mortgage lien on real property has priority over a previously recorded judgment lien. Based upon this court’s holding in Guffey v. Creutzinger, 948 S.W.2d 219 (Tenn. Ct. App. 1998), we affirm the trial court.

In the Matter of: Appeals of Al Watson, Milton Bowling, and Diane Ferguson v. City of Lavergne, Tennessee - M2006-00351-COA-R3-CV View
Rutherford County- The termination of city employees challenged under a writ of certiorari is affirmed because the city’s decision to terminate the at will employees was not arbitrary. The trial court’s award of severance benefits to the terminated employees is reversed because a direct cause of action may not be joined with a common law writ of certiorari action.

Pat Burks & Richard Burks v. Evelyn Berryhill Spurlin - M2006-00122-COA-R3-CV View
Lawrence County- The sole issue on appeal is whether the trial court abused its discretion by denying the appellants’ motion for a continuance of the trial date. Although the appellants had substantial notice of the trial date, they waited until the day of the trial to file their motion for a continuance. Whether to grant a motion for a continuance is subject to the discretion of the trial court, and a discretionary decision to grant or deny a motion for a continuance will not be disturbed by an appellate court unless the record clearly shows an abuse of discretion by the trial court and prejudice to the party seeking the continuance. There being no proof of either, we affirm.

Cases posted the week of 04/30/2007
Wendy L. Clark v. Randal Lee Arthur - M2005-01719-COA-R3-CV View
SUmner County - This appeal involves petitions for contempt and to modify a custody order. Both the mother and the father filed petitions seeking to have the initial custody order modified, and both asked that the other parent be held in contempt for failing to comply with the parenting plan. They presented various arguments about why custody should be changed in their favor, but neither alleged that any circumstances had changed since the initial order was entered. The trial court dismissed both petitions after finding that both parties had failed to prove a material change in circumstances to justify a modification of the custody order. The court also dismissed both petitions for contempt. For the following reasons, we affirm.

Ronald K. Pendergraph v. J. Hilton Conger - M2005-01595-COA-R3-CV View
Van Buren County - In this action for legal malpractice against defendant attorney, the Trial Court granted defendant summary judgment on the ground that plaintiff, as a condition precedent to maintaining the malpractice action, had to obtain post-judgment relief from his criminal conviction, which plaintiff had failed to do after bringing his post-judgment action. On appeal, we affirm.

Cummins Station, LLC v. Allison Batey - M2005-02508-COA-R3-CV View
Davidson County - This case arises from a default judgment entered against Appellant for failure to comply with an Order to Compel. Appellant appeals. We affirm and remand for determination of damages for frivolous appeal.

Michael Waldron v. TN Department of Correction - M2005-02845-COA-R3-CV View
Davidson County - Appellant challenges trial court’s order granting summary judgment in favor of the Appellee and denying Appellant’s petition for declaratory relief. We affirm.

Christopher Scott Everett v. Kerry Kathleen Everett - M2005-00934-COA-R3-CV View
Cheatham County - In this appeal from a final order of divorce, the wife appeals the trial court’s designation of the husband as the primary residential parent, identification of marital assets and allocation of marital debt, denial of transitional alimony, and calculation of the wife’s child support obligation. We affirm the trial court’s residential placement arrangement as reflected in the agreed parenting plan and also affirm the designation of the husband as primary residential parent. In addition, we affirm the trial court’s classification of the husband’s father’s financial assistance to purchase the marital home as a debt rather than a gift; the trial court’s denial of the wife’s request for transitional alimony; and the trial court’s decision regarding the wife’s earning capacity for purposes of setting child support. However, we have determined that the trial court erred by allocating to the wife part of the responsibility for the repayment of the husband’s student loans.

In Re: Matter of Abdullah Rahim - M2006-02216-COA-R3-CV View
Davidson County - A prisoner appeals from the denial of his petition for a name change. Although he sought to change his name back to his original name, an intervening statutory enactment precludes name changes by persons convicted of specified crimes. Because the prisoner was convicted of one of the enumerated crimes, we affirm the trial court’s denial of the petition.

Amanda Dawn Alderidge v. Lynn Vernon Alderidge, Jr. - M2004-02568-COA-R3-CV View
Lawrence County - In this divorce proceeding, the appellant contends the trial court erred by granting the divorce to his wife and designating her as the primary residential parent of their minor child. Finding no error, we affirm.

John Anthony Melton v. Jennifer Shannon Profitt (Melton) Johnson - M2006-01412-COA-R3-CV View
Humphreys County - At the time the parties were divorced, they essentially agreed to a joint custodial arrangement for their two children. Subsequently, the father filed a Petition alleging change of circumstances and for primary custody of the children. The wife filed a Counter-petition for primary custody. The Trial Court heard evidence and awarded primary custody to the father. The mother has appealed. We affirm.

Hattie Williams v. Metropolitan Police Department - M2005-00937-COA-R3-CV View
Davidson County - Appellee Metropolitan Police Department terminated the employment of Employee/Appellant for violation of internal policies concerning work place harassment. The decision was upheld by the Civil Service Commission. Employee/Appellant appealed to the Davidson County Chancery Court, which court upheld the Commission’s decision. Employee/Appellant appeals. We affirm.

Eric Todd Jackson v. State of Tennessee - M2004-00926-COA-R3-WM View
Montgomery County - Appellant, who was the defendant in a previous criminal proceeding, filed a Writ of Mandamus seeking to obtain a refund of the bond he posted in the criminal case. The trial court dismissed the petition. Finding no error, we affirm.

Maggie Lee Banks v. Jack C. Sanford, M.D., et al. - W2006-00703-COA-R3-CV View
Shelby County - After receiving a routine hormone injection, the plaintiff patient experienced pain, facial swelling, numbness, and blindness. The plaintiff filed a complaint against the clinic, its employee physician, and the employer of the nurse who had administered the injection, alleging medical malpractice. The defendant clinic and physician filed a motion for summary judgment, and attached the expert affidavit of the defendant physician in which he stated that all of the defendants had treated the plaintiff in accordance with the relevant standard of care and according to their best medical judgment. After the physician’s deposition was taken, the plaintiff filed a motion for a determination by the trial court that his previously filed affidavit had been filed in bad faith, citing alleged inconsistencies with his deposition testimony and discovery admissions. The nurse’s employer filed a motion for summary judgment that relied upon the physician’s deposition testimony that the nurse had acted in accordance with the relevant standard of care and that the actions of the nurse had not caused the plaintiff’s injuries. A hearing was held at which the trial court denied the plaintiff’s motion to find that the physician’s affidavit had been made in bad faith, and the trial court allowed the plaintiff additional time in which to produce expert proof of causation. After the plaintiff was unable to obtain expert proof, the trial court ultimately granted the defendants’ motions for summary judgment. The plaintiff filed a timely notice of appeal. Finding no error, we affirm the judgment of the trial court.

John Patrick Cunningham, Jr. v. Melissa Kay Cunningham - M2006-01187-COA-R3-CV View
Robertson County - This is a post-divorce case involving child visitation rights with a stepparent. The mother and biological father of the child divorced in 1993 in Sumner County. Under the Sumner County divorce decree, the mother was designated the primary residential parent and the biological father was granted parenting time. The mother remarried. In 2002, the mother and the stepfather divorced in Robertson County. The mother and stepfather, the parties to this appeal, entered into a marital dissolution agreement that provided the stepfather visitation with the minor child. The agreement was incorporated into the Robertson County divorce decree. Two years later, a dispute arose regarding the stepfather’s visitation. The stepfather filed a petition in Robertson County to enforce his visitation rights with the minor child. The biological father intervened, alleging that the Robertson County court did not have jurisdiction to address visitation matters related to the minor child. The trial court refused to address visitation matters for lack of jurisdiction, but enforced the parties’ marital dissolution agreement by requiring the breaching party to pay attorney’s fees. This decision was not appealed. Two months later, the stepfather filed another petition in the Robertson County court seeking reinstatement of visitation. The mother filed a motion to dismiss, asserting res judicata. The trial court denied the mother’s motion and reinstated the stepfather’s visitation. The mother now appeals. We vacate the order on visitation, finding that the Robertson County court did not have subject matter jurisdiction to adjudicate visitation matters relating to the minor child.

In Re: Estate of W. Garnett Ladd, Sr.; W. Garnett Ladd, III, et al. v. Robert C. Marks - M2005-02089-COA-R3-CV View
Montgomery Cuonty - The matters at issue pertain to the fee awarded a Co-Executor of an estate. The Co-Executor appeals contending he was entitled to a contractual fee equal to five percent of the gross estate based on an oral agreement with the ninety-four year old widow of the testator who served as his co-executor. The Special Master and Chancellor made concurrent findings that the appellant had failed to properly administer the estate. They also found that his claimed excuse, that he was acting according to the wishes of his ninety-four year old Co-Executrix, did not relieve him of his affirmative fiduciary duties as a personal representative. The Chancellor awarded him a fee of $25,000 for his services as Co-Executor. We have concluded he is entitled to no fee for his services.

Cherretha Yvonne Tate vs. Burley Champion - E2006-01033-COA-R3-CV View
Hamilton County - Mr. Champion (the “Landlord”) had several trenches dug in his tenant’s yard to repair a leaking water pipe. After repairing the pipe, the Landlord did not cover the trenches, and Ms. Tate (the “Tenant”) complained repeatedly. Over time, grass grew over the trenches. Three months after the trenches were dug, the Tenant, after returning from a shopping trip and carrying two bags, fell in one of the trenches and was injured. The Tenant sued the Landlord for negligence. The trial court granted the Landlord’s motion for summary judgment, finding that the uncovered trench was open and obvious and therefore, it was not foreseeable to the Landlord that the Tenant would step into a known hazard. After careful review, we find that the Landlord owed a duty of reasonable care to the Tenant; that the Landlord did not affirmatively negate an essential element of the Tenant’s proof, i.e., the Landlord’s duty of care to the Tenant; and, as a result, summary judgment was inappropriate. We vacate and remand.

Linda Bush v. Adworks Advertising Outdoors, LLC - W2006-00763-COA-R3-CV View
Shelby County - This is a property case involving a restrictive covenant. The homeowners in a subdivision entered into a restrictive covenant agreement with the original developer of a tract of land directly across the highway from the residential subdivision. The restrictive covenant prohibits the use of the developer’s property for “billboards . . . not in place on December 1, 1995.” On December 1, 1995, three billboard structures existed on the burdened property. Years later, the defendant billboard company purchased easements in the three billboard sites and the existing billboard structures were removed. The defendant billboard company then erected three new billboard structures. Subsequently, the plaintiff homeowner in the subdivision filed the instant lawsuit for injunctive and declaratory relief, alleging that the defendant billboard company’s placement of new billboard structures on the burdened property constituted a violation of the restrictive covenant. The parties filed cross-motions for summary judgment. The trial court granted summary judgment in favor of the defendant billboard company, and the plaintiff homeowner now appeals. We affirm, finding that the language of the restrictive covenant is unambiguous, and that it restricts only the use of the burdened property, limiting the use to the number of billboards on the property as of December 1, 1995.

Paul L Ivy v Tennessee Dept of Correction, et al. - M2005-02339-COA-R3-CV View
Wayne County - While an inmate at the South Central Correctional Facility (“SCCF”), Paul L. Ivy was found guilty by the prison disciplinary board of possession of security threat group (“STG”) material. Mr. Ivy challenged the conviction by filing a petition for writ of certiorari in the Wayne County Chancery Court. The Tennessee Department of Correction (“TDOC”) filed a motion to dismiss, which was granted by the trial court. After careful review, we vacate the judgment of the trial court and remand for entry of an order granting Mr. Ivy’s writ of certiorari.

Frank T. Dalton v. Loriann Deuel - M2005-02399-COA-R3-CV View
Rutherford County - Loriann Deuel appeals an order of the Rutherford County Circuit Court (“the trial court”). The trial court held that it did not have jurisdiction to hear an appeal from an order of the juvenile court domesticating a foreign judgment pertaining to the custody of and visitation with the minor child of the parties. It dismissed Ms. Deuel’s appeal. Before us, she argues that the trial court erred in failing to grant her motion that the appeal be transferred to the Court of Appeals. We conclude that the trial court erred in failing to grant the motion. Accordingly, we vacate the order of the trial court and remand for further proceedings pursuant to T.C.A. § 16-4-108(a)(2) (1994).

Kenneth Jones v. Tennessee Department of Correction - M2004-01713-COA-R3-CV View
Davidson County - An inmate appeals the Chancery Court’s dismissal of his Petition for Writ of Certiorari based on improper venue and the court’s decision to not transfer the case to the proper venue. Finding that the Chancery Court did not abus