The following Opinions are available for download:

Cases posted the week of 09/24/2001
Jerome Beasley, et al vs. Lloyd Amburgy - M2000-03122-COA-R3-CV View
Davidson County - A limousine driver, after taking Tylenol and two or three shots of novocaine for an abscessed tooth, suffered a blackout and lost control of the automobile. The trial court granted summary judgment to the driver and his employer on the ground that the blackout was not reasonably foreseeable. We affirm.

John Cappello vs. Hazel Albert - M2000-02104-COA-R3-CV View
Davidson County - A corrections officer with the Tennessee Department of Correction, after being discharged for allegedly purchasing a television from an inmate at the institution where he serves, was denied unemployment benefits. The officer's petition for certiorari to the chancery court was dismissed, and the officer has appealed. We affirm.

Howard Levy vs. Williamson County Bd. of Zoning Appeals - M1999-00126-COA-R3-CV View
This appeal involves a dispute between neighboring property owners over a storage shed and a swimming pool. After the Williamson County Board of Zoning Appeals authorized one of the property owners to move the storage shed and to construct the swimming pool, the other property owner filed separate petitions for a common-law writ of certiorari in the Circuit Court for Williamson County asserting that the Board had erred by permitting his neighbors to move their storage shed and to construct their swimming pool. The Board moved to dismiss the petitions because they failed to name the neighbors who owned the storage shed and the swimming pool as defendants as required by Tenn. Code Ann. § 27-9-104 (2000). After consolidating the petitions for hearing, the trial court dismissed them on the ground that the petitioning neighbor's failure to name his neighbors as defendants was jurisdictional. We have determined that the petitioning neighbor's failure to comply with Tenn. Code Ann. § 27-9-104 did not affect the trial court's subject matter jurisdiction. We have also determined that the trial court erred by denying the petitioning property owner's motion to amend one of the petitions to cure the failure to comply with Tenn. Code Ann. § 27-9-104. Accordingly, we reverse the order dismissing the petitioning neighbor's petitions for common-law writ of certiorari.

Anthony Murray vs. Dewey Lineberry - M2001-00097-COA-R3-CV View
Wilson County - This appeal arises from a defamation action. The appellant sued the appellee for slander after the appellee aired a series of political advertisements including statements about the appellant, a deputy sheriff. The Wilson County Circuit Court granted the appellee's motion for summary judgment. We affirm the trial court's decision.

Earl Van Winkle, et al vs. City of LaVergne - M2000-01784-COA-R3-CV View
Rutherford County - This appeal involves the disputed ownership of water lines. The City of LaVergne appeals the trial court's ruling that the city was the owner of the water lines and responsible for their continued maintenance and repair. LaVergne also appeals the trial court's award of $3037.31 to the Van Winkles. For the reasons set forth below, we affirm the ruling of the trial court.

Warren Restoration Co. vs. Northgate Shopping Center vs. State Auto Ins. Cos. - M2000-02402-COA-R3-CV View
Warren County - This is a dispute regarding the valuation of a strip mall for purposes of determining the applicability of a co-insurance penalty clause in Northgate Shopping Center's casualty insurance policy. In a bench trial, the trial court found the witness for Northgate to be more credible than the witness for State Auto Insurance Companies, and found the replacement cost of the building to be $3,068,000. Since the building was insured for $3,100,000, the co-insurance penalty did not apply. The trial court awarded Northgate judgment of $73,637.56, less a $1,000 deductible. This judgment included prejudgment interest of $16,107.00 assessed against Northgate and awarded to Plaintiff Warren Restoration, which had repaired areas of the mall damaged by fire. On appeal, State Auto challenges the trial court's acceptance of the valuation as determined by witnesses for Northgate, contends that the co-insurance penalty clause is applicable, and challenges the award of prejudgment interest. For the reasons set forth below, we affirm the trial court in all respects.


Myron Hubbard vs. Sandi Hubbard - E2001-00110-COA-R3-CV View
Blount County - The Trial Court granted appellee Judgement before the 30 days to answer process provided in the Rules of Civil Procedure had expired. On appeal, we vacate and remand.

Dept.of Children's Svcs. vs. D.R., et al - E2000-01381-COA-R3-CV View
Blount County - These parents of three minor children ("Children") were arrested in April 1998, while the Children were with them, for possession of a firearm, drug possession, and public intoxication. The State of Tennessee, Department of Children's Services ("DCS"), filed a Petition for Temporary Custody of the Children which was granted. Thereafter, DCS entered Plans of Care with the Juvenile Court with which the parents, D.R. ("Mother") and L.M.R. ("Father"), had agreed. The Children remained in foster care for eighteen months during which time the parents were to work toward completing the goals set forth in the Plans of Care so they could be reunited with the Children. In August 1999, DCS filed a Petition to Terminate Parental Rights. The Juvenile Court Referee heard this petition in October 1999, and granted it. The Juvenile Court Referee's Termination of Parental Rights and Final Decree of Guardianship was entered in April 2000 and confirmed by the Juvenile Court Judge in June 2001. Both Mother and Father appeal. We affirm.

Deborah Davis vs. Jerry Davis - E1999-02737-COA-R3-CV View
This appeal from the Hamilton County Circuit Court questions whether the Trial Court erred in failing to approve Ms. Davis's Statement of the Evidence, in retroactively modifying child support, in determining the amount of Mr. Davis's mortgage obligation to Ms. Davis, and in determining the amount of attorney's fees Mr. Davis was ordered to pay Ms. Davis. We affirm the judgment of the Trial Court as modified and remand with directions.

Jerry Grace, et al vs. Mountain States Health Alliance - E2000-03031-COA-R3-CV View
Washington County - In this medical malpractice suit the Trial Court granted a summary judgment in favor of Mountain States Health Alliance, d/b/a/ Johnson City Medical Center Hospital and five Doctors. The Trial Court overruled the Plaintiffs' motion to alter or amend his determination that all Defendants were entitled to summary judgment. As to the Doctors, the determination was predicated upon the motion to alter or amend not being timely filed, and as to the Medical Center on the grounds that the delay in submitting materials accompanying the motion to alter or amend was not justified. We affirm.

Barbara Korthoff vs. Herbert Korthoff - W2001-01712-COA-R10-CV View
Shelby County - In this pending divorce action, the trial court ordered Husband to transfer $300,000.00 to Wife as a partial distribution of the marital estate. Husband filed an application for extraordinary appeal pursuant to Rule 10 Tenn. R. App. P. which this Court granted. Husband contends that the trial court is without authority to make a partial distribution of marital funds during the pendency of the divorce action. Furthermore, if the court had such authority, it could not do so absent an evidentiary hearing to determine whether the property was marital or separate. The application was granted and the order of the trial court reversed.

Jackie Robinson vs. Patrick LeCorps - M1999-01581-COA-R3-CV View
Davidson County - This case arises from a medical malpractice suit in which defendant's motion to dismiss was granted pursuant to Tenn. Code Ann. § 29-26-115 after plaintiff's sole expert was excluded from testifying because his testimony was based on a national standard of orthopedic care. For the reasons below, we affirm the lower court's decision to exclude the plaintiff's medical proof. We also affirm the dismissal of the case.

David Nevills vs. South Central Correctional Disciplinary Board - M2000-02324-COA-R3-CV View
Wayne County - This appeal involves the denial of a petition for writ of certiorari brought in chancery court by a state prisoner. The prisoner requested review of actions allegedly in violation of due process taken by a prison disciplinary review board. The chancery court granted a motion for summary judgment in favor of the disciplinary review board and for the following reasons, we affirm.

Dawn Dugan vs. Elliott Myers - E2001--00281-COA-R3-JV View
Dawn Dugan vs. Elliott Myers - E2001--00281-COA-R3-JV ( Concur) View
Washington County - In this paternity case an unwed mother of a minor child appeals a judgment granting visitation privileges to the parents of the father, who is deceased. We vacate the judgment and remand for a determination of whether failing to grant visitation would result in "harm to the child," as contemplated by T.C.A. 36-6-306(b).

Lonnie Wilder vs. Leslie Wilder - E2000-03184-COA-R3-CV View
Claiborne County - In this divorce case, the Trial Court awarded husband attorney's fees against wife. On appeal, we reverse.

Cases posted the week of 09/17/2001
Ben Doubleday vs. Larry Hargrove - M2000-02648-COA-R3-CV View
Bedford County - This is an action to recover the balance due on a contract for the sale of timber. The purchaser's defense was impossibility of performance, because the seller had allegedly destroyed access. The seller testified that the purchaser cut and removed 95 percent of the timber, while the purchaser said he removed only about 40 percent owing to lack of access. The trial judge awarded the seller a judgment for the balance owing less some off-sets not relevant here. We affirm.

State et al vs. A.D. Wright, et ux, et al - M2000-03198-COA-R3-CV View
Davidson County - Edwin Lee Nix and Ira M. Nix ("Purchasers") bought a parcel of land ("Property") at a tax sale in September 1999. Other than the tax lien, Purchasers' title search uncovered no liens on the Property. Unbeknownst to Purchasers, the Property had been devised to a previous owners' daughter who had given a Deed of Trust for the Property to Associates Financial Services Company, Inc. ("Lienholder") as security for a loan. In May 2000, pursuant to Tenn. Code Ann. § 67-5-2701(a), the Lienholder filed a Notice of Redemption on the Property to which Purchasers objected. Part of the basis of Purchasers' objection was that the Lienholder's security interest in the Property was not within the chain of title and, therefore, the Lienholder had no standing to redeem the Property. The Trial Court referred the question to the Clerk and Master, acting as Master. After a hearing, the Master found that the Lienholder was a "valid redemptor" under the redemption statute, and the Trial Court subsequently concurred with this finding. Purchasers appeal. We affirm.

Louisiana Saftey Systems, Inc., vs. Tengasco, Inc. et al - E2000-03021-COA-R3-CV View
Knox County - The primary question in this appeal is did the Trial Court err in refusing to vacate an arbitration award determining the respective liabilities between the two defendants. Defendant and third party Plaintiff Tengasco, Inc. ("Tengasco") argues that the award should be vacated because there was no arbitration agreement in effect. Pursuant to Tenn. Code Ann. § 29-5-313(a)(5), we conclude that because these issues were submitted to arbitration with no objection being made to the Trial Court or to the arbitrator that there was no arbitration agreement in effect at the relevant time, the arbitration award cannot be attacked on that basis. The decision of the Trial Court is, therefore, affirmed.

Lori Castle vs. Jeffrey Baker - E2000-02772-COA-R3-CV View
Sullivan County - These parties were divorced in May 1992. Custody of their daughter, Brittany, then 5 years old, was awarded to Mother pursuant to an Marital Dissolution Agreement [MDA] which obligated Father to pay $575.00 monthly support. About three months after the divorce was granted, the custodial care of Brittany was transferred to Father, by agreement of the parties and without recourse to the Court. In June 1998, Mother sought contempt liability against Father alleging that he was in arrears with his child support obligation in the amount of $40,800.00: at trial, the amount was stipulated to be $36,800.00. Father responded by filing a petition for change of custody, alleging that Brittany had resided with him for several years, a material change in circumstances. He also sought forgiveness of the arrearage. The Trial Court found a change in circumstances and awarded custody of Brittany to her father who was also credited with the monetary value of the necessities he furnished Brittany from August 1992 through February 1997. Mother appeals. We affirm.

Leon William G.C. vs. D.F. Shoffner Inc. - E2000-01877-COA-R3-CV View
Blount County - This is a suit by a general contractor against a sub-contractor for breach of contract and negligence in installing heating, ventilation and air conditioning equipment. The Trial Court granted summary judgment in favor of the sub-contractor, resulting in this appeal. We find in light of the Supreme Court case of Harris v. Chern, which was delivered after the Trial Court ruled on the motion to alter or amend, that the order overruling the motion should be vacated and the Trial Court should reconsider it in light of Harris. We accordingly vacate the order overruling the motion to alter or amend, and remand.

State ex rel Elizabeth Durrant vs. Brittain Howard - E2000-02072-COA-R3-CV View
Knox County - In this custody dispute, the Trial Court gave custody to the father. The mother appealed. We affirm.

Joe Jones v. Mary McMurray, et al - M2000-01959-COA-R3-CV View
Williamson County - In this malicious prosecution action, Joe T. Jones ("Plaintiff") appeals the Trial Court's grant of summary judgment to the defendants after concluding there was no genuine issue of material fact supporting Plaintiff's allegation of fraud surrounding entry of a judgment against Plaintiff in the underlying lawsuit. We affirm the judgment of the Trial Court.

Parks Properties, et al vs. Maury County, et al - M1997-00235-COA-R3-CV View
Parks Properties and Columbia Warehouses, Inc. have filed a petition pursuant to Tenn. R. App. P. 39 requesting a rehearing of this court's August, 17, 2001 opinion. We requested and have now received an answer to this petition on behalf of Maury County and Judy Langsdon. Parks Properties and Columbia Warehouses insist that our conclusion that they lacked a protectable property interest in constructing the two warehouses without installing the automatic required sprinkler systems is based on our "misunderstanding that the warehouses would have contained tobacco or other combustible products." They assert that "there was never any evidence before the trial court that the warehouses would be used to store tobacco or other combustible products." This argument misses the point. The lynchpin of our opinion is that the record contains no evidence (1) that the Parks family ever told any county official that tobacco and other combustible materials would not be stored in these warehouses and (2) that the Parks family never sought a waiver of the automatic sprinkler requirements under Section 402.4.1 exception

John Maloney, et al vs. Morristown Clinic Corp., et al - E2000-02729-COA-R3-CV View
Hamblen County - This is a wrongful death action based upon alleged medical malpractice. The plaintiffs are the parents of Emily LeAnn Maloney, who died six days after her birth. The trial court dismissed the plaintiffs' claims "for consortium and companionship damages" against the defendants – an obstetrician, his group, and a hospital – all of whom were involved in the birth and subsequent care of the plaintiffs' infant child. We reverse and remand for further proceedings.

Pilgrim Emmanual Baptist Church vs. Albert Buckingham, et al - M2000-02377-COA-R3-CV View
Davidson County - The parties agreed to the consolidation of two cases for trial and appellate proceedings. The plaintiffs in each case sought broad injunctive relief to correct alleged irregularities in the affairs of the church. All named parties, plaintiffs and defendants, were enjoined from disturbing or disrupting any worship service or church meeting, and certain safeguards were placed on church funds and property. Thereafter, the church moved for summary judgment which was granted, thus effectively terminating the litigation. Mr. Buckingham appeals.

David Brown vs. Ruth Johnson, Commissioner, TN Dept. of Revenue - M2000-02114-COA-R3-CV View
Coffee County - Taxpayer purchased baled straw from farmers which he sold to landscapers, sales tax free. A Notice of Assessment was served on the taxpayer for the sales tax, plus penalty and interest. After payments of these amounts taxpayer filed suit for refund, challenging the assessments. The trial judge found that the sales taxes were properly assessed, but that both interest and penalty should be waived. Both parties appeal. We hold that the taxpayer is liable for the tax together with penalty and interest.

Dolores E. Rossello vs. Michael Magill, Commissioner - M2001-00113-COA-R3-CV View
Davidson County - The judgment of the Chancery Court is affirmed pursuant to Rule 10, Rules of the Court of Appeals.

Charles David Killion vs. Johnny Huddleston - M2000-02413-COA-R3-CV View
Davidson County - This is an action for damages for negligent misrepresentation. The plaintiff invested $50,000.00 in Eureka Vacuum Cleaner Company at the advice and urging of the unlicensed defendant who was to receive a substantial commission. The investment was a scam. Recovery for the loss was allowed. We affirm.

Walter W. Carlen, Sr., et al vs. Ronald E. Jackson - M2000-02564-COA-R3-CV View
Putnam County - The defendant asserted a comparative fault defense to a tort claim against him arising from his operation of a truck. He attributed fault to General Motors Corporation and Carlen Motors Inc. the manufacturer and prospective seller, respectively, of the truck. The defendant did not respond timely to a request for admission and summary judgment was entered that the defendant could not assert the affirmative defense attributing fault to General Motors and Carlen Motors Inc.

Tomkats Catering, Inc. vs. Ruth E. Johnson, Commissioner of Revenue, State of TN - M2000-03107-COA-R3-CV View
Davidson County - This is a sales tax case. The tax period is from December 1, 1990 through January 31, 1994. During this period TomKats, a catering business, charged its customers a fixed, per unit price for food, but provided optional services - waiters, bartender, bar backs, show chefs, valets - for an additional charge, which was billed separately. The Commissioner ruled that such optional services were a "part of the sale," and assessed a tax deficiency which TomKats paid and filed this action for a refund which was unavailing. The judgment is reversed.

Jeanne Alice Gabel vs. Todd Edward Gabel - E2000-02585-COA-R3-CV View
Sevier County - The trial court entered a default judgment against the defendant in this divorce case even though the defendant had filed an answer within the time frame set forth in Rule 12.01. We conclude that entry of the default judgment was not appropriate when the defendant timely filed an answer, and, therefore, vacate the judgment of the trial court.

State of Tn Dpt. of Children's Services vs. Angela Knowles Huffman - E2000-03176-COA-R3-CV View
Sullivan County - Angela Knowles Huffman appeals a judgment of the Juvenile Court for Sullivan County which terminated her parental rights as to her son, L.T.H. and her daughter, R.E.T. She contends on appeal that the evidence sought to justify termination does not meet the clear and convincing test. We affirm.

James Metzger, et al vs. Heritage Auto Outlet, LLC, et al - E2000-0221-COA-R9-CV View
Hamilton County - In this Rule 9 interlocutory appeal Heritage Auto Outlet, LLC, insists the trial court had authority to enlarge the time for it to file responses to request for admissions, and on appeal that because service of process was defective, its responses were timely. We hold the responses were timely and remand the case for further proceedings.

Ronald Dwayne Carter vs. Paulette D'Anne Carter - M2001-00692-COA-R3-CV View
Sumner County - This is an appeal by Paulette D'Anne Carter from the refusal of the trial court to set aside a default judgment and a final judgment adjudicating divorce and custody. We affirm the trial court.

John E. Gaines vs. TN Dept. of Correction - M2001-00268-COA-R3-CV View
Davidson County - John E. Gaines is an inmate in the custody of the Tennessee Department of Correction and while in custody at Middle Tennessee Correctional Complex Annex was a work release inmate. He was charged with violation of T.D.O.C. policy for failure to timely appear at his job site pickup station following the workday of May 10, 2000. Upon conviction in prison disciplinary proceedings and exhaustion of appellate remedies within the Tennessee Department of Correction, he filed, in the Chancery Court for Davidson County, a petition for a writ of common law certiorari. The Chancellor sustained a motion to dismiss under T.R.C.P. 12(6) and, upon consideration of the record, we affirm the judgment of the Chancellor.

Dean Kinningham vs. State of TN - M2001-00495-COA-R3-CV View
Appellant was an inmate housed at Riverbend Maximum Security Institution, having been transferred to this secure facility after overpowering a guard and forcibly escaping confinement at Claiborne County Jail. He was convicted and sentences imposed upon him for aggravated robbery, aggravated burglary, possession of a Schedule II controlled substance for sale, possession of a handgun by convicted felon and felony escape, these sentences being imposed on August 3, 1999. Appellant was assaulted by a fellow inmate and filed claim against the State for alleged negligent custody or control of persons resulting in the inmate attack. The Claims Commission rendered summary judgment for the State and we affirm.

Eric Cordell Pendleton, et al vs. Joseph Gower Mills - M2000-03097-COA-R3-CV View
Davidson County - This appeal involves a dispute between two prisoners incarcerated at the Riverbend Maximum Security Institution and a corrections officer over the confiscation of a draft note one prisoner desired to pass to the other. One of the prisoners filed a grievance over the confiscation of his note. Before the prison's grievance procedures had been exhausted, both prisoners filed a pro se 42 U.S.C. § 1983 (1994) action in the Circuit Court for Davidson County, alleging that the corrections officer had violated his oath of office, unlawfully discriminated against them based on their race, and unlawfully interfered with their right of access to court. The trial court granted the corrections officer's motion for summary judgment based on the prisoners' failure to exhaust their remedies before filing suit. Both prisoners have appealed. We have determined that the trial court erred by dismissing the prisoners' complaint for failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a) (1994 Supp. V 1999). However, we have also determined that the complaint of one of the prisoners is subject to dismissal on other grounds.

Joe/Lovie Ross vs. Shelby Co. Healthcare - W2000-01553-COA-R3-CV View
Shelby County - This appeal arises from the contraction of the HIV virus by the appellant after he received blood transfusions from the appellees. The appellants brought a complaint with the Circuit Court of Shelby County against the appellees but then filed a voluntary dismissal without prejudice. The appellants refiled the complaint against the appellees. Process for the appellees was issued but returned unserved. The appellants failed to reissue process within one year. The appellants filed a motion for enlargement of time to issue new process pursuant to Rule 6.02 of the Tennessee Rules of Civil Procedure. The trial court denied the appellants' motion and dismissed the complaint against the appellees. The appellants appeal from the denial of their motion and the dismissal of the complaint against the appellees by the Circuit Court of Shelby County. For the reasons stated herein, we affirm the trial court's decision.

Michael Cheslock vs. Bd. of Admin., etc . - W2001-00179-COA-R3-CV View
Shelby County - On December 14, 1995, Memphis Police Lieutenant Michael Cheslock appeared before the Pension Board of Memphis, Tennessee, to request a line of duty disability pension as provided by the Memphis Code of Ordinances, Section 25-1(27). Mr. Cheslock had been diagnosed by two psychiatrists as disabled by job related Post Traumatic Stress Disorder. The Pension Board refused the line of disability pension, determining that Mr. Cheslock did not meet the requirements as defined by the code. Mr. Cheslock filed a petition for writ of certiorari in the Chancery Court of Shelby County. The petition was denied and this appeal followed. We affirm.

Cases posted the week of 09/10/2001
In the Matter of: All Assessments, Review of Ad Valorem Assessments of Public Utility Companies for Tax Year 1999 and Tax Year 2000 - M2000-00399-COA-R12-CV View
In these consolidated cases, a consortium of counties and cities appeals the actions of the Tennessee State Board of Equalization in reducing public utility assessments by fifteen per cent. Acknowledging that all sub-constitutional issues involved in the cases have been foreclosed by the decision of the Tennessee Supreme Court in In Re: All Assessments 1998, No. M1998-00243-SC-R11-CV, 2000 WL 1710174 (Tenn. Nov. 16, 2000), Appellants challenge the constitutionality of Tennessee Code Annotated section 67-5-903(f) and section 67-5-1302(b)(1). We hold both sections of the Code to be constitutional and affirm the decision of the Tennessee State Board of Equalization.

Pamela Jean Anness vs. Michael Mario Chapdelaine, Sr. - M2000-01792-COA-R3-CV View
Williamson County - This appeal arises from the appellee's filing of a Petition to Change Custody in the Chancery Court of Williamson County. Following a hearing, the trial court entered an Order granting custody of the parties' minor children to the appellee. The trial court ordered the appellant to pay child support in the amount of $1,480.00 per month. The appellant appeals the amount of child support set by the trial court. For the reasons stated herein, we affirm in part, reverse in part, and remand the trial court's decision.

John T. Bell, et al vs. Richard Gene Nolan, et al - M2000-02684-COA-R3-CV View
Coffee County - The parents of a woman who died after being assaulted by her husband on the premises of an American Legion post filed a wrongful death claim, which named the husband and the American Legion post as defendants. The parents alleged that the Legion's employees had failed to render assistance to the injured woman. The trial court dismissed the complaint against the American Legion, reasoning that the surviving spouse is the only party entitled to maintain an action for the wrongful death of the other spouse. We reverse.

Suzette Marie Elder vs. Sidney Lee Elder - M1998-00935-COA-R3-CV View
Franklin County - This appeal involves a post-divorce custody dispute precipitated by the custodial parent's decision to accept a job in Texas. The custodial parent requested the Circuit Court for Franklin County to permit the parties' children to accompany him to Texas and to adjust the visitation arrangements accordingly. The non-custodial parent responded by requesting the trial court to change custody. Following a bench trial, the trial court declined to change the existing custody arrangement and permitted the custodial parent to move to Texas. On this appeal, the non-custodial parent takes issue with both the denial of her petition to change custody and the approval of the custodial parent's move to Texas. We have determined that the record supports both of these decisions and, therefore, affirm the trial court.

David Rivkin vs. Lori Postal - M1999-01947-COA-R3-CV View
Williamson County - This appeal involves the financial aftermath of a short-lived nonmarital affair that ended badly. The man filed suit in the Chancery Court for Williamson County seeking a partition of the jointly-owned property and the return of his personal property. The woman responded with a counterclaim for breach of promise to marry. Following a bench trial, the trial court divided the jointly-owned property and awarded the woman $150,000 in damages on her breach of promise claim. Both parties now take issue with the judgment. The man asserts that the evidence does not support awarding the woman $150,000 or granting the woman such a large share of the jointly-owned property. The woman takes issue with the reduction of her share of the property because of damage to the man's personal property while it was in her possession. We have determined that the evidence does not support the trial court's conclusion that a promise to marry existed or that the woman was damaged by the failure of the marriage to take place. We have also determined that, with the exception of a cedar chest belonging to the man's grandmother, the manner in which the trial court divided the parties' jointly-owned property was proper.

Wendy King vs. Timothy King - M2000-00424-COA-R3-CV View
Warren County - This appeal arises from a divorce and custody dispute. The trial court awarded custody of the parties' four minor children to the father, and the court awarded the mother liberal visitation. The mother appeals the decision of the court below. For the following reasons, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.

Dana Allanmore Smith vs. Angela Childress Smith - M2000-02186-COA-R3-CV View
Montgomery County - In this post-divorce proceeding, wife filed petition to modify the prior decree as to child support, custody, and visitation. The trial court modified a previous consent order and set husband's child support with an upward deviation from the guidelines. Husband appeals, and both parties present issues for review. We affirm in part, reverse in part, and remand.

Rudolph Powers vs. Sg. Joel Smith - W2000-02290-COA-R3-CV View
Lake County - This is an appeal by a prisoner plaintiff seeking review of a disciplinary action by prison officials. The trial court dismissed plaintiff's petition for review because he failed to file it within sixty days as required by Tennessee Code Annotated § 27-9-102. On appeal, we affirm.

James Garrett vs. Isiah Roswer - W1999-02369-COA-R3-CV View
Shelby County - This is a dispute among the members and officials of a church and the church pastor. The plaintiff church members and officials filed for injunctive relief against the defendant pastor of the church, seeking to remove him as pastor and prevent him from disposing of or eroding church assets. The trial court enjoined the pastor defendant from disposing of, eroding or concealing church assets, and also ordered an election. Under the court-ordered church election, the defendant was removed as pastor of the church. Subsequently, the defendant pastor executed a trust deed encumbering certain church properties. After the trust deed was foreclosed and the property was sold at a foreclosure sale, the defendant pastor filed a counter-complaint in the pending suit, alleging that he was the successful bidder at the foreclosure sale and that title of the church property should be transferred to him. In payment of his bid, the defendant pastor tendered bonds issued by the church. The trial court referred to a special master eight issues relating to the ownership and value of the bonds. The special master and trial court found that the defendant pastor had not established that he paid for the bonds. The defendant pastor appeals, arguing that the trial court erred in its finding on the bonds and that it failed to address or take evidence on additional issues raised in his counter-complaint. We affirm the decision of the trial court on the bonds, but remand the cause for proof on the remaining issues.

Gloria Lane vs. W.J. Curry - W2000-01580-COA-R3-CV View
Shelby County - This case involves a dispute about the responsibility for trees on adjacent properties. The plaintiff and defendant own adjacent properties. Located on the defendant's property are three large oak trees whose branches overhang the plaintiff's roof. The roots from the trees grow onto the plaintiff's property and have infiltrated the plaintiff's sewer lines on several occasions. After a limb from one of the trees fell through the plaintiff's roof, the plaintiff complained to the defendant. The defendant twice sent someone to cut back the trees' branches. The plaintiff continued to complain about the trees, and the defendant refused to provide any additional assistance. This lawsuit ensued. The trial court found that the plaintiff's only remedy was self-help. The plaintiff now appeals. We affirm.

Antonio Sweatt vs. Billy Compton - W2001-00002-COA-R3-CV View
Lake County - This appeal arises from a specialist physician's recommendation that the appellant, an inmate, undergo nasal surgery. The Utilization Review Committee of the Tennessee Department of Correction denied the appellant's recommended surgery. The appellant filed a complaint against the appellees, prison employees of the Lake County Regional Correctional Facility, alleging federal constitutional violations, negligence, and medical malpractice. The appellees filed a motion for summary judgment. The trial court granted the motion for summary judgment. On appeal, this Court reversed the grant of summary judgment in favor of the appellees on the Eighth Amendment claim that arose out of the delay in the recommended surgery and remanded for further discovery. This Court affirmed the grant of summary judgment in favor of the Appellees on all other claims. The trial court permitted the parties to conduct further discovery on the Eighth Amendment claim concerning the delay in the recommended surgery. The trial court granted summary judgment to the appellees. The appellant appeals the trial court's grant of summary judgment in favor of the appellees. For the reasons stated herein, we affirm the trial court's decision.

Carl O. Koella, Jr. vs. Fred McHargue, et ux - E2001-00544-COA-R3-CV View
Blount County - Defendants have right of first refusal on tract of real property. The Trial Court held that the giving of a quitclaim deed did not trigger the right of first refusal. Defendants appealed, we affirm.

Cases posted the week of 09/03/2001
Marilyn Willocks Jeffries vs. Irene Gamble, et al - E2000-03120-COA-R3-CV View
Blount County - After purchasing approximately 30 acres of land from Defendant, Plaintiff later discovered that the deed had been incorrectly drafted. Plaintiff brought suit seeking to have the deed reformed. The Trial Court held that Plaintiff had proven by clear and convincing evidence that the parties had intended for a .61 acre tract of land to be part of the property sold to Plaintiff and the deed should, therefore, be reformed to include this additional land. Defendants appeal. We affirm.

Julie Durbin, et vir vs. Sumner Co. Regional Health Sys., Inc., et al - M2000-02109-COA-R3-CV View
Sumner County - The appellants sued the appellees for claims connected with the death of the appellants' twin fetuses. The jury found in favor of the appellees, and, in addition, after the jury verdict, the trial court granted appellee Dr. Caldwell's motion to dismiss on the ground that the statute of limitations had run before he was sued. The appellants argue that this court should reverse the trial court's order dismissing Dr. Caldwell and overturn the jury's verdict. We reverse the trial court's order dismissing Dr. Caldwell, but affirm the jury verdict in his favor and in favor of the other appellee.

Tanya Tucker, et al vs. Capitol Records, Inc. - M2000-01765-COA-R3-CV View
Tanya Tucker, et al vs. Capitol Records, Inc. - M2000-01765-COA-R3-CV ( Concur) View
Davidson County - In this two party action, the trial court certified three partial summary judgment orders to be final judgments pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. Plaintiff appeals, and Defendant supports the appeal. Both parties assert that the trial court's finality designations involve multiple claims under Rule 54.02. After review, we find that the dispute between these two parties involves a single claim and that none of the partial summary judgment orders entered in the trial court are final judgments within the meaning of the "multiple claims" provisions of Rule 54.02. This Court is, therefore, without jurisdiction of this appeal. The judgments of the trial court are vacated, and the case is remanded for trial on the merits.

In re: L.S.W., et al - M2000-01935-COA-R3-JV View
Robertson County - This case involves the termination of parental rights of the mother of four children who were removed from the mother's home by the Department of Children's Services in 1998 and placed in foster care. DCS devised a Plan of Care for the mother, which, among other things, required her to address her drug and alcohol addictions. During the two and one-half years between the removal of the children from the home and the hearing on the petition to terminate parental rights, the mother made token efforts to improve her situation, but her substance abuse continued. The trial court terminated the mother's parental rights on multiple grounds, including the ground that the conditions that led to the children's removal continued to persist with little likelihood of remedy. Because DCS has established grounds for termination and has established that termination is in the best interest of the children, we affirm.

Jimmy Joe Savage, et al vs. Don Hildenbrandt - M1999-00630-COA-R3-CV View
Perry County - This appeal involves a dispute among neighbors arising out of a couple's decision to place a double-wide mobile home on their property. After one of their neighbors blocked the access road to their property to prevent them from setting up their mobile home, the couple who owned the mobile home filed suit in the Chancery Court for Perry County seeking injunctive relief and damages. In response, two of the neighboring property owners requested the trial court to establish the boundary lines, to enjoin the couple from encroaching on their property, and to award actual and punitive damages for the damage that the couple's encroachment had caused to their property. Following a bench trial that continued past midnight and a series of post-trial motions requesting various corrections in the judgment, the trial court eventually established the disputed boundary line and awarded the couple a $6,110.50 judgment against one of their neighbors to compensate them for the damages stemming from the delay in setting up their mobile home. The two neighboring property owners have appealed. They take issue with (1) the trial court's decision to hold court past midnight, (2) the manner in which the trial court considered and disposed of their post-judgment motions, (3) the trial court's decision regarding the location of the southern boundary line of the couple's property, and (4) the trial court's failure to reduce the $6,110.50 judgment by the amount of the damages the couple's encroachment had caused. We have concluded that the trial court did not commit reversible error during either the trial or the post-trial proceedings and that the trial court's decision to award the couple $6,110.50 is supported by the evidence. However, we have also concluded that the evidence preponderates against the trial court's decision regarding a portion of the couple's southern boundary line. Accordingly, we remand the case for the sole purpose of correcting the error regarding a portion of this boundary line.

Catherine Jackson vs. Bruce Jackson - E2001-00287-COA-R3-CV View
Hamilton County - Catherine Dean Jackson ("Plaintiff") filed a Complaint for divorce against her husband, Bruce Lane Jackson ("Defendant"). The parties entered a stipulation, which was approved by the Trial Court, in which they agreed both parties were entitled to a divorce and agreed that Plaintiff be granted custody of their minor child. The parties, however, did not agree on the remaining issues of alimony and the division of marital property and liabilities. Over approximately four years, the Trial Court referred these issues to a Special Master on three occasions. Upon each referral by the Trial Court, the Special Master held a hearing in which he heard arguments and, during the first two hearings, heard testimony from the parties and witnesses. After each hearing, the Special Master filed his report, but did not file a transcript of the hearing with the report as required by Tenn. R. Civ. P. 53.04(1). Among other findings, the Special Master recommended that Plaintiff receive "rehabilitative alimony for life . . . " in the amount of $1,000 per month and that Defendant pay the parties' entire 1994 tax liability. With the exception of modifying the Special Master's alimony recommendation to alimony in futuro, the Trial Court adopted the Special Master's recommendations which precipitated Defendant's appeal. Due to the Special Master's failure to comply with Tenn. R. Civ. P. 53.04(1), we vacate the portion of the the Trial Court's judgment relative to alimony and the 1994 tax liability, affirm the remainder of the judgment, and remand.

Arthur/Mary Anderson vs. John Howser - W2000-00937-COA-R3-CV View
Shelby County - This is a medical malpractice case. The defendants filed a motion for summary judgment, supported by an affidavit from the defendant physician. The plaintiffs filed the opposing affidavit of an expert physician. When the defendants attempted to depose the plaintiffs' expert, they were informed that he would not be testifying at trial. However, the plaintiffs' expert's affidavit was never withdrawn from the record, nor was his testimony recanted. The trial court gave the plaintiffs additional time to secure an expert for trial. The plaintiffs failed to secure an expert within the time period and filed a notice of voluntary non-suit. The trial court granted the defendants' motion for summary judgment, holding that the plaintiffs' response to the motion for summary judgment must be supported by the affidavit of an expert who is expected to testify at trial. The plaintiffs appealed. We affirm. Where the plaintiff submits the affidavit of an expert in response to a motion for summary judgment, and it is undisputed that the expert will not testify for trial, the plaintiff has not demonstrated that he has a justiciable claim warranting a trial, and the granting of summary judgment is appropriate.

Cases posted the week of 08/27/2001
Ruth Wilson v. Landon Snapp, Jr. - E2001-00172-COA-R3-CV View
Sullivan County - In this suit the Trial Court held a purported deed from Ruth N. Wilson to Landon Haynes Snapp, Jr., and Gene L. Snapp was champertous and void. The Snapps appeal, contending this holding was in error. We affirm.

Carol Coffey vs. State - M2000-00831-COA-R3-CV View
Davidson County - This is an appeal by a prisoner plaintiff seeking review of a decision by the Board of Paroles denying his application for parole. The trial court dismissed the plaintiff's petition because it was not filed within sixty days as required by Tennessee Code Annotated § 27-9-102, and denied the plaintiff's motion for relief under Tennessee Rule of Civil Procedure 60.02. The plaintiff now appeals. We affirm.

John Floyd vs. Carolyn Floyd - M2000-02344-COA-R3-CV View
Rutherford County - When husband and wife divorced, they signed a marital dissolution agreement which was incorporated into the Final Decree of Divorce providing, inter alia, that husband would have visitation rights with wife's daughter by a previous marriage and husband would in turn pay college tuition and expenses for the child and would leave to the child by Will one-fourth of his estate. A dispute arose as to the extent of visitation, and husband filed a petition to establish visitation rights. Wife filed a petition to require husband to continue his obligations expressed in the marital dissolution agreement. The trial court felt that there was no meeting of the minds between the parties with regard to the visitation issue; therefore, there was no valid contract. Husband appeals. We reverse and remand.

Chattagooga-Hamilton County Hospital Authority vs. Bradley County - E2001-00032-COA-R3-CV View
Hamilton County - Plaintiff sued for payment of medical bills incurred by arrestee when he was shot by Bradley County officers during his apprehension. The Trial Court held the County was only responsible for medical bills incurred by prisoner's "confined in the jail" under Tenn. Code Ann. §41-4-115, and arrestee was not confined in jail within the meaning of the statute. On appeal, we reverse.

Johnny McGowan vs. Jimmy Farr II, et al - E2000-02519-COA-R3-CV View
Morgan County - Johnny McGowan ("Plaintiff"), an inmate at the Brushy Mountain Correctional Complex filed this lawsuit against the various defendants alleging violations of federal and state law after medication was confiscated from his cell. Plaintiff improperly filed a grievance which was returned to him with instructions on how to properly process same. Instead of refiling the grievance in accordance with proper procedure, Plaintiff filed this lawsuit. The Trial Court granted summary judgment to the defendants. We affirm, concluding that Plaintiff failed to exhaust his administrative remedies which bars all of his claims.

Arvil Holt, et a; vs. Zula Parton - E2000-02695-COA-R3-CV View
Sevier County - Arvil A. Holt and Beulah Holt Jones ("Plaintiffs") filed this will contest against one of their sisters, Zula Holt Parton ("Defendant"), regarding their Mother's will ("Will"). The case was tried by a jury. During the second day of the jury's deliberations, the Trial Court engaged in ex parte communications with the jury regarding their answers to special interrogatories in a "Special Verdict Form" and their apparent deadlock on the general verdict. The jury foreperson indicated on two occasions that the jury would like to deliberate further. Over objection of Defendant's counsel, however, the Trial Court did not allow for further jury deliberations and entered its judgment. Defendant appeals. We vacate and remand.

Paul Seaton, et al vs. Richard Rowe, et al - E2000-02304-COA-R3-CV View
Monroe County -This is an action for specific performance of an option agreement for the sale of some farmland acreage, from which a 60-acre tract was excepted. The trial court dismissed the action, holding that the option agreement did not satisfy the statute of frauds because the description of the excepted property was inadequate and that the deficiency could not be remedied by parol evidence. Thereafter, the plaintiffs filed a motion to "reopen the proof" to introduce evidence to support reformation of the description of the excepted property. The motion was denied. The plaintiffs appeal, arguing that the trial court erred in (1) finding that the option agreement did not satisfy the statute of frauds; (2) refusing to consider parol evidence of the location of the excepted property; and (3) refusing to "reopen the proof" on the issue of reformation. The defendants argue that the appeal is frivolous. We find that the option agreement is sufficiently definite to satisfy the statute of frauds and that parol evidence should have been admitted to locate the excepted property. We therefore vacate the judgment of the trial court and remand for further proceedings consistent with this opinion.

Thomas Smith vs. Arthur Johnson - W2000-00063-COA-R3-CV View
Tipton County - This is a wrongful death case. A car crossed the center line and collided with a dump truck, causing the dump truck to strike and kill three pedestrians, including the plaintiff's wife and son. The plaintiff sued the driver of the car, the driver of the dump truck, and the company for which the dump truck driver was hauling asphalt. The trial court granted summary judgment in favor of the company, finding that the truck driver was an independent contractor. At trial, the jury found that the driver of the car was 100% at fault for the accident, and that the truck driver bore no fault in the accident. The plaintiffs did not move for a new trial. The plaintiff filed a notice of appeal. We affirm the trial court's grant of summary judgment to the company, finding that the liability of the company would be derived from the fault of the truck driver in the operation or maintenance of his dump truck, and that the company could not be held liable where the jury found that the truck driver bore no fault in the accident.

Emanuel Lewis vs. Dr. Dwight Moore - W2000-02682-COA-R3-CV View
Shelby County - This appeal involves a claim of medical malpractice. The plaintiff's minor child suffered brain damage during delivery. The only remaining defendants, Dr. Moore and Dr. Lawrence, moved for summary judgment, which the trial court granted. Plaintiff appeals. For the following reasons, we affirm the trial court's grant of summary judgment to defendants.

Kanta Keith, et al vs. Gene Howerton, et al - E2000-02703-COA-R3-CV View
In this appeal from a judgment of the Knox County Circuit Court the Plaintiffs/Appellants, Kanta Keith, Darlene Keith and Walter Jackson, contest the Trial Court's ruling that the Defendants/Appellees, Gene Ervin Howerton and Easy Money, Inc., did not violate the Tennessee Consumer Protection Act of 1977 with respect to pawn transactions entered into with the Plaintiffs. The Plaintiffs also contest the amount of damages awarded by the Trial Court for property belonging to them which was stolen while in possession of the Defendants. We affirm in part as modified, reverse in part, and remand for proceedings not inconsistent with this opinion. We adjudge costs of the appeal against the Defendants, Gene Ervin Howerton and Easy Money, Inc.

Debra Smith vs. EZ Pawn Co., et al - E2000-02741-COA-R3-CV View
Anderson County - This is a suit by Debra Smith seeking damages against EZ Pawn Company and others because of sexual harassment visited upon her by James Cameron, the owner of the company. The Trial Court found that her claim under the Tennessee Human Rights Act and under the Malicious Harassment Statute were barred by the applicable statute of limitations. We affirm.

Provident Life & Accident Ins. vs.Tina Shankles, et al - E2000-02073-COA-R3-CV View
Hamilton County - This is an interpleader bill filed by Provident Life and Accident Insurance Company against four named Beneficiaries in a policy of insurance issued to their father, Arnold Joe Johnson. Two of the Beneficiaries were children by a former marriage of Mr. Johnson, who were added as such shortly before his death. The two Beneficiaries by a subsequent marriage insisted that the provisions of a divorce decree precluded Mr. Johnson from adding his other two children as Beneficiaries. The Trial Court found that all four should share in the proceeds of the policy equally and entered a summary judgment to that effect. We vacate and remand.

Paull Anderson vs. Edward Mezvinsky - E1998-00795-COA-R3-CV View
Washington County - Paull Anderson sues Edward Mezvinsky, seeking damages for breach of the contract to pay Mr. Anderson certain fees in connection with solicitation of donations to the Foundation for Advancement, Education and Employment of American Indians. The jury found in favor of Mr. Mezvinsky. Mr. Anderson appeals, raising the issues set out in our opinion. We find the issues raised on appeal to be without merit and affirm the judgment entered.

MacDonald Burkhart vs. U.S. Commerce Equipment Finance - E2001-00069-COA-R3-C View
Knox County - This is an action brought to recover monies allegedly overpaid under a finance lease that was coupled with an option to purchase. The plaintiff, J. MacDonald Burkhart, M.D., and the defendant, U.S. Commerce Equipment Finance, LLC, ("U.S. Commerce"), entered into an agreement, under the terms of which Burkhart would acquire certain equipment by way of a finance lease with an option to purchase. Subsequent to the expiration of the initial term, Burkhart continued, according to him by mistake, to make installment payments and did not exercise his option to purchase. Nearly a year later, he did exercise the option. After U.S. Commerce refused Burkhart's request for a refund of installments allegedly paid by mistake, Burkhart filed this action. The trial court found in favor of U.S. Commerce except to the extent of one monthly "overpayment" by Burkhart. Burkhart now appeals, arguing that the trial court erred (1) in failing to award him the installment payments made by him after the expiration of the original term; (2) in failing to award him prejudgment interest; and (3) in failing to award him attorney's fees. U.S. Commerce argues that the trial court erred in awarding Burkhart the equivalent of one monthly payment. We affirm.

Deborah Warren vs. James Ferguson - W2000-02027-COA-R3-CV View
Weakley County - This appeal involves a complaint to establish parentage and set child support. The court below ordered genetic testing, which proved that James R. Ferguson is the natural father of the children at issue. The court also entered a judgment of $8,623.00 for retroactive child support, $280.00 for the cost of genetic testing, and the court reserved the issue of current support until Mr. Ferguson is released from prison. We vacate the trial court's final order based on our conclusion that the trial court erred in failing to rule on Mr. Ferguson's Motion for the Appointment of Counsel, or alternatively, his request that the matter be held in abeyance until he is released from incarceration.

Susan Weiss vs. State Farm - W2000-02506-COA-R3-CV View
Shelby County - The Weisses procured supplemental insurance from State Farm through its agent, Mr. Brooks. In procuring such insurance, Mr. Weiss rejected uninsured/underinsured motorist coverage. Mrs. Weiss was involved in an automobile accident wherein she sustained damages exceeding the amount covered by her insurance policy. As the other driver involved in the accident was either uninsured or underinsured, the Weisses sought recovery from State Farm. State Farm denied the claim, determining that the Weisses did not have coverage under their umbrella policy. The Weisses brought an action against State Farm and Mr. Brooks. State Farm and Mr. Brooks filed a motion for summary judgment, which the trial court granted. We affirm.

Bobbie Mixon vs. Great Southern Ins. - W2000-00205-COA-R3-CV View
Shelby County - This case involves the voiding of a life insurance policy. The insurer refused to pay because the insured failed to disclose in his application the name of a physician who had treated him for high blood pressure. The beneficiary under the policy filed suit against the insurer, asserting that the failure to disclose was not a misrepresentation, and that the policy could not be voided because the form requesting the information was not attached to the policy, as required by Tennessee Code Annotated § 56-7-2307(4) (2000). The trial court granted summary judgment to the insurer. On appeal, we affirm, finding that the failure to disclose was a misrepresentation that increased the risk of loss to the insurer.

Gwendolyn Henderson vs. Dept. Children Serv . - W1999-01940-COA-R3-CV View
Shelby County - This is a suit for the termination of parental rights. The Appellee filed a petition to terminate the Appellant's parental rights to two of her children. Following a hearing, the Juvenile Court of Memphis and Shelby County entered an order terminating the Appellant's parental rights. The Appellant appeals the trial court's order terminating her parental rights. For the reasons stated herein, we affirm the trial court's decision.

In the matter of Katherine C. - W2000-01714-COA-R3-CV View
Madison County - The trial court terminated the parental rights of Mother upon a finding that the grounds for termination were proven by clear and convincing evidence and that termination was in the minor child's best interests. We affirm the judgment of the trial court.

Kevin Johnson vs. Donna Johnson - M2000-00358-COA-R3-CV View
Williamson County - This appeal involves the dissolution of a ten year marriage. The trial court awarded the husband a divorce after concluding that the wife was guilty of inappropriate marital conduct. The trial court granted custody of the parties' three minor children to the father and refused the mother visitation rights, and held her in criminal contempt of court. The wife now appeals. We have determined that the trial court properly awarded custody to the father but the trial court erred in refusing the mother visitation, and in convicting her of criminal contempt. Accordingly, we affirm in part and reverse in part.

Randy Story vs. Chastity Shelton - M2001-01009-COA-R3-JV View
Dickson County - The Trial Judge ordered a surname change of two minors to the father's surname, without hearing evidence on the issue. On appeal, we vacate and remand for an evidentiary trial.

Southwest Williamson County Community Assoc. et al vs. Bruce Saltsman - M2001-00943-COA-R3-CV View
Being dissatisfied with the State's concept of, and planning for, the extension of State Route 840 through southwest Williamson County, three residents in the County, two nonprofit corporations, and a partnership that owns property in the County, sued J. Bruce Saltsman, Sr. ("the Commissioner"), in his official capacity as Commissioner of the Tennessee Department of Transportation ("TDOT"). Following a bench trial, the court below entered a final judgment including (1) a writ of mandamus ordering the Commissioner to perform a number of "duties" in connection with Route 840; and (2) a permanent injunction enjoining him from moving forward with the planning and construction of Route 840 through Williamson County until he complies with the trial court's order. The Commissioner appeals. In addition to other bases for reversal, he asserts that the trial court lacked subject matter jurisdiction of this controversy. We agree with the appellant that the trial court was without subject matter jurisdiction. Accordingly, we reverse the judgment below in its entirety and dismiss the petition.

Lonnie Pate vs. Cynthia Pate - M1998-00947-COA-R3-CV View
Wayne County - This appeal involves the dissolution of a 23-year marriage. The husband first filed a petition for divorce in the Chancery Court for Wayne County alleging that the wife was chemically dependent and had committed adultery. The wife counterclaimed for divorce, alleging that the husband had abused her physically and psychologically during the marriage. Following a bench trial, the trial court declared the parties divorced in accordance with Tenn. Code Ann. § 36-4-129(b) (Supp. 2000) and divided the remaining disputed items of marital property. On this appeal, the husband asserts (1) that there is no evidentiary foundation for the trial court's finding that the wife had suffered physical and psychological abuse throughout the marriage, (2) that the trial court erred by declaring the parties divorced, and (3) that the division of the marital estate was inequitable. We have concluded that the evidence does not preponderate against the trial court's finding that the husband engaged in inappropriate conduct during the marriage and, therefore, that the trial court did not err by declaring the parties divorced. We have also concluded that the trial court erred by awarding the wife more than an equal share of the value of the marital residence and by failing to award the husband an equal share of the remaining disputed items of marital property. Therefore, we modify the division of the marital estate accordingly.

G. Kline Preston vs. Garrett Realty Service, Inc. - M2000-02350-COA-R3-CV View
Davidson County -This matter comes to us on appeal from summary judgment granted due to Tennessee's lack of personal jurisdiction over Defendant. Plaintiff attempted to rent a condominium in Florida and sued Defendant in Tennessee for breach of contract after Defendant discovered a mistake in the quoted price and refused to rent the condo to Plaintiff for the quoted price. The circuit court determined that Tennessee had no personal jurisdiction over Defendant and dismissed the case. We affirm.

Tarrance Robinson vs. Neil Clement, et al - M2001-00365-COA-R3-CV View
Davidson County - This appeal involves a state prisoner housed at the Riverbend Maximum Security Institution who was disciplined for possessing a deadly weapon. After exhausting his internal appeals, the prisoner filed a common-law writ of certiorari in the Chancery Court for Davidson County, alleging that the disciplinary proceedings had violated his due process rights. The trial court granted the State's motion to dismiss the petition. On this pro se appeal, the prisoner asserts that the trial court erred by dismissing his petition. We have determined that the prisoner's petition does not state a claim upon which relief can be granted and, therefore, affirm the trial court.

Cases posted the week of 08/20/2001
Jerry Brooks vs. Melissa Ibsen, et al - E2000-02870-COA-R3-CV View
Union County - Jerry Brooks ("Plaintiff") contracted with Joe Ibsen d/b/a Century Wholesale Pool Supply, Inc. ("Defendant"), for the installation of a swimming pool. Plaintiff received a limited warranty. After the swimming pool developed several cracks and the parties could not reach agreement on the proper way to repair the pool, Plaintiff had the pool repaired in the manner recommended by an engineer he had retained. This lawsuit followed. The Trial Court awarded Plaintiff $61,531.28 in damages. We reduce the judgment to $51,371.28 and affirm as modified.

William Martin vs. Douglas Sizemore, et al - M1997-00203-COA-R3-CV View
Davidson County - This appeal involves a disciplinary proceeding against a licensed architect. Following a lengthy hearing, the Tennessee Board of Examiners for Architects and Engineers concluded that the architect had engaged in misconduct in the practice of architecture in connection with four projects and suspended his certificate of registration for three years. The architect appealed the Board's decision to the Chancery Court for Davidson County. The trial court reversed the Board's decision after determining that the decision was not supported by substantial and material evidence. On this appeal, the Board asserts that its suspension of the architect's certificate of registration has adequate evidentiary support. The architect renews his argument that the Board's proceedings violated his procedural due process rights because the attorney who prosecuted the State's case against him also served as the Board's lawyer in other matters. Except for a portion of the charges involving one project, we concur with the trial court's conclusion that the Board's decision lacked evidentiary support because the State failed to present expert testimony regarding the applicable standard of care. We have also determined that the architect has not carried his burden of demonstrating that the Board was actually biased against him because the lawyer who prosecuted the State's case also provided other, unrelated legal services to the Board. Accordingly, we affirm the trial court's judgment as modified herein and remand the case to the Board for further proceedings.

Frances Luna, et al vs. Michael Breeding, et al - M2000-01932-COA-R3-CV View
White County - Plaintiffs voluntarily dismissed their suit for personal injuries and damages. Defendants then filed a motion for discretionary costs with accompanying affidavit as to reasonableness and necessity. The motion was denied and Defendants appeal, contending the trial court abused its discretion in disallowing their motion. We find it did not and affirm.

Brenda King vs. Danny King, D.V.M. - M1999-02556-COA-R3-CV View
Davidson County - This is a divorce case. The parties divorced after 31 years of marriage. The trial court granted the wife a divorce on the grounds of inappropriate marital conduct. The wife was awarded alimony in futuro in the amount of $6000 per month for two years. After two years, the wife would receive $4500 per month and, upon remarriage, the amount of alimony in futuro would decrease to $2000 per month. The trial court also ordered the husband to pay $10,000 of the wife's attorney's fees. Both parties appeal; the wife appeals the division of marital property and the husband appeals the award of alimony. We affirm in part, modify in part, and reverse in part, affirming the award of alimony in futuro, modifying the amount of alimony and eliminating the award of alimony in futuro after the wife's remarriage.

Danny Thomas vs. Dr. Molly O'Toole, et al - M2001-00305-COA-R3-CV View
Davidson County - Appellant, Danny Ray Thomas, a prison inmate, brought suit against two medical doctors, Molly P. O'Toole and Donald J. Boatright, on September 1, 2000 alleging various acts of malpractice. On November 9, 2000, Plaintiff sought a default judgment. On November 15, 2000, counsel for Defendants made his appearance and, on November 22, 2000, answered the complaint. Both Defendants filed motions for summary judgment, which motions were granted by the trial court. Plaintiff appealed, and after consideration, we affirm the judgment of the trial court.

Fanning v. Wallen - E2001-00228-COA-R3 View
Cocke County - This case involves a dispute over a right-of-way. Following a bench trial, the court below decreed that the plaintiffs, Wayne Fanning and wife, Janet Fanning, have a 40-foot right-of-way across two tracts of land owned by the defendant, Shirley B. Wallen, providing access from the plaintiffs' property to a public road. The defendant appeals, arguing that the original reservation of the right-of-way by the defendant's grantor was not valid. The defendant further argues that, even if the reservation of the right-of-way was valid, the trial court erred in locating it as the court did. We affirm.

Mohamed Ali, M.D., vs. Fredia Moore and Danny Story - E2000-02534-COA-R3-CV View
Washington County - The Trial Court held the statute of limitations had run on plaintiff's Complaint. On appeal, we dismiss the appeal as not being timely filed.

Dept. of Children's Services vs. Jacqueline Rucker , In Re: SDR, D.O.B. 10/1/97 - E2001-01163-COA-R3-CV View
Roane County - At the behest of the State's Department of Children's Services, the Juvenile Court, after a trial, terminated the mother's parental rights to SDR. On appeal, we affirm

Shelton vs. Tidwell - E2000-02913-COA-R3-CV View
Knox County - Defendants sold plaintiff equipment which had been stolen. The Trial Court entered a Judgment for plaintiff for the purchase money. On appeal, we affirm.

Kimberly Caudill vs. William Howard Foley - M2000-01512-COA-R3-CV View
Williamson County - This appeal arises from an action seeking attorney's fees from a previous child custody action. After divorce, Mother was awarded custody of Child. Upon remarrying, Mother sought to move to Florida with Child. Father protested and sought primary custody of Child. Judge, finding the child relocation statutes unconstitutional, awarded Father custody. Mother hired Lawyer for an appeal of this ruling. While this appeal was pending, Father brought suit for child support. Lawyer sought recusal of Judge due to previous contact between them when Judge was an attorney. Judge refused to recuse himself and disqualified Lawyer. This action was appealed. While this appeal was pending, the child custody appeal was decided by this court and Child was returned to Mother's custody. Mother brought action in the trial court seeking fees from this first trial and appeal which Judge denied. Mother appealed this denial, with the result that the failure of Judge to recuse, the disqualification of Lawyer and the attorney's fees appeals were consolidated before this court. We affirm in part and reverse in part.

Ronald Davis vs. The Tennessean, et al - M1999-01602-COA-R3-CV View
Davidson County - The plaintiff filed a libel action against a newspaper, The Tennessean, its publisher and its editor, alleging his reputation had been harmed by a sentence in an article which stated that he had shot a man, when, in fact, his co-defendant had killed the victim. The trial court granted the defendants' motion to dismiss, finding the plaintiff to be "libel proof" in this matter because he had been convicted of aiding and abetting in the murder and incarcerated for the remainder of his life for the crime, "render[ing] any reputation he may have had virtually valueless." We affirm.

Richard Fawcett, natural father & custodial parent of Danielle Lynn Fawcett, deceased vs. Jarrod C. Adreon, et al - M2000-00940-COA-R3-CV View
Williamson County - This is a wrongful death case involving a police chase. A teenage passenger in a car was killed in an accident after a police officer chased the vehicle into a construction zone. The teenager's father sued the driver of the car and the city, alleging negligence. The city moved for summary judgment. The trial court granted the motion, finding that there was no dispute that the teenager was not an "innocent third party," and that this fact precluded the city from any liability for the result of the police chase. On appeal, we affirm the trial court's decision, holding that, under the circumstances in this case, under Tennessee Code Annotated § 55-8-108(e), a passenger in a vehicle that is fleeing from a law enforcement officer would be deemed a "suspected violator of the law" rather than a "third party" to whom the law enforcement officer owed a duty of care.

Project Creation, Inc., et al vs. Kenneth Neal, et al - M1999-01272-COA-R3-CV View
Wilson County - The trial court dismissed Plaintiffs' libel action and then granted Defendants' motion for sanctions pursuant to Tenn. R. Civ. P. 11.02(1) and 11.02(3), finding that the libel action was filed for an improper purpose and without factual support. The court awarded Defendants $9,262.90 in expenses and attorney fees. We affirm in part and vacate in part.

Volunteer Investments, Inc. vs. Feller Brown Realty & Auction Co., et al - M2000-02644-COA-R3-CV View
A developer who purchased three real estate tracts at auction filed suit to rescind the purchase on the grounds of misrepresentation or mutual mistake. The trial court dismissed his complaint. We affirm.

Frankie White, et al vs. Ronnie Gault, et al - M2000-00534-COA-R3-CV View
Coffee County - The plaintiff filed a Tenn. R. Civ. P. 60.02 motion, seeking to reinstate his claim after the Supreme Court reversed a decision cited by this court when dismissing his appeal. The trial court denied the motion. We affirm.

Cases posted the week of 08/13/2001
State, Ex Rel, Pernie Barger, et al vs. City of Huntsville , State ex rel, George Brawner, Sr., et al vs. City of Huntsville - E2001-00395-COA-R3-CV View
Scott County - The Trial Court held service of process on the City's Mayor under Tenn. R. Civ. P. 4.04(8) was insufficient. On appeal, we affirm.

Mr./Mrs. Woo-Jun Ki vs. State - W2000-02364-COA-R3-CV View
This appeal arises from a tragic fire on the campus of the University of Tennessee at Martin, in which Jong-Do Ki lost his life. Jong-Do Ki's parents, Mr. and Mrs. Woo-Jun Ki, filed suit against the state of Tennessee. The Claims Commissioner found that the State was negligent in that it failed to provide the minimum fire safety requirements mandated by the fire codes it had adopted. The Claims Commissioner also found that the Kis were entitled to recover damages for the wrongful death of their son pursuant to section 20-5-113 of the Tennessee Code. Additionally, the Claims Commissioner found that the Kis were entitled to recover the damages they suffered as a result of Jong-Do Ki's death – the pecuniary value of Jong-Do Ki's life. Because we hold that Jong-Do Ki is the only claimant in this case under section 9-8-307(e) of the Tennessee Code, we reverse in part, and we remand to the Claims Commission for further proceedings consistent with this opinion.

Joe Grant vs. Service Transport - W2000-02688-COA-R3-CV View
Shelby County - This appeal arises from a negligence claim filed by the appellee against the appellant in the Circuit Court of Shelby County. The appellant filed a motion for summary judgment or, in the alternative, to dismiss for failure to state a claim. The trial court denied the appellant's motion. The appellant filed a motion for permission to file an interlocutory appeal. The appellee filed an order of voluntary dismissal before the appellant's motion for permission to file an interlocutory appeal could be heard. The appellant appeals, arguing that the order of voluntary dismissal deprived it of the right to seek appellate review of the trial court's denial of its motion for summary judgment or, in the alternative, to dismiss for failure to state a claim. For the reasons stated herein, we affirm the trial court's decision.

Suzanne Gibson vs. James Prokell - W2000-01236-COA-R3-CV View
Suzanne Gibson vs. James Prokell - W2000-01236-COA-R3-CV (Concur) View
Shelby County - This is the fourth time that an aspect of this domestic dispute has come before this court. Both parties appeal and raise numerous issues, primarily involving child support and visitation. For the reasons set forth herein, we affirm in part, reverse in part, and remand to the court below for further proceedings consistent with this opinion.

Linda Poper vs. Joseph Rollins - W2000-00391-COA-R3-CV View
Shelby County - This is an uninsured motorist insurance case. The plaintiff's wife died as a result of injuries suffered in an automobile accident involving multiple vehicles. The husband sued several defendants for wrongful death. He settled out of court with all but one defendant. The single remaining defendant had only $10,000 in liability insurance coverage. The insurance company of the remaining defendant offered to settle for the full policy limit. The husband had an uninsured motorist insurance policy with $100,000 in coverage, and he sued his uninsured motorist insurance carrier for damages beyond the policy limits of the remaining defendant's insurance. The uninsured motorist insurance carrier refused, asserting that the husband had collected more than the $100,000 uninsured motorist policy limit from the other defendants who had settled with the husband previously. The trial court granted summary judgment to the insurer. On appeal, we affirm, finding that, under Tennessee Code Annotated § 56-7-1201(d), the uninsured motorist insurance carrier is entitled to offset the amounts collected from the defendants who had previously settled.

Vann Stiffler vs. Kroger Co. - W2000-02200-COA-R3-CV View
Shelby County - This is a premise liability action arising from an incident wherein Mrs. Stiffler was struck in the back by shopping carts, knocked to the floor, and sustained injuries as a result of the fall. At trial, the jury awarded Mrs. Stiffler $75,000 and awarded $5,000 to Mr. Stiffler on his loss of consortium claim. Kroger filed a motion to set aside the verdict, for a new trial, or, alternatively, for remittitur. The trial court denied Kroger's motion, and this appeal ensued. We affirm.

William Roberts vs. L. Land Bicknell - W2000-02514-COA-R3-CV View
Madison County - In this medical malpractice case, patient and wife sued physicians and their professional association for damages resulting from defendants' negligence, deviation from applicable standard of care, and lack of informed consent. The trial court granted defendants a partial summary judgment for all claims concerning incidents that occurred more than one year prior to the date suit was filed, as barred by the statute of limitations. Subsequently, the trial court granted summary judgment on the merits as to all remaining claims. Plaintiff appeals. We affirm.

Duncan Ragsdale vs. City of Memphis - W2001-01652-COA-R3-CV View
Shelby County - Two taxpayers sued the county, city, and a professional basketball franchise seeking a declaratory judgment that the actions of the city and county to procure and provide financing for a new arena and the agreements made in connection therewith, all in an effort to relocate the franchise to Memphis, violates art. II, § 29 of the Tennessee Constitution because it constitutes a giving or lending of credit of the city and county to a private entity and that the proposed expenditures are not for a public purpose. Defendants filed a motion, pursuant to Tenn.R.Civ.P. 12.02 (6), to dismiss the complaint for failure to state a claim or cause of action upon which relief can be granted and also contested standing of the plaintiffs to maintain the action. The trial court denied the motion to dismiss and declared that the expenditures financed by the city and county were not for a public purpose and that the expenditures were in violation of art. II, § 29 of the Tennessee Constitution requiring a referendum election. The trial court enjoined defendants from proceeding further with the plans and agreements for the relocation and the proposed furnishing of expenditures in connection therewith. Defendants have appealed. We affirm in part, reverse and remand.

Parks Properties, et al vs. Maury County, et al - M1997-00235-COA-R3-CV View
Maury County - This appeal involves a dispute between Maury County and the developers of a commercial warehouse project. The developers purchased two large metal warehouses based on their understanding that the Director of Community Development and the Maury County Regional Planning Commission had effectively agreed to waive the Southern Standard Building Code's requirement that buildings have automatic sprinkler systems. After the Director of Community Development declined to issue a building permit because the plans did not include a sprinkler system, the developers filed suit in the Circuit Court for Maury County seeking to compel the county to issue a building permit and to recover damages under 42 U.S.C. § 1983 (1994). Following a bench trial, the trial court concluded that Maury County and its Director of Community Development had violated the developers' substantive due process rights and awarded them $445,152.55 in damages and $2,772.80 in discretionary costs. On this appeal, Maury County and its Director of Community Development assert that the trial court erred by concluding (1) that they had violated the developers' substantive due process rights, (2) that the director was not entitled to qualified immunity, and (3) that their actions proximately caused the developers' claimed damages. We have determined that the trial court erred as a matter of law when it concluded that Maury County and its Director of Community Development violated the developers' property interests protectable by substantive due process. Accordingly, we reverse the judgment and remand the case to the trial court with directions that it be dismissed.

Kenneth L. Bonner vs. TN Dept. of Correction - M1999-00343-COA-R3-CV View
Davidson County - The petitioner contends that the trial court erred in dismissing his petition regarding the Department of Correction's calculation of his release eligibility date. An adjustment of the release eligibility date, made subsequent to the filing of this appeal, has rendered most of the petitioner's arguments moot. As to the remaining issue, we affirm the dismissal of the petition because we agree with the trial court that it lacked jurisdiction to consider the petition.

The University of Tennessee of Chattanooga vs. Karen Farrow and Harriet White, Consolidated with Sarah Sharp vs. The University of Tennessee and Joyce Merryman vs. The University of Tennessee - E2000-02386-COA-R9-CV View
Knox and Hamilton Counties - Rule 9, T.R.A.P. Appeals granted on the issue of whether the parties are entitled to a jury in claims brought under the Tennessee Human Rights Act, Tennessee Code Annotated §4-21-101 et seq. We hold the parties have the right to a jury trial. Tenn. R. App. R.9 Appeals; Judgments of the Chancery Court of Knox County are reversed, and the Judgment of the Chancery Court of Hamilton County is affirmed.

Linda Green, M.D. and Steve Ferguson, M.D. vs. United Services Automobile Association and Principal Mutual Life Insurance Company - E2000-02713-COA-R3-CV View
Knox County - Linda Green, M.D., and Steve Ferguson, M.D. ("Plaintiffs"), who are married, filed a Complaint for Declaratory Judgment ("Complaint") against their automobile insurance carrier, United States Automobile Association, or USAA, regarding a dispute over the terms of their insurance policy ("Policy"). Plaintiff Green claimed coverage under their Policy's uninsured/underinsured motorist liability section for her physical injuries, medical expenses, and loss of income resulting from an automobile accident. Plaintiff Ferguson claimed coverage for loss of consortium. Defendant contends that the Policy limits Plaintiff Ferguson's loss of consortium claim to the $300,000 each person coverage already extended to Plaintiff Green. After Plaintiffs filed suit disputing this interpretation of the Policy, Defendant filed a Motion for Summary Judgment which was granted by the trial court. Plaintiffs appeal. We affirm.

Allan Russell Burke vs. Maureen Jo Burke - M2000-0111-COA-R3-CV View
Order to Amend
Williamson County - This is a divorce and custody case. Following a bench trial conducted on November 9, 1999, the trial court took the parties' issues under advisement. On December 17, 1999, by Order of Divorce and Custody, the trial court granted a divorce to Ms. Burke based upon inappropriate marital conduct. The trial court further ordered the parents to have split custody of their two minor children with Mr. Burke designated as the primary residential custodian. Ms. Burke was awarded $1,367 in child support and $1,200 in rehabilitative alimony per month for three years. The trial court awarded Ms. Burke $10,000 attorney's fees as alimony in solido. Further the trial court ordered both parents to install an internet-based communication system in each home. In addition, the trial court found the entire equity in the Burke's residence was marital property. Ms. Burke appealed the Order of the trial court arguing that the trial court's order of split custody should not stand. Ms. Burke also contends that the trial court erred in ordering Mr. Burke to install the internet-based communication system on her computer and whether the trial court abused its discretion in failing to award her attorney's fees in the amount requested. By separate issue, Mr. Burke challenges the split custody determination. He also argues that the division of the marital property should be modified and the award of rehabilitative alimony and attorney's fees should be reversed.

Floyd Campbell vs. Corrections Corp. of America - M1999-01082-COA-R3-CV View
Wayne County - This is an appeal by an inmate in a prison operated by Corrections Corporation of America (CCA). His claim stems from the monetary loss he received as a result, he alleges, of CCA employee(s) adding an unauthorized name and number to Mr. Campbell's call list which resulted in unauthorized charges. The court below dismissed Mr. Campbell's complaint on the grounds that the complaint did not allege a cause of action against CCA. We disagree. Mr. Campbell did sufficiently allege a cause of action against CCA for the negligence of its employee(s) in violating prison policies and adding an eleventh name and number to his call list without his permission or authorization. Further, CCA may be held vicariously liable for the negligent acts of its employees and, therefore, is a proper defendant.

Rocky Lee Coker vs. TN Dept. of Correction - M1999-02268-COA-R3-CV View
Davidson County - An inmate in the custody of the Tennessee Department of Correction filed a petition for a declaratory judgment, claiming that his sentence reduction credits had been improperly calculated and that his "safety valve" release date had been wrongly cancelled. The trial court granted the state's motion for summary judgment and the petitioner appeals. We affirm.

Marion Co. Bd. of Education vs. Marion Co. Education Assoc. - M1999-00213-COA-R3-CV View
Marion County - This is an appeal from a declaratory judgment action on behalf of the Marion County School Board seeking a determination as to whether or not the decision by the director of schools to transfer a principal to a teaching position was subject to binding arbitration under a collective bargaining agreement in effect between the school board and the Marion County Education Association. A cross-claim was filed by the Association requesting an injunction to force the Board to arbitration, and both parties filed motions for summary judgment. The trial court granted the Association's motion for summary judgment and mandated the Board to go to final and binding arbitration under the agreement. We reverse the decision of the trial court and hold that the statutory authority of the director of schools to hire and select principals may not be limited by a collective bargaining agreement and that such an agreement cannot authorize an arbitrator to determine who will be principal at a particular school.

Janice F. Roberts vs. Stevie D. Davis, et al - M2000-01974-COA-R3-CV View
Davidson County - On May 17, 1995, Plaintiff Janice Roberts and her husband Max Nichols were involved in an automobile accident with the Defendant Food Lion, Inc. and their driver Stevie D. Davis. The accident occurred on Interstate 24. Plaintiff Roberts sued the Defendants in the Circuit Court of Davidson County seeking a recovery of $270,000 for injuries and various amounts of damages she sustained as a result of the accident. A bench trial was held on May 1, 2000. On May 4, 2000 the trial court by Memorandum and Order found that Plaintiff Roberts was entitled to recover $25,000 for reasonable and necessary medical expenses, pain and suffering and loss of enjoyment of life, and for some diminution in earning capacity. On June 2, 2000, Plaintiff Roberts filed a motion for new trial, which was subsequently denied by the trial court on July 7, 2000. This appeal followed. Plaintiff Roberts insists that the trial court erred in not granting a motion for continuance; not allowing the deposition testimony of a witness; in its award of damages; and by not allocating monies for future medical expenses.

Clear Fork Mining Company vs. Willie Marlow, et al & Willie Marlow, et al vs. Carl Kinkg, et al - E2000-01196-COA-R3-CV View
Campbell County - In the case presently on appeal Willie Marlow, et al., seek a court determination that he is the owner of certain real estate located in Campbell County. The trial court, on motion of Jim King, found the parties had reached an agreement as to the controversy in accordance with his insistence. The trial court thereupon entered a judgment in favor of Mr. King. Mr. Marlow appeals contending enforcement of the agreement violates the Statute of Frauds and such a resolution was barred by the six-year Statute of Limitations. We affirm

Jerome Felix Havely vs. Almeda Matthews Havely - E2000-02275-COA-R3-CV View
Hamblen County - In 1983, Jerome Felix Havely and Almeda Matthews Havely were divorced. They had entered into a Property Settlement Agreement which was incorporated into the Judgment of Divorce ("Divorce Judgment"). Neither the Divorce Judgment nor the Property Settlement Agreement mentioned the military pension of Jerome Felix Havely ("Plaintiff"). Approximately one month after the entry of the Divorce Judgment, Almeda Matthews Havely ("Defendant") filed a motion essentially seeking relief under Tenn. R. Civ. P. 60.02 in which she alleged that the Divorce Judgment should be set aside because she had not been aware of her entitlement to Plaintiff's military pension. This motion was dismissed in 1984 by the trial court for failure to prosecute. This matter lay dormant for fourteen plus years until Defendant filed two more Rule 60.02 motions. Defendant's third and final Rule 60.02 motion, filed in 1999, is the subject of this appeal. After three notices of hearing were filed, the trial court dismissed Defendant's motion without providing its reasons for the dismissal. Defendant appeals. We affirm.

Henry Witt, et ux vs. Tennessee Farmers Mutual Insurance - E2001-00401-COA-R3-CV View
Bradley County - The trial court refused to grant plaintiffs relief from a judgment pursuant to Tenn. R. Civ. P. 59 or 60. Defendant has appealed. We affirm the trial court.

In Re: C.M. b/n/f Dorian MCDaniel vs. Rick Phillips - E2001-00211-COA-R3-CV View
Knox County - The trial court subjected defendant to a protective order pursuant to Tenn. Code Ann. §36-3-601 et seq. Defendant claimed a portion of the statute was unconstitutional, the Court lacked subject matter jurisdiction, and the evidence did not establish a basis to issue the Order. On appeal, we affirm.

Cliffer Saulsberry vs. Labcorp - W2000-02826-COA-R3-CV View
Shelby County - Plaintiff truck driver was required to submit to a random urine drug test pursuant to his employer's drug policy and mandatory Department of Transportation (DOT) guidelines. After the specimen tested positive for the presence of cocaine metabolites, plaintiff was discharged from his employment. Plaintiff sued the laboratory that conducted the test, alleging negligence in the testing procedure that resulted in a false report. The trial court granted the laboratory summary judgment, and plaintiff appeals. We reverse.

Betty Vestal vs. Thomas Lawler - W2001-00013-COA-R3-CV View
Gibson County - Buyer, under warranty deed, sued seller for breach of warranty against encumbrances after receiving notice of trustee's sale pursuant to deed of trust encumbering the property. Seller answered the complaint and filed a third party complaint against the lawyer he retained to perform a title search, which search failed to show the deed of trust. The third party defendant filed a counter complaint against the seller. The trial court granted the buyer judgment on the pleadings against seller, dismissed seller's third party complaint, and granted third party defendant summary judgment against seller. Seller appeals. We reverse in part and modify in part.

Patsy Oakley vs. James Oakley - W2000-02033-COA-R3-CV View
Shelby County - This appeal arises from a divorce action. Husband and Wife divorced after 22 years of marriage. Both had received property by bequest during the marriage. Husband had received stocks and securities, real property, and Company, which he owned and operated. Wife received property which she subsequently sold. The proceeds of these sales were deposited in a separate investment account after first passing through a marital checking account and were later used to buy Condo. The trial court specifically found that Wife had not substantially contributed to appreciation of stocks and securities, but awarded her 25% of their appreciation. The appreciation of Husband's real property was found to be marital property, as well as the entire value of Company. Wife's Condo was found to be separate property. We affirm in part, reverse in part, modify and remand.

Susan Wilson vs. Rushton Patterson - W2000-02771-COA-R3-CV View
Shelby County - This is a medical malpractice case. Plaintiffs, husband and wife, sued defendant physician for injuries allegedly caused to wife by the physician's negligence. Physician moved for summary judgment supported by his affidavit that he conformed to the required standard of care. Plaintiffs, in opposition to the summary judgment, filed a deposition and affidavit of a physician practicing in Kentucky that expressed his knowledge of the standard of care in Memphis and similar communities. Physician moved to strike the affidavit primarily on the ground that plaintiffs' physician expert did not show a familiarity with the standard of care in Memphis, Tennessee. The court granted the motion to strike the affidavit and also granted summary judgment to defendant physician. Plaintiffs appeal. We reverse and remand.

Kevin Sanders, et al vs. Lincoln County, et al - M2000-01386-COA-R3-CV View
Lincoln County - This case questions the defendants' decision to remove Gill Road and Endsley Road from the county road list, thereby exempting landowners on these roads from the stock gap removal policy of the county affecting public roads. Plaintiff claims such action violates constitutional equal protection rights. The jury returned a verdict in favor of the defendants. The plaintiffs assert that the jury's verdict is contrary to the weight of the evidence and that the trial court erred by submitting an incomplete and misleading verdict form to the jury. The trial court approved the jury verdict for the defendant and we affirm.

Raymond G. Prince, P.C. vs. Manfred Polk - M2000-01859-COA-R3-CV View
Davidson County - This matter originated from a default judgment granted in general sessions court against Appellant/Defendant, Manfred Polk, for payment of attorney's fees. Appellant filed a Rule 60.02 Motion to Vacate the default judgment, which was denied; an appeal to the circuit court, which was dismissed for failure to set; followed by a Motion to Reinstate and Motion to Set, which were denied. Defendant now appeals the denial of the Motion to Reinstate and Motion to Set claiming a violation of due process and abuse of discretion on the part of the circuit court. We affirm the circuit court's dismissal of these motions.

Joseph Turley vs. Francis P. Marino, et al - M2000-01684-COA-R3-CD View
Davidson County - Appellant, Joseph Turley, was charged with two counts of criminal contempt by the trial court in an order issued May 3, 2000. The trial court appointed a special prosecutor to pursue this matter and appointed the public defender to represent the appellant. The trial on June 15, 2000 resulted in a trial court finding of guilty, after which the appellant was sentenced to 48 hours in jail. Turley appeals, and we affirm the judgment of the trial court.

Kimberly J. Svacha, et al vs. Waldens Creek Saddley Club, et al - E2000-03121-COA-R3-CV View
Sevier County - The trial court granted defendants' motion for summary judgment relying, at least in part, on oral testimony from one of the plaintiffs. This testimony was not transcribed, filed with the trial court, and provided to this court as part of the record on appeal. Due to the somewhat peculiar procedural aspects of this case, we conclude that defendants had the responsibility to file a transcript of this testimony. Because we cannot evaluate the propriety of the grant of summary judgment without having before us this evidence relied on by the trial court, we vacate the grant of summary judgment.

J. Howard Gregg vs. Jack Johnson - E2000-02685-COA-R3-CV View
Bradley County - J. Howard Gregg ("Plaintiff"), sued his former business partner, Jack Johnson ("Defendant"), essentially alleging that Defendant breached an agreement to pay a debt originally incurred by their former partnership, Jack Johnson Motors. Plaintiff also alleged that Defendant owed him money as part of their partnership ("Partnership") dissolution agreement. Neither the Partnership agreement nor the dissolution agreement was written. Defendant raises as defenses the statute of limitations and the statute of frauds. The trial court held in favor of Plaintiff. Defendant appeals. We affirm.

Mack Brown vs. Dwight W. Ogle, et al - E1999-02513-COA-R3-CV View
Knox County - This is a suit wherein the plaintiff seeks damages by reason of the defendants conspiring to deprive him of his rightful share in assets of a corporation, Toni Motel, Inc. The suit was filed on September 16, 1983, as a share holder's derivative suit and was ultimately dismissed by the trial court under the doctrine of laches on the part of the plaintiff. The order of dismissal was entered on January 14, 1999, nunc pro tunc as of December 14, 1998. The plaintiff appeals contending laches does not apply, particularly since the suit was timely filed. We find the trial court's action was appropriate and affirm the judgment entered.

Richard D. Thompson vs. Herbert G. Adcox - E2000-01843-COA-R3-CV View
Hamilton County - This is an action to collect on a check. The plaintiff's suit was brought pursuant to T.C.A.§ 47-29-101 (Supp. 2000), a statute dealing with dishonored checks and drafts. William Aubrey Thompson ("the elder Thompson") and his adult son, Richard D. Thompson ("the plaintiff") (collectively referred to as "the Thompsons"), agreed to loan Darlene Lane-Detman $60,000. The Thompsons agreed to make the loan but only upon the condition that the defendant, Herbert G. Adcox, would guarantee repayment by delivering to the plaintiff a personal check in the amount of $60,000, post-dated to the due date of Lane-Detman's obligation. Adcox agreed and subsequently delivered a post-dated check for $60,000 payable to the plaintiff. After Lane-Detman failed to repay the loan when due, Adcox stopped payment on his post-dated check. The plaintiff responded by suing Adcox. Following a bench trial, the court below awarded the plaintiff a judgment against Adcox for $90,378.97. Adcox appeals, arguing that the trial court erred (1) in holding that Adcox's "post-dated check" is a "check" as that term is used in T.C.A. § 47-29-101 and in "borrowing" the concept of an inference of fraudulent intent from the criminal worthless check statute; (2) in denying his motion to dismiss at the close of the plaintiff's proof; (3) in making an award of more than $500 over the face amount of the check in violation of T.C.A. § 47-29-101(d); (4) in excluding Adcox's testimony that Lane-Detman told him to stop payment on his check because the deal was off; and (5) in finding that the evidence preponderates that Adcox acted with fraudulent intent when he stopped payment on his check. We affirm.

William H. Davis vs. Daira F. Davis - E2000-02678-COA-R3-CV View
Cocke County - This appeal from the Cocke County Circuit Court questions whether the trial court erred in dividing the marital estate. Mr. Davis appeals the trial court's valuation of his closely held corporation, the payment of some debt by Mr. Davis, and the award of permanent periodic alimony to Ms. Davis. We affirm the decision of the trial court as modified and remand for such further proceedings, if any, consistent with this opinion. We adjudge costs of the appeal against the Appellant, William H. Davis and his surety.

Roger Ritchie, et al vs. Tommy Pitner, et al - E2000-02689-COA-R3-CV View
Knox County - This lawsuit arises out of a Letter of Intent entered into between two of the various parties to this action. The trial court entered judgment on the issue of which party was entitled to possession of the property, but did not rule on any of the remaining claims. Because the judgment appealed from is not a final judgment for purposes of Rule 3 of the Tenn. R. App. P., we dismiss the appeal.

Rhonda Lyn Vaughan vs. Joseph Clyde Vaughan - M2000-00623-COA-R3-CV View
Williamson County - This is a divorce case in which alimony is in dispute. The trial court awarded alimony in futuro to the wife in the amount of $750 per month until her death or remarriage, and ordered the husband to purchase a $100,000 life insurance policy for the benefit of the wife. The trial court also ordered the husband to pay $1,500 of the wife's attorney's fees. The husband appeals, arguing that alimony in futuro was inappropriate because the wife is self-sufficient with her income as a nanny. In the alternative, the husband argues that rehabilitative alimony is more appropriate. We affirm the judgment of the trial court in all respects.

Olalee Herron McClaran vs. Don M. McClaran - M2000-01666-COA-R3-CV View
Rutherford County - Plaintiff Olalee Herron McClaran sues her son, Defendant Don M. McClaran, seeking compensatory and punitive damages for his mishandling of funds coming into his hands as her attorney in fact in connection with the sale of certain real estate. The jury awarded both compensatory and punitive damages, resulting in this appeal wherein Mr. McClaran complains of the exclusion of evidence, the trial court's directing a verdict as to two claims in his counter-complaint, the seating of a six-person, rather than a 12-person jury, and the excessiveness of the punitive damage award. We affirm.

Martin Herrick, et ux vs. Mike Ford Custom Builders, LLC - M2000-02569-COA-R3-CV View
Williamson County - The Herricks entered into a sales agreement with Mike Ford for the construction of a home. The sales agreement provided that the deposit paid by the Herricks became non-refundable upon the presentation of a loan commitment letter. The Herricks presented Mike Ford with a loan commitment letter from Southeastern Mortgage Company which was conditioned upon proof of employment. Mr. Herrick was terminated from his employment, and, as a result, Southeastern denied the Herricks' loan application. The Herricks demanded Mike Ford return their deposit. Mike Ford refused, contending that the deposit became non-refundable at the time the Southeastern loan commitment letter was presented. Both parties filed motions for summary judgment. The trial court granted summary judgment in favor of the Herricks. We reverse and remand.

Cases posted the week of 08/06/2001
Pearl Lynell Potts, Indiv.and Executor of the Estate of Gordon Ray Potts, Sr., Deceased, vs. Mary Potts Mayforth, et al vs. Alice Elizabeth Nelson - E2000-03116-COA-R3-CV View
Carter County - The Trial Court entered a Default Judgment against Potts pursuant to Tenn. R. Civ. P. 37.02 and then summary judgment for plaintiffs. On appeal by defendants, we affirm the Judgment of the Trial Court.

In Re: Estate of Gloria Eleanor Franklin - E2000-02687-COA-R3-CV View
Cocke County - This is apparently a case of first impression. The appellant, W. Jess Waltman, filed a petition in the trial court seeking to probate a document purporting to be the last will and testament of Gloria Eleanor Franklin ("the decedent"). The will, dated "July 7 93," directs that the appellant and his wife, Terry Waltman, are to receive the decedent's estate "in case I die on my way to & from Jersey." The trial court held that the will was not eligible for probate because it was a conditional will and the specified condition or contingency, i.e., Ms. Franklin's demise "on the way to & from Jersey," had not occurred. We vacate the trial court's judgment and remand for further proceedings consistent with this opinion.

In the matter of R.L.B. - W2001-00367-COA-R3-JV View
Madison County - This case involves the termination of parental rights. The children, four boys, were removed from the custody of their mother and father after reports of domestic violence by the father. While the boys were in the protective custody of the State, allegations surfaced that they had been subjected to sexual abuse by the mother, as well as physical abuse by the father. The trial court terminated the parental rights of mother and father in all four boys, finding willful abandonment and that the conditions leading to removal persisted and were unlikely to abate. On appeal, we affirm, finding that the trial court's decision is supported by clear and convincing evidence.

In re: Estate of Fannie Mae Johnson - W2000-01510-COA-R3-CV View
Shelby County - This appeal arises from the trial court's finding that a bank account was part of Decedent's estate and not the property of Executrix. In 1987, Decedent added Executrix to a bank account. Decedent failed to mark the portion of the card signifying that the account was to have rights of survivorship. After Decedent died, Executrix conducted an accounting in which she did not include the account. Beneficiary contested the accounting arguing that account should be part of the estate. Executrix argued that the addition of her name to the account created a presumption that the account's right of survivorship was a gift inter vivos. The trial court found that no presumption existed and that the account was part of the estate. We affirm.

Thomas Farnsworth vs. Gary Faulkner - W2000-02031-COA-R3-CV View
Shelby County - This appeal arises from the trial court's granting of a motion of summary judgment. The court ruled that Shop had violated an Agreement which incorporated in its entirety a previous lease of certain property. As a result, Owner was awarded the repair costs for certain repairs that Shop had been responsible for under the lease. Owner was also awarded attorney's fees and expenses. Shop appealed, arguing that certain material facts were in dispute and thus summary judgment was inappropriate. We affirm in part and reverse in part.

Alfred Bowling vs. Dobbs Bros. - W2000-01476-COA-R3-CV View
Shelby County - This appeal arises from the trial court's denial of a motion in limine. Employee was fired from his position at Company. At a pre-trial deposition, Manager testified on behalf of Company that Employee was terminated due to Manager's observation of Employee's lack of sales skills. Employee filed a motion seeking to bar testimony of other Company employees during the trial. These employees were to testify on Employee's lack of sales skills. Employee argued that this testimony would be inconsistent with Company's pre-trial deposition that Employee was terminated due to Manager's observation of his lack of sales skills. We affirm.

Sherri Vaughn vs. Nathan Vaughn - E2000-02281-COA-R3-CV View
Hamilton County - In this divorce case, the husband has appealed the award of alimony, child visitation and support, and the Court's division of marital property. We affirm.

Raymond Cox vs. Thomas Hicks - E2000-02241-COA-R3-CV View
Anderson County - This dispute between two businessmen involves issues on the nature and extent of a partnership and the interaction and enforcement of a mediation settlement agreement. Plaintiff appeals the limitation placed on the partnership agreement and enforcement of the mediation agreement by the Trial Court. We affirm.

Lisa Hughes, et vir vs. Wilma Effler, et al - E2000-03147-COA-R3-CV View
Blount County - Plaintiffs alleged that defendant appraiser's negligence in making an appraisal resulted in their damage. The Trial Court granted defendant summary judgment. Plaintiffs appeal the refusal of the Trial Judge to grant them additional time to defend the summary judgment motion. We affirm.

Cases posted the week of 07/30/2001
International Deli/Caterers vs. Raymond/Kimberly Shields - W2000-00269-COA-R3-CV View
Shelby County - This is a contract case. The defendants entered into a franchise agreement with the plaintiff to own and operate a franchise. After the defendants failed to make royalty payments for two months and then failed to make a note payment, the plaintiff filed suit alleging breach of contract. The defendants counter-claimed, alleging that the plaintiff breached the contract first by not operating a marketing fund mentioned in the franchise agreement and by not furnishing a sign provided for in the purchase agreement. At trial, the trial court allowed testimony by the plaintiff as to discussions, prior and subsequent to the signing of the agreements, in which he claimed that the parties had agreed upon different terms regarding the marketing fund and sign. The trial court found that the plaintiff had not breached the agreements by not maintaining the marketing fund or furnishing the sign, and that even if it were a breach, it was not a material breach. The defendants now appeal. We affirm.

Daniel Taylor vs. State - W2000-01467-COA-MR3-CV View
This is an appeal from the Tennessee Claims Commission. The plaintiff, a prisoner, filed a claim against the State under Tennessee Code Annotated § 9-8-307(a)(1)(N) (Supp. 2000) for negligent deprivation of his statutory rights. The Claims Commission dismissed for lack of subject matter jurisdiction. On appeal, we affirm.

Billy Conatser, et al vs. L.D. (Joe) Ball - M1999-00583-COA-R3-CV