Court of Appeals Opinions - 3 ^rd Quarter 2007

This Page Last Updated: November 28, 2007 at 10:19.54 hours

The following Opinions are available for download:

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Cases posted the week of 09/24/2007
Sendie Stanfill, Rheba Kershaw and Courtney Stanfill v. Jeffery Hardney, et al. - M2004-02768-COA-R3-CV View
Davidson County - This appeal involves a scheme to trick an elderly property owner into parting with her property without consideration. The property owner and two members of her family filed suit in the Chancery Court for Davidson County against four persons and one corporation, alleging that they had engaged in a civil conspiracy to obtain her property without adequate consideration and then to profit from the property by selling it at an inflated price and splitting the proceeds. Two of the four individual defendants filed bankruptcy petitions while the case was pending, and the claims against the remaining two individual defendants and the defendant corporation proceeded to a bench trial. The trial court determined that all defendants had been part of a civil conspiracy to defraud the property owner in violation of the Tennessee Consumer Protection Act and determined that the property owner’s actual damages were $67,500. After the property owner elected to receive treble damages, the trial court entered a judgment against the defendants for $201,000.00 in damages, $92,853.00 in attorney’s fees, and $7,173.40 in costs. The defendants assert on this appeal that the case became moot as a result of a pre-trial order and that the evidence preponderates against the trial court’s finding that they were part of a civil conspiracy to defraud the property owner. We have determined that the case is not moot and that the evidence supports the trial court’s finding that the defendants were part of a civil conspiracy to induce the property owner to part with her property without consideration.

Tennessee Environmental Council, Inc. v. Water Quality Control Board and Cumberland Yacht Harbor, Inc. - M2005-02425-COA-R3-CV View
Davidson County - The sole issue on appeal is whether a non-attorney’s attempt to participate in a contested case hearing before the Water Quality Control Board as the representative of a corporation is permitted pursuant to Tenn. Code Ann. § 4-5-305(a), which expressly provides that a corporation may participate in the hearing by a duly authorized representative, or prohibited as constituting the unauthorized practice of law. Notwithstanding the fact that the statute provides that a duly authorized representative of a corporation may “participate” as the representative of the corporation in a hearing, we have determined that a non-attorney may not participate as the representative of a corporation if doing so requires the non-attorney to exercise the professional judgment of an attorney.

Kelly Muncey and Ronnie Muncey v. Lisa Ann Phillips and HTI Memorial Hospital/Skyline Medical Center - M2006-01763-COA-R3-CV View
Davidson County - Plaintiffs appeal the trial court’s denial of their motion to alter or amend. After the trial court granted the defendant doctor summary judgment in this medical malpractice action, plaintiffs attempted to offer countervailing medical proof. Finding the trial court did not abuse its discretion, we affirm.

Colonial Pipeline Company, A Delaware Corporation v. Nashville & Eastern Railroad Corporation, A Tennessee Corporation - M2006-01727-COA-R3-CV View
Davidson County - This appeal arises from a contract dispute between a railroad and pipeline company over pipeline relocation costs. The parties entered into a license agreement allowing the pipeline company to install, operate, and maintain its pipeline under real property owned by the railroad. The railroad constructed new, mainline track that necessitated the pipeline’s relocation. In a breach of contract action filed by the pipeline company to recover its relocation costs, the trial court granted summary judgment for the railroad, ruling that the contract did not restrict the railroad from installing the new track as it did. Finding that the license agreement prohibited the railroad from constructing new track both over and along existing pipeline, we affirm in part, reverse in part, and remand for an award of damages and entry of judgment in favor of the pipeline company.

Betty Jean Webb v. David Fred Lane - M2007-00193-COA-R3-CV View
Rutherford County - Plaintiff appeals from a judgment rendered in her favor contending that the award was insufficient to compensate her for her injuries. In the absence of a transcript or sufficient statement of the evidence, we affirm.

Larry Budd v. Renee Barrington - M2006-01428-COA-R3-CV View
Sumner County - Larry Budd (“Budd”), while incarcerated by the State of Tennessee in Clifton, Tennessee, filed this lawsuit against Renee Barrington (“Barrington”) in June of 2005. Almost one year later, the Trial Court entered an order informing the parties that a hearing would be held on whether the case should be dismissed for failure to prosecute because absolutely no action had been taken to prosecute the case after it was filed. When no response to the order was received and no one appeared at the hearing via telephone or otherwise, the Trial Court dismissed the case. Budd appeals the dismissal and, finding no abuse of discretion, we affirm.

Jean Louise Miller v. State of TN Board of Nursing - M2005-02383-COA-R3-CV View
Davidson County - This appeal involves a disciplinary proceeding against a registered nurse. After receiving a report that a registered nurse left her patients in a hospital’s medical/surgical unit before the end of her shift, the Tennessee Board of Nursing commenced a contested case proceeding to discipline the nurse. Following the hearing, the Board ordered the nurse to pay a $1,000 civil penalty and also immediately suspended the nurse’s license pending a psychological evaluation. The nurse sought judicial review of the Board’s decision by the Chancery Court for Davidson County, and the trial court affirmed the Board’s finding that the nurse had abandoned her patients, the assessment of the civil penalty, and the immediate suspension of the nurse’s license. The nurse appealed. We have determined that the record contains substantial and material evidence that the nurse abandoned her patients and that the Board did not act arbitrarily by requiring the nurse to pay a $1,000 civil penalty. However, we have determined that the Board acted arbitrarily when it immediately suspended the nurse’s license pending a psychological examination in the absence of any evidence or finding that the nurse was presently mentally unfit to practice nursing.

Qualcomm Incorporated v. Loren L. Chumley, Commissioner of Revenue, State of Tennessee - M2006-01398-COA-R3-CV View
Davidson County - In this appeal we consider application of Tennessee’s sales and use tax on telecommunications as “telecommunications” was formerly defined. See T.C.A. § 67-6-102(a)(32) (2003). The taxpayer plaintiff-appellee provides a service which allows its customers (commercial trucking companies) to locate and determine the status of individual vehicles as well as communicate with its drivers. The defendant-appellant Commissioner of Revenue determined that this service constituted taxable “telecommunications” during the audit period in question. The taxpayer filed this suit in the Chancery Court for Davidson County seeking a refund. The chancellor below granted the taxpayer’s motion for summary judgment and denied the Commissioner’s cross-motion. The Commissioner appeals this decision. Applying the “true object” test as it has been developed by prior decisions of this Court rendered in the context of telecommunications taxation, we agree with the court below that telecommunication was not the true object or primary purpose of the service at issue. Accordingly, we affirm.

Monteagle Sunday School Assembly v. F.H. Rhoads, Vera J. Rhoads, Cecil J. Meeks and Lucille Meeks - M2006-01707-COA-R3-CV View
Grundy County - This is an appeal by Defendants from a final judgment establishing the common boundary line between the properties of Plaintiff and Defendants. The issue on appeal arises out of the determination of the trial court during trial that Plaintiff’s action was a boundary dispute and not, as Defendants argued, an action for ejectment. On appeal, Defendants contend that Plaintiff’s complaint was an ejectment action and the court erred in relieving Plaintiff from the burden of proving a perfect deraignment of title. We affirm.

Evelyn Jones vs. Angela Anderson, in her official Capacity as Clerk & Master of Morgan County - E2007-00199-COA-R3-CV View
Morgan County - Evelyn Jones sued Angela Anderson, in the latter’s capacity as Clerk & Master of Morgan County (“the Clerk & Master”). The plaintiff sought a writ of mandamus or, alternatively, “a declaration as to the rights . . . [the plaintiff] acquired by her act of redemption” with respect to a piece of property titled to the plaintiff’s uncle, Julian Jones. Mr. Jones was deceased when the subject property was sold at a tax sale. Based upon the pleadings and stipulated facts, the trial court dismissed the complaint. The plaintiff appeals, arguing that she is entitled to a writ of mandamus ordering the Clerk & Master to make a deed conveying to her the fee simple interest in the subject property. We affirm.

Brance E. Myers, III vs. Roberta Jill Myers - E2007-00621-COA-R3-CV View
Cumberland County - Brance E. Myers, III (“Father”) filed a Petition to Modify Parenting Plan alleging a material change in circumstances and seeking to modify the parenting plan entered into when Father and Roberta Jill Myers (“Mother”) divorced three years earlier. The case was heard by Judge Steven C. Douglas who entered an order on March 17, 2006, finding and holding, inter alia, that there was a material change in circumstances sufficient to require a modification. Mother filed a motion to alter or amend the judgment. Judge Douglas was defeated in the August election and never ruled on Mother’s motion to alter or amend the judgment. The new judge, Judge Larry M. Warner, heard argument on the motion to alter or amend and granted a new trial. After the new trial, Judge Warner entered an order on March 6, 2007, finding and holding, inter alia, that there was no material change in circumstances that would warrant a modification of the parenting plan. Father appeals to this Court raising issues regarding the grant of a new trial and the finding of no material change in circumstances. We reverse the grant of a new trial, vacate the March 6, 2007 order, and reinstate the March 17, 2006 order.

Brian L. VanBebber vs. Jon Roach, et al - E2006-02062-COA-R3-CV View
Union County - This case involves a personal injury claim arising out of a two-vehicle collision. The dispute on appeal is between the injured plaintiff, Brian L. VanBebber, and Tennessee Farmers Mutual Insurance Company. Their disagreement pertains to whether the plaintiff is covered under the uninsured motorist provisions of his mother’s policy with Tennessee Farmers. This issue was tried to a jury. The plaintiff contends that he was a resident of his mother’s household at the time of the accident. The trial court held that the policy language – “resident of your household” – is ambiguous. As a consequence of this ruling, the court instructed the jury that it should liberally construe this phrase “in favor of [the plaintiff] . . . and against [Tennessee Farmers].” The jury returned a verdict in favor of the plaintiff. We hold that the trial court committed error when it characterized the subject provision as ambiguous and that it further erred when it thereafter charged the jury that it should construe this language liberally in favor of the plaintiff and against Tennessee Farmers. Because we hold that these errors more probably than not affected the judgment in this case, we vacate that judgment and remand for a new trial.

Anna C. Burden vs. Harry Donald Burden - E2006-01466-COA-R3-CV View
Campbell County - In this divorce case, Anna C. Burden (“Wife”) challenges the trial court’s award of joint custody and its adoption of the Permanent Parenting Plan submitted by Harry Donald Burden (“Husband”), which plan provides for equal parenting time with regard to the parties’ child, Anna Veatta “Vee” Burden (“Child”). Wife contends that she should be the primary residential parent, with Husband having visitation rights. Wife also challenges the court’s division of the marital property and its denial of alimony. We reverse as to custody, affirm as to the division of property, and vacate the judgment as to alimony. This case is remanded for further proceedings on the issue of alimony.

Heather McBride v. Sherry Nebel Webb - M2006-01631-COA-R3-CV View
Robertson County - In this action, plaintiff obtained a Default Judgment. Defendant moved to set aside the Judgment. The Trial Court refused, and we affirm.

Rollins Market, Inc. d/b/a Rollins Market v. Metropolitan Beer Permit Board - M2006-00516-COA-R3-CV View
Davidson County - The Davidson County Metropolitan Beer Board appeals the decision of the Circuit Court, which reversed the Board’s revocation of a beer permit. The Board had revoked the beer permit issued to Rollins Market, Inc., based upon a finding the market had received four citations for unlawfully selling beer to minors. The corporation contended it only had one violation and that the previous citations the Board relied upon to revoke its permit were issued to a prior owner of the market, not the corporation. The record shows that the corporation was required by Board policies to obtain a new beer permit when it acquired the market and that only one citation had been issued subsequent to the corporation receiving its beer permit. Thus, the evidence does not preponderate against the trial court’s finding that the citation at issue constituted the corporation’s first violation for selling beer to minors. We therefore affirm the decision of the trial court.

In Re: J. W. L. and J. R. G. - M2007-00167-COA-R3-PT View
Lawrence County - Mother appeals the termination of her parental rights to her two children, J.W.L. and J.R.G. The trial court terminated Mother’s parental rights on the grounds of mental incompetence and failure to remedy persistent conditions. The court also found that the termination of Mother’s parental rights was in the children’s best interest. We affirm the trial court’s termination of parental rights based upon Mother’s failure to remedy persistent conditions.

Milan Box Corporation v. Donna Hardy, et al. - W2006-02478-COA-R3-CV View
Gibson County - Plaintiff Milan Box filed this lawsuit against former employee Donna Hardy and her husband, Billy Hardy, alleging fraud, embezzlement, conversion, and unjust enrichment. During discovery the Hardys submitted responses to written interrogatories, but subsequently asserted their fifth amendment rights against self-incrimination during deposition and moved the court to stay litigation pending criminal proceedings. The Hardys subsequently withdrew the motion to stay; nevertheless, the trial court denied the motion to stay when the Hardys failed to execute deeds of trust to real property in favor of Milan Box as security. The trial court granted Milan Box’s motion for summary judgment, and the Hardys appeal. We affirm summary judgment against Donna Hardy but modify the award of damages, reverse the award of summary judgment against Mr. Hardy, and remand for further proceedings.

Willie L. Hill vs. Margie L. Simpson - E2005-02401-COA-R3-CV View
Knox County - In this action for damages for injuries sustained in a motor vehicle accident, the Trial Judge approved a jury verdict for the defendant. Plaintiff appealed on grounds of jury misconduct. We affirm.

In Re: Victoria Bowling - E2007-00262-COA-R3-JV View
Anderson County - Defendant was cited for criminal contempt by Judge. Another Judge found defendant guilty of contempt. We affirm.

William Bishop Land v. Carolyn Suzanne Land - M2006-01268-COA-R3-CV View
Grundy County - William Bishop Land (“Husband”) sued Carolyn Suzanne Land (“Wife”) for divorce. The Trial Court entered a Final Decree of Divorce, inter alia, awarding the parties a divorce and finding and holding that it was in the best interests of the parties’ minor child (“the Child”) for Husband to be the primary residential parent. Wife appeals to this Court claiming that the Trial Court erred in awarding primary residential custody of the Child to Husband. Wife also argues that the Trial Court further erred by considering a report filed by the guardian ad litem and by refusing to consider post-trial facts. We affirm.

Jason M .Crippen vs. Catharyn Campbell - E2007-00309-COA-R3-CV View
Knox County - When the parties’ planned marriage did not materialize, Jason M. Crippen (“the Donor”), sued his former fiancee, Catharyn Campbell (“the Donee”), seeking the return of the engagement ring. The trial court held that the passing of the ring was a completed gift upon the transfer of the ring to the Donee. The court granted the Donee summary judgment. The Donor appeals. We reverse and grant the Donor summary judgment on his complaint for return of the ring.

Deborah Ann White v. Dewey Wayne White - M2006-01233-COA-R3-CV View
Lawrence County - This is an appeal from a judgment that was not final. This Court ordered that a final judgment be entered with a copy filed in the record before us, which the appellant has failed to do. Accordingly, the appeal is dismissed.

Quintin G. MacDonald and Courtney L. MacDonald v. Bill Gunther, d/b/a BJK Property Inspections - M2006-00927-COA-R3-CV View
Davidson County - The plaintiff homeowners contended that the defendant licensed property inspector had performed a negligent or fraudulent home inspection on the house they subsequently purchased, and that as a result, they incurred many unanticipated expenses for repairs. The parties agreed to resolve their dispute through binding arbitration, which resulted in an arbitration award of nearly $100,000 for the homeowners. The trial court granted the plaintiffs’ motion to confirm the award. The defendant argues on appeal that the court should have dismissed the plaintiffs’ motion to confirm because of their failure to comply with the court’s scheduling order. We affirm the trial court.

Jason Digregorio v. C. Gary Jackson, M.D. and The Otology Group - M2006-01547-COA-R3-CV View
Davidson County - The defendant otologist performed surgery on the right ear of a man who suffered from a congenital condition. The patient claimed that for more than nine years after the surgery he suffered from chronic infections and a foul-smelling discharge from that ear. Another otologist finally revised the earlier surgery and discovered a small piece of sponge-like material in the patient’s mastoid cavity, which the patient alleged had caused his infections and had been left there by the defendant almost ten years earlier. The defendant filed a motion for summary judgment, contending that the patient’s complaint was time-barred because of the passing of the one-year statute of limitations and the three-year statute of repose for medical malpractice. The trial court granted the motion. The plaintiff argues on appeal that the trial court erred because it failed to properly consider Tenn. Code Ann. § 29-26-116(a)(4) of the medical malpractice act, which sets out a separate statute of limitations “in cases where a foreign object has been negligently left in a patient’s body . . . .” We affirm the trial court’s judgment.

Dot Vaughn and Janelle Lee, Next of Kin for the deceased Muriel Powers Davis v. John W. Harton Regional Medical Center - M2006-01326-COA-R3-CV View
Coffee County - Muriel Powers Davis was hospitalized in the John W. Harton Regional Medical Center for pneumonia. During the admission process, it was noted she had recently fallen and had difficulty ambulating without assistance. As a result, fall precautions were implemented. Two days later, during the evening hours, she was discovered lying in the floor. An X-ray revealed a fractured femur. The fracture was surgically repaired, but Ms. Davis died some twenty days after her fall. Her next of kin instituted a medical malpractice action against the hospital alleging that Ms. Davis's fall was the result of negligent care provided by the hospital. The hospital moved for summary judgment which was granted by the trial court. After carefully reviewing the record, we are of the opinion that the affidavit filed by the hospital in support of its motion for summary judgment failed to negate the plaintiffs' right of recovery and so we reverse the judgment of the trial court.

Charles Jones and Mae Jones v. KITE/Cupp Legends Golf Development Co., as owner of Legends Club of Tennessee and Unidentified John Doe Employee - M2006-01988-COA-R3-CV View
Williamson County - In this case, the plaintiff, Charles Jones, stepped onto a wooden bench while playing a round of golf at Vanderbilt Legends Club of Tennessee (Legends), a golf course owned by the defendant, Kite/Cupp Legends Golf Development Co. (Kite). The bench overturned and Mr. Jones fell sustaining significant injuries. Mr. Jones brought a premises liability suit against the golf course alleging that it was negligent by failing to have secured the bench to the concrete slab on which it was sitting or by failing to have warned players it was not so secured. Kite filed a motion for summary judgment which was granted by the trial court. We find there are genuine issues of material fact, and so we reverse.

Cases posted the week of 09/17/2007
In Re: B.J.L. and K.M.L - E2007-00596-COA-R3-PT View
Bledsoe County - This is an appeal from an order terminating the parental rights of N.L. (“Mother”) to her two children, K.M.L. and B.J.L., ages 5 and 6, respectively. Following the trial, the Juvenile Court held that: (1) there was clear and convincing evidence that grounds existed to terminate Mother’s parental rights pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) - (g)(3); (2) there was clear and convincing evidence that termination of Mother’s parental rights was in the children’s best interest; and (3) the Department of Children’s Services (“DCS”) had made reasonable efforts to assist Mother to reunite with her children. Mother appeals challenging most of these rulings. After a careful review of the record, we affirm the Juvenile Court’s judgment in all respects.

State of Tennessee vs. Teresa Murphy, and State of Tennessee, vs. Dwight Bright - E2006-02468-COA-R3-JV View
Monroe County - This is an action by the State to require the defendant to pay to the State previously ordered child support payments. The Trial Court determined that the children were never in the physical custody of the State, but were in the custody of the grandparents and the mother, during the time period the child support payments had been ordered, and that the grandparents had received no child support payments from the State and waived any payments of child support. The Trial Court dismissed the State’s action. On appeal, we affirm.

Daniel E. Long vs. Andrea Elise Miller, et al - E2006-02237-COA-R3-CV View
Anderson County - This is a breach of contract action filed by Daniel E. Long against R & M Builders, Inc. (“R & M”), the successful bidder on a governmental project to demolish and rebuild the plaintiff’s house. The plaintiff claims that R & M performed its services in an unworkmanlike manner and that the company failed to complete several of the contractual requirements. R & M filed a motion to dismiss asserting that the parties had agreed to binding arbitration. The trial court denied the motion and the case proceeded to trial. The jury found that R & M had breached the contract and awarded the plaintiff damages of $15,000. R & M appeals, claiming the trial court erred when it refused to order the parties to arbitration. It also asserts that the trial court erred in excluding certain evidence. The plaintiff argues that this appeal is frivolous. We affirm the judgment of the trial court and conclude that R & M’s appeal is frivolous. We remand this case to the trial court with instructions.

Greg Mabey d/b/a Liberty Realty & Auction v. Nick Maggas a/k/a Nicholaos Maggas and wife, Kathy Maggas - M2006-02689-COA-R3-CV View
Putnam County - This appeal involves a dispute arising out of a real estate listing contract. The contract originally provided that the real estate broker was entitled to a commission if the property sold within a term of one year, from April 15, 2003 to April 15, 2004. In addition, he was entitled to a commission if the property was sold within sixty days of the termination of the contract to someone with whom the owners had been negotiating during the contract term. At some point, the dates of the contract term were modified and initialed by both parties to reflect that the term was to last from April 15, 2003 to October 15, 2004. The parties dispute when this change took place and whether it accurately reflected their agreement. The property owners sold the property within sixty days of October 15, 2004, but refused to pay the real estate broker a commission. The real estate broker filed this action against the property owners to recover his commission and prejudgment interest. A jury returned a verdict in favor of the real estate broker and awarded him 3% prejudgment interest. The owners appealed regarding the sufficiency of the evidence, the trial judge’s role as the thirteenth juror, the liability of one of the property owners, and prejudgment interest. We affirm.

Irina N. Parris v. Jerral Parris - M2006-02068-COA-R3-CV View
Grundy County - This is a post-divorce case involving several issues stemming from a modification of child support and custody hearing and order resulting from that hearing. The parties were divorced in 2003, and the permanent parenting plan was filed on November 10, 2003. Wife retained custody of the parties’ two minor children. Husband was to pay Wife $1,250 a month child support. In 2005, Husband filed motions to review and revise both the custody and visitation arrangements contained in the permanent parenting plan and his child support obligation. The court treated Husband’s motions as a petition for modification of custody and child support. Husband represented himself pro se on July 17, 2006, at the petition hearing. The court entered an order on August 21, 2006, finding no material change of circumstance and thus, Wife retained custody of the two children. The order also increased Husband’s child support obligation. Finally, the court found Husband in contempt of court and sentenced him to five days in jail with $1,000 bond. Husband appeals, arguing that 1) the court erred in finding no material change of circumstance; 2) the court erred in the findings concerning both Husband and Wife’s income pertaining to the child support; and 3) the court erred in finding Husband in contempt. We affirm.

Sandra Jones, next of kin of Larry C. Jones v. Ronnie Smith - M2006-01724-COA-R3-CV View
Smith County - A wrongful death action pursuant to the Governmental Tort Liability Act against a deputy sheriff who shot decedent after a traffic accident, was dismissed by the Trial Court at the conclusion of the plaintiff’s proof. We affirm.

Lennie George v. Alexander Automotive, LLC d/b/a Alexander Toyota - M2006-02655-COA-R3-CV View
Williamson County - The trial court dismissed this action for malicious prosecution because it was filed beyond the one-year limitations period. On appeal, Plaintiff/Appellant asserts he was entitled to rely on incorrect information provided by the court clerk regarding the judgment date of the malicious prosecution suit resolved in Appellant’s favor to toll the limitations period. We affirm dismissal.

Randy Dillard vs. Brandy Lynn Jenkins - E2007-00196-COA-R3-CV View
Polk County - Following the end of a seven-year relationship with Mother, Father filed a Petition for Paternity and Custody/Visitation to establish his paternity of the couple’s daughter and to be designated as her primary residential parent. The parties agreed that Father was the Child’s biological father. Following a hearing in 2003, the trial court entered a Temporary Order, granting temporary custody to Mother, ordering home studies of both parents’ residences, and staying further matters for a later hearing. More than two years later, the trial court held another hearing. After hearing the parties’ evidence, the trial court stated that the issue was whether a change of custody should be ordered, as the initial custody determination had already been made at the 2003 hearing. The trial court concluded that evidence of Mother’s drug addiction was not sufficient to justify a change of custody and therefore denied Father’s request for custody. The trial court did not make a finding of paternity, although it did order Father to pay child support, Mother’s attorney’s fees, and court costs. Father appeals. After careful review, we conclude that the trial court erred by not entering an order establishing Father as the Child’s biological father. We further hold that the trial court applied an incorrect legal standard in making the initial custody determination in this case. As a result, we reverse and remand for entry of an order of paternity and a new trial on the issue of custody.

John C. Kersey, Sr. v. John Bratcher, Beverly Raechelle Wilson and Michelle Blaylock - M2006-01319-COA-R3-CV View
(Separate concurring opinion by Franks, P.J.) View
(Separate dissenting opinion by Lee, J.) View
Rutherford County - John C. Kersey, Sr. (“Plaintiff”) sued John Bratcher, Clerk of the Chancery Court for Rutherford County, Tennessee (“Bratcher”); Beverly Raechelle Wilson, Deputy Clerk of the Chancery Court (“Wilson”); and Michelle Blaylock, Judicial Assistant to Circuit Judge Rogers (“Blaylock”), claiming, in part, that the defendants had violated Tenn. Code Ann. § 10-7-503 regarding records open to public inspection. Blaylock filed a motion for summary judgment, and Bratcher and Wilson filed a motion to dismiss for failure to state a claim upon which relief can be granted. After a hearing, the Trial Court granted Blaylock’s motion for summary judgment and Bratcher’s and Wilson’s motion to dismiss. Plaintiff appeals to this Court. We affirm.

Brian Harlow v. Jewell Cantrell - M2006-00615-COA-R3-CV View
Overton County - The sole issue presented on this appeal is whether the trial court abused its discretion by denying a motion for a continuance filed by one of the parties to this action. The basis of the motion was that the moving party, Brian Harlow, had accepted employment driving a bus in the state of California. The motion for continuance was denied and the trial of the case proceeded in Mr. Harlow’s absence. Judgment was rendered against Mr. Harlow and he has appealed. We are unable to find that the trial court abused its discretion by denying the continuance and affirm the judgment of the trial court.

Katherine McKay v. Ronnie Reece and wife, Mary Reece and James Blankenship and wife, Patricia Blankenship - M2006-01706-COA-R3-CV View
Sumner County - This is an action to set aside a warranty deed based on fraud. The plaintiff inherited family-owned property after her father’s death, and she lived on the property. She obtained a line of credit for $40,000 from the defendant bank, secured by the property. The plaintiff defaulted on the loan, and the bank initiated foreclosure proceedings. The plaintiff contacted the defendants, acquaintances of her father, seeking their advice on how to stop the foreclosure. The defendants told the plaintiff that the bank could not stop the foreclosure, but suggested that, in order to avoid foreclosure, they would assume the plaintiff’s $40,000 loan and the plaintiff would transfer the property to them. The parties agreed that, in addition to the defendants’ assumption of the $40,000 loan, the plaintiff could live on the property for one year and repurchase the property at the end of the year for the amount of the loan plus any incidental costs. With that understanding, the plaintiff executed a warranty deed transferring the property to the defendants, and the defendants assumed the loan. Before the end of the agreed year, the defendants listed the property for sale with a real estate agent for approximately $400,000. When the plaintiff questioned the defendants, she was told that she could purchase the property for one dollar over the highest offer the defendants had received for the property. The plaintiff then filed this lawsuit, asking the court to set aside the warranty deed transferring the property to the defendants. After a bench trial, the trial court set aside the deed based on inadequacy of consideration and other badges of fraud. The defendants now appeal. We affirm, upholding the trial court’s credibility determinations and finding that the preponderance of the evidence supports the trial court’s decision.

Robbie Keeler v. Metro Nashville Airport Authority - M2006-00394-COA-R3-CV View
Davidson County - Employee of the Metropolitan Nashville Airport Authority (MNAA) appeals the MNAA’s decision to demote her based on a determination that Employee abused her authority by attempting to have a subordinate conduct her job-specific testing, which she had previously failed. Finding substantial and material evidence to support the MNAA’s decision, the judgment of the trial court is affirmed.

Robert L. Watts vs. Mercedes-Benz USA, LLC - E2007-00311-COA-R3-CV View
Hamilton County - This appeal presents the issue of whether a buyer of an allegedly defective automobile is entitled to the remedy of revocation of acceptance against the automobile distributor under Tennessee’s Uniform Commercial Code and the Federal Magnuson-Moss Warranty Act. We conclude that the remedy of revocation of acceptance, previously known as rescission, is only available against the seller, not the distributor, of the product. We therefore affirm the trial court’s grant of summary judgment to the distributor.

Melinda Anderson, et al vs.Brett WIlder, et al - E2006-02647-COA-R3-CV View
Knox County - This case involves a dispute between members of FuturePoint Administrative Services, LLC (“FuturePoint”), a limited liability company. Plaintiffs sued Defendants after being expelled by Defendants from FuturePoint by vote. Plaintiffs received a buyout price of $150 per ownership unit for their shares and shortly after the expulsion, Defendants sold those ownership units to a third party for $250 per unit. Plaintiffs sued alleging, among other things, that Defendants had violated their fiduciary duty and duty of good faith to Plaintiffs. Defendants argued, in part, that their actions were authorized by FuturePoint’s operating agreement. After a jury trial, judgment was entered in favor of Plaintiffs and Plaintiffs were awarded damages plus pre-judgment interest totaling $98,895.36. Defendants appeal raising issues regarding the Trial Court’s denial of a motion for directed verdict; an alleged lack of evidence regarding the actions of Defendants Dee Dee Wilder, Anna Stout, and Kelly Welles; the imposition of pre-judgment interest; and allegedly erroneous jury instructions. We affirm.

Wanda Moody, vs. Timothy Hutchison and Knox County, Tennessee - E2006-01137-COA-R3-CV View
Knox County - This action was brought to gain access to public records in defendants’ office. In the course of litigation numerous issues were raised, but the Trial Court ordered access to the records, and when plaintiff claimed full access was not given, the Trial Court directed the plaintiff to file a contempt petition against defendant which was done, and the records were ultimately obtained after an appeal. But the Trial Court, after ruling that plaintiff was entitled to attorney’s fees, refused to award attorney’s fees because plaintiff’s counsel refused to comply with the Court’s orders. In the course of the litigation, plaintiff sought to disqualify the Sheriff’s attorney, and ultimately sought the Trial Judge’s recusal. The Trial Court ruled against plaintiff on these and other issues, and plaintiff has appealed. We affirm the Judgment of the Trial Court.

Cases posted the week of 09/10/2007
Kimberly L. Payne vs. Michael R. Payne - E2006-02467-COA-R3-CV View
Hamilton County - This is a divorce case involving a marriage of almost thirty years between Kimberly L. Payne (“Wife”) and Michael R. Payne (“Husband”). The parties have two adult children. Wife filed a complaint for divorce based on Husband’s alleged inappropriate marital conduct. Husband filed a counterclaim also seeking a divorce, but claiming it was Wife who had engaged in inappropriate marital conduct. Following a trial, the Trial Court divided the marital property and awarded Wife alimony in futuro of $1,800 per month. Husband appeals claiming that, pursuant to Tenn. Code Ann. § 36-5-121(f)(2), the alimony award was improper because the Trial Court failed to take into account that Wife was living with a new boyfriend who, Husband claims, was providing financial support to Wife. Husband also challenges the marital property distribution. We affirm.

Vera J. Rogers vs. Sidney David Rogers - E2005-02645-COA-R3-CV View
Blount County - In this divorce action, the wife was awarded the divorce and periodic alimony. The Trial Judge also divided the marital property. The husband appealed. We affirm the Trial Court’s Judgment, as modified.

The Estate of Eldora Burkes, by and through its Administrator, CTA, Calvin Burkes v. St. Peter Villa, Inc., d/b/a St. Peter Villa Nursing Home - W2006-02497-COA-R3-CV View
Shelby County - This appeal involves an award of discretionary costs after a voluntary dismissal. The plaintiff estate filed a lawsuit against the defendant nursing home, alleging abuse and neglect of the plaintiff’s decedent. The defendant nursing home filed a motion for summary judgment and a motion to exclude the plaintiff’s expert. The motion for summary judgment was denied, but the motion to exclude the plaintiff’s expert was granted. The plaintiff then filed a notice of voluntary nonsuit. Consequently, the trial court entered an order of voluntary dismissal without prejudice. After entry of this order, the defendant nursing home filed a motion for discretionary costs, pursuant to Rule 54.04(2) of the Tennessee Rules of Civil Procedure. The trial court granted the motion, and entered an order assessing the costs against the plaintiff estate. The plaintiff estate now appeals, arguing that the defendant nursing home was not entitled to an award of discretionary costs because it obtained no relief on the merits of the case and therefore was not a “prevailing party.” We affirm, finding that Rule 54.04(2) expressly authorizes the trial court, in its discretion, to award discretionary costs to a defendant in a lawsuit that is voluntarily dismissed without prejudice.

In Re: The Estate of William Reynolds, Jr., Deceased; Randal Reynolds, Administrator of the Estate of William Reynolds, Jr., v. Freddie Volner, et al. - W2006-01076-COA-R3-CV View - - - Dissenting Opinion - View
Gibson County - This appeal involves a sale of equipment, made by a decedent to his friend, eleven days before he died. The administrator of the decedent’s estate filed a complaint to set aside the sale alleging fraud, undue influence, and inadequate consideration. Following a bench trial, the trial court set aside the sale and ordered the estate to reimburse the purchase money to the buyers. We reverse.

Cases posted the week of 09/03/2007
Weyerhaeuser Company v. Loren L. Chumley, Commissioner of Revenue for the State of Tennessee - M2005-00212-COA-R3-CV View
Davidson County - This appeal involves the denial of a claim for the job tax credit, provided in Tenn. Code Ann. § 67-4-908(1994), by the Commissioner of Revenue. The Appellant acquired the Kingsport Fine Paper and Cut Sheet Plant (Paper Plant) located in Kingsport, Tennessee from the Mead Corporation. The day the Appellant acquired the Paper Plant; the Mead Corporation terminated all 820 of its full-time employees. The following day, the Appellant hired 615 of the former Mead Corporation’s employees. The Appellant later claimed the job tax credit, based on the hiring of the 615 former employees of Mead Corporation. The Commissioner of Revenue denied the Appellant’s claim, and the trial court affirmed the Commissioner. On appeal, the Appellant claims that the 615 jobs, on which the credits are based, are “net new full-time employee job[s]” pursuant to Tenn. Code Ann. § 67-4-908(b)(2)(A)(1994). We conclude that the 615 jobs are not “net new full time employee job[s]”. Therefore, we affirm.

Jonathan Patrick Hayes v. Deborah Ingrid Hayes - M2006-02356-COA-R3-CV View
Rutherford County - The Trial Court denied the husband Tenn. R. Civ. P. 60.02 relief from a default judgment in the divorce case. We grant a new trial as to equitable division of marital property.

Steven Waters, et al vs. Loren L. Chumley, Commissioner of Revenue For The State of Tennessee - E2006-02225-COA-R3-CV View
Loudon County - The issue we address in this appeal is whether Tennessee’s Drug Tax is constitutionally valid. Plaintiff was arrested for possession of cocaine, and shortly thereafter, the Tennessee Department of Revenue assessed taxes, penalty, and interest against him pursuant to a state excise tax statute that levies a tax on persons in possession of designated amounts of unauthorized substances, T.C.A. § 67-4-2801, et seq. Subsequently, the Department of Revenue filed a tax lien against plaintiff’s real property and executed a levy against his bank account. Plaintiff filed suit against the Commissioner of Revenue, charging that the tax statute violates both the state and federal constitutions. The trial court entered judgment in favor of plaintiff, decreeing that the tax constitutes a violation of constitutional rights of due process and protections against self incrimination. We affirm the trial court’s conclusion upon the alternate ground that the statute is arbitrary, capricious, and unreasonable and, therefore, invalid under the Tennessee Constitution, in that it seeks to tax as a privilege, activity that prior legislation has designated as criminal activity.

In Re: C. R. D. - M2005-02376-COA-R3-JV View
Montgomery County - This appeal involves the parenting arrangements for a non-marital child. The biological father, whose military career had prevented him from living near the child, moved to the city where the child resided and requested the Montgomery County Juvenile Court to establish a joint parenting arrangement which gave each parent equal parenting time. The juvenile court declined to consider the father’s petition based on its conclusion that the father’s decision to move to the city where the child resided was not significant enough to warrant further modifications in the existing parenting arrangement. We have determined that the father has established that a material change in circumstances has occurred and that the trial court must consider whether further modifications in the existing parenting arrangement to enable the child to spend more time with her father would be in the child’s best interests.

Rogersville Investment Corporation d/b/a Holiday Inn Express vs. Meridian Insurance Group,Inc. - E2007-00600-COA-R3-CV View
Hawkins County - In this case involving an insurance claim for property damage when a nearly-completed Holiday Inn building in Rogersville partially burned, the issue is how much money the insurance company must pay under the contract. The insurance contract provided that the insurer would pay the insured “the cost to repair, replace or rebuild the property with material of like kind and quality.” The insured submitted proof that the contractor’s bill for the covered repairs was $47,982.92. Over the insured’s hearsay objection, the insurance company introduced evidence that its third-party investigator, who inspected the damaged property, prepared an estimate approximating the loss at $20,532.94. The trial court rejected the insurer’s defense of accord and satisfaction, and awarded the insured $33,757.93. We affirm the trial court’s judgment that the insurer did not prove accord and satisfaction, and hold that under the unambiguous terms of the contract, the insurer is required to pay the insured $46,982.92, in the absence of proof that the amount charged by the contractor for repairs is excessive or unreasonable. We therefore affirm the judgment of the trial court as modified.

Diane Downs, individually and as natural parent of Ryan Cody Downs v. Mark Bush, et. al. - M2005-01498-COA-R3-CV View
Davidson County - The mother of a deceased eighteen-year-old filed this wrongful death action against four defendants with whom her son had been partying prior to his death. Following the party and during the drive on Interstate 65 back to the deceased’s apartment, the deceased, who had been riding in the bed of the pickup truck because he was intoxicated and nauseous, fell out or jumped out of the bed of the truck. Thereafter, the deceased was seen standing near but off of the roadway, at which time he ran into traffic, was struck by two vehicles traveling north on Interstate 65, and later died from the trauma. Following discovery, each defendant filed a motion for summary judgment contending, inter alia, he owed no duty to the deceased, he did not breach a duty, and the deceased’s injuries and death were the result of the deceased intentionally running into traffic. The trial court granted summary judgment without stating its grounds. This appeal followed. Finding each defendant is entitled to summary dismissal as a matter of law, we affirm.

Tennessee Department of Children's Services v. L. H. - M2007-00170-COA-R3-PT View
Robertson County - The trial court terminated the mother’s parental rights upon findings that she abandoned the child by willfully failing to visit and support the child, and that termination was in the child’s best interest. The mother appeals contending the Department of Children’s Services failed to make reasonable efforts to reunite the family. We have concluded that the mother failed to provide contact information to the Department, and she abandoned her child by willfully failing to visit or support the child, each of which relieved the Department of the affirmative duty to make reasonable efforts at reunification. We have also determined that termination of the mother’s parental rights was in the child’s best interest. Accordingly, we affirm the termination of her parental rights.

Clarence Elwin Proctor v. Linda Webb Proctor - M2006-01396-COA-R3-CV View
Davidson County - This appeal arises out of a post-divorce petition to reduce the husband’s alimony in futuro obligation. Although the husband’s income dropped significantly since the divorce, the trial court concluded he had not experienced a material and substantial change “in his lifestyle” based on a finding the husband’s new wife contributed to the payment of some of his obligations. We have concluded there has been a material and substantial change in the husband’s financial circumstances and therefore reverse and modify the decision of the trial court.

Cases posted the week of 08/27/2007
James Rasberry v. Orman Campbell, O.D., et al. - W2006-01668-COA-R3-CV View
Shelby County - Plaintiff brought suit to enforce a contract for the sale of real estate contending that one of the selling heirs was the authorized agent of the remaining heirs to enter into the agreement. Defendants filed a motion for summary judgment supported by affidavits and the Plaintiff countered with his affidavit. Finding no genuine issue of material fact, the trial court granted the motion and we affirm.

Vickie Kay Moore v. Vick Moore - M2004-00394-COA-R3-CV View
Bedford County - This appeal arises out of post-divorce proceedings. The final decree of divorce and marital dissolution agreement required the husband to refinance the parties’ marital residence within thirty days of the decree, and to pay the wife $15,000 for her equity in the residence. Approximately two months after the decree was entered, the wife filed a petition to show cause alleging that the husband had not refinanced the home or paid her for the equity. The trial court entered an order finding the husband in contempt, but it did not find that the husband had willfully failed to meet his obligations. The court also ordered the husband to pay the wife’s attorney’s fees. We reverse in part and affirm in part.

Travelers Property Casualty Company of America vs. Uitrac Railroad Materials, Inc. - E2006-026790-COA-R3-CV View
Knox County - Plaintiff sought to recover payment of workers compensation benefits via subrogation against the defendant. The Trial Court entered Judgment for defendant. We affirm.

Michael Clawson, et ux vs. Michael L. Burrow, et al - E2006-02099-COA-R9-CV (Opinion on Petition to Rehear) View
Carter County - Herschel Pickens Franks, P.J., delivered the opinion of the court, in which Charles D. Susano, Jr., J., and Sharon G. Lee, J., joined.

Arthur Creech, et ux, et al vs. Robert R. Addington, et al - E2006-01911-COA-R3-CV View
Sevier County - The Trial Court affirmed jury verdicts returned in favor of the Plaintiffs on the grounds that agents of the non-resident Defendants had made false representations to Plaintiffs at a meeting in Gatlinburg, Tennessee. On appeal, we affirm the Trial Court’s Judgment as to the Plaintiffs attending the meeting in Gatlinburg, but grant a new trial as to the Plaintiffs not in attendance at the meeting.

Raymond Clayton Murray, Jr. et al vs.Jes Beard, Esquire - E2006-01661-COA-R3-CV View
Separate Concurring and Dissenting Opinion - View
Hamilton County - This is a legal malpractice case. Raymond Clayton Murray, Jr. (“the Client”) sued his former attorney, Jes Beard (“the Attorney”), in connection with the Attorney’s representation of the Client in the latter’s action to modify child support. In the present case, after the Attorney failed to answer interrogatories regarding his experts, the Client filed a motion pursuant to Tenn. R. Civ. P. 37 seeking to prevent the Attorney from offering any expert testimony. The court entered an order granting the Client’s motion and barring the Attorney from introducing expert testimony at trial. The Client subsequently filed a second motion for Rule 37 sanctions, this time seeking a default judgment against the Attorney. The motion sought this further sanction as punishment for the Attorney’s alleged failure to cooperate in the discovery process. The court granted this motion and announced its decision in a fax to counsel on the day before trial. An order was never entered memorializing this ruling. The Attorney filed a motion to reconsider, which the court denied. After a hearing solely on the issue of damages, the trial court entered a judgment against the Attorney for $16,697.38. He appeals. After review, we hold that the trial court abused its discretion when it granted a default judgment against the Attorney as a Rule 37 sanction. We vacate the trial court’s judgment and remand for a new trial, but solely on the issue of liability.

Edwinna Ruth Blackburn vs. Heath Bradley Blackburn - E2006-00753-COA-R3-CV View
Bledsoe County - In this divorce case, Edwinna Ruth Blackburn (“Wife”) challenges the validity of the judgment of divorce entered nunc pro tunc following the death of her spouse, Heath Bradley Blackburn (“Husband”). The trial court held that the divorce was granted on June 6, 2005, i.e., before Husband’s death on October 30, 2005, when the parties announced their settlement to the court. Wife appeals and argues that this case was still pending when Husband died. She claims that his death abated her complaint for divorce. We affirm.

Kenneth Barrett vs. Frank Vann dba Frank Vann Construction Company, et al - E2006-01283-COA-R3-CV View
Roane County - The plaintiff, Kenneth Barrett, entered into a written contract with Frank Vann, doing business as Frank Vann Construction Company (“Vann”), for Vann to construct a parking area on the plaintiff’s property and to re-pave the plaintiff’s driveway. It was later discovered that a retaining wall would be necessary to support the parking area due to the steep slope of the plaintiff’s property. Vann suggested to the plaintiff that he use Matt Johnson, doing business as ProGreen Landscaping & Lawn Maintenance (“Johnson”), to build the wall. Johnson agreed to build it. After the wall was completed, it began to collapse. This prompted the plaintiff to file suit. A jury returned a money verdict against Vann and Johnson for violating the Tennessee Consumer Protection Act, T.C.A. § 47-18-101 (Supp. 2006) (“the TCPA”). The jury also found Vann guilty of breach of contract. When, as to Vann, the jury returned separate monetary verdicts for the TCPA violation and the breach of contract, the trial court required the plaintiff to elect between the two monetary awards. Under compulsion, the plaintiff chose the damage award under the TCPA. The trial court then trebled the TCPA damages and awarded the plaintiff a part of his request for attorney’s fees. The plaintiff and Vann both raise issues on appeal. We modify the trial court’s judgment. As modified, it is affirmed. This case is remanded to the trial court with instructions.

The Metropolitan Government of Nashville and Davidson County v. Alfred O. Hibler, III - M2006-01633-COA-R3-CV View
Davidson County - The Metropolitan Government of Nashville and Davidson County (“Metro”) brought this action alleging that Alfred O. Hibler, II, had failed to report earned income as required in order to avoid a reduction in the amount of his Metro disability pension, resulting in significant pension overpayments to Mr. Hibler. The income in dispute consisted of distributions of excess earnings of an S corporation owned by Mr. Hibler. The issue is whether this income is properly characterized as “earned income,” defined by the Metro Code as including “wage or salary – not rent, interest, dividends or capital gains.” After a trial, the trial court ruled that the distributions, labeled “draws” by the S corporation, were not earned income required to be reported to Metro for purposes of calculating Mr. Hibler’s disability pension, and dismissed the action. We affirm the judgment of the trial court.

Johnny D. Hall v. Mike Bryant, et al. - M2007-00003-COA-R3-CV View
Davidson County - The pro se Appellant, an inmate in the custody of the Tennessee Department of Correction, appeals the trial court’s dismissal on a 12.02 motion of his U.S.C. § 1983 complaint for alleged violation of his right of access to the courts. Finding no error, we affirm.

Tennessee ex rel. Sandra J. Franklin vs. Kevin Hurley - E2007-00009-COA-R3-JV View
Grainger County - This case involves the issue of a father’s alleged obligation to pay child support for a period of approximately a year and a half. Because we hold that the trial court failed to correctly apply the concept of deviation under the Child Support Guidelines, we vacate so much of the judgment of the trial court as fails to order the father to pay child support for the period April 16, 2005, to October 2, 2006. This case is remanded for further proceedings.

Frank E. Haren, Sr. vs. State of Tennessee, Commissioner of Revenue - E2006-01973-COA-R3-CV View
McMinn County - Frank E. Haren, Sr., (“Haren”) is the sole proprietor of an entity that exists under the name of F.E.H. Enterprises (“F.E.H.”). He is also the chief executive officer and a stockholder of a corporation named Haren Construction Company, Inc. Haren attended auctions in Tennessee and other states and purchased used construction equipment in the name of F.E.H. Haren would represent to the various auction companies with which he dealt that the equipment was being purchased for resale, thereby avoiding the payment of sales tax. Following these transactions, Haren Construction would reimburse F.E.H. for the amount of Haren’s successful bids. It would not pay F.E.H. any sales tax on these transactions. The Tennessee Commissioner of Revenue (“the Commissioner”) determined that Haren had fraudulently avoided the payment of sales tax. The Commissioner issued a tax assessment against Haren individually for the sales tax due on the purchases of the equipment by Haren Construction from F.E.H., as well as an additional assessment for fraud. Haren filed suit challenging the assessment. The trial court upheld the amount of the assessment as well as the fraud penalty. We affirm.

Marc A. Glinstra v. Candice M. Lannin-Glinstra - M2006-02113-COA-R3-CV View
Williamson County - In this divorce case, the Trial Court apparently determined that Marc A. Glinstra (“Father”) was willfully and voluntarily underemployed and set his income at $5,000 per month. Utilizing that figure, the Trial Court set Father’s child support obligation and thereafter concluded that Candice M. Lannin-Glinstra (“Mother”) was entitled to rehabilitative alimony of $1,500 per moth for a period of four years, and alimony in solido of $10,000 for payment of attorney fees. Father appeals the Trial Court’s determination that he was willfully and voluntarily underemployed and that, therefore, his income should be set at $5,000 per month. Father also challenges the amount of his child support payment and claims that the Trial Court erred when it determined that Mother was entitled to alimony. We vacate those portions of the Trial Court’s judgment determining Father’s income and setting his child support and alimony obligations, and remand for further proceedings consistent with this opinion.

Leslie Quimby Allen v. William E. Sulcer, et al. - M2006-01236-COA-R3-CV View
Giles County - This is a negligence action. A landlord instructed his tenant to prune large limbs from a tree on the rental property with a chainsaw. The tenant’s eighteen year old daughter was assisting by clearing the limb debris and sustained severe internal injuries from a falling limb. The daughter instituted this negligence action against the landlord, relying on theories of the landlord’s negligence and vicarious liability. The trial court granted summary judgment for the defendant landlord. Finding that the defendant did not carry his burden on the issue of the duty to select a competent contractor, we reverse and remand.

Janette Direnzo Frazier v. Russell Keith Frazier - W2007-00039-COA-R3-CV View
McNairy County - The trial court found Defendant/Petitioner to be in contempt; denied his petition to modify alimony upon finding no change in material circumstance; ordered him to pay back alimony, plus 10% interest; awarded Plaintiff/Respondent’s attorney’s fees. On appeal, Defendant/Petitioner asserts the trial court erred in failing to find a material change in circumstance. We vacate in part, affirm in part, and remand for further proceedings.

O. Hogan Harrison, etal v Avalon Properties, LLC, etal - E2006-00537-COA-R3-CV View
Loudon County - O. Hogan Harrison and Sally D. Harrison (“Plaintiffs”) sued Avalon Properties, LLC (“Avalon Properties), Avalon Golf Properties, LLC (“Avalon Golf”), and Usonia Homes, Inc. (“Usonia”) for breach of contract and negligent misrepresentation, among other things, in connection with the construction of Plaintiffs’ house. Plaintiffs were granted a default judgment against Usonia for its failure to answer the complaint. After a bench trial, the Trial Court entered an order of involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02 as to Avalon Properties. The Trial Court also entered a Final Judgment incorporating by reference the Trial Court’s Opinion finding and holding, inter alia, that Avalon Golf made representations to Plaintiffs through its agent that Usonia was qualified to build the house and implicitly vouched that Usonia had the ability to fund the work; that the representations were made with the intent to induce Plaintiffs to rely on them; that Plaintiffs did rely on the representations to their detriment and were damaged; and that Avalon Golf was negligent in the selection of Usonia as the exclusive builder. The Trial Court awarded Plaintiffs a judgment of $164,065.87. Avalon Golf appeals to this Court. We reverse that portion of the Trial Court’s judgment holding Avalon Golf liable for negligent misrepresentation and negligent selection, and affirm as to the other defendants.

Blackburn & McCune, PLLC v. Pre-Paid Legal Services, Inc. and Pre-Paid Legal Services of Tennessee, Inc. - M2006-01380-COA-R3-CV View
Davidson County - Blackburn & McCune brought suit alleging it was fraudulently induced to enter an administrative services contract with Pre-Paid Legal Services, Inc. The trial court dismissed the suit based upon a forum selection provision contained in an Attorney Provider Agreement executed by the parties. Blackburn & McCune has appealed. Based upon our interpretation of the forum selection clause, we reverse the judgment of the trial court.

Bruce Bodor, et al. v. Green Tree Servicing, LLC, et al. - M2007-00308-COA-R10-CV View
Davidson County - Plaintiffs executed installment contracts and notes which contained identical arbitration clauses, giving Financing Corporation a security interest in fifteen mobile homes purchased by Plaintiffs. Plaintiffs allege that an employee of Financing Corporation unlawfully induced the tenants of Plaintiffs’ mobile homes to breach their leases. Defendants appeal the trial court’s decision declining to compel arbitration pursuant to the financing agreements. We conclude that Plaintiffs’ claims arising from the fifteen units under contract with Financing Corporation are covered by the arbitration clauses; however, the sparse record does not support a finding that the arbitration clauses cover Plaintiffs’ claims arising out of units not financed by Financing Corporation. Accordingly, we reverse the trial court in part and affirm in part.

Cases posted the week of 08/20/2007
Frank Bailey, et ux, et al vs. Carroll S. Gwyn, et ux - E2006-01461-COA-R3-CV View
Union County - In this action to have an easement established across defendants’ property, the Trial Court held there was clear and convincing evidence that plaintiffs were entitled to an easement by adverse use. We affirm.

Ronald Timmons v. Metro Government of Nashville, Davidson County, Tennessee - M2006-01828-COA-R3-CV View
Davidson County - The trial court granted the municipal government summary judgment, dismissing a negligence claim under the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101 et seq. We reverse, finding there are issues of disputed fact surrounding the plaintiff’s treatment by police officers which form the basis of his negligence claim.

In Re: Order to Encapsulate Native American Indian Gravesites in Concrete and Pave Over With Asphalt - M2006-01749-COA-R3-CV View
Davidson County - During construction involving Hillsboro Road in Davidson County, the Department of Transportation discovered three Native American Indian graves. The Department of Transportation eventually reinterred the graves and encapsulated the graves in concrete. The Department of Transportation later determined, after the fact, that simply encapsulating the graves in concrete did not comply with relevant statutory law. A first lawsuit was filed challenging the Department’s alleged policy of encapsulating graves. While the first lawsuit was pending, the construction project was completed. On appeal in the first lawsuit, this Court determined that the plaintiffs’ claims were moot and none of the applicable exceptions to the mootness doctrine applied. The present case involves the same claims as the first lawsuit, with the only exception being that this lawsuit initially was filed pursuant to the Uniform Administrative Procedures Act, Tenn. Code Ann. § 4-5-101, et seq. The Trial Court dismissed this lawsuit after finding that the same claims raised by the plaintiffs in this case were held to be moot in the first appeal. We affirm.

Gordon H. Thompson and Brent G. Thompson v. John W. Logan - M2005-02379-COA-R3-CV View
Davidson County - Defendants appeal the trial court’s award to plaintiff of damages under an agreement wherein defendants and plaintiff were sharing brokerage commissions generated by plaintiff’s clients. The trial court found the term “retirement,” which governed whether plaintiff was entitled to a five (5) year pay out, was ambiguous and resorted to consideration of extrinsic evidence. We reverse and hold that the term is not ambiguous and that plaintiff is not entitled to payment under the retirement provision of the agreement. We also find that the defendants are not precluded by Tenn. R. App. P. 3(f) from raising the post-judgment imposition of discovery sanctions against them. However, we decline to reverse the sanctions decision since the trial court did not abuse its discretion in awarding them.

In Re: R. D. H., dob 7/22/95; Linda Madorin v Susan Denton - M2006-00837-COA-R3-JV View
Cannon County - This case involves a child custody dispute between a mother and a grandmother. The child’s parents agreed to transfer temporary custody of the child to the grandmother when the child was three years old. The parents were divorcing at the time, using illegal drugs, and financially incapable of providing for the child. Still, the child would stay at her mother’s home every other weekend, during breaks from school, and for some time during the summer months. The mother eventually remarried and had two sons. When her daughter was nearly ten years old, the mother filed a petition to regain custody from the grandmother. The trial court determined that the mother was entitled to a presumption of “superior parental rights,” and therefore she could not be denied custody of the child unless the grandmother could demonstrate a risk of substantial harm to the child upon a change of custody. Finding no risk of substantial harm, the trial court awarded custody to the mother. The grandmother appeals, contending that the trial court erred in applying the presumption of “superior parental rights.” Alternatively, the grandmother claims that the court erred in finding no risk of substantial harm to the child. For the following reasons, we affirm.

Thomas Jeffery Edgeworth v. Stacy Brawley Edgeworth - W2006-01813-COA-R3-CV View
Shelby County - The parents, who have three minor sons, were divorced in 2003, and they entered an agreed parenting plan whereby the mother was designated the primary residential parent and the father was ordered to pay child support. The father experienced an increase in income the following year, and the mother petitioned the chancery court for an increase in his child support obligation, to which the father agreed. In early 2006, the father left his job for a similar job with his stepfather and brother which provided him with less income. The father petitioned the chancery court for a downward modification of his child support obligation, citing his decreased income. The mother then sent the father a notice of her intent to relocate from Memphis to Franklin, Tennessee, because of an employment opportunity. After hearings, the chancery court denied the mother’s petition for relocation. The chancery court instructed the parties’ attorneys to calculate child support according to the Tennessee Child Support Guidelines using income amounts that it had imputed to the mother and father, and without providing any basis as to how it had determined these figures. At a later hearing, the chancery court set a child support amount in excess of what the parties had determined according to the Tennessee Child Support Guidelines, which amount was ordered to include the father’s contribution to the children’s private school tuition. The chancery court did not include the child support worksheets in its order, nor did it provide written findings supporting its decision to deviate. We reverse and remand for further proceedings.

Nancy Steelman v. State of Tennessee - M2006-00706-COA-R3-CV View
An inmate appealed dismissal of her small docket claim by Claims Commissioner. Since under Tenn. Code Ann. § 9-8-403(a)(2) this court has no jurisdiction to hear an appeal of a decision on the small claims docket, this appeal is dismissed.

Charles and Ann Halford v. Harold R. Gunn - W2006-02528-COA-R3-CV View
Gibson County - The plaintiff-buyers entered into an installment sales contract in 1991 in which they agreed to purchase real property owned by the defendant-seller. The contract provided that upon the plaintiffs’ payment of the purchase price, the defendant would provide a deed conveying the property to them free of encumbrances. In 2002, a general sessions judgment was entered against the defendant in an unrelated case, and the defendant appealed that judgment to the circuit court, where that case currently remains pending. The judgment was filed as a lien on the real property in 2002. In late 2004 or early 2005, the plaintiffs had made all necessary payments on the real property, and the defendant conveyed the property to them by warranty deed. While attempting to sell the real property in 2005, the plaintiffs discovered the existence of the 2002 judgment lien on the property, and they placed funds in escrow in order to satisfy their intended purchaser that the lien would be removed or paid. The plaintiffs filed a warrant in general sessions court against the defendant, alleging that he was liable for breach of the covenant against encumbrances contained in the warranty deed. The general sessions court entered judgment in favor of the plaintiffs, and the defendant appealed to the circuit court. The plaintiffs filed a motion for summary judgment and sought an award of reasonable attorney’s fees. The circuit court granted the motion for summary judgment, but denied the plaintiffs’ request for attorney’s fees. On appeal, we affirm in part, reverse in part, and remand for a determination of reasonable attorney’s fees incurred below and on appeal.

Towe Iron Works, Inc., et al vs. Donald W. Towe, Sr., et al - E2006-01971-COA-R3-CV View
Knox County - In this action to enforce an option to purchase contained in a lease between plaintiff/lessee and the children of the deceased lessor, the Trial Court, while finding the terms of the lease had been breached by the lessee, held that the plaintiff had properly exercised the option to purchase the property. Defendants have appealed and we reverse the Judgment of the Trial Court and remand.

Gina Orlene Wynne Ament v. Joseph Nolan Wynne - M2004-01876-COA-R3-CV View
Giles County - This case involves a dispute over the correct interpretation of the allocation of debt found in a marital dissolution agreement (MDA). The wife was awarded a Ford Explorer under the MDA and was made solely responsible for paying the note on the automobile. The husband was made responsible for “the small Community Bank note.” The husband argues that “the small Community Bank note” is a $400 obligation related to a bad check. The wife argues that it is an obligation of over $21,000, secured by the Explorer, which is characterized as “small” to distinguish it from the $80,000 mortgage indebtedness for which the MDA makes her responsible. The trial court agreed with the wife, ordered the husband to pay the $21,000, and held that the wife had no financial obligation related to the Explorer. We reverse the trial court because its order negates the obligation the wife willingly assumed when she signed the MDA. We accordingly order the wife to pay the principal amount of the only note that was secured by the Explorer at the time of the parties’ divorce.

BEP Services, Inc., v. Carefirst Foundation, Inc., f/k/a Provident Foundation, Inc. - W2006-02059-COA-R3-CV View
Shelby County - Plaintiff appeals the grant of summary judgment to defendants in its suit filed on the theory of equitable subrogation. The trial court found that the undisputed facts established that plaintiff acted as a volunteer and proved no fraud, accident or mistake. We affirm.

Emily Kirby Boggs v. William Barry Boggs - M2006-00810-COA-R3-CV View
Williamson County - This post-divorce appeal seeks reversal of two civil contempt findings and also contends that a pendente lite injunction restraining the disposition of funds violated a bankruptcy court stay. For the reasons stated herein, this Court finds no reversible error and remands for a determination of appropriate attorney’s fees to be awarded to the appellee.

Tom R. Smith v. Thomas Harding Potter - M2006-02078-COA-R3-CV View
Davidson County - This issue in this case is whether a litigant is entitled to a refund of a filing fee when a case is filed with the wrong court. Mr. Smith filed an appeal of a general sessions court judgment with the Davidson County Chancery Court. After filing his appeal in chancery court, Mr. Smith realized that Tennessee law provides that general sessions appeals are within the exclusive jurisdiction of the circuit court; he then filed a motion for a refund of his filing fee from the Clerk and Master in the amount of $192.50. The chancery court denied Mr. Smith’s motion and dismissed his lawsuit. In deciding where to file his appeal, Mr. Smith said he relied upon the statement of a deputy clerk in the Clerk and Master’s office, who told him that the office “accepts appeals from general sessions all the time,” and upon the fee schedule of the Clerk and Master’s office, which among other types of cases lists a filing fee for “Appeals from General Sessions.” Mr. Smith appeals the chancery court’s ruling that he was not entitled to a refund of his filing fee. After careful review, we find that there is no legal basis for allowing a refund of filing fee when a party files an appeal in a court which lacks subject matter jurisdiction over the dispute. Furthermore, Mr. Smith failed to satisfy the requirements of equitable estoppel based on the alleged statement of the clerk and the fee schedule. As a result, we hold that the chancery court did not err in denying Mr. Smith’s request for a refund. We affirm and remand.

In the Matter of: M.A.B., D.C.M., M.A.M., M.I.M., D.Z.M., and W.M.E.M. - W2007-00453-COA-R3-PT View
Madison County - The trial court terminated Mother’s parental rights to six of her children based upon the persistence of conditions that led to removal of the children from Mother’s care by the Department of Children’s Services and upon finding that termination of Mother’s parental rights was in the children’s best interests. We affirm.

Terrie Lynn Hall Hankins v. James Michael Hankins - W2006-00232-COA-R3-CV View
Shelby County - In this case, the plaintiff wife filed for divorce from the defendant husband in December of 2003. The husband collaterally attacked the validity of the wife’s previous divorce from her second husband in 1985, asserting that the wife was still married to her second husband. The trial court bifurcated the proceedings to determine the validity of the parties’ marriage. After the hearings on this issue, the trial court found that the wife’s efforts at service of process on her second husband during her second divorce had been insufficient, and ruled that any subsequent marriage was therefore invalid. After conducting further hearings as to the parties’ property, in its order on division of assets, the court found that a bank account held jointly by the parties was the sole property of the husband, and it awarded each party a one-half interest in real property located in Humphreys County, Tennessee. We affirm in part, reverse in part, and remand for further proceedings in the circuit court.

Cases posted the week of 08/13/2007
Steven D. Tutt v. Tennessee Dept. of Corrections - M2005-02563-COA-R3-CV View
Davidson County - An inmate convicted of rape of a child filed a Petition for Declaratory Judgment, asking the Chancery Court to find that he was entitled to earn sentence reduction credits so he could be released from prison before the end of his fifteen year sentence. The Chancery Court dismissed the petition on the ground that the statute under which he was convicted required him to serve 100% of his sentence, undiminished by any sentence reduction credits. We affirm.

Craig Green v. Morgan Hines - M2004-01883-COA-R3-CV View
Maury County - Appellant and cross-plaintiff appeals the trial court’s order which, among other things, granted an easement across the appellant’s property. The record contains no statement of the evidence or transcript of the proceedings; therefore, the trial court’s findings of fact are presumed to be correct. We affirm.

Lamar Outdoor Advertising Co. and Sam Furrow v. Tennessee Department of Transportation - M2006-00915-COA-R3-CV View
Davidson County - This case involves state billboard laws and regulations. The plaintiff billboard owner owned three wooden billboard structures permitted as grandfathered, non-conforming devices. In 2000, a storm damaged one of the billboard structures. The plaintiff obtained permission from the defendant Department of Transportation to rebuild the damaged billboard structure in accordance with the “natural disaster” provision of Tenn. Comp. R. & Regs. 1680-2-3-.04, which required that grandfathered non-conforming signs damaged during a natural disaster be rebuilt “to their original height and size using like materials.” The plaintiff billboard owner then tore down all three of its wooden billboards and in their place erected a single, larger steel billboard structure. The Department of Transportation found that the larger steel structure constituted a new sign built without a valid permit and in violation of current spacing requirements, and terminated the permits for the three grandfathered wooden billboards. After exhausting all administrative remedies, the plaintiff billboard owner appealed the Department of Transportation’s decision to the trial court. The trial court affirmed, and the plaintiff now appeals. We affirm, finding that the plaintiff billboard owner did not rebuild the damaged billboard structure to the “original height and size” as required by the natural disaster regulation. Consequently, the new larger steel billboard structure must be considered a new sign erected without a valid permit and in violation of current spacing requirements. The Department of Transportation was, therefore, warranted in terminating the plaintiff’s billboard permit number and in ordering that the new sign be removed.

City of Murfreesboro v. Zol Hooper - M2006-02050-COA-R3-CV View
Rutherford County - This is a challenge to a speeding ticket. A city police officer issued a speeding ticket to the defendant for traveling at a speed in excess of the posted speed limit of forty miles per hour. The traffic court found the defendant guilty of the offense and ordered him to pay a fine and costs. The defendant appealed his conviction for the traffic offense to the circuit court below. In the circuit court, defendant argued that his speeding ticket was void because the posted speed limit was invalid, based on the fact that the City had failed to reevaluate the appropriate speed limit for that portion of the street. The trial court rejected that argument, concluding that the City’s failure to reevaluate the speed limit on the road in question did not invalidate the posted speed limit. Thus, the trial court affirmed the defendant’s conviction for violation of the speed limit. The defendant now appeals. We affirm.

Jonathan N. Crockett v. Melinda J. Crockett - M2005-01788-COA-R3-CV View
Robertson County - This appeal involves the parenting plan for a nine-year-old child with Attention Deficit Hyperactivity Disorder and Tourette’s Syndrome. The mother was designated the primary residential parent when the parties were divorced in 2002 in the Chancery Court for Robertson County. Six months later, the father filed a petition requesting to be designated as the primary residential parent because the mother had been charged with embezzling from her employer and because of the parties’ different approaches to their son’s medical conditions. Following a bench trial, the trial court determined that a material change in circumstances had occurred and that designating the father as the primary residential parent was in the child’s best interests. On this appeal, the mother insists that the trial court erred by finding a material change in circumstances and by designating the father as the primary residential parent. While we have concluded that the trial court properly found that a material change in circumstances had occurred, we have determined that the record does not support the trial court’s conclusion that designating the father as the primary residential parent is in the child’s best interests.

Richard Coburn Mercer vs. Marilyn Lucretia Hadley - E2006-00900-COA-R3-CV View
Hamilton County - The appellant, pro se, has filed a “Motion to Amend Judgment to Include Interest” which we construe as a petition for rehearing pursuant to Tenn. R. App. P. 39. She seeks an award of interest on the arrearage found by us in our opinion entered June 20, 2007. She relies upon Tenn. R. App. P. 41, which provides, in part, as follows:

If a judgment is modified or reversed with a direction that a judgment for money be entered in the trial court, the mandate shall contain instructions with respect to allowance of interest.

We find merit in the appellant’s motion.

Duke Bowers Clement v. Janet Leigh Traylor Clement - W2006-00691-COA-R3-CV View
Shelby County - This is the second appeal of a divorce case. In the first appeal, this Court determined that the trial court erred in the valuation and distribution of the parties’ marital residence, and concluded that the equity in the marital residence should be divided equally between the parties. The cause was remanded to the trial court to consider a method of payment. Before the matter was considered by the trial court on remand, the parties agreed to sell the property. After the property was sold, they divided the proceeds equally. The wife then filed a petition in the trial court disputing the amount she received. She also sought post-judgment interest from the date of the final divorce decree. The trial court denied the wife’s petition. The wife now appeals for a second time. We affirm.

MBNA America, N.A. vs. Michael J. Darocha - E2006-02000-COA-R3-CV View
Johnson County - This case arises from the grant of summary judgment in favor of Appellee/Bank on an award made by an arbitrator. Defendant/Appellant defaulted on his credit card payments and Bank instigated arbitration proceedings against Appellant pursuant to the Bank’s standard credit card agreement. The arbitrator found in favor of Bank. Bank filed a motion for summary judgment in the Circuit Court at Johnson County, Tennessee seeking a judgment on the arbitrator’s award. Finding no dispute of material fact and, under the authority outlined in the Uniform Arbitration Act, T.C.A. § 29-5-301 et seq., the trial court granted summary judgment in favor of Bank. Appellant appeals. We affirm.

Rosemary Carter vs.John Ralph Bell, et al - E2006-02671-COA-R3-CV View
Anderson County - This personal injury case arose after a licensed pharmacist initiated a romantic relationship with the plaintiff, one of his customers. The pharmacist assured the plaintiff that he was not married, but this was not true. On one occasion, when the plaintiff was at his house, the pharmacist’s wife came home unexpectedly, discovered the plaintiff reclining on the guest bed, and assaulted her by repeatedly beating her head against the floor. The plaintiff sued the pharmacist and his wife for damages. A jury awarded the plaintiff compensatory damages for injuries and medical expenses she sustained as a result of the assault. On appeal, the pharmacist contends that he owed the plaintiff no duty of care, that he breached no duty, and that the plaintiff failed to establish that her expenses and condition were caused by the actions of his wife. We affirm the judgment of the trial court based upon the jury’s verdict because we determine that the pharmacist owed the plaintiff a duty of ordinary care as the owner or occupier of premises, that there was material evidence that the pharmacist breached this duty, and that there was material evidence that the negligence of the pharmacist and the actions of his wife caused the expenses and injuries for which the plaintiff was awarded compensation.

Curtis N. Robinson, et al. v. Baptist Memorial Hospital-Lauderdale - W2006-01404-COA-R3-CV View
Lauderdale County - This appeal arises from a medical negligence case in which a jury verdict was entered in favor of Plaintiffs/Appellees and against Defendant/Appellant Hospital. The Hospital appeals on numerous grounds including: (1) whether the trial court erred in allowing certain evidence in alleged contravention of Tenn. R. Civ. P. 26.05 and 37.03, (2) whether the trial court erred in not granting the Hospital’s motion for new trial on the grounds of alleged inappropriate and inflammatory comments and arguments by opposing counsel; and (3) whether there is material evidence to support the jury’s verdict. Finding no error, we affirm.

State vs. Fred Smith - W2006-02504-CCA-R3-HC View
Lake County - The petitioner, Fred E. Smith, appeals from the circuit court’s summary dismissal of his pro se petition for writ of habeas corpus. Following our review of the record and applicable law, we affirm the dismissal of the petition.

James H. Irwin v. Tennessee Department of Correction - M2007-00188-COA-R3-CV View
Wayne County - This case involves a petition for writ of certiorari filed by a state inmate. A prison disciplinary board found the inmate petitioner guilty of conspiring to violate state law. The inmate then filed a petition for common-law writ of certiorari, seeking judicial review of the disciplinary proceedings on several grounds. The Department did not oppose the granting of the writ and filed the administrative record for the trial court’s review. Based upon this record, the trial court dismissed the inmate’s claims. The inmate now appeals. We dismiss this appeal for lack of appellate jurisdiction, finding that the order entered by the trial court was not a final and appealable judgment.

Office of The Attorney General, Consumer Advocate and Protection Division v. Tennessee Regulatory Authority - M2004-01484-COA-R12-CV View
This appeal is a continuation of a dispute between the Tennessee Regulatory Authority and the Consumer Advocate and Protection Division of the Office of the Attorney General regarding the procedure used by the Authority to approve certain tariffs filed by BellSouth Telecommunications, Inc. without convening a contested case hearing. While an appeal from the Authority’s denial of a contested case hearing with regard to BellSouth’s first tariff was pending, BellSouth filed a second, substantially similar tariff. The Authority denied the Division’s request to convene a contested case hearing regarding the second tariff based on its earlier refusal to convene a contested case hearing regarding the first tariff. The Division appealed. The Authority suggests that the appeal is moot in light of this court’s decision vacating the Authority’s approval of the first tariff. We have determined that this appeal should not be dismissed for mootness. We have also determined that the Authority erred by basing its decision to deny the Division’s request for a contested case hearing regarding the second tariff on its earlier decision to decline a contested case hearing with regard to the first tariff. Our invalidation of the process the Authority used to approve the first tariff prevents the Authority from using the same process in future cases.

JP Morgan Chase Bank as Trustee v. Franklin National Bank and J. Timothy Street, Successor Trustee - M2005-02088-COA-R3-CV View
Williamson County - This appeal stems from a dispute between two banks regarding the plaintiff bank’s liability for discretionary costs after voluntarily dismissing the complaint it had filed against the defendant bank in the Chancery Court for Williamson County. Following the entry of the voluntary dismissal, the defendant bank, invoking Tenn. R. Civ. P. 41.04 and 54.04, requested the trial court to award its attorney’s fees and court reporter expenses as discretionary costs. The trial court awarded the defendant bank $25,972.50 in discretionary costs, including $25,497.50 in attorney’s fees and $475.00 in court reporter expenses. On this appeal, the plaintiff bank takes issue with the award of discretionary costs and requests that this court declare that the defendant bank violated Tenn. R. Civ. P. 11 by requesting these costs. We have determined that the trial court erred by awarding the defendant bank its attorney’s fees as discretionary costs but did not abuse its discretion in awarding court reporter expenses. We also decline to consider whether the defendant bank’s conduct violated Tenn. R. Civ. P. 11.

Alexander & Shankle, Inc. v. Nashville Metro Gov't - M2006-01168-COA-R3-CV View
Davidson County - This is a contract dispute regarding the construction of two schools in Davidson County, Tennessee. The trial court granted the Metropolitan Government of Nashville and Davidson County (Metro) partial summary judgment, holding that the contractor, Alexander & Shankle, Inc., (A&S), was in default for breach of a “time of the essence” provision contained in the contract between the parties. We find that there are genuine issues of material fact relating to this issue, and so we reverse the ruling of the trial court.

RONALD M. FLOYD, et al. v. PRIME SUCCESSION OF TN, et al. - No. E2006-01085-COA-R9-CV View
Bradley County - This lawsuit was filed by the husband and children of Gail Lavan Floyd, who died in March 2000. T. Ray Brent Marsh ("Marsh") and the company managed by him, Tri-State Crematory, Inc. ("Tri-State"), are the only remaining defendants. The instant case is one of many civil actions filed against Marsh and Tri-State following the discovery of over 300 bodies on the company’s premises. The bodies were to have been cremated, but were not. Criminal charges were brought against Marsh in Georgia and Tennessee. He pleaded guilty to many of the charges. Following Marsh’s sentencing, he was noticed, for the second time, to give a deposition in the instant action. At an earlier deposition, he had invoked his Fifth Amendment privilege against self incrimination. As to the present notice, the trial court concluded that Marsh could no longer invoke his Fifth Amendment privilege because, in the court’s judgment, he is no longer facing criminal prosecution. The court ordered Marsh to give a second deposition and further ordered that he could not refuse to answer any question posed to him at the deposition if his refusal was predicated upon the Fifth Amendment. We granted Marsh’s Tenn. R. App. P. 9 application for an interlocutory appeal. We affirm in part and vacate in part.

Cases posted the week of 08/06/2007
Michael Delaney Galligan v. Linda Medders Galligan - M2006-00833-COA-R3-CV View
Warren County - This is the second appeal of a domestic relations case. On remand, the trial court divided the marital assets equally; declined to award the wife attorney’s fees and prejudgment interest; and denied the husband’s Rule 60 motion based upon wife’s concealment of financial information. On appeal, the husband asserts that the short duration of their marriage dictates an award of all marital property to him and additionally challenges the trial court’s denial of his Rule 60 motion. The wife, on the other hand, asserts she is entitled to prejudgment interest and attorney’s fees incurred at trial and on appeal. We affirm.

In Re: Estate of Cornelius Theodore Ridley, Carolyn Ridley v. William Keith Ridley - M2006-01109-COA-R3-CV View
Davidson County - This appeal involves the construction of a will and imposition of attorney’s fees. The Probate Court found that the language of the will gave the Decedent’s second wife a life estate in the marital home with a one-half remainder to his stepdaughter. For the reasons stated herein we find that the language of the will does not support such a construction, and we reverse. The attorney’s fees will have to be reconsidered in light of our reversal on the will construction issue.

Tonya L. Merrick v. Metropolitan Government of Nashville and Davidson County - M2006-01169-COA-R3-CV View
(Separate dissenting opinion by Clement, J.) - View
Davidson County - This appeal involves a motor vehicle accident between a vehicle driven by Appellant and a Metropolitan Nashville school bus. The case was tried non-jury, and the trial court, based primarily upon the testimony of an alleged eye witness, decided the case in favor of Defendant. Finding the evidence of the alleged eye witness to be inherently improbable, we reverse the action of the trial court and remand the case for a new trial.

Charles Farmer v. David Hersh - W2006-01937-COA-R3-CV View
Madison County - This is a defamation case. The defendant owned a minor league baseball team which played for the City of Jackson, Tennessee. In 2002, the plaintiff, the mayor of Jackson, was negotiating with the defendant team owners to purchase the baseball team on behalf of the city. Soon the plaintiff mayor and the defendant owner became embroiled in a lawsuit related to the sale of the team. Two years later, the plaintiff mayor filed the instant lawsuit, alleging that the defendant team owner had defamed him by telling the media that the mayor was attempting to “steal” the team. After some discovery, the defendant team owner filed a motion to dismiss for failure to state a claim. At the hearing on the motion, the trial court noted that matters outside the complaint had been submitted to the court, and it therefore treated the motion as one for summary judgment. The trial court granted the motion, concluding that the statement allegedly made by the defendant team owner was not defamatory, and that the plaintiff mayor had not presented sufficient proof of damages. The plaintiff mayor now appeals. We affirm, concluding that the statement allegedly made is mere hyperbole and not defamatory as a matter of law.

Thomas E. Bright, Jr. v. MMS Knoxville, Inc. d/b/a MED of Tennessee - M2005-02668-COA-R3-CV View
Davidson County - This appeal involves a retaliatory discharge claim. A medical supply company terminated the employment of a delivery technician following complaints from a customer that the technician had caused her to be evicted from an assisted living facility. The technician filed suit in the Circuit Court for Davidson County, asserting both common-law and statutory claims for retaliatory discharge. The trial court granted the employer’s motion for directed verdict at the close of the technician’s case-in-chief, and the technician appealed. We have determined that the technician’s actions did not constitute the reporting of illegal activities for the purpose of a common-law or statutory retaliatory discharge claim.

Tennessee Department of Children's Services vs. B.J.N. - E2006-02180-COA-R3-PT View
Campbell County - The State of Tennessee Department of Children’s Services (“the State”) filed a petition seeking to terminate the parental rights of B.J.N. (“Mother”) to the minor child R.S.N. (“the Child”). The Juvenile Court entered an order terminating Mother’s parental rights to the Child based upon the grounds found in Tenn. Code Ann. §§ 36-1-113(g)(2) and (g)(3). Mother appeals to this Court. We affirm the termination of Mother’s parental rights to the Child under Tenn. Code Ann. § 36-1-113(g)(3).

Charles D. Mills vs. CSX Transportation, Inc. - E2006-01933-COA-R3-CV View
Monroe County- Charles D. Mills (“Plaintiff”) filed this negligence action pursuant to the Federal Employers Liability Act against his employer, CSX Transportation, Inc. (“Defendant”), after Plaintiff fell down some concrete steps while attending a safety certification meeting held at a hotel. Defendant filed a motion for summary judgment essentially claiming that Plaintiff would be unable to prove at trial that Defendant was negligent or that he was in the scope of his employment at the time of the accident. The Trial Court granted Defendant’s motion for summary judgment. Because Defendant failed to affirmatively negate an essential element of Plaintiff’s claim or to conclusively establish an affirmative defense, Plaintiff’s burden to establish the existence of a genuine issue of material fact never was triggered. The judgment of the Trial Court is, therefore, vacated.

Jerry Allen McFarland v. Pat Nichols (Joyner) McFarland - M2005-01260-COA-R3-CV View
Wilson County - This appeal involves the division of a marital estate following the dissolution of a fifteen-year marriage. Both parties sought a divorce in the Chancery Court for Wilson County. Following a bench trial, the trial court granted the wife a divorce and then classified and divided the parties’ marital estate. On this appeal, the wife takes issue with the trial court’s conclusion that she did not contribute substantially to the preservation or appreciation of the husband’s separate property. The husband takes issue with the trial court’s calculation of the parties’ interests in the wife’s anticipated National Guard pension. We conclude that the trial court correctly determined that the wife did not substantially contribute to the preservation or appreciation of the husband’s separate property. Additionally, we find that the trial court did not err by deciding to divide the wife’s anticipated National Guard retirement benefits using the deferred distribution method. However, we find that the trial court erred in its application of the deferred distribution method by failing to allow the husband to share in any future increases in the retirement benefit and by failing to take into account that the wife’s continued service in the National Guard after the divorce will reduce the husband’s share of the retirement benefit when she begins drawing it.

Melvin Perry v. Bruce Westbrooks, et al. - W2006-02747-COA-R3-CV View
Lauderdale County - Appellant challenges trial court’s order dismissing Appellant’s Petition for Writ of Certiorari. The record reveals that the court reached its decision in a lawful manner. We affirm.

Randal Louis Murdaugh v. Svetlana Nicolaevna Shketik (Murdaugh) - W2006-01212-COA-R3-CV View
Madison County - In this divorce case, the husband filed for divorce approximately five months after entering into marriage with the wife, an immigrant who had come to the United States from Latvia on a religious work visa. The husband resided in Madison County, Tennessee, and the wife and her son spent a majority of the duration of the marriage living in Cincinnati, Ohio, where the wife worked for a church and her son attended school. The chancellor awarded the wife temporary support and held a bench trial. The chancellor granted the parties a divorce based upon stipulated grounds and awarded the wife 25% of the value of the parties’ marital property, as well as attorney’s fees. We affirm.

Barbara Rippey Whitley v. James M. Rippey, Jr., as executor of the Estate of Robert English Rippey - M2006-01436-COA-R3-CV View
Maury County - This is a will contest. The decedent was an 83-year-old man who had no natural born children. In 1968, the decedent adopted his first wife&rsq