APPELLATE COURT OPINIONS

The defendants, Buster Crum and wife Patricia L. Crum, have appealed from the judgment of the Trial Court resolving a boundary dispute favorably  to the plaintiffs, George Avery Land and wife, Stella Faye Land. The sole  issue presented to this Court by the defendants/appellants is:  Whether the Chancellor erred by ruling that the common boundary line between the parties’ properties should be surveyed in the course and distance method when there were ample natural objects, landmarks, artificial monuments and lines of adjoining landowners sufficiently describing the common boundary line.

This case is on appeal for the second time. The Tennessee Petroleum Underground Storage Tank Board and J. W. Luna, as Commissioner of the Tennessee Department of Environment and Conservation (hereinafter “Board” or “Appellants”), have appealed from the judgment of the trial court declaring the appellee, Memphis Publishing Company (MPC), eligible for reimbursement from the Tennessee Petroleum Underground Storage Tank Fund (Fund) for remediation expenses incurred as a result of a release from its underground storage tank in August 1987. The trial court’s decision came after remand from the Middle Section of this Court in Memphis Publishing Company v. Tennessee PetroleumUnderground Storage Tank Board, No. 01A01-9305-CH-00202, 1993WL 476292 (Tenn. App. Nov. 19, 1993), perm. app. denied, c.r.o. There, the court confronted the issue of whether MPC had a right to Fund reimbursement under the Tennessee Petroleum Underground Storage Tank Act (Act), T.C.A. § 68-215-101 et seq., as originally enacted. 1 It was argued that MPC had no right to reimbursement because its release occurred prior to the effective date of the Act, July 1, 1988. This Court, speaking through Judge Lewis, held that the Act, as originally enacted, “was intended to cover, from a Fund reimbursement perspective, all releases regardless of date.” Upon remand, the trial court held the court of appeal’s decision “law of the case” and ruled as hereinabove set forth. It is urged on appeal that the decision rendered in Memphis Publishing is not the “law of the case” regarding MPC’s Fund eligibility and that the trial court erred in so holding. For reasons hereinafter stated, we affirm.

This case involves a dispute concerning an easement for ingress and egress. Respondents-Appellants, Gordon Bell and Sarah T. Bell, appeal from the order of the trial court 1 On October 24, 1995, Flora Scruggs transferred the property by quitclaim deed to her husband, John T. Scruggs, Sr. On January 23, 1996, the trial court entered an order substituting John T. Scruggs, Sr. in place of Flora Scruggs as the proper party in interest.However, because the trial court and the parties have continued to refer to the petitioner as Flora Scruggs, we will do likewise. 2 Scruggs actually purchased the land with John T. Scruggs, Sr. In 1982, John T. Scruggs, Sr. conveyed his interest in the land to Flora Scruggs making her the sole owner until she conveyed it back to him in 1995. 3 Old New Cut Road is referred to throughout the record as Old New Cut Road, New Cut Road, Triune, and Salem Road, or old dirt road. In this opinion, we will call the road “Old New Cut Road.” 2 granting an easement by estoppel to Petitioner-Appellee, Flora Pope Scruggs1, without compensation to the Bells.

This is an appeal by defendant, Mary Lou Dicus, from the decision of the chancery court to set aside the court’s order of 18 October 1993 which amended the court’s order of adoption filed on 24 August 1993. The facts  out of which this matter arose are as follows.

This is a divorce case. Defendant, Billy Gene Ray (Husband), appeals from the judgment of the trial court dividing the marital property and awarding alimony to the plaintiff, Linda Gail Ray (Wife).

This appeal involves the lease of a grocery store in Nashville. Following
the landlord’s death, the trust succeeding to the landlord’s interest filed an
unlawful detainer action in the Davidson County General Sessions Court seeking
to recover possession of the property. The tenant appealed the adverse judgment
to the Circuit Court for Davidson County. The circuit court granted the trust’s
motion for summary judgment after finding that the tenant had breached the lease
by failing to make timely and sufficient lease payments. We have determined that
the summary judgment must be reversed because the trust has failed to
demonstrate that it was entitled to a judgment as a matter of law.

I respectfully disagree with my colleagues in this case. I do not believe that the prosecutor's remarks concerning the appellant's intention to plead guilty prejudiced him or deprived him of a fair trial. As pointed out by the majority, Judge v. State1 provides five factors to be considered in assessing the prejudicial effect of improper argument. The five factors are:

1. The conduct complained of viewed in context and in light of the facts and circumstances of the case.
2. The curative measures undertaken by the court and the prosecution.
3. The intent of the prosecutor in making the improper statement.
4. The cumulative effect of the improper conduct and any other errors in the record.
5. The relative strength or weakness of the case.

The Appellant, John W. Gilliam, appeals as of right his conviction and consecutive sentence for one count of the unlawful carrying or possession of a weapon. He argues that the evidence introduced at trial was insufficient to sustain his conviction and that the trial court erred when it ordered his sentence for that crime consecutive to another sentence for rape. We have reviewed the record on appeal and find no merit to the Appellant’s contentions and, therefore, affirm the trial court’s
judgment.

The State of Tennessee appeals as of right the Davidson County Criminal Court’s dismissal of the Appellees’ indictments for possession of cocaine with intent to sell or deliver. The trial court found that the Appellees’ protection against former jeopardy had been violated in that the Appellees had already been punished for their crimes by the State’s seizure of two vehicles used in the drug sale. The State argues on appeal that the civil forfeiture of the Appellees’ vehicles does not amount to punishment pursuant to the double jeopardy clauses of the United States and the Tennessee Constitutions. We agree and reverse the trial court.

Judy Margaret Jackson Virostek (“Wife”) filed suit for divorce in the Chancery Court of Shelby County against James R. Virostek (“Husband”). Following a bench trial the chancellor entered a decree awarding Wife a divorce on the grounds of irreconcilable differences. The divorce decree also incorporated therein by reference a Marital Dissolution Agreement (“MDA”) awarding custody of the parties’ minor child to Wife as well as providing that Husband would pay child support along with rehabilitative alimony to Wife. Thereafter Husband filed a motion to modify the divorce decree relative to the payment of child support and alimony. Wife responded with a counter-petition seeking to have Husband held in contempt for failure to abide by the terms of the MDA. Following a hearing the chancellor denied Husband’s petition to modify relative to the payment of alimony and child support. The court also found Husband in contempt of court for failing to abide by the provisions of the MDA, ordered Husband to disperse funds from the trust account of the parties’ minor son to satisfy an outstanding tuition balance at the son’s private school and ordered Husband to pay Wife’s attorney fees, approximating $15,000.00.

Plaintiffs Erica Rebecca Hurd, deceased, by and through her parents and next friends, Charles and Virginia Hurd, and Cortney Deshaun Ragland, a minor, by and through his next friend, Wanda Kay Grimes, appeal the trial court’s order dismissing their wrongful death actions against Defendants/Appellees Madison County and David Woolfork, Madison County’s Sheriff. We affirm.

This appeal involves a motion to set aside an order modifying child custody. Defendant, Gary Thomas Moore (Father), appeals the trial court’s order granting the Motion to Dismiss filed by plaintiff, Beverly Dianne Privette Moore (Mother), and denying his Motion for Relief Pursuant to Tenn.R.Civ.P. 60.02.

Plaintiff Krisinda Bowers, a minor, by next friends Tammy K. Bowers and Steve Bowers (Krisinda’s parents), appeals the trial court’s order entering summary judgment in favor of Defendants/Appellees Stephen Hammond, The Jackson Clinic Professional Association, and Jackson-Madison County General Hospital. In dismissing the complaint, the trial court ruled that Krisinda’s action against the Defendants was barred by the threeyear statute of repose applicable to medical malpractice actions and, further, that Krisinda’s action against the Hospital was barred by her failure to comply with the statutory notice requirements formerly applicable to actions against governmental entities. We affirm in part and reverse in part.

This is an interlocutory appeal by appellants, Charles R. and Teresa Noland Browder, from the trial court’s denial of a motion seeking to amend their complaint to name an additional party defendant pursuant to T.C.A. § 20-1-119. The statute was enacted in response to the supreme court’s decision in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), which abolished the doctrine of contributory negligence in Tennessee and adopted principles of comparative fault. The statute allots a plaintiff in cases of comparative fault additional time beyond the normal running of the statute of limitations within which to join a previously unnamed defendant by either amendment of the complaint or institution of a separate action. The issue presented here is whether the statute as enacted contemplates the joinder of a third party defendant whose liability, if any, is vicarious only.