COURT OF APPEALS OPINIONS

Lester Mitchell Lawson, III v. Anthony Adams
M2009-02581-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Robert E. Corlew, III

Lester Mitchell Lawson, III ("Plaintiff") filed this wrongful discharge lawsuit against his former employer, Anthony Adams ("Defendant"). Plaintiff claims he was illegally discharged for refusing to remain silent about and refusing to participate in illegal activities. Plaintiff brought both common law and statutory claims. The trial court granted defendant's motion for summary judgment on all claims after finding that the undisputed material facts established that plaintiff failed to report the alleged illegal activity to an entity other than the person engaging in the claimed illegal activity. We affirm the grant of summary judgment to defendant on plaintiff's common law and statutory claims that he was discharged for refusing to remain silent about illegal activities. We vacate the trial court's grant of summary judgment on plaintiff's common law and statutory claims that he was discharged for refusing to participate in illegal activities.

Citizens Choice Home Care Services, Inc. v. United American Health Care Corporation
W2010-00445-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Lorrie K. Ridder

This is an appeal from the grant of summary judgment in favor of Defendant/Appellee. Plaintiff/Appellant filed suit on the basis of Defendant/Appellee's alleged underpayment of fees earned pursuant to a contract between the parties. The trial court found that the contract was not ambiguous as to the applicable fee schedule and that Plaintiff/Appellant's interpretation was incorrect as a matter of law. Discerning no error, we affirm.

William Searle v. Harrah's Entertainment, Inc.
M2009-02045-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Amanda McClendon

This action arises from the alleged harassment of plaintiff by defendant, Harrah's Entertainment, Inc., while attempting to collect on a dishonored check. Plaintiff cashed a check for $500 at Harrah's Metropolis Casino in October 2001. The check was dishonored by plaintiff's bank on the first attempt, but cleared on the second attempt on December 8, 2001. Apparently neither party knew the check had cleared in December, and in January 2002, plaintiff claims he received threatening phone calls and letters to collect on the check. After receiving a threat of criminal prosecution, plaintiff and his wife drove to the casino and paid $525.00 to settle the debt; however, the casino could not produce the original check, only a photocopy. Upon further investigation, plaintiff discovered the check had cleared in December. Plaintiff then filed this action against Harrah's Entertainment, Inc. in the General Sessions Court for Davidson County. After a default judgment was entered, Harrah's filed a petition for writ of certoriari in the Circuit Court asserting that it was not the proper defendant and insufficient service of process. The circuit court granted the petition and set aside the default judgment. Plaintiff then filed an amended complaint asserting claims for negligence, gross negligence, outrageous conduct, and violation of the Fair Debt Collection Practices Act and the Tennessee Consumer Protection Act (TCPA). Following a bench trial, the court found that Harrah's was the proper defendant and ruled in favor of plaintiff on his claims for negligence, the TCPA, and intentional infliction of emotional distress, and awarded plaintiff damages of $5,962.95, which was trebled under the TCPA for a total award of $17,888.85. The court also awarded plaintiff his attorney's fees. Harrah's appeals claiming it was not the proper defendant and it was not properly served. It also challenges the findings of negligence, violation of the TCPA, intentional infliction of emotional distress, and the damages awarded. We have determined that Harrah's waived the issue of insufficient service of process and it is estopped to assert that it is not the proper defendant. We affirm the trial court's findings regarding negligence, violation of the TCPA, and intentional infliction of emotional distress. We find that the trial court erred by including the $5,962.95 award for emotional distress within the amount trebled under the TCPA. Therefore, we remand for the trial court to recalculate the damages awarded under the TCPA and for a determination of the reasonable and necessary attorney's fees plaintiff incurred on appeal.

Pamela Turner v. Tennessee Board of Probation and Parole - Concurring
M2009-01908-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ellen Hobbs Lyle

I fully concur in the decision of the court. I believe it may be useful to further explain my position in this matter.

Pamela Turner v. Tennessee Board of Probation and Parole
M2009-01908-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen Hobbs Lyle

After being denied parole at her first parole hearing, Petitioner, an inmate incarcerated at the Tennessee Prison for Women, filed this Petition for Common Law Writ of Certiorari to challenge the decision by the Board of Probation and Parole to defer reconsideration of parol for six years. Finding that the deferral of parol eligibility for six years was not arbitrary and did not violate Tennessee law, the trial court dismissed Petitioner's Writ of Certiorari. We affirm.

Lewis Fryer vs. Conservatorship of Mary Jo Fryer, et al
E2009-01009-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor W. Frank Brown, III

This appeal involves a dispute regarding unpaid spousal support from Social Security benefits. Mr. Fryer filed a petition against numerous defendants, seeking spousal support owed to him from his deceased wife's Social Security benefits. Serving in the capacity of conservator, the decedent's daughter received her mother's monthly Social Security benefits. After a bench trial, the court determined that the conservator was liable to Mr. Fryer for the unpaid spousal support and entered a judgment against the conservator and Travelers Casualty and Surety Bond. Additionally, the trial court, sua sponte, applied the statute of limitations to reduce the amount of the award to Mr. Fryer. This appeal ensued. We affirm in part, reverse in part, and remand.

Hood Land Trust v Denny Hastings et al.
M2009-02625-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge J. Mark Rogers

The trial court granted the defendants' motion for summary judgment with respect to multiple claims brought by a prospective seller of real property against the prospective buyers. We have concluded that the trial court erred in granting summary judgment for the defendants on the plaintiff's unjust enrichment claim. In all other respects, we affirm the decision of the trial court.

Franklin American Mortgage v. Dream House Mortgage Corporation of Rhode Island, et al. v. Fireman & Associates, LLP, et al.
M2009-01956-COA-R9-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Robbie T. Beal

This appeal involves in personam jurisdiction over an out-of-state defendant. Plaintiff, a Tennessee mortgage company, filed suit against the appellee herein, a Rhode Island mortgage company, after plaintiff allegedly suffered injury from a breach of contract on the part of appellee, stemming from plaintiff's purchase of a loan from appellee in the secondary mortgage market. In the posture of plaintiff, appellee filed a third-party complaint against the Massachusetts lawyer and firm, the appellants herein, who had underwritten the loan that appellee ultimately sold to the Tennessee plaintiff. The lawyer and firm filed a motion in the Tennessee court to dismiss the third-party complaint for lack of personal jurisdiction. The trial court found that Tennessee had personal jurisdiction over the third-party defendant law firm and lawyer, and denied their motion to dismiss. The lawyer and firm appeal. Finding that there are not sufficient contacts with Tennessee, we reverse the trial court's finding of personal jurisdiction, and remand for further proceedings.

Alex Lyon & Sales Managers and Auctioneers, Inc. v. Gregg Boles
M2010-00388-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Robert E. Corlew III

Suit was filed for breach of contract. Plaintiff sought summary judgment, which was denied. A trial on the merits followed and the trial court ruled for the defendant. Plaintiff appeals, seeking review of the denial of summary judgment. Since there was a trial on the merits, we cannot review the denial of the summary judgment in this case. We affirm the trial court.

William C. Killian v. Rebecca McManus Killian
M2010-00238-COA-R3-CV
Authoring Judge: Andy D. Bennett, J.
Trial Court Judge: Howell N. Peoples, Chancellor
Husband petitioned to reduce or terminate his alimony obligation, and the trial court denied his petition and awarded wife attorney fees. Husband argues on appeal that the trial court erred in denying his petition and in awarding wife attorney fees. We affirm the decision of the trial court in all respects.

Kathy Gordon vs. By-Lo Markets, Inc., d/b/a By-Lo- #10 - Concurring
E2009-02436-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Rex Henry Ogle

I concur in the result reached by the majority opinion.

Kathy Gordon vs. By-Lo Markets, Inc., d/b/a By-Lo - #10
E2009-02436-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Rex Henry Ogle

Plaintiff, while delivering pizza to customers in the By-Lo grocery store, slipped and fell. She filed suit against By-Lo, claiming negligence. By-Lo moved for summary judgment and after a hearing on the matter, the trial court entered summary judgment in favor of By-Lo and dismissed the suit. Plaintiff appeals. We affirm.

Larry H. Coleman v. Matthew Kisber, et al.
M2010-00642-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Russell T. Perkins

This case involves a petition for access to certain documents pursuant to the Tennessee Public Records Act, Tenn. Code Ann. _ 10-7-101 et seq. The appellees asserted in the trial court, and on appeal, that the documents are confidential and privileged pursuant to the tax information and tax administration information exceptions found in Tenn. Code Ann. _ 67-1- 1702; pursuant to the "ECD exception" provided in Tenn. Code Ann. _ 4-3-730(c); and also pursuant to the Deliberative Process Privilege. The trial court denied the appellant's petition finding that the ECD exception applied and therefore, held that the documents at issue should remain confidential for five years. The trial court, however, found that the tax information and tax administration information exceptions did not apply and declined to apply a Deliberative Process Privilege. Appellant appealed the trial court's denial of his petition. On appeal, the appellees assert that the trial court erred in not finding the tax information and tax administration information exceptions applicable and in not applying the Deliberative Process Privilege. After reviewing the record, including the withheld documents, we find that the trial court erred in not finding that the tax information and tax administration information exceptions, as provided in Tenn. Code Ann. _ 67-1-1702, applied. Consequently, we affirm the trial court's denial of the appellant's petition but for different reasoning.

Larry H. Coleman v. Matthew Kisber, et al. - Concurring
M2010-00642-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Russell T. Perkins

I concur with nearly all of the majority opinion, but disagree with one aspect of it.  However, I would reach the same result with different reasoning, and so file this separate concurrence.

Rhonda L. (Hall) Greer v. John Bradley Greer
W2009-01587-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor James F. Butler

This is a divorce appeal involving parenting issues. The parties are the parents of three minor children. Prior to trial, the parties went through mediation and arrived at an agreement on many of their issues. The trial court then conducted a trial, taking testimony from the parties on a range of issues, including some that were the subject of the mediated agreement. The divorce decree and the parenting plan entered by the trial court adopted some of the parenting provisions in the mediated agreement, but not others. The father filed a motion to alter or amend this final decree, and a subsequent motion to enforce the parenting plan. The trial court modified the parenting plan in part and issued a final order. The father now appeals. We affirm, holding that the trial court did not abuse its discretion with respect to the number of parenting days allocated to the parties or the decision-making authority on the children's medical decisions.

Brenda Johnson Head v. Michael Allen Head
M2009-01351-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Tom E. Gray

This is a divorce action in which Husband appeals the valuation and division of marital property, and the trial court's awards of alimony, discretionary costs, and attorneys' fees to Wife. The trial court awarded 54 percent of the marital property to Wife and 46 percent to Husband, and awarded Wife alimony in futuro of $6,400 per month until July 2013, at which time the alimony payments will be reduced to $4,400 per month until either party's death or Wife's remarriage. The trial court also awarded Wife discretionary costs and attorneys' fees. We have modified the trial court's valuation of certain items of marital property, which caused a modest decrease in the value of marital property awarded to Husband; however, we affirm the trial court's division of the marital property because our modification of the value of certain property is relatively modest. We affirm the trial court's award of alimony to Wife and the award of attorneys' fees; however, we reverse the award of discretionary costs and remand for a new determination of the costs that may be awarded under Tenn. R. Civ. P. 54.04(2). We deny both parties' requests for the costs of their attorneys' fees incurred on this appeal.

Kerry Jordan v. YMCA of Middle Tennessee, et al.
M2009-02369-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Amanda J. McClendon

A young woman was thrown from a horse at a camp operated by the YMCA of Middle Tennessee, breaking her arm. Unbeknownst to the woman, the same horse had thrown two experienced riders ten days earlier. She filed a suit for negligence against the YMCA and the camp, alleging that their employees and volunteers knew the horse to be dangerous, but that they nonetheless failed to ascertain whether she was sufficiently experienced to handle such an animal. The defendants filed a motion for summary judgment, claiming that they were immune from liability under the provisions of the Equine Activities Act, Tenn. Code Ann. _ 44-20-101 et seq. The trial court granted the motion. We reverse.

Edna N. Zulueta v. Winfred Lassiter, M.D., of The Lassiter Clinic
M2010-00944-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Amanda J. McClendon

Plaintiff appeals the summary dismissal of her medical malpractice complaint against Winifred Lassiter, M.D. Plaintiff alleges that Dr. Lassiter breached her duty of care by negligently performing a physical Fitness for Duty Examination. The trial court summarily dismissed the complaint finding that plaintiff failed to establish the elements of her claim or show a genuine issue of material fact. We affirm.

Rita Gayle Lewis vs. Matthew Wayne Rader
E2010-00724-COA-R3-CV
Authoring Judge: Herschel Pickens Franks, P.J.
Trial Court Judge: Hon. Rex Henry Ogle, Judge
Petitioner filed for an Order of Protection which was ultimately dismissed because petitioner was unable to appear on the date the hearing was set. The Legal Aid Society filed an appeal and raised the issue of taxing costs to petitioner. We reverse the Order taxing costs to petitioner, and remand.

Tennessee Rand, Inc. vs. Automation Industrial Group, LLC
E2009-00116-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor W. Frank Brown, III

In the apt words of the trial court, this case is a "complex business divorce case." The "divorced" and now adverse entities are Tennessee Rand, Inc. ("Rand"), and Automation Industrial Group, LLC ("Automation"), formerly Tennessee Rand Automation, LLC. Rand builds automated robotic equipment such as that used in the automobile industry. Automation was formed by the principals of Rand and some skilled collaborators for the purpose of doing the electrical and computer aspects of Rand's work. The entities fell out of favor with each other when the principals in Rand _ Randy Nunley and Richard Roach_ each a 50% shareholder in Rand, began to have conflicts. Nunley ended up as the sole owner of Rand and Roach acquired Nunley's interest in Automation. Rand initiated this litigation (1) to enjoin Automation from using the name, Tennessee Rand Automation, LLC," (2) to recover the value of assets that Rand had transferred to Automation, and (3) to recover payments of rent and taxes that Rand had made on buildings occupied by Automation. Rand also named as defendants numerous principals and officers of Automation, including Roach. Automation filed a counterclaim seeking an award against Rand for some $6,000,000 in unpaid labor and expenses. In the bench trial that followed, the counterclaim accounted for 20-plus days of the 25-day trial. By the time the trial court announced its decision in a written memorandum opinion, the only parties remaining in the case were Rand and Automation, Roach having previously been dismissed by Rand with prejudice. The trial court found that the names of the entities were confusingly similar and ordered Automation to change its name. This was accomplished and is not an issue on this appeal. The trial court found that Automation was unjustly enriched by Rand's contribution of assets to Automation in the amount of $500,000. Also, the trial court found that Automation had been unjustly enriched in the amount of $162,818.80 by Rand's payment of rent and taxes on buildings used by Automation. Despite the prior dismissal of Roach as a defendant, the trial court held Roach liable to Rand for the rent and tax payments made out of Rand's account. On Automation's counterclaim, the trial court initially awarded it $2,270,759.22 plus prejudgment interest. Both parties filed a motion to alter or amend. The trial court determined that Automation was guilty of fraud in the pursuit of its counterclaim and set aside that part of the judgment with the result that Automation recovered nothing on its counterclaim. Automation and Roach have appealed raising issues as to the counterclaim, the unjust enrichment award against Automation based upon the assets it received from Rand, and the unjust enrichment award against Automation and Roach based on the rent and tax payments. We affirm in part, reverse in part, and remand for further proceedings.

State vs. John Cote and Sarah Cote, In Re: Dr. Sandra Elkins
E2008-02483-CCA-R9-CD
Authoring Judge: Camille R. Mcmullen, J.
Trial Court Judge: Rex Henry Ogle, Judge
John and Sarah Cote, the Defendant-Appellees in this case, stand accused of offenses involving the death of a minor child. Dr. Sandra Elkins, the former 1 Knox County Medical Examiner, performed the autopsy of the victim in the Cotes' case. In a pre-trial motion for discovery, the Cotes requested disclosure of Dr. Elkins's personal medical records; namely, prescription records, drug treatment records, mental health records, University of Tennessee personnel records, an audit report of the East Tennessee Regional Forensic Center, and any records from the Tennessee Board of Medical Examiners. The trial court granted an in camera review of the requested information. Dr. Elkins originally sought an interlocutory appeal of the trial court's order granting the motion for discovery pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Interpreting the Rule 9 appeal as a common law writ of certiorari, this court granted review. Following this court's order accepting the Rule 9 appeal as a writ of certiorari, the Cotes filed a petition for a writ of certiorari with the Tennessee Supreme Court, which was denied. In this appeal, Dr. Elkins and the State raise largely the same issues: (1) whether this appeal should be construed as a petition for a common law writ of certiorari pursuant to Tennessee Code Annotated section 27-8-101 or as a petition for a statutory writ of certiorari pursuant to Tennessee Code Annotated section 27-8-102, or both; and (2) whether the trial court erred by ordering Dr. Elkins's personal records to be disclosed for an in camera inspection. Because the Cotes failed to make a plausible showing that the requested information contained material evidence that was favorable to their defense, we reverse the trial court's order permitting an in camera review of the records and remand the case.

Fred H. Gillham, Sr. v. Scepter, Inc.
M2009-01728-COA-R3-CV
Authoring Judge: Patricia J. Cottrell, P.J., M.S.
Trial Court Judge: Robert E. Burch, Judge
The owner of a parcel which has public road access via an easement appeals the trial court's decision regarding its width. The trial court found that the easement narrows from 60 feet to 30 feet along its course. The deed unambiguously states the easement is 60 feet in width. Reference in the deed to another narrower easement relied on by the trial court has no effect on the access easement width being described. Accordingly, we reverse.

Anthony Murray v. Charlotte Murray
M2009-01576-COA-R3-CV
Authoring Judge: Presiding Patricia J. Cottrell
Trial Court Judge: Chancellor Charles K. Smith

The trial court transferred primary residential placement of an eight year old girl from her mother to her father, finding that the mother's post-divorce conduct, including evidence of drug use and sexual indiscretions, amounted to a material change of circumstances, and that it was in the child's best interest for the father to become her primary residential parent. Because the evidence does not preponderate against the trial court's findings, we affirm.

Natalie Hagan v. Michael Phipps, et al.
M2010-00002-COA-R3-CV
Authoring Judge: Andy D. Bennett, J.
Trial Court Judge: Clara W. Byrd, Judge
This appeal involves claims by a home purchaser against a licensed contractor and a business associate of the unlicensed builder who built the home in question and sold it to the plaintiff. The trial court granted the contractor defendant's motion for summary judgment on all claims against him based upon its conclusions that the unlicensed builder was not the agent of the licensed contractor and that there was no predicate tort for civil conspiracy because the builder intended to use the house for his personal residence. Because we find that there are issues of material fact that must be resolved, we reverse the trial court's grant of summary judgment.

William J. Reinhart v. Geico Insurance
M2009-01989-COA-R3-CV
Authoring Judge: Patricia J. Cottrell, P.J., M.S.
Trial Court Judge: Franklin L. Russell, Judge
The plaintiff owned a 1988 Porsche that was damaged by a collision with a deer. His insurer offered him $6,000 under his policy, after determining that the cost of repair was greater than the cash value of the car. The plaintiff, acting pro se, sued the insurer, and attempted to prove at trial that the auto was worth more than the insurer offered. After the plaintiff rested his case, the insurer moved for a directed verdict because the plaintiff had not introduced the insurance policy into evidence. The trial court granted the motion. The plaintiff argues on appeal that he did not intend to rest his case and that in any event the trial court should have allowed him to reopen his proof so he could introduce the insurance policy. Because there is neither a transcript of the proceedings nor a Rule 24 Statement of the Evidence in the appellate record, we must affirm the trial court.