COURT OF APPEALS OPINIONS

Pun Wun Chan, D/B/A #1 China Buffett v. State of Tennessee, Knox County, and City of Knoxville
E2005-01391-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Harold Wimberly

In this inverse condemnation action, the jury returned a verdict for the plaintiff which was approved by the Trial Court after a slight reduction in the amount. The State appealed and we affirm.

Kenneth T. Whalum, Jr., et al. v. Pamela Harris Marshall, et al.
W2005-01823-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Walter L. Evans

After delinquent property taxes accumulated on certain real property, the city and county pursued a tax sale of the subject property. The defendant purchased the property at the tax sale and received a deed from the clerk of the chancery court. After the one-year redemption period expired, the plaintiffs filed suit against various individuals and entities, including the present owner of the property and the county, seeking to rescind the sale. Specifically, the plaintiffs alleged that they were not provided with notice of the sale. The county subsequently conceded that it did not provide notice of the sale to the plaintiffs. The plaintiffs filed a motion for summary judgment. The present owner did not file an answer to the complaint and did not respond to the motion for summary judgment.  After the trial court granted summary judgment to the plaintiffs, the present owner of the property filed a motion pursuant to Tennessee Rule of Civil Procedure 59.04 asking the trial court to set aside the order granting summary judgment. In her motion, the present owner sought to introduce evidence related to her claim that she was entitled to reimbursement for the approximately $68,000 spent improving the property. The trial court denied the motion, and the present owner appealed to this Court. We affirm the decisions of the chancery court in all respects. Moreover, we find this appeal to be so devoid of merit as to warrant the imposition of damages for the filing of a frivolous
appeal.

In Re: Estate of James W. Ford, M.D.
W2005-01194-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Robert S. Benham

This is the second appeal of this probate case in which this Court is asked to determine whether the Appellant’s claim against the decedent’s estate should be treated as a verified claim under the Claims Act, T.C.A. §30-2-306 et seq., as the trial court found, and controlled by the authorities therein, and then to determine the priority of Appellant’s claim as against the Internal Revenue Service/Appellee’s claim against the estate for decedent’s unpaid taxes. We find that Appellant’s claim is a verified claim against the estate and, as such, is subject to the Claims Act.  Pursuant to both the Claims Act, T.C.A. §30-2-317, and the Federal Insolvency Act 31 U.S.C. §3713, the IRS’s claim is prime. Affirmed.

In Re: Estate of Clifford Franklin Baker, et al. v. Lee King, et al.
W2005-00847-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Stephen Beal

This appeal involves a challenge to the validity of an antenuptial agreement. Executors under the decedent’s Will filed a petition in the General Sessions Court of Madison County, Probate Division, to have Will admitted to probate. Decedent’s wife then filed a notice and petition for elective share, for specific property, year’s support, homestead, and expedited hearing. The Executors, also beneficiaries under decedent’s Will, opposed the petition based on an antenuptial agreement the wife had entered into with the decedent prior to their marriage, and the wife challenged the enforceability of the antenuptial agreement. Following a hearing, the court upheld the validity of the antenuptial agreement, finding that the wife entered into the agreement knowledgeably and that the doctrine of equitable estoppel prohibited the wife from contesting the antenuptial agreement. Wife appeals. The dispositive question before this Court is whether the evidence preponderates against the trial court’s finding that the antenuptial agreement was valid and enforceable. We conclude that the record and applicable law do not support the trial court’s decision to enforce the antenuptial agreement. We reverse and remand this case to the probate court for further proceedings consistent with this Opinion.

Alexander C. Wells v. James Hefner, et al.
M2004-02313-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Barbara N. Haynes

Plaintiff appeals the summary dismissal of his complaint for malicious prosecution against three officials at Tennessee State University. A former student of Plaintiff, a professor at Tennessee State University, filed a complaint with the Affirmative Action Officer at TSU, alleging sexual harassment by Plaintiff in the fall of 1990. Following a series of administrative proceedings within the university, Plaintiff was found to have violated its policy on sexual harassment and its standards of professional conduct and responsibility for which his employment was terminated. Plaintiff then filed a Petition for Review with the Chancery Court and successfully appealed his termination. As a consequence, his employment was reinstated. Thereafter, Plaintiff filed this action against three university officials who participated in the proceedings that led to his termination, asserting they lacked probable cause. We have determined the defendants never brought a lawsuit or judicial proceeding against Plaintiff, an essential element to a cause of action for malicious prosecution, and thus affirm the summary dismissal of the complaint.

William H. Stitts v. Clifford K. McGown, Jr.
E2005-02496-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Thomas J. Seeley, Jr.

The issue presented in this case is whether the trial court erred in dismissing with prejudice, on its own motion, a lawsuit alleging legal malpractice in which a summons was issued but never served on the defendant, and not reissued within one year. After careful review, we hold that the trial court did not err in dismissing the complaint. We affirm the judgment of the trial court.

Sharon Lemons, et al. v. Rhonda Cloer, et al. AND Jimmy Darrell Silvers, et al. v. Rhonda Cloer, et al.
E2004-02842-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John B. Hagler

These appeals find their genesis in a collision between a Georgia school bus and a CSX freight train in Polk County, Tennessee, just north of the Georgia state line. As a result of the collision, three children were killed and four others on the bus were injured. All of the children were minors. Three wrongful death actions and three personal injury actions – as well as other actions not involved in this appeal – were filed in the trial court. The cases before us named as defendants, Rhonda Cloer, the driver of the bus; the Murray County [Georgia] School District (“the School District”); and other entities. Regarding two of the wrongful death claims against the School District, the trial court held that the claims were barred by the personal injury one-year statute of limitations. As to all of the claims arising out of the collision, the trial court held that the School District’s liability could not exceed $300,000, the total amount of the coverage for one incident under the School District’s vehicle liability policy. We affirm.

Donnie Covey, et al. v. City of East Ridge
E2005-01510-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor W. Frank Brown, III

Plaintiffs applied to rezone their 1.74 acre tract of land located at 6815 Ringgold Road from R-1 Residential District to C-2 General Commercial District. The Chattanooga-Hamilton County Regional Planning Commission recommended that the Mayor and City Council of East Ridge deny the petition for rezoning. After a hearing, the City Council voted to deny the application. Plaintiffs filed a complaint in the Chancery Court for Hamilton County, asserting that the City Council erred by declining to grant the rezoning request. Following a hearing, the trial court upheld the decision of the City Council, finding that the City Council had not acted arbitrarily or capriciously in rejecting the rezoning application. After careful review, we affirm the judgment of the trial court.

James Torrence, et al. v. The Higgins Family Limited Partnership, et al.
E2005-1549-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jerri S. Bryant

James Torrence and J.T. Lemons (“the plaintiffs”) were lessees of a four-acre tract of land in Polk County. During the original term of the lease, their lessor transferred acreage, which includes the
four acres under lease, to a family partnership, The Higgins Family Limited Partnership (“the Higgins Family”). During an extended term of the plaintiffs’ lease, the Higgins Family, without the consent or knowledge of the plaintiffs, granted Hunter Properties Inc., an option to purchase a 370-acre tract – which includes the four acres – for $1,350,000. Upon subsequent written notice of the option to the plaintiffs by the Higgins Family, the lessees attempted to exercise a right of first refusal set forth in their lease. The right of first refusal provides that “[s]hould the Landlord, during the lease term, or any extended term, elect to sell all or any portion of the Leased Property, the Tenant shall have the right of first refusal to meet any bona fide offer of sale on the same terms and conditions of such offer.” The plaintiffs assert that the right of first refusal extends to the entire 370-acre tract. The Higgins Family refused to sell the lessees the property and this suit followed. The trial court held that the lessees had properly exercised their right of first refusal and were entitled to purchase the property for $1,350,000. Hunter Properties filed a notice of appeal and all parties raise issues. We affirm.

Tonya Decker v. William Buster Nance
E2005-2248-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Michael A. Davis

This appeal involves a default judgment in a paternity action. The trial court granted a default judgment against the defendant even though the defendant had not received his five days’ notice as required by Tenn. R. Civ. P. 55. Citing other grounds, the defendant moved to set aside the judgment, but the trial court denied the motion. Upon review of the record, it is our determination that the default judgment must be vacated and this case remanded for further proceedings.

Pamela Kaye Smith v. William Michael Fair
W2005-00455-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Rita L. Stotts

The parties were divorced in October of 1999. The final decree of divorce incorporated the parties’ marital dissolution agreement which provided a formula for establishing the father’s child support obligation. The father subsequently filed a petition to modify his child support obligation, which culminated in the entry of a consent order incorporating a permanent parenting plan utilizing essentially the same formula for establishing the father’s child support obligation found in the marital dissolution agreement. Shortly thereafter, father retained new counsel and filed another petition to modify his child support obligation seeking to have it set at $2,100 a month pursuant to the child support guidelines. In response, the mother filed a motion to dismiss the petition for, among other reasons, failure to state a claim upon which relief could be granted. At a hearing on the mother’s motion, the father presented several exhibits which were considered by the trial court, thereby converting the motion to dismiss into a motion for summary judgment. The trial court dismissed the father’s petition for, among other reasons, failure to state a claim for which relief could be granted.  The father timely filed an appeal to this Court. On appeal, the mother requests her attorney’s fees incurred in defending this appeal. We affirm the trial court’s decision, and we remand this case to the trial court for the entry of an order awarding the mother her reasonable attorney’s fees.

Broderick Autry v. Charles Boston, Jr., et al.
01030-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Samuel H. Payne

Broderick Autry (“Plaintiff”) sued Charles Boston, Jr. and Corrine Boston (“Defendants”) claiming that Defendants had contracted to sell Plaintiff real property located at 2512 Ocoee Street in Chattanooga, Tennessee (“the Property”) and had breached the contract. Defendants raised, among other things, a statute of frauds defense under Tenn. Code Ann. § 29-2-101. After a bench trial, the Trial Court held, inter alia, that Plaintiff had a valid contract for the purchase of the Property, and ordered Defendants to execute and deliver a warranty deed for the Property to Plaintiff within thirty days of the payment of the balance due by Plaintiff. Defendants appeal to this Court. We affirm by holding that although the writing produced as evidence of the contract does not satisfy the statute of frauds, Defendants are estopped from denying the existence and enforceability of the contract.

Willie V. Melvin, III v. Anita Louise Johnson-Melvin
M2004-02106-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Tom E. Gray

Dr. Johnson (“the wife”) and Dr. Melvin (“the husband”) were married in October 1988 while the wife was pregnant with the parties’ first child. That child born in 1989 and the second child born in 1991 are the only minor children of this marriage. Husband filed a complaint for divorce, claiming inappropriate marital conduct. The wife counterclaimed in that action. The actions of the trial court from which the wife appeals, and with which both parties raise issues on appeal, include the Decree of Divorce issued August 6, 2004; the interlocutory order and memorandum entered July 28, 2004; and three post-trial orders and one memorandum. Issues raised on appeal concern distribution of marital property, award of alimony and child support, and refusal to award the wife attorney fees and costs. We affirm the judgment of the trial court in all respects.

Willie V. Melvin, III v. Anita Louise Johnson-Melvin - Concurring
M2004-02106-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Tom E. Gray

I concur with the results of the court’s opinion in this case. However, I write separately to emphasize a point regarding the valuation of marital property that is only briefly addressed in the court’s opinion.

In Re: S.L.D.
E2005-01330-COA-R3-PT
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor John F. Weaver

In this case, the trial court terminated a mother’s parental rights to her biological child upon grounds that she committed severe child abuse and that termination was in the child's best interest. The mother asserts that clear and convincing evidence was not presented that she committed severe abuse or that termination was in the best interest of the child. Mother argues that the judgment of the trial court should be vacated and the case remanded for new trial because of the unavailability of either a transcript of the proceedings below or a statement of the evidence. We vacate the order of the trial court as to termination of the parental rights of the mother and remand for new trial because the record provided this Court is insufficient to allow proper appellate review.

Richard S. Parker v. Margaret Mary Brennan
M2005-01376-COA-R3-CV
Authoring Judge: Judge Donald P. Harris, Sr.
Trial Court Judge: Judge Barbara N. Haynes

On this appeal, the Appellant challenges the award by the trial court of expenses totaling $2,611.42, for videotaping discovery depositions and other related video services as discretionary costs pursuant to Rule 54.04, Tennessee Rules of Civil Procedure. This amount was awarded in addition to expenses for stenographic transcripts of the same depositions. Finding expenses related to videotaping and video related services not specifically identified as allowable expenses within the rule, we modify the trial court's award to delete those expenses.

In Re J.J.C., D.M.C., and S.J.K. a/k/a K State of Tennessee, Department of Children's Services v. John Calabretta
W2005-01386-COA-R3-PT
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Special Judge Herbert J. Lane

This is a termination of parental rights case. This is the second appeal in this matter. In the first appeal, the trial court had terminated the father’s parental rights based on abandonment for failure to support his two children. On appeal, this Court reversed the termination on that ground, but remanded the case for further proceedings on the ground of persistent conditions. On remand, the trial court conducted further proceedings and determined that clear and convincing evidence established persistent conditions that prevented the children’s safe return to the father. The father now appeals. We affirm, finding that the ground of persistent conditions was established by clear and convincing evidence.

William Anthony Fisher and Shelby Lynn Hatter Fisher v. Jonathan Young
W2005-01018-COA-R3-PT
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor James F. Butler

This a termination of parental rights and adoption case. Before the minor child at issue was born, the biological father was sentenced to ten years imprisonment in a correctional facility. The biological mother and her husband filed a petition to terminate the parental rights of the biological father and permit the mother’s husband to adopt the minor child. The trial court granted the petition.  We affirm, finding grounds for termination established by the father’s confinement to prison for a ten year sentence when the minor child was less than eight years old, and finding clear and convincing evidence to support the trial court’s conclusion that termination was in the best interest of the child.

State ex rel. Paula A. Flowers v. Tennessee Trucking Association Self Insurance Group Trust, et al.
M2004-01980-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Seven members of the Tennessee Trucking Association Self-Insurance Group Trust appeal the post-liquidation assessment against members of the self-insured group to fund a $2.8 million deficit. The self-insured group trust was declared insolvent in 2004 by the Chancery Court, following which the Commissioner of Commerce and Insurance was appointed Liquidator of the Trust. In the capacity of Liquidator, the Commissioner was responsible for administering the Trust, which included making assessments of the members of the Trust to satisfy its financial obligations. The appellants contend the assessment methodology employed by the Liquidator, which modified the proportionate financial obligations of the members, constituted an impermissible modification of the premium structure the members agreed upon. The trial court determined the only proscription upon making assessments was a requirement the methodology be equitable. Finding the methodology utilized by the Liquidator was equitable, the trial court approved the assessments. We affirm.

Saturn Corporation v. Ruth Johnson, Commissioner of Revenue, State of Tennessee
M2004-02067-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Carol L. McCoy

Saturn Corporation appeals the Chancery Court’s entry of summary judgment in the Commissioner’s favor. Saturn filed its action in Chancery Court seeking a refund of a percentage of franchise and excise taxes paid in fiscal year 1999-2000. In this de novo review of the trial court’s judgment, we hold that the exemption claimed does not apply to the taxpayer, that the exemption as applied does not violate the equal protection provisions of state and federal constitutions, and affirm the trial court’s judgment in all respects.

William Ral Cross, Jr. v. Shelby County, Tennessee
W2005-01231-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Rita L. Stotts

Petitioner/Appellee Cross filed a complaint in federal court against Shelby County and Shelby County Deputy Sheriff Bishoff pursuant to 42 U.S.C. § 1983. The federal court awarded Shelby County partial summary judgment and judgment as a matter of law. The action against Deputy Bishoff was heard by a jury, which awarded Mr. Cross damages and legal fees. Mr. Cross then filed a complaint in Shelby County Circuit Court alleging that, under Tennessee Code Annotated § 8-8-302, Shelby County was liable for the amount of damages awarded him in the federal court action.  The trial court awarded Mr. Cross summary judgment, and Shelby County appeals. We reverse and award summary judgment to Shelby County on the grounds of res judicata.

Kevin Millen v. Tennessee Department of Labor and Workforce Development
W2005-02688-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Arnold B. Goldin

The Appellant filed a claim for unemployment benefits which was denied. Appellant petitioned for judicial review in the chancery court and that court affirmed the decision of the Board of Review.  Appellant next appealed to this Court and we affirm the court below.

US LEC of Tennessee, Inc. v. Tennessee Regulatory Authority
M2004-01417-COA-R12-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chairman Sara Kyle

This appeal involves a dispute between two telecommunications services providers in the Chattanooga market. A privately owned provider filed a complaint with the Tennessee Regulatory Authority asserting that a competing provider owned by a municipal electric utility was receiving an illegal cross-subsidy because the electric utility was permitting the provider to use its name without compensation. One of the Authority’s hearing officers conducted a hearing and then filed an initial order concluding that the provider owned by the electric utility was not receiving a crosssubsidy in violation of Tenn. Code Ann. § 7-52-402 (2005). After the initial order became final, the private provider filed a Tenn. R. App. P. 12 petition for review with this court. We have concluded that the provider’s uncompensated use of the electric utility’s name is not a cross-subsidy prohibited by Tenn. Code Ann. § 7-52-402.

Thomas Fain Dalton, v. Linda Faye Dalton
03A01-9606-CV-00201
Authoring Judge: Judge Don T. McMurtry
Trial Court Judge: Judge Earle G. Murphy

In this divorce case, the appellant (wife) has appealed from the final divorce decree and division of marital assets by the Circuit Court for McMinn County.

Charles C. Wiley v. Clarence Williams, et al.
E2005-02518-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

The issues presented in this appeal are whether the trial court erred in dismissing the Plaintiff’s complaint based on the doctrine of prior suit pending, and its determination that the Chancery Court lacked jurisdiction to hear a claim for unliquidated damages for personal injuries. We hold that the doctrine of prior suit pending is not applicable in this case, because Plaintiff’s claims in this case involve neither the same parties nor subject matter identical to that in the prior lawsuit filed in Probate Court, and because the Probate Court would not have had jurisdiction over Plaintiff’s claims filed in Chancery Court, had they been raised there. We further hold that, pursuant to the Supreme Court’s decision in Flowers v. Dyer County, 830 S.W.2d 51 (Tenn. 1992) and its progeny, the Chancery Court erred in dismissing Plaintiff’s claim for unliquidated damages for personal injuries, and we instruct the Chancery Court to transfer this claim to Circuit Court.