COURT OF APPEALS OPINIONS

James W. Clark v. Jim Rose
W2004-02744-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Martha B. Brasfield

Petitioner/Appellant is an inmate in the custody of the Tennessee Department of Correction. This is the second appeal before this Court arising from the Appellant’s filing of the underlying pro se petition for common law writ of certiorari, seeking review of the procedures used by the Tennessee Department of Correction in reaching its decision to keep Appellant confined in administrative segregation. This Court initially remanded the case to the trial court for a determination of whether the inmate’s status was punitive or non-punitive in nature. Upon remand, the trial court determined that his status was non-punitive. Inmate appeals. Finding that the trial court did not abuse its discretion in its determination that inmate’s status was nonpunitive and that, as such, the common law writ of certiorari was not the proper means of challenging his status, we affirm.

State of Tennessee v. Clinton Burns, III
E2004-01632-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Ray L. Jenkins

Clinton Burns, III, (DOB: 06/07/86), a juvenile, was adjudged delinquent by the Knox County Juvenile Court, having been found to have committed the adult offense of aggravated robbery. He appealed to the trial court, which, after a bench trial, affirmed the judgment of the juvenile court.  The defendant appeals, contending that the trial court erred in denying his motion to suppress the testimony of the victim because of the unduly suggestive nature of the procedure used to identify him. He further argues that the trial court erred in refusing to afford him a jury trial. We hold that the trial court properly denied the defendant’s motion to suppress, but that it erred in denying the defendant a jury trial. Accordingly, we affirm the trial court’s order denying the motion to suppress, but reverse the judgment of the trial court affirming the judgment of the juvenile court. Case remanded for a new trial.

Trammell Cemetery Trust, by and through its duly appointed Trustees, Ralph S. Davis, Herman Trammell and Wendell Trammell vs. Ronnie Yancey and wife, Rita Yancey, and Joe Trammell, Jr., and wife, Linda Trammell, et al.
E2004-01732-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Conrad Troutman, Jr.

In this action, the Trial Court granted appellees summary judgment which adjudicated fewer than all of the claims or rights and liability of all of the parties. We dismiss the appeal from that Judgment and remand with instructions.

State of Tennessee, Department of Children's Services, v. AAB, In the Matter of : NAB, (7/27/99)
E2005-00354-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Thomas J. Wright

The Trial Court terminated the mother's parental rights on statutory grounds. On appeal, we affirm.

I & L Investments, LLC et al. v. Cagle's Construction, LLC et al.
E2005-00654-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Lawrence H. Puckett

I & L Investments, LLC ("I & L"), and Wet Willy's Fireworks Supermarkets of Tennessee, Inc. ("Wet Willy's"), sued Cagle's Construction, LLC, and Ed Cagle (collectively the "Cagles"), seeking to enforce restrictive covenants with respect to real property owned by Cagle's Construction, LLC. The trial court granted the defendants summary judgment, holding that the defendants' tender of $100,000 to I & L as liquidated damages pursuant to the provisions of a document entitled "Settlement and Mutual Release" barred the plaintiffs' attempt to enforce the restrictive covenants. The plaintiffs appeal the trial court's judgment, contending that the court erred in failing to enforce the restrictive covenants against the Cagles in of their plan to construct a building on the property for the purpose of selling fireworks. We affirm.

Curtis Meredith v. Cruthchfield Surveys, et al.
E2004-02460-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John D. McAfee

Curtis Meredith sued Crutchfield Surveys and Jerry Crutchfield for damages allegedly sustained by the plaintiff as a result of incorrect surveys prepared by the defendants. The trial court dismissed the plaintiff's suit. He appeals, asserting that the trial court erred in dismissing his complaint. We hold that the plaintiff's suit was not filed within the time specified in the applicable statute of repose and that the plaintiff's generally-worded charge of fraud fails to satisfy the requirements of Tenn. R. Civ. P. 9.02. Accordingly, the judgment of the trial court is affirmed.

State of Tennessee ex rel. William L. Gibbons, District Attorney General v. Club Universe
W2004-02761-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Rita L. Stotts

This is a public nuisance case. The Shelby County district attorney general filed a petition in general sessions court, asking the court to declare a local nightclub a public nuisance and to enjoin the nightclub from further operation. This division of the general sessions court was designated as an environmental court pursuant to Tennessee statute. After a hearing, the environmental court found that the nightclub was a public nuisance and permanently enjoined operation of the nightclub. The nightclub appealed this ruling to both the circuit court, requesting de novo review, and to this Court.  The circuit court held that it did not have jurisdiction to hear the appeal because the appeal would lie with this Court. Because the environmental court had concurrent jurisdiction with the circuit court, we affirm the trial court’s holding that the appeal from environmental court lies in this Court.  Further, we affirm the environmental court’s finding that the nightclub is a public nuisance and the grant of a permanent injunction.

Ricky Gene Campbell v. Wanda Suzanne Campbell
W2004-01608-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Dewey C. Whitenton

This is a child custody dispute involving the appointment of a guardian ad litem. The parties agreed to the appointment of a guardian ad litem. After an investigation, the guardian ad litem recommended that primary custody be awarded to the father. The mother filed a motion to remove the guardian ad litem. The trial court did not do so. After a bench trial, the father was designated the primary residential parent. The mother asserts that the guardian ad litem appointed by the trial court appeared biased towards the father because the guardian ad litem knew the father’s sister. The mother now appeals. We affirm, finding no abuse of discretion in the trial court’s decision not to remove the guardian ad litem.

Mark Smith v. Smith Imports, Inc., et al.
W2004-02022-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge D'Army Bailey

This appeal arises from an order granting summary judgment. The trial court granted summary judgment for one of the defendants and the plaintiff appealed to this Court. After reviewing the record, we dismiss this appeal for lack of subject matter jurisdiction.

Linda M. Ferrell v. Charles R. Ferrell
M2003-02435-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Tom E. Gray

Husband appeals the division of marital property. The trial court found Husband did not bring into the marriage as many assets as Wife did, thus awarding a greater portion of the parties' home to Wife rather than Husband. The trial court further found that Husband had dissipated marital assets when he sold the parties' horse riding rings in violation of the statutory injunction. Husband claims that the division of property was not equal and challenges the finding that he dissipated marital assets while not making the same finding with regard to Wife. We affirm.

Freddie Osborne v. Collier Goodlett
M2003-03118-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Ross H. Hicks

This is a legal malpractice action in which Plaintiff, incarcerated at Turney Center Industrial Prison, appeals the dismissal by the trial court of his action against his court-appointed assistant public defender. Holding the defendant immune from suit under Tennessee Code Annotated section 8-14-209, the trial court dismissed the Complaint. We affirm the action of the trial court.

Marcella A. Chrisman vs. Vance L. Baker, Jr.
E2004-02307-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Russell E. Simmons, Jr.

The Trial Court granted defendant's Motion for Summary Judgment on plaintiff's claim for malpractice. Defendant had represented plaintiff in her representative capacity as conservator, and subsequently as administrator of deceased's estate. The Trial Court held the statute of limitations applied because she knew she had been harmed by defendant's actions more than one year prior to the filing of this action. On appeal, we affirm.

Diane Worley vs. White Tire of Tennessee, Inc. and Gazazbo, L.L.C.
E2004-02025-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Richard E. Ladd

The Trial Court entered Judgment for plaintiff for damages from destruction of road over easement and reformed deed. On appeal, we affirm.

Rem Noble and Brandt Noble, Individually, and d/b/a/ Noble, Inc. v. Tom Pease, Individually, and Corporate Copy, Inc.
W2004-00439-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Arnold B. Goldin

This case is about the sale of a business. The owner of a copy machine business sold the assets of the
business to a competitor. The buyer purchased the company through a promissory note that required monthly payments. After the sale, the seller and the seller’s son became employees of the buyer.  However, while employed by the buyer, the seller continued to deal in copy machines on the side.  The seller voluntarily left employment, and his son was fired. After the buyer learned of the seller’s side dealings in copiers, the buyer stopped making payments on the promissory note. The seller sued the buyer for failing to make the agreed upon payments. The buyer counter-sued for breach of contract. After a trial, the trial court rescinded the purchase agreement. We reverse, finding that rescission was not an appropriate remedy in this case, and remand for a determination of the appropriate damages.

Forrest L. Whaley, et al. v. Jim Ann Perkins, et al.
W2004-02058-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Rita L. Stotts

Purchasers of real property filed suit for breach of contract, negligence per se, intentional misrepresentation, breach of warranty of title, and emotional distress against various parties, alleging that purchasers had purchased the subject property in reliance upon misrepresentations by defendants as to the merchantability of title to the property, only to discover later that the property had been illegally subdivided by defendants. Purchasers contended that they suffered catastrophic pecuniary and other loss as result of alleged misrepresentations, due to extremely limited legal uses that could be made of illegally subdivided parcel. At trial, jury found that each of the defendants had committed intentional misrepresentation, and awarded compensatory damages in the amount of $170,000 and punitive damages in the amount of $5,000. Defendants appeal on numerous grounds. Finding that the trial court erred, we vacate and remand.

Alma Edna Smith v. Don Edward Smith
E2004-02206-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Billy Joe White

Alma Edna Smith ("Wife") sued Don Edward Smith ("Husband") for divorce. The Trial Court entered its Final Decree on July 20, 2004, finding and holding, in part, that both parties were entitled to a divorce and that Wife was to be awarded various items of personal property and the marital home with Husband to assume the indebtedness on this property. Husband received two other parcels of real property and certain items of personal property. Husband appeals the division of property. We modify the Trial Court's property division in this short duration marriage as it concerns the marital home, and we affirm as so modified.

Law Offices of Hugo Harmatz v. Steve Dorrough, et al. - Dissenting
E2004-01987-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Dale C. Workman

I respectfully dissent from the majority’s decision to affirm the Trial Court’s dismissal of this case. I have very little dispute, if any, with the law as set forth in the majority’s Opinion.  Likewise, I have no dispute with the majority’s statement that “[t]he determinative issue, as we perceive it, is whether the action was correctly dismissed for lack of personal jurisdiction over the Defendants.” I, however, respectfully disagree with the majority’s application of the law to the facts of this case.

Law Offices of Hugo Harmatz v. Steve Dorrough, et al.
E2004-01987-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Dale C. Workman

This is an action to enforce a foreign judgment. The trial court granted the Defendants’ motion to dismiss due to lack of personal jurisdiction, subject matter jurisdiction and improper venue. Because the Plaintiff failed to establish a prima facie case that personal jurisdiction over any of the Defendants was proper, we affirm the judgment of the trial court as modified to clarify that the dismissal is without prejudice.

Penny Carol Fletcher Morgan v. Benjamin Loyal Morgan
W2004-02452-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Donna M. Fields

This appeal arises from the trial court’s order designating Mother the primary residential parent of the parties’ minor child and awarding Father less than equal parenting time. We affirm.

Suzan Darvarmanesh v. Mahyar Gharacholou
M2004-00262-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Muriel Robinson

In 2002, Wife filed a complaint for divorce in the circuit court. Following a bench trial, the trial court entered a final decree of divorce and incorporated the court’s permanent parenting plan. The trial court ordered the husband to pay the wife transitional alimony for three years, awarded the parents joint custody of their minor son, and ordered both parents to pay child support. The wife filed an appeal to this Court contesting the trial court’s decision regarding joint custody. The husband filed an appeal to this Court contesting the trial court’s decisions regarding alimony and child support. We reverse the trial court’s decisions regarding alimony, child custody, and child support, and we remand this case tot he trial court for further proceedings consistent with this opinion.

Linda Smallwood, et al. v. Jessica Mann
W2004-02574-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Christy R. Little

This appeal arises from a petition to establish visitation filed by the paternal grandparents on behalf of themselves and the father of the minor child. Following a hearing, the juvenile court entered an order wherein it found that the grandparents had failed to establish the statutory requirements for grandparent visitation. The juvenile court granted the father shared parenting time. However, the order provided that, if the father was unable to exercise his visitation for one full month due to his service in the military, the grandparents were granted the power to exercise the father’s visitation for the last full weekend of any such calendar month. From this order, the mother appeals. For reasons stated herein, we reverse in part, affirm in part, and remand the judgment of the juvenile court.

Ahmed Al-Koshshi d/b/a Lamar Express v. Memphis Alcohol Commission
W2004-02783-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge John R. McCarroll, Jr.

This case involves the denial of a beer permit. The beer board denied the appellant’s application for a beer permit because of the detrimental effect that beer sales would have on the health, safety, and morals of the community. The appellant filed a petition for writ of certiorari, and the trial court upheld the beer board’s decision. The appellant appeals. We reverse.

Edward A. Miller v. Kerry Kelk
E2003-02180-COA-R3-JV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Dwight E. Stokes

On July 10, 1997, Edward A. Miller ("Father") was designated the primary residential parent for the parties minor child. Kerry L. Kelk ("Mother") was not ordered to pay any child support at that time as that order was silent on the issue of child support. No order requiring Mother to pay child support was entered until May 26, 1999. In the May 1999 order, the Trial Court refused to award Father any retroactive child support back to when he was awarded custody. The Trial Court in a later order also held Father responsible for all of the health insurance premiums covering the child from November of 1999 through March of 2002. The Trial Court held each party responsible for one-half of the health insurance premiums from that date on. We conclude that the Trial Court erred in refusing to award retroactive child support to Father for the period from when he was designated the primary residential parent up until May 26, 1999. We further conclude that the Trial Court erred by refusing to hold Mother responsible for all of the child's health insurance premiums.

Claude L. Glass v. George Underwood, Jr.
E2004-02871-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Wheeler A. Rosenbalm

This is a legal malpractice case. The plaintiff sued his former lawyer, claiming the lawyer was negligent in his representation of the plaintiff in a case involving alleged racial discrimination. Upon our finding that the defendant supported his motion for summary judgment with expert proof that he did not violate the applicable standard of care in his representation of the plaintiff and our further finding that the plaintiff submitted no expert proof that the defendant did violate the applicable standard of care, we affirm the judgment of the trial court.

Gordon E. Morrow, Jr. v. Tammy Lynn (Pugh) Morrow
M2003-02448-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Clara W. Byrd

The husband filed for divorce after a marriage of over twenty-three years. The trial court granted the divorce to the wife on the ground of the husband's inappropriate marital conduct and divided the marital property equally between the parties. Because of the property division, and because the wife had more formal education than the husband, the court decided that she was not entitled to any alimony. The wife appealed. We modify the trial court's decree to eliminate the payment to the husband ordered as part of the property division. Because this modification serves the goal of self-sufficiency for the economically disadvantaged spouse, we affirm the denial of alimony. We also affirm the award of attorney's fees.