COURT OF APPEALS OPINIONS

Albert Thompson v. Patricia Chafetz
W2003-00518-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge George H. Brown

This is an appeal from an Order denying Appellant’s Tenn. R. Civ. P. 60 Motion, which sought relief from the grant of Appellee’s Motion for Summary Judgment. Appellant’s attorney failed to set the Motion for hearing until some nineteen (19) months after the entry of the Order granting summary judgment. The trial court found that the attorney’s failure to prosecute resulted in prejudice to Appellee and denied the Rule 60 Motion. We affirm.

Barbara Jean Cain v. Charles Curtis Cain
W2003-00563-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Joe C. Morris

Wife filed for divorce alleging Husband was guilty of inappropriate marital conduct. Trial court granted Wife an absolute divorce, ordered a martial property distribution, and awarded wife alimony and attorney’s fees. Husband appeals. We affirm the distribution of marital property, modify the award of attorney’s fees, vacate the requirement to provide life insurance and remand.
 

C.B. Ragland Company v. Maxwell Roofing & Sheet Metal, Inc.
M2003-00283-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Marietta M. Shipley

This case arises out of a breach of contract by the Defendant for a roof Defendant installed on Plaintiff's freezer storage facility. The case was tried before a jury, who found the Defendant had materially breached the contract between the parties and awarded Plaintiff damages in the amount of $5,655.00. Subsequently, Plaintiff filed a motion to alter or amend the judgment or, in the alternative, a motion for additur or new trial. The trial court denied the motion to alter or amend the judgment but suggested an additur increasing the award to $30,655.00, which Defendant appealed. For the following reasons, we affirm the decision of the trial court.

George D. Woodard, Jr., v. The Estate of Martha Almeda Swope Woodard, Deceased, et al.
E2003-00258-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor Howell N. Peoples

In 1964, Mr. and Mrs. Woodard executed a Joint Last Will and Testament (the "Joint Will") which provided that the survivor would receive the decedent's entire estate in fee simple. The Joint Will further provided that, upon the death of the survivor, the survivor's estate would be divided in equal one-fourth shares among George D. Woodard ("Plaintiff"), Mr. Woodard's son from a previous marriage, and Mr. and Mrs. Woodard's three daughters. Mrs. Woodard executed a new will in 1998 (the "1998 Will"), approximately twenty years after Mr. Woodard's death. Pursuant to the terms of the 1998 Will, Plaintiff was to receive $10,000, with the remainder of Mrs. Woodard's estate to be divided equally among her three daughters. Mrs. Woodard's three daughters sought to probate the 1998 Will after she passed away. Plaintiff then filed this lawsuit claiming, among other things, that the Joint Will created a contractual obligation on the part of Mrs. Woodard to distribute her estate in accordance with the terms of the Joint Will and, therefore, Plaintiff was entitled to one-fourth of Mrs. Woodard's estate. Plaintiff sued Mrs. Woodard's estate as well as his three half-sisters, Sandra Norton, Martha Scissom, and Barbara Lambert (collectively referred to as "Defendants"). The Trial Court granted Defendants' motion for summary judgment. We conclude there is a genuine issue of material fact regarding whether there existed a contractual obligation on the part of Mrs. Woodard to distribute her estate according to the terms of the Joint Will. Accordingly, we vacate the judgment of the Trial Court and remand for further proceedings.

In the Matter of Curtis Jason Ely
M2000-01937-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Frank G. Clement, Jr.

This appeal involves a state prisoner who desires to change his name for religious reasons. Even though the prisoner's petition was uncontested, the Davidson County Probate Court declined to permit the prisoner to change his name solely because he had been convicted of a felony. While we have determined that the probate court erred by denying the prisoner's petition solely because he had been convicted of a felony, we have determined that the petition was properly dismissed.

Overnite Transportation v. Teamsters Local Union No. 480
M2002-02116-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Ellen H. Lyle

This case arose out of a labor dispute. In October 1999, the defendant union began a labor strike at the plaintiff trucking company's Nashville facility. The company filed a petition in the lower court seeking to enjoin the union from engaging in violence and intimidation in connection with the strike. The company later amended its complaint to include a claim against the union for intentional interference with business relations. Between October 1999 and January 2000, the trial court entered five injunctions against the union, each more restrictive than the one before, enjoining the union from engaging in the alleged unlawful violence and intimidation. In August 2000, the trial court issued a show cause order, citing 128 alleged violations of the injunctions, requiring the union to show cause why it should not be held in civil contempt. In March 2002, the trial court determined that the company's petition for civil contempt was moot because, by that time, the contemptuous conduct had ceased. In August 2002, the trial court dismissed the company's claim for intentional interference with business relations for failure to state a claim. The plaintiff trucking company now appeals. We reverse the dismissal of the civil contempt petition, finding that the company may seek damages caused by conduct in violation of the injunctions, and affirm the dismissal of the intentional interference claim.

James W. Stephenson v. The Third Company, et al.
M2002-02082-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Ross H. Hicks

The plaintiff filed suit for repayment of $25,000 which he purportedly loaned to the defendant. The defendant contended that the money was not a loan, but was placed with him for a specific investment. Since the investment ultimately failed, the defendant claimed that he did not owe anything to the plaintiff. The trial court noted that the documents evidencing the transactions at issue were “replete with ambiguities,” but found that they were nonetheless sufficient to establish an enforceable loan contract. The court accordingly rendered a plaintiff’s judgment for $25,000 plus interest. We reverse.

James Stephenson v. The Third Company - Dissenting
M2002-02082-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Ross H. Hicks

I agree on both counts. The “loan agreements” are poorly drafted, and they do not reflect
sound business judgment on Mr. Caldwell’s part. So what? When competent parties have bargained in good faith and have entered into a written contract, it is not the courts’ prerogative to rewrite the contract or to relieve either party from the burdensome effects of their agreement. Vargo v. Lincoln Brass Works, Inc., 115 S.W.3d 487, 492 (Tenn. Ct. App. 2003). Whether considered by themselves or in conjunction with the parties’ separate “consulting agreements,” the fact of the matter is that Mr. Caldwell’s “loan agreements” are precisely that – loan agreements. I would affirm the trial court.

Myrtle Marie Stagner v. Lloyd Otis Stagner
E2003-00610-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

After nineteen years of marriage, Myrtle Marie Stagner (“Wife”) sued Lloyd Otis Stagner (“Husband”) for divorce. After trial, the Trial Court ordered, inter alia, the marital home sold and awarded Wife sixty percent of the proceeds with ten percent being alimony in solido in lieu of any other alimony. The Trial Court also characterized as Husband’s separate property the appreciation of Husband’s separate pre-marital property. Wife appeals as to both the alimony and the property division. We affirm, in part, and vacate, in part, and remand.

Myrtle Marie Stagner v. Lloyd Otis Stagner - Concurring
E2003-00610-COA-R3-CV
Authoring Judge: Judge Charles D. Susano
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

I concur in the majority opinion. I write separately to further address the majority’s treatment of the Illinois farm. I agree with the majority that the use of the parties’ joint accounts – to which both parties contributed – to pay “real estate taxes, insurance premiums, repairs and maintenance on the farm” during the parties’ 19-year marriage is clear evidence that “each party substantially contributed to [the Illinois farm’s] preservation and appreciation.” See Tenn. Code Ann. § 36-4- 121(b)(1)(B). This means that the entire “increase in value [of the Illinois farm] during the marriage,” see id., is marital property. Obviously this does not end the inquiry, because the trial court on remand must decide how to make an equitable division of the marital property portion of the present value of the farm in the context of an overall division of the total marital property estate. See Tenn. Code Ann. § 36-4-121(c)(1)-(11).

Melody Lynn Michael v. John William Michael, Jr.
E2003-01214-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Dale Young

On September 6, 2002, Melody Lynn Michael ("Wife") filed suit against her husband, John William Michael, Jr. ("Husband"), seeking a divorce, custody of the couple's minor child, and ancillary relief. The complaint reflects that Husband is an active-duty member of the United States Air Force. Service of process on Husband was attempted through the Secretary of State "by certified or registered mail" directed to Husband at his acknowledged address in Waldorf, Maryland. The Secretary of State notified the clerk of the trial court that his correspondence to Husband was returned by the United States Postal Service with the notation that it was "refused." When there was no response filed by Husband to Wife's complaint, Wife, on November 25, 2002, filed a motion for default judgment. The motion was heard and granted on January 6, 2003, and subsequently memorialized in a default judgment and judgment of divorce entered January 24, 2003. A motion to set aside the default judgment and judgment of divorce was filed by Husband on February 14, 2003. Following a hearing on April 7, 2003, the trial court entered an order on May 6, 2003, denying the motion. Husband appeals. We affirm.

Tanikia Yolanda Boone v. Houston Gibson, Jr.
E2003-00226-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jacqueline E. Schulten

Tanikia Yolanda Boone (“the tenant”) sued Houston Gibson, Jr. (“the landlord”), seeking damages and other relief for wrongful eviction and for the wrongful withholding of her personal possessions, pursuant to the Uniform Residential Landlord and Tenant Act (“the URLTA”), Tenn. Code Ann. § 66-28-101, et seq. (1993 & Supp. 2003). The tenant attempted service on the landlord by having the landlord’s process served on Donna Gibson, the landlord’s former wife. After the landlord failed to respond to the complaint, the tenant filed a motion for default judgment. The trial court granted the motion and awarded the tenant damages of $20,000 and attorney’s fees and costs totaling $3,500. Approximately two years later, in response to the tenant’s efforts to execute on her judgment, the landlord filed a motion to dismiss the default judgment on the ground that the trial court lacked personal jurisdiction over him. Following a hearing on the landlord’s motion, the trial court held that the landlord’s former wife had authority as his agent to accept service of process on his behalf. We affirm.
 

Wincor, Inc. v. John Dunlap
W2002-02522-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge D'Army Bailey

This case involves Plaintiff’s claim that Defendant committed legal malpractice while representing
Plaintiff in certain bankruptcy proceedings. The Defendant filed a motion for summary judgment,
alleging that the applicable statute of limitations bars the malpractice action, as does the doctrine of res judicata. The trial court granted Defendant’s motion, and Plaintiff filed the instant appeal. For
the following reasons, we affirm the ruling of the lower court.

Wellesley Builders, L.L.C. v. Village of Cherry Glen Association, Inc.
M2002-03102-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Special ChancellerClaudia C. Bonnyman

The Homeowners' Association of a residential subdivision organized as a planned unit development assessed maintenance fees against the owner of twenty-two unimproved lots in the subdivision. The owner of those lots filed a suit to obtain a declaration that it was not liable for those fees, alleging that the developer had waived all assessments on vacant lots. The trial court found that the Association was entitled to rescind the waiver, granted summary judgment to the Association, and ordered the lot owners to pay the fees, as well as significant late charges and attorney fees, for a total of over $45,000. We reverse the judgment because there is no evidence in the record that the Board of Directors of the Homeowners' Association ever officially rescinded the waiver, and there is thus a material question of fact as to whether its assessments were valid.

In Re: Estate of Erin Murray Jones
M2002-03073-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Frank Clement, Jr.

This appeal is from a will contest. The trial court entered judgment according to the terms of a settlement agreement between the parties. Appellants contend they withdrew their agreement to the settlement before approval of the agreement by the trial court. They accordingly submit the agreement is not enforceable. We affirm judgment of the trial court enforcing the terms of the settlement agreement.

Crew One Productions, Inc., v. State of Tennessee
M2003-00585-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Commissioner W.R. Baker

This is an employment tax case. The State of Tennessee appeals the determination of the Tennessee Claims Commission that Crew One Productions is not liable for Tennessee employment tax by virtue of a federal safe harbor provision known as section 530. We reverse, holding Tennessee is not bound by the federal safe harbor provision.

Mark Edward Igou v. Dinah Carol Igou
E2003-00253-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor W. Frank Brown, III

Mark Edward Igou ("Husband") sued Dinah Carol Igou ("Wife) for a divorce. After trial, the Trial Court awarded Wife alimony only to the extent of requiring Husband to "pay all cost of tuition, books, fees, and other charges relating to [Wife's] obtaining a master's degree whether it's in education or any other related field which will increase her compensation" with the restrictions that Wife must complete the course of study within five years from the entry of the Trial Court's order and that Wife must achieve passing grades. Wife appeals the Trial Court's judgment as to alimony and attorney fees. We affirm.

Janice Forsyth, et al., v. Mary N. Cross
E2003-01338-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Chancellor Frank V. Williams, III

This is a boundary-line case. The Defendant's survey evidence was excluded, and reputation evidence offered by the Plaintiff as to the common boundary line was admitted. Defendant appeals. We affirm.

Samuel Timothy Collins, v. Knox County, Tennessee, et al., - Concurring
E2003-01421-COA-R3-CV
Authoring Judge: Judge Charles D. Susano
Trial Court Judge: Judge Wheeler A. Rosenbalm

I concur in the result reached by the majority. I do so because I believe the record before us
reflects undisputed material facts that negate an essential element of the plaintiff’s cause of action, i.e., the element of “proximate causation” of the appellant’s damages. I do agree with the appellant that there remains a genuine issue of material fact for the trier of fact as to the element of “cause in fact.” I believe a jury could reasonably find that there is a “cause and effect relationship between the defendant’s tortious conduct and the plaintiff’s injury or loss.” White v. Lawrence, 975 S.W. 2d 525, 529 (Tenn. 1998). As the Supreme Court has pointed out, “cause in fact” addresses the “‘but for’ consequences of an act.” Id. However, in my judgment, the conduct of the Sheriff’s Office, once the deputies arrived at the bank and thereafter took the appellant into custody, conclusively militates against a finding of proximate causation tying the bank’s conduct to the appellant’s damages.

Samuel Timothy Collins v. Knox County, Tennessee, et al.
E2003-01421-COA-R3-CV
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Judge Wheeler A. Rosenbalm

This appeal arises out of a complaint filed by the Appellant, Samuel Timothy Collins, against the
Appellee, NBC Bank, for damages he allegedly incurred as a consequence of his erroneous arrest and incarceration by the Knox County Sheriff’s Department. We affirm the judgment of the Trial Court.

John F. McCarthy v. UT- Battle, L.L.C
E2003-02052-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Judge Russell E. Simmons, Jr.

The Plaintiff was an at-will employee of the Defendant when he was terminated for an asserted cause. In this action he alleges that he was wrongfully terminated because the Oak Ridge National Laboratory Handbook afforded him a contractual right of peer review. The motion of the Defendants for summary judgment was granted upon a finding that the Handbook was not an employment contract. We affirm.

Linda G. Johnson v. Mark Reineke, et al.
E2003-01972-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Chancellor Jerri S. Bryant

The Petitioner was discharged from her executive position as Director of the Lenoir City Housing Authority for misconduct connected with her employment. The Authority was awarded McKinney Act funds, an audit of which revealed that $156,000.00 of these funds were inappropriately expended, which led to the discharge of the Petitioner.

Linda Ward, Individually and as Natural Child and Surviving Next of Kin of Nellie M. Curlin, Deceased v. Ami Sub (SFH), Inc., et al.
W2003-00965-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Rita L. Stotts

This appeal arises from a medical malpractice action. The trial court awarded Defendant Luis A.
Fiallo, M.D., summary judgment based on the statute of limitations and statute of repose. We
affirm.
 

Patricia A. Dye and Roger L. Quillen, Co-Administrators of the Estate of Jimmy Doyle Dye, Deceased, et al. v. R. Louis Murphy, M.D., et al.
W2003-01521-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Clayburn L. Peeples

This appeal arises from the trial court’s award of summary judgment to the Defendant in a medical malpractice action. The trial court awarded summary judgment based on the statute of limitations. We affirm.
 

Roy V. Smith, II v. Grace Hutchison (Blair)
W2003-00214-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Charles V. Moore, Jr.

Father filed a petition for an initial determination of custody against the Mother. Father alleged that he was the fit and proper person for the custody of the child. Based on the evidence presented at trial, the juvenile court entered a judgment and permanent parenting plan which found that the Mother was more comparatively fit to continue serving as the primary residential caregiver. Father appeals the trial court’s judgment. We affirm.