COURT OF APPEALS OPINIONS

John M. Hollis, individually and as the Surviviing Parent of Raven BLair Hollis, v. W. Charles Doerflinger, Administrator ad Litem for the Estate of Rhonda B. Hollis, et al.
M2002-00222-COA-R3-CV
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Judge Stella L. Hargrove

This is an insurance case. The mother and the father were covered by an automobile insurance policy that excluded coverage for certain family members who were residents of the same household as the insureds. The mother was pregnant with a viable fetus. She was at fault in an automobile accident in which she and the fetus died. On behalf of the deceased fetus, the father filed a wrongful death action against the mother's estate. On a motion for partial summary judgment, the father sought a declaratory judgment to determine whether the insurance company was obligated to provide coverage for the deceased fetus. The trial court found that the insurance policy's family exclusion provision was ambiguous. Consequently, it construed the policy in favor of the father, finding that the fetus was not considered a resident of the father's household and that the insurance company was required to provide coverage for the deceased fetus. After a trial, the father was awarded damages plus prejudgment interest. The insurance company and the administrator ad litem of the mother's estate appeal. The insurance company argues that the fetus was excluded from coverage. The administrator ad litem of the mother's estate asserts that the trial court erred in awarding prejudgment interest. We reverse, finding that the fetus was a resident of the mother's household, and consequently a resident of the father's household, and that the insurance company was therefore not obligated to provide coverage for the fetus. The award of prejudgment interest is reversed as well.

Randy J. Overstreet v. Rebecca D. Overstreet
M2002-01178-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Marietta M. Shipley

In this divorce Husband appeals the type and amount of alimony awarded Wife at the end of a twenty-three year marriage. Because the evidence does not preponderate against the trial court's findings and the trial court acted within its discretion in applying relevant legal principles, we affirm.

Hazel Ann Edde v. Gladys Dalton Edde
M2002-01204-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Muriel Robinson

After a thirty-six year marriage, Wife filed for divorce on the grounds of irreconcilable differences, inappropriate marital conduct, and adultery. The trial court granted the divorce to Wife, divided the marital property, and awarded Wife alimony in futuro in the amount of $425 per month. Husband appeals. Because the evidence does not preponderate against the trial court's decision, we affirm the decision of the trial court.

In the Matter of: R.L.H., A Child Under Eighteen (18) Years of Age, State of Tennessee Department of Children's Services, v. Darlene Medley Hall - Dissenting
M2002-01179-COA-R3-JV
Authoring Judge: Presiding Judge Frank Crawford
Trial Court Judge: Judge Floyd Don Davis

While I concur in the majority’s opinion finding that grounds for termination of Hall’s parental rights as to R.L.H. have been established by clear and convincing evidence, I dissent as to the majority’s conclusion that termination of Hall’s parental rights is in the best interests of the minor child. I recognize that the evidence is certainly not favorable to Hall in some particulars, including the fact that her sole support is derived from social security, that she has no prospects of employment in the near future, her past failure to provide a safe and suitable home for the minor child in the face of abuse, her impaired mental condition, and the fact that Hall had no suitable residence for the child at the time of trial. However, this court must balance this evidence with the situation as it pertains to R.L.H. R.L.H. is a special needs child who has specific learning, speech, and behavioral problems. All reports indicate that R.L.H. is in need of continued counseling and therapy. Under the current arrangement, R.L.H. resides in a therapeutic foster home under the care of trained foster parents. This foster home has served as a stable and supportive environment for the minor child since approximately July 2000.

Town of Rogersville, ex rel. Water Commission v. Mid Hawkins County Utility District
E2002-01727-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge John K. Wilson

Petition to alter Respondent Utility's boundary was sustained by County Executive and Trial Court. On appeal, we vacate and remand with instructions.

Charles T. Kimery, v. Unicoi County Insurance Agency, et al.
E2002-00849-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Chancellor G. Richard Johnson

In a dispute over corporate ownership and management, the Trial Court awarded Judgment for compensatory and punitive damages and attorneys fees. On appeal, we affirm the compensatory damages and attorney fees award, but reverse punitive damage award.

Doug Long v. T. Allen Pannell, Jr.,
2002-01792-COA-R3-CV
Trial Court Judge: Sharon J. Bell

Susan Louise-Wright vs. Walter Wright
E2002-01786-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Bill Swann
This is a divorce case. Susan Louise Cronin-Wright ("Wife") filed a motion for partial summary judgment, asking the trial court to hold that Walter Curtis Wright, Jr. ("Husband"), "has no equitable interest in the marital residence and never contributed to [its] acquisition, preservation, or enhancement." The trial court granted the motion. Husband appeals, contending that the residence is a marital asset of which he is entitled to an equitable share. We affirm.

Kimberly Sue Jenkins v. Jody Dale Jenkins,
E2002-01979-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jacqueline E. Schulten

State ex rel. Jennifer Barnes vs. Anthony Brandenburg
E2002-00994-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Billy Joe White
The State of Tennessee, on relation of Jennifer Kamille Bond Barnes ("Mother"), filed a petition to increase the child support obligation of Anthony Wayne Brandenburg ("Father"). The trial court increased Father's child support obligation from $430 per month to $473 per month, a 10% increase. Father appeals, contending that the trial court failed to properly apply the provisions of the Child Support Guidelines ("the guidelines"). We affirm.

Dept of Children's Svrcs. vs. R. G. T.
E2002-02804-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Thomas J. Wright
The trial court terminated the parental rights of R.G.T. ("Father") to his minor child, L.B.T. (DOB: September 20, 2000). Father appeals, arguing that the evidence preponderates against the trial court's dual findings, i.e., (1) that grounds exist for terminating his parental rights and (2) that termination is in the best interest of L.B.T. We affirm.

Dpt. of Child. Services vs. DLSJ
E2002-00241-COA-R3-JV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Carey E. Garrett
The Trial Court on petition of the Department, terminated the mother's parental rights to the child. On appeal, we affirm.

Sherman Henderson v. Charles Traughber
M2002-02358-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Carol L. Mccoy
Plaintiff denied parole by the Board of Probation and Parole filed appeal with Chancery Court which was denied. On appeal, we affirm.

State ex rel Moore & Assoc. v. Terrence Cobb
M2002-00504-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Irvin H. Kilcrease, Jr.
This is an appeal of a denial of a writ of mandamus. Moore & Associates requested the lower court to require the Department of Codes Administration to issue an occupancy permit for the Hilton Garden Inn pursuant to the Metropolitan Code, Title 16, Chapter 36, Section 020(A). The Department of Codes Administration refused to issue the occupancy permit for the building because it felt that the landscape buffer yard did not comply with plans submitted. The trial court agreed with the Department and found that the term "building" includes the landscape buffer yard. For the following reasons, we reverse.

Patricia Conley v. State
M2002-00813-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
This is an appeal from the Claims Commission. The Claims Commissioner dismissed both claims alleged by Ms. Conley on the motion of the State. Additionally, the Claims Commissioner found that the State is not a governmental entity for the purposes of Tennessee Code Annotated section 20-1-119(g). For the following reasons, we reverse and remand.

Cynthia Barnett v. Barbara Behringer
M1999-01421-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Ellen Hobbs Lyle
This appeal involves a dispute between the owners of units in a duplex arising out of the plans of one owner's tenants to build a free-standing storage building on her lot. The owner who opposed the storage building filed suit in the Chancery Court for Davidson County seeking an injunction against violating restrictive covenants and zoning regulations, as well as damages for trespass. The trial court granted the defendant owner's and tenants' motion for summary judgment and dismissed the complaint. On this appeal, the owner who objected to the storage building asserts that material factual disputes should have prevented the trial court from granting the summary judgment and that her neighbor and her neighbor's tenants had not demonstrated that they were entitled to a judgment as a matter of law. We have determined, as a matter of law, that the proposed storage building does not violate the restrictive covenants or applicable zoning regulations and that the plaintiff is not entitled to injunctive relief. Accordingly, we affirm the summary judgment dismissing the complaint.

Troy Allen Thompson v. Elisa Connell Hulbert
W2003-01275-COA-RM-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: A. V. Mcdowell

Bob Kielbasa, et al v. B & H Rentals
M2002-00129-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: John D. Wootten, Jr.
Plaintiffs appeal from the action of the trial court dismissing their Complaint for Declaratory Judgment on the basis that it is barred by the statute of limitations. A previous Petition for Writ of Certiorari under Tennessee Code Annotated section 27-9-101 had been dismissed by the Chancery Court of Wilson County because it was filed after the limitation period provided by Tennessee Code Annotated section 27-9-102 had expired. That dismissal was upheld on appeal and this suit for declaratory judgment followed. The trial court correctly dismissed the complaint because of the expiration of the statute of limitations.

Chattanooga-Hamilton County Hospital Authority vs. Ade Oni, M.D.
E2002-01758-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Jacqueline E. Schulten
Action on lease and trial court awarded judgment for rent and expenses. On appeal, we affirm as modified.

In Re: Estate of Donald Lee Keith
E2002-02056-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jeffrey F. Stewart
This is a will contest. Freddie A. Johnson and wife, Marie Johnson ("the grandparents"), filed a petition to probate the holographic will of their grandson, Donald Lee (D.J.) Keith, Jr. ("the decedent"). The decedent's widow, Alexis Keith ("the wife"), and his minor daughter, Kassce Mae-Kyle Keith ("the minor child"), contested the alleged will, arguing that it did not constitute a valid holographic will. The trial court granted the motion for summary judgment filed by the wife and the minor child, holding that the document under contest was not a last will and testament. The grandparents appeal, contending that summary judgment is not appropriate. We vacate the trial court's judgment and remand for further proceedings.

Joseph Houston vs. Charles Mounger
E2002-00779-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Frank V. Williams, III
After judgment was entered, certain inaccuracies, deemed to be clerical errors in an engineering survey of extensive properties, were discovered which were resolved by the trial court following hearings, and the judgment was corrected or amended over the appellant's objections. This appeal followed, but no transcript of the proceedings was filed, and the appellant's purported Statement of the Evidence did not receive the approbation of the Chancellor. Consequently, the appellant court must assume that the evidence was sufficient to support the judgment, and the appeal is dismissed.

Glenn Basham v. Henry Tillaart
M2002-00723-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jeffrey F. Stewart
The plaintiff, Glenn Basham, doing business as Glenn Basham Nursery, sued Henry Tillaart and Martin Tillaart ("the individual defendants"), who are identified in the complaint as Ontario, Canada businessmen, for monies due as a result of a commercial sale of nursery stock. The style of the complaint refers to the trade name of the individual defendants as "Dutchmaster Nurseries." Over six years later, the plaintiff moved the trial court to substitute a Canadian corporation, i.e., "Dutchmaster Nurseries, Ltd.," for the individual defendants. The individual defendants moved to dismiss the complaint for "insufficiency of service of process." They also claimed that the plaintiff's cause of action was barred by the statute of limitation. The trial court denied the motion to amend. It granted the motion to dismiss the complaint. The plaintiff appeals, arguing that the motion to dismiss should have been denied and that he should have been permitted to amend his complaint to name the correct defendant. We affirm.

Gwendolyn Jackson vs. Zodie Hamilton
W2000-01992-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Rita L. Stotts
This action arises out of an automobile accident, and Plaintiffs' claimed damages of lost wages, loss of consortium, medical expenses, and pain and suffering. The case was tried before a jury, who found in favor of the Plaintiffs and awarded one of the Plaintiffs $600. Plaintiffs appeal the verdict, and this Court reverses and remands the case for a new trial.

Thomas Bronson vs. Horace Umphries vs. Norfolk Railway
W2002-01260-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: John R. Mccarroll, Jr.
This appeal is from judgments on jury verdicts in a wrongful death case and personal injury cases resulting from a collision of a freight train with a vehicle. Suits were filed for the wrongful death and personal injury claims against the railroad, and the passengers in the vehicle also sued the owner and driver of the vehicle. The cases were consolidated for trial, and the jury returned a verdict for defendant railroad in all cases. The jury also returned a verdict awarding damages for plaintiffs' in their suit against the driver and owner of the vehicle. Judgments were entered on the jury verdicts, and all plaintiffs appealed. We affirm.

Frank Hooper Lacey v. Karla Suzanne Lacey
W2002-02813-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Dewey C. Whitenton