COURT OF APPEALS OPINIONS

Douglas L. Dutton, Albert J. Harb And Amy v. Hollars, Knoxville, Tennessee, For Appellees.
E2000-02459-C0A-R3-CV
Trial Court Judge: Dale C. Workman

Brian Boyd vs. Bill Berrier, et al
E2000-02546-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jerri S. Bryant
The Plaintiff, Brian Boyd, agreed to purchase three (3) mobile home lots on an installment basis. After nominal down payments he made monthly payments for several months, during which time he received rental income. The contracts provided for forfeiture in the event Mr. Boyd failed to make two (2) consecutive payments or failed to pay the taxes. Mr. Boyd missed four payments, and failed to pay the taxes. He was ordered to quit the property in a detainer action, which was consolidated with a complaint in Chancery for damages for the asserted violation by the assignee of the seller of the Consumer Protection Act. The complaint was dismissed. We affirm.

Holly Paul vs. Thomas Paul
E2000-02161-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: John B. Hagler, Jr.
Holly Lynn Coleman Paul ("Wife") filed a complaint seeking a divorce from Thomas Frazier Paul ("Husband") on the basis of inappropriate marital conduct or, in the alternative, irreconcilable differences. Husband filed a counterclaim seeking a divorce on the ground of inappropriate marital conduct. The Trial Court granted Husband the divorce, divided the marital property which the parties could not divide by agreement prior to trial, awarded custody of the two minor children to Husband, and granted visitation to Wife. Wife appeals challenging the Trial Court's determinations on all of these issues. We affirm as modified.

Mary Costa, Sue Henard, et al vs. James Clayton, LaRue Homes, et al
E2000-02627-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: John F. Weaver
Plaintiffs' action to invalidate an agreement between the defendants to grant an easement as consideration for land was found to be meritorious by the Trial Judge, and plaintiffs were granted summary judgment. On appeal, we affirm.

Kanta Keith, et al vs. Gene Howerton, et al
E2000-02703-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Dale C. Workman
In this appeal from a judgment of the Knox County Circuit Court the Plaintiffs/Appellants, Kanta Keith, Darlene Keith and Walter Jackson, contest the Trial Court's ruling that the Defendants/Appellees, Gene Ervin Howerton and Easy Money, Inc., did not violate the Tennessee Consumer Protection Act of 1977 with respect to pawn transactions entered into with the Plaintiffs. The Plaintiffs also contest the amount of damages awarded by the Trial Court for property belonging to them which was stolen while in possession of the Defendants. We affirm in part as modified, reverse in part, and remand for proceedings not inconsistent with this opinion. We adjudge costs of the appeal against the Defendants, Gene Ervin Howerton and Easy Money, Inc.

Debra Smith vs. EZ Pawn Co., et al
E2000-02741-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: William E. Lantrip
This is a suit by Debra Smith seeking damages against EZ Pawn Company and others because of sexual harassment visited upon her by James Cameron, the owner of the company. The Trial Court found that her claim under the Tennessee Human Rights Act and under the Malicious Harassment Statute were barred by the applicable statute of limitations. We affirm.

Charles Doss et al vs. Grace T. Sawyers
E2000-01745-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jeffrey F. Stewart
This is a suit wherein the Plaintiffs seek to remove a cloud in the form of a purchase agreement from the title of property owned by the Plaintiffs. The Trial Court found that the purchase agreement was invalid because of lack of mental capacity of the then owner, Charles Doss, to sign the agreement, and awarded a judgment in the amount of $6900 to the Defendant for payments made under the agreement. We reverse the judgment of the Court relative to the invalidity of the purchase agreement and, in accordance with the prayer of the counter-complaint, order that the property be conveyed by the Clerk and Master to the Defendant subject to payment of the balance owed on the property as determined upon remand.

The John Lee Co., Inc. v. Lamar Haynes, et al.
M2000-02407-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

The plaintiff, a manufacturers' representative, filed this action for a declaratory judgment that it is not indebted to the defendant for commissions on sales of tee shirts manufactured by Tee Jays Manufacturing Company and sold to Planet Hollywood, in light of the fact that the defendant's sole participation was to arrange a meeting between buyer and seller. The Chancellor found the plaintiff was liable for the commission under a contract theory. We affirm.

In re: Estate of Pauline Maddox
M1998-00925-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Tom E. Gray

This appeal involves the testamentary intent of an 89-year-old widow who died leaving a sizeable estate. After one of the decedent's grandsons, acting as her executor, submitted for probate a February 1991 will and a June 1995 codicil, the decedent's surviving daughter filed a will contest proceeding in the Chancery Court for Sumner County, alleging that the will had been procured by the executor's undue influence and that the distribution of the estate should be governed by a 1989 holographic instrument. Following a bench trial, the trial court upheld the validity of the 1991 will and the 1995 codicil. On this appeal, the decedent's daughter asserts that the trial court erred by determining that the 1991 will and the 1995 codicil expressed the decedent's testamentary wishes rather than the 1989 document. We have determined that the evidence supports the trial court's conclusions and, therefore, affirm the judgment.

Krishnalal Patel, et al., v. Dileep Patel
M2000-00583-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

The SREE General Partnership was formed for the purpose of owning and managing motel property in Nashville, Tennessee. During the ownership period, the property deteriorated. The partners sued a co-partner for breach of fiduciary duty, claiming that his negligent management of the property was what caused the deterioration and resulting economic loss. The trial court ruled for the defendant. We affirm.

State of Tennessee, ex rel., Woody M. Hartley v. Jennifer L. Robinson
M2000-01625-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Muriel Robinson

After divorce, Husband was ordered to pay child support to Wife for care of his minor children. Husband was employed as a commercial truck driver by Company. Thereafter, Husband was diagnosed with seizure disorder that required medication to treat. As a result, Husband lost his commercial trucking license as mandated by Federal Regulations. Upon losing his job as a commercial truck driver, Husband accepted a warehouse position with Company for considerably less money. He petitioned the court for a reduction of child support commensurate with his lower salary. The trial court found that he was underemployed and denied the reduction. Husband appealed. Although he failed to submit a transcript or statement of the evidence in the record, the trial court's order contains stipulated facts. We reverse and remand for entry of order reducing child support.

Jerry T. Beech Concrete Contractor, Inc. v. Larry Powell Builders, Inc., et al
M2000-01704-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This is an action by a contractor to receive the balance due under a contract for the construction of two buildings. The owner counterclaimed for damages alleging lack of good workmanship. A principal issue concerned attorney fees, and whether a document purporting to be a contract was, in fact, a contract. We hold that the document proffered by the plaintiff was accepted as a contract by the defendant, and that the attorney fee provision is enforceable.

Tommy Burgess, et al., v. Bill Fuller, D/B/A Bill Fuller Landscaping
M2000-02094-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge Robert L. Holloway

In this dispute over a landscaping contract, the Circuit Court of Maury County held that the contractor breached the agreement. The defendant contends that the court rewrote the agreement. We disagree and affirm the judgment of the trial court.

Murray E. Body v. Jim Lamarr
M2000-02111-COA-R9-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Arthur E. McClellan

Murray E. Body ("Plaintiff") filed this personal injury suit against the owner of a jet ski, Jim Lamarr ("Defendant"). Plaintiff sustained physical injuries while pulling ski ropes into his boat when Defendant's jet ski ran over Plaintiff's ski ropes. Plaintiff had a boating policy ("Policy") with Continental Insurance Company ("Continental") which had uninsured boater limits of $100,000. Defendant had a liability policy with limits of $50,000. Plaintiff contends that his damages exceed Defendant's limits and that his Policy should be interpreted to provide coverage for accidents involving underinsured boaters. Continental filed a Motion to Dismiss, arguing that the Policy's language clearly and unambiguously does not provide coverage for underinsured boaters. The Trial Court treated Continental's motion as a Motion for Summary Judgment and granted the motion. Plaintiff was granted an interlocutory appeal. We affirm.

Don Stonecipher v. Estate of M.E. Gray, Jr., et al
M1998-00980-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Robert L. Jones

This is an appeal from a chancery court jury trial on a dispute arising from a contract to buy a wrecker and salvage yard business for 1.1 million dollars. The purchaser alleged that the seller fraudulently induced him to contract to buy the business because after the parties reached an agreement on the purchase, the seller took items contemplated to be included in the contract without the buyer's knowledge. On the other hand, the seller's estate asserted a breach of contract claim because the note's balloon payment was overdue. After a trial, the jury decided that the seller had concealed or withheld items that the parties contemplated to be part of the contract, that the seller made misrepresentations as to what was to be included in the contract, he knew the misrepresentations were false at the time made, and he intended the buyer to rely on the misrepresentations. The jury decided that, had the buyer known the items were missing, he would not have declined to enter into the purchase at all but, instead, would have negotiated a lower price. Therefore, the court entered a verdict dismissing the buyer's complaint for rescission, awarded him a set-off and entered judgment against him for the balance of the note plus interest minus the set-off. Costs were apportioned between the parties and each party was ordered to pay its own attorney's fees. Both parties appeal. For the reasons below, we affirm the judgment of the trial court in part, vacate in part, and remand.

First American Trust Co. v. Franklin-Murray Development Company, L.P.
M1998-00984-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Henry Denmark Bell

This appeal involves a post-judgment receivership proceeding commenced while the case was pending on appeal. The seller of a large tract of Brentwood property obtained a judgment against the defaulting purchaser in the Chancery Court for Williamson County. While the purchaser's appeal was pending, the seller proceeded to execute on its judgment and requested the trial court to appoint a receiver to protect the interests of the purchaser's creditors. After the trial court appointed a receiver, the purchaser's former law firm filed a claim with the receiver for over $100,000 in unpaid legal expenses. When the seller's judgment against the purchaser was satisfied outside of the receivership proceeding, the trial court granted the receiver's motion to dissolve the receivership without addressing the law firm's claim. The law firm asserts on this appeal that the trial court should not have closed the receivership until its claim was addressed. We have determined that the trial court lacked jurisdiction to establish the receivership and, therefore, that the receivership proceedings were null and void. Accordingly, the trial court did not err by declining to address the law firm's claim in the receivership proceeding.

Bowdoin Grayson Smith v. Ginger Lee Marenchin Smith
M2000-01094-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Charles K. Smith

This is the second appeal regarding the setting of the amount of the father's child support obligation for four children. In the earlier appeal, this court remanded for a determination of the father's actual net income and his corresponding child support obligation. On remand, the trial court in early 2000 based its award of prospective support on an average of father's income in 1992 through 1995 and established the father's back support based on that figure. We find that the prospective award should be set on the most current income figures, but that an average of the most recent years is appropriate. We also find that the amount of back child support should be computed using actual income for the intervening years. Because the record does not contain sufficient information regarding challenged deductions from gross income for the years now at issue, we remand for an evidentiary hearing on the father's income in the years since the divorce in 1996, and a redetermination of both prospective and back support. We affirm the denial of prejudgment interest.

Valerie Jean Spivey, et al., v. Sumner County, Tennessee, et al.
M2000-00771-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Arthur E. McLellan

Plaintiffs in this matter have alleged that their employment was terminated in violation of Tennessee's Public Protection Act, Tennessee Code Annotated section 51-1-304. The trial court ruled in favor of Defendants' Motion for Summary Judgment and dismissed this case in its entirety finding that all three Plaintiffs had failed to prove that their termination was based solely on "whistle blowing". We affirm the trial court's decision in this regard.

Tammy Jewell Robertson v. Walter Scot Robertson
M1999-02103-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Thomas W. Graham

This appeal involves a dispute over the division of a marital estate following a marriage that lasted approximately two and one-half years. Both parties sought a divorce on the ground of inappropriate marital conduct in the Circuit Court for Franklin County. During a bench trial lasting two days, the parties stipulated that they both had grounds for divorce but hotly contested the classification, valuation, and division of their marital and separate property. The trial court declared the parties divorced and divided their property without clearly classifying or placing a value on it. On this appeal, the wife asserts that the trial court erred by considering the husband's contributions to the marital home as his separate property and that the net division of the marital estate was inequitable. Despite the ambiguity resulting from the trial court's failure to classify and value the parties' property, we have determined that the trial court's division of the martial estate was essentially equitable.

Paul David Crews, et al., v. Hooters Restaurant of Nashville, Inc., et al.
M1999-02813-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Barbara N. Haynes

This appeal involves two shootings during an attempted armed robbery of a restaurant, that left one man dead and one man wounded. The parents of the deceased victim and the wounded victim and his wife filed suit in the Circuit Court for Davidson County against the restaurant and the persons who attempted to rob the restaurant, alleging that the restaurant had negligently failed to use reasonable care to protect its patrons from foreseeable harm. The trial court granted the restaurant a summary judgment and dismissed the negligence claim against it. The plaintiffs, relying on McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891 (Tenn. 1996), assert on this appeal that the trial court erred by granting the restaurant's summary judgment motion. We concur with the trial court's conclusion that the material facts are not in dispute and that the restaurant is entitled to a judgment as a matter of law because it demonstrated that the plaintiffs would be unable to prove an essential element of their case. Accordingly, we affirm the trial court's order dismissing the claims against the restaurant.

Patrick Joseph Edgin vs. Valentina Paulovna Edgin
M2000-02122-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Jim T. Hamilton

Cassie Gilliland vs. Billy Pinkley
W2000-00982-COA-R3-CV
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Roy B. Morgan, Jr.
Plaintiffs appeal from a grant of summary judgment in favor of defendant Vision Care Properties, Inc., and the refusal of the trial court to subsequently grant relief under Tenn. R. Civ. P. 60.02. The complaint alleged that the minor child, Cassie Gilliland, was attacked and injured by a vicious dog owned by, and kept at the home of, defendant Billy Ray Pinkley, which residence was leased to Pinkley by defendant Vision Care Properties, Inc. Subsequent to the grant of summary judgment, plaintiffs sought Rule 60.02 relief based upon an affidavit of Pinkley which was inconsistent with his prior affidavit. We affirm the trial court in all respects.

Roy Anderson Corporation v. Westchester Fire
W2000-01489-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert A. Lanier

Julia Crews vs. Buckman Lab
W2000-01834-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: D'Army Bailey
Plaintiff, attorney employed in legal department of corporation, sued the corporation for retaliatory discharge. Plaintiff alleges that she was discharged in retaliation for her reporting her superior, general counsel of the corporation, for the unauthorized practice of law, because her supervisor was unlicensed in the State of Tennessee. The trial court dismissed plaintiff's complaint pursuant to Tenn.R.Civ.P. 12.02(6) for failure to state a claim upon which relief can be granted. Plaintiff appeals. We affirm.

Walter Chandler vs. Canale & Co.
W2000-02067-COA-R3-CV
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Floyd Peete, Jr.
Plaintiff appeals from a grant of summary judgment in favor of the defendants. The complaint alleged the plaintiff had a partnership with the defendants and accused the defendants of breach of contract. The trial court granted summary judgment for the defendants on the basis of judicial estoppel, concluding the plaintiff had previously testified under oath in prior litigation that he had no ownership interest in the business. We affirm the judgment of the trial court.