COURT OF APPEALS OPINIONS

William J. Reinhart v. Geico Insurance
M2009-01989-COA-R3-CV
Authoring Judge: Patricia J. Cottrell, P.J., M.S.
Trial Court Judge: Franklin L. Russell, Judge
The plaintiff owned a 1988 Porsche that was damaged by a collision with a deer. His insurer offered him $6,000 under his policy, after determining that the cost of repair was greater than the cash value of the car. The plaintiff, acting pro se, sued the insurer, and attempted to prove at trial that the auto was worth more than the insurer offered. After the plaintiff rested his case, the insurer moved for a directed verdict because the plaintiff had not introduced the insurance policy into evidence. The trial court granted the motion. The plaintiff argues on appeal that he did not intend to rest his case and that in any event the trial court should have allowed him to reopen his proof so he could introduce the insurance policy. Because there is neither a transcript of the proceedings nor a Rule 24 Statement of the Evidence in the appellate record, we must affirm the trial court.

David A. Lufkin, Sr. vs. Christopher W. Conner
E2009-01823-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Dale C. Workman

David A. Lufkin, Sr. ("Lufkin") sued attorney Christopher W. Conner ("Conner") for legal malpractice in January of 2009. Conner filed a motion for summary judgment. After a hearing, the trial court entered an order finding and holding, inter alia, that Lufkin knew or reasonably should have known of the existence of the facts forming this cause of action by September of 2007, and that Lufkin's complaint filed in January of 2009 was barred by the applicable statute of limitations. Lufkin appeals to this Court. We affirm.

Leslie Louise Miller vs. Jeffrey Todd Miller
E2009-02252-COA-R3-CV
Authoring Judge: Charles D. Susano, Jr., J.
Trial Court Judge: Kindall T. Lawson, Judge
Leslie Louise Miller ("Wife") filed this action for divorce. Jeffrey Todd Miller ("Husband") coupled a counterclaim for divorce with his answer. Wife admitted inappropriate marital conduct in her answer. The parties had been married for 15 years and had two minor children. They stipulated to a division of all of their property except the marital residence, about which there remained unresolved issues. After three days of trial, the court granted Husband a divorce on the grounds of inappropriate marital conduct. The court awarded him the marital residence and ordered him to pay Wife one half of the equity, which the court determined to be $47,092.50, minus $4,500 representing that portion of Husband's attorney's fees assessed to Wife. The court awarded "primary parentage" of the children to Husband and gave Wife, a teacher at the children's school, parenting time limited to every other weekend and one weeknight every week. Wife appeals. The judgment of the trial court is affirmed in part and vacated in part.

Angela Merriman vs. Brian Merriman
E2010-00013-COA-R3-CV
Authoring Judge: D. Michael Swiney, J.
Trial Court Judge: O. Duane Slone, Judge
Angela Merriman ("Petitioner") filed for and obtained an ex parte order of protection against her husband, Brian Merriman ("Respondent"). Pursuant to statute, a hearing was conducted on whether to dissolve or to extend the order of protection. In accordance with Tenn. Code Ann. _ 36-3-605(b), a trial court has two options at such a hearing: (1) to dissolve the order of protection; or (2) to extend the order of protection for a definite period of time not to exceed one year. With respect to taxing costs, Tenn. Code Ann. _ 36-3-617(a) expressly prohibits taxing costs against a victim, even if the order of protection is dissolved. If the order of protection is extended, the costs must be taxed against the respondent. In the present case, following the hearing on whether to extend or dissolve the order of protection, the trial court instead entered a mutual restraining order and taxed costs equally to both parties. Because neither action was authorized by statute, we vacate the judgment of the trial court and remand for further proceedings consistent with this Opinion.

Darlene Manis Brown vs Allan Craig Vaughn
E2010-00373-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge L. Marie Williams

Darlene Manis Brown, a Tennessee resident, filed a petition in the trial court seeking a protective order against her former boyfriend, Allan Craig Vaughn, a resident of the state of Georgia. Based upon her petition, the trial court issued an ex parte order of protection. Later, following an evidentiary hearing, the protective order was extended for one year. Vaughn appeals. He challenges the sufficiency of the evidence supporting the order of protection and claims the trial court lacked jurisdiction of this dispute. We affirm.

In Re Betty P., et al
E2010-00318-COA-R3-PT
Authoring Judge: Charles D. Susano., Jr., J.
Trial Court Judge: Sharon M. Green, Judge
This is a termination of parental rights case. Macaria L. ("Mother") appeals from the order terminating her parental rights to her five minor children and awarding full guardianship to the State of Tennessee. At the conclusion of a bench trial, the court ordered Mother's parental rights terminated upon its finding that she had abandoned her children by willfully failing to pay child support. Mother appeals. We conclude that the record contains clear and convincing evidence supporting the termination of Mother's rights. Accordingly, we affirm.

Mary Lawson v. Brad Lawson
M2009-00537-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Juidge C. L. Rogers

Uninsured motorist carrier voluntarily tendered the limits of its liability coverage into the probate proceeding administering the decedent's estate and not in the wrongful death tort action. The trial court dismissed the carrier from this wrongful death tort action since it had tendered its limits of liability. We find the dismissal was in error since any voluntary tender of insurance proceeds for wrongful death should be made into the wrongful death tort case, and tendering the limits elsewhere is not grounds for dismissal.

Rex Hubbard v. Helen Louise Hubbard
M2009-00780-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Thomas W. Graham

Wife argues on appeal that the trial court erred by awarding her a little more than half the parties' assets and alimony of $3,000 per month for 7 years while the physician Husband's earning capacity is considerably more than Wife's. During the parties' almost forty (40) year marriage, Wife reared 7 children and focused primarily on the family finances and not her individual finances. We agree with Wife and award her an additional $300,000 in marital assets. The matter is remanded to the trial court to determine reallocation of assets in accordance with this opinion.

Shannon Wright Clement v. Mark Clement
M2009-00466-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Royce Taylor

The divorcing parents of two minor children entered into a parenting plan that named the mother as the primary residential parent of the children, but divided parenting time equally between the parties. Less than a year after their divorce became final, the mother moved from Murfreesboro to Franklin, and the parents filed competing petitions to modify the parenting plan. The trial court conducted two hearings and ultimately adopted a new parenting plan which provided that the mother would remain the primary residential parent and that the father would exercise only standard visitation. The father appealed. We affirm the trial court.

Charles Bryson, et al vs. The City of Chattanooga
E2009-01101-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Howell N. Peoples

Before November 4, 1986, members of the Chattanooga Police and Fire Departments were allowed to buy back retirement credit for time served while employed in other departments within the City of Chattanooga. On November 4, 1986, a city-wide referendum was passed which established a cut-off date of June 1, 1987, in which to buy back these retirement credits. Almost nineteen (19) years later, this lawsuit was brought by fifteen (15) police officers ("Plaintiffs") against the City of Chattanooga (the "City") and the Chattanooga Fire and Police Pension Board (the "Pension Board"). Plaintiffs claimed, among other things, that the 1986 referendum unconstitutionally deprived them of a property right. Plaintiffs sought a declaration that they be allowed to buy back retirement credits for time served in other City departments. The Trial Court concluded that the statutes of limitation had run on all of the claims, with the exception of some of the plaintiffs' equal protection claim. The Trial Court then concluded that Defendants were entitled to summary judgment as a matter of law as to the one timely claim. Plaintiffs appeal, and we affirm.

In the Matter of: Madison K.
W2010-00183-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Christy R. Little

This is a termination of parental rights case. Father/Appellant appeals the trial court's termination of his parental rights to the minor child on grounds of: (1) abandonment by willful failure to support and willful failure to visit, as defined at Tenn. Code Ann. _ 36-1- 102(1)(A)(i); and (2) persistence of conditions as set out at Tenn. Code Ann. _36-1- 113(g)(3). Finding that there is clear and convincing evidence in the record to support these grounds, as well as clear and convincing evidence that termination of appellant's parental rights is in the best interests of this child, we affirm.

Roland David Sheppard v. Wanda Elizabeth Sheppard
M2009-00254-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Laurence M. McMillan

The trial court granted the husband a divorce after a marriage of twenty-two years on the ground of the wife's inappropriate marital conduct. The court also divided the marital property and awarded the wife transitional alimony of $150 per month for 24 months. The wife argues on appeal that the trial court should have awarded her alimony in futuro of $2,240 per month. The husband argues that it was an error to award the wife any alimony at all. We affirm the award of transitional alimony, but modify it by increasing it to $350 per month.

In Re: Aleksandree M. M. and Marie J.M.
M2010-01084-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor J. B. Cox

Mother of four children appeals the termination of her parental rights to two of those children on the ground that she failed to protect them from severe child abuse. Finding the evidence of record to clearly and convincingly support the ground for termination and that termination was in the children's best interest, we affirm the judgment.

East Tennessee Grading, Inc., vs. Bank of America, N.A., et al
E2009-02250-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor W. Frank Brown, III

Plaintiff brought this action to enforce a lien for excavation and road work done in a residential development, because the owner had not paid for the construction work performed. An agreed judgment was entered as to plaintiff's claims against defendant, Seven Lakes Development, awarding judgment against that defendant for materials and labor performed on the property. One parcel of property, however, totaling 6.36 acres was owned by defendants Coughlins, which was subject to a deed of trust in favor of Bank of America. The trial court held that Bank of America had priority over plaintiff as to 1.9 acres because plaintiff had not filed its Notice of Lien timely to maintain priority over the subsequent owners pursuant to Tenn. Code Ann. _ 66-11-112. The trial court also held that plaintiff had priority over Bank of America as to 4.46 acres because plaintiff's Notice of Lien was filed before the Amended Deed of Trust in favor of Bank of America was filed. On appeal, we affirm the Judgment of the trial court.

Sheila Brown v. Rico Roland
M2009-01885-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Thomas Brothers

The matters at issue pertain to the rights and responsibilities of the parties under the underinsured motorist provisions of Plaintiff's automobile insurance. Plaintiff, who was involved in a vehicular accident with another motorist, commenced this personal injury action to recover an amount "under $25,000." The only named defendant is the tortfeasor, however, State Farm is an unnamed party. This is due to the fact that plaintiff served timely and proper notice on State Farm of the commencement of this action and that she was asserting an underinsured coverage claim pursuant to Tenn. Code Ann. _ 56-7-1206. Plaintiff subsequently entered into a settlement agreement with the tortfeasor for the tortfeasor's policy limits of $25,000, at which time she properly served notice on State Farm of the proposed settlement and her willingness to enter into binding arbitration with State Farm to settle her claim for underinsured motorist benefits. Thereafter, State Farm filed a motion to dismiss the underinsured claim against it claiming plaintiff was made whole when she agreed to a settlement with the tortfeasor in an amount in excess of her ad damnum and therefore there was no claim to arbitrate. The court granted the motion to dismiss and plaintiff appealed. We have determined the trial court did not err in granting State Farm's motion to dismiss the claim against it because plaintiff sought to recover a judgment in an amount under $25,000 from the tortfeasor and/or State Farm, and plaintiff settled her claim against the tortfeasor for an amount in excess of the ad damnum. Accordingly, we affirm the dismissal of State Farm.

Joanne Alice Brown Stagner v. Phillip Wayne Stagner
W2009-01749-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Martha B. Brasfield

This is a divorce case involving the classification and distribution of marital property. The parties purchased three contiguous lots near the husband's parents in Kentucky, intending to move there after the husband's retirement. The husband's parents financed the purchase of the property. Several years before his anticipated retirement, the husband began building a house on one of the lots. After some time, the wife told the husband that she did not want to move to Kentucky. The parties then transferred title on all three lots to the husband's parents in satisfaction of their debt. Subsequently, the husband completed the construction of the house, and his parents sold the house at a profit. The husband's parents then sent the husband a check in the amount of the proceeds from the sale of the house minus the parties' debt to the parents. The husband's parents retained title in the other two lots. Soon after that, the parties filed cross-petitions for divorce. In the divorce decree, the trial court held that the check paid to the husband constituted marital property, and that the other two lots held by the husband's parents were subject to a resulting trust in favor of the husband and the wife. The trial court also awarded the wife rehabilitative alimony and a percentage of the retirement benefits received by the husband after the divorce petitions were filed. The husband now appeals. We reverse the trial court's imposition of a resulting trust over the two lots held by the husband's parents, and affirm the remainder of the trial court's decision.

Lanis Karnes v. Madison County, et al.
W2009-02476-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge R. Lee Moore, Jr.

This appeal concerns the liability of a county. The county filed a motion to dismiss the plaintiff's complaint for failure to state a claim, arguing that the public duty doctrine barred the plaintiff's claim. The trial court granted the motion to dismiss upon concluding that the public duty doctrine applied and that its special duty exception was inapplicable. After examining the complaint in accordance with the liberal standards required at this stage of the proceedings, we find that Plaintiff's allegations sufficiently state a cause of action to withstand the motion to dismiss.

City of Pulaski v. Albert M. Morris, Jr. and Judith L. Morris
M2010-00047-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Robert L. Holloway, Jr.

In a condemnation proceeding, landowners objected to the admission of expert testimony that was based in part on an appraisal of the land 14 months prior to the condemnation. They also objected to the admission of an affiliate broker's opinion of value. The trial court allowed the testimony, the jury returned a verdict, and a motion for new trial filed by landowners was denied. On appeal, landowners assert that both experts' opinions of value were inadmissible, that the trial court failed to properly review the motion for new trial, and that the jury's verdict was not supported by any material evidence. Finding no error, we affirm.

Floyd L. Fletcher, et al vs. Ashley R. White, et al.
E2009-01199-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Dale Workman

Mr. Fletcher, who was injured in an automobile accident involving an uninsured motorist, sued the insurance company after it denied uninsured motorist benefits under his towing policy. Insurance company filed a motion for summary judgment claiming that the towing policy did not provide uninsured motorist coverage for Mr. Fletcher's accident because it involved a non-covered auto. After a hearing on the motion, the trial court granted summary judgment to the insurance company. Mr. and Mrs. Fletcher appeal. We affirm.

Kimberly Smith vs. Thomas Smith
E2009-01593-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

A few years after the parties divorced, the mother filed a Petition for Full Custody of the children and child support. Following long delays, the trial court gave the mother custody of the remaining minor child and ordered child support for the child from the father from the date of the hearing forward. The mother appealed, insisting that retroactive child support should be granted to the date of filing the petition. We hold the child support should be granted from the date of the filing of the Petition and remand for a determination of that back child support.

Dexter Ridge Shopping Center, LLC v. David N. Little, Karen Little, and Little Antiques, LLC, d/b/a Antique Market of Cordova and American National Property & Casualty Company and Reid Jones d/b/a Reid Jones Insurance Agency
W2009-01798-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Kenny W. Armstrong

This appeal involves service of a garnishment. In the underlying action, the plaintiff recovered a judgment against the defendant debtor. At the time, the judgment debtor was an independent insurance agent located in Tennessee. In a discovery response, the debtor stated that he worked for a Missouri insurance company, but he listed his Tennessee office as his work address. The plaintiff issued a garnishment to the Missouri insurance company as the garnishee, and had it served at the Tennessee address, where it was accepted by a front-desk employee. The employee gave the garnishment to the debtor. Therefore, the garnishee did not receive the garnishment and did not respond. The trial court issued a conditional judgment and scheduled a hearing for the garnishee to appear and show cause why the conditional judgment should not be made final. After the hearing, the trial court found that the employees at the Tennessee insurance office were not agents of the garnishee Missouri company, and that service of the garnishment was not effective. The trial court therefore vacated the conditional judgment. The plaintiff-garnishor now appeals. We affirm and agree with the trial court that service of the garnishment was not effective.

Marla Dean Evans v. Johnny Howard Evans
M2010-00079-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Thomas W. Graham

Counsel for plaintiff in damage suit appeals award of sanctions imposed pursuant to Tenn. R. Civ. P. 11 against her. Finding that the trial court did not abuse its discretion the award is affirmed.

George Campbell, Jr. v. Tennessee Department of Correction, et al.
M2009-02218-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Stella L. Hargrove

This appeal involves a petition for writ of certiorari filed by a prisoner seeking review of a disciplinary conviction. The respondents did not oppose the issuance of the writ, and a certified copy of the record of the disciplinary proceedings was filed with the trial court. The respondents filed a motion for judgment on the record. After review of the parties' briefs and the administrative record, the trial court granted the respondents' motion for judgment on the record. The petitioner inmate appeals. We affirm.

English Mountain Retreat, LLC, et al vs. Susanne Crusenberry-Gregg, et al
E2009-02148-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Harold Wimberly, Jr.

Plaintiffs purchased property insurance from defendants. The insured building was destroyed by a fire and plaintiffs received the full coverage limit. Nonetheless, plaintiffs sued defendants claiming that the building was under-insured and that they relied on the defendants' negligent advice. A jury trial occurred and after the close of plaintiffs' proof, defendants moved for a directed verdict on all issues. The trial court granted defendants' motion and dismissed plaintiffs' complaint. Plaintiffs appeal. We find that a directed verdict is inappropriate because plaintiffs presented sufficient facts for a jury to decide liability. Therefore, we reverse the trial court's order and remand for a full trial.

Roy L. Crawford v. Tennessee Department of Correction, et al.
M2009-00439-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This appeal concerns a post-judgment motion. The petitioner is an inmate in the custody of the respondent department of correction. The petitioner inmate filed a complaint for declaratory judgment regarding the department of correction's denial of his request for a parole hearing. The department answered the complaint, and no action was taken on the case by either party in the two years that followed. The trial court entered a case management order, requiring the petitioner inmate to set a date for a final hearing within a given time. After the petitioner inmate failed to do so, the trial court dismissed the petitioner's complaint without prejudice. Nearly a year later, the petitioner filed a motion for summary judgment. Ultimately, the trial court concluded that it lacked subject matter jurisdiction to consider the motion because it was filed after the order of dismissal became final. The petitioner appeals. We affirm.