COURT OF APPEALS OPINIONS

Demetrica Bell v. Cathy Ann Bell
M2004-01975-COA-R3-CV
Authoring Judge: Judge Patricia Cottrell
Trial Court Judge: Chancellor Carol A. Catalano

Wife appeals from the trial court’s final decree of divorce, alleging various deficiencies in the proceedings. Based on the limited record before us, which includes Wife’s specific waiver of most of the issues she now raises, we affirm the trial court.

James William Taylor v. George Little
M2005-01615-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Appellant and inmate in the Department of Correction filed a declaratory judgment action asserting various deficiencies in the judgment of the trial court convicting him of first degree murder and sentencing him to life in prison. He asserts that the murder conviction should not have been used in the calculation of his prison sentence. The trial court granted summary judgment to Defendant, George Little, the Commissioner of Correction. We affirm the judgment of the trial court.

Memphis Light, Gas & Water Division v. Tommy Carl Starkey
W2006-01089-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Robert L. Childers

This case involves wrongful interference with an easement. The plaintiff utility operates an underground gas transmission line. The utility had an easement for the gas line, running along thenorth edge of a large tract of real property. For the gas line to operate safely, it needed sufficient soil both on top of the pipeline and on each side of the pipeline. The defendant developer acquired the real property, subject to the easement for the pipeline. The developer then sought to develop the real property. In May 2002, the defendant developer began excavating large amounts of dirt from within the easement site without proper authorization from the utility. Despite the utility’s repeated demands to stop, the developer continued the excavation. Only when the utility threatened to have the developer arrested did he finally stop excavating dirt from around the pipeline. By this time, there was so little dirt surrounding the pipeline that there was serious danger to the public, and the utility was required to engage in immediate corrective work. The utility hauled in and spread 21,467 yards of dirt, restoring the easement site to a safe condition. The utility then filed suit against the developer, seeking compensatory and punitive damages. After a bench trial, the trial court awarded the utility compensatory damages and punitive damages. The defendant developer now appeals. We affirm, finding ample evidence to support the award of damages.

Doris Jones and Billy J. Jones v. Susannah P. Johnson
W2006-01859-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Roger A. Page

This is a personal injury case involving the Tennessee suspension statute. On August 27, 2003, the defendant rear-ended the plaintiff’s vehicle. On August 23, 2004, the plaintiffs filed a lawsuit
against the defendant for damages arising out of the accident. On the same date, a summons was issued to the defendant at her last known address in Tennessee. A few days later, the summons was returned with a notation indicating that the defendant had moved to Georgia. The plaintiffs failed to renew process within one year of the original date of service. Finally, in March 2006, an alias summons was issued and served on the defendant in Georgia. The defendant filed a motion for summary judgment based on the one-year statute of limitations. The trial court granted the defendant’s motion. The plaintiffs now appeal, arguing that the statute of limitations was tolled pursuant to the suspension statute, T.C.A. § 28-1-111, because the defendant lived in another state when suit was filed. We affirm, concluding that the suspension statute is inapplicable in this case.

Eric Todd Jackson v. Carrie Gasaway
M2004-02285-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge Ross H. Hicks

Inmate appeals the dismissal of his "Personal Injury Suit" against the attorney who represented him in a previous criminal matter. The trial court dismissed the action finding the complaint does not state a cause of action due to the lack of any allegation of severe mental injury and that any action arising out of alleged misconduct occurring on March 9, 2001, would be barred by the one-year statute of limitations. Finding the inmate's suit wholly without merit, we affirm.

William L. Thompson v. Memphis Light, Gas And Water
W2006-01972-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor D. J. Alissandratos

The trial court awarded summary judgment to Plaintiff, former employee of Defendant Memphis Light Gas and Water Division (“MLGW”), upon determining that Plaintiff was entitled to severance benefits under “personnel policy 22-25" because revocation of the policy by MLGW’s Board was negated due to violations of the Open Meetings Act. We reverse the award of summary judgment to Mr. Thompson and award summary judgment to MLGW on other grounds.

Gladys Tuturea, Individually and as representative of George Tuturea v. Tennessee Farmers Mutual Insurance
W2006-02100-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Julian P. Guinn

This lawsuit concerns coverage for real and personal property under three insurance policies issued by Defendant. The trial court awarded partial summary judgment to both parties and entered final judgment pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. Both parties appeal. We vacate the trial court’s order entering final judgment pursuant to Rule 54.02 and remand.

County of Shelby, A Political Subdivision of the State of Tennessee v. John R. Tompkins, et al.
W2006-01433-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor D. J. Alissandratos

In this administrative appeal, a Shelby County firefighter challenges the judgment of the lower court reinstating the Fire Department’s decision to terminate his employment for a conceded violation of the county residency requirement set forth in the Shelby County Charter. The Shelby County Civil Service Merit Board (Merit Board) had modified the Fire Department’s sanction from termination to suspension without pay for the time of suspension already served. The trial court, however, ruled that the Merit Board exceeded its authority by failing to heed the Shelby County Charter’s provision mandating termination. The Appellant argues that the Charter does not mandate termination; that, even if it does, he had moved back to Shelby County at the time of his termination and should not have been discharged; and that, alternatively, he is entitled to a remand to advance an equal protection argument because he was unfairly prevented from doing so in the lower court. We affirm.

Danny Ray Meeks v. Claudia Bonnyman
M2006-02657-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Barbara N. Haynes

Petitioner brought an action for mandamus in Circuit Court. The Trial Court dismissed the Petition on the grounds that petitioner did not meet the statutory requirements for maintaining an action. On appeal, we affirm.

Tennie Martin and Roya Mitchell, Co-Personal Representatives of the Estate of Kathryn Martin, deceased, and Tennie Martin and Roy A. Mitchell, et al v. NorFolk Southern Railway Company, et al
E2006-01021-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Circuit Judge Donald R. Elledge

Decedent’s vehicle was struck by defendants’ train at a railroad crossing, resulting in decedent’s death. The Trial Court granted Defendants’ Summary Judgment. The Estate has appealed. We affirm the Trial Court’s Judgment.

Tennie Martin and Roya Mitchell, et al v. NorFolk Southern Railway Company, et al - Dissenting
E2006-01021-COA-R3-CV
Authoring Judge: Judge Charles Susano, Jr.

CHARLES D. SUSANO, JR., dissenting.
I start with an elementary and bedrock principle of Tennessee jurisprudence: when a party
timely files a complaint in circuit court, alleges facts making out a cause of action, and demands a
jury, that party has a constitutional right to have a jury pass upon the merits of its allegations. Tenn.
Const. Art. I, §6. (“That the right of trial by jury shall remain inviolate . . .”). I fully recognize that
a party’s jury demand and its right to pursue its alleged cause of action can be legitimately thwarted
if the party sued can demonstrate, under the rubric of Tenn. R. Civ. P. 56, that it is entitled to
summary judgment. Hence, if the material facts pertaining to a defense are not in dispute and if
those facts show conclusively that the defendant is entitled to a judgment, the plaintiff loses its
constitutional right to a jury trial, its case is over, and the defendant goes away with summary
judgment.

Smith County, Tennessee, and Smith County Highway Department v. Dave Enoch
M2006-01007-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Chancellor C. K. Smith

The operator of an automobile junkyard in Smith County appeals the permanent injunction issued against him by the Chancery Court enjoining him from maintaining an excessive number of inoperable vehicles within one thousand feet of a county road in violation of the Smith County Junkyard Control Act, Chapter 97 of the Private Acts of 1987. The junkyard operator contends the evidence was insufficient to support the findings and conclusions of the trial court. Finding the evidence more than sufficient, primarily due to admissions by the operator of the junkyard, we affirm.

Progressive Casualty Insurance Co. v. Howard D. Chapin and Arthur Blair Samuels and Sabrina D. Ball, as Guardian Ad Litem for Natascha Bouchard
W2006-00531-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Rita L. Stotts

This is an insurance case. The plaintiff insurer issued a policy of insurance for a motorcycle. The
named insured kept the motorcycle at his home, and allowed his adult son unrestricted access to hishome and the motorcycle. The adult son borrowed the motorcycle and drove it to a friend’s house. While there, the adult son let the friend take his minor stepdaughter for a ride on the motorcycle. The friend lost control of the motorcycle and the stepdaughter was injured. The accident prompted the stepdaughter’s biological father to file a petition against his daughter’s mother in chancery court for a change of custody. During the custody dispute, the chancery court appointed both a guardian ad litem and an attorney ad litem for the stepdaughter, and ordered the attorney ad litem to pursue any legal actions on behalf of the stepdaughter for the accident. When the attorney ad litem filed a claim on the stepdaughter’s behalf with the plaintiff insurer, payment was denied. The guardian ad litem then filed a separate tort action against the friend. While the tort action was pending, the plaintiff insurer filed this declaratory judgment action against the named insured and the friend, seeking a declaration that its insurance policy did not cover the friend. The guardian ad litem intervened in this action. After a bench trial, the trial court found that the insurance policy covered the friend for the motorcycle accident, and awarded the guardian ad litem discretionary costs, which included attorney’s fees for the attorney ad litem. The plaintiff insurer now appeals. We reverse the trial court’s decisions on the issue of coverage and discretionary costs, and remand for further proceedings as may be necessary.

Harriet Caci (O’Shields) Rogers v. Scott Allen Rogers
W2006-00858-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge D'Army Bailey

This is a parental relocation case. After the parties separated, the mother and the child moved in
with the mother’s parents in Memphis, Tennessee. Under the parties’ marital dissolution agreement (“MDA”), the mother was designated the primary residential parent for the parties’ child, and the father was granted parenting time every other weekend. Two months after entry of the divorce decree incorporating the MDA, the mother sent the father a letter notifying him of her intent to move to South Carolina with the child. The mother explained that her parents were moving to South Carolina and she wanted to move with them. The father filed a petition in opposition to the mother’s proposed relocation, arguing that the move had no reasonable purpose. After a bench trial, the trial court determined that the mother did not have a reasonable purpose for the move and denied her request to relocate. The mother now appeals. We affirm the trial court’s finding that the proposed relocation did not have a reasonable purpose but remand the case to the trial court for a best interest determination as required pursuant to Tennessee Code Annotated § 36-6-108(e).

Du Sik Lee and Won Jae Lee v. Kenneth R. Davis and Linda P. Davis
W2006-01018-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Karen R. Williams

This is a breach of contract case. The defendants own a commercial building that was seriously damaged by a fire. The plaintiffs entered into a lease-purchase contract with the defendants to acquire the building at the expiration of a ten-year lease. Under the contract, the plaintiffs agreed to renovate the building from the fire damage, consistent with the local city building code and the defendant owners’ approval. After some renovations were made, prior to the expiration of the contractual repair period, the defendants deemed the renovations to be not in compliance with the city code and disapproved them. The defendant owners then declared the plaintiffs to be in breach of the contract and repossessed the property. The plaintiff lease-purchasers sued the defendant owners for breach of contract, claiming that, at the time of repossession, the renovations were not yet completed and that they still had time under the contract to complete them. After a bench trial, the trial court determined that the plaintiffs had breached the contract because the renovations were not in compliance with the city code and did not meet the approval of the defendant owners. The plaintiffs now appeal. We affirm, concluding that the evidence does not preponderate against the trial court’s finding that the plaintiffs breached the contract by making repairs that were not in compliance with the applicable code; the fact that the contractual repair period had not yet expired is immaterial.

Roy Brewer v. Rochelle S. Piggee and heirs and next of kin of Sidney L. Piggee, deceased
W2006-01788-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor D. J. Alissandratos

This is a quiet title action. The plaintiff’s mother owned a parcel of real property. In 1977, the mother executed a deed, conveying the property to one of her sons. Two years later, the plaintiff and her four siblings filed a separate but related lawsuit to set aside the 1977 deed for fraud. In 1985, by court order, the trial court divested the son of sole ownership and created a trust; the son was appointed as trustee for the use and benefit of the mother’s grandchild and the grandchild’s minor children, until the youngest minor child reached the age of majority. In 1986, by court order, the trial court removed the son as trustee and substituted the grandchild in his place. Despite these orders, in 1994, the son executed a deed purporting to convey the property to a third party. In December 2001, the defendants obtained a deed to the property from a successor in interest to the son. Meanwhile, the youngest beneficiary of the trust reached the age of majority. The plaintiff later obtained a warranty deed to the property from the youngest beneficiary and a quitclaim deed from the trustee grandchild and her other four children. The plaintiff then filed this lawsuit and moved for judgment on the pleadings and/or summary judgment. The defendant answered, raising the defense of adverse possession, and filed a motion to dismiss, raising a defense under T.C.A. § 28-2-110. The trial court denied the defendant’s motion to dismiss and granted the plaintiff’s motion for judgment on the pleadings, finding that the 1985 and 1986 orders, as well as the deeds from the grandchild and her five children, established the plaintiff as the rightful owner. The defendant appeals. We affirm in part, reverse in part, and remand the case for further proceedings.

Dyersburg Suburban Consolidated Utility District v. The City of Dyersburg, et al.
W2006-01704-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor J. Steven Stafford

This appeal involves a dispute between a city and a rural water association as to which entity is entitled to provide water service to a proposed subdivision. The rural association has a defined service district in which it is empowered to provide water service, and most of the disputed property lies within the rural association’s boundaries. However, the city annexed the proposed subdivision and now claims that it has the exclusive right to provide water service to the property. The rural association argues that 7 U.S.C. § 1926(b), the Anti-Curtailment Provision of the Consolidated Farm and Rural Development Act, protects its service area and prohibits the city from providing water service to the property. The trial court granted summary judgment to the city, finding the federal statute inapplicable. For the following reasons, we affirm in part, reverse in part and remand for further proceedings.

Ailene Toliver v. Bobby D. Wall, et al.
M2006-00910-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Laurence M. McMillan

Trial court ordered foreclosure on a deed of trust finding obligor failed to prove failure of consideration for the lien. We reverse.

Shanette Collier Chandler v. Kylan Chandler
W2006-00493-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge D'Army Bailey

This appeal arises from a custody dispute involving a minor child. The plaintiff mother filed a complaint for divorce against the defendant father. The parties entered into a marital dissolution agreement as to property and debt division, but they could not come to an agreement on custody for their three-year-old son. A trial was held on the custody and visitation issues. The trial court granted the divorce, named the mother the primary residential parent of the child, and gave the mother full decision-making authority for the child. The parenting plan adopted by the court allowed the father visitation on alternating weekends and holidays, and for four weeks each summer. The trial court awarded the mother the federal tax exemption for the child, as well as $1,500 in attorney’s fees that she incurred litigating the custody issue. The father appeals the trial court’s initial custody decision regarding visitation and decision-making, and the award to the mother of the federal tax exemption and attorney’s fees. We affirm in part, and reverse in part.

Wayne Joiner v. Carole Carter, et al.
M2003-02248-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Marietta M. Shipley

A member of the Sumner County YMCA was terminated from membership in the organization because of inappropriate sexual comments he allegedly directed toward female staff members. He brought pro se lawsuits against numerous employees of the YMCA, first in United States District Court, claiming that their actions had violated his civil rights, slandered him, invaded his privacy, and caused him humiliation and embarrassment. The federal court dismissed his complaint for lack of jurisdiction. A subsequent complaint in the Circuit Court of Davidson County alleging substantially the same facts was also dismissed, for failure to state a claim for which relief can be granted. Undeterred, the plaintiff then filed a nearly identical complaint in the same court. The trial court dismissed the complaint on the basis of res judicata. We affirm the trial court.

Crystal Lashea Caldwell v. Joshua Randall Hill
E2007-00082-COA-R3-JV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge John A. Bell

Father and Mother entered into an agreed permanent parenting plan following their separation in 2004. In 2005, Father requested a modification of the plan to increase his co-parenting time with the parties’ daughter. The petition to modify was filed shortly after the trial court increased his child support from $30 per week to more than $100 per week, and also less than a week after his marriage to his longtime girlfriend. The trial court found that Father’s marriage and the fact that he had quit smoking marijuana were both material changes of circumstance, and that Father should receive equal parenting time with the child. Mother appeals. After careful review, we find that there has been no material change of circumstance justifying reconsideration of the parties’ parenting arrangement. Accordingly, we reverse the trial court’s modification of the parenting plan and remand.

James E. Goodale, et al. v. Charles Langenberg, et al.
W2003-01919-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Kay S. Robilio

Plaintiff purchasers sued Defendant sellers, real estate agent, and real estate company alleging intentional fraud and seeking rescission of a contract to purchase real property and punitive damages.  The matter was tried by a jury, which awarded Plaintiffs rescission of the contract and assessed punitive damages against Defendant real estate agent. The trial court further awarded Plaintiffs discretionary costs and attorney’s fees, which it assessed against Defendant sellers and real estate agent jointly and severally. The jury also determined real estate agent was an independent contractor and that Defendant real estate company was, therefore, not vicariously liable for punitive damages.  Plaintiffs and Defendant sellers subsequently entered into a confidential, sealed settlement under which Plaintiffs received a substantial partial refund of the purchase price and retained ownership of the real property. Defendant real estate agent appeals the award of punitive damages and the award of attorney’s fees. Appellant additionally asserts the post-trial settlement between Plaintiffs and Defendant sellers resulted in an election of damages as a remedy or, alternately, in accord and satisfaction of the judgment. Plaintiffs cross-appeal, asserting the jury verdict finding that Defendant real estate agent was an independent contractor is not supported by the evidence. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Morris Allen Ray v. Jean Ann Ray
M2006-02257-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge Muriel Robinson

Husband appeals the dismissal of his Complaints for Divorce. In a confusing series of pleadings created by Husband, his two separate Complaints for Divorce were dismissed. One was dismissed for failing to pay the filing fee and the other for procedural deficiencies. We affirm the dismissal of the matter in which Husband failed to pay the requisite filing fee. We, however, reverse the dismissal of the first Complaint for Divorce, which was dismissed for alleged procedural deficiencies, and remand for further proceedings.

John Ruff v. Raleigh Assembly of God Church, Inc.
W2006-01255-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Donna M. Fields

On remand pursuant to Tennessee Code Annotated § 27-3-128, the trial court awarded summary judgment to Defendant with respect to Plaintiff’s claim for assault. We affirm.

Smith Brothers, Inc. v. Union City Insurance Agency, Inc., et al.
W2006-02097-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Robert L. Childers

The trial court awarded summary judgment in favor of Defendants in this negligence action. We affirm.