COURT OF APPEALS OPINIONS

In Re: Estate of Paul Harris Nelson, et al.
W2006-00030-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor James F. Butler

This is an action in conversion, fraud, and breach of fiduciary duty instituted by will beneficiaries against the decedent’s sister, who was also the Executrix of his estate. The threshold issue involves subject matter jurisdiction for this appeal. Although a recent amendment to the Tennessee Code would place appellate jurisdiction for this case in the trial court, we hold that a more specific, prior private act conferring appellate jurisdiction on this Court controls. The second, and pivotal, issue in this dispute involves the ownership of four certificates of deposit (CD) that were purchased by Mr. Paul Harris Nelson (Mr. Nelson), the decedent, and that were later claimed and cashed by Ms. Margie Little (Ms. Little), the Defendant/Appellee, just prior to the opening of the estate. The Estate of Mr. Nelson (the Estate) appeals the lower court’s ruling that Ms. Little owned the CDs at the time of Mr. Nelson’s death because the siblings held the CDs jointly with a right of survivorship. Thus, the Estate also appeals the court’s findings of no conversion, fraud, or breach of fiduciary duty by Ms. Little with respect to the CDs.  We affirm.

In Re Adoption of Jordan S. Hayes (D.O.B. 01/10/99)
W2006-00156-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor W. Michael Maloan

This is an adoption case involving a child support arrearage. By consent of the biological father, the trial court entered an order terminating the father’s parental rights and permitting the husband of the biological mother to adopt the child. The order further stated that the biological father had satisfied all child support obligations. The State intervened in the action and filed a motion to alter or amend the order to include a provision stating that the father still owed child support. At a hearing, the mother stated that she had no desire to collect any child support arrearages from the father. In light of this, the trial court amended its order to reflect that the biological father owed the State a reduced child support arrearage, but owed nothing to the mother. The State now appeals, arguing that the trial court’s order constituted an impermissible retroactive modification of the original child support order. We modify the order, finding that the trial court’s order was, in fact, a retroactive modification of a valid child support order.

Cedric L. Coppage v. Veronica Y. Green
W2006-00767-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Special Judge George E. Blancett

This is a petition to set aside an order establishing parentage. The child at issue was born in 1990. In 1997, the juvenile court entered an order establishing the petitioner as the child’s father. Eight years later, the petitioner took an independent DNA test which indicated that he was not the child’s biological father. The petitioner then filed a petition to disestablish his parentage of the child, attaching the results of the independent DNA test to his petition. After a hearing, the juvenile court referee recommended court-approved DNA testing to prove or disprove the petitioner’s parentage. This recommendation was confirmed by the juvenile court judge. The respondent mother filed a motion for a rehearing before the juvenile court judge. The motion was granted. After a rehearing, the juvenile court judge dismissed the petitioner’s petition for court-ordered DNA testing to determine parentage. The petitioner now appeals. We reverse, determining that relief should be granted under these circumstances, and remand to the trial court for further proceedings.

State of Tennessee ex rel., Elizabeth Wray v. Kelly Collins
W2006-00119-COA-R3-JV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert W. Newell

This appeal involves a series of cases – a paternity action, a dependency and neglect proceeding, and the present case, a petition to establish paternity and set child support. The first paternity suit had been dismissed by the mother after genetic testing had taken place, but before the court entered an order of parentage. During subsequent dependency and neglect proceedings, a grandmother had received temporary custody of the child. Finally, the State of Tennessee filed this case on the grandmother’s behalf to establish paternity and collect child support from the child’s biological father. The father insisted that he had never been properly served in the dependency and neglect proceeding, so the trial court dismissed the State’s petition. For the following reasons, we reverse and remand.

Linus Thornton v. James A. Massey,
W2006-01417-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: C. Creed Mcginley

M. Eileen Lingle v. Fortis Health Insurance Company
E2006-00690-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Frank Brown, III

The Trial Court granted defendant summary judgment on the ground that the medical bills incurred by plaintiff were excluded from coverage under the health insurance provided by defendant. On appeal, we vacate the summary judgment and remand.

Helen L. Bates v. James G. Neeley, Commissioner of The Tennessee Department of Labor and Workforce Development, et al.
M2006-01023-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge Timothy L. Easter

A former employee of the Highland Youth Center appeals the denial of her claim for unemployment benefits. The employee was subjected to a severe assault while at work at the youth center. She attempted to return to work after the incident but was unable to remain at work due to the severe psychological trauma associated with the assault at the workplace. She filed a claim for unemployment benefits, which was denied by the Department of Labor, the Appeals Tribunal, and the Board of Review on the ground she did not have “good cause” to terminate her employment. The Chancery Court affirmed the denial of benefits, and this appeal followed. We reverse finding the employee had good cause for terminating her employment at the Highland Youth Center.

Frank H. McNiel v. Susan R. Cooper
M2005-01206-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Richard H. Dinkins

Ronald Ray Stoner v. Tiffany Denise Stoner Morgan
M2007-00474-COA-R9-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Barry R. Brown

City of Memphis v. The Civil Service Commission, et al.
W2006-01561-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor D. J. Alissandratos

This administrative appeal arises out of the termination of Officer Lenora Armstead’s (Officer Armstead) employment with the Memphis Police Department (the Department). The City took this action as a result of a public altercation between Officer Armstead and another off-duty police
officer. It found that Officer Armstead had violated DR-104 Personal Conduct and terminated her employment because of this violation and other disciplinary proceedings previously brought against her. The Civil Service Commission of the City of Memphis (the Commission) reversed the City’s decision to terminate her employment because it found the action to be unreasonable. The City appealed to Shelby County Chancery Court, where the chancellor reversed the Commission’s decision, finding it to be arbitrary and capricious. We find that the City proved a violation of DR-104 but that the Commission’s decision was supported by substantial and material evidence. We reverse and remand.

Martin Moreno v. Jose Servando Ruiz, et al.
M2005-02223-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge David Randall Kennedy

A small contractor entered into an oral agreement to install brick facades on new houses in a Mt. Juliet subdivision. He did brickwork on eleven houses pursuant to the agreement, and was paid in cash for the work on an irregular basis. Because he believed the other party to the agreement did not pay him in full, he walked off the job and brought suit for breach of contract. A bench trial in Circuit Court ultimately resulted in a net judgment for the plaintiff in the amount of $397.50. He argued on appeal that the evidence showed that he was entitled to receive over $10,000 on his claim. We affirm the trial court.

Victoria Hinkle v. The Estate of Jack Lyle Hartman, et al
E2006-01052-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Judge W. Dale Young

At the time the deceased and plaintiff divorced, the deceased agreed to maintain the plaintiff as beneficiary of his life insurance policy with his employer. He subsequently left the employer, but returned to the employer and was issued another policy of life insurance on being re-employed, but made his then wife and his two children beneficiaries of that policy. Upon his death, plaintiff sued to enforce the terms of the Marital Dissolution Agreement, but the Trial Court refused and dismissed plaintiff’s action. On appeal, we hold that plaintiff is entitled to benefits under the second policy to the extent of the benefits agreed to under the terms of the first policy.

Frank Shipp v. Ditch Witch Equipment of Tennessee, Inc.
M2005-02354-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Royce Taylor

This is a breach of contract case. The defendant equipment company sells and leases underground construction equipment. The plaintiff worked for the defendant company as an outside salesman with a sales territory. The plaintiff salesman operated under a verbal employment agreement and was paid a minimum weekly salary plus commissions. During his employment, the plaintiff actively marketed equipment to a customer in his sales territory, and the customer ultimately signed a lease for several pieces of equipment. Soon after the lease was executed, the plaintiff quit working for the defendant. Subsequently, he sought his commissions due on the lease. The defendant equipment company refused to pay the commissions, claiming that the plaintiff salesman was not due any commissions on the lease because he quit work before the customer made any payments on the lease. The plaintiff filed the instant lawsuit for the commissions. After a bench trial, the trial court held that the plaintiff was entitled to commissions on the lease, but only with respect to one of the pieces of leased equipment. The plaintiff now appeals, arguing that he is entitled to commissions on two other pieces of equipment. We reverse, finding that the evidence preponderates in favor of a finding that the plaintiff was entitled to commissions for all three pieces of equipment.

Mary Kay Thompson v. Clayton Thompson, Jr.
M2005-02762-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Timothy L. Easter

This is a post-divorce proceeding wherein Appellee sought to enforce the provisions of a marital dissolution agreement and Appellant sought to modify alimony and child support provisions because of an alleged change of circumstances. The trial court ruled that Appellant was intentionally underemployed and attributed income that was comparable to his income at the time of divorce. Finding that the evidence in the record does not support a finding of willful underemployment, we vacate the judgment of the trial court and remand the case for further proceedings.

Linda Riggan Wood, et al. v. Terry Riggan Lowery, et al. - Concurring
W2006-00901-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Walter L. Evans

I concur fully in the majority opinion in this case, with the exception of the majority’s discussion of one issue. The majority notes that the executrix, Ms. Wood, was bound “to the exercise of that degree of diligence, prudence, and caution which a reasonably prudent, diligent, and
conscientious business [person] would employ in the management of [their] own affairs of a similar nature.” In re Estate of Inman, 588 S.W.2d 763, 767 (Tenn. Ct. App. 1979). The majority finds that the trial court implicitly determined that Ms. Wood acted in accordance with this standard, insofar as she was attempting to recoup the original investments made by her father in Revelation and Lowery Riggan Company. It is unclear whether the majority holds that the evidence
preponderates in favor of this implicit finding, because the majority then goes on to note that, in order to collaterally attack an estate that has been closed without appeal, Ms. Lowery would be required to make allegations in the nature of fraud, mistake, or the like, and no such allegations were made.¹

To the extent that the majority’s opinion can be read to find that the trial court correctly found that Ms. Wood acted in a reasonably prudent manner, I must disagree. Certainly she acted in good faith, and it appears that her investment decisions were similar to those made by her father prior to his death. But her investment decisions were nevertheless unwise and imprudent. The fact that the Decedent invested heavily in Revelation and Lowery Riggan Company does not authorize the executrix to continue such unwise investments with the estate assets entrusted to her care.

Nevertheless, I concur because, as noted by the majority, Lowery’s allegations are insufficient to collaterally attack an estate that has been closed.

¹“An order or decree rendered on the final settlement of a personal 1 representative is not subject to collateral attack, except where there is fraud, misrepresentation, accident, or mistake, or where the court acted without jurisdiction or the order or decree was wholly void.” 34 C.J.S. Executors and Administrators § 868 (1998) (footnotes omitted).

Linda Riggan Wood, et al. v. Terry Riggan Lowery, et al.
W2006-00901-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Walter L. Evans

Appellant challenges the trial court's judgment dismissing Appellant's claims against the Executrix of her father's estate and enforcing the agreement made by the Appellant with her siblings to share equally in the net assets of her father's estate.  We affirm.

Jennifer Dunn, Individually and as the natural mother and next of kin to Jeremias Dunn, Deceased v. Amelia Davis
W2006-00251-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Karen R. Williams

This appeal arises from a wrongful death action tried by a jury. The jury allocated 51% fault to Defendant and assessed total damages in the amount of $1,250,000. The trial court denied Defendant’s motions for new trial, remittitur, and judgment in accordance with motion for directed verdict; entered judgment against Defendant in the amount of $637,500; and awarded Plaintiff discretionary costs. Defendant appeals. We affirm in part, reverse in part, and remand with suggestion of remittitur.

Cracker Barrel Old Country Store, Inc. et al., v. Richard Epperson, et al.
M2006-02424-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Carol L. McCoy

In denying a request for attorneys’ fees in an action involving the enforcement of a declaration of easements and restrictions, the trial court found the phrase “costs and expenses” in that declaration does not include recovery of attorneys’ fees. The trial court is affirmed.

Christin M. Johnson, LPN v. Tennessee Board of Nursing
M2005-02129-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Carol L. McCoy

A formerly licensed practical nurse appeals a default judgment revoking her license by the Board of Nursing and claims, inter alia, that the Board failed to comply with applicable notice requirements. Because the administrative record does not reflect consideration of the rule governing proceedings by default, we reverse.

Anna Lou Williams, Plantation Gardens, D/B/A Tobacco Plantation and Beer Barn D/B/A Jim's Flea Market v. Gerald F. Nicely
W2005-02599-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Walter L. Evans

This is a declaratory judgment action against the State regarding the use of an easement. The plaintiffs own a parcel of land next to a highway. By deed, the plaintiffs' predecessor in title granted a perpetual easement for “highway purposes” to the State for the Department of Transportation in the strip of land immediately next to the highway. Prior to this litigation, the Department of Transportation asked the plaintiffs to remove advertising signs posted on the land next to the highway because the signs encroached on the State's highway “right-of-way.” In response, the plaintiffs filed a declaratory judgment action against the State, seeking a declaration that the easement for “highway purposes” did not constitute a “highway right-of-way,” and that the State had no authority to require removal of the signs. The trial court ruled in favor of the plaintiffs, declaring that the deed conveyed to the State only an easement of ingress and egress and did not grant the right to use the land as a “highway right-of-way.” The defendant now appeals. We vacate the trial court's judgment and dismiss the case, finding that the plaintiffs’ declaratory judgment action is barred by the doctrine of sovereign immunity.

Derek Davis v. Shelby County Sheriff's Department
W2006-00980-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Arnold B. Goldin

This appeal involves a writ of certiorari. The plaintiff, a former deputy sheriff for the County, was discharged. After a hearing, the County administrative board upheld the County’s decision to terminate the plaintiff’s employment. The plaintiff then filed a petition for writ of certiorari in the chancery court, seeking judicial review of the board’s decision. The plaintiff then filed a motion to amend the petition to add claims. The trial court never ruled on the motion to amend. After a hearing on the petition, the trial court affirmed the decision of the board. The plaintiff deputy sheriff appeals. We dismiss the appeal, finding that there is not a final judgment over which this Court may exercise appellate jurisdiction.

Parris Roofing & Sheetmetal Co. v. SCR Electric, Inc.
E2006-0263-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor W. Frank Brown, III

Parris Roofing & Sheetmetal Co. (“Plaintiff”) sued SCR Electric, Inc. (“Defendant”) seeking, in part, payment for work Plaintiff had done pursuant to an alleged agreement between Plaintiff and Defendant. The case was tried without a jury and the Trial Court entered an order finding and holding, inter alia, that Plaintiff and Defendant did not have an enforceable agreement, but that Plaintiff was entitled to recover $3,613.50, from Defendant in quantum meruit. Plaintiff appeals to this Court claiming that the Trial Court erred in finding that the reasonable value of the work performed was only $3,613.50. We affirm.

Kim Brown v. William Shappley, M.D.
W2006-01632-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Jerry Stokes

We affirm the trial court’s award of summary judgment to Defendant physician in this medical malpractice action.

Tenn-Fla Partners v. Henry C. Shelton, III, et al.
M2006-00945-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge John R. McCarroll, Jr.

Client appeals the dismissal of its legal malpractice action against the attorneys who represented it in a bankruptcy proceeding. The trial court determined that the action was barred by the Statute of Limitations and that there were no grounds upon which the trier of fact could find that the loss alleged by the client was caused by any negligent act or omission of the defendants. We affirm.

Garnett Lynn Goforth, R. Lynn Goforth and wife, Susan D. Goforth v. State of Tennessee
E2006-00926-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Vance W. Cheek

Plaintiffs, parents and son brought suit against the University for injuries to the son sustained while practicing football, charging the coaches were negligent in allowing practice to continue under dangerous conditions. The Commissioner ruled in favor of the University, except as to the dispute over insurance, and awarded plaintiffs $3,600.00 under the contract of insurance with the University.