COURT OF APPEALS OPINIONS

Sandra Kaye Kemp Parish, et al., v. Jerry Donald Kemp, et al.
W2003-01652-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Ron E. Harmon

This appeal arises out of a complaint filed by Appellants seeking to invalidate certain inter vivos
transfers made by Decedent as well as the Wills executed by Decedent while living with Appellees. After a hearing in which a jury received evidence from numerous witnesses and exhibits, Appellants sought a directed verdict on whether, as a matter of law, the burden to prove the validity of the Wills and the inter vivos transfers shifted to Appellees. The trial court denied this motion, and the jury returned a verdict in favor of Appellees, upholding Decedent’s Last Will and Testament and the inter vivos transfers. Review by this Court is sought by Appellants, and, for the following reasons, we reverse.
 

In Re F.R.R., III
M2004-02208-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Alfred L. Nations

This appeal involves the termination of a biological father’s rights to his non-marital child. When the child was almost five years old, his mother and her husband filed a petition in the Williamson County Juvenile Court seeking to terminate the biological father’s parental rights and to adopt the child. Following a bench trial, the juvenile court determined that the biological father had abandoned the child by willfully failing to visit him and that terminating the biological father’s parental rights would be in the child’s best interests. Accordingly, the court terminated the biological father’s parental rights and approved the adoption. The biological father has appealed.  We have determined that the record contains clear and convincing evidence that the biological father abandoned the child and that terminating the father’s parental rights would be in the child’s best interests.

Bernadette Benson v. Nathan Berryman, et al.
W2004-00489-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge James F. Russell

This appeal arises out of an action by Appellant for a claim of negligence. After the close of
Appellant’s proof, Appellee moved for involuntary dismissal based on the lack of evidence
concerning the actions of the emergency vehicle involved in the automobile accident. The trial court granted the motion on this basis, and Appellant now seeks review by this Court. We affirm.
 

Union County Education Association v. Union County Board of Education and Dr. James Pratt, Superintendent of the Union Cty Schools
E2004-00820-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Billy Joe White

We dismiss this appeal from a granting of summary judgment because the appeal was not from a final judgment and the issues are moot.

Richard D. Vatt, et al. v. A.L. James d/b/a A.L. James Construction Company
E2004-00785-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Jacqueline E. Schulten

This case involves the alleged breach of a real estate sales contract. The plaintiffs argue that the defendant home builder is in breach of contract because he refused to sell them the house contracted for unless, in addition to the price stated in the contract, they paid him for costs attributed to changes in construction. None of these changes were implemented pursuant to written change orders as required under the contract. The builder countersued arguing that the changes for which he sought payment were agreed to orally after the contract was executed, that the written change order requirement of the contract was waived, and that the plaintiffs breached the contract by refusing to pay him the original contract price, plus the amount attributed to the changes. The trial court entered judgment in favor of the defendant. We affirm in part, reverse in part and remand.

Christa A. Avenell v. James Allen Gibson
E2004-01620-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

Christa A. Avenell,¹ sometimes referred to herein as “the plaintiff,” brought this action against James Allen Gibson (“the creditor”), seeking to recover funds taken out of the Avenells’ two joint accounts by their bank in response to a levy of execution. The trial court held that the 1988 amendment to Tenn. Code Ann. § 45-2-703 (2000) changed the law with respect to bank accounts held by individuals as tenants by the entirety; that Mrs. Avenell failed to prove she was entitled to the levied upon funds; and that the creditor was entitled to retain the funds paid into court by the Avenells’ bank. The plaintiff and her husband appeal. We reverse.

Christa A. Avenell vs. James Allen Gibson - Dissenting
E2004-01620-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

I agree with the majority opinion’s analysis until it undertakes consideration of the 1988 amendment to Tenn. Code Ann. § 45-2-703(a). As quoted in the majority opinion, the amendment states:

Any balance so created, including, without limitation, any balance held by spouses, shall be subject to assignment by, or the claim of any creditor of, either depositor, as if such depositor were the sole owner of the funds; provided that is such creditor realizes its claim by any means other than enforcement of an assignment, pledge, or the grant of a security interest made by any one (1) of such depositors, any other depositor not indebted to the creditor may, by commencing a separate action against the creditor, establish such rights as that depositor may have in the funds.

In Re: Estate of Billy F. Hawk, Jr.
E2004-00877-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor W. Frank Brown, III

This case involves a petition filed by the co-executors of the Estate of Billy F. Hawk, Jr. to approve a sale of real estate partially owned by the Estate. The issue presented is whether the trial court should have approved the private sale. The trial court held that the proposed sale was not in the best interest of all the beneficiaries of the Estate. The proposed buyer appeals. We hold that the trial court’s decision was not contrary to the preponderance of evidence, nor was it arbitrary or capricious, and therefore, affirm the trial court’s judgment.

Deborah Kay Parker Hoxit Ohme v. Frderick Herman Ohme, IV
E2004-00211-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Thomas R. Frierson, II

This is a divorce case. The trial court granted Deborah Kay Parker Hoxit Ohme ("Wife") a divorce from Frederick Herman Ohme, IV ("Husband"), divided the parties' marital property and debts, and awarded Wife transitional alimony of $500 per month. In addition, the court approved Wife's parenting plan, in which she was designated as the primary residential parent of the parties' child, and ordered Husband to pay child support of $854 per month. Husband appeals the granting of the divorce to Wife, the division of debt, the award of alimony, and the trial court's decree regarding responsibility for transporting the parties' child to and from visitation. We affirm.

Allstate Insurance Company v. Robert E. Watson
M2003-01574-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Allstate Insurance Company paid a fire loss to the landlord then brought an action against the tenant asserting subrogation rights. The trial court held the tenant to be blameless as to the fire but found him liable under the terms of the lease, which provided that the tenant would be "responsible for all damages to the apartment, intentional or non intentional". Since we find the tenant to be an additional insured under the Allstate policy, no subrogation rights exist, and we reverse the trial court.

Margie Marie Lynn, et. al. v. Expediters Express, Inc., et. al.
M2003-01777-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Carol L. Soloman

Plaintiff sued her employer for misrepresentation relating to health insurance coverage and sought to recover amounts incurred by her husband for medical bills. The trial court found for plaintiff awarding her treble and punitive damages. We reverse the trial court's finding of treble and punitive damages and affirm the trial court's award of a refund to plaintiff for amounts contributed as premiums.

In Re: A.R.G.
M2004-00894-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Betty Adams Green

The trial court terminated the parental rights of both parents of A.R.G., DOB 12-26-2000. Only Mother, C.S., appeals. Grounds for termination were substantial noncompliance with a permanency plan and failure to remedy conditions in her life permitting the child's return in the near future. We affirm the action of the trial court.

In Re: B.L.R. (D/O/B 7/18/98) and J.F.R. (D/O/B 7/18/98)
M2004-00915-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Buddy D. Perry

This is a termination of parental rights case wherein J.R.R., who is neither the biological father of the twins nor the husband of the mother of the twins, resists the termination of his parental rights. The trial court terminated his parental rights, and we affirm the judgment.

In Re: M.O.
M2004-01602-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Buddy D. Perry

This appeal involves the termination of a biological father's parental rights with regard to his nine-year-old daughter. After determining that the child had been sexually abused by her father, the Tennessee Department of Children's Services filed a petition in the Circuit Court for Grundy County seeking to terminate the father's parental rights. Following a bench trial, the trial court determined that the father had committed severe child abuse and that his daughter's interests would be best served by terminating his parental rights. The father asserts on this appeal that the Department failed to present clear and convincing evidence that he had committed severe child abuse. We have determined that the record contains clear and convincing evidence that the father committed severe child abuse and that terminating his parental rights is in his daughter's best interests.

Kevin K. McCrary v. City of Memphis
W2004-01840-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge D'Army Bailey

City of Memphis challenges judgment of trial court finding the city liable, under the Governmental Tort Liability Act, for negligence of a police officer that proximately caused injuries to a criminal suspect who was being placed under arrest. City contends that the trial court erred in admitting into evidence the statement of police officer taken during a police department internal investigation; in finding that the officer’s actions were negligent instead of intentional; and in failing to apply properly the correct standard of care. Finding no error, we affirm the judgment of the trial court.

Deborah Shorter v. The Tennessee Department of Children's Services, et al.
M2003-02713-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Jim T. Hamilton

A grandmother, who lost custody of her grandchildren in Juvenile Court proceedings, sued the Department of Children's Services ("DCS") and its employee in Circuit Court alleging defamation. The trial court dismissed the suit based upon immunity. We affirm the dismissal of DCS and affirm the employee's dismissal on alternative grounds.

Denise Wassom vs. State Farm Mutual Automobile Insurance Co.
E2004-00098-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Richard E. Ladd

Denise Wassom ("Plaintiff") loaned her car to her ex-boyfriend who then had a single-car accident while making a beer run. Plaintiff's vehicle was a total loss. Fearing that her ex-boyfriend might be arrested for DUI, Plaintiff reported to the police that her car had been stolen. Plaintiff's vehicle was insured through State Farm Mutual Automobile Insurance Company ("State Farm"). Plaintiff also reported to State Farm that her car had been stolen. Approximately two weeks into State Farm's investigation, an adjustor for State Farm interviewed the witnesses whom Plaintiff claimed to have been with at the time her vehicle was stolen. Immediately after these interviews, Plaintiff "came clean" and told State Farm the truth. State Farm denied Plaintiff's claim and Plaintiff filed suit claiming State Farm was in breach of contract. State Farm filed a motion for summary judgment claiming the undisputed material facts demonstrated that Plaintiff had made material misrepresentations with the intent to deceive. The Trial Court granted State Farm's motion for summary judgment, and Plaintiff appeals. We affirm.

Glenda Emmit v. Richard Emmit, et al.
E2004-00201-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Buddy D. Perry

Glenda Emmit ("the plaintiff") brought a petition seeking to annul her marriage to Richard Emmit. She alleged that, unbeknownst to her, her prior marriage to James Randall Medley had not been dissolved at the time of her attempted marriage to Mr. Emmit. She claims that this prior marriage prevented her from contracting a valid marriage with Mr. Emmit. The trial court held that the co-administrators of Mr. Medley's estate (collectively "the co-administrators") were indispensable parties and ordered the plaintiff to amend her complaint to add them. Following a bench trial, the court below entered a judgment denying the plaintiff's petition for annulment on the ground that she had "unclean hands" and was therefore estopped from averring either that her marriage to Mr. Emmit was invalid or that her marriage to Mr. Medley was not dissolved. The plaintiff appeals. We reverse the judgment of the trial court.

Gary DeWayne Finn v. Mary Louise Summer Bundy
M2003-01368-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Tom E. Gray

This appeal involves enforcement of a divorce decree incorporating a marital dissolution agreement and the obligation of a parent to support a child beyond the child's majority in certain circumstances. The trial court determined that the former husband's alimony obligation had terminated upon the payment of the entire amount of alimony in solido created in the order and MDA. The court also held that the father had a continuing obligation to support his adult son because the son was disabled. We affirm both holdings.

Rena Mae Blair v. Rollin C. Brownson, et al.
E2004-00817-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Kindall T. Lawson

This action for specific performance was filed following a foreclosure sale of real property. The foreclosure was prompted by a prior purchaser's default. Rena Mae Blair ("the plaintiff"), the holder of the first deed of trust in default, acting through her daughter and substitute trustee, Linda Caraway, advertised and conducted the foreclosure sale with the assistance of an attorney. At the sale, the property was sold to Rollin C. Brownson and his wife, Mary Ann Brownson ("the defendants") for $77,642.05. There was no writing at the time of the sale memorializing its terms, but Mr. Brownson did provide Ms. Caraway with an earnest money check. Subsequent to the sale, the attorney conducting the sale drafted a deed which purports to set forth the terms of the sale. The defendants refused to go through with the sale when they learned that the property was reputed to be worth only $50,000. In response to the plaintiff's complaint for specific performance, the defendants raised the statute of frauds as an affirmative defense, contending that there was no written memorandum reflecting the terms of the parties' oral agreement. Following a bench trial, the court below granted the plaintiff's request for specific performance. The defendants appeal. We affirm.

Becky Elliott v. James G. Neeley
E2004-00203-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

This is an unemployment compensation case. The Tennessee Department of Labor and Workforce Development ("the Department") denied the claim of Becky Elliott for unemployment benefits, finding that the plaintiff quit her job without good cause connected to her employment. After exhausting her administrative remedies to no avail, the plaintiff sued James G. Neeley, the Commissioner of the Department, seeking judicial review in the trial court, which court affirmed the Department's denial of benefits. The plaintiff appeals, essentially arguing that the Department's decision is not supported by substantial and material evidence. We affirm.

John Edward Bell, Jr., v. Vickie Lee Bell
W2004-00131-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Dewey C. Whitenton

This is a child custody dispute. The parties were married and had one child. When the child
was approximately three years old, the father filed a petition for divorce and was granted temporary
custody. A year and a half later, the trial court granted the parties a divorce by stipulation, but
reserved the issue of permanent custody. After a hearing, the trial court granted the father primary
residential custody, with the child to reside with the mother three weekends out of the month plus
additional time. The mother now appeals, arguing that the trial court failed to engage in a
comparative fitness analysis and failed to consider evidence that the father had abused the mother during their marriage. After a careful review of the record, we affirm.
 

Virgil E. Rushing v. Walter E. Crockett, Sr.
M2004-00324-COA-R3-CV
Authoring Judge: Judge William H. Inman, Sr.
Trial Court Judge: Judge Ross H. Hicks

This appeal questions the apportionment of attorney fees and costs. The plaintiff suffered a compensable on-the-job injury and by the negligence of a third party. He recovered workers' compensation benefits, and settled his tort action thereafter. The employer's subrogation rights were stipulated, but the parties could not agree upon a proportional allocation of fees.

Lucite International, Inc. v. Peter Runciman, PH.D.
W2004-00314-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Arnold B. Goldin

This case arises from the trial court’s grant of Appellee’s Tenn. R. Civ. P.  12.02 Motion to Dismiss for lack of personal jurisdiction. Under the Tennessee long-arm statute and the relevant case law, we find that the criteria for personal jurisdiction over Appellant are met. Consequently, we reverse and remand.

William Rosenberg Richards v. Joy Wood Richards
M2003-02449-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Muriel Robinson

This appeal involves a post-divorce petition for a reduction or termination of alimony. Following a bench trial, the trial court ordered petitioner to continue paying $1,000 per month in alimony in futuro to Wife and granted Wife's request for her attorney's fees and court costs. Wife's counter-petition for an increase in alimony was denied. Both parties appeal. We affirm.