COURT OF APPEALS OPINIONS

Kenneth E. Braswell v. Lowe's Home Centers, Inc.
M2003-02082-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Walter C. Kurtz

This appeal involves a customer who tripped over a floor mat while waiting in a cashier's line at a home improvement store. The customer filed suit against the store in the Circuit Court for Davidson County, and a jury returned a verdict for the store after determining that the customer was sixty-five percent at fault for his injuries. The customer asserts on this appeal that the evidence does not support the jury's verdict. We affirm the judgment.

Stevie Caldwell v. Bridgett Collette Caldwell
M2003-02427-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge John A. Turnbull

This appeal involves a lawsuit brought by a prison inmate against his former wife for defamation and failure to properly care for their child including the failure to facilitate visitation. The trial court dismissed the complaint after determining that the inmate's slander claim was barred by the statute of limitations and that the remainder of the complaint failed to state a claim for which relief could be granted. We affirm the judgment.

In Re K.A.S.
M2004-02180-COA-R9-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Robert P. Hamilton

This Tenn. R. App. P. 9 interlocutory appeal concerns a father's efforts to set aside a default judgment granting custody of his daughter to the child's maternal grandparents. The grandparents asserted in their petition for custody that the father's whereabouts were unknown and they therefore served their petition on the father by publication in a Lebanon, Tennessee newspaper. Two and one-half years later, the father filed a motion to set aside the custody order asserting that service by publication was insufficient because the grandparents knew or should have known he was residing in Greensboro, North Carolina at the time they filed their petition for custody. We have determined that the default judgment is void for lack of personal jurisdiction and we thus reverse the trial court's order denying the father's motion to set aside.

Michelle Stalls v. Dorothy J. Pounders, et al.
W2003-02933-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert A. Lanier

This case arises out of an action filed by the former client of an attorney, seeking damages pursuant to the Tennessee Consumer Protection Act and theories of breach of contract, fraudulent
misrepresentation, and common law fraud. Appellees filed a motion for summary judgment in the
trial court below, and the court granted the motion. Appellant now seeks review by this Court, and,
for the following reasons, we remand for further proceedings consistent with this opinion.
 

Mary Warren Kesser v. Peter Hale Kesser
W2003-02392-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert A. Lanier

Following their divorce in 1995, Wife filed a petition for contempt against Husband in 1997, alleging Husband failed to comply with certain provisions of the parties’ marital dissolution agreement. Husband filed an answer and submitted his counter-petition for modification of his child support obligation based on changed circumstances. Wife, in turn, filed a motion asking the court to determine Husband’s child support obligation following his receipt of a large severance payment from his previous employer. After holding a hearing on the parties’ respective petitions, the trial court entered one order addressing the visitation of the parties’ minor daughter and another order addressing the financial issues. In the order addressing the financial issues, the trial court increased Husband’s base child support obligation, ordered Husband to pay additional child support in various amounts pursuant to the marital dissolution agreement, ordered Husband to pay additional amounts from improperly withheld taxes on the exercise of certain stock appreciation rights, and ordered Husband to pay Wife’s attorney’s fees. For the reasons set forth herein, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
 

State of Tennessee, ex rel. Moore & Associates, Inc., v. Lon F. West
M2003-00152-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This case involves judicial review of a zoning administrator's refusal to issue a certificate of compliance with all zoning laws to a newly-constructed hotel. We reverse the trial court's denial of the local government's motion to dismiss because such review is appropriate under the common law writ of certiorari, not a direct action for declaratory judgment, and the hotel owners failed to meet the exhaustion requirements prerequisite to certiorari review.

Susan Hutcheson v. Kristi Barth, Individually and in her Capacity as Administrator of the Estate of Raymond Wesley Barth
E2004-00970-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Daryl R. Fansler

The threshold issue presented in this appeal is whether the Plaintiff timely filed her notice of appeal so as to give this Court jurisdiction to hear this case. The trial court entered its order granting the Defendant's motion for summary judgment on January 15, 2004. This order adjudicated all the
claims of the parties. On February 25, 2004, the Defendant filed a motion for contempt alleging nonperformance of the order by the Plaintiff. On March 19, 2004, an agreed order awarding the Defendant pre-judgment interest was entered. The Defendant had not sought pre-judgment interest
in her counter-complaint or in any subsequent pleadings. The Plaintiff filed a notice of appeal on April 19, 2004. We find that the notice of appeal was not filed within thirty days of entry of the judgment appealed from pursuant to Rule 4 of the Tennessee Rules of Appellate Procedure.  Therefore, we dismiss this appeal because this court does not have jurisdiction to hear the issues in this appeal.

French R. Bolen v. Signage Solutions, LLC, et al.
E2004-01183-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor Sharon J. Bell

The issues presented in this appeal are: whether the trial court properly ruled that the employer had good cause to terminate the employee; whether the trial court properly ruled that the employer was not bound by a written employment agreement with the employee through the year 2003; and whether the trial court properly ruled that the employee was not entitled to a bonus for the year 2002. We hold that the trial court's rulings were proper and so affirm the judgment of the trial court.

In the Matter of: E.H. State of Tennessee, Department of Children's Services v. Kenneth Harazak
W2004-00514-COA-R3-PT
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Hansel J. McAdams

This involves the termination of parental rights. The child at issue was taken into protective custody after police raided the parents’ home and found an active methamphetamine lab. Drug charges were filed against the child’s mother and father. The father was on parole from a prior murder conviction in Illinois, and his drug-related activities were a violation of his parole. As a result, the father was returned to Illinois to serve further time in prison on the prior murder conviction. The mother’s parental rights were terminated by default judgment. The father’s parental rights were terminated based on having the child in the home with a meth lab, and the father’s resulting incarceration in Illinois. The father appealed, arguing that the Tennessee Department of Children’s Services did not make reasonable efforts to reunite him with his child. We affirm, finding that under the circumstances of this case, the Department of Children’s Services was not required to make reasonable efforts to reunite the father with the child.

HCA, Inc., v. American Protection Insurance and Industrial Risk Insurers, et al.
M2003-02065-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Ellen Hobbs Lyle

HCA, Inc. appeals the action of the trial court in granting summary judgment to the insurer/
defendants based upon an “inventory exclusion” provision in the policies of insurance. We reverse
the action of the trial court and remand the case for further proceedings.

 

HCA v. American Protection Insurance & Industrial Risk - Concurring
M2003-02065-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Ellen Hobbs Lyle

I concur with the outcome of the Court’s opinion. However, I am writing separately to focus on HCA. Inc.’s burden of production in response to the insurers’ motion for summary judgment and on the effect of our construction of the “inventory exclusion” clauses in HCA’s all risk insurance contracts on this burden of production.

Citizens First Bank v. Andrew N. Hall
E2003-02678-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Russell E. Simmons, Jr.

The Trial Court entered Judgment for plaintiff on loan to defendant and set off the amounts of certain forged checks on defendant's accounts with bank against plaintiff's recovery. We affirm.

Janna Sheya Falk v. Geary Falk
M2003-02134-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge C. L. Rogers

This is a divorce case involving an invalid marriage resulting from the existence of a subsisting previous marriage at the time of the parties' marriage ceremony in 1995. At the time of the parties' marriage ceremony, the purported wife's divorce from a previous marriage was still pending. The wife's divorce from her prior marriage did not become final until three and one-half months following the parties' marriage ceremony. The parties lived together as husband and wife until the wife filed for divorce in 2003. The trial court declared the parties divorced pursuant to section 36-4-101(2) of the Tennessee Code. The trial court then classified the parties' "marital" and separate property, making an equitable division of the "marital" property. The husband appeals the trial court's order granting a divorce and awarding certain property to the wife. For the reasons stated herein, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.

Noel and Josephine Crawley v. Hamilton County, Tennessee
E2003-03028-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge L. Marie Williams

Plaintiffs' action for damages against defendant was dismissed by summary judgment on grounds that "fringe benefits" provided by defendant was plaintiff's exclusive remedy. We vacate the summary judgment.

Sandra Claudine Morrow Howard v. Mark Anthony Howard
02660-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Jerri S. Bryant

The Trial Court’s classification, evaluation and division of marital property was appealed by the
husband. We affirm the Judgment of the Trial Court.

Amy Owens v. Ronnie Owens
W2003-03077-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor William Michael Maloan

This is a divorce action. The trial court designated Wife as the primary residential parent of the parties’ minor child and awarded Husband visitation. It also awarded wife alimony of $415 per month for 16 years. Husband appeals. We affirm designation of Wife as the primary residential
parent and the award of visitation to Husband. We modify the alimony award to an award of rehabilitative alimony of $415 per month for a period of five years.

Hannah Harris, et al., v. Baptist Memorial Health Care Corporation, et al.
W2004-00012-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Robert L. Childers

Following the death of their premature daughter, the mother and father filed a medical malpractice
lawsuit against several defendants, including the mother’s treating physician. The trial court granted the doctor’s motion for summary judgment. We affirm since our supreme court has expressly stated that Tennessee does not recognize a cause of action for loss of chance.
 

Aabert F. Joseph v. Ex Parte
M2004-01651-COA R3-CV
Authoring Judge: Judge William H. Inman, Sr.
Trial Court Judge: Judge Thomas W. Brothers

The appellant filed an ex parte petition for name change, but failed to pay a portion of the filing fee (20%). The petition was dismissed. We affirm.

John Jay Hooker v. Bill Purcell
M2003-03107-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia C. Bonnyman

Plaintiff appeals the denial of his Tenn. R. Civ. P. 60.02(3) motion by which he sought to be relieved from a final judgment that dismissed his complaint for failing to state a claim upon which relief could be granted. Plaintiff argues that the order dismissing his action was "void" because the trial court lacked jurisdiction to dismiss his action. We affirm.

Jackson Energy Authority v. William T. Diamond, Jr.
W2004-01090-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Donald H. Allen

This case involves the timeliness of an appeal from General Sessions Court to Circuit Court. The plaintiff utility company sued the defendant building owner in General Sessions Court for past due utility payments. On July 28, 2003, the General Sessions Court entered a judgment in favor of the plaintiff. On August 1, 2003, the defendant filed a petition to rehear, seeking to have the judgment set aside. On August 6, 2003, the General Sessions Court denied the petition to rehear. On August 18, 2003, the defendant filed a notice of appeal for a de novo review in Circuit Court. The Circuit Court dismissed the appeal on the basis that it was not filed within ten days of the final General Sessions judgment entered on July 28, 2003. The defendant now appeals that decision, arguing that the ten-day time limitation was tolled by his General Sessions petition to rehear. We affirm, concluding that the time limitation for filing an appeal to Circuit Court is not tolled by a petition to rehear filed in General Sessions, because no statute grants the General Sessions Court authority to hear such a petition to rehear.
 

Michael Underwood v. Tennessee Department of Correction
W2004-01630-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor J. Steven Stafford

This is a petition for certiorari seeking review of the department’s disciplinary proceedings. The
petitioner, a prisoner, was disciplined for abuse of his telephone privileges. He appealed the
disciplinary charges against him through the administrative process, with no success. He then filed the petition for certiorari in the trial court below, seeking review of the adverse administrative
decisions against him. The trial court dismissed the petition for certiorari, because it was not verified and it did not allege that it was the first application for the writ as required under T.C.A. § 27-8-106. The petitioner now appeals that decision. We affirm.
 

In re: Estate of Roy W. Barnett, Deceased
W2003-02530-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor George R. Ellis

This appeal arises out of a claim filed against Decedent’s estate by the Bureau of TennCare.
Decedent’s estate filed an exception to the claim arguing that such claim was barred because
Decedent was not provided with notice of the State of Tennessee’s recovery provisions as required by section 71-5-118(l) of the Tennessee Code. The trial court found that the Bureau of TennCare’s claim was barred on the basis that no written notice of the State’s recovery provisions was provided to Decedent or his family members. The Bureau of TennCare brought the instant appeal to this Court, and, for the following reasons, we reverse.
 

Jerry C. Harlan v. Carol L. Soloman
M2003-01396-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Donald P. Harris

This appeal comes to the court from the trial court's approval of a special master's report. The case was referred to a special master following a jury trial after which appellee Harlan was awarded 16.79% ownership in certain real property which appellant Soloman had purchased. The report did not consider depreciation and other deductions which Harlan had claimed in connection with his alleged ownership of the property. After the court adopted the report Soloman moved to amend the order, arguing that she was entitled to an 83.21% share of those deductions, and that the trial court should amend the report to conform with the motion. The trial court refused. Soloman appeals. We affirm.

Riverside Surgery Center, LLC., et al. v. Methodist Health Systems Inc.
W2004-01195-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor W. Michael Maloan

This case presents the interpretation of a transfer restriction clause in an LLC operating agreement.  The plaintiffs filed a motion for summary judgment requesting a declaration that the defendant, by negotiating for the sale of its interest in the LLC and granting a third-party buyer an option to purchase defendant’s interest, had triggered the plaintiffs’ preemptive purchase rights under the operating agreement. The defendants filed a cross-motion for summary judgment arguing that the transfer restriction clause in the operating agreement was triggered only by written notice of the intent to sell, which was never given. The trial court found that, under the language of the operating agreement, the plaintiffs’ preemptive purchase rights were triggered by the“desire or wish” of the selling member to transfer its interest and that the defendant had the desire or wish to transfer its membership interest in the LLC. The defendant appeals. We affirm.

Annette Marie Thompson Bulick v. Richard Lee Thompson, Jr.
W2004-00816-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge D'Army Bailey

Father/Appellant filed a Petition in Opposition to Mother’s Relocation with the Minor Child.
Trial court found that parents did not exercise substantially equal parenting time under the Parental Relocation Statute, T.C.A. § 36-6-108, and allowed Mother/Appellee to move with the minor child. Father appeals. We affirm.