COURT OF APPEALS OPINIONS

Mary Lee Dotson v. William Ennis Dotson
M2002-02578-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Jim T. Hamilton

This appeal involves the dissolution of a 28-year marriage by default. The wife filed for divorce in the Chancery Court for Maury County and, after the husband failed to file a timely answer, filed for a default judgment. The trial court granted the default judgment even though the husband had filed an answer and counterclaim on the day before the hearing and later denied the husband's Tenn. R. Civ. P. 55.02 motion to set aside the default. The husband has appealed. We have determined that the trial court properly granted the default judgment but erred by refusing to later set the default judgment aside.

Alexander C. Wells, v. Tennessee Board of Regents, et al.
M2003-00591-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Carol L. McCoy

This appeal is the continuation of a protracted dispute between Tennessee State University and a faculty member stemming from his termination for sexually harassing a student. After the courts vacated the dismissal, the university and the Tennessee Board of Regents established a process of transitional reinstatement. The professor objected and refused to report to work. Thereafter, the professor filed a petition in the Chancery Court for Davdison County to hold the university and the board in contempt. The trial court heard the matter without a jury and declined to hold either the university or the board in contempt. The professor has appealed. We affirm because orders declining to grant contempt petitions are not appealable.

Janet Lynn Ditzer v. Curtis J. Ditzer
E2003-00707-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Judge W. Neil Thomas, III

The Trial Court ordered the father to pay one-half of the daughter's college expenses pursuant to the parties' Marital Dissolution Agreement, and reimburse the mother for one-half of expenses already paid. On appeal, we affirm.

Jerry McGeehee, et al., v. Michael W. Davis
M2002-03062-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert E. Lee Davies

This case is an appeal from a wrongful death claim in which the Defendant was found only fifty percent at fault. The Plaintiffs appeal to this Court for review of two procedural issues. For the following reasons, we affirm the trial court.

In Re S.M.
M2003-00422-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Betty Adams Green

This appeal involves the termination of the parental rights of a biological father whose daughter was surrendered to a licensed child-placing agency without his knowledge. Soon after notifying the biological father that it had custody of the child, the agency filed a petition in the Davidson County Juvenile Court seeking to terminate the father’s parental rights. Following a bench trial, the juvenile court concluded that the biological father had abandoned his daughter and that the child’s best interests required terminating her biological father’s parental rights. We have determined that the agency has failed to present clear and convincing evidence that the biological father has abandoned his daughter.
 

In Re S.M. - Concurring
M2003-00422-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Betty Adams Greene

I disagree with the standard of review employed by the court in this case for the reasons
discussed at more length in In Re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at
*18-22 (Tenn.Ct.App. June 3, 2003) (No Tenn. R. App. P. 11 application filed; Estate of Acuff v.
O’Linger, 56 S.W.3d 527, 533-37 (Tenn.Ct.App. 2001). However, I would reach the same result
employing the standard of review recited in Acuff v. O’Linger, 56 S.W.3d 527 at 537. Therefore,
I concur with the court’s decision to reverse the order terminating R.G.L.’s parental rights.

Peggy Pistole v. Stephanie D. Hayes, et al.
M2002-00470-COA-R3-CV
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Judge Carol L. Soloman

In this appeal from the Circuit Court for Davidson County the Plaintiff/Appellant, Peggy Pistole, argues that the trial court erred in excluding witness testimony upon grounds that their identity was not disclosed in Ms. Pistole's response to interrogatories. We reverse the judgment of the trial court and remand.

James L. West v. Frank Luna
M2002-02734-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Lee Russell

This appeal is the second in a 24 year long dispute over a proposed raceway in Lincoln County. After hearing additional proof as this Court required in West v. Luna, No. 01A01-9707-CH-00281, 1998 WL 467106 (Tenn.Ct.App.1998), the trial court entered a new injunction prohibiting the defendant Luna from operating a race track on Old Boonshill Road in Lincoln County. In this appeal, Mr. Luna challenges the trial court's injunction as noncompliant with our decision in the first appeal, and in imposing a noise limitation effectively making the race track a nuisance per se. We affirm the trial court.

Tennessee Industrial Machinery Company, Inc. v. Accuride Corporation
M2002-01844-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor James T. Hamilton

This appeal involves the lower court's award of a garnishment judgment against Accuride Corporation, as well as its subsequent denial of Accuride's Tenn. R. Civ. P. 59.04 motion to alter or amend the judgment. For the following reasons, we reverse the judgment of the lower court and remand for further proceedings.

Edward Silva v. Albert Buckley, Jr.
M2002-00045-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Russell Heldman

Edward Silva v. Albert Buckley, Jr.
M2002-00045-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Russell Heldman

Ronald E. Brown v. Balaton Power, Inc.
M2001-02770-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Russell Heldman
This case involves the issue of whether parties contracted for arbitration to be the sole method of dispute resolution with regard to contract disputes. We find the intent of the parties unclear due to an irreconcilable conflict between two sections of the contract dealing with dispute resolution. We, thus, affirm the trial court's ruling that Plaintiff cannot be compelled to arbitrate.

Alma Neiswinter v. Mark Murray
M2002-02345-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Timothy L. Easter
This appeal involves modification of child custody and child support, and contempt for failure to pay the support. When the mother and the father were divorced, the mother was designated as the primary residential parent. Three years later, custody was changed to the father. Subsequently, the mother filed a petition for change of custody and for modification of her child support obligation. The State later filed a petition on behalf of the father to hold the mother in criminal contempt for failure to pay child support. After a trial on both the mother's petition for change in custody and support and the State's petition for contempt, the trial court denied the mother's petition for custody, reduced the support retroactively because one child no longer lived with the father, and granted the State's petition, holding the mother in contempt. As punishment for the contempt, the trial court sentenced the mother to forty days in prison. From that order, the mother now appeals. We affirm the trial court's determinations regarding child custody and child support. We reverse the trial court's finding of criminal contempt, finding that the mother had in fact paid all of the required child support, based on the trial court's retroactive order reducing the child support obligation.

Earl M. Shahan v. Franklin County
M2002-00725-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: John W. Rollins
This case involves a dispute between Franklin County and the developer and residents of a subdivision over the maintenance of roads in the subdivision. After the county declined the developer's public dedication of the roads and denied applications for building permits in the subdivision because of inadequate roads, the developer and several property owners filed separate suits against the county in the Chancery Court for Franklin County to determine the responsibility for maintaining the roads. The property owners also sought specific performance and damages from the developer. The trial court consolidated the cases and, following a bench trial, held that the county was not responsible for maintaining the roads. The trial court also directed the developer to bring the roads up to 1990 subdivision standards. The developer asserts on this appeal that there had been an implied public dedication of the roads and, therefore, that the county was responsible for maintaining them. For their part, two property owners assert that they are entitled to damages in addition to specific performance. We have determined that the trial court correctly determined that the roads were not public roads and that the property owners were not entitled to damages as well as specific performance. However, we have also determined that the trial court should have ordered the developer to bring the roads up to the county's current road standards.

Susan Taylor v. Square D Company
M2002-01620-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Robert E. Corlew, III
Disobeying the direct orders of his supervisor, an electrician began work on a substation without following the proper safety procedures. He was electrocuted and perished almost instantly. The widow of the electrician brought suit against the manufacturer of the substation, alleging that the manufacturer was negligent and had defectively designed an unreasonably dangerous product. The trial court granted summary judgment for the manufacturer. Because there are no material factual disputes, and the negligence of the electrician was clearly greater than that of the manufacturer, we affirm the decision of the trial court.

Donald Britt v. Roxanne Howell
M2002-03070-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Robert L. Jones
The parties are adjacent commercial landowners of two story buildings with the second floors of their buildings being serviced by a common stairway between the two properties. The dispute involves use of the stairway and storage closets under and over the stairwell. The trial court held that the stairway was a common stairway, owned in equal undivided interests by the parties as was the upper floor storage area. The trial court further held that the lower floor storage area belonged exclusively to Appellees. We affirm the judgment of the trial court.

Irby C. Simpkins v. Peaches G. Blank
M2002-02383-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Walter C. Kurtz
This case involves an appeal from a grant of summary judgment equitably dividing a tax refund of the parties and refusing to reopen the parties' marital dissolution agreement. In addition, appellant contends the trial court erred by awarding attorney's fees to appellee for issues relating to child support litigated below. For the following reasons, this Court affirms the decision of the trial court.

Inez Seals and Terry Hurd v. Life Investors Insurance
M2002-01753-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: John W. Rollins
This is a case involving the reformation of a settlement agreement terminating claims on two policies between plaintiffs and the defendant insurance company. The trial court refused to reform the settlement agreement and denied defendants their attorney's fees. For the following reasons, we affirm in part, reverse in part, and remand this case for further proceedings.

Mary Watkins v. Bryan Watkins
M2002-01777-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Royce Taylor
This is an appeal from an order denying a Tenn. R. Civ. P. 60.02 motion to set aside a default judgment entered in favor of Wife in her divorce from Husband. For the following reasons, we vacate the order of the trial court and remand for further proceedings.

Nashville & Davidson County v. Margaret Hudson
M2002-02847-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Irvin H. Kilcrease, Jr.
This case involves an appeal from the trial court's grant of Appellee's motion for summary judgment. Appellee filed suit seeking to enjoin Appellant to remove vinyl siding that she had installed on her house in violation of a historic zoning ordinance. Appellant counter-complained alleging that the ordinance was void and unenforceable on grounds that the ordinance was unconstitutional and never properly adopted. Appellee subsequently moved for summary judgment which the trial court granted. We affirm.

Lynn Blevins v. Lester Blevins
M2002-02583-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Tom E. Gray
This appeal arises from Wife's complaint for divorce. Based on Husband's failure to file an answer, Wife filed a motion for default and notice of hearing. Husband attended the hearing pro se and was afforded the opportunity to continue the hearing to retain legal counsel but declined to do so. After receiving testimony, the trial court awarded Wife a divorce, divided marital property and awarded Wife rehabilitative alimony for 60 months. Husband appeals, asserting that the trial court's division of marital property was not fair and equitable and that Wife did not provide proof sufficient to establish a proper basis for an award of rehabilitative alimony. We reverse and modify in part the division of marital property and indebtedness and reclassify the alimony from rehabilitative to in solido. In all other respects, we affirm the trial court.

In Re: D.D.K., D.M.M., and T.J.M., Jr.
M2003-01016-COA-R3-PT
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: L. Raymond Grimes
This appeal involves a petition filed by the Department of Children's Services to terminate the parental rights of Father to his two minor children. The trial court granted the petition and Father appeals the decision. Because we find the petition was improperly granted, we vacate and remand.

Eleonora Kogan. v. Tennessee Board of Dentistry
M2003-00291-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Irvin H. Kilcrease, Jr.
In this case we are asked to determine the type of notice required to be given a defendant in a contested case hearing before a state administrative agency. We determine that Tennessee Compilation of Administrative Rules and Regulations 13604-1-.06 applies and requires personal service, return receipt mail, or, in the event of evading service, personal service with a person at the parties' dwelling place. In the case at bar, service of notice of the new trial date was made through regular mail only. This method of service is insufficient. The decision of the Board of Dentistry is vacated, and the case is remanded.

Meaji Nisley Lockmiller v. Mark Lockmiller
E2002-02586-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: John B. Hagler, Jr.
In this divorce case, the parties contested, among other things, the issues of divorce and the custody of their minor children, Victoria Grace Lockmiller (DOB: August 27, 1994) and James Roman Lockmiller (DOB: November 24, 1998). Expressing its belief that Mark Douglas Lockmiller ("Father") would not tell "a knowing untruth," the trial court granted him a divorce from Meaji Lynn Nisley Lockmiller ("Mother") on the ground of inappropriate marital conduct and designated him as the primary residential parent of the parties' children. Wife appeals, contending that the evidence preponderates against the trial court's award of primary custody to Father. We affirm.

Mary Lee Alford, et al. v. Earl Ray Lumley, et al.
W2002-03051-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Lee Moore

This lawsuit emanates from a 1989 sale of land, which included a portion of land to which the seller did not have title. Two subsequent assignees of the original buyer filed a cause of action against the seller, seeking rescission or reformation of the 1989 transaction and alternate relief. The trial court awarded plaintiffs’ damages and declined to award equitable relief. We affirm.