COURT OF APPEALS OPINIONS

In Re: Lillie Odessie Green, Decedent
M2002-01672-COA-R3-CV
Authoring Judge: Judge Royce Taylor
Trial Court Judge: Frank G. Clement, Jr.
The court is asked to construe the following language contained in a form will: "I give all my estate to my children, if any, who survive me in equal shares, per stirpes." The testatrix was survived by four of her five children. The trial court held that the two children of the testatrix's child who predeceased her did not take any of her estate. We hold likewise.

Jasmine A. Ali v. Eric N. Fisher, et al.
E2003-00255-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: John S. Mclellan, III
After an automobile accident in which she suffered serious injuries, Jasmine A. Ali ("Plaintiff") sued both the driver of the automobile, Eric N. Fisher ("Fisher"), and the owner of the automobile, Thomas Scheve ("Scheve"). The claim against Scheve was based on negligent entrustment. Prior to trial, Plaintiff and Scheve were in sharp disagreement as to whether Scheve's alleged negligent entrustment resulted in Scheve's being vicariously liable for Fisher's conduct, or whether Scheve's negligence should be apportioned by the jury pursuant to comparative fault principles. The trial court concluded Scheve's alleged negligent entrustment should be apportioned by the jury pursuant to comparative fault principles. After a trial, the jury returned a verdict for plaintiff and apportioned fault, 80% to Fisher and 20% to Scheve based on his negligent entrustment of the vehicle to Fisher. The trial court entered a judgment in accordance with the jury's verdict. Plaintiff filed a Motion to Alter or Amend Judgment asking the trial court to reverse its earlier pre-trial ruling and hold Scheve vicariously liable for Fisher's negligence because Scheve negligently entrusted the vehicle to Fisher. The trial court granted the motion and amended the judgment which, in effect, held Scheve and Fisher jointly and severally liable for the entire amount of the jury's award. Scheve appeals. We hold the trial court erred when it amended the original judgment after concluding, post- trial, that Scheve was vicariously liable for Fisher's conduct. We vacate the amended judgment and reinstate the original judgment of the trial court entered in accordance with the jury's verdict apportioning fault.

Shawn E. McWhorter v. Randall Bare
E2002-02896-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: W. Neil Thomas, III
Professional pilot Shawn E. McWhorter ("Plaintiff") sued Randall Barre ("Defendant") for defamation based upon a letter Defendant wrote to the Federal Aviation Administration ("FAA") containing allegations that plaintiff was medically unfit to be a pilot. The jury returned a verdict for plaintiff and awarded $25,000 in compensatory damages and $42,500 in punitive damages. The trial court entered its judgment, as later amended, in favor of plaintiff against defendant for $105,820.01, consisting of compensatory damages of $25,000, punitive damages of $42,500, and attorney fees and expenses in the amount of $38,320.01. The trial court's award of attorney fees and expenses was based upon defendant's refusal to admit liability in response to requests for admission. Defendant appeals. We affirm, in part, and reverse, in part.

TGJ & Co. vs. Michael E. MaGill
E2003-00298-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: John F. Weaver
Margaret E. Bowers ("the Claimant") appeals the judgment of the trial court, which reversed an administrative determination of the Commissioner of the Department of Labor and Workforce Development ("the Commissioner"). The Commissioner had held that the Claimant is eligible for unemployment compensation as a result of the termination of her employment with TGJ & Co., Inc. ("the Employer"). Because we hold that the Claimant voluntarily quit her employment without good cause, we affirm the trial court.

Lindsay Alford vs. Oak Ridge City Schools
E2002-03133-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: James B. Scott, Jr.
Lindsay E. Alford ("the plaintiff") and her father, David R. Alford, IV, sued The Oak Ridge City Schools ("the high school") under the Governmental Tort Liability Act ("GTLA") for injuries sustained by the plaintiff when she slipped on a hallway floor at Oak Ridge High School, where she was a student. At the conclusion of the plaintiff's proof, the trial court granted the high school's motion for an involuntary dismissal, finding that, while the plaintiff had proven the existence of water on the floor, she had failed to prove that the high school knew or should have known about the water. From this ruling, the plaintiff appeals. We affirm.

Dianna Dawn Mcgahey v. Davis Lee Mcgahgey
W2003-01051-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Ron E. Harmon

W2003-00129-COA-R3-CV
W2003-00129-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Jon Kerry Blackwood

In Re: The Estate of Lowell Frazier
E2002-01203-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Billy Joe White
This appeal concerns two separate suits filed in the Chancery Court for Campbell County in connection with the administration of the Estate of Lowell Frazier. The first suit was brought by Sam Lough, individually, and also, along with his wife, Debbie Lough, as parents and guardians of Matthew Lough, and Darryl Herron and Elizabeth Herron, as parents and guardians of Chelsea Herron. It sought to establish a lost or spoilated will of Mr. Frazier, which was dated January 30, 1998 ("the first will"). The second suit was brought by Matthew Lough and Chelsea Herron by and through their guardian ad litem, appointed in the first case, contesting a later will dated May 24, 2000 ("the second will"). The cases were consolidated below and the suit seeking to establish the first will was tried first. Under an agreement of the parties, the first case must be decided in favor of the minors before they would have standing to contest the second will. After a plenary trial a jury found as to the first case that the Plaintiffs proved by clear and convincing evidence that Lowell Frazier did not destroy the first will. Thereupon, the second trial was had before the same jury, which found against the second will on the ground that due execution was not proved and that Glenda Faye Smith, who was the sole beneficiary of the second will, and at the time it was executed was attorney-in-fact for Mr. Frazier, did not overcome the presumption of undue influence over Mr. Frazier by clear and convincing evidence. Ms. Smith raises a number of issues, many of which merit a critical examination, but our review of the record persuades us that the issue which contends that she was entitled to a directed verdict in the first case is the dispositive issue in this appeal. We find that the Court was in error in not directing a verdict in her favor in the lost will case and reverse the judgment rendered therein. This results in the Plaintiffs not having standing to pursue the second case, which is reversed and dismissed.

Donovan Davis v. Ray Maples
M2002-02564-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Walter C. Kurtz
An inmate brought this action to seek judicial review of the Board of Paroles decision to deny him parole. Because a prisoner has no liberty interest in early release, we affirm the dismissal of the due process claims brought herein. We affirm dismissal of that portion of the petition that alleges that the denial of parole was arbitrary and capricious, but specifically hold that Mr. Davis may pursue administrative appeal of that denial. We reverse dismissal of the claim that the Board's decision to defer Mr. Davis's next meeting with the Board for eleven years is not arbitrary and capricious, and remand that claim for further proceedings.

James Tate v. Glenda Tate
M2002-01749-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Carol A. Catalano
This appeal concerns the propriety of the trial court's property division between divorcing parties. As part of its division of the marital property, the trial court ordered that Husband transfer a home, which was his separate property, to Wife. The trial court also awarded Wife $4,500.00 as her interest in a Mercedes automobile which the parties purchased for $15,000.00. We affirm in part, reverse in part, and remand.

00521-COA-R3-JV
00521-COA-R3-JV
Trial Court Judge: Barry R. Brown

Judy Carolyn Lawson vs. Cynthia Gale Rines
E2002-02152-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Dale C. Workman
This is a wrongful death action. The Trial Court excluded proof of the deceased's Social Security benefits at trial. Judy Carolyn Lawson ("Plaintiff") made an offer of proof showing only the amount of monthly Social Security benefits received. The jury returned a verdict in Plaintiff's favor, and the Trial Court granted Plaintiff's motion for prejudgment interest. Service Radio Cab Co., Inc. ("Defendant") appeals the award of prejudgment interest. Plaintiff appeals regarding the exclusion of proof of Social Security benefits. We affirm, in part, and reverse, in part.

Sevier County vs. John Waters, Trustee
E2002-02309-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Ben W. Hooper, II
This is a land condemnation case. On November 18, 1988, Sevier County ("the County") filed a petition for condemnation seeking to condemn property in the county for a new jail. The petition was tried to a jury some 13 plus years later, on June 19 and 20, 2002. The jury awarded compensation of $335,500. This verdict was $158,500 more than the amount deposited in court by the County. The trial court entered judgment on the jury's verdict; the trial court supplemented the award by an award of pre-judgment interest of $267,468.75 and decreed that the total judgment of $425,968.75 would accrue interest at the rate of 10% per annum. The County appeals, arguing (1) that the trial court erred in excluding evidence pertaining to a controversy over the ownership of the property; (2) that pre-judgment interest is discretionary with the court and that the court below should have considered the disputes among the property owners as a factor impacting the delay in getting this matter to trial; (3) that the trial court erred in the way it calculated pre-judgment interest; and (4) that the trial court erred in decreeing that the judgment of $425,968.75 would accrue post-judgment interest at the rate of 10% per annum. We affirm.

Ernest W. Sipe v. F. Raymond Porter
E2002-02938-COA-R9-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Dale C. Workman
Ernest W. Sipe ("Plaintiff") sued F. Raymond Porter, M.D. ("Dr. Porter") regarding Dr. Porter's medical care of Gladys Louise Sipe. Plaintiff filed his expert's affidavit. Plaintiff's expert then was deposed. During this deposition, defense counsel questioned Plaintiff's expert about portions of Ms. Sipe's medical record that Plaintiff's expert had not reviewed previously. Dr. Porter then filed a motion for partial summary judgment. After his deposition, Plaintiff's expert reviewed all of the previously unreviewed records, and Plaintiff then filed a supplemental affidavit of his expert. The Trial Court applied the rule of cancellation and found that Plaintiff's expert's opinions were contradictory and that his testimony as an expert witness should be cancelled and disregarded as competent proof in this case. The Trial Court then granted Dr. Porter's motion for partial summary judgment. Plaintiff appeals. We reverse and remand.

Sheryle Hydas vs Herman Hydas
E2002-02943-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Frank Brown, III
In this divorce action the Trial Court valued marital and non-marital property and divided marital property. Husband appealed the Trial Court's decision on these issues. We affirm.

Donald Xiques vs. Charme Knight
E2003-00435-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Dale C. Workman
Plaintiff sued defendant claiming defendant divulged confidential information to FBI and that agency refused to hire him, due to defendant's action, which violated his constitutional right to privacy. The Trial Court ruled that plaintiff was estopped to maintain action because he had been unsuccessful in a prior action in the federal court against the same defendant. On Appeal, we affirm.

In Re: Estate of Ilene S. Ramey
E2003-00544-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Richard E. Ladd
At issue in this appeal is whether this will contest action, brought by Tommy Snapp and Eddie Snapp as intestate heirs at law, is barred by the applicable two-year statute of limitations found at T.C.A. 32-4-108. Plaintiffs have challenged the validity of the will of Ilene S. Ramey on grounds that it was executed outside the presence of two witnesses as required by T.C.A. 32-1-104. In their complaint they allege that the witnesses to the will were wrongfully coerced by their employment supervisor, Defendant Sherri H. Jones, to sign affidavits falsely stating that they were in the presence of Ms. Ramey when she executed her will. The Trial Court held the action to be time-barred because it was filed more than three years after admission of the will to probate, ruling that "under the authority of Phillips v. Phillips, 526 S.W.2d 439 (Tenn.1975), the Complaint alleges no facts that could amount to a concealment of the claim." The Court dismissed the complaint under Tenn.R.Civ.P. 12.02(6) for failure to state a claim upon which relief can be granted. We affirm.

Bill Goins vs. Creditcorp
E2002-01927-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
This appeal reaches us in the form of several consolidated class action lawsuits. In each action the Plaintiffs alleged that Defendants, who are owners and/or operators of check cashing companies, effectively made short-term loans to Plaintiffs and charged them exorbitant and usurious interest rates, in violation of various state and federal statutes. After negotiation, the parties reached a settlement agreement, which was presented to and approved by the Trial Court. At issue in this appeal is the interpretation of a provision in the settlement agreement. Plaintiffs filed a "motion to enforce" which alleged that Defendants violated the settlement agreement by willfully failing to forgive and release certain debts of Plaintiffs resulting from transactions taking place on or before September 30, 1997. Defendants argued, among other things, that the agreement did not require them to release the debts at issue. The Trial Court dismissed Plaintiffs' motion to enforce the settlement agreement. We vacate the Court's judgment and remand the case for an evidentiary hearing.

Roy Malone vs. Scott Probasco
E2002-03135-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Frank Brown, III
In this appeal from the Circuit Court for Hamilton County the Plaintiff/Appellant, Roy Michael Malone, Sr., argues that the Trial Court erred in granting the Defendant/Appellee, Scott L. Probasco, Jr., a summary judgment. We affirm and remand.

R. Scott Martin v. John Curtis King
E2002-03055-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Billy Joe White
This is a breach of contract case. R. Scott Martin ("Plaintiff") sued John Curtis King ("Defendant"), alleging that Defendant had breached his agreement to give Plaintiff a 3% interest in Defendant's landfill venture. The trial court found that the parties' agreement did not pertain to or cover the particular landfill business out of which Plaintiff sought a 3% interest. The trial court did conclude that Plaintiff was entitled to a judgment against Defendant for $4,500 for monetary contributions made by Plaintiff in connection with the parties' agreement. Plaintiff appeals, contending that the trial court erred in finding that a novation had occurred, in admitting parol evidence, and in calculating damages. We affirm.

Lynn Raiteri Ex Rel. Mary Cox v. NHC Healthcare
E2003-00068-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Harold Wimberly
Lynn Raiteri, as the daughter and next friend of the late Mary Helen Cox ("Mrs. Cox"), sued NHC Healthcare/Knoxville, Inc. ("the defendant"), as well as others, for the wrongful death of Mrs. Cox, whose death allegedly resulted from improper care at the defendant's nursing home. We granted the plaintiff's Tenn. R. App. P. 9 application for an interlocutory appeal in order to review the trial court's order granting the defendant's motion to compel mediation and arbitration pursuant to the dispute resolution procedures contained in the defendant's nursing home admission agreement. We reverse.

Conchita Johnson vs. Greg Johnson
E2003-00130-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Ben W. Hooper, II
The Trial Court entered Judgment for back child support, ordered increase in continuing child support, and awarded custodial parent attorney's fees. Father, who sought change of custody, appealed. We affirm.

Clarence Matz, et ux vs. Wuest Diagnostics
E2003-00167-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Wheeler A. Rosenbalm
Defendants granted summary judgment in medical malpractice action on grounds the statute of limitation had run. On appeal, we vacate and remand.

Bobby Cunningham v. Terry Lester
M2002-00887-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: J. B. Cox
This dispute arises from an auction sale of real property. The trial court awarded plaintiff buyer specific performance of one contract and denied specific performance of a second contract. We affirm.

Angela Taylor vs. Douglas Fezell
E2002-02937-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas R. Frierson, II
In post-divorce action by husband, the Trial Court refused to void trust provision in Marital Dissolution Agreement and calculated child support. Husband appealed, we affirm.