COURT OF APPEALS OPINIONS

J.S. Haren Company vs. Kelly Services
E2002-03116-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Sharon J. Bell
This appeal asserts that the Trial Court erred in entering judgment against the Appellant/Defendant, Kelly Services, Inc., for breach of contract. We reverse and dismiss the judgment of the Trial Court and remand.

Judy Longmire vs Kroger
E2002-03119-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Wheeler A. Rosenbalm
In this action for damages for injuries suffered when plaintiff fell on defendant's premises, the Trial Court granted defendant summary judgment. On appeal, we vacate and remand.

Steve Conklin vs. State
E2002-03130-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Approximately seventeen years ago, Steve Conklin (Plaintiff") was convicted by a jury in the McMinn County Criminal Court of raping a child under the age of thirteen years. Plaintiff's conviction was affirmed by the Court of Criminal Appeals in 1987. Plaintiff was represented by appointed counsel, Fredric J. Chester, Jr. ("Chester"). Chester represented Plaintiff both at trial and on the direct appeal. Many years later, Plaintiff was granted post-conviction relief based on ineffective assistance of counsel and a new trial was ordered. The State of Tennessee ("State") declined to retry Plaintiff, who then was set free. Plaintiff filed this lawsuit in the Claims Commission ("Commission") against the State seeking monetary compensation for the alleged legal malpractice of Chester which Plaintiff claims resulted in his being imprisoned improperly for fourteen and one-half years. According to Plaintiff, Chester should be deemed a state employee because he was appointed by the court. The State disagreed and filed a motion to dismiss the complaint. The State argued that the Commission lacked subject matter jurisdiction over Plaintiff's legal malpractice claim because Chester was not a "state employee". The Commission dismissed the lawsuit solely because Plaintiff failed to respond timely to the State's motion to dismiss. We hold Chester was not an employee of the state and, therefore, the Commission lacked subject matter jurisdiction over Plaintiff's legal malpractice claim. The result reached by the Commission is affirmed.

Donna Taylor v. Doris Holt
E2003-00901-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Telford E. Forgerty, Jr.
Steve Godfrey prepared his last will and testament on his computer and affixed his computer generated signature at the end. He had two neighbors witness the will. Mr. Godfrey died approximately one week later. Doris Holt ("Defendant"), Mr. Godfrey's girlfriend, submitted the will for probate. Donna Godfrey Taylor ("Plaintiff"), Mr. Godfrey's sister, filed a complaint alleging, in part, that the will was not signed and claiming that Mr. Godfrey had died intestate. The Trial Court granted Defendant summary judgment holding there were no undisputed material facts and that all legal requirements concerning the execution and witnessing of a will had been met. Plaintiff appeals. We affirm.

State vs. E.G.P.
E2003-00433-COA-R3-CV
Trial Court Judge: C. Van Deacon
The Juvenile Court of Bradley County ordered that a placement should be found by the Department of Children's Services ("DCS") for a sixteen-year-old mother with her two and one-half-year-old child, the latter of whom had been in foster care most of his life. Time constraints were imposed and DCS did not or was unable to comply with the judgment, which resulted in a finding of contempt. The DCS appeals, and presents a litany of issues for review, one of which alleges that the juvenile court lacked jurisdiction to adjudicate a placement. The judgment is vacated in toto and the case is remanded.

James Wilkerson vs. PFC Global
E2003-00362-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: W. Dale Young
On May 3, 2002, James and Judith Wilkerson ("Plaintiffs") filed this lawsuit against PFC Global Group, Inc. ("PFC") claiming PFC had defaulted on a Promissory Note. Plaintiffs also sued Don and Brenda Dorris who had personally guaranteed PFC's debt to Plaintiffs. All three Defendants were served with process on May 16, 2002, and their attorneys entered an appearance on Defendants' behalf the following day. Plaintiffs' counsel informed defense counsel that Plaintiffs would move for a default judgment if an answer was not filed by September 6, 2002. When no answer was filed by that date, Plaintiffs moved for and were granted a default judgment. After hearing testimony from Plaintiff James Wilkerson regarding the amount due under the various contracts, the Trial Court granted Plaintiffs a judgment against each Defendant in the total amount of $1,492,353.52, plus an additional $15,000 in attorney fees. Thereafter, Defendants filed a motion to have the default judgment set aside under Tenn. R. Civ. P. 60. After a hearing, the Trial Court determined Defendants were not entitled to relief from the default judgment. We affirm.

Donald Lacy v. Wesley Cox
E2003-00709-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Richard R. Vance
Donald R. Lacy ("Plaintiff") sued Jennifer Brandon for damages arising from an automobile accident. After deliberating for approximately two hours, the jury asked the Trial Court if they were required to award Plaintiff any monetary damages if they found fault on the part of Brandon. Based on the question, Plaintiff surmised the jury's deliberations were not going his way. As a result, Plaintiff moved for a voluntary dismissal without prejudice, believing he was entitled to do so as a matter of right. The Trial Court, also believing Plaintiff was entitled to dismiss his lawsuit without prejudice as a matter of right even though the jury was deliberating, granted the motion. We conclude Plaintiff was not entitled to voluntarily dismiss his lawsuit without prejudice as a matter of right at that stage in the proceedings, and as a consequence the dismissal is with prejudice.

Doris Cannon vs. Peninsula Hospital
E2003-00200-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Harold Wimberly
Criminal proceedings against the Plaintiff involving a controlled substance were dismissed upon the Plaintiffs agreement to pay the costs. She thereupon filed this action for damages for malicious prosecution, which was dismissed on motion for summary judgment because the Plaintiff could not prove a necessary element: that the prosecution was terminated in her favor, because she agreed to pay the costs of the criminal prosecution. We affirm.

02825-COA-R3-CV
02825-COA-R3-CV
Trial Court Judge: Jacqueline E. Schulten

E2003-00132-COA-R3-CV
E2003-00132-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Thomas R. Frierson, II

Tony Baldwin v. Board of Paroles
M2002-01428-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Irvin H. Kilcrease, Jr.
A prisoner in the custody of the Tennessee Department of Correction became eligible for parole after serving over twenty years of his sentence. The Parole Board conducted a hearing, and voted to deny him parole. They also decided to defer further parole consideration for another twenty years. The prisoner filed a Petition for Writ of Certiorari, which the trial court denied. We reverse the deferral, because we find that the decision to defer further parole consideration for so many years constitutes an arbitrary exercise of the Parole Board's authority.

Aziza Kljajic v. Mirzet Kljajic
M2002-01294-COA-R3-CV
Authoring Judge: Judge Royce Taylor
Trial Court Judge: Muriel Robinson
This case raises the question of jurisdiction over a nonresident, in a divorce filed by a Tennessee resident who also seeks custody of the parties' minor children, child support and attorney fees. We hold that the court has jurisdiction to grant the divorce and award custody but does not have jurisdiction to award child support or attorney fees.

Linda Bradley v. John Waderker
M2002-02017-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Ross H. Hicks
A driver and the passengers in his 1993 Ford Explorer appeal a non-jury judgment of the Circuit Court of Montgomery County. The Ford Explorer collided with a police cruiser at an intersection in the City of Clarksville. The trial court held both drivers to be equally at fault and dismissed the case. We affirm the trial court.

Tamara Fontaine v. Weekly Homes
M2002-01651-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Russell Heldman
Defendants/appellants appeal the trial court's denial of their motion to compel arbitration. We affirm.

Ken Stephens v. Roane State Community College
M2001-03155-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Irvin H. Kilcrease, Jr.
This is a sexual harassment case. The plaintiff was a tenured professor at the defendant college. In 1996, one of the professor's students filed a complaint of sexual harassment with the college, alleging that the professor engaged in unwelcome sexual conduct and created a hostile educational environment. After a hearing, an administrative law judge determined that the professor had committed the acts charged. Consequently, the professor was suspended without pay for six months. The professor appealed the administrative decision to the trial court. The trial court upheld the decision, using a deferential standard of review, and the professor filed the first appeal in this case. On appeal, this Court reversed and remanded for a review de novo on the record. On remand, the trial court reviewed the case de novo on the record and again upheld the ALJ's decision. The professor now appeals. We affirm, finding that the trial court did not abuse its discretion in refusing to allow the professor to testify in person at the rehearing on remand, and that the trial court did not err in finding that the ALJ's decision was supported by clear and convincing evidence.

Judith Walker v. City of Cookeville / Cookeville Regional Medical
M2002-01441-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: John J. Maddux
This appeal involves an employment dispute between the Cookeville Regional Medical Center and a senior management employee. After the hospital's chief executive officer removed the employee from her position as Interim Assistant Administrator and Director of Quality Management, the employee resigned and filed suit in the Circuit Court for Putnam County alleging that the hospital breached her employment contract by declining to pay her the severance benefits required by her employment contract. Following a bench trial, the court found that the hospital had breached the employment contract and awarded the employee severance benefits, prejudgment interest, and discretionary costs. The hospital argues on this appeal that the employee was not entitled to severance pay because (1) she had voluntarily resigned, (2) the parties understood that the employee's appointment as assistant administrator was not permanent, and (3) the employee's demotion did not materially alter her duties or status. We affirm the judgment because the hospital breached the employee's contract when it demoted her and declined to pay her the severance benefits required by her employment contract.

J. L. Beechum, Jr. v. Charles Traughber
M2003-00150-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Mccoy
Petitioner, an inmate with the Department of Corrections, sought judicial review of decisions of the Tennessee Board of Probations and Parole first to revoke his parole and then to decline to release him on parole. The Chancery Court for Davidson County denied the inmate's request for relief, and the inmate has appealed. We have determined that the inmate's challenge to the revocation of his parole was untimely and that the inmate's complaint regarding the late certification of the records regarding his Georgia conviction is without merit. Accordingly, we affirm the dismissal of the inmate's petition.

Paul A. Miller vs. Connie Marie Miller
M2002-02775-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Clara W. Byrd
This is a post-divorce custody proceeding involving two young girls wherein the trial court denied the Father's Petition for a Change of Custody. We affirm the action of the trial court.

Teresa McEwen v. Dept. of Safety
M2002-02884-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Irvin H. Kilcrease, Jr.
This appeal involves the forfeiture of personal property seized incident to a criminal investigation into the illegal sale of controlled substances. The owner of the property filed a claim for its recovery with the Tennessee Department of Safety. The Appeals Division of the Department of Safety, overruling an administrative law judge's initial order, ordered the forfeiture of all the seized property except a pickup truck. Thereafter, the owner filed a petition in the Chancery Court for Davidson County seeking judicial review of the Appeals Division's forfeiture order. The trial court affirmed the forfeiture order, and the owner of the property appealed. Although we disagree with the trial court's reasoning, we likewise affirm the forfeiture order.

Kim Hickerson v. Andrew Dearing, III
M2002-02210-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: L. Craig Johnson
This is a malpractice action filed by Appellant against his criminal defense attorney in a case resulting in his conviction by a Coffee County jury of selling cocaine a Class C felony. While this civil case was pending on appeal the underlying criminal conviction of Appellant was affirmed by the Court of Criminal Appeals and the Supreme Court denied his application to appeal. Based upon Gibson v. Trant, 58 S.W.3d 103 (Tenn.2001), we affirm the action of the trial court in dismissing the case.

M2003-00280-COA-R3-CV
M2003-00280-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: James B. Cox

Linda Campbell v. Opal Carroll
M2003-00295-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ross H. Hicks
This appeal involves the denial by the trial court of a motion for Rule 11 sanctions. The request for sanctions was made pro se by defendant Michele Scott against plaintiff and her counsel for failing to perform an adequate prefiling investigation as required under Rule 11. We affirm the judgment of the trial court.

Chris Hickman v. Misty Willis
M2003-00574-COA-R3-JV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Samuel H. Smith
Mother appeals the trial court action of requiring non-custodial obligor father to pay only one-half of the premium for medical insurance covering their minor child and further appeals the amount of support arrearage. As the child support guidelines are mandatory in requiring that non-custodial obligor parent is responsible for the full premium of medical insurance, the action of the trial court is modified accordingly and in all other respects affirmed.

Stephanie Medlyn vs. Peter Medlyn
E2002-02031-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Telford E. Forgerty, Jr.
Wife's action to enforce Divorce Settlement Agreement resulted in monetary judgment against husband. On appeal, we affirm.

Alexander C. Wells, v. State of Tennessee
M2002-01958-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell

A tenured professor successfully challenged his dismissal through a review in the Chancery Court of Davidson County. Subsequently he filed a claim against the state in the Claims Commission for breach of contract. The Commission dismissed the claim on jurisdictional grounds. We affirm the conclusion that the claim was not based on a "written contract."