COURT OF APPEALS OPINIONS

Sandra K. Houston v. Virty Houston
W2002-02022-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Joe C. Morris

Danny Alvis vs. Manfred Steinhagen
W2001-00940-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Kay S. Robilio
This appeal arises from a claim filed by the Appellee against the Appellant in the General Sessions Court of Shelby County. The claim alleged that the Appellee was entitled to rescission, reformation, and/or damages proximately caused by the Appellant's breach of contract, breach of warranty, fraud, misrepresentations, violations of the Tennessee Consumer Protection Act, and/or unjust enrichment. Following a trial, the general sessions court rendered a verdict in favor of the Appellee. The Appellant appealed the decision to the Circuit Court of Shelby County. Following a trial in the circuit court, the circuit court rendered a verdict in favor of the Appellee and ordered the Appellant to pay discretionary costs.

Latasha Whittington-Barrett vs. Jerry Hayes
E2001-01277-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: G. Richard Johnson
LaTasha Marie Whittington-Barrett ("Plaintiff"), who is currently incarcerated by the State of Tennessee, filed a petition seeking a copy of Plaintiff's medical and psychiatric records. As grounds for the petition, Plaintiff cited a Tennessee Department of Corrections rule which requires a court order before TDOC will release copies of the inmate's health records directly to the inmate. The defendants, prison Health Administrator Jerry Hayes and prison Mental Health Psychological Examiner David Dobbins ("Defendants"), filed a Motion to Dismiss or for Summary Judgment. The Trial Court granted Defendants summary judgment. Plaintiff appeals. We vacate the summary judgment and remand.

Minnie Long v. HCA Health Svcs dba Southern Hills Medical Center
M2001-00505-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Marietta M. Shipley
This appeal involves a personal injury sustained by the plaintiff while a patient at defendant's nursing home facility. The plaintiff filed suit against the defendant for negligence and the case proceeded to trial before a jury. During the trial, the defendant filed several motions for a directed verdict, which were denied. The trial resulted in a hung jury and the court was forced to declare a mistrial. Before the second trial, the defendant renewed its motion for directed verdict. The court ruled that the plaintiff's cause of action should be considered a claim for medical malpractice, but that the plaintiff made out a prima facie case. The plaintiff voluntarily dismissed the suit before the second trial took place and the defendant motioned the court for discretionary costs. The court awarded the defendant only some of the requested costs and this appeal followed. For the following reasons, we affirm the decisions of the trial court to deny defendant's last motion for a directed verdict and to award only partial discretionary costs.

Charles Kendall Duty, et al v. Farah Dabit, et al
M2001-00586-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: C. L. Rogers
This appeal involves a suit brought by the purchasers of a new home. The seller and purchaser entered into a contract of sale, wherein the seller agreed to construct a home on a parcel of real property. Having no construction experience, the seller hired a contractor to construct the home. Upon the completion of the home and closing on the property, the purchasers discovered numerous defects that were allegedly caused by a failure to construct the home in a workmanlike manner. The purchasers filed suit against the seller and the contractor. The seller and the contractor hired an attorney, but the attorney eventually withdrew from the case. Four months after the attorney's withdrawal, the case proceeded to trial. The seller, acting pro se, arrived at the trial several hours late. By the time the seller had arrived, the contractor and purchaser had completed voir dire and the contractor had been dismissed through a judgment on the pleadings. With the trial judge acting as finder of fact, the trial proceeded and a judgment was entered against the seller in the amount of $22,182.84. After the trial, in an attempt to amend his pleadings to assert a cross-claim against the contractor, the seller moved the court for a new trial or to set aside the judgment. The trial court denied the seller's motion and for the following reasons, we affirm.

Clement Bernard, M.D. v. Sumner Regional Health Systems
M2000-01478-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Arthur E. Mcclellan
On or about March 26, 1999, the appellee Sumner Regional Health Systems, Inc. revoked appellant Clement F. Bernard, M.D. privileges to practice medicine at Sumner Regional Medical Center. Consequently, Dr. Bernard filed a complaint on March 29, 1999, alleging procurement of breach of contract and defamation. On February 9, 2000, Sumner Regional Health Systems filed a Motion for Summary Judgment on the grounds that Dr. Bernard could not establish viable claims for procurement of breach of contract or defamation. The trial court granted Sumner Regional's motion. On June 12, 2000, Dr. Bernard filed a Notice of Appeal and this litigation resulted.

E2001-01963-COA-R3-JV
E2001-01963-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Suzanne Bailey

T.H. Engineering & Mfg. & Ron Tourte vs. Chris Mussard
E2001-02406-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: John F. Weaver
Plaintiff sued on promissory note. Defendant counterclaimed on grounds of breach of contract, violation of Tennessee Consumer Protection Act, and fraud. The Trial Court entered Judgment for plaintiff and defendant has appealed. We affirm.

Flynt Engineering Company vs. William Cox
E2001-02457-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Ben W. Hooper, II
This is a suit by Flynt Engineering Company against William Cox, seeking to recover the value of services rendered to Mr. Cox under the terms of a written contract. The trial judge granted a summary judgment in favor of Flynt Engineering in the amount of $115,753.15. We affirm.

Robert Brown v. Dept of Labor and Workforce Development
M2001-01625-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Walter C. Kurtz
The appellant suffered an injury while on the job. The Department of Labor and Workforce Development denied him workers' compensation benefits. Appellant sued the state for monetary damages. The trial court dismissed the complaint for lack of subject matter jurisdiction. We affirm.

Columbia Advertising v. Ralph Isenhour
M2001-01627-COA-R3-CV
Authoring Judge: Sr. Judge James L. Weatherford
Trial Court Judge: Carol L. Mccoy
In this suit to collect payments for advertising services allegedly rendered to defendant pursuant to an oral agreement, the plaintiff failed to file an order setting the case for trial within the time period allowed by an agreed scheduling order. Shortly thereafter, the trial court dismissed the case for failure to prosecute. The plaintiff filed a Tennessee Rule of Civil Procedure 60 motion seeking relief from the order of dismissal on the grounds that by mistake, counsel had failed to calendar the scheduling deadlines. The trial court found that plaintiff failed to offer an adequate basis to grant relief from the order of dismissal under Rule 60 and denied the motion. For the reasons set out in this opinion, we reverse the decision of the trial court and remand this case for a trial on the merits.

Dawn Larsen Niceley v. James Jacob Niceley, IV
M2001-02182-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol A. Catalano
After a sixteen-year marriage and one child, Husband and Wife both filed for divorce. After hearing the evidence, the trial court fashioned a parenting plan which named Husband the primary residential parent during the school year and named Wife the primary residential parent during the summer and most holidays and school breaks; valued and divided the marital property; and awarded Wife attorney's fees as alimony in solido. We affirm the parenting plan and the distribution of marital property but reverse the award of attorney's fees because the trial court found Wife was not economically disadvantaged.

Margarette Adair v. Vincent Scalf d/b/a V & T Topsoil
M2001-00677-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Claudia C. Bonnyman
This is an action to abate a temporary nuisance of dust and noise attributable to the removal, processing and sale of topsoil ostensibly incidental to the development of real property owned by the defendant Scalf adjacent to the residence of the plaintiff, and for damages. A declaratory judgment against the Metro Government that it failed to enforce its zoning regulations was denied. Metro Government cross-claimed for declaratory relief that Mr. Scalf's removal, processing and sale of topsoil on residential property was forbidden by Ordinance. This relief was granted. The judgment, as modified, is affirmed.

Sonya Engstrom v. Todd Engstrom
M2001-01448-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Clara W. Byrd
The trial court divided the marital property of a divorcing couple, awarding the wife the marital home and the husband his leather business. The husband appealed, arguing that the property division was inequitable because the home was worth much more than the business. We affirm the trial court.

David Ogilvi v. Ronald Ligon
M2001-01686-COA-R3-CV
Authoring Judge: Sr. Judge James L. Weatherford
Trial Court Judge: Russell Heldman
In this boundary line dispute case, the appellee, who moved to her property in 1967, used an unopened street and a garage on the unopened street located between her land and the adjacent property, which the appellants acquired in 1987. The appellee stored items in the garage, maintained the unopened street, and made improvements to the garage over the years. Later, a dispute arose between the parties and the appellants filed suit to establish the boundary line between the two properties, their ownership of half the unopened street, the garage and certain land behind the garage. The trial court concluded that the appellee had acquired: 1) a perpetual easement to use the west half of the garage; 2) a perpetual easement by prescription for the use of the entire driveway on the unopened street; 3) fee simple title to all of the land in the unopened street west of the joint driveway; and 4) easement and fee simple title to land to the north or rear of the garage enclosed within and underneath her fence. The trial court found the appellants entitled to an easement for the use of the easterly half of the garage and an easement by prescription for the use of entire driveway located on unopened street. For the reasons set out in this opinion, we affirm, as modified, the judgment of the trial court.

Charles Watson v. Margaret Ashley
M2001-00668-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Thomas W. Graham
In this action to set aside a deed, the Circuit Court of Franklin County held that the deed had been procured by persons in a confidential relationship with the grantor and that the presumption of undue influence had not been rebutted by clear and convincing evidence. We affirm the trial court's action in setting aside the deed.

Charles Chapman v. Kathy Kelley
M2001-00928-COA-R3-CV
Authoring Judge: Judge Hamilton V. Gayden, Jr.
Trial Court Judge: Stella L. Hargrove
This is an appeal from the trial court's dismissal of an action filed by Plaintiff against the Maury County Circuit Court Clerk and the Maury County Deputy Circuit Court Clerk. This case concerns the application of the qualified judicial immunity defense and the related question of whether the trial court abused its discretion in refusing to allow the Plaintiff to amend the original complaint under Rule 15 of the Tennessee Rules of Civil Procedure. The gravamen of Plaintiff's original complaint is that the Plaintiff suffered damages as a result of negligence of the Deputy Court Clerk by her alleged negligent administration of the criminal court docket that ultimately led to the wrongful arrest and incarceration of the Plaintiff based on a capias issued by the judge. The Defendant Maury County Circuit Court Clerk, who was sued for negligent supervision, interposed the defense of qualified judicial immunity and upon a motion to dismiss, the trial judge dismissed the case against the Maury County Circuit Court Clerk. A Maury County Deputy Circuit Court Clerk was originally sued as Jane Doe for negligent administration of the criminal court docket; when the Deputy Clerk's identity was revealed, the Plaintiff amended his complaint to specifically name her. Subsequently, a second motion to dismiss was filed by the Maury County Deputy Circuit Court Clerk, likewise interposing the defense of qualified judicial immunity. The Plaintiff filed a motion to alter or amend the original dismissal as to the Maury County Circuit Court Clerk and the Plaintiff also filed a second motion to amend the original complaint to allege reckless conduct on the part of the Clerk and the Deputy Clerk. The trial court overruled the motion to alter or amend the original dismissal of the action against the Maury County Circuit Court Clerk , granted the motion to dismiss as to the Maury County Deputy Circuit Court Clerk, and denied Plaintiff's motion to amend. For reasons stated below, the court affirms the action of the trial court.

Sue Ann Bowser v. John Bowser
M2001-01215-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Jim T. Hamilton
Prior to a determination on a complaint for divorce filed by Ms. Bowser, the trial court found the parties to be married pursuant to the common law of Ohio after their first divorce in that state in 1984. The trial court then classified and distributed the marital property and denied Ms. Bowser's request for rehabilitative or in futuro alimony. We affirm the decision of the trial court finding that a common law marriage existed, affirm the trial court's distribution of property, modify the alimony decision and remand the cause for further proceedings consistent with this opinion.

C.J.H. v. A.K.G
M2001-01234-COA-R3-JV
Trial Court Judge: John P. Damron
In this appeal the mother and father of a young child appeal the order of the trial court denying the termination of the father's parental rights. An order establishing the father's paternity had been entered after the child's birth, and the father was ordered to pay child support and granted visitation. While the father has met his monetary obligations, he has not seen his daughter since her birth, or attempted to see her, and has no interest in establishing a relationship with his daughter. The mother and father submitted a joint petition to terminate the father's parental rights, and the trial court denied this petition, finding that termination was not in the best interest of the child. The parties appeal that denial to this court. We affirm.

Steven Jameson v. Katrina Redmund
M2001-01108-COA-R3-CV
Authoring Judge: Judge Hamilton V. Gayden, Jr.
Trial Court Judge: Robert F. Corlew Iii
This is an appeal from the trial court's final order denying appellant's petition for a change of the sole care, custody and control of the parties' three minor children and the trial court's order denying appellant's alternative petition for an increase in visitation. We hold that the trial court properly denied a change of the sole care, custody and control and properly denied appellant's alternative petition for increased visitation. Counsel for the appellee has petitioned this court for attorney's fees assessed for the hearings in the trial court and for attorney's fees in the immediate appellate case contending that the appeal is frivolous. We decline to award attorney's fees.

Jeri Vincent v. CNA Insurance
M2001-02213-COA-R9-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Russell Heldman
After being injured in an auto accident, Jeri Vincent entered into negotiations with CNA Insurance Company, the insurer of the driver of the other vehicle, attempting to settle her property damage and personal injury claim. The property damage claim was settled. Ms. Vincent filed a civil action against CNA Insurance to protect her personal injury claim from the statute of limitations. Later, Ms. Vincent filed a motion to substitute a party pursuant to Tenn. R. Civ. P. 15.03 in order to name the driver of the other vehicle as the defendant. The trial court denied the motion and dismissed the cause of action. We reverse and remand the decision of the trial court because we find that Ms. Vincent complied with the requirements of Tenn. R. Civ. P. 15.03.

Tennsco Corp. v. Elias Attea
M2001-01378-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: R.E. Lee Davies
This is a complaint to remove a cloud on the title to two parcels of property. The Chancery Court of Williamson County granted summary judgment to the plaintiff, holding that as a matter of law a restrictive covenant in a prior deed in the plaintiff's chain of title did not run with the land and did not create an equitable servitude. We affirm.

Leslie Sweatt v. Michael Sweatt
M2000-02537-COA-R3-CV
Authoring Judge: Judge Buddy D. Perry
Trial Court Judge: Muriel Robinson
Mother appeals the trial court's denial of her motion to set aside what she characterizes as a "default judgment" awarding custody of the parties' minor children to the Father. Because the Mother's procedural due process rights were protected by the trial court, and the trial court heard evidence regarding factors which must be considered by a court in making custody modifications, we affirm.

Maurice Schwegman v. Shelby Howard
M2001-00845-COA-R3-CV
Authoring Judge: Judge Buddy D. Perry
Trial Court Judge: Irvin H. Kilcrease, Jr.
Maurice Schwegman filed a complaint alleging claims for breaches of fiduciary duty by appellees, Shelby D. Howard and Malcolm L. Greeno, in their capacity as shareholders with Schwegman in a closely held corporation, breaches of fiduciary duty by Howard and Greeno in their capacity as officers and directors of the closely held corporation, and for breach of contract between Howard and Schwegman with respect to the assignment of an interest in another closely held company. The chancellor granted the appellees' motion for summary judgment and dismissed the case. We reverse as to the breach of contract issue and affirm as to all other issues.

George Hamilton, V v. Stardust Theatre
M2001-00678-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Mccoy
A singer/songwriter brought a copyright infringement suit against a country music theater, its manager and its owner. The defendants admitted to the unlicenced use of the plaintiff's trademark, but argued that the plaintiff did not suffer any damages from their infringement. The trial court did not agree, and awarded the plaintiff over $90,000. We reverse in part, because we believe that the evidence preponderates against the court's award of damages.