COURT OF APPEALS OPINIONS

Scarlett/Patrick Spencer vs. James Aydlotte
W2001-00995-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: George R. Ellis
This is a suit for the termination of parental rights. The Appellants filed a petition in the Chancery Court of Gibson County to terminate the Appellee's parental rights to his child. Following a hearing, the trial court entered an order denying the Appellants' petition. The Appellants appeal the trial court's order denying the Appellants' petition to terminate the Appellee's parental rights. For the reasons stated herein, we affirm the trial court's decision.

Paul Seaton, et al vs. Richard Rowe, et al
E2000-02304-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: John B. Hagler, Jr.
Monroe County -This is an action for specific performance of an option agreement for the sale of some farmland acreage, from which a 60-acre tract was excepted. The trial court dismissed the action, holding that the option agreement did not satisfy the statute of frauds because the description of the excepted property was inadequate and that the deficiency could not be remedied by parol evidence. Thereafter, the plaintiffs filed a motion to "reopen the proof" to introduce evidence to support reformation of the description of the excepted property. The motion was denied. The plaintiffs appeal, arguing that the trial court erred in (1) finding that the option agreement did not satisfy the statute of frauds; (2) refusing to consider parol evidence of the location of the excepted property; and (3) refusing to "reopen the proof" on the issue of reformation. The defendants argue that the appeal is frivolous. We find that the option agreement is sufficiently definite to satisfy the statute of frauds and that parol evidence should have been admitted to locate the excepted property. We therefore vacate the judgment of the trial court and remand for further proceedings consistent with this opinion.

Myron Hubbard vs. Sandi Hubbard
E2001-00110-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Dale Young
The Trial Court granted appellee Judgement before the 30 days to answer process provided in the Rules of Civil Procedure had expired. On appeal, we vacate and remand.

Linda Greene vs. Dr. Woody Stinson
E2001-00628-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: William M. Dender

Linda Greene vs. Dr. Woody Stinson
E2001-00628-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: William M. Dender

George Tipton vs. Axis Fabrication & Machine Co.
E2001-00258-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: W. Dale Young

George Tipton vs. Axis Fabrication & Machine Co.
E2001-00258-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: W. Dale Young

Rouse Construction Co. vs. Interstate Steel Corp.
E2001-00242-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Sharon J. Bell
This is a case wherein the Plaintiff/Appellant, Rouse Construction Company, seeks damages for breach of contract from the Defendant/Appellee, Interstate Steel Corporation. The Chancellor found that there was no meeting of minds between the parties as to essential contract terms and, therefore, ordered that Rouse's claim be denied. The Chancellor further determined that Interstate should be allowed a judgment in the amount of $19,090.00 for materials and plans delivered to Rouse. We concur in the determination of the Chancellor and affirm.

Carl O. Koella, Jr. vs. Fred McHargue, et ux
E2001-00544-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: C. K. Smith
Defendants have right of first refusal on tract of real property. The Trial Court held that the giving of a quitclaim deed did not trigger the right of first refusal. Defendants appealed, we affirm.

CH-00-1207-2
CH-00-1207-2
Trial Court Judge: Floyd Peete, Jr.

Denise Frazier vs. Robert Frazier
E2000-02929-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Sharon J. Bell
Appellant ask the Court to void portions of the marital settlement agreement incorporated in the parties' Divorce Decree in the State of Illinois. The Trial Court refused and granted appellee summary judgment. We affirm.

New Covenant Baptist Church vs. Panther Sark
E2000-02930-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Thomas R. Frierson, II
In this suit New Covenant Baptist Church seeks a declaration that certain restrictions applicable to Technology Park West subdivision do not preclude New Covenant from using one of the lots for driveway purposes to other unrestricted property owned by New Covenant outside the subdivision. Panther Sark, a partnership, and certain other owners of lots in the subdivision were named as Defendants and they filed a counter-complaint seeking a declaration to the contrary. The Trial Court found in favor of New Covenant. We reverse and hold in favor of the partnership and other owners of lots in the subdivision.

Lonnie Wilder vs. Leslie Wilder
E2000-03184-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: John D. Mcafee
In this divorce case, the Trial Court awarded husband attorney's fees against wife. On appeal, we reverse.

Southwest Williamson County Community Assoc. et al vs. Bruce Saltsman
M2001-00943-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: J. Russ Heldman
Being dissatisfied with the State's concept of, and planning for, the extension of State Route 840 through southwest Williamson County, three residents in the County, two nonprofit corporations, and a partnership that owns property in the County, sued J. Bruce Saltsman, Sr. ("the Commissioner"), in his official capacity as Commissioner of the Tennessee Department of Transportation ("TDOT"). Following a bench trial, the court below entered a final judgment including (1) a writ of mandamus ordering the Commissioner to perform a number of "duties" in connection with Route 840; and (2) a permanent injunction enjoining him from moving forward with the planning and construction of Route 840 through Williamson County until he complies with the trial court's order. The Commissioner appeals. In addition to other bases for reversal, he asserts that the trial court lacked subject matter jurisdiction of this controversy. We agree with the appellant that the trial court was without subject matter jurisdiction. Accordingly, we reverse the judgment below in its entirety and dismiss the petition.

Natalya Mazor vs. Kenneth Isaacman
W2000-01485-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Kay S. Robilio
This is a dental malpractice case. The patient visited the defendant dentist in August 1997 for routine root canal surgery. After the surgery, the patient began experiencing "constant" pain in the tooth in which the root canal was performed. She was told by the defendant dentist that this was pain ordinarily felt after root canal surgery. In February 1999, the patient visited another dentist who discovered that a piece of a drill bit had been left inside patient's tooth during the previous root canal. In December 1999, the patient filed a lawsuit against the defendant dentist for dental malpractice. The defendant dentist filed a motion to dismiss, arguing that the patient did not bring the claim within the one year statute of limitations. This motion was granted and the patient now appeals. We reverse, finding that the patient had one year from the time she discovered or should have discovered the foreign object in which to file her lawsuit.

Arthur Anderson vs. Edwin Roberson
W2000-01879-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George H. Brown
This appeal presents the sole issue of in personam jurisdiction of a nonresident corporation and the nonresident individual owning a majority interest in the corporation by virtue of their activities, as described in the Tennessee Long Arm statute, or alternatively, as co-conspirators with defendants, subject to the jurisdiction of the court.

Judy Burroughs vs. Robert Magee
W2001-00238-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Joseph H. Walker, III
This is a personal injury and wrongful death case. The plaintiff and her husband were involved in an automobile accident. The plaintiff sued the driver of the other vehicle for her husband's wrongful death as well as for injuries she sustained in the accident. The plaintiff named the driver's physician as an additional tortfeasor, alleging that the physician negligently prescribed drugs to a known drug addict, negligently prescribed two contraindicated drugs, and negligently failed to warn his patient of the risks of driving while under the influence of the drugs. The trial court granted the physician's motion for summary judgment on the grounds that the physician had no duty to unidentifiable third parties such as the plaintiff. We affirm in part and reverse in part, finding that the physician owed a duty to the plaintiff and the decedent to warn his patient of the risks of driving while under the influence of the prescribed drugs.

Dorothy Owen vs. George Summers
W2001-00727-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Dewey C. Whitenton
This is an action to set aside a warranty deed. Plaintiff-Grantor filed suit on February 11, 1997, to set aside a deed executed July 11, 1989, on the grounds of fraud and mental incompetency. The defendant grantee denied fraud and mental incompetency and affirmatively relied upon the seven-year statute of limitations. Following a jury trial, which ended in a mistrial, the parties stipulated that the case be submitted to the chancellor who conducted the trial for a nonjury determination from the trial transcript and trial exhibits. The chancellor found that the seven-year statute of limitations had been tolled by virtue of the grantor's mental incompetence, the deed was procured by fraud, and that the grantor was mentally incompetent on the date of the execution of the deed. The chancellor rescinded the deed. Defendant-Grantee has appealed. We affirm.

Michael Cheslock vs. Bd. of Admin., etc .
W2001-00179-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Floyd Peete, Jr.
On December 14, 1995, Memphis Police Lieutenant Michael Cheslock appeared before the Pension Board of Memphis, Tennessee, to request a line of duty disability pension as provided by the Memphis Code of Ordinances, Section 25-1(27). Mr. Cheslock had been diagnosed by two psychiatrists as disabled by job related Post Traumatic Stress Disorder. The Pension Board refused the line of disability pension, determining that Mr. Cheslock did not meet the requirements as defined by the code. Mr. Cheslock filed a petition for writ of certiorari in the Chancery Court of Shelby County. The petition was denied and this appeal followed. We affirm.

Roberts vs. Everhart Steel Const. Co. Inc.
E2001-00187-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Samuel H. Payne
In this action for damages for personal injuries allegedly caused by defendant's negligence, a jury awarded damages. On appeal, we conclusively presume the Judgment is correct, because we cannot review all of the evidence heard by the jury.

Tennessee Farmers Mutual Ins. Co. vs. SA W. Jeong
E2001-00246-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Lawrence H. Puckett
Tennessee Farmers Mutual Insurance Company ("Tennessee Farmers") brought a declaratory judgment action against Sa W. Jeong ("the injured party"); her daughter, Hyunlan Lee; and her son-in-law, Jack Sung K. Lee (the defendants Lee are referred to herein collectively as "the Lees"), asking the trial court to "declare whether or not Tennessee Farmers is obligated to afford liability coverage to [the Lees] in connection with the lawsuit filed against them by [the injured party]." At the conclusion of a bench trial, the trial judge ruled in favor of the defendants, finding that the word "reside" and its derivatives "resident" and "residing," particularly as the latter two words are used in the policy language excluding coverage of a claim by a "covered person" or one "residing in the same household," are ambiguous, and that the language of the policy should be construed against Tennessee Farmers as the drafter of the policy. The court ordered Tennessee Farmers to provide liability coverage to the Lees with respect to the subject lawsuit. Tennessee Farmers appeals, raising issues as to whether the trial court correctly ruled that the policy is ambiguous, and whether the trial court was correct in finding that the word "resident" was susceptible to a reasonable meaning that would exclude the injured party from the ambit of the subject exclusionary language in the policy. We find that the subject policy provision is not ambiguous; however, we conclude that the injured party was not "residing in [the Lees'] household" as that language has been construed by applicable case law. Accordingly, we affirm.

Phillip Ledford vs. Bradley Memorial Hospital
E2001-00291-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Lawrence H. Puckett
The plaintiffs, Phillip A. Ledford ("Ledford") and his wife, Elizabeth Ledford, filed suit against the defendants, Daniel V. Johnson, M.D., Bradley Memorial Hospital ("the Hospital"), and Southeast Tennessee Orthopedics, Inc. ("Southeast"), alleging medical malpractice arising out of surgery performed by Dr. Johnson on Ledford's broken arm. The trial court granted the defendants summary judgment. We affirm.

Blake Burton, et al vs. Hardwood Pallets, Inc., et al
E2001-00547-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Samuel H. Payne
This appeal involves a dispute between the sellers of a business and the bank that financed a portion of the purchase price. The plaintiffs, Blake Burton and Michael Burton, entered into an agreement with the defendant, Hardwood Pallets, Inc., to sell the Burtons' pallet manufacturing business. As partial consideration for the sale, Hardwood Pallets executed an unsecured promissory note to the Burtons in the amount of $1,000,000. Additional consideration for the sale was obtained by way of an $800,000 loan from the defendant, AmSouth Bank, to Hardwood Pallets; as a part of the bank transaction, Hardwood Pallets pledged its assets as collateral. As a condition to the making of the loan, AmSouth required the Burtons to execute a subordination agreement. When Hardwood Pallets defaulted on the bank loan, AmSouth sold the collateral at a private sale. Litigation ensued. In addition to suing Hardwood Pallets and its shareholders, the Burtons sued AmSouth, alleging procurement of breach of contract and civil conspiracy to defraud. AmSouth filed a counterclaim, alleging that the Burtons breached the subordination agreement. It also filed a motion for summary judgment, asserting that it acted within its rights under the subordination agreement. The trial court entered a judgment in favor of AmSouth pursuant to Tenn. R. Civ. P. 54.02. We affirm.

2001-00383-COA-R3-CV
2001-00383-COA-R3-CV
Trial Court Judge: W. Neil Thomas, III

James Laney vs. Evelyn Oldham
E2000-02710-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: W. Frank Brown, III
Evelyn B. Oldham ("Defendant") sold to James C. R. Laney ("Plaintiff") a house and lot located next to a Chalet owned by Defendant. Defendant granted Plaintiff an easement for use of a driveway. Plaintiff later converted his residence into a business. In 1993, the Trial Court entered an Order interpreting the easement to allow Plaintiff's use of the driveway for a "normal amount of delivery." No appeal was taken from this Order. In 2000, the Trial Court, but a different trial judge, entered another Order interpreting the 1993 Order to allow for a normal amount of business deliveries using the driveway. We conclude that the 1993 Order permits only a normal amount of deliveries consistent with a residential use. We reverse the decision of the Trial Court, and remand for further proceedings.