COURT OF APPEALS OPINIONS

E2000-0816-COA-R3-CV
E2000-0816-COA-R3-CV
Trial Court Judge: Russell E. Simmons, Jr.

Mitchell Bingham vs. Tammy Bingham
E1999-01768-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Samuel H. Payne
In this post-divorce case, Mitchell Blain Bingham filed a petition seeking the custody of his minor child. The trial court, instead, awarded the child's custody to the child's paternal grandparents, who, prior to the trial court's order awarding them custody, were not parties to the action and had not previously petitioned for custody. Both of the child's parents appeal the award of custody to the paternal grandparents. We vacate the trial court's judgment and remand for further proceedings.

In re: Estate of Willette Bonita Carnahan
M1999-00494-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Tom E. Gray
This appeal arises from a will contest in which the defendant has appealed from a jury verdict invalidating a will on the grounds of unsound mind and undue influence. The deceased executed two wills. The first will was executed in 1985 naming the plaintiff who was a friend, employee, and the son of the family who cared for her in her later years as the sole beneficiary. The second will was executed in 1993 naming the defendant, a man who share cropped tobacco on her farm and was paid to mow her lawn, as the sole beneficiary. The plaintiff alleged that at the time the latter will was executed, the testator was of unsound mind and had been unduly influenced by the defendant. At trial, the jury returned special findings that the deceased was not of sound and disposing mind on December 29, 1993, when the second will was executed and that she was unduly influenced by the defendant in making the last will and testament. On appeal, the defendant presents three issues: (1) whether there was material, substantial evidence to support the jury findings, (2) whether the trial judge erred in instructing the jury regarding a presumption of undue influence and the burden of proof on finding a confidential relationship, and (3) whether the trial court erred in assessing court costs against the defendant and not awarding him attorneys fees. We affirm the judgment.

Heatherly vs. Merrimack Mutual Fire Ins. Co.
M1998-00906-COA-R10-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Thomas Goodall
This extraordinary appeal involves a dispute between two homeowners whose house was damaged by fire and the two insurance adjusting companies hired by the homeowners' insurance carrier to investigate their claim. Believing that their claim had been fraudulently processed, the homeowners filed suit in the Circuit Court for Sumner County against their insurance carrier and the two adjusting companies. The three defendants moved to dismiss the complaint as to the adjusting companies. After the trial court denied the motions and declined to grant an interlocutory appeal, the two adjusting companies petitioned for a Tenn. R. App. P. 10 extraordinary appeal. We granted the application and now reverse the trial court's denial of the motion to dismiss because the homeowners have conceded that they have no breach of contract claim against the adjusting companies and because we have concluded that the homeowners' claims are barred by the statute of limitations.

Mahan vs. Mahan
M1999-01366-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol A. Catalano
In this divorce case, the husband appeals the award of custody of the children to the wife, the admission of certain evidence at trial, and the redistribution of marital property on a post-judgment motion following his bankruptcy. We affirm the trial court.

Clifton vs. Acosta-Delgado
M2000-00253-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Muriel Robinson
This is a post-divorce child custody dispute. The mother filed a petition to regain custody of the parties' three children after she had entered into an agreed order in 1995 granting custody to the defendant father. After hearing testimony on, inter alia, the father driving while intoxicated with the children in the car with him, the trial court found a material change in circumstances, granted custody to the mother, and ordered the father to pay child support. The father appeals, arguing that there was not a material change in circumstances sufficient to warrant a change in custody, that the trial court inappropriately considered his child support arrearage prior to the 1995 agreed order, and that the trial court miscalculated his income, resulting in an unreasonably high child support award. We affirm, finding a material change in circumstances warranting a change in custody, and finding that the evidence does not preponderate against the award of child support.

Joseph Henry, et al vs. Bi-District Board of Urban Ministry, Inc., et al
M2000-01128-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Hamilton V. Gayden, Jr.
This appeal arises from an action for negligence. Plaintiff was sleeping in a homeless day shelter when he was struck in the head by Assailant, who was another guest of the shelter. Plaintiff brought suit against Shelter and its controlling Board for failing to provide security. The trial court found that neither Shelter nor Board owed a duty to Plaintiff because providing security would place an onerous burden on the parties. We affirm.

Dry Tech, Inc. vs. Ken Riddle, d/b/a Nu Steam
M2000-01411-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Tom E. Gray
This appeal arises from a breach of contract and/or quantum meruit action filed by the Appellee against the Appellant in the Chancery Court of Sumner County. The Appellant filed a counterclaim against the Appellee. The Appellant served upon the Appellee a request for admissions. The Appellee failed to respond within thirty days. The Appellant moved the trial court to enter an order deeming the matters contained in the request for admissions to have been admitted by the Appellee. The trial court denied the Appellant's motion and entered a judgment in favor of the Appellee on the complaint. The trial court entered a judgment in favor of the Appellant on one of the claims of the counterclaim and dismissed the other two claims.

Jerry Luster vs. Alan Bargery, et al
W2000-00022-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Jon Kerry Blackwood
Prisoner filed petition for habeas corpus alleging that he received an amended sentence of six years for drug violation instead of the original eight-year sentence with probation. Petitioner alleges that upon revocation of probation, he was ordered to serve the eight-year sentence instead of the six-year amended sentence. The trial court dismissed the petition, and petitioner has appealed.

Rentenbach Constructors, Incorporated v. Eli Ben
E2000-1213-COA-R3-CV
Trial Court Judge: T.E. Forgety

Polly L. Andrews, v. Maurice J. Salter
M1998-00953-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Thomas W. Brothers

The defendant's automobile ran into the rear of the plaintiff's car. After the collision, the plaintiff learned that she had sustained a ruptured disk and commenced the underlying action, seeking compensation for both personal injury and property damage. At trial, the court admitted evidence that the plaintiff had been involved two prior accidents within the past ten months. The trial court granted a directed verdict to the plaintiff on the issue of liability for the accident, but left open the question of whether the defendant's actions caused the plaintiff's injuries. The jury awarded the plaintiff $2,500 in damages, notwithstanding the fact that her undisputed medical expenses were substantially higher. The plaintiff appealed, arguing that the admission of the prejudicial and irrelevant evidence of prior accidents was error and that the jury improperly speculated on the cause of her injuries. The evidence of the prior accidents was limited, included no proof of personal injuries, and included no connection between the mere occurrence of these accidents and the plaintiff's injuries. Because the evidence of the prior collisions invited speculation, we reverse.

Carolyn Donna Jarvis v. Thomas Holland Jarvis
M1998-00905-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Don R. Ash

This appeal involves the dissolution of a five-year marriage in the Circuit Court for Rutherford County. Following a bench trial, the trial court granted the wife a divorce on the ground of inappropriate marital conduct, divided the marital estate, and ordered the husband to pay long-term spousal support. The trial court also directed the husband to maintain the wife's health insurance for three years and to reimburse her for medical expenses incurred prior to the divorce. On this appeal, the husband takes issue with the decision to award the wife the divorce, the classification and division of the marital property, and the long-term spousal support award. We have determined that the spousal support award should be modified and that the remaining portions of the trial court's decree should be affirmed.

Carl D. Clark, v. Roger D. Lemley, et ux.
M1999-01271-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor W. Charles Lee

This case arises from a dispute between neighbors over the use of an old road which connected Appellant's landlocked farm to a public roadway. The road crossed Appellees' property. After Appellees erected a locked gate across the old road, Appellant sought injunctive relief to permit access to the old road. After a trial, the court found that the old road was never a public road and that no prescriptive easement existed. The court declined to provide the requested relief. Because the evidence does not preponderate against the trial court's findings, we affirm.

Arthur Blair vs. Marilyn Badenhope
E1999-02748-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor Thomas R. Frierson, II

Arthur Blair ("Father") petitioned the Trial Court to modify a prior custody decree entered by a North Carolina court. Marilyn Badenhope, the child's maternal grandmother, has had custody of the child since the child's infancy. This is Father's second attempt in the Tennessee courts to obtain a modification of the North Carolina decree. In this suit, the Trial Court denied Father's petition, holding that Father failed to show that a material change in circumstances had occurred such that substantial harm to the child would not result if Father was awarded custody. Father appeals and contends that the Trial Court erroneously found no showing of a material change in circumstances and that substantial harm would result to the child if the child was placed in Father's custody. The grandmother does not dispute the Trial Court's ultimate decision, but she contends that the Trial Court only had to inquire as to whether a material change of circumstances had occurred and did not have to determine whether substantial harm would result to the child if custody was changed. We affirm.

Paula Sue Gilbert Brownyard, v. Robert Michael Brownyard
02A01-9803-CH-00063
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Chancellor Joe C. Morris

This is a post-divorce action based on a petition for contempt and an accounting for delinquent alimony and child support. The trial court found the father in contempt, and granted the mother past due alimony and child support, attorney fees, and amounts owed for college expenses for the parties’ child. The father appealed to this Court. We affirm in part, reverse in part, modify, and remand.

Gregory Domincovitch v. Wilson County Board of Zoning Appeals
M1999-02334-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor C. K. Smith

Petitioner/Appellant, Gregory Domincovitch ("Petitioner") made a request to the Wilson County Board of Zoning Appeals for a "use permissible on appeal" to establish a 250 foot communication tower on his A-1 zoned property. Defendant/Appellee, Wilson County Board of Zoning Appeals ("the Board") denied this request. Mr. Domincovitch petitioned for Writ of Certiorari to the chancery court and subsequently filed a Motion for Summary Judgment in that court. The chancellor granted Petitioner's Motion for Summary Judgment finding that the Board did not have jurisdiction to deny the permit for construction of the communications tower. The Board appealed the chancery court's decision. We affirm the chancery court's ruling finding that Petitioner had presented evidence fulfilling all requirements set out in Wilson County's zoning ordinance regarding cell tower location, and thus, the Board had no jurisdiction to deny the permit to Petitioner.

Edmond Brothers Supply Company, Inc., v. Boyle and Adams et al.
E1999-027310COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor John S. McLellan, III

Edmond Brothers Supply Company, Inc. (“Plaintiff”), a building materials supplier, sold materials to a contractor for use in a construction project for Bristol Regional Women’s Center, P.C., (“Defendant”). Plaintiff did not send statements to Defendant because the contractor instructed Plaintiff not to bill Defendant. When the project was completed, the contractor took the Plaintiff’s final bill to Defendant for payment. Defendant’s office manager sent a check in full payment to Plaintiff, but Defendant stopped payment on the check and refused to pay the bill. Plaintiff brought
suit against Defendant, individual defendants, and a partnership to enforce a materialmen’s lien for the outstanding debt. All defendants denied enforceability of the lien. The Trial Court dismissed the action to enforce the materialmen’s lien, dismissed the action against the individual defendants and the partnership, and granted judgment to Plaintiff against Defendant on an agency theory. The Trial Court found that the contractor had authority to make the purchases for Defendant and that since Defendant had used the materials in its building, Defendant was obligated to pay for them, despite its instruction to the contractor not to charge any materials for the project. Defendant appeals this judgment. We hold that the contractor had no actual, implied, apparent, or ostensible authority to charge building materials to Defendant. We reverse the judgment of the Trial Court, and dismiss the Complaint against Defendant. Tenn. R. App. Rule 3; Judgment of the Trial Court Reversed; Case Remanded.
 

C.M.Reagan, v. Ima J. Connelly, et al.
E2000-00451-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor W. Frank Brown, III

C.M. Reagan filed this action seeking to collect a money judgment previously obtained against the defendant Dan Connelly ("Connelly"), which judgment was based upon Connelly's guaranty of a note executed by his brother-in-law. Following a bench trial, the court below found that Connelly had fraudulently conveyed three pieces of real property to the defendant corporation, Dan Connelly, Inc. ("the Corporation"). With respect to a fourth piece of property, the trial court found that its transfer to the Corporation was not fraudulent. The trial court, however, went on to disregard the separate identity of the Corporation and find that 96% of the value of the fourth piece of property was available to satisfy the underlying judgment. This determination was based upon the trial court's finding that Connelly owned that percentage of the Corporation's stock. The Corporation and its record shareholders appeal. We affirm in part and reverse in part.

James Roden, et al., v. Clark Heck, Sr., et al.
E2000-00969-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor W. Frank Brown, III

This case involves a chicken -- more specifically a rooster -- that allegedly ran "afoul" of the law. James Roden and his wife, Janet Roden, brought this action against their neighbors, Clark Heck, Sr., and Clark Heck, Jr., after Mr. Roden was injured by a chicken that had escaped from the defendants' property. The trial court granted the defendants summary judgment. We affirm.

William Davidson v. Richard Holtzman, et al.
E2000-01091-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Frank Brown, III

The jury awarded the plaintiff, William Davidson, damages for breach of two oral contracts between Davidson and his former employer, the defendant Richard Holtzman, who, at the time the contracts were made, was the sole shareholder of the defendant Engel Stadium Corporation ("the Corporation"). Defendants appeal, arguing (1) that one of the agreements is barred by the Statute of Frauds; (2) that the same agreement is too indefinite to be enforced; and (3) that the trial court erred in admitting the testimony of another former employee of Holtzman. We affirm.

Jim Hockaday v. Dennis Freels
E1999-02719-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Frank V. Williams, III

This is an action for conversion of a $10,169.59 check. Responding to the plaintiff's allegations, the defendant claimed he had authority to negotiate the check because he and the plaintiff had orally entered into a partnership or joint venture. Following a bench trial, the court below found that no such relationship existed and that the defendant had wrongfully converted the check. We affirm.

William A. Dalton v. Gerald Dale
M2002-01205-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Barbara N. Haynes
Defendant appeals adverse summary judgment as to diminution in value of a 1995 Jaguar XJ6 automobile based upon alleged undisputed expert testimony. Judgment is reversed, and the case is remanded.

Cecilia Hutcheson v. Andrew Hutcheson
M2000-00894-COA-R3-CV
Authoring Judge: Per Curiam
Before these parties were married, Husband earned $60,000.00 per year as an independent insurance agent. Wife earned $50,000.00 yearly as a registered nurse. After their marriage in 1986, Husband never earned more than $10,000.00 yearly. Wife became disabled in 1997 and thereafter received social security benefits. She was awarded alimony of $150.00 weekly upon a finding that Husband was reasonably capable of earning an income from which he could pay this amount. He disagrees. We affirm.

Johnnie Roberts vs. Carl England
M1999-02688-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Vernon Neal
This is an appeal from a bench trial involving a boundary dispute between the parties. Testimony of the parties, other witnesses, the deeds, and the surveys of each party's surveyor were admitted into evidence. Considering all of the testimony and documentation submitted, the trial court held that the boundary as stated by the plaintiff's surveyor was the proper boundary. The sole issue on appeal is whether the plaintiff failed to join a third party adjoining land owner as an indispensable and necessary party, thereby resulting in the failure of the trial court to properly resolve fully and completely the dispute. For the reasons below, we vacate the judgment of the trial court and remand.

Ronald Davis vs. Robert Sanders, et al
M2000-01600-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Stella L. Hargrove
A prisoner filed a petition under the Public Records Act, asking the court to order a prosecutor and a police chief to send him their files on his case. The prosecutor claimed that he had in fact sent a copy of the requested files to the petitioner. The trial court dismissed the petition. We reverse.