COURT OF APPEALS OPINIONS

Regina Helderman and husband, Troy Helderman v. Matthew R. Smolin, M.D., et al.
W2004-01206-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Don H. Allen

This appeal involves a claim for medical malpractice. The plaintiff’s cardiologist initially diagnosed her as having a heart condition which required surgery to repair. The plaintiff’s cardiologist referred the plaintiff to a cardiothoracic surgeon for surgical repair of the condition. The plaintiff subsequently sought a second opinion, and the second cardiologist determined that the plaintiff did not need surgery. Thereafter, the plaintiff’s original cardiologist apparently changed his diagnosis of the plaintiff’s condition. After some time passed, the cardiothoracic surgeon performed surgery on the plaintiff, which was ultimately determined to be unnecessary. The plaintiff sued her original cardiologist and the cardiothoracic surgeon for medical malpractice. Through discovery, it was determined that the cardiothoracic surgeon did not review the plaintiff’s entire medical records prior to performing the surgery. The cardiologist filed a motion for summary judgment arguing the cardiothoracic surgeon was the sole proximate cause of the plaintiff’s injuries. In response, the plaintiff submitted an affidavit from her expert witness stating that the cardiologist had a duty under the applicable standard of care to directly communicate his changed diagnosis to the cardiothoracic surgeon, and his actions were a “significant contributing factor” to the plaintiff’s injuries. The cardiologist filed a motion to strike the affidavit of the plaintiff’s expert as contradictory to his deposition testimony. The trial court partially granted the cardiologist’s motion. After doing so, the trial court granted the cardiologist’s motion for summary judgment. The plaintiff appealed to this Court, and we reverse.

GSB Contractors, Inc. v. Harry F. Hess, Jr. and Connie Hess
W2003-03068-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert A. Lanier

Following a hail storm which severely damaged the Appellees’ home, the Appellee contracted with the Appellant, a construction contractor, to repair the damage. The Appellees’ insurance policy covered the damage done to the home by the hail storm, but the Appellees entered into a collateral agreement with the Appellant to do additional work to the home. The insurance company paid for all work done by the Appellant in repairing the damage from the storm, but the Appellees refused to pay the balance due on work completed under the collateral agreement citing poor workmanship by the Appellant’s subcontractors. The Appellant subsequently filed suit against the Appellees in general sessions court seeking to recover the balance owed. Following a judgment in favor of the
Appellant, the Appellees appealed to the circuit court and filed a counterclaim against the Appellant.  Following a trial, the circuit court ruled in favor of the Appellees. In proving their damages, the Appellees presented the testimony of two expert witnesses at trial. The circuit court ruled that the proper measure of damages was the cost of repairing the defective work. The Appellant filed an appeal to this Court contesting the trial court’s selection of “cost of repair” as the appropriate measure of damages in this case, as well as the trial court’s evidentiary rulings regarding certain testimony. We affirm.

George Haskel Stewart v. Demple L. Sewell, et al.
M2003-01031-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Buddy D. Perry

Plaintiff, stepson of Clara Stewart, contends that attorneys-in-fact of Mrs. Stewart acted in violation of Tenn. Code Ann. 34-6-108(c)(6) and their confidential relationship with Mrs. Stewart, which deprived him of inheriting real property formerly owned by his father under the will of Mrs. Stewart. The attorneys-in-fact (Fiduciaries) are the daughter and son of Mrs. Stewart. They sold the property while their mother was mentally and physically incapacitated, living in a nursing home. The property was sold for substantially less than the appraised value to a daughter and son-in-law of one of the Fiduciaries and two of their friends. Mrs. Stewart, who inherited the property from Plaintiff's father, was the sole owner of the property at the time of the sale. The Fiduciaries, however, invested the proceeds in certificates of deposit with themselves identified as co-owners with Mrs. Stewart with right of survivorship. The Fiduciaries became sole owners of the entire sales proceeds upon the death of Mrs. Stewart. During the administration of Mrs. Stewart's estate, the Fiduciaries, now executors, advised Plaintiff that his devise adeemed by extinction. Plaintiff brought this action to recover the real property or the fair market value thereof from the Fiduciaries and/or the buyers. The trial court dismissed the complaint without making findings, stating only that it was not sustained by the proof. Plaintiff appealed. We reverse finding that the Fiduciaries acted in contravention of the power of attorney and Tenn. Code Ann. 34-6-108(c)(6) and breached their fiduciary duties to Mrs. Stewart, and award Plaintiff a judgment against the Fiduciaries for the net proceeds resulting from the sale of the devised property plus pre-judgment interest from the date of sale.

Harry Douglas Lane v. Harry Lane, Henderson, Hutcherson, & McCullough PLLC., E. Laddell McCullough, CPA, Harry Lane Nissan, Inc., and Jeffrey E. Cappo
E2003-02763-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor John F. Weaver

In this dispute over the plaintiff's share in the proceeds of the sale of the business, the Trial Court awarded Judgment to plaintiff in the amount of $571,453.00, plus interest based on the "sales price" as found by the Judge. On appeal, we affirm.

In Re M.J.M., Jr., L.P.M., & C.A.O.M. - Concurring
M2004-02377-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Samuel E. Benningfield

I continue to disagree with the standard of review employed by the Court in this case for reasons discussed at length in In Re Z.J.S. No. 2002-02235-COA-R3-JV, 2003 WL 21266854 at *18-22 (Tenn.Ct.App.June 3, 2003) (no Tennessee Rule of Appellate Procedure 11 application filed) and Estate of Acuff v. O’Linger, 56 S.W.3d 527, 533-37 (Tenn.Ct.App.2001). A preponderance of the evidence standard is inconsistent and irreconcilable with a clear and convincing evidence standard either in the trial court or on appeal.

In Re M.J.M., Jr., L.P.M., & C.A.O.M. - Concurring
M2004-02377-COA-R3-PT
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Samuel E. Benningfield

I agree fully with the majority’s resolution of this case and the issues raised therein. I write separately, however, to express my concern with the apparent inconsistency in the grounds alleged by the Department. Specifically, while the parents’ failure to make reasonable efforts to provide a suitable home for the first four months after removal of the child from the home is a definition of abandonment, Tenn. Code Ann. § 36-1-102(1)(A), it is questionable to me whether the Department can rely on that ground when it has entered into a permanency plan that gives a parent one year to find stable and suitable housing. The majority found that ground unavailable because the Department did not use reasonable efforts, making it unnecessary to address my concern. I agree with that conclusion, but want to make it clear that some question about reliance on that ground may exist regardless of the Department’s efforts.

In Re M.J.M., Jr., L.P.M., & C.A.O.M.
M2004-02377-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Samuel E. Benningfield

This appeal involves a mother’s efforts to prevent the termination of her parental rights to her three children while she completes her treatment for methamphetamine addiction. After the Tennessee Department of Children’s Services took custody of the children, it devised a permanency plan obligating the mother to address her drug addiction and to complete other remedial tasks within twelve months. However, after six months of the mother’s failed attempts to restore order to her life, the Department filed a petition in the White County Juvenile Court to terminate the mother’s parental rights. Between the filing of the Department’s petition and the hearing, the mother made significant steps toward completing the tasks in the permanency plan. Despite the mother’s progress, the juvenile court terminated her parental rights on the grounds of abandonment, failure to comply with the permanency plan, and failure to remedy the conditions that had required the children’s removal. The mother has appealed. We have determined that the Department has failed to present clear and convincing evidence of one or more grounds for terminating the mother’s parental rights.

Guy G. Bigger, Jr., et al. v. Anthony I. Fields, Guy M. Fields, Patrick E. Smith, et al.
M2004-01489-COA-R3-CV
Authoring Judge: Judge Donald P. Harris, Sr.
Trial Court Judge: Chancellor J. B. Cox

As found by the trial court, appellant, Guy G. Bigger, Jr., was defrauded by Anthony Fields and Guy Fields with regard to the sale of a 332 acre tract of land in Marshall County, Tennessee. The Fields’ conveyed a portion of the tract to the appellee, Patrick Smith. Mr. Bigger brought suit seeking, among other things, to set aside the Fields’ deed to Mr. Smith alleging it to be a fraudulent conveyance. The trial court found Mr. Smith to be a bona fide purchaser who gave adequate consideration for the transfer and denied relief as to Smith. Mr. Bigger appealed challenging the findings of the trial court. We find the evidence does not preponderate against the trial court’s findings and affirm.

In The Matter of: M.J.J.
M2004-02759-COA-R3-PT
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge John P. Hudson

In this termination of parental rights case, the juvenile court terminated the parental rights of the mother and father, and the mother appeals. We affirm.

Robert Brewster, Jr. v. Fayette County Board of County Commissioners, et al.
W2003-01842-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Dewey C. Whitenton

The Fayette County Board of Commissioners denied Plaintiff/Appellant’s application for a change in zoning. The Chancery Court for Fayette County affirmed. We affirm.

Cory D. Holland v. Packard's Service Center, LLC.
M2003–01807-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Carol L. Soloman

Plaintiff claims that his 1990 Nissan with over 200,000 miles was rendered inoperable due to Defendant’s installation of a faulty alternator. He seeks damages for the diminution in the value of the vehicle, wages he allegedly lost while the vehicle was inoperable, and damages under Tennessee’s Consumer Protection Act. Plaintiff’s claims under Tennessee’s Consumer Protection Act were dismissed upon summary judgment. During the trial, the court granted competing motions excluding both parties’ expert witnesses. The jury returned a verdict for the defendant on the remaining claims. Plaintiff appeals. We affirm.

Clifford Wilson v. Gay Lynn Wilson
M2003-02261-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Muriel Robinson

This case involves a dispute over the proper amount of child support to be paid for the parties' two minor children. Father requested a child support adjustment due to the emancipation of the parties' oldest child. He additionally requested a downward deviation of his child support payments due to significant additional parenting time in excess of that contemplated by the Tennessee Child Support Guidelines, as well as, significant additional monies paid for private school and other expenses for the children. The previous court order required Husband to pay $4,100 per month for their three minor children based on an income of $10,000 per month. The trial court determined that Husband's new child support amount for the remaining two minor children would be $3,700 per month. Father argued that the proper amount after the emancipation of their oldest child should reduce his child support to $3,200 per month. Father also argued that he should be entitled to a downward deviation reducing his child support to $1,000 per month for his two minor children. We agree with Father that the trial court incorrectly modified his child support following the emancipation of the parties' oldest child. Although Husband's current income is in excess of $10,000 per month, Wife did not carry her burden of proving that additional child support based on an amount over $10,000 per month is reasonably necessary. Child support should be set at 32% of $10,000, $3,200 per month. With regard to Father's request for a downward deviation of his child support obligation, we find that there has been no change of circumstances since the last court order and that this issue could have and should have been litigated at the time of the previous Order, so the matter is barred by res judicata. Child support is set at $3,200 per month for the remaining two minor children.

State of Tennessee, Department of Children's Services, vs. S.A.M.H.
E2004-02543-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Steven H. Jones

On May 27, 2004, the Juvenile Court Referee entered an order terminating the parental rights of S.A.M.H. ("Mother") to her two minor daughters. The Referee concluded that the State of Tennessee, Department of Children's Services ("DCS") had proven by clear and convincing evidence that grounds to terminate Mother's parental rights existed and that doing so was in the best interests of the children. Pursuant to Tenn. R. Juv. P. 4(c)(2), the Referee was required to inform Mother of her right to request a rehearing before the Juvenile Court Judge as well as the manner and time limits within which to perfect such a request. The Referee inadvertently failed to inform Mother than she had only five judicial days in which to file her request for a rehearing. Mother filed her request for a rehearing one day late. The Juvenile Court Judge dismissed Mother's appeal after concluding that it was untimely and the Referee's decision had become final after five judicial days. We vacate the judgment.

Michael Sowell v. James W. Davis
W2004-02079-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Clayburn L. Peeples

Pro se plaintiff appeals the order of the trial court dismissing his personal injury lawsuit for failure to comply with an order compelling discovery. Because no order compelling discovery was entered by the trial court, we reverse.

In the Matter of: The Estate of Emory B. Pegram, Deceased v. Gregory Baxter Pegram, et al.
W2004-01179-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Robert S. Benham

Appellant, the widow of decedent, appeals from probate court judgment that decedent died intestate. Decedent had executed an individual will, as well as a joint mutual will with Appellant, on the same day. Both wills executed by decedent contained revocation clauses purporting to revoke all prior wills. Neither Appellant, nor the witnesses to the execution of the wills, could recall the order in which Decedent executed the wills. Probate court held that, since each of Decedent’s two wills purported to revoke all prior wills and the order in which they were executed could not be established, Decedent died intestate. Finding no error, we affirm the judgment of the probate court.

Ridgelake Apartments v. Harpeth Valley Utilities District of Davidson and Williamson Counties
M2003-02485-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

Harpeth Valley Utilities District of Davidson and Williamson Counties is a supplier of water and sewer services with charges for such services being based on gallonage of water measured by a water meter installed where the water main supply line joins the water line owned by the customer. Ridgelake Apartments is an apartment complex served by both a main residential water meter and an irrigation meter. Water supplied through the irrigation meter is not subject to sewer charges, but water supplied through the main residential meter is subject to such charges. Over a period of years, leaks developed in the water lines owned by Ridgelake on the Ridgelake side of the main residential water meter. Ridgelake sought reimbursement of sewer charges for water lost in these leaks on the basis that such water did not enter the sanitary sewer system. The trial court granted summary judgment to the Utility District, and we affirm the action of the trial court.

Earl E. Rivers v. Kathleen J. Rivers
W2004-02149-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Dewey C. Whitenton

This is an appeal from a final decree of divorce involving issues of alimony in futuro and an award of attorney fees. Husband appeals. We reverse in part, affirm in part, and remand.

Andrew J. Matthews, v. E. E. (Eddie) Matthews, et al.
M2003-01159-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Chancellor Robert E. Corlew, III

This is an appeal from a declaratory judgment action. Crossroads Market, LLC, a grocery, was owned by two brothers whose differences escalated to a point that necessitated an action to dissolve the LLC. The trial court granted the petition to dissolve the LLC and ordered the LLC be sold at auction to the highest bidder. Appellant, one of the brothers, was the successful bidder; however, a dispute arose immediately following the auction concerning the liabilities of the LLC. The Appellant insisted that a certain $300,000 promissory note was not a liability of the LLC while his brother, the Appellee, the holder of the note, insisted it was. The court, finding that the LLC had identified the promissory note as a liability on its financial reports and tax returns from the inception of the LLC, ruled that the note was a liability of the LLC when it was purchased at auction by the Appellant. Appellant appealed. We affirm.

Progeny Marketing v. Farmers & Merchants Bank
M2003-02011-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Donald P. Harris

This case involves a dispute regarding whether Tennessee courts have personal jurisdiction over a Georgia bank regarding a contract for business services provided by a Tennessee business. The trial court found no personal jurisdiction over the Georgia bank and dismissed Plaintiff's Complaint for lack of personal jurisdiction. We find that the Tennessee Long Arm Statute does give Tennessee courts personal jurisdiction over the Georgia bank; therefore, we reverse this case and remand it for further proceedings.

Lisa R. Altman v. Alan Altman
M2003-02707-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Carol A. Catalano

This appeal involves the division of marital property. Following almost fifteen years of marriage, both the husband and the wife sought a divorce in the Chancery Court for Montgomery County. The trial court, disregarding the marital dissolution agreement and quitclaim deed that the husband induced the wife to sign following their separation, awarded 58.5% of the marital estate to the husband and the remainder to the wife. The husband asserts on this appeal that the trial court erred by declining to follow the marital dissolution agreement and by overvaluing the marital property. We find that the trial court properly ignored the marital dissolution agreement and the quitclaim deed and that its valuation of the marital property is supported by the evidence. We have also determined that the manner in which the trial court divided the marital property was equitable.

Judy Dodson v. St. Thomas Hospital, et al.
M2004-01102-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Judge Barbara N. Haynes

Appellant, an at-will employee, was terminated from her position with St. Thomas Hospital because an investigation led Hospital employees to the conclusion that Appellant was involved in the harassing and stalking of another employee. Appellant sued Hospital and two employees for intentional infliction of emotional distress and negligent infliction of emotional distress stemming from her termination. Appellees moved for summary judgment, which was granted. We affirm.

In the Matter of: The Estate of Frances E. Milam, Deceased
W2003-03061-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Donn Southern

This appeal involves the construction of a holographic will. Following the decedent’s death, two documents in her own handwriting were found among her papers which the probate court admitted as her holographic will. The will contained devises of real and personal property to named
individuals and charities. At her death, however, the decedent owned property in excess of the devises made in her will. The executor filed three separate petitions to construe the decedent’s will.  The children of the decedent’s sister argued that the decedent died intestate as to the excess personal property and her personal residence, which the decedent did not specifically devise in her will. The probate court held that the decedent’s will contained a residuary clause, therefore, all of the decedent’s remaining assets passed through the residuary clause to the individuals and charities named in her will on a pro rata basis. In addition, the probate court held that the decedent died intestate as to her residence, which passed to her sister’s children by intestate succession. We affirm in part, reverse in part, and remand this case to the probate court for further proceedings consistent with this opinion.

William Edward Hargrove v. Merriellen Hargrove
W2004-00237-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Ron E. Harmon

This case is about post-divorce modification of child support. At the time of the parties’ divorce,
they adopted a permanent parenting plan which designated the father as the primary residential
parent of the parties’ son and the mother as the primary residential parent of the parties’ daughter.
Each had a child support obligation to the other, which was offset with the father paying the
difference to the mother. The daughter graduated from high school. As a result, the father’s child
support obligation to the mother was terminated, and the mother was ordered to pay increased child support to the father for their son. The trial court also ordered the mother to reimburse the father for the son’s health insurance premiums and to pay the father’s attorney’s fees. The mother appeals, arguing that her child support obligation could not be modified because the evidence did not indicate a significant variance in the mother’s income as required by Tennessee law. We affirm the ruling of the trial court as modified.
 

Patricia Lynn Finger v. James Gang Amusements
E2004-00593-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge William Dale Young

Plaintiff's action against defendant for the negligent hiring of the perpetrator of a crime against plaintiff was dismissed by the Trial Judge on a directed verdict at the end of plaintiff's proof. We affirm.

State of Tennessee, Department of Children's Services v., JCG, In the matter of BJG
E2004-02103-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge William B. Hawkins

In this parental termination case, the father, JCG appeals the termination of his parental rights to BJG.