COURT OF APPEALS OPINIONS

Annette Marie Thompson Bulick v. Richard Lee Thompson, Jr. - Concurring
W2004-00816-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge D'Army Bailey

I agree with the result reached by the majority and generally with the reasoning, but write
separately only on the issue of how the amount of time each parent spends with the child is
calculated, both by the majority and by the trial court. The trial court here looked only at the number
of overnight stays the child had with each parent, and indeed that is typically accurate and easily
ascertained. In some cases, however, it can be misleading, and I believe this is such a case. Here, the child would regularly spend the entire day, through the evening meal, with Father and would be returned to Mother in time for bed. In such a case, the trial court should look at the totality of the circumstances in comparing each parent’s time with their child. I concur in the result reached by the majority because, in this case, I do not believe that looking at the totality of the circumstances would affect the outcome. But where, as here, an involved, dedicated father will have his relationship with his daughter deeply affected by the mother’s relocation, the time each parent spends with the child should be measured as accurately as can reasonably be done.
In all other respects, I concur fully with the majority opinion.

Donald M. Taylor v. City of Chattanooga, Police Department
E2004-00701-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge W. Neil Thomas, III

Plaintiff brought a replevin action against defendant to recover his motor vehicle which had been seized by the defendant. The action was initiated in Sessions Court, but transferred by agreement of the parties to Circuit Court. The trial court entered Judgment on behalf of the plaintiff for $8,500.00, having found that the defendant had sold plaintiff's vehicle. We affirm.

State of Tennessee, Department of Children's Services v. ABB, In the Matter of: LJB, Jr., d/o/b 12/05/1997 and EJB, d/o/b 02/26/1999, Children Under 18 Years of Age
E2004-01306-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Suzanne Bailey

In this action to terminate the parental rights of the mother, ABB, to LJB, Jr., and EJB, the Juvenile Court ordered ABB's rights terminated, and the mother has appealed. We affirm.

A.B.C. v. A.H.
E2004-00916-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Carey E. Garrett

This child custody case presents the following issues: (1) whether the trial court erred in awarding the father custody of the parties' child and (2) whether the trial court erred in ordering the father to pay the mother's attorney fees. We hold that the trial court considered the relevant statutory factors and that the evidence does not preponderate against the trial court's award of custody to the father. We hold that the trial court did not abuse its discretion in ordering the father to pay the mother's attorney fees. Although not raised as an issue on appeal, we note that the father did not request child support from the mother and the trial court did not set child support. We hold that the father did not have the right to waive child support. Accordingly, we affirm the trial court's judgment regarding custody of the child, affirm the award of attorney fees, and remand this cause to the trial court for determination of the mother's child support obligation to the father.

Michael Lynn Martindale v. Margo Miller Martindale
W2003-00712-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Joe C. Morris

This is a post-divorce alimony case. The parties were divorced in 1995 and the mother was awarded rehabilitative alimony for seven years. In 2003, the trial court extended the rehabilitative alimony until the youngest of the parties’ four children graduated from high school. The extension of alimony was based on the demands of being the primary residential parent for the parties’ four young sons, two of whom were found to have learning disabilities. The father appealed the extension of rehabilitative alimony. We affirm.
 

Michael K. Holt v. C. V. Alexander, Jr., M.D., and Jackson Radiology Associates
W2003-02541-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Donald H. Allen

This is a medical battery case. The plaintiff went to the hospital suffering from a kidney stone, and
was admitted for observation. The next morning, the plaintiff was told that he was scheduled to
undergo a procedure to remove the stone. Soon, the defendant physician came to see the plaintiff
and told him that he would be performing an invasive procedure which required significant recovery time. According to the plaintiff, the plaintiff then asked the defendant physician whether his treating urologist had approved of the procedure. The defendant physician responded that he had spoken with the urologist and that the urologist had approved the procedure. The plaintiff then signed a consent form, and the procedure was performed. The plaintiff later learned that the defendant physician had not spoken with his urologist, and that the urologist did not approve the procedure. The plaintiff sued the defendant physician and his medical group for medical battery. The trial court granted summary judgment in favor of the defendants. The plaintiff now appeals. We reverse, finding that a genuine issue of material fact exists as to whether the plaintiff’s consent to surgery was vitiated by the defendant physician’s alleged misrepresentation of fact.
 

Cellco Partnership D/B/A Verizon Wireless, et al., v. Shelby County, Tennessee, et al.
W2003-02942-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Kay S. Robilio

In this case we are asked to construe several instruments related to a parcel of real property. In 1976, Shelby County obtained title to a parcel of property conveyed out of a larger tract and proceeded to construct a water tower on the property. From 1976 to 1982, Shelby County used a gravel road traversing the adjacent lot retained by the original grantor to gain access to the water tower. In 1982, the original grantor proceeded to executea document purporting to grant Shelby County an easement over the gravel road. The original grantor subsequently conveyed the adjacent parcel to a third party, Highway 64 Partners. In 1995, Shelby County entered into a lease agreement with Verizon, allowing Verizon to install a cellular communications antenna on the water tower and granted Verizon an easement over the gravel road. Highway 64 Partners protested Verizon’s use of the gravel road. Verizon filed a declaratory judgment action seeking a declaration of the parties’ rights County, and denied summary judgment to Highway 64 Partners. We affirm.
 

Lamar Tennessee, LLC, d/b/a Lamar Advertising of Nashville v. The City of Hendersonville
M2003-00415-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Tom E. Gray

In 1987, a billboard advertising company obtained a permit to construct a billboard, approximately seventy-five (75) square feet in size, along a stretch of roadway in Hendersonville, Tennessee. At the time of issuance, the applicable zoning ordinance stated the billboard could not exceed eighty (80) square feet in size. Later that same year, the city passed a new zoning regulation providing that billboards could no longer be erected in the area as a primary use. Instead, billboards could only be erected as an accessory use to another primary use on the premises. The new zoning ordinance did not change the maximum allowable size of a billboard, which remained at eighty (80) square feet. Subsequent to the enactment of the new ordinance, the billboard company filed for a permit, pursuant to section 13-7-208 of the Tennessee Code, seeking to demolish the existing billboard and construct a new billboard, at 220 square feet in size, in its place. When the city denied the permit, the billboard company filed an action in the chancery court seeking a declaratory judgment, writ of mandamus, and permanent injunction. The billboard company also filed a motion for summary judgment, which the chancery court granted. The city filed an appeal to this court. We reverse.

Ronda Gaw Brady, et al. v. James Donald Calcote, et al.
M2003-01690-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge John A. Turnbull

This appeal arises out of a shareholder derivative action brought by Appellant in behalf of Community Bank of the Cumberlands against the Appellees, the directors and chief financial officer of the Bank. The trial court granted the Appellee's motion to dismiss and further awarded Appellees their attorney's fees and the Bank its expenses for a Special Litigation Committee. Appellant seeks review by this Court, and, for the following reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Tennessee Department of Children's Services v. C.D.W.
E2004-00623-COA-R3-PT
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Mindy Norton Seals

This appeal involves the Juvenile Court's termination of the parental rights of C.D.W. ("Mother") to her three oldest children. After a trial, the Juvenile Court held there was clear and convincing evidence that Mother had failed to substantially comply with the terms of her permanency plans, and that the conditions present at the time the children were removed had not been remedied and it was unlikely these conditions would be remedied in the near future. The Juvenile Court also held there was clear and convincing evidence that termination of Mother's parental rights was in the children's best interest. We affirm the judgment of the Juvenile Court.

In Re: Z.M.B.
E2004-00380-COA-R3-JV
Authoring Judge: Judge William H. Inman, Sr.
Trial Court Judge: Judge Carey E. Garrett

This case presents the recurring issue of subject matter jurisdiction of the juvenile courts. The child, nine years old, was born out of wedlock. Paternity was adjudicated in the juvenile court, together with the issues of support and visitation. Years later, father filed a petition in the case alleging a change of circumstances and seeking custody of the child. The juvenile court found a change of circumstances and awarded custody of the child to her father. Mother appeals, insisting that a juvenile court is not vested with jurisdiction to change custody of a child because of a change in the circumstances. The judgment is affirmed.

Mid-Century Insurance Company v. Virginia Williams, et al.
W2004-00484-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Jon K. Blackwood

Appellant, an insurance company, appeals from trial court’s judgment finding that the
business pursuit and home care service exclusions to personal liability coverage in a homeowners insurance policy did not exclude coverage for accidental death of child who drowned in a bathtub while in the care of Appellee. Trial court found that Appellee’s arrangement to care for decedent was not a business pursuit or home care service within the meaning of the insurance contract, but rather was an informal type of babysitting motivated by love and/or favor for deceased child’s parents. Appellant contends that motivation by profit was irrelevant to whether Appellee was engaged in a business pursuit or home care service, that the evidence preponderates against the trial court’s fact findings, and that trial court erred in finding for Appellees. We reverse the judgment of the trial court, finding that the business pursuit and home care service exclusions do bar coverage under the homeowners policy.
 

Mid-Century Insurance Company v. Virginia Williams, et al. - Partial Dissent/Concurrence
W2004-00484-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Jon K. Blackwood

I write separately to dissent in part from the majority opinion. I agree with the majority’s
analysis of the policy at issue, but disagree with the majority’s conclusion that the evidence
preponderates against the trial court’s finding that the childcare arrangement was not conducted for profit. I certainly agree that the discrepancies in Ms. Williams’ testimony in her two depositions and her trial testimony “suggest . . . deliberate obfuscation” and, if I were the trial judge, I would feel constrained to hold as the majority does, that Ms. Williams’ later testimony was an effort to avoid the consequences of the exclusions from coverage. I am not, however, the trial judge. Here, the trial court’s credibility determination is not based solely on the deposition testimony, ascertained from the transcript. It is also based on Ms. Williams’ testimony at trial, derived from the trial judge’s observation of her demeanor and manner in the courtroom. Given our standard of review for such a credibility determination, I feel compelled, albeit reluctantly, to affirm the trial court’s finding of fact that the childcare arrangement was not conducted for profit.
On this basis, I dissent in part from the majority opinion. In all other respects, I fully concur.

State of Tennessee, Department Children's Services v. Lilli Lowery, In the Matter of M.D.B.
E2004-00517-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Mindy Norton Seals

The Trial Court determined there were statutory grounds to terminate the mother's parental rights and that termination was in the child's best interest, all by clear and convincing evidence. On appeal, we affirm.

Shelia L. Godwin v. Fred Sanders
W2003-02239-COA-R3-JV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert W. Newell

This case arises out of a petition to reopen paternity proceedings filed by Appellant. When Appellee refused to submit to a DNA test, Appellant filed a petition to find Appellee in contempt of court. The trial court refused to find Appellee in contempt and determined that Appellee need not submit to a DNA test. Appellant filed her notice of appeal and seeks review by this Court. For the following reasons, we affirm the trial court.
 

Bobby R. Posey, and wife, Sabrina Posey, and Dale Teague, et al., v. Dryvit Systems, Inc., et al.
E2004-02013-COA-R9-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge O' Duane Slone

In this appeal we remand to the Trial Court with instructions and lift stay issued by this Court.

Will A. Cantrell v. Allen Cantrell
M2002-02883-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Jim T. Hamilton

After the death of his estranged wife, the surviving husband discovered that she had secretly placed their marital residence into a revocable trust the assets of which, on her death, passed to the benefit of their son. The husband brought suit to have the transfer to the trust declared a fraudulent conveyance and to impose a resulting trust on the property for his benefit. The trial court granted him the relief he requested. While we agree with the trial court that the wife could not convey away the husband's interest in the farm, our reasoning and ultimate result differ from that of the trial court. We affirm the resulting trust, but reverse the voiding of the conveyance of the wife's half interest.

Donna Woods Hartman v. Patrick Erwin Hartman
M2003-00805-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Jim T. Hamilton

This appeal arises out of the parties’ divorce following their second marriage to each other.  The trial court inter alia awarded the wife $75,000 for her contributions, in the form of personal services to the husband’s medical practice, and awarded her one-half of the equity in the home where the parties resided during the second marriage. Husband appeals the first award, arguing that the medical practice was his separate property and that the wife failed to prove any increase in the value of the practice during the marriage. He appeals the second award, arguing that the trial court erred by not considering two marital debts when it awarded half of the equity in the home to the wife. We vacate the $75,000 award pertaining to the value of the husband’s medical practice because there is no evidence of the value of the practice at the beginning or end of the second marriage. We remand for further proceedings the award of the equity in the home because the trial court failed to consider two marital debts, the husband’s loan to wife of $18,500 – which she used to buy her current residence – and the couple’s debt of $10,599.12, for which they were jointly liable. On remand, the trial court should consider inter alia: 1) the purpose of each debt, 2) which party incurred the debt, 3) which party benefitted from incurring the debt, and 4) which party is best able to repay the debt.

Donna Woods Hartman v. Patrick Erwin Hartman - Concurring
M2003-00805-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Jim T. Hamilton

I concur in the results of the opinion written by Judge Clement under the facts of this case and also concur in the holding that the method of presenting evidence to the trial court characterized as a “mediation” or an “Alternative Dispute Resolution Procedure” qualifies as neither under Tenn. S. Ct. R. 31.

Marilyn MacLeod Reed v. John William Reed
M2003-02428-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Royce Taylor

This is a divorce case. Prior to their marriage, the parties entered into an antenuptial agreement, designed to keep separate all property brought into the marriage, as well as all property acquired during the marriage unless acquired jointly. The trial court granted Wife a divorce on the ground of inappropriate marital conduct. The trial court classified and divided the parties' separate and marital property in accordance with the antenuptial agreement. As a result, Husband was allowed to retain much of his separate property and retirement. The trial court denied Wife's requests for alimony and attorney's fees. Wife has appealed. For the reasons stated below, we affirm.

Gloria J. Bevill v. Ellis M. Bevill, Sr.
E2004-00190-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge L. Marie Williams

This is a post-divorce case. The parties were divorced in 1999. The judgment of divorce awarded Gloria J. Bevill ("Wife") alimony in futuro of $1,750, subject to provisions pertaining to the retirement of her then-former spouse, Ellis M. Bevill, Sr. ("Husband"). In specific terms, the judgment provided that upon Husband's retirement, he was entitled to reduce the amount of his alimony payment to $1,300, subject, however, to a stipulation in the judgment providing that Husband's post-retirement earnings could affect the amount of his obligation. Husband retired and, pursuant to the divorce judgment, unilaterally reduced the amount of his monthly alimony payments. In response, Wife filed a petition to interpret the divorce judgment and/or modify the spousal support award. The trial court interpreted the divorce judgment as permitting an upward modification of Husband's alimony obligation. Upon review of the evidence, the trial court subsequently increased Wife's alimony award to $1,900 per month, in addition to awarding her attorney's fees. It is from this order that Husband appeals. We affirm.

State of Tennessee Department of Children's Services v. T.N.S.S.
E2003-02935-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Suzanne Bailey

The trial court terminated the parental rights of T.N.S.S. ("Mother") with respect to her three children, D.D.M. (DOB: February 10, 1989), D.S.Jr. (DOB: August 7, 1990), and D.J.S. (DOB: July 27, 1991). Mother appeals, arguing, inter alia, that the evidence preponderates against the trial court's dual findings, by clear and convincing evidence, that grounds for termination exist and that termination is in the best interest of the children. We affirm.

Carolyn Marie Leasure White, et al. v. Timothy Wade Moody
M2004-01295-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Carol A. Catalano

This is the third appeal of a case involving a divorced father’s parental rights to his eleven-year-old daughter. The father maintained only sporadic contact with his daughter following his divorce from the child’s mother. After the child’s mother remarried, she and her new husband filed a petition in the Chancery Court for Robertson County seeking to terminate the father’s parental rights and to permit the mother’s new husband to adopt the child. We reversed the first order terminating the father’s parental rights because the trial court had failed to conduct the statutorily required best interests analysis. On remand, the trial court determined that terminating the father’s parental rights was in the child’s best interests without conducting an evidentiary hearing. We reversed the second termination order and remanded the case to enable the parties to present evidence. Following an evidentiary hearing, the trial court entered a third order terminating the father’s parental rights and granting the stepfather’s petition to adopt the child. The father has appealed the trial court’s conclusion that terminating his parental rights is in his daughter’s best interests. We have determined that the record contains clear and convincing evidence to support the trial court’s decision.

Pamela D. Vickroy v. Pathways, Inc., Dyersburg, TN, Kimberly Bord, J. Forstlam, M.D. Methodist Hospital, Coleman Foss, Administrator, and Western Mental Health Institute
W2003-02620-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge R. Lee Moore Jr.

This case involves involuntary commitment to a mental institution. Paramedics were called to the plaintiff’s home by her roommate, and she was brought involuntarily to the hospital for evaluation. She was admitted to the emergency room and examined by the physician on duty. She was interviewed by a mental health clinician. The physician then went off duty and the defendant physician took charge. The defendant physician examined the patient’s chart, reviewed the history taken by the prior physician and the mental health clinician, and then signed a form committing the plaintiff to a mental institution. The form stated that the defendant physician had examined the plaintiff, but the plaintiff was examined only by the prior physician, who was no longer on duty. The plaintiff then sued the defendant physician for involuntarily committing her to a mental institution without personally examining her. The trial court granted summary judgment to the defendant physician, classifying the action as medical malpractice and finding that the plaintiff failed to offer competent expert proof as required under T.C.A. § 29-26-115. We affirm the grant of summary judgment as to claims of medical malpractice, and reverse the grant of summary judgment for the claims of negligence and false imprisonment, finding that T.C.A. § 36-6-402 requires that a physician or designated professional who commits a patient to a mental institution must first personally examine the patient, rather than relying exclusively on medical records or someone else’s examination of the patient. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed in Part and Reversed in Part
 

Mae Ellen Williams v. Baptist Memorial Hospital, et al. - Dissenting
W2003-02872-COA-R3-CV
Authoring Judge: Judge Alan E. Highers

This is a wrongful death action growing out of allegations of medical malpractice lodged against Dr. Becky C. Wright and Metropolitan Anesthesiologist Alliance. On December 7, 2000, surgery was performed on the decedent to remove her gallbladder. Ultimately, the decedent suffered irreversible encephalopathy and lingered in a comatose state for nearly a year and a half before she died on April 24, 2002.