COURT OF APPEALS OPINIONS

Jo Anne Hofmeister v. John Hofmeister
M2000-00363-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Marietta M. Shipley
A series of post-divorce petitions resulted in a hearing on July 22, 1999 in which no witnesses were called nor any sworn testimony offered. Based on the petitions, the answers, and the statements of counsel, the court modified the final decree of divorce with respect to the husband's obligations to pay the wife's medical insurance premiums, medical expenses, and life insurance premiums. The court also denied the wife's petition for post-judgment interest on a payment to the wife that had been ordered in the final decree. The wife appeals on the grounds that (1) there were no pleadings or proof justifying the amendments and (2) the court erred in not granting her petitions. We affirm the trial court.

American Child Care, Inc. v. Dept. of Human Services, et al.
M2000-01790-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Ellen Hobbs Lyle
This appeal arises from the trial court's denial of appellant American Child Care, Inc.'s, request for attorney's fees resulting from an administrative action in which appellant's license was suspended and later reinstated. The trial court later granted appellee summary judgment on all issues, including attorney's fees. We reverse the trial court's decision denying the appellant's application and remand to the trial court to set a reasonable fee for the appellant.

Vandal Doss v. Tennessee Farmers Mutual Ins. Co.
M2000-01971-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: E. Gray
This is an appeal from the Judgment of the Chancellor for Sumner County, Tennessee, dismissing Vondal Doss's Complaint against Tennessee Farmers Mutual Insurance Company, alleging breach of contract for failure to make payment for medical expenses pursuant to the medical payment coverage contained in two insurance policies and the Defendant's Counter-Complaint for subrogation. Doss had suffered a personal injury as a result of an auto accident which occurred on April 8, 1993 involving a third-party tort-feasor. Plaintiff/Appellant filed a Motion to Appeal on August 2, 2000. The Judgment of the Chancellor is affirmed on all counts. Doss's claim for additional post-settlement medical payments is denied as a result of the execution of the Release and Order of Compromise and Settlement which extinguished Tennessee Farmers' subrogation rights. Tennessee Farmers' claim for reimbursement is denied. Costs of this Appeal are assessed to the Appellant.

Cheryl Ann Cupples, v. Luther Wayne Cupples
02A01-9408-CH-00193
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Joe C. Morris

This divorce action involves dissolution of the 25 year marriage between Appellant, Cheryl Ann Cupples ("Wife"), and Appellee, Luther Wayne Cupples ("Husband"). Wife filed for divorce in September 1992, citing irreconcilable differences and inappropriate marital conduct. Husband counterclaimed for divorce alleging inappropriate marital conduct. Both parties sought custody of their minor son, Jonathan, age 10 at the time of trial.1 On appeal, Wife cites as error the trial court's award of an absolute divorce and custody of the child to Husband, its failure to award her alimony and its division of the marital estate. For reasons hereinafter expressed, we affirm.

Thomas Stubblefield vs. Monique Stubblefield
E2001-01433-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: William R. Brewer
Husband appeals the Trial Court's allocation of the parties' marital estate in this divorce action. We affirm.

State ex rel. Margaret Holtsinger vs. Jack Elrod
E2001-00257-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: William E. Lantrip
These parties were divorced in May 1996. Custody of their children was awarded to Wife. The oldest child, Catherine, DOB July 14, 1981, was mentally and physically afflicted. Support was awarded as the Guidelines direct. Father filed a petition to modify the judgment by eliminating the support requirement for Catherine, who reached her majority. The Chancellor held that the duty of support of the afflicted child was a continuing one. We affirm.

John Warfield, et ux vs. Carlos Lowe, et al
E2001-01042-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: James B. Scott, Jr.
Plaintiff sought to establish insurance coverage for his injuries under his employer's policy. The Trial Judge declared no coverage. On appeal, we affirm.

Cynthia Long vs. City of Maryville
E2001-00908-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Dale Young
Upon remand from this Court, the Trial Court entered Judgment for defendant in this slip and fall case. On appeal, we reverse.

Boyd's Creek Enterprisesl vs. Sevier County
E2001-01975-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Telford E. Forgerty, Jr.
These beer permit cases were consolidated for trial, with a common issue: whether the proposed sale location was located within 2000 feet of a "public gathering place," and if so, whether the restriction was waived, owing to a discriminatory practice.

2001-00729-COA-R3-CV
2001-00729-COA-R3-CV
Trial Court Judge: W. Dale Young

John Jaco v. Department of Health Bureau of Medicaid
01-A-01-9507-CH-00285
Authoring Judge: Judge Hewitt P. Tomlin
Trial Court Judge: Chancellor Robert S. Brandt

This appeal involved judicial review of an administrative decision regarding the denial of petitioner’s application for benefits for care at a nursing home facility. The chancellor granted the motion to dismiss of the Department of Health, Bureau of Medicaid (?respondents” or by name) on the ground that the trial court did not have subject matter jurisdiction due to the failure of petitioner¹ to cause a summons to be properly issued and served on the Department within the sixty (60) day time limit specified in T.C.A. § 4-5-322(b)(1). The sole issue presented for review by this court is whether the chancellor erred in dismissing petitioner’s suit for judicial review for lack of subject matter jurisdiction. We find no error and affirm.

People's Bank of Elk Valley, v. American Bankers Financial Services, Inc., et al.
01A01-9506-CV-00260
Authoring Judge: Judge Samuel L. Lewis
Trial Court Judge: Judge Lee Russell

Plaintiff, People's Bank of Elk Valley ("People's Bank"), appeals from the trial court's order granting summary judgment to defendant, American Banker's Financial Services, Inc. ("American") and dismissing People's Bank's complaint.

William Patrick Varley, Jr., v. Pamela Dawn Varley
01A01-9511-CV-00498
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Muriel Robinson

This is a divorce action wherein the appellant, Pamela Dawn Varley (Wife), appeals from the final decree which awarded a divorce and sole custody of the parties’ three minor children to Appellee, William Patrick Varley, Jr. (Husband). The children are Bridget Marie, born December 14, 1988, William Patrick Varley, III, born January 23, 1991 and Sadie Ellen Varley, whose date of birth is June 30, 1992. The decree also fails to award Wife alimony.

Willa Jean Gaskill v. Steven Wayne Gaskill
01A01-9512-CH-00559
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge John H. Gasaway, III

This appeal involves the custody of a four-year-old girl. After slightly more than two years of marriage, the mother filed a divorce petition in the Chancery Court for Montgomery County requesting custody of the parties’ only child. Following a bench trial, the trial court declared the parties divorced and awarded custody to the mother. The husband asserts on this appeal that he is comparatively more fit than the mother to have custody. We agree and, therefore, reverse the trial court’s award of custody to the mother.

Michael Daniel Fry v. Yuriko Shinoda Fry
M2000-02969-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Judge Muriel Robinson

Pursuant to the wife's motion under Rule 60, Tenn. R. Civ. P., the trial court amended the division of the husband's Navy pension contained in an agreed order of divorce. We reverse the trial court's judgment.

Alexander C. Wells v. State of Tennessee
M2001-00144-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell

Appellant, Dr. Alexander C. Wells, was a professor at Tennessee State University ("TSU"). He was relieved of his teaching duties in 1992 and was asked to remove his property from the office and laboratory space he occupied at TSU. He moved some of his belongings in 1995. His remaining belongings were boxed and moved to the campus warehouse in 1996 because the space had been reassigned. When he retrieved his belongings in 1997, he found several items missing. Appellant then brought a claim in the Tennessee Claims Commission asking the State of Tennessee to return his property or, in the alternative, give him monetary compensation for the lost items. The Commission held that TSU had not been negligent in the care, custody and control of appellant's property. Therefore, the State was not liable for the missing property. We affirm the decision of the Commission.

Thomas A. Smythe v. Phil Jones, et al .
M2000-02062-COA-R3-CV
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Judge Russell Heldman

In this suit wherein the Plaintiff, Thomas a. Smythe, seeks damages against the Defendant, Donald Cowan, for willfully interfering with contractual relations between Mr. Smythe and Phil Jones, the Trial Court granted summary judgment because in his opinion the Statute of Limitations barred the claim asserted. We affirm.

Cultra Landscaping Supply Company, v. Director of HIghways, Department of Transportation and W.L. Sharpe Contracting Company, Inc. and Charles Hill, Individually and D/B/A C.H. Hill Landscape and Excavating
02A01-9512-CV-00275
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Robert L. Childers

This is an action by the appellant, Cultra Landscaping Supply Company (Cultra), seeking to recover the balance allegedly due on an open account. Cultra’s complaint, as amended, was filed against the Director of Highways, Department of Transportation, W. L. Sharpe Contracting Company, Inc. (Sharpe) and Charles Hill, individually and d/b/a C. H. Hill Landscape and 2The Director of Highways was named as a defendant pursuant to T.C.A. § 54-5-124 (civil actions against contractors by claimants). Cultra’s complaint states that it “seeks no remedies” against Sharpe, but acts to put the latter “on notice” of said claim having been filed with the Department of Transportation. Prior to trial, a summary judgment was entered in favor of Sharpe. The order granting summary judgment provided that the State of Tennessee and the Department of Transportation were to retain certain funds to satisfy Cultra’s claim in the event it proved meritorious at trial, in accordance with T.C.A. § 54-5-123. After trial, an agreed order was entered with this Court dismissing the Department of Transportation, Director of Highways as a party. 2 Excavating (Hill). For purposes of this appeal, however, the only other party before us is Hill, the appellee.2 A bench trial resulted in a judgment for Hill. Cultra appeals on the sole basis that the evidence presented at trial preponderates against the trial court’s findings. For reasons hereinafter stated, we affirm.

Mary Kindred, On Her Own Behalf, And as Next of Kin of Marcus Briggs, v. The Board of Education of Memphis City Schools, et al.
02A01-9512-CV-00280
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Robert A. Lanier

In this wrongful death action, Plaintiff-Appellant Mary Kindred (Plaintiff), on her own behalf and as next of kin of Marcus Briggs, appeals the trial court’s judgment entered in favor of Defendants-Appellees Board of Education of Memphis City Schools, Willie Anderson, and Raybon Hawkins (Defendants).

Loretta Trull, v. Margaret Culpepper, Commissioner of Tennessee Department of Employment Security, and Kerr Plastic Products, Manpower Temp Svcs., et al.
02A01-9603-CH-00041
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge George R. Ellis

This is an unemployment compensation case. Petitioner, Loretta Trull, appeals from the order of the chancery court dismissing her petition for certiorari and affirming the decision of the Board of Review that disallowed her claim for unemployment compensation benefits.

Flora Mae Melton v. Glen Houston Melton
2001-00128-COA-R3-CV
Trial Court Judge: J. Russ Heldman

Austin Powder Co., et al., v. Walter Thompson
03A01-9607-CV-00229
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Judge W. Dale Young

The Defendant appeals a judgment entered by the Blount County Circuit Court awarding the Plaintiffs discretionary costs including attorney fees. This appeal arises from an earlier action (second lawsuit) seeking specific performance of a settlement agreement resolving the original lawsuit filed by the Defendant.

Glenn T. McColpin, v. North Atlantic Casualty & Surety Insurance Company, Inc.
03A01-9602-CH-00067
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor R. Vann Owens

This is a suit for damages against an insurance company for the alleged breach of a lawyer’s professional liability insurance policy. Plaintiff, Glenn McColpin, appeals from the judgment of the chancery court for the defendant, North Atlantic Casualty & Surety Insurance 2 Company, Inc. (hereinafter, “North Atlantic”).

Bobby R. Reed, v. National Foundation Life Insurance Company and Mark Bradshaw
03A01-9603-CV-00081
Authoring Judge: Senior Judge William H. Inman

This is a Rule 9 appeal from a judgment denying the defendants’ motions for summary judgment. The issue is whether an insurance agent has the apparent authority to waive the conditions for issuance of a policy and the limitations on his authority as contained in the application for the policy. We hold that the agent has no such authority and therefore grant the motions for summary judgment.

Mike G. Pauley, v. Madison County, Madison County Penal Farm, David Woolfork, Madison County Sheriff, Penal Farm Superintendent, Captain Jackson, et al.
02A01-9607-CH-00161
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Joe C. Morris

Plaintiff, Mike G. Pauley, an inmate at the Madison County Penal Farm (Penal Farm), appeals from an order of the trial court dismissing his pro se complaint against the defendants, 1 Plaintiff filed suit against Madison County, Madison County Penal Farm, David Woolfork, the Madison County Sheriff and Penal Farm Superintendent, Captain Jackson, the Penal Farm’s Head Controller and Acting Warden, Sergeant Jered, the first shift sergeant, Sergeant Evans, the third shift sergeant, Officer Steven Horner, and Officer Cleo King in their official and individual capacities. 2 4which include Madison County, the Penal Farm, and several of the Penal Farm’s personnel.1