COURT OF APPEALS OPINIONS

William Martin vs. Douglas Sizemore, et al
M1997-00203-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Ellen Hobbs Lyle
This appeal involves a disciplinary proceeding against a licensed architect. Following a lengthy hearing, the Tennessee Board of Examiners for Architects and Engineers concluded that the architect had engaged in misconduct in the practice of architecture in connection with four projects and suspended his certificate of registration for three years. The architect appealed the Board's decision to the Chancery Court for Davidson County. The trial court reversed the Board's decision after determining that the decision was not supported by substantial and material evidence. On this appeal, the Board asserts that its suspension of the architect's certificate of registration has adequate evidentiary support. The architect renews his argument that the Board's proceedings violated his procedural due process rights because the attorney who prosecuted the State's case against him also served as the Board's lawyer in other matters. Except for a portion of the charges involving one project, we concur with the trial court's conclusion that the Board's decision lacked evidentiary support because the State failed to present expert testimony regarding the applicable standard of care. We have also determined that the architect has not carried his burden of demonstrating that the Board was actually biased against him because the lawyer who prosecuted the State's case also provided other, unrelated legal services to the Board. Accordingly, we affirm the trial court's judgment as modified herein and remand the case to the Board for further proceedings.

Brenda King vs. Danny King, D.V.M.
M1999-02556-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Marietta M. Shipley
This is a divorce case. The parties divorced after 31 years of marriage. The trial court granted the wife a divorce on the grounds of inappropriate marital conduct. The wife was awarded alimony in futuro in the amount of $6000 per month for two years. After two years, the wife would receive $4500 per month and, upon remarriage, the amount of alimony in futuro would decrease to $2000 per month. The trial court also ordered the husband to pay $10,000 of the wife's attorney's fees. Both parties appeal; the wife appeals the division of marital property and the husband appeals the award of alimony. We affirm in part, modify in part, and reverse in part, affirming the award of alimony in futuro, modifying the amount of alimony and eliminating the award of alimony in futuro after the wife's remarriage.

Kimberly Caudill vs. William Howard Foley
M2000-01512-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Russell Heldman
This appeal arises from an action seeking attorney's fees from a previous child custody action. After divorce, Mother was awarded custody of Child. Upon remarrying, Mother sought to move to Florida with Child. Father protested and sought primary custody of Child. Judge, finding the child relocation statutes unconstitutional, awarded Father custody. Mother hired Lawyer for an appeal of this ruling. While this appeal was pending, Father brought suit for child support. Lawyer sought recusal of Judge due to previous contact between them when Judge was an attorney. Judge refused to recuse himself and disqualified Lawyer. This action was appealed. While this appeal was pending, the child custody appeal was decided by this court and Child was returned to Mother's custody. Mother brought action in the trial court seeking fees from this first trial and appeal which Judge denied. Mother appealed this denial, with the result that the failure of Judge to recuse, the disqualification of Lawyer and the attorney's fees appeals were consolidated before this court. We affirm in part and reverse in part.

Ronald Davis vs. The Tennessean, et al
M1999-01602-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Barbara N. Haynes
The plaintiff filed a libel action against a newspaper, The Tennessean, its publisher and its editor, alleging his reputation had been harmed by a sentence in an article which stated that he had shot a man, when, in fact, his co-defendant had killed the victim. The trial court granted the defendants' motion to dismiss, finding the plaintiff to be "libel proof" in this matter because he had been convicted of aiding and abetting in the murder and incarcerated for the remainder of his life for the crime, "render[ing] any reputation he may have had virtually valueless." We affirm.

Mohamed Ali, M.D., vs. Fredia Moore and Danny Story
E2000-02534-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas J. Seeley, Jr.
The Trial Court held the statute of limitations had run on plaintiff's Complaint. On appeal, we dismiss the appeal as not being timely filed.

E2001-00228-COA-R3-CV
E2001-00228-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Telford E. Forgerty, Jr.

E2001-01163-COA-R3-JV
E2001-01163-COA-R3-JV
Authoring Judge: Presiding Judge Herschel P. Franks

Deborah Warren vs. James Ferguson
W2000-02027-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: James H. Bradberry
This appeal involves a complaint to establish parentage and set child support. The court below ordered genetic testing, which proved that James R. Ferguson is the natural father of the children at issue. The court also entered a judgment of $8,623.00 for retroactive child support, $280.00 for the cost of genetic testing, and the court reserved the issue of current support until Mr. Ferguson is released from prison. We vacate the trial court's final order based on our conclusion that the trial court erred in failing to rule on Mr. Ferguson's Motion for the Appointment of Counsel, or alternatively, his request that the matter be held in abeyance until he is released from incarceration.

Robert LeeGrand v. Trinity Universal Insurance
W2000-02664-SC-WCM-CV
Trial Court Judge: Joe C. Morris
The appellant presents the following issues for review: (1) Whether the trial court erred in ruling that the plaintiff did not sustain an injury that arose out of his employment; (2) whether the trial court erred in ruling that the plaintiff received no permanent disability from his injuries; (3) whether the trial court erred in failing to make a specific finding as to the benefit rate, and (4) whether the trial court erred in failing to award plaintiff discretionary costs. Although we hold that the plaintiff's injury arose out of the plaintiff's employment, we affirm the trial court's conclusion that the plaintiff received no permanent disability from his injury.

Parks Properties, et al vs. Maury County, et al
M1997-00235-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: William B. Cain
Parks Properties and Columbia Warehouses, Inc. have filed a petition pursuant to Tenn. R. App. P. 39 requesting a rehearing of this court's August, 17, 2001 opinion. We requested and have now received an answer to this petition on behalf of Maury County and Judy Langsdon. Parks Properties and Columbia Warehouses insist that our conclusion that they lacked a protectable property interest in constructing the two warehouses without installing the automatic required sprinkler systems is based on our "misunderstanding that the warehouses would have contained tobacco or other combustible products." They assert that "there was never any evidence before the trial court that the warehouses would be used to store tobacco or other combustible products." This argument misses the point. The lynchpin of our opinion is that the record contains no evidence (1) that the Parks family ever told any county official that tobacco and other combustible materials would not be stored in these warehouses and (2) that the Parks family never sought a waiver of the automatic sprinkler requirements under Section 402.4.1 exception

Joe Jones v. Mary McMurray, et al
M2000-01959-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Russell Heldman
In this malicious prosecution action, Joe T. Jones ("Plaintiff") appeals the Trial Court's grant of summary judgment to the defendants after concluding there was no genuine issue of material fact supporting Plaintiff's allegation of fraud surrounding entry of a judgment against Plaintiff in the underlying lawsuit. We affirm the judgment of the Trial Court.

Joe Grant vs. Service Transport
W2000-02688-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Rita L. Stotts
This appeal arises from a negligence claim filed by the appellee against the appellant in the Circuit Court of Shelby County. The appellant filed a motion for summary judgment or, in the alternative, to dismiss for failure to state a claim. The trial court denied the appellant's motion. The appellant filed a motion for permission to file an interlocutory appeal. The appellee filed an order of voluntary dismissal before the appellant's motion for permission to file an interlocutory appeal could be heard. The appellant appeals, arguing that the order of voluntary dismissal deprived it of the right to seek appellate review of the trial court's denial of its motion for summary judgment or, in the alternative, to dismiss for failure to state a claim. For the reasons stated herein, we affirm the trial court's decision.

Randy Dale Story v. Chastity Dawn (Batts) Shelton
01-95-004-M
Trial Court Judge: A. Andrew Jackson

Henry Witt, et ux vs. Tennessee Farmers Mutual Insurance
E2001-00401-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Jerri S. Bryant
The trial court refused to grant plaintiffs relief from a judgment pursuant to Tenn. R. Civ. P. 59 or 60. Defendant has appealed. We affirm the trial court.

Clear Fork Mining Company vs. Willie Marlow, et al & Willie Marlow, et al vs. Carl Kinkg, et al
E2000-01196-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Billy Joe White
In the case presently on appeal Willie Marlow, et al., seek a court determination that he is the owner of certain real estate located in Campbell County. The trial court, on motion of Jim King, found the parties had reached an agreement as to the controversy in accordance with his insistence. The trial court thereupon entered a judgment in favor of Mr. King. Mr. Marlow appeals contending enforcement of the agreement violates the Statute of Frauds and such a resolution was barred by the six-year Statute of Limitations. We affirm

Kevin Sanders, et al vs. Lincoln County, et al
M2000-01386-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Lee Russell
This case questions the defendants' decision to remove Gill Road and Endsley Road from the county road list, thereby exempting landowners on these roads from the stock gap removal policy of the county affecting public roads. Plaintiff claims such action violates constitutional equal protection rights. The jury returned a verdict in favor of the defendants. The plaintiffs assert that the jury's verdict is contrary to the weight of the evidence and that the trial court erred by submitting an incomplete and misleading verdict form to the jury. The trial court approved the jury verdict for the defendant and we affirm.

Raymond G. Prince, P.C. vs. Manfred Polk
M2000-01859-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Barbara N. Haynes
This matter originated from a default judgment granted in general sessions court against Appellant/Defendant, Manfred Polk, for payment of attorney's fees. Appellant filed a Rule 60.02 Motion to Vacate the default judgment, which was denied; an appeal to the circuit court, which was dismissed for failure to set; followed by a Motion to Reinstate and Motion to Set, which were denied. Defendant now appeals the denial of the Motion to Reinstate and Motion to Set claiming a violation of due process and abuse of discretion on the part of the circuit court. We affirm the circuit court's dismissal of these motions.

Rhonda Lyn Vaughan vs. Joseph Clyde Vaughan
M2000-00623-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Jeffrey S. Bivins
This is a divorce case in which alimony is in dispute. The trial court awarded alimony in futuro to the wife in the amount of $750 per month until her death or remarriage, and ordered the husband to purchase a $100,000 life insurance policy for the benefit of the wife. The trial court also ordered the husband to pay $1,500 of the wife's attorney's fees. The husband appeals, arguing that alimony in futuro was inappropriate because the wife is self-sufficient with her income as a nanny. In the alternative, the husband argues that rehabilitative alimony is more appropriate. We affirm the judgment of the trial court in all respects.

Olalee Herron McClaran vs. Don M. McClaran
M2000-01666-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Don R. Ash
Plaintiff Olalee Herron McClaran sues her son, Defendant Don M. McClaran, seeking compensatory and punitive damages for his mishandling of funds coming into his hands as her attorney in fact in connection with the sale of certain real estate. The jury awarded both compensatory and punitive damages, resulting in this appeal wherein Mr. McClaran complains of the exclusion of evidence, the trial court's directing a verdict as to two claims in his counter-complaint, the seating of a six-person, rather than a 12-person jury, and the excessiveness of the punitive damage award. We affirm.

J. Howard Gregg vs. Jack Johnson
E2000-02685-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Jerri S. Bryant
J. Howard Gregg ("Plaintiff"), sued his former business partner, Jack Johnson ("Defendant"), essentially alleging that Defendant breached an agreement to pay a debt originally incurred by their former partnership, Jack Johnson Motors. Plaintiff also alleged that Defendant owed him money as part of their partnership ("Partnership") dissolution agreement. Neither the Partnership agreement nor the dissolution agreement was written. Defendant raises as defenses the statute of limitations and the statute of frauds. The trial court held in favor of Plaintiff. Defendant appeals. We affirm.

Johnny McGowan vs. Jimmy Farr II, et al
E2000-02519-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Frank V. Williams, III
Johnny McGowan ("Plaintiff"), an inmate at the Brushy Mountain Correctional Complex filed this lawsuit against the various defendants alleging violations of federal and state law after medication was confiscated from his cell. Plaintiff improperly filed a grievance which was returned to him with instructions on how to properly process same. Instead of refiling the grievance in accordance with proper procedure, Plaintiff filed this lawsuit. The Trial Court granted summary judgment to the defendants. We affirm, concluding that Plaintiff failed to exhaust his administrative remedies which bars all of his claims.

In Re: Estate of Gloria Eleanor Franklin
E2000-02687-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

This is apparently a case of first impression. The appellant, W. Jess Waltman, filed a petition in the trial court seeking to probate a document purporting to be the last will and testament of Gloria Eleanor Franklin ("the decedent"). The will, dated "July 7 93," directs that the appellant and his wife, Terry Waltman, are to receive the decedent's estate "in case I die on my way to & from Jersey." The trial court held that the will was not eligible for probate because it was a conditional will and the specified condition or contingency, i.e., Ms. Franklin's demise "on the way to & from Jersey," had not occurred. We vacate the trial court's judgment and remand for further proceedings consistent with this opinion.

Jacqueline Telford v. Michael Telford
M2000-02938-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Leonard W. Martin
This appeal from the Chancery Court of Cheatham County questions whether the Trial Court erred in awarding Ms. Telford alimony in the amount of $1,000.00 per month, and in granting Ms. Telford a judgment of $21,040.00 as the amount owing on the property division. Additionally, this appeal questions whether the Trial Court erred in limiting alimony to eight years and whether the Trial Court erred in failing to grant retroactive child support. We vacate the decision of the Trial Court in part and affirm as modified in part and remand for further proceedings consistent with this opinion. We divide costs of the appeal equally between the Appellant, Michael Allen Telford, and the Appellee, Jacqueline M. Telford.

James A. Hodge v. Jones Holding Company, Inc.
M1998-00955-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge F. Lee Russell

This appeal involves a motorcycle rider who was seriously injured when his motorcycle crossed metal plates covering a portion of the highway surface that was under construction. After voluntarily dismissing his first suit, the rider filed a second suit in the Circuit Court for Lincoln County against the corporation he believed to be responsible for placing the metal plates across the highway. The rider insisted on proceeding against this corporation even after he was informed that he had sued the wrong party. The corporation moved for a directed verdict at the close of the motorcycle rider's case-in-chief, asserting that he had failed to prove that it was responsible for the road construction. The trial court granted the motion and dismissed the rider's complaint. The rider now challenges the directed verdict on two grounds. First, he asserts that he presented enough evidence of the contractor's responsibility for the construction to take the case to the jury. Second, he asserts that the corporation should not be permitted to argue that he sued the wrong party because it had not specifically identified or described this party in its answer as required by Tenn. R. Civ. P. 8.03. We have determined that the corporation's denial of involvement with the construction project at issue was was not asserting an affirmative defense governed by Tenn. R. Civ. P. 8.03 and that the trial court properly granted the directed verdict. Therefore, we affirm the judgment dismissing the motorcycle rider's complaint.

Billy Conatser, et al., v. L.D. (Joe) Ball
M1999-00583-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Vernon Neal

This case involves a dispute over the scope of the right of the defendant to use the plaintiffs' property as a means of ingress and egress to various sections of the defendant's property. The deed to defendant's 1,600 acre tract, which surrounds plaintiffs' 151 acre tract on 3 sides, included a 26 foot wide north-south easement over plaintiffs' property. Plaintiffs alleged that defendant refused to confine his activities within the easement, thereby trespassing and committing waste upon their land. The trial court determined that defendant was entitled to use the 26 foot wide easement running in a north and south direction on the Conatsers' property and a second 20 foot wide route of ingress and egress branching off of the 26 foot easement in a northwesterly direction. The court rejected defendant's claim that he was entitled to a third easement along another east and west direction route and awarded plaintiffs $2,500 in damages for trespass. We affirm the trial court's rulings on the scope of defendant's easement and modify the damages to the $5000 originally awarded by the trial court.