Jasmine Ali v. Eric Fisher, et al
E2003-00255-SC-R11-CV
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge John S. McLellan, III

We granted this appeal to determine whether an owner who negligently entrusted his car to another may be held vicariously liable for the driver's negligence in the operation of the car. The trial court submitted the case to the jury for allocation of fault on comparative fault principles, and the jury found the owner twenty percent (20%) at fault and the driver eighty percent (80%) at fault. The trial court later amended the judgment by holding that the owner-entrustor was vicariously liable for the negligence of the driver-entrustee and thus liable for all of the compensatory and punitive damages. The Court of Appeals held that the trial court erred in concluding that the owner-entrustor was vicariously liable for the driver-entrustee's actions and reinstated the initial judgment. After reviewing the record and applicable authority, we conclude that an owner-entrustor's liability for negligent entrustment does not result in vicarious liability for the negligence of the driver-entrustee and that the trial court erred in holding the owner-entrustor liable for all the damages. We therefore affirm the Court of Appeals' judgment and remand the case to the trial court for further proceedings consistent with this opinion.

Donnie Wayne Johnson, Jr., v. City Roofing Company
W2003-01852-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge William B. Acree

This case is an appeal from an order granting Appellee’s motion for summary judgment. Appellant argues, as he did at trial, that this case involves genuine issues of material fact, rendering summary judgment inappropriate for this action. For the following reasons, we affirm.

St. Paul Reinsurance Co., LTD, v. Robert Williams and Sherrod Jackson, Individually and D/B/A Pure Passion, Pure Passion, Inc. and Eugene Pugh
W2003-00473-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Walter L. Evans

This case arises from events surrounding the shooting death of Decedent, Appellant’s son. Appellee filed a motion for summary judgment claiming its policy of insurance did not apply to the
circumstances of this case because Appellant’s claim was specifically excluded from the insurance policy. The trial court granted Appellee’s motion for summary judgment and, for the following reasons, we affirm.

Rocky Garner v. Phil Breeden & Associates
M2002-03103-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Carol L. McCoy

Appellant sued Appellee for breach of contract or in the alternative for quantum meruit value of services rendered. At the conclusion of Plaintiff's proof the trial court sustained a motion for a directed verdict on behalf of Defendant as to the quantum meruit claim and further sustained that motion on a large portion of the contract claim. As to remaining portions of the contract claim the motion for a directed verdict was overruled, and Plaintiff voluntarily dismissed the remaining claims without prejudice. We hold that the trial court erred in granting the motion for a directed verdict as to the contract case but correctly granted a directed verdict as to quantum meruit. The judgment of the trial court is affirmed in part, reversed in part and remanded for trial on the contract issues.

Robert Kendall Broadbent v. Shari Katherine Langhi Broadbent
M2003-00583-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Marietta M. Shipley

This appeal involves a dispute over the responsibility for investment losses incurred by a spouse before and during the parties’ marriage. After only one year of marriage, the husband filed suit for divorce in the Circuit Court for Davidson County. The wife counterclaimed for divorce and, among other relief, sought alimony in solido to offset the loss of her separate property resulting from the husband’s aggressive stock market trading. Following a bench trial, the trial court granted the wife a divorce on the ground of inappropriate marital conduct and then, employing a comparative fault analysis, determined that the husband should pay the wife $51,500 in alimony in solido to reimburse her for her separate property lost in the stock market. The husband has appealed. We have determined that the wife is not entitled to be reimbursed for the losses caused by the husband’s investments.
 

Jamie Edward Hines v. Terrell Lynn Simms
M2003-01459-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Muriel Robinson

This appeal involves a custody dispute triggered by a paternity action. The trial court fashioned a permanent parenting plan which named Father the primary residential parent during the school year and Mother the primary residential parent during summer vacation. Mother appeals. We affirm the judgment of the trial court.

Ricky Eugene Cofer v. State of Tennesse
E2003-01400-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James B. Scott, Jr.

The petitioner, Ricky Eugene Cofer, appeals the order of the Circuit Court for Anderson County dismissing his post-conviction relief petition. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner's claim of ineffective assistance of trial counsel was previously determined on direct appeal. The petition was properly dismissed. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Bobbi Jo Fisher v. Tennessee Insurance Company - Concurring
E2004-00189-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Harold Wimberly

While I concur in the majority’s decision to reverse and dismiss this case, I feel it necessary to concur separately to state my understanding that our holding in this case is limited to an insured’s claim for collision damage coverage only. I believe there may be public policy considerations that would need to be considered in a case involving liability, as opposed to collision, coverage. That question is not now before us, and I do not believe those public policy considerations are applicable in a case such as the one now before us involving an insurance claim solely for collision damage coverage. I, therefore, concur in the majority’s decision to reverse and dismiss.

Bobbi Jo Fisher v. Tennessee Insurance Company
E2004-00189-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Judge Harold Wimberly

The defendant issued a policy of automobile insurance to the plaintiff which provided coverage for liability claims and for collision damage, but each of these insuring agreements was subject to an exclusion of coverage if the insured automobile was being operated by a non-licensed driver at the time of the accident giving rise to the claim. The plaintiff loaned her Pontiac to a non-licensed driver under the mistaken belief that he was properly licensed. The trial judge found that the plaintiff reasonably believed that her permittee had a valid driver’s license and allowed recovery. We reverse and dismiss.
 

Kyle Ann Wiltse v. Christopher Allen Wiltse
W2002-03132-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge James F. Russell

This case involves issues arising out of the parties’ divorce. The trial court divided the parties’ marital assets, awarded Appellee alimony in futuro, ordered Appellant to pay Appellee’s attorney’s fees, and ordered Appellant to pay for Appellee’s health insurance premiums. For the following reasons, we affirm in part, modify in part, and remand for any further proceedings.
 

Kenneth A. Brasel, Sr., v. John Stanley Brasel, Sr. et al.
W2003-02965-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge John R. McCarroll, Jr.

This is a child custody case. Father/Appellant appeals from the trial court’s Order, which
denied Father/Appellant’s Petition to change custody from the minor child’s grandparents to Father. Finding that there is not a material change in circumstances to warrant a change of custody and that Father is not entitled to the Superior Rights Doctrine, we affirm.
 

State of Tennessee v. Gdongalay P. Berry - Concurring and Dissenting
M2001-02023-SC-DDT-DD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

State of Tennessee v. Gdongalay P. Berry
M2001-02023-SC-DDT-DD
Authoring Judge: Justice William M. Barker
Trial Court Judge: J. Randall Wyatt, Jr.

A jury convicted the defendant, Gdongalay P. Berry, of two counts of premeditated murder, two counts of felony murder, two counts of especially aggravated kidnapping, and two counts of especially aggravated robbery, for the murders, kidnappings and robberies of DeAngelo Lee and Gregory Ewing.¹ Following a capital sentencing hearing, the jury found three aggravating circumstances in each murder: (1) that the defendant was previously convicted of one or more felonies other than the present charge, the statutory elements of which involve the use of violence to the person;² (2) that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; and (3) that the murder was knowingly committed, solicited, directed, or aided by the defendant while the defendant had a substantial role in committing or attempting to commit robbery or kidnapping. Tenn. Code Ann. § 39-13-204(i)(2), (6), (7) (1996). The jury also found that these aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. Accordingly, the jury imposed sentences of death for each of the murder convictions. As to the remaining felony convictions, the trial court sentenced the defendant as a violent offender, and imposed an effective fifty-year sentence, to run consecutively to the death penalty.³ The defendant appealed, challenging both his convictions and the sentences of death. After fully considering the issues raised by the defendant, the Court of Criminal Appeals affirmed the convictions and the sentences.

John Whitney Evans III v. Dinah Petree Evans
M2002-02947-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Jim T. Hamilton

In this appeal, Husband seeks to be relieved from his obligation to pay alimony in futuro to his former wife. In support of his request, Husband asserts that his former wife’s cohabitation with another man terminated his obligation since Wife was being supported by that third person and was in no need of alimony. The trial court denied Husband’s petition finding Wife was not living with a third person, had rebutted presumption that she does not need the alimony, and that no material change in circumstances had occurred to warrant modification of the initial award of alimony. We affirm those holdings. However, we reverse the trial court’s award of attorney’s fees to Wife.
 

John Whitney Evans III v. Dinah Petree Evans - Concurring
M2002-02947-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.

I concur with the results of the court’s opinion. However, I have elected to file this separate
opinion because I cannot concur with several parts of the court’s analysis.
 

Eloris Williams Presley v. Charles Ray Sattler
M2002-02868-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Carol L. Soloman

This appeal involves a former wife’s efforts to recover damages from her former husband for misdeeds during their marriage and following their divorce. Approximately ten years after the parties’ divorce in Louisiana, the former wife filed a pro se complaint in the Circuit Court for Davidson County seeking to recover $10,000,000 from her former husband for “eight years of trauma and distress, abuse and torture.” The former husband filed a pro se “exception” to the trial court’s subject matter jurisdiction. The trial court dismissed the complaint, and the former wife has appealed. We affirm the dismissal of the complaint.
 

Mary Finchum, individually and as Next of Kin to William Finchum, Deceased, v. Ace, USA, individually and as successor to CIGNA Ins Co., et al.
E2003-00982-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Wheeler A. Rosenbalm

The Trial Court dismissed the Complaint on a Motion filed pursuant to Tenn. R. Civ. P. 12.02(6). We vacate and remand because the Motion to Dismiss did not comply with the Rules of Civil Procedure.
 

Mary Finchum, individually and as Next of Kin to William Finchum, Deceased v. ACE, USA, individually and as successor to Cigna Insurance Co, et al.- Dissenting
E2003-00982-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.

The majority opinion concludes that the defendants’ motion to dismiss is deficient. I agree.
In Willis v. Tennessee Dep’t of Corr., 113 S.W.3d 706 (Tenn. 2003), the Supreme Court opined that Tenn. R. Civ. P. 12.06(6), construed in light of Tenn. R. Civ. P. 7.02(1), requires that a motion filed pursuant to 12.06(6) must state “why the plaintiff has failed to state a claim for which relief can be granted.” Willis, 113 S.W.3d at 709 n.2 (emphasis added). For example, in the instant case, the motion should have recited, on its face, that (1) the motion was filed pursuant to Tenn. R. Civ. P. 12.06(6), and (2) that the complaint fails to state a claim upon which relief can be granted “in that the claim is for breach of contract but fails to reflect a promise by any of the defendants,” or words to this effect. Having said all of this, I would hasten to add that I do not believe Willis requires that we vacate the trial court’s judgment in the case at bar.

Eva Mae Jefferies v. McKee Foods
E2003-01260-SC-R3-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Chancellor Howell N. Peoples

In this workers' compensation case, the employer, McKee Foods Corporation, has appealed the trial court's award of 50% permanent partial disability to the body as a whole to the employee, Eva Mae Jefferies. The trial court's award of benefits was based on a medical impairment rating calculated under the Fifth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment ("AMA Guidelines"), which was in effect at the time of trial. The employer's appeal was transferred to the full Supreme Court prior to a decision by the Special Workers' Compensation Appeals Panel. The employer contends in this Court that the trial court should have applied a medical impairment rating calculated under the Fourth Edition of the AMA Guidelines because the Fourth Edition was the edition in effect when the employee reached maximum medical improvement. Thus, the sole question for this Court is whether the trial court erred in awarding benefits using a medical impairment rating calculated under the Fifth Edition of the AMA Guidelines. After carefully examining the record and the relevant authorities, we find that in determining the extent of the employee's vocational disability, the trial court should have used a medical impairment rating calculated under the Fourth Edition of the AMA Guidelines. Accordingly, the judgment of the trial court is reversed. The case is remanded for further proceedings consistent with this opinion.

State of Tennessee v. Anthony Antonio Anderson
W2003-01418-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Appellant, Anthony Antonio Anderson, was convicted by a Madison County jury of rape and was sentenced to nine years in the Department of Correction as a violent offender. On appeal, he argues that the evidence presented at trial was insufficient to support the verdict. After review, we find no error and affirm the judgment of the trial court.

Joe Rankin and wife, Brenda Rankin v. Lloyd Smith
W2003-00992-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor J. Steven Stafford

This is a breach of contract case. The plaintiffs entered into a contract to sell their home and
farm to the defendant. On the scheduled closing date, the defendant refused to purchase the property. The plaintiffs sold the property to a third party for substantially less than the amount the defendant had agreed to pay. In April 2002, the plaintiffs filed the instant lawsuit against the defendant for breach of contract. The defendant argued that he was fraudulently induced into signing the contract, because the parties had a verbal understanding that the contract would not be enforced. The trial court granted summary judgment in favor of the plaintiffs. The defendant now appeals. We affirm, finding that the defendant alleges promissory fraud, that evidence of the parties’ verbal agreement is inadmissible under the parol evidence rule, and that the evidence submitted by the defendant does not create a genuine issue of material fact regarding fraudulent inducement.

Robert D. Walsh v. State of Tennessee
W2003-02040-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Arthur T. Bennett

The Appellant, Robert Walsh, appeals as of right from the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. Walsh was convicted in 1999 of aggravated sexual battery of a foster child who was in his care. On appeal, Walsh contends that: (1) he was denied the effective assistance of counsel based upon trial counsel’s cross-examination of the victim and (2) his right to a fair and impartial jury was violated by a deputy sheriff’s comments to the jury during deliberations. After review of the issues presented, the judgment is affirmed.

Tammy Barker v. Vernon Barker
W2003-01989-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor D. J. Alissandratos

This is a divorce case. The parties were married for three years prior to their separation, and two children were born during the marriage. The mother filed a petition for divorce, and the father filed a counterclaim for divorce. After a bench trial, the trial court entered a final decree of divorce and a parenting plan. In the plan, the father was permitted supervised visitation with the children, but was required to undergo a psychological evaluation in order to continue that visitation. The plan also provided that the children’s guardian ad litem would be the “binding arbitrator” on all matters involving the father’s visitation. The father now appeals, claiming that the trial court erred in requiring him to undergo a psychological evaluation and in appointing the guardian ad litem as the arbitrator on matters involving his visitation schedule. Because the father did not properly object to the issues raised on appeal, they are deemed to be waived. Therefore, we affirm.

James A. Drake, Jr. v. JPS Elastomerics Corp.
W2003-01579-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor D. J. Alissandratos

This case involves the breach of an employment compensation contract. Under the sales employee’s compensation plan with his employer, he was to earn extra commission for any sales that exceeded his annual quota. In the compensation plan, the employer reserved the right to pay only the standard commission on “windfall” sales. For the fiscal year at issue, the sales employee exceeded his quota. The employer invoked the windfall provision of his compensation plan and paid him only the standard commission on the sales over his quota. The sales employee sued his employer, arguing that he was entitled to the extra commission on the sales over his quota. On cross-motions for summary judgment, the judge ruled in favor of the plaintiff sales employee. On appeal, the defendant employer argues that the “windfall provision” applies to all sales that were unbudgeted or unforecast and that the plaintiff sales employee’s excess sales fall in that category. We hold that the defendant employer’s interpretation conflicts with the plain meaning of the contract, and affirm the decision of the trial court.

David E. Hunter v. Goodyear Tire and Rubber Company
W2003-02143-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Ron E. Harmon, Chancellor
In this appeal, the employer insists the award of permanent benefits based on 9 percent permanent partial disability benefits to the right leg is excessive as being against the preponderance of the evidence. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court.