APPELLATE COURT OPINIONS

Plaintiff, who had a pre-existing herniated disk, was rear-ended in a vehicular accident seven weeks after the first injury. A diskectomy was performed six months later. Treating physician equivocated when asked whether the diskectomy was necessitated by the second injury, testifying, "maybe yes; maybe no." Trial court found that Plaintiff's need for surgery was caused by incident and awarded Plaintiff judgment against Defendant for all medical expenses related to the surgery, lost wages and pain and suffering. Plaintiff did not present sufficient proof to establish that incident was cause in fact of need for surgery for physician could not state with reasonable degree of medical certainty that need for surgery was the result of the incident. Further, lay testimony of Plaintiff and Plaintiff's brother was insufficient to prove cause in fact of Plaintiff's need for surgery. Accordingly, we reverse the trial court.

This is an appeal of a termination of parental rights case. Appellant mother contends that the
petitioners have no standing to bring the petition and also that the petitioners failed to prove by clear and convincing evidence the grounds for termination and that the termination was in the best interest of the child. We affirm.
 

Basil Marceaux (“Plaintiff”) filed this lawsuit against “The Citizen David Norton.” David Norton (“Defendant”) is the Soddy Daisy City Court Judge. Plaintiff brought this lawsuit because Defendant had found him guilty of violating the Tennessee Financial Responsibility Law and imposed a fine. Plaintiff claims these actions by Defendant violated his federal constitutional rights. The Trial Court dismissed Plaintiff’s complaint after concluding, inter alia, that Defendant was judicially immune. Plaintiff appeals, and we affirm.

Appellant is an inmate of the Department of Corrections serving two life sentences for two first degree murder convictions with sentences imposed in 1978. He became eligible for parole, and on July 3, 2001, a hearing was held before the Tennessee Board of Probation and Parole. His application for parole was denied on July 3, 2001 and review of parole was set for July of 2011. Final disposition denying parole was entered October 2, 2001. On October 29, 2001, Appellant petitioned for a writ of certiorari in the Chancery Court of Davidson County, Tennessee, which petition was dismissed by the trial court on January 10, 2003. We affirm the trial court Order of Dismissal relative to the merits of the denial of parole but hold that postponement of parole review until July of 2011 was an arbitrary exercise of power by the parole board and, therefore, reverse the Order of the trial court.

Honnie Gunnoe and Virginia Ott Gunnoe ("Plaintiffs") sued their neighbors, Gerald Lee Lambert and Janice Lee Lambert ("the Lamberts") and L.D. Simerly and Geraldine Simerly ("the Simerlys") seeking, among other things, to quiet title to a parcel of land. After a bench trial, the Trial Court found, inter alia, that Plaintiffs did not own the land in question. Plaintiffs appeal. We affirm.

Charles Beard, Sr. ("Father") filed a petition seeking to have primary residential custody of the parties' two children transferred from Florence E. Beard ("Mother") to him. In the alternative, Father sought a reduction in his child support payments. After a hearing, the Trial Court refused to change the custody arrangement, again designating Mother the primary residential parent. The Trial Court did not alter Father's child support payments. Father appeals. We affirm.

Morgan Susanne Foxx (“Wife”) sued Steven C. Bolden (“Husband”) for a divorce. After a lengthy trial, the Trial Court granted the parties a divorce, divided the marital property, and awarded Husband $25,000 in attorney fees. Wife appeals claiming, among other things, that the Trial Court erred when it failed to classify any of Husband’s TVA funded retirement pension as marital property and equitably distribute it. Wife also claims the award of attorney fees to Husband was an abuse of discretion. We agree with Wife regarding the pension and, therefore, vacate the judgment as to the marital property division and remand this case to the Trial Court to determine how much of Husband’s TVA funded retirement pension is marital property and to make an equitable distribution of all the marital property, including this additional asset. We likewise vacate the award of attorney fees to Husband since the propriety of that award may be affected by the marital property distribution. We affirm the granting of the divorce.
 

Husband-appellant appeals order of the trial court holding him in civil contempt and designating punishment and the order of the trial court denying motion to modify alimony order. The notice of appeal was filed 30 days from the date of the trial court’s order denying the motion to modify but the filing was approximately one year after the contempt order. On appeal, we dismiss the appeal of the contempt order as untimely and affirm the order denying modification. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Dismissed in Part, Affirmed in Part and Remanded W. FRANK CRAWFORD, P.J.,

Appellee-wife of deceased spouse sued a notary public and his bonding company for damages resulting in the notary public’s taking the acknowledgment of the signature of wife’s imposter to a waiver of retirement benefits and completing the acknowledgment certificate. The trial court found that the notary public owed a duty of reasonable care which he breached resulting in damage to appellee-wife and entered judgment for wife. Notary public appeals. We affirm.

Plaintiff corporation sued former employees/officers alleging breach of non-compete
agreements, breach of fiduciary duty, conversion, unfair competition, intentional inducement to
breach a contract, and unjust enrichment. The trial court granted employees summary judgment on all claims and, on appeal, this Court affirmed the trial court’s grant of summary judgment on breach of non-compete agreements and conversion of intangible personal property claims. This Court reversed the summary judgment on the remaining claims and remanded the case for trial. The pending case on remand was voluntarily dismissed in the trial court and, subsequently, plaintiff sued defendants for the same remanded claims. Defendants moved to dismiss on the doctrine of res judicata (splitting cause of action) and the trial court denied the motion. After a trial on the merits, the trial court entered monetary judgment against defendants. Defendants appeal. We affirm in part as modified and reverse in part.

I concur fully with the majority’s well-reasoned opinion except in one respect. The majority concludes that the evidence preponderates against the trial court’s finding that B&L’s customer information, such as customer names, prices charged for services rendered, customer contract renewal dates and the identity of customer representatives, constituted confidential information. I disagree with the majority’s reasoning on this issue.
 

This case involves a dispute over the existence and location of two easements and a request for a mandatory injunction. The first disputed easement arises from the usage of the Plaintiff's property by adjacent owners and the second disputed easement arises from a transfer of property from the Defendants to Plaintiff. The trial court below found that only one of the disputed easements was before the court as an issue and found the easement existed over Plaintiff's land. In addition, the trial court did not issue, and made no findings regarding, the mandatory injunction requested by Defendants. For the following reasons, we affirm in part and remand.

This appeal involves a business dispute with multiple claims for breach of three separate contracts. The trial court found Reed Welch and his company, S& S Screw Machine Company, Inc., in breach in various ways and awarded a total of $1,032,133.15 in damages to Jay and Gail Johnson, both personally and as the owners of Quality Metal Treating, Inc. We affirm in part and reverse in part the judgment of the trial court.

Father appeals the termination of his parental rights as to his two children. The parents are divorced and Mother's parental rights were also terminated; however, she did not appeal. As the trial court made no findings of fact in accordance with Tennessee Code Annotated section 36-1-113(k), we remand this case for a finding of facts by the trial court.

These consolidated cases present two separate factual situations involving alleged liability of the state under the Tennessee Claims Commission Act, Tennessee Code Annotated section 9-8-301, et seq., for dangerous conditions existing on two separate highways. In both cases the State asserted in defense discretionary function immunity. Because this defense is central to both cases, the Claims Commission consolidated the cases for consideration of the applicability of discretionary function immunity. In an en banc order, the Commission, construing Tennessee Code Annotated section 9-8-307(d) and cases based upon that section, overruled the State’s motions for summary judgment. We hold that under the plain and unambiguous provisions of Tennessee Code Annotated section 9-8-307(d) the State is not entitled to assert  discretionary function immunity in actions under the Tennessee Claims Commission Act and affirm the judgment of the Claims Commission.

This appeal arises from a dispute over proceeds from a failed television series. Appellants contracted with the owner of the copyright to handle distribution of the series for which they were to receive a percentage of profits. Owner of the copyright also contracted with Appellees to secure funding for the series with Appellees' obligation limited to $1.6 million in expenses for the series. To that end, Appellees paid vouchers submitted by owner of the copyright, which included payment of agents fees to Appellants. When the $1.6 million cap was reached, Appellees stopped paying vouchers. The owner of the copyright subsequently filed for bankruptcy. Appellants sued Appellees and alleged numerous causes of action in both contract (i.e., oral contract, answering for debt of another, partial performance, promissory estoppel, and The Statute of Frauds) and tort (i.e., fraud, promissory fraud, negligent misrepresentation, tortious interference with contract, interference with business relationship, concert of action/joint enterprise). The trial court granted summary judgment to Appellees on all causes of action. Appellants appeal. We affirm.

This case involves the enforcement of a non-compete agreement. Plaintiff filed suit to enjoin Defendant from practicing medicine in violation of a covenant not to compete entered into by the parties. The trial court granted Plaintiff's application for a temporary injunction from which Defendant sought this interlocutory appeal. We reverse in part, affirm in part, and remand.

The appellant filed a petition for common law writ of certiorari seeking judicial review of a decision of the Board of Paroles to deny him parole. The trial court dismissed the petition as untimely filed. We affirm.

On May 5, 1999, TPC Facility Delivery Group, LLC entered into a Preliminary Design-Build Agreement with defendant PAMOB, LLC in connection with the construction of a proposed medical office building in Tullahoma, Tennessee. TPC was to provide architectural, engineering, and general contracting services under this agreement. The initial contract provided for an additional agreement to be entered into by the parties if the owner elected to proceed with the project beyond the Preliminary Design-Build services. On December 18, 2001, TPC filed suit in Williamson County Chancery Court claiming it performed additional services to PAMOB beyond those designated in the Preliminary Agreement all of which were allegedly authorized by various defendants. For these additional services, TPC submitted bills to PAMOB which were never paid. In response to the complaint, the defendants filed separate motions to dismiss on the grounds of improper venue. On May 6, 2002, the trial court heard oral arguments from all counsel and found the motion to dismiss should be granted. On July 19, 2002, the trial court entered its Order of Dismissal dismissing TPC's complaint on the grounds of improper venue. Notice of this appeal soon followed. For the reasons set forth below, the order of the trial court dismissing the complaint for improper venue is affirmed.

Administrative Law Judge vacated Certificate of Need, which had been granted by Tennessee Health Facilities Commission, on grounds of conflict of interest of a Commission member and erroneous information set forth in application for Certificate of Need. Chancery Court affirmed. We affirm, holding that the vote of a Commission member with a conflict of interest is void ab initio. Commission member with conflict of interest had an affirmative duty pursuant to Rules of Tennessee Health Facilities Commission 0720-1-.02(1) to not only disclose the conflict but to recuse himself. Adverse party's failure to raise the conflict was not a waiver for there can be no waiver of the public's interest in having all votes of the Commission take place without members who have a conflict.

In an action to enforce right to easement, the Trial Court enjoined defendant to remove gate across easement and otherwise not interfere with plaintiffs' use. On appeal, we affirm.

This dispute arose out of a breach of contract claim in which Plaintiff asserted Defendant owed upwards of $20,000.00 for goods and services provided from March 1996 through August 1997. Defendant raised affirmative defenses and filed a counterclaim for fraud, alleging that Plaintiff intentionally submitted false billings. Plaintiff moved for summary judgment. The Chancery Court granted Plaintiff’s motion for summary judgment on the complaint and dismissed Defendant’s counterclaim for fraud. Defendant appealed. We affirm the judgment of the trial court.

Mickie R. McBee ("Plaintiff") signed a Promissory Note evidencing an indebtedness to J. Lynn Nance ("Defendant") in the amount of $15,000. The Promissory Note ("Note") was secured by a Deed of Trust on Plaintiff's house. After Plaintiff failed to make any payments on the Note, Defendant foreclosed on the house. Plaintiff then filed this lawsuit challenging the adequacy of the consideration supporting the Note. At trial, Defendant testified to various cash loans he made to Plaintiff which he claimed constituted adequate consideration for the Note. Plaintiff claimed these were gifts, not loans. The Trial Court concluded the Note was supported by adequate consideration and dismissed the complaint. Plaintiff appeals. We affirm.

This appeal involves a claim for unemployment compensation benefits by Lisa Huckabee ("Claimant"). When Claimant was hired by Watkins & Son, Inc. (the "Employer"), the Employer's policy prohibiting fraternization between employees was explained to her. Nevertheless, Claimant began a consensual affair with a coworker. The coworker's employment was terminated when the Employer learned of the affair. It is disputed as to whether Claimant was discharged or quit before she could be discharged. The Board of Review concluded that Claimant was disqualified from receiving benefits regardless of whether she quit or was discharged. The Trial Court reversed after concluding, inter alia, that the issue of whether Claimant was discharged for work related misconduct was not an issue the Board of Review could properly consider because the Employer did not raise that issue at the previous two administrative levels. The Trial Court also concluded that the decision by the Board of Review was not supported by substantial and material evidence. We reverse the judgment of the Trial Court and reinstate the judgment of the Board of Review.

In this appeal, the ex-husband challenges the trial court's order denying his post-divorce petition to modify alimony and finding him in "technical contempt." We find that the proof is inadequate to establish willful efforts to defeat alimony obligations, that his change of employment was not voluntary and that a substantial and material change of circumstances has occurred, justifying some relief from the alimony obligation. The trial court did not err in holding the ex-husband to be in contempt. We reverse the judgment in part, affirm the judgment in part, and remand the case for further proceedings.