COURT OF APPEALS OPINIONS

Wright vs. Hull
M1999-02307-COA-R3-CV

Authoring Judge: Judge William B. Cain
Trial Court Judge: Billy Joe White
Plaintiff/Appellee, Bill D. Wright, sued to set aside a 1986 deed whereby he conveyed a certain tract of land to Defendant/Appellant, Bonnie S. Hull. He charged failure of consideration and fraud. Defendant, Ms. Hull, asserted that she and Mr. Wright cohabited without marriage for twelve years until their separation in 1998. She asserted that the property conveyance was a gift and was also conveyed to her by Mr. Wright to put the property out of the reach of his creditors. The trial court held the parties to be equal tenants in common and ordered the property sold. We reverse the trial court and dismiss the case.

Hartsville Hospital vs. Bay Nat'l Bank & Trust Co.
M1999-01276-COA-R3-CV

Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: C. K. Smith
This appeal arises from a dispute over the ownership of monies held in a bond fund. Hartsville Hospital Incorporated ("Hartsville") filed suit against Bay National Bank ("Bank") seeking the contents of the fund. The court below entered judgment for Hartsville, holding that Bank had no claim to the bond fund money pursuant to a release agreement between the parties and that Hartsville was not estopped from asserting ownership. Bank appeals.

Huffer vs. State
M1999-01278-COA-R3-CV

Authoring Judge: Judge Ben H. Cantrell

The claimants sought to hold the State liable for the personal injuries and deaths caused in an automobile accident on U.S. Highway 64 in Franklin County. After first holding that the State's negligence was the cause of twenty-five percent of the damages, the Claims Commissioner modified his findings and concluded that the State had a discretionary function immunity and that the sole proximate cause of the accident was the negligence of the driver of the automobile in which the injured persons were riding. We affirm on the proximate cause issue.

Johnson vs. Allstate
M1999-01639-COA-R3-CV

Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Buddy D. Perry
Insured sued his insurer to recover policy coverage due on a fire loss to his automobile after the insurer denied coverage under the fraud provision of the policy. Judgment was entered on a jury verdict for the insured, and the insurer has appealed.

American Airlines vs. Johnson
M1999-02390-COA-R3-CV

Authoring Judge: Judge David R. Farmer
Trial Court Judge: Carol L. Mccoy
American Airlines, Inc., appeals the trial court's final judgment denying its request for a refund of use taxes paid on aviation fuel purchased out of state during the years 1992 through 1995. We affirm the trial court's judgment.

Mills vs. Solomon
M1998-00393-COA-R3-CV

Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert E. Corlew, III
These proceedings began when David Mills filed a complaint seeking to condemn an easement across Linda Solomon's property. In bifurcated proceedings, the jury first determined the location of Mills' easement across Solomon's property and, later, found that Solomon was entitled to an award of damages totaling $11,908 for the easement, including $9900 in incidental damages. On appeal from the trial court's judgment entered on the jury's verdict, Mills challenges only the award of $9900 in incidental damages. We agree with Mills' contention that the record fails to contain material evidence to support the award of incidental damages, and we reverse that portion of the trial court's judgment.

Union Planters vs. Island Management
W1999-00541-COA-R3-CV

Authoring Judge: Judge David R. Farmer
Trial Court Judge: D. J. Alissandratos
This is a dispute regarding the repayment of a $350,000.00 loan that Union Planters National Bank ("Union Planters") made to Island Management Authority, Inc. ("Island Management") in 1989. The trial court found that Mr. Criss, Mr. Tigrett, and Mr. Richards, each of whom had executed a guaranty in favor of Union Planters, are jointly and severally liable to Union Planters for the outstanding balance of this loan. For the reasons set forth below, we affirm the ruling of the trial court.

Emmanuel Page vs. Doctor R. Crants
W1999-02127-COA-R3-CV

Authoring Judge: Judge David R. Farmer
Trial Court Judge: Jon Kerry Blackwood
An inmate sentenced in Wisconsin and transferred to Tennessee, where he is presently incarcerated, appeals from the trial court's order dismissing his petition for writ of habeas corpus. We affirm.

Lisa Alfaro Munday vs. William Mark Munday
E1999-02605-COA-R3-CV

Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Daryl R. Fansler
In this post-divorce proceeding, the trial court designated William Mark Munday ("Father") as the primary residential custodian of two of the parties' children. He had been awarded primary residential custody of the parties' third child at an earlier time. Lisa Alfaro Munday ("Mother") appeals, arguing (1) that the trial court lacked subject matter jurisdiction to modify the custodial arrangement and (2) that there had not been a material change of circumstances to warrant a change in custody. We affirm.

Alvin Herring vs. Interstate Hotels
W1999-01055-COA-R3-CV

Authoring Judge: Judge David R. Farmer
Trial Court Judge: John R. Mccarroll, Jr.
This is a dispute between Plaintiff Alvin O. Herring, Jr. and Defendant Interstate Hotels, Inc. d/b/a Memphis Marriott ("Memphis Marriott") regarding the theft of Mr. Herring's property from the Memphis Marriott's premises. The Memphis Marriott argues on appeal that the trial court erred in denying its motion for an extension of time to file an answer to Mr. Herring's complaint, in granting Mr. Herring's motion for a default judgment, and in denying its motion to set aside the default judgment. For the reasons set forth below, we affirm the ruling of the trial court.

J.C.Bradford vs. Southern Realty
W1999-01617-COA-R3-CV

Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: D. J. Alissandratos
This cause came to be considered by the Court upon a claim for misrepresentation arising from a real estate transaction. This is the second occasion that the Court has had to address this case. Initially, this cause was set for trial, and following opening statements, the Chancellor ruled from the bench in the defendants' favor. On appeal, this Court remanded the cause to the trial court for further proceedings consistent with the opinion. On remand, the defendants filed a motion for summary judgment, renewed a previously filed motion to dismiss and filed a counterclaim for attorneys fees. The trial court granted the defendants the requested relief. This appeal followed. Upon consideration of the record, the Court finds that the trial court's orders granting summary judgment, dismissing the complaint and awarding attorneys' fees should be vacated and that the cause should be remanded to the trial court for further proceedings consistent with this opinion.

Daniel Ray Stanfill vs. Karen Elaine Wright Stanfill
E1999-01878-COA-R3-CV

Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Bill Swann
In this post-divorce proceeding, the trial court modified the judgment of divorce by changing the custody of Christopher Stanfill (DOB: February 12, 1993) from Karen Elaine Wright Stanfill ("Mother") to Daniel Ray Stanfill ("Father"). The trial court also established Mother's visitation rights with her son. We affirm.

Kenneth L. Storey vs. Randall Nichols, et al
E1998-00851-COA-R3-CV

Authoring Judge: Justice Janice M. Holder
Trial Court Judge: David H. Cate
An accused awaiting trial on a charge of aggravated rape filed an action in the Chancery Court of Knox County against the district attorney general and two of his assistants. The complaint sought an injunction preventing the defendants from proceeding with his prosecution, a money judgment to compensate him for his mental and physical suffering, and the loss of over two years of valuable time. The complaint also sought to disbar the defendants. The Chancery Court granted summary judgment to the defendants. We affirm.

William P. Henderson, et al vs. Henry Clay Hart, Jr.
E1999-01446-COA-R3-CV

Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Harold Wimberly
This appeal arises from an executory contract for the sale of real property. Henry Clay Hart, Jr., the Appellant, appeals the judgment from the Knox County Circuit Court in favor of William P. Henderson and Lillian R. Henderson, the Appellees. Mr. Hart raises the issues of whether the Trial Court had proper subject matter jurisdiction to hear the case and whether the Court erred in finding that the executory sales contract was no longer in effect. We affirm the judgment of the Trial Court and remand for such further proceedings as may be necessary consistent with this opinion. We adjudge costs of appeal against Henry Clay Hart, Jr. and his surety.

In Re: Estate of Bernie Riggs
W1999-01905-COA-R3-CV

Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Lee Moore
This appeal arises from a dispute over the disposition of the assets of Bernie F. Riggs ("Husband"). Plaintiff Julia Mae Riggs ("Wife") filed suit, alleging that Defendant Campbell ("Daughter") had used undue influence and had improperly disposed of Husband's assets through a power of attorney. The trial court found in favor of Daughter, holding that all transactions were valid and in accordance with Husband's wishes. Wife appeals.

Judd's Inc. vs. Dors L. Muir, et al
E1999-01836-COA-R3-CV

Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Telford E. Forgerty, Jr.
In this appeal Doris and Allan Muir insist that the Chancellor was in error in not allowing their homestead exemption as to certain funds realized from the sale of real estate to satisfy a judgment previously entered against them. Their attorney, W. Richard Baker, Jr., insists that the Chancellor was in error in not enforcing a lien for his attorney fees that he claimed was properly perfected as to the same funds. We affirm.

LeCroy-Schemel vs. John Cupp, Sheriff
E2000-00024-COA-R3-CV

Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Douglas A. Meyer
An attorney was found in contempt by the Chattanooga City Court Judge during proceedings relating to the attorney's client's conviction for violation of a municipal ordinance. The Judge ordered a ten-day jail sentence for the attorney, who was taken into custody and locked in a holding cell. The attorney was able to secure a writ of habeas corpus from the Hamilton County Criminal Court. After the attorney was released, the City Court Judge filed an Order to Appear and Show Cause why the attorney should not be jailed for contempt. The Criminal Court held a hearing at which it heard testimony of the attorney and another witness, and found that the City Court had exceeded its statutory authority by confining the attorney for contempt, that the City Court had not followed procedural requirements for punishing contempt, declared a section of the Chattanooga City Charter null and void, and dismissed the City Court's Order to Appear and Show Cause. The City of Chattanooga appealed the orders of the Criminal Court. We affirm the actions of the Criminal Court relating to the writ of habeas corpus, affirm the finding that the City Court was without authority to punish criminal contempt by confinement or fine in excess of ten dollars, and modify the judgment to reflect the holding of this Court in Poole v. City of Chattanooga.

Dickson County, Tennessee, v. H. Clyde Jennette, et al.
M1999-00054-COA-R3-CV

Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Allen W. Wallace

This case involves the use of certain property in Dickson County in light of a 1988 zoning ordinance which provides that mining and quarrying on this property are permitted as a special exception only. When the county attempted to enjoin the property owners from mining or quarrying their property, the property owners argued that their property was being used as a quarrying operation prior to October 1988 when the city passed the zoning ordinance. Thus, it is the property owners' position that their quarrying operation constitutes a pre-existing nonconforming use and may continue pursuant to both the Dickson County zoning ordinance and Tennessee Code Annotated section 13-7-208(b). In addition, the county enjoined the property owners from hauling rock in violation of a fifteen-ton weight limit on local roads. The property owners argued below that the enforcement of this local rule against them constitutes selective enforcement. The trial court found that the property owners had failed to show a nonconforming use, and it dismissed their claim for selective enforcement. On appeal, we find that the trial court was correct in its conclusion that the property owners' operation was not a nonconforming use at the time of the adoption of the zoning ordinance. In light of that finding, the temporary injunction regarding the fifteen-ton weight limit is dissolved, and the selective enforcement issue does not need to be addressed.

JoeTrammell and Karen Trammell v. George W. Pope, Jr., Individually and d/b/a Achieva Homes
M1999-00886-COA-R3-CV

Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancelor Russ Heldman

This appeal arises out of a default judgment rendered against the Appellant. The underlying cause of action was for the breach of a  construction contract. After the Appellant did not answer the complaint or otherwise defend the action, the Chancery Court of Williamson County  granted the plaintiffs’ motion for default and entered judgment accordingly.  A subsequent damage hearing was held at which the Appellant did not  appear. The Appellees obtained a judgment for $918,073.15. The  Appellant filed an application to set aside the default judgment which was  denied by the trial court.

Willie Perry v. Cold Creek Correctional Facility Disciplinary Board, et al.
M1999-01898-COA-R3-CV

Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This case arises from the decision of the Cold Creek Correctional Facility Disciplinary Board finding the Appellant guilty of attempting to intimidate an employee and being under the influence of alcohol. The Appellant filed a Petition for Common Law and Statutory Writ of Certiorari with the Chancery Court of Davidson County challenging the Disciplinary Board's decision. The trial court affirmed the decision of the Board and dismissed the Appellant's claim.

William Andrew Dixon v. Donal Campbell, Commissioner Tennessee Department of Correction
M1999-02122-COA-R3-CV

Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Chancellor Carol L. McCoy

A prisoner serving a life sentence petitioned the court to order the Department of Correction to restore sentence reduction credits it had deleted from his record after determining that his sentence was to be served without the possibility of parole. The trial court dismissed the petition. We affirm the trial court.

South Central Tennessee Railroad Authority, et al., v. Andre Harakas, et al.
M1999-00567-COA -R3-CV

Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Donald P. Harris

Plaintiffs, the owner and lessee of property on which a railroad track was located, obtained a temporary injunction prohibiting Defendants, owners of adjacent property, from building a house on what Plaintiffs alleged was their right-of-way. After Defendants presented evidence that Plaintiffs possessed only an easement as needed for railroad operations, rather than a right of-way, the court dissolved the temporary injunction and denied a permanent injunction. Defendants then filed a motion to assess damages and enforce liability of surety on injunction bond pursuant to Tenn.R. Civ. P. 65.05, seeking recovery for the losses resulting from the issuance of the temporary injunction. Defendants appeal the trial court's denial of their motion. We reverse. Tenn. R. App. P. 13 Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded.
 

Nancy D. Bracken, v. Richard Earl, D/B/A Financial Services Company
E2000-00202-COA-R3-CV

Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Harold Wimberly

Plaintiff sued to recover monies paid to defendant. Defendant defended on the grounds that the monies were paid to a trust fund for which he was not liable. The Trial Court held the trust had no validity and entered judgment against the defendant. We affirm.

Tennessee-American Water Company, v. City of Chattanooga, Tennseess, et al.
E2000-00415-COA-R3-CV

Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor Howell N. Peoples

The City of Chattanooga asserted, by counter-claim, that the franchise rights of a state-franchised water company had terminated when the original stated corporate existence of ninety-nine years expired. The Hamilton County Chancery Court found that the water company's franchise was separate from the incorporation, that perpetuity of the franchise is the appropriate interpretation when there exists no limiting language in the franchise grant itself, and that the water company had not trespassed by continuing to operate in Chattanooga past the expiration of the original ninety-nine year grant of corporate existence. The judgment of the Chancellor is affirmed.

Teresa Miles vs. Earl Pace
W1999-00407-COA-R3-CV

Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Joe C. Morris
Four tenants in common, each owning a one-eighth interest in the property, filed suit for sale for partition against the other tenant in common, owning a one-half interest. After a non-jury trial, the court found that the property was so situated that it could not be partitioned and also found that it would be manifestly for the advantage of the parties that the property be sold rather than partitioned. The tenant in common owning one-half interest has appealed. We affirm, because the evidence does not preponderate against the findings of the chancellor.