COURT OF APPEALS OPINIONS

Zachary Rosenberg, et al. v. BlueCross BlueShield, et al. - Concurring
M2005-01070-COA-R9-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Ellen Hobbs Lyle

I concur with the court’s conclusion that the plaintiffs have not demonstrated that the provision in the Commercial Provider Administration Manual requiring them to be responsible for one-half of the fees and expenses directly related to conducting the arbitration renders arbitrating
their claims prohibitively expensive. The plaintiffs have the burden of proof on this point, Green Tree Fin. Corp. - Ala. v. Randolph, 531 U.S. 79, 92, 121 S. Ct. 513, 522 (2000), and thus they must demonstrate that it will be prohibitively expensive for them to pursue their claims in the arbitral
forum.

The plaintiffs’ claims for relief in this case go far beyond disputes over specific charges to particular patients. They have presented no evidence 1 that it will be more expensive to arbitrate their claims than it would be to litigate them. See Bradford v. Rockwell Semiconductor Sys., Inc., 238 F.3d 549, 556 (4th Cir. 2001); In re Currency Conversion Fee Antitrust Litig., 265 F. Supp.2d 385, 411 (S.D.N.Y. 2003). In the absence of this sort of evidence, the trial court properly declined to invalidate the arbitration provision.

Zachary Rosenberg, M.D., et al. v. BlueCross BlueShield of Tennessee, Inc., et al.
M2005-01070-COA-R9-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This appeal results from the trial court’s order granting a Motion to Compel Arbitration. Two doctors, Zachary Rosenberg, M.D. and Dewayne P. Darby, M.D., sued BlueCross BlueShield of Tennessee (“BCBST”) and the Tennessee Healthcare Network alleging breach of contract, seeking class action status, and requesting injunctive relief under the Tennessee Consumer Protection Act.  From the trial court’s order compelling arbitration, the doctors appeal. We affirm.

Alena Wharton v. Robert Wharton
W2005-02444-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge George R. Ellis

This case arises from post-divorce proceedings concerning custody of the parties’ minor child.  Mother/Appellant appeals from the order of the trial court granting primary residential custody to Father/Appellee. Specifically, Mother asserts that the trial court erred in disallowing testimony at the hearing. Father also raises an issue concerning whether the trial court erred in not making an award of retroactive child support.  Finding no error, we affirm.

Jerry D. Eckler v. Dr. Lee Allen, et al.
W2005-02501-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Karen R. Williams

This is a medical malpractice action in which Plaintiff alleges Defendant physician failed to obtain informed consent. The trial court awarded Defendants summary judgment upon finding that Plaintiff’s amended expert affidavit failed to comply with Tennessee Code Annotated § 29-26-115(a)(1) and that Plaintiff had failed to file the amended affidavit by the deadline imposed by the court.  We affirm summary judgment for Defendant under § 29-26-115(a)(1).
 

State of Tennessee, Department of Children's Services v. R.R.'s, In the Matter of R.R. Jr., (dob 11/17/01), K.P., (dob 4/26/00), and R.C., (dob 07/16/96), Children Under 18 Years of Age
E2006-02785-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Mindy N. Seals

Both parents appeal the Trial Court’s termination of their parental rights. We hold the State established by clear and convincing evidence statutory grounds for terminations, and the terminations were in the children’s best interests.

In Re: Estate of Eva Friedman Weisberger Philip J. Cooper v. Estate of Eva Friedman Weisberger
W2005-01847-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Robert S. Benham

This is a petition for attorney’s fees in probate. The petitioner attorney was retained to represent the estate in the underlying probate action. After his duties were essentially completed, the representatives of the estate hired new counsel for the estate. The petitioner attorney then filed a petition for attorney’s fees, asserting that there had been an oral contract for 3% of the estate’s assets.  The estate’s representatives objected, contending that there had been no agreement on attorney’s fees, and that the amount of the fee requested was excessive. After a hearing, the trial court determined that the parties had entered into the agreement as asserted by the attorney, and that the fee agreement was reasonable at the time it was made. Therefore, the trial court enforced the fee agreement and entered a judgment in favor of the petitioner. The estate now appeals. We affirm, concluding that the evidence does not preponderate against the trial court’s decision.

Rebecca Lee Bradshaw Owings v. William Albert Owings
W2005-01233-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge James F. Russell

This is a post-divorce petition to modify child support. When the parties divorced in 1995, the mother was granted custody of the parties’ two children, and the father was ordered to pay child support. The father was self-employed. In 2003, the mother filed the instant petition to increase the father’s child support obligation, alleging that the father’s income had increased since the divorce.  The mother sought to prove the amount of the father’s income by submitting into evidence his bank
statements for the previous three-year period, and calculating from that his average monthly deposits.  In response, the father filed an affidavit stating that he received less monthly income from his various business interests than the mother’s proof indicated. At trial, he relied on his own testimony, the testimony of his accountant, and the gross income reported on his federal income tax returns. After a trial, the trial court found the father’s testimony credible and concluded that the father’s income tax returns were the best evidence of his income. Based on the tax returns, the trial court held that the father’s level of income did not result in a significant variance in his child support obligation and consequently denied the mother’s petition. The mother now appeals. We vacate in part and modify in part, finding that the evidence preponderates against the trial court’s holding that the father’s income tax returns accurately reflected his income, as that term is defined in the Child Support Guidelines, and find a significant variance in his child support obligation based on the father’s pretrial affidavit and his testimony as to his income.

Donna Kay Brister Davis v. John W. Davis
W2005-01304-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Karen R. Williams

This is a divorce case. After ten years of marr iage, the parties separated. Subsequently, their marital home was destroyed in a fire. The husband then executed a quit claim deed on the home to the wife.  Consequently, the insurance proceeds on the home were paid to the wife, with none distributed to the husband. Both parties then filed for divorce. During the trial, the husband testified that the wife persuaded him to quit claim his interest in the home to her so that she could deal with the insurance company and sell the land on which the home stood. The husband sought a share of the insurance proceeds and the proceeds from the sale of the land. The wife alleged that the husband quit claimed his interest in the home to her as a gift. At the conclusion of the divorce proceedings, the trial court held, inter alia, that the home was a marital asset, despite the existence of the quit claim deed, and granted husband a share of the proceeds from the insurance and the sale of the land. The wife appeals. We affirm, finding that the evidence does not preponderate against the trial court’s conclusion that, by executing the quit claim deed the husband did not intend to make a gift of his interest in the property to the wife.

Donna Kay Brister Davis v. John W. Davis - Dissenting
W2005-01304-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Alan E. Highers

It is difficult for this member of the Court to believe that husband, who had been married twice before, did not understand the effect of a deed or that he was “duped” by wife into conveying his property. The more likely scenario is that husband was fearful that wife would gain an interest in his business and that he agreed to convey the residential property in exchange for her acquiescence not to seek such an interest.

Kristi Lyn (Jackson) Hollandsworth v. James Jeffrey Jackson
W2005-02091-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge R. Lee Moore Jr.

The trial court denied Father’s petition to modify custody of the parties’ child upon finding no material change of circumstances had occurred.  We affirm in part and remand.

BFS Retail & Commercial Operations v. Charles Smith
M2006-00163-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Mccoy

Herman Sawyer v. Memphis Education Association, et al.
W2006-00437-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Walter L. Evans

This case involves allegations of employer discrimination by an African-American male employee.  He claimed that he experienced race and gender discrimination because he was treated differently than his co-workers who were African-American females and a white male.  He also claimed to have been retaliated against after he filed various grievances and complaints against his employer, and he alleged outrageous conduct on the part of his employer and his supervisor, individually.  The trial court dismissed the case, and for the following reasons, we affirm.

TEG Enterprises v. Robert Miller
E2006-00551-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Richard E. Ladd

In this action for damages to personal property caused by an allegedly defective storage container, the Trial Court granted Judgment for plaintiffs. We affirm.

Donna Patrice Hamlett v. Maurice Givens
W2006-00270-COA-R3-JV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Christy R. Little

This case involves the legitimation of twin children and two subsequent actions to establish child support. In the first case, the parties agreed to attempt mediation of the issues, and it appears that a permanent parenting plan was agreed upon which provided for equal and joint custody of the
children. Because parenting time was split equally, neither party was to pay support to the other, but certain expenses were to be paid by each parent. The parties allegedly signed the agreement at mediation, and a formal memorandum was subsequently drawn up and presented to the court. The
court approved the formal memorandum and entered the parenting plan as an order of the court. In the second action, the mother claimed that because she had never signed the formal, typed version of the agreement, the parenting plan was void. The trial court agreed and set aside the mediated parenting plan. A new plan was entered by the court awarding primary custody to the mother and ordering the father to pay child support, which was calculated retroactively to the date of the children’s birth. The father timely appealed, and for the following reasons, we reverse and remand this case for further proceedings.

Lloyd W. Moore, et al., v. Dr. Ronald Teddleton, et ux.
W2005-02746-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor C. Creed McGinley

This case began as a breach of warranty and misrepresentation action against a husband and wife as sellers of property. The buyers had been sued in a separate action by adjoining landowners who disputed the boundary between their land and the property purchased by the buyers. After a judgment was entered against the buyers ordering them to convey a portion of the property to their neighbors, they filed suit against the sellers, who had since divorced. The trial court entered a default judgment against the wife after she failed to defend the case. The court then dismissed the husband from the case pursuant to Tenn. R. Civ. P. 19, finding that he had been an indispensable party to the previous boundary dispute lawsuit between the buyers and their neighbors, and that failure to join him in that lawsuit required that he be dismissed from this subsequent suit. The buyers timely filed their notice of appeal. The trial court subsequently entertained and granted the wife’s motion to set aside the default judgment and ultimately dismissed her from the suit as well, finding that she had also been an indispensable party to the boundary dispute action and was not joined in the lawsuit. For the following reasons, we vacate the trial court’s order which set aside the default judgment, reverse the trial court’s order dismissing the claims against the husband, and remand the cause for further proceedings.

Kelvin Sanders v. Homecomings Financial and Dyck & O'Neal Incorporated
W2006-00413-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Weber McCraw

This is a tort action. The defendant mortgage company serviced the mortgage loans on two homes owned by the plaintiff. After one of the plaintiff’s two homes burned down, the plaintiff received insurance proceeds for the destroyed home. The proceeds were mistakenly applied to the mortgage on the wrong property, and a deed of release was prepared on the intact home. Subsequently, the defendant mortgage company recorded an affidavit to reinstate the trust deed and the funds were paid to satisfy the mortgage on the destroyed home. The plaintiff filed suit against the defendant. Liberally construed, the plaintiff’s complaint asserted claims for deprivation of civil rights, tortious interference with business relationships, and intentional infliction of emotional distress. The trial court granted the defendant’s motion to dismiss, ruling that the plaintiff failed to properly serve process on the defendants and the plaintiff’s complaint failed to state a claim upon which relief could be granted. The plaintiff appeals. We dismiss the appeal, finding that the plaintiff has not appealed from a final judgment.

Nathaniel Anton Flowers and wife, Carmen Flowers., v. State of Tennessee
E2006-00580-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Vance W. Cheek

The Commissioner granted defendants summary judgment on a medical malpractice claim. On appeal, we dismiss the case on the failure of plaintiffs to timely file notice of appeal.

Bruce E. Shell, Executor of the Estate of Jeffrey Michael Murphy, v. Ginger Dills
E2005-02636-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor Billy Joe White

In a dispute over death benefits from employer, the trial court held designated beneficiary who later divorced decedent, was entitled to benefits rather than the estate.  We affirm.

In Re: Estate of Anne F. Threefoot, Anne W. Miller v. The United States
W2005-02942-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Donn Southern

Appellant, Executrix of Decedent’s Estate, filed a request with the Probate Court of Shelby County to authorize the post-mortem transfer of real property to a limited family partnership, which was allegedly established by oral contract entered by and between the Appellant and Decedent prior
to Decedent’s death.  The United States, Appellee, disputed the Appellant’s contention that there was an oral contract to form a partnership. The trial court found that the record did not support an enforceable oral contract by clear and convincing evidence. Appellant appeals. We affirm and remand.

State of Tennessee, Department of Children's Services, v. A.C., et al.
E2006-00747-COA-R3-PT
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Herbert A. Holcomb

The State of Tennessee, Department of Children’s Services (“DCS”) filed a petition to terminate the parental rights of A.C. (“Mother”) to her three children, L.A.L.R., K.M.C., and R.S.C. Following a trial, the Juvenile Court determined that there was clear and convincing evidence that grounds existed to terminate Mother’s parental rights pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1), (g)(2), and (g)(3). The Juvenile Court also determined that there was clear and convincing evidence that termination of Mother’s parental rights was in the children’s best interests. Mother appeals, claiming DCS failed to prove by clear and convincing evidence that grounds existed to terminate her parental rights. Mother also claims DCS failed to prove by clear and convincing evidence that termination of her parental rights would be in the best interests of the children. We affirm the Juvenile Court’s judgment.
 

In Re: The Estate of James Clifford Smith - Concurring
M2005-01410-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Tom E. Gray

When read together, 42 U.S.C.A. § 1396p(b)(4)(B) (West 2003) and Tenn. Code Ann. § 71-5-116(c) (2004) plainly permit the State of Tennessee to recover correctly paid medical assistance benefits from the estate of a recipient’s surviving spouse. However, I concur with the court’s conclusion that the property from which these benefits can be recovered is limited to property owned by the recipient at the time of his or her death that passed to the surviving spouse “through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.” 

In Re: The Estate of James Clifford Smith
M2005-01410-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Tom E. Gray

Estate appeals probate court’s determination that subject estate was liable to Bureau of Tennessee for Medicaid nursing home benefits correctly provided to a pre-deceased spouse. We reverse.

In Re. I.C.G., B.M.D., T.N.C., & T.L.C.
E2006-00746-COA-R3-PT
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Suzanne Bailey

In this appeal, S.L.B. (“Mother”) contends that the trial court erred in terminating her parental rights to four of her five children.  Mother does not challenge the propriety of the trial court’s order terminating her parental rights as to the fifth child. After careful review of the evidence and applicable authorities, we hold that the evidence does not preponderate against the trial court’s finding by clear and convincing evidence that termination of Mother’s parental rights was in the best interest of her children.  Therefore, we affirm.

State of Tennessee Department of Children's Services v. Patricia Danielle Stinson, et al.
W2006-00749-COA-R3-PT
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Danny Smith

This is a termination of parental rights case involving two minor children. The mother of both children and the father of one of the children appeal separately from the Order of the Juvenile Court of Hardin County terminating their respective parental rights. Both Appellants assert that the grounds for termination of their parental rights are not met by clear and convincing evidence in the record, and that termination of their parental rights is not in the best interest of the minor children. Because we find clear and convincing evidence in the record to support the trial court's findings, we affirm.

In Re: Estate of Spencer Brown - Dissenting
M2005-00864-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Allen W. Wallace

With great reluctance, I must part ways with the court regarding the dismissal of this will contest. Based on the facts of this case, I have concluded that the trial court erred by dismissing the will contest without first disposing of Don Brown’s motion to implead additional parties and Alton Brown’s petition to intervene.