COURT OF APPEALS OPINIONS

Larry P. Conway and Marilyn J. Conway v. Eastern Savings Bank, FSB
W2005-02919-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor D. J. Alissandratos

This is a petition to set aside a foreclosure sale. The plaintiffs, husband and wife, borrowed over $1.1 million from the defendant bank in order to buy the subject home. The plaintiffs later defaulted on the loan. The husband filed a petition in bankruptcy and listed the home as a part of his bankruptcy estate. The bank obtained relief from the automatic stay, accelerated the debt, and began foreclosure proceedings. The day before the scheduled foreclosure sale, the wife filed a petition in bankruptcy and listed the home as part of her bankruptcy estate. The foreclosure sale was postponed.  The bank obtained relief from the automatic stay in the wife’s bankruptcy case, and the foreclosure sale was conducted. The bank purchased the home for a credit bid of $750,000. Eight months later, the husband and wife filed this action for injunctive relief and to vacate the foreclosure sale. They alleged, among other things, inadequate consideration and lack of proper notice. The bank filed a motion for summary judgment, which was granted based in part on earlier findings by the bankruptcy court in the plaintiffs’ bankruptcy proceedings. The husband and wife now appeal, again arguing inadequate consideration and lack of notice. We affirm, finding that the plaintiffs failed to proffer sufficient evidence to create a genuine issue of fact for trial.

Volunteer Concrete Walls v. Community Trust & Banking Co., and Construction Consultants, Inc.
E2006-00602-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor Howell N. Peoples

In this breach of contract action, the Chancellor dismissed the Complaint and Counter-Complaint and Ordered plaintiff to remove the lien on the property where the construction of a wall was placed. We affirm.

Jeanne L. Schuett v. Egon Horst Schuett, Jr.
W2005-02482-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Rita L. Stotts

This is the second appeal of a divorce case involving alimony and child support. In the original divorce proceeding, we reversed the trial court’s holding that the increase in value of the wife’s inheritance was separate property, as well as its award of child support, based on a floating schedule.  The case was remanded for the trial court to recalculate the child support, equitably divide the appreciation in value of the inheritance, and then reconsider the division of the marital assets and the award of alimony and attorney’s fees. On remand, the trial court divided the appreciation in value of the inheritance, recalculated the child support obligation, and reaffirmed its remaining rulings. The husband now appeals for the second time, arguing that the trial court erred in awarding the wife alimony in solido and in not applying the new incomes shares child support guidelines. We affirm, finding no abuse of discretion in the award of alimony in solido, and holding that the husband cannot raise the revised child support guidelines for the first time on appeal.

Paul H. Martin v. Billy W. Long
M2005-02521-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge John W. Rollins

This case is based on the existence of an oral contract. The trial court determined that there was insufficient proof on damages to allow the plaintiff any recovery. We remand the case for findings about the existence and terms of the alleged oral contract.

Douglas Edward Corder v. Valerie Jean Corder - Dissenting
W2005-01711-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Alan E. Highers

I am in agreement with the majority’s well-written and well-reasoned opinion with one exception. I would not hold that the trial court’s requirement for the father to provide financial information to mother constitutes impermissible “support” after the children reach majority. I
otherwise concur in the holding.

Douglas Edward Corder v. Valerie Jean Corder
W2005-01711-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Special Judge George R. Ellis

This case involves a divorced parent’s obligation to support college-age children. After the divorce, the mother was the primary residential parent for the parties’ two children, who are now adults. In 1999, when both children were still minors, the father’s child support obligation was increased, and he was ordered to provide to the mother financial documents and financial information necessary to assist the children with their private high school and college expenses. The mother later filed a petition for contempt, arguing that the father failed to comply. At a 2001 contempt hearing, the mother asked that the father be held in contempt for, among other things, his failure to provide Mother with his 2000 tax returns for a financial aid application for the older child’s Ivy League college tuition. The trial court reserved the issue until further evidence could be presented. Soon after the hearing, in June 2001, the older child graduated from high school and the father unilaterally reduced his child support payments without seeking a modification of the trial court’s support order.  Four years went by without a court hearing, and both children reached majority. In 2005, the father filed a petition to resolve all outstanding matters and close the case. After a hearing, the trial court determined that the father was in contempt of court for his failure to provide the mother with the financial documents necessary to complete a financial aid application for the older child’s college education and awarded damages to Mother. The trial court further held that the father was not permitted to unilaterally reduce his child support payments when the older child graduated from high school and, consequently, assessed a child support arrearage against him. The father appeals. We affirm in part and reverse in part holding, inter alia, that once the parties’ child was emancipated, the trial court was without authority to require the father to provide financial documents to assist her in obtaining college financial aid.

Dennis Coker, on behalf of himself and all others similarly situated, v. The Purdue Pharama Company, et al.
W2005-02525-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Robert L. Childers

This is a class action involving federal preemption. The defendants own a series of patents for the prescription pain medication OxyContin®. In prior separate litigation between the defendants and a generic drug manufacturer, a federal district court in New York found that the defendants committed inequitable conduct before the United States Patent Office in procuring the patents. After this order was entered by the federal court in New York, the plaintiff filed the instant class action in Shelby County, Tennessee, on behalf of all consumers of OxyContin, alleging violations of the Tennessee Trade Practices Act, the Tennessee Consumer Protection Act, and common law monopolization. These state law claims were based on the defendants’ conduct before the United States Patent Office. The defendants removed the case to the federal district court for the Western
District of Tennessee. The district court remanded the case back to the Tennessee trial court, holding that the finding of inequitable conduct against the defendants by the federal court in New York operated as collateral estoppel on the issue regarding the federal patent laws. On remand, the defendants filed a motion for judgment on the pleadings based on federal preemption. The trial court granted the motion. We affirm, finding that the plaintiff’s antitrust and unfair competition claims, based on the defendants’ conduct before the Patent Office, are preempted by the federal patent laws.

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.

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).
 

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.

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.

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.

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

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.

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.

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.