COURT OF APPEALS OPINIONS

Cavalier Metal Corporation, et al. v. Finch & McBroom, et al.
W2004-01536-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Roy B. Morgan, Jr.

Appellants, who were represented in a lawsuit by Appellees, appeal the dismissal of their attorney malpractice suit against Appellees on the ground, among other things, that the Appellants did not file suit within the one-year statute of limitations for attorney malpractice actions. Finding no error, we affirm.

Gregory Fodness v. Newport and Cocke County Economic Development Commission, Inc.
E2004-01491-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

This case involves the interpretation of a portion of the Tennessee Public Records Act, Tenn. Code Ann. § 10-7-503. The issue presented is whether the statutory exemption set forth in Tenn. Code Ann. § 10-7-503(d)(1) is available to the Appellee which is a nonprofit joint municipal-county economic development commission. The trial court granted the commission’s motion for summary judgment, finding that the exemption was applicable and the commission did not have to provide its records to the Appellant. We hold that the commission is entitled to the statutory exemption, but that there is a genuine question of material fact as to whether the commission is the functional equivalent of a public agency. Accordingly, we vacate the judgment and remand for further proceedings consistent with this opinion.

Gregory Fodness v. Newport and Cocke County Economic Development Commission, Inc. - Dissenting
E2004-01491-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

I agree with the majority’s conclusion that the Commission is not entitled to summary judgment on the record presently before us. I disagree, however, with the majority’s rationale for that conclusion. Specifically, I disagree with the assertion that the public’s access to the Commission’s records depends upon whether, in the words of the majority, “[the Commission] is the functional equivalent of a governmental agency.” I believe this concept of “functional equivalen[cy],” as promulgated by the Supreme Court in Memphis Publ’g Co. v. Cherokee Children & Family Servs., Inc., 87 S.W.3d 67, 79 (Tenn. 2002), is not material to the issue now before us.

Patsy Smith, as next of kind and mother of Shawn Smith, v. State of Tennessee
E2004-0737-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Commissioner Vance W. Cheek, Jr.

Shawn Smith died of aspiration of gastric contents while a patient at the University of Tennessee Medical Center. Shawn Smith’s mother, Patsy Smith (“Plaintiff”), sued the State of Tennessee (“the State”). The case was transferred to the Claims Commission (“the Commission”). After trial, the Commission entered a judgment for the State holding, inter alia, that there was no breach of the standard of care. Plaintiff appeals claiming that the Commission erred in holding there was no breach of the standard of care, that the Commission erred in making certain factual findings, and that the Commission erred in refusing to find that the integrity of the medical record had been compromised. We affirm.
 

Kim Jones, d/b/a Kim's Kiddie Korner vs. State of Tennessee
E2004-00780-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Commissioner Vance W. Cheek, Jr.

Claimant sought reimbursement for child care under the Child Care Certificate Program. The Commissioner granted the State summary judgment on the grounds that the State was not contractually bound to reimburse claimant under the governmental immunity statutory scheme. On appeal, we affirm.

State of Tennessee Department of Human Services, ex rel. Tracy Ellis v. Malcolm Humes
W2004-00602-COA-R3-JV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Kenneth A. Turner

Appellant seeks relief, ostensibly under Tenn. R. Civ. P. 60.02, from final orders establishing paternity and setting child support obligations. Because Appellant failed to timely file his petition to establish fraud and/or misrepresentation and because the equities in this matter do not support the disestablishment of paternity, we affirm.

Warren E. Heatherly v. Campbell County Board of Education, et al.
E2004-02004-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor Billy Joe White

The plaintiff in this case was employed as the director of schools for Campbell County, Tennessee, under a contract of employment which was deemed by the defendant Campbell County Board of Education to have terminated after four years. The plaintiff sued the Board for breach of contract asserting that the contract contained a clause which provided that if the Board took no action by April 15 of each year of the contract to either extend or non-renew, the contract was automatically extended one year. The plaintiff contended that, in view of this clause and accompanying non-action by the Board, the contract did not terminate upon the expiration of four years, but rather extended beyond that period of time. The plaintiff alternatively asserted that, pursuant to a prior order of the trial court entered in a matter unrelated to the present case, he was entitled to an annual salary of not less than ten percent below that of the director of schools. The Board filed a motion for summary judgment requesting a ruling that the automatic extension clause of the contract was invalid and that the contract expired according to its terms. The Board's motion also requested that the trial court rule that, upon expiration of the contract, the plaintiff enjoys no rights to salary beyond those of a classroom teacher. The trial court denied the Board's motion with respect to the automatic extension clause, declaring the clause to be valid and enforceable; however, the Board's motion was granted with respect to the matter of the plaintiff's rights to salary granted by the court's prior order. We hold that the automatic extension clause is invalid, but that the plaintiff retains those rights granted him under the prior order of the trial court subject to further review by the trial court. Accordingly, we reverse the judgment of the trial court and remand.

Ora Aschbacher v. Peggy Ann Woods
M2003-02616-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Judge L. Craig Johnson

Aunt and niece agreed that aunt would convey her residence to niece in exchange for the promise of niece to look after her in her declining years. The years passed, niece provided care and attention for a period of time, but eventually ceased doing so. Aunt sought to rescind the deed for failure of consideration. The trial judge held that while the proof established a contract, the action was barred by the six-year statute of limitations. Reversed on a finding that the contract was a continuing obligation.

In re: J.M., D.O.B. 10/31/1994, Lee T. Myers v. Sandra Brown
W2003-02603-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Special Judge Herbert J. Lane

This is petition to modify custody. The mother and father of the minor child were never
married. In April 2002, when the child was seven years old, the trial court entered a consent order designating the mother as the primary residential parent of the child and giving the father residential time. During the summer of 2002, the parties became embroiled in a dispute over which school and in what grade the minor child should be enrolled for the upcoming school year. Against the father’s wishes, the mother took the child out of the third grade at a public school and enrolled her in the second grade at a private school. The father filed a petition for contempt, and the trial court ordered the mother to return the child to her class at the public school pending a final resolution of the father’s petition. The mother did not do so. The father then sought a change in custody. The trial court granted the father temporary custody pending a final resolution. The father retained temporary primary custody for the remainder of the school year. The trial court then held a hearing on the father’s request to be permanently designated primary residential parent. After a hearing, the trial court restored the mother as primary residential parent, determining that the circumstances did not warrant a change in designation as primary residential parent. The father now appeals. We affirm the trial court’s finding that the father did not show sufficient change in circumstances to remove mother as primary residential parent.
 

Robert Steven Johnson, v. Tennessee Farmers Mutual Insurance Company
E2004-00250-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Judge Dale C. Workman

The issue for jury resolution was whether Tennessee Farmers Mutual Insurance Company refused in bad faith to settle a damage suit against Johnson by Moore within his policy limits of $25,000, and exposed him to a final judgment of nearly $200,000.00. Johnson’s defense entirely focused on his asserted non-liability, not withstanding that Moore’s medical expenses exceeded $75,000, and his injuries were serious and permanently disabling, thus reasonably indicating that if Johnson was found to be negligent, the percentage of his fault necessarily would have to be minimal in light of his insurance limits. An unidentified van forced Johnson to crash head-on into Moore, and the jury allocated 50% of Moore’s damages to Johnson and 50% to the van. After this allocation was affirmed on appeal, Johnson sued Tennessee Farmers Mutual Insurance Company, claiming that Moore’s claim could have been settled for his policy limits. Tennessee Farmers Mutual Insurance Company presents a host of issues, beginning with the refusal of the court to direct a verdict, and continuing with complaints of the trial judge commenting on the evidence and refusing corrective jury instructions. The judgment is reversed for the latter two reasons. 

Robert Steven Johnson v. Tennessee Farmers Mutual Insurance Company - Dissenting
E2004-00250-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Dale C. Workman

I concur with the majority’s decision affirming the trial court’s denial of Tennessee Farmers Mutual Insurance Company’s motion for directed verdict, but I respectfully dissent from the majority’s decision reversing the jury’s verdict based on the jury charge and comments to the jury. I would affirm the jury verdict in favor of the Plaintiff, Robert Steven Johnson.

Robert Steven Johnson v. Tennessee Farmers Mutual Insurance Company - Concurring/Dissenting
E2004-00250-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Dale C. Workman

I agree with both Judge Inman’s and Judge Lee’s Opinions that Tennessee Farmers
Mutual Insurance Company was not entitled to a directed verdict in this case.

Alexander Ford-Mercury, Inc. v. City of Franklin, Tennessee Board of Zoning Appeals
M2004-00246-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Chancellor Donald P. Harris

This is a zoning case involving a free-standing sign. The plaintiff seeks to replace it with another sign which does not conform to a new sign ordinance. The plaintiff seeks the protection of the grandfather statute. The Chancellor held that the grandfather statute did not apply. We affirm.

In Re: R.D.F. and D.L.F.
M2003-02798-COA-R3-JV
Authoring Judge: Judge William H. Inman, Sr.
Trial Court Judge: Judge Donna A. Scott

The attorney for the petitioner was held in contempt for failing to appear as ordered and failing to advise the Juvenile Court of a Chancery action. We hold the evidence does not support a finding of criminal contempt.

Mary Jo Earl Headrick vs. William H. Headrick, Jr.
E2004-00730-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge William H. Russell

This appeal arises from a divorce in which the husband appeals the trial court's classification of separate and marital property as well as the division of these assets. The trial court reserved the issue of the wife's request for attorney's fees. Since all issues were not adjudicated by the final decree, the order was not final pursuant to Tenn. R. App. P. 3(a). Accordingly, we hold that this appeal is premature and dismiss and remand to the trial court.

In Re: A.Y.M. and A.N.W., Jr.
M2004-00313-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Barry Tatum

A.N.W., Sr., father, alone appeals the termination of his parental rights as to two children, A.Y.M. and A.N.W., Jr., the youngest of which had been removed from parental custody at birth due to the child's addiction to cocaine. A.N.W., Sr., challenges the trial court's findings that DCS exercised reasonable efforts to provide family services, that A.N.W., Sr., failed to substantially comply with permanency plan goals, that A.N.W., Sr., had abandoned these two children, and that the best interest of the children required termination of parental rights. We affirm the trial court's findings in all respects and remand the case for such other proceedings as may be necessary.

Randy Alan Barnes v. Amy Robertson Barnes
W2004-01426-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge George H. Brown

This is a divorce case. In contemplation of a divorce grounded on irreconcilable differences, Husband and Wife entered into a Marital Dissolution Agreement. Subsequently, Husband filed a complaint for divorce, and the complaint, inter alia, disavowed the prior executed Marital Dissolution Agreement. The divorce case proceeded to trial, and the trial court granted the divorce on the ground of inappropriate marital conduct and enforced the Marital Dissolution Agreement,  dividing the marital property and debt. Husband appeals. Because Husband-Appellant repudiated the Marital Dissolution Agreement prior to the entry of the trial court’s Final Decree of Divorce, there was no agreement between the parties, and the Marital Dissolution Agreement should not have been enforced. We reverse and remand.

State of Tennessee, ex rel., Brandi Shantika Taylor v. Cedrick Cortez Wilson
W2004-00275-COA-R3-JV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Kenneth A. Turner

Appellant challenges trial court’s dismissal of his petition, under Tennessee Rule of Civil Procedure 60.02(4), seeking to rescind his voluntary legitimation of child, modify custody, set aside paternity order and modify child support arrearage, based on results of DNA test that conclusively proves that he is not the father of the child. We reverse.

Sandra Kaye Kemp Parish, et al., v. Jerry Donald Kemp, et al.
W2003-01652-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Ron E. Harmon

This appeal arises out of a complaint filed by Appellants seeking to invalidate certain inter vivos
transfers made by Decedent as well as the Wills executed by Decedent while living with Appellees. After a hearing in which a jury received evidence from numerous witnesses and exhibits, Appellants sought a directed verdict on whether, as a matter of law, the burden to prove the validity of the Wills and the inter vivos transfers shifted to Appellees. The trial court denied this motion, and the jury returned a verdict in favor of Appellees, upholding Decedent’s Last Will and Testament and the inter vivos transfers. Review by this Court is sought by Appellants, and, for the following reasons, we reverse.
 

Bernadette Benson v. Nathan Berryman, et al.
W2004-00489-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge James F. Russell

This appeal arises out of an action by Appellant for a claim of negligence. After the close of
Appellant’s proof, Appellee moved for involuntary dismissal based on the lack of evidence
concerning the actions of the emergency vehicle involved in the automobile accident. The trial court granted the motion on this basis, and Appellant now seeks review by this Court. We affirm.
 

In Re F.R.R., III
M2004-02208-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Alfred L. Nations

This appeal involves the termination of a biological father’s rights to his non-marital child. When the child was almost five years old, his mother and her husband filed a petition in the Williamson County Juvenile Court seeking to terminate the biological father’s parental rights and to adopt the child. Following a bench trial, the juvenile court determined that the biological father had abandoned the child by willfully failing to visit him and that terminating the biological father’s parental rights would be in the child’s best interests. Accordingly, the court terminated the biological father’s parental rights and approved the adoption. The biological father has appealed.  We have determined that the record contains clear and convincing evidence that the biological father abandoned the child and that terminating the father’s parental rights would be in the child’s best interests.

Richard D. Vatt, et al. v. A.L. James d/b/a A.L. James Construction Company
E2004-00785-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Jacqueline E. Schulten

This case involves the alleged breach of a real estate sales contract. The plaintiffs argue that the defendant home builder is in breach of contract because he refused to sell them the house contracted for unless, in addition to the price stated in the contract, they paid him for costs attributed to changes in construction. None of these changes were implemented pursuant to written change orders as required under the contract. The builder countersued arguing that the changes for which he sought payment were agreed to orally after the contract was executed, that the written change order requirement of the contract was waived, and that the plaintiffs breached the contract by refusing to pay him the original contract price, plus the amount attributed to the changes. The trial court entered judgment in favor of the defendant. We affirm in part, reverse in part and remand.

Union County Education Association v. Union County Board of Education and Dr. James Pratt, Superintendent of the Union Cty Schools
E2004-00820-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Billy Joe White

We dismiss this appeal from a granting of summary judgment because the appeal was not from a final judgment and the issues are moot.

In Re: Estate of Billy F. Hawk, Jr.
E2004-00877-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor W. Frank Brown, III

This case involves a petition filed by the co-executors of the Estate of Billy F. Hawk, Jr. to approve a sale of real estate partially owned by the Estate. The issue presented is whether the trial court should have approved the private sale. The trial court held that the proposed sale was not in the best interest of all the beneficiaries of the Estate. The proposed buyer appeals. We hold that the trial court’s decision was not contrary to the preponderance of evidence, nor was it arbitrary or capricious, and therefore, affirm the trial court’s judgment.

Christa A. Avenell v. James Allen Gibson
E2004-01620-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

Christa A. Avenell,¹ sometimes referred to herein as “the plaintiff,” brought this action against James Allen Gibson (“the creditor”), seeking to recover funds taken out of the Avenells’ two joint accounts by their bank in response to a levy of execution. The trial court held that the 1988 amendment to Tenn. Code Ann. § 45-2-703 (2000) changed the law with respect to bank accounts held by individuals as tenants by the entirety; that Mrs. Avenell failed to prove she was entitled to the levied upon funds; and that the creditor was entitled to retain the funds paid into court by the Avenells’ bank. The plaintiff and her husband appeal. We reverse.