COURT OF APPEALS OPINIONS

In Re: D.D.K., D.M.M., and T.J.M., Jr.
M2003-01016-COA-R3-PT
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: L. Raymond Grimes
This appeal involves a petition filed by the Department of Children's Services to terminate the parental rights of Father to his two minor children. The trial court granted the petition and Father appeals the decision. Because we find the petition was improperly granted, we vacate and remand.

Nashville & Davidson County v. Margaret Hudson
M2002-02847-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Irvin H. Kilcrease, Jr.
This case involves an appeal from the trial court's grant of Appellee's motion for summary judgment. Appellee filed suit seeking to enjoin Appellant to remove vinyl siding that she had installed on her house in violation of a historic zoning ordinance. Appellant counter-complained alleging that the ordinance was void and unenforceable on grounds that the ordinance was unconstitutional and never properly adopted. Appellee subsequently moved for summary judgment which the trial court granted. We affirm.

Donald Britt v. Roxanne Howell
M2002-03070-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Robert L. Jones
The parties are adjacent commercial landowners of two story buildings with the second floors of their buildings being serviced by a common stairway between the two properties. The dispute involves use of the stairway and storage closets under and over the stairwell. The trial court held that the stairway was a common stairway, owned in equal undivided interests by the parties as was the upper floor storage area. The trial court further held that the lower floor storage area belonged exclusively to Appellees. We affirm the judgment of the trial court.

Eleonora Kogan. v. Tennessee Board of Dentistry
M2003-00291-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Irvin H. Kilcrease, Jr.
In this case we are asked to determine the type of notice required to be given a defendant in a contested case hearing before a state administrative agency. We determine that Tennessee Compilation of Administrative Rules and Regulations 13604-1-.06 applies and requires personal service, return receipt mail, or, in the event of evading service, personal service with a person at the parties' dwelling place. In the case at bar, service of notice of the new trial date was made through regular mail only. This method of service is insufficient. The decision of the Board of Dentistry is vacated, and the case is remanded.

Earl M. Shahan v. Franklin County
M2002-00725-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: John W. Rollins
This case involves a dispute between Franklin County and the developer and residents of a subdivision over the maintenance of roads in the subdivision. After the county declined the developer's public dedication of the roads and denied applications for building permits in the subdivision because of inadequate roads, the developer and several property owners filed separate suits against the county in the Chancery Court for Franklin County to determine the responsibility for maintaining the roads. The property owners also sought specific performance and damages from the developer. The trial court consolidated the cases and, following a bench trial, held that the county was not responsible for maintaining the roads. The trial court also directed the developer to bring the roads up to 1990 subdivision standards. The developer asserts on this appeal that there had been an implied public dedication of the roads and, therefore, that the county was responsible for maintaining them. For their part, two property owners assert that they are entitled to damages in addition to specific performance. We have determined that the trial court correctly determined that the roads were not public roads and that the property owners were not entitled to damages as well as specific performance. However, we have also determined that the trial court should have ordered the developer to bring the roads up to the county's current road standards.

Meaji Nisley Lockmiller v. Mark Lockmiller
E2002-02586-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: John B. Hagler, Jr.
In this divorce case, the parties contested, among other things, the issues of divorce and the custody of their minor children, Victoria Grace Lockmiller (DOB: August 27, 1994) and James Roman Lockmiller (DOB: November 24, 1998). Expressing its belief that Mark Douglas Lockmiller ("Father") would not tell "a knowing untruth," the trial court granted him a divorce from Meaji Lynn Nisley Lockmiller ("Mother") on the ground of inappropriate marital conduct and designated him as the primary residential parent of the parties' children. Wife appeals, contending that the evidence preponderates against the trial court's award of primary custody to Father. We affirm.

Sheila Kay Brown Jones v. Lloyd Kirk Jones
W2003-01676-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Daniel L. Smith

Mary Lee Alford, et al. v. Earl Ray Lumley, et al.
W2002-03051-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Lee Moore

This lawsuit emanates from a 1989 sale of land, which included a portion of land to which the seller did not have title. Two subsequent assignees of the original buyer filed a cause of action against the seller, seeking rescission or reformation of the 1989 transaction and alternate relief. The trial court awarded plaintiffs’ damages and declined to award equitable relief. We affirm.

In re: K.N.R., et al
M2003-01301-COA-R3-PT
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Max D. Fagan

In re: K.N.R., et al
M2003-01301-COA-R3-PT
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Max D. Fagan

Four Seasons Heating & Air Conditioning vs. Beers Skanska.
M2002-02783-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Carol A. Catalano
This is a breach of contract case. The defendant general contractor was hired to construct a building on a state college campus. The contractor hired the plaintiff subcontractor to perform substantial work on the job. During the course of the project, the subcontractor sought additional labor costs incurred in the project. This issue was not resolved. Later, the subcontractor sought from the contractor the retainage kept by the contractor. When the check was ready, the subcontractor sent its project manager to retrieve it. In order to get the check, the project manager was required by the contractor to sign a document releasing all claims between the contractor and the subcontractor. Later, the subcontractor filed this lawsuit, seeking the additional labor costs. The contractor filed a motion to dismiss, arguing that, by the project manager's signature on the release, the subcontractor waived its claim to the additional labor costs. The subcontractor argued that its project manager did not have the authority to bind the company to the release. After a hearing, the trial court dismissed the subcontractor's complaint. The subcontractor now appeals. We reverse, finding that the evidence was insufficient to establish as a matter of law that the project manager had actual or apparent authority to bind the subcontractor or to establish as a matter of law that the subcontractor ratified the release signed by the project manager.

Elaine H. Deathridge, et ux vs. Richard T. Barksdale
M2003-00032-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Marietta M. Shipley
Plaintiffs brought action against driver for damages arising from a rear-end automobile collision. Defendant raised affirmative defense of sudden emergency caused by a "phantom" non-party defendant's placing duct work in the roadway. The jury found that Defendant was not at fault. Plaintiffs appeal. We affirm.

Alan Reece Cunningham vs. Sylvia Delain Cunningham
M2002-01659-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Nolan R. Goolsby
The case involves the dissolution of a marriage of seven years. The trial court granted the divorce to the wife, divided the marital property between the parties in roughly equal proportions, found that the wife was not economically disadvantaged, and declined to award her any form of alimony. The wife appeals the court's alimony decision. We find the wife is entitled to alimony because, contrary to the trial court's finding, we believe the evidence shows that she is economically disadvantaged when compared to her former spouse. We modify the judgment to award her alimony in solido.

Alice Hale vs. Wayne Culpepper
M2002-01955-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: L. Craig Johnson
Following the death of a child's mother, the maternal grandmother filed a petition to establish grandparent visitation with her grandson. After a hearing where the trial court heard testimony and after an independent psychological report, the trial court awarded visitation to the grandmother. The father appeals, arguing that the evidence preponderates against the trial court's decision. Because the record contains no evidence of danger of substantial harm to the child, we reverse the decision of the trial court.

Erik Maasikas vs. Metropolitan Government of Nashville and Davidson County
M2002-02652-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Ellen Hobbs Lyle
Appellant, a former Metropolitan Nashville police officer, appeals an adverse judgment of the Chancery Court of Davidson County wherein that court affirmed the decision of the Metropolitan Civil Service Commission imposing a two-day suspension for a disciplinary infraction. We affirm the trial court.

Thomas G. Hyde vs. Ishikawa Gasket America
M2002-02653-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert E. Corlew, III
This case involves the breach of a contract when defendant refused to pay fees to which plaintiff claims an entitlement. The trial court below found that, under the facts of the case, the contract did not apply and, therefore, refused to award plaintiff its fees. Instead, the trial court awarded plaintiff a lesser amount under the theory of quantum meruit. Plaintiff timely appealed that decision and, for the reasons stated below, this Court reverses the ruling of the lower court.

Clement Bernard vs. Sumner Regional Health System
M2002-02962-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Tom E. Gray
This case was dismissed by the trial court on summary judgment for res judicata. Plaintiff had previously filed an action against the same defendant for actions of defendant surrounding a sexual harassment allegation. The previous action was for procurement of breach of contract and defamation. A final judgment has been rendered in that case. The current action is for failure to follow internal procedures resulting in breach of contract. The issue to be decided on appeal is whether these two cases involve the same "cause of action" necessary for a finding of res judicata. We find that they do involve the same "cause of action" and affirm the trial court's decision.

Lewis Langley vs. Sarah Langley
M2002-02278-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Marietta M. Shipley
Husband's proposed division of marital assets was adopted by the trial court. Wife received more than one-half of the assets, amounting to one and one-quarter million dollars, mostly liquid. Husband was nevertheless ordered to pay substantial alimony, both in solido and in futuro, together with attorney fees and certain expenses, including the maintenance of a three-quarter million dollar policy of life insurance with Wife as beneficiary. The alimony in solido award is affirmed, and the remaining awards are vacated.

Govindaswamy Nagarajan vs. Sandra Scheick
M2000-02323-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Ellen Hobbs Lyle
This appeal is an outgrowth of complaints filed by a group of Tennessee State University students regarding the performance of their physics professor. After the students complained to the university, the professor filed a pro se complaint in the Chancery Court for Davidson County against the Tennessee Board of Regents, the university, four university administrators, and twenty-four students, alleging breach of contract, defamation, intentional infliction of emotional distress, and discrimination based on age, race, and national origin. The trial court dismissed the professor's complaint in its entirety in response to motions to dismiss filed by the university defendants and a number of the student defendants. The professor then filed serial "motion[s] to vacate the order of dismissal for just cause." The trial court denied the first motion and, treating the second motion as a Tenn. R. Civ. P. 60.02(2) motion, also denied the second. On this appeal, the professor seeks to raise twelve issues regarding the merits of his claim. However, the only matter properly before us is the denial of his second "motion to vacate the order of dismissal for just cause." We have determined that the trial court properly denied this motion. We have also determined that this appeal is frivolous.

Thomas K. Bowers vs. Gutterguard of Tennessee
M2002-02877-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Hamilton V. Gayden, Jr.
The defendant challenges the Circuit Court's dismissal of an appeal from General Sessions Court for failure to comply with Davidson County Local Rule of Practice 20(b). The Local Rule required the appealing party to set the matter for trial no more than 45 days following the Circuit Court Clerk's receipt of the appeal. Though the defendant had filed a motion to set, an order setting the matter for trial had not been entered when the Circuit Judge dismissed the appeal and made the judgment of the General Sessions Court the final judgment. The defendant/appellant sought Rule 60.02(1) relief, claiming excusable neglect, which was denied. Based upon recent authority, determination of "excusable neglect" for Rule 60 purposes now requires an evaluation of three factors: whether the defaulting party's conduct was willful, whether there exists a meritorious defense, and whether the non-defaulting party has been prejudiced. We find the defendant's negligence was not willful and that the plaintiff suffered no prejudice; however, the record is silent concerning whether the defendant has a meritorious defense. Therefore, we reverse the trial court and remand the matter to the Circuit Court for further proceedings consistent with this ruling.

Kathy Clark vs. Randall McClung
M2003-00552-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Hamilton V. Gayden, Jr.
Due to plaintiffs' failure to file an alias summons within one year of the date the original complaint and summons were filed, the Circuit Court granted defendant's Motion to Dismiss for plaintiffs' failure to Comply with Rule 3, Tenn. R. Civ. P. Plaintiffs appealed asserting the error was due to the Circuit Court Clerk's refusal to file the alias summons and that the trial court abused its discretion in dismissing the case. We affirm the judgment of the trial court.

Dept of Children's Srvcs. vs. A.W.S. & E.S. In Re: R.T.S.
E2002-02227-COA-R3-JV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: William T. Denton
The State of Tennessee, Department of Children's Services ("DCS") filed a petition seeking to terminate the parental rights of A.W.S. ("Mother") and E.S. ("Father"), the biological parents of the minor child, R.T.S. ("the Child"). The Juvenile Court granted DCS' petition to terminate Mother's and Father's parental rights. Both Mother and Father appeal. We affirm.

Ronald Paul v. State
M2003-01244-COA-R9-CV
Appellant, a state prison inmate, filed a claim with the Tennessee Claims Commission against the State of Tennessee for the alleged malpractice of Dr. Paul Somers, a physician acting under contract with the Department of Corrections, to provide medical care for inmates. The Commission granted summary judgment on the basis that Dr. Somers was not a "state employee" within the meaning of Tennessee Code Annotated section 8-42-101(a)(3). We affirm the action of the Commission.

03-03-026-CC
03-03-026-CC
Trial Court Judge: A. Andrew Jackson

Jennifer Biscan v. Franklin Brown
M2001-02766-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol L. Soloman
After attending a party where alcohol was present, a minor intoxicated driver and minor guest passenger were involved in an automobile accident in which the passenger suffered serious injury. The passenger sued the driver and the adult host of the party. The jury awarded the minor guest passenger damages and allocated fault 70% to the minor intoxicated driver, 15% to the adult party host, and 15% to the minor guest passenger. The driver and the host appeal various rulings of the trial court. We affirm.