COURT OF APPEALS OPINIONS

Richard A. Jones and Richard A. Jones, Jr. v. Jody W. Henderson
W2003-02564-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert A. Lanier

This case arises from the discovery of an extramarital affair. The Appellants brought suit against
Appellee, seeking damages on theories of outrageous conduct and interference with a contract.
Appellee filed a motion to dismiss for failure to state a claim upon which relief can be granted. After a hearing on the motion, the trial court granted Appellee’s motion to dismiss and this appeal followed. For the following reasons, we affirm.

Helen Gleason v. Daniel P. Gleason, III
M2003-01580-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge J. S. Daniel

The trial court awarded Petitioner alimony arrearages of $7,250 plus interest. Respondent appeals, asserting the statute of limitations and the defense of laches. We modify the judgment of the trial court and remand.

Kenneth Snell v. City of Murfreesboro
M2003-02716-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Robert E. Corlew, III

Plaintiffs appeal from trial court's dismissal of complaint for failure to state a cause of action. Plaintiffs allege that trial court erred in finding that Plaintiffs had no standing to challenge annexation ordinance passed by City of Murfreesboro. Finding that the trial court was correct in determining that Plaintiffs were not entitled to challenge the annexation ordinance under Tennessee declaratory judgment statute, we affirm.

Michael Mitchell v. William Henegar, D/B/A Henegar Realty Company; and Geneva Brown, individually and as Personal Representative of the Estate of Fred Brown
E2003-01885-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge William E. Lantrip

Plaintiff sought rescission of a purchase of real property, and damages pursuant to the Consumer Protection Act. The Trial Court held plaintiff failed to carry his burden of proof on the issues presented. On appeal, we affirm.

Luke N. Gibson, et al. v. Chrysler Corporation, et al.
W2002-03134-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Kay S. Robilio

This is an appeal from a judgment entered on a jury verdict for Defendant/Appellee. Plaintiff/Appellant, a minor, was allegedly injured when an integrated car seat in a vehicle manufactured and sold by Defendant/Appellee malfunctioned. Plaintiff/Appellant asserts that: (1) the jurors conducted unauthorized experimentation with certain exhibits, which constituted extraneous prejudicial information under Tenn. R. Evid. 606(b); (2) that there is no material evidence on which the jury could have based its verdict; (3) that the trial judge failed to properly perform her duty as thirteenth juror; (4) that the trial court erred in allowing an expert to testify outside the scope of his expertise in violation of McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997); and (5) that the trial court erred, either under Tenn. R. Evid. 702 and 704 or on the theory of judicial estoppel, in excluding a portion of the testimony of a second expert. We affirm.

The City of Humboldt, et al. v. J.R. McKnight, et al.
M2002-02639-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This lawsuit is about the operation and funding of public schools educating the children in Gibson County. Since 1981 the county has not operated a county school system, and all K-12 students have been in schools operated by the municipal and special school systems. The county ceased operating schools when a 1981 Private Act created the Gibson County Special School District. This arrangement was ratified by a 2002 Public Act stating that where all K-12 students are eligible to be served by city and special school systems, the county is not required to operate a separate county school system or have a county board of education. The trial court held that the 2002 Act was unconstitutional as special legislation and that the 1981 Act, though constitutional, was illegal. It ordered the dissolution of the Gibson County Special School District and that the county undertake operation of the schools not included in the other municipal or special school systems within the county. The court further found that the county was required to levy a countywide property tax to fund the local share of education costs and divide the proceeds among all school systems in the county. We hold that the 2002 Act does not violate Article XI, Section 8 of the Tennessee Constitution and, consequently, there is no obligation for the county to operate a county school system. We also conclude that the facts do not establish any disparity of educational opportunity among the school systems in the county and, consequently, the principles and holdings in the Small Schools cases do not apply to require a specific organizational structure and do not preclude the method used in Gibson County. Finally, we conclude the county is not required to levy a countywide property tax for schools. Accordingly, we reverse the trial court's judgment.

Sheryl Heggs v. Wilson Inn Nashville-Elm Hill, Inc.
M2003-00919-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Thomas W. Brothers

This appeal involves a dispute between a hotel and a guest who slipped on a wet tile floor as she was making her way to an elevator on one of the hotel's guest floors. The guest filed a negligence action against the hotel in the Circuit Court for Davidson County, and the hotel answered and filed a motion for summary judgment. The trial court granted the hotel's motion after determining, as a matter of law, that the hotel had satisfied its duty to the guest by setting out a yellow "wet floor" warning sign and that the guest was fifty percent or more at fault for her injuries. The guest has appealed. We have determined that the hotel has not demonstrated that it is entitled to a judgment as a matter of law and, therefore, we vacate the summary judgment.

Susan Chales and James Charles v. Ruth Latham and Ralph Latham
E2003-00852-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge W. Dale Young

In a dispute over an easement, the Trial Court awarded damages to plaintiffs for interference with use of easement, nuisance and punitive damages. On appeal, we affirm the award of compensatory damages, but vacate the award of punitive damages and remand to assess punitive damages in accordance with Hodges v. Toof & Co., 833.S.W.2d 896 (Tenn. 1992).

Donnie Wayne Johnson, Jr., v. City Roofing Company
W2003-01852-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge William B. Acree

This case is an appeal from an order granting Appellee’s motion for summary judgment. Appellant argues, as he did at trial, that this case involves genuine issues of material fact, rendering summary judgment inappropriate for this action. For the following reasons, we affirm.

St. Paul Reinsurance Co., LTD, v. Robert Williams and Sherrod Jackson, Individually and D/B/A Pure Passion, Pure Passion, Inc. and Eugene Pugh
W2003-00473-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Walter L. Evans

This case arises from events surrounding the shooting death of Decedent, Appellant’s son. Appellee filed a motion for summary judgment claiming its policy of insurance did not apply to the
circumstances of this case because Appellant’s claim was specifically excluded from the insurance policy. The trial court granted Appellee’s motion for summary judgment and, for the following reasons, we affirm.

Rocky Garner v. Phil Breeden & Associates
M2002-03103-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Carol L. McCoy

Appellant sued Appellee for breach of contract or in the alternative for quantum meruit value of services rendered. At the conclusion of Plaintiff's proof the trial court sustained a motion for a directed verdict on behalf of Defendant as to the quantum meruit claim and further sustained that motion on a large portion of the contract claim. As to remaining portions of the contract claim the motion for a directed verdict was overruled, and Plaintiff voluntarily dismissed the remaining claims without prejudice. We hold that the trial court erred in granting the motion for a directed verdict as to the contract case but correctly granted a directed verdict as to quantum meruit. The judgment of the trial court is affirmed in part, reversed in part and remanded for trial on the contract issues.

Robert Kendall Broadbent v. Shari Katherine Langhi Broadbent
M2003-00583-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Marietta M. Shipley

This appeal involves a dispute over the responsibility for investment losses incurred by a spouse before and during the parties’ marriage. After only one year of marriage, the husband filed suit for divorce in the Circuit Court for Davidson County. The wife counterclaimed for divorce and, among other relief, sought alimony in solido to offset the loss of her separate property resulting from the husband’s aggressive stock market trading. Following a bench trial, the trial court granted the wife a divorce on the ground of inappropriate marital conduct and then, employing a comparative fault analysis, determined that the husband should pay the wife $51,500 in alimony in solido to reimburse her for her separate property lost in the stock market. The husband has appealed. We have determined that the wife is not entitled to be reimbursed for the losses caused by the husband’s investments.
 

Jamie Edward Hines v. Terrell Lynn Simms
M2003-01459-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Muriel Robinson

This appeal involves a custody dispute triggered by a paternity action. The trial court fashioned a permanent parenting plan which named Father the primary residential parent during the school year and Mother the primary residential parent during summer vacation. Mother appeals. We affirm the judgment of the trial court.

Bobbi Jo Fisher v. Tennessee Insurance Company - Concurring
E2004-00189-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Harold Wimberly

While I concur in the majority’s decision to reverse and dismiss this case, I feel it necessary to concur separately to state my understanding that our holding in this case is limited to an insured’s claim for collision damage coverage only. I believe there may be public policy considerations that would need to be considered in a case involving liability, as opposed to collision, coverage. That question is not now before us, and I do not believe those public policy considerations are applicable in a case such as the one now before us involving an insurance claim solely for collision damage coverage. I, therefore, concur in the majority’s decision to reverse and dismiss.

Bobbi Jo Fisher v. Tennessee Insurance Company
E2004-00189-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Judge Harold Wimberly

The defendant issued a policy of automobile insurance to the plaintiff which provided coverage for liability claims and for collision damage, but each of these insuring agreements was subject to an exclusion of coverage if the insured automobile was being operated by a non-licensed driver at the time of the accident giving rise to the claim. The plaintiff loaned her Pontiac to a non-licensed driver under the mistaken belief that he was properly licensed. The trial judge found that the plaintiff reasonably believed that her permittee had a valid driver’s license and allowed recovery. We reverse and dismiss.
 

Kyle Ann Wiltse v. Christopher Allen Wiltse
W2002-03132-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge James F. Russell

This case involves issues arising out of the parties’ divorce. The trial court divided the parties’ marital assets, awarded Appellee alimony in futuro, ordered Appellant to pay Appellee’s attorney’s fees, and ordered Appellant to pay for Appellee’s health insurance premiums. For the following reasons, we affirm in part, modify in part, and remand for any further proceedings.
 

Kenneth A. Brasel, Sr., v. John Stanley Brasel, Sr. et al.
W2003-02965-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge John R. McCarroll, Jr.

This is a child custody case. Father/Appellant appeals from the trial court’s Order, which
denied Father/Appellant’s Petition to change custody from the minor child’s grandparents to Father. Finding that there is not a material change in circumstances to warrant a change of custody and that Father is not entitled to the Superior Rights Doctrine, we affirm.
 

John Whitney Evans III v. Dinah Petree Evans
M2002-02947-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Jim T. Hamilton

In this appeal, Husband seeks to be relieved from his obligation to pay alimony in futuro to his former wife. In support of his request, Husband asserts that his former wife’s cohabitation with another man terminated his obligation since Wife was being supported by that third person and was in no need of alimony. The trial court denied Husband’s petition finding Wife was not living with a third person, had rebutted presumption that she does not need the alimony, and that no material change in circumstances had occurred to warrant modification of the initial award of alimony. We affirm those holdings. However, we reverse the trial court’s award of attorney’s fees to Wife.
 

John Whitney Evans III v. Dinah Petree Evans - Concurring
M2002-02947-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.

I concur with the results of the court’s opinion. However, I have elected to file this separate
opinion because I cannot concur with several parts of the court’s analysis.
 

Eloris Williams Presley v. Charles Ray Sattler
M2002-02868-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Carol L. Soloman

This appeal involves a former wife’s efforts to recover damages from her former husband for misdeeds during their marriage and following their divorce. Approximately ten years after the parties’ divorce in Louisiana, the former wife filed a pro se complaint in the Circuit Court for Davidson County seeking to recover $10,000,000 from her former husband for “eight years of trauma and distress, abuse and torture.” The former husband filed a pro se “exception” to the trial court’s subject matter jurisdiction. The trial court dismissed the complaint, and the former wife has appealed. We affirm the dismissal of the complaint.
 

Mary Finchum, individually and as Next of Kin to William Finchum, Deceased, v. Ace, USA, individually and as successor to CIGNA Ins Co., et al.
E2003-00982-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Wheeler A. Rosenbalm

The Trial Court dismissed the Complaint on a Motion filed pursuant to Tenn. R. Civ. P. 12.02(6). We vacate and remand because the Motion to Dismiss did not comply with the Rules of Civil Procedure.
 

Mary Finchum, individually and as Next of Kin to William Finchum, Deceased v. ACE, USA, individually and as successor to Cigna Insurance Co, et al.- Dissenting
E2003-00982-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.

The majority opinion concludes that the defendants’ motion to dismiss is deficient. I agree.
In Willis v. Tennessee Dep’t of Corr., 113 S.W.3d 706 (Tenn. 2003), the Supreme Court opined that Tenn. R. Civ. P. 12.06(6), construed in light of Tenn. R. Civ. P. 7.02(1), requires that a motion filed pursuant to 12.06(6) must state “why the plaintiff has failed to state a claim for which relief can be granted.” Willis, 113 S.W.3d at 709 n.2 (emphasis added). For example, in the instant case, the motion should have recited, on its face, that (1) the motion was filed pursuant to Tenn. R. Civ. P. 12.06(6), and (2) that the complaint fails to state a claim upon which relief can be granted “in that the claim is for breach of contract but fails to reflect a promise by any of the defendants,” or words to this effect. Having said all of this, I would hasten to add that I do not believe Willis requires that we vacate the trial court’s judgment in the case at bar.

Joe Rankin and wife, Brenda Rankin v. Lloyd Smith
W2003-00992-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor J. Steven Stafford

This is a breach of contract case. The plaintiffs entered into a contract to sell their home and
farm to the defendant. On the scheduled closing date, the defendant refused to purchase the property. The plaintiffs sold the property to a third party for substantially less than the amount the defendant had agreed to pay. In April 2002, the plaintiffs filed the instant lawsuit against the defendant for breach of contract. The defendant argued that he was fraudulently induced into signing the contract, because the parties had a verbal understanding that the contract would not be enforced. The trial court granted summary judgment in favor of the plaintiffs. The defendant now appeals. We affirm, finding that the defendant alleges promissory fraud, that evidence of the parties’ verbal agreement is inadmissible under the parol evidence rule, and that the evidence submitted by the defendant does not create a genuine issue of material fact regarding fraudulent inducement.

Tammy Barker v. Vernon Barker
W2003-01989-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor D. J. Alissandratos

This is a divorce case. The parties were married for three years prior to their separation, and two children were born during the marriage. The mother filed a petition for divorce, and the father filed a counterclaim for divorce. After a bench trial, the trial court entered a final decree of divorce and a parenting plan. In the plan, the father was permitted supervised visitation with the children, but was required to undergo a psychological evaluation in order to continue that visitation. The plan also provided that the children’s guardian ad litem would be the “binding arbitrator” on all matters involving the father’s visitation. The father now appeals, claiming that the trial court erred in requiring him to undergo a psychological evaluation and in appointing the guardian ad litem as the arbitrator on matters involving his visitation schedule. Because the father did not properly object to the issues raised on appeal, they are deemed to be waived. Therefore, we affirm.

James A. Drake, Jr. v. JPS Elastomerics Corp.
W2003-01579-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor D. J. Alissandratos

This case involves the breach of an employment compensation contract. Under the sales employee’s compensation plan with his employer, he was to earn extra commission for any sales that exceeded his annual quota. In the compensation plan, the employer reserved the right to pay only the standard commission on “windfall” sales. For the fiscal year at issue, the sales employee exceeded his quota. The employer invoked the windfall provision of his compensation plan and paid him only the standard commission on the sales over his quota. The sales employee sued his employer, arguing that he was entitled to the extra commission on the sales over his quota. On cross-motions for summary judgment, the judge ruled in favor of the plaintiff sales employee. On appeal, the defendant employer argues that the “windfall provision” applies to all sales that were unbudgeted or unforecast and that the plaintiff sales employee’s excess sales fall in that category. We hold that the defendant employer’s interpretation conflicts with the plain meaning of the contract, and affirm the decision of the trial court.