COURT OF APPEALS OPINIONS

In Re: J.J.C., D.M.C., S.J.B. vs. John Calabretta
W2002-01400-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
This is a termination of parental rights case. While the father was incarcerated for driving offenses, the mother was arrested for possession of drug paraphernalia. As a result, the parties' two young children were placed in state custody. When the father was released from prison, he contacted the state to enter into a plan of permanency. Subsequently, the state filed a petition to terminate the parental rights of both the mother and the father, alleging that they had failed to comply with the permanency plan, and that they abandoned the children by willfully failing to pay child support to the state. Almost a year later, the trial court conducted a trial in the matter. After the trial, the trial court entered an order terminating the parental rights of both the mother and the father. The father's parental rights were terminated based, in part, upon abandonment. Only the father has appealed from the trial court's decision. We reverse, finding that the evidence does not establish by clear and convincing evidence that the father's failure to make support payments was willful.

CH-01-1611-3
CH-01-1611-3
Trial Court Judge: D. J. Alissandratos

W2002-02228-COA-R3-CV
W2002-02228-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert L. Childers

W2002-03139-COA-R3-CV
W2002-03139-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Kay S. Robilio

W2003-00017-COA-R3-CV
W2003-00017-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Joseph H. Walker, III

Mohammad Rafieetary v. Maryam Khoshroo Rafieetary
W2003-00121-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: John R. Mccarroll, Jr.

W2003-00461-COA-R3-CV
W2003-00461-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Karen R. Williams

CH-02-1470-3
CH-02-1470-3
Trial Court Judge: D. J. Alissandratos

CH-00-0939-2
CH-00-0939-2
Trial Court Judge: Floyd Peete, Jr.

W2002-02676-COA-R3-CV
W2002-02676-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Walter L. Evans

Maria Louise Bernhard Kollasch Krahn v. Todd Michael
W2002-02931-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George H. Brown

Jeanne L. Schuett v. Egon Horst Schuett, Jr.
W2003-00337-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Rita L. Stotts

Thad Guerra v. Leonard Peeks
M2002-02580-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: John D. Wootten, Jr.
The permit for a sewage disposal system required that the driveway be constructed along the lot line and be no wider than ten feet. The plaintiffs, during the course of constructing a residence on their lot, did not locate the driveway along the lot line as required, and made it twenty-five feet wide. The system was disapproved by the State unless the plaintiffs obtained a duplicate area, i.e., procured by easement or purchase square footage equivalent to the footage utilized by the mis-located, widened driveway. The complaint was filed more than three years after the disapproval by the State, the date on when the cause of action accrued, and the action was dismissed. We affirm.

Richard Feldman v. Board of Medical Examiners
M2002-02784-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Irvin H. Kilcrease, Jr.
This is an appeal from a Chancery Court's review of an administrative hearing concerning violations of the Tennessee General Rules and Regulations Governing the Practice of Medicine for advertising. For the following reasons, we affirm the decision of the Tennessee Board of Medical Examiners.

RDM v. State of Tennessee, Department of Children's Services, In the Matter of: AGM
E2003-00330-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Judge Russell E. Simmons, Jr.

The Trial Court terminated parents’ parental rights. The father has appealed. We affirm the Trial
Court.

Hollingsworth, Inc. vs. Ruth E. Johnson
E2002-02561-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: William E. Lantrip
This appeal questions the holding of the Trial Court regarding the right of a corporation to claim bad debt credits for sales tax remitted relative to health club membership contracts which were subsequently defaulted upon. We affirm in part and reverse and dismiss in part.

Toyota Motor Credit Corporation, v. State of Tennessee, Department of Safety
M2003-00147-COA-R3-CV
Authoring Judge: Special Judge Alan E. Glenn
Trial Court Judge: Judge by Interchange Walter C. Kurtz

This case involves the seizure and forfeiture of a leased vehicle. The Department of Safety ("the Department") sent a notice of the forfeiture proceedings to the corporate owner/lessor at the address listed on the vehicle's certificate of title. Because the owner had moved two years previously and the Postal Service had ceased forwarding its mail, the unopened certified letter was returned to the Department marked "Not Deliverable as Addressed Unable to Forward." The Department took no further steps to locate the owner and summarily ordered the forfeiture of the vehicle. Upon learning of the forfeiture, the owner filed a petition for a stay and reconsideration, which the Department denied. The owner then filed a petition for review in the Chancery Court of Davidson County in which it challenged the adequacy of the notice procedure. The trial court ruled the notice procedure did not meet constitutional due process requirements under the circumstances, in which the corporate owner had a registered agent for service of process whose name and address were easily obtainable through the Secretary of State's Office. The Department appeals, arguing that due process does not require that it seek out a corporate owner that has failed to notify the Department of its change of address, as required by Tennessee Code Annotated section 55-4-131. We affirm the judgment of the trial court.

Marcia Ann Raines v. Jimmy Ray Raines
M2002-01952-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Clara W. Byrd

This is a divorce case involving the division of marital property. In 1988, the husband moved into the wife's house. The parties married in 1992 and remained married for ten years. During that time, the parties sold the wife's house and bought a new home with the proceeds. The new home was purchased in the names of both the husband and the wife. In 2002, the parties divorced. The trial court found that the parties' property had become so commingled that virtually none of it could be considered separate property, and divided the marital assets evenly. The trial court also allocated to the wife a larger portion of a marital debt to the wife's mother. From that decree, the wife now appeals. We affirm, finding that the evidence clearly supports the trial court's finding of commingling and transmutation of property, and finding no abuse of discretion in the trial court's allocation of the marital debt.

City of Whitwell, Tennessee, v. West Valley Water System, Inc.
M2002-02959-COA-R3-CV
Authoring Judge: Special Judge Alan E. Glenn
Trial Court Judge: Chancellor Jeffrey F. Stewart

This is a contract dispute between the plaintiff, an incorporated municipality, and the defendant, a nonprofit water systems corporation that supplied water to residents living outside the city limits. The parties entered into several agreements for the sale of potable treated water from the plaintiff to the defendant, the specific terms for which varied under each agreement. In particular, a 1981 agreement placed limits on the defendant's ability to assign its rights under the contract and required that the defendant purchase all its water requirements up to eight million gallons per month from the plaintiff, while an agreement executed in 1994 contained no minimum purchase requirement for the defendant and expressly provided that successors to the defendant, "whether the result of legal process, assignment, or otherwise," succeeded to the rights of the defendant under the contract. In 2002, the defendant entered into negotiations for the sale of its assets to a third party water company. In response, the plaintiff filed a petition for injunctive relief, alleging, inter alia, that the contract between the parties did not allow the defendant to assign its rights without the plaintiff's prior consent and that the City would suffer irreparable harm if deprived of the income generated by its water sale to the defendant. Following an injunction hearing and a subsequent trial, the trial court ruled, inter alia, that the 1994 contract superceded the previous agreements between the parties and the defendant was free to transfer its assets to the third party water company without the plaintiff's consent. The plaintiff appeals, arguing the 1994 contract was ultra vires because its mayor lacked the authority to execute it, there was no meeting of the minds to form a valid contract between the parties, and the trial court abused its discretion in dissolving the temporary injunction and denying the City's request for a permanent injunction. Having reviewed the entire record in this case, we affirm the judgment of the trial court.

In Re: C.L.J.
M2003-01949-COA-R9-JV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: W. Scott Rosenberg
This appeal involves a dispute over the custody of an eight-year-old boy. The child's parents never married and engaged in a protracted, bitter custody dispute until the father died of cancer in 2003. Immediately after the father's death, his sister and brother-in-law filed a petition in the Davidson County Juvenile Court seeking custody of the child. The child's mother opposed the petition, asserting that her custodial rights were superior to those of the boy's aunt and uncle. The juvenile court granted temporary custody of the child to his aunt and uncle pending a hearing. The court also determined that the child's mother could not gain custody of her son unless she proved that she would be able to adequately fulfill her parenting responsibilities. The juvenile court granted the mother's request for an interlocutory appeal, and this court granted the petition to determine whether the juvenile court applied the correct legal standard for custody disputes between a biological parent and non-parents. We have determined that the juvenile court has not employed the correct standard in this case and that the child's mother is entitled to have custody of her son unless the trial court determines that returning the child to his mother will expose him to a risk of substantial harm.

Chattanooga Publishing. v. Hamilton County Election Commission
E2003-00076-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Frank Brown, III
In this case involving the Tennessee Public Records Act, the issue is whether the Appellee Hamilton County Election Commission should have been compelled to release to the Appellant certain records relating to the Democratic primary election in Hamilton County held on May 7, 2002. The Trial Court held that although the documents were public records, they were also investigative records of the Tennessee Bureau of Investigation ("TBI") and thus subject to the exception found at T.C.A. 10-7-504(a)(2) of the Public Records Act. We find that the records at issue were not investigative records of the TBI at the time the request was made and that they should have been released to the Appellant Chattanooga Publishing Company ("CPC"), and accordingly reverse the Trial Court's judgment to the contrary. We affirm the Trial Court's refusal to award attorney's fees to CPC.

Ruthie Curbow v. James Stucki
M2001-02908-COA-R3-JV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Lonnie R. Hoover
In this case, Ruthie Ann Curbow appeals from a custody and support proceeding in Williamson County Juvenile Court. On the day of the hearing, parties and counsel appeared in camera for a pre-trial conference. Upon announcement of an apparent settlement in open court, Mother expressed disagreement with the terms of the settlement and a desire to preserve her right to appeal. The trial court determined that no settlement existed and trial on the merits proceeded with proof from all parties. The court entered an order awarding joint custody with Father as primary custodian under the statutory fitness comparison. Mother appeals. We affirm the judgment.

Sherry Hunter v. Jay Ura
M2002-02573-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Marietta M. Shipley
Administratrix of estate of deceased husband filed wrongful death action against defendants anesthesiologist and anesthesia services group. Jury returned a verdict for plaintiff, finding defendants at fault and awarding damages for medical and funeral expenses, and the pecuniary value of the life of the deceased including loss of consortium of wife and children. Defendants appeal, raising several procedural and evidentiary issues for consideration. We vacate and remand.

Shemeka Buford v. State
M2003-00176-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: C. L. Rogers
This is an action for damages against the Department of Children's Services of the State and one of its employees who allegedly strip-searched one of the plaintiff's young children, and attempted to strip-search another, while ostensibly seeking evidence of abuse allegedly inflicted by the mother. Process was never served on the employee. The claim was transferred to the Claims Commission. The plaintiff appeals, complaining of the dismissal of the employee, and of the transfer to the Commission. The judgment is affirmed.

Karen Scoggins vs. Larry Scoggins
E2002-02923-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Howell N. Peoples
Karen Thompson Scoggins ("Plaintiff") and Larry Browder Scoggins ("Defendant") were divorced in 2000. The divorce judgment ordered Defendant to use funds from his 401(k) plan to pay off certain marital debts and then to convey the remainder of the 401(k) to Plaintiff. Defendant did not do this. Instead, Defendant filed for bankruptcy, listed Plaintiff as a creditor, and was granted a discharge in bankruptcy. Plaintiff filed a complaint in Chancery Court ("Trial Court") seeking to enforce the divorce judgment. Defendant claimed the debt to Plaintiff was discharged in bankruptcy. The Chancery Court held that the discharge in bankruptcy does not bar Plaintiff from enforcing her rights in Defendant's 401(k) plan. Defendant appeals. We reverse and remand.