COURT OF APPEALS OPINIONS

Gurkin'S Drive-In Market v. Alcohol And Licensing
CH-01-2581-1
Trial Court Judge: Walter L. Evans

In Re: Shiann Horner
E2002-00588-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Thomas J. Wright
This appeal focuses on the trial court's guardianship decree regarding Shiann Marie Horner (DOB: November 18, 1996) ("the child"). When the child's mother died, she moved in with her father, Charles E. Horner ("the father"), in Greene County. Following the father's incarceration as a result of his second arrest for driving under the influence of an intoxicant ("DUI"), the child started living full-time with her weekend caregivers, Ralph L. Hensley and Diana Hensley ("the Greeneville couple"), a married couple who are not related to the child by blood or marriage. The child's maternal aunt, Lori Lynn Kopsi, a resident of Menominee, Michigan ("the Michigan aunt"), filed a petition seeking custody of the child. The Greeneville couple responded with their own petition for custody. Following a hearing on the competing petitions, the trial court determined that it was in the child's best interest that the Greeneville couple should serve as the child's guardian. The Michigan aunt appeals, challenging the trial court's judgment. We affirm.

State v. Travis Thompson
M2001-02354-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Ellen Hobbs Lyle
This case involves the Tennessee Health Club Act. The defendant/appellees purchased a health club and failed to obtain a certificate of registration. Three months later, the health club owners obtained a certificate of registration. The State of Tennessee, through the Attorney General, filed a lawsuit against the health club owners alleging violations of the Tennessee Consumer Protection Act and the Health Club Act seeking injunctive relief, substantial fines, and several hundred thousand dollars in restitution. The trial court granted partial summary judgment to the health club owners, holding that the remedies under the Health Club Act were available only to consumers, not the State, and that there was no proof of an "ascertainable loss" under the Tennessee Consumer Protection Act. The trial court also granted the health club owners' request for attorney's fees and costs. The State appeals. We affirm in part and reverse in part, finding, inter alia, that the State may seek remedies under the Health Club Act on behalf of consumers, affirming the trial court's ruling that proof of an ascertainable loss is required, and affirming the award of attorney's fees.

State v. All Parties with an Interest in the Property /Map 158, Parcel 34
M2002-01137-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Ellen Hobbs Lyle
This is a case involving the proposed disinterment of Indian burial grounds. The Appellants urge this Court to consider numerous issues. Having determined that the only issue properly before this Court is the propriety of the trial court's denial of Appellants' motion to intervene, we affirm the trial court's denial of intervention.

James Corbin v. Tom Lange Co.
M2002-01162-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Ellen Hobbs Lyle
This case involves a noncompetition agreement. An employee signed a noncompete agreement when he began working for an employer. The employee resigned and began working for a competitor of the employer. The employee sought a declaratory judgment that the noncompete agreement was unenforceable. Approximately eighteen months into the two-year noncompetition period, the trial court issued a ruling that the agreement was not enforceable. The employer appeals. We affirm, finding that neither the training provided to the employee nor the employee's relationship with the employer's customers created a business interest that warranted the protection of a noncompetition agreement.

Donald Curlee v. State Auto Mutual
M2002-01627-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Marietta M. Shipley
This case involves the interpretation of a permit bond. The contractor and a surety entered into a permit bond relating to work the contractor was to perform for a metropolitan government. The bond was written in favor of the metropolitan government as well as property owners whose property was damaged due to the contractor's violation of certain metropolitan government codes. In the underlying lawsuit, a property owner was awarded a judgment against the contractor. In this lawsuit, the property owner sued the surety for failing to pay the judgment against the contractor. The trial court granted the surety's motion to dismiss, finding that there was no contractual relationship between the property owner and the surety on which a claim could be based, nor was the property owner a third-party beneficiary of the permit bond. The property owner appeals. We review the trial court's decision as a motion for summary judgment and affirm, finding that the record does not show that the property owner was among the parties protected under the language of the Bond.

Daniel Bills v. Conseco Insurance
M2002-01906-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Tom E. Gray

Daniel Bills v. Conseco Insurance
M2002-01906-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Tom E. Gray

R.P. Industries v. United States Aluminum
M2002-00897-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Carol L. Soloman
This appeal arises from a dispute over an agreement to issue joint checks. The trial court found that the parties had an agreement whereby the general contractor was to issue checks jointly payable to the sub-contractor and the materials supplier, which the general contractor breached when it issued single payee checks. The court awarded the materials supplier $17,500.00. The parties raise two issues on appeal. For the following reasons, we affirm in part, reverse in part, and remand.

Randall Cook v. Frank Hanner
M2002-01083-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Ross H. Hicks
Robertson County -This case involves allegations of an improper verdict form and jury instructions. As Appellants failed to make timely objections concerning these issues, and failed to file a motion for a new trial based on these perceived irregularities, we affirm the judgment of the trial court.

E2002-01156-COA-R3-CV
E2002-01156-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Dale C. Workman

Ginger Sweeton v. Angela Orange, et al.
M2002-00211-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Jeffrey F. Stewart
This is a dispute between two adjoining property owners concerning the location of the common boundary between their respective properties. A survey of the line indicates that the land in question is property of Appellees. Appellant contends that, due to actions taken by her predecessors in interest, she has claim to the property by virtue of adverse possession. The trial court found that the land in question, with the exception of certain buildings used for storage, is the property of Appellees. Appellant appeals. We affirm.

Ethan Rider v. Laurie Rider
M2002-00556-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Russell Heldman
This appeal, from a grant of summary judgment, involves the imposition of a constructive trust on life insurance proceeds. The lower court imposed the constructive trust, for the benefit of Father's son from his first marriage, on proceeds distributed to Father's second wife. The basis for the constructive trust arose from Father's obligation, under the decree of divorce dissolving his first marriage, to maintain life insurance benefitting his minor son. For the following reasons, we reverse the ruling of the lower court.

Brian Bacardi v. Bd. of Registration in Podiatry
M2002-00558-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Ellen Hobbs Lyle
This is an appeal from a final order, upholding the validity of a settlement agreement. Appellant, a podiatrist, entered into a settlement agreement with the Tennessee Board of Registration in Podiatry. The settlement agreement contained a provision whereby Appellant voluntarily relinquished his right to reapply for a podiatry license in Tennessee. Upon discovering that loss of the right to apply for license barred participation in all federal health care programs, Appellant sought to have the provision excised from the agreement on the basis that the Board had no statutory authority to mandate a bar on application for a license. The trial court upheld the validity of the settlement agreement. We affirm.

Jose & Gioconda Matus, et al v. Nashville General Hospital
M2002-01407-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Carol L. Soloman
This is a medical malpractice case against a municipal hospital pursuant to the Governmental Tort Liability Act. Originally, the defendants included a private physician and two nurse employees of the hospital. Plaintiffs alleged, among other things, that the two nurse employees were partially at fault, and their negligence attributed to the hospital was a cause of the damages alleged. Prior to the trial date, a settlement was reached by the plaintiffs with the private physician and the two nurse employees. Over defendants' objection, plaintiffs were allowed by motion on the eve of trial to amend their complaint to allege that previously un-named nurse employees of the hospital were negligent, which contributed to the damages alleged for which the hospital was responsible. Defendants also filed a motion for summary judgment asserting that, because the two nurse employees were no longer liable and thus their liability could not be attributed to the hospital, the hospital was entitled to summary judgment because there was no allegation of negligence on the part of other employees of the hospital. The trial court granted plaintiffs' motion to amend the complaint and denied the hospital's motion for summary judgment. At the conclusion of a nonjury trial, the hospital was assigned a percentage of fault for the damages incurred, and judgment was entered accordingly. Hospital appeals. We affirm.

Estate of John Acuff v. Brenda Olinger
M2002-01629-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Jeffrey F. Stewart
This is an appeal from the granting of appellee's motion for discretionary costs. For the following reasons, we find that the motion was not timely filed and reverse the court below.

State v. Delinquent Taxpayers
M2002-00718-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Ellen Hobbs Lyle
This case involves the question of whether the statutory right of redemption enjoyed by the owner of property sold to recover delinquent taxes may be conveyed to a third party who may then exercise that right and redeem the property. We affirm the decision of the trial court, finding that the statutory right of redemption may be conveyed.

Shirley Barlow v. Jarvis Barlow
M1999-00749-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Clara W. Byrd
These parties were married for twenty-seven years before the wife abandoned the marriage and sought a divorce which was uncontested. She was awarded one-half of the net marital estate, and rehabilitative alimony. Wife appeals, claiming that because of her illness she is entitled to more than 50 percent of the marital property, is entitled to alimony in futuro rather than rehabilitative alimony, and is entitled to attorney fees. We affirm the trial court's judgment, except as to the period of spousal support, which is extended from three years to five years. We also remand this case to the trial court for a determination of whether the post-judgment facts alleged by the husband warrant a further modification of the alimony award.

Ethel Carmical v. Mary Jane Kilpatrick
M2002-00613-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Timothy L. Easter
This is a challenge to an award of attorney's fees in a partition action. The testatrix left 500 acres of land in Perry County to her then-living heirs. Some of the heirs filed this action to partition and sell the land. After several years, the land finally sold. The trial court awarded 10% of the sale proceeds, approximately $100,000, as attorney's fees for the three attorneys who provided legal services in the partition action. One of the heirs now appeals that award, claiming that it was excessive. The appellant filed neither a transcript of the proceedings nor a statement of the evidence pursuant to Tennessee Rule of Appellate Procedure 24(c). We must affirm the trial court's award, because the issues raised by the appellant would require a review of the proceedings below, and without a transcript of the trial proceedings or a statement of the evidence, we must assume that the trial court properly exercised its discretion in light of the evidence.

Jesse Fitts v. Donald Arms, d/b/a McMinnville Orthopedic Clinic
M2002-00655-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Charles D. Haston, Sr.
This appeal arises from a medical malpractice proceeding. The trial court granted summary judgment for both physicians, finding that Aapellants' expert affidavits failed to raise a genuine issue of material fact. For the following reasons, we affirm the ruling of the trial court.

Janis Turner v. Andre Yovanovitch
M2002-01164-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Muriel Robinson
This is a child support modification case. The father's net monthly income was in excess of $10,000 per month. The trial court, stating that it was in the child's best interest and welfare, included father's income in excess of $10,000 in calculating his child support obligation. On appeal, the father asserts that the mother failed to prove by a preponderance of the evidence that the child support based on income greater than $10,000 per month was reasonably necessary to provide for the needs for the minor child, as contemplated in Tennessee Code Annotated section 36-5-101(e)(1)(B). We affirm.

Scott Hartman v. State
M2002-01430-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Student-athlete entered into athletic scholarship with University under which University agreed to furnish medical treatment for any injuries incurred during athletic competition. Student-athlete suffered catastrophic injury during competition. At the time of his injury, student-athlete was an enrolled Eligible Dependent under an insurance plan father purchased through his employer. Pursuant to this plan, and the subrogation provision contained within, employer paid a significant portion of student-athlete's medical expenses for a specific three-year period. Employer ratified original contract action of student-athlete and parents against University and State, and sought to recover medical expenses paid pursuant to the plan's subrogation provision. Claims Commission granted summary judgment in favor of employer, ruling that employer was entitled to recover medical expenses from University. Commission denied claimants' request for prejudgment interest. University appeals Commission's summary judgment ruling, and claimants appeal Commission's denial of prejudgment interest. We affirm.

Titan Trucking v. American Home Assurance & Beers Construction
M2002-01747-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Robert E. Corlew, III
This case involves the interpretation of a performance payment bond. The city contracted with a construction company to make improvements to a public project. The construction company entered into a performance payment bond with the surety to protect the city. The public project required excavation of soil, and the contract allowed the construction company to either relocate the dirt or remove it. A third party purchased the dirt. The purchaser's subcontractor hired a trucking company to move the dirt for the purchaser. The trucking company was never paid for its services. The trucking company sued the construction company and the surety under the terms of the performance payment bond. The trial court granted summary judgment in favor of the construction company and the surety. The trucking company appeals. We affirm, finding that the services provided by the trucking company were not covered under the terms of the performance payment bond because the construction company was not obligated to pay the third party purchaser for removal of the dirt.

John Moore vs. Teresa Moore
E2001-03028-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Ben K. Wexler
John Paul Moore appeals a judgment in a divorce proceedings, complaining that the Trial Court should have awarded him primary parenting rather than shared parenting with the child's mother, Teresa Ann Moore. He also complains that the Court erred in awarding an attorney fee to Ms. Moore in the amount of $300. Our standard of review as to both issues is whether the Trial Court abused its discretion. We find the Trial Court properly exercised its discretion and affirm.

Dudley Eastbourne vs. Roger Brumitte
E2002-00068-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Frank V. Williams, III
In this appeal from the Chancery Court for Loudon County the Appellant, Roger Brumitte d/b/a Roger Brumitte Construction, argues that the Trial Court erred in awarding the Appellees, Dudley C. Eastbourne and wife Barbara A. Eastbourne, damages for defects in the construction of their home. We affirm the judgment of the Trial Court as modified and remand for enforcement of the judgment and collection of costs below.