COURT OF APPEALS OPINIONS

10-99-034-C
10-99-034-C
Trial Court Judge: A. Andrew Jackson

Sylvester Young v. Nashville & Davidson County
M2000-02455-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Soloman
A prisoner allegedly slipped and fell on a wet floor in the Davidson County Jail, injuring his back. He brought suit against the Metropolitan Government of Nashville and Davidson County for deprivation of civil rights and negligence. The Chancery Court dismissed his civil rights claim on a Rule 12.02(6) motion, and transferred the negligence claim to Circuit Court. After a bench trial, the Circuit Court dismissed the negligence claim. We affirm.

Dept of Children's Srvcs vs. A.N.G. & S.L.G
E2002-01114-COA-R3-JV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Thomas J. Wright
The State of Tennessee, Department of Children's Services ("State" or "DCS") obtained temporary custody of the three minor children of A.N.G. ("Mother") and S.L.G. ("Father")(collectively referred to as "Parents") after Parents' two year old son was found in a roadway near their home. DCS later sought to terminate Parents' parental rights. After a trial, the Juvenile Court determined there were sufficient grounds to terminate Parents' parental rights and doing so was in the best interests of the children. Parents appeal, claiming DCS failed to prove by clear and convincing evidence that there were sufficient grounds to terminate their parental rights. Parents also claim DCS failed to prove by clear and convincing evidence that termination of their parental rights would be in the best interests of the children. We affirm the judgment of the Juvenile Court.

John Oliver Harper v. Cathy Lynn Harper
2002-01259-COA-R3-CV
Trial Court Judge: W. Dale Young

K.D.F., et al vs. J.F.
E2002-01117-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Thomas R. Frierson, II
This is a suit by K. D. F. and her present husband, R. J. F., Jr., seeking to terminate the parental rights of J. F. as to Z.T.J.F (d.o.b. June 8, 1998), preparatory to Mr. F. adopting the child in a future proceeding. Mr. F. appeals a determination by the Trial Court that his parental rights should be terminated, contending that the statutory grounds for such a determination were not met. We affirm.

L &Amp; L Tile v. Bruce Babb
E2001-02620-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Conrad E. Troutman, Jr.

Louis Brooks v. Lee Creech
M2001-02355-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Irvin H. Kilcrease, Jr.
This matter involves a fraudulent transfer of real property and violation of Tennessee's Consumer Protection Act occurring as a result of Plaintiff's attempt to obtain a loan using his real property as collateral. In return for a loan of $4000.00, Plaintiff quit claimed his home as collateral and gave Defendant Creech physical possession of the promissory note in exchange for the loan. Defendant Stigall, who had office space in the same office, was listed as trustee of the property and payee on the promissory note. She then represented herself to First American Bank as owner of the property and wife of Defendant Creech, obtaining a loan for $42,000.00 and offering Plaintiff's property as collateral. The trial court found that Defendants Stigall and Creech were involved in a conspiracy and that they violated the Tennessee Consumer Protection Act and defrauded Plaintiff and First American Bank (now AmSouth Bank). The court reformed the Quitclaim Deed into a Deed of Trust, giving the bank a subrogation in the $4000.00 owed to Defendant Stigall. Only Defendant Stigall appeals. We affirm the trial court's decision in its entirety.

Wendy Layne v. Mark Layne
M2002-00670-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Thomas W. Graham
The divorced parents of a fourteen-year-old girl asked the trial court to sign an agreed order to enable her to live with her grandmother so she could attend school in Hamilton County. The trial judge refused to sign the order. While the decision to sign or not to sign such an order is within the sound discretion of the trial court, the court in this case erroneously believed that it lacked jurisdiction over the matter because the parties had not shown a change of circumstances since the prior decree. We find that the proof does show a change of circumstances and that the best interests of the child require the entry of the proposed order. Therefore we reverse.

Michael D. Matthews vs. Natasha Story
E2002-00517-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: John K. Wilson
This case arises out of an automobile accident in which the plaintiff, Michael D. Matthews, was injured. The plaintiff sued Tammy Y. Morelock ("Morelock"), alleging that Morelock was a passenger in the vehicle the plaintiff was driving and that Morelock's negligence had caused his injuries. When the plaintiff later learned that Natasha Story ("Story") was the passenger in the vehicle and not Morelock, the plaintiff attempted to amend his complaint to add Story as a defendant. The trial court dismissed the plaintiff's claim against Story, holding the statute of limitations barred such an amendment. The trial court also granted Morelock's motion for summary judgment, finding the family purpose doctrine inapplicable. We affirm.

Glenda Cooper vs. State
E2002-02415-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
This is a wrongful death action filed against the State of Tennessee with the Tennessee Claims Commission. The State filed a motion for judgment on the pleadings, asserting that it was not liable for the actions of the Bradley County Sheriff, whose negligence is alleged to be the proximate cause of the death of the plaintiff's intestate. The Claims Commission, relying upon the case of Spurlock v. Sumner County, 42 S.W.3d 75 (Tenn. 2001), held that the sheriff was not a state employee but rather a county officer. It dismissed the claim against the State. We affirm.

The Rogers Group vs. Anderson County
E2002-00409-COA-R9-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Telford E. Forgerty, Jr.
After case was tried, the Trial Judge recused and another Judge was designated who granted a new trial on all issues. On appeal, we affirm.

State vs. Deborah Rainey
W2002-00010-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Rita L. Stotts
This appeal arises from a condemnation proceeding. The trial court awarded the Appellant $38, 040.00 as the fair market value of the property taken and zero dollars for incidental damages to the remaining property. Appellant raises a single issue on appeal. For the following reasons, we dismiss the appeal.

Jet Printing v. Deep South Wholesale Paper
M2001-02582-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Carol L. Mccoy
This is a breach of contract case. A bag manufacturer ordered printed polyethylene film from a printing company, to be made into bags to sell to chicken packaging companies. The film was treated on both sides. Consequently, the bag manufacturer was unable to properly seal the bags. Later shipments of film that were not treated on both sides sealed properly. The bag manufacturer refused to pay for the initial shipment of film that would not seal, so the seller printing company sued for breach of contract. The trial court found for the bag manufacturer, holding that the seller breached both an implied term of the contract and an implied warranty of fitness for a particular purpose. On appeal, the seller printing company argues that the trial court erred in finding that the film did not conform to the contract and that the seller breached the implied warranty of fitness for a particular purpose, and that the trial court erred in excluding the testimony of the seller's proffered expert. We affirm, finding that the trial court did not err in finding that the seller breached an implied warranty for a particular purpose, nor in excluding the testimony of the seller's expert witness.

Violet Guarino v. Joseph Corrozzo
M2001-02789-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Royce Taylor
The appellant was ordered in a divorce decree to pay his wife a portion of his pension. He attempted to discharge these payments in a bankruptcy proceeding. The Chancery Court of Rutherford County held that the payments were non-dischargeable because they constituted "support, maintenance or alimony" payments which are not dischargeable under the bankruptcy code. On appeal, appellant argues that wife violated the automatic stay injunction by filing in a state court and that she failed to properly object to the discharge. Appellant also argues that the trial court did not have subject matter jurisdiction. We hold that the payments were in the nature of support and, therefore, not a dischargeable debt. This result means that the issues raised by the appellant are moot. We affirm the trial court's decision.

Brenda Martin, Executor Est. of Dewey Moore v. Jean Moore
M2001-03144-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Vernon Neal
A man who had been diagnosed with dementia executed a power of attorney in favor of his wife. The wife used the power to withdraw all the money from her husband's separately owned bank account, and sent most of it to her brother for investment overseas. She also completed the sale of real property her husband had owned in Kentucky, and placed the proceeds in a marital account. After his death, the man's daughter from a previous marriage brought suit for breach of fiduciary duty, asking for the return of the assets to his estate. The trial court ordered the return of the money taken from the bank account, but ruled that the wife was entitled to keep the proceeds from the sale of the real property. The court also ordered the wife to pay some of the daughter's attorney fees. We affirm the judgment of the trial court.

Western Express v. Benchmark Electronics
M2001-03151-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Mccoy
Western Express, Inc. sued Benchmark Electronics Huntsville, Inc. for detention charges after Western's trailers were unreasonably detained at Benchmark's plant in Pulaski. The Chancery Court of Davidson County granted summary judgment to Benchmark, and Western asserts on appeal that the court erred in finding that the undisputed facts show that Western cannot prevail on its claims. We reverse the judgment of the trial court.

Michael Higgins vs. Sheriff A.C.Gilles Jr.
W2001-02829-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: D. J. Alissandratos
Petitioner, off-duty deputy sheriff, was arrested during bust of known drug house for possession of drug paraphernalia. Upon deputy sheriff's arrest, Internal Affairs twice ordered petitioner to submit to drug test. At time of requests, petitioner did not have assistance of counsel; however, two Sheriff's Association representatives were present and available for consultation. Petitioner refused both orders, but on third day following arrest, after consulting with an attorney, voluntarily requested drug test. Department refused request, and subsequently charged petitioner with insubordination, possession and use of illegal drugs, and conduct unbecoming an officer. After hearing before the Deputy Chief, petitioner was terminated. Civil Service Merit Board upheld termination, and petitioner filed common law writ of certiorari with chancery court. Chancery court affirmed the Civil Service Merit Board. We affirm.

Christopher Ryan vs. James Surprise
W2001-02853-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: George H. Brown
This case involves discovery sanctions. The plaintiff sued the defendants, a lawyer and his law firm, for legal malpractice. The plaintiff requested certain documents from the defendants at least three times, which were not produced. The trial court ordered production of the documents at a deposition. The documents were not produced at the deposition. Twenty-eight days after the deposition, on the eve of a hearing on the defendants' alleged discovery abuses, the documents were produced. In response to the plaintiff's request for sanctions, the trial court ordered that the defendants pay the plaintiff's attorney a monetary sanction. The defendants appeal, arguing that the imposition of the sanction was an abuse of discretion, because there was no evidence indicating the amount of attorney time spent on the alleged discovery abuse and, therefore, no evidentiary basis for the amount of the sanction. We vacate the order of the trial court and remand for further proceedings, because the record does not support the trial court's award.

Eddie M. Gurley And Janet R. Gurley v. Hickory Withe
W2002-02050-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Dewey C. Whitenton

Raymond Anthony vs. Christine Rodgers
W2002-01240-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Rita L. Stotts
This case began as a petition for dependency and neglect but evolved into a custody dispute between the mother and father of a child born out of wedlock. Originally, the mother appealed to the Circuit Court of Shelby County which stayed the order of the Juvenile Court granting custody to the father. The father appealed to this Court pursuant to Rule 10 of the Rules of Appellate Procedure and we remanded this case to the Circuit Court for entry of an order transferring the appeal to this Court as the Circuit Court lacked subject matter jurisdiction. For the following reasons, we affirm the decision of the Juvenile Court.

James Jordan Jr. vs. Kelly Jordan
W2002-00854-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Rita L. Stotts
This case involves the enrollment of a foreign divorce decree, enforcement of the child support obligation therein, and the modification of the visitation privileges set out in the decree. The trial court enrolled the foreign decree, entered judgment for arrearages and child support, and amended the enrolled judgment as to the visitation privileges for Father. Father appeals. We affirm.

A.I.J.J. Inc. vs. Norman Weizer
W2002-00975-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert L. Childers
This dispute regards a contractual obligation of an employee to repay recruitment costs incurred by his employer should he leave his position within a two year period. The trial court applied Florida law to the dispute and awarded judgment to the employer. We hold the contract is governed by New York law. We further find the provision was not applicable where the employee was terminated and reverse the judgment.

Promus Hotels vs. Martin, Cole, Dando, Robertson
W2002-01028-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Walter L. Evans
Shelby County -This is an appeal from an Order denying Appellant's Motion to Compel Arbitration. Appellant filed a third-party claim against its subcontractor, Appellee, for indemnity. The Subcontract between the parties contained an agreement to arbitrate. Appellant contends that the agreement binds Appellee to arbitrate the matter. Appellee contends that it is not bound to arbitrate due to an exception in the Subcontract. We affirm and remand.

Trumbo Inc. vs. Witco Corp.
W2002-01186-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: D'Army Bailey
This case involves the loss of evidence. A metal fabrication company modified a fat melting tank for another company. Later, an employee of the melting tank company was severely injured by hot melted fat while working with the modified tank. Following the accident, as part of an investigation, the employer removed the two temperature gauges attached to the tank. The employer paid workers' compensation benefits to the employee. The employee then sued the fabrication company that modified the tank. The employer intervened to assert its statutory lien under the workers' compensation laws, so that it could recover any monies paid to the employee by the fabrication company. Five years after the accident, the fabrication company sought production of the temperature gauges from the employer, as part of its defense in the lawsuit filed against it by the employee. The employer was unable to locate the gauges. The fabrication company settled the lawsuit filed by the injured employee, and filed a claim against the employer for spoliation of evidence and negligence. The fabrication company argued that it was forced to settle the underlying lawsuit with the employee, in part because of the missing gauges. The trial court granted a motion for summary judgment in favor of the employer, finding that the employer did not have a duty to preserve the evidence and that the fabrication company had not established causation. The fabrication company appeals. We affirm, finding that regardless of whether the employer had a duty to preserve the temperature gauges, the fabrication company had not proffered evidence that the gauge would have materially assisted it in defending the lawsuit filed by the employee, and thus was unable to establish causation.

In matter of: S.Y., J.Y., and D.Y.
W2002-00593-COA-R3-JV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George E. Blancett
Department of Children's Services filed petition to terminate parental rights of mother of dependent and neglected minor children. Department's termination petition was based on allegations of abandonment, mother's failure to substantially comply with a permanency plan, and the removal of the children for at least six months with little likelihood that the condition causing removal will be remedied. Juvenile Court granted petition terminating mother's parental rights. Mother appeals, asserting that juvenile court violated her due process rights by failing to appoint an attorney for the dependent and neglect proceeding, and erred in concluding that clear and convincing evidence exists to support findings that warrant termination of parental rights. We affirm.