COURT OF APPEALS OPINIONS

Jon Hall v. Bill McLesky, et al.
M2000-01857-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
A death row inmate filed a Petition for Declaratory Judgment, claiming that employees of the Department of Correction had caused his attorney's phone number to be removed from an approved calling list, and had refused to restore the number to the list in a timely way. The inmate named seven employees of the Department and a private telephone company as defendants, and demanded monetary damages. The trial court dismissed the action, because the petitioner failed to comply with the mandatory requirements of the Uniform Administrative Procedures Act. Because we do not believe the petitioner was entitled to relief under any of the theories he advanced, we affirm the trial court.

Troi Bailey, Sprint Logistics& Sprint Warehouse & Cartage v. City of Lebanon
M2001-00641-COA-R3-CV
Authoring Judge: Chancellor Irvin H. Kilcrease, Jr.
Trial Court Judge: John D. Wootten, Jr.
This is an appeal by appellant, City of Lebanon, Tennessee (hereinafter "City of Lebanon") from an order of the trial court awarding damages to the appellee Troi Bailey (hereinafter "Mr. Bailey") and appellees Sprint Logistics, LLC and Sprint Warehouse and Cartage, Inc.(hereinafter collectively "Sprint"), resulting from a motor vehicle accident. We affirm the trial court.

Beford County v. Joseph Bialik
M2001-00681-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Lee Russell
A landowner appeals from a decision finding him in violation of county zoning laws, ordering him to take corrective measures, and enjoining future activities of the same type. Because the record before us does not include a transcript of the trial or a statement of the evidence, we must presume the evidence supported the trial court's findings and, consequently, affirm.

Vickie Bara v. Clarksville Memorial Health Systems, et.al
M2001-00682-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: James E. Walton
Parents of deceased child sued Clarksville Memorial Hospital and Dr. David Miller for the death of their child. They alleged this death occurred due to Defendants' mis-diagnosis of their daughter's injuries following an automobile accident and subsequent incorrect and negligent treatment. The jury returned a verdict for Defendants. Plaintiffs now appeal alleging two points of error in the jury instructions; (1) that it was error to charge the jury that Plaintiffs must prove causation to a reasonable degree of medical certainty and; (2) that it was error to charge the jury that they must find the child's death to be reasonably foreseeable. We find that the jury instructions on reasonable degree of medical certainty and foreseeability were incorrect statements of the law, confusing to the jury, and more probably than not, affected the jury's verdict. We thus reverse the judgment and remand for a new trial as to Defendant Miller. We affirm the judgment in favor of Clarksville Memorial Hospital.

Joe Morgan. v. Barbara Good (Grimes)
M2001-00683-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Don R. Ash
Plaintiffs filed suit against Defendant in order to determine the true boundary line and ownership of one-half acre of property adjacent to both Plaintiffs' property and Defendant's property. The trial court determined that the boundary line cut diagonally across the disputed property giving approximately one-quarter acre to Plaintiffs and one-quarter acre to Defendant. Plaintiffs appealed asserting that they are the true owners of the entire one-half acre and that the trial court was in error when it established the diagonal boundary line splitting the disputed property. We agree with the trial judge's determination of the boundary line and affirm the chancery court's opinion.

Estate of Anthony Vanleer v. Sara Harakas
M2001-00687-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Donald P. Harris
A default judgment was entered against Sara and Andre Harakas, the Appellants herein, in a dispute over defects in the construction of a residence. At the time the default judgment was entered, Mr. and Mrs. Harakas had not answered the complaint. Mr. and Mrs. Harakas filed a pro se motion to set aside the default judgment, arguing that they did not receive the notice of the motion for default judgment, which the trial court denied after a hearing that included testimony from Mrs. Harakas. Mr. and Mrs. Harakas then retained an attorney who filed a motion to alter or amend the refusal to set aside the default judgment and a second motion to set aside the judgment taken by default. The trial court denied these motions. Because there was reasonable doubt as to whether the default judgment should have been set aside, we reverse the trial court's refusal to set aside.

Caroline Smith v. Mark Smith
M2001-00689-COA-R3-CV
Authoring Judge: Chancellor Irvin H. Kilcrease, Jr.
Trial Court Judge: Barry R. Brown
This is an appeal by appellant Caroline Elizabeth Smith from an order of the trial court which provided that the custody of the minor children of Caroline Elizabeth Smith and Mark O. Smith shall remain in the custody of Mark O. Smith. We affirm the trial court.

Caroline Smith v. Mark Smith
M2001-00689-COA-R3-CV
Authoring Judge: Chancellor Irvin H. Kilcrease, Jr.
Trial Court Judge: Barry R. Brown
This is an appeal by appellant Caroline Elizabeth Smith from an order of the trial court which provided that the custody of the minor children of Caroline Elizabeth Smith and Mark O. Smith shall remain in the custody of Mark O. Smith. We affirm the trial court.

VP Buildings, Inc., v. Polygon Group, Inc., et al.
M2001-00613-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Carol A. Catalano

In this appeal the sole shareholder and director of Polygon appeals the trial court's decision to hold her personally liable for a debt owed by Polygon. The corporate officer contracted to do business in Tennessee, knowing that Polygon was not qualified to do business here and knowing that Polygon had not filed an annual report in three years, which made it subject to administrative dissolution. After suit was filed against Polygon, the shareholder encumbered all of the corporation's assets. Further, after she was sued personally, she filed to have Polygon's charter retroactively reinstated. The trial court held that the shareholder abused the corporate form, that the corporate entity should be disregarded and that the sole shareholder and director should be held personally liable. We affirm the decision of the trial court.

In The Matter Of: Allan Russell Burke v. Maureen Jo Burke
M2000-01111-COA-R3-CV
Authoring Judge: Judge David Farmer

This Court now amends its previous Opinion in the above styled case with respect to the following issues: (1) the date of Mr. Burke’s summer visitation; (2) the Judgment shall be amended to include a statement of  standard parenting orders pursuant to T.C.A. 36-6-101(a)(3); and (3) the assessment of costs for appeal.

Darlette I. Billingsley v. Janelle C. Waggener
M2001-01015-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge J. Russ Heldman

This is an automobile accident case where each party claims she had the green light when she entered the intersection where the accident occurred. In addition to the depositions of the parties, Defendant submitted expert testimony to the effect that Plaintiff's version of the accident was physically impossible while Defendant's version was not. The Trial Court granted summary judgment to Defendant after concluding, as a matter of law, that Plaintiff's negligence was at least 50% under comparative fault principles. We conclude that genuine issues of material fact exist and vacate the judgment of the Trial Court.

Shelia J. Troy v. William Troy
M1998-00989-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Jim T. Hamilton

This appeal involves a dispute between a woman and her former in-laws regarding the title to a tract of property in Prospect, Tennessee and the in-laws' accounting for $35,000 held for the benefit of the woman and her former husband. When she filed for divorce in the Chancery Court for Giles County, the woman also named her in-laws as defendants and alleged that they had misappropriated marital assets and breached a contract to convey the property in Prospect, Tennessee. After agreeing to an irreconcilable differences divorce, the woman proceeded with her claims against her former in-laws. Following a bench trial, the trial court held that the in-laws had accounted for all the funds being held for the benefit of the woman and her former husband and that the in-laws owned the disputed property. On this appeal, the woman takes issue with both of these conclusions. We have determined that the trial court properly found that the property belonged to the in-laws. However, we have also determined that the in-laws did not properly account for $892.15 of the funds they were holding. Accordingly, we modify the final order to award the woman a $892.15 judgment against her former in-laws.

Lois Miller v. James Miller
M2001-00501-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Muriel Robinson
In this appeal from the Chancery Court for Davidson County Dr. Richard Wilson, the Plaintiff/Appellant, contends that the Chancellor erred in affirming an Administrative Judge's decision that Dr. Wilson engaged in conduct warranting his dismissal as a tenured faculty member at the University of Tennessee at Chattanooga, the Defendant/Appellee, for violation of the University's policy against sexual harassment. We reverse the judgment of the Chancery Court and remand for further proceedings consistent with this opinion. We adjudge costs against the University of Tennessee at Chattanooga.

Angela Phillips vs. William Phillips
W2001-01685-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Daniel L. Smith
This appeal arises from a divorce proceeding wherein the parties had two minor children. While the divorce was pending, the trial court issued a temporary order outlining the custodial rights of the parties with respect to their children. The final decree of divorce adopted a permanent parenting plan and distributed the marital property and debts. The husband filed this appeal contesting the permanent parenting plan and the manner in which the marital debts were apportioned. For the following reasons, we affirm the decision of the trial court

State Children Serv. vs. Donald Grant
W2001-01934-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Christy R. Little
This case involves the termination of parental rights. The child was voluntarily placed in the custody of the Department of Children's Services in April 1996 due to the parents' substance abuse. A petition was filed to terminate the parental rights of both parents. The mother's parental rights were terminated by default, but the petition was dismissed as to the father. The trial court then ordered visitation and child support. The father stopped making visits after two months and failed to pay any child support. A second petition to terminate the father's parental rights was filed on the grounds, inter alia, of abandonment and that the conditions which led to the child's removal persisted and were unlikely to be remedied. The trial court granted the petition to terminate parental rights and the father appeals. We affirm, finding clear and convincing evidence to support the termination of the father's parental rights.

Washshukru Al-Jabbar vs. State
W2001-02049-COA-R3-CV
Authoring Judge: Judge David R. Farmer
This is an appeal from an order of the Claims Commission granting summary judgment in favor of the Defendant. The claim was brought by an inmate in the custody of the Tennessee Department of Correction claiming that employees of the Department lost two pages of pleadings he filed in an action in circuit court.

Candace Fleck vs. Cooper Realty
W2001-00465-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: D'Army Bailey
Plaintiff allegedly sustained injuries at Mid Memphis Tower Building when she exited an elevator which failed to level. She and her husband sued the building's management company and the company that owns the manufacturer of the elevator. The suit against the elevator company alleges that the company was negligent "by failing to insure that the elevator in question was properly inspected, maintained, and repaired." The elevator company's interrogatories, inter alia, requested the identity of any expert witness the plaintiffs planned to use at trial. Plaintiffs answered this interrogatory in December, 1998: "Plaintiffs have not identified such individuals at this time." The interrogatories were never supplemented, and the case was set for trial on December 1, 1999. In October, 1999, the elevator company filed a motion for summary judgment on the ground that the lack of an expert witness prevented plaintiffs from proving essential elements of the case. Plaintiffs were granted additional time within which to obtain an expert witness and subsequently announced that plaintiffs did not intend to have an expert witness. The trial court granted summary judgment to the elevator company. Subsequently, the building's management company settled its case and upon dismissal of that suit, the grant of summary judgment became final. Plaintiff-wife appealed. We reverse.

Debbie Risner vs. Nathan Harris
W2001-01041-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: William B. Acree
This is an action to recover personal property. The plaintiff and defendant lived together for seventeen years. In November 1999, the plaintiff moved out. She left personal property in the trailer in which the couple was living, in the nearby convenience store owned by the defendant, and in a storage unit in another town. In August 2000, the convenience store caught on fire, and the plaintiff's personal property in the store was destroyed. Soon thereafter, the defendant took possession of the plaintiff's other personal property that had been held in the storage unit and called her to come get it. In November 2000, the plaintiff filed a warrant in general sessions court to recover her personal property from the defendant. She claimed that the defendant had prevented her from retrieving any of her personal property. She received a judgment which was appealed to circuit court. The circuit court entered a judgment in favor of the plaintiff, awarded damages, and ordered the defendant to return certain items to the plaintiff. The defendant now appeals. We reverse the trial court's decision with respect to two of the items ordered returned and the property that the plaintiff had kept in the storage unit in another town, and affirm the remainder of the order.

Richard Wilson v. University of Tennessee at Chattanooga
M2000-02573-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Irvin H. Kilcrease, Jr.
In this appeal from the Chancery Court for Davidson County, Dr. Richard Wilson, the Plaintiff/Appellant, contends that the Chancellor erred in affirming an Administrative Judge's decision that Dr. Wilson engaged in conduct warranting his dismissal as a tenured faculty member at the University of Tennessee at Chattanooga, the Defendant/Appellee, for violation of the University's policy against sexual harassment. We reverse the judgment of the Chancery Court and remand for further proceedings consistent with this opinion. We adjudge costs against the University of Tennessee at Chattanooga.

David Pitts v. Floyd Blackwell
M2000-01733-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Floyd Don Davis
This appeal involves the decision of a probate court to approve the amended first and final accounting of a conservatorship and award attorney's fees for the conservator's defense of the accounting. The conservator, owner of a funeral home, conducted a $26,367.75 funeral for the conservatee. An interested party objected to approval of the funeral expenses and a hearing was held. The probate court ordered the conservator to return the proceeds from a prepaid burial life insurance policy to the estate, but confirmed the accounting in all other respects. For the following reasons, we affirm in part, reverse in part, vacate in part and remand for further proceedings.

Ishaaq (aka Alonzo Stewart) v. Dept. of Correction, et al.
M2000-01957-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Mccoy
Ishaaq, a prisoner in the Department of Corrections serving a combined 130 year sentence for Class X felonies committed prior to July 1, 1982, seeks to rescind a waiver by which he chose, in 1987, to gain the sentence reduction credit benefits applicable to him under Tennessee Code Annotated section 41-21-236. He seeks to rescind the waiver under the belief that he would thereby become eligible for mandatory parole. The trial judge dismissed his complaint, and we affirm the action of the trial court.

Steffone McClendon, father of Damien O'Shay Maurice McClendon, the next of kind of Cyhthia Vanessa Francis, Deceased, v. Dr. Elaine Bunick
E2001-02816-COA-RM-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Dale C. Workman

This case involves a medical malpractice claim that was dismissed on summary judgment by the trial court. The plaintiff, Steffone McClendon, appealed to this Court, seeking a reversal of the trial court’s summary judgment. We affirmed the trial court’s decision based on the legislative history and our interpretation of Section 20-1-119 of the Tennessee code. The plaintiff sought a review of this Court’s decision with the Tennessee Supreme Court. Although the supreme court refused to hear the case, it remanded the case to this Court for reconsideration in light of Townes v. Sunbeam Oster Co., Inc., 50 S.W. 3d 446 (Tenn. Ct. App. 2001) released this year by the middle
section of this Court and recently published.

Town of Greeneville vs. Jack Cobble, et ux
E2001-00869-COA-R9-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Kindall T. Lawson
Trial Court refused to grant partial summary judgment as to the extent of land taken. On appeal, we reverse.

E2001-01363-COA-R3-JV
E2001-01363-COA-R3-JV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Tom Wright

Monroe Davis vs. State
E2001-02032-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
The plaintiff, Monroe E. Davis is a prisoner in state custody. He filed a complaint with the Tennessee Claims Commission ("the Claims Commission") against the State of Tennessee and the warden of the facility at which he is incarcerated, seeking damages for the alleged detention and/or conversion of his personal property by the warden. The Claims Commission granted the defendants' motion to dismiss. We affirm.