COURT OF APPEALS OPINIONS

Olalee Herron McClaran vs. Don M. McClaran
M2000-01666-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Don R. Ash
Plaintiff Olalee Herron McClaran sues her son, Defendant Don M. McClaran, seeking compensatory and punitive damages for his mishandling of funds coming into his hands as her attorney in fact in connection with the sale of certain real estate. The jury awarded both compensatory and punitive damages, resulting in this appeal wherein Mr. McClaran complains of the exclusion of evidence, the trial court's directing a verdict as to two claims in his counter-complaint, the seating of a six-person, rather than a 12-person jury, and the excessiveness of the punitive damage award. We affirm.

J. Howard Gregg vs. Jack Johnson
E2000-02685-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Jerri S. Bryant
J. Howard Gregg ("Plaintiff"), sued his former business partner, Jack Johnson ("Defendant"), essentially alleging that Defendant breached an agreement to pay a debt originally incurred by their former partnership, Jack Johnson Motors. Plaintiff also alleged that Defendant owed him money as part of their partnership ("Partnership") dissolution agreement. Neither the Partnership agreement nor the dissolution agreement was written. Defendant raises as defenses the statute of limitations and the statute of frauds. The trial court held in favor of Plaintiff. Defendant appeals. We affirm.

Johnny McGowan vs. Jimmy Farr II, et al
E2000-02519-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Frank V. Williams, III
Johnny McGowan ("Plaintiff"), an inmate at the Brushy Mountain Correctional Complex filed this lawsuit against the various defendants alleging violations of federal and state law after medication was confiscated from his cell. Plaintiff improperly filed a grievance which was returned to him with instructions on how to properly process same. Instead of refiling the grievance in accordance with proper procedure, Plaintiff filed this lawsuit. The Trial Court granted summary judgment to the defendants. We affirm, concluding that Plaintiff failed to exhaust his administrative remedies which bars all of his claims.

In Re: Estate of Gloria Eleanor Franklin
E2000-02687-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

This is apparently a case of first impression. The appellant, W. Jess Waltman, filed a petition in the trial court seeking to probate a document purporting to be the last will and testament of Gloria Eleanor Franklin ("the decedent"). The will, dated "July 7 93," directs that the appellant and his wife, Terry Waltman, are to receive the decedent's estate "in case I die on my way to & from Jersey." The trial court held that the will was not eligible for probate because it was a conditional will and the specified condition or contingency, i.e., Ms. Franklin's demise "on the way to & from Jersey," had not occurred. We vacate the trial court's judgment and remand for further proceedings consistent with this opinion.

Jacqueline Telford v. Michael Telford
M2000-02938-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Leonard W. Martin
This appeal from the Chancery Court of Cheatham County questions whether the Trial Court erred in awarding Ms. Telford alimony in the amount of $1,000.00 per month, and in granting Ms. Telford a judgment of $21,040.00 as the amount owing on the property division. Additionally, this appeal questions whether the Trial Court erred in limiting alimony to eight years and whether the Trial Court erred in failing to grant retroactive child support. We vacate the decision of the Trial Court in part and affirm as modified in part and remand for further proceedings consistent with this opinion. We divide costs of the appeal equally between the Appellant, Michael Allen Telford, and the Appellee, Jacqueline M. Telford.

James A. Hodge v. Jones Holding Company, Inc.
M1998-00955-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge F. Lee Russell

This appeal involves a motorcycle rider who was seriously injured when his motorcycle crossed metal plates covering a portion of the highway surface that was under construction. After voluntarily dismissing his first suit, the rider filed a second suit in the Circuit Court for Lincoln County against the corporation he believed to be responsible for placing the metal plates across the highway. The rider insisted on proceeding against this corporation even after he was informed that he had sued the wrong party. The corporation moved for a directed verdict at the close of the motorcycle rider's case-in-chief, asserting that he had failed to prove that it was responsible for the road construction. The trial court granted the motion and dismissed the rider's complaint. The rider now challenges the directed verdict on two grounds. First, he asserts that he presented enough evidence of the contractor's responsibility for the construction to take the case to the jury. Second, he asserts that the corporation should not be permitted to argue that he sued the wrong party because it had not specifically identified or described this party in its answer as required by Tenn. R. Civ. P. 8.03. We have determined that the corporation's denial of involvement with the construction project at issue was was not asserting an affirmative defense governed by Tenn. R. Civ. P. 8.03 and that the trial court properly granted the directed verdict. Therefore, we affirm the judgment dismissing the motorcycle rider's complaint.

Billy Conatser, et al., v. L.D. (Joe) Ball
M1999-00583-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Vernon Neal

This case involves a dispute over the scope of the right of the defendant to use the plaintiffs' property as a means of ingress and egress to various sections of the defendant's property. The deed to defendant's 1,600 acre tract, which surrounds plaintiffs' 151 acre tract on 3 sides, included a 26 foot wide north-south easement over plaintiffs' property. Plaintiffs alleged that defendant refused to confine his activities within the easement, thereby trespassing and committing waste upon their land. The trial court determined that defendant was entitled to use the 26 foot wide easement running in a north and south direction on the Conatsers' property and a second 20 foot wide route of ingress and egress branching off of the 26 foot easement in a northwesterly direction. The court rejected defendant's claim that he was entitled to a third easement along another east and west direction route and awarded plaintiffs $2,500 in damages for trespass. We affirm the trial court's rulings on the scope of defendant's easement and modify the damages to the $5000 originally awarded by the trial court.

Thomas C. Farnsworth, Jr., v. Gary P. Faulkner, et al.
W2000-02031-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor D. J. Alissandratos

This appeal arises from the trial court's granting of a motion of summary judgment. The court ruled that Shop had violated an Agreement which incorporated in its entirety a previous lease of certain property. As a result, Owner was awarded the repair costs for certain repairs that Shop had been responsible for under the lease. Owner was also awarded attorney's fees and expenses. Shop appealed, arguing that certain material facts were in dispute and thus summary judgment was inappropriate. We affirm in part and reverse in part.

Donna Jo Russell , et al vs. John Russell
M2000-01101-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Arthur E. Mcclellan
On August 5, 1998, Donna Jo Russell Freeman filed a complaint for divorce against John Robert Russell. The parties entered into a Marital Dissolution Agreement ("MDA") and shortly thereafter the trial court entered a final decree of divorce on December 21, 1998. The MDA did not address the legal rights and responsibilities with regard to the two children (hereinafter referred collectively as "the minor children"). The children's biological father is Carl Robert Freeman. Donna Jo Russell and Carl Robert Freeman married on November 29, 1999. Subsequently, Carl Robert Freeman filed a petition to establish parentage of John and Josiah Russell. John Robert Russell filed a motion seeking temporary visitation rights of the minor children and a Rule 60.02 motion. The trial court denied John Robert Russell's temporary visitation rights and consolidated his Rule 60 motion with Carl Robert Freeman's parentage petition. On March 10, 2000, the Circuit Court of Sumner County granted Carl Robert Freeman's petition to establish parentage, effectively making him the father of the minor children. The trial court further denied John Robert Russell's Rule 60.02 motion. On April 24, 2000, John Robert Russell filed this appeal.

Ebbtide Corp. vs. The Travelers Ins. Co., et al
M1999-01932-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Robert E. Burch
The insurance broker involved in this matter, Willis Corroon, failed to forward to Plaintiff the terms for reinstatement of Plaintiff's workers compensation policy, which terms were faxed to Willis Corroon by Travelers, the insurer. As a result, Plaintiff, Ebbtide Corp., was without insurance for several months, during which time one severe worker's compensation claim was filed and paid for by Plaintiff. The trial court determined that Tennessee Code Annotated section 56-6-147 was not applicable to Willis Corroon as an insurance broker; as such, Willis Corroon was the agent of Plaintiff, the insured. Thus, Travelers fulfilled its contract with Plaintiff by properly communicating the terms for insurance reinstatement to Plaintiff's agent, Willis Corroon. Willis Corroon was found to be negligent for not forwarding these terms on to the Plaintiff and liable for all damages incurred by Plaintiff as a result of their being uninsured. The preliminary question to be determined is whether section 56-6-147 applies in this matter to make Willis Corroon the agent of the insurance company. We agree with the trial court's determination that section 56-6-147 does not apply to the facts presented in this matter and affirm the trial court's ruling.

Town of Linden, et al vs. Bliss Garcia, et al
M2000-01776-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Russell Heldman
This case presents an appeal from a declaratory judgment action brought by Plaintiffs/Appellants, Town of Linden and Tex Smith, to request an interpretation of the phrase "next regular election" contained in the charter for the town of Linden. The trial court held that this phrase included the next county election, being the next regularly scheduled election in the town of Linden on August 3, 2000, and also held that the town of Linden had no standing to bring a declaratory judgment action on this issue. Plaintiffs appealed both holdings. We affirm the trial court on both issues.

Debra McDowell vs. Robert McDowell
M2000-02153-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Jeffrey S. Bivins
Mr. and Ms. McDowell were divorced by the Williamson County Circuit Court on September 15, 1986. On March 16, 2000, Ms. McDowell filed a contempt complaint against Mr. McDowell alleging that he had breached an agreement to pay his youngest daughter's private school tuition at Battle Ground Academy. A hearing was held on May 2, 2000, concerning the contempt complaint. Following the hearing, the Honorable Jeffery Bivens of the Williamson County Circuit Court took the matter under advisement. On July 28, 2000, the trial court ordered Mr. McDowell to pay his daughter's tuition until she graduated from Battle Ground Academy. This appeal soon followed.

Terese Overland vs. Swifty Oil Co.
M2000-02192-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Russell Heldman
On October 22, 1997, an accident occurred involving two minors, Ms. JoNee O'Brien and Ms. Kari Ann White. As a result of the accident, Ms. White, a passenger in Ms. O'Brien's automobile sustained fatal injuries. On February 24, 1998, Ms. Terese Overland, individually and as natural mother and next of kin of Ms. White, filed a wrongful death action against Ms. O'Brien and her mother, Ms. Jackie O'Brien Woodard. On October 22, 1998, the complaint was amended to add Swifty Oil Co., Inc. as an additional party. The complaint alleged that the young minors obtained intoxicating liquors from Swifty's manager, Mark Erickson. On April 14, 1999, the complaint was amended again alleging negligent supervision on behalf of Swifty. Swifty subsequently filed a motion for summary judgment pertaining to the claims asserted by Ms. Overland on March 31, 2000. By Memorandum of Law, the trial court granted summary judgment to Swifty on all claims on May 12, 2000. An Order dismissing all claims against Swifty was entered May 18, 2000. On July 5, 2000, an Order of compromise and settlement was entered effectively dismissing all the claims against the defendants excluding Swifty. Notice of this appeal soon followed.

Peter Kuderewski, et al vs. Estate of Hoover Hoobs, et al
E2000-02515-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Richard E. Ladd
Peter Kuderewski and David Sanchez ("Plaintiffs") sued Hoover Hobbs ("Defendant"), alleging they had an implied partnership during the beginning phases of a now-defunct plan to open a family fun center in Kingsport, Tennessee ("Project"). Plaintiff argues the parties had agreed to use property ("Property") already owned by Defendant for the Project. A portion of the Property was later sold, and Plaintiffs sought to recover 50% of the sale price pursuant to their claimed respective partnership interests. Alternatively, Plaintiffs claim they were entitled to recover, under a theory of unjust enrichment money spent toward improving Defendant's Property in anticipation of the Project. After a bench trial, the Trial Court denied both of Plaintiffs' claims. Plaintiffs appeal. We affirm.

Kenneth Psillas, et al vs. Home Depot, Inc.
M1999-00064-COA-R9-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Russell Heldman
This appeal involves an eight-year-old boy who was injured while playing on a roll of carpet in a home improvement store. The child and his parents filed a negligence action against the home improvement retailer in the Circuit Court for Williamson County. After extensive discovery, the retailer moved for summary judgment on the ground that the child and his parents had failed to demonstrate that they would be able to prove all the necessary elements of their negligence claim. The child and his parents responded that they had presented sufficient evidence to make out their claim based on the doctrine of res ipsa loquitur. The trial court denied the motion for summary judgment but authorized the retailer to pursue a Tenn. R. App. P. 9 interlocutory appeal. We have determined that the trial court erred by denying the retailer's summary judgment motion because the boy and his parents have not presented sufficient evidence to invoke the res ipsa loquitur doctrine. Accordingly, we reverse the order and remand the case to the trial court with directions that the case be dismissed.

In the Matter of: Dakota Hoover-Crawford , Colton Thomas & Dusty Thomas, Dept. of Children's Svcs. vs. Niki Crawford Thomas
M2000-01655-COA-R3-CV
Trial Court Judge: John B. Melton
This is a suit for the termination of parental rights. The Appellee filed a petition to terminate the Appellant's parental rights to three of her minor children. Following a hearing, the Juvenile Court of Cannon County entered an order terminating the Appellant's parental rights. The Appellant appeals the trial court's order terminating her parental rights. For the reasons stated herein, we affirm the trial court's decision.

Kathryn Darden vs. Bradley Sensing, et al
M2000-01519-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Ellen Hobbs Lyle
This appeal arises from the Appellant's purchase of a house and property owned by the Appellees. Following the purchase, a landslide occurred on the property. The Appellant filed a complaint in the Chancery Court of Davidson County seeking compensatory damages against the Appellees for fraud, intentional misrepresentation, negligent misrepresentation, breach of warranty, breach of contract, deceit, and violation of the Tennessee Consumer Protection Act. Following a jury trial, the jury entered a verdict in favor of the Appellees. The Appellant filed a motion for a new trial. The trial court denied the motion for a new trial. The Appellant appeals the jury verdict in favor of the Appellees and the denial of the motion for a new trial by the Chancery Court of Davidson County. For the reasons stated herein, we affirm the trial court's decision.

Gulf Insurance Co. vs. Construx, Inc., et al
M1999-02803-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Russell Heldman
This is an appeal from the grant of Plaintiff's motion for summary judgment. The case arises from a construction contract in which Gulf Insurance Co. provided Construx, Inc. the required payment and performance bonds, and in return obtained an indemnity contract with the individual Defendants as indemnitors. Additionally, a Settlement Agreement was executed in connection with the permanent loan financing and Gulf settled the subcontractor liens with the remaining proceeds of the construction loan. After payments were made, Gulf sued for indemnity under the indemnity contract for payments made. Construx asserted that the Settlement Agreement barred Plaintiff's claims or, alternatively, Gulf did not act reasonably and in good faith in settling the claims and is not entitled to recovery. Summary judgment was granted to Gulf and Construx appealed. For the reasons below, we reverse and remand finding that there are genuine issues of fact, making summary judgment inappropriate.

Kathy Phillips, et al vs. Scotty Redmon, et al
M1999-01619-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Clara W. Byrd
In this appeal from the Circuit Court for Wilson County the Appellant, Justin Redmon, a minor child, through his guardian ad litem, questions whether the Trial Court erred in granting a petition filed by the Appellee, Kathy Phillips, to change custody from Justin's natural father, Scotty Redmon, to Ms. Phillips, Mr. Redmon's sister. We affirm the judgment of the Trial Court and remand for collection of costs below.

Christina Mae Stroud vs. Jimmy Stroud
M1999-02239-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Muriel Robinson
In this post-divorce case, the mother appeals the trial court's refusal to overturn a 1995 order awarding the father a judgment against her and sentencing her to ten days in jail for contempt of court. We affirm the trial court.

Dale Conrad McQuiston vs. Thomas Ward, Sheriff of Perry County
M2001-00201-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Russell Heldman
Dale Conrad McQuiston filed a pleading entitled "Writ of Replevin" wherein he sought to recover $1,000 cash and various items of personal property which were alleged to have been seized by the defendant Thomas Ward, Sheriff of Perry County, Tennessee. The trial court granted Defendant's motion for summary judgment. We affirm on the basis that Mr. McQuiston's suit was barred by the three year statute of limitations set forth in section 28-3-105 of the Tennessee Code Annotated.

Warbington Construction, Inc. vs. Franklin Landmark, LLC
M2000-00676-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Irvin H. Kilcrease, Jr.
This appeal involves the vacating of an arbitration award by the court below. The trial court applied nonstatutory grounds to vacate the decision of the arbitrator. Because we decline to adopt the nonstatutory grounds for judicial review of an arbitration award under the Federal Arbitration Act, we reverse.

Thomas Fulbright vs. Bevans Fulbright
E2000-02040-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: L. Marie Williams
Thomas Fulbright ("Husband") filed for divorce alleging inappropriate marital conduct on the part of Bevans Ramsey Fulbright ("Wife"). Wife filed a counter-claim seeking a divorce on the same basis. The Trial Court granted both parties a divorce, divided the marital property, awarded Wife rehabilitative alimony, and granted primary physical custody of the three minor children to Wife. Husband appeals all of these determinations, and Wife appeals the Trial Court's refusal to award her attorney fees. We affirm as modified.

Patricia Williams vs. Canada Life vs. James Williams/Deborah Elg
W2000-03096-COA-R3-CV
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: J. Steven Stafford
The plaintiff's husband died from a single gunshot wound to his chest which occurred while the two were alone in their home. By whose hand he died was the sole issue at both the trial and on appeal. If the plaintiff's husband shot himself, as she claims, she receives the proceeds from an insurance policy on his life. However, if she shot and killed her husband, as his adult children assert, they receive the insurance proceeds. Following the trial, the chancery court concluded that the death occurred as the result of a suicide. The defendants appealed, arguing that the presumption against suicide compels the conclusion that their father was shot to death by the plaintiff, their stepmother. Based upon our review, we affirm the judgment of the chancery court that the death occurred as the result of a suicide.

Gatlinburg Airport Authority, Inc. vs. Ross B. Summitt, et al
E2000-02646-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Dale Young
An electrical transmission line owned and maintained by TVA is located about 1000 feet from the eastern end of the runway at the airport owned and operated by the Gatlinburg Airport Authority [GAA]. The transmission line was constructed before the Airport was established. The two have coexisted without mishap, and no official publication, State or Federal, warns of any danger to aircraft posed by the transmission line. However, because of the transmission line, 360 feet of the runway cannot be used by aircraft landing or taking off. The GAA, after 35 years, concluded that the transmission line was an airport hazard. TVA is immune from suit, but agreed to relocate its transmission line if GAA would acquire the necessary easement over lands of the defendants. The trial court dismissed the eminent domain action, holding that (1) the plaintiffs should seek relief against TVA if the transmission line is hazardous, (2) the line is not hazardous, (3) there is no necessity to remove the line, (4) the attempted condemnation is arbitrary and capricious. The judgment is vacated.