COURT OF APPEALS OPINIONS

William Roberts vs. L. Land Bicknell
W2000-02514-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Roy B. Morgan, Jr.
In this medical malpractice case, patient and wife sued physicians and their professional association for damages resulting from defendants' negligence, deviation from applicable standard of care, and lack of informed consent. The trial court granted defendants a partial summary judgment for all claims concerning incidents that occurred more than one year prior to the date suit was filed, as barred by the statute of limitations. Subsequently, the trial court granted summary judgment on the merits as to all remaining claims. Plaintiff appeals. We affirm.

Cliffer Saulsberry vs. Labcorp
W2000-02826-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: James F. Russell
Plaintiff truck driver was required to submit to a random urine drug test pursuant to his employer's drug policy and mandatory Department of Transportation (DOT) guidelines. After the specimen tested positive for the presence of cocaine metabolites, plaintiff was discharged from his employment. Plaintiff sued the laboratory that conducted the test, alleging negligence in the testing procedure that resulted in a false report. The trial court granted the laboratory summary judgment, and plaintiff appeals. We reverse.

Shirley Schulze, A/K/A Shirley Schulze Vires v. Jere Steven
W2000-02953-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Robert S. Benham

Frank Donovan vs. National Bank
W2000-03064-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: D. J. Alissandratos
This is a breach of contract case. The defendant bank hired the plaintiff as a consultant to contact supermarkets about placing branch banks in their stores. In August 1988, the parties signed a written consulting contract which expired by its own terms in November 1988. In that contract, the plaintiff was to receive a salary plus $2,000 for each branch bank placed in a store as a result of his efforts. This contract expired, but the plaintiff continued to work for the bank for about ten years with no other written agreement. The plaintiff was never paid the $2,000-per-store bonus. In 1990, the plaintiff asked the bank to pay the $2,000-per-store bonus, and this request was ignored. The plaintiff's employment was terminated in 1998. In May 1999, the plaintiff sued the bank for breach of contract, claiming that they owed him the $2,000-per-store bonus under the original contract. The trial court granted the bank summary judgment based on the applicable statute of limitations. The plaintiff now appeals. We affirm, finding that the cause of action accrued, at the latest, in 1990 when the plaintiff requested the bonus and his request was ignored.

David Rouse vs. Ira Rouse
W1999-02126-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Floyd Peete, Jr.
This is a divorce action wherein the trial court declared the parties divorced. Husband appeals the trial court's decision to admit evidence regarding his retirement plan; its valuation of the same; its award of rehabilitative alimony to Wife; its award of attorney's fees to Wife; its division of marital debt; its adopting Wife's proposed final decree of divorce; its division of marital property; its admitting evidence regarding Husband's use of pornography; and its refusal to permit Husband's Rule 15 Memorandum in the record on appeal. Additionally, Wife seeks her attorney's fees on appeal. We affirm in part, reverse in part, and remand.

Alfred Bowling vs. Dobbs Bros.
W2000-01476-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Floyd Peete, Jr.
This appeal arises from the trial court's denial of a motion in limine. Employee was fired from his position at Company. At a pre-trial deposition, Manager testified on behalf of Company that Employee was terminated due to Manager's observation of Employee's lack of sales skills. Employee filed a motion seeking to bar testimony of other Company employees during the trial. These employees were to testify on Employee's lack of sales skills. Employee argued that this testimony would be inconsistent with Company's pre-trial deposition that Employee was terminated due to Manager's observation of his lack of sales skills. We affirm.

In re: Estate of Fannie Mae Johnson
W2000-01510-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert S. Benham
This appeal arises from the trial court's finding that a bank account was part of Decedent's estate and not the property of Executrix. In 1987, Decedent added Executrix to a bank account. Decedent failed to mark the portion of the card signifying that the account was to have rights of survivorship. After Decedent died, Executrix conducted an accounting in which she did not include the account. Beneficiary contested the accounting arguing that account should be part of the estate. Executrix argued that the addition of her name to the account created a presumption that the account's right of survivorship was a gift inter vivos. The trial court found that no presumption existed and that the account was part of the estate. We affirm.

Jacqueline Patterson vs. Richard French
W2000-02668-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: George R. Ellis
This is an attempt to collect child support arrearages. In a 1993 order, the father was ordered to pay current support as well as a lesser amount for an existing arrearage. The father failed to comply with this order. In 1999, the child reached majority. The State filed an action on the mother's behalf to set arrearage payments and hold the father in contempt. The trial court set the arrearage payments at an amount less than the total support the father had previously been ordered to pay. In addition, the trial court refused to consider the contempt petition because the child had reached majority. Finally, the court ordered the father to make payments through the clerk of the court rather than through the State disbursement unit. The State appeals all three decisions. We reverse, finding that the trial court was required to set the arrearage payments at the total amount of support previously ordered, that the child reaching majority is not a basis for refusing to consider the contempt petition, and that the father is required to make the payments through the State disbursement unit.

Barbara White vs. Dr. John Albritton
W2000-03068-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: James F. Russell
This appeal arises from a medical malpractice claim filed in the Circuit Court of Shelby County by the Appellant against the Appellees. On the first day of trial, the Appellant announced her intention to voluntarily nonsuit the case. The trial court entered an order of voluntary nonsuit. The Appellees filed a motion for discretionary costs. The trial court held that the motion was premature but would revisit the motion if the lawsuit was refiled. The Appellant refiled the lawsuit in the United States District Court for the Western District of Tennessee. The Appellees refiled the motion for discretionary costs in the Circuit Court of Shelby County. The circuit court granted the Appellees' motion for discretionary costs. The Appellant appeals from the grant of the Appellees' motion for discretionary costs by the Circuit Court of Shelby County. For the reasons stated herein, we affirm the trial court's decision.

Gwendolyn Henderson vs. Dept. Children Serv .
W1999-01940-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Kenneth A. Turner
This is a suit for the termination of parental rights. The Appellee filed a petition to terminate the Appellant's parental rights to two of her children. Following a hearing, the Juvenile Court of Memphis and Shelby 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.

Brooks Varner v. David M. Marrs And Latitia M. Marrs
2000-01029-COA-R3-CV
Trial Court Judge: Floyd Peete, Jr.

Billy George vs. Misty George Mullican
M2000-01106-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert E. Corlew, III
This appeal arises from a child custody action. After divorce, Mother was awarded custody of Child. Father later filed a petition for contempt charging that Mother was denying him visitation. Mother denied these charges and counter-filed claiming that Father had failed to meet his support obligations. While these matters were pending, Mother filed a report with the Department of Children's Services that Father had sexually molested Child. Mother later admitted these charges to be false, and as a result, Father gained temporary custody of Child. Mother later filed this petition requesting the return of Child to her custody. The trial court refused, instead finding that Father was the more fit parent and awarding him permanent custody. Mother appealed this decision. We affirm.

Estate of Nan Francis vs. Karl Francis
M2000-01110-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Leonard W. Martin
This appeal involves a dispute between a widow and her stepson regarding the disposition of a jointly owned certificate of deposit. After her stepson liquidated the certificate of deposit and used the proceeds to obtain another certificate of deposit in his own name, the widow filed suit in the Chancery Court for Cheatham County seeking her share of the funds. The stepson filed a counterclaim, alleging that the widow had contributed to his father's death by failing to provide needed medical care and seeking reimbursement for his father's funeral expenses. The widow died while the suit was pending, and her estate was substituted as a party. After dismissing the stepson's wrongful death claim, the trial court determined that the widow's estate and her stepson should receive equal shares of the proceeds of the account remaining after the payment of a joint debt of the widow's husband and her stepson and that the widow's estate should reimburse the stepson for the expenses he incurred in connection with his father's funeral. On this appeal, the widow's estate asserts that the trial court erred by ordering that the funds in the account be used to repay the joint debt and by ordering it to reimburse the stepson for his father's funeral expenses. We have determined that the trial court properly distributed the proceeds of the deposit account. However, we have also determined that the trial court erred by directing the widow's estate to reimburse the stepson for his father's funeral expenses.

Virnie Fulks vs. J. Hulan Watson, et al
M1999-02800-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Don R. Ash
This declaratory judgment action was filed by a dissatisfied school system employee who was transferred from his position as Manager of Property, Plant, and Maintenance to the position of maintenance worker and ultimately was informed that he would not be rehired. The employee claimed these employment actions were improper because he was tenured and certified. He also sought additional compensation or compensatory time for extra hours he worked. The trial court determined that the employee was not tenured, could be transferred, and was entitled to only a limited amount of compensatory time. The court also found that the superintendent had authority not to renew the employment with proper notice, but that sufficient notice of nonrenewal had not been provided. We affirm.

In matter of Hannah Parlow
W2000-01462-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George E. Blancett
After paternity was established and Mother was granted custody of minor daughter, Father filed petition to change custody on the ground of material change of circumstances consisting of Mother's remarriage to an allegedly violent man, and Mother's intention to move with the child out of the state. The juvenile referee denied the petition and, upon a de novo trial before a special juvenile judge of the juvenile court, Father's petition was denied. Father has appealed. We affirm.

Robert Richardson vs. Deborah Richardson
W2000-02374-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Robert A. Lanier

Robert Richardson vs. Deborah Richardson
W2000-02374-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Robert A. Lanier

Mary Louise Goodman Case, v. Billy Ray Case
M2000-00547-COA-R3-CV
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Judge Clara W. Byrd

This is a divorce case. The parties were married for twenty-five years and had no children. The wife was employed full-time and had a pension, and the husband was unemployed and disabled. The trial court granted a divorce to the wife on the grounds of inappropriate marital conduct by the husband, classified and divided the marital property without determining the value of the wife's pension, and made no provision for spousal support for the husband. The husband appeals. We affirm the grant of the divorce to the wife and affirm the decision not to award alimony to the husband. We reverse in part and remand for the trial court to classify the wife's pension plan as marital property, determine its value, and equitably divide it between the parties.

James L. Kirchner vs. Jacqueline Kirchner
M2000-02102-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Chancellor Carol A. Catalano

The trial court granted the husband a divorce, divided his military pension between the parties, and awarded the wife rehabilitative alimony. The wife argued on appeal that she should have been given a greater share of the husband's pension, and that the alimony award was inadequate. We affirm the property division and the amount of the alimony award, but remand this case to the trial court for a determination of whether a change of circumstances would entitle the wife to an extension in the duration of the award.

Wessington House Apartments v. Ashley Clinard
M1999-01029-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Thomas Goodall

Appellee, a privately owned, government subsidized apartment complex filed an unlawful detainer action seeking to evict appellant, Ashley Clinard, after a small amount of marijuana was found in her apartment. A guest admitted to having the marijuana despite Ms. Clinard's expressed prohibition against drugs in her apartment. The circuit court entered a judgment for possession of the premises against the defendant, interpreting provisions of the lease, one required by federal law and the other allowed by Tennessee law, to permit eviction of a tenant for drug related actions of a guest, even without the knowledge of the tenant. Based upon the Tennessee Supreme Court's decision in Memphis Housing Authority v. Thompson, 38 S.W.3d 504 (Tenn. 2001), holding that a tenant may not be evicted for drug related criminal activities of a guest, under federally-required lease provisions, unless the tenant knew or should have known of the activity and failed to take reasonable steps to prevent it, and because the evidence shows that Ms. Clinard had no reason to know that her guest had marijuana in her apartment, we conclude the eviction based on that provision must be reversed. Additionally, because we find that temporary mere presence of a small amount of marijuana does not constitute "a violent act" or "a real and present danger to the health, safety or welfare of the life or property of other tenants or persons," we conclude that state law does not authorize the summary eviction. Accordingly, we reverse the trial court.

IN RE: Guardianship of Courtney Warner Hodges
W2000-01424-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Donn Southern

This appeal arises from the deed and devise of property to Courtney Warner Hodges, a minor, by her great grandmother, now deceased. The Appellee brought a petition for appointment of a guardian for Courtney in the Probate Court of Shelby County. The petition stated that Courtney needed a guardian to represent her interests and collect and invest her income from the property. The petition also stated that the income interest to Courtney was not encumbered by trust. Following a hearing, the trial court entered an order for management of minor's estate. The trial court found that the evidence was insufficient to impose oral trusts upon the property.

In the Matter of: A.M.B., D.O.B. 6-13-95, A Child Under Eighteen (18) Years of Age
M2000-01130-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge John P. Hudson

The only question involved in this appeal is whether it was in the best interests of a minor child to terminate the parental rights of the child's mother. The Juvenile Court of Putnam County found that fact against the mother. We affirm.

Ruth Marie Holland (Beddingfield) v. Maybron Hayes Holland, Jr.
M1999-02791-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Jim T. Hamilton

This appeal stems from a divorced couple's decision to modify the terms of an agreed order regarding the payment of their marital debt. Almost six years after the parties were divorced in the Chancery Court for Maury County, the husband agreed to release the wife from her obligation to pay a portion of the marital debt in return for her agreement to use her credit to help him purchase a new truck. After the wife repossessed the husband's new truck, the husband requested the trial court to enforce the original agreed order. The trial court determined that the original agreed order remained valid and awarded the husband $18,944 representing the payments the wife should have made under the agreed order. The wife asserts on this appeal that the parties' agreement to modify the agreed order was valid and that she had performed her obligations under the agreement. We agree and, accordingly, reverse the judgment for the husband and direct the trial court to enter an order releasing the wife from her obligation under the agreed order.

Paula C. Bencriscutto, v. Lamesia Simmons and Brooke A. Lucas, v. Lamesia Simmons
M2000-01816-COA-R3-CV
Authoring Judge: Judge J. S. Steve Daniel
Trial Court Judge: Judge Walter C. Kurtz

This consolidated appeal concerns a multiple vehicle automobile collision which occurred during interstate rush hour traffic in Nashville. Lamesia A. Simmons' vehicle came into contact with the rear portion of Paula C. Bencriscutto's vehicle during an attempted lane change. This impact then caused the Bencriscutto vehicle to come into contact with Brooke A. Lucas' vehicle. Lawsuits were instituted in the Circuit Court of Davidson County by both Lucas and Bencriscutto against Simmons to recover damages associated with the collision. These suits were consolidated for trial and this subsequent appeal. At the close of the Plaintiffs' proof the court directed a verdict in favor of the plaintiffs and against Simmons. The issue of damages was then submitted to the jury with a verdict of $9,947.69 being returned in favor of Bencriscutto and in the amount of $5,482.50 for Lucus. Ms. Simmons appeals insisting that the trial court erred in granting the directed verdict. We affirm the action of the trial court in directing the verdict and the damage award.

Betty L. Johnson, et al., v. Charles S. Settle, M.D., et al.
M1999-01237-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Thomas W. Brothers

This is an appeal of a jury verdict based on personal injuries plaintiff received as a result of the wrong acetic acid solution being applied during a colposcopy. Metro Medical Supply, Inc., the supplier of the acid, appeals the trial court's decisions on post trial motions and the amount of the remittitur. Among other grounds, Metro Medical asserts that it is not liable because any acts or omissions on its part were too remote and that there were intervening superceding causes that were the legal and proximate cause of plaintiff's injuries. We agree, and for the reasons below, we find that Metro Medical was not legally liable to plaintiffs and any negligence on its part was superceded by unforeseeable intervening causes. Accordingly, the judgment against Metro Medical Supply, Inc. is reversed.