COURT OF APPEALS OPINIONS

Eileen Dunloy v. Brian Dunloy
M2000-03103-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Lee Russell

Charles Moore v. Clyde Green
M2000-03203-COA-R3-CV
Authoring Judge: Judge John J. Maddux, Jr.
Trial Court Judge: Frank G. Clement, Jr.
This appeal involves a dispute concerning the estate of Nellie K. Ellis. The plaintiffs, Charles W. Moore, Linda Moore Maggart (Executrix of the estate of Herschel Moore, deceased), Ray Swing, Juantia Swing Sircy, Jeane S. Pennington, and James E. Swing, contested the decision to admit the will to probate. Their position is that the will is invalid because of a train of circumstances which shows the will was (1) not properly executed, (2) the testator lacked sufficient mental capacity, or (3) the beneficiary exercised undue influence over the testator. The trial court granted the defendant Clyde Green summary judgment, holding that the will was properly executed and that the plaintiffs did not adequately prove undue influence or lack of mental capacity. We affirm the trial court's decision.

Eileen Dunloy v. Brian Dunloy
M2000-03103-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Lee Russell

M2001-00095-COA-R3-CV
M2001-00095-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Frank G. Clement, Jr.

James E. Gunter v. U.C.H.R.A. and Kristi A. Poore
M1999-01591-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Conrad E. Troutman, Jr.
In this appeal, the appellant, Mr. Gunter, filed a claim for personal injury and property damages against a local governmental entity in general sessions court. The governmental entity orally moved to dismiss citing the Tennessee Governmental Tort Liability Act, which grants exclusive jurisdiction over these cases to the circuit court. The general sessions court denied the motion and transferred the case to circuit court, and that court dismissed the action based on the statute of limitations. Mr. Gunter now appeals the dismissal of his case by the circuit court.

Rene Mercer, et al vs. HCA Health Services of TN, Inc.
M2000-02785-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Barbara N. Haynes
A widow claimed that her husband's suicide was caused by the negligence of the defendant hospital and the defendant psychiatrist in releasing him prematurely from involuntary commitment. The trial court granted summary judgment to the defendants, finding that the hospital was obligated to release the patient when ordered to do so by the psychiatrist, and that the psychiatrist was entitled to absolute immunity for actions undertaken under the involuntary commitment statutes. We reverse the trial court.

Raymond Workman, et ux v. Wal-Mart Stores East, Inc.
M2001-00664-COA-R3-CV
Authoring Judge: Judge J. S. Steve Daniel
Trial Court Judge: Robert L. Holloway
This is an appeal by Wal-Mart, Inc., from a jury verdict and a judgment totaling $30,000 in favor of Raymond D. Workman and Nola Ann Workman, for damages caused by a slip and fall Mr. Workman suffered at Wal-Mart's store. Wal-Mart, Inc. has appealed this judgment insisting that the trial court erred by not setting aside the jury verdict and directing a verdict in their favor, or not granting a new trial. For the reasons stated in this opinion, we affirm the trial court's decision and remand the case.

State of Tennessee v. David M. Black
M2000-02935-COA-R3-CD
Trial Court Judge: Clara W. Byrd

State v. David Black
M2000-02935-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Clara W. Byrd
The State has petitioned this court to rehear its decision in this case. The state also requested, and was twice granted, additional time to supplement or correct the appellate record to include an amended judgment reflecting the details of Mr. Black's 1997 conviction and sentencing. The State has now filed this amended judgment properly certified by the trial court which heard Mr. Black's petition for restoration of citizenship. The amended judgment was introduced at the hearing on the restoration petition but was not included in the record in the appeal. Because the trial judge has certified that the amended judgment was introduced and considered in the hearing, we grant the State's motion to supplement the record.

Oliver Randolph, et al vs. Coffee County Beer Bd.
M2001-00077-COA-R3-CV
Authoring Judge: Judge J. S. Steve Daniel
Trial Court Judge: John W. Rollins
This is an appeal by the Coffee County Beer Board from a decision of the Coffee County Circuit Court ordering the Beer Board to issue permits to Oliver Randolph and Susan Nichols. The trial court concluded that the Coffee County Beer Board regulation prohibiting the issuance of a beer permit to an applicant within two thousand feet of a school or church was void because of discriminatory application of this regulation. The County has appealed this decision insisting that it had uniformly enforced its distance rule including a grandfather provision which authorized the reissuance of permits to nonconforming locations who had enjoyed such a privilege prior to the readoption of the county resolution in 1980. For the reasons stated in this opinion, we affirm the trial court's decision and remand the case.

BellSouth Publishing v. Ruth Johnson, Commissioner of Revenue
M2000-03091-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Claudia C. Bonnyman
The State Commissioner of Revenue imposed a use tax on the cost price of telephone directories produced in Alabama and distributed in Tennessee by BellSouth Advertising and Publishing Company ("BAPCO"). BAPCO claimed a credit for sales taxes it paid in Alabama when it purchased the photocompositions used to print the directories. The Chancery Court of Davidson County granted summary judgment to the Commissioner. We affirm the lower court's decision because BAPCO did not show that it was entitled to the credit and the Tennessee use tax in this case does not violate the Commerce Clause of the United States Constitution.

Kenneth Varney v. Heather Roemer
M2000-03234-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Arthur E. Mcclellan
This is a post-divorce custody case in which Father alleged a change of circumstances due to step-father disciplining the two minor children in an inappropriate manner, Mother not being able to provide a stable and consistent home and school environment, the children experiencing emotional problems while in Mother's home, and Mother voluntarily relinquishing custody. The trial court found that Father failed to demonstrate a change of circumstances warranting change of custody. Although the two children had been living with Father, the court refused to change the initial award of custody to Mother. We find that the evidence preponderates against the trial court's determination regarding changes in circumstances and that, by focusing on one alleged incident of inappropriate discipline, the court failed to consider other circumstances relevant to the inquiry.

Thomas Harrison, et al. v. Earl Laursen, et al.
M2001-00073-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Robert L. Jones
This appeal involves pre-judgment interest on unpaid attorney's fees. The defendants owed the law firm attorney's fees alleged to be in the amount of $16,544.52 that accrued between November 1990 to April 1993. In 1996, the parties orally agreed to a lesser payment of $7,000.00 in settlement of the larger debt. The defendants paid $1,500.00 but failed to pay the remaining balance owed. The trial court ordered Defendants to pay pre-judgment interest on the unpaid fees and Defendants appeal. We affirm.

City of Lebanon vs. Raymond Harris
M1999-01025-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Clara W. Byrd
This case involves the zoning and sign ordinances of Lebanon, Tennessee. Mr. Harris had placed small outdoor insulated metal storage buildings at several properties within the city of Lebanon. The buildings had on the sides information advertising his company and a phone number to contact him for information to buy or rent one of these buildings. He was fined for violations of the City of Lebanon ordinance allowing only one principal building and its customary accessory buildings on a lot and for violation of the sign ordinance. The circuit court reversed the city court's fines and held that the buildings were not principal buildings and that they were not portable signs. For the reasons below, we affirm the circuit court's decision in part and reverse in part.

John T. King v. Anne B. Pope, Commissioner of The Tennessee
M2000-02127-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Ellen Hobbs Lyle

Thomas Roache vs. Justine Bourisaw
M2000-02651-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol A. Catalano
This case involves a non-custodial parent's petition for change of custody. The original marital dissolution agreement granted the mother full custody of the child and the father alternate weekends and holidays and two weeks each summer. The mother later moved to Missouri, and the parties adjusted visitation accordingly. Later, the father filed and was granted a contempt motion due to the mother's failure to allow him to see the child. He subsequently filed a motion for change of custody which was also granted. The court found that the circumstances warranted the change of custody. The mother appeals. We affirm the trial court's change of custody.

Kurt Seraphine v. Aqua Bath
M2000-02662-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Claudia C. Bonnyman
This is an appeal from the grant of Appellees' motion for summary judgment. Appellant, a former employee of Appellee company, brought various claims against the company, and the company's top executives. Against the company, Appellant sought damages and specific performance based on an alleged breach of a stock option agreement and damages for breach of the implied duty of good faith and fair dealing. Against the individual defendants, Appellant sued on claims of statutory and common law inducement to breach. Appellees counterclaimed for a declaratory judgment that Appellant had no option to purchase shares in the company because the option expired when his employment terminated. Summary judgment was granted on Appellees' declaratory judgment claim and Appellant's claims were dismissed. We reverse the trial court's holding that the stock option expired with termination of employment, but find Appellant has not demonstrated a breach of the stock option agreement or his right to any remedy thereunder. We affirm the trial court's grant of summary judgment on the breach of duty of good faith and intentional interference claims.

Pero's Steak and Spaghetti House and Louis Inn, v. Elizabeth Jean Hinkle Lee and First American National Bank and First Tennessee Bank National Association
E2001-00254-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Dale C. Workman

Plaintiffs action against First Tennessee Bank National Association (“Bank”) was held to be time-barred by the Trial Judge pursuant to Tenn. Code Ann. §47-3-118. Plaintiffs have appealed to this Court.

Theresa Ann Sapp Staples v. Richard Charles Staples
M2000-02838-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Judge C. L. Rogers

This is a post-judgment domestic relations case. The principal alleged issue is whether a non-custodial parent may be judicially coerced to exercise visitation privileges. The appealed Order is not imperative and the asserted issue is not a genuine one. Because the judgment is marginally ambiguous we modify it to incorporate a measure of fairness.

Ahmad Vakili, et al., v. Randy Hawkersmith, et al.
M2000-01402-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor John W. Rollins

This case arises from a home construction contract entered into by Appellants and Appellee. Appellants filed a complaint against Appellee in the Chancery Court for Coffee County for breach of contract. Appellee filed an answer and counter-complaint. The trial court found that the contract was a cost-plus contract with no cap or ceiling on the price, and rendered judgment in favor of Appellee for $26,945.10. Appellants appeal. We affirm the trial court.

Timothy Dale Rieder v. Patricia Ann Cawley Rieder
M2000-02466-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Judge Jeffrey F. Stewart

The mother of a seven-year-old daughter asserts that the court awarded custody of the child to the father because the mother is homosexual. We find, however, that the court did not base its award on sexual orientation and that the evidence in the record supports the award of custody to the father. Therefore, we affirm.

Brenda Jane (Thompson) Turnbo v. Joe LarryTurnbo
M2000-02415-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Judge Stella L. Hargrove

A divorce judgment rendered June 5, 1992 required the appellant to pay, inter alia, the sum of $185,000 to his wife "as a fair and equitable division of the marital property." The appellant elected recalcitrance rather than compliance, and failed to pay. He was found in civil contempt in September 2000 and ordered to be confined until he purged himself of contempt. We affirm.

Chuck Robertson v. Melvin G. George, et al.
M2000-02661-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This lawsuit arises out of a real estate contract. The plaintiff, Chuck Robertson, a residential home builder, contracted to purchase sixteen (16) lots from the defendant, Melvin George. After the parties entered into the contract, the plaintiff discovered that the official flood plain designation had been adjusted to include nine (9) of the lots the plaintiff contracted to purchase and filed suit on the theories of intentional misrepresentation, negligent misrepresentation, mutual mistake, unjust enrichment, and violation of the Tennessee Consumer Protection Act. The defendants filed a counter-complaint for breach of contract. The parties filed cross-motions for summary judgment. The trial court dismissed the plaintiff's action holding that the mistake was a mistake of law. We affirm in part, reverse in part, and remand.

K.S.O.H., et al v. J.W.B., Jr. In Re: Adoption of a Male Child
E2001-00055-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Carey E. Garrett

The mother ("Mother") and stepfather ("Stepfather") of a minor child ("Child") filed a Petition to Terminate the parental rights of the Child's biological father ("Father"). The Petition to Terminate alleged one ground for termination of Father's parental rights, abandonment. After three hearings, the Juvenile Court held that the Petition to Terminate should be dismissed because Mother and Stepfather failed to establish by clear and convincing evidence that Father had abandoned the Child and because termination of Father's parental rights would not be in the Child's best interests. Mother and Stepfather appeal. We affirm.

Susan R. Godfrey, et al., v. Jesus Ruiz, et al.
M2000-00101-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Barbara N. Haynes

This case arises from an automobile accident resulting in personal injuries to plaintiffs. The defendants, Mr. & Mrs. Ruiz, filed a motion for summary judgment on the grounds that their cousin, Mr. Corpus, was driving their vehicle without their permission or knowledge at the time of the accident. The trial court granted the motion and plaintiffs appeal. Plaintiffs assert that under Tenn. Code Ann. § 55-10-311, defendants are not entitled to summary judgment based solely on their own self-serving affidavits and depositions. We affirm the summary judgment