COURT OF APPEALS OPINIONS

Auto Credit of Nashville v. Melissa Wimmer - Dissenting
M2005-00978-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge C. L. Rogers

I respectfully dissent from the majority’s conclusion that Auto Credit failed to give Ms. Wimmer reasonable notice of the scheduled sale of the collateral.

Leonard Frazier v. Donal Campbell, et al.
W2006-00031-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Arnold B. Goldin

This appeal involves a petition for writ of certiorari filed by a state prisoner. After drugs were discovered in the inmate’s incoming mail, he was sentenced to punitive segregation. He sought review of his conviction in the Shelby County Chancery Court, which later dismissed his case without prejudice for lack of prosecution. The inmate filed a notice of appeal which we have determined was untimely and therefore a nullity. As a result, we must dismiss this appeal without considering the issues presented by the Petitioner.

Alvin King v. Shelby County Government Civil Service Merit Board
W2006-01079-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Arnold B. Goldin

Employment of a ShelbyCountyDeputy Sheriff was terminated and the decision was upheld by the Shelby County Civil Service Merit Board. The employee filed a petition for writ of certiorari in the Chancery Court of Shelby County. The administrative record was duly filed in the trial court.
Subsequently, the chancery court entered an order denying writ of certiorari. We vacate the trial court’s order and remand for further proceedings.

In Re: The Estate of Marjorie Louise Brevard, Decedent, W. Terry Barlowe, Proponent-Appellant, v. Dorothy Brevard and The Estate of John Brevard, Contestants-Appellees
E2005-01378-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Richard R. Vance

The Trial Court granted contestants of a Will summary judgment, voiding the Will. On appeal, we vacate the summary judgment.

Louise Spann et al. v. American Express Travel Related Services Company, Inc. et al.
M2004-02786-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Timothy L. Easter

This appeal involves a dispute between a credit and charge card issuer and two cardholders regarding allegedly unauthorized charges to their accounts by entities affiliated with the issuer. The cardholders filed a class action complaint in the Circuit Court for Williamson County asserting that the practice of charging them for goods and services they did not agree to purchase constituted an unfair and deceptive trade practice prohibited by various state consumer protection laws and gave rise to causes of action for negligent and fraudulent misrepresentation, conversion, and unjust enrichment. The issuer and its affiliates filed a motion to compel separate arbitrations against each cardholder in accordance with the class arbitration waiver clause of the arbitration provision in the cardmember agreements. The cardholders conceded that they were required to arbitrate their claims but asked the trial court to strike the class arbitration waiver clause as unconscionable. Siding with the cardholders, the trial court struck the class arbitration waiver clause and granted the motion to compel arbitration. The issuer and its affiliates appealed. We have concluded that the trial court did not err by granting the motion to compel arbitration. However, we have also concluded that the trial court erred by finding the class arbitration waiver clause unconscionable under Utah law.

James W. McDonnell, Jr., et al. v. Conseco Life Insurance Company, et al.
W2005-02630-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Kay S. Robilio

Plaintiffs James W. McDonnell, Jr., Faith McDonnell Campbell, Anne McDonnell Durell, and James W. McDonnell, III, appeal the trial court’s grant of summary judgment holding that their causes of action are barred by applicable statutes of limitation. Because we find that the trial court failed to execute a final order disposing of all of Plaintiffs’ asserted causes of action, we dismiss this appeal for lack of subject matter jurisdiction under Rule 3(a) of the Tennessee Rules of Appellate Procedure.

Greg Landaiche, et ux v. Jerry Jenkins, et ux, et al
E2005-01357-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor Frank V. Williams, III

The Trial Court held that the easement at issue in this case had been abandoned. On appeal, we affirm.

Douglas Martin v. Peggy Sue Martin Moats
M2004-01921-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Carol L. Soloman

Mother appeals finding of contempt for failure to make child support payments and argues that the trial court failed to make the requisite finding regarding her ability to pay. Because there was no evidence introduced to show Mother had the ability to pay, we reverse.

Jerry Alan Taylor, by and through his next friend, Kay Taylor Gneiwek v. Jackson-Madison County General Hospital District, et al.
W2005-02471-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Donald H. Allen

Defendant Jackson-Madison County General Hospital District (“Defendant”) appeals a judgment awarding damage for malpractice to Plaintiff Kay Gneiwek (“Plaintiff”) as administrator of the estate of Jerry Alan Taylor. Defendant raises issues pertaining to the competency of Plaintiff’s expert witness, Dr. Douglas Harkrider, M.D., to provide testimony in this case, and further argues that Dr. Harkrider’s testimony failed to establish proximate causation as required under Section 29-26-115 of the Tennessee Code. We affirm in part and reverse in part.

In Re: The Adoption of a Male Child, D.P.E.
E2005-02865-COA-R3-PT
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor John F. Weaver

This is a parental termination case. Before trial, the trial court inquired if the parties wanted a guardian ad litem appointed to represent the interests of the minor child. The parties indicated that no guardian ad litem was needed. After a contested hearing, the trial court terminated the parental
rights of both parents. The sole issue we address in this appeal is whether the trial court was required to appoint a guardian ad litem for the child when the parties did not request the appointment of one. After careful review, it is our determination that because this was a contested parental
termination proceeding, the trial court was required to appoint a guardian ad litem for the minor child pursuant to Tenn. S. Ct. R. 13 §1(d)2(D). This was not a matter that could be waived by the parties.  Therefore, we vacate the judgment of the trial court and remand for appointment of a guardian ad
litem and a trial on the merits.

Claudia Henneberry and husband, Scott Henneberry v. John (Randy) Simoneaux and wife, Mrs. John (Randy) Simoneaux
M2005-02032-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Russell Heldman

Plaintiffs sued parents of minor child for damages for injuries caused by minor child. The Trial Court granted summary judgment. We affirm.

George Jerles, et al. v. Margie Phillips, et al.
M2005-1494-COA-R3-CV
Authoring Judge: Presiding Judge, W. Frank Crawford
Trial Court Judge: Chancellor Robert E. Burch

This case arises from a foreclosure on real property. The Appellants purchased the property from Appellees. Appellees financed the property and the parties executed a promissory note and deed of trust. The Appellants fell behind on their payments and the Appellees accelerated the debt pursuant to the terms of the Note, and ultimately foreclosed on the property. The Appellants filed suit for, inter alia, wrongful foreclosure. The trial court granted partial summary judgment in favor of Appellees, and denied Appellants’ Tenn. R. Civ. P. 59.04 motion to alter or amend the judgment.  Upon disposal of all other claims, the Judgment became final. Appellants appeal. We affirm.

Columbia Gulf Transmission Company v. The Governors Club Property Owners Association, et al.
M2005-01193-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Russell Heldman

The owner of a perpetual natural gas pipeline right-of-way easement filed this Declaratory Judgement action to resolve a dispute with the fee simple owners regarding its right of ingress and egress to replace, upgrade and maintain existing underground pipelines. The trial court declared the rights of the gas company were clearly and unambiguously stated in the grant of easement, that it had the right of ingress and egress stated in the Complaint and enjoined the defendants from obstructing or interfering with those rights. The defendants appeal contending the time and manner of the exercise of the right of easement was ambiguous in the grant, and that the court erred by failing to consider the undue burden on the defendants caused by the time the work was scheduled. Finding no error, we affirm.

State of Tennessee, ex rel., Karen Leigh Chunn v. Donnie Lee Coggins
W2005-02231-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Special Judge George E. Blancett

This appeal is from an order of the trial court denying Appellant’s motion for a continuance.  We affirm.

Michael Mosby v. Roland Colson, et al.
W2006-00490-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Joseph H. Walker, III

The plaintiff, an inmate in the custody of the Tennessee Department of Correction, filed a pro se lawsuit against numerous prison officials and personnel of the department pursuant to 42 U.S.C. § 1983 in the Circuit Court of Lauderdale County, Tennessee. Therein, the plaintiff complained that prison officials terminated his prison job in retaliation for his filing numerous grievances against them. The plaintiff alleged violations of the United States Constitution, Tennessee statutes, and
various policies of the Tennessee Department of Correction. In response, the attorney general, acting on behalf of the defendants, filed a motion to dismiss for failure to state a claim for which relief could be granted. In turn, the plaintiff filed what amount to numerous amended complaints to allege new allegations or to add additional defendants. The trial court subsequently granted the defendants’ motion to dismiss and denied the plaintiff leave to amend his complaint. The trial court also held that the plaintiff could proceed in forma pauperis on appeal. On appeal, the plaintiff asks this Court to review whether the trial court erred in (1) granting the defendants’ motion to dismiss, (2) denying
the plaintiff leave to amend his complaint, (3) denying the plaintiff’s request for injunctive relief.  The plaintiff also asks this Court to determine whether he should be allowed to proceed in form a pauperis despite the fact that the federal courts previously dismissed three or more of his lawsuits for being frivolous or failing to state a claim. We affirm the trial court’s decisions to grant the defendants’ motion to dismiss and to deny the plaintiff’s request for injunctive relief. While the
plaintiff was entitled to file an amended complaint without leave of court, we find no error in the trial court’s refusal to allow the plaintiff to submit his amended complaints. Finally, we hold that his lawsuit should have been dismissed at the trial level pursuant to section 41-21-801 et seq. of the Tennessee Code, which governs lawsuits filed by inmates. Accordingly, we find that the present appeal is so utterly lacking in merit that we remand this case to the trial court for the assessment of all costs, expenses, and fees associated with this lawsuit against the plaintiff in accordance with section 41-21-801 et seq. of the Tennessee Code.

Kimberly Kay Allen, et al. v. John Day, et al. and Gannett Satellite Information Network, Inc. et al. v. Powers Management, LLC - Concurring
M2005-00989-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Because of the troubling potential for overexpansion of the “functional equivalency” rationale established in Cherokee and relied upon herein, I write separately to identify the reason for my concurrence. The key to determining when a private entity, through a relationship with a government, subjects its records to public inspection lies, in the first instance, in the analysis of whether the entity is performing a governmental function.

Kimberly Kay Allen, et al. v. John Day, et al. and Gannett Satellite Information Network, Inc. et al. v. Powers Management, LLC
M2005-00989-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

A privately-held limited liability company appeals the decision of the trial court which found that the company was the functional equivalent of a government agency in its management of a publically-owned facility thus making its documents subject to the Public Records Act. The judgment of the trial court is affirmed in part, reversed in part and remanded.

Andrew Blake Moorehead v. Stacy Christine Fugitt (Moorehead) - Dissenting
W2005-02711-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor James F. Butler

I dissent from the majority opinion in this case because, in my view, the parenting plan clearly and unequivocally designated Father as the primary residential parent. Therefore, I believe it was necessary for the trial court to determine whether there had been a material change of circumstances and, if so, whether a modification would be in the child’s best interest. Both parties sought to modify the permanent parenting plan. 

Andrew Blake Moorehead v. Stacy Christine Fugitt (Moorehead)
W2005-02711-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor James F. Butler

This is a post-divorce case involving child custody. The parties divorced with an agreed parenting plan for their minor child in which the parties shared equally in residential parenting time and decision-making. When both parties remarried and the child approached school age, the father filed a petition seeking to have the child reside primarily with him. The mother then filed a similar petition. After a comparative fitness analysis, the trial court designated the mother as the primary residential parent. The father now appeals. We affirm, finding that the evidence does not preponderate against the trial court’s decision.

Jerry T. Troup, Jr. v. Fischer Steel Corporation
W2005-00913-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge D'Army Bailey

This is a personal injury action involving comparative fault. At a warehouse construction site, the defendant steel subcontractor cut a hole in the roof of the partially constructed warehouse. A temporary cover was put over the hole. A week later, the plaintiff employee of a roofing subcontractor fell through the hole and sustained serious injuries. The plaintiff received full
workers’ compensation benefits from his immediate employer, the roofing subcontractor.  Subsequently, the plaintiff filed a personal injury lawsuit against the defendant steel subcontractor.  The steel subcontractor then sought to assert fault against the general contractor in charge of the
entire warehouse construction project. The steel subcontractor filed a motion in limine to assert fault against the nonparty general contractor. The motion was denied and the case proceeded to a jury trial. At the conclusion of the trial, the jury awarded the plaintiff $546,000. The defendant steel subcontractor now appeals, asserting numerous errors by the trial court, including error in precluding the steel subcontractor from asserting fault against the general contractor. We reverse the trial court’s denial of the motion in limine, vacate the judgment, and remand, finding that the steel
subcontractor should have been permitted to assert fault against the general contractor.

Shawn Humphrey, et al. v. Tomkats, Inc., et al.
M2005-00867-COA-R3-CV
Authoring Judge: Judge Donald P. Harris, Sr.
Trial Court Judge: Judge Marietta M. Shipley

On this appeal, the Appellant, TomKats, Inc., challenges the propriety of the trial court's awarding Appellee, Shawn Humphrey, judgment for breach of an oral agreement to pay commissions due for sales of sponsorships for an event called Dancin' in the District during the year 1999, failure to pay commissions due on sponsorship and vendor booth revenues pursuant to a written agreement for same event in the year 2000, the subsequent breach of that agreement for the years 2001 and 2002 and dismissal of Appellant's counterclaim for breach of a non-compete agreement and breach of fiduciary responsibilities. Humphrey challenges trial court's findings with regard to the amount of damages for commissions awarded for 1999 and the failure to award prejudgment interest on the judgment for breach of contract. We affirm, as modified.

John Wesley Campbell v. Sheila Darlene Campbell
M2005-00288-COA-R3-CV
Authoring Judge: Judge Donald P. Harris, Sr.
Trial Court Judge: Chancellor John Wiley Rollins

This is an appeal from a divorce action in which the Appellee, Sheila Darlene Campbell (Ms. Campbell), was awarded 73.6 percent of the parties marital property together with alimony in solido in the amount of $500.00 per month for a period of five years. The Appellant, John Wesley Campbell (Mr. Campbell) has appealed both the division of the marital assets and awarding of alimony. Ms. Campbell appeals the refusal of the trial court to require that Mr. Campbell pay her attorneys' fees and alleges the trial court erred in equally dividing the court costs. We modify the judgment of the trial court to delete the requirement that Mr. Campbell pay alimony in solido and affirm the trial court in all other respects.

State of Tennessee, Department of Children's Services v. Daniel R. Howard in the Matter of W.A.H. & A.N.H.
W2006-00585-COA-R3-PT
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor D. J. Alissandratos

This case stems from a petition to terminate a father’s parental rights. At trial, the chancery court terminated the father’s parental rights as to his two minor children finding that grounds for terminating the father’s parental rights existed under sections 36-1-113(g)(1) and 36-1-113(g)(3) of
the Tennessee Code by clear and convincing evidence and that it was in the best interest of the children to terminate the father’s parental rights. On appeal, the State of Tennessee, Department of Children’s Services concedes that there was not clear and convincing evidence to support a finding that grounds for terminating the father’s parental rights under section 36-1-113(g)(1) existed.  However, it asserts on appeal that father’s narcissistic personality disorder was sufficient evidence to support a finding that the grounds for terminating the father’s parental rights pursuant to section 36-1-113(g)(3) of the Tennessee Code existed. On appeal, the father asserts that the Department of Children’s Services failed to make reasonable efforts to reunite his family, and thus, his parental rights may not be terminated as yet under section 36-1-113(g)(3). We reverse.

David G. Mills v. Shelby County Election Commission, et al.
W2005-02883-COA-R3-CV
Authoring Judge: Presiding Judge, W. Frank Crawford
Trial Court Judge: Chancellor D. J. Alissandratos

Plaintiff/Appellant filed suit under the Tennessee Declaratory Judgment Act asserting that the legislation authorizing the use of electronic voting machines in some jurisdictions violated Art.  I, § 5 and Art. IV, § 1 of the Tennessee Constitution. The Shelby County Chancery Court dismissed Plaintiff/Appellant’s complaint pursuant to Tenn. R. Civ. P. 12.02(6). We affirm.

Rodney Shane Curtis v. Christy Suzanne Hill (Curtis)
M2005-2230-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor Jim T. Hamilton

This is a post-divorce change of custody case. The trial court changed custody of the parties’ two minor children from the mother to the father. We hold that the evidence preponderates against the trial court’s finding that there had been a material change of circumstances to justify a change in
custody in the absence of proof that the mother’s sexual indiscretions and other alleged misconduct had affected or would affect the children in an adverse way. We therefore reverse the judgment of the trial court.