COURT OF APPEALS OPINIONS

Ronald D. McKinna, v. Lasco, Inc.
02A01-9604-CH-00083
Authoring Judge: Senior Judge William H. Inman

We have for consideration a thoughtful petition to re-hear in which the employer insists that our enquiry was abortive since we failed (1) to examine the proffered reason for the employee’s termination, (2) to examine the plaintiff’s evidence of pretext, and (3) to find that age discrimination was a motivating factor in the determination.

United American Bank of Memphis, v. Mylan Financial Services, Inc. and Stanley R. Waxman, Stanley R. Waxman, v. United American Bank of Memphis
02A01-9605-CV-00094
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Judge Janice M. Holder

This case involves an action to recover on a loan guarantee. The trial court entered a
judgment in favor of the plaintiff bank against the individual guarantor. We affirm.

Metropolitan Nashville Fire Fighters Association Local 763 and B.R. Hall, Jr., v. Metropolitan Government of Nashville and Davidson County, et al.
01A01-9701-CH-00019
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Irvin H. Gilcrease, Jr.

This case is before the Court on appeal from the Chancery Court of Davidson
County, Tennessee wherein a Motion for Summary Judgement made by the Defendants
was sustained by the Chancellor.

Jack Jordan, v. Frances J. Marchetti
01A01-9607-CH-00340
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Chancellor Cornelia A. Clark

This case involves an action for rescission of a deed to land allegedly procured through promissory fraud and duress. The trial court dismissed the case on the grounds that it had been brought after the expiration of the applicable statute of limitations. We reverse.

Paul Kevin Nelson, v. The Application Group, Inc.
01A01-9703-CV-00137
Authoring Judge: Judge William C. Koch, Jr.

I concur with the court’s conclusion that The Application Group, Inc. is entitled to Tenn. R. Civ. P. 60.02(1) relief under the facts of this case. However, I have prepared this separate opinion to state that I do not concur with the court’s sweeping conclusion that “Rule 60.02(1) relief should be granted when the lawyer realizes his [or her] oversight and takes steps to correct it.” I know of no precedent for the notion that efforts to correct an error, by themselves, are always enough to entitle a lawyer to post-judgment relief. They are only one of the many factors to consider when engaging in the fact-intensive analysis required by Tenn. R. Civ. P. 60.02(1).

Prism Partners, L.P., v. Michael D. Figlio, v. Prism Partners, L.P. Larry Cherry
01A01-9703-CV-00103
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Barbara N. Haynes

In this unlawful detainer action, Defendant Michael D. Figlio appeals the trial court’s final judgment which held that Plaintiff/Appellee Prism Partners, L.P., had free and clear 2 title to the subject property, ordered Figlio to vacate the subject property, and dismissed Figlio’s counterclaim for conspiracy. The trial court’s judgment also dismissed Figlio’s thirdparty complaint for fraud and conspiracy against Third-Party Defendant/Appellee Larry Cherry. For the reasons hereinafter stated, we affirm in part and reverse in part the trial court’s judgment, and we remand for further proceedings.

Patricia Ann Wolfe, Bette L. Roberts, Patricia Pelton, Odie L. Mann, Boyd Stubblefield, and Richard G. Ray vs. The University of Tennessee and the University of Tennessee Space Institute - Concurring
01A01-9611-CH-00514
Authoring Judge: Judge William C. Koch, Jr.

I concur with the results of the Court’s opinion. Based on my independent review of the evidence both in support of and in opposition to the motion for summary judgment, I have determined that the six plaintiffs have not produced evidence from which a jury could reasonably conclude that the reasons given by the University of Tennessee Space Institute for the adverse employment actions taken against each of the plaintiffs were pretextual or that the employment actions were taken for prohibited reasons.

In re: Ernest L. White, Conservatorship, v. Loretta DeLoach, Substitute Conservator
01A01-9704-PB-00154
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Frank G. Clement, Jr.

This appeal involves the adequacy of a conservator’s accounting of a disabled person’s estate. After the conservator filed her final accounting in the Probate Court of Davidson County, the personal representative of the disabled person’s estate objected to the accuracy and completeness of the accounting. The probate court conducted a bench trial and approved the conservator’s amended final accounting. On this appeal, the personal representative asserts that the final accounting was irregular and that the conservator has failed to account for all of the disabled person’s funds. We have determined that the conservator’s final accounting cannot be reconciled and, therefore, that the order approving the final accounting must be vacated.

Southern Rehabilitation Specialists, Inc., v. Ashland Healthcare Center, Inc., et. al.
01A01-9607-CH-00345
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Leonard W. Martin

Defendant Ashland Healthcare Center, Inc. (Ashland), appeals the judgment entered against it in this breach of contract action. The contract at issue was between Plaintiff/Appellee Southern Rehabilitation Specialists, Inc. (Southern Rehab), andOakmont Healthcare Center (Oakmont). In imposing liability against Ashland, the trial court ruled that Pete Prins, the administrator of Oakmont and an employee of third-party defendant Monarch Nursing Homes, Inc. (Monarch), had the authority to bind Ashland to the contract between Southern Rehab and Oakmont. For the reasons hereinafter stated, we reverse the judgment against Ashland and remand for further proceedings.

Knox County Education Association v. Knox County Board of Education, et al.
E2000-01019-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor John F. Weaver

This is an action brought by the Knox County Education Association seeking a declaratory judgment and injunctive relief against the Knox County Board of Education and its then-superintendent, Allen Morgan. The trial court found that provisions of a private act granting tenure to principals employed in the Knox County School System were repealed and superseded by the enactment in 1992 of a public act, the Education Improvement Act, and that the private act, to the extent that it conflicts with the general law, violates Article XI, Section 8 of the Tennessee Constitution. The trial court further found that Knox County principals are not members of the bargaining unit represented by the Knox County Education Association as to the subjects of performance, accountability, and contract renewal. The Knox County Education Association appeals, arguing (1) the trial court erred in finding that provisions of the private act were repealed by the Education Improvement Act and (2) the trial court erred in concluding that school principals are not members of the bargaining unit as to the subjects of performance, accountability, and contract renewal. We affirm.

Raymond Mueller v. Denise Mueller
M2001-00098-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Jeffrey S. Bivins
In this appeal of a divorce decree, the husband argues that the rehabilitative alimony awarded to the wife is excessive, and that his visitation schedule unnecessarily limits the time he can spend with his son. We affirm the award of rehabilitative alimony, but reduce its duration to three years. We also remand this case to the trial court for reconsideration of the visitation schedule.

Karmen Lane v. Richard Lane
M2000-01135-COA-R3-CV
Authoring Judge: Judge John A. Turnbull
Trial Court Judge: Muriel Robinson
This appeal challenges an award of child support which did not include private school tuition of the minor daughter, a division of property that did not take into account alleged dissipation of assets by the husband, a child support award that did not deviate upwards from the Guidelines because of lack of visitation, and a finding of criminal contempt. Also at issue is whether the trial court erred in awarding alimony in futuro rather than rehabilitative alimony. We affirm the judgment of the trial court with respect to all issues except to hold that pursuant to the Tennessee Child Support Guidelines, private school tuition is an "extraordinary educational expense" which husband obligor must pay.

State v. Stephen Bart Wood
M2001-00872-COA-R3-CD
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Steve R. Dozier
The General Sessions Court of Davidson County found the defendant guilty of thirty-six violations of an order of protection and ordered him to serve ten days for each violation. Each sentence was to be served consecutively and day-for-day. The defendant appealed to the Criminal Court and that court affirmed. We find that the Criminal Court lacked subject matter jurisdiction to hear the appeal, that the sentence should be vacated, and the cause remanded to the General Sessions Court for a review of the sentence for excessiveness in accordance with the guidelines we adopt in this opinion.

In Re: Kiersten Cierra Burchette
E2010-02132-COA-R3-JV
Authoring Judge: D. Michael Swiney, J.
Trial Court Judge: A. Benjamin Strand, Jr., Judge
This lawsuit involves whether custody of Kiersten Cierra Burchette (the "Child") should be changed from Carey A. Bible ("Mother") to Chadwick J. Burchette ("Father"). Father filed an emergency petition seeking custody. Father claimed, among other things, that the Child was being sexually abused by Mother's boyfriend. Although the emergency petition eventually was dismissed, the Juvenile Court did designate Father as the Child's primary residential parent. The Juvenile Court, however, specifically reserved ruling on who should pay certain medical expenses as well as a bill for the deposition of Father's private investigator. The Juvenile Court also reserved ruling on all child support issues. Mother appeals. We dismiss this appeal for lack of a final judgment.

Terminix International Co. v. Department of Labor
M2001-00174-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Irvin H. Kilcrease, Jr.
This matter is before the Court upon a petition seeking judicial review of our administrative order. The Petition was initiated in the Chancery Court of Davidson County, Tennessee, wherein the appellants challenged the jurisdiction of the Tennessee Department of Labor, Division of Occupational Safety and Health ("TOSHA") to conduct safety inspections concerning pesticide applicators (i.e., persons who apply pesticides) and to enforce such regulations. The Chancery Court ruled that the Tennessee Occupational Safety and Health Review Commission (TOSHA) has subject matter jurisdiction to conduct inspections and issue citations concerning the safety of pesticide applicators in the work place. We affirm.

Stacy Harris v. Thomas Hall
M2000-00784-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Jeffrey S. Bivins
This case was transferred to a judge in another county for "binding mediation," and the mediating judge entered an order dismissing the lawsuit and enjoining plaintiff from certain actions, including further litigation. The original trial court later denied the plaintiff's Tenn. R. Civ. P. 60.02 motion for relief from orders, and the plaintiff appealed. We find the trial court had no authority to order the case to any alternative dispute resolution procedure other than one established in Tenn. R. Sup. Ct. 31, that the mediating judge had no authority to dispose of the case and, consequently, all orders entered by that judge are void. We reverse the trial court's denial of Rule 60.02 relief, vacate orders entered in the court of the mediating judge, and remand for further proceedings.

Jackson-Madison County General Hospital District v. Health Facilities Commission
M1999-02804-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Irvin H. Kilcrease, Jr.
This appeal involves a dispute between two hospitals regarding one hospital's desire to expand its intensive care and open-heart surgery services. After Methodist Healthcare-Jackson Hospital applied to the Tennessee Health Facilities Commission for a certificate of need, Jackson-Madison County General Hospital District objected on the ground that the proposed services would unnecessarily duplicate services it was already providing. Even though the Commission denied the application, the Commission's staff issued the certificate of need after the Attorney General and Reporter opined that the Commission's vote on reconsideration was inconsistent with the Commission's enabling statute. Rather than pursuing a contested case hearing before the Commission, Jackson-Madison County filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County asserting that the Commission's vote to deny the certificate of need was proper and that one Commission member who voted to approve the certificate should have been disqualified because of a financial conflict of interest. The trial court granted the writ of certiorari but, following a hearing, dismissed the writ because Jackson-Madison County had not exhausted its administrative remedies. Jackson-Madison County appealed to this court. While this appeal was pending, Jackson-Madison County requested and received a contested case hearing before an administrative law judge sitting in place of the Commission. After the administrative law judge determined that the Commission's vote to deny Methodist Healthcare's application for a certificate of need was proper and that one of the Commission members who voted to grant the certificate of need should have been disqualified, Jackson-Madison County moved to dismiss its appeal. Methodist Healthcare opposed dismissing the appeal. We have determined that the trial court properly dismissed Jackson-Madison County's petition for writ of certiorari and that this appeal should be dismissed.

Trinity Industries, Inc. v. McKinnon Bridge Co., Inc.
M2000-00510-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Mccoy
An uncompleted highway bridge over the Tennessee River collapsed, triggering a lengthy and convoluted course of litigation between the parties involved in its construction. Litigation began when the company that fabricated the bridge's structural steel components sued the general contractor for non-payment on the contract. The general contractor filed a counter-claim which alleged that the fabricator had breached the contract by producing defective steel components that caused the collapse. The contractor named some of its other subcontractors as third party defendants, claiming that they also bore some responsibility for the collapse of the bridge. In a series of orders, the trial court dismissed the counterclaim and third party claims, and declared that its judgments were final for purposes of Tenn. R. Civ. P. Rule 54.02. After this court heard oral argument on the first of the Rule 54.02 appeals, but before it could issue an opinion, the trial court conducted a hearing on the merits of the steel fabricator's claim, and rendered a judgment in its favor. We affirm the judgment for the price of the steel and the judgment for the fabricator on the general contractor's counterclaim. We reverse the judgment dismissing the third party claims.

Robert Davidson vs. Charles Lindsey
W2000-02891-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Julian P. Guinn
This appeal arises from an automobile accident involving the Appellants and the Appellees in which the Appellee's wife was killed and the Appellee was seriously injured. The Appellee, individually and as administrator of the estate of his wife, and the Appellee's children filed a complaint in the Circuit Court of Henry County against the Appellants and three of the Appellees. Following a jury trial, the jury found that the Appellants were 100% liable for the accident and dismissed the claims against the three Appellees. The jury awarded the Appellee $1,250,000.00 and awarded the estate of the Appellee's wife $500,000.00. The trial court entered a judgment on the jury's verdict. The Appellants filed a motion for a new trial. The trial court denied the motion for a new trial.

Marlena Tilley vs. Gurpal Bindra
W2001-01157-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Lee Moore
This appeal arises from a medical malpractice claim brought by the Appellants against the Appellee in the Circuit Court of Dyer County. The Appellee filed a motion for summary judgment. Following the deposition of the Appellants' expert witness, the Appellee filed a renewed motion for summary judgment. The trial court granted the Appellee's motion for summary judgment and renewed motion for summary judgment. The Appellants appeal the grant of the Appellee's motion for summary judgment and renewed motion for summary judgment by the Circuit Court of Dyer County. For the reasons stated herein, we affirm the trial court's decision.

Charles Salsman vs. Texcor Indus.
W2001-00730-COA-R9-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Karen R. Williams
This appeal arises out of a petition filed in Tennessee to enroll a Texas judgment. In this case, the plaintiffs filed a petition to enroll the foreign judgment. While this was pending, the defendants filed a motion for leave to amend their answer to assert a counterclaim. Three days later, before the trial court had ruled on the motion to amend, the plaintiffs filed a notice of voluntary dismissal, including a proposed order stating that no counterclaim had been pled. The trial court entered the proposed order. Subsequently, in response to the defendants' motion, the trial court vacated its earlier order of dismissal and granted the defendants' motion to amend to assert the counterclaim. In this interlocutory appeal, we affirm, holding under Rule 41.01(1) of the Tennessee Rules of Civil Procedure that the proposed counterclaim attached to the motion to amend is considered a "pleaded" counterclaim, thereby permitting the defendants to elect to proceed on the counterclaim despite the plaintiffs' notice of voluntary dismissal.

Ragan/James Hinson vs. Kelli Gatton
W2001-01763-COA-R3-JV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: J. Steven Stafford
Father filed a petition to increase visitation, for joint custody and other relief. The juvenile court modified visitation and ordered joint custody. Father appeals. We affirm.

Tim Walton v. Sharon (Walton) Camp
W2001-01409-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George H. Brown

CH-00-1455-1
CH-00-1455-1
Trial Court Judge: Walter L. Evans

Troy Allen Thompson v. Elisa Connell Hulbert
W2000-02675-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: A. V. Mcdowell