COURT OF APPEALS OPINIONS

Oak Ridge Land Company, LP., v. Richard H. Roberts, Commissioner Of Revenue For The State of Tennessee
E2012-00458-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Chancellor David R. Duggan

The Department of Revenue conducted an audit on plaintiff's partnership, and as a result franchise and excise taxes of $317,659.72 plus interest of $59,525.59 were assessed against plaintiff. Plaintiff brought an action contesting the assessments, and since the Commissioner had relied on Tenn. Comp. R. & Regs. 1320-6-1-.20 to make the assessment, the plaintiff charged the Rule was inconsistent with the provisions of Tenn. Code Ann. § 67-4-2006. The Trial Judge held the regulation was in conflict with the code section to the extent that the Rule attempted to restrict the deduction for charitable contributions made to only the book basis, rather than the fair market value, and the plaintiff was entitled to summary judgment on that issue and an abatement in the assessment of $303,049. The Court also found that the plaintiff was in error in not including certain real property in calculating the net worth under the ruling of Crown Enterprises, Inc., v. Woods, and that the defendant was entitled to a judgment of additional tax in the amount of $14,610.72. Both parties appealed. On appeal, we reverse the Trial Court's Judgment regarding excise tax and we remand for a Judgment on the excise tax as assessed by the Commissioner. The Trial Court's Judgment regarding the franchise tax is affirmed.

Lura M. McBride v. Farragut Board of Zoning Appeals, et al.
E2012-00388-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Daryl R. Fansler

This is an appeal from a judgment in a certiorari review action where the trial court ruled in favor of the petitioner. The trial court found that a proposed construction project involving the petitioner’s property was not covered by the local zoning ordinance, and, therefore, the petitioner was not required to seek a variance from the local board of zoning appeals in order to obtain a building permit. The respondents appeal. We affirm.

Elizabeth C. Wright v. Frederico A. Dixon, III
E2012-00542-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Michael W. Moyers

Elizabeth C. Wright (“the Seller”) filed suit against Frederico A. Dixon, III (“the Buyer”) for breach of a contract to purchase real property. The contract allowed the Buyer to terminate in the event he was unable to obtain financing. Under the contract, termination was to be effective only if notice of same was “received.” The Buyer claims to have sent a notice of termination through his agent by fax to the Seller. The Seller claims that she did not receive it. The trial court found that the attempted termination was ineffective because it was not received. The Buyer appeals. We affirm.

Kenneth E. King v. Anderson County, Tennessee
E2012-00386-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Donald R. Elledge

Kenneth E. King was arrested for driving on a revoked license. He was put in a cell with several violent criminals. At his arraignment, the court ordered him released. The person charged with processing the release delayed his release by simply doing nothing. While awaiting his release, Mr. King was assaulted by one of his cellmates. He sustained serious injuries, including partial loss of vision in one eye. He filed this action against Anderson County (“the County”). After a bench trial, the court found the County 55% at fault and King 45% at fault for provoking the assault. It determined that the total damages were $170,000 reduced to $93,500 to account for King’s comparative fault. The County appeals. We affirm.

Apollo Hair Systems of Nashville, Inc. v. Micromode Medical Limited et al.
M2011-01480-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

Plaintiff, a retail business specializing in hair restoration and related services that leased “beauty equipment” from a third party lessor, filed this action against the manufacturer of the “beauty equipment” and the distributor of the products asserting claims for intentional misrepresentation, negligent misrepresentation, and violations of the Tennessee Consumer Protection Act. Plaintiff obtained a monetary judgment against the distributor, however, the trial court summarily dismissed all claims against the manufacturer. Plaintiff appeals the summary dismissal of its claims against the manufacturer. We affirm.

Fork Union Medical Investors Limited Partnership; Goochland Medical Investors Limited Partnership; Life Care Centers of America, Inc. v. HR Acquisition of Virginia Limited Partnership; HRT Holdings, Inc.
M2011-01743-COA-R3-CV
Authoring Judge: Senior Judge Ben H. Cantrell, Sr.
Trial Court Judge: Judge Hamilton Gayden

This is a dispute over a claim for rent reimbursements in a lease agreement. The trial court granted summary judgment to the defendant, holding that the undisputed facts showed that a limitation of remedy provision in the lease relieved the defendant from any liability. We affirm the judgment of the court below.

Delwin L. Huggins, John P. Konvalinka et al. v. R. Ellsworth McKee, et al.
E2012-00080-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jon Kerry Blackwood

This appeal arises from a dispute over setoff claims related to a bankruptcy proceeding. Delwin Huggins (“Huggins”) sued R. Ellsworth McKee (“McKee”) and Alternative Fuels, LLC (“AF”) (McKee and AF as “the Defendants,” collectively) in the Chancery Court for Hamilton County (“the Trial Court”). Huggins filed for bankruptcy. Konvalinka later purchased the claims asserted by Huggins in this lawsuit. The Defendants filed a motion for judgment on the pleadings, arguing that, even if Konvalinka’s claim for damages was successful, McKee had an offset far in excess of these damages which rendered any further proceedings useless. The Trial Court agreed with the Defendants and dismissed the case. We affirm, in part, and, reverse, in part, the judgment of the Trial Court.

Darla Bullock, as next of kin and sole surviving heir of Linda H. Lobertini v. University Health Systems, Inc.
E2012-00074-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Wheeler A. Rosenbalm

This is an appeal in a medical malpractice case. The original plaintiff, the decedent, filed the initial malpractice action against the defendant, but the case was dismissed after the decedent passed away during the pendency of the suit. Her sole surviving heir re-filed the action without complying with Tennessee Code Annotated sections 29-26-121 and 122, which require a plaintiff who files a medical malpractice suit (1) to give a health care provider who is to be named in the suit notice of the claim sixty days before filing the suit, and (2) to file with the medical malpractice complaint a certificate of good faith confirming that the plaintiff has consulted with an expert who has provided a signed written statement that there is a good-faith basis to maintain the action. The defendant filed a motion to dismiss, and the trial court dismissed the case. The plaintiff appeals. We affirm.

William H . Thomas, Jr. v. Tennessee Department of Transportation et al.
M2011-02530-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Rusell T. Perkins

Petitioner challenges the decision of the Tennessee Department of Transportation denying his application for a billboard permit because his proposed location was within 1000 feet of another permit location. He contends the Department erroneously deviated from its regulation requiring permit applications for locations within 1000 feet of each other to be considered on a “first come first served” basis, insisting he submitted a “complete” application before the applicant who was granted a permit for the nearby location. The Chancery Court summarily dismissed the petition, finding it constituted an impermissible collateral attack on the Department’s decision to grant a permit to the other applicant. The court also found that the Department complied with its rules in issuing the permit to the other applicant and denying the petitioner’s application because petitioner’s location was less than 1000 feet away from the other applicant’s location. We affirm.

Advantage Personnel Consultants, Inc. v. Tennessee Department of Commerce et al.
M2011-02746-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chanellor Claudia Bonnyman

This matter involves a disagreement between an insurer and an insured over the proper classification of employees for the purpose of workers’ compensation insurance. The decision of the Department of Commerce and Insurance was in favor of the insurer. The insured appealed to the trial court, which affirmed the Department. We find that the decision of the Department of Commerce and Insurance is supported by substantial and material evidence and affirm the trial court.

PNC Multifamily Capital Institutional Fund XXVI Limited Partnership, et al. v. Carl Mabry
W2011-01679-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Arnold B. Goldin

Appellant takes exception to the trial court’s order, enforcing a settlement agreement. ollowing a judicial settlement conference, the parties signed a written agreement, which contemplated the execution of more formal settlement documents. When the formal documents were presented to Appellant, he refused to sign. Upon Appellees’ motion, the trial court enforced the settlement and Appellant appeals. Discerning no error, we affirm.

Federal National Mortgage Association v. Brett Stokes
E2012-00270-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Wheeler Rosenbalm

Plaintiff brought this action against defendant, occupant of the property which had been foreclosed. Plaintiff held a deed of ownership. Plaintiff sued for possession and for damages for unlawful detainer of the property. The Trial Court granted plaintiff summary judgment for possession and damages for unlawful detainer pursuant to Tenn. Code Ann. § 29-18-120. On appeal, we affirm.

James Lueking, et al., v. Cambridge Resources, Inc., et al.
E2011-02393-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge John McAfee

In this case the Trial Court entered a "Final Judgment". The Judgment did not resolve defendant's Counter-Claim. On appeal, we hold we are without jurisdiction to consider the Appeal and dismiss the Appeal.

Edward Hanson v. J.C. Hobbs Company, Inc.
W2011-02523-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Ron E. Harmon

This case arises out of the sale of a tractor. The plaintiff purchaser bought a tractor online from the defendant company, which specializes in the sale of tractors. The company advertised the tractor as having many fewer hours of use than it actually had. After taking possession of the tractor and learning the tractor’s true condition, the purchaser filed this lawsuit against the company, alleging breach of contract, fraudulent misrepresentation, rescission, and violation of the Tennessee Consumer Protection Act. After a bench trial, the trial court held in favor of the purchaser, and awarded compensatory damages and attorney fees. The company now appeals, arguing inter alia that the evidence does not support an award of compensatory damages under the Tennessee Consumer Protection Act. We affirm.

Stonebridge Life Insurance Company, Gwendolyn R. Williams v. Onzie O. Horne, III
W2012-00515-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Arnold B. Goldin

This is an interpleader action resulting from competing claims to the proceeds of a life insurance policy. The trial court granted summary judgment to the Insured’s mother, finding that, because she was the only named beneficiary of the policy, she was entitled to the proceeds. Insured’s husband appeals, arguing that, because Insured’s mother was only named as a contingent beneficiary, the default provisions of the policy remained in effect, resulting in him being the primary beneficiary of the policy. Husband also appeals the trial court’s dismissal of his bad faith claim against the insurer. We affirm the dismissal of the bad faith claim, but conclude that the contract at issue is ambiguous and the issue in this case is not properly decided on summary judgment. Affirmed in part, reversed in part, and remanded.

In Re: Dylan P.
M2012-00639-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Amy V. Hollars

The trial court determined that the minor children in this case were dependent and neglected upon finding that one of the children was the victim of severe child abuse. Mother appeals. We dismiss for lack of jurisdiction.

Tamala Teague, as successor personal representative of the Estate of Lola Lee Duggan v. Garnette Kidd, et al.
E2011-02363-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Jerri Bryant

This appeal involves a claim filed by the Administrator of Decedent’s estate to recover monetary assets that were misappropriated from Decedent prior to her death. Administrator alleged that the Kidds depleted Decedent’s monetary assets, thereby breaching a confidential relationship they held with her. The trial court agreed and issued a judgment against the Kidds with prejudgment interest. We affirm the judgment against Wife as modified but reverse the judgment against Husband. The case is remanded.

In Re: Conservatorship of Maurice M. Acree, Jr., et al. v. Nancy Acree, et al.
M2011-02699-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Senior Judge Walter Kurtz

In this action a Petition was filed and a conservator was appointed for Dr. Maurice M. Acree,
Jr., and William Acree was made a party to that proceeding. Five years after a conservator
was appointed, William Acree filed a "Complaint" in that action. The Trial Court determined
that a complaint could not lie in that action, and treated it as a Rule 60 Motion and denied
William Acree any relief. William Acree has appealed to this Court and we affirm the Trial
Court's Judgment, but modify the Judgment on the basis that the record reveals plain error
which should be addressed because the trusts remain active.

In the Matter of: Christopher A. D.
M2010-01385-COA-R3-JV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Betty K. Adams Green

The mother brought a petition to modify support and for contempt, alleging that the father
had willfully understated his income during an earlier proceeding to modify support. The
juvenile court judge found that the mother had proved her allegations and awarded her a
judgment of over $26,500 for back child support as well as attorney fees of over $12,800.
We hold that the statutory prohibition against retroactive modification of child support
disallows the award of pre-petition support. Accordingly, we are compelled to vacate the
trial court’s award of support for the time prior to the date on which the mother filed her
petition to modify child support. We affirm the prospective modification and the award of
child support from that date.

In Re Estate of Margaret L. Swift - Dissenting
W2012-00199-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Robert Benham

In re Estate of Milam, 181 S.W.3d 344, 353 (Tenn. Ct. App. 2005). (“[W]hen a decedent undertakes to make a will, we must presume that the decedent intended to die testate, and we must seek to construe the will, where possible, as including all of the testator’s property at death”). Second, as I will discuss more fully hereafter, the testatrix in this case clearly evidenced an intent to die testate. “The testator’s intent is to be determined from the particular words used in the will itself, . . . and not from what it is supposed the testator intended.” Id. at 353 (internal citation omitted).

In Re Estate of Margaret L. Swift
W2012-00199-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Robert Benham

This appeal involves the interpretation of a will. The named residuary beneficiary predeceased the testatrix. The executrix of the decedent’s estate argued that a survivorship requirement in the will applies to the named residuary beneficiary, so her interest lapsed. The issue of the residuary beneficiary argued that the survivorship requirement did not apply to the residuary beneficiary, so Tennessee’s anti-lapse statute operates to pass the beneficiary’s interest to her issue. The trial court held for the executrix, construing the will so as to apply the survivorship requirement to the residuary beneficiary. We agree with the trial court’s interpretation of the will, and so affirm.

Bridget Michelle Agee v. Jason Forest Agee
M2011-02103-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge C. L. Rogers

In this post-divorce dispute, Father challenges the trial court’s modification of the parenting plan to designate Mother as primary residential parent and the trial court’s calculation of his income and monthly child support obligation. Discerning no error, we affirm.

Joshua Hilliard v. Turney Center Disciplinary Board, et al.
M2011-02213-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Timothy L. Easter

Inmate appeals the dismissal of his petition for writ of certiorari. The chancery court dismissed the petition for lack of subject matter jurisdiction based upon the expiration of the applicable statute of limitations and because inmate failed to show that the prison disciplinary board acted illegally, fraudulently, or arbitrarily. We affirm, finding the inmate failed to show that the disciplinary board exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily.

Rick Earl, et al. v. Dr. Raquel Hatter, Commissioner, Tennessee Department of Human Services, et al.
M2011-00914-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen H. Lyle

Married couple sought judicial review of decision of Department of Human Services holding that they were not eligible for medicaid under an amendment to the Social Security Act known as the “Pickle Amendment.” Upon consideration of the record we affirm the judgment of the Chancery Court.

Anna Ruth Collins (Eisenberg) v. The Estate of Harvey L. Collins
E2012-00079-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Bill Swann

This is an action to collect child support ordered in the parties’ 1965 divorce decree. The Trial Court held that the ten year statute of limitations contained in Tenn. Code Ann. § 28-3- 110(2) acted as a bar to this action and dismissed the case. Anna Ruth Collins (Eisenberg) appeals to this Court. We affirm.