COURT OF APPEALS OPINIONS

State of Tennessee ex rel. Suzy Whitley v. Sam Lewis
W2006-02333-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge J. Mike Whitaker

This appeal involves a claim in juvenile court to recover child support payments. The mother of the child at issue told the respondent that he was the child’s father. In reliance on this, the respondent signed a voluntary acknowledgment of paternity, and the juvenile court entered an agreed order setting child support and establishing the respondent’s child support arrearage. Over two years later, the respondent learned that the child might not be his, and he petitioned the juvenile court for a paternity test. His petition was granted, and the test showed that he was not the biological father of the child. The juvenile court set aside the voluntary acknowledgment of paternity based on fraud, relieved the respondent of any future obligation to pay child support, and forgave all past child support arrearages. Subsequently, the respondent filed a petition against the mother, seeking damages because the mother had fraudulently induced him into signing the voluntary acknowledgment of paternity. The juvenile court granted the respondent’s petition against the mother, awarding him damages consisting of the child support erroneously paid, the cost of  paternity testing, and attorney’s fees. The State, on behalf of the mother, now appeals. We reverse, concluding that the juvenile court erroneously forgave the respondent’s accrued child support arrearages, and that the juvenile court did not have jurisdiction to adjudicate the respondent’s petition against the mother for damages.

Ronald C. Howse v. Tennessee Department of Correction
M2004-01497-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Richard H. Dinkins

In 1982, appellant prisoner was sentenced to one twenty-five year determinate sentence and four five-to-ten-year indeterminate sentences, to run consecutively. In 2003, appellant filed a declaratory judgment action in the Davidson County Chancery Court, alleging that he had been wrongfully denied the possibility of custodial parole. The trial court granted summary judgment in favor of appellee the Tennessee Department of Correction. Appellant appeals such ruling. We affirm.

John Ruff v. Raleigh Assembly of God Church, Inc.
W2006-01255-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Donna M. Fields

On remand pursuant to Tennessee Code Annotated § 27-3-128, the trial court entered judgment in favor of Defendant with respect to Plaintiff’s claim for assault. We affirm.

Thomas R. Jones, Jr. v. Heather L. Rusch-Jones - Concurring
E2006-01998-COA-R3-CV
Authoring Judge: Judge Charles D. Susano
Trial Court Judge: Judge Bill Swann

I concur in the majority opinion. I write separately to address two matters.

Thomas R. Jones, Jr. v. Heather L. Rusch-Jones
E2006-01998-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Bill Swann

Following a short marriage of less than four years, Thomas R. Jones, Jr. (“Father”) filed a complaint for divorce from Heather L. Rusch-Jones (“Mother”). Mother filed a counter-claim also seeking a divorce. Both parties sought to be the primary residential parent of their young daughter. While this case was pending, both parties filed competing petitions for orders of protection. Father’s petition was granted; Mother’s was not. Following a very lengthy trial, the Trial Court designated Father as the primary residential parent and awarded Mother supervised and restricted co-parenting time. The Trial Court awarded Mother a limited amount of alimony. Mother appeals raising numerous issues, including a challenge to the Trial Court’s designation of Father as the primary residential parent and the amount of alimony she was awarded. We affirm the judgment of the Trial Court and remand for further proceedings consistent with this Opinion.

Lee T. Myers v. Sandra Brown
W2005-02520-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Special Judge George E. Blancett

This case involves the third and fourth appeals (consolidated) of successive petitions to modify custody. The mother and father of the child at issue were never married. The mother was designated the primary residential parent for the child, and the father was given designated parenting time and ordered to pay child support. In 2002, the father filed a petition to modify custody. The trial court denied the father’s petition, and the decision was affirmed by this Court (“E.J.M. I”). During the pendency of that appeal, the father filed a second petition for a change of custody based on facts that arose after his first petition was denied. A hearing on this petition was conducted shortly after this Court issued its decision in E.J.M. I. A juvenile court judge held that, though he might otherwise change custody to the father, he was bound by the appellate decision in E.J.M. I to give final decision-making authority to the mother. Nevertheless, joint custody was ordered. The father now appeals that decision. Shortly after that, the father filed another petition to modify custody, based on facts that arose after the decision to award joint custody. Another juvenile court judge conducted a hearing, heard testimony, and reviewed the entire record. After doing so, the juvenile court judge strongly criticized the father’s litigiousness and, in light of the pending appeal of the joint custody award, dismissed the father’s petition for lack of jurisdiction. The father appeals that decision as well. Both appeals were consolidated, but the appeal was dismissed due to a procedural defect (E.J.M. II). The procedural defect was cured, and we now hear the consolidated appeal. We reverse the conclusion by both juvenile court judges, holding that the trial court has jurisdiction and authority to modify custody even while an appeal is pending, so long as the modification is based on new facts and changed conditions that arose after the trial court judgment that is the subject of the appeal. The cause is remanded for a decision on the father’s petitions to modify custody.

Ronald F. Fleming v. Jim Murphy, et al
W2006-00701-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge D'Army Bailey

The plaintiff buyer, a Texas resident, became aware of a used car for sale in Memphis through an internet advertisement. The plaintiff contacted the defendant who had prepared the internet advertisement for the seller, and who provided him with the phone number of the defendant seller.
The plaintiff and the defendant seller agreed that the plaintiff would travel to the seller’s house in
Memphis to see the car and decide whether to purchase it for $38,000. The plaintiff and his stepson drove to the seller’s home in Memphis, inspected the car, and took it on a short test-drive. The plaintiff noted several problems with the car during the test-drive, but declined the defendant seller’s offer to have the car inspected by a Memphis area mechanic prior to purchase. The plaintiff tendered full payment for the car, and he and the seller signed a bill of sale that contained “as is” disclaimers of warranty. After the plaintiff arrived back home in Texas, he took the car to a mechanic for routine maintenance. The mechanic informed the plaintiff that the car’s frame was severely rusted, rendering it dangerous to drive. The plaintiff received the same opinion from a restoration specialist, and the plaintiff claims ultimately to have spent nearly $35,000 restoring the vehicle. The plaintiff filed a complaint in Shelby County Circuit Court, asserting claims under the Tennessee Consumer Protection Act and claims for negligent misrepresentation and breach of contract. The plaintiff claimed actual damages which included over $25,500 in restoring the car to the condition represented by the defendants, and he sought treble damages under the Tennessee Consumer Protection Act. After discovery, the trial court granted the defendants’ joint motion for summary judgment. We affirm.

Demetrica Bell v. Cathy Ann Bell
M2004-01975-COA-R3-CV
Authoring Judge: Judge Patricia Cottrell
Trial Court Judge: Chancellor Carol A. Catalano

Wife appeals from the trial court’s final decree of divorce, alleging various deficiencies in the proceedings. Based on the limited record before us, which includes Wife’s specific waiver of most of the issues she now raises, we affirm the trial court.

Aaron Walker v. Tennessee Department of Correction
M2005-00209-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Claudia C. Bonnyman

An inmate of the Department of Correction appeals dismissal by the trial court of his Petition for Writ of Certiorari of a Department of Correction Disciplinary Proceeding. The trial court upheld the action of the Department of Correction. The judgment of the trial court is affirmed.

James William Taylor v. George Little
M2005-01615-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Appellant and inmate in the Department of Correction filed a declaratory judgment action asserting various deficiencies in the judgment of the trial court convicting him of first degree murder and sentencing him to life in prison. He asserts that the murder conviction should not have been used in the calculation of his prison sentence. The trial court granted summary judgment to Defendant, George Little, the Commissioner of Correction. We affirm the judgment of the trial court.

Memphis Light, Gas & Water Division v. Tommy Carl Starkey
W2006-01089-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Robert L. Childers

This case involves wrongful interference with an easement. The plaintiff utility operates an underground gas transmission line. The utility had an easement for the gas line, running along thenorth edge of a large tract of real property. For the gas line to operate safely, it needed sufficient soil both on top of the pipeline and on each side of the pipeline. The defendant developer acquired the real property, subject to the easement for the pipeline. The developer then sought to develop the real property. In May 2002, the defendant developer began excavating large amounts of dirt from within the easement site without proper authorization from the utility. Despite the utility’s repeated demands to stop, the developer continued the excavation. Only when the utility threatened to have the developer arrested did he finally stop excavating dirt from around the pipeline. By this time, there was so little dirt surrounding the pipeline that there was serious danger to the public, and the utility was required to engage in immediate corrective work. The utility hauled in and spread 21,467 yards of dirt, restoring the easement site to a safe condition. The utility then filed suit against the developer, seeking compensatory and punitive damages. After a bench trial, the trial court awarded the utility compensatory damages and punitive damages. The defendant developer now appeals. We affirm, finding ample evidence to support the award of damages.

Doris Jones and Billy J. Jones v. Susannah P. Johnson
W2006-01859-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Roger A. Page

This is a personal injury case involving the Tennessee suspension statute. On August 27, 2003, the defendant rear-ended the plaintiff’s vehicle. On August 23, 2004, the plaintiffs filed a lawsuit
against the defendant for damages arising out of the accident. On the same date, a summons was issued to the defendant at her last known address in Tennessee. A few days later, the summons was returned with a notation indicating that the defendant had moved to Georgia. The plaintiffs failed to renew process within one year of the original date of service. Finally, in March 2006, an alias summons was issued and served on the defendant in Georgia. The defendant filed a motion for summary judgment based on the one-year statute of limitations. The trial court granted the defendant’s motion. The plaintiffs now appeal, arguing that the statute of limitations was tolled pursuant to the suspension statute, T.C.A. § 28-1-111, because the defendant lived in another state when suit was filed. We affirm, concluding that the suspension statute is inapplicable in this case.

Eric Todd Jackson v. Carrie Gasaway
M2004-02285-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge Ross H. Hicks

Inmate appeals the dismissal of his "Personal Injury Suit" against the attorney who represented him in a previous criminal matter. The trial court dismissed the action finding the complaint does not state a cause of action due to the lack of any allegation of severe mental injury and that any action arising out of alleged misconduct occurring on March 9, 2001, would be barred by the one-year statute of limitations. Finding the inmate's suit wholly without merit, we affirm.

County of Shelby, A Political Subdivision of the State of Tennessee v. John R. Tompkins, et al.
W2006-01433-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor D. J. Alissandratos

In this administrative appeal, a Shelby County firefighter challenges the judgment of the lower court reinstating the Fire Department’s decision to terminate his employment for a conceded violation of the county residency requirement set forth in the Shelby County Charter. The Shelby County Civil Service Merit Board (Merit Board) had modified the Fire Department’s sanction from termination to suspension without pay for the time of suspension already served. The trial court, however, ruled that the Merit Board exceeded its authority by failing to heed the Shelby County Charter’s provision mandating termination. The Appellant argues that the Charter does not mandate termination; that, even if it does, he had moved back to Shelby County at the time of his termination and should not have been discharged; and that, alternatively, he is entitled to a remand to advance an equal protection argument because he was unfairly prevented from doing so in the lower court. We affirm.

Gladys Tuturea, Individually and as representative of George Tuturea v. Tennessee Farmers Mutual Insurance
W2006-02100-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Julian P. Guinn

This lawsuit concerns coverage for real and personal property under three insurance policies issued by Defendant. The trial court awarded partial summary judgment to both parties and entered final judgment pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. Both parties appeal. We vacate the trial court’s order entering final judgment pursuant to Rule 54.02 and remand.

William L. Thompson v. Memphis Light, Gas And Water
W2006-01972-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor D. J. Alissandratos

The trial court awarded summary judgment to Plaintiff, former employee of Defendant Memphis Light Gas and Water Division (“MLGW”), upon determining that Plaintiff was entitled to severance benefits under “personnel policy 22-25" because revocation of the policy by MLGW’s Board was negated due to violations of the Open Meetings Act. We reverse the award of summary judgment to Mr. Thompson and award summary judgment to MLGW on other grounds.

Danny Ray Meeks v. Claudia Bonnyman
M2006-02657-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Barbara N. Haynes

Petitioner brought an action for mandamus in Circuit Court. The Trial Court dismissed the Petition on the grounds that petitioner did not meet the statutory requirements for maintaining an action. On appeal, we affirm.

Tennie Martin and Roya Mitchell, et al v. NorFolk Southern Railway Company, et al - Dissenting
E2006-01021-COA-R3-CV
Authoring Judge: Judge Charles Susano, Jr.

CHARLES D. SUSANO, JR., dissenting.
I start with an elementary and bedrock principle of Tennessee jurisprudence: when a party
timely files a complaint in circuit court, alleges facts making out a cause of action, and demands a
jury, that party has a constitutional right to have a jury pass upon the merits of its allegations. Tenn.
Const. Art. I, §6. (“That the right of trial by jury shall remain inviolate . . .”). I fully recognize that
a party’s jury demand and its right to pursue its alleged cause of action can be legitimately thwarted
if the party sued can demonstrate, under the rubric of Tenn. R. Civ. P. 56, that it is entitled to
summary judgment. Hence, if the material facts pertaining to a defense are not in dispute and if
those facts show conclusively that the defendant is entitled to a judgment, the plaintiff loses its
constitutional right to a jury trial, its case is over, and the defendant goes away with summary
judgment.

Tennie Martin and Roya Mitchell, Co-Personal Representatives of the Estate of Kathryn Martin, deceased, and Tennie Martin and Roy A. Mitchell, et al v. NorFolk Southern Railway Company, et al
E2006-01021-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Circuit Judge Donald R. Elledge

Decedent’s vehicle was struck by defendants’ train at a railroad crossing, resulting in decedent’s death. The Trial Court granted Defendants’ Summary Judgment. The Estate has appealed. We affirm the Trial Court’s Judgment.

Smith County, Tennessee, and Smith County Highway Department v. Dave Enoch
M2006-01007-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Chancellor C. K. Smith

The operator of an automobile junkyard in Smith County appeals the permanent injunction issued against him by the Chancery Court enjoining him from maintaining an excessive number of inoperable vehicles within one thousand feet of a county road in violation of the Smith County Junkyard Control Act, Chapter 97 of the Private Acts of 1987. The junkyard operator contends the evidence was insufficient to support the findings and conclusions of the trial court. Finding the evidence more than sufficient, primarily due to admissions by the operator of the junkyard, we affirm.

Progressive Casualty Insurance Co. v. Howard D. Chapin and Arthur Blair Samuels and Sabrina D. Ball, as Guardian Ad Litem for Natascha Bouchard
W2006-00531-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Rita L. Stotts

This is an insurance case. The plaintiff insurer issued a policy of insurance for a motorcycle. The
named insured kept the motorcycle at his home, and allowed his adult son unrestricted access to hishome and the motorcycle. The adult son borrowed the motorcycle and drove it to a friend’s house. While there, the adult son let the friend take his minor stepdaughter for a ride on the motorcycle. The friend lost control of the motorcycle and the stepdaughter was injured. The accident prompted the stepdaughter’s biological father to file a petition against his daughter’s mother in chancery court for a change of custody. During the custody dispute, the chancery court appointed both a guardian ad litem and an attorney ad litem for the stepdaughter, and ordered the attorney ad litem to pursue any legal actions on behalf of the stepdaughter for the accident. When the attorney ad litem filed a claim on the stepdaughter’s behalf with the plaintiff insurer, payment was denied. The guardian ad litem then filed a separate tort action against the friend. While the tort action was pending, the plaintiff insurer filed this declaratory judgment action against the named insured and the friend, seeking a declaration that its insurance policy did not cover the friend. The guardian ad litem intervened in this action. After a bench trial, the trial court found that the insurance policy covered the friend for the motorcycle accident, and awarded the guardian ad litem discretionary costs, which included attorney’s fees for the attorney ad litem. The plaintiff insurer now appeals. We reverse the trial court’s decisions on the issue of coverage and discretionary costs, and remand for further proceedings as may be necessary.

Roy Brewer v. Rochelle S. Piggee and heirs and next of kin of Sidney L. Piggee, deceased
W2006-01788-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor D. J. Alissandratos

This is a quiet title action. The plaintiff’s mother owned a parcel of real property. In 1977, the mother executed a deed, conveying the property to one of her sons. Two years later, the plaintiff and her four siblings filed a separate but related lawsuit to set aside the 1977 deed for fraud. In 1985, by court order, the trial court divested the son of sole ownership and created a trust; the son was appointed as trustee for the use and benefit of the mother’s grandchild and the grandchild’s minor children, until the youngest minor child reached the age of majority. In 1986, by court order, the trial court removed the son as trustee and substituted the grandchild in his place. Despite these orders, in 1994, the son executed a deed purporting to convey the property to a third party. In December 2001, the defendants obtained a deed to the property from a successor in interest to the son. Meanwhile, the youngest beneficiary of the trust reached the age of majority. The plaintiff later obtained a warranty deed to the property from the youngest beneficiary and a quitclaim deed from the trustee grandchild and her other four children. The plaintiff then filed this lawsuit and moved for judgment on the pleadings and/or summary judgment. The defendant answered, raising the defense of adverse possession, and filed a motion to dismiss, raising a defense under T.C.A. § 28-2-110. The trial court denied the defendant’s motion to dismiss and granted the plaintiff’s motion for judgment on the pleadings, finding that the 1985 and 1986 orders, as well as the deeds from the grandchild and her five children, established the plaintiff as the rightful owner. The defendant appeals. We affirm in part, reverse in part, and remand the case for further proceedings.

Du Sik Lee and Won Jae Lee v. Kenneth R. Davis and Linda P. Davis
W2006-01018-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Karen R. Williams

This is a breach of contract case. The defendants own a commercial building that was seriously damaged by a fire. The plaintiffs entered into a lease-purchase contract with the defendants to acquire the building at the expiration of a ten-year lease. Under the contract, the plaintiffs agreed to renovate the building from the fire damage, consistent with the local city building code and the defendant owners’ approval. After some renovations were made, prior to the expiration of the contractual repair period, the defendants deemed the renovations to be not in compliance with the city code and disapproved them. The defendant owners then declared the plaintiffs to be in breach of the contract and repossessed the property. The plaintiff lease-purchasers sued the defendant owners for breach of contract, claiming that, at the time of repossession, the renovations were not yet completed and that they still had time under the contract to complete them. After a bench trial, the trial court determined that the plaintiffs had breached the contract because the renovations were not in compliance with the city code and did not meet the approval of the defendant owners. The plaintiffs now appeal. We affirm, concluding that the evidence does not preponderate against the trial court’s finding that the plaintiffs breached the contract by making repairs that were not in compliance with the applicable code; the fact that the contractual repair period had not yet expired is immaterial.

Harriet Caci (O’Shields) Rogers v. Scott Allen Rogers
W2006-00858-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge D'Army Bailey

This is a parental relocation case. After the parties separated, the mother and the child moved in
with the mother’s parents in Memphis, Tennessee. Under the parties’ marital dissolution agreement (“MDA”), the mother was designated the primary residential parent for the parties’ child, and the father was granted parenting time every other weekend. Two months after entry of the divorce decree incorporating the MDA, the mother sent the father a letter notifying him of her intent to move to South Carolina with the child. The mother explained that her parents were moving to South Carolina and she wanted to move with them. The father filed a petition in opposition to the mother’s proposed relocation, arguing that the move had no reasonable purpose. After a bench trial, the trial court determined that the mother did not have a reasonable purpose for the move and denied her request to relocate. The mother now appeals. We affirm the trial court’s finding that the proposed relocation did not have a reasonable purpose but remand the case to the trial court for a best interest determination as required pursuant to Tennessee Code Annotated § 36-6-108(e).

Dyersburg Suburban Consolidated Utility District v. The City of Dyersburg, et al.
W2006-01704-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor J. Steven Stafford

This appeal involves a dispute between a city and a rural water association as to which entity is entitled to provide water service to a proposed subdivision. The rural association has a defined service district in which it is empowered to provide water service, and most of the disputed property lies within the rural association’s boundaries. However, the city annexed the proposed subdivision and now claims that it has the exclusive right to provide water service to the property. The rural association argues that 7 U.S.C. § 1926(b), the Anti-Curtailment Provision of the Consolidated Farm and Rural Development Act, protects its service area and prohibits the city from providing water service to the property. The trial court granted summary judgment to the city, finding the federal statute inapplicable. For the following reasons, we affirm in part, reverse in part and remand for further proceedings.