COURT OF APPEALS OPINIONS

Mary Kay Thompson v. Clayton Thompson, Jr.
M2005-02762-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Timothy L. Easter

This is a post-divorce proceeding wherein Appellee sought to enforce the provisions of a marital dissolution agreement and Appellant sought to modify alimony and child support provisions because of an alleged change of circumstances. The trial court ruled that Appellant was intentionally underemployed and attributed income that was comparable to his income at the time of divorce. Finding that the evidence in the record does not support a finding of willful underemployment, we vacate the judgment of the trial court and remand the case for further proceedings.

Linda Riggan Wood, et al. v. Terry Riggan Lowery, et al. - Concurring
W2006-00901-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Walter L. Evans

I concur fully in the majority opinion in this case, with the exception of the majority’s discussion of one issue. The majority notes that the executrix, Ms. Wood, was bound “to the exercise of that degree of diligence, prudence, and caution which a reasonably prudent, diligent, and
conscientious business [person] would employ in the management of [their] own affairs of a similar nature.” In re Estate of Inman, 588 S.W.2d 763, 767 (Tenn. Ct. App. 1979). The majority finds that the trial court implicitly determined that Ms. Wood acted in accordance with this standard, insofar as she was attempting to recoup the original investments made by her father in Revelation and Lowery Riggan Company. It is unclear whether the majority holds that the evidence
preponderates in favor of this implicit finding, because the majority then goes on to note that, in order to collaterally attack an estate that has been closed without appeal, Ms. Lowery would be required to make allegations in the nature of fraud, mistake, or the like, and no such allegations were made.¹

To the extent that the majority’s opinion can be read to find that the trial court correctly found that Ms. Wood acted in a reasonably prudent manner, I must disagree. Certainly she acted in good faith, and it appears that her investment decisions were similar to those made by her father prior to his death. But her investment decisions were nevertheless unwise and imprudent. The fact that the Decedent invested heavily in Revelation and Lowery Riggan Company does not authorize the executrix to continue such unwise investments with the estate assets entrusted to her care.

Nevertheless, I concur because, as noted by the majority, Lowery’s allegations are insufficient to collaterally attack an estate that has been closed.

¹“An order or decree rendered on the final settlement of a personal 1 representative is not subject to collateral attack, except where there is fraud, misrepresentation, accident, or mistake, or where the court acted without jurisdiction or the order or decree was wholly void.” 34 C.J.S. Executors and Administrators § 868 (1998) (footnotes omitted).

Linda Riggan Wood, et al. v. Terry Riggan Lowery, et al.
W2006-00901-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Walter L. Evans

Appellant challenges the trial court's judgment dismissing Appellant's claims against the Executrix of her father's estate and enforcing the agreement made by the Appellant with her siblings to share equally in the net assets of her father's estate.  We affirm.

Jennifer Dunn, Individually and as the natural mother and next of kin to Jeremias Dunn, Deceased v. Amelia Davis
W2006-00251-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Karen R. Williams

This appeal arises from a wrongful death action tried by a jury. The jury allocated 51% fault to Defendant and assessed total damages in the amount of $1,250,000. The trial court denied Defendant’s motions for new trial, remittitur, and judgment in accordance with motion for directed verdict; entered judgment against Defendant in the amount of $637,500; and awarded Plaintiff discretionary costs. Defendant appeals. We affirm in part, reverse in part, and remand with suggestion of remittitur.

Cracker Barrel Old Country Store, Inc. et al., v. Richard Epperson, et al.
M2006-02424-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Carol L. McCoy

In denying a request for attorneys’ fees in an action involving the enforcement of a declaration of easements and restrictions, the trial court found the phrase “costs and expenses” in that declaration does not include recovery of attorneys’ fees. The trial court is affirmed.

Christin M. Johnson, LPN v. Tennessee Board of Nursing
M2005-02129-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Carol L. McCoy

A formerly licensed practical nurse appeals a default judgment revoking her license by the Board of Nursing and claims, inter alia, that the Board failed to comply with applicable notice requirements. Because the administrative record does not reflect consideration of the rule governing proceedings by default, we reverse.

Anna Lou Williams, Plantation Gardens, D/B/A Tobacco Plantation and Beer Barn D/B/A Jim's Flea Market v. Gerald F. Nicely
W2005-02599-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Walter L. Evans

This is a declaratory judgment action against the State regarding the use of an easement. The plaintiffs own a parcel of land next to a highway. By deed, the plaintiffs' predecessor in title granted a perpetual easement for “highway purposes” to the State for the Department of Transportation in the strip of land immediately next to the highway. Prior to this litigation, the Department of Transportation asked the plaintiffs to remove advertising signs posted on the land next to the highway because the signs encroached on the State's highway “right-of-way.” In response, the plaintiffs filed a declaratory judgment action against the State, seeking a declaration that the easement for “highway purposes” did not constitute a “highway right-of-way,” and that the State had no authority to require removal of the signs. The trial court ruled in favor of the plaintiffs, declaring that the deed conveyed to the State only an easement of ingress and egress and did not grant the right to use the land as a “highway right-of-way.” The defendant now appeals. We vacate the trial court's judgment and dismiss the case, finding that the plaintiffs’ declaratory judgment action is barred by the doctrine of sovereign immunity.

Derek Davis v. Shelby County Sheriff's Department
W2006-00980-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Arnold B. Goldin

This appeal involves a writ of certiorari. The plaintiff, a former deputy sheriff for the County, was discharged. After a hearing, the County administrative board upheld the County’s decision to terminate the plaintiff’s employment. The plaintiff then filed a petition for writ of certiorari in the chancery court, seeking judicial review of the board’s decision. The plaintiff then filed a motion to amend the petition to add claims. The trial court never ruled on the motion to amend. After a hearing on the petition, the trial court affirmed the decision of the board. The plaintiff deputy sheriff appeals. We dismiss the appeal, finding that there is not a final judgment over which this Court may exercise appellate jurisdiction.

Parris Roofing & Sheetmetal Co. v. SCR Electric, Inc.
E2006-0263-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor W. Frank Brown, III

Parris Roofing & Sheetmetal Co. (“Plaintiff”) sued SCR Electric, Inc. (“Defendant”) seeking, in part, payment for work Plaintiff had done pursuant to an alleged agreement between Plaintiff and Defendant. The case was tried without a jury and the Trial Court entered an order finding and holding, inter alia, that Plaintiff and Defendant did not have an enforceable agreement, but that Plaintiff was entitled to recover $3,613.50, from Defendant in quantum meruit. Plaintiff appeals to this Court claiming that the Trial Court erred in finding that the reasonable value of the work performed was only $3,613.50. We affirm.

Kim Brown v. William Shappley, M.D.
W2006-01632-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Jerry Stokes

We affirm the trial court’s award of summary judgment to Defendant physician in this medical malpractice action.

Tenn-Fla Partners v. Henry C. Shelton, III, et al.
M2006-00945-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge John R. McCarroll, Jr.

Client appeals the dismissal of its legal malpractice action against the attorneys who represented it in a bankruptcy proceeding. The trial court determined that the action was barred by the Statute of Limitations and that there were no grounds upon which the trier of fact could find that the loss alleged by the client was caused by any negligent act or omission of the defendants. We affirm.

Garnett Lynn Goforth, R. Lynn Goforth and wife, Susan D. Goforth v. State of Tennessee
E2006-00926-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Vance W. Cheek

Plaintiffs, parents and son brought suit against the University for injuries to the son sustained while practicing football, charging the coaches were negligent in allowing practice to continue under dangerous conditions. The Commissioner ruled in favor of the University, except as to the dispute over insurance, and awarded plaintiffs $3,600.00 under the contract of insurance with the University.

Sharon Kay Jackson v. Randall D. Jackson
W2006-00182-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge John R. McCarroll, Jr.

This is a divorce case. The parties had a long-term marriage and their children are now adults.  During the marriage, the husband worked in the telecommunications industry and the wife was primarily a homemaker. The parties’ marital estate consisted largely of real property. They had incurred a substantial debt to the Internal Revenue Service. After a three-day hearing, the trial court declared the parties divorced and ordered that the real property be sold to satisfy the debt owed to the IRS. The trial court equally divided the IRS debt and any remaining proceeds from the sale of the properties. The trial court also awarded the wife a lump sum judgment representing temporary support during the pendency of the action, ordered the husband to pay the wife transitional alimony for five years, and denied the wife’s request for attorney’s fees. The wife now appeals the division of the marital estate, the decision to make the alimony award transitional rather than in futuro, and the denial of her request for attorney’s fees. The husband appeals the amount of the alimony award and the judgment for temporary support awarded to the wife. We modify the alimony to award alimony in futuro instead of transitional alimony, and affirm the remainder of the trial court’s decision.

Dudley W. Taylor, D/B/A The Taylow Law Firm v. James Dalle, Katherine Dalle, Moshe Shloush, Clarence L. Hendrix and Robert Hickman
E2006-00634-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor John F. Weaver

In this action for a judgment for fees for legal services rendered, the Trial Court entered Judgment for plaintiff and defendants appealed. We affirm.

State of Tennessee Department of Children's Services v. F.R.G.
E2006-01614-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Steven H. Jones

The trial court terminated the parental rights of F.R.G. (“Mother”) and R.K.B. (“Father”) with respect to their minor child, C.G.B. (“the child”) (DOB: December 31, 2003), upon finding, by clear and convincing evidence, that grounds for terminating their parental rights existed and that termination was in the best interest of the child. Mother appeals, arguing procedural defects in the trial court’s termination of her parental rights. We affirm.

BFS Retail and Commercial Operations, LLC v. Charles Smith - Concurring
M2006-00163-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr
Trial Court Judge: Chancellor Carol L. McCoy

I concur with the court’s opinion. However, I have prepared this separate opinion to point specifically to the provisions of Mr. Smith’s employment agreement that undermine the summary judgment in this case. 

Steve Wherry and Mary Hopkins, Co-Executors of the Estate of Margaret Archer, Deceased v. Union Planters Bank, N.A.
W2006-00256-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Walter L. Evans

This case involves the alleged negligent administration of a trust. In 1964, the plaintiffs’ decedent established a $1.7 million trust and named herself as the sole beneficiary. The defendant bank was named as the trustee and was given sole discretion to manage the trust investments. From 1964 until the decedent’s death in 1999, the bank managed the trust fund and sent the decedent monthly statements describing the trust activities. When the trust terminated, it was worth approximately $880,000. The plaintiffs, co-executors of the decedent’s estate, brought this action on behalf of the estate for negligent administration of the trust, arguing that the bank negligently failed to maximize the rate of return on the trust assets. The bank filed a motion for summary judgment based on, inter alia, the doctrine of ratification, asserting that the decedent had ratified the bank’s management of the trust assets by failing to object to its decisions over the thirty-five-year life of the trust. The plaintiffs argued that the decedent was not sufficiently sophisticated in financial matters to ratify the bank’s actions. The trial court granted the bank’s motion for summary judgment. The plaintiffs now appeal. We affirm, concluding that, in light of the undisputed facts that the decedent was legally competent and was fully informed of the bank’s actions in managing the trust investments, the decedent’s level of sophistication in financial matters is immaterial.

Anesthesia Medical Group, P.C. v. Pamela Greer Chandler
M2005-00034-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Carol L. McCoy

The plaintiff medical group loaned money to the defendant nurse for tuition at a school that trained its students to become nurse anesthetists. As part of the arrangement, the student promised to work for the group for three years after graduation. Seven months prior to graduation, the student notified the group that she would not be able to work for it upon completion of her training. She paid the loan back with interest, but the medical group filed suit to enforce a $15,000 liquidated damages clause in the loan contract. The student then filed a motion for summary judgment, which the trial court granted. The court held that the sum demanded constituted an impermissible penalty rather than a valid provision for liquidated damages and, thus, that it was unenforceable as a matter of law. We reverse the grant of summary judgment to the student and affirm the denial of summary judgment to the medical group because we find that the undisputed facts do not show that either party is entitled to judgment as a matter of law.

Moss Service & Supply, Inc. v. Tommy F. Gragg, Jr., et al.
M2005-02587-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Thomas E. Gray

The defendants, homeowners, appeal an adverse jury verdict wherein the plaintiff, a heating, ventilation and air conditioning contractor, was awarded breach of contract damages plus discretionary costs.  Finding no error, we affirm.

Melody Weston, Personal Representative, et al. v. Community Baptist Church of Wilson County
M2004-02688-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor C. K. Smith

This case arises from a dispute between a church and the estate of one of its former members over money given by the former member and her spouse to enable the newly-formed church to pay off a loan on its property. The estate contended that the money was a gift subject to a condition subsequent, with return of the gift required in the event the church ceased existence. The church admitted that it had accepted the gift, but argued that it never accepted any conditions. The court took note of a church resolution that ratified the alleged condition and ruled in favor of the estate. We affirm.

Laura Johnson v. Clover Bottom Development Center, et al.
M2005-01440-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia C. Bonnyman

An employee of Clover Bottom Development Center appeals the summary dismissal of her action under the Tennessee Handicap Act. The employee alleged she was the victim of discrimination due to her medical limitations. The trial court dismissed the action finding the employee failed to show she sustained an adverse employment action, an essential element of her claim. We affirm.

Lisa Ann (Gallahaire) Cartwright v. Robert Howard Cartwright, Sr.
W2005-02759-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Ron E. Harmon

This is a divorce case involving the classification and division of marital property. The parties signed a prenuptial agreement. After they married, the parties operated a cattle and farming business, which was conducted in the wife’s name only. After three years of marriage, the wife filed a petition for divorce. A trial was held primarily on issues related to property distribution. The husband argued that the cattle and farming equipment was purchased with his separate funds and therefore was his separate property under the prenuptial agreement. The husband also alleged that the wife had discarded or destroyed numerous items of his separate property. The trial court found that the cattle and farming equipment was marital property and divided it equally, and declined to find the wife responsible for the items that had been discarded or destroyed. The husband now appeals. We affirm, concluding that the evidence does not preponderate against the trial court’s decision.

Johnnie Mae Hall and Theresa Diane Jones, Co-Administrators for the Estate of Billy Wayne Jones, Deceased v. Andrew Stewart, et al.
W2005-02948-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Kay S. Robilio

This is a wrongful death case. On appeal, Ms. Theresa Diane Jones (Ms. Jones) and Ms. Johnnie Mae Hall (Ms. Hall) contend that two erroneous admissions of evidence unfairly influenced the jury’s award of damages for the wrongful death of Mr. Billy Wayne Jones (Mr. Jones). The jury found that Mr. Jones suffered damages in the amount of $100,000 but also found that he was 49% at fault. The jury’s verdict resulted in a net recovery of $51,000. Ms. Jones and Ms. Hall request a new trial of the action they instituted against Fullen Dock & Warehouse, Inc. (Fullen Dock), whose employee ran over Mr. Jones with a bulldozer, resulting in his death. Specifically, Ms. Jones and Ms. Hall argue that the trial judge abused her discretion in admitting evidence of Mr. Jones’s prior medical history during the cross-examination of their own medical expert and of Mr. Jones’s prior guilty plea and conviction for cocaine possession six years prior to his death. Finding no abuse of discretion, we affirm.

C & W Asset Acquisition, LLC, as Assignee of Chrysler First Financial Services Corporation v. Donald H. Oggs - Dissenting
E2006-01251-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge John B. Hagler, Jr.

I respectfully dissent from the majority’s opinion. I would reverse the Trial Court and
remand this matter for entry of judgment as requested and as proven by the plaintiff.

C & W Asset Acquisition, LLC, as Assignee of Chrysler First Financial Services Corporation v. Donald H. Oggs
E2006-01251-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge John B. Hagler, Jr.

In this suit for breach of contract, the assignee of a loan agreement alleged that the defendant was in default of the agreement and requested judgment for monies advanced, plus interest and attorney’s fees. The defendant denied owing the debt. The trial court found the plaintiff had failed to carry its burden of proof and dismissed the case. Upon our determination that the evidence does not preponderate against the finding of the trial court, judgment in favor of the defendant is affirmed.