COURT OF APPEALS OPINIONS

In the Matter of B.L.R., D.O.B. 10/14/02, a Child Under 18 Years of Age
W2004-02636-COA-R3-PT
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge James H. Bradberry

This appeal involves the termination of the parental rights of a biological father to his infant daughter. The day after the daughter was born, the Department of Children’s Services became involved with the family and learned that both the mother and father were using methamphetamine.  Shortly after the department became involved in this case, the mother took very little interest in her infant daughter. The department implemented several permanency plans calling for father to demonstrate that he remained drug free and was attending counseling to resolve his addiction. When the father failed to attend counseling on a regular basis and continually tested positive for methamphetamine, the department filed a petition to terminate his parental rights. Following a hearing on the petition, the trial court held that the department had proven, by clear and convincing evidence, all the grounds for termination alleged in the petition. The trial court also held that terminating father’s parental rights was in the child’s best interest. Father appealed, and we affirm the trial court’s decision regarding the grounds for termination, however, we vacate the order and remand this case to the trial court for further action consistent with this opinion.

In The Matter Of: C.M.C., C.L.C., and D.A.M.
E2005-00328-COA-R3-PT
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Thomas J. Wright

The trial court terminated Mother's parental rights based on abandonment, substantial noncompliance with a permanency plan, persistence of conditions, and a finding that termination was in the best interests of the children. Mother appeals. We reverse.

City of Jackson, Tennessee v. Walker-Hall, Inc., et al.
W2004-01612-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Roger A. Page

This is an action to recover for damage done to personal property. During the course of a road improvement project, the city placed some heavy equipment and debris alongside the roadway being repaired. An employee of the corporate owner of the land abutting the roadway noticed the debris and an excavator parked adjacent to the roadway during a route inspection of the property. Believing the debris and excavator to be on his employer’s land, the employee had the excavator towed.  Apparently, the towing company selected by the landowner’s property manager severely damaged the excavator during the course of removing it. The city subsequently filed suit against the landowner and several other defendants claiming they had negligently harmed the city’s personal property. The trial court held that the landowner was negligent and committed a trespass against the city. The landowner appealed, and we reverse the decision of the trial court.

Gwendolyn Flowers v. Timothy Flowers
W2004-02853-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Walter L. Evans

Husband in this divorce action appeals from the judgment entered in the trial court. Absent a transcript or statement of the evidence, we affirm.

Becca Jo Maroney v. Brandon Lee Maroney
E2004-01517-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Bill Swann

Becca Jo Maroney ("Mother") and Brandon Lee Maroney ("Father") were divorced in September of 2002. The parties agreed at that time for Mother to be the primary residential parent for the parties' son. In July of 2003, Father filed a petition for change of custody claiming there had been a material change in circumstances and that it was in the best interest of the minor child for custody to be transferred to Father. After a trial, the Trial Court concluded that there had been a material change in circumstances and that designating Father as the primary residential parent was in the best interest of the minor child. Mother appeals. We hold that the evidence does not preponderate against the Trial Court's findings, and the judgment of the Trial Court is affirmed.

ARC Lifemed, et al. v. AMC-Tennessee, Inc.
M2003-02640-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Carol L. Mccoy

This is an action for breach of contract by a limited liability company against its managing member. The other members of the LLC joined as plaintiffs seeking recovery for breach of fiduciary duty and negligent misrepresentation. The managing member counterclaimed against the LLC for breach of contract and, in the alternative, sought recovery in quantum meruit for unjust enrichment. The trial court held the managing member to be liable to all plaintiffs on all issues and dismissed the counterclaim. The action of the trial court is reversed as to breach of fiduciary duty and negligent misrepresentation. The judgment of the trial court is affirmed as to breach of contract and as to dismissal of the counterclaim. The findings of the trial court as to damages payable to the LLC is affirmed as is the distribution of the assets of the LLC. Prejudgment interest is disallowed, and costs are assessed to the managing member.

Lawuan Stanford v. The Commissioner of the Department of Labor and Workforce Development and Altama Footwear
W2004-02373-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor James F. Butler

This appeal arises out of a claim filed by the appellant for unemployment benefits after her termination from her employment. The Tennessee Department of Labor and Workforce Development denied the appellant’s claim for unemployment benefits. The appellant filed an appeal to the Appeals Tribunal of the Department, and, after a hearing, the Appeals Tribunal denied the appellant’s claim for unemployment benefits. Subsequently, the appellant filed an appeal to the Board of Review, which also denied her claim for unemployment benefits and affirmed the Appeals Tribunal. After the Board denied the appellant’s petition to rehear, the appellant sought review by the chancery court. After reviewing the record, the chancery court denied the appellant’s claim for unemployment benefits and affirmed the Board of Review. The appellant now seeks review by this Court. We affirm.

In Re: M.W.M, W.W.M., S.M.M, & A.M.M. - Concurring
M2005-00053-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Jim T. Hamilton

The evidence in this case, both as to termination of parental rights and to the best interest of the children, indicates that termination of parental rights would survive even the ultimate standard of “beyond a reasonable doubt.”

In Re: M.W.M, W.W.M., S.M.M, & A.M.M.
M2005-00053-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Jim T. Hamilton

This appeal involves an imprisoned mother’s efforts to retain her parental rights with regard to four of her eight children. The Tennessee Department of Children’s Services filed a petition in the Chancery Court for Lawrence County seeking to terminate the mother’s parental rights with regard to four of her children residing in Tennessee. Following a bench trial, the court terminated the mother’s parental rights to the three older children based on abandonment under Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv) (Supp. 2004) and terminated her rights to the youngest child based on Tenn. Code Ann. § 36-1-113(g)(6). On this appeal, the mother asserts that the evidence does not support the trial court’s conclusions that she abandoned the three older children and that the interests of all four childrenwould be best served by terminating her parental rights. We have determined that the record contains clear and convincing evidence that the mother abandoned the three older children and that terminating the mother’s parental rights is in the best interests of all four of the children involved in this case.

James W. Clark v. Jim Rose
W2004-02744-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Martha B. Brasfield

Petitioner/Appellant is an inmate in the custody of the Tennessee Department of Correction. This is the second appeal before this Court arising from the Appellant’s filing of the underlying pro se petition for common law writ of certiorari, seeking review of the procedures used by the Tennessee Department of Correction in reaching its decision to keep Appellant confined in administrative segregation. This Court initially remanded the case to the trial court for a determination of whether the inmate’s status was punitive or non-punitive in nature. Upon remand, the trial court determined that his status was non-punitive. Inmate appeals. Finding that the trial court did not abuse its discretion in its determination that inmate’s status was nonpunitive and that, as such, the common law writ of certiorari was not the proper means of challenging his status, we affirm.

State of Tennessee v. Clinton Burns, III
E2004-01632-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Ray L. Jenkins

Clinton Burns, III, (DOB: 06/07/86), a juvenile, was adjudged delinquent by the Knox County Juvenile Court, having been found to have committed the adult offense of aggravated robbery. He appealed to the trial court, which, after a bench trial, affirmed the judgment of the juvenile court.  The defendant appeals, contending that the trial court erred in denying his motion to suppress the testimony of the victim because of the unduly suggestive nature of the procedure used to identify him. He further argues that the trial court erred in refusing to afford him a jury trial. We hold that the trial court properly denied the defendant’s motion to suppress, but that it erred in denying the defendant a jury trial. Accordingly, we affirm the trial court’s order denying the motion to suppress, but reverse the judgment of the trial court affirming the judgment of the juvenile court. Case remanded for a new trial.

State of Tennessee, Department of Children's Services, v. AAB, In the Matter of : NAB, (7/27/99)
E2005-00354-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Thomas J. Wright

The Trial Court terminated the mother's parental rights on statutory grounds. On appeal, we affirm.

I & L Investments, LLC et al. v. Cagle's Construction, LLC et al.
E2005-00654-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Lawrence H. Puckett

I & L Investments, LLC ("I & L"), and Wet Willy's Fireworks Supermarkets of Tennessee, Inc. ("Wet Willy's"), sued Cagle's Construction, LLC, and Ed Cagle (collectively the "Cagles"), seeking to enforce restrictive covenants with respect to real property owned by Cagle's Construction, LLC. The trial court granted the defendants summary judgment, holding that the defendants' tender of $100,000 to I & L as liquidated damages pursuant to the provisions of a document entitled "Settlement and Mutual Release" barred the plaintiffs' attempt to enforce the restrictive covenants. The plaintiffs appeal the trial court's judgment, contending that the court erred in failing to enforce the restrictive covenants against the Cagles in of their plan to construct a building on the property for the purpose of selling fireworks. We affirm.

Curtis Meredith v. Cruthchfield Surveys, et al.
E2004-02460-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John D. McAfee

Curtis Meredith sued Crutchfield Surveys and Jerry Crutchfield for damages allegedly sustained by the plaintiff as a result of incorrect surveys prepared by the defendants. The trial court dismissed the plaintiff's suit. He appeals, asserting that the trial court erred in dismissing his complaint. We hold that the plaintiff's suit was not filed within the time specified in the applicable statute of repose and that the plaintiff's generally-worded charge of fraud fails to satisfy the requirements of Tenn. R. Civ. P. 9.02. Accordingly, the judgment of the trial court is affirmed.

Trammell Cemetery Trust, by and through its duly appointed Trustees, Ralph S. Davis, Herman Trammell and Wendell Trammell vs. Ronnie Yancey and wife, Rita Yancey, and Joe Trammell, Jr., and wife, Linda Trammell, et al.
E2004-01732-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Conrad Troutman, Jr.

In this action, the Trial Court granted appellees summary judgment which adjudicated fewer than all of the claims or rights and liability of all of the parties. We dismiss the appeal from that Judgment and remand with instructions.

State of Tennessee ex rel. William L. Gibbons, District Attorney General v. Club Universe
W2004-02761-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Rita L. Stotts

This is a public nuisance case. The Shelby County district attorney general filed a petition in general sessions court, asking the court to declare a local nightclub a public nuisance and to enjoin the nightclub from further operation. This division of the general sessions court was designated as an environmental court pursuant to Tennessee statute. After a hearing, the environmental court found that the nightclub was a public nuisance and permanently enjoined operation of the nightclub. The nightclub appealed this ruling to both the circuit court, requesting de novo review, and to this Court.  The circuit court held that it did not have jurisdiction to hear the appeal because the appeal would lie with this Court. Because the environmental court had concurrent jurisdiction with the circuit court, we affirm the trial court’s holding that the appeal from environmental court lies in this Court.  Further, we affirm the environmental court’s finding that the nightclub is a public nuisance and the grant of a permanent injunction.

Ricky Gene Campbell v. Wanda Suzanne Campbell
W2004-01608-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Dewey C. Whitenton

This is a child custody dispute involving the appointment of a guardian ad litem. The parties agreed to the appointment of a guardian ad litem. After an investigation, the guardian ad litem recommended that primary custody be awarded to the father. The mother filed a motion to remove the guardian ad litem. The trial court did not do so. After a bench trial, the father was designated the primary residential parent. The mother asserts that the guardian ad litem appointed by the trial court appeared biased towards the father because the guardian ad litem knew the father’s sister. The mother now appeals. We affirm, finding no abuse of discretion in the trial court’s decision not to remove the guardian ad litem.

Mark Smith v. Smith Imports, Inc., et al.
W2004-02022-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge D'Army Bailey

This appeal arises from an order granting summary judgment. The trial court granted summary judgment for one of the defendants and the plaintiff appealed to this Court. After reviewing the record, we dismiss this appeal for lack of subject matter jurisdiction.

Diane Worley vs. White Tire of Tennessee, Inc. and Gazazbo, L.L.C.
E2004-02025-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Richard E. Ladd

The Trial Court entered Judgment for plaintiff for damages from destruction of road over easement and reformed deed. On appeal, we affirm.

Freddie Osborne v. Collier Goodlett
M2003-03118-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Ross H. Hicks

This is a legal malpractice action in which Plaintiff, incarcerated at Turney Center Industrial Prison, appeals the dismissal by the trial court of his action against his court-appointed assistant public defender. Holding the defendant immune from suit under Tennessee Code Annotated section 8-14-209, the trial court dismissed the Complaint. We affirm the action of the trial court.

Linda M. Ferrell v. Charles R. Ferrell
M2003-02435-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Tom E. Gray

Husband appeals the division of marital property. The trial court found Husband did not bring into the marriage as many assets as Wife did, thus awarding a greater portion of the parties' home to Wife rather than Husband. The trial court further found that Husband had dissipated marital assets when he sold the parties' horse riding rings in violation of the statutory injunction. Husband claims that the division of property was not equal and challenges the finding that he dissipated marital assets while not making the same finding with regard to Wife. We affirm.

Rem Noble and Brandt Noble, Individually, and d/b/a/ Noble, Inc. v. Tom Pease, Individually, and Corporate Copy, Inc.
W2004-00439-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Arnold B. Goldin

This case is about the sale of a business. The owner of a copy machine business sold the assets of the
business to a competitor. The buyer purchased the company through a promissory note that required monthly payments. After the sale, the seller and the seller’s son became employees of the buyer.  However, while employed by the buyer, the seller continued to deal in copy machines on the side.  The seller voluntarily left employment, and his son was fired. After the buyer learned of the seller’s side dealings in copiers, the buyer stopped making payments on the promissory note. The seller sued the buyer for failing to make the agreed upon payments. The buyer counter-sued for breach of contract. After a trial, the trial court rescinded the purchase agreement. We reverse, finding that rescission was not an appropriate remedy in this case, and remand for a determination of the appropriate damages.

Marcella A. Chrisman vs. Vance L. Baker, Jr.
E2004-02307-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Russell E. Simmons, Jr.

The Trial Court granted defendant's Motion for Summary Judgment on plaintiff's claim for malpractice. Defendant had represented plaintiff in her representative capacity as conservator, and subsequently as administrator of deceased's estate. The Trial Court held the statute of limitations applied because she knew she had been harmed by defendant's actions more than one year prior to the filing of this action. On appeal, we affirm.

Forrest L. Whaley, et al. v. Jim Ann Perkins, et al.
W2004-02058-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Rita L. Stotts

Purchasers of real property filed suit for breach of contract, negligence per se, intentional misrepresentation, breach of warranty of title, and emotional distress against various parties, alleging that purchasers had purchased the subject property in reliance upon misrepresentations by defendants as to the merchantability of title to the property, only to discover later that the property had been illegally subdivided by defendants. Purchasers contended that they suffered catastrophic pecuniary and other loss as result of alleged misrepresentations, due to extremely limited legal uses that could be made of illegally subdivided parcel. At trial, jury found that each of the defendants had committed intentional misrepresentation, and awarded compensatory damages in the amount of $170,000 and punitive damages in the amount of $5,000. Defendants appeal on numerous grounds. Finding that the trial court erred, we vacate and remand.

Alma Edna Smith v. Don Edward Smith
E2004-02206-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Billy Joe White

Alma Edna Smith ("Wife") sued Don Edward Smith ("Husband") for divorce. The Trial Court entered its Final Decree on July 20, 2004, finding and holding, in part, that both parties were entitled to a divorce and that Wife was to be awarded various items of personal property and the marital home with Husband to assume the indebtedness on this property. Husband received two other parcels of real property and certain items of personal property. Husband appeals the division of property. We modify the Trial Court's property division in this short duration marriage as it concerns the marital home, and we affirm as so modified.