COURT OF APPEALS OPINIONS

Robert Steven Johnson, v. Tennessee Farmers Mutual Insurance Company
E2004-00250-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Judge Dale C. Workman

The issue for jury resolution was whether Tennessee Farmers Mutual Insurance Company refused in bad faith to settle a damage suit against Johnson by Moore within his policy limits of $25,000, and exposed him to a final judgment of nearly $200,000.00. Johnson’s defense entirely focused on his asserted non-liability, not withstanding that Moore’s medical expenses exceeded $75,000, and his injuries were serious and permanently disabling, thus reasonably indicating that if Johnson was found to be negligent, the percentage of his fault necessarily would have to be minimal in light of his insurance limits. An unidentified van forced Johnson to crash head-on into Moore, and the jury allocated 50% of Moore’s damages to Johnson and 50% to the van. After this allocation was affirmed on appeal, Johnson sued Tennessee Farmers Mutual Insurance Company, claiming that Moore’s claim could have been settled for his policy limits. Tennessee Farmers Mutual Insurance Company presents a host of issues, beginning with the refusal of the court to direct a verdict, and continuing with complaints of the trial judge commenting on the evidence and refusing corrective jury instructions. The judgment is reversed for the latter two reasons. 

Robert Steven Johnson v. Tennessee Farmers Mutual Insurance Company - Dissenting
E2004-00250-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Dale C. Workman

I concur with the majority’s decision affirming the trial court’s denial of Tennessee Farmers Mutual Insurance Company’s motion for directed verdict, but I respectfully dissent from the majority’s decision reversing the jury’s verdict based on the jury charge and comments to the jury. I would affirm the jury verdict in favor of the Plaintiff, Robert Steven Johnson.

Alexander Ford-Mercury, Inc. v. City of Franklin, Tennessee Board of Zoning Appeals
M2004-00246-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Chancellor Donald P. Harris

This is a zoning case involving a free-standing sign. The plaintiff seeks to replace it with another sign which does not conform to a new sign ordinance. The plaintiff seeks the protection of the grandfather statute. The Chancellor held that the grandfather statute did not apply. We affirm.

In Re: R.D.F. and D.L.F.
M2003-02798-COA-R3-JV
Authoring Judge: Judge William H. Inman, Sr.
Trial Court Judge: Judge Donna A. Scott

The attorney for the petitioner was held in contempt for failing to appear as ordered and failing to advise the Juvenile Court of a Chancery action. We hold the evidence does not support a finding of criminal contempt.

Robert Steven Johnson v. Tennessee Farmers Mutual Insurance Company - Concurring/Dissenting
E2004-00250-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Dale C. Workman

I agree with both Judge Inman’s and Judge Lee’s Opinions that Tennessee Farmers
Mutual Insurance Company was not entitled to a directed verdict in this case.

In Re: A.Y.M. and A.N.W., Jr.
M2004-00313-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Barry Tatum

A.N.W., Sr., father, alone appeals the termination of his parental rights as to two children, A.Y.M. and A.N.W., Jr., the youngest of which had been removed from parental custody at birth due to the child's addiction to cocaine. A.N.W., Sr., challenges the trial court's findings that DCS exercised reasonable efforts to provide family services, that A.N.W., Sr., failed to substantially comply with permanency plan goals, that A.N.W., Sr., had abandoned these two children, and that the best interest of the children required termination of parental rights. We affirm the trial court's findings in all respects and remand the case for such other proceedings as may be necessary.

Mary Jo Earl Headrick vs. William H. Headrick, Jr.
E2004-00730-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge William H. Russell

This appeal arises from a divorce in which the husband appeals the trial court's classification of separate and marital property as well as the division of these assets. The trial court reserved the issue of the wife's request for attorney's fees. Since all issues were not adjudicated by the final decree, the order was not final pursuant to Tenn. R. App. P. 3(a). Accordingly, we hold that this appeal is premature and dismiss and remand to the trial court.

Randy Alan Barnes v. Amy Robertson Barnes
W2004-01426-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge George H. Brown

This is a divorce case. In contemplation of a divorce grounded on irreconcilable differences, Husband and Wife entered into a Marital Dissolution Agreement. Subsequently, Husband filed a complaint for divorce, and the complaint, inter alia, disavowed the prior executed Marital Dissolution Agreement. The divorce case proceeded to trial, and the trial court granted the divorce on the ground of inappropriate marital conduct and enforced the Marital Dissolution Agreement,  dividing the marital property and debt. Husband appeals. Because Husband-Appellant repudiated the Marital Dissolution Agreement prior to the entry of the trial court’s Final Decree of Divorce, there was no agreement between the parties, and the Marital Dissolution Agreement should not have been enforced. We reverse and remand.

State of Tennessee, ex rel., Brandi Shantika Taylor v. Cedrick Cortez Wilson
W2004-00275-COA-R3-JV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Kenneth A. Turner

Appellant challenges trial court’s dismissal of his petition, under Tennessee Rule of Civil Procedure 60.02(4), seeking to rescind his voluntary legitimation of child, modify custody, set aside paternity order and modify child support arrearage, based on results of DNA test that conclusively proves that he is not the father of the child. We reverse.

Sandra Kaye Kemp Parish, et al., v. Jerry Donald Kemp, et al.
W2003-01652-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Ron E. Harmon

This appeal arises out of a complaint filed by Appellants seeking to invalidate certain inter vivos
transfers made by Decedent as well as the Wills executed by Decedent while living with Appellees. After a hearing in which a jury received evidence from numerous witnesses and exhibits, Appellants sought a directed verdict on whether, as a matter of law, the burden to prove the validity of the Wills and the inter vivos transfers shifted to Appellees. The trial court denied this motion, and the jury returned a verdict in favor of Appellees, upholding Decedent’s Last Will and Testament and the inter vivos transfers. Review by this Court is sought by Appellants, and, for the following reasons, we reverse.
 

In Re F.R.R., III
M2004-02208-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Alfred L. Nations

This appeal involves the termination of a biological father’s rights to his non-marital child. When the child was almost five years old, his mother and her husband filed a petition in the Williamson County Juvenile Court seeking to terminate the biological father’s parental rights and to adopt the child. Following a bench trial, the juvenile court determined that the biological father had abandoned the child by willfully failing to visit him and that terminating the biological father’s parental rights would be in the child’s best interests. Accordingly, the court terminated the biological father’s parental rights and approved the adoption. The biological father has appealed.  We have determined that the record contains clear and convincing evidence that the biological father abandoned the child and that terminating the father’s parental rights would be in the child’s best interests.

Bernadette Benson v. Nathan Berryman, et al.
W2004-00489-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge James F. Russell

This appeal arises out of an action by Appellant for a claim of negligence. After the close of
Appellant’s proof, Appellee moved for involuntary dismissal based on the lack of evidence
concerning the actions of the emergency vehicle involved in the automobile accident. The trial court granted the motion on this basis, and Appellant now seeks review by this Court. We affirm.
 

Deborah Kay Parker Hoxit Ohme v. Frderick Herman Ohme, IV
E2004-00211-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Thomas R. Frierson, II

This is a divorce case. The trial court granted Deborah Kay Parker Hoxit Ohme ("Wife") a divorce from Frederick Herman Ohme, IV ("Husband"), divided the parties' marital property and debts, and awarded Wife transitional alimony of $500 per month. In addition, the court approved Wife's parenting plan, in which she was designated as the primary residential parent of the parties' child, and ordered Husband to pay child support of $854 per month. Husband appeals the granting of the divorce to Wife, the division of debt, the award of alimony, and the trial court's decree regarding responsibility for transporting the parties' child to and from visitation. We affirm.

Richard D. Vatt, et al. v. A.L. James d/b/a A.L. James Construction Company
E2004-00785-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Jacqueline E. Schulten

This case involves the alleged breach of a real estate sales contract. The plaintiffs argue that the defendant home builder is in breach of contract because he refused to sell them the house contracted for unless, in addition to the price stated in the contract, they paid him for costs attributed to changes in construction. None of these changes were implemented pursuant to written change orders as required under the contract. The builder countersued arguing that the changes for which he sought payment were agreed to orally after the contract was executed, that the written change order requirement of the contract was waived, and that the plaintiffs breached the contract by refusing to pay him the original contract price, plus the amount attributed to the changes. The trial court entered judgment in favor of the defendant. We affirm in part, reverse in part and remand.

In Re: Estate of Billy F. Hawk, Jr.
E2004-00877-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor W. Frank Brown, III

This case involves a petition filed by the co-executors of the Estate of Billy F. Hawk, Jr. to approve a sale of real estate partially owned by the Estate. The issue presented is whether the trial court should have approved the private sale. The trial court held that the proposed sale was not in the best interest of all the beneficiaries of the Estate. The proposed buyer appeals. We hold that the trial court’s decision was not contrary to the preponderance of evidence, nor was it arbitrary or capricious, and therefore, affirm the trial court’s judgment.

Union County Education Association v. Union County Board of Education and Dr. James Pratt, Superintendent of the Union Cty Schools
E2004-00820-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Billy Joe White

We dismiss this appeal from a granting of summary judgment because the appeal was not from a final judgment and the issues are moot.

Christa A. Avenell v. James Allen Gibson
E2004-01620-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

Christa A. Avenell,¹ sometimes referred to herein as “the plaintiff,” brought this action against James Allen Gibson (“the creditor”), seeking to recover funds taken out of the Avenells’ two joint accounts by their bank in response to a levy of execution. The trial court held that the 1988 amendment to Tenn. Code Ann. § 45-2-703 (2000) changed the law with respect to bank accounts held by individuals as tenants by the entirety; that Mrs. Avenell failed to prove she was entitled to the levied upon funds; and that the creditor was entitled to retain the funds paid into court by the Avenells’ bank. The plaintiff and her husband appeal. We reverse.

Christa A. Avenell vs. James Allen Gibson - Dissenting
E2004-01620-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

I agree with the majority opinion’s analysis until it undertakes consideration of the 1988 amendment to Tenn. Code Ann. § 45-2-703(a). As quoted in the majority opinion, the amendment states:

Any balance so created, including, without limitation, any balance held by spouses, shall be subject to assignment by, or the claim of any creditor of, either depositor, as if such depositor were the sole owner of the funds; provided that is such creditor realizes its claim by any means other than enforcement of an assignment, pledge, or the grant of a security interest made by any one (1) of such depositors, any other depositor not indebted to the creditor may, by commencing a separate action against the creditor, establish such rights as that depositor may have in the funds.

Allstate Insurance Company v. Robert E. Watson
M2003-01574-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Allstate Insurance Company paid a fire loss to the landlord then brought an action against the tenant asserting subrogation rights. The trial court held the tenant to be blameless as to the fire but found him liable under the terms of the lease, which provided that the tenant would be "responsible for all damages to the apartment, intentional or non intentional". Since we find the tenant to be an additional insured under the Allstate policy, no subrogation rights exist, and we reverse the trial court.

Margie Marie Lynn, et. al. v. Expediters Express, Inc., et. al.
M2003-01777-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Carol L. Soloman

Plaintiff sued her employer for misrepresentation relating to health insurance coverage and sought to recover amounts incurred by her husband for medical bills. The trial court found for plaintiff awarding her treble and punitive damages. We reverse the trial court's finding of treble and punitive damages and affirm the trial court's award of a refund to plaintiff for amounts contributed as premiums.

In Re: A.R.G.
M2004-00894-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Betty Adams Green

The trial court terminated the parental rights of both parents of A.R.G., DOB 12-26-2000. Only Mother, C.S., appeals. Grounds for termination were substantial noncompliance with a permanency plan and failure to remedy conditions in her life permitting the child's return in the near future. We affirm the action of the trial court.

In Re: B.L.R. (D/O/B 7/18/98) and J.F.R. (D/O/B 7/18/98)
M2004-00915-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Buddy D. Perry

This is a termination of parental rights case wherein J.R.R., who is neither the biological father of the twins nor the husband of the mother of the twins, resists the termination of his parental rights. The trial court terminated his parental rights, and we affirm the judgment.

In Re: M.O.
M2004-01602-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Buddy D. Perry

This appeal involves the termination of a biological father's parental rights with regard to his nine-year-old daughter. After determining that the child had been sexually abused by her father, the Tennessee Department of Children's Services filed a petition in the Circuit Court for Grundy County seeking to terminate the father's parental rights. Following a bench trial, the trial court determined that the father had committed severe child abuse and that his daughter's interests would be best served by terminating his parental rights. The father asserts on this appeal that the Department failed to present clear and convincing evidence that he had committed severe child abuse. We have determined that the record contains clear and convincing evidence that the father committed severe child abuse and that terminating his parental rights is in his daughter's best interests.

Kevin K. McCrary v. City of Memphis
W2004-01840-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge D'Army Bailey

City of Memphis challenges judgment of trial court finding the city liable, under the Governmental Tort Liability Act, for negligence of a police officer that proximately caused injuries to a criminal suspect who was being placed under arrest. City contends that the trial court erred in admitting into evidence the statement of police officer taken during a police department internal investigation; in finding that the officer’s actions were negligent instead of intentional; and in failing to apply properly the correct standard of care. Finding no error, we affirm the judgment of the trial court.

Deborah Shorter v. The Tennessee Department of Children's Services, et al.
M2003-02713-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Jim T. Hamilton

A grandmother, who lost custody of her grandchildren in Juvenile Court proceedings, sued the Department of Children's Services ("DCS") and its employee in Circuit Court alleging defamation. The trial court dismissed the suit based upon immunity. We affirm the dismissal of DCS and affirm the employee's dismissal on alternative grounds.