COURT OF APPEALS OPINIONS

Aabert F. Joseph v. Ex Parte
M2004-01651-COA R3-CV
Authoring Judge: Judge William H. Inman, Sr.
Trial Court Judge: Judge Thomas W. Brothers

The appellant filed an ex parte petition for name change, but failed to pay a portion of the filing fee (20%). The petition was dismissed. We affirm.

Sandra Claudine Morrow Howard v. Mark Anthony Howard
02660-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Jerri S. Bryant

The Trial Court’s classification, evaluation and division of marital property was appealed by the
husband. We affirm the Judgment of the Trial Court.

John Jay Hooker v. Bill Purcell
M2003-03107-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia C. Bonnyman

Plaintiff appeals the denial of his Tenn. R. Civ. P. 60.02(3) motion by which he sought to be relieved from a final judgment that dismissed his complaint for failing to state a claim upon which relief could be granted. Plaintiff argues that the order dismissing his action was "void" because the trial court lacked jurisdiction to dismiss his action. We affirm.

In re: Estate of Roy W. Barnett, Deceased
W2003-02530-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor George R. Ellis

This appeal arises out of a claim filed against Decedent’s estate by the Bureau of TennCare.
Decedent’s estate filed an exception to the claim arguing that such claim was barred because
Decedent was not provided with notice of the State of Tennessee’s recovery provisions as required by section 71-5-118(l) of the Tennessee Code. The trial court found that the Bureau of TennCare’s claim was barred on the basis that no written notice of the State’s recovery provisions was provided to Decedent or his family members. The Bureau of TennCare brought the instant appeal to this Court, and, for the following reasons, we reverse.
 

Jackson Energy Authority v. William T. Diamond, Jr.
W2004-01090-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Donald H. Allen

This case involves the timeliness of an appeal from General Sessions Court to Circuit Court. The plaintiff utility company sued the defendant building owner in General Sessions Court for past due utility payments. On July 28, 2003, the General Sessions Court entered a judgment in favor of the plaintiff. On August 1, 2003, the defendant filed a petition to rehear, seeking to have the judgment set aside. On August 6, 2003, the General Sessions Court denied the petition to rehear. On August 18, 2003, the defendant filed a notice of appeal for a de novo review in Circuit Court. The Circuit Court dismissed the appeal on the basis that it was not filed within ten days of the final General Sessions judgment entered on July 28, 2003. The defendant now appeals that decision, arguing that the ten-day time limitation was tolled by his General Sessions petition to rehear. We affirm, concluding that the time limitation for filing an appeal to Circuit Court is not tolled by a petition to rehear filed in General Sessions, because no statute grants the General Sessions Court authority to hear such a petition to rehear.
 

Michael Underwood v. Tennessee Department of Correction
W2004-01630-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor J. Steven Stafford

This is a petition for certiorari seeking review of the department’s disciplinary proceedings. The
petitioner, a prisoner, was disciplined for abuse of his telephone privileges. He appealed the
disciplinary charges against him through the administrative process, with no success. He then filed the petition for certiorari in the trial court below, seeking review of the adverse administrative
decisions against him. The trial court dismissed the petition for certiorari, because it was not verified and it did not allege that it was the first application for the writ as required under T.C.A. § 27-8-106. The petitioner now appeals that decision. We affirm.
 

Jerry C. Harlan v. Carol L. Soloman
M2003-01396-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Donald P. Harris

This appeal comes to the court from the trial court's approval of a special master's report. The case was referred to a special master following a jury trial after which appellee Harlan was awarded 16.79% ownership in certain real property which appellant Soloman had purchased. The report did not consider depreciation and other deductions which Harlan had claimed in connection with his alleged ownership of the property. After the court adopted the report Soloman moved to amend the order, arguing that she was entitled to an 83.21% share of those deductions, and that the trial court should amend the report to conform with the motion. The trial court refused. Soloman appeals. We affirm.

Riverside Surgery Center, LLC., et al. v. Methodist Health Systems Inc.
W2004-01195-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor W. Michael Maloan

This case presents the interpretation of a transfer restriction clause in an LLC operating agreement.  The plaintiffs filed a motion for summary judgment requesting a declaration that the defendant, by negotiating for the sale of its interest in the LLC and granting a third-party buyer an option to purchase defendant’s interest, had triggered the plaintiffs’ preemptive purchase rights under the operating agreement. The defendants filed a cross-motion for summary judgment arguing that the transfer restriction clause in the operating agreement was triggered only by written notice of the intent to sell, which was never given. The trial court found that, under the language of the operating agreement, the plaintiffs’ preemptive purchase rights were triggered by the“desire or wish” of the selling member to transfer its interest and that the defendant had the desire or wish to transfer its membership interest in the LLC. The defendant appeals. We affirm.

Annette Marie Thompson Bulick v. Richard Lee Thompson, Jr.
W2004-00816-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge D'Army Bailey

Father/Appellant filed a Petition in Opposition to Mother’s Relocation with the Minor Child.
Trial court found that parents did not exercise substantially equal parenting time under the Parental Relocation Statute, T.C.A. § 36-6-108, and allowed Mother/Appellee to move with the minor child. Father appeals. We affirm.
 

Annette Marie Thompson Bulick v. Richard Lee Thompson, Jr. - Concurring
W2004-00816-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge D'Army Bailey

I agree with the result reached by the majority and generally with the reasoning, but write
separately only on the issue of how the amount of time each parent spends with the child is
calculated, both by the majority and by the trial court. The trial court here looked only at the number
of overnight stays the child had with each parent, and indeed that is typically accurate and easily
ascertained. In some cases, however, it can be misleading, and I believe this is such a case. Here, the child would regularly spend the entire day, through the evening meal, with Father and would be returned to Mother in time for bed. In such a case, the trial court should look at the totality of the circumstances in comparing each parent’s time with their child. I concur in the result reached by the majority because, in this case, I do not believe that looking at the totality of the circumstances would affect the outcome. But where, as here, an involved, dedicated father will have his relationship with his daughter deeply affected by the mother’s relocation, the time each parent spends with the child should be measured as accurately as can reasonably be done.
In all other respects, I concur fully with the majority opinion.

Michael Lynn Martindale v. Margo Miller Martindale
W2003-00712-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Joe C. Morris

This is a post-divorce alimony case. The parties were divorced in 1995 and the mother was awarded rehabilitative alimony for seven years. In 2003, the trial court extended the rehabilitative alimony until the youngest of the parties’ four children graduated from high school. The extension of alimony was based on the demands of being the primary residential parent for the parties’ four young sons, two of whom were found to have learning disabilities. The father appealed the extension of rehabilitative alimony. We affirm.
 

Michael K. Holt v. C. V. Alexander, Jr., M.D., and Jackson Radiology Associates
W2003-02541-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Donald H. Allen

This is a medical battery case. The plaintiff went to the hospital suffering from a kidney stone, and
was admitted for observation. The next morning, the plaintiff was told that he was scheduled to
undergo a procedure to remove the stone. Soon, the defendant physician came to see the plaintiff
and told him that he would be performing an invasive procedure which required significant recovery time. According to the plaintiff, the plaintiff then asked the defendant physician whether his treating urologist had approved of the procedure. The defendant physician responded that he had spoken with the urologist and that the urologist had approved the procedure. The plaintiff then signed a consent form, and the procedure was performed. The plaintiff later learned that the defendant physician had not spoken with his urologist, and that the urologist did not approve the procedure. The plaintiff sued the defendant physician and his medical group for medical battery. The trial court granted summary judgment in favor of the defendants. The plaintiff now appeals. We reverse, finding that a genuine issue of material fact exists as to whether the plaintiff’s consent to surgery was vitiated by the defendant physician’s alleged misrepresentation of fact.
 

Donald M. Taylor v. City of Chattanooga, Police Department
E2004-00701-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge W. Neil Thomas, III

Plaintiff brought a replevin action against defendant to recover his motor vehicle which had been seized by the defendant. The action was initiated in Sessions Court, but transferred by agreement of the parties to Circuit Court. The trial court entered Judgment on behalf of the plaintiff for $8,500.00, having found that the defendant had sold plaintiff's vehicle. We affirm.

A.B.C. v. A.H.
E2004-00916-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Carey E. Garrett

This child custody case presents the following issues: (1) whether the trial court erred in awarding the father custody of the parties' child and (2) whether the trial court erred in ordering the father to pay the mother's attorney fees. We hold that the trial court considered the relevant statutory factors and that the evidence does not preponderate against the trial court's award of custody to the father. We hold that the trial court did not abuse its discretion in ordering the father to pay the mother's attorney fees. Although not raised as an issue on appeal, we note that the father did not request child support from the mother and the trial court did not set child support. We hold that the father did not have the right to waive child support. Accordingly, we affirm the trial court's judgment regarding custody of the child, affirm the award of attorney fees, and remand this cause to the trial court for determination of the mother's child support obligation to the father.

State of Tennessee, Department of Children's Services v. ABB, In the Matter of: LJB, Jr., d/o/b 12/05/1997 and EJB, d/o/b 02/26/1999, Children Under 18 Years of Age
E2004-01306-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Suzanne Bailey

In this action to terminate the parental rights of the mother, ABB, to LJB, Jr., and EJB, the Juvenile Court ordered ABB's rights terminated, and the mother has appealed. We affirm.

Cellco Partnership D/B/A Verizon Wireless, et al., v. Shelby County, Tennessee, et al.
W2003-02942-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Kay S. Robilio

In this case we are asked to construe several instruments related to a parcel of real property. In 1976, Shelby County obtained title to a parcel of property conveyed out of a larger tract and proceeded to construct a water tower on the property. From 1976 to 1982, Shelby County used a gravel road traversing the adjacent lot retained by the original grantor to gain access to the water tower. In 1982, the original grantor proceeded to executea document purporting to grant Shelby County an easement over the gravel road. The original grantor subsequently conveyed the adjacent parcel to a third party, Highway 64 Partners. In 1995, Shelby County entered into a lease agreement with Verizon, allowing Verizon to install a cellular communications antenna on the water tower and granted Verizon an easement over the gravel road. Highway 64 Partners protested Verizon’s use of the gravel road. Verizon filed a declaratory judgment action seeking a declaration of the parties’ rights County, and denied summary judgment to Highway 64 Partners. We affirm.
 

Lamar Tennessee, LLC, d/b/a Lamar Advertising of Nashville v. The City of Hendersonville
M2003-00415-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Tom E. Gray

In 1987, a billboard advertising company obtained a permit to construct a billboard, approximately seventy-five (75) square feet in size, along a stretch of roadway in Hendersonville, Tennessee. At the time of issuance, the applicable zoning ordinance stated the billboard could not exceed eighty (80) square feet in size. Later that same year, the city passed a new zoning regulation providing that billboards could no longer be erected in the area as a primary use. Instead, billboards could only be erected as an accessory use to another primary use on the premises. The new zoning ordinance did not change the maximum allowable size of a billboard, which remained at eighty (80) square feet. Subsequent to the enactment of the new ordinance, the billboard company filed for a permit, pursuant to section 13-7-208 of the Tennessee Code, seeking to demolish the existing billboard and construct a new billboard, at 220 square feet in size, in its place. When the city denied the permit, the billboard company filed an action in the chancery court seeking a declaratory judgment, writ of mandamus, and permanent injunction. The billboard company also filed a motion for summary judgment, which the chancery court granted. The city filed an appeal to this court. We reverse.

Ronda Gaw Brady, et al. v. James Donald Calcote, et al.
M2003-01690-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge John A. Turnbull

This appeal arises out of a shareholder derivative action brought by Appellant in behalf of Community Bank of the Cumberlands against the Appellees, the directors and chief financial officer of the Bank. The trial court granted the Appellee's motion to dismiss and further awarded Appellees their attorney's fees and the Bank its expenses for a Special Litigation Committee. Appellant seeks review by this Court, and, for the following reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Mid-Century Insurance Company v. Virginia Williams, et al.
W2004-00484-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Jon K. Blackwood

Appellant, an insurance company, appeals from trial court’s judgment finding that the
business pursuit and home care service exclusions to personal liability coverage in a homeowners insurance policy did not exclude coverage for accidental death of child who drowned in a bathtub while in the care of Appellee. Trial court found that Appellee’s arrangement to care for decedent was not a business pursuit or home care service within the meaning of the insurance contract, but rather was an informal type of babysitting motivated by love and/or favor for deceased child’s parents. Appellant contends that motivation by profit was irrelevant to whether Appellee was engaged in a business pursuit or home care service, that the evidence preponderates against the trial court’s fact findings, and that trial court erred in finding for Appellees. We reverse the judgment of the trial court, finding that the business pursuit and home care service exclusions do bar coverage under the homeowners policy.
 

Mid-Century Insurance Company v. Virginia Williams, et al. - Partial Dissent/Concurrence
W2004-00484-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Jon K. Blackwood

I write separately to dissent in part from the majority opinion. I agree with the majority’s
analysis of the policy at issue, but disagree with the majority’s conclusion that the evidence
preponderates against the trial court’s finding that the childcare arrangement was not conducted for profit. I certainly agree that the discrepancies in Ms. Williams’ testimony in her two depositions and her trial testimony “suggest . . . deliberate obfuscation” and, if I were the trial judge, I would feel constrained to hold as the majority does, that Ms. Williams’ later testimony was an effort to avoid the consequences of the exclusions from coverage. I am not, however, the trial judge. Here, the trial court’s credibility determination is not based solely on the deposition testimony, ascertained from the transcript. It is also based on Ms. Williams’ testimony at trial, derived from the trial judge’s observation of her demeanor and manner in the courtroom. Given our standard of review for such a credibility determination, I feel compelled, albeit reluctantly, to affirm the trial court’s finding of fact that the childcare arrangement was not conducted for profit.
On this basis, I dissent in part from the majority opinion. In all other respects, I fully concur.

Tennessee Department of Children's Services v. C.D.W.
E2004-00623-COA-R3-PT
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Mindy Norton Seals

This appeal involves the Juvenile Court's termination of the parental rights of C.D.W. ("Mother") to her three oldest children. After a trial, the Juvenile Court held there was clear and convincing evidence that Mother had failed to substantially comply with the terms of her permanency plans, and that the conditions present at the time the children were removed had not been remedied and it was unlikely these conditions would be remedied in the near future. The Juvenile Court also held there was clear and convincing evidence that termination of Mother's parental rights was in the children's best interest. We affirm the judgment of the Juvenile Court.

In Re: Z.M.B.
E2004-00380-COA-R3-JV
Authoring Judge: Judge William H. Inman, Sr.
Trial Court Judge: Judge Carey E. Garrett

This case presents the recurring issue of subject matter jurisdiction of the juvenile courts. The child, nine years old, was born out of wedlock. Paternity was adjudicated in the juvenile court, together with the issues of support and visitation. Years later, father filed a petition in the case alleging a change of circumstances and seeking custody of the child. The juvenile court found a change of circumstances and awarded custody of the child to her father. Mother appeals, insisting that a juvenile court is not vested with jurisdiction to change custody of a child because of a change in the circumstances. The judgment is affirmed.

Shelia L. Godwin v. Fred Sanders
W2003-02239-COA-R3-JV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert W. Newell

This case arises out of a petition to reopen paternity proceedings filed by Appellant. When Appellee refused to submit to a DNA test, Appellant filed a petition to find Appellee in contempt of court. The trial court refused to find Appellee in contempt and determined that Appellee need not submit to a DNA test. Appellant filed her notice of appeal and seeks review by this Court. For the following reasons, we affirm the trial court.
 

State of Tennessee, Department Children's Services v. Lilli Lowery, In the Matter of M.D.B.
E2004-00517-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Mindy Norton Seals

The Trial Court determined there were statutory grounds to terminate the mother's parental rights and that termination was in the child's best interest, all by clear and convincing evidence. On appeal, we affirm.

Bobby R. Posey, and wife, Sabrina Posey, and Dale Teague, et al., v. Dryvit Systems, Inc., et al.
E2004-02013-COA-R9-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge O' Duane Slone

In this appeal we remand to the Trial Court with instructions and lift stay issued by this Court.