COURT OF APPEALS OPINIONS

Roy V. Smith, II v. Grace Hutchison (Blair)
W2003-00214-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Charles V. Moore, Jr.

Father filed a petition for an initial determination of custody against the Mother. Father alleged that he was the fit and proper person for the custody of the child. Based on the evidence presented at trial, the juvenile court entered a judgment and permanent parenting plan which found that the Mother was more comparatively fit to continue serving as the primary residential caregiver. Father appeals the trial court’s judgment. We affirm.
 

Patricia A. Dye and Roger L. Quillen, Co-Administrators of the Estate of Jimmy Doyle Dye, Deceased, et al. v. R. Louis Murphy, M.D., et al.
W2003-01521-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Clayburn L. Peeples

This appeal arises from the trial court’s award of summary judgment to the Defendant in a medical malpractice action. The trial court awarded summary judgment based on the statute of limitations. We affirm.
 

Linda Ward, Individually and as Natural Child and Surviving Next of Kin of Nellie M. Curlin, Deceased v. Ami Sub (SFH), Inc., et al.
W2003-00965-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Rita L. Stotts

This appeal arises from a medical malpractice action. The trial court awarded Defendant Luis A.
Fiallo, M.D., summary judgment based on the statute of limitations and statute of repose. We
affirm.
 

Samuel Timothy Collins v. Knox County, Tennessee, et al.
E2003-01421-COA-R3-CV
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Judge Wheeler A. Rosenbalm

This appeal arises out of a complaint filed by the Appellant, Samuel Timothy Collins, against the
Appellee, NBC Bank, for damages he allegedly incurred as a consequence of his erroneous arrest and incarceration by the Knox County Sheriff’s Department. We affirm the judgment of the Trial Court.

Samuel Timothy Collins, v. Knox County, Tennessee, et al., - Concurring
E2003-01421-COA-R3-CV
Authoring Judge: Judge Charles D. Susano
Trial Court Judge: Judge Wheeler A. Rosenbalm

I concur in the result reached by the majority. I do so because I believe the record before us
reflects undisputed material facts that negate an essential element of the plaintiff’s cause of action, i.e., the element of “proximate causation” of the appellant’s damages. I do agree with the appellant that there remains a genuine issue of material fact for the trier of fact as to the element of “cause in fact.” I believe a jury could reasonably find that there is a “cause and effect relationship between the defendant’s tortious conduct and the plaintiff’s injury or loss.” White v. Lawrence, 975 S.W. 2d 525, 529 (Tenn. 1998). As the Supreme Court has pointed out, “cause in fact” addresses the “‘but for’ consequences of an act.” Id. However, in my judgment, the conduct of the Sheriff’s Office, once the deputies arrived at the bank and thereafter took the appellant into custody, conclusively militates against a finding of proximate causation tying the bank’s conduct to the appellant’s damages.

Mark Edward Igou v. Dinah Carol Igou
E2003-00253-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor W. Frank Brown, III

Mark Edward Igou ("Husband") sued Dinah Carol Igou ("Wife) for a divorce. After trial, the Trial Court awarded Wife alimony only to the extent of requiring Husband to "pay all cost of tuition, books, fees, and other charges relating to [Wife's] obtaining a master's degree whether it's in education or any other related field which will increase her compensation" with the restrictions that Wife must complete the course of study within five years from the entry of the Trial Court's order and that Wife must achieve passing grades. Wife appeals the Trial Court's judgment as to alimony and attorney fees. We affirm.

Janice Forsyth, et al., v. Mary N. Cross
E2003-01338-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Chancellor Frank V. Williams, III

This is a boundary-line case. The Defendant's survey evidence was excluded, and reputation evidence offered by the Plaintiff as to the common boundary line was admitted. Defendant appeals. We affirm.

John F. McCarthy v. UT- Battle, L.L.C
E2003-02052-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Judge Russell E. Simmons, Jr.

The Plaintiff was an at-will employee of the Defendant when he was terminated for an asserted cause. In this action he alleges that he was wrongfully terminated because the Oak Ridge National Laboratory Handbook afforded him a contractual right of peer review. The motion of the Defendants for summary judgment was granted upon a finding that the Handbook was not an employment contract. We affirm.

Linda G. Johnson v. Mark Reineke, et al.
E2003-01972-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Chancellor Jerri S. Bryant

The Petitioner was discharged from her executive position as Director of the Lenoir City Housing Authority for misconduct connected with her employment. The Authority was awarded McKinney Act funds, an audit of which revealed that $156,000.00 of these funds were inappropriately expended, which led to the discharge of the Petitioner.

Danny R. Blalock v. Carolyn S. Blalock
E2003-01151-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Judge Rex Henry Ogle

A mediated agreement provided that Husband would sell his one-half interest in Pigeon Forge property to Wife for $500,000.00, but if the purchase price was not paid in one year, the property would be sold at auction and the net proceeds divided. The property was sold at auction for $244,429.00, net. Wife claims this amount plus $255,271.00 and the trial court agreed.

Joseph Spivey v. Terry Page, et al.
M2002-00674-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

This appeal involves a question of valuation of the shares of a withdrawing shareholder from a professional corporation. We reverse the trial court's determination that the shares had no value and hold that the valuation should have been made as of the date of withdrawal. We also hold that the withdrawing shareholder may recover the value of his shares from the sole remaining shareholder who removed the corporation's assets after the notice of withdrawal.

J.L. Mac-TN, Inc. v. - State of Tennessee, et al.
M2003-01057-COA-R3-CV
Authoring Judge: Judge William B. Cain

J.L. Mac-Tn, Inc. and the State contracted for J.L. Mac's provision of tire shredding services at the various county disposal facilities requiring those services. Subsequent to that contract, the state legislature established new procedures for tire disposal requiring the counties to find an end use for the shredded tires, and eventually prohibiting the land filling of shredded tires. The amount of services required of J.L. Mac under the contract were significantly reduced. J.L. Mac commenced this action seeking damages for alleged breach of the contract for shredding services. The Claims Commission granted summary judgment to the State. From that summary judgment J.L. Mac appeals. We affirm.

Jason G. Gulvartian v. Shenna Hope Gulvartian
E2002-03117-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Judge William H. Russell

The Trial Court in this divorce action awarded child support for the two children of the parties and attorney's fees to the mother. The father appeals. We affirm, as modified.

The Bradley Factor, Inc., v. Pat Holmes
E2003-01571-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Chancellor Jerri S. Bryant

In this action based on a personal guaranty agreement, the Trial Court determined there were no disputed issues of material fact and awarded summary judgment on the agreement. Defendant has appealed. We affirm.

Farmers Mutual of Tennessee v. Athens Insurance Agency, Charles W. Spurling and wife, Carolyn Spurling
E2003-01258-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Judge John B. Hagler, Jr.

In a declaratory judgment action by the insurance company, the Trial Court held insured was entitled to recover under the policy and awarded prejudgment interest and imposed bad faith penalty. We affirm in part and reverse in part.

Fred Slaughter, et al., v. Laura Leigh Slaughter, et al.
E2003-01146-COA-R3-CV
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Chancellor G. Richard Johnson

In this appeal from the Chancery Court for Washington County the Appellant, Daniel Bruce Crowe, contends that the Chancery Court erred in finding Mr. Crowe and his attorney in contempt and in its award of attorney fees. We affirm and remand.

Dominic Pellicano v. Metropolitan Government of Nashville and Davidson County
M2003-00292-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge Carol L. Soloman

Plaintiff, who had a pre-existing herniated disk, was rear-ended in a vehicular accident seven weeks after the first injury. A diskectomy was performed six months later. Treating physician equivocated when asked whether the diskectomy was necessitated by the second injury, testifying, "maybe yes; maybe no." Trial court found that Plaintiff's need for surgery was caused by incident and awarded Plaintiff judgment against Defendant for all medical expenses related to the surgery, lost wages and pain and suffering. Plaintiff did not present sufficient proof to establish that incident was cause in fact of need for surgery for physician could not state with reasonable degree of medical certainty that need for surgery was the result of the incident. Further, lay testimony of Plaintiff and Plaintiff's brother was insufficient to prove cause in fact of Plaintiff's need for surgery. Accordingly, we reverse the trial court.

In re: M.E.A. by: Elizabeth Joy Argo Exum, et al. v. Kimberly Darlene Moody, et al.
W2003-01669-COA-R3-PT
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Larry McKenzie

This is an appeal of a termination of parental rights case. Appellant mother contends that the
petitioners have no standing to bring the petition and also that the petitioners failed to prove by clear and convincing evidence the grounds for termination and that the termination was in the best interest of the child. We affirm.
 

Basil Marceaux v. The Citizen David Norton
E2003-02199-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor W. Frank Brown, III

Basil Marceaux (“Plaintiff”) filed this lawsuit against “The Citizen David Norton.” David Norton (“Defendant”) is the Soddy Daisy City Court Judge. Plaintiff brought this lawsuit because Defendant had found him guilty of violating the Tennessee Financial Responsibility Law and imposed a fine. Plaintiff claims these actions by Defendant violated his federal constitutional rights. The Trial Court dismissed Plaintiff’s complaint after concluding, inter alia, that Defendant was judicially immune. Plaintiff appeals, and we affirm.

William W. York v. Tennessee Board of Probation and Parole
M2003-00822-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

Appellant is an inmate of the Department of Corrections serving two life sentences for two first degree murder convictions with sentences imposed in 1978. He became eligible for parole, and on July 3, 2001, a hearing was held before the Tennessee Board of Probation and Parole. His application for parole was denied on July 3, 2001 and review of parole was set for July of 2011. Final disposition denying parole was entered October 2, 2001. On October 29, 2001, Appellant petitioned for a writ of certiorari in the Chancery Court of Davidson County, Tennessee, which petition was dismissed by the trial court on January 10, 2003. We affirm the trial court Order of Dismissal relative to the merits of the denial of parole but hold that postponement of parole review until July of 2011 was an arbitrary exercise of power by the parole board and, therefore, reverse the Order of the trial court.

Honnie Gunnoe, et al., v. Gerald Lee Lambert, et al., v. L.D. Simerly, et al.
E2003-01283-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor G. Richard Johnson

Honnie Gunnoe and Virginia Ott Gunnoe ("Plaintiffs") sued their neighbors, Gerald Lee Lambert and Janice Lee Lambert ("the Lamberts") and L.D. Simerly and Geraldine Simerly ("the Simerlys") seeking, among other things, to quiet title to a parcel of land. After a bench trial, the Trial Court found, inter alia, that Plaintiffs did not own the land in question. Plaintiffs appeal. We affirm.

Charles Beard, Sr., v. Florence E. Beard
E2003-02131-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Jacqueline E. Schulten

Charles Beard, Sr. ("Father") filed a petition seeking to have primary residential custody of the parties' two children transferred from Florence E. Beard ("Mother") to him. In the alternative, Father sought a reduction in his child support payments. After a hearing, the Trial Court refused to change the custody arrangement, again designating Mother the primary residential parent. The Trial Court did not alter Father's child support payments. Father appeals. We affirm.

Morgan Susanne Foxx v. Steven C. Bolden
E2002-02831-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge W. Dale Young

Morgan Susanne Foxx (“Wife”) sued Steven C. Bolden (“Husband”) for a divorce. After a lengthy trial, the Trial Court granted the parties a divorce, divided the marital property, and awarded Husband $25,000 in attorney fees. Wife appeals claiming, among other things, that the Trial Court erred when it failed to classify any of Husband’s TVA funded retirement pension as marital property and equitably distribute it. Wife also claims the award of attorney fees to Husband was an abuse of discretion. We agree with Wife regarding the pension and, therefore, vacate the judgment as to the marital property division and remand this case to the Trial Court to determine how much of Husband’s TVA funded retirement pension is marital property and to make an equitable distribution of all the marital property, including this additional asset. We likewise vacate the award of attorney fees to Husband since the propriety of that award may be affected by the marital property distribution. We affirm the granting of the divorce.
 

Karen Lee Haney Fletcher v. John Marc Fletcher
W2003-00715-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Chancellor Joe C. Morris

Husband-appellant appeals order of the trial court holding him in civil contempt and designating punishment and the order of the trial court denying motion to modify alimony order. The notice of appeal was filed 30 days from the date of the trial court’s order denying the motion to modify but the filing was approximately one year after the contempt order. On appeal, we dismiss the appeal of the contempt order as untimely and affirm the order denying modification. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Dismissed in Part, Affirmed in Part and Remanded W. FRANK CRAWFORD, P.J.,

B&L Corporation, v. Thomas and Thorngren, Inc., et al.
M2002-02355-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Carol L. McCoy

Plaintiff corporation sued former employees/officers alleging breach of non-compete
agreements, breach of fiduciary duty, conversion, unfair competition, intentional inducement to
breach a contract, and unjust enrichment. The trial court granted employees summary judgment on all claims and, on appeal, this Court affirmed the trial court’s grant of summary judgment on breach of non-compete agreements and conversion of intangible personal property claims. This Court reversed the summary judgment on the remaining claims and remanded the case for trial. The pending case on remand was voluntarily dismissed in the trial court and, subsequently, plaintiff sued defendants for the same remanded claims. Defendants moved to dismiss on the doctrine of res judicata (splitting cause of action) and the trial court denied the motion. After a trial on the merits, the trial court entered monetary judgment against defendants. Defendants appeal. We affirm in part as modified and reverse in part.