COURT OF APPEALS OPINIONS

R. Scott Martin v. John Curtis King
E2002-03055-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Billy Joe White
This is a breach of contract case. R. Scott Martin ("Plaintiff") sued John Curtis King ("Defendant"), alleging that Defendant had breached his agreement to give Plaintiff a 3% interest in Defendant's landfill venture. The trial court found that the parties' agreement did not pertain to or cover the particular landfill business out of which Plaintiff sought a 3% interest. The trial court did conclude that Plaintiff was entitled to a judgment against Defendant for $4,500 for monetary contributions made by Plaintiff in connection with the parties' agreement. Plaintiff appeals, contending that the trial court erred in finding that a novation had occurred, in admitting parol evidence, and in calculating damages. We affirm.

Roy Malone vs. Scott Probasco
E2002-03135-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Frank Brown, III
In this appeal from the Circuit Court for Hamilton County the Plaintiff/Appellant, Roy Michael Malone, Sr., argues that the Trial Court erred in granting the Defendant/Appellee, Scott L. Probasco, Jr., a summary judgment. We affirm and remand.

In Re: Estate of Ilene S. Ramey
E2003-00544-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Richard E. Ladd
At issue in this appeal is whether this will contest action, brought by Tommy Snapp and Eddie Snapp as intestate heirs at law, is barred by the applicable two-year statute of limitations found at T.C.A. 32-4-108. Plaintiffs have challenged the validity of the will of Ilene S. Ramey on grounds that it was executed outside the presence of two witnesses as required by T.C.A. 32-1-104. In their complaint they allege that the witnesses to the will were wrongfully coerced by their employment supervisor, Defendant Sherri H. Jones, to sign affidavits falsely stating that they were in the presence of Ms. Ramey when she executed her will. The Trial Court held the action to be time-barred because it was filed more than three years after admission of the will to probate, ruling that "under the authority of Phillips v. Phillips, 526 S.W.2d 439 (Tenn.1975), the Complaint alleges no facts that could amount to a concealment of the claim." The Court dismissed the complaint under Tenn.R.Civ.P. 12.02(6) for failure to state a claim upon which relief can be granted. We affirm.

Lynn Raiteri Ex Rel. Mary Cox v. NHC Healthcare
E2003-00068-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Harold Wimberly
Lynn Raiteri, as the daughter and next friend of the late Mary Helen Cox ("Mrs. Cox"), sued NHC Healthcare/Knoxville, Inc. ("the defendant"), as well as others, for the wrongful death of Mrs. Cox, whose death allegedly resulted from improper care at the defendant's nursing home. We granted the plaintiff's Tenn. R. App. P. 9 application for an interlocutory appeal in order to review the trial court's order granting the defendant's motion to compel mediation and arbitration pursuant to the dispute resolution procedures contained in the defendant's nursing home admission agreement. We reverse.

Conchita Johnson vs. Greg Johnson
E2003-00130-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Ben W. Hooper, II
The Trial Court entered Judgment for back child support, ordered increase in continuing child support, and awarded custodial parent attorney's fees. Father, who sought change of custody, appealed. We affirm.

Clarence Matz, et ux vs. Wuest Diagnostics
E2003-00167-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Wheeler A. Rosenbalm
Defendants granted summary judgment in medical malpractice action on grounds the statute of limitation had run. On appeal, we vacate and remand.

Angela Taylor vs. Douglas Fezell
E2002-02937-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas R. Frierson, II
In post-divorce action by husband, the Trial Court refused to void trust provision in Marital Dissolution Agreement and calculated child support. Husband appealed, we affirm.

Bobby Cunningham v. Terry Lester
M2002-00887-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: J. B. Cox
This dispute arises from an auction sale of real property. The trial court awarded plaintiff buyer specific performance of one contract and denied specific performance of a second contract. We affirm.

J.S. Haren Company vs. Kelly Services
E2002-03116-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Sharon J. Bell
This appeal asserts that the Trial Court erred in entering judgment against the Appellant/Defendant, Kelly Services, Inc., for breach of contract. We reverse and dismiss the judgment of the Trial Court and remand.

Judy Longmire vs Kroger
E2002-03119-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Wheeler A. Rosenbalm
In this action for damages for injuries suffered when plaintiff fell on defendant's premises, the Trial Court granted defendant summary judgment. On appeal, we vacate and remand.

Steve Conklin vs. State
E2002-03130-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Approximately seventeen years ago, Steve Conklin (Plaintiff") was convicted by a jury in the McMinn County Criminal Court of raping a child under the age of thirteen years. Plaintiff's conviction was affirmed by the Court of Criminal Appeals in 1987. Plaintiff was represented by appointed counsel, Fredric J. Chester, Jr. ("Chester"). Chester represented Plaintiff both at trial and on the direct appeal. Many years later, Plaintiff was granted post-conviction relief based on ineffective assistance of counsel and a new trial was ordered. The State of Tennessee ("State") declined to retry Plaintiff, who then was set free. Plaintiff filed this lawsuit in the Claims Commission ("Commission") against the State seeking monetary compensation for the alleged legal malpractice of Chester which Plaintiff claims resulted in his being imprisoned improperly for fourteen and one-half years. According to Plaintiff, Chester should be deemed a state employee because he was appointed by the court. The State disagreed and filed a motion to dismiss the complaint. The State argued that the Commission lacked subject matter jurisdiction over Plaintiff's legal malpractice claim because Chester was not a "state employee". The Commission dismissed the lawsuit solely because Plaintiff failed to respond timely to the State's motion to dismiss. We hold Chester was not an employee of the state and, therefore, the Commission lacked subject matter jurisdiction over Plaintiff's legal malpractice claim. The result reached by the Commission is affirmed.

State vs. E.G.P.
E2003-00433-COA-R3-CV
Trial Court Judge: C. Van Deacon
The Juvenile Court of Bradley County ordered that a placement should be found by the Department of Children's Services ("DCS") for a sixteen-year-old mother with her two and one-half-year-old child, the latter of whom had been in foster care most of his life. Time constraints were imposed and DCS did not or was unable to comply with the judgment, which resulted in a finding of contempt. The DCS appeals, and presents a litany of issues for review, one of which alleges that the juvenile court lacked jurisdiction to adjudicate a placement. The judgment is vacated in toto and the case is remanded.

Donald Lacy v. Wesley Cox
E2003-00709-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Richard R. Vance
Donald R. Lacy ("Plaintiff") sued Jennifer Brandon for damages arising from an automobile accident. After deliberating for approximately two hours, the jury asked the Trial Court if they were required to award Plaintiff any monetary damages if they found fault on the part of Brandon. Based on the question, Plaintiff surmised the jury's deliberations were not going his way. As a result, Plaintiff moved for a voluntary dismissal without prejudice, believing he was entitled to do so as a matter of right. The Trial Court, also believing Plaintiff was entitled to dismiss his lawsuit without prejudice as a matter of right even though the jury was deliberating, granted the motion. We conclude Plaintiff was not entitled to voluntarily dismiss his lawsuit without prejudice as a matter of right at that stage in the proceedings, and as a consequence the dismissal is with prejudice.

James Wilkerson vs. PFC Global
E2003-00362-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: W. Dale Young
On May 3, 2002, James and Judith Wilkerson ("Plaintiffs") filed this lawsuit against PFC Global Group, Inc. ("PFC") claiming PFC had defaulted on a Promissory Note. Plaintiffs also sued Don and Brenda Dorris who had personally guaranteed PFC's debt to Plaintiffs. All three Defendants were served with process on May 16, 2002, and their attorneys entered an appearance on Defendants' behalf the following day. Plaintiffs' counsel informed defense counsel that Plaintiffs would move for a default judgment if an answer was not filed by September 6, 2002. When no answer was filed by that date, Plaintiffs moved for and were granted a default judgment. After hearing testimony from Plaintiff James Wilkerson regarding the amount due under the various contracts, the Trial Court granted Plaintiffs a judgment against each Defendant in the total amount of $1,492,353.52, plus an additional $15,000 in attorney fees. Thereafter, Defendants filed a motion to have the default judgment set aside under Tenn. R. Civ. P. 60. After a hearing, the Trial Court determined Defendants were not entitled to relief from the default judgment. We affirm.

E2003-00132-COA-R3-CV
E2003-00132-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Thomas R. Frierson, II

Doris Cannon vs. Peninsula Hospital
E2003-00200-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Harold Wimberly
Criminal proceedings against the Plaintiff involving a controlled substance were dismissed upon the Plaintiffs agreement to pay the costs. She thereupon filed this action for damages for malicious prosecution, which was dismissed on motion for summary judgment because the Plaintiff could not prove a necessary element: that the prosecution was terminated in her favor, because she agreed to pay the costs of the criminal prosecution. We affirm.

Donna Taylor v. Doris Holt
E2003-00901-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Telford E. Forgerty, Jr.
Steve Godfrey prepared his last will and testament on his computer and affixed his computer generated signature at the end. He had two neighbors witness the will. Mr. Godfrey died approximately one week later. Doris Holt ("Defendant"), Mr. Godfrey's girlfriend, submitted the will for probate. Donna Godfrey Taylor ("Plaintiff"), Mr. Godfrey's sister, filed a complaint alleging, in part, that the will was not signed and claiming that Mr. Godfrey had died intestate. The Trial Court granted Defendant summary judgment holding there were no undisputed material facts and that all legal requirements concerning the execution and witnessing of a will had been met. Plaintiff appeals. We affirm.

02825-COA-R3-CV
02825-COA-R3-CV
Trial Court Judge: Jacqueline E. Schulten

Aziza Kljajic v. Mirzet Kljajic
M2002-01294-COA-R3-CV
Authoring Judge: Judge Royce Taylor
Trial Court Judge: Muriel Robinson
This case raises the question of jurisdiction over a nonresident, in a divorce filed by a Tennessee resident who also seeks custody of the parties' minor children, child support and attorney fees. We hold that the court has jurisdiction to grant the divorce and award custody but does not have jurisdiction to award child support or attorney fees.

Tony Baldwin v. Board of Paroles
M2002-01428-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Irvin H. Kilcrease, Jr.
A prisoner in the custody of the Tennessee Department of Correction became eligible for parole after serving over twenty years of his sentence. The Parole Board conducted a hearing, and voted to deny him parole. They also decided to defer further parole consideration for another twenty years. The prisoner filed a Petition for Writ of Certiorari, which the trial court denied. We reverse the deferral, because we find that the decision to defer further parole consideration for so many years constitutes an arbitrary exercise of the Parole Board's authority.

Tamara Fontaine v. Weekly Homes
M2002-01651-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Russell Heldman
Defendants/appellants appeal the trial court's denial of their motion to compel arbitration. We affirm.

Linda Bradley v. John Waderker
M2002-02017-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Ross H. Hicks
A driver and the passengers in his 1993 Ford Explorer appeal a non-jury judgment of the Circuit Court of Montgomery County. The Ford Explorer collided with a police cruiser at an intersection in the City of Clarksville. The trial court held both drivers to be equally at fault and dismissed the case. We affirm the trial court.

Ken Stephens v. Roane State Community College
M2001-03155-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Irvin H. Kilcrease, Jr.
This is a sexual harassment case. The plaintiff was a tenured professor at the defendant college. In 1996, one of the professor's students filed a complaint of sexual harassment with the college, alleging that the professor engaged in unwelcome sexual conduct and created a hostile educational environment. After a hearing, an administrative law judge determined that the professor had committed the acts charged. Consequently, the professor was suspended without pay for six months. The professor appealed the administrative decision to the trial court. The trial court upheld the decision, using a deferential standard of review, and the professor filed the first appeal in this case. On appeal, this Court reversed and remanded for a review de novo on the record. On remand, the trial court reviewed the case de novo on the record and again upheld the ALJ's decision. The professor now appeals. We affirm, finding that the trial court did not abuse its discretion in refusing to allow the professor to testify in person at the rehearing on remand, and that the trial court did not err in finding that the ALJ's decision was supported by clear and convincing evidence.

Judith Walker v. City of Cookeville / Cookeville Regional Medical
M2002-01441-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: John J. Maddux
This appeal involves an employment dispute between the Cookeville Regional Medical Center and a senior management employee. After the hospital's chief executive officer removed the employee from her position as Interim Assistant Administrator and Director of Quality Management, the employee resigned and filed suit in the Circuit Court for Putnam County alleging that the hospital breached her employment contract by declining to pay her the severance benefits required by her employment contract. Following a bench trial, the court found that the hospital had breached the employment contract and awarded the employee severance benefits, prejudgment interest, and discretionary costs. The hospital argues on this appeal that the employee was not entitled to severance pay because (1) she had voluntarily resigned, (2) the parties understood that the employee's appointment as assistant administrator was not permanent, and (3) the employee's demotion did not materially alter her duties or status. We affirm the judgment because the hospital breached the employee's contract when it demoted her and declined to pay her the severance benefits required by her employment contract.

Kim Hickerson v. Andrew Dearing, III
M2002-02210-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: L. Craig Johnson
This is a malpractice action filed by Appellant against his criminal defense attorney in a case resulting in his conviction by a Coffee County jury of selling cocaine a Class C felony. While this civil case was pending on appeal the underlying criminal conviction of Appellant was affirmed by the Court of Criminal Appeals and the Supreme Court denied his application to appeal. Based upon Gibson v. Trant, 58 S.W.3d 103 (Tenn.2001), we affirm the action of the trial court in dismissing the case.