COURT OF APPEALS OPINIONS

Kenneth Varney v. Heather Roemer
M2000-03234-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Arthur E. Mcclellan
This is a post-divorce custody case in which Father alleged a change of circumstances due to step-father disciplining the two minor children in an inappropriate manner, Mother not being able to provide a stable and consistent home and school environment, the children experiencing emotional problems while in Mother's home, and Mother voluntarily relinquishing custody. The trial court found that Father failed to demonstrate a change of circumstances warranting change of custody. Although the two children had been living with Father, the court refused to change the initial award of custody to Mother. We find that the evidence preponderates against the trial court's determination regarding changes in circumstances and that, by focusing on one alleged incident of inappropriate discipline, the court failed to consider other circumstances relevant to the inquiry.

John T. King v. Anne B. Pope, Commissioner of The Tennessee
M2000-02127-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Ellen Hobbs Lyle

Pero's Steak and Spaghetti House and Louis Inn, v. Elizabeth Jean Hinkle Lee and First American National Bank and First Tennessee Bank National Association
E2001-00254-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Dale C. Workman

Plaintiffs action against First Tennessee Bank National Association (“Bank”) was held to be time-barred by the Trial Judge pursuant to Tenn. Code Ann. §47-3-118. Plaintiffs have appealed to this Court.

Chuck Robertson v. Melvin G. George, et al.
M2000-02661-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This lawsuit arises out of a real estate contract. The plaintiff, Chuck Robertson, a residential home builder, contracted to purchase sixteen (16) lots from the defendant, Melvin George. After the parties entered into the contract, the plaintiff discovered that the official flood plain designation had been adjusted to include nine (9) of the lots the plaintiff contracted to purchase and filed suit on the theories of intentional misrepresentation, negligent misrepresentation, mutual mistake, unjust enrichment, and violation of the Tennessee Consumer Protection Act. The defendants filed a counter-complaint for breach of contract. The parties filed cross-motions for summary judgment. The trial court dismissed the plaintiff's action holding that the mistake was a mistake of law. We affirm in part, reverse in part, and remand.

Theresa Ann Sapp Staples v. Richard Charles Staples
M2000-02838-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Judge C. L. Rogers

This is a post-judgment domestic relations case. The principal alleged issue is whether a non-custodial parent may be judicially coerced to exercise visitation privileges. The appealed Order is not imperative and the asserted issue is not a genuine one. Because the judgment is marginally ambiguous we modify it to incorporate a measure of fairness.

Timothy Dale Rieder v. Patricia Ann Cawley Rieder
M2000-02466-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Judge Jeffrey F. Stewart

The mother of a seven-year-old daughter asserts that the court awarded custody of the child to the father because the mother is homosexual. We find, however, that the court did not base its award on sexual orientation and that the evidence in the record supports the award of custody to the father. Therefore, we affirm.

Brenda Jane (Thompson) Turnbo v. Joe LarryTurnbo
M2000-02415-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Judge Stella L. Hargrove

A divorce judgment rendered June 5, 1992 required the appellant to pay, inter alia, the sum of $185,000 to his wife "as a fair and equitable division of the marital property." The appellant elected recalcitrance rather than compliance, and failed to pay. He was found in civil contempt in September 2000 and ordered to be confined until he purged himself of contempt. We affirm.

Ahmad Vakili, et al., v. Randy Hawkersmith, et al.
M2000-01402-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor John W. Rollins

This case arises from a home construction contract entered into by Appellants and Appellee. Appellants filed a complaint against Appellee in the Chancery Court for Coffee County for breach of contract. Appellee filed an answer and counter-complaint. The trial court found that the contract was a cost-plus contract with no cap or ceiling on the price, and rendered judgment in favor of Appellee for $26,945.10. Appellants appeal. We affirm the trial court.

Susan R. Godfrey, et al., v. Jesus Ruiz, et al.
M2000-00101-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Barbara N. Haynes

This case arises from an automobile accident resulting in personal injuries to plaintiffs. The defendants, Mr. & Mrs. Ruiz, filed a motion for summary judgment on the grounds that their cousin, Mr. Corpus, was driving their vehicle without their permission or knowledge at the time of the accident. The trial court granted the motion and plaintiffs appeal. Plaintiffs assert that under Tenn. Code Ann. § 55-10-311, defendants are not entitled to summary judgment based solely on their own self-serving affidavits and depositions. We affirm the summary judgment

Susan R. Godfrey, et al., v. Jesus Ruiz, et al. - Dissenting
M2000-00101-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Barbara N. Haynes

I do not believe that the prima facie evidence created by Tennessee Code Annotated section 55-10-311 can be overcome as a matter of law solely by the affidavits and testimony of owners of a vehicle who have a vital interest in the outcome of the case.

Louis M. Brunsting, III, M.D., et al., v. Phillip P. Brown, M.D., et al.
M2000-00888-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

Four physicians formed a PLLC. Eventually personal and professional conflicts arose. Various claims were asserted that Drs. Brown and Barton had violated the Operating Agreement of the PLLC; Dr. Brunsting sought declaratory relief, and monetary damages for breaches of contract and fiduciary duty; Dr. Rankin alleged that Drs. Brown and Barton had effectively withdrawn from the PLLC. The Chancellor found the Drs. Brown and Barton by their actions constructively withdrew from the PLLC which he declined to dissolve. The fees awarded to the plaintiff's attorneys are the principal issue on appeal, together with issues involving the continuing viability of the PLLC.

K.S.O.H., et al v. J.W.B., Jr. In Re: Adoption of a Male Child
E2001-00055-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Carey E. Garrett

The mother ("Mother") and stepfather ("Stepfather") of a minor child ("Child") filed a Petition to Terminate the parental rights of the Child's biological father ("Father"). The Petition to Terminate alleged one ground for termination of Father's parental rights, abandonment. After three hearings, the Juvenile Court held that the Petition to Terminate should be dismissed because Mother and Stepfather failed to establish by clear and convincing evidence that Father had abandoned the Child and because termination of Father's parental rights would not be in the Child's best interests. Mother and Stepfather appeal. We affirm.

William B. Shearron, et al., v. The Tucker Corporation, et al.
M2000-00624-COA-R3-CV
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Judge James E. Walton

This is a nuisance case. The plaintiff landowners sued the developer of a subdivision adjacent to their property for digging a drainage ditch that caused frequent flooding. The defendant developer filed counter-claims, including an allegation that the plaintiffs and the previous owners of his property had conspired to breach the agreement to sell the property to the developer. The developer also argued that the city had taken steps to alleviate the flooding. The trial court found that the developer had created a permanent nuisance by changing the natural flow of water across his property, and dismissed the developer's counter-claims. On appeal, we affirm the trial court's finding of a nuisance, but conclude that the circumstances created both a temporary and a permanent nuisance, and remand for recalculation of damages based on this holding.

Jack Jones v. Melvin Johnson
M2002-01286-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Soloman
This suit arose from the deliberate destruction of a walnut tree on the plaintiffs' property. The trial court awarded the plaintiffs $5,500 in damages. The defendant argues on appeal that the court used the wrong measure to calculate damages, and that the judgment should not have exceeded $1,000. We affirm the trial court.

Barry Ralston vs. Gina Henley
M2001-02274-COA-R9-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Carol L. Soloman
This interlocutory appeal involves a dispute between divorced parents regarding the education of their eight- and ten-year-old daughters. Four years after the Circuit Court for Davidson County awarded the parents joint custody of their children with the mother receiving primary physical custody, the mother unilaterally decided to withdraw the children from public school and to home school them over the father's objection. After the trial court denied his request to enjoin the mother from removing the children from public school, the father perfected this Tenn. R. App. P. 9 appeal seeking review of the trial court's decision that the mother had the sole prerogative to make decisions regarding the children's education. We have determined that an interlocutory appeal will prevent needless, expensive, and protracted litigation. Accordingly, we grant the interlocutory appeal and vacate the trial court's order denying the father's petition to enjoin the mother from removing the parties' children from public school in accordance with Tenn. R. App. P. 10(b).

Earl Van Winkle, et al vs. City of LaVergne
M2000-01784-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert E. Corlew, III
This appeal involves the disputed ownership of water lines. The City of LaVergne appeals the trial court's ruling that the city was the owner of the water lines and responsible for their continued maintenance and repair. LaVergne also appeals the trial court's award of $3037.31 to the Van Winkles. For the reasons set forth below, we affirm the ruling of the trial court.

Eddie Cooley v. Joe May
M2001-01162-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Buddy D. Perry
This appeal involves a state prisoner's efforts to obtain an accounting for the sentence credits he earned while incarcerated in the Sequatchie County Jail. After the prisoner discovered that the Tennessee Department of Correction had received no information from the Sheriff of Sequatchie County regarding his sentence credits, he filed a petition for writ of mandamus in the Circuit Court for Sequatchie County seeking to compel the sheriff to calculate his sentence credits and forward the information to the Department. The sheriff filed a pro se response asserting that the prisoner forfeited any sentence credits he may have earned by violating his parole. Thereafter, the District Attorney General for the Twelfth Judicial District moved to dismiss the prisoner's petition for lack of subject matter jurisdiction. The trial court granted the motion and dismissed the petition. The prisoner has now appealed. We have determined that the trial court erred by concluding that it lacked subject matter jurisdiction to consider the prisoner's petition. Accordingly, we reverse and remand the case for further proceedings.

Kenneth Hughes, et ux. v. Estate of Elizabeth Haynes
M2002-01896-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Floyd Don Davis
This appeal involves a claim filed against an estate for recovery for personal services rendered by claimants, husband and wife, to the decedent. The probate court granted the claim. Estate appeals. We reverse.

Johnny Jenkins v. Kemper Insurance Co.
E2001-00154-WC-R3-CV
Authoring Judge: Sr. Judge John K. Byers
Trial Court Judge: James B. Scott, Jr.

Dept.of Children's Svcs. vs. D.R., et al
E2000-01381-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: William Terry Denton
These parents of three minor children ("Children") were arrested in April 1998, while the Children were with them, for possession of a firearm, drug possession, and public intoxication. The State of Tennessee, Department of Children's Services ("DCS"), filed a Petition for Temporary Custody of the Children which was granted. Thereafter, DCS entered Plans of Care with the Juvenile Court with which the parents, D.R. ("Mother") and L.M.R. ("Father"), had agreed. The Children remained in foster care for eighteen months during which time the parents were to work toward completing the goals set forth in the Plans of Care so they could be reunited with the Children. In August 1999, DCS filed a Petition to Terminate Parental Rights. The Juvenile Court Referee heard this petition in October 1999, and granted it. The Juvenile Court Referee's Termination of Parental Rights and Final Decree of Guardianship was entered in April 2000 and confirmed by the Juvenile Court Judge in June 2001. Both Mother and Father appeal. We affirm.

Dawn A. Dugan v. Elliott R. Myers (Deceased),
E2001-00281-COA-R3-JV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John L. Kiener

Dawn A. Dugan v. Elliott R. Myers (Deceased), Et Al.
E2001-00281-COA-R3-JV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John L. Kiener

Ben Doubleday vs. Larry Hargrove
M2000-02648-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Tamra L. Smith
This is an action to recover the balance due on a contract for the sale of timber. The purchaser's defense was impossibility of performance, because the seller had allegedly destroyed access. The seller testified that the purchaser cut and removed 95 percent of the timber, while the purchaser said he removed only about 40 percent owing to lack of access. The trial judge awarded the seller a judgment for the balance owing less some off-sets not relevant here. We affirm.

Lori Castle vs. Jeffrey Baker
E2000-02772-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John S. Mclellan, III
These parties were divorced in May 1992. Custody of their daughter, Brittany, then 5 years old, was awarded to Mother pursuant to an Marital Dissolution Agreement [MDA] which obligated Father to pay $575.00 monthly support. About three months after the divorce was granted, the custodial care of Brittany was transferred to Father, by agreement of the parties and without recourse to the Court. In June 1998, Mother sought contempt liability against Father alleging that he was in arrears with his child support obligation in the amount of $40,800.00: at trial, the amount was stipulated to be $36,800.00. Father responded by filing a petition for change of custody, alleging that Brittany had resided with him for several years, a material change in circumstances. He also sought forgiveness of the arrearage. The Trial Court found a change in circumstances and awarded custody of Brittany to her father who was also credited with the monetary value of the necessities he furnished Brittany from August 1992 through February 1997. Mother appeals. We affirm.

Parks Properties, et al vs. Maury County, et al
M1997-00235-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: William B. Cain
Parks Properties and Columbia Warehouses, Inc. have filed a petition pursuant to Tenn. R. App. P. 39 requesting a rehearing of this court's August, 17, 2001 opinion. We requested and have now received an answer to this petition on behalf of Maury County and Judy Langsdon. Parks Properties and Columbia Warehouses insist that our conclusion that they lacked a protectable property interest in constructing the two warehouses without installing the automatic required sprinkler systems is based on our "misunderstanding that the warehouses would have contained tobacco or other combustible products." They assert that "there was never any evidence before the trial court that the warehouses would be used to store tobacco or other combustible products." This argument misses the point. The lynchpin of our opinion is that the record contains no evidence (1) that the Parks family ever told any county official that tobacco and other combustible materials would not be stored in these warehouses and (2) that the Parks family never sought a waiver of the automatic sprinkler requirements under Section 402.4.1 exception