COURT OF APPEALS OPINIONS

Gretchen Bish vs. Sofamor
W1998-00373-COA-R9-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: John R. Mccarroll, Jr.
These are consolidated interlocutory appeals of products liability suits against the manufacturers of spinal fixation devices. The trial court dismissed plaintiffs' negligence per se claims based on the alleged violation of the Food, Drug and Cosmetics Act (FDCA) and the Medical Device Amendments (MDA). In one of the cases, the trial court also granted defendants' motion in limine to exclude all Federal Drug Administration (FDA) regulatory evidence information and documents concerning the fixation devices. Plaintiffs appeal the rulings of the trial court.

Sarah Anita James vs. Susan Kay Swindell
E1999-02407-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: L. Marie Williams
This appeal arises out of an automobile accident. The Defendant lost control of her vehicle, crossed three lanes of traffic, and hit Plaintiff's vehicle. Plaintiff suffered injuries and sued Defendant for damages. A jury trial ensued. The jury found Defendant to be 100% at fault and awarded $15,000 in damages to Plaintiff. The Plaintiff filed a motion for a new trial alleging juror misconduct and presented a juror's affidavit in support of her position. The Defendant untimely presented counter affidavits by jurors. The trial court judge granted a new trial based on juror misconduct. At the second trial the jury found the Defendant 100% at fault and awarded Plaintiff $27,608.60 in damages. On appeal, the Defendant claims that the trial court erred in failing to grant Defendant's motion for a directed verdict and in granting a new trial. We affirm the trial court's denial of a directed verdict for the Defendant and reverse the trial court's granting of a new trial based on juror misconduct. We remand the case to the trial court for the reinstatement of the jury verdict at the first trial.

State ex rel Cihlar vs. Crawford
M1999-00517-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Betty Adams Green
This appeal involves Thomas Matthew Cihlar's second attempt to obtain a judicial declaration that he is the father of a child whose mother was married to another man when the child was born. On this appeal, the estranged husband of the child's biological mother asserts that Mr. Cihlar's petition to establish parentage was foreclosed by Evans vs. Steelman. We have determined that the current parentage statutes are constitutional and that they authorize not only Mr. Cihlar, but also the State and Mr. Cihlar's child, to file an action to establish Mr. Cihlar's paternity. Accordingly, we affirm the juvenile court.

Lawson vs. Lawson
M2000-00729-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Samuel E. Benningfield
The General Sessions Court of Van Buren County awarded the wife a divorce, divided the marital property, and awarded the wife rehabilitative alimony. On appeal the husband attacks the property division and the amount of the alimony. Because the record does not provide a basis for properly assessing the issues raised by the appellant, we affirm with a memorandum opinion.

Johnson vs. Traughber
M1999-02472-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Mccoy
Appellant, Edward Johnson, is an inmate in the Tennessee Department of Corrections, and in this case, he has filed a Petition for Common Law Certiorari to review a denial of parole by the Board of Paroles. The Chancery Court of Davidson County sustained a motion to dismiss his petition, and we affirm the judgment of the Chancellor.

Goggin Truck Line Co. vs. Brake Pro
M1999-01277-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Lee Russell
This appeal arises from a breach of contract case initiated by Goggin Truck Line Company, Inc. ("Goggin") against Brake Pro, Inc. ("Brake Pro"). Goggin sought payment for unpaid freight shipping services provided to Brake Pro. In addition, as provided for under a company tariff, Goggin sought recovery of an additional amount because of the necessity to initiate legal action. The court below found in favor of Goggin. Brake Pro appeals.

Charles High vs. P.D.Q. Disposal, Inc., et al
M1999-02310-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Irvin H. Kilcrease, Jr.
Plaintiff/Appellant, Charles I. High, appeals dismissal of his pro se complaint filed in the Chancery Court of Davidson County, Tennessee, seeking judicial review of the denial of his application for unemployment benefits. The trial court dismissed the complaint for failure to join indispensable parties. We affirm the Chancellor.

Israel vs. Williams
M1999-02400-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Russell Heldman
This appeal presents the issue of whether the trial court was correct to grant summary judgment against Plaintiffs regarding their suit for damages resulting from alleged negligent misrepresentation by Defendants. Plaintiffs claim that Defendants made negligent misrepresentations regarding the condition of their house prior to the sale of the house to Plaintiffs. Summary judgment was granted by the trial court. Upon review of this record, we affirm the judgment of the trial court.

Shelbourne vs. Shelbourne
M1999-02557-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Muriel Robinson
The trial court granted the wife a divorce, awarded her custody of the parties' minor child, divided the marital property, and ordered the husband to pay rehabilitative alimony for two years. We affirm

Church vs. Perales
M1997-00227-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Barbara N. Haynes
This appeal involves a dispute between an elderly patient and her physicians regarding their treatment of a severe post-operative infection caused by a bowel perforation that occurred during gynecological surgery. The patient filed suit in the Circuit Court for Davidson County against five physicians and a hospital alleging medical battery and malpractice. The trial court granted a summary judgment to the physicians and the hospital and dismissed the patient's case. On this appeal, the patient takes issue with the summary judgment granted to her gynecologist, a consulting general surgeon, and the gynecologist attending her following surgery in her gynecologist's absence. We have determined that the trial court properly dismissed the patient's medical battery and informed consent claims against her gynecologist. However, we have also determined that the three physicians have not demonstrated that they are entitled to a judgment as matter of law on the patient's medical malpractice claim based on the delay in diagnosing and treating the bowel perforation.

Christopher Woods vs. Ellis Woods
W1999-00733-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: D'Army Bailey
This appeal arises from a dispute between Plaintiff Christopher Lamar Woods and Defendant Ellie Joan Woods regarding Mr. Woods' financial obligations under the parties' final decree of divorce. The trial court approved the ruling of the arbitrator, which was that Mr. Woods is responsible for the expense of Ms. Woods' "tummy tuck" and breast reduction surgery but is not responsible for the expense of Ms. Woods' Obagi cream treatments, collagen injections, lip implants, and other topical procedures. For the reasons set forth below, we affirm the ruling of the trial court.

25840-COA-R3-CV
25840-COA-R3-CV
Trial Court Judge: Samuel H. Payne

Larry Ward on behalf of Antonio Ward
W1999-01324-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Kay S. Robilio
This is a dispute between Plaintiff Larry D. Ward and Defendants A.C. Gilless, Jr., The Shelby County Sheriff's Office ("Sheriff's Office"), Ted Fox, and The Shelby County Division of Public Works ("Division of Public Works") regarding the cause of an automobile accident that resulted in the death of Reco Antonio Ward ("Decedent"), Mr. Ward's son. The trial court found that the Decedent was negligent, that the Decedent's own negligence was the proximate cause of his death, and that any negligence on the part of the Defendants was exceeded by the negligence of the Decedent. For the reasons set forth below, we affirm the ruling of the trial court.

Ella Pruett vs. Wal-Mart
W1999-01026-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Plaintiff sued employer under Americans With Disabilities Act and case was tried before a jury. After a jury verdict for plaintiff, defendant moved for judgment notwithstanding the verdict which the court granted. Plaintiff has appealed. The record reflects that defendant failed to move for a directed verdict at the conclusion of all of the evidence and also reflects that no judgment was entered on the jury verdict. Appeal dismissed.

Richardson vs. Miller
M1997-00205-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Marietta M. Shipley

Richardson vs. Miller
M1997-00205-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Marietta M. Shipley

Mills vs. Solomon
M1998-00393-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert E. Corlew, III
These proceedings began when David Mills filed a complaint seeking to condemn an easement across Linda Solomon's property. In bifurcated proceedings, the jury first determined the location of Mills' easement across Solomon's property and, later, found that Solomon was entitled to an award of damages totaling $11,908 for the easement, including $9900 in incidental damages. On appeal from the trial court's judgment entered on the jury's verdict, Mills challenges only the award of $9900 in incidental damages. We agree with Mills' contention that the record fails to contain material evidence to support the award of incidental damages, and we reverse that portion of the trial court's judgment.

Kenneth L. Bonner vs. TN Dept. of Correction
M1999-00343-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen Hobbs Lyle
The petitioner contends that the trial court erred in dismissing his petition regarding the Department of Correction's calculation of his release eligibility date. An adjustment of the release eligibility date, made subsequent to the filing of this appeal, has rendered most of the petitioner's arguments moot. As to the remaining issue, we affirm the dismissal of the petition because we agree with the trial court that it lacked jurisdiction to consider the petition.

Heathman-Wood vs. Wood
M1999-00341-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Leonard W. Martin
This is a post-divorce child custody case. When the mother and father divorced, by agreed order, they gave custody of their minor child to the child's maternal aunt and uncle. The aunt and uncle later petitioned the trial court to allow them to move with the child to another state. The father then sought custody of the child. The trial court found that the father had failed to prove a change in circumstances warranting a change in custody from the aunt and uncle. Consequently, the father's petition for custody was dismissed and the aunt and uncle's petition to move to another state was granted. We reverse, finding that an erroneous legal standard was used. The cause is remanded for a determination of whether granting the father's petition for custody would result in substantial harm to the child.

Welborn vs. Sellars
M1999-00164-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Robert E. Corlew, III
This is an insurance case. The plaintiff was driving a motorcycle when he was involved in an accident with an automobile driven by an uninsured motorist. The plaintiff's motorcycle was not listed in his insurance policy. The plaintiff filed suit seeking damages for his injuries sustained in the accident. The plaintiff's insurance company moved for summary judgment in the case based on an exclusion in the plaintiff's insurance policy which denied uninsured motorist coverage for vehicles for which insurance was not afforded under the policy. The trial court granted the insurance company's motion and the plaintiff appealed. We affirm, finding that the policy exclusion applies to the plaintiff's motorcycle.

International Flight Center vs. City of Murfreesboro
M1999-00324-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Royce Taylor
This appeal arises out of a dispute between Plaintiff International Flight Center ("IFC") and Defendants City of Murfreesboro ("City") and City of Murfreesboro Airport Committee ("Airport Committee") regarding the alleged breach of a lease agreement and the nonpayment of certain property taxes. The trial court granted a judgment in favor of IFC in the amount of $174,718.00 plus ten percent prejudgment interest. Additionally, the court ruled that the City is estopped from collecting the property taxes allegedly owed to the City by IFC. On appeal, we reverse the trial court's finding that the City breached the parties' 1989 lease agreement, vacate the court's ruling regarding the jet fuel equipment that was purchased by IFC but that remained at the Airport following the expiration of the parties' 1989 lease agreement, remand the cause for further findings of fact regarding this jet fuel equipment, affirm the court's ruling regarding the matter of prejudgment interest to the extent hereinafter discussed, and reverse the court's ruling that the City is estopped from collecting the real and personal property taxes allegedly owed to the City by IFC.

American Airlines vs. Johnson
M1999-02390-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Carol L. Mccoy
American Airlines, Inc., appeals the trial court's final judgment denying its request for a refund of use taxes paid on aviation fuel purchased out of state during the years 1992 through 1995. We affirm the trial court's judgment.

Ross vs. Campbell
M1999-01805-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Ellen Hobbs Lyle
An inmate in custody of the Tennessee Department of Correction brought an action for declaratory judgment contending that the Department failed to give him all sentence credits due. The trial court granted the respondent's motion for summary judgment and we affirm on the basis that no genuine issue of material fact was shown.

Hartsville Hospital vs. Bay Nat'l Bank & Trust Co.
M1999-01276-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: C. K. Smith
This appeal arises from a dispute over the ownership of monies held in a bond fund. Hartsville Hospital Incorporated ("Hartsville") filed suit against Bay National Bank ("Bank") seeking the contents of the fund. The court below entered judgment for Hartsville, holding that Bank had no claim to the bond fund money pursuant to a release agreement between the parties and that Hartsville was not estopped from asserting ownership. Bank appeals.

Huffer vs. State
M1999-01278-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
The claimants sought to hold the State liable for the personal injuries and deaths caused in an automobile accident on U.S. Highway 64 in Franklin County. After first holding that the State's negligence was the cause of twenty-five percent of the damages, the Claims Commissioner modified his findings and concluded that the State had a discretionary function immunity and that the sole proximate cause of the accident was the negligence of the driver of the automobile in which the injured persons were riding. We affirm on the proximate cause issue.