COURT OF APPEALS OPINIONS

In Re M.J.M., Jr., L.P.M., & C.A.O.M. - Concurring
M2004-02377-COA-R3-PT
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Samuel E. Benningfield

I agree fully with the majority’s resolution of this case and the issues raised therein. I write separately, however, to express my concern with the apparent inconsistency in the grounds alleged by the Department. Specifically, while the parents’ failure to make reasonable efforts to provide a suitable home for the first four months after removal of the child from the home is a definition of abandonment, Tenn. Code Ann. § 36-1-102(1)(A), it is questionable to me whether the Department can rely on that ground when it has entered into a permanency plan that gives a parent one year to find stable and suitable housing. The majority found that ground unavailable because the Department did not use reasonable efforts, making it unnecessary to address my concern. I agree with that conclusion, but want to make it clear that some question about reliance on that ground may exist regardless of the Department’s efforts.

In Re M.J.M., Jr., L.P.M., & C.A.O.M.
M2004-02377-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Samuel E. Benningfield

This appeal involves a mother’s efforts to prevent the termination of her parental rights to her three children while she completes her treatment for methamphetamine addiction. After the Tennessee Department of Children’s Services took custody of the children, it devised a permanency plan obligating the mother to address her drug addiction and to complete other remedial tasks within twelve months. However, after six months of the mother’s failed attempts to restore order to her life, the Department filed a petition in the White County Juvenile Court to terminate the mother’s parental rights. Between the filing of the Department’s petition and the hearing, the mother made significant steps toward completing the tasks in the permanency plan. Despite the mother’s progress, the juvenile court terminated her parental rights on the grounds of abandonment, failure to comply with the permanency plan, and failure to remedy the conditions that had required the children’s removal. The mother has appealed. We have determined that the Department has failed to present clear and convincing evidence of one or more grounds for terminating the mother’s parental rights.

Guy G. Bigger, Jr., et al. v. Anthony I. Fields, Guy M. Fields, Patrick E. Smith, et al.
M2004-01489-COA-R3-CV
Authoring Judge: Judge Donald P. Harris, Sr.
Trial Court Judge: Chancellor J. B. Cox

As found by the trial court, appellant, Guy G. Bigger, Jr., was defrauded by Anthony Fields and Guy Fields with regard to the sale of a 332 acre tract of land in Marshall County, Tennessee. The Fields’ conveyed a portion of the tract to the appellee, Patrick Smith. Mr. Bigger brought suit seeking, among other things, to set aside the Fields’ deed to Mr. Smith alleging it to be a fraudulent conveyance. The trial court found Mr. Smith to be a bona fide purchaser who gave adequate consideration for the transfer and denied relief as to Smith. Mr. Bigger appealed challenging the findings of the trial court. We find the evidence does not preponderate against the trial court’s findings and affirm.

In The Matter of: M.J.J.
M2004-02759-COA-R3-PT
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge John P. Hudson

In this termination of parental rights case, the juvenile court terminated the parental rights of the mother and father, and the mother appeals. We affirm.

Robert Brewster, Jr. v. Fayette County Board of County Commissioners, et al.
W2003-01842-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Dewey C. Whitenton

The Fayette County Board of Commissioners denied Plaintiff/Appellant’s application for a change in zoning. The Chancery Court for Fayette County affirmed. We affirm.

Cory D. Holland v. Packard's Service Center, LLC.
M2003–01807-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Carol L. Soloman

Plaintiff claims that his 1990 Nissan with over 200,000 miles was rendered inoperable due to Defendant’s installation of a faulty alternator. He seeks damages for the diminution in the value of the vehicle, wages he allegedly lost while the vehicle was inoperable, and damages under Tennessee’s Consumer Protection Act. Plaintiff’s claims under Tennessee’s Consumer Protection Act were dismissed upon summary judgment. During the trial, the court granted competing motions excluding both parties’ expert witnesses. The jury returned a verdict for the defendant on the remaining claims. Plaintiff appeals. We affirm.

Clifford Wilson v. Gay Lynn Wilson
M2003-02261-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Muriel Robinson

This case involves a dispute over the proper amount of child support to be paid for the parties' two minor children. Father requested a child support adjustment due to the emancipation of the parties' oldest child. He additionally requested a downward deviation of his child support payments due to significant additional parenting time in excess of that contemplated by the Tennessee Child Support Guidelines, as well as, significant additional monies paid for private school and other expenses for the children. The previous court order required Husband to pay $4,100 per month for their three minor children based on an income of $10,000 per month. The trial court determined that Husband's new child support amount for the remaining two minor children would be $3,700 per month. Father argued that the proper amount after the emancipation of their oldest child should reduce his child support to $3,200 per month. Father also argued that he should be entitled to a downward deviation reducing his child support to $1,000 per month for his two minor children. We agree with Father that the trial court incorrectly modified his child support following the emancipation of the parties' oldest child. Although Husband's current income is in excess of $10,000 per month, Wife did not carry her burden of proving that additional child support based on an amount over $10,000 per month is reasonably necessary. Child support should be set at 32% of $10,000, $3,200 per month. With regard to Father's request for a downward deviation of his child support obligation, we find that there has been no change of circumstances since the last court order and that this issue could have and should have been litigated at the time of the previous Order, so the matter is barred by res judicata. Child support is set at $3,200 per month for the remaining two minor children.

State of Tennessee, Department of Children's Services, vs. S.A.M.H.
E2004-02543-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Steven H. Jones

On May 27, 2004, the Juvenile Court Referee entered an order terminating the parental rights of S.A.M.H. ("Mother") to her two minor daughters. The Referee concluded that the State of Tennessee, Department of Children's Services ("DCS") had proven by clear and convincing evidence that grounds to terminate Mother's parental rights existed and that doing so was in the best interests of the children. Pursuant to Tenn. R. Juv. P. 4(c)(2), the Referee was required to inform Mother of her right to request a rehearing before the Juvenile Court Judge as well as the manner and time limits within which to perfect such a request. The Referee inadvertently failed to inform Mother than she had only five judicial days in which to file her request for a rehearing. Mother filed her request for a rehearing one day late. The Juvenile Court Judge dismissed Mother's appeal after concluding that it was untimely and the Referee's decision had become final after five judicial days. We vacate the judgment.

Michael Sowell v. James W. Davis
W2004-02079-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Clayburn L. Peeples

Pro se plaintiff appeals the order of the trial court dismissing his personal injury lawsuit for failure to comply with an order compelling discovery. Because no order compelling discovery was entered by the trial court, we reverse.

In the Matter of: The Estate of Emory B. Pegram, Deceased v. Gregory Baxter Pegram, et al.
W2004-01179-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Robert S. Benham

Appellant, the widow of decedent, appeals from probate court judgment that decedent died intestate. Decedent had executed an individual will, as well as a joint mutual will with Appellant, on the same day. Both wills executed by decedent contained revocation clauses purporting to revoke all prior wills. Neither Appellant, nor the witnesses to the execution of the wills, could recall the order in which Decedent executed the wills. Probate court held that, since each of Decedent’s two wills purported to revoke all prior wills and the order in which they were executed could not be established, Decedent died intestate. Finding no error, we affirm the judgment of the probate court.

Ridgelake Apartments v. Harpeth Valley Utilities District of Davidson and Williamson Counties
M2003-02485-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

Harpeth Valley Utilities District of Davidson and Williamson Counties is a supplier of water and sewer services with charges for such services being based on gallonage of water measured by a water meter installed where the water main supply line joins the water line owned by the customer. Ridgelake Apartments is an apartment complex served by both a main residential water meter and an irrigation meter. Water supplied through the irrigation meter is not subject to sewer charges, but water supplied through the main residential meter is subject to such charges. Over a period of years, leaks developed in the water lines owned by Ridgelake on the Ridgelake side of the main residential water meter. Ridgelake sought reimbursement of sewer charges for water lost in these leaks on the basis that such water did not enter the sanitary sewer system. The trial court granted summary judgment to the Utility District, and we affirm the action of the trial court.

Earl E. Rivers v. Kathleen J. Rivers
W2004-02149-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Dewey C. Whitenton

This is an appeal from a final decree of divorce involving issues of alimony in futuro and an award of attorney fees. Husband appeals. We reverse in part, affirm in part, and remand.

Andrew J. Matthews, v. E. E. (Eddie) Matthews, et al.
M2003-01159-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Chancellor Robert E. Corlew, III

This is an appeal from a declaratory judgment action. Crossroads Market, LLC, a grocery, was owned by two brothers whose differences escalated to a point that necessitated an action to dissolve the LLC. The trial court granted the petition to dissolve the LLC and ordered the LLC be sold at auction to the highest bidder. Appellant, one of the brothers, was the successful bidder; however, a dispute arose immediately following the auction concerning the liabilities of the LLC. The Appellant insisted that a certain $300,000 promissory note was not a liability of the LLC while his brother, the Appellee, the holder of the note, insisted it was. The court, finding that the LLC had identified the promissory note as a liability on its financial reports and tax returns from the inception of the LLC, ruled that the note was a liability of the LLC when it was purchased at auction by the Appellant. Appellant appealed. We affirm.

Progeny Marketing v. Farmers & Merchants Bank
M2003-02011-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Donald P. Harris

This case involves a dispute regarding whether Tennessee courts have personal jurisdiction over a Georgia bank regarding a contract for business services provided by a Tennessee business. The trial court found no personal jurisdiction over the Georgia bank and dismissed Plaintiff's Complaint for lack of personal jurisdiction. We find that the Tennessee Long Arm Statute does give Tennessee courts personal jurisdiction over the Georgia bank; therefore, we reverse this case and remand it for further proceedings.

Lisa R. Altman v. Alan Altman
M2003-02707-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Carol A. Catalano

This appeal involves the division of marital property. Following almost fifteen years of marriage, both the husband and the wife sought a divorce in the Chancery Court for Montgomery County. The trial court, disregarding the marital dissolution agreement and quitclaim deed that the husband induced the wife to sign following their separation, awarded 58.5% of the marital estate to the husband and the remainder to the wife. The husband asserts on this appeal that the trial court erred by declining to follow the marital dissolution agreement and by overvaluing the marital property. We find that the trial court properly ignored the marital dissolution agreement and the quitclaim deed and that its valuation of the marital property is supported by the evidence. We have also determined that the manner in which the trial court divided the marital property was equitable.

Judy Dodson v. St. Thomas Hospital, et al.
M2004-01102-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Judge Barbara N. Haynes

Appellant, an at-will employee, was terminated from her position with St. Thomas Hospital because an investigation led Hospital employees to the conclusion that Appellant was involved in the harassing and stalking of another employee. Appellant sued Hospital and two employees for intentional infliction of emotional distress and negligent infliction of emotional distress stemming from her termination. Appellees moved for summary judgment, which was granted. We affirm.

In the Matter of: The Estate of Frances E. Milam, Deceased
W2003-03061-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Donn Southern

This appeal involves the construction of a holographic will. Following the decedent’s death, two documents in her own handwriting were found among her papers which the probate court admitted as her holographic will. The will contained devises of real and personal property to named
individuals and charities. At her death, however, the decedent owned property in excess of the devises made in her will. The executor filed three separate petitions to construe the decedent’s will.  The children of the decedent’s sister argued that the decedent died intestate as to the excess personal property and her personal residence, which the decedent did not specifically devise in her will. The probate court held that the decedent’s will contained a residuary clause, therefore, all of the decedent’s remaining assets passed through the residuary clause to the individuals and charities named in her will on a pro rata basis. In addition, the probate court held that the decedent died intestate as to her residence, which passed to her sister’s children by intestate succession. We affirm in part, reverse in part, and remand this case to the probate court for further proceedings consistent with this opinion.

William Edward Hargrove v. Merriellen Hargrove
W2004-00237-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Ron E. Harmon

This case is about post-divorce modification of child support. At the time of the parties’ divorce,
they adopted a permanent parenting plan which designated the father as the primary residential
parent of the parties’ son and the mother as the primary residential parent of the parties’ daughter.
Each had a child support obligation to the other, which was offset with the father paying the
difference to the mother. The daughter graduated from high school. As a result, the father’s child
support obligation to the mother was terminated, and the mother was ordered to pay increased child support to the father for their son. The trial court also ordered the mother to reimburse the father for the son’s health insurance premiums and to pay the father’s attorney’s fees. The mother appeals, arguing that her child support obligation could not be modified because the evidence did not indicate a significant variance in the mother’s income as required by Tennessee law. We affirm the ruling of the trial court as modified.
 

Patricia Lynn Finger v. James Gang Amusements
E2004-00593-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge William Dale Young

Plaintiff's action against defendant for the negligent hiring of the perpetrator of a crime against plaintiff was dismissed by the Trial Judge on a directed verdict at the end of plaintiff's proof. We affirm.

State of Tennessee, Department of Children's Services v., JCG, In the matter of BJG
E2004-02103-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge William B. Hawkins

In this parental termination case, the father, JCG appeals the termination of his parental rights to BJG.

In Re Adoption of John A. Kleshinski and Kevin Kleshinski, Chirlena Kleshinski and John E. Kleshinski, v. Julia Elizabeth Kleshinski
M2004-00986-COA-R3-CV
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Chancellor J. B. Cox

This is a termination of parental rights case. The mother and father were married, and two sons were born during the marriage. The father physically abused the mother during the marriage. In 1996, the parties divorced. Later in 1996, a consent order was entered giving the father custody of the children. The order did not require the mother to pay child support. Both parties remarried, and the mother moved to Alabama. The mother exercised visitation with the children until the early part of 1999. Around that time, the mother stopped visiting the children entirely. The father claimed that
he did not know why the mother stopped visiting, and the mother said that the father and his new wife threatened her with physical harm if she attempted to see her sons. About four and a half years after the mother’s last attempt to visit with the children, the father and his new wife filed this petition to terminate the mother’s parental rights and to permit the father’s new wife to adopt the children. The father and his new wife asserted that the mother had abandoned the children by willfully failing to support or visit them. The trial court terminated the mother’s parental rights but declined to permit the adoption at that time. The mother now appeals. We reverse the finding of the willful failure to support and affirm the finding of willful failure to visit. However, we vacate the
termination of parental rights on the basis that the trial court failed to make specific written findings regarding the best interest of the children, and remand for further proceedings on this issue. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Vacated and
Remanded.

Southland Mall, L.L.C., v. Valor Security Services, Inc.
W2003-03066-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge George H. Brown

This is a breach of contract case. The service contract between the plaintiff shopping mall and the
defendant security company provided that the security companywould “defend, indemnify, and hold harmless” the mall for claims brought against the mall that related to or resulted from the services of the security company. An automobile accident on the mall parking lot resulted in the death of a child. The child’s mother sued the shopping mall and the security company for wrongful death. The complaint alleged that the driver of the car was under the observation of a security company agent who “was or should have been in contact with the driver” when the accident occurred. The security company refused to defend the mall, maintaining that the lawsuit did not result from the services it provided. The trial court granted summary judgment to the security company, holding that the security company had no duty to defend the suit. We reverse, finding that the language in the complaint was sufficient to trigger the duty to defend.
 

Joyce Marie Brasher v. Donny Gene Brasher
W2004-01314-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Ron E. Harmon

This is a child support case. Father/Appellant seeks reversal of the amount of child support arrearage set by the trial court and relief from the trial court’s award of attorney’s fees and costs to Mother/Appellee. The trial court’s calculation of arrearage is based upon a trial exhibit that is not in keeping with the governing orders of support. Consequently, the calculation constitutes a retroactive modification of support, which is disallowed under T.C.A. § 36-5-101(a)(5). We reverse in part, affirm in part, and remand.

The Metropolitan Government of Nashville and Davidson County, in its own behalf and for the use and benefit of the State of Tennessee v. Delinquent Taxpayers as Shown on the 1999 Real Property Tax Records et al.
M2004-00040-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Carol L. McCoy

This appeal arises from an action brought by the metropolitan government to collect delinquent property taxes. The taxpayer owned 37.25 acres of property that were zoned commercial but were granted "greenbelt" status. In 1999, the taxpayer leased 1.21 acres of his property to a retail pharmacy, but he did not inform the assessor's office of the change in use of the 1.21 acre portion of his land. In 2000, after the assessor's office learned of the change in use through a review of a building permit summary, the assessor changed the classification on the entire 37.25 acre parcel from "greenbelt" to commercial. As a result, a "rollback" was issued causing taxes to be due on the entire 37.25 acre parcel at a commercial rate for the three previous years. The assessor mailed the taxpayer a 1999 tax bill showing the amount owed due to the rollback. Although the assessor informed the taxpayer that the matter could no longer be corrected through the assessor's office, the taxpayer did not file an administrative appeal or bring a lawsuit to dispute the error in classification and assessment. Following a hearing on the delinquent tax lawsuit, the trial court found that the assessor's office erred in removing the taxpayer's entire parcel from "greenbelt" classification and subjecting the entire parcel to a tax "rollback." The court found that only the 1.21 acre portion of the parcel used for construction of the pharmacy should have lost "greenbelt" status. Additionally, the court found that, because the parties stipulated that no change in use of the property had occurred since the underlying action was initiated, its findings were dispositive not only for tax years 1999 and 2000, but also through the date of the final order, November 26, 2003. The metropolitan government appealed arguing that the taxpayer was barred by statute from contesting the validity of the assessment once the delinquent tax lawsuit was filed. We reverse.

City of Morristown vs. Rebecca A. Long
E2004-01545-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor Ben K. Wexler

The appellant was discharged from her job by the City of Morristown based upon allegations that she participated in the use, possession, sale and distribution of marijuana in violation of the City's policy against illegal drugs in the workplace. She applied for unemployment benefits and her claim was denied. She appealed the denial of benefits and both the Appeals Tribunal and the Board of Review of the Employment Security Division of the Tennessee Department of Labor and Workforce Development ruled that she was eligible for unemployment benefits because the City failed to prove the alleged illegal drug activity. The trial court reversed the decision of the Board of Review. We hold that the trial court exceeded its authority under the applicable standard of review, and therefore, we reverse the judgment of the trial court and remand.