COURT OF APPEALS OPINIONS

Jeff Willard v. Golden Gallon-TN, L.L.C.
E2003-02628-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Samuel H. Payne

This is a retaliatory discharge case wherein the plaintiff/employee alleged that his employment was terminated, inter alia, in violation of the Family and Medical Leave Act and because he obeyed a lawful subpoena. The trial court granted the employer's motion for summary judgment. The employee appealed. We vacate the trial court's grant of summary judgment because we have determined that (1) a claim for retaliatory discharge in violation of Tennessee public policy lies in cases where a substantial factor in an employer's decision to terminate an employee is the fact that the employee honored a lawful subpoena, (2) a genuine issue of material fact exists as to whether the employee was terminated for honoring a lawful subpoena, and (3) a genuine issue of material fact exists as to whether the employee was terminated in violation of the Family Medical and Leave Act. Accordingly, we vacate the judgment of the trial court and remand for further proceedings consistent with this opinion.

J.E.B. v. J.C.W.
E2003-02782-COA-R3-JV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge William Terry Denton

This is a child custody case. After a trial, the trial court designated the Father as primary residential custodian of the parties’ child. Mother appeals, arguing that the trial court should have awarded her primary residential custody. We find that the evidence does not preponderate against the trial court’s finding that the child’s best interests are served by awarding Father primary residential custody. Consequently, we affirm the judgment of the trial court.
 

Tommy Davis Craig v. David Robert Dison
M2003-00419-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Allen W. Wallace

This appeal involves an unsuccessful plaintiff who seeks review of a jury verdict. Plaintiff argues that the trial judge failed to perform his function as a thirteenth juror. We agree and reverse and remand for a new trial.

Jon E. Shell v. D. Scott King
E2003-02124-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

Jon and Rebecca Shell ("Plaintiffs") sued D. Scott King ("King") after a limited liability company formed by the three of them went out of business. Plaintiffs sought dissolution of the company known as The Big Red Barn, LLC ("the Company" or "the LLC"). Plaintiffs also claimed King had breached his fiduciary obligations to both them and the LLC. The trial court referred this case to a Special Master and after a trial, the Special Master issued a report concluding King was negligent and had breached his fiduciary obligations and recommending that plaintiffs be awarded a judgment which included some, but not all, of plaintiffs' attorney fees and expert witness fees. The trial court confirmed the report of the Special Master in all respects. We modify the judgment of the trial court and affirm as modified.

Gwinn Fayne, et al. v. Teresa Vincent, et al.
E2003-01966-COA-R3-CV
Authoring Judge: Senior Judge H. David Cate
Trial Court Judge: Chancellor Jerri S. Bryant

Purchasers of real property sued sellers and real estate company seeking rescission for tortious misrepresentation and violation of the Tennessee Consumer Protection Act. The trial court rescinded the transaction and dismissed the real estate company on the basis that the salesperson was an independent contractor. Purchasers appealed asserting: (1) the salesperson was an agent rather than independent contractor; (2) the trial court did not place the purchasers in the position in which they would have been since the transaction was rescinded; and (3) the purchasers should have been awarded their attorney's fees. We agree with the trial court that the salesperson was an independent contractor, but modify and remand for further proceeding (1) relative to placing the parties in the position in which they would have been had there been no transaction and (2) concerning the allowance of purchasers' attorney's fees.

Susan Green v. Leon Moore, et al
M2003-01015-COA-RM-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge R.E. Lee Davies

This appeal pertains to an alleged breach of a settlement agreement arising from a prior dispute between the parties. The plaintiff brought this action to recover damages resulting from an insulting remark allegedly made by an executive of her former employer in violation of a prior settlement agreement that contained a non-disparagement provision. As a result of the alleged breach, the plaintiff claims she was not permitted to serve as Director of Sales for twenty-seven motels, for which she would have received additional compensation, and was precluded from advancing with her new employer. The trial court dismissed plaintiff's claims on summary judgment. Plaintiff appealed. We affirm.

Keith Allen, et al., v. State of Tennessee
M2003-00905-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: William Baker, Commissioner

The Claims Commission awarded damages to Plaintiffs individually and as administrators of the Estate of their son, Robert Keith Allen. The state was held liable under Tennessee Code Annotated section 9-8-307(a)(1)(I) and (J). We affirm the judgment of the Claims Commission.

John R. Albamont v. Town of Pegram, Tennessee
M2003-01624-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge George C. Sexton

Owner of commercial property in Pegram, Tennessee, filed suit against the Town of Pegram challenging the validity of Pegram's sewer tap privilege fee, asserting that the fee bears no reasonable relationship to the demand placed on the sewer system and therefore is capricious, arbitrary and unreasonable. The trial court granted summary judgment for the Town of Pegram and dismissed the action. We find there are material facts in dispute and therefore reverse the decision of the trial court granting summary judgment.

Robert L. Eubanks, Jr., et al., v. Procraft, Inc. et al.
E2003-02602-COA-R9-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Judge Dale C. Workman

An applied liquid siding damaged the Plaintiffs’ house. By amended complaint the Plaintiffs joined the purported manufacturer, a Canadian corporation, pursuant to the Hague Convention. Held, not subject to jurisdiction in Tennessee. Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed

Bruce McGehee, M.D. v. Otis A. Plunk, M.D.
W2003-01332-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Arnold B. Goldin

A judgment was rendered against corporation, of which Defendant is 100% owner. Plaintiff sought to recover judgment from Defendant’s corporation but was unsuccessful. Plaintiff filed suit against Defendant alleging that conveyance made between corporation and Defendant was fraudulent. The trial court found the conveyance fraudulent and assessed the judgment against the Defendant, personally. For the following reasons, we affirm.

Frederick Todd Smith, et al., v. Jim Crossman, et al.
M2003-01108-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Carol L. Soloman

This appeal involves the interpretation of the attorney's fee provision in a lease agreement. The trial court awarded Landlord attorney's fees, and Tenants appeal. We reverse the award of attorney's fees, finding no contractual basis exists for the award.

Norman Hamby v. State of Tennessee
W2003-02947-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Nancy C. Miller-Herron, Commissioner

Plaintiff filed suit against Defendant seeking damages for injuries caused by a fall that occurred on Defendant’s premises. The Tennessee Claims Commission ruled in favor of Defendant. Plaintiff appealed to this Court. This Court reversed the commission’s decision and remanded for a determination of comparative fault. Upon remand, the commission ruled that Defendant had breached its duty but found that Plaintiff was at least 50% at fault for his injuries, thereby barring Plaintiff’s recovery. In the absence of a transcript to support Plaintiff’s position, we must affirm the commission’s ruling.

State of Tennessee, ex rel., Reba Alexander v. Michael, Williams/State of Tennessee, ex rel., Michael Springfield v. Rita Alexander, Shelby
W2003-01485-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge J. Roland Reid

This is a consolidated appeal of two lawsuits in which the trial court refused to enforce or modify child support orders administratively issued under Tennessee Code Annotated 36-5-103(f). The trial court dismissed the State’s petitions in both actions. We vacate the orders of dismissal and remand for proceedings on the merits.

Marion P. Gurkin, III v. Roy Wood, Individually, Associates General Insurance, Inc. Tennessee Insurance Company, Permanent General Assurance Corp, Permanent General Co, and INgram Industries Insurance Gp.
W2003-00793-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge D'Army Bailey

This case involves an automobile insurance claim. The insured’s family owned a chain of
convenience stores. The insured applied for a personal automobile insurance policy. The insurance agent completed the application, indicating that the vehicle was for personal use, and the insured approved it. Later, the insured suffered personal injuries from a traffic accident and submitted a claim to the insurance company. The insurance company asserted that the vehicle was owned by the family convenience store chain and was used for business purposes. On this basis, the insurance company refused to pay the claim and rescinded coverage, alleging there were material misrepresentations in the insured’s application. The insured filed this lawsuit against the insurance company and its agent, and the insurance company filed a cross-claim against the agent. After a bench trial, the trial court found that the vehicle was not owned by the family business and was not used for business purposes, and that consequently there was insurance coverage and the agent was not liable. The insurance company appeals. We affirm, finding that the evidence supports the trial court’s findings that the insured owned the vehicle individually, that the insured did not use the vehicle for business purposes, and that the agent was not negligent.
 

Edgar Foster, Individually and on Behalf of Wife, and Stanley Turner, v. St. Joseph Hospital, Mahir R. Awdeh, M.D., Raj. C. Dave, M.D.
W2003-00522-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge James F. Russell

This is a wrongful death case. The decedent was survived by her husband and two brothers. The husband gave his power of attorney to his grand-nephew. The grand-nephew filed a wrongful death lawsuit, alleging medical malpractice which resulted in the decedent’s death. The grand nephew voluntarily dismissed the claim. The grand-nephew refiled the action within one year of the nonsuit but beyond the expiration of the original statute of limitations. In the second action, the decedent’s husband was added as a plaintiff. The defendants filed motions for summary judgment, arguing that the second lawsuit was time barred. The trial court granted the motion, holding that because the grand-nephew was not a proper party plaintiff under the Tennessee wrongful death statute, the first lawsuit was a nullity and did not toll the statute of limitations. We reverse, holding that the original lawsuit was not void, but merely voidable, and that the second lawsuit was timely filed under the savings statute.
 

Marlin Financial & Leasing v. Nationwide Mutual Insurance Company
E2003-01045-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Howell N. Peoples

This is a declaratory judgment action filed by Marlin Financial & Leasing Corporation ("Marlin") against its insurer, Nationwide Mutual Insurance Company ("Nationwide"), seeking a determination as to coverage under Marlin's insurance policy with Nationwide. Specifically, the suit seeks to obligate Nationwide to pay $8,333.33, the amount of Marlin's settlement of a claim asserted by AmSouth Bank ("AmSouth" or "the Bank"), and associated attorney's fees and expenses of $52,654.05. The trial court granted summary judgment to Marlin, finding that AmSouth's claim against Marlin for "loss of use" of certain property was covered under the business liability feature of the policy and that Marlin was entitled to reimbursement for the amount of its settlement of AmSouth's claim and Marlin's related litigation expenses. The trial court ultimately awarded Marlin prejudgment interest, but it refused to assess a bad faith penalty against Nationwide. Nationwide appeals and both sides raise issues. We affirm.

Todd Hillman Rice v. Michelle E. Rice
E2003-01336-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Richard R. Vance

The Trial Court convicted respondent on "six counts" of contempt. On appeal, we hold evidence supports only one count of contempt.

Robert Ledford v. George Raudenbush
E2004-00170-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge John B. Hagler, Jr.

The defendant appeals from the Trial Court's awarding Judgment to plaintiff for $1,000.00. The record on appeal is insufficient to review alleged error. We affirm.

State of Tennessee, Department of Children's Services v. CBH, in re: SB
E2003-03000-COA-R3-PT
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge John B. Hagler, Jr.

The Trial Court terminated the mother's parental rights after finding statutory grounds to terminate and clear and convincing evidence that it was in the child's best interest that the parent's rights be terminated. On appeal, we affirm.

Vanderbilt Mortgage & Finance v. Joseph Rotello, et al.
E2003-01963-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Rex Henry Ogle

Joseph and Nina Rotello ("Defendants") purchased a mobile home from Clayton Sevierville and financed the purchase through Vanderbilt Mortgage & Finance, Inc. ("Plaintiff"). After Defendants defaulted on the installment contract, Plaintiff filed suit and then filed a properly supported motion for summary judgment seeking possession of the mobile home. Defendants, who were proceeding pro se, filed a response to the motion for summary judgment, but failed to offer any competent proof to establish a genuine issue of material fact for trial. The Trial Court granted Plaintiff's motion for summary judgment, and we affirm.

In re: Nancy Jane Shipe, Daniel P. McClure, (Conservator of Estate), v. Fae N. Shipe, (Conservator of the Person), and Nancy Jane Shipe (Ward)
E2003-01647-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor Thomas R. Frierson, II

Competing Petitions between The Conservator of the Estate and the Conservator of the Person resulted in the Trial Court altering the Ward's living arrangements. On appeal, we affirm.

Sullivan County, Tennessee and the Sullivan County Building Commissioner v. Joe Ellis Lyon
E2003-01107-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge John S. McLellan, III

Appellant, pro se, employed counsel during appeal, but appeal is premature. We dismiss appeal and remand.

Alvin Freeman, et al. v. Janice K. Stewart, et al.
E2003-02285-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge John S. McLellan, III

Janice K. Stewart ("Mrs. Stewart") was the record owner of a parcel of real property located in Tall Oaks Court subdivision when this litigation began. Several of Mrs. Stewart's neighbors filed this suit claiming Mrs. Stewart was in violation of the subdivision restrictions by having a freestanding metal garage and a separate large wooden structure on her property. The Trial Court agreed and gave Mrs. Stewart the option of keeping one of the structures as a garage and ordering her to remove the other structure. Mrs. Stewart subsequently transferred the property to her husband, Ed Stewart ("Mr. Stewart"), who then was added as a defendant. The neighbors filed a petition for contempt against both Mr. and Mrs Stewart when they continued to have both a freestanding metal garage and the wooden structure on their property. A hearing was held on the petition for contempt and the Trial Court held Mrs. Stewart in contempt and found the wooden structure still to be in violation of the subdivision restrictions. We affirm the Trial Court's finding that the wooden structure is in violation of the subdivision restrictions. We vacate the finding of contempt and remand for further proceedings on the claim of contempt as to Mrs. Stewart.

Mary Jean Upright v. Richard Upright
W2003-01834-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Bob G. Gray

Husband appeals trial court’s final decree of divorce pertaining to division of marital
property. We affirm.

V.D., et al v. N.M.B.
M2003-00186-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Marietta M. Shipley

The paternal grandmother of an eight year old boy, who had had custody of the child for the most recent four years of his life, filed a petition to terminate the parental rights of his mother so the grandmother could adopt him. The trial court granted the petition, finding clear and convincing evidence of several grounds for termination and that such a step was in the child's best interest. We affirm the termination on the ground of abandonment.