COURT OF APPEALS OPINIONS

Cecil Jacobs v. Edwin Underhill
M2002-02866-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Timothy L. Easter
The appellants challenge the trial court's Order commanding them to remove a portion of their patio and garage and any portion of their residence constructed since 1999 which encroaches on the appellees' property. We affirm.

Morristown Surgery v. Tennessee Health Facilities Commission
M2002-02872-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Ellen Hobbs Lyle
This appeal under the Administrative Procedures Act challenges a chancery court order affirming the dismissal of the Appellant's Petition for Contested Case Review. We affirm.

In the Matter of: D.L.(P.)C.,et al
M2003-00088-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Muriel Robinson
Mother appeals the trial court's award of custody of her four minor children to the Tennessee Department of Children's Services based on a finding of dependency and neglect. We affirm.

Bridgecourt Apartments vs. Carmen Ellerbe
E2003-01298-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Daryl R. Fansler
Plaintiff paid off mortgage on apartments and then sued for an accounting, alleging overpayment. The Trial Court invoked the voluntary payment rule and dismissed the case. On appeal, we affirm.

Dept.of Child.Services vs. G.C.
E2003-01532-COA-R3-CV
Trial Court Judge: Suzanne Bailey
The trial court terminated the parental rights of G.C. ("Mother") with respect to her minor children, I.A.J.C. (DOB: April 3, 1999), M.L.K.L.II (DOB: July 31, 2000), and J.E.L. (DOB: July 22, 2002). Mother appeals, arguing that the evidence preponderates against the trial court's finding, by clear and convincing evidence, that statutory grounds exist for termination. We affirm.

Walter E. Grantham, IIl vs. Robert Larry McGill
E2003-02005-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Howell N. Peoples
Mary Frances McGill sued Robert Larry McGill ("Defendant") seeking return of personal property and claiming fraudulent execution of a deed to real property. Ms. McGill died and Walter E. Grantham, II, Administrator C.T.A. of the Estate of Mary Frances McGill ("Plaintiff") was substituted as plaintiff in this case. The case was tried and the Trial Court entered a final decree dismissing the complaint. Plaintiff appeals. The record contains neither a transcript nor a statement of the evidence. We affirm.

Kennedy Woods v. Nashville and Davidson County
M2001-03143-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Irvin H. Kilcrease, Jr.
This case involves an Administrative Procedures Act appeal from the chancery court's determination of Appellant's Petition for Judicial Review. The petition sought review of the Civil Service Commission's final order affirming Appellant's termination for violation of the Metro Nashville Fire Department's Zero-Tolerance Policy on Substance Abuse. We affirm the order of the trial court.

Kevin Demers v. Karen Demers
M2002-01970-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Ross H. Hicks
This involves a post-divorce petition to reduce child support. The mother and father were divorced in 1998, and the mother was awarded custody of the parties' three children. The father was ordered to pay child support plus private school tuition, based on substantial annual earnings from self-employment. In December 2000, the father filed a petition to have his child support payments reduced based on a decline in his business. The father later liquidated the assets of his business and quit work. He subsequently amended his petition, asserting that he had earned no income since the liquidation of his business. After a bench trial, the trial court rejected the father's petition for a reduction in child support, finding that the father was willfully underemployed. The father now appeals. We affirm, finding that the evidence does not preponderate against the trial court's determination that the father was willfully underemployed.

Lorraine Miller v. Bruce Miller
M2002-02731-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: R.E. Lee Davies
The trial court awarded a divorce to a sixty-four year old woman with multiple health problems, and ordered her former husband to pay her $700 per month as alimony in futuro. The husband argues on appeal that the trial court erred, because the wife was capable of working, and was therefore only entitled to rehabilitative alimony. We affirm the trial court.

William J. Reinhart v. Robert T. Knight, et al. - Dissenting
M2001-02195-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge James L. Weatherford

I respectfully dissent from the majority’s decision to reinstate the jury verdict. I would
reverse the judgment below and remand for a new trial on all issues.

American Excavators, LLC., v. RCR Building Corporation, et al.
M2002-01757-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor R.E. Lee Davies

American Excavators, LLC ("Plaintiff") entered into a subcontract agreement with RCR Building Corporation ("Defendant") which required Plaintiff to perform excavation and utilities work for the Williamson County community services building. The subcontract agreement provided for certain excavation work to be done for a lump sum and states that "[a]ny additional undercutting and refilling of areas due to unsuitable soils will be done for a unit price of $12.50 per cubic yard." Plaintiff claims that while performing the work, it encountered a large amount of unsuitable soil that it removed and replaced. Plaintiff later submitted change orders to Defendant requesting to be paid for the removal of the alleged unsuitable soil. Defendant paid a portion of the change orders, but refused to pay the entire amount. Plaintiff sued for breach of contract. After a bench trial, the Trial Court dismissed Plaintiff's claims against Defendant. Plaintiff appeals. We affirm.

William J. Reinhart and Judith F. Reinhart, v. Robert T. Knight, Glenda Knight, Bob Parks, and John E. Harney, III
M2001-02195-COA-R3-CV
Authoring Judge: Special Judge Thomas W. Brothers

This appeal involves claims of breach of contract for sale of real estate and procurement of breach of contract. After a jury trial, the defendants Robert and Glenda Knight were found to have breached the real estate sales contract with the plaintiffs and plaintiffs were awarded $185,476.48. The jury also found that the defendants Bob Parks and John Harney procured the breach of contract by the Knight defendants and awarded plaintiffs $556,429.44. The trial judge remitted the damage award against the Knights to $0.00.

In Re: Bridgestone/Firestone & Ford Motor Company Tire Litigation
M2002-02204-COA-R10-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Thomas W. Brothers

This extraordinary appeal arises from the lower court's denial of Appellants' motion to dismiss under the doctrine forum non conveniens. The case is comprised of thirty-one lawsuits, based on automobile accidents in Mexico involving Ford and Firestone products, that are consolidated in Davidson County, Tennessee for pretrial purposes. Using the approach set forth by the Tennessee Supreme Court in Zurick v. Inman, the trial court found that dismissal of the case was not necessary. For the following reasons, we reverse the ruling of the lower court.

C & G Seeds, Inc. v. Sammy Taylor
M2002-01572-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Clara W. Byrd

A farming supply store brought suit against an account holder for money due on an unpaid account. The trial court found that the store failed to prove any monies were owed. The farming store appeals, arguing that the evidence preponderates against the trial court's decision. We affirm the decision of the trial court.

Carrie Denning Nolley v. Paul Eichel, Pat Patton and Eight Tracks Management Co., LLC
M2006-00879-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Barbara N. Haynes
Bar patron filed a negligence action against bar owners for injuries sustained when she slipped and cut her hand on a broken beer bottle. Defendants filed a motion for summary judgment which the trial court granted finding that Plaintiff failed to establish that Defendants had actual or constructive notice of the dangerous condition. We affirm the judgment of the trial court.

Brick Church Transmission, Inc. v. Southern Pilot Insurance Co.
M2002-02778-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Carol L. Mccoy

Insured, Plaintiff/Appellant, filed suit under a policy of commercial insurance alleging a loss by theft that was covered by the policy. Defendant/Appellee filed a Tennessee Rule of Civil Procedure 12.02(6) Motion to Dismiss based upon expiration of the two year period in which suit could be brought under the terms of the policy. The trial court granted the motion to dismiss, and we affirm the action of the chancellor.

Dudley Stovall v. William Thomas Bagsby
M2002-01901-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Russell Heldman
This twice-tried boundary line litigation, spanning five years, involves a small square-footage of a long-existing private roadway, five surveyors-engineers, and a host of lay witnesses. The Chancellor adopted the expert opinion of one of the surveyors with respect to the precise location of a crucial corner of the roadway. We affirm except as modified with respect to discretionary costs, which requires a remand for determination.

Admiralty Suites And Inns, LLC, et al. v. Shelby County, Tennessee et al.
W2002-02155-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor D. J. Alissandratos

This case involves the constitutionality of Tenn. Code Ann. § 67-4-1425, which governs occupancy taxes on hotels and motels. After conducting a hearing on the matter, the lower court found the statute constitutional. For the following reasons, we affirm in part and reverse in part the finding of the trial court.

Antuan J. Foxx v. James Neely, et al
M2003-01634-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Irvin H. Kilcrease, Jr.
This is an appeal by a former employee whose unemployment compensation benefits were denied on the basis of work-related misconduct, specifically for allegedly refusing to perform certain work as requested by a supervisor. The claim for benefits was denied by the Employment Security Division of the Tennessee Department of Labor and Workforce Development. The employee filed a petition with the Chancery Court for judicial review. The Chancery Court affirmed. The employee asserts that the denial of his claim is not supported by substantial and material evidence. We find there is substantial and material evidence to support the denial of benefits and affirm the trial court.

Melinda Anderson vs. Brett Wilder
E2003-00460-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Harold Wimberly
This case involves a dispute between members of a limited liability company ("LLC") entitled FuturePoint Administrative Services, LLC. The Plaintiffs were expelled from the LLC by a vote of the Defendants, who together owned 53% of FuturePoint. The Plaintiffs received a buyout price of $150.00 per ownership unit in FuturePoint after they were expelled, pursuant to the operating agreement of the LLC. Shortly after the expulsion, the Defendants sold 499 ownership units, amounting to a 49.9% interest in the LLC, to a third party at a price of $250.00 per ownership unit. Plaintiffs filed this action, alleging, among other things, that the Defendants' actions violated their fiduciary duty and duty of good faith to Plaintiffs. Defendants moved for summary judgment, arguing that their actions were authorized by the operating agreement and that they acted in good faith in expelling the Plaintiffs. The Trial Court granted summary judgment in Defendants' favor. We vacate the order of summary judgment and remand.

Carl Evans vs. Clarence Douglas
E2002-02191-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Howell N. Peoples
This is a suit by Carl Evans and his wife Sharon Evans against Clarence Douglas, Heritage Realty, Care Free Home Center, Inc., and Rick McManus. The suit sought damages because a lot they supposed they were buying from Mr. Douglas was not the lot they owned, but one adjacent thereto. Heritage Realty was sued as the employer of Mr. Douglas and Care Free Home Center, Inc., as the seller of a modular home which was placed on the wrong lot, and putting the Evanses in touch with Mr. Douglas. Rick McManus was the owner of the lot upon which the modular home was placed, although no relief was sought against him. Mr. McManus, however, did file a counter-complaint seeking rents from the Evanses for their use of his lot. The Trial Court awarded a judgment to the Evanses against Mr. Douglas only, under the Tennessee Consumer Protection Act, and a judgment in favor of Mr. McManus against the Evanses for rental value of the property, as well as discretionary costs. We affirm as modified.

Cynthia Cooper vs. James Cooper
W2002-00595-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: W. Michael Maloan
Petitioner sought an order from the trial court to require his former wife to turn over to him property awarded in the divorce action. Following a hearing, the trial court ruled that the Petitioner had not sustained his burden of proof and that Petitioner's former wife did not have in her possession any personal property granted to Petitioner in the divorce decree. The record is before this Court on Petitioner's appeal and absent a transcript or statement of the evidence. We affirm.

State of Tennessee, ex.rel. Vikki Davis vs. John Davis
W2001-02565-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: George R. Ellis
This case involves a judge's sua sponte decision not to enforce a Tennessee statute. The parties divorced in 1997, and the mother was awarded custody of the parties' minor daughter. The father was required to pay child support. The father failed to pay, and the State filed a petition for contempt on the mother's behalf. The father was found in contempt for his failure to pay. Sua sponte, the trial judge refused to enforce the Tennessee statute requiring the payment of a child support processing fee, citing a perceived violation of an unspecified federal law. The State appeals. We reverse, finding that the trial judge erred in refusing to apply the statute.

Debbie Legens v. Darin Marshall D/B/A Marshall Recovery
W2003-00005-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: William B. Acree

Terry Baker Smithson v. James Alvin Smithson, Jr.
W2003-00204-COA-R3-CV
Authoring Judge: Judge David R. Farmer