COURT OF APPEALS OPINIONS

Mickie R. McBee v. J. Lynn Nance
E2003-00136-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor William E. Lantrip

Mickie R. McBee ("Plaintiff") signed a Promissory Note evidencing an indebtedness to J. Lynn Nance ("Defendant") in the amount of $15,000. The Promissory Note ("Note") was secured by a Deed of Trust on Plaintiff's house. After Plaintiff failed to make any payments on the Note, Defendant foreclosed on the house. Plaintiff then filed this lawsuit challenging the adequacy of the consideration supporting the Note. At trial, Defendant testified to various cash loans he made to Plaintiff which he claimed constituted adequate consideration for the Note. Plaintiff claimed these were gifts, not loans. The Trial Court concluded the Note was supported by adequate consideration and dismissed the complaint. Plaintiff appeals. We affirm.

Michael Lamberson v. Kathy Lamberson
M2002-02773-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Muriel Robinson

In this appeal, the ex-husband challenges the trial court's order denying his post-divorce petition to modify alimony and finding him in "technical contempt." We find that the proof is inadequate to establish willful efforts to defeat alimony obligations, that his change of employment was not voluntary and that a substantial and material change of circumstances has occurred, justifying some relief from the alimony obligation. The trial court did not err in holding the ex-husband to be in contempt. We reverse the judgment in part, affirm the judgment in part, and remand the case for further proceedings.

Todd Jones, et al., v. Tennessee Farmers Mutual Insurance Company
M2003-00862-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Jim T. Hamilton

By pre-complaint Petition under Tennessee Rule of Civil Procedure 27, insureds seek to obtain from their insurer copies of previous unsworn oral statements given to an adjuster before they will submit to a statement under oath pursuant to their obligations under the policy. The trial court granted the Petition, and insurer appeals. The judgment of the trial court is reversed, and the case is remanded with instructions to dismiss the Petition.

Dennis Lee Beedle v. Stephanie J. Beedle
M2003-00755-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Samuel E. Benningfield, Jr.

In this divorce appeal the Husband challenges the distribution of the only significant marital asset, the Husband's retirement benefit. The trial court divided that benefit by ordering the Husband to pay $530.82 of each monthly payment to the Wife. We affirm.

Joseph Thompson v. Keith Wilson, Ted Como, Becky Campbell and Michelle Wilder
E2003-00885-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Presiding Judge John S. McLellan, III

Plaintiff's action for libel against defendants was dismissed on grounds the action was time-barred. We affirm.

B & S Enterprises v. William Rowland, Jr.,Individually, William Rowland, Sr., Individually, and William Rowland, Jr. and William Rowland, Sr. D/B/A/ USA Windows
E2003-00458-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Chancellor G. Richard Johnson

The Trial Judge refused to onerate an individual associated with defendant corporation with an obligation of the corporation which had been discharged in bankruptcy. On appeal, we affirm.

David T. Sears, et al., v. Charles Gregory, et al.
M2002-02771-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Barbara N. Haynes

Plaintiff homeowners sued Defendant pest control operators for negligent misrepresentation and breach of warranty relative to the issuance by the Defendants of a wood destroying insect infestation inspection report pursuant to Tennessee Code Annotated section 62-21-201 to 206. The trial court granted summary judgment to Defendants. Because civil liability is limited by section 62-21-202 and Plaintiffs allege no damages caused by the presence of wood-destroying insects, we affirm the judgment of the trial court.
 

David T.Sears, et al., v. Charles Gregory, et al. - Dissenting
M2002-02771-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Barbara N. Haynes

The narrow question presented by this appeal is whether Tennessee recognizes the tort of negligent misrepresentation by nondisclosure. While the Sears family’s complaint faces a daunting battle on other fronts, I would not extinguish it at this stage of the proceeding by holding as a matter of law that a professional person cannot supply the false information required by Restatement (Second) of Torts § 552 (1977) by silence.

 

Metropolitan Government of Nashville and Davidson County, Tennessee v. Basil Marceaux
M2003-00876-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Carol L. Soloman

Because the record confirms that the appellant did not perfect an appeal from an adverse decision of the general sessions court within ten days of that decision, we affirm the trial court's dismissal of the late attempted appeal.

Mary E. Madison, as Surviving Spouse of James R. Madison, Deceased, et al., v. State of Tennessee
E2003-01537-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Vance W. Cheek, Jr., Commissioner

These consolidated claims against the State of Tennessee ("State") arise out of an automobile accident which resulted in the death of James R. Madison and personal injury to Mary E. Madison, Kenneth R. Madison, and Wilma J. Madison (collectively referred to as "Claimants"). The State filed a motion for summary judgment which the Claims Commission ("Commission") granted based primarily on Claimants' failure to file a timely response. The Commission later set aside its order granting the State's summary judgment motion and ordered Claimants to file a response to that motion no later than March 19, 2003. Claimants filed their response to the motion for summary judgment on March 18, 2003. On May 14, 2003, apparently acting under the misapprehension that Claimants still had not responded to the motion for summary judgment, the Commission dismissed the claims based on Claimants' violation of its previous order directing them to respond. We vacate the dismissal of these claims and remand for further proceedings.

Diann Parnell v. Victor L. Ivy, Peter J. Dauster, Hardee, Martin, Jaynes & Ivy, P.A., C. Wesley Fowler and Glankler Brown, PLLC
W2003-00023-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Roy B. Morgan, Jr.

This is a legal malpractice case. The client filed suit in federal court against a municipality for the
death of her husband under the Governmental Tort Liability Act and U.S.C. § 1983. The federal
court dismissed the GTLA claim but retained the §1983 claims. The client dismissed her attorneys, hired new counsel and filed the GTLA claim in state court. The state court dismissed the GTLA claim because, while the GTLA claim was pending in federal court, the applicable statute of limitations expired. The client sued her original attorneys for malpractice. Shortly thereafter, the client settled the remaining § 1983 claims against the municipality. The defendant attorneys filed a motion for summary judgment in the malpractice case, arguing that the settlement with the municipality on the §1983 claims mandated dismissal of the legal malpractice claim. The trial court granted the summary judgment motion. The client appealed. We reverse, holding that the damages sought in the legal malpractice lawsuit are separate and distinct from the damages sought in the underlying lawsuit, and therefore settlement of the underlying lawsuit does not shield the former attorneys from liability.
 

Mary Lee Dotson v. William Ennis Dotson
M2002-02578-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Jim T. Hamilton

This appeal involves the dissolution of a 28-year marriage by default. The wife filed for divorce in the Chancery Court for Maury County and, after the husband failed to file a timely answer, filed for a default judgment. The trial court granted the default judgment even though the husband had filed an answer and counterclaim on the day before the hearing and later denied the husband's Tenn. R. Civ. P. 55.02 motion to set aside the default. The husband has appealed. We have determined that the trial court properly granted the default judgment but erred by refusing to later set the default judgment aside.

Alexander C. Wells, v. Tennessee Board of Regents, et al.
M2003-00591-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Carol L. McCoy

This appeal is the continuation of a protracted dispute between Tennessee State University and a faculty member stemming from his termination for sexually harassing a student. After the courts vacated the dismissal, the university and the Tennessee Board of Regents established a process of transitional reinstatement. The professor objected and refused to report to work. Thereafter, the professor filed a petition in the Chancery Court for Davdison County to hold the university and the board in contempt. The trial court heard the matter without a jury and declined to hold either the university or the board in contempt. The professor has appealed. We affirm because orders declining to grant contempt petitions are not appealable.

Janet Lynn Ditzer v. Curtis J. Ditzer
E2003-00707-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Judge W. Neil Thomas, III

The Trial Court ordered the father to pay one-half of the daughter's college expenses pursuant to the parties' Marital Dissolution Agreement, and reimburse the mother for one-half of expenses already paid. On appeal, we affirm.

Jerry McGeehee, et al., v. Michael W. Davis
M2002-03062-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert E. Lee Davies

This case is an appeal from a wrongful death claim in which the Defendant was found only fifty percent at fault. The Plaintiffs appeal to this Court for review of two procedural issues. For the following reasons, we affirm the trial court.

In Re S.M.
M2003-00422-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Betty Adams Green

This appeal involves the termination of the parental rights of a biological father whose daughter was surrendered to a licensed child-placing agency without his knowledge. Soon after notifying the biological father that it had custody of the child, the agency filed a petition in the Davidson County Juvenile Court seeking to terminate the father’s parental rights. Following a bench trial, the juvenile court concluded that the biological father had abandoned his daughter and that the child’s best interests required terminating her biological father’s parental rights. We have determined that the agency has failed to present clear and convincing evidence that the biological father has abandoned his daughter.
 

In Re S.M. - Concurring
M2003-00422-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Betty Adams Greene

I disagree with the standard of review employed by the court in this case for the reasons
discussed at more length in In Re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at
*18-22 (Tenn.Ct.App. June 3, 2003) (No Tenn. R. App. P. 11 application filed; Estate of Acuff v.
O’Linger, 56 S.W.3d 527, 533-37 (Tenn.Ct.App. 2001). However, I would reach the same result
employing the standard of review recited in Acuff v. O’Linger, 56 S.W.3d 527 at 537. Therefore,
I concur with the court’s decision to reverse the order terminating R.G.L.’s parental rights.

Peggy Pistole v. Stephanie D. Hayes, et al.
M2002-00470-COA-R3-CV
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Judge Carol L. Soloman

In this appeal from the Circuit Court for Davidson County the Plaintiff/Appellant, Peggy Pistole, argues that the trial court erred in excluding witness testimony upon grounds that their identity was not disclosed in Ms. Pistole's response to interrogatories. We reverse the judgment of the trial court and remand.

James L. West v. Frank Luna
M2002-02734-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Lee Russell

This appeal is the second in a 24 year long dispute over a proposed raceway in Lincoln County. After hearing additional proof as this Court required in West v. Luna, No. 01A01-9707-CH-00281, 1998 WL 467106 (Tenn.Ct.App.1998), the trial court entered a new injunction prohibiting the defendant Luna from operating a race track on Old Boonshill Road in Lincoln County. In this appeal, Mr. Luna challenges the trial court's injunction as noncompliant with our decision in the first appeal, and in imposing a noise limitation effectively making the race track a nuisance per se. We affirm the trial court.

Tennessee Industrial Machinery Company, Inc. v. Accuride Corporation
M2002-01844-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor James T. Hamilton

This appeal involves the lower court's award of a garnishment judgment against Accuride Corporation, as well as its subsequent denial of Accuride's Tenn. R. Civ. P. 59.04 motion to alter or amend the judgment. For the following reasons, we reverse the judgment of the lower court and remand for further proceedings.

Edward Silva v. Albert Buckley, Jr.
M2002-00045-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Russell Heldman

Alma Neiswinter v. Mark Murray
M2002-02345-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Timothy L. Easter
This appeal involves modification of child custody and child support, and contempt for failure to pay the support. When the mother and the father were divorced, the mother was designated as the primary residential parent. Three years later, custody was changed to the father. Subsequently, the mother filed a petition for change of custody and for modification of her child support obligation. The State later filed a petition on behalf of the father to hold the mother in criminal contempt for failure to pay child support. After a trial on both the mother's petition for change in custody and support and the State's petition for contempt, the trial court denied the mother's petition for custody, reduced the support retroactively because one child no longer lived with the father, and granted the State's petition, holding the mother in contempt. As punishment for the contempt, the trial court sentenced the mother to forty days in prison. From that order, the mother now appeals. We affirm the trial court's determinations regarding child custody and child support. We reverse the trial court's finding of criminal contempt, finding that the mother had in fact paid all of the required child support, based on the trial court's retroactive order reducing the child support obligation.

Ronald E. Brown v. Balaton Power, Inc.
M2001-02770-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Russell Heldman
This case involves the issue of whether parties contracted for arbitration to be the sole method of dispute resolution with regard to contract disputes. We find the intent of the parties unclear due to an irreconcilable conflict between two sections of the contract dealing with dispute resolution. We, thus, affirm the trial court's ruling that Plaintiff cannot be compelled to arbitrate.

Edward Silva v. Albert Buckley, Jr.
M2002-00045-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Russell Heldman

Irby C. Simpkins v. Peaches G. Blank
M2002-02383-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Walter C. Kurtz
This case involves an appeal from a grant of summary judgment equitably dividing a tax refund of the parties and refusing to reopen the parties' marital dissolution agreement. In addition, appellant contends the trial court erred by awarding attorney's fees to appellee for issues relating to child support litigated below. For the following reasons, this Court affirms the decision of the trial court.