COURT OF APPEALS OPINIONS

E2002-01158-COA-R3-CV
E2002-01158-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jacqueline E. Schulten

Heather Carey v. Margaret R. Johnson
M2002-00911-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Thomas W. Graham
An employee of a utility company went to the private residence of a customer to re-connect service which had been disconnected for non-payment where she was violently attacked by the customer who hit her in the jaw with a flashlight, beat her with car keys and threatened to kill her by throwing her off of the mountain and, thereafter, show her dead carcass to her children. The utility employee sued the customer for personal injuries, infliction of emotional distress and punitive damages. The trial court granted judgment by default as to liability against the defendant for the defendant's repeated failure to attend her discovery deposition. The trial on damages was conducted without a jury. The trial court awarded compensatory damages and punitive damages. We affirm.

Jennifer Burnett vs. Christopher Burnett
E2002-01614-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Bill Swann
Jennifer Chante Burnett ("Mother") filed a Complaint for Absolute Divorce seeking a divorce from Christopher John Burnett ("Father") and requesting to be designated as the primary residential parent of the parties' minor daughter. Father filed an answer and counterclaim wherein he also sought a divorce and to be the primary residential parent. After a trial, the Trial Court determined it was in the best interests of the minor child for Father to be the primary residential parent, and entered judgment accordingly. Mother appeals, claiming the Trial Court failed to consider all relevant factors when making its custody determination and that the Trial Court's conclusion with regard to custody was intended to punish Mother and reward Father. We affirm the judgment of the Trial Court.

David Hill vs. Herbert Moncier
E2003-00075-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Dale C. Workman
David T. Hill sued Herbert S. Moncier and David S. Wigler ("the Attorneys"), both of whom are attorneys engaged in the practice of law in Knoxville, alleging legal malpractice. According to Hill, the Attorneys represented him in federal court in connection with "criminal charges and criminal and civil forfeitures." He was convicted of conspiracy, conducting an illegal gambling operation, and money laundering, fined $25,000, and received concurrent sentences of 57 months. Forfeiture of property was ordered by the district court. In the instant case, Hill seeks to recover damages allegedly caused by the Attorneys' malpractice. The Attorneys moved for dismissal on two grounds, i.e., (1) the failure of Hill to obtain post-conviction relief, and (2) the bar of the statute of limitations. The trial court dismissed the complaint without reciting its basis for doing so. Hill appeals. We affirm in part and reverse in part.

In the Matter of: H.E.J and H.E.J
M2002-00539-COA-R3-JV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Alfred L. Nations
The trial court terminated the parental rights of a father of twins on multiple grounds, including abandonment and the commission of severe child abuse against the twin's mother while she was a minor child residing in his home. The court also ordered him to pay $14,400 in child support arrearages. We affirm the termination, but we reverse the child support award.

Jerry Lee Harbin vs. Chris Marie Harbin
E2002-01456-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Neil Thomas, III
Chris Marie Harbin appeals a judgment entered by the Circuit Court for Hamilton County which decreed that the parties were divorced, awarded custody of their three minor children to their father, Jerry Lee Harbin, affirmed a visitation plan proposed by Mr. Harbin, which she signed, and ordered Mr. Harbin to pay token alimony ($1.00 per month) to her. She appeals the judgment of the Court. We affirm.

Karen Chelton v. Provident Companies, Inc.,
E2002-2282-COA-R3-CV
Trial Court Judge: W. Frank Brown, III

Cathy Cooke v. Randy Cooke
M2001-03026-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Vernon Neal
Wife sought divorce from Husband on the grounds of irreconcilable differences and inappropriate marital conduct. Husband sought divorce from Wife on identical grounds. After declaring the parties divorced, the trial court awarded Wife 42% of the marital estate and awarded Husband 58% of the marital estate. The trial court also awarded alimony in solido to Wife in the amount of $30,000. Husband appeals both the valuation of the marital estate and the award of alimony to Wife. Because we find that the evidence does not preponderate against the trial court's valuation of the marital estate, and the trial court did not abuse its discretion in awarding alimony to Wife, we affirm the decision of the trial court.

David Mayberry v. Janilyn Mayberry
M2002-00424-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Don R. Ash
This appeal involves a petition to modify a parenting plan. The trial court found there to be a material and substantial change in circumstances and that it was in the best interest of the minor children that Mother be designated the primary residential custodian with full decision making authority. Father was awarded more than standard visitation. Father appeals and raises one issue on appeal. For the following reasons, we affirm.

Brenda Adams vs. Steven Oliveira
E2002-00515-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: William R. Brewer
Steven A. Oliveira appeals an order of protection entered on December 18, 2001, by the General Sessions Court for Blount County in favor of Brenda L. Adams, Mr. Oliveira's sister. An ex parte order had issued on November 26, 2001, and was served on December 6, 2001. The hearing was held on December 17. We dismiss the appeal because we find it was not timely filed.

John Tallardy v. William Jones
M2002-00447-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Carol A. Catalano
Homeowner hired a contractor to make improvements to his residence. Disputes occurred during and following construction. The contract contained an arbitration provision. The parties agreed to arbitration, following which the arbitrator awarded damages against the contractor in the amount of $76,465. Contractor refused to pay the award. Accordingly, the homeowner filed this civil action to enforce the arbitration award. Following a hearing before the Chancellor, of which there is no record for this court to review, the Chancellor refused to confirm the arbitration award. We affirm.

In the Matter of TBS.& AKS.; Dept of Children's Srvc v. Nancy Shortt
M2002-02920-COA-R3-JV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Jimmy White
This case concerns the question of what constitutes reasonable efforts to reunify dependent and neglected children with the birth parents prior to the termination of parental rights. The trial court held that reasonable efforts were made. This Court affirms the termination as to both parents' rights.

Donita Piper v. Curtis Mize
M2002-00626-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: John H. Gasaway, III
Plaintiffs in this case are citizens of Montgomery County. Defendants, Paul Avallone, Wayne Gill, Curtis Mize and Yvonne Van Der Touw are also citizens of Montgomery County who, in varying degrees, were alleged to be involved in the printing and distribution of a newspaper known as The Rattler. Defendant Avallone was the sole writer, publisher and editor of each issue of The Rattler. Defendant Mize is a businessman who allowed copies of the October 5, 2000 edition of The Rattler to be placed on the counter at his place of business for free distribution. The trial court granted summary judgment in favor of Defendant Mize and finalized the judgment as to Mize under Tennessee Rules of Civil Procedure 54.02. Plaintiffs appeal, and we affirm the judgment of the trial court.

Triple Rock v. A.C. Rainey
M2000-01115-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Ellen Hobbs Lyle
Triple Rock LLC, d/b/a Commercial Ten, Perry Dale, and Earl H. Young, Jr., sued A.C. Rainey and others for damages allegedly resulting from the Defendants' misappropriation, conversion, or negligent handling of moneys allegedly owed to the limited liability company. The trial court granted partial summary judgment in favor of Defendant, Attorney Mark Moore, on his Motion to Dismiss for failure to state a claim. Then, upon Plaintiffs' Motion for Summary Judgment and the response of the remaining Defendants thereto, the trial court entered summary judgment in favor of the Defendants, A.C. Rainey, Miller Kimbrough, MGK Realty, and Mary Snyder. From these two orders Plaintiffs appeal. We affirm.

Thomas & Associates, Inc., v. The Metropolitan Government of Nashville and Davidson County, et al.
M2001-00757-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge Thomas W. Brothers

This appeal involves a dispute between a road contractor and the Tennessee Department of Transportation involving two construction projects in the Nashville area. Following extensive construction delays attributed to the relocation of utilities, the contractor filed claims based on negligence and breach of contract with the Tennessee Division of Claims Administration which were transferred to the Circuit Court for Davidson County. The trial court granted the Department's motion for summary judgment and dismissed all the contractor's claims. We have determined that the trial court correctly dismissed the contractor's negligence claims but that the trial court erred by denying the contractor's breach of contract claims. Accordingly, we vacate the portion of the judgment dismissing the contractor's contract claims and remand the case for further proceedings.

Royal Insurance, v. R & R Drywall and Tennessee Department of Commerce and Insurance
M2002-00791-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Chancellor Carol L. McCoy

A workers' compensation insurance carrier assessed a retrospective premium increase of over $60,000 against a contractor after auditing the company's books and finding evidence that its subcontractors employed more workers than the contractor had declared. The contractor filed an administrative appeal of the assessment, arguing that the additional workers were not actually employees of its subcontractors, but members of de facto partnerships, and thus not covered under the contractor's policy. The administrative law judge agreed, and found that the contractor was not liable for the additional premium. The Chancery Court of Davidson County reversed the administrative law judge, finding that the insurance company was entitled to the additional premium, because it had borne the risk of liability to those workers for on-the-job injuries. We affirm the Chancery Court.

Franklin Iron & Metal Recycling, Inc., v.Worley Enterprises, Inc., et al.
M2002-02361-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor R.E. Lee Davies

Defendants appeal the action of the trial court denying a Tennessee Rule of Civil Procedure 59.04
motion seeking to set aside a previous grant of summary judgment. We have determined that the
trial court did not abuse its discretion in denying the motion and therefore affirm the judgment.

Old Republic Surety v. Morris Eshaghpour
M2002-01890-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Walter C. Kurtz

A building contractor agreed to make certain repairs to a residence and procured a performance bond as required by the Metro Government. To obtain the bond the contractor was required to execute an indemnity agreement favorably to the bonding company. The homeowner complained of the quality of the contractor's workmanship, and the Codes Department of the Metro. Government determined that certain remedial action should be taken by the contractor in order to achieve compliance with the building code. The contractor declined to do so, insisting that the problems complained of were caused by the homeowner; whereupon, the bonding company engaged another contractor to make the repairs, and filed this action against the initial contractor for indemnification. The Circuit Court ruled in favor of the bonding company. We affirm.

Alfred T. Duncan, Rosa L. Duncan, and Jerry Wayne Bell v. Yvonne Elizabeth Qualls, Jerry Barber and wife, Margie Barber, and H. Tom Kittrell, Sr.
M2002-00520-COA-R3-CV
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Chancellor Russell Heldman

This is a boundary line dispute. The plaintiffs filed suit against the defendants to establish common boundary lines and to recover for timber cut from their land. One of the defendants counterclaimed for damages to his land. The trial court found that the defendants' proposed boundary line was the correct boundary line, but granted the plaintiffs a perpetual easement over the defendants' land. The trial court declined to award the plaintiffs compensation for the cut timber. On appeal, one of the defendants argues that the trial court erred in denying a motion to produce findings of facts, erred in granting a perpetual easement across the defendants' land, and erred in failing to grant the defendants damages. The plaintiffs assert that the trial court erred in failing to award them damages and discretionary costs. We reverse the award of a perpetual easement since the record does not indicate that such relief was sought, and affirm the remainder of the trial court's decision.

John M. Hollis, individually and as the Surviviing Parent of Raven BLair Hollis, v. W. Charles Doerflinger, Administrator ad Litem for the Estate of Rhonda B. Hollis, et al.
M2002-00222-COA-R3-CV
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Judge Stella L. Hargrove

This is an insurance case. The mother and the father were covered by an automobile insurance policy that excluded coverage for certain family members who were residents of the same household as the insureds. The mother was pregnant with a viable fetus. She was at fault in an automobile accident in which she and the fetus died. On behalf of the deceased fetus, the father filed a wrongful death action against the mother's estate. On a motion for partial summary judgment, the father sought a declaratory judgment to determine whether the insurance company was obligated to provide coverage for the deceased fetus. The trial court found that the insurance policy's family exclusion provision was ambiguous. Consequently, it construed the policy in favor of the father, finding that the fetus was not considered a resident of the father's household and that the insurance company was required to provide coverage for the deceased fetus. After a trial, the father was awarded damages plus prejudgment interest. The insurance company and the administrator ad litem of the mother's estate appeal. The insurance company argues that the fetus was excluded from coverage. The administrator ad litem of the mother's estate asserts that the trial court erred in awarding prejudgment interest. We reverse, finding that the fetus was a resident of the mother's household, and consequently a resident of the father's household, and that the insurance company was therefore not obligated to provide coverage for the fetus. The award of prejudgment interest is reversed as well.

Randy J. Overstreet v. Rebecca D. Overstreet
M2002-01178-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Marietta M. Shipley

In this divorce Husband appeals the type and amount of alimony awarded Wife at the end of a twenty-three year marriage. Because the evidence does not preponderate against the trial court's findings and the trial court acted within its discretion in applying relevant legal principles, we affirm.

Hazel Ann Edde v. Gladys Dalton Edde
M2002-01204-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Muriel Robinson

After a thirty-six year marriage, Wife filed for divorce on the grounds of irreconcilable differences, inappropriate marital conduct, and adultery. The trial court granted the divorce to Wife, divided the marital property, and awarded Wife alimony in futuro in the amount of $425 per month. Husband appeals. Because the evidence does not preponderate against the trial court's decision, we affirm the decision of the trial court.

In the Matter of: R.L.H., A Child Under Eighteen (18) Years of Age, State of Tennessee Department of Children's Services, v. Darlene Medley Hall - Dissenting
M2002-01179-COA-R3-JV
Authoring Judge: Presiding Judge Frank Crawford
Trial Court Judge: Judge Floyd Don Davis

While I concur in the majority’s opinion finding that grounds for termination of Hall’s parental rights as to R.L.H. have been established by clear and convincing evidence, I dissent as to the majority’s conclusion that termination of Hall’s parental rights is in the best interests of the minor child. I recognize that the evidence is certainly not favorable to Hall in some particulars, including the fact that her sole support is derived from social security, that she has no prospects of employment in the near future, her past failure to provide a safe and suitable home for the minor child in the face of abuse, her impaired mental condition, and the fact that Hall had no suitable residence for the child at the time of trial. However, this court must balance this evidence with the situation as it pertains to R.L.H. R.L.H. is a special needs child who has specific learning, speech, and behavioral problems. All reports indicate that R.L.H. is in need of continued counseling and therapy. Under the current arrangement, R.L.H. resides in a therapeutic foster home under the care of trained foster parents. This foster home has served as a stable and supportive environment for the minor child since approximately July 2000.

Town of Rogersville, ex rel. Water Commission v. Mid Hawkins County Utility District
E2002-01727-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge John K. Wilson

Petition to alter Respondent Utility's boundary was sustained by County Executive and Trial Court. On appeal, we vacate and remand with instructions.

Charles T. Kimery, v. Unicoi County Insurance Agency, et al.
E2002-00849-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Chancellor G. Richard Johnson

In a dispute over corporate ownership and management, the Trial Court awarded Judgment for compensatory and punitive damages and attorneys fees. On appeal, we affirm the compensatory damages and attorney fees award, but reverse punitive damage award.