COURT OF APPEALS OPINIONS

Sandra Elmore vs. Greg Cruz
E2001-03136-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jackie Schulten
In this case the Appellant/Defendant, City of Chattanooga, appeals the judgment of the Circuit Court for Hamilton County awarding the Appellee/Plaintiff, Sandra Yvonne Elmore, compensatory damages for injuries sustained as a result of her arrest and imprisonment by the Chattanooga Police Department. We vacate the judgment of the Trial Court and remand.

Hellen Wilson vs. CSX Transportation
E2002-00291-COA-R9-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Neil Thomas, III
This interlocutory appeal raises the question of the admissibility of the testimony of three expert witnesses which the Plaintiff, Hellen M. Wilson, sought to present at trial. The Trial Court excluded the expert testimony of Dr. William J. Nassetta and certified pursuant to T.R.A.P. Rule 9 the following question for this Court: "whether the testimony of the expert witness, William J. Nassetta, M.D., as reflected in [his] attached affidavit,. . .is admissible under the doctrine of the Tennessee Supreme Court decision in McDaniel v. CSX Transportation, Inc." The Trial Court also granted permission to CSX Transportation (CSXT) to appeal its ruling admitting the testimony of two other expert witnesses offered by the Plaintiff. We hold that the testimony of all three expert witnesses is admissible under the principles enunciated in McDaniel.

TZE-Pong "Raymond" Ku vs. State
E2002-01076-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Tze-Pong "Raymond" Ku ("Plaintiff") is a student at the East Tennessee State University College of Medicine ("College"). After completing his first two years of study, Plaintiff was required to take the USMLE Step 1 examination. He took this examination and failed. Thereafter, the College removed Plaintiff from his third year clerkships and eventually created a list of requirements he had to meet in order to be allowed to resume his classes. After successfully suing the College in federal court based on a procedural due process violation, Plaintiff brought the present lawsuit for damages against the State of Tennessee claiming breach of written contract, to wit: his letter of acceptance to the College and the College's student handbook. The Claims Commission concluded these documents did not constitute a written contract and dismissed the lawsuit for lack of subject matter jurisdiction. Plaintiff appeals, and we affirm.

Tennessee Sports Complex vs. Lenoir City Beer Board
E2001-02481-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Frank V. Williams, III
The Trial Court revoked appellant's permit to sell beer in Lenoir City. On appeal, we affirm.

Jimmy Ray Dougherty, Jr. vs. Kaye Michelle Hodges Olson
E2002-00087-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: C. Van Deacon
Custody of minor child was ordered changed from mother to father by the trial court. We affirm.

Jack & Ruth Parnell vs. Delta Airlines
E2002-00589-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Neil Thomas, III
The Trial Court granted defendants summary judgment by finding defendants' conduct did not constitute outrageous conduct. We affirm.

Norma Pendolal v. Shirley Butler
M2002-00131-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Russell Heldman
This is an undue influence and fraud case. The father executed a will leaving his personal and real property to one daughter, with the remainder of his estate to be divided among all five of his children. The daughter moved from Chicago to Tennessee to care for the father. The father added the daughter's name to his checking account and bought a mobile home in which he and the daughter lived. The daughter utilized money from the joint checking account for her personal benefit. Later, the father executed a power of attorney in the daughter's favor. The daughter then transferred one of the father's certificates of deposit to herself. When the father died, no funds remained to be divided among the five siblings. The father's other four children filed suit against the daughter, alleging undue influence. The trial court referred the case to a special master, who found there was no confidential relationship prior to execution of the power of attorney. The special master found, however, that a confidential relationship existed after the execution of the power of attorney. The trial court found that the daughter rebutted the presumption of undue influence and invalidity of the transaction that took place after execution of the power of attorney. The trial court then concurred in the special master's findings. The plaintiffs appeal. We affirm as to the transactions prior to execution of the power of attorney. We reverse as to the transaction after execution of the power of attorney, concluding that the presumption of the invalidity of that transaction was not rebutted by clear and convincing evidence of the fairness of the transaction.

In re: Estate of Ralph I. Cammack, Deceased
M1999-02382-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor John W. Rollins

This is a dispute between the deceased testator's second wife and the two children of his first marriage. The testator and his wife executed mutual and reciprocal wills which passed the bulk of their estate to the survivor. The spouses agreed, and their wills reflected, that when the survivor died, the estate was to go equally to the testator's children. In conjunction with the wills, the spouses executed an agreement that they would not change their wills even after the death of the other. After the testator's death, the wife began dissipating the estate, selling the family home, and giving her own child the testator's expensive grandfather clock. In an effort to preserve the estate, the testator's children commenced the underlying action, seeking to establish a resulting trust. After the trial court granted the wife's motion for summary judgment, the testator's children lodged this appeal. Because testator's will gave the wife his estate in fee simple, she inherited the real property as tenant by entirety, and there is no clear and convincing evidence that the testator intended her merely to hold the property in trust for his children, we must affirm.

Oscar Little. et al., v. Samuel Watson, et al.
M2001-00230-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge James E. Walton

Samuel and Marguerite Watson appeal the final judgment of the trial court which found that a transaction between the Watsons and the Littles involving the purchase of a house created a resulting trust. The trial court divested out of the Watsons and vested in the Littles all interest in the house after the Littles obtained new financing for the house and paid off the previous mortgage in the Watsons' name and repaid the down payment with interest. We affirm the decision of the trial court.

Nations Rent of Tennessee, Inc., v. Mel Lange, et al., Forklifts Unlimited, LLC, et al., v. David Q. Wright, et al., Southern Wood Treatment Co., Inc. v. David Q. Wright, et al.
M2001-02368-COA-R3-CV
Authoring Judge: Special Judge Ellen Hobbs Lyle
Trial Court Judge: Chancellor Robert E. Corlew, III

Vendors of rental equipment filed suit to collect unpaid invoices from the landowner after the contractor abandoned the job. The trial court granted recovery based upon the Mechanics’ and Materialmen’s Lien Statute and quantum meruit. We reverse for insufficient proof on the correct measure of damages. Tenn. R. App. P. 3 as of Right; Judgment of the Chancery Court Reversed and Remanded.
 

Harper-Wittbrodt Automotive Group, LLC.,, v. Sam Teague et al.
M2001-02812-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Robert E. Burch

This is an appeal from an order of summary judgment enforcing an option to purchase clause in a lease for commercial property. The trial court awarded summary judgment to the plaintiff, finding it had exercised its option under the contract. We reverse summary judgment, finding a genuine issue of material fact as to the purchase price of the property.

William Hamer, et al., v. Robert C. Harris, et al.
M2002-00220-COA-R3-CV
Authoring Judge: Special Judge Ellen Hobbs Lyle
Trial Court Judge: Chancellor Allan W. Wallace

Homeowners sued a builder for defective construction. The trial court awarded damages for breach and attorney's fees under the Tennessee Consumer Protection Act. We reverse the award of attorney's fees based upon no proof of deceptive, misleading or unfair conduct by the builder.

Timothy J. Miele and wife, Linda S. Miele, Individually and D/B/A Miele Homes v. Zurich U.S.
M2001-01104-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

This appeal arises from a complaint filed against the Appellants in the Chancery Court of Williamson County for negligence, breach of contract, and violation of the Tennessee Consumer Protection Act relating to the construction of and failure to repair a new home. The Appellants were insured by the Appellee. Following a jury trial, the jury found that the Appellants breached the construction contract. The jury also found that the Appellants were guilty of negligence and engaged in willfully deceptive or unfair actions. The jury returned a verdict against the Appellants for $98,500.00. The Chancery Court of Williamson County doubled the damages under the Tennessee Consumer Protection Act and awarded attorney's fees and costs in the total amount of $303,248.55. The Appellee paid $48,500.00 in satisfaction of the judgment. The Appellants filed a complaint against the Appellee in the Chancery Court of Davidson County. The complaint alleged that the Appellee breached its obligation to pay the balance of the judgment, acted in bad faith by denying coverage to the Appellants, and willfully and knowingly violated the Tennessee Consumer Protection Act. The Appellee filed a motion for summary judgment. The trial court granted the Appellee's motion for summary judgment. The Appellants appeal the trial court's grant of summary judgment in favor of the Appellee. For the reasons stated herein, we affirm the trial court's decision.

Angela D. Siefker v. Gary C. Siefker
M2001-01458-COA-R3-CV
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Judge Muriel Robinson

This is a post-divorce case regarding alimony and child support. The husband was ordered to pay alimony in futuro, and child support for the parties' minor child. Later, the husband was terminated from his job, and his income dropped substantially. The husband fell behind in his support payments. Consequently, he sought a reduction in alimony and child support. Noting that the husband retained substantial assets, the trial court found that the husband was able to fulfill his obligations, denied his request for reduction in alimony, ordered him to pay his arrearage in alimony and child support, and awarded the wife reasonable attorney's fees. Child support was terminated because the minor child had graduated from high school by the time of the trial. The husband now appeals. We affirm, finding no abuse of the trial court's discretion, in of the termination of the husband's child support obligation, the wife's continued need for alimony, and the husband's retention of significant assets.

In the Matter of: T.K.C., T.J.C., C.B.W., T.S.W., T.S.C.
W2001-03017-COA-R3-JV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Harold W. Horne
This is a termination of parental rights case. The mother, Tonza Williams, appeals the order of the juvenile court terminating parental rights to her five children. For the reasons hereinafter stated, we affirm the juvenile court order.

In the matter of S.M.S.
W2001-02999-COA-R3-JV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Harold W. Horne
This appeal arises from a child custody proceeding. The juvenile court granted custody to the mother. This appeal ensued. For the following reasons, we remand for further findings of fact.

Jerry Hunter vs. MTD Products
W2002-00005-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Clayburn L. Peeples
Plaintiff sued Defendant alleging a conspiracy. The Defendant filed a motion for summary judgment which the trial court granted. Plaintiff appeals and we affirm.

James Clark vs. Jim Rose
W2002-01245-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Martha B. Brasfield
This case involves a prisoner's allegations that correctional personnel failed to follow internal policies and procedures concerning administrative segregation of prisoners, thus denying him his due process rights. As we are unable to determine from the record if Appellant's continued presence in administrative segregation is actually non-punitive in nature, we reverse the trial court's dismissal of Appellant's petition.

W2002-01754-COA-R3-CV
W2002-01754-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: George R. Ellis

State ex rel. Quinn Johnson vs. Mike Holm
W2002-00965-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Jon Kerry Blackwood
This is an appeal of a denial of a petition for a common law writ of certiorari. The petition was filed by a prisoner seeking review of two decisions against him by the prison disciplinary board. Because the petition was filed more than sixty days after the first decision, we have no jurisdiction to address the issues presented regarding that decision. The petition was timely filed in regards to the second decision against Appellant, but we find no merit in Appellant's contentions and affirm the ruling of the trial court.

Nancy Martin vs. Charles Martin
E2001-01569-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Telford E. Forgerty, Jr.
Charles Howard Martin appeals a judgment of the Trial Court which awarded Nancy Barnard Martin a divorce and certain other relief. We affirm.

Hickman vs. Lynn Brown
E2002-02020-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas J. Seeley, Jr.
Plaintiff charged a Trial Judge with violating Plaintiff's civil rights by assessing him with court costs in another case. The Trial Judge dismissed the action. We Affirm.

Kevin Mcnamara v. Marshall Monroe
E2002-00407-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Wheeler A. Rosenbalm

Hansen vs. Steven W. Bultman, et al
E2001-02664-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Dale C. Workman
In this jury case, the trial court remitted to $200,000 the jury's award of $350,000 to Albert Joseph Hansen ("Father"). The trial court's action was based upon its determination that Father had only sued for $200,000. Father appeals, contending that the trial court erred in remitting the jury's award. We affirm.

Eddie Williams vs. Dept of Corrections
E2002-00306-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Frank V. Williams, III
In this appeal from the Chancery Court for Morgan County the Petitioner/Appellant, Eddie Williams, Jr., contends that the Trial Court erred in dismissing his petition for writ of certiorari for failure to appear and prosecute. We vacate the judgment of the Trial Court and remand.