COURT OF APPEALS OPINIONS

Carrie Mildred Mayer Dube v. Michael Norman Dube
E2002-00413-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Thomas J. Seeley, Jr.

Carrie Mildred Mayer Dube ("Wife") sued Michael Norman Dube ("Husband") for a divorce. Wife is primarily a stay-at-home mother and Husband is an emergency room physician. The Trial Court divided the marital property with 65% of the property going to Wife. The Trial Court awarded Wife permanent alimony of $3,200 per month after finding Wife could not be sufficiently rehabilitated. Child support was set based on Husband's income for 2000, during which time he claims to have worked approximately 90 hours per week. Husband appeals the division of marital property, award of permanent alimony, and amount of child support which was based on his 90 hour work week. We affirm.

Sally Qualls Mercer, et al., v. Vanderbilt University, Inc., et al.
M2000-00801-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Carol L. Soloman

This appeal involves a medical malpractice case arising out of the emergency treatment of an intoxicated driver who sustained catastrophic injuries in a single-vehicle accident. The driver's conservator filed suit in the Circuit Court for Davidson County alleging that the negligence of the driver's healthcare providers at Vanderbilt University Medical Center caused him to suffer irreversible brain injury that left him in a persistent vegetative state. A jury returned a verdict for the driver, assessing his damages at $7,366,000 and allocating seventy percent of the fault to Vanderbilt and thirty percent of the fault to the driver. Thereafter, the trial court determined as a matter of law that the driver's damages had been caused by a separate injury for which Vanderbilt was entirely responsible. Accordingly, the trial court set aside the jury's allocation of fault and entered a judgment holding Vanderbilt one hundred percent at fault for the entire amount of the driver's damages. We have determined that the judgment must be vacated and that Vanderbilt is entitled to a new trial because of the cumulative effect of the trial court's errors in excluding the testimony of three of Vanderbilt's witnesses as well as evidence of the driver's alcohol-related conduct.

Daniel Paul Spatafore v. Catherine Juanelle Spatafore
E2001-02459-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge John B. Hagler, Jr.

In this action, the Trial Court awarded custody of the parties' minor child to the father, and the mother has appealed.

Rhandie Parker, et al., v. Wanda McDaniel, et al.
E2001-03110-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge O. Duane Slone

Shannon Dale Welch ("Welch") and Stacy Ann Brooks ("Brooks") were the only two occupants in an automobile traveling at a high rate of speed when it collided with a vehicle driven by Rhandie Parker ("Parker"). Parker's brother-in-law, Hershel D. Williams ("Williams"), was a passenger in his vehicle. As a result of the accident, Parker claimed $27,100 in property damage, medical expenses of $8,241.52, and personal injuries. Williams claimed medical expenses totaling $9,545.38 and personal injuries. Parker's wife, Janice Parker ("Ms. Parker"), asserted a claim for loss of consortium. A jury returned a verdict against Welch in favor of Parker for $35,000, and awarded Ms. Parker nothing. Williams was awarded $29,000. All three Plaintiffs appeal with the primary issue being the adequacy of the verdict. We affirm.

Dorothy Rault Heideman v. Richard Lawrence Heideman
W2001-01486-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Karen R. Williams

William Davis vs. Reliance Electric Industrial
E2002-00973-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: John A. Turnbull
Arbitrator awarded compensatory and punitive damages to plaintiff for retaliatory discharge. On appeal, we affirm.

In Re: The Estate of Martha G. Spencer
M2001-02187-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: J. B. Cox
The origin of this appeal was a claim made against the Estate of Martha G. Spencer, by NHC Health Care of Lewisburg, a skilled nursing home, for services rendered her in the amount of $25,934.54. After a plenary trial the Chancellor dismissed the claim upon finding that NHC was estopped from pursuing its claim because of representations made that Ms. Spencer's expenses were covered by Medicare. NHC appeals. We affirm.

Mary F. Hall. v. Mary Rose Pippin.
M2000-01151-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Vernon Neal
The Defendants, Mary Rose Pippin and Dale Delaney appeal the Trial Court's dismissal of a Rule 60 motion, which attacked a previous determination by the Trial Court relative to their right to maintain a fence across a roadway over which the Plaintiffs, Mary F. Hall and Don K. Hall claim a private right-of-way. We affirm.

W2001-03088-COA-R3-CV
W2001-03088-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: James F. Russell

Shirley Daniel vs. James Daniel
W2002-01103-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: William Michael Maloan
This is an alimony case. At the time of the divorce, the parties had been married for almost thirty-one years. The husband was fifty-one years old, and the wife was forty-five years old. The husband owned his own backhoe/trackhoe company. The wife was a homemaker and raised the parties' three children. She has a sixth-grade education and earned her GED in 1997. Since the parties' separation, the wife had held five jobs but had not been able to maintain her employment. The parties agreed on the division of personal and real property, but disagreed over the value of the husband's business property. The trial court found that the husband made it difficult to ascertain the parties' financial situation. The trial court also found that the wife was economically disadvantaged and could not be rehabilitated. The wife was awarded alimony in futuro and attorney's fees. On appeal, the husband argues that the trial court erred in awarding the wife alimony in futuro and attorney's fees. We affirm, finding that the trial court did not err in concluding that the wife cannot be rehabilitated and in awarding alimony in futuro and attorney's fees.

Linda Sue Hathaway vs. Glenn Hathaway
E2002-00659-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Bill Swann
The Trial Court ordered father to pay daughter's tuition to a college of her choice, based upon a provision in the Marriage Dissolution Agreement. On appeal, we modify.

Donna Seals vs. Larry Seals
E2002-00100-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Howell N. Peoples
Donna Lynn Seals ("Wife") and Larry Clyde Seals ("Husband") were divorced in 2001, after seventeen years of marriage. The parties have one minor child ("Child"). Wife was primarily a stay-at-home mother during the marriage. Husband is employed as a general superintendent by Williams Union Boiler. The Trial Court found Husband's earnings for 2001 to be $117,000 in regular wages plus $16,380 in per diem. The Trial Court awarded Wife the parties' home in Hamilton County as alimony in solido and further ordered Husband to pay rehabilitative alimony in the amount of $1,365 per month for forty-two consecutive months. The Trial Court also ordered Husband to pay $2,063 per month in child support, which is an upward deviation due to Husband's absence of overnight parenting time since December 2000. Husband filed a post-trial Tenn. R. Civ. P. 52.01 motion for findings of fact. The Trial Court addressed this motion and entered its Final Decree of Divorce in November 2001. Husband appeals. We affirm.

Charles Montague vs. Michael Kellum
E2002-01733-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Jean A. Stanley
This legal malpractice claim arises from the filing by attorney Michael D. Kellum ("Defendant") of an unverified post-conviction petition on behalf of Charles Montague ("Plaintiff"). The post-conviction petition was dismissed by the Criminal Court on the merits and because it was not verified. We vacated a previous grant of summary judgment to Defendant to allow Plaintiff time to conduct discovery. While on remand and during discovery, the Court of Criminal Appeals affirmed the dismissal of Plaintiff's post-conviction proceeding for the sole reason that the petition was unverified. Thereafter, the Trial Court again dismissed this lawsuit after concluding, inter alia, Plaintiff had suffered no damages. We vacate and remand.

Debra Persada vs. Tim Persada
E2002-00397-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: G. Richard Johnson
In divorce action the parties reached an agreed property settlement by mediation. Before Judgment, the husband repudiated the agreement, but the Trial Court heard evidence on the validity of the agreement and enforced the agreement by entering Judgment thereon. We affirm on appeal.

Kay Dulin vs. Michael Dulin
W2001-02969-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: George H. Brown
This appeal arises from a custody dispute involving parental relocation with a minor child. The lower court dismissed Father's petition to oppose Mother's relocation and granted Mother's motion to dismiss. Father raises multiple issues on appeal. For the following reasons, we affirm.

Andrew Downs vs. Crystal Bailey/Joni Downs
W2002-01362-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: William A. Peeler
This is a child custody case. The two children involved were born to the mother and father during their marriage. In 1998, the mother and father were unable to care properly for the children, so the mother's sister (the children's aunt) obtained temporary custody. The mother and father divorced in 1999. In 2000, the father filed a petition for custody, claiming that he and his common-law wife could provide a stable home for the children. The aunt sought to retain custody. The mother intervened, arguing that, if permanent custody were not granted to the aunt, then custody should be awarded to her. After a hearing, the trial court granted custody to the father. The mother and the aunt appeal, both claiming that they are entitled to custody. We affirm, finding that the father's rights are superior to those of the aunt, and that the trial court did not err awarding custody to the father rather than the mother.

Deborah Smith vs. Riley Smith
W2002-00477-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George R. Ellis
This is an appeal of a final decree of divorce and the order of the trial court on the moton to alter or amend, involving issues of division of marital property, alimony in futuro, contempt of court, and injunctive relief for Wife's alleged harassment of Husband. Husband appeals. We affirm in part, reverse in part, and remand.

John Ruff vs. Raleigh Assembly
W2001-02578-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert A. Lanier
This appeal arises from a complaint filed by the plaintiff, John Ruff ("Mr. Ruff"), in the Circuit Court at Shelby County against the defendant, Raleigh Assembly of God Church, Inc. ("the church"), for assault, battery, false imprisonment and intentional infliction of emotional distress. At the conclusion of the trial, the trial court entered judgment in favor of the church. The parties raise multiple issues on appeal. For the following reasons, we affirm in part and remand

Alton Dixon v. Nike, Inc.
CH-00-2232-2
Trial Court Judge: Floyd Peete, Jr.

John Iovinelli vs. Steadman Estes
W2001-02968-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: D'Army Bailey
This is an appeal of the grant of summary judgment. The Appellants contend that the trial judge granted the Appellees summary judgment, sua sponte, and that they did not have notice or an opportunity to respond to the issues decided by the judge. We disagree and, for the following reasons, we affirm.

Janice Evans vs. Thomas Evans
W2001-03037-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Joe C. Morris
This is an appeal of a final decree of divorce involving issues of division of marital property, rehabilitative alimony, child support, and admission of evidence. Wife appeals. We affirm in part, reverse in part, and remand.

Dept. of Transportation vs. Sammy/Yvonne Hanna
W2002-00152-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: C. Creed Mcginley
This is a condemnation case. The Tennessee Department of Transportation alleges that the trial judge committed error by allowing the landowners to discover the opinions of an appraiser not designated to testify at trial and that these errors require overturning the jury's verdict because of the prejudice they caused. We find that errors were committed in the court below, but that these errors were harmless. Therefore, we affirm the verdict of the jury.

Stella Keltner vs. Open Lake Sporting Club
W2002-00449-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Jon Kerry Blackwood
This is a dispute over ownership of the Right Hand Arm portion of Open Lake. The trial court awarded summary judgment to Open Lake Sporting Club. Having determined that there are genuine issues of material facts, we reverse and remand for further proceedings.

Ronald Crafton v. John Van Den Bosch, Jr.
W2002-00679-COA-R9-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Donald H. Allen

Wesley A. Clayton, Andrew v. Sellers, Jackson, For Defendants-Appellees, Joseph Scott Wadley
W2002-01994-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Donald H. Allen