COURT OF APPEALS OPINIONS

E2001-00150-COA-R3-CV
E2001-00150-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Telford E. Forgerty, Jr.

Ed Davis vs. City of Milan
W2001-00801-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Clayburn L. Peeples
Farmer sued city for damages resulting from a fire that destroyed his barn alleging that the city's utility division was negligent in installing a pole and wire on his property and was also negligent in failing to prevent an electrical surge that caused the failure in the wiring. The trial court granted summary judgment to city, and plaintiff appeals. We reverse.

Kimberly Day v. John Day
M2001-01624-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Russell Heldman
This is a post-divorce case. It is before the Court on the application of John Arthur Day ("Husband") seeking relief from the interlocutory order of the trial court denying his motion for summary judgment. Husband's summary judgment motion was filed in response to the Tenn. R. Civ. P. 60.02(1) motion filed by his former wife, Kimberly Beard Day ("Wife"), in which she seeks relief from portions of the parties' judgment of divorce (sometimes referred to herein as "the judgment"), specifically the child support, division of property, and alimony provisions of the incorporated marital dissolution agreement. Husband's application to this Court was originally filed pursuant to Tenn. R. App. P. 10. Before his application was acted upon, he converted it to a request for relief pursuant to Tenn. R. App. P. 9. This change in approach followed the trial court's reversal of its earlier order denying him Rule 9 relief. We granted Husband's Rule 9 application. We find that the material facts are not in dispute and that those facts establish that Husband is entitled to a judgment as a matter of law. Accordingly, we (1) reverse the trial court's order of April 24, 2001, denying Husband's motion for summary judgment and (2) dismiss Wife's Rule 60.02(1) motion.

Barbara Cochran vs. Jackie Cochran
E2001-00848-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Rex Henry Ogle
This is a suit wherein the Plaintiff, Barbara K. Cochran, sues her former husband, Jackie D. Cochran, seeking specific performance of her claimed right of first refusal to purchase certain real estate. Thomas M. Crawford and his wife, who had purchased the property from Mr. Cochran, were also made parties Defendant. The Trial Court found that Mr. Cochran had met his obligation to give Ms. Cochran the right to purchase the property in accordance with her right of first refusal and that she had declined to accept the offer. We affirm.

William R. Varner vs. City of KnoxviIle
E2001-00329-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Sharon J. Bell
By way of a complaint for writ of certiorari, the plaintiff challenges the decision of the Knoxville City Council ("the City Council") to deny his application to rezone his .5 acre lot from low density residential to commercial for the expansion of a used car lot located on adjacent property. Following a bench trial, the court below dismissed the complaint. We affirm.

Lane-Detman, L.L.C. , et al vs. Miller & Martin, et al
E2001-00444-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Buddy D. Perry
In 1995, Lane-Detman, LLC, Clara Lane, and Darlene Lane-Detman ("Plaintiffs"), invested $600,000 in two businesses in which Samuel Cooper ("Cooper") had an ownership interest. This investment soured, and in December 1997, Plaintiffs obtained a default judgment against Cooper. Before Plaintiffs invested with Cooper, Plaintiffs' attorney, defendant W. Scott McGinness, Jr. ("Defendant McGinness"), performed a background search on Cooper at the request of Plaintiff Darlene Lane-Detman ("Plaintiff Lane-Detman"). In addition to other investigative efforts, Defendant McGinness had the co-defendant, Equifax Services, Inc. ("Defendant Equifax"), perform a background search on Cooper. Defendant Equifax's report revealed no questionable or negative history on Cooper. After Plaintiffs obtained their default judgment against Cooper, Plaintiffs hired other counsel to assist with collection of the judgment. In 1998, Plaintiffs' new counsel uncovered an abundance of questionable and negative history on Cooper. Thereafter, in 1999, Plaintiffs sued Defendant McGinness and his law firm, Miller & Martin ("Defendant Miller & Martin"), and Defendant Equifax. The Trial Court granted summary judgment to the defendants, finding that Plaintiffs' claim against Defendant Equifax was barred by an exculpatory clause in the contract between Defendant Equifax and Defendant Miller & Martin and that Plaintiffs' claim against Defendants Miller & Martin and McGinness was barred by the statute of limitations. Plaintiffs appeal. We affirm.

Meagan Arnold vs. Charles Arnold
E2001-00596-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John K. Wilson
This is a suit by a minor brought by her mother, and also by her mother individually against the minor's grandfather, Charles Arnold and her father Randy Arnold. The child was injured when she placed her hand into the fan belt of a tractor which was stationary with the engine running. The Trial Court granted the father's motion for summary judgment and denied the grandfather's. We affirm.

2000-02837-COA-R3-CV
2000-02837-COA-R3-CV
Trial Court Judge: Thomas R. Frierson, II

Donna Sharon Presley vs. Clavin Herman Shadrick, et al .
E2001-00015-COA-R3-JV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Patricia R. Hess
This is a custody and guardianship suit between petitioners, neither of whom is the biological or adoptive parent of the set of twins ("Children") who are at the center of this dispute. The parties in this appeal are, on one side, the Children's maternal great uncle and his wife, Calvin Herman Shadrick and Willie Mae Shadrick ("Shadricks"), and, on the other side, the children's paternal grandmother, Donna Sharon Presley ("Presley"). The trial court granted custody and guardianship of the Children to the Shadricks. Presley appeals. We affirm

J.D. Hickman vs. TN Board of Paroles
M2000-02846-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Irvin H. Kilcrease, Jr.
This appeal involves a prisoner's efforts to obtain a mandatory parole date. After the general counsel for the Tennessee Board of Paroles informed him that he was ineligible for mandatory parole, the prisoner filed a common-law writ of certiorari in the Chancery Court for Davidson County seeking a declaration either that he is entitled to a mandatory parole date or that the Board had been employing the wrong legal standards with regard to his parole date and the parole dates of all other prisoners sentenced after 1989. In response to the Board's Tenn. R. Civ. P. 12.02(6) motion, the trial court dismissed the prisoner's petition because it was not timely filed and because the Tennessee Criminal Sentencing Reform Act of 1982 had prospectively repealed mandatory parole by implication. On this appeal, the prisoner asserts that his suit was timely filed and that the trial court erred by concluding that he was not entitled to a mandatory parole date. We have determined that the prisoner's complaint was timely; however, we have also determined that he is not entitled to a mandatory parole date.

Stacy Harris vs. 4215 Harding Road Homeowners Association
M2000-02414-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Mccoy
The appellant, a unit owner in a high-rise condominium, sued the Homeowners Association, claiming that her assessment for common expenses had been too high for the twenty years she had owned the unit. She sought reimbursement of the overpayment and an injunction against further assessments based on the percentage of her ownership stated in the Master Deed. The Chancery Court of Davidson County granted summary judgment to the Association and ordered the appellant to pay attorney's fees and costs. We affirm and remand the cause for the assessment of attorney's fees for the appeal.

Jessie Anthony vs. Melbourne Holland
W2001-00745-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Donald H. Allen
This is an appeal from a judgment by the trial court, sitting without a jury, that the defendant's negligence was not the proximate cause of plaintiff's injuries. We hold that the evidence does not preponderate against the factual findings of the trial court. We therefore affirm.

Kevin Stumpenhorst vs. Jerry Blurton Jr.
W2000-02977-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Roy B. Morgan, Jr.
This case arises from an automobile accident in which the Appellee was injured while a passenger in a truck driven by the Appellant's son. The Appellee filed a complaint in the Circuit Court of Madison County against the Appellant and his son. The Appellant and his son filed an answer which specifically pled an affirmative defense of comparative negligence. The Appellee filed a motion for summary judgment against the Appellant and his son. The trial court denied the motion for summary judgment against the Appellant and granted the motion for summary judgment against the Appellant's son. The Appellee filed a motion to strike the affirmative defense of comparative negligence. The trial court granted the motion to strike. Following a jury trial, the jury found that the Appellee's injuries were caused by the negligence of the Appellant's son and that the Appellee was entitled to recover $1,300,000.00 in damages. The jury found that the Appellant was liable under the family purpose doctrine. The Appellant filed a motion for a judgment notwithstanding the verdict, for a new trial, or for a remittitur. The trial court denied the Appellant's motion. The Appellant appeals the decision of the Circuit Court of Madison County disallowing the Appellant to introduce evidence of the Appellee's comparative negligence. The Appellant also appeals the jury verdict finding the Appellant liable under the family purpose doctrine for $1,300,000.00 in damages. For the reasons stated herein, we reverse and remand this case for a new trial in accordance with this opinion.

Richard Jolly vs. Lynette Jolly
W2001-00159-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Martha B. Brasfield
This is a divorce case regarding the distribution of marital property. The wife moved from Tennessee to Kansas with the parties' four minor children and later filed a petition for divorce. The Kansas court awarded the wife a divorce, custody of the children, and child support but found that it did not have jurisdiction to order a division of the parties' marital property located in Tennessee. Thereafter, the wife filed this action in Tennessee seeking a division of the parties' marital property in Tennessee. The trial court ordered that the Tennessee property be sold and that the husband's share of the sale proceeds be reduced by the amount of unpaid child support. On appeal, the husband argues, inter alia, that the trial court erred in recognizing the Kansas divorce decree. We affirm, finding that the Kansas decree was entitled to full faith and credit and that the trial court did not err in dividing the parties' marital property in Tennessee.

Sarah Whitten vs. Dale Smith
W2001-01347-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Ron E. Harmon
This is a suit for the failure to pay a real estate commission. The Appellant filed a complaint against the Appellees in the Chancery Court of Hardin County. The Appellees filed a motion to dismiss for lack of subject matter jurisdiction and improper venue. The trial court denied the motion to dismiss. The Appellees filed an answer and counter-complaint. A trial was held on the complaint and counter-complaint. The trial court entered an order finding that the Appellees did not owe the Appellant a real estate commission and dismissing the counter-complaint. The Appellant appeals the order of the Chancery Court of Hardin County finding that the Appellees did not owe the Appellant

Taylor Brown vs. Jerry Nowlin
W2001-01455-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert L. Childers
This dispute addresses the applicability of the "made whole" doctrine to the subrogation rights of TennCare, Tennessee's medicaid waiver program, where the insured and the tortfeasor reached a settlement agreement without the participation or consent of TennCare. We hold that the made whole doctrine did apply to TennCare at the time this case was settled and the order entered. Affirmed.

Tip's PackageStore, Inc. vs. Commercial Ins. Mgrs., Inc.
E2000-02070-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Sharon J. Bell
Plaintiffs H. Wayne Tipton ("Tipton") and Tip's Package Store, Inc., (Tip's) brought this lawsuit against George P. Taylor ("Taylor") and Commercial Insurance Managers, Inc., ("Commercial") seeking indemnification for an agreed judgment entered against Tip's in a lawsuit involving the tragic deaths of two young University of Tennessee students. Plaintiffs claim that Defendants improperly obtained for them an "occurrence" liability policy as opposed to a "claims made" liability policy, thereby resulting in a lack of insurance coverage for the wrongful death claims. After a jury trial, the Chancery Court entered judgment in favor of both Plaintiffs in the amount of $1,000,000 for indemnification based on the jury's answers to interrogatories. Defendants appeal, arguing, among other things, that: (1) the statute of limitations had run; (2) a covenant not to execute entered into between the families of the deceased young women and Plaintiffs extinguished any potential liability; and (3) the jury's responses to interrogatories were fatally inconsistent. We affirm in part, reverse in part, and remand.

E2000-02268-COA-R3-CV
E2000-02268-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Russell E. Simmons, Jr.

Gloria Neuenschwander vs. Roy Neuenschwander
E2001-00306-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: William M. Dender
Trial Judge refused to recuse, set amount of alimony, and established rental value of parties' property. On appeal we reverse the change in the amount of alimony by the Trial Court, but otherwise affirm.

Beal Bank vs. RBM Co., Est. of H.A. Webster, Michael Webster, and Richard Webster
E2001-00520-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Frank Brown, III
The trial court admitted into evidence the loan records from NationsBank through a witness who was thoroughly familiar with the record-keeping process. On appeal, we affirm.

Linda Musick vs. Calvin Musick
E2001-01140-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: John S. Mclellan, III
The Trial Court granted parties a divorce, divided marital property, and awarded alimony. The parties have appealed on issues of evidence, division of marital property, the granting of alimony, and wife's attorney's fees. We affirm.

Pamela K. Cantrell v. James Michael Cantrell, Jr.
2001-00259-COA-R3-CV
Trial Court Judge: Jerri S. Bryant

Polk County vs. Glenda B. Rogers , d/b/a Ocoee River Rats
E2001-00004-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jerri S. Bryant
In this appeal from the Polk County Chancery Court the Appellant , Glenda B. Rogers, d/b/a Ocoee River Rats, contends that evidence presented at trial showed that the classification of whitewater rafting businesses and their customers under a private act applicable to the Appellee, Polk County, assessing a privilege tax on guided rafting ticket sales by such businesses in Polk County is without reasonable basis and that the Trial Court's finding to the contrary was in error. We affirm the judgment of the Trial Court and we adjudge costs of the appeal against the Appellant.

Vicky Lockhart vs. Robert Lockhart
W2000-02922-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Martha B. Brasfield
The Appellant and the Appellee were divorced by final decree of divorce incorporating a marital dissolution agreement entered into by the parties. The marital dissolution agreement provided that the Appellee was to have custody of the parties' two minor children. The Appellant filed a petition to modify custody of the parties' children in the Chancery Court of Tipton County. At the hearing on the petition, the Appellant first raised the issue that the Appellee was not the biological father of one of the children. The trial court held that the Appellant was judicially estopped to raise the issue of the paternity of one of the children and denied the petition to modify custody. The Appellant appeals the decision of the Chancery Court of Tipton County holding that the Appellant was judicially estopped to raise the issue of paternity and denying the petition to modify custody. For the reasons stated herein, we affirm the trial court's decision.

Constance/Marcus Cherry vs. State
W2001-00038-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
This is a wrongful death case. The decedent was a patient at a state mental health institution. He died at the institution because he was not properly treated for urinary problems. The mother of the decedent filed this wrongful death action against the State, seeking damages for the decedent's loss of earning capacity, pain and suffering, as well as her loss of consortium. The complaint was later amended to add the decedent's son as a plaintiff. The son sought damages only for his loss of consortium. After a hearing, the Tennessee Claims Commission denied the mother any damages for wrongful death, holding that persons of unequal kinship cannot both maintain a wrongful death action relating to the same death. However, the Claims Commission awarded the mother her out-of-pocket funeral expenses, and awarded $25,000 to the son for his loss of consortium. The mother and son now appeal. We affirm, finding that, as between the mother and son of the decedent, the son has the greater degree of kinship with the decedent, and therefore the mother cannot be awarded damages for the decedent's wrongful death.