COURT OF APPEALS OPINIONS

Dorothy Cathcart v. James Mark Tillar, et al.
M2000-01439-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Robert L. Holloway

This case presents the issue of whether the administrator of an estate breached his fiduciary duty, under the circumstances herein presented, when he failed to see that an asset of the estate worth in excess of $10,000 was properly insured. We find that Defendant breached his duty when, after he was informed by Plaintiff that she had paid off the bank note on the mobile home after attempting to sell it, he failed to make any inquiries into who would pay the insurance, how the insurance would be paid, when the insurance was due, or whether any insurance was in effect. This breach of duty caused loss to the estate when the mobile home was destroyed by a tornado while uninsured. As a result, we find Defendant liable to the estate in the amount of $11,415, as this is the amount the proof showed would have been paid by insurance.

Mohamed Ali v. Board of Paroles
M2001-02302-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Ellen Hobbs Lyle
Appellant, an inmate of the Department of Corrections, appeals the dismissal of his Petition for Certiorari in the Chancery Court of Davidson County. He was convicted in 1993 of one count of rape and one count of attempted bribery of a witness. He received sentences of twelve years and three years, respectively, to be served consecutively. He seeks mandatory parole under Tennessee Code Annotated section 40-28-117(b) and other relief. We affirm the judgment of the trial court.

Danny Thomas vs. Dr. Molly O'Toole, et al
M2001-00305-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Hamilton V. Gayden, Jr.
Appellant, Danny Ray Thomas, a prison inmate, brought suit against two medical doctors, Molly P. O'Toole and Donald J. Boatright, on September 1, 2000 alleging various acts of malpractice. On November 9, 2000, Plaintiff sought a default judgment. On November 15, 2000, counsel for Defendants made his appearance and, on November 22, 2000, answered the complaint. Both Defendants filed motions for summary judgment, which motions were granted by the trial court. Plaintiff appealed, and after consideration, we affirm the judgment of the trial court.

2000-01720-COA-R3-CV
2000-01720-COA-R3-CV
Trial Court Judge: Jerri S. Bryant

Derrick Webb vs. Marvell Collier
W1999-01682-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Robert A. Lanier
This is a false arrest case. The plaintiff was arrested by one of the defendants, a security guard, in a Kroger grocery store. The plaintiff sued the security guard, Kroger, and others. The uncontroverted evidence showed that the security guard was an employee of a private security firm and not an employee of Kroger. The trial court granted Kroger's motion for summary judgment. We reverse, finding that Kroger may be held liable under some circumstances for the actions of a security guard who is an independent contractor.

Billy Hembree, et al vs. State
M2000-00767-COA-R3-CV
Authoring Judge: Judge William B. Cain
Lester Peavyhouse, having been found not guilty by reason of insanity after an April 1985 attack upon his sister with a hatchet, was committed by the Circuit Court of Stewart County to the Middle Tennessee Mental Health Institute ("MTMHI") in Nashville for involuntary care and treatment on March 1, 1988. In January 1989, he was transferred from MTMHI to Luton Community Mental Health Center subject to a mandatory outpatient therapy plan. In July 1989, he was transferred to Vanderbilt Mental Health Center Adult Outpatient Services section. Ultimately, Peavyhouse enrolled as a student at Austin Peay State University with out patient therapy through Harriet Cohn Center in Clarksville. On October 31, 1991, Peavyhouse entered a private residence in Clarksville with a .410 gauge shotgun and shot to death Misty Harding and Billy Hembree, seriously wounded David Ross and Robert Huff, and committed aggravated assaults upon Charity Baggett, Deanna Shepherd, Walter Scott Palmer, and Jeffery Underwood. Peavyhouse was convicted on all charges and sentenced to two consecutive life terms in prison plus fifty-six years. The estates of Harding and Hembree, together with the other victims of the October 31, 1991 assaults, brought suit against the State of Tennessee before the Tennessee Claims Commission charging MTMHI with negligence in the January 23, 1989 release of Peavyhouse from a secure treatment facility. The Tennessee Claims Commission rendered judgment in favor of the claimants and the State of Tennessee Appeals. We affirm the judgment of the Claims Commission.

B. Gayden Pate, et al vs. C & S of Tenn., Inc., et al
M2000-02283-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Leonard W. Martin
The plaintiffs signed a contract for the purchase of a new home, conditional on their ability to sell their present home and to obtain a mortgage loan. They gave the defendant developer $30,000 as earnest money. When they were unable to sell their home, they asked for the return of the earnest money. The defendant refused, and the purchasers sued. The trial court ordered the defendant to return the $30,000. We affirm, but we modify the court's judgment to assess interest and attorney fees against the sellers.

Tennessee Farmers Mutual Ins. Co. vs. Robert Westmoreland, et al
E2000-02693-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Jeffrey F. Stewart
Tennessee Farmers Mutual Insurance Company ("Plaintiff") filed a declaratory judgment action claiming that the homeowner's insurance policy issued to Robert and Elizabeth Westmoreland ("Defendants") was void due to material misrepresentations made on the application for insurance by Mr. Westmoreland. Defendants claim they provided the correct information, but it was incorrectly recorded by the insurance agent. The Trial Court granted Plaintiff's motion for summary judgment. We affirm.

George Clayton vs. Betty Clayton
E2000-01413-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Lawrence H. Puckett
This is a divorce case. The trial court granted the counter-plaintiff, Betty L. Clayton ("Wife"), a divorce from the original plaintiff, George M. Clayton ("Husband"), on the ground of inappropriate marital conduct; divided the parties' marital property; identified and decreed the distribution of their separate property; and awarded Wife alimony in solido of $325,000, plus attorney's fees of $15,000. Husband appeals the division of property, the amount of the alimony award, and the award of attorney's fees. We affirm.

In the matter of Leola Dedman vs. Mary Murphy
W2000-00086-COA-R3-CV
Trial Court Judge: Robert S. Benham
This appeal arises from an order of the Probate Court of Shelby County surcharging George Henderson, executor and trustee of the estate of Leola Dedman, in the amount of $11,018.29. This Court granted Mr. Henderson's T.R.A.P. Rule 10 Application for Extraordinary Appeal as to the surcharge. For the reasons stated herein, we affirm the trial court's decision.

2000-00197-COA-R3-CV
2000-00197-COA-R3-CV
Trial Court Judge: Pat Hess

Stefan Olaru vs. John Cooper, et al
E2001-00243-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Samuel H. Payne
This case arises out of an automobile accident. The plaintiff, Stefan Olaru, brought a personal injury action against John Cooper, the driver of the other vehicle involved in the accident. The plaintiff also sued Roberts Express, Inc., from whom the plaintiff had leased the 1995 GMC van involved in the accident. Roberts was sued for medical expenses, lost wages, and disability benefits under Personal Injury Protection ("PIP") insurance coverage provided to him by Roberts. By way of a special verdict, the jury found the plaintiff 60% at fault for the accident; assessed Cooper with the remaining 40% of fault; and determined that the plaintiff had not suffered any injuries as a result of the accident, thereby precluding the plaintiff's recovery under his PIP insurance coverage. The plaintiff appeals, arguing one issue, i.e., that the jury's verdict is contrary to the evidence. We affirm.

State of Tn Dpt. of Children's Services vs. Angela Knowles Huffman
E2000-03176-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: James H. Beeler
Angela Knowles Huffman appeals a judgment of the Juvenile Court for Sullivan County which terminated her parental rights as to her son, L.T.H. and her daughter, R.E.T. She contends on appeal that the evidence sought to justify termination does not meet the clear and convincing test. We affirm.

Esseoc Cement Corp. vs. PLC
E2002-01992-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: G. Richard Johnson
ESSROC Cement Corp. ("ESSROC") brought this action against PLC, Inc., formerly known as Paty Lumber Company, seeking judgment in amount of $112,551.43, plus service charges and attorney's fees, as payment for cement and masonry materials which it sold to PLC. After ESSROC filed a motion for summary judgment, the parties reached a settlement agreement whereby PLC agreed to pay ESSROC two installments of $25,000.00. PLC paid the first installment under the agreement but not the second. This prompted ESSROC to file a motion to rescind the settlement agreement on grounds of fraudulent misrepresentation. The Trial Court granted ESSROC rescission of the settlement agreement, and granted summary judgment in ESSROC's favor. We affirm the judgment of the Trial Court.

Citizen's Tri-County Bank vs. Frank Hartman, et al
M2000-03087-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Jeffrey F. Stewart
After a dispute arose between the widow and executor of husband's estate concerning ownership of two bank accounts, the bank filed a declaratory judgment action to determine ownership. The trial court determined that the checking account was owned by the widow, and the savings account was part of the decedent's estate. Both parties appealed. We reverse in part and affirm in part, declaring that both accounts are part of the husband's estate.

Kwan & Han-Lee vs. John Doe & Allstate Ins. Co.
M2000-03208-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Walter C. Kurtz
This is a lawsuit against an uninsured motorist insurance carrier arising from a cat jumping out of a car. The plaintiffs were injured in a car accident allegedly caused when a cat leapt from a vehicle and into the plaintiffs' lane of traffic. The plaintiffs filed suit against several parties, including the plaintiffs' uninsured motorist carrier. The uninsured motorist carrier moved for summary judgment, asserting that the negligent actions of the unidentified driver did not arise "out of the ownership, maintenance, or use of a motor vehicle." The motion was granted. The plaintiffs then sought to amend their complaint, and this motion was also denied. A trial was then held on the claims against the remaining defendants and the jury apportioned fifty percent of the fault to the unidentified driver. The plaintiffs now appeal the grant of summary judgment to the uninsured motorist carrier and the denial of the plaintiffs' motion to amend their complaint. We affirm.

Delois Armstrong vs. James Coleman
W2000-01122-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Robert W. Newell
In two cases consolidated for appeal, the petitioners, mothers that are provided child support enforcement and paternity establishment services by the State of Tennessee pursuant to federal and state law, appeal the orders of the trial court setting periodic child support and establishing child support arrearages. The trial court failed to follow the child support guidelines, stating that the guidelines are an unconstitutional violation of the equal protection clause of both the state and federal constitutions insofar as the guidelines do not allow credit to a payor-parent for obligations imposed by child support orders concerning children born to the payor-parent subsequent to the subject child. We reverse and remand.

Johnny Conaway vs. Semiko L. Lewis (Conaway)
M2000-00617-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Muriel Robinson
This is a suit by an incarcerated prisoner seeking a divorce from his unincarcerated wife. The complaint alleges that the parties have no children and seeks divorce on the grounds of adultery and desertion. The defendant was before the court by personal service of process and did not answer the complaint. The prisoner sought default judgment which motion was never acted upon by the trial court. The circuit court clerk served a notice on the parties in this case on January 7, 2000, that since the case had been filed since December 9, 1998 and not prosecuted, it was subject to dismissal for failure to prosecute. On February 29, 2000, the case was dismissed for failure to prosecute. The prisoner/plaintiff timely appealed and we reverse the action of the trial court.

Michael Pine vs. Dept. of Correction
M2000-02410-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Irvin H. Kilcrease, Jr.
This is a declaratory judgment action by an inmate regarding his eligibility for sentence reduction credits. The inmate pled guilty to raping a child. A Tennessee statute requires that anyone convicted of the rape of a child must serve his entire sentence. Notwithstanding this, the inmate was sentenced as an especially mitigated offender eligible for parole after serving twenty percent of his sentence. The inmate filed a petition for declaratory judgment, arguing that he should be eligible to earn sentence reduction credits because he was sentenced as a mitigated offender. The trial court held that the inmate was not eligible for sentence reduction credits. We affirm, finding that the inmate's sentencing as a mitigated offender did not alter the statutory requirement that he serve his entire sentence.

Pamela Jean Anness vs. Michael Mario Chapdelaine, Sr.
M2000-01792-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Russell Heldman
This appeal arises from the appellee's filing of a Petition to Change Custody in the Chancery Court of Williamson County. Following a hearing, the trial court entered an Order granting custody of the parties' minor children to the appellee. The trial court ordered the appellant to pay child support in the amount of $1,480.00 per month. The appellant appeals the amount of child support set by the trial court. For the reasons stated herein, we affirm in part, reverse in part, and remand the trial court's decision.

Darrell Cannon vs. Dept. of Correction, et al
M2000-01950-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Irvin H. Kilcrease, Jr.
The petitioner sought a declaratory judgment regarding the computation of his prison sentence by the Department of Correction. The Department made a correction, essentially consistent with the petitioner's request, and filed documents demonstrating that all but two of the petitioner's sentences have expired. We affirm the trial court's dismissal of the claims remaining in the petition because the petitioner has failed to demonstrate his entitlement to additional sentence reduction credits for a sentence imposed in 1983 which has expired or to pretrial jail credits for a sentence imposed in 1983 but to be served consecutively to four other sentences.

Fred Hodges vs. Virginia Lewis, Warden
M2000-02309-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Irvin H. Kilcrease, Jr.
Inmates of Tennessee Department of Correction filed in the chancery court a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. The chancery court dismissed the inmates' petition for lack of subject matter jurisdiction. Inmates have appealed. We affirm.

David Nevills vs. South Central Correctional Disciplinary Board
M2000-02324-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert L. Holloway
This appeal involves the denial of a petition for writ of certiorari brought in chancery court by a state prisoner. The prisoner requested review of actions allegedly in violation of due process taken by a prison disciplinary review board. The chancery court granted a motion for summary judgment in favor of the disciplinary review board and for the following reasons, we affirm.

Dept. of Children's Svcs. vs. S.S.S., J.S., and K.S.
M2000-01248-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: John P. Hudson
This case involves the termination of parental rights. The trial court terminated the parental rights of the mother in her son and daughter, and those of the children's two separate fathers. The mother and father of the daughter had been convicted of aggravated child abuse in criminal court. The mother filed a petition for post-conviction relief, which was denied, and she appealed to the Court of Criminal Appeals. Both the mother and the father of the daughter appeal the termination of their parental rights. The mother argues that her conviction for child abuse was not sufficient to satisfy the statutory grounds for termination of parental rights because it was on appeal, and the father argues that there was no direct evidence presented that he abused the children. We affirm, finding ample evidence to support the termination of both parents' rights.

Gerald Hopper vs. Patricia Hopper
M2000-01444-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Marietta M. Shipley
Wife appeals final decree of divorce as it pertains to a division of marital property and alimony in futuro award. The trial court charged Wife with entire amount of advance from house-sale proceeds and failed to award Wife one-half of Husband's retirement. Wife appeals. We modify the division of marital property and affirm as modified.