COURT OF APPEALS OPINIONS

Leta Hoalcraft vs. Walter Troy Smithson
M2000-01347-COA-R10-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Russell Heldman

Frances Luna, et al vs. Michael Breeding, et al
M2000-01932-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: John A. Turnbull
Plaintiffs voluntarily dismissed their suit for personal injuries and damages. Defendants then filed a motion for discretionary costs with accompanying affidavit as to reasonableness and necessity. The motion was denied and Defendants appeal, contending the trial court abused its discretion in disallowing their motion. We find it did not and affirm.

Douglas O'Connell v. YMCA of Middle Tennessee
M2000-02099-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Carol L. Soloman
This is a breach of contract case. The plaintiff entered into an agreement to become a member of the defendant health club. The plaintiff became dissatisfied with the the health club and regularly voiced his complaints to the management. Despite the actions of the health club's managers, the plaintiff's complaints continued. Eventually, the plaintiff was told that his membership with the health club was being terminated. The plaintiff filed a lawsuit alleging breach of contract and seeking compensatory and punitive damages as well as injunctive relief. On the defendant's motion for summary judgment, the trial court held that the parties' contract was terminable at will and granted the health club's motion. Subsequently, the plaintiff filed a motion for the trial judge to recuse himself. The case was reassigned and the reassigned trial judge heard the plaintiff's motion to alter or amend the prior order granting summary judgment. The plaintiff's motion to alter or amend was denied. We affirm, finding that the contract was terminable at will.

Yolannda Solomon vs. Brad Hager, et al
E2000-02586-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Thomas R. Frierson, II
This lawsuit finds its genesis in the construction of a residence. The plaintiff, Yolanda Solomon, filed suit against Allstate Insurance Company, alleging breach of contract and seeking damages and a bad faith penalty for Allstate's failure to pay her claim under a builder's risk policy covering her under-construction residence. Solomon later amended her complaint to seek additional damages under the Tennessee Consumer Protection Act. By way of a special verdict, the jury found (1) that the insurance policy provided coverage for Solomon's loss; (2) that Allstate had acted in bad faith in denying her claim; and (3) that Allstate had violated the Consumer Protection Act. As modified by the trial court, Allstate was ordered to pay $101,098, the full amount of the plaintiff's coverage less the deductible; a 25% bad faith penalty; $1,500 under the Consumer Protection Act; attorney's fees; discretionary costs; and prejudgment interest. Allstate appeals, challenging, among other things, the jury's finding of coverage, the assessment of the bad faith penalty, evidentiary and jury instruction rulings, and the amount of damages. We affirm.

E2001-00069-COA-R3-CV
E2001-00069-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Sharon J. Bell

Ruth Wilson v. Landon Snapp, Jr.
E2001-00172-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Richard E. Ladd
In this suit the Trial Court held a purported deed from Ruth N. Wilson to Landon Haynes Snapp, Jr., and Gene L. Snapp was champertous and void. The Snapps appeal, contending this holding was in error. We affirm.

State, Ex Rel, Pernie Barger, et al vs. City of Huntsville , State ex rel, George Brawner, Sr., et al vs. City of Huntsville
E2001-00395-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Billy Joe White
The Trial Court held service of process on the City's Mayor under Tenn. R. Civ. P. 4.04(8) was insufficient. On appeal, we affirm.

Alvin Bates vs. Dr. Joseph Metcalf
E2001-00358-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: James B. Scott, Jr.

Alvin Bates vs. Dr. Joseph Metcalf
E2001-00358-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: James B. Scott, Jr.

Alvin Bates vs. Dr. Joseph Metcalf
E2001-00358-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: James B. Scott, Jr.

Gerald Williams vs. Cora Williams
E2000-02782-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Steven C. Douglas
In this divorce action, Gerald B. Williams ("Plaintiff") appeals the Trial Court's award of alimony in futuro in the amount of $800 per month to Cora Rita Williams ("Defendant"). The parties were married thirty-eight years. While Plaintiff earns approximately $32,000 per year, Defendant's income is substantially less at approximately $11,220. The Trial Court specifically found that Defendant could not be rehabilitated. Plaintiff contends on appeal that the Trial Court erred in awarding any alimony to Defendant because the proof at trial did not establish Defendant's need for financial support and Plaintiff's ability to pay alimony. Plaintiff also argues that if the award of alimony is appropriate, the amount is excessive. We modify the alimony from $800 to $600 per month, and affirm the judgment as modified.

Shelton vs. Tidwell
E2000-02913-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Wheeler A. Rosenbalm
Defendants sold plaintiff equipment which had been stolen. The Trial Court entered a Judgment for plaintiff for the purchase money. On appeal, we affirm.

James Jones vs. Pierce Garrett, a/k/a Perry Garrett
E2000-00196-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Kindall T. Lawson
This is a suit wherein James Lee Jones, III, and his wife seek a determination that Pierce Brandon Garrett, a/k/a Perry Garrett, has abandoned his son so that they may adopt him. The Trial Judge found by clear and convincing evidence that abandonment had occurred, but did not make any finding as to the best interest of the child. We affirm the finding as to abandonment and remand the case for a determination as to best interest.

The Bank/First Citizens Bank, v. Citizens and Associates, Allied Mortgage Capital Corp., Frieda Gray, and Henry Gray, A/K/A James Gray, First Tennessee Bank
E2000-02545-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Judge Russell E. Simmons, Jr.

Drawer of checks and Bank failed to exercise ordinary care in transactions under Tenn. Code Ann. §47-3-406. Drawer was assessed 80% of fault and Bank 20%. Drawer appeals. We affirm, as modified. 

The Bank/First Citizens Bank v. Citizens and Associates, et al. - Concurring/Dissenting
E2000-02545-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Russell E. Simmons, Jr.

I concur in so much of the majority opinion as holds that Citizens is precluded from raising an issue on appeal as to the dismissal of First Tennessee Bank. I disagree, however, with the majority’s conclusion that the facts do not preponderate against the trial court’s finding that Citizens was 80% at fault for the loss occasioned by Frieda Gray’s forgery. In my judgment, Citizens did not engage in negligent conduct that substantially contributed to the forgery, as that concept is embodied in T.C.A. § 47-3-406. Accordingly, I would hold that the Bank, who was clearly negligent in allowing checks made payable to a business to be deposited directly into an individual’s bank account, was 100% at fault for the loss.

Billy and Mary Milliken v. Crye-Leike Realtors, et al
M1999-00071-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Clara W. Byrd

The buyers of a new residence filed this action against the builder and their realtor after discovering that the house was defective. The claims against the realtor alleged negligent misrepresentation and violations of the Tennessee Consumer Protection Act based in part on the agent's representation that the builder was licensed. The jury, using a jury verdict form, found that the realtor had committed a deceptive act or practice prohibited by the Consumer Protection Act, but determined that the buyers had suffered no loss therefrom. The jury also found the realtor liable for negligent misrepresentation, calculated the damages resulting from the realtor's negligent misrepresentation, and apportioned fault at 10% to the buyers, 10% to the realtor, and 80% to the builder, a nonparty. On appeal, the buyers argue that the verdict was inconsistent and challenge the assessment of costs and the failure to award attorney fees. We affirm the verdict, the denial of attorney's fees, and the apportionment of court costs. We vacate the denial of discretionary costs and remand for determination of that issue.

Larry Niedergeses, et al v. Giles County, Tennessee
M2000-00428-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Robert L. Holloway, Jr.

This case presents a tragic set of facts involving an automobile accident which occurred in Giles County on May 8 or 9, 1997, sometime between 11:15 p.m. and 12:15 a.m. Michael Niedergeses died as a result of this accident. His parents, Larry Niedergeses and Roberta Niedergeses, instigated this suit against Giles County alleging that the county's negligence in failing to maintain the bridge signage caused their son's accident and resulting death. The case was tried non-jury in the Circuit Court of Giles County. That court found Mr. Niedergeses fifty percent at fault and Giles County fifty percent at fault. Plaintiffs appeal this ruling asserting that the trial judge was in error and should have found Giles County more than fifty percent at fault. The appeal presents for review the question of "whether the evidence preponderated against the trial court's finding that John Michael Niedergeses was fifty percent at fault in the May 9, 1997 accident." We find that the evidence does not preponderate against the judge's findings and affirm the trial court's ruling.

William P. Livingston v. State of Tennessee, Board of Paroles
M1999-01138-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Carol L. Mccoy

Petitioner appeals the trial court's decision to deny his petition for common law writ of certiorari challenging a Board of Paroles decision to revoke his parole and the court's grant of Respondent's motion for summary judgment. Petitioner appeals the order on two grounds, (1) his due process rights were violated by the introduction of inadmissible evidence, and (2) these procedural flaws led to the hearing officer becoming biased and unable to conduct a fair and impartial hearing. For the reasons below, we find both claims without merit and affirm the trial court.

Larry Robbins, v. City of Johnson City, Tennessee
E2000-02952-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jean A. Stanley

This case involves the termination of Johnson City police officer, Larry Robbins. Dissatisfied with his department's handling of certain allegations of sexual harassment made by a secretary against officer Mike Lukianoff, Robbins authored an anonymous letter and sent it to each of the City Commissioners. The Chief of Police, who later learned of the letter, conducted an investigation. Robbins eventually admitted to writing the letter, to relating the allegations even though he had no personal knowledge of them, and to having a personal vendetta against the alleged harasser. The City terminated Robbins, primarily for conduct unbecoming an officer. Robbins appealed to the City Civil Service Commission, which upheld Robbins' termination. Robbins then appealed to the Washington County Chancery Court, which reversed the termination, but remanded for appropriate discipline. The City appeals the reversal of Robbins' termination, and Robbins appeals the remand for discipline. We find that the trial court erred in reversing the termination.

In Re: Adoption of J.R.W.
E2000-01335-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: John B. Hagler, Jr.
R.J.W. ("the Wife of the Adopter") instituted this action against her sister-in-law, K.D.W., seeking to set aside the adoption of K.D.W.'s natural son, J.R.W., by the plaintiff's late husband, M.W. ("the Adopter"), some eleven years earlier. The trial court dismissed the petition. We affirm.

Jerome Beasley, et al vs. Lloyd Amburgy
M2000-03122-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Barbara N. Haynes
A limousine driver, after taking Tylenol and two or three shots of novocaine for an abscessed tooth, suffered a blackout and lost control of the automobile. The trial court granted summary judgment to the driver and his employer on the ground that the blackout was not reasonably foreseeable. We affirm.

In re: Adoption of A.K.S.R. and A.T.S.R.
M2000-03081-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Leonard W. Martin
This appeal stems from a petition by both a paternal aunt and the foster parents to adopt twenty-month-old twin girls. The trial court found that the paternal aunt should adopt the children because relatives have preference over non-relatives in adoption proceedings and the foster parents did not meet the terms of the contract they signed with the Department of Children's Services. We reverse the decision of the trial court and grant the petition of the foster parents.

Anthony Murray vs. Dewey Lineberry
M2001-00097-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Julian P. Guinn
This appeal arises from a defamation action. The appellant sued the appellee for slander after the appellee aired a series of political advertisements including statements about the appellant, a deputy sheriff. The Wilson County Circuit Court granted the appellee's motion for summary judgment. We affirm the trial court's decision.

John T. Bell, et al vs. Richard Gene Nolan, et al
M2000-02684-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: John W. Rollins
The parents of a woman who died after being assaulted by her husband on the premises of an American Legion post filed a wrongful death claim, which named the husband and the American Legion post as defendants. The parents alleged that the Legion's employees had failed to render assistance to the injured woman. The trial court dismissed the complaint against the American Legion, reasoning that the surviving spouse is the only party entitled to maintain an action for the wrongful death of the other spouse. We reverse.

Don Stone vs. Donald Brickey, et al
M2000-03093-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Tom E. Gray
The trial court found that the plaintiff had a prescriptive easement over an old county road that abutted his land. The defendants argue that the trial court was in error because the plaintiff did not prove all of the elements required to establish a prescriptive easement. We affirm the trial court.