COURT OF APPEALS OPINIONS

Williamson County, et al. v. State Board of Equalization
M2000-03178-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Ellen Hobbs Lyle
In this case, a consortium of counties and cities appeals the decision of the Chancery Court of Davidson County upholding the action of the Tennessee State Board of Equalization in applying depreciable life schedules forming a part of Tennessee Code Annotated section 67-5-903(f) to commercial and industrial tangible personal property and in holding that personal property is not constitutionally required to be valued at its actual value in the implementation of Tennessee Code Annotated section 67-5-1509(a). The only issues before this court are the constitutionality of Tennessee Code Annotated section 67-5-903(f) and Tennessee Code Annotated section 67-5-1509(a). We hold both statutes to be constitutional and affirm the Chancellor.

Volunteer Investments, Inc. vs. Feller Brown Realty & Auction Co., et al
M2000-02644-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Irvin H. Kilcrease, Jr.
A developer who purchased three real estate tracts at auction filed suit to rescind the purchase on the grounds of misrepresentation or mutual mistake. The trial court dismissed his complaint. We affirm.

Karrie Gentry vs. Bryan Gentry
E2000-02714-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: L. Marie Williams
This is a divorce case. Karrie Beth Gentry ("Mother") was awarded primary residential custody of the parties' two minor children, and Bryan Keith Gentry ("Father") was ordered to pay child support of $2,100 per month. Father appeals, arguing that the trial court erred in imputing income to him for the purpose of determining child support. Because we find that the trial court properly calculated Father's income based upon what it found to be the only credible evidence presented at trial, we affirm.

Pearl Lynell Potts, Indiv.and Executor of the Estate of Gordon Ray Potts, Sr., Deceased, vs. Mary Potts Mayforth, et al vs. Alice Elizabeth Nelson
E2000-03116-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: G. Richard Johnson
The Trial Court entered a Default Judgment against Potts pursuant to Tenn. R. Civ. P. 37.02 and then summary judgment for plaintiffs. On appeal by defendants, we affirm the Judgment of the Trial Court.

Tonya Sexton vs. Hartco Flooring Co.
E2000-02489-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Billy Joe White
The Trial Court granted defendant summary judgment on plaintiff's claims of sexual harassment and retaliatory discharge from employment. On appeal, we affirm judgment on the sexual harassment claim, but vacate and remand on claim of retaliatory discharge.

Johnson City, TN vs. Steven Taylor & Elease Taylor
E2000-02491-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Jean A. Stanley
In this condemnation action, defendants attempted to appeal during pendency of the action in the Trial Court. This Court determined there was no basis to treat the issue as either an interlocutory appeal or extraordinary appeal, and dismissed appeal.

Hopewell Baptist Church vs. Southeast Window Mfg. Co., et al
E2000-02699-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: W. Dale Young
Hopewell Baptist Church brought suit against defendant Southeast Window Mfg. LLC., alleging that it was a successor corporation and liable under a contractual warranty given by its predecessor. The Trial Court ruled that the defendant was a successor corporation and had expressly or impliedly assumed the obligations under its predecessor's warranty through the acts of its agent. We reverse.

Jerry Brooks vs. Melissa Ibsen, et al
E2000-02870-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Billy Joe White
Jerry Brooks ("Plaintiff") contracted with Joe Ibsen d/b/a Century Wholesale Pool Supply, Inc. ("Defendant"), for the installation of a swimming pool. Plaintiff received a limited warranty. After the swimming pool developed several cracks and the parties could not reach agreement on the proper way to repair the pool, Plaintiff had the pool repaired in the manner recommended by an engineer he had retained. This lawsuit followed. The Trial Court awarded Plaintiff $61,531.28 in damages. We reduce the judgment to $51,371.28 and affirm as modified.

Harry M. Pack vs. Tina Lewin Ponak
M2000-02285-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Lee Russell
The Lincoln County Circuit Court granted the appellee's motion for summary judgment allowing the sale of real property held as joint tenants with the right of survivorship. We find, however, that whether there is an agreement not to partition the property is a disputed question of fact. We reverse the trial court and remand for further proceedings in accordance with this opinion.

Shirley Breeding vs. Robert Edwards, et al
E2000-01900-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Wheeler A. Rosenbalm
We are asked to decide whether the Supreme Court's decision in the case of Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000), is applicable to a case in which a plaintiff seeks to recover under the uninsured motorist provisions of its policy based upon the alleged negligence of an unknown motorist, the existence of whom is first asserted by a named defendant. In the instant case, a vehicle driven by the plaintiff Shirley Irene Breeding was struck by a vehicle driven by the defendant Robert Lewis Edwards and owned by the defendant Johnston Coca Cola Bottling Group, Inc. ("Johnston"). She filed a complaint against these defendants within the period of the statute of limitations and secured the service of process upon her uninsured motorist ("UM") carrier, the appellee Farmers Insurance Exchange ("Farmers"). Outside the period of the statute of limitations, the defendants amended their answer to allege that an unknown motorist caused or contributed to the accident. Within 90 days, Breeding amended her complaint to add John Doe, i.e., the unknown driver, as a party defendant. Farmers moved to dismiss the claim against it. It relied on Brown, a slip and fall case. The trial court agreed with Farmers and dismissed Breeding's claim. Breeding appeals, asserting, inter alia, that Brown does not apply to the instant case. We reverse.

Ronald Robinette vs. Mark Johnson
M2000-01514-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Tom E. Gray
This appeal involves a dispute over a promissory note. The jury below found for the Plaintiff. We affirm the trial court and remand for a determination of reasonable attorneys' fees incurred by Plaintiff with respect to this appeal.

Donald Andrews vs. Barbara Andrews
M2000-00163-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Tom E. Gray
In this post-divorce case, each party sought modification of the child support order. The obligor father sought a decrease based on the older child's eighteenth birthday and graduation from high school. The obligee mother sought an increase based upon her belief that the father's income had increased. The trial court ordered a decrease based upon the older child's emancipation, but increased the amount due for the remaining minor child. The mother appeals, contending that the trial court failed to consider some of the father's work related benefits when setting the support. Because the mother had the burden of proving additional income to the father, and because she failed to meet that burden, we affirm the trial court.

Melissa Jane (Nichols) Steen vs. Evans Harrington Steen
M2000-00313-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Ben H. Cantrell
In this custody case the General Sessions Court of Wilson County changed its custody order from joint care and control with primary custody in the father to exclusive custody in the father and standard visitation to the mother. The record shows, however, that the mother has had primary custody of the children since the divorce and that both parties are fit parents. They each love the children and take good care of them. Under those circumstances, we hold that there is a presumption in favor of continuity of placement. Therefore, we reverse the lower court's order and grant primary custody to the mother.

Berta Lee vs. Daniel Lee
W2000-01918-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: D. J. Alissandratos
This is a divorce case in which wife/mother was awarded custody of the parties' only minor son. Husband/father, acting pro se, appeals the trial court's decision with regard to the award of custody, the division of a retirement account, and attorney fees. We affirm.

Christopher Farley vs. Carrolle Farley
W2000-01987-COA-R9-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George R. Ellis
This appeal involves a change of custody motion filed by Mother in the chancery court which had previously entered a divorce decree awarding joint custody of the minor child, with primary physical custody with Father. The chancery court dismissed the motion, holding that it had no jurisdiction to hear a change of custody motion by virtue of a previously filed petition in juvenile court to declare the child dependent and neglected, which petition was dismissed by the juvenile court. Mother was granted an interlocutory appeal. We vacate and remand.

Brenda Hinton vs. Carey Stephens
W2000-02727-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Martha B. Brasfield
This appeal arises from a dispute between relatives over a parcel of real property. Although the parties executed a contract which stated that the purchase price was due in one year, the parties disregarded the contract language for eleven years. The trial court ruled that the parties had acquiesced in the extension of the contract and that they were now estopped to deny the contract's validity. As a result, the trial court ordered that the home be sold as per the terms in the contract. For the following reasons, we affirm the judgment of the trial court.

Susan Wilson vs. Rushton Patterson
W2000-02771-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: James F. Russell
This is a medical malpractice case. Plaintiffs, husband and wife, sued defendant physician for injuries allegedly caused to wife by the physician's negligence. Physician moved for summary judgment supported by his affidavit that he conformed to the required standard of care. Plaintiffs, in opposition to the summary judgment, filed a deposition and affidavit of a physician practicing in Kentucky that expressed his knowledge of the standard of care in Memphis and similar communities. Physician moved to strike the affidavit primarily on the ground that plaintiffs' physician expert did not show a familiarity with the standard of care in Memphis, Tennessee. The court granted the motion to strike the affidavit and also granted summary judgment to defendant physician. Plaintiffs appeal. We reverse and remand.

Judith Greer vs. Edwin Greer
W2000-02881-COA-R3-CV
Authoring Judge: Judge Robert L. Childers
Trial Court Judge: Ron E. Harmon
This appeal arises out of a divorce action filed by the parties in Benton County, Tennessee. Edwin Daniel Greer ("Husband") appeals the trial court's decision awarding the parties' marital residence to Judith Diane Greer ("Wife"), ordering Husband to pay rehabilitative alimony for four years, and awarding attorney's fees to Wife. We reverse the trial court's decision awarding the marital residence and the adjoining 9.4 acres to Wife and remand for further action by the trial court. We affirm the trial court's decision awarding Wife rehabilitative alimony and an attorney's fee of $3,000.00. We remand the case to the trial court for the amount and duration of rehabilitative alimony.

Betty Vestal vs. Thomas Lawler
W2001-00013-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Clayburn L. Peeples
Buyer, under warranty deed, sued seller for breach of warranty against encumbrances after receiving notice of trustee's sale pursuant to deed of trust encumbering the property. Seller answered the complaint and filed a third party complaint against the lawyer he retained to perform a title search, which search failed to show the deed of trust. The third party defendant filed a counter complaint against the seller. The trial court granted the buyer judgment on the pleadings against seller, dismissed seller's third party complaint, and granted third party defendant summary judgment against seller. Seller appeals. We reverse in part and modify in part.

K-Testing Lab, Inc., v. Estate of Larry Kennon, Brenda L. Kennon, Executrix
02A01-9703-CH-00064
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Chancellor D. J. Alissandratos

At issue in this case is a stock redemption agreement executed by the owners of a closelyheld corporation. The Chancellor issued a mandatory injunction instructing the holder of the stock certificates to abide by the stock redemption agreement and turn over the shares to the corporation, and the holder appealed. We affirm in part and reverse in part.

Virgil L. Hitchcock and Shirley R. Hitchcock, v. Allen S. Boyd, Jr., M.D., James D. Acker, M.D., and Semmes-Murphy Clinic, Inc., et al.
02A01-9705-CV-00107
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Judge D'Army Bailey

In this medical malpractice case, the plaintiff alleges that counsel for the defendants committed misconduct during the trial and appeals the trial court’s denial of the plaintiff’s motion for a new trial. We affirm.

Marie Puckett, et al v. Palma Diane Harrison and Tammy Harrison Kincer
02A01-9708-CH-00184
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor William Michael Maloan

This appeal involves a divorced couple who decided to forego certain provisions in 2 their marital dissolution agreement concerning ownership of the marital residence without the consultation of counsel or the court. This matter began as a divorce action in the Chancery Court of Weakley County, Tennessee, and was styled: Palma Diane Harrison vs. Robert E. Harrison. Robert (“decedent”) and Palma Diane Harrison (“appellee”) entered into a Marital Dissolution Agreement on June 27, 1994. The divorce was granted on September 12, 1994, and the final decree of divorce incorporated the Marital Dissolution Agreement therein. In pertinent part, the Marital Dissolution Agreement provided:

In the matter of Katherine C.
W2000-01714-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Christy R. Little
The trial court terminated the parental rights of Mother upon a finding that the grounds for termination were proven by clear and convincing evidence and that termination was in the minor child's best interests. We affirm the judgment of the trial court.

Vann Stiffler vs. Kroger Co.
W2000-02200-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: George H. Brown
This is a premise liability action arising from an incident wherein Mrs. Stiffler was struck in the back by shopping carts, knocked to the floor, and sustained injuries as a result of the fall. At trial, the jury awarded Mrs. Stiffler $75,000 and awarded $5,000 to Mr. Stiffler on his loss of consortium claim. Kroger filed a motion to set aside the verdict, for a new trial, or, alternatively, for remittitur. The trial court denied Kroger's motion, and this appeal ensued. We affirm.

Susan Weiss vs. State Farm
W2000-02506-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: John R. Mccarroll, Jr.
The Weisses procured supplemental insurance from State Farm through its agent, Mr. Brooks. In procuring such insurance, Mr. Weiss rejected uninsured/underinsured motorist coverage. Mrs. Weiss was involved in an automobile accident wherein she sustained damages exceeding the amount covered by her insurance policy. As the other driver involved in the accident was either uninsured or underinsured, the Weisses sought recovery from State Farm. State Farm denied the claim, determining that the Weisses did not have coverage under their umbrella policy. The Weisses brought an action against State Farm and Mr. Brooks. State Farm and Mr. Brooks filed a motion for summary judgment, which the trial court granted. We affirm.