COURT OF APPEALS OPINIONS

Jerry Thomas Ricks vs. Dept. of Correction
M1999-01916-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Ellen Hobbs Lyle
This case arises from the commutation of the Appellant's prison sentence from eighty-five years imprisonment to forty years. The Appellant's commutation was revoked after he was arrested on misdemeanor charges. The revocation occurred following the expiration of the term of the commuted sentence but within the term of the original sentence. The Appellant filed a petition for declaratory judgment with the Chancery Court of Davidson County, claiming that the Appellee failed to correctly calculate his sentence expiration date. The trial court dismissed the Appellee's petition.

Patsy (Stiles) Templeton vs. Jeffrey Stiles
M1999-02388-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Charles D. Haston, Sr.
This appeal arises from a hearing in the Circuit Court of Warren County wherein the court divided the property of the Appellant and the Appellee following their divorce. In relevant part, the trial court awarded all the guns and retirement accounts to the Appellee and refused to hear the Appellant's testimony concerning improvements made to the real estate. The Appellant appeals from the order of the Circuit Court of Warren County, dividing the property of the Appellant and the Appellee. For the reasons stated herein, we affirm in part and reverse in part the trial court's decision.

M1999-02801-COA-R12-CV
M1999-02801-COA-R12-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell

George Scott vs. Linda Scott
M1999-00322-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Muriel Robinson
This appeal involves a post-divorce dispute over child support. Fifteen months after the parties were divorced in the Circuit Court for Davidson County, the custodial spouse petitioned the trial court to increase the noncustodial spouse's child support obligation because he was voluntarily underemployed and to hold the noncustodial spouse in criminal contempt. After being threatened with Tenn. R. Civ. P. 11 sanctions, the custodial spouse abandoned her criminal contempt allegations. Following a hearing, the trial court found that the noncustodial spouse was not voluntarily underemployed but increased his child support prospectively because of an anticipated increase in his income. On this appeal, the custodial parent takes issue with the trial court's refusal to find that the noncustodial parent was voluntarily underemployed, to make the increased child support retroactive to the date of her petition, and to award her only a portion of her legal expenses. We affirm the trial court and further find that the custodial spouse is not entitled to an additional award for the legal expenses she has incurred on this appeal.

Glenna Fink vs. Richard Fink
E2000-02468-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Telford E. Forgerty, Jr.
Glenna C. Fink ("Wife") filed a Complaint for Divorce against Richard H. Fink ("Husband") on the grounds of inappropriate marital conduct and irreconcilable differences. Husband filed an Answer and Counter-Complaint seeking a divorce on the same grounds. The Trial Court awarded the divorce to Wife and dismissed Husband's Counter-Complaint. The parties agreed to the sale of the marital residence, and the Trial Court awarded Wife $14,000.00 in attorney's fees out of the sale of the proceeds, with the remaining proceeds from the sale to be split 55% to Wife and 45% to Husband. Wife was awarded the full interest in her retirement/disability benefits. The Trial Court also determined that certain sums which Husband claimed were marital property were actually a gift to the parties' minor daughter and the daughter was, therefore, entitled to keep these funds. The Trial Court further awarded Wife $450.00 per month as alimony in futuro. Husband filed a Motion pursuant to Rules 59.02 and 59.04 of the Tenn. R. Civ. P. challenging these determinations. The Trial Court denied Husband's motion, and Husband appeals. We affirm, award Wife attorney's fees incident to this appeal, and remand this matter to the Trial Court for a determination of the amount of reasonable attorney's fees incurred by Wife on appeal.

Judy Hall Travis vs. Kenneth D. Travis, Jr.
E2000-01043-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Thomas R. Frierson, II
This appeal from the Hamblen County Chancery Court questions whether the Trial Court erred in finding that a portion of the value of the marital residence is the separate property of the Appellee, Kenneth D. Travis, Jr.,and whether the Trial Court abused its discretion by allowing Mr. Travis to claim the parties' minor children as dependents for federal income tax purposes, by failing to award the parties joint custody of their minor children, and in setting Mr. Travis's visitation schedule. We reverse in part, affirm in part and remand for further proceedings, if any, consistent with this opinion. We adjudge costs of the appeal against Judy Hall Travis and Kenneth D. Travis, Jr. equally.

Walter Hanselman, Jr. vs. Linda Hanselman
M1998-00919-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Donald P. Harris
This appeal involves a father's effort to reduce his child support and spousal support obligations. Approximately one year after the parties were divorced, the father filed a petition in the Hickman County Chancery Court seeking a downward modification of his support obligations because his income had declined due to his employer's cutbacks in the availability of overtime work. Following a bench trial, the trial court denied the father's petition because he had failed to establish a significant variance in his child support obligations and because he had failed to demonstrate that a substantial and material change in the parties' circumstances warranting a reduction in spousal support had occurred. We agree with the trial court's findings and affirm the judgment.

Tax The Costs on Appeal To The Appellant, James v. Doramus, on Behalf of Elizabeth Nicoll
M2000-01928-COA-R3-CV
Trial Court Judge: Ben H. Cantrell

Patricia Baker vs. Tiffany Hooper, et al
E2000-01615-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Russell E. Simmons, Jr.
Plaintiff appeals the Court's modification of her non-competition agreement with defendants and the amount of damages awarded, as well as the Court's refusal to recuse. We affirm.

Millisa Martinez, Ind., & Ex Rel Aaron Chavez, et al vs. Charles Martinez, et al
E2000-01990-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: W. Dale Young
This case presents a question of first impression. We are asked to decide whether, and, if so, under what circumstances, a driver who motions to another driver intending to turn left in front of the signaling driver can be assigned fault in the event of a resulting accident. In the instant case, the trial court granted the signaling driver summary judgment, finding on the facts before it that there could be no liability. We find that summary judgment is not appropriate and accordingly vacate the trial court's judgment and remand for further proceedings.

In the Matter of Ray Allen Smith
E2000-00321-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Frank V. Williams, III
This is a suit by an inmate to have his last name changed to that of his mother's maiden name. Upon the incarcerated Petitioner not appearing when the case was called for trial, it was dismissed. We vacate and remand.

Lavonda Cable vs. Lowe's of Johnson City, Inc.
E2000-01075-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: G. Richard Johnson
Lowe's of Johnson City, Inc., filed a Rule 60 motion seeking to set aside a default judgment rendered against it on the grounds of mistake, inadvertence or excusable neglect. The Trial Court overruled the motion and Lowe's appeals. We affirm.

Curley Howse vs. Donal Campbell, et al
M1999-01580-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Hamilton V. Gayden, Jr.
This is a pro se civil rights action brought by a prisoner challenging the conditions of his confinement and his treatment by employees of the Tennessee Department of Correction and the Northwest Correctional Center in Lake County. After the prisoner's suit was transferred from the Chancery Court for Davidson County to the Circuit Court for Davidson County, the various defendants filed separate motions to dismiss the case for improper venue. The trial court granted the motions and dismissed all the prisoner's claims. On this appeal, the prisoner asserts that his claims should not have been dismissed. We have determined that the prisoner has not properly perfected an appeal with regard to the dismissal of his claims against the Commissioner of Correction and three other employees and that the trial court correctly dismissed his claim against the medical director of the Northwest Correctional Center for improper venue. Accordingly, we affirm the dismissal of the prisoner's complaint.

Joseph Turley vs. Francis P. Marino, et al
M2000-01684-COA-R3-CD
Authoring Judge: Judge William B. Cain
Trial Court Judge: Walter C. Kurtz
Appellant, Joseph Turley, was charged with two counts of criminal contempt by the trial court in an order issued May 3, 2000. The trial court appointed a special prosecutor to pursue this matter and appointed the public defender to represent the appellant. The trial on June 15, 2000 resulted in a trial court finding of guilty, after which the appellant was sentenced to 48 hours in jail. Turley appeals, and we affirm the judgment of the trial court.

Don Williams vs. Donal Campbell
M2000-01821-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Ellen Hobbs Lyle
A prison disciplinary board extended the release eligibility date of an inmate, after finding him guilty of assaulting a guard. He filed a petition for writ of certiorari which challenged the method used by the Department of Correction to calculate his new release eligibility date. The trial court dismissed the petition. We affirm.

Larry W. Hopkins vs. Bd. of Paroles
M2000-01956-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Ellen Hobbs Lyle
This appeal involves a prisoner's efforts to be paroled from his sentence for aggravated rape. After the Tennessee Board of Paroles declined for the sixth time to parole him, the prisoner filed a petition for common-law writ of certiorari in the Chancery Court challenging the Board's latest decision and the procedure used to reach it. The trial court dismissed the petition for failure to state a claim upon which relief could be granted, and the prisoner has appealed. We affirm the trial court's decision.

Betty J. Nash vs. G.L. Waynick
M2000-02096-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: John J. Maddux
This appeal involves a dispute over the sale of a single family home in DeKalb County. The purchaser filed suit in the Circuit Court for DeKalb County alleging that the seller had violated the Tennessee Consumer Protection Act and the Tennessee Residential Property Disclosures Act. More than two years after the first two summonses were returned unserved, the purchaser caused a third summons to be issued that was served on the seller. The trial court entered a $27,000 default judgment against the seller on June 21, 2000, after concluding that the seller had been properly served and had presented no defenses to the purchaser's claims. On this appeal, the seller, who has been representing himself throughout these proceedings, asserts that he did not violate either the Tennessee Consumer Protection Act or the Tennessee Residential Property Disclosure Act and that the trial court erred by not considering his statute of limitations defense. We have determined that the purchaser's suit is time-barred for failure to comply with Tenn. R. Civ. P. 3. Therefore, we reverse the judgment and remand the case with directions that the purchaser's complaint be dismissed.

Dr. Robert Emans v. Board of Regents
M2000-02187-COA-R3-CV
Authoring Judge: Per Curiam
The Claimant was appointed Dean of the College of Education of Tennessee State University in 1990, evidenced by a Notice of Appointment and Agreement of Employment. Four years later, he was terminated as Dean, and appointed to the tenured position of Professor, at a lesser salary. In this action he sought damages for breach of contract, inter alia. The Commission ruled that the Claimant, although lawfully terminated as Dean, was nevertheless entitled to receive the salary of a deanship.

Arthur Armstrong, a/k/a Haki Al-Bey vs. Dept. of Correction, et al
M2000-02328-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Ellen Hobbs Lyle
An inmate who was found guilty of three disciplinary infractions challenged those convictions by filing a Petition for Writ of Certiorari. The trial court dismissed the Petition. We affirm the trial court.

Michael Martin vs. Roderick Scott, et al
M2000-02330-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Irvin H. Kilcrease, Jr.
Michael D. Martin, an incarcerated state prisoner, filed a Petition for Writ of Certiorari challenging a prison disciplinary proceeding whereby he was convicted by the Prison Disciplinary Board of burglary and sentenced to ten days punitive segregation and a $4.00 fine. The Chancellor dismissed the petition and we affirm the Chancellor.

Daniel Taylor v. Donal Campbell, et al.
M2000-02843-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Hamilton V. Gayden, Jr.
On July 3, 2000, Appellant filed his civil complaint based upon punishment imposed for a disciplinary infraction while a prisoner at Turney Center in Only, Tennessee. On July 18, 2000, the trial judge, sua sponte, dismissed the complaint, and this appeal followed. We affirm the trial court.

David Britt vs. Donal Campbell, et al
M2000-01423-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Ellen H. Lyle
A prison inmate escaped from custody and was recaptured. After a disciplinary hearing, the Department of Correction extended his Release Eligibility Date so that he would have to serve an additional 20% of his sentence before being considered for parole. The prisoner filed a Petition for Declaratory Judgment, contending that the Department's action violated statutory and constitutional law. The trial court dismissed the Petition. We affirm.

Eddie Phifer v. Board of Parole
M2000-01509-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen Hobbs Lyle
This is a pro se appeal from a denial of parole. Mr. Phifer alleges several problems surrounding his parole hearing that he claims violate his due process and equal protection rights and violate the ex post facto constitutional prohibition. Because a prisoner has no liberty interest in release on parole before the expiration of his sentence, due process protections do not attach to parole determinations. Because at the time of Mr. Phifer's crime and conviction, the law regarding parole gave total discretion to the Board and authorized denial if the Board found that parole would depreciate the seriousness of the crime committed, changes in Board procedure do not violate ex post facto prohibitions. Because the Board has provided a rational basis for denying in-person interviews for prisoners housed out of state, no equal protection violation was shown. Consequently, we affirm the trial court's dismissal of the petition for failure to state a claim upon which relief may be granted.

Rickey Cotten v. Board of Paroles
M2001-00875-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Walter C. Kurtz
Petitioner was arrested in Florida for grand theft auto while on parole under a sentence in Tennessee. After beginning his sentence on the Florida conviction in a Florida prison, the Petitioner filed a "request for leave to waive revocation hearing, admission to violation of parole and request to have parole hearing in absentia and affidavit" with the Board of Paroles of Tennessee. The Board did not respond, so Petitioner filed a writ of mandamus with the Circuit Court for Davidson County to compel the Board to render a decision regarding his parole revocation. The trial court denied the writ and dismissed the petition because mandamus was not the appropriate remedy and the Petitioner was not in custody of the State of Tennessee for the purposes of parole revocation. We agree and affirm the decision of the trial court.

Bertha Smith vs. Harley Smith
M1998-00937-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol A. Catalano
The issues in this post-divorce case arise because the former husband's waiver of military retirement pay in order to receive disability benefits affected the former wife's receipt of her portion of the retirement pay which had been awarded to her in the distribution of marital property. The former husband reduced his payments to the former wife, who filed a contempt petition, seeking to reinstate the previously ordered amounts. The trial court considered the intent embodied in the divorce decree, and determined that the former wife should continue to receive the amount she received at the time of the divorce, despite the fact that the former husband no longer received "retirement pay." In light of our Supreme Court's holding in Johnson v. Johnson, No. W1999-01232-SC-R11-CV, 2001 WL 173502 (Tenn. Feb. 23, 2001), we affirm.