COURT OF APPEALS OPINIONS

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.

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.

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.

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.

Franklin County, TN vs. The Town of Monteagle, TN, et al
M2000-02453-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Jeffrey F. Stewart
This is an annexation by referendum case. Monteagle is located in Grundy County. Its corporate limits extend to Franklin County. Interested residents of the area sought to be annexed in Franklin County petitioned Monteagle to be annexed. Monteagle adopted a Resolution for the referendum. Nineteen out of twenty eligible voters favored annexation. Franklin County filed a complaint for injunctive relief, which was granted upon a finding that the Resolution was not properly published. Monteagle appealed, but in the interim, adopted another Resolution for a referendum. The voters again favored annexation. The County challenged the second referendum by a Rule 52 motion alleging that Monteagle repealed the Resolution for the second referendum thus making it a nullity.

Melissa Jane (Nichols) Steen vs. Evans Harrington Steen
M2000-00313-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Robert P. Hamilton
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.

Steffone McClendon vs. Dr. Elaine Bunick
E1999-02814-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Dale C. Workman
In this medical malpractice action, Plaintiff appeals the trial court's entry of summary judgment in favor of the Defendant, Dr. Bunick. For the reasons set forth below, we affirm the trial court in all respects.

M2000-02334-COA-R3-CV
M2000-02334-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Leonard W. Martin

Carolyn Marie Leasure White, et al vs. Timothy Wade Moody
M2000-01778-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Carol A. Catalano
This is a suit wherein the Plaintiffs seek a termination of the Defendant father's parental rights and an adoption by the mother's present husband. The Trial Court terminated the father's rights and granted the adoption. We vacate and remand for a determination of the best interest of the child as required by T.C.A. 36-1-113(c)(2).

Norma Tillman vs. Leo Haffey, et al
M2000-02196-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Frank G. Clement, Jr.
Plaintiff filed a complaint on August 30, 1999 alleging a cause of action for malicious prosecution and abuse of process arising out of a suit filed against her by defendants. Plaintiff's cause of action accrued when the defendants, as the plaintiffs in the underlying case, voluntarily dismissed their case on September 14, 1998. When plaintiff filed the complaint, summons was issued by the court clerk, but was retained by plaintiff's counsel and returned unserved. An alias summons was issued on November 1, 1999, and defendants were served November 5, 1999. Defendants filed a motion to dismiss, which was granted by the trial court on the ground that the case was barred by the statute of limitations reasoning that the filing of the suit and retaining the process did not toll the running of the statute of limitations. Plaintiff has appealed. We vacate and remand.

Aubrey Lightford vs. Allen Lightford
W2000-02712-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: D. J. Alissandratos
Husband appeals final decree of divorce presenting issues pertaining to amount of child support and division of marital property. Husband did not file a transcript of the evidence, nor did he file a statement of the evidence. We affirm.

Lindsay, Pamela, & John Taylor vs. Al Beard/Southeastern Freight
W2000-02768-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Robert L. Childers
This case involves the application of the statute of limitations to personal injury claims. The plaintiffs are the parents of a minor child who was injured in an automobile accident with the defendant in October 1995. The plaintiffs reached a settlement agreement with the defendants for compensation of their child's injuries, and the parties filed a joint petition with the trial court to have the settlement approved. For reasons which are unclear in the record, the trial court failed to approve the settlement. In February 1999, the plaintiffs withdrew the joint petition to approve the settlement and substituted a claim for damages on behalf of the minor child as well as the parents. In May 1999, the defendants filed a motion for summary judgment on the individual claims of the parents, arguing that these claims were barred by the one-year statute of limitations. The trial court granted the defendants' summary judgment motion. The plaintiffs appealed. We affirm, finding that the issues raised on appeal were not raised to the trial court and therefore cannot be considered on appeal.

Antonio Sweatt vs. Billy Compton
W2001-00002-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: R. Lee Moore Jr.
This appeal arises from a specialist physician's recommendation that the appellant, an inmate, undergo nasal surgery. The Utilization Review Committee of the Tennessee Department of Correction denied the appellant's recommended surgery. The appellant filed a complaint against the appellees, prison employees of the Lake County Regional Correctional Facility, alleging federal constitutional violations, negligence, and medical malpractice. The appellees filed a motion for summary judgment. The trial court granted the motion for summary judgment. On appeal, this Court reversed the grant of summary judgment in favor of the appellees on the Eighth Amendment claim that arose out of the delay in the recommended surgery and remanded for further discovery. This Court affirmed the grant of summary judgment in favor of the Appellees on all other claims. The trial court permitted the parties to conduct further discovery on the Eighth Amendment claim concerning the delay in the recommended surgery. The trial court granted summary judgment to the appellees. The appellant appeals the trial court's grant of summary judgment in favor of the appellees. For the reasons stated herein, we affirm the trial court's decision.

Clark Earls vs. Shirley Earls
M1999-00035-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Russell Heldman
This extraordinary appeal involves the efforts of one party to effectuate an opinion of this court which the Tennessee Supreme Court declined to review. On the first appeal, this court reversed portions of the trial court's final decree and remanded the case with specific directions regarding the details of the order to be entered. After the Tennessee Supreme Court denied the wife's application for permission to appeal, the husband asked the trial court to enter an order consistent with the directions in this court's opinion. After conducting two hearings, the trial court declined to enter the proposed order. We have granted the husband's application for an extraordinary appeal because the trial court, by its refusal to enter a judgment consistent with this court's opinion, has so far departed from the accepted and usual course of judicial proceedings that immediate review of its actions is required. We now (1) vacate the trial court's orders filed after March 29, 2001, (2) direct the clerk of the trial court to enter this opinion and the order accompanying it as the final order in this proceeding, and (3) direct that this case be assigned to another judge in the Twenty-First Judicial District for any further proceedings.

Linda O'Mary vs. Protech Builders, Inc.
E2000-02539-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Dale C. Workman
The plaintiff, Linda O'Mary, brought this action against the defendant, Protech Builders, Inc., seeking damages for the defendant's alleged faulty construction of an addition to the plaintiff's home. Before trial, the parties entered into a settlement agreement, under the terms of which the defendant agreed to perform certain repairs, including "replac[ing]" any wood in the back wall of the addition showing signs of water damage, and to pay the plaintiff $2,000 in attorney's fees. When the defendant refused to remove several water-damaged studs from the back wall, the plaintiff filed a motion seeking, inter alia, to set the case for a full trial on the merits. The trial court found that the plaintiff was unreasonable in demanding that the water-damaged studs be removed. The court below concluded that the defendant's efforts to perform the repairs, along with its payment of $2,000 to the plaintiff, operated as an accord and satisfaction. The trial court denied the plaintiff's motion and dismissed her complaint. We reverse and remand for further proceedings.

Douglas L. Dutton, Albert J. Harb And Amy v. Hollars, Knoxville, Tennessee, For Appellees.
E2000-02459-C0A-R3-CV
Trial Court Judge: Dale C. Workman

Brian Boyd vs. Bill Berrier, et al
E2000-02546-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jerri S. Bryant
The Plaintiff, Brian Boyd, agreed to purchase three (3) mobile home lots on an installment basis. After nominal down payments he made monthly payments for several months, during which time he received rental income. The contracts provided for forfeiture in the event Mr. Boyd failed to make two (2) consecutive payments or failed to pay the taxes. Mr. Boyd missed four payments, and failed to pay the taxes. He was ordered to quit the property in a detainer action, which was consolidated with a complaint in Chancery for damages for the asserted violation by the assignee of the seller of the Consumer Protection Act. The complaint was dismissed. We affirm.

Holly Paul vs. Thomas Paul
E2000-02161-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: John B. Hagler, Jr.
Holly Lynn Coleman Paul ("Wife") filed a complaint seeking a divorce from Thomas Frazier Paul ("Husband") on the basis of inappropriate marital conduct or, in the alternative, irreconcilable differences. Husband filed a counterclaim seeking a divorce on the ground of inappropriate marital conduct. The Trial Court granted Husband the divorce, divided the marital property which the parties could not divide by agreement prior to trial, awarded custody of the two minor children to Husband, and granted visitation to Wife. Wife appeals challenging the Trial Court's determinations on all of these issues. We affirm as modified.

Mary Costa, Sue Henard, et al vs. James Clayton, LaRue Homes, et al
E2000-02627-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: John F. Weaver
Plaintiffs' action to invalidate an agreement between the defendants to grant an easement as consideration for land was found to be meritorious by the Trial Judge, and plaintiffs were granted summary judgment. On appeal, we affirm.

Kanta Keith, et al vs. Gene Howerton, et al
E2000-02703-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Dale C. Workman
In this appeal from a judgment of the Knox County Circuit Court the Plaintiffs/Appellants, Kanta Keith, Darlene Keith and Walter Jackson, contest the Trial Court's ruling that the Defendants/Appellees, Gene Ervin Howerton and Easy Money, Inc., did not violate the Tennessee Consumer Protection Act of 1977 with respect to pawn transactions entered into with the Plaintiffs. The Plaintiffs also contest the amount of damages awarded by the Trial Court for property belonging to them which was stolen while in possession of the Defendants. We affirm in part as modified, reverse in part, and remand for proceedings not inconsistent with this opinion. We adjudge costs of the appeal against the Defendants, Gene Ervin Howerton and Easy Money, Inc.

Debra Smith vs. EZ Pawn Co., et al
E2000-02741-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: William E. Lantrip
This is a suit by Debra Smith seeking damages against EZ Pawn Company and others because of sexual harassment visited upon her by James Cameron, the owner of the company. The Trial Court found that her claim under the Tennessee Human Rights Act and under the Malicious Harassment Statute were barred by the applicable statute of limitations. We affirm.

Charles Doss et al vs. Grace T. Sawyers
E2000-01745-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jeffrey F. Stewart
This is a suit wherein the Plaintiffs seek to remove a cloud in the form of a purchase agreement from the title of property owned by the Plaintiffs. The Trial Court found that the purchase agreement was invalid because of lack of mental capacity of the then owner, Charles Doss, to sign the agreement, and awarded a judgment in the amount of $6900 to the Defendant for payments made under the agreement. We reverse the judgment of the Court relative to the invalidity of the purchase agreement and, in accordance with the prayer of the counter-complaint, order that the property be conveyed by the Clerk and Master to the Defendant subject to payment of the balance owed on the property as determined upon remand.

The John Lee Co., Inc. v. Lamar Haynes, et al.
M2000-02407-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

The plaintiff, a manufacturers' representative, filed this action for a declaratory judgment that it is not indebted to the defendant for commissions on sales of tee shirts manufactured by Tee Jays Manufacturing Company and sold to Planet Hollywood, in light of the fact that the defendant's sole participation was to arrange a meeting between buyer and seller. The Chancellor found the plaintiff was liable for the commission under a contract theory. We affirm.

In re: Estate of Pauline Maddox
M1998-00925-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Tom E. Gray

This appeal involves the testamentary intent of an 89-year-old widow who died leaving a sizeable estate. After one of the decedent's grandsons, acting as her executor, submitted for probate a February 1991 will and a June 1995 codicil, the decedent's surviving daughter filed a will contest proceeding in the Chancery Court for Sumner County, alleging that the will had been procured by the executor's undue influence and that the distribution of the estate should be governed by a 1989 holographic instrument. Following a bench trial, the trial court upheld the validity of the 1991 will and the 1995 codicil. On this appeal, the decedent's daughter asserts that the trial court erred by determining that the 1991 will and the 1995 codicil expressed the decedent's testamentary wishes rather than the 1989 document. We have determined that the evidence supports the trial court's conclusions and, therefore, affirm the judgment.