COURT OF APPEALS OPINIONS

Carl D. Clark, v. Roger D. Lemley, et ux.
M1999-01271-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor W. Charles Lee

This case arises from a dispute between neighbors over the use of an old road which connected Appellant's landlocked farm to a public roadway. The road crossed Appellees' property. After Appellees erected a locked gate across the old road, Appellant sought injunctive relief to permit access to the old road. After a trial, the court found that the old road was never a public road and that no prescriptive easement existed. The court declined to provide the requested relief. Because the evidence does not preponderate against the trial court's findings, we affirm.

Arthur Blair vs. Marilyn Badenhope
E1999-02748-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor Thomas R. Frierson, II

Arthur Blair ("Father") petitioned the Trial Court to modify a prior custody decree entered by a North Carolina court. Marilyn Badenhope, the child's maternal grandmother, has had custody of the child since the child's infancy. This is Father's second attempt in the Tennessee courts to obtain a modification of the North Carolina decree. In this suit, the Trial Court denied Father's petition, holding that Father failed to show that a material change in circumstances had occurred such that substantial harm to the child would not result if Father was awarded custody. Father appeals and contends that the Trial Court erroneously found no showing of a material change in circumstances and that substantial harm would result to the child if the child was placed in Father's custody. The grandmother does not dispute the Trial Court's ultimate decision, but she contends that the Trial Court only had to inquire as to whether a material change of circumstances had occurred and did not have to determine whether substantial harm would result to the child if custody was changed. We affirm.

Paula Sue Gilbert Brownyard, v. Robert Michael Brownyard
02A01-9803-CH-00063
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Chancellor Joe C. Morris

This is a post-divorce action based on a petition for contempt and an accounting for delinquent alimony and child support. The trial court found the father in contempt, and granted the mother past due alimony and child support, attorney fees, and amounts owed for college expenses for the parties’ child. The father appealed to this Court. We affirm in part, reverse in part, modify, and remand.

Gregory Domincovitch v. Wilson County Board of Zoning Appeals
M1999-02334-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor C. K. Smith

Petitioner/Appellant, Gregory Domincovitch ("Petitioner") made a request to the Wilson County Board of Zoning Appeals for a "use permissible on appeal" to establish a 250 foot communication tower on his A-1 zoned property. Defendant/Appellee, Wilson County Board of Zoning Appeals ("the Board") denied this request. Mr. Domincovitch petitioned for Writ of Certiorari to the chancery court and subsequently filed a Motion for Summary Judgment in that court. The chancellor granted Petitioner's Motion for Summary Judgment finding that the Board did not have jurisdiction to deny the permit for construction of the communications tower. The Board appealed the chancery court's decision. We affirm the chancery court's ruling finding that Petitioner had presented evidence fulfilling all requirements set out in Wilson County's zoning ordinance regarding cell tower location, and thus, the Board had no jurisdiction to deny the permit to Petitioner.

Edmond Brothers Supply Company, Inc., v. Boyle and Adams et al.
E1999-027310COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor John S. McLellan, III

Edmond Brothers Supply Company, Inc. (“Plaintiff”), a building materials supplier, sold materials to a contractor for use in a construction project for Bristol Regional Women’s Center, P.C., (“Defendant”). Plaintiff did not send statements to Defendant because the contractor instructed Plaintiff not to bill Defendant. When the project was completed, the contractor took the Plaintiff’s final bill to Defendant for payment. Defendant’s office manager sent a check in full payment to Plaintiff, but Defendant stopped payment on the check and refused to pay the bill. Plaintiff brought
suit against Defendant, individual defendants, and a partnership to enforce a materialmen’s lien for the outstanding debt. All defendants denied enforceability of the lien. The Trial Court dismissed the action to enforce the materialmen’s lien, dismissed the action against the individual defendants and the partnership, and granted judgment to Plaintiff against Defendant on an agency theory. The Trial Court found that the contractor had authority to make the purchases for Defendant and that since Defendant had used the materials in its building, Defendant was obligated to pay for them, despite its instruction to the contractor not to charge any materials for the project. Defendant appeals this judgment. We hold that the contractor had no actual, implied, apparent, or ostensible authority to charge building materials to Defendant. We reverse the judgment of the Trial Court, and dismiss the Complaint against Defendant. Tenn. R. App. Rule 3; Judgment of the Trial Court Reversed; Case Remanded.
 

C.M.Reagan, v. Ima J. Connelly, et al.
E2000-00451-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor W. Frank Brown, III

C.M. Reagan filed this action seeking to collect a money judgment previously obtained against the defendant Dan Connelly ("Connelly"), which judgment was based upon Connelly's guaranty of a note executed by his brother-in-law. Following a bench trial, the court below found that Connelly had fraudulently conveyed three pieces of real property to the defendant corporation, Dan Connelly, Inc. ("the Corporation"). With respect to a fourth piece of property, the trial court found that its transfer to the Corporation was not fraudulent. The trial court, however, went on to disregard the separate identity of the Corporation and find that 96% of the value of the fourth piece of property was available to satisfy the underlying judgment. This determination was based upon the trial court's finding that Connelly owned that percentage of the Corporation's stock. The Corporation and its record shareholders appeal. We affirm in part and reverse in part.

James Roden, et al., v. Clark Heck, Sr., et al.
E2000-00969-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor W. Frank Brown, III

This case involves a chicken -- more specifically a rooster -- that allegedly ran "afoul" of the law. James Roden and his wife, Janet Roden, brought this action against their neighbors, Clark Heck, Sr., and Clark Heck, Jr., after Mr. Roden was injured by a chicken that had escaped from the defendants' property. The trial court granted the defendants summary judgment. We affirm.

William Davidson v. Richard Holtzman, et al.
E2000-01091-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Frank Brown, III

The jury awarded the plaintiff, William Davidson, damages for breach of two oral contracts between Davidson and his former employer, the defendant Richard Holtzman, who, at the time the contracts were made, was the sole shareholder of the defendant Engel Stadium Corporation ("the Corporation"). Defendants appeal, arguing (1) that one of the agreements is barred by the Statute of Frauds; (2) that the same agreement is too indefinite to be enforced; and (3) that the trial court erred in admitting the testimony of another former employee of Holtzman. We affirm.

Jim Hockaday v. Dennis Freels
E1999-02719-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Frank V. Williams, III

This is an action for conversion of a $10,169.59 check. Responding to the plaintiff's allegations, the defendant claimed he had authority to negotiate the check because he and the plaintiff had orally entered into a partnership or joint venture. Following a bench trial, the court below found that no such relationship existed and that the defendant had wrongfully converted the check. We affirm.

William A. Dalton v. Gerald Dale
M2002-01205-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Barbara N. Haynes
Defendant appeals adverse summary judgment as to diminution in value of a 1995 Jaguar XJ6 automobile based upon alleged undisputed expert testimony. Judgment is reversed, and the case is remanded.

Cecilia Hutcheson v. Andrew Hutcheson
M2000-00894-COA-R3-CV
Authoring Judge: Per Curiam
Before these parties were married, Husband earned $60,000.00 per year as an independent insurance agent. Wife earned $50,000.00 yearly as a registered nurse. After their marriage in 1986, Husband never earned more than $10,000.00 yearly. Wife became disabled in 1997 and thereafter received social security benefits. She was awarded alimony of $150.00 weekly upon a finding that Husband was reasonably capable of earning an income from which he could pay this amount. He disagrees. We affirm.

Johnnie Roberts vs. Carl England
M1999-02688-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Vernon Neal
This is an appeal from a bench trial involving a boundary dispute between the parties. Testimony of the parties, other witnesses, the deeds, and the surveys of each party's surveyor were admitted into evidence. Considering all of the testimony and documentation submitted, the trial court held that the boundary as stated by the plaintiff's surveyor was the proper boundary. The sole issue on appeal is whether the plaintiff failed to join a third party adjoining land owner as an indispensable and necessary party, thereby resulting in the failure of the trial court to properly resolve fully and completely the dispute. For the reasons below, we vacate the judgment of the trial court and remand.

Ronald Davis vs. Robert Sanders, et al
M2000-01600-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Stella L. Hargrove
A prisoner filed a petition under the Public Records Act, asking the court to order a prosecutor and a police chief to send him their files on his case. The prosecutor claimed that he had in fact sent a copy of the requested files to the petitioner. The trial court dismissed the petition. We reverse.

City of Chattanooga vs. Kevin Davis
E2000-00664-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Douglas A. Meyer

City of Chattanooga vs. Kevin Davis
E2000-00664-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Douglas A. Meyer

City of Chattanooga v. Kevin Davis
2000-00664-COA-R3-CV
Trial Court Judge: Douglas A. Meyer

Cheryl N. Buckner, et al vs. David F. Hassell, M.D., et al
E1999-02564-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Dale C. Workman
Ronald L. Buckner was diagnosed with a rare form of melanoma which ultimately resulted in his death. His wife, Cheryl N. Buckner, brought this medical malpractice action against her husband's family physician, Dr. David F. Hassell. The Trial Court excluded portions of the testimony of Mr. Buckner's dermatologist and dermatopathologist due to Ms. Buckner's failure to name these physicians as expert witnesses in her answers to interrogatories pursuant to Tenn. R. Civ. P. 26. The jury returned a verdict in favor of Dr. Hassell, and thereafter, Ms. Buckner filed a Motion for New Trial based upon the weight of the evidence and the Trial Court's exclusion of the dermatologist's testimony regarding the standard of care. The Trial Court denied the Motion. On appeal, Ms. Buckner contends that the Trial Court erred in excluding the testimony at issue because Dr. Hassell did not suffer any prejudice from these physicians not having been identified as expert witnesses in Plaintiff's answers to interrogatories as his attorney was aware of the dermatologist's opinions prior to his deposition for proof, and because each of these treating physicians whose testimony was excluded was not a Rule 26 expert witness. We affirm.

E2060-00255-COA-R3-CV
E2060-00255-COA-R3-CV
Trial Court Judge: John B. Hagler, Jr.

Dunlap vs. Fortress Corp. and Covenant Health
E2000-00103-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Harold Wimberly
Plaintiff's action for personal injuries sustained at defendant's fitness center was dismissed by the Trial Court because plaintiff's agreement with the center contained an exculpatory clause. We vacate the Judgment.

Roy R. Ferguson v. Sherry Hoppe, Donna Pierce, and Harold L. Underwood
03A01-9902-CV-00038
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Judge Russell Simmons, Jr.

In this action, the Trial Court dismissed the plaintiff’s complaint, and he has appealed.

Rackley vs. DeKalb Co. Fire Dept.
M2000-00885-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: John A. Turnbull
A purchaser of real property invited the DeKalb County Volunteer Fire Department to burn down a house on the property for training purposes. After the house was destroyed, the seller re-took possession of the property, because the buyer failed to pay the rest of the purchase price. The seller brought suit against the County for inverse condemnation and trespass. The trial court dismissed the complaint. We affirm.

Hunt vs. Claybrooks, et al
M1999-01582-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Walter C. Kurtz
This litigation began as a pro bono case. Defendant/Appellant James Goodner ("Goodner") represented himself pro se on October 22, 1997 at the General Sessions Court and received a judgment against him. Goodner timely appealed the decision to the Circuit Court. Plaintiff/Appellee Allie Mae Hunt ("Hunt") died after the case was appealed from the General Sessions Court to the Circuit Court for Davidson County, Tennessee. Thereafter, the trial court dismissed Goodner's appeal and this case took on a different character. David E. Danner ("Danner") filed a Rule 60.02 motion to get the case reinstated, allegedly accusing Hunt's attorney, C. Bennett Harrison ("Harrison") of "fraud, misrepresentation or other misconduct." Harrison filed a response to the motion containing a motion for Rule 11 sanctions against Danner. Subsequently, Danner asked for sanctions against Harrison, which were denied. Hunt's case was reinstated, but the trial court ordered Danner to pay attorney fees of $100 to Harrison as a sanction of Rule 11. We affirm and modify the trial court's decision.

Madu vs. Madu
M1999-02302-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Muriel Robinson
This appeal involves the dissolution of a three-year marriage between a naturalized citizen and a foreign national attending school on a temporary student visa. Soon after the parties were divorced by agreement in the Circuit Court for Davidson County, the foreign national sought to set the divorce aside because of its effect on her efforts to remain in the United States. The trial court declined to set the divorce aside. The foreign national asserts on this appeal that the trial court should not have declared the parties divorced and that the trial court erred by denying her motion for a new trial based on newly discovered evidence. We have determined that the record supports the trial court's decision to declare the parties divorced and that the trial court did not err when it denied the foreign national's post-trial motion. Accordingly, we affirm the judgment.

Blumberg vs. Dept. of Human Svcs.
M2000-00237-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Tom E. Gray
Frederic Blumberg ("Blumberg") filed a petition against his wife in the Sumner County Circuit Court, seeking all his wife's marital assets and an increase in his minimum monthly maintenance needs allowance. On September 16, 1998, the Sumner County Circuit Court issued an Order requiring Mrs. Blumberg to pay as support for the benefit of Mr. Blumberg, all of her monthly income. Subsequently, Blumberg applied for Medicaid benefits on behalf of Mrs. Blumberg, administered by the Tennessee Department of Human Services ("DHS"), for which he was approved. On October 26, 1998, Blumberg received notice from DHS that his request for an income allocation was denied. Thereafter, Blumberg requested an administrative hearing appealing the denial of spousal allocations. On December 8, 1998, an administrative hearing with DHS was held, and Blumberg's appeal was denied. The Chancery Court affirmed the decision of the DHS, finding that the support order was not validly adjudicated because of lack of notice to DHS. This appeal followed.

Maelene Fowler vs. Jerry Wilbanks
W2000-00452-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Dewey C. Whitenton
Plaintiffs sued to enjoin Defendant from denying their right to use a private dirt and gravel road on Defendant's property in order to access their property. The trial court held that Plaintiffs established an easement by implication and/or prescription in the private road, and enjoined Defendant from preventing Plaintiffs' future access to the road. Defendant appeals.