COURT OF APPEALS OPINIONS

Jerry Wayne Killion vs. Sandra Faye Sweat
E1999-02634-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Robert M. Summitt
In this post-divorce proceeding, the father of Dustin Lynn Killion filed a petition seeking the child's custody. The trial court denied the father's petition. The father appeals the trial court's determination that the proof fails to demonstrate a material change of circumstances warranting a change of custody. We reverse.

Brenda D. Estes, et al vs. Sandra H. Peels, et al
E1999-00582-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Ben W. Hooper, II
This case arises out of a motor vehicle accident that occurred when a vehicle exited a manufacturing plant's parking lot and collided with the plaintiff's vehicle on a public highway. Brenda D. Estes and her husband sued the owner of the plant for negligence. The trial court granted the plant owner summary judgment. We hold that, under the circumstances of this case, the plant owner did not owe a duty of care to the plaintiff and therefore affirm the grant of summary judgment.

Wilson Pharmacy, Inc., vs. General Computer Corp.
E2000-00733-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Thomas J. Seeley, Jr.
The origin of this appeal is a complaint filed by Plaintiff Wilson Pharmacy, Inc., against Defendant General Computer Corporation, seeking damages for allegedly furnishing defective computer hardware and software programs pursuant to contracts entered into between the parties. The Trial Court found that the provision providing suit must be brought within one year after accrual of the action barred Wilson Pharmacy's claim. Wilson Pharmacy appeals, contending the contract they entered into was one of adhesion, rendering the contract limitation period ineffective. We affirm.

Betty L. Fox vs. Food Lion, Inc., Store #539
E1911-00015-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Harold Wimberly
Betty L. Fox sued Food Lion, Inc., Store #539, seeking damages for personal injuries sustained when she fell in an aisle of the defendant's store. The trial court approved the jury's verdict for the plaintiff and entered judgment in her favor for $112,000. The defendant appeals, raising three issues, which we restate as follows: (1) whether there is material evidence that the defendant had actual or constructive notice of the allegedly dangerous condition that caused the plaintiff's fall; (2) whether the defendant owed a duty of care to the plaintiff; and (3) whether there is material evidence to support the jury's allocation of fault. We affirm.

Cunningham vs. Cunningham
W1999-02054-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Joe C. Morris
This appeal involves a divorce after seven years of marriage. The trial court granted the wife a divorce, divided the property, awarded the wife rehabilitative alimony and alimony in solido, awarded child support for the parties' minor child, established an educational trust fund, and ordered the husband to maintain life insurance for so long as he is obligated to pay child support. On appeal, husband takes issue with all of the above and also raises the constitutionality of the child support guidelines. In addition, wife takes issue with the failure of the trial court to award her litigation expenses. We have determined that the trial court's judgment should be affirmed in part, reversed in part and remanded.

American Indemnity vs. Foy Trailer
W2000-00397-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: D. J. Alissandratos
American Indemnity Company sought a declaratory judgment that its commercial general liability (CGL) policy did not cover claims made by Ms. Johnson against the Appellants in her federal court complaint and that it did not have a duty to defend Appellants in the federal action. The Chancery Court for Shelby County held that there was no coverage and no duty to defend. Appellants appealed. We affirm.

Matter of Fannie Barnhill
W2000-00289-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Martha B. Brasfield
Will contestant voluntarily dismissed chancery court proceeding to contest will. Subsequently, contestant filed another notice to contest the will. The trial court, on motion, dismissed the proceeding as barred, because it had previously been dismissed, and such an action is within an exception to Tenn.R.Civ.P. 41.01 (1). Contestant has appealed.

Denley Rentals vs. Howard Etheridge
W2000-00189-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: D. J. Alissandratos
This case involves the assignability of a chose in action. The plaintiffs are two related limited liability companies and the person who was the owner/manager of both. The owner/manager contracted to purchase real property from the defendants, and later assigned his interest under the contract to one of the limited liability companies. The first limited liability company closed the transaction with the defendants. After the transaction was closed, the first company discovered a landfill located on the property that had not been disclosed by the defendants. The first company then transferred the property to the second limited liability company for de minimis consideration. The owner/manager of both companies made a "mental assignment" of the chose in action from the first company to the second company, and the second company incurred the cost of clearing the landfill debris. The plaintiffs jointly sued the defendants for breach of contract, fraud, and misrepresentation. The trial court dismissed the suit, holding that there was not a valid assignment of the chose in action, that the first company was precluded from recovery because it suffered no damages, and that the second company was precluded from recovery because it took the property with full knowledge of the defect. On appeal, we reverse and remand, finding that the chose in action was validly assigned.

The Pointe vs. Lake Mgmt.
W2000-00211-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Walter L. Evans
This appeal arises from a declaratory judgment action to determine rights in a privately-owned lake. Plaintiffs purchased land adjacent to the artificially-created lake for the purpose of developing residential lots. Subsequent to the sale of the property, Plaintiffs' grantor conveyed title to the lake to Defendant. Defendant claims it has the right to control use of the lake and that Plaintiffs have no right to lake access without Defendant's permission. The trial court granted Defendant's motion for summary judgment on the grounds that: (1) the lake is unnavigable, and no riparian rights can therefore flow to adjoining landowners; (2) the Defendant, as owner of the land subjacent to the lake, has a right to the unimpeded use and control of the property; and (3) any use of the lake by the adjoining property owners without Defendant's consent would constitute a trespass. Plaintiffs appeal.

Scott Yother vs. Laine Yother
E2000-01046-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jacqueline E. Schulten
In this post-divorce case, Elaine Hines Yother ("Mother") appeals from an order awarding primary residential custody of the parties' minor child, Avery Raechelle Yother (DOB: April 2, 1995), to the child's father, Scott Christopher Yother ("Father"). Mother argues (1) that the trial court lacked subject matter jurisdiction to modify the custodial arrangement decreed in the parties' divorce judgment; and, alternatively, (2) that the evidence preponderates against the trial court's judgment changing custody. Because we find that the trial court lacked subject matter jurisdiction to address the issue of custody, we reverse the judgment below.

Edward F. Curtis vs. Stephen T. Nash, et al
E1999-01135-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Dale C. Workman
This appeal arises in the Knox County Circuit Court from a grant of a motion for summary judgment. Edward F. Curtis appeals the grant of summary judgment. We affirm the judgment of the Trial Court and remand for such further proceedings as may be necessary consistent with this opinion. We adjudge costs of appeal against Mr. Curtis and his surety.

E1999-01909-R3-CV
E1999-01909-R3-CV
Trial Court Judge: James B. Scott, Jr.

Jerry Wayne Terry vs. Donna Brazier Terry
E2000-00825-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Steven C. Douglas
This appeal from the Cumberland County Probate and Family Court concerns whether the Trial Court erred in making an equitable division of the marital estate of Jerry Wayne Terry, the Appellant, and Donna Brazier Terry, the Appellee. We affirm the judgment of the Trial Court and remand for such further proceedings as may be necessary. We adjudge costs of appeal against Mr. Terry and his surety.

Whittington-Barrett vs. Johnson
E2000-00700-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jean A. Stanley
This is a suit between two inmates of the State of Tennessee. The Plaintiff, a transsexual, seeks a declaratory judgment "to establish the rights of the Plaintiff," and damages, attorney fees and costs against the Defendant because of sexual harassment. The cause of action alleges violation of various sections of the Constitutions of the State of Tennessee and the United States of America and of the Civil Rights Act of 1964. The Trial Judge dismissed the complaint because there was "no claim of state action in Plaintiff's complaint, nor is this an employer/employee situation." We affirm.

Kenneth L. Storey vs. David J. Poss
E1999-00192-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Daryl R. Fansler
Plaintiff/Appellant is an inmate at West Tennessee High Security Prison in Hennig, Tennessee, pursuant to a conviction for aggravated rape. Defendant, a Tennessee attorney, was appointed by the General Sessions Court to represent Plaintiff at a preliminary hearing on that charge. After that hearing, Plaintiff was bound over to the grand jury for trial. Plaintiff asked the Criminal Court to dismiss Defendant as his counsel and to appoint another attorney. The Criminal Court granted Plaintiff's request and appointed new counsel on April 18, 1996. On August 29, 1997, Plaintiff filed this legal malpractice action against Defendant in Chancery Court asking for damages of $730,000. Defendant filed a Motion for Summary Judgment asserting that there are no genuine issues of material fact and that the one-year statute of limitations for attorney malpractice claims bars Plaintiff's claim. The Chancellor granted Defendant's Motion for Summary Judgment and dismissed Plaintiff's Complaint. We affirm.

Taylor Mehrhoff Co.
W1999-00413-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Dewey C. Whitenton
Plaintiffs, Landowners, sued adjoining landowners, seeking a judgment determining the location of a disputed boundary line. The trial court found that Defendants had: (1) established record title to the disputed property; (2) established the boundary line in recorded deeds and trust deeds, and by the conduct, implied agreement, acquiescence and recognition of adjoining property owners; and (3) proven title by adverse possession of the disputed property. Plaintiffs-Landowners have appealed.

Trau-Med vs. Allstate
W1999-01524-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Robert L. Childers
Plaintiff medical clinic filed a complaint against an insurance company and several of its employees alleging, inter alia, that the defendants tortiously interfered with their business relationship, that the attorneys supplied by the insurance company to represent its insured were guilty of abuse of process and that the defendants conspired to destroy plaintiff's reputation in business. The trial court dismissed the complaint for failure to state a claim upon which relief can be granted. Plaintiff has appealed.

Meredith Warren vs. John Warren
W1999-02108-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Walter L. Evans
In this child custody case, the Appellant and the Appellee agreed to joint custody of their child with the Appellee being the primary custodial parent. After learning of the Appellee's plans to move out of state with the child, the Appellant filed a Petition for Opposition of Minor Child's Move from the State of Tennessee and/or Petition for Change of Custody. The trial court granted temporary custody to the Appellant pending a reevaluation of the matter. After a hearing, the trial court ordered joint custody of the child to the Appellant and the Appellee and decreed that the child live primarily with the Appellee out of state.

Donnie Johnson vs. Centex
W2000-00072-COA-R9-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: William B. Acree
This appeal arises from an injury by Worker who fell through a hole in the roof while working on a construction site. Worker brought suit against the Owner, the General Contractor and Builder, who through its construction of precast concrete panels had created the hole. The trial court granted Owner and General Contractor summary judgment on the basis that both were acting in the capacity of a general contractor and were thus exempt from suit under the workers' compensation statutes. Builder, even through it no longer had control of the area where Worker was injured, was denied summary judgment on the basis that OSHA regulations created a non-delegable duty to prevent injuries. We affirm the trial court's granting of summary judgment to Owner and General Contractor. We reverse the trial court's denial of summary judgment for Builder, finding that OSHA regulations do not create a duty for Builder.

James Rainey vs. Leslie Head
W2000-00504-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: George E. Blancett
This is a case involving termination of parental rights. The Appellant executed a consent order terminating his parental rights to his child. Asserting that he executed the order under influence and duress by the Appellee and her family, the Appellant then filed a Petition to Vacate Order Terminating Parental Rights. The Juvenile Court of Shelby County dismissed the Appellant's Petition.

Stanley Kline vs. William Benefiel
W1999-00918-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Jon Kerry Blackwood
This case arises from a home construction contract entered into by the Appellants and the Appellees. The Appellants filed a complaint against the Appellees in the Circuit Court of Shelby County for breach of contract. The Appellees filed a counter-complaint for breach of contract and unjust enrichment. The Appellants filed an amended complaint for violations of the Tennessee Consumer Protection Act. The trial court dismissed the Appellees' counter-complaint and found in favor of the Appellees as to the Appellants' complaint. The Appellants appeal from the order of the Circuit Court of Shelby County, finding in favor of the Appellees. For the reasons stated herein, we affirm the trial court's decision.

W1999-01828-COA-R3-CV
W1999-01828-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: George R. Ellis

Elizabeth Cates vs. Herbert Cates
W1999-02359-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Martha B. Brasfield
This is a divorce dispute. Prior to divorce, the wife left the marital home, taking some of the parties' joint cash savings. On the day of the divorce hearing, the husband stipulated as to his inappropriate marital conduct, and the divorce was granted to the wife on that ground. The wife was awarded approximately 51% of the marital estate, rehabilitative alimony, and attorney's fees. The trial court excluded from its division of marital property the money the wife took when she moved out. The husband appeals. We affirm.

Rhonda Moffitt vs. Paul Moffitt
W1999-02403-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Joe C. Morris
In this divorce case, Husband appeals the trial court's final decree as it deals with the division of marital property, the division of marital debt (including crediting Wife for monies spent prior to the sale of the marital home), and child support arrearages. We affirm.

Rain/Hail Ins. vs. James Peeler
W1999-01962-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Joseph H. Walker, III
This is a suit for the recovery of an insurance premium. The Appellant brought a complaint against the Appellee in the Circuit Court of Tipton County, seeking to recover the premium it claimed was due pursuant to a clause in the insurance policy. Both the Appellant and the Appellee brought motions for summary judgment. The trial court dismissed the Appellant's complaint and granted the Appellee's motion for summary judgment. The Appellant appeals the decision of the Circuit Court of Tipton County dismissing the Appellant's complaint and granting the Appellee's motion for summary judgment. For the reasons stated herein, we affirm the trial court's decision.