COURT OF APPEALS OPINIONS

William Fleming vs. Leatha Fleming
W1999-01978-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Karen R. Williams
This appeal involves the division of marital property and award of alimony in futuro in an action for divorce. Husband receives retirement income from the United States Army. Wife has an annuity through her employer which accrued during the parties' marriage. The circuit court awarded Wife $150 a month as alimony in futuro, but ruled that the parties should keep their retirement accounts as separate property. Husband has appealed, and both parties present issues for review.

Russell Graves vs. Kraft Foods
W1999-02010-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: L. Terry Lafferty
This appeal arises from an appeal made from general sessions court to chancery court. The appellee, Kraft General Foods (Kraft), appealed a general sessions judgment to chancery court. Appellants, Mr. Graves and Ms. Cross, filed motions to dismiss, while Kraft filed a motion to transfer to circuit court. The chancery court denied the motions to dismiss and granted the motion to transfer. On review, we find that the chancery court lacked any subject matter jurisdiction over the appeal. In addition, we find no statutory authority providing for chancery court to transfer such appeals. As such, Kraft did not make a timely appeal of the general sessions judgment. The circuit court's denial of the motions to dismiss is reversed.

Mickey Billinsley vs. Diane Billingsley
W1999-00338-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: William Michael Maloan
This case concerns a husband's efforts to terminate his obligation to pay his ex-wife $216.67 per month in alimony in futuro because of the post-divorce increase in his former wife's income. The trial court denied the husband's petition, finding that there had not been a change in circumstances sufficient to warrant the termination of the spousal support obligation. We affirm.

William Crawford vs. Gregory Dodson
W1998-00805-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: C. Neal Small
This is a boundary line dispute. The defendants appeal a jury verdict finding that the boundary line was situated where the plaintiffs had maintained. The defendants assert that the trial court erred in denying their motion for judgment notwithstanding the verdict, and also appeal several other rulings by the trial court. We affirm the trial court, except to remand for modification of the trial court's award of discretionary costs to the plaintiff.

Shirley Williams vs. Donald Thrailkill
W1999-01032-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: William A. Peeler
This case involves visitation rights for an aunt of the minor child. In 1992, the aunt and her husband were granted visitation rights by the Shelby County Juvenile Court. In 1997, after the child's father had moved with the child to Tipton County, the aunt and her husband filed a petition in the Tipton County Juvenile Court to hold father in contempt for failing to abide by the visitation order, to change custody, and alternatively to enforce visitation. After an evidentiary hearing, the Tipton County Juvenile Court held that the prior Shelby County Juvenile Court order granting visitation to aunt was in full force and effect and incorporated the Shelby County order and its order by reference. Father has appealed.

Shelia Rae Gibbs, et al. v. Robin Media Group, et al. v. Lineberry Properties, Inc.
M1999-00820-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Clara W. Byrd

This appeal arises from a slip-and-fall accident which occurred on property owned by the Defendant Lineberry Properties and leased by the Defendant Robin Media Group. The latter appeals from the jury verdict entered in the Wilson County Circuit Court. The jury assigned one hundred percent of the fault for the Plaintiff's injuries to Robin Media. After the court denied its motions for remittitur or a new trial, the present appeal arose.

Baggett vs. Baggett
M1999-00742-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Allen W. Wallace
This is a divorce case involving child custody. After awarding the mother temporary custody of the parties' children during the pendency of the case, the trial court granted the father sole custody and granted the mother visitation. The mother appealed the custody award. We affirm.

Colbaugh vs. Colbaugh
M1999-00755-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Stella L. Hargrove
This is a post-divorce visitation case. The mother and father lived with their infant child in Columbia, Tennessee. After the couple separated, the mother took the parties' child to her hometown of Bowling Green, Kentucky, over one hundred miles from Columbia. Upon the parties' divorce, the trial court awarded custody of the child to the mother and visitation to the father for twelve days each month, no greater than fourteen days apart. The trial court ordered the mother and father to meet halfway between their two residences to exchange the child for the father's visitation. The mother appealed the trial court's visitation schedule, arguing that it adversely affects the child's sense of stability, that it places overly burdensome travel requirements on the mother and the child, and that it is unworkable in this case because of the mother and father's inability to cooperate. We affirm.

Wilson vs. Tittle
M2000-00115-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Arthur E. Mcclellan
This is a child custody case. The mother and father, who were never married, had a child in Tennessee. The mother subsequently married another man and filed petitions in a Tennessee court to establish paternity of the child and for adoption by the stepfather. During the pendency of the suit, the mother and stepfather moved with the child to Texas. The Tennessee court awarded custody of the child to the mother but denied the mother's petition for adoption. The court awarded the father visitation. Later, the father filed petitions in the Tennessee court for contempt and for change of custody, arguing that the mother had refused to allow him visitation. Mother subsequently filed a petition in a Texas court to modify the Tennessee court's prior order. The Tennessee court found that the mother's denial of the father's visitation rights was a substantial change of circumstances and that the best interests of the child favored an award of custody to the father. The mother appeals. We affirm.

Tennessee Pine vs. David/Patty Via
W1999-00558-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Joe C. Morris
A timber company filed a declaratory judgment suit to determine its rights and to declare its contract with a landowner valid and enforceable. The trial court modified the contract and declared the contract as modified valid and enforceable. The landowner has appealed and presents the sole issue for review as whether the trial court erred in not holding the contract unenforceable because of laches.

Susan/Donald Smytka vs. Dayton-Hudson
W1999-01751-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert A. Lanier
This appeal arises out of a complaint for personal injuries sustained when the Plaintiff was struck by a shopping cart in the parking lot of the Defendant's store. The Defendant filed a motion for summary judgment arguing that it did not violate the duty of care owed to the Plaintiff. The trial court granted the motion and entered judgment accordingly.

Gary Wayne Robertson vs. Lori Vanhooser Robertson
E2000-01698-COA-RM-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: W. Neil Thomas, III
The Supreme Court granted Mr. Robertson's application for permission to appeal and remanded this case to us "for reconsideration in light of Crabtree vs. Crabtree [16 S.W.3d 356 (Tenn. 2000)]." Upon reconsideration, we adhere to our original opinion.

Underground, Inc., d/b/a The Underground, vs. City of Knoxville
E2000-00609-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Daryl R. Fansler
The Beer Board summarily suspended Petitioner's licence to sell beer and following a hearing, revoked the permit. On appeal to Chancery Court, the Chancellor upheld the revocation. We affirm.

Darlene Versa v. Policy Studies, Inc.
E2000-00030-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Lawrence H. Puckett

John B. Tigrett v. Union Planters Bank
W1999-01771-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Robert L. Childers

Gretchen Bish vs. Sofamor
W1998-00373-COA-R9-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: John R. Mccarroll, Jr.
These are consolidated interlocutory appeals of products liability suits against the manufacturers of spinal fixation devices. The trial court dismissed plaintiffs' negligence per se claims based on the alleged violation of the Food, Drug and Cosmetics Act (FDCA) and the Medical Device Amendments (MDA). In one of the cases, the trial court also granted defendants' motion in limine to exclude all Federal Drug Administration (FDA) regulatory evidence information and documents concerning the fixation devices. Plaintiffs appeal the rulings of the trial court.

Sarah Anita James vs. Susan Kay Swindell
E1999-02407-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: L. Marie Williams
This appeal arises out of an automobile accident. The Defendant lost control of her vehicle, crossed three lanes of traffic, and hit Plaintiff's vehicle. Plaintiff suffered injuries and sued Defendant for damages. A jury trial ensued. The jury found Defendant to be 100% at fault and awarded $15,000 in damages to Plaintiff. The Plaintiff filed a motion for a new trial alleging juror misconduct and presented a juror's affidavit in support of her position. The Defendant untimely presented counter affidavits by jurors. The trial court judge granted a new trial based on juror misconduct. At the second trial the jury found the Defendant 100% at fault and awarded Plaintiff $27,608.60 in damages. On appeal, the Defendant claims that the trial court erred in failing to grant Defendant's motion for a directed verdict and in granting a new trial. We affirm the trial court's denial of a directed verdict for the Defendant and reverse the trial court's granting of a new trial based on juror misconduct. We remand the case to the trial court for the reinstatement of the jury verdict at the first trial.

State ex rel Cihlar vs. Crawford
M1999-00517-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Betty Adams Green
This appeal involves Thomas Matthew Cihlar's second attempt to obtain a judicial declaration that he is the father of a child whose mother was married to another man when the child was born. On this appeal, the estranged husband of the child's biological mother asserts that Mr. Cihlar's petition to establish parentage was foreclosed by Evans vs. Steelman. We have determined that the current parentage statutes are constitutional and that they authorize not only Mr. Cihlar, but also the State and Mr. Cihlar's child, to file an action to establish Mr. Cihlar's paternity. Accordingly, we affirm the juvenile court.

Lawson vs. Lawson
M2000-00729-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Samuel E. Benningfield
The General Sessions Court of Van Buren County awarded the wife a divorce, divided the marital property, and awarded the wife rehabilitative alimony. On appeal the husband attacks the property division and the amount of the alimony. Because the record does not provide a basis for properly assessing the issues raised by the appellant, we affirm with a memorandum opinion.

Johnson vs. Traughber
M1999-02472-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Mccoy
Appellant, Edward Johnson, is an inmate in the Tennessee Department of Corrections, and in this case, he has filed a Petition for Common Law Certiorari to review a denial of parole by the Board of Paroles. The Chancery Court of Davidson County sustained a motion to dismiss his petition, and we affirm the judgment of the Chancellor.

Goggin Truck Line Co. vs. Brake Pro
M1999-01277-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Lee Russell
This appeal arises from a breach of contract case initiated by Goggin Truck Line Company, Inc. ("Goggin") against Brake Pro, Inc. ("Brake Pro"). Goggin sought payment for unpaid freight shipping services provided to Brake Pro. In addition, as provided for under a company tariff, Goggin sought recovery of an additional amount because of the necessity to initiate legal action. The court below found in favor of Goggin. Brake Pro appeals.

Charles High vs. P.D.Q. Disposal, Inc., et al
M1999-02310-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Irvin H. Kilcrease, Jr.
Plaintiff/Appellant, Charles I. High, appeals dismissal of his pro se complaint filed in the Chancery Court of Davidson County, Tennessee, seeking judicial review of the denial of his application for unemployment benefits. The trial court dismissed the complaint for failure to join indispensable parties. We affirm the Chancellor.

Israel vs. Williams
M1999-02400-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Russell Heldman
This appeal presents the issue of whether the trial court was correct to grant summary judgment against Plaintiffs regarding their suit for damages resulting from alleged negligent misrepresentation by Defendants. Plaintiffs claim that Defendants made negligent misrepresentations regarding the condition of their house prior to the sale of the house to Plaintiffs. Summary judgment was granted by the trial court. Upon review of this record, we affirm the judgment of the trial court.

Shelbourne vs. Shelbourne
M1999-02557-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Muriel Robinson
The trial court granted the wife a divorce, awarded her custody of the parties' minor child, divided the marital property, and ordered the husband to pay rehabilitative alimony for two years. We affirm

Church vs. Perales
M1997-00227-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Barbara N. Haynes
This appeal involves a dispute between an elderly patient and her physicians regarding their treatment of a severe post-operative infection caused by a bowel perforation that occurred during gynecological surgery. The patient filed suit in the Circuit Court for Davidson County against five physicians and a hospital alleging medical battery and malpractice. The trial court granted a summary judgment to the physicians and the hospital and dismissed the patient's case. On this appeal, the patient takes issue with the summary judgment granted to her gynecologist, a consulting general surgeon, and the gynecologist attending her following surgery in her gynecologist's absence. We have determined that the trial court properly dismissed the patient's medical battery and informed consent claims against her gynecologist. However, we have also determined that the three physicians have not demonstrated that they are entitled to a judgment as matter of law on the patient's medical malpractice claim based on the delay in diagnosing and treating the bowel perforation.