COURT OF APPEALS OPINIONS

Willie Toles/Ida Toles vs. City of Dyersburg
W1999-01238-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Lee Moore
The present appeal arises out of a zoning dispute between the plaintiff property owner and the City of Dyersburg, Tennessee. The property in question had been operated as a tavern since 1960. In 1998, the area in which the property was located was re-zoned as a residential area. At that point, the tavern became a non-conforming use. Prior to the re-zoning, the tavern's business license had expired and the beer license had also lapsed. The operator of the club applied for a beer permit but was denied based upon the fact that at the time of the re-zoning there was no business in operation on the premises. Therefore, the City determined that the premises could not be "grandfathered" into the new zoning classification. The Plaintiffs filed a Statutory Writ of Certiorari challenging the City's actions. The trial court held a trial de novo after which the City's actions were upheld.

Victor Williams vs. Percey Pitzer
W2000-00028-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Jon Kerry Blackwood
This is a habeas case. A Wisconsin inmate housed in a Tennessee prison filed a petition for a writ of habeas corpus. The prisoner was incarcerated in Tennessee pursuant to a contract between the Wisconsin correctional department and a private corporation. In his petition, the prisoner alleged that the Wisconsin correctional department did not have the authority to transfer him across state lines, and thus, his incarceration in Tennessee was illegal. The trial court dismissed his petition for failure to state a claim upon which relief can be granted. The plaintiff prisoner appealed. We affirm.

Robinson Property vs. Yoanne Russell
W2000-00331-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: D'Army Bailey
This case arises out of a $23,800.00 debt incurred by appellee Yo Anne Russell at the Horseshoe Casino and Hotel in Robinsonville, Mississippi. The court below granted summary judgment to Yo Anne Russell because the court held that the debt represented by the drafts is unenforceable in Tennessee due to public policy considerations embodied in section 29-19-101 of the Tennessee Code. Plaintiff appeals from the court below, arguing that the trial court erred in granting summary judgment to Defendant Yo Anne Russell. For the reasons stated hereafter, we reverse the judgment of the trial court.

Hansom Davis vs. Alfred Earls
W2000-00280-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Joe C. Morris
This is a suit by a prisoner against his former lawyer. The prisoner, convicted of rape and other crimes, was represented by the defendant, a former assistant public defender, in an unsuccessful attempt to obtain post-conviction relief. The prisoner later sought post conviction relief again in Circuit Court, proffering an affidavit purportedly signed by his victim recanting her statement that the prisoner had raped her. By this time, the defendant was no longer an assistant public defender, but had become employed as an assistant district attorney general. The defendant received information that the affidavit proffered by the prisoner was a forgery, and instigated proceedings that led to the prisoner's indictment for subornation of perjury. The prisoner sued the defendant attorney for breach of contract, official misconduct, and negligence per se. The trial court granted the defendant's motion to dismiss and/or for summary judgment. The prisoner appeals, and we affirm.

Joseph Canepari vs. George Summers
W2000-00527-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Dewey C. Whitenton
This is a suit for the partition of land. The Appellees brought a Complaint for Partition of Land by Sale in the Chancery Court of Fayette County. The Appellants answered and brought a counterclaim requesting the trial court to order the Appellees' one third-interest in the property to be partitioned by sale to the Appellants. The Chancery Court of Fayette County found for the Appellees, ordering the property to be sold by partition.

Beasley Cotton Co. vs. Ralph
W1999-00273-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Dewey C. Whitenton
This appeal arises from a breach of contract between Farmer and Broker. After signing a contract to deliver cotton to Broker, Farmer failed to do so. Broker was then forced to purchase the cotton elsewhere for a substantial loss and brought suit to recover the losses. At the start of the trial, Farmer requested that the trial court dismiss the case and order the parties to proceed to arbitration. Finding that Farmer had waived his rights under the contract to arbitration, the trial court refused. Proceeding with the case, court found that Farmer had breached the contract and awarded damages to Broker. We affirm.

Dept. of Children's Services v. T.L.C.
M2003-00509-COA-R3-JV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Timothy R. Brock
In this appeal the Appellant, R.L.P, Sr., argues that the Trial Court erred in terminating his parental rights to his son, R.L.P., Jr. We vacate the judgment of the Trial Court and remand.

Hobbs vs. Hobbs
M1999-00715-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Thomas W. Graham
Two years after a divorce, and eight months after the divorce decree was affirmed on appeal, the former husband filed a pro se motion asking the trial court to review new evidence and to find that he had been defrauded and denied his constitutional rights in the divorce proceeding. The trial court treated the pleading as a motion under Rule 60, Tenn. R. Civ. P., and held that the motion was (1) untimely and (2) not supported by the proof submitted by the movant. We affirm the trial court.

Borders vs. Crow
M1999-00985-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Hamilton V. Gayden, Jr.
This is a suit by employee for compensation allegedly due after discharge under oral contract of employment. Upon finding that the discharge was for cause, the jury nevertheless returned a verdict for the employee for post-discharge compensation. On the employer's appeal, we vacate that part of the judgment awarding post-discharge compensation.

City of Murfreesboro vs. Pierce Hardy Real Estate, Inc.
M2000-00562-COA-R9-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Robert E. Corlew, III
This case involves a dispute between the City of Murfreesboro and a landowner over the value and the acreage of a tract of land taken by the city to be used for a greenway along the Stones River. The city appeals the trial court's denial of a motion in limine that the city filed to exclude testimony of the landowner's appraiser. The motion stated that the expert's testimony relied on an inadmissible method of valuation and should, therefore, be excluded. Additionally, the landowner appeals the trial court's ruling that the landowner did not own a .61 acre portion of the of the land taken because, as it sits at the bottom of a navigable waterway, it is not subject to private ownership.

In the Matter of the Estate of S.W. Brindley
M1999-02224-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Stella L. Hargrove
This is a will contest between two siblings. After the onset of the parties' father's final illness, during which his competence was questioned and eventually a conservator appointed, the father executed a codicil to his will that materially altered the distribution of his estate in favor of his son, the appellant herein. The testator's daughter challenged the validity of the codicil in the underlying action. After the jury found that the codicil was not the testator's "own free act," but was instead the result of undue influence on the son's part, the codicil was declared a nullity. We affirm the jury's verdict.

In the Matter of T.S. and M.S.
M1999-01286-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ben Hall Mcfarlin
This case involves the termination of parental rights regarding two children who were removed from the parental home by the Department of Children's Services in 1995 and placed in foster care. The mother was ordered to take steps to remedy the deficiencies in the home and made some efforts to comply. After four years, DCS petitioned to terminate the mother's parental rights. The trial court found that the mother had failed to substantially comply with the Plan of Care and terminated the mother's rights on grounds (1) that the conditions that led to the children's removal continued to persist with little likelihood of remedy and (2) that the mother was incompetent to adequately provide for the children. Because DCS has established grounds for termination and has also established that termination is in the best interest of the children, we affirm.

Russo vs. Russo
M1999-02380-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Tom E. Gray
This appeal arises from an action for divorce initiated by Donald Joseph Russo ("Husband") against Debra Ann Russo ("Wife"). The trial court granted Wife an absolute divorce and alimony in futuro; awarded custody of the parties' minor children to Wife; ordered Husband to pay child support in the amount of thirty-two hundred dollars per month with additional child support of two thousand dollars per month to be placed in educational trust for parties' minor children; and awarded the majority of marital assets to Wife. Husband appeals.

Murphy vs. Martin
M1999-02273-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Hamilton V. Gayden, Jr.
The trial court dismissed this negligence action for the failure to prosecute. On appeal the plaintiff asserts that she did not have adequate notice that her lawsuit was in jeopardy. We affirm the trial court.

Vonkrosigk vs. Rankin
M1999-02254-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Don Ash
Buyer in real estate sale contract contingent on obtaining the financing sued for return of earnest money after she failed to qualify for a loan to finance to purchase. The trial court found that buyer acted in good faith in attempting to secure financing and entered judgment for buyer. Sellers have appealed.

Geldreich vs. Hall
M1999-02258-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Leonard W. Martin
This appeal arises from a suit initiated by Geldriech ("Investors") alleging breach of fiduciary duty, fraud, and conversion by Hall in his capacity as corporate officer. When Hall failed to answer and appear for hearing, Investors' motion for default judgment was granted. Thereafter, Hall filed a motion to strike the default judgment that was denied by the court below. Hall appeals the trial court's failure to grant him relief from the default judgment.

State, ex rel Boren vs. Town of Orlinda
M1999-02240-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: James E. Walton
This appeal arises from property owners' quo warranto challenge to an ordinance annexing their property. Property owners allege that the annexation was not reasonably necessary for their health, safety, and welfare and for the annexing municipality. Prior to trial, the trial court denied Defendant's motion in limine which sought to exclude testimony of the property owners, a comparison of the services offered by the annexing municipality and a neighboring municipality interested in annexing the disputed area, evidence regarding the public hearing on annexation, and evidence of the annexing municipality's other annexations. The jury returned a verdict for Plaintiffs, finding the annexation was not reasonable, and the trial court entered judgment thereon. Defendant appeals.

Joseph Spottswood Crowell vs. Mayme Modena Roberson
E1999-00348-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Frank V. Williams, III
The appellee has filed a petition for rehearing pursuant to Tenn. R. App. P. 39. In the first ground of his petition, he asserts that we made a mistake in computing the "[a]djustment re: North Carolina property" reflected on page 8 of our opinion. The appellee is in error in this assertion. We purposely utilized an adjusting figure of $141,915 rather than $140,447.50 -- the latter figure being fifty percent of the value of the marital property share of the North Carolina property. The larger figure was a "plug" figure used to achieve equality in the overall division of the parties' marital property. Since it will be necessary to transfer funds to consummate this division, we deemed it equitable in this case to equally divide the parties' marital estate. The trial court found that equality was equitable and the evidence does not preponderate against this finding.

Hudgens vs. Rogers
M2000-00239-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Arthur E. Mcclellan
The mother of four minor children appealed the trial court's decision to change custody from Mother to Father based on a material change in circumstances. Prior to the entry of that order, it had been determined that an agreement, originally announced to the court which awarded custody of the children to Mother, had been set aside due to the court's finding that there had been no meeting of the minds of the parties as several critical issues had been left unresolved. We have determined that the court was correct in that decision. Therefore, the standard which the trial court should have applied was one of comparative fitness and best interest of the children rather than a material change of circumstances. This matter is reversed and remanded to the trial court.

Johnna Hayes vs. Jeff Hayes
W1999-00445-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: George R. Ellis
This appeal arises from a dispute between Plaintiff Johnna Lea Hayes (Beuerlein) and Defendant Jeff C. Hayes regarding the amount of Mr. Hayes' child support obligation and the enforcement of a promissory note executed by Ms. Beuerlein in conjunction with the parties' divorce. The trial court found (1) that Mr. Hayes has an annual income of $64,139.00, (2) that Mr. Hayes' child support obligation is $1,221.00 per month but that this amount should be reduced to $621.00 per month until Ms. Beuerlein's debt under the promissory note is satisfied, (3) that Mr. Hayes' child support arrearage is equal to $14,940.00, (4) that Ms. Beuerlein's debt under the promissory note is equal to $39,569.85, (5) that, subtracting Mr. Hayes' child support arrearage from Ms. Beuerlein's debt under the promissory note, the net amount that Ms. Beuerlein owes to Mr. Hayes is $24,665.85 plus ten percent (10%) interest, and (6) that each party shall pay his or her own attorney's fees. For the reasons set forth below, the ruling of the trial court is affirmed in part, reversed in part, and the cause is remanded for further proceedings consistent with this opinion.

Planters Gin Company v. Federal Compress &Amp; Warehouse
W1999-02460-COA-R3-CV-
Trial Court Judge: Kay S. Robilio

Talmage Crump vs. Kimberly Bell
W1999-00673-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George H. Brown
This is a personal injury case. Plaintiff filed a complaint and issued summons, which was returned "not to be found." Plaintiff issued an alias summons which was also returned "not to be found." Plaintiff issued pluries summons more than one year after the return of the alias summons. The trial court dismissed plaintiff's case for failure to comply Rule 3, Tenn.R.Civ.P. Plaintiff asserts that defendant is equitably estopped from relying upon Tenn.R.Civ.P. 3, because of action of defendant's liability insurance carrier leading him to believe that the defense would not be raised upon which he relied to his detriment. The trial court found no estoppel, and plaintiff has appealed.

Merritt vs. Yates
M1999-00775-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Ellen Hobbs Lyle
This appeal involves a dispute between Plaintiff June Yates Merritt ("Ms. Merritt") and Defendants Aileen Biron Yates ("Mrs. Yates") and Claire Biron ("Mr. Biron") regarding the proper interpretation or construction of mutual wills executed in April of 1985 by Mrs. Yates and her husband Thomas Harry Yates ("Mr. Yates"), who was the father of Ms. Merritt. After the death of Mr. Yates in December of 1985, Mrs. Yates deeded certain real property to Mr. Biron, gifted certain personal property to Mr. Biron, and established a revocable trust using money received as a result of her husband's death. In an action filed by Ms. Merritt challenging these transactions, the trial court determined that there were no genuine issues of material fact and entered a judgment in favor of Ms. Merritt. Additionally, the court denied Ms. Merritt's motion for discretionary costs. Mrs. Yates appeals the court's order granting a judgment in favor of Ms. Merritt and Ms. Merritt appeals the court's ruling regarding her motion for discretionary costs. For the reasons set forth below, we affirm the ruling of the trial court.

Inscoe, et al vs. Kemper, et al
M1999-00741-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Tom E. Gray
This appeal arises from a suit filed by Inscoe seeking the return of earnest money held in escrow for the purchase of Kemper's residence. When Inscoe decided not to purchase the residence, Kemper refused to return the earnest money. The trial court found in favor of Inscoe and ordered the return of the earnest money. In making its finding, the court stated that Inscoe's promise to buy was illusory and there was no meeting of the minds, thus the contract was void and unenforceable. Kemper appeals.

Beavers vs. The Lebanon Democrat Newspaper
M1999-02401-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Tom E. Gray
This appeal arises from an action initiated by Plaintiffs, Mae and Jerry Beavers, against the Defendant newspaper, the Lebanon Democrat, for libel and slander. The Beavers' claim arises out of two separate articles published by the newspaper. The trial court granted the newspaper's motion for summary judgment, holding that the first article was substantially true and the second article was a non-actionable opinion. The Beavers appeal.