COURT OF APPEALS OPINIONS

Barbara Vargo v. Lincoln Brass Works
M1999-00734-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Carol L. Soloman
This appeal involves a dispute between an employee and her former employer over severance pay. After the employee obtained a $13,750 judgment in the Metropolitan General Sessions Court of Davidson County, the employer perfected a de novo appeal to the Circuit Court for Davidson County. Following a bench trial, the trial court concluded that the employee had a vested right to severance pay under the employer's severance policy and awarded the employee $15,262.50. The employer has appealed. We have determined that the employer's severance policy contained an enforceable contractual obligation to pay severance pay to eligible employees. In the absence of proof that the employee was ineligible, we find that the trial court correctly interpreted and applied the severance policy. Accordingly, we affirm the judgment.

Marilyn E. Reel vs. George C. Reel, Jr.
M1999-01151-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: James T. Hamilton
This is a divorce case ending a twenty-seven year marriage. The trial court made an essentially equal division of property, awarding Wife the marital residence which remained unfinished even though the parties had occupied it since 1985. We modify the property division to provide Wife additional funds with which to complete and repair the residence.

David Rivkin vs. Lori Postal
M1999-01947-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Russell Heldman
This appeal involves the financial aftermath of a short-lived nonmarital affair that ended badly. The man filed suit in the Chancery Court for Williamson County seeking a partition of the jointly-owned property and the return of his personal property. The woman responded with a counterclaim for breach of promise to marry. Following a bench trial, the trial court divided the jointly-owned property and awarded the woman $150,000 in damages on her breach of promise claim. Both parties now take issue with the judgment. The man asserts that the evidence does not support awarding the woman $150,000 or granting the woman such a large share of the jointly-owned property. The woman takes issue with the reduction of her share of the property because of damage to the man's personal property while it was in her possession. We have determined that the evidence does not support the trial court's conclusion that a promise to marry existed or that the woman was damaged by the failure of the marriage to take place. We have also determined that, with the exception of a cedar chest belonging to the man's grandmother, the manner in which the trial court divided the parties' jointly-owned property was proper.

Lisa Ann Vaccarella vs. Raymond M. Vaccarella
M1999-01937-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Russell Heldman
The unusual procedural history of this case presents for review the validity of the parties' marital dissolution agreement ("MDA") and the subsequent divorce decree entered by Judge Henry Denmark Bell incorporating this MDA, as well as the court's decision regarding child custody, support, and visitation. After Wife filed Rule 59 and 60.02 motions for relief from her MDA, the second trial judge, Russ Heldman, determined that Tennessee Code Annotated section 36-4-103(b) requires a hearing prior to incorporating the signed marital dissolution agreement into a decree granting the parties an irreconcilable differences divorce. Judge Heldman further found the MDA to be invalid due to duress and violations of Wife's due process rights and vacated Judge Bell's decree granting the parties' divorce. We overrule the trial court on these issues and find the MDA signed by the parties, as well as the January 31, 1998 decree of Judge Bell granting final divorce, to be valid. We thus reinstate both the MDA and original decree. With regard to the issues of custody, visitation, and child support, we find substantial change in circumstances and affirm Judge Heldman's determinations on these issues.

Clark vs. Farrell
M1999-01945-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Robert L. Holloway
This is an appeal by the defendant from an action of the trial court in assessing discretionary costs against the defendant. The trial court entered an order of dismissal with prejudice on finding that "the parties have settled all matters in controversy . . ." which order was approved for entry by counsel for both parties. The plaintiff filed a motion for discretionary costs pursuant to Tenn. R. Civ. P. 54.04(2). The trial court then granted discretionary costs to the plaintiff in the amount of $2,185.75. We reverse.

Jeffery Tolbert vs. Dept. of Correction
M1999-02387-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen H. Lyle
This appeal arises from an action challenging the calculation of sentence reduction credits for an inmate in the custody of the Department of Corrections. After the inmate filed a petition claiming that he had been denied such credits, Department filed motion for summary judgment supported by an affidavit stating that Inmate's sentence had been properly calculated. Inmate failed to respond in a manner as required by Rule 56.06 Tenn. R. Civ. P. to establish that any genuine issues of material fact existed. As a result, trial court granted summary judgment motion. We affirm.

Old Republic Surety Co. v. Morris Eshaghpour
M1999-01918-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Walter C. Kurtz
The defendant purchased a building permit bond from the plaintiff surety company and executed an indemnity agreement to hold the surety harmless against all loss, liability and expenses the company might sustain on the bond. A claim was made against the bond regarding a home built by the defendant. The surety company notified the defendant, investigated the claim, and eventually settled with the claimant. In this lawsuit to collect under the indemnity agreement, the trial court granted summary judgment to the surety. The defendant argues that summary judgment was inappropriate because the motion was not properly supported according to the Rules of Civil Procedure and, alternatively, the issue of whether the surety acted reasonably and in good faith in settling the claim precludes summary judgment. We disagree and affirm the summary judgment on the issue of liability, but remand for proof on total damages.

Brenda Reese vs. Rickie Reese
M1999-02429-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Tyrus H. Cobb
The defendant, an incarcerated felon, appeals the action of the Chancellor in granting a divorce to his wife and settling all property rights between the parties. We affirm the judgment of the Chancellor

Pamela Sweat vs. James Sweat
W1999-00158-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Bob G. Gray

Max Pass vs. Shelby Aviation
W1999-00018-COA-R9-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: D. J. Alissandratos

Geral Largen vs. Cracker Barrel Old County Store, Inc., et al
E1999-01006-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Russell E. Simmons, Jr.

John Pointer, et al. v. Tennessee Equity Capital Corp.
M1999-01934-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen Hobbs Lyle
A now defunct company and its owner sued a former creditor on the basis the creditor's control and management of the company damaged it so that it was no longer a profitable business, causing the stock to lose value. The trial court granted summary judgment to the defendants because the only competent evidence established that the company was never profitable and that no action by the defendants caused the demise of the company. We affirm.

Project Creation, Inc., et al vs. Kenneth Neal, et al
M1999-01272-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: John O. Wootton
The trial court dismissed Plaintiffs' libel action and then granted Defendants' motion for sanctions pursuant to Tenn. R. Civ. P. 11.02(1) and 11.02(3), finding that the libel action was filed for an improper purpose and without factual support. The court awarded Defendants $9,262.90 in expenses and attorney fees. We affirm in part and vacate in part.

H & M Enterprises, Inc. v. Kathy Murray
M1999-02073-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Clara W. Byrd
This appeal involves a spouse's liability for money that the other spouse embezzled from her employer. When the employer discovered the embezzlement, it filed suit in the Circuit Court for Wilson County against the embezzler and her spouse to recover $196,231.69. After hearing the evidence without a jury, the trial court awarded the employer a judgment against the embezzler and her spouse for $196,231.69 and also awarded the employer a $78,500 judgment for punitive damages against the embezzler. The embezzler's spouse asserts on this appeal that the evidence preponderates against the trial court's determination that he should be jointly and severally liable for the embezzled funds. We agree and, therefore, reverse the judgment against the embezzler's spouse.

Ford vs. Humphres
M1999-00423-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: John W. Rollins
This appeal involves a dispute over the estate of Ms. Thelma Humphres, who was found by the trial court to have died intestate owning a one-half interest in her home and the approximately twenty acres on which it was locataed. She also owned some personal items which sold for $1,355.50. Appellant, Joy Ford, one of Ms. Humphres eight children, believed that Ms. Humphres had executed a will leaving her mother's entire one-half interest in the home and property to her. Ms. Ford objected to the administration of her mother's estate by her brother, Appellee, Danny Humphres, and attempted to prove a lost will. Ms. Ford failed to prove a lost will, and the property was subsequently sold to pay the estate's debts. As Ms. Ford owned the other one-half interest in her mother's property, she objected to the sale of this property. She also objected to the allocation of costs and fees related to the sale and the general administration of her mother's estate. All of her objections were overruled. She now appeals the trial court's actions in these matters. We affirm the trial court.

American National Property & Casualty Companies v. James E. Roberts, et al.
M1999-01572-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Ellen H. Lyle
This appeal involves a coverage dispute between the driver of a rented van and his insurance company. Following a single-vehicle accident that killed one passenger and injured two others, the driver's insurance company denied coverage because the driver was not operating the van with its owner's permission. Thereafter, the insurance company filed a declaratory judgment action in the Chancery Court for Davidson County. The trial court denied the insurance company's motion for summary judgment after concluding that the term "owner" as it appeared in the policy was ambiguous. Thereafter, the trial court granted the driver's motion for summary judgment after concluding, as a matter of law, that he had been operating the rented van with the owner's permission. We have determined that the trial court should not have granted the driver a summary judgment because the record contains material factual disputes regarding whether the driver was operating the rented van with the owner's permission.

Gallatin Housing Authority vs. Carthage, et al
M1999-02041-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: John D. Wootten, Jr.
This appeal arises from a suit seeking damages under a theory of inverse condemnation by the Gallatin Housing Authority ("Plaintiff") against the Town of Carthage, Smith County, Tennessee ("Defendant"). The Plaintiff has appealed as to the Town of Carthage and Smith County although the issues on appeal are directed to the Town of Carthage only. The Town removed some curbing and grass from a small area located between a turnaround and the county jail and then paved the area. At trial, the court found that the Plaintiff failed to prove by a preponderance of the evidence that it owned the strip of land which it claimed was wrongfully expropriated by the Town and that even if the Plaintiff proved ownership, the Town properly took the land pursuant to a dedication to the Town on June 8, 1966. On appeal, the Plaintiff presents three issues: (1) whether the trial court erred in its factual finding that the Plaintiff failed to prove ownership of the land, (2) whether the trial judge erred as a matter of law in concluding that the dedication allowed the Town to expropriate the land, and (3) whether the trial court erred in failing to consider the totality of the circumstances surrounding the dedication where questions were raised as to the intentions of the grantor. For the reasons hereafter stated, we affirm the trial court and find this appeal to be frivolous.

Beverly Bledsoe vs. Marion Bledsoe
W1999-01515-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: George R. Ellis

W1999-02682-COA-R9-CV
W1999-02682-COA-R9-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Walter L. Evans

Sammartano vs. Sammartano
M1999-00415-COA-R3-CV
Authoring Judge: Judge William B. Cain
In this divorce case, the defendant/wife appeals complaining of an inequitable division of marital assets, an inadequate award of rehabilitative alimony and the denial of attorney fees. As modified herein, we affirm the decision of the trial court

Marion Co. Bd. of Education vs. Marion Co. Education Assoc.
M1999-00213-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Jeffery Stewart
This is an appeal from a declaratory judgment action on behalf of the Marion County School Board seeking a determination as to whether or not the decision by the director of schools to transfer a principal to a teaching position was subject to binding arbitration under a collective bargaining agreement in effect between the school board and the Marion County Education Association. A cross-claim was filed by the Association requesting an injunction to force the Board to arbitration, and both parties filed motions for summary judgment. The trial court granted the Association's motion for summary judgment and mandated the Board to go to final and binding arbitration under the agreement. We reverse the decision of the trial court and hold that the statutory authority of the director of schools to hire and select principals may not be limited by a collective bargaining agreement and that such an agreement cannot authorize an arbitrator to determine who will be principal at a particular school.

Douglas DuBois vs. Rosemary DuBois
M1999-00330-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: John W. Rollins
Plaintiff/Appellant, Douglas Robert DuBois, and Defendant/Appellee, Rosemary Ann DuBois, are parents of two minor children, Caitlin Michel DuBois and Thomas Jackson DuBois. The Decree of Divorce was entered on November 5, 1998, following two days of trial that occurred on the 8th and 9th of October 1998. Both parties filed T.R.C.P. Rule 59 motions to alter or amend the final decree which, in effect, sought a redetermination by the trial judge of almost everything in issue. All of these motions were heard on May 12, 1999, after which, on June 15, 1999, the trial judge entered an order determinative of these Rule 59 motions. From this order, Plaintiff, Douglas Robert DuBois, appeals. We affirm the trial judge.

Estate of John Acuff, Sr., et al vs. Brenda O'Linger
M1999-00680-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Jeffrey F. Stewart
The singular dispositive question on this appeal is whether or not two deeds, purportedly executed by the late John E. Acuff, Sr., conveying certain property to Brenda O'Linger, bear the forged signature of John E. Acuff, Sr. An advisory chancery jury, acting under "preponderance of the evidence" instructions, held that the signatures were forged thereby voiding the two deeds. The chancellor adopted, without comment, the findings of the advisory jury and entered judgment for the plaintiffs voiding the two deeds. Defendant appeals and upon consideration of the record we reverse the chancellor.

Daniel White vs. State ex rel Brenda Armstrong
M1999-00713-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Betty Adams Green
This appeal involves the State's liability to repay child support payments made by a man who had voluntarily legitimated a child he believed to be his own. After this court directed the Davidson County Juvenile Court to grant him prospective relief from the legitimation order in accordance with Tenn. R. Civ. P. 60.02(4), the man requested the juvenile court to order the State and the child's biological mother to reimburse him for the child support payments he had made following the entry of the legitimation order. The juvenile court denied the request on the ground that it lacked subject matter jurisdiction to order the State to reimburse "overpaid child support." We have determined that the juvenile court lacks subject matter jurisdiction to adjudicate these claims and, therefore, affirm the juvenile court's order.

William Fox vs. Marcella Fox
M1999-01720-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Jeffrey F. Stewart
In this divorce case ending an eighteen year marriage, the trial court awarded as separate property only the items owned by each party at the time of the marriage. The court awarded the marital home to both parties as tenants in common, allowing Wife to retain possession while the children were minors but requiring her to make the mortgage payments. Upon the sale of the property, the parties were to divide the proceeds of the sale, after costs and encumbrances were paid, with Wife receiving 60% and Husband receiving 40%. Wife appeals, contending that the court was required to classify the gifts during the marriage as separate property, and that the court's distribution of the marital property was not equitable. She also argues that the trial court violated federal law by awarding Husband a percentage of the real property and by ordering her to pay the mortgage, claiming the source of the equity in the property and of her income is her disability benefits, and those funds are exempt from "attachment, levy, or seizure." The evidence does not preponderate against the court's classification of property, and we find the division to be equitable. We find no violation of federal law in the award of the real property or in the requirement that Wife pay the mortgage so long as she occupies the premises.