APPELLATE COURT OPINIONS

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Billy and Mary Milliken v. Crye-Leike Realtors, et al

M1999-00071-COA-R3-CV

The buyers of a new residence filed this action against the builder and their realtor after discovering that the house was defective. The claims against the realtor alleged negligent misrepresentation and violations of the Tennessee Consumer Protection Act based in part on the agent's representation that the builder was licensed. The jury, using a jury verdict form, found that the realtor had committed a deceptive act or practice prohibited by the Consumer Protection Act, but determined that the buyers had suffered no loss therefrom. The jury also found the realtor liable for negligent misrepresentation, calculated the damages resulting from the realtor's negligent misrepresentation, and apportioned fault at 10% to the buyers, 10% to the realtor, and 80% to the builder, a nonparty. On appeal, the buyers argue that the verdict was inconsistent and challenge the assessment of costs and the failure to award attorney fees. We affirm the verdict, the denial of attorney's fees, and the apportionment of court costs. We vacate the denial of discretionary costs and remand for determination of that issue.

Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Judge Clara W. Byrd
Smith County Court of Appeals 07/05/01
Larry Niedergeses, et al v. Giles County, Tennessee

M2000-00428-COA-R3-CV

This case presents a tragic set of facts involving an automobile accident which occurred in Giles County on May 8 or 9, 1997, sometime between 11:15 p.m. and 12:15 a.m. Michael Niedergeses died as a result of this accident. His parents, Larry Niedergeses and Roberta Niedergeses, instigated this suit against Giles County alleging that the county's negligence in failing to maintain the bridge signage caused their son's accident and resulting death. The case was tried non-jury in the Circuit Court of Giles County. That court found Mr. Niedergeses fifty percent at fault and Giles County fifty percent at fault. Plaintiffs appeal this ruling asserting that the trial judge was in error and should have found Giles County more than fifty percent at fault. The appeal presents for review the question of "whether the evidence preponderated against the trial court's finding that John Michael Niedergeses was fifty percent at fault in the May 9, 1997 accident." We find that the evidence does not preponderate against the judge's findings and affirm the trial court's ruling.

Authoring Judge: Judge William B. Cain
Originating Judge:Judge Robert L. Holloway, Jr.
Giles County Court of Appeals 07/05/01
William P. Livingston v. State of Tennessee, Board of Paroles

M1999-01138-COA-R3-CV

Petitioner appeals the trial court's decision to deny his petition for common law writ of certiorari challenging a Board of Paroles decision to revoke his parole and the court's grant of Respondent's motion for summary judgment. Petitioner appeals the order on two grounds, (1) his due process rights were violated by the introduction of inadmissible evidence, and (2) these procedural flaws led to the hearing officer becoming biased and unable to conduct a fair and impartial hearing. For the reasons below, we find both claims without merit and affirm the trial court.

Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Chancellor Carol L. Mccoy
Davidson County Court of Appeals 07/05/01
Larry Robbins, v. City of Johnson City, Tennessee

E2000-02952-COA-R3-CV

This case involves the termination of Johnson City police officer, Larry Robbins. Dissatisfied with his department's handling of certain allegations of sexual harassment made by a secretary against officer Mike Lukianoff, Robbins authored an anonymous letter and sent it to each of the City Commissioners. The Chief of Police, who later learned of the letter, conducted an investigation. Robbins eventually admitted to writing the letter, to relating the allegations even though he had no personal knowledge of them, and to having a personal vendetta against the alleged harasser. The City terminated Robbins, primarily for conduct unbecoming an officer. Robbins appealed to the City Civil Service Commission, which upheld Robbins' termination. Robbins then appealed to the Washington County Chancery Court, which reversed the termination, but remanded for appropriate discipline. The City appeals the reversal of Robbins' termination, and Robbins appeals the remand for discipline. We find that the trial court erred in reversing the termination.

Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Judge Jean A. Stanley
Washington County Court of Appeals 07/03/01
In Re: Adoption of J.R.W.

E2000-01335-COA-R3-CV
R.J.W. ("the Wife of the Adopter") instituted this action against her sister-in-law, K.D.W., seeking to set aside the adoption of K.D.W.'s natural son, J.R.W., by the plaintiff's late husband, M.W. ("the Adopter"), some eleven years earlier. The trial court dismissed the petition. We affirm.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:John B. Hagler, Jr.
Monroe County Court of Appeals 06/29/01
John T. Bell, et al vs. Richard Gene Nolan, et al

M2000-02684-COA-R3-CV
The parents of a woman who died after being assaulted by her husband on the premises of an American Legion post filed a wrongful death claim, which named the husband and the American Legion post as defendants. The parents alleged that the Legion's employees had failed to render assistance to the injured woman. The trial court dismissed the complaint against the American Legion, reasoning that the surviving spouse is the only party entitled to maintain an action for the wrongful death of the other spouse. We reverse.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:John W. Rollins
Coffee County Court of Appeals 06/26/01
Williamson County, et al. v. State Board of Equalization

M2000-03178-COA-R3-CV
In this case, a consortium of counties and cities appeals the decision of the Chancery Court of Davidson County upholding the action of the Tennessee State Board of Equalization in applying depreciable life schedules forming a part of Tennessee Code Annotated section 67-5-903(f) to commercial and industrial tangible personal property and in holding that personal property is not constitutionally required to be valued at its actual value in the implementation of Tennessee Code Annotated section 67-5-1509(a). The only issues before this court are the constitutionality of Tennessee Code Annotated section 67-5-903(f) and Tennessee Code Annotated section 67-5-1509(a). We hold both statutes to be constitutional and affirm the Chancellor.
Authoring Judge: Judge William B. Cain
Originating Judge:Ellen Hobbs Lyle
Williamson County Court of Appeals 06/26/01
Karrie Gentry vs. Bryan Gentry

E2000-02714-COA-R3-CV
This is a divorce case. Karrie Beth Gentry ("Mother") was awarded primary residential custody of the parties' two minor children, and Bryan Keith Gentry ("Father") was ordered to pay child support of $2,100 per month. Father appeals, arguing that the trial court erred in imputing income to him for the purpose of determining child support. Because we find that the trial court properly calculated Father's income based upon what it found to be the only credible evidence presented at trial, we affirm.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:L. Marie Williams
Hamilton County Court of Appeals 06/26/01
In re: Adoption of A.K.S.R. and A.T.S.R.

M2000-03081-COA-R3-CV
This appeal stems from a petition by both a paternal aunt and the foster parents to adopt twenty-month-old twin girls. The trial court found that the paternal aunt should adopt the children because relatives have preference over non-relatives in adoption proceedings and the foster parents did not meet the terms of the contract they signed with the Department of Children's Services. We reverse the decision of the trial court and grant the petition of the foster parents.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Leonard W. Martin
Cheatham County Court of Appeals 06/26/01
Pearl Lynell Potts, Indiv.and Executor of the Estate of Gordon Ray Potts, Sr., Deceased, vs. Mary Potts Mayforth, et al vs. Alice Elizabeth Nelson

E2000-03116-COA-R3-CV
The Trial Court entered a Default Judgment against Potts pursuant to Tenn. R. Civ. P. 37.02 and then summary judgment for plaintiffs. On appeal by defendants, we affirm the Judgment of the Trial Court.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:G. Richard Johnson
Carter County Court of Appeals 06/26/01
Volunteer Investments, Inc. vs. Feller Brown Realty & Auction Co., et al

M2000-02644-COA-R3-CV
A developer who purchased three real estate tracts at auction filed suit to rescind the purchase on the grounds of misrepresentation or mutual mistake. The trial court dismissed his complaint. We affirm.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Irvin H. Kilcrease, Jr.
Davidson County Court of Appeals 06/26/01
Anthony Murray vs. Dewey Lineberry

M2001-00097-COA-R3-CV
This appeal arises from a defamation action. The appellant sued the appellee for slander after the appellee aired a series of political advertisements including statements about the appellant, a deputy sheriff. The Wilson County Circuit Court granted the appellee's motion for summary judgment. We affirm the trial court's decision.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Julian P. Guinn
Wilson County Court of Appeals 06/26/01
Jerome Beasley, et al vs. Lloyd Amburgy

M2000-03122-COA-R3-CV
A limousine driver, after taking Tylenol and two or three shots of novocaine for an abscessed tooth, suffered a blackout and lost control of the automobile. The trial court granted summary judgment to the driver and his employer on the ground that the blackout was not reasonably foreseeable. We affirm.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Barbara N. Haynes
Davidson County Court of Appeals 06/26/01
Don Stone vs. Donald Brickey, et al

M2000-03093-COA-R3-CV
The trial court found that the plaintiff had a prescriptive easement over an old county road that abutted his land. The defendants argue that the trial court was in error because the plaintiff did not prove all of the elements required to establish a prescriptive easement. We affirm the trial court.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Tom E. Gray
Sumner County Court of Appeals 06/26/01
Hopewell Baptist Church vs. Southeast Window Mfg. Co., et al

E2000-02699-COA-R3-CV
Hopewell Baptist Church brought suit against defendant Southeast Window Mfg. LLC., alleging that it was a successor corporation and liable under a contractual warranty given by its predecessor. The Trial Court ruled that the defendant was a successor corporation and had expressly or impliedly assumed the obligations under its predecessor's warranty through the acts of its agent. We reverse.
Authoring Judge: Judge David Michael Swiney
Originating Judge:W. Dale Young
Blount County Court of Appeals 06/25/01
Tonya Sexton vs. Hartco Flooring Co.

E2000-02489-COA-R3-CV
The Trial Court granted defendant summary judgment on plaintiff's claims of sexual harassment and retaliatory discharge from employment. On appeal, we affirm judgment on the sexual harassment claim, but vacate and remand on claim of retaliatory discharge.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Billy Joe White
Scott County Court of Appeals 06/25/01
Jerry Brooks vs. Melissa Ibsen, et al

E2000-02870-COA-R3-CV
Jerry Brooks ("Plaintiff") contracted with Joe Ibsen d/b/a Century Wholesale Pool Supply, Inc. ("Defendant"), for the installation of a swimming pool. Plaintiff received a limited warranty. After the swimming pool developed several cracks and the parties could not reach agreement on the proper way to repair the pool, Plaintiff had the pool repaired in the manner recommended by an engineer he had retained. This lawsuit followed. The Trial Court awarded Plaintiff $61,531.28 in damages. We reduce the judgment to $51,371.28 and affirm as modified.
Authoring Judge: Judge David Michael Swiney
Originating Judge:Billy Joe White
Union County Court of Appeals 06/25/01
Johnson City, TN vs. Steven Taylor & Elease Taylor

E2000-02491-COA-R3-CV
In this condemnation action, defendants attempted to appeal during pendency of the action in the Trial Court. This Court determined there was no basis to treat the issue as either an interlocutory appeal or extraordinary appeal, and dismissed appeal.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Jean A. Stanley
Washington County Court of Appeals 06/25/01
Harry M. Pack vs. Tina Lewin Ponak

M2000-02285-COA-R3-CV
The Lincoln County Circuit Court granted the appellee's motion for summary judgment allowing the sale of real property held as joint tenants with the right of survivorship. We find, however, that whether there is an agreement not to partition the property is a disputed question of fact. We reverse the trial court and remand for further proceedings in accordance with this opinion.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Lee Russell
Lincoln County Court of Appeals 06/22/01
Shirley Breeding vs. Robert Edwards, et al

E2000-01900-COA-R3-CV
We are asked to decide whether the Supreme Court's decision in the case of Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000), is applicable to a case in which a plaintiff seeks to recover under the uninsured motorist provisions of its policy based upon the alleged negligence of an unknown motorist, the existence of whom is first asserted by a named defendant. In the instant case, a vehicle driven by the plaintiff Shirley Irene Breeding was struck by a vehicle driven by the defendant Robert Lewis Edwards and owned by the defendant Johnston Coca Cola Bottling Group, Inc. ("Johnston"). She filed a complaint against these defendants within the period of the statute of limitations and secured the service of process upon her uninsured motorist ("UM") carrier, the appellee Farmers Insurance Exchange ("Farmers"). Outside the period of the statute of limitations, the defendants amended their answer to allege that an unknown motorist caused or contributed to the accident. Within 90 days, Breeding amended her complaint to add John Doe, i.e., the unknown driver, as a party defendant. Farmers moved to dismiss the claim against it. It relied on Brown, a slip and fall case. The trial court agreed with Farmers and dismissed Breeding's claim. Breeding appeals, asserting, inter alia, that Brown does not apply to the instant case. We reverse.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Wheeler A. Rosenbalm
Knox County Court of Appeals 06/22/01
Ronald Robinette vs. Mark Johnson

M2000-01514-COA-R3-CV
This appeal involves a dispute over a promissory note. The jury below found for the Plaintiff. We affirm the trial court and remand for a determination of reasonable attorneys' fees incurred by Plaintiff with respect to this appeal.
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Tom E. Gray
Sumner County Court of Appeals 06/21/01
Melissa Jane (Nichols) Steen vs. Evans Harrington Steen

M2000-00313-COA-R3-CV
In this custody case the General Sessions Court of Wilson County changed its custody order from joint care and control with primary custody in the father to exclusive custody in the father and standard visitation to the mother. The record shows, however, that the mother has had primary custody of the children since the divorce and that both parties are fit parents. They each love the children and take good care of them. Under those circumstances, we hold that there is a presumption in favor of continuity of placement. Therefore, we reverse the lower court's order and grant primary custody to the mother.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Ben H. Cantrell
Wilson County Court of Appeals 06/21/01
Christopher Farley vs. Carrolle Farley

W2000-01987-COA-R9-CV
This appeal involves a change of custody motion filed by Mother in the chancery court which had previously entered a divorce decree awarding joint custody of the minor child, with primary physical custody with Father. The chancery court dismissed the motion, holding that it had no jurisdiction to hear a change of custody motion by virtue of a previously filed petition in juvenile court to declare the child dependent and neglected, which petition was dismissed by the juvenile court. Mother was granted an interlocutory appeal. We vacate and remand.
Authoring Judge: Judge W. Frank Crawford
Originating Judge:George R. Ellis
Crockett County Court of Appeals 06/21/01
Brenda Hinton vs. Carey Stephens

W2000-02727-COA-R3-CV
This appeal arises from a dispute between relatives over a parcel of real property. Although the parties executed a contract which stated that the purchase price was due in one year, the parties disregarded the contract language for eleven years. The trial court ruled that the parties had acquiesced in the extension of the contract and that they were now estopped to deny the contract's validity. As a result, the trial court ordered that the home be sold as per the terms in the contract. For the following reasons, we affirm the judgment of the trial court.
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Martha B. Brasfield
McNairy County Court of Appeals 06/21/01
Betty Vestal vs. Thomas Lawler

W2001-00013-COA-R3-CV
Buyer, under warranty deed, sued seller for breach of warranty against encumbrances after receiving notice of trustee's sale pursuant to deed of trust encumbering the property. Seller answered the complaint and filed a third party complaint against the lawyer he retained to perform a title search, which search failed to show the deed of trust. The third party defendant filed a counter complaint against the seller. The trial court granted the buyer judgment on the pleadings against seller, dismissed seller's third party complaint, and granted third party defendant summary judgment against seller. Seller appeals. We reverse in part and modify in part.
Authoring Judge: Judge W. Frank Crawford
Originating Judge:Clayburn L. Peeples
Gibson County Court of Appeals 06/21/01