APPELLATE COURT OPINIONS

This is a boundary dispute. The plaintiff alleges that the location of the boundary line between her property and the adjoining land of the defendants is shown by a survey made by Sterling Engineering, Inc.

On October 26, 1993, plaintiffs purchased an new residence in Oak Ridge from the defendants. Thereafter, the unfinished basement of the residence flooded on several occasions after heavy rainfall.

This is an action on a promissory note. In 1993, plaintiff, Wanda Tate, sold her women's clothing store to the defendants, Sally Seivers and Carole Mitchell and their corporatin, L'Argent, Inc. (collectively "buyers"). Several months after the sale, the buyers, dissatisfied with some of the inventory sold to them, tendered less than the full payment amount called for by the promissor note they had signed in partial consideration for the sale. Tate rejected the partial payment and sued for recovery of the full amount due under the terms of the note. The buyers argued tha Tate had made material misrepresentations regarding some of the the inventory, resulting in the value of the inventory they purchased being substantially less than anticipated at the time of the sale.

The captioned defendant has appealed from a judgment of the Trial Court which reads in full as follows: This cause came on to be heard on this the 23rd day of July, 1997, before the Honorable Allen W. Wallace, Chancellor, upon stipulation of the parties, certified copies of various documents, statement of counsel, and upon the entire record. From all of which the Court finds that the Defendant improperly opened a cul-de-sac located on Timberland Drive, New Johnsonville, Tennessee, and Lot No. D-6 of the Countrywood Estates Subdivision, Section IV, and further that the Defendant violated the restrictions and protective covenants of Countrywood Estates Subdivision, Section IV, as a street or driveway to unrestricted and non-conforming adjoining property, and particularly the 11.7 acre tract that was purchased by the Defendant.

The husband in this divorce case challenged almost every aspect of the trial court’s orders, including child custody, alimony, the division of marital property and the terms of an injunction imposed to prevent him from interfering with the wife’s authority over the children. We modify the injunction because we believe that its provisions are overbroad. In all other respects, we affirm the trial court.

Plaintiff appeals to this Court on the refusal by the Trial Judge to grant plaintiff relief pursuant to Tennessee Rules of Procedure, 60.02(1). The underlying action was dismissed on July 23, 1996 by the Trial Judge “for want of prosecution.” On July 18, 1997, plaintiff filed a motion to set aside the judgment pursuant to Rule 60, T.R.C.P. on the ground the judgment was entered because of mistake, inadvertence, and excusable neglect. The motion explained that the plaintiffs “former counsel William J. Hart, did not receive notice from the Court that the case would be dismissed for lack of prosecution pursuant to local Rule 37.02.”

This appeal involves a divorce ending a long-term marriage. The husband filed suit to divorce his wife of thirty years in the Chancery Court for Rutherford County, and the wife counterclaimed for a divorce from bed and board. The trial judge, sitting without a jury, declared the parties divorced, divided the marital property, and awarded the wife rehabilitative alimony for three years. The wife takes issue on this appeal with the decision to declare the parties divorced, the division of marital property, and the failure to award her long-term spousal support and attorney’s fees. She also insists that the trial judge should have recused himself because of his prior professional association with the husband’s lawyer. We conclude that the trial judge was not disqualified from hearing this case. While we also find that declaring the parties divorced was proper, we have determined that the division of marital property and the spousal support award should be modified but that the wife should not receive an additional award for her legal expenses.

The appellant, Samuel L. Lamb, Jr., appeals as of right the sentencing decision of the Marshall County Circuit Court. Pursuant to a plea agreement, the appellant pled guilty to three counts of theft of property and received an effective five year sentence.1 Following a sentencing hearing, the trial court ordered that the appellant serve 270 days of this sentence in the county jail with the balance of the sentence to be served in the community corrections program. In this appeal, the appellant contends that the trial court erred by denying full probation or placement in community corrections. After review, we affirm.

This case involves a dispute between two neighbors in the Fairview community of Williamson County concerning the use of a gravel driveway. Three years after purchasing a tract of land on which portions of the driveway were located, the property owners filed suit in the Chancery Court for Williamson County to quiet title to the portions of the driveway they believed to be on their property. Their neighbors responded that the driveway was their only access to a pubic road and that they had acquired a right to use the driveway by adverse possession. After the trial court granted the plaintiffs’ uncontested motion for summary judgment, the defendants filed a Tenn. R. Civ. P. 59.04 motion asserting that they had an “easement of presumption” to use the driveway. The trial court denied the post-judgment motion on the ground that the new defense had not been timely raised. On this appeal, the losing property owners take issue with the trial court’s decision to grant the summary judgment and to deny their post-judgment motion. We affirm the summary judgment.

This is a divorce case. The parties, Granville Harvey Miller1 (Husband) and Linda Janiece Wright-Miller (Wife), were married for approximately 5 years before a final decree of divorce was entered in August 1997.2 During the marriage, the parties resided at a home located at 2166 Aztec Drive. On appeal, Husband challenges the correctness of the trial court’s classification of this property as marital as well as its determination that the asset is unencumbered. Husband contends that the true owner of the property is Heartland Investments, Inc. (Heartland), a corporation that he founded prior to the parties’ marriage and of which he is president and sole shareholder or, alternatively, that the parties own the property encumbered by a mortgage executed in favor of the corporation. Wife has also raised an issue with respect to the trial court’s finding that there was no increase in value of Heartland stock during the marriage. After review of the record, we affirm in part and reverse in part. We set forth our reasons below.

I concur in the majority opinion insofar as it affirms the judgment of the trial court. However, I must respectfully dissent from the majority opinion, which reverses the trial court’s decision concerning the division of the increase in value of the Heartland stock.

This case is before us on appeal from the trial court’s decree of divorce and grant of child custody and support to the Appellee, Ronald Steven Caira. In bringing this appeal, Appellant raises two issues for consideration. 1. Whether the trial court erred in failing to award primary custody of the minor children of this marriage with Defendant/Appellee. 2. Whether the trial court made an equitable property distribution of the debts, assets and retirement proceeds of this marriage.

This cases involves a d ispute over a limited partnership. BIB Enterprises, Ltd. (“BIB”) was formed on December 30, 1982 for the stated purpose of acquiring real estate, equipment and other personal property of a Bonanza Restaurant in Lawrenceburg, Tennessee. Defendant-appellant Greg Smith was named General Partner.

This action began with a complaint filed by the appellee, Jon Hoscheit, (husband) seeking an absolute divorce from the appellant, Johanna G. Hoscheit (wife). After a bench trial, the court entered a final judgment granting an absolute divorce, custody of the parties' minor child to the father, dividing the marital estate and awarding alimony to the wife. From the judgment of the trial court the wife has appealed. We affirm the judgment of the trial court.

A licensed auctioneer and real estate broker filed suit against the defendant landowners for breach of an auction contract, because the defendants sold their land prior to the scheduled auction without his participation. The trial court held that the auctioneer was entitled to the anticipated commission amount. We affirm the trial court’s holding that the property owners are liable, but we modify the amount of damages.

This appeal involves a dispute between the Board of Paroles and a prisoner convicted of being an habitual criminal over the inmate’s right to custodial parole and the calculation of his sentence credits. The Chancery Court for Davidson County granted the Board’s motion to dismiss, and the prisoner has appealed. We affirm the dismissal of the prisoner’s suit in accordance with Tenn. Ct. App. R. 10(b).

This is an appeal from a post-divorce proceeding wherein the appellant sought a change in custody of the parties minor child on the grounds that there had been a material change of circumstances justifying such a change. The trial court dismissed the complaint and this appeal resulted. We affirm the judgment of the trial court.

While riding as passengers in an automobile owned by defendant and driven by a close friend of defendant’s son, the intervening plaintiff was seriously injured in a one-car accident when the driver apparently fell asleep at the wheel. The passenger intervened in the driver’s petition and alleged that the vehicle had been driven with the express or implied permission of its owner and sought a declaratory judgment that his insurer was therefore liable for her injuries. The trial court found the driver did not have such permission and dismissed intervenor’s petition, and she appeals.