COURT OF APPEALS OPINIONS

Tennie Martin and Roya Mitchell, et al v. NorFolk Southern Railway Company, et al - Dissenting
E2006-01021-COA-R3-CV
Authoring Judge: Judge Charles Susano, Jr.

CHARLES D. SUSANO, JR., dissenting.
I start with an elementary and bedrock principle of Tennessee jurisprudence: when a party
timely files a complaint in circuit court, alleges facts making out a cause of action, and demands a
jury, that party has a constitutional right to have a jury pass upon the merits of its allegations. Tenn.
Const. Art. I, §6. (“That the right of trial by jury shall remain inviolate . . .”). I fully recognize that
a party’s jury demand and its right to pursue its alleged cause of action can be legitimately thwarted
if the party sued can demonstrate, under the rubric of Tenn. R. Civ. P. 56, that it is entitled to
summary judgment. Hence, if the material facts pertaining to a defense are not in dispute and if
those facts show conclusively that the defendant is entitled to a judgment, the plaintiff loses its
constitutional right to a jury trial, its case is over, and the defendant goes away with summary
judgment.

Tennie Martin and Roya Mitchell, Co-Personal Representatives of the Estate of Kathryn Martin, deceased, and Tennie Martin and Roy A. Mitchell, et al v. NorFolk Southern Railway Company, et al
E2006-01021-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Circuit Judge Donald R. Elledge

Decedent’s vehicle was struck by defendants’ train at a railroad crossing, resulting in decedent’s death. The Trial Court granted Defendants’ Summary Judgment. The Estate has appealed. We affirm the Trial Court’s Judgment.

Progressive Casualty Insurance Co. v. Howard D. Chapin and Arthur Blair Samuels and Sabrina D. Ball, as Guardian Ad Litem for Natascha Bouchard
W2006-00531-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Rita L. Stotts

This is an insurance case. The plaintiff insurer issued a policy of insurance for a motorcycle. The
named insured kept the motorcycle at his home, and allowed his adult son unrestricted access to hishome and the motorcycle. The adult son borrowed the motorcycle and drove it to a friend’s house. While there, the adult son let the friend take his minor stepdaughter for a ride on the motorcycle. The friend lost control of the motorcycle and the stepdaughter was injured. The accident prompted the stepdaughter’s biological father to file a petition against his daughter’s mother in chancery court for a change of custody. During the custody dispute, the chancery court appointed both a guardian ad litem and an attorney ad litem for the stepdaughter, and ordered the attorney ad litem to pursue any legal actions on behalf of the stepdaughter for the accident. When the attorney ad litem filed a claim on the stepdaughter’s behalf with the plaintiff insurer, payment was denied. The guardian ad litem then filed a separate tort action against the friend. While the tort action was pending, the plaintiff insurer filed this declaratory judgment action against the named insured and the friend, seeking a declaration that its insurance policy did not cover the friend. The guardian ad litem intervened in this action. After a bench trial, the trial court found that the insurance policy covered the friend for the motorcycle accident, and awarded the guardian ad litem discretionary costs, which included attorney’s fees for the attorney ad litem. The plaintiff insurer now appeals. We reverse the trial court’s decisions on the issue of coverage and discretionary costs, and remand for further proceedings as may be necessary.

Harriet Caci (O’Shields) Rogers v. Scott Allen Rogers
W2006-00858-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge D'Army Bailey

This is a parental relocation case. After the parties separated, the mother and the child moved in
with the mother’s parents in Memphis, Tennessee. Under the parties’ marital dissolution agreement (“MDA”), the mother was designated the primary residential parent for the parties’ child, and the father was granted parenting time every other weekend. Two months after entry of the divorce decree incorporating the MDA, the mother sent the father a letter notifying him of her intent to move to South Carolina with the child. The mother explained that her parents were moving to South Carolina and she wanted to move with them. The father filed a petition in opposition to the mother’s proposed relocation, arguing that the move had no reasonable purpose. After a bench trial, the trial court determined that the mother did not have a reasonable purpose for the move and denied her request to relocate. The mother now appeals. We affirm the trial court’s finding that the proposed relocation did not have a reasonable purpose but remand the case to the trial court for a best interest determination as required pursuant to Tennessee Code Annotated § 36-6-108(e).

Du Sik Lee and Won Jae Lee v. Kenneth R. Davis and Linda P. Davis
W2006-01018-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Karen R. Williams

This is a breach of contract case. The defendants own a commercial building that was seriously damaged by a fire. The plaintiffs entered into a lease-purchase contract with the defendants to acquire the building at the expiration of a ten-year lease. Under the contract, the plaintiffs agreed to renovate the building from the fire damage, consistent with the local city building code and the defendant owners’ approval. After some renovations were made, prior to the expiration of the contractual repair period, the defendants deemed the renovations to be not in compliance with the city code and disapproved them. The defendant owners then declared the plaintiffs to be in breach of the contract and repossessed the property. The plaintiff lease-purchasers sued the defendant owners for breach of contract, claiming that, at the time of repossession, the renovations were not yet completed and that they still had time under the contract to complete them. After a bench trial, the trial court determined that the plaintiffs had breached the contract because the renovations were not in compliance with the city code and did not meet the approval of the defendant owners. The plaintiffs now appeal. We affirm, concluding that the evidence does not preponderate against the trial court’s finding that the plaintiffs breached the contract by making repairs that were not in compliance with the applicable code; the fact that the contractual repair period had not yet expired is immaterial.

Roy Brewer v. Rochelle S. Piggee and heirs and next of kin of Sidney L. Piggee, deceased
W2006-01788-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor D. J. Alissandratos

This is a quiet title action. The plaintiff’s mother owned a parcel of real property. In 1977, the mother executed a deed, conveying the property to one of her sons. Two years later, the plaintiff and her four siblings filed a separate but related lawsuit to set aside the 1977 deed for fraud. In 1985, by court order, the trial court divested the son of sole ownership and created a trust; the son was appointed as trustee for the use and benefit of the mother’s grandchild and the grandchild’s minor children, until the youngest minor child reached the age of majority. In 1986, by court order, the trial court removed the son as trustee and substituted the grandchild in his place. Despite these orders, in 1994, the son executed a deed purporting to convey the property to a third party. In December 2001, the defendants obtained a deed to the property from a successor in interest to the son. Meanwhile, the youngest beneficiary of the trust reached the age of majority. The plaintiff later obtained a warranty deed to the property from the youngest beneficiary and a quitclaim deed from the trustee grandchild and her other four children. The plaintiff then filed this lawsuit and moved for judgment on the pleadings and/or summary judgment. The defendant answered, raising the defense of adverse possession, and filed a motion to dismiss, raising a defense under T.C.A. § 28-2-110. The trial court denied the defendant’s motion to dismiss and granted the plaintiff’s motion for judgment on the pleadings, finding that the 1985 and 1986 orders, as well as the deeds from the grandchild and her five children, established the plaintiff as the rightful owner. The defendant appeals. We affirm in part, reverse in part, and remand the case for further proceedings.

Dyersburg Suburban Consolidated Utility District v. The City of Dyersburg, et al.
W2006-01704-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor J. Steven Stafford

This appeal involves a dispute between a city and a rural water association as to which entity is entitled to provide water service to a proposed subdivision. The rural association has a defined service district in which it is empowered to provide water service, and most of the disputed property lies within the rural association’s boundaries. However, the city annexed the proposed subdivision and now claims that it has the exclusive right to provide water service to the property. The rural association argues that 7 U.S.C. § 1926(b), the Anti-Curtailment Provision of the Consolidated Farm and Rural Development Act, protects its service area and prohibits the city from providing water service to the property. The trial court granted summary judgment to the city, finding the federal statute inapplicable. For the following reasons, we affirm in part, reverse in part and remand for further proceedings.

Shanette Collier Chandler v. Kylan Chandler
W2006-00493-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge D'Army Bailey

This appeal arises from a custody dispute involving a minor child. The plaintiff mother filed a complaint for divorce against the defendant father. The parties entered into a marital dissolution agreement as to property and debt division, but they could not come to an agreement on custody for their three-year-old son. A trial was held on the custody and visitation issues. The trial court granted the divorce, named the mother the primary residential parent of the child, and gave the mother full decision-making authority for the child. The parenting plan adopted by the court allowed the father visitation on alternating weekends and holidays, and for four weeks each summer. The trial court awarded the mother the federal tax exemption for the child, as well as $1,500 in attorney’s fees that she incurred litigating the custody issue. The father appeals the trial court’s initial custody decision regarding visitation and decision-making, and the award to the mother of the federal tax exemption and attorney’s fees. We affirm in part, and reverse in part.

Ailene Toliver v. Bobby D. Wall, et al.
M2006-00910-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Laurence M. McMillan

Trial court ordered foreclosure on a deed of trust finding obligor failed to prove failure of consideration for the lien. We reverse.

Wayne Joiner v. Carole Carter, et al.
M2003-02248-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Marietta M. Shipley

A member of the Sumner County YMCA was terminated from membership in the organization because of inappropriate sexual comments he allegedly directed toward female staff members. He brought pro se lawsuits against numerous employees of the YMCA, first in United States District Court, claiming that their actions had violated his civil rights, slandered him, invaded his privacy, and caused him humiliation and embarrassment. The federal court dismissed his complaint for lack of jurisdiction. A subsequent complaint in the Circuit Court of Davidson County alleging substantially the same facts was also dismissed, for failure to state a claim for which relief can be granted. Undeterred, the plaintiff then filed a nearly identical complaint in the same court. The trial court dismissed the complaint on the basis of res judicata. We affirm the trial court.

Crystal Lashea Caldwell v. Joshua Randall Hill
E2007-00082-COA-R3-JV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge John A. Bell

Father and Mother entered into an agreed permanent parenting plan following their separation in 2004. In 2005, Father requested a modification of the plan to increase his co-parenting time with the parties’ daughter. The petition to modify was filed shortly after the trial court increased his child support from $30 per week to more than $100 per week, and also less than a week after his marriage to his longtime girlfriend. The trial court found that Father’s marriage and the fact that he had quit smoking marijuana were both material changes of circumstance, and that Father should receive equal parenting time with the child. Mother appeals. After careful review, we find that there has been no material change of circumstance justifying reconsideration of the parties’ parenting arrangement. Accordingly, we reverse the trial court’s modification of the parenting plan and remand.

James E. Goodale, et al. v. Charles Langenberg, et al.
W2003-01919-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Kay S. Robilio

Plaintiff purchasers sued Defendant sellers, real estate agent, and real estate company alleging intentional fraud and seeking rescission of a contract to purchase real property and punitive damages.  The matter was tried by a jury, which awarded Plaintiffs rescission of the contract and assessed punitive damages against Defendant real estate agent. The trial court further awarded Plaintiffs discretionary costs and attorney’s fees, which it assessed against Defendant sellers and real estate agent jointly and severally. The jury also determined real estate agent was an independent contractor and that Defendant real estate company was, therefore, not vicariously liable for punitive damages.  Plaintiffs and Defendant sellers subsequently entered into a confidential, sealed settlement under which Plaintiffs received a substantial partial refund of the purchase price and retained ownership of the real property. Defendant real estate agent appeals the award of punitive damages and the award of attorney’s fees. Appellant additionally asserts the post-trial settlement between Plaintiffs and Defendant sellers resulted in an election of damages as a remedy or, alternately, in accord and satisfaction of the judgment. Plaintiffs cross-appeal, asserting the jury verdict finding that Defendant real estate agent was an independent contractor is not supported by the evidence. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Morris Allen Ray v. Jean Ann Ray
M2006-02257-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge Muriel Robinson

Husband appeals the dismissal of his Complaints for Divorce. In a confusing series of pleadings created by Husband, his two separate Complaints for Divorce were dismissed. One was dismissed for failing to pay the filing fee and the other for procedural deficiencies. We affirm the dismissal of the matter in which Husband failed to pay the requisite filing fee. We, however, reverse the dismissal of the first Complaint for Divorce, which was dismissed for alleged procedural deficiencies, and remand for further proceedings.

John Ruff v. Raleigh Assembly of God Church, Inc.
W2006-01255-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Donna M. Fields

On remand pursuant to Tennessee Code Annotated § 27-3-128, the trial court awarded summary judgment to Defendant with respect to Plaintiff’s claim for assault. We affirm.

Smith Brothers, Inc. v. Union City Insurance Agency, Inc., et al.
W2006-02097-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Robert L. Childers

The trial court awarded summary judgment in favor of Defendants in this negligence action. We affirm.

Alvin King v. v. Shelby County Government Civil Service Merit Board
W2006-02537-COA-R3-CV
Authoring Judge: Judgy Holly M. Kirby
Trial Court Judge: Chancellor Arnold B. Goldin

This is the second appeal of a case involving the termination of a county employee. The petitioner was a deputy jailor for the County Sheriff’s Department. His employment was terminated because he failed to report an injured inmate. The county’s administrative board upheld the termination. The petitioner then filed a petition for writ of certiorari in the trial court. The trial court denied the writ, and the petitioner appealed. In the first appeal, the trial court’s order was vacated and the cause was remanded for reconsideration under the standard of review set forth in the Uniform Administrative Procedures Act, see T.C.A. § 4-5-322. On remand, the trial court entered a revised order, affirming the termination. The petitioner now appeals the revised order. We affirm, finding that the petitioner received a fair hearing before the administrative board and that the board’s decision was supported by substantial evidence.

In Re: Conservatorship of Gladys R. Burchard, and Public Guardian for the Elderly as Conservator for Gladys R. Burchard v. Ralph O. Burchard
E2006-01252-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor W. Frank Brown, III

Petitioner intervened in this action, averring that the conservator for her mother had died and asked that she be appointed conservator of her mother. The Trial Court appointed a successor conservator and ruled that petitioner had no standing to contest the conservatorship and to be appointed conservator since she was a non-resident of the State. On appeal, we affirm the Judgment of the Trial Court.

In Re: Estate of G. Wallace Creswell, Oral Ruth Creswell v. James Stewart Creswell
E2006-01741-COA-R9-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Hugh E. Delozier

In this Estate, the parties in open court announced the terms of settlement between them of the entire Estate. Appellant sought to set aside the settlement on the grounds of duress, but after an evidentiary hearing the Trial Court refused to set aside the settlement. On appeal, we affirm.

WATCO, a joint venture comprised of Wayne Todd and Wilson Holdings, LP v. Pickering Environmental Consultants, Inc., a Tennessee Corporation
W2006-00978-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge John R. Mccarroll, Jr.

The plaintiff, a real estate development company, conditionally agreed to purchase real property from a trustee bank if the bank first obtained a satisfactory “Phase I” environmental site assessment of the property. The trustee bank hired the defendant environmental consulting company to perform a Phase I environmental site assessment. After performing an assessment, the defendant prepared a report in which it represented that it had conformed with the applicable professional standard in its assessment, that it had not detected any hazardous materials or environmental concerns at the subject property due to current or past uses of the property, that it had not identified any significant environmental concerns in the surrounding area of the subject property, and that it did not recommend further environmental review of the subject property. The plaintiff purchased the subject property in 1995. During residential development of the subject property in 2004, the plaintiff discovered the remains of a municipal garbage dump which had previously existed adjacent to the subject property, and which extended under a portion of the subject property. The plaintiff had the garbage removed and the land filled, and development was delayed as a result. The plaintiff development company sued the defendant environmental consulting company, alleging professional negligence and negligent misrepresentation. A bench trial was held, and the trial court entered judgment in favor of the defendant. For the following reasons, we affirm.

Christy L. Taylor v. Randall Robinson, Jr.
M2006-00109-COA-R3-JV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Donna Scott

The mother of a twelve year old boy filed a petition to establish the paternity of the child. A DNA test confirmed that the man named in the petition was indeed the biological father, and he agreed to pay temporary child support during the pendency of the case. The mother asked the court to order the father to pay retroactive child support back to the date of the child’s birth, in accordance with the child support guidelines. After a hearing, the trial court decided that a deviation from the guidelines was warranted because of the mother’s failure to inform the father of his possible paternity prior to filing the legitimation petition. The court accordingly ordered that retroactive support be paid only from the date of the filing of the petition. We affirm the trial court, but remand this case so the court can state in its order the “the total amount of retroactive support that would have been paid retroactively to the birth of the child, had a deviation not been made by the court,”  as is required by Tenn. Code Ann. § 36-2-311(a)(11)(F).

Virginia Dell Person v. James R. Wilson, et al., and Coffee County, Tennessee, et al.
M2006-00873-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge John W. Rollins

This appeal arises from a two-car accident at the intersection of two county roads in Coffee County. The sixteen year-old driver of one of the two vehicles and his parents and sister, who were passengers in his vehicle, filed suit against the County for injuries they sustained in the accident, contending the County was at fault for failing to properly maintain the stop sign and vegetation at the intersection. The trial court attributed 50% of the fault to the County and 50% of the fault to the sixteen year-old driver. Because he was 50% at fault, the sixteen year-old driver was not awarded damages against the County; however, his parents and sister were awarded judgments against the County for 50% of their damages. On appeal, the County contends the parents are barred from recovering against it due to their negligence and negligent entrustment. The County also contends his sister was negligent for riding in the vehicle. We affirm.

Nanci I. Holden v. Paul D. Holden
E2006-00902-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jacqueline E. Schulten

This is a post-divorce case. Paul D. Holden (“Husband”) filed a petition against his former spouse, Nanci I. Holden (“Wife”), seeking to modify the parties’ residential parenting plan pertaining to their minor children. Around the same time, the Department of Children’s Services (“DCS”) received an anonymous referral regarding the children’s “safety and possible sexual abuse” at Wife’s residence. The trial court subsequently appointed a guardian ad litem for the children. The court found, as was recommended by the guardian ad litem, that Husband was entitled to more parenting time with the children. The court also found that there was no foundation for the complaint made to DCS regarding the children. The court ordered Husband to pay the fees of the guardian ad litem. Husband appeals that order. We affirm.

Charles Smith, Executor of the Estate of Ethel Rogers Smith v. Jerry Smith
E2006-01372-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor Thomas R. Frierson, II

The issue in this case is whether the trial court erred in denying the plaintiff’s Tenn. R. Civ. P.  60.02 motion for relief from judgment. Following a bench trial and judgment in favor of the defendant, a third party provided additional materials pursuant to an agreed discovery order, which were not previously disclosed to the parties before trial. The plaintiff filed a motion pursuant to Rule 60.02, requesting that the judgment be set aside based on this newly discovered evidence. The plaintiff also argued that the doctrines of equitable estoppel and judicial estoppel should be applied to grant relief from the judgment. The trial court denied the motion, and the plaintiff appealed. After careful review, we find that the trial court incorrectly applied the law in deciding on the plaintiff’s Rule 60.02 motion. Therefore, we vacate and remand.

Donna Funk v Target National Bank/Target Visa
E2006-02010-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Wheeler A. Rosenbalm

In this suit on a credit card debt, the Trial Court granted plaintiff summary judgment on the amount claimed. On appeal, we affirm.

Matthew Flory and Christi Flory v. John Arnold Fitzgerald
E2006-02077-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor John A. Turnbull

Plaintiffs purchased property from defendant by Warranty Deed which stated the property contained 15 acres. Plaintiffs subsequently learned in litigation with a neighbor over the boundary line, that the parcel only contained 10.66 acres. Plaintiffs then filed this action against defendant to recover damages and the Trial Court held that plaintiffs were entitled to damages under the warranties in the Deed in the amount of $6,660.00 for the shortage of acreage plus costs and the judgment they incurred in the boundary line dispute with their neighbor. On appeal, we affirm the Judgment of the Trial Court.