COURT OF APPEALS OPINIONS

State of Tennessee, ex rel., Woody M. Hartley v. Jennifer L. Robinson
M2000-01625-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Muriel Robinson

After divorce, Husband was ordered to pay child support to Wife for care of his minor children. Husband was employed as a commercial truck driver by Company. Thereafter, Husband was diagnosed with seizure disorder that required medication to treat. As a result, Husband lost his commercial trucking license as mandated by Federal Regulations. Upon losing his job as a commercial truck driver, Husband accepted a warehouse position with Company for considerably less money. He petitioned the court for a reduction of child support commensurate with his lower salary. The trial court found that he was underemployed and denied the reduction. Husband appealed. Although he failed to submit a transcript or statement of the evidence in the record, the trial court's order contains stipulated facts. We reverse and remand for entry of order reducing child support.

Jerry T. Beech Concrete Contractor, Inc. v. Larry Powell Builders, Inc., et al
M2000-01704-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This is an action by a contractor to receive the balance due under a contract for the construction of two buildings. The owner counterclaimed for damages alleging lack of good workmanship. A principal issue concerned attorney fees, and whether a document purporting to be a contract was, in fact, a contract. We hold that the document proffered by the plaintiff was accepted as a contract by the defendant, and that the attorney fee provision is enforceable.

Tommy Burgess, et al., v. Bill Fuller, D/B/A Bill Fuller Landscaping
M2000-02094-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge Robert L. Holloway

In this dispute over a landscaping contract, the Circuit Court of Maury County held that the contractor breached the agreement. The defendant contends that the court rewrote the agreement. We disagree and affirm the judgment of the trial court.

The John Lee Co., Inc. v. Lamar Haynes, et al.
M2000-02407-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

The plaintiff, a manufacturers' representative, filed this action for a declaratory judgment that it is not indebted to the defendant for commissions on sales of tee shirts manufactured by Tee Jays Manufacturing Company and sold to Planet Hollywood, in light of the fact that the defendant's sole participation was to arrange a meeting between buyer and seller. The Chancellor found the plaintiff was liable for the commission under a contract theory. We affirm.

Don Stonecipher v. Estate of M.E. Gray, Jr., et al
M1998-00980-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Robert L. Jones

This is an appeal from a chancery court jury trial on a dispute arising from a contract to buy a wrecker and salvage yard business for 1.1 million dollars. The purchaser alleged that the seller fraudulently induced him to contract to buy the business because after the parties reached an agreement on the purchase, the seller took items contemplated to be included in the contract without the buyer's knowledge. On the other hand, the seller's estate asserted a breach of contract claim because the note's balloon payment was overdue. After a trial, the jury decided that the seller had concealed or withheld items that the parties contemplated to be part of the contract, that the seller made misrepresentations as to what was to be included in the contract, he knew the misrepresentations were false at the time made, and he intended the buyer to rely on the misrepresentations. The jury decided that, had the buyer known the items were missing, he would not have declined to enter into the purchase at all but, instead, would have negotiated a lower price. Therefore, the court entered a verdict dismissing the buyer's complaint for rescission, awarded him a set-off and entered judgment against him for the balance of the note plus interest minus the set-off. Costs were apportioned between the parties and each party was ordered to pay its own attorney's fees. Both parties appeal. For the reasons below, we affirm the judgment of the trial court in part, vacate in part, and remand.

Murray E. Body v. Jim Lamarr
M2000-02111-COA-R9-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Arthur E. McClellan

Murray E. Body ("Plaintiff") filed this personal injury suit against the owner of a jet ski, Jim Lamarr ("Defendant"). Plaintiff sustained physical injuries while pulling ski ropes into his boat when Defendant's jet ski ran over Plaintiff's ski ropes. Plaintiff had a boating policy ("Policy") with Continental Insurance Company ("Continental") which had uninsured boater limits of $100,000. Defendant had a liability policy with limits of $50,000. Plaintiff contends that his damages exceed Defendant's limits and that his Policy should be interpreted to provide coverage for accidents involving underinsured boaters. Continental filed a Motion to Dismiss, arguing that the Policy's language clearly and unambiguously does not provide coverage for underinsured boaters. The Trial Court treated Continental's motion as a Motion for Summary Judgment and granted the motion. Plaintiff was granted an interlocutory appeal. We affirm.

First American Trust Co. v. Franklin-Murray Development Company, L.P.
M1998-00984-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Henry Denmark Bell

This appeal involves a post-judgment receivership proceeding commenced while the case was pending on appeal. The seller of a large tract of Brentwood property obtained a judgment against the defaulting purchaser in the Chancery Court for Williamson County. While the purchaser's appeal was pending, the seller proceeded to execute on its judgment and requested the trial court to appoint a receiver to protect the interests of the purchaser's creditors. After the trial court appointed a receiver, the purchaser's former law firm filed a claim with the receiver for over $100,000 in unpaid legal expenses. When the seller's judgment against the purchaser was satisfied outside of the receivership proceeding, the trial court granted the receiver's motion to dissolve the receivership without addressing the law firm's claim. The law firm asserts on this appeal that the trial court should not have closed the receivership until its claim was addressed. We have determined that the trial court lacked jurisdiction to establish the receivership and, therefore, that the receivership proceedings were null and void. Accordingly, the trial court did not err by declining to address the law firm's claim in the receivership proceeding.

Valerie Jean Spivey, et al., v. Sumner County, Tennessee, et al.
M2000-00771-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Arthur E. McLellan

Plaintiffs in this matter have alleged that their employment was terminated in violation of Tennessee's Public Protection Act, Tennessee Code Annotated section 51-1-304. The trial court ruled in favor of Defendants' Motion for Summary Judgment and dismissed this case in its entirety finding that all three Plaintiffs had failed to prove that their termination was based solely on "whistle blowing". We affirm the trial court's decision in this regard.

Bowdoin Grayson Smith v. Ginger Lee Marenchin Smith
M2000-01094-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Charles K. Smith

This is the second appeal regarding the setting of the amount of the father's child support obligation for four children. In the earlier appeal, this court remanded for a determination of the father's actual net income and his corresponding child support obligation. On remand, the trial court in early 2000 based its award of prospective support on an average of father's income in 1992 through 1995 and established the father's back support based on that figure. We find that the prospective award should be set on the most current income figures, but that an average of the most recent years is appropriate. We also find that the amount of back child support should be computed using actual income for the intervening years. Because the record does not contain sufficient information regarding challenged deductions from gross income for the years now at issue, we remand for an evidentiary hearing on the father's income in the years since the divorce in 1996, and a redetermination of both prospective and back support. We affirm the denial of prejudgment interest.

Tammy Jewell Robertson v. Walter Scot Robertson
M1999-02103-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Thomas W. Graham

This appeal involves a dispute over the division of a marital estate following a marriage that lasted approximately two and one-half years. Both parties sought a divorce on the ground of inappropriate marital conduct in the Circuit Court for Franklin County. During a bench trial lasting two days, the parties stipulated that they both had grounds for divorce but hotly contested the classification, valuation, and division of their marital and separate property. The trial court declared the parties divorced and divided their property without clearly classifying or placing a value on it. On this appeal, the wife asserts that the trial court erred by considering the husband's contributions to the marital home as his separate property and that the net division of the marital estate was inequitable. Despite the ambiguity resulting from the trial court's failure to classify and value the parties' property, we have determined that the trial court's division of the martial estate was essentially equitable.

Paul David Crews, et al., v. Hooters Restaurant of Nashville, Inc., et al.
M1999-02813-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Barbara N. Haynes

This appeal involves two shootings during an attempted armed robbery of a restaurant, that left one man dead and one man wounded. The parents of the deceased victim and the wounded victim and his wife filed suit in the Circuit Court for Davidson County against the restaurant and the persons who attempted to rob the restaurant, alleging that the restaurant had negligently failed to use reasonable care to protect its patrons from foreseeable harm. The trial court granted the restaurant a summary judgment and dismissed the negligence claim against it. The plaintiffs, relying on McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891 (Tenn. 1996), assert on this appeal that the trial court erred by granting the restaurant's summary judgment motion. We concur with the trial court's conclusion that the material facts are not in dispute and that the restaurant is entitled to a judgment as a matter of law because it demonstrated that the plaintiffs would be unable to prove an essential element of their case. Accordingly, we affirm the trial court's order dismissing the claims against the restaurant.

Julia Crews vs. Buckman Lab
W2000-01834-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: D'Army Bailey
Plaintiff, attorney employed in legal department of corporation, sued the corporation for retaliatory discharge. Plaintiff alleges that she was discharged in retaliation for her reporting her superior, general counsel of the corporation, for the unauthorized practice of law, because her supervisor was unlicensed in the State of Tennessee. The trial court dismissed plaintiff's complaint pursuant to Tenn.R.Civ.P. 12.02(6) for failure to state a claim upon which relief can be granted. Plaintiff appeals. We affirm.

Walter Chandler vs. Canale & Co.
W2000-02067-COA-R3-CV
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Floyd Peete, Jr.
Plaintiff appeals from a grant of summary judgment in favor of the defendants. The complaint alleged the plaintiff had a partnership with the defendants and accused the defendants of breach of contract. The trial court granted summary judgment for the defendants on the basis of judicial estoppel, concluding the plaintiff had previously testified under oath in prior litigation that he had no ownership interest in the business. We affirm the judgment of the trial court.

Jeffrey Butler vs. City of Jackson
W2000-02154-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Donald H. Allen
This case is before the court for the second time. Defendant was tried in city court for violation of five separate city ordinances and was fined a total of $250.00 for the five violations. After a de novo trial in circuit court, defendant was found guilty of violating the five separate ordinances and was fined a total of $250.00. This Court reversed the conviction on two of the five ordinances and affirmed the convictions on three of the ordinances. The case was remanded to the trial court to determine the amount of fine for the three violations. On remand, the trial court assessed fines totaling $750.00, being $250.00 for the violation of each of the three ordinances. Defendant has appealed. We reverse the trial court and set defendant's fine at $250.00 for violation of the three city ordinances.

Cathy L. Allen v. John Fox Allen, Jr.
CH-00-0092-3
Trial Court Judge: D. J. Alissandratos

Cassie Gilliland vs. Billy Pinkley
W2000-00982-COA-R3-CV
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Roy B. Morgan, Jr.
Plaintiffs appeal from a grant of summary judgment in favor of defendant Vision Care Properties, Inc., and the refusal of the trial court to subsequently grant relief under Tenn. R. Civ. P. 60.02. The complaint alleged that the minor child, Cassie Gilliland, was attacked and injured by a vicious dog owned by, and kept at the home of, defendant Billy Ray Pinkley, which residence was leased to Pinkley by defendant Vision Care Properties, Inc. Subsequent to the grant of summary judgment, plaintiffs sought Rule 60.02 relief based upon an affidavit of Pinkley which was inconsistent with his prior affidavit. We affirm the trial court in all respects.

Roy Anderson Corporation v. Westchester Fire
W2000-01489-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert A. Lanier

Patrick Joseph Edgin vs. Valentina Paulovna Edgin
M2000-02122-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Jim T. Hamilton

Eddie Joe Hurst, Sr. vs. Sheila Gail Williams Hurst
E2000-00458-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: William R. Brewer
This appeal from the Blount County General Sessions Court concerns whether the Trial Court erred in dismissing the Complaint to Enforce Judgment filed by the Appellant, Sheila Gail Williams Hurst. Ms. Hurst appeals the decision of the General Sessions Court. We reverse the decision of the Trial Court and remand for further proceedings, if any, consistent with this opinion. We adjudge cost of the appeal against the Appellee, Eddie Joe Hurst, Sr.

In re: Estate of Lester Doyle and Estate of Edgar Doyle vs. William Hunt
M1997-00179-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Frank G. Clement, Jr.
The beneficiaries of the Edgar J. Doyle estate and trust petitioned the court for removal of the executor/trustee of the estates and trusts of Lester Hill Doyle and Edgar J. Doyle for, inter alia, failure to timely file the required inventories and accountings of both estates. Finding that the executor/trustee breached his fiduciary duty, the trial court removed the executor/trustee and appointed a third party not nominated in either will as the successor executor/trustee in both estates. The executor/trustee alleges error with his removal without an evidentiary hearing and the court's appointment of the successor trustee. We reverse.

Woodrow Wilson vs. Sentence Information Services, et al
M1998-00939-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Irvin H. Kilcrease, Jr.
This otherwise routine dispute over sentence reduction credits raises a seldom-considered point of procedure regarding the proper method for deciding contested facts at the preliminary motion stage. A prisoner filed suit in the Chancery Court for Davidson County against the Tennessee Department of Correction and other state and city officials asserting that he had not been awarded sentence reduction credits allegedly earned while incarcerated in the Davidson County Criminal Justice Center. After the Department filed a Tenn. R. Civ. P. 12.02(1) motion to dismiss on the ground that the prisoner had not exhausted his administrative remedies, the prisoner asserted that he had exhausted all of the remedies available to him from the Department. After considering the arguments and evidentiary materials submitted by both parties, the trial court concluded that the prisoner had not exhausted his administrative remedies and dismissed the suit. On this appeal, the prisoner asserts that the trial court erred when it concluded that he had not exhausted his administrative remedies. We have determined that the evidence regarding the prisoner's exhaustion of his administrative remedies does not preponderate against the trial court's conclusion. Accordingly, we affirm the dismissal of the suit.

Billy Crowe, et al vs. Maury County, et al
M1999-02377-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert L. Holloway
This appeal arises from the purchase of part of the Appellees' property by the Appellant. The Appellees filed a complaint against the Appellant in the Circuit Court of Maury County, alleging trespass, material misrepresentation of fact or mutual mistake of fact, inverse condemnation, and unauthorized use of property. The Appellant filed a motion to dismiss. The trial court granted the motion on all counts but the inverse condemnation claim. Following a jury trial on the inverse condemnation claim, the jury found in favor of the Appellees in the amount of $12,000.00. The Appellees filed a motion for attorney's fees with the trial court, seeking $29,116.29. The trial court awarded the full amount of attorney's fees requested. The Appellant appeals the award of attorney's fees by the Circuit Court of Maury County. For the reasons stated herein, we remand this case for further findings of fact.

Travelers Indemnity Co. vs. Kenton Freeman, et al
M2001-00657-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Travelers Indemnity Company [Travelers] filed a complaint for a declaratory judgment respecting its liability to pay UM coverage for the minor child of its policyholder who was divorced from the child's mother, with joint custody having been awarded. Mother was killed in a traffic accident in Alabama; her passenger child was injured. Mother owned and was driving her automobile, and she also had UM coverage. The adverse driver had split liability coverage all of which was paid, in equal parts, to the Administrator of the mother's estate, and to the minor child. Mother's UM carrier paid its entire policy proceeds to her administrator. Travelers objected, inter alia, to the lack of allocation of the proceeds of mother's UM coverage. Travelers' insured, on behalf of his minor child, filed a counter-claim against Travelers for the entire UM coverage, notwithstanding an amount certain had never been determined. The court found that Travelers had never disputed that the value of the minor child's claim exceeded the UM coverage and rendered a summary judgment against Travelers for an amount certain. We vacate and remand.

Eric Young v. Dept. of Corrections
M2002-01086-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Ellen Hobbs Lyle
A prison inmate was convicted of a disciplinary offense, and sentenced to punitive segregation. He filed a Petition for Writ of Certiorari, claiming there were serious procedural defects in the disciplinary proceeding. The trial court dismissed his Petition as time-barred. We affirm the trial court.

Robert Wilson, Jr. vs. Martha Wilson
E2000-01181-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: William R. Brewer
In this post-divorce case, the trial court (1) denied the father's request to relocate to Georgia with the parties' minor child; (2) imposed sanctions for the father's perjury; and (3) changed the joint custody decreed at the time of the divorce to sole custody in the mother. On this appeal, the father argues (1) that the trial court erred in reversing its initial post-divorce decision pursuant to which the father had been permitted to relocate to Georgia; (2) that the trial court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act to make a custody determination; (3) that the trial court should have declined to exercise jurisdiction on the ground of inconvenient forum; (4) that the trial court erred in basing its change of custody upon the father's admittedly false testimony; (5) that the trial court's reversal of its prior decision to permit the father to relocate is barred by the doctrine of laches; (6) that the trial court erred in finding that father's contemptuous behavior was a proper basis for denying him an award of child support; and (7) that the trial court abused its discretion when it imposed sanctions for criminal contempt without providing the necessary procedural safeguards. We find that the trial court erred in dismissing Father's petition for child support. In all other respects, we affirm the judgment of the trial court.