COURT OF APPEALS OPINIONS

C.R. Batts Const. v. 101 Construction Co., et al.
M2004-00322-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: J. S. Daniel
This appeal arises out of a breach of contract action filed by the plaintiff against the defendants. After a hearing, the trial court entered a judgment in favor of the plaintiff, awarding the plaintiff $24,260.11. Additionally, the trial court awarded the plaintiff pre-judgment interest in the amount of $5,579.82. The defendants have appealed to this Court. We affirm the judgment of the trial court.

Nina Noel vs. Harold Noel
W1999-02343-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: D. J. Alissandratos
This is a divorce case. The trial court granted the husband the divorce but ordered him to pay, inter alia, $8000 in child support arrearage, half of the wages owed to the former employees of the wife's new business, and court costs. The husband appealed. We reverse the trial court's holding that the husband should pay half of the wages of the wife's new business, since this is the wife's separate debt incurred after the parties separated, and affirm the remainder of the trial court's order.

Lydia Brewster vs. Dan Brewster
M2000-01174-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Leonard W. Martin
This appeal involves the trial court's denial of the father's visitation after entry of a final decree of divorce granting the parents joint custody of the two minor children. The father filed a motion to alter and amend the final decree of divorce and for visitation. The mother opposed visitation by the father because of alleged sexual abuse of their daughter. The trial court denied father visitation. The father has appealed. We amend the final decree, affirm the denial of visitation, and remand the case for further proceedings.

Amy Blankenship vs. Carl Blankenship
M2000-01483-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Russell Heldman
Husband appeals a final decree of divorce terminating a marriage of ten years, presenting issues regarding the trial court's finding of contempt, confiscation of his guns, alimony, division of marital assets and debts, and attorneys fees. We vacate in part, modify in part, and affirm as modified.

Billy Walker vs. State
W2000-03079-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
This is a medical malpractice action before the Tennessee Claims Commission. The Commission found that the evidence presented by the plaintiff was insufficient to establish that the defendant's employees failed to meet the required standard of care. The plaintiff appealed the decision of the Claims Commission, asserting that the Commission improperly reviewed medical sources not presented at trial. We affirm, finding that the Commission did not base its decision on information outside the record and that any such review was harmless error.

Pyamid Computers vs. Ben Gasparro
W1999-01784-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Roger A. Page
This case involves a business relationship between Pyramid Computers, Inc., and Ben Gasparro. Mr. Gasparro purchased computer equipment and related services from Pyramid for use in his businesses. Mr. Gasparro also sold Pyramid computers to his clients. Pyramid sued and alleged that Mr. Gasparro owed it $14,446.32. The trial court entered judgment for Pyramid in the amount of $11,989.32. Pyramid appeals, alleging that the trial court erred in reducing the amount it sought and that the trial court erred in denying prejudgment interest

Custom Built Homes, v. G.S. Hinsen Company, Inc.
01A01-9511-CV-00513
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Henry Denmark Bell

This appeal arises out of a dispute over the workmanship of residential renovations. The interior designer hired by the owner to undertake the renovations withheld final payment to the contractor who performed the work because the owner was dissatisfied with the renovations. After the contractor obtained a judgment against the interior designer in the Williamson County General Sessions Court, the interior designer perfected an appeal to the Circuit Court for Williamson County and filed a counterclaim against the contractor. Following a bench trial, the trial court dismissed the interior designer’s claims against the contractor and entered a judgment against the interior designer for the remaining balance of the construction contract. The interior designer has appealed. While the trial court erroneously concluded that the Contractor’s Licensing Act of 1976 prevented the interior designer from pursuing its claims against the contractor, we have concluded that the trial court reached the proper result. Accordingly, we affirm the judgment.

Randall Jordan vs. CSX Transportation, Inc.
M1999-01415-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Hamilton V. Gayden, Jr.
This is a suit by an employee against his employer, a railroad operator, under the Federal Employers' Liability Act. The employee alleged that he suffered injuries caused by chemical solvents used by the employer. Prior to trial, the employer made an offer of judgment under Rule 68 of the Tennessee Rules of Civil Procedure. This offer was refused. After the trial, the jury found that the employee failed to prove that his injuries were caused by the chemical solvents. The employer moved for an award of costs not included in the court clerk's bill of costs, under Rules 68 and 54.04 of the Tennessee Rules of Civil Procedure. The employee moved for a new trial. The trial court denied both parties' motions, and both parties appealed. We affirm the trial court's denial of both parties' motions.

R.G. Burnett vs. James Swafford & Rhonda Swafford
M1999-01648-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Billy Joe White
This appeal arises from an oral contract between a landlord and tenant. The plaintiff operated a grocery and leased a grocery store to the defendant for a period of ten years, pursuant to a written lease. The parties had a separate oral agreement in which the defendant agreed to buy the plaintiff's business. When the defendant vacated the property at the end of the lease, the parties disagreed as to whether the oral agreement included a purchase of the store equipment. The trial court found that the plaintiff had converted certain items belonging to the defendant, and entered a judgment in favor of the defendant for $5,000. We find that the trial court's decision is based on its determinations of credibility, and affirm.

Connie Harris and Danny Harris vs. Marriott, Inc., & Fibercare, Inc.
M1999-00096-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Russell Heldman
This is a slip and fall case. The plaintiff filed her complaint barely within one year of the injury, but did not cause process to issue until six months later. Both defendants moved to dismiss plaintiff's case as time-barred under the one-year statute of limitations. The trial court granted the motions. We reverse and remand, finding that under Rule 3 of the Tennessee Rules of Civil Procedure, the plaintiff can rely on the filing of her complaint to toll the statute of limitations so long as the plaintiff causes process to issue within one year of the filing of the complaint.

M1997-00241-COA-R3-CV
M1997-00241-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Carol L. Mccoy

Nicole Lei Rowe vs. Fred C. Rowe
M2000-01446-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Royce Taylor
In this divorce case, Wife appeals the final decree as to the trial court's determination that there was a $21,000.00 debt due Husband's parents and accordingly charged Wife with one-half of the debt in the division of marital property. We affirm.

Michael Holmes vs. Jennifer L. Wilson, et al
M1999-01087-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: John D. Wootten, Jr.
This is an appeal from an order granting summary judgment to Jennifer Wilson and Car City, Inc. The case arises from an automobile collision between a vehicle driven by Mr. Holmes and a vehicle driven by Ms. Wilson while in the course and scope of her employment with Car City. The vehicle Ms. Wilson was driving had been purchased by Car City from Cumberland City Dodge on the day of the accident. The accident was caused by a mechanical failure, causing Ms. Wilson to lose control. The trial court found that the defendants had made a reasonable inspection of the vehicle prior to the accident and granted summary judgment. Mr. Holmes appeals the standard of care applied by the trial court and the sufficiency of the evidence that a reasonable inspection was performed. Because the defendants owed only the duty to make a reasonable inspection of the vehicle, and the undisputed evidence establishes that a reasonable inspection was made, we affirm.

Charles Montague vs. Michael Kellum
E2000-02732-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Thomas J. Seeley, Jr.
In this legal malpractice action, the Trial Court granted summary judgment to the Defendant, Michael D. Kellum ("Defendant"). Defendant submitted a Rule 56.03 statement and the affidavit of an expert witness in support of his motion. Charles Montague ("Plaintiff"), did not file either a Rule 56.03 response or a contravening affidavit. Prior to deciding Defendant's motion, the Trial Court stayed Plaintiff's discovery until it decided Defendant's motion. Plaintiff, who is incarcerated, had previously served discovery requests upon Defendant which had not been answered. Plaintiff appeals. We vacate the judgment of the Trial Court.

Martin E. Walker v. Howard Carlton,
E2001-00171-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Thomas J. Seeley, Jr.

P.E.K. vs. J.M. & C.Y.M.
M2000-02737-COA-R10-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Jim T. Hamilton
This case involves an interstate battle between never-married parties over the custody of a six year old child. This court granted an interlocutory appeal so that we could determine whether the Wayne County Chancery Court has jurisdiction over the paternity and custody of this child and whether the temporary emergency custody order is valid. We hold that the Wayne County court has subject matter jurisdiction over paternity and custody matters, but that the temporary emergency custody order was invalid because the child was not present in this state and the facts alleged were insufficient to obtain such an order. We remand for a hearing on paternity and custody.

State, ex rel Candace West vs. Glen Floyd, Jr.
M1999-00334-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Russell Heldman
In this case, the appellant, having signed a Marital Dissolution Agreement later incorporated into a divorce decree, seeks by Rule 60 motion to have a portion of the decree dealing with the paternity of a child conceived while the parties were married, and born after the parties were divorced, voided as against public policy. Blood tests have conclusively excluded the man who the appellant had an extramarital affair with, as the father of the child. The trial court dismissed the appellant's petition pursuant to Tenn. R. Civ. P. Rule 41 motion. On appeal, we reverse the Chancellor, remand this case for further proceedings in conformity with this opinion, and order the appellee to undergo blood tests to determine the parentage of the child.

Heirs of Neil Ellis vs. Estate of Virgie Mae Ellis
M1999-00897-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: David Loughry
This is a will case. The wife, as the husband's conservator, sold the couple's real and personal property and deposited the proceeds into a joint checking account and into investments in the wife's name only. The husband died, and the wife died less than one hundred twenty hours later. Both of their wills devised all of their property to each other. The wife's will was admitted to probate. The husband's heirs moved the trial court to apply provisions of Tennessee's Uniform Simultaneous Death Act to equally divide the proceeds of the couple's jointly held property between the husband and wife's separate estates. The trial court denied the motion, holding that the Act did not apply and that sole ownership of the proceeds from couple's real property, which was held as tenants by the entirety, vested in the wife upon the husband's death. The husband's heirs appealed. We affirm, finding that sole ownership of the proceeds from the couple's jointly held real and personal property vested in the wife upon the husband's death. We also find that the husband and wife's devises of any individually owned personal property would both lapse and the property, or its proceeds, would remain in each spouse's separate estate. We remand the case to the trial court to determine whether any of the personal property was owned individually, whether any such property was sold, and if so, the value of the property.

In re All Assessments, Review of ad valorum Assessments of Public Utility Companies 1998
M2000-03014-COA-RM-CV
Authoring Judge: Judge W. Frank Crawford
On remand from the Supreme Court, this Court was instructed to consider the factual issue of whether the action of the Board of Equalization reducing the appraised value of public utility tangible personal property for tax year 1998 caused the ratio of such property's appraised value to its market value to be equal to the ratio for tangible personal property within each local jurisdiction that is appraised and assessed by local taxing authorities. We find that there is substantial and material evidence to support the Board's action in reducing the appraised value for the tax year 1998 and that it resulted in an equal ratio for locally assessed personal property.

James E. Swiggett vs. Carl R. Ogle, Jr., and J. Michael Kerr
E2000-01473-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: G. Richard Johnson
In this action for legal malpractice, the Trial Court ruled a prior suit filed by plaintiff and dismissed on the merits was res judicata to this action. We affirm.

Terry Yates vs. City of Chattanooga, et al
E2000-02064-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Howell N. Peoples
Chattanooga Police Officer Terry Yates filed a petition for certiorari in the trial court, claiming that he was denied due process in connection with an adverse employment decision. Yates, who was demoted from the rank of sergeant in 1994, sought reinstatement to his former rank. An administrator initially reinstated him, but subsequently rescinded the reinstatement. Yates claimed that the rescission was a "demotion," and, consequently, demanded a hearing before the defendant City Council for the City of Chattanooga ("the City Council"). Following a hearing, the City Council found that the administrator did not have the authority to reinstate Yates to his former rank. This being the case, the City Council found that there had been no "demotion" by virtue of the subsequent rescinding of the reinstatement. The trial court agreed with the City Council and dismissed Yates' petition. He appeals. We affirm.

Dept. of Children's Scvs. vs. M.A.D.
E2000-02501-COA-R3-JV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Thomas J. Wright
The State of Tennessee, Department of Children's Services ("Department") obtained temporary custody of the three minor children of M.A.D. ("Mother") after she was arrested and the children's father was already in jail. A Permanency Plan ("Plan") was developed which required Mother to take several affirmative steps in order to regain custody and provide an appropriate home for her children. When Mother failed to comply with the Plan, the Juvenile Court terminated her parental rights after concluding there was clear and convincing evidence that there had been substantial noncompliance by Mother with the Plan. The Juvenile Court also found clear and convincing evidence that the conditions which led to the children's removal still persisted and prevented the children's safe return to Mother, that there was little likelihood that these conditions would be remedied at an early date so that the children could be returned safely to Mother, and that continuing the parent/child relationship would greatly diminish the children's chances of early integration into a safe, stable and permanent home. The Juvenile Court also concluded there was clear and convincing evidence that termination of Mother's parental rights was in the best interests of the three children. Mother appeals the termination of her parental rights. We affirm.

Barbara Jean McCall v. Kevin Green
E1999-02827-COA-R3-CV
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Judge Shirley B. Underwood

This is an action where Kevin Green seeks to change custody of his son, Zachary Green, from Zachary's mother, Barbara Jean McCall. We find an order entered contended by Ms. McCall to be an agreed order was not in fact an agreed order, nor a valid one. We further find that the Trial Judge should have recused herself. We accordingly vacate the purported agreed order and direct that the Trial Judge recuse herself and another Judge be appointed by the Administrative Office of the Courts.

South Harpeth Farms, et al., v. Metropolitan Government of Nashville and Davidson County, et al.
M2000-00635-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

The Metropolitan Board of Zoning Appeals granted a special use exception to the Metropolitan Government of Nashville and Davidson County for the construction of a tower for a new emergency response system. The appellants, South Harpeth Farms, LLC, James A. Webb, III and William H. Freeman appeal the trial court's order. The trial court held that the granting of the special use exception was supported by material evidence and that the Board of Zoning Appeals did not act illegally, arbitrarily or fraudulently. The appellants appeal on the grounds that: (1) The Metropolitan Government of Nashville and Davidson County was not a proper applicant for a special use exception under the Metropolitan Zoning Regulations; (2) the Metropolitan Government of Nashville and Davidson County misrepresented to the Board of Zoning Appeals that the proposed site for the project was the only possible location for the radio tower; and (3) the Board of Zoning Appeals arbitrarily and capriciously granted the special use exception in the absence of any material evidence to support its decision. We affirm the decision of the trial court.

Donna Roxbury Breeding (Henson) v. Kenny Frank Breeding
M2000-00952-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Jim T. Hamilton

This is post-divorce custody dispute. In the original divorce decree, the mother was awarded custody of the parties' two minor children. Subsequently, when the mother was required to undergo brain surgery, the mother and father agreed, and the trial court ordered, that the father would have custody of the children until each child reached the age of twelve, at which point the child would decide with which parent he wished to live. After recovering from the surgery, the mother filed a petition to change custody citing, inter alia, the children's desire to live with her and the children's worsening behavior, which included running away from the father's home. The trial court denied the mother's petition, finding no material change in circumstances warranting a change of custody. From this order, the mother now appeals. We reverse and remand, finding that the trial court applied the incorrect standard in light of the prior agreed order.