COURT OF APPEALS OPINIONS

Rhonda Anderson vs. Lester Jarrett & Melinda Benson vs. Herman Harris
W2001-00484-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: J. Roland Reid
This is a child support case concerning jurisdiction to review certain administrative decisions rendered by the Department of Human Services. In its order, the juvenile court transferred the case, concluding that section 4-5-322 of the Tennessee Code placed jurisdiction with the "appropriate chancery court." Despite its order transferring the case, the juvenile court also decided the case on the merits and ruled that the State acted in contravention to section 36-5-905 of the Tennessee Code regarding the seizure of an obligor's assets. The court further concluded that section 36-5-905 was unconstitutional. We reverse the trial court regarding its jurisdictional determination and hold that the trial court erred by reaching the constitutional issue

Melvin Bonds Jr. vs. Mike Emerson
W2001-00812-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Clayburn L. Peeples
This is a personal injury case arising from an automobile accident involving a sixteen-year old driver and a police officer. Officer, who was responding to a backup call, was allegedly driving 99 m.p.h. when driver pulled out of driveway. In a bench trial, the trial court found driver 80% at a fault for the accident and the officer 20% at fault. Driver has appealed. Judgment vacated and remanded.

Lance Morris vs. Collis Foods
W2001-00918-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Roger A. Page
This appeal involves a suit against a restaurant for a tort committed by a waitress. The appellant visited the restaurant on a crowded night. After the appellant's first waitress quit, another waitress took appellant's order. Following a long wait for his food, the appellant approached his waitress and words were exchanged. The waitress threw an object at the appellant, which caused injures. The appellant filed suit against both the restaurant and waitress. The relevant portion of the appellant's suit against the restaurant relied on the doctrine of respondeat superior. The court granted a motion for summary judgment filed by the restaurant, holding that the waitress was not acting within the scope of her employment. For the following reasons, we affirm.

Nora/Sylvester Eddings vs. Sears
W2001-01107-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert A. Lanier
This appeal involves a personal injury and allegations of promissory fraud stemming from a display bed collapsing at the defendant's department store. The plaintiffs spoke with the defendant's claim adjustor following the incident and were allegedly assured that medical bills would be paid by the defendant or that the claim would be "concluded." The plaintiffs, however, were informed by the defendant's claims adjustor approximately one year after the accident that the defendant held no liability due to the lapse of the statute of limitation. The plaintiffs sued the defendant for both personal injury and promissory fraud. Both claims were eventually defeated before a trial could be held and the plaintiffs appealed. We affirm.

Paul Nee vs. Big Creek
W2001-01482-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: George H. Brown
This is a premises liability action. Plaintiff alleges he was injured in a fall that took place on Defendant's steps. At trial, Plaintiff introduced pictures of the steps into evidence and testified that he heard a "crackling noise" as his "foot began to slide." After considering Plaintiff's evidence, the trial court granted Defendant's motion for a directed verdict. The trial court determined that Plaintiff failed to introduce evidence that the stairs constituted a defective or dangerous condition. Further, the trial court ruled that the jury would be forced to speculate on the cause of Plaintiff's fall. We affirm the decision of the trial court.

Ida Douglas, et al. v. William Foster, et al.
M2000-03177-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol A. Catalano
The appellants, Ida Douglas and Dovie Allen, and appellees, William and Barbara Foster, entered into a contract for the sale of a house. After the buyers had lived in the house for a few years, several problems emerged. The buyers sued the sellers for rescission of the contract. The trial court granted the sellers' motion for involuntary dismissal after the presentation of the buyers' proof at trial. We affirm the decision of the trial court.

Johnson vs. CCA
W2001-00595-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Jon Kerry Blackwood
This is an appeal from an order of the trial court granting a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. We reverse in part and affirm in part.

03-98-005-CC
03-98-005-CC
Trial Court Judge: A. Andrew Jackson

Stacey J. Stanley v. Daniel Ring,
W2001-00950-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: William Michael Maloan

Sears Roebuck vs. William Riley
W2001-01981-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Rita L. Stotts
This appeal arises from the filing of a civil warrant by the Appellee against the Appellant in the General Sessions Court of Shelby County. The Appellee alleged that the Appellant owed on an account in the amount of $3,345.56. The trial court entered a judgment in favor of the Appellee. The Appellant appealed the judgment of the general sessions court to the Circuit Court of Shelby County. The Appellee filed a motion for summary judgment. At the hearing on the motion for summary judgment, the Appellant stated that he did not oppose the motion for summary judgment. The trial court entered an order granting summary judgment in favor of the Appellee. The Appellant appeals the order of the Circuit Court of Shelby County granting summary judgment in favor of the Appellee. For the reasons stated herein, we affirm the trial court's decision.

Michael Casby vs. Theresa Hazlerig
W2001-02073-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Joseph H. Walker, III
This appeal involves a custody and visitation dispute brought by divorced parents having joint custody of their two children. Following the submission of numerous filings by the parties, the court held a hearing to determine whether or not to alter the custody arrangement set out in the court's final decree. As a result of the hearing, the court issued an opinion and permanent parenting plan which altered the previous visitation agreement by naming the father primary custodial parent and granting the mother limited visitation rights. The court further ordered the mother to pay child support in accordance with the guidelines. The mother appealed and, for the following reasons, we affirm the decision of the trial court.

Shepard Barbash vs. Monty Bruell & Anthony Smith
E2005-00387-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Howell N. Peoples

Terry Hicks v. Donal Campbell
M2001-00280-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Irvin H. Kilcrease, Jr.
This appeal involves a prisoner disciplinary proceeding at the Hardeman County Correctional Facility. A prisoner filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County seeking judicial review of a prison disciplinary board's finding that he was guilty of "conspiracy to violate state law." Two of the seven respondents named in the petition filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss. The trial court granted the motion, and the prisoner perfected this appeal. We have determined that the appeal should be dismissed because the order being appealed from is not final and does not comply with Tenn. R. Civ. P. 58.

State v. Tamberley Daniels
M2001-00624-COA-R3-JV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Samuel H. Smith
The non-custodial parent of two minor girls appeals the decision of the Juvenile Court of Hickman County terminating her parental rights on the grounds of willful abandonment. We affirm the action of the trial court.

In The Matter Of: S.G.S.
M2001-00649-COA-R3-JV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Clara W. Byrd
The trial court terminated the parental rights of the biological father on the ground of abandonment, and granted the adoption petition of the stepfather. The biological father argues on appeal that he did not abandon his child. We affirm the trial court.

First Union National Bank v. Donald Abercrombie
M2001-01379-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Russell Heldman
This appeal involves a dispute stemming from a defaulted note. The lender filed suit against the purported borrower in the Chancery Court for Williamson County asserting that he was liable for $57,778.20. The defendant moved to dismiss the complaint on the ground that he was not personally liable on the note because he was simply an officer of the corporation named as the borrower on the note and because he was not a guarantor of the corporation's debts. Thereafter, the lender moved for a default judgment, and the purported borrower then filed an answer denying liability on the note and a counterclaim against the lender for compensatory and punitive damages. The trial court granted the lender a default judgment for $57,778.20 without addressing the pending motion to dismiss or the answer and counterclaim. We have determined that the trial court erred by granting the default judgment and, accordingly, reverse the judgment and remand the case for further proceedings.

In the Matter of: D.D.V.
M2001-02282-COA-R3-JV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Barry Tatum
The State filed a petition to terminate parental rights to a four-year-old boy. Only the mother contested the action. The trial court granted the petition, terminating the mother's parental rights on multiple grounds, including abandonment and failure to comply with a plan of care. We reverse as to the mother, because we do not believe any of the grounds were proven against her by clear and convincing evidence, as is required by statute.

Melissa Combs Cranston v. Edward Scott Combs
02101-COA-R3-CV
Trial Court Judge: Catalano

Juliann Morando v. William McGahan
M2000-01551-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Charles B. Tatum
This appeal arose after the trial court made its final determination on issues involving the support of the parties' minor child. Mother petitioned the trial court to establish parentage, to be awarded custody of the parties' child, and to establish other issues regarding the care of the child. At trial, Father conceded paternity and did not contest the custody issue. In making its child support award, the trial court based its decision on Father's new found employment. The court also set a payment schedule for the child support arrearage, determined that Father should claim the child as a dependent for tax purposes, split medical costs associated with the child's birth, and refused to award mother filing fees and attorney's fees. Mother contends that Father is voluntarily underemployed for purposes of child support and challenges several other decisions of the trial court. We reverse the court's decision in part, modify in part, affirm in part, and remand to the trial court for proceedings consistent with this opinion.

State Council of Tennessee, Junior Order of United American Mechanics v. William Boyd, et al.
M2000-01652-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Stella L. Hargrove
This case involves an action to quiet title between the state chapter of a national fraternal organization and the members of a local chapter. The organization's constitution provides that, upon the dissolution of a local chapter, all acquired property becomes the property of the state chapter. After receiving a letter from three officers of the local chapter expressing their intent to surrender its charter, the state chapter sent a letter to all known members of the local chapter calling a meeting to discuss the future of the chapter. At a second meeting, three members attended; two of the members abstained until a vote of the entire membership could be taken while the third member voted to remain dissolved. Thereafter, the state chapter announced that the local chapter was dissolved and ordered the local chapter to surrender its bank account and had the door to the lodge padlocked. The state chapter then brought a lawsuit to quiet title. The defendant members disputed that their chapter had been properly dissolved. The trial court held that the dissolution of the local chapter and surrender of the chapter's premises and bank account by its officers was improper, dismissed the state chapter's petition to quiet title and ordered the return of the surrendered funds. From this decision, the state chapter now appeals. We affirm.

Richard O'Leary, et ux. v. Ann Johnson, et al.
M2000-03110-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Tom E. Gray
This case involves a payoff of a loan secured by a deed of trust on real estate and the failure to release the deed of trust on the record. In connection with a refinancing by the property owner, the title company closing agent issued a check to pay off the existing loan secured by a deed of trust. The check-payees, husband and wife, failed to negotiate the check and did not release the deed of trust. Some ten years later, after the death of the husband, the wife-payee found the check in her husband's files, and her attempt to negotiate the check failed because the account on which it was drawn was closed. She duly notified the title company closing agent, but it refused to reissue the check. Some three years later, the owners of the property tried again to refinance their loan, and in examining the title, it was discovered that the deed of trust, which presumably had been paid off, had not been released. The property owners filed suit against the title company closing agent and the holder of the note secured by the unreleased trust deed. The holder of the note filed a counter-claim against the property owners and a cross-claim against the title company closing agent. After a nonjury trial, the trial court awarded plaintiffs judgment against the title company closing agent for the amount of the payoff check issued to pay the previous loan and dismissed the cross-claim against the title company. The holder of the previous loan was awarded a judgment against the property owners for the amount of the principal balance due, plus attorney fees. The title company has appealed. We vacate in part, modify and affirm as modified.

Buster Chandler v. Don Sundquist
M2001-00274-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Walter C. Kurtz
A Kentucky prisoner filed suit in a Tennessee court, claiming that he was entitled to be pardoned so that he could stand trial for murder in this state. The trial court dismissed his complaint for failure to state a claim for which relief can be granted. We affirm.

Mallory Valley Utility District v. Jeffrey Cantwell, et al.
M2001-00627-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Russell Heldman
The Trial Court dismissed plaintiff's condemnation action on grounds that the taking was arbitrary and capricious. On appeal, we vacate and remand for an evidentiary hearing.

Mohammad D. Hussain v. Grange Mutual Casualty
M2001-00658-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Walter C. Kurtz
Homeowners, unsatisfied with repairs to their home following a fire, sued their insurance company, the contractor who performed repairs on their home, and another contractor who removed personal property for cleaning and repair. The homeowners settled their claims against the insurance company and, on the day of trial, voluntarily dismissed their claims against the contractor for cleaning of their personal property. The trial proceeded upon their claims against the contractor who repaired the fire damage in their home, and the trial court entered a judgment for $650.00 in favor of the homeowners. Because the appellate record includes no record of the evidence taken at trial, we must presume the trial court's findings were supported by the record. Accordingly, we affirm the trial court's judgment.

In Re: William Harris Epps
M2001-01336-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol A. Catalano
The conservators and sons of Mr. Epps appeal the trial court's decision to award to Mr. Epps's wife one-third of the proceeds from the sale of a house owned by Mr. Epps but used as the marital residence during the marriage of over ten years. We affirm the decision of the trial court.