COURT OF APPEALS OPINIONS

Servpro Industries, Inc. vs. Stephen Pizzillo
M2000-00832-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Arthur E. Mcclellan
The trial court granted all of a franchisor's claims against its former franchisee, and dismissed all the franchisee's counterclaims. Among other things, the court found that after the expiration of his franchise, the franchisee had entered into a competing business, in violation of an enforceable non-compete clause in the franchise agreement, and enjoined the franchisee from any further violations. We affirm.

Deborah Harvey vs. Felipa Covington, d/b/a Choice Corporate Training Int'l.
M2000-01184-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Carol L. Soloman
This appeal arises from a business dispute between the parties. Businesswoman and Investor signed letter of intent to create limited liability company. Business then began operation. Thereafter, several operational disputes arose between the parties, as well as disputes over Businesswoman's use of Business funds. The trial court determined that Businesswoman had defrauded Investor of invested funds and awarded Investor those funds. Investor was also awarded back pay promised by Businesswoman through Business. We find that a partnership agreement existed between the parties and reverse the trial court's judgment. The case is remanded for rescission of the partnership on the basis that it was created under fraudulent circumstances. The trial court's decision to deny attorney's fees requested by Businesswoman is affirmed.

J.W. Hargrove, et al vs. Larry Carlton, et al
M2000-00250-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Russell Heldman
After the defendant landowners placed gates across a roadway that ran through their land, some adjoining landowners filed suit to have the gates removed. The plaintiffs argued that the roadway was a public road, or in the alternative that they had acquired prescriptive rights to use it. The trial court ruled for the defendants. We affirm.

County of San Mateo, California vs. Murray Green, Sr.
M1999-00112-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Jim T. Hamilton
Appellant appeals the enforcement of a 1983 California judgment for reimbursement for public assistance provided to his children through 1982. Because the judgment expired under the applicable statutes of limitation in both California and Tennessee before this enforcement action was brought, we find that Appellant had a vested right in that defense and reverse the trial court's judgment.

Ginger Vooys vs. Robert Turner, Jr.
M1999-00504-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Walter C. Kurtz
The sole issue presented in this appeal is the propriety of the trial court's award to Wife of postjudgment interest on funds Husband deposited in the office of the clerk of the trial court prior to the appeal of the final order divorcing the parties. The funds represent the purchase price of the marital residence which had been awarded to Wife. Exercising an option to purchase the house, Husband deposited $185,000 with the court clerk and tendered it in open court. Then Husband appealed various portions of the final order, including the award of the house to Wife; he also moved to stay the execution and enforcement of that and other portions of the judgment without paying a bond on the ground that the funds he had already deposited should relieve him of the necessity of posting an additional bond. The motion also requested that the funds be placed in an interest bearing account. The stay of execution was granted, but the motion to deposit at interest was never ruled upon. After the trial court's judgment was affirmed on appeal, Wife filed a motion seeking interest on all money judgments rendered against Husband. The trial court found that Wife was entitled to postjudgment interest on the $185,000. Husband then commenced this appeal. We affirm.

Linda Asher vs. Eugene Asher
E2000-00821-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John D. Mcafee
In this appeal from the Claiborne County Chancery Court the Appellant, Linda Ward Asher, questions whether the Chancery Court erred in granting her an absolute divorce, in failing to award her alimony in futuro, and in failing to require that the Appellee, Eugene Asher, be required to maintain health insurance coverage on her behalf. Mr. Asher questions whether the Chancery Court erred in finding that funds withdrawn by him from a Putnam Investment savings account should be counted against his equitable share of the marital property and in finding that Ms. Asher should be awarded alimony. We affirm the judgment of the Chancery Court as modified and remand for further proceedings, if any, consistent with this opinion. We adjudge costs of this appeal against the Ashers equally.

In Re: JJC
E2000-01223-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Daryl R. Fansler
The Trial Court terminated the father's parental rights. Father argued below and on appeal, that the part of the UCCJA which gave the court jurisdiction of the matter is unconstitutional. We affirm.

First Citizens Bank of Cleveland vs. Carol Cross
E2000-01325-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jerri S. Bryant
This is the second time that this case has been before us on appeal. The case originated as a suit on two promissory notes executed by the defendant in favor of the plaintiff and secured by deeds of trust on real property owned by the defendant. The defendant filed a pleading incorporating a counterclaim, and a third-party complaint against one of the plaintiff's employees, which pleading alleges that the plaintiff, through its employee, breached its undertaking to arrange for additional insurance coverage on the mortgaged property. On the first appeal, this Court held that the trial court erred in denying the defendant's request for a jury trial. On remand, the plaintiff and the third-party defendant moved for summary judgment on the ground that the parol evidence rule bars consideration of the defendant's claim that the plaintiff, through its employee, agreed to contact the agent for the insurance company and arrange for additional insurance on the mortgaged property. The trial court granted the movants summary judgment and, upon confirmation of a Master's report as to the amounts due under the notes, entered a judgment against the defendant. The defendant appeals. We affirm the trial court's grant of summary judgment to the plaintiff on the promissory notes; however, we vacate the grant of summary judgment as to the defendant's counterclaim and third-party complaint.

Marcus Mooneyham vs. Harold Cates
E2000-01337-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Dale Young
Marcus Mooneyham, former General Sessions Judge of Cocke County, seeks by this suit to recover a mental health commitment supplement which he contends he is entitled to receive by virtue of his position as Juvenile Judge. The Trial Court found adversely, and further found that because he was not acting in good faith he was required to repay the County $8912.94. We affirm the judgment of the Trial Court that he was not entitled to the supplement he claimed and was required to repay the County the sum assessed.

Carolyn Attaway vs. Denver Attaway
E2000-01338-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Jacqueline E. Schulten
In this action to collect child support ordered in the State of Georgia, the Trial Court Ordered the foreign judgment registered in the Circuit Court, allowed a credit for Social Security payments, and denied the defense of statute of limitations. We affirm.

Dept. of Children's Services vs. Dorothy Hopson
E2000-01606-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Richard R. Vance
Dorothy Hopson appeals a determination that her parental rights should be terminated as to her two daughters upon the grounds that the Trial Court was in error in allowing into evidence statements made by the children to third parties; in finding that the evidence was clear and convincing that she had committed child abuse as to her children; and in finding that termination of her parental rights was in the best interest of the children. We affirm.

State, ex rel Kandy Bissonette, vs. Joseph Marland, III, In Re: KRB
E2000-02089-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Carey E. Garrett
In this action to establish paternity, the Trial Court dismissed the action on the grounds that a previous action against the same defendant had been dismissed, and the savings statute had run. We reverse.

In re: SJLL
E2000-02461-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Joseph M. Ayers
In paternity action, defendant appeals the Trial Judge's refusal to grant T.R.C.P. Rule 60 relief on the grounds that plaintiff's non-suit was improper, and as a result defendant was denied his right to a jury trial. We affirm.

Mason Manor Apartments v. Tawana Anthony
W2002-01769-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Joseph H. Walker, III

Larry Wakefield vs. Kimberly Longmire
E2000-01450-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: James B. Scott, Jr.
This litigation arose out of an accident involving a vehicle owned by Anderson County and being driven at the time of the accident by an employee of the County. The employee sued the driver of the other vehicle involved in the accident. Incident to his original filing, the employee secured service of process on the County's liability insurance carrier, for the purpose of invoking the uninsured motorist coverage of the County's policy. The defendant, Kimberly D. Longmire, filed an answer. She did not seek to impose liability on the employee or the County. Following a jury verdict for the employee in the amount of $641,000, the trial court ruled that the employee's recovery against the uninsured motorist carrier was not capped at $130,000, the limit of the County's liability for an individual claim under the Governmental Tort Liability Act. The carrier, whose policy provided for $1,000,000 of uninsured motorist coverage, appeals, claiming that its obligation under the policy, despite the higher contract limit, is capped at $130,000. The plaintiff contends that the carrier did not appeal from a final order and that its appeal is frivolous. We affirm but do not find the carrier's appeal to be frivolous.

Arlon Way vs. Jim Hall & The Cumberland County Bd. of Ed.
E2000-01458-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Vernon Neal
Plaintiff was discharged as a teacher for unprofessional conduct, and on appeal to the Trial Court he was reinstated. The Trial Court found the school Board had acted arbitrarily and there was no material evidence to sustain the charge of unprofessional conduct. We reverse and reinstate the Board's decision.

Morristown Firefighters Assoc. vs. City of Morristown, et al
E2000-01942-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Kindall T. Lawson
In July 1999, two vacancies arose within the City of Morristown's fire department ("Fire Department") due to the retirement of a battalion chief and a lieutenant. The Civil Service Act provides the procedure for filling vacancies in Morristown's fire department and requires the City to fill vacancies from a Roster prepared by the Civil Service Board ("Board"). When the two vacancies occurred, the Roster in place had been certified in August 1998, and updated by the Board in November 1998 ("1998 Roster"). The City, however, wanted the Board to prepare a new Roster. The Board did not create a new Roster until September 1999 ("1999 Roster"), and in the meantime, the two positions remained unfilled. The City filled the vacancies from the 1999 Roster. The Morristown Firefighters Association ("Plaintiff") brought suit against the City of Morristown, its mayor and City Council members ("Defendants"), alleging violations of the Civil Service Act for Defendants' failure to fill the vacancies from the 1998 Roster. The Trial Court held in favor of Plaintiff and ordered Defendants to fill the two vacancies from the 1998 Roster. Defendants appeal. We affirm.

Package Express Center, Inc. vs. Doug Maund & Emm-Dee Drug Co.
E2000-02059-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas R. Frierson, II
Package Express Center, Inc. vs. Doug Maund & Emm-Dee Drug Co. ( Concur/Dissent) View

Package Express Center, Inc. vs. Doug Maund & Emm-Dee Drug Co.
E2000-02059-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas R. Frierson, II
Package Express Center, Inc. vs. Doug Maund & Emm-Dee Drug Co. ( Concur/Dissent) View

Deborah Harris vs. Howell Dalton & Medical Associates
E2000-02115-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Frank Brown, III
In this action for sexual harassment, the jury returned verdicts for plaintiff. Responding to a motion J.N.O.V., the Trial Judge entered judgment for defendants. Plaintiff appealed. We reverse and remand for a new trial.

Olympia Child Development Center, Inc. et al vs. City of Maryville
E2000-02124-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: W. Dale Young
The suit filed in this tort action originally sought a judgment against the defendant, City of Maryville ("the City"), for damages allegedly sustained by four plaintiffs when a van owned by the plaintiff Olympia Child Development Center, Inc. ("Olympia"), and driven by the plaintiff Lisa K. Murphy was struck by a vehicle driven by Rodney Parton, an off-duty police officer employed by the City. The trial court granted the City summary judgment as to the claims of the remaining plaintiffs, Olympia and Murphy, finding that their claims are barred by the doctrines of collateral estoppel and modified comparative fault. Only Olympia appeals. We affirm the grant of summary judgment, but base our affirmance on a ground other than the one utilized by the trial court.

FTA Enterprises, Inc. vs. Pomeroy Computer Resources, Inc. & Daniel Cole
E2000-01246-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: John S. Mclellan, III
In this action for interference with business relations, interference with contract, breach of fiduciary duty, et., a jury awarded both compensatory and punitive damages in differing amounts against the defendants. The Trial Judge approved the jury verdicts and defendants have appealed. We affirm.

Roy Malone vs. Harleysville Mutual In. Co.
E2000-01308-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Howell N. Peoples
This matter involves a dispute concerning a fire and casualty insurance policy ("Policy") which covered an apartment complex, Star Chase Apartments. Harleysville Mutual Insurance Company ("Defendant") was the insurance carrier, and the named insured was John L. Oliver, LLC ("Oliver"). A fire in one of the apartment buildings caused substantial damage. Approximately six months later, Oliver sold Star Chase to Roy M. Malone, Sr. ("Plaintiff"), prior to starting any repairs to the burned building. Oliver also assigned to Plaintiff his right to the proceeds under the Policy, and Defendant acknowledged this assignment. The Trial Court found that Plaintiff, as Oliver's assignee, was entitled to recover the replacement cost of the burned building, plus prejudgment interest. The Trial Court denied Plaintiff recovery for business loss. Plaintiff appeals the amount awarded to him as the replacement cost and the Trial Court's denial of any additional recovery for business loss. Defendant argues that the assignment of the "proceeds" to Plaintiff did not entitle Plaintiff to recover any amount as replacement cost for repairs done after the assignment. Defendant also objects to the amount of the replacement cost found by the Trial Court and to the awarding of prejudgment interest. We reverse the Trial Court's award of prejudgment interest and affirm all other aspects of the judgment.

Judy (Kendrick) Shoemake vs. Timothy Lee Kendrick
E2000-01318-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: William M. Dender
In this appeal from the Chancery Court for Hamilton County the Appellant, Judy (Kendrick) Shoemake questions whether the Trial Court erred in granting a petition to modify custody filed by the Appellee, Timothy Lee Kendrick, and whether the Trial Court erred in its determination of the amount due her for child support arrearage and unreimbursed medical expenses paid by her on behalf of the parties' minor children. We reverse in part, modify in part and remand for further proceedings, if any, consistent with this opinion. We adjudge costs of the appeal against Judy (Kendrick) Shoemake and Timothy Lee Kendrick equally.

Harold Lovelace, D/B/A The Last Chance Club, et al vs. City of Knoxville
E2000-01609-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Sharon J. Bell
In this Declaratory Judgment action the Trial Court held portions of a City Ordinance unconstitutional relative to notice provisions, the term "open for business" and "open display". We affirm in part, reverse in part and remand.