COURT OF APPEALS OPINIONS

Martino vs. Dyer
M1999-02397-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: William M. Dender
The trial court granted the motion of an attorney seeking collection of a pro rata share of his fee from a hospital lien against his client's settlement. The effect of the trial court's order is to require the hospital to pay fees to an attorney it did not hire. We reverse the judgment.

Tinkham vs. Beasley
M1999-02809-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Clara W. Byrd

Tinkham vs. Beasley
M1999-02809-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Clara W. Byrd

Elvin Blankenship vs. Alvis Blankenship
W1999-02134-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Joe C. Morris
This appeal arises from a property line dispute between several parties. During the trial, the Chancellor appointed an independent surveyor as a Special Master to determine the actual location of the boundary lines between the parties. When the Special Master reported his results, the Chancellor concurred in his findings. We affirm.

Thomas Smith vs. Arthur Johnson
W2000-00063-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Joseph H. Walker, III
This is a wrongful death case. A car crossed the center line and collided with a dump truck, causing the dump truck to strike and kill three pedestrians, including the plaintiff's wife and son. The plaintiff sued the driver of the car, the driver of the dump truck, and the company for which the dump truck driver was hauling asphalt. The trial court granted summary judgment in favor of the company, finding that the truck driver was an independent contractor. At trial, the jury found that the driver of the car was 100% at fault for the accident, and that the truck driver bore no fault in the accident. The plaintiffs did not move for a new trial. The plaintiff filed a notice of appeal. We affirm the trial court's grant of summary judgment to the company, finding that the liability of the company would be derived from the fault of the truck driver in the operation or maintenance of his dump truck, and that the company could not be held liable where the jury found that the truck driver bore no fault in the accident.

Dana Scott vs. Edward Sellers
W2000-00422-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: George H. Brown
This is a personal injury and wrongful death case arising from a collision between a pickup truck and a tractor trailer truck. The five-year-old son of plaintiffs Dana Scott and Shane Thurmon died as a result of the accident. The driver of the car was an "on call" employee of his father's business at the time. The plaintiffs sued the driver of the car and his father, alleging vicarious liability under the doctrine of respondeat superior and under the family purpose doctrine. Plaintiff Dana Scott also sued for consortium-type damages for the loss of her son. Although referring to it as a directed verdict, the trial court, pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure, entered an involuntary dismissal in favor of the defendants on the vicarious liability issue, under both respondeat superior and the family purpose doctrine, and on the loss of filial consortium claim. The trial court awarded damages, inter alia, to Dana Scott for the wrongful death of her son and to Carl Fuhs for personal injuries based upon his negligent infliction of emotional distress claim. We hold the following: (1) employer is not vicariously liable under the doctrine of respondeat superior for acts or omissions of "on call" employee when employee is not acting within the course and scope of his employment; (2) the requirements of the family purpose doctrine were met and defendant Donald Sellers, Sr. is vicariously liable under this theory; (3) parents may recover filial consortium damages in wrongful death actions for the death of their child; (4) the trial court's wrongful death award to Dana Scott was supported by the evidence; (5) Carl Fuhs sufficiently established a claim for negligent infliction of emotional distress; and (6) the personal injury award to Carl Fuhs is affirmed.

Richard Stoner vs. Mary Stoner
W2000-01230-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Ron E. Harmon
This appeal arises from a divorce between a couple with a long standing pre-marital relationship. Citing this relationship, the trial court classified two stock accounts as marital property and awarded Wife a portion of their funds. These accounts were pre-marital accounts of Husband. No marital funds were deposited in the accounts by either party and Wife had no interaction with the accounts. Under the circumstances of this case, the trial court's classification of this property as marital property amounts to recognition of a common-law marriage, and Tennessee does not recognize common-law marriages. As such, the trial court was incorrect in awarding funds from the accounts to Wife. The trial court correctly assigned pre-marital debt, divided the remainder of marital property, and awarded alimony in futuro and attorney's fees. We affirm in part and reverse in part.

John Britt vs. Johnny Massengill
W1999-01129-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Joe C. Morris
This is a suit arising from the Appellants' purchase of real property from the Appellees. The Appellees executed a warranty deed to the Appellants. The Appellants claim that the Appellees failed to disclose that the property was subject to a timber contract. The Appellants filed a complaint against the Appellees in the Chancery Court of Henderson County, requesting damages for violation of the Tennessee Consumer Protection Act. The trial court ordered rescission of the contract for the sale of real property.

Chuck Wallace vs. Bob Chase
W1999-01987-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Ron E. Harmon
This appeal arises from a boundary line dispute between the Appellants and the Appellees. The Appellees filed a complaint with the Chancery Court of Carroll County against the Appellants. The Appellants filed a counter-complaint against the Appellees. Following a trial, the trial court reformed the deeds of the parties. The trial court moved the disputed corner of the properties twelve and one half feet due south of a PK nail in the roadway. The trial court also granted a permanent easement for an existing driveway to the Appellants.

State vs. Jacqueline Heard & Irvin Salky
W1999-02414-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: D. J. Alissandratos
This appeal involves an attempt by a taxpayer to redeem his property after it had been sold at a tax sale. The taxpayer filed a Petition to Redeem the property within the one-year statutory period, but failed to tender the money into court within the one-year period, as required by statute. The chancellor below granted the taxpayer an additional thirty days, as a matter of equity, in which to pay the money into court and redeem his property. For the following reasons, we reverse the judgment of the trial court.

Chris Farley vs. Charles Ellis, et al
W2000-00354-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George R. Ellis
Plaintiff sued defendants to enforce alleged oral agreement to convey real estate or alternatively for damages. The trial court found that the oral agreement violated the statute of frauds, but ordered, under the doctrine of equitable estoppel, the specific performance of the oral agreement. Defendants have appealed.

Sabrina Burton vs. Carroll Co.
W2000-00549-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: C. Creed Mcginley
Plaintiffs, husband and wife, sued county and county's volunteer fire department pursuant to Tennessee Governmental Tort Liability Act seeking damages for wife's personal injuries and husband's loss of consortium sustained while they were patronizing a "haunted house" operated by the volunteer fire department to raise funds. Plaintiffs allege that the defendants were negligent in (1) creating a dangerous and defective condition and failing to correct that condition; (2) failing to warn the public of the dangers and defective condition; and (3) failing to maintain the premises in a reasonably safe condition. The trial court, sitting without a jury, entered judgment for the plaintiffs. Defendants have appealed. The trial court's judgment is affirmed.

Myron Zimmerman vs. City of Memphis
W2000-01369-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: D. J. Alissandratos
This appeal involves the determination of whether the City of Memphis properly levied a special assessment upon the property owners within the Central Business Improvement District in downtown Memphis. The affected property owners allege that the levy in question was not a special assessment. They allege that the levy was a tax in violation of section 7-84-501 et seq. of the Tennessee Code as well as Article 2, Section 29 of the Tennessee Constitution. For the following reasons, we affirm the decision of the trial court.

E.L. Billingsley and Oneida Farms, Inc. vs. Alvin D. Escue
E2000-00463-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Dale C. Workman
The Trial Judge granted defendant summary judgment on grounds the action was time-barred. We affirm.

Linda Taylor vs. James Taylor
E2000-00476-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Lawrence H. Puckett
This appeal arises from a divorce in which the Trial Court awarded Linda May Taylor ("Wife"), age 58, alimony until she reaches age 65 or she retires, whichever occurs first. Wife was also awarded the parties' home. The Trial Court granted James Arnold Taylor ("Husband"), age 61, his interest in the marital home but ordered that Wife does not have to pay Husband for his interest in the marital home until Wife reaches age 65. Husband appeals. We affirm.

Lawrence Westfall vs. Brentwood Svc. Grp, Inc.
E2000-01086-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jerri S. Bryant
Lawrence O. Westfall filed suit against his former employer, Brentwood Service Group, Inc., seeking payment of post-employment commissions allegedly due him. The defendant counterclaimed for breach of a non-competition/non-disclosure agreement. Following a bench trial, the court below awarded post-employment commissions to the plaintiff and dismissed the defendant's counterclaim, finding that the parties had not agreed to the non-competition/non-disclosure agreement. The employer now appeals, claiming that the plaintiff is not entitled to post-employment commissions and that the trial court erred in failing to enforce the parties' alleged non-competition/non-disclosure agreement. We affirm.

E2000-0816-COA-R3-CV
E2000-0816-COA-R3-CV
Trial Court Judge: Russell E. Simmons, Jr.

Mitchell Bingham vs. Tammy Bingham
E1999-01768-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Samuel H. Payne
In this post-divorce case, Mitchell Blain Bingham filed a petition seeking the custody of his minor child. The trial court, instead, awarded the child's custody to the child's paternal grandparents, who, prior to the trial court's order awarding them custody, were not parties to the action and had not previously petitioned for custody. Both of the child's parents appeal the award of custody to the paternal grandparents. We vacate the trial court's judgment and remand for further proceedings.

Heatherly vs. Merrimack Mutual Fire Ins. Co.
M1998-00906-COA-R10-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Thomas Goodall
This extraordinary appeal involves a dispute between two homeowners whose house was damaged by fire and the two insurance adjusting companies hired by the homeowners' insurance carrier to investigate their claim. Believing that their claim had been fraudulently processed, the homeowners filed suit in the Circuit Court for Sumner County against their insurance carrier and the two adjusting companies. The three defendants moved to dismiss the complaint as to the adjusting companies. After the trial court denied the motions and declined to grant an interlocutory appeal, the two adjusting companies petitioned for a Tenn. R. App. P. 10 extraordinary appeal. We granted the application and now reverse the trial court's denial of the motion to dismiss because the homeowners have conceded that they have no breach of contract claim against the adjusting companies and because we have concluded that the homeowners' claims are barred by the statute of limitations.

Mahan vs. Mahan
M1999-01366-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol A. Catalano
In this divorce case, the husband appeals the award of custody of the children to the wife, the admission of certain evidence at trial, and the redistribution of marital property on a post-judgment motion following his bankruptcy. We affirm the trial court.

Clifton vs. Acosta-Delgado
M2000-00253-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Muriel Robinson
This is a post-divorce child custody dispute. The mother filed a petition to regain custody of the parties' three children after she had entered into an agreed order in 1995 granting custody to the defendant father. After hearing testimony on, inter alia, the father driving while intoxicated with the children in the car with him, the trial court found a material change in circumstances, granted custody to the mother, and ordered the father to pay child support. The father appeals, arguing that there was not a material change in circumstances sufficient to warrant a change in custody, that the trial court inappropriately considered his child support arrearage prior to the 1995 agreed order, and that the trial court miscalculated his income, resulting in an unreasonably high child support award. We affirm, finding a material change in circumstances warranting a change in custody, and finding that the evidence does not preponderate against the award of child support.

In re: Estate of Willette Bonita Carnahan
M1999-00494-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Tom E. Gray
This appeal arises from a will contest in which the defendant has appealed from a jury verdict invalidating a will on the grounds of unsound mind and undue influence. The deceased executed two wills. The first will was executed in 1985 naming the plaintiff who was a friend, employee, and the son of the family who cared for her in her later years as the sole beneficiary. The second will was executed in 1993 naming the defendant, a man who share cropped tobacco on her farm and was paid to mow her lawn, as the sole beneficiary. The plaintiff alleged that at the time the latter will was executed, the testator was of unsound mind and had been unduly influenced by the defendant. At trial, the jury returned special findings that the deceased was not of sound and disposing mind on December 29, 1993, when the second will was executed and that she was unduly influenced by the defendant in making the last will and testament. On appeal, the defendant presents three issues: (1) whether there was material, substantial evidence to support the jury findings, (2) whether the trial judge erred in instructing the jury regarding a presumption of undue influence and the burden of proof on finding a confidential relationship, and (3) whether the trial court erred in assessing court costs against the defendant and not awarding him attorneys fees. We affirm the judgment.

Jerry Luster vs. Alan Bargery, et al
W2000-00022-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Jon Kerry Blackwood
Prisoner filed petition for habeas corpus alleging that he received an amended sentence of six years for drug violation instead of the original eight-year sentence with probation. Petitioner alleges that upon revocation of probation, he was ordered to serve the eight-year sentence instead of the six-year amended sentence. The trial court dismissed the petition, and petitioner has appealed.

Joseph Henry, et al vs. Bi-District Board of Urban Ministry, Inc., et al
M2000-01128-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Hamilton V. Gayden, Jr.
This appeal arises from an action for negligence. Plaintiff was sleeping in a homeless day shelter when he was struck in the head by Assailant, who was another guest of the shelter. Plaintiff brought suit against Shelter and its controlling Board for failing to provide security. The trial court found that neither Shelter nor Board owed a duty to Plaintiff because providing security would place an onerous burden on the parties. We affirm.

Dry Tech, Inc. vs. Ken Riddle, d/b/a Nu Steam
M2000-01411-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Tom E. Gray
This appeal arises from a breach of contract and/or quantum meruit action filed by the Appellee against the Appellant in the Chancery Court of Sumner County. The Appellant filed a counterclaim against the Appellee. The Appellant served upon the Appellee a request for admissions. The Appellee failed to respond within thirty days. The Appellant moved the trial court to enter an order deeming the matters contained in the request for admissions to have been admitted by the Appellee. The trial court denied the Appellant's motion and entered a judgment in favor of the Appellee on the complaint. The trial court entered a judgment in favor of the Appellant on one of the claims of the counterclaim and dismissed the other two claims.