COURT OF APPEALS OPINIONS

Larry R. Foster and Linda H. Johnston, v. Jay W. Shim
01A01-9512-CV-00569
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Walter C. Kurtz

This appeal involves the lease of a grocery store in Nashville. Following
the landlord’s death, the trust succeeding to the landlord’s interest filed an
unlawful detainer action in the Davidson County General Sessions Court seeking
to recover possession of the property. The tenant appealed the adverse judgment
to the Circuit Court for Davidson County. The circuit court granted the trust’s
motion for summary judgment after finding that the tenant had breached the lease
by failing to make timely and sufficient lease payments. We have determined that
the summary judgment must be reversed because the trust has failed to
demonstrate that it was entitled to a judgment as a matter of law.

Memphis Publishing Company, v. Tennessee Petroleum Underground Storage Tank Board, et al.
01A01-9607-CH-00300
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

This case is on appeal for the second time. The Tennessee Petroleum Underground Storage Tank Board and J. W. Luna, as Commissioner of the Tennessee Department of Environment and Conservation (hereinafter “Board” or “Appellants”), have appealed from the judgment of the trial court declaring the appellee, Memphis Publishing Company (MPC), eligible for reimbursement from the Tennessee Petroleum Underground Storage Tank Fund (Fund) for remediation expenses incurred as a result of a release from its underground storage tank in August 1987. The trial court’s decision came after remand from the Middle Section of this Court in Memphis Publishing Company v. Tennessee PetroleumUnderground Storage Tank Board, No. 01A01-9305-CH-00202, 1993WL 476292 (Tenn. App. Nov. 19, 1993), perm. app. denied, c.r.o. There, the court confronted the issue of whether MPC had a right to Fund reimbursement under the Tennessee Petroleum Underground Storage Tank Act (Act), T.C.A. § 68-215-101 et seq., as originally enacted. 1 It was argued that MPC had no right to reimbursement because its release occurred prior to the effective date of the Act, July 1, 1988. This Court, speaking through Judge Lewis, held that the Act, as originally enacted, “was intended to cover, from a Fund reimbursement perspective, all releases regardless of date.” Upon remand, the trial court held the court of appeal’s decision “law of the case” and ruled as hereinabove set forth. It is urged on appeal that the decision rendered in Memphis Publishing is not the “law of the case” regarding MPC’s Fund eligibility and that the trial court erred in so holding. For reasons hereinafter stated, we affirm.

Linda Gail Ray, v. Billy Gene Ray
01A01-9608-CH-00360
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Judge Jim T. Hamilton

This is a divorce case. Defendant, Billy Gene Ray (Husband), appeals from the judgment of the trial court dividing the marital property and awarding alimony to the plaintiff, Linda Gail Ray (Wife).

Flora Scruggs v. Gordon Bell - Concurring
01A01-9610-CH-00475
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Holly Kirby Lillard

This case involves a dispute concerning an easement for ingress and egress. Respondents-Appellants, Gordon Bell and Sarah T. Bell, appeal from the order of the trial court 1 On October 24, 1995, Flora Scruggs transferred the property by quitclaim deed to her husband, John T. Scruggs, Sr. On January 23, 1996, the trial court entered an order substituting John T. Scruggs, Sr. in place of Flora Scruggs as the proper party in interest.However, because the trial court and the parties have continued to refer to the petitioner as Flora Scruggs, we will do likewise. 2 Scruggs actually purchased the land with John T. Scruggs, Sr. In 1982, John T. Scruggs, Sr. conveyed his interest in the land to Flora Scruggs making her the sole owner until she conveyed it back to him in 1995. 3 Old New Cut Road is referred to throughout the record as Old New Cut Road, New Cut Road, Triune, and Salem Road, or old dirt road. In this opinion, we will call the road “Old New Cut Road.” 2 granting an easement by estoppel to Petitioner-Appellee, Flora Pope Scruggs1, without compensation to the Bells.

Judy Margaret Jackson Virostek v. James R. Virostek
02A01-9601-CH-00019
Authoring Judge: Senior Judge Tomlin
Trial Court Judge: Chancellor Floyd Peete, Jr.

Judy Margaret Jackson Virostek (“Wife”) filed suit for divorce in the Chancery Court of Shelby County against James R. Virostek (“Husband”). Following a bench trial the chancellor entered a decree awarding Wife a divorce on the grounds of irreconcilable differences. The divorce decree also incorporated therein by reference a Marital Dissolution Agreement (“MDA”) awarding custody of the parties’ minor child to Wife as well as providing that Husband would pay child support along with rehabilitative alimony to Wife. Thereafter Husband filed a motion to modify the divorce decree relative to the payment of child support and alimony. Wife responded with a counter-petition seeking to have Husband held in contempt for failure to abide by the terms of the MDA. Following a hearing the chancellor denied Husband’s petition to modify relative to the payment of alimony and child support. The court also found Husband in contempt of court for failing to abide by the provisions of the MDA, ordered Husband to disperse funds from the trust account of the parties’ minor son to satisfy an outstanding tuition balance at the son’s private school and ordered Husband to pay Wife’s attorney fees, approximating $15,000.00.

Erica Rebecca Hurd (Deceased), by and through her parents and next friends, et al., v. David Woolfork, et al.
02A01-9607-CV-00170
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Whit A. Lafon

Plaintiffs Erica Rebecca Hurd, deceased, by and through her parents and next friends, Charles and Virginia Hurd, and Cortney Deshaun Ragland, a minor, by and through his next friend, Wanda Kay Grimes, appeal the trial court’s order dismissing their wrongful death actions against Defendants/Appellees Madison County and David Woolfork, Madison County’s Sheriff. We affirm.

Krisinda Bowers, A Minor, by next friend, Tammy K. Bowers and Steve Bowers, v. Stephen Hammond, et al
02A01-9601-CV-00011
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge John Franklin Murchison

Plaintiff Krisinda Bowers, a minor, by next friends Tammy K. Bowers and Steve Bowers (Krisinda’s parents), appeals the trial court’s order entering summary judgment in favor of Defendants/Appellees Stephen Hammond, The Jackson Clinic Professional Association, and Jackson-Madison County General Hospital. In dismissing the complaint, the trial court ruled that Krisinda’s action against the Defendants was barred by the threeyear statute of repose applicable to medical malpractice actions and, further, that Krisinda’s action against the Hospital was barred by her failure to comply with the statutory notice requirements formerly applicable to actions against governmental entities. We affirm in part and reverse in part.

Beverly Dianne (Privette) Moore, v. Gary Thomas Moore
02A01-9610-CH-00265
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Chancellor Dewey C. Whitenton

This appeal involves a motion to set aside an order modifying child custody. Defendant, Gary Thomas Moore (Father), appeals the trial court’s order granting the Motion to Dismiss filed by plaintiff, Beverly Dianne Privette Moore (Mother), and denying his Motion for Relief Pursuant to Tenn.R.Civ.P. 60.02.

Charles R. Browder and Teresa Noland Browder, v. Jerry C. Morris and Chris Castleberry, et al.
02A01-9602-CV-00039
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Wyeth Chandler

This is an interlocutory appeal by appellants, Charles R. and Teresa Noland Browder, from the trial court’s denial of a motion seeking to amend their complaint to name an additional party defendant pursuant to T.C.A. § 20-1-119. The statute was enacted in response to the supreme court’s decision in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), which abolished the doctrine of contributory negligence in Tennessee and adopted principles of comparative fault. The statute allots a plaintiff in cases of comparative fault additional time beyond the normal running of the statute of limitations within which to join a previously unnamed defendant by either amendment of the complaint or institution of a separate action. The issue presented here is whether the statute as enacted contemplates the joinder of a third party defendant whose liability, if any, is vicarious only.

01A01-9610-CV-00496
01A01-9610-CV-00496
Trial Court Judge: Buddy D. Perry

McCamey vs. TN. Dept. of Correction
01A01-9701-CH-00033
Trial Court Judge: Walter C. Kurtz

First Farmers & Merchants Nat'l. Bank vs. Burt Bros. Furniture
01A01-9608-CV-00381
Trial Court Judge: Jim T. Hamilton

Mayfield vs. Mayfield
01A01-9611-CV-00501
Trial Court Judge: Muriel Robinson

Mayfield vs. Mayfield
01A01-9611-CV-00501

Seagroves vs. TN. Department of Correction
01A01-9508-CH-00334
Trial Court Judge: Robert S. Brandt

Out Patient Diagnostic Center vs. Christian
01A01-9510-CV-00467
Trial Court Judge: Barbara N. Haynes

Out Patient Diagnostic Center vs. Christian
01A01-9510-CV-00467

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Williams vs. Sugar Cove
03A01-9605-CH-00175

Copper Cellar vs. Miller
03A01-9607-CV-00239

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David Dean vs. Home Depot USA, Inc.
M1999-02313-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Soloman
Plaintiff, David Dean, was a 68 year old frequent patron of Home Depot. On April 27, 1997, Mr. Dean completed his shopping at the store, paid the cashier and, upon departing, appeared to have set off the electric theft detection alarm. An employee of Home Depot stopped Mr. Dean and asked him to step back into the store while employees located the source of whatever triggered the alarm. Mr. Dean was neither arrested nor charged and ultimately left the store. He brought suit against Home Depot for false imprisonment resulting in a jury verdict in his favor for $37,593.00. On Motion for a New Trial, asking in the alternative for remittitur, the trial court reduced the judgment by $3,000.00. Defendant appealed. Upon consideration of the record, we suggest an increased remittitur and remand the case giving Mr. Dean 15 days to accept the suggested remittitur.