COURT OF APPEALS OPINIONS

Martin Door & Window v. Thomas Donegan d/b/a The Construction Team
M2001-01230-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Charles K. Smith

Nelda Age v. HCA Health Svcs. dba Centennial Medical Center
M2001-01286-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Hamilton V. Gayden, Jr.
This is an action for damages for personal injuries to a patient who claims that her injuries resulted from the ordinary negligence of the Hospital's employees, as contrasted to their medical malpractice. The trial judge concluded, in ruling on the motion of the Hospital for summary judgment, that the event described by the plaintiff, if actionable, sounded in malpractice, thus requiring expert proof. We agree. The motion of the appellee to recover discretionary costs was denied without elaboration. We find that certain costs identified in Rule 54.04(2) are properly recoverable.

Charles Ivey v. Pat Hamlin
M2001-01310-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Robert E. Burch
This is an action for damages for the deliberate killing of a dog by a Deputy Sheriff. The owner of the dog claims damages under 42 U.S.C. Section 1983 for the alleged violation of his 14th Amendment rights, the witnesses to the shooting sue for damages for the infliction of emotional distress. The motion of the Deputy and the County for summary judgment was denied.

M2001-01735-COA-R3-JV
M2001-01735-COA-R3-JV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Tim Brock

Victoria Henry v. Timothy Goins
M2000-02663-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Hamilton V. Gayden, Jr.
The suit of the plaintiffs was dismissed for failure to prosecute. The judgment did not provide that the dismissal was without prejudice. More than thirty days after entry of the Order of Dismissal, the plaintiffs filed a Rule 60.02 Motion that the Order of Dismissal be set aside. Their failure to file a timely motion was attributed to the asserted excusable neglect of a paralegal who assumed that a motion filed by a cross-claimant sufficed for the plaintiffs as well. The trial judge set the Order of Dismissal aside. We hold that the conduct of the paralegal cannot be treated as excusable neglect. A defendant, Robert Orr-Sysco Food Systems Company ["Robert Orr-Sysco"], incurred reporting expenses before a non-suit was taken by the plaintiffs. The defendant moved for discretionary costs which were disallowed. We reverse.

Calvin Tankesly v. Sgt. Pugh, et al.
M2000-01520-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen Hobbs Lyle

Glen Tucker vs. Steve Howell
W2001-00999-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Ron E. Harmon
Plaintiff home owner sued defendant construction company for damages resulting from defendant's failure to complete construction of plaintiffs' home. The Chancery Court of Decatur County, Tennessee entered judgment in favor of the plaintiffs in the amount of $17,057.00. Defendant has appealed. We dismiss the appeal.

Susan J. Hicks v. Crescent Resources, Inc.
M2001-00079-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: J. Russ Heldman
Plaintiff was granted summary judgment for commissions due and owing from defendant. On appeal, we vacate and remand.

William Allen v. Donal Campbell, et al
M2001-00277-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol L. Mccoy
Petitioner, a state inmate, filed the underlying pro se declaratory judgment action pursuant to the Uniform Administrative Procedures Act to seek review of the Tennessee Department of Correction's refusal to answer a petition for a declaratory order. Petitioner requested a declaratory order to determine his entitlement to both good conduct sentence credits and good and honor time credits. The trial court granted the Department's motion to dismiss for failure to state a claim holding that petitioner was not entitled to duplicate sentence credits. For the following reasons, we affirm the decision of the trial court.

Rutherford County vs. Martha Wilson
M2000-01382-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Don R. Ash
This appeal involves a dispute over the interpretation of a grant of real property giving a life estate to the grantor's daughter with the remainder to go to the "heirs of her body" and, if at her death there were none, to the grantor's heirs at law. Rutherford County condemned a portion of the property, and the parties dispute apportionment of the condemnation proceeds. The life tenant is still living; therefore, her life estate has not terminated. However, the widow of the life tenant's deceased son claims that she has a one sixth (1/6) interest in the property because her husband owned a vested transmissible interest in the remainder, which passed in part to his widow on his death by intestate succession. The trial court found that Tennessee's statute governing class gifts requires that the son's issue, living at the termination of the life estate, would take his share of the remainder. Therefore, the widow would not be entitled to a portion of the remainder. The widow now appeals to this court. For reasons discussed herein, we affirm the trial court's determination that the widow had no interest in the remainder.

Travelers Indemnity Co. vs. Kenton Freeman, et al
M2001-00657-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Ellen Hobbs Lyle
Travelers Indemnity Company [Travelers] filed a complaint for a declaratory judgment respecting its liability to pay UM coverage for the minor child of its policyholder who was divorced from the child's mother, with joint custody having been awarded. Mother was killed in a traffic accident in Alabama; her passenger child was injured. Mother owned and was driving her automobile, and she also had UM coverage. The adverse driver had split liability coverage all of which was paid, in equal parts, to the Administrator of the mother's estate, and to the minor child. Mother's UM carrier paid its entire policy proceeds to her administrator. Travelers objected, inter alia, to the lack of allocation of the proceeds of mother's UM coverage. Travelers' insured, on behalf of his minor child, filed a counter-claim against Travelers for the entire UM coverage, notwithstanding an amount certain had never been determined. The court found that Travelers had never disputed that the value of the minor child's claim exceeded the UM coverage and rendered a summary judgment against Travelers for an amount certain. We vacate and remand.

John Pitt d/b/a Pitt Excavating vs. Tyree Org. Ltd. & Doug Suess Concrete
M2001-00115-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Irvin H. Kilcrease, Jr.
This is a declaratory judgment action involving the interpretation and application of an indemnification provision contained in a construction contract. Defendant, Doug Suess d/b/a Doug Suess Concrete (hereinafter "Suess"), appeals from the final order of the trial court granting summary judgment to both plaintiff, John Pitt, II d/b/a Pitt Excavating (hereinafter "Pitt") and defendant, Tyree Organization Limited (hereinafter "Tyree"). We reverse.

Tony Makoka v. Wendy Makoka-Mhlanga
M2001-00363-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Muriel Robinson
A prisoner filed a petition to enforce an agreed order that granted him visitation rights with his minor daughter. The child's mother asked the trial court to dissolve the agreed order. The court found that it was not in the best interests of the child to compel her to visit her father in prison, dissolved the agreed order, and enjoined the father from engaging in activities that amounted to harassment of the mother. We affirm the trial court.

Erica Slaughter vs. Rosetta Rowe
E2001-00840-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Samuel H. Payne
Erica R. Slaughter ("Slaughter") sued Rosetta Rowe ("Rowe") for slander and harassment after an alleged physical altercation precipitated by Slaughter's affair with Rowe's husband. After the physical altercation, Slaughter filed assault charges against Rowe leading to her arrest. The assault charge was eventually dismissed. Rowe filed a counter-claim for malicious prosecution. Each party testified at trial to her version of the events. The Trial Court concluded neither party carried her burden of proof on her claim and dismissed the entire lawsuit. Rowe appeals, and we affirm.

Harrison M.X. Pearison v. Donal Campbell,
M2000-01105-COA-R3-CV
Trial Court Judge: Carol L. Soloman

Nicole Keeler v. Michael Keeler
M2001-00684-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol A. Catalano
In this divorce case, the trial court awarded the parties joint custody of their minor children, with primary physical custody awarded to the father. The mother contends on appeal that she is the more fit parent and should have been given primary custody. We affirm the trial court.

Sylvester Young v. Leah Barrow
M2001-00876-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Marietta M. Shipley
This appeal arises out of a minor intersection accident. The complaints of the driver and passenger of one of the motor vehicles against the driver of the second motor vehicle were consolidated in the Circuit Court for Davidson County. The trial court granted a directed verdict against the plaintiff driver at the close of the plaintiffs' proof. Thereafter, the plaintiff driver filed a second lawsuit against the defendant driver and her insurer. The trial court dismissed the second suit on the ground of res judicata and granted the insurer's motion for a judgment on the pleadings. The plaintiff driver has perfected this appeal. We affirm the dismissal of his second complaint.

Tony Makoka v. Howard Cook
M2001-01013-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen Hobbs Lyle

Tony Makoka v. Howard Cook
M2001-01013-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen Hobbs Lyle

Jack Charles Blankenship v. Donal Campbell, et al
M2001-01014-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Carol L. Mccoy
This appeal involves a dispute between a prisoner and the Tennessee Department of Correction regarding the prisoner's sentence credits and eligibility for parole. The prisoner filed a petition for declaratory judgment in the Chancery Court for Davidson County requesting the correction of his sentence and an immediate parole hearing. The Department filed a motion for summary judgment based on laches. When the prisoner failed to respond to the motion, the trial court granted the summary judgment in accordance with Davidson County Local R. 26.04(c), (f). Thereafter, the trial court denied the prisoner's motion to set aside the summary judgment, and the prisoner has appealed. We have determined that the summary judgment must be vacated because the Department's motion and supporting affidavit do not demonstrate that it is entitled to a judgment on its laches defense as a matter of law.

Lisa Davis v. Charles Jensen
M2001-00973-COA-R3-CV
Trial Court Judge: Alfred L. Nations
Appellant, an incarcerated prisoner in the Department of Corrections of California, appeals the action of the Juvenile Court of Williamson County in terminating his parental rights to his biological child. He refused to participate in the termination hearing by means of telephonic communication as authorized by the trial court demanding, instead, that the trial court either continue the case until after his release from confinement, or have him transported from California to Williamson County for personal participation. The trial court held that he waived his right to participation in the termination proceedings and terminated his parental rights. We affirm the trial court.

Paul Ivy v. Tennessee Department of Correction
M2001-01219-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Carol L. Mccoy
This appeal involves a dispute between a prisoner and the Department of Correction regarding a disciplinary proceeding at the Deberry Special Needs Facility in Davidson County. The prisoner filed a petition for writ of certiorari in the Chancery Court for Davidson County alleging the disciplinary board acted illegally, arbitrarily, and vindictively by violating the Department's Uniform Disciplinary Procedures when it disciplined him for attempted escape. The Department filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss, and the trial court, citing Sandin v. Conner, 512 U.S. 472, 115 S.Ct. 2293 (1995), dismissed the petition. The prisoner has appealed. We have determined that the order dismissing the prisoner's petition should be reversed in part and that the case should be remanded for further consideration in light of Willis v. Tennessee Dep't of Corr., 113 S.W.3d 706 (Tenn. 2003).

Thomas Dyer v. TDOC
M2001-01446-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Irvin H. Kilcrease, Jr.

Thomas Dyer v. TDOC
M2001-01446-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: William C. Koch

Jeffrey Haithcote v. Donal Campbell
M2001-01828-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Mccoy
A prisoner convicted of numerous crimes filed a Petition for Declaratory Judgment, arguing that the Department of Correction had erred in its calculation of his sentence expiration date, and that he was entitled to be released. The Department stood by the correctness of its calculations. The petitioner's sentence expired during the course of the proceedings, and he was released. The trial court then dismissed the petition as moot. We affirm.