Metropolitan Government of Nashville and Davidson County, et al. v. BFI Waste Services, LLC, et al.
After Metro’s waste-to-energy facility was damaged/destroyed by fire, Metro and the facility’s insurer filed suit against Defendants. Prior to trial, Defendants’ expert was precluded from testifying regarding the facility’s value, its condition prior to the fire, and the alleged pre-fire plans to discontinue its operation. A jury returned a verdict in favor of Plaintiffs, and Defendants appeal. On appeal, Defendants challenge the exclusion of certain evidence, the jurycharge regarding damages, and an adverse inference juryinstruction given as a sanction against Defendants. Additionally, Plaintiffs challenge the denial of prejudgment interest. We affirm the trial court in all respects. |
Davidson | Court of Appeals | |
In Re: Fridrich E.T.W.
George R.W., Jr. (“Father”) appeals the termination of his parental rights with respect to his minor son, Fridrich E.T.W. (DOB: Aug. 27, 2008) (“the Child”). The Department of Children’s Services (“DCS”) had filed a petition seeking to terminate both parents’ rights after the Child was taken into custody pursuant to an emergency protective order. He was subsequently adjudicated dependent and neglected as a result of being subjected to severe child abuse. As to Father, DCS pursued termination on the sole ground of severe child abuse. Father did not appear at trial. At the start of the trial, his counsel moved for a continuance based in part on counsel’s assertion that Father had advised her that he wished to effectuate a voluntary surrender of his parental rights. The trial court denied the motion and the hearing proceeded in Father’s absence. The court terminated Father’s rights based upon its finding that the sole ground for termination was established and that termination was in the best interest of the Child, both findings said by the court to be made by clear and convincing evidence. Father appeals. We affirm. |
Anderson | Court of Appeals | |
Amber Brazilian Export Resources, Inc., DBA Amber International V. Crown Laboratories, Inc. et al.
Amber Brazilian Export Resources, Inc., doing business as Amber International (“the Plaintiff”), filed this action against Crown Laboratories, Inc. and Jeffrey A. Bedard (collectively “the Defendants”) to collect a debt owed on an “open account.” The liability of Mr. Bedard is based upon a personal guaranty of Crown’s obligation. The Defendants admit that something is owed on the account but deny the amount and further deny that Mr. Bedard signed the guaranty in a personal capacity. The Plaintiff filed a motion for summary judgment supported by the affidavit of its president, which the Defendants opposed with the affidavit of Mr. Bedard in which he states that he signed the guaranty in a representative capacity. He also disputes the amount due as stated in the Plaintiff’s affidavit. The trial court granted the Plaintiff’s motion. The Defendants appeal. We affirm that part of the judgment holding Mr. Bedard liable on the guaranty and vacate that part of the judgment setting the amount owed because there is a genuine issue of material fact as to the amount. |
Washington | Court of Appeals | |
Farmers Mutual of Tennessee v. Jennifer Atkins
This is an interlocutory appeal from the denial of summary judgment. Appellant insurance company sought a declaratory judgment that Appellee was precluded from recovering under her home owner’s insurance policy due to her failure to submit to an examination under oath. The insurance company moved for summary judgment, arguing that the failure to submit to an examination under oath was the nonoccurrence of a condition precedent to recovery under the policy, as outlined in Spears v. Tennessee Farmers Mut. Ins. Co., 300 S.W.3d 671 (Tenn. Ct. App. 2009). Appellee responded that she had not failed to submit to an examination and argued that, under Talley v. State Farm Fire & Cas. Co., 223 F.3d 323 (6th Cir. 2000), the insurance company must prove prejudice in order to preclude recovery. The trial court denied summary judgment, citing material factual disputes and noting, without deciding, the divergence of opinion regarding the condition precedent issue. Accordingly, the trial court granted an interlocutory appeal for this Court to determine the applicable law. This Court granted the interlocutory appeal; however, upon further review, we have determined that this issue is not properly before us. Accordingly, we vacate the grant of the interlocutory appeal, remand to the trial court for further proceedings and dismiss the appeal. |
Monroe | Court of Appeals | |
Orlando Fields v. Corrections Corporation of America et al.
An inmate at the South Central Correctional Facility in Clifton, Wayne County, Tennessee, filed this Petition for Writ of Certiorari to challenge the decision of the prison grievance board and that of the Commissioner. All of the respondents filed motions to dismiss the petition on several grounds including that Petitioner failed to comply with Tenn. Code Ann. § 41-21-805, that decisions bya prison grievance boards are not reviewable under a common law writ of certiorari, and Petitioner failed to comply with Tenn. Code Ann. § 41-21-806(b). The trial court dismissed the petition as to all respondents. We affirm. |
Wayne | Court of Appeals | |
Robes P. Jean Philippe a/k/a Johnny Ralone et al. v. Jhuliana Lopez et al.
The appellants have filed notices of appeal from a final judgment purportedly entered on February 25, 2011. Because the appellants did not file their notices of appeal with the trial court clerk within the time permitted by Tenn. R. App. P. 4(a), we dismiss the appeal. |
Davidson | Court of Appeals | |
In Re Izaiah J. et al.
The trial court terminated father’s parental rights to his daughter. We affirm because there was clear and convincing evidence to support the trial court’s decision. |
Putnam | Court of Appeals | |
In The Matter of: The Estate of Mary Isabel Gentry, Deceased
Appellant filed a motion to set aside an order that purported to settle a dispute concerning the real estate in a decedent’s estate. The court denied the motion; Appellant contends this was error. The parties announced their agreement to settle the dispute in open court. An order, titled “Agreed Order,” was subsequently entered but it was not signed by Appellant’s counsel; moreover, Appellant filed an objection to the entry of the order prior to it being approved by the court. The transcript of the agreement announced in court reveals that the so-called “Agreed Order” does not contain a material condition to the fulfillment of the agreement, that Appellant “is going to be borrowing money in order to come up with the funds necessary to offset that and pay these amounts to these other two individuals, so that’s part of the agreement.” We find the denial of Appellant’s motion to set aside the so-called Agreed Order causes an injustice to Appellant; accordingly, we reverse the denial of Appellant’s Rule 59.04 motion to set aside the November 3, 2010 Agreed Order. The trial court also found that performance under the agreement was not a legal impossibility, meaning that Appellant could obtain the requisite loan. We have determined the evidence preponderates against this finding because Appellant demonstrated that, due to the current appraised value of the property, she is unable to obtain the requisite financing. Accordingly, we reverse and remand for further proceedings consistent with this opinion to the extent necessary to complete the administration of the decedent’s estate. |
Dickson | Court of Appeals | |
Equity Mortgage Funding, Inc. of Tennessee et al. v. Joe Bob Haynes
The issue in this case is which of two deeds of trust has priority. Deed of trust A was executed before deed of trust B was executed; A was also registered before B was registered, but after B was executed. We affirm the chancellor’s decision that A has priority over B and that equitable estoppel does not apply to change this result. |
Wilson | Court of Appeals | |
Laundries, Inc. v. Coinmach Corporation v. Carla Moyer, et al.
Plaintiff filed an action to recover $150,000 due on a promissory note executed in conjunction with the purchase of its assets. Defendant admitted that it had not paid the full amount of the promissory note but denied that the amount was due, and asserted a counterclaim contending, inter alia, that the plaintiff had breached the asset purchase agreement, committed misrepresentation and not disclosed material facts with respect to the transaction, had fraudulently induced defendant to close on the transaction, and that plaintiff had been unjustly enriched. Plaintiff filed a motion for dismissal and for judgment on the pleadings, which the trial court granted. Defendant appeals. Finding that the causes of actions asserted in defendant’s counterclaim failed to state a claim for relief, we affirm the dismissal of the counterclaim. We reverse the grant of the motion for judgment on the pleadings and remand the case for further proceedings. |
Davidson | Court of Appeals | |
Shaun L. Tyus v. Pugh Farms, Inc., et al.
This appeal arises from injuries Plaintiff sustained after being assaulted by a co-worker while working for the Defendants. Plaintiff filed a complaint against the Defendants alleging vicarious liability for the assault committed by the co-worker, and liability for the negligent hiring, supervision, and retention of the co-worker, and liability for negligent and intentional infliction of emotional distress. Subsequently, the trial court granted summary judgment in favor of the Defendants after concluding that they owed no duty to Plaintiff and that the assault was not within the co-worker’s scope of employment. Thereafter, Plaintiff filed a motion under Rule 60.02 of the Tennessee Rules of Civil Procedure and a motion to recuse. The trial court granted the Rule 60.02 motion, denied the motion to recuse, and Plaintiff appealed. After reviewing the record, we affirm in part, reverse in part, and remand for further proceedings. |
Dyer | Court of Appeals | |
Casey E. Bevans v. Rhonda Burgess et al.
Prospective buyer who signed real estate sales contract sued seller, seller’s real estate agent and broker, and the actual buyers for breach of contract, violation of the Tennessee Consumer Protection Act, and specific performance. The trial court granted summary judgment in favor of the defendants on the ground that there was no enforceable contract. We affirm. |
Wilson | Court of Appeals | |
The Farmers Bank v. Clint B. Holland, et al.
This appeal arises out of a bank’s suit seeking to reform a deed of trust to correct a mutual mistake, prevent unjust enrichment, and impose an equitable lien against the defendants’ property. The bank appeals the finding that there was no mutual mistake and the dismissal of the complaint. Because the order appealed does not resolve all claims, we dismiss the appeal for lack of a final judgment and remand the case. |
Sumner | Court of Appeals | |
Cynthia H. Kovacs-Whaley, Director and Shareholder of Wellness Solutions, Inc. v. Wellness Solutions, Inc. et al.
Plaintiff, an employee, shareholder, and director of Wellness Solutions Inc., filed this action against the Company and shareholders Steven Scesa and Laura Reaves following the termination of Plaintiff’s employment with Wellness Solutions, Inc., asserting a shareholder derivative action and claims for breach of fiduciary duty and duty of good faith. Following her termination and the initiation of this action, the Company exercised a call option contained within the Shareholders’ Agreement and purchased Plaintiff’s stock.Plaintiff then amended her complaint to include claims for breach of contract and false light invasion of privacy against Mr. Scesa. The trial court summarily dismissed all of Plaintiff’s claims. We reverse the summary dismissal of Plaintiff’s claim for breach of contract finding there are genuine issues of material fact. We also reverse the summary dismissal of Plaintiff’s claim for false light invasion of privacy finding that Mr. Scesa, as the moving party, failed to negate the essential element of damages or demonstrate that Plaintiff cannot prove the essential element of damages at trial. We affirm the summary dismissal of Plaintiff’s claims for breach of fiduciary duty, breach of the duty of good faith, and breach of the duty of loyaltyupon the finding the Defendants demonstrated thatthe business judgment rule applies to their decisions at issue, which negates an essential element of each of these claims. Further, we deny Defendants’ request for attorneys’ fees pursuant to Tennessee Code Annotated § 47-56-401(c) upon the finding that Plaintiff did not properly bring a shareholder’s derivative action. |
Davidson | Court of Appeals | |
The Estate of Noel C. Hunt, III, H. Wayne Grant, Executor v. Trisha L. Jolley Hunt
Appellant Estate sought declaratory judgment against Appellee widow for return of proceeds from the widow and Decedent’s jointly filed federal and state tax returns. The Estate contends that, under an Antenuptial Agreement entered by and between Decedent and Appellee, the income tax refunds were Decedent’s separate property, which thus belong to the Estate. Appellee widow contends that the filing of a joint tax return transmuted the separate property into marital property and, in the alternative, that a tenancy by the entirety was created in the tax refunds. The trial court found that, although the tax refunds were Decedent’s separate property under the Antenuptial Agreement, part of those proceeds should, nonetheless, pass to the wife. We conclude that the filing of a joint tax return does not create a property right, and that a tenancy by the entirety was not established. Consequently, as Decedent’s separate property, the tax refunds should have been awarded to the Estate. Reversed and remanded. |
Hamilton | Court of Appeals | |
David B. Todd, III et al. v. Trudy Campbell et al.
This is an appeal from a final judgment dismissing an inmate’s complaint. Because the inmate did not file his notice of appeal with the trial court clerk within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal. |
Davidson | Court of Appeals | |
Estate of Sue Bratton Thompson
This appeal involves an attorney fee award. The appellee attorney was hired to represent the executor of an estate. After handling the estate, the attorney submitted a fee request to the trial court. The beneficiary of the estate objected, but the trial court awarded the fee amount requested. The beneficiary appeals, arguing that the attorney fee request was so excessive that it should be disallowed entirely under White v.McBride, 937 S.W.2d 796 (Tenn. 1996). In the alternative, if the fee request is not disallowed in its entirety, the beneficiary contends that the trial court erroneously relied on a percentage formula in the local rule, and that the fee should be reduced because the attorney sought fees for work that was either delegated to others or which did not benefit the estate. We hold that the amount of the attorney’s fee request and fee award is excessive. While the case presents a close question as to whether any fee should be allowed, we conclude that the lawyer should not be precluded from receiving any fee, and so modify the fee award to a reasonable amount. |
Maury | Court of Appeals | |
Estate of Sue Bratton Thompson - Concur
I fully concur in the result reached by the majority in this case. However, I write separately to express a different conclusion regarding the applicability of White v. McBride, 937 S.W.2d 796 (Tenn. 1996), to the instant case. |
Maury | Court of Appeals | |
Estate of Sue Bratton Thompson - Concur
STEVEN STAFFORD, J., concurring. |
Maury | Court of Appeals | |
Commercial Bank, Inc. v. Raymond E. Lacy
This appeal results from the grant of summary judgment in favor of Appellee bank. Appellant defaulted on promissory notes executed in favor of Appellee, resulting in a foreclosure sale. After the sale, a foreclosure deficiency existed. The trial court granted summary judgment in favor of the bank, awarding deficiency damages including amounts for unpaid taxes on the property. Appellant appeals. Discerning no error, we affirm. |
Knox | Court of Appeals | |
State of Tennessee, ex rel. Rebecca Estes v. Michael Estes
This is a post-divorce child support case in which Michael Estes filed a petition to modify his child support obligation. The State of Tennessee is providing child support enforcement services to Rebecca Estes pursuant to Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq., and Tennessee Code Annotated section 71-3-124(c). The court modified the child support obligation pursuant to a child support worksheet but held Michael Estes in civil contempt for failure to pay support prior to filing the petition for modification. Father appeals. The judgment of the trial court is affirmed in part and reversed in part. |
Blount | Court of Appeals | |
James W. Swafford, Jr. v. Commissioner of Revenue
After the Tennessee Supreme Court declared the tax on unauthorized substances to be unconstitutional, Plaintiff taxpayer filed a claim with the Department of Revenue seeking a refund of taxes paid. The Commissioner of Revenue denied Plaintiff’s claim for refund on the grounds that it was filed beyond the applicable limitations period. Plaintiff filed suit challenging the denialinthe chancerycourt. The chancerycourtgranted the Commissioner’s motion to dismiss. Plaintiff appeals. We affirm. |
Davidson | Court of Appeals | |
E. Jay Mounger et al v. Charles D. Mounger, Jr. et al
The plaintiffs, in their capacity as executors of their mother’s estate, filed this action against their brother alleging that he caused the estate to lose the sale of a valuable piece of lakefront property by maliciously asserting a meritless claim to a portion of the property. The defendant represented himself in a jury trial. The jury awarded the estate $6,000,000. The defendant appeals the judgment entered on the jury’s verdict. We affirm. |
Roane | Court of Appeals | |
Tracy Rose Baker v. Jeffrey D. Baker - Concur
We have determined that we have no means of reaching the issue of the validity of the Agreed Order itself. I believe that the appropriate procedure to challenge the agreement at this point in time is by petition for post-conviction relief, which Mother is pursuing. Nonetheless, we are troubled by the procedure used herein that resulted in an original punishment of six months incarceration for Mother. |
Sumner | Court of Appeals | |
Tracy Rose Baker v. Jeffrey D. Baker
In this post-divorce dispute, the mother of the parties’ children appeals from an August 2010 order wherein the trial court revoked her probation for eighteen counts of criminal contempt and imposed the maximum sentence of 180 days. Pursuant to an April 2010 Agreed Order, Mother pled guilty to eighteen counts of criminal contempt and was sentenced to 180 days in jail; however, the entire sentence was suspended and she was placed on probation subject to revocation should she fail to comply with a plethora of conditions of probation. In July 2010, Father filed a Petition to revoke Mother’s probation. Following a hearing, the trial court found Mother in violation of her probation and ordered her to serve 180 days in jail. Mother appealed alleging that the Agreed Guilty Plea Order is void because the trial judge failed to conducta hearing before accepting the guiltyplea as required byBoykin v.Alabama, 395 U.S. 239 (1969) and Tennessee Rule of Criminal Procedure 11(b). This is not a direct appeal of the Agreed Guilty Plea Order, but a collateral attack of that order and, although this modest record suggests that the trial court may not have engaged Mother with the in-person colloquy required by Boykin and Rule 11(b), the record fails to establish that important fact. Thus, the Agreed Guilty Plea Order is not void on its face. However, the August order, specificallythe reasonableness of the sentence of 180 daysin confinementforviolating terms of probation, is on direct appeal. Considering the unique facts of this case, we find an effective sentence of 180 days is clearly excessive in relation to Mother’s acts and omissions while on probation and modify the sentence to provide for a total period of confinement of thirty (30) days. |
Sumner | Court of Appeals |
