The following Opinions are available for download:
Cases posted the week
of 06/24/2002
John Doe vs. Commissioner
George W. Hattaway of the Department of Children's Services of the State of
Tennessee - E2001-02732-COA-R3-CV View
Claiborne County - John Doe filed a petition in the
trial court challenging a final order of the Tennessee Department of Children
Services ("DCS") validating a report of minor physical abuse of a student by
Mr. Doe, the student's teacher. The trial court reviewed the record of the
administrative law judge ("the ALJ"). Upon doing so, the court concluded that
it "totally disagree[d] with all" of the ALJ's findings; it reversed DCS's
final order. DCS appeals. We find and hold that the trial court lacked subject
matter jurisdiction to review DCS's final order. Accordingly, we vacate the
judgment of the trial court.
Jan W. Gamble
vs. Alex Grady Gamble, III - E2001-01392-COA-R3-CV
View
Hamilton
County - This appeal involves the second attempt of Alex Grady Gamble,
III ("Husband") to modify his alimony obligations to Jan W. Gamble ("Wife"). In
the initial divorce proceeding, the parties agreed to, and the trial court
approved, the payment of "periodic" alimony to Wife which would vary depending
on Wife's income, if any. The first time Husband sought modification of his
alimony obligation, the parties agreed to fix the alimony payment at $700 per
month. An agreed order was entered by the trial court reflecting this change.
Over four years later, Husband filed a second petition to modify his alimony
payment, essentially claiming Wife no longer was entitled to receive
rehabilitative alimony. Wife filed a counter-petition seeking an increase in
alimony. Wife also denied she was receiving rehabilitative alimony, claiming
she was receiving alimony in futuro. The trial court agreed with Wife that the
alimony payment was properly classified as alimony in futuro. The trial court
also held Wife was entitled to an increase in alimony from $700 to $750 per
month. Husband appeals both of these determinations. We affirm.
Lorenzo Childress Jr. vs. Union Realty -
W2001-01742-COA-R3-CV View
Shelby County - Plaintiff lessee in this case sued
defendant landlord for damages associated with loss of personal property,
interruption of business, and lost profits which resulted from the collapse of
a roof and flooding of plaintiff's leased medical offices. The jury awarded
plaintiff $168,000.00 in damages. Defendant appeals, arguing that this is, in
effect, a subrogation suit by plaintiff's insurance carrier. We find no
evidence that this is a subrogation suit and affirm judgment for
plaintiff.
Mitzi Lyne vs. George Price -
W2000-00870-COA-R3-CV View
Shelby County - This is an intentional interference
with employment case. An at-will employee worked as a secretary for a
university's athletic department. The employee was discharged when she
allegedly refused to cooperate with her supervisor and remain silent about
conduct she believed was illegal and in violation of the university's policies.
The employee filed a lawsuit against, among others, her former supervisor in
both his individual and his official capacities for intentional interference
with her employment with the university. The trial court dismissed the
complaint in its entirety. The employee appeals the dismissal of the claims
against the former supervisor in his individual capacity. We reverse, finding
that the employee's complaint states a cause of action based on the allegations
that the employee's supervisor procured her discharge to further his own
personal interests and for reasons unrelated to furthering the interests of the
university.
Calvin Tankesly v. Sgt. Pugh,
et al. - M2000-01520-COA-R3-CV View
Calvin Tankesly v. Sgt. Pugh, et al. -
M2000-01520-COA-R3-CV (Dissent)
View
Davidson
County - Petitioner, a state inmate, filed the underlying pro se
petition for writ of certiorari to challenge the result of a disciplinary
proceeding against him. The trial court dismissed the suit for failure to state
a claim. We affirm.
Kuehne & Nagel,
Inc. v. Preston, Skahan & Smith International, Inc. -
M1998-00983-COA-R3-CV View
Davidson County - This appeal involves a contract
dispute between a customs broker and an importer of Russian vodka. The customs
broker sued the importer in the Davidson County General Sessions Court seeking
to recover $4,781.16, and the importer counterclaimed alleging fraud, breach of
fiduciary duty, and usury. After the general sessions court dismissed both
cases, the parties appealed to the Circuit Court for Davidson County. On the
day of trial, the trial court denied the importer's motion to exclude nine
invoices that the customs broker had failed to produce during discovery.
Thereafter, the trial court, sitting without a jury, awarded the customs broker
a $4,623.16 judgment and dismissed the importer's countersuit. On this appeal,
the importer asserts that the trial court erred by refusing to exclude the nine
invoices and that the evidence preponderates against the judgment. We have
determined that the trial court did not abuse its discretion by denying the
importer's motion in limine and that the evidence supports the judgment for the
customs broker. Accordingly, we affirm the judgment.
David Swett, Sr. v. Grace Z. Aleman Swett -
M1998-00961-COA-R3-CV View
This
appeal involves the dissolution of a nine-year marriage. Following a bench
trial in the Circuit Court for Davidson County, the trial court found
both parties to be at fault but awarded the divorce to the wife. The court also
granted the parties joint custody of their son and divided their property. On
this appeal, the wife asserts that the trial court erred by concluding that her
conduct contributed to the divorce and by refusing to give her sole custody of
the parties' son. Both parties take issue with the manner in which the trial
court divided their property. The wife asserts that the trial court erred by
classifying the husband's interest in the real property on which his family's
restaurant is located as separate property and by failing to award her a
portion of the appreciation in the value of his family restaurant business. The
husband takes issue with the trial court's refusal to award him certain items
of household furnishings. Finally, the wife asserts that she is entitled to
post-judgment interest on the judgment used to equalize the distribution of the
marital estate, as well as her legal expenses incurred on appeal. We have
determined that the trial court's fault determination, joint custody
arrangement, and division of marital property are supported by the record.
Accordingly, we affirm the judgment and deny the wife's request for appellate
legal expenses.
James E. Gunter v. U.C.H.R.A.
and Kristi A. Poore - M1999-01591-COA-R3-CV
View
Fentress
County - In this appeal, the appellant, Mr. Gunter, filed a claim for
personal injury and property damages against a local governmental entity in
general sessions court. The governmental entity orally moved to dismiss citing
the Tennessee Governmental Tort Liability Act, which grants exclusive
jurisdiction over these cases to the circuit court. The general sessions court
denied the motion and transferred the case to circuit court, and that court
dismissed the action based on the statute of limitations. Mr. Gunter now
appeals the dismissal of his case by the circuit court.
K. Mahendra Chowbay v. Brian Davis, et al. -
M2001-01838-COA-R3-CV View
Davidson County - In this premises liability case, K.
Mahendra Chowbay ("Plaintiff") sued the owners of a club, Silverado's Saloon
and Dance Hall ("Silverado's"), for injuries Plaintiff received during an
assault by one of Silverado's patrons, Brian Davis. Plaintiff also sued Davis.
Silverado's owners, Pat Patton and Eight Track Management Company, LLC, d/b/a
Silverado's Saloon and Dance Hall ("Defendants"), filed a Tenn. R. Civ. P.
12.02(6) motion to dismiss which must be treated as a motion for summary
judgment because matters outside the pleadings were submitted to the trial
court. Defendants contended in their motion that since Davis' assault of
Plaintiff occurred on property neither owned nor operated by Defendants,
Defendants owed no duty of care to Plaintiff to protect him from such an
assault. The trial court granted Defendants' motion. Plaintiff appeals. We
affirm.
Lawrence County v. Jerry
Brewer, et al . - M2001-00078-COA-R3-CV
View
This matter involves a
dispute over payment of solid waste disposal fees, which the Lawrence
County Commission attempted to charge the citizens of Lawrence County, and
application of late payment penalties to these fees. Lawrence County filed
complaints in order to collect overdue solid waste fees that the Commission
allegedly enacted on May 25, 1999 by Resolution #11052599. The trial court
determined that Resolution #11051599 did not impose any solid waste fees on the
residents of Lawrence County and dismissed Plaintiff's complaints. We affirm
the trial court.
Charles Dallas Cauthern,
et al. v. City of White Bluff, Tennessee - M1998-00991-COA-R3-CV
View
Dickson
County - This appeal stems from two landowners' efforts to change the
zoning classification of their property from residential to commercial and
industrial. After the White Bluff Town Council denied their request, the
landowners filed a petition for writ of common-law certiorari in the Chancery
Court for Dickson County alleging that the council's action was invalid because
one council member who had recused himself from voting on the proposed zoning
change actively opposed their request and caused another council member to
recuse himself. The trial court, sitting without a jury, denied the landowners'
petition, and the landowners have appealed. Treating the petition as a
complaint of declaratory judgment, we have determined that the effectiveness of
the council member's recusal is a nonjusticiable political question.
Accordingly, we affirm the trial court's conclusion that the landowners were
not entitled to judicial relief.
Tracey L.
(Yanusz) Taylor v. John J. Yanusz - M2001-02760-COA-R3-CV
View
Sumner
County - This appeal involves a dispute over the custody of a
five-year-old boy. His parents were divorced following his mother's
extramarital affair. Their marital dissolution agreement established a joint
custody arrangement with the father having primary physical custody. Following
an unsuccessful two-year reconciliation effort, the child's mother petitioned
the Sumner County General Sessions Court for sole custody. The father insisted
that the child's circumstances had not changed and that he continued to be more
fit than the mother to be the child's primary custodian. The trial court,
sitting without a jury, determined that the child's circumstances had changed
and that the child's interests would be best served by placing him in his
mother's custody. The father asserts on this appeal that the child's
circumstances have not changed materially and that the evidence does not
support giving sole custody to the mother. While we have determined that the
child's circumstances changed following his parents' divorce, we have
determined that the evidence preponderates against the trial court's conclusion
that the changes are so escalating and dangerous that they required a change in
the original custody arrangement. Accordingly, we vacate the order awarding the
mother sole custody of the child and remand the case for further
proceedings.
Amy Wilson/Judith Johnson/Daniel
Powell vs. Woodland Presb. Church - W2001-00054-COA-R3-CV
View
Shelby County
- This case involves the application of protective covenants in a residential
subdivision. The plaintiffs are homeowners in the subdivision. The defendant
school is located adjacent to the subdivision and also owns two lots in the
subdivision. These two lots are near the plaintiffs' lots. All lots in the
subdivision are subject to a protective covenant which limits structures to one
or two family dwellings and incidental outbuildings. The school began building
a playground on its lots. The plaintiff homeowners filed a lawsuit to enforce
the protective covenants. After trial, the trial court ordered the removal of
permanent playground equipment but allowed use of movable playground equipment
on the school's lots. The school then obtained the approval of a majority of
the lot owners in the subdivision of an amendment to the covenants to remove
the restrictions from the two lots owned by the school. In light of this, the
school filed a motion to modify the judgment. The trial court denied the
motion, finding that the amendment was void because it did not apply to all
lots within the subdivision. The school appealed. We affirm, finding that the
homeowners are not barred from enforcing the protective covenant and that,
because the amendment to the covenant was neither applicable to all of the lots
subject to the covenant nor approved by nearby affected lot owners, the
amendment was invalid.
Jimmy Pardue vs.
Theresa Pardue - W2001-01731-COA-R3-CV
View
Fayette
County - This is an appeal from the trial court's decision denying
appellant's motion to void an Irreconcilable Differences divorce decree because
it was granted within ninety-days of the divorce's filing. Though the appellant
sought the voiding of the decree as alternative relief, it appears the essence
of the relief sought is child support modification. Thus, the attempt to void
the decree is a collateral attack on the judgment and the ninety-day
requirement cannot be used in a collateral attack to void a divorce
decree.
Durnelco, Inc. vs. Double James
- E2001-02010-COA-R3-CV View
Hamilton County - This case involves the interpretation of
a commercial lease agreement. The tenant, Durnelco, Inc. ("Durnelco"), filed a
complaint for declaratory judgment, seeking a declaration that it properly
terminated the lease agreement on July 31, 2000. Durnelco also asked that it be
permitted to remove, at its expense, certain improvements made by it to the
leasehold premises, including some flooring, walls, doors, windows, bathroom
fixtures, and exterior decking. The present landlord, Double James, LLC
("Double James"), answered and filed a counterclaim asserting that Durnelco had
breached the lease and had refused to surrender possession of the premises. It
sought damages as a result of Durnelco's alleged holdover tenancy. The trial
court allowed Durnelco to remove only two signs and certain light fixtures. The
court awarded Double James $7,000 in rent for the period of July through
December, 2000. Durnelco appeals. We affirm.
William Lindgren & Melanie Lindgren vs. City of
Johnson City - E2001-01676-COA-R3-CV View
Washington
County - Plaintiff was injured by falling on defendant's sewer
covering. The Trial Court found for plaintiff and awarded damages against City.
On appeal, we affirm finding of liability, but vacate award of damages and
remand with instructions to determine the total amount of damages, find
percentage of fault, and then enter judgment in accordance with the
Governmental Tort Liability Act. We Affirm in Part, Vacate in Part and Remand.
In Re: Mackenzie Marlowe, Gregory Marlowe
vs. Stacy Smith - E2002-00105-COA-R3-CV View
Unicoi
County - In this action the Trial Judge changed custody of the minor
child to the father from the mother. On appeal, we reverse.
State v. David Black - M2000-02935-COA-R3-CV
View
Sumner
County - Petitioner sought a second restoration of citizenship rights
after his sentence for a felony conviction expired. The State opposed the
motion primarily on the basis of Mr. Black's pre-conviction conduct and the
fact he had previously had his rights restored. The trial court denied
restoration of the right to hold public office but restored the right to vote.
We affirm the restoration of the right to vote and vacate the order denying the
right to seek and hold public office.
Kevin Sanders v. Jerry Mansfield -
M2001-01893-COA-R3-CV View
Lincoln County - Plaintiffs appeal an injunction
preventing them from interfering with county maintenance of a public road
running through their property. We affirm the trial court in this matter and
uphold the injunction against Plaintiffs.
Cheryl Nichols v. Transcor America -
M2001-01889-COA-R9-CV View
Davidson County - A female prisoner who was allegedly
raped by an employee of TransCor America, Inc., an inmate transportation
company, brought suit against the company for negligence and breach of
contract. The trial court granted partial summary judgment to the defendant
company on the negligence claim, ruling among other things that it is not a
common carrier under Tennessee law. The court also denied the company's motion
for summary judgment on the plaintiff's contract claim. Both parties filed
applications for an interlocutory appeal, which we granted. We affirm the trial
court as to both issues.
Cases posted the week of 06/17/2002
C.M.R., et al vs. L.S.A . -
E2001-02972-COA-R3-JV View
Bradley County - In this paternity action, the trial
court dismissed the petition on the ground that it was filed outside the period
of the applicable statute of limitations. The petitioners appeal, arguing that
the trial court erred in finding that the statute of limitations for paternity
actions, T.C.A. § 36-2-306(a) (2001), begins to run on the date of a
child's 18th birthday. We affirm the judgment of the trial court.
The Polk County Board of Education vs.
The Polk County Education Association - E2001-02390-COA-R3-CV
View
Polk
County - A declaratory judgment action was filed by the Polk County
Board of Education ("The Board") seeking a declaration that it did not have to
arbitrate two grievances filed by the Polk County Education Association
("Association") after the Board unilaterally implemented two new policies. The
policies at issue involve increasing the workday of the teachers by 30 minutes
by requiring teachers to perform "bus duty", and implementation of a dress
code. The trial court held that lengthening the workday was a matter suitable
for arbitration, but concluded the dress code was not. We affirm the trial
court's conclusion as it pertains to lengthening the workday, but vacate and
remand for further proceedings its decision on the arbitrability of the dress
code.
Lance Morris vs. Collis Foods
- W2001-00918-COA-R3-CV View
Madison County - This appeal involves a suit against
a restaurant for a tort committed by a waitress. The appellant visited the
restaurant on a crowded night. After the appellant's first waitress quit,
another waitress took appellant's order. Following a long wait for his food,
the appellant approached his waitress and words were exchanged. The waitress
threw an object at the appellant, which caused injures. The appellant filed
suit against both the restaurant and waitress. The relevant portion of the
appellant's suit against the restaurant relied on the doctrine of respondeat
superior. The court granted a motion for summary judgment filed by the
restaurant, holding that the waitress was not acting within the scope of her
employment. For the following reasons, we affirm.
Steven Williams vs. Margaret
Williams - W201-00101-COA-R3-CV
View
Shelby
County - This appeal arises from a divorce action. We are asked to
review the trial court's award of child custody, rehabilitative alimony and
attorney's fees to the wife. We affirm. We additionally award wife reasonable
attorney's fees incurred in this appeal.
Chemical Residential vs. Donna Hodge
- W2000-02958-COA-R3-CV View
Madison County - This case involves the negligent
impairment of a security interest. Plaintiff Chemical Residential Mortgage
Corporation held a note and deed of trust on the subject real property.
Subsequently, defendant Commercial Credit, Inc., negligently executed and filed
a release deed on the property. Later, defendant Southern Financial made a
second loan to the debtor secured by the same property. After Chemical
Residential realized that its deed had been released in error, it brought the
instant declaratory judgment action against Southern Financial and Commercial
Credit, seeking a declaration that its deed was senior to that of Southern
Financial. Southern Financial filed a cross-claim against Commercial Credit for
the impairment of its security interest. The trial court found in favor of
Chemical Residential and Southern Financial against Commercial Credit, and held
that Chemical Residential's deed was senior to that of Southern Financial. On
the cross-claim, the trial court awarded Southern Financial damages against
Commercial Credit in an amount equal to the total amount due on the secured
note. Commercial Credit now appeals, arguing, inter alia, that the trial
court's measure of damages was erroneous. We reverse on the issue of damages
and remand for a redetermination of those damages.
Jack Parks ex rel. Michael Parks vs. Timothy
Hopkins - E2001-00830-COA-R3-CV View
Washington
County - Jack Parks, in his capacity as Conservator for his son,
Michael Parks, sued Timothy Hopkins seeking compensatory and punitive damages
based upon allegations essentially reciting that the defendant wrongfully
converted funds belonging to the plaintiff's ward, who is apparently
incompetent to handle his own affairs. At the conclusion of the plaintiff's
proof at a bench trial, the defendant moved to dismiss the complaint pursuant
to Tenn. R. Civ. P. 41.02. The trial court found that the complaint was filed
outside the applicable statutes of limitations and that the plaintiff had not
sustained his burden of proof "under any theory." A judgment was entered
dismissing the complaint in its entirety. We affirm.
Carolyn Jones v. TennCare -
M2001-01065-COA-R3-CV View
Davidson County - Beginning in 1994, the Bureau of
TennCare ("TennCare") provided insurance coverage for home health services for
one its enrollees, Carolyn Jones ("Jones"), who is bed-ridden due to rheumatoid
arthritis. In 1997, TennCare denied Jones coverage for home health services,
and Jones appealed this determination. The Administrative Law Judge held
TennCare was not required to provide coverage for home health services to Jones
because the services are not medically necessary for her. Under the Uniform
Administrative Procedures Act, Jones appealed the administrative agency's
determination to the Chancery Court of Davidson County ("Trial Court") which
affirmed the determination. Jones now appeals to this Court. We affirm.
Carolyn Stovall v. Lois Clarke -
M2001-00810-COA-R3-CV View
Carolyn Stovall v. Lois Clarke -
M2001-00810-COA-R3-CV View
Williamson County - This is a medical malpractice case
against two physicians which was dismissed on motions for summary judgment upon
a finding there were no disputed issues of fact and the defendants were
entitled to judgment as a matter of law because the plaintiff's experts were
disqualified under the locality rule.
Jerry Walker v. Ricky White -
M2001-02438-COA-R9-CV View
Macon County - This is an interlocutory appeal by
permission which raises issues of first impression concerning the federal Right
to Financial Privacy Act and the Tennessee Financial Records Privacy Act. We
first must determine whether state courts retain concurrent jurisdiction to
resolve claims brought against a bank by its customer arising under the federal
Act. We hold that federal court jurisdiction under the Act is permissive. State
courts therefore retain concurrent jurisdiction over such claims. We further
hold that the Tennessee Financial Records Privacy Act is not applicable to
federal agencies which issue subpoenas for bank records. The furnishing of
information pursuant to a subpoena issued by a federal agency is governed in
Tennessee by the federal Right to Financial Privacy Act. Accordingly, we affirm
the trial court's order denying summary judgment on these issues to the
Defendant.
Tammy Pierce v. Michael
Pierce - M2001-01727-COA-R3-CV View
Davidson
County - In 1994, a father, who had failed to comply with a child
support order, was sentenced to jail for six months or until he paid the
arrearage of $23,800. A month later the trial court suspended the sentence upon
the defendant's promise to pay $10,000 immediately and to pay the balance by
October 15, 1995 in quarterly installments. The order provided that if the
defendant failed to meet the conditions in the suspension order the suspended
sentence would be revoked if the mother filed an appropriate motion. In 2001,
the trial court found the defendant guilty of criminal contempt and ordered him
to serve the balance of the six month sentence for failing to comply with the
1994 suspension order. We reverse the order finding the defendant in criminal
contempt.
James Kelley v. John Cage
- M2001-00702-COA-R3-CV View
Davidson County - This appeal involves the granting of a
summary judgment motion in a medical malpractice case. The issue is whether the
trial court properly granted summary judgment on the basis that there was never
a physician/patient relationship between the decedent, Lillie Donnette Kelley,
and Dr. John Cage, a cardiologist, and an employee of Mid-State Cardiology
Associates, P.C..
Patrick McGee v.
Timothy Best - M2001-01365-COA-R3-CV View
Davidson
County - This case involves the termination of membership and
employment of a member of an LLC. The terminated member and employee filed suit
against the LLC and the other members thereof alleging breach of contract,
breach of covenant of good faith and fair dealing, breach of fiduciary duty,
civil conspiracy, unfair competition, fraud, and misrepresentation. The trial
court granted defendants' motion for judgment on the pleadings as to all claims
except the claim for breach of contract and breach of the covenant of good
faith and fair dealing. Thereafter, the trial court granted defendants' motion
for summary judgment on the remaining two claims. Plaintiff appeals. We affirm,
modify, reverse in part, and remand.
Frank Porter v. Ralph Freedle -
M2001-01892-COA-R3-CV View
Robertson County - This appeal involves a dispute over a
roadway easement and interests in the use of a spring and springhouse. The
chancery court determined that appellants abandoned the interest in the roadway
easement and access to a spring and springhouse and dismissed appellants' suit
for an injunction. Appellants challenge the chancery court's decision that the
rights were abandoned. As discussed below, we affirm the judgment of the
chancery court that there was clear, unequivocal evidence that appellants
abandoned any interest.
Estate of Bruce
Wyatt - W2001-00185-COA-R3-CV View
Lake County - This is a claim by devisees to enforce their
right to exoneration under a will. The decedent died testate and devised to his
three children real property that was encumbered by a mortgage. For a few
years, the children paid the mortgage on the property. However, after realizing
that the debt belonged to the estate, they filed a motion to compel the
executrix of the will to make the mortgage payments and thereby exonerate the
realty from the lien. The executrix objected, claiming that the time to file
such a claim had expired under the Claims Act, Tennessee Code Annotated §
30-2-306(c). The trial court granted the motion to compel the executrix to pay
the mortgage, finding that the Claims Act was inapplicable because the devisees
were not "creditors" under the Act. The executrix now appeals that decision. We
agree with the reasoning of the trial court, and therefore affirm.
Kristina Brown vs. Tom Taylor -
W2000-02890-COA-R3-CV View
Obion County - This is a constitutional challenge to
Tennessee Code Annotated § 67-1-112, which outlines how a dealer may pass
along a business tax to its customers. The plaintiffs bought automobiles from
the defendant automobile dealers. The dealers "passed on" their business tax
expense to the plaintiffs in an itemized invoice listing the tax as an element
of the purchase price. The plaintiffs brought this class action arguing, inter
alia, that Section 67-1-112 is unconstitutional because it unlawfully delegates
taxation authority to the automobile dealers, and because the discretion
granted to the dealers in the statute violates the equal protection clause of
the Tennessee Constitution. The trial court upheld the constitutionality of the
statute and granted summary judgment in favor of the defendants. Plaintiff
Bobby Davidson now appeals. We agree with the reasoning of the trial court, and
therefore affirm.
Tn Farmers Mutual vs. Ford
Motor - W2001-00046-COA-R3-CV View
Carroll County - This is a consolidated appeal of three
products liability cases. Three vehicles manufactured by the defendant
automobile company were destroyed by spontaneous combustion, allegedly caused
by a defective steering column. No personal injuries resulted from the fires,
and no other property was damaged. The plaintiff insurance company, which
insured the cars, paid the owners the value of the vehicles. The insurance
company, as subrogee for the insureds, then filed the actions below, seeking to
recoup the payments from the defendant automobile manufacturer to the insureds
on a theory of products liability. The trial court dismissed the actions,
holding that the economic loss doctrine precluded recovery in tort, because the
product damaged only itself in each case. The plaintiff insurance company now
appeals. The appeals were consolidated for purposes of our review. We affirm
the trial court in all respects, finding that the economic loss doctrine
precludes recovery in these cases.
Cases posted the week of 06/10/2002
Martin Door & Window v. Thomas Donegan
d/b/a The Construction Team - M2001-01230-COA-R3-CV
View
Martin Door & Window v. Thomas Donegan -
M2001-01230-COA-R3-CV (Concur) View
Martin Door & Window v. Thomas Donegan -
M2001-01230-COA-R3-CV (Second Concur) View
Wilson
County - Notwithstanding that plaintiff, a materialman, was aware that
a general contractor was constructing a residence for the owner, upon
non-payment of invoices submitted to the contractor, the plaintiff filed a lien
against the owner's property, claiming a right by separate contract. The
Chancellor disagreed, holding that only a contractor may file a lien and,
further, that the plaintiff did not contract with the owner as alleged. We
affirm.
Tennsco Corp. v. Elias Attea
- M2001-01378-COA-R3-CV View
Williamson County - This is a complaint to remove a cloud
on the title to two parcels of property. The Chancery Court of Williamson
County granted summary judgment to the plaintiff, holding that as a matter of
law a restrictive covenant in a prior deed in the plaintiff's chain of title
did not run with the land and did not create an equitable servitude. We affirm.
Charles Watson v. Margaret Ashley -
M2001-00668-COA-R3-CV View
Franklin County - In this action to set aside a deed, the
Circuit Court of Franklin County held that the deed had been procured by
persons in a confidential relationship with the grantor and that the
presumption of undue influence had not been rebutted by clear and convincing
evidence. We affirm the trial court's action in setting aside the deed.
Kaila Sanders a/n/k/ Cathi Williams,dec'd
vs. Tracie Traver, All Women's Care - E2001-2926-COA-R3-CV
View
blount
County - The Trial Judge dismissed the action filed pursuant to the
Governmental Tort Liability Act on the ground the statute of limitations had
run, and Tenn. R. Civ. P. 6.01 did not apply to governmental entities. On
appeal, we reverse.
Judy Burroughs vs.
Robert Magee - W2001-00238-COA-R3-CV View
Lauderdale
County - This is a personal injury and wrongful death case. The
plaintiff and her husband were involved in an automobile accident. The
plaintiff sued the driver of the other vehicle for her husband's wrongful death
as well as for injuries she sustained in the accident. The plaintiff named the
driver's physician as an additional tortfeasor, alleging that the physician
negligently prescribed drugs to a known drug addict, negligently prescribed two
contraindicated drugs, and negligently failed to warn his patient of the risks
of driving while under the influence of the drugs. The trial court granted the
physician's motion for summary judgment on the grounds that the physician had
no duty to unidentifiable third parties such as the plaintiff. We affirm in
part and reverse in part, finding that the physician owed a duty to the
plaintiff and the decedent to warn his patient of the risks of driving while
under the influence of the prescribed drugs.
George Hamilton, V v. Stardust Theatre -
M2001-00678-COA-R3-CV View
Davidson County - A singer/songwriter brought a copyright
infringement suit against a country music theater, its manager and its owner.
The defendants admitted to the unlicenced use of the plaintiff's trademark, but
argued that the plaintiff did not suffer any damages from their infringement.
The trial court did not agree, and awarded the plaintiff over $90,000. We
reverse in part, because we believe that the evidence preponderates against the
court's award of damages.
David Stovall v.
Christopher Dunn - M1999-00200-COA-R3-CV View
Maury County
- This appeal involves a state prisoner's civil rights action against a private
lawyer appointed to represent him in a post-conviction proceeding. The prisoner
filed suit against his former lawyer in the Circuit Court for Maury County
alleging that the lawyer, motivated by racial bias, had intentionally deprived
him of an opportunity to seek appellate review of an adverse decision of the
Tennessee Court of Criminal Appeals and had refused to provide him with his
case file. The lawyer moved for summary judgment on the ground that the
prisoner's complaint was barred by the statute of limitations. The trial court
granted the summary judgment, and the prisoner has appealed. We have determined
that the trial court erred by granting the summary judgment because there is a
genuine factual issue regarding whether the prisoner's complaint is
time-barred.
Health Cost Controls
vs. Ronald Gifford - W2001-02267-COA-RM-CV
View
Weakley
County - This is an insurance case on remand from the Tennessee
Supreme Court. The Court has directed us "to reconsider the case on its merits
in accordance with . . . York v. Sevier County Ambulance Auth., 8 S.W.3d 616
(Tenn. 1999)," which was decided after the appellate briefs were filed in the
initial appeal. In York, the Supreme Court established that the "made whole"
doctrine, applicable in cases involving an insurer's subrogation rights, is
also applicable in cases involving an insurer's right to reimbursement for
amounts paid to the insured from another source. After careful consideration,
we find that York does not affect our original disposition of this case, and,
therefore, on remand, we affirm the decision of the trial court.
Contemporary Media vs. A.C. Gilless -
W2000-02774-COA-R3-CV View
Shelby County - This is a petition brought under the
Public Records Act. As part of an investigative story into the hiring practices
of the county sheriff's department, a local newspaper publisher sought
photographs from the personnel files of nineteen recently hired deputy
sheriffs. The sheriff's department denied the request because the newly hired
deputy sheriffs were in the pool of officers available for undercover work. The
publisher then filed a petition seeking disclosure of the photographs under the
Public Records Act. The trial court ordered that the sheriff's department make
the photographs available to the publisher. The sheriff's department appealed.
We reverse, finding that the requested photographs were exempted from the Act's
disclosure requirements.
Larry Littles
vs. Donal Campbell - W2002-00265-COA-R3-CV
View
Lauderdale
County - Petitioner, an inmate of the Tennessee Department of
Correction, filed a petition for writ of certiorari, seeking judicial review of
a disciplinary hearing at which the disciplinary board found him guilty of
Conspiracy to Violate State Law and sentenced him to punitive segregation. The
trial court granted respondents' motion to dismiss for, inter alia, failure to
state a claim. We affirm.
Dwayne Anderson
vs. State - W2001-01354-COA-R3-CV View
This is an appeal by a
plaintiff prisoner seeking review of the Tennessee Claims Commission's
dismissal of his case for lack of subject matter jurisdiction. The Claims
Commission dismissed the plaintiff's petition, finding that it did not have
jurisdiction to hear intentional tort claims. We affirm, finding that Tennessee
Code Annotated § 9-8-307 does not confer jurisdiction on the Claims
Commission to hear intentional tort claims or claims based on the negligent
deprivation of constitutional rights.
Natalya
Mazor vs. Kenneth Isaacman - W2000-01485-COA-R3-CV
View
Shelby County
- This is a dental malpractice case. The patient visited the defendant dentist
in August 1997 for routine root canal surgery. After the surgery, the patient
began experiencing "constant" pain in the tooth in which the root canal was
performed. She was told by the defendant dentist that this was pain ordinarily
felt after root canal surgery. In February 1999, the patient visited another
dentist who discovered that a piece of a drill bit had been left inside
patient's tooth during the previous root canal. In December 1999, the patient
filed a lawsuit against the defendant dentist for dental malpractice. The
defendant dentist filed a motion to dismiss, arguing that the patient did not
bring the claim within the one year statute of limitations. This motion was
granted and the patient now appeals. We reverse, finding that the patient had
one year from the time she discovered or should have discovered the foreign
object in which to file her lawsuit.
Victor Wingo vs. Dept of Correction -
W2002-00312-COA-R3-CV View
Lauderdale County - Petitioner, an inmate in custody of the
Tennessee Department of Correction, filed a petition for writ of certiorari
seeking judicial review of a disciplinary hearing wherein the inmate was found
guilty of assault and strong arm activity and received a deduction of one-year
in good time and was upgraded to maximum security. The trial court granted
respondent's motion to dismiss for failure to state a claim. We affirm.
Effie Louise Hayes vs. Roger Strutton, et
al - E2001-01765-COA-R3-CV View
Hamilton County - Plaintiff/Appellant, Effie Louise
Hayes, appeals the Hamilton County Circuit Court's judgment on the pleadings
dismissing her complaint wherein she asserted that the Defendants/Appellees,
Roger Strutton, Betty Strutton, Gary Lester and Mark Rothberger, defrauded her
of real property. We affirm the judgment of the Circuit Court.
John Foster vs. Larry Glenn -
E2001-01435-COA-R3-CV View
Knox County - The origin of this appeal was a detainer warrant
filed in the General Sessions Court by John Foster and Mamosa Foster against
Larry Glenn seeking possession of property occupied by Mr. Glenn pursuant to an
instrument styled "AGREEMENT FOR DEED." Mr. Glenn filed what he styles a
counter-complaint seeking damages for breach of contract and prevailed in the
General Sessions Court. Upon appeal the Circuit Court found in favor of the
Fosters, but awarded Mr. Glenn a judgment as to insurance proceeds received by
the Fosters as a result of a truck striking the house in question. Mr. Glenn
appeals the judgment of the Trial Court. We affirm.
Cases posted the week of 06/03/2002
Norman Power vs. Jefferson County Zoning
Appeals - E2001-02310-COA-R3-CV View
Norman Power and Mary Lynne
Power (collectively "the Powers") filed a petition for writ of certiorari
challenging the decision of the defendant Jefferson County Board of Zoning
Appeals ("the Board") finding that the Powers' commercial racetrack and motor
cross trail were not pre-existing uses entitled to the protection of the
"grandfather" statute, T.C.A. § 13-7-208 (1999). The Board, after hearing
conflicting evidence, determined that the subject property was not being used
as a racetrack or motor cross facility prior to the enactment of the Jefferson
County zoning ordinance that prohibits such use on the subject property. The
trial court affirmed the Board's ruling. We affirm.
Jamie Mason vs. Charles Mason, Jr. -
E2001-02208-COA-R3-CV View
Cocke County - This appeal from the Chancery Court of
Cocke County questions whether the Trial Court erred in failing to grant Mr.
Mason standard visitation with his minor son. We affirm the judgment of the
Trial Court.
Michael Baral vs. George
Bombard - M2000-02429-COA-R3-JV View
Davidson
County - This appeal arises from a dispute over the custody of Austin
Bombard, a minor child, and the termination of George Bombard's parental rights
on a finding of abandonment. The trial court dismissed the father's Petition
for Custody and granted custody of the child to Jocelyn and Michael Baral, the
child's maternal aunt and uncle. Mr. Bombard challenges the termination of his
parental rights and the trial court's custody order. We affirm the trial
court's termination of the father's parental rights and custody order. Costs of
this appeal shall be assessed to the appellant.
Discount Communications vs. BellSouth
Telecommunications - M2000-02924-COA-R12-CV View
Discount Communications, Inc.
purchases telephone services from BellSouth Telecommunications, Inc. and
resells the services at an increased rate to Discount's own residential and
commercial customers. Some of Discount's customers qualify for a Federal
Communication Commission program called Lifeline, which provides telephone
services at a reduced rate through federal and state subsidies. BellSouth and
Discount got into a dispute about whether their agreement required BellSouth
(1) to provide directory assistance to Discount's customers and (2) to pass the
$3.50 per month state subsidy through to Discount. The Tennessee Regulatory
Authority decided that the agreement required BellSouth to provide directory
assistance at no charge to Discount's customers and that BellSouth was not
required to forward the $3.50 monthly charge to Discount. We affirm
Sonya Engstrom v. Todd Engstrom -
M2001-01448-COA-R3-CV View
Wilson County - The trial court divided the marital
property of a divorcing couple, awarding the wife the marital home and the
husband his leather business. The husband appealed, arguing that the property
division was inequitable because the home was worth much more than the
business. We affirm the trial court.
Maurice
Karr v. Paul Gibson - M2001-01449-COA-R3-CV View
Davidson County
- This appeal arises from a complaint for a deficiency judgment filed by the
Appellee against the Appellant in the Chancery Court of Davidson County. The
trial court entered an order awarding the Appellee a deficiency judgment which
included interest at the note rate of six percent per annum. The trial court
also awarded the Appellee prejudgment interest at the rate of six percent per
annum, expenses, costs, and attorney's fees. The Appellee appeals the award of
prejudgment interest and, in part, the award of attorney's fees entered by the
Chancery Court of Davidson County. For the reasons stated herein, we reverse
and remand.
Charles Ivey v. Pat Hamlin -
M2001-01310-COA-R3-CV View
Cheatham County - 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.
Victoria Henry
v. Timothy Goins - M2000-02663-COA-R3-CV View
Hamilton
County - 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.
Nelda Age v. HCA Health Svcs.
dba Centennial Medical Center - M2001-01286-COA-R3-CV
View
Davidson
County - 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.
David Schwab v. David Miller -
M2001-00932-COA-R3-CV View
Williamson County - The Chancery Court of Williamson
County held that in order to claim a major benefit of an employment contract
the employee had to be employed when the other contingencies in the contract
were met. We affirm the lower court's interpretation.
Linda Plunk v. National Health Investors -
M1999-01596-COA-R3-CV View
Lawrence County - This appeal involves a nursing home
visitor who injured herself by stepping into a grassy depression in the
building's landscaping. The visitor and her husband filed suit in the Circuit
Court for Lawrence County alleging that the nursing home's owner had failed to
maintain the premises in a reasonably safe condition. A jury apportioned sixty
percent of the fault to the nursing home and forty percent to the visitor and
awarded the visitor $40,000 for medical expenses and permanent impairment. Both
parties filed post-trial motions after the trial court entered a $24,000
judgment for the visitor. The visitor and her husband sought a new trial or an
additur because the jury had not awarded damages for pain and suffering. The
nursing home filed a Tenn. R. Civ. P. 50.02 motion for a judgment in accordance
with its motion for a directed verdict. The trial court denied the nursing
home's motion and suggested a $5,000 additur. The nursing home accepted the
additur, and both parties appealed. The visitor asserts that the trial court
erred by failing to grant a new trial, and the nursing home asserts that the
trial court erred by denying its Tenn. R. Civ. P. 50.02 motion. We have
determined that the trial court erred by denying the nursing home's Tenn. R.
Civ. P. 50.02 motion because it was not reasonably foreseeable that visitors
would be walking on the grassy area where the plaintiff fell. Accordingly, we
reverse the judgment.
Tanya Plattenburg
v. Talley, Basham & Basham, Rogers Group, & John Doe, & State Farm
Insurance - M2001-01779-COA-R3-CV View
Coffeee
County - The Trial Court dismissed plaintiff's action, pursuant to
Tenn. R. Civ. P. 41.02, for failure to pay costs which had been assessed as a
sanction. On appeal, we affirm, as modified.
Kennedy v. Titan Specialized Services -
M2001-02696-COA-R3-CV View
Rutherford County - On appeal from Sessions Court, the
Chancellor allowed a set-off on the indebtedness. Plaintiff appeals, contending
defendant filed no pleading which would entitle him to a set-off. We affirm.
Columbia Advertising v. Ralph Isenhour
- M2001-01627-COA-R3-CV View
Davidson County - In this suit to collect payments for
advertising services allegedly rendered to defendant pursuant to an oral
agreement, the plaintiff failed to file an order setting the case for trial
within the time period allowed by an agreed scheduling order. Shortly
thereafter, the trial court dismissed the case for failure to prosecute. The
plaintiff filed a Tennessee Rule of Civil Procedure 60 motion seeking relief
from the order of dismissal on the grounds that by mistake, counsel had failed
to calendar the scheduling deadlines. The trial court found that plaintiff
failed to offer an adequate basis to grant relief from the order of dismissal
under Rule 60 and denied the motion. For the reasons set out in this opinion,
we reverse the decision of the trial court and remand this case for a trial on
the merits.
Tony Willis v. Dept of
Correction - M2000-01397-COA-R3-CV View
Tony Willis v. Dept of Correction -
M2000-01397-COA-R3-CV (Dissent) View
Davidson
County - Petitioners, state inmates, filed the underlying pro se
petition for common-law writ of certiorari to seek review of disciplinary
sanctions imposed on them by the Tennessee Department of Correction for
attempted escape. Petitioners alleged that their due process rights were
violated because: (1) they were not given sufficient notice of the hearing; (2)
their convictions were based upon information from a confidential informant;
(3) they were denied the right to call witnesses, and; (4) they were denied
access to exculpatory evidence. The trial court dismissed the suit for failure
to state a claim. Because the petition failed to allege sanctions that imposed
atypical and significant hardships beyond those ordinarily incident to prison
life, we affirm the decision of the trial court.
Nashville Sash & Door . v. TriStar
Builders - M2001-01160-COA-R3-CV View
Davidson
County - In this case Nashville Sash and Door, Inc. sued Tristar
Builders, Inc. and its two stockholders, Robert J. Ivy and Richard L. Cammeron
on a debt arising from credit extended under an application of credit. At the
conclusion of the plaintiff's proof the trial judge granted the defendants
motion under Rule 41 of the Tennessee Rules of Civil Procedure and dismissed
the complaint. Nashville Sash and Door, Inc. has appealed that decision. We
affirm the Trial Court.
Fleet One v. John
Cook - M2001-03048-COA-R3-CV View
Macon County
- This appeal challenges the dismissal of a defendant. The circuit court
granted John Cook's Tenn. R. Civ. P. 41.02 motion for involuntary dismissal and
found that he did not personally guarantee the debt of Bennett Hill Spring, LLC
when he signed the Credit Application as "Operations Manager." Appellant
challenges the circuit court's decision to grant the motion which dismissed
John Cook as an individual defendant. As discussed below, we affirm the
judgment of the circuit court granting John Cook's motion for involuntary
dismissal. The circuit court was correct that, from a reading of the contract
as a whole, it is not apparent that John Cook personally guaranteed payment by
signing the Credit Application.
David Frounfelker v. Identity Group -
M2001-02542-COA View
Putnam County - Plaintiff agreed to sell his company to
Defendant pursuant to an Asset Purchase Agreement. In addition to acquiring the
assets of Plaintiff's company, Defendant agreed to hire Plaintiff for a one
year term. The Asset Purchase Agreement contained an arbitration clause, and
the Employment Agreement provided judicial remedies in the event of a dispute.
Plaintiff sued Defendant for the breach of the Employment Agreement, asserting
that Defendant terminated his employment prior to the one year term. Plaintiff
determined his hiring date from the Asset Purchase Agreement. Defendant filed a
motion to compel arbitration, which the trial court denied. Defendant appeals
the trial courts ruling. We affirm.
Hutter
vs. Bray, Cohen, Kressin, Hash, Norton, Luhn - E2001-02408-COA-R3-CV
View
Blount
County - In plaintiff's action for conspiracy, fraud and malicious
harassment, the Trial Court dismissed the action for failure to state a claim
for which relief could be granted. We affirm.
Truan Meek vs. Earl Hall, dba Hall Realty &
Auction - E2001-02474-COA-R3-CV View
Blount County -
Sessions Court entered default judgment against defendant. Defendant attempted
to appeal to Circuit Court where that Court held appeal was not timely and
Court had no jurisdiction. We vacate and remand.
Cases posted the week of 05/27/2002
Paul Ivy vs. Alton Hesson -
W2001-01332-COA-R3-CV View
Lauderdale County - This is a 42 U.S.C. § 1983
prisoner case. The plaintiff, a state prisoner, brought this § 1983 action
in forma pauperis, claiming that his due process rights were violated because
he was disciplined in retaliation for filing a letter of complaint to the
appropriate authorities. The trial court dismissed the complaint without
prejudice, determining that the plaintiff did not submit an affidavit that
accurately documented his prior history of litigation as is required under
Tennessee Code Annotated § 41-21-805. The plaintiff now appeals. We
reverse, finding that the trial court erred in failing to allow the plaintiff
limited discovery to rebut the defendants' evidence that his affidavit was
incomplete.
Richard Madkins vs. State -
W2001-03002-COA-R3-CV View
Plaintiff was convicted of especially aggravated robbery and attempted
felony murder. The trial court sentenced Plaintiff to two consecutive sentences
of sixty years for each count. In an opinion filed on March 22, 1999, the
Tennessee Supreme Court reversed Plaintiff's conviction for attempted felony
murder, concluding that the offense did not exist in Tennessee. On March 28,
2001, Plaintiff sued the State of Tennessee in the Division of Claims
Administration. The State filed a motion to dismiss Plaintiff's action, which
the Claims Commission granted. Plaintiff appeals the decision of the Claims
Commission. We affirm.
Melissa Taylor vs.
Terry Taylor Jr. - W2001-02247-COA-R3-CV View
Chester
County - Husband moved the trial court to set aside a default judgment
and permanent parenting plan in this divorce action on the basis that the final
decree and permanent parenting plan differed significantly from the relief
sought in the complaint and temporary parenting plan filed by Wife. The trial
court denied the motion and Husband appeals. We reverse the decision of the
trial court insofar as it failed to grant Husband the relief sought.
Magdalene Miller vs. Mt. Laurel Chalets -
E2001-00863-COA-R3-CV View
Sevier County - Magdalene A. Miller fell down a flight of
stairs at a rental chalet in Gatlinburg. She and her husband, Robert Miller,
sued Bob Light, the owner of the chalet, and Mt. Laurel Chalets, Inc., the
rental agent for the chalet. Both defendants filed a motion for summary
judgment. Both motions were granted. We affirm.
Dianna Boarman vs. George Jaynes -
E2001-01049-COA-R3-CV View
Washington County - Dianna Boarman, Clerk and Master of
the Chancery Court for Washington County, brought this lawsuit pursuant to
T.C.A. § 8-20-101, et seq. (1993 & Supp. 2001), seeking salary
increases for her three chief deputy clerks. Defendant George Jaynes, the
Washington County Executive ("the County Executive"), answered, denying that
salary increases were necessary to enable Boarman to properly and efficiently
conduct the affairs and transactions of her office. The County Executive also
filed a counterclaim, seeking the elimination of a deputy clerk position in
Boarman's office. The trial court decreed salary increases for Boarman's three
chief deputy clerks and denied the County Executive's counterclaim. We affirm
the trial court's denial of the County Executive's counterclaim; but reverse
the trial court's judgment increasing the salaries of Boarman's three chief
deputy clerks.
State vs. Florence
Harrell - E2001-01710-COA-R3-CV View
Union
County - In this appeal from the Chancery Court for Union County the
Petitioner/Appellant, the State of Tennessee ex rel. Thomas J. Harrell,
contends that the Chancery Court erred in denying the State a judgment against
the Respondent/Appellee, Florence E. Harrell, for retroactive child support and
for reimbursement of AFDC benefits paid by the State on behalf of Mr. Harrell
and his and Ms. Harrell's two minor children. We affirm the judgment of the
Chancery Court.
Dept.of Children's Svcs vs.
LaShondra Whaley - E2001-00765-COA-R3-CV View
Bradley
County - This appeal from the Juvenile Court of Bradley County
questions whether the Trial Court erred in terminating the parental rights of
Ms. Whaley. We reverse the judgment of the Trial Court.
Jessie Bullington vs. Greene County -
E2001-01917-COA-R3-CV View
On April 3, 1995 – following the entry of a default judgment against
the unknown heirs of James Turner – real property that had been owned by
the late Mr. Turner was sold at a public tax sale to satisfy delinquent
property taxes due Greene County. On May 15, 1998, Jessie Bullington ("the
plaintiff") filed a "Complaint to Quiet Title and for Damages" against the
County; the purchaser at the tax sale; and the present owners of the subject
property, requesting, among other things, that "[t]he title to the property be
quited [sic] and the [plaintiff] be declared the owner in fee simple of said
property." The proof is clear that the plaintiff purchased the subject property
in 1992. He argues that, as the record title owner of the property, he was
entitled to actual notice of the delinquent tax suit filed by the County. The
defendants, on the other hand, claim that the notice by publication inserted in
a local newspaper pursuant to the order of the Greene County Chancery Court was
sufficient compliance with the requirements of due process under the facts of
this case. The defendants also contend that the plaintiff's suit is barred by
the statute of limitations, and, additionally, that it should be dismissed
because, so the argument goes, the plaintiff failed to make a sufficient
payment into court to cover the back taxes, "the bid" at the tax sale, and
other sums, all as required by T.C.A. § 67-5-2504(c) (1994) and as ordered
by the trial court. The court below dismissed the plaintiff's suit, finding
that he was not entitled to actual notice and that the deposit made by the
plaintiff into the registry of the court did not satisfy the requirements of
T.C.A. § 67-5-2504(c). Plaintiff appeals. We reverse and remand for
further proceedings.
Dept.of Children's Svcs vs.
T.K. - E001-01963-COA-R3-CV View
Hamilton County - The trial court terminated the parental
rights of T.K. ("Mother") with respect to her minor child, S.A.M. (DOB: April
12, 1999). Mother appeals, contending that the evidence preponderates against
the trial court's determination that there is clear and convincing evidence to
terminate her parental rights. We affirm.
Ronald Walker vs. Sherry Walker
-E2001-01759-COA-R3-CV View
Hamilton County - Ronald E. Walker ("Husband") and Sherry
K. Walker ("Wife") were divorced in 2001, pursuant to a final judgment. The
parties were awarded joint custody of their then almost sixteen year old child
("Child") with Husband serving as the primary physical custodian of the Child.
The Trial Court awarded Wife alimony in futuro and ordered Wife to pay child
support. Husband appeals the type of alimony awarded to Wife, the amount of the
alimony award, and the amount of Wife's child support obligation. We affirm, as
modified, and remand.
Vincent vs. Reid
Troutman, Executor In Re: Estate of George Vincent - E2001- 03035-COA-R3-CV
View
Campbell
County - George Vincent directed in his Last Will and Testament for
his Executor to pay "all my just debts." Mr. Vincent was solely responsible for
a mortgage on his home. This real estate passed to his nephew, William Vincent
("Plaintiff"), who was a joint tenant with the right of survivorship. A dispute
arose as to whether Mr. Vincent's estate was responsible for paying the
remaining balance owed on the mortgage, or whether Plaintiff was responsible
for same. The Trial Court concluded since Plaintiff became the sole owner of
the property after the death of his uncle, the real estate was not part of the
estate and Plaintiff was, therefore, responsible for the debt. We conclude the
mortgage was a "just debt" of the estate, and reverse.
Deborah Keller vs. Donald Keller -
E2001-01399-COA-R3-CV View
Bradley County - Appellant held in contempt by Trial Judge
was ordered not to have any guns whatsoever around the parties' minor child. We
affirm.
Connie Otis vs. Lily Frye -
E2001-02848-COA-R3-CV View
Loudon County - Plaintiff claimed damages from defendant's
motor vehicle sliding into plaintiff's vehicle. The jury returned a verdict for
defendant. On appeal, we affirm.
Alexis
Johnson and wife vs. Jessie Malone - E2001-02106-COA-R3-CV
View
Hamilton
County - Plaintiffs alleged their neighbor's chicken houses
constituted a nuisance and sought abatement. The Chancellor determined the
operation was not a nuisance. On appeal, we affirm.
Joan Kreth vs. Timothy Kreth -
W2001-00983-COA-R3-10-CV View
Shelby County - This case is before the Court on
application for extraordinary appeal pursuant to Tenn. R. App. P. 10. The
applicant-father filed a petition to modify the final decree of divorce
concerning his child support obligation, because the minor child was currently
living with him. Mother filed an answer stating that the child should not be
living with father and that father was violating the provisions of the
permanent parenting plan entered at the time of the divorce. Subsequently,
Mother filed, among other things, a "Motion for Psychological Evaluation of the
Parties and Their Child." The trial court granted the motion and ordered such
psychological evaluations as requested. Father has filed an application for a
Rule 10 appeal. We grant the application and reverse the order of the trial
court and remand the case for further proceedings.
Irene Neighborhood Assoc. vs. Quality Life -
W2001-00474-COA-R3-CV View
Shelby County - This is a challenge by a neighborhood
association to the municipal approval of a proposed development. Both the
county commission and the city council approved the challenged development. The
neighborhood association filed a petition for a writ of certiorari and for
injunctive relief against the county commission, arguing that the
reconsideration of its original rejection of the development was invalid, and
against the city council, arguing that the association did not receive proper
notice of the council's vote on the development. The trial court granted
summary judgment in favor of the defendants. We affirm, finding that the county
commission could, within reasonable time limits, reconsider its original vote,
and that the city council substantially complied with the applicable notice
requirements.
Cases posted the week of 05/20/2002
Pauline Cato v. Montgomery County Bd of
Commissioners - M2001-01846-COA-R3-CV View
This appeal arises from a
property owner's efforts to rezone a 94-acre tract of property in the Sango
community of Montgomery County from an agricultural to a residential
classification. Despite the planning commission's approval of the proposal, the
Montgomery County Commission declined to change the property's zoning
classification. The property owner thereafter filed a petition for common-law
writ of certiorari in the Chancery Court for Montgomery County asserting that
the county commission had succumbed to community pressure and lacked any other
appropriate basis for declining to rezone the property. The trial court,
sitting without a jury, upheld the county commission's decision after
concluding that it was fairly debatable whether the proposed development was
compatible with the surrounding community. The property owner has appealed. We
have determined that the courts have no basis to second-guess the county
commission's decision and, therefore, we affirm the judgment.
Sharon Outten v. Russell Campbell -
M2001-00490-COA-R3-CV (Replaces opinion filed 05/10/2002)
View
Sumner
County - A Tennessee woman filed a petition in a Tennessee court to
establish paternity, naming a Georgia resident who had minimal contacts with
the State of Tennessee. The defendant failed to respond, and the court granted
the petitioner a default judgment, ordering the defendant to pay retroactive
child support of over $63,000. The defendant's employer subsequently began
withholding money from his paycheck pursuant to a wage assignment. We find that
the judgment was void ab initio because the court lacked personal jurisdiction
over the defendant. We also find that the defendant's subsequent appearance in
the Tennessee court for the purpose of objecting to jurisdiction and obtaining
a refund of the money he lost through wage assignment cannot revive the void
judgment.
Vulcan Materials vs. Kitsmiller
& Co. - E2001-02044-COA-R3-CV View
Hamilton County -
Vulcan Materials Company ("Vulcan") brought this action seeking to enforce a
materialman's lien against a piece of property at 1300 Market Street,
Chattanooga ("the subject property"). Vulcan's complaint originally named as
defendants, Seaboard Farms of Chattanooga ("Seaboard") – the owner of the
subject property when Vulcan first delivered materials to a construction site
on the property – and another entity that the plaintiff simply identified
as "Conagra." It is alleged in the complaint that "Conagra" owned the subject
property at the time the lawsuit was filed. The trial court allowed Vulcan to
amend its complaint to identify "Conagra" by its correct name, i.e., ConAgra
Poultry Company ("ConAgra Poultry"), and held that the amended complaint
related back to the date of filing of the original complaint. Presented with
cross motions for summary judgment, the trial court initially ruled that Vulcan
violated the statutory scheme pertaining to real property liens because it
failed to mail a notice of lien to ConAgra Poultry. Upon Vulcan's motion to
alter or amend the judgment, the trial court reversed itself, ruling that
Vulcan had perfected its lien as to ConAgra Poultry by filing a notice of lien
in the Register of Deeds' office within 90 days of the date of the last
delivery of materials. The trial court then granted Vulcan summary judgment.
Seaboard and ConAgra Poultry appeal. We affirm.
In Re: Adoption of A.B.K. - E2001-02199-COA-R3-CV
View
Hawkins County
- Presented with competing petitions for adoption, the trial court terminated
the parental rights of W.T.D., Jr. ("the biological father") to his natural
daughter, A.B.K. ("the subject child"). The trial court based termination on
the failure of the biological father to visit the subject child; it made the
order of termination a final judgment pursuant to the provisions of Tenn. R.
Civ. P. 54.02. The biological father appeals, contending, among other things,
that the trial court erred in terminating his parental rights. The trial court
has reserved a ruling on the competing petitions to adopt pending a resolution
of this appeal. Under the unique circumstances of this multiple-petition case,
we find that the trial court should resolve all matters, including the issue of
adoption, before this case is ripe for appeal. Accordingly, we vacate the trial
court's Rule 54.02 designation and remand for further proceedings.
In Re: Estate of Clara Cook -
E2001-02062-COA-R3-CV View
Campbell County - After the death of Ms. Clara Massey Ely
Cook ("Ms. Cook"), a last will and testament was admitted to probate.
Subsequently, a Petition for Probate of Holographic Will was filed by Ruthelma
Hill ("Petitioner"), one of Ms. Cook's daughters. Petitioner apparently located
what she claimed to be a holographic will and sought to have certain property
distributed in accordance with the terms of this document. Respondents are the
remaining surviving children and a grandson of Ms. Cook, and they collectively
opposed the petition. The only issue before the Trial Court was whether the
handwritten document which Petitioner sought to have probated contained the
necessary testamentary intent to be considered Ms. Cook's last will and
testament. The Trial Court held it did not. We affirm.
Cory Staples vs. William Clifton -
E2001-01385-COA-R3-CV View
Hamilton County - Trial Court entered Judgment for
plaintiff on malicious prosecution claim. On appeal, plaintiff seeks an
additur. Defendant also appeals, arguing there is no evidence to establish the
cause of action and damages were not established. We affirm.
T.H. Engineering & Mfg. & Ron Tourte vs. Chris
Mussard - E2001-02406-COA-R3-CV View
Knox County -
Plaintiff sued on promissory note. Defendant counterclaimed on grounds of
breach of contract, violation of Tennessee Consumer Protection Act, and fraud.
The Trial Court entered Judgment for plaintiff and defendant has appealed. We
affirm.
Robert LeeGrand v. Trinity
Universal Insurance - W2000-02664-SC-WCM-CV View
Madison
County - The appellant presents the following issues for review: (1)
Whether the trial court erred in ruling that the plaintiff did not sustain an
injury that arose out of his employment; (2) whether the trial court erred in
ruling that the plaintiff received no permanent disability from his injuries;
(3) whether the trial court erred in failing to make a specific finding as to
the benefit rate, and (4) whether the trial court erred in failing to award
plaintiff discretionary costs. Although we hold that the plaintiff's injury
arose out of the plaintiff's employment, we affirm the trial court's conclusion
that the plaintiff received no permanent disability from his injury.
Dept of Children's Services vs. C.H.H. In Re: A.N.R.
- E2001-02107-COA-R3-CV View
Knox County - The State of Tennessee, Department of
Children's Services ("DCS") filed a petition seeking to terminate the parental
rights of C.H.H. ("Father"), the biological father of the minor child, A.N.R.
("Child"). The Trial Court granted DCS' petition to terminate Father's parental
rights. Father appeals. We affirm as modified and remand.
Roy Ferguson vs. State - E2001-02158-COA-R3-CV
View
Roy R. Ferguson
("Plaintiff") filed suit in the Claims Commission against the State of
Tennessee ("Defendant") after he was denied tenure at Roane State Community
College ("Roane State"). Plaintiff claimed Defendant, by and through its
agents, failed to follow its policies and procedures, thereby violating the
implied covenant of good faith and fair dealing in his employment contract.
Defendant filed a motion to dismiss alleging, inter alia, the covenant of good
faith and fair dealing could not form the basis of a breach of contract claim
against the State because it was not in writing. Defendant also argued the
Claims Commission ("Commission") lacked subject matter jurisdiction over the
claim. The Commission concluded it did not have jurisdiction over Plaintiff's
claim because the implied covenant of good faith and fair dealing was not
written. The Commission further concluded Plaintiff's claim should have been
brought pursuant to the provisions of the Uniform Administrative Procedures Act
and not in the Claims Commission, and dismissed the complaint for lack of
subject matter jurisdiction. We affirm, as modified.
Orlando Residence, Ltd. v. Nashville Lodging -
M2001-00648-COA-R3-CV View
Davidson County - This is an action for damages for the
fraudulent conveyance of a Nashville hotel to defeat the rights of a creditor
of the original owner. After a trial and two prior appeals, the Chancery Court
of Davidson County tried the case on the merits again in August of 2000. The
jury returned a verdict in favor of the plaintiffs for $797,615. The defendants
assert on appeal that the statute of limitations barred the claim, that the
trial court erred in miscalculating the defendants' claim for restitution, and
that there is no evidence in the record to support a finding that the transfer
was fraudulent. We reverse the lower court's ruling that as a matter of law the
statute of limitations had not run. In all other respects we affirm the lower
court's judgment.
James Gunter v. Tim
Emerton - M2001-00364-COA-R3-CV View
Overton
County - In this action against a police officer for invasion of
privacy by placing the plaintiff in false light the trial court granted summary
judgment to the defendant. On appeal, the plaintiff claims that the trial judge
erred by granting summary judgment on a defense not raised by the defendant. We
affirm.
Jo Anne Silverman v. KRSNA -
M2001-01921-COA-R9-CV View
Davidson County - A woman who was severely scalded by the
water in a motel bathtub sued the motel owner under several theories. She filed
a motion for partial summary judgment on her theory of negligence per se,
arguing that the defendant had not complied with provisions of the 1994
plumbing code designed to prevent such injuries. The defendant responded that
it did not have to comply with the 1994 code, because the plumbing system and
hot water heaters in the motel were installed before 1994, and were in
compliance with the codes in existence at the time of their installation. The
trial court denied the summary judgment motion. The court also ruled that while
the defendant was not required to comply with a provision of the 1994 code that
mandated the installation of certain safety devices in hot water systems, it
was required to comply with a provision that established a maximum water
temperature setting of 120 degrees Fahrenheit. Because of the potential impact
of its ruling on the ultimate outcome of this case, the court granted the
parties permission to apply to this court for interlocutory appeal, which we
granted. We affirm the denial of summary judgment, but reverse the trial
court's ruling that makes part of the 1994 code retroactive.
Anne Pope v. Leuty & Heath -
M2001-00736-COA-R3-CV View
Davidson County - The receivers of a group of insolvent
life insurance companies brought a malpractice action against an accounting
firm that had performed allegedly negligent audits of the companies. The
accounting firm denied any negligence, and filed a third party complaint
against its professional liability insurer, requesting payment of benefits
under an expired policy. The trial court dismissed the third-party complaint,
ruling that the insurance policy was a claims-made policy and that the insurer
was no longer obligated to its former insured. The court certified its order as
final for purposes of appeal. We have concluded that the trial court was
correct, and we affirm its order.
Cases posted the week of 05/13/2002
State/Mae Clark vs. Charles Clark -
W2001-01896-COA-R3-CV View
Haywood County - This appeal involves an obligor parent's
failure to comply with court ordered child support obligations. The State of
Tennessee, on behalf of a custodial parent, sought to reduce arrearage in the
obligations to judgment. The State was successful and the custodial parent was
awarded $14,000.00 in arrearage. The obligor parent appealed and, for the
following reasons, we affirm the lower court's decision.
Marlena Tilley vs. Gurpal Bindra -
W2001-01157-COA-R3-CV View
Dyer County - This appeal arises from a medical
malpractice claim brought by the Appellants against the Appellee in the Circuit
Court of Dyer County. The Appellee filed a motion for summary judgment.
Following the deposition of the Appellants' expert witness, the Appellee filed
a renewed motion for summary judgment. The trial court granted the Appellee's
motion for summary judgment and renewed motion for summary judgment. The
Appellants appeal the grant of the Appellee's motion for summary judgment and
renewed motion for summary judgment by the Circuit Court of Dyer County. For
the reasons stated herein, we affirm the trial court's decision.
Elaine Wynn vs. Joseph Hames -
W2001-00269-COA-R3-CV View
Benton County - This a medical malpractice case.
Plaintiff's decedent saw Defendant, an emergency room physician, who diagnosed
decedent with pneumonia and sent decedent home with antibiotics. Plaintiff's
decedent died the next day from congestive heart failure. Plaintiff, wife of
decedent, sued Defendant for malpractice. The jury's verdict found decedent 90%
at fault and Defendant 10% at fault, and the trial court entered judgment for
Defendant on the jury verdict. Plaintiff appeals. We affirm.
Judith Steele vs. Columbia Health Care -
W2001-01692-COA-R3-CV View
Weakley County - This is a medical malpractice case.
Plaintiff's husband, Mr. Steele, arrived at Defendant's emergency room
complaining of chest pains. An EKG illustrated that he was suffering a heart
attack. Mr. Steele underwent subsequent treatments and an additional EKG. The
second EKG was abnormal, and Dr. Urankar, a physician at Defendant's emergency
room decided to administer tPA, a "clot busting" drug. While Dr. Urankar was
preparing to administer the tPA, Mr. Steele's condition significantly worsened,
and he eventually died. At trial, Plaintiff introduced expert testimony from
Dr. Carr regarding the applicable standard of care and causation. Defendant
objected to portions of Dr. Carr's testimony. The jury awarded Plaintiff
damages, and Defendant appeals, citing error in Dr. Carr's testimony. We affirm
the decision of the trial court.
Dennis
Osagie v. Peakload Temporary Services - M2001-00852-COA-R3-CV
View
Davidson
County - An employee of a temporary services agency sued the agency
for non-payment of wages and for discrimination. The trial court dismissed the
claim for non-payment with prejudice, and the claim for discrimination without
prejudice. We affirm the trial court.
In
the Matter Of: J.E.F. and M.A.F. - M2001-00071-COA-R3-JV
View
Dickson
County - The trial court terminated the parental rights of the mother
of two teenagers, on the grounds of failure to follow a permanency plan and
failure to remedy the conditions that led to the children's removal from her
custody. We affirm.
Marilyn Yount v. Bruce
Yount - M2001-01335-COA-R3-CV View
Montgomery
County - The trial court granted a divorce to the wife, and awarded
her alimony in futuro of $2,000 per month. The husband argues on appeal that
the wife does not need any alimony, and that he himself does not have the
ability to pay the alimony. The proof shows that he does indeed have the
ability to pay, but that the wife's needs are more appropriately served by an
award of rehabilitative alimony. We modify the alimony award accordingly.
Southwest Williamson County Community
Assoc. v. J. Bruce Saltsman - M2001-00654-COA-R3-CV
View
Davidson
County - A group of Williamson County residents whose property was
threatened by highway construction filed a Petition for a Declaratory Order
against the Tennessee Department of Transportation. They argued that the
Department violated the statute that authorized the project by not complying
with the environmental standards for construction of an interstate highway. The
Administrative Law Judge denied the petition, and the trial court affirmed the
ALJ. We affirm the trial court.
Klosterman Development v. Outlaw Aircraft Sales -
M2001-02586-COA-R3-CV View
Montgomery County - This case involves a contract for the
sale of an aircraft. By amended complaint, plaintiff-purchaser sued seller and
seller's agent for rescission of the contract and defendant-seller, by
counter-claim, sought the amount due for repairs made on the aircraft pursuant
to the contract. The trial court ordered the contract rescinded but failed to
make provisions to put the parties in status quo. The purchaser, seller's
agent, and seller appeal. We reverse the judgment of the trial court as it
pertains to seller's agent, modify the judgment for rescission to include
provisions of restoring the status quo of the parties. The judgment is affirmed
as modified.
Caroline Smith v. Mark
Smith - M2001-00689-COA-R3-CV View
Sumner County - This
is an appeal by appellant Caroline Elizabeth Smith from an order of the trial
court which provided that the custody of the minor children of Caroline
Elizabeth Smith and Mark O. Smith shall remain in the custody of Mark O. Smith.
We affirm the trial court.
Jimmy Campbell
v. Dept. of Correction - M2001-00507-COA-R3-CV (Rehear Petition)
View
Eddie Fritz vs. Wanda Fritz -
E2001-00145-COA-R3-CV View
Sullivan County - Eddie LaMartin Fritz ("Husband") filed
for divorce alleging inappropriate marital conduct or, in the alternative,
irreconcilable differences. Wanda Lorraine Williams Fritz ("Wife")
counter-claimed seeking a divorce on the same grounds. The parties eventually
agreed how to divide most of their personal property and stipulated to grounds
for the divorce. Wife had opened two savings accounts into which she claims she
placed funds for the college education of her two daughters from a previous
marriage. The Trial Court concluded the funds in these accounts were not
marital property, and Husband challenges this conclusion on appeal. Husband
also challenges the Trial Court's holding that he be responsible for all of the
credit card debt accumulated during the marriage. We modify the division of
property, and affirm the judgment as modified.
Robert Davidson vs. Charles Lindsey -
W2000-02891-COA-R3-CV View
Henry County - This appeal arises from an automobile
accident involving the Appellants and the Appellees in which the Appellee's
wife was killed and the Appellee was seriously injured. The Appellee,
individually and as administrator of the estate of his wife, and the Appellee's
children filed a complaint in the Circuit Court of Henry County against the
Appellants and three of the Appellees. Following a jury trial, the jury found
that the Appellants were 100% liable for the accident and dismissed the claims
against the three Appellees. The jury awarded the Appellee $1,250,000.00 and
awarded the estate of the Appellee's wife $500,000.00. The trial court entered
a judgment on the jury's verdict. The Appellants filed a motion for a new
trial. The trial court denied the motion for a new trial.
James Ray vs. Billy Williams -
W2000-03000-COA-R3-CV View
Lauderdale County - This case involves the doctrine of
promissory fraud. The plaintiff service station owner claimed that the
defendant rental trailer company fraudulently induced him into entering into a
contract to operate a rental trailer dealership by orally assuring him that his
dealership rights would be exclusive in Ripley, Tennessee. At the bench trial
below, the trial court admitted parol evidence of the oral assurances to show
fraud in the inducement of the dealership contract. Based on that evidence, the
trial court held that the rental trailer company had committed promissory fraud
and awarded damages to the plaintiff service station owner. The rental trailer
company now appeals. We affirm the finding of promissory fraud, but reverse in
part the damage award.
Cases posted the week of 05/06/2002
Dept. of Children's Svcs. v. T.S.W. -
M2001-01735-COA-R3-CV View
Coffee County - J. A. J. is the father of T. L. J., date
of birth 7-25-92; C. S. J., date of birth 7-1-93; and S. S. J., date of birth
7-21-94. A petition to terminate his parental relationship was filed on May 13,
1996. The mother of the children surrendered her parental rights in 1997. She
is not involved in this litigation. The case was heard on January 11, 2001 and
resulted in a judgment terminating the relationship. J. A. J. appeals,
insisting that the grounds for termination were not proved by clear and
convincing evidence. We affirm.
Aimee Cathey
v. City of Dickson - M2001-02425-COA-R3-CV View
This appeal emanates from
dismissal of Plaintiff's claims pursuant to Tenn. Code Ann. § 6-58-101, et
seq. and Tenn. Code Ann. § 8-44-101, et seq. The trial court dismissed the
case as moot after the annexation ordinance at dispute was repealed by the
defendant City of Dickson. Plaintiff filed her notice of appeal, and the court
below subsequently granted the City's Tenn. R. Civ. P. 60 motion to allow the
City to amend its answer to include an affirmative defense to Plaintiff's
constitutional claims. The case was again dismissed. We affirm dismissal, but
vacate the order granting the City's Rule 60 motion.
Alberta Dodson v. James Dodson -
M2000-01682-COA-R3-CV View
Davidson County - The trial court awarded a divorce to the
parties, and ordered the husband to pay $1,000 per month as alimony in futuro.
In light of the needs of the wife, and of the husband's ability to pay, we
increase the alimony award to $1,500 per month.
In Re: Estate of Harold Jenkins -
M2001-01969-COA-R3-CV View
Sumner County - This appeal involves the narrow issue of
the applicability of the "changing fraction" method of calculation of estate
income as provided for in T.C.A. § 35-6-202 (b)(1), a part of the revised
Tennessee Uniform Principal and Income Act (TUPIA). The revised Act was enacted
after the estate was opened but before it was closed. On the surviving spouse's
motion to apply the "changing fraction" method to the calculation, the chancery
court ruled that that method did not apply to this estate but that the "fixed
fraction" method did apply. The order was made final pursuant to Tenn.R.Civ.P.
54.02 and the surviving spouse appeals. We reverse in part and affirm in part.
Linda Kinard v. John Kinard -
M2000-00674-COA-R3-CV View
Rutherford County - Upon remand from earlier appeal, the
trial court determined (1) Husband owed Wife past due alimony without interest;
(2) Husband owed Wife additional $47,933.50 on note with interest from 30 days
after the entry of the Court of Appeals opinion until the amount is paid; (3)
Husband was not required to release the residence as collateral on the home
equity loan; (4) Husband retained ownership of the insurance policy; (5) no
attorney's fees were awarded to either party. Wife filed a second appeal to
dispute the decision of the trial court and to determine the date at which
post-judgment interest begins to accrue, whether husband should be required to
discharge the home equity loan, whether husband should be restricted in use of
life insurance policy, and whether attorney's fees should have been awarded.
For the following reasons, we affirm the decision of the trial court in regards
to the attorney's fees, life insurance policy, and home equity loan and reverse
the decision of the trial court with respect to post-judgment interest.
Ronald Meredith vs. James Stair -
E2001-02852-COA-R3-CV View
Anderson County - In this suit seeking damages for breach
of contract, Ronald C. Meredith, Jr., and Clinton Broadcasters, Inc., were
granted a judgment against James F. Stair in the amount of $84,326. Mr. Stair
appeals. His single issue insists that the Trial Court was in error in finding
a breach of contract. We disagree and affirm.
Donna Bunker vs. Roger Finks -
E2001-01496-COA-R3-CV View
Hamilton County - Donna J. (Finks) Bunker ("Mother") and
Roger Finks ("Father") were divorced in Ohio in 1993. The parties had two minor
children. Mother and the children relocated to Chattanooga, Tennessee, and
Father stayed in Ohio. The Ohio Divorce Decree was brought properly before the
Tennessee Trial Court. Father filed a petition seeking a change of custody and
visitation, while Mother filed a cross-petition seeking an increase in child
support. The Trial Court found that while Father proved a material change in
circumstances, he failed to carry his burden of showing that a change of
custody was warranted. The Trial Court also restricted Father's visitation with
the children to take place only in Chattanooga. The Trial Court did not
increase Father's child support obligation. Both Father and Mother raise issues
on appeal. Father's issues on appeal concern custody and visitation, primarily
of the parties' younger child ("Younger Child"). We affirm, as modified, and
remand.
Pelilia San Juan-Torregosa, et al
vs. Engracia Torregosa Garcia, et al. - E2001-02906-COA-R3-CV
View
Patient in "chronic
vegetative state" is on life support, i.e., nutrition by "percutaneous
endoscopic gastrostomy". The trial court found by clear and convincing evidence
that patient would not want to be subjected to artificial nutrition. However,
the court ruled since she had not executed a living will, the court had no
authority to authorize discontinuance of the artificial nutrition. On appeal,
we reverse.
Bobby Ray Sears v.
Metropolitan Nashville Airport Authority - M2001-00850-COA-R3-CV
View
Davidson
County - This is a negligence case under the Governmental Tort
Liability Act where plaintiff was awarded money damages against defendant.
Subsequent to trial, the defendant filed a motion seeking credit pursuant to
T.C.A. § 29-11-105 (a)(1) for the amount paid to plaintiff by a settling
co-defendant. The trial court denied the motion, and defendant appeals. We
affirm.
Philip Workman v. Donal
Campbell, et al. - M2001-01445-COA-R3-CV
View
Davidson
County - This case involves the extent to which the State of Tennessee
may regulate a condemned prisoner's right to be attended by his personal
minister in the hours leading up to his execution. Prisoner sued the
Commissioner of the Tennessee Department of Corrections and the prison warden
based upon the warden's denial of prisoner's request that his personal
religious advisor be physically present at all times leading up to his
execution. The chancery court ordered the issuance of a writ of mandamus
requiring the prison warden to allow the prisoner's minister to attend the
prisoner at all times until the prisoner enters the death chamber. We reverse
and remand.
Faye R. Taylor v. Andrew R.
Dyer, et al. - M2001-00967-COA-R3-CV View
Davidson County
- In a non-jury trial, the Circuit Court of Davidson County awarded $10,920 to
a plaintiff injured in a rear-end collision. The defendants assert on appeal
that the court erred in allowing the plaintiff to supplement her trial proof
with her doctor's statement that his charges were reasonable and necessary. In
addition, the defendants assert that most of the medical expenses included in
the plaintiff's award were not caused by the accident. We affirm the judgment
of the trial court.
William T. Tarpley v.
Ron Searcy, et al. - M2000-03094-COA-R3-CV
View
The Circuit Court of
Davidson County affirmed an arbitrator's award despite the opponent's
claim of the arbitrator's bias and of erroneous calculations. We
affirm.
James Randall Slaughter, et al.
v. Duck River Electric Membership Corporation, et al. -
M2000-00453-COA-R3-CV View
Maury County - This is an appeal from an order of the
trial court granting a motion for summary judgment in favor of the defendant,
Duck River Electric Membership Corporation and the third-party defendant,
Osborne Electrical Contractors, Inc., on the ground that Duck River Electric
Membership Corporation was a statutory employer for the purposes of the
Tennessee Workers' Compensation Act at the time the plaintiff, James Randall
Slaughter, received a severe electrical shock resulting in massive injuries.
For the reasons herein stated, we affirm the judgment of the trial court and
remand.
State v. Stephen Bart Wood -
M2001-00872-COA-R3-CD View
The
General Sessions Court of Davidson County found the defendant guilty of
thirty-six violations of an order of protection and ordered him to serve ten
days for each violation. Each sentence was to be served consecutively and
day-for-day. The defendant appealed to the Criminal Court and that court
affirmed. We find that the Criminal Court lacked subject matter jurisdiction to
hear the appeal, that the sentence should be vacated, and the cause remanded to
the General Sessions Court for a review of the sentence for excessiveness in
accordance with the guidelines we adopt in this opinion.
Randy Arnwine vs. Union County Board of Education,
et al. - E200-1-02719-COA-R3-CV View
Union County -
Randy Arnwine, an employee of the defendant Union County Board of Education
("the Board"), brought this declaratory judgment action against the Board and
David F. Coppock, Director of Schools for Union County. Arnwine sought a
declaration that his employment contract as "Assistant Superintendent" of the
school system was valid and enforceable, and that the Board had violated that
contract when it "demoted" him to a different position within the school system
and reduced his salary beginning with the 2001-02 school year. The trial court
held that the parties' four-year contract was valid and that Arnwine was
entitled to receive his contractually-stipulated salary, plus any system-wide
annual increases, for the four-year term of the contract. We find that the
Board was without authority to enter into multi-year teacher employment
contracts. Accordingly, we reverse the judgment of the trial court.
C.DC., et al. vs. C.E.D. - E2001-0286-COA-R3-CV
View
Hamblen County -
This is an adoption case in which the petitioners seek to terminate parental
rights. N.M.C. ("Mother"), the biological mother and custodian of the two
affected children, joined her husband, C.D.C. ("Stepfather"), in petitioning
the trial court to terminate the parental rights of C.E.D. ("Father") –
the children's biological father – as an adjunct to Stepfather's request
to adopt the children. The trial court refused to terminate Father's parental
rights, finding that the petitioners had failed to prove the asserted grounds
for termination by clear and convincing evidence. Mother and Stepfather appeal,
arguing that the evidence preponderates against the trial court's findings. We
disagree. Accordingly, we affirm the trial court's judgment.
Betty Berryhill vs. Charles Rhodes -
W2001-00748-COA-R3-JV View
Shelby County - This is a child support case with
significant appellate history. Pursuant to the Tennessee Supreme Court's
opinion in Berryhill v. Rhodes, 21 S.W.3d 188, 188-89 (Tenn. 2000), this
case was before the trial court in order to determine Dr. Rhode's retroactive
child support obligations. The court applied the Child Support Guidelines from
1989 until the date the child reached majority, in September 1995. The court
deviated from the guidelines in assessing Dr. Rhodes's child support obligation
from 1977 to 1989. The court calculated the total arrearage as $180,202.00. In
assessing interest on the judgment, the court determined that interest should
accrue from August 21, 1996, the date of the trial court's original judgment in
this matter. Both parties take issue with the trial court's decision. We
reverse in part, affirm in part, and remand for proceedings consistent with
this opinion.
Angela Phillips vs.
William Phillips - W2001-01685-COA-R3-CV
View
Hardin
County - This appeal arises from a divorce proceeding wherein the
parties had two minor children. While the divorce was pending, the trial court
issued a temporary order outlining the custodial rights of the parties with
respect to their children. The final decree of divorce adopted a permanent
parenting plan and distributed the marital property and debts. The husband
filed this appeal contesting the permanent parenting plan and the manner in
which the marital debts were apportioned. For the following reasons, we affirm
the decision of the trial court
Bob
Patterson vs. Jim Rout - W2001-01769-COA-R3-CV
View
Shelby
County - This appeal concerns the application of the Shelby County
Civil Service Merit Act to appointed employment positions in Shelby County. The
trial court found that since the positions were appointed by the County
Trustee, they were exempt from the Act. The chancellor accordingly held that
the Human Resources Department does not have the authority to override salary
decisions of the Trustee with respect to appointed positions, and that
petitions for salary increases could be made to the court pursuant to Tenn.
Code Ann. § 8-20-101, et. seq. The chancellor approved three of the
Trustee's five requested increases, finding them reasonable and necessary. We
hold that the trial court's interpretation of the Merit Act was only partially
correct. We remand this case for further proceedings consistent with this
opinion for a determination of whether the appointed employees are classified
or unclassified.
James Mims vs. Pamela
Mims - W2001-01688-COA-R3-CV View
Hardin County - This appeal arises from a trial
court's refusal to modify a custody agreement or increase child support
obligations. A divorced father of three children petitioned the court to hold
the mother in contempt and change the custody agreement embodied in a marital
dissolution agreement from joint custody to primary or sole custody of the
children by him. The mother counterpetitioned seeking to have the father held
in contempt and to have child support increased. The trial court found that no
material change in circumstances warranting a change in custody existed and
refused to increase the father's child support obligations for lack of proof.
For the following reasons, we affirm
Hannah Robinson vs. Charles Brewer -
W2001-01745-COA-R3-CV View
Madison County - This is an automobile collision
personal injury case. Plaintiff-motorist was stopped in a thru-traffic lane
over the crest of a hill behind a vehicle attempting to make a left turn off of
the highway. The defendant-motorist came over the crest of the hill and struck
the plaintiff-motorist in the rear, causing injuries to the plaintiff. Judgment
was entered on a jury verdict for the defendant that the defendant was not at
fault in the accident. Plaintiff appeals. We affirm.
Cases posted the week of 04/29/2002
Deborah R. Smith and Alan Smith vs. Taco Bell
Corporation - E2001-01796-COA-R3-CV View
Knox County - The
trial court awarded Deborah Smith ("Plaintiff") $250,000 for injuries received
as a result of her fall at Taco Bell. Plaintiff's husband was awarded $10,000
for his loss of consortium claim. On appeal, Taco Bell Corporation
("Defendant") contends the trial court committed reversible error by failing to
rule at trial on Defendant's objections made during the depositions of the two
primary treating physicians. Defendant also claims the medical proof was
insufficient to establish a causal connection between Plaintiff's fall at Taco
Bell and her medical condition. We affirm.
Doug Jones vs. Eddie Gillette, Sr., et al -
E2001-01499-COA-R3-CV View
Hamilton County - The defendants/appellants, Eddie
Gillette, Sr., and Vivian Gillette, the maternal grandparents of A.B.J.,
contend that the trial court abused its discretion when it granted custody of
A.B.J. to her father, the plaintiff/appellee, Doug Jones. The Gillettes further
contend that the trial court abused its discretion when it denied their oral
motion to stay enforcement of its judgment pending appeal and when it denied
their oral motion to award them visitation pending appeal. We affirm the
judgment of the trial court.
Jerry L.
Luster v. B. Campbell Smoot - M2000-02191-COA-R3-CV
View
Coffee County
- A prisoner filed a civil rights intimidation suit against a public defender
who uttered a racial slur during a recess in the plaintiff's criminal trial.
The trial court granted summary judgment to the public defender. We
affirm.
George B. Alder, Jr. v. Billy Jack
Bible, et al. - M2001-00696-COA-R3-CV View
Marion County -
The plaintiff sued adjoining landowners asking the court to establish the
boundary line between the two properties. The Chancery Court of Marion County
held that the line originally ran where the plaintiff claimed but that the
plaintiff's claim was barred by laches and adverse possession. We
affirm.
Antonio Sweatt v. Tennessee
Department of Correction - M2000-02983-COA-R3-CV
View
Davidson
County - An inmate sued the Department of Correction and three of its
officials in forma pauperis, claiming that the defendants conspired to violate
his constitutional rights by housing him in conditions where he was exposed to
second-hand smoke. The trial court dismissed his complaint as barred by the
doctrine of res judicata, declared it be frivolous, and enjoined him from
filing any more claims because he failed to pay the court costs as required
under the provisions of Tenn. Code. Ann. § 41-21-801, et seq. We
affirm.
Lidell Russell vs.
City of Memphis - W2001-01307-COA-R3-CV
View
Shelby County - This is an appeal from a wrongful
death action brought against the City of Memphis pursuant to the Governmental
Tort Liability Act. The trial court granted summary judgment to the City of
Memphis, finding that at the time of the accident giving rise to this action
its employee was not acting within the scope of his employment. We
affirm.
Ella McCain, Conservator
- W2000-02218-COA-R3-CV View
Fayette County - This is a personal injury case
arising from a vehicle/pedestrian accident. A pedestrian wandered from the
nursing home at which he resided and began walking alongside a roadway. The
defendant driver saw the pedestrian as he was driving on the roadway. As the
driver approached, the pedestrian suddenly stepped into the roadway and was
struck by the defendant's truck. The pedestrian suffered significant injuries.
The pedestrian's daughter, as his conservator, filed suit against the defendant
driver. At the conclusion of the plaintiff's proof, the defendant driver moved
for a directed verdict on the grounds that there was insufficient evidence that
the defendant driver was negligent. The trial court granted a directed verdict
for the defendant driver and the plaintiff now appeals. We affirm, finding that
the plaintiff failed to adduce evidence from which a reasonable jury might
conclude that the defendant driver was negligent.
Nancy E. Cotter v. Ted A.
Burkhalter, et al. - M2000-03183-COA-R3-CV
View
Davidson County - This appeal arises from an action
by a Trustee against: (1) Ted A. Burkhalter (Burkhalter), an
accountant/attorney, and the accounting firm, Burkhalter, Rya