The following Opinions are available for download:
Cases posted the week of 06/27/2005
Jennifer Alsip, et. al. v. Johnson City Medical
Center, et al. - E2004-00831-COA-R9-CV View
Johnson County - In this
medical malpractice case involving the alleged wrongful death of Walter Ray
Alsip ("Mr. Alsip" or "the deceased"), we granted the plaintiffs' Tenn. R. App.
P. 9 application for an interlocutory appeal in order to review the trial
court's order allowing defense counsel to engage in ex parte dialogue with Mr.
Alsip's last-illness, non-defendant treating physicians. We conclude that the
trial court erred in entering the order that permitted defense counsel to have
private conversations with the non-defendant physicians who treated the
deceased during his last illness. Accordingly, we reverse the trial court's
order.
Harlan Thomas et al. v. John
Carpenter, et. al. - M2005-00993-COA-R9-CV View
Cheatham County -
This interlocutory appeal involves a plaintiff who was injured while helping
the contractor building his house cut a board. The sole issue concerns whether
the contractor is equitably estopped from asserting the statute of limitations
as a defense to the plaintiff's claims. The trial court determined that, by
paying the plaintiff $10,000 for his medical expenses, the contractor's
insurance company induced the plaintiff to believe the matter would be settled
amicably without the necessity of a lawsuit. Thus, the trial court denied the
contractor's motion for summary judgment, but granted the contractor an
interlocutory appeal pursuant to Tenn. R. App. P. 9. We concur with the trial
court that an interlocutory appeal will prevent needless, expensive and
protracted litigation. We also agree that summary judgment is not appropriate
because genuine issues of material fact exist. However, the trier of fact
should decide whether the $10,000 payment induced the plaintiff to believe that
the matter would be settled amicably, and, therefore, we vacate the trial
court's order to the extent it makes specific findings with regard to the
plaintiff's beliefs stemming from the $10,000 payment.
Linda Wagner v. Mark Firestone -
E2004-01812-COA-R3-CV View
Knox
County - In this action involving child support, the issues are
whether the trial court erred in finding that the father provided adequate
discovery information regarding his income and assets; whether the trial court
erred in ordering the mother to pay half the cost of the father's airfare to
attend his deposition in Tennessee; whether the court should have awarded the
mother more attorney's fees than it did; and whether the trial court erred in
failing to hold the father responsible for a hospital bill for medical
treatment of the parties' child. Finding no error, we affirm the judgment of
the trial court and remand.
Dept of Children's
Services v. D.W.J. - E2004-02586-COA-R3-PT View
Sullivan County - This is a
parental rights termination case. The mother appeals the trial court's decision
terminating her parental rights to two of her three children. On appeal, the
mother argues, inter alia, that the evidence preponderates against the trial
court's finding that grounds for termination exist and that termination is in
the best interest of the children. We conclude that the record does not contain
sufficient evidence to support the trial court's decision and therefore, we
reverse.
Tim Lewallen, et al. v. J. C.
York, Jr. - E2004-02042-COA-R3-CV View
Scott County - Tim
Lewallen and Marietta Lewallen ("Plaintiffs") sued J.C. York, Jr. ("Defendant")
claiming, in part, that Defendant was interfering with their lawful right to
use an easement over Defendant's land. After a trial, the Trial Court entered
an order holding, inter alia, "[t]hat an easement exists which runs with the
land and burdens the defendant's property . . . ," and that Plaintiffs "have
the use and benefit of the aforementioned easement for the purpose of ingress
and egress." Defendant appeals claiming that the Trial Court erred in holding
that Plaintiffs have an easement over Defendant's land, and also that the Trial
Court erred in considering parol evidence regarding the easement. We affirm.
Exxomobil Oil Corp. v. Metro Government of
Nashville - M2004-00388-COA-R3-CV View
Davidson County -
Exxonmobil appeals the denial of a beer permit application by the Beer Permit
Board of the Metropolitan Government of Nashville and Davidson County alleging
the proximity prohibition in the local code is contravened by Tenn. Code Ann.
§ 57-5-109. We agree and reverse the trial court's denial of Exxonmobil's
petition for writ of certiorari.
Estate
of Charles McCraw vs. Joan Likins - W2004-01172-COA-R3-CV
View
Fayette County -
This case involves codicils to a will. The decedent died testate. His will
included one typed codicil and two handwritten codicils. The typed codicil,
pursuant to a marital dissolution agreement, granted the decedent's former
spouse a life estate in his real property with the remainder to their children,
and devised all of the personal property to the children as well. The decedent
later handwrote two codicils addressing the disposition of certain personal
property and debts. After his death, the devisee under the handwritten codicils
intervened in the probate proceedings to enforce the codicils. The trial court
ruled that the handwritten codicil addressing the personal property violated
the marital dissolution agreement and was therefore invalid. It held that the
codicil addressing the debt did not violate the marital dissolution agreement
and that the estate should pay for the debt, as set forth in the codicil. Other
matters remained outstanding, and the trial court, under Tennessee Rules of
Civil Procedure 54.02, made the order final. Because the outstanding matters
could render this Court's ruling moot, we find that the order was improvidently
made final and dismiss the appeal.
Genuine Auto Parts vs. Convenient Car Care -
W2004-00615-COA-R3-CV View
Shelby County - This
is a collection action. The defendant corporation owned an automotive repair
shop. In order to obtain a line of credit to purchase automobile parts from the
plaintiff auto parts supply company, the sole shareholder of the defendant
corporation signed a personal guaranty. After the corporation had incurred
about $20,000 on its line of credit, the plaintiff supply company filed this
lawsuit against the corporation and the individual shareholder to recover that
debt. The shareholder argued that, before the debt was incurred, he sold the
business to a third party and canceled his personal guaranty on the debt of the
corporation. The trial court rejected that argument and entered a judgment in
favor of the plaintiff against both the corporation and the shareholder. The
shareholder now appeals. We affirm, concluding that holding the shareholder
liable for the debt of the corporation is appropriate under these
circumstances, regardless of whether his personal guaranty remained intact.
David Leslie Mitchell v. Cathy Renae
Mitchell - M2004-00849-COA-R3-CV View
Putnam County -
Cathy Mitchell, mother and primary residential parent for the parties'
nine-year-old child, seeks to relocate with the child to California. Her stated
reasons are to live with her new husband and to be near his family, to seek a
better job and better education for herself and her child. The father, David
Mitchell, opposes the move. The mother spends substantially more time with the
child and thus Tenn. Code Ann. § 36-6-108(d) applies. The trial court held
there was no reasonable purpose for moving to California, such a move would
pose a threat of specific and serious harm to the child, and the move was not
in the child's best interest. Therefore, it denied the requested relocation.
Mother appealed. Finding no error, we affirm.
In Re Estate of Levesta Measles -
M2004-00244-COA-R3-CV View
Warren County -
This is a claim against an estate for personal services rendered to the
decedent. The decedent's stepson and his wife provided personal services to the
decedent for several years prior to her death. The decedent died intestate,
leaving no issue. The decedent's nephew was appointed as administrator of the
decedent's estate. The stepson and his wife filed claims against the estate on
the theory of implied or quasi contract, seeking reimbursement for the expenses
incurred in providing the personal services for the decedent. The decedent's
estate filed an exception to those claims. After a hearing, the trial court
granted a portion of the stepson's and his wife's claims for personal services,
finding that an implied contract existed with the decedent as to those items.
The estate now appeals. We reverse, finding that the evidence preponderates
against the trial court's finding of an implied contract between the decedent
and the claimants that the claimants would be paid for their services at the
time the services were rendered.
Steven B.
Soest v. Jill M. (Mason) Soest - E2004-00957-COA-R3-CV
View
Roane County -This
appeal involves the equitable division of the parties’ marital assets,
including the Tier II railroad retirement benefits of Steven B. Soest
(“Husband”). When Jill M. (Mason) Soest (“Wife”) and
Husband were divorced, the Trial Court stated its intent to divide
Husband’s “retirement benefits” as equally as possible. Under
federal law, Husband’s Tier I retirement benefits are not subject to
division in divorce proceedings, but Tier II benefits have no such restriction.
The Trial Court entered an Order awarding Wife 100 % of Husband’s Tier II
benefits, and Husband appeals. We vacate the judgment of the Trial Court and
remand for further proceedings.
Ben Poe v.
James G. Neeley, Et Al. - E2004-02332-COA-R3-CV View
Jefferson County -The
Tennessee Department of Labor and Workforce Development (“the
Department”) denied the unemployment compensation claim of Ben Poe
(“the plaintiff”). Following a decision of the Appeals Tribunal
favorable to the plaintiff, the Board of Review (“the Board”) found
that the plaintiff engaged in work-related misconduct, thereby disqualifying
him from receiving benefits. Specifically, the Board found that the plaintiff
violated the work attendance policy of his employer, Specialty Defense Systems
(“SDS”), (1) by taking a week off for a leg injury, but failing to
turn in the paperwork that would have qualified him for leave under the Family
and Medical Leave Act (“the FMLA”); and (2) by failing to call in
on a daily basis as required by SDS’s policy. The Board also found that
the plaintiff violated the policy by walking off the job on one occasion, and
by calling in sick without a doctor’s excuse on another. The plaintiff
filed a petition for judicial review in the trial court, which petition was
denied. Although the plaintiff did not complete the paperwork for the FMLA, we
hold that it was not his obligation to do so in the absence of written notice
from SDS per the requirements of the FMLA. Therefore, the plaintiff cannot be
penalized for a failure to comply with the FMLA. Furthermore, he cannot be
“docked” for those days that he called in sick pursuant to the
policy of his employer. Accordingly, we find that when his absences are
re-computed in light of our holding, he did not have the requisite number of
absences under SDS’s policy to justify his discharge. Therefore, the
judgment of the trial court and that of the Board are reversed, and the
decision of the Appeals Tribunal, which held that the plaintiff was eligible
for unemployment compensation benefits, is reinstated.
Brenda Myers v. Kenneth Myers, Jr. -
E2004-02135-COA-R3-CV View
Scott
County -Brenda Myers brought this action against her former husband,
Kenneth Myers, Jr., alleging that he had assaulted her on December 21, 1998.
The matter went to trial. The jury returned a verdict for the plaintiff and
awarded her compensatory damages of $500,000 – the full amount she had
sought in her complaint. The defendant filed a motion for a new trial. In
response to the motion, the trial court reduced the jury’s award to
$150,000. The defendant appeals, raising an evidentiary issue as well as two
procedural issues. In addition, the defendant contends that he should have been
granted a new trial rather than being burdened with a remitted judgment. We
hold that the trial court’s decision to suggest a 70% remittitur
effectively destroyed the verdict of the jury. Accordingly, we vacate the trial
court’s judgment and remand this case for a new trial, but solely on the
issue of damages.
Cases posted the week of 06/20/2005
Pauline Boyd vs. Rosa F. Cruze, et al -
E2003-02697-COA-R3-CV View
Anderson County -This litigation focuses on a judgment
creditor’s efforts to collect her money judgment by garnishment. On
October 13, 2003, the trial court entered an “Order for Judgment and
Costs” against the garnishee, Jalisco Mexican Restaurant
(“Jalisco”), for $100,000. Jalisco appealed. We remanded the case
to the trial court “for a determination of the proper record” on
appeal. In response to the remand, the trial court determined and held that the
statement of the evidence filed by Jalisco was the correct record of the
proceedings below; however, the court went further and made a number of
findings and decrees, including its holding that “no proof ha[d] been
introduced with respect to the amount of wages that were or should have been
paid” to the judgment debtor. We hold that the trial court exceeded the
parameters of the remand when it made additional findings and decrees beyond
its designation of the proper record on appeal. The trial court, in so doing,
exceeded its jurisdiction as defined in and by the order of remand. We further
hold (1) that the response filed by Jalisco is sufficient to constitute an
answer and rebut the statutory presumption that Jalisco is “indebted to
the [judgment debtor] to the full amount of the [judgment creditor’s]
demand”; and (2) that Tenn. Code Ann. § 26-2-209 (2000) is not
implicated by the facts of this case. Accordingly, we reverse and hold for
naught (1) the trial court’s findings of November 12, 2004; and (2) the
decrees in its order of January 13, 2005, except to the extent of the
court’s decree that “[t]he Statement of the Proceedings submitted
by [the judgment debtor] is adopted by the [c]ourt.” We reverse the trial
court’s order of October 13, 2003, and dismiss the garnishment served on
Jalisco, having concluded that the evidence fails to show that a judgment in
any amount against Jalisco is warranted.
Albert Allen Arnold , et al vs. Henry
Bowman - E2004-01151-COA-R3-CV View
Rhea County -Albert Allen Arnold, in his capacity as
trustee for Robert Ivens and Jackie West, and, in addition, Robert Ivens and
Jackie West, individually (“the plaintiffs”) filed the instant
action against Henry Bowman (“the defendant”), claiming interests
in real property (“the subject property”) titled solely in the name
of the defendant. In addition to that cause of action, Ivens asserted that he
and the defendant had a dispute as to the location of the property line
separating the subject property from another tract owned by Ivens. The trial
court granted the defendant summary judgment as to all of the plaintiffs’
claims. It subsequently conducted a bench trial on the defendant’s
counterclaim; in that counterclaim, the defendant had alleged that Arnold had,
without the benefit of a license, acted as a real estate broker and received a
fee in connection with the defendant’s purchase of the subject property.
The bench trial also addressed the defendant’s request for Tenn. R. Civ.
P. 11 sanctions. At the trial, these remaining issues were also found in favor
of the defendant. The plaintiffs Arnold and Ivens appeal. We affirm the trial
court’s grant of summary judgment to the defendant as to the appealing
plaintiffs’ claim that Ivens owns an interest in the subject property,
but we vacate so much of the award of summary judgment as holds that
Ivens’ property line dispute is barred by the doctrines of res judicata
and collateral estoppel. We affirm the trial court’s judgment regarding
the defendant’s claim that Arnold acted as a real estate broker without a
license, but reverse that portion of the judgment holding that Ivens is jointly
and severally liable with Arnold for the statutory penalty assessed in response
to Arnold’s misconduct. Furthermore, we vacate the trial court’s
award of a Rule 11 sanction. We remand for further proceedings.
James O. Bailey, et al vs. Robin Crum, et
al - E2004-00953-COA-R3-CV View
Hawkins County -In this case, the Appellant argues that
the trial court erred in holding her in willful contempt of court for violating
the court’s prior order of injunction and for failing to appear for the
hearing on the petition for contempt. The trial court sentenced the Appellant
to ten days in jail and imposed a fine of $50.00. Upon our finding that the
contempt was criminal in nature and that the Appellant was not accorded her
rights of due process under Tenn. R. Crim. P. 42(b), the judgment of the trial
court is reversed in part, vacated in part and the cause is remanded for
further proceedings.
Tammy Lynn Hunter v.
Timothy Edwin Hunter - M2002-02560-COA-R3-CV
View
Maury County
-The trial court granted a divorce to Wife on the ground of Husband’s
inappropriate marital conduct, divided the marital property, made Wife primary
residential parent for the parties’ two children, and ordered Husband to
pay child support, alimony, and attorney fees. Husband argues on appeal that
alimony was inappropriate, that the property division was based on incorrect
determinations, and that the parenting plan adopted by the court gave him less
residential time with the children than he was entitled to. We affirm the trial
court.
Lesley LaPointe Walker v. Kenneth
Wayne Walker - M2004-00159-COA-R3-CV View
Davidson County -Appellant was held in criminal
contempt of court for failure to pay alimony. We affirm the action of the trial
court and find the appeal to be frivolous.
Elizabeth Diaz Graham vs. Christopher Scott
Graham - E2004-02247-COA-R3-CV View
Bradley County -Elizabeth Diaz Graham
(“Mother”) and the parties’ two minor children moved to
Georgia in early 2000 following Mother’s separation from Christopher
Scott Graham (“Father”). When the parties were divorced, the Trial
Court expressly sanctioned Mother’s move to Georgia. In June of 2004,
Mother abruptly moved to Jacksonville, Florida, without first notifying Father.
Father filed a petition objecting to Mother’s relocation. Following a
hearing, the trial court concluded that Tenn. Code Ann. § 36-6-108
applied, that Mother had no reasonable purpose for relocating to Florida, and
that it would be in the best interest of the children for Father to be
designated as the primary residential parent. We conclude that the
preponderance of the evidence weighs against the trial court’s conclusion
that it would be in the best interest of the children for Father to be
designated as the primary residential parent.
Knoxville Community Development Corporation
vs. Emanuel Bailey - E2004-01659-COA-R3-CV
View
Knox
County -This case involves a dispute over compensation for property
taken by eminent domain. The Knoxville Community Development Corporation
insisted that the property was worth only $19,500 and deposited that amount
into the court. The landowner claimed it was worth much more. Following a
trial, the jury found the fair market value of the property to be $25,700. The
landowner appeals, contending that the trial court erred in instructing the
jury that they could consider the tax assessment figures in their valuation of
the property. We agree, and we reverse the trial court.
Mary Elizabeth Jackson vs. Samuel William
Bownas, et al - E2004-01893-COA-R3-CV View
Blount County -In
this boundary dispute between two lot owners in adjacent subdivisions, the
trial court relied on an old fence line to establish the boundary and award
plaintiff damages for trespass. Given that the deeds and surveys were
inconclusive, it is appropriate to look to the most reliable monumentation to
establish the line. We affirm.
James
Saffles, et al vs. Roger Watson, et al - E2004-02599-COA-R3-CV
View
Monroe County
-The Chancery Court granted Rule 11 sanctions against James Saffles and Connie
Saffles (“Plaintiffs”) based upon their actions and the resulting
delay that occurred after the filing by Roger Watson and Tammy Watson
(“Defendants”) of a motion seeking Rule 11 sanctions. We hold that
the imposition of Rule 11 sanctions on the grounds relied on by the Chancery
Court was error, vacate the grant of Rule 11 sanctions, and remand for a
reconsideration of Defendants’ motion for Rule 11 sanctions and a
determination of whether the imposition of Rule 11 sanctions is proper based on
the grounds raised in the Rule 11 motion.
Cases posted the week of 06/13/2005
Frankie Sliger vs. Darrell Sliger -
E2003-02747-COA-R3-CV View
Knox County -
Frankie Robin Sliger obtained her first order of protection against the
defendant – her then-husband, Darrell Dwayne Sliger – on September
23, 1997. Six years later, and following the entry and extension of a series of
such orders, the defendant was convicted in the instant case of 21 violations
of the present order of protection. The trial court sentenced him to serve 10
days in jail for each violation; it also reinstated an additional 310 days of
incarceration for 31 earlier violations. Enforcement of the additional 310 days
of incarceration had been stayed so long as the defendant continued "good
behavior." The defendant appeals, arguing that the trial court (1) abused its
discretion in denying his request for a continuance; (2) erred in failing to
grant him a jury trial; and (3) erred in failing to hold that his conduct
resulted in only two rather than 21 violations. We affirm.
Cheryl Graves vs. Richard Graves, Sr. -
E2004-02141-COA-R3-CV View
Cocke County - The
sole issue on this appeal is whether the trial court erred in holding that
Cheryl Smith Graves ("Wife") is not entitled to post-judgment interest on
alimony due her under her judgment of divorce from Richard C. Graves, Sr.
("Husband"), which judgment was entered December 3, 2001, nunc pro tunc August
24, 2001. The trial court premised its judgment on its finding that "[Wife]
ha[d] been obstructive in the conclusion of this matter." We hold that Wife is
entitled to interest on all alimony payments to the extent that those payments
were not timely made. Accordingly, we reverse the judgment of the trial court.
Dale Scott vs. Marion Yarbro -
W2004-00746-COA--R3-CV View
Decatur County - This
appeal involves the ownership of a parcel of real property held by
tenants-in-common. After reviewing the trial court's order and the record, we
have determined that the trial court's order does not constitute a final
judgment. Accordingly, this appeal is dismissed for lack of jurisdiction, and
the case is remanded to the trial court for further proceedings.
Vernon McBride Jr. vs. Barbara Sumrow -
W2004-01086-COA-R3-CV View
Lauderdale County -
This is a will construction case. The decedent died testate in May 2002. In his
will, he left certain properties in trust for the benefit of his spouse during
her lifetime. The will detailed how the properties were to be distributed in
the event his spouse predeceased him. The will did not state how the remainder
interest in the properties was to be distributed in the event his spouse
survived him. The decedent was survived by his spouse. The co-executors filed a
declaratory judgment action to interpret the will. The trial court ruled that
the decedent died partially intestate, with the remainder interest in the
specific properties passing through the laws of intestate succession. The
co-executors of the trust appealed, arguing that the there was an error in the
drafting of the will and that the decedent would have wanted the properties to
be distributed in the same manner, regardless of whether his spouse predeceased
him. We affirm, finding that, under these circumstances, the will cannot be
reformed and the property must pass through the laws of intestate succession.
In matter of D.B. vs. Ramona Bokan/Aire
Dailey - W2004-01915-COA-R3-PT View
Benton County - This case
is about termination of parental rights. The father was incarcerated, and the
mother lived in a mobile home in abysmal conditions, with no telephone and no
transportation. The child was born on the floor of the mobile home and
hospitalized shortly thereafter. Due to the poor living conditions, the State
took custody of the child. Over the next three years, the mother and father
worked with the Department of Children's Services in an attempt to remedy the
conditions that prevented the child's return. These conditions included alcohol
and drug abuse and domestic violence. The juvenile court found that the parties
continued to engage in physical abuse, and that the mother nevertheless
continued to live with the father, creating unsafe living conditions for the
child. The juvenile court terminated the parental rights of both parents,
finding that the conditions that precluded the child's safe return to the home
still persisted after three years and would likely continue. The mother
appealed. We affirm, finding that the evidence supports the juvenile court's
finding of persistent conditions.
Bernard L.
Graff, et al vs. Walnut Place Subdivision Homeowners Assoc. -
E2004-01757-COA-R3-CV View
Jefferson County - Two
members of a homeowners' association, the governing body of a planned unit
development, filed this complaint alleging that the association, a corporation,
was in contempt of the court for its refusal to allow the plaintiffs to inspect
corporation records. The trial judge declined to find the corporation in
contempt. We affirm.
In Re: Estate of
Joe Mack Russell - E2004-00765-COA-R3-CV
View
Sullivan
County - In this appeal, the Plaintiff argues that the trial court
abused its discretion in dismissing his suit to contest a will and contends
that the trial court should have held the case in abeyance instead. Upon
motions of the Plaintiff, the trial court had continued trial of the will
contest on two prior occasions to times requested by the Plaintiff. Given this
finding and further findings that the Plaintiff never requested that the case
be held in abeyance and that the Plaintiff neither filed a motion that the case
be continued from the date of trial nor notified the trial court beforehand
that he would not be present at trial, we affirm the judgment of the trial
court and remand.
Marty Kendall v.
Vanderbilt Bill Wilkerson Center - M2004-00993-COA-R3-CV
View
Davidson County
- Plaintiff appeals the dismissal of her lawsuit as being time barred.
Plaintiff timely filed an action for wrongful discharge of her employment.
Summons was issued but never served on Defendant. Plaintiff then took a
voluntary dismissal but did not serve, nor attempt to serve, a copy of the
notice of voluntary dismissal, the order of dismissal or a copy of the initial
complaint on Defendant as required by Tenn. R. Civ. P. 41.01. Plaintiff filed
this action to revive her claim of wrongful discharge within one year of the
voluntary dismissal of her first action but more than one year after
termination of her employment. Defendant filed a Motion to Dismiss contending
that Plaintiff's claims were time barred, which the trial court granted.
Plaintiff appealed. We affirm.
Jennifer
Spurgeon v. Kevin Spurgeon - M2004-00028-COA-R3-CV
View
Houston County
- Wife appeals a trial court judgment finding that she is not entitled to
rehabilitative alimony, back child support, a portion of the husband's "paid
time off" accumulated during the marriage and attorney fees. We reverse the
trial judge's ruling that the wife is not entitled to rehabilitative alimony
and remand the alimony issue to the trial judge to conduct a hearing to
ascertain her need for rehabilitation and the husband's ability to pay. We
affirm on all other issues.
Will
Shatford v. Smallbusiness.com, Rex Hammock, & Hammock Publishing -
M2003-02315-COA-R3-CV View
Davidson County -
This case is about fraud and negligent misrepresentation. In the fall of 2000,
the plaintiff employee accepted an offer for employment with the defendant's
internet company. Approximately three months after the employee began work, the
company became insolvent and closed. The employee sued the defendant owner of
the internet company, asserting that the company owner made false statements to
him regarding the financial strength of the company. The employee sought
damages for breach of contract and for fraud and negligent misrepresentation.
The employee received a judgment against the company for contract damages
related to the employment contract. The company owner then sought summary
judgment on the remaining claims of fraud and negligent misrepresentation. The
trial court granted the company owner's motion for summary judgment, finding
that the employee could not, as a matter of law, establish that he had relied
on the company owner's statements that were the basis for the claims of fraud
and negligent misrepresentation. The employee appeals. We reverse, finding that
the employee's reasonable or justifiable reliance on the statements was a
genuine issue of fact and thus summary judgment was not proper.
Denns
Shepherd v. Ignacio Fregozo & Nationwide Mutual Ins. -
M2004-00245-COA-R3-CV View
Davidson County -
Appellant, a Metropolitan Nashville police officer was seriously injured in an
on-duty automobile accident when Defendant's vehicle crashed into the rear of
his patrol car. Defendant was uninsured. Metropolitan Nashville was
self-insured and did not provide uninsured motorist coverage for its patrol
officers. Plaintiff named Nationwide as a defendant in an effort to recover
under the uninsured motorist provision of the policy issued to him insuring his
personal vehicle. Nationwide defended under a policy exclusion involving
non-insured vehicles made available for his regular use. The trial court
granted summary judgment to Nationwide, and we affirm the action of the trial
court.
Karen Ann Walton vs. William
Arthur Tice - E2004-01733-COA-R3-CV View
Knox County - Karen
Ann Walton ("Mother") and William Arthur Tice ("Father") are the parents of a
minor child ("the Child"). Mother and Father never married, but joined in
filing a Petition for Legitimation averring that Father was the Child's natural
parent. In 1994, the Trial Court entered an order finding the child support
guidelines inapplicable due to the extensive amount of co-parenting time the
Child spent with each parent. In 2003, Mother filed a petition seeking, in
part, to modify Father's child support obligation. The case was tried and the
Trial Court entered an order finding inter alia, that Father, although
unemployed, "has the ability to earn substantial income in the amount of One
Hundred and Sixty-Two Thousand Dollars ($162,000) per year and child support
shall be set in the Guidelines amount of Two Thousand and Fifteen Dollars
($2,015.00) per month." Father appeals. We affirm.
Tennessee Insurance Guaranty Assoc. v. Centre
Insurance - M2003-02647-COA-R3-CV View
Davidson County -
Tennessee Insurance Guaranty Association, a statutory agency created to meet
certain obligations of insolvent insurance companies relative to workers'
compensation, sued Centre Insurance Company seeking exoneration of certain
workers' compensation obligations assumed by the agency upon the insolvency of
Commercial Compensation Insurance Company. The trial judge granted summary
judgment to Centre, and we affirm the action of the trial court.
Carol Smith v. William Smith, Jr. -
M2003-02033-COA-R3-CV View
Williamson County -
In this post-divorce proceeding, Wife sought an increase in child support based
upon Husband's substantial inheritance from his mother. She also sought relief
for Husband's alleged breach of the Marital Dissolution Agreement relative to
the disposition of property. She further sought child support based upon
imputed income of Husband because of voluntary underemployment. Husband
appealed the judgment of the trial court. Wife assigned error as to certain
findings by the trial court. We affirm as modified herein the judgment of the
trial court.
Hal Gerber vs. Virginia
Segal - W2004-00805-COA-R3-CV View
Shelby County - This
is the second appeal in an action to collect attorney's fees. The plaintiff
attorney represented the defendant in her divorce action, which lasted from
1996 to 1999. He billed the defendant approximately $100,000 for his services.
Over the course of the divorce action, the defendant paid the plaintiff about
$61,000, and still owed a balance of about $39,000. The attorney filed this
lawsuit to recover the balance. After a two-day trial, the trial court
concluded that the plaintiff attorney's fees were fair and reasonable, and that
the defendant owed the plaintiff the fees claimed. The defendant now appeals
that decision. We affirm.
Cases posted the week of 06/06/2005
Freddie D. Alley vs. McLain's Inc. Lumber
and Construction, et al - E2004-02207-COA-R3-C
View
Hawkins
County - This case involves the wrongful cutting of timber on the
plaintiff's property. Freddie D. Alley brought this action against McLain's
Inc. Lumber and Construction, which cut and harvested timber from his property
after Defendant Stephen Snodgrass falsely represented to McLain's that he owned
the property and wanted to sell the timber. McLain's filed a counter-complaint
and a third-party complaint against the co-owners of the property, alleging
their comparative fault in preparing and executing a contract for sale of the
real estate to Mr. Snodgrass. The case was tried to a jury, which found the
co-owners partially at fault, Mr. Snodgrass partially at fault, and no fault on
the part of McLain's. The issue presented is whether the trial court erred in
failing to set aside the jury verdict and grant a new trial. We hold that based
on stipulations prior to trial, there was no material evidence of negligence on
the part of the co-owners. We also hold that the jury verdict is inconsistent.
Therefore, we reverse the judgment in part, vacate in part and remand for a new
trial.
Barbara Johnson vs. Edward
Pratt - W2003-0210-COA-R3-CV View
Shelby County
- Plaintiff/Patient filed a complaint against Defendant/Doctor alleging medical
malpractice for failure to obtain her informed consent before operating. The
trial court granted summary judgment to Defendant/Doctor on the basis that
Plaintiff/Patient had failed to meet the burden of proof required by T.C.A.
§29-26-115 and T.C.A. §29-26-118. Plaintiff appeals. We affirm.
In Re: M.L.D. - W2004-02695-COA-R3-PT
View
Shelbby County -
Petitioners, Mother and her husband, brought a petition to terminate Father's
parental rights on the grounds of abandonment. The trial court found that clear
and convincing evidence did not support a finding a willful abandonment and
dismissed the petition. We affirm.
Stanley
Kahn vs. Randa Kahn - W2003-02611-COA-R3-CV View
Shelby County - This
appeal arises out of a divorce between the parties. In its decree, the trial
court declared the parties were divorced, divided the marital property and the
debts of the parties, ordered the husband to pay the entire balance of the
guardian ad litem fees, named the wife the primary residential parent, and
ordered the husband to pay wife child support. The husband now appeals to this
Court. For the following reasons, we affirm in part, reverse in part, and
remand for further proceedings.
In re: Estate
of William Luck vs. FDS/Goldsmith's - W2004-01554-COA-R3-CV
View
Shelby County -
Following the decedent's death, his estate was not admitted to probate until
well over one year from the date of his death. A creditor filed a claim against
the estate over twenty-one months after the decedent's date of death. The
executors filed an exception to the creditor's claim arguing that it was barred
since it was not filed within one year of the decedent's date of death. The
probate court, relying on a previous decision rendered by this Court, held that
the creditor's claim was not barred by the applicable statutes. After reviewing
the applicable statutory language and the decisions rendered by this Court
interpreting those statutes, we reverse.
Nathan & Brandy Henderson vs. Quest
Expeditions, Inc. - E2004-02585-COA-R3-CV
View
Polk County -
In this action for personal injuries allegedly due to defendant's negligence,
the Trial Court granted defendant summary judgment on the grounds that
plaintiffs had executed a Waiver and Release of Liability which was required by
defendant prior to plaintiffs' participation in white water rafting. Plaintiffs
have appealed, insisting the Release is void as against the public policy of
this State. We affirm.
Gregory & Angela
Bargo vs. Larry Schmitt Construction - E2004-02937-COA-R3-CV
View
Hamilton County -
Grantors erected a house and driveway over an easement which was then sold to
grantees. Grantees brought an action for damages to encumbered property and the
Trial Court awarded grantees damages. We affirm.
Lance Grigsby, et al vs. City of Plainview -
E2004-01644-COA-R3-CV View
Union County - East
Tennessee Pioneer Oil Company owned and operated a Spur convenience store in
Plainview, Tennessee. As part of a bankruptcy proceeding, the Spur was sold at
public auction. Potential purchasers were informed prior to the sale that the
Spur was being sold with an active beer permit so long as the purchaser
retained Wanda Cherry Evans ("Evans") as manager. In September of 2002, Lance
and Lori Grigsby purchased the Spur, retained Evans as manager, and continued
to sell beer after renaming the store the All American Market and Deli. On
February 20, 2003, the beer board (the "Board") for the City of Plainview voted
to revoke the beer permit. On July 3, 2003, the Grigsbys and Evans
("Plaintiffs") filed a complaint requesting the Trial Court grant a writ of
certiorari and review the action of the beer board in revoking the beer permit.
The City of Plainview (the "City") filed a motion to dismiss claiming that the
Trial Court lacked subject matter jurisdiction because the complaint was not
filed within sixty days from the entry of the Board's order or judgment and,
therefore, the complaint was time barred. The Trial Court agreed and dismissed
the complaint. We vacate the judgment of the Trial Court and remand for further
proceedings.
Ruby & Charles Smith vs.
Sammie Shaw - W2004-01772-COA-R3-CV View
Shelby County - This
case is about a motion to set aside an order of dismissal. In 1997, the
plaintiff sued the defendant for damages resulting from a 1996 car accident. On
February 18, 2002, the trial court signed an order dismissing the lawsuit for
failure to prosecute. That order was not filed by the court clerk until two
years later, on February 18, 2004. During the two years between the time the
dismissal order was signed until it was filed, both parties continued discovery
and negotiation. After discovering the dismissal in 2004, the plaintiff
asserted that neither party had received notice of the dismissal. The plaintiff
then filed motions under Rules 59 and 60 of the Tennessee Rules of Civil
Procedure, asking the trial court to set aside the order of dismissal. The
motions were denied, and the plaintiffs appeal. We reverse, finding that under
the circumstances of this case, the order of dismissal should have been set
aside.
The Alison Group vs. Greg
Ericson - W2003-02973-COA-R3-CV View
Shelby County -
This appeal arises out of an action filed by Appellee to confirm an arbitration
award. Appellants contest whether Appellee, as a foreign corporation without a
certificate of authority, may avail itself of the Tennessee judicial system to
enforce the arbitration award. The trial court determined that Appellee was
exempted from the requirement of obtaining a certificate of authority and
confirmed the arbitration award in favor of Appellee. Additionally, the trial
court denied Appellee's request for attorney's fees incurred to collect the
arbitration award. For the following reasons, we affirm.
Cases posted the week of 05/30/2005
Clinton William Clarneau v. Angela Dawn
Clarneau - M2003-02182-COA-R3-CV View
Bedford County -
This is a custody dispute. The trial court granted the father's petition to
modify custody and changed primary custody of the parties' two minor children
from the mother to the father, based on findings of a material change of
circumstances and the best interests of the children. On appeal, we reverse the
trial court's modification of custody finding there has not been a material
change of circumstances justifying a change of custody and that the children's
best interests are served by remaining with Mother.
Robert Bean et al. v. Phil Bredesen et al. -
M2003-01665-COA-R3-CV View
Davidson County - The
parties challenging the constitutionality of Tenn. Code Ann. §
70-4-403(4)(B) (2004) have filed a petition for rehearing pursuant to Tenn. R.
App. P. 39 requesting this court to reconsider portions of its May 2, 2005
opinion. The petition asserts that we have ignored material facts and
misunderstood the statutes and rules relating to cervidae in Tennessee. We have
carefully considered the points raised in the petition and have determined that
the petition raises no new factual or legal matters that we have not already
considered.
National Bank of Commerce
vs. Universal Transaction Consultants - W2004-01590-COA-R3-CV
View
Shelby County
- Plaintiff National Bank of Commerce filed a declaratory judgment action
seeking a declaration that its agreement with Defendant Universal Transaction
Consultants, Inc. was null and void for Defendant's failure to perform a
condition precedent. Defendant counter-claimed for breach of contract and
tortious interference with contract. The trial court determined that Universal
Transaction Consultants had failed to prove damages and dismissed the claims of
both parties. We affirm.
Lorenzo White vs.
Carolyn Hayes - W2004-01281-COA-R3-CV View
Tipton County - This
is a will construction case. The testator died in 1912, leaving a holographic
will. In the will, the testator left his real estate to his children for life,
then to his grandchildren for life, then to his great-grandchildren until they
became of age, then to be divided "as law directs." In 1992, after the last
grandchild had died, the great-grandchildren of the testator petitioned the
trial court to interpret the will and set out the rights of the parties. The
trial court concluded that the testator intended to leave the remainder
interest in his property to the great-grandchildren per stirpes. The appellant
great-grandchild filed the instant appeal, claiming that the trial court should
have construed the devise as being per capita, not per stirpes. We affirm,
concluding that the trial court's finding of a per stirpes division of the
property is consistent with the laws of intestate succession in Tennessee.
Sandra Buettner vs. Neil Buettner -
W2004-01788-COA-R3-CV View
(Dissent) - View
Henry County - The
trial court increased Husband's alimony obligation pursuant to the parties'
MDA. It also denied Husband's petition to modify alimony and increased Wife's
child support obligation retroactive to June 1, 2003. We affirm in part,
reverse in part, and remand.
Dept. Children
Serv. vs. Amanda Hardin - W2004-02880-COA-R3-PT View
Benton County - This is a
termination of parental rights case. Father appeals from the order of the
Juvenile Court of Benton County terminating his parental rights. Specifically,
Appellant asserts that the grounds of failure to substantially comply with the
permanency plan and persistence of conditions are not supported by clear and
convincing evidence in the record, that the Department of Children's Services
failed to exercise reasonable efforts toward reunification and/or relative
placement, and that termination of his parental rights is not in the best
interest of the child. Because we find clear and convincing evidence in the
record to support the trial court's findings, we affirm.
Jerry Trull vs. Brad Ridgeway -
W2004-02026-COA-R3-CV View
Henry
County - Plaintiffs-landowners filed a chancery court complaint
seeking to establish ownership of a parcel of real estate which they claimed by
adverse possession. The trial court dismissed the complaint pursuant to the
provisions of T.C.A. § 28-2-110 (failure to pay real estate taxes for
twenty years) and also allowed defendants to take a voluntary nonsuit of a
counter-claim against the plaintiffs. Plaintiffs appeal. We affirm.
Dawn Shannon vs. Thomas Shannon -
W2003-02258-COA-R3-JV View
Shelby County - The
trial court dismissed Plaintiff's petition to register and modify a foreign
decree of child support for lack of jurisdiction. We reverse in part, affirm in
part, and remand.
Shannon Young vs. Tony
Parker - W2004-02329-COA-R3-CV View
Lake County - The
Petitioner, an inmate in custody of the Tennessee Department of Correction,
appeals from the order of the trial court dismissing his petition for common
law writ of certiorari as being untimely filed. We affirm.
Joseph Parker, Jr. vs. Joseph Parker, Sr. -
E2004-00429-COA-R3-CV View
Seview County -
Appellant, who successfully fended off appellee's Petition to Appoint
conservation for appellant, asked for attorney's fees from appellee pursuant to
Tenn. Code Ann. § 34-1-114, which the Trial Court denied. We affirm.
Christy Berry vs. Lester Berry -
E2004-01832-COA-R3-CV View
(Concur) - View
Knox County - This
is a post divorce child custody case. The trial court changed custody to the
father based upon the mother's homosexuality and the effect it would have on
the child as he grew older. We hold that the evidence preponderates against the
trial court's finding that there had been a material change in circumstances to
justify a change of custody in the absence of proof that the mother's sexual
orientation had affected or would affect the child's well-being in any
meaningful way. Accordingly, the trial court's decision is reversed.
Gary Flanary, et al vs. Carl Gregory Dodge, LLC
- E2004-00620-COA-R3-CV View
(Concur) - View
Washington County -
Gary Flanary filed suit against Carl Gregory Dodge of Johnson City, LLC ("the
dealership") and alleged that the dealership, without negotiation and without
his knowledge or consent, had charged him with an "administrative fee" in
connection with his purchase of a vehicle. Flanary claimed that this practice
violated, inter alia, the Tennessee Consumer Protection Act ("the TCPA"). He
sought class action certification. The dealership filed a motion for summary
judgment, relying upon the arbitration agreement ("the Agreement") signed by
Flanary at the time he purchased the vehicle. It contended that Flanary was
bound to arbitrate any claims he had against the dealership. The trial court
stated that it personally did not believe an agreement to arbitrate under the
circumstances of this case was fair; but, nevertheless, it opined that it felt
compelled by the current state of the law to hold that arbitration was mandated
by the terms of the Agreement. Flanary appeals the trial court's order
requiring him to submit to arbitration. We affirm the judgment below to the
extent the trial court, albeit reluctantly, held that the Agreement, on its
face, is enforceable. However, based upon our determination that the Agreement
was never accepted by the dealership, we vacate so much of the trial court's
judgment as holds that the parties entered into a contract to arbitrate.
Accordingly, we remand for further proceedings on Flanary's complaint.
In Re: The Estate of Joseph Owen Boote, Jr. v.
Helen Shivers - M2003-02656-COA-R3-CV View
Marshall County -
Appellants are residuary beneficiaries of their father's estate. They challenge
the estate's payment of attorney fees and expenses incurred by executrix (the
widow of testator and stepmother of Appellants) in unsuccessfully defending
against her removal as executrix. Appellants contend that because litigation
concerning the removal of their stepmother as executrix was solely for the
personal benefit of the executrix and was necessitated by her neglect in
administering the estate, the trial court erred as a matter of law in ordering
the attorney fees and expenses incurred in defending against the removal
petition be paid out of the estate. Appellee, the former executrix, contends
that the trial court did not err in exercising its discretion in ordering legal
fees to be paid out of estate. Finding that the trial court erred in ordering
the expenses paid out of the estate, we reverse and remand.
Keith Garrett v. Priscilla Garrett, et al.,
Estate of Luther Gaston Garrett - M2002-03106-COA-R3-CV
View
Fentress County
- In this second appeal of this case, the Trial Court had ruled that appellee
was entitled to a dwelling house and all improvements on land owned by the
Deceased. Appellant appeals this and numerous issues. We affirm.
Cases posted the week of 05/23/2005
Gloria Kim Smith vs. Charles A. Portera,
M.D., et al - E2004-02960-COA-R3-CV View
Hamilton County
- The plaintiff in this medical battery case argues that the trial court erred
in granting the defendant doctor summary judgment and argues that a genuine
issue of material fact exists as to whether she consented to an unnamed
surgical procedure in addition to scheduled procedures named in a hospital
consent form. The trial court granted the defendant's motion for summary
judgment upon findings that the case was actually a suit for medical
malpractice, rather than medical battery, and that the plaintiff failed to
present expert proof that such surgery was not in her best interest. We vacate
the judgment of the trial court and remand for trial on the merits upon our
finding that the plaintiff's suit states a cause of action for medical battery;
and that the consent form signed by the plaintiff authorized the additional
surgery only if it was required by an unforseen condition and whether there was
an unforseen condition requiring the additional surgery remained a genuine
issue of material fact.
Kelli Whiteside
vs. Michael A. Hedge, et al - E2004-02598-COA-R3-CV
View
Knox County -
The sole issue in this case is whether extraneous prejudicial information was
improperly brought to the attention of the jury.
In the Matter Of Eugene Ellis vs. Jerry Ellis &
Sarah Kerley - E2004-02346-COA-R3-CV View
Cocke County - The
Trial Court awarded fees to the Guardian Ad Litem who asked the Trial Court to
award him fees and costs for collecting the initial award. The Trial Court
refused. On appeal, we affirm.
Debra
Williams vs. George Williams - E2004-00423-COA-R3-CV
View
Hamilton
County - Debra Ann Williams ("Mother") and George Jay Williams, IV
("Father") were divorced in 1998. Mother was designated the custodial parent of
the parties' two minor children. In 2003, Father filed a Petition for
Modification and Contempt seeking, in part, a change in custody or visitation,
and relief from the requirement that Father carry life insurance or, in the
alternative, that Mother also be required to maintain life insurance. Mother
filed a counter claim requesting, in part, increased child support and the
right to claim the tax exemption for both children. After a trial, the Trial
Court entered an order holding, inter alia, "that there has been no change in
circumstances which would justify the modification of the final judgment" as
requested by Father and dismissing Father's petition for modification. The
Trial Court, however, increased child support in accordance with the guidelines
and held that for purposes of calculating child support under the guidelines,
Father was not entitled to a reduction in his annual earnings for state income
taxes he may pay. Father appeals raising issues regarding custody, visitation,
life insurance, child support, and attorney's fees. We reverse as to the award
to Mother of the tax exemption for one child, and affirm as to all other
issues.
Justin Thurman vs. Justin
Harkins - W2004-01023-COA-R3-CV View
Fayette County -
This case involves a question of whether an insurance policy covers the
injuries sustained by the plaintiff under the facts of this case. The original
suit filed by plaintiff against Justin Harkins, Andrew Keon, and James Keon was
settled out of court, leaving Great River Insurance Company, an unnamed
defendant. After granting the plaintiff's motion for declaratory and partial
summary judgment on whether the plaintiff was a covered insured under the
policy, the parties agreed to send the matter to arbitration. The arbitrator
returned an award in favor of the plaintiff, and the trial court confirmed the
award but reduced the amount, accounting for the insurance policy's limit. The
trial court also awarded the plaintiff pre-judgment interest but stated that
the total award to the plaintiff could not exceed the limit in the insurance
policy. Great River Insurance Company appealed to this Court, and the plaintiff
filed a cross-appeal. For the following reasons, we affirm.
Alfonzo Arze vs. Mary Anne Arze -
E2004-01325-COA-R3-CV View
(Dissent) - View
Washington County - Alfonzo Silvestre Arze ("Father") and
Mary Anne Bracken Arze ("Mother") were divorced in 2000. The divorce was based
upon stipulated grounds of irreconcilable differences, and the parties
submitted a marital dissolution agreement ("MDA") to the Trial Court for
approval. The terms of the MDA were agreed upon through mediation. At the time
of the divorce, Father was employed as a physician with gross earnings of
approximately $150,000. Mother was unemployed. Due to the significant disparity
in income, Father agreed to pay Mother $2,000 in child support even though he
was not obligated legally to do so since he was the primary residential parent
for the parties' four children. When the oldest child turned eighteen, Father
reduced his child support payments by twenty-five percent, $500. After Mother
challenged Father's unilateral reduction in child support, the Trial Court
entered an order which required Father to pay child support in an amount
consistent with the Child Support Guidelines ("Guidelines"). We conclude that
because Father was not legally obligated under the Guidelines to pay any child
support, the payment of $2,000 was purely a contractual obligation which was
not governed by the Guidelines. We also conclude that Father was within his
contractual rights when he reduced the child support payments by $500 when the
oldest child became emancipated.
John Jay
Hooker v. Senator Lamar Alexander, et al. - M2003-01141-COA-R3-CV
View
Davidson County -
Appellant was an independent candidate for election to the United States Senate
in the November 5, 2002, election in which he was defeated by the present
incumbent Lamar Alexander. He seeks to have the election declared void on the
basis that Alexander used his own money and accepted campaign contribution in
support of his candidacy. He alleges that such self financing arrangements and
campaign contributions financing violate the qualifications clauses and the
equal protection and due process clauses of both the Federal and State
Constitutions. Named as defendants were Lamar Alexander, Attorney General Paul
Summers and the Lamar Alexander for Senate Committee. All defendants filed
Tennessee Rule of Civil Procedure 12.02(6) motions to dismiss, which motions
were granted by the trial judge. We affirm the actions of the trial court.
Roger Ralph vs. Robert Pipkin -
W2004-01479-COA-R3-CV View
Lauderdale County -
Plaintiffs in this action, Roger Ralph and Kem Ralph, were sued in federal
court for patent infringement and breach of contract. Their farmer's liability
insurance carrier, Grange Mutual, denied coverage and refused to defend.
Plaintiffs filed a complaint in the Lauderdale County Chancery Court against
Grange Mutual seeking a declaratory judgment, a judgment for breach of
contract, and specific performance. They also filed a complaint for
professional negligence and breach of contract against their insurance agent,
Pipkin Insurance Agency/Mr. Robert Pipkin. The trial court granted Grange
Mutual's motion to dismiss and awarded the Pipkin Insurance Agency/Mr. Pipkin
summary judgment. We affirm.
Douglas
McPherson vs. Shea Ear Clinic - W2004-00690-COA-R3-CV
View
Shelby County -
The trial court granted Defendant's motion to dismiss for failure to state a
claim upon which relief can be granted. Having reviewed the complaint, we
disagree and reverse.
Billy Pomeroy vs.
Illinois Railroad - W2004-01238-COA-R3-CV View
Shelby County -
Plaintiff, a switchman/brakeman for Illinois Central Railroad Company, filed a
claim for damages arising from injuries allegedly caused by the railroad's
failure to maintain a track switch. The jury allocated 100% fault to the
railroad and awarded Plaintiff $500,000 in damages. The trial court denied the
railroad's motion for a directed verdict, remittitur, or new trial. We affirm.
Cases posted the week of 05/16/2005
City Of Johnson City vs. Dorian Jones -
E2003-02534-COA-R3-CV View
Washington County -
Dorian Jones ("the defendant") was cited to the Municipal Court of Johnson City
for a violation of the Animal Control Ordinance ("the Ordinance") of the City
of Johnson City ("the City"). The City contends that the defendant failed to
have his dog "under control." Following a finding of guilt and the imposition
of a $50 fine and costs, the defendant appealed to the trial court. Following a
bench trial, the trial court entered its judgment, in which it held that the
defendant violated the Ordinance. The trial court dismissed the defendant's
appeal and decreed that "the fine of Fifty Dollars ($50.00) . . . be reinstated
and is hereby upheld and affirmed." The defendant appeals to us, contending
that he was entitled to a jury trial. He also argues, in legal effect, that the
evidence preponderates against the trial court's judgment. We affirm.
J & M, Inc. vs. Clarence Cupples &
Crete Carrier Corp. - E2004-01328-COA-R3-CV View
Scott County -
Plaintiff sued for damages incurred to correct condition of roadway caused by
defendants' motor vehicle which destroyed a section of guardrail. Defendants
appeal from Judgment awarding damages to plaintiff on grounds damages were not
proved. On appeal, we affirm.
Myrna White,
et al vs. Tucker smith, et al - E2004-02467-COA-R3-CV
View
Bradley County -
Myrna G. White ("Ms. White") was taking a walk on a public road when she was
bitten by a dog allegedly owned by Tucker and Lisa Smith ("Defendants"). Ms.
White and her husband, James T. White ("Mr. White"), filed this suit alleging
several causes of action, including negligence per se. The negligence per se
claim was predicated upon a violation of Tenn. Code Ann. § 44-8-408, which
makes it unlawful for a dog owner to allow his or her dog to run at large.
After a trial, the Trial Court made several factual findings which established
negligence by Defendants. However, the Trial Court went on to conclude that
pursuant to Tenn. Code Ann. § 44-8-408, Defendants were liable to
Plaintiffs because their dog was at large when it attacked Ms. White,
regardless of whether Defendants were negligent or had exercised reasonable
care. Plaintiffs established that Defendants were negligent by allowing their
dog to run at large from time to time. Therefore, we affirm the judgment of the
Trial Court and decline to decide whether a dog owner may be held strictly
liable for a violation of Tenn. Code Ann. § 44-8-408 without any finding
of negligence.
Joyce L. Elkins, et al vs.
Hawkins County - E2004-02184-COA-R3-CV View
Joyce L. Elkins ("the plaintiff") and
her husband, Rondal Elkins, brought this action pursuant to the Governmental
Tort Liability Act ("the GTLA"), Tenn. Code Ann. § 29-20-101, et seq.,
seeking damages flowing from the injuries sustained by the plaintiff when she
tripped and fell as she entered a bathroom in the basement of the Hawkins
County Courthouse. She tripped on the threshold at the entrance to the
bathroom; her fall resulted in a broken hip. At the time of this incident, the
hallway adjacent to the bathroom was dimly lit. The plaintiff and her husband
allege that the county was negligent in failing to correct or warn about the
dangerous condition created by the threshold and the deficient lighting in the
hallway. Following a bench trial, the court found that the condition created by
the raised threshold and the position of the lighting created a dangerous
condition. The court further found that this condition had existed for a
substantial period of time so as to place the county on notice of its
existence. The county appeals. We affirm.
Julie Petty vs. Randy Petty -
E2004-01421-COA-R3-CV View
Loudon County -
In this divorce case, Mother was declared to be the primary residential parent
and Father's overnight co-parenting time was required to be exercised at his
parents' home with them present. This restriction was prompted by presentation
of evidence that Father had viewed computer internet sites exhibiting material
of a sexual nature and had placed a personal advertisement on an internet site
in an apparent effort to attract sexual partners. Father appeals. Absent proof
that Father's actions presented any risk of harm to his children, we modify the
judgment of the trial court and the parenting plan to delete the requirement
that Father's overnight visitation be supervised by his parents at their home.
We further modify the parenting plan to the extent that it does not require
mutual decision-making.
William Tassell,
et al vs. U.S. Bank, Inc. - E2004-01290-COA-R3-CV
View
Hawkins County -
William and Shirley Tassell's ("Plaintiffs") purchase of a house in 1998 was
financed through U.S. Bank, Inc. (the "Bank"). After Plaintiffs fell behind in
their payments, the Bank filed a detainer warrant and began the foreclosure
process. Plaintiffs claim they made a payment bringing their mortgage current
and they made this payment one day before their house was to be sold at
foreclosure. Plaintiffs claim the Bank, nevertheless, proceeded with the
foreclosure sale thereby forcing them to file this lawsuit seeking to have the
foreclosure set aside. The Trial Court denied Plaintiffs' request for a
temporary restraining order and refused to interfere with the foreclosure
proceedings, noting that no valid appeal had been taken in the detainer action.
Plaintiffs appeal. We dismiss this appeal because there is no final appealable
judgment as required by Tenn. R. App. P. 3(a).
Janet Blair Willson vs. Parl R. Wohlford -
E2004-02020-COA-R3-CV View
Sullivan County
- The dispositive issue in this legal malpractice case is whether the trial
court erred in granting the Defendant summary judgment on the grounds that the
applicable statute of limitations, Tenn. Code Ann. § 28-3-104(a)(2), had
run and therefore the complaint was time-barred. We hold that the Plaintiff
suffered a legally cognizable injury and that she knew or should have known
that her injury was caused by the Defendant's alleged negligence more than one
year prior to her filing of the complaint in this action. We therefore affirm
the judgment of the trial court.
State v.
Clinton Curtis Boyd - M2003-02557-COA-R3-CV View
Davidson County -
Clinton Curtis Boyd was charged with violation of Tenn. Code Ann. §
55-10-406(3) – the so-called "implied consent law" – for refusing to
take a test to determine his blood alcohol content when he was arrested for
driving under the influence of an intoxicant. A jury found him not guilty of
DUI while the trial judge, sitting without a jury, found that the defendant
violated the implied consent law when he refused to take a "breath test" and
revoked his license. Boyd appeals claiming the procedure required by Tenn. Code
Ann. § 55-10-406(3) violates the separation of powers clauses of the
Tennessee and United States constitutions because, he contends, it requires the
trial judge to serve as an administrative officer of the Tennessee Department
of Safety. Finding the issue was resolved in Goats v. State, 364 S.W.2d 889
(Tenn. Crim. App. 1963), which held that such a procedure did not violate the
separation of powers clauses, we affirm.
Citadel Investments v. White Fox Inc., f/k/a The
Jones Group, et al. - M2003-00741-COA-R3-CV
View
Sumner County -
This is an action on a promissory note against two stockholders of a now
insolvent closely-held corporation, who it is alleged, guaranteed payment of a
note owed by the corporation. The alleged guarantee arises out of a stock
purchase agreement. Liability hinges on the construction of the stock purchase
agreement and whether parol evidence is admissible. The trial court found the
agreement unambiguous and barred parol evidence. The defendants insist the
agreement is ambiguous and that evidence of negotiations leading up to the
execution of the agreement and the intent of the parties should have been
admitted. We find the agreement is ambiguous and therefore parol evidence
should have been considered. We also find that the defendants are entitled to a
new trial on the merits because they have been deprived of the substantial
right to introduce evidence of contract negotiations and the intent of the
parties at the time the Agreement was executed. We therefore vacate the
judgment and remand this matter for further proceedings consistent with this
opinion.
Earl A. Crow, III vs. Daniel R.
LeDoux, et al - E2004-01640-COA-R3-CV View
Anderson County -
Earl A. Crow, III, brought this action against his landlords, Daniel R. LeDoux
and wife, Katherine Marie LeDoux (collectively "the defendants"), for injuries
sustained by him in a fall caused by an allegedly defective heating grill in
his apartment. The defendants filed a motion for summary judgment, arguing,
inter alia, that the plaintiff's knowledge of the condition of the grill was at
least co-extensive with that of the defendants, and that, as a consequence of
this fact, no liability attached. The trial court agreed and granted the
defendants' motion. The plaintiff appeals. We vacate the trial court's grant of
summary judgment and remand for further proceedings.
State, Ex Rel. Debra Ogelsby vs. Mark Bridges -
E2004-01675-COA-R3-CV View
Knox County -
Debra L. Ogelsby ("Mother") and Mark D. Bridges ("Father") are the natural
parents of Holly Bridges ("the child"). By an order entered in 1986, Mother was
awarded custody of the child and Father was charged with a duty of support but
with no amount being set. In 1998, the child started living with Father. At
that time, Father, motivated by the fact the child was now living with him,
filed a petition to terminate his support obligation. His petition was granted.
In 1999, the child left Father and again took up residence with Mother. The
child was emancipated by marriage in 2000. In 2002, the State of Tennessee
("the State"), on behalf of Mother, brought this action seeking retroactive
child support for the period from 1999 through 2000. Father argues that the
trial court was prohibited from awarding retroactive child support prior to
June 11, 2002, the date upon which the State filed its petition. The trial
court held that Mother was entitled to retroactive child support since there
was no active order for child support in place at the time the petition was
filed. Father appeals. We affirm.
Carrie C.
Dowlen vs. Billy Weathers, et al - E2004-00857-COA-R3-CV
View
Hamilton County -
Carrie C. Dowlen ("the plaintiff") – a licensed real estate
"broker/salesperson" – while working as an independent contractor for
Re/Max Properties, LLC ("Re/Max"), a Chattanooga real estate broker, secured an
Exclusive Listing Agreement ("the Listing Agreement") on behalf of Re/Max to
sell or lease property owned by a husband and wife ("the owners"). The property
was later leased; however, the owners refused to pay the commission due under
the Listing Agreement. The plaintiff, in her individual name, brought suit
against the husband. During the pendency of that suit, the owners and Mr.
Weathers, acting on behalf of Re/Max, entered into an agreement, by the terms
of which the parties released each other from "any claim of liability or cause
of action of any kind stemming from [the Listing Agreement]." When the
plaintiff learned of the release and recognized its probable effect on her
"commission" lawsuit, she took a voluntary nonsuit as to her claim against the
husband; she then filed this suit for breach of contract and inducement of
breach of contract against Mr. Weathers and Re/Max. The trial court held that
the defendants, by executing the Release, induced the owners to breach the
Listing Agreement and, pursuant to the statute addressing damages for
inducement of breach of contract, the court then awarded the plaintiff three
times the amount of the commission due her. The trial court also granted the
plaintiff's request for her attorney's fees. The defendants appeal. We hold (1)
that, at the time the Release was executed, the real parties in interest with
respect to the commission due under the Listing Agreement were the owners and
the plaintiff; and (2) that, as to the commission, the defendants were nothing
more than a pass-through or conduit of the commission for the sole benefit of
the plaintiff. Accordingly, we affirm so much of the trial court's judgment as
holds that the defendants are liable to the plaintiff for inducement of breach
of contract. Finding no legal basis for an award of fees in this case, we
reverse the trial court's award of fees.
Cases posted the week of 05/09/2005
Kathy McPeak vs. Virginia Thomas -
E2004-00400-COA-R3-CV View
Hawkins County -
Defendant appealed from the Trial Court's Judgment in favor of plaintiff. On
appeal, appellant argues the Trial Court erred in ruling for appellee and
appellee should be estopped from gaining possession of the property in dispute.
We affirm.
Louis Roberts v. Mary
Roberts - M2004-00162-COA-R3-CV View
Davidson County -
This is an appeal by the former wife from the denial of her Tennessee Rule of
Civil Procedure 60.02 Motion to Strike or Modify a Marital Dissolution
Agreement relative to marital property. We modify and affirm the action of the
trial court.
Alliance for Native American
Indian Rights in Tennessee v. Gerald Nicely, et al. - M2002-02555-COA-R3-CV
View
Davidson County -
This appeal involves the effect of a highway improvement project on ancient
Native American graves. After discovering the graves during construction, the
Tennessee Department of Transportation filed petitions in the Chancery Courts
for Williamson and Davidson Counties seeking permission to disinter the remains
and reinter them in another location. Despite prevailing in protracted
litigation with Native American organizations and individuals, the Department
voluntarily dismissed both petitions after deciding to bury the remains in
place, to encapsulate them in reinforced concrete, and to continue construction
on top of the encapsulated graves. A Native American organization and several
Native American individuals filed this suit in the Chancery Court for Davidson
County asserting that the Department's actions violated their equal protection
and due process rights under the Fourteenth Amendment to the United States
Constitution. The trial court dismissed the complaint on the ground that it
failed to state a claim upon which relief could be granted, and the Native
American parties appealed. Construction continued while the appeal was pending
because the Native American parties failed to request the trial court or this
court to stay the construction during the appeal. Before oral argument in this
appeal, the Department completed the construction project, including the
reinterment of the remains and encapsulation of the graves in concrete. In
light of these later developments, we have determined that this appeal is now
moot and should be dismissed.
Raymond P.
White, et al. v. Hickman County - M2004-00232-COA-R3-CV
View
Hickman County -
In these consolidated cases, certain property owners in Hickman County,
Tennessee, challenged the way Hickman County imposed and administered solid
waste disposal fees, asserting the improper use of disposal fees to retire debt
incurred in closing a previous landfill and further asserting collection of
fees beyond what was necessary for the operation of the solid waste department.
Judge R.E. Lee Davies granted a partial summary judgment to the County, and
following trial on the merits on the remaining issue, Judge Timothy Easter
rendered judgment for Defendant, Hickman County. We affirm the actions of both
of the trial judges.
Barbara C.
Watts, et al vs. Randall Lovett, et al - E2004-00783-COA-R3-CV
View
Scott
County - In this appeal, the defendants argue that the trial court
erred in the amount of money it awarded the plaintiffs for damages incurred by
the plaintiffs when a truck owned by the defendants and operated by the
defendants' employee struck the plaintiffs' garage. The sole issue at trial was
the proper amount of damages the plaintiffs should receive for injuries to
their property. The plaintiffs introduced evidence showing that the market
value of their property as a whole - their residence, garage and acreage -
depreciated as a result of the fact that the color of brick necessary to
restore the garage to its original condition is no longer available.
Considering this evidence, the trial court awarded the plaintiffs a judgment in
the amount of $8,000.00. The defendants contend that the trial court erred in
its award and that the proper measure of damages should have been solely the
cost of repairing the garage, which the defendants' expert estimated to be
approximately $2,000.00. We affirm the judgment of the trial court and remand.
Rhonda Robinson vs. Russell
Robinson - W2003-01836-COA-R3-CV View
Shelby County -
This is a divorce case about dissipation of marital assets and custody.
Throughout the marriage, the wife took care of the children while the husband
provided financial support. The husband was the owner and operator of several
automobile businesses. After the wife filed for divorce, the husband's
automobile businesses failed, resulting in the husband's father purchasing the
businesses. After a lengthy trial, the trial court found that the husband
intentionally dissipated marital assets, including the automobile businesses.
The wife was designated the children's primary residential parent. The husband
appeals. We affirm, finding that the evidence supports the trial court's
finding that the husband dissipated the businesses by failing to preserve them,
and the designation of the wife as primary residential parent.
Franki Ann Rolen, et al vs. Wood Presbyterian Home -
E2004-00952-COA-R3-CV View
Monroe
County - This action involves claims brought regarding the decedent
Jewell Ingram against Wood Presbyterian Home, Inc., alleging that Ingram was
injured while in defendant's care, and also that her treatment by defendant
ultimately contributed to her death. Plaintiff proposed a jury form which asks
that the jury determine whether defendant was guilty of negligence which caused
Ingram's death, but also asked the jury to find whether defendant was guilty of
negligence which caused injury to Ingram. The jury form submitted by the Trial
Judge, however, asked whether defendant was at fault for the death of Ingram,
and directed that if the answer to that question was no, the jury should return
a verdict for defendant. The jury answered the question in the negative, and
announced a defendant's verdict. Plaintiff has appealed. We affirm the Trial
Court's Judgment for defendant as to the wrongful death claim, but remand for a
new trial on the issue of damages for injuries sustained prior to decedent's
death.
Charles W. Randolph, II vs. Eastman
Chemical - E2004-01231-COA-R3-CV View
Sullivan County -
Charles W. Randolph, II, ("Plaintiff") is an engineer employed by TesTex, Inc.
("TesTex"). Eastman Chemical Company ("Eastman" or "Defendant") entered into a
contract with TesTex for TesTex to conduct non-destructive electromagnetic
testing on heat exchangers located at Eastman's Kingsport facility. The testing
was to occur during a plant shutdown which lasts for twenty days and which
occurs every two years. Plaintiff was on Eastman's premises to conduct the
electromagnetic testing when he was injured while boarding an elevator.
Plaintiff filed a negligence lawsuit against Eastman. Eastman asserted that it
was Plaintiff's statutory employer pursuant to Tenn. Code Ann. § 50-6-113
and, therefore, Plaintiff was prohibited from filing a negligence claim because
of the exclusive remedy rule contained in the workers' compensation law. After
a trial, the Trial Court agreed with Eastman and held that Plaintiff's
negligence claim was barred. We affirm.
Jeanette Jenkins, et al vs. Billy Robertson -
E2004-0899-COA-R3-CV View
Sevier
County - Billy Gene Robertson ("Defendant") listed property for lease
with Jeanette Jenkins, the listing agent, and Eilene McInturff, the broker,
("Plaintiffs") of Realty World-Barnes Real Estate. Defendant signed a contract
agreeing to pay a 10% commission to the broker. Plaintiffs located a party who
leased Defendant's property. Defendant made some commission payments to
Plaintiffs, but then stopped making payments claiming, in part, that the time
period for making commission payments under the contract was unclear. Ms.
McInturff, as the broker, attempted to assign her rights under the contract to
Ms. Jenkins and Ms. Jenkins sued Defendant for the commissions. Defendant
objected that Ms. Jenkins did not have standing because she was not the broker.
The Trial Court allowed joinder of Ms. McInturff, and the case proceeded to
trial. After trial, the Trial Court entered an order holding, inter alia, that
Defendant owed Plaintiffs commissions over the life of the lease and also that
Plaintiffs were entitled to a judgment against Defendant in the amount of
$37,688.35, which included the award made on Plaintiffs' claim for commissions
owed to the date of the judgment, an award of attorney's fees, and an award of
discretionary costs. Defendant appeals. We affirm.
Lendel L. Conley vs. Jo Ann Conley -
E2004-01309-COA-R3-CV View
Concur -View
Bledsoe County - In
this divorce case, the wife raises the issues of whether the trial court erred
in ruling it had jurisdiction based on the husband's domicile in Bledsoe
County, Tennessee; whether the trial judge erred in refusing to recuse himself
from the trial of the case; and whether the court erred by failing to equitably
divide the marital estate. The husband argues on appeal that the trial court
should have classified certain assets that it held to be marital property as
his separate property. We modify the division of marital property to increase
the amount awarded to the wife, and affirm the court's judgment in all other
respects.
Cases posted the week of 05/02/2005
Niccole Naifeh vs. Valley Forge Life Ins. -
W2003-02800-COA-R3-CV View
Tipton County - This
appeal arises out of the interpretation of a life insurance contract. The trial
court determined that the Decedent's life insurance policy was in effect and
had not lapsed due to Decedent's failure to pay the premium due in January
2000. It ordered Valley Forge Life Insurance Company to pay the sum of
$1,000,000.00 to Cathy Naifeh plus prejudgment interest of 8% per annum
beginning on June 1, 2000. The lower court dismissed Valley Forge Life
Insurance Company's counterclaim against William McGowan, Jr. and Bill McGowan
& Company. Further, it dismissed the claim of Decedent's estate and Cathy
Naifeh against Bill McGowan, Jr. and Bill McGowan & Company for negligent
misrepresentation and their claims against Union Planters Bank. Finally, it
dismissed the claims of Decedent's estate and Cathy Naifeh against Union
Planters Bank, William McGowan, and Valley Forge Life Insurance Company for
violations of the Tennessee Consumer Protection Act. Valley Forge Life
Insurance Company now seeks review by this Court. For the following reasons, we
affirm in part, reverse in part, and remand for further proceedings consistent
with this opinion.
In Re Adoption of
John A. Kleshinski & Kevin Kleshinski/Chirlena Kleshinski & John E.
Kleshinski v. Julia Kleshinski - M2004-00986-COA-R3-CV
View
Concur - View
Lincoln County -
This is a termination of parental rights case. The mother and father were
married, and two sons were born during the marriage. The father physically
abused the mother during the marriage. In 1996, the parties divorced. Later in
1996, a consent order was entered giving the father custody of the children.
The order did not require the mother to pay child support. Both parties
remarried, and the mother moved to Alabama. The mother exercised visitation
with the children until the early part of 1999. Around that time, the mother
stopped visiting the children entirely. The father claimed that he did not know
why the mother stopped visiting, and the mother said that the father and his
new wife threatened her with physical harm if she attempted to see her sons.
About four and a half years after the mother's last attempt to visit with the
children, the father and his new wife filed this petition to terminate the
mother's parental rights and to permit the father's new wife to adopt the
children. The father and his new wife asserted that the mother had abandoned
the children by willfully failing to support or visit them. The trial court
terminated the mother's parental rights but declined to permit the adoption at
that time. The mother now appeals. We reverse the finding of the willful
failure to support and affirm the finding of willful failure to visit. However,
we vacate the termination of parental rights on the basis that the trial court
failed to make specific written findings regarding the best interest of the
children, and remand for further proceedings on this issue.
Joyce Nipper v. Axtrom Industries, et al. -
M2005-00349-COA-R10-CV View
Trousdale County -
This products liability action involves the explosion of a pepper spray
product. The purchaser filed suit in the Circuit Court for Trousdale County
against the product's manufacturer and the store that sold her the product.
After the manufacturer filed an amended answer asserting comparative fault of
the manufacturer of one of the product's component parts, the plaintiff filed
an amended complaint naming the component's manufacturer as an additional
defendant. However, the plaintiff failed to cause a summons to be issued until
more than ninety days after the filing of the amended answer. The component's
manufacturer moved to dismiss the amended complaint because the summons had not
been timely issued in accordance with Tenn. Code Ann. § 20-1-119 (Supp.
2004). After the trial court denied its motion, the component's manufacturer
filed an application for a Tenn. R. App. P. 10 appeal. We have determined that
the trial court departed from the accepted and usual course of judicial
proceedings. Accordingly, we grant the component part's manufacturer's
application for an extraordinary appeal and vacate the trial court's order
denying its motion to dismiss.
Martha
Hallowell vs. Vestco Inc. - W2004-01322-COA-R3-CV
View
Henderson
County - Appellant was asked to leave her job after she failed to
comply with an order from her supervisor to comply with the dress code.
Appellant was denied unemployment benefits because of work-related misconduct
which was affirmed by the Board of Review. Appellant filed a Petition for
Judicial Review in the chancery court. The chancery court affirmed the Board of
Review and Appellant appeals. We affirm.
Tennessee Division United Daughters of the Confederacy v.
Vanderbilt University - M2003-02632-COA-R3-CV View
Concur -
View
Davidson County -
This appeal involves a dispute stemming from a private university's decision to
change the name of one of its dormitories. An organization that donated part of
the funds used to construct the dormitory filed suit in the Chancery Court for
Davidson County asserting that the university's decision to rename the
dormitory breached its seventy-year-old agreement with the university and
requesting declaratory and injunctive relief and damages. Both the university
and the donor filed motions for summary judgment. The trial court, granting the
university's motion, determined that the university should be permitted to
modify the parties' agreement regarding the dormitory's name because it would
be "impractical and unduly burdensome" to require the university to continue to
honor the agreement. The donor organization appealed. We have determined that
the summary judgment must be reversed because the university has failed to
demonstrate that it is entitled to a judgment as a matter of law. Furthermore,
based on the essentially undisputed facts, we have determined that the donor is
entitled to a partial summary judgment because the university has breached the
conditions placed on the donor's gift and, therefore, that the university
should be required to return the present value of the gift to the donor if it
insists on renaming the dormitory.
Vanessa
Sircy v. Nashville and Davidson County - M2004-00405-COA-R3-CV
View
Davidson County -
This is a breach of contract action involving employment with a government
municipality. In this case, the defendant municipality offered the plaintiff a
job as a dispatcher at an annual salary of approximately $30,000, and the
plaintiff accepted the position. Meanwhile, the defendant underwent job
reclassifications and salary restructuring. On the second day of the
plaintiff's employment with the defendant, she was informed that she would be
paid an annual salary of approximately $24,000. After working for approximately
five and one-half months for the defendant, the plaintiff resigned, citing the
uncertainty regarding whether the defendant would adjust her salary, as they
had suggested. Following her resignation, the plaintiff brought this action.
Following a bench trial, the trial court determined that the defendant had made
promises of employment at a certain salary that induced the plaintiff to resign
her position at her former employment, and the defendant had breached those
promises. As a result, the trial court found that the plaintiff had suffered
damages in the amount of $16,500. The defendant has appealed the judgment of
the trial court. Because we conclude that the trial court erroneously
calculated damages, we modify the judgment of the trial court.
Patsy Oakley vs. James Oakley -
W2004-00344-COA-R3-CV View
Shelby County -
This is a divorce case about division of marital assets, on appeal for the
second time. Initially, the trial court divided the marital assets by granting
each party approximately half. The husband appealed, arguing, inter alia, that
the wife should not receive a share of his separately owned business or a share
of the appreciation in value of his separately owned securities. This Court
held that the wife was not entitled to a share of the appreciation in value of
the husband's separately owned securities. As to the business, this Court held
that the wife was entitled only to a share of any appreciation in its value,
and remanded to the lower court for a determination of the amount of any such
appreciation in the value of the business. On remand, the trial court
eliminated the wife's award of a share of the increase in value of the
securities, as ordered by this Court, and found that there was no evidence of
any increase in the value of the business. No other changes were made to the
division of marital property, with the result being that the wife's award,
while smaller in value, was proportionally larger than the husband's award. The
husband appealed a second time, arguing that this new division was inequitable.
We affirm.
Donald Moore v. Board of
Probation and Parole - M2003-03110-COA-R3-CV
View
Davidson County -
Following a hearing in October of 2000, three out of seven members of the Board
of Paroles voted to parole a prisoner who was serving a life sentence for
murder. Because of a 1997 statute that requires four members of the Board to
concur on the parole of prisoners convicted of certain grave offenses, parole
was denied. The prisoner did not seek review of that decision. Parole was again
denied after a March 2003 hearing, with only two Board members voting for
parole. The prisoner filed a petition for common law writ of certiorari,
contending that the Board's refusal to release him after the 2000 Board vote
violated the constitutional prohibition against ex post facto enactments. He
argued that he was entitled to the benefit of an earlier statute which allowed
prisoners to be paroled, regardless of offense, if they could obtain the
positive votes of three members of the Board. The trial court dismissed the
petition, holding that it was untimely, and that in any case, the application
of the 1997 statute did not implicate any ex post facto concerns. We affirm the
trial court.
Robert Bean, et al. v. Phil
Bredesen, et al. - M2003-01665-COA-R3-CV View
Davidson County - This
is the third appeal in a long-running dispute involving the constitutionality
of Tennessee's statutory ban on the private possession of white-tailed deer.
Persons challenging the ban filed suit in the Chancery Court for Davidson
County asserting that the statutes regulating the possession of exotic animals
unlawfully delegated legislative authority to the Tennessee Wildlife Resources
Agency, were vague and overbroad, and violated the Commerce Clause of the
United States Constitution. Both the trial court and this court initially
determined that the statutes unlawfully delegated legislative authority to the
Tennessee Wildlife Resources Agency. After the Tennessee Supreme Court reversed
these decisions in Bean v. McWherter, 953 S.W.2d 197 (Tenn. 1997), the trial
court granted the defendants' motion for summary judgment on the vagueness and
overbreadth and the Commerce Clause claims. We reversed the dismissal of the
Commerce Clause claim and remanded the case for a hearing on whether the
statutory ban on the private possession of white-tailed deer placed an undue
burden on interstate commerce. Bean v. McWherter, 24 S.W.3d 325 (Tenn. Ct. App.
1999). Following another hearing, the trial court concluded that the ban did
not place an undue burden on interstate commerce. The plaintiffs have appealed.
We have determined that the evidence supports the trial court's conclusion that
Tennessee's interest in protecting its indigenous white-tailed deer population
outweighs the statutory ban's effect on interstate commerce. Accordingly, we
affirm the judgment.
Jerry D. Carmack, et
al. v. Tina M. Earp, et al. - M2003-03100-COA-R3-CV
View
Sumner County -
Property owners filed suit against neighbors for trespass. Trial court entered
judgment for plaintiffs in the amount of $13,740, applying the "mild rule" for
calculation of damages for trespass. Trial court also made rulings establishing
the boundary lines between property of plaintiffs and defendants, and confirmed
the plaintiffs' continuing right of ingress and egress through defendant's
property to their own property. On appeal, plaintiffs contend that trial court
erred in failing to award damages based on "harsh rule" rather than mild rule;
in failing to find that the boundary lines were in keeping with plaintiffs'
expert's survey; and in granting summary judgment to defendant water utility
district. We conclude that the trial court erred in granting summary judgment
to the water utility district. In all other respects, we affirm.
Luvell Glanton v. Bob Parks Realty, et al. -
M2003-01144-COA-R3-CV View
Williamson County -
The plaintiff purchased a house that was marketed by the defendant realtors.
The house had been described as including over 5,800 square feet of living
space. After the purchase, the plaintiff discovered that the actual square
footage of the house was considerably less, depending on what was included. He
sued for unfair or deceptive practices under the Tennessee Consumer Protection
Act and for intentional misrepresentation. The trial court dismissed his
complaint on summary judgment, and ordered the plaintiff to pay all the
defendants' attorney fees. We affirm the dismissal, but modify the award of
attorney fees.
Dorothy Tucker v. Sierra
Builders, et al. - M2003-02372-COA-R3-CV View
Dissent - View
Wilson County - This
appeal involves a dispute stemming from the shoddy construction of a modular
house. The property owner filed suit in the Circuit Court for Wilson County
against the contractor who constructed the house and the manufacturer of the
house modules. The trial court granted a default judgment against the
contractor and, following a bench trial, awarded the homeowner a $49,506.94
judgment against the manufacturer. The manufacturer has appealed. We have
determined that the trial court erred when it held that the manufacturer
engaged in unfair or deceptive trade practices in violation of the Tennessee
Consumer Protection Act and that the manufacturer was vicariously liable for
the negligence of the contractor.
In Re: W.B. IV
- M2004-00999-COA-R3-PT & In Re: D.D., M.H., W.B. IV -
M2004-01572-COA-R3-PT View
Williamson County - In
a single proceeding, the juvenile court terminated the parental rights of a
mother to her three children and the parental rights of the father of one of
those children, ruling that they had abandoned the children. The mother and the
father filed separate appeals, which we have consolidated for decision. We
reverse because the proof at trial did not rise to the level required to
establish abandonment as defined by applicable statutes.
Cases posted the week of 04/25/2005
William Terrell, et ux vs. United Van
Lines - E2004-00407-COA-R3-CV View
Concur - View
Knox County - The
Trial Court entered Judgment for plaintiffs for damages, but refused to permit
plaintiffs to amend the complaint to claim defendants violated the Consumer
Protection Act, and disallowed plaintiffs' Rule 11, Tenn. R. Civ. P. Motion for
Sanctions. On appeal, we affirm.
Wylie
Steel Fabricators v. Ruth E. Johnson - M2003-02482-COA-R3-CV
View
Davidson
County - This appeal involves a sales and use tax assessment issued by
the Tennessee Department of Revenue against a taxpayer engaged in the business
of fabricating steel products for use in various structures. The taxpayer
obtained purchase orders from three churches for raw materials to be used in
the fabrication of steel products which were to be incorporated into the
churches then under construction. The taxpayer secured the raw materials,
fabricated the steel products, and installed them in the churches. The taxpayer
did not pay sales or use tax on any of the raw materials used in the
fabrication process. The department subsequently audited the taxpayer and
assessed a tax liability for taxes owed on the materials. The taxpayer paid the
amount assessed and filed suit in the chancery court to contest the assessment.
Specifically, the taxpayer asserted that it was entitled to an exemption under
section 67-6-209(b) of the Tennessee Code. After both parties filed
cross-motions for summary judgment, the chancery court granted the department's
motion and denied the taxpayer's motion. We affirm in part, reverse in part,
and remand this case to the trial court for further proceedings consistent with
this opinion.
Darrell Massingale vs. Yung
Gil Lee, et al - E2004-01364-COA-R3-CV View
McMinn County -
During surgery to repair a bilateral hernia, Yung Gil Lee, M.D. ("Defendant")
also performed an orchiectomy and removed Darrell Massingale's ("Plaintiff")
left testicle. Plaintiff sued Defendant claiming, in part, that Defendant had
committed both medical malpractice and medical battery. The Trial Court granted
Defendant's motion for a directed verdict on the claim of medical battery. The
claim of medical malpractice went to the jury and resulted in a mistrial. The
Trial Court then reconsidered Defendant's motion for a directed verdict on the
claim of medical malpractice and entered an order granting a directed verdict
on that claim as well and dismissing the case. Plaintiff appeals claiming that
the Trial Court erred in directing a verdict as to both the medical battery
claim and the medical malpractice claim. We affirm the directed verdict on the
medical malpractice claim, reverse the directed verdict on the medical battery
claim, and remand for a new trial on Plaintiff's medical battery claim.
Rick Kyle vs. Earl Williams, et al -
E2004-00599-COA-R3-CV View
Monroe
County - Rick Kyle ("the plaintiff"), a contractor, entered into a
contract with Earl Williams and his wife, Michelle Williams (collectively "the
defendants") to build them a house. When the house was approximately 90%
complete, a basement wall collapsed. The plaintiff proposed a plan to remedy
the problem. The defendants rejected the plaintiff's plan and hired a new
contractor to complete the construction. The plaintiff brought this action for
breach of contract. The defendants responded with an answer, and coupled it
with a counterclaim seeking their costs incurred in connection with the
completion of the project. The defendants raised as an affirmative defense that
the contractor was not licensed during all of the time he was working on the
house. On interlocutory appeal to the Supreme Court, that court held that the
plaintiff was "unlicensed" under the provisions of Tenn. Code Ann. §
62-6-103(b) and was therefore only entitled to recover his "actual documented
expenses" under that statute. Following remand, the trial court, at a bench
trial, awarded the plaintiff his "actual documented expenses," less monies
already paid to him by the defendants. It also awarded the defendants the
expenses incurred by them as a result of the collapse of the wall. The
plaintiff appeals. We affirm.
J. Stephen
Amison, et al vs. Jack McCarty, et al - E2004-00955-COA-R3-CV
View
Bradley County -
J. Stephen Amison and wife, Pamela G. Amison ("the plaintiffs"), purchased a
house from Jack D. McCarty and wife, Bertha B. McCarty ("the defendants").
Thereafter, the plaintiffs sued the defendants for damages and, in the
alternative, for rescission of the contract of purchase. The plaintiffs alleged
that, unbeknownst to them when the contract was signed and when the sale
subsequently was closed, the house was infested with termites; that the
defendants had prior knowledge of the termite infestation; and that the
defendants intentionally or negligently misrepresented the true condition of
the house. Following a bench trial, the court decreed rescission, awarded the
plaintiffs discretionary costs, and denied the plaintiffs' request for their
attorney's fees. Both sides raise issue on appeal. We affirm.
Lee Ketchersid vs. Rhea County Bd of Ed. -
E2004-00153-COA-R3-CV View
Rhea County -
Lee Ketchersid, a tenured teacher in the Rhea County School System, appealed
her dismissal to the Rhea County Board of Education ("the School Board").
Following a hearing, the School Board determined that the evidence supported
the charges against Mrs. Ketchersid of insubordination, incompetence, and
inefficiency under the Teachers' Tenure Act, Tenn. Code Ann. § 49-5-501,
et seq., and voted to terminate Mrs. Ketchersid as a tenured teacher. Mrs.
Ketchersid appealed the School Board's decision to the trial court, which,
following a de novo review, held that her dismissal was supported by sufficient
evidence. Mrs. Ketchersid appeals, arguing that the trial court erred in this
determination. We affirm.
Walker Gray
Haun vs. Louis Eugene Haun- E2004-01895-COA-R3-CV
View
Blount County
- This appeal involves a dispute between two brothers over the use of a roadway
that lies on their adjacent tracts of property. The issue presented is whether
Walker Gray Haun has an easement across the property of his brother, Louis
Eugene Haun, Jr. The trial court granted Walker Gray Haun an easement either by
prescription or by implication which allowed him to use the roadway that had
existed for at least fifty years and provided the only vehicular access to a
rental house on his property. We hold that Walker Gray Haun did not establish a
prescriptive easement, but that his proof satisfied the elements of an easement
by implication, and therefore we affirm the trial court's judgment.
Stephanie Troglen vs. Vincent Troglen -
E2004-00912-COA-R3-CV View
Hamilton
County - The issues presented in this divorce case are whether the
trial court erred in calculating Mr. Troglen's child support obligation; and
whether the trial court erred in awarding Ms. Troglen transitional alimony. The
trial court established Mr. Troglen's monthly child support obligation at $755.
Additionally, the trial court ordered Mr. Troglen to pay to Ms. Troglen
transitional alimony in the amount of $400 per month for a period of five
years. We hold that the child support was properly calculated at $755 per month
and that the trial court properly awarded Ms. Troglen alimony. However, we
modify the alimony award from $400 per month transitional alimony for five
years to $400 per month rehabilitative alimony for five years.
In Re: Estate of Lewis F. Rhoades -
E2003-03094-COA-R3-CV View
Hamblen County -
Donald L. Rhoades ("the Executor") filed to probate the will of Lewis F.
Rhoades ("the Testator"). The Testator was survived by three children –
the Executor, Geraldine Miller, and Bonnie Matthews Turner. Shortly after the
death of the Testator in 1999, the Executor "informally" distributed the
Testator's property by dividing the proceeds from a certificate of deposit held
jointly in the names of the Executor and the Testator, and by dividing the
balance in a checking account held jointly by the Testator and his two
daughters. Title to both assets was held in the joint names indicated with
"right of survivorship." It was not until 2003 that the Executor offered the
Testator's will for probate. At that time, he also sought a declaration as to
the ownership of the certificate of deposit and the checking account, and
further asked the court to order that the previously-distributed proceeds from
these assets be returned to the estate. The trial court held that the proceeds
could not be recovered since the certificate passed to the Executor in his
individual capacity outside of probate. As for the checking account, the trial
court ordered that the distributed proceeds be returned to the estate to
satisfy the claims of creditors. The Executor appeals. We agree with the trial
court that the certificate of deposit passed by operation of law to the
Executor in his individual capacity and, hence, passed outside of probate.
Consequently, the proceeds previously distributed by the Executor could not be
recouped in the probate court proceedings. However, we disagree with the trial
court's judgment that the checking account proceeds should be returned to the
estate, as we hold that this account also passed by operation of law to the
joint owners of the account and, consequently, cannot be returned to the estate
of which it was never a part. Accordingly, we affirm in part and reverse in
part.
Jay B. Wells, Sr., et al vs.
State - E2004-02345-COA-R3-CV View
This case is an outgrowth of separate
litigation filed in federal court by the claimants here – Jay B. Wells,
Sr., for himself and on behalf of others similarly situated – Knox County
property owners and/or residents in a certain area of the county. In the
federal court action, the cl