The following Opinions are available for download:
Cases posted the week of 09/27/2004
Dolores McNabb vs. Cheryl Gray - E2003-02674-COA-R3-CV View
McMinn County - In these consolidated cases, the basic
issue for resolution is whether a warranty deed from Dolores E. McNabb
(“the Grantor”) to Cheryl L. Gray and Joseph R. Evans,
III (“the Grantees”), should be set aside. The trial court
set the deed aside. The Grantees appeal. We affirm.
Rosetta Willis vs. Mike Settle - W2004-00636-COA-R3-CV View
Madison County - This is an appeal from a judgment
entered on a jury verdict for Plaintiff/Appellee. Plaintiff/Appellee
was taken hostage by a prisoner who escaped from the control and custody
of Defendant/Appellant, a private corporation contracting with the
State of Tennessee to provide prison security. Defendant/Appellant
asserts that it is entitled to immunity under the Public Duty Doctrine,
that there was no material evidence on which the jury could have based
its verdict, that the award of compensatory damages was excessive and
not supported by the evidence, that Defendant/Appellant cannot be held
responsible for the actions of its employees under the doctrine of
respondeat superior, and that the trial court erred in not granting
a mistrial. We affirm.
John Allen vs. Quenton White - W2004-00457-COA-R3-CV View
Lake County - This appeal concerns the dismissal of
a common law writ of certiorari by the Circuit Court of Lake County.
Appellant, an inmate in the custody of the Tennessee Department of
Correction, filed a pro se Petition for Writ of Certiorari to challenge
the results of a prison disciplinary proceeding instituted against
him. The trial court granted Appellee’s motion to dismiss the
petition as untimely filed in violation of the applicable statute of
limitations. For the reasons stated below, we affirm the decision of
the trial court.
Shirley Gilliam v. Michael Derrick -
W2003-01353-COA-R3-CV View
Shelby County - This is a wrongful death action. The
plaintiff’s decedent was riding as a passenger in a car driven
by the defendant’s decedent. The car collided at a high rate
of speed into the guard rail of a bridge. Both the driver and the passenger
died in the accident. It was later determined that the driver was intoxicated,
but that the passenger had not been drinking. The plaintiff, the mother
of the passenger, filed this wrongful death action against the estate
of the driver, alleging that the driver’s negligent conduct caused
the death of her son. After a jury trial, the jury returned a verdict
in favor of the defendant. The jury concluded that the passenger was
50% at fault for his demise, because the passenger knew or should have
known that the driver was intoxicated when he got into the car. The
plaintiff now appeals. We reverse, finding no material evidence to
support the jury’s conclusion that the passenger knew or should
have known that the driver was intoxicated.
Shari Morrow vs. Fay Jones - W2002-01088-COA-R3-CV View
Shelby County - Plaintiff/Buyer brought a cause of
action alleging breach of a real estate contract and seeking specific
performance. The trial court entered judgment for Defendant/Seller.
We affirm in part, modify in part, and remand.
In the Matter Of: C.E.P. - E2003-02410-COA-R3-PT View
Anderson County - This is an adoption case in which
the petitioners seek to terminate the parental rights of the biological
father of C.E.P. (“the child”). A.E.P. (“Mother”),
the biological mother and custodian of the child, joined her husband,
M.P.P. (“Stepfather”), in petitioning the trial court to
terminate the parental rights of D.L.K. (“Father”), as
an adjunct to Stepfather’s petition to adopt the child. The trial
court granted the petitioners’ motion for summary judgment and
terminated Father’s parental rights on the basis of his incarceration.
On Father’s initial appeal, we affirmed the finding of grounds
for termination, but vacated the trial court’s best interest
finding. On remand, the trial court conducted a hearing and found that
termination of Father’s parental rights was in the best interest
of the child. Father appeals. We reverse and dismiss.
In Re: Estate of Barsha Ella Royston -
E2004-00963-COA-R3-CV View
Sullivan County - Appellant has appealed before final
judgment was entered. We dismiss the appeal.
James H. Sibley vs. Keith McCord - E2003-01324-COA-R3-CV View
Knox County - Plaintiffs, former clients of Keith
McCord, Weaver & Troutman, P.C., seek an accounting, recovery of
misappropriated funds, if any, and compensatory damages. Plaintiffs
hired McCord and his firm to represent them in defense of federal and
state tax claims and deposited upwards of $500,000 with the firm to
facilitate payment of the disputed claims. The chancellor dismissed
the action on summary judgment holding that the plaintiffs’ conversion
claim was barred by the three year statute of limitations and that
the claim for an accounting was barred by the doctrine of judicial
estoppel. We affirm.
Patrick Beaudreau vs. Larry Hill Pontiac -
E2003-00440-COA-R3-CV View
Sevier County - This is a class action lawsuit filed
by a consumer, Patrick Beaudreau, against a car dealer, Larry Hill
Pontiac/Oldsmobile/GMC, Inc. (“Hill Pontiac”). Beaudreau
purchased an automobile from Hill Pontiac and the purchase was financed
through General Motors Acceptance Corporation (“GMAC”).
Beaudreau alleges, inter alia, that Hill Pontiac violated the Tennessee
Consumer Protection Act (“the TCPA”) and the Tennessee
Trade Practices Act (“the TTPA”) in that it failed to reveal
to Beaudreau that it had an arrangement with GMAC by the terms of which
Hill Pontiac received a portion of the interest rate charged to Beaudreau.
The trial court dismissed Beaudreau’s claims. Beaudreau appeals.
We affirm.
Bobby Green vs. Johnxon City Regional Planning -
E2003-02509-COA-R3-CV View
Washington County - Bobby MacBryan Green (“Plaintiff”)
and Michael May (“May”) own adjoining land within the city
limits of Johnson City. May’s tract of land was subdivided into
two lots as a minor subdivision without formal approval from the Johnson
City Regional Planning Commission (the “Commission”). Plaintiff
challenged the approval of the minor subdivision before the Commission.
Relying on legal advice from the city attorney, the Commission voted
unanimously not to take any action on Plaintiff’s request that
the approval of the minor subdivision be rescinded. Plaintiff appealed
to the Trial Court which upheld the decision of the Commission after
concluding the Commission’s refusal to take any action on Plaintiff’s
request was not illegal, arbitrary or capricious. We affirm.
Mark Davis v. Tonya Davis - M2003-02312-COA-R3-CV View
Lawrence County - This appeal concerns a dispute over
the custody of a child who is less than three years old. Within four
months after the parents’ divorce in the Chancery Court for Lawrence
County, the father filed a petition to modify the permanent parenting
plan because the mother was obstructing and discouraging his visitation
with the child. Following a bench trial, the trial court determined
that the wife’s post-divorce conduct amounted to a material change
in circumstances and that the parents should have equal parenting time
with the child. The trial court also relieved the father of his child
support obligation in light of the change in the permanent parenting
plan. The mother has appealed both the change in the permanent parenting
plan and the termination of her child support. We affirm the trial
court.
Thomas Sallee v. Tyler Barrett - M2003-01893-COA-R3-CV View
Montgomery County - Plaintiff/Appellant sued Defendant/Appellee,
a police officer with the City of Clarksville, for negligent infliction
of emotional distress, stemming from Defendant/Appellee’s negligent
discharge of his firearm. Pursuant to the provisions of T.C.A. §29-20-205(2),
the trial court granted the Defendant/Appellee’s Tenn. R. Civ.
P. 12 Motion to Dismiss. Plaintiff/Appellant appeals. We reverse and
remand.
Consolidated Pipe & Supply vs. Deer Path
Vacations - E2003-02787-COA-R3-CV View
Sevier County - Consolidated Pipe & Supply Company,
Inc. (“the Lienor”) contracted with Stetson & Associates
of Tennessee, Inc. (“the Debtor”) to furnish pipe in connection
with the Debtor’s construction activities on a subdivision being
developed by Deer Path Vacations, Inc. (“the Owner”). The
Debtor failed to pay for the pipe furnished by the Lienor. Subsequently,
the Debtor and the Owner filed separate petitions in bankruptcy court
seeking relief under the Bankruptcy Code (“the Code”).
The Lienor served notice of its lien claim on the Owner. Thereafter,
the Lienor filed suit on its lien claim against the Owner and First
Tennessee Bank National Association and J. Michael Winchester, Trustee
(collectively “the Bank”). The Bank moved to dismiss the
Lienor’s suit on the basis that the suit was not timely filed.
The trial court dismissed the Lienor’s complaint, finding that
the Lienor “fail[ed] to timely enforce [its] lien.” The
Lienor appeals. We affirm.
Raymond Rutter vs. H. Greeley Wells, Jr. -
E2003-02741-COA-R3-CV View
Sullivan County - This case was brought under the
Tennessee Public Records Act, Tenn. Code Ann. § 10-7-501, et seq.
(1999 and Supp. 2003) (“the Act”). The trial court granted
the respondent’s motion to dismiss because it found that the
petitioner, a prisoner in state custody, had failed to comply with
the court’s earlier order requiring the petitioner “to
identify the exact documents to be copied.” The petitioner appeals.
We vacate the trial court’s judgment and remand for further proceedings.
Marie Elbell vs. CharlesElbell - E2003-03017-COA-R3-CV View
Knox County - This is a divorce case. Following a
bench trial, the court below granted a divorce to Marie F. Oglesby
Elbell (“Wife”) and Charles Luther Elbell (“Husband”),
and divided their marital property. Husband appeals the trial court’s
division of marital property, in particular the allocation of several
rental properties which served, during the parties’ marriage,
as their primary source of income. We affirm.
Cases posted the week of 09/20/2004
Anna Mae Puckett vs. Life Care of America -
E2004-00803-COA-R3-CV View
Hamblen County - This is a wrongful death action against
a nursing home which was filed one year from the date of the patient's
death. The Defendant nursing home filed a Tennessee Rule of Civil Procedure
12.02(6) motion requesting the Court to dismiss Plaintiff's claim for
injuries suffered by Plaintiff, prior to her death on or about October
18, 2000, as same was barred by the one-year statute of limitations,
Tenn. Code Ann.§28-3-104(a)(1). The Plaintiff responded by affidavit
that suit was filed within one year of the discovery of the injury.
The trial court granted the Defendant's motion to dismiss. On appeal,
Plaintiff argued that the discovery rule applies, that the complaint
was timely filed and that the trial court erred in granting the dismissal
of Plaintiff's claims. We agree, vacate the dismissal and remand for
further proceedings.
Charles Ayrhart v. Dewel Scruggs - M2003-00453-COA-R9-CV View
Sumner County - This is an interlocutory appeal of
the trial court's refusal to grant a summary judgment to the defendants
in a negligence case. We find that the defendants have not affirmatively
negated an element of this negligence claim and that reasonable minds
could differ on the allocation of fault between the parties. Consequently,
the defendant is not entitled to judgment as a matter of law. We therefore
agree with the trial court and affirm the denial of summary judgment.
Carl Shockley v. Joseph Crosby - M2003-00794-COA-R3-CV View
Van Buren County - This appeal arises from a claim
filed in Van Buren County Circuit Court alleging breach of contract,
outrageous conduct, and assault. At the close of the plaintiff's proof,
the trial court granted the defendants' motion for a directed verdict
on the outrageous conduct claim. At the close of all the proof, the
trial court granted the plaintiff's motion for a directed verdict on
the breach of contract claim, and the parties then stipulated that
the assault had occurred. The case went to the jury for consideration
of the damages resulting from the breach and the assault. The jury
returned a verdict of $57,500 for the breach of contract and specifically
found that the assault did not cause injury to Carl Shockley for which
compensatory damages should be awarded. Nonetheless the jury did find
that Joseph Crosby acted in such a way that punitive damages should
be awarded. The trial court refused to submit the punitive damages
issue to the jury and granted a remittitur of $7,500 on the contract
claim. Both parties appeal. We affirm the judgment of the trial court.
State ex rel. Paul Summers & Milton Hamilton,
Jr. v. B&H Investments, Charles Smith & AlvinPierce - M2003-01640-COA-R3-CV View
Davidson County - Charles Ayrhartl v. Dewel Scruggs
- M2003-00453-COA-R9-CV Carl Shockley v. Joseph F. Crosby- M2003-00794-COA-R3-CV
State ex rel. Paul Summers & Milton Hamilton, Jr. v. B&H Investments,
Charles Smith & AlvinPierce - M2003-01640-COA-R3-CV
In Re: T.A.R. and D.F.R. - M2003-02801-COA-R3-PT View
Davidson County - The trial court terminated the parental
rights of both Mother and Father, and both appealed. Because statutory
grounds were proved by clear and convincing evidence and it was also
shown by clear and convincing evidence that termination of parental
rights was in the best interest of the children, we affirm the decision
of the trial court.
Deborah Smith v. Steven Smith - M2003-02242-COA-R3-CV View
Sumner County - Wife appeals the trial court's distribution
of marital property as inequitable in view of her contribution to the
acquisition of the only significant asset, the marital home. The trial
court clearly recognized that without Wife's contribution from her
separate property, the parties would have been unable to buy the house.
We modify the trial court's award of the equity in the house and affirm
as modified.
Sylvester Young v. Bank One - M2003-01359-COA-R3-CV View
Davidson County - The Trial Court awarded possession
to purchaser of property at foreclosure sale and dismissed possessor's
action to rescind foreclosure. On appeal, we affirm.
In Re Estate of Dillard Phiilips, Lery
Phillips vs. Cora Chitwood - E2004-00116-COA-R3-CV View
Scott County - In this action to contest a Will, the
Trial Court granted proponent summary judgment. On appeal, we vacate
and remand.
Michaela Babb v. Hamilton County Board of Education -
E2004-00782-COA-R3-CV View
Hamilton County - This is a suit brought by a school
teacher against the Hamilton County Board of Education under the Tennessee
Governmental Tort Liability Act wherein the teacher alleges negligence
on the part of the Board of Education as a result of an assault on
her by a student who was re-enrolled in school and re-placed in her
classroom despite the fact the student had assaulted her the previous
month and been suspended from school. The trial court granted the Board
of Education's motion for summary judgment. We hold that the decision
to place the student back in the teacher's classroom, despite the previous
assault, was a discretionary action for which the Board of Education
was immune from liability. Accordingly, we affirm and remand to the
trial court.
Sheila Frazier v. Lewis County Beer Board -
M2003-01496-COA-R3-CV View
Lewis County - This appeal involves a dispute between
the owners of a convenience store and the Lewis County Beer Board over
a permit to sell beer. After the Beer Board denied their application
because their store was within two thousand feet of a church, the owners
filed a petition for review in the Chancery Court for Lewis County
asserting that the Beer Board was selectively enforcing its distance
rule. The owners appealed after the trial court granted the Beer Board's
motion to dismiss. We have determined that this appeal is now moot
because the persons applying for the permit sold the store while this
appeal was pending.
In Re: P.M. - M2004-00845-COA-R3-PT View
Williamson County - Father appeals termination of
his parental rights. Father conceded and the juvenile court found that
grounds exist for termination of Father's parental rights. The juvenile
court also found that termination of Father's parental rights was in
the child's best interest. Father appeals the finding that termination
was in the child's best interest. We affirm.
In the Matter of: J.J.D., O.J.S., A.L.S. and C.M.S. -
M2003-02243-COA-R3-PT View
Cannon County - Because of questions regarding the
trial court's denial of appointed counsel in this proceeding that resulted
in the termination of parental rights, the Department of Children's
Services has acknowledged that the trial court's judgment must be vacated.
We agree.
Jaxie Jones v. Joe Crumley, Jr. - E2003-01598-COA-R3-CV View
Johnson County - Jaxie Raymond Jones ("the petitioner"),
a state prisoner incarcerated at the Northeast Correctional Complex
in Johnson County, filed a petition against Joe C. Crumley, Jr., District
Attorney General for the First Judicial District of Tennessee ("the
respondent"), seeking the contents of files in the respondent's possession
pertaining to "Washington County Criminal Court Case No. 14189." The
trial court ordered that the documents be produced pursuant to the
provisions of Tenn. Code Ann. § 10-7-503(a)(1999). Respondent
appeals. We affirm.
Kathyrn Brown & Swann Jaffurs v. Juan
Gutierrez, William Kessler, Donald Vernine individ. & d/b/a GKV
Leasing - E2003-02755-COA-R3-CV View
Knox County - In this Declaratory Judgment action,
the Trial Court established the purchase price of property pursuant
to a right of first refusal, awarded interest and denied a request
for attorney's fees. On appeal by Seller, we Affirm.
Holli Haney vs. Bradley Co. B.O.E. - E2003-02531-COA-R3-CV View
Bradley County - Holli Thacker Haney ("Plaintiff")
had two children who attended Michigan Avenue Elementary School (the "School")
in Bradley County. Plaintiff's husband, Tracy Thacker ("Thacker"),
was not the biological father of the oldest child, but he was the biological
father of the youngest child. Thacker filed for divorce, and he and
Plaintiff were in sharp disagreement over custody matters. Apparently
believing he was going to lose on the custody issues, on the morning
of December 12, 2000, Thacker went to the School and signed out both
children. The School required Thacker to provide a written explanation
as to why the children were being signed out. Thacker wrote "Keeping
Promise by Mother" and "Pay Back" as his reasons for signing out the
children. School employees did not read what Thacker had written prior
to allowing him to leave the premises with the children. Tragically,
Thacker then murdered both young children. Plaintiff sued the Bradley
County Board of Education asserting claims of negligence and negligence
per se based on the School's allowing Thacker to sign out the children
and leave the School with them on December 12. The Trial Court granted
the Board of Education's motion for summary judgment. We affirm in
part, reverse in part, and remand for further proceedings.
Teresa Fugate vs. William Fugate - E2004-00546-COA-R3-CV View
Rhea County - In this divorce case, Teresa Lynn (Hurst)
Fugate ("Wife") appeals the trial court's decision to set aside the
parties' marital dissolution agreement (MDA) and a quitclaim deed to
the marital residence executed by the Husband shortly after the parties
separated. The trial court found the residence to be marital property
and equally divided the equity in the property between the parties.
Wife argues that the trial court should have found the residence to
be a gift from husband, and thus separate property, and that the trial
court erred by not enforcing the quitclaim deed. Wife also appeals
the trial court's award of $187.00 in attorney fees to Husband. We
affirm the trial court's judgment in all respects.
Robert Walker vs. Michael Mullins - W2004-01174-COA-R3-CV View
Fayette County - This case involves a child custody
dispute between the parents of two minor children. Following a bench
trial, the trial court granted the parties an absolute divorce and
designated the mother as the primary residential parent. In addition,
the court below awarded the parties equal parenting time and provided
for an alternating visitation schedule in the Permanent Parenting Plan.
The mother subsequently filed a motion requesting the trial court to
reconsider the custody arrangement, which the trial court denied. The
mother filed this appeal contesting the determination of custody by
the Circuit Court of Shelby County. For the reasons stated below, we
affirm the decision of the circuit court.
Karen Golightly vs. Gary Golightly -
W2003-00870-COA-R3-CV View
Shelby County - This case involves a child custody
dispute between the parents of two minor children. Following a bench
trial, the trial court granted the parties an absolute divorce and
designated the mother as the primary residential parent. In addition,
the court below awarded the parties equal parenting time and provided
for an alternating visitation schedule in the Permanent Parenting Plan.
The mother subsequently filed a motion requesting the trial court to
reconsider the custody arrangement, which the trial court denied. The
mother filed this appeal contesting the determination of custody by
the Circuit Court of Shelby County. For the reasons stated below, we
affirm the decision of the circuit court.
Mary Fossett vs. Dorothy Gray - W2003-00973-COA-R3-CV View
fayette County - Numerous heirs to property in Fayette
County sought to sell two parcels of land for partition. Defendants/Appellees
opposed the partition of one of the tracts. The trial court ordered
that both tracts be sold for partition by auction, which was held on
September 30, 2000. During the pendency of the partition suit, an investor
bought the fractional interests in the property from numerous heirs,
and intervened as a defendant in the case. The interest of the intervening
defendant was foreclosed upon by the individual who had loaned him
funds to purchase the fractional interests in the land. After the foreclosure,
first intervening defendant brought a cross-claim against second intervening
defendant/appellant. The trial court entered a judgment against second
intervening defendant for the amount of overbid at foreclosure, $150,000.
Second intervening defendant/appellant appeals and also appeals the
final judgment in the partition case. We affirm in part, reverse in
part, and remand.
Cases posted the week of 09/13/2004
Donna Dentonl v. John Hahn - M2003-00342-COA-R3-CV View
(Concur) - View
Davidson County - This appeal involves a tenant who
was injured when she slipped on the metal threshold of a rented condominium
unit. The tenant and her husband filed a negligence action in the Circuit
Court for Davidson County against both the owner of the condominium
unit and the homeowners' association. The trial court granted the condominium
owner's and the homeowners' association's motions for summary judgment,
and the tenant and her husband have appealed. We have determined that
the owner of the condominium unit was not responsible for the maintenance
and repair of the metal threshold because it was part of the condominium's
common elements. While the homeowners' association had a duty to maintain
the threshold in a reasonably safe condition, we have determined that
the association is not liable to the tenant and her husband as a matter
of law because they failed to present evidence that the association
had actual or constructive notice of the condition that caused the
tenant's fall.
Waggoner Motors v. Waverly Church of Christ -
M2002-01165-COA-R3-CV View
Humphries County - This appeal involves an automobile
dealer whose vehicles were damaged by paint overspray from a church's
construction project on adjacent property. The dealer filed suit against
the church in the Circuit Court for Humphreys County seeking damages
for the cost of cleaning the vehicles and lost profits. Following a
bench trial, the trial court determined that the church had not properly
supervised the painting and that the paint overspray had damaged the
automobile dealer. Accordingly, the trial court awarded the dealership
$344,778 in damages and $11,170 in discretionary costs. On appeal,
the church takes issue with the trial court's decisions regarding liability,
damages, and discretionary costs. The dealer also takes issue with
the damages award. The dealer's evidence regarding its lost profits
is too speculative to support the trial court's judgment. However,
we have determined that the evidence supports a judgment for $85,692.
We have also determined that the trial court erred with regard to a
portion of the discretionary costs. Accordingly, we reduce the dealer's
damages to $85,692.00 and modify the award for discretionary costs
to $8,501.25.
Susan Weissfeld v. Steven Weissfeld - E2004-00134-COA-R3-CV View
Knox County - This appeal arises from a post-divorce
case in which the trial court found the Appellant to be in both criminal
and civil contempt for her failure to comply with the court's order
respecting co-parenting time and division of property. The Appellant
contends that the trial court erred in its finding of criminal contempt
because she was not provided adequate notice under Tenn. R. Crim. P.
42(b). The Appellant also contends that the trial court erred in its
award of attorney's fees to opposing counsel. We reverse the trial
court's order to the extent that it decrees the Appellant to be in
criminal contempt and we modify the trial court's order which awards
attorney's fees to opposing counsel.
In Re: Estate of Cora Veal - E2003-02739-COA-R3-CV View
(Dissent) - View
Monroe County - The Monroe County Senior Citizens
Center ("the Center") – a 501(c)(3) non-profit corporation – filed
a claim against the Estate of Cora Veal ("the Estate"). The Center
alleges that Cora Veal ("Mrs. Veal") personally promised to pay for
repairs to the Center's roof, but that she failed to completely honor
her promise prior to her death at the age of 92 on September 16, 2002.
The trial court denied the Center's claim. The Center appeals, claiming
the trial court erred in its interpretation of Tenn. Code Ann. § 24-1-203
(2000), the so-called Tennessee Dead Man's Statute ("the Statute").
We affirm.
J.E.B. v. J.C.W. - E2003-02782-COA-R3-CV View
Blount County - This is a child custody case. After
a trial, the trial court designated the Father as primary residential
custodian of the parties' child. Mother appeals, arguing that the trial
court should have awarded her primary residential custody. We find
that the evidence does not preponderate against the trial court's finding
that the child's best interests are served by awarding Father primary
residential custody. Consequently, we affirm the judgment of the trial
court.
Benjamin Pressnell vs. Steve Hixon -
E2002-01150-COA-R3-CV View
Grainger County - This case essentially involves a
dispute between the owners of adjoining properties in Grainger County.
Specifically, the dispute focuses on (1) the ownership of a private
road ("the disputed private road"); (2) the easement rights, if any,
of the plaintiff Benjamin S. Pressnell with respect to a right-of-way
over the property of the defendants Steve Hixon and wife, Betty Hixon;
and (3) damages allegedly sustained by Pressnell and another plaintiff
by virtue of the Hixons' interference with Pressnell's right to use
the disputed private road and the easement. The trial court, following
a bench trial, found the issues in favor of the plaintiffs. The defendants
appeal. We affirm.
First Tennessee Bank National Assoc vs.
Bad Toys, Inc. - E2003-02503-COA-R3-CV View
Sullivan County - First Tennessee Bank National Association
("the Bank") sued Bad Toys, Inc. and Larry N. Lunan on a note that
allegedly was "fully mature, owing and unpaid." The note had been cross-collateralized
with two other notes payable to the Bank. The three notes and the attendant
guaranty agreements and security agreements were executed either by
Bad Toys, Inc., Larry N. Lunan, or Susan H. Lunan ("Defendants" or
as appropriate "the Lunans"). In addition to other collateral, shares
of stock were pledged as collateral for the notes. Bad Toys, Inc. and
Larry N. Lunan answered the complaint and filed a counter-complaint
in which Susan H. Lunan joined as a counter-plaintiff. The counter-complaint
alleged, in part, that the Bank had breached its fiduciary duty to
the Lunans by failing to sell the pledged stock and that the Bank either
had been grossly negligent or had intentionally caused harm to Defendants
by refusing to sell the stock. The Bank filed a motion to dismiss and
for summary judgment. Defendants opposed by filing the Lunans' affidavit
claiming that the Bank had agreed to sell the shares of stock as soon
as they were pledged, even though the Lunans were forbidden by an agreement
with other shareholders from selling the stock themselves, and that
the Bank failed to sell the shares of stock as it had agreed to do.
The Trial Court held the Lunans' affidavit should be stricken, in part,
and granted the Bank summary judgment. Defendants appeal. We affirm.
Ashley Mitchell vs. Patrick Armstrong - W2003-01687-COA-R3-JV View
Shelby County - This is a Title IV child support case.
The mother established paternity against the father in juvenile court,
and the father was ordered to pay child support. Prior to establishing
the father's paternity, the mother had intermittently received public
assistance. Consequently, the father was to send the child support
payments to the State's collection and disbursement unit, pursuant
to Title IV, chapter D of the Social Security Act. The father failed
to pay the required child support. The State then intervened by filing
a petition for contempt against the father. In the contempt hearing,
the mother asked that the father's child support obligation be terminated.
The trial court suspended the father's obligation to pay current child
support in a set amount through the State disbursement unit, with the
understanding that the father would pay child support in an undetermined
amount directly to the mother, pursuant to an unwritten private agreement
between the mother and the father. The father was required to make
payments to the State on his past arrearages. The State appealed. We
reverse and remand, holding that the trial court was required to have
the child support payments, in a set amount that comports with the
child support guidelines, sent to the State collection and disbursement
unit, and remand for modification of the amount paid on the father's
arrearages.
Darrell Taylor vs. Allstate Ins. - W2003-00341-COA-R3-CV View
Shelby County - This is an action to collect on a
homeowner's insurance policy. The roof and attic of the plaintiff's
home sustained about $9,800 in damages. The plaintiff filed a claim
on the homeowner's insurance policy he had purchased from the defendant
insurance company. The claim was denied. The plaintiff filed the instant
lawsuit to recover the insurance proceeds. After the plaintiff presented
his proof, the trial court entered a judgment in favor of the insurance
company. The plaintiff now appeals. Based on the sparse record on appeal,
we affirm.
Danny Silsbe vs. Houston Levee Industrial
Park. - W2003-00717-COA-R3-CV View
Shelby County - This is a contract case. On December
21, 2001, the parties entered into a contract granting the plaintiff
an option to purchase real property. The plaintiff was required to
exercise his option by 5:00 p.m., January 21, 2002, either by delivering
written notice by that date to the defendant corporation, or by mailing
written notification, postmarked no later than January 21, 2002. At
the time the contract was executed, the parties were unaware that January
21 was a national holiday recognizing Martin Luther King, Jr. On January
21, 2002, the plaintiff attempted to hand-deliver written notification
of his intent to exercise the option, found no one at the defendant's
office at the time and mistakenly assumed the office was closed because
of the holiday. On January 22, the plaintiff hand-delivered written
notice to the defendant. The defendant maintained that the option had
expired. The plaintiff filed this lawsuit, seeking a declaratory judgment
that the January 22 notice was timely and that the defendant was obligated
to sell him the property pursuant to the option contract. After a trial,
the trial court held in favor of the defendant, finding that the option
had expired. The plaintiff appeals, arguing impossibility of performance
and mutual mistake. We affirm, finding that the trial court did not
err in concluding that the doctrines of impossibility of performance
and mutuality of mistake are not applicable.
Woodrow Hawkins vs. Case Management. Inc. -
W2004-00744-COA-R3-CV View
Shelby County - This is an appeal from the trial court's
grant of Defendants/Appellees' motion for summary judgment. Under T.C.A. §40-38-108,
the trial court found that Defendants/Appellees were immune from prosecution
for their alleged failure to properly inform Plaintiff/Appellant of
his possible right to recover from the Tennessee Criminal Injury Compensation
Fund. We affirm.
One Commerce Sq. vs. Ausa Life Ins. - W2003-02956-COA-R3-CV View
Shelby County - Appellant purchaser of commercial
building sued appellee seller to recover payment of a tenant improvement
allowance made by the appellee to a tenant pursuant to a lease agreement
assigned to the purchaser as part of the transaction. The trial court
granted appellee seller summary judgment based upon a construction
of the terms of the assignment transferring the lease to the purchaser.
Appellant purchaser appeals. We affirm.
Yvonne Foster vs. Mollis Wilson - W2003-00872-COA-R3-CV View
Shelby County - This case arises out of an automobile
accident. Appellant appeals from a Judgment entered on a jury verdict.
The jury found the two Defendants to each be 50% at fault and Plaintiff
to be 0% at fault. The jury awarded $0 damages to the Plaintiff. We
find that the trial court did not err in its duty as thirteenth juror
and that there is material evidence to support the verdict. We affirm.
Cases posted the week of 09/06/2004
Opal Brock vs. Meigs County - E2003-02114-COA-R3-CV View
Meigs County - Plaintiff sustained injuries from a
fall in the court house and sued the County for maintaining a dangerous
stairway. Following trial, the Court entered a Judgment for defendant.
We affirm.
Wendy King (Graham) v. Timothy King -
M2002-01202-COA-R3-CV View
Warren County - The trial court denied Mother's petition
to change custody of the parties' minor children from Father to Mother.
We affirm.
Tina Weninger v. Jerry Weninger - M2003-02018-COA-R3-CV View
Stewart County - This appeal arises from a divorce
action. The trial court awarded primary residential custody to mother
and standard visitation to father. We affirm.
Joann Potts vs. Walter Rogers - E2003-00524-COA-R3-CV View
Hamilton County - In 1987 six (6) siblings acquired
by intestate succession, a 115-acre tract, mostly flood plain unimproved
land bordering North Chickamauga Creek near Hixson, Tennessee. Five
(5) of the owners filed a partition action against their brother whose
residence adjoined an upland portion of the 115 acres that was not
subject to flooding. A consent judgment was entered in 1998 that the
entire acreage would be sold and the net proceeds divided equally among
the six (6) owners. But the consent judgment also provided that if
no offer to purchase for $1,734,150.00 was received, the property would
not be sold without unanimous consent or upon further order of the
court. Four years later the North Chickamauga Creek Conservancy offered
$800,000.00 which was accepted by the plaintiffs, and disdained by
the defendant, who apparently wanted the upland tract of 19 acres adjoining
his residence as his partitioned share. The court ordered the property
sold for partition. We modify as to the real estate commission and
affirm.
State Farm Mutual Auto, & Louella McNutt
vs. George Anagnost - E2003-00055-COA-R3-CV View
Knox County - A suit for property damages resulting
from a motor vehicle accident resulted in an award for damages based
on a finding by the Trial Court that defendant was 75% at fault for
the accident. On appeal, we affirm.
Cases posted the week of 08/30/2004
Gary Gillum, Sr. v. Lauren McDonald -
M2003-00265-COA-R3-CV View
Davidson County - Under Marital Dissolution Agreement
Mother and Father "temporarily agreed" to alternate physical custody
of child on a week-to-week basis. Five months later Mother filed a
petition for change of custody. The trial court awarded physical custody
to Mother during the school year and to Father during the summer. Father
appeals arguing that the trial court erred (1) by excluding evidence
of Mother's conduct before the divorce and (2) by failing to state
the reasons and facts on which it based the custody award. We reverse
and remand, finding that the trial court erred by excluding evidence
of conduct prior to the divorce and by not stating the reasons and
facts on which it based its custody decision as required by Tenn. Code
Ann. §36-6-101(a)(2)(B)(I).
In Re: The Estate of J.D. Davis - M2003-02614-COA-R3-CV View
Davidson County - The probate court awarded summary
judgment to Defendants/Appellees upon determining that, under Florida
law, the antenuptial agreement entered into by Plaintiff/Appellant
and Deceased was valid and enforceable. On appeal, Plaintiff/Appellant
argues that the agreement is not enforceable as a violation of Tennessee
public policy and by reason of duress. We reverse the award of summary
judgment and remand for further proceedings.
Sunil Kawatra v. Neelam Kawatra - M2003-01855-COA-R3-CV View
Sumner County - This is a post-divorce parental relocation
case. The Mother, who was the primary residential parent, gave notice
to the Father of her plans to relocate to California with the minor
child. Upon receiving this notice, the Father petitioned the court
to prevent the removal of the child from the State of Tennessee. Following
a bench trial, the trial court granted the Father's petition and determined
that the child was spending substantially equal intervals of time with
each parent pursuant to Tenn. Code Ann. § 36-6-108(c), and that
the child's best interest would be served by remaining in Tennessee.
The trial court denied the Father's request for attorney fees. Both
parties appealed. We find that the trial court applied an incorrect
legal standard in determining whether the parties actually spent substantially
equal intervals of time with the child and, therefore, we reverse the
trial court's judgment regarding relocation and affirm the trial court's
decision denying the Father's request for attorney fees.
D.E. Ryan v. Metro Govt of Nashville & Davidson
County - M2003-01625-COA-R3-CV View
Davidson County - This is a zoning case wherein the
Metropolitan Government of Nashville and Davidson County acting by
and through the Metropolitan Board of Zoning Appeals contends that
the trial court erred in ruling that the Appellant was without jurisdiction
to rescind its prior decisions approving a property owner's application
to reestablish a nonconforming use of certain property and associated
site plan after expiration of the time allowed for appealing such decisions.
The Appellant further argues that the trial court erred in holding
that the property owner's right to utilize such property is protected
under Tenn. Code Ann. § 13-7-208. We affirm in part, reverse in
part and remand.
Thomas Storm v. Jane Storm - M2002-02882-COA-R3-CV View
Williamson County - When the parties divorced in 1999,
they entered into a marital dissolution agreement that was incorporated
into the final divorce decree. That agreement acknowledged that the
alimony payments agreed to "more than likely may have to be modified" if
Husband lost his job or his insurance license. In this modification
of alimony proceeding, the trial court found Husband had lost his job
and was unable to find employment with comparable income. The court
interpreted the MDA as authorizing it to reduce the amount of monthly
payments but not to reduce the total amount due. We interpret the agreement
as allowing modification of the total obligation and remand for reconsideration
in light of this holding.
Kenneth Townsend v. Auto Zone - M2002-02958-COA-R3-CV View
Davidson County - This appeal involves the grant of
summary judgment to Defendant in a slip and fall case. The trial court
found no genuine issue as to any material fact existed and that Defendant
was entitled to judgment as a matter of law. Because we find the summary
judgment motion was improperly granted, we reverse the judgment of
the trial court.
H.M.R., et al vs. J.K.F. - E2004-00497-COA-R3-PT View
Washington County - The trial court terminated the
parental rights of J.K.F. ("Father") with respect to his minor child,
S.B.R. (DOB: September 16, 1996), and granted the petition of the child's
maternal grandparents, H.M.R. and S.M.R. ("the grandparents") to pursue
adoption of the child. Father appeals, arguing, inter alia, that the
evidence preponderates against the trial court's dual findings by clear
and convincing evidence that grounds for terminating Father's parental
rights exist and that termination is in the best interest of the child.
We affirm.
Richard Jones/Richard Jones Jr. vs. Jody
Henderson - W2003-02564-COA-R3-CV View
Shelby County - This case arises from the discovery
of an extramarital affair. The Appellants brought suit against Appellee,
seeking damages on theories of outrageous conduct and interference
with a contract. Appellee filed a motion to dismiss for failure to
state a claim upon which relief can be granted. After a hearing on
the motion, the trial court granted Appellee's motion to dismiss and
this appeal followed. For the following reasons, we affirm.
In re: Estate Angula Turner - W2003-02652-COA-R3-CV View
Tipton County - Beneficiary of will appeals the order
of the chancery court awarding attorney fees, executor fees, and other
expenses. Both factual and legal objections are made to the awards
made by the court. The legal objections are without merit, and the
factual objections are not well-taken, because there is no transcript
or statement of the evidence. We affirm.
Ceciel Halpern vs. Laurence Halpern - W2003-01323-COA-R3-CV View
Shelby County - This is an appeal by the appellant-father
from an order awarding the appellee-mother child support arrearage
and setting prospective child support obligations. Because the support
orders appear to deviate from the child support guidelines without
specific findings by the trial court, we reverse and remand for further
proceedings.
Mitchell MaGill vs. Mary MaGill - E2003-02209-COA-R3-CV View
Roane County - This is a divorce case. The trial court
granted Mary R. MaGill ("Wife") a divorce based upon the inappropriate
marital conduct of her spouse, Mitchell Lloyd Magill ("Husband"); awarded
Wife rehabilitative alimony of $600 per month for four years, plus
attorney's fees of $600; and divided the parties' marital property.
Husband appeals the trial court's award of rehabilitative alimony.
In a separate issue, Wife contends that the trial court failed to divide
marital assets in the form of two businesses, i.e., MaGill Electric
and C&M Lounge. She also seeks an award of damages for a frivolous
appeal. We affirm.
Bradley Fleet vs. Leamon Bussell - E2003-02788-COA-R3-CV View
Claiborne County -
Bradley C. Fleet and his father, Herbert
C. Fleet, Jr., residents of the state
of Virginia, sued tortfeasors Leamon
Bussell and Clarence Bussell, residents
of Claiborne County, seeking damages
arising out of an automobile accident
in Claiborne County involving vehicles
driven by the plaintiff Bradley C. Fleet
and the defendant Leamon Bussell. The
plaintiffs caused process to be served
upon their uninsured motorist carrier,
Integon General Insurance ("Integon").
The trial court granted the plaintiffs'
motion for summary judgment against Integon,
finding that Virginia law – which
is indisputably applicable in this case – permits
the stacking of uninsured motorist/underinsured
motorist ("UM/UIM") coverage. Integon
appeals. We reverse the trial court's
decree granting the plaintiffs summary
judgment. Further, we grant Integon's
motion for summary judgment and dismiss
the plaintiffs' claim against Integon.
Roane County vs. Weston Tucker - E2003-00446-COA-R3-CV View
Roane County - Weston Tucker and Mary Louise Tucker
("the defendants") subdivided and sold land in Roane County for residential
use. Roane County filed a declaratory judgment action against the defendants
contending that the defendants "have failed to have a subdivision plat
approved by the Regional Planning Commission" and that the new road/easement
constructed by the defendant is unpaved and "approximately thirteen
(13) feet wide", and "drainage has generated a complaint by a neighboring
property owner." Roane County asked the court to, among other things,
declare that the land in question is subject to the Roane County Subdivision
Regulations ("the regulations"); grant injunctive or other relief;
enforce the regulations; and declare the rights and/or liabilities
of each party under the regulations. In their answer, the defendants
contend that an official in the Roane County Zoning Office represented
to them that the subdivision of land into parcels of more than 5 acres
does not need approval from the Roane County Planning Commission ("the
planning commission"). The trial court dismissed the case, finding,
among other things, that Roane County's actions in attempting to prosecute
the defendants civilly and criminally were "discriminatory, arbitrary
and capricious."
Community Bank of East Tennessee vs. Dept of Safety -
E2004-00975-COA-R3-CV View
The Claim Commissioner held Commission was without jurisdiction to
entertain claim on appeal. We vacate Judgment and remand.
Daniel Gill vs. City of Church Hill - E2004-00200-COA-R3-CV View
Hawkins County - Defendant engaged in so-called high
speed chase of plaintiff's intestate, which resulted in death of decedent.
The Trial Court dismissed on Motion on the basis of Tenn. Code Ann. § 55-8-108(e).
On appeal, we affirm.
In The Matter of : D.A.E. - E2002-02836-COA-R3-PT View
Jefferson County - The trial court terminated the
parental rights of T.E.T. ("Mother") with respect to her five minor
children, D.A.E. (DOB: June 13, 1992), J.H.E. (DOB: June 5, 1994),
D.H.E. (DOB: June 13, 1995), J.E. (DOB: June 30, 1996), and D.E. (DOB:
January 15, 1998). Mother appeals, arguing that the evidence preponderates
against the trial court's finding – which the court made by clear
and convincing evidence – that Mother failed to substantially
comply with the requirements of the permanency plan. We affirm.
In Re: The Estate of Kathleen Mead, L. Grady Lee, vs.
Helen Jo Gilliam - E2003-02629-COA-R3-CV View
Sullivan County - A typewritten document and a handwritten
document prepared later in time were offered for probate. The Trial
Court rejected the handwritten document and admitted the typewritten
document to probate as the Last Will and Testament of Deceased. On
appeal, we reverse.
Ron Colquette vs. Peter Zaloum - E2003-02301-COA-R3-CV View
Knox County - Ron Colquette ("Plaintiff") sued Peter
Zaloum ("Defendant") claiming, in part, that Defendant made fraudulent
misrepresentations in connection with the sale of his business and
the lease of his land to Plaintiff, and that Defendant violated the
Tennessee Consumer Protection Act. After a bench trial, the Trial Court
entered a Final Judgment holding, inter alia, that Plaintiff was entitled
to damages in the amount of $70,054.35, plus pre-judgment interest;
that Plaintiff was entitled to punitive damages in the amount of $15,000;
and that the Tennessee Consumer Protection Act was not applicable to
this case. Defendant appeals, and Plaintiff raises additional issues
concerning the applicability of the Tennessee Consumer Protection Act
to the facts of this case, and the amount of punitive damages awarded
to him. We affirm.
Helen Gleason v. Daniel P. Gleason, III -
M2003-01580-COA-R3-CV View
Rutherford County - The trial court awarded Petitioner
alimony arrearages of $7,250 plus interest. Respondent appeals, asserting
the statute of limitations and the defense of laches. We modify the
judgment of the trial court and remand.
Kenneth Snell v. City of Murfreesboro -
M2003-02716-COA-R3-CV View
Rutherford County - Plaintiffs appeal from trial court's
dismissal of complaint for failure to state a cause of action. Plaintiffs
allege that trial court erred in finding that Plaintiffs had no standing
to challenge annexation ordinance passed by City of Murfreesboro. Finding
that the trial court was correct in determining that Plaintiffs were
not entitled to challenge the annexation ordinance under Tennessee
declaratory judgment statute, we affirm.
Gretchen Swift v. John Campbell, et al -
M2003-02607-COA-R3-CV View
Davidson County - This appeal involves the right to
inspect and copy the contents of an assistant district attorney general's
files in a case involving a prisoner on death row. An assistant district
attorney general for the Thirtieth Judicial District denied the request
of an attorney employed by the Office of the Federal Public Defender
to inspect and copy the records he created while preparing for a concluded
state proceeding being challenged in federal court. Thereafter, the
requesting attorney filed suit in the Chancery Court for Davidson County
pursuant to Tenn. Code Ann. § 10-7-505 (1999) asserting her right
under Tenn. Code Ann. § 10-7-503 (Supp. 2003) to inspect and copy
the assistant district attorney's records. Following a hearing, the
trial court dismissed the petition based on Tenn. R. Crim. P. 16, the
work product doctrine, the law enforcement investigative privilege,
and the deliberative process privilege. The requesting attorney has
appealed. We have determined that Tenn. R. Crim. P. 16 protects the
requested records from disclosure because a federal proceeding challenging
the state proceeding for which the records were prepared is currently
pending.
Luke Gibson vs. Chrysler Corp. - W2002-03134-COA-R3-CV View
Shelby County - This is an appeal from a judgment
entered on a jury verdict for Defendant/Appellee. Plaintiff/Appellant,
a minor, was allegedly injured when an integrated car seat in a vehicle
manufactured and sold by Defendant/Appellee malfunctioned. Plaintiff/Appellant
asserts that: (1) the jurors conducted unauthorized experimentation
with certain exhibits, which constituted extraneous prejudicial information
under Tenn. R. Evid. 606(b); (2) that there is no material evidence
on which the jury could have based its verdict; (3) that the trial
judge failed to properly perform her duty as thirteenth juror; (4)
that the trial court erred in allowing an expert to testify outside
the scope of his expertise in violation of McDaniel v. CSX Transportation,
Inc., 955 S.W.2d 257 (Tenn. 1997); and (5) that the trial court erred,
either under Tenn. R. Evid. 702 and 704 or on the theory of judicial
estoppel, in excluding a portion of the testimony of a second expert.
We affirm.
Cases posted the week of 08/23/2004
Tammy Barker vs. Vernon Barker - W2003-01989-COA-R3-CV View
Shelby County - This is a divorce case. The parties
were married for three years prior to their separation, and two children
were born during the marriage. The mother filed a petition for divorce,
and the father filed a counterclaim for divorce. After a bench trial,
the trial court entered a final decree of divorce and a parenting plan.
In the plan, the father was permitted supervised visitation with the
children, but was required to undergo a psychological evaluation in
order to continue that visitation. The plan also provided that the
children’s guardian ad litem would be the “binding arbitrator” on
all matters involving the father’s visitation. The father now
appeals, claiming that the trial court erred in requiring him to undergo
a psychological evaluation and in appointing the guardian ad litem
as the arbitrator on matters involving his visitation schedule. Because
the father did not properly object to the issues raised on appeal,
they are deemed to be waived. Therefore, we affirm.
James Drake Jr. vs. JPS Elastomerics -
W2003-01579-COA-R3-CV View
Shelby County - This case involves the breach of an
employment compensation contract. Under the sales employee’s
compensation plan with his employer, he was to earn extra commission
for any sales that exceeded his annual quota. In the compensation plan,
the employer reserved the right to pay only the standard commission
on “windfall” sales. For the fiscal year at issue, the
sales employee exceeded his quota. The employer invoked the windfall
provision of his compensation plan and paid him only the standard commission
on the sales over his quota. The sales employee sued his employer,
arguing that he was entitled to the extra commission on the sales over
his quota. On cross-motions for summary judgment, the judge ruled in
favor of the plaintiff sales employee. On appeal, the defendant employer
argues that the “windfall provision” applies to all sales
that were unbudgeted or unforecast and that the plaintiff sales employee’s
excess sales fall in that category. We hold that the defendant employer’s
interpretation conflicts with the plain meaning of the contract, and
affirm the decision of the trial court.
Joe/Brenda Rankin vs. Lloyd Smith - W2003-00992-COA-R3-CV View
Dyer County - This is a breach of contract case. The
plaintiffs entered into a contract to sell their home and farm to the
defendant. On the scheduled closing date, the defendant refused to
purchase the property. The plaintiffs sold the property to a third
party for substantially less than the amount the defendant had agreed
to pay. In April 2002, the plaintiffs filed the instant lawsuit against
the defendant for breach of contract. The defendant argued that he
was fraudulently induced into signing the contract, because the parties
had a verbal understanding that the contract would not be enforced.
The trial court granted summary judgment in favor of the plaintiffs.
The defendant now appeals. We affirm, finding that the defendant alleges
promissory fraud, that evidence of the parties’ verbal agreement
is inadmissible under the parol evidence rule, and that the evidence
submitted by the defendant does not create a genuine issue of material
fact regarding fraudulent inducement.
Sam Posey et al vs. City of Memphis -
W2002-00531-COA-R3-CV View
Shelby County - This is an equal protection case involving
pension benefits for firefighters. The municipal charter and ordinance
required that thirty-year firefighters be automatically promoted to
fire captain and that their salaries and pensions be calculated accordingly.
The defendant municipality reorganized the command structure of the
fire division, forcing nearly half of the fire captains to retire.
The position of fire captain was eliminated, and the remaining former
captains were designated as battalion captains with expanded responsibilities.
The fire captain position remained on the payroll for purposes of calculating
pension benefits, as per the municipal charter and ordinance requirement.
Following the reorganization, the salary for thirty-year firefighters
was set at a fire captain’s base pay, but thirty-year firefighters
were no longer permitted to ascend the captain’s pay scale and
retire at the highest level of pay. In contrast, police officers, whose
compensation and pensions were governed by the same charter and ordinance
provisions, had an opportunity to reach the highest pay levels given
thirty-year police officers. The firefighters filed this lawsuit alleging,
inter alia, a violation of the equal protection provision of the United
States Constitution. The trial court found no equal protection violation.
We affirm, holding that the equal protection clause is not applicable
because thirty-year firefighters and thirty-year police officers are
not sufficiently similarly situated.
Kyle Wiltse vs. Christopher Wiltse - W2002-03132-COA-R3-CV View
Shelby County - This case involves issues arising
out of the parties’ divorce. The trial court divided the parties’ marital
assets, awarded Appellee alimony in futuro, ordered Appellant to pay
Appellee’s attorney’s fees, and ordered Appellant to pay
for Appellee’s health insurance premiums. For the following reasons,
we affirm in part, modify in part, and remand for any further proceedings.
Kenenth Brasel Sr. vs. John Brasel Sr. -
W2003-02965-COA-R3-CV View
Shelby County - This is a child custody case. Father/Appellant
appeals from the trial court’s Order, which denied Father/Appellant’s
Petition to change custody from the minor child’s grandparents
to Father. Finding that there is not a material change in circumstances
to warrant a change of custody and that Father is not entitled to the
Superior Rights Doctrine, we affirm.
Donnie Johnson vs. V. City Roofing -
W2003-01852-COA-R3-CV View
Obion County - This case is an appeal from an order
granting Appellee’s motion for summary judgment. Appellant argues,
as he did at trial, that this case involves genuine issues of material
fact, rendering summary judgment inappropriate for this action. For
the following reasons, we affirm.
St. Paul Reinsurance vs. V. Robert Williams -
W2003-00473-COA-R3-CV View
Shelby County - This case arises from events surrounding
the shooting death of Decedent, Appellant’s son. Appellee filed
a motion for summary judgment claiming its policy of insurance did
not apply to the circumstances of this case because Appellant’s
claim was specifically excluded from the insurance policy. The trial
court granted Appellee’s motion for summary judgment and, for
the following reasons, we affirm.
Michael Mitchell vs. William Henegar, d/b/a
Henegar Realty - E2003-01885-COA-R3-CV View
Anderson County - Plaintiff sought rescission of a
purchase of real property, and damages pursuant to the Consumer Protection
Act. The Trial Court held plaintiff failed to carry his burden of proof
on the issues presented. On appeal, we affirm.
In Re: Estate of Sherman Fetterman vs. Johnny
King - E2003-02081-COA-R3-CV View
Scott County - The Trial Court awarded Estate Judgment
for attorney’s fees based on Decedent’s contingency fee
contract with Defendant. On appeal, we vacate and remand to establish
fees under the theory of quantum meruit.
Kevin Craig vs. Julie Craig - E2003-02479-COA-R3-CV View
Sevier County - The Trial Court awarded a divorce
to Kevin Edward Craig (“Husband”) based on the admitted
adultery of Julie Ann Craig (“Wife”) and after specifically
finding Wife was not telling the truth regarding her allegations of
inappropriate marital conduct by Husband. The Trial Court concluded
it was in the best interests of the children to designate Wife as the
primary residential parent of the parties’ two minor sons. The
Trial Court also determined how much equity was in the marital residence
and awarded one-half of the entire amount to Wife, even though the
property was owned by Husband and both of his parents. The Trial Court
refused to award Wife any attorney fees. We modify the award to Wife
of one-half of the entire equity in the marital residence. We affirm
the Trial Court’s award of a divorce to Husband and its judgment
designating Wife as the primary residential parent.
In the Matter of : B.G.J. - E2003-02475-COA-R3-PT View
Monroe County - The trial court terminated the parental
rights of R.G.J. (“Mother”), with respect to her minor
child, B.G.J. (DOB: March 16, 1993), and placed custody of the child
with the child’s maternal grandparents, G.M. and P.M. (“the
grandparents”). Mother appeals, arguing, inter alia, that the
trial court erred in finding that Mother had committed severe child
abuse, which justified the termination of her parental rights. We affirm.
Johnny King vs. Steve Lanter - E2003-00704-COA-R3-CV View
Scott County - This is a boundary line dispute with
ancillary issues. Following a bench trial, the court resolved the location
of the parties’ common north-south boundary line and the other
issues. Both parties raise issues on appeal. We affirm.
Susan & James Charles vs. Ruth & Ralph
Latham - E2003-00852-COA-R3-CV View
Blount County - In a dispute over an easement, the
Trial Court awarded damages to plaintiffs for interference with use
of easement, nuisance and punitive damages. On appeal, we affirm the
award of compensatory damages, but vacate the award of punitive damages
and remand to assess punitive damages in accordance with Hodges v.
Toof & Co., 833.S.W.2d 896 (Tenn. 1992).
Rocky Garner v. Phil Breeden & Associates -
M2002-03103-COA-R3-CV View
Davidson County - Appellant sued Appellee for breach
of contract or in the alternative for quantum meruit value of services
rendered. At the conclusion of Plaintiff's proof the trial court sustained
a motion for a directed verdict on behalf of Defendant as to the quantum
meruit claim and further sustained that motion on a large portion of
the contract claim. As to remaining portions of the contract claim
the motion for a directed verdict was overruled, and Plaintiff voluntarily
dismissed the remaining claims without prejudice. We hold that the
trial court erred in granting the motion for a directed verdict as
to the contract case but correctly granted a directed verdict as to
quantum meruit. The judgment of the trial court is affirmed in part,
reversed in part and remanded for trial on the contract issues.
Jamie Hines v. Terrell Simms - M2003-01459-COA-R3-CV View
Davidson County - This appeal involves a custody dispute
triggered by a paternity action. The trial court fashioned a permanent
parenting plan which named Father the primary residential parent during
the school year and Mother the primary residential parent during summer
vacation. Mother appeals. We affirm the judgment of the trial court.
Bobbi Jo Fisher vs. Tennessee Insurance Co. -
E2004-00189-COA-R3-CV View
(Concur) - View
Knox County - The defendant issued a policy of automobile
insurance to the plaintiff which provided coverage for liability claims
and for collision damage, but each of these insuring agreements was
subject to an exclusion of coverage if the insured automobile was being
operated by a non-licensed driver at the time of the accident giving
rise to the claim. The plaintiff loaned her Pontiac to a non-licensed
driver under the mistaken belief that he was properly licensed. The
trial judge found that the plaintiff reasonably believed that her permittee
had a valid driver's license and allowed recovery. We reverse and dismiss.
John Whitney Evans III v. Dinah Petree Evans -
M2002-02947-COA-R3-CV View
(Concur) - View
Lawrence County - In this appeal, Husband seeks to
be relieved from his obligation to pay alimony in futuro to his former
wife. In support of his request, Husband asserts that his former wife's
cohabitation with another man terminated his obligation since Wife
was being supported by that third person and was in no need of alimony.
The trial court denied Husband's petition finding Wife was not living
with a third person, had rebutted presumption that she does not need
the alimony, and that no material change in circumstances had occurred
to warrant modification of the initial award of alimony. We affirm
those holdings. However, we reverse the trial court's award of attorney's
fees to Wife.
Mary Finchum, Indv.& a/n/k William Finchum
vs. Ace, USA - E2003-00982-COA-R3-CV View
(Dissent) - View
Knox County - The trial court dismissed the complaint
on a motion filed pursuant to Tenn. R. Civ. P. 12.02(6). We vacate
and remand because the Motion to Dismiss did not comply with the Rules
of Civil Procedure.
Raymond LeDoux and wife, Virginia LeDoux v. Wendall
Pierce - M2003-00671-COA-R3-CV View
Maury County - This case involves a default judgment.
The plaintiffs filed a civil warrant in general sessions court against
the defendant for intentional infliction of physical injuries. The
defendant did not appear, and the plaintiffs obtained a judgment by
default. The defendant appealed to the circuit court for a trial de
novo. The circuit court set the case for trial. On the trial date,
however, neither the defendant nor his counsel appeared, and the default
judgment was reinstated. The defendant filed a Rule 60.02 motion to
have the default judgment set aside, based on excusable neglect. The
defendant's lawyer attached his own affidavit, which explained that
the lawyer was in the midst of closing his law office after thirty-eight
years of practice and, in the confusion, failed to put the hearing
date on his calendar. The motion to set aside was denied. The defendant
now appeals. We vacate and remand to the trial court to consider whether
the defendant has a colorable defense to the plaintiffs' claims and
to reweigh the pertinent factors in light of that finding.
Norandal USA, Inc. v. Ruth E. Johnson,
Commissioner of Revenue for the State of Tennessee - M2003-00559-COA-R3-CV View
Davidson County - This is a sales tax case. The plaintiff
owns an aluminum sheet and foil manufacturing plant. Located in the
plant are two multi-ton roll grinders. In 1987, the defendant commissioner
of revenue took the position that the roll grinders and roll grinder
supplies were exempt from sales tax, because the roll grinders constituted "industrial
machinery," which were exempt. In 1995, however, the department of
revenue conducted an audit of the plaintiff and changed its position,
concluding that the roll grinders were "equipment used for maintenance," which
is an exception to the industrial machinery exemption. Accordingly,
the plaintiff was assessed for sales tax on roll grinder supplies purchased
between 1995 and 1998. The plaintiff paid the assessment under protest
and filed the instant lawsuit, seeking to recover the sales tax paid
on roll grinder supplies for the audit period. The trial court upheld
the decision of the department of revenue, concluding that the roll
grinders were "equipment used for maintenance." From that order, the
plaintiff now appeals. We affirm, finding that the roll grinders fit
within the "equipment used for maintenance" exception and that, consequently,
roll grinder supplies are subject to sales tax.
Ronald C. Teachout v. Conseco Securities, Inc. a/k/a
Conseco Financial Services, Inc., Conseco Finance Servicing Corp.,
Conseco Bank, Inc. and Lisa M. Bynum - M2003-00621-COA-R3-CV View
Davidson County - This is an arbitration case. The
plaintiff borrower executed a note in favor of the defendant bank.
The note included an arbitration clause, requiring all disputes between
the "Borrower(s)" and "Note Holder" to be arbitrated. The term "Note
Holder" is defined in the note as the "Lender or anyone who takes [the]
Note by transfer and who is entitled to receive payments under [the]
Note." The bank transferred the note and the borrower began making
payments to a third party. The borrower then filed this lawsuit against
the bank and others, alleging fraud in the inducement, negligent misrepresentation,
promissory fraud, and violation of the Consumer Protection Act. The
defendants filed a motion to stay the proceedings and to compel arbitration.
The trial court denied the motion. We affirm, holding that under the
note, the bank is no longer a "Note Holder" and therefore does not
have standing to invoke the arbitration clause.
Sara Stovall vs. City of Memphis -
W2003-02036-COA-R3-CV View
Shelby County - This case arises from the trial court's
grant of Appellee's Motion for Summary Judgment based on interpretation
of T.C.A. § 36-3-103(a). Finding that T.C.A. § 36-3-103(a)
requires couples to obtain a marriage license for a valid marriage
in Tennessee and that Marriage by Estoppel does not apply, we affirm.
Larry D. Howard vs. Life Care Centers
of America, Inc. - E2004-00212-COA-R3-CV View
Hamilton County - This is a retaliatory discharge
action brought pursuant to Tennessee's "whistleblower" statute, Tenn.
Code Ann. § 50-1-304. The plaintiff alleged that he was an employee
and was wrongfully discharged because he complained to governmental
officials about alleged Medicare violations by the defendant. The defendant
denied these allegations and moved for summary judgment. The trial
court granted the defendant's motion for summary judgment and the plaintiff
appealed. We affirm the judgment of the trial court and find that although
a genuine issue of material fact exists as to whether the plaintiff
was an independent contractor and not an employee, the defendant did
not discharge the plaintiff but rather chose not to renew his contract
upon its expiration. Accordingly, the plaintiff is not entitled to
the protection of the Tennessee whistleblower statute, and, therefore,
we affirm the trial court.
Michael P. Rutherford, In his official
capacity as Washington County Zoning ADM. vs. Robert Lewis Murray,
Jr. - E2003-01333-COA-R3-CV View
Washington County - Michael P. Rutherford, in his
official capacity as Washington County Zoning Administrator, ("Plaintiff")
sued Robert Lewis Murray, Jr. ("Defendant") claiming defendant was
operating an automobile repair business and a junkyard in violation
of Washington County zoning regulations. Defendant claimed the use
of his property was a nonconforming use allowed prior to a change in
the zoning regulations, and, therefore, was entitled to protection
under Tenn. Code Ann. § 13-7-208, the grandfather statute. After
a bench trial, the trial court found and held that defendant's business
was grandfathered in as a prior nonconforming use because defendant
was working substantially on the construction of his business garage
prior to the change in zoning. Plaintiff appeals. We affirm, but remand
for further proceedings on the issue of whether defendant is operating
a junkyard in addition to his automobile repair business.
Cases posted the week of 08/16/2004
Charles Conner vs. Michaeal Mcgill - W2003-01988-COA-R3-CV View
Shelby County - This
is an unemployment compensation case in which Appellant
was denied benefits by the Tennessee Department
of Labor and Workforce Development. At all administrative
levels it was determined that Appellant was discharged
for "misconduct connected with such claimant's
work" and that he was, therefore, disqualified
from receiving benefits under Tenn. Code Ann. § 50-7-303.
This ruling was then affirmed by the lower court.
Appellant then timely filed this appeal challenging
the ruling of the lower court. For the following
reasons, we affirm and remand for further proceedings.
American Chariot vs. City of Memphis - W2004-00014-COA-R3-CV View
Shelby County - Plaintiffs, horse-drawn carriage operators,
filed a declaratory judgment action challenging the constitutionality
of a provision of one section of an ordinance adopted by the Memphis
City Council. The trial court elided the provision as an unlawful delegation
of the City's police power and enforced the remainder of the ordinance.
Plaintiffs appeal, asserting the trial court erred in its application
of the doctrine of elision. Defendants cross-appeal, asserting the
trial court erred by finding the elided portion unconstitutional. We
affirm.
Mary McIntosh vs. M.A. Blanton III M.D. -
W2003-02659-COA-R3-CV View
Obion County - Plaintiff appeals the award of summary
judgment to defendant physician based on the statute of limitations
for medical malpractice actions. We reverse and remand for further
proceedings.
In Re: T.H. and J.H. - M2003-02265-COA-R3-PT View
Cannon County - Mother appeals the termination of
her parental rights to her two children. The circuit court found that
Mother was in substantial noncompliance with the permanency plan, that
she failed to remedy the persistent conditions that prevented her child's
return, and that termination was in the child's best interest. We affirm.
The record contains numerous extraneous documents that do not pertain
to the petition to terminate parental rights or the issues raised on
appeal. The parties and the clerk have a responsibility to abridge
the record. Tenn. R. App. P. 8A(c). Failure to abridge the record may
result in a reduction of the circuit court clerk's fee for the cost
of preparing and transmitting the record. Tenn. R. App. P. 40(g).
In Re: C.A.H. - M2004-00523-COA-R3-PT View
Coffee County - Mother appeals termination of her
parental rights. The juvenile court found that Mother was in substantial
noncompliance with the permanency plan, that she failed to remedy the
persistent conditions that prevented her child's return, and that termination
was in the child's best interest. We affirm. The record contains numerous
extraneous documents that do not pertain to the petition to terminate
parental rights or the issues raised on appeal. The parties and the
clerk have a responsibility to abridge the record. Tenn. R. App. P.
8A(c). Failure to abridge the record may result in a reduction of the
juvenile court clerk's fee for the cost of preparing and transmitting
the record. Tenn. R. App. P. 40(g).
B.M.M. v. P.R.M. - M2002-02242-COA-R3-CV View
Wilson County - This
is a child custody dispute. The mother and father
entered into a permanent parenting plan naming
the mother the primary residential parent of their
daughter. Under the plan, the father had supervised
visitation because the mother was concerned about
sexual abuse by the father. The father later sought
to modify the parenting plan to allow for unsupervised
visitation. The mother then filed a notice that
she intended to move to Florida with the daughter,
which the father opposed. The trial court granted
the father's petition for unsupervised visitation
and denied the mother's request to relocate to
Florida with the child. The mother and daughter
then left for a scheduled trip to Florida, with
the understanding that they would return for the
father's scheduled visitation. The mother remained
in Florida with the daughter for six weeks, asserting
that she, the mother, was too ill to travel. The
father was granted an emergency change of custody.
The father then retrieved the daughter through
a private investigator, coordinating with Florida
officials. Upon return to Tennessee, the trial
court found the mother in criminal contempt for
interfering with the father's visitation and for
moving to Florida. The father was named the primary
residential parent and the mother was granted supervised
visitation. The mother was also required to pay
the father for the cost of the private investigator.
The mother appeals the denial of her request to
move to Florida with the child, the award of unsupervised
visitation to the father, the finding of contempt,
the change of custody, the requirement that her
visitation be supervised, and the requirement that
she pay the private investigator's fee. We affirm.
Susan Pykosh v. Stephanie Earps - M2004-01507-COA-R10-CV View
Wilson County - This extraordinary appeal involves
a Tenn. R. Civ. P. 35.01 request for a physical examination of an opposing
party. Following a vehicular collision in Wilson County, one of the
drivers and her passenger filed suit in the Circuit Court for Wilson
County seeking damages from the driver and owners of the other vehicle.
Issues involving the extent and permanency of the plaintiff driver's
injuries caused by this collision arose after the plaintiff driver
was injured in another accident, and the defendants requested permission
for their medical expert to examine the plaintiff driver. The trial
court denied the request, and the defendants filed a Tenn. R. App.
P. 10 application with this court. We have determined that, under the
facts of this case, the trial court's denial of the defendants' Tenn.
R. Civ. P. 35.01 motion departs from the accepted and usual course
of judicial proceedings of this sort. Therefore, we grant the Tenn.
R. App. P. 10 application and reverse the order denying the Tenn. R.
Civ. P. 35.01 motion.
Teresa Martin vs. Johnny Drinnon - E2003-02106-COA-R3-CV View
Hawkins County - This litigation arises out of a two-vehicle
collision in Hawkins County. Teresa A. Martin ("the plaintiff") and
her husband sued the driver of the other vehicle, Johnny L. Drinnon
("the defendant"), seeking damages and charging him with common law
and statutory acts of negligence. The defendant answered and filed
a counterclaim. The jury returned a verdict, finding the parties equally
at fault. Judgment was entered on the jury's verdict and the trial
court denied the plaintiff's motion for a new trial. The plaintiff
appeals, raising, in effect, three issues. We vacate the trial court's
judgment and remand for further proceedings.
In matter of S.R.C. - W2004-00238-COA-R3-PT View
Gibson County - The trial court terminated Mother's
parental rights. We affirm.
In matter of C.T.S. - W2003-01679-COA-R3-PT View
Tipton County - The trial court terminated Father's
parental rights based on Tenn. Code Ann. § 36-1-113(g)(6) and
Mother's parental rights based on Tenn. Code Ann. § 36-1-113(g)(1).
Mother and Father appeal. We affirm.
Williams Holding Co. vs. Sharon Willis - W1999-02733-COA-R3-CV View
Shelby County - Plaintiff, owner of an apartment complex,
filed suit seeking damages caused by a fire in an apartment occupied
by Defendants. The parties consented to arbitration. The parties stipulated
to the damages in the amount of $73,414.64. Further, it was stipulated
that Plaintiff settled with two of the three Defendants whereby the
two Defendants payed 50%, $36,707.32, of the property damage. Subsequently,
the arbiter ruled that the remaining Defendant was 100% at fault and
liable for the total amount of damages, $73,414.64. Plaintiff filed
a motion with the trial court to confirm the arbiter's award. In response,
the remaining Defendant filed a motion to modify, correct, and/or to
vacate the arbitration award and a motion for credit, set off and reduction
of award. The trial court confirmed the arbiter's award, thereby denying
Defendant's motions. Defendant appeals. For the following reasons,
we reverse the decision of the trial court and modify the arbitration
award.
Jordan Danelz vs. John Gayden - W2003-01649-COA-R3-JV View
Shelby County - Mother and husband divorced. In her
complaint for divorce, mother stated that her son was born of their
marriage. Husband paid son's child support. Upon reaching the age of
majority, son filed a paternity action against alleged father. Son
relied upon mother's affidavit as proof of requisite sexual contact.
The alleged father filed a motion to dismiss for failure to state a
claim arguing mother was judicially estopped from making the statements
contained in her affidavit in light of her statements made in her divorce
complaint. The juvenile court granted the motion to dismiss. For the
following reasons, we reverse the decision of the trial court and remand
for proceedings consistent with this opinion.
Tami Hall v. Richard Hamblen - M2002-00562-COA-R3-CV View
Davidson County - Homeowners of a new residence brought
an action against a subcontractor for breach of contract, negligent
misrepresentation, professional negligence, and violation of the Tennessee
Consumer Protection Act. The trial court found that there was a breach
of contract and awarded attorney's fees under the Tennessee Consumer
Protection Act. Subcontractor appealed insisting that because no violation
of the TCPA was found, the trial court lacked a basis to award attorney's
fees. We agree and reverse the judgment of the trial court with respect
to the award of attorney's fees.
In the Matter of: M.E., M.E., R.B., M.B., S.B. -
M2003-00859-COA-R3-PT View
Davidson County - Mother and father of three children
appeal termination of their respective parental rights. Mother appeals
arguing that the trial court erred in finding persistence of conditions
sufficient to terminate her rights. We reverse, finding that the Department
failed to make reasonable efforts to reunite Mother with her children.
Father appeals alleging that he was denied counsel and/or the effective
assistance of counsel. The trial court appointed counsel to represent
Father but thereafter relieved appointed counsel without stating a
basis and did not appoint substitute counsel. Father retained an attorney
on the eve of trial but this retained attorney only appeared on four
of the seven days of trial and was absent during significant portions
of the days he attended. Since the trial court initially found that
Father was entitled to appointed counsel and never made a finding that
Father was no longer entitled to appointed counsel or that he had waived
the right to counsel, we find that the trial court erred when it failed
to appoint substitute counsel. Father attempted to retain counsel;
however, retained counsel's repeated failures to attend the hearings
was equivalent to Father having no counsel. Thus, Father was deprived
of the right to counsel. Accordingly, we vacate the judgment terminating
Father's parental rights.
Todd Schott vs. Animagic Studios - E2003-02287-COA-R3-CV View
Knox County - Todd Schott ("Plaintiff") filed this
lawsuit pursuant to Tenn. Code Ann. § 48-245-801 claiming he was
a member of Animagic Studios, LLC ("the LLC"), and also that the LLC
owed him over $27,000 in unpaid salary and commissions. Plaintiff requested
the Trial Court to appoint a Receiver and to direct the Receiver to
liquidate the assets of the LLC for the benefit of the LLC's creditors
and otherwise dissolve the LLC. After a trial, the Trial Court concluded
Plaintiff was neither a creditor nor a member of the LLC and, therefore,
could not maintain this lawsuit against the LLC pursuant to Tenn. Code
Ann. § 48-245-801. Plaintiff appeals. We affirm.
David Hodge vs. Shelly Cornelison - W2003-00962-COA-R3-CV View
Madison County - In boundary line dispute, owner of
southern tract of real property (appellee) brought action against adjacent
land owner to the north (appellant) to quiet title and restrain appellant
from alleged offending use of disputed piece of property. Appellant
filed counter-claim to quiet title and have appellee ejected from property.
Trial court decreed appellee lawful owner of disputed property, relying
upon evidence of three iron pins referenced in deed to appellee as
the proper boundary markers. We affirm.
Dept.of Children's Services v. C.H.K., and Unknown Father;
In Re: J.W.P. - M2003-02859-COA-R3-PT View
Davidson County - This appeal involves a petition
filed by the Department of Children's Services to terminate the parental
rights of the mother to her three year old son. The Trial Court granted
the petition and the mother appealed. We have determined that the Trial
Court's judgment must be vacated and remanded because the Trial Court
failed to make the specific findings of fact and conclusions of law
on the issue of abandonment as required by Tenn. Code Ann.§ 36-1-113(k).
Further, we find that the Trial Court's judgment must be reversed since
there was not clear and convincing evidence for termination pursuant
to Tenn. Code Ann. § 36-1-113(g)(3)(A). Therefore, we vacate in
part, reverse in part and remand.
Cases posted the week of 08/09/2004
Karl Birkholz vs. Davis Hardy - W2003-01539-COA-R3-CV View
Shelby County - Appellants/buyers appeal from judgment
entered for Appellees/sellers on promissory note given for purchase
of real estate. The note contained a condition precedent wherein the
principal would not be due until Appellants/buyers sold commercial
property they owned. The trial court imposed five years as a reasonable
time for performance of the contract and awarded prejudgment interest.
Appellants/buyers appeal. We affirm in part, reverse in part, and remand.
In Re: Estate of Alton Wayne Saddler -
M2003-00414-COA-R3-CV View
DeKalb County - The niece of a decedent filed a claim
against his estate, contending that she was entitled to compensation
for allowing her late uncle to live rent-free for more than four years
in a house that she inherited from another uncle. The trial court granted
her claim. We reverse.
Mark McGehee vs. Julie McGehee - E2003-01555-COA-R3-CV View
Hamilton County - In
this divorce case, Mark K. McGehee ("Father") appeals
the Trial Court's order regarding child support,
its award of primary residential parenting responsibility
to Julie A. McGehee ("Mother"), the propriety of
the Court's decision to amend its final decree
of divorce pursuant to Mother's Tenn.R.Civ.P. 60
motion and the granting of Tenn.R.Civ.P. 11 sanctions
against Father's attorney.
Debra Gorman vs. Richard Gorman - E2003-02879-COA-R3-CV View
Hamblen County - This is a post-divorce custody case
wherein the Trial Court denied the Father's petition for change of
custody and denied the Mother's petition for payment of uncovered medical
expenses and attorney fees. Both parties appealed. We have determined
that the Trial Court did not err and we affirm its decision.
R.D.T., et al vs. F.A.J. - E2003-01835-COA-R3-PT View
Greene County - F.A.J. ("Mother"), the biological
mother of E.D.J., consented to give up her newborn baby for adoption
to R.D.T. and S.A.T. ("Plaintiffs"). Within the ten day revocation
period allowed by statute, Mother changed her mind and executed a revocation.
Plaintiffs filed a verified complaint showing cause why E.D.J. likely
would suffer immediate harm to her health and safety if returned to
Mother. After a probable cause hearing, the Trial Court held E.D.J.
likely would suffer immediate harm to her health and safety if returned
to Mother and directed that E.D.J. remain with Plaintiffs. An agreed
order for a plan of care was entered. Plaintiffs later filed a petition
to terminate Mother's parental rights to E.D.J. After trial, the Trial
Court held multiple grounds for termination were proven by clear and
convincing evidence and that it was in the best interest of E.D.J.
to terminate Mother's parental rights. Mother appeals the termination
of her parental rights. We affirm.
Jeff Willard vs. Golden Gallon - E2003-02628-COA-R3-CV View
Hamilton County - This is a retaliatory discharge
case wherein the plaintiff/employee alleged that his employment was
terminated, inter alia, in violation of the Family and Medical Leave
Act and because he obeyed a lawful subpoena. The trial court granted
the employer's motion for summary judgment. The employee appealed.
We vacate the trial court's grant of summary judgment because we have
determined that (1) a claim for retaliatory discharge in violation
of Tennessee public policy lies in cases where a substantial factor
in an employer's decision to terminate an employee is the fact that
the employee honored a lawful subpoena, (2) a genuine issue of material
fact exists as to whether the employee was terminated for honoring
a lawful subpoena, and (3) a genuine issue of material fact exists
as to whether the employee was terminated in violation of the Family
Medical and Leave Act. Accordingly, we vacate the judgment of the trial
court and remand for further proceedings consistent with this opinion.
Cases posted the week of 08/02/2004
Tommy Davis Craig v. David Robert Dison -
M2003-00419-COA-R3-CV View
Cheatham County - This appeal involves an unsuccessful
plaintiff who seeks review of a jury verdict. Plaintiff argues that
the trial judge failed to perform his function as a thirteenth juror.
We agree and reverse and remand for a new trial.
Jon E. Shell vs. D. Scott King - E2003-02124-COA-R3-CV View
Sevier County - Jon and Rebecca Shell ("Plaintiffs")
sued D. Scott King ("King") after a limited liability company formed
by the three of them went out of business. Plaintiffs sought dissolution
of the company known as The Big Red Barn, LLC ("the Company" or "the
LLC"). Plaintiffs also claimed King had breached his fiduciary obligations
to both them and the LLC. The trial court referred this case to a Special
Master and after a trial, the Special Master issued a report concluding
King was negligent and had breached his fiduciary obligations and recommending
that plaintiffs be awarded a judgment which included some, but not
all, of plaintiffs' attorney fees and expert witness fees. The trial
court confirmed the report of the Special Master in all respects. We
modify the judgment of the trial court and affirm as modified.
Gwinn Fayne vs. Teresa Vincent - E2003-01966-COA-R3-CV View
Bradley County - Purchasers of real property sued
sellers and real estate company seeking rescission for tortious misrepresentation
and violation of the Tennessee Consumer Protection Act. The trial court
rescinded the transaction and dismissed the real estate company on
the basis that the salesperson was an independent contractor. Purchasers
appealed asserting: (1) the salesperson was an agent rather than independent
contractor; (2) the trial court did not place the purchasers in the
position in which they would have been since the transaction was rescinded;
and (3) the purchasers should have been awarded their attorney's fees.
We agree with the trial court that the salesperson was an independent
contractor, but modify and remand for further proceeding (1) relative
to placing the parties in the position in which they would have been
had there been no transaction and (2) concerning the allowance of purchasers'
attorney's fees.
John R. Albamont v. Town of Pegram - M2003-01624-COA-R3-CV View
Cheatham County - Owner of commercial property in
Pegram, Tennessee, filed suit against the Town of Pegram challenging
the validity of Pegram's sewer tap privilege fee, asserting that the
fee bears no reasonable relationship to the demand placed on the sewer
system and therefore is capricious, arbitrary and unreasonable. The
trial court granted summary judgment for the Town of Pegram and dismissed
the action. We find there are material facts in dispute and therefore
reverse the decision of the trial court granting summary judgment.
Keith Allen, et al v. State - M2003-00905-COA-R3-CV View
The Claims Commission awarded damages to Plaintiffs individually and
as administrators of the Estate of their son, Robert Keith Allen. The
state was held liable under Tennessee Code Annotated section 9-8-307(a)(1)(I)
and (J). We affirm the judgment of the Claims Commission.
Susan Green v. Leon Moore, et al - M2003-01015-COA-RM-CV View
Williamson County - This appeal pertains to an alleged
breach of a settlement agreement arising from a prior dispute between
the parties. The plaintiff brought this action to recover damages resulting
from an insulting remark allegedly made by an executive of her former
employer in violation of a prior settlement agreement that contained
a non-disparagement p