The following Opinions are available for download:
Cases posted the week of
03/27/2006
Richard Corley, Jr., et al. v. Nashville and Davidson County - M2004-02851-COA-R3-CV View
Davidson County - Plaintiffs filed this inverse condemnation action to recover damages due to the closure of one end of an alley abutting their property, the closure of which prevented ingress and egress to the next intersecting street. The defendant, the Metropolitan Government of Nashville and Davidson County, denied liability. It contended there was no taking of Plaintiffs’ property, that the alley was closed for public safety, and thus was an exercise of its police power. The trial court denied Metro’s pre-trial motion to dismiss. The matter proceeded to trial by jury. At the close of Plaintiffs’ proof, Metro moved for a directed verdict. The motion was denied whereupon Metro presented its case in chief. Metro did not renew its motion for a directed verdict at the close of all the proof. Accordingly, the case went to the jury, which awarded Plaintiffs $44,000 in damages. Metro appeals. We affirm.
Ann McDonald v.Nashville and Davidson County - M2004-02852-COA-R3-CV View
Davidson County - Plaintiff filed this inverse condemnation action to recover damages due to the closure of one end of an alley abutting her property, the closure of which prevented ingress and egress to the next intersecting street. The defendant, the Metropolitan Government of Nashville and Davidson County, denied liability. It contended there was no taking of Plaintiff’s property, that the alley was closed for public safety, and thus was an exercise of its police power. The trial court denied Metro’s pre-trial motion to dismiss. The matter proceeded to trial by jury. At the close of Plaintiff’s proof, Metro moved for a directed verdict. The motion was denied whereupon Metro presented its case in chief. Metro did not renew its motion for a directed verdict at the close of all the proof. Accordingly, the case went to the jury, which awarded Plaintiff $15,000 in damages. Metro appeals. We affirm.
Ahmed Usso & Genet Ayele vs. Bryan Winston - E2005-01746-COA-R3-CV View
(Dissent) - View
Washington County - Plaintiffs sued to recover earnest money tendered with a contract to purchase realty. Defendant counter-sued for breach of contract and damages. The Trial Court Ordered the return of the earnest money to plaintiffs. We affirm.
Wilner Dieudonne v. Nashville and Davidson County - M2005-00287-COA-R3-CV View
Davidson County - This action for personal injury arises out of a vehicular accident between the plaintiff and an on-duty police officer of the Metropolitan Government of Nashville and Davidson County. Plaintiff timely filed this action in the General Sessions Court; however, he failed to properly identify the defendant and service of process was returned unserved. Plaintiff did not attempt to renew service of process until after the one-year statute of limitations had run, waiting sixteen months before making his second attempt at service of process on the defendant. The trial court denied the defendant’s motion to dismiss based upon its finding the plaintiff’s delays in service of process did not constitute an abandonment of the claim. The case proceeded to trial, and the plaintiff was awarded damages. The defendant appeals contending the trial court erred by not dismissing the action. Finding the statute of limitations had run, we therefore reverse and remand with instructions to dismiss.
In Re: C.L.M. - M2004-02922-COA-R3-PT View
Davidson County - Natural mother brings this appeal from the juvenile court’s termination of her parental rights as to the minor child, C.L.M. The sole challenge to the court’s order is that, due to alleged insufficiency of process, the trial court lacked personal jurisdiction over her such that the termination of her parental rights amounted to a violation of due process. We affirm the action of the trial court.
Krystal Reed, et al vs. Tennessee Farmers Mutual - E2005-01663-COA-R3-CV View
Rhea County - Krystal Reed and Susan Beck, co-administrators of the estate of Karen D. Durham (“the decedent”), brought suit against Tennessee Farmers Mutual Insurance Company, seeking to recover a $10,000 death benefit under the terms of a policy of automobile insurance. The general sessions court found for the estate, holding that the estate had complied with the terms of the policy by submitting – in the words of the policy – “a police report or other proof establish[ing] with reasonable certainty” that the decedent was wearing a proper occupant restraint at the time of the accident. Tennessee Farmers appealed to the trial court and the estate filed a motion for summary judgment. The trial court granted the estate’s motion, holding that the policy unambiguously provides that the submission of the requisite police report was sufficient to establish Tennessee Farmers’ liability for the death benefit. The court also held that the plain language of the policy did not permit Tennessee Farmers to present any contradictory proof on the subject of whether the decedent was wearing the proper restraint at the time of the accident. Tennessee Farmers appeals, challenging this latter ruling. We affirm.
Charles Ford, Jr. vs. Valerie Ford - E2005-01772-COA-R3-CV View
Knox County - This is a divorce case. The trial court granted Charles Clayton Ford, Jr. (“Husband”) a divorce from Valerie Denise Ford (“Wife”) and awarded him primary physical custody of the parties’ two minor children. Wife was ordered to pay prospective child support. According to Husband, the children had been in his custody since the parties’ separation, almost a year and a half prior to the entry of the judgment of divorce. Despite this, the trial court failed to award any retroactive support. Husband appeals, contending that the trial court erred in failing to order retroactive child support or to file written findings as to why such support was not ordered. We affirm.
David Kellett vs. Stacy Stuart - E2005-01041-COA-R3-CV View
Hawkins County - Stacy Kellett Stuart (“Mother”) and David Allen Kellett (“Father”) were divorced in 2000. The parties agreed in the divorce that Mother would be the primary residential parent for the parties’ three daughters, and Father would be the primary residential parent for the parties’ son. During the parties’ marriage, Mother was hospitalized several times for her bipolar disorder. When Mother was hospitalized after the divorce, Father obtained temporary custody of the three girls and also sought a permanent change in their custody. Following a trial, the Trial Court concluded there was no material change in circumstances sufficient to justify a change in custody. The Trial Court further determined that it was in the best interests of the parties’ three daughters for Mother to remain as their primary residential parent. Father appeals, and we affirm.
Maynard Gordon v. Horizon Communications - M2004-02755-COA-R3-CV View
Maury County - Maynard M. Gordon d/b/a News Analysis (“Plaintiff”) sued Horizon Communications, Inc. (“Defendant”) claiming, in part, that Defendant had breached a contract with Plaintiff. After a bench trial, the Trial Court entered an order finding and holding, inter alia, that Plaintiff had materially breached the contract and, therefore, was not entitled to recover under it. The Trial Court’s order dismissed Plaintiff’s complaint. Plaintiff appeals to this Court claiming that the Trial Court erred by holding 1) that Plaintiff breached the contract; 2) that Defendant did not waive Plaintiff’s breach; and 3) that Defendant had not breached the contract. We affirm.
John Jay Hooker v. Bettye L. Nixon, et al. - M2005-01383-COA-R3-CV View
Davidson County - Plaintiff filed this action to challenge the constitutionality of the Charter provision of the Metropolitan Government of Nashville Davidson County, Tennessee that imposes term limits on certain elected offices. The defendants filed a motion to dismiss contending the plaintiff did not have standing to maintain the action because he had not sustained a private injury distinct from other voters. The trial court agreed and dismissed the complaint. Finding no error, we affirm.
Paul Gratton v. Bernadette Gratton - M2004-01964-COA-R3-CV View
Rutherford County - In this divorce action, Husband appeals the trial court’s allocation of residential time for couple’s only minor child, and Wife appeals the division of marital property and related issues. We affirm the trial court.
Lawrence Brown v. Kelly Brown - W2005-00811-COA-R3-CV View
Shelby County - This appeal involves a post-divorce dispute regarding child support and related issues. The trial court awarded Wife/Appellee all of her attorney’s fees and expenses, and couched one-half of that award as additional child support pursuant to T.C.A. §36-5-103(c)(2005). Husband/Appellant appeals asserting that the trial court erred in categorizing the attorney’s fees as child support and on the ground that the attorney’s fees are excessive. We affirm.
Joseph Harris v. Susan Taylor - W2004-02855-COA-R3-CV View
Shelby County - This appeal stems from a suit to partition real estate. In this appeal, we are asked to determine if the chancery court erred when it granted summary judgment and a judgment on the merits based on stipulated facts, evenly splitting the proceeds of the sale of property between joint tenants with rights of survivorship where one joint tenant paid more than her equitable share of the purchase money. Specifically, the appellant contends that she was entitled to contribution from the appellee for the excess of the purchase price paid by her and that she did not make a gift of the excess. In addition, Appellant requests that she was entitled to a credit of $2,000 pursuant to an interim consent order disposing of numerous issues between the parties. The appellee has requested attorney’s fees incurred as a result of this appeal. We affirm in part, reverse in part, and remand for further proceedings. We decline to award attorney’s fees to the appellee.
State DHS, et al vs. Christal Rhea - E2005-00330-COA-R3-JV View
Anderson County - The State of Tennessee, DHS, filed a petition for civil contempt against Christal J. Rhea (“Mother”) due to her failure to pay support for her minor child in state custody, Ashley J. Seeber (DOB: December 10, 1997). Mother responded by filing a petition to modify her support obligation. Following a hearing, the trial court held Mother in contempt and sentenced her to 40 days in jail; however, the court specified that she could purge herself of contempt by paying support of $1,100. The trial court then indicated that it was modifying Mother’s support award, but it failed to set a specific amount of support. Mother appeals. We affirm in part and vacate in part.
Roger Bennett & RichardCombs vs. FISA U.S.A. & Mastercard - E2005-00659-COA-R9-CV View
Washington County - Plaintiffs’ action charged defendants with violation of the Tennessee Trade Practices Act, the Tennessee Consumer Protection Act, and unjust enrichment for monies had and received. Responding to Motions to Dismiss, the Trial Court dismissed the statutory violations claims, but retained jurisdiction over the common law violation claims. We granted the parties’ interlocutory appeals and dismiss the action.
John L. Medearis vs. Bonnie Baumgardner - E2005-01785-COA-R3-CV View
Hamilton County - The mother sued to enforce Agreement with the father to pay college expenses for adult child of the parties. The Trial Court refused to enforce the terms of the Agreement on the equitable grounds of unclean hands and the lack of cooperation and fair dealings by the mother. We affirm.
Robert E. Smith vs. Kwik Fuel Center , et al - E2005-00741-COA-R3-CV View
Knox County - Mr. Smith, a truck driver, was terminated by his employer and charged with theft after the manager of a fuel station where plaintiff regularly purchased fuel advised his employer that Mr. Smith was misusing employer’s credit card to obtain cash and merchandise. After being acquitted of theft charges, Mr. Smith filed claims against his employer for malicious prosecution and against the fuel station owner for malicious prosecution and intentional interference with employment. The trial court granted the fuel station owner’s motion for summary judgment with respect to Mr. Smith’s claim for malicious prosecution. Subsequently, the trial court also entered directed verdict for fuel station owner as to Mr. Smith’s claim of intentional interference with employment and for his employer as to Mr. Smith’s claim of malicious prosecution. We affirm the trial court’s summary judgment and directed verdicts in favor of the defendants.
Marian L. Crull vs. Donald R. Crull - E2005-02430-COA-R3-CV View
Knox County - This declaratory judgment action was filed by Donald R. Crull (“Husband”) on November 4, 2003. It seeks primarily a declaration as to the rights of Husband’s former spouse, Marian L. Crull (“Wife”), in and to Husband’s United States Department of Agriculture (“USDA”) retirement benefits, a subject addressed in the parties’ judgment of divorce entered in the trial court some 14 years and 3 months earlier, i.e., on July 11, 1989. In addition, Husband’s complaint seeks to terminate his alimony obligation effective when he retires at some unspecified time in the future. The trial court – interpreting the language of the judgment of divorce – held that the language mandates that Wife is entitled, without limitation, to one-half of Husband’s retirement benefits. The court, in its judgment, did not grant or deny Husband’s request for termination of his alimony obligation; but, in the incorporated memorandum opinion, the court did opine that Husband’s retirement, when it happens, would constitute a change in circumstances. Husband appeals, arguing that Wife’s entitlement with respect to the retirement benefits should be limited to a share of the benefits that accrued before the divorce. Wife, by way of a separate issue, contends that the trial court erred in stating that a retirement, which has not yet occurred, would constitute a change in circumstances when it takes place. We vacate this latter observation by the trial court but otherwise affirm the judgment.
State DHS, et al vs. William Thomason - E2005-00327-COA-R3-JV View
Anderson County - The State of Tennessee, DHS, filed a petition for civil contempt against William (Billy) Thomason (“Father”), alleging that he failed to pay support for his minor children, Billy H. Phillips (DOB: January 14, 1992) and Dakota J. Phillips (DOB: May 10, 1994). At a hearing in 2004, the trial court found Father in civil contempt and sentenced him to 20 days in jail. The sentence was “suspended” so long as Father continued to pay the court-ordered support. The trial court specified in that earlier order that Father could purge himself of the contempt by paying support of $661. At a subsequent hearing in February, 2005, the trial court entered a new judgment of civil contempt; it sentenced Father to a total of 30 days in jail, which sentence included the previously-suspended sentence of 20 days. The court ordered that Father could purge himself of this most recent finding of contempt by paying a total of $916 in support, which amount included the previous purge amount of $661. Father appeals, arguing that the trial court erred in its new finding of contempt and in imposing the previously-suspended sentence. We affirm in part and reverse in part.
Paula B. Bowman v. State - M2004-01318-COA-R3-CV View
This appeal involves a visitor who was injured when she slipped and fell in an icy parking lot at a State office building in Nashville. The visitor filed a claim with the Tennessee Claims Commission pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(C) (Supp. 2005) asserting that the State had negligently failed to monitor the local weather forecasts and to initiate timely protective measures to prevent or to remove ice from the parking lot. Following an en banc hearing, the Commission found that the State did not have sufficient notice of the icy parking lot and had no duty to constantly monitor weather conditions. The Commission dismissed the visitor’s claim, and the visitor appealed. We affirm the Commission’s order dismissing the claim.
In Re: Austin S. - M2005-01839-COA-R3-JV View
Rutherford County - This appeal involves the custody of an eight-year-old child. The Rutherford County Juvenile Court initially granted the parents equal custody. However, after the child was diagnosed with Attention Deficit Hyperactivity Disorder, the child’s mother filed a petition asserting that a material change of circumstances existed and that she should be designated the child’s primary residential parent. The child’s father agreed that the circumstances had changed and also sought to be designated as the child’s primary residential parent. Following a bench trial, the juvenile court found that a material change of circumstances had occurred and that the child’s interests would be best served by designating the father as the child’s primary residential parent. The mother has appealed. We affirm the juvenile court.
C. Noelle Chaffin v. Marcus Ellis - M2003-01620-COA-R3-CV View
(Order withdrawing earlier opinion) - View
Williamson County - This is a divorce and child custody case. The husband and the wife were married in February 1998. Throughout the marriage, they lived together with the husband’s mother. The parties’ relationship began to deteriorate soon after the wedding. The wife felt that the husband and his mother were controlling and oppressive, while the husband felt that the wife was unfit. One child was born of the marriage. In October 2000, the wife filed the instant petition for divorce. After a nine-day trial, the trial court granted a divorce to the wife on the ground of inappropriate marital conduct, and designated the wife as the primary residential parent of the parties’ child. The trial court also awarded the wife a portion of her attorney’s fees and discretionary costs. From that decision, the husband now appeals. We vacate a portion of the award of costs, and affirm as to the remaining issues, finding that the evidence preponderates in favor of the trial court’s opinion in all other respects. The cause is remanded for reconsideration of a portion of the award of costs for expert fees.
Cases posted the week of
03/20/2006
Betty Walker vs. Cleo HUff, et al - E2005-01096-COA-R3-CV View
Cocke County - In this adverse possession case, the primary
issues presented are whether the trial court correctly ruled that the plaintiff,
Betty Walker, had established prescriptive title to the real property at
issue by open, exclusive, uninterrupted, and hostile possession for longer
than 20 years; and whether the trial court correctly ruled that the defendants,
the heirs of the Huff family, had established a prescriptive easement for
access to part of their land via a roadbed passing across real estate owned
by the Walker family. Our review of the record indicates that the trial court’s
resolution of these factually-driven issues was heavily dependent upon its
assessment of the credibility of the various witnesses, and that the evidence
does not preponderate against the trial court’s conclusions. We consequently
affirm the judgment of the trial court.
Mary Ann Baines v. Gregory Todd Baines - M2004-02730-COA-R3-CV View
Davidson County - In this divorce proceeding, the mother
of the parties’ only child seeks
to declare void an order of the Circuit Court of Davidson County awarding
father custody of the parties’ child. She contends the Juvenile Court
of Wilson County had exclusive jurisdiction because a dependent and neglect
proceeding had been commenced. We have determined the Juvenile Court had
relinquished its jurisdiction over the child and therefore affirm the judgment
of the Circuit Court.
In Re: Giorggianna H., Stuart H., Sabrina
H., Savannah H., Victoria H., Benjamin
H., & Sarahanna H. - M2005-01697-COA-R3-PT View
(Concur) - View
Perry County -This appeal involves the parental rights of
the biological parents of seven minor children. After the children had been
removed from their biological parents’ custody for approximately one
year, the Tennessee Department of Children’s Services filed a petition
in the Circuit Court for Perry County seeking to terminate the parental rights
of the biological parents. The trial court conducted a bench trial and then
entered an order terminating the biological parents’ parental rights
because the conditions that caused the children to be removed from the parents’ custody
continued to persist and because the parents had committed severe child abuse.
Both parents appealed. We have determined that the record contains substantial
and material evidence supporting the trial court’s conclusions that
the biological parents’ conduct provides substantive grounds for terminating
their parental rights and that the termination of the biological parents’ parental
rights is in the children’s best interests.
State of Tennessee, Tennessee Department
of Children's Services v. D.H., et al. - M2004-01043-COA-R3-JV View
(Dissent) - View
Perry County - After a hearing, the Circuit Court declared
seven children to be dependent and neglected and determined that their parents
had committed severe child abuse. The parents claim on appeal that the court
erred by refusing their request that counsel be appointed to represent them
at the hearing. After carefully reviewing the record, we find that the trial
court failed to conduct a sufficient inquiry to determine whether or not
the parents were financially able to retain their own counsel, and we accordingly
vacate the order concluding that the children were dependent and neglected.
Leslyn Elizabeth Miller Ballew v. John
Michael Ballew - W2005-00337-COA-R3-CV View
Shelby County - In this appeal, we are asked to determine the validity of a consent judgment
entered by the chancery court granting a divorce to the parties. At trial,
the parties voluntarily submitted their case to mediation. At the conclusion
of the mediation, the mediator dictated the settlement terms onto a tape
recorder, and the parties acknowledged onto the tape recorder that these
terms were the understanding of the parties. The chancery court found that
this acknowledgment was a modification of the mediation agreement and that
the parties entered into a settlement agreement. On appeal, the husband asserts
that the chancery court erred finding a settlement agreement because the
mediation agreement specifically required that the parties would not be bound
unless a written, executed settlement agreement was entered into by the parties.
Second, the husband contends that, even if an oral settlement agreement was
effective against the parties in this case, he had properly repudiated the
agreement to his wife and the chancery court before the chancery court entered
its judgment. In addition, both parties have requested attorney’s fees
on appeal. We reverse and remand for further proceedings and decline to award
attorney’s fees to either party.
Kerry C. Lyons v. Gregory M. Lyons - W2004-02907-COA-R3-CV View
Shelby County - The trial court determined a material change
of circumstances had occurred which warranted modification of the parties’ child
visitation scheduled. Father appeals. We affirm.
In the Matter of: J.M.F. - M2005-02017-COA-R3-PT View
Grundy County - Mother appeals the termination of her parental
rights to her child, J.M.F. The trial court terminated Mother’s parental
rights on the grounds of failure to remedy persistent conditions, substantial
noncompliance with permanency plans and abandonment by failing to visit and
failing to provide support. The trial court also found the termination of
Mother’s parental rights was in the child’s best interest. We
affirm the trial court’s termination of parental rights based upon
Mother’s failure to remedy persistent conditions and substantial noncompliance
with permanency plans.
Tammy D. Norris, et al. v. James Stuart,
et al. - M2004-01839-COA-R3-CV View
Wilson County - This appeal arises from the dissolution
of a two-person general partnership. The partnership dissolved in 2000 upon
the death of David Norris; however, instead of winding up the affairs of
the partnership, the surviving partner, James Stuart, continued to operate
the business without accounting to Norris’ estate. Nine months after
the death of Norris, his estate filed this action seeking an accounting of
the partnership, liquidation of its assets, and settlement of accounts. The
partnership assets included an on-going business and real estate. The trial
court appointed a receiver to take control of the assets. After the receiver
provide a report, the trial court ordered the receiver to wind up the affairs
of the partnership and to sell its assets. The court also allocated partnership
liabilities and assets between Stuart and the estate from which order Stuart
appeals. We affirm the trial court in all respects.
Joan Oates vs. Chattanooga Publishing Co.- E2005-00778-COA-R3-CV View
Hamilton County - Joan Oates (“Plaintiff”)
was employed by the Chattanooga Publishing Company (“Defendant”)
for approximately twenty-three years. In January of 2004, Plaintiff was observed
on Defendant’s security camera making obscene gestures with her middle
finger toward the camera and then covering the security camera with a cup
for a period of time. Defendant terminated Plaintiff’s employment.
Plaintiff filed this lawsuit alleging that she was terminated because of
a disability. Plaintiff also claimed that she was subjected to a hostile
work environment and malicious harassment while employed by Defendant. Plaintiff
also sued for intentional and/or negligent infliction of emotional distress.
The Trial Court granted Defendant’s motion for summary judgment on
all of Plaintiff’s claims. Plaintiff appeals, and we affirm.
United Color Lab & Digital Imaging v. United Studios - W2005-00133-COA-R3-CV View
Shelby County - In this case we are asked to review a trial court’s decision to hold the defendant in contempt of the court’s order. After the plaintiff filed its lawsuit to recover amounts allegedly owed on certain invoices, the trial court ordered the defendant to file a sworn statement setting forth any amounts it believed it owed to the plaintiff and the “basis” for that statement. The defendant submitted the affidavit of its president who asserted that it owed nothing to the plaintiff and that plaintiff breached the parties’ contract. The defendant subsequently filed an answer denying it owed the money and filed a counter-complaint for breach of contract, tortious interference with contract, and fraud. The plaintiff filed a petition seeking to hold the defendant in contempt of the court’s order, asserting that the affidavit filed by the defendant did not set forth specific facts. The chancery court granted the motion and found the defendant in contempt of the order holding that the affidavit did not contain enough “detail” as required by the order. The defendant appealed to this Court. We reverse.
Gary L. Harvey, et al vs. Stanley F. LaDuke,
et al - E2005-00533-COA-R3-CV View
Knox County - Appellant filed an action for relief from
a Judicial Commissioner’s
refusal to issue Tenn. R. Crim. P. 4(a) criminal process to a private citizen
without the filing of a police report. The primary issue before this court
is whether Rule 20 of the Rules of Procedure of the General Sessions Court
of Knox County, Tennessee, which relates to the duty of a Judicial Commissioner,
is inconsistent with Tenn. R. Crim. P. 4(a) and, thus, invalid. The trial
court granted summary judgment to all defendants on each of Appellant’s
causes of action. Because we find Rule 20 to be invalid, we affirm in part,
reverse in part, and remand for further proceedings.
James L. Williams, et al vs. Jordan Lee Fox - E2004-03027-COA-R53-CV View
Sevier County - James L. Williams, Brenda G. Williams, Charles
Roberson, and Marjorie Roberson (“Plaintiffs”) sued Jordan Lee
Fox (“Defendant”)
claiming, in part, that defendant was constructing a mobile home/modular
home in the Oma Lee Williams subdivision in violation of the subdivision
restrictions. Plaintiffs sought, among other things, a restraining order
prohibiting defendant from constructing and completing the mobile home/modular
home. The case proceeded to trial. The trial court entered an order finding
and holding, inter alia, that the structure in question is a modular home
and that under existing case law defendant was in violation of the subdivision
restrictions. The trial court awarded plaintiffs a permanent injunction
and ordered defendant to remove the structure. Defendant appeals to this
Court claiming, in part, that the existing case law upon which the trial
court based its decision dealt with double wide or manufactured homes, not
modular homes. We affirm.
Health Cost Controls, Inc. v. Ronald
Gifford - W2005-01381-COA-R3-CV View
Weakley County - This is not the first time this case has
been on appeal. In this appeal, we are asked to determine if the chancery
court erred when it found that an insured individual was made whole by a
settlement agreement with a third party tortfeasor so as to require the insured
to reimburse his insurer. Specifically, Appellant contends that the chancery
court erred in finding that the insured was not made whole because it failed
to use the formula method used by federal courts for determining whether
an insured is made whole and failed to engage in an analysis of the dollar
amounts of the insured’s recovery and
losses. We reverse and find that the insurer is entitled to reimbursement
from the insured.
State of Tennessee, ex rel. Dana Monique
Smith v. John Newton Ford - W2005-00564-COA-R3-CV View
Shelby County - The trial court awarded Petitioner child support for one child in accordance
with the child support guidelines. Respondent appeals, asserting the trial
court erred by failing to deviate from the child support guidelines. We affirm.
Cases posted the week of 03/13/2006
Tennessee Farmers Life vs. Linda S. Rose, et al - E2005-00006-COA-R3-CV View
(Dissent) - View
Morgan County - Tennessee Farmers Life Reassurance Company
(“Tennessee Farmers”) brought this interpleader action seeking judicial guidance as to the person or persons entitled to receive benefits under a policy of insurance insuring the life of Brenda Gail Langley (“the deceased”). The deceased designated three of her four children and a grandchild as the beneficiaries of the policy; however, prior to the deceased’s death, her sister, Linda Sue Rose, acting under her authority as attorney in fact for the deceased, changed the beneficiary of the policy to herself. After the death of the deceased, Ms. Rose, the three children, and the deceased’s grandchild, Ethan E. Langley, all asserted rights to the proceeds of the subject policy. The trial court granted summary judgment to the deceased’s children and grandchild, finding that they were entitled to the proceeds because – as found by the trial court – Ms. Rose did not have the authority under the deceased’s
power of attorney to change the beneficiary on the policy. Ms. Rose appeals.
We affirm.
Teresa Carpenter v. Timothy Klepper, et al. - M2004-02951-COA-R3-CV View
Montgomery County - Plaintiff filed a medical malpractice action against doctor and his employer. The jury returned a verdict in favor of Defendants. Plaintiff appealed the admission into evidence of expert testimony offered by two physicians under the locality rule and the award of certain discretionary costs. The judgment of the trial court is reversed and the case remanded for a new trial.
Steven Hughes vs. NECX Disciplinary Board, et al - E2005-01972-COA-R3-CV View
Johnson County - Steven Hughes, a prisoner in state custody,
filed a petition for writ of certiorari in the trial court, alleging that
the prison disciplinary board (“the board”) abused and exceeded its authority when it found him guilty of intent to have drugs sent into the prison. The defendants filed a motion to dismiss, asserting that the plaintiff’s petition failed to meet certain specific constitutional and statutory requirements. The trial court granted the defendants’ motion.
The plaintiff appeals. We affirm.
William Current v. Brenda Current - M2004-02678-COA-R3-CV View
Maury County - This case concerns the equitable division
of a marital home following the termination of a sixteen- year marriage.
Husband appealed the trial court’s decision to award Wife all the interest in the home as well as attorney’s
fees. We affirm the judgment of the trial court in all respects.
Deborah Bell v. Billy Goforth, et al. - M2004-00997-COA-R3-CV
View
Davidson County - This appeal involves a former employee’s efforts to collect a judgment against two defunct corporations. The employee filed a Title VII complaint against the two corporations in the United States District Court for the Middle District of Tennessee and obtained a default judgment against them. A federal jury thereafter awarded the employee a $928,556 judgment against the two corporations. Three years later, the employee sued one of the corporations and two of its officers in the Chancery Court for Davidson County alleging that they had fraudulently transferred corporate assets to place them beyond her reach. One of the officers filed a motion for summary judgment based on the three-year statute of limitations in Tenn. Code Ann. § 28-3-105
(2000). The trial court granted the motion, and the employee appealed.
We have determined that the claims against the corporate officer should
have been dismissed, not because of the statute of limitations, but
because the undisputed facts demonstrate that the officer played no
role in the disposal of the corporate assets.
Harding Academy v. Nashville & Davidson County - M2004-02118-COA-R3-CV
View
Davidson County - Harding Academy, a private elementary
and middle school located in Nashville, Tennessee, acquired neighboring
real property with the intention of constructing athletic fields for
use by its student body. The local neighborhood association began to
voice its disagreement with the planned use of the property. On April
10, 2003, the councilwoman representing the district filed an application
with the planning commission seeking to have a historic conservation
overlay imposed on the area. On May 6, 2003, Harding Academy received
nine permits to demolish the houses occupying the property it acquired.
On May 8, 2003, the Metropolitan Government of Nashville and Davidson
County, through its codes department, informed Harding Academy that
its permits were being revoked. In revoking the permits, the local government
relied on the “pending ordinance doctrine,” citing the councilwoman’s pending application. Harding Academy appealed to the Board of Fire and Building Code Appeals, which affirmed the revocation. Thereafter, Harding Academy filed for a writ of common law certiorari in the Chancery Court of Davidson County. The chancellor reversed the board’s decision, holding that the local government could not rely on the “pending ordinance doctrine” to revoke the permits because the historic conservation overlay was not sufficiently “pending” at the time of the revocation. Accordingly, the chancellor ordered the codes department to re-issue the permits. The local government appealed the chancellor’s decision to this Court. We affirm the chancellor’s
ruling, but for reasons different from those set forth by the chancery
court.
William Steele, et al. v. Richard Berkman - M2005-02935-COA-R9-CV
View
Davidson County - This application for an interlocutory
appeal concerns the waiver of Tennessee Code Annotated section 29-26-115(b)’s requirement that an expert witness in a medical malpractice case have practiced in a contiguous bordering state within the year preceding the date that the alleged injury or wrongful act occurred. The Circuit Court for Davidson County determined that the plaintiffs’ expert had not practiced in a contiguous bordering state within the year preceding the injury, but granted the plaintiffs a waiver of the requirement. The Circuit Court subsequently granted the defendant permission to appeal to this Court pursuant to Tennessee Rule of Appellate Procedure 9. We concur with the Circuit Court that this is an appropriate case for an interlocutory appeal. Because the plaintiffs failed to demonstrate that the appropriate witnesses would not otherwise be available as required by Tennessee Code Annotated section 29-26-115(b), we reverse the Circuit Court’s order denying the defendant’s motion to strike the plaintiffs’ expert.
Phillip B. Flowers, Sr., et al v. Southern Hills Medical Center - M2004-02126-COA-R9-CV View
Davidson County - This is an interlocutory appeal arising
out of a medical negligence action filed by Phillip Flowers and his
children against HCA Health Services of Tennessee. Flowers and his children
brought an action for medical negligence against HCA for the death of
Edith Flowers, wife and mother, who died due to a morphine overdose
while under the care of HCA’s employees at Southern Hills Medical Center. Plaintiffs’ negligence action was based in part on the doctrine of res ipsa loquitur. HCA filed a motion to summarily dismiss the res ipsa loquitur claim, contending Plaintiffs could not prevail on that claim due to their concession the morphine pump was not defective. The trial court granted HCA’s
motion for summary judgment as to that issue. We now reverse.
Roger Parker, et al. v. Bedford County Election Comm., et al. - M2006-00431-COA-OT-CV View
Bedford County - This appeal involves an incumbent sheriff’s efforts to qualify for re-election and to have his name placed on the May 2006 Democratic primary ballot. The Bedford County Election Commission declined to place the sheriff’s name on the ballot because he had not filed documents with the Tennessee Peace Officers Standards and Training Commission within the time required by Tenn. Code Ann. § 8-8-102(b)(1) (2002). The sheriff filed a petition with the Chancery Court for Bedford County seeking to enjoin both the Bedford County Election Commission and the Tennessee Peace Officers Standards and Training Commission from excluding his name from the ballot. The trial court denied the request for injunctive relief, and the sheriff appealed. We have determined, based on the circumstances of this case, that the defendants are estopped from relying on the sheriff’s noncompliance with Tenn. Code Ann. § 8-8-102(b)(1)
to keep his name off of the May 2006 ballot because of the failure of
the Bedford County election administrator to provide the sheriff with
accurate and complete information regarding the qualifications for re-election.
Dwight O'Brien Jackson v. Darcilla Jackson - E2005-01690-COA-R3-CV View
Hamblen County - The wife sued the husband for divorce
and the Trial Court granted the wife a divorce, divided the parties’ marital
assets and awarded the wife alimony in futuro. The husband appealed the
award of alimony in futuro. We affirm.
State ex rel. Gwender Taylor v. Ian Taylor, Sr. - W2004-02589-COA-R3-JV View
Shelby County - This action stems from a petition for child support and a subsequent petition to modify child support. In this appeal, the appellant has presented numerous issues for review. However, this Court finds one issue dispositive of the case: whether the trial court complied with Tennessee Rule of Civil Procedure 58 when it entered its order establishing child support and its subsequent order modifying child support. We dismiss this appeal and remand for entry of both orders pursuant to Tennessee Rule of Civil Procedure 58.
Cases posted the week of
03/06/2006
Shepard Barbash vs. Monty Bruell & Anthony Smith - E2005-00387-COA-R3-CV View
(Concur) - View
Hamilton County - Defendant’s Tenn. R. Civ. P. 60 Motion to be relieved of the Trial Court’s Judgment was denied. On appeal, we affirm on the ground that the Motion was untimely filed.
In The Matter of : N.T.B. - E2005-01246-COA-R3-CV View
Johnson County - The State of Tennessee Department of Children’s Services (“the State”) filed a Petition for Temporary Custody of N.T.B. (“the Child”) in July of 2002, alleging, among other things, that the Child was abused and/or dependent and neglected. The Juvenile Court held that the Child was a dependent and neglected child within the meaning of the law and awarded temporary custody of the Child to the State. Reba Johnson (“Mother”) and Michael Blevins (“Father”) appealed the Juvenile Court order to the Circuit Court (“Trial Court”), and the case was tried. After trial, the Trial Court found and held, inter alia, that the Child was a dependent and neglected child within the meaning of the law and that the Child had suffered severe abuse pursuant to Tenn. Code Ann. § 37-1-102(b)(21)(A) while in the care of his parents. Mother and Father appeal. We affirm.
Beneficial Tennessee, Inc. v. Metropolitan Government, et al. - M2004-01071-COA-R3-CV View
Davidson County - The trial court held that the due process clause of the Fourteenth Amendment was violated by sending notice to a mortgagee of an impending tax sale of the mortgaged property by regular mail. We reverse.
Estate of Audrey Moore v. National Health Realty, Inc., et al. - M2006-00233-COA-R10-CV View
DeKalb County - We granted this Tenn. R. App. P. 10 application for an extraordinary appeal for the sole purpose of considering whether the trial court erred in permitting the plaintiff to amend its complaint to add six additional defendants after the applicable statute of limitations had expired. The plaintiff relies on the relation-back provisions of Tenn. R. Civ. P. 15.03 to save its claims against the new defendants. We conclude that there was no mistake concerning the identity of the proper parties and that the new defendants had no notice that they would have been named in the suit but for such a mistake as required by Tenn. R. Civ. P. 15.03. Accordingly, we vacate the trial court’s November 15, 2005 order allowing the amendment.
Jimmy D. Jones, Jr. v. Patricia Ann Jones - M2004-02687-COA-R3-CV View
Montgomery County - In this divorce case, the issue presented is whether the trial court erred in awarding the wife periodic alimony in the amount of $2,000 per month for three years and “arrearages of temporary back support” in the amount of $9,318. We affirm the judgment of the trial court as to the amount of monthly alimony awarded; however, we modify the award to designate it as rehabilitative alimony rather than periodic alimony. We further hold that there can be no arrearage of temporary spousal support when there was no order prior to the final divorce hearing awarding the wife temporary support. However, we hold that the award to wife of $9,318 in alimony is appropriate, but should be modified to properly classify it as alimony in solido.
Jim Sowell v. Linda Christy - M2004-02186-COA-R3-CV View
Dickson County - A client lost confidence in the attorney she hired to represent her in a workers’ compensation action after he had put about five hours of effort into her case and before he filed a complaint. She discharged him and subsequently retained another attorney, who filed a complaint on her behalf. The first attorney filed an intervening complaint to protect his right to payment. The second attorney helped the woman settle her claim for about $46,000. After a hearing on the intervening complaint, the trial court granted the first attorney a quantum meruit award of $742.90. The attorney argues on appeal that he is entitled to 20% of his former client’s recovery, pursuant to his contingency contract. Because the court had the authority under the workers’ compensation statute not to approve an unreasonable fee, we affirm.
Tavares Ford v. Toys R Us, Inc. - W2005-01117-COA-R3-CV View
Shelby County - In this appeal, we are asked to determine whether the circuit court erred when it dismissed the appellant’s class action suit based on lack of standing and primary jurisdiction. On appeal, the appellant asserts that she had standing to bring her suit and that the circuit court should not have declined to exercise jurisdiction based on the doctrine of primary jurisdiction. We affirm.
Alexander Stratienko vs. Chattanooga-Hamilton County Hospital Auth., et al - E2005-01043-COA-R9-CV View
Hamilton County - This Tenn. R. App. P. 9 interlocutory appeal involves the interpretation of the Tennessee Peer Review Law of 1967, Tenn. Code Ann. § 63-6-219. After Alexander A. Stratienko, M.D. (“Plaintiff”) filed this lawsuit against the Chattanooga-Hamilton County Hospital Authority and its Chief of Staff, Plaintiff submitted a discovery request seeking credentialing information pertaining to another physician. The Peer Review Statute grants very broad confidentiality privileges to peer review committees and information provided to those committees. However, the statute exempts from that privilege “records made in the regular course of business by a hospital or other provider of health care and information, [and] documents or records otherwise available from original sources ….” The Trial Court determined that the requested documents were covered by this statute but were not covered by this exception and, therefore, were privileged, and denied Plaintiff’s motion to compel. We vacate the judgment of the Trial Court and remand for further proceedings.
Louis J. Federico v. Aladdin Industries. - M2004-01693-CA-R3-CV View
Davidson County - This appeal arises from the second civil action between these parties. In both civil actions, Mr. Federico brought suit against Aladdin Industries for breach of a written employment agreement. In the first action, Federico only sought recovery of a bonus. In this second action Federico seeks to recover the value of a so-called “phantom unit” equity plan provided for in the employment agreement. Both claims were based on the same employment agreement. Aladdin filed a motion for summary judgment contending res judicata barred this second action. The trial court granted Aladdin’s motion, and we affirm.
Keith Greene vs. Clara Greene - E2005-01394-COA-R3-CV View
Hawkins County - The issue presented in this post-divorce case involves the interpretation of a provision in the divorce decree allowing the wife to keep the mobile home she was awarded in the divorce on the land the husband received in the divorce for “as long as she needs to or has any desire to do so.” The husband initiated this action seven years after the divorce, asserting that the provision should be construed as an award of periodic alimony, which should be terminated due to the wife’s remarriage. The trial court held that the provision was unambiguous, was part of the division of the marital estate and not alimony, and was consequently not modifiable. We affirm the judgment of the trial court.
Ruby Pope v. Ervin Blaylock, et al. - W2004-02981-COA-R3-CV View
Shelby County - This is a premises liability case arising from Plaintiff/Guests’ fall over a landscaping wall while walking down Defendants/Homeowners’ walkway after dark. The trial court granted summary judgment to Defendants/Homeowners. Finding that there is a dispute of material fact as to whether the lighting conditions created a dangerous condition on the Defendants/Homeowners’ property, and that McIntyre requires a comparison of the respective negligence of the parties, we reverse and remand.
Sun-Drop Bottling Co. v. Herb Helton - M2004-02152-COA-R3-CV View
Giles County - In this Declaratory Judgment action, the Trial Court held the contracts the parties were operating under were “at will” contracts. Defendant has appealed. We affirm.
Jack Trotter, et al vs. Grand Lodge F. & A.M. - E2005-00416-COA-R3-CV View
Hamilton County -
The plaintiff in this case sued the fraternal organization of which he was a member for defamation and violation of due process in connection with his removal from an administrative office he held in one of the organization’s lodges. The plaintiff alleged defamatory statements related to his removal were contained in a letter and dispensation read to members of the organization and in a pamphlet subsequently distributed at the organization’s annual meeting. The trial court granted the defendant’s motion for summary judgment. We affirm summary judgment in part upon grounds that the allegedly defamatory statements contained in the letter and dispensation were not published and upon grounds that the plaintiff failed to present any evidence showing that the defendant’s actions were state actions or actions taken under color of state law as is required in a cause of action for violation of due process. We reverse summary judgment in part upon grounds that a factual issue exists as to whether the allegedly defamatory statements contained in the pamphlet were published and/or were conditionally privileged.
Dept of Children's Services vs. A.M.H., et al - E2005-01816-COA-R3-PT View
Sullivan County - This is a parental rights termination case. A.M.H. (“Mother”) appeals the trial court’s decision terminating her parental rights to her four children. On appeal, Mother argues, inter alia, that the “special judge” lacked judicial authority to terminate parental rights and that the evidence preponderates against the trial court’s finding that grounds for termination exist and that termination is in the best interests of the children. We conclude that the “special judge” must be considered a de facto judge with authority to preside over this juvenile court matter and that the record contains sufficient evidence to support the trial court’s decision. Therefore, we affirm.
Cases posted the week of
02/27/2006
Mark Cowan vs. Kim Hatmaker - E2005-01433-COA-R3-CV View
(Concur) - View
Anderson County - The father filed a Petition to Change Custody of child from the mother to the father, alleging change of circumstances. Following trial, the Trial Court refused to order a change of custody, but modified the Parenting Plan. On appeal, we affirm.
David Manis, et ux., vs. Kenneth Gibson, et ux - E2005-00007-COA-R3-CV View
Sevier county - In an action for damages caused by flooding, the Trial Court invoked comparative fault, awarded damages, and ordered defendants to correct conditions which caused the flooding. Both parties appealed. We affirm.
Charles H. Weeks, et al. v. Ray Scott, et al. - W2005-00584-COA-R3-CV View
McNairy County - The chancery court awarded Plaintiffs Weeks damages for the taking of trees by the City of Eastview. Eastview appeals, and we vacate the award of damages against Eastview for lack of subject matter jurisdiction. On cross-appeal, Weeks assert the trial court erred in failing to assess damages against Defendant Ingram and in determining Weeks had impliedly dedicated a roadway known as Autumn Lane as a public roadway. We modify and affirm on these issues.
Sharon Lamb v. Clyde Lamb, Jr. - M2004-01768-COA-R3-CV View
Marshall County - The trial court granted a divorce to both parties and divided the marital property equally. The husband argues on appeal that the trial court erred by classifying as the wife’s separate property a life estate in a house and a farm which she had inherited from her grandmother. In the alternative, he argues that the trial court should at least have classified the increase in the value of the farm as marital property, and awarded half of that increase to him. We affirm the trial court.
Robert Payne v. Janet Pelmore, et al. - M2004-02281-COA-R3-CV View
Davidson County - Inmate filed a medical malpractice, negligence, and deliberate indifference claim against health care providers and administrative personnel at the Middle Tennessee Correctional Complex, the South Central Correctional Facility, and the Tennessee Department of Correction regarding the treatment of his Hepatitis C condition. The trial court granted Defendants’ motions for summary judgment, dismissing all of inmate’s claims. Inmate appealed the decision of trial court. The Court affirms the judgment of the trial court in all respects.
John Allen Const. v. Jerome & Sandra Hancock, & Carroll Bank and Trust - W2004-02920-COA-R3-CV View
Benton County - This is a construction case. The defendant homeowners entered into an oral contract with the plaintiff contractor to construct a house for the defendants. After the contractor had substantially completed construction of the house, the homeowners discharged the contractor. The contractor then filed suit for unpaid costs and fees. The defendant homeowners counter-sued, alleging breach of the original contract. After a trial, the trial court entered a final order granting a monetary award to the contractor for his unpaid fees, minus several credits awarded to the defendant homeowners. The record does not include any factual findings or legal conclusions detailing the basis for the award. The defendant homeowners appeal, asserting that the trial court erred in admitting the testimony of an expert witness and in its calculation of the award to the contractor. We affirm the trial court’s admission of the expert testimony, but vacate the judgment and remand to the trial court for factual findings and legal conclusions in order to resolve the remaining issues on appeal.
AmSouth Bank v. Anna Cunningham - M2004-02376-COA-R3-CV View
Coffee County - Anna Cunningham, the wife of a comatose veteran who suffered a stroke at a Veterans’ Administration Medical Center in 1997, was appointed conservator of the estate and person of her husband at the inception of the conservatorship in 1997. In 2000, AmSouth Bank filed a petition to be appointed conservator of the estate of the ward, contending Mrs. Cunningham was not properly attending to the ward’s financial affairs. The bank was appointed conservator of his estate to serve along with Mrs. Cunningham who would continue to serve as conservator of the person. No appeal was taken from that order. Thereafter, a power struggle between the co-conservators ensued concerning the civil action Mrs. Cunningham commenced and was maintaining in federal court on behalf of the ward and herself against the Department of Veterans’ Affairs. Countervailing pleadings were filed by the co-conservators. The bank sought exclusive control over the federal litigation and Mrs. Cunningham sought to remove the bank as a conservator. Following a brief hearing, the probate court designated AmSouth as having “exclusive control” of the ward’s interest in the federal litigation. Mrs. Cunningham appeals contending she was entitled to an evidentiary hearing prior to any modification of her powers as a conservator and that she was denied an evidentiary hearing on her petition to remove AmSouth. We affirm the probate court’s decision to act expediently in its continuing supervision of the conservatorship based upon what it believed to be the ward’s best interest; however, we remand Mrs. Cunningham’s petition to remove AmSouth as a conservator, finding the record sufficient to entitle her to an appropriate hearing.
Phillip Dorrough v. Bd of Probation & Parole - M2004-01696-COA-R3-CV View
Davidson County - This appeal involves a prisoner’s challenge to a decision of the Tennessee Board of Probation and Parole and the application of a 1997 amendment to Tenn. Code Ann. § 40-28-105, which was subsequent to his conviction, that requires four votes in favor of parole for prisoners convicted of certain crimes to be paroled. The statute previously required only three favorable votes in order to be paroled. The prisoner contends the part of the amendment that specifies it applies to persons “who may now be serving a sentence in a state or county correctional facility” violates statutory law as well as the ex post facto clauses of the United States Constitution and the Tennessee Constitution. The Chancery Court dismissed the complaint. We affirm.
In the Matter of: Estate of Roosevelt Dukes - M2004-00340-COA-R3-CV View
Lincoln Couty - The matters at issue pertain to claims made against a decedent’s estate. Nell Shubert timely filed four claims against the Estate of Roosevelt Dukes for: (1) the balance owing on two promissory notes, (2) property taxes paid on behalf of the decedent, (3) rent on real property, and (4) the purchase of a bush hog. The executrix filed exceptions to all claims. After the time passed for filing claims, Ms. Shubert amended her claim on the promissory notes to add a request for attorney fees. The trial court ruled in favor of Ms. Shubert on the promissory notes including the claim for attorney fees but denied all other claims. We affirm with one exception, finding Ms. Shubert is entitled to recover property taxes paid on behalf of Mr. Dukes to preserve the property.
Roger Thompson, et al. v. Ruby Tuesday, et al. - M2004-01869-COA-R3-CV View
Davidson County - Roger Thompson sustained injuries after tripping and falling over a speed bump in a parking lot of a shopping complex after exiting a Ruby Tuesday Restaurant. Mr. Thompson and his wife (“the Plaintiffs”) subsequently filed suit against Ruby Tuesday, Inc. as lessee of the restaurant premises, Owen L.P. as owner of the shopping complex, and Hold-Thyssen, Inc. as the lessee and manager of the shopping complex premises, including the parking lot area where Mr. Thompson fell. All of the defendants moved for summary judgment, which the trial court subsequently granted. The Plaintiffs appeal arguing that disputed issues of material fact exist from which a jury could render judgment in their favor against all defendants. We affirm in part and reverse in part.
Terry Potts, et al. v. Nashville Electric Service - M2005-00368-COA-R3-CV
Davidson County - The trial court granted summary judgment to the defendant Nashville Electric Service in this lawsuit arising from an accident that occurred when an NES truck malfunctioned and came to a sudden stop on the interstate. Because NES conclusively demonstrated that no driver negligence caused the accident and resulting injury, and because the plaintiff failed to provide evidence disputing NES’s evidence that it used reasonable care in its maintenance of the truck, we affirm the trial court’s grant of summary judgment.
City of Cleveland vs. Mike Wade - E2004-02633-COA-R3-CV View
Bradley County - The defendant, Mike Wade, operates an adult establishment in Bradley County under the trade name of Babylon Adult Bookstore. He submitted an application to the City of Cleveland (“the City”), seeking to establish a second adult book and video store, this one to be located within the city limits of Cleveland. The City denied Wade’s application. It did so because it determined that the proposed store was a “sex outlet” and that Wade intended to operate it at a location within 750 feet of a residentially-zoned district, in violation of the pertinent zoning ordinance. The Cleveland City Council, and the trial court following a bench trial, affirmed the denial of the application. Wade appeals, arguing that the applicable ordinances of the City are content-based and unconstitutionally vague. We affirm the trial court.
Effie Hayes vs. Roger Strutton, et al - E2004-01849-COA-R3-CV View
Hamilton County - Plaintiff’s action for damages for loss of her property due to defendants’ fraud was dismissed by the Trial Court on the grounds that the issues had been decided adversely to plaintiff in prior actions involving these issues. On appeal, we affirm.
Diane Mayes vs. Jamco-KW d/b/a Andy On Call - E2005-01425-COA-R3-CV View
Hamblen County - The Trial Court refused to grant defendant’s Tenn. R. Civ. P. Rule 60 Motion to Set Aside Judgment. On appeal, we reverse.
Sandra Elaine Helton (Buscher) v. Shaun Edward Helton - M2005-00268-COA-R3-CV - View
Davidson County - This post-divorce case presents the question of whether the trial court correctly interpreted and enforced a provision in the parties’ marital dissolution agreement (MDA) providing that if Sandra Elaine Buscher relocated from Davidson County or counties adjacent to Davidson, she agreed to “pay all expenses necessary for Husband [Shaun Edward Helton] to maintain the same visitation” with their child as originally agreed in the MDA. On remand from this court, the trial court allowed Ms. Buscher to relocate with the child to Jackson, Mississippi, and awarded Mr. Helton visitation comparable to that which he originally received. The trial court, however, did not require Ms. Buscher to pay for Mr. Helton’s costs of traveling to Mississippi to exercise all of his visitation. Mr. Helton appealed. We modify the trial court’s judgment to provide that Ms. Buscher shall be responsible for such costs as are reasonable and necessary for Mr. Helton to exercise the same amount of visitation as before Ms. Buscher’s move, pursuant to the MDA’s terms. We affirm the trial court’s judgment in all other respects.
Midwestern Gas Transmission Co. v. Michael Rippy and Theresa Rippy - M2005-00828-COA-R3-CV - View
Midwestern Gas Transmission Co. v. James Lassiter & Joanne Lassiter - M2005-00829-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Rebecca Warren - M2005-00830-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Charles A. Deshler & Martha A. Deshler Joint Caring Trust; Charles A. Deshler & Martha A. Deshler - M2005-00831-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Fred P. Walter & Ada Mai Walter - M2005-00822-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Fred Thomas McKee & Mary McKee - M2005-00823-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Ronald R. Dunn & Brenda A. Dunn - M2005-00824-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Charles Carter & Brenda Carter - M2005-00825-COA-R3-CV - View
Midwestern Gas Transmission Co. v. James R. Stephenson & Debbie Stephenson - M2005-00826-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Robert G. Ingrum & James L. Tucker - M2005-00827-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Denver L. Pryor - M2005-00803-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Lorrie Marcum - M2005-00804-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Rufus Reese & Richard Reese, Jr. - M2005-00805-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Linda Scott Webster - M2005-00818-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Nikki Wallace & Alexis Wallace - M2005-00819-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Berton Gregory & Willodean Gregory - M2005-00820-COA-R3-CV - View
Midwestern Gas Transmission Co. v. The Camilla Jean Palmer Revocable Trust, Camilla Jean Palmer, Trustee - M2005-00789-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Larry Law & Martha Law - M2005-00790-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Harold B. Knight & Judith Knight - M2005-00791-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Ruth W. Briley - M2005-00792-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Martha Jo Law Fenimore - M2005-00793-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Calvin Kirkham & Wanda Kirkham - M2005-00795-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Patricia G. Green - M2005-00796-COA-R3-CV - View
Midwestern Gas Transmission Co. v. David Smith, Phillip Smith, & Mike Smith - M2005-00799-COA-R3-CV - View
Midwestern Gas Transmission Co. v. William Sherron & Elizabeth Sherron - M2005-00800-COA-R3-CV - View
Midwestern Gas Transmission Co. v. Frank A. Bass & Mary A. Bass - M2005-00801-COA-R3-CV - View
Midwestern Gas Transmission Co. v. T. David Baker & Shirley Baker - M2005-00802-COA-R3-CV - View
Sumner County - This appeal is one of twenty-seven similar appeals arising from a dispute between a natural gas company that has the power of eminent domain and the owners of twenty-seven properties who are resisting the company’s efforts to construct an extension of an existing pipeline. After these property owners refused to permit the company to conduct preliminary examinations and surveys on their properties, the company filed separate complaints against the owners of each tract in the Circuit Court for Sumner County seeking orders authorizing it to conduct the preliminary examinations and surveys necessary for the siting of the project pursuant to Tenn. Code Ann. § 29-16-121 (2000). The trial court conducted an expedited joint hearing and entered an order dismissing the company’s complaints. The company appealed, and we consolidated the cases for oral argument. We have concluded that Tenn. Code Ann. § 29-16-121 is not preempted by the Natural Gas Act and that the company is entitled to the orders of preliminary entry it sought. Accordingly, we have determined that the trial court erred by dismissing the company’s complaints.
Cases posted the week of
02/20/2006
State ex rel. Sylvana
LaSelva vs. Henry Ziomek - E2005-00542-COA-R3-CV View
Sevier County -
This appeal concerns a decision of the Sevier County Circuit Court that a child
support judgment entered by the Ontario Superior Court of Justice was entitled
to registration, but was not entitled to enforcement in Tennessee pursuant to
the Uniform Interstate Family Support Act, Tenn. Code Ann. § 36-5-2001, et
seq. After determining that the Canadian judgment was not enforceable, the
Circuit Court ordered the father to pay significantly less than the amount
previously ordered by the Canadian Court. We hold that the judgment of the
Ontario Superior Court of Justice is entitled to registration and enforcement
in Tennessee under the Uniform Interstate Family Support Act. We also hold that
the Circuit Court lacked subject matter jurisdiction to modify the
father’s child support payment. The judgment of the Circuit Court is
affirmed in part, reversed in part, and remanded for further proceedings.
Robin Kuykendall vs. Margaret Harper -
E2005-01756-COA-R3-CV View
Knox County -
Plaintiff sued for attorney's fees under contract of employment with defendant.
The Trial Court awarded Judgment for fees. Both parties appealed. We affirm.
Shields Mountain Property Owners Assoc.,
et al vs. Marion Teffeteller, et al. - E2005-00871-COA-R3-CV View
Sevier County -
Shields Mountain Property Owners Association, Inc., James R. Hall, and Terri L.
Hall ("Plaintiffs") sued Marion A. Teffeteller and Charlene A. Teffeteller
("Defendants") seeking, among other things, to enforce restrictive covenants
and enjoin Defendants from renting their property in Shields Mountain Estates
for overnight vacation purposes. The Trial Court found and held, inter alia,
that the covenants and restrictions at issue are applicable to the lots within
Shields Mountain Estates including Defendants' lots; that Defendants' use of
their lots for vacation rentals is a violation of the covenants and
restrictions; and that Defendants are permanently enjoined from using property
they own in Shields Mountain Estates for vacation rentals. Defendants appeal to
this Court. We affirm.
Donald Jamison vs.
Harrell Ulrich, et al. - E2005-01153-COA-R3-CV View
Hamilton County - The issue presented in this case is whether the policemen and firemen's rule
applies to an animal control officer who was bitten by a Doberman pinscher
while performing the duties of his employment. The plaintiff, an animal control
officer for the Chattanooga Police Department, was bitten when, in the course
and scope of his employment, he attempted to take possession of the defendants'
dog at their home. The plaintiff sued the defendants for compensatory damages,
claiming that they were negligent in failing to warn him about the dangerous
nature of the dog. The trial court granted the defendants' motion for summary
judgment upon its determination that the dog's owners owed no duty to the
plaintiff under the circumstances pursuant to the policemen and firemen's rule
which precludes police officers and firefighters from recovering for injuries
arising out of risks peculiar to their employment. Upon review, we find that
the dog's owners owed no duty of ordinary care to the animal control officer
and therefore, we affirm the judgment of the trial court.
Larry Grigsby vs. University of Tennessee
Medical Center, et al - E2005-01099-COA-R3-CV View
Knox County - In this pro se medical malpractice case, the issues on appeal are whether the
Appellant, Larry Grigsby, timely filed a notice of appeal as regards Defendants
Dr. Paul A. Hatcher and Dr. E. Jay Mounger, and whether the trial court
correctly granted summary judgment to the University of Tennessee Medical
Center ("UTMC"). We dismiss the appeal as to the Defendant doctors because we
find that Mr. Grigsby did not comply with the jurisdictional requirement of
Tenn. R. App. P. 4(a), mandating the timely filing of a notice of appeal. We
affirm summary judgment in UTMC's favor because Mr. Grigsby proceeded solely on
the vicarious liability theory of respondeat superior, pursuant to his
allegations that Drs. Hatcher and Mounger were agents and/or employees of UTMC.
Because the alleged agents have been exonerated by an adjudication of
non-liability, and therefore the alleged principal, UTMC, may not be held
vicariously liable, we affirm summary judgment in favor of UTMC.
Mary Dotson v. William Dotson -
M2004-001141-COA-R3-CV View
Maury
County - The husband appeals from a final decree of divorce
challenging the award of divorce to the wife, the distribution of property, and
the award of some property as alimony in solido to the wife. Because the
husband raises factual issues and there is no transcript or statement of the
evidence in the record, we must presume the record would have supported the
factual findings of the trial court and accordingly affirm.
Progressive Funding v. Henry Hoover -
M2005-00296-COA-R3-CV View
Fenress County - In
an action to quiet title, the Trial Court granted plaintiff summary judgment
and defendant appealed. We affirm the Trial Court.
Cases posted the week of 02/13/2006
L.D.N., et al vs. R.B.W., et al -
E2005-02057-COA-R3-PT View
Bledsoe County - This appeal involves a petition to terminate
the parental rights of K.W. (“Mother”) to her two minor sons. The
petition was filed by K.W.’s parents, L.D.N. and M.B.N., who also sought
to adopt their two grandsons. Following a trial, the trial court found and held
that Mother had abandoned her two sons, that her parental rights should be
terminated, and that petitioners should be allowed to adopt the two minor
children. Because the state of the record prevents this Court’s effective
review of the trial court’s judgment, the judgment of the trial court
terminating Mother’s parental rights and granting the petition for
adoption is vacated, and this case is remanded for further proceedings
consistent with this opinion.
Paul Braden
v. Nancy Strong v. Eddie Braden - M2004-02369-COA-R3-CV View
Lincoln County - This case involves the dissolution of three partnerships. Appellee partner
filed complaint against Appellant partner seeking a dissolution of two
partnerships, an accounting of the partnerships to show liability of each
partner, and appointment of a receiver to wind up the businesses. Appellant
partner filed a counter-claim seeking the dissolution and of a third implied
partnership, as well as an accounting and damages for breach of contract and
breach of fiduciary duty against the Appellee partner and his brother. The
brother was added as a party to the action. The trial court ordered: (1) that
the two partnerships be dissolved, (2) that the assets be divided forty-nine
percent (49%) to the Appellee partner and fifty-one percent (51%) to the
Appellant partner, (3) that the Appellee partner be awarded capital account
adjustments, and that capital account adjustments be denied in part, and
awarded in part for the Appellant partner, (4) that the construction business
was an implied partnership, and (5) that the construction partnership be
dissolved and assets divided twenty-five percent (25%) to the Appellee partner,
twenty-five percent (25%) to the Appellant partner, and fifty percent (50%) to
the third-party brother. The order of the trial court is affirmed as to the
finding that the construction business was an implied partnership, that this
partnership be dissolved and assets divided twenty-five percent (25%) to the
Appellee partner, twenty-five percent (25%) to the Appellant partner, and fifty
percent (50%) to the third-party brother, and as to the dissolution of the
remaining two partnerships effective January 12, 2004. The order is further
affirmed as to the denial of a capital credit to the Appellee partner for
forty-nine percent (49%) of the debt rolled into the partnership promissory
note. The trial court’s order is, in all other aspects, reversed and
remanded for consideration of capital account adjustments for the Appellant
partner and Appellee partner, for a complete accounting of the construction
business, Braden Construction/Braden LLC, and for consideration of the
Appellant partner’s claims of breach of contract and breach of fiduciary
duty for Appellee partner’s exclusion of Appellant partner from the
Landscaping Concepts partnership.
Sherman Alexander Henderson v. Ross Bates, et
al. - W2005-01506-COA-R3-CV View
Lauderdale County - Appellant is an inmate in the
custody of the Tennessee Department of Correction. Appellant filed a Title 42
U.S.C. §1983 claim against the Appellee/Associate Warden and
Appellee/Pre-Release Coordinator alleging a violation of the inmate’s
civil rights arising from a change in inmate’s custody status. The trial
court granted the Appellees’ Tenn. R. App. P. 12.02 Motion to Dismiss.
Inmate appeals. We affirm.
Robert Ray
Joyce vs. Robin Sue Collins, et al - E2005-01177-COA-R3-CV View
Hamblen County - This litigation is essentially a dispute between siblings – the
plaintiff Robert Ray Joyce (“Joyce Son”) and the defendant Helen
Joyce Grooms (“Joyce Daughter”) – the surviving children of
Robert C. Joyce (“the deceased”). Joyce Son filed this action
alleging (1) that his sister, Joyce Daughter, secured the execution of their
father’s power of attorney by exercising undue influence over him; and
(2) that Joyce Daughter’s transfer of the deceased’s real estate to
her husband, the defendant James Grooms – which deed was executed during
the deceased’s lifetime, and, according to Joyce Daughter, in her
father’s presence and at his direction – was intended to deprive
Joyce Son of his share of the deceased’s estate. The trial court set
aside the deed, stating that the transfer was made without consideration and in
gross violation of the applicable statutes. Joyce Daughter and her husband
appeal. We affirm.
Janine A. Bilyeu v.
City of Nashville, Metro Legal, Represented by Jennifer Bozeman, Attorney,
Metro Nashville Public Schools, Represented by Dr. Julie Williams, Assistant
Superintendent, and Metropolitan Nashville Educators Association, Represented
by Harry McMakin, Former President, 2002 and Martha Childs, Attorney -
M2004-02779-COA-R3-CV View
Davidson County - The trial court granted judgment to
defendants on grounds inter alia that the plaintiff had not exhausted her
administrative remedies. On appeal, we vacate the summary judgment and
remand.
Helen Sfikas
Rogers, Temporary Guardian for the Estate of Reuben K. Richards v. The
First National Bank, et al. - M2004-02414-COA-R3-CV View
Hickman
County - In 1997, an elderly gentleman executed a power of attorney
appointing his only daughter as his attorney-in-fact. Shortly thereafter, the
daughter began to withdraw funds from her father’s accounts held at the
bank. The father’s mental and physical condition deteriorated to such a
state that he had to be placed into a nursing home facility. The daughter
subsequently entered into a transaction to convey her father’s real
property. Ultimately, the father was forced to seek assistance from TennCare to
pay for his nursing home obligations. TennCare subsequently brought suit
against the father seeking reimbursement of funds expended on his behalf. The
probate court appointed a temporary guardian to represent the father’s
interest. The father’s guardian brought suit against the bank, the buyers
of his real estate, and the daughter seeking to rescind the land sale contract,
recover the funds dissipated from his accounts, or to impose a constructive
trust. The daughter was dismissed from the suit after she relinquished control
of certain items purchased with the proceeds from these transactions to the
guardian. As for the bank, the guardian took the position that the bank owed
the father a fiduciary duty to protect his accounts from dissipation by the
daughter. In regards to the buyers of the father’s real property, the
guardian contended that they had notice of a problem with the transaction due
to the daughter’s mental instability, the unreasonably low price paid by
the buyers, the existence of a contingency clause in the contract, and the fact
that the father was in a nursing home. The bank and the buyers moved for
summary judgment, and the trial court granted both motions. We affirm.
Coy Allen Kidd et al. v. Jarvis Drilling, Inc. et
al. - M2004-00973-COA-R3-CV View
Davidson County - This appeal arises from a dispute between an
oil drilling Co. and a group of Scott County property owners regarding the
Co.’s plans to recover oil from the currently non-producing West
Oneida Field. After the Tennessee Oil and Gas Board approved the
Co.’s unitization and secondary recovery plans, the property owners
filed a petition in the Chancery Court for Davidson County seeking judicial
review of the Board’s decision. The trial court affirmed the
Board’s decision, and the property owners appealed. We have determined
that the record supports the Board’s approval of the unitization plan and
the secondary recovery plans. However, we have also determined that the Board
failed to make all the findings required for the approval of the subterranean
gas storage portion of the plan. Accordingly, we vacate the trial court’s
order approving the plan and remand the case with directions that it be
remanded to the Board for further proceedings.
Jerry Cowan v. Board of Paroles, et al. -
M2004-02150-COA-R3-CV View
Davidson County -
This appeal involves a prisoner's challenge to a decision of the Tennessee
Board of Probation and Parole. After the Board denied the prisoner parole and
scheduled his next hearing for the year 2016, the prisoner filed a petition for
a writ of certiorari in the Chancery Court for Davidson County. The Chancery
Court dismissed the petition on the grounds it was not timely filed and was not
verified. We affirm the dismissal of the petition.
Billy Suddarth, Jr., et al. v. Household Commercial
Financial , et al. - M2004-01664-COA-R3-CV View
Davidson County - Billy Suddarth, Jr. and Angela Suddarth appeal the summary dismissal of their
action, which was dismissed on the grounds of res judicata, collateral
estoppel, the Full Faith and Credit Clause, and the compulsory counterclaim
rule of the Federal Rules of Civil Procedure. In the former action in the
United States District Court for the Northern District of Illinois wherein the
Suddarths were defendants, Household Commercial Financial Services, Inc.
alleged the Suddarths breached a guaranty agreement by failing to pay a
deficiency owing on the underlying credit agreement they had guaranteed.
Household prevailed on the merits in the former action against the Suddarths.
In the present action in the Circuit Court of Davidson County the Suddarths
allege fraud, fraudulent inducement and civil conspiracy against Household and
two other defendants concerning the guaranty agreement that was the subject of
the former action in the United State District Court. The present claims by the
Suddarths arose out of the same transaction or occurrence that was the subject
of Household's action in the United State District Court; therefore, it was
compulsory that the Suddarths' claims be presented in the former action. The
Suddarths failed to do so. Therefore, we affirm the dismissal of this
action.
Marie Torrico (Morales) v. David
Smithson - M2004-01924-COA-R3-JV View
Wilson County -
David Randal Smithson ("Father"), a Tennessee resident, is a pilot for a major
airline and his job duties require him to fly to Bolivia, South America. During
one of these trips to Bolivia, Father became romantically involved with Marie
Soledad Torrico (Morales) ("Mother"), a citizen and resident of Bolivia. In
April of 2001, Mother gave birth in Bolivia to the parties' son, who is a
citizen and resident of Bolivia and has been since his birth. After obtaining a
temporary Visa authorizing her to come to the United States, Mother filed this
paternity action in the Wilson County Juvenile Court. Based on DNA test
results, the Juvenile Court enter an Order establishing Father as the
biological father of the child. The Juvenile Court later entered an order
requiring Father to pay child support based on the Tennessee Child Support
Guidelines. Father appeals claiming, among other things, that the Juvenile
Court lacked subject matter jurisdiction to enter an order requiring him to pay
child support when the child was conceived in Bolivia, born in Bolivia, and
when both Mother and the child are citizens and residents of Bolivia. We hold
that the Juvenile Court had subject matter jurisdiction over the proceedings
but erred in applying Tennessee law. The judgment of the Juvenile Court is,
therefore, vacated and this case is remanded for further proceedings.
Shannon Wilson v. Dept of Correction, et
al. - W2005-00910-COA-R3-CV View
Lake County -
Following his convictions for two disciplinary infractions, the prisoner filed
a pro se petition for a common law writ of certiorari in the chancery court.
While he attempted to verify the petition by stating that it constituted his
first application for such writ and that its contents were true and correct to
the best of his knowledge, the prisoner failed to swear to the contents of the
petition under oath by having the petition notarized. The Tennessee Department
of Correction moved to dismiss the petition for its lack of a proper
verification and for being filed beyond the applicable statute of limitations.
The trial court granted the state's motion on both grounds. The prisoner filed
a pro se appeal to this Court. We affirm.
Cases posted the week of 02/06/2006
Sandra Burton v. Kizzy McCary -
W2005-01695-COA-R3-PT View
Madison County -
This is a termination of parental rights case. Mother/Appellant appeals from
the order of the Juvenile Court at Madison County terminating her parental
rights. Specifically, Appellant asserts that the ground of persistence of
conditions is not supported by clear and convincing evidence in the record, and
that termination of her parental rights is not in the best interest of the
minor child. Because we find clear and convincing evidence in the record to
support the trial court's findings, we affirm.
James Stroud, et al. v. Shelby County Civil Service
Commission - W2005-01909-COA-R3-CV View
Shelby County - Shelby
County terminated the employment of Eric Thomas and James Stroud. Upon writ or
certiorari, the Shelby County Chancery Court reversed, and Shelby County
appeals. We reverse.
Dept of Children's
Services, vs. T.M.B.K. - E2005-00604-COA-R3-PT View
Hamilton County - In
this appeal, T.M.B.K. ("Mother") contends that the trial court erred in
terminating her parental rights and that the trial court lacked jurisdiction to
adjudicate the initial child custody proceeding. After careful review of the
evidence and applicable authorities, we hold that the trial court had subject
matter jurisdiction and the evidence does not preponderate against the trial
court's finding by clear and convincing evidence of abandonment and substantial
noncompliance with the permanency plan. We futher hold that the evidence
preponderates against the trial court's finding by clear and convincing
evidence of a failure to remedy persistent conditions. Therefore, we affirm in
part and reverse in part.
Charlene Sinor v.
Timothy Barr - M2004-02168-COA-R3-JV View
Davidson County -
Charlene Sinor ("Petitioner") filed a petition for contempt seeking, in part,
to have Timothy Barr ("Respondent") found in criminal contempt for his failure
to pay child support as ordered. After a trial, the Trial Court held Respondent
in criminal contempt finding six violations of the Trial Court's orders.
Respondent appeals to this Court claiming that his conviction of criminal
contempt was based upon an improper evidentiary presumption and insufficient
evidence. We reverse.
Brenda Woods, Tawana
Polk, Jonathan Joy, Clifton Polk v. Hardeman County Election Commission -
W2005-02070-COA-R3-CV - View
Hardeman County -
This is an election contest. The plaintiffs were unsuccessful candidates for
office in a municipal election held on May 19, 2005. On June 3, 2005, they
filed this election contest. The defendants filed a motion to dismiss the
lawsuit based on the special ten-day statute of limitations for election
contests, which is set out in T.C.A. § 2-17-105. The trial court granted
the motion to dismiss. The plaintiffs now appeal. We reverse, concluding that,
pursuant to Tennessee Rule of Civil Procedure 6.01, intermediate Saturdays,
Sundays, and legal holidays are excluded from the computation of the time in
which the plaintiff must file suit.
Connie J. Ottihnger vs. Patricia E. Stooksbury - E2005-00381-COA-R3-CV View
Knox County -
Connie J. Ottinger ("Plaintiff") sued Patricia E. Stooksbury ("Defendant")
seeking, among other things, to quiet title to a thirty foot easement.
Defendant answered the complaint and filed a counter-claim asserting, in part,
that her right to use the easement is exclusive and that Plaintiff has no right
to use the easement. The case was tried without a jury and the Trial Court
entered a final order holding, inter alia, that Defendant is permanently
enjoined from interfering with Plaintiff's right to use the easement located on
Plaintiff's property. Defendant appeals claiming that the Trial Court erred by
considering parol evidence and by requiring Defendant to prove her case by
clear evidence. Defendant also argues that the evidence preponderates against
the Trial Court's finding that the original grantors did not intend to create
an exclusive easement in favor of Defendant. We affirm.
In the matter of Deshundra Hunt; Shelly Bryant v. Juan
Hunt - W2005-00684-COA-R3-CV View
Madison County - This
appeal stems from a custody dispute between a mother and father over their
minor daughter. In this appeal, we are asked to determine whether the circuit
court erred when it dismissed the appeal of two juvenile court orders denying
the mother's petition for permanent custody and the mother's amended petition
to reconsider. The mother argues that both orders were related to an original
dependency and neglect proceeding that transferred custody of her minor
daughter from her to the daughter's father. The circuit court found that both
orders were not related to the dependency and neglect proceedings and dismissed
the mother's appeal. Also on appeal, the mother asserts that the circuit court
erred when it dismissed her appeal of the order regarding the original
dependency and neglect proceedings as not being timely filed. The mother has
also requested that this Court vacate the original order regarding the
dependency and neglect proceedings because of several due process violations
that occurred during the hearing. We dismiss the appeal of the issue requesting
that we vacate the original order from the dependency and neglect proceedings
and affirm the portion of the circuit court's order dismissing the appeal of
the order stemming from the original dependency and neglect proceedings. We
vacate portion of the order dismissing the appeal of the two juvenile court
orders filed September 24, 2004 and remand to the trial court for the entry of
an order transferring the appeal of the two orders to the Court of Appeals for
processing and disposition.
Tom Albert, et
al.v. Pat Frye, et al. M2004-02014-COA-RM-CV View
Robertson County - Vernon Frye, a defendant, appeals the grant of a post-trial motion to alter
or amend the judgment for the defendant, resulting in a judgment against him of
$65,000. Plaintiffs, Tom and Hazel Albert, sued Vernon Frye on a check he
signed and delivered to them but stopped payment on before it was presented to
the bank. Following a bench trial, the trial court dismissed Plaintiffs' claim
against Vernon Frye upon the finding Plaintiffs had not proven fraud. In a
post-trial motion to alter or amend, Plaintiffs contended they were entitled to
relief pursuant to Tenn. Code Ann. § 47-3-414(b) because Frye, the drawer,
was obliged to pay the draft according to its terms without proof of fraud. The
trial court agreed and entered a new judgment awarding damages in the amount of
the check against Vernon Frye. Finding the trial court did not abuse its
discretion by granting the Tenn. R. Civ. P. 59.04 motion to amend the judgment,
we affirm.
Charlie Gardner, Jr. v. Dept of
Corrections - M2003-0311-COA-R3-CV View
Davidson County - This
appeal involves a dispute between a prisoner and the Tennessee Department of
Correction regarding the Department's confirmation of the prisoner as a member
of a Security Threat Group. The prisoner filed a petition pursuant to Tenn.
Code Ann. § 4-5-225 (2005) in the Chancery Court for Davidson County
seeking a declaratory judgment that the Department's Security Threat Group
policies and their application to him were invalid. The trial court granted the
Department's Tenn. R. Civ. P. 12.02(6) motion to dismiss, and the prisoner has
appealed. We have determined that the prisoner failed to state a claim upon
which relief can be granted because Tenn. Code Ann. § 4-5-225 petitions
cannot be used to challenge the Department's internal management policies.
Phyllis Mitchell v. Diane Hutchins -
M2004-01592-COA-R10-CV View
Dickson County - This
appeal involves a legal malpractice action. When the client discovered that her
attorney had failed to file a personal injury complaint before the statute of
limitations ran, she filed identical legal malpractice complaints in both the
Circuit Court of Dickson County and the Circuit Court for Montgomery County.
After the Montgomery County complaint was dismissed for failure to prosecute,
the client's former attorney moved to dismiss the Dickson County complaint on
the ground of res judicata. The trial court denied the motion, and the attorney
filed an application for an extraordinary appeal in accordance with Tenn. R.
App. P. 10. We granted the application and have now determined that the trial
court properly denied the attorney's motion to dismiss.
William Dorning v. Ametra Bailey -
M2004-02392-COA-R3-CV View
Lawrence County - The
Sheriff of Lawrence County filed an application in the circuit court pursuant
to section 8-20-101 et seq. of the Tennessee Code seeking, among other things,
funding for new vehicles, an additional administrative assistant for his
investigators, two additional corrections officers for his jail, and increased
salaries for his employees. The trial court granted the sheriff additional
funding for these items. Regarding the salary increases, the trial court
ordered that they be retroactive to the beginning of the prior fiscal year. The
county appealed the trial court's decision regarding the aforementioned items
to this Court. We reverse in part and affirm in part the decisions of the trial
court.
John Moore, et al. v. Board of
Zoning Appeals et al. - M2004-00353-COA-R3-CV View
Davidson County -
This appeal involves a dispute between the developers of the site of a former
commercial laundry and dry cleaning plant located in a residential neighborhood
and a group of neighboring residents and property owners. Following two public
hearings, the Metropolitan Board of Zoning Appeals approved a mixed-use
development that included renovating two of the existing structures and
constructing a new structure containing underground parking and additional
retail and residential space. The neighboring property owners filed a petition
for a common-law writ of certiorari and a writ of supersedeas in the Chancery
Court for Davidson County challenging the Board's decision. Following a review
of the record of the Board's proceedings, the trial court upheld the Board's
decision, and the property owners appealed. We have determined that the Board
followed the proper procedures and did not act arbitrarily, and that its
decision is supported by material evidence.
Neal Roberson v. West Nashville Diesel -
M2004-01825-COA-R3-CV View
Davidson County - A
repairer sold equipment at auction to enforce its lien and collect its charges
for repairs. It also attempted to collect storage charges that had not been
agreed to. The trial court found the repairer was not entitled to storage
charges, and we agree under the facts of this case. The trial court also
awarded the owner of the equipment damages for the difference in the fair
market value of the equipment and the amount received at auction. We modify
that award to the measure authorized by statute in the absence of a challenge
to the auction procedures. The trial court found the repairer violated the
Tennessee Consumer Protection Act, and we reverse that holding.
Tennessee
Farmers Assurance Co., et al v. Loren Chumley - M2004-02530-COA-R3-CV View
Maury Count -
Taxpayer insurance companies brought suit in consolidated cases for refund of
franchise and excise taxes which taxpayers had paid under protest. The taxes
were assessed as a result of an audit conducted by the Tennessee Department of
Revenue's field audit division and covering tax years 1995 through 1998. The
taxpayers assert that they are allowed to take credit against the franchise and
excise taxes for the amount they actually paid in gross premiums tax plus the
credit they were granted against said tax by virtue of Tennessee investments.
The Commissioner asserts that they are only entitled to credit on the franchise
and excise taxes for the amount of gross premiums tax actually paid. The
Chancery Court of Maury County entered judgment granting taxpayers motion for
summary judgment holding that the commissioner's interpretation of the statutes
defeated the incentives for investment in Tennessee securities provided under
the gross premiums tax statutes. The revenue commissioner appealed. Finding
that Commissioner of the Department of Revenue is not estopped from assessing
franchise and excise taxes against the Appellee, either by statute or by
equity, and that the credit against franchise and excise taxes includes only
the amount of gross premiums taxes paid and collected by the Department of
Commerce and Insurance, we vacate the summary judgment granted to the Appellees
and grant summary judgment for Appellant.
Cases posted the week of 01/30/2006
Dewayne Holloway v. State -
W2005-01520-COA-R3-CV View
This is a
claim filed against the State by a minor-decedent's father for the wrongful
death of the minor-decedent based on T.C.A. 9-8-307 (a)(1)(E) (Negligent Care,
Custody and Control of Person). Claims Commissioner found that the State did
not have care, custody and control of the minor child and, therefore, the
Claims Commission is without jurisdiction to consider the claim. Father
appeals. We affirm.
Adolph Groves, Jr. v.
Sandra Groves - M2004-01391-COA-R3-CV View
Davidson County -
This appeal arises from the last of many petitions and counter-petitions by
both parties to change custody of the parties' only child, to modify child
support, to acquire arrearage judgments for non-paid child support, and for
contempt of court. The order from which this appeal arose awarded custody of
the child to the mother and dismissed the father's petition for contempt. Prior
to this order, custody had been awarded to the father; however, he had not
provided financial support for the child, and the child had not lived with him
since the entry of the order awarding him custody. The dismissal of the
father's petition was based upon the trial court's finding the father had
failed to comply with the previous order he was seeking to enforce. Finding no
error, we affirm.
Consumer Advocate
Division v. Tenn. Regulatory Authority - M2004-01481-COA-R12-CV; View
M2004-01482-COA-R12-CV;
M2004-01485-COA-R12-CV
This is a consolidation of three appeals
involving three tariffs filed by BellSouth Telecommunications, Inc. with the
Tennessee Regulatory Authority. All three tariffs contained bundled offerings
of telecommunications services and non-telecommunications services. The
Consumer Advocate Division of the Office of the Attorney General was allowed to
intervene in these proceedings in order to address the question of BellSouth's
obligation, under the Federal Telecommunications Act of 1996, to offer for
resale the telecommunications services contained in the bundled offerings. The
Tennessee Regulatory Authority entered orders allowing the tariffs to go into
effect without the telecommunications service portions thereof being offered
for resale. The Consumer Advocate appealed and the cases were consolidated for
that purpose. In 2005, during the pendency of this appeal, the Tennessee
General Assembly enacted T.C.A.§65-37-103 (Supp. 2005). This statute
specifically exempts retail offerings of combinations or bundles of products or
services from the jurisdiction of the Tennessee Regulatory Authority. In
addition, all three of the tariffs at issue in this case expired, by their own
terms, during the pendency of this appeal, rendering the appeal moot. Because
we do not find that these appeals fall within any of the exceptions to the
mootness doctrine, we dismiss the appeal as moot.
Nashville & Davidson County v. Hutton
Buchanan - M2004-01716-COA-R3-CV View
Davidson County -
Hutton Buchanan ("Defendant") was served with a civil warrant alleging that he
was in violation of the Metropolitan Government of Nashville and Davidson
County Code ("Metro Code") for "utilizing the premises located at 8331 + [8337]
McCrory Ln. [("the Property")] for the open storage of abandoned, unlicensed
and inoperable vehicles, scrap metal, building rubbish, trailers and other
scraped materials and debris." The case was tried without a jury and afterward,
the Trial Court entered an Order, inter alia, finding that Defendant is
required to comply with Metro Code § 16.24.330(B), ordering Defendant "to
remove abandoned unlicensed and inoperable vehicles and un-usable scrap
materials" from the Property, and ordering Defendant to enclose the Property.
Defendant appeals to this Court. We reverse.
Willie Johnson v. Corrections Corporation of
America - M2004-01301-COA-R3-CV View
Davidson County -
An inmate incarcerated in a prison operated by Corrections Corporation of
America sued the corporation for damages arising from its alleged failure to
provide him with proper dental care while he was in its custody. The defendant
filed a motion to dismiss for improper venue and/or for untimeliness. The trial
court granted the motion and dismissed the case with prejudice, but did not
state the reason for its decision. We affirm the trial court because the
one-year statute of limitations had passed before the plaintiff filed his
complaint.
James Keith v. Jordan
Surratt - M2004-01835-COA-R3-CV View
Wilson County - In
this child custody case, Father appeals and argues that the trial court erred
in awarding Mother primary residential custody of the parties' twin minor
children. Mother also appeals and argues that the trial court erred in setting
Father's child support, in failing to assess her attorney's fees against
Father, and in changing the children's surname to that of Father. After careful
review of the evidence and applicable authorities, we find no error and affirm
the judgment of the trial court in all respects.
Allison Simmons v. Richard Simmons -
M2005-00348-COA-R3-CV View
Robertson County -
Both parties appeal aspects of the final divorce decree. Husband contends the
trial court erred by awarding wife transitional alimony in excess of his
ability to pay and in excess of her need. Wife raises six issues, contending
she should have been granted the divorce due to his abuse; that child support
should be increased; that she should be awarded the tax deductions for all
three children; that she should be named trustee of life insurance for the
benefit of the children; and that husband should pay her attorney fees at trial
and on appeal. We affirm the trial court in all respects but one, finding the
transitional alimony was set at an amount greater than husband's ability to
pay.
United States Aviation Underwriters,
et al. v. Jacquelyn Teal Selle, et al. - M2004-02243-COA-R3-CV View
Maury County -
Curtis M. Selle ("Decedent"), an employee of Haulers Insurance Co., Inc.
("Haulers"), died while piloting a plane in the course of his employment with
Haulers. Haulers had insurance coverage provided by United States Aviation
Underwriter's, Inc. ("Plaintiff") which included a "Voluntary Settlement
Coverage" provision. This provision provided for the payment of up to $250,000
to or for a party injured as the result of a plane crash in exchange for waiver
of all claims of liability against Haulers. A dispute subsequently arose
between Decedent's mother, Patricia Selle ("Appellant"), and Decedent's widow,
Jacquelyn Teal Selle ("Appellee"), as to who should receive the $250,000
proceeds from the voluntary settlement provision. Appellant argued that the
terms of the policy provided that she, as the alleged residuary beneficiary of
Decedent's estate, should receive the funds. However, the trial court held that
the proceeds inured to Appellee as the proceeds of a life i