This Page Last Updated: November 05, 2007 at 11:49.00 hours
The following Opinions are available for download:
Cases posted the week of 03/26/2007
Frank H. McNiel v. Susan R. Cooper - M2005-01206-COA-R3-CV View
(Originally filed on March 13, 2007 - Withdrawn and Replaced on March 30, 2007)
Davidson County
- This appeal involves the authority of the Tennessee Board of Medical Examiners to review the medical records of a physician’s patients. After the Board requested access to his patients’ records in accordance with Tenn. Code Ann. § 63-1-117 (2004), the physician filed a declaratory judgment action in the Chancery Court for Davidson County challenging the constitutionality of the statute. The physician asserted that the statutory procedure for gaining access to medical records amounted to an unreasonable search and seizure because it failed to provide him with pre-enforcement judicial review of the reasonableness of the Board’s request. He also claimed that the statute’s notice provisions violated due process. Both the physician and the Board filed motions for summary judgment. The trial court concluded that the physician received adequate notice of the purpose of the request for medical records. It also determined that Tenn. Code Ann. § 63-1-117(a)(3), the portion of the statute authorizing disciplinary sanctions against physicians who willfully fail to produce requested records, was unconstitutional and awarded the physician $20,916 in attorney’s fees. The Board perfected this appeal. We concur with the trial court’s conclusion that the physician received adequate notice of the reasons for the request for medical records. However, we have determined that physicians in Tennessee have no reasonable expectation that they can shield their patients’ records from the Board’s regulatory oversight and that the Board may discipline physicians who willfully refuse to comply with lawful requests for patient records that comply with Tenn. Code Ann. § 63-1-117.
Frank A. Gooch v. City of Pulaski, et al. - M2006-00451-COA-R3-CV View
Giles County - Employee filed an action against the City of Pulaski, the mayor of Pulaski, and Public Works Committee members, alleging a violation of the Tennessee Public Protection Act, a violation of the Public Employee Political Freedom Act, negligence under the Government Tort Liability Act, and common law retaliation, after employee was allegedly terminated for insubordination. Defendants filed a motion for summary judgment which the court granted, dismissing all of Plaintiff’s claims. Plaintiff appeals the dismissal of his claims against the City. We affirm the decision of the trial court in all respects.
Homebuilders McGee & Story, LLC, et al v. Henry Bucker - M2005-02643-COA-R3-CV View
Davidson County - This appeal arises from a dispute between a homeowner and a contractor concerning an expansion and remodeling of the homeowner’s residence. When the project was only 30% complete, the homeowner fired the contractor, following which each party sued alleging breach of contract and a myriad of other claims. Following a bench trial, the trial court found the Construction Management Agreement the parties entered into was not enforceable because the parties never had a meeting of the minds. Accordingly, it dismissed the parties’ respective breach of contract claims. Each party appeals contending the agreement is enforceable and that each is entitled to damages. We have concluded the Agreement constitutes an enforceable contract because it sufficiently identifies the scope of the work and the price of the work, which was an agreed budget of $175,000 with a management fee of “Cost Plus 17%.” We also find the contractor is entitled to damages for breach of contract.
Ryder Integrated Logistics, Inc. v. Edwin Jason Aldrich, Mart Grayson Fendley and Rudolph, Ross, Fendley & Hogan a Tennessee Partnership - M2006-00115-COA-R3-CV View
Montgomery County - Trial court dismissed action by worker’s compensation lienholder against employee’s attorney seeking to hold employee’s Tennessee attorney liable for disbursement of proceeds from third party settlement made by another out-of-state attorney. We affirm.
In Re: M. B. - M2006-02063-COA-R3-PT View
Robertson County - Father of a two year old child appeals the termination of his parental rights, contending the Department of Children’s Services failed to prove by clear and convincing evidence that it made reasonable efforts at reunification. Two weeks after the Department took custody of the child, it developed a permanency plan, the goal of which was reunification with the father. Shortly thereafter, the Department assigned the case to Residential Services, Inc., a private social services agency, to which it delegated its responsibilities relative to the plan for reunification, including assisting the father with drug rehabilitation, employment, and housing. Although a social services case manager with the Department continued to monitor the file, all services rendered for and communications with the father were performed by and through RSI’s employees. Eighteen months later, the Department filed a petition to terminate of the parental rights of the father, which the trial court granted following a trial. We have concluded that the scant evidence in the record relative to services rendered by RSI is insufficient to prove by clear and convincing evidence that reasonable efforts were made to reunify the father with the child. Accordingly, we vacate the judgment and remand for further proceedings.
Ann Margaret Shofner, M.D. v. Robert L. Jackson, et al. - M2006-00150-COA-R3-CV View
Davidson County - The plaintiff appeals the summary dismissal of her legal malpractice action against the attorneys who represented her in a custody and divorce action. The plaintiff contends they committed malpractice by mishandling the custody matter and by withdrawing as her counsel after the custody hearing but before the resolution of the financial matters involved in the divorce. The trial court held the plaintiff’s action was barred by the statute of limitations. We affirm.
(Separate concurring opinion by Koch, J.) View
Davidson County - I concur with the court’s conclusion that the statute of limitations bars both of Dr. Ann Margaret Kalisz Shofner’s legal malpractice claims. However, I have prepared this separate opinion to point out that when a statute of limitations defense has been asserted, it is the court’s role to determine when the cause of action accrued, not to determine the latest possible date to start the running of the statute of limitations.
Dr. Shofner’s cause of action arising from the handling of the custody dispute accrued on September 19, 2002 – the date the trial court entered its order placing custody of two of the parties’ three children in their father’s custody. Her cause of action based on the lawyers’ withdrawal from the case accrued on March 21, 2003 - the date when the lawyers actually withdrew from the case. Dr. Shofner filed her legal malpractice complaint on April 7, 2004. Because her complaint was filed more than one year after both her causes of action accrued, her legal malpractice claims are time-barred.
Daniel Music Group, LLC v. Tanasi Music, LLC, et al. - M2005-02217-COA-R3-CV View
Davidson County - This appeal involves a contractual dispute between two music publishing companies. After prior litigation in Tennessee and Pennsylvania, one of the companies filed a third law suit in the Chancery Court for Davidson County seeking damages and injunctive relief. At the plaintiff’s request, the trial court set an early trial date because the parties had already conducted extensive discovery in the earlier proceedings. The trial court heard the case without a jury and awarded a judgment to the plaintiff. In this appeal, the defendant asserts that the trial court’s decision to expedite the trial interfered with its opportunity to prepare and file an answer, to prepare for trial, and to request a jury. We affirm the judgment because the defendant has failed to demonstrate that it was prejudiced by the expedited trial schedule.
(Separate concurring opinion by Koch, J.) View
Davidson County - I concur with the court’s opinion in this case. While trial courts possess broad discretionary authority to control their dockets and the proceedings in their court, Hessmer v. Hessmer, 138 S.W.3d 901, 904 (Tenn. Ct. App. 2003), their discretion is not so broad that it permits them to make procedural decisions that prejudice the procedural rights of the litigants. Setting a trial on the merits one day after a hearing of an as yet unheard motion to dismiss could be viewed as peremptory and somewhat unorthodox. However, Tanasi Music Group, LLC and Edward Arnold must demonstrate that they have actually been prejudiced by the trial court’s procedural decision if they are to prevail on appeal. Tenn. R. App. P. 36(b). Despite being afforded numerous opportunities, neither of these parties has presented any convincing argument that the trial court’s decision in this case prevented them from (1) preparing and filing an answer, (2) requesting a jury, or (3) being prepared for a trial on the merits.
Cynthia Statham Heimermann Boyer v. Charles William Heimermann - M2006-01566-COA-R3-CV View
Davidson County - This appeal involves a custody and visitation dispute arising more than a decade after the parents were divorced. The original divorce decree provided that the three children, then between two and seven years of age, would reside with their mother during the school year and with their father during the summer. Because of the children’s growing dissatisfaction with this arrangement, their mother filed a petition in the Circuit Court for Davidson County requesting that the length of the father’s summer visitation be reduced. The trial court dismissed the petition at the close of the mother’s case on the ground that she had failed to prove a material change in circumstances that would warrant a revision of the custody arrangement. The mother appealed. We have determined that the changing needs of the children related to their growing older constitute a material change in circumstances. Accordingly, we reverse the dismissal of the mother’s petition and remand the case for further proceedings consistent with this decision.
In RE: R.F., N.F.,J.F., and Z.F. - E2006-01928-COa-R3-PT View
Bradley County - This is an appeal of the trial court's termination of the parental rights of W.F. and T.F. to their four minor children upon finding by clear and convincing evidence that grounds for termination existed and that termination was in the children's best interest. On appeal, the parents argue that there was insufficient proof of the statutory grounds for termination. Upon our determination that there was clear and convincing evidence both of the parents' substantial noncompliance with the permanency plan entered into in this case and of T.F.’s mental incompetence, we affirm the judgment of the trial court.
Lauren Eugene Leslie vs. Gene Leslie - E2006-00043-COA-R3-CV View
Monroe County - The plaintiff, Lauren Eugene Leslie, fell down steps at his parents’ home as he was carrying a toilet that he had removed from their “powder room.” The plaintiff filed this suit against his father, Gene Leslie, alleging negligence. Both the plaintiff and his father testified at trial that the plaintiff fell because he tripped over a bowl of dog food that had been left on the steps by the defendant. This version of how the accident happened was at odds with a statement given by the defendant to an insurance adjuster one month after the accident. Following a bench trial, the court concluded that the plaintiff had failed to prove that his fall was caused by the bowl of dog food. The plaintiff appeals, challenging the trial court’s credibility determinations and conclusion that causation had not been proven. We affirm.
F.E. Moon vs. Lee Buff, et al - E2006-00758-COA-R3-CV View
Hamilton County - F.E. Moon (“Plaintiff”) sued Lee Buff (“Defendant”) claiming, in part, that Plaintiff had acquired real property known as Courthouse Street by virtue of adverse possession. The case was tried without a jury. After trial, the Trial Court entered an order finding and holding, inter alia, that Plaintiff had not proven adverse possession and that Defendant, and any other adjoining property owners whose deeds refer to Courthouse Street and other unopened roads shown in the plat of record, had the right to use Courthouse Street and those other roads as a means of ingress and egress. Plaintiff appeals to this Court. We affirm.
Linda Alexander Owens v. James Emery Owens - M2005-00639-COA-R3-CV View
Davidson County - This appeal involves the financial aspects of the dissolution of a marriage that lasted approximately twenty-five years. Both parties sought a divorce in the Circuit Court for Davidson County. Following a bench trial, the trial court declared the parties divorced, divided the parties’ marital estate, and awarded the wife rehabilitative alimony for six years. On this appeal, the wife takes issue with the trial court’s valuation and division of the marital estate and with the amount and duration of the spousal support award. She also takes issue with the trial court’s refusal to award her attorney’s fees and discretionary costs. We have determined that the evidence does not support the trial court’s valuation of one marital property interest and that a more equitable division of the marital estate is required. We have also determined that the amount and length of the wife’s spousal support should be increased. Finally, we have determined that the trial court erred by denying the wife’s request for payment of her attorney’s fees but did not err by declining to award her discretionary costs.
Julie Barnes Anderson v. Earl Jay Anderson - M2005-02029-COA-R3-CV View
Davidson County - The trial court granted both parties a divorce pursuant to Tenn. Code Ann. § 36-4-129 and awarded custody of their two minor children to the wife by stipulation. The court ordered the husband to pay child support in accordance with the current guidelines, as well as both rehabilitative alimony and alimony in futuro. The husband argues on appeal that the trial court erred because our Supreme Court has barred concurrent awards of both types of alimony. However, a recent legislative enactment has specifically authorized such awards, thereby rendering husband’s argument moot. The husband also argues that the total amount of alimony ordered was excessive and was beyond his ability to pay, and that the trial court erred in decreeing an automatic increase in alimony in futuro when the children reach the age of maturity. We agree with both contentions and we modify the trial court’s alimony award accordingly. In all other respects we affirm the judgment of the trial court.
HillOak Realty Co. vs. Loren Chumley, Comissioner of Revenue For the State of Tennessee - E2006-00213-COA-R3-CV View
Knox County - Hilloak Realty Company, a Tennessee limited partnership organized in 1984, purchased an apartment complex in Oak Ridge. The purchase was financed by a loan secured by a mortgage on the property. Over the years, Hilloak took deductions on its yearly federal income tax return representing depreciation of the improvements on the property. These deductions resulted in a corresponding reduction in Hilloak’s basis in the property for federal income tax purposes. Prior to 1999, limited partnerships in Tennessee were not subject to the Tennessee Franchise and Excise Tax; hence, Hilloak’s depreciation on its federal returns was of no benefit to the company as far as a tax liability to the State of Tennessee is concerned. When, in 2003, Hilloak found it necessary to transfer title to the property to the mortgage holder in return for cancellation of the underlying indebtedness, the Commissioner of Revenue for the State of Tennessee assessed Hilloak for excise taxes on the “sale” based upon the company’s “federal” depreciated basis in the property. The trial court, in response to a complaint filed by Hilloak against the Commissioner, held, on the issue of Hilloak’s liability for excise taxes predicated upon the transfer to the mortgage holder, that T.C.A. § 67-4-2006(b)(2)(C) permitted Hilloak to increase its depreciated basis in the property by the amount of the pre-1999 depreciation deductions taken pursuant to federal law for which no Tennessee benefit accrued to Hilloak. The court’s ruling resulted in no excise taxes being due. The Commissioner appeals. The issue on appeal is whether Hilloak is required to utilize its “federal” basis in the property in determining if it is obligated to pay state excise taxes as a result of the “sale” of the property. We hold that Hilloak’s basis for excise tax purposes is different from its “federal” basis. Accordingly, we affirm.
Intermodal Cartage Co, Inc v Timothy Cherry, et al. - M2005-01635-COA-R3-CV View
Davidson County - This case concerns an employment agreement entered into by employees of a company. The employment agreement contained provisions against solicitation and competition. Four employees who signed the agreement later left the company and went to work for one of its main competitors. The company leveled numerous allegations against the four employees and their new employer, including breach of the employment agreement, breach of duty of loyalty, unlawful inducement of breach of contract, and tortious interference with contractual relations and business relations. The trial court granted summary judgments in favor of the four employees and their new employer. The judgment of the trial court is reversed and the case remanded for further proceedings.
E. J. Bernard, et al. v. Nashville Metro Gov't / Davidson Co - M2006-00165-COA-R3-CV View Davidson County - Two former police officers sought several tangible benefits of retirement guaranteed by Metro ordinances and police department policies. The officers requested such benefits and were denied, the Deputy Chief of Police citing a lack of good standing, as required by the ordinances, as the reason. The officers filed a declaratory judgment action. Metro filed a motion to dismiss asserting that a common law writ of certiorari should have been filed instead. The trial court granted the motion to dismiss. We reverse and remand.
Jim Beson, et al. v. The Guardian Warranty Corp. - M2005-02538-COA-R3-CV View
Lincoln County - A company that sells warranties on used cars appeals trial court’s judgment finding that truck repairs are covered by its warranty, alleging inter alia that the owner suffered no injury and the warranty excluded these particular repairs. We hold that the damaged engine parts were “covered components,” the damage was not caused by the failure of a non-covered component, and the warranty company’s denial of coverage did not relieve it of liability. Accordingly, we affirm the trial court and remand for specific modifications in the judgment.
Carolyn Johnson Clark v. Timothy S. Fournet - M2006-00616-COA-R3-CV View
Putnam County - A plaintiff appeals the dismissal of her action by the trial court and argues that her filing of a complaint reflecting an old docket number complied with the saving statute, Tenn. Code Ann. § 28-1-105(a), and with Tenn. R. Civ. P. 3. Because we find no authority for limiting the availability of the saving statute on the basis of the file number or docket number assigned, we reverse.
Larry D. Pittenger, et al. v. Ruby Tuesday, Inc. - M2006-00266-COA-R3-CV View
Davidson County - Restaurant patron and wife filed negligence and negligence per se action against restaurant for injuries patron received to his ankle while attempting to open restaurant door for wife. Restaurant filed motion for summary judgment, which trial court granted dismissing all of Plaintiffs’ claims. Plaintiffs appealed. We affirm the decision of the trial court, finding that (1) Plaintiffs failed to show that restaurant breached any duty to patron; and (2) Plaintiffs failed to establish that the building code imposed an obligation on Defendant.
Antwan Anglin vs. Sgt Leroy Turner, Warden, et al - E2006-01764-COA-R3-CV View
Morgan County - Prisoner filed Petition for a writ of certiorari. The Trial Court refused to issue the writ. We affirm.
Federated Rural Electric Insurance Exchange, et al. v. William R. Hill, et al. - M2005-02461-COA-R3-CV View
Davidson County - Employer and its insurer filed suit against employee for fraud in the procurement of workers'
compensation benefits. Employee and his wife filed a counter-complaint alleging intentional infliction of emotional distress. retaliatory discharge and loss of consortium. The trial court dismissed the counter-complaint for failure to state a claim. Employee sought to amend the counter-complaint to add procurement of breach of employment contract and a tortious interference claim against the insurer. The trial court also denied these claims. Employee and his wife appeal. We reverse in part, affirm in part, and remand.
Ronald Ray Stoner v. Tiffany Denise Stoner Morgan - M2007-00474-COA-R9-CV View
Sumner County - This appeal involves a mother’s efforts to invoke Tenn. Code Ann.
§ 36-5-3003(2005) to transfer a post-divorce custody dispute from the Sumner County General Sessions Court to the Circuit Court for Knox County. The general sessions court ordered the case to be transferred but granted the father permission to appeal to this court pursuant to Tenn. R. App. P. 9. We concur with the general sessions court that this is a proper case for an interlocutory appeal. We have also determined that the trial court’s order transferring the case to Knox County must be reversed because the children have not resided in Knox County for at least six months as required by Tenn. Code Ann. § 36-5-3003(b).
Joan Frye, et al. v. St. Thomas Health Services, et al. - M2006-00047-COA-R3-CV View
Davidson County - Employee and Husband filed action against hospital and other related persons and entities alleging various claims arising from employee’s employment with hospital including claims for hostile work environment, age discrimination, constructive discharge, retaliation, wrongful discharge, and aiding and abetting. Hospital filed motion for summary judgment which was granted by the trial court, dismissing all of Plaintiffs’ claims. Plaintiffs appealed. We affirm the decision of the trial court in all respects.
Kevin Wayne Harless vs.Hope Ann Weldon Harless - E2006-00192-COA-R3-CV View
Hawkins County - Kevin Wayne Harless (“Father”) filed a complaint for divorce against his wife, Hope Ann Weldon Harless (“Mother”), seeking to dissolve their marriage of some 7 years. Mother answered and filed a counterclaim. Each of the parties sought to be designated as the primary residential parent of the parties’ three young daughters. A pendente lite order was entered temporarily designating Mother as the primary residential parent. Following a plenary trial, the court below announced its decision from the bench, stating it found that the children’s best interest would be served by designating Father as their primary residential parent. Four months passed before a judgment was entered incorporating the trial court’s oral pronouncements. Before the judgment was entered, Mother filed a petition for contempt, contending that, since the trial court had said that its decree would be effective when the final judgment was entered, Father was obligated to pay her child support for the four-month period immediately following the trial court’s oral pronouncement of its decision. The trial court held that Father was under no obligation to pay child support once the court orally decreed that Father would be the children’s primary residential parent. Mother appeals, claiming the evidence preponderates against the trial court’s finding that it was in the children’s best interest for Father to be their primary residential parent. Mother also challenges the trial court’s conclusion that Father was not required to pay child support and alimony during the four-month period immediately following the court’s announcement from the bench. We affirm the trial court’s designation of Father as the children’s primary residential parent, but reverse the court’s judgment that Father was not required to pay child support for the four-month period between pronouncement of the decision and the entry of the final judgment.
Harvey Joe Oakes vs. Rhonda Gail Oakes - E2006-00656-COA-R3-CV View
Bledsoe County - This is a divorce case. Harvey Joe Oakes (“Husband”) appeals, arguing that the trial court erred (1) in awarding Rhonda Gail Oakes (“Wife”) one-half of his military disability benefits; (2) in classifying a particular vehicle as marital property; (3) by failing to make an equitable division of the parties’ marital estate; (4) in awarding Wife $400 per month in rehabilitative alimony for 36 months; and (5) in awarding Wife attorney’s fees. Wife contends that her alimony should be in futuro rather than rehabilitative. The trial court’s award to Wife of one-half of Husband’s disability benefits and its award of attorney’s fees are reversed. The court’s classification of the subject vehicle and the court’s division of the marital estate is affirmed. The award of alimony is modified, and, as such, is affirmed.
Robert W. Bibile D/B/A/ Chalet Village Chalets vs. Ted Mullikin, et al - E2005-02064-COA-R3-CV View
Sevier County - Robert W. Bible d/b/a Chalet Village Chalets (“Plaintiff”) sued Ted Mullikin and Ted Mullikin d/b/a Mountain Rentals of Gatlinburg (“Defendant”) alleging, in part, that Defendant was in breach of a contract for the sale by Plaintiff to Defendant of Plaintiff’s chalet rental business. The case was tried without a jury, and the Trial Court granted Plaintiff a judgment against Defendant for $21,931.35. Defendant appeals to this Court. We affirm.
In Re: T.N.L.W. - E2006-01623-COA-R3-PT View
Sullivan County - H.C.W. (“Mother”) appeals the judgment of the trial court terminating her parental rights to her child, T.N.L.W. We hold that the evidence preponderates against the trial court’s conclusion that the Tennessee Department of Children’s Services (“DCS”) proved by clear and convincing evidence that (1) Mother was in substantial noncompliance with the permanency plan, Tenn. Code Ann. § 36-1-113(g)(2); and (2) the conditions that led to the child’s removal persist, and are unlikely to be remedied at an early date, Tenn. Code Ann. § 36-1-113(g)(3)(A). We reverse the decision of the trial court and remand with instructions to dismiss the petition to terminate Mother’s parental rights.
Jimmy Alan Murphy, et al vs. Lakeside Medical Center - E2006-01721-COA-R3-CV View
Hamilton County - The issue presented in this medical negligence case is whether the Plaintiffs’ lawsuit was timely filed. At the request of Mr. Murphy’s employer, physicians at Lakeside Medical Center (the “Medical Center”) performed an annual physical examination, including a hearing test, on Mr. Murphy for over 20 years. Mr. Murphy was diagnosed with noise-induced hearing loss by an independent physician on January 21, 2004, and reported this information to his employer the next day. On February 13, 2004, Mr. Murphy obtained copies of the Medical Center’s records indicating that Mr. Murphy had been experiencing hearing loss at a medically unacceptable rate for the past eight years. The Plaintiffs, Mr. Murphy and his wife, Glenda Murphy, filed their lawsuit on February 2, 2005, alleging that the Medical Center negligently failed to diagnose and treat Mr. Murphy’s hearing loss over a period of several years, and that the Medical Center fraudulently concealed Mr. Murphy’s hearing loss. The trial court granted the Medical Center’s motion for summary judgment, finding that the Plaintiffs filed their complaint after the one-year statute of limitations had expired. After careful review, we hold that the Plaintiffs had notice of their claim no later than January 21, 2004, and their lawsuit was not timely filed. We also hold that the Plaintiff’s allegation of fraudulent concealment is without merit. The decision of the trial court is affirmed.
Chattanooga Restaurant Partnership, Inc. vs. City of Chattanooga Beer Board - E2006-02183-COA-R3-CV View
Hamilton County - The City of Chattanooga Beer Board (the “Beer Board”) temporarily suspended for seven days the beer license issued to the Chattanooga Restaurant Partnership d/b/a Chattanooga Food and Drink, which operates a bar commonly known as “the Drink”. The seven day suspension was based on a finding of two violations of Chattanooga City Code 5-48 (A). The Drink appealed the decision to the Trial Court. Following a trial de novo, the Trial Court found only one violation of the applicable ordinance and reduced the suspension to three days. The Trial Court also offered the Drink the option of paying a $1,500 fine in lieu of the suspension. The Beer Board appeals claiming the Trial Court erred in finding only one violation of the ordinance and in offering the Drink the option of paying a fine in lieu of suspension. We affirm.
Nicholas J. Reno, et al vs. Suntrust, Inc., et al - E2006-01641-COA-R3-CV View
Hamilton County - This appeal presents the issue of the enforceability of an arbitration provision contained in a contract for credit life insurance. After the death of her husband, Linda Reno brought this action to enforce the credit life insurance agreement entered into between the Renos and SunTrust, Inc. that provided for cancellation of the Renos’ mortgage debt in the event one of them died. SunTrust filed a motion to compel arbitration, which the trial court denied, finding the arbitration provision unenforceable. We hold that the arbitration agreement is supported by the parties’ mutual assent, and that it is not unconscionable. We therefore vacate the trial court’s judgment and remand with direction to order the parties to proceed with arbitration.
Tennessee, ex rel. Lajauta McNeil Dauda v. Corry Jamal Harris - W2006-01314-COA-R3-JV View
Shelby County - This is a Title IV-D child support case. The Appellant State of Tennessee ex rel. LaJuanta McNeil Dauda was granted an order legitimizing the minor child and setting Appellee/Father’s child support obligation going forward. Appellee/Father filed a petition to set aside paternity, which was denied. Appellee/Father’s child support arrears were determined and, thereafter, the child’s mother sought to have Appellee/Father’s support obligation suspended and any arrears forgiven. The trial court granted the motion and the State appeals. We reverse and remand.
Cases posted the week of 03/19/2007
Joe Ralph Walker v. Karry Darden Walker - M2006-00071-COA-R3-CV View
Montgomery County - This is a divorce case. The trial court declared the parties divorced, divided their marital property, and awarded Karry Darden Walker (“Wife”) rehabilitative alimony. She appeals, contending that the trial court erred (1) in awarding rehabilitative alimony, rather than alimony in futuro, and (2) in its division of the marital property. We affirm.
David Prewitt v. Semmes-Murphey Clinic, P.C., et al. - W2006-00556-COA-R3-CV View
Shelby County - The plaintiff was rendered a quadriplegic after a car accident, and he received care at The Regional Medical Center at Memphis. The hospital staff included University of Tennessee School of Medicine residents, private physicians who were dual employees of a private corporation and the University of Tennessee as part of its residency training program, and nurses employed by another private corporation. The dual employee physicians treated patients independently in their capacity as employees of the private corporation and supervised resident physicians in their capacity as employees of the University of Tennessee. A University of Tennessee resident physician intended to perform a lumbar puncture procedure on the plaintiff, and he left a written request for a nurse for a lumbar puncture kit for said procedure. The nurse provided this kit, but did not include an antiseptic. The day of the procedure, the resident physician lowered the plaintiff’s bed rail and placed the plaintiff on his side in anticipation of performing the lumbar puncture, but when he noticed that an antiseptic was missing from the kit, he briefly left the plaintiff unattended to obtain the antiseptic. When the resident physician returned to the room, the plaintiff had fallen off the bed onto the floor. The plaintiff ruptured his spleen from the fall, requiring major surgery which resulted in subsequent complications. The plaintiff filed suit in both the Tennessee Claims Commission and the circuit court against the resident, the University, the hospital, the nurse, and the present corporate defendants, alleging claims of medical malpractice and negligent supervision. The liability of the resident and the University was stipulated by the parties in the Claims Commission, and these parties were dismissed from the circuit court proceeding on the basis of immunity. The present defendant corporations remained in the circuit court action. After discovery, the plaintiff moved for summary judgment in the circuit court. The defendant physicians’ corporation moved for summary judgment based upon immunity and the plaintiff’s lack of expert testimony, and the defendant nurse’s corporation moved for summary judgment based upon the plaintiff’s lack of expert testimony. The trial court granted both defendants’ motions for summary judgment and certified the judgments as final. The plaintiff filed a timely notice of appeal to this Court. We affirm.
E & A Northeast Ltd Partnership v. Music City Record Distributors - M2005-01207-COA-R3-CV View
Davidson County - The trial court granted summary judgment to a commercial landlord on its claim against a retail tenant for a deficiency in back rental payments. The tenant argues that it is not liable for any deficiency because it alerted the landlord by letter that it planned to reduce its monthly payments after a certain date and the landlord subsequently accepted and cashed a number of rental checks for the reduced amount. On appeal, the tenant argues that its actions served to modify the parties’ agreement. In the alternative, the tenant argues that the landlord either waived its rights to the original rental amount or should be estopped from insisting on full payment. We affirm the trial court.
Tom Wicks and Kimberly Wicks v. The Vanderbilt University d/b/a VUMC - M2006-00613-COA-R3-CV View
Davidson County - This appeal comes from a medical malpractice case. The plaintiff underwent a bone marrow harvest procedure at a university hospital in April of 2003, after which the plaintiff began experiencing pain and numbness in his legs, back, and abdomen. The plaintiff and his wife filed a complaint against the university hospital alleging that the doctor and nurse performing the procedure had done so negligently and without the plaintiff’s informed consent, and that the hospital was thus liable through respondeat superior. The plaintiff also alleged that the defendant had been directly negligent in its failure to properly supervise the attending doctor and nurse, but this claim was dismissed prior to trial. During discovery, the parties disputed the admissibility and nature of certain expert testimony and documents, and the trial court dealt with this evidence through its granting of specific motions in limine filed by the university hospital prior to trial. A jury trial was held, and the jury found for the defendant as to lack of informed consent and medical malpractice. The trial court granted the plaintiff a new trial on the informed consent claim, and it entered a final judgment in favor of the defendant on the medical negligence and negligent supervision claims. A timely appeal was filed to this Court. We reverse and remand for a new trial on both the medical malpractice and negligent supervision claims.
In Re: Estate of Paul Harris Nelson, et al. - W2006-00030-COA-R3-CV View
Madison County - This is an action in conversion, fraud, and breach of fiduciary duty instituted by will beneficiaries against the decedent’s sister, who was also the Executrix of his estate. The threshold issue involves subject matter jurisdiction for this appeal. Although a recent amendment to the Tennessee Code would place appellate jurisdiction for this case in the trial court, we hold that a more specific, prior private act conferring appellate jurisdiction on this Court controls.
The second, and pivotal, issue in this dispute involves the ownership of four certificates of deposit (CD) that were purchased by Mr. Paul Harris Nelson (Mr. Nelson), the decedent, and that were later claimed and cashed by Ms. Margie Little (Ms. Little), the Defendant/Appellee, just prior to the opening of the estate. The Estate of Mr. Nelson (the Estate) appeals the lower court’s ruling that Ms. Little owned the CDs at the time of Mr. Nelson’s death because the siblings held the CDs jointly with a right of survivorship. Thus, the Estate also appeals the court’s findings of no conversion, fraud, or breach of fiduciary duty by Ms. Little with respect to the CDs. We affirm.
George & Rebecca Muse d/b/a J & E Construction Co. vs. First People's Bank of Tennessee - E2005-02869-COA-R3-CV View
Knox County - In this breach of contract case, the plaintiffs allege that the defendant violated the terms of a line of credit promissory note by discontinuing disbursements to the plaintiffs under the note without cause. The defendant filed a motion for summary judgment upon grounds that the plaintiffs’ claims had already been settled under a prior settlement agreement and that the plaintiffs were without standing to pursue their claims. The trial court granted the motion. Upon our finding that the evidence does not support the trial court’s ruling as to all of the plaintiffs’ claims, the trial court’s judgment is vacated in part and affirmed in part, and the case is remanded for trial on the merits.
Cedric L. Coppage v. Veronica Y. Green - W2006-00767-COA-R3-JV View
Shelby County - This is a petition to set aside an order establishing parentage. The child at issue was born in 1990. In 1997, the juvenile court entered an order establishing the petitioner as the child’s father. Eight years later, the petitioner took an independent DNA test which indicated that he was not the child’s biological father. The petitioner then filed a petition to disestablish his parentage of the child, attaching the results of the independent DNA test to his petition. After a hearing, the juvenile court referee recommended court-approved DNA testing to prove or disprove the petitioner’s parentage. This recommendation was confirmed by the juvenile court judge. The respondent mother filed a motion for a rehearing before the juvenile court judge. The motion was granted. After a rehearing, the juvenile court judge dismissed the petitioner’s petition for court-ordered DNA testing to determine parentage. The petitioner now appeals. We reverse, determining that relief should be granted under these circumstances, and remand to the trial court for further proceedings.
In Re: Adoption of J.S.H. - W2006-00156-COA-R3-CV View
Weakley County - This is an adoption case involving a child support arrearage. By consent of the biological father, the trial court entered an order terminating the father’s parental rights and permitting the husband of the biological mother to adopt the child. The order further stated that the biological father had satisfied all child support obligations. The State intervened in the action and filed a motion to alter or amend the order to include a provision stating that the father still owed child support. At a hearing, the mother stated that she had no desire to collect any child support arrearages from the father. In light of this, the trial court amended its order to reflect that the biological father owed the State a reduced child support arrearage, but owed nothing to the mother. The State now appeals, arguing that the trial court’s order constituted an impermissible retroactive modification of the original child support order. We modify the order, finding that the trial court’s order was, in fact, a retroactive modification of a valid child support order.
State of Tennessee, ex rel. Elizabeth Wray v. Kelly Collins - W2006-00119-COA-R3-JV View
Gibson County - This appeal involves a series of cases – a paternity action, a dependency and neglect proceeding, and the present case, a petition to establish paternity and set child support. The first paternity suit had been dismissed by the mother after genetic testing had taken place, but before the court entered an order of parentage. During subsequent dependency and neglect proceedings, a grandmother had received temporary custody of the child. Finally, the State of Tennessee filed this case on the grandmother’s behalf to establish paternity and collect child support from the child’s biological father. The father insisted that he had never been properly served in the dependency and neglect proceeding, so the trial court dismissed the State’s petition. For the following reasons, we reverse and remand.
M. Lingle vs. Fortis Health Insurance Company - E2006-00690-COA-R3-CV View
Hamilton County - The Trial Court granted defendant summary judgment on the ground that the medical bills incurred by plaintiff were excluded from coverage under the health insurance provided by defendant. On appeal, we vacate the summary judgment and remand.
Jonathan D. Reed vs. Town of Louisville - E2006-01637-COA-R3-CV View
Blount County - The Trial Court dismissed plaintiff’s Declaratory Judgment Action on the grounds that all necessary parties weren’t included. On appeal, we affirm.
Cases posted the week of 03/12/2007
Crossley Construction v. National Fire Ins., et al. - E2006-00397-COA-R3-CV View
Knox County - Crossley Construction Corporation (“Plaintiff”) sued National Fire Insurance Company of Hartford (“Defendant”) and Sequatchie Concrete Service for claims related to a payment and performance bond issued by Defendant for construction of a residence hall for Western Carolina University (“WCU Project”). Defendant filed a motion for summary judgment, which the Trial Court granted. Plaintiff appeals claiming that the Trial Court erred in granting summary judgment on its promissory fraud claim, its claim for punitive damages for the promissory fraud, and its claim under the Tennessee Consumer Protection Act of 1977, Tenn. Code Ann. § 47-18-101, et seq. We affirm.
Helen Bates v. James Neely, Commissioner et al. - M2006-01026-COA-R3-CV View
Lewis County - A former employee of the Highland Youth Center appeals the denial of her claim for unemployment benefits. The employee was subjected to a severe assault while at work at the youth center. She attempted to return to work after the incident but was unable to remain at work due to the severe psychological trauma associated with the assault at the workplace. She filed a claim for unemployment benefits, which was denied by the Department of Labor, the Appeals Tribunal, and the Board of Review on the ground she did not have “good cause” to terminate her employment. The Chancery Court affirmed the denial of benefits, and this appeal followed. We reverse finding the employee had good cause for terminating her employment at the Highland Youth Center.
Frank H. McNiel v. Susan R. Cooper - M2005-01206-COA-R3-CV View
Davidson County - This appeal involves the authority of the Tennessee Board of Medical Examiners to review the medical records of a physician’s patients. After the Board requested access to his patients’ records in accordance with Tenn. Code Ann. § 63-1-117 (2004), the physician filed a declaratory judgment action in the Chancery Court for Davidson County challenging the constitutionality of the statute. The physician asserted that the statutory procedure for gaining access to medical records amounted to an unreasonable search and seizure because it failed to provide him with pre-enforcement judicial review of the reasonableness of the Board’s request. He also claimed that the statute’s notice provisions violated due process. Both the physician and the Board filed motions for summary judgment. The trial court determined that Tenn. Code Ann. § 63-1-117(a)(3), the portion of the statute authorizing disciplinary sanctions against physicians who willfully fail to produce records, was unconstitutional and awarded the physician $20,916 in attorney’s fees. The Board perfected this appeal. We have determined that physicians in Tennessee have no reasonable expectation that they can shield their patients’ records from the Board’s regulatory oversight and that the Board may discipline physicians who willfully refuse to comply with lawful requests for patient records that comply with Tenn. Code Ann. § 63-1-117.
Marie Lee v. Franklin Special School District Board of Education, et al. - M2005-02716-COA-R3-CV View
Williamson County - A tenured teacher, whose position was abolished due to a system wide reduction in force, filed this action due to the School District’s failure to afford her preferential consideration for reemployment pursuant to the Teacher Tenure Act, Tenn. Code Ann. § 49-5-511(b)(3). The trial court summarily dismissed the claim, concluding as a matter of law, the teacher was not entitled to preferential consideration for teaching positions that were to start after July 1, 2002, when her tenure expired due to the fact she was sixty-five years of age. We have concluded the teacher’s right to preferential consideration vested prior to July 1, 2002, which afforded her the right to be placed and to remain on the preferred list for up to two years, until she refused a bona fide offer of reemployment for a comparable position or accepted a position. Moreover, since the Board of Education did not consider the competence or qualifications of Ms. Lee to hold a teaching position after the reduction in force announcement, as it was statutorily entitled to do pursuant to Tenn. Code Ann. § 49-5-511(b)(3), it waived the right to contend the teacher was unqualified, incompatible or unsuitable to hold one of the available teaching positions for which she interviewed. We therefore conclude the teacher was entitled to reemployment for the 2002-03 school year and that she was wrongfully denied reemployment. The order granting the School District’s Motion for Summary Judgment is vacated, and the matter is remanded for entry of an order granting the teacher’s Motion for Summary Judgment and determination of the compensation the teacher is entitled to receive for the 2002-03 school year.
Douglas Craig, et al. v. Lindsey Loving, et al. - M2005-02216-COA-R3-CV View
Wilson County- Findley and Nelle Mahaffey were owners of Sunshine Transport, which provided transportation to TennCare patients. They employed roughly twenty drivers and carried no workers’ compensation insurance, but obtained a policy of automobile insurance from Mountain Laurel Assurance Company with uninsured-underinsured motorist coverage of $1,000,000. Douglas Craig was a driver for Sunshine Transport, and on January 13, 2003, while driving in the course of his employment, was injured in a collision with an automobile driven by Lindsey Loving, minor step-daughter of Thomas Thompson. Craig recovered a workers’ compensation judgment against the Mahaffeys in the amount of $189,494.77, on which judgment the Mahaffeys paid a total of $50,000. Craig filed suit against Loving and Thompson, recovering a judgment against them for $375,293.46. The liability carrier for Loving and Thompson paid into court its $50,000 policy limit. The Mahaffeys intervened asserting subrogation interests for the workers’ compensation judgment entered against them. Mountain Laurel sought offsets under its underinsured motorist policy for the $50,000 policy limit paid by Thompson and Loving together with the $189,494.77 workers’ compensation judgment. The trial court determined that Mountain Laurel was entitled to a $50,000 offset for the payments made on behalf of Loving and Thompson and also credit for the $50,000 actually paid by the Mahaffeys but not for the remainder of the unpaid workers’ compensation benefits. The trial court further held that the Mahaffeys were not entitled to any subrogation interests. Mountain Laurel and the Mahaffeys appeal. The judgment of the trial court relative to the Mahaffeys is affirmed. The judgment of the trial court as to Mountain Laurel is reversed, and the case is remanded to the trial court for such further proceedings as may be necessary.
Martin Moreno v. Jose Servando Ruiz, et al. - M2005-02223-COA-R3-CV View
Davidson County - A small contractor entered into an oral agreement to install brick facades on new houses in a Mt. Juliet subdivision. He did brickwork on eleven houses pursuant to the agreement, and was paid in cash for the work on an irregular basis. Because he believed the other party to the agreement did not pay him in full, he walked off the job and brought suit for breach of contract. A bench trial in Circuit Court ultimately resulted in a net judgment for the plaintiff in the amount of $397.50. He argued on appeal that the evidence showed that he was entitled to receive over $10,000 on his claim. We affirm the trial court.
In Re C.M.C., et al - E2006-01254-COA-R3-PT View
Claiborne County - M.L. (“Mother”) appeals the trial court’s decision terminating her parental rights. We hold that the evidence does not preponderate against the trial court’s finding by clear and convincing evidence that the statutory grounds for termination found at Tenn. Code Ann. § 37-2-403(a) and § 36-1-113(g) existed, and that termination was in the best interest of the children. Consequently, we affirm the judgment of the trial court.
In Re: L.S.S. - E2006-01989-COA-R3-PT View
Scott County - In this parental termination case, Father does not contest the grounds for termination, but argues that termination of his parental rights is not in the best interest of his daughter. After careful review of the evidence and applicable authorities, we hold that the evidence does not preponderate against the trial court’s finding by clear and convincing evidence that termination of Father’s parental rights was in the best interest of his daughter. Therefore, we affirm.
City of Memphis v. Civil Service Commission, et al. - W2006-01561-COA-R3-CV View
Shelby County - This administrative appeal arises out of the termination of Officer Lenora Armstead’s (Officer Armstead) employment with the Memphis Police Department (the Department). The City took this action as a result of a public altercation between Officer Armstead and another off-duty police officer. It found that Officer Armstead had violated DR-104 Personal Conduct and terminated her employment because of this violation and other disciplinary proceedings previously brought against her. The Civil Service Commission of the City of Memphis (the Commission) reversed the City’s decision to terminate her employment because it found the action to be unreasonable. The City appealed to Shelby County Chancery Court, where the chancellor reversed the Commission’s decision, finding it to be arbitrary and capricious. We find that the City proved a violation of DR-104 but that the Commission’s decision was supported by substantial and material evidence. We reverse and remand.
Cases posted the week of 03/05/2007
Paul Ray Seaton, et al vs. Richard
Rowe, et al - E2006-00575-COA-R3-CV View
Monroe County - Carl and Zola Howell leased
a 60 acre tract of land to Diversified Systems, Inc.
and, because the land was landlocked, a 50-foot easement.
The Howells later entered into an option agreement with
Paul and John Seaton (the “Seatons”). The
option agreement granted the Seatons a ten-year option to
purchase over 581 acres of land. The option agreement excepted
from the option to purchase the 60 acre tract of land then
leased to Diversified Systems, Inc. The issue on appeal concerns
whether, in the option agreement, the parties intended to
exclude only the 60 acre tract of land, or the 60 acre tract
plus the 50-foot easement tract. The trial court determined
that the exclusion covered both the 60 acre tract and the
50-foot easement tract. We reverse the judgment of the trial
court and remand for further proceedings.
Frank Shipp v. Ditch Witch Equipmen, Inc. - M2005-02354-COA-R3-CV View
Rutherford County - This is a breach of contract case. The defendant equipment company sells and leases underground construction equipment. The plaintiff worked for the defendant company as an outside salesman with a sales territory. The plaintiff salesman operated under a verbal employment agreement and was paid a minimum weekly salary plus commissions. During his employment, the plaintiff actively marketed equipment to a customer in his sales territory, and the customer ultimately signed a lease for several pieces of equipment. Soon after the lease was executed, the plaintiff quit working for the defendant. Subsequently, he sought his commissions due on the lease. The defendant equipment company refused to pay the commissions, claiming that the plaintiff salesman was not due any commissions on the lease because he quit work before the customer made any payments on the lease. The plaintiff filed the instant lawsuit for the commissions. After a bench trial, the trial court held that the plaintiff was entitled to commissions on the lease, but only with respect to one of the pieces of leased equipment. The plaintiff now appeals, arguing that he is entitled to commissions on two other pieces of equipment. We reverse, finding that the evidence preponderates in favor of a finding that the plaintiff was entitled to commissions for all three pieces of equipment.
Mary Kay Thompson v. Clayton Thompson, Jr. - M2005-02762-COA-R3-CV View
Williamson County - This is a post-divorce proceeding wherein Appellee sought to enforce the provisions of a marital dissolution agreement and Appellant sought to modify alimony and child support provisions because of an alleged change of circumstances. The trial court ruled that Appellant was intentionally underemployed and attributed income that was comparable to his income at the time of divorce. Finding that the evidence in the record does not support a finding of willful underemployment, we vacate the judgment of the trial court and remand the case for further proceedings.
Curtis R. Thrapp vs. Mary Elizabeth Thrapp - E2006-00088-COA-R3-CV View
Blount County - The parties were divorced in Oregon where the Court ordered the custodial arrangement for the only child of the marriage. The Mother then moved to Colorado, where she filed suit in Colorado in the custody dispute. She then moved to Tennessee, where the Father sued her over the ongoing dispute. The Colorado Court ultimately declined jurisdiction and the Tennessee Court ordered a change of the custody. The mother has appealed. We affirm the change of custody.
Victoria Hinkle vs. Estate of Jack Hartman, et al - E2006-01052-COA-R3-CV View
Blount County - At the time the deceased and plaintiff divorced, the deceased agreed to maintain the plaintiff as beneficiary of his life insurance policy with his employer. He subsequently left the employer, but returned to the employer and was issued another policy of life insurance on being re-employed, but made his then wife and his two children beneficiaries of that policy. Upon his death, plaintiff sued to enforce the terms of the Marital Dissolution Agreement, but the Trial Court refused and dismissed plaintiff’s action. On appeal, we hold that plaintiff is entitled to benefits under the second policy to the extent of the benefits agreed to under the terms of the first policy.
BB&T as successor in trust to BankFirst vs. Rodney Milligan - E2005-02943-COA-R3-CV View
Loudon County - Appellant’s Rule 60 Tenn. R. Civ. P. Motion asked that the Judgment be set aside on the ground that appellant was not notified of the trial date. The Trial Court overruled the Motion. We affirm.
In The Matter of : ADC, et al Danny Carroll vs. Gena Williamson - E2006-00771-COA-R3-PT View
Blount County- The Trial Court terminated the petitioner’s parental rights to the two children. On appeal, we vacate the Trial Court’s Judgment and remand, with instruction for conducting a new trial.
Linda Riggan Wood, et al. v. Terry Riggan Lowery, et al. - W2006-00901-COA-R3-CV View
(Concur) - View
Shelby County - Appellant challenges the trial court's judgment dismissing Appellant's claims against the Executrix of her father's estate and enforcing the agreement made by the Appellant with her siblings to share equally in the net assets of her father's estate. We affirm.
Jennifer Dunn v. Amelia Davis - W2006-00251-COA-R3-CV View
Shelby County - This appeal arises from a wrongful death action tried by a jury. The jury allocated 51% fault to Defendant and assessed total damages in the amount of $1,250,000. The trial court denied Defendant’s motions for new trial, remittitur, and judgment in accordance with motion for directed verdict; entered judgment against Defendant in the amount of $637,500; and awarded Plaintiff discretionary costs. Defendant appeals. We affirm in part, reverse in part, and remand with suggestion of remittitur.
Cases posted the week of 02/26/2007
Reginald Nairon v. Horace Joel Holland, et al. - M2006-00321-COA-R3-CV View
Willianson County - Reginald Nairon brought this action against Horace Joel Holland and Holland Medical Equipment, Inc., claiming intentional infliction of emotional distress and invasion of privacy resulting from “harassing and abusive” telephone calls made to the plaintiff by Mr. Holland and others connected with him. The trial court granted the defendants summary judgement. The plaintiff appeals. We vacate the trial court’s grant of summary judgment and remand for further proceedings.
In Re: S.R.C. & C.M.C. - E2006-00187-COA-R3-PT View
Sullivan County - The trial court terminated the parental rights of S.C. (“Father”) to two of his daughters upon finding by clear and convincing evidence that grounds for terminating his parental rights existed and that termination was in the best interest of the children. On appeal, Father argues that statutory grounds did not exist to support the trial court’s judgment terminating his parental rights. Upon our finding that there was clear and convincing evidence of Father’s substantial noncompliance with the permanency plans entered into in this case, we affirm the judgment of the trial court.
Bradley Bruce Scofield v. Shaila Jan Scofield - M2006-00350-COA-R3-CV View
Rutherford County - This is a post-divorce dispute over custody of the parties’ three minor children. In the Final Decree of Divorce, Mother was designated as the primary residential parent. Nineteen months later, the father petitioned to change custody of the children based upon his impending retirement from active duty in the U. S. Army and the mother’s multiple post-divorce relocations of her residence and alleged abuse of the children. The trial court dismissed the petition finding the evidence insufficient to constitute a material change in circumstances. We affirm.
Christin M. Johnson, LPN v. Tennessee Board of Nursing - M2005-02129-COA-R3-CV View
Davidson County- A formerly licensed practical nurse appeals a default judgment revoking her license by the Board of Nursing and claims, inter alia, that the Board failed to comply with applicable notice requirements. Because the administrative record does not reflect consideration of the rule governing proceedings by default, we reverse.
Wubalem G. Guangul v. United Imports, et al. - M2005-02614-COA-R3-CV View
Davidson County - The individual defendant in this action appeals the trial court’s denial of his motion to quash the execution of a judgment levied against him. The appellant, Farhad Soheilinia, contends he is not Fahad Soheilinia, the individual against whom the judgment was rendered. The trial court made a specific finding of fact that he was served with process and was the individual defendant against whom the judgment was rendered. Finding the evidence does not preponderate against the trial court’s finding of fact, we affirm.
In The Matter of The Estate of Cleo M. Snapp - E2006-00933-COA-R3-CV View
Washington County- In this action to construe provisions in Decedent’s Will, the Trial Court applied the anti-lapse statute. On appeal, we reverse.
Derek Davis v. Shelby County Sheriff's Department - W2006-00980-COA-R3-CV View
Shelby County - This appeal involves a writ of certiorari. The plaintiff, a former deputy sheriff for the County, was discharged. After a hearing, the County administrative board upheld the County’s decision to terminate the plaintiff’s employment. The plaintiff then filed a petition for writ of certiorari in the chancery court, seeking judicial review of the board’s decision. The plaintiff then filed a motion to amend the petition to add claims. The trial court never ruled on the motion to amend. After a hearing on the petition, the trial court affirmed the decision of the board. The plaintiff deputy sheriff appeals. We dismiss the appeal, finding that there is not a final judgment over which this Court may exercise appellate jurisdiction.
Anna Lou Williams, Plantation Gardens, d/b/a Tobacco Plantation and Beer Barn, d/b/a Jim's Flea Market v. Gerald Nicely - W2005-02599-COA-R3-CV View
Shelby County - This is a declaratory judgment action against the State regarding the use of an easement. The plaintiffs own a parcel of land next to a highway. By deed, the plaintiffs' predecessor in title granted a perpetual easement for “highway purposes” to the State for the Department of Transportation in the strip of land immediately next to the highway. Prior to this litigation, the Department of Transportation asked the plaintiffs to remove advertising signs posted on the land next to the highway because the signs encroached on the State's highway “right-of-way.” In response, the plaintiffs filed a declaratory judgment action against the State, seeking a declaration that the easement for “highway purposes” did not constitute a “highway right-of-way,” and that the State had no authority to require removal of the signs. The trial court ruled in favor of the plaintiffs, declaring that the deed conveyed to the State only an easement of ingress and egress and did not grant the right to use the land as a “highway right-of-way.” The defendant now appeals. We vacate the trial court's judgment and dismiss the case, finding that the plaintiffs’ declaratory judgment action is barred by the doctrine of sovereign immunity.
Charles Farmer vs. Department of Safety - E2006-01612-COA-R9-CV View
Knox County - Charles Bryan Farmer (“Plaintiff”) was employed by the Tennessee Highway Patrol for twenty-two years when his employment was terminated in May of 2004. Plaintiff filed suit in federal district court asserting various federal causes of action. Plaintiff also asserted a claim pursuant to the Tennessee Public Protection Act (the “PPA”), Tenn. Code Ann. § 50-1-304. Plaintiff sued several defendants including the State of Tennessee, Department of Safety (the “State”). The State filed a motion to dismiss the state law PPA claim on the basis that the filing of that claim in federal court violated the Eleventh Amendment to the United States Constitution. The State later agreed to Plaintiff’s voluntary dismissal without prejudice of the PPA claim. Plaintiff later refiled his PPA claim but this time in state court. The State filed a motion to dismiss claiming the one-year statute of limitation on the PPA claim had run. Plaintiff argued his PPA lawsuit was “saved” by application of the saving statutes, Tenn. Code Ann. §§ 28-1-105 and/or 28-1-115. Plaintiff also claimed that by agreeing to a dismissal without prejudice of the PPA claim, the State effectively waived any right to claim the saving statutes did not “save” Plaintiff’s PPA claim. The Trial Court concluded that the State had waived its right to claim the saving statutes did not apply to save Plaintiff’s claim. We reverse the judgment of the Trial Court and dismiss this case.
Parris Roofing & Sheetmetal vs. SCR Electric - E2006-00263-COA-R3-CV View
Hamilton County - Parris Roofing & Sheetmetal Co. (“Plaintiff”) sued SCR Electric, Inc. (“Defendant”) seeking, in part, payment for work Plaintiff had done pursuant to an alleged agreement between Plaintiff and Defendant. The case was tried without a jury and the Trial Court entered an order finding and holding, inter alia, that Plaintiff and Defendant did not have an enforceable agreement, but that Plaintiff was entitled to recover $3,613.50, from Defendant in quantum meruit. Plaintiff appeals to this Court claiming that the Trial Court erred in finding that the reasonable value of the work performed was only $3,613.50. We affirm.
Kim Brown v. William Shappley, M.D. - W2006-01632-COA-R3-CV View
Shelby County- We affirm the trial court’s award of summary judgment to Defendant physician in this medical malpractice action.
In Re: Tiffany B. - M2006-01569-COA-R3-PT View
Montgomery County - This appeal involves the termination of the parental rights of the biological parents of a six-year-old girl. Approximately fourteen months after the emergency removal of the child and her half-brother from their parents’ custody, the Tennessee Department of Children’s Services filed a petition in the Montgomery County Juvenile Court to terminate the parental rights of both parents. Following a hearing, the juvenile court found that both parents had willfully abandoned their daughter and had willfully failed to comply with the requirements of their daughter’s permanency plans and that the conditions that warranted the original removal of the child still persisted. Therefore, the court concluded that terminating the parents’ parental rights was in the child’s best interests. Both parents have appealed. We have determined that the Department failed to present sufficient evidence to demonstrate clearly and convincingly that it exercised reasonable care and diligence to provide services to the parents that would have enabled the Department to reunify the family.
Tenn-Fla Partners v. Henry C. Shelton, III, et al. - M2006-00945-COA-R3-CV View
Shelby County - Client appeals the dismissal of its legal malpractice action against the attorneys who represented it in a bankruptcy proceeding. The trial court determined that the action was barred by the Statute of Limitations and that there were no grounds upon which the trier of fact could find that the loss alleged by the client was caused by any negligent act or omission of the defendants. We affirm.
Suzanne Wisdom, et al. v. Terance Carder, et al. - M2005-02207-COA-R3-CV View
Lawrence County - A trucking company appeals the amount of personal injury damages awarded after a bench trial wherein the trucking company stipulated as to liability. Because we conclude that the evidence does not preponderate against the trial court’s findings as to damages, we affirm.
State ex. rel., Mark Murray v. Alma Neiswinter; In RE: M. M. - M2005-01983-COA-R3-CV View
Williamson County - This is a post-divorce petition for criminal contempt for failure to pay child support. The father was designated the primary residential parent for the parties’ two children, and the mother was required to make child support payments. The State, on behalf of the father, filed a petition for criminal contempt against the mother for her failure to make the required child support payments. After a hearing, the trial court determined that, for a five-month period, the mother willfully and intentionally failed to make the required payments. She was sentenced to ten days in prison for each offense. The mother now appeals, arguing, inter alia, that her conviction must be reversed because the trial court failed to make an explicit finding that she had the ability to make the payments during the five-month period. We affirm, finding that the trial court made the necessary findings of fact, and that the evidence was sufficient to support its conclusion.
Secretary of Veteran's Affairs v. John Frazier/Occupant - M2006-00544-COA-R3-CV View
Maury County - This is an appeal of a detainer action by the occupant of the premises. Susan Frazier appeals the grant of summary judgment in favor of the Secretary of Veteran’s Affairs, the owner of the premises. Pursuant to the order, Ms. Frazier was ordered to vacate the premises at 410 Winding Way in Columbia, Maury County, Tennessee. Finding no error, we affirm.
Cases posted the week of 02/19/2007
Clifford Johnson v. Nissan North America - M2006-00046-COA-R3-CV View
Rutherford County - An employee of Nissan North America appeals the summary dismissal of his action for retaliatory discharge. The employee alleged he was terminated because he filed a workers’ compensation claim. Nissan denied liability stating the termination was due to the employee’s violation of medical restrictions related to lifting and bending. Nissan filed a Motion for Summary Judgment, which the trial court granted. We have concluded, as the trial court did, that Nissan stated a legitimate, non-pre-textual reason for termination, and the employee failed to offer specific facts to realistically challenge Nissan’s stated reason for termination. Therefore, we affirm.
Carolyn Gamble, et al vs. Lenette Perra, M.D., Baptist Hospice, et al - E2006-00229-COA-R3-CV View
Knox County - Plaintiff sued defendants alleging their negligence caused the wrongful death of her husband. The Trial Court granted defendants summary judgment on the grounds that plaintiff’s responses did not raise any disputed issues of material fact. We affirm.
Garnett Goforth, et al, et ux vs. State - E2006-00926-COA-R3-CV View
Plaintiffs, parents and son brought suit against the University for injuries to the son sustained while practicing football, charging the coaches were negligent in allowing practice to continue under dangerous conditions. The Commissioner ruled in favor of the University, except as to the dispute over insurance, and awarded plaintiffs $3,600.00 under the contract of insurance with the University.
Thomas Rowe vs. Roberta Ann Rowe - E2005-01023-COA-R3-CV View
Union County - This appeal involves the Trial Court’s pre-trial award of temporary alimony to Wife and the property distribution following trial. Thomas Walter Rowe (“Husband”) and Roberta Ann Hosey Rowe (“Wife”) were married in 1996, and were divorced a few years later. While the divorce was pending and following a hearing, the Trial Court ordered Husband to pay temporary alimony pending a final decision in the divorce proceedings. Following the trial, the Trial Court first classified the property and then divided the marital property. Husband appeals challenging the award of temporary alimony as well as the property division. We affirm the judgment of the Trial Court.
Metro Government of Nashville v. Barry Construction, et al. - M2005-01749-COA-R3-CV View
Davidson County - This appeal arises from a dispute involving an unfinished public road in a large residential and commercial development in southeast Davidson County. The road was an integral part of the plans used by the developers to induce the city to rezone the property to accommodate the project and to approve the planned unit development overlay. After the developers declined to complete the road, the Metropolitan Government of Nashville and Davidson County filed suit in the Chancery Court for Davidson County seeking to force the developers either to complete the road or to pay damages equal to the cost that city would incur if it completed the road itself. The trial court dismissed the city’s complaint after concluding that the city had failed to provide any legal basis for requiring the developers to complete the road. The city appealed. We have determined that the ordinance approving the rezoning of the property to accommodate the development provides sufficient legal basis to require the developers to complete the road.
Sharon Kay Jackson v. Randall D. Jackson - W2006-00182-COA-R3-CV View
Shelby County - This is a divorce case. The parties had a long-term marriage and their children are now adults. During the marriage, the husband worked in the telecommunications industry and the wife was primarily a homemaker. The parties’ marital estate consisted largely of real property. They had incurred a substantial debt to the Internal Revenue Service. After a three-day hearing, the trial court declared the parties divorced and ordered that the real property be sold to satisfy the debt owed to the IRS. The trial court equally divided the IRS debt and any remaining proceeds from the sale of the properties. The trial court also awarded the wife a lump sum judgment representing temporary support during the pendency of the action, ordered the husband to pay the wife transitional alimony for five years, and denied the wife’s request for attorney’s fees. The wife now appeals the division of the marital estate, the decision to make the alimony award transitional rather than in futuro, and the denial of her request for attorney’s fees. The husband appeals the amount of the alimony award and the judgment for temporary support awarded to the wife. We modify the alimony to award alimony in futuro instead of transitional alimony, and affirm the remainder of the trial court’s decision.
Joseph Shew, Jr., et al vs. Michael Bawgus, et al - E2006-00374-COA-R3-CV View
Washington County - Joseph W. Shew, Jr., Nyoka Shew, Kenneth L. Lewis, and Shirley A. Lewis (“Plaintiffs”) sued Michael A. Bawgus, C. Alan Longmire, and Carolyn Lindsey King (“Defendants”) seeking, in part, a declaratory judgment holding that an easement over Defendants’ properties is thirty feet wide, or in the alternative, a judgment that the easement in its present state is unsafe and, therefore, Plaintiffs are entitled to a prescriptive easement thirty feet in width. After a bench trial, the Trial Court entered a Judgment finding and holding, inter alia, that the easement in question is thirty feet in width, or in the alternative, that an easement by prescription has been acquired by continued hostile, open, actual, and exclusive use of the easement by Plaintiffs and their predecessors in title since the establishment of the driveway within the easement in approximately 1950. Defendants appeal to this Court. We reverse.
Lyubov M. Lee vs. David Craig Lee - E2006-00599-COA-R3-CV View
Knox County - Lyubov M. Lee (“Wife”) and David C. Lee (“Husband”) were married in May of 1995, and divorced in May of 2003. The parties have one child, an eight year old son. The divorce was contentious, at best, and this behavior continued following the divorce. When the divorce was granted to Wife, the Trial Court ordered Husband to pay Wife’s attorney fees of $65,000. The parties’ continuing inability to agree on anything resulted in numerous post-divorce motions being filed, including petitions for contempt filed by both parties. Husband paid a total of $20,000 of Wife’s post-divorce attorney fees. This appeal involves Wife’s request for an additional $28,845 in post-divorce attorney fees. Following a hearing, the Trial Court refused to award Wife any additional attorney fees. The Trial Court also stated that it would not hear any future requests for attorney fees. Wife appeals. Finding no abuse of discretion, we affirm the Trial Court’s judgment refusing to award Wife any additional attorney fees already incurred by the time of that hearing. However, we vacate that portion of the Trial Court’s judgment holding that neither party could file a request for attorney fees in the future.
Carlton B. Parks vs. State, et al - E2005-02790-COA-R3-CV View
Hamilton County - The issue we address in this appeal is whether the trial court erred in granting the Defendants’ motions to dismiss the Plaintiff’s complaint, on grounds that the statute of limitations had run and that the Defendants were immune from liability under the doctrines of sovereign immunity, judicial immunity, and prosecutorial immunity. We hold that the trial court correctly found that the complaint was time-barred by the applicable statute of limitations, and that under the facts presented, the Defendants were entitled to absolute immunity from suit. We therefore affirm the judgment of the trial court.
Cases posted the week of 02/12/2007
Dudley Taylor, d/b/a The Taylor Law Firm vs. James Dalle, et al - E2006-00634-COA-R3-CV View
Knox County - In this action for a judgment for fees for legal services rendered, the Trial Court entered Judgment for plaintiff and defendants appealed. We affirm.
Dept of Children's Services vs. F.R.G. - E2006-01614-COA-R3-CV View
Sullivan County- The trial court terminated the parental rights of F.R.G. (“Mother”) and R.K.B. (“Father”) with respect to their minor child, C.G.B. (“the child”) (DOB: December 31, 2003), upon finding, by clear and convincing evidence, that grounds for terminating their parental rights existed and that termination was in the best interest of the child. Mother appeals, arguing procedural defects in the trial court’s termination of her parental rights. We affirm.
Carrie Swinford vs. Jeremy Humbert - E2006-01349-COA-R3-JV View
Carter County - The parties to this litigation formerly resided in Tennessee. The plaintiff, Carrie Swinford (“Mother”), gave birth to a daughter on February 15, 2005. Shortly thereafter, Mother filed a “paternity and legitimation” action against Jeremy Humbert (“Father”). Father admitted paternity after a DNA test revealed a 99.997% probability that he was the child’s biological father. Both parents sought to be designated as the child’s primary residential parent. Approximately six and a half months after the child was born, Mother moved to Ohio. Father is now a resident of North Carolina. Following a trial, the court below designated Mother as the child’s primary residential parent and awarded Father co-parenting time of five hours every other Saturday, and five hours every other Sunday. The trial court ordered that Father’s time with the child would be limited to visits in the state of Ohio. The trial court encouraged the parties to reach an agreement on increased visitation once the child became familiar with Father. The trial court also indicated to Father that a petition seeking increased co-parenting time could be filed in the event he and Mother were unable to reach an agreement. Father appeals. He claims that the best interest of the child dictates that he have more co-parenting time. Finding no abuse of discretion, we affirm.
Kenneth Neeley v. Piedmont Natural Gas , d/b/a Nashville Gas - M2005-02446-COA-R3-CV View
Davidson County - Plaintiff appeals the trial court’s grant of summary judgment to the defendant in this negligence action. Because the plaintiff failed to present any evidence to establish duty of care or breach of a duty, we affirm the trial court.
Carlton J. Ditto vs. Delaware Savings Bank, et al - E2006-01439-COA-R3-CV View
Hamilton County - This case involves the validity of a delinquent tax sale which occurred while the property owner had a bankruptcy petition pending and the bankruptcy court’s automatic stay was in effect. The issues presented are: did a creditor of the bankruptcy estate have standing to challenge the tax sale, and if so, should the tax sale conducted in violation of the automatic stay be declared void? The trial court ruled that the creditor did not have standing to challenge the tax sale. After careful review of the record and applicable authorities, we hold that the creditor did have standing to challenge the validity of the tax sale, and because the sale violated the automatic stay, the sale is void and of no effect to transfer title of the real property to the purchaser.
In the Matter of: F. C. M. - M2006-00774-COA-R3-PT View
Sumner County - Mother appeals termination of parental rights for persistence of conditions under Tenn. Code Ann. § 36-1-113(g)(3) claiming the Department failed to make reasonable efforts at reunification and that termination was not in the child’s best interest. We affirm.
BFS Retail & Commercial Operations v. Charles Smith - M2006-00163-COA-R3-CV View
( Concur ) - View
Davidson County - National retail tire and automotive service corporation filed action against district manager for violation of corporation’s covenant not to compete after manager resigned and accepted new position with corporation’s competitor. Trial court granted manager’s motion for summary judgment, finding that manager had not violated the non-compete agreement since manager’s new position was located outside the geographic location in which he was previously employed by corporation. Corporation appealed. Finding that the provisions of the contract are not, as a matter of law, limited to a geographic component, we reverse.
O'Charley's/Donelson Foods, Inc. v. Tenn-Ky Automatic Sprinkler Company, Inc., et al. - M2004-02835-COA-R3-CV View
Davidson County - After a three day trial, the trial court found that defendant installers were not liable for a sprinkler system failure caused by faulty maintenance. The evidence preponderates in favor of the trial court’s finding regarding fault, and we affirm.
Cases posted the week of 02/05/2007
Otis Brown, Jr., et al. v. William Schierholz, et al. - M2005-02031-COA-R3-CV View
Williamson County - This appeal arises from the alleged agent’s (“agent”) suit to enforce an agreement entered into on behalf of the alleged principal (“principal”). The principal responded that the agent did not have the authority to enter into the agreement, and thereby refused to compensate the agent. The trial court ruled that the agent did not have the requisite authority to bind the principal, and awarded damages to the principal on his counterclaim. However, the trial court did award a commission fee to the agent. The ruling of the trial court regarding the validity of the agreement is reversed and this cause is remanded for further proceedings.
Paul & Virginia Russell v. I. Allan Howard, et al. - M2005-02956-COA-R3-CV View
Coffee County - This is an appeal from a nuisance case. The plaintiff landowners filed a complaint alleging a recurring nuisance caused by the construction of a golf course adjacent to their property. The plaintiffs alleged that a part of their property, which was located in a natural drainage pattern even prior to the golf course’s construction, became flooded after periods of heavy rainfall as a result of the construction of the fairway and installation of a drainage system by the defendant golf course developers and owners. A trial was held, and the chancery court entered judgment in favor of the defendants. The plaintiffs filed a timely appeal to this Court. We affirm.
Steve Wherry & Mary Hopkins, Co-Executors of Estate of Margaret Archer v. Union Planters Bank, N.A. - W2006-00256-COA-R3-CV View
Shelby County- This case involves the alleged negligent administration of a trust. In 1964, the plaintiffs’ decedent established a $1.7 million trust and named herself as the sole beneficiary. The defendant bank was named as the trustee and was given sole discretion to manage the trust investments. From 1964 until the decedent’s death in 1999, the bank managed the trust fund and sent the decedent monthly statements describing the trust activities. When the trust terminated, it was worth approximately $880,000. The plaintiffs, co-executors of the decedent’s estate, brought this action on behalf of the estate for negligent administration of the trust, arguing that the bank negligently failed to maximize the rate of return on the trust assets. The bank filed a motion for summary judgment based on, inter alia, the doctrine of ratification, asserting that the decedent had ratified the bank’s management of the trust assets by failing to object to its decisions over the thirty-five-year life of the trust. The plaintiffs argued that the decedent was not sufficiently sophisticated in financial matters to ratify the bank’s actions. The trial court granted the bank’s motion for summary judgment. The plaintiffs now appeal. We affirm, concluding that, in light of the undisputed facts that the decedent was legally competent and was fully informed of the bank’s actions in managing the trust investments, the decedent’s level of sophistication in financial matters is immaterial.
Department of Children's Services v. B.B.M. - E2006-01677-COA-R3-PT View
Hancock County- This is the second appeal to this Court of the Juvenile Court’s judgment terminating the parental rights of B.B.M. (“Mother”) to her four children. After a second trial, the Juvenile Court held that: (1) there was clear and convincing evidence that grounds existed to terminate Mother’s parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(2) and (g)(3); (2) there was clear and convincing evidence that termination of Mother’s parental rights was in the children’s best interest; and (3) that the Department of Children’s Services (“DCS”) had made reasonable efforts to assist Mother to reunite with her children. Mother appeals challenging each of these rulings. After a careful review of the record, we affirm the Juvenile Court’s judgment in all respects.
Moss Service & Supply v. Tommy F. Gragg, Jr., et al. - M2005-02587-COA-R3-CV View
Sumner County - The defendants, homeowners, appeal an adverse jury verdict wherein the plaintiff, a heating, ventilation and air conditioning contractor, was awarded breach of contract damages plus discretionary costs. Finding no error, we affirm.
Anesthesia Medical Group v. Pamela Greer Chandler - M2005-00034-COA-R3-CV View
Davidson County - The plaintiff medical group loaned money to the defendant nurse for tuition at a school that trained its students to become nurse anesthetists. As part of the arrangement, the student promised to work for the group for three years after graduation. Seven months prior to graduation, the student notified the group that she would not be able to work for it upon completion of her training. She paid the loan back with interest, but the medical group filed suit to enforce a $15,000 liquidated damages clause in the loan contract. The student then filed a motion for summary judgment, which the trial court granted. The court held that the sum demanded constituted an impermissible penalty rather than a valid provision for liquidated damages and, thus, that it was unenforceable as a matter of law. We reverse the grant of summary judgment to the student and affirm the denial of summary judgment to the medical group because we find that the undisputed facts do not show that either party is entitled to judgment as a matter of law.
Rose Marie Flowers v. Robert Flowers, Sr., et al. - M2005-01536-COA-R3-CV View
Davidson County - This case involves a dispute between the former wife of the decedent and the widow of the decedent over the proceeds of certain retirement accounts of the decedent. The dispute arises from a property settlement agreement incorporated in the final decree of divorce between decedent and his former wife on the one hand and a antenuptial agreement and property settlement agreement between decedent and his widow on the other hand. The trial court awarded former wife a portion of the life insurance policy and two of the decedent’s retirement plans and awarded the widow part of the insurance proceeds and the proceeds of a Wal-Mart profit sharing account. Former wife has appealed, and both parties present issues for review. We reverse in part, affirm in part, modify in part and remand.
Tracy J. Jones, et al. v. Tennessee Riders Instruction Program, et al. - M2006-01087-COA-R3-CV View
Davidson County - Plaintiff, a wholly inexperienced motorcycle rider, sued Tennessee Riders Instruction Program, Inc., for injuries sustained when she wrecked during the last day of a three-day motorcycle safety course. The plaintiff’s claim for gross negligence was dismissed by the trial court upon a finding there was nothing in the record which would allow a reasonable juror to conclude the defendant exercised a conscious neglect of duty or a callous indifference to consequences or such entire want of care as would raise a presumption of a conscious indifference to the consequences. The plaintiff appealed. We affirm.
Melody Weston, et al. v. Community Baptist Church of Wilson County - M2004-02688-COA-R3-CV View
Wilson County - This case arises from a dispute between a church and the estate of one of its former members over money given by the former member and her spouse to enable the newly-formed church to pay off a loan on its property. The estate contended that the money was a gift subject to a condition subsequent, with return of the gift required in the event the church ceased existence. The church admitted that it had accepted the gift, but argued that it never accepted any conditions. The court took note of a church resolution that ratified the alleged condition and ruled in favor of the estate. We affirm.
Cases posted the week of 01/29/2007
Judy Ann Piper v. Randy Glenn Piper - M2005-02541-COA-R3-CV View
Sumner County - Appellant appeals the trial
court’s
ruling designating appellee as primary residential parent
of the parties’ two
minor children. However, appellant failed to provide the Court
of Appeals with a complete record of the lower court proceedings;
specifically, a transcript of a new trial on the matter was
absent from the appellate record. Therefore, based upon the
incomplete record, this Court cannot review the facts and must
affirm the trial court.
Thomas Alan Cook v. Sherri Annette
Cook - M2005-02725-COA-R3-CV View
Robertson County - The mother of the parties’ only
child filed this post-divorce petition seeking to modify the Permanent
Parenting Plan and Child Support set forth in the 2001 Final Decree
of Divorce. She contends the child support award in the 2001 Final
Decree of Divorce is void as against public policy because she was
required to pay child support although she was the custodial parent.
She requested a modification of the child support retroactive to the
date of the divorce and a judgment for the arrearage. The trial court
found the child support award in the Final Decree was not void, granted
the mother’s petition to modify
child support prospectively, and ordered the father to pay $474 per
month, the presumptive child support pursuant to the guidelines. We
affirm.
Laura Johnson v. Clover Bottom Development Center, et al. - M2005-01440-COA-R3-CV View
Davidson County - An employee of Clover Bottom Development
Center appeals the summary dismissal of her action under the Tennessee
Handicap Act. The employee alleged she was the victim of discrimination
due to her medical limitations. The trial court dismissed the action
finding the employee failed to show she sustained an adverse employment
action, an essential element of her claim. We affirm.
Saturn Corporation v. Ruth Johnson - M2005-02579-COA-R3-CV View
Davidson County - The Department of Revenue appeals
the Chancellor’s ruling that the “surcharge” imposed on self-insured employers by Tenn. Code Ann. § 56-4-207(a) on deemed workers’ compensation premiums is part of a premium tax for purposes of the tax credit provided pursuant to Tenn. Code Ann. § 56-4-217(a). The Department contends the surcharge is not a tax but a “fee” earmarked
for the administration of the Tennessee Occupational Safety and Health
Agency and may not be applied as a credit towards franchise and excise
tax liabilities. Finding the surcharge to be a fee rather than a premium
tax, we reverse.
In Re: Estate of Corinne E. Burg - M2006-00065-COA-R3-CV View
Franklin County - Joe David McBee (“Defendant”) filed a petition seeking to have the August 4, 1997 Last Will and Testament of Corrine E. Burg (“the Will”) admitted to probate. The General Sessions Court of Franklin County (“General Sessions Court”) entered an order admitting the Will to probate. George Daniel Burg and Edward Allen Burg (“Plaintiffs”) filed a petition seeking to have the Will set aside alleging, in part, that the Will was the product of fraud and undue influence exerted upon Corrine E. Burg by Defendant. The General Sessions Court entered an order certifying the issues relating to the validity of the Will to the Circuit Court for Franklin County (“Circuit Court”) for trial. Plaintiffs also filed a petition in the Chancery Court for Franklin County (“Chancery Court”) seeking an accounting and the return of assets that Defendant allegedly transferred to himself from Ms. Burg’s accounts prior to Ms. Burg’s death. The Chancery Court case was consolidated with the Circuit Court case and the consolidated case was tried in Circuit Court. After trial, the Circuit Court entered an order finding and holding, inter alia, that no confidential relationship existed and, in the alternative, that Defendant had rebutted the presumption of undue influence. The Circuit Court dismissed Plaintiffs’ petition. Plaintiffs appeal to this Court. We reverse as to the Circuit Court’s
decision that no confidential relationship existed, and affirm the
judgment in all other respects including that Defendant rebutted the
presumption of undue influence.
Douglas Cunha, et ux vs. Mike Cecil & Barry
Weber - E2006-01066-COA-R3-CV View
Sevier County - The Trial Court held the statute of
repose, Tenn. Code Ann. § 28-3-202, barred plaintiffs’ claims
pursuant to the Tennessee Consumer Protection Act. On appeal, we affirm.
Shelley Sampson, et al vs. Wellmont Health System , dba Holston Valley Medical Center, et al - E2005-02839-COA-R3-CV View
Sullivan County- This is a medical malpractice case.
Shelley Marlene Sampson (“the plaintiff”) and her husband, Edward V. Sampson, sued the defendants, Wellmont Health System (“Wellmont”), doing business as Holston Valley Medical Center, and Elizabeth Perry, R.N. (“Nurse Perry”), alleging that the plaintiffs suffered damages as a result of Nurse Perry’s failure to promptly check and empty the plaintiff’s catheter bag during her postoperative stay at Holston Valley Medical Center. The trial court granted the defendants summary judgment, finding that the plaintiff’s
cause of action was filed outside the period of the applicable statute
of limitations. We affirm.
Malcolm Mimms, Jr. v. Miriam Mimms - M2006-00711-COA-R3-CV View
Davidson County - In this post-divorce case, the issues
presented are whether the trial court erred in reducing the husband’s monthly rehabilitative alimony obligation from $7,000 to $5,000, where the husband’s income from his employment declined from approximately $700,000 per year to approximately $100,000 per year; and whether the trial court erred in awarding the wife $4,000 in attorney’s fees. After careful review, we modify the alimony award to $2,000 per month and reverse the award of attorney’s
fees.
In Re: D. J. R. - M2005-02933-COA-R3-JV View
Stewart County - The uncle and aunt of a child filed
a dependent and neglect action in Juvenile Court seeking custody of
the child. The Juvenile Court found the child dependent and neglected
and awarded custody of the child to the uncle and aunt. The child’s mother appealed. The Circuit Court affirmed, finding the existence of a substantial risk of harm if the child were to remain in his mother’s custody. On appeal to this Court, the mother contends the evidence was insufficient. We have concluded the evidence in the record does not establish by clear and convincing evidence the requisite proof, that the child would more likely than not be exposed to a substantial risk of harm if left in the mother’s
care. We therefore, vacate and remand.
Ann Shofner v. Robert Shofner - M2005-02736-COA-R3-CV View
Davidson County - The mother of the parties’ three children filed a Dependent and Neglected Petition against the father in Juvenile Court seeking to remove the two children that were in the father’s custody pursuant to an order of the Circuit Court. The Juvenile Court dismissed the Petition following which the father sought to recover his attorney’s fees incurred in defending the action. The Juvenile Court denied the father’s request for attorney’s fees, finding no statutory basis for such an award in a dependency and neglect action, which ruling the Circuit Court affirmed. In his appeal to this Court, the father contends courts have authority pursuant to Tenn. Code Ann. § 36-5-103(c) in any suit or action to award attorney fees incurred in enforcing a decree concerning the adjudication of the custody or the change of custody of a child. Finding the father’s reliance on Tenn. Code Ann. § 36-5-103(c) correct, we reverse and remand for the award of the father’s attorney’s
fees at trial and on appeal.
Johnnie Mae Hall and Theresa Jones, Co-Administrators - Estate of Billy Wayne Jones v. Andrew Stewart, et al. -
W2005-02948-COA-R3-CV View
Shelby County - This is a wrongful death case.
On appeal, Ms. Theresa Diane Jones (Ms. Jones) and Ms. Johnnie
Mae Hall (Ms. Hall) contend that two erroneous admissions of evidence
unfairly influenced the jury’s award of damages for the wrongful death of Mr. Billy Wayne Jones (Mr. Jones). The jury found that Mr. Jones suffered damages in the amount of $100,000 but also found that he was 49% at fault. The jury’s verdict resulted in a net recovery of $51,000. Ms. Jones and Ms. Hall request a new trial of the action they instituted against Fullen Dock & Warehouse, Inc. (Fullen Dock), whose employee ran over Mr. Jones with a bulldozer, resulting in his death. Specifically, Ms. Jones and Ms. Hall argue that the trial judge abused her discretion in admitting evidence of Mr. Jones’s prior medical history during the cross-examination of their own medical expert and of Mr. Jones’s
prior guilty plea and conviction for cocaine possession six years
prior to his death. Finding no abuse of discretion, we affirm.
Lisa Ann Cartwright v. Robert Cartwright, Sr. - W2005-02759-COA-R3-CV View
Benton County - This is a divorce case involving the
classification and division of marital property. The parties signed
a prenuptial agreement. After they married, the parties operated a
cattle and farming business, which was conducted in the wife’s name only. After three years of marriage, the wife filed a petition for divorce. A trial was held primarily on issues related to property distribution. The husband argued that the cattle and farming equipment was purchased with his separate funds and therefore was his separate property under the prenuptial agreement. The husband also alleged that the wife had discarded or destroyed numerous items of his separate property. The trial court found that the cattle and farming equipment was marital property and divided it equally, and declined to find the wife responsible for the items that had been discarded or destroyed. The husband now appeals. We affirm, concluding that the evidence does not preponderate against the trial court’s
decision.
In Re M.L.P . - E2006-01492-COA-R3-CV View
Knox County - B.R.P. (“Father”) was sentenced to serve eighteen years in prison when his daughter was six years old. The trial court terminated his parental rights based on Tenn. Code Ann. § 36-1-116(g)(6), which provides for the termination of parental rights of a person who is incarcerated under a sentence of ten years or more if that person’s child is under the age of eight at the time of sentencing. In this appeal, Father argues that Tenn. Code Ann. § 36-1-116(g)(6) is inapplicable because Father might not have to serve his entire sentence if he obtains postconviction relief. He also maintains that termination of his parental rights is not in the best interest of his daughter. After careful review of the evidence and applicable authorities, we hold that the possibility of postconviction relief is irrelevant to a trial court’s determination of whether the requirements of Tenn. Code Ann. § 36-1-116(g)(6) have been met. We further hold that the evidence does not preponderate against the trial court’s finding by clear and convincing evidence that termination of Father’s
parental rights was in the best interest of his daughter. Therefore,
we affirm.
C & W Asset Acquisition, LLC, vs. Donald
H. Oggs - E2006-01251-COA-R3-CV View
( Dissent )
- View
Monroe County - In this suit for breach of contract,
the assignee of a loan agreement alleged that the defendant was in default
of the agreement and requested judgment for monies advanced, plus interest
and attorney’s fees. The defendant denied owing the debt. The
trial court found the plaintiff had failed to carry its burden of proof
and dismissed the case. Upon our determination that the evidence does
not preponderate against the finding of the trial court, judgment in favor
of the defendant is affirmed.
Charles W. Darnell, d/b/a European Service Werks v. Johnny W. Brown, et al. - W2006-01084-COA-R3-CV View
Shelby County - Plaintiff appeals the trial court’s dismissal of Plaintiff’s action immediately following a hearing on Plaintiff’s
motion for temporary injunction. We affirm in part, vacate in part,
and remand for further proceedings.
Kenyale Pirtle v. Dept.of Correction - W2006-01220-COA-R3-CV View
Lauderdale County - Upon review under common-law writ
of certiorari, the trial court affirmed disciplinary actions against Petitioner/Appellant
by the Tennessee Department of Correction. We affirm in part and remand.
Glenda White vs. Fort Sanders-Park West Medical - E2006-00330-COA-R3-CV View
Knox County - Plaintiff sued her former employer on grounds
of breach of contract, retaliatory discharge, and violation of the Tennessee
Human Rights Act, as well as the Tennessee Public Protection Act. The
Trial Court granted defendant summary judgment. Plaintiff appealed and
we affirm the Trial Court.
Cases posted the week of 01/22/2007
Norman Linn, et al vs. Walter Howard, et al - E2006-00024-COA-R3-CV View
Roane County - This lawsuit was originally filed by a number of plaintiffs seeking to quiet title and establish their right to unlimited use of a runway easement at the Meadowlake Airpark. The trial court entered a judgment granting the plaintiffs most of the relief they requested. Well after the judgment became final, several of the plaintiffs filed a petition seeking to have defendant Walter Howard held in contempt of court because of his willful obstruction of the runway. The trial court found Mr. Howard in civil contempt. The defendants appeal challenging various rulings of the trial court contained in the final judgment, as well as the later finding of civil contempt. The defendants also challenge the jurisdiction of this Court over the appeal as it pertains to the finding of civil contempt. The plaintiffs claim this appeal is frivolous. We conclude that the appeal is frivolous because none of the issues raised by the defendants had a reasonable chance of success. We affirm the judgment of the trial court and remand for a determination as to the expenses due the plaintiffs pursuant to the provisions of T.C.A. § 27-1-122 (2000).
Michael Hannan, et al vs. Alltel Publishing Co., et al - E2006-01353-COA-R3-CV View
Monroe County - The plaintiffs, Michael Hannan and his wife, Elizabeth Hannan, advertised their businesses through the local telephone directory. In 2003, the plaintiffs purchased from Alltel Publishing Co. (“Alltel”) advertising space in the new directory. However, Alltel failed to include the plaintiffs’ advertisement in the new directory. This prompted the plaintiffs to file suit against Alltel. Alltel filed a motion for summary judgment claiming the plaintiffs were unable to prove that they had incurred any damages as a result of Alltel’s failure to include the ad in the directory. Alltel relied, in part, on tax return information showing an increase in the plaintiffs’ gross income during the year the ad was missing from the directory. The trial court determined that the plaintiffs would be unable to prove that they incurred any damages. Consequently, the court granted Alltel’s motion. We conclude that Alltel’s filings fail to negate an essential element of the plaintiffs’ claim. Accordingly, we vacate the trial court’s grant of summary judgment.
Charles Pelczynski, et al vs. Slater Real Estate Co. - E2006-00971-COA-R3-CV View
Hawkins