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Cases posted the week of 3/24/2008
William Hunter Liggett, et al. v. Brentwood Builders, LLC - M2007-00444-COA-R3-CV View
WIlliamson County - Home buyers brought suit against home builder alleging fraud, breach of contract, consumer protection violations, negligent misrepresentation, and negligence. The trial court granted the builder’s motion for summary judgment based upon the statute of limitations and statute of repose. We affirm.
Steven L. Farmer v. Susan B. Stark - M2007-01482-COA-R3-CV View
Williamson County - The trial court modified father’s child support based upon a decrease in his income that resulted in a significant variance under the child support guidelines. On appeal, mother disputes the trial court’s failure to include in father’s income withdrawals from retirement accounts and the personal benefit from a truck used in his business. Mother further argues that the trial court erred in failing to order an upward deviation from the child support guidelines for special expenses. In addition, mother assigns error to the trial court’s rulings regarding tax exemptions and the reasonableness of father’s business expenses. We have determined that the trial court should have considered as income any portion of the retirement account withdrawals representing an increase in the value of those accounts since the divorce. Otherwise, we affirm the decision of the trial court.
Thomas E. Brady v. Kimberley Gugler - M2006-01993-COA-R3-CV View
Warren County - Appellant (“Father”) appeals the trial court’s designation of Appellee (“Mother”) as the primary residential parent of their minor child. In declaring Mother the primary residential parent, the trial court also awarded Mother attorneys fees. The issues raised by the father on appeal are threefold: (1) whether the trial court erred by failing to articulate analysis or make findings of fact with regard to the statutory factors guiding custody determinations pursuant to Tenn. Code Ann. § 36-6-106; (2) whether the trial court erred in applying the statutory factors; (3) whether the trial court erred in awarding attorneys fees to Mother pursuant to the parentage statute. Mother asks on appeal for this court to award damages pursuant to Tenn. Code Ann. §27-1-122 due to a frivolous appeal. We have determined that the trial court is not bound to articulate its reasoning underlying a custody decision, the evidence is overwhelmingly in favor of Mother being the primary residential parent, and because this action involved the issue of Father’s parentage, the trial court properly exercised its discretion to award attorney’s fees to Mother. Further, we have determined that this appeal is not supported by the law or evidence, and thus, is a frivolous appeal. Accordingly, we have determined that Mother is entitled to damages arising from the expenses and costs associated with this appeal. We affirm and remand.
BMC Enterprises, Inc. d/b/a Bond Memorial Chapel v. City of Mt. Juliet, et al. -
M2007-00795-COA-R3-CV View
Wilson County - Plaintiff has operated a funeral home on its property since 1997. In this zoning dispute, the City of Mt. Juliet Board of Zoning Appeals (“the Board”) refused to allow plaintiff to establish a crematory as an expansion of plaintiff’s funeral home services. The funeral home had been a legal non-conforming use of plaintiff’s property since the City’s zoning ordinance was amended in 1998. The Board refused to allow plaintiff to operate a crematory on the same property because crematories are not permitted in the zoning district for plaintiff’s property. Plaintiff filed a Petition for Writ of Certiorari to the Trial Court for judicial review of the Board’s decision. The Trial Court granted the writ and found that the Board’s decision was arbitrary, illegal, and capricious. The Trial Court reversed the Board’s decision and ordered defendants to allow plaintiff to build and operate the proposed crematory on its funeral home property. The Trial Court also granted plaintiff $10,000 in attorney fees and costs. Defendants appeal. We affirm. We also hold that BMC is entitled to its reasonable attorney fees and costs incurred during this appeal, not to exceed $10,000, pursuant to the Equal Access to Justice Act, Tenn. Code Ann. § 29-37-101, et seq. Therefore, we remand to the Trial Court for a determination of the proper amount of attorney fees and costs to be awarded to BMC and for collection of costs below.
In Re: Conservatorship of Chadwick - E2006-02544-COA-R3-CV View
Roane County - Kelley Narramore and Sandra Crabtree (collectively “the petitioners”) are cousins of Lorilee Chadwick (“the ward”). The petitioners filed a petition seeking to be appointed conservators of the ward. The ward’s father, Billy N. Chadwick (“Father”), opposed the petition. The trial court granted the petition and named the petitioners co-conservators. Father appeals, challenging the propriety of their appointment. We lack an adequate factual record, and therefore the trial court’s factual findings are conclusively presumed to be correct. Furthermore, we do not find the absence from the record of a written report from the guardian ad litem to constitute a reversible error. Accordingly, we affirm the court’s judgment.
Ronald Phillips vs. Strange Truck Lines - E2007-00160-COA-R3-CV View
Cocke County - This suit arose out of a two-vehicle collision in Cocke County on September 15, 2005. Ronald Phillips (“the plaintiff”) initiated this action by filing a civil warrant in General Sessions Court. The sole defendant was Strange Truck Lines (“the defendant”). Following a bench trial, the General Sessions Court entered judgment for the defendant. The plaintiff appealed to the trial court. In the trial court, the defendant filed a motion for summary judgment with supporting material. The plaintiff responded. The trial court granted the defendant summary judgment. The plaintiff appeals. We affirm.
Wayne Boykin and Associates, et al. v. Harry Tinsley - M2006-02465-COA-R3-CV View
Wilson County - Listing real estate agent and buyer’s agent filed suit against prospective buyer to recover their commissions due under a contract for the sale of real estate. The trial court found that prospective buyer breached the contract and awarded commissions to both agents. On appeal, prospective buyer challenges the trial court’s finding that he breached the contract as well as the determination that he was liable to the listing agent for a real estate commission. We affirm.
Mary Anne Marciante v. William Harold Perry - M2006-02654-COA-R3-CV View
Williamson County - This appeal involves the classification and division of marital property after a marriage of approximately thirteen years. We have determined that the trial court erred in its classification of various assets and debts, and the resulting distribution of the marital estate was inequitable. Therefore, we modify the judgment and affirm as modified.
In Re: Adoption of M. D. W., Jr. - M2007-01689-COA-R3-PT View
Stewart County - The biological father of M.D.W. appeals the termination of his parental rights. He maintains that he should have been personally served rather than served by publication and that he had no notice of the final hearing. Since constructive service is intended to be the last resort and is only permitted when the defendant’s residence is unknown, counsel’s knowledge of the biological father’s address before service by publication was completed created an obligation to provide actual service to the biological father. We, therefore, vacate the order and remand the case to the trial court.
In Re: Adoption of S. A. W. - M2007-01690-COA-R3-PT View
Stewart County - The biological father of S.A.W. appeals the termination of his parental rights. He maintains that he had no notice of the final hearing. The notice of the hearing was sent in accordance with Tenn. R. Civ. P. 5.02 to the address supplied by the biological father. Proof of due mailing creates a presumption of receipt and nothing in the record rebuts this presumption. We affirm.
In Re: Adoption of F. M. B. P. W. - M2007-01691-COA-R3-PT View
Stewart County - The biological father of F.M.B.P.W. appeals the termination of his parental rights. He maintains that he should have been personally served rather than served by publication and that he had no notice of the final hearing. Because we have determined that the statutory requirements of service by publication were not met, we vacate the order and remand the case to the trial court.
Doyle H. Brandt and Martha J. Brandt v. David H. McCord, M.D., et al. -
M2007-00312-COA-R3-CV View
Davidson County - The issue on appeal in this medical malpractice action is whether the plaintiffs’ lawsuit was timely filed. The plaintiffs, husband and wife, filed this medical malpractice action on December 5, 2003, against three healthcare providers for a surgical procedure performed on husband on December 8, 2000. All defendants filed a Motion to Dismiss and/or for Summary Judgment based on the statute of limitations. The trial court summarily dismissed the complaint finding the plaintiffs had knowledge of enough facts more than one year before filing the lawsuit to put a reasonable person on notice that an injury had been suffered as a result of wrongful conduct by the defendants. The trial court also found that the doctrine of fraudulent concealment did not apply to toll the statute of limitations. The plaintiffs appealed. Finding no error, we affirm.
State of Tennessee, Department of Human Services, ex rel., Tracy Renee Jackson v. Shannon Michael Jackson - M2006-00598-COA-R3-CV View
Sumner County - This appeal involves a chancery court’s modification of a pendente lite child support order and the forgiveness of arrearages resulting from that order. Because the modified order was interlocutory by nature and therefore subject to modification at any time prior to the entry of a final judgment, we affirm.
James W. Burd, et al. v. Daeshawn Traughber a/k/a Daeshawn Souza, et al. -
M2007-01973-COA-R3-CV VIew
Sumner County - Defendants appeal the trial court’s failure to set aside, under Tenn. R. Civ. P. 60.02, the grant of summary judgment in this intentional tort case. Finding that the trial court did not abuse its discretion, we affirm.
Robert J. Young Company v. Nashville Hockey Club Limited Partnership -
M2006-02511-COA-R3-CV View
Davidson County - This case arises from a contract dispute between the parties. The Appellant herein, Nashville Hockey Club, entered into a “Sponsorship Agreement” with the Appellee herein, Robert J. Young Company. Subsequently, the parties agreed to change their agreement. As a result, the parties entered into a subsequent “Letter of Agreement.” When a players’ strike occurred, Appellee wished to cancel the contract. Appellant claimed that the “Sponsorship Agreement,” and particularly the force majeure clause contained therein, were not superseded by the “Letter of Agreement.” The trial court granted summary judgment against Appellee and, following a hearing on Appellant’s counter-claim, granted judgment in favor of Appellant but did not award damages based upon its finding that Appellant had mitigated all of its damages. Appellant appeals on the issue of damages. Appellee appeals on the issue of what, if any, agreement exists between the parties. Finding that the plain language of the “Letter of Agreement” supports a finding that same supersedes the “Sponsorship Agreement,” we reverse and remand.
State of Tennessee, ex rel Peggy Doreen (Hunt) Flatt v. Jerry Keith Flatt
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W2007-01376-COA-R3-CV View
McNairy County - This appeal involves a child support obligation. The mother and father had three minor children. When the parties divorced, they entered into a marital dissolution agreement and a permanent parenting plan, which were approved by the divorce decree. Relevant to this appeal, the parties owned a newer residence, which was their marital home, and also an older residence, which had been listed for sale. The permanent parenting plan provided that it would not become effective until the older residence was sold. The parties agreed that the mother and the three children would be allowed to continue living with the father in the newer residence after the divorce until the older residence was sold. The father would be paying several marital debts until the older home sold, including the mortgage on the older home. However, the parenting plan provided that the father’s obligation to pay child support would not begin until the older home was sold. The mother and children soon moved out of the marital home and into the older residence. Pursuant to the agreement, the father had no obligation to pay child support because the older residence had not been sold. Six weeks after the final divorce decree was entered, the mother filed a motion to set aside the divorce decree and parenting plan, claiming that the parties were not abiding by the decree and the father was not paying any child support. The mother began receiving public assistance benefits, and the State of Tennessee Department of Human Services filed a petition on her behalf seeking to modify the father’s child support obligation, claiming that the agreement relieving him of his duty to pay child support was void and that a significant variance existed between his current obligation and the Child Support Guidelines. The trial court entered a default order requiring the father to pay child support directly to the mother, but later set it aside, leaving the father with only his obligation, pursuant to the marital dissolution agreement, to pay the marital debts until the older residence sold. The State appeals. We reverse and remand.
Stanley M. Herring, et al vs. Coca-Cola Enterprises, et al - E2007-01295-COA-R3-CV View
Bradley County - Stanley M. Herring (“Plaintiff”) was employed as a truck driver for U.S. Express. U.S. Express contracted with Coca-Cola Enterprises to deliver soft drinks. In October of 2002, Plaintiff was at Coca-Cola Enterprises’ facility in Bradley County, Tennessee, to pick up soft drinks for delivery to Georgia. Toward the end of the loading process, Plaintiff expressed to Coca-Cola Enterprises’ employees his concern that the soft drinks had not been loaded properly. Despite repeated complaints made by Plaintiff as to the improper loading, Plaintiff nevertheless accepted the products as loaded and drove to Georgia. Upon his arrival in Georgia, Plaintiff discovered that several cases of soft drinks had fallen to the floor of the truck. While picking up the fallen soft drinks, Plaintiff was injured. Plaintiff sued Coca-Cola Enterprises for negligence. Coca-Cola Enterprises filed a motion for summary judgment claiming Plaintiff’s claim was barred under Georgia law because Plaintiff had violated 49 C.F.R. § 392.9 by failing to ensure that his cargo was properly distributed and adequately secured. The Trial Court agreed and further held that Plaintiff’s claim also failed because he had assumed the risk under Georgia law. Plaintiff appeals, and we affirm.
Gloria Windsor v. DeKalb County Board of Education - M2007-00968-COA-R3-CV View
DeKalb County - In this action against the DeKalb County Board of Education and the Director of Schools, the plaintiff seeks judicial review of her termination in 2001 as a tenured teacher, reinstatement to her former position, and back pay pursuant to the Tennessee Teacher Tenure Act, Tenn. Code Ann. §§ 49-5-501 to -515. The trial court summarily dismissed the petition, finding it untimely. We affirm the summary dismissal of the petition as being untimely.
Adam Sims, et al vs. Adesa Corporation - E2007-00899-COA-R9-CV View
Loudon County - In this interlocutory appeal, the primary question presented is whether a party can be deemed served for the purpose of tolling the statute of limitations under Tenn. R. Civ. P. 3 and the savings statute when there has been no actual service of process. The plaintiffs filed a personal injury suit arising out of a car accident against Adesa Corporation in Knox County. Adesa Corporation was not served with process, and process was not reissued within one year in compliance with Tenn. R. Civ. P. 3. However, the trial court entered an order “deeming” the defendant served, and the plaintiffs then nonsuited their case. Within a year of the nonsuit, but more than a year from the date of the car accident, the plaintiffs re-filed the same suit in Loudon County. The defendant filed a motion for summary judgment arguing that the case was time-barred under the applicable statute of limitations. The trial court denied the motion, and we granted the defendant’s request for interlocutory appeal. After review, we hold that the Loudon County Court erred in denying the motion for summary judgment. The defendant was not served with process in the original action, nor was process reissued within a year so as to toll the statute of limitations. Therefore, the second suit was time-barred, the Knox County trial court was not authorized to deem the defendant served in the absence of actual service, the savings statue was inapplicable, and summary judgment should have been granted to the defendant. The judgment of the Loudon County Circuit Court is reversed, and the case is dismissed.
Danny Ray Meeks v. Tennessee Board of Parole - M2007-00584-COA-R3-CV View
Davidson County - Danny Ray Meeks, an incarcerated state inmate, was denied parole by the Tennessee Board of Probation and Parole. After losing his administrative appeal, he attempted to file a petition for writ of certiorari in chancery court, but the court clerk returned his petition pursuant to Tenn. Code Ann. § 41-21-812 because he owed court costs from previous litigation. The court costs were later paid, and Mr. Meeks was allowed to file his petition. The petition was subsequently dismissed by the trial court because the petition was not filed within the 60 day filing period mandated by Tenn. Code Ann.§ 27-9-102. After careful review, we find no error and affirm.
In Re: B. B. - M2007-00805-COA-R3-JV View
Montgomery County - Mother appeals the trial court’s modification of a permanent parenting plan, ordered in the absence of any testimony or evidence, for the parties’ non-marital child. We vacate the order of the juvenile court and remand for further proceedings to determine the best interest of the child.
Tom Salter v. Daryl Sanders - M2006-02427-COA-R3-CV View
Cheatham County - The trial court held that lessor was entitled to full rent for summer months although the air conditioning was inoperable. The trial court reasoned that since lessor terminated the month to month tenancy months earlier due to the fact that lessor did not intend to repair the HVAC system, then lessor should not be penalized and rent is owed for those months. We affirm.
Kamarjah Gordon, Deceased, et al. v. Greenview Hospital, Inc., et al. -
M2007-00633-COA-R3-CV View
Davidson County - The issue on appeal in this medical malpractice action is whether the defendant, a Kentucky hospital, had sufficient minimum contacts with Tennessee for our courts to exercise general personal jurisdiction over the defendant. Plaintiff contends Tennessee has general personal jurisdiction over the hospital, which is a Kentucky corporation, because annual reports filed with the Kentucky Secretary of State listed a Nashville, Tennessee, address as the “principal office address” of the corporation, the corporation’s officers and directors are located in Tennessee, and it is a subsidiary of a hospital corporation based in Tennessee. The trial court ruled that the defendant did not have sufficient minimum contacts with Tennessee to justify the exercise of general personal jurisdiction over the defendant. We affirm the jurisdictional determination.
Nina Louise James Bumpus v. Scott Michael Bumpus - W2007-00395-COA-R3-CV View
Madison County - This appeal involves a change in child custody and a petition for contempt. When the parties divorced, they agreed upon a parenting plan providing that Mother would have primary custody of their two sons. Less than a year later, Father filed a petition to modify the parenting plan, seeking primary custody. Mother filed a counter-petition, also seeking modification of the parenting plan. She also filed a petition to cite Father in contempt. Since the divorce, Mother had become pregnant by another man, and she did not tell the child’s father that the child was born. Mother also lied to Father and others about the circumstances surrounding the child’s birth. Mother had remained unemployed since the divorce, and her only source of monthly income was child support from Father for his two sons. The parties’ oldest son was doing poorly in school and was frequently tardy or absent. The trial court found that a material change in circumstances had occurred, and that it was in the best interest of the children for Father to have primary custody. The court also found that Father’s actions did not rise to the level of contempt. Mother appeals, challenging the trial court’s decision to change custody, its refusal to find Father in contempt, and other procedural issues. Finding no error, we affirm.
In Re Estate of Helen B. Price - E2007-00523-COA-R3-CV View
Carter County - Decedent died testate, leaving her entire estate to her sole surviving child, and leaving nothing to the man she had lived with for more than forty years, William G. Fenner, Sr. Mr. Fenner and all but one of decedent’s grandchildren filed an action to invalidate the will on the basis of undue influence and lack of testamentary capacity. In the alternative, plaintiffs alleged that decedent and Mr. Fenner were partners and her assets were assets of the partnership, to which he is entitled to half. Plaintiffs also requested that the Trial Court impose a trust upon decedent’s estate for the benefit and use of Mr. Fenner. Following two hearings on these issues, the Trial Court dismissed all of plaintiffs’ claims and upheld the validity of decedent’s will. Plaintiffs appeal, raising issues regarding undue influence, testamentary capacity, implied partnership, imposition of a resulting trust, defendant’s failure to testify at the second hearing, and the Trial Court’s dismissal of portions of plaintiffs’ claims pursuant to Tenn. R. Civ. P. 41.02 motions by defendant. We find no error on the part of the Trial Court, and, therefore, affirm.
Cases posted the week of 3/17/2008
Club LeConte vs. Caroline Swann - E2007-0852-COA-R3-CV View
Knox County - In the Trial Court, at the conclusion of plaintiff’s proof, defendant moved for the entry of an involuntary dismissal pursuant to Rule 41.02(2), and before the Trial Judge ruled on that Motion plaintiff moved for a voluntary dismissal which the Trial Court denied, and granted defendant’s Motion for an involuntary dismissal with prejudice. On appeal, we hold that the Trial Court erred in refusing to grant plaintiff’s Motion for a voluntary dismissal.
S.L.C., b/n/f E.C. and M.C. and A.J.C., b/n/f L.A.S., v. Alden Joe Daniel, Jr. -
E2006-01413-COA-R3-CV View
Bradley County - Plaintiffs were granted a voluntary dismissal of their action, and defendant has appealed on the grounds that the Trial Court and attorneys were guilty of fraudulent conduct, and that he had a counter-claim pending at the time the action was dismissed. We affirm the Judgment of the Trial Court.
Janet Hughes Moore v. Barry Pierce Moore - M2006-02624-COA-R3-CV View
Rutherford County - The sole issue presented in this appeal is the trial court’s award of periodic alimony to the wife in the sum of $650.00 per month until she reached the age of 62. The trial court granted the parties’ divorce pursuant to Tenn. Code Ann. § 36-4-129(b). The husband appeals the trial court’s award of periodic alimony arguing that an award of transitional alimony $450.00 is the proper award. We modify the judgment of the trial court and award transitional alimony for a period of three years in the sum of $450.00 per month.
Angela Scalf v. Judy Harmon and Johnny Harmon - M2007-00350-COA-R3-CV View
Coffee County - Following the death of her father, Angela Scalf (“Plaintiff”) filed this lawsuit against Judy and Johnny Harmon (“Defendants”) claiming they improperly converted property from her father’s estate. The lawsuit was filed by Plaintiff in her individual capacity as the only beneficiary of her father’s will with respect to the property at issue. After trial, the Trial Court concluded that Defendants had converted various items of property and entered a judgment accordingly. The judgment included an award of attorney fees. Defendants filed a motion to strike the award of attorney fees, which the Trial Court granted. Plaintiff appeals and claims that the Trial Court erred when it granted Defendants’ motion to strike the previous award of attorney fees. We affirm.
Analiza P. Burnett v. David Mark Burnett - W2007-00038-COA-R3-CV View
Shelby County - This is a divorce case. When the parties met in 1995, the husband was in the Philippines working for an American corporation. The wife was a resident and citizen of the Philippines and the husband was a U. S. citizen. After a brief relationship, the wife learned that she was pregnant. The husband moved back to the United States, but made periodic trips to the Philippines to see their child. In 1998, the wife obtained a marriage visa, and she and the child moved to California to live with the husband. After signing a prenuptial agreement in California, the parties were married in Las Vegas. Two more children were born of the marriage. In 2003, both parties filed for divorce. After a trial, the parties were divorced and the husband was ordered to pay child support, alimony in futuro, and all of the parties’ marital debt. The husband was also ordered to pay for the wife’s medical insurance and uninsured medical expenses as additional spousal support. The wife was designated as the children’s primary residential parent. The parties were ordered to hold the marital home as tenants in common; the husband would pay the mortgage and the wife would live in the home with the parties’ children. The husband appeals. On appeal, we affirm the trial court’s adoption of the Wife’s parenting plan except insofar as it awards the federal income tax exemptions to the wife, but vacate the child support award and remand for a recalculation of the husband’s income and his child support obligation. We also vacate the trial court’s order regarding spousal support and remand for recalculation of the husband’s income and re-evaluation of the wife’s need and the husband’s ability to pay support. We affirm as to the remainder of the trial court’s decision.
Anntionette Griggs v. Hardeman County Community Health Center, Inc. -
W2007-00599-COA-R3-CV View
Hardeman County - The trial court awarded Defendant/Employer summary judgment in this wrongful discharge action. We affirm the judgment.
Induction Technologies, Inc. vs. Stanley E. Justus, et al - E2007-01135-COA-R3-CV View
Hamilton County - The judgment creditor obtained an order of execution on certain items of personal property in the possession of the judgment debtor. After the sheriff’s department seized the property, several parties filed a motion to intervene, alleging that some of the assets seized were owned by them and not the judgment debtor. Following a trial, the trial court ruled in the intervenors’ favor, finding that they had demonstrated ownership of the property at issue. We affirm the judgment of the trial court.
Robert T. Logan, Jr., v. Civil Service Commission of the City of Memphis, et al. -
W2007-00324-COA-R3-CV View
Shelby County - This appeal arises from the termination of a police officer for violation of the department’s deadly force policy. While in the apartment of his girlfriend’s mother, the off-duty officer shot the unarmed husband of his girlfriend in the back and paralyzed him from the waist down. The officer was attempting to stop the enraged husband from entering a room where the girlfriend, her mother, and a young child were located. He did not warn the husband that he might use deadly force prior to doing so. The police department and the civil service commission concluded that, for various reasons, the officer’s use of deadly force was not authorized. The officer appealed his termination to chancery court, primarily arguing that the department had failed to consider a parallel burglary investigation report in the pre-termination hearing. Although the civil service commission had concluded that consideration of that file would not have altered the outcome, the chancellor remanded the case back to the commission for consideration of the entire report. On remand, the commission reviewed the entire report but declined to hear further testimony. It re-affirmed its original decision. The officer sought review in chancery court and, after an unfavorable result there, appealed the case to this Court. We conclude that, even if the officer’s assertions are correct, there still exists substantial and material evidence to support the decisions below. If there was error below, it was harmless. Affirmed.
Jessica L. Smith, et al vs. State of Tennessee - E2007-00809-COA-R3-CV View
In November of 2002, Ms. Jessica Smith was savagely beaten on the head with a brick after she exited the Lake Avenue Parking Garage on the University of Tennessee campus on her way to her dorm. Ms. Smith and her parents brought this lawsuit against the University of Tennessee pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(C), claiming that the University negligently created or maintained a dangerous condition on state controlled real property. Following a trial, the Claims Commission determined that due to improper lighting at the site of the attack, the State was liable pursuant to that statutory provision. The State requested and was granted an en banc review by the full Claims Commission. Following the en banc review, a majority of the Commissioners affirmed the judgment in favor of Ms. Smith. The State appeals. We conclude that the evidence does not preponderate against the Commission’s findings and ultimate conclusions that, among others, the State negligently created or maintained a dangerous condition on state controlled real property, that the attack on Ms. Smith was foreseeable, and that the State had adequate notice of the dangerous condition. We, therefore, affirm the en banc majority decision of the Claims Commission.
Roger Wilkes and Vittoria Wilkes v. Shaw Enterprises, LLC - M2006-01014-COA-R3-CV VIew
Maury County - The principal issues presented by this appeal of a residential construction dispute between a contractor and the homeowner are (1) whether the standard of workmanship required of the contractor by the chancellor was correct and (2) whether the proper measure of damages was applied. The chancellor found that some of the house construction was defective, but that the cost of repair of the defects was excessive and disproportionate. The chancellor held that the proper measure of damages was the diminished value of the house and awarded damages on that basis. We affirm in part, reverse in part and remand for proof of the contractual workmanship standard of “good building practices” and for proof of the diminished value of the home.
Rob Rennell v. Through the Green, Inc., et al. - M2006-01429-COA-R3-CV View
Williamson County - This is an appeal from a bench trial for intentional procurement of breach of contract. Through the Green, Inc., a closely held for-profit corporation, was formed in 1994 by John Doerr, who served as both president and majority shareholder. Through the Green, Inc. operated as a golf course and driving range located in Franklin, Tennessee. Thomas Doerr, John Doerr’s brother, served as the corporation’s vice president. Rob Rennell, a professional golf instructor, entered into an oral employment contract with John Doerr in 1994 to work for Through the Green, Inc. A dispute over the terms of Rob Rennell’s employment contract arose. Rob Rennell contended that he possessed a 20% ownership interest in the corporation because he had contributed five years of “sweat equity” through his work in accordance with the oral employment contract. Rob Rennell also alleged that he deferred salary in 2003 and 2004 in return for a 2 for 1 stock exchange. The corporation ceased operations in 2004, and John Doerr maintained that Rob Rennell had no company ownership interest. Rob Rennell brought suit, alleging several theories of liability, including procurement of breach of contract against John and Thomas Doerr. First, the trial court found that Through the Green, Inc. breached its employment contract with Rob Rennell. Next, the court found John Doerr individually liable for procurement of breach of contract and awarded Rob Rennell treble damages in the amount of $1,524,000. Finally, the court found Thomas Doerr vicariously liable for John Doerr’s conduct in the amount of $508,000, jointly and severally with John Doerr. John and Thomas Doerr appeal. John Doerr alleges that 1) the chancery court erred in finding him liable for procurement of breach of contract because he, acting as president and owner of Through the Green, Inc., is not a third party necessary for such a procurement claim; 2) the chancery court erred in its calculation of damages; and 3) he is entitled to an offset for any amount Rob Rennell may collect in the future from Through the Green, Inc. on the underlying breach of contract claim. Thomas Doerr argues that the judgment holding him vicariously liable for the actions of John Doerr should be reversed because Rob Rennell neither asserted nor pled such a cause of action. In the alternative, Thomas Doerr argues that the evidence is not sufficient to support a judgment holding him vicariously liable. We reverse in part, vacate in part and remand for further proceedings.
Robin Cunningham v. Norman Jones, M.D., et al. - M2007-01112-COA-R3-CV View
Bedford County - This is an appeal from a grant of a motion for summary judgment. In 2002, the treating physician referred his patient to the hospital for testing. A radiologist at the hospital reviewed the patient’s test results, creating a radiology report. The findings in the report indicated that the patient did not suffer from renal failure. The top portion of the report labeled “Indications” stated “renal failure.” Thereafter, the report was placed in the patient’s file and also sent to the treating physician, who told the patient that she did not have renal failure. It was reported to her insurance, though, that the patient had renal failure. The trial court granted summary judgment for the claim against the radiologist, and the patient appeals. We reverse and remand for further proceedings.
Gate Bluegrass Precast, Inc. v. Loren L. Chumley, Commissioner of Revenue, State of Tennessee - M2007-00250-COA-R3-CV View
Davidson County - This lawsuit arises from taxpayer’s assertion that it qualifies for tax exemptions provided to manufacturers by Tennessee Code Annotated § 67-6-206 and § 67-6-102. The trial court determined the exemptions are not available to taxpayer because taxpayer does not qualify as a “manufacturer” as defined by the taxation statutes. Taxpayer appeals. We affirm.
Tabatha Pamperin v. Streamline Mfg., Inc., et al. - M2007-00256-COA-R3-CV View
The original opinion filed on January 23, 2008 was withdrawn pursuant to the order filed on March 10, 2008.
Rutherford County - This appeal involves an attempt to pierce a corporate veil. The plaintiff purchased a hot tub from a corporation, paying $3,000 by check and agreeing to finance the balance of $1,178. Unbeknownst to the plaintiff, the two sole shareholders of the corporation had been deadlocked and involved in litigation for almost two years. After the corporation accepted the plaintiff’s $3,000 check, but before it delivered the hot tub, the litigation ended. A jury determined that one of the shareholders held a perfected security interest in practically all of the corporation’s assets, and the judge entered an order recognizing that shareholder’s right to foreclose on the collateral if necessary. Both shareholders filed post-trial motions, then submitted a proposed “agreed amended final order” that was approved by the trial judge. The agreed order provided that, “in lieu of foreclosure,” the secured party-shareholder would be awarded all the assets of the corporation outright. The corporation was left with no assets and ceased to operate. The plaintiff never received her hot tub or a refund of the $3,000 she paid to the corporation. Plaintiff filed the present lawsuit seeking a judgment against the corporation and against the two shareholders individually. The trial court entered a total judgment against the corporation of $17,663.52, which included treble damages and attorney’s fees pursuant to the Tennessee Consumer Protection Act. However, the court refused to pierce the corporate veil to impose liability on the individual shareholders. The plaintiff appeals. We affirm in part, reverse in part, and remand for further proceedings.
Cases posted the week of 3/10/2008
Melba B. Homra, et al. v. Harold Elliott Nelson - W2007-00001-COA-R3-CV View
Separate Dissenting Opinion - View
Haywood County - This case arises from a dispute over an antenuptial agreement. Appellant Husband and wife entered into an antenuptial agreement, whereby Husband was obligated to pay for daily necessities. Wife executed a durable power-of-attorney, naming her adult Children, the Appellees herein, as her attorneys-in-fact. When Wife became unable to care for herself because of advancing Alzheimer’s, a dispute arose between Husband Appellant and Children Appellees as to who would be responsible for the costs associated with wife’s care. The trial court held that, under the antenuptial agreement, Husband Appellant was responsible for these expenses. Husband Appellant appeals. We affirm.
Thurston Hensley vs. CSX Transportation, Inc. - E2007-00323-COA-R3-CV View
Corrected Opinion Released March 14, 2008.
Hamilton County - Thurston Hensley (“Employee”) sued CSX Transportation, Inc. (“Railroad”) pursuant to the Federal Employees Liability Act (“FELA”), 45 U.S.C. §§ 51-60 (2008), alleging that he contracted toxic encephalopathy and asbestosis in the course and scope of his employment as an electrician with Railroad. The case was tried to a jury, which found in favor of Employee and awarded him $5,000,000 in compensatory damages. Railroad appeals, alleging that the trial court erred in the following ways: by directing a verdict against it on the Railroad’s statute of limitations defense; by charging the jury with divergent standards of negligence and causation with regard to Railroad’s negligence and Employee’s negligence; by giving the jury a verdict form that, according to Railroad, predetermined the issue of whether Employee actually had the diseases he claims; by failing to instruct the jury that a plaintiff’s fear of cancer must be “genuine and serious”; by failing to declare, as a matter of law, that Employee’s evidence did not satisfy that standard; and by failing to declare a mistrial because of Employee’s closing argument, which Railroad claims was inflammatory. We reject all of Railroad’s arguments. Accordingly, we affirm.
Rebecca Woody v. A.W. Chesterton Company, et al. - M2007-01210-COA-R9-CV View
Hamilton County - An insulator and his wife sued multiple corporate defendants for damages related to his development of mesothelioma from exposure to asbestos. Most of the defendants filed motions for summary judgment based upon a release agreement signed by the plaintiffs in 1980 in settlement of another lawsuit concerning asbestos exposure. The trial court denied the motions for summary judgment. We have concluded that, except as to any claims arising from post-release asbestos exposure, the trial court erred in denying the motions for summary judgment.
Jessie Davis, et al. v. Ford Motor Company - W2007-01226-COA-R3-CV View
Shelby County - This case involves a claim for breach of warranty. The plaintiff purchased a used Ford from a GMC dealership. The truck came with Ford’s bumper to bumper limited warranty. The warranty specifically excluded from coverage any damage caused by after-market components and/or non-Ford components. Unbeknownst to the plaintiff, the truck had three after-market modifications: a “super chip,” a “K& N” air filter, and a “Magnaflow ” muffler. The plaintiff began experiencing oil consumption problems and trouble with the engine. He took the vehicle to several Ford dealerships for repair. One dealership service department recommended replacing the engine of the truck, but Ford denied warranty coverage, pointing to the after-market modifications as the cause of the truck’s problems. The plaintiff sent Ford a letter of revocation of acceptance, and thereafter filed suit alleging several claims, including breach of warranty and a claim under the Magnuson-Moss Warranty Act. A bench trial was held, and the court ruled in favor of Ford on all claims. The plaintiff appeals, and we affirm.
State of Tennessee, ex rel. Kathy D. Flores v. Lawrence Ralph - M2007-00881-COA-R3-CV View
Warren County - The State filed a petition for contempt against a man who had fallen far behind in his child support obligation, in part because he was incarcerated for a large portion of the time. The trial court reduced the arrearage to judgment in the amount of $28,632, found the father in contempt for failing to pay while he was not in jail, and sentenced him to serve 90 days in jail. Because the State did not prove beyond a reasonable doubt that the father had the ability to pay child support during the periods in question, we vacate the sentence for criminal contempt. We also vacate the arrearage judgment and remand this case to the trial court for reconsideration of arrearage.
Terry C. Clemons v. Chuck's Marine, et al. - W2007-00098-COA-R3-CV View
Shelby County - The trial court determined Defendant orally agreed to assume outstanding debt on personal property offered for consignment sales. The trial court further determined Defendant was equitably estopped from asserting the Statute of Frauds as a defense. We reverse.
Judith Mae Harber as Trustee of Trust A for the Estate of Edwin Erwin, et al. v. Bank of America, N.A. - W2007-00927-COA-R3-CV View
Shelby County - This is an action for breach of contract against a bank. Plaintiff Trustee sued bank for breach of the terms of a certificate of deposit (CD) by allowing her husband, who was neither the depositor nor her authorized agent, to redeem the CD held in trust for a $100,000 cashier’s check payable to Plaintiff as trustee. The Plaintiff Trustee appeals the trial court’s award of partial summary judgment to Defendant bank. Despite the bank’s breach of contract, Plaintiff Trustee was unable to maintain a suit founded upon her husband’s lack of authority to redeem the CD. The trial court found she ratified the redemption by previously filing suit against a different bank that had accepted the unendorsed cashier’s check for deposit, opened a checking account in Plaintiff’s name as trustee, and paid out the proceeds over Plaintiff’s forged signatures. The trial court concluded that by asserting ownership in the cashier’s check and the unauthorized checking account in the previous suit, the Plaintiff Trustee had manifested a clear intent to affirm her husband’s redemption of the CD. We agree. Even though Plaintiff Trustee pled alternative, inconsistent claims in the first suit, which is still pending, each claim was necessarily premised upon her husband’s authorized redemption of the CD. We accordingly affirm the judgment of the trial court.
Carl J. Kirby vs. Arthur Scarhag and Beatriz Scharhag - E2007-00304-COA-R3-CV View
Blount County - This matter originated in Sessions Court, where the Sessions Court held the defendants in contempt of court and awarded plaintiff attorney’s fees. On appeal to Circuit Court, the Trial Court held the defendants were not in contempt of court but awarded attorney’s fees and additional costs. On appeal, we affirm in part and reverse in part and remand.
Gwinn Fayne and Alfred Fayne vs. Teresa Vincent and David Vincent -
E2007-00642-COA-R3-CV View
Bradley County - In this dispute over the sale of a home, the Trial Court initially granted purchasers a rescission of the sale, but purchasers appealed to this Court. We ruled that the Trial Court had failed to put the purchasers in the position they would have occupied had the sale never occurred, and remanded the issues of various costs, pre-judgment interest and the fair rental of the property to take into consideration in placing the parties in a pre-contract status quo position. Also, remanded was the issue of attorney’s fees and whether the sellers had violated the Tennessee Consumer Protection Act. On remand, the Trial Court ruled that sellers had violated the Tennessee Consumer Protection Act and awarded attorney’s fees and pre-judgment interest, as well as adjusting the Judgment to place the parties in status quo upon rescission.
Temple Baptist Church, Manchester, Tennessee v. C & H Commercial Contractors, Inc. - M2006-02507-COA-R3-CV View
Coffee County - Claimant/Appellant Temple Baptist Church brought suit against Defendant/Appellee C & H Commercial Contractors, Inc. to enforce a provision for liquidated damages pursuant to a construction contract entered into by the parties. The contract contained a provision for liquidated damages at the rate of $250.00 per day if the contractor failed to complete the work within the time required by the contract. Temple Baptist Church also sought awards for a credit due under the contract for sales tax and for the contractor’s failure to obtain a bond. C & H Commercial Contractors filed an answer and counterclaim alleging that the church had wrongfully terminated the contract. The case was tried without a jury in March of 2006. The trial court found that both parities were mutually responsible for the delay in construction for a period of 220 days. The trial court found that the contractor was responsible for delays after this period and awarded liquidated damages in the amount of $14,250.00. The trial court also awarded attorney fees in the amount of $16,034.50, but denied the credits sought by the church. We affirm.
Phillip C. Penny, Kurtis Schilk, and Robert Tebbets v. City of Memphis and City of Memphis Civil Service Commission -
W2007-00861-COA-R3-CV View
Shelby County - This case involves the termination of a municipal police officer. The police department received a report on an attempted suicide by a mental patient. The appellant officer and other officers responded. When the officers arrived at the scene, the suicide victim was sitting on his front porch, bleeding from self-inflicted wounds. As the officers approached the individual, he tried to flee. Attempting to gain control over the individual, the officers repeatedly struck him with their police batons. The individual ran from the police and fell in the street. The officers again struck him with batons and handcuffed him while he was on the ground. The appellant officer held him on the ground by placing his baton across the back of his shoulders. Shortly afterward, the individual stopped breathing and died of a heart attack. After an investigation, three of the officers, including the appellant, were terminated for using excessive force in this incident. The terminations were upheld by the municipal civil service commission. The three officers then filed a petition for writ of certiorari, claiming that the commission’s decision was arbitrary and unsupported by substantial and material evidence. The trial court granted the petition as to two officers and reversed their terminations. However, it denied the petition as to the appellant officer because his termination was based on his disciplinary history as well as his conduct during the incident in question. The terminated officer now appeals. We affirm, finding that the commission’s decision to uphold the officer’s termination was supported by substantial and material evidence in the record.
Manhattan, Inc., d/b/a New York New York v. Shelby County, Tennessee, City of Memphis, and Memphis - Shelby County Office of Construction Code Enforcement -
W2006-02017-COA-R3-CV - View
Shelby County - This is a petition for a writ of mandamus. The plaintiff purchased a vacant nightclub and sought to reopen it as a topless club. To this end, the plaintiff nightclub owner filed an application for a beer permit and a compensated dance permit from the city beer board, and for a certificate of occupancy with the local construction code enforcement office. After protracted litigation, the nightclub owner obtained the necessary beer and compensated dance permits. Subsequently, the construction code office issued a certificate of occupancy to the nightclub owner, but later sought to restrict it to prohibit sexually-oriented entertainment. This was unsuccessful, so the construction code enforcement office revoked the certificate. The nightclub owner then filed the instant petition for a writ of mandamus against the county and the construction code enforcement office, asking the trial court to compel the construction code office to issue an unrestricted certificate of occupancy. The defendants argued, inter alia, that the plaintiff’s intended use for adult entertainment was not “grandfathered” because the plaintiff had abandoned the nightclub while seeking the required permits. After a bench trial, the trial court held in favor of the nightclub owner and granted the writ of mandamus. The defendants now appeal. We affirm, finding that the trial court did not err in finding that the nightclub owner’s business use was lawful, and that the nightclub owner did not abandon the property during the time it was involved in litigation over the beer permit.
Lisa Faye Roland Camp v. Randy Coleman Camp - W2006-02644-COA-R3-CV View
Crockett County - This appeal arises from a divorce action. Husband appeals the trial court’s award of alimony in futuro in the amount of $1600 per month to Wife. Wife asserts this appeal should be dismissed for unclean hands. She further asserts the trial court erred by finding the parties stipulated as to grounds for divorce, in setting alimony at $1600 per month, by not ordering an automatic increase in alimony upon emancipation of the children, by failing to award her all of her attorney’s fees, and by ordering Husband to name Wife and the children as beneficiaries of his life insurance policy. We affirm.
Carmen Rampaul Mohammed v. Farouk Mohammed - W2007-00360-COA-R3-CV View
Shelby County - This is an appeal involving a post-divorce award of alimony in futuro. The court awarded the wife a divorce from the husband after 36 years of marriage. The husband has a bachelor’s and master’s degree in electrical engineering. The wife does not have a college degree and makes a living as a hair stylist. In the final divorce decree, the court awarded the wife temporary alimony in the amount of $3,500 per month. The husband sought to reduce his alimony obligation. At the hearing, the court found a material change in circumstances and reduced the husband’s alimony obligation from $3,500 a month to $2,000 a month. The court ordered, however, that this $2,000 a month award was in futuro until the wife’s death or remarriage. The husband appeals, and we affirm and remand for a determination of an appropriate award of the wife’s attorney’s fees.
BellSouth Advertising and Publishing Corp. v. Primary Residential Mortgage, Inc. -
M2007-00200-COA-R3-CV View
WIlliamson County - The trial court held that a mortgage company’s branch manager had apparent authority to bind the company to local advertising contracts although there was a limitation on the branch manager’s authority which prohibited execution of contracts without the company’s approval. Since the mortgage company established the branch manager as a general agent, it was incumbent on the company to notify third parties of any limitations on the agent’s authority. Since it did not do so, the third party had a good faith belief in the agent’s apparent authority, and the trial court is affirmed.
Cases posted the week of 3/3/2008
Mary Ann Armstrong v. David Pierre Armstrong - M2006-02713-COA-R3-CV View
Rutherford County - This is an appeal from a divorce action. At the beginning of the trial in the case, the trial court indicated it would not entertain evidence relating to an award of alimony to the wife because she had no pleading requesting any relief before the court. The court then proceeded to hear evidence relating to the grounds for divorce and the division of the marital estate. After setting aside two funds that had been established as college funds for the benefit of the parties’ minor child, the trial court awarded sixty percent of the parties’ remaining marital estate to the wife. She was charged, however, with the proceeds from the sale of the marital residence that she had received during the pendency of the divorce and had depleted prior to the divorce hearing. She was also required to assume responsibility for the credit card indebtedness that she had accumulated during the pendency of the divorce and while she was receiving spousal support. Wife has appealed, primarily challenging the action of the trial court in excluding from the trial the issue of alimony and the trial court’s division of marital property. After a careful review of the record, we affirm the judgment of the trial court as modified to accurately reflect the trial court’s oral ruling made at the conclusion of the trial.
John Wesley Green v. Edna L. Green, et al. - M2006-02119-COA-R3-CV View
Davidson County - This case, a dispute over control of a closely-held corporation, presents an issue of first impression under the Tennessee Securities Act of 1980: whether reliance is an element of a cause of action pursuant to T.C.A. § 48-2-122(b)(1). The plaintiff, a shareholder and director of the corporation, brought a declaratory judgment action to enforce a contract in which the defendant, the plaintiff’s mother, agreed to sell her shares in the corporation to him. The defendant sought to rescind the contract. The corporation intervened, seeking to recover funds that the plaintiff had allegedly misappropriated from the corporation. The plaintiff’s counterclaim against the corporation was dismissed for failure to state a claim upon which relief could be granted. The Chancellor granted summary judgment in favor of the defendant with respect to the declaratory judgment action and granted summary judgment in favor of the corporation with respect to its complaint in intervention. We reverse and remand in part and affirm in part.
The Metropolitan Government of Nashville and Davidson County, Tennessee v. Gray's Disposal Co., Inc. - M2007-00073-COA-R3-CV View
Davidson County - The sole issue presented on appeal is the application of the statute of limitations. The Metropolitan Government of Nashville and Davidson County [hereinafter “Metro”] brought suit against Gray’s Disposal Company [hereinafter “Gray’s”] to recover tipping fees incurred for the disposal of waste at Metro’s Thermal Plant. The complaint alleged that Gray’s breached an express and implied contract to pay the tipping fees incurred from July 1998 until August 21, 2002. The trial court found that Metro’s claim was barred by the application of Section 28-3-105(3) Tennessee Code Annotated and dismissed their claim. We affirm.
Selma P. Griffin v. Munford Development
Company and Charles Walker - W2007-00812-COA-R3-CV View
Tipton County - This case involves the statute
of repose for actions based on improvements to real property.
The defendant developer purchased and developed a lot for sale
as part of a residential development. The plaintiff purchased
the lot by warranty deed. The developer represented to the plaintiff
that the lot was suitable for the construction of a residential
dwelling. Relying on this representation, the plaintiff purchased
the lot and built a house on it. Two years after the purchase,
the house began to develop cracks in the foundation and exterior
walls. Over the next two years, the problems worsened, so the
plaintiff obtained an evaluation by professional engineers.
The engineers informed the plaintiff that the house’s
structural problems may have arisen because the soil on which
the house was built was unsuitable to support such construction.
The plaintiff then sued the development company and its president,
claiming fraudulent misrepresentation, breach of implied warranty,
and breach of express warranty. The defendants moved for summary
judgment, asserting that the four-year statute of repose on
claims involving improvements to real property barred the plaintiff’s
action. The plaintiff argued that the statute of repose was
not applicable because her claims were based on misrepresentation.
The trial court granted the defendants’ motion, and the
plaintiff appeals. We affirm, finding that the plaintiff failed
to introduce evidence that any of the defendants had knowledge
that the soil conditions were unsuitable to support a residential
dwelling at the time the alleged misrepresentations were made.
Cracker Barrel Old Country Store, Inc., et al. v. Richard Epperson, et al. -
M2006-02424-COA-R3-CV - View
(Separate dissenting opinion filed by Clement, J.) - View
Davidson County - In denying a request for attorneys’ fees in an action involving the enforcement of a declaration of easements and restrictions, the trial court found the phrase “costs and expenses” in that declaration does not include recovery of attorneys’ fees. The trial court is affirmed.
Ruby Marsee vs. CSX Transportation, Inc., LaFollette Ambulance Service and Campbell County - E2007-00769-COA-R3-CV View
Campbell County - In this wrongful death action, plaintiff sued the ambulance service for failing to timely transport the deceased to the hospital. The Trial Court, upon hearing the evidence, directed a verdict for the defendants. In a Motion for a New Trial, plaintiff asked the Court to grant a new trial because a material witness who was not presented at trial was later located. The Trial Court denied plaintiff’s Motion and on appeal we affirm the Judgment of the Trial Court.
In Re: D. C. C. and J. E. C. - M2007-01094-COA-R3-PT View
Dickson County - Following a lengthy hearing, the trial court terminated the parental rights of the mother of two year-old twin boys on multiple grounds. We affirm the termination.
Trisha Ellen Dillingham v. David Clyde Downard - W2007-01429-COA-R3-CV View
Madison County - Mother sought court approval to relocate out-of-state due to a job transfer which would result in a significant increase in pay. When the matter came on to be heard, the job opportunity was no longer available. Father contends that the trial court should have dismissed the petition due to mootness. We agree. The matter is remanded to the trial court for entry of an order of dismissal.
State of Tennessee, Department of Children's Services vs. K.B., S.M.,et al -
E2007-02262-COA-R3-PT View
Washington County - In this parental termination case, the Trial Court terminated the parental rights of the mother, finding that clear and convincing evidence established statutory grounds for termination as provided in Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A) and (E). The Trial Court found there was clear and convincing evidence that it was in the best interest of the minor child to terminate the parental rights of the parent. The mother has appealed and on appeal we affirm the Judgment of the Trial Court.
In Re: Estate of David R. Leath - E007-00555-COA-R3-CV View
Knox County - Decedent’s will could not be located after his death, and decedent’s widow and stepdaughters petitioned the trial court to recognize and establish a copy of such will as decedent’s last will and testament. The trial court denied the petition upon determining that the petitioners failed to present sufficient evidence to overcome the strong presumption that the lost will was revoked by decedent. We affirm the judgment of the trial court and remand.
In the Matter of: L.L.F. & T.H.F. - M2007-01656-COA-R3-PT View
Putnam County - This is a termination of parental rights case. The Department of Children’s Services instituted a dependency and neglect proceeding and the mother’s two minor children were placed in DCS’ custody. At the time, the children and the mother were living with her boyfriend in Tennessee. After the children were placed in foster care, the mother moved back to Florida. Permanency plans were entered into with the goal of reunification with the mother. DCS created revised permanency plans with the goal changed to adoption. Ultimately, DCS initiated a termination proceeding based on the following statutory grounds: 1) abandonment by failure to visit; 2) abandonment by failure to support; 3) abandonment by failure to establish a suitable home; 4) substantial non-compliance with the permanency plan; and 5) persistent conditions. A hearing was held, and the trial court terminated the mother’s rights based on each of the aforementioned grounds. The mother appeals, and we affirm.
Swanson Developments, LP v. Bill Trapp and Jim Olsen, Individually and d/b/a Paksource a/k/a Parksource - M2006-02310-COA-R3-CV View
Rutherford County - Plaintiff filed this action in General Sessions Court, seeking back rent and possession of properties leased to defendants. The Sessions Court gave plaintiff monetary judgment against defendants, who appealed to Circuit Court and made an appeal bond in the amount of $500.00 pursuant to Tenn. Code Ann. § 27-5-103. In Circuit Court plaintiff contended that defendants should have given an appeal bond as specified in Tenn. Code Ann. § 29-18-130 and asked the Circuit Court to dismiss the appeal. The Circuit Court refused and ultimately dismissed plaintiff’s claims. On appeal we hold that defendants failed to give the proper statutory bond to appeal the case to Circuit Court and that the appeal was not properly perfected and the Judgment of the Sessions Court will be reinstated upon remand.
Cases posted the week of 2/25/2008
Clark E. Frierson v. Robert C. Johnson - M2006-02598-COA-R3-CV View
Bedford County - The trial court entered a default judgment in favor of the plaintiff and dismissed the defendant’s countercomplaint pursuant to Tenn. R. Civ. P. 37.02 based upon the defendant’s failure to respond to the court’s orders regarding discovery responses. The defendant claims that his failure to provide the discovery responses and to appear at several hearings resulted from his mistaken belief that an attorney was handling the matter for him. The trial court denied the defendant’s Rule 60 motion. Because the defendant did not receive proper notice of the hearing on the plaintiff’s motion for default, we have determined that the trial court erred in denying the defendant’s Rule 60 motion.
Town of Huntsville, Tennessee, et al. v. Scott County, Tennessee, et al. -
M2006-02146-COA-R3-CV View
Davidson County - The dispositive issue on appeal in this annexation dispute by the annexing municipality against the county and Tennessee Commissioner of Revenue is which tax allocation statute controls the allocation of Local Option Revenue derived from the annexed territory, the one in effect when the municipality passed the annexation ordinances upon final reading or the one in effect when quo warranto litigation challenging the ordinances was concluded. The county and Commissioner of Revenue contend the statute in effect when the quo warranto actions challenging the validity of the ordinances were concluded applies, because that is the date the annexations became operative. The municipality contends that the tax scheme in effect when the ordinances were passed by final reading applies became the quo warranto actions challenging the ordinances were dismissed due to the petitioners’ failure to effect sufficient service of process on the municipality. The Chancellor ruled in favor of the municipality, finding in pertinent part that the quo warranto litigation that was filed but not followed by sufficient service of process had no effect on the operative dates of annexation. We reverse, finding that the statute in effect when the quo warranto litigation was concluded controls the allocation of tax revenue from the annexed territories.
Linda Jean Cook (Ramsey) vs. Larry Dean Cook - E2007-00750-COA-R3-CV View
dissenting opinon by Judge Susano - View
Jefferson County - In this post-divorce action, Linda Jean Cook (Ramsey) (“Wife”) requested the Trial Court to order her ex-husband, Larry Dean Cook, (“Husband”) to execute a Qualified Domestic Relations Order (“QDRO”) dividing his retirement plan according to the Property Settlement Agreement incorporated into the parties’ divorce decree more than ten years ago. The parties had previously drafted – and the Trial Court approved – several QDROs that were rejected by the plan’s administrator. Wife maintained that she was supposed to receive her one-third of the plan in shares of stock, which had appreciated considerably since the divorce. Husband asserted that Wife was entitled to a specific dollar amount instead. Following a trial, the Trial Court found that Wife’s portion of the plan was one-third of the cash value of the plan at the time of the divorce, and then awarded her an additional six-percent interest, for a total of $46,184.27. We find no error in the Trial Court’s judgment, and we affirm.
ESI Companies, Inc., v. Ray Bell Construction Company, Incl., et al. -
W2007-00220-COA-R3-CV View
Shelby County - This appeal involves the applicability and enforceability of a forum selection clause in a construction contract. The contract was for the design and construction of a Kentucky correctional facility. The contract between the Commonwealth of Kentucky and the general contractor, a Tennessee corporation, provided that all actions on the contract must be filed in Franklin County Circuit Court in Frankfort, Kentucky. The general contractor entered into a subcontract with another Tennessee corporation for the performance of certain work on the Kentucky correctional facility. The subcontract incorporated all terms of the original contract by reference and contained a “flow-down” provision. The subcontractor later sued the general contractor in Shelby County, Tennessee. When the general contractor moved to dismiss for lack of venue, the subcontractor contended that the forum selection clause did not apply to its claims. The subcontractor also contended that the forum selection clause was unenforceable under the facts of this case. The trial court found in favor of the subcontractor. We granted the general contractor’s Rule 10 application for extraordinary appeal. We reverse and remand, finding that the forum selection clause was applicable and enforceable, and the lawsuit should have been filed in Kentucky.
In the matter of: The Estate of James F. Geary, Deceased; James Samual Geary v. Connie S. Geary -
W2007-00958-COA-R3-CV View
Madison County - This appeal involves a petition to construe a will and ademption by extinction. The decedent had a non-retirement cash brokerage account that contained four municipal bonds worth approximately $340,000. Five percent of the account was held in mutual funds and cash. The decedent executed a holographic will that included a specific bequest of the contents of the brokerage account to his wife. The will identified the account by its account number and brokerage firm, and it specifically described the contents of the account being bequeathed to the wife. After the decedent executed the will, his brokerage firm assigned a new account number to his brokerage account. The decedent subsequently arranged an “in-kind” transfer of all the contents of the account to another brokerage firm. The contents of the new account were the same as the contents of the old account: the same four municipal bonds and a small amount of cash and cash equivalents. When the decedent died, he was survived by his wife and his son from a previous marriage. The son contended that because the brokerage account number named in the will held no assets, the bequest was extinguished. He argued that the brokerage account with the new brokerage firm should pass by intestate succession, and therefore he should receive seventy percent of the asset. The probate court held that the change in account number and broker did not materially change the subject of the specific bequest, and therefore the wife was entitled to the contents of the brokerage account. The son appeals. We affirm.
Joanne Ruth Bearb v. Michael Edwin Bearb - W2007-00402-COA-R3-CV View
Madison County - This appeal arises from a divorce case. The trial court awarded Wife a divorce based on adultery and awarded her alimony in futuro the amount of $5000 per month for ten years and $2500 per month thereafter. The trial court additionally awarded Wife alimony in solido in the amount of $100,000, and awarded Wife her attorney’s fees. Husband appeals. We affirm the award of divorce to Wife and the alimony awards, but reverse the award of attorney’s fees.
Central Sales and Services, Inc., Edward J. Kehrer and Ralph A. Deavers v. Mark A. Berg - M2007-00286-COA-R3-CV View
Humphreys County - Plaintiff corporation and stockholders sued defendant to enforce a Stock Redemption and Shareholder Agreement signed by defendant, when he refused to comply with the terms of the Agreement after he was terminated from the company. The Trial Court granted plaintiff partial summary judgment, finding that the Agreement was enforceable, and defendant has appealed. We affirm the partial summary judgment of the Trial Court and remand, with instructions.
William S. Mathias vs. Pamela Sue Mathias - E2006-02294-COA-R3-CV View
Hamilton County - In this divorce action the Trial Court granted the parties a divorce, awarded the wife attorney’s fees and expenses and periodic alimony. The Trial Judge also divided the extensive marital estate between the parties. The husband has appealed and raised issues as to the award of alimony, attorney’s fees and the division of the marital estate. We affirm the Judgment of the Trial Court.
Marc A. Schwartz v. James Neely, Commissioner of Labor and Workforce Development for the State of Tennessee, et al. - W2007-01862-COA-R3-CV View
Shelby County - This appeal arises from the denial of Plaintiff’s claim for unemployment benefits by the Tennessee Department of Labor and Workforce Development. We affirm.
Brigadoon Partners, LLC vs. Dale Hughes,
et al. - E2007-00267-COA-R3-CV View
Bradley County - The plaintiff purchaser
brought this action for specific performance of an
agreement for the sale of a parcel of real estate.
The trial court granted the seller summary judgment
upon its finding, among other things, that the property
description in the agreement was insufficient to satisfy
the requirements of the statute of frauds. We affirm
the trial court’s judgment that the
description of the property, which was to be divided from a
larger tract owned by the seller, as “[i]n Cleveland,
Tennessee, fronting on Paul Huff Pkwy at exit 27, and being
further described as 1.5 acres fronting on the PKWY and I-75,” was
insufficient, and therefore the sale agreement was unenforceable
pursuant to the statute of frauds.
Thomas Morrow, et al vs. Ronnie Bull,et al. - E2007-00606-COA-R3-CV View Hamilton County - The tenants, who leased a
newly-constructed house from the builder/owner, sued the builder/owner
alleging, among other things, that the house was negligently
constructed in that it was built on a site that unreasonably
exposed the house to excessive moisture and with a deficient
water runoff and drainage system. The tenants sought compensation
for personal injury and property damage allegedly caused by
toxic mold in the house due to excessively wet basement walls.
The trial court granted the builder/owner summary judgment.
Upon review, we vacate the trial court’s summary judgment
based on our finding that genuine issues of material fact exist.
M. R. Stokes Company, Inc. v. Michael L.
Shular, et al. - M2006-02659-COA-R3-CV View
Sumner County - This is a construction
case. In a contract prepared by the plaintiff, contractor
agreed to install sewer lines, water lines, roads and
to perform certain site preparation work for a section of a subdivision
development owned by the defendant-owner. The total contract price
is $925,000, which includes the material and labor to complete
the project. The trial court entered judgment for contractor.
Owner appeals and contractor cross-appeals. We affirm in part,
reverse in part, and remand for further proceedings consistent
with this opinion.
Elga
Jean Hinson, et al. v. Claiborne & Hughes Health Center -
M2006-02306-COA-R3-CV View
Williamson County - A ninety-one year old man
died a month after he was admitted to the hospital. Almost a year
after his death, two of his daughters filed a complaint against
the nursing home where he had resided prior to his hospital admission.
They alleged that the nursing home’s employees had been
guilty of negligence which caused or contributed to their father’s
death. The trial court granted summary judgment to the nursing
home on the wrongful death claim because Plaintiffs were unable
to successfully refute the affidavit of the defendant’s
medical expert, who testified that the medical records showed
that Plaintiffs’ father
had died from causes unrelated to any act or omission on the part
of the nursing home or its employees. The court also dismissed
all other claims based on general allegations of negligence by
the nursing home because Plaintiffs’ affidavits failed to
allege any injuries with specificity and because of the passing
of Tennessee’s one-year statute of limitations period. We
affirm.
David Michael Rust v. Southern Environmental
Contractors, Inc., et al. - M2006-00704-COA-R3-CV View
Davidson County - An employee/minority shareholder appeals
the summary dismissal of his action in which he sought to recover commissions
the corporation allegedly owed him for prior work and damages arising out
of an alleged breach of fiduciary duty and fraud by the president/majority
shareholder. The trial court granted the Motions for Summary Judgment filed
by the corporation and by the president/majority shareholder, finding the
employee failed to show that there was a genuine issue for trial as to whether
employee was owed commissions and whether the president/majority shareholder
committed fraud or breached his fiduciary duty. We affirm.
Joe Gambrell, et al. v. Sonny Nivens, et al. - W2007-00102-COA-R3-CV View Fayette County - This case involves
the enforcement of restrictive covenants in equity.
After subdividing their property, imposing restrictions
on the three lots they sold, and retaining the remaining
land, vendors brought suit against remote grantees
to enforce the restrictive covenants and to enjoin
them from operating a wedding chapel, for commercial
use, on the land. The central issue on appeal is whether the restrictions
bind the remote grantees when the covenants were listed on an undated
and unsigned attachment to a deed that neither identified encumbrances
nor incorporated the attached restrictions. Following a trial on
the matter, the trial court permanently enjoined the commercial activity
because the remote grantees took title with actual notice of the
restrictions. Finding ample support for the imposition of an equitable
servitude, we concur in the trial court’s judgment. Affirmed
and remanded.
Keenan R. Keen v. Tennessee Department of Correction, et al. -
M2007-00632-COA-R3-CV View
Hickman County - A Prison Disciplinary Board found a prisoner guilty of two disciplinary
infractions, fined him $5.00 for each infraction and sentenced him to two
thirty-day terms in punitive segregation. The prisoner filed a petition
for writ of certiorari, alleging that there were irregularities in the procedures
followed by the disciplinary board and that its actions were arbitrary,
capricious, and characterized by an abuse of discretion. The trial court
granted the writ, and the department accordingly sent the administrative
record to the court for review. The respondents then filed a motion for
judgment on the record. The trial court granted the motion and dismissed
the prisoner's claim. We affirm the trial court.
Sara Hutchison v. Gregory L. Rutt, et al. -
M2006-02255-COA-R3-CV View
Putnam County - In this personal injury action
arising from an automobile accident, the defendants, who conceded
liability, contest the trial judge’s award to plaintiff of $104,043.29 in damages. Having determined the evidence preponderates against the trial judge’s determination that the accident caused the plaintiff’s
migraine headaches and the amount of the award, we modify the
judgment by reducing the award of damages to $51,043.29.
State of Tennessee, Department of Children's Services v. Leigh Ann McAlister, et al. -
W2007-00171-COA-R3-PT View
Shelby County - This is a termination of parental
rights case. Mother/Appellant appeals the Order of the Shelby County
Juvenile Court terminating her parental rights to her two minor children.
Specifically, Appellant asserts that the grounds of persistence of
conditions and failure to substantially comply with the permanency
plans are not supported by clear and convincing evidence in the record,
and that termination of her parental rights is not in the best interests
of the children. Because we find clear and convincing evidence in
the record to support termination on the grounds of failure to substantially
comply with the permanency plans, and clear and convincing evidence
that termination is in the best interests of the children, we affirm.
In Re: Loyd R. Shults, deceased; Robert L. Shults, Barbara Shults Smith and Terry Wayne Shults, v. Suzanne Shults - M2006-02013-COA-R3-CV VIew
Sumner County- This appeal arises from a dispute
regarding interpretation of Loyd R. Shults’s last will and testament, which incorporated by reference his and his wife’s antenuptial property agreement. The Chancery Court interpreted Mr. Shults’ last will and testament, determining certain property ownership rights acquired by the decedent during his marriage to be his solely. The court also ordered reformation of the testamentary trust, contained within the will, to identify the biological children of the decedent as the remainder beneficiaries. The Decedent’s widow, Suzanne Shults, now challenges the Chancery Court’s orders, first, arguing her husband’s property, while titled solely in his name, should be considered marital property because it was acquired during the marriage. Suzanne Shults also argues the antenuptial agreement between her and her deceased husband indicates his intent to leave the corpus of the trust to her because property acquired during their marriage was to be marital property. We disagree with the appellant’s
argument and affirm the ruling of the Chancery Court. Cost of this
appeal shall be assessed to the appellant, Suzanne Shults.
John R. Shomo and wife, Sylvia J. Shomo v. The City of Franklin, Tennessee -
M2006-00319-COA-R3-CV View
Williamson County - The Shomos owned several
sewer taps on undeveloped property. The City of Franklin sold
sewer taps on the property, offering lower prices than the Shomos.
The Shomos sued Franklin asserting causes of action for breach
of contract, unjust enrichment, conversion, and violation of the
duties of a public utility. The trial court granted Franklin’s
motion to dismiss on the grounds that the complaint contained
no set of facts that would entitle the Shomos to any relief according
to law. We affirm.
Melanie Gayle King (Lyon) and Bradley N. Lyon v. James David King -
M2007-01156-COA-R3-PT View
Cannon County - The mother and stepfather of
two minor children filed a petition against the father of the
children to terminate the father’s parental rights. The petitioners alleged, inter alia, that the father abandoned the children by failing to exercise any of the residential time and vacation time awarded to the father in the divorce and that he had willfully failed to visit the children during the four months preceding the filing of the petition. Following a bench trial, in which the mother and stepfather were represented by counsel, but the father was pro se, the trial court dismissed the petition to terminate based upon the finding that “due to the costs of transportation between the parties respective homes in Giles County and Cannon County and due to [the father’s] limited income,” the petitioners had failed to establish the ground of abandonment. The mother and stepfather have appealed, contending the trial court failed to correctly apply the law to the facts of this case and that the evidence clearly and convincingly proves that the father’s failure to visit was willful due to the fact he had a vehicle, for which he could afford insurance, and the cost of driving the approximately sixty miles between their homes was within his financial means. We have determined that the trial court committed reversible error when it failed to appoint a guardian ad litem to represent the best interests of the minor children, which is mandated by Tenn. S. Ct. R. 13 § 1(d)(2) in proceedings to terminate a parent’s rights when the petition is contested. We have also determined that if the father was indigent, which fact may be significant to the issue of willfulness, he had a constitutional right to appointed counsel. As Tenn. S. Ct. R. 13 § 1
(c) and (e) mandates, when the father appeared without counsel,
the trial court had an affirmative duty to advise the father of
his rights and to conduct an indigency hearing to determine if
he was without sufficient means to pay reasonable attorney fees
for representation in this case and, if so, to appoint counsel
to represent him. We therefore vacate the judgment of the trial
court and remand this matter to the trial court for further proceedings
consistent with this opinion, including if necessary a new trial
on the merits of the issues raised in the petition filed in this
matter.
In Re: T.C.S.S. - M2007-02249-COA-R3-PT View
Wilson County - The father of an infant appeals
the termination of his parental rights. The trial court found
inter alia that his rights should be terminated pursuant to Tenn.
Code Ann. § 36-1-113(g)(6) due to the fact the father was confined in prison as a result of a criminal act under a sentence of more than ten years
imposed when the child was under eight years of age and termination was in the child’s best interests, due in part to the child’s
numerous and serious medical complications and the fact the father had
never met the child. Finding no error, we affirm.
Cases posted the week of 2/18/2008
Daniel Pantoja Garcia vs. Norfolk Southern Railway Company -
E2006-02674-COA-R3-CV View
Hamilton County - In this appeal of a directed
verdict in a wrongful death case, Daniel Pantoja Garcia (“Husband”) claims that Norfolk Southern Railway Company (“Norfolk Southern”) was negligent in failing to warn his now-deceased wife, Lydia Garcia (“Wife”), of the presence of diesel fuel inside a fuel tank that Wife, as an employee of Progress Rail Services Corporation (“Progress Rail”), was assigned to dismantle. As Wife was cutting the tank with a torch-cutter on Norfolk Southern’s
property, the tank exploded, killing Wife. The trial court granted
a directed verdict because it found no evidence that Norfolk Southern
owed any duty in this case. We affirm.
Beverly C. Smith v. Ronnie R. Smith and Betty Jo Smith -
M2007-00511-COA-R3-CV View
Wilson County - Buyers of commercial property,
who were denied possession of that property for a period of two
years, appeal from the trial court’s determination that they failed to carry their burden of proving a fair rental value for one of the three units of the property. Finding that the evidence preponderates against the trial court’s
determination, we reverse.
Boggs Kurlander Steele, LLC v. Horizon Communications, Inc. -
M2006-00018-COA-R3-CV View
Davidson County - This appeal involves a declaratory
judgment regarding the termination of a contract to install a cable
system and provide cable service to a trailer park as well as a
counter-complaint for damages. The trial court determined that the
contract was properly terminated and dismissed the counter-complaint.
On appeal, the Appellant argues that (1) the Appellee waived its
contractual right to have this matter decided pursuant to Kentucky
law; (2) that the trial court erred in determining that it materially
breached the contract by failing to install a new system in a timely
manner; (3) that the trial court erred in determining that it did
not provide cable service equal to the service rendered by the former
cable provider; (4) that the trial court erred in determining that
the contract was properly terminated; (5) that it is entitled to
damages because the Appellee failed to notify the Appellant with
information about new residents as required by the contract; and
(6) that the trial court erred by awarding the Appellee its attorney’s fees and failing to award the Appellant its attorney’s fees. We find that the Appellee has waived its right to have this matter determined pursuant to Kentucky law. The trial court did not err in determining that the Appellant materially breached the contract by not providing cable service equal to the service previously provided and that the contract was properly terminated. Furthermore, we find that the Appellant is not entitled to damages because the Appellant did not prove what damages it incurred due to the Appellee’s failure to provide the homes of new residents as required by the contract. Finally, the trial court did not err in awarding the Appellee’s attorney’s fees. The judgment of the trial court is affirmed, and this cause is remanded to the trial court for the award of Appellee’s attorney’s
fees on appeal.
Donald T. Arendale v. Glenda S. Arendale (Schuett) -
W2005-02755-COA-R3-CV View
Shelby County - The trial court entered an order modifying
its earlier parenting plan. After the Court’s judgment, the mother
filed a motion attacking the jurisdiction of the Court to modify the prior
order. The trial court overruled the motion. On appeal, we find that neither
the child nor either of the parents have resided in Tennessee since 2002.
Therefore, the trial court did not have subject matter jurisdiction to
modify its prior order. We reverse and dismiss.
In Re C.H.E.H. - E2007-01863-COA-R3-PT View
Hamilton County - In this termination of parental
rights case, L.M.H.H. (“Mother”) gave birth to her daughter, C.H.E.H., while incarcerated for prostitution and violation of probation. Mother surrendered C.H.E.H. to the Tennessee Department of Children’s Services (“DCS”). DCS placed C.H.E.H. with a foster family when she was eight days old. C.H.E.H. has Down Syndrome, which causes her significant medical problems and developmental delays. DCS prepared a parenting plan for Mother when she was released from jail, but Mother made no progress on this plan because of her drug addiction and frequent incarceration. Mother was released again from jail but this time into the Family Way program, a substance abuse program for mothers. Shortly thereafter, DCS prepared a second permanency plan for Mother, and Mother did make progress on its requirements. Mother currently is participating in drug counseling through Family Way and has not failed a drug screen since starting the program. Mother has obtained a job, has an apartment where two of her other children reside with her, has completed a parenting assessment, and has participated in therapy sessions. DCS filed a petition to terminate Mother’s parental rights to C.H.E.H. in February of 2007. Following a trial, the Trial Court terminated Mother’s parental rights based upon four grounds for termination. Mother appeals. After careful review, we reverse the judgment of the Trial Court as to the termination of Mother’s parental rights under Tenn. Code Ann. § 36-1-113(g)(1) for willful failure to visit and willful failure to support the Child and Tenn. Code Ann. § 36-1-113(g)(2) for substantial noncompliance with the permanency plans. We affirm the remainder of the Trial Court’s judgment terminating Mother’s parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(3).
Jeanette Scoggin vs. Guy Scoggin - E2007-00579-COA-R3-CV View
Knox County - Jeanette Scoggin (“Wife”) filed for divorce from Guy Scoggin (“Husband”) following a marriage of four years. The parties agreed on how to equitably divide the marital property, with the exception of Husband’s interest in a limited partnership. The Trial Court divided Husband’s
interest in the limited partnership by awarding Wife a 50% interest
in any distribution of income or proceeds from a sale. Wife appeals
and is proceeding pro se. Wife appears to claim that she should have
been given an interest in other business ventures of Husband. Wife
also claims her attorney failed to have certain documents admitted
at trial. We affirm.
Western Express, Inc. v. Lexington Insurance Company -
M2006-02249-COA-R3-CV View
Davidson County - In this declaratory judgment action,
the insured contests the trial court’s ruling that a Commercial Property Policy provided no coverage for a theft loss and imposed no duty on the insurer to provide a defense for a claim arising out of that loss. The trial court found that the policy’s
Attended Vehicle Protective Provision was applicable and unambiguous,
and thereby excluded the theft loss from coverage under the policy.
Because there was no coverage for the theft loss, the trial court found
that the insurer had no duty to defend the insured for claims arising
out of that loss. The insured contends that the provisions of the insurance
contract were ambiguous, that coverage was not clearly excluded for
this loss, and that regardless, the insurer was obligated to provide
a defense per a mandatory federal endorsement. We affirm.
City of Knoxville v. Knox County, Tennessee - M2006-00916-COA-R3-CV View
(Separate concurring opinion filed by Cottrell, J.) - View
Davidson County - The issue on appeal in this
annexation dispute between the annexing city and the county is
which tax allocation statute controls the allocation of Local
Option Revenue derived from the annexed territory: the one in
effect when the city passed the annexation ordinance on final
reading, or the one in effect when the annexation ordinance became
operative following a protracted quo warranto action. The city,
which annexed valuable retail and commercial property, contends
the tax scheme in effect in 1995 when the ordinance passed final
reading applies. The county contends Tenn. Code Ann. § 6-51-115(b)(2) (1998), which was enacted after the ordinance was passed by the city, applies because it was in effect when the ordinance became operative. The Chancellor ruled in favor of the city, finding the statute in effect when the city passed the annexation ordinance applies. We reverse finding Tenn. Code Ann. § 6-51-115(b)(2)
(1998), which was in effect when the ordinance became operative,
controls the allocation of tax revenue from the annexed territory.
In Re: B. C. W. - M2007-00168-COA-R3-JV View
Davidson County - This is an appeal from the
dismissal of a petition to modify custody of a minor child. The
trial court determined that the petitioner, the natural father
of the child, should not be afforded the superior rights of a
parent. We disagree and reverse.
Willard D. Gore and Marina F. Gore v. Tony Stout and Linda Stout -
M2006-02111-COA-R3-CV View
Putnam County - This appeal involves a dispute
between two landowners over use of a route across the defendants’ land that the plaintiffs use for access to their nearby land. Plaintiffs filed suit contending they had a right to use the disputed route. The trial court determined that the route had been dedicated and accepted as a public road, that the plaintiffs were entitled to a prescriptive easement over the defendants’ land, and that the plaintiffs had a right to use the road by adverse possession. We have determined that the contested section of the route is not a public road, that adverse possession does not apply, and that the plaintiffs are entitled to a prescriptive easement over the defendants’ land.
Flautt & Mann, a Partnership v. The Council of the
City of Memphis, et al. -
W2006-02227-COA-R3-CV View
Shelby County - This appeal involves protracted
litigation concerning the zoning of a parcel of land located
in Memphis, Tennessee. After a bridge, which provided the only
access to the property, collapsed, the landowners planned to
install and maintain billboards on the subject parcel by helicopter.
The landowners initially applied to the Memphis City Council
to have the subject parcel re-zoned from agricultural uses to
commercial uses. The Memphis City Council rejected the landowners’ application.
The landowners filed a petition for review by common law and statutory writ
of certiorari and an action for declaratory judgment in the circuit court.
The circuit court entered an order reversing the decision of the Memphis
City Council and remanding the case to the Council for a new hearing.
Upon remand, the Memphis City Council once again rejected the landowners’ application. The landowners filed a petition for contempt in the circuit court alleging the Council violated the court's order on remand. The trial court found that the Council violated its order, but that the Council was not in willful contempt of the court’s order because it relied on the erroneous advice of its lawyer in interpreting the order. The trial court remanded the case to the Memphis City Council for a new hearing. The City filed an appeal in this Court. After noting that reliance on the advice of counsel is not a defense to contempt, we reversed the trial court’s decision and remanded the case to the trial court to determine if the contempt was willful. On remand, the trial court found that the City was in willful contempt of the trial court’s order and assessed daily damages of $1,500, accruing from June 13, 2003 order, until the Council complied with the court’s order. The City filed a second appeal in this Court. We vacate the trial court’s damages order and remand the case to the trial court for further proceedings consistent with this opinion.
Federal Express vs. The American Bicycle
Group, LLC - E2007-01483-COA-R9-CV View
(Separate concurring opinion filed by Susano, C.) View
Knox County - Federal Express
(“Plaintiff”)
filed a Complaint on Sworn Account in the Knox
County Chancery Court claiming that the defendant,
The American Bicycle Group, LLC (the “LLC”),
owed Plaintiff $121,619.32. The LLC filed a Tenn.
R. Civ. P. 12.02(3) motion to dismiss based on
improper venue. The LLC claimed that venue was
improper in Knox County because: (1) Plaintiff’s
principal place of business was in Shelby County;
(2) the LLC’s principal
place of business was in Hamilton County; and (3)
the alleged cause of action arose in Shelby County.
Following a hearing, the LLC’s motion to dismiss
was denied by the trial court because the LLC’s
registered agent for service of process was located
and served in Knox County. Both the trial court and
this Court granted the LLC’s request for permission
to file a Tenn. R. App. P. 9 interlocutory appeal.
The sole issue on this appeal is whether the Knox
County Chancery Court is a proper venue for Plaintiff’s
action. We affirm the judgment of the trial court.
John S. Bright vs. Crystal L. Gue, M.D. - E2007-00127-COA-R3-CV View
Knox County - In this medical malpractice case,
the trial court granted summary judgment in favor of the hospital
and a treating physician. Subsequently, the trial court denied
the plaintiff’s motion
to set aside the summary judgment in favor of the physician.
We vacate the trial court’s judgment denying the motion
to set aside its summary judgment in favor of the physician
upon our finding that the plaintiff was denied adequate notice
of the hearing on the motion for summary judgment. We vacate
the summary judgment against the hospital upon our determination
that the hospital did not negate the claimed basis of the plaintiff’s
suit or demonstrate that the plaintiff’s complaint was
time barred under the applicable statutes of limitation.
IN The M atter of J.O.M. - E2007-02219-COA-R3-PT View
Sullivan County - The Juvenile Court terminated
the parental rights of J.S. (“Father”)
to his son, J.O.M. (the “Child”). The Juvenile Court
determined that the Department of Children’s Services (“DCS”)
had proven by clear and convincing evidence that grounds existed
to terminate Father’s parental rights. Specifically, Father
had been confined in a correctional facility under a sentence
of ten or more years and the Child was less than eight years old
at the time the criminal sentence was imposed. The Juvenile Court
also concluded that there was clear and convincing evidence that
terminating Father’s parental rights was in the Child’s
best interest. Father appeals raising various challenges to the
Juvenile Court’s judgment. We affirm.
Albert Bender, et al v. Nashville Electric Service - M2006-02509-COA-R3-CV View
Davidson County - In February 2005, Davidson
County residents sued the Nashville Electric Service and two of
its representatives for damages allegedly caused by the removal
of trees from their property. As of May 2006, the case had not
been set for trial as required by Local Rule 18.01 and the trial
court dismissed the cause for residents’ failure to prosecute
pursuant to Tenn. R. Civ. P. 41 in October 2006. Residents appeal.
We affirm.
MBNA
America Bank N.A. v. Charles Hendricks - M2007-00583-COA-R3-CV View
Cheatham County - Bank filed suit to enforce an arbitration
award for a debt owed by a former credit card holder. The trial court
granted summary judgment against the debtor, who appeals based on alleged
procedural improprieties. We affirm
Cases posted the week of 2/11/2008
Sarah Elizabeth Ferguson v. Johnny Wayne Ferguson - M2005-02468-COA-R3-CV View
(Separate dissenting opinion filed by Cottrell, J.) View
Lawrence County - Husband appeals the award of
certain items of personal property to Wife in a divorce action.
Husband and Wife lived together for many years prior to the marriage
and acquired both personal and real property during their cohabitation
in addition to the property each owned individually. Husband argues
that there was no evidence to support a finding that items awarded
Wife, specifically a Corvette, a boat, and a trailer, could be
considered marital property or the separate property of Wife.
Thus, Husband contends that the trial court erred in its distribution
of assets. Finding no error below, we affirm the judgment of the
trial court.
Clear Channel Outdoors, et al. v. Tennessee Department of Transportation -
M2006-02322-COA-R3-CV View
Davidson County - This appeal is from a final
order in a proceeding for judicial review of an administrative
decision pursuant to Tenn. Code Ann. § 4-5-322. The Tennessee Department of Transportation (“TDOT”) filed this action claiming that a billboard which was rebuilt by the defendants after it was blown down in a storm did not meet the requirements of the regulation governing reconstruction of storm-damaged billboards. Following a hearing, the Administrative Law Judge determined that the rebuilt billboard violated the applicable regulation and ordered its removal. The decision was affirmed by the TDOT Commissioner (“the Commissioner”), and later by the Chancery Court for Davidson County (“the Trial Court”). On appeal, we find that the Trial Court did not have the necessary administrative record before it as required when it reviewed this case. Because the Trial Court’s review is limited to the administrative record, Tenn. Code Ann. § 4-5-322(g), and the complete administrative record was not available to the Trial Court, we vacate the Trial Court’s
judgment and remand for a new review to be conducted after the
full administrative record is filed with the Trial Court. We vacate
and remand.
Virginia Elrod v. Continental Apartments and Ronnie L. Randall -
M2007-01117-COA-R3-CV View
Coffee County - The unsuccessful plaintiff appeals
the summary dismissal of her slip and fall claim against an apartment
complex and its owner. During the second day of a winter storm,
the plaintiff traveled along icy roads to make a security deposit
at the apartment complex. Although she had carefully exited her
vehicle and walked to the office to make the deposit, she chose
to “trot” back along the same path to her car. While trotting to her car, she slipped on the icy parking lot, breaking her ankle. The trial court summarily dismissed the plaintiff’s complaint. Viewing the facts in a light most favorable to the plaintiff, we find that reasonable minds could not differ that the plaintiff’s
fault was greater than that of the defendants. We, therefore,
affirm.
Nickie Duran, et al. v. Hyundai Motor America, Inc., et al. -
M2006-00282-COA-R3-CV View
Dickson County - This appeal involves a single
vehicle accident in which the driver was seriously injured. The
driver filed suit against the manufacturer of the automobile in
the Circuit Court for Dickson County, alleging that the automobile’s exhaust system was dangerously defective and seeking both compen