The following Opinions are available for download:
Cases posted the week of
06/30/2003
Jeff Landowski vs. Marla
Landowski - W2002-01689-COA-R3-CV View
Jeff
Landowski vs. Marla Landowski - W2002-01689-COA-R3-CV (Dissent)
View
Obion
County - Father filed a petition to modify the existing custody
agreement. The trial court granted the petition and named Father as the primary
residential custodian with the parties three minor children. Mother appeals and
we affirm.
Cases posted the week of
06/23/2003
Susan Whiton vs. Alan
Whiton - E2003-01279-COA-RM-CV View
Sevier County
- Upon appeal to the Supreme Court, it reversed our determination that the
guidelines promulgated with regard to child support were unconstitutional and
remanded the case to this Court for reconsideration in light of the
recently-released opinion in Gallaher v. Elam, S.W.3d 2003 WL 2010731 (Tenn.
May 2, 2003).f
Louis Federico v. Aladdin
Industries - M2002-02351-COA-R3-CV View
Davidson
County - Louis Federico ("Plaintiff") began working for Aladdin
Industries, LLC ("Aladdin") after they agreed in writing to his terms of
employment. Among other things, they agreed Plaintiff would receive an annual
salary of $180,000, plus a guaranteed bonus in the first year of $72,000. They
also agreed to a separation package which provided that should Plaintiff lose
his job other than through his own volition, he would receive "12 months'
salary, prorated bonus and outplacement services." Plaintiff's position was
eliminated before his first year of employment was completed. Plaintiff filed
this lawsuit claiming the language in the separation package entitled him to a
"separation bonus" of $72,000 in addition to the guaranteed first year bonus in
the same amount. Aladdin disagreed, arguing Plaintiff was not entitled to any
additional bonus over and above the guaranteed first year bonus because he
never began working a second year. The Trial Court agreed with Aladdin and
dismissed Plaintiff's complaint. Plaintiff appeals, and we affirm.
State, ex rel. Stacy Anderson v. Stephen Taylor -
M2001-02193-COA-R3-CV View
Davidson
County - This case involves retroactive child support payments. The
child was born in 1990. A petition to establish paternity was filed in 1998.
The father's paternity was established and the juvenile court referee entered a
parentage order and set child support. The mother amended her petition to seek
child support retroactive to the date of birth. The juvenile court referee
awarded retroactive child support, but awarded only a portion of it to the
mother, with the remainder to be placed in an educational trust fund for the
benefit of the child. The juvenile court affirmed the decision of the juvenile
court referee. The mother appeals. We affirm in part and reverse in part,
finding no basis for the order that a portion of the retroactive support be
paid into a trust fund.
Ann Utter vs. Howell
H. Sherrod, Jr. - E2002-00848-COA-R3-CV View
Washington
County - Howell H. Sherrod, Jr. ("Defendant") and Jerry A. Mooneyhan
("Dr. Mooneyhan") were partners. Defendant sued Dr. Mooneyhan regarding one of
their partnership projects, Quality Dental Products. Dr. Mooneyhan died during
the pendency of that matter. That suit resulted in a jury verdict for Dr.
Mooneyhan that was affirmed on appeal. After the Quality Dental Products suit,
Defendant withheld Dr. Mooneyhan's portion of the rents from another
partnership property, the Bristol building. Ann Utter (formerly Mooneyhan) as
Executrix of the Estate of Jerry A. Mooneyhan, deceased ("Plaintiff"), sued
Defendant in chancery court seeking partition of the Bristol building and an
accounting as to another partnership business, World Tech Fibers. Defendant
claimed the chancery court lacked jurisdiction because he previously had filed
a claim against the estate in probate court, which, Defendant argued, caused
jurisdiction to be vested solely in the probate court. The Trial Court
determined it had jurisdiction over the partition action and issues relating
only to the Bristol building and World Tech Fibers. The Trial Court ordered and
then confirmed partition by sale, awarded Plaintiff a judgment for certain sums
related to the Bristol building and World Tech Fibers, and awarded Defendant a
winding up fee as the surviving partner. Defendant and Plaintiff each appeal.
We affirm in part, reverse in part, and remand.
Willis Edwards vs. Katherine Heckmann -
E2002-02292-COA-R3-CV View
Claiborne County - This appeal involves a boundary
line dispute between Willis Edwards and Wendall Edwards ("Plaintiffs") and
Katherine and Gregory Heckmann ("Defendants"). Plaintiffs and Defendants
presented proof from their respective surveyors regarding the appropriate
boundary line for the disputed area of land. The surveyors testified in detail
regarding the natural and artificial landmarks, etc., they relied upon in
arriving at their differing conclusions. The Trial Court concluded Defendants'
surveyor was accurate and entered judgment accordingly. Plaintiffs appeal. We
affirm.
Johann Wolmarans vs. Lifestyle
Furnishings - E2002-01783-COA-R3-CV View
Hamblen County
- Johann Roshe Wolmarans sues Lifestyle Furnishings, a/k/a Universal Furniture
Limited, Inc., for an injury he received on its premises. The complaint as
amended seeks damages under the theory of premises liability and also under the
Worker's Compensation Statute. The Trial Court found that the Plaintiff was an
independent contractor and dismissed his worker's compensation claim.
Thereafter, a jury trial was held as to the premises liability claims and the
jury found that the injury received by the Plaintiff was due entirely to his
own fault. The Plaintiff appeals, raising a host of issues which we find are
without merit and affirm the judgment of the Trial Court.
Prudential Botts & Associates vs. R & E
Properties - E2002-01827-COA-R3-CV View
Hamilton
County - In this case Prudential Botts & Associates Realtors,
Inc., a real estate agency, sues R & E Properties, LLC, and one of its
principals, Paula Ellis, and her father, James Runion, who advised and exerted
influence over his daughter in connection with the business of R & E. The
suit alleges that the Defendants violated the Tennessee Consumer Protection
Act, T.C.A. Title 47, Chapter 17, resulting in damages to Prudential because a
real estate transaction did not close as a result of misstatements made by the
individual Defendants, thereby causing Prudential to lose a commission it
otherwise would have received. After a plenary trial the Chancellor found in
favor of the Plaintiff and awarded it $147,000 in compensatory damages; $97,000
in attorney fees; and $45,000 in pre-judgment interest. We reverse and dismiss.
KHB Holdings vs. Mark Duncan - E2002-02062-COA-R3-CV View
Knox County - KHB Holdings, Inc. ("KHB") sued Mark A. Duncan
and Tina L. Duncan ("the Duncans"), alleging that the Duncans had terminated
KHB's contract to construct a residence for them. The trial court found that
KHB's corporate charter had been revoked two years prior to the date on which
KHB ostensibly contracted with the Duncans; denied KHB's motion to substitute
its sole shareholder, Kenneth H. Boyd ("Boyd"), for the corporation; and held
that KHB had failed to establish it was entitled to recover based upon a theory
of quantum meruit. We affirm.
Big Nine Productions vs. International
Creative Management - E2002-02452-COA-R3-CV View
Hamilton
County - DLLP, LLC, dba Big Nine Productions ("DLLP") sued
International Creative Management, Inc., aka ICM ("ICM") and Rock On Tours,
Inc. (collectively "the defendants") for damages and other relief arising out
of the alleged failure of the defendants to follow through with a concert
featuring the defendants' principal, a musical group known as the Moody Blues.
The defendants moved the court to compel arbitration under an alleged agreement
providing for arbitration in New York City. The trial court ordered
arbitration, but decreed that it would be conducted in Chattanooga. The
defendants appeal, arguing that the trial court was without authority to order
arbitration other than in New York City. By way of a separate issue, the
appellee, DLLP, contends that the trial court ordered "non-binding" arbitration
and that it erred in doing so in the absence of the parties' consent, said
consent being required by Tenn. Sup. Ct. R. 31, Sec. 3(d). It seeks an outright
reversal of the court's order. We hold that the trial court ordered "binding"
arbitration; that such arbitration was required under the terms of the parties'
agreement; and that the trial court erred in failing to order that the
arbitration would be conducted in New York City. Accordingly, we modify the
trial court's order. As modified, the order is affirmed.
Billy Culp v. Billie Grinder -
M2002-01512-COA-R3-CV View
Wayne County - The Culps brought suit against their neighbors,
the Grinders, for removal of a septic tank solid line located on their
property. The Culps argued that the ten foot easement reserved by the
subdivision for "utilities" did not include personal septic tanks. The trial
court dismissed the suit and found that the septic tank solid line placement
was a type of "utility" and was within the ten foot easement; further, the
court found no damages had been suffered by the Culps. We affirm the decision
of the trial court.
Synthia Hopkins v.
Victor Hopkins - M2002-2233-COA-R3-CV View
Montgomery
County - The trial court granted the wife an absolute divorce, and
fashioned a parenting plan that gave the husband primary physical custody of
their three children during the school year, with the wife to exercise primary
physical custody during the summer. The wife argues on appeal that the trial
court's plan gave the husband more custodial time than he had asked for, and
far more than he was entitled to. She also argues that the trial court erred in
its division of marital property, by giving the husband the benefit of an
offset for a purported loan from his parents. We reverse the trial court's
custody order, but affirm its property division.
Kathy Parker v. Bobby Parker, Jr. -
M2001-01453-COA-R3-CV View
Bedford County - The trial court granted the parties a
divorce, and awarded them joint custody of the three children of their
marriage, with the mother to exercise primary custody. The court's order
included a detailed visitation schedule, which did not mention Mother's Day.
After the children spent their first post-divorce Mother's Day with the father,
the mother moved the court to be granted Mother's Day visitation. The court
granted the motion, and assessed attorney fees against the father. The father
appeals the award of attorney fees. We affirm the trial court.
Ronnie Jones vs. George Stokely -
E2002-01593-COA-R3-CV View
Cocke County - This is a boundary line dispute. The
plaintiffs, Ronnie A. Jones and his wife, Vonda H. Jones ("the Jones"), appeal
the trial court's finding that the property line they share with their
neighbors, the defendants George Stokely and his wife, Sheila Y. Stokely ("the
Stokelys"), is as alleged in the Stokelys' counterclaim. The Jones contend: (1)
that the evidence preponderates against the trial court's determination of the
location of the boundary line; (2) that the trial court committed reversible
error when it admitted into evidence, as ancient records, certain maps and
documents; and (3) that the trial court abused its discretion when it refused
to grant the Jones a new trial based upon "newly discovered" evidence. We
affirm.
Carole Taylor vs. Andrea Smith
- E2002-01158-C0A-R3-CV View
Hamilton County - This is a personal injury action that arises
out of a two-vehicle accident. Carole J. Taylor and her husband, George Taylor,
sued the driver and owner of the uninsured vehicle that hit Mrs. Taylor's
vehicle in the rear. They also caused process to be served on their uninsured
motorist carrier. The jury returned a verdict in favor of Mrs. Taylor for
$10,000. It declined to award Mr. Taylor any damages on his loss of consortium
claim. The plaintiffs appeal, asserting that the jury's verdicts are not
supported by material evidence; that the trial court gave an incomplete jury
charge regarding aggravation of a pre-existing condition; and that the trial
court erred in failing to grant a new trial. We hold that the jury's verdicts
are not supported by material evidence. We vacate the trial court's judgment
and remand for a new trial.
Heather Carey v.
Margaret R. Johnson - M2002-00911-COA-R3-CV View
Marion County
- An employee of a utility company went to the private residence of a customer
to re-connect service which had been disconnected for non-payment where she was
violently attacked by the customer who hit her in the jaw with a flashlight,
beat her with car keys and threatened to kill her by throwing her off of the
mountain and, thereafter, show her dead carcass to her children. The utility
employee sued the customer for personal injuries, infliction of emotional
distress and punitive damages. The trial court granted judgment by default as
to liability against the defendant for the defendant's repeated failure to
attend her discovery deposition. The trial on damages was conducted without a
jury. The trial court awarded compensatory damages and punitive damages. We
affirm.
State v. All Parties with an
Interest in the Property /Map 158, Parcel 34 - M2002-01137-COA-R3-CV
View
Davidson
County - This is a case involving the proposed disinterment of Indian
burial grounds. The Appellants urge this Court to consider numerous issues.
Having determined that the only issue properly before this Court is the
propriety of the trial court's denial of Appellants' motion to intervene, we
affirm the trial court's denial of intervention.
Cases posted the week of 06/16/2003
Karen Chelton vs. Provident Companies -
E2002-02282-COA-R3-CV View
Hamilton County - In this appeal from the Chancery Court for
Hamilton County the Plaintiff/Appellant, Karen Chelton, asserts that the Trial
Court erred in granting the Defendants/Appellees, Provident Companies, Inc. and
Provident Life & Accident Insurance Company (hereinafter "Provident"),
summary judgment against her with regard to her cause of action for age
discrimination under the Tennessee Human Rights Act. We affirm the judgment of
the Trial Court in part, vacate in part and remand for a trial on the merits.
Costs of this appeal are adjudged equally against Ms. Chelton and Provident.
Sally Bishop vs. Scottt Milner -
E2002-01357-COA-R3-CV View
Anderson County - The Trial Court ruled the New Jersey Divorce
Court retained jurisdiction of the case where a New Jersey decree had been
enrolled in the Tennessee Court. Appellant argues the Trial Court failed to
make a record of conversation with the New Jersey Judge in accordance with
Tenn. Code Ann. §36-6-213. We vacate and remand.
In the Matter of: H.E.J and H.E.J -
M2002-00539-COA-R3-JV View
Williamson County - The trial court terminated the parental
rights of a father of twins on multiple grounds, including abandonment and the
commission of severe child abuse against the twin's mother while she was a
minor child residing in his home. The court also ordered him to pay $14,400 in
child support arrearages. We affirm the termination, but we reverse the child
support award.
Brenda Adams vs. Steven
Oliveira - E2002-00515-COA-R3-CV View
Blount County
- Steven A. Oliveira appeals an order of protection entered on December 18,
2001, by the General Sessions Court for Blount County in favor of Brenda L.
Adams, Mr. Oliveira's sister. An ex parte order had issued on November 26,
2001, and was served on December 6, 2001. The hearing was held on December 17.
We dismiss the appeal because we find it was not timely filed.
Chorost v. Chorost - M2000-00251-COA-R3-CV
View
Robertson
County - This appeal involves a protracted dispute in the Circuit
Court for Montgomery County arising from the dissolution of a ten-year marriage
of a psychiatrist and a social worker. The proceedings have been complicated by
the closing of the husband's private psychiatry practice and his inability to
obtain full-time professional employment. In its final divorce decree, the
trial court granted the wife the divorce and custody of the parties' children.
The trial court also divided the parties' marital estate taking into
consideration the husband's child support arrearage that had accumulated prior
to the trial. In addition, the trial court calculated the husband's prospective
child support obligation by imputing his income from full-time employment even
though he had been able to work only part-time. The husband filed an untimely
Tenn. R. Civ. P. 59 motion and later filed a motion to modify his child
support. Following another hearing, the trial court modified the husband's
child support obligation but again imputed income to the husband that he had
not actually earned. On this appeal, the husband takes issue with the decision
to award the wife the divorce, the division of the marital estate, the amount
of his child support obligation, and the decision to order him to pay $1,000 of
the wife's legal expenses. The husband's failure to file a timely Tenn. R. Civ.
P. 59 motion effectively limits the scope of this appeal to two issues –
the amount of his child support obligation after his motion to modify his child
support and the $1,000 payment for the wife's legal expenses. With regard to
these issues, we have determined that the trial court erred by imputing income
to the husband that he had not earned and that the trial court erred by
ordering the husband to pay $1,000 of the wife's legal expenses.
Cathy Cooke v. Randy Cooke - M2001-03026-COA-R3-CV
View
White
County - Wife sought divorce from Husband on the grounds of
irreconcilable differences and inappropriate marital conduct. Husband sought
divorce from Wife on identical grounds. After declaring the parties divorced,
the trial court awarded Wife 42% of the marital estate and awarded Husband 58%
of the marital estate. The trial court also awarded alimony in solido to Wife
in the amount of $30,000. Husband appeals both the valuation of the marital
estate and the award of alimony to Wife. Because we find that the evidence does
not preponderate against the trial court's valuation of the marital estate, and
the trial court did not abuse its discretion in awarding alimony to Wife, we
affirm the decision of the trial court.
David Mayberry v. Janilyn Mayberry -
M2002-00424-COA-R3-CV View
Rutherford County - This appeal involves a petition to modify
a parenting plan. The trial court found there to be a material and substantial
change in circumstances and that it was in the best interest of the minor
children that Mother be designated the primary residential custodian with full
decision making authority. Father was awarded more than standard visitation.
Father appeals and raises one issue on appeal. For the following reasons, we
affirm.
Oscar Bolton/Gail Craig vs. Human
Services - W2002-01754-COA-R3-CV View
Crockett
County - This case involves the denial of Medicaid benefits. In
February 1998, the petitioner entered a nursing home as a private pay
individual. In order to qualify for Medicaid benefits to pay for his nursing
home expenses, the petitioner asked his daughter to transfer his assets and
apply for Medicaid benefits on his behalf. Therefore, in April 1998, the
daughter transferred to relatives approximately $285,000 of her father's
assets. In May 2000, the daughter went to the defendant agency to apply for
Medicaid benefits for her father. She was told by the agency that if she
applied at that time the application would be denied because the April 1998
transfers were within the thirty-six (36) month "look-back" period under
Medicaid regulations. Later, in March 2001, the daughter again went to the
agency to apply for benefits effective April 2001. The agency again denied her
application based on the April 1998 transfers. On review, the agency upheld
that denial. The petitioner appealed the agency's decision to the trial court
below. The trial court reversed, finding insufficient evidence to uphold the
agency's decision. The State now appeals. We affirm, finding that substantial
and material evidence does not support the agency's conclusion that the
petitioner intended to apply for benefits prior to the expiration of the
thirty-six (36)-month "look-back" period.
Christian Yeubanks vs. Methodist LeBonheur -
W2001-02051-COA-R3-CV View
Shelby County - This is a procedurally complex medical
malpractice case. A child was injured in a car accident. She was taken by
helicopter to the hospital, where she died. The child's mother filed suit,
alleging liability on the part of three physicians, and vicarious liability on
the part of the hospital for the actions of the three physicians. She also
asserted that the second physician's medical group was liable for that
physician's actions. The complaint was later amended to include independent
allegations of liability against the hospital. The mother voluntarily dismissed
the claims against the first physician; however, the claim of liability against
the hospital for the actions of the first physician remained. Immediately
before the trial, the mother asserted that the hospital was liable for the
actions of a fourth physician. The trial court ruled that evidence regarding a
claim against the fourth physician was not admissible. Near the close of her
proof, the mother voluntarily dismissed her claims against the second physician
and his medical group. At the conclusion of the mother's proof, the trial court
granted motions for directed verdict for the claims based on the independent
actions of the hospital and for the claims against the hospital based on the
actions of the first physician. The trial court then denied a motion for
directed verdict on the claim of vicarious liability against the hospital for
the actions of the third physician. The trial court then heard a motion to
strike testimony related to claims against the third physician. Prior to a
ruling on the motion, the mother voluntarily dismissed the claims against the
third physician and against the hospital based on the actions of the third
physician. The trial court awarded costs against the mother and ordered that,
prior to refiling her case, the mother would be required to pay the costs. The
mother appeals, arguing that consideration of the motions for directed verdict
was premature, that the trial court's decision is not final and appealable,
that the trial court improperly excluded evidence on claims that the hospital
was liable for the actions of the fourth physician, that the trial court erred
in granting the motion for directed verdict for the independent claims of
negligence against the hospital, and that the trial court erred in awarding
costs against the mother and in requiring her to pay those costs prior to
refiling her case. We reverse the portion of the trial court's decision
requiring the mother to pay the awarded costs prior to refiling her case. The
remainder of the trial court's judgment is affirmed.
Nina Holland vs. City of Memphis -
W2002-01529-COA-R3-CV View
Shelby County - Plaintiff filed a suit alleging gender
discrimination and malicious harassment in violation of the Tennessee Human
Rights Act. The trial court awarded summary judgment to Defendants. We affirm.
Dale/Mary Bruno vs. Harold/Michelle
Rounds - W2002-00130-COA-R3-CV View
Fayette County
- This appeal arises from a dispute regarding a restrictive covenant in a
residential community. The trial court held that the building at issue was not
a barn or a storage building and thus was not in violation of the restrictive
covenant. The parties raise multiple issues on appeal. For the following
reasons, we affirm.
Larry Bullock vs.
Charles Spell - W2002-00053-COA-R3-CV View
Shelby
County - This appeal arises from a contract dispute. The trial court,
finding that Mr. Bullock had substantially complied with the contract
provisions and that he did not repudiate the contract, entered judgment in his
favor. The court awarded damages based on breach of contract, including
attorney fees and additional damages. The parties raise multiple issues on
appeal. For the following reasons, we affirm.
Cases posted the week of 06/09/2003
John Tallardy v. William Jones -
M2002-00447-COA-R3-CV View
Montgomery County - Homeowner hired a contractor to make
improvements to his residence. Disputes occurred during and following
construction. The contract contained an arbitration provision. The parties
agreed to arbitration, following which the arbitrator awarded damages against
the contractor in the amount of $76,465. Contractor refused to pay the award.
Accordingly, the homeowner filed this civil action to enforce the arbitration
award. Following a hearing before the Chancellor, of which there is no record
for this court to review, the Chancellor refused to confirm the arbitration
award. We affirm.
Reta Tompkins v. Kevin
Helton - M2002-01244-COA-R3-CV View
Putnam
County - The Plaintiffs, Reta J. Tompkins and her husband, Michael J.
Tompkins, brought this negligence action against the Defendant, Kevin W.
Helton, as the agent for the Defendant, B.K. Luna, individually and d/b/a Big
Foot Speedway, Inc., a/k/a Tennessee Motor Speedway. The Defendants filed a
motion for summary judgment with a copy of the Release and Waiver of Liability
Agreement signed by the Plaintiffs. The trial court granted partial summary
judgment, found that the release was valid as to the Defendants and released
the Defendants as to all causes of action based on ordinary negligence. We
affirm.
Image Outdoor Advertising v. CSX
- M2000-03207-COA-R3-CV View
Davidson County - These cases were consolidated pursuant to
Tenn. R. App. P. 16(b). Both involve a dispute regarding the permitting of
outdoor advertising billboards pursuant to the Tennessee Billboard Regulation
and Control Act of 1972. Tenn. Code Ann. § 54-21-101 et seq. Image Outdoor
Advertising, Inc. sought declaratory and injunctive relief against Lamar
Advertising Company, Infinity Outdoor, and CSX Transportation, Inc. following
the denial of its permit application by the Tennessee Department of
Transportation. The trial court found no private right of action exists to
enforce the Tennessee Billboard Act and that Image had failed to exhaust the
administrative remedy statutorily required as a prerequisite to its seeking
declaratory relief. We affirm the trial court's dismissal of Image's complaint
for failure to state a claim upon which relief could be granted. The other case
involves allegations that counsel for Image breached his fiduciary duty to
Lamar, a former client, by using confidential client information in forming
Image, a competitor sign business, and then representing Image. The trial court
dismissed Lamar's complaint for failure to state a claim upon which relief
could be granted. We affirm.
Donita Piper v.
Curtis Mize - M2002-00626-COA-R3-CV View
Montgomery
County - Plaintiffs in this case are citizens of Montgomery County.
Defendants, Paul Avallone, Wayne Gill, Curtis Mize and Yvonne Van Der Touw are
also citizens of Montgomery County who, in varying degrees, were alleged to be
involved in the printing and distribution of a newspaper known as The Rattler.
Defendant Avallone was the sole writer, publisher and editor of each issue of
The Rattler. Defendant Mize is a businessman who allowed copies of the October
5, 2000 edition of The Rattler to be placed on the counter at his place of
business for free distribution. The trial court granted summary judgment in
favor of Defendant Mize and finalized the judgment as to Mize under Tennessee
Rules of Civil Procedure 54.02. Plaintiffs appeal, and we affirm the judgment
of the trial court.
In the Matter of TBS.&
AKS.; Dept of Children's Srvc v. Nancy Shortt - M2002-02920-COA-R3-JV
View
Jackson County
- This case concerns the question of what constitutes reasonable efforts to
reunify dependent and neglected children with the birth parents prior to the
termination of parental rights. The trial court held that reasonable efforts
were made. This Court affirms the termination as to both parents' rights.
Triple Rock v. A.C. Rainey -
M2000-01115-COA-R3-CV View
Davidson County - Triple Rock LLC, d/b/a Commercial Ten, Perry
Dale, and Earl H. Young, Jr., sued A.C. Rainey and others for damages allegedly
resulting from the Defendants' misappropriation, conversion, or negligent
handling of moneys allegedly owed to the limited liability company. The trial
court granted partial summary judgment in favor of Defendant, Attorney Mark
Moore, on his Motion to Dismiss for failure to state a claim. Then, upon
Plaintiffs' Motion for Summary Judgment and the response of the remaining
Defendants thereto, the trial court entered summary judgment in favor of the
Defendants, A.C. Rainey, Miller Kimbrough, MGK Realty, and Mary Snyder. From
these two orders Plaintiffs appeal. We affirm.
Dept of Children's Services vs. RB -
E2002-01950-COA-R3-CV View
Carter County - Trial Court terminated father's parental
rights for failure to support child. On appeal, we affirm.
Cases posted the week of 06/02/2003
Brian Mayes v. Ronald LeMonte -
M2002-00625-COA-R3-CV View
Montgomery County - In this dog bite case, the trial court
awarded a meter reader $5000 in compensatory damages against the dog owner. The
dog owner claims on appeal that he was not negligent in handling his dog and
that the sitting trial judge was biased and prejudiced against him. We affirm.
Royal Insurance v. R & R Drywall -
M2002-00791-COA-R3-CV View
Davidson County - A workers' compensation insurance carrier
assessed a retrospective premium increase of over $60,000 against a contractor
after auditing the company's books and finding evidence that its subcontractors
employed more workers than the contractor had declared. The contractor filed an
administrative appeal of the assessment, arguing that the additional workers
were not actually employees of its subcontractors, but members of de facto
partnerships, and thus not covered under the contractor's policy. The
administrative law judge agreed, and found that the contractor was not liable
for the additional premium. The Chancery Court of Davidson County reversed the
administrative law judge, finding that the insurance company was entitled to
the additional premium, because it had borne the risk of liability to those
workers for on-the-job injuries. We affirm the Chancery Court.
Lola Taylor v. James Taylor -
M1999-02398-COA-R3-CV View
Rutherford County - This appeal arises from the dissolution of
a four-year marriage. The wife sought a divorce in the Circuit Court for
Rutherford County because of the husband's chronic drunkenness, non-support,
and threats of violence. Following a bench trial, the court granted the wife a
divorce on the ground of inappropriate marital conduct. The trial court also
divided the martial estate, gave the wife custody of the parties' four-year-old
daughter, and directed the husband to pay child support. On this appeal, the
husband asserts that the trial court erred in its classification and division
of the marital property, that the trial court awarded an excessive amount of
child support, and that the trial court erred by denying his request to place a
portion of his child support in an educational trust fund. For her part, the
wife requests an additional award to defray her legal expenses for this appeal.
We conclude that the trial court (1) correctly classified and divided the
marital estate, (2) properly sequestered a portion of the husband's assets to
assure the timely and regular payment of his child support, and (3) properly
declined to establish an educational trust fund for the child. We also conclude
that the trial court erred by failing to direct the trial court clerk to return
the remainder of the sequestered funds to the husband when his child support
obligation ceased. In addition, we decline to award the wife her legal expenses
for this appeal or to find that this appeal was frivolous.
Thomas & Associates v. Nashville and Davidson
County - M2001-00757-COA-R3-CV View
Davidson
County - This appeal involves a dispute between a road contractor and
the Tennessee Department of Transportation involving two construction projects
in the Nashville area. Following extensive construction delays attributed to
the relocation of utilities, the contractor filed claims based on negligence
and breach of contract with the Tennessee Division of Claims Administration
which were transferred to the Circuit Court for Davidson County. The trial
court granted the Department's motion for summary judgment and dismissed all
the contractor's claims. We have determined that the trial court correctly
dismissed the contractor's negligence claims but that the trial court erred by
denying the contractor's breach of contract claims. Accordingly, we vacate the
portion of the judgment dismissing the contractor's contract claims and remand
the case for further proceedings.
Alfred
Duncan v. Yvonne Qualls - M2002-00520-COA-R3-CV
View
Perry
County - This is a boundary line dispute. The plaintiffs filed suit
against the defendants to establish common boundary lines and to recover for
timber cut from their land. One of the defendants counterclaimed for damages to
his land. The trial court found that the defendants' proposed boundary line was
the correct boundary line, but granted the plaintiffs a perpetual easement over
the defendants' land. The trial court declined to award the plaintiffs
compensation for the cut timber. On appeal, one of the defendants argues that
the trial court erred in denying a motion to produce findings of facts, erred
in granting a perpetual easement across the defendants' land, and erred in
failing to grant the defendants damages. The plaintiffs assert that the trial
court erred in failing to award them damages and discretionary costs. We
reverse the award of a perpetual easement since the record does not indicate
that such relief was sought, and affirm the remainder of the trial court's
decision.
Franklin Iron & Metal
Recycling v. Worley Enterprises - M2002-2361-COA-R3-CV
View
Williamson
County - Defendants appeal the action of the trial court denying a
Tennessee Rule of Civil Procedure 59.04 motion seeking to set aside a previous
grant of summary judgment. We have determined that the trial court did not
abuse its discretion in denying the motion and therefore affirm the judgment.
Jack Jones v. Melvin Johnson -
M2002-01286-COA-R3-CV View
Davidson County - This suit arose from the deliberate
destruction of a walnut tree on the plaintiffs' property. The trial court
awarded the plaintiffs $5,500 in damages. The defendant argues on appeal that
the court used the wrong measure to calculate damages, and that the judgment
should not have exceeded $1,000. We affirm the trial court.
Old Republic Surety v. Morris Eshaghpour -
M2002-01890-COA-R3-CV View
Davidson County - A building contractor agreed to make certain
repairs to a residence and procured a performance bond as required by the Metro
Government. To obtain the bond the contractor was required to execute an
indemnity agreement favorably to the bonding company. The homeowner complained
of the quality of the contractor's workmanship, and the Codes Department of the
Metro. Government determined that certain remedial action should be taken by
the contractor in order to achieve compliance with the building code. The
contractor declined to do so, insisting that the problems complained of were
caused by the homeowner; whereupon, the bonding company engaged another
contractor to make the repairs, and filed this action against the initial
contractor for indemnification. The Circuit Court ruled in favor of the bonding
company. We affirm.
David Vaughn vs. Daimler
Chrysler - E2002-02163-COA-R3-CV View
Carter County
- David W. Vaughn sues Daimler Chrysler Corporation and Grindstaff, Inc.,
seeking damages in connection with his October 1994 purchase of a 1994 Chrysler
LHS automobile which was manufactured by Chrysler and sold to him by
Grindstaff. The complaint alleges violations of T.C.A. Title 55, Chapter 24,
commonly known as the "Lemon Law." The Trial Court sustained a motion for
summary judgment filed by the Defendants, resulting in this appeal, wherein Mr.
Vaughn contends there are disputed material facts rendering summary judgment
inappropriate. We affirm.
Bobby Helton vs.
James Cureton - E2002-02685-COA-R3-CV View
Cocke County
- Bobby G. Helton and Linda Helton ("Plaintiffs") sold land and a house to
James Earl Cureton and Cynthia Diane Cureton ("Defendants") for $47,000. The
parties signed a Contract for Sale of Land ("Contract"). The Contract required
monthly payments to be made over a twenty-one year period and was made subject
to Plaintiffs' existing mortgage on the property with Merchants and Planters
Bank. The Contract also required Defendants to obtain fire insurance, even
though Plaintiffs maintained fire insurance on the property as required by
their existing mortgage. Defendants did not have fire insurance when the house
later was destroyed by fire. Plaintiffs' insurance company paid a total of
$41,970, of which $12,664.73 was paid directly to Merchants and Planters Bank
in satisfaction of Plaintiffs' mortgage. Plaintiffs sued for the remaining
balance owed on the Contract after Defendants stopped making the monthly
payments. The Trial Court held that Defendants were entitled to a credit
against the purchase price for the insurance proceeds of $41,970, and entered
judgment accordingly. Plaintiffs appeal, claiming Defendants were not entitled
to a credit for the $12,664.73 paid in satisfaction of their mortgage. We
affirm.
Hazel Edde v. Gladys Edde -
M2002-01204-COA-R3-CV View
Davidson County - After a thirty-six year marriage, Wife filed
for divorce on the grounds of irreconcilable differences, inappropriate marital
conduct, and adultery. The trial court granted the divorce to Wife, divided the
marital property, and awarded Wife alimony in futuro in the amount of $425 per
month. Husband appeals. Because the evidence does not preponderate against the
trial court's decision, we affirm the decision of the trial court.
John Hollis v. Charles Doerflinger -
M2002-00222-COA-R3-CV View
Lawrence County - This is an insurance case. The mother and
the father were covered by an automobile insurance policy that excluded
coverage for certain family members who were residents of the same household as
the insureds. The mother was pregnant with a viable fetus. She was at fault in
an automobile accident in which she and the fetus died. On behalf of the
deceased fetus, the father filed a wrongful death action against the mother's
estate. On a motion for partial summary judgment, the father sought a
declaratory judgment to determine whether the insurance company was obligated
to provide coverage for the deceased fetus. The trial court found that the
insurance policy's family exclusion provision was ambiguous. Consequently, it
construed the policy in favor of the father, finding that the fetus was not
considered a resident of the father's household and that the insurance company
was required to provide coverage for the deceased fetus. After a trial, the
father was awarded damages plus prejudgment interest. The insurance company and
the administrator ad litem of the mother's estate appeal. The insurance company
argues that the fetus was excluded from coverage. The administrator ad litem of
the mother's estate asserts that the trial court erred in awarding prejudgment
interest. We reverse, finding that the fetus was a resident of the mother's
household, and consequently a resident of the father's household, and that the
insurance company was therefore not obligated to provide coverage for the
fetus. The award of prejudgment interest is reversed as well.
In RE: Z.J.S. and M.J.P. - M2002-0235-COA-R3-JV
View
In RE:
Z.J.S. and M.J.P. - M2002-0235-COA-R3-JV(Concur)
View
Dickson
County - This appeal involves the termination of parental rights with
regard to two children being raised by a single mother. The Tennessee
Department of Children's Services removed both children from their mother's
custody and placed them in foster care after she physically abused the older
child. The mother later pled guilty to child abuse and neglect of a child under
six years old and was placed on probation. She also agreed to permanency plans
with the Department intended to reunite her with her children. Approximately
twenty-one months later, the Department filed a petition in the Dickson County
Juvenile Court seeking to terminate the mother's parental rights, as well as
the parental rights of the non-resident fathers of the two children. Following
a bench trial, the juvenile court terminated the mother's parental rights, as
well as the parental rights of both fathers. The mother has appealed. We have
determined that the termination of the parental rights of the biological
fathers of both children must be vacated because of serious procedural
irregularities. We have also determined that the record contains clear and
convincing evidence (1) that the mother has failed to comply substantially with
the terms of her permanency plans, (2) that the conditions that led to the
children's removal persist and the mother has not demonstrated that she can
remedy them, and (3) that the children's interests will be best served by
terminating their mother's parental rights. Accordingly, we affirm the
termination of the biological mother's parental rights.
In the Matter of: R.L.H. - M2002-01179-COA-R3-JV
View
In the
Matter of: R.L.H. - M2002-01179-COA-R3-JV (Dissent)
View
Franklin County
- Department of Children's Services filed petition to terminate
parental rights of mother of abused, dependent and neglected minor child.
Department's termination petition was based on allegations of abandonment,
mother's failure to substantially comply with a permanency plan, the removal of
the child for at least six months with little likelihood that the conditions
causing removal would be remedied, and the best interests of the child.
Juvenile Court granted petition terminating mother's parental rights. Mother
appeals. For the following reasons, we affirm.
William Johnson dba Southern Secrets Bookstore v.
City of Clarksville - M2001-002273-COA-R3-CV View
Montgomery
County - Plaintiffs filed an action for declaratory judgment and
injunctive relief alleging that a City of Clarksville ordinance was
unconstitutionally vague and/or overbroad. The trial court consolidated
Plaintiffs' motion for temporary injunction with a hearing on the merits,
struck out small portions of the ordinance, and dismissed the complaint sua
sponte. We affirm in part, vacate the order dismissing the action, and remand
for further proceedings.
Randy Overstreet
v. Rebecca Overstreet - M2002-01178-COA-R3-CV View
Davidson County
- In this divorce Husband appeals the type and amount of alimony
awarded Wife at the end of a twenty-three year marriage. Because the evidence
does not preponderate against the trial court's findings and the trial court
acted within its discretion in applying relevant legal principles, we affirm.
Rogersville Water Commission vs. Mid
Hawkins County Utility District - E2002-01727-COA-R3-CV
View
Hawkins
County - Petition to alter Respondent Utility's boundary was sustained
by County Executive and Trial Court. On appeal, we vacate and remand with
instructions.
Charles Kimery vs. Unicoi
Insurance - E2002-00849-COA-R3-CV View
Unicoi County
- In a dispute over corporate ownership and management, the Trial Court awarded
Judgment for compensatory and punitive damages and attorneys fees. On appeal,
we affirm the compensatory damages and attorney fees award, but reverse
punitive damage award.
Edward/James/Leigh Hutchinson vs. Nancy Neuman &
James Day - W2001-02886-COA-R3-CV View
Fayette
County - This is a will construction case. The husband devised a life
estate in land to his wife, and at her death, to his devisees. The husband
devised other land in fee simple to his wife, and gave her the rest and residue
of his estate. The husband died in 1954 and the wife died in 1998. The
remaindermen under the husband's will argued that certain real property was
included in the wife's life estate and, thus, at her death, devolved to them.
The beneficiaries of the wife's will argued that the real property in question
was not included in the life estate or mentioned in the husband's will, and
thus the land went to the wife in fee simple by operation of the residue clause
in the husband's will and should now devolve to them. The trial court found
that the husband intended to include the land in question in the life estate to
the wife. Therefore, the land devolved to the husband's devisees. The
beneficiaries of the wife's estate appeal. We affirm.
Mary Saccomanno vs. Melvin Saccomanno -
W2002-01267-COA-R3-CV View
Hardin County - This is an appeal from a Final Order, granting
the parties a divorce and dividing the marital property. Wife appeals and
asserts that the division of marital property is inequitable. We affirm.
Cavalier Metal vs. Johnson Controls -
W2001-01057-COA-R3-CV View
Henderson County - Cavalier Metal Corporation sued Johnson Controls, Inc. for a
breach of contract. A jury awarded Cavalier $2,029,294.00 in damages. At its
motion for new trial, Johnson Controls, Inc. presented two juror affidavits
alleging that another juror who had worked at Johnson Controls, Inc. imparted
to the jury her knowledge of the very facts and issues at dispute in the trial.
JCI had challenged this juror for cause during voir dire, but its motion had
been denied. The trial court held the affidavits inadmissable under Tennessee
Rule of Evidence 606(b). For the following reasons, we reverse and remand for a
new trial.
Sandra Houston vs. Virty
Houston - W2002-02022-COA-R3-CV View
Madison County
- Wife filed complaint seeking absolute divorce from Husband and
primary custody of couple's minor children. Wife also filed motion for child
support pendente lite and motion for temporary restraining order. Husband filed
counterclaim for divorce on grounds of inappropriate marital conduct and, in
the alternative, irreconcilable differences. Trial court entered decree
declaring parties divorced, dividing marital property, and ordering Husband to
pay past and future child support obligations. Pursuant to the trial court's
decree, a permanent parenting plan was entered assigning Wife as custodial
parent of parties' minor children and designating Wife's home as the minor
children's primary residence. Husband appeals, challenging court's division of
marital property as inequitable, and asserting as error the trial court's
failure or refusal to hear minor children's custody preference despite court's
statement at hearing that children's preference would be controlling. We vacate
and remand.
Cases posted the week of 05/26/2003
Dept of Children's Svrcs. vs. R. G. T. -
E2002-02804-COA-R3-JV View
Greene County - The trial court terminated the parental rights
of R.G.T. ("Father") to his minor child, L.B.T. (DOB: September 20, 2000).
Father appeals, arguing that the evidence preponderates against the trial
court's dual findings, i.e., (1) that grounds exist for terminating his
parental rights and (2) that termination is in the best interest of L.B.T. We
affirm.
State ex rel. Jennifer Barnes vs.
Anthony Brandenburg - E2002-00994-COA-R3-CV View
Campbell
County - The State of Tennessee, on relation of Jennifer Kamille Bond
Barnes ("Mother"), filed a petition to increase the child support obligation of
Anthony Wayne Brandenburg ("Father"). The trial court increased Father's child
support obligation from $430 per month to $473 per month, a 10% increase.
Father appeals, contending that the trial court failed to properly apply the
provisions of the Child Support Guidelines ("the guidelines"). We affirm.
Susan Louise-Wright vs. Walter Wright -
E2002-01786-COA-R3-CV View
Knox County - This is a divorce case. Susan Louise
Cronin-Wright ("Wife") filed a motion for partial summary judgment, asking the
trial court to hold that Walter Curtis Wright, Jr. ("Husband"), "has no
equitable interest in the marital residence and never contributed to [its]
acquisition, preservation, or enhancement." The trial court granted the motion.
Husband appeals, contending that the residence is a marital asset of which he
is entitled to an equitable share. We affirm.
J.S. Haren vs. City of Cleveland -
E2002-01327-COA-R3-CV View
Bradley County - J. S. Haren Company ("Haren") filed a
complaint against The City of Cleveland ("the City") and the City's utility
board – the Cleveland Utilities ("CU") – as well as other defendants,
alleging, in general terms, that CU's failure to properly locate and, where
necessary, relocate its utility services and facilities had hampered Haren's
ability to do road improvements on a segment of U.S. Highway 11 in Bradley
County, to Haren's damage. It seeks $578,400 in damages plus prejudgment
interest. CU, along with four individuals, all of whom were sued as members of
CU's Board of Public Utilities, filed a motion to dismiss, in which the City
joined. The trial court granted the motion as to all of the filing defendants.
Haren appeals, contending that the factual allegations of the complaint make
out a cause of action against CU. We vacate the dismissal as to Haren's claim
against CU based upon the statutory remedy set forth in Tenn. Code Ann. §
54-5-854(g) (1998), affirm as to the remainder of the order of dismissal, and
remand for further proceedings.
Kimberly
Jenkins vs. Jody Jenkins- E2002-01979-COA-R3-CV
View
Hamilton
County - Kimberly Sue Jenkins (Mother) appeals the Trial Court's
decision to terminate her parental rights regarding her daughter (Child). In
the final decree of divorce between Mother and Jody Dale Jenkins (Father),
custody of Child was awarded to Child's paternal grandmother, Appellee E. Jean
Dabovich (Grandmother). Mother filed a petition requesting modification of the
visitation order set forth in the divorce decree. Grandmother filed a
counter-petition for termination of Mother's parental rights. The Trial Court
found that there had been no visitation between Mother and Child for more than
four years, and that Mother had never paid any child support as ordered in the
divorce decree. The Court found it in Child's best interest to terminate
Mother's parental rights. We affirm the judgment of the Trial Court.
Wanda Shadwick vs. F.H. Shoemaker -
E2002-01525-COA-R3-CV View
Scott County - Wanda Shadwick, individually, and as Executrix
of the Estate of her common-law husband, Kenneth Lee Phillips, sued F. H.
Shoemaker Distributors, Inc., and Floyd H. Shoemaker, II. The theory of the
lawsuit is that the Defendants were guilty of abuse of process in connection
with the sale of certain real estate and personal property owned by Kenneth Lee
Phillips at the time of his death to pay a claim of the Corporation against his
Estate. This claim, in the amount of $25,079.54, had been sustained by the
Probate Judge. We find that neither the Corporation nor Mr. Shoemaker are
liable for the misdeeds of Max Huff, the first attorney employed by them.
Having so found, we reverse the judgment both as to compensatory damages in the
amount of $156,000 which, incidentally, was higher than Ms. Shadwick's
testimony as to the wholesale value of the personal property, and of punitive
damages in the amount of $250,000, which was the amount of the ad damnum clause
in the complaint. Mr. Shoemaker filed a counter-complaint seeking to recover
the amount paid in delinquent taxes as to a house and lot he purchased at the
purported sale, as well as delinquent taxes owed thereon. On this issue the
jury found in favor of Ms. Shadwick and we affirm this determination.
Doug Long vs. T. Allen Pannell -
E2002-01792-COA-R3-CV View
Knox County - Doug Long ("Long") and T. Allen Pannell
("Pannell") began operating Volunteer Beauty Supply as a general partnership in
1996. Pannell claims Long orally agreed to be responsible for one-half of the
partnership debts. On June 3, 1997, a Certificate of Domestic Limited
Partnership was issued by the State for Volunteer Beauty Supply, L.P. The
business never made a profit and incurred rather substantial debts. In an
unsuccessful attempt to resolve a dispute over payment of these debts, Pannell
and Long deposited certain funds into a joint bank account. Long eventually
filed a declaratory judgment action seeking a determination that he was
entitled to over $100,000 remaining in this account. Pannell filed a
counterclaim seeking contribution from Long for partnership debts, but no
mention was made of the alleged oral agreement. The Trial Court refused to
grant Pannell relief for an alleged breach of oral contract because that claim
was not pled. The Trial Court did, however, award a judgment against Long for
$19,922.52 under general partnership contribution principles, after first
concluding Long was entitled to the funds in the joint account. Both parties
appeal. We affirm.
Tucker Corporation v.
City of Clarksville - M2002-00627-COA-R3-CV View
Montgomery
County - This is an appeal seeking to overturn the action of the trial
court in granting a motion for summary judgment in favor of the City of
Clarksville in a suit wherein the plaintiff challenged the validity of an
ordinance enacted by the defendant setting water and sewage connection fees
based on the square footage of the heated and cooled living space of the house
connected to those services. We affirm the judgment of the trial court.
Brian Bacardi v. Bd. of Registration in
Podiatry - M2002-00558-COA-R3-CV View
Davidson
County - This is an appeal from a final order, upholding the validity
of a settlement agreement. Appellant, a podiatrist, entered into a settlement
agreement with the Tennessee Board of Registration in Podiatry. The settlement
agreement contained a provision whereby Appellant voluntarily relinquished his
right to reapply for a podiatry license in Tennessee. Upon discovering that
loss of the right to apply for license barred participation in all federal
health care programs, Appellant sought to have the provision excised from the
agreement on the basis that the Board had no statutory authority to mandate a
bar on application for a license. The trial court upheld the validity of the
settlement agreement. We affirm.
Newell
Smith v. Brenda Smith - M2001-02231-COA-R3-CV View
Wilson County
- Wife filed petition for civil contempt against former Husband for failure to
pay alimony as set forth in the Martial Dissolution Agreement and final decree.
Husband responded, arguing that he did not have the ability to pay the alimony
as agreed. The trial court found Husband in willful contempt of the previous
order of the court due to his failure to pay the first two alimony installments
and ordered Husband incarcerated if he did not appeal or make those payments
within thirty days. Because the trial court found that Husband did not have the
ability to pay at the time of the contempt hearing, we vacate the order
incarcerating Husband if he does not pay.
Patricia Conley v. State - M2002-00813-COA-R3-CV
View
This is an appeal from the
Claims Commission. The Claims Commissioner dismissed both claims alleged by Ms.
Conley on the motion of the State. Additionally, the Claims Commissioner found
that the State is not a governmental entity for the purposes of Tennessee Code
Annotated section 20-1-119(g). For the following reasons, we reverse and
remand.
Eileen Dunloy v. Brian Dunloy -
M2000-03103-COA-R3-CV View
Eileen Dunloy v. Brian Dunloy -
M2000-03103-COA-R3-CV (Dissent) View
Marshall
County - This appeal involves a dispute over the interpretation of a
provision in a marital dissolution agreement dealing with the method of
distribution of the husband's defined benefit plan. The trial court interpreted
the provision as calling for deferred distribution pursuant to the coverture
fraction method. The husband appeals arguing that the net present value method,
rather than the deferred distribution method, is proper. We reverse the trial
court.
State ex rel Moore & Assoc. v.
Terrence Cobb - M2002-00504-COA-R3-CV View
Davidson County
- This is an appeal of a denial of a writ of mandamus. Moore & Associates
requested the lower court to require the Department of Codes Administration to
issue an occupancy permit for the Hilton Garden Inn pursuant to the
Metropolitan Code, Title 16, Chapter 36, Section 020(A). The Department of
Codes Administration refused to issue the occupancy permit for the building
because it felt that the landscape buffer yard did not comply with plans
submitted. The trial court agreed with the Department and found that the term
"building" includes the landscape buffer yard. For the following reasons, we
reverse.
Russell Wellington v. State -
M2002-01090-COA-R3-CV View
Davidson County - Inmate appeals the trial court's order
dismissing his lawsuit for failure to prosecute. Because the State had been
granted a transfer of this case from the Claims Commission for the purpose of
consolidating it with another case pending in the trial court, but took the
position in this appeal that no consolidation had occurred, we vacate the
dismissal and remand.
Cynthia Barnett v.
Barbara Behringer - M1999-01421-COA-R3-CV View
Davidson
County - This appeal involves a dispute between the owners of units in
a duplex arising out of the plans of one owner's tenants to build a
free-standing storage building on her lot. The owner who opposed the storage
building filed suit in the Chancery Court for Davidson County seeking an
injunction against violating restrictive covenants and zoning regulations, as
well as damages for trespass. The trial court granted the defendant owner's and
tenants' motion for summary judgment and dismissed the complaint. On this
appeal, the owner who objected to the storage building asserts that material
factual disputes should have prevented the trial court from granting the
summary judgment and that her neighbor and her neighbor's tenants had not
demonstrated that they were entitled to a judgment as a matter of law. We have
determined, as a matter of law, that the proposed storage building does not
violate the restrictive covenants or applicable zoning regulations and that the
plaintiff is not entitled to injunctive relief. Accordingly, we affirm the
summary judgment dismissing the complaint.
First Citizens Nat'l Bank for Will Wray vs. Janice Wray
- W2002-00525-COA-R3-CV View
Lake County - This case involves a trust. The decedent
established a trust in his will. His son-in-law and a bank were designated as
co-trustees. A parcel of property with a home was placed into the trust. The
trust allowed one of the beneficiaries, the decedent's grandson, and his wife
to live in the house at no charge. The beneficiary and his wife divorced, and
as part of their marital dissolution agreement, the beneficiary gave his
ex-wife his possessory interest in the home, at no charge. The
son-in-law/trustee died, leaving the bank as the sole trustee. The bank
required the ex-wife to begin paying rent; she declined. The bank then filed
the instant lawsuit against the ex-wife for past rent from the time they first
requested rent from her, and also a declaratory judgment permitting the bank to
sell the home. The trial court found that the trustees ratified the terms of
the MDA between the beneficiary and the ex-wife, allowing her to remain in the
home rent-free until the trust expired. The bank appeals. We reverse, finding
that the trustees could not ratify the MDA, a contract to which the trust was
not a party.
Cases posted the week of 05/19/2003
Wiley Hutcherson vs. Lauderdale Co. Zoning -
W2002-02322-COA-R3-CV View
Appellant appeals from a decision of the trial court affirming the Lauderdale
County Board of Zoning Appeals denial of an application to use certain property
as a sanitary landfill. The BZA and the trial court cited safety concerns as a
valid reason to deny Appellant's application. We find that, under the
provisions of the ordinance in question, the BZA acted beyond its authority in
considering such safety concerns. We therefore reverse the decision of the
trial court.
Watson & Son Landscaping vs.
Power Equip. - W2002-00136-COA-R3-CV View
Madison County
- This is a sales/UCC case. A landscaper contracted to purchase a used piece of
machinery, an excavator, from an equipment company. The excavator had a
defective hydraulic system. Under the terms of the sales contract, the
equipment company was to repair the defective hydraulic system. The equipment
company attempted to do so and delivered the excavator to the landscaper. The
hydraulic system, however, did not work properly and the equipment company was
unable to repair the excavator to the landscaper's satisfaction. The landscaper
then had the excavator repaired by a third party. The landscaper sued the
equipment company for failure to satisfy a condition precedent to the contract,
and for breach of contract. The trial court awarded actual damages for the
difference in value between the excavator bargained for and the excavator
actually received, as well as consequential damages. The equipment company
appeals. We modify the actual damages to the cost to repair the excavator, and
we reverse the award of consequential damages, finding that the proof of
consequential damages was too speculative to support such an award.
Chattanooga-Hamilton County Hospital Authority vs.
Ade Oni, M.D. - E2002-01758-COA-R3-CV View
Hamilton County
- Action on lease and trial court awarded judgment for rent and
expenses. On appeal, we affirm as modified.
Methodist Healthcare-Jackson Hospital v.
Jackson-Madison County General Hospital District - M2002-01655-COA-R3-CV
View
Davidson County - Respondent hospital filed petition for writ
of certiorari and writ of supersedeas in trial court and also filed a request
for contested case proceeding before administrative law judge, challenging
administrative agency's issuance of certificate of need to petitioner hospital.
Respondent challenged validity of certificate of need, citing the following
procedural errors: (1) T.C.A. § 68-11–108(e) did not prohibit agency
from reconsidering its initial vote in favor of certificate of need
application, and that decision to ultimately issue certificate was arbitrary,
capricious, and unlawful; and (2) participating agency member had a
disqualifying conflict of interest that required member to recuse himself prior
to vote on petitioner's certificate of need application. Trial court dismissed
respondent's petition on grounds that respondent failed to exhaust available
administrative remedies. Respondent appealed. While appeal was pending,
administrative law judge, in the contested case hearing, granted summary
judgment in favor of respondent, finding that T.C.A. § 68-11-108(e)
prohibits reconsideration of an agency's decision, but not a vote, and also
because a member had disqualifying conflict of interest that required him to
recuse himself from the vote and proceedings in accordance with agency's
guidelines. Respondent voluntarily dismissed appeal of trial court's denial of
certiorari petition, and court of appeals upheld dismissal. Petitioner appealed
administrative law judge's order. Trial court reversed, finding that the
administrative law judge was without jurisdiction to consider the same issues
pending on appeal before the appellate court, and that a genuine issue of fact
existed as to whether the respondent waived its right to object to the member's
conflict of interest. Respondent appeals. We vacate the order of the trial
court and remand.
Bob Kielbasa, et al v.
B & H Rentals - M2002-00129-COA-R3-CV View
Wilson County
- Plaintiffs appeal from the action of the trial court dismissing
their Complaint for Declaratory Judgment on the basis that it is barred by the
statute of limitations. A previous Petition for Writ of Certiorari under
Tennessee Code Annotated section 27-9-101 had been dismissed by the Chancery
Court of Wilson County because it was filed after the limitation period
provided by Tennessee Code Annotated section 27-9-102 had expired. That
dismissal was upheld on appeal and this suit for declaratory judgment followed.
The trial court correctly dismissed the complaint because of the expiration of
the statute of limitations.
Carroll Clabo
vs. Great American Resorts vs. Jim Falin - E2002-01008-COA-R3-CV
View
Sevier County
- Carroll Clabo and wife, Blanche Clabo; Dorothy Reed and husband,
Earl Reed; Edna Myers and husband, Jerry Myers; and Kate Clabo and husband,
Junior Clabo ("Plaintiffs") and Great American Resorts, Inc. ("Defendant") own
neighboring properties in Gatlinburg, Tennessee. Defendant developed its
property and during construction altered the natural drainage causing rainfall
to be diverted onto Plaintiffs' properties. The diverted water caused a
landslide that destroyed the access roadway to Plaintiffs' properties and
caused damage to Carroll and Blanche Clabo's house. The Trial Court found a
permanent nuisance existed and awarded all Plaintiffs damages for diminution in
value and $10,000 for the damage to Carroll and Blanche Clabo's house.
Defendant appeals claiming the Trial Court erred in finding a permanent
nuisance. We affirm.
Bruce Martin vs.
Beverly Martin - W2002-00819-COA-R3-CV View
Benton
County - This is a divorce case. Prior to their marriage, the husband
and the wife executed a prenuptial agreement. The agreement stated that upon
divorce, if jointly-held property were sold, each party would be credited his
or her share of separate property contributed to the purchase of the
jointly-held property, with the remaining funds divided according to each
party's ownership share. After the parties married, they purchased land with
the intention of converting it into a catfish farm. The husband and the wife
both contributed financially towards the purchase of the land. Both parties
worked full time. The husband used his machinery that he owned separately and
expended labor to convert the land to a catfish farm. The wife maintained their
home. The parties divorced. At the divorce hearing, the husband argued that,
under the terms of the prenuptial agreement, he should be credited for his
labor and the use of his heavy machinery to improve the farm land. The trial
court declined to do so, and credited the husband and the wife with their
respective financial contributions. The parties' personal property was divided
equally. The husband appeals, arguing that he should have been credited for his
labor and the use of his heavy machinery, and also disputing the division of
the personal property. The wife asserts that she should have received a larger
percentage of the proceeds from the sale of the property. We affirm.
Department of Children's Srvcs vs. B.L.K. &
E.C.C. - E2002-01724-COA-R3-JV View
Hamilton County - The State of
Tennessee, Department of Children's Services ("DCS") obtained temporary custody
of the five minor children of B.L.K. ("Mother") after Mother requested
assistance from DCS because of her inability to care for the children due to
her mental and financial condition. DCS later sought to terminate Mother's
parental rights. Custody of Mother's two oldest children was transferred to
their biological father. After a trial concerning Mother's parental rights to
her three youngest children, the Juvenile Court determined there were
sufficient grounds to terminate Mother's parental rights and that doing so was
in the best interests of the children. Mother appeals, claiming DCS failed to
prove by clear and convincing evidence that there were sufficient grounds to
terminate her parental rights. Mother also claims DCS failed to prove by clear
and convincing evidence that termination of her parental rights would be in the
best interests of the children. We affirm the Juvenile Court's judgment.
Gary Buck v. John Scalf - M2002-00620-COA-R3-CV
View
Davidson
County - This is an appeal from an order of the trial court granting a
motion for summary judgment in favor of Hartford Underwriter's Insurance
Company on the ground that plaintiff's uninsured motorist claim against
Hartford is barred by the one-year statute of limitations. We reverse the
judgment of the trial court and remand.
Randall Cook v. Frank Hanner - M2002-01083-COA-R3-CV
View
Robertson
County -This case involves allegations of an improper verdict form and
jury instructions. As Appellants failed to make timely objections concerning
these issues, and failed to file a motion for a new trial based on these
perceived irregularities, we affirm the judgment of the trial court.
Johnny Gant v. Suncom Wireless -
M2002-2574-COA-R3-CV View
Davidson County - Plaintiff filed pro se a civil warrant in
General Sessions Court in Davidson County against Defendant on November 27,
2001. The case was set for February 1, 2002 and at that time was dismissed by
the General Sessions Court. Pro se Plaintiff timely appealed to the Circuit
Court where Defendant filed a Motion to Dismiss. On August 30, 2002, the Motion
to Dismiss was granted and pro se Plaintiff appealed. We affirm the action of
the trial court.
Marcus Lewis v. Dept of
Correction - M2002-00608-COA-R3-CV View
Marcus Lewis v. Dept of Correction -
M2002-00608-COA-R3-CV (Concur) View
Davidson
County - This appeal involves a disciplinary proceeding at the South
Central Correctional Facility. After being sentenced to five days disciplinary
segregation for interfering with an officer's duties, the prisoner filed a
petition for a common-law writ of certiorari in the Chancery Court for Davidson
County. The trial court granted the Department of Correction's motion for
summary judgment and dismissed the petition. We affirm the dismissal of the
prisoner's petition, although on different grounds than those relied upon by
the trial court.
Jamie Robinson v. Donald
Sundquist - M2001-01491-COA-R3-CV View
Montgomery
County - The trial court dismissed this action for failure to state a
claim. We affirm.
Robert Smith v. Dept of
Correction - M2002-0812-COA-R3-CV View
Davidson
County - Plaintiff, an inmate with the Department of Corrections,
appeals the action of the trial court in dismissing his complaint pursuant to
Tennessee Code Annotated section 41-21-812. We affirm the judgment.
State v. Delinquent Taxpayers -
M2002-00718-COA-R3-CV View
Davidson County - This case involves the question of whether
the statutory right of redemption enjoyed by the owner of property sold to
recover delinquent taxes may be conveyed to a third party who may then exercise
that right and redeem the property. We affirm the decision of the trial court,
finding that the statutory right of redemption may be conveyed.
Condy Wilson vs. Charlsa Wilson -
E2002-01636-COA-R3-CV View
Campbell County - In this divorce case, the husband's issues
on appeal are the distribution of marital property and the allocation of
marital assets and debts made by the Trial Court. We affirm.
Cases posted the week of 05/12/2003
Nicole Buss-Flinn vs. James Michael Flinn -
E2002-01598-COA-R3-CV View
Campbell County - Nicole Marie Lusch Buss-Flinn ("Mother")
filed a Complaint for Divorce in the General Sessions Court for Campbell
County. In the complaint, Mother sought, inter alia, a divorce from James
Michael Flinn ("Father") as well as primary residential custody of the parties'
minor daughter. After Mother and daughter moved to Anderson County and Father
moved to Roane County, Father filed a request to have the case moved to
Anderson County pursuant to Tenn. Code Ann. § 36-5-3004. The Trial Court
denied Father's request for a transfer. After a trial on the merits, the Trial
Court granted Mother a divorce based on Father's inappropriate marital conduct
and designated Mother as the primary residential parent of the child. Father
appeals, claiming the Trial Court erred in not transferring the case to
Anderson County, in granting a divorce to Mother, and in not awarding him
coequal parenting time. We affirm.
Neil
Friedman vs. Lynn W. Brown - E2002-01615-COA-R3-CV
View
Neil Freidman vs. Lynn W. Brown -
E2002-01615-COA-R3-CV (Concur) View
Carter
County - Plaintiff sued Trial Judge for wrongful incarceration. Trial
Court held Judge was immune for actions taken against plaintiff in court. On
appeal, we affirm.
City of Knoxville vs.
Lumari Harshaw - E2002-02519-COA-R3-CV View
Knox County
- While on patrol, Officer Gerald Thomas George ("the Officer") heard a
"thumping bass noise" coming from a vehicle "at least 100 yards" away. The
Officer stopped the vehicle and issued a citation for violation of section 18-5
of the City of Knoxville noise ordinance ("Ordinance") to the driver, Lumari
Harshaw ("Defendant"). The Trial Court found Defendant violated the Ordinance.
Defendant appeals claiming the City of Knoxville ("City") failed to prove an
element of the charge, specifically that the noise was "audible to a person of
normal hearing sensitivity more than fifty (50) feet from [the] vehicle." We
affirm.
Wayne Bailiff v. State -
M2001-01936-COA-R3-CV View
Davidson County - In these consolidated appeals a wife appeals
the order of the Tennessee Claims Commission dismissing her claim for loss of
consortium because it was not brought as a part of her husband's claim, and the
husband and wife appeal the Davidson County Circuit Court's denial of their
motion to amend to add the wife's claim to the husband's action against the
State of Tennessee and other defendants. We reverse the action of the Claims
Commission and remand the wife's claim to the Circuit Court for trial.
Richard Humphrey v. Jeanetta Gammage -
M2002-00507-COA-R3-CV View
Davidson County - This appeal arose after the trial court
granted summary judgment for Jeanetta Gammage and Deborah Gammage against
Richard Humphrey in his petition to establish paternity of Karenda Raines.
Because the petitioner could not establish any issues of material facts as
grounds to proceed with his petition, we affirm the judgment of the trial
court.
J.C. Bradford v. Douglas Kitchen
- M2002-00576-COA-R3-CV View
Davidson County - The principal issue in this case is whether
the defendant, a member or partner of J.C. Bradford, Inc., waived his right to
the arbitration of his claim for damages against the defendants allegedly
resulting from various machinations involving fraud and deceit and the
violation of Federal and State Securities Laws, by joining a plaintiff class in
an action for damages in the U.S. District Court which was voluntarily
dismissed after pending four months. The Chancellor held that the defendant
filed the District Court action with full knowledge of the facts and thus made
an election of remedies, thereby waiving his right of arbitration. We disagree,
and reverse the judgment granting an injunction against arbitration.
Dorsey McGahee v. James Dukes -
M2002-00753-COA-R3-CV View
Davidson County - Two state prisoners placed in administrative
segregation petitioned the Chancery Court of Davidson County for a writ of
certiorari to review the action of the prison disciplinary board. The court
held that the petition did not state a claim for relief because administrative
segregation is not an atypical or significant hardship on the petitions in
relation to the ordinary incidents of prison life. We affirm.
Jeffrey Edmisten v. Kathy Edmisten -
M2001-00081-COA-R3-CV View
Williamson County - Wife sought separate maintenance and
support. After a two year separation during the pendency of Wife's petition,
Husband sought a divorce on the statutory ground of the separation. Wife
opposed the divorce. The trial court dismissed Husband's counter-complaint,
awarded Wife a legal separation, divided the marital property, and awarded
alimony in futuro to Wife. Husband appeals, challenging not only the trial
court's decision not to award a divorce, but also the division of marital
property and award of alimony to Wife. We affirm in part, reverse in part, and
modify the trial court's order.
John
Hessmer v. Rosa Hessmer - M2002-01024-COA-R3-CV
View
Wilson
County - This appeal involves a state prisoner who is seeking a
divorce from his wife. The prisoner filed a pro se divorce complaint in the
Circuit Court for Wilson County. After the prisoner failed to obtain service on
his wife, the trial court dismissed his complaint for failure to prosecute. On
this appeal, the prisoner takes issue with the dismissal of his complaint
because the trial court clerk failed to comply with a local court rule
regarding notice before dismissing a complaint for failure to prosecute. Even
though the trial court clerk may have failed to comply with the local rule, we
have determined that the trial court did not err by dismissing the prisoner's
divorce complaint for failure to prosecute.
John Hessmer v. Fernando Miranda -
M2001-02056-COA-R3-CV View
Davidson County - This appeal involves a state prisoner's
efforts to pursue medical malpractice and wrongful death claims arising from
the death of his mother. The prisoner filed a pro se complaint in the Circuit
Court for Davidson County against his mother's treating physician and a nurse.
The defendants filed a joint motion for summary judgment supported by their own
affidavits. The trial court granted the prisoner additional time to obtain
opposing affidavits and then dismissed the prisoner's complaint after he was
unable to do so. The prisoner complains on appeal that his incarceration
prevented him from obtaining the opposing affidavits and asserts that the trial
court erred by declining to appoint a "special master" to aid him in the
discovery process. We have determined that the prisoner was not entitled to the
assistance of a special master and that the trial court properly dismissed the
prisoner's complaint because he failed to demonstrate the existence of a
material factual dispute that would warrant a trial.
Cathy Lovett v. John Kelley -
M2002-01078-COA-R3-CV View
Maury County - A woman whose car was struck by another vehicle
brought suit against the driver of a van involved in the accident as well as
the driver's employer, claiming the collision aggravated her pre-existing back
injury. The defendants did not dispute liability, but claimed that the
plaintiff's injury was relatively minor. After a hearing, the trial court
entered a $100,000 judgment against the defendants. We reverse, because we
believe the trial court's award included damages for injuries that were not
proximately caused by the defendant's actions.
E.C. Mitchell v. Larry Mitchell -
M2001-01609-COA-R3-CV View
Davidson County - This case comes before the Court upon
consideration of the record and Appellant's brief pursuant to this Court's
order filed on April 3, 2002. Appellant, Evalina Casey Cheadle Mitchell,
hereinafter referred to as the Mother, seeks relief from the trial court's sua
sponte order requiring the parties to mediate certain issues, requiring the
minor children to attend periodic counseling and requiring the parties to
submit to counseling themselves. We reverse the trial court's order and remand
this case for a full hearing consistent with Tennessee Code Annotated section
36-6-401, et seq.
Paul Seibers v. Melissa
Cunnningham - M2002-02782-COA-R3-CV View
DeKalb
County - This appeal stems from a parental dispute over the custody of
a 16-year-old boy and a 12-year-old girl. Their father filed suit in the DeKalb
County Juvenile Court seeking to remove the children from their mother's
custody because they were dependent and neglected. The juvenile court granted
the father custody of his son but decided that his daughter should remain with
her maternal grandmother in the custody of the Department of Children's
Services. The father pursued a de novo appeal to the Circuit Court for DeKalb
County. After the children's mother moved to dismiss the appeal on the ground
that it was untimely, the father filed a Tenn. R. Civ. P. 60.02(1) motion
seeking relief from his untimely notice of appeal. The circuit court granted
the father the requested relief and, following a bench trial, granted the
father custody of both children. The mother asserts on this appeal that the
circuit court lacked authority to grant the father relief from his untimely
notice of appeal and, in the alternative, that the father was not entitled to
Tenn. R. Civ. P. 60.02(1) relief for excusable neglect. We have determined that
the trial court lacked subject matter jurisdiction to consider the father's
Tenn. R. Civ. P. 60.02(1) motion and, therefore, that the father's appeal to
the circuit court should have been dismissed because it was untimely.
In The Matter of : Estate of J.C. Qeener -
E2002-02311-COA-R3-CV View
Loudon County - Trial Court entered Judgments against Estate
for claimants on theories of resulting and/or constructive trusts, finding
decedent's intent from a draft copy of Will never executed. On appeal, we
affirm in part and reverse in part.
Cases posted the week of 05/05/2003
Mark Pirtle Chevrolet v. Celebration Nissan -
M2002-00554-COA-R3-CV View
Bedford County - This case involved claims and counter-claims
for breach of contract on the sale of an automobile dealership. After a
hearing, the trial court awarded the plaintiffs damages for most of their
claims. Since the defendants did not file a timely notice of appeal, we cannot
consider arguments about the court's Final Order. However, the plaintiff filed
a Rule 60 motion to clarify one paragraph of the Final Order. The trial court
granted the motion, and modified the order to specify that the defendant was to
pay the plaintiff $49,000 for certain cars that had been the subjects of a
dispute. The defendant appealed the trial court's action. We affirm.
Sammy Miller v. Board of Probation and Paroles -
M2002-00426-COA-R3-CV View
Davidson County - The Board of Paroles declined to parole a
prisoner in the custody of the Department of Correction. He claimed that the
Parole Board violated the constitutional prohibition against ex post facto laws
by following a different procedure to reach its decision than was in effect at
the time of his crime. The trial court dismissed the prisoner's complaint for
failure to state a claim for which relief can be granted. We affirm the trial
court.
Kelly Leopold v. William
Leopold - M1999-00602-COA-R3-CV View
Giles
County - This appeal involves the dissolution of a four-year marriage.
Following a bench trial, the Chancery Court for Giles County granted the wife a
divorce and custody of the children. On this appeal, the husband takes issue
with the trial court's decision to grant the wife the divorce and custody of
the children, as well as the amount of the child support award, the division of
the marital property and allocation of debts, and the award for the wife's
attorney's fees. The wife also asserts that the husband's appeal is frivolous.
We have determined that the parties should be declared divorced in accordance
with Tenn. Code Ann. § 36-4-129(b) (2001) and that the remainder of the
judgment should be affirmed. We have also determined that this appeal is not
frivolous.
Michael Sanders v. Diane
Sanders - M2001-02694-COA-R3-CV View
The Chancery Court of
Sumner County declared the parties divorced, divided the
marital property, and awarded the wife rehabilitative alimony. On appeal the
wife argues that since her conservator executed her counterclaim for divorce,
the court had no jurisdiction to award her a divorce. She also contests the
amount and duration of the alimony awarded to her. We affirm the divorce, but
we reverse the award for rehabilitative alimony and modify the award to alimony
in futuro. We remand for a hearing as to the amount.
Kay Wright v. 304 Broadway -
M2002-00952-COA-R3-CV View
The
Circuit Court of Davidson County granted summary judgment to
the owner of a building in a slip and fall case. We concur with the trial court
in its conclusion that the defendant did not owe the plaintiff a duty to make
its premises safer and that the plaintiff's own negligence was more than 50
percent of the cause of the accident. We affirm.
Carlene Malone vs. City of Knoxville -
E2002-00734-COA-R3-CV View
Knox County - In this appeal from the Chancery Court for Knox
County the Plaintiffs/Appellants, Carlene Malone and Nick Pavlis, contend that
the Trial Court erred in dismissing their suit against the Defendant/Appellee,
the City of Knoxville, upon grounds that they lacked proper standing to bring
suit against the City. We affirm the ruling of the Trial Court and the cause is
remanded for collection of costs below.
Cases posted the week of 04/28/2003
Alice Beason vs. C.A.Beason -
E2002-01425-COA-R3-CV View
Knox County - These appeals involve an equitable distribution
of the Tier II railroad retirement benefits of C.A. Beason ("Husband"). When
Alice Beason ("Wife") and Husband were divorced the first time in 1989, Wife
admittedly made no claim for any of Husband's Tier II benefits and was awarded
none. The parties then remarried in 1992 and were divorced for the second time
in 1996. A Qualified Domestic Relations Order ("QDRO") eventually was entered
in the second divorce which awarded Wife 100% of Husband's Tier II benefits.
After Husband became disabled, Wife began receiving all of his Tier II benefits
which had accumulated during Husband's 31 years of employment with the
railroad. Husband claims he then realized for the first time the true effect of
the QDRO and filed a Tenn. R. Civ. P. 60.02(5) motion seeking relief from the
judgment. Husband's Rule 60.02(5) motion was granted and the Trial Court
entered a new QDRO awarding Wife only 100% of the Tier II benefits which had
accrued during the second marriage. Wife then sought relief by Rule 60.02(5)
from the judgment entered in the first divorce in 1989, asking that Trial Court
to award her an equitable distribution of the Tier II benefits which had
accrued during the first marriage. Wife's motion was denied. Wife appeals both
decisions. On appeal, we affirm the Trial Court's decision to grant Husband
relief from the judgment in the second divorce, and we also affirm the Trial
Court's refusal to grant Wife relief from the judgment in the first divorce.
Ronnie Brown v. State -
M2002-01361-COA-R3-CV View
Claimants appeal the action of the Tennessee Claims Commission in dismissing
their claims based upon the expiration of the statute of limitations. We affirm
the action of the Claims Commission.
Willard Malone vs. Judy Malone -
E2002-01257-COA-R3-CV View
Washington County - In this post-divorce case, Willard Eugene
Malone (Husband) filed a motion requesting the Trial Court to decrease or
discontinue his alimony payments to Judy Mae Bishop Malone (Wife). The sole
basis for the motion was Husband's allegation that Wife "is cohabiting with a
third person . . .and is no longer in need of the alimony paid by [Husband]."
Wife denied that a reduction or elimination of alimony was appropriate,
alleging that the person who had lived with her did not provide her financial
support or contribution, and that he no longer lived in her trailer at the time
of her answer. Wife also alleged that she remained in need of the alimony
payments. The Trial Court found no substantial material change in circumstances
and ordered Husband to continue paying alimony in the amount of $1000 per
month. Husband appeals. We affirm the judgment of the Trial Court.
Keith & Wendy Downen vs. Michael Testa -
E2002-01320-COA-R3-CV View
Knox County - Trial Court granted social hosts summary
judgment on grounds that "consumption" of alcohol and not the furnishing was
proximate cause of death, pursuant to Tenn. Code Ann. § 57-10-101. We
affirm on that ground, but vacate in part as to voluntary assumption of duty.
Jeff Utley v. Department of Corrections
- M1999-01412-COA-R3-CV View
Davidson County - This appeal involves a dispute between a
prisoner and the Department of Correction regarding his punishment for two
unrelated disciplinary offenses. On both occasions, the Department extended the
prisoner's release eligibility date in accordance with versions of Tenn. Dep't
Corr. Policy Index No. 502.02 issued after he committed the crimes for which he
was incarcerated. The prisoner filed a complaint in the Chancery Court for
Davidson County asserting that the Department's application of the later
version of the policy to him violated the Ex Post Facto Clause of the United
States Constitution. The trial court granted the Department's Tenn. R. Civ. P.
12.02(6) motion, and the prisoner has appealed. We have determined that the
prisoner's complaint fails to state a colorable ex post facto claim under
either the federal or state constitution. Accordingly, we affirm the dismissal
of the prisoner's complaint.
Dept of Children's
Srvcs. vs. L.F. - E2002-02209-COA-R3-JV View
Sevier County -
The trial court terminated the parental rights of L.F. ("Mother") with respect
to her minor child, D.F. (DOB: January 28, 1994) ("the child"). Mother appeals,
essentially arguing that the evidence preponderates against the trial court's
dual findings, by clear and convincing evidence, (1) that statutory grounds for
termination exist and (2) that termination is in the best interest of the
child. We affirm.
William Williams vs.
Marla Barnes-Mason - E2002-01442-COA-R3-CV View
Hamblen
County - Primary residential custody was awarded to mother. Father
appealed. We affirm.
In Re: Adoption of
Samuel Downey, et.al. vs. Catherine Downey - E2002-01972-COA-R3-CV
View
Hamilton
County - The Trial Court approved adoption of three minor children by
sister of biological mother. Mother appealed, insisting Georgia Court decree
terminating her parental rights to the children was defective. We affirm.
Fern Keaton vs. Hancock County Bd of
Education - E2002-01778-COA-R3-CV View
This is a personal injury
action arising out of a workplace accident not covered by the Worker's
Compensation Law. Fern Keaton sued her employer, the Hancock County Board of
Education, alleging that it was negligent in failing to maintain the electrical
appliances in her kitchen work area in a safe working condition and that this
negligence was the proximate cause of the injuries and damages she sustained
when she was electrocuted while using one of the appliances. The trial court,
sitting without a jury, found the defendant guilty of 66-2/3% fault and
assigned the balance of the fault to the plaintiff. The plaintiff was awarded
$50,000 in damages, which amount represents the defendant's fault-based share
of the total damages. The defendant appeals, contending (1) that it is immune
from suit pursuant to Tenn. Code Ann. § 29-20-204 (2000); (2) that it was
not negligent; and (3) that any negligence it may have committed is outweighed
by that of the plaintiff's. By a separate issue, the plaintiff argues that the
trial court erred in assigning any fault to her. We modify the trial court's
judgment for the plaintiff. As modified, it is affirmed.
Jack Parks vs. Chuck Rich - E2002-02014-COA-R3-CV
View
Washington
County - Jack H. Parks sued Chuck Rich, the owner of an apartment
complex. Parks initially complained of a back injury resulting from his jumping
off a first floor balcony railing, and irritation to his body caused by a bug
spray applied in his apartment unit, both of which incidents occurred at the
complex. The trial court granted the defendant's motion for summary judgment.
The plaintiff appeals, contending that summary judgment is not appropriate with
respect to the bug spray matter and that the trial court erred with respect to
certain discovery matters. We affirm.
Randy Hensley v. Department of Corrections -
M2001-02721-COA-R3-CV View
Davidson County - An inmate who was allowed to commence and
proceed in forma pauperis in this litigation, but who was unsuccessful and had
costs taxed against him, appeals the trial court's denial of his motion to
quash execution on his trust fund account to collect the costs. We affirm.
Patrick Beaudreau vs. General Motors
Acceptance - E2002-00850-COA-R3-CV View
Sevier County
- Patrick Beaudreau ("Plaintiff") purchased a new car from Thomas-Hill Auto
Center ("Dealer"). In order to finance the purchase of the vehicle, Plaintiff
signed a retail installment sales contract ("Contract") at an annual percentage
rate ("APR") of 13.5%. The Contract listed Dealer as the creditor. General
Motors Acceptance Corporation ("GMAC") purchased the Contract from Dealer at a
rate of 11.25% ("buy rate"). GMAC paid Dealer the difference between the APR
and the buy rate ("dealer reserve"). Plaintiff sued GMAC claiming GMAC had
conspired with Dealer to defraud him by not revealing the dealer reserve and
the buy rate, or what Plaintiff claims is the "real interest rate." GMAC filed
a motion for summary judgment. The trial court found the business practices of
GMAC detailed in the record are not unlawful or fraudulent and granted summary
judgment. Plaintiff appeals, asserting that the trial court erred in its
treatment of Plaintiff's expert's affidavit and in granting summary judgment.
We vacate the grant of summary judgment and remand.
Dwight Hunt, et Rel. James W. Dotson vs. Carter
County - E2002-01339-COA-R3-CV View
Dwight Hunt,
et Rel. James W. Dotson vs. Carter County - E2002-01339-COA-R3-CV
(Concur/Dissent) View
Carter County - In this action to set aside a tax sale, the
trial court dismissed the plaintiff's complaint, finding that he did not have
standing or capacity to bring the action on behalf of the real parties in
interest. We affirm.
Chilhowee Trailer
Sales. vs. International Christian Churchl - E2002-00901-COA-R3-CV View
Blount County -
This is a suit to collect deficiencies on six retail installment contracts.
These deficiencies resulted following the repossession and sale of six motor
homes, part of the collateral for the obligations represented by the contracts.
The motor homes had been originally sold – ostensibly to an entity
identified as International Christian Church ("the church") – by Chilhowee
Trailer Sales, Inc ("the plaintiff"). The trial court held that Charles
Clendell Walker and his wife, Delores Walker ("the Walkers"), entered into a
civil conspiracy with the church and others to defraud the plaintiff in
connection with the sale of the motor homes – title to all of which had
been placed in the name of the church. The plaintiff was awarded a judgment,
including prejudgment interest, of $620,189.43, against the Walkers and the
church, jointly and severally. The Walkers and the church appeal, arguing that
(1) the trial court erred in finding that they had been involved in a civil
conspiracy; (2) the court erred in finding that Robert Charles Coburn, Sr.,
another defendant, acted as their agent so as to bind them to the retail
installment contracts; and (3) the award is speculative and amounts to a
windfall. We affirm.
In Re: Crystal
Michelle Moats - E2002-01635-COA-R3-JV View
Blount County
- This is a paternity case. Following DNA testing, the parties agreed that
Randy L. Garner ("Father") is the biological father of Crystal Michelle Moats
(DOB: August 13, 1985) ("the child"). The issues remaining before the trial
court were "current support, past due support, and medical payments." Following
a bench trial, the court addressed these issues. As pertinent to this appeal,
the trial court awarded Mother $1,000 as support for the child from her date of
birth to the date of filing of the paternity petition, i.e., September 18,
2000. Mother appeals, contending that the trial court erred in setting the
amount of retroactive support for the period prior to the filing of the
petition. We vacate the trial court's award of $1,000 and remand for further
proceedings.
Nannie Sneed v. The Estate
of Marie Bright Witherspoon, Deceased, James Morton, Senior, et al. -
M2002-00237-COA-R3-CV View
Rutherford County - This appeal involves a claim filed against
an estate for personal services rendered to a decedent. The lower court granted
the estate's motion to dismiss, finding that the claim was time barred, the
claimant had received compensation for her services, and there was no evidence
of "fraud, tort, deceit, or concealment." The parties raise multiple issues on
appeal. For the following reasons, we affirm
In Re: Estate of James H. Williams -
M2000-02434-COA-R3-CV View
Williamson County - This case began as four separate cases
which were consolidated. All four cases arose from the divorce of James
Hollister Williams and Kathyrn L. H. Williams, his untimely death, and the
probate and distribution of assets in his sizeable estate. The trial court
upheld the validity of the divorce by denying Ms. Williams relief under Tenn.
R. Civ. P. 60.02, awarded several annuities to Ms. Williams based on her status
as the named beneficiary, ordered her to pay the estate taxes resulting from
those annuities, and approved part of a claim filed by Ms. Williams against the
Estate, but denied part. We affirm the decisions of the trial court upholding
the validity of the divorce and awarding the annuities to Ms. Williams, but
vacate the order granting the Estate a judgment against Ms. Williams for the
estate taxes on the annuities. We also affirm in part and reverse in part the
decision of the trial court with respect to the claim against the Estate, and
hold that the entire claim should have been denied.
Cases posted the week of 04/21/2003
Ginger Sweeton v. Angela Orange, et al. -
M2002-00211-COA-R3-CV View
Grundy County - This is a dispute between two adjoining
property owners concerning the location of the common boundary between their
respective properties. A survey of the line indicates that the land in question
is property of Appellees. Appellant contends that, due to actions taken by her
predecessors in interest, she has claim to the property by virtue of adverse
possession. The trial court found that the land in question, with the exception
of certain buildings used for storage, is the property of Appellees. Appellant
appeals. We affirm.
Margaret Wightman vs.
Truman D. Clouse, et ux al - E2002-00318-COA-R3-CV View
Appellants' Petition for
Rehearing asserts that the Court erred in failing to realize that the
"unrebutted proof established that the appellants' predecessor in title
increased the burden of the easement after severance of title" by cutting a new
driveway into the old driveway. There can be no question but at the time the
servient estate was created, the easement was necessary for the enjoyment of
the land retained, because there was no other means of ingress and egress to
the main road. We respectfully deny the Petition for Rehearing.
Town of Collierville vs. Norfolk Railway -
W2001-02391-COA-R3-CV View
Shelby County - This is a condemnation case on appeal for the
second time. At three places at which roads were to cross over an existing
railroad track, the town filed a petition to condemn property in which the
railroad owned a right-of-way, in order to build railroad crossings. The trial
court initially found that the railroad could not challenge the town's right to
take the property and granted the town's motion for the writs of possession.
The railroad appealed for the first time. In the first appeal, this Court
reversed the trial court and found that the railroad was entitled to a hearing
to determine whether the railroad crossings would materially impair or
interfere with the railroad's prior use of the rights-of-way. On remand, the
trial court found that they would not, thus concluding that the town had the
right to condemn the property. The trial court then considered the damages for
the condemnation. The railroad sought incidental damages related to its
depreciation costs, as well as costs for its increased exposure to liability
because of the additional crossings. The trial court determined that the
railroad, as a matter of law, could not recover depreciation costs, and also
held that the railroad failed to produce proof to support an award of damages
for increased liability exposure. The railroad appeals. We affirm, finding that
the railroad can recover neither depreciation costs nor damages for increased
exposure to liability from the additional crossings.
State of TN Dept. of Transportation vs.
Tommie/Arlene Goodwin - W2002-00391-COA-R3-CV View
Gibson County -
This is a condemnation case. The State filed a petition to condemn a portion of
property owned by the defendants for the improvement of a highway. The
defendants did not challenge the State's right to condemn the property, but
they asserted that the amount proffered by the State as payment for the
property was inadequate. After a jury trial, the jury returned a verdict of
$13,500. The defendants moved for a new trial or, in the alternative, for an
additur. The trial court concluded that the jury's verdict did not adequately
compensate the defendants for either their financial loss or the loss to their
business resulting from the condemnation, so it granted the motion for an
additur, suggesting an additur of $12,000. The State accepted the additur under
protest and now appeals. We affirm, finding that the trial court's suggested
additur did not constitute an impermissible award for lost profits.
Suprena Brooks vs. Michael Brooks -
W2002-02150-COA-R3-CV View
Madison County - This is a pro se proceeding apparently
seeking property allegedly due plaintiffs pursuant to a decedent's will which
has not been probated and to award plaintiffs a money judgment against the
executor named in the will. After a nonjury trial, the trial court granted
judgment to defendant. Plaintiffs have appealed. We affirm.
Sharon Taylor vs. Douglas Butler & City Auto
Sales - W2002-01275-COA-R3-CV View
Shelby County -
This case involves the enforceability of an arbitration agreement. In June
1998, the plaintiff signed a contract to buy a used car from the defendant car
dealership for approximately $10,000. In the sales contract, the plaintiff
agreed to pay the dealership approximately $1,000 as a down payment on the car
and finance the remainder. The sales contract included an arbitration
provision. The plaintiff gave the dealership the down payment, and the
dealership gave the plaintiff possession of the car pending final approval of
the financing. Approximately a week later, the car dealership told the
plaintiff that her application for financing had been rejected, and asked her
to return the car. The plaintiff refused. The dealership then repossessed the
car and kept the down payment and other personal property that the plaintiff
had in the car. The plaintiff sued the dealership, claiming fraud, violation of
the Tennessee Consumer Protection Act, and conversion. The dealership filed a
motion to dismiss, arguing that the plaintiff's claims were subject to the
arbitration provision in the sales contract. The trial court dismissed the
plaintiff's lawsuit, and the plaintiff now appeals. We reverse, finding