The following Opinions are available for download:
Cases posted the week of 06/26/2006
Gilbert Waters, et al. v. Wesley Coker, M.D. - M204-01540-COA-R3-CV View
Davidson County - Plaintiff in medical malpractice action
appeals jury verdict alleging that the “dynamite charge” which
supplemented the original instruction after the jury was apparently deadlocked
violated Kersey v. State and its progeny. We agree and, because we find
the instruction affected the result, we reverse.
Chinon Developments v. Farnsworth Office Products, et al. - W2005-01821-COA-R3-CV View
Shelby County - This is an action for breach of contract to pay commissions for arranging a lease on commercial property. The brokerage firm insisted that Pam-Am, the tenant, maliciously induced the Landlord, not to pay additional commission. The Chancellor disagreed. We affirm the trial court.
HRP of Tennesseel vs. Dept of Employment Security - E2005-01176-COA-R3-CV View
The issue in this case is whether a nurse registry business that places
nurses at medical facilities on a temporary, as-needed basis, owes unemployment
insurance taxes on the nurses’ earnings. The determinative factor
is whether the nurses are independent contractors or employees pursuant
to T.C.A. 50-7-207. Unemployment insurance taxes were assessed against
the nurse registry business and paid under protest. The nurse registry
business petitioned the Tennessee Claims Commission for a refund. An administrative
law judge ruled that the nurses were independent contractors and ordered
a refund. The State of Tennessee, Department of Employment Security appealed.
After careful review, we hold that the nurses were independent contractors
and that the nurse registry business was not required to pay unemployment
insurance taxes related to services the nurses performed. Accordingly,
we affirm the judgment of the administrative law judge and remand.
Bonnie Reece vs. Linda Elliott, et al. - E2005-01782-COA-R3-CV View
Union County - Plaintiff’s Declaratory Judgment
suit to declare the antenuptial agreement invalid was dismissed by the
Trial Court which held the agreement enforceable. On appeal, we affirm.
Jason Mouser vs. Buckhead Construction, et al. - E2005-00967-COA-R3-CV View
Knox County - Jason Wayne Mouser (“the Employee”) worked for CDE Electrical Contracting Company (“the Subcontractor”). He was injured while engaged in the work of his employer’s subcontract with Buckhead Construction Co. (“the Principal Contractor”). The Employee sued the Principal Contractor in tort, alleging that the latter had negligently maintained the piece of equipment that allegedly caused the Employee’s injury. In addition, the Employee sued Knox-Tenn Rental & Sales Co. (“Knox-Tenn Rental”), the lessor of the equipment, alleging that it, too, had negligently maintained the subject equipment. The trial court granted summary judgment to the Principal Contractor, finding that, under the workers’ compensation statutory scheme, the Principal Contractor was the statutory employer of the Employee and, hence, could not be sued by him in tort. The trial court also dismissed the Employee’s
claim against Knox-Tenn Rental, holding that, as the lessor of the equipment,
Knox-Tenn Rental could not be held liable to the Employee for a claim
under the rubric of a product liability action. The Employee appeals.
We affirm.
John Howell, Jr. v. Rececca Howell - M2005-01262-COA-R3-CV View
Davidson County - This appeal concerns Husband’s efforts to reduce his alimony in futuro obligation following a twenty-two year marriage. Less than one year after the final decree of divorce, Husband’s job was eliminated and he sought alternative employment. However, Husband incurred a significant reduction in compensation at his new job and thus he petitioned the court for a modification of spousal support. Wife counter-petitioned for arrearage and contempt asserting that Husband had ceased paying alimony and child support. Upon finding that a substantial and material change in circumstances had occurred, the trial court reduced Husband’s alimony payment. However, the court also found Husband in civil contempt for willful failure to pay alimony and child support. The court denied Husband’s
request for a retroactive reduction in alimony and entered a judgment
against him for alimony arrears. Husband appealed. The judgment of the
trial court is affirmed in part and reversed in part and remanded.
Nancy Hunt v. Gary Hunt - M2005-00855-COA-R3-CV View
Davidson County - Husband appeals the action of the trial court asserting that the trial court erred in denying his pro se motion for a continuance after allowing his attorney to withdraw. He further asserts that the trial court erred in the disposition of marital property. The action of the trial court in denying a continuance and granting a divorce to Wife is affirmed. The action of the trial court on all other issues is reversed, and the cause remanded for further proceedings.
Donley D. Siddall, M.D. v. Board of Medical Examiners - M2004-02767-COA-R3-CV View
Davidson County - In this appeal, we are asked to determine
if the chancery court erred when it upheld the Tennessee Board of Medical
Examiners’ decision to revoke a physician’s medical license. On appeal, the physician asserts that there was not material and substantial evidence to support the charges against him (1) because the Tennessee Board of Medical Examiners failed to present expert medical testimony in compliance with section 29-26-115 of the Tennessee Code to establish a standard of care as to the gross malpractice and unprofessional, dishonorable, or unethical conduct charges, (2) because the Tennessee Board of Medical Examiners failed to articulate a professional standard of care for the sound medical practices exception to rule 0880-2-.14(7) of the Official Compilation of Rules & Regulations of the State of Tennessee, and (3) that he did not provide sound medical practices under the express exceptions under rule 0880-2-.14(7) of the Official Compilation of Rules & Regulations
of the State of Tennessee. We affirm.
Davalon Higgins v. Quenton White, et al. - M2004-00412-COA-R3-CV View
Davidson County - A prisoner in the custody of the Department
of Correction was turned down for work release because an entry in his
correctional record indicated that he was a member of a criminal gang.
He subsequently filed a complaint under 42 U.S.C. § 1983 contending that it was a violation of his civil rights to label him as a gang member without a hearing and without giving him any opportunity to challenge the classification. He claimed that he had never been a member of any such group, and that he did not even know until his work release application was rejected that he had been stigmatized by being mistakenly labeled with a gang affiliation. The trial court dismissed the prisoner’s complaint, holding that he did not have a constitutional right to any particular security classification. We agree with the court’s
determination of the constitutional question, but reverse the dismissal
because we believe that the trial court had the authority to review his
claim under the common law writ of certiorari.
Industrial Products Group., et al. v. Aztech Industrial Supply, et al. - M2005-00403-COA-R3-CV View
Davidson County- The trial court summarily dismissed
the plaintiffs’ legal malpractice action against the law firm after
finding no violations of the standard of care, that no causal link existed
between the alleged negligent acts and omissions of the law firm and the
harm suffered, and the action was barred by the statute of limitations.
Finding no genuine dispute of material facts exists and the law firm is
entitled to summary judgment as a matter of law, we affirm.
Betty C. Brown v. Gary A. Hugo - W2005-01356-COA-R3-CV View
Shelby County - Betty Brown (“Plaintiff”) was involved in an automobile accident where her car was struck in the rear by the vehicle driven by Gary Hugo (“Defendant”). Plaintiff subsequently filed suit against Defendant in order to recover medical expenses for injuries Plaintiff claims to have incurred as a result of the accident along with other damages. At trial, the jury found that Plaintiff was not entitled to recover from Defendant. Plaintiff appeals arguing that the jury’s
verdict was unsupported by competent and credible material evidence. For
the reasons set forth below, we affirm.
State, ex rel. Donnie Diane Little v. James Gearin - W2005-01844-COA-R3-JV View
Gibson County - This appeal involves a retroactive modification
of a child support order. The legal custodian of the child at issue received
state benefits on behalf of the child. The State, on behalf of the custodian,
filed a petition against the father to set child support. In August 2000,
the trial court granted the petition, set child support, and entered an
order establishing that the father owed a child support arrearage of $14,000
as of the date of the order. This order was not appealed. Years later,
the father filed a petition for custody of the child. After a hearing,
the trial court granted him custody of the child and terminated his future
child support obligation. The trial court’s order also gave the father a $2,962 “credit” toward
the arrearage established in the August 2000 order. The State filed a
motion to alter or amend, arguing that the trial court was not permitted
to retroactively modify the arrearage established in the earlier order.
This motion was denied. The State now appeals. We reverse, finding that
the trial court erred in retroactively modifying the arrearage amount
set out in the original order.
Herman S. Phillips v. Department of Correction - W2005-02187-COA-R3-CV View
Lauderdale County - This is a petition for a common law
writ of certiorari arising out of prison disciplinary proceedings. The
prison disciplinary board charged the petitioner with money laundering,
a state offense. After a hearing, he was found guilty of the charge and
sentenced to punitive and administrative segregation. He filed this petition
for a common law writ of certiorari, challenging the board’s disciplinary decision. The writ was granted, and the record of the disciplinary proceedings was sent to the trial court for review. Subsequently, the petitioner filed a motion for summary judgment. The respondent filed a notice that it did not intend to respond to the motion, because the record had already been sent to the trial court for review. The trial court dismissed the petition on the merits without first addressing the petitioner’s motion for summary judgment. The petitioner now appeals, arguing that the trial court was required to decide his motion for summary judgment before addressing the merits of his petition. We affirm, concluding that, under the circumstances, the trial court was under no obligation to address the petitioner’s
motion for summary judgment prior to dismissing the action.
In Re: C. B. W. - M2005-01817-COA-R3-PT View
Rutherford County - The maternal grandmother of a four
year old girl filed a petition to terminate the parental rights of the
child’s young mother on the ground of abandonment. The trial court found that abandonment had been proven by clear and convincing evidence, because the mother had failed to visit with the child for at least four months prior to the filing of the termination petition. However, the evidence also showed that during the time between the filing of the petition and its hearing, the mother turned her life around and also established a warm relationship with her daughter. Nonetheless, the trial court granted the petition, declaring it to be in the child’s best interest that the mother’s
rights be terminated. We reverse because we do not find clear and convincing
evidence in the record that it is in the best interest of the child to
sever the parental relationship.
Garry Rector v. DACCO, Inc. - M2005-00294-COA-R9-CV View
Putnam County - This appeal involves the application
of the saving statutes in Tenn. Code Ann. § 28-1-105(a) (2000) and Tenn. Code Ann. § 28-1-115 (2000) to claims brought under the Tennessee Human Rights Act. An employee initially filed a complaint in the United States District Court asserting claims under both federal and state law. The employee voluntarily dismissed his complaint but later filed a second identical complaint in the District Court. The District Court dismissed the federal claims in the employee’s second complaint and declined to exercise supplemental jurisdiction over the employee’s state claims. Thereafter, the employee filed a complaint in the Circuit Court for Putnam County asserting only state claims. The employer moved to dismiss the complaint on the grounds that Tennessee’s saving statutes do not apply to claims under the Tennessee Human Rights Act and, even if they do, that state law prevented the employee from filing suit after the expiration of the one-year saving period. The trial court denied the employer’s motion to dismiss but permitted the employer to apply for a Tenn. R. App. P. 9 appeal. We granted the interlocutory appeal and have now determined that the trial court erred by concluding that the employee’s
complaint was timely filed.
Basil Marceaux, I vs. Tim Thompson, et al - E2004-01390-COA-R3-CV View
Cumberland County - In this case, the plaintiff argues
that the trial court erred in dismissing his complaint against various
Cumberland County officials in association with the conduct of routine
traffic stops and against various media defendants for failure to inform
the public of the occurrence of these stops and of the alleged illegality
of same. The trial court entered orders dismissing the plaintiff’s complaint upon motions to dismiss and motion for summary judgment. Upon our finding that the plaintiff’s
complaint failed to state a claim upon which relief may be granted, we
affirm the judgments of the trial court.
Tracye Simpson, et al vs. Ralph Simpson - E2005-01725-COA-R3-CV View
(Concur) - View
Hamilton County - This appeal involves child support
arrearages incurred by Ralph Edward Simpson (“Father”) over the course of many years. Following a trial, the Trial Court concluded that certain payments made directly to the child were gratuitous and should not count as a credit against Father’s child support obligation. The Trial Court also concluded that various payments made by Father to third parties for expenses incurred on the child’s behalf and which were made as expressly directed by Tracye Jenae Simpson (“Mother”) also should not count as credits against Father’s child support obligation. We affirm the Trial Court’s
conclusion with respect to the money sent directly to the child. However,
we conclude that the Trial Court erred in its conclusion that Father should
not be given a credit for payments made to third parties for expenses
related to the child and which were made by Father in accordance with
the express directives of Mother. The judgment of the Trial Court is,
therefore, affirmed in part, reversed in part, and remanded for further
proceedings consistent with this Opinion.
Suntrust Bank vs. Sheep Inc., & Marilyn Powell - E2005-02377-COA-R3-CV View
Knox County - The Trial Court dismissed the case on the grounds the process issued more than one year after the issuance of the previous process was invalid. On appeal, we vacate.
Donald Mitchell vs. Anthony & Karey Keck, & Carl Carruba, Jr. - E2005-02381-COA-R3-CV View
Blount County - Plaintiff asked the Court to declare
right of way over defendants’ properties. The Trial Court refused.
On appeal, we affirm.
Ennix Hairston, et al. v. Lillian B. Newsom - W2005-01939-COA-R3-CV View
Madison County - This appeal stems from a negligence
action resulting from an automobile accident. A husband and wife filed
suit against the defendant alleging personal injury and property damage
resulting from the defendant’s alleged negligence that caused the automobile accident involving the wife and the defendant. In addition to the wife’s claims, the husband brought claims against the defendant for loss of consortium and loss of services. Additionally, the wife’s uninsured motorist insurance carrier was served but unnamed. Both Newsom and the uninsured motorist insurance carrier filed Motions to Exclude All Medical Proof of Plaintiff and Motion for Summary Judgment. The circuit court granted the defendant’s and the unnamed but served uninsured motorist insurance carrier’s Motions to Exclude All Medical Proof of Plaintiff and Motion for Summary Judgment. The order adjudicated the wife’s personal injury claims only. On appeal, the plaintiffs assert that the circuit court erred when it granted the defendant’s and the unnamed but served uninsured motorist insurance carrier’s Motions to Exclude All Medical Proof of Plaintiff and Motion for Summary Judgment. However, because we find that the circuit court failed to execute a final order disposing of all of the plaintiffs’ causes
of action, we dismiss the appeal for lack of subject matter jurisdiction
pursuant to rule 3(a) of the Tennessee Rules of Appellate Procedure.
In Re: Lamont B., II - M2004-02027-COA-R3-JV View
Davidson County - This case concerns an initial custody
determination of a four-year-old child. The child’s parents ended their relationship before he was born. The child’s mother was his sole caregiver during the first four months of his life, then the child’s parents shared parenting responsibilities equally for the next eighteen months. The father eventually filed a petition in the Davidson County Juvenile Court seeking to be designated as the child’s primary residential parent. Following a bench trial, the juvenile court designated the father to be the child’s
primary residential parent after finding him to be comparatively more
fit. The mother has appealed. We affirm the juvenile court.
Cases posted the week of 06/19/2006
State ex rel. Amy Smith vs. Christopher Via - E2004-02985-COA-R3-CV View
Anderson County - The State of Tennessee (the “State”) filed this lawsuit on behalf of Amy W. Smith (“Mother”) against Christopher Via (“Father”) seeking current child support payments as well as arrearages. After a DNA test confirmed that Father was the biological father of the child, the Juvenile Court ordered Father to begin making current child support payments. This appeal involves the Juvenile Court’s determination that Father also should be required to pay child support arrearages in the amount of $34,963 dating back to the child’s birth in April of 1992. Following a trial, the Juvenile Court credited the testimony of Mother over the testimony of Father in determining when Father knew of the existence of the child and that Father should be required to pay arrearages pursuant to Tenn. Code Ann. § 36-2-311(a)(11). Father appeals, and we affirm.
Barbara Allison vs. Anthony Hagan - E2005-02306-COA-R3-CV View
Cumberland County - Barbara Ann Allison (“Wife”) and Anthony Ensley Hagan (“Husband”) entered into a Marital Dissolution Agreement (“MDA”) prior to their divorce in 1991. As part of the marital property settlement, the MDA required Husband to pay Wife, in addition to her one-half share in the marital residence, a lump sum payment of $47,000 when the marital residence was sold. Husband also agreed to pay child support in the amount of $818.79 per month. Several years later, Husband reduced his child support payment to $500 per month when the parties’ oldest child became emancipated. When the marital residence sold in 2004, Husband refused to pay Wife the $47,000, asserting that Wife’s claim to the $47,000 was barred by the applicable statute of limitations. Wife filed a Petition for Contempt claiming Husband violated the MDA when he unilaterally reduced his child support payment and when he refused to pay her the $47,000. Following a trial, the Trial Court determined that Husband violated the MDA by unilaterally reducing his child support payment and by refusing to pay Wife the balance of the $47,000. The Trial Court also entered judgment for Wife for her attorney fees incurred in enforcing the MDA. Husband appeals. We affirm the judgment of the Trial Court.
Donald Shea Smith v. Teddy W. Cherry, et al. - M2005-01168-COA-R3-CV View
Montgomery County - Plaintiff was awarded damages of $300,000 for injuries sustained in a vehicular accident. His vehicle was struck by a motorist pursued by a City of Clarksville police officer. The trial court apportioned 30% of the damages against the City upon a finding the officer’s decision to commence or continue his pursuit of the suspect was negligent. The City appeals contending the officer was not negligent and his conduct was not a cause in fact of the accident or plaintiff’s injuries. We affirm.
Timothy Wade Keyt v. Nanci Suzanne Keyt - M2005-00447-COA-R3-CV View
Putnam County - This appeal involves the financial aspects of the dissolution of a twelve-year marriage. The trial court granted Wife a divorce and awarded her custody of the parties’ minor child, alimony in futuro, child support and an equitable division of the marital estate which included the appreciation in Husband’s interest in the family-owned trucking corporation. On appeal, Husband claims that the trial court erred in (1) determining the value of the appreciation of his interest in the corporation; (2) classifying the appreciation of his interest in the corporation as marital property; (3) the type and amount of alimony awarded to Wife; and (4) the amount of child support awarded to Wife. Wife also claims that the trial court erred in the valuation of the appreciation of Husband’s interest in the corporation and that she should have been awarded attorney’s fees. As herein modified, the judgment of the trial court is affirmed.
AmSouth Bank v. Trailer Source, et al. - M2005-01189-COA-R3-CV View
Davidson County - Hyundai Translead, an intervener in AmSouth’s claim on a security agreement with debtor Trailer Source, appeals from the trial court’s grant of summary judgment against it. Hyundai challenges the trial court’s finding as a matter of law that Hyundai lacked standing to dispute the commercial reasonableness of a sale of the debtor’s property. We reverse the grant of summary judgment and remand for further proceedings.
Lee's Home Center v. Bobby Morris, et al. - M2004-02158-COA-R3-CV View
Robertson County - This appeal involves a dispute between a contractor and a material supplier regarding engineered wood I-joists. The contractor refused to pay for the I-joists because he believed they contributed to a structural failure in a house he had built. The supplier filed suit against the contractor in the Chancery Court for Robertson County. The contractor filed a counterclaim for breach of implied warranty of fitness for a particular purpose. The supplier moved for summary judgment on its claim and on the contractor’s counterclaim. The trial court granted the supplier’s motion and entered a $22,917.91 judgment for the supplier. The contractor takes issue on this appeal only with the dismissal of its counterclaim. We have determined that the trial court erred by dismissing the contractor’s counterclaim because the record contains genuine, material disputes with regard to the facts relevant to the counterclaim.
Fides Nzirubusa v. United Imports, et al. - M2004-01884-COA-R3-CV View
Davidson County - The buyer of a used car sued the dealer who sold it to her, alleging that after she paid off the car loan in full, the seller refused to release his lien and give her clear title to the vehicle unless she paid him additional money and persuaded her friends to buy cars from him. For his part, the dealer claimed that the buyer still owed on the car loan, and he denied the other allegations. He also argued that the buyer’s claim under the Tennessee Consumer Protection Act, Tenn. Code Ann. § 47-18-101 et seq, was time-barred because it was filed more than five years after she bought the car. After a full hearing on the merits, the trial court ruled for the buyer and held that the seller’s refusal to release his lien amounted to a continuing violation of the Act which prevented the running of the statute of limitations. The court awarded the buyer treble damages and attorney fees, both of which are authorized by the Tennessee Consumer Protection Act. We affirm.
Betty Potter, et al vs. Ford Motor Co. - E2005-01578-COA-R3-CV View
(Concur) - View
Cumberland County - While traveling on a rain-slick road at a moderate rate of speed, Betty Potter lost control of her 1997 Ford Escort which spun around and crashed into a tree. Her seat back collapsed into the rear seat and her spinal cord was severed. Betty Potter was rendered a paraplegic. She and her husband sued Ford Motor Company (“Ford”) for the enhanced injuries Ms. Potter received as a result of the collapse of her seat back. The jury found Ford to be 70% at fault, Ms. Potter to be 30% at fault, and determined Ms. Potter’s compensatory damages to be ten million dollars. Judgment was entered for Ms. Potter in the amount of seven million dollars. The primary issues Ford raises on this appeal are (1) whether the trial court erred in refusing to grant Ford a judgment notwithstanding the verdict; and (2) whether the trial court erred in refusing to instruct the jury on the doctrine of intervening cause. We hold that Ms. Potter presented material evidence from which the jury could reasonably conclude that the Ford Escort was defective, and that the trial court correctly found the intervening cause doctrine inapplicable in a case such as this one, where the alleged intervening cause is the negligent conduct of the plaintiff. We therefore affirm the judgment of the trial court.
RJS & TLPB vs. Dept of Children's Services, In Re: ETB - E2006-00240-COA-R3-PT View
Cumberland County - The Trial Court terminated the parental rights of the child’s mother and father. Both parents appealed. We affirm.
Bill Young, et ux vs. RAC Express, et al - E2005-01165-COA-R3-CV View
Campbell County - In this declaratory judgment action, the Trial Court invalidated a judgment lien on plaintiffs’ property. On appeal, we affirm.
State v. M. L. - M2005-01733-COA-R3-JV View
Marion Counyt - This is an appeal by a minor from a decision of the Circuit Court for Marion County declaring him a delinquent based upon a finding he was guilty of aggravated arson. The sole issue on appeal concerns the sufficiency of the evidence. Because the evidence is sufficient to support the finding of guilt of aggravated arson beyond a reasonable doubt, we affirm.
Scott Worley vs. Lister Distribution - E2005-02932-COA-R3-CV View
Knox County - The issue presented in this appeal is whether the trial court correctly held that the employee, who had signed an employment contract granting him severance pay if he was terminated without good cause, was fired without good cause. The trial court held that Lister Distribution, Inc., the employer, failed to demonstrate that it terminated Scott Worley’s employment for good cause. The trial court awarded Mr. Worley $45,000 in severance pay pursuant to the contract. We find that the evidence presented is conflicting and heavily dependent upon credibility assessments, and that the evidence does not preponderate against the trial court’s judgment. Consequently, we affirm.
Gary Hixson vs. Clifta Hixson - E2005-01039-COA-R3-CV View
Hamilton County - In this divorce case, the Husband raises the sole issue of whether the trial court erred in granting the Wife alimony in futuro in the amount of $1,000 per month. We hold that the trial court properly applied the pertinent statutory factors in making its determination, and that the evidence does not preponderate against the trial court’s ruling. Therefore, we affirm the judgment of the trial court.
Kenny Noah vs. Melissa Noah - E2005-02511-COA-R3-CV View
Washington County - Following the parties’ divorce in 1995, considerable disagreement between them arose as to whether Kenny Allen Noah (“Father”) should continue to pay alimony to Melissa Gail Noah (“Mother”), whether Father was in arrears on his child support, and the appropriate amount of his current child support payment. The Trial Court ordered the parties to mediate their disagreements and following a successful mediation, the parties entered into a handwritten settlement agreement (the “Agreement”). The Agreement required Father, among other things, to provide current income information so the amount of his child support payment could be calculated in accordance with the Guidelines. When Father failed to timely provide this information, Mother filed a motion asking the Trial Court to enforce the Agreement by requiring Father to provide the income information. A hearing was held on Mother’s motion, but neither Father nor his attorney were present. Instead of ordering Father to provide the requested income information, the Trial Court determined Father’s child support payment based on available information and imputed $18,000 in business income to Father, while not allowing Father any offsets for claimed related business expenses. Father filed a Tenn. R. Civ. P. 60.02 motion for relief from the judgment which the Trial Court denied. We vacate the judgment.
Cases posted the week of 06/12/2006
Neva June Smith V. Tennessee Farmers Life Reassurance,et al. - M2005-00404-COA-R3-CV View
Franklim County - This appeal involves a dispute between an insurance company and the widow of a deceased policyholder. Following the policyholder’s death, the insurance company declined to honor the policy because it had ascertained that the policyholder’s application for insurance contained misrepresentations regarding matters that, if known, would have affected its decision to issue the policy. The policyholder’s widow filed suit in the Chancery Court for Franklin County to force the company to honor the policy. Following a bench trial, the trial court found that the policyholder had made misrepresentations on his application but that these misrepresentations did not increase the insurance company’s risk of loss. Accordingly, the trial court ordered the insurance company to pay the policyholder’s widow and estate $115,000. The insurance company has appealed. We have determined that the evidence does not support the trial court’s conclusion that the policyholder’s misrepresentations did not increase the insurance company’s risk of loss.
Richard Schneider, Tajuana Cheshier, Jamie Page, & Gannett Satellite Information, d/b/a The Jackson Sun v. The City of Jackson - W2005-01234-COA-R3-CV View
Madison County - This case involves the Tennessee Public Records Act. The plaintiff newspaper sought access to investigative records generated by local law enforcement during the course of criminal investigations. The newspaper also sought financial documents relating to a license agreement between the municipal government and a private baseball franchise. The municipal government refused to disclose the criminal investigative records and failed to respond to the newspaper’s written requests for the baseball franchise documents. The newspaper filed suit against the municipal government in the Madison County Chancery Court. After a show-cause hearing, the trial court ruled that the Public Records Act required the disclosure of both types of documents, and awarded the newspaper attorney’s fees. The municipal government appeals. As to the criminal investigative records, we recognize the common-law law enforcement privilege, and on that basis we vacate the judgment of the trial court, reverse the award of attorney’s fees, and remand for further proceedings. Regarding the baseball franchise documents, we find that, insofar as the documents were not in the possession of the municipal government at the time of the newspaper’s requests, they were not subject to the Public Records Act at that time, and on that basis we vacate the trial court’s award of attorney’s fees and remand for further proceedings.
Roy Fred Hurd, et al. v. Cristian Flores, et al. - M2005-00896-COA-R3-CV View
Smith County - This case involves the trial court’s grant of summary judgment to the defendants in a lawsuit filed in relation to an automobile accident. The plaintiffs are the parents of a daughter who, while traveling along Interstate 40 in Smith County, Tennessee, became stuck in the mud alongside the interstate. A deputy of the Smith County Sheriff’s Department responded to the scene and summoned a wrecker to remove the vehicle. While traveling to an ATM machine to obtain the money necessary to pay the wrecker owner for his services, their daughter pulled her car to the shoulder of the interstate near an interstate crossover, which the wrecker owner and the deputy had used to reverse directions on the interstate. After waiting for a few minutes, their daughter, for unknown reasons, pulled into the path of an oncoming vehicle. The resulting collision killed their daughter and the driver of the other vehicle, who happened to be an uninsured motorist. The parents filed a lawsuit alleging common law negligence on the part of the uninsured motorist, the county for the actions of the deputy, and the owner of the wrecker service. Pursuant to statute, the parents also served notice of the lawsuit on their uninsured motorist carrier. The trial court subsequently entered an order dismissing the uninsured motorist from the lawsuit for insufficient service of process. The remaining defendants, including the unnamed insurance carrier, moved for summary judgment. The plaintiffs did not oppose the grant of summary judgment to the uninsured motorist carrier. The trial court ultimately granted summary judgment to the county and the owner of the wrecker service holding that they owed no duty of care to the decedent as a matter of law. The parents appealed the grants of summary judgment to the defendants to this Court. As for the grants of summary judgment to the owner of the wrecker service and the county, we affirm the trial court’s rulings. As for the Appellant’s issues relating to the uninsured motorist carrier, we find that these issues are not justiciable under the doctrine of mootness.
In the Matter of H. N. K. - M2005-02577-COA-R3-PT View
Franklin County - In this appeal, we are asked to review a juvenile court’s termination of a father’s parental rights to his minor daughter. The Tennessee Department of Children’s Services originally filed a dependency and neglect petition in the Juvenile Court of Lincoln County against the mother and the father of the minor child. That court ultimately dismissed the petition as to the mother, gave the mother custody of the child, and ruled that the child was dependent and neglected due to the father’s anger management problem. Accordingly, the juvenile court ordered the father to undergo anger management counseling before he would be permitted to have contact with his daughter. Mother subsequently abandoned the child on the side of a roadway in Franklin County. The department filed a dependency and neglect petition in the Juvenile Court of Franklin County and obtained temporary custody of the child. The department subsequently filed a petition in the Juvenile Court of Franklin County seeking to terminate the parental rights of the mother and the father. As to the father, the petition focused on his failure to complete the anger management counseling ordered by the Juvenile Court of Lincoln County. The Juvenile Court of Franklin County ultimately terminated the parental rights of the father, but the court continued the case against the mother due to insufficient service of process. The father appealed the termination of his parental rights to this Court. We hold that the Juvenile Court of Lincoln County obtained exclusive, continuing jurisdiction over the child as a result of the dependency and neglect proceeding in that court. Accordingly, we vacate the order of the Juvenile Court of Franklin County, as that court did not have subject matter jurisdiction over the petition to terminate the parental rights of the father, and we remand the case to the trial court for further proceedings.
Kenneth Hodson vs. Karla Griffin - E2005-01702-COA-R3-CV View
Hamblen County - In this custody case, Father argues that the trial court erred in awarding Mother primary parental responsibility of the parties’ minor child. Father contends that the trial court’s decision was based on the “tender years doctrine,” which presumed that a child of a very young age should be placed with its mother. Father notes that the “tender years doctrine” is no longer applicable in Tennessee and contends that, because of her efforts to thwart his relationship with the child, Mother should not have been awarded primary parenting responsibility. We determine that there is no evidence that the trial court applied the “tender years doctrine” in this case. We further determine that the evidence does not preponderate against the trial court’s finding that Mother has repented of her prior attempts to interfere with the relationship between Father and the child, and we find that the evidence otherwise supports the trial court’s award of primary parental responsibility to Mother. Accordingly, we affirm the judgment of the trial court.
David Canter vs. Richard Ebersole - E2005-02388-COA-R3-CV View
Hamilton County - Plaintiff brought an action in the Chancery Court to pierce the corporate veil to reach assets of a member to satisfy a judgment against the corporation. The Chancellor refused the request and dismissed the action. On appeal, we affirm.
Randy E. Simpson vs. John Doe, an Unkown Driver - E2005-01699-COA-R3-CV View
Hamilton County - As a result of an automobile accident, Randy E. Simpson (“Plaintiff”) sued John Doe, an unknown/unidentified driver. BlueCross BlueShield of Tennessee, Inc. (“BlueCross/BlueShield”) sought and was granted leave to intervene in the suit to protect its subrogation and right of reimbursement claims. Plaintiff and his uninsured motorist carrier agreed to settle Plaintiff’s case and the Trial Court entered an order dismissing all claims with the exception of BlueCross/BlueShield’s subrogation claims. BlueCross/BlueShield then filed a motion for summary judgment, which the Trial Court granted. Plaintiff appeals to this Court. We find that there are genuine issues of material fact with regard to whether Plaintiff was made whole by the settlement, and we reverse the grant of summary judgment.
Riley Bolding, et al. v. Dentis Sisson, et al. - W2005-01507-COA-R3-C View
Madison County - This is an appeal from a judgment entered on a Jury verdict. The appeal arises out of a commercial real estate sale and involves the alleged misrepresentation of a restrictive covenant attached to property at issue. The Jury found that the Defendants/Appellants intentionally and negligently misrepresented the restrictive covenant that applied to the property. Finding that there is no material evidence to support the Jury’s finding that Plaintiffs/Appellants’ reliance upon Defendants/Appellees’ representation was justified, we vacate the Judgment entered on the Jury Verdict.
Lynda Grisham v. Steven McLaughlin, et al. - M2004-01662-COA-R3-CV VIew
Davidson County - This appeal involves a medical malpractice action arising from knee replacement surgery. The patient filed suit against her surgeon in the Circuit Court for Davidson County in August 2003. Approximately four months later, the surgeon filed a motion for summary judgment supported by his own affidavit. The patient requested a continuance of the hearing on the summary judgment motion to depose the surgeon. The surgeon renewed his summary judgment motion on the day after his deposition. Prior to the hearing, the patient requested another continuance because the surgeon’s deposition had not yet been signed and because the patient’s expert had not yet had an opportunity to review the deposition. The trial court declined to grant the continuance. The court also granted the surgeon’s summary judgment motion after concluding that there were no material factual disputes because the patient had failed to present an expert affidavit contradicting the surgeon’s affidavit. The patient filed a Tenn. R. Civ. P. 59.04 motion accompanied by an affidavit opposing the summary judgment motion. After the trial court denied that motion, the patient appealed. We have determined that the summary judgment must be vacated because, under the facts of this case, the patient was not provided an adequate opportunity to respond to the surgeon’s summary judgment motion.
Arco Building Systems v. Loren Chumley, et al. - M2004-01872-COA-R3-CV VIew
Davidson County - This appeal involves the constitutionality of a sales and use tax assessment against an out-of-state seller of pre-engineered metal buildings. After conducting an audit, the Tennessee Department of Revenue assessed the seller $652,369.68 in uncollected sales and use taxes, penalties, and interest. The seller filed suit in the Chancery Court for Davidson County challenging the assessment on the grounds that it violated the Commerce Clause and the Due Process Clause of the Fourteenth Amendment because it did not have a sufficient connection with Tennessee to justify Tennessee’s exercise of its taxing authority. Both parties filed motions for summary judgment, and the trial court upheld the assessment. The seller has appealed. We have determined that the seller’s extensive connections with Tennessee are sufficient to provide the constitutional nexus required to support the imposition of tax collection liability on the seller.
Steven Means, et al. v. David Ashby, et al. - M2005-01434-COA-R3-CV VIew
Davidson County - This is the second appeal of a protracted custody dispute among the parents and an aunt and uncle of a minor child. The aunt and uncle have had legal custody since 1997. This action commenced in 2000, when the aunt and uncle filed a petition to terminate the parental rights of the parents and the parents filed counter-petitions for custody. In 2002, the trial court dismissed the petition to terminate and custody remained with the aunt and uncle. On appeal this Court affirmed the dismissal of the petition to terminate but vacated the custody determination due to the application of an incorrect legal standard. The case was remanded for the trial court to determine the legal effect of the 1997 custody order on the pending custody claims. The record in this second appeal tells us the trial court failed to determine on remand the effect of the 1997 custody order. Having determined the record is inadequate for this Court to make the determination, we have no option but to vacate the judgment of the trial court and remand this matter once again.
Margaret Akins v. L. Joe Edmondson, et al. - M2004-01232-COA-R3-CV VIew
Davidson County - This is an action by a non-client of a law firm, contending she sustained pecuniary damages due to the acts and omissions of the law firm. The non-client, Margaret Akins, served as the attorney-in-fact for an aged, blind and infirm lady, Josephine Notgrass. In her capacity as attorney-in-fact, Ms. Akins engaged an accounting firm to render professional services for Ms. Notgrass, including tax services and estate planning. The accounting firm recommended the creation of a limited partnership as a vehicle for annual gifting, which the client approved; whereupon the accounting firm engaged the law firm to prepare a limited partnership agreement. Preparation of the partnership agreement was the only service for which the law firm was engaged, and the law firm had no communication or consultation with the client, Ms. Notgrass, or her attorney-in-fact, Ms. Akins. All communications went through the accounting firm. Ms. Notgrass died soon after the partnership agreement was executed, and only one annual gift had been perfected at the time of her death. Contending the inheritance she expected was substantially diminished by the law firm’s failure to suggest amending the will after the creation of the limited partnership, Ms. Akins brought this action. The trial court summarily dismissed the complaint finding Ms. Akins was not a client of the law firm and the firm owed no duty to Ms. Akins. We affirm in all respects.
Mary Ellen McIntire v. Timothy McIntire - W2004-02904-COA-R3-CV View
Shelby County - The trial court granted Mother’s petition in objection to Father’s proposed relocation of the parties’ minor children and amended parenting plan to award custody to Mother; ordered Father to repay prepaid child support to Mother; set Father’s child support obligation based on his current income; ordered Father to refund sums to the children’s accounts; awarded Mother the parties’ timeshare property; and ordered Father to pay $30,000 of Mother’s attorney’s fees. We affirm in part, modify in part, reverse in part, and remand.
In the matter of: Z.A.W. - W2005-01956-COA-R3-JV View
Davidson County - The trial court denied continuance, awarded custody of the parties’ child to Father, and refused to grant Mother visitation until she completed a psychological evaluation and petitioned the court. Mother appeals, asserting the trial court erred by denying a continuance and by refusing to award her visitation rights. We affirm the denial of a continuance, but reverse the denial of visitation and remand to the trial court to set visitation.
Cases posted the week of 06/05/2006
Jennifer Lynn Anderson v. Michael E. Anderson - M2004-01570-COA-R3-CV View
Maury County - In this divorce action, Husband appeals the trial court’s calculation of a downward deviation in child support. Wife appeals the trial court’s denial of a motion to alter or amend the final divorce decree in order to grant wife an equitable share of a pension plan belonging to Husband. For the reasons set forth below, we affirm the trial court.
In the matter of: L.A.B.; Eric Burt v. Elizabeth Farlery -
W2005-02268-COA-R3-CV View
Gibson County - This is a custody proceeding wherein Mother offered no proof except her own testimony. When the judgment was entered against her, she argues that the trial court should have conducted a comparative fitness analysis and that the case should be remanded for this purpose. Judgment of the juvenile court affirmed.
Mary Pierpoint v. Rodney Pierpoint - W2005-01780-COA-R3-CV View
Weakley County - In this domestic relations case, Husband complains, inter alia, that the trial court erred: in awarding primary custody of the parties’ children, ages two and four, to Wife, in the amount of support obligations, and in failing to award his attorney fees. Judgment of the trial court is affirmed in part, vacated in part and remanded.
Zula M. Dunn v. Norman E. Dunn - W2005-02344-COA-R3-CV View
Gibson County - Husband appeals the trial court’s distribution of marital property and award of alimony in futuro. We affirm.
Thomas Jackson v. Dept. of Correction, et al. - W2005-02240-COA-R3-CV View
Lauderdale County - This appeal involves a petition for writ of certiorari filed by a state prisoner. The prisoner was found guilty of money laundering by the prison Disciplinary Board, and placed in punitive segregation for ten days, ordered to pay a $5.00 fine, and was recommended him for involuntary administration segregation. The prisoner filed a petition for common law writ of certiorari in the Chancery Court of Lauderdale County alleging that the Disciplinary Board committed multiple violations of its own disciplinary procedures. The trial court issued an order granting certiorari, and respondents filed a certified copy of the disciplinary record for the prisoner with the trial court. After reviewing the record, the trial court held that the Petitioner had failed to prove that the Disciplinary Board exceeded its jurisdiction or acted illegally, fraudulently or arbitrarily, and quashed the petition. Prisoner appeals. We affirm.
State, ex rel. Willie Beard v. Stacey Hannah - W2005-02350-COA-R3-JV View
Gibson County - This is a Title IV child support case. The State appeals from the trial court’s Order refusing to set support because the Petitioner did not have legal custody of the child at the time she received public assistance from the Department of Human Services, nor was the biological parent given notice that she would have to reimburse the Department of Human Services for moneys spent on behalf of her son when she placed him in the custody of the Petitioner. We reverse and remand.
Lori Ann Russ v. Stephen Russ - M2005-00602-COA-R3-CV View
Giles County - This appeal stems from a divorce case. In this appeal, we are asked to determine whether the chancery court erred when it named the wife as the primary residential parent, when it adopted a visitation schedule requiring the children to be transported between husband and wife on a daily basis during the week, and when it declined to award husband alimony. The husband contends on appeal that naming him primary residential parent and adopting his permanent parenting plan would be less disruptive on the children. Further, he asserts that the court should have awarded him alimony as he was the economically disadvantaged spouse and has a limited income due to his medical condition. We affirm in part, reverse in part, and remand.
Peggy Armstrong v. Nashville Hospital Authority - M2004-01361-COA-R3-CV View
Davidson County - This appeal involves the discharge of a clerical employee by the Metropolitan Nashville General Hospital. After her discharge was upheld by the Metropolitan Nashville Hospital Authority, the employee filed a petition in the Chancery Court for Davidson County seeking judicial review of the decision to discharge her. The trial court affirmed the discharge, and the employee has appealed. Like the trial court, we have determined that the decision to discharge the employee for deficient and inefficient performance of duties is supported by substantial and material evidence.
David Austin, et al. v. State - M2005-01300-COA-R3-CV View
Plaintiffs filed a complaint against Fayette County for injuries sustained in an automobile accident at the intersection of Mount Pleasant Road and State Highway 57. The County’s answer alleged that the State rather than the County maintained the stop sign, intersection and highway which allegedly caused Plaintiffs’ injuries. Plaintiffs filed a second complaint in the Tennessee Claims Commission against the State relying on the ninety day extension provided in Tennessee Code Annotated section 20-1-119 since the applicable one year statute of limitations had expired. The Claims Commission dismissed Plaintiffs’ complaint as time-barred. We affirm in part, reverse in part, and remand the case to the Claims Commission.
Nicole Francois v. Linda Willis - M2005-01263-COA-R3-CV View
Cheatham Cpunty - This appeal involves a request for prejudgment interest in a personal injury case. After the Circuit Court for Cheatham County entered a $27,787.50 judgment for the prevailing motorist, the motorist filed a post-trial motion seeking prejudgment interest. The trial court denied the motion, and the prevailing motorist appealed. We affirm the trial court because prejudgment interest in not available in personal injury cases.
Brock D. Short v. City of Brentwood - M2005-01636-COA-R3-CV View
Williamson County - Plaintiff Brock Short (“Plaintiff”) asserted an inverse condemnation claim against Defendant City of Brentwood (“Defendant”) resulting from Defendant’s blocking of Plaintiff’s access to Meadowlake Drive in Brentwood, Tennessee. The trial court granted summary judgment in favor of Plaintiff and subsequently awarded Plaintiff damages in a separate hearing. Defendant appeals. We reverse and remand.
Interstate Marketing Corp v. Equipment Services - M2005-00208-COA-R3-CV View
Davidson County - The trial court dismissed Plaintiff’s action upon determining the contract at dispute was governed by Tennessee Code Annotated § 47-25-1301 et seq. as it existed prior to being amended by the General Assembly in 1999. We reverse and remand for further proceedings.
Martha Flowers v. Steven Hasenmueller - W2005-00038-COA-R3-CV View
Shelby County - This is a contempt action arising out of a divorce. The parties’ final decree of divorce incorporated a marital dissolution agreement. The husband filed a petition for civil and criminal contempt against the wife for several alleged violations of the martial dissolution agreement. At the first hearing on the husband’s petition, the husband requested leave of court to amend his petition for contempt. Leave to amend was granted, and in light of the amendment, the trial court ordered a two-day continuance of the hearing. When the proceedings were reconvened, the trial court ruled that the wife had committed three violations of the marital dissolution agreement. The trial court awarded the husband $12,000 in attorney’s fees for prosecuting the contempt petition. The wife appeals, asserting that the trial court erred in granting the husband leave to amend his petition, finding that the wife violated the terms of the MDA, and in awarding the husband $12,000 in attorney’s fees. We affirm the grant of leave to amend the petition and the finding that the wife violated the terms of the MDA. However, the award of attorney’s fees is vacated and the cause remanded for reconsideration of this issue.
David Berleue v. Board of Probation & Parole - M2005-00363-COA-R3-CV View
Davidson County - This appeal stems from a denial of a petition for writ of certiorari. In this appeal, we are asked to determine whether the actions of the Tennessee Board of Probation and Parole were fraudulent, arbitrary, or illegal when it denied the parole of an incarcerated offender and when it set the offender’s next parole hearing date five years after his initial parole date. On appeal, the offender maintains that the actions and statements of the board member conducting his parole hearing violated his due process right to a meaningful hearing and that the denial of parole violated his liberty interest in parole because the board did not follow the parole procedures in effect when he was incarcerated. Further, the offender asserts that the board’s five year deferral of his next parole hearing was arbitrary pursuant to Baldwin v. Tennessee Board of Paroles, 125 S.W.3d 429 (Tenn. Ct. App. 2003). We affirm.
Doreen Perez v. Mitchell Kornberg - M2004-01909-COA-R3-CV View
Davidson County - This appeal involves a petition to modify custody and for criminal contempt. The parties were divorced in 1998, and they agreed that the mother would have custody of the parties’ two children. The mother moved to New York after the parties divorced. Three years later, the trial court entered an agreed order giving primary custody of the children to the father, who still lived in Tennessee. While the father had custody, the mother traveled from New York to visit the children. The parties remained cooperative with each other until the father remarried. After that, the parties’ relationship began to decline. The mother claimed that the father interfered with her visitation with the children and otherwise attempted to alienate the affections of the children. Finally, the mother filed a petition to change custody and for criminal contempt against the father for his interference with her court- ordered visitation. After a hearing, the trial court changed custody to the mother and found the father guilty on three counts of criminal contempt. The father now appeals. After a careful review of the record, we affirm the trial court’s decision.
Gary Weaver, et al. v. Thomas McCarter, et al. - W2004-02803-COA-R3-CV View
Shelby County - Plaintiffs Gary and Gail Weaver filed suit against Coldwell Banker Hoffman-Burke, Inc. Realtors (“Defendant CBHB”), Jim Perdue (“Defendant Perdue”), Thomas McCarter (“Defendant McCarter”), and Chip Hunter (“Defendant Hunter”) seeking damages resulting from a failed real estate sale. The Plaintiffs specifically sought damages from Defendants CBHB and Perdue for negligence per se, negligent misrepresentation, and fraud. The trial court granted summary judgment in favor of the Plaintiffs on the issue of liability for all Defendants, but reserved ruling on damages for trial. At trial, the trial court awarded the Plaintiffs damages in the amount of $134,225.06 plus attorney’s fees and held all Defendants jointly and severally liable for the entire award. Both the Plaintiffs and Defendants CBHB and Perdue assert various issues on appeal. For the reasons stated below, we affirm in part, reverse in part, and remand this case for further proceedings.
George Palmertree, et al. v. Jess Rivera - W2005-02363-COA-R3-CV View
Obion County - The trial court entered a default judgment in favor of Plaintiffs in an action alleging breach of contract, fraud, and violations of the Tennessee Consumer Protection Act, and denied Defendant’s Rule 60.02 motion to set aside the judgment. We reverse and remand for further proceedings.
Jerry Joyner v. Personal Finance Corp. - W2005-02202-COA-R3-CV View
Henry County - This is a summary judgment case. Appellant/Husband and his ex-wife entered into a marital dissolution agreement wherein the ex-wife was awarded the marital residence subject to the condition that should she choose to sell the property Appellant was then entitled to $20,000.00 from the net proceeds of the sale. The ex-wife refinanced the property and executed a Deed of Trust in favor of the Appellee. When ex-wife defaulted on her payments, Appellee foreclosed on the property. Appellant/Husband filed suit against the Appellee seeking enforcement of an equitable lien against the property. The trial court granted summary judgment in favor of the Appellee. We affirm.
Cases posted the week of 05/29/2006
In Re: T. B. L. - M2005-02413-COA-R3-PT View
Cheatham County - This appeal involves the termination of the parental rights of the biological father of a two-year-old child. The child’s mother and her husband filed a petition in the Chancery Court for Cheatham County seeking to terminate the biological father’s parental rights and to approve the husband’s adoption of the child. Following a bench trial, the trial court granted the petition and terminated the father’s parental rights on the ground of abandonment. The father appealed. We have determined that the order terminating the father’s parental rights must be vacated because the appellate record is insufficient to enable this court to review the trial court’s decision.
Dr. Marcel Eluhu, et al. v. Walter Richards, et al. - M2005-00922-COA-R3-CV View
Davidson County - This is an appeal contesting proper service of process after a default judgment was entered against Defendant. Defendant first appeared and raised the issue of ineffective service of process in a Rule 60.02 motion after Plaintiffs attempted to execute on the judgment. After a hearing, the court denied Defendant’s motion determining that Defendant’s attorney had the authority to accept service on his behalf and Defendant had otherwise failed to carry his burden to show that service was ineffective. We affirm the judgment of the trial court.
Faith Ward, et al vs. Gregory Glover, et al - E2004-02864-COA-R3-CV View
Knox County - In this medical malpractice case, Jessie Ward and Regina Marie Ward, individually and on behalf of their minor daughter, Faith Elizabeth Ward (“Faith”), sued a number of defendants, including Gregory L. Glover, M.D., Michael Bullen, M.D., Women’s Health Partners of East Tennessee, P.C. (“WHP”), Anesthesia Consultants of Knoxville, P.C. (“ACK”), Baptist Hospital of East Tennessee, Inc., and Baptist Health System of East Tennessee, Inc. (these two latter defendants collectively will be referred to herein as “the Baptist defendants”), seeking damages for catastrophic and permanent injuries to Faith arising out of her birth at Baptist Hospital in Knoxville. The trial court granted summary judgment to ACK. It also granted partial summary judgment to Dr. Glover with respect to the plaintiffs’ claims arising out of his role as medical director of the obstetrics (sometimes referred to as “OB”) unit at Baptist. All of the plaintiffs’ claims against the Baptist defendants were settled. The claims against Dr. Glover arising out of his role as treating physician in Faith’s birth and the claims against Dr. Bullen and WHP proceeded to trial. The jury returned a verdict in favor of the remaining defendants. The plaintiffs appeal the grant of summary judgment to ACK and the grant of partial summary judgment to Dr. Glover; the trial court’s decision to allow the jury to consider the fault of the Baptist defendants; the trial court’s denial of the plaintiffs’ motion to waive the locality rule; the court’s ruling precluding the introduction of certain of the plaintiffs’ medical expenses; and the trial court’s instructions to the jury regarding “errors in judgment.” In addition, the plaintiffs contend that certain statements made during closing argument by counsel for Dr. Bullen and WHP constitute reversible error. We affirm.
Judith Shettleworth v. Doyle Shettleworth - M2005-01238-COA-R3-CV View
Coffee County - Husband appeals the award of alimony in futuro and the amount of alimony awarded to Wife. Finding the parties were married for thirty years, that Wife is economically disadvantaged, and that Wife’s needs and Husband’s ability to pay are supported by the record, we affirm.
Julia Yvonne Graham Walker vs. Henry Martin Walker, Jr. - E2005-01134-COA-R3-CV View
Washington County - In this divorce case, the issue presented is whether the trial court erred in denying the Wife post-judgment relief pursuant to Tenn. R. Civ. P. 60.02(1). The Wife filed her Rule 60.02 motion over four months after the final divorce decree, which incorporated the terms of the parties’ settlement agreement, was entered. She argued that the court’s order did not accurately reflect the parties’ true agreement, due to “mistakes, inadvertence, surprise or excusable neglect.” We affirm the trial court’s judgment that Wife has not made the required showing that she is entitled to relief under Tenn. R. Civ. P. 60.02(1).
Robert Shofner, M.D. v. Ann Shofner, M.D. - M2004-02619-COA-R3-CV View
Davidson County - The trial court ordered a parenting plan on September 19, 2002, which was the subject of a previous appeal to this Court. While that appeal was pending, the present petition and counter petition were tried and adjudicated in the trial court resulting in a trial court order that no change of circumstances had occurred between September 19, 2002, and the date of the supplemental proceedings ending June 8, 2004. By its order of July 12, 2004, the court found no material change of circumstances relating to the children and dismissed Appellant’s counter petition. We affirm the judgment of the trial court.
Time Warner Entertainment v. Commissioner of Revenue - M2005-00291-COA-R3-CV View
Davidson County -The taxpayers appeal the Chancellor’s dismissal under a Tennessee Rule of Civil Procedure 12.02(6) Motion of their refund claim. The claim sought exemption for sales and use taxes paid on alleged industrial machinery and purchases of labor for resale. We affirm the denial of the industrial machinery credit, reverse the denial of sales for resale credit and remand the case for further proceedings.
State, ex rel. Sharon Townsend v. Eric Williamson - W2004-02980-COA-R3-CV View
Shelby County - This appeal concerns two related, but distinct, proceedings in Juvenile Court. One was a custody proceeding, and the other a contempt of court proceeding arising from a failure to comply with child support obligations. Separate docket numbers were assigned to each case. After a judgment was rendered in the contempt proceeding, the father filed a notice of appeal. Several months later, another judgment was rendered in the custody modification proceeding. No notice of appeal was filed for the custody modification proceeding. After the case was appealed to the Court of Appeals, the father obtained a consolidation order from the Juvenile Court. On appeal, the father argues only that the Juvenile Court erred in its custody order. Finding that neither of the two orders is final and appealable, we must dismiss the father’s appeal based upon a lack of jurisdiction and remand all proceedings to the Juvenile Court.
In Re: Thomas P. - E2005-01367-COA-R3-CV View
Sevier County - The trial court terminated the parental rights of Rene V. (“Mother”) to her child, Thomas P. (DOB: September 27, 2000), upon finding, by clear and convincing evidence, that grounds for terminating her parental rights existed and that termination was in the best interest of the child. Mother appeals. We affirm.
James Jackson v. Dept. of Correction, et al. - W2005-02239-COA-R3-CV View
Lauderdale County - A prisoner in the custody of the Tennessee Department of Correction filed a pro se petition for common law writ of certiorari in the trial court seeking to contest the prison disciplinary board’s findings. The department filed a motion to dismiss for lack of subject matter jurisdiction, citing the petition’s lack of notarization, its failure to state that it was the first application for the writ, and the prisoner’s failure to file it within sixty (60) days of the administrative action. The trial court granted the department’s motion to dismiss. The prisoner filed a motion for a new trial asserting that he complied with Tennessee Rule of Civil Procedure 5.06. The trial court denied the motion. The prisoner timely filed an appeal to this court. We affirm the dismissal of the petition.
Jerry Duke v. Browning-Ferris Ind., et al. - W2005-00146-COA-R3-CV View
Fayette County - Plaintiff/Appellant filed suit against Defendants/Appellees claiming that Defendants/ Appellees had violated the Tennessee Trade Practices Act, the Tennessee Consumer Protection Act, and the common law doctrines of good faith and fair dealing, and unjust enrichment in its contracting for commercial waste hauling services in the Memphis area. The trial court granted summary judgment in favor of Defendants/Appellees on both the statutory violation claims and the common law claims. We affirm.
Brooke Rathnow & Diane Rathnow vs. Knox County, et al - E2005-02515-COA-R3-CV View
(Concur) - View
Knox County - A high school student was injured when she fainted after viewing a first aid instructional video depicting simulated wounds that was being shown in one of her classes. The student, through her parents, sued Knox County and the Knox County Board of Education under the Tennessee Governmental Tort Liability Act, alleging that the teacher supervising the class was negligent in allowing her to leave the classroom unattended because it was foreseeable that she might be suffering a physical reaction to the video and that she might faint. The trial court entered judgment in favor of the plaintiff and awarded her damages in the amount of $30,000. The defendants appeal, arguing that plaintiff's fainting was not foreseeable and that, even if the trial court was correct in its finding of negligence, the trial court awarded excessive damages. Upon our determination that the harm suffered by the student was not reasonably foreseeable, we reverse the judgment of the trial court and dismiss this case.
State, ex rel. Linda Oakes vs. Charles J. Waldo - E2005-02394-COA-R3-CV View
Cumberland County - This is a post-divorce case addressing the subject of child support. Charles J. Waldo (“Father”), the obligor parent, appeals the trial court’s order, which found him in contempt for willful failure to pay child support and required him to pay an arrearage of $36,243 to the Central Child Support Receipting Unit of the Department of Human Services (“DHS”). Father argues that the trial court should have ordered the arrearage to be deposited in certificates of deposit titled jointly in the name of Father and the child for whose benefit the support had been ordered. His underlying argument is that that the arrearage should go to the child, not the obligee parent, Linda Oakes (“Mother”). We affirm the trial court’s judgment.
Randall Birchfield vs. Michael Phillips, et al. - E2005-01795-COA-R3-CV View
Washington County- Randall Birchfield (“the auctioneer”) operates a realty and auction business under the trade name of Randall Birchfield Real Estate and Auction. He entered into a written contract (“the auction contract”) with Jimmy B. Phillips and his wife, Judy H. Phillips (“the sellers”), by the terms of which he agreed to sell at auction certain tracts of real property owned by the sellers. At the auction, Michael L. Phillips, who is Jimmy’s brother, along with Michael’s wife, Elizabeth Phillips (“the buyers”), were the successful bidders. The sellers and the buyers then executed a contract entitled “Offer to Purchase with Acceptance” (“the purchase contract”), which contract was also signed by the auctioneer. Despite the existence of a facially-valid contract, the buyers failed to carry through with their contractual obligations. As a consequence, the sale did not close. The auctioneer filed suit against the sellers and the buyers. The trial court held that the sellers are liable to the auctioneer for the 10% commission specified in the auction contract and for prejudgment interest at a rate of 2.25%. The auctioneer’s claim against the buyers was dismissed. The sellers appeal and both sides raise issues. We affirm the trial court’s judgment with respect to the auctioneer’s commission, but vacate the trial court’s determination that 2.25% is the appropriate rate of prejudgment interest. On the subject of prejudgment interest, we remand this case to the trial court with instructions.
Ronald K. Pendergraph vs. Juliana Pendergraph - E2005-01458-COA-R3-CV View
Bledsoe County -Ronald K. Pendergraph (“Husband”) sued Juliana T. (Bates) Pendergraph (“Wife”) for a divorce by filing a complaint in the Chancery Court for Bledsoe County (“the Chancery Court”). Wife made no appearance in the case. Husband filed a motion for a default judgment and numerous other motions. The Chancery Court dismissed the case for lack of venue. Husband appeals to this Court claiming, in part, that the Chancery Court erred in dismissing his case and in failing to rule on Husband’s pending motions. We affirm.
Connie Mills v. Thomas V. Mills - E2005-01427-COA-R3-CV View
Hamilton County - Connie Sue Craig Mills (“Wife”) filed a Petition for Contempt and Complaint for Damages against Thomas V. Mills (“Husband”) claiming, in part, that Husband had failed to disclose a judgment lien and rent concessions due to a tenant on property that Husband was ordered to transfer to Wife pursuant to the parties’ marital dissolution agreement. Wife also claimed that Husband tortiously interfered with a contract Wife had to refinance the property. After a bench trial, the Trial Court found and held, inter alia, that Wife would have to pursue her claim for repayment of the rent concessions in a separation action against the tenant, that Wife was entitled to a judgment against Husband to recover the amount of the discount offered to Wife by the prior note holder, and that Wife was entitled to an award of attorney’s fees. Husband appeals claiming that he was not in contempt of any court order and that Wife did not state a valid claim for, or prove, tortious interference with contract. We reverse.
In Re: Meagan E. - E2005-02440-COA-R3-PT View
Hamilton County - The trial court terminated the parental rights of Heather E. (“Mother”) to her child, Meagan E. (DOB: March 28, 2000), upon finding, by clear and convincing evidence, that grounds for termination existed and that termination was in the best interest of the child. Mother appeals. We affirm in part and vacate in part.
Terry Harris, et al. v. Jeffrey Stover & Nationwide Mutual - W2005-02173-COA-R3-CV View
Shelby County - In this appeal, we are asked to determine whether the chancery court properly granted the plaintiffs’ motion for summary judgment. In this case, a lessor and his insurance company brought a direct action against a lessee and the lessee’s insurance company seeking a declaration of the parties’ rights under the lease agreement and reimbursement to the lessor’s insurance company for amounts paid to the lessor for damages to the rental property as a result of a fire while the lessee resided on the property. On appeal, the appellant argues that under the terms of the insurance policy maintained by the lessee, no obligation to pay the lessor or his insurance company arose as a matter of law. We reverse the decision of the chancery court and remand to the chancery court for the entry of an order granting summary judgment to the appellant.
Latreayl Mitchell v. Michael Green - W2005-01057-COA-R3-JV View
Shelby County -
In this appeal, we are asked to determine whether the juvenile court erred when it increased the amount of child support the father was required to pay the mother for their child born out of wedlock. The father originally filed a petition to modify child support seeking to decrease his child support obligation based on the fact that he had another child with another woman that currently resides with him. The juvenile court increased his child support obligation finding that he failed to visit his child after the mother moved to Knoxville, Tennessee, including certain periods of time when the mother brought the child to Memphis, Tennessee to visit the father. The father contends that it was error for the juvenile court to increase his child support obligation because the mother was in violation of the parental relocation statute, section 36-6-108 of the Tennessee Code, and that the father was prevented from visiting his child due to the distance and his medical condition. We affirm.
Cases posted the week of 05/22/2006
State v. New Beginning Credit Assoc., et al. - M1999-00461-COA-R3-CV View
Davidson County - This appeal involves an enforcement action against a credit services company. The State of Tennessee filed a complaint under the Tennessee Credit Services Businesses Act and the Tennessee Consumer Protection Act of 1977 against the company, its president, and several related entities. Following an expedited bench trial, the trial court found that the defendants had violated both statutes, entered a permanent injunction against future violations, and set a hearing on further remedies. The court later awarded the State over $42,000 in attorney’s fees and costs and levied $46,200 in civil penalties against the credit repair company and its president. The court declined to order restitution to the company’s customers, and the State appealed. We have concluded that the trial court erred by finding that the company rendered complete performance to its customers as required by the Tennessee Credit Services Business Act and by refusing to award restitution to the company’s customers on the ground that it would be impractical and ineffective. Accordingly, we affirm the trial court’s decision in part, vacate its denial of restitution, and remand the case for further proceedings consistent with this opinion.
State, ex rel. Latonya Campbell v. Thomas Conley - W2005-01842-COA-R3-JV View
Gibson County - The trial court granted Respondent Father a downward deviation from the child support guidelines when setting retroactive child support. We reverse.
In the matter of: M.A.W. - W2005-02095-COA-R3-PT View
Shelby County - In this termination of parental rights case, the juvenile court terminated the parental rights of T.H.W. (“Mother”) and all potential fathers. Mother appeals. We affirm.
Miranda Luna, et al. v. William Sherwood, et al. - M2005-00366-COA-R9-CV View
Davidson County - The issue on appeal is whether the doctrine of forum non conveniens applies in a transitory, intrastate tort action. This is a medical malpractice action in which all of the alleged negligent acts and omissions occurred in Dekalb County. Plaintiffs, White County residents, filed suit in Davidson County, where two of the four defendants have their principal offices. The two Dekalb County defendants filed a Motion to Dismiss based upon improper venue, or in the alternative, forum non conveniens. The trial court found forum non conveniens inapplicable to this intrastate forum dispute and venue proper. We affirm.
Craig & Karmen White v. Kevin Early; V.H. Pickle; Steve Pickle; Lakewood Marina, et al. - M2004-01055-COA-R3-CV View
Davidson County - This is a fraudulent misrepresentation/breach of contract claim involving the sale of a boat slip. The defendant owned a marina on a lake, which was subject to a twenty-year lease from the U. S. Army Corps of Engineers. The defendant marina owners sold boat “slips” at the marina, that is, space at a dock at which the owner could dock his boat. In May 2000, the plaintiffs purchased the defendant slip owner’s boat slip at the marina. The defendant marina owners acted as brokers for the defendant owner of the slip and received a commission on the sale. Prior to the sale, the defendant marina owners represented to the plaintiffs that (1) the defendant slip owner had clear title to the boat slip, and (2) the Corps of Engineers lease, which allowed the marina to operate on the lake, would be in effect for another twenty years, when actually the lease was scheduled to expire in 2005. In August 2000, it was discovered that the breakwater barges surrounding the perimeter of the marina were in a dangerous condition, and the Corps ordered the defendants to remove the barges. A dispute arose about who was responsible for removing the barges, the defendant marina owners or the association of boat slip owners. The deteriorated barges were not removed. Consequently, the Corps revoked its lease, the marina closed, and the plaintiffs were no longer able to use their newly purchased boat slip. The plaintiffs filed this action against the defendant marina owners and the previous owner of the slip, alleging fraudulent misrepresentation, breach of contract, and violation of the Tennessee Consumer Protection Act. After a bench trial, the trial court held in favor of the plaintiffs, finding that the defendant marina owners made fraudulent misrepresentations and that the defendant slip owner transferred rights that were illusory. All of the defendants appeal. We reverse, finding, inter alia, that valuable rights were transferred and that the damages to the plaintiffs were not caused by the allegedly fraudulent misrepresentations.
In Re: Adoption of K.M.K. & K.L.K,
Jeffrey Eneix, Keri Eneix, and Chantille Kares v. Stephen Kares &
Sean Laura - W2005-02073-COA-R3-PT View
Henry County - This is an adoption and termination of parental rights case. The maternal grandparents of the two children at issue filed this petition requesting that the rights of the children’s father be terminated and that the grandparents be permitted to adopt the children. The mother of the children joined in the petition. The petitioners alleged that the father’s rights should be terminated based on his abandonment for failing to visit or support the children for a period of four months preceding his incarceration. After a hearing, the trial court found three grounds on which to terminate the father’s parental rights: abandonment, persistent conditions, and the length of the father’s prison term. The trial court also found that the children’s best interest would be served by terminating the father’s parental rights. The father now appeals, claiming that the trial court erred in terminating his rights based on abandonment. We affirm the trial court’s decision, because the father did not challenge the other two grounds on which his rights were terminated, and the termination of the his rights based on those grounds must stand.
Quebecor Printing vs. L & B Manufacturing, et al - E2004-02668-COA-R3-CV View
Sullivan County - Quebecor Printing Corporation (“Plaintiff”) entered into a contract with L & B Manufacturing Company (“Defendant”) to purchase a machine (“the Machine”). A dispute arose after Defendant delivered the Machine to Plaintiff and Plaintiff had paid the majority of the purchase price, but before the Machine was set-up for use in production. Plaintiff and Defendant hired attorneys and entered into a second contract (“Settlement Agreement”) intending to settle their differences. Disputes arose in connection with the Settlement Agreement and Plaintiff sued Defendant seeking, in part, a refund of the money paid for the Machine. After a bench trial, the Trial Court held, inter alia, that the parties had entered into the Settlement Agreement and had undertaken to perform that agreement thereby extinguishing the underlying agreement for the purchase of the Machine; that Plaintiff was entitled to a judgment against Defendant in the amount of $75,000, which was the purchase price of the Machine; that Plaintiff had breached its duty as a bailee of the Machine entitling Defendant to an offset against the judgment for damage to the Machine while in Plaintiff’s possession; and that this offset was to be decreased by $5,000, which was the uncontested amount of damages caused to the Machine by Defendant prior to Plaintiff’s storage of the Machine. After additional hearings, the Trial Court entered an order finding and holding, inter alia, that Plaintiff was responsible for $10,000 of damages to the Machine, to be reduced by the $5,000 worth of uncontested damages as previously ordered resulting in a net judgment of $70,000. The Trial Court declined to award Plaintiff its discretionary costs. Defendant appeals raising issues regarding the interpretation of the Settlement Agreement, the amount of damages, and the exclusion of evidence. Plaintiff argues the Trial Court erred in not awarding discretionary costs. We reverse as to the issue of discretionary costs, modify the judgment to hold that Defendant is entitled to the Machine and to have the Machine shipped to Defendant at Defendant’s expense, if Defendant so chooses, and we affirm the remainder of the judgment as so modified.
Julia V. Lee, et al vs. State - E2005-02030-COA-R3-CV View
This appeal focuses on a request for post-judgment interest. This litigation began when Julia V. Lee and Robert Joe Lee (“the Claimants”) filed a claim against the State of Tennessee seeking to recover damages associated with the personal injuries sustained by Ms. Lee as a result of her tripping and falling on the campus of the University of Tennessee - Knoxville. The Claims Commissioner entered judgment in favor of the Claimants in the amount of $37,000. The judgment was stayed pending an appeal by the State. This court dismissed the State’s appeal predicated upon the fact that the State’s notice of appeal was not timely filed. Subsequently, the State paid the judgment in full. The Claimants then filed a motion seeking an award of post-judgment interest. The Claims Commissioner denied the Claimants’ motion. They appeal, arguing that the Commissioner erred in failing to award them post-judgment interest. We reverse the Commissioner’s decision not to award post-judgment interest.
Lorine Hindman vs. Allen & Jackie Moore - E2005-01287-CA-R3-CV View
Bradley County - Decedent executed a Power of Attorney document granting her son broad general powers to act on her behalf. The son executed a Trust Deed and Modification Agreement on Decedent’s property. Decedent and later her Estate asked the Chancery Court to void these documents. The Court refused. On appeal, we affirm.
Herbert A. Holcomb, et al vs. Crockett Lee - E2005-01451-COA-R3-CV View
Hawkins County - This appeal involves six different lawsuits filed by Hebert A. Holcomb, the Juvenile Court Judge for Hawkins County, Tennessee. In each of these lawsuits, Judge Holcomb sued the Hawkins County Executive/County Mayor seeking additional funding for the salaries of various personnel positions. Each of the six petitions was met with a motion to dismiss claiming Judge Holcomb did not have standing to bring these lawsuits pursuant to Tenn. Code Ann. § 8-20-101, the statute which authorizes court clerks to bring lawsuits seeking relief of this nature. In response to the motions to dismiss, Judge Holcomb argued he had the inherent power to bring these six lawsuits. The Trial Court disagreed with Judge Holcomb’s analysis of the inherent powers doctrine and dismissed the lawsuits. We affirm the dismissal of the six lawsuits, but for reasons other than those set forth by the Trial Court.
State v. Tino Rodgers - W2005-00632-COA-R3-CV View
Gibson County - In this case we are asked to review a juvenile’s confinement following a juvenile court’s finding that the juvenile violated the terms of his probation. The juvenile court found the juvenile to be delinquent after the juvenile entered a guilty plea to an assault charge, and the court placed the juvenile on probation. Thereafter, the juvenile was charged with other offenses, and the juvenile court entered a verbal directive placing the child on house arrest. When the juvenile violated this directive, the juvenile court entered an order finding that the juvenile violated the terms of his probation and committed him to the custody of the Tennessee Department of Children’s Services. After being confined, the juvenile filed a post-commitment petition pursuant to the Juvenile Post-Commitment Procedures Act in the circuit court. The circuit court upheld the juvenile court’s ruling. The juvenile appealed the circuit court’s decision to this Court. During the pendency of this appeal, the juvenile was released from custody. Accordingly, we hold that the present appeal is not justiciable under the doctrine of mootness, therefore, we dismiss the present appeal.
Jacquelyn Selle v. Fayetteville Aviation, et al. - M2005-01185-COA-R3-CV View
Lincoln County - Surviving spouse sued nine Defendants in Lincoln County Circuit Court under the doctrine of strict liability, negligence, and breach of warranty in the manufacture, sale, and maintenance of the aircraft her husband was operating at the time of his death. The trial court dismissed an Indiana corporate Defendant who sold the aircraft to Decedent’s employer for lack of personal jurisdiction. Plaintiff appealed and we affirm the judgment of the trial court.
Harding Academy v. Nashville & Davidson County, et al. - M2005-01740-COA-R3-CV View
Davidson County - The Zoning Administrator of the Metropolitan Codes Department of Nashville and Davidson County issued a permit to an elementary school to create a park on property adjacent to the school campus. The local neighborhood association appealed the issuance of the permit to the Metropolitan Board of Zoning Appeals. The Board revoked the permit on the basis that (1) the property would not remain in its natural state; (2) the school intended to use the property as athletic fields for the physical education of their students; (3) instructional activity is not allowed in a park; and (4) the requested use of the property would more likely be classified as a recreation center. The elementary school filed a common law writ of certiorari in Davidson County Chancery Court appealing the revocation. The chancery court reversed the decision of the Board and reinstated the permit finding that the Board acted arbitrarily, capriciously, illegally, beyond its authority, and without supporting evidence in the record. We affirm the decision of the chancery court in all respects.
State ex rel, Paul G. Summers, et al vs. Ricky Whetsell - E2005-01426-COA-R3-CV View
Washington County - The State brought an action for removal of defendant’s improvements on State property. Defendant defended on the grounds the improvements were on his property and estoppel. The Trial Court granted the State relief. On appeal, we affirm.
In The Matter of T.S., M.S vs. B.H. - E2005-02590-COA-R3-PT View
Washington County - The Trial Court terminated the mother’s parental rights. The mother has appealed and the determinative issue is whether the clear and convincing evidence established it was in the child’s best interest to terminate the relationship.
Cases posted the week of 05/15/2006
Daniel R. Beaird, et al. v. Willie Rogers, et al. - W2005-02179-COA-R3-CV View
Lauderdale County - Plaintiffs/Appellees obtained a judgment on a detainer warrant in the General Sessions Court at Lauderdale County requiring the Defendants/Appellants to relinquish possession of the residence at 465 Maple Hill Circle in Ripley, Tennessee. The Defendants/Appellants filed a de novo appeal as of right in the Circuit Court at Lauderdale County. The circuit court affirmed the judgment of the sessions court. Appellants appeal. We affirm.
Horace Ray Runions v. Mary Runions - W2005-01954-COA-R3-CV View
Henry County - Plaintiffs/Appellees obtained a judgment on a detainer warrant in the General Sessions Court at Lauderdale County requiring the Defendants/Appellants to relinquish possession of the residence at 465 Maple Hill Circle in Ripley, Tennessee. The Defendants/Appellants filed a de novo appeal as of right in the Circuit Court at Lauderdale County. The circuit court affirmed the judgment of the sessions court. Appellants appeal. We affirm.
Cathey Jackson v. John Jackson, III - W2003-01397-COA-R3-CV View
Shelby County - This is an appeal from a post-divorce criminal contempt proceeding. The parties were divorced by final decree in July 1999. The divorce decree incorporated the parties’ marital dissolution agreement, in which the husband agreed to pay the wife spousal support over a period of time. The husband did not make the support payments, and consequently the wife filed several motions for criminal contempt against the husband. After a hearing, the trial court entered an order reserving judgment on the issue of the husband’s criminal contempt, but requiring a non-party corporation in which the husband was a shareholder to pay to the wife a portion of the monies received by the corporation in satisfaction of the husband’s support obligation. The husband now appeals, arguing that the trial court erred in holding the corporation liable for his personal debt. We dismiss the appeal, finding that it is not an appeal from a final order, and remand to the trial court for further proceedings.
Muriel A. Rodgers v. Jody A. Rodgers - M2004-02046-COA-R3-CV View
Rutherford County - This appeal involves the constitutionality of the Tennessee Department of Human Services’ child support enforcement and collection procedures. In September 2003, the Chancery Court for Rutherford County ordered the father to pay $375 per month in child support directly to the mother. In April 2004, the Department of Human Services issued an ex parte order attempting to require the father’s employer to begin deducting both the current and past due child support from his salary and to remit these funds to the Department. The father filed a petition against the wife and the Department requesting the trial court to vacate the Department’s orders and to enjoin the Department from issuing further orders or to otherwise modify the final divorce decree. The trial court issued a temporary restraining order and, following a hearing, vacated the Department’s orders with regard to the father’s child support and enjoined the mother from further attempts to collect child support without first seeking relief from the court. The court also dismissed the Department on the ground that it was not a proper party, and then denied the motion of the Attorney General and Reporter to intervene to defend the constitutionality of the Department’s administrative child support enforcement procedures. The Department and the Attorney General appealed to this court. While this appeal was pending, the father and the mother compromised and settled their child support dispute. We have determined that this appeal is now moot because there is no continuing justiciable controversy regarding child support.
Donna Tait v. William Tait - W2005-00976-COA-R3-CV View
Shelby County - Donna Marie Tait (“Wife”) filed for divorce from William Frank Tait (“Husband”) citing grounds of inappropriate marital conduct. The parties entered into a Permanent Parenting Plan and a Property Settlement Agreement, but reserved the issue of alimony for trial. After hearing the evidence, the trial court found that Wife was not in need of additional alimony support from Husband, despite Husband’s ability to pay. Wife appeals. We affirm.
Denise Kissick v. Edward Kallaher - W2004-02983-COA-R3-CV View
Shelby County - The juvenile court dismissed Mother’s dependency and neglect petition. Mother appealed to circuit court, which dismissed her appeal without a hearing or presentation of evidence. Mother appeals. We vacate the order of dismissal and remand.
Great Southern Home v. Eaton's Creek Park Real Estate Investors Fund, et al. - M2005-00472-COA-R3-CV View
Davidson County - Great Southern Homes, Inc., a home builder, appeals the summary dismissal of its complaint for breach of contract. Plaintiff sued the developer of the Eaton’s Creek Park Subdivision contending the developer breached the parties’ contract by failing to honor Plaintiff’s preferential option to purchase lots in the second phase of the development, and by failing to develop the lots in a timely manner. The trial court summarily dismissed the complaint, finding no material facts were in dispute, and the contract did not support Plaintiff’s claims. We affirm.
State ex rel. Debra Woodard v. John S. Woodard - M2004-01981-COA-R3-CV View
Rutherford County - The State of Tennessee appeals the denial of its ex rel. Petition to Set Child Support for the benefit of a mother and her three children. The parents of the children were granted a divorce in 2001, a year prior to the filing of this petition. Pursuant to the Divorce Decree and Permanent Parenting Plan, the mother was designated as the custodial parent and she was awarded equal parenting time with the father; however, the father was excused from paying child support other than medical insurance and expenses. Subsequent to the divorce, the mother qualified for public assistance, which led to the State filing this petition. The Chancellor dismissed the State’s petition based upon the conclusion child support was set pursuant to a previous order that had become final and the State’s petition was deficient on its face because it did not allege a substantial and material change of circumstances. Finding no error, we affirm the dismissal of the State’s petition.
David Mosley, et al. v. Phillip L. McCanless, Metro Government- M2005-00145-COA-R3-CV View
Davidson County - Great Southern Homes, Inc., a home builder, appeals the summary dismissal of its complaint for breach of contract. Plaintiff sued the developer of the Eaton’s Creek Park Subdivision contending the developer breached the parties’ contract by failing to honor Plaintiff’s preferential option to purchase lots in the second phase of the development, and by failing to develop the lots in a timely manner. The trial court summarily dismissed the complaint, finding no material facts were in dispute, and the contract did not support Plaintiff’s claims. We affirm.
Richardson's Brentwood Homes v. Collierville Municipal Planning Comm. - W2005-02172-COA-R3-CV View
Shelby County - The trial court dismissed Appellant’s appeal of the Collierville Municipal Planning Commission’s denial of Appellant’s subdivision application as barred by the statute of limitations. We reverse, vacate the order of dismissal, and remand.
NorthEast Knox Utility District vs Stanfort Const., et al - E2005-01284-COA-R3-CV View
(Dissent) - View
Knox County - The Trial Court granted defendants summary judgment on the grounds the statute of limitations had run on plaintiff’s claims. On appeal, we vacate and remand.
Hershell Frizzell, Jr. v. Mohawk Ind., et al. - M2004-01598-COA-R3-CV View
Marion County - An employee of Mohawk Industries filed this retaliatory discharge action contending he was wrongfully terminated because he filed a workers’ compensation claim for benefits. Mohawk denies he was fired because of the workers’ compensation claim and insists he was fired due to repeated violations of its attendance policy. Following discovery, Mohawk filed a motion for summary judgment contending Plaintiff failed to establish his workers’ compensation claim was a substantial factor in the motivation to terminate his employment. The trial court granted the motion. Plaintiff appeals contending genuine disputes of material fact exist. Finding no error, the judgment of the trial court is affirmed.
J. O. House v. J. K. Edmondson - W2005-00092-COA-R3-CV View
(Dissent) - View
Shelby County - In 1997, the Appellant, a shareholder in a Tennessee corporation, reviewed the corporation’s records and discovered that the corporation’s majority shareholder, who also served as the corporation’s president and chairman of the board of directors, had been misappropriating corporate funds for his personal use. In 1999, the Appellant filed a shareholder’s derivative action against the majority shareholder of the corporation alleging breach of fiduciary duty. In addition to his derivative claim, the Appellant also filed a direct claim against the majority shareholder for breach of a Pre-Incorporation Agreement signed by the shareholders at the corporation’s inception. The corporation appointed a one person special litigation committee to investigate the Appellant’s derivative action. The committee determined that the majority shareholder had indeed misappropriated corporate funds. In its report to the board of directors, the committee recommended that the corporation either attempt to settle the lawsuit with the majority shareholder pursuant to terms suggested by the committee or, in the event the majority shareholder declined such terms, proceed with the litigation. The trial court subsequently approved the report, and the corporation settled the derivative litigation. Regarding the direct claim for breach of the Pre-Incorporation Agreement, the majority shareholder moved for summary judgment, and the trial court granted the motion. The Appellant filed an appeal to this Court. We affirm the trial court’s decision to approve the special litigation committee’s report. We reverse the trial court’s decision to grant summary judgment to the majority shareholder on the Appellant’s direct claim, as a genuine issue of material fact exists as to whether the Appellant’s claim is barred by the applicable statute of limitations.
State ex rel. Nicole Buss vs. James Flinn - E2005-00468-COA-R3-CV View
Anderson County - Nicole M. Buss (“Mother”) and James M. Flinn (“Father”) were divorced in 2002 by order of the Campbell County General Sessions Court. The final judgment of divorce designated Mother the primary residential parent of the parties’ minor child, and set the amount of Father’s child support arrearages as well as his current child support payment. After this Court remanded this case in the first appeal of this matter, the Campbell County General Sessions Court transferred the case to the Anderson County Chancery Court. Father later was found in civil contempt for willfully violating a direct order of the Chancery Court. Father appeals claiming the Chancery Court lacked subject matter jurisdiction to enforce the order of the Sessions Court and that the Chancery Court erred in finding him in civil contempt. We affirm.
In Re: Estate of Sherman Fetterman vs. Johnny King - E2005-02307-COA-R3-CV View
Scott County - This lawsuit involves a claim for attorney fees filed by the Estate of Sherman Fetterman (the “Estate”) against John King (“King”) and seeks payment for legal services provided by Sherman Fetterman (“Fetterman”) prior to his death. The legal services were provided over several years while Fetterman was assisting in King’s ultimately successful attempt to secure a landfill permit in Scott County, Tennessee. After the first trial, the Trial Court enforced a written contract between Fetterman and King and awarded the Estate the contract value of $800,000. We concluded in the appeal of that judgment that the contract was not enforceable for various reasons, and, therefore, we reversed the Trial Court’s judgment and remanded the case to the Trial Court to determine the quantum meruit value to King of Fetterman’s legal services. Following a second trial, the Trial Court awarded the Estate $350,000, plus prejudgment interest at 10%, bringing the total judgment to $587,424.54. We affirm the Trial Court’s judgment as modified.
John Roberts v. Donald Blevins, et al. - W2005-01906-COA-R3-CV View
Hardin County - The Chief Deputy Sheriff was dismissed by the Sheriff of Hardin County. As Chief Deputy he was not a member of the classified service and served at the pleasure of the Sheriff. The judgment finding otherwise is reversed.
Patricia Rounds v. Kathleen L. Caldwell - W2005-01139-COA-R3-CV
Shelby County - This is an action for damages for alleged legal malpractice in the handling of a lawsuit in a federal district court. This case was dismissed on motion for summary judgment because the cause of action accrued more than one year before suit was filed. We affirm.
Cases posted the week of 05/08/2006
Tammie C. Allen v. Sidney McPhee, et al. - M2005-00202-COA-R3-CV View
Rutherford County - State employee sued the State of Tennessee, Middle Tennessee State University, its Chancellor, and the Tennessee Board of Regents for gender-based discrimination in the form of a sexually hostile work environment and for retaliation in violation of the Tennessee Human Rights Act. Employee also sued the President of MTSU individually for sexual harassment and for retaliation in violation of the Tennessee Human Rights Act. The trial court granted the President of MTSU and the State’s motions for summary judgment on all issues. We affirm the decision of the trial court in all respects.
Victoria Walker v. Bruce Walker - M2005-01561-COA-R3-CV View
Davidson County - This appeal involves the dissolution of a seventeen-year marriage where the parties were granted a divorce on the basis of mutual inappropriate marital conduct. Husband appeals the trial court’s custody award, child support award, alimony award, and award of attorney’s fees. We affirm in part, reverse in part, and remand the case to the trial court.
City Of Gallatin v. Lyndell M. Webb - M2004-02468-COA-R3-CV View
Sumner County - This appeal involves a belated challenge to a reckless driving conviction in the Gallatin Municipal Court. Five years after the conviction, while facing sanctions under the Motor Vehicle Habitual Offenders Act, the motorist filed a petition in the Gallatin Municipal Court seeking to expunge or remove this conviction. The city court dismissed the petition, and the motorist appealed to the Circuit Court for Sumner County. The trial court, treating the petition as a petition for a common-law writ of certiorari, dismissed the petition because it had not been filed within ten days following the conviction as required by Tenn. Code Ann. § 27-5-101 (2000). The motorist has appealed. We affirm the dismissal of the petition.
In Re: Estate of Mary Reeves Davis - M2005-01281-COA-R3-CV View
Davidson County - The probate court awarded attorney’s fees to attorney retained by decedent’s conservator. On appeal, administrator of decedent’s estate contends the award was in error where estate disputes conservator’s accounting. We affirm.
Karen Johnson v. John Johnson - M2005-00759-COA-R3-CV View
Williamson County - In this appeal, the ex-wife challenges the trial court’s division of marital property, provision of child support and implementation of its own parenting plan regarding custody and visitation. We affirm the judgment of the trial court.
Antoinette Regnier v. Nashville & Davidson County - M2004-00351-COA-R3-CV View
(Concur) - View
Davidson County - Police officer filed a sexual harassment retaliation claim under the THRA against the Metropolitan Government of Nashville and Davidson County as a result of her transfer from an instructor at the Police Training Academy to patrol duty. A jury found that Metro had engaged in retaliation in violation of the THRA and awarded Plaintiff $150,000 in damages in addition to $110,180.70 in costs and attorney’s fees. Metro filed a motion for judgment as a matter of law, new trial, or remittitur, which was denied by the trial court. Metro appeals claiming that Plaintiff failed to prove, as a matter of law, that her transfer was an “adverse employment action” as required by the THRA or in the alternative, that the amount of the award should be reduced. The judgment of the trial court is affirmed.
Gail Pegues v. Shelby County Civil Service, et al. - W2005-02074-COA-R3-CV View
Shelby County - This case arises from the decision of the Shelby County Civil Service Merit Board to terminate the employment of Gail Pegues, a Shelby County Buyer-Program Specialist. The Shelby County Chancery Court upheld the decision of the Civil Service Merit Board to terminate Ms. Pegues employment. She appeals. We affirm.
Bob Patterson v. A.C. Wharton - W2005-02494-COA-R3-CV View
Shelby County - After the Board of County Commissioners for Shelby County passed the county’s 2003–2004 budget, the Trustee of Shelby County filed suit against the county mayor pursuant to section 8-20-101 et seq. of the Tennessee Code seeking additional personnel and funding for his department. After entering into a settleme