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Cases posted the week of 6/23/2008
George Wrondle Leamon vs. Sheila Annette
Jones Leamon - E2007-01604-COA-R3-CV View
Bradley County - Sheila Annette Jones Leamon (“Wife”) appeals from
a judgment of absolute divorce entered in the trial court. Wife
failed to “serve an answer,” see Tenn. R. Civ. P.
12.01, in response to the complaint for divorce filed by her
spouse, George Wrondle Leamon (“Husband”), which
complaint had been duly served on Wife. Husband filed a motion
for default judgment on June 5, 2007. The record reflects that
a copy of Husband’s motion for default judgment was served
on Wife by mail advising her of a hearing on the motion on July
5, 2007. The record reflects that a default judgment was entered
against Wife on July 22, 2007. A “Final Decree of Divorce” was
duly entered in the trial court. Copies of both documents were
duly served on Wife. Wife filed nothing in the trial court until
her notice of appeal was timely filed on July 24, 2007. There
is no merit in Wife’s appeal. Accordingly, we affirm pursuant
to the provisions of Court of Appeals Rule 10.
Gary W. Frye, et al vs. Carl Presley, et
al - E2007-00510-COA-R3-CV View
Monroe County - This case involves a dispute
between the owners of adjoining properties over the use of a
driveway. The dispute focuses on the easement rights of the
defendants, if any, to a right-of-way across the north edge
of the plaintiffs’ property
and a portion of the west edge. The court, following a bench
trial, made findings regarding the subject driveway. The defendants
appeal. We affirm in part and reverse in part.
Estate of Lorine Goodwin Hindmon vs. Jimmie R. Jones. et al -
E2007-00670-COA-R3-CV View
Bradley County - This appeal focuses on a dispute
as to whether the defendants, Jimmie R. Jones (“Mrs. Jones”)
and Larry D. Jones (“Mr. Jones”), are obligated
to indemnify the plaintiff, the Estate of Lorine Goodwin Hindmon
(“the Estate”),
for the value of property owned by Mrs. Hindmon that was foreclosed
upon and sold, the proceeds from which were applied against
a debt for which the Joneses were obligated. The trial court
held that the plaintiff had a right to indemnification from
the defendants and, as a consequence of that holding, granted
the plaintiff summary judgment. We affirm.
State of Tennessee, ex rel. Sharon L. Jones
vs. Martin Leon May - E2007-01431-COA-R3-CV View
Anderson County - Martin Leon May (“Father”)
appeals an order of the trial court directing him to pay interest
on a child support obligation. We hold that the doctrine of
res judicata precludes the imposition of interest in this case.
Accordingly, we reverse the order of the trial court entered
May 24, 2007, nunc pro tunc November 14, 2006.
First Southern Mortgage Corporation of
Tennessee v. Michael H. Weisser - M2007-01027-COA-R3-CV View
Williamson County - A mortgage broker
filed this breach of contract action against a real
estate investor based upon the investor’s failure
to pay a loan placement fee. The trial court granted
summary judgment in favor of the mortgage broker.
Because we find that there are genuine issues of material
fact, we reverse the decision of the trial court and
remand for further proceedings.
Donna Hatmaker Pierce vs Robert Jerrold Pierce - E2007-01403-COA-R3-CV View
Loudon County - In this post-divorce case, Donna Hatmaker Pierce (“Wife”) asked the court to find Robert Jerrold Pierce (“Husband”) in contempt for his purported failure to ensure that Wife received her proper share of his retirement benefits under the parties’ Marital Dissolution Agreement (“MDA”). The MDA awarded Wife “one-half of the value of husband’s retirement accounts with Boilermakers Union and National Guard” that accrued during the marriage. Wife argues that the phrase “retirement accounts with . . . National Guard” was intended to include Husband’s “Civil Service” retirement annuity, which he earned from a full-time weekday job that was connected to, but distinct from, his weekend National Guard duty at a nearby location. Husband points out that the National Guard retirement account and the Civil Service annuity are separate accounts, and argues that the MDA did not grant Wife any portion of the Civil Service account. After a bench trial, the court adopted Wife’s interpretation and awarded her one-half of the Civil Service account. Husband appeals. We affirm.
Greig Massey, et al vs. R.W. Graf, Inc., et al - E2007-02474-COA-R3-CV View
Separate Dissenting Opinion - View
Knox County - Plaintiffs brought this declaratory judgment action, asking the Court to declare that building restrictions on platted parcels of property from a common grantor applied to a non-platted parcel purchased by defendants from a subsequent grantor.
The Trial Court, responding to a summary judgment motion, made detailed findings of facts, and concluded that the “subject to” language in the deeds was ambiguous and construed the language against the inclusion of restrictions on any portion of the property that lay outside the platted subdivisions. Plaintiffs have appealed, and we affirm the Judgment of the Trial Court.
Reginol L. Waters v. Dept. of Corrections, Gail Ray, Commissioner and Glen Turner, Warden, HCCF - M2006-01453-COA-R3-CV View
Davidson County - Petitioner, an inmate with the Department of Correction, filed a declaratory judgment action alleging Tennessee Code Annotated § 40-25-143 had been unconstitutionally retroactively applied to his inmate trust account to reimburse the State for costs arising from the prosecution of Petitioner. In his complaint, Petitioner named the Warden of the Hardeman County Correctional Facility and the Commissioner of the Tennessee Department of Correction as Defendants. The trial court granted the Warden’s motion to dismiss and awarded summary judgment to the Commissioner. Petitioner filed a Rule 59 motion to alter or amend and a premature notice of appeal to this Court. The trial court dismissed Petitioner’s Rule 59 motion for lack of subject matter jurisdiction. Petitioner appeals. We vacate the order of the trial court dismissing Petitioner’s Rule 59 motion for lack of jurisdiction, and remand.
In Re Estate of Cecile A. Troutman - E2007-01959-COA-R3-CV View
Hamilton County - In this will contest case, the trial court granted the proponent’s motion for summary judgment and upheld the validity of the will. We find no genuine issue of material fact regarding Decedent’s mental capacity at the time of executing the will and undue influence. Therefore, we affirm the grant of summary judgment by the trial court.
Arista Records, LLC as the successor to Arista Records, Inc. v. Loren L. Chumley, in her capacity as Commissioner of Revenue for the State of Tennessee -
M2007-00834-COA-R9-CV View
Davidson County - This interlocutory appeal arises from Plaintiff/Taxpayer’s action against the Commissioner of Revenue under Tennessee Code Annotated § 67-1-1802 for a refund of taxes. The trial court granted Plaintiff’s motion to compel documents sought by Plaintiff in response to the Commissioner’s motion to dismiss based on the statutory limitations period prescribed in section 67-1-1802. We reverse.
Louis Ernest Cunningham v. Cheryl Lynne Cheatham Cunningham -
W2006-02685-COA-R3-CV View
Madison County - In this domestic dispute, Father appeals contending that the trial court erred in its retroactive treatment of child support and rehabilitative alimony, the assessment of interest, the accounting of payments made by Father to Mother, denying Father’s requested modification of his child support and alimony obligation, denying his requested modification of the parenting schedule and awarding attorney’s fees to Mother. We affirm in part and reverse in part and remand the case to the trial court for recalculation of the statutory interest and arrearages and a redetermination of whether the facts in the case support an upward deviation from the Child Support Guidelines.
Washington Mutual Bank, F.A. v. ORNL Federal Credit Union, Et Al. -
E2007-02421-COA-R3-CV View
Loudon County - In this appeal, we determine the priority between two recorded deeds of trust. Homeowners entered into a line of credit with a credit union secured by a recorded deed of trust on the homeowners’ home. The homeowners subsequently refinanced their home with a bank. The bank paid off the homeowners’ debt to the credit union, and recorded its own deed of trust securing its loan. At that same time, the loan and deed of trust was assigned to a second bank. Despite the payoff of the homeowners’ debt by the assignor bank, the first deed of trust to the credit union was never released, and the homeowners continued to draw on the line of credit. When the homeowners began having financial problems, the assignee bank discovered that the credit union had never released its deed of trust on the homeowners’ property because of a provision in the deed of trust stating that its release was conditioned upon the borrower requesting the cancellation of the line of credit. When the homeowners defaulted on both loans, the question arose as to which party’s deed of trust had priority. The trial court ruled in favor of the assignee bank on the basis that the credit union was equitably estopped from asserting its deed of trust because, at the time of payoff, the credit union did not follow its self-imposed practice of advising if any action other than payoff was required before release of the deed of trust. After careful review, we reverse because we conclude that the assignor bank had the means of discovering that payoff alone was insufficient to trigger the release of the deed of trust and because, under state statutory law, it had prior notice of all prerequisites to release the deed of trust as a result of the credit union’s registration of such deed.
Baird Tree Company, Inc. v. City of Oak Ridge, Et. Al. - E2007-01933-COA-R3-CV View
Anderson County - Baird Tree Company, Inc. (“Plaintiff”) was one of three bidders on a tree trimming and removal project submitted for bid by the City of Oak Ridge (“Oak Ridge”). Plaintiff was notified by letter of several deficiencies in its bid and Oak Ridge requested that the bid be supplemented with additional information. Plaintiff explicitly refused to do so and informed Oak Ridge that its bid was fine just the way it was. After the contract was awarded to a different company, Plaintiff filed suit claiming it should have been awarded the contract because it was the lowest bidder and further claiming that Oak Ridge violated the Tennessee Trade Practices Act, Tenn. Code Ann. § 47-25-101, et seq. Oak Ridge filed a motion for summary judgment claiming, among other things, that it was entitled to summary judgment because Plaintiff’s bid was invalid to begin with and the Trade Practices Act did not apply to this case. The Trial Court agreed and granted the motion for summary judgment. Plaintiff appeals raising numerous issues. We affirm.
Federal National Mortgage Association v. Glenna Robilio - W2007-01758-COA-R3-CV
View
Shelby County - From a trial de novo of an unlawful detainer action in circuit court, the defendant homeowner appeals, pro se, an award of summary judgment in favor of the purchaser at foreclosure. In a filing entered in general sessions – and considered by the circuit court – the defendant homeowner raised the defense of wrongful foreclosure, alleging the lender had failed to notify her of the default, of her opportunity to cure the default, and of the foreclosure sale itself. The plaintiff purchaser failed to address these points on motion for summary judgment, thus leaving open this factual question. Finding that there was a genuine issue of material fact bearing directly upon the plaintiff purchaser’s right to immediate possession of the property, we reverse the award of summary judgment and remand the matter.
Ivan D. Bradley v. Ginger Kaye Bradley - W2007-01962-COA-R3-CV View
Weakley County - This appeal arises from a divorce action. The trial court named Father primary residential parent of the parties’ minor child, and Mother appeals. We affirm.
Hanger Prosthetics & Orthotics East, Inc. v. William C. Kitchens, et al. -
E2007-01808-COA-R3-CV View
Knox County - This appeal involves the validity of a covenant not to compete. The employee, William C. Kitchens (“Kitchens”), became a certified orthotist after entering into the covenant with his employer Hanger Prosthetics & Orthotics East, Inc. (“Hanger”). After the employee quit his job and began providing orthotic services for a competitor, Hanger filed suit. Following a trial, the Trial Court determined that the covenant not to compete was enforceable and that Kitchens had breached the covenant. The Trial Court also determined that Kitchens’ new employer, defendant Choice Medical, Inc. (“Choice Medical”), had induced Kitchens to breach the contract in violation of Tenn. Code Ann. §47-50-109, and that an award of treble damages was appropriate. Judgment was entered against Kitchens and Choice Medical jointly for $240,182.00, and against Choice Medical for an additional $480,364.00. Defendants appeal raising numerous issues. We affirm.
Gibby Gilbert's Driving Range, LLC v. L.B. Austin IV, et al. - E2007-01497-COA-R3-CV View
Hamilton County - Lessor leased Lessee a portion of a tract of land for the operation of a golf driving range. The parties’ agreement provided that if Lessor received a bona fide offer to purchase the tract, Lessee would have a right of first refusal. Later, Lessor received an offer of purchase and notified Lessee of the amount offered, as required by the lease. Lessee declined the offer. Subsequently, the property was sold, but for an amount less than the amount originally offered. Before Lessee discovered that it had not been offered the right of first refusal as to the actual sale amount, Lessee executed an agreement terminating the lease in consideration of monies received from the Lessor. After learning of the actual sale price, Lessee filed suit against Lessor for breach of contract upon the ground, inter alia, that Lessor had failed to offer Lessee the right of first refusal as required under the lease. The trial court granted summary judgment in favor of the Lessor upon determining that the undisputed facts established that the execution of the lease termination agreement and Lessee’s acceptance of consideration under such agreement constituted an accord and satisfaction and that Lessee was thereby estopped from enforcing its previous rights under the lease, all such rights having been waived. Upon careful review of the record, we affirm the judgment of the trial court.
In Re: The Adoption of a Male Child Whose Name is D.B.S.M. - E2007-02663-COA-R3-PT View
Blount County - S.L.H.M. (“Mother”) and D.S.M. (“Husband”) filed a Petition to Terminate Parental Rights and For Adoption of Minor Child (“Petition”) seeking, in part, to terminate J.L.P.’s (“Father”) parental rights to the minor child D.B.S.M. (“the Child”). After a trial, the Trial Court entered an order finding and holding, inter alia, that clear and convincing evidence of grounds for termination of Father’s parental rights to the Child had not been proven, and that there was no clear and convincing evidence that it was in the best interest of the Child for Father’s parental rights to be terminated. Mother and Husband appeal to this Court. We hold that although clear and convincing evidence exists of grounds for the termination of Father’s parental rights, the record does not contain clear and convincing evidence that it is in the best interest of the Child for Father’s parental rights to be terminated. We, therefore, affirm the dismissal of the Petition.
Cases posted the week of 6/16/2008
Underwood Repair Service, Inc. v. Billy R. Dean, Peggy L. Dean and Dean, L.L.P. -
M2006-01367-COA-R3-CV View
Davidson County - This dispute arose over a strip of land located on the northern side of Underwood Repair Service’s property and the southern side of the Deans’ property. Underwood Repair Service asserted that it owned the disputed strip of land in fee simple, or, in the alternative, through adverse possession. The Deans filed a motion to dismiss both claims, and the trial court granted the motion to dismiss the adverse possession claim, finding Underwood Repair Service failed to allege facts sufficient to support that claim. The motion to dismiss the claim to fee simple ownership was initially denied, but it was then granted without prejudice to allow this appeal. After a thorough review of the record and applicable law, we conclude that the facts alleged in the complaint were sufficient to survive a motion to dismiss. Thus, we reverse the judgment of the chancery court.
Nationwide Assurance Company vs. Russell Brown, et al - E2007-02203-COA-R3-CV View
Knox County - against the insurance company on the ground that Rebecca Neal, who was riding as a passenger in a car driven by her boyfriend at the time of an accident, was not an “insured” as defined by the applicable policy. We agree with the trial court’s ruling that the policy’s definition of “insured” does not include Ms. Neal under the circumstances, and accordingly, her minor son, who was injured in the accident, is not excluded from coverage for his bodily injuries under the policy. The summary judgment of the trial court is affirmed.
Gary Flanary, on behalf of Himself and all other similaly situated vs. Carl Gregory Dodge of Johnson City, L.L.C. - E2007-01433-COA-R3-CV View
Washington County - This action charged the defendant with engaging in unfair and deceptive practices in violation of the Tennessee Consumer Protection Act, and engaging in the unauthorized practice of law. The Trial Court granted defendant summary judgment on the grounds that plaintiff failed to establish that he suffered a loss of money or property. On appeal, we affirm the summary judgment.
Perry H. Young vs. Hamilton County, Tennessee, et al - E2007-02317-COA-R3-CV View
Hamilton County - Perry H. Young (“Plaintiff”) was arrested in 2004 for driving while intoxicated and for violating the habitual motor vehicle offender law, among other things. Following his arrest, Plaintiff filed several civil lawsuits claiming false arrest and attacking the validity of the habitual motor vehicle offender law. Plaintiff claims that he filed in a separate lawsuit bearing docket number 05C538 one or more motions for default which were not set for hearing by the Trial Court. Plaintiff filed the lawsuit now on appeal challenging the Trial Court’s failure to set the motions for default for hearing and/or for otherwise failing to grant him a default judgment in the amount of $14 million. The Trial Court dismissed the lawsuit now before us after concluding that case number 05C538 was the proper forum for Plaintiff to address any procedural issues he has in case number 05C538. Plaintiff appeals, and we affirm.
In re: Estate of Berchie Cordelia Roberts, deceased Marie R. Wiser, Personal Rep v. State of Tennessee, Bureau of TennCare - M2006-01950-COA-R3-CV View
Smith County - The trial court held Tenn. Code Ann. § 30-20-310(b) does not provide a one-year limitations period on the TennCare Bureau’s efforts to obtain reimbursement of correctly paid nursing home benefits from a beneficiary’s estate pursuant to Tenn. Code Ann. § 71-5-116(c). Finding that such reimbursement is a statutory responsibility of the estate’s personal representative, we affirm.
Bridgestone/Firestone, Inc. v. Loren L. Chumley, Commissioner of Revenue, State of Tennessee - M2007-00813-COA-R9-CV View
Davidson County - The trial court denied Plaintiff/Taxpayer’s motion to compel discovery of documents that Defendant Department of Revenue asserted were not subject to disclosure under the Taxpayer Confidentiality Act. We granted permission for interlocutory appeal under Rule 9 of the Rules of Appellate Procedure. We vacate the trial court’s order and remand for further proceedings.
John Mark Atkins, surviving spouse and next of kin of Victoria H. Atkins, deceased, and as parent of Lauren Atkins and James Michael Field as parent of Kelly Field and Gregory Field v. Robert Clive Marks -M2006-02514-COA-R3-CV View
Montgomery County - This is an appeal from a post-judgment collection proceeding in which the judgment creditor sought to subject the assets of three trusts, of which the judgment debtor was a beneficiary and trustee, to satisfy a default judgment. The trial court found that the trusts were passive or dry and that the legal and equitable estates had merged, resulting in the judgment debtor’s holding fee simple title to the trust property. Debtor asserted that he had dissipated the assets of two trusts, but one trust still held income-generating farm land. The trial court ordered the farm land sold and also ordered further discovery to locate the assets of the other two trusts. We affirm in part, reverse in part, and remand.
Cases posted the week of 6/9/2008
State of Tennessee ex rel. Bradley County, Tennessee vs. #'s Inc., et al -
E2007-02494-COA-R3-CV View
The issue presented in this appeal is whether the purchaser of real property at a delinquent tax sale is entitled to recover delinquent property taxes paid on the property during the redemption period. We hold that funds expended to pay delinquent property taxes during the redemption period are lawful charges to preserve the value of the property pursuant to Tenn. Code Ann. § 67-5-2704, and therefore, the purchaser is entitled to recover these charges. Accordingly, the judgment of the trial court is reversed.
In Re J.M.N.; Jerry Clyde Nix ex rel. Jacy Marie Nix v. Amy Nix Cantrell -
W2007-00615-COA-R3-JV View
McNairy County - This case involves a non-custodial parent’s attempt to give consent for her fourteen-year-old daughter to get married. After the parties divorced, the father was designated the primary residential parent for the parties’ daughter, and the mother had regular visitation. When the daughter was fourteen years old, the father took her to the mother’s home for visitation. Without telling the father, the mother took the daughter and her eighteen-year-old boyfriend to the juvenile court below to seek permission to get married. At the juvenile court, the mother signed an affidavit consenting to the marriage. Based on the mother’s affidavit, the juvenile court judge signed an order granting the daughter and her boyfriend permission to marry. They immediately obtained a marriage license and got married. After learning of the marriage, the father filed a motion in the juvenile court asking it to set aside its order giving the daughter permission to marry. After a hearing, the juvenile court granted the motion to set aside. It also held that setting aside the prior order rendered the daughter’s marriage void. The mother now appeals. We affirm, concluding that the juvenile court did not abuse its discretion in setting aside its order giving the daughter permission to marry. Additionally, we note that the marriage is merely voidable, not void.
State of Tennessee, ex rel. Harriett Turner v. Napoleon Bryant - W2006-01463-COA-R3-JV View
Shelby County - This appeal arises out of a petition for civil contempt based on the failure to pay child support. The state, on behalf of the obligee mother, filed this petition for contempt against the obligor father for failure to pay child support. After a hearing, the juvenile court determined that the father was willfully underemployed and in contempt of court. The father filed a petition for a rehearing under the local rules of the juvenile court, seeking to introduce additional evidence on the issue of willful underemployment. The juvenile court treated the father’s petition as a motion to alter or amend under the Tennessee Rules of Civil Procedure and found that the father was not entitled to such relief. The father appeals, arguing that he should have been permitted to introduce additional evidence under the applicable juvenile court local rules, and that the juvenile court erred in finding him in contempt. We conclude that the trial court appropriately considered the father’s petition as a motion to alter or amend under the Tennessee Rules of Civil Procedure, and that the trial court did not abuse its discretion in the denial of the father’s petition, and therefore affirm.
Jesse Raymond Proctor, et al vs. Chattanooga Orthopaedic Group, P.C., et al -
E2007-02469-COA-R3-CV View
Hamilton County - Jesse Raymond Proctor and Janie Kay Proctor (“Plaintiffs”), husband and wife, sued Chattanooga Orthopaedic Group, P.C. and Center for Sports Medicine & Orthopaedics, LLC (“Defendants”) alleging violations of the Tennessee Consumer Protection Act of 1977, Tenn. Code Ann. § 47-18-101 et seq., concerning certain business practices of Defendants related to surgery performed on Mr. Proctor. Defendants filed a motion to dismiss. After a hearing, the Trial Court entered an order finding and holding, inter alia, that the gravamen of Plaintiffs’ claim sounded in alleged deceptive business practices under the Tennessee Consumer Protection Act of 1977; that the complaint was dismissed for failure to state a claim upon which relief could be granted; that Defendants’ affirmative defenses contending that Plaintiffs’ claims sound in medical malpractice should be denied; and that Plaintiffs were barred from amending their pleadings to raise medical malpractice claims. Plaintiffs appeal to this Court. We reverse and hold that the Tennessee Consumer Protection Act of 1977 can apply to the entrepreneurial, commercial, or business aspects of a medical practice, and since Plaintiffs’ complaint sounds in alleged deceptive business practices under the Tennessee Consumer Protection Act of 1977, Plaintiffs have stated a claim upon which relief could be granted.
In Re: Estate of Mary A. Grass - M2005-0641-COA-R3-CV View
Davidson County - This appeal involves the probate of a will. On appeal, the appellant claims that the Probate Court did not have jurisdiction to extend the statute of limitations to elect against the will and that the Agreed Order extending the statute of limitations was not effective. The appellant also claims that the surviving spouse cannot elect against the will because he waived his right to elect by signing a waiver and accepting the benefits of the bequests to him under the will. Finally, the appellant claims that the Probate Court erred in calculating the award of exempt property, year’s support, homestead exemption, and elective share. Finding that the Probate Court did not err in extending the statute of limitations, that the surviving spouse did not waive his right to elect against the will and that the Probate Court correctly awarded the homestead exemption, but finding that the Probate Court erred in calculating the award of exempt property, year’s support, and the surviving spouse’s elective share, we affirm in part, reverse in part and remand to the Probate Court to make recalculations.
Susan C. Lovvorn (now Reed) v. Dana L. Lovvorn - M2007-01834-COA-R3-CV View
Rutherford County - Ex-husband was incarcerated for criminal contempt based upon his failure to pay child support as ordered by the court. He appeals the trial court’s determination that he is not entitled to good time credit pursuant to Tenn. Code. Ann. § 41-2-111(b). We affirm the decision of the trial court that Tenn. Code Ann. § 41-2-111(b) does not apply to criminal contempt convictions arising from a civil matter.
Kenneth Ray Smith v. Julie Linn Smith - M2007-00439-COA-R3-CV View
Humphreys County - In this divorce action, Wife appeals the Trial Court’s division of marital assets and allocation of the income tax deduction for the parties’ three children to the Husband, the non-custodial parent. Finding no error, we affirm the judgment of the Trial Court.
Cases posted the week of 6/2/2008
Captain Louis J. Gillespie, Jr., v. City of Memphis - W2007-01786-COA-R3-CV View
Shelby County - The charter and code of ordinances of the City of Memphis set out certain specific provisions, including civil service protections, concerning the organization and operation of the City’s police department. This appeal arises from a suit brought by several high ranking members of the police force who allege that the City created a de facto rank in conflict with the City’s charter and ordinances. The trial court held that the City had impermissibly created a new rank and granted relief in the form of an injunction and a declaratory judgment. It, however, denied claims for damages pursuant to 42 U.S.C. § 1983 and an implied right of action under the City’s civil service rules. We find that the question regarding the appropriateness of the trial court’s awarding injunctive and declaratory relief is now moot and accordingly vacate that part of its decision. We affirm the trial court’s decision that monetary damages are not available.
Tanya Gay Pippin (Yearsley) vs. David C. Pippin, Jr. - E2007-01961-COA-R3-CV View
Hamilton County - Tanya Gay Pippin (“Mother”) and David C. Pippin (“Father”) were divorced in 2004 following a twelve year marriage. Mother was designated the primary residential parent for the parties’ two children. In June of 2005, Father filed a petition seeking to change custody. The petition was resolved by agreement following mediation and a revised permanent parenting plan and accompanying order were entered in January of 2006. Mother remained the children’s primary residential parent. In December of 2006, Father filed a second petition for change of custody. The Trial Court determined that Father had failed to establish that a material change in circumstances had occurred after entry of the January 2006 order. The primary reason for the Trial Court’s ruling was that all but one of Father’s alleged changes in circumstance either were known or reasonably anticipated when the January 2006 order was entered, and the one new change did not constitute a material change for purposes of changing custody. Father appeals raising various issues. We affirm.
Patti and James Weidman v. Brittany Renee Chambers - M2007-02106-COA-R3-PT View
Davidson County - Mother appeals the trial court’s decision terminating her parental rights, arguing that the trial court erred in finding that she abandoned the children and in finding that the conditions that led to the children’s removal from her custody persisted and were not likely to be remedied at an early date. Because we have concluded that the petitioners failed to provide sufficient notice regarding the abandonment grounds and did not present clear and convincing evidence of the other ground for termination, we reverse the decision of the trial court.
In The Matter Of: M.R. and C.R. - Charlie Robertson v. Tracy Mayes -
M2007-02532-COA-R3-JV View
Davidson County - This appeal involves a petition for custody of two minor children. The juvenile court named the father primary residential parent and the mother alternate residential parent. The mother appeals; we affirm.
Andrew H. Blackburn v. CSX Transportation, Inc. - M2006-01352-COA-R10-CV View
Davidson County - We granted an application for extraordinary appeal to determine whether the trial court erred when it granted a new trial in this case. The trial court granted the railroad a new trial based on insufficiency of the evidence, thereby setting aside an almost three million dollar verdict for plaintiff in this case under the Federal Employers’ Liability Act (“FELA”). Since we find that the federal standard requiring the verdict to be against the “clear weight” of the evidence governs and that the trial court erroneously applied the Tennessee standard, we vacate the judgment granting a new trial and remand the case for consideration of the motion for new trial in accordance with this opinion.
James B. Thomas, Jr., ex rel., Karen G. Thomas v. Elizabeth Oldfield,
M.D., et al. -
M2007-01693-COA-R3-CV View
Davidson County - The issue on appeal in this medical malpractice action is whether the hospital is vicariously liable for the acts or omissions of an emergency room physician. The trial court summarily dismissed all claims against the hospital finding that it was not vicariously liable for the conduct of the emergency room physician because he was neither its actual or apparent agent. We find the trial court correctly granted summary judgment to the hospital on the issue of actual agency because there are no material facts in dispute and the hospital is entitled to summary judgment on the issue of actual agency as a matter of law. We, however, find that material facts are in dispute concerning whether the hospital held itself out to the public as providing medical services; whether the plaintiff looked to the hospital rather than to the individual physician to perform those services; whether the patient accepted those services in the reasonable belief that the services were provided by the hospital or a hospital employee; and, if so, whether the hospital provided meaningful notice to the plaintiff at the time of admission that the emergency room physician was not its agent. Accordingly, we have determined the hospital was not entitled to summary judgment on the issue of apparent agency. Therefore, we remand to the trial court the issue of apparent agency for further proceedings consistent with this opinion.
Mike Parsons v. Jeff Huffman, et al. - W2007-00327-COA-R3-CV View
Tipton County - This appeal involves an
election contest filed by a losing candidate for county
executive. According to the plaintiff’s
complaint, the county election commission provided the minimum
number of voting machines required by state law. However,
the plaintiff alleged that the commission should have provided
more voting machines because long lines at some voting locations
caused many people to leave without voting. The trial court
dismissed the complaint for failure to state a claim, among
other things. The plaintiff appealed. We affirm.
Cases posted the week of 5/26/2008
Patricia Beth Strode v. Clarence Wilson Strode, Jr. - M2007-00265-COA-R3-CV View
Rutherford County - In this divorce action, wife appeals the trial court’s classification of a piece of rental property as husband’s separate property. Wife further argues that the trial court erred in calculating alimony and the amount awarded for wife’s attorney fees. We modify the award of attorney fees and affirm the decision of the trial court in all other respects.
William Troy Dillard v. Valerie Joann Dillard - M2007-00215-COA-R3-CV View
Dickson County - The trial court granted the father of a three year-old child a divorce on the ground of inappropriate marital conduct and named the mother as the child’s primary residential parent. The father argues on appeal that the trial court erred by relying on the mother’s long-time role as the child’s principal caretaker as the sole basis for its parenting arrangement decision. He also insists that he is the more fit primary residential parent for the child. The mother argues that the trial court acted well within its discretion by naming her the primary residential parent. After conducting our own independent analysis of the record, we conclude that there was no error in the trial court’s decision.
Mary Ann Harley v. Geary Falk - M2007-01095-COA-R3-CV View
Davidson County - A former husband appeals issuance of a restraining order in a proceeding on a petition for a protective order arguing that the trial court awarded unrequested relief. The appellant failed to provide a record of the hearing before the trial court. Absent a record, since we must assume the record would support the trial court, we affirm.
Joseph P. Rusnak, as Conservator for Flora Mae Oliver v. Gail Phebus -
M2007-01592-COA-R9-CV View
Rutherford County - The daughter of a nursing home resident used a power of attorney granted by her mother to sell the mother a joint tenancy with right of survivorship in a condominium the daughter owned, with the intention of spending down the mother’s liquid assets so she could qualify for Medicaid. A conservator was subsequently appointed to protect the mother’s interests, and he filed suit for the partition and sale of the condominium property. The mother died shortly thereafter. The court granted the request for partition, but stayed the sale of the property pending this interlocutory appeal. The daughter argues on appeal that Tennessee should follow the general rule which provides that the death of a joint tenant with right of survivorship extinguishes a pending suit for partition. We agree, and we reverse the trial court.
In the Matter of M.B. - M2007-02755-COA-R3-PT View
Robertson County - The trial court terminated the parental rights of the father of a three-year old boy on the ground of his conviction for aggravated robbery and sentence of sixteen years in prison. See Tenn. Code Ann. § 36-1-113(g)(6). The father argues on appeal that the crime he committed was a direct result of the failure of the Department of Children’s Services to make reasonable efforts to reunite him with his child and, thus, that his rights should not have been terminated. We affirm the trial court.
Michael Phillips v. Tennessee Board of Parole, et al. M2007-00573-COA-R3-CV View
Davidson County - This appeal involves the denial of a petition for a writ of certiorari. The appellant prisoner was denied a hearing in front of the appellee board of probation and parole. The prisoner thereafter filed a petition with the chancery court, seeking review of the board’s decision. The chancery court entered an order stating that, in order to avoid dismissal of his petition, the prisoner was required to file, among other documents, a summons for each defendant, with a copy of the petition for each summons to be issued. The prisoner failed to file the summonses, and the chancery court dismissed the petition without prejudice. The prisoner appeals the dismissal, alleging numerous federal constitutional violations. We affirm, finding that the chancery court properly dismissed the petition without prejudice for failure to file a summons.
Bill G. Grindstaff, et al vs. John P. Bowman, et al - E2007-00135-COA-R3-CV View
Blount County - This litigation arises out of a collision between a vehicle operated by the plaintiff Bill F. Grindstaff and one driven by the defendant John P. Bowman. Mr. Grindstaff and his wife, the plaintiff Connie Grindstaff, timely filed suit against the defendant Bowman. Some 28 months after the accident, the plaintiffs sought to amend their complaint to add Hardee’s Food Systems, Inc. – the employer of the defendant Bowman – as an additional party defendant. After an order was entered allowing the amendment, Hardee’s filed a motion for summary judgment predicated upon the bar of the one-year statute of limitations. The trial court granted the motion. The plaintiffs appeal, contending that (1) the discovery rule saves their cause of action against Hardee’s and, in any event, (2) the claim was timely filed pursuant to the provisions of Tenn. Code Ann. § 20-1-119(a) (Supp. 2007). We affirm.
Sandi C. Hubbard vs. Myron L. Hubbard - E2007-00849-COA-R3-CV View
Blount County - In this post-divorce case, Myron L. Hubbard (“Husband”) filed a “Motion” asking the trial court to suspend his alimony obligation to Sandi C. Hubbard (“Wife”). Wife responded with a “Motion to Dismiss and to Increase Alimony,” in which she asserted that: 1) Husband’s “Motion” should be dismissed for failure to state a claim; 2) Husband’s alimony obligation should be increased; 3) Wife should be awarded attorney fees; and 4) Husband should be held in contempt for a missed alimony payment. At the conclusion of a bench trial, the court denied Husband’s “Motion,” ruling that he had failed to prove a material change in circumstances that would justify suspending alimony. The court took no action on Wife’s “Motion.” Husband appeals. Wife argues that the trial court’s judgment was not an appealable final order, as it “adjudicates fewer than all the claims.” Tenn. R. App. P. 3(a). We agree with Wife. Accordingly, we dismiss the appeal.
Stacy Cagle Davis vs. Robert F. Davis - E2007-01252-COA-R3-CV View
Loudon County - After more than eighteen years of marriage, Stacy Cagle Davis (“Wife”) sued Robert F. Davis (“Husband”) for divorce. The case was tried and the Trial Court entered a Final Decree declaring the parties divorced, approving the parenting plan submitted with regard to the parties’ minor child, ordering Husband to pay child support, dividing the marital property and marital debts, and denying Husband’s request for alimony. Husband appeals the denial of his request for alimony to this Court. We reverse the denial of alimony to Husband, award Husband rehabilitative alimony of $800 per month for 36 months, award Husband attorneys’ fees at trial and on appeal, and remand to the Trial Court for a determination of the proper amount of attorneys’ fees. The remainder of the Trial Court’s Final Decree is affirmed.
Tabitha Ann Cain v. Mark Edward Cain - M2006-02259-COA-R3-CV View
Robertson County - Mother appeals trial court granting Father primary residential custody without making the findings about alleged abuse required by Tenn. Code Ann. § 36-6-106(a)(8). Based upon the circumstances of this case, including the fact that this was a divorce in which the court was required to adopt a permanent parenting plan, we conclude that the trial court was not required to make those findings.
Applying the factors relevant to a determination of the residential schedule of minor children, we affirm the trial court’s judgment.
Sherrie Engler, et al. v. Karnes Legal Services - W2006-02443-COA-R3-CV View
Madison County - This appeal involves the Tennessee saving statute, Tenn. Code Ann. § 28-1-105. The plaintiffs’ lawsuit was dismissed without prejudice for failure to prosecute when their attorney failed to appear at a hearing. Three months after the dismissal, the plaintiffs’ attorney filed a motion seeking relief from the order of dismissal, citing the saving statute, along with an amended complaint. The trial court considered the motion under Rule 60 but did not address the applicability of the saving statute. The court refused to set aside the order of dismissal upon finding that the attorney’s failure to attend the hearing did not constitute excusable neglect. The plaintiffs appeal. We reverse and remand for further proceedings.
Janet E. Billingsley-Travis v. James Kenneth Travis - M2006-02305-COA-R3-CV View
Rutherford County - This appeal concerns an action to increase child support. The trial court ordered Father to pay child support in the amount of $900 per month, which is an upward deviation from the Child Support Guidelines, and $2,000 per year, at a minimum, for private school tuition. Father contends on appeal that the trial court erred in ordering an upward deviation of his child support obligation and that he should not be ordered to make yearly tuition payments. We find the trial court’s upward deviation from the Child Support Guidelines to be supported by the record but find the additional requirement of $2,000 per year for tuition to be excessive. Therefore, we reverse in part and affirm in part the decision of the trial court.
Brim Holding Company, Inc. v. Province Healthcare Company - M2007-01344-COA-R3-CV View
Davidson County - The issue on appeal in this contract dispute is whether the defendant breached its indemnification obligations under the terms of a stock purchase agreement. The trial court found that the plaintiff was entitled to be reimbursed for payment of a claim specifically identified under the indemnification provisions of a stock purchase agreement. Significantly, the trial court found that the indemnity provisions in the stock purchase agreement anticipate the specific loss and assure that it will be paid by the defendant. The defendant contends that the plaintiff has already received reimbursement for that payment through the post-closing working capital adjustment and the plaintiff, therefore, is not entitled to reimbursement under the indemnification provisions. Finding no error, we affirm.
Jay S. Gorban v. David Harris - M2007-01908-COA-R3-CV View
Montgomery County - This is a dispute between a homeowner and the contractor he hired to build a sunroom onto his home. We have concluded that the evidence does not preponderate against the trial court’s award of a judgment in favor of the homeowner for 60% of the requested damages, based upon its allocation of 40% of the fault to the homeowner.
David Goff, et ux, et al. v. Elmo Greer & Sons
Construction Co., Inc. -
M2006-02660-COA-R3-CV View
White County - This appeal involves a jury’s award of punitive damages. The construction company entered into a contract with the State of Tennessee to widen a portion of a highway. The homeowners entered into a contract with the construction company allowing the construction company to place excess materials generated from the highway project on the homeowners’ property. In exchange, the homeowners would receive compensation based on the cubic fill area, and the company would fill and grade that portion of the homeowners’ property. The project required that the construction company conduct extensive blasting near the homeowners’ house and vehicles. One of the homeowners became concerned when he witnessed the construction company placing various garbage items and tires on his property near the fill area. After three years, the construction company finished the project. The homeowners brought suit, alleging that the company failed to pay the amount due under the contract and caused damage to their house due to the blasting. The complaint also alleged that the company buried certain items, including tires, on the property which constituted an environmental tort. The homeowners’ amended complaint stated a cause of action in nuisance and also sought an award of punitive damages in the amount of $1 million dollars. The jury returned a verdict in favor of the homeowners for the nuisance claim in the amount of $3,305.00 and found that punitive damages should be imposed on the construction company. The jury found in favor of the construction company for the environmental tort claim. After the second phase of the trial, the jury returned an award of $2 million in punitive damages. The trial court remitted the award to $1 million, the amount of the homeowners’ ad damnum. The construction company appeals, and we reverse and remand in part and affirm in part.
Joey Conner v. Carmen Conner - W2007-01711-COA-R3-CV View
Haywood County - This appeal arises from a post-divorce proceeding wherein the minor child’s mother, contending that there had been a material change in circumstances, sought a change of custody. After several days of hearings, the trial court transferred custody from the father to the mother. We find that the trial court applied an incorrect legal standard and also find that the final hearing below was prematurely terminated. We therefore vacate and remand for further proceedings.
Philip Q. Smith, M.D. vs. Moquey Kseal Marquross - E2007-02297-COA-R3-CV View
Hamilton County - This action arose out of plaintiff’s purchase of an aircraft from defendant on Ebay. The Trial Court ruled that defendant denied plaintiff his right to inspect the goods pursuant to Tenn. Code Ann. §47-2-513, and plaintiff was not required to purchase the aircraft. On appeal, we affirm the Judgment of the Trial Court.
Kathy Huber, et al vs. Douglas Marlow, et al - E2007-01879-COA-R9-CV View
Knox County - In this interlocutory appeal of a medical malpractice case, the issue presented is whether the trial court erred in granting partial summary judgment to the employer because it could not be held vicariously liable for the actions of its nonparty employee when the statute of repose had run as to the nonparty employee before the plaintiffs amended their complaint to include allegations based on the nonparty employee’s actions. We hold that because the statute of repose extinguished the plaintiffs’ cause of action against the nonparty employee, the employer cannot be held liable for allegations of medical negligence based solely on the actions of the nonparty employee. The trial court’s partial summary judgment is affirmed.
Valley View Mobile Home Parks, LLC v. Layman Lessons, Inc. -
M2007-01291-COA-R3-CV View
Sumner County - Tenant appeals the Circuit Court’s dismissal of its appeal of the Judgment and Order of the General Sessions Court granting Landlord possession of leased premises. The basis of the Circuit Court’s dismissal was Tenant’s failure to comply with the Court’s second Order requiring Tenant to post a bond. Finding error in the application of Tenn. Code Ann. § 29-18-130, we reverse the decision of the Trial Court and remand this case for further proceedings in accordance with this opinion.
City of Jackson, Tennessee ex rel Jim Campbell as Building Official for the City of Jackson v. State of TN ex rel. Paula Flowers as Commissioner of the Dept. of Commerce & Insurance -M2006-01995-COA-R3-CV View
Davidson County - The City of Jackson appeals the trial court’s dismissal of its action against the Commissioner of Commerce and Insurance seeking reimbursement for building demolition expenses under Tenn. Code Ann. § 68-102-122. Finding that sovereign immunity prohibits monetary claims against the state when brought seeking a declaratory order under either the Declaratory Judgment Act, Tenn. Code Ann. § 29-14-101 et seq., or the Administrative Procedures Act, Tenn. Code Ann. §4-5-225, we affirm.
Mike Settle v. Tennessee Department of Correction, Commissioner Little -
M2007-01781-COA-R3-CV View
Davidson County - Appellant, a prisoner in the custody of the Tennessee Department of Correction, challenges the trial court's order dismissing his Petition for Writ of Certiorari. The record reveals that the court reached its decision in a lawful manner. We affirm.
BMG Music v. Loren L. Chumbley, in her capacity as Commissioner of Revenue for the State of Tennessee - M2007-01075-COA-R9-CV View
Davidson County - The trial court granted Plaintiff/Taxpayer’s motion to compel discovery of documents that Defendant Department of Revenue asserted were not subject to disclosure under the Taxpayer Confidentiality Act. We granted permission for interlocutory appeal, and reverse.
Clark Power Services, Inc. vs. Katie O. Mitchell, et al - E2007-01489-COA-R3-CV View
Sullivan County - The issue presented in this case is whether the trial court abused its discretion by not granting the defendants’ motion to set aside a default judgment entered against them. After careful review, we find the default judgment was improperly granted and, therefore, should have been set aside. Accordingly, this case is remanded to the trial court for a hearing on the sworn account filed by the plaintiff.
Tony E. Oglesby vs. Life Care Home Health, Inc. - E2007-01514-COA-R3-CV View
Bradley County - Tony E. Oglesby (“Plaintiff”) sued Life Care Home Health, Inc. (“Defendant”) for breach of contract. After a bench trial, the Trial Court entered an order finding and holding, inter alia, that the parties had a binding contract, that the contract is not ambiguous, that the word “less” in the contract means “to exclude”, and that under the contract Plaintiff was entitled to a judgment in the amount of $2,329,638.20. Defendant appeals to this Court. We affirm.
Madison County, Tennessee v. Tennessee State Board of Equalization, et al. -
W2007-01121-COA-R3-CV VIew
Madison County - Several taxpayers appealed Madison County’s valuation of the taxpayers’ limited partnership property to the Tennessee State Board of Equalization. The administrative law judge scheduled a pre-hearing conference, with notice being sent to the taxpayers and Madison County. Some confusion arose, and no representative for Madison County attended the conference. The administrative law judge entered a default judgment against Madison County, and Madison County timely filed a petition to reconsider with the administrative law judge. The administrative law judge took no action on the petition, and after twenty days, the petition was deemed denied by operation of law. Madison County then failed to appeal the administrative law judge’s denial of the petition to reconsider within thirty days to the Assessment Appeals Commission. The Assessment Appeals Commission thereafter issued the Official Certificates of Assessment. Madison County filed a motion to reconsider the Official Certificates with both the administrative law judge and the Board of Equalization, seeking relief under Rule 60.02 of the Tennessee Rules of Civil Procedure. The administrative law judge denied the motion, but the Board of Equalization granted relief and remanded the matter to the administrative law judge. The taxpayer defendants then filed a petition with the Board of Equalization, challenging the Board’s order setting aside the default judgment. The taxpayers filed a petition for review in chancery court in Madison County. Thereafter, the Board held a hearing, reversed its prior order, and reinstated the default judgment against Madison County. Madison County filed a petition for review in chancery court in Madison County pursuant to Tenn. Code Ann. § 4-5-322, seeking review of the Board’s reinstatement of the default judgment. The chancery court granted the taxpayers’ motion for summary judgment. Madison County appeals, and we affirm.
Cases posted the week of 5/19/2008
Xerox Corporation v. Digital Express Graphic, LLC - M2006-02339-COA-R3-CV View
Davidson County - This is an appeal from summary judgment granted in favor of the lessor in an action to collect the accelerated unpaid balance of $191,945.47 allegedly due under a lease agreement for digital printing equipment. After careful review of the record, we find that the lessee failed to meet its burden of proving the existence of a dispute of material fact that would preclude summary judgment. We affirm the judgment of the trial court in all respects.
David Luke Harvey v. Dickson County, TN and Tom Wall in his Capacity as Sheriff -
M2007-01793-COA-R3-CV View
Dickson County - An inmate at the Dickson County Jail who was attacked by another inmate filed this action against co-defendants, Dickson County and the Sheriff of Dickson County to recover damages for his personal injuries. The trial court summarily dismissed the complaint against both defendants without stating the legal grounds for its conclusion. The plaintiff contends the defendants breached their duty to prevent foreseeable harm because the defendants left a mop in the jail, which was not secured or locked away, and the defendants knew or should have known that a mop could be used by an inmate as a weapon. Penal institutions have a duty to use reasonable and ordinary care to prevent foreseeable attacks on inmates by other inmates. For a penal institution to be liable for injuries resulting from inmate-on-inmate assaults, the general rule is that the institution must have had prior notice of an attack. The defendants supported their motion for summary judgment with affidavits stating that they had no notice and no reason to believe that the plaintiff was likely to be assaulted. This shifted the burden to the plaintiff to establish that a dispute of fact exists concerning whether the defendants knew of or had reason to anticipate such an attack. The evidence presented by the plaintiff fails to create a dispute of this material fact. Accordingly, we affirm.
Holly Thrasher v. Riverbend Stables, LLC, Steven Daniel, and Michael Daniel -
M2007-01237-COA-R3-CV View
Davidson County - Plaintiff appeals the summary dismissal of her complaint arising out of the death of her Tennessee Walking Horse while the horse was being trained at Riverbend Stables, LLC. Plaintiff filed suit claiming the horse died as a result of the defendants’ negligence and gross negligence. The trial court dismissed the complaint upon a finding that the claims of negligence were barred by the exculpatory provisions in the parties’ written agreement and Plaintiff had failed to make out a prima facie claim of gross negligence. Finding the exculpatory agreement enforceable and the evidence fails to establish a genuine issue of material fact concerning the claims for gross negligence or recklessness, we affirm.
Cory O. Johnson v. Ross Bates, Warden, WTSP Disciplinaray Board -
W2007-02293-COA-R3-CV View
Lauderdale County - This appeal involves a petition for writ of certiorari filed by an inmate. Following the investigation of a homicide at the prison, disciplinary charges were filed against the petitioner. The prison disciplinary board held a hearing and found the petitioner guilty of the charges. The petitioner was indicted by a grand jury and charged with second degree murder, but the case was later dismissed via nolle prosequi. The petitioner then filed his petition for writ of certiorari challenging the prison disciplinary board’s actions at the hearing, and the trial court dismissed it as untimely. The petitioner appeals. We affirm.
State of Tennessee vs. J.R. - E2007-01775-COA-R3-CV View
Cocke County - J.R. was adjudged delinquent by the Trial Court for committing incest in violation of Tenn. Code Ann. § 39-15-302 (2006). The issue on appeal is whether a blood relationship of brother and sister under Tenn. Code Ann. § 39-15-302 no longer exists after the parental rights of the siblings’ parents are terminated and one of the siblings later is adopted. The Trial Court held that the siblings retain the status of brother and sister for purposes of the incest statute even if their parents’ parental rights are terminated and one of the siblings later is adopted. We agree and affirm the judgment of the Trial Court.
State Farm Fire & Casualty Co. vs. David Stone, et al - E2007-02343-COA-R3-CV View
Blount County - State Farm Fire & Casualty Co. filed a “Complaint for Declaratory Relief” with respect to the claim of David Stone seeking damages arising out of the death of his wife, Rhonda Stone, who was killed by the alleged negligent driving of an uninsured motorist. At the time of the accident, the Stones had a personal liability “umbrella” insurance policy with State Farm, which provided $1 million in personal liability coverage above and beyond the Stones’ underlying insurance policies, including their automobile liability insurance policy. Their umbrella policy does not, by its language, include uninsured motorist (“UM”) coverage. However, Mr. Stone argues that UM coverage should be read into their umbrella policy because the Stones did not reject such coverage in writing, which Mr. Stone says is required by the applicable statute. State Farm argues that the statute in question, Tenn. Code Ann. § 56-7-1201(a) (2000), applies only to automobile insurance policies and does not impose the rejection-in-writing requirement on umbrella policies. Based upon the parties’ “Agreed Stipulations,” the lower court, at a bench trial, agreed with Mr. Stone’s interpretation of the statute. We disagree with the interpretation placed upon the statute by Mr. Stone and the trial court. Accordingly, we reverse.
Rickie B. Clayton v. Rosie B. Clayton - W2007-01079-COA-R3-CV View
Shelby County - This appeal arises out of divorce proceedings. The parties were married for fourteen years and had two children. The trial court declared the parties divorced based on stipulated grounds; divided the marital estate; designated the mother primary residential parent and the father alternate residential parent; and ordered the father to pay the mother $200 per month in alimony in futuro. The father appeals. We affirm.
Josh W. Newell v. Jeff Maitland, et al. - W2007-01704-COA-R3-CV View
Gibson County - This appeal involves a negligence action filed after the plaintiff was charged with child rape. The plaintiff sued the sheriff’s deputy and Department of Children’s Services employee who interviewed the alleged victim; the sheriff; the county mayor; the county itself; a Department of Children’s Services supervisor; and the District Attorney General. The plaintiff contended that if a “child protective team” had interviewed the victim, he would not have been arrested and charged with child rape. The trial court dismissed the claims against the state employees for lack of jurisdiction, and it dismissed the claims against the county employees pursuant to the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101, et seq. The sheriff’s deputy was also named as a defendant in his individual capacity, and the trial court granted his motion for summary judgment. The plaintiff appeals. We affirm.
R. Linley Richter, Jr., v. Seymour S. Rosenberg - W2007-01486-COA-R3-CV View
Shelby County - This appeal involves a dispute between two attorneys over a contingency fee generated from a client’s case. The younger attorney worked as an associate at the senior attorney’s law firm, and both parties worked on the client’s case. When the case concluded, the associate sued the senior attorney, claiming that the parties had agreed to equally share the fee. The senior attorney testified that the associate had volunteered to work on the case for free. He further testified that pursuant to the parties’ arrangement, if he chose to pay the associate, he could unilaterally decide how much the associate’s services were worth. The trial court found that the parties had agreed to equally share the attorney’s fee generated in the case, and it awarded the associate one-half of the fee. For the following reasons, we affirm the trial court’s decision.
Beverly J. Farmer v. First Tennessee Bank, N.A., et al. - W2006-02016-COA-R3-CV View
Shelby County - This appeal involves concurrent findings of a special master and a trial court. The bank foreclosed on property and the owner filed suit, alleging wrongful foreclosure. The chancellor referred the matter to a special master for the determination of two factual issues. The special master found that the account in question was in arrears at the time of the foreclosure, and that no payments were made that were not properly credited to the account. The chancellor adopted the findings of the special master and granted the bank’s motion for summary judgment. The owner appeals, and we affirm.
Cases posted the week of 5/12/2008
In the Matter of: B.N.T. and K.A.P. - W2007-01627-COA-R3-PT View
Gibson County - This is a termination of parental rights case. Mother/Appellant appeals the Order of the Gibson County Juvenile Court terminating her parental rights to her two minor children. Specifically, Appellant asserts that the grounds of abandonment, persistence of conditions and failure to substantially comply with the permanency plans are not supported by clear and convincing evidence in the record, and that termination of her parental rights is not in the best interests of the children. Because we find clear and convincing evidence in the record to support the grounds of failure to substantially comply with the permanency plans, and persistence of conditions, and clear and convincing evidence that termination is in the best interests of the children, we affirm.
Catherine Smith Bowling, et al vs. Todd Jones, et al - E2007-01581-COA-R3-CV View
Anderson County - Plaintiff homeowners sued defendant residential building contractors for breach of a home construction contract upon allegations of defective workmanship and abandonment of contract. The trial court entered judgment in favor of plaintiffs and awarded actual damages in an amount based upon the finding that the house was of no value. The trial court also awarded damages under the Tennessee Consumer Protection Act upon a finding that the defendants violated the Act by willfully and knowingly misrepresenting that they were bonded. Upon appeal, we find no error in the judgment of the trial court, and accordingly, the judgment is affirmed in all respects.
Lori Schmank vs. Sonic Automotive, Inc., et al - E2007-01857-COA-R3-CV View
Bradley County - The plaintiff brought this claim under the Tennessee Consumer Protection Act (“TCPA”) against an automobile dealer, its owner, and Automobile Protection Corporation (“APCO”), alleging that the sale of an anti-theft product called “Easy Care ETCH,” which she purchased with vehicles from the dealer, violated the TCPA. We affirm the trial court’s ruling that this action, filed over four years after the plaintiff’s first purchase and nearly three years after her second purchase, was not timely brought under the applicable one-year statute of limitations. Accepting the plaintiff’s allegations in her complaint as true, we do not agree with her argument that the application of the discovery rule operates to toll the limitations period under the facts presented, and therefore, we affirm the trial court’s dismissal of the complaint on the pleadings pursuant to Tenn. R. Civ. P. 12.02(6) and 12.03.
Gary L. Carroll vs. Yucatan Resorts S.A.de C.V., et al - E2007-01807-COA-R3-CV View
Knox County - Gary L. Carroll (“Plaintiff”) was a managing agent for Yucatan Resorts, S.A. de C.V., Yucatan Resorts, Inc., Yucatan Investment Corp., and/or Resort Holdings International, Inc. (collectively referred to as the “Yucatan Defendants”). As a managing agent, Plaintiff sold investment opportunities to various clients, including defendant Burl Henderson and his wife, Ruth Henderson. With Plaintiff’s assistance and unbeknownst to Mr. Henderson, Ruth Henderson changed the beneficiary on her investments from Mr. Henderson to the Hendersons’ only child. Plaintiff claims that after Ruth Henderson died and Mr. Henderson learned that his wife had changed beneficiaries with Plaintiff’s assistance, Mr. Henderson contacted various representatives of the Yucatan Defendants with the goal of getting Plaintiff fired. After Plaintiff’s contractual relationship with the Yucatan Defendants was terminated, Plaintiff sued Henderson and the Yucatan Defendants. The Trial Court dismissed Plaintiff’s claims against Yucatan Resorts, S.A. de C.V. on the basis of ineffective service of process and later entered a monetary judgment against the remaining Yucatan Defendants. The Trial Court also granted Mr. Henderson’s motion for summary on Plaintiff’s claims for intentional interference with a business relationship and inducement to breach of contract in violation of Tenn. Code Ann. § 47-50-109. Plaintiff appeals. We affirm the dismissal of the lawsuit against Yucatan Resorts, S.A. de C.V., and vacate the grant of summary judgment to Henderson.
Danny Ray Meeks v. Tennessee Department of Correction - M2007-01116-COA-R3-CV View
Hickman County - An inmate at the Turney Center Industrial Prison filed this Petition for Common Law Writ of Certiorari in the Chancery Court of Hickman County. The inmate alleges in the petition, inter alia, that the Prison Disciplinary Board deviated from the Uniform Disciplinary Procedures and, as a result, he was erroneously found guilty of refusing to submit to a drug screening. After reviewing the administrative record and the penalties imposed by the Prison Disciplinary Board, the trial court granted the Department of Correction’s motion for judgment on the record, thereby dismissing the inmate’s claim. We affirm.
Shearer Rebecca Agee v. David Steven Agee - W2007-00314-COA-R3-CV View
Crockett County - This is an appeal from the trial court’s modification of a child’s custody due to a material change in circumstances. Mother/Appellant appeals the trial court’s change of custody of her minor child to Father/Appellee. Specifically, Mother/Appellant asserts that the evidence does not support the finding of a material change in circumstances and also raises issues concerning trial court’s reliance on certain evidence. Finding no error by the trial court, we affirm.
Gay N. Carr v. Scott McMillan - M2007-00859-COA-R3-CV View
Davidson County - The maternal grandmother of a five-year-old child filed a petition seeking visitation pursuant to Tenn. Code Ann. § 36-6-306. She contended she had served as a primary caregiver for a substantial period of time following the death of the child’s mother, that cessation of their relationship could interrupt the daily needs of the child, and that the loss of their relationship would cause substantial harm to the child. The child’s father opposed the petition. Following a full evidentiary hearing, the trial court granted the petition and awarded the grandmother seventy-eight days of visitation annually. Father appealed contending the trial court erred in finding that the severance of the relationship between the child and his grandmother would result in present danger and substantial harm to the child or that it was likely to occasion severe emotional harm to the child. We affirm the trial court’s determination that the grandmother is entitled to visitation.
Betty Rose v. Cookeville Regional Medical Center; Jeffrey J. Gleason, M.D.; and Tina Ayers - M2007-02368-COA-R3-CV View
Putnam County - This appeal arises from a claim for defamation brought by a terminated hospital employee against several parties, including a doctor who had allegedly made slanderous remarks about her work performance. The trial court granted the doctor’s motion to dismiss for failure to state a claim under Tenn. R. Civ. P. 12. Following the trial court’s dismissal of the case against the doctor, the plaintiff moved to alter or amend the order of dismissal and also moved for the trial judge’s recusal due to an alleged business relationship between the judge’s son and the defendant doctor. We agree that the complaint fails to state a claim for slander because it does not specify sufficiently the time and place of the alleged statements. We further conclude that the plaintiff’s motion to recuse was properly denied. Accordingly, we affirm the trial court’s dismissal and remand for further proceedings.
William Cason v. George Little, et al. - W2007-01910-COA-R3-CV View
Lake County - Appellant, a prisoner in the custody of the Tennessee Department of Correction, filed a pro se petition for common law writ of certiorari, seeking review of the prison disciplinary board’s findings. Appellees filed a motion to dismiss for lack of subject matter jurisdiction based upon Appellant’s alleged failure to execute his petition in compliance with the statutory requirements found at T.C.A. §§ 27-8-104 and 27-8-106. Finding that Appellant had failed to have his petition notarized, the trial court granted the motion to dismiss. Appellant appeals. Finding no error, we affirm.
Harold Wayne Harris vs. Sherry Edwards,
et al - E2007-01772-COA-R3-CV View
Rhea County - Plaintiff brought
this action to void two deeds executed by the deceased
shortly before he died. Plaintiff sought to void the deeds on the
grounds that the grantees of the deed exerted undue influence on
deceased in obtaining the deeds and that deceased was not competent
to make the deeds. In a bench trial, the chancellor held that plaintiff
did not prove undue influence and that the deceased was fully competent
to contract and execute the deeds. On appeal, we affirm the Judgment
of the trial court.
Crystyna Brooke Saunders vs. Jeremy Stephen Saunders, Sr., et
al - E2007-01544-COA-R3-CV View
Hamilton County - The paternal grandparents
have appealed the ruling of the trial court denying them
visitation, on the grounds that the court had previously
ordered visitation for these grandparents, and that order
was res judicata and could not be altered by the trial
court. On appeal, we affirm the trial court’s
ruling.
Audrey L. Linkous, et al vs. Hawkins
County Deputy Daniel Lane, et al - E2007-01054-COA-R3-CV View
(Separate Concurring/Dissenting Opinion) - View
Hawkins County - This wrongful death action was
brought by the widow of deceased, who committed suicide in the
county jail. The trial court granted summary judgment to defendant
county on the grounds that the undisputed evidence established
that the defendant’s suicide was not
foreseeable. On appeal, we affirm.
IN THE MATTER OF E.B.H., JR. - M2007-02615-COA-R3-PT View
Davidson County - Father appeals the termination
of his parental rights to his seventeen-year-old child.
The trial court found that his rights should be terminated
pursuant to Tenn. Code Ann. § 36-1-113(g)(6) due to
the fact that Father was confined in prison as a result of
a criminal act under a sentence of more than ten years imposed
when the child was under eight years of age. The trial court
also found that termination was in the child’s best
interests. Finding no error, we affirm.
Jeff Finchum and Michelle Finchum d/b/a Shockwave Customs v. Tina Davenport Patterson d/b/a Shelter Insurance Company - M2007-00559-COA-R3-CV View
Bedford County - This is an insurance case. The plaintiffs operated a business engaged in the installation of automobile accessories and stereo equipment. The defendant insurance agency sold to the plaintiffs a commercial fire insurance policy that excluded coverage for loss from theft and stated that only the insurance company was authorized to amend the policy. While the policy was in effect, thieves broke into the plaintiffs’ store and stole or damaged equipment and merchandise. The insurance company denied coverage The plaintiffs filed a lawsuit in general sessions court against the defendant insurance agency, alleging that the defendant had represented to them that the policy covered loss caused by theft, that they relied on this representation to their detriment, and, therefore, that the defendant insurance agency should be estopped from relying on the exclusion of theft in the policy. After a judgment for the defendant, the plaintiffs appealed to the circuit court. The circuit court held for the plaintiffs, based on estoppel. The defendant insurance agency now appeals. We reverse. We hold first that equitable estoppel is not applicable against the insurance agent because the insurance company, not the agent, denied coverage under the policy. Second, the plaintiffs are charged with knowledge of the terms of the insurance contract they signed, including the provision indicating that only the insurance company could amend the terms of the policy, which clearly excluded losses from theft.
Mike J. Urquhart v. State of Tennessee, Department of Safety - M2006-02240-COA-R3-CV View
Davidson County - A man who contracted with a storage facility to clean out abandoned storage units in exchange for permission to keep the contents discovered $40,000 in cash in one of the units. He turned it over to an attorney, who deposited it in an interest-bearing account and reported the find to the police. Shortly thereafter, it was learned that he had cleaned out the wrong unit because of an error by the storage company. The State subsequently seized the money, believing it to be traceable to illegal drug transactions. The finder filed an administrative claim for the money’s return, contending that he was a bonafide purchaser for value and that the State had no right to seize property he had legitimately acquired. The administrative law judge ruled that the money was properly seized and forfeited it to the State. The administrative ruling was appealed to the chancery court, which ruled in favor of the State. We affirm.
Cases posted the week of 5/5/2008
Joe Allen Pennington v. Sonya Rene Pennington - M2007-00181-COA-R3-CV View
Davidson County - In response to the father’s petition for modification of custody and the mother’s counterpetition for modification of custody, the trial court found a material change in circumstances and made the father the primary residential parent. On appeal, the mother assigns error to several evidentiary rulings by the trial court, to the trial court’s factual findings of abuse, and to the trial court’s decision concerning custody. We find that the trial court erred in excluding testimony from the stepfather, the alleged abuser of the child, and reverse and remand for further proceedings.
Emile V. Hamm, M.D. and Angela Hamm vs. Scott D. Hodges, D.O., Chattanooga Orthopaedic Group, P.C., et al - E2007-01626-COA-R3-CV View
Hamilton County - Plaintiff, a physician, brought a malpractice action against several defendant doctors and medical groups for damages which he averred resulted from negligent medical treatment. Defendants moved for summary judgment and filed their personal affidavits that their medical treatment met the standard of care in the communities where they practiced. Plaintiff answered and filed his personal affidavit disputing that defendants met the community standard of care. The Trial Court held that plaintiff’s affidavit was deficient in that it did not comply with the statutory requirements to make his testimony admissible and granted summary judgment. On appeal, we affirm the Trial Court.
Bart Kincade v. Jiffy Lube - W2007-00995-COA-R3-CV View
Shelby County - Appellant appeals the trial court’s grant of Appellee’s motion for involuntary dismissal. Appellant brought suit against Appellee under Tennessee Code Annotated § 24-5-111 for damage to his vehicle’s engine allegedly caused by Appellee’s negligent performance of an engine flush procedure. Following Plaintiff/Appellant’s proof, the trial court granted an involuntary dismissal in favor of Defendant/Appellee. Appellant appeals. Finding no error, we affirm.
Dottie Diana Slaughter v. Henry Slaughter, Jr. - W2007-01488-COA-R3-CV View
Shelby County - This is a divorce action in which the trial court declared the parties divorced pursuant to § 36-4-129(b) without attributing fault to either party, divided the parties’ property, awarded Wife alimony in futuro in the amount of $1500 per month, ordered Husband to pay for Wife’s health insurance, and awarded Wife her attorney’s fees as alimony in solido. Husband appeals the division of property, the award of alimony, and the award to Wife of her attorney’s fees. We affirm.
Nicole Loren Baker, et al. v. Virginia Louise Smith - W2007-002623-COA-R3-PT View
Shelby County - Petitioners, Father and his wife, filed a petition to terminate Mother’s parental rights on the grounds of abandonment for failure to pay child support, persistence of conditions, and severe child abuse, and for adoption of child by Father’s wife. The trial court granted Mother’s motion for directed verdict at the close of Petitioners’ proof and dismissed the petition. Petitioners appeal. We affirm.
Travelers Casualty & Surety Company of America as subrogee of Smith Mechanical Contractors, Inc. vs. Lawyer's Title Insurance Corporation, et al - E2007-01138-COA-R3-CV View
Washington County - Travelers Casualty & Surety Company of America (“Travelers”) as subrogee of Smith Mechanical Contractors, Inc. (“Smith Mechanical”) sued Lawyer’s Title Insurance Company (“Lawyer’s Title”) and First Tennessee Bank National Association (“the Bank”) seeking, among other things, a judgment declaring a mechanic’s lien filed by Smith Mechanical to have priority over a deed of trust held by the Bank with regard to real property located in Johnson City, Tennessee. Lawyer’s Title and the Bank filed a motion to dismiss or for summary judgment. After a hearing, the Trial Court entered an order finding and holding, inter alia, that Travelers’ complaint was barred under the doctrine of res judicata; that the complaint was barred under the compulsory counterclaim rule; that Travelers never acquired Smith Mechanical’s mechanic’s lien rights; and, that the Bank had recorded a payment bond (“Performance Bond”), which operated to discharge Smith Mechanical’s lien from the real property. Travelers appeals to this Court. We affirm.
O'Rane M. Cornish, Sr. v. Harrah's Entertainment, Inc. - W2007-00782-COA-R3-CV View
Shelby County - This appeal involves the lower court’s dismissal of a case on the basis of forum non conveniens. The plaintiff, a resident of Shelby County, brought suit in circuit court in Shelby County. The plaintiff alleged that he drank a glass of cranberry juice that contained a dead fly at one of the defendant’s restaurants, located in Tunica County, Mississippi. From that incident, the plaintiff alleges that he suffered emotional and physical harm. The defendant’s answer requested that the court dismiss on the basis of forum non conveniens, contending that the more appropriate forum was a circuit court in Tunica County, Mississippi. After a hearing, the trial court dismissed the claim on the basis of forum non conveniens. After the plaintiff filed a motion to reconsider, the trial court entered an order denying the motion and setting out its findings concerning its decision to decline jurisdiction. The plaintiff appeals, and we reverse and remand the case for further proceedings.
Scarlett Reagan Aslinger Sampsel vs. Joel Lee Sampsel - E2007-01331-COA-R3-CV View
Morgan County - Scarlett Reagan Aslinger Sampsel (“Mother”) and Joel Lee Sampsel (“Father”) were divorced in 2005. Mother was designated as the primary residential parent of the parties’ son (“the Child”), who currently is 14 years old. Approximately eight months after the divorce was granted, Father filed a petition for a change in custody claiming there had been a material change in circumstances and that designating Father as the primary residential parent was in the Child’s best interest. Following a trial, the Trial Court determined that due to the Child’s post-divorce behavioral problems and decline in grades, there had been a material change in circumstances and that it was in the Child’s best interest to designate Father the primary residential parent. Mother appeals claiming the Trial Court erred in both of these determinations. We affirm.
Carl Williams Rogers, M.D. v. State Volunteer Mutual Insurance Company -
M2007-01599-COA-R3-CV View
wILSON cOUNTY - This case involves an endorsement to a medical malpractice insurance policy. The physician insured under the policy brought a declaratory judgment action seeking rescission of the endorsement based upon a mutual mistake of fact. We affirm the decision of the trial court dismissing the physician’s case for failure to state a claim upon which relief can be granted.
Cases posted the week of 4/28/2008
Sharon M. Keisling v. Daniel Kerry Keisling,
Francisco H. and Billie A. Guzman - M2007-01102-COA-R3-CV View
Wilson County - The trial court awarded a fee to the Guardian
ad Litem in this matter and ordered appellant responsible for payment of
the fee. Mother appeals contending that, due to misconduct of the GAL the
fee should be forfeited. We affirm the trial court’s award of the
fee and, in the absence of a transcript or statement of the evidence, deem
this to be a frivolous appeal.
Jefferson C. Pennington, III & Dan
Alan Goostree v. Boundry, Inc., South St., Inc., Chumi, LLC, Lewis Invest.,
Inc., & James A. Lewis - M2006-02650-COA-R3-CV View
Davidson County - This appeal involves the fees awarded to a special master. In the underlying
litigation, shareholders in two corporations and members in a limited liability
company filed a lawsuit seeking dissolution of the entities. The trial court
appointed a special master to investigate facts pertinent to judicial dissolution
and intervention to prevent future losses. The special master’s investigation
included reviewing shareholder voting agreements and other legal documents.
During the course of the investigation, the special master acted as a mediator
and conducted settlement discussions. After filing his report with the trial
court, the special master applied for approval of his fees. Some of the parties
objected to the fees, but the trial court nevertheless approved the fee application.
Several parties appeal, arguing inter alia that the trial court approved an
excessive hourly rate and awarded fees for services that were outside the scope
of the order of reference. We find that the special master’s mediation
efforts were outside the scope of the special master’s authority, and
reverse the fee award for those activities. The remainder of the trial court’s
decision is affirmed.
In the Matter of: S.H. - M2007-011718-COA-R3-CV View
Davidson County - Father appeals the trial court’s
termination of his parental rights to his three-year old daughter. Based
upon the record that included persistent violent behavior directed at
the child’s mother, we conclude the trial court did not err in terminating
Father’s rights.
Robertson County Board of Education v. Mary Jane Redmond and
the Robertson County Education Association -
M2006-01019-COA-R3-CV View
RObertson County - The appellant was a guidance
counselor who was transferred to a teaching position, and she
filed a grievance under the locally negotiated agreement between
the local board of education and the local education association.
The only relief she requested in her grievance was reinstatement
to a guidance counselor position. The Board opposed submission
of the grievance to arbitration, and the trial court held that
the director of schools’ decision to transfer a teacher
is not subject to binding arbitration under the agreement. Because
the appellant has retired, we find this appeal is moot. Accordingly,
we dismiss the appeal.
James Michael Brown v. Heidi Sue (Brown) Lamoureux -
M2007-00123-COA-R3-PT View
Cheatham County - Father appeals the trial court’s
modification of parenting time. Subsequent to the parties’ divorce,
Mother was designated as the primary residential parent. Father filed
a petition seeking to modify such designation, which the trial court
granted. In the order, Father was designated as the child’s primary
residential parent, and the issue regarding Mother’s parenting
time was expressly reserved pending family counseling. Five months
later, Mother filed a petition seeking to be designated as the primary
residential parent of the child. Following a hearing on her petition,
the trial court denied her request to be the primary residential parent,
but it granted Mother ninety-seven days of parenting time. Father appeals
contending the trial court erred by granting Mother any relief. We
have determined that the first of the two orders, the one in which
the court reserved the issue of Mother’s parenting time, was
not a final order because all issues had not been resolved. Therefore,
the first order was an interlocutory order, which was subject to modification
by the trial court without proof of a material change of circumstance.
Finding no error with the trial court’s decision to award Mother
ninety-seven days of parenting time, we affirm.
Bridgett Hill, et al v. NHC Healthcare/Nashville, LLC, et al -
M2005-01818-COA-R3-CV View
(Separate Concurring Opinion filed by Clement, J.) View
Davidson County - The administrators of the estate
of a woman who died after being transported by ambulance from
a nursing home to a hospital filed a wrongful death suit which
named the nursing home and the ambulance service as defendants.
The nursing home responded with a motion to compel arbitration,
citing a provision in the admissions agreement which the decedent
had signed, requiring both parties to submit any disputes to arbitration
and to waive their rights to jury trial. The trial court found
the arbitration clause to be unconscionable and denied the motion.
The nursing home then filed a direct appeal to this court pursuant
to Tenn. Code Ann. § 29-5-319. We affirm.
Patricia Ambrose v. Blythe Batsuk - M2006-01131-COA-R3-CV View
WIlliamson County - This case arose from a low-speed
collision in which the plaintiff’s car was rear-ended by
the defendant’s car. The plaintiff claimed that the accident
caused her to suffer neck and shoulder injuries, resulting in
considerable pain and suffering. The defendant conceded fault
for the accident, but denied that the accident had caused the
plaintiff any actual injury. The plaintiff attempted to prove
causation by offering the deposition testimony of the primary
care doctor who had treated her. The trial court excluded the
doctor’s testimony because he was unable to state that the
accident more probably than not caused the plaintiff’s physical
injuries. The jury returned a verdict for the defendant and the
trial court entered judgment thereon. We affirm.
John B. Green, Jr. v. Billy H. Smith, Jr. - M2006-01729-COA-R3-CV View
Bedford County - The issues on appeal pertain to
the exclusion of evidence concerning the condition of tires on a
vehicle involved in a one-car accident. An injured passenger filed
this action against the driver alleging that he sustained injuries
as a result of the defendant’s negligent operation of the
vehicle. At trial, the plaintiff attempted to introduce evidence
that the tires on the defendant’s vehicle were so worn that
the defendant’s failure to conduct proper maintenance, replacing
the tires, was a proximate cause of the accident. The trial court
excluded the evidence on two grounds. One, evidence concerning the
maintenance of the vehicle was outside of the pleadings. Two, the
causal connection between the condition of the tires and the wreck
required testimony of an expert. At the conclusion of the trial,
the jury returned a verdict for the defendant. Finding no reversible
error, we affirm.
In Re: Adoption of C.B.F. - E2007-02279-COA-R3-PT View
Knox County - This is a parental rights termination case. The Petitioners, the mother of the child at issue and the mother’s husband, brought a petition to terminate the biological father’s parental rights on the ground of abandonment. We hold that the evidence in the record supports, clearly and convincingly, the trial court’s dual findings of (1) willful abandonment by the biological father and (2) that it was in the child’s best interest to terminate father’s parental rights. Accordingly, we affirm.
Willard Frederick Williams vs. Noelle Lesley Williams -
E2007-01747-COA-R3-CV View
Bradley County - In this divorce case, the husband
raises two issues: (1) whether the trial court erred in classifying
as marital property an annuity purchased during the marriage with
the husband’s separate funds when the annuity listed the wife
as the owner, and (2) whether the trial court erred by ordering him
to pay an excessive amount of alimony. The wife argues that the trial
court’s alimony award was insufficient and that the trial court
erred by awarding each party one-half of the annuity’s value
instead of the entire amount to her. We find no abuse of the trial
court’s discretion in its alimony award, its classification
of the annuity as marital property, and its division of the marital
estate, and consequently, we affirm the judgment of the trial court.
We remand the case for the trial court to determine and award the
wife a reasonable attorney’s fee on appeal because of the wife’s
financial need and other equitable factors.
Brian E. Harris, M.D. vs. {rovident Life and Accident Insurance
Company, et al -
E2007-00157-COA-R3-CV View
Hamilton County - Dr. Brian E. Harris (“Doctor”),
the insured, brought this action for breach of contract and on the
basis of various torts. He alleged that UnumProvident Corporation (“Insurance
Company” or “the company”) had wrongfully canceled
his disability policy and retroactively rejected his disability claim.
The trial court granted Insurance Company summary judgment. The court
found that Doctor had filed his suit outside the applicable limitations
periods. Doctor appeals, claiming that his suit was timely filed. We
affirm.
John David Franklin vs. Olga DeKlein-Franklin -
E2007-00577-COA-R3-CV View
Hamilton County - This is a divorce case. John
David Franklin (“Husband”) challenges the trial court’s
judgment on several bases. He contends (1) that the award of transitional
alimony to Olga DeKlein-Franklin (“Wife”) was error;
(2) that the court erred in treating the entirety of two stock
brokerage accounts as marital property; (3) that the court erred
in failing to treat Husband’s disability insurance proceeds
as his separate property; (4) that the special master erred in
excluding evidence of the premarital value of Husband’s
medical practice; (5) that the division of marital property is
not equitable; and (6) that he is entitled to a new trial because
of irregularities in the proceedings below. Wife also argues that
the division of marital property is not equitable. So much of
the trial court’s judgment as awards Wife transitional alimony
is hereby reversed. In all other respects, the judgment is affirmed.
In Re J.D.C.,J.Y.M.C., and A.M.C. - E2007-02371-COA-R3-PT View
Washington County - This is a termination of
parental rights case. The father of the three minor children at
issue appeals an order terminating his parental rights. We hold
that the evidence in the record supports, by clear and convincing
evidence, the trial court’s dual findings of (1) abandonment
due to willful failure to provide support and (2) substantial
noncompliance with permanency plans. The State concedes that the
trial court’s finding of “persistent conditions” is
not supported by the evidence; accordingly, the judgment is modified
to delete this finding. Father concedes that he has failed to
provide a suitable home. Clear and convincing evidence supports
the trial court’s finding that it is in the best interest
of the children to terminate father’s parental rights.
As modified, the judgment of the trial court is affirmed.
Kenneth Eugene Thomas vs. Mina Sue Thomas - E2007-00798-COA-R3-CV View
McMinn County - The issue presented in this case
is whether the trial court erred in dismissing a divorce complaint
filed by the husband, a Tennessee resident, against his wife,
a Washington resident, after a previous ruling by a Washington
court granting the parties a legal separation and retaining jurisdiction
of the case. Upon review, we conclude that it was within the trial
court’s discretion whether to exercise its jurisdiction
and hear this matter, but that in order to have a factual basis
for the exercise of its discretion, the trial court erred in summarily
dismissing the case and should have conducted an evidentiary hearing.
Donald W. McCuthcheon, et al vs. TND Associates, L.P., et al -
E2007-01073-COA-R3-CV View
Roane County - A jury awarded the plaintiff homeowners
judgment against their residential building contractor for damages
sustained by the plaintiffs when the slope upon which their home
was constructed failed. The defendant contractor appeals, arguing
that the trial court abused its discretion by allowing an expert
witness to testify outside his area of expertise and by allowing
another witness to testify as an expert when the plaintiff had
failed to identify him as a witness before trial. Upon careful
review of the record, it is our determination that the trial court
did not abuse its discretion in the admission of the testimony
of these witnesses. Accordingly, we affirm the judgment of the
trial court.
Morris Properties, Inc. Realtors v. Norris Johnson, et al. -
M2007-00797-COA-R3-CV View
Davidson County - Morris Properties, Inc. (“Plaintiff”),
a Tennessee real estate company, filed suit against four individuals
and two corporations (“Defendants”), attempting to allege
tortious interference by all defendants, and breach of contract, breach
of fiduciary duty and negligence by some defendants. The trial court
dismissed the complaint, in accordance with Tenn. R. Civ. P. 12.02(6),
for failure to state a claim. Plaintiff subsequently filed simultaneous
motions to 1) alter or amend the judgment and 2) amend the complaint.
Both motions were denied. Plaintiff appeals. We affirm.
Rodney Howard Wright v. Tennessee Peace Officer Standards and
Training Commission -
M2006-00123-COA-R3-CV View
Davidson County - Former police officer Rodney
Howard Wright (“Wright”) challenges the decision
by the Tennessee Peace Officer Standards and Training Commission
(“the POST Commission” or “the commission”)
decertifying him on the basis of his guilty plea in a domestic
violence case that – after his plea was entered – was
dismissed and expunged. Wright contends that the POST Commission’s
reliance on his guilty plea as the basis for his decertification
violates his rights under the judicial diversion statute. We
agree. Accordingly, we reverse.
Wanda Jo Waddell Cole v. John Duane Cole - M2006-00425-COA-R3-CV View
Sumner County - In this divorce action, Wife
contends the trial court inequitably divided the parties’ marital
assets, and she also contends her award of alimony in futuro
was insufficient. After thirty-four years of marriage to Husband,
Wife filed a complaint for divorce. The trial court granted
Wife a divorce on the grounds of Husband’s adultery, divided
the parties’ limited marital assets, and awarded Wife
alimony in futuro of $600 per month. Wife appeals asserting
two issues. One, that the trial court erred by not including
Husband’s $310,000 life insurance policy as a marital
asset. Two, that the court’s award of alimony was insufficient.
We have determined that the life insurance policy was not a
marital asset because it had no cash value. We also find no
error with the award of alimony in futuro. Therefore, we affirm.
John Hohman v. James A. Town and Business Evaluation & Appraisal,
Inc. -
M2008-00585-COA-R10-CV View
Williamson County - This application for an
extraordinary appeal concerns whether a trial court should consider
matters outside the pleadings in ruling on a motion to dismiss
for lack of personal jurisdiction and improper venue pursuant
to Tenn. R. Civ. P. 12.02(2) and (3). The trial court declined
to consider matters outside the pleadings and denied the defendants’ motion
to dismiss. Because the trial court should have considered the
affidavits and other documents submitted by the parties in support
of and in opposition to the motion to dismiss, we grant the
application, vacate the trial court’s order denying the
motion to dismiss, and remand the case to the trial court for
further proceedings on the motion.
James Carson v. Waste Connections of Tennessee, Inc. -
W2006-02019-COA-R3-CV View
Shelby County - This is the second appeal of
a damage award for negligence. The plaintiff owned a house with
a detached carport. During a delivery, the defendant company’s
driver backed the delivery truck into one of the four columns
supporting the carport structure, causing it to partially collapse.
The plaintiff homeowner filed a lawsuit against the defendant
company, alleging negligence and seeking damages. Liability
was conceded and a trial proceeded on the amount of damages.
There was disputed testimony on the condition of the roof structure
of the carport before the defendant’s driver hit it.
After the trial, the trial court found that the carport did
not have a “roof” at the time of the accident, and
so it deducted the cost of the “roof” of the carport
from the damage award. The defendant company appealed. In the
first appeal, we found that the record did not clearly indicate
the trial court’s findings underlying the award of damages,
and remanded the case for clarification. On remand, the trial
court explained its damage award. The defendant company appeals
again in light of the trial court’s clarification of the
record. Finding that the preponderance of the evidence does
not weigh against the trial court’s findings, we affirm.
Joseph Amos, Jr. et al. v. Christina Taylor, et al -
M2006-02170-COA-R3-CV View
WIlliamson County - The matters at issue arise
out of an action filed by four co-tenants against numerous other
co-tenants to quiet title to the real property pursuant to doctrine
of title by prescription. The trial court granted the plaintiffs’ motion
for summary judgment, thereby quieting title in the plaintiffs.
The