The following Opinions are available for download:
Cases posted the week of
09/29/2003
James Corbin v. Tom Lange
Co. - M2002-01162-COA-R3-CV View
Davidson County - This
case involves a noncompetition agreement. An employee signed a noncompete
agreement when he began working for an employer. The employee resigned and
began working for a competitor of the employer. The employee sought a
declaratory judgment that the noncompete agreement was unenforceable.
Approximately eighteen months into the two-year noncompetition period, the
trial court issued a ruling that the agreement was not enforceable. The
employer appeals. We affirm, finding that neither the training provided to the
employee nor the employee's relationship with the employer's customers created
a business interest that warranted the protection of a noncompetition
agreement.
Beverly Wilson v. Thomas Wilson
- M2002-02286-COA-R3-CV View
Jackson County - This
appeal arises from an order of the trial court distributing 25% of the increase
in value of the husband's business to the wife as marital property. We affirm.
Jodell Dunkin v. David Dunkin -
M2002-01899-COA-R3-CV View
Davidson County - This
is a post-divorce dispute concerning the custody of Kaylea Jodell Dunkin ("the
child") (DOB: July 1, 1994), the child of these litigants. The non-custodial
parent, David H. Dunkin ("Father"), filed a petition seeking to enjoin the
child's mother, Jodell L. Dunkin ("Mother"), from relocating with the child to
Montana. Following a hearing, the trial court found that there was no
reasonable purpose for the proposed move and that the relocation would not be
in the best interest of the child. The trial court then denied Mother's request
to relocate. We affirm.
Conchita Johnson vs.
Greg Johnson - E2003-00130-COA-R3-CV View
Sevier County - The
Trial Court entered Judgment for back child support, ordered increase in
continuing child support, and awarded custodial parent attorney's fees. Father,
who sought change of custody, appealed. We affirm.
Tom Henderson vs. City of Chattanooga -
E2002-02165-COA-R3-CV View
Hamilton
County - Five police officers employed by the Chattanooga Police
Department were involved in a physical altercation with Torris Harris
("Harris") which ended with Harris' death. Harris allegedly had ties to the
local Crips gang. Pursuant to the Public Records Act, a local news station
requested photographs of these five officers as well as a sixth officer who had
prepared the official police report. After the request was denied by the City
of Chattanooga, the news station filed a petition seeking to compel production
of the photographs. After a trial, the Trial Court concluded the photographs
were "public records" and the undercover officer exemption found in the Public
Records Act did not apply to these officers. The Trial Court also held that
disclosing the photographs would not place the officers or their families at
substantial risk of harm and, therefore, would not violate the officers'
constitutional right to privacy. After ordering production of the photographs,
the Trial Court refused to award attorney fees incurred by the successful
petitioners. We affirm.
Cases posted the week of 09/22/2003
Doris Cannon vs. Peninsula Hospital -
E2003-00200-COA-R3-CV View
Knox
County - Criminal proceedings against the Plaintiff involving a
controlled substance were dismissed upon the Plaintiffs agreement to pay the
costs. She thereupon filed this action for damages for malicious prosecution,
which was dismissed on motion for summary judgment because the Plaintiff could
not prove a necessary element: that the prosecution was terminated in her
favor, because she agreed to pay the costs of the criminal prosecution. We
affirm.
Donald Xiques vs. Charme Knight -
E2003-00435-COA-R3-CV View
Knox
County - Plaintiff sued defendant claiming defendant divulged
confidential information to FBI and that agency refused to hire him, due to
defendant's action, which violated his constitutional right to privacy. The
Trial Court ruled that plaintiff was estopped to maintain action because he had
been unsuccessful in a prior action in the federal court against the same
defendant. On Appeal, we affirm.
Rocky
Hitson v. Dept. of Correction - M2001-02903-COA-R3-CV
View
Davidson County -
This appeal involves a dispute between a prisoner and the Department of
Correction regarding a disciplinary hearing held at the Northeast Correctional
Complex in Mountain City. The prisoner filed a petition for writ of certiorari
in the Chancery Court for Davidson County alleging that he had been
substantially prejudiced by the Department's failure to follow its disciplinary
rules. The trial court, relying on Sandin v. Conner, 515 U.S. 472, 115 S. Ct.
2293 (1995), granted the Department's Tenn. R. Civ. P. 12.02(6) motion and
dismissed the petition. The petitioner has appealed. We have determined that
the trial court's order should be vacated and remanded for further
consideration in light of Willis v. Tennessee Dep't of Corr., ___ S.W.3d ___,
2003 WL 22019138 (Tenn. Aug. 27, 2003).
In
Re: Martha Blanks Maxwell - M2002-01654-COA-R3-CV
View
Warren County - The
niece of an elderly woman who suffered a stroke, followed by memory loss and
confusion, petitioned the court to be appointed as her aunt's conservator. The
trial court granted the petition as well as the conservator's plan to have her
aunt moved to an assisted living environment. There, the woman's condition
improved, and the guardian ad litem moved the court to consider whether it was
advisable to revoke the conservatorship and allow her to return to her own
home. After a hearing, the court terminated the conservatorship. The former
conservator appeals, and we affirm.
Denicia
Wills v. Russell Wills - M2002-02167-COA-R3-CV View
Sumner County - This case
involves an appeal from an order of the trial court modifying the father's
child support obligation and denying the father's request for change of
custody. We affirm in part, reverse in part, and remand.
Raymond Anthony vs. Christine Rodgers -
W2002-01240-COA-R3-CV View
Shelby
County - This case began as a petition for dependency and neglect but
evolved into a custody dispute between the mother and father of a child born
out of wedlock. Originally, the mother appealed to the Circuit Court of Shelby
County which stayed the order of the Juvenile Court granting custody to the
father. The father appealed to this Court pursuant to Rule 10 of the Rules of
Appellate Procedure and we remanded this case to the Circuit Court for entry of
an order transferring the appeal to this Court as the Circuit Court lacked
subject matter jurisdiction. For the following reasons, we affirm the decision
of the Juvenile Court.
Steve/Lisa Howell vs.
Glen Tucker - W2002-02220-COA-R3-CV View
Decatur County - This
is a construction case on appeal for the second time. The homeowners contracted
for the construction of a house. The contractor began but did not complete
construction of the house. The homeowners sued the contractor and were awarded
a judgment. The contractor filed a notice of appeal. His appeal was dismissed
by this Court. Meanwhile, the contractor had filed a motion with the trial
court to set aside the trial court's order awarding a judgment to the
homeowners. The trial court denied this motion and affirmed its original
judgment. The contractor filed a second notice of appeal. We confine this
appeal to a review of the trial court's disposition of the contractor's motion
to set aside the original judgment and affirm, finding that the trial court did
not abuse its discretion in overruling the motion to set aside.
William
Hyneman vs. Amy Hyneman - W2002-01546-COA-R3-CV
View
Shelby County - This
is a divorce case. The husband filed a petition for divorce, and the wife filed
a counter-claim for divorce on the grounds of inappropriate marital conduct and
adultery. The husband initially admitted to inappropriate marital conduct and
denied adultery. The husband later amended his pleadings to admit to adultery.
Soon thereafter, the husband moved the trial court to grant a divorce to the
wife based on the husband's admitted inappropriate marital conduct and
adultery. The wife objected, arguing that a divorce decree could not be entered
at that time because no evidentiary hearing had been held and there was no
stipulation by the parties. The trial court granted the husband's motion and
entered a decree granting a divorce to the wife. The wife now appeals. We
reverse, concluding that, absent a mutual stipulation agreed upon by the
parties, pursuant to Tennessee Code Annotated §§ 36-4-114 and
36-4-129, the trial court must conduct a hearing prior to entering a final
decree of divorce. Therefore, we remand to the trial court for further
proceedings.
George Phillips vs. Paul
Skelton - E2002-02681-COA-R3-CV View
Hawkins County - When
Joseph Housewright died in 1898, his seven children orally agreed to a division
of their father's real property. No deeds were executed to memorialize their
agreement. Some 103 years later, George R. Phillips, a great-grandson of
Housewright, sued Paul H. Skelton, Jr. – who is not a descendent of
Housewright – claiming that Skelton was interfering with Phillips' quiet
possession of his fee simple ownership of 9.96 acres of land in Hawkins County,
an interest Phillips claims is traceable to Housewright's estate. Skelton
answered and filed a counterclaim, in which he alleged that he, along with
others – not including Phillips – owned the subject property. The
trial court found that the property belonged to Phillips. Skelton appeals,
arguing that the trial court erred (1) in holding that Phillips, rather than
Skelton, "holds valid assurance and color of title to the subject real
property" and (2) in holding that Skelton failed to establish a defensible
title to the property. We affirm.
Betty
Bryant vs. Roy Bryant - E2002-02201-COA-R3-CV View
Claiborne County - In
this divorce case, the trial court dissolved a marriage of over 36 years;
divided the parties' marital property; and denied the request of Betty J.
Bryant ("Wife") for attorney's fees. Wife appeals, arguing that the division of
marital property is not equitable. Her argument is predicated primarily upon
the assertion that her spouse, Roy C. Bryant ("Husband"), dissipated the
marital assets as a result of his gambling activities. In addition, Wife
contends that the trial court erred in refusing to award her attorney's fees.
We affirm.
Armand Salvatore vs. Baron
Corp. - E2002-01978-COA-R3-CV View
Knox County - Following
the termination of his employment, Armand M. Salvatore sued two corporations
and six limited partnerships, as well as Miles E. Cullom, Jr., who was a
stockholder, director, and president of the corporations, and who was also a
limited partner in each of the limited partnerships, for salary, fees, and
commissions allegedly due him under the terms of a written employment
agreement. He also sued the defendant Cullom for statutory treble damages in
tort for interference with his employment contract. Following a bench trial,
the court below held that Salvatore, at the time of his termination, was
employed under a renewed one-year employment contract. Pursuant to this
holding, the trial court awarded him the remainder of his base salary for the
second year of his employment. Salvatore appeals, contending that the trial
court erred when it failed to award him salary for two additional years, fees,
commissions, and treble damages. The defendants, on the other hand, claim that
Salvatore is not entitled to the salary awarded to him by the trial court. We
modify the trial court's judgment to increase Salvatore's award by $20,500. As
modified, the judgment is affirmed.
Amprite
Electric v. Tennessee Stadium Group - M2002-00892-COA-R3-CV
View
Davidson County -
The electrical subcontractor on the Adelphia Stadium job was required by the
contractor, on 212 occasions, to perform extra work. Although the subcontract
provided that written change orders must precede and authorize extra work, this
requirement was soon mutually abandoned because the contractor, encouraged by
the owner, was concerned about a timely completion. The principal issue
concerns the dollar amount of compensation for the extra work. Amprite priced
its extra work according to manuals used in the construction industry, as
contrasted to its actual costs plus 10 percent, as the subcontract provides.
Amprite concedes that although its actual costs plus 10 percent were
substantially less than the amounts claimed, the contractor was estopped to
deny the greater compensation. The trial court held that the contract was
abandoned and that, in lieu, a different contract would be implied. Amprite was
accordingly awarded compensation for "8686 hours never worked, $90,245.00 for
materials never purchased and $6,877.00 for taxes never paid,"for a total
recovery of $1,131,311.66. Contractor appeals insisting that the contract was
not abandoned and that its provisions control. We hold that the requirement of
written change orders was waived by mutual agreement but that the remainder of
the contract was enforceable. The judgment is modified to allow a recovery of
$170,084.00.
Lori Bates v. Joseph Bates
- M2002-02037-COA-R3-CV View
Robertson County -
This is an appeal from a final decree of divorce, involving issues of
appreciation involving Husband's property, award of attorney fees, and division
of marital property and debt. Husband appeals. We affirm as modified herein and
remand for such further proceedings as may be necessary.
John Doe 1 v. Roman Catholic Diocese of Nashville -
M2001-01780-COA-R3-CV View
Davidson
County - This appeal involves claims of intentional infliction of
emotional distress through outrageous conduct. John Doe 1, his mother, and John
Doe 2 seek to hold the Roman Catholic Diocese of Nashville liable for injuries
caused by the alleged outrageous conduct of the Diocese in its dealings with
Edward McKeown, a former priest, who sexually molested John Doe 1 and John Doe
2 a number of years after his affiliation with the Diocese ended. The trial
court granted the Diocese's summary judgment motion, finding the Does had
failed as a matter of law to satisfy the threshold requirements for stating a
claim for the tort of outrageous conduct. The plaintiffs appeal that decision.
Because we find the summary judgment motion was properly granted, we affirm the
trial court.
Trinity Industries v. McKinnon
Bridge - M2002-02713-COA-R3-CV View
Davidson County - In
this case, appellant-contractor for construction of a bridge entered into a
contract with appellee-subcontractor for the fabrication and delivery of
structural steel. By virtue of an indemnity clause in the contract, the trial
court held the contractor liable to the subcontractor for the amounts expended
by the subcontractor in settlement of a lawsuit filed against it and for the
expenses incurred in the defense of the lawsuit. Contractor appeals. We affirm.
Cases posted the week of 09/15/2003
Sheryle Hydas vs Herman Hydas -
E2002-02943-COA-R3-CV View
Hamilton
County - In this divorce action the Trial Court valued marital and
non-marital property and divided marital property. Husband appealed the Trial
Court's decision on these issues. We affirm.
Fred Slaughter vs. Laura Slaughter & Daniel
Crowe - E2002-02477-COA-R3-CV View
Washington County -
The Trial Court gave Judgments for plaintiffs against defendants and
cross-defendant Slaughter was given Judgments for compensatory and punitive
damages against co-defendant Crowe and her deed to Crowe was voided. On appeal,
we affirm all Judgments except for the Judgment for punitive damages which is
remanded for trial on damages.
Crowder
Construction v. Dwight Holland - M2002-01840-COA-R3-CV
View
Davidson County -
The trial court determined that a construction contract between the parties had
been modified orally and awarded judgment to plaintiff contractor. We affirm in
part and remand.
Steve Rogers v. State -
M2003-00215-COA-R3-CV View
Plaintiff
appeals dismissal by the Tennessee Claims Commission of his claim against the
State of Tennessee resulting from an alleged assault and battery by a Tennessee
State Trooper in the State Capital Building. The Claims Commission dismissed
the claim for lack of subject matter jurisdiction, and we affirm the action of
the Claims Commission.
Estate of John
Acuff v. Brenda Olinger - M2002-01629-COA-R3-CV View
Marion County -
This is an appeal from the granting of appellee's motion for discretionary
costs. For the following reasons, we find that the motion was not timely filed
and reverse the court below.
Jesse
Fitts v. Donald Arms, d/b/a McMinnville Orthopedic Clinic -
M2002-00655-COA-R3-CV View
Warren
County - This appeal arises from a medical malpractice proceeding. The
trial court granted summary judgment for both physicians, finding that
Aapellants' expert affidavits failed to raise a genuine issue of material fact.
For the following reasons, we affirm the ruling of the trial court.
Donald Freeman v. Lynn Freeman -
M2002-02558-COA-R3-CV View
Davidson County -
This appeal involves a former husband's attempt to modify or terminate an
alimony award to his former wife because of a change of circumstances.
Primarily, husband asserts that he is retired, and his income and assets have
been drastically reduced to the extent that he is unable to pay the alimony
awarded. Wife filed a petition to hold husband in contempt for his failure to
pay the alimony installments accrued. After a non-jury hearing, the trial court
dismissed husband's petition and granted wife's petition holding husband in
civil contempt of court. Husband appeals. We affirm.
Dwight James v. State - M2002-01557-COA-R3-CV View
Davidson County -
This appeal involves Dwight James' unsuccessful attempt to qualify as a
candidate for Hickman County Road Superintendent and be placed on the August,
2002, election ballot. The trial court granted the Tennessee Highway Officials
Certification Board's summary judgment motion, finding that the Board had not
acted arbitrarily, capriciously or illegally in not certifying Mr. James as
qualified to run for the office of County Road Superintendent. We have
determined that the appeal is moot.
Brenda King
v. Danny King - M2002-01897-COA-R3-CV View
Davidson County -
Former Husband sought to accelerate former Wife's repayment of alimony
overpayments that accrued between the divorce and this court's modification of
the original award of alimony. Former Husband argues the trial court abused its
discretion when it did not establish a reasonable repayment plan. Because we
find the trial court did not abuse its discretion in fashioning a repayment
plan, we affirm the trial court.
Sylvester
Young v. Leah Barrow - M2001-00876-COA-R3-CV View
Davidson County -
This appeal arises out of a minor intersection accident. The complaints of the
driver and passenger of one of the motor vehicles against the driver of the
second motor vehicle were consolidated in the Circuit Court for Davidson
County. The trial court granted a directed verdict against the plaintiff driver
at the close of the plaintiffs' proof. Thereafter, the plaintiff driver filed a
second lawsuit against the defendant driver and her insurer. The trial court
dismissed the second suit on the ground of res judicata and granted the
insurer's motion for a judgment on the pleadings. The plaintiff driver has
perfected this appeal. We affirm the dismissal of his second complaint.
Leslie Robinson vs. William
Fulliton/Valerie Corder - W2002-01746-COA-R3-CV View
Shelby County -
This case involves the trial court's refusal to expunge the records of a
criminal contempt proceeding. In the underlying divorce action, the wife moved
for criminal contempt sanctions against the husband's attorney. The trial court
assigned a special prosecutor to investigate the criminal contempt charges
against the attorney. The special prosecutor later determined that there was
insufficient evidence of contempt. The attorney thereafter requested that the
trial court expunge the public records relating to the charge of criminal
contempt under the expungement statute, Tennessee Code Annotated §
40-32-101(a)(1). The trial court denied the attorney's request, concluding that
the statute did not apply to a criminal contempt proceeding within the meaning
of the statute. The attorney now appeals. Although the rules of appellate
procedure do not provide for the attorney to appeal the trial court's decision
relating to expungement, the appeal will be treated as a petition for a writ of
certiorari. We now grant the writ and reverse the trial court's decision,
concluding that the expungement statute applies insofar as the contempt charges
were criminal in nature.
Eddie/Janet
Gurley vs. Hickory White Partners - W2002-02050-COA-R3-CV View
This is a dispute over a sale
of land in Fayette County, Tennessee. The lower court granted summary
judgment in favor of the seller. Appellants raise two issues for our review.
For the following reasons, we affirm.
Richard McDonald vs. Swain & Sons -
W2002-00012-COA-R3-CV View
Shelby County -
This is a retaliatory discharge case. In July 1998, the plaintiff truck driver
began working for the defendant trucking company. In June 1999, the truck
driver was involved in a one-vehicle accident while making a delivery for the
company. Soon thereafter, the truck driver was discharged. The truck driver
sued the trucking company in the court below, alleging that his discharge was
not because of the vehicular accident, but rather was in retaliation for
refusing to participate in or remain silent about alleged illegal activity by
the trucking company. The trial court found in favor of the trucking company on
all issues. The plaintiff truck driver now appeals on several grounds. No
transcript or statement of the evidence was filed. The issues raised by the
plaintiff require a review of the proceedings below that is not possible in the
absence of a transcript of the trial proceedings or a statement of the
evidence. Consequently, we affirm the trial court's decision.
Cathy Leggett vs. Krista Minnick -
W2002-02672-COA-R3-JV View
Obion County
- Paternal grandparents sought change of custody of grandchildren from their
mother to grandparents. The trial court denied the petition but modified
previously ordered visitation and mother appeals. We affirm.
Wanda Theus vs. Bernard Woods - W2002-00342-COA-R3-JV
View
Shelby
County - This is a paternity suit involving the State's request to
establish child support payments from the defendant father. The mother filed
suit to establish paternity and to have the child's name changed. The evidence
established that the defendant was the child's father. At the hearing before
the juvenile court referee, the mother requested that child support not be set,
because the father was voluntarily providing support. The State objected,
insisting that child support payments be established under the guidelines,
because the mother's right to such support was assigned to the State when she
accepted state financial assistance. The juvenile court referee declined to
establish child support, because neither the mother nor the father wanted
support payments to be set. The State requested a hearing on the matter before
a juvenile court judge. At a brief hearing, the juvenile court judge summarily
affirmed the conclusion of the referee, citing the fact that neither parent
wanted support to be set. The State now appeals. We reverse the decision of the
juvenile court and remand with instructions to conduct a de novo evidentiary
hearing, pursuant to Tennessee Code Annotated § 37-1-107(e).
City of Memphis vs. Civil Service & Stanley
Shotwell - W2002-01556-COA-R3-CV View
Shelby County -
This case involves a Rule 60.02 motion for relief from a final judgment. The
plaintiff police officer was terminated from his position at the police
department. The officer appealed his termination to the civil service
commission, which reversed the officer's termination and ordered his
reinstatement. The city appealed to the court below. In 1995, the trial court
reversed the commission's decision and upheld the officer's termination. The
officer appealed to this court, which affirmed the termination decision in
1997. In 1998, after the appeal had been adjudicated, the officer filed a
motion in the trial court for relief from its 1995 judgment, pursuant to Rule
60.02 of the Tennessee Rules of Civil Procedure. The trial court rejected the
motion, determining that it was filed outside the one-year time limitation
provided in Rule 60.02. The officer now appeals that decision. We affirm the
decision of the trial court, finding that the one-year time limitation provided
in Rule 60.02 begins to run on the date of entry of the order from which the
movant seeks relief.
Marcia McAlexander
vs. Albert McAlexander - W2001-02550-COA-R3-CV View
Shelby County
- This appeal involves two consolidated cases. The first case is a post-divorce
proceeding initiated by wife as a Rule 60 motion and petition for contempt to
modify and enforce the final decree of divorce as it pertains to the alimony
award and division of marital property. In these proceedings, the parties
consented to arbitration of all determinative issues, and the award of the
arbitrator was confirmed by the trial court. Husband appeals. We affirm as
modified. The second case is an appeal of the order of the trial court granting
a summary judgment from husband's petition seeking a sale for partition of the
parties' former marital home, now held by the parties as tenants by the
entirety and with possession awarded to wife until she remarries. The trial
court granted summary judgment decreeing a sale for partition. Wife appeals. We
affirm, as modified, for a determination on remand of wife's interest in the
property by virtue of the award of possessory rights awarded in the final
decree.
Lorenzo White vs. Carolyn Hayes -
W2002-00669-COA-R3-CV View
Tipton County -
This is a will construction case. The testator's will devised his estate to his
children, then to his grandchildren, then to his great-grandchildren. When the
great-grandchildren became of age, the estate was to be divided "as law
directs." The plaintiffs, great-grandchildren of the testator, filed this
action seeking interpretation of the will and a statement of each party's
interests. The trial court found that the will in question violated the Rule
Against Perpetuities and ordered that the estate be divided among the
testator's living heirs as tenants in common and per stirpes. The plaintiffs
appeal. We vacate the decision of the trial court and remand for consideration
of the cause in light of the Tennessee Uniform Statutory Rule Against
Perpetuities, T.C.A. §§ 66-1-201 to -208.
Sandra Hensley v. Daniel Scokin, M.D. -
M2002-00922-COA-R3-CV View
Davidson County -
This is a medical battery case. The patient was scheduled to undergo a
hysterectomy. Because of prior medical problems, she told the anesthesiologist
that she needed him to use nasal intubation instead of oral intubation to
anesthetize her for the surgery. The anesthesiologist told her that he would
use the type of intubation that he thought was best for her. Ultimately, when
the hysterectomy was performed, the patient was intubated through an oral
pathway. The patient sued the anesthesiologist for medical battery. The
anesthesiologist filed a motion for summary judgment. The trial court found
that the patient knew that the anesthesiologist might use oral intubation, and
that she authorized the procedure both by signing a consent form prior to the
surgery and by not stopping the procedure when she became aware that the
anesthesiologist might use oral intubation. Consequently, summary judgment was
granted in favor of the anesthesiologist. We reverse, finding that a question
of material fact exists as to whether the patient authorized the use of oral
intubation.
Cases posted the week of 09/08/2003
State vs. E.G.P. - E2003-00433-COA-R3-CV
View
Bradley County - The
Juvenile Court of Bradley County ordered that a placement should be found by
the Department of Children's Services ("DCS") for a sixteen-year-old mother
with her two and one-half-year-old child, the latter of whom had been in foster
care most of his life. Time constraints were imposed and DCS did not or was
unable to comply with the judgment, which resulted in a finding of contempt.
The DCS appeals, and presents a litany of issues for review, one of which
alleges that the juvenile court lacked jurisdiction to adjudicate a placement.
The judgment is vacated in toto and the case is remanded.
Ethel Carmical v. Mary Jane Kilpatrick -
M2002-00613-COA-R3-CV View
Perry
County - This is a challenge to an award of attorney's fees in a
partition action. The testatrix left 500 acres of land in Perry County to her
then-living heirs. Some of the heirs filed this action to partition and sell
the land. After several years, the land finally sold. The trial court awarded
10% of the sale proceeds, approximately $100,000, as attorney's fees for the
three attorneys who provided legal services in the partition action. One of the
heirs now appeals that award, claiming that it was excessive. The appellant
filed neither a transcript of the proceedings nor a statement of the evidence
pursuant to Tennessee Rule of Appellate Procedure 24(c). We must affirm the
trial court's award, because the issues raised by the appellant would require a
review of the proceedings below, and without a transcript of the trial
proceedings or a statement of the evidence, we must assume that the trial court
properly exercised its discretion in light of the evidence.
Donald Curlee v. State Auto Mutual -
M2002-01627-COA-R3-CV View
Davidson County - This
case involves the interpretation of a permit bond. The contractor and a surety
entered into a permit bond relating to work the contractor was to perform for a
metropolitan government. The bond was written in favor of the metropolitan
government as well as property owners whose property was damaged due to the
contractor's violation of certain metropolitan government codes. In the
underlying lawsuit, a property owner was awarded a judgment against the
contractor. In this lawsuit, the property owner sued the surety for failing to
pay the judgment against the contractor. The trial court granted the surety's
motion to dismiss, finding that there was no contractual relationship between
the property owner and the surety on which a claim could be based, nor was the
property owner a third-party beneficiary of the permit bond. The property owner
appeals. We review the trial court's decision as a motion for summary judgment
and affirm, finding that the record does not show that the property owner was
among the parties protected under the language of the Bond.
State v. R.S. and K.S. - M2002-00919-COA-R3-CV
View
Franklin County - This
appeal involves a petition filed by the Department of Children's Services to
terminate the parental rights of Mother and Father to their three minor
children. The trial court denied the petition and ordered the children returned
to Mother and Father. The Department appeals the decision of the trial court,
arguing first that there was clear and convincing evidence to support
termination, and secondly, even if the denial is upheld, the trial court lacked
jurisdiction to order the children's return to their parents. Because we find
the petition was properly denied, but further find the trial court lacked
jurisdiction to order the children's return home, we affirm in part, vacate in
part, and remand.
Titan Trucking v. American
Home Assurance & Beers Construction - M2002-01747-COA-R3-CV
View
Rutherford County -
This case involves the interpretation of a performance payment bond. The city
contracted with a construction company to make improvements to a public
project. The construction company entered into a performance payment bond with
the surety to protect the city. The public project required excavation of soil,
and the contract allowed the construction company to either relocate the dirt
or remove it. A third party purchased the dirt. The purchaser's subcontractor
hired a trucking company to move the dirt for the purchaser. The trucking
company was never paid for its services. The trucking company sued the
construction company and the surety under the terms of the performance payment
bond. The trial court granted summary judgment in favor of the construction
company and the surety. The trucking company appeals. We affirm, finding that
the services provided by the trucking company were not covered under the terms
of the performance payment bond because the construction company was not
obligated to pay the third party purchaser for removal of the dirt.
Janis Turner v. Andre Yovanovitch -
M2002-01164-COA-R3-CV View
Davidson County - This
is a child support modification case. The father's net monthly income was in
excess of $10,000 per month. The trial court, stating that it was in the
child's best interest and welfare, included father's income in excess of
$10,000 in calculating his child support obligation. On appeal, the father
asserts that the mother failed to prove by a preponderance of the evidence that
the child support based on income greater than $10,000 per month was reasonably
necessary to provide for the needs for the minor child, as contemplated in
Tennessee Code Annotated section 36-5-101(e)(1)(B). We affirm.
Michael Warden v. Thomas Wortham/Jerry Tidwelll v.
Michael Warden - M2002-00364-COA-R3-CV View
Hickman County - This
case involves specific performance of a real estate contract. The first buyer
and the seller entered into a contract for the sale of certain land. The
contract did not state a time of performance. After the first buyer failed to
perform within the time period understood by the seller, the seller sold the
property to the second buyer. The first buyer did not discover the sale to the
second buyer until approximately ten months after the second contract was
signed and seven months after the transfer. The first buyer filed a lawsuit
against both the seller and the second buyer, seeking specific performance of
the original contract. The trial court found that the first buyer failed to
tender performance within a reasonable time, and granted the second buyer's
motion for directed verdict. The first buyer appeals. We affirm, in agreement
with the reasoning of the trial court.
Kay
Dulin vs. Michael Dulin - W2001-02969-COA-R3-CV View
Shelby County - This
appeal arises from a custody dispute involving parental relocation with a minor
child. The lower court dismissed Father's petition to oppose Mother's
relocation and granted Mother's motion to dismiss. Father raises multiple
issues on appeal. For the following reasons, we affirm.
Haren Construction vs. B&G Electrical -
W2002-00279-COA-R3-CV View
Shelby County -
This is an appeal from the denial of Appellants' motion to vacate an
arbitration award. Appellants contend that one of the arbitrators chosen by
their opponents exhibited behavior showing evident partiality. Appellants
further contend that the trial court erred in not applying the Federal
Arbitration Act to the case and in awarding Appellees Rule 11 sanctions. For
the following reasons, we affirm the court below.
Wanda Hobson v. Nashville and Davidson County -
M2002-02512-COA-R3-CV View
Davidson County
- Plaintiff initiated this action alleging breach of contract, interference
with contractual relations, and pursuant to the Governmental Tort Liability
Act. The trial court dismissed the action for failure to state a claim. We
affirm.
Shirley Secrest v. Tera Haynes -
M2002-01895-COA-R3-CV View
Marshall County - The
appeal involves a claim for property damages by Shirley Secrest ("Secrest" or
"Plaintiff") against Kenneth Smith and Tera Haynes, who were driving separate
vehicles involved in a multi-vehicle accident with a vehicle owned by
Plaintiff. After a trial, the Trial Court concluded that while the driver of
Plaintiff's vehicle was not at fault and that either one or both of the
Defendants were at fault, the complaint nevertheless should be dismissed
because: (1) Plaintiff failed to prove by a preponderance of the evidence that
Kenneth Smith was negligent; and (2) Plaintiff failed to prove by a
preponderance of the evidence that Tera Haynes was negligent. Plaintiff
appeals, claiming the Trial Court was required to allocate fault to Smith
and/or Haynes once it concluded that Plaintiff was not at fault and either one
or both of the Defendants were at fault. We affirm.
Cases posted the week of 09/01/2003
Albert Gregurek v. Swope Motors -
M2002-02854-COA-R3-CV View
Marion
County - This case involves an interlocutory appeal from the trial
court's denial of the Defendant's Motion to Dismiss on grounds of lack of
personal jurisdiction and/or Motion for Summary Judgment. We reverse.
Sharron Johnson v. Rodney Lockhart -
2002-00623-COA-R3-CV View
Sumner
County - Sharron Johnson brought suit against her former husband,
Rodney Lockhart, alleging breach of an oral contract to pay equal shares of the
college expenses for their son, Paul G. Lockhart. The Circuit Court of Sumner
County entered judgment for Ms. Johnson, and Mr. Lockhart appeals. We affirm
the judgment of the trial court.
Alexander
Wells v. James Hefner - M2002-02502-COA-R3-CV View
Davidson County -
Plaintiff filed a cause of action against several state employees for malicious
prosecution. The trial court dismissed the action for lack of subject matter
jurisdiction. We reverse.
Est. of Nola Layne
Deskins & Est. of Thomas Deskins vs. Randall & Thelma Deskins -
E2003-00427-COA-R3-CV View
Sevier
County - In this Estate dispute, the Trial Court dismissed claims of
two claimants. We affirm, dismissal of claimant who died on grounds his Estate
had no standing to proceed. We reinstate the action of the other claimant on
grounds she is not estopped to maintain her action.
Angela Draper vs. State - E2002-02722-COA-R3-CV
View
In action against the State
of Tennessee and a state employee, the Commissioner held he had no jurisdiction
of the claims. On appeal, we affirm.
Gail
Allen v. Saturn Corp. - M2002-01238-COA-R3-CV View
Maury County -
Appellants, Gail and Larry Allen, sustained injuries when a tent collapsed
during a thunderstorm at a Homecoming at the Saturn Corporation in Spring Hill.
They brought suit for their injuries caused by negligence in maintenance and
construction of the tent. They dismissed or settled their claims with all
Defendants except Saturn Corporation. Saturn filed a Motion for Summary
Judgment arguing that Appellants were unable to establish a prima facie case of
the Appellee's negligence. The trial court granted Appellee's Motion for
Summary Judgment. We affirm the decision of the trial court.
Kenneth Hughes, et ux. v. Estate of Elizabeth Haynes
- M2002-01896-COA-R3-CV View
Franklin County - This
appeal involves a claim filed against an estate for recovery for personal
services rendered by claimants, husband and wife, to the decedent. The probate
court granted the claim. Estate appeals. We reverse.
Labor-Kraft v. Donald League - M2002-01573-COA-R3-CV
View
Wilson County - This
dispute arises from a tax sale of real property in Wilson County. The County
failed to give notice of the sale to plaintiff, who held a properly recorded
deed of trust. The trial court determined the debt secured by the deed of trust
had been paid and that the County's failure to give notice accordingly was
harmless error. We affirm.
John McConkey v.
State - M2002-02671-COA-R12-CV View
John McConkey ("Plaintiff") had a
vasectomy performed by a state-employed doctor. Plaintiff experienced swelling
and pain after the operation, which he claimed caused him to lose time at work
and caused problems in his marriage. Plaintiff underwent two subsequent
surgeries including the removal of his left testicle. Plaintiff brought this
claim against the doctor who performed the vasectomy. Plaintiff had no expert
witness at trial. After trial, the Claims Commission ("Commission") entered an
order holding, inter alia, that Plaintiff did not carry his burden of proof to
establish a res ipsa loquitur case. Plaintiff appeals. We affirm.
Southeast Drilling & Blasting v. Hu-Mac
Contractors - M2001-00635-COA-R3-CV View
Davidson County - This
case comes to the Court by an appeal from the Chancery Court of Davidson
County. Southeast Drilling and Blasting Services, Inc., hereinafter referred to
as "Southeast", brought suit against Hu-Mac Contractors, LLC, Hu-Mac
Contractors, Fieldstone Homes, LLC, d/b/a Hu-Mac Contractors, hereinafter
referred to as "Hu-Mac", and FVN, LLC for breach of contract. At trial,
Southeast stipulated the only party they dealt with was Hu-Mac Contractors,
LLC. After a two day bench trial, the Chancellor entered a judgment against
Hu-Mac finding there was an unsigned written contract between the parties. The
Chancellor determined Southeast was entitled to its lost profits, prejudgment
interest, and attorneys fees pursuant to the Prompt Pay Act of 1991 (TCA
§§66-34-101, et seq.). After a review of the record, this Court
reverses the Trial Court in part and affirms it in part and remands to the
Trial Court for action consistent with this Opinion.
Linda Laws/ Estate of Mary Sloat vs. Water & Light
Commission of Greeneville - E2002-01152-COA-R3-CV
View
Greene County
- This appeal questions whether the Trial Court erred in its judgment against
the Appellant/Defendant, Water and Light Commission of the Town of Greeneville,
Tennessee, for personal injuries sustained by a Greeneville resident as a
result of the smoking of sewer lines by the Appellant. We affirm the judgment
of the Trial Court.
Denver Area Meat Cutters
vs. James Clayton - E2003-02035-COA-R10-CV View
Blount County - The
focus of this litigation is upon the merger of Clayton Homes, Inc., a
publicly-owned Delaware corporation whose stock was, until recently, traded on
the New York Stock Exchange, with B Merger Sub Inc., also a Delaware
corporation. B Merger Sub Inc. was a wholly-owned subsidiary of Berkshire
Hathaway, Inc. The latter company is a publicly-owned Delaware corporation; its
stock is traded on the New York Stock Exchange. We granted an extraordinary
appeal to the defendant Clayton Homes, Inc., and the individual defendants, all
of whom were members of that corporation's pre-merger board of directors, in
order to review the trial court's order of August 18, 2003, attached as
Appendix A to this opinion. The defendants' application for review – filed
pursuant to the provisions of Tenn. R. App. P. 10 – asks us to determine
"(1) whether the [trial court] properly granted Plaintiff's request for a
[temporary restraining order]; (2) whether the [trial court] properly found
that Plaintiff retained standing to maintain its derivative claims [;] and[]
(3) whether the [trial court] properly lifted the stay previously issued in
this action." We hold (1) that the trial court's "status quo" order –
essentially a temporary injunction – was erroneously issued and,
accordingly, we vacate that order; (2) that the plaintiff lacks standing to
pursue its stockholders' derivative claims, and, consequently, we vacate the
trial court's order denying the defendants' motion to stay as to those claims;
(3) that the trial court should dismiss the plaintiff's stockholders'
derivative claims upon the filing of an appropriate motion to dismiss; and (4)
that the trial court did not err in permitting, at this time, the plaintiff's
putative class action lawsuit for damages to proceed forward in the court
below. The trial court's order is vacated in part and affirmed in part and this
case is remanded to the trial court with instructions. We direct that the order
issued pursuant to this opinion will be stayed until 4:30 p.m. EDT, September
8, 2003, in order to afford each of the parties an opportunity to request
further appellate review by the Supreme Court.
Thomas Bronson vs. Horace Umphries vs. Norfolk
Railway - W2002-01260-COA-R3-CV View
Shelby County - This
appeal is from judgments on jury verdicts in a wrongful death case and personal
injury cases resulting from a collision of a freight train with a vehicle.
Suits were filed for the wrongful death and personal injury claims against the
railroad, and the passengers in the vehicle also sued the owner and driver of
the vehicle. The cases were consolidated for trial, and the jury returned a
verdict for defendant railroad in all cases. The jury also returned a verdict
awarding damages for plaintiffs' in their suit against the driver and owner of
the vehicle. Judgments were entered on the jury verdicts, and all plaintiffs
appealed. We affirm.
Joanne Hunter vs. Ricky
Jackson - W2002-02857-COA-R3-CV View
Tipton County - The
Plaintiffs appeal the judgment of the trial court contending that the award of
compensatory damages was inadequate and that the trial court erred in failing
to award punitive damages. Plaintiffs further contend the trial court erred in
failing to award the full amount of their discretionary costs. We affirm the
award of damages and modify the order of the trial court to the extent that
Plaintiffs are awarded the full amount of their discretionary costs.
Dept. Children Services vs. Chester Cole -
W2002-03045-COA-R3-JV View
Madison
County - This is a termination of parental rights case. The father
appeals from the order of the juvenile court terminating parental rights to his
three children. Specifically, the father asserts that the Trial Court failed to
find, by clear and convincing evidence, that termination of his parental rights
was in the best interest of the children. Because we find clear and convincing
evidence in the record to support the Trial Court's findings, we affirm.
Kathleen Earley vs. Robert Earley -
W2002-01354-COA-R3-CV View
Shelby
County - In this divorce case, the final decree granting wife a
divorce made a division of marital property but failed to include as part of
the marital estate several expenditures made by the husband. Wife asserts that
such expenditures constitute a dissipation of assets by the husband and should
have been included as part of the marital property. Wife appeals. We affirm.
Dept. Children Services vs. Portia Butler
- W2003-01002-COA-R3-PT View
McNairy County -
Department of Children's Services filed petition to terminate parental rights
of biological mother and father to dependent and neglected minor child based on
several grounds, including abandonment. Department later amended its petition
to include an additional ground for termination of father's parental rights,
citing T.C.A. § 36-1-113(g)(6). Juvenile court held two separate hearings
on Department's petition. As part of the second hearing, mother consented to
termination of her parental rights as to minor child. Upon conclusion of
hearings, juvenile court entered order terminating mother and father's parental
rights, finding grounds for termination of father's rights, and that
termination was in the child's best interests. Father appeals. We affirm.
Christopher Ryan vs. James Surprise -
W2001-02853-COA-R3-CV View
Shelby
County - This case involves discovery sanctions. The plaintiff sued
the defendants, a lawyer and his law firm, for legal malpractice. The plaintiff
requested certain documents from the defendants at least three times, which
were not produced. The trial court ordered production of the documents at a
deposition. The documents were not produced at the deposition. Twenty-eight
days after the deposition, on the eve of a hearing on the defendants' alleged
discovery abuses, the documents were produced. In response to the plaintiff's
request for sanctions, the trial court ordered that the defendants pay the
plaintiff's attorney a monetary sanction. The defendants appeal, arguing that
the imposition of the sanction was an abuse of discretion, because there was no
evidence indicating the amount of attorney time spent on the alleged discovery
abuse and, therefore, no evidentiary basis for the amount of the sanction. We
vacate the order of the trial court and remand for further proceedings, because
the record does not support the trial court's award.
Robert Pelts vs. International Medical Services -
W2002-00388-COA-R3-CV View
Shelby
County - This case involves specific performance of a contract to sell
real property. A medical services corporation was formed by three individuals.
One founder received a majority of the stock of the corporation and became the
chairman of the corporation's board of directors. The other two founders were
minority shareholders. The corporation purchased a certain piece of real
property. The corporation then filed bankruptcy. After the bankruptcy was
discharged, the majority shareholder, the chairman of the board of directors of
the corporation, convened a shareholders' meeting that was not attended by the
other two founders of the corporation. The chairman elected himself president
of the corporation and authorized himself to sell the realty. The now-president
then entered into a contract to sell the property to a purchaser. He
subsequently convened a meeting of the board of directors of the corporation
and installed two new board members. The new board ratified the contract for
the sale of the land to the purchaser. The two remaining original owners of the
company asserted that the president of the corporation had no legal ability to
contract to sell the land because he fraudulently obtained his majority
ownership of the company. The purchaser filed a lawsuit against the corporation
and the shareholders for specific performance of the contract for sale of the
land, and then moved for summary judgment. The trial court granted summary
judgment to the purchaser and ordered the sale of the land. On appeal, the
minority stockholder argues that the trial court erred for a number of reasons.
We affirm, holding that the minority shareholder, proceeding pro se, cannot
represent the corporation, and finding no error in the trial court's decision
as it relates to the minority shareholder.
Shelby Co. Health Care vs. Allstate vs. William
Holt - W2002-01439-COA-R9-CV View
Shelby County - This
is an interlocutory appeal by the third party defendants challenging the trial
court's decision that the state of Tennessee has personal jurisdiction over
them. For the following reasons, we affirm the portion of the trial court's
ruling with respect to Teresa Stivers and reverse with respect to William Holt
and the Gary Eubanks and Associates Law Firm.
Troy Thompson vs. Elisa Hulbert -
W2003-01275-COA-RM-CV View
Shelby
County - This case involves a constitutional challenge to the
Tennessee Child Support Guidelines, Tenn. Comp. R. & Regs. 1240-2-4. In our
initial Opinion in this case, we held that the challenged guidelines were
unconstitutional because that they were violative of the equal protection
guarantees of the federal and state constitutions. The Supreme Court of
Tennessee granted certiorari and remanded the case to this Court for
reconsideration in light of the Supreme Court's recent decision in Gallaher v.
Elam, 104 S.W.3d 455 (Tenn. 2003). In light of Gallaher, we must conclude that
there is no constitutional defect in the challenged child support guideline
provisions. Consequently, we affirm the child support award ordered by the
trial court.
Susan Whitehurst vs. Martin
Medical - W2001-03034-COA-R3-CV View
Weakley County - This
is a defamation case. The plaintiff is an obstetrician/gynecologist who
practices in a largely rural area. The individual defendants are pharmacists
who work at Wal-Mart stores in that area. In October 1997, one of the
pharmacists received a phone call from her sister, another physician in the
area. The sister told the pharmacist that the plaintiff
obstetrician/gynecologist had contracted the HIV virus and was sending letters
to her patients to inform them of that fact. The pharmacist, a former patient
of the plaintiff, repeated the information to her co-workers. Several Wal-Mart
employees, including the defendants, repeated the information about the
plaintiff to others. The information was false. When the plaintiff learned of
the spread of the false rumors, she sued the defendants for defamation. After a
lengthy trial, the jury found in favor of the defendants. The plaintiff now
appeals, asserting, inter alia, that the trial court erred in admitting
evidence that was irrelevant or otherwise improper, and in approving the jury
verdict. We affirm, finding that the trial court did not err in the admission
of evidence, and that material evidence supports the jury's verdict.
Cases posted the week of 08/25/2003
Shawn E. McWhorter v. Randall Bare -
E2002-02896-COA-R3-CV View
Hamilton
County - Professional pilot Shawn E. McWhorter ("Plaintiff") sued
Randall Barre ("Defendant") for defamation based upon a letter Defendant wrote
to the Federal Aviation Administration ("FAA") containing allegations that
plaintiff was medically unfit to be a pilot. The jury returned a verdict for
plaintiff and awarded $25,000 in compensatory damages and $42,500 in punitive
damages. The trial court entered its judgment, as later amended, in favor of
plaintiff against defendant for $105,820.01, consisting of compensatory damages
of $25,000, punitive damages of $42,500, and attorney fees and expenses in the
amount of $38,320.01. The trial court's award of attorney fees and expenses was
based upon defendant's refusal to admit liability in response to requests for
admission. Defendant appeals. We affirm, in part, and reverse, in
part.
Jasmine A. Ali v. Eric N. Fisher, et
al. - E2003-00255-COA-R3-CV View
Sullivan County -
After an automobile accident in which she suffered serious injuries, Jasmine A.
Ali ("Plaintiff") sued both the driver of the automobile, Eric N. Fisher
("Fisher"), and the owner of the automobile, Thomas Scheve ("Scheve"). The
claim against Scheve was based on negligent entrustment. Prior to trial,
Plaintiff and Scheve were in sharp disagreement as to whether Scheve's alleged
negligent entrustment resulted in Scheve's being vicariously liable for
Fisher's conduct, or whether Scheve's negligence should be apportioned by the
jury pursuant to comparative fault principles. The trial court concluded
Scheve's alleged negligent entrustment should be apportioned by the jury
pursuant to comparative fault principles. After a trial, the jury returned a
verdict for plaintiff and apportioned fault, 80% to Fisher and 20% to Scheve
based on his negligent entrustment of the vehicle to Fisher. The trial court
entered a judgment in accordance with the jury's verdict. Plaintiff filed a
Motion to Alter or Amend Judgment asking the trial court to reverse its earlier
pre-trial ruling and hold Scheve vicariously liable for Fisher's negligence
because Scheve negligently entrusted the vehicle to Fisher. The trial court
granted the motion and amended the judgment which, in effect, held Scheve and
Fisher jointly and severally liable for the entire amount of the jury's award.
Scheve appeals. We hold the trial court erred when it amended the original
judgment after concluding, post- trial, that Scheve was vicariously liable for
Fisher's conduct. We vacate the amended judgment and reinstate the original
judgment of the trial court entered in accordance with the jury's verdict
apportioning fault.
In Re: Lillie Odessie Green,
Decedent - M2002-01672-COA-R3-CV View
Davidson County -
The court is asked to construe the following language contained in a form will:
"I give all my estate to my children, if any, who survive me in equal shares,
per stirpes." The testatrix was survived by four of her five children. The
trial court held that the two children of the testatrix's child who predeceased
her did not take any of her estate. We hold likewise.
Vincent D. Carson (Cason) v. Richard M.
Gilleland - M2002-01082-COA-R3-CV View
Wilson
County - This personal injury action by an undercover law enforcement
officer resulted in judgment against appellant and two co-defendants. Appellant
is an inmate with the Department of Corrections and after filing a pro se
answer to the complaint took no further action in defense and more than two
years after his answer was filed the case was heard in his absence and resulted
in a judgment for $5,000,000.00. Plaintiff appeals and we affirm the action of
the trial court.
Department of Children's
Services v. C.L. & M.T. - M2001-02729-COA-R3-JV View
Davidson County - At
issue in this appeal is the petition filed by the Department of Children's
Services to terminate the parental rights of Mother and Father to nine of their
children. After a trial, the trial court granted the petition to terminate the
parental rights of Mother and Father based on abandonment, failure to comply
with the Permanency Plans, and persistence of the conditions which led to the
removal. Each parent independently appeals the decision of the trial court,
arguing that there was not clear and convincing evidence to support the trial
court's ruling. Because we find that grounds for termination were not proved as
to either parent, we reverse the judgment terminating Father's and Mother's
parental rights.
Staubach Retail Services -
Southeast, L.L.C. v. H.G. Hill Realty Company - M2002-02661-COA-R3-CV
View
In this action over a
brokerage commission the Chancery Court of Davidson County granted
summary judgment to the broker. On appeal, the owner asserts that the plaintiff
failed to show by undisputed evidence (1) that the owner agreed to pay the
commission upon "occupancy" of the building, or (2) that the tenant ever
"occupied" the building. We affirm.
Barbara Lee Bunce Kerce v. Stephen Paul Kerce -
M2002-01744-COA-R3-CV View
The appellant Stephen Paul
Kerce challenges the divorce decree entered in Moore County Circuit
Court, alleging that the court erred in its valuation and distribution of the
marital estate. We affirm.
Stephen Morgan v.
Paula Morgan - M2002-00793-COA-R3-CV View
Robertson County -
Husband and Wife were declared divorced on the basis of stipulated grounds.
Wife appeals the classification and division of the property. We affirm the
decision of the trial court.
In Re: The
Estate of Merle Halliburton Neal Myers v. Farmers & Merchants Bank Corp.,
Inc. Brooksie Byers, Douglas Myers, James Myers - M2002-00888-COA-R3-CV
View
Stewart
County - After the death of their elderly mother, her sons discovered
that the decedent's stepson and his wife had used a power of attorney to
transfer the funds from the decedent's $20,000 CD to themselves. The decedent's
son filed a petition to have the money restored to her estate. The trial court
held that the CD was a valid inter vivos gift from the decedent. We reverse,
because there is no evidence in the record that such a gift was ever
made.
TGJ & Co. vs. Michael E. MaGill -
E2003-00298-COA-R3-CV View
Knox
County - Margaret E. Bowers ("the Claimant") appeals the judgment of
the trial court, which reversed an administrative determination of the
Commissioner of the Department of Labor and Workforce Development ("the
Commissioner"). The Commissioner had held that the Claimant is eligible for
unemployment compensation as a result of the termination of her employment with
TGJ & Co., Inc. ("the Employer"). Because we hold that the Claimant
voluntarily quit her employment without good cause, we affirm the trial court.
Lindsay Alford vs. Oak Ridge City
Schools - E2002-03133-COA-R3-CV View
Anderson County -
Lindsay E. Alford ("the plaintiff") and her father, David R. Alford, IV, sued
The Oak Ridge City Schools ("the high school") under the Governmental Tort
Liability Act ("GTLA") for injuries sustained by the plaintiff when she slipped
on a hallway floor at Oak Ridge High School, where she was a student. At the
conclusion of the plaintiff's proof, the trial court granted the high school's
motion for an involuntary dismissal, finding that, while the plaintiff had
proven the existence of water on the floor, she had failed to prove that the
high school knew or should have known about the water. From this ruling, the
plaintiff appeals. We affirm.
Aussie
Humphrey vs. State - E2003-00617-COA-R3-CV View
This claim against the State of
Tennessee arises out of a three-vehicle accident. The plaintiff, Aussie Lee
Humphrey, who was driving one of the vehicles, sued William Alan Klingensmith,
the driver of one of the other vehicles. After the one-year period of
limitations found in Tenn. Code Ann. § 28-3-104 (2000) had expired,
Klingensmith amended his answer to allege the comparative fault of the State.
Within 90 days of the amendment, Humphrey filed a claim against the State,
relying upon Tenn. Code Ann. § 20-1-119 (Supp. 2002). The Claims
Commission held that the State was not one of the "governmental entities"
contemplated by the language of Tenn. Code Ann. § 20-1-119(g) and
dismissed the claim against the State. Humphrey appeals. We reverse.
Sevier County vs. John Waters, Trustee -
E2002-02309-COA-R3-CV View
This is a land
condemnation case. On November 18, 1988, Sevier County ("the County") filed a
petition for condemnation seeking to condemn property in the county for a new
jail. The petition was tried to a jury some 13 plus years later, on June 19 and
20, 2002. The jury awarded compensation of $335,500. This verdict was $158,500
more than the amount deposited in court by the County. The trial court entered
judgment on the jury's verdict; the trial court supplemented the award by an
award of pre-judgment interest of $267,468.75 and decreed that the total
judgment of $425,968.75 would accrue interest at the rate of 10% per annum. The
County appeals, arguing (1) that the trial court erred in excluding evidence
pertaining to a controversy over the ownership of the property; (2) that
pre-judgment interest is discretionary with the court and that the court below
should have considered the disputes among the property owners as a factor
impacting the delay in getting this matter to trial; (3) that the trial court
erred in the way it calculated pre-judgment interest; and (4) that the trial
court erred in decreeing that the judgment of $425,968.75 would accrue
post-judgment interest at the rate of 10% per annum. We affirm.
In
Re: The Estate of Lowell Frazier - E2002-01203-COA-R3-CV
View
Campbell County -
This appeal concerns two separate suits filed in the Chancery Court for
Campbell County in connection with the administration of the Estate of Lowell
Frazier. The first suit was brought by Sam Lough, individually, and also, along
with his wife, Debbie Lough, as parents and guardians of Matthew Lough, and
Darryl Herron and Elizabeth Herron, as parents and guardians of Chelsea Herron.
It sought to establish a lost or spoilated will of Mr. Frazier, which was dated
January 30, 1998 ("the first will"). The second suit was brought by Matthew
Lough and Chelsea Herron by and through their guardian ad litem, appointed in
the first case, contesting a later will dated May 24, 2000 ("the second will").
The cases were consolidated below and the suit seeking to establish the first
will was tried first. Under an agreement of the parties, the first case must be
decided in favor of the minors before they would have standing to contest the
second will. After a plenary trial a jury found as to the first case that the
Plaintiffs proved by clear and convincing evidence that Lowell Frazier did not
destroy the first will. Thereupon, the second trial was had before the same
jury, which found against the second will on the ground that due execution was
not proved and that Glenda Faye Smith, who was the sole beneficiary of the
second will, and at the time it was executed was attorney-in-fact for Mr.
Frazier, did not overcome the presumption of undue influence over Mr. Frazier
by clear and convincing evidence. Ms. Smith raises a number of issues, many of
which merit a critical examination, but our review of the record persuades us
that the issue which contends that she was entitled to a directed verdict in
the first case is the dispositive issue in this appeal. We find that the Court
was in error in not directing a verdict in her favor in the lost will case and
reverse the judgment rendered therein. This results in the Plaintiffs not
having standing to pursue the second case, which is reversed and dismissed.
Kim Hickerson v. Andrew Dearing, III -
M2002-02210-COA-R3-CV View
Coffee County - This
is a malpractice action filed by Appellant against his criminal defense
attorney in a case resulting in his conviction by a Coffee County jury of
selling cocaine a Class C felony. While this civil case was pending on appeal
the underlying criminal conviction of Appellant was affirmed by the Court of
Criminal Appeals and the Supreme Court denied his application to appeal. Based
upon Gibson v. Trant, 58 S.W.3d 103 (Tenn.2001), we affirm the action of the
trial court in dismissing the case.
Chris
Hickman v. Misty Willis - M2003-00574-COA-R3-JV
View
Hickman County -
Mother appeals the trial court action of requiring non-custodial obligor father
to pay only one-half of the premium for medical insurance covering their minor
child and further appeals the amount of support arrearage. As the child support
guidelines are mandatory in requiring that non-custodial obligor parent is
responsible for the full premium of medical insurance, the action of the trial
court is modified accordingly and in all other respects affirmed.
Eric J. Nunley v. Dept of Correction -
M2002-02032-COA-R3-CV View
Davidson
County - The petitioner, Eric J. Nunley, a prisoner in state custody
at West Tennessee State Prison in Henning, brought suit against the Department
of Correction ("the Department") and its then-Commissioner, Donal Campbell.
Nunley alleges that his request for "placement at a minimum security facility"
was denied. He contends that the denial was based upon the fact that "he
allegedly had an escape charge and/or history." He claims that in 1992 he
pleaded guilty to a "breach of trust" violation and that this violation –
by virtue of a "new rule, regulation, law, policy and/or practice" – is
now considered as a part of his "escape history" precluding his placement at a
minimum security facility. Specifically, Nunley challenges his security
reclassification from minimum security trusty to minimum direct custody. He
seeks a writ of certiorari, a declaratory judgment, and injunction relief. He
relies, in part, on the Uniform Administrative Procedures Act, Tenn. Code Ann.
§ 4-5-101, et seq. (1998) ("the UAPA"). The trial court, acting on the
defendants' Tenn. R. Civ. P. 12.02(6) motion, dismissed Nunley's petition for
failure to state a claim upon which relief can be granted. Nunley appeals,
contending that the application of the "new rule, regulation, law, policy
and/or practice" to his earlier infraction violates the prohibition against ex
post facto laws and that the defendants are acting in an "arbitrar[y], illegal,
and unconstitutional" manner. We affirm.
XI
Properties v. Racetrac Petroleum - M2001-00977-COA-R3-CV
View
Putnam County -
Plaintiffs, XI Properties Inc. et al., purchased land from the defendant,
RaceTrac, adjacent to RaceTrac Petroleum in 1992. Seven years later, XI
Properties, while attempting to develop the property, learned RaceTrac had
inadvertently conveyed to them portions of RaceTrac parking, curbs and light
posts. Plaintiffs proposed to remove the unnatural slope created by the parking
lot, but defendants were concerned about their rights and responsibilities.
Plaintiffs filed a declaratory judgment. Defendants filed a Motion for Summary
Judgment. We reverse the trial court=s grant of summary judgment to XI
Properties as to adverse possession by RaceTrac. We remand the issue to the
trial court to determine if Racetrac can establish possession of the property.
Further we affirm the finding that XI Properties owes no duty to RaceTrac for
lateral support, so long as it does not act negligently.
Donovan Davis v. Ray Maples - M2002-02564-COA-R3-CV
View
Davidson County - An
inmate brought this action to seek judicial review of the Board of Paroles
decision to deny him parole. Because a prisoner has no liberty interest in
early release, we affirm the dismissal of the due process claims brought
herein. We affirm dismissal of that portion of the petition that alleges that
the denial of parole was arbitrary and capricious, but specifically hold that
Mr. Davis may pursue administrative appeal of that denial. We reverse dismissal
of the claim that the Board's decision to defer Mr. Davis's next meeting with
the Board for eleven years is not arbitrary and capricious, and remand that
claim for further proceedings.
In Re: Hunter
Eden; Sommer Eastman v. David Eden - M2002-00521-COA-R3-JV
View
Sumner County - This
appeal arises from the trial court's decision to remove custody of the minor
child from the mother and place him with the father. The trial court considered
testimony regarding the stability of the parents as well as the medical
condition of the mother. The court modified the custody arrangement and ordered
the mother to pay child support. The mother filed this appeal. We affirm.
James Tate v. Glenda Tate -
M2002-01749-COA-R3-CV View
Robertson
County - This appeal concerns the propriety of the trial court's
property division between divorcing parties. As part of its division of the
marital property, the trial court ordered that Husband transfer a home, which
was his separate property, to Wife. The trial court also awarded Wife $4,500.00
as her interest in a Mercedes automobile which the parties purchased for
$15,000.00. We affirm in part, reverse in part, and remand.
Watkins, McGugin, McNeilly & Rowan v. Adedamola
Oni - M2002-01621-COA-R3-CV View
Davidson County - Law
firm brought suit in 2001 against former client to recover payment for
services. The client argued that the law firm represented him on several
different matters, the oldest of which was beyond the six year statute of
limitations in Tenn. Code Ann. § 28-3-109 and therefore recovery by the
law firm was precluded. After a bench trial, the trial court found that the law
firm had represented the client continuously from 1991 to 1998 and that the six
year statute of limitations did not preclude recovery. The trial court entered
a judgment against the client for the amount of attorney's fees owed plus
prejudgment interest. The client appealed. Because the evidence does not
preponderate against the trial court's findings, we affirm.
Edwin Boothe vs. Fred's Inc. - W2002-01414-COA-R3-CV
View
Edwin Boothe
vs. Fred's Inc. - W2002-01414-COA-R3-CV (Dissent)
View
Shelby County -
Defendant-employer terminated plaintiff-employee for cause based on plaintiff's
negligent performance of executive duties. Plaintiff-employee sued employer for
benefits due under employment contract and certain pension plans. Issues at
non-jury trial included whether termination was for cause and the effective
date of termination. The trial court awarded plaintiff damages pursuant to the
employment contract finding, in part, that employer failed to comply with
employment contract provision requiring written notice of termination at least
90 days prior to termination for cause. Trial court also awarded plaintiff
benefits under two stock option plans. Defendant employer appeals. We affirm in
part and reverse in part.
Medtronic Inc vs.
NuVasive Inc. - W2002-01642-COA-R3-CV View
Shelby County - This
is an appeal from a Final Order enjoining Appellant from indemnifying its
employees in their lawsuit against Appellees. Appellant's employees were
previously employed by Appellee. Appellee and Appellant are competing
corporations who, prior to this lawsuit, entered into a Settlement Agreement
with a forum selection clause forbidding Appellant from suing Appellee outside
Tennessee for an eighteen month period. In a lawsuit instigated in California
by Appellees' former employees, Appellant agreed to fund the litigation and to
indemnify those employees against any attorney fees incurred by the employees.
Appellees' suit seeks to enjoin Appellants from further funding of the
employees' action. The trial court granted the injunction and Appellants
appeal. We affirm.
Bobby/Janie Wylie vs.
Farmers Fertilizer vs. Bituminous Casualty - W2002-01227-COA-R9-CV
View
Dyer County - This
case involves damage to an orchard. The plaintiffs' orchard was located
entirely in Gibson County. The defendant fertilizer company was located in Dyer
County. The plaintiff orchard owners sued the fertilizer company, alleging that
the trees in their orchard were damaged by the negligent spraying of herbicides
on nearby crops. The lawsuit was filed in the Dyer County circuit court. The
fertilizer company moved to dismiss for lack of venue, asserting that the
action was local in nature and had to be filed in the county in which the
orchard was situated. The trial court denied the motion to dismiss, finding
that the action was transitory, not local, in nature and was properly filed in
Dyer County. The fertilizer company was granted an interlocutory appeal from
that decision. We reverse, finding that the action is primarily local, not
transitory, in nature and was required to have been brought in Gibson County.
In the interest of justice, however, we remand to the trial court with
instructions to transfer the case to Gibson County, pursuant to Tennessee Code
Annotated § 16-1-116.
SDS & Assoc. vs.
Building Plastics - W2002-01532-COA-R3-CV View
Shelby County - This appeal
involves breach of contract action by appellant corporation which provided
telecommunication services to appellee corporation. Appellee corporation filed
a counter-claim for breach of a separate contract between the parties whereby
appellant was to provide freight auditing services to appellee. The trial court
rendered judgment for appellant on the first contract in an amount less than
that sued for and rendered judgment for the appellee on the counter-claim.
Appellant appeals. We affirm.
Cases posted the week of 08/18/2003
Bobby Cunningham v. Terry Lester -
M2002-00887-COA-R3-CV View
Bedford County - This dispute arises from an auction sale of
real property. The trial court awarded plaintiff buyer specific performance of
one contract and denied specific performance of a second contract. We
affirm.
James P. Lea vs. Linda Gayle Lea -
E2003-00041-COA-R3-CV View
Hamilton
County - Husband asked Trial Court to terminate alimony obligation,
and the amount of alimony was reduced. On appeal, we affirm, as modified.
Kim Brown & Petet Petersen vs. Hamilton
County E2002-02474-COA-R3-CV View
Hamilton County - Action filed pursuant to the Governmental
Tort Liability Act was dismissed on the grounds defendant's acts were
planning/discretionary functions and immune. Also Public Duty Doctrine barred
recovery. We reverse and remand.
Cases posted the week of 08/11/2003
Aziza Kljajic v. Mirzet Kljajic -
M2002-01294-COA-R3-CV View
Davidson County - This
case raises the question of jurisdiction over a nonresident, in a divorce filed
by a Tennessee resident who also seeks custody of the parties' minor children,
child support and attorney fees. We hold that the court has jurisdiction to
grant the divorce and award custody but does not have jurisdiction to award
child support or attorney fees.
Tony Baldwin
v. Board of Paroles - M2002-01428-COA-R3-CV View
Davidson County - A
prisoner in the custody of the Tennessee Department of Correction became
eligible for parole after serving over twenty years of his sentence. The Parole
Board conducted a hearing, and voted to deny him parole. They also decided to
defer further parole consideration for another twenty years. The prisoner filed
a Petition for Writ of Certiorari, which the trial court denied. We reverse the
deferral, because we find that the decision to defer further parole
consideration for so many years constitutes an arbitrary exercise of the Parole
Board's authority.
Jack Forrest v. City of
Ridgetop - M2002-01176-COA-R3-CV View
Robertson County - The
plaintiff, Jack Edward Forrest, brought this wrongful discharge action against
the defendants, City of Ridgetop, Commissioner of Police and Fire Ken Parsons,
Chief of Police Paul Myers and Ridgetop Mayor Darrell Denton. The defendants
moved for summary judgment, relying upon affidavits and statements of
undisputed material facts purporting to show that the plaintiff was discharged
for failure to uphold a minimum standard of conduct, evidenced by
insubordination, disobedience to a written directive, use of a recording device
at a staff meeting and use of a personal vehicle for police action. The trial
court, in granting summary judgment, found that the plaintiff failed to prove a
prima facie case that he was wrongfully discharged from his employment in
violation of the Public Protection Act of Tennessee, T.C.A.§ 50-1-304, and
failed to prove the reasons given for his termination by the City of Ridgetop
were pretextual. We affirm.
John Hasty v.
Bobbie Hasty - M2002-01756-COA-R3-CV View
Williamson County - The
Petitioner seeks a reduction/termination of his alimony obligation based upon
asserted material change of circumstances. The divorce was granted in 1994;
thereafter the Respondent began receiving her awarded share of the Petitioner's
retirement benefits, and Social Security benefits, both of which were within
the contemplation of the parties at the time of the divorce, and thus cannot
constitute a material change of circumstances.
First Presbyterian Church vs. Board of
Equalization - E2003-00128-COA-R3-CV View
Hamilton County -
Ms. Madeline D. Apple bequeathed her house to First Presbyterian Church of
Chattanooga ("the Church") to be used for the temporary housing and convenience
of the Church's missionaries. The Church filed a formal application with the
Board of Equalization requesting the house be exempted from property taxation
because it was used purely and exclusively for carrying out the Church's
missionary work. The request for exemption was denied, a decision later upheld
by an Administrative Law Judge and then by the Assessment Appeals Commission.
The Church appealed the final decision of the Assessment Appeals Commission to
the Hamilton County Chancery Court ("Trial Court"). After a hearing, the Trial
Court concluded the house was not used purely and exclusively for religious
purposes and denied an exemption. The Church appeals, and we affirm.
Trumbo Inc. vs. Witco Corp. - W2002-01186-COA-R3-CV
View
Shelby County - This
case involves the loss of evidence. A metal fabrication company modified a fat
melting tank for another company. Later, an employee of the melting tank
company was severely injured by hot melted fat while working with the modified
tank. Following the accident, as part of an investigation, the employer removed
the two temperature gauges attached to the tank. The employer paid workers'
compensation benefits to the employee. The employee then sued the fabrication
company that modified the tank. The employer intervened to assert its statutory
lien under the workers' compensation laws, so that it could recover any monies
paid to the employee by the fabrication company. Five years after the accident,
the fabrication company sought production of the temperature gauges from the
employer, as part of its defense in the lawsuit filed against it by the
employee. The employer was unable to locate the gauges. The fabrication company
settled the lawsuit filed by the injured employee, and filed a claim against
the employer for spoliation of evidence and negligence. The fabrication company
argued that it was forced to settle the underlying lawsuit with the employee,
in part because of the missing gauges. The trial court granted a motion for
summary judgment in favor of the employer, finding that the employer did not
have a duty to preserve the evidence and that the fabrication company had not
established causation. The fabrication company appeals. We affirm, finding that
regardless of whether the employer had a duty to preserve the temperature
gauges, the fabrication company had not proffered evidence that the gauge would
have materially assisted it in defending the lawsuit filed by the employee, and
thus was unable to establish causation.
Joe
Hales vs. Shelby County - W2002-01539-COA-R3-CV
View
Shelby County -
This appeal arises from a claim involving an injury sustained by a county
employee. The trial court awarded the plaintiff $216,400.00 for injuries
sustained while working for Shelby County. The trial court then denied Shelby
County's post-trial motion seeking a credit or offset for wage continuation
benefits already paid to the plaintiff. The parties raise multiple issues on
appeal. For the following reasons, we affirm.
Linda Bradley v. John Waderker -
M2002-02017-COA-R3-CV View
Montgomery County - A
driver and the passengers in his 1993 Ford Explorer appeal a non-jury judgment
of the Circuit Court of Montgomery County. The Ford Explorer collided with a
police cruiser at an intersection in the City of Clarksville. The trial court
held both drivers to be equally at fault and dismissed the case. We affirm the
trial court.
Tamara Fontaine v. Weekly
Homes - M2002-01651-COA-R3-CV View
Williamson County -
Defendants/appellants appeal the trial court's denial of their motion to compel
arbitration. We affirm.
Dept of Children's
Srvcs. v. Carah Demarr - M2002-02603-COA-R3-CV View
Lawrence County - This
case involves termination of parental rights of a mother and custody of the
child. The child at issue was found wandering away from his mother's house on
March 3, 1999, and was taken into DCS custody, after which the matter
languished for over a year without appropriate administration by DCS and with
the mother having very little contact with her child. The mother eventually
moved out of state and requested that her child be transferred to that state.
The case was not transferred, and the mother continued to receive very little
cooperation from DCS and have sparse communication with her child. She was,
however, attempting to fulfill the requirements of the DCS prepared Permanency
Plan. Her parental rights were terminated by the Juvenile Court for Lawrence
County in December 2001 for abandonment by willful failure to visit and willful
failure to support the child for four months prior to the filing of the
termination petition. We reverse the trial court's finding that the mother's
failure to visit and failure to support was willful.
Judith Walker v. City of Cookeville / Cookeville
Regional Medical - M2002-01441-COA-R3-CV View
Putnam County -
This appeal involves an employment dispute between the Cookeville Regional
Medical Center and a senior management employee. After the hospital's chief
executive officer removed the employee from her position as Interim Assistant
Administrator and Director of Quality Management, the employee resigned and
filed suit in the Circuit Court for Putnam County alleging that the hospital
breached her employment contract by declining to pay her the severance benefits
required by her employment contract. Following a bench trial, the court found
that the hospital had breached the employment contract and awarded the employee
severance benefits, prejudgment interest, and discretionary costs. The hospital
argues on this appeal that the employee was not entitled to severance pay
because (1) she had voluntarily resigned, (2) the parties understood that the
employee's appointment as assistant administrator was not permanent, and (3)
the employee's demotion did not materially alter her duties or status. We
affirm the judgment because the hospital breached the employee's contract when
it demoted her and declined to pay her the severance benefits required by her
employment contract.
Prodigy Services
v. Ruth Johnson - M2002-00918-COA-R3-CV View
Davidson
County - The Tennessee Commissioner of Revenue assessed Prodigy
Services Corporation, Inc. for sales and use taxes on "telecommunication
services" as defined in Tenn. Code Ann. § 67-6-102(29)(now codified at
Tenn. Code Ann. § 67-6-102(31)(Supp. 2002)). Prodigy challenged the
assessment in the Chancery Court of Davidson County. The court granted Prodigy
summary judgment, concluding that Prodigy's online computer information
services did not meet the description of the taxable event in the statute. We
affirm.
Ken Stephens v. Roane State
Community College - M2001-03155-COA-R3-CV View
Davidson County
- This is a sexual harassment case. The plaintiff was a tenured professor at
the defendant college. In 1996, one of the professor's students filed a
complaint of sexual harassment with the college, alleging that the professor
engaged in unwelcome sexual conduct and created a hostile educational
environment. After a hearing, an administrative law judge determined that the
professor had committed the acts charged. Consequently, the professor was
suspended without pay for six months. The professor appealed the administrative
decision to the trial court. The trial court upheld the decision, using a
deferential standard of review, and the professor filed the first appeal in
this case. On appeal, this Court reversed and remanded for a review de novo on
the record. On remand, the trial court reviewed the case de novo on the record
and again upheld the ALJ's decision. The professor now appeals. We affirm,
finding that the trial court did not abuse its discretion in refusing to allow
the professor to testify in person at the rehearing on remand, and that the
trial court did not err in finding that the ALJ's decision was supported by
clear and convincing evidence.
Mitch
Stooksbury vs. American National Property - E2002-02385-COA-R3-CV
View
Anderson County -
Mitch and Gina Stooksbury ("Plaintiffs") purchased homeowners insurance from
American National Property and Casualty Company ("Defendant"). After
Plaintiffs' home was destroyed by fire, they were informed by Defendant that
their insurance policy had been cancelled prior to the date of loss because of
an underwriting risk arising from missing railing on a deck. Defendant claimed
to have mailed a cancellation notice and refund check to Plaintiffs in
accordance with the terms of the policy. Plaintiffs denied receiving the
cancellation notice or refund check. A jury concluded Defendant failed to prove
by a preponderance of the evidence that it mailed the cancellation notice to
Plaintiffs. The jury also concluded Defendant acted unfairly and in bad faith,
and that Defendant's failure to pay the loss was through fraudulent and
deceptive practices. The Trial Court entered a judgment for Plaintiffs in the
amount of $92,750, for damages pursuant to the insurance contract, plus
prejudgment interest on that $92,750. The Trial Court also assessed a 25% bad
faith penalty and an additional 5% for punitive damages. Both parties appeal.
We affirm the judgment for Plaintiffs in the amount of $92,750 and the
prejudgment interest awarded on that $92,750. The bad faith penalty and award
of punitive damages is reversed.
Stephanie
Medlyn vs. Peter Medlyn - E2002-02031-COA-R3-CV
View
Grainger County -
Wife's action to enforce Divorce Settlement Agreement resulted in monetary
judgment against husband. On appeal, we affirm.
In Re: Estate of Flora King vs. John B. Oakley -
E2002-01745-COA-R3-CV View
Sevier County - In this will contest, the Trial
Court granted the Executor summary judgment upholding the Will. On appeal, we
affirm.
Dpt. of Child. Services vs. DLSJ -
E2002-00241-COA-R3-JV View
Knox
County - The Trial Court on petition of the Department, terminated the
mother's parental rights to the child. On appeal, we affirm.
Steve Fritts vs. Anderson County Election Commission
& Jerry Creasey vs. Anderson County Elections Commission -
E2003-00015-COA-R3-CV & E2002-03118-COA-R3-CV View
Anderson County - In
this election contest of two seats on the County Commission, the Trial Court
declared the top vote getter elected to one of the seats and ordered another
election between the other candidates for the other seat. On appeal, we affirm.
Dept. of Transportation vs. Sammy/Yvonne
Hanna - W2002-00152-COA-R3-CV View
Hardin County - This is a
condemnation case. The Tennessee Department of Transportation alleges that the
trial judge committed error by allowing the landowners to discover the opinions
of an appraiser not designated to testify at trial and that these errors
require overturning the jury's verdict because of the prejudice they caused. We
find that errors were committed in the court below, but that these errors were
harmless. Therefore, we affirm the verdict of the jury.
AmSouth Erectors vs. Skaggs Iron -
W2002-01944-COA-R3-CV View
Shelby County -
This appeal concerns a subcontractor's (AmSouth) claims for non-payment arising
from the construction of the Peabody Place Retail and Entertainment Center in
Memphis. The Appellees are the owner (Peabody), and the management firm they
hired to oversee the project (Tri-Tech). The Appellant is a subcontractor in
privity of contract with neither Appellee. The trial court granted summary
judgment to Peabody on AmSouth's claims of Breach of Contract (under a
Third-Party Beneficiary theory), Negligence, Negligent Misrepresentation,
Unjust Enrichment/Quantum Meruit, and a claim to enforce a mechanics' and
materialmen' s lien. Summary judgment was likewise granted to Tri-Tech on
AmSouth's claims against it for Breach of Contract (under a Third-Party
Beneficiary theory), Negligent Misrepresentation, and Negligence. We affirm in
part, reverse in part, and remand.
Cases posted the week of 08/04/2003
Jimmy Allen and Donna Allen v. Wilson County
Investors, LLC, Tom Paschal, Trustee for Cumberland Bank, J. Atwell Scruggs,
III, Substitute Trustee for the Ruth S. Scruggs Revocable Trust, and J. Atwell
Scruggs and Eleanor S. Lowe. - M2002-00540-COA-R3-CV
View
Wilson County - This
case involves an uncollected 1981 judgment against Mrs. Ruth Scruggs,
individually and as trustee. Ms. Scruggs died intestate on September 20, 1998.
On June 3, 1998, the judgment creditors received a writ of scire facias and the
judgment was revived on June 26, 1998. The judgment was registered in Wilson
County on November 9, 1998. Her Wilson County property was sold by her heirs on
January 15, 2000. On October 19, 2001, the judgment creditors filed suit to
enforce their lien. The trial court held for the defendants finding that Ms.
Scruggs died over a month prior to the lien's filing; thus, she was not vested
with any real property, pursuant to Tennessee Code Annotated section 31-2-103,
at the time the lien was filed. We affirm the trial court, finding, in
addition, that Ms. Scruggs was never properly served with the scire facias,
thus the judgment on that writ is void, and that the registered lien had
expired under § 25-1-105 of the Code.
Richard Hughey v.Metro Gov' t Nashville and Davidson
County - M2002-02240-COA-R3-CV View
Davidson County -
Richard Hughey, a former Metropolitan Nashville police officer, appeals the
action of the Chancery Court of Davidson County in affirming the adverse
decision of the Metropolitan Civil Service Commission, which had rejected his
application for police department employment. We affirm the action of the
Chancellor.
Christopher Pope v. Dept of
Correction - M2001-02937-COA-R3-CV View
Davidson County - A
prisoner in the custody of the Department of Correction was found guilty of a
disciplinary offense and sentenced to punitive segregation. He subsequently
filed a Petition for Writ of Certiorari, claiming that he was not afforded due
process during the disciplinary hearing at which he was convicted. The trial
court dismissed his Petition for failure to state a claim. We affirm the trial
court.
Alexander Wells v. State -
M2002-01958-COA-R3-CV View
A tenured
professor successfully challenged his dismissal through a review in the
Chancery Court of Davidson County. Subsequently he filed a claim against the
state in the Claims Commission for breach of contract. The Commission dismissed
the claim on jurisdictional grounds. We affirm the conclusion that the claim
was not based on a "written contract."
Eric
Young v. Dept. of Corrections - M2002-01086-COA-R3-CV
View
Davidson County - A
prison inmate was convicted of a disciplinary offense, and sentenced to
punitive segregation. He filed a Petition for Writ of Certiorari, claiming
there were serious procedural defects in the disciplinary proceeding. The trial
court dismissed his Petition as time-barred. We affirm the trial court.
Steven Griffin v. William Roberts -
M2002-01898-COA-R3-CV View
Davidson County - An
inmate in the custody of the Department of Correction filed a legal malpractice
suit against the court-appointed attorney who represented him in his
post-conviction appeal. Despite many attempts, the inmate failed to obtain
service on the attorney. More than three years after suit was filed, the court
dismissed the case for lack of prosecution. We affirm the trial court.
Steven Perry v. Kelly Perry v. Thelma
Perry - M2002-01180-COA-R3-CV View
Wilson County - The
Circuit Court of Wilson County awarded custody of a minor child to the paternal
grandmother. The child's mother, to whom custody had been awarded in the
divorce, asserts that the facts do not support such a drastic remedy. We affirm
the judgment of the trial court.
Jennifer Rial
v. Terry Rial - M2002-01750-COA-R3-CV View
Hickman County - Mother
petitioned the court for change of child custody. The trial court found no
material change of circumstances justifying such change and dismissed the
petition. We affirm.
Michael Street v. Levy
(Wildhorse) Limited Partnership - M2002-02170-COA-R3-CV
View
Davidson County -
This appeal involves a patron at a Nashville night spot who was seriously
injured by a broken glass tray left unattended on a table. In addition to the
laceration on his leg, the patron fell and hit his face against the floor. The
patron later filed suit against the night spot in the Circuit Court for
Davidson County seeking damages not only for the laceration of his leg but also
for internal derangement of his temporomandibular joint caused by his fall. The
night spot conceded its negligence, and, after conducting a bench trial on the
question of damages, the trial court awarded the patron $8,937.00 for his
medical expenses, pain and suffering, and loss of enjoyment of life. On this
appeal, the patron takes issue with the trial court's refusal to award him
$1,133.00 in medical expenses and with the amount of the award for pain and
suffering and loss of enjoyment of life. We have determined that the trial
court lacked any basis for declining to award the patron all his medical
expenses and that the evidence does not preponderate against the award for pain
and suffering and loss of enjoyment of life.
Cases posted the week of 07/28/2003
Ronnie Erwin v. Moon Products -
M2002-00877-COA-R9-CV View
Marshall
County - This is an appeal from a denial of an application to compel
arbitration. For the following reasons, we affirm the court below.
Thomas Harrison v. Earl Laursen -
M2000-00482-COA-R3-CV View
Giles County - This
is the fourth appeal regarding the sale of a 128-acre farm in Giles County. The
sellers originally sued the buyers in the Chancery Court for Giles County in
1991, alleging that the buyers had breached the contract by defaulting on their
payments. The buyers counterclaimed, asserting that the sellers had breached
the contract by failing to provide city water to the property and that the
sellers had committed fraud and violated the Tennessee Consumer Protection Act.
On the first appeal, this court affirmed the trial court's judgment rescinding
the sale but remanded the case with directions to address the question of
damages. The case was tried five more times and was appealed twice. In the
sixth trial, a jury awarded the buyers $32,444.42. On this the fourth appeal,
the buyers take issue with the trial court's exclusion of evidence regarding
the sellers' alleged fraud, the jury's calculation of the increased value of
the property, and the trial court's refusal to award them prejudgment interest.
We affirm the judgment.
Joseph Nolen v. Amy
Nolen - M2002-00138-COA-R3-CV View
Joseph Nolen v. Amy Nolen - M2002-00138-COA-R3-CV
View
Hickman County -
This appeal arises from the trial court's decision to award custody of the
parties' minor children to third party custodians. After finding each parent
unfit, the chancellor awarded custody of the daughter to the mother's aunt and
the son was awarded to an unrelated third party. Parenting time was established
every first and second weekend with the third party custodians having the third
weekend. Holiday parenting time was also included. Most importantly the
siblings were reunited during these times with their parents. Both parties were
ordered to split the child support obligation owed to the third parties. The
father filed this appeal. We affirm.
Tiffany Senn v. Romando Haynes -
M2002-01519-COA-R3-JV View
Rutherford County -
Tiffany T. Senn (Williams) appeals the action of the Juvenile Court of
Rutherford County, changing the primary residential custody of her minor child
from Tiffany Senn to the biological father of the child, Romando Haynes. We
affirm the action of the trial court.
Rebecca
Lew vs. Ira Lew - E2002-01811-COA-R3-CV View
Anderson County - In this
divorce case, Ira Eugene Lew ("Husband") appeals the Trial Court's judgment
declaring the parties divorced on the ground of irreconcilable differences, and
approving and incorporating the parties' marital dissolution agreement ("MDA")
in its order. Husband argues that the Court was without power to enter its
judgment because he had withdrawn his consent and agreement to the MDA prior to
the Court's entry of final judgment. The Trial Court found that Husband could
not withdraw his consent to the MDA because, as a consequence of the unusual
procedural posture of the this case, the parties had already executed, agreed
to, and signed the MDA and presented it to the Trial Court, which approved it
and incorporated it into a previous order. We affirm the judgment of the Trial
Court.
In Re: Petition of James F. Watson,
General Sessions Court Judge - E2002-02480-COA-R3-CV
View
McMinn County -
This is a declaratory judgment action. Judge James F. Watson was, at all
relevant times, the general sessions court judge for McMinn County. Prior to
2000, McMinn County was classified as a county of the second class and Judge
Watson was paid in accordance with the statutory compensation scheme for such
counties. As a result of the 2000 census, McMinn County became a county of the
first class. Judge Watson filed a petition seeking a determination as to the
proper calculation of his salary as a class one general sessions court judge.
The trial court determined that Judge Watson was entitled to continue receiving
the jurisdictional supplements to his salary that he had been receiving as a
class two judge. We reverse.
Norma Pendolal
v. Shirley Butler - M2002-00131-COA-R3-CV View
Perry County - This is
an undue influence and fraud case. The father executed a will leaving his
personal and real property to one daughter, with the remainder of his estate to
be divided among all five of his children. The daughter moved from Chicago to
Tennessee to care for the father. The father added the daughter's name to his
checking account and bought a mobile home in which he and the daughter lived.
The daughter utilized money from the joint checking account for her personal
benefit. Later, the father executed a power of attorney in the daughter's
favor. The daughter then transferred one of the father's certificates of
deposit to herself. When the father died, no funds remained to be divided among
the five siblings. The father's other four children filed suit against the
daughter, alleging undue influence. The trial court referred the case to a
special master, who found there was no confidential relationship prior to
execution of the power of attorney. The special master found, however, that a
confidential relationship existed after the execution of the power of attorney.
The trial court found that the daughter rebutted the presumption of undue
influence and invalidity of the transaction that took place after execution of
the power of attorney. The trial court then concurred in the special master's
findings. The plaintiffs appeal. We affirm as to the transactions prior to
execution of the power of attorney. We reverse as to the transaction after
execution of the power of attorney, concluding that the presumption of the
invalidity of that transaction was not rebutted by clear and convincing
evidence of the fairness of the transaction.
Tina Gray v. Glen Gray - M2002-01365-COA-R3-CV
View
Rutherford County -
The trial court granted the parties a divorce, classified the husband's auto
salvage business as his separate property, and divided the property the parties
had acquired during their marriage. On appeal, the wife contends that the trial
court erred by not considering the auto salvage business to be marital
property, and by ordering a property division that was inequitable as to her.
We affirm the trial court.
Daniel Sherwood v.
Microsoft - M2000-01850-COA-R9-CV View
Daniel Sherwood
v. Microsoft - M2000-01850-COA-R9-CV (Concur)
View
Davidson
County - In this appeal, Plaintiffs, purchasers of Microsoft software,
sued Microsoft alleging that the company violated the Tennessee Trade Practices
Act and the Tennessee Consumer Protection Act and claiming that they paid
inflated prices for software due to Microsoft's alleged violations of Tennessee
antitrust law. Microsoft filed a motion to dismiss arguing that Tennessee
antitrust law applies to activities that are predominantly intrastate in
character and that Microsoft's business is predominantly interstate. Microsoft
also argued that indirect purchasers have no cause of action under the
Tennessee Trade Practices Act. The trial court found that federal law does not
provide a remedy for indirect purchasers in antitrust cases and, consequently,
those purchasers must have a Tennessee state law remedy. The trial court denied
the motion to dismiss the claims of the indirect purchasers, but because direct
purchasers have a federal law remedy, dismissed the claims of the direct
purchasers. We affirm in part, reverse in part, and hold: (1) indirect
purchasers may bring an action for damages under the Tennessee Trade Practices
Act; (2) the Tennessee Trade Practices Act applies to activity that has
substantial effects on commerce within the state, and Plaintiffs have made
sufficient allegations of such effects; and (3) the Tennessee Consumer
Protection Act does not apply to antitrust causes of action or anticompetitive
conduct.
Flynn's Lick Comm